WASHINGTON — President Donald Trump on Thursday lost again in his attempt to stop New York prosecutors from getting his tax returns, with a federal judge rejecting the president's latest round of arguments challenging a grand jury subpoena.
The latest order dismissing Trump's lawsuit against New York district attorney Cy Vance's office came just over a month after the US Supreme Court ruled in a 7–2 decision that Trump, as a sitting president, was not entitled to absolute immunity against a grand jury subpoena.
The court had left open the possibility that Trump could raise other challenges to the lawfulness of the subpoena, but US District Judge Victor Marrero rejected those in a 103-page opinion on Thursday. The judge found that Trump had largely rehashed the same allegations and arguments that he did during the first round of the case, and was trying to shoehorn the immunity argument that the Supreme Court rejected "through a back door."
"As this Court suggested in its earlier ruling in this litigation, that notion, applied as so robustly proclaimed by the President’s advocates, is as unprecedented and far-reaching as it is perilous to the rule of law and other bedrock constitutional principles on which this country was founded and by which it continues to be governed," the judge wrote.
Trump's lawyers immediately appealed Marrero's order to the US Court of Appeals for the 2nd Circuit, which ruled against Trump during the first round of the litigation that ended up before the Supreme Court. Speaking with reporters on Thursday, Trump said the case will "probably end up back in the Supreme Court."
"Well, the Supreme Court said if it's a fishing expedition, you don't have to do it, and this is a fishing expedition. But more importantly, this is a continuation of the witch hunt, the greatest witch hunt in history. There's never been anything like it," Trump said, according to a pool report.
The New York district attorney's office is seeking eight years of Trump's tax returns as part of an investigation that covered hush-money payments that Trump's former lawyer Michael Cohen orchestrated to two women, Stormy Daniels and Karen McDougal, who claimed to have had affairs with the president.
After the case was sent back by the Supreme Court in July, Trump's lawyers filed a new version of the lawsuit that claimed the subpoena was unlawfully overbroad and that prosecutors in New York acted in bad faith in issuing it to his accountant. Trump's lawyers argued the subpoena wasn't tailored to the New York investigation — they noted that it mirrored language from congressional subpoenas for Trump's financial records — and was part of a politically motivated and retaliatory fishing expedition.
Although the president's absolute immunity argument was no longer on the table, Marrero wrote that Trump's latest arguments had the "tenor and practical effect" of presidential immunity, since he was seeking "special treatment" because of his position. The judge used strong language to once again rebuff what he saw as Trump's overarching contention that a president cannot face criminal investigation while in office.
Marrero acknowledged that the Supreme Court had held that courts should give "high respect" to the office of the president in these types of legal fights, but he said that didn't mean state prosecutors had to meet a special, higher standard of need in order to subpoena a sitting president's records. The president's position meant the court "must take particular care to correctly apply" the legal standards for a grand jury subpoena, but it didn't change the substance of those standards, the judge wrote.
"High respect for the President does not imply diminished respect for the ancient functions of the grand jury or the long-established standards governing challenges to its subpoenas," Marrero wrote.
Marrero wrote that Trump's efforts to block the subpoena for as long as he's in office could have the effect of undermining the investigation as it related not only to Trump, but to other potential targets. If Trump won reelection in November, for instance, Marrero noted that the statute of limitations for bringing certain criminal charges could run out by the time Trump left the White House.
On Trump's bad faith argument, Marrero found that the president failed to present concrete, "non-speculative" facts to show that New York prosecutors were trying to get his tax returns for illegitimate reasons.
The fact that Democrats in Congress and the president's other foes were frustrated by their inability to get his tax returns — Trump broke with historic practice in refusing to release his returns as a candidate and as president — didn't meant that prosecutors lacked a valid reason to subpoena the documents as part of a criminal investigation, the judge wrote.
Even if the district attorney's office got his tax returns, the judge noted that grand jury secrecy rules meant that Democrats in Congress and the public wouldn't see them unless they became part of some later, formal criminal prosecution filed in court.
Trump argued that because the district attorney's investigation was limited to the 2016 hush-money payments, any subpoena would have to be tailored to records that related to those payments. But Marrero found that Trump failed to show that the investigation was exclusively limited to the 2016 payments. The judge also wrote a grand jury's "broad investigatory powers" meant it could seek documents beyond the time frame of whatever criminal conduct it was investigating.
Marrero granted a request by Vance's office to dismiss Trump's lawsuit "with prejudice," which means Trump couldn't file another version of his complaint to try to press his claims again. Vance's office argued that Trump's legal team was actively trying to create delays in the case to avoid turning over the president's tax returns. Marrero said he wouldn't rule on whether that was true but that allowing Trump to try again would cause "undue prejudice" to the investigation.
"Justice does not require granting leave to re-plead under these circumstances. Justice requires an end to this controversy," the judge wrote.
Jay Sekulow, Trump's lawyer, did not immediately respond to a request for comment. Vance's office declined to comment.
Correction: The Supreme Court ruled against President Trump in a 7–2 decision. A previous version of this article incorrectly stated the vote.