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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 an 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. Lawyers for President Trump,

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Speaker 1: trying to block a grand jury subpoena for years of

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Speaker 1: his tax returns, argue to the Second Circuit Court of

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Speaker 1: Appeals that the president has absolute immunity from criminal investigation

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Speaker 1: while he's in office. That caused one of the judges

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Speaker 1: to ask about Trump's boast in that he was so

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Speaker 1: popular he could shoot someone on Fifth Avenue and not

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Speaker 1: lose voters. Joining me as Harold Crent, a professor at

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Speaker 1: the Chicago Kent College of Law and author of the

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Speaker 1: book Presidential Powers Harold. During the arguments, Judge Denny Chin

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Speaker 1: asked Trump's lawyer, William Consenvoy about the Fifth Avenue story,

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Speaker 1: and Conservoy stuck to the claim of presidential immunity. What's

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Speaker 1: your view on on the Fifth Avenue example, local authorities

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Speaker 1: couldn't investigate, They couldn't do anything about it. I think

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Speaker 1: once a president is removed from office, any local authority.

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Speaker 1: This is not a permanent immunity. Well, I'm talking about

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Speaker 1: while in office. No, there's the hypore nothing could be done.

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Speaker 1: That's your position, That is correct. Is there any basis

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Speaker 1: in law for that claim of absolute immunity from state

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Speaker 1: judicial process? There's no president, there's no claim. Is this

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Speaker 1: sort of an astonishing populate to put the president above

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Speaker 1: the law while the president's in office. I mean, one

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Speaker 1: could imagine that in some other kind of regime, but

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Speaker 1: that's certainly inconsistent with the presidents we have, particularly from

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Speaker 1: President Nixon, President Clinton, and so forth. You mentioned President Nixon.

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Speaker 1: The Supreme Court ordered the White House to hand over

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Speaker 1: President Nixon's audio tapes during the Watergate investigation. The subpoena

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Speaker 1: here is for eight years of tax returns from Trump's accountants.

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Speaker 1: Is the Nixon case precedent for this case or is

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Speaker 1: it distinguishable? And the next case is president for this

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Speaker 1: because there there was a criminal investigation into cover up

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Speaker 1: and instruction of justice into the Watergate break in and

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Speaker 1: affiliated conduct, and the court then had a claim about

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Speaker 1: whether or not they could require the president to cooperate

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Speaker 1: with the investigation while he was in office, and obviously

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Speaker 1: we know that the unanimous court held that he did.

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Speaker 1: It wasn't absolute. There was a balancing test about the

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Speaker 1: needs of the criminal justice system to be balanced against

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Speaker 1: the strength of the president's claim of privilege. But I think,

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Speaker 1: as you alluded to, the claim of privilege here is

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Speaker 1: so weak because it doesn't have anything to do with

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Speaker 1: the president president and has to do with private tax

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Speaker 1: returns prior to win President Trump assumed office. So I

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Speaker 1: think that even under the Nixon president, the claim by

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Speaker 1: President Trump slayers is extremely weak. Past presidents have actually

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Speaker 1: testified in criminal and civil litigations. This is just a

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Speaker 1: subpoena for tax records. I want to get your reaction

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Speaker 1: to what Chief Judge Robert Katzman said. The premise is

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Speaker 1: that this is a distraction. It distracts the president from

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Speaker 1: carrying out his duties. Where is the distraction If the

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Speaker 1: subpoena has served on accountants, Uh, the president doesn't have

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Speaker 1: to do anything to comply with the subpoena. Any kind

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Speaker 1: of balancing test suggests that President Trump loses, which is

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Speaker 1: why his attorney had to make the sort of a

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Speaker 1: landish claim here. Now, even the Department of Justice, I

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Speaker 1: think it's worthy of note backed away from what President's

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Speaker 1: private attorney said. They did suggest that it was a

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Speaker 1: balancing test. They just said that the claim here by

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Speaker 1: the State of New York was so tenuous that it

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Speaker 1: wouldn't meet the test that they've just crafted out of

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Speaker 1: whole cloth. But at least they acknowledge the fact that

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Speaker 1: there was no absolute privilege not to be investigated a

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Speaker 1: while in office. So the fact that the Justice Department

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Speaker 1: disagreed with the President's private attorney suggests something. Was it

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Speaker 1: wise for the president's lawyers to take such an extreme

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Speaker 1: position when you know, in recent memory you can have

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Speaker 1: a picture of Bill Clinton testifying in a civil case. Absolutely,

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Speaker 1: and even President John Kenney, which few people remember, was

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Speaker 1: responsive to a civil case that arose prior to his

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Speaker 1: assumption of the presidency as well. And I think the

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Speaker 1: reason why the President's attorney was cornered was the fact

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Speaker 1: that under any kind of balancing tests, as Judge Casman said,

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Speaker 1: there's just so little on the president's side. It was

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Speaker 1: a civil case. Even if it's a criminal case, it

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Speaker 1: arose prior to President Trump's assumption of the mantle of

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Speaker 1: the presidency, and to comply, it's a third party giving

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Speaker 1: over tax return so there's like no burden on the presidency.

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Speaker 1: I mean, what they suggest is at some point, if

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Speaker 1: fifty states open up criminal law investigations into the presidency,

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Speaker 1: under all sorts of theories, yes there might be a

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Speaker 1: disruption of the president's time, focus, and energy, and that

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Speaker 1: would be destabilizing to our republic. But this is not

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Speaker 1: the case. It's the first one. It's just the third

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Speaker 1: party releasing tax returns. So their specter of some kind

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Speaker 1: of handicapped presidency simply is a phantom. At this point,

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Speaker 1: the Chief Judge here acknowledged that this is going to

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Speaker 1: end up at the Supreme Court. Is there any way

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Speaker 1: the justices could countenance a claim of absolute presidential immunity.

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Speaker 1: I think even the Supreme Court, made up of sympathizers

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Speaker 1: to the president, would reject this claim. It's just too unprecedented,

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Speaker 1: it's too broad, it's too unleavened, and I think they

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Speaker 1: would have a hard time making any kind of compromised position,

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Speaker 1: even as the part of Justice tried to serve up

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Speaker 1: because this is in no way a disruption to the presidency.

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Speaker 1: To allow masures and account income many to release financial documents,

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Speaker 1: this is being fast tracked. There is an agreement between

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Speaker 1: the Manhattan DA's office and the President's lawyers to fast

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Speaker 1: track this case. So could we get a Supreme Court

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Speaker 1: ruling before the elections. We absolutely could. The Supreme Court

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Speaker 1: has taken emergency cases before, such as in the United

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Speaker 1: States Persis Nixon case that we talked about, But in

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Speaker 1: this case, there's plenty of time before the Supreme Court

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Speaker 1: term ends in June of two thousand and twenty for

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Speaker 1: them to take this case and resolve it. I expect

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Speaker 1: that will happen. I think the Supreme Court will feel

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Speaker 1: duty bound to take it, but they could surprise us

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Speaker 1: and say this isn't of great enough import and not

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Speaker 1: enough in terms of a split within the judicial system

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Speaker 1: to take this case, because it is so settled that

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Speaker 1: the president is not immune from any kind of investigation

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Speaker 1: while he was in office, as we've seen in the

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Speaker 1: Nixon and Clinton cases. This lawsuit is one of three

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Speaker 1: cases in which President Trump has sued investigators and the

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Speaker 1: companies they subpoena to try to block access to his

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Speaker 1: financial records. Have any of the courts ruled in his favor.

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Speaker 1: The d C Circuit is the one that's come furthest along,

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Speaker 1: and they've also held against the president so far with

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Speaker 1: respect to his tax returns. So on this issue, the

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Speaker 1: president is not doing well, to no surprise. He obviously

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Speaker 1: has fared better on other claims in the courts, and

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Speaker 1: I don't think he has much of a legal leg

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Speaker 1: to stand on in this case. I'm not surprised that

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Speaker 1: both the Second Circuit of DC Circuit have come down

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Speaker 1: strongly against him, and particularly strongly against the relatively outlandish

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Speaker 1: claims of his private attorneys, because we don't want to

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Speaker 1: live in a republic, or most of us don't want

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Speaker 1: to live in a republic where the president is absolutely

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Speaker 1: immune from any kind of investigation during the pendency of

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Speaker 1: his presidency. Also, he's making a claim that his presidentidential

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Speaker 1: immunity extends to his companies. It is beyond logic to

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Speaker 1: think that even if the president were in some way

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Speaker 1: to be protected, that the president's private company would be

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Speaker 1: protected as well. I think the theory must be that

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Speaker 1: any kind of civil suit or a criminal suit against

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Speaker 1: the president, whether it's in his private capacity or public capacity,

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Speaker 1: must be stopped in order to prevent any kind of

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Speaker 1: distraction from the presidency. That's the argument in the best

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Speaker 1: light has laid forward by the president's private Council. But

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Speaker 1: of course that distraction argument has been roundly repudiated by

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Speaker 1: the Supreme Court, both in the Clinton and in the

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Speaker 1: Nixon cases, and I don't think the current Supreme Court

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Speaker 1: would be in a mood to revisit that. Harold, how

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Speaker 1: important is this case to concepts of presidential power and

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Speaker 1: separation of powers? Or is this case so far out

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Speaker 1: there that it's not that important? Well, I mean, if

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Speaker 1: the Supreme Court reversed its prior stance and rule to

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Speaker 1: the president would be absolutely immune from any kind of

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Speaker 1: investigation during the presidency, I do think would make huge

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Speaker 1: law and would change other kinds of allied doctrines. I

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Speaker 1: don't think that's going to happen. I don't expect it

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Speaker 1: will happen so far. It's not one of these fascinating

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Speaker 1: questions which hasn't arisen before and which you can see

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Speaker 1: great arguments on both sides. I mean, it strikes me

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Speaker 1: as a relatively desperate measure to protect the presidency from

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Speaker 1: release of financial issues that have nothing to do with

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Speaker 1: his presidency, and the attorneys can make those arguments, but

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Speaker 1: I don't think they're going to to win. But yes,

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Speaker 1: if they won, then we would have to reassess the

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Speaker 1: legal landscape because the presidents would be in a much

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Speaker 1: more powerful position and would be really outside the grasp

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Speaker 1: of law and investigations. We know it for however long

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Speaker 1: these in power, I mean to you is a sort

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Speaker 1: of bizarre parallel. Prime Minister Netanyahu in Israel, supposedly, some

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Speaker 1: people say, is just trying to continue to become prime

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Speaker 1: minister or not because he really thinks he can lead

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Speaker 1: the nation or should lead the nation, because he doesn't

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Speaker 1: want to be indicted and prosecuted. And we don't want

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Speaker 1: to have a situation where the presidency is colored by

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Speaker 1: that that you're wanting to be president so you can't

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Speaker 1: be investigated. And that's I think what President Trump's lawyers

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Speaker 1: are striving for, and it's something that I think that

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Speaker 1: we need to avoid because the president needs to be

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Speaker 1: accountable in some measure. Obviously is accountable in appeachment, but

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Speaker 1: they should be accountable also, if not to indictment, at

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Speaker 1: least to some investigation in terms of the normal criminal process.

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Speaker 1: That's important. Thank you, Harold. That's Harold Crent at the

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Speaker 1: Chicago Kent College of Law. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcasts. I'm June Brolso this is Bloomberg