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 an 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 --> 00:00:20,239 Speaker 1: and on Bloomberg dot com slash podcasts. President Trump has 6 00:00:20,280 --> 00:00:23,479 Speaker 1: fought all demands for his tax returns in court, but 7 00:00:23,560 --> 00:00:26,520 Speaker 1: it now appears that only the Supreme Court can keep 8 00:00:26,560 --> 00:00:30,000 Speaker 1: his tax returns hidden. A second federal appeals court in 9 00:00:30,040 --> 00:00:32,919 Speaker 1: a month has refused to block a subpoena for Trump's 10 00:00:32,960 --> 00:00:36,840 Speaker 1: tax returns, moving the issue closer to a possible showdown 11 00:00:36,880 --> 00:00:40,560 Speaker 1: in the Supreme Court. The Manhattan Appeals Court has rejected 12 00:00:40,560 --> 00:00:44,560 Speaker 1: Trump's claim of broad presidential immunity and refused to block 13 00:00:44,600 --> 00:00:47,640 Speaker 1: the Manhattan District attorneys subpoena to his accountants for his 14 00:00:47,680 --> 00:00:51,120 Speaker 1: tax returns. Joining me as Josh Blackman, a professor at 15 00:00:51,120 --> 00:00:53,760 Speaker 1: the South Texas College of Law and author of the 16 00:00:53,800 --> 00:00:58,760 Speaker 1: book and introduction to Constitutional Law one Supreme Court Cases. 17 00:00:58,840 --> 00:01:02,480 Speaker 1: Everyone should know this was a unanimous ruling by the 18 00:01:02,480 --> 00:01:06,440 Speaker 1: Manhattan Federal Appeals Court, but it was narrow and cautious. 19 00:01:06,959 --> 00:01:10,039 Speaker 1: Tell us about it. The issue in this case begins 20 00:01:10,160 --> 00:01:14,640 Speaker 1: with the New York District Attorney, and he requested certain 21 00:01:14,720 --> 00:01:19,480 Speaker 1: documents from President Trump's accountant, and these were documents that 22 00:01:19,520 --> 00:01:24,199 Speaker 1: were being used for a criminal investigation into Trump as 23 00:01:24,240 --> 00:01:28,280 Speaker 1: an entity as a whole. Specifically, the Manhattan disc attorney 24 00:01:28,400 --> 00:01:33,520 Speaker 1: requested copies of Trump's financial records, including his tax returns. 25 00:01:34,080 --> 00:01:38,640 Speaker 1: The court then had to consider whether a state prosecutor 26 00:01:39,040 --> 00:01:43,200 Speaker 1: could request these documents from a third party. President Trump 27 00:01:43,400 --> 00:01:46,560 Speaker 1: argued that he couldn't. President Trump argued that there was 28 00:01:46,600 --> 00:01:49,480 Speaker 1: an immunity, that is, because he was president, he could 29 00:01:49,560 --> 00:01:53,800 Speaker 1: go to court and block a state court from requiring 30 00:01:53,800 --> 00:01:56,600 Speaker 1: the production of these documents. The Second Circuit Court of 31 00:01:56,600 --> 00:02:00,440 Speaker 1: Appeals decided that Trump was not immune. The word held 32 00:02:00,440 --> 00:02:03,800 Speaker 1: that the documents could go forward to be produced. This 33 00:02:03,840 --> 00:02:06,840 Speaker 1: holding doesn't mean that Trump to be indicted or prosecuted, 34 00:02:06,920 --> 00:02:09,960 Speaker 1: or even charged with a crime. All it means is 35 00:02:10,000 --> 00:02:12,880 Speaker 1: that the third party in this case of financial firm, 36 00:02:13,000 --> 00:02:17,959 Speaker 1: would be required to hand over the documents to the government. So, then, 37 00:02:18,160 --> 00:02:21,440 Speaker 1: how much of a blow is this to President Trump's 38 00:02:21,520 --> 00:02:25,480 Speaker 1: quest not to have his tax returns turned over? You 39 00:02:25,520 --> 00:02:27,359 Speaker 1: know that the tax and issue seems to have been 40 00:02:27,360 --> 00:02:29,400 Speaker 1: with us now from whats a thousand years since the 41 00:02:29,400 --> 00:02:32,680 Speaker 1: issue that never goes away. Even if the documents are 42 00:02:32,680 --> 00:02:36,640 Speaker 1: disclosed to the grand jury, that doesn't make them public, right. 43 00:02:36,720 --> 00:02:40,160 Speaker 1: Usually grand jury proceedings are sealed for a reason. Actually 44 00:02:40,160 --> 00:02:43,960 Speaker 1: disclosing them, I think, would be another issue altogether. But 45 00:02:44,000 --> 00:02:47,160 Speaker 1: what is more possible is that the grand jury may 46 00:02:47,160 --> 00:02:51,200 Speaker 1: recommend certain types of criminal indictments of if not Trump, 47 00:02:51,280 --> 00:02:54,560 Speaker 1: perhaps people in his orbit, and maybe the District Attorney 48 00:02:54,560 --> 00:02:56,440 Speaker 1: man Hattan may go so far as to actually indict 49 00:02:56,480 --> 00:02:59,200 Speaker 1: the president for certain crimes that he may have committed 50 00:02:59,400 --> 00:03:01,720 Speaker 1: or alleged to have committed before he was elected president. 51 00:03:02,280 --> 00:03:06,600 Speaker 1: Either way, this decision keeps the road going towards various 52 00:03:06,639 --> 00:03:10,720 Speaker 1: criminal prosecutions of Trump and his confederates. Did the court 53 00:03:10,840 --> 00:03:15,920 Speaker 1: address at all the president's claim of absolute presidential immunity 54 00:03:15,960 --> 00:03:20,679 Speaker 1: from criminal prosecution or even investigation while in office. They 55 00:03:20,720 --> 00:03:24,160 Speaker 1: didn't address that question. That question sort of is linkering. 56 00:03:24,680 --> 00:03:27,799 Speaker 1: What the court did say was that merely having an 57 00:03:27,800 --> 00:03:32,560 Speaker 1: investigation doesn't rise the level of a formal criminal charge. 58 00:03:33,000 --> 00:03:35,160 Speaker 1: In other words, you can have an investigation. They may 59 00:03:35,280 --> 00:03:39,400 Speaker 1: distract the president, but that's less serious than the formal 60 00:03:39,560 --> 00:03:44,200 Speaker 1: criminal prosecution. This is the second Federal Appeals court to 61 00:03:44,320 --> 00:03:48,840 Speaker 1: rule against Trump regarding tax returns. The DC Court of 62 00:03:48,880 --> 00:03:52,040 Speaker 1: Appeals ruled last month that his accounting firm had to 63 00:03:52,040 --> 00:03:54,880 Speaker 1: turn over tax records. Right, so, junie, there are two 64 00:03:54,920 --> 00:03:57,760 Speaker 1: cases we have to keep in mind. The first is 65 00:03:57,800 --> 00:03:59,320 Speaker 1: the one in New York, and this is by the 66 00:03:59,360 --> 00:04:04,720 Speaker 1: Manhattan to attorney who is requesting evidence for a local 67 00:04:04,760 --> 00:04:09,360 Speaker 1: criminal prosecution. The second case is based in Washington, d c. 68 00:04:10,000 --> 00:04:14,320 Speaker 1: And here the Democratic controlled House is requesting documents pursuing 69 00:04:14,360 --> 00:04:18,600 Speaker 1: to its impeachment inquiry. Both these cases are requesting the 70 00:04:18,640 --> 00:04:21,159 Speaker 1: same sets of documents, though for different purposes. The New 71 00:04:21,200 --> 00:04:24,120 Speaker 1: York one is for a potential criminal prosecution, whereas the 72 00:04:24,240 --> 00:04:26,560 Speaker 1: DC one is for potential indictment. And I think there 73 00:04:26,600 --> 00:04:29,560 Speaker 1: are different analyzes for each. But so far, in both 74 00:04:29,640 --> 00:04:33,799 Speaker 1: cases the court has rejected this claim of absolute immunity 75 00:04:34,160 --> 00:04:37,440 Speaker 1: for a third party. But because both these cases are 76 00:04:37,440 --> 00:04:40,000 Speaker 1: on a very fast track, it's very likely you might 77 00:04:40,000 --> 00:04:44,000 Speaker 1: see a Supreme Court decision this term about whether the 78 00:04:44,040 --> 00:04:47,600 Speaker 1: courts can block these sorts of requests. President Trump's attorney 79 00:04:47,600 --> 00:04:50,240 Speaker 1: said they're going to appeal this second Circuit decision to 80 00:04:50,320 --> 00:04:53,680 Speaker 1: the Supreme Court. The Court obviously doesn't have to take 81 00:04:53,760 --> 00:04:57,000 Speaker 1: this case. And if there are two cases being appealed, 82 00:04:57,080 --> 00:05:00,200 Speaker 1: let's say the DC Circuit case gets a pe to 83 00:05:00,240 --> 00:05:02,840 Speaker 1: the Supreme Court as well as this, and there's no 84 00:05:02,960 --> 00:05:06,279 Speaker 1: conflict in the circuits, how likely is it that the 85 00:05:06,320 --> 00:05:09,840 Speaker 1: Supreme Court would take this case? I think the Court 86 00:05:09,920 --> 00:05:13,000 Speaker 1: has to take it. Usually the Court will pass on 87 00:05:13,040 --> 00:05:17,400 Speaker 1: a decision where there's not a division among the lower courts. 88 00:05:17,440 --> 00:05:19,800 Speaker 1: But when you have a decision about the president of 89 00:05:19,839 --> 00:05:22,920 Speaker 1: the United States, and you have a decision about whether 90 00:05:23,000 --> 00:05:26,000 Speaker 1: he is subject to these various kinds of investigations, you 91 00:05:26,040 --> 00:05:29,960 Speaker 1: need a higher authority to resolve it. The Second Circuit 92 00:05:30,080 --> 00:05:34,440 Speaker 1: cited the Supreme Courts nineteen seventy four ruling in US v. 93 00:05:34,640 --> 00:05:38,279 Speaker 1: Nixon as the most relevant president. Tell us why that 94 00:05:38,400 --> 00:05:42,359 Speaker 1: is relevant here? Well. The famous case, of course, is 95 00:05:42,680 --> 00:05:47,800 Speaker 1: involving the Watergate affair in the nineteen seventies. The special 96 00:05:47,800 --> 00:05:53,080 Speaker 1: prosecutor requested the recordings from the White House. President Nixon said, no, 97 00:05:53,640 --> 00:05:57,080 Speaker 1: you can't make me give over these tapes. And President 98 00:05:57,160 --> 00:06:00,480 Speaker 1: Nixon asserted what's called absolute immunity, that is, the subpoena 99 00:06:00,520 --> 00:06:03,920 Speaker 1: can't be pushed against him. The Stream Court disagreed unanimously 100 00:06:03,920 --> 00:06:07,360 Speaker 1: and said that the president is not immune. The Nixon case, though, 101 00:06:07,520 --> 00:06:09,920 Speaker 1: is a little bit different from the case we have here, 102 00:06:10,360 --> 00:06:13,400 Speaker 1: and I'll tell you why. With Nixon, the subpoeno was 103 00:06:13,440 --> 00:06:16,600 Speaker 1: against the president directly. In the New York case, this 104 00:06:16,720 --> 00:06:20,240 Speaker 1: panis against the third party, the Mazars financial firm. So 105 00:06:20,360 --> 00:06:24,080 Speaker 1: the Nixon case isn't directly relevant, but it does teach 106 00:06:24,120 --> 00:06:28,080 Speaker 1: that this absolute immunity doesn't exist. So if the Supreme 107 00:06:28,080 --> 00:06:31,880 Speaker 1: Court justice did hear this case, would they be likely 108 00:06:31,960 --> 00:06:34,919 Speaker 1: to uphold the subpoenas in this case? I think this 109 00:06:35,040 --> 00:06:37,960 Speaker 1: is a harder question. The Court may be hesitant to 110 00:06:38,000 --> 00:06:40,360 Speaker 1: be seen as shielding Trump. And when I said the Court, 111 00:06:40,360 --> 00:06:42,839 Speaker 1: I mean John Roberts, because the only person actually matters anymore. 112 00:06:43,160 --> 00:06:45,880 Speaker 1: The Chief Justice maybe hesitant to be seen as shielding Trump, 113 00:06:45,960 --> 00:06:48,479 Speaker 1: so he may be willing to decline. Although in his 114 00:06:48,560 --> 00:06:51,600 Speaker 1: past life as a conservative judge, John Roberts was very 115 00:06:51,600 --> 00:06:54,800 Speaker 1: protective of executive privilege and executive power. He was a 116 00:06:54,839 --> 00:06:57,200 Speaker 1: White House lawyer for many years. He ruled his favorite 117 00:06:57,200 --> 00:07:00,280 Speaker 1: Present Bush in Guantanamo cases quite consistently. I don't know 118 00:07:00,279 --> 00:07:01,800 Speaker 1: how this one shakes out. I think it's a it's 119 00:07:01,839 --> 00:07:04,760 Speaker 1: harder if there's an impeacher inquiry, then I think the 120 00:07:05,279 --> 00:07:08,400 Speaker 1: courts will enforce broader subpoenas. That's the Nixon case teaches. 121 00:07:08,960 --> 00:07:11,240 Speaker 1: I think the impeachment case is stronger than the New 122 00:07:11,320 --> 00:07:14,720 Speaker 1: York case. There's some questions of whether a state prosecution 123 00:07:14,720 --> 00:07:17,720 Speaker 1: can even exists against a federal officer like the president. Generally, 124 00:07:17,800 --> 00:07:22,240 Speaker 1: federal prosecutions are supreme. Thanks Josh. That's Josh Blackman of 125 00:07:22,280 --> 00:07:26,840 Speaker 1: the South Texas College of Law. Thanks for listening to 126 00:07:26,840 --> 00:07:30,200 Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to 127 00:07:30,200 --> 00:07:33,960 Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot 128 00:07:33,960 --> 00:07:38,480 Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg