The height of Donald Trump’s megalomania is hard to determine as he seems to scale new peaks daily, but a strong candidate for that position came at an Iowa campaign rally on January 23, 2016, when he said “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters,” while folding his fingers into the shape of a gun.
While some took the comment as a joke or as a hyperbolic exaggeration, those who took it as a warning of the invincible and privileged manner in which Trump would approach the rule of law during his presidency were proven right today by an exchange in a federal appeals court in Manhattan.
A three-judge panel was hearing the arguments from Donald Trump’s lawyers who were trying to reverse a lower court decision that would allow New York state prosecutors to subpoena the president’s personal and corporate tax returns by using the extremist argument that the POTUS is entirely immune from criminal investigation while in office, even at the state level.
The New York Times provided a description of the exchange between the appeals court’s chief judge, Robert Katzmann, and the president’s legal team over their claim that Trump could not even be investigated while he was in office.
“’Why can’t we think about this case in a narrow sense?’ Judge Katzmann asked,” The Times wrote.
“The judge later added: ‘We don’t have to confront the question of whether the president is immune from indictment and prosecution while in office.’”
“A lawyer for Mr. Trump, William S. Consovoy, said the president’s immunity from criminal prosecution even extended to Mr. Trump’s famous claim that he could shoot someone on Fifth Avenue without losing political support.”
“Carey Dunne, the general counsel for the district attorney in Manhattan, introduced the Fifth Avenue argument in the hearing, asking, ‘Would local police be disabled from restraining such a person or from processing such a person?’”
“’Would we have to wait for an impeachment proceeding to be initiated?’ he added.”
“Later, another of the judges, Denny Chin, posed the hypothetical to Mr. Consovoy. ‘Local authorities couldn’t investigate? They couldn’t do anything about it’” he asked. ‘Nothing could be done? That’s your position?'”
“’That is correct. That is correct,’ Mr. Consovoy said.”
There you have it — straight from the mouths of the president’s own lawyers —the smoking gun with no consequences whatsoever.
Those of us of a certain age remember the last time a president tried to claim that “When the president does it, that means that it is not illegal,” as Richard Nixon once told British journalist David Frost in a famous interview. You all know how well that worked out in the end.
While Trump’s attorneys are surely paid handsomely for making the arguments that the president insists that they make, if they graduated from law school they should know how to look up the Supreme Court precedent already established on the issue of presidential immunity from local prosecution for crimes unrelated to the exercise of the powers of his office.
Clinton v. Jones (1997) clearly states that “it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. Additionally, the Court said that “we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”
While the process may be slow and halting — and may require another trip to the Supreme Court for a ruling — it looks likely that New York state prosecutors will eventually get to see Donald Trump’s tax returns. Whether he will still be in office by the time they actually get ahold of them remains an open question that could render the entire legal wrangle over their accessibility a moot point.
Eventually, unless Trump makes good on his joking remarks about remaining in office beyond the constitutionally-mandated terms limits and appoints himself president-for-life in a dystopian future version of a once democratic nation, his tax returns will be revealed, along with any crimes that they may reveal, and Trump will be held accountable.
If he is not, all hope for democracy is gone.
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Original reporting by Benjamin Weiser and