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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump is

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Speaker 1: fighting to keep his financial documents secret in several courts.

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Speaker 1: The DC Court of Appeals is the first appellate court

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Speaker 1: to hear arguments over those financial documents. Trump is asking

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Speaker 1: the court to overturn a trial judge's decision allowing the

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Speaker 1: House Oversight and Reform Committee to demand information from his accountants.

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Speaker 1: Joining me is Steven Schwinn, a professor at John Marshall

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Speaker 1: Law School. Stephen, what were the key points the highlights

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Speaker 1: in the arguments of both sides? Hi, Good afternoon, June. Sure. So.

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Speaker 1: President Trump came in and argued first that the committee

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Speaker 1: lacks a legitimate legislative purpose in requesting the documents. Second,

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Speaker 1: that the committee was engaged in law enforcement as opposed

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Speaker 1: to lawmaking, in violation a separation of powers principles. Third,

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Speaker 1: that the committee didn't have a clear statement that its

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Speaker 1: investigatory authority ran to the President as opposed merely to

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Speaker 1: the executive branch. More generally, on the other side, with

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Speaker 1: the House, set is, look, we're seeking to enforce financial

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Speaker 1: disclosure laws, conflict of interest laws, ethics and government laws,

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Speaker 1: and even the emoluments clause in the Constitution, and we're

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Speaker 1: looking to legislate in those areas. So that what they

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Speaker 1: said is we need information about the president's financial history

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Speaker 1: in order to help us do that. Observers say that

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Speaker 1: two of the judges on the panel appeared skeptical of

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Speaker 1: Trump's argument two out of three in EU opinion, which

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Speaker 1: side has the better arguments? Oh, I think the House

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Speaker 1: of Representatives by far has the better arguments here, And

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Speaker 1: I agree with the assessment that two out of three

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Speaker 1: seemed favorable to the House arguments and in some cases

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Speaker 1: downright hostile to President Trump's arguments. But as to that

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Speaker 1: third judge, Judge row Um, it's not entirely clear to

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Speaker 1: me that she's going to go with the president, even

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Speaker 1: though she seemed more favorable to the President's positions. She's

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Speaker 1: the most recent appointee appointed by President Trump. So what

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Speaker 1: kind of an impact could decisions in these cases that

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Speaker 1: are pending have on the balance of power? Between the

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Speaker 1: executive and legislative branches. That's a fantastic question and a

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Speaker 1: really important one, certainly weighing on the judge's minds. First off,

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Speaker 1: I expect that these opinions will go up to the

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Speaker 1: Supreme Court, so these lower court opinions are probably not

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Speaker 1: the final say on this. But even if they are,

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Speaker 1: what this could mean if they ruled for President Trump

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Speaker 1: is that Congress has substantially less investigatory power than it

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Speaker 1: did before the cases. If they rule instead for the

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Speaker 1: House of Representatives. I think basically it's going to be

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Speaker 1: the status quo. And eventually we'll see these financial documents

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Speaker 1: from President Trump's accountants, but that won't really change the

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Speaker 1: status quo in terms of separation of powers. Do you

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Speaker 1: have any idea or you know, inkling as to which

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Speaker 1: way the Supreme Court justices might go on this another

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Speaker 1: fantastic question, and I really have no idea. I have

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Speaker 1: given up guessing which way the Supreme Court is going

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Speaker 1: to go in any particular kind of case. I do

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Speaker 1: think that the lower courts and the Supreme Court will

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Speaker 1: probably view the sweep of the subpoena somewhat skeptically, even

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Speaker 1: if they don't view Congress's subpoena power skeptically. And what

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Speaker 1: I mean by that is the subpoena seeks ten years

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Speaker 1: of financial records, many of which predate President Trump's ascension

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Speaker 1: to office, and it's not obvious. Even a couple of

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Speaker 1: the judges on on Friday panel suggested that it's not

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Speaker 1: obvious why Congress would be interested in information before President

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Speaker 1: Trump became president in order to legislate about ethics and

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Speaker 1: government for a president. So Stephen, the District court judge

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Speaker 1: who ruled in this case below, incided with the House.

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Speaker 1: He cited Watergate and other historical moments. But is there

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Speaker 1: any precedent in the Watergate or Whitewater investigations forgetting this

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Speaker 1: kind of information? Well, yes and no. So both of

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Speaker 1: those investigations suggest that Congress does have sweeping and quite

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Speaker 1: broad investigatory authority on the one hand. On the other hand,

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Speaker 1: those cases can be distinguishable when we get into the weeds,

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Speaker 1: and what we're presented with here is really an unprecedented

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Speaker 1: kind of situation. So while those cases do stand for

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Speaker 1: broad congressional authority to investigate the president event and other

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Speaker 1: aspects of the executive branch, they can be distinguished as well,

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Speaker 1: and I think it's going to depend on how a

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Speaker 1: judge views those in relationship to this case as to

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Speaker 1: whether they're presidential. So, in a separate case in New York,

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Speaker 1: the President and his family are trying to stop one

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Speaker 1: of their largest letters, Deutsche Bank, from complying with a

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Speaker 1: congressional subpoena and Capital One as well, and the President

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Speaker 1: has appealed that ruling because a judge they're also sided

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Speaker 1: with the House. Are the issues in that case basically

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Speaker 1: the same as the issues in the DC case? They're

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Speaker 1: almost identical. There is one additional argument in the second

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Speaker 1: circuit that President Trump is making. There's a federal law

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Speaker 1: called the Right to Financial Privacy Act and some question

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Speaker 1: about whether this act applies when Congress requests information. The

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Speaker 1: Act provides some privacy protections against government inquiries, and the

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Speaker 1: question is does a congressional investigation constitute a government inquiry

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Speaker 1: that would trigger those privacy protections under the Act. So

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Speaker 1: that's the additional question in the second circuit case, But

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Speaker 1: otherwise the arguments are virtually the same. There's also a

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Speaker 1: subpoena of the Treasury Secretary Stephen Manuchen under a specific

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Speaker 1: provision of the law. Is that a stronger case. Well,

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Speaker 1: I actually think it's a somewhat weaker case for the president.

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Speaker 1: I think it's a stronger case for Congress because the

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Speaker 1: statute is just so crystal clear on this. Now. The

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Speaker 1: President is making very similar arguments in that case about

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Speaker 1: the lack of a legitimate legislative purpose, separation of powers

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Speaker 1: issues that arise when Congress seeks to poke its nose

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Speaker 1: into the goings on of the president. But I think

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Speaker 1: the president has a weak case in the DC Circuit

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Speaker 1: and in the Second Circuit, I think the President actually

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Speaker 1: has a weaker case with regard to the tax returns

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Speaker 1: in the I R. S case. Well, we shall see

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Speaker 1: and how long this takes. I know that in this

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Speaker 1: case the Court is expediting its decision, but there are

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Speaker 1: all the appeals. Thank you so much for joining us.

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Speaker 1: That's Stephen Schwinn. He's a professor at John Marshall Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg