Immunity from criminal investigation for Trump? Tax case gives court a pivotal choice

WASHINGTON (NYTIMES) - In a matter of days, United States President Donald Trump will ask the Supreme Court to rule on his bold claim that he is absolutely immune from criminal investigation while he remains in office.

If the court agrees to hear the case, its decision is likely to produce a major statement on the limits of presidential power - and to test the independence of the court itself.

President Trump has been the subject of countless investigations and lawsuits since he took office, including a 22-month inquiry by special counsel Robert Mueller, appointed to look into his campaign's ties to Russia.

But the new case, concerning an investigation by Manhattan prosecutors into hush-money payments to two women who said they had affairs with Mr Trump, will be the Supreme Court's first chance to consider the President's arguments that he is beyond the reach of the justice system.

The case concerns a subpoena to Mr Trump's accounting firm, Mazars USA, from the office of the Manhattan district attorney Cyrus Vance Jr, a Democrat. On Monday (Nov 5), the federal appeals court in Manhattan rejected Mr Trump's request to block the subpoena, which seeks eight years of his personal and corporate tax returns.

The appeals court's ruling was narrow and modest, hewing closely to the circumstances of the dispute before it. If the Supreme Court adopted the lower court's reasoning, it would answer only the question of whether state prosecutors may require third parties to turn over a sitting president's financial records for use in a grand jury investigation.

But such a ruling, rejecting a sweeping claim of immunity, would nonetheless be a once-in-a-generation reckoning with whether and how presidents can be investigated.

Since the subpoena is directed to the accounting firm and not Mr Trump, the case is unlikely to produce a constitutional crisis. Had prosecutors sought evidence from Mr Trump, there was at least a possibility that he would try to defy a Supreme Court ruling against him, prompting a crisis.

But the accounting firm has indicated that it will turn over the documents if Mr Trump loses in court, and he appears to be powerless to stop it.

Mr Trump has fought hard to shield his tax returns from scrutiny, for reasons that have been the subject of much speculation. In a footnote to Monday's decision, Chief Judge Robert Katzmann, writing for a unanimous three-judge panel of the US Court of Appeals for the 2nd Circuit, said that Mr Trump's break with his predecessors' practice was significant.

"We note that the past six presidents, dating back to president (Jimmy) Carter, all voluntarily released their tax returns to the public," Judge Katzmann wrote. "While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office."

When the case was argued last month, Judge Katzmann said he did not expect his court to have the last word. "This case seems bound for the Supreme Court," he said.

Mr Vance's office has agreed to put off enforcing the subpoena so long as Mr Trump's lawyers seek Supreme Court review within 10 days of the appeals court's decision and ask the justices for prompt action, which the lawyers have said they will do.

The Supreme Court is dominated by five Republican appointees, two of them named by Mr Trump. But earlier Supreme Court cases in which presidents sought to avoid providing evidence did not break along partisan lines.

The court was unanimous in ruling against presidents Richard Nixon and Bill Clinton in such cases, with Nixon and Clinton appointees voting against the presidents who had placed them on the court. The Nixon case led to his resignation in the face of mounting calls for his impeachment. The Clinton case led to Mr Clinton's impeachment, though he survived a Senate vote on his removal.

Mr Trump's lawyers have said that their case is different, calling the subpoena "a bad-faith effort to harass the president by obtaining and exposing his confidential financial information, not a legitimate attempt to enforce New York law".

Mr Vance's office, responding in court papers, accused Mr Trump of "seeking to invent and enforce a new presidential 'tax return' privilege" and said he had never sought to block earlier investigations, by the special counsel's office or by federal prosecutors in Manhattan.

The subpoena was issued in connection with the investigation of the role that Mr Trump and the Trump Organisation played in hush-money payments made in the run-up to the 2016 election. Both Mr Trump and his company reimbursed the president's former lawyer and fixer, Michael Cohen, for payments made to pornographic film actress Stormy Daniels who claimed that she had an affair with Mr Trump.

Cohen was also involved in payments to Ms Karen McDougal, a Playboy model who had also claimed she had a relationship with Mr Trump. The President has denied the relationships.

The Supreme Court's consideration of whether the subpoena is proper would balance a reluctance to impose burdens on the president's ability to discharge his constitutional responsibilities against the needs of the justice system. In the Nixon and Clinton cases, the court struck that balance in ways that mostly seem to help the Manhattan prosecutors.

In the Nixon case, the Supreme Court unanimously ruled that he had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office. Chief Justice Warren Burger, a Nixon appointee, wrote the decision.

At his confirmation hearings last year, Justice Brett Kavanaugh, Mr Trump's second appointee, praised the decision. "It was one of the greatest moments because of the political pressures of the time," he said. "The courts stood up for judicial independence in a moment of national crisis." The message of the Nixon decision, he said, was clear. "No one is above the law in our constitutional system," he said.

The Supreme Court rejected Mr Nixon's claim of executive privilege, saying that the needs of the criminal justice system were more important. By contrast, Mr Trump has not invoked executive privilege, as the contested subpoena concerns his private conduct and not his official communications.

In the Clinton case, the Supreme Court unanimously allowed a sexual harassment suit against Mr Clinton to move forward while he was in office. Both of his appointees, Justices Ruth Bader Ginsburg and Stephen Breyer, voted against him.

"The president is subject to judicial process in appropriate circumstances," Justice John Paul Stevens wrote for the court.

The ruling rejected Mr Clinton's argument that making him respond to a suit from Ms Paula Jones would be a burdensome distraction of constitutional dimensions. (Ms Jones said Mr Clinton had made lewd advances in an Arkansas hotel room when he was governor of the state.)

The case against Mr Clinton was brought in federal court, while the subpoena in Mr Trump's case came from a local grand jury. The distinction matters, as the Supreme Court based its decision in the Clinton case on the separation of powers, which concerns the branches of the federal government.

The two sides in the current case have agreed to a very speedy schedule, one that could allow the Supreme Court to announce next month whether it will hear the case and to rule by June, when its current term ends and the presidential campaign enters its final months.

Or the Supreme Court could, of course, simply deny review, leaving in place the appeals court ruling and effectively requiring Mr Trump's accountants to turn over his tax returns.