--:-- Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.
--:-- Andrea Bernstein: Thanks for having me on the show.
--:-- Sean Rameswaram: Today, we're talking about the Supreme Court's decision to hear three cases related to President Trump's tax returns. Andrea Bernstein is a co-host of the Trump Inc. podcast from WNYC and ProPublica. Andrea, can you explain what these three cases are?
--:-- Andrea Bernstein: So, there are two cases that stem from congressional subpoenas that Trump sued to avoid having his tax returns turned over. Those are Trump v. Mazars and Trump v. Deutsche Bank. And the third case is the Manhattan district attorney's investigation into Trump's business, which arose from the Stormy Daniels case.
--:-- Sean Rameswaram: And this story begins during the 2016 campaign when candidate Trump breaks with tradition and refuses to release his tax returns.
--:-- Andrea Bernstein: Every president in modern history has released their tax return to the public. It's a tradition that's been in place for decades, and it's an important check on whether the president is acting in their own interests or in the country's interests.
--:-- Sean Rameswaram: The founders were so concerned about political corruption that they put in measures to bar political leaders from even the temptation of doing something wrong. And the release of tax returns is part of that tradition.
--:-- Andrea Bernstein: That's right. The release of tax returns is a way to ensure that the president is not using their power for personal gain. And President Trump's refusal to release his tax returns has been a major point of contention throughout his presidency.
--:-- Sean Rameswaram: So, what's the argument that President Trump makes in 2016 for not releasing his tax returns?
--:-- Andrea Bernstein: He gives a bunch of reasons, including that his business is complicated, it's under audit, and he'll release it after it's audited. But if he were finished with the audit, he would have an open mind to it. He would say that. But he doesn't want to do it during the audit.
--:-- Sean Rameswaram: Just to be clear, candidate Clinton releases her tax returns, and candidate Trump does not during the race.
--:-- Andrea Bernstein: That's right. And 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.
--:-- Sean Rameswaram: So, as president, he's got a Republican House, a Republican-controlled Senate. Does the tax issue kind of just go away for two years?
--:-- Andrea Bernstein: Well, it kind of does because there's no one to make him. But we can now officially project that the Democrats will take control of the House, which is a very significant defeat for Mr. Trump.
--:-- Sean Rameswaram: Democrats getting subpoena power, the ability to investigate the president. And in 2018 elections, Democrats take over in the House and make very clear that one of the things they want to do is oversight.
--:-- Andrea Bernstein: So, they start doing investigations. Round about the spring, three committees start filing subpoenas for President Trump's financial records from his accountants and his bankers.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: What's the story there?
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: And there was an argument in federal court, and Trump lost that case and lost it very quickly.
--:-- Andrea Bernstein: And almost simultaneously, the same House lawyers and the same Trump lawyers were in a courtroom in New York arguing the Deutsche Bank case.
--:-- Sean Rameswaram: What's the situation in the Trump v. Deutsche Bank case?
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: So, they're saying we need to see the records. And among the records they're seeking from Deutsche Bank are Trump's tax returns.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: At which point the Trumps immediately appealed.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: And he loses the Mazar's 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. Congressional inquiries are legitimate.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: What about the third case that originated with the Manhattan DA, Trump v. Vance?
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: So, 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.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: Which has enormous implications. And it did come out in the arguments in the Second Circuit Court of Appeals when one of the judges asked Trump lawyer, "What about the Fifth Avenue example?"
--:-- Sean Rameswaram: What's the Fifth Avenue example?
--:-- Andrea Bernstein: Local authorities couldn't investigate. They couldn't do anything about it.
--:-- Sean Rameswaram: I think once a president is removed from office, any local authority. This is not a permanent immunity.
--:-- Andrea Bernstein: Well, I'm talking about while in office. No. Nothing could be done. That's your position.
--:-- Sean Rameswaram: 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?
--:-- Andrea Bernstein: And the Trump's lawyer's answer was yes, so long as he's a sitting president.
--:-- Sean Rameswaram: Wow. I'm glad that's all settled.
--:-- Andrea Bernstein: So, does the president have this kind of immunity? That's what we're going to find out.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: 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 said the president does not have these kind of powers.
--:-- Sean Rameswaram: Congress is allowed to do investigations. And one of the cases that has come up a lot is the Nixon case, in which Nixon was ordered to turn over his infamous tapes.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: Is that Clinton v. Jones?
--:-- Andrea Bernstein: That is Clinton v. Jones.
--:-- Sean Rameswaram: So, when you go to these arguments, those are the cases they're talking to.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: Because the consequences of that, I mean, if you think it through, what it means is you can never prosecute a president for anything that he does while he's president.
--:-- Sean Rameswaram: And in many cases, as the DA pointed out in his arguments, there are statutes of limitations, which means that, for example, if Trump were to be reelected and were to serve 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.
--:-- Andrea Bernstein: If the 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?
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: And there may be five justices on the Supreme Court who think Congress should not have the powers to investigate the president.
--:-- Andrea Bernstein: So, if the Supreme Court decides that there isn't, that you can't inquire a president for his tax returns, for his private banking information, what does that mean for presidents going forward?
--:-- Sean Rameswaram: I think it means that there will certainly be future presidents who won't release that information.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: 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 asks.
--:-- Andrea Bernstein: So, all I can imagine is that it would be even worse in terms of transparency, getting information, getting disclosure.
--:-- Sean Rameswaram: We also know he's a very transactional president. It's not outside their 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.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: Will the president release his tax returns? Will he be compelled by the law to do so at long last?
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: Now, that doesn't automatically mean they're publicly released, but I imagine they would become public at some point.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: Well, the Supreme Court is the final authority. So, that's, you know, he's pushing it as far as he can.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: 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?
--:-- Sean Rameswaram: I don't know. The point of my question is there are still scenarios in which he could not release them, right?
--:-- Andrea Bernstein: You know, I suppose so, but we certainly have not hit such a point.
--:-- Sean Rameswaram: Let's just take a wager right now, Andrea Bernstein. What do you say?
--:-- Andrea Bernstein: We live in strange times, so there are many things that I think could never happen.
--:-- Sean Rameswaram: 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.
--:-- Andrea Bernstein: But that happened.
--:-- Sean Rameswaram: However, I have no framework for understanding a Supreme Court decision that is not followed.
--:-- Andrea Bernstein: 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.
--:-- Sean Rameswaram: We're so far beyond precedent here.
--:-- Andrea Bernstein: And there is no mechanism in our democracy for a president to not heed the ruling of a Supreme Court case.
--:-- Sean Rameswaram: So, we'll have to see if he figures one out.
--:-- Andrea Bernstein: I don't know what to tell you.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: I'm Sean Rameswaram from Today Explained. Bye.
