1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple Podcasts, SoundCloud,

5
00:00:16,280 --> 00:00:20,479
Speaker 1: and on Bloomberg dot com slash podcasts. After suffering another

6
00:00:20,560 --> 00:00:24,240
Speaker 1: legal defeat at a federal appellate court, President Donald Trump's

7
00:00:24,360 --> 00:00:27,000
Speaker 1: last legal hope in his years long fight to keep

8
00:00:27,000 --> 00:00:31,040
Speaker 1: his finances private is now the Supreme Court. The Second

9
00:00:31,040 --> 00:00:33,760
Speaker 1: Circuit Court of Appeals has ruled that Deutsche Bank and

10
00:00:33,920 --> 00:00:37,920
Speaker 1: Capital One must comply with subpoenas from House committees seeking

11
00:00:37,960 --> 00:00:41,919
Speaker 1: a wide range of Trump's financial records. During oral arguments

12
00:00:41,920 --> 00:00:44,560
Speaker 1: in the case, the attorney for the House, Douglas Letter,

13
00:00:44,720 --> 00:00:48,320
Speaker 1: explained that a broad subpoena was necessary in the investigation

14
00:00:48,479 --> 00:00:52,559
Speaker 1: into financial fraud and money laundering. We're talking about some

15
00:00:52,640 --> 00:00:55,760
Speaker 1: of the pression's reported, for instance, about twenty billion dollars

16
00:00:56,640 --> 00:01:00,200
Speaker 1: of Russian money that is being laundered, etcetera. Were talking

17
00:01:00,240 --> 00:01:04,880
Speaker 1: about two banks that have themselves paid very very large

18
00:01:05,280 --> 00:01:09,880
Speaker 1: fines because they have engaged in the past in um

19
00:01:09,920 --> 00:01:13,400
Speaker 1: what we think is illegal activity tied in with money laundering.

20
00:01:13,520 --> 00:01:18,839
Speaker 1: Hiding assets, etcetera. So we are doing an extremely broad investigation.

21
00:01:19,800 --> 00:01:22,319
Speaker 1: It's the third appellate court lass for Trump in his

22
00:01:22,400 --> 00:01:26,160
Speaker 1: high stakes court battles over his financial records. Joining me

23
00:01:26,200 --> 00:01:29,560
Speaker 1: is Neil Kinkoff, a professor at Georgia State University College

24
00:01:29,560 --> 00:01:32,240
Speaker 1: of Law and a former special assistant to the U. S.

25
00:01:32,280 --> 00:01:35,360
Speaker 1: Attorney General. So, Neil, what was the basis of the

26
00:01:35,400 --> 00:01:40,000
Speaker 1: Second Circuit's decision here? The basis was that Congress has

27
00:01:40,040 --> 00:01:45,880
Speaker 1: the authority to investigate and to compel people to participate

28
00:01:45,920 --> 00:01:50,040
Speaker 1: in their investigations. And so this is a long established power.

29
00:01:50,400 --> 00:01:54,000
Speaker 1: It's one that has largely gone on question throughout our

30
00:01:54,120 --> 00:01:59,280
Speaker 1: history until President Trump has decided to question whether or

31
00:01:59,280 --> 00:02:03,440
Speaker 1: not that power can extend to investigations of the president

32
00:02:03,520 --> 00:02:07,240
Speaker 1: in either his personal or official capacity. But the Second

33
00:02:07,240 --> 00:02:13,400
Speaker 1: Circuit resoundingly rejected that argument with respect to investigating the

34
00:02:13,440 --> 00:02:17,760
Speaker 1: president's personal finances. So the court said that Congress was

35
00:02:17,800 --> 00:02:22,040
Speaker 1: acting within its constitutional authority to investigate a series of

36
00:02:22,040 --> 00:02:28,280
Speaker 1: significant issues, including whether President Trump was vulnerable to foreign exploitation.

37
00:02:28,760 --> 00:02:31,840
Speaker 1: Is that a key factor of the ruling. The Court

38
00:02:31,919 --> 00:02:36,080
Speaker 1: recognized a wide range of legitimate interests that Congress was

39
00:02:36,160 --> 00:02:39,800
Speaker 1: pursuing in issuing these subpoenas. So the one that you

40
00:02:39,880 --> 00:02:44,480
Speaker 1: mentioned was the justification for the subpoena issued by the

41
00:02:44,680 --> 00:02:49,000
Speaker 1: Intelligence Committee. It also upheld the subpoena issued by the

42
00:02:49,040 --> 00:02:54,200
Speaker 1: Financial Services Committee, which is investigating money laundering, and the

43
00:02:54,240 --> 00:02:58,720
Speaker 1: banks that are under subpoena, Deutsche Bank and Capital One

44
00:02:59,080 --> 00:03:02,320
Speaker 1: both have been found to have engaged in money laundering,

45
00:03:02,760 --> 00:03:06,079
Speaker 1: and there is real reason to suspect that their dealings

46
00:03:06,120 --> 00:03:11,079
Speaker 1: with Donald Trump relate to those money laundering activities, and

47
00:03:11,160 --> 00:03:14,480
Speaker 1: so both of those are legitimate grounds for investigation, and

48
00:03:14,520 --> 00:03:18,040
Speaker 1: both of those provide legitimate grounds for Congress seeking the

49
00:03:18,040 --> 00:03:22,000
Speaker 1: president's financial records. The court didn't have to rule on it,

50
00:03:22,000 --> 00:03:24,880
Speaker 1: but it also noted the subpoena that had been issued

51
00:03:24,880 --> 00:03:29,200
Speaker 1: by the House Oversight Committee seeking financial records relating to

52
00:03:29,280 --> 00:03:32,840
Speaker 1: things like the emoluments clause, and agreed with the court

53
00:03:32,919 --> 00:03:37,560
Speaker 1: that upheld those subpoenas as within Congress's legitimate authority. So

54
00:03:37,600 --> 00:03:41,640
Speaker 1: in this case, the court really recognized very broad legitimate

55
00:03:41,640 --> 00:03:45,760
Speaker 1: congressional power to seek these records. Is the president losing

56
00:03:45,800 --> 00:03:51,160
Speaker 1: these cases because he's taking this broad absolute immunity position

57
00:03:51,840 --> 00:03:56,920
Speaker 1: in the courts, Yes, but his lawyers aren't limiting themselves

58
00:03:56,960 --> 00:04:01,880
Speaker 1: to that broad argument, they also make narrower arguments. I

59
00:04:01,920 --> 00:04:05,120
Speaker 1: don't think it helps their narrower arguments that they've made

60
00:04:05,120 --> 00:04:08,680
Speaker 1: these very broad arguments, but they're losing on the narrower

61
00:04:08,800 --> 00:04:11,760
Speaker 1: arguments as well. So, for example, in this case, the

62
00:04:11,920 --> 00:04:15,720
Speaker 1: court engaged in a kind of balancing, looking at Congress's

63
00:04:15,800 --> 00:04:20,120
Speaker 1: legitimate interest in receiving the documents that they've subpoened and

64
00:04:20,200 --> 00:04:24,400
Speaker 1: looking at the president's legitimate interests in privacy, and the

65
00:04:24,480 --> 00:04:31,200
Speaker 1: court held overwhelmingly that Congress's interest outweighs the president's interest

66
00:04:31,320 --> 00:04:34,680
Speaker 1: in privacy. The Second Circuit was careful to note that

67
00:04:34,720 --> 00:04:38,040
Speaker 1: there might be some documents where that balance would come

68
00:04:38,040 --> 00:04:43,080
Speaker 1: out the other way. It identified certain categories of documents

69
00:04:43,160 --> 00:04:46,080
Speaker 1: and then asked the district court to go back and

70
00:04:46,120 --> 00:04:50,040
Speaker 1: look at documents within those very narrow categories. But as

71
00:04:50,080 --> 00:04:53,960
Speaker 1: I say, overwhelmingly, the documents that the committees have have

72
00:04:54,160 --> 00:04:58,320
Speaker 1: subpoenaed have to be turned over. Judge Debra and Livingston

73
00:04:58,920 --> 00:05:02,120
Speaker 1: dissented in the case. What did she base her descent on?

74
00:05:02,880 --> 00:05:05,320
Speaker 1: So her descent was more of a quibble, right, So

75
00:05:05,480 --> 00:05:08,280
Speaker 1: she did not accept the broad argument that the president

76
00:05:08,560 --> 00:05:13,600
Speaker 1: is completely immune from congressional process instead of her descent

77
00:05:13,800 --> 00:05:15,800
Speaker 1: was on the grounds that she would have applied a

78
00:05:15,839 --> 00:05:19,520
Speaker 1: different standard for whether or not to grant a preliminary

79
00:05:19,600 --> 00:05:23,200
Speaker 1: in junction, a slightly lower standard that would have been

80
00:05:23,200 --> 00:05:26,160
Speaker 1: more favorable to the president. And then she wanted the

81
00:05:26,240 --> 00:05:30,000
Speaker 1: district court to do more fact work, so she was

82
00:05:30,080 --> 00:05:33,400
Speaker 1: not holding that the president can withhold documents even on

83
00:05:33,440 --> 00:05:37,240
Speaker 1: her theory and her lower standard. Instead, she wanted the

84
00:05:37,279 --> 00:05:40,440
Speaker 1: district court to go back and do more factual research

85
00:05:40,640 --> 00:05:45,640
Speaker 1: into how important Congress's interest was versus how important the

86
00:05:45,680 --> 00:05:50,839
Speaker 1: president's privacy interest was. The majority ruled that Congress's interests

87
00:05:50,880 --> 00:05:54,000
Speaker 1: are sufficiently weighty based on the record already in front

88
00:05:54,040 --> 00:05:56,599
Speaker 1: of us, and there's no need to go back and

89
00:05:56,640 --> 00:06:00,479
Speaker 1: do that that balancing. This is the third Helid court

90
00:06:00,560 --> 00:06:03,840
Speaker 1: ruling against Trump with regard to his financial records. The

91
00:06:03,920 --> 00:06:07,200
Speaker 1: d C Appellate Court upheld the validity of a congressional

92
00:06:07,279 --> 00:06:11,560
Speaker 1: subpoena for Trump's financial records, and the second Circuit, another panel,

93
00:06:11,640 --> 00:06:14,000
Speaker 1: upheld the validity of a subpoena from the New York

94
00:06:14,040 --> 00:06:19,800
Speaker 1: District Attorney. Is the reasoning in all these cases similar, yes,

95
00:06:20,000 --> 00:06:24,760
Speaker 1: very similar, and the consistent theme is Congress has a

96
00:06:24,839 --> 00:06:29,440
Speaker 1: legitimate oversight an investigation role, that all of us have

97
00:06:29,600 --> 00:06:33,480
Speaker 1: to comply with subpoenas the Congress issues when they act

98
00:06:33,560 --> 00:06:36,719
Speaker 1: within those roles, and that the President is not above

99
00:06:36,800 --> 00:06:39,560
Speaker 1: the law. And those themes have come out in each

100
00:06:39,600 --> 00:06:42,080
Speaker 1: and every one of those opinions and have driven them,

101
00:06:42,120 --> 00:06:45,000
Speaker 1: And in fact, these have all been really easy cases.

102
00:06:45,480 --> 00:06:49,040
Speaker 1: The President has made arguments that the courts shouldn't countenance

103
00:06:49,120 --> 00:06:54,000
Speaker 1: and that the courts have unanimously and repeatedly not countenanced.

104
00:06:54,440 --> 00:06:58,279
Speaker 1: So now the only avenue left seems to be the

105
00:06:58,320 --> 00:07:02,000
Speaker 1: Supreme Court. And there are the to other cases already

106
00:07:02,040 --> 00:07:05,359
Speaker 1: at the Supreme Court, as Donald Trump asked the Court

107
00:07:05,440 --> 00:07:08,440
Speaker 1: to hear them, and this case may end up there

108
00:07:08,480 --> 00:07:12,120
Speaker 1: as well. Is the Court likely to grant certain in

109
00:07:12,160 --> 00:07:15,600
Speaker 1: these cases? Yes, the Court is likely to grant certain

110
00:07:15,680 --> 00:07:20,160
Speaker 1: these cases. These cases involve questions of executive privilege in

111
00:07:20,160 --> 00:07:23,640
Speaker 1: the Supreme Court has only rarely spoken to those questions.

112
00:07:24,000 --> 00:07:27,280
Speaker 1: They also involve questions relating to the scope of Congress's

113
00:07:27,320 --> 00:07:32,720
Speaker 1: power to conduct investigations and oversight. And because that power

114
00:07:32,800 --> 00:07:37,480
Speaker 1: has been just so broadly assumed for so many decades

115
00:07:37,520 --> 00:07:41,760
Speaker 1: and even centuries, there's actually very little case law out

116
00:07:41,800 --> 00:07:44,840
Speaker 1: there where parties have questioned it. So there's not an

117
00:07:44,840 --> 00:07:48,800
Speaker 1: awful lot on these questions in the U S Reports,

118
00:07:48,840 --> 00:07:52,640
Speaker 1: the reports of Supreme Court opinions. These should be easy cases,

119
00:07:52,920 --> 00:07:56,520
Speaker 1: but I note that the composition of the Supreme Court

120
00:07:56,640 --> 00:08:00,560
Speaker 1: right now is such that there is a majority of

121
00:08:01,240 --> 00:08:06,960
Speaker 1: justices who have real experience as executive power advocates, and

122
00:08:07,080 --> 00:08:11,640
Speaker 1: so it is entirely possible that while these should be

123
00:08:11,720 --> 00:08:15,640
Speaker 1: easy wins for Congress, the justices on the Supreme Court

124
00:08:15,760 --> 00:08:19,960
Speaker 1: may take a different and divergent view, one that diverges

125
00:08:20,040 --> 00:08:25,320
Speaker 1: from the commonly held historical understanding of Congress's power. Thanks Neil,

126
00:08:25,560 --> 00:08:28,920
Speaker 1: that's Neil Kinkoff of the Georgia State University College of Law.

127
00:08:29,640 --> 00:08:32,600
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

128
00:08:32,640 --> 00:08:36,360
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

129
00:08:36,440 --> 00:08:40,360
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

130
00:08:40,800 --> 00:08:42,080
Speaker 1: This is Bloomberg