WEBVTT - Trump Loses Document Standoff at Appellate Court

0:00:03.520 --> 0:00:07.040
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.120 --> 0:00:09.680
<v Speaker 1>day we bring you insight and analysis into the most

0:00:09.720 --> 0:00:12.200
<v Speaker 1>important legal news of the day. You can find more

0:00:12.240 --> 0:00:16.120
<v Speaker 1>episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

0:00:16.280 --> 0:00:20.239
<v Speaker 1>and on Bloomberg dot com slash podcasts. Will President Trump

0:00:20.320 --> 0:00:23.800
<v Speaker 1>lose control of his long secret financial records held by

0:00:23.840 --> 0:00:27.760
<v Speaker 1>his accountants Mazars? The d C Federal Court of Appeals

0:00:27.880 --> 0:00:31.720
<v Speaker 1>ruled against Trump in one of several cases testing Congress's

0:00:31.720 --> 0:00:35.080
<v Speaker 1>power to obtain a sitting president's financial records in the

0:00:35.159 --> 0:00:38.239
<v Speaker 1>name of oversight. Joining me is Neil Kincoff, a professor

0:00:38.280 --> 0:00:42.560
<v Speaker 1>of constitutional law at Georgia State University College of Law. Neil,

0:00:42.600 --> 0:00:45.960
<v Speaker 1>there are several subpoena disputes before the courts, So how

0:00:46.040 --> 0:00:49.159
<v Speaker 1>significant is this one ruling by a d C Federal

0:00:49.159 --> 0:00:53.360
<v Speaker 1>appeals court. It's tremendously significant. First of all, it's significant

0:00:53.360 --> 0:00:56.720
<v Speaker 1>because it orders the president's accountant to turn over tax returns,

0:00:56.920 --> 0:00:59.520
<v Speaker 1>and I think those will be a significant trove of

0:00:59.560 --> 0:01:03.320
<v Speaker 1>evidence for the houses it works through its various inquiries.

0:01:03.720 --> 0:01:07.560
<v Speaker 1>But also the law it lays down is well clearly

0:01:07.600 --> 0:01:11.960
<v Speaker 1>affirms the various precedents that applied to assertions of privilege

0:01:12.000 --> 0:01:15.959
<v Speaker 1>by the President and assertions for information by Congress, and

0:01:16.000 --> 0:01:19.520
<v Speaker 1>it comes down very strongly on the side of Congress.

0:01:19.560 --> 0:01:22.840
<v Speaker 1>So this will be an important precedent moving forward. So

0:01:23.000 --> 0:01:27.840
<v Speaker 1>Neil explain what the court decided. Briefly, The court decided

0:01:27.880 --> 0:01:31.640
<v Speaker 1>that Congress had a legitimate interest in seeing the president's

0:01:31.680 --> 0:01:35.760
<v Speaker 1>tax returns, and that if Congress has a legitimate interest,

0:01:35.959 --> 0:01:39.280
<v Speaker 1>it doesn't in any way matter that Congress may also

0:01:39.360 --> 0:01:44.000
<v Speaker 1>have political motives. So the president's objection and his accountants

0:01:44.000 --> 0:01:47.720
<v Speaker 1>objection to turning over the tax returns was that the

0:01:47.920 --> 0:01:52.320
<v Speaker 1>real reason was politics, and the court's response to that

0:01:52.520 --> 0:01:56.160
<v Speaker 1>was that Congress can have political motives as long as

0:01:56.200 --> 0:02:01.240
<v Speaker 1>it also has a legitimate legislative motive for seeking the information,

0:02:01.480 --> 0:02:03.800
<v Speaker 1>and it did in this case, and I think that

0:02:03.840 --> 0:02:07.280
<v Speaker 1>pretty clearly demonstrates that it will in all of its inquiries.

0:02:07.800 --> 0:02:12.640
<v Speaker 1>Might courts see a difference between President Trump's records as

0:02:12.760 --> 0:02:17.680
<v Speaker 1>president and personal records before his presidency. I don't think so,

0:02:17.760 --> 0:02:21.080
<v Speaker 1>not after this case, because this case involved tax returns

0:02:21.120 --> 0:02:24.880
<v Speaker 1>before Donald Trump was president and tax returns after Donald

0:02:24.880 --> 0:02:28.079
<v Speaker 1>Trump was president, and the d C. Circuit said they

0:02:28.080 --> 0:02:32.160
<v Speaker 1>are all within Congress's legitimate interests to see. It was

0:02:32.200 --> 0:02:34.680
<v Speaker 1>a two to one decision, and the judge and dissent

0:02:34.919 --> 0:02:38.960
<v Speaker 1>was Naomi Rao, a recent appointee of President Trump's. What

0:02:39.080 --> 0:02:43.440
<v Speaker 1>were her reasons for dissenting? Her dissent sure looked an

0:02:43.440 --> 0:02:46.119
<v Speaker 1>awful lot like the various press releases that have come

0:02:46.160 --> 0:02:48.280
<v Speaker 1>from the White House, And there's very little in the

0:02:48.280 --> 0:02:52.200
<v Speaker 1>way of legal precedent for her position. She simply says

0:02:52.440 --> 0:02:57.320
<v Speaker 1>Congress is motivated by attacking the president and that's not

0:02:57.400 --> 0:03:01.160
<v Speaker 1>a legitimate legislative function. And you know, she's wrong in

0:03:01.280 --> 0:03:04.440
<v Speaker 1>terms of where the cases have ever been before. I

0:03:04.480 --> 0:03:07.240
<v Speaker 1>think her opinion really is just an application to be

0:03:07.320 --> 0:03:09.960
<v Speaker 1>considered for the next opening on the Supreme Court if

0:03:10.000 --> 0:03:13.800
<v Speaker 1>Donald Trump gets to make another appointment. As a legal argument,

0:03:13.840 --> 0:03:17.440
<v Speaker 1>it's really not serious. It's interesting that even in her descent,

0:03:17.760 --> 0:03:20.760
<v Speaker 1>she said the House may not use the legislative power

0:03:20.800 --> 0:03:25.320
<v Speaker 1>to circumvent the protections and accountability that accompany the impeachment power.

0:03:25.760 --> 0:03:29.880
<v Speaker 1>So does that indicate that if this were an impeachment

0:03:29.960 --> 0:03:34.839
<v Speaker 1>inquiry she would have a different opinion. It indicates that,

0:03:34.920 --> 0:03:36.600
<v Speaker 1>I mean, the first problem with that is that, of

0:03:36.600 --> 0:03:40.320
<v Speaker 1>course Congress has many legitimate legislative interests in seeing the

0:03:40.360 --> 0:03:43.760
<v Speaker 1>president's tax returns. For one thing, they have a legitimate

0:03:43.800 --> 0:03:48.320
<v Speaker 1>interest in applying the Emoluments Clause right. The emoluments Clause

0:03:48.360 --> 0:03:54.119
<v Speaker 1>specifically authorizes Congress to allow for officials, including the president,

0:03:54.200 --> 0:03:58.960
<v Speaker 1>to receive emoluments in certain circumstances. Congress also has to

0:03:59.000 --> 0:04:01.880
<v Speaker 1>figure out whether or not the ethics laws that apply

0:04:02.120 --> 0:04:06.520
<v Speaker 1>to executive branch officials including the president, are being enforced

0:04:06.560 --> 0:04:10.360
<v Speaker 1>properly or whether those laws need to be updated, and

0:04:10.400 --> 0:04:14.440
<v Speaker 1>seeing the president's tax returns will give them vivid illustrations

0:04:14.520 --> 0:04:17.960
<v Speaker 1>of whether or not there are holes in the ethics laws.

0:04:18.000 --> 0:04:22.400
<v Speaker 1>All of those are legitimate legislative functions, So she's wrong

0:04:22.560 --> 0:04:26.960
<v Speaker 1>to say that Congress can't offer a legitimate legislative function

0:04:27.000 --> 0:04:29.880
<v Speaker 1>and has to rely on impeachment. But I think the

0:04:29.920 --> 0:04:33.640
<v Speaker 1>answer to your question is yes. If Congress says impeachment

0:04:33.839 --> 0:04:38.000
<v Speaker 1>and now they have that, Judge Row would be required

0:04:38.080 --> 0:04:40.640
<v Speaker 1>to say, well, as long as this is related to

0:04:40.720 --> 0:04:45.560
<v Speaker 1>an impeachment inquiry, Congress can get the information. So President

0:04:45.560 --> 0:04:48.880
<v Speaker 1>Trump's lawyers could ask the full DC Appeals Court to

0:04:48.920 --> 0:04:52.240
<v Speaker 1>reconsider the ruling, which might drag things out for them,

0:04:52.600 --> 0:04:55.799
<v Speaker 1>or go straight to the Supreme Court for an emergency review.

0:04:56.160 --> 0:05:00.360
<v Speaker 1>What's the better path for Trump? Strategically has better path

0:05:00.520 --> 0:05:03.480
<v Speaker 1>is to ask the full DC Circuit court because that

0:05:03.560 --> 0:05:06.840
<v Speaker 1>delays things. If the full DC Circuit were to hear it,

0:05:07.120 --> 0:05:09.240
<v Speaker 1>then you'd have to go through the whole process of

0:05:09.279 --> 0:05:13.360
<v Speaker 1>submitting briefs, having oral arguments, then the full DC Circuit

0:05:13.480 --> 0:05:16.360
<v Speaker 1>taking time to write its opinions, and so that would

0:05:16.440 --> 0:05:19.640
<v Speaker 1>delay the matter by months, and delay I think works

0:05:19.640 --> 0:05:22.880
<v Speaker 1>in the President's favor. So I imagine that's the path

0:05:22.960 --> 0:05:25.760
<v Speaker 1>he would pick. I don't imagine the d C Circuit

0:05:25.800 --> 0:05:29.480
<v Speaker 1>would grant full on bonk review. And would the Supreme

0:05:29.520 --> 0:05:32.800
<v Speaker 1>Court have to take the case? And if so, what

0:05:32.800 --> 0:05:35.719
<v Speaker 1>would the ruling be like there? So the Supreme Court

0:05:35.760 --> 0:05:38.640
<v Speaker 1>doesn't have to take the case, it could simply leave

0:05:39.160 --> 0:05:42.240
<v Speaker 1>the d C Circuit's ruling in place. And you know,

0:05:42.600 --> 0:05:45.240
<v Speaker 1>perhaps the Supreme Court would do that. And this is

0:05:45.279 --> 0:05:49.040
<v Speaker 1>certainly an interesting case. It presents issues that the Supreme

0:05:49.080 --> 0:05:51.920
<v Speaker 1>Court doesn't very often get to speak about, and there

0:05:51.920 --> 0:05:54.760
<v Speaker 1>may be some things it wants to say as a

0:05:54.839 --> 0:05:58.039
<v Speaker 1>way of putting down a marker for the rest of

0:05:58.080 --> 0:06:01.159
<v Speaker 1>the impeachment inquiry. So it Mike Well, grant the case

0:06:01.279 --> 0:06:04.240
<v Speaker 1>in order to do that. If it does, then you

0:06:04.240 --> 0:06:07.400
<v Speaker 1>know the Court can act quite expeditiously. I was just

0:06:07.480 --> 0:06:11.120
<v Speaker 1>looking back at the Watergate tapes case, and the subpoena

0:06:11.360 --> 0:06:15.000
<v Speaker 1>for the Watergate tapes was issued in April. The case

0:06:15.080 --> 0:06:18.120
<v Speaker 1>got all the way to the Supreme Court and received

0:06:18.160 --> 0:06:20.840
<v Speaker 1>an opinion from the Supreme Court in July of that

0:06:20.920 --> 0:06:23.480
<v Speaker 1>same year. So just a matter of a little under

0:06:23.560 --> 0:06:27.760
<v Speaker 1>three months the Supreme Court resolved that issue, so it

0:06:27.800 --> 0:06:30.360
<v Speaker 1>can act quickly. The subpoenas that we're talking about were

0:06:30.400 --> 0:06:35.240
<v Speaker 1>issued before the impeachment inquiry. Now Democrats have seemed reluctant

0:06:35.320 --> 0:06:40.279
<v Speaker 1>to issue subpoenas because of the problem of time. But

0:06:40.400 --> 0:06:43.080
<v Speaker 1>you think that the Supreme Court could rush them through,

0:06:43.120 --> 0:06:45.839
<v Speaker 1>then the Supreme Court can rush them through. And we

0:06:45.920 --> 0:06:50.719
<v Speaker 1>also see the House issuing subpoenas where where witnesses want them. Right,

0:06:50.800 --> 0:06:55.479
<v Speaker 1>So Ambassador Ivanovitch was told not to appear at the

0:06:55.560 --> 0:07:00.120
<v Speaker 1>house I'm hearing, and so she told the House that

0:07:00.279 --> 0:07:03.600
<v Speaker 1>she wouldn't appear unless she was subpoena and the House

0:07:03.720 --> 0:07:06.240
<v Speaker 1>very quickly issued the subpoena and it was complied with.

0:07:06.680 --> 0:07:08.600
<v Speaker 1>I think the context where the House may be a

0:07:08.640 --> 0:07:11.000
<v Speaker 1>little more reluctant is where the subpoena is going to

0:07:11.040 --> 0:07:15.040
<v Speaker 1>be challenged. Last week in New York, a federal court

0:07:15.200 --> 0:07:19.280
<v Speaker 1>judge Victor Murrero tossed Trump's lawsuit to block a subpoena

0:07:19.320 --> 0:07:22.760
<v Speaker 1>for his personal and corporate tax returns by the Manhattan

0:07:22.840 --> 0:07:26.400
<v Speaker 1>d A. It was a skating opinion. Was the reasoning

0:07:26.480 --> 0:07:28.520
<v Speaker 1>similar to what we saw from the d C Circuit

0:07:28.640 --> 0:07:31.600
<v Speaker 1>or different? Well, it was different in that the d

0:07:31.720 --> 0:07:35.840
<v Speaker 1>C circuits reasoning was far more measured, right because the

0:07:35.920 --> 0:07:39.920
<v Speaker 1>lawyers firm Mazars, President Trump's accounting firm didn't make the

0:07:40.000 --> 0:07:43.960
<v Speaker 1>kind of outlandish arguments that Trump's own lawyers made for

0:07:44.080 --> 0:07:47.040
<v Speaker 1>him in that New York case. They made them in

0:07:47.080 --> 0:07:49.120
<v Speaker 1>the d C Circuit, but the d C Circuit could

0:07:49.120 --> 0:07:52.720
<v Speaker 1>ignore them because Trump wasn't a party, right, So those

0:07:52.760 --> 0:07:57.320
<v Speaker 1>outlandish arguments are that the president is absolutely immune from

0:07:57.440 --> 0:08:01.920
<v Speaker 1>all process in court or Congress. And the judge was,

0:08:02.000 --> 0:08:05.360
<v Speaker 1>I think quite rightly dismissive of those and in fact

0:08:05.600 --> 0:08:09.680
<v Speaker 1>repudiated them so sharply, I think is a way of

0:08:09.720 --> 0:08:12.440
<v Speaker 1>signaling to the president's lawyers that they need to temper

0:08:12.520 --> 0:08:15.280
<v Speaker 1>the kinds of arguments they're making when they go before

0:08:15.320 --> 0:08:18.560
<v Speaker 1>the second circuit to argue the case. Do you think

0:08:18.560 --> 0:08:21.760
<v Speaker 1>that you'll see a more tempered argument from the president's lawyers.

0:08:22.360 --> 0:08:24.480
<v Speaker 1>It's a little hard to imagine. They seem to be

0:08:24.520 --> 0:08:27.720
<v Speaker 1>really committed to those arguments, and you know, I think

0:08:27.720 --> 0:08:32.080
<v Speaker 1>their client appreciates their over the top representation and advocacy,

0:08:32.559 --> 0:08:35.840
<v Speaker 1>and so given that dynamic, they may stick to their guns,

0:08:35.960 --> 0:08:39.280
<v Speaker 1>even though the position, as a matter of law is

0:08:39.360 --> 0:08:43.000
<v Speaker 1>completely indefensible. Thanks for being on Bloomberg Law. Neil. That's

0:08:43.040 --> 0:08:46.280
<v Speaker 1>Neil Kinkoff, a professor at the Georgia State University College

0:08:46.280 --> 0:08:50.239
<v Speaker 1>of Law. Thanks for listening to the Bloomberg Law podcast.

0:08:50.600 --> 0:08:54.640
<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

0:08:54.720 --> 0:08:58.640
<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

0:08:59.120 --> 0:09:03.040
<v Speaker 1>This is Bird