A Look At The Court Cases Where The Trump Administration Is Fighting Subpoenas
AILSA CHANG, HOST:
It seems that almost every day there is another court case involving subpoenas for President Trump's financial records. These are records not from the White House but from his days before he was elected president. So we have asked NPR legal affairs correspondent Nina Totenberg to help us sort out what this fight is all about.
NINA TOTENBERG, BYLINE: Hi, Ailsa.
CHANG: So what exactly are these subpoenas demanding?
TOTENBERG: They are subpoenas for Trump's business records and tax returns that were compiled by the Mazars accounting firm or documents that were filed in compliance with federal ethics rules about government dealings with the Trump hotels - things like that. Trump basically has declared war on all of it. He's seeking to block subpoenas for everything, even subpoenas by a Manhattan grand jury looking into potential criminal conduct.
CHANG: And just to be clear here, if Trump were not president, he would not be able to, under the law, block any of these subpoenas, right?
TOTENBERG: Correct. Let's say a grand jury in Manhattan was looking into my conduct, and they subpoenaed my financial records. My accountant or my bank has to turn those over. It's just routine. So remember when Trump said this?
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PRESIDENT DONALD TRUMP: I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?
TOTENBERG: His legal position now is an expansion of that. It is that there would be nothing anyone in law enforcement could do about the shooting because he argues, as long as he's president, he has total immunity. So presumably, the cops couldn't take the gun away from him, couldn't investigate him and couldn't prosecute him. Yesterday Trump's lawyer, William Consovoy, made that very argument before the Second Circuit Court of Appeals. Here he is being questioned by Judge Denny Chin.
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DENNY CHIN: And what's your view on the Fifth Avenue example? Local authorities couldn't investigate; they couldn't do anything about it - that's your position.
WILLIAM CONSOVOY: That is correct. That is correct.
CHANG: Whoa. Let me just get this straight here. Their legal position is, if President Trump were to kill someone while in office, his lawyers are saying now that Trump could not be investigated or prosecuted for that killing until he leaves office, which could be years later?
TOTENBERG: That's correct.
TOTENBERG: And this carries over to congressional inquiries. Just last week, the Court of Appeals for the District of Columbia upheld a House Oversight Committee subpoena for many of these same Trump financial records that were subpoenaed by the Manhattan DA in New York.
CHANG: So why is everyone going after all these financial records in the first place?
TOTENBERG: Well, in these two cases - and there are more - investigators are pursuing the hush money that porn star Stormy Daniels said she was paid in exchange for her silence during the 2016 campaign and whether that violated the federal campaign finance laws. Trump's lawyer, Michael Cohen, you may recall, admitted being the conduit for that payment in congressional testimony, and he went on to raise further questions about Trump's financial disclosures.
CHANG: So when it comes to a president's immunity from prosecution, what are the legal basics to that?
TOTENBERG: It is true that the long-existing position of the Justice Department has been that a president cannot be indicted or prosecuted while in office. The only mechanism for removal is impeachment and conviction by the Senate. But Trump has two big, fat legal problems. One is the Supreme Court's unanimous decision in the Watergate case, declaring that President Nixon had to honor a grand jury subpoena for White House tape recordings pertinent to a criminal inquiry. The other is the Supreme Court's unanimous decision in 1994 in the Paula Jones case, declaring that neither President Clinton nor any president is immune from a civil lawsuit while in office.
So you can investigate the president. You could, as in the Nixon case, name him as an unindicted co-conspirator. But if you want to remove him from office, impeachment is the way to do it.
CHANG: So do you expect the Supreme Court to hear any of the Trump subpoena cases?
TOTENBERG: Well, the Trump lawyers and the Manhattan DA have agreed to a fast track to the Supreme Court so that the justices could hear that case this term. The Supreme Court is now populated by five conservative justices who normally are big believers in presidential power. Remember that Justice Brett Kavanaugh, before he was a justice, once proposed legislation to grant presidents total immunity while in office. So we're just going to have to wait and see.
CHANG: Yeah. That's NPR's legal affairs correspondent Nina Totenberg.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.