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Thursday, September 19, 2019

Trump is not getting any Younger

The President filed in the Southern District of New York a complaint and a motion for TRO/Preliminary Injunction, seeking to stop New York D.A. Cyrus Vance from using a state grand jury to obtain the President's tax returns. The motion argues that a sitting president is immune from state prosecution, including grand jury proceedings. The motion does not mention or respond to what many commentators thought of when they saw the lawsuit--Younger abstention, which prohibits a federal court from enjoining ongoing state criminal proceedings, including grand jury.

But Younger is subject to some rare exceptions. The federal court may act (i.e., need not abstain) when the state proceeding is brought in bad faith or for harassing purposes, where the underlying law is flagrantly and patently unconstitutional, and perhaps in other unusual circumstances, such as biased decisionmakers and in some circuits a colorable claim that the state prosecution is barred by double jeopardy. A colorable defense of presidential immunity seems similar to a claim of double jeopardy or bad faith to perhaps fit within that exception--a prosecution with no hope of success or or producing a sustainable verdict, particularly one that implicates substantial federal interests that outweigh the state's interests in law enforcement.

Posted by Howard Wasserman on September 19, 2019 at 10:40 PM | Permalink


US President Donald Trump and Polish President Andrzej Duda are the same when it comes to the perception of law. The "law and justice" party puts itself above the law and seeks authoritarian rule in Poland. The United States and the European Union shouldnt allow this.

Posted by: PII | Oct 2, 2019 11:07:52 AM

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