Today, Explained - Trump v. Taxes

Episode Date: December 17, 2019

The Supreme Court will decide whether President Trump has to turn over his tax returns, but WNYC's Andrea Bernstein says the Court is really deciding whether Trump can literally get away with murder. (Transcript here.) Learn more about your ad choices. Visit podcastchoices.com/adchoices

Andrea Bernstein, co-host of the Trump Inc. podcast from WNYC and ProPublica. On Friday night, the Supreme Court announced it would hear not one, not two, but three cases on the president's tax returns. What are these three cases? So there are two cases that stem from congressional subpoenas that Trump sued so as not to have his tax returns turned over. And those are Trump v. Mazars and Trump v. Deutsche Bank. Yes. And the third case is the Manhattan District Attorney. And this case arises from an investigation into Trump's business that came

from the Stormy Daniels case. A piece of it got sent to the Manhattan DA. The Manhattan DA began investigating, requested Trump's tax returns, and at that point, Trump sued the DA. So that's the third case, Trump revants. And I guess this story begins during the 2016 campaign when candidate Trump breaks with tradition and refuses to release his tax returns. How rich is this tradition of sharing your financial information? Every president in modern history has released his tax return to the public. Remind us why. Because it's important for people to understand whether the president is acting in his or her own interests or in the country's interests.

The founders were so concerned about political corruption, and they felt that corruption could be as big a threat as a foreign army, that it could corrupt the democracy from within. So they put in all kinds of measures to bar political leaders from even the temptation of doing something wrong. And the release of the tax returns is in that tradition, that it's a check, it's a control on having somebody who might be acting for a personal interest and not for the country's interest. So what's the argument that President Trump makes in 2016 for not releasing them? He gives a bunch of reasons. He says, my business is so complicated, it's under audit. I'll release it after it's audited. But if I were finished with the audit, I would have an open mind to it. I would say that. But I don't want to do it during the audit. And really, no lawyer, even from the other side, they say often, not always, but when

you're under audit, you don't have, you don't subject it to that. You get it done and then you release it. And just to be clear here, candidate Clinton releases her tax returns and candidate Trump does not during the race. Correct. Then once he's elected president and hasn't released his tax returns, the argument is that, oh, well, the people voted for me. And so obviously they approve of my decision not to release my tax returns. So as president, he's got a Republican House, a Republican controlled Senate. Does the taxes issue kind of just go away for two years? Well, it kind of does because there's no one to

make him. We can now officially project that the Democrats will take control of the House. This is a very significant defeat for Mr. Trump, a historic accomplishment for the Democrats. Democrats getting subpoena power, the ability to investigate the president. And 2018 elections, Democrats take over in the House, and they make very clear that one of the things they want to do is oversight. So they start doing investigations. Round about the spring, three committees start filing subpoenas for President Trump's financial records from, in one case, his accountants and, in another case, his bankers. And they go to court, they request these subpoenas, and almost immediately Trump brings in a team of lawyers and says, no, you cannot have these because you don't have a valid inquiry. And also you are trying to provide a

law enforcement function, which you're not allowed to do. That's how two of the cases get to federal judges in New York and in the District of Columbia. And then once they're in those courts, they start working their way through, and Trump starts losing. He loses at the federal court level, he loses at the circuit level, and that's how the case gets to the Supreme Court. Okay, well, let's go through each of these cases one by one. There are two that originate from congressional investigations.

The first is Trump v. Mazars. What's the story there? So in this case, the House is trying to get Trump's tax returns from his accountants. And the accountants seemed inclined to cooperate until the Trump family business intervened and said that couldn't happen, that there were various problems, including what they argued was a separation of powers. And there was an argument in federal court, and Trump lost that case and lost it very quickly. And almost simultaneously, the same House lawyers and the same Trump lawyers were in a courtroom in New York arguing the Deutsche Bank case. OK, and this is the second case the Supreme Court will hear. What's the situation in the Trump v. Deutsche Bank case?

In this case, the House is looking at whether there was foreign influence in elections and whether there was some money laundering through banks and through business relationships that the Trumps might have had. So they're saying we need to see the records. And among the records it's seeking from Deutsche Bank are Trump's tax returns. Now, in the Deutsche Bank case, the judge said at the end of the oral arguments to the Trumps, you don't have a case. You are wrong. There is nothing that bars these records from being turned over. At which point the Trumps immediately appealed. So the decision in those two cases, those two congressional cases, they've really tracked each other. They've been very close. The rulings have been similar. First, there was a federal judge that said, no, you're wrong to the Trumps.

Then the district court said, no, you're wrong. So he loses the Deutsche Bank case at the district level and at the circuit level. And he loses the Mazars case at the district level and the Second Circuit level. And each time he loses these cases, these are not namby-pamby decisions. The judges are saying the president is not king. That was an actual line in a decision. Congressional inquiries are legitimate. So these are very strongly worded decisions. Okay, so two of these Supreme Court cases originated from the House, and they both tried to get the president's financial records in different ways, one going through the president's accountants and one going through his bank. What about the third case that originated with the Manhattan DA, Trump v. Vance. The third case is interesting because in the first two cases, Trump's lawyers argued

Congress is violating its constitutionally authorized powers because it is trying to do what a prosecutor would do. The Vance case is so interesting because it's in fact a prosecutor, so they cannot be making that argument. So they are making a different argument. And the argument that they are making is that a president has absolute immunity from investigation even, not even prosecution, just investigation, so long as he or she is a sitting president, which has enormous implications, which did come out in the arguments in the Second Circuit Court of Appeals when one of the judges asked Trump's lawyer, he said, what about the Fifth Avenue example?

And what he's talking about is the president's comment that he could shoot somebody on Fifth Avenue and no one would complain. What's your view on the Fifth Avenue example? Local authorities couldn't investigate, they couldn't do anything about it? I think once a president is removed from office, any local authority, this is not a permanent immunity. Well, I'm talking about while in office. No. Nothing could be done. That's your position. That is correct. And what the judge is saying is, are you saying if the president shot someone on Fifth Avenue, he would be immune from investigation?

And the Trump's lawyer's answer was yes, so long as he's a sitting president. Wow. I'm glad that's all settled. So does the president have this kind of immunity? That's what we're going to find out. So what's interesting about this case and what's a little confusing, because none of these decisions have been at all ambiguous and there is agreement. So there's agreement at the district level and there's agreement at the federal court level. And they're very, very strong. It's not necessarily the kind of thing that would go to the U.S. Supreme Court, because all of the judges, all of the judges who've looked at it, except for one dissenting judge in D.C., have is the Nixon case in which Nixon was ordered to turn over his infamous tapes. And that case keeps being cited, as does the Bill Clinton case in which he was also required to turn over records and submit to questioning from Congress.

Is that Clinton v. Jones? That is Clinton v. Jones. So when you go to these arguments, those are the cases they're talking to. And what they keep saying is, this is settled. The Supreme Court has ruled. They've said that Congress has a legitimate ability to do investigations. And in the case of the Manhattan DA, they've said there is just no precedent for a federal court judge telling a local DA he cannot so much as conduct an investigation because the consequences of that, I mean, if you think it through, what it means is you can eight years, many of these cases, if not all of them, many of these alleged or possible crimes would no longer be prosecutable because they would have exceeded the statute of limitations. Federal courts are all on the same page here, and the Supreme Court has already weighed in on these kinds of questions of presidential immunity with Nixon and Clinton. Why is it taking up these three cases in March? So I don't think we're going to know until we hear the arguments. But obviously, they wouldn't take it if there wasn't significant debate on the court and there wasn't somebody who was thinking, maybe Congress should not be allowed to do this. Maybe the DA should not be allowed to do this. And there may be five

justices on the Supreme Court who think Congress should not have the powers to investigate the president. So if the Supreme Court decides that there isn't, that you can't inquire a president for his, you know, tax returns, for his private banking information. What does that mean for presidents going forward? I think it means that there will certainly be future presidents who won't release that information. And it will be a blow to a half century's worth of transparency and disclosure rules

that were built in the wake of Watergate to prevent abuses of power. Let's just look at the case of President Trump and what we know about President Trump, which is each time he gets away with not disclosing information, he gets bolder the next time he's asked. So all I can imagine is that it would be even worse in terms of transparency, getting information, getting disclosure. We also know he's a very transactional president. It's not outside the realm of possibility that there is something on those tax returns that would tell the American people a story

about the interests acting on the president that they don't understand now. And how about if the Supreme Court rules with the lower courts in all three of these cases and they say, yes, Congress has a right to investigate. Yes, the Manhattan district attorney has a right to investigate. Will the president release his tax returns? Will he be compelled by the law to do so at long last? I mean, if the Supreme Court rules he has to turn over his tax returns or that his suits have no validity and the parties, in this case, Mazars and Deutsche Bank, have to turn over the tax returns, then they would have to be turned over. Now, that doesn't automatically mean they're publicly released, but I imagine they would become public at some point.

Something about the way the president conducts himself makes me feel like he'd find a way to circumvent releasing his tax returns, even if the Supreme Court said he had to? Well, the Supreme Court is the final authority. So that's, you know, he's pushing it as far as he can. And he has, you know, so far pushed on open door. He's getting his hearing. I mean, he's getting what he wants, even though there are rulings against him, even though he's losing in every court, he's managing to get stays and to delay any process of disclosure.

I'm going to keep pressing this question, Andrea, because I just do not have faith that he would care that the Supreme Court ruled against him. Do you think he could find a way to not release them and then be prosecuted for it once he was out of office potentially and then get pardoned for it eventually by a subsequent president? I don't know there are still some the point of my question is there are still scenarios in which he could not release them right you know i suppose so but we certainly have not hit such a point let's just let's just take let's just take a wager right now andrea bird's dad what do you say we live in strange times so there are many things that I think could never happen. I didn't think a lawyer for the president would stand up in a court and say the president could shoot somebody on Fifth Avenue and not be investigated for it so long as he's a sitting president. But that happened. However, I have no framework for understanding a Supreme Court decision that is not followed.

So we might have to use this word that we use all the time when we talk about Donald Trump on our podcast, which is unprecedented. We're so far beyond precedent here. And there is no mechanism in our democracy for a president to not heed the ruling of a Supreme Court case. So we'll have to see if he figures one out. I don't know what to tell you. Andrea Bernstein is one of the hosts of the Trump Inc. podcast. She's also the author of the forthcoming book, American Oligarchs, the Kushners, the Trumps, and the Marriage of Money and Power. It comes out in January.

The Supreme Court cases drop in March. I'm Sean Rotmusferum. This is Today Explained. is today explained.