TF 14: Do Overs and Cover Ups
Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist.
Harry Litman [00:00:29] This is a week that saw the Trump administration and the House of Representatives hunkered down in their respective positions, with the White House allied with the Department of Justice seemingly committed to preventing the Congress from securing any additional witnesses or testimony. We're going to discuss two aspects of the hardening standoff. First, we'll address the question whether and how the administration is engaged in what fairly could be called a cover up, as Speaker of the House Nancy Pelosi alleged this week, prompting the President to storm out of a meeting with the Democrats on infrastructure, and declare that he will not govern so long as he is under continuing investigation.
Harry Litman [00:01:15] Second, we will look at the Democrats prospects for advancing the investigation in the face of the administration's intransigence including their efforts to look to the federal courts and the state system. We're joined today by Feds across the country who are already well-known to listeners of this podcast, not to mention just about anyone with a television set. Together they bring deep and broad expertise about the courts, the Department of Justice and the Congress.
Harry Litman [00:01:47] First welcome back to Joyce Vance, former United States attorney and longtime assistant United States attorney for the Northern District of Alabama, who joins us from Birmingham, where she is the Distinguished Professor of the Practice of Law at the University of Alabama Culverhouse School of Law. Welcome back, Joyce.
Joyce Vance [00:02:08] Thanks for having me here.
Harry Litman [00:02:10] Matt Miller is also back. He is, as most everyone knows, the former director of the Office of Public Affairs for the Department of Justice and a current partner at Vianovo, a strategic advisory firm. And he brings to us a really deep command of the labyrinthine world of Capitol Hill and the House. Welcome back, Matt.
Matt Miller [00:02:32] Hi Harry. Thanks as always.
Harry Litman [00:02:33] And finally we're pleased to welcome Jennifer Rodgers again to the podcast. Jennifer served for many years in multiple roles at the United States Attorney's Office for the Southern District of New York, where among other positions, she was chief of the Organized Crime Unit and chief of the General Crimes Unit. That office of course has just roared back to reassert itself on the scene with an indictment of bank CEO Stephen Calk on charges of giving sweetheart loans to Paul Manafort, who desperately needed them as we already knew, in exchange for Manafort its help getting Calk a sweetheart job in the Trump administration. That indictment vividly reminds us that the offshoots of the Mueller investigation are very much still playing out. In fact, this particular indictment wasn't even one of the 14 or so cases that the Mueller probe referred. It was one independently developed by the Southern District. Welcome back, Jen. Were you surprised by the News of the Calk indictment from your former colleagues?
Jennifer Rodgers [00:03:39] Thanks Harry. Not really in the sense that I know they're still looking at things, I mean I didn't expect this one in particular. But you know, they're still busy, it's a big unit and they've still got a lot to do. So, it's good to see them still in action.
Harry Litman [00:03:53] That was a shoe waiting to drop and it's interesting that they didn't name Manafort in the indictment and you wonder exactly they must intend to prove the case without him. It'll be an interesting trial if it happens.
Harry Litman [00:04:07] OK. So let's jump in. The House Dems and the members of the Judiciary Committee and the White House are each hardening in their positions, which can be summarized by the sort of top line talking point of cover up from the Dems, and no do-overs from Team Trump. The DOJ turned over a few more documents but basically as things stand it's hard to see a genuine way forward particularly with the President locked in to this ongoing temper tantrum at the idea of being investigated. So, is there merit both substantive and tactical merit to both their positions? Only to one? Are they as entrenched as they appear? Matt, what are your thoughts about that?
Matt Miller [00:04:55] Look, I think they're pretty entrenched on a number of fronts. I think the administration kind of across the board doesn't want to turn over anything to the House. I mean, whether it is the Mueller investigation materials, whether it is the President's tax returns, whether it's allowing witnesses to come up and you hear about this, you know, if you spend any time on the Hill talking to Democrats, as I've done lately, you hear about this, uh, across all the Committees: the Agriculture Committee, the Housing Committee -- they're just kind of stonewalling everything. And I think the thing that happened this week though, that may change a little bit the administration's posture, are these two court rulings where they were ordered to turn over documents. And you saw a little bit of a change in DOJ caving somewhat and coming to a deal to give the House Intelligence Committee some of the underlying intelligence related documents from the Mueller investigation. And I suspect what happened -- Look, I'm, I remember being at DOJ when we were in some of these fights about what to turnover and there are career people that work there that have gone through these fights over and over, in, in different administrations and they know what's sustainable and what's not. And I suspect the career people looked at that first ruling, looked at the way the administration is stonewalling across the board, and said if we don't give something over to Congress, the House is going to march into court over and over again and point at our refusal to cooperate, and --
Harry Litman [00:06:11] So what?
Matt Miller [00:06:11] And, no, and we're going to lose and we're gonna lose everything. And so we need to, we, so we need to give something over and that doesn't mean they're going give everything over. But I saw that as a little bit of a green shoot that they may find there are places they need to compromise, so they can protect the things they really don't want to turn over, at least have a better argument to protect those things.
Harry Litman [00:06:28] Although you're suggesting, this is interesting, that sort of veterans who would be at the professional level are the the ones who are making the tactical calls we found out that the IRS, an IRS staffer, had written saying there is no justification for Mnuchin not turning over the tax returns, but they've still taken that position. Do we do we see this as coming from the top as it were? Or from the kind of career folks who have had, who are you know well accustomed to these battles?
Matt Miller [00:06:59] I think the decision comes from the top. But I suspect the career people are giving them advice and telling the Attorney General and his staff, "Look if you fight everywhere, the House's argument to judges is pretty easy, which is you need to not only side with the House and make them turn things over but you need to do it quickly because they're using the usual court process as a tactic to prevent anything from being turned over in the next year and a half. And we just need to show some accommodation somewhere." That would be, I suspect that's what's gone on and that's why you saw some documents go up to Intelligence. Really the first thing we've really seen out of the administration at all.
Harry Litman [00:07:35] Right.
Harry Litman [00:07:36] Well so I mean what about the general posture, so, Joyce, I know we have "cover up, cover up" "no do-overs, no do-overs" are both those positions meritorious? Are they just talking past each other? You know what, what do you see of the merits of the general rhetorical stance each side has adopted?
Joyce Vance [00:07:57] Well, I think the President's position is meritless. We've come to expect that. And what we're seeing here is an outgrowth of the way that Trump has fostered two different narratives about the facts. You know, it used to be in this country, I'm old enough to remember three networks network anchors, you might disagree with your neighbors about what the facts meant but you agreed upon a common set of facts, and now the President has created a false narrative a demonstrably false narrative, that he then uses to create this sort of alternative world where this is a do over of the Mueller Investigation. And of course we know it's not, right? We understand that there is an enormous difference constitutionally --
Harry Litman [00:08:39] Why isn't it? In what sense is it not a do over? We are, they do want to sort of go over some of the same ground, yes?
Joyce Vance [00:08:46] Well constitutionally, there is a big difference between a criminal investigation conducted to determine whether or not someone has committed a federal crime, which is what Mueller did. And congressional oversight or congressional investigation that might look into whether or not impeachment is warranted. That is a very different creature. And so for the President to suggest that the Mueller investigation could somehow substitute or fill in for Congress's role in the system, is to completely reject the notion that we have three co equal branches of government that act as checks and balances on each other. That I think is the central fallacy of Trump's position here.
Harry Litman [00:09:28] So but just to push on that a little so, Jan I mean that's true. You know Congress does want and have a entitled arguably to the information but it is also the case that you know what they were trying to get with McGahn in large part is what's already contained in the Mueller Report. Why are they so eager to actually have McGahn testify, Mueller testify etc. given that there is this turned over now report for anyone to look at?
Jennifer Rodgers [00:10:03] Well I think there are two reasons, generally speaking. One is fully legitimate and the other is less so. And the legitimate reason is they need, first of all, the underlying materials you don't just need Mueller's summary of what happened, you need the, what are called the FBI 302 reports that actually say "On such and such a date we sat down with Don McGahn and he said..." an kind of spells it all out. You know they are entitled constitutionally to do an investigation and so they need the evidence not just the report which is a summary of the evidence. So that part of it is is totally legit. The other piece of it is, I think that, because the public has not read the Mueller report and they don't really know what's in it all they know are the soundbites that they're hearing, many of which coming from the Attorney General and others have been highly misleading, to put it mildly. I think that some people in Congress feel that if there is testimony and it's public that people will pay attention to that and that they will learn what's in the report and it'll be more interesting and exciting and they'll just get more out of it if they're hearing the witnesses say it on TV, rather than trying to sit down with the dry report. That to me is less legitimate a reason to bring people in because of course the information is public and people could read it it's just that they don't have the attention span. So I think those are kind of the two, the two real reasons but one of them is is a good enough basis to get those witnesses in and that's why I think ultimately the House has the stronger legal argument here.
Harry Litman [00:11:30] Those are excellent points and let me push back a little in fact on the second, because this this happened to all of us as prosecutors, we had a, you know, case ready to prove with witnesses all prepped and the defendant would make the last minute gambit: "We'll stipulate. We'll stipulate to that, Your Honor." And I think our reflexive response and the right response was, "No, we get a chance to tell our story the way we want to tell it," and it's hard to see any alternative much less any nearly effective alternative to having, you know, Don McGahn under the lights raise his right hand and have the kind of testimony that at least Joyce and I remember from Watergate. You know, the "cancer on the Presidency" moment that riveted the nation, and short of something like that it is really hard to see how the Dems are able to break through and try to explain what the facts in the Mueller Report actually say.
Jennifer Rodgers [00:12:34] That's true, but that's almost like the difference between like if you had a bench trial versus a jury trial. Your point would carry the day in a jury trial. But if it's a bench trial the judge would say, "I'm fully capable of reading the record. I don't need to hear from the witness live." And it's the sort of the same thing I mean it's the House of Representatives that you're talking to here, not the public right, if it's really an impeachment proceeding.
Harry Litman [00:12:52] Now. That's kind of the issue right, in that in that analogy, it's good analogy, is the is the house the judge and the, and the people, you know, the jury? You know arguably in some sense both constitutionally and politically they are... Matt, you said you've actually this is intriguing, you've been on the Hill talking to folks, what's your understanding of why there is a real eagerness on the House's part to have the people in the chair and not settle for some kind of second hand presentation of the words on the page of the Mueller Report?
Matt Miller [00:13:29] Television. Television. Television. It is, it is all about informing the public. And I think I would disagree with Jennifer a little bit and that I don't see that as a less legitimate, you didn't say it was illegitimate, I don't see that as a less legitimate act for Congress just because they serve, that they perform a different function constitutionally than the Justice Department does. And their job is to gather this evidence both for legislative purposes, which is come up a lot in these court cases but also you know the judge recognized Congress hasn't informing function as well and they need to inform themselves and they can only really inform themselves by questioning these witnesses directly, getting to ask the questions they really care about, getting to judge their responses in real time but also to inform the public. And no, it's not the public that would ever vote on impeachment if there is impeachment, but there's always this question about how members of Congress are supposed to behave or are they supposed to vote on what they think is right or are they supposed to reflect their constituents wishes? And of course it's always a combination of both. And so I think for them to have a real --
Harry Litman [00:14:34] Let me stop you there. Do you do you think there is in fact, you're up there, is there substantial sentiment in important members of the Congress that this, you know this [is] a historic moment and we've got to do the right thing. It certainly seems like the Republicans are thinking only in the most craven political terms. Do you see the Dems as has thinking in only political terms or do you really have a sense of some idealism or constitutional duty that is animating them?
Matt Miller [00:15:04] Look it is both. There is a real split in the Democratic Caucus right now, and it is, by the way, it is, it's a little bit ironic, maybe that's not the right word, that a prosecutor has produced a report that basically shows the sitting President committed both crimes and impeachable offenses. And the party that's split over that issue is the opposition party, not the president's party. You would hope that it would be the other party, the Republican Party, but it's not. I think there's a real split in the Democratic caucus. Look I doubt you would find any Democrat who doesn't think that the Mueller Report shows clear evidence of impeachable offenses and that they ought to act on it. But then you have this question over what are the political consequences going to be? And there's a real disagreement over that and you have, you have kind of a couple you know a few different camps you have people that think the political consequences would hurt Democrats and so they shouldn't go forward. You have people that think the political, that there wouldn't be adverse political consequences and we ought to go forward. It's both the right thing to do politically and the politically smart thing to do. And then you have people that kind of fall in the category, I think you were describing, which is you know we either don't know what the political consequences are or we don't care, we have the constitutional duty to act here. And sorting out what happens, I think, is the problem right now. You know, Pelosi wanted to have these hearings and see if the country moved and then make a decision on impeachment. That's not really been possible because you can't hold hearings without witnesses so that's why you see this I think great consternation in this division inside the Democratic Caucus.
Harry Litman [00:16:29] Yeah, very good point. You know I'm no political expert but it does seem to me that one issue that, that maybe they're not fully taken account of is: if they're going to be investigating in any event, and it's so hard to imagine they're just closing up shop, if they investigate, but don't go further on calling it an impeachment inquiry et cetera, then they look to be sort of dithering or it's hard, you know, their seriousness of purpose can be called into question. Let's let's spend a few minutes on these court cases that you've both mentioned. Joyce, they were pretty darn emphatic, right? I mean it's a real total debunking and rejection of the White House's arguments on two district courts, one in D.C. and one in New York. Do you see them as likely to hold up, and do, and do you see them as running through the federal system quickly?
Joyce Vance [00:17:23] So they should hold up. The only thing remarkable about these subpoenas is apparently they ask for records relating to the President. A President who believes that he is above the law, because these are routine sorts of requests that are made by prosecutors, not necessarily by Congress, every day. And Congress makes these sorts of requests not infrequently. And so the only issue, to the extent, that there is any issue here is the President trying to suggest that somehow his financial records are different than anything else Congress might try to obtain by subpoena. So it's very unremarkable that the courts would enforce the subpoenas. We would expect given that the judiciary seems to really be stepping up to the plate here at least in these district court cases, that judges would have some interest in expediting these matters, you know, they could be slowed down. It's possible that an appellate court might decide to sit on one of these cases for a lengthy period of time, but that has not been their practice when the Mueller team had grand jury disputes. One would hope that here Congress would see that or rather the appellate courts would see that similar kind of urgency. There is no legal reason for these subpoenas not to be enforced. So I would expect that they will be.
Harry Litman [00:18:42] That makes sense to me especially you know the legal argument is that there is no valid legislative purpose. And as you say it's an unremarkable, both of them are unremarkable subpoenas, and now we have this interesting dynamic, which is if the D.C. Circuit say sits on it for a while. But the Second Circuit kicks into gear. Then you could have an affirmance. And it begins to seem like the argument, all in all, is a lousy one.
Harry Litman [00:19:12] Jan, any thoughts what this might augur for the the tax dispute? Because this is pretty close isn't it? To what Mnuchin was, is arguing and trying to say he doesn't have to give over the tax information to House Ways and Means, basically there's no valid legislative purpose here.
Jennifer Rodgers [00:19:30] It's the same argument as to why he doesn't have to hand it over. But in the tax case there's a very specific statute exactly on point, that says, "You have to hand this over." And so you know it's very hard for him, even tougher I think is a legal argument to make than arguing against the subpoenas, where there isn't a specific statute you know exactly on point. So I think it is a tough road for him. Only made tougher by the leaking of an internal memo by career lawyers saying you know you don't have any basis to withhold this. So it'll it'll be interesting to see how they navigate that. But you know his orders from the top are to continue fighting so we can only assume they will. And then you know the other interesting wrinkle is New York has just passed this law that, that they can hand over state tax returns to congressional committees on request. And so now the congressional committees are going to have to decide whether or not they want to ask for those New York state tax returns. And if they do you know we'll wait for a legal challenge on that. So that may obviate some of the need for the federal tax returns. It gets very interesting now there's some strategic decisions that the Dems will have to make on the tax return front.
ALL [00:20:48] [CROSS TALK]
Harry Litman [00:20:51] OK. Feds, Feds jumping in, a Feds cacophony. Matt?
Matt Miller [00:20:55] I was just gonna say I bet the congressional committees make that decision pretty quickly and then move forward.
Joyce Vance [00:21:04] Harry, something that you and I talked about yesterday is that this argument by the government borders on being bad faith the statute is very clear. It says that they shall be turned over to the Chairman of Ways and Means. The government is pretty far out on a limb trying to litigate this one. And I would expect they might get a spanking if they draw the wrong judge.
Harry Litman [00:21:25] That's a great point. And there is a rule that gives the paddle to the federal courts, Rule 11 and you know it could be considered, "This is a frivolous argument." And what a black eye that would be.
Joyce Vance [00:21:36] You know it's very rarely used but that might happen here.
Harry Litman [00:21:40] And then at least a litigant could invoke it and put them on the defensive. What about the McGahn testimony and the order you know in the past they've just been rattling sabers and saying, "We might assert immunity here." The President ordered McGahn not to show up, not as opposed to, don't talk about this or that just don't show up and asserted a so-called "testimonial immunity." What are the prospects for that being resolved quickly to the side of the, of the Dems or is that, are we in for a longer slog there?
Joyce Vance [00:22:15] So you know here there are some issues that need to be litigated but I think it's helpful to go a little bit legal nerdy here and talked about why immunity exists. It exists so that in this sort of area so that government employees doing their jobs, acting within the line and scope of their duty, don't have to constantly worry and second guess themselves out of fear that they might be sued or subject to something along those lines. You know, this is sort of a cousin I guess to executive privilege. This notion that a president has the right to clear headed advice from his advisers and that they too should not fear that they might have to testify about it or have it disclosed later on. But here, because I think that there are technical flaws with the executive privilege argument, the government is trying to use immunity to keep McGahn from testifying. And it should be an unavailing argument for the very simple reason that Congress seeks testimony about illegal conduct. And so this is akin to this notion of a crime fraud exception to the Fifth Amendment. The President should not be able to hide behind immunity, privilege, any variant of those sorts of shields, in an effort to hide criminal conduct. Congress is entitled to hear this testimony.
Harry Litman [00:23:35] Jen, you agree?
Jennifer Rodgers [00:23:37] I do. It's just that, you know, unlike the fighting of the subpoenas and litigation over subpoenas, this gets a little more personal if you will because they're talking about holding someone in contempt, and then having to go to court to enforce their request for him, and threatening to put him in jail, and fine him personally, and so it just seems to me like they are taking it a little bit more slowly,q a little bit more carefully than they are these subpoena matters and I don't know if they'll continue to do that. But it strikes me that there is a difference at least in the minds of some on the hill with you know personal appearance and testimony by a person, Don McGahn, versus these records that are you know out there and are a little bit more, I don't know, less human. And so therefore somehow easier to to fight hard about.
Harry Litman [00:24:27] Yeah, that's a really good point. OK, I think we have to stop for now. But this is one tug of war that is not going to be resolved in short order. It's time to take a moment to explain some of the terms and relationships that you hear about in this podcast in a segment that we call Sidebar.
Harry Litman [00:24:51] Today's Sidebar addresses when, and in what circumstances, the President can fire executive branch officials. And the explanation comes from a perfect source. Richard Cordray, who was the first head of the Consumer Financial Protection Bureau. A position in which he remained after President Trump took office. Where he was a burr in the saddle of both Trump and congressional Republicans who were eager to replace him. Rich also has served as the Attorney General of Ohio, the State Treasurer of Ohio, and many positions in the state government and Franklin County.
Richard Cordray [00:25:37] When can the President fire executive branch officials? The President's power to fire an executive branch official varies depending on the category of official. There are four relevant categories: principal officers, inferior officers, executive employees, and independent agency officials. The boundaries of these categories can be fuzzy. The Constitution itself refers to principle and inferior officers. Principal officers such as cabinet secretaries must be nominated by the President and confirmed by the Senate. They serve at the pleasure of the president, who can fire them for any reason, or no reason including disagreements about policy. The President's ability to control principal officers is thought to be part of the executive power that the Constitution vests in the President. Inferior officers such as Deputy Secretaries may be appointed by the president alone by the courts or by department heads. They usually serve at the pleasure of the President. But in some circumstances the courts have limited the President's power to fire them. Under the special counsel regulations, for example, the President may only remove the special counsel for good cause. Most executive officials are not officers at all but simply are employees. They are protected under civil service laws and usually may be fired only for good cause. And with adequate procedural safeguards. The Supreme Court has held that Congress may create independent agencies to perform quasi legislative or judicial functions. Congress may provide job protections to these agency heads that protect them from being fired by the president except for a showing of good cause. Congress has created a number of these independent agencies including the Federal Reserve Board and the agency I used to run the Consumer Financial Protection Bureau. For Talking Feds, I'm Richard Cordray.
Harry Litman [00:27:38] Thanks very much to Richard Cordray for that explanation of a very important concept in the Trump administration and the Mueller Report. Rich is currently writing a book on his battles in Washington, that will be a must read for students of the early years of the Trump administration.
Harry Litman [00:27:59] So we've talked about these court cases, let's return to those in a in a moment, but first anyone have a sense if McGahn is now closed off, are there witnesses important useful witnesses who are likely to both be summoned and actually appear? Who might the country be seeing on TV if not McGahn? Matt, do you have a sense of where they might be able to go.
Matt Miller [00:28:27] So, if I were them I would be looking...
Harry Litman [00:28:29] Them, being the Dems, right?
Matt Miller [00:28:32] The Dems. Yeah, if I were, yeah if I were the Dems I would be looking at witnesses who have never served in the administration. And so who don't have the same executive privilege claims or who, over whom, the President can't make the same executive privilege claims that he's making over people from inside the administration. So, I would look at people like Corey Lewandowski, who is a key witness in the obstruction of justice part of the report. He's the person who, you know, the President's former campaign manager, who the President directed to try to get Sessions to un-recuse himself. I might bring Lewandowski up to, to, to a committee. And then I would think about some people like, you know, maybe Mike Flynn or Rick Gates. Look, Mike Flynn is, has pleaded guilty. He hasn't been sentenced yet but the government has said his cooperation is finished. Rick Gate's cooperation is not finished. But you could see how you would bring him up and ask him about aspects of the investigations where he's no longer being used by the government.
Harry Litman [00:29:24] Wouldn't his cooperation agreement require him to be cooperative with Congress or would that that have been a silent, not be mentioned, in the in the agreement. Do you think?
Jennifer Rodgers [00:29:35] So. The agreement says that you have to appear and testify whenever the prosecutors tell you to, basically. So, you know it doesn't usually come up that Congress will ask for the testimony of one of your cooperators. If the office agrees that you should go and testify in front of Congress then you would have to do that. The problem is with someone like Rick Gates who continues to cooperate in a matter that is ongoing namely at least as far as we know the inauguration committee investigation, they are likely to say that they don't want him to testify or at least to limit his testimony.
Harry Litman [00:30:07] Would whether Flynn have to cooperate be ultimately a decision for William P. Barr Jr. Joyce, any sense?
Joyce Vance [00:30:15] You know, interesting question. I think technically, yes. That begs this entire question of course of whether Barr should continue to play any role in these cases Barr believes he should. That I think is an astonishing position for him to take. Given everything that has transpired and if it came to light that he was keeping witnesses from appearing I think that there might be, a reckoning for that. But the prospect of Flynn testifying on Capitol Hill is an interesting one it's not entirely without risk. Like so many of these quote unquote "cooperators" that Mueller had, most of them appear to have retained at least one foot in the Trump campaign with, you know, Flynn sending out DM's and e-mails trying to continue to curry favor in the Trump camp even after he was cooperating.
Matt Miller [00:31:06] Congress doesn't have to respect the Justice Department's opinion about whether their cooperators can come testify or not. They usually do in most cases because you know there's this famous, you know, the famous Iran-Contra case where by granting immunity to someone they hurt a prosecution. But they don't have to. And if Barr is directing these witnesses not to come cooperate, that, that doesn't absolve the witness of the responsibility that they bear if they get a subpoena from Congress. Now Congress ought to be responsible. I think it would be completely irresponsible to ask Gates about the inaugural committee investigation and other things of which he's still cooperating. But if they really want to play hardball they can subpoena him up and ask him about all sorts of other things that are not the subject of of cooperation. And he has to comply with that or, you know, they can go to court and try to avail themselves of the options they have. And he doesn't have the same defenses against contempt prosecution that someone inside the executive branch has.
[00:31:58] Well that's true, although, think of it when they do go to court a little bit like McGahn. When McGahn goes to court he's going to be able to say you know the president ordered me here and if one goes to court at least the atmospherics, it'll be he says you know, I'm between a rock and a hard place, it's harder to hold him to contempt. But I do I take your point. Jan, I wanted to double back with you I don't know if you have, it's murky I think to all of us who have ever paid taxes, so this state statute that requires if Congress asked to provide the New York state tax returns, what sort of information is it likely to give about the federal tax returns with a complicated taxpayer like Trump. Is that going to be a real wealth of information that the IRS has or will it be pretty much marginal?
Jennifer Rodgers [00:32:51] So it's it's a little bit of both. I mean on your New York state tax returns you do list your income taken from the federal tax returns and you list the sources of income, which is kind of the key thing, right? I think that everyone wants to get out here as the President's sources of income. But you don't get all of the detail and all of the underlying information and the schedules which you attach to your tax returns where you really kind of go into the weeds. So, you know, for example you list your federal sources of income but you don't include your W-2's that you typically get from an employer. You just put the information from the W-2's on the New York state return. So the answer is: they certainly will give some information. I would think that would be helpful information to any investigators trying to get at the bottom of where the President gets his money. But it's not as complete and comprehensive as the information that the federal government gets with the federal tax returns.
Harry Litman [00:33:49] Got it. Let's just think about it though. So, in general we have a number of apparent inroads into Trump's financial information. We have the possibility that the IRS action, the Mnuchin attempt to withhold taxes, falls to the same argument. We have the two cases both involving financial subpoenas. Now we have the New York statute so we'd have like an appreciable prospect of getting real information about Trump's financial dealings and mis-dealings even before he was president. Now, that's the famous red line that he drew before. My question, Matt, for you in the first instance is what kind of leverage is that? Let's say he's able to keep obstruction and conspiracy sort of off the table. But do we think that if the Dems can really come forward with a wealth of information about his financial dealings, that that it really puts him in in a vise or you think that's something he just can shrug off?
Matt Miller [00:34:57] You know, I think this is probably more of a political problem for him than it is anything else. He doesn't really get to decide what the red lines are. Congress can pursue its investigations and it seems like a judge, you know, judges in all of these cases are going to are going to decide since the Treasury Department flagrantly flouting the law. I think the interesting thing that occurred to me this week that hadn't before, you know, from a political perspective, I'm not sure that the Ways and Means Committee getting his tax returns from the IRS was going to be all that interesting because they're not, in that instance, they're supposed to keep those private and not release them to the public. There's no provision that says if they get them from Trump's accounting firm that they're required to treat them confidentially in the same way. Same with if they're able to get his New York state tax returns because this new, new law that's passed. So, I think if they, you know, if they're able to get those returns in either event they would be able to use them to pursue other investigations into potential money laundering or whether you know that some of his moneys come from Russia, how much of it come from Russia. But, I think you know, if they get them from one of these these you know outlets other than the IRS, the ability to release them publicly and get the kind of stories like The New York Times series on his taxes which showed in some instances he paid very little taxes in some instances he lost lots of money and in some instances he and his family seem to have cheated the IRS, I think it could be a massive massive political problem for him.
Harry Litman [00:36:21] Yeah, but, but also sort of as you point out, I mean... Look a prosecutor's first step often is to get the tax returns but you need other kinds of information, witnesses, to sort of put it together. I mean, Jan, what would be your sense? If we just if we had all the tax returns but didn't have, you know, what those sorts of tools, if the Congress doesn't have the sorts of tools that Mueller has... It's going to be a challenge, is it not, to put together even as a narrative, the possible fraud or malfeasance actions that the papers kind of contain, if you dig deep.
Jennifer Rodgers [00:37:01] Yeah that's true. I mean, it's always been a problem for congressional investigations, at least in my kind of prosecutor biased mind, that they don't have the same tools and the the same folks who can do the kind of deep investigation that you need. Now, on the other hand we do know that Congress has really staffed up with some good, solid investigators and former prosecutors, so, maybe they'll be better suited to doing that than usual. But you're right. I mean, obviously you get the tax returns it doesn't mean a whole heck of a lot. You know you'll get the name of the holding company, right, or the name of a partnership that provides income and then it's a matter of digging to figure out exactly what that is and dig into what these transactions were and whether they were illegal, so, there's a lot of work to do. Congress isn't usually great at that. But you know, hopefully they'll have some people who can dig into it and see what's there.
Harry Litman [00:37:49] Yeah, I mean presumably the bodies will be buried kind of deep. OK. Well, so last word on this, too. Joyce, what do you think? Are we in fact going to be seeing, will the public be seeing Trump's financial information in short order?
Joyce Vance [00:38:05] I think it's very unlikely. You know we've alluded to the fact that tax records are very carefully protected during any sort of investigative process. I don't see any reason that he should be treated differently here. Seems likely to me that some of the information in those forms could be used for public questioning and we could learn about it that way, that's assuming that Secretary Mnuchin ever gets right with the lawn, and, and hands those tax returns over. But, I have to say you know I'm struggling with this one because as a prosecutor the notion of protecting tax returns is so deeply inculcated that it makes me uncomfortable to think about an individual's privacy being violated in this way, unless we're in, for instance, the trial phase of proceedings where that information could properly be used.
Matt Miller [00:38:59] I don't share your qualms about that Joyce.
Joyce Vance [00:39:05] Well of course you don't.
Harry Litman [00:39:05] Which Judge will Trump draw. Judge Vance, or Judge Miller. It's time for our final segment "5 Words or Fewer," where we take a question from a listener and each of the Feds has to answer in five words or fewer. Our question today comes from Joe Richardson of Wexford, Pennsylvania, who asks: "If the Senate Republicans are content to sit on their collective hands, who can stop obstruction? It seems that any action taken by the House, whether it be impeachment, imprisonment or fines, can essentially be overridden either by indifference in the Senate or Presidential pardon. What is the check or balance for this situation. Jan, you want to take a first shot at this "5 Words or Fewer?".
Jennifer Rodgers [00:39:54] 2020, election let's vote.
Harry Litman [00:39:57] Joyce.
Joyce Vance [00:39:58] Jen stole mine I've got it in three words: Vote in 2020.
Harry Litman [00:40:03] And Matt.
Matt Miller [00:40:04] The same: voters, it's always voters.
Harry Litman [00:40:08] Now, you know, I'm a nerd. I'm going with: unclear, possible constitutional flaw.
Harry Litman [00:40:16] Thank you very much to Joyce, Matt, and Jan, and thank you very much listeners for tuning in to Talking Feds.
Harry Litman [00:40:24] I wanted to let you know about a very exciting special episode that will be coming up next. The topic will be "high crimes and misdemeanors." And it will be a discussion with probably the most distinguished legal minds in the country. Professor Larry Tribe of Harvard, and Professor and Dean Erwin Chemerinsky of Berkeley, as anybody who knows constitutional law can attest, the Tribe and Chemerinsky books on constitutional law are, without question, the two most important constitutional law sources. And Chemerinsky and Tribe are without peer in their constitutional scholarship. They will be joined in turn by Professor, but also Congressman, Jamie Raskin who combines phenomenal scholarship with now membership on the House Judiciary Committee, and a, not front row, not just position, but participation in the whole impeachment drama. So those three, and I'll try my best to bring up the rear. We'll be having a discussion about high crimes and misdemeanors, that I think will be invaluable, exciting, and probably an important source for months to come. So you definitely will want to tune in and catch that.
Harry Litman [00:42:04] So, if there's anyone you haven't told about Talking Feds who would enjoy the podcast, now's the time. They can subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a minute to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds related content. And you can also check us out on the web at TalkingFeds.com where we have full episode transcripts. Submit your questions to email@example.com, whether it's for "5 Words or Fewer," or general questions about the inner workings of the legal system for our Sidebar segments.
Harry Litman [00:42:53] Thanks very much for tuning in. And don't worry as long as you need answers the Feds will keep talking.
Harry Litman [00:43:05] Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos,and Rebecca Lopatin. David Lieberman is our contributing writer, production assistance by Sarah Philipoom. Transcripts by Kassandra Sundt and Elly Kalfus. Thanks to Cary Fujikawa and the RadioArt Studio in New York for recording this podcast. Special thanks to Richard Cordray for today's Sidebar segment. And thanks as always to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC.
Harry Litman [00:43:50] I'm Harry Litman. See you next time.