Why Is Biden Protecting Trump's Tax Returns?

fighting to keep secret documents related to Trump. These include an internal memo to former Attorney General William Barr justifying the decision not to charge Trump in the Mueller probe, grand jury material in the Russia investigation, and yes, Trump's tax returns. The Joice Department is following the lead need of prior administrations in protecting the power of the executive

branch through that legal doctor known as executive privilege. Joining me is Harold Crent, a professor at the Chicago Kent College of Law. Also, executive privilege is a court made doctrine. Tell us how it came about? No mission of executive

privilege and the Constitution. Nonetheless, Presidents from George Washington on have felt the need to keep some information confidential, not to share it with Congress or the courts or interested in individuals, because you can't run a government unless you can have some kind of secret to some kind of promise of confidentiality to encourage candid discussions. So then there are no right lines as far as what should be

protected by executive privilege and what should not be. There are no bright lines, and courts at times have intervened and vague decisions, such as in the recent Trump tax case, to try to reconcile the rights of those interested. But most questions about confidentially out if communications are resolved outside of courts, and the presidents decide what to release, and Congress the size if it wants to make a stink and try to take some kind of action to encourage

or to incentivize the president to disclose more information. So these battles are hard. They've been in and out of court for centuries, and we don't know exactly where the lines are to be drawn. Was the Nixon case the first big executive privilege case or were there cases before that? The Nixon case case was the biggest case. It's the

Bellwether because they are. The Court clearly recognized the existence of the communications privilege within Article two of the Constitution, but held that, at least with respect to claims arising out of specific criminal cases, that the interest in trying to get information in the executive's hands was so important to the misery of justice that will outweighed the separation

of powers concerned expressed by the President. So now, I think a lot of people assume that when Joe Biden became president that all the documents that the Democrats were looking for from the Trump presidency would be turned over. But not. So. Let's start with the memo prepared by

the Office of Legal Counsel. Where does that stand? So, on the one hand, the two thousand nine Office of Legal Council memorandum should be an easy case because the Office of Legal Counsel is to give advice in the Department of Justice, so give advice to executive branch agencies as well as to the President on all sorts of legal issues that arise and confront the administration. But the problem here is that the memo was first of all relied upon by a trained general bar in deciding and

announcing why he would not prosecute President Trump. But it turns out a to Judge Amy Jackson that this oil C memorandum is really part of the public relations effort of the government, so it wasn't advice, so it wouldn't be covered by deliberative process privilege the way it ordinarily would be, because it was part of the far orchestration of trying to distance the administration from the Muller investigation.

So what would have ordinarily been covered by deliberative process privilege as advice in this case seems to be something else, seems to be result oriented, And therefore the question is why is the administration not willing to release it? Other than the fact that it might embarrass the Justice Department. It seems like a memorandum by the Office of Legal Counsel. Shouldn't it be something that everyone can read to know

where the department stands. Administration's consistently have held that it's up to the Office of Also whether to disclose these memoranda. Indeed, there's ongoing litigation under the Freedom of Information Act in many other contexts right now about whether or not the opposite lead Council has to disclose the advice It gives to various agencies, and the Executive Branch has taken the consistent position that most everything that the Office of Legal

Council does is advice. It's not binding, therefore it falls within the deliberative process privilege. And they have the fact Lee decided not to reveal certain amounts of OLC documents, of course, including the one about the Muller investigation itself.

But I think the real issue here is not whether it ordinarily would be part of the deliberative process privilege, but was this really a traditional OLC memorandum or is this something that was hatched up by Attorney General bar in order to paper over the very damning information in the Mullar report. And so now the Justice Department is appealing Judge Jackson's decision to the DC Circuit Court of Appeals. How important is this case in context? And I think

this may well make law. And the real questions was the motivation of the Biden administration and Merrick Island. Are they trying to preserve the tarnished image of the Department of Justice or is their advice in this memorandum that would routinely be protected by the deliberative process privilege? Let's

turn to Trump's taxes. During the campaign, Biden kept pressing Trump to release his taxes, and every president since Richard Nixon has voluntarily released his taxes, and yet the Biden administration is fighting to keep from giving Trump's taxes to the House. That sort of defies logic in my mind. I must confess, I agree with you on that one. I don't understand how Trump's taxes are subject to any

kind of recognized privilege. Obviously there's privacy issues involved with all of our taxes, but Congress can easily override that. And in fact, there's a statute which demands that anybody turn over the taxes is subject to a legitimate congressional inquiry. And so I think that it should have been a very straightforward issue about allowing Congress to look at those taxes, because it is the basis upon which future legislation may arise.

And of course, the Manhattan District Attorney already has Trump's tax returns for his investigation. Now, one issue that has been resolved after a two year battle, Former White House Counsel Don McGan testified to the House Judiciary Committee behind closed doors on Friday. Was there sort of a standoff in court, there was no final resolution of the question about what to do with McGann's testimony, but that led to finally a brokered agreement where McGann will be able

to testify about narrow issues before the House Committee. And it's a very complicated issue because personal McGee and was a former White House official, he wasn't currently in the office when he was being subpoenat. But clearly the information that the Congress was interested in getting had to do with his communications to the President about the Mueller investigation. So it became a centerpiece of potential obstruction because he was so termed in the room when all these various

actions by the President took place. So for him, clearly the presidential privilege would apply, but it could be overridden if it involved some kind of witness to criminal activity. And so that's why it became so contentious. And then the Biden administration again broker this compromised so that mcdan would be able to testify, but only with respect to the same matters that have been publicly disclosed. You look at this trying to assess who won the power struggle

between Congress and the president. It's the president with respect to McGann's testimony, And here I think it's easier to see the Biden administration's perspective. All presidential administrations try to preserve the confidentiality of White House Council. So President Biden is probably worried about any kind of precedent allowing a Congress to brake a former presidential council over the cold. That was the incentive for the president to be tough and Congress back down, and so this is a very

limited victory for Congress. Has the trend been for presidents to assert executive privilege more? Have recent presidents asserted it more than in the past. So I think there's a historical track record of many presidents invoking executive privilege. President Eisenhower, if I recall, invoted forty times, and that indeed it was under his administration where the term executive privilege was coined.

So this is not a new creation. But I do think the trend we see is that the courts, with the accept perhaps of the tax case, are more likely to override claims of privilege when they interfere with judicial fortunes than they do with congressional functions or its seemed to want to stay out of the fray and allow Congress in the presidence to hash out any differences themselves.

But when the courts are involved, or individuals claiming the need for information in the President's hand in order to try to vindicate an interest in the court system, then the courts have been brought in and are more willing

to second guess the invocation of privilege. So again, the court seemed to be more willing to investigate the limit of privilege when it's vital to resolve a court case, and they want to allow the two majoritarian branches, Congress and the President to fight through issues of access to information on their own. It seems that so far the Biden administration's position is executive privilege rules. They haven't been

willing to give over anything readily. That's correc and I think many people are surprised at the extent that they have defended presidential privilege. No one expected them to abandon presidential privilege. It's just the extent to which they are even protecting President Trump's interests has been surprising too many.

Thanks Hal. That's Harold Grant of the Chicago Kent College of Law, Johnson and Johnson will be writing a check for two point one billion dollars plus interest to twenty women who claim it's baby powder was tainted with cancer causing asbestos. That's because the Supreme Court refused to take Jay and Jay's appeal from a St. Louis jury's verdict. Joining me is Eric Gordon, a professor of business at the University of Michigan. Eric, the court rejected JA and

J without comment. Why do you think they left in place this staggering verdict? We can only guess as to why the Supreme Court declined to take the appeal, because the Supreme Court never gives its reasons. It just decided. But the Supreme Court can only take appeals in very narrow circumstances. They can't take an appeal just because they disagree with the verdict. There has to be a narrow

constitutional issue. The issues J and J raised were due process issues, and apparently the Supreme Court didn't think that the due process issues needed to be decided. So now two of the justices didn't participate. We don't know why, but Samuel Alito does own Stock and J and J and Brett Kavanaugh's father lobby J and J not to include a warning apparently on the baby powder. So could the fact that those two conservative justices didn't take part. Could that have been part of the reason why they

couldn't get four justices to take the case. That could be it because it leads only seven. So you go from needing four out of nine to needing four out of seven with two justices who might say, look, this is an important issue. This huge multibillion dollar punitive damage award against J and J. That's really an important due process question, where the more liberal justices might think, well, you know, it's just the big company paying money, we're

not so interested in it. It is a staggering amount, though. One of the interesting features is that each woman, no matter what she suffered, was awarded twenty five million dollars in competatory damages and then an equal share of about a billion six in punitive damages. So it's a lot of money per plaintiff. The judge in this case said that he found J and J's conduct particularly reprehensible, yet

J and J has won some of these cases. It's almost a prizing that there are juries that overlooked the conduct and apparently looked at the science that J and J. Was presenting because juries are usually pretty sympathetic in these cases. I think it's a miracle when J and J wins in front of a jury, because when you say cancer, and when you talk about women suffering with cancer, how do you get a juror to say, well, look, let's just let's look at this, let's look at the science.

You have a big company with a lot of money, you have women who have suffered horribly. To get a juror to focus just on causation, what's the science of causation as opposed to sort of the humanity of what's going on here, it's really hard. It's really really hard to do. Well. How did the appellate court handle the

due process issues that J and J. Raised? The appellate court, which was a state court Missouri State Court, said, well, look, all of these problems that J and J. Has brought up, the fact that twenty two different plaintiffs were in the same courtroom at the same time, the fact that jurors decided twenty two cases at once, the fact that the trial court took five hours to walk the jurors through the laws of a dozen different states as the jury instructions.

The Missouri State Court of Appeals said, well, we're going to assume that the jury followed the trial court's instructions, and following those instructions that came up with twenty five million dollars. Well, the Missouri Appeals Court made it what seems like a pretty big assumption that the jurors understood

instructions from twelve different states after five hours. What we don't know is if the Supreme Court justice has said, Okay, well, all right, we agree that the jury instructions are sufficient to cure any of these problems. It could just be that the Supreme Court thought, well, this case isn't interesting enough for us to take, because the Supreme Court takes very few cases. They take about three percent of the

cases that people pitch at them. J and J also argued that the punitive damages were so out of sync with the compensatory damages that it violated its due process rights. The compensatory damage award was sixty million dollars and the punitive damages were one point six billion dollars. What has the Supreme Court said on the subject. So, the Supreme Court has said it is a violation of due process too, to use the legal term get angry and sock it

to and come up with ridiculous punitive damages. Now, even the federal courts of appeal don't all agree with each other on just what they have to do based on the Supreme Court's decisions. There's a question about whether one of the main things the court said is actually the law or just dicta a comment on the law. So some of the federal courts of appeal have said, well, one to one a dollar of punitive damages for each

dollar of compensatory damages, is you more or less the limit. Interestingly, the Federal Court of Appeals that covers Missouri follows that if this case has been in federal court and this has gone to a federal court of appeals, those punitive damages probably would have been swatted down. But this is a state court case, and there are other federal courts of appeals at to say, we don't have to follow

that one to one thing exactly. We just have to look at the punitive damages and make sure they're not unreasonable. What J and J said was, look, Supreme Court, these punitive damages are ridiculous, and this is a good oper tunity for you to resolve this disagreement amongst the federal

courts of appeal, but the Supreme Court declined. J and J still faces about twenty six thousand similar cases, and its attorney argued that other plaintiffs could look at this case and use it as sort of a script for their cases. Is that a good argument, Well, it's something that the defense attorneys fear. They fear that the plaintiffs attorneys will say, Wow, this is what worked with that jury, so we will use it with our jury. I think

that the plaintiff's bar is pretty sophisticated. They do a lot of testing, They test their testimony in front of mock jurors, they hire psychologists. Yeah, this is a data point for the plaintiff's bar that the plaintiffs bar in these high stakes case they're really sophisticated. They will come at you with tested testimony, very well crafted testimony. With or without this case. What effect does this have on the J and J litigation going forward? I think it

does make settling harder. I think other courts will be less likely to allow that kind of punitive damages. I think other courts are going to be less likely to allow twenty two different plaintiffs from twelve different states to sue at the same time. So I don't think jan J is going to be up against the deck that's sort of shuffled quite the same way as it was

in Missouri. In future cases, do the punitive damages add up so that another jury can't give as much in punitive damages because they're cumulative to punish J and J. Every jury is free to assess punitive damages. You can't say, wait, we've already paid one point six billion dollar, there's com punitive damages, no more. Um It can be stacked one on top of the other. Uh and and that's a

real danger. The punitive damages can can add up. Even if the punitive damages are limited to sort of one for one the dollar per dollar with compensatory damages idea, you know, even at one to one, it doubles the compensatory damages. It basically says, all right, if you pay a million dollars in compensatory damages, your total bill is going to be two million dollars. So this is the end for J and J in this case. They have to pay up now. The next step in this case

is to write a check. There is no more avenue for appeal. So they're going to write a check. Uh, it's going to be more than the two point one billion dollars. They're going to pay a check. With interest, it will probably be more like two point four two point five billion dollars. Not a good day for J and J. Thanks for Vanna, Bloomberg Lass Show Eric. That's

Eric Gordon of the University of Michigan. Supreme Court Justice Neil Gorst rejected a request from two churches to block a Colorado law that lets the state issue emergency orders. Joining me is Bloomberg News Supreme Court reporter Greg Store. What were the two churches complaining about? What do they want from the Supreme Court? Originally, the two churches were complaining about COVID restrictions and capacity limits and distancing requirements

that Colorado was imposing on them. But by the time I get the case got to the Supreme Court, all those restrictions were gone. And so what they were asking the court to do was to block the disaster emergency law that Colorado was using to impose these restrictions, and that law also applies to things like, you know, earthquakes and wildfires. So it was a very broader request that these churches were making. Justice Neil Gorsuch handles emergencies from Colorado.

Explain how that works with the justice is handling you know, a section of the country. Yeah, each justice has one or more circuits parts of the country that they're responsible for Justice Course, which has the tenth circuit, which includes Colorado, and so any emergency request from their first go to him, and he then has the option of acting on himself or referring it to the full nine member court. In this particular case, he just acted on his own denied it.

It's theoretically possible the churches could now go to a different justice and ask for the same thing they're asking Justice courses war. But if it ain't at Justice Courses, his vote, it's it's it's pretty clear that the Court as a whole is not going to grant the request. So what does it indicate that he did not even refer it to the full court. Well, that sometimes can can indicate that it wasn't a very serious request and it wasn't worth the bother of sending it to to

all the other justices. In this case, though, if you read the tea leaves, it's a little less clear because this request, which was originally filed on May the third, and Justice Corsage gave the State of Colorado a fair amount of times to follow its response, and then he took a while to issue a decision that didn't include any explanations. So it seems likely that there were some some behind the scenes machinations going on. Uh he may have probably did talk to some of his colleagues about

how they were going to handle the case. We don't know that, but that the amount of time that elapsed suggests that something was going on. Explain how the Court has been handling these emergency appeals from churches during the pandemic well as a general matter, at least since Justice Barrett has joined the Court and gave the Court a

more solid conservative majority. As a general matter, they have been granting these requests from from churches, even with regard to restrictions that are no longer in place at the time of the request, and the Court is actually, in the minds of many experts, really banded religious rights in the process, even though these are emergency matters where they're not supposed to be making making new law. But the Court, in a series of decisions has essentially created what people

are calling a most Favored Nation status for churches. In other words, if there's any other entity that is not subject to similar restrictions and it is similarly situated, it can impose them on on churches. It's been a significant deal in terms of blocking states and local governments from imposing capacity requirements that affect churches as well as some, but not all, other entities. And did that start when Justice Amy Corney Barrett came to the Court. It did before,

back when Justice Ginsburg was still alive. Chief Justice Roberts had joined with the Court's liberals to allow COVID restrictions to go forward. There's an opinion where the Court said, we have to give them a lot of space, especially during an emergency situation like a pandemic, to impose the restrictions they think are warranted and not second guests states and local governments. And then once Jefficsparrick joined the Court,

that started to shift. And in some cases John Roberts from found himself in the minority, or at least by himself and not not wanting to go as far as some of his conservative colleagues. So we have certainly seen movement in this area towards more deference towards houses of worship since just Ae Sparit joined the court. So we're waiting now for all the decisions that we've been waiting for for quite a while. Is the only one involving religion, the Fulton County case where it's a question of gay

rights versus religious rights. Yeah, that's certainly the big one involving religion. It's a case where the City of Philadelphia has a foster care program and they use private organizations that helped run the foster care program at least certain parts of it. And and one thing that those groups do is screen out applicants people who want to be foster parents, and Catholic Social Services will not certify same

sex couples. If the same sex couple were to go to Tatholic Social Services and say we want to be approved as a foster family, Catholic Social Services would refer them elsewhere. And so the city is saying that violates our anti discrimination policy that we have here, and so Catholic Social Services cannot continue as one of our screening agencies. And that case does have the potential, like that's the

court to overturn a pretty significant precedence. It does have the potential to be a very big religious rights decision that would further bolster religious rights as or stand alongside this COVID decision as being a real turning point in this debate over the rights of churches and in this case, gay rights. Thanks Craig. That's Bloomberg News Supreme Court Reporter Greg's store, and that's it for this edition of the Bloomberg Launscha. Remember you can always at the latest legal

news on our Bloomberg Glow podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law. I'm June Grasso. Thanks so much for listening, and please turn into The Bloomberg Law Show every week night at ten pm Eastern right here on Bloomberg Radio.