In a complaint filed today (hat tip: Courthouse News), President Trump sued to enjoin the Manhattan District Attorney from enforcing a grand jury subpoena issued to his accountants seeking (among other things) various of President Trump’s tax returns. President Trump also simultaneously sought a temporary restraining order, and the application will be heard by Judge Marrero next Wednesday.
The complaint alleges that President Trump is immune from all criminal process while in office, including a grand jury subpoena to a third party:
Though no court has had to squarely consider the question, the U.S. Department of Justice and “[a]lmost all legal commenters agree” that the President cannot be “subject to the criminal process” while in office. This principle stems from Article II, the Supremacy Clause, and the overall structure of the Constitution.
. . .
State and local prosecutors have massive incentives to criminally investigate the President to advance their careers or to damage a political opponent. And given the heavy burdens associated with criminal process, “all you need is one prosecutor, one trial judge, the barest amount of probable cause, and a supportive local constituency, and you can shut down a presidency.”
The prohibition on criminally prosecuting a sitting President cannot be circumvented by limiting the investigation to a grand-jury subpoena, or by not subpoenaing the President directly. Any state criminal process that seeks “a finding that it is probable that the President has committed a crime” — even if “obliquely” — would “vitiate the sound judgment of the Framers that a President must possess the continuous and undiminished capacity to fulfill his constitutional obligations.”