Last week, a federal judge in New York ruled that the Manhattan district attorney may subpoena Donald Trump’s tax records as part of a criminal investigation, making it clear that the president can be subpoenaed, investigated and maybe even prosecuted while in office.
Unable to rely on judicial authority, Trump’s lawyers cited the Department of Justice memos to claim that a sitting president cannot be investigated.
But the judge left no doubt that he considered the memos’ conclusions ‘not warranted’ — and that in his view, a president can be criminally investigated and perhaps even prosecuted while in office.”
As Harvard Law professor and Bloomberg columnist Noah Feldman points out, “the decision emphasized the principle that the president is not above the law.”
In a sense, Feldman notes in an Op-Ed for Bloomberg, “Trump’s lawyers opened the door for the judge to make his attack on the DOJ memos, and his ruling has opened the possibility of a potential indictment of President Trump.”
“Apart from the obvious political implications, there’s something constitutionally significant about the decision by Judge Victor Marrero,” Feldman writes. “The judge took the opportunity to attack two memos written by the Department of Justice, both of which maintain that a sitting president cannot be criminally prosecuted. These memos form the basis for the department’s current policy of not indicting a sitting president in federal court.”
“Marrero’s first salvo was to point out that these memos aren’t law — even though we sometimes imagine they are. The memos’ theory “has gained a certain degree of axiomatic acceptance,” he wrote, as though “their conclusion were inscribed on constitutional tablets etched by the Supreme Court.” But an opinion by the Department of Justice is just that — an opinion, not a statement of law by a court. The memos “do not constitute authoritative judicial interpretation of the Constitution,” the judge wrote.
The judge also went on to note that the memos are ambiguous about the difference between criminal investigation and criminal prosecution.
Marrero then turned to his most powerful — and intriguing — argument: that courts can and must engage in careful, case-specific balancing of the public interest in criminal prosecution against a president’s assertion that he must be able to do his job effectively. According to the judge, some forms of investigation — like demanding Trump’s tax returns — don’t actually take up so much of the president’s time that he can’t do his job. Indeed, he suggested, even a criminal indictment of a sitting president might not distract him too much, provided the actual prosecution waited until he left office.”
You can read Feldman’s column here.