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Supreme Court Sends Trump Tax Cases Back to Lower Courts; Live Analysis of Implications of Court Decisions. Aired 10:30-11a ET

Aired July 09, 2020 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: The opinion by Chief Justice Roberts, joined by seven justices -- which is unusual in this highly polarized court --

POPPY HARLOW, CNN ANCHOR: Right.

TOOBIN: -- everyone except Thomas and Alito -- says we need to look really carefully to see whether the president's prerogatives and executive power under Article II of the Constitution is being violated. So we're sending this back to the district court for a further evaluation of that question. That evaluation is certainly going to take past November. It's just too long and too complicated, judges are too slow.

This case, if it had been resolved completely in the House of Representatives' favor, really could have resulted in the disclosure of the Trump financial records before November.

But even though the president lost on the legal issue, he has clearly won on his ability to run for re-election without disclosing his tax returns to the public. that issue, I think, is settled today.

HARLOW: Ross Garber, I'm reminded of Justice Breyer during oral arguments, bringing up the big picture here because we're talking about the president here, but this is a big-picture question about the separation of powers and what is to come for many presidents and congresses to come.

And Breyer said, "What I hold today will also apply to a future senator" -- McCarthy, right? Hearkening back -- "asking a future Franklin Roosevelt or Harry Truman." That's, you know, the big picture of what they're looking at here.

ROSS GARBER, POLITICAL INVESTIGATIONS AND IMPEACHMENT LAW TEACHER, TULANE LAW SCHOOL: Yes. And so if I'm the president or his lawyers, I'm actually pretty happy. I'm actually very happy with these results today because, you know, unlike the previous Supreme Court cases that dealt with demands for presidential records -- which were decided unanimously and decided in a way that compelled the president to turn over records, in these two cases, the court actually does recognize, you know, some upper limits in terms of presidential document demands. And with respect to Congress, you know, this case is going to go back

down to the lower courts and be litigated. Again, same thing with the New York D.A. case. And so this was sort of a rough decision for Congress because, you know, sort of stripping it all away and getting to the reality of it, what this case was about was whether Congress and how Congress can investigate the president.

And what this case did was put up significant potential hurdles for Congress in getting information from the president and suggesting kind of a long, drawn-out, complex litigation path.

HARLOW: And to be clear, Jeffrey Toobin, to Ross' point, they are potential future hurdles for Congress, right? This isn't -- this isn't done yet, meaning the precedent here is not yet set. Is that right?

TOOBIN: That's basically right. I mean the -- what's really not resolved is whether Congress gets these documents --

HARLOW: Sure.

TOOBIN: -- that seems to me an even more open question today than it was before this decision comes out. The chief justice's opinion lays out certain factors for the district court to continue to consider. They -- you know, the court clearly does reject the idea that the president is absolutely immune, and that his personal information can never be disclosed. That argument has been rejected.

But the idea that the president has special rights and prerogatives that have to be respected by the courts? That is very much reinforced by this decision. And so I think the president has the legitimate chance in the district court and in the court of appeals, of winning this case and keeping these documents secret from Congress. I think he has a much less of a chance of keeping the documents away from the New York City district attorney.

GARBER: Hey, Poppy, one other thing I want to --

HARLOW: Jeffrey and Ross -- Ross, just hold on one second, I promise I'll get back to you --

GARBER: OK, sure.

HARLOW: -- but I do want to get to our Joan Biskupic, another expert on the Supreme Court. And specifically, Joan, on the chief justice here, if you could weigh in on what you made of the Roberts opinion, but also on the breakdown of the justices here on both cases?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Yes, I think it says a lot, Poppy, that President Trump's two appointees -- Neil Gorsuch and Brett Kavanaugh -- signed the opinions, joined the opinions and the judgment that buys President Trump lots of time in these cases.

There -- in the Vance case, there are other grounds that he can raise beyond temporary immunity grounds that he had raised below. And in the House case, the chief justice laid out lots of hurdles and said, you know, separation of powers was not taken account of by the House or the lower court, and said you have to think about the burdens on the presidency.

So I think the sheer vote that the chief was able to obtain here tells you something about the limits of both of these opinions. Both of these opinions recalled U.S. v. Nixon and Clinton v. Jones --

[10:35:11]

HARLOW: Yes.

BISKUPIC: -- landmarks on presidential power. Both of those cases were decided by unanimous courts, and Chief Justice John Roberts wanted to get as close to that as possible. And the way he did it was to go fairly narrow in terms of the practical consequences at this point, laid down some markers but they will be ironed out below.

HARLOW: Yes. That -- I'm so glad you bring up that point because, again, just to reiterate, the decision in Nixon that led -- you know, led to his resignation and the decision in Clinton v. Jones that led to his impeachment, both unanimous, right? So justices --

BISKUPIC: That's right.

HARLOW: -- that they had appointed went against both of those presidents.

Here, you had the same happen, not unanimous but not a 5-4, right? Roberts did not want a 5-4 decision. He has, you know, shuddered at this court being viewed as political, especially months from an election.

BISKUPIC: Sure that's right, Poppy. And what he wanted -- and probably Neil Gorsuch and Brett Kavanaugh wanted -- was to be able to send a signal that they are not, quote, "Trump judges," "Obama judges," whatever, which is the message that Chief Justice John Roberts is constantly trying to enforce.

So this was a cross-ideological coalition on this, both of these decisions, with only Clarence Thomas and Samuel Alito dissenting, leaving a lot for lower courts but, as we've been saying, it's actually a Trump win at this point, just in terms of the time he buys.

Although especially in the New York prosecutor case, there's a very strong chance that courts will eventually say that he has to turn over the tax records to the grand jury.

HARLOW: Right. Maybe, and if he wins re-election that could be in his second term. But the prospect of it happening in months, you're saying, is close to none?

BISKUPIC: That's right. And in the House case, the subpoenas -- you know, we have -- we're coming to the end of not just the presidential term, but the congressional term. So new subpoenas would have to be issued.

HARLOW: That's right. BISKUPIC: And as I said, John Roberts laid out a pretty extensive

blueprint for all the hurdles the House would have to cross in terms of defending these subpoenas. Is this the only way that the House can get the information, through these subpoenas? What legislative purpose are they serving? Has separation of powers been respected in some way?

So lots of things to consider before those subpoenas, which would have meant the public release of certain documents, would come out.

The New York case, we should remind everyone, those tax records and other financial documents would go to a grand jury, which is supposed to be secret.

HARLOW: Very strict secrecy rules there.

OK, Joan --

BISKUPIC: Yes.

HARLOW: -- we'll get back to you in just a moment, we'll let you keep reading the opinions. And I want to go to my colleague Sara Murray with a little bit more on here.

Good morning, Sara. What stands out to you, just in terms of the politics of this? And again, this coming in an election year. And what the public will and will not ever see?

SARA MURRAY, CNN POLITICAL CORRESPONDENT: Well, look, I mean, there's no doubt that this is a victory for the president, and he has made it very clear that he's not going to put out his tax returns on his own, and these decisions make it pretty evident that they're not going to come out before the election.

You know, I do think it's important to step back and remember the political climate we're in right now. You know, I don't think necessarily in the middle of a global pandemic, in the middle of the racial justice and the social unrest that we've seen, that the president's tax returns were going to be the motivating factor for a lot of these voters who, you know, maybe on this -- this deciding line in this coming election.

But it is important, you know? It's important in light of the way we've seen the president behave, it's important in light of the impeachment investigation and the questions that were unanswered, it's important in light of Robert Mueller's investigation and the questions that are still unanswered from that.

And, you know, it's possible we could get an answer to this if Donald Trump is re-elected in his second term. But for now, going into November, voters are not going to know anything more, essentially, about the president's finances --

HARLOW: Right.

MURRAY: -- than they do now. You know what -- I think the other question is, what does this mean

for all of the other litigation that's out there involving the president. It's obvious that his claim of sort of blanket presidential immunity does not hold up with the Supreme Court.

But there are a number of other cases in lower courts that have not involved the Supreme Court that have been sort of been waiting to see how the Supreme Court decides these cases, and they really have left things in a muddle except to sort of pay out a little bit of a road map when it comes to Congress. That may not be much help for some of these other lower courts that are trying to sort things out, though.

HARLOW: That's true, really important point, Sara. OK, thank you, stand by.

Let's go to Shimon Prokupecz. So, Shimon, we just got this statement from Cy Vance's office, he is the Manhattan district attorney, and he's calling this a win for the investigation that he says, look, has been delayed for a year; now it will resume. I mean, but the bottom line is, his grand jury's not going to get these documents right now.

SHIMON PROKUPECZ, CNN ___: Right, but you can see from his statement -- and let me just go ahead and just read this to you --

HARLOW: Sure.

PROKUPECZ: -- and what they say is that, quote, "This is a tremendous victory for our nation's system of justice and its founding principle that no one -- not even a president -- is above the law. Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided, as always by the grand jury's solemn obligation to follow the law and the facts, wherever they may lead."

[10:40:09]

So, right, they are viewing this as a victory and that is because of the ruling here that the president is not immune.

It would seem to me that they do expect that at some point they will get something related to this -- the district court here has been favorable to the D.A. in this, I mean, and actually was pretty scathing against the president at the time. So they clearly expect to be able to continue with this investigation.

And it is true, it has been delayed. They have been, now, investigating this for probably over a year. There could be statute of limitations issues that they may -- they, you would expect, will want to get this resolved as quickly as possible, and that could happen. You know, we don't know, that could happen.

Look, we're -- in dealing with the pandemic, the courts have been slowed down in some ways, grand juries have been slowed down, investigations have been slowed down. So that could maybe favor the president in some way --

HARLOW: Yes. PROKUPECZ: -- more than anything else. But it could, this could move

very quickly and we could see a resolution here sooner than we think -- Poppy.

HARLOW: Yes. Maybe, OK, Shimon, stand by --

PROKUPECZ: Maybe.

HARLOW: -- thank you very much for that. I want to get to the White House, Kaitlan Collins.

It's interesting, Kaitlan, Ross Garber, one of our expert attorneys, just said on the air, Look, you know, the president's lawyers have got to be really happy with this, but the president's not happy with this. If you look at his tweet, he calls it, you know, "political prosecution."

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Yes, the president is not going to be happy, being told he does not have the immunity that his lawyers argued that he does have. And so I want to read his first reaction to these rulings in full.

He said, "The Supreme Court sends the case back to the lower court, arguments to continue. This is only political prosecution, I won the Mueller witch hunt and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this presidency or administration."

And then he says, "Courts in the past have given broad deference. But not me."

He does not comment specifically on the two justices that he appointed to this Supreme Court, ruling against him in these cases. And so that's going to be the question of how does he respond to them. Because he's not the first president to have his own justices that he appointed rule against him. It happened to Nixon, it happened to Clinton, and now it has happened to President Trump.

HARLOW: It has. Let's go back to Ross Garber -- Kaitlan, thank you very much -- and Jeffrey Toobin.

So, Ross, you were about to make a point when I had to jump there?

GARBER: Yes, as I was reading the opinion in the congressional subpoena cases, something stuck out to me in the dissent. What Justice Thomas says in the dissent is, Look, what's really happening here -- and, Poppy, you and I have talked about this issue before -- what's really happening here is not an effort by Congress to legislate. What's really happening is that this is an impeachment -- this could have been an impeachment subpoena.

And it's important for our viewers to know that although there was a subpoena -- excuse me -- although there was an impeachment investigation of the president, these subpoenas weren't issued in connection with that investigation, they were issued as an effort to purportedly legislate. What Justice Thomas said in the dissent is, If you want to investigate the president this way, you have a mechanism. It's the impeachment provision, and you could have used it.

HARLOW: Jeffrey Toobin, what do you make of that?

TOOBIN: You know how I think it's convenient for Justice Thomas to say, Well, Congress, you didn't do this the right way but maybe someday I would approve a subpoena to the president? I'll believe that when I see it.

I mean, I think, you know, Justices Alito and Thomas went out of their way to support the president in this case, even though his arguments were, you know, rejected by a bipartisan cross-section of the justices.

But I think, you know, this is a legal defeat for the president, but it's a practical victory. I mean, the real concern that the president has, and his political advisors have, is that the people would see his tax returns. He's kept his tax returns secret far longer than any presidential candidate in the modern history of presidential elections.

That record will be intact in 2020, the public will not see his tax returns in 2020. That's a victory, that is something that was the calamity that was potentially at the end of this case for the president. It will not happen.

Now, if I am Donald Trump, I am also going to be thinking, You know, win or lose, the Manhattan D.A. is not going away. This investigation is going to continue, and I might get indicted in Manhattan. And the first decision, the decision from the Cyrus Vance case, really does suggest that these documents will be produced to the grand jury. Not immediately, but eventually.

[10:45:02]

And if I'm the president, I am not going to be happy about the idea that my financial documents are going to be before a grand jury, even if it's not until after the 2020 election.

HARLOW: Could -- Jeffrey, could you weigh in? Because as you're reading all of the majority opinion and the dissent here, our viewers are just getting part of it unless they have all of -- all 68 pages of the first one in front of them.

So here's what Roberts, Chief Justice Roberts, writes on page 17 of the majority opinion in the Vance case. Quote -- noting that there is no absolute immunity for any president -- quote, "Given these safeguards and the Court's precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause. Our dissenting colleagues agree."

And I think that's really important, to your point about what all nine justices did agree on here. TOOBIN: You know, Justice Kavanaugh, in his opinion, concurring in

the judgment in the Vance case, makes the same point, which is all nine justices reject the position that Trump's lawyers put forward, that the president is effectively above the law when it comes to these sort of investigations.

The -- and that's a profound thing. I mean, the idea that the president could have made such an argument and that an ideologically diverse court has rejected it in total. However, you know, applying the law that Chief Justice Roberts set down in these opinions, especially in the congressional case, is not going to be a simple thing.

And it's going to be -- I haven't certainly read the opinion closely enough to know how I think the courts will ultimately resolve these questions, but the idea that the president is totally immune, does not have to answer a subpoena at all, regardless of what it's for, all nine justices have rejected that position, and that's a kind of unanimity that does recall United States v. Nixon in 1974 and Clinton v. Jones in 1998.

HARLOW: Yes, that's a good point, it certainly does.

When it comes to what Roberts wrote, Jeffrey, in the opinion about Congress and the three congressional committees' requests, the House requests for documents in Mazars case, he write this, "While we certainly recognize Congress' important interest in obtaining information through the appropriate inquiries, those interests are not sufficiently powerful to justify access to the president's personal papers when other sources could provide Congress the information that it needs."

What I find interesting is that the lower courts, Jeffrey, had ruled, We're not even asking, you know, for the president's papers, we're asking for third parties. So what is the big picture of the court's ruling here when it comes to the power of Congress and where its hands are tied, at least for now?

TOOBIN: Well, the message of the opinion is that courts really have to take seriously presidential claims of harassment. And you know, when I was an assistant U.S. attorney and -- when I could, you know, write up a grand jury subpoena that was in my desk, I didn't have to worry that someone was not going to respond. You know, we would subpoena phone company records --

HARLOW: Sure.

TOOBIN: -- they respond as a matter of course. Tax returns, we got almost as a matter of course. This is going to be different. The government, the congressional committees are going to have to make a showing, A, of why you really need it and, B, couldn't you get this information elsewhere?

Now, frankly, I don't know where else they could get this information. But that is certainly an argument that they are going to have to address as this case works its way through the courts. So this opinion clearly says the president is different. He is not

going to be treated just like any other person getting a subpoena. However, he is not absolutely immune from having to answer these questions.

HARLOW: Right, but that's a very good point. He is different in one respect, but through the other Vance (inaudible) in no respect enjoys absolute immunity.

Let me get to Kaitlan Collins because the president is weighing in a lot more on these -- Kaitlan, what else is the president saying about the decision?

COLLINS: We're going to get a lot of tweets today, I think, Poppy. And I want to note, before I go through what the president is saying, that we -- the press corps here at the White House -- have not had the chance to actually question the president in over two weeks. He has not taken questions from us. He didn't yesterday, they didn't even hold a press conference with the Mexican president --

HARLOW: Yes.

COLLINS: -- which is typically what they do when a foreign leader visits. But he is tweeting, and he's tweeting a lot -- he just fired off a huge thread.

[10:50:02]

And basically, to sum it up, he is complaining that people are going after him, in his view, but not going after his political opponents. This is something he's complained about for a long time now with the FBI, with the Senate Judiciary Committee, which is obviously Republican-controlled. And that is what he's saying now.

He's saying -- you know, he's accusing Barack Obama and Joe Biden of crimes, he's saying that no Republican Senate Judiciary response, no justice, no FBI, no nothing. So basically he is complaining because he feels like he is being unfairly targeted, something that of course has been a theme of his entire administration.

But then he goes on and says, This is prosecutorial misconduct. He says, We catch the other side spying on my campaign, the biggest political crime in history, and nothing happens. And then he talks about his achievements so far in office.

So, clearly, the president is not happy with this even though you heard how Jeffrey is framing this as a win for the president because it's unlikely that anyone is actually going to see his financial records before voters go to the polls in November. That is not how the president is viewing this today.

HARLOW: Yes.

COLLINS: He is going off on this decision on Twitter, I expect we are going to continue to hear this throughout the morning. HARLOW: And, Kaitlan, I mean, it's clear that he thought that this --

I mean, it sounds like, from reading his tweets, that these were slam- dunk cases for him. And not to mention the two justices that he appointed, Kaitlan -- Justice Gorsuch and Justice Kavanaugh -- joining with the majority opinions here.

COLLINS: Yes. And, you know, everyone, as Chief Justice John Roberts made clear, they're not supposed to view judges as by who they're appointed by, but the president certainly does. That he's often derided someone as an Obama judge. He views his judges --

HARLOW: Right.

COLLINS: -- as one of his biggest accomplishments. And of course, the Supreme Court justices are there at the top of the list.

So it is a major blow to the president that those two justices here ruled against him and whether or not he could shield his tax returns, his financial documents in this New York situation. And so that is really --

HARLOW: Yes.

COLLINS: -- notable for how the president is going to view this.

And you know, we've had a lot of talk lately of my colleague Kevin Liptak was reporting that the president wants to put someone else on the Supreme Court, he wants to be able to make that pitch to voters before November. And so I wonder if this is going to up the pressure that the president has said, you know, privately, talking about the fact that he wants to put someone else on that court. I think this is only going to fuel that even further.

HARLOW: I think you're right, Kaitlan. Thank you very much.

Let me go to Abby Phillip, who joins us, and Doug Brinkley as well, our historian, for the perspective on this.

But, Abby, I had to jump in -- I'm sorry -- when you were speaking last, to get to the court for the other decision. You know, the former vice president, Joe Biden, is weighing in on this. What's his message?

ABBY PHILLIP, CNN POLITICAL CORRESPONDENT: Yes. He is reupping this message that he's been saying for quite some time, saying that he has released 21 years of his tax returns, and he is pressuring President Trump to do the same. It's a window into how this becomes a political issue for the president even though the court does not necessarily force these records to become public or to go to Congress.

Biden is essentially saying, What do you have to hide? To President Trump, and I think that's what is underlying, you know, the other element of what all of this means.

Yes, it is, as Jeffrey has said, a practical victory for President Trump. But as you can see from the president's tweets, he remains concerned about the prospect that this information -- that he's been trying for many, many years to hide -- might become public, might become part of the public sphere and might actually be used against him, whether he is in office or not.

He is not over that possibility. This is a president who has been a businessman his whole life, but has always run a private company. It has never been subject to public scrutiny, and the president really wants it to remain that way.

For the next four months, there will not be a mechanism to force the president to do this, but there will be an enormous amount of political pressure from Biden and from others, for the president to show that he is not in fact trying to hide something.

Because, obviously, he is, based on his tweets -- as Kaitlan just read -- remains incredibly concerned that these investigations going on in New York in particular could have an impact on him, near-term, long- term, whether he is president or out of office.

HARLOW: That's a very good point. You know, what are the implications of this, Douglas Brinkley, for the president if he wins a second term or if he is out of office and does not?

I'll push people to page 21 in the tax decision, the Vance case, the New York prosecutor case, where the chief justice, John Roberts, writes this, "Two hundred years ago, a great jurist of our court established that no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding" -- because that's what this is.

[10:55:00]

"We reaffirm that principle today and hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need."

So looking forward, whether he wins the presidency again or not, what does what happens at the lower courts -- and may ultimately return to this court -- mean for him?

DOUGLAS BRINKLEY, CNN PRESIDENTIAL HISTORIAN: I find this to be a very dark day for Donald Trump, this is his greatest fear. You know, he has now -- Vance has open season on trying to get these documents loose and have a grand jury. Trump has been doing everything and anything to prevent that.

We just have to imagine what are in his tax returns, what are in his financial documents. And you know, whenever we get to see them, whenever the public learns about them, it's going to be very difficult for Donald Trump.

You know, they're -- if Trump loses, he may end up being a cellmate next to Cohen, who knows there this could lead to. Trump wanted a clean victory here.

But I do agree on the short-term political re-election front, you know, Biden's going to be saying, I released my taxes, you're a coward, what are you covering up, Mr. President? Open up your tax returns, you promised it. That will be going on for the next four or five months.

But Donald Trump now has to live in a state of extreme paranoia that all of his financial records are going to be being opened and looked at in New York.

And let's -- and we're talking about the speed of this, Poppy. I mean, Vance has been waiting and waiting and waiting, he's getting a green light now. They are going to be prioritizing looking into Donald Trump's records. It won't happen before November, but you're looking at if he got re-elected and was president in 2021, this becoming a dominant story of the year.

HARLOW: Well, that's an important point, that the case in New York has been on hold, essentially, for a year and now it picks right back up.

Jeffrey Toobin, you said this is a practical win for the president, Douglas Brinkley calls this a dark day for the president. Do you think it's a dark day for the president?

TOOBIN: Well, I do think it is certainly unnerving for him, to say the least, that the grand jury in New York is going to get these documents, and they will not get them before November, I think, but they will get them someday.

And unlike Congress -- which turns over every two years and has new priorities and new members -- the district attorney, even though they run for re-election every four years, the office always continues. So this investigation is going to proceed. And my reading of this opinion is that they're going to get the financial records that they want.

As I say, they will not get them before November, and they won't be publicly disclosed unless there's an actual public trial, but they are going to get these records, and that has to be extremely unnerving for the president. And as we can see from his tweets, he is in a rage about that.

But if we are viewing these two cases -- particularly the congressional case -- through a political prism, it is a win for the president because he will be able to hide his tax returns, unlike any other president, presidential candidate in the modern era, for one more election.

And that is a victory for him, and even if he's not expressing happiness about it, it's still a victory for him.

HARLOW: If we could just take a step back for one moment, Jeffrey Toobin. And what you think these two decisions say about the court, the High Court, as it stands now, that the president has worked so hard to shape?

TOOBIN: Well, he needs some more appointments if he wants the extremely conservative court --

HARLOW: Yes.

TOOBIN: -- that a lot of his supporters want. I --

HARLOW: But his -- his appointments didn't side with him here.

TOOBIN: Well, they didn't side with him in these -- on this case. But I mean, if you look at the record that Justice Kavanaugh and Justice Gorsuch have taken, they are overwhelmingly conservative.

It is true that Justice Gorsuch voted with the liberals on the case about discrimination against LGBT people, but other than that Justice Gorsuch and Justice Kavanaugh, you know, they voted with the president on abortion -- against abortion rights, they voted with him to support his attempt to throw the Dreamers out of the country. These are conservative justices.

The real story of this term, I think, is Chief Justice Roberts, who historically, in his 15 years as chief justice, has been a conservative but has voted with the liberals in the major, major cases. That's the problem for the president, and he needs some more retirements from the court in order to get the majority that he really wants.

[11:00:03]

HARLOW: We'll see if that happens, given that today was the final day of decisions, of the term for the High Court.