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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 at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. The Supreme Court

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Speaker 1: has agreed to review President Trump's bid to keep his

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Speaker 1: financial and tax records secret, setting up a major constitutional

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Speaker 1: and political showdown for the middle of next year's election campaign.

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Speaker 1: Trump is appealing the decisions of three appellate courts that

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Speaker 1: ruled his accountants and banks must comply with subpoenas from

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Speaker 1: the Manhattan District Attorney and congressional committees for his financial

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Speaker 1: and tax records. Joining me is Neil Devans, a professor

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Speaker 1: at William and Mary Law School. Neil President Trump lost

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Speaker 1: resoundingly in the circuit courts and the Manhattander and the

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Speaker 1: House Democrats argued that there is no compelling legal issue

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Speaker 1: because there was no split in the circuits. The subpoenas

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Speaker 1: are to third parties, and they relate to finances before

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Speaker 1: he became president, So why did the Supreme Court take

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Speaker 1: the case. So there are two possibilities. One is that

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Speaker 1: the issue is sufficiently important that even though there's no

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Speaker 1: division among the circuits, that it's the type of issue

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Speaker 1: that ought to be addressed directly by the Supreme Court

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Speaker 1: and resolved by the Supreme Court because of its import

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Speaker 1: to the authority of Congress, the authority of the district

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Speaker 1: attorney to go after financial records. That it's the type

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Speaker 1: of thing that you just need Supreme Court resolution. So

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Speaker 1: that's one possibility. A second possibility, which is sort of

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Speaker 1: more cynical possibility, is as the Supreme Court, while they

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Speaker 1: may not rule for the president, will rule in such

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Speaker 1: a way that the president will not need to turn

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Speaker 1: over his financial information until after the election because of

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Speaker 1: the Supreme Court conclude foods that the mechanism by which

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Speaker 1: the circuit courts reviewed the case, while not necessarily incorrect,

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Speaker 1: is nonetheless in need of tweaking. That might require additional

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Speaker 1: litigation and additional delay. So that's sort of a more

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Speaker 1: cynical way of looking at what's going on. In other words,

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Speaker 1: the court might require some sort of heightened evidentiary showing

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Speaker 1: or specificity before you can get the financial records of

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Speaker 1: a president of the United States. Yes, so this is

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Speaker 1: the view of the Justice Department. The Justice Department does

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Speaker 1: say that the president right to hold onto the information,

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Speaker 1: which is the argument by Trump's personal lawyers. The Justice

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Speaker 1: departments argument essentially is that the request for information has

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Speaker 1: to be more focused, more specific than what New York

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Speaker 1: did and what the Congressional committee did, and if the

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Speaker 1: Supreme Court were to rule that way, place limitations on

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Speaker 1: the president's power, but nonetheless require a greater evidentiary showing

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Speaker 1: that that might delay the litigation where New York and

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Speaker 1: the Congress might will prevail. In the long run, it

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Speaker 1: may not be a big victory for the presidency, but

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Speaker 1: in terms of the president's efforts to get the whole

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Speaker 1: matter delayed until after the election, that type of decision

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Speaker 1: would have that result. Even by taking the cases, the

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Speaker 1: president has a certain victory in that he's stopped the

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Speaker 1: clock least until June until they make their decision. Right,

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Speaker 1: so the clock has stopped temporarily. Having it stopped until

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Speaker 1: June may not accomplish that much because everything would then

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Speaker 1: be out in the open before the election, but it

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Speaker 1: artbly would accomplish a little bit. But the one thing

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Speaker 1: that stopping the clock until the June does accomplish is

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Speaker 1: it gives some credence to the argument that the President

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Speaker 1: is making that the impeachment of article related to obstruction

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Speaker 1: of Congress is inappropriate and that the president as a

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Speaker 1: legitimate claim of executive privilege. So the fact that the

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Speaker 1: court is hearing the case arguably gives the president some

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Speaker 1: cover in claiming that the judicial process ought to play

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Speaker 1: itself out before any article of in peacement dealing with

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Speaker 1: obstruction of Congress should be considered. So the President, through

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Speaker 1: that delay, prevails on that claim. Might they raise that

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Speaker 1: in the impeachment Well. Alan Dershowitz, who is uh Harvard

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Speaker 1: law professor who often seems allied with the president on

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Speaker 1: impeace and related matters, has made that very argument, So

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Speaker 1: it wouldn't be surprising. Derschwitz has been mentioned as someone

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Speaker 1: who might help represent the president, but whether he does

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Speaker 1: or does not, it would not be surprising for the

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Speaker 1: President's team to say the very fact that the Supreme

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Speaker 1: Court is to say in these cases raises the possibility

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Speaker 1: of the President is legitimately withholding information from Congress and

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Speaker 1: that the Supreme Court case needs to be resolved before

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Speaker 1: the Congress should pursue obstruction of Iggres's claims and the

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Speaker 1: articles of impeachment. Let's talk about the prior cases which

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Speaker 1: the appellate courts have pointed to. So unanimous ruling requiring

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Speaker 1: President Richard Nixon to turn over White House tapes to

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Speaker 1: the Watergate Special prosecutor and in allowing a sexual harassment

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Speaker 1: lawsuit against President Bill Clinton to go forward, how does

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Speaker 1: that fit in with what the court might rule. What

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Speaker 1: can they rule without overturning those precedents. I think the

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Speaker 1: court along the same lines to say that the president

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Speaker 1: is not above the law. That's the Nixing case, and

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Speaker 1: the needs to pursue criminal matters is still paramount, and

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Speaker 1: I would speak to the Vance case in New York,

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Speaker 1: and the power of Congress to pursue information is also

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Speaker 1: something that Congress has a right to do, and the

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Speaker 1: court can reaffirm the principles of those cases place limits

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Speaker 1: on the president's power, but nonetheless, in so doing, talk

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Speaker 1: about the evidentiary burden on the Congress or a state

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Speaker 1: or local prosecutor in making a request for information of

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Speaker 1: the president. This in some ways would be analogous to

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Speaker 1: what happened in the US versus Nixon. Nixon lost the case,

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Speaker 1: but the court recognized the power of the president to

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Speaker 1: assert executive privilege. So we could have a repeat, if

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Speaker 1: you will, of US v. Nixon, where the core places

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Speaker 1: limits on the president's power on the one hand, but

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Speaker 1: on the other hand, recognizes that the president has certain

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Speaker 1: rights and the way in which the information is requested

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Speaker 1: needs a degree of specificity that is specific to the president.

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Speaker 1: So the president gets a partial victory, even if technically

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Speaker 1: the president ultimately winds up losing the case. Why does

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Speaker 1: the president have any kind of privilege over financial records

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Speaker 1: and documents that are dated well before his presidency, and

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Speaker 1: especially in the vance case, what they're inquiring about happened

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Speaker 1: during the election, not while he's president. Right, So that's

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Speaker 1: a way in which the corps can still recognize the

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Speaker 1: power in the presidency, but at the same time hold

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Speaker 1: that in the particular case, the president doesn't prevail. So

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Speaker 1: it can be ruling in support a greater presidential prerogatives.

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Speaker 1: But for the reasons you said, conclude that in this

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Speaker 1: particular case those greater prerogatives do not give the president

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Speaker 1: of victory, or the court could further distinguish what's going

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Speaker 1: on and say, when there's a sitting president there's a

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Speaker 1: certain amount of authority the president must have to run

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Speaker 1: the business of the government, and as a result, claims

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Speaker 1: for information needs a greater degree of specificity. And this

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Speaker 1: would be a distinction of the Jones c. Clinning case,

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Speaker 1: because in the Jones c. Clinning case, the Court, as

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Speaker 1: you noted before, said that the civil lawsuit could proceed

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Speaker 1: and that the president immunize himself from the civil lawsuit

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Speaker 1: even during the time of his presidency. So the court

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Speaker 1: might agree with that principle in general, but nonetheless hold

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Speaker 1: that in pursuing litigation against the sitting president for actions

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Speaker 1: that occur before he became president, there is a degree

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Speaker 1: of specificity required in the request for information. So that's

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Speaker 1: another possibility as well. If the court comes down with

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Speaker 1: the decision in June, could the Manhattan d A turn

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Speaker 1: things around, make his request and if could we actually

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Speaker 1: see some of the documents before the election. It's theoretically possible.

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Speaker 1: It will obviously depend on whether the court gives District

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Speaker 1: Attorney Vance a complete victory and says that there's no

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Speaker 1: bar to the limit to the access to the documents.

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Speaker 1: If it's a complete victory, we might actually see something

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Speaker 1: occur between June and November. I mean unduly the President

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Speaker 1: will seek to stone Wall as much as possible, and

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Speaker 1: it's unclear how it will play out. But it turns

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Speaker 1: out that the court rules partially against the president, but

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Speaker 1: at the same time recognizes some greater evidentiary burden in

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Speaker 1: the nature of the request, then the matter will clearly

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Speaker 1: be delayed until past the election. Finally, is it likely

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Speaker 1: that Chief Justice John Roberts will be the swing vote here? No.

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Speaker 1: I think in this case it's more likely that it

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Speaker 1: will be a lopside majority. I think the request for

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Speaker 1: information is something that most of the justices will place

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Speaker 1: limitations on what the President has claimed that they won't

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Speaker 1: go along with his claim of absolute privilege during the

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Speaker 1: course of his presidency, and I think that would be lopsided.

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Speaker 1: If it turns out that the Court does say that

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Speaker 1: there's a greater evidentiary burden against the president against the

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Speaker 1: sitting president on that question, it might be closely divided,

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Speaker 1: but it's ms out that way. I think the Republicans

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Speaker 1: will stay together as a group. So it's unclear what

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Speaker 1: will happen on that specific request that the Justice Department

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Speaker 1: is suggesting. On the broader question, of whether Congress and

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Speaker 1: whether the district attorney have access to information, particularly for

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Speaker 1: conduct that occurred before the president became president. I think

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Speaker 1: the court will be lopsided in its ruling against the president,

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Speaker 1: but on the more specific question of whether there's a

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Speaker 1: great evidence to burden, that's up in the air and

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Speaker 1: that might be closely divided, with John Roberts in the middle.

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Speaker 1: Thanks Neil. That's Neil Devon's a professor William and Mary

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

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Speaker 1: You can 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 Brasso.

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Speaker 1: This is Bloomberg