1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,160 --> 00:00:08,639 Speaker 1: It was the last day of the Supreme Court term, 3 00:00:08,680 --> 00:00:11,160 Speaker 1: and the Court issued decisions in two of its most 4 00:00:11,200 --> 00:00:14,840 Speaker 1: controversial cases and perhaps the most far reaching of the 5 00:00:14,840 --> 00:00:19,239 Speaker 1: Trump presidency. The clashes forced the Court to navigate politically 6 00:00:19,320 --> 00:00:24,120 Speaker 1: polarizing and constitutionally weighty issues months before the presidential election. 7 00:00:24,760 --> 00:00:27,080 Speaker 1: In a pair of seven to two decisions written by 8 00:00:27,160 --> 00:00:30,480 Speaker 1: Chief Justice John Roberts, the Court backed a New York 9 00:00:30,520 --> 00:00:34,720 Speaker 1: grand jury's bid for President Trump's financial records while blocking 10 00:00:34,800 --> 00:00:38,760 Speaker 1: for now how subpoenas, It was a tactical victory for 11 00:00:38,840 --> 00:00:42,520 Speaker 1: Trump that will in all likelihood keep his personal financial 12 00:00:42,520 --> 00:00:46,320 Speaker 1: records out of public view through the November election, although 13 00:00:46,360 --> 00:00:49,400 Speaker 1: in tweets the President framed the rulings as a loss 14 00:00:49,479 --> 00:00:53,120 Speaker 1: imposed by his enemies. Joining me is Leo Littman, Professor 15 00:00:53,159 --> 00:00:56,280 Speaker 1: of Constitutional law at the University of Michigan Law School. 16 00:00:56,640 --> 00:01:00,280 Speaker 1: Can you tie the reasoning in both cases together there 17 00:01:00,320 --> 00:01:04,880 Speaker 1: for some overarching principles? Sure so. The reasoning in both 18 00:01:04,959 --> 00:01:09,360 Speaker 1: of the subpoena cases was an important respect a win 19 00:01:09,600 --> 00:01:12,920 Speaker 1: for the rule of fox. The Supreme Court rejected the 20 00:01:12,959 --> 00:01:18,200 Speaker 1: President's broadest arguments that the president's personal financial records can 21 00:01:18,240 --> 00:01:22,000 Speaker 1: never be subpoenaed while the president is in office. The 22 00:01:22,040 --> 00:01:26,880 Speaker 1: Supreme Court also rejected the Department of Justice slightly narrower 23 00:01:27,280 --> 00:01:31,720 Speaker 1: version of that argument, which was that Grand Juries or 24 00:01:31,840 --> 00:01:36,320 Speaker 1: Congress had to make tightened showings of particular needs in 25 00:01:36,440 --> 00:01:40,640 Speaker 1: order to obtain the president's financial records, even from third parties, 26 00:01:40,760 --> 00:01:44,800 Speaker 1: rather than the president itself. However, the outcome in those 27 00:01:44,920 --> 00:01:49,160 Speaker 1: cases was practically a win for the president. The president 28 00:01:49,320 --> 00:01:53,760 Speaker 1: has sought to keep his financial records private, particularly in 29 00:01:53,840 --> 00:01:58,040 Speaker 1: the lead up to the election. The Supreme Court in 30 00:01:58,080 --> 00:02:02,960 Speaker 1: both cases directed a lower court to review the lawfulness 31 00:02:03,080 --> 00:02:08,919 Speaker 1: of the subtenas under a more case specific legal standard 32 00:02:09,400 --> 00:02:12,920 Speaker 1: that allowed the president to raise challenges as to why 33 00:02:12,960 --> 00:02:17,200 Speaker 1: these particular subtenas interfered with his ability to carry out 34 00:02:17,280 --> 00:02:21,880 Speaker 1: his duties. Because that directive will tie up these subtinas 35 00:02:21,919 --> 00:02:25,280 Speaker 1: in further litigation for the next several months and then 36 00:02:25,280 --> 00:02:28,239 Speaker 1: the lead up to the election, none of the president's 37 00:02:28,240 --> 00:02:34,200 Speaker 1: financial records will become public before election. Would you describe 38 00:02:34,480 --> 00:02:39,320 Speaker 1: either of these as landmark decisions on presidential powers, akin 39 00:02:39,440 --> 00:02:43,120 Speaker 1: to let's say, the Nixon tapes case or the Clinton 40 00:02:43,160 --> 00:02:47,120 Speaker 1: PAULA Jones case. I would not go so far as 41 00:02:47,200 --> 00:02:51,760 Speaker 1: to say either of these decisions are landmark opinions on 42 00:02:51,960 --> 00:02:55,720 Speaker 1: presidential power. So the New York grand jury case, in 43 00:02:55,760 --> 00:03:01,359 Speaker 1: particular was very much an affirment of courts prior decision 44 00:03:01,520 --> 00:03:05,320 Speaker 1: in the Nixon Watergate case, which said that a federal 45 00:03:05,720 --> 00:03:11,200 Speaker 1: grand jury could subpoena even the president's official documents of 46 00:03:11,360 --> 00:03:15,760 Speaker 1: the criminal process. I do think that the congressional subpoena 47 00:03:15,840 --> 00:03:21,120 Speaker 1: case is significant presidential power decision in that I preserved 48 00:03:21,320 --> 00:03:28,480 Speaker 1: the ability for president to delay, if not present, congressional 49 00:03:28,840 --> 00:03:34,400 Speaker 1: oversight of presidential activity. And I say that because the 50 00:03:34,560 --> 00:03:39,760 Speaker 1: standard that the court gave is in its articulation similar 51 00:03:40,200 --> 00:03:43,680 Speaker 1: in some important respects to the heightened showing of need 52 00:03:43,800 --> 00:03:48,160 Speaker 1: that the Solicitor General bed comed to show in order 53 00:03:48,200 --> 00:03:52,560 Speaker 1: to obtain the president's financial records, and by allowing president 54 00:03:52,920 --> 00:03:57,360 Speaker 1: to raise these challenges to subpoenas the court of standing 55 00:03:57,400 --> 00:04:01,440 Speaker 1: the executive branch a potent legal tool. The delay, again 56 00:04:01,640 --> 00:04:05,440 Speaker 1: is not present congressional oversights of the presidency. I want 57 00:04:05,440 --> 00:04:06,840 Speaker 1: you to talk a little bit about how the Chief 58 00:04:06,920 --> 00:04:11,680 Speaker 1: Justice approached his opinion in the case involving the New 59 00:04:11,760 --> 00:04:15,800 Speaker 1: York Prosecutor and whether there was any rebuke of the 60 00:04:15,960 --> 00:04:21,200 Speaker 1: idea that a president has absolute immunity. Yes, so the 61 00:04:21,279 --> 00:04:24,919 Speaker 1: New York Grand Jury case is absolutely a decision that 62 00:04:25,040 --> 00:04:29,120 Speaker 1: rebuked the president's argument that he was entitled to what 63 00:04:29,200 --> 00:04:35,159 Speaker 1: the president's lawyers called temporary immunity from investigation. The president's 64 00:04:35,279 --> 00:04:39,560 Speaker 1: argument was that New York prosecutors and the grand jury 65 00:04:39,720 --> 00:04:45,000 Speaker 1: could not even investigate crimes in which the president might 66 00:04:45,080 --> 00:04:49,320 Speaker 1: be implicated. Again, the subpoena in that case was directed 67 00:04:49,320 --> 00:04:54,160 Speaker 1: to a third party, an accounting firm, rather than the president, 68 00:04:54,240 --> 00:04:58,080 Speaker 1: can bow for the president's personal records, and the president's 69 00:04:58,080 --> 00:05:02,520 Speaker 1: sweeping argument was that no investication of any activity in 70 00:05:02,560 --> 00:05:06,400 Speaker 1: which the president might consumably the implicated or the target pect. 71 00:05:06,440 --> 00:05:10,240 Speaker 1: The Court rejected that argument. It rejected the idea that 72 00:05:10,480 --> 00:05:13,919 Speaker 1: when the president is possibly implicated in or the target 73 00:05:13,960 --> 00:05:17,560 Speaker 1: of an investigation, the state had to make a heightened 74 00:05:17,560 --> 00:05:22,960 Speaker 1: showing of need in order to enforce a patina. So, Yes, 75 00:05:23,160 --> 00:05:28,080 Speaker 1: the Supreme Court did definitively reject the President and the 76 00:05:28,120 --> 00:05:32,719 Speaker 1: Department of Justice Leah Trump's to appointees. Justice as Neil 77 00:05:32,760 --> 00:05:36,039 Speaker 1: Gorsig and Brett Kavanaugh were in the majority in both 78 00:05:36,080 --> 00:05:40,640 Speaker 1: the cases, but wrote concurring opinions tell us about those. 79 00:05:41,400 --> 00:05:48,080 Speaker 1: Justice Kavanaugh and Justice Gorsish actually concurred separately. That is, 80 00:05:48,520 --> 00:05:53,640 Speaker 1: they did not join the reasoning of the Supreme Court 81 00:05:53,800 --> 00:05:59,920 Speaker 1: opinion in the Vance case. Justice Kavanaugh and Justice Gorse 82 00:06:00,320 --> 00:06:05,800 Speaker 1: agreed that the lower court should examine this subpoena in 83 00:06:06,000 --> 00:06:10,000 Speaker 1: light of a different legal standard, but the standard that 84 00:06:10,120 --> 00:06:14,159 Speaker 1: they directed the lower court to apply dave let's say, 85 00:06:14,200 --> 00:06:17,760 Speaker 1: a sursum on the scale in favor of the president. 86 00:06:18,200 --> 00:06:23,280 Speaker 1: Justices Clarence Thomas and Samuel Leito dissented. How did they 87 00:06:23,360 --> 00:06:28,400 Speaker 1: explain away the prior cases, the Nixon tapes case and 88 00:06:28,640 --> 00:06:33,039 Speaker 1: the Clinton Jones case. So what they did with those 89 00:06:33,120 --> 00:06:38,599 Speaker 1: cases was say that both of those cases recognized that 90 00:06:38,720 --> 00:06:42,680 Speaker 1: the presidency, at the office of the presidency, we're special 91 00:06:42,839 --> 00:06:47,440 Speaker 1: in some ways. And even though the Nixon taste saw 92 00:06:47,880 --> 00:06:53,640 Speaker 1: potentially official records of the presidency, similar concerns about the 93 00:06:53,680 --> 00:06:57,679 Speaker 1: effect on the offices of the presidency existed even where 94 00:06:57,680 --> 00:07:01,760 Speaker 1: a party saw personal information of the presidency. And so 95 00:07:01,880 --> 00:07:06,440 Speaker 1: they abstracted away from those cases the recognition that presidents 96 00:07:06,520 --> 00:07:10,920 Speaker 1: were special, and they applied that principle to create, rather 97 00:07:11,320 --> 00:07:15,000 Speaker 1: to wee being protections for the President that I think 98 00:07:15,120 --> 00:07:19,480 Speaker 1: under any fair reading, we're inconsistent with the bottom line 99 00:07:20,080 --> 00:07:24,600 Speaker 1: of Vixon and Clinton versus Job. So this has to 100 00:07:24,640 --> 00:07:29,360 Speaker 1: go back now to the district court. What arguments could 101 00:07:29,560 --> 00:07:33,000 Speaker 1: the president make to stop the accountants from turning over 102 00:07:33,000 --> 00:07:36,280 Speaker 1: the records? I think that the arguments as the New 103 00:07:36,320 --> 00:07:40,440 Speaker 1: York grand jury will come in two categories. First, we'll 104 00:07:40,480 --> 00:07:44,400 Speaker 1: focus on whether the subpoena is overbroad, that is, whether 105 00:07:44,440 --> 00:07:49,239 Speaker 1: it requests information that isn't really necessary to the criminal 106 00:07:49,280 --> 00:07:52,200 Speaker 1: investigation that the grand jury is doing. The second will 107 00:07:52,240 --> 00:07:56,640 Speaker 1: focus on more specific arguments about how the subpoena and 108 00:07:56,760 --> 00:08:00,520 Speaker 1: its enforcement might impease the president's ability to carry out 109 00:08:00,600 --> 00:08:05,520 Speaker 1: particular constitutional duties. Is it possible, You know that the 110 00:08:05,640 --> 00:08:09,200 Speaker 1: Nixon tapes case took three months and Bush v. Gore 111 00:08:09,480 --> 00:08:13,440 Speaker 1: thirty six days, So is it possible that the New 112 00:08:13,520 --> 00:08:16,600 Speaker 1: York prosecutor Sivance could get the court to do this 113 00:08:16,720 --> 00:08:21,559 Speaker 1: on expedited basis and could get those records well before 114 00:08:21,560 --> 00:08:27,480 Speaker 1: the election. It is possible that Sivans will ask the 115 00:08:27,560 --> 00:08:32,679 Speaker 1: court for expedited consideration of the arguments on the subpoenas. However, 116 00:08:33,040 --> 00:08:37,360 Speaker 1: even if the d A convinces the lower Federal Chile 117 00:08:37,440 --> 00:08:40,560 Speaker 1: Court to move on an expedited basis. It is likely 118 00:08:40,600 --> 00:08:44,040 Speaker 1: that the President would challenge any position that is favorable 119 00:08:44,160 --> 00:08:46,600 Speaker 1: to be the New York Histrics attorney in the Court 120 00:08:46,600 --> 00:08:49,400 Speaker 1: of Appeals. And let's say that the Court of Appeals 121 00:08:49,520 --> 00:08:52,720 Speaker 1: also agrees with the New York Histrics attorney. The President 122 00:08:52,800 --> 00:08:55,679 Speaker 1: could then challenge as a decision in the Supreme Court. 123 00:08:56,200 --> 00:09:00,200 Speaker 1: And to my mind, it is extremely unlikely that d 124 00:09:00,320 --> 00:09:03,280 Speaker 1: A could convince all three levels of the federal courts 125 00:09:03,400 --> 00:09:08,440 Speaker 1: to proceed with sufficient expeditiousness that the entirety of the 126 00:09:08,440 --> 00:09:11,760 Speaker 1: proceedings will wrap up in the next two months. So 127 00:09:11,880 --> 00:09:15,320 Speaker 1: let's turn now to the congressional subpoenas, which even during 128 00:09:15,320 --> 00:09:19,119 Speaker 1: the oral arguments it seemed as if the justices were 129 00:09:19,160 --> 00:09:23,120 Speaker 1: concerned about how broad they were. What was Robert's reasoning 130 00:09:23,120 --> 00:09:26,839 Speaker 1: in his opinion in the congressional case. There too, the 131 00:09:26,920 --> 00:09:30,120 Speaker 1: Chief Justice rejected the President and the Department of Justice 132 00:09:30,120 --> 00:09:34,400 Speaker 1: EIG brought us challenges to the congressional subpoenas. The Court 133 00:09:34,480 --> 00:09:37,520 Speaker 1: said it was not going to hold that Congress could 134 00:09:37,559 --> 00:09:40,800 Speaker 1: never subpoena the personal information of the presidency, and the 135 00:09:40,840 --> 00:09:44,000 Speaker 1: court also said that it would not apply the Solicitor 136 00:09:44,080 --> 00:09:48,000 Speaker 1: General's heightened standard for Congress to demonstrate why the particular 137 00:09:48,120 --> 00:09:53,040 Speaker 1: subpoenas and the particular information were necessary. However, the Supreme 138 00:09:53,080 --> 00:09:56,640 Speaker 1: Court directed the lower court to apply a legal standard 139 00:09:56,720 --> 00:10:01,199 Speaker 1: to the subpoenas that was more attentive to possible separation 140 00:10:01,240 --> 00:10:06,120 Speaker 1: of power concern with congressional subpoenas for presidential information. That 141 00:10:06,360 --> 00:10:12,040 Speaker 1: standard might possibly differentiate between the different congressional stinas at 142 00:10:12,120 --> 00:10:15,920 Speaker 1: issue in the case, because some of the congressional subpoenas 143 00:10:15,920 --> 00:10:21,040 Speaker 1: not the president's personal information as representative of a case 144 00:10:21,080 --> 00:10:26,000 Speaker 1: study for larger problems in the regulatory regime. Other subpoenas 145 00:10:26,120 --> 00:10:29,760 Speaker 1: not the president's financial records because there was a particular 146 00:10:29,840 --> 00:10:34,560 Speaker 1: need to find the president's financial information in particular. So LEO. 147 00:10:34,800 --> 00:10:37,640 Speaker 1: Why the court decide to have a tougher standard there 148 00:10:37,679 --> 00:10:43,240 Speaker 1: when this all concerns information before he was president? So 149 00:10:43,440 --> 00:10:48,400 Speaker 1: the Court gave as reasons the prospect that even subpoenas 150 00:10:48,440 --> 00:10:53,000 Speaker 1: for personal records might impede the president from carrying out 151 00:10:53,200 --> 00:10:59,000 Speaker 1: duties of the president's office. If particular records were let's say, 152 00:10:59,200 --> 00:11:05,800 Speaker 1: extra burdens um to obtain for particularly prided then the 153 00:11:06,240 --> 00:11:09,760 Speaker 1: Congress might not be able to get that information because 154 00:11:09,800 --> 00:11:15,360 Speaker 1: obtaining that information. I heard the Office of the Presidency similarly, 155 00:11:15,400 --> 00:11:20,520 Speaker 1: given concerns about congressional abuse of subpoena, As the Chief 156 00:11:20,600 --> 00:11:25,520 Speaker 1: Justice said, there had to be some demonstration that sftina 157 00:11:25,880 --> 00:11:29,319 Speaker 1: were not overbroad and they didn't seek too much information. 158 00:11:29,960 --> 00:11:33,679 Speaker 1: And that standard, I think calls into question the congressional 159 00:11:33,679 --> 00:11:37,920 Speaker 1: subtoinas that seek the president's information as representative of a 160 00:11:38,000 --> 00:11:41,640 Speaker 1: larger problem, because why might you need the president's information 161 00:11:41,679 --> 00:11:46,199 Speaker 1: in particular when you can obtain and request other parties 162 00:11:46,520 --> 00:11:50,800 Speaker 1: information that would also be representative about potentially larger phenomena. 163 00:11:51,520 --> 00:11:56,720 Speaker 1: Why did Justices Clarence Thomas and Samuel Alito find that 164 00:11:56,720 --> 00:12:00,600 Speaker 1: that was not sufficient? Why did they dissent year two? 165 00:12:01,240 --> 00:12:05,120 Speaker 1: I think that both Justice Thomas and Justice Alito believe 166 00:12:05,320 --> 00:12:10,040 Speaker 1: that the majority is standard is not sufficiently protective of 167 00:12:10,120 --> 00:12:13,240 Speaker 1: the Office of the Presidency, and that it renders the 168 00:12:13,280 --> 00:12:18,239 Speaker 1: office vulnerable to what they would describe as presidential harassment 169 00:12:18,520 --> 00:12:22,760 Speaker 1: or congressional abuse, and so they will allow the President 170 00:12:22,920 --> 00:12:29,360 Speaker 1: to raise where broad side challenges such as well, these 171 00:12:29,360 --> 00:12:33,199 Speaker 1: subpoenas in general in CONFERI of my ability to carry 172 00:12:33,200 --> 00:12:36,240 Speaker 1: out the duties of my office without making any more 173 00:12:36,240 --> 00:12:41,400 Speaker 1: specific argument for showing to these opinions and the term 174 00:12:41,440 --> 00:12:46,240 Speaker 1: as a whole show that Justice Roberts is in control 175 00:12:46,280 --> 00:12:50,600 Speaker 1: of the court in more ways than one. Oh. Yes, 176 00:12:50,720 --> 00:12:55,679 Speaker 1: the Chief Justice. This is the Roberts Court in many ways. 177 00:12:55,760 --> 00:12:58,400 Speaker 1: He is the chief Justice with the assigning power for 178 00:12:58,480 --> 00:13:00,800 Speaker 1: the opinion. He is the chief sits with the ability 179 00:13:00,840 --> 00:13:04,280 Speaker 1: to schedule cases when they are argued. He is also 180 00:13:04,440 --> 00:13:06,960 Speaker 1: the Court of the Media justice, and so he has 181 00:13:07,160 --> 00:13:12,480 Speaker 1: considerable power to shape all of the Court's decisions. There's 182 00:13:12,520 --> 00:13:17,760 Speaker 1: been talk since Justice Courseus wrote the lgbt Q decision 183 00:13:18,120 --> 00:13:23,480 Speaker 1: and Justice Roberts wrote the abortion decision and sided with 184 00:13:23,520 --> 00:13:26,920 Speaker 1: the liberals in those cases, there's been, you know, talk 185 00:13:27,120 --> 00:13:30,120 Speaker 1: from conservatives that we've got to find a way to 186 00:13:30,480 --> 00:13:35,800 Speaker 1: get justices that are guaranteed basically to vote the conservative way. 187 00:13:36,160 --> 00:13:39,320 Speaker 1: And it seems like this case may add fuel to 188 00:13:39,440 --> 00:13:42,880 Speaker 1: that movement. Does it show that you just can't get 189 00:13:42,880 --> 00:13:45,000 Speaker 1: a justice that will stay in the in the line 190 00:13:45,000 --> 00:13:48,080 Speaker 1: that you think he or she should be in. I 191 00:13:48,160 --> 00:13:51,600 Speaker 1: think that perhaps the Tromp administration and a conservative legal 192 00:13:51,640 --> 00:13:54,600 Speaker 1: movement we're a little overconfident in what they could ask 193 00:13:54,760 --> 00:13:57,920 Speaker 1: this particular Supreme Court to do. But I also think 194 00:13:57,920 --> 00:14:00,800 Speaker 1: it would be a mistake to suggest the decisions this 195 00:14:00,960 --> 00:14:05,520 Speaker 1: test term means that politicians are incapable of selecting justices 196 00:14:05,640 --> 00:14:09,480 Speaker 1: who votes they can predict. In many of the cases, 197 00:14:09,760 --> 00:14:13,040 Speaker 1: either the outcome or the legal reasonings that the justices 198 00:14:13,280 --> 00:14:18,600 Speaker 1: adopted very much tracked the views of the political party 199 00:14:18,880 --> 00:14:22,480 Speaker 1: that appointed the justices. So even though Justice Course which 200 00:14:22,520 --> 00:14:26,720 Speaker 1: offers the opinion that found Title seven prohibited discrimination on 201 00:14:26,760 --> 00:14:30,040 Speaker 1: the basis of sexual orientation, he specifically noted that he 202 00:14:30,160 --> 00:14:35,240 Speaker 1: was not deciding whether entities with religious objections to LGBT 203 00:14:35,480 --> 00:14:41,600 Speaker 1: equality could be subject to that non discrimination promation. Rather, 204 00:14:41,720 --> 00:14:45,960 Speaker 1: in other decisions this term, he stated that other pieces 205 00:14:46,000 --> 00:14:50,840 Speaker 1: of federal law, whether federal statutes or the Constitution, requires 206 00:14:51,000 --> 00:14:55,560 Speaker 1: the federal government to exempt entities with religious objections from 207 00:14:55,640 --> 00:14:59,400 Speaker 1: non discrimination provisions or civil rights statues. And so I 208 00:14:59,480 --> 00:15:02,800 Speaker 1: think that in many respects and in many decisions, the 209 00:15:02,920 --> 00:15:07,040 Speaker 1: justices voted consistent with the views of the political party 210 00:15:07,120 --> 00:15:10,200 Speaker 1: who appointed up. Thanks so much for being on Bloomberg Law. Leah. 211 00:15:10,360 --> 00:15:13,520 Speaker 1: That's Leah Littman, professor at the University of Michigan Law School, 212 00:15:13,800 --> 00:15:16,560 Speaker 1: And that's it for the edition of Bloomberg Law. Remember 213 00:15:16,560 --> 00:15:18,400 Speaker 1: You can always get the latest legal news on our 214 00:15:18,400 --> 00:15:22,120 Speaker 1: Bloomberg Law podcast. You can find them on iTunes, SoundCloud, 215 00:15:22,280 --> 00:15:26,720 Speaker 1: or Bloomberg dot com slash podcast slash Law. I'm June Grosso. 216 00:15:26,880 --> 00:15:29,280 Speaker 1: Thanks so much for listening, and remember to tunity The 217 00:15:29,280 --> 00:15:32,040 Speaker 1: Bloomberg Lawn Show weeknights at mp M Eastern right here 218 00:15:32,080 --> 00:15:42,680 Speaker 1: on Bloomberg Radio. Yeah.