It was one of the more memorable lines of the 2016 presidential campaign. In January 2016, Donald Trump, marveling at the loyalty of his followers, boasted, “I could stand in the middle of Fifth Avenue and shoot somebody, okay, and I wouldn’t lose any voters, okay? It’s, like, incredible.”
Nearly four years later, the Republican’s lawyers have suggested a similar tack while fighting to keep Trump’s tax returns hidden. The president’s legal team, hired specifically to shield his secret financial documents, have effectively argued that Trump could stand in the middle of Fifth Avenue and shoot somebody, there would be no way to hold him accountable so long as the president is in office.
This morning, Team Trump didn’t just hint at this argument; as NBC News’ Pete Williams reported, the president’s lawyers were quite explicit on this point during court proceedings.
A panel of three federal appeals court judges appeared to be unreceptive Wednesday to President Donald Trump’s claim that local prosecutors cannot get his financial records as long as he’s in office — and heard an extreme hypothetical from the president’s lawyers making the case.
The long-standing view of the Justice Department is that a president cannot be indicted while in office. William Consovoy, Trump’s lawyer, told the Second Circuit Court of Appeals that the immunity extends to the entire criminal justice process, including grand jury subpoenas for documents.
Judge Denny Chin on the 2nd Circuit Court of Appeals specifically asked William Consovoy, Trump’s lawyer about the “Fifth Avenue” argument.
“I’m talking about while in office. Nothing could be done? That’s your position?” Chin asked. Consovoy replied, “That is correct.”
Just so we’re all clear, this is an argument rooted in the idea that the sitting president isn’t just immune from prosecution; he’s also immune from scrutiny. As Rachel noted on Twitter, as far as Team Trump is concerned, the president can’t even be investigated while in office.
Because there are multiple ongoing lawsuits surrounding the president’s hidden tax returns, it’s easy to get confused about the various cases. This morning’s appellate court argument stems from an investigation launched by a New York district attorney’s office, which is investigating Trump’s hush-money scandal.
The DA’s office subpoenaed the president’s accounting firm, Mazars USA, for several years’ worth of personal and business tax returns.
At the lower court, Trump’s legal team argued in that case that a sitting American president cannot be investigated by anyone for any reason, no matter how serious the underlying accusation. The district court judge disagreed and ruled in prosecutors’ favor.
The matter is now before the 2nd Circuit, and the issue may very well end up before the U.S. Supreme Court.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."