Richard Wolf, USA TODAY Published 2:47 p.m. ET Oct. 23, 2019 | Updated 5:36 p.m. ET Oct. 23, 2019
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One of President Donald Trump’s private attorneys told a federal appeals court panel Wednesday that Trump could not be investigated or prosecuted if he shot someone on Fifth Avenue.
The assertion from William Consovoy, who is trying to block a New York City prosecutor from examining Trump’s tax returns in a criminal investigation, came in response to a hypothetical question about a president’s immunity.
“What’s your view on the Fifth Avenue example?” Judge Denny Chin asked. “Local authorities couldn’t investigate? They couldn’t do anything about it?”
Consovoy said Trump no longer would be immune once he leaves office. “This is not a permanent immunity,” he said.
Chin persisted, asking what would happen to a sitting president.
“Nothing could be done? That is your position?” he asked.
“That is correct. That is correct,” Consovoy responded.
The nearly hour-long oral argument before a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, based in Manhattan, came two weeks after federal District Court Judge Victor Marrero rejected Trump’s claim of absolute presidential immunity from criminal investigations.
The three appeals court judges, all appointed by Democratic presidents, appeared likely to uphold Marrero’s ruling that Manhattan District Attorney Cyrus Vance can subpoena Trump’s tax returns. Vance is probing alleged hush-money payments to two women who allege they had affairs with Trump before he won the White House, allegations that Trump denies.
Chief Judge Robert Katzmann said state and federal tax authorities already have some of the tax records, so disclosing them to Vance and his grand jury might not be that harmful. Judge Christopher Droney noted subpoenas were permitted during the Watergate investigation of President Richard Nixon.
Chin said the subpoenas for tax returns apply to Trump’s private accountants. “The president doesn’t have to do anything to comply,” he said.
Consovoy was adamant in response. “We view the entire subpoena as an inappropriate fishing expedition,” he said. When organizations are targeted for a president’s personal information, they should be immune as well, he said.
But Carey Dunne, general counsel for the Manhattan district attorney’s office, accused the president’s lawyers of “making this up.”
“There is no privilege for tax returns, whether it’s the president or anybody else in the country,” Dunne said. “He may view them as embarrassing or sensitive, but tax returns do in fact get subpoenaed all the time in financial investigations.”
Katzmann acknowledged the panel likely won’t have the last word because its ruling is sure to be appealed to the Supreme Court.
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“We have the feeling that you may be seeing each other again in Washington,” he told the two lawyers.
It was Dunne who first raised the shooting scenario in court, picking up on a claim Trump made during the 2016 campaign that he could shoot someone on Fifth Avenue and lose no political support.
“I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters, okay? It’s, like, incredible,” Trump said while campaigning in Iowa at the time.
Dunne picked up on that hypothetical to argue that a president cannot be immune from all criminal investigations.
“If he, for example, did pull out a handgun and shoot someone on Fifth Avenue, what would be the impact of that?” Dunne said. “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?”
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