Politics

Trump could shoot someone and not be criminally charged until he leaves White House, his lawyer says

Key Points
  • A lawyer for President Donald Trump argued in court that Trump could shoot another person on Fifth Avenue in New York City and not be subject to arrest and prosecution until he left office.
  • Trump's lawyer also argued that a subpoena for information to Trump's accountants — including a demand for his personal and corporate tax returns — is "an inappropriate fishing expedition."
  • Manhattan DA Cyrus Vance Jr. is investigating how the Trump Organization accounted for hush money payments made to porn star Stormy Daniels and Playboy model Karen McDougal.
President Donald Trump looks on during a bilateral meeting with India's Prime Minister Narendra Modi on the sidelines of the annual United Nations General Assembly in New York City, New York, U.S., September 24, 2019.
Jonathan Ernst | Reuters

A lawyer for President Donald Trump argued Wednesday in court that Trump could shoot another person on Fifth Avenue in New York City and not be subject to arrest and prosecution until after he left office.

That claim by William Consovoy, Trump's attorney, came as he urged the U.S. Second Circuit Court of Appeals in Manhattan to reverse a lower-court decision, which had allowed a subpoena for Trump's personal and corporate income tax returns that was issued by state grand jury at the behest of the Manhattan District Attorney's office.

Consovoy argued that the subpoena is invalid because a president, while in office, is immune not only from federal prosecution, as the Justice Department has said, but also cannot be legally prosecuted or even criminally investigated by any law enforcement agency, be it federal or state.

Carey Dunne, general counsel for the DA's office, told the panel of three appellate judges that state prosecutors should be allowed to investigate potential crimes by a sitting president.

Dunne cited the hypothetical example of Trump "if he did pull out a handgun and shoot someone on Fifth Avenue." Shootings are normally prosecuted in New York by state prosecutors.

When he was asked if Trump could be prosecuted for such a blatant crime, Consovoy said, "This is not a permanent immunity."

The lawyer said a president could be charged for a shooting after he left or was removed from office.

But Judge Denny Chin pressed Consovoy: "I'm talking about while in office."

"Nothing could be done? That's your position?" Chin asked.

Consovoy replied: "That is correct."

Trump himself during the 2016 presidential campaign had said his supporters were "so smart" and so "loyal" that "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters, OK? It's like incredible."

Also Wednesday, Consovoy said the state grand jury subpoena to Trump's accountants demanding his personal and corporate tax returns is "an inappropriate fishing expedition."

Consovoy said, "We are objecting to the entire subpoena."

Some information sought by the subpoena to Mazars USA had been previously turned over by the accounting firm.

But eight years of tax returns that Manhattan DA Cyrus Vance Jr. wants have not.

Vance is known to be investigating how the Trump Organization accounted for hush money payments made by Trump's former personal lawyer Michael Cohen and the publisher of The National Enquirer to two women who claim they had sexual trysts with Trump.

Trump denies having sex with either woman, porn star Stormy Daniels and former Playboy model Karen McDougal.

A federal judge in U.S. District Court in Manhattan previously denied Trump's effort to toss out the subpoena.

Trump now is appealing that decision.

Protestors outside the U.S. District Courthouse in Manhattan, where President Trump's lawyer was arguing that a subpoena for his tax returns is not legal on Oct. 23, 2019.
Kevin Breuninger | CNBC

Consovoy argued during 50-minute hearing that Trump cannot be criminally investigated by any law enforcement organization while he's in the White House, which is a much broader claim than previous statements in internal Justice Department memos that a sitting president cannot be criminally charged by a federal prosecutor while still in office.

"The district attorney ... has declined to say the president is not a target," Consovoy said.

Consovoy also said "there is evidence" that the subpoena is designed to embarrass Trump.

Dunne, the DA's general counsel, said, "We would dispute there is an absolute blanket immunity" for the president when it comes to criminal investigations.

Dunne also dismissed the idea that the president's tax returns are barred from being released to a law enforcement agency conducting a criminal investigation.

"They're making this up, your honor," Dunne said. "We should get these materials."

It is not clear when the Second Circuit appellate panel will rule on Trump's bid to quash the subpoena.

But when the panel does rule, the losing side is certain to ask the U.S. Supreme Court to overturn the decision.

Chief Judge Robert Katzmann said, "This case seems bound for the Supreme Court."

Dunne replied, "I think both sides see this as an inevitability, your honor."

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