Trump Loses Document Standoff at Appellate Court

his accountants Mazars? The d C Federal Court of Appeals ruled against Trump in one of several cases testing Congress's power to obtain a sitting president's financial records in the name of oversight. Joining me is Neil Kincoff, a professor of constitutional law at Georgia State University College of Law. Neil, there are several subpoena disputes before the courts, So how significant is this one ruling by a d C Federal

appeals court. It's tremendously significant. First of all, it's significant because it orders the president's accountant to turn over tax returns, and I think those will be a significant trove of evidence for the houses it works through its various inquiries. But also the law it lays down is well clearly affirms the various precedents that applied to assertions of privilege by the President and assertions for information by Congress, and it comes down very strongly on the side of Congress.

So this will be an important precedent moving forward. So Neil explain what the court decided. Briefly, The court decided that Congress had a legitimate interest in seeing the president's tax returns, and that if Congress has a legitimate interest, it doesn't in any way matter that Congress may also

have political motives. So the president's objection and his accountants objection to turning over the tax returns was that the real reason was politics, and the court's response to that was that Congress can have political motives as long as it also has a legitimate legislative motive for seeking the information, and it did in this case, and I think that pretty clearly demonstrates that it will in all of its inquiries. Might courts see a difference between President Trump's records as

president and personal records before his presidency. I don't think so, not after this case, because this case involved tax returns before Donald Trump was president and tax returns after Donald Trump was president, and the d C. Circuit said they are all within Congress's legitimate interests to see. It was a two to one decision, and the judge and dissent was Naomi Rao, a recent appointee of President Trump's. What

were her reasons for dissenting? Her dissent sure looked an awful lot like the various press releases that have come from the White House, And there's very little in the way of legal precedent for her position. She simply says Congress is motivated by attacking the president and that's not a legitimate legislative function. And you know, she's wrong in

terms of where the cases have ever been before. I think her opinion really is just an application to be considered for the next opening on the Supreme Court if Donald Trump gets to make another appointment. As a legal argument, it's really not serious. It's interesting that even in her descent, she said the House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power. So does that indicate that if this were an impeachment

inquiry she would have a different opinion. It indicates that, I mean, the first problem with that is that, of course Congress has many legitimate legislative interests in seeing the president's tax returns. For one thing, they have a legitimate interest in applying the Emoluments Clause right. The emoluments Clause specifically authorizes Congress to allow for officials, including the president,

to receive emoluments in certain circumstances. Congress also has to figure out whether or not the ethics laws that apply to executive branch officials including the president, are being enforced properly or whether those laws need to be updated, and seeing the president's tax returns will give them vivid illustrations of whether or not there are holes in the ethics laws.

All of those are legitimate legislative functions, So she's wrong to say that Congress can't offer a legitimate legislative function and has to rely on impeachment. But I think the answer to your question is yes. If Congress says impeachment and now they have that, Judge Row would be required to say, well, as long as this is related to

an impeachment inquiry, Congress can get the information. So President Trump's lawyers could ask the full DC Appeals Court to reconsider the ruling, which might drag things out for them, or go straight to the Supreme Court for an emergency review. What's the better path for Trump? Strategically has better path is to ask the full DC Circuit court because that

delays things. If the full DC Circuit were to hear it, then you'd have to go through the whole process of submitting briefs, having oral arguments, then the full DC Circuit taking time to write its opinions, and so that would delay the matter by months, and delay I think works in the President's favor. So I imagine that's the path he would pick. I don't imagine the d C Circuit would grant full on bonk review. And would the Supreme Court have to take the case? And if so, what

would the ruling be like there? So the Supreme Court doesn't have to take the case, it could simply leave the d C Circuit's ruling in place. And you know, perhaps the Supreme Court would do that. And this is certainly an interesting case. It presents issues that the Supreme Court doesn't very often get to speak about, and there may be some things it wants to say as a way of putting down a marker for the rest of the impeachment inquiry. So it Mike Well, grant the case

in order to do that. If it does, then you know the Court can act quite expeditiously. I was just looking back at the Watergate tapes case, and the subpoena for the Watergate tapes was issued in April. The case got all the way to the Supreme Court and received an opinion from the Supreme Court in July of that same year. So just a matter of a little under three months the Supreme Court resolved that issue, so it can act quickly. The subpoenas that we're talking about were

issued before the impeachment inquiry. Now Democrats have seemed reluctant to issue subpoenas because of the problem of time. But you think that the Supreme Court could rush them through, then the Supreme Court can rush them through. And we

also see the House issuing subpoenas where where witnesses want them. Right, So Ambassador Ivanovitch was told not to appear at the house I'm hearing, and so she told the House that she wouldn't appear unless she was subpoena and the House very quickly issued the subpoena and it was complied with. I think the context where the House may be a little more reluctant is where the subpoena is going to

be challenged. Last week in New York, a federal court judge Victor Murrero tossed Trump's lawsuit to block a subpoena for his personal and corporate tax returns by the Manhattan d A. It was a skating opinion. Was the reasoning similar to what we saw from the d C Circuit

or different? Well, it was different in that the d C circuits reasoning was far more measured, right because the lawyers firm Mazars, President Trump's accounting firm didn't make the kind of outlandish arguments that Trump's own lawyers made for him in that New York case. They made them in the d C Circuit, but the d C Circuit could ignore them because Trump wasn't a party, right, So those outlandish arguments are that the president is absolutely immune from

all process in court or Congress. And the judge was, I think quite rightly dismissive of those and in fact repudiated them so sharply, I think is a way of signaling to the president's lawyers that they need to temper the kinds of arguments they're making when they go before the second circuit to argue the case. Do you think that you'll see a more tempered argument from the president's lawyers.

It's a little hard to imagine. They seem to be really committed to those arguments, and you know, I think their client appreciates their over the top representation and advocacy, and so given that dynamic, they may stick to their guns, even though the position, as a matter of law is completely indefensible. Thanks for being on Bloomberg Law. Neil. That's Neil Kinkoff, a professor at the Georgia State University College of Law. Thanks for listening to the Bloomberg Law podcast.

You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bird