Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. Will President Trump
Speaker 1: lose control of his long secret financial records held by
Speaker 1: his accountants Mazars? The d C Federal Court of Appeals
Speaker 1: ruled against Trump in one of several cases testing Congress's
Speaker 1: power to obtain a sitting president's financial records in the
Speaker 1: name of oversight. Joining me is Neil Kincoff, a professor
Speaker 1: of constitutional law at Georgia State University College of Law. Neil,
Speaker 1: there are several subpoena disputes before the courts, So how
Speaker 1: significant is this one ruling by a d C Federal
Speaker 1: appeals court. It's tremendously significant. First of all, it's significant
Speaker 1: because it orders the president's accountant to turn over tax returns,
Speaker 1: and I think those will be a significant trove of
Speaker 1: evidence for the houses it works through its various inquiries.
Speaker 1: But also the law it lays down is well clearly
Speaker 1: affirms the various precedents that applied to assertions of privilege
Speaker 1: by the President and assertions for information by Congress, and
Speaker 1: it comes down very strongly on the side of Congress.
Speaker 1: So this will be an important precedent moving forward. So
Speaker 1: Neil explain what the court decided. Briefly, The court decided
Speaker 1: that Congress had a legitimate interest in seeing the president's
Speaker 1: tax returns, and that if Congress has a legitimate interest,
Speaker 1: it doesn't in any way matter that Congress may also
Speaker 1: have political motives. So the president's objection and his accountants
Speaker 1: objection to turning over the tax returns was that the
Speaker 1: real reason was politics, and the court's response to that
Speaker 1: was that Congress can have political motives as long as
Speaker 1: it also has a legitimate legislative motive for seeking the information,
Speaker 1: and it did in this case, and I think that
Speaker 1: pretty clearly demonstrates that it will in all of its inquiries.
Speaker 1: Might courts see a difference between President Trump's records as
Speaker 1: president and personal records before his presidency. I don't think so,
Speaker 1: not after this case, because this case involved tax returns
Speaker 1: before Donald Trump was president and tax returns after Donald
Speaker 1: Trump was president, and the d C. Circuit said they
Speaker 1: are all within Congress's legitimate interests to see. It was
Speaker 1: a two to one decision, and the judge and dissent
Speaker 1: was Naomi Rao, a recent appointee of President Trump's. What
Speaker 1: were her reasons for dissenting? Her dissent sure looked an
Speaker 1: awful lot like the various press releases that have come
Speaker 1: from the White House, And there's very little in the
Speaker 1: way of legal precedent for her position. She simply says
Speaker 1: Congress is motivated by attacking the president and that's not
Speaker 1: a legitimate legislative function. And you know, she's wrong in
Speaker 1: terms of where the cases have ever been before. I
Speaker 1: think her opinion really is just an application to be
Speaker 1: considered for the next opening on the Supreme Court if
Speaker 1: Donald Trump gets to make another appointment. As a legal argument,
Speaker 1: it's really not serious. It's interesting that even in her descent,
Speaker 1: she said the House may not use the legislative power
Speaker 1: to circumvent the protections and accountability that accompany the impeachment power.
Speaker 1: So does that indicate that if this were an impeachment
Speaker 1: inquiry she would have a different opinion. It indicates that,
Speaker 1: I mean, the first problem with that is that, of
Speaker 1: course Congress has many legitimate legislative interests in seeing the
Speaker 1: president's tax returns. For one thing, they have a legitimate
Speaker 1: interest in applying the Emoluments Clause right. The emoluments Clause
Speaker 1: specifically authorizes Congress to allow for officials, including the president,
Speaker 1: to receive emoluments in certain circumstances. Congress also has to
Speaker 1: figure out whether or not the ethics laws that apply
Speaker 1: to executive branch officials including the president, are being enforced
Speaker 1: properly or whether those laws need to be updated, and
Speaker 1: seeing the president's tax returns will give them vivid illustrations
Speaker 1: of whether or not there are holes in the ethics laws.
Speaker 1: All of those are legitimate legislative functions, So she's wrong
Speaker 1: to say that Congress can't offer a legitimate legislative function
Speaker 1: and has to rely on impeachment. But I think the
Speaker 1: answer to your question is yes. If Congress says impeachment
Speaker 1: and now they have that, Judge Row would be required
Speaker 1: to say, well, as long as this is related to
Speaker 1: an impeachment inquiry, Congress can get the information. So President
Speaker 1: Trump's lawyers could ask the full DC Appeals Court to
Speaker 1: reconsider the ruling, which might drag things out for them,
Speaker 1: or go straight to the Supreme Court for an emergency review.
Speaker 1: What's the better path for Trump? Strategically has better path
Speaker 1: is to ask the full DC Circuit court because that
Speaker 1: delays things. If the full DC Circuit were to hear it,
Speaker 1: then you'd have to go through the whole process of
Speaker 1: submitting briefs, having oral arguments, then the full DC Circuit
Speaker 1: taking time to write its opinions, and so that would
Speaker 1: delay the matter by months, and delay I think works
Speaker 1: in the President's favor. So I imagine that's the path
Speaker 1: he would pick. I don't imagine the d C Circuit
Speaker 1: would grant full on bonk review. And would the Supreme
Speaker 1: Court have to take the case? And if so, what
Speaker 1: would the ruling be like there? So the Supreme Court
Speaker 1: doesn't have to take the case, it could simply leave
Speaker 1: the d C Circuit's ruling in place. And you know,
Speaker 1: perhaps the Supreme Court would do that. And this is
Speaker 1: certainly an interesting case. It presents issues that the Supreme
Speaker 1: Court doesn't very often get to speak about, and there
Speaker 1: may be some things it wants to say as a
Speaker 1: way of putting down a marker for the rest of
Speaker 1: the impeachment inquiry. So it Mike Well, grant the case
Speaker 1: in order to do that. If it does, then you
Speaker 1: know the Court can act quite expeditiously. I was just
Speaker 1: looking back at the Watergate tapes case, and the subpoena
Speaker 1: for the Watergate tapes was issued in April. The case
Speaker 1: got all the way to the Supreme Court and received
Speaker 1: an opinion from the Supreme Court in July of that
Speaker 1: same year. So just a matter of a little under
Speaker 1: three months the Supreme Court resolved that issue, so it
Speaker 1: can act quickly. The subpoenas that we're talking about were
Speaker 1: issued before the impeachment inquiry. Now Democrats have seemed reluctant
Speaker 1: to issue subpoenas because of the problem of time. But
Speaker 1: you think that the Supreme Court could rush them through,
Speaker 1: then the Supreme Court can rush them through. And we
Speaker 1: also see the House issuing subpoenas where where witnesses want them. Right,
Speaker 1: So Ambassador Ivanovitch was told not to appear at the
Speaker 1: house I'm hearing, and so she told the House that
Speaker 1: she wouldn't appear unless she was subpoena and the House
Speaker 1: very quickly issued the subpoena and it was complied with.
Speaker 1: I think the context where the House may be a
Speaker 1: little more reluctant is where the subpoena is going to
Speaker 1: be challenged. Last week in New York, a federal court
Speaker 1: judge Victor Murrero tossed Trump's lawsuit to block a subpoena
Speaker 1: for his personal and corporate tax returns by the Manhattan
Speaker 1: d A. It was a skating opinion. Was the reasoning
Speaker 1: similar to what we saw from the d C Circuit
Speaker 1: or different? Well, it was different in that the d
Speaker 1: C circuits reasoning was far more measured, right because the
Speaker 1: lawyers firm Mazars, President Trump's accounting firm didn't make the
Speaker 1: kind of outlandish arguments that Trump's own lawyers made for
Speaker 1: him in that New York case. They made them in
Speaker 1: the d C Circuit, but the d C Circuit could
Speaker 1: ignore them because Trump wasn't a party, right, So those
Speaker 1: outlandish arguments are that the president is absolutely immune from
Speaker 1: all process in court or Congress. And the judge was,
Speaker 1: I think quite rightly dismissive of those and in fact
Speaker 1: repudiated them so sharply, I think is a way of
Speaker 1: signaling to the president's lawyers that they need to temper
Speaker 1: the kinds of arguments they're making when they go before
Speaker 1: the second circuit to argue the case. Do you think
Speaker 1: that you'll see a more tempered argument from the president's lawyers.
Speaker 1: It's a little hard to imagine. They seem to be
Speaker 1: really committed to those arguments, and you know, I think
Speaker 1: their client appreciates their over the top representation and advocacy,
Speaker 1: and so given that dynamic, they may stick to their guns,
Speaker 1: even though the position, as a matter of law is
Speaker 1: completely indefensible. Thanks for being on Bloomberg Law. Neil. That's
Speaker 1: Neil Kinkoff, a professor at the Georgia State University College
Speaker 1: of Law. Thanks for listening to the Bloomberg Law podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bird