Second Circuit Says Mazars USA Must Hand Over Donald Trump's Tax Returns

By Joseph Fawbush, Esq. | Last updated on November 05, 2019

The U.S. Second Circuit Court of Appeals has held that a grand jury's subpoena to Mazars USA to produce President Trump's tax returns for the last eight years is enforceable.

The panel, which included Chief Judge Katzmann, issued a narrow ruling that “presidential immunity does not bar a state grand jury from issuing a subpoena in aid of its investigation of potential crimes committed by persons within its jurisdiction, even if that investigation may in some way implicate the President."

The panel was unconvinced by President Trump's argument that, as the target of an investigation, the subpoena raised significant constitutional issues, writing that even if an actual criminal charge is forthcoming (President Trump has not been charged with a crime) a “mere investigation" is not the same.

The Justice Department, arguing for President Trump, claims that a subpoena involving the president must show a heightened need. Because nothing in the subpoena involves executive privilege, however, the panel did not find any justification for that position in a line of Supreme Court cases dating back 200 years.

What the Second Circuit Didn't Do

Perhaps anticipating an appeal, the Second Circuit specifically noted what this opinion does not do. The panel assumed, without deciding, that the president cannot be prosecuted while in office. It also did not rule whether a state grand jury can compel action specifically against the president. Here, the president does not have to do anything. The subpoena is to a third party, Mazars USA, which has copies of President Trump's returns.

Will the Supreme Court Become Involved?

President Trump's legal team has already indicated it plans to appeal to the Supreme Court. The Second Circuit decision comes on the heels of a D.C. Circuit opinion that similarly held that the House Committee on Oversight and Reform can seek the last 8 years of tax information for the Trump Organization and the Trump Corporation.

With the President's personal and business tax information now subject to subpoenas, the pressure for the Supreme Court to weigh in will mount. For now, it is unclear whether the nation's highest court will take the case, however. That the Second Circuit issued such a narrow ruling means the Supreme Court could potentially pass on taking it up.

The Manhattan District Attorney and President Trump have reached an agreement whereby the DA will withhold enforcing the subpoena while an appeal is pending - provided the Supreme Court takes the case this term.

While the DA would have access to President Trump's tax records, they would not be made public, at least while no criminal charges have been filed. For now, neither President Trump's personal or business tax returns are likely to be made public.

Donald Trump's Tax Returns and the Second Circuit (FindLaw's U.S. Second Circuit)

California Trying to Force Trump to Release His Tax Returns (FindLaw's Law and Daily Life)

Treasury Dept. Refuses to Hand Over Trump's Tax Returns (FindLaw's Courtside)

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