NEW YORK — President Donald Trump’s tax returns can be turned over to New York prosecutors by his personal accountant, a federal appeals court ruled Monday, leaving the last word to the Supreme Court.
The decision by the 2nd U.S. Circuit Court of Appeals in Manhattan upholds a lower court decision in the ongoing fight over Trump’s financial records. Trump has refused to release his tax returns since he was a presidential candidate, and is the only modern president who hasn’t made that financial information public.
In a written decision, three appeals judges said they only decided whether a state prosecutor can demand Trump’s personal financial records from a third party while the president is in office.
The appeals court said it did not consider whether the president is immune from indictment and prosecution while in office or whether the president himself may be ordered to produce documents in a state criminal proceeding.
“We hold that any presidential immunity from state criminal process does not bar the enforcement of such a subpoena,” 2nd Circuit Chief Judge Robert A. Katzmann wrote.
According to the decision, a subpoena seeking Trump’s private tax returns and financial information relating to businesses he owns as a private citizen “do not implicate, in any way, the performance of his official duties.”
“We are not faced, in this case, with the President’s arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything,” the 2nd Circuit said. “The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.”
Several weeks ago, U.S. District Judge Victor Marrero in Manhattan tossed out Trump’s lawsuit seeking to block his accountant from letting a grand jury see his tax records from 2011.
Manhattan District Attorney Cyrus R. Vance Jr. sought the records in a broader probe that includes payments made to buy the silence of two women, porn star Stormy Daniels and model Karen McDougal, who claim they had affairs with the president before the 2016 presidential election. Trump has denied them.
Danny Frost, a spokesman for Vance, declined to comment.
The lawyer who argued the case on Trump’s behalf before the appeals court did not immediately respond to a message seeking comment.
During oral arguments, Trump’s lawyer told the 2nd Circuit that Trump is immune from state criminal law even if he shoots someone because he’s president.
Vance’s attorneys have argued that Trump is not above the law while the president’s lawyers have said the Constitution prohibits states from subjecting the U.S. president to criminal process while he is in office.
In the subpoena to Trump’s longtime accountant, Vance’s lawyers call for financial and tax records of entities and individuals, including Trump, who engaged in business transactions in Manhattan.
The 2nd Circuit noted that Trump has not been charged with a crime, but his lawyers have acknowledged that he could be criminally prosecuted after he leaves office.
“Even assuming, without deciding, that a formal criminal charge against the President carries a stigma too great for the Constitution to tolerate, we cannot conclude that mere investigation is so debilitating,” the appeals court said. “There is no obvious reason why a state could not begin to investigate a President during his term and, with the information secured during that search, ultimately determine to prosecute him after he leaves office.”
Trump’s lawyers have said the probe by Vance, a Democrat, is politically motivated.
U.S. Justice Department lawyers in Washington also urged the 2nd Circuit to reverse the findings of the lower court, saying Vance must prove “particularized need” for the records before they are released to a grand jury.
Vance’s investigation comes as the president faces impeachment hearings initiated by House Democrats after the president tried to get Ukraine’s leader to investigate his political rival Joe Biden.