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 of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:20,040 Speaker 1: and on Bloomberg dot com slash podcasts. It's the first 6 00:00:20,160 --> 00:00:24,960 Speaker 1: legal test of President Trump's strategy to stonewall all congressional subpoenas. 7 00:00:25,280 --> 00:00:28,440 Speaker 1: A Washington judge heard arguments this morning over whether a 8 00:00:28,480 --> 00:00:33,120 Speaker 1: congressional committee can obtain financial records from Trump's longtime accountants, 9 00:00:33,440 --> 00:00:36,960 Speaker 1: despite objections from Trump's lawyers, who said that deciding the 10 00:00:37,000 --> 00:00:41,839 Speaker 1: full case would undermine the president's constitutional rights to do process. 11 00:00:42,320 --> 00:00:45,040 Speaker 1: Joining me is Harold crant dean of Chicago Kent College 12 00:00:45,040 --> 00:00:48,840 Speaker 1: of Law and author of the book Presidential Powers Harold. 13 00:00:48,960 --> 00:00:51,839 Speaker 1: Last week, Judge Emmett and Matas said that he had 14 00:00:51,960 --> 00:00:55,880 Speaker 1: enough information to skip the preliminary hearing and to decide 15 00:00:55,880 --> 00:00:58,840 Speaker 1: the case, and he said that the question is fully 16 00:00:58,920 --> 00:01:02,080 Speaker 1: briefed and the court could discern no benefit from an 17 00:01:02,120 --> 00:01:06,520 Speaker 1: additional round of legal arguments. Is that an unusual departure 18 00:01:06,560 --> 00:01:09,880 Speaker 1: for a judge, Not at all? I mean, obviously, the 19 00:01:09,959 --> 00:01:12,759 Speaker 1: issue has to do with the powers of Congress visa 20 00:01:12,800 --> 00:01:16,240 Speaker 1: view the president. UM, there's really no factual issue involved 21 00:01:16,280 --> 00:01:19,759 Speaker 1: in this case. UM parties have brief that legal issue, 22 00:01:20,000 --> 00:01:21,840 Speaker 1: so it's ready to rule on And he had the 23 00:01:21,880 --> 00:01:27,400 Speaker 1: hearing this morning and President Trump's lawyer said that they've 24 00:01:27,400 --> 00:01:32,440 Speaker 1: made clear that this is not about legislation, and the 25 00:01:32,520 --> 00:01:36,000 Speaker 1: judge seemed taken aback by that. What do you make 26 00:01:36,200 --> 00:01:40,960 Speaker 1: of the President's attorneys arguments that the House can only 27 00:01:41,640 --> 00:01:45,720 Speaker 1: do congressional investigations if it involves legislation, not if it 28 00:01:45,800 --> 00:01:50,040 Speaker 1: involves the president's financial records. The president team is faced 29 00:01:50,040 --> 00:01:52,080 Speaker 1: with a very difficult task. It has to try to 30 00:01:52,080 --> 00:01:54,760 Speaker 1: figure out some kind of argument that limits the power 31 00:01:54,920 --> 00:01:58,440 Speaker 1: of all of these congressional committees to prove into the 32 00:01:58,480 --> 00:02:01,440 Speaker 1: president's finances, whether it's a the subpoena. And this is 33 00:02:01,520 --> 00:02:05,000 Speaker 1: very similar to the request for the prior tax returns 34 00:02:05,040 --> 00:02:07,400 Speaker 1: as well. So what they're trying to do is come 35 00:02:07,480 --> 00:02:09,880 Speaker 1: up with a theory that only if there's like pending 36 00:02:09,960 --> 00:02:14,840 Speaker 1: legislation or some other kind of imperative need, does the 37 00:02:14,880 --> 00:02:17,919 Speaker 1: congressional committee have a right to this information. This cuts 38 00:02:17,960 --> 00:02:21,359 Speaker 1: against history. The Congress has wide ranging interests in terms 39 00:02:21,400 --> 00:02:24,639 Speaker 1: of bringing to light issues that are facing the public. 40 00:02:24,840 --> 00:02:27,239 Speaker 1: They have issues in this case about the president and 41 00:02:27,280 --> 00:02:30,280 Speaker 1: the amounument's clause of the Constitution. So there are lots 42 00:02:30,320 --> 00:02:34,520 Speaker 1: of reasons for Congress to investigate to shed light on 43 00:02:34,680 --> 00:02:39,040 Speaker 1: issues that don't pertain to pending legislation. Now, the judge 44 00:02:39,040 --> 00:02:42,600 Speaker 1: in this case, if he goes ahead and says the 45 00:02:42,600 --> 00:02:45,520 Speaker 1: subpoena has to be honored, that's going to be appealed 46 00:02:46,160 --> 00:02:49,799 Speaker 1: and appealed and appealed as probably up to the Supreme Court. 47 00:02:50,240 --> 00:02:54,440 Speaker 1: Would he be likely to stay any decision. My guess 48 00:02:54,560 --> 00:02:57,440 Speaker 1: is the question is whether he would force the subpoena 49 00:02:57,520 --> 00:02:59,960 Speaker 1: pending the appeal, And my guess is that he would 50 00:03:00,080 --> 00:03:04,160 Speaker 1: not enforced the subpoena pending appeal, and that the status 51 00:03:04,240 --> 00:03:07,240 Speaker 1: quo would govern until this goes up the food chain 52 00:03:07,560 --> 00:03:10,560 Speaker 1: until the Supreme Court itself. There are, as you've mentioned, 53 00:03:10,600 --> 00:03:14,320 Speaker 1: there are many of these subpoena requests pending. This first 54 00:03:14,320 --> 00:03:16,880 Speaker 1: one is against the accounting company. There's others against Deutsche 55 00:03:16,919 --> 00:03:19,400 Speaker 1: Bank from a different Congressional committee. Um. And then of 56 00:03:19,400 --> 00:03:22,560 Speaker 1: course there's the issue with the fire tash returns UM. 57 00:03:22,639 --> 00:03:25,519 Speaker 1: And I think that they all at some point may 58 00:03:25,520 --> 00:03:28,400 Speaker 1: be bound together, may be separate, but they'll find their 59 00:03:28,400 --> 00:03:31,800 Speaker 1: way to the Supreme Court. Is this just one of 60 00:03:31,840 --> 00:03:35,600 Speaker 1: the many legal battles where a federal district judge and 61 00:03:35,640 --> 00:03:38,240 Speaker 1: then an appellate court is going to have to decide 62 00:03:38,640 --> 00:03:42,640 Speaker 1: the proper balance of powers between the executive and legislative 63 00:03:42,680 --> 00:03:46,040 Speaker 1: branches and how do they how do they weigh that. 64 00:03:47,560 --> 00:03:49,600 Speaker 1: It's it's a difficult in question of how to weigh 65 00:03:49,640 --> 00:03:53,440 Speaker 1: because there really isn't that many demarcations in the Constitution itself. 66 00:03:53,520 --> 00:03:56,040 Speaker 1: Is how to balance the published right to know or 67 00:03:56,120 --> 00:04:00,520 Speaker 1: congress Is right to know against the president's um secrecy. 68 00:04:00,560 --> 00:04:03,600 Speaker 1: But here this is a different issue. For instance, then 69 00:04:03,920 --> 00:04:06,400 Speaker 1: the question of the subpoena for Donald McGann, who was 70 00:04:07,000 --> 00:04:10,320 Speaker 1: counsel to the president, because there's no executive privilege that's 71 00:04:10,360 --> 00:04:13,600 Speaker 1: being weighed. All of the really that is being stated 72 00:04:13,640 --> 00:04:17,520 Speaker 1: by the President's council is that this is intrusive, it's irrelevant. 73 00:04:18,160 --> 00:04:21,880 Speaker 1: But no one is saying that these are sensitive papers 74 00:04:22,120 --> 00:04:24,200 Speaker 1: from the perspective of the separation of powers. And I 75 00:04:24,240 --> 00:04:27,080 Speaker 1: think that's a critical difference. I think the president has 76 00:04:27,120 --> 00:04:30,400 Speaker 1: a pretty good argument that Donald McGann should not testify 77 00:04:30,560 --> 00:04:33,200 Speaker 1: about much because he served as the Council to the President, 78 00:04:33,480 --> 00:04:38,040 Speaker 1: and executive privilege presumptively attaches at least much of their conversations. 79 00:04:38,080 --> 00:04:40,680 Speaker 1: But this is different. No one is claiming that these 80 00:04:40,720 --> 00:04:44,120 Speaker 1: financial records have anything to do with the exercise of 81 00:04:44,120 --> 00:04:48,240 Speaker 1: the presidency, and I think ultimately Congress will win. Let 82 00:04:48,240 --> 00:04:51,080 Speaker 1: me follow up on Don McGann. While while we're at 83 00:04:51,120 --> 00:04:55,159 Speaker 1: that point, what about the fact that Don McGann has 84 00:04:55,600 --> 00:04:58,600 Speaker 1: testified to Robert Muller and that much of what he 85 00:04:58,680 --> 00:05:03,040 Speaker 1: said has been published for every American to read. Yeah, 86 00:05:03,080 --> 00:05:04,920 Speaker 1: I mean, I think that the issue I guess that 87 00:05:05,360 --> 00:05:09,280 Speaker 1: put illegally is whether the executive privilege can be waived 88 00:05:09,360 --> 00:05:13,760 Speaker 1: because it wasn't asserted before the Muller investigation. I think 89 00:05:13,800 --> 00:05:17,240 Speaker 1: that is a plausible reading, but it really would put 90 00:05:17,240 --> 00:05:19,760 Speaker 1: it in the president in a bind. Here. The President 91 00:05:19,960 --> 00:05:24,440 Speaker 1: had told Magan go ahead and cooperate with the Special Council, 92 00:05:24,839 --> 00:05:27,800 Speaker 1: and I don't think he should be penalized for doing that. 93 00:05:28,160 --> 00:05:32,520 Speaker 1: I think that was a perhaps a surprising show of 94 00:05:33,000 --> 00:05:37,240 Speaker 1: cooperation with the Independent Council, and it should be commended. 95 00:05:37,320 --> 00:05:40,000 Speaker 1: But to suggest that that waived it for all purposes 96 00:05:40,040 --> 00:05:42,919 Speaker 1: in all times, I don't think should be the rule. 97 00:05:43,040 --> 00:05:46,080 Speaker 1: And Indeed, in another analogy, we have a longstanding rule 98 00:05:46,160 --> 00:05:50,159 Speaker 1: that classified information, even if it's been declassified once, can 99 00:05:50,200 --> 00:05:53,279 Speaker 1: be reclassified. UM. That happens often, and I think that 100 00:05:53,320 --> 00:05:56,600 Speaker 1: the same thing should be hold here. Now let's return 101 00:05:56,680 --> 00:06:01,000 Speaker 1: to today's issue, the subpoena at hand. Many legal experts 102 00:06:01,040 --> 00:06:03,760 Speaker 1: have said, in fact, everyone I've spoken to said, this 103 00:06:03,839 --> 00:06:06,760 Speaker 1: is going to be a stalling tactic and it might 104 00:06:06,800 --> 00:06:11,400 Speaker 1: take past the presidential election to actually get a ruling 105 00:06:11,560 --> 00:06:14,680 Speaker 1: on whether or not these subpoenas have to be obeyed. 106 00:06:15,120 --> 00:06:17,720 Speaker 1: Do you agree or can this move quickly? As this 107 00:06:17,839 --> 00:06:21,040 Speaker 1: judge seems to be showing You're absolutely right. This judge 108 00:06:21,680 --> 00:06:24,640 Speaker 1: knew what's at stake. I saw the stalling tactics and 109 00:06:24,640 --> 00:06:27,039 Speaker 1: said he wanted nothing of it. He didn't rule today, 110 00:06:27,040 --> 00:06:28,960 Speaker 1: but I think he finished the hearing and should be 111 00:06:29,080 --> 00:06:33,360 Speaker 1: ruling relatively soon. Again, because there's only legal issues involved, 112 00:06:33,600 --> 00:06:35,359 Speaker 1: I think this will go directly to the Court of 113 00:06:35,400 --> 00:06:38,440 Speaker 1: Appeals and UM, I think that they can put it 114 00:06:38,520 --> 00:06:41,599 Speaker 1: on a quick docket as well. I think it's a 115 00:06:41,600 --> 00:06:43,480 Speaker 1: good chance that this will get hurt in the Supreme 116 00:06:43,520 --> 00:06:47,200 Speaker 1: Court UM next term, and we would have done have 117 00:06:47,279 --> 00:06:51,599 Speaker 1: a decision before the election. Obviously, it would be up 118 00:06:51,600 --> 00:06:54,000 Speaker 1: to the Supreme Court, who could slow it down as well. 119 00:06:54,480 --> 00:06:57,760 Speaker 1: Up but I don't think delay is I think delay 120 00:06:57,880 --> 00:07:00,440 Speaker 1: is on the present side. I think delay maybe foiled 121 00:07:00,440 --> 00:07:04,480 Speaker 1: here by a quick work of judges. It's a fascinating issue, 122 00:07:04,720 --> 00:07:06,720 Speaker 1: and well you've written the book on it, so you 123 00:07:06,760 --> 00:07:09,520 Speaker 1: know how fascinating it is. Thank you so much, Harold. 124 00:07:09,880 --> 00:07:12,840 Speaker 1: That's Harold Grantie's dean of the Chicago Kent College of Law, 125 00:07:12,920 --> 00:07:17,080 Speaker 1: and his book is Presidential Powers. And just a note 126 00:07:17,120 --> 00:07:21,960 Speaker 1: here that this particular judge in August denied a request 127 00:07:22,040 --> 00:07:24,800 Speaker 1: from House Democrats to get Trump hotel records from the 128 00:07:24,840 --> 00:07:28,400 Speaker 1: General Service Administration, ruling that the Democrats, who at the 129 00:07:28,400 --> 00:07:31,240 Speaker 1: time we're a minority party in the House, did not 130 00:07:31,440 --> 00:07:35,480 Speaker 1: have standing to do so. Thanks for listening to the 131 00:07:35,520 --> 00:07:38,880 Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the 132 00:07:38,920 --> 00:07:42,840 Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com 133 00:07:42,880 --> 00:07:47,080 Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg