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Judge expresses amazement at the scope of immunity sought by Trump in 75-page order

[Judge Victor Marrero]

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

Okay, so the opinion on appeal before the Second Circuit concerning Trump’s tax returns is a doozy. U.S. Senior District Judge Victor Marrero expresses amazement at the scope of presidential immunity sought by Trump, which he characterizes as “unqualified and boundless” and “repugnant to the nation’s governmental structure and constitutional values.”

The abstention issue turns on the dry legal question of whether a state-issued investigatory subpoena is a criminal prosecution and whether it implicates an important state interest, thus triggering the Younger abstention doctrine. I nearly fell asleep writing that sentence, but the gist is that you can’t go to federal court to get out of your state court case if that state court case is legit.

Trump raises the argument that because he’s the President of the United States, a federal issue is implicated to the degree that Younger isn’t applicable. Basically, if the President does it, it’s not only legal, it’s federal. Trump’s lawyers point to the DOJ’s filing a “statement of interest” in support of the President’s argument. This is too cute by half, though, because this reading would mean that any United States interest in a case would trigger that cases’s removal to federal court even if state court is perfectly adequate.

The court also rejected Trump’s argument that the subpoenas are nothing more than New York’s bad faith attempt to harass him, thus requiring federal court intervention. Trump points to the fact that the subpoenas to his accountants closely match the subpoenas sent by Congress (also attempting to get tax returns). The court notes the high bar in demonstrating bad faith and concludes that Trump hasn’t shown it. Attempts to impute statements of members of Congress to the NY Attorney General fall far short.


The Younger abstention doctrine also contains a catch-all exception for “extraordinary circumstances” but the court makes short work of this argument as well. This exception is triggered where there is no adequate state remedy and where the litigant seeking removal to federal court would otherwise suffer “great and immediate harm” if he were subject to the wanton savagery of state court.

But the court does acknowledge that this particular situation doesn’t fit squarely into any of the Younger abstention jurisprudence. But then, what about anything having to do with Trump fits into existing jurisprudence?

The court didn’t have to also rule on Trump’s claims of presidential immunity but it went ahead and analyzed that too, in case the Second Circuit disagreed with the abstention analysis. I’ll get to this FAR more interesting section tomorrow, though, where the court takes square aim at the presumption, which the court mocks has taken on “axiomatic acceptance,” that a president can’t be subject to criminal process.

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