On Monday, the US Supreme Court finally answered the question of whether Donald Trump must hand over his tax documents. The case concerns the state investigation that is underway in Manhattan under the leadership of Cyrus R. Vance jr. (by the way, the son of Cyrus R. Vance, who was Secretary of State under Jimmy Carter). The investigation relates to “hush money” that Trump is said to have paid to two women’s acquaintances. But it has now been given a broader scope, where Trump’s business operations in New York are being scrutinized, including issues of tax evasion and banking and insurance fraud, with potentially serious criminal and civil consequences.
Cyrus R. Vance jr. has wanted access to Trump’s tax and accounting documentation from ten years back in time. This documentation is with Trump’s accounting firm Mazars USA. After the lower courts ordered Trump to give the prosecution access to the evidence, Trump’s lawyers went to the Supreme Court to stop the execution. But the Supreme Court said no to that on Monday, with one simple sentence, without justification.
The justification came as early as this summer, while Trump was still in the presidency. Then, for the first time, the case was before the Supreme Court – with the question of principle – whether the president is above the law – in focus. All nine judges agreed that no one, not even the president, is above the universal duty of every citizen to hand over evidence required by the prosecution in a criminal investigation.
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The reason for the new round in the judiciary was that the Supreme Court gave Donald Trump the opportunity to challenge the presentation of evidence in other ways under New York state law, regardless of whether he lost the question of the principle of presidential immunity. The final line was thus set on Monday, but the rest of the case may take its time. At present, the investigation is under so-called grand jury proceedings, and the tax and accounting documents will for the time being be subject to confidentiality with the prosecuting authority and the grand jury. But much of the material is already known through a series of articles The New York Times has published about Trump’s tax returns – yes, this publication was actually part of the argument that access to the tax and accounting documentation in Mazar’s USA does not represent a disproportionate burden on Trump.
The President of the United States is thus not immune from criminal investigation, and after his resignation, Trump is in the further criminal process to be regarded as an ordinary citizen. What would have happened if the investigation had led to indictment while Trump is still sitting in the White House, is another matter. Had the Manhattan case been investigated at the federal level, the Department of Justice’s guidelines would have put an effective stop to indicting the incumbent president.
Should these guidelines be changed, it remains an open question whether a president can be prosecuted in federal cases. One view is that a sitting president can be prosecuted for serious offenses that are not related to the president’s official duties, precisely below the maximum that no one is above the law. Trump, for his part, has consistently claimed that the president after the constitution has unconditional authority and right of instruction over the entire executive branch, including the prosecuting authority (the so-called “unitary executive theory”, popularized in the film Vice, about Vice President Dick Cheney). In that case, the problem would only be of theoretical interest, since the president could in any case have the last word on prosecution issues.
The issue is still highly topical. Joe Biden has made it clear that he wants to make the prosecution independent again, and it all quickly came up in Monday’s Senate hearing of Merrick Garland, who has been nominated for the Attorney General. One of the first questions he was asked was how he would respond to an investigation into President Biden’s son, Hunter Biden. Garland replied that Joe Biden had not only publicly – but also privately to him – insisted that the Attorney General under Biden’s presidency should have full independence in prosecution cases, and that this was a prerequisite for Garland to take the job.
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What would happen to Cyrus R. Vance Jr. had managed to prosecute Trump for the state courts in New York before Trump stepped down, we never know. Yes, whether Vance will have the opportunity to complete the investigation at all is an open question. As “Manhattan District Attorney”, he is soon up for election, and reportedly has not organized any election campaign yet. Maybe the latest Supreme Court decision will speed things up?(Terms)Copyright Dagens Næringsliv AS and / or our suppliers. We would like you to share our cases using a link, which leads directly to our pages. Copying or other form of use of all or part of the content, can only take place with written permission or as permitted by law. For additional terms look here.