May 12, 2020
Supreme Court Hears Arguments on Trump’s Financial Records, Tax Returns
On May 12, the Supreme Court of the United States heard oral arguments mostly pertaining to Donald Trump’s financial records, tax returns, and hush-money payments related to the 2016 election. Read the full transcript of today’s arguments here.
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Court Marshal: (11:49)
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States are admonished to give their attention, for the court is now sitting. God save the United States and this Honorable Court.
Chief Justice Roberts: (12:13)
The first case we will argue today is case 19-715, Donald Trump versus Mazars, USA. Mr. Strawbridge?
Mr. Strawbridge: (12:32)
Before these cases, Mr. Chief Justice, and may it please the court, the subpoenas at issue here are unprecedented in every sense. Before these cases, no court had ever upheld the use of Congress’s subpoena power to demand the personal records of a sitting president, and no committee of Congress had even tried to compel production of such a broad swath of the president’s personal papers, let alone for the stated purpose of considering potential legislation.
Mr. Strawbridge: (12:59)
There is a reason that this is the first time a congressional committee has attempted such a gambit. It has long been understood that because Congress’s subpoena power is implied, it is auxiliary and subordinate, and when that power is deployed against the president, it must yield absent any longstanding tradition or particularly compelling showing of need. The committees can satisfy neither condition here, and that should decide this case.
Mr. Strawbridge: (13:24)
The committees contend that these subpoenas satisfy the limits this court has always applied to congressional subpoenas, but their arguments would render those limits meaningless. For example, they contend that this court should ignore the committee’s avowed improper purpose so long as they simply tack on a broad reference to potential legislation. They claim that Congress can use subpoenas to uncover individual wrongdoing, simply because that will always inform the sufficiency of existing laws, and they challenge this court’s ability to even question the constitutionality of the potential legislation that they rely upon. The committee’s obvious overreach is sufficient to invalidate these subpoenas, even in a typical case, but the court simply does not proceed against the president as it does against an ordinary individual. The committees have not even tried to show any critical legislative need for the documents the subpoenas seek.
Mr. Strawbridge: (14:16)
Now, it is no secret the relationship between the House of Representatives and the President is frayed, but this is neither the first nor the last time that one house of Congress will be at odds with the President. The rule that the court applies here will affect not only this president, but the presidency itself. The court should deny the committees the blank check they seek and reverse the decisions below.
Chief Justice Roberts: (14:36)
Mr. Strawbridge, I want to make sure that I understand the scope of your argument. Your brief begins by questioning whether the House has any power to subpoena presidential records, but you seem at the end of the brief to pull back from that. You say that such subpoenas, quote, “press the outer limits of Congress’s authority” end quote, and that there is every reason to doubt whether subpoenaing the personal documents of the president is a necessary incident of lawmaking. Do you concede any power in the House to subpoena personal papers of the president?
Mr. Strawbridge: (15:14)
I think it is very hard to imagine that the House is ever going to have the power, pursuant to its legislative powers, to subpoena the records of the president, because quite frankly, the House has limited powers to regulate the presidency itself. So I think it’s very difficult to imagine a situation where its implied power to subpoena documents-
Chief Justice Roberts: (15:38)
That’s another formulation for what I was just focusing on. “Difficult to imagine.” “A reason to doubt.” In other words, is your position recognized? Is it recognized in a particular case that the Congress or the House may have such authority, and that in such a case it would be for the courts to decide whether it’s exceeded any bounds in that situation?
Mr. Strawbridge: (16:01)
Yes. We have argued that at a minimum, this court should apply the demonstrated need standard that has applied in other cases when there is an attempted sort of process that targets the president.
Chief Justice Roberts: (16:14)
Okay. So you say there is some power in the House. You think there’s a high standard. I understand the House to concede there is some limit to its authority. So it sounds like at the end of the day, this is just another case where the courts are balancing the competing interests on either side. Is that the wrong way to look at it?
Mr. Strawbridge: (16:34)
Well, I don’t think that we’re asking this court to do anything different than it has to do in an ordinary case. We’re just noting that the restraints upon the powers of Congress are emphasized in this case, because this is a separation of powers dispute, and although-
Chief Justice Roberts: (16:49)
Thank you, counsel. Justice Thomas? Justice Thomas? Justice Ginsburg?
Justice Ginsburg: (17:08)
Counsel, in so many of these prior cases, there was a cooperation. For example, tax returns. Every president voluntarily turned over his tax returns. So it gets to be a pitched battle here, because President Trump is the first one to refuse to do that, and initially he said because of an audit was ongoing. Now it seems to be broader than that. But the aura of this case is really sauce for the goose could serve the gander as well. So how do you distinguish, say, Whitewater, when President Clinton’s personal records were subpoenaed from his accountant, or even Hillary Clinton’s law firm billing rec was subpoenaed? It seems that in prior cases, you say this one is one of a kind, but it seems in prior cases, there was a much greater collision of interests. Take the Nixon tapes. How do you distinguish all of those cases? Watergate, Whitewater, [inaudible 00:18:29], the Paula Jones case?
Mr. Strawbridge: (18:35)
Well, Your Honor, we distinguish them in a number of ways. With respect to Watergate and Whitewater, obviously those are cases of relatively recent vintage, and in separation of powers disputes, this court has generally, such as in Noel Canning, looked back for a much longer precedent for the type of issue that needs to be decided, examples of the encroachment upon the separation of powers. And the recent examples, there are just a handful of them that the House identifies are two recent, under that structure as the court recognized in Southwest General. Now, it’s also important to note that almost all of those cases, I think all of those cases actually involve cooperative efforts. And as the court recognized below, consent is not the measure of constitutionality. In none of those cases was there a challenge to the scope or to the power of the legislative committee in that case to request those documents. And I think Whitewater-
Chief Justice Roberts: (19:29)
Thank you, counsel. Justice Thomas?
Justice Thomas: (19:32)
Yes. Thank you, Chief. Counsel, I’m very interested in, do you think that there are any implied powers for the Congress to request or to subpoena private documents?
Mr. Strawbridge: (19:51)
I think that there might be limited powers in some cases for the House to subpoena private documents, although the court has been very clear in Watkins and a number of other cases that Congress lacks any power to just inquire-
Justice Thomas: (20:04)
Could you define what you mean by that limited power?
Mr. Strawbridge: (20:08)
Well, I think that we don’t quarrel with the general notion that Congress has some implied power to exercise its legislative powers. And we recognize that in some cases, Congress has been able to seek information that would be directly relevant to its consideration of potential legislation. But as the DC Circuit recognized in Select Committee and Judge Livingston recognized below, most often, that’s going to take the view of forward looking information, perhaps aggregated information, and not an attempt to reassemble a precise factual history. That’s precisely what the-
Justice Thomas: (20:45)
In the DC Circuit opinion, it says that this sort of information or subpoena should be requested under the impeachment power. What’s the line between a subpoena, a legislative subpoena and an impeachment related subpoena?
Mr. Strawbridge: (21:05)
Well, in Kilbourn, this court recognized that there are two very different powers, and that when impeachment is properly pending before either body of the House, the ability to subpoena pursuant to impeachment is coextensive with that of the courts. Of course, court subpoenas are not unlimited, but that has no bearing on this dispute because the committees have waived any reliance on impeachment, and nor could they. These committees don’t even have jurisdiction over impeachment. So regardless-
Chief Justice Roberts: (21:33)
Justice Breyer: (21:36)
I’d like to follow up on both Justice Thomas’ and Justice Ginsburg’s questions. As to Justice Thomas’ questions, are you saying that Sam Ervan’s subpoenas, which were done under the legislative power at the time of Watergate, which were fairly broad, are you saying they were unlawful, that a court should not enforce them? Yes or no? And as to Justice Ginsburg’s question, I would like to know why, since in Watergate and other cases, Watergate particularly, the court gave contested material involving the very workings of the presidential office to the prosecutor, why isn’t whatever standard applies to personal papers a weaker one, not a stronger one.
Mr. Strawbridge: (22:29)
Well, if I can answer that last question first, I think that the court cannot refuse to see what others see, to quote Rumley and the threat in this case of subpoenaing decades worth of papers, not only of the President, but of the President’s family members, of his children, of his grandchildren, as the House has done in this case, poses an obvious problem with respect to harassment and infringement upon the ability of the executive to discharge his duties 24 hours a day. Unlike Congress, the President is never in recess, and these types of subpoenas are going to be particularly troublesome and burdensome.
Justice Breyer: (23:05)
Are you saying that a weaker … Whatever it is, why wouldn’t whatever standard applies to personal papers before the presidency be equal to or weaker than the standard for material that is the workings of the administration at the time?
Mr. Strawbridge: (23:25)
Well, setting aside any executive privilege concerns, which I understand is not the focus of your question, the answer is because this court has repeatedly emphasized, in Kilbourn, Watkins, and everywhere else that Congress lacks any power to inquire into the private affairs of any individual. And that’s distinct from whatever interests they may have informing themselves about the workings of government. Now, that informing power does not extend to the president. It generally applies to lower executive branch officials and agencies.
Justice Breyer: (23:52)
Thank you. I see. What about the first question? Are you saying that the Ervine Committee subpoenas were unlawful? Yes or no?
Mr. Strawbridge: (24:00)
We do not. We do not argue that, and we do not need to address the power of impeachment because it’s not an issue in this case.
Justice Breyer: (24:05)
It wasn’t impeachment.
Chief Justice Roberts: (24:06)
Justice Alito: (24:10)
Counsel, are there any circumstances in which a House of Congress can justify a subpoena for a sitting president’s personal records on the ground that it wants to use the president as a case study for possible broad regulatory legislation?
Mr. Strawbridge: (24:30)
I think it’s difficult to imagine for a couple of reasons. One is, even setting aside the fact that it’s the president, this court has always required some showing that the information being sought is pertinent. And I think that the swath and the scope of the subpoenas that are issued here create serious problems, even in an ordinary case. But to directly answer the question, no. The president’s personal papers are not related to anything having to do with the workings of government, and to empower the committees to simply declare him a useful case study is to open the door to all sorts of oppressive requests. You could have subpoenas directed seeking all of Jimmy Carter’s financial history simply because he used to be a peanut farmer and they want a case study on agriculture. You could have all sorts of requests for medical records, for educational records, any imaginable detailed personal records, because Congress does have the general power to legislate in lots of areas.
Justice Alito: (25:28)
Perhaps before my time expires, I can ask you one other question. I think you said that Congress has limited power to regulate the conduct of a president. Does Congress have any power to regulate the conduct of the president, which is an office that is created by the Constitution itself and not by Congress?
Mr. Strawbridge: (25:51)
The answer to that, and I think it’s clear from this court’s cases, is not very much, which is why it frequently applies avoidance principles to avoid even having to decide whether Congress has attempted to reach the president. Now, the one example, obviously in recent history is the Nixon versus General Administrative Services case. But even in that case, it was a very limited right, regarding presidential documents. One could imagine maybe some hypothetical where there would be some limited personal papers that might be relevant to a question regarding custody of official documents, but of course even in that case, what saved the constitutionality of that statute was the fact that it was not seeking the president’s personal papers, and that control remained in the executive branch, neither-
Chief Justice Roberts: (26:32)
Justice Sotomayor: (26:36)
Counsel, there is a long, long history of Congress seeking records and getting them, as Justice Ginsburg pointed out, from presidents. And in some of those cases, we have said, especially Eastland and McGrain, that a congressional subpoena is valid so long as there is a conceivable legislative purpose, and the records are relevant to that purpose. I see a tremendous separation of powers problem when you’re talking about placing a heightened standard or clear statement, your various formulations of this, on an investigation that a committee is embarking upon.
Justice Sotomayor: (27:23)
Now, I understand your complaint about the financial services subpoena on the money laundering issue, but are you disputing that the stated purpose of the Intelligence Committee subpoena at issue, investigation efforts by foreign entities to influence the US political process, and related to the financial records of that, that those were irrelevant to that purpose, and that’s an illegitimate purpose by the investigative committee, by the Intelligence Committee.
Chief Justice Roberts: (27:57)
Well, taking the relevance question first, yes. Even if you accepted that there was some legitimate legislation that could be had that reached the president, because what we’re seeking here is presidential finances, when you look at the-
Justice Sotomayor: (28:11)
I’m sorry. Pardon, sir. Not presidential finances. We’re asking for his personal tax returns before he became president. Those are very different things. And we’re not asking him to produce it, and some of the subpoenas that Congress through history as far back as 1792 have asked for personal papers of the president while being president. This is before he was president. I don’t understand. And they’re not his papers, in the sense of, he’s not in possession of them. These are two subpoenas to private entities.
Mr. Strawbridge: (28:54)
Okay. So there are a number of issues there. With respect to the custodian issue, this court, even going back to Eastland, has always recognized the ability of a person who stands in the president whose records are in the hands of a third party to come in and challenge them. And that’s certainly the case here.
Justice Sotomayor: (29:09)
Well, those papers all have to do with executive privilege questions-
Mr. Strawbridge: (29:14)
Not in Eastland.
Justice Sotomayor: (29:15)
… and they’re not personal papers. All those cases have to do with papers that belong to the office of the president. Again, these are personal papers.
Chief Justice Roberts: (29:27)
Mr. Strawbridge: (29:28)
Yup. Eastland didn’t even raise that issue. Eastland was in fact personal papers, but with respect, I guess the main point I would make is, whatever presumption this court has previously applied in cases that involve separation of powers, it should not put any finger on the scale for Congress’s asserted legislative power in this case. And indeed, in numerous separation of powers cases, starting with Kilbourn, the court has declined to extend any presumption that Congress had a legitimate power. That was also true below in the DC Circuit, in Tobin, in the Senate Select Committee case, and even in the AT&T cases.
Chief Justice Roberts: (30:03)
Justice Kagan: (30:05)
Good morning, Mr. Strawbridge. I think what strikes me about this case is, this isn’t the first conflict between Congress and the president, as many of my colleagues have pointed out. We’ve never had to address this issue, and the reason is because Congress and the president have reached accommodations with each other, and sometimes one has gotten more and sometimes the other has gotten more, but there’s always been this accommodation seeking. And what it seems to me you’re asking us to do is to put a kind of 10-ton weight on the scales between the president and Congress, and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the president is concerned. And you’re quite right in what you said before, that this isn’t going to be the last such case, and I wonder whether that fact isn’t a good reason to reject your proposed rule.
Mr. Strawbridge: (31:00)
Oh. Well, no. I don’t think that that’s the case. Well-
Mr. Strawbridge: (31:03)
Well, no, I don’t think that that’s the case. Well, and for several reasons. One, the fact that this is the first time that Congress has attempted to subpoena this scale and this scope of documents from the president, and none of the other historical cases involved a direct subpoena for the president’s documents in the way that this one does, I think requires this court to draw a line. It is unfortunate that the house did not attempt to seek these documents directly from the president or engaged in any negotiation, but simply ran to the third party custodians and forced the president to bring this, among other things, that has the effect of limiting the number of defenses the present can bring. But even on the test this court has always applied in this scenario, the subpoenas fail every hallmark of a legitimate legislative investigation. And whatever-
Justice Kagan: (31:47)
Go ahead, sorry.
Mr. Strawbridge: (31:48)
Whatever power Congress has to conduct oversight of lower branch agencies or inform itself as to the workings of government, these documents are not relevant to that. And that power does not extend to the president who is a separate constitutionally created officer.
Justice Kagan: (32:02)
Yeah, I mean, I think some former presidents might contest the idea that these subpoenas go further than has ever gone before. And this gets me back to what Justice Breyer has said, is that these subpoenas are for personal records where the president is just a man. They’re not for official records where the president might have executive privilege, where we have to worry about the conduct of governance and about the way the executive branch operates. And as with Justice Breyer, I guess I would like to hear your views on why that wouldn’t suggest that there is a lower standard here, not a higher one.
Mr. Strawbridge: (32:40)
Well, I guess because the fact that they seek personal documents doesn’t mean that they’re not targeting the president, and indeed both the oversight committee and the financial, or I’m sorry, the house intelligence committee have identified the president in his role as president, as one of the motivating factors for their investigation. Secondly, as this court has noted, even in Clinton V Jones when it rejected a broader immunity argument, there’s still a need to ensure that the president is not going to face undue harassment or distraction, and there’s a necessity to accommodate him. We think that that’s best accommodated in this case at a minimum by applying the demonstrated need standard in which-
Chief Justice Roberts: (33:19)
Justice Gorsuch: (33:22)
Counsel, I’d like to pick up right there, where you left off. You argue that there is no demonstrated need, no substantial legislative purpose. The house is before us, and I’m sure we’re going to hear from them that there is a substantial legislative need. Why should we not defer to the house’s views about its own legislative purposes?
Mr. Strawbridge: (33:45)
For several reasons, Justice Gorsuch. To begin, the subpoena power is an implied power as this court made clear most recently in NFIB V Sebelius that Congress cannot use its implied powers to challenge the structure of government. And a subpoena targeting the personal documents is a challenge to the separation of powers. In Morrison V Olson as well, The court did not apply a presumption on either side of that dispute, precisely because it was a battle between the branches. As Justice Scalia pointed out in his opinion, there’s simply no need for a presumption on either side, whatever might normally apply in the case against an ordinary individual, because the president has his own powers that are created by the constitution. And then of course, this court in a number of cases, as we described, has recognized, going back to Chief Justice Marshall, that we do not proceed against the president as we do against an ordinary litigant.
Mr. Strawbridge: (34:38)
And so whether that was in Cheney, whether that was the limiting instruction given to the APA-
Justice Gorsuch: (34:43)
Counsel, I’m sorry to interrupt you, but I guess my question was more practical than that. Why is this subpoena not supported by a substantial legislative need?
Mr. Strawbridge: (34:56)
Well, I guess three answers. Congress has not really identified with any specificity what actual valid legislation it could enact that directly reaches the president. Even if it had, it hasn’t identified how documents going back upwards of 10 years in some cases completely unlimited and seeking the most minute financial details, not only about him, but his children and his grandchildren, every credit card swipe, every check, has anything to do with some purpose that would actually be permissible legislation. And I think that any allowance of the key study rationale that the house has relied upon for the financial services committee is a door that opens to endless subpoenas and harassment anytime one party controls one house of Congress opposite from the president.
Chief Justice Roberts: (35:46)
Thank you, counsel. Justice Kavanaugh.
Justice Kavanaugh: (35:49)
Thank you, Chief Justice, and good morning, Mr. Strawbridge. On your argument that the Nixon demonstrated specific needs standards should apply or the demonstrably critical standard, explain for me how that would play out in practice in a case like this.
Mr. Strawbridge: (36:10)
Well, in a case like this obviously where Congress is asserting its desire to enact general legislation, I think it’s going to be very difficult. I don’t hold out the possibility that they could meet the demonstrated need. I mean, I don’t completely rule out that possibility, although I think it is telling that the house devoted all of one sentence to each of these subpoenas attempting to just assert very broadly that they meet the demonstrated need criteria. But if there were some situation in which Congress had put forth a statute for which they needed some information to decide whether to enact a statute, the statute was valid, and for some reason the president’s personal papers were necessary to inform Congress, then perhaps in that case, you could meet the demonstrated-
Justice Kavanaugh: (37:11)
Secondly, following up on Justice Kagan’s point about the future, on page six of your supplemental letter brief, you say that “It is likely that civil litigation over the subpoenas would have been foreclosed had the committee issued them to the president,” and you say this case is different because the subpoenas were issued to a third party custodian. And there’s an implicit assumption there that I just want to make sure of, namely that absent a court order, the private custodians plan to comply with the subpoenas, even if the client directs or requests them not to comply. Is that correct?
Mr. Strawbridge: (37:47)
The recipients of these subpoenas have indicated that they consider it to be a dispute between the president and the house of representatives, and absent some sort of court order regarding its validity, they feel obligated to comply. And this court in Eastland recognized that it’s just not reasonable to expect in this situation the third party custodian to risk contempt of Congress or other collateral consequences. And there needs to be a vehicle to allow for review, especially in this case where the president is suffering a personal injury.
Chief Justice Roberts: (38:18)
Thank you, counsel. General Wall.
General Wall: (38:26)
Mr. Chief Justice, and may it please the court. These cases are truly historic. Three different congressional committees have targeted not the official records of the president, but his personal records stretching back to years before he was even a candidate for office. The potential to harass and undermine the president and the presidency is plain. It’s not much to ask that before the house delves into the president’s personal life, it explain in some meaningful way what laws it is considering and why it needs the president’s documents in particular. The subpoenas here don’t even come close. That creates two problems for the house. It can’t satisfy any standards sensitive to article two and the separation of powers. And indeed, as in Rumely and Watkins, this court should not decide a serious constitutional question the full house itself has not confronted
Chief Justice Roberts: (39:19)
Counsel, you spent a lot of time in your brief documenting that the purpose of these subpoenas was actually investigatory rather than legislative. And if that is a pertinent consideration, I wonder how a court is supposed to look at it. Should a court be probing the mental processes of the legislators? Should members of house committees be subject to cross examination on why you were really seeking these documents?
General Wall: (39:53)
No, Mr. Chief Justice. I want be clear. I don’t think any of that would be permissible [inaudible 00:39:58] objective record, that is the basis for the legislative subpoenas themselves. So we have not, in our brief, turned to legislator statements. We haven’t said that they should be able to get discovery into their mental processes or anything in the like we have said that chairman Cummings’ memo shows the objective purpose’s wrongdoing, but more important, I would just point to the mismatch between the breadth and duration of the subpoenas in their asserted purposes. I think with respect to all three, they don’t match up with what the committees say they’re doing if you look at the information they’re seeking.
Chief Justice Roberts: (40:36)
Thank you, counsel. Justice Thomas.
Justice Thomas: (40:40)
Mr. Wall, following up on the Chief Justice’s question, what if it was clear from those statements that you review that their intention was actually to remove the president from office rather than the sort of pretextual reason that it is for pretextual legislative reasons?
General Wall: (41:07)
I do think if you look at the statements, and we haven’t urged that, but if you do, yes, I think they make clear that the subpoenas are not in aid of valid legislation. That’s the only enumerated power to which Congress has pointed here. The house has not relied on impeachment. And so you would simply say the subpoenas are invalid. And to tie that into Justice Gorsuch’s question earlier, I think we’re not asking to go back and look at what they said or probe their mental processes. I’m just saying if you look at pages 46 and 54 of the red brief, and you look at what they actually say about their intended legislative proposals and then why they need the document, it’s paper thin. They don’t give you any specifics on what they’re thinking about doing or any specifics on why they need the documents. And that’s not an accident. It’s not the product of carelessness or thoughtlessness. It is because of the purpose here is to expose wrongdoing, and the house has never really tried to substantiate why it needs these documents in service of its legislative powers.
Justice Thomas: (42:06)
Chief Justice Roberts: (42:07)
Justice Ginsburg: (42:11)
One must investigate before legislation the purpose of investigation is to frame the legislation. You don’t have the legislation in mind. You want to explore what is the problem, what legislative change, and reduce or eliminate the problem. So for example, the ethics in government act, Congress may decide that it needs to beef up that legislation. It may also decide that for financial disclosure purposes, there should be disclosure of tax returns. So those legislative purposes investigate to see if you need legislation of that sort. And then to impugn Congress’s motive mean even the policemen on the beat, if he stops the car and gives the reason that the car went through a stop sign, we don’t allow an investigation into what the subjective motive really was. So here you’re distrusting Congress more than the cop on the beat.
General Wall: (43:33)
Justice Ginsburg, I absolutely agree that Congress can investigate in service of what legislation might be needed. Our submission is much more modest that when that legislative, when that inquiry involves the president, that you need a somewhat higher standard with respect to purpose because the room for regulating the president is so much narrower than it is with respect to private parties. And on the need side, because of the dangers of harassing and distracting and undermining the president, and that’s a common theme that runs through the court cases that the president gets some measure of heightened protection because you can’t proceed against the president as against an ordinary litigant. And all I’m saying is that Congress hasn’t met that standard here.
Justice Ginsburg: (44:17)
How did that work out in the Paula Jones-
Chief Justice Roberts: (44:20)
Justice Breyer: (44:23)
Following this up, assume, as I do, that for reasons set out in an opinion by Judge Griffith, we’re not very good courts at deciding disputes between two powerful political branches. So it should be rare. But if it is in front of us, why not apply the standard that is ordinarily applied to every human being in the United States in respect to, for example, grand jury subpoenas? Any human being in the United States, when he gets a subpoena, can go to a judge and say, judge, this is overly burdensome. And then he has a chance to show it. And here, if it’s the president, the court’s already written in Paula Jones two or three paragraphs of the kinds of things that a president has that are special, special need, not to take his time, et cetera. But we do object to his decision of this court that says, apply that taking into account the special needs of the presidency, just like other human beings sometimes have special needs. They might be an emergency medical worker, et cetera.
General Wall: (45:40)
I would, Justice Breyer, on two grounds. First, the courts and the DC circuit have rejected the analogy to grand jury subpoenas served by prosecutors. These are legislative subpoenas, not subpoenas issued by the executive branch for entirely different interests, and they trigger different concerns. These subpoenas need to be in aid of valid legislation, not as a prosecutor subpoena to probe wrongdoing. And the second is, to take both of your question and I think what Justice Ginsburg was going to get at, we do think the analogy to Clinton V Jones is actually helpful. The court there rejected an absolute immunity, but said the president was entitled to some special protections. And we are here saying the court should take exactly the same approach. We’re not saying the house has no power to get at the records of the sitting president. We’re saying that it needs to satisfy a heightened standard because if it doesn’t, these requests will become routine. And that weapon in the standing arsenal of the houses of Congress will I think be routinely deployed in a way that harms both the separation of powers and undermines the presidency.
Chief Justice Roberts: (46:44)
Justice Alito: (46:47)
Could you apply the standard that you think is appropriate to the subpoena from the house intelligence committee?
General Wall: (46:59)
Sure, Justice Alito. So there, the intelligence committee says that it’s investigating foreign influence in recent elections, but the subpoena goes back to 2010. It doesn’t link in any way to foreign transactions, and it targets only the president. I have no idea why one would serve a subpoena that broad both in breadth and duration if what one is concerned about is a far more specific topic that would apply I would think to federal candidates more generally and more narrowly to foreign transactions and to more recent transactions. And there was nothing in the red brief that explains the mismatch. On the other side, the financial services committee says it’s investigating money laundering after the 2008 financial crisis, but its subpoena only goes back to the middle of 2016. And again, it targets the president. None of this makes any sense if what you are doing is an aid of legislation.
Justice Alito: (47:52)
Justice Ginsburg referred to legislation concerning disclosure requirements that would apply to the president. And there’s also mention of conflict of interest legislation that might apply to the president. Does Congress have the power to regulate the president in these ways?
General Wall: (48:16)
I think it’s very unlikely on the conflict of interest side, Justice Alito, that even the DC circuit did not rely on that because of the serious constitutional questions it would pose if you disabled the executive from managing some part of the executive branch. I think the financial disclosures are the hardest. And I guess what I would say is if the house in its brief had explained with any specificity what it might want to do to the ethics and government act and why then it needs the president’s documents, we could have that debate. I think the room is probably narrow, but the United States is not saying there’s no room. But we don’t even get there because all they say is we might want to amend the EGA, CEG HR one, which was the bill the house passed before it even issued the subpoenas. And so it’s very hard to sort of shoot at a target in the dark. I don’t know what the house wants to do with any specificity. So it’s hard to say whether that’s valid legislation.
Chief Justice Roberts: (49:11)
Justice Sotomayor: (49:15)
Mr. Wall, that’s the issue, isn’t it? Which is, so Congress investigates. A, it doesn’t have a chance to determine what might be valid, and B, we don’t have the chance then to look at an actual law and say it may or may not be valid. You’re asking a court in the guise of a heightened review standard to speculate as to legislation that’s not in effect yet, but I want to go back to the subpoenas at issue and their breath. You note that the intelligence committee goes back 10 years, but I think it’s fairly common knowledge that Mr. Trump, before he was president, was thinking about running for president for a very long period of time. Why is it that Congress can’t believe that looking at long standing relationships and how those relationships changed or didn’t change is important to knowing what undue influence might be occurring?
General Wall: (50:24)
Justice Sotomayor, if it wants to do that, our submission is just a fairly modest one. It needs to do more than wave its hands about general purposes and say that the president would be a useful case study for perspective and generally applicable laws. Again, I’m not denying-
Justice Sotomayor: (50:39)
Mr. Wall, in what other setting does any investigative body have to do more than what was done here?
General Wall: (50:53)
I would point to the prosecutor in Nixon-
Justice Sotomayor: (50:56)
For private records.
General Wall: (50:59)
Well, this particular question hasn’t come up to the court for any constitutional context. But in Nixon, of course, the prosecutor had to show demonstrated specific need. In the Senate select committee case, the congressional committee had to show-
Justice Sotomayor: (51:13)
Please, I don’t want you to go to executive privilege cases. I want you to go to papers that indisputably have nothing to do with Mr. Trump while he was a private person. They’re not asking for these records post being president. They’re asking for these records pre being president.
General Wall: (51:37)
I think that makes the problem worse, not better, Justice Sotomayor. They’re targeting the personal life of the president before he was a candidate for office. That raises, granted somewhat different, but deeply troubling and equally problematic, constitutional concern that you won’t harass-
Chief Justice Roberts: (51:57)
Justice Kagan: (51:58)
Mr. Wall, I’d like to go back to your use of Clinton V Jones, because I had read that case differently. Of course Clinton says that you’re supposed to treat the president’s requests with respect when the president says like, I need a deposition scheduled at a different time, or can we have written interrogatories rather than a deposition. But the fundamental claim of presidential immunity or even presidential difference was rejected in that case. And I suppose what I’d like to know about your argument, I read your brief and I read the president’s own brief, and no place do you make a case as to why these particular subpoenas place a particular burden on the president such that he will be prevented from carrying out his constitutional responsibilities. And that’s what I took Clinton V Jones to be saying is that’s the kind of thing a president has to come in and show, a sort of case specific argument about burden on the president. And are you making that kind of argument at all?
General Wall: (53:10)
Well, yes and no. Not if what you mean by burden is sort of compiling and delivering the documents to the house. Yes if what you mean by burden is what I think Clinton V Jones says, which is harassing and undermining the president. Now exactly these subpoenas, well, I mean, I think [crosstalk 00:53:29].
Justice Kagan: (53:27)
[crosstalk 00:53:27] undermining the president. I mean, the point of some of those suits is presumably to harass and undermine the president. And the court let them go, let them proceed. And it said, the only thing we’re going to be concerned about is if you come in to us and say, in defending those suits, you’re going to be prevented from performing the responsibilities that we the nation need you to perform. Are you making an argument of that kind?
General Wall: (53:54)
Yes. In the courts below, when the house was pressed on the limits of its theory, it said that probably it could not draw the blood of the president or read his teenage diaries. The power that they are seeking and the burden they will impose in the aggregate on the president will I think reshape and transform the balance of the separation of power. So yes, we are saying that these subpoenas and certainly these subpoenas taken in the aggregate, once the house has this weapon, will harm and undermine the presidency of the United States, not just this president, the institution of the presidency going forward.
Chief Justice Roberts: (54:30)
Justice Gorsuch: (54:33)
Counsel, I believe in earlier discussions with Justice Alito, you indicated that Congress might be able to regulate in the area of financial disclosures of the president. And that is one of the interests the house has asserted here. What more would you require the house to do to assert that interest? What would be enough in your mind to demonstrate the heightened need you suggest is needed?
General Wall: (55:01)
I don’t think it has to go provision by provision, Justice Gorsuch, or anything like that. But I do think it’s got to describe the possible legislation with enough specificity to enable a meaningful judicial review so we know the president’s required to disclose certain things from the ethics and government act. If the house-
Justice Gorsuch: (55:18)
Let me stop you there. I’m sorry to interrupt, but let me stop you there. Let’s say the house says we’re considering legislation on whether to require presidential candidates to disclose their tax returns for a set number of years. Would that be sufficient and if not, why not?
General Wall: (55:31)
I think that might be, and then you’d have to look at what they were going after from the various campaigns. It wouldn’t get you anywhere near these subpoenas or targeting the president, of course, but at least in your hypothetical, they’d be identifying with some details, some specificity, what they were thinking about doing. And then it would tee up what I think is the hard constitutional question of what’s the space for Congress in regulating a constitutionally created officer like the president with respect to disclosures. And that’s frankly a hard question. That’s the hardest of all the possible legislation they pointed to. I don’t see how we can have that debate in this case because they haven’t even enabled meaningful judicial review. And that’s a fact that I think should cut against the house, not against the president.
Chief Justice Roberts: (56:22)
Justice Kavanaugh: (56:25)
Thank you, Mr. Chief Justice, and good morning, Mr. Wall. I want to make sure we touch on one of your procedural arguments. You say that the full house needs to authorize the subpoenas. The other side, the house argues that resolution 507 did so. What’s your response to that?
General Wall: (56:48)
The response, Justice Kavanaugh, is that 507, if you look at its terms, it’s both a rubber stamp and a blank check. It purports to authorize anything and everything that ever has been done or will be done by the committees. It falls short then even of the fairly meager resolutions in Rumley and Watkins, which at least described general purposes, general legislative topics, to get back to my colloquy with Justice Gorsuch, and here we’re talking about the president. So I know that three committee chairmen understood what they were doing. I don’t think 218 members of house have understood that they understand the gravity of the constitutional question they’re teeing up. And so the court often requires a clear statement from Congress when the separation of powers is at issue. We’d say the same thing here. That’s the cleanest and narrowest way to dispose of this case.
Justice Kavanaugh: (57:37)
Second question. History and practice matter quite a bit in separation of powers cases, as you know. Justice Ginsburg earlier cited precedent from Watergate and Whitewater, as did Justice Breyer. Can you respond? And those dealt with legislative subpoenas. Can you respond to those points about those precedents?
General Wall: (58:01)
Yeah. So for the first 200 years of the Republic, there’s nothing like this. The house’s examples either didn’t involve the president-
Justice Kavanaugh: (58:08)
What about, sorry to interrupt, but specifically Watergate and Whitewater?
General Wall: (58:12)
So that’s what I was coming to. I think the Watergate subpoenas were for official records, and obviously they were subject to a heightened need standard. The Whitewater subpoena is the closest analogy. It’s modern. It was never litigated. But I’ll grant, that subpoena looks very much like this one. I don’t think that there’s any historical precedent for it. And the concern, Justice Kavanaugh, again, if we go down this road and the houses of Congress can weaponize the subpoena power in this new way, that’s going to sit in the standing arsenal for use against the president and any other constitutionally created officer. And I don’t think it takes much imagination to know where that road will lead or that we will regret having taken it.
Chief Justice Roberts: (58:52)
Thank you, counsel. Mr. Letter.
Mr. Letter: (59:00)
Yes. Mr. Chief Justice, and may it please the court. I would like to jump right in and address some of the very key points that have been made by my friends here. Mr. Wall, my very good friend, Mr. Wall, said that the legislation here doesn’t match up. Mr. Wall referred the court to the wrong pages of our brief. If you look at pages 17 through 36, you see that we discussed in great detail the purposes of the investigations in the subpoenas. And indeed the DC circuit said that in telling terms, the house has put legislation where its mouth is. We have specifically provided bills. Mr. Wall said that the full house did not confront the subpoenas. Page 241 of the appendix. I refer you to where the house specifically referred to these very subpoenas, these specific ones. And I don’t think Mr. Wall really meant to say that the members, 218 members of the house, did not know what they were doing when they passed that.
Mr. Letter: (01:00:11)
That obviously is not a valid argument to be made. Then we turn to something that came out in answer to Justice Sotomayor’s question. Remember, the key records here, some of the key ones that we want, are ones that president Trump has not even seen. We want records from third party business entities, their analyses of, for instance, requests for loans. So these are documents that there’s no privacy interest in, no constitutional liberty interest, et cetera. Next, we do have limiting principles. The house very much does. This court’s precedent set those. Must be pertinent to a legislative purpose. Can’t violate constitutionally protected liberty interests or privileges. And can’t undermine the president’s ability to carry out his responsibilities.
Chief Justice Roberts: (01:01:11)
Let’s talk about the standard you propose. The quotes in your brief is that concern is subject on which legislation could be had. Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?
Mr. Letter: (01:01:32)
Your honor, I think the best I can do is refer you to the court’s decision in Kilborne where the court there said that Congress didn’t seem to put forward any possible legislation there. It had to do with bankruptcy proceedings that Congress was looking into.
Chief Justice Roberts: (01:01:49)
Well, do you think bankruptcy proceedings is a subject on which legislation could not be had?
Mr. Letter: (01:01:58)
Obviously, bankruptcy could be. But in the Kilborne case, this court-
Mr. Letter: (01:02:03)
But in the Kilbourn case, this court thought that no such reason had been put forward. But no, Congress’ legislative authority is extremely broad, especially because of its appropriation-
Chief Justice Roberts: (01:02:16)
Well, that’s what I’m suggesting, that your test is really not much of a test. It’s not a limitation. And it doesn’t seem, in any way, to take account of the fact they were talking about a coordinate branch of government, the Executive Branch. Do you have any alternative to that limitless test that would take account of the fact that you’re dealing with a coordinate branch of government?
Mr. Letter: (01:02:42)
Yes, I do, Your Honor. And by the way, the test that I’m referring you to was the test that this court had set about pertinent to a legislative purpose. But Your Honor, what this court said in Nixon versus GSA and a number of other cases, there would be a limit if Congress is interfering with the President’s ability to carry out his Article II functions. No such claim has been made here, nor obviously can it be made given-
Chief Justice Roberts: (01:03:07)
Justice Thomas: (01:03:09)
Hi, yes. Thank you, Chief Justice. Mr. Letter, I’d like you to discuss how the power, the legislative subpoena power is implied or how we arrive at that power. Because I think that’s part of why we’re wandering around in the wilderness, trying to determine what standards we are to use.
Mr. Letter: (01:03:34)
Your Honor, this court has explained in quite a few cases, I think, Watkins, Barenblatt, others, that the Congress’s legislative power, I mean investigative power, which stems from the British Parliament’s power, is an obvious and integral part of legislation. We obviously can’t have Congress passing legislation in ignorance. And this court has said, for instance, most recently in franchise tax board, that just because a power is something to be implied doesn’t mean that it’s not important. For instance, this court’s power of judicial review. That’s nowhere mentioned in the Constitution. So the power-
Justice Thomas: (01:04:22)
Another example of a power that, a legislative power, that is implied.
Mr. Letter: (01:04:35)
I’m sorry, Your Honor. I’m not coming up with something right now off the tip of my tongue.
Justice Thomas: (01:04:39)
That’s okay. Can you give me the earliest example you have about Congress issuing a legislative subpoena?
Mr. Letter: (01:04:50)
Congress investigated the St. Clair expedition. It didn’t actually issue a subpoena in that case, but it’s equivalent of the time. And President Washington consulted with his closest advisors and decided to provide Congress with every single thing that it requested. So that was just several years into the-
Justice Thomas: (01:05:12)
What’s the first example of Congress issuing a legislative subpoena to a private party for private documents?
Mr. Letter: (01:05:20)
I’m sorry, Your Honor. The Watkins decision has a lengthy discussion of that. I don’t have off the top of my head the very first one, but my memory is that this court describes that in great detail in Watkins.
Justice Thomas: (01:05:34)
Chief Justice Roberts: (01:05:36)
Justice Ginsburg: (01:05:42)
The concern has been expressed that Congress could be using this subpoena power to harass a political rival. So what is your answer to what is the principle, the limiting principle, that would say legitimate legislative purpose, yes, looking toward enacting a law, but not to harass a President from the opposing party?
Mr. Letter: (01:06:18)
Two answers, Your Honor. First is this court’s decision in McGrain, which is extremely important here. Now, McGrain was not seeking papers of the president, but there the lower court struck down, said the subpoena was no good, the congressional investigation was no good because it was inspired by politics. This court absolutely and flatly and unanimously rejected that as a reason that it couldn’t be done. And then the other is Clinton vs. Jones, where this court said if there is harassment, the courts can take care of that. And that’s the answer to the Justice Department’s entire brief. There is no responsible claim here that all that’s going on is harassment. And if there is, this court has said, “We’re here.”
Justice Ginsburg: (01:07:13)
Chief Justice Roberts: (01:07:14)
Justice Breyer: (01:07:14)
Thank you. In respect to the authorization, was there proper authorization by the full house of the legislative subpoenas? Two points. One, Rumely says look at the subpoena and its authorization as at the time the subpoena was issued, here, perhaps, the time that it was challenged first, before the later authorization in the full house was passed. Two, compare it with the Senate Select Committee on Presidential Campaign Activities v. Nixon. Look at the authorization. The authorization there is highly detailed, highly specific, and it suggests they could go after the information held by any person, presumably including the President. This authorization, which came after the challenge, in fact, writes a pretty blank check for anything without detail. Now, those are arguments made by the other side. I’d like to hear what you say.
Mr. Letter: (01:08:31)
Thank you, Justice Breyer. Several responses. And I’ll try to be quick. First, McGrain. This court said very, very clearly you don’t just look at the authorization. There was no authorization there. Second, yes, Resolution 507 is in part broadly worded, but it is extremely specific in its third whereas clause. Right there on page 241, it refers to these very specific subpoenas. And in addition, authorization is much different now in the modern Congress. The modern Congress has authorized committees to issue subpoenas and those committees then have in general delegated that authority to its chairs. So the modern Congress, there clearly is authorization to committee chairs to issue these subpoenas. And as I said, if there’s any doubt at all about that, the full House ratified these very specific subpoenas.
Justice Breyer: (01:09:43)
Before or after Rumely? I mean, before or after they were issued and challenged?
Mr. Letter: (01:09:50)
This is after they were issued and challenged. The issuance, as I said, is authorized by House rules, which this court has said it will not examine. And then the full House, because there were arguments made, the full House said, “Oh no, we authorize these exact subpoenas. We ratify the issuance of these subpoenas.” It is extremely clearly worded, page 241A of the petition appendix.
Justice Breyer: (01:10:22)
Chief Justice Roberts: (01:10:23)
Justice Alito: (01:10:25)
Mr. Letter, I was somewhat baffled by your answer to Justice Ginsburg about the use of congressional subpoenas for purposes of harassing a President. Your final answer was the courts can take care of that. But that’s the issue here, whether something should be done to prevent the use of these subpoenas for the harassment of a President. But could you explain what you meant?
Mr. Letter: (01:10:52)
Absolutely, Justice Alito. This court in Clinton versus Jones and in other cases like Nixon versus GSA, has said, “We are here to protect the President if there is harassment from Congress or private individuals.” And here, there clearly though is, we think, valid legislative purposes, the four courts below all found that there was.
Justice Alito: (01:11:20)
I don’t want to cut you off, but I have very limited time. So your answer is that the protection against the use of a subpoena for harassment is simply the assessment whether the subpoena is relevant to some conceivable legislative purpose?
Mr. Letter: (01:11:39)
Correct, that’s what the court has said. But also again, Clinton versus Jones and Nixon versus GSA-
Justice Alito: (01:11:44)
That’s not much protection. In fact, that’s no protection, isn’t it?
Mr. Letter: (01:11:48)
It is protection, Your Honor, if what Congress is doing is interfering with the President’s ability to do his job. These subpoenas are to private parties. President does not need to do anything-
Justice Alito: (01:12:00)
But when you talk about interfering with the President’s ability to do his job, you mean this is going to take up too much of his time? Or does that include the potential for the use of subpoenas solely for harassment and political purposes?
Mr. Letter: (01:12:15)
Your Honor, if they were solely for harassment, then they wouldn’t meet the standards of they have to be pertinent to a legislative purpose. So I think the combination of all of those provides ample protection, but there’s no-
Justice Alito: (01:12:29)
But you were not able to give the Chief Justice even one example of a subpoena that would not be pertinent to some conceivable legislative purpose, were you?
Mr. Letter: (01:12:44)
As I said, Your Honor, that’s correct because this court itself has said Congress’s power to legislate is extremely broad, especially when you take into account appropriations.
Justice Alito: (01:12:55)
Well, so the end result is that there is no protection whatsoever in your view. And maybe this is the correct answer. But in your view, there is really no protection against the use of congressional subpoenas for the purpose of preventing the harassment of a President, because the only requirement is that the subpoena be relevant to a conceivable legislative purpose and you can’t think of a single example of a subpoena that wouldn’t meet that test.
Mr. Letter: (01:13:24)
No, Your Honor, because remember that there may be constitutionally based privileges or things like executive privilege-
Justice Alito: (01:13:33)
All right. Well, there might be constitutionally based privileges. Which constitutionally based privileges apply to a subpoena for records in the hands of a third party?
Mr. Letter: (01:13:45)
There could be, Your Honor-
Justice Alito: (01:13:46)
What are they? Would you name one?
Mr. Letter: (01:13:51)
Well, it seems to me executive privilege could enter in. State secrets privilege could enter in depending upon the specific circumstances, Your Honor.
Justice Alito: (01:14:03)
Well, let me ask you one more thing if I can and there’s time. Are there any limits on using a President’s records as a case study relating to the need for legislation? So for example, if the salary and the net worth of a future president before election was that of a person who would be regarded as middle class and Congress says, “We want to study possible revisions of tax laws and the provision of services to members of the middle class so we’re going to subpoena all available information about the assets, income expenditures, and services obtained by this sitting president and his family for purposes of considering that legislation.” Would that be permissible?
Mr. Letter: (01:14:49)
It certainly could be, Your Honor. So here, that’s a very good question, here remember the Financial Services Committee is doing an extremely broad investigation of a financial services sector and there’s massive public reporting that before he became president, President Trump’s personal records and his businesses and his family have been heavily involved in those very activities and were investigating numerous other banks and individuals having nothing whatsoever to do with the President. This is part of a much larger sector-wide, industry-wide investigation. And President Trump is-
Chief Justice Roberts: (01:15:30)
Justice Sotomayor: (01:15:35)
Council, we have said that personal records, with the aim of making the President a case study, threatened to run afoul of this court’s teaching that there is no congressional power to expose for the sake of exposure. And the other side points to some hypotheticals that are but troubling. The President’s transcripts, simply to pass on educational reform legislation. Or subpoenas of his personal medical records, simply to enact general healthcare reforms. Tell me what we say to ensure against those hypotheticals and against a proposed subpoena that might be just for the sake of exposure.
Mr. Letter: (01:16:33)
Your Honor, a couple of answers. One is yes, you said just for the sake of exposure is no good. But this court said that exposure involving government activities can be. Pertinence would be the key, pertinence to a legislative purpose. And here, the Intelligence Committee, there’s an obvious need to focus on the President’s financial records to determine if the President is subject to foreign leverage. It’s obvious that that ties in with that legislative purpose. So pertinence-
Justice Sotomayor: (01:17:12)
Let me put this, I’m sorry to interrupt you, but we’re limited in time. On that issue of what laws are possible, I can see the argument on conflicts of law. But aren’t there are already a lot of disclosure laws in place? How could this investigation help improve those or change those?
Mr. Letter: (01:17:37)
I assume what Your Honor is referring to is disclosure laws by the President. And so, we would have to look to see what exactly what the Oversight Committee was looking at. Do we need better laws about conflicts of interest? Do we need better laws about, for example, a President dealing in contracts with government agencies? The Congress could limit government agency’s ability to enter into or keep contracts with elected public officials. In addition, Congress maybe would want to provide for more exposure of assets and conflicts of interest.
Justice Sotomayor: (01:18:22)
One last question. Was the breadth of the subpoenas litigated below?
Mr. Letter: (01:18:28)
Yes, Your Honor. Yes, Your Honor. Those exact claims were made and they are discussed in great detail by the Second Circuit and the DC Circuit. So those were fully litigated below.
Chief Justice Roberts: (01:18:42)
Justice Kagan: (01:18:44)
Good morning, Mr. Letter. In talking to the Chief Justice about the limits on congressional power, you said, and tell me if I’m quoting you correctly, you said that a subpoena couldn’t impair the president in carrying out his constitutional functions. Is that right?
Mr. Letter: (01:19:01)
Your Honor, there would have to be a balance there.
Justice Kagan: (01:19:06)
Okay. But that’s what we should be looking to. And then you said no such claim has been made or could be made. And I also took the briefs not to be making that claim that this subpoena would impair the president in carrying out his constitutional functions. But Mr. Wall told me that he was kind of making such a claim because he thought that this subpoena would undermine the President in his job. And I guess I would like you to comment on that.
Mr. Letter: (01:19:38)
Your Honor, it’s fascinating because I wrote a note specifically on that. That argument was not made in the Justice Department’s brief, to my knowledge, anywhere. My friend, Mr. Wall, mentioned it here, but there’s no way that this could interfere with the President because he doesn’t have to do anything. This is a subpoena to two banks and an accounting firm. And as I said before, in fact, some of the key documents we want, the President probably has never even seen or doesn’t even know that they exist. We want to know banks’ analyses of his request for a loan, internal bank analyses. But yes, Your Honor, that argument was not made in the briefs.
Justice Kagan: (01:20:18)
Okay. And if I could get you to talk about the history that some of your colleagues have talked about, what do you think the history shows us with respect to this issue?
Mr. Letter: (01:20:29)
Your Honor, very briefly, what it shows is ties in with a key principle of law that this court has said of constitutional interpretation. History can help inform what the Constitution means. There is a lengthy history of presidents, either voluntarily or not voluntarily, complying with requests for information by Congress. And we went through Presidents Washington, Jackson, Buchanan, Grant. And then more modern times, Nixon, Carter, Reagan, and Clinton. All complying with, in various ways, either voluntarily or not. For instance, in the Nixon case, Nixon voluntarily provided certain tax returns. He didn’t provide all of them. Congress then got more, pursuant to statutory authority, like a subpoena, from President Nixon and his family’s tax returns. I don’t think that either the Justice Department or Mr. Trump answered that hypothetical. History really matters here. And it shows that the arguments being made here by President Trump are astonishingly … It asks you to ignore a massive amount of history.
Justice Kagan: (01:21:53)
Chief Justice Roberts: (01:21:54)
Justice Gorsuch: (01:21:54)
Good morning, Mr. Letter. Normally, we use law enforcement investigative tools like subpoenas to investigate known crimes, not to pursue individuals to find crimes. That’s a principle you’re well familiar with from your time at the Department of Justice. And I’m wondering what limiting principle you offer us here that can prevent that danger. The first one was it has to be pertinent to a legislative purpose, but I think as we’ve explored, that’s very, very broad and maybe limitless, some would suggest on the other side, at least. Constitutional privileges, if you’re investigating someone in their private capacity, they’re going to be few. Maybe attorney, client privilege, things like that. And it can’t be burdensome, I heard was your third. But in an age where everything’s online and can be headed over on a disk or a thumb drive, that pretty much disappears too. So what is left to protect that important value that I know you share?
Mr. Letter: (01:23:08)
I do share that, Your Honor. And by the way, burden here, none of the subpoena recipients have claimed burden. Your Honor, I answer it this way, because again, it has to be … I’m going to stick with the pertinent to legislative purpose because for example, Congress did a massive investigation of what happened at 9/11. Obviously, a lot of that-
Justice Gorsuch: (01:23:30)
Let me stop you there if that’s where you’re going to go. And I thought that might be, Mr. Letter. And I apologize for interrupting. But I would think a federal prosecutor might say that an investigation of an individual could be pertinent to a criminal investigative purpose too, because there are so many federal crimes out there and it’s possible this person jaywalked or failed to pay his taxes or whatever his concerned is. That’s a legitimate investigatory purpose for sure. So what takes us out of that realm and that concern?
Mr. Letter: (01:24:09)
Your Honor, I think this will largely depend on the courts. The only thing I can suggest that takes it out of that concern is, as we know, Congress can’t prosecute. But as we know, it clearly can look into criminal activity in order to figure out whether the criminal laws should be changed. The most obvious example would be this court’s decision just a little while ago, overturning a key criminal conviction involving white collar crime. Obviously, Congress could do a very thorough investigation of that to determine whether to pass a different criminal law statute that would actually make it a crime to do what was done in Bridgegate. So it’s going to be very difficult to separate the two and say that what Congress is doing in looking into criminal activity for the purposes of determining if the FBI is doing a good job and needs more money, or whether to amend the criminal statutes. There’s going to be an extremely rare case where that is going to be invalid on Congress’s part.
Chief Justice Roberts: (01:25:20)
Justice Kavanaugh: (01:25:23)
Thank you, Mr. Chief Justice and good morning, Mr. Letter. I want to follow up on the line of questioning that several of my colleagues have pursued. The Chief Justice, Justice Ginsburg, Justice Alito, Justice Kagan, and others, which I think come down to the idea of limitless authority and how to deal with that. The other side says that allowing these subpoenas and subpoenas like these, say for medical records, would be a grave threat to future presidencies. It would be open season, they say, on private records of anyone who is president and maybe other government officials too. And they worry about the harassing nature of subpoenas like that. You say, and Justice Gorsuch which was just exploring this, it’s okay so long as it’s pertinent to a legislative purpose. But I think everyone has explored with you that just about everything can be characterized, in terms of a subpoena, as pertinent to a legislative purpose. I don’t think you could answer the Chief Justice’s question about something that wasn’t.
Justice Kavanaugh: (01:26:38)
And the question then boils down to how can we both protect the House’s interests in obtaining information it needs to legislate, but also protect the presidency? How can the court balance those interests? I guess the thing I would say is why not employ the demonstrably critical standard or something like that, this is what the other side would say, as something that’s borrowed from a different context, but that might serve to balance these strong competing concerns here?
Mr. Letter: (01:27:08)
Your Honor, that’s a very good question. I have several responses. The first one goes to the last thing you said about why not employ a demonstrably critical test. I don’t know how the courts would do that without violating the separation of powers. I was reminded recently by the congressional leaders that often, they’re doing investigations. They don’t know where the legislation might go at that point. So I don’t know how you would force Congress to show some sort of demonstrably critical-
Justice Kavanaugh: (01:27:47)
Well, wouldn’t it be the same way that it’s shown in an investigation where executive privilege is asserted? And the demonstrably critical standard in that context has been the tried and true method for about 50 years.
Mr. Letter: (01:28:01)
Because then, Your Honor, you could look at, you could demand that the Executive Branch show that its reason for seeking something outweighs the executive privilege claim. But here, and remember, we’re not dealing with executive privilege at all. These are financial business records. It’s difficult to see how these could ever come within that kind of balance that would override Congress’s authority to do investigation. The one other thing I can suggest, obviously, as this court has suggested, I believe, is the voters. But also Nixon versus Fitzgerald, this court said that the president has absolute immunity from certain kinds of claims. The court said specifically that one of the reasons that’s okay is because we have congressional oversight of the president. This court specifically use that to justify absolute immunity for the president in other areas. And last is Clinton vs. Jones. This court-
Justice Kavanaugh: (01:29:04)
Can I interrupt right there? What about medical records?
Mr. Letter: (01:29:09)
Your Honor, medical records of the president would, I think, almost always be not pertinent to valid legislative purpose. On the other hand-
Justice Kavanaugh: (01:29:19)
Why not? Can you just-
Mr. Letter: (01:29:19)
Look at the 25th amendment, they certainly would be pertinent.
Justice Kavanaugh: (01:29:23)
Why wouldn’t they be pertinent to, say, ethics legislation, healthcare legislation, or the like, in your view?
Mr. Letter: (01:29:33)
Your Honor, I’m having difficulty thinking of a hypothetical where if Congress is examining and deciding on amendments to the Affordable Care Act, how the President’s personal medical records would be relevant to that. It’s to say the most important public health statute, many, many decades, I don’t think would be affected by that at all. So I’m sure we can come up with some odd hypotheticals where presidential health would clearly be relevant, maybe changing the statutes that involve the succession of when a president becomes incapacitated, something like that, I suppose. But in general, Congress, there’ll be no valid reason for Congress to be asking for the president’s personal medical records that I can think of.
Chief Justice Roberts: (01:30:30)
Thank you, Council. Mr. Letter, I know you will be delighted to learn that we have time for additional questioning. So I think I’ll begin with myself and then we’ll go through in order and just see how far we get. One thing that hasn’t come up is the fact that we’re dealing here with three separate committees, and we’re concerned, as you’ve recognized, with the potential for harassment. And how does that play in? I mean, at what point does the number of committees investigating the president’s personal papers become a factor in an analysis of the issue of harassment?
Mr. Letter: (01:31:12)
Your Honor, I am very pleased there’s more time for questions. But Your Honor, it would seem to me that there are situations, again, you’d have to look to, Clinton vs Jones. When does it reach a particular stage? We’re nowhere near that here. And in fact, the subpoena by the Intelligence Committee matches the subpoena from the Financial Services Committee to Deutsche Bank, because, specifically, Intelligence not want to cause too much of a burden to the subpoena-
Chief Justice Roberts: (01:31:45)
What about, as you know, very shortly in the second case, we’re going to talk about subpoenas from district attorneys. How does that factor in? I mean, should those be counted in the balance in terms of when congressional subpoenas become harassment?
Mr. Letter: (01:32:04)
Definitely not, Your Honor, since we had nothing to do with this subpoena in advance. We had no contact with the city of New York before that subpoena was issued. And so I don’t know how that would tell us anything about what the House of Representatives-
Chief Justice Roberts: (01:32:22)
What about the Senate? I suppose they can issue subpoenas too, can’t they?
Mr. Letter: (01:32:26)
Of course, Your Honor. Yes.
Chief Justice Roberts: (01:32:29)
How do you balance that? You’ve got, in this case, three different House committees seeking subpoenas. You’ve got the district attorney in New York. Depending upon party composition of different bodies in the future, you might have the Senate joining in. How do you measure harassment in a case like that?
Mr. Letter: (01:32:51)
Your Honor, I think what you would do is if these were subpoenas from the House and the Senate, a massive number of them, going to the White House, then there certainly would be at a certain point where it would affect the ability-
Mr. Letter: (01:33:03)
And there certainly would be at a certain point where it would affect the ability of the White House and the president to function. There’s no doubt about that, but the subpoenas are to three private businesses involving-
Chief Justice Roberts: (01:33:12)
Thank you. Justice Thomas, any further questioning?
Justice Thomas: (01:33:15)
Yes. I’d like to follow up on that Mr. Chief Justice. Mr. Letter, at some point there’s a straw that breaks the camel’s back and it seems as though you’re saying that we should look at these in isolation as opposed to in the aggregate. Why wouldn’t we look at all of them and look at the full effect and whether at some point it debilitates the president?
Mr. Letter: (01:33:46)
I’m sorry. I must have misspoken. I meant to answer the Chief Justice’s question by saying yes. If there are a massive number of subpoenas from the house and the Senate to the white house and the white house can come in and say, “Look, we can’t do anything. All we’re doing is answering subpoenas all day long. This is impacting the ability of the president to do his job.”
Justice Thomas: (01:34:15)
Why would it be limited to the house and the Senate? I mean, it could be every grand jury. It could be every prosecutor. The concern that we had in the Clinton case is at some point, this thing gets out of control. One could be manageable, but 100 could be impossible.
Mr. Letter: (01:34:35)
Your honor is right. And therefore, if our subpoenas were on top of numerous others from grand juries around the United States, you could look at that. But let me emphasize one more time, our subpoenas are the three are not to the president. They are to private business entities. Nothing is required of the president here for the subpoenas to be fully complied with. Not a single thing is required of the president or the white house.
Justice Thomas: (01:35:02)
But I think we all know it’s about the president.
Chief Justice Roberts: (01:35:03)
Justice Ginsburg, any further questioning?
Justice Ginsburg: (01:35:10)
No, I’ll pass.
Chief Justice Roberts: (01:35:12)
Justice Breyer: (01:35:13)
Yes. He has emphasized it goes to a private person and it’s for tax returns, but the subpoenas that I’ve seen go far beyond that. They apply to 15 Trump-affiliated entities. They asked for all documents related to opening of accounts, due diligence, closing, requests for information by other parties, et cetera. Now, that’s a lot of information and some of it’s pretty vague and if somebody subpoenaed you for that information or subpoenaed your tax accountant, or subpoenaed somebody in your business, wouldn’t you at least want to know what was being turned over? Wouldn’t you want to ask them, and might that not take time, and might that not take effort? So, my problem is there may be burdens here, third party or not and not just political burdens. The job of the house and Senate in part, as the president, is politics. That doesn’t bother me, but the Clinton vs Jones information does bother me. And the fact that what I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions, that bothers me. So, what do I do?
Mr. Letter: (01:36:26)
Justice Breyer, I fully understand that concern. None of the subpoena recipients have complained about burden. The reason these subpoenas go back a ways is because as you know-
Justice Breyer: (01:36:36)
I’m sorry to interrupt you. I’m not talking about their burden. I’m talking about the president’s burden in having to monitor, decide if there are privileges, figure out what his answers are to all those documents you are requesting, which go, in my opinion, way, way, way beyond just tax returns.
Mr. Letter: (01:36:56)
Two answers, your honor. Yes, we’re going far beyond tax returns, but no privilege claim has been made in this case. No party, nobody has raised a privilege claim. Second is we’re investigating, for instance, among other things, money laundering. Money laundering requires looking at a whole range of financial activity. What we’re doing here is exactly the kind of thing that Senate and House staff do when they’re looking at a financial sector and what kinds of reforms should be made to the banking industry. But let me say one more time. There has been no claim of privilege here. There has been no claim that there is a burden. No claim whatsoever. So, those may be relevant in different cases, but certainly not this one.
Chief Justice Roberts: (01:37:47)
Justice Alito: (01:37:50)
If one house of Congress were to subpoena personal records in the hands of a third party regarding a member of the other house, let’s say someone in a leadership position in the other house, do you think that the doctrine of separation of powers would impose any limitation on that subpoena?
Mr. Letter: (01:38:16)
Very interesting question. Your honor, the first thing that comes to mind though, is wouldn’t that violate the speech or debate clause? Remember, no member of either the House or Senate can be questioned anywhere else. So, if there’s a request for records, if it’s tied in any way to the legislative functions of that Senator or house member that would be invalid.
Justice Alito: (01:38:43)
Well, let’s say that this is similar to the subpoenas here. So, they don’t have anything to do with the performance of a legislative function. They are records regarding the personal activities of this individual, purely personal activities. And we can even say that they concern things that were done before the person was elected to Congress.
Mr. Letter: (01:39:08)
But part of your hypothetical include that they would nevertheless be pertinent to a legislative purpose?
Justice Alito: (01:39:17)
No. Pertinent to a legislative purpose. The committee wants to use someone in the leadership position in the other house as a case study for possible legislation.
Mr. Letter: (01:39:29)
If it met then your hypothetical, I think that would be a valid subpoena. I’m not aware that it has ever happened in the history of the House or Senate. I’m not, I don’t know of anything that would be like that.
Chief Justice Roberts: (01:39:47)
Justice Sotomayor, anything further?
Justice Sotomayor: (01:39:50)
Yes. That’s the whole point though, isn’t it? Justice Alito is raising this hypothetical because he says shouldn’t then we look at history? And it’s only modern history where committees have asked for personal papers, so he presumably would discount that and he would say, shouldn’t we respect the separation of powers that what’s personal to the president is similarly personal to a Congress person?
Mr. Letter: (01:40:24)
Justice Sotomayor, I have to disagree strongly with one thing you said, a key part. No, we have history of Congress seeking personal papers of Jackson, Buchanan, Grant, et cetera. No, there’s been lots of seeking of personal papers by Congress for many, many decades. This is not just a modern practice at all.
Chief Justice Roberts: (01:40:49)
Justice Kagan: (01:40:52)
Mr. Letter, I’m wondering if I could ask you to comment on a potential difference between on the one hand, the oversight and intelligence committee subpoenas and on the other hand, the financial services subpoena. The first two subpoenas addressed the president directly. The financial disclosures that the president makes, conflict of interest, foreign involvement in presidential campaigns. But the banking committee, financial services committee, was taking a much broader scope. And when that’s true, when the Congress doesn’t seem to be looking into the president, but in a much broader topic, might there not be some heightened need for Congress to say why it is that they’re focusing on presidential records for that purpose?
Mr. Letter: (01:41:48)
Your honor, I think that still would raise major separation of powers problems as a court would ask chairmen of various committees to come and testify as to what they were doing and why. You’re certainly right in your description. There are 11 subpoenas issued by financial services to members, banks, et cetera. Only three subpoenas, two entities have to do with the president. This is a much, much broader investigation. And last is there’s massive public reporting about the subjects of these subpoenas and their banking practices and Deutsche bank and Capital One have both been sanctioned many millions of dollars by banking regulators for failing to properly comply with money laundering law.
Chief Justice Roberts: (01:42:52)
Justice Gorsuch, anything further?
Justice Gorsuch: (01:42:54)
No, Chief. Thank you.
Chief Justice Roberts: (01:42:56)
Justice Kavanaugh: (01:42:59)
Yes. Thank you, Chief Justice and Mr. Letter. I want to follow up on Justice Alito’s question.
Justice Kavanaugh: (01:43:06)
And this really goes to the fact, I think that there’s concern about what the limiting principle is here. I think pertinent to a legislative purpose is almost no limiting principle at all. At least, I think that’s what some of the questions have explored. His hypothetical about a committee would start subpoenaing members of Congress of the other house or of the other party and you said, “Well, that hasn’t happened.” But isn’t the whole point that once you start down this road, and this court articulates, too low a standard that something like that will start happening. That’s the concern that I heard identified or that I took away from that hypothetical. So, I want to give you a chance to respond to that hypothetical, why it wouldn’t spiral.
Mr. Letter: (01:43:57)
I greatly appreciate that chance, Justice Kavanaugh. Two responses. First, remember exactly what this court did in Clinton vs Jones. I was on one of the losing briefs there, but this court said, “We’re going to let this happen, but the courts will monitor the situation and if there are abuses, the courts are still here.” In addition, Justice Alito’s hypothetical, I also realize it might be there getting into things like privileged information or information involving constitutional liberty interests. And this court has struck down criminal convictions, et cetera, for subpoenas that do involve-
Justice Kavanaugh: (01:44:42)
Well, if it was personal records exactly identical to the personal records here but from members of Congress, none of those would apply, presumably at least under what you’ve articulated so far today.
Mr. Letter: (01:44:55)
I think that’s right, but again, I come back to Clinton vs Jones. This court issued a very clear decision saying, “We’re going to allow this one, but obviously the courts are going to monitor this.” So, if contrary to what has happened in the past over our lengthy history, if there are situations when the president’s ability to do his job is being undermined, thank goodness the courts still exist and they are there to take care of it.
Chief Justice Roberts: (01:45:30)
Mr. Letter, would you like to take a minute to wrap up?
Mr. Letter: (01:45:35)
You Honor, I greatly appreciate that. I’m sorry, just flipping back to my notes. I apologize. As I was saying before, remember that some of the key records here are ones that the president has never seen and never had anything to do with and we ask the court to focus on the specific subpoenas in this case, because we’re not dealing with what ifs here. We’re not dealing with situations like a lot of the justice department argument focuses on. As I said before, fortunately, this court exists to fix those kinds of situations should they arise.
Chief Justice Roberts: (01:46:21)
Thank you, Mr. Letter. Mr. Strawbridge, you have two minutes for rebuttal.
Mr. Strawbridge: (01:46:27)
Thank you, Mr. Chief Justice. My friend from the other side struggled with every hypothetical that he was given about his ability to set some sort of limiting principle or some category of information or documents about the president that would not be obtainable under his theory. And I think that’s very telling because there are no limits to their theories. In particular, let’s just consider the example that was given regarding medical records. There’s no reason under his theory why the president and his family and his grandchildren could not be declared useful case studies and therefore Congress would send out a subpoena for their medical records. For that matter, the president eats and drinks like everybody else and Congress naturally has the ability to regulate food safety, but that does not mean that Congress can subpoena medical records or even the president’s DNA. My friend refused to even rule out that hypothetical categorically below.
Mr. Strawbridge: (01:47:17)
I think it’s telling that he can’t provide any meaningful limit today. I think that’s consonant with the fact that they’ve failed to consider what their actual legislative need is. This is an implied power in aid of legislation. It’s not a free ranging warrant to investigate wrongdoing going back 10 years. He cites to a laundry list of legislative proposals, almost all of which were passed before the subpoenas even issued and at no point in the argument section of their brief or today, does he try to tie any particular legislative proposals specifically to the president, the finances, let alone the vast swath of documents that they seek here.
Mr. Strawbridge: (01:47:55)
This is not an attempt to preserve the separation of powers, it’s an attempt to eviscerate that. On that point, I wanted to note in response to Justice Breyer’s question, which I may have misunderstood, the Senate Watergate committee in fact did serve congressional subpoenas under the legislative power and applying the heightened need standard, the DC circuit invalidated it, just as this court invalidated the attempt to hold in contempt somebody in Kilbourn when it violated the separation of powers, just as the lower courts every time separation of powers have squarely been presented, has invalidated it. These subpoenas are overreaching. They are an obvious distraction. They are going to multiply if this court accepts the path that the House is attempting to lay. The decisions below should be reversed. Thank you.
Chief Justice Roberts: (01:48:39)
Thank you, counsel. The case is submitted. [Silence 01:49:23]
Chief Justice Roberts: (01:51:58)
We’ll hear argument next in case 19635, Donald Trump versus Cyrus Vance. Mr. Sekulow?
Mr. Sekulow: (01:52:06)
Thank you, Mr. Chief Justice. And may it please the court, no County district attorney in our nation’s history has issued criminal process against the sitting President of the United States and for good reason. The constitution does not allow it. Temporary presidential immunity is constitutionally required by article two and accordingly, the supremacy clause defeats any authority the DA has under state law as to the president. The second circuit is wrong and should be reversed. If not reversed, the decision weaponizes 2300 local DAs. An overwhelming number of them are elected to office and are thereby accountable to their local constituencies. The decision would allow any DA to harass, distract, and interfere with the sitting president. It subjects the president to local prejudice that can influence prosecutorial decisions and to state grand juries who can then be utilized to issue compulsory criminal process in the form of subpoenas targeting the president.
Mr. Sekulow: (01:53:05)
This is not mere speculation. It is precisely what has taken place in this case and with the subpoena we challenge. In the argument just concluded, we asserted that the subpoenas did not serve a legitimate legislative purpose, and they were burdensome. Yet, the DA copied almost verbatim the house oversight committee subpoena with an additional 13 words, which seek the president’s tax returns. How revealing. The exact same language utilized by two congressional committees would subsequently be copied by the New York County District Attorney, covering the exact same documents, and sent to the exact same recipients, yet purportedly for two completely different reasons. Under article two or the heightened scrutiny standard under Nixon, the subpoena we challenge today cannot survive. As the second circuit concluded and the DA represents, the president’s being investigated for potential criminal violations in a state grand jury proceeding with the local DA issuing coercive criminal process against the president.
Mr. Sekulow: (01:54:07)
This he cannot do. Thank you, Mr. Chief Justice.
Chief Justice Roberts: (01:54:10)
Counsel, for all that, you don’t argue that the grand jury cannot investigate the president, do you?
Mr. Sekulow: (01:54:17)
We did not seek to have an injunction as was the case involving Vice President Agnew in enjoining the grand jury. We have targeted the utilization of the temporary immunity here to the subpoena. That’s correct.
Chief Justice Roberts: (01:54:31)
Well, in other words, it’s okay for the grand jury to investigate, except it can’t use the traditional and most effective device that grand juries have typically used, which is the subpoena?
Mr. Sekulow: (01:54:43)
You can’t use a subpoena targeting the president and under his article two responsibilities and the supremacy clause that as our view would be inappropriate and unconstitutional. So, we have not challenged the-
Chief Justice Roberts: (01:54:55)
I don’t understand. Your theory, in terms of distraction and all that, would seem to go much farther than resisting the subpoena. I don’t know why you don’t resist the investigation in its entirety or why your theory wouldn’t lead to that?
Mr. Sekulow: (01:55:12)
Well, our position is that criminal process against the president. And that’s what we’re talking about. That’s before the court. Criminal process targeting the president is a violation of the constitution. We did not seek to enforce an injunction or seek an injunction against the grand jury investigating the situation with the present.
Chief Justice Roberts: (01:55:34)
You focus on the distraction to the president, but I don’t know why. In Clinton vs Jones, we were not persuaded that the distraction in that case meant that discovery could not proceed. There are different things that distract different people, but I would have thought the discovery in a case like Clinton vs Jones, even though civil would be distracting, as you argue the grand jury proceedings are here.
Mr. Sekulow: (01:56:05)
Well, Clinton vs Jones of course, was in federal court. This is in state court. Clinton vs Jones was a civil case. This is a criminal case. As this court noted on page six 91 of its opinion, if in fact the Clinton vs Jones case had originated in a state court proceeding, it would raise different issues than separation of powers, concerns over local prejudice, and in footnote 13, this court said that any direct control by a state court over the president may implicate concerns that are different. They needed to branch disputes under separation of powers.
Chief Justice Roberts: (01:56:40)
Justice Thomas: (01:56:41)
Yes. Counsel, just a couple of questions. I’m interested in whether or not you can point us to some express language, either at the founding or during the ratification process, that provides for this immunity.
Mr. Sekulow: (01:57:00)
Well, there’s a couple. There was a colloquy between ultimately vice-president Adams and Senator Ellsworth, where they talked about process against the president and they took the position that any process against the president would be constitutionally problematic. Thomas Jefferson, of course, wrote in the letters he had regarding subpoenas that were issued in the Bird trial that allowing local magistrates to bander about a sitting president from North to South and East to West would interfere with the president’s responsibilities. And as this court, just in the previous argument, just stated, the burdensome nature of this is categorical. You can’t just look at the one subpoena. It is the potential for 2300 DAs, or just 1% of them. 23 days issuing process against the president. But the concern over interference from our founding with the president’s responsibilities was discussed and that’s why in the constitution there’s process to deal with it.
Justice Thomas: (01:57:54)
Does it make a difference when a subpoena goes to a third party?
Mr. Sekulow: (01:57:59)
Certainly not here. Number one, the respondents have either forfeited or waived it. They have conceited in their brief that they are seeking the president’s documents. These are the president’s documents. He is the real party in interest, and he has the burden, including review with his counsel over any existing privileges and what these documents might entail.
Justice Thomas: (01:58:20)
Mr. Sekulow: (01:58:21)
Thank you, Justice Thomas.
Chief Justice Roberts: (01:58:23)
Justice Ginsburg: (01:58:26)
We have said in the grand jury context that the public has a right to every man’s evidence. Is it your position that is save for the president? Every man’s evidence save for persons protected by privilege? And there is no privilege involved here. These are non-privileged, non-confidential papers. So, is the grand jury right to every man’s evidence inclusive of the president? That’s one question. And then I wanted you to answer specifically. Paul Jones has held that the president was not immune from civil suits for conduct occurring before he took office. If Paul Jones had sued in state court, rather than federal court, would Clinton have had absolute immunity?
Mr. Sekulow: (01:59:31)
To the second question, first is if I might Justice Ginsburg, this court in Clinton against Jones said that if the case was brought in state court, it would raise different issues of concerns over local prejudice. It was different than the separation of powers issues at play. It was issues involving the article two in the supremacy clause. So, the court said that on pages six 91 and footnote 13. With regard to every man’s evidence, this court has long recognized that the president is not to be treated as an ordinary citizen. He has responsibilities. He is himself, a branch of government. He is the only individual that is a branch of government in our federal system. So, our position is that the constitution itself, both in structure and text, supports the position that the president would be temporarily immune from this activity from a state proceeding while he is the President of the United States.
Chief Justice Roberts: (02:00:27)
Justice Ginsburg: (02:00:28)
Every man’s evidence excludes the President?
Mr. Sekulow: (02:00:33)
If I may, Mr. Chief Justice. Justice Ginsburg, it’s not that it excludes the president. The president is not to be treated as an ordinary citizen and this is a temporary immunity. This is for while the president’s in office and we think that is required by the constitution. Thank you.
Chief Justice Roberts: (02:00:49)
Justice Breyer: (02:00:51)
Well, you make a point of the 2300 district attorneys, but of course in Clinton vs Jones, there might be a million, I don’t know, tens of thousands of people who might bring lawsuits. Perhaps all of them were unfounded, but they could file the paper. Why isn’t it sufficient just to apply ordinary standards? I gather ordinarily any person who gets a subpoena can come in and say it’s unduly burdensome. And what counts as unduly burdensome for a doctor who’s in the middle of an operation might be very different from a person who’s a salesman. Similarly for the president, all the factors you raise could come in under the title unduly burdensome. So, why not just go back? Let the president say, “I’ll show you precisely how this is burdensome. I’m going to spend time, effort, working all these things out, figuring out what they mean, et cetera.” And if he shows undue burden and lack of connection, he wins and otherwise not. That’s true of every person. That’s Clinton V Jones. Why not the same here?
Mr. Sekulow: (02:02:03)
Justice Breyer, the hypothetical you just gave I think proves the point. By the time you were to prepare, review, analyze the various requests, just in these three cases that we have today, shows the burdensome nature, and then to require the President of the United States, as you raised in your concurring opinion in Clinton vs Jones, that burden is being met just by us being here, but to require the president to have to respond to each and every state district attorney that would like to-
Justice Breyer: (02:02:37)
No. He would hire you and he’d hire a lawyer to list what the burdens are. That wouldn’t take a lot of time and then he wouldn’t be burdened because you’d go in and say what the burdens are. And if you’re right, you win that case. They are saying, the other side, there are no burdens here. You say there are, so send it back and let them figure out what they are.
Mr. Sekulow: (02:03:01)
I think doing that establishes the problem with an analysis of a case by case analysis, for instance, in this very case, in this subpoena found on page one 18A 19 of the petition appendix, there’s a list of documents that are extensive. You would have to meet with the President of the United States. I mean, could you imagine just for a moment, Justice Breyer, and you said let’s assume the president were to hire me, that I’m going to call the President of the United States today and say, “I know you’re handling a pandemic right now for the United States, but I need to spend a couple of two to three hours with you going over a subpoena of documents that are wanted by here the New York County district attorney. I know you’re busy, but can you pardon me out two hours?”
Chief Justice Roberts: (02:03:42)
Counsel. Justice Alito?
Justice Alito: (02:03:45)
Are there at least some circumstances in which the U.S. Constitution would permit a local prosecutor to subpoena records containing information about a sitting president? So, think of this situation. Suppose that the prosecutor has good reason to believe that the records contain-
Justice Alito: (02:04:03)
The prosecutor has good reasons to believe that the records contain information that is not available from any other source about whether a third party committed a crime. And suppose that waiting until the end of the president’s term would make the prosecution of that crime impossible, or at least very difficult. Would you say that, at least in that circumstance, it would be permissible for the grand jury subpoena to be enforced?
Mr. Sekulow: (02:04:27)
In a state court proceeding, the issues of time and burden are still there. Now, in U.S. v. Nixon, that was a case where the president was a witness and the documents were asked for and this court said it should be handed over. But, in that case, it was very clear that the president was a witness and the attorney, the independent counsel there, Leon Jaworski, specifically stated to this court that the president was not a target. So, if we had a pure witness standpoint, while it’s a different case, the same constitutional principles would be at play, but here we’re talking about criminal process targeting a president.
Justice Alito: (02:05:08)
Well, was the answer that would be permissible if the prosecutor were willing to say that the president was not a target, whatever that means?
Mr. Sekulow: (02:05:19)
Well, it wouldn’t mean that it’s constitutionally permissible. It would raise different issues for the president to consider. But constitutionally, I think I have to be very clear here. That constitutionally under Article II and the supremacy clause, as to a state court proceeding here, we think, even as a witness, it raises serious issues. Obviously, a very different case than this, but serious issues nonetheless.
Justice Alito: (02:05:42)
Chief Justice Roberts: (02:05:44)
Thank you, counsel. Justice Sotomayor.
Justice Sotomayor: (02:05:47)
Counsel, it seems that you’re asking for a broadness of immunity that Justice Thomas pointed out is nowhere in the Constitution. And in fact, the Constitution protects against presidential interference with state criminal proceedings. It doesn’t allow the president to pardon offenders for state prosecutions, for state criminal convictions. And yet, I find it odd that you want us to rule that there’s essentially an absolute immunity from investigative powers, the height of a state’s police powers. And that we would permit a civil damages case by a private litigant, which we did in Clinton.
Justice Sotomayor: (02:06:43)
Prosecutors have ethical obligations. With respect to grand jury investigations, they have to keep those investigations secret. They can be prosecuted if they leak that information. Don’t we usually presume that state courts and state prosecutors act as they should and in good faith?
Mr. Sekulow: (02:07:06)
Even if you were to assume that-
Justice Sotomayor: (02:07:08)
If you let me finish. And doesn’t the president always have the opportunity to show that a particular subpoena in fact was issued in bad faith? President was given that opportunity here. And an affidavit, I understand, was filed under seal, setting forth the reasonable grounds for the investigation. I’m not sure why he’s entitled to more immunity for private acts than he should be for public acts.
Mr. Sekulow: (02:07:47)
Well, he’s the president of the United States. He is a branch of the federal government.
Justice Sotomayor: (02:07:52)
We only give judicial officers and congressional officers immunity for acts within their official capacity. If they don’t, if judges sexually harass someone, we’ve said, that’s not within judicial functions. They can be sued. If congressmen do the same thing, they can be sued. So, my question still comes. You’re asking for a broader immunity than anyone else gets.
Mr. Sekulow: (02:08:26)
Well, we’re asking for a temporary-
Chief Justice Roberts: (02:08:27)
We have time for a brief answer, counsel.
Mr. Sekulow: (02:08:30)
I will. We’re asking for temporary presidential immunity. I would point out that under New York State law, witnesses before a grand jury are not sworn to secrecy. They can state that they testified and what the nature of their testimony was. I’d also like to point out that there are hundreds of members of the United States Congress and a hundred members of the United States Senate. There is one president. Thank you.
Chief Justice Roberts: (02:08:51)
Justice Kagan: (02:08:53)
So, Mr. Secretary, you’ve said that a number of times and made the point, which we have made, that presidents can’t be treated just like an ordinary citizen. But it’s also true, and indeed a fundamental precept of our constitutional order, that a president isn’t above the law. From our first days, Chief Justice Marshall told Thomas Jefferson that he could be subpoenaed. He could be examined as a witness. He could be required to produce papers.
Justice Kagan: (02:09:18)
And so, I guess going back to Justice Breyer’s question, why isn’t the way to deal with these two things that the president is special, but that the president is like an ordinary citizen in that he’s subject to law, is to say, the president can make these usual objections that a subpoena recipient can make about harassment or about burden. And the court, in reviewing those, of course should take seriously the president’s objections and treat those with a certain kind of sensitivity and respect due to somebody who is a branch of government. Why isn’t that the right way to do it?
Mr. Sekulow: (02:09:56)
For two reasons. First, and I think that the case here is the perfect example, here the district attorney copied verbatim the House oversight committee and ways and means committee subpoena verbatim and, as we were just discussing in the previous case, the nature of that burden. For counsel, the president hiring counsel, for each time he could be subpoenaed as a witness, or in this particular case, as a target, would raise a serious impact on the president’s Article II functions. So, we think a categorical approach, and it’s very specific here, state process as to targeting the president’s documents in a criminal proceeding should be prohibited.
Chief Justice Roberts: (02:10:40)
Justice Gorsuch: (02:10:42)
counsel, I’d like to return to the question of Clinton v. Jones and how you would have us distinguish it. Yes, it took place in federal court, but it was a civil case. And, as has been pointed out, there could have been multiple versions of that in multiple different districts across the country. So, what’s different about that? How do we avoid the conclusion there that the president wasn’t subject to some special immunity, but here is?
Mr. Sekulow: (02:11:15)
I think the nature of the case that we’re dealing with here is not in a vacuum itself. There are other cases that the president is dealing with at the same time. So, what may have been a situation for President Clinton with a lawsuit, we have multiple litigation going on, including with the New York Attorney General.
Mr. Sekulow: (02:11:32)
So, I think the supremacy clause issue and the Article II issue here is pronounced, as this court alluded to, in Clinton against Jones, for that very reason, this idea that local prejudice would impact the president. So, the idea that we would wait until there’s more of these, we’re already here on four subpoenas or three subpoenas, three cases involving multiple subpoenas, much of which covers the same documentation. So, I think it, in fact, Justice Gorsuch, proves the point. We’re here because the House has asked for documents that now the district attorney is asking for. So, we are seeing that in real time, the burdensome nature of what’s happening here.
Justice Gorsuch: (02:12:12)
How is this more burdensome though than what took place in Clinton v. Jones? I guess I’m not sure I understand that.
Mr. Sekulow: (02:12:18)
Well, I mean, there’s a big distinction between a defendant in a civil case and a principle in a criminal case here by the state district local DA.
Justice Gorsuch: (02:12:29)
Let me stop you there. Yes.
Mr. Sekulow: (02:12:30)
Justice Gorsuch: (02:12:31)
There they sought the deposition of the president while he was serving. Here, they’re seeking records from third parties.
Mr. Sekulow: (02:12:39)
But they’re his records from third parties, Justice Gorsuch. The third party is simply the agent custodian of the president’s tax returns on the president’s statement of financial conditions. So, these are the presidents documents that they’re asking. And what’s to stop them from seeking a deposition of the president? Or, for that matter, asking the president to appear before a grand jury? Because, if the official versus unofficial was the deciding factor, and our view is that the initiation of process here interferes with the president’s official duty. But, if there was going to be this unofficial official distinction put in place, well then what stops the local district attorney from having the president testify, having the breasted president tried?
Chief Justice Roberts: (02:13:21)
Justice Kavanaugh: (02:13:23)
Thank you, Mr. Chief Justice. And good afternoon, Mr. Sekulow.
Chief Justice Roberts: (02:13:28)
Justice Kavanaugh: (02:13:30)
Just following up on Justice Gorsuch, just to explain, if you can, the rationale for having one rule for criminal and another rule for civil. Just assume there’s one criminal investigation. That’s it. And just explain the rationale for a different rule there.
Mr. Sekulow: (02:13:49)
Well, it’s not that it’s a different role. In this case, because it’s within the context of a state proceeding, you have Article II concerns and the supremacy clause issues, as this court alluded to in Clinton against Jones, that create the issues of concern about local prejudice. But the criminal nature of it creates a burden very distinct from a civil case, to be clear. Someone that has-
Justice Kavanaugh: (02:14:12)
Why is that?
Mr. Sekulow: (02:14:14)
Well, the idea that you are the subject or a target of a criminal case being brought against you is very different than a civil suit where, at the end of the day, it results in monetary damages, not a loss of liberty. So, there’s a big distinction between a civil case and a criminal case in that regard. And I think that impacts the standard upon which this court should be looking at the president’s temporary presidential immunity. We’re talking about stopping a process targeting the president, the subpoena targeting the president. That’s what we’re talking about here. It is that burden that is our concern.
Justice Kavanaugh: (02:14:50)
I think the other side says that the position you’re articulating is a bit more consistent with Justice Breyer’s concurrence in Clinton vs Jones than with the majority opinion. In his concurrence, he said that judges are hearing a private civil damages action against the sitting president may not issue orders that could significantly distract a president from his official duties. It’s pointed out that that language was not in the majority opinion. What do you think about how we should assess that part of Clinton v. Jones?
Mr. Sekulow: (02:15:29)
Well, I think civil discovery versus criminal processes are two very distinct processes. And, in a civil context, in a civil proceeding, we have the federal rules of civil procedure in the federal court that govern how that process goes forward. And federal judges can take into various considerations, especially dealing with the president.
Mr. Sekulow: (02:15:48)
This is a state proceeding initiated by the local district attorney against the sitting president of the United States. So, our concern here is, the nature of the proceeding itself is why we view categorically that a subpoena targeting the president and his records here would be violating-
Justice Kavanaugh: (02:16:06)
How do you deal… sorry to interrupt. How do you deal with statute of limitations issues?
Mr. Sekulow: (02:16:11)
Well, the statute of limitation issues, of course, are decided under New York State law. And, under New York State law, there would be procedures that could be utilized, if in fact, the DA were to elect to start a process like that, or if there were to eventually be action. But I need to say something.
Chief Justice Roberts: (02:16:27)
Thank you. Thank you, counsel.
Mr. Sekulow: (02:16:29)
Thank you, Mr. Chief Justice.
Chief Justice Roberts: (02:16:36)
General Francisco: (02:16:36)
Mr. Chief Justice, and may it please the court, at a minimum, a local prosecutor should have to show he really needs the president’s personal records to subpoena them for two reasons. First, as the court suggested in Clinton against Jones, state proceedings can pose a greater threat to the presidency. The 2,300 prosecutors across the country necessarily placed more emphasis on local interest than national ones. A special need standard ensures that federal courts balanced the prosecutors local need for information against national interests, including the president’s need to do his job.
General Francisco: (02:17:12)
Second, ordinary grand jury rules are not designed to protect Article II interests. That’s why in Nixon, the courts held a federal prosecutor had to show a demonstrated specific need for the information sought. A local prosecutor should at least be required to meet the same standard. As the court has repeatedly said, in no case of this time would a court be required to proceed against the president as against an ordinary citizen. And here, the district attorney hasn’t tried to meet the special need standard.
Chief Justice Roberts: (02:17:43)
General Francisco, we just heard Mr. Secular argue in favor of an absolute standard, no circumstances, no how. Your position is that, as you say, at a minimum, the special need test must be met. Of course, Mr. Sekulow is representing Mr. Trump. You’re representing the United States. You’re arguing for a more flexible standard. So, what was wrong with Mr. Trump’s position?
General Francisco: (02:18:15)
Your honor, I actually think that Mr. Sekulow makes a very strong argument on the immunity issue. We just don’t think it’s one that the court needs to address, at least until the prosecutor argues and attempts to meet the special need standard. Here, since the prosecutor hasn’t argued and isn’t arguing before this court that he needs the special need standard, there’s no reason for the court to address the broader immunity question. And it’s the court’s ordinary processes to try to avoid those broader and more difficult questions when possible. And here we think that the special need standard would resolve this case at this stage of the proceedings.
Chief Justice Roberts: (02:18:54)
Well, in a typical case with adequate allegations to say that the standards implicated, you would say that it goes before a court and the court will examine whether or not the criteria you talk about, which I gather is the test under Nixon, are met. And under Mr. Sekulow’s standard, would not immediately go before the court. He was looking for a ruling from us saying that he’s absolutely immune. So the court would have no business addressing such a case. That’s a very significant difference.
General Francisco: (02:19:27)
Well, your honor, I think that, in both instances, you would be able to make that argument to an Article II federal court under our argument. If the court found that the prosecutor hadn’t met the Nixon special need standard, it wouldn’t need to address the broader immunity question. If it did find that the district attorney met the special need standard, it would have to then address the broader immunity question. And all we’re saying is that, unless and until the special need issue is addressed at the threshold, there’s no need to address the broader immunity question in this case.
Chief Justice Roberts: (02:20:07)
Thank you, counsel. Justice Thomas.
Justice Thomas: (02:20:10)
Yes. General Francisco, you’ve mentioned the level of threat to the president or burden on the president. How do we determine that when it’s too much?
General Francisco: (02:20:25)
Well, your honor, here, I think there are a couple of things that you can take into account. First, the fact that we’re in state court, I think, is quite significant. Local prosecutors are necessarily going to put more emphasis on local interests than national ones. It simply reflects the manner in which they rise to office, through elections by local, relatively homogenous political communities. And in New York State, I would also add that the trial court judges are elected in a similar way. So, there you’ve already got this risk of local prejudice. And so, what the special need standard does is that it ensures that there’s a federal court that’s available to balance the local interests against the national ones, including the president’s need to do his job.
General Francisco: (02:21:11)
And then, secondly, it also has to do with the ordinary grand jury rules that would apply to a local prosecutor exercising his authority. Those rules were not designed to and they’re not sufficient to protect Article II interests since, under ordinary grand jury rules, a district attorney never has to make any particularized showing of needs. Instead, the burden is on the witness to show that the subpoena can have no conceivable relevance to any plausible subject of an investigation.
General Francisco: (02:21:42)
Now, that is a perfectly appropriate standard in the ordinary case. But the reason why Nixon applied the special standard above and beyond the ordinary rules of criminal procedure was because the court recognized that the president is the sole person in whom all Article II powers are vested. And so, he’s entitled to a measure of protection above and beyond the ordinary rules. And the special need standard is one of those measures of protection. To put point back to Justice Breyer’s, a very first place of concurrence in Clinton against Jones, I think Justice Breyer correctly predicted that this court would need to develop special protective procedures precisely for the president in the context of litigation like this.
Chief Justice Roberts: (02:22:25)
Justice Ginsburg: (02:22:28)
You stress that the states are subordinate sovereigns and they’re subject to the supremacy clause. But you don’t give any credit at all to the Tenth Amendment and the reserve powers of the state. That’s one question that I have. And, as far as the impact of the president is concerned, I think there is no case more dramatic than the Nixon tapes. Devastating impact on the president. He resigned from office. But yet, that was okay. So, I really don’t get it.
General Francisco: (02:23:17)
So, your honor.
Justice Ginsburg: (02:23:18)
General Francisco: (02:23:20)
So, your honor, in terms of the Tenth Amendment, all we’re saying is that Article II vests all executive power in a single president of the United States. He is the sole person in whom all executive power is vested in. So, that necessarily implies that there are limits on what others can do to unduly burdened him in his ability to do his job. So, all that the special need standard does is ensure that a prosecutor really needs the president’s information before he can enforce that the subpoena, since if he can’t even show that he really needs the information, he’s necessarily imposing an undue burden on the president and creating a serious risk of harassment. And, if you multiply that by 2,300 prosecutors across the country, I think that the risk to the presidency is quite obvious.
General Francisco: (02:24:09)
In terms of the Nixon case, we are actually arguing for the same standard that the court applied in the Nixon case, the special need standard. We’re just saying that a local prosecutor and state courts should at a minimum be required to meet the same standard that the federal prosecutor Nixon had to meet and show that he really does need the information that he’s seeking. Since again, if he doesn’t, it’s unnecessarily burdensome. Yes, your honor.
Justice Ginsburg: (02:24:36)
The grand jury is an investigatory body. It doesn’t make at the outset specific charging decisions while the investigation is underway. It investigates in order to determine should there be specific charging decisions. But you would have them make charging decision before they investigate. And that seems to be backward.
General Francisco: (02:25:04)
Your honor, respectfully, no. I would simply urge that you apply the same standard that Judge Wald applied in the [inaudible 02:25:13] case, which was a grand jury subpoena issue to the White House where she concluded, properly in our view, that Nixon special need standard ought to apply to grand jury subpoenas. You don’t have to make a charging decision, but you do have to show a demonstrated specific particularized need for the information pursuant to which you are issuing the grand jury subpoena.
Chief Justice Roberts: (02:25:38)
Justice Breyer: (02:25:41)
Thank you. General, I think that Nixon tape case has one thing for you, one thing against you. The thing against you, I think it was a case where executive privilege was asserted. But what’s for you, and I think might be more relevant is, in that case, the court said, well, there has been first a weighing of the burdensome nature, et cetera, a lot of other things in that, in the lower courts that have decided that it is appropriate to go forward.
Justice Breyer: (02:26:13)
Now, what I don’t see is why you need a special standard more than that here, the ordinary standard. You would need a decision by us that it’s reviewable in federal court. I understand that. But I don’t see why you have to go beyond that where the things you’re talking about would be taken into account.
General Francisco: (02:26:36)
Your honor, you are absolutely correct that, at a minimum, we would need federal court review. And, in that regard, I would note that the district attorney here agrees that there are Article II limits on what he can do. And that those articles who limits are in federal court. But respectfully, I would suggest that Nixon stands for more than simply some kind of weighing of interests. Nixon applied the special need standard. And it said that the prosecutor did, in fact, have to show a particularized need for the information. That’s all that we’re suggesting ought to apply here.
Justice Breyer: (02:27:10)
Yeah. Well, wasn’t that in the context of assertion of executive privilege?
General Francisco: (02:27:14)
Excuse me, your honor?
Justice Breyer: (02:27:16)
Wasn’t that in the context of an assertion by the president of executive privilege?
General Francisco: (02:27:20)
Yes, your honor. It was. But litigation about private conduct is also burdensome. And, as the court recognized in Clinton against Jones, the president might well need more protection in state court than he gets in federal court precisely because of the risk of local prejudice. And that’s why the court reserved judgment on that question. So, I think, when you put those two things together, it does make it entirely appropriate to hold the local prosecutor in state court to the same standard as the federal prosecutor was held to in the Nixon case. And indeed, even if you were to take the district attorney’s own case specific test, I think you would need the special need standard. After all, we don’t typically get discovery into a grand jury proceeding. So, the only way to assess at the front end whether the prosecutor is issuing an unduly burdensome subpoena or issuing a subpoena in bad faith is to require some kind of showing of special need. After all, why would a local-
Chief Justice Roberts: (02:28:18)
Justice Alito: (02:28:22)
General, could you explain in more specific terms, how you think this showing of special need would be carried out in district court? I assume that the prosecutor would have to make some kind of… would have to reveal what was being investigated and why this particular information was needed for or essential for the investigation. Now, would that be reviewed by the judge ex parte? Would it be available to whoever the sitting president is to object to that, to review it and object to it?
General Francisco: (02:29:04)
Your honor, it’s difficult to answer that question in a vacuum, because I think it would very much depend on the particular case. But let me make my best stab at it. I think that, in order to have meaningful judicial review, the prosecutor would need to make public as much as could responsibly be made public so that the president would have an opportunity and the president’s lawyers would have an opportunity to make their case on the particular facts. If there is a certain amount of evidence that really cannot responsibly be made public, then I think it would be appropriate to consider ex parte proceedings or filing under seal. In all events, we think that that’s the type of assessment that needs to be made when you’re talking about subpoenas, unprecedented subpoenas like this one, that are from state and local prosecutors targeting the president of the United States. The other place I would point you to is, again, Judge Wald. Wald’s very good opinions for the D.C. Circuit in the [inaudible 02:30:08] case where she does walk through in some amount of detail and unpack how the special need standard applies to grand jury subpoenas.
Justice Alito: (02:30:17)
But how essential must the information be in order to meet this special need standard? Does it have to be absolutely indispensable, not available from any other source by any conceivable means? Or simply very useful?
General Francisco: (02:30:34)
Your honor, it’s probably somewhere in between those two things. I think it’s got to be critical to the charging decision. So, it can’t just be marginally useful, or merely duplicative, or interesting to a tangential side issue. It does have to be critical to the charging decision. If the information is readily available elsewhere, I don’t see how a prosecutor could meet the special need standard. And, if the information that he currently does have is sufficient for him to make a responsible charging decision, I also don’t think how he could meet the special need standard. So, I guess I would put it somewhere-
Chief Justice Roberts: (02:31:09)
Thank you, counsel. Justice Sotomayor.
Justice Sotomayor: (02:31:14)
General, there’s always danger in taking a doctrine adopted for one set of needs, and that has to do with needs that are balancing what is clearly recognized in law as executive privilege, versus the needs for the proceeding at issue and transplanting it to a situation that’s totally different where we’re not talking about a claim of executive privilege and we’re not talking of executive immunity. We’re talking about private activities that predated the president’s tenure. So, why are we using all that transplanted language? And why don’t we get to a standard that takes care of what you’re worried about, which is harassment and interference, and simply ask whether the investigation is based on credible suspicion of criminal activity and whether the subpoena is reasonably calculated to advance that investigation, a standard that looks to whether there is a good faith basis for the state prosecutor’s actions and whether their subpoena is reasonable in its scope and burdens? I don’t understand why that sort of standard is inadequate, especially for a proceeding that involves secrecy like a grand jury subpoena.
General Francisco: (02:32:57)
For two reasons, your honor. First, for the reasons that I think Justice Breyer did persuasively explain in Clinton against Jones, even litigation about private conduct can be quite burdensome. And that it’s particularly so when you’re talking about private conduct that’s being litigated in state court pursuant to the procedures. So, I think that’s why he correctly predicted that this court would need, in future cases, to develop special protective procedures precisely in this context.
General Francisco: (02:33:27)
And secondly, I think that the special protective procedure that we are proposing here is necessary even under your honor’s general approach. After all, why would a prosecutor take the unprecedented step of issuing a subpoena to the president of the United States for personal records from a local prosecutor, if he can’t even show that he really needs the information that he’s seeking? If he can’t make that showing, I think there is a pretty good reason to be a little bit suspicious. After all, very-
Chief Justice Roberts: (02:33:59)
Justice Kagan: (02:34:01)
So, General, a couple of times now, in response to Justice Breyer and Justice Sotomayor, you’ve explained why we should use the standard from executive privilege cases by saying, well, litigation about private conduct is also burdensome. But the point about executive privilege cases, it’s not that it’s burdensome. I mean, the critical factor is the way the interests that a president has in communicating with advisors on official matters, often about national security, often about military matters, and the need for confidentiality in that. And that’s why the Nixon standard was developed. Not because of generalized ideas about burdensomeness, which can be dealt with in other ways. So, again, why should that standard be used here?
General Francisco: (02:34:52)
Respectful, your honor, because I think that they’re parallel interests. Executive privilege, you are right, is meant to protect the confidentiality of communications. But Article II more generally is meant-
General Francisco: (02:35:03)
…reality of communications, but Article II more generally is meant to protect the President from being unduly burdened in his ability to carry out his responsibility. And I think that’s particularly necessary when you’re talking about state court proceedings by the many, many 2300 local prosecutors across the country who, again, are more responsive to local political constituencies and local interests the national ones. So I think that when you look at-
But again, General, you don’t need this heightened standard in order to take account of burdensomeness. Burdensomeness is something that can be addressed in any subpoena. And I’m sure that courts, when it gets to the President and the special responsibilities of the President will address those interests with respect, with sensitivity, especially if we tell them so. So, why would you need this heightened standard that is meant to protect confidential communications about official government business?
General Francisco: (02:35:59)
For two reasons, your Honor. First, because under the ordinary grand jury rules, the only question as to burdensomeness is whether the subpoena has any conceivable relevance to any plausible subject of investigation, and therefore is unduly burdensome. And secondly, I think that judgment has to be made by federal courts, not state courts. Because state courts, like local prosecutors, are going to be more responsive to local interests. After all, in New York State trial court judges, like the district attorneys, are elected in partisan elections. So all we’re saying is that this is the type of assessment that needs to be made in federal court. And the most appropriate and easy to apply standard is the standard that you’ve already been applying for 50 years under the Nixon case. And we think that that-
Chief Justice Roberts: (02:36:45)
Thank you council. Justice Gorsuch?
Justice Gorsuch: (02:36:48)
I’d like to just explore a little further how this standard that you’re proposing would play out in practice. I suppose you’d have a local prosecutor saying, “I’m investigating a tax infraction.” And the best and maybe only evidence of that potential infraction are the tax records in the possession of the potential defendant. Why wouldn’t that meet the special heightened test that you proposed in every case? And if it does then what have we achieved?
General Francisco: (02:37:24)
Well, your honor, I think that would depend on who the potential defendant is. If the potential defendant is the President of the United States, here the district attorney doesn’t contest the fact that he cannot indict the President of the United States until after he leaves office. So he wouldn’t be able to show that he needs the information now, in order to indict the President of the United States. Of course, if the potential defendant is somebody else, then it might start looking closer to the Nixon case itself where the special counsel was investigating a third party. And I think that would fact be a relevant consideration under the special needs standard.
Justice Gorsuch: (02:38:04)
I guess I didn’t follow that last portion of it. Let’s say that an infraction is by a corporation or some entity, and the prosecutor’s going to say, “We need these materials in order to determine whether there is an infraction.” Why wouldn’t that qualify under your standard?
General Francisco: (02:38:23)
I think that would certainly be a relevant thing to take into account under our standard. And if he actually met the special needs test with respect to the information and found that it was really necessary in order to bring charges against that third party, he may well meet the special needs standard. And then you’d have to address the broader immunity questions. In this particular-
Justice Gorsuch: (02:38:45)
How much showing up a special need is required under your standard? The prosecutor says, “I have some reasonable suspicion that there’s a tax deficiency by some entity.” That enough? Or, would more be required?
General Francisco: (02:38:58)
Your Honor, I think it’s more than that. I think you’ve got to show that the information he’s seeking is critical to him responsibly making a charging decision, that he can’t get that information from somewhere else, and the information that he does have is insufficient. It’s essentially the same standard this court applied in Nixon, the D.C. Circuit applied in the repealed case. You know, it’s not like it’s a hard and fast bright line rule, but it is an administrable rule that courts have been applying for some 50 years now.
Chief Justice Roberts: (02:39:30)
Thank you, counsel. Justice Kavanaugh?
Justice Kavanaugh: (02:39:33)
Thank you, Mr. Chief Justice. And good afternoon General Francisco.
General Francisco: (02:39:37)
Justice Kavanaugh: (02:39:38)
I want to follow up on Justice Thomas and Justice Kagan, and really zero in on what the Article II interest is before we talk about what standard. And I think in Justice Breyer’s concurrence in Clinton against Jones, he referred to the interest in time and energy distraction. Which he drew from Nixon versus Fitzgerald, the different Nixon case, as an independent Article II interest that is distinct from distortion of official decision making, which would be more the executive privilege kind of interest. Is that the Article II interest you’re zeroing in on? Or is it something else?
General Francisco: (02:40:23)
Your Honor, respectfully, I think it’s both of them. And as I read Justice Breyer’s opinion, he likewise understood it to be both of them. The whole idea is that Article II vests all executive power in a single person. And that necessarily means that others can’t unnecessarily hobble or debilitate that person in his ability to responsibly carry out his duties. So the whole point of the special needs standard is to ensure that others, including prosecutors, can’t unnecessarily impede the President in carrying his responsibilities. So at a minimum, they have to show that they really need the information that they’re seeking. Since, if you have 2300 prosecutors that are unnecessarily hitting the President with subpoenas and none of them can actually show they really need that information, you’re necessarily going to be undermining the President’s ability to effectively carry out the Article II duties that the Constitution entrusts to him, and to him alone, on behalf of the entire country.
Chief Justice Roberts: (02:41:24)
Thank you, counsel. Mr. Dunne?
Carey Dunne: (02:41:30)
Mr. Chief Justice, and may I please the court. There are two principles at issue in this case. One is the central role of the President in the functioning of our national government, and the need to avoid interfering with the President’s ability to carry out those important duties. The other principle is that, under our Constitution when a president acts as a private individual he or she has responsibilities like every other citizen, including compliance with legal process. In particular, this court has long held that American Presidents are not above having to provide evidence in response to a law enforcement inquiry. We’re mindful that as a state actor, our office cannot investigate a president for any official acts, and that we can not prosecute a president while in office. But here we’re talking about a subpoena sent to a third party, concerning private conduct by a variety of individuals and businesses.
Carey Dunne: (02:42:19)
Yes, one of them is the President, but no one’s been targeted or charged with anything. There’s no claim of any official acts or any executive privilege. As the courts below found the subpoena imposes no Article II burden whatsoever. That was not born of any political animus or intent to harass. Instead, it was prompted by public reports that certain business transactions in our jurisdiction were possibly illegal. Given those allegations, our office would have been remiss not to follow up. In response, the President asked the court to overturn 200 years of precedent by declaring he has a blanket immunity while in office from any legal inquiry, even for his prior private acts. Even though that could result in a permanent immunity for him and the other parties if the statute of limitation expire. And even though it could prevent the discovery of evidence that could exonerate the individuals involved.
Carey Dunne: (02:43:10)
Finally, his novel claim also asked the court to presume that state actors have a quote, “Reckless mania,” that will cause them to quote, “relentlessly harass presidents.” And that state in federal courts will allow prosecutors to do so. Of course, there’s no historical support for this claim, which flies in the face of federalism, to suppose that flood gates have been open for generations and there’s never been a flood.
Carey Dunne: (02:43:32)
The only thing new here is the subpoena comes from the state. But absent a constitutional burden, that shouldn’t lead the court to abandon it’s longstanding respect for state criminal proceedings.
Chief Justice Roberts: (02:43:42)
Thank you, counsel. You know, we’ve had the cases this morning and this case and they are, in many respects, very similar. In the case of the subpoena itself, they’re identical. But I think in other respects, they’re really quite different. The Separation of Powers case this morning involved entities in an ongoing relationship, the House and the President. And issues of this sort, although always very important, come up with some regularity. There’s often disputes between the White House and Congress over documents. And almost always they’re worked out because each of those branches have authorities and powers that affect each other. If the Senate asked for documents from the White House and the White House doesn’t give them, then the Senate says, “Well, we’re going to take our time confirming your nominees,” and back and forth.
Chief Justice Roberts: (02:44:38)
But with respect to local prosecutors, you don’t have that ongoing relationship. So, the possibility of working something out is far less evident. And if you’re doing that the stakes are… Well, it’s just a little more difficult because there isn’t that ongoing relationship.
Chief Justice Roberts: (02:44:56)
So, shouldn’t there be a higher standard before we permit the district attorneys from around the country, they’re also more of them than the two houses of Congress, 2300 of them. Shouldn’t there be a higher standard than in the case of the Separation of Powers dispute?
Carey Dunne: (02:45:15)
Your honor, I think our answer to that is yes. And putting aside if relationship or not to the separation of powers analysis, I’d like to address the DOJ’s proposed heightened showing standard. Because, we see that… Let me put it this way, we see there were three reasons, I think, why the DOJ’s new heightened showing proposal doesn’t work. And a number of questions in the last argument touched on some of these concepts, if I might?
Carey Dunne: (02:45:41)
First, one problem is that the approach that they’re suggesting really reverses the court’s prior approach to fact finding in these types of cases in a way that I think would harm the grand jury process, which I can explain. So again, we agree that there should be a heightened showing requirement, but my point is, only after a president has already established an actual Article II burden.
Carey Dunne: (02:46:02)
Otherwise, there’s nothing for a court to weigh in the balancing of Article II interests against the need for legal process. And that balancing and that sequencing, frankly, was central in and both Nixon and Clinton cases. Here-
Chief Justice Roberts: (02:46:15)
Could you articulate for me precisely what standard you think should apply in your case? And in what sense is it more rigorous than what would apply in the dispute between the white house and Congress?
Carey Dunne: (02:46:29)
Yes. We believe that a prosecutor, if there’s been an affirmative showing by a president of an Article II burden, and of course, the courts has below held that there has not been such a showing here. But if in a different case there was such a showing made, we believe that prosecutors should be required to show, one, and objective basis for the investigation. And two, a reasonable probability the request would yield relevant information.
Carey Dunne: (02:46:55)
We think language like that will be more consistent with past cases of this court and with the realities of the grand jury investigation. And frankly, the courts below also already found that we’ve met that standard here. The problem is that the alternative of requiring a state prosecutor to get permission first from a federal judge for any request relating to a president’s business activities, would undermine this course prior rulings, like the one in R. Enterprises. That a grand jury shouldn’t be burdened by procedural challenges and delays, because it’s a confidential process and not an adversarial proceeding.
Carey Dunne: (02:47:29)
And the DOJ’s new standard just ignores that. The other problem-
Chief Justice Roberts: (02:47:34)
Justice Thomas: (02:47:36)
Thank you, Mr. Chief Justice. Mr. Dunne, you were about to say how DOJ’s approach would harm the grand jury process. Would you finish that?
Carey Dunne: (02:47:47)
Yes. And I think I was just addressing that, Justice Thomas. That is, to require us in any given case to run across the street to federal court and say, “By the way, we have an investigation underway, it happens to touch on a president’s prior business transactions in which he and others were involved in. And we’d like to get permission to send a subpoena for records that are in either the possession of a president or maybe the president’s agents, like his accounting firm here.” Again, it completely upends the way that a grand jury process is supposed to work.
Carey Dunne: (02:48:22)
If I might, the second big problem with the DOJ’s analysis, is that the language that they’ve chosen just doesn’t work, contrary-wise to what I just set out. Because if it only applies in the context of a trial subpoena. It calls for a quote, “stringent showing,” that the request is quote, “directly relevant to central issues at trial and charging decisions.” Again, that language just doesn’t apply in the context of a grand jury when no charging decisions have been made. So that’s why the formulation that we’ve suggested, I think it would be more consistent with what’s needed in the grand jury context.
Carey Dunne: (02:48:57)
But again, we think that it’s utterly unnecessary here to apply in our case. Because A, there’s already been a finding of no Article II burden. And B, we have already met the standard by the district court’s finding that our investigation is well founded and brought in good faith.
Justice Thomas: (02:49:14)
So, what limits a grand jury process in New York? What are the limits?
Carey Dunne: (02:49:22)
The limits are, I think, the same basically as they are in a federal court in most other States, your Honor. I mean, yes, the recipient of a subpoena who has a basis to argue either a privilege or a burden of some sort has the right, as the President did here, to go into court and make those factual arguments that either it should be quashed or constrained in some fashion. There is a grand jury judge who supervises all grand juries and their activities, it was always available here.
Carey Dunne: (02:49:55)
But I think the more important point, perhaps your honor, is that obviously given the decision of the court of appeals below in this case, and to address that concern and that footnote in Clinton. At this point it’s clear that a president, in particular, who has a concern about this kind of impact on Article II duties now always has the ability to go into federal court and not into state court. Which, was the main concern in that footnote in Clinton.
Justice Thomas: (02:50:20)
What if you thought it, as the President said, it was impossible for him to do his job as opposed to just being burdened? Would we have a role to limit or somehow end the grand jury process?
Carey Dunne: (02:50:37)
Absolutely, your honor. I think that’s the point of the case specific analysis, is that it gives a court, and here a federal court, to hear a concern like that expressed. And if the concern is, “If somehow this shuts my office down,” or where it is a real burden, it’s not just a speculative mental distraction claim. Then yes, the courts are empowered to impose a wide variety of limitations. Including, if necessary, to shut an investigation down or to shut a subpoena or litigation down. That’s the beauty of this court’s prior decisions in Nixon, and Clinton, and others which have decided consistently to apply the case specific analysis and have rejected the notion that this is best treated with a categorical prophylactic rule. I just think that, that’s not appropriate here when it’s also case specific.
Justice Thomas: (02:51:30)
Chief Justice Roberts: (02:51:31)
Justice Ginsburg: (02:51:34)
The principle objections that have been raised is that when you’re dealing with federal prosecutions, they’re all controlled by the Attorney General. But here you have 2300 district attorneys each with grand jury subpoena power. So the control, it’s existed in federal courts with the attorney general at the helm, and no one controlling all of these state district attorneys.
Carey Dunne: (02:52:17)
I understand, your honor. And I think what that gets centrally to is the consistent argument here about the parade of horribles, if you will. If I could address that, I think there’s several answers to that concern. First of all, there’s really no empirical basis in history for this apocalyptic prediction. The same claim was made and rejected by this court in Nixon and then in Clinton. That of course was decades ago, and there’s not been a flood of subpoenas, or litigations, or prosecutions of presidents by States or federal prosecutors. Second, as a practical matter, this notion that there are 2300 prosecutors out there writing with their subpoena pads open, there’s just no basis to think that an army of local prosecutors like that would even have jurisdiction over a president, especially for private conduct, in the first place.
Carey Dunne: (02:53:07)
New York City, of course, has a particular connection to the Trump organization and its financial transactions because it’s headquartered here. It’s not likely that that more than one or many States, much less to 2300 counties, would ever have that kind of connection to a president’s private conduct. Third, as Justice Ginsburg you mentioned in the last argument, this view that there’s a reckless mania by local prosecutors contradicts this court’s longstanding presumption in favor of regularity and deference to state proceedings.
Carey Dunne: (02:53:40)
And so, to finish off, the limitation that you’re asking about really comes in the form of the case specific showing that past cases from this court have established. Because if there is a concern about the behavior of a local prosecutor any president when necessary, but it’s been few and far between over the decades, can run now not just into state court, which Clinton thought could be problematic, but can run into federal court and raise exactly the kind of claim that the President has raised here. That’s the limitation.
Justice Gorsuch: (02:54:13)
Chief Justice Roberts: (02:54:15)
Justice Breyer: (02:54:18)
Thank you. I agree with you that the two basic principles you said at the outcome are there. Every man’s evidence versus the constitutional statement that the president is the executive, Article II. And they conflict. Justice in the place or the first case, the power of Congress, Article I and Article II conflict. Alright-
Carey Dunne: (02:54:48)
I would say they don’t conflict, but yes, their intention-
Justice Breyer: (02:54:50)
Their intent. Fine, all right. Now a possible solution is say no absolute rule but just send it to the ordinary system for weighing the needs versus the burdens. And the different sides have to say what they are. And then have that reviewable in federal court. And because of the nature of it, and we could list in an opinion, the kinds of things that might not be or might be relevant depending on the case. And eventually, with the President, we might review it. Alright, now, all of that would take time. But time itself would discourage prosecutors from doing this, which might be good. And time itself would encourage House, Congress, President to work things out in a nonjudicial way. Alright, I don’t put that as being wedded to it. I want to know your reaction.
Carey Dunne: (02:55:47)
Your honor. I think what you’re describing is exactly what this court held in Clinton. And it’s exactly, frankly, what has happened now in this case. Which is yes, in this case the President decided to pursue is his claim of immunity in a federal court versus state court, which is fine and now available in the future to all presidents. But I think the fact that that is what happened should happen in the ordinary course in which can happen in the ordinary course is again the solution and the limiting principle here. Because it does make it clear that there is a remedy and discourages, I would have thought, bad faith impulses by any state or local prosecutor who might harbor such an impulse. And provides an outlet that makes sure that it can’t get out of control. But again, that’s the beauty of the case specific analysis. I don’t think these things lend themselves to categorical prophylactic rules, and that’s been the approach from this court from day one.
Justice Breyer: (02:56:44)
Chief Justice Roberts: (02:56:46)
Justice Alito: (02:56:48)
As I understand your proposed standard, there would be available review in federal court, and a prosecutor would have to show an objective basis for the subpoena and the relevance of the subpoena to the investigation. Is that correct?
Carey Dunne: (02:57:09)
Basically, your Honor, or language like that. I said point 2 was a reasonable probability that will yield relevant information, but yes, that’s the concept.
Justice Alito: (02:57:16)
Okay. Reasonable probability. What would be your objection to a somewhat more demanding standard? So the prosecutor would have to show that the information can’t be obtained from another source, or it would be very difficult to obtain it from another source. And unless the information is obtained right now, as opposed to at the end of the president’s term, there would be some serious prejudice to the investigation.
Carey Dunne: (02:57:51)
Your honor, I frankly don’t think that any of those concepts are foreign to the standard that I articulated. And I think they are relevant, in fact, to the objective basis and relevance points. And again I think that the court below, the district court in particular, heard our explanations. Including the fact that the reason why we went to Mazars is not to do an end run around the negotiations with the President’s lawyers. It’s because Mazars, as the outside accounting firm, is as far as we could tell the only repository of what might be the most important documents in an investigation like this. Which are not just the tax returns, but the surrounding accounting materials, and work papers, etc., that shed light on the good faith, or not, of the transaction. So my short answer, I’m sorry, is that I think those concepts would be fine and not unduly burdensome in the context of the standard that I set forth.
Justice Alito: (02:58:51)
Can I ask you one other thing? Do you think that the adjudication of this and all cases of a similar nature would depend in any way on state law and practice regarding grand jury secrecy? In federal court the rules of grand jury secrecy are, of course, very strict. States have different rules. Suppose a particular state imposes no restriction on the revelation by a member of the grand jury or perhaps even by the prosecutor of the information that is supplied in compliance with a subpoena.
Carey Dunne: (02:59:27)
Your honor, I’m not aware of any other States having that kind of lax or nonexistent grand jury secrecy rule. I can assure the court that in New York State, our grand jury secrecy laws are at least as strict as under the federal system. But putting that aside, if in fact the fact pattern presents to a judge the prospect that the information in fact will become public, and the president were to persuade a judge that publication of the documents at issue would themselves impose some sort of Article II burden or other interference with his executive duties in that given state. You know, I suppose that would be part of the case specific analysis that the court could understand and take into account in deciding whether there should be some limitation or even a quashing of the subpoena itself. I think that’s part of the case specific analysis.
Justice Alito: (03:00:22)
We both know that prosecutors have different… That there are prosecutors who leak all sorts of information, including grand jury information, all sorts of media sources, including in specifically the New York Times. If there were a showing that that was a risk, would that have a bearing on this?
Carey Dunne: (03:00:43)
Your honor, it’s hard for me to… I’m not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy.
Carey Dunne: (03:00:54)
Yes. In all different kinds of offices there are at times leaks of status of cases, and that kind of thing. But I am not aware, and our grand jury secrecy rules really prevent prosecutors, I believe, from actually turning over confidential grand jury secrecy materials to-
Justice Alito: (03:01:17)
Wait. You’re not aware of this ever happening? Your office is never requested by media in the New York City area to disclose confidential investigative information?
Carey Dunne: (03:01:32)
No. Well, they ask all the time, your honor. And the answer is consistently no. At least as far as I can represent. But what I’m trying to draw a distinction between is people commenting to reporters all the time off the record, that kind of thing, versus turning over actual materials like voluminous tax returns or other sensitive documents that have been gathered and which are covered by grand jury secrecy. That’s what I just don’t see happening here, and I think history supports that view.
Justice Alito: (03:02:02)
[crosstalk 03:02:02] New York?
Chief Justice Roberts: (03:02:02)
… of Article II burden. Does that include the burden of harassment, the burden of using subpoenas for political purposes?
Carey Dunne: (03:02:10)
Yes, your honor. I would certainly include that there. And again, there’s been an express finding below here that the investigation was well-founded, that there was no harassment or bad faith in our bringing of the subpoena.
Chief Justice Roberts: (03:02:25)
Justice Sotomayor: (03:02:27)
Counsel, did I understand your answer to Justice Alito to be that you are in agreement with the SG that we should impose a heightened need standard, a special needs standard?
Chief Justice Roberts: (03:02:42)
No, your honor. I think we’re all now calling it the heightened showing standard, or in the DOJ’s lexicon now the heightened need standard. But I think what I’m articulating is a very different standard in terms of the actual language to be looked at and imposed. Again, I think-
Justice Sotomayor: (03:02:59)
But, if you can counsel, because I want to be very precise. If your standard includes what the heightened need standard has, then why not call it what it is? Heightened need. There has to be a reason you think we shouldn’t call it that. And I don’t know that I understand what difference you’re proposing.
Chief Justice Roberts: (03:03:19)
I’m sorry, Justice Sotomayor. The concern I have with the DOJ language is, again, calling for a stringent showing that a subpoena request is directly relevant to central issues at trial and other concepts like that. What I’m trying to propose is something which is not so strict and which is not limited to charging in trial related concepts, but which would be workable in the context of a grand jury subpoena. And again, whatever the standard is that we’re articulating, I want to stress that I believe that our office has met that standard here. Even under the DOJ’s proposal, because of the findings by the district court-
Justice Sotomayor: (03:03:56)
Tell me why the heightened standard would interfere with the grand jury process.
Carey Dunne: (03:04:04)
Well, I think your honor, among other things the DOJ’s proposed application of its standard, if you read its brief, would confer the same absolute immunity the President is seeking here. What they say is, since you can’t indict while in office you don’t need the documents while he’s in office. And frankly, that’s an outcome that would apply in every case. No subpoena could pass that test because they basically say you have to wait until he’s out of office before gathering information because you don’t need it in the meantime. And so their definition of heightened need says, “You don’t need it while he’s in office.” Well, that’s not workable here.
Justice Sotomayor: (03:04:44)
Carey Dunne: (03:04:45)
Because obviously, your honor, if we were to wait until a president was out of office in a situation like this, first, it would risk the loss of evidence, the fading of memories, and unavailability to witnesses. Which is exactly why the DOJ Moss memo, of course, specifically contemplated that a president could be subject to a grand jury while in office to avoid losing that kind of evidence.
Carey Dunne: (03:05:07)
Secondly, and equally important here, no one should forget that we’ve got an investigation that is looking at the conduct of other people and businesses. And waiting like that would benefit those other participants, they could all end up above the law if the limitations period expires. So delay here is the same as absolute immunity, and absolute permanent immunity for the President and others if a statute of limitations expires. That’s the problem with the delay?
Justice Sotomayor: (03:05:37)
Well, the other side says the statute would be told against the President. But you’re right, it wouldn’t be told against other people who may or may not committed crimes that he may or may not be a part of. Correct?
Carey Dunne: (03:05:52)
Correct. And that’s important, your honor, for the third parties. But just to address my friend on the other side’s comment about the tolling, I’m not aware in state law of any-
Carey R. Dunne: (03:06:03)
I’m not aware in state law of any doctrine of implied tolling that would apply here to protect the state’s interests in investigating and potentially prosecuting if necessary down the road. I don’t know where that concept comes from, but it’s never been articulated by this court. There’s no act of Congress which permits that kind of tolling here. So for us, the statute of limitations is a big concern. Frankly, we’ve already lost nine months of time in this investigation due to this lawsuit. And again, every minute that goes by is basically, without even a decision on the merits here, granting the same kind of temporary absolute immunity that the president is seeking here.
Speaker 1: (03:06:54)
Elena Kagan: (03:06:56)
Mr. Dunn, you’ve been talking about how to analyze these burdens in a case specific way, the burdens, both in terms of the President’s time and in terms of any possibility of harassment of the use of a subpoena for political purposes. Mr. Sekulow said that the burdensome nature of these subpoenas is categorical. That was his term and I take him to mean that any subpoena interferes with the President’s responsibilities or undermines the President in his handling of the office. So what’s the answer to that?
Carey R. Dunne: (03:07:35)
Your Honor, may I make three points. I think the fact is that the court addressed this question. I think in Clinton and concluded that a president can’t realistically be shielded from every sort of private distraction, including some forms of legal process, especially in our modern age. So that’s why it’s up to a court to evaluate and protect the President depending on the circumstances on a case by case basis. Secondly, here the claim of possible mental distraction is completely speculative really. It’s based on the notion that the President might be worried and distracted about where an investigation might lead someday. It’s not based on any actual article two burden or interference of the sort the court was asking President Clinton to demonstrate in Clinton V. Jones.
Carey R. Dunne: (03:08:21)
And third, I’d say if that’s really the concern, I think it’s wrong to think that even a categorical rule here would provide comfort to a distractable president like that. So for example, nobody suggests here that we should be barred from continuing to investigate the President’s prior colleagues. So if we now gather documents from them that reflect past communications with him while he was CEO, are we then supposed to be stopped because it could create a fear in him that the investigation of others might lead him to be accused of something someday? Again, my point is that this speculative mental distress standard is not an appropriate basis to draw a constitutional bright line. That’s why the case specific approach is more appropriate.
Elena Kagan: (03:09:04)
And speculative mental distress. How about if they really mean political undermining?
Carey R. Dunne: (03:09:09)
Well, I mean that’s beyond the can of our office, your honor. And as again, the district court found there was no bad faith intended by virtue of our subpoena. So I don’t know. It’s already been determined here, there’s no intent to politically undermine. So I don’t know how a court could try to evaluate that and I’m not sure that would be appropriate unless they-
Elena Kagan: (03:09:33)
Mr. Sekulow suggests that you’ve shown your bad faith by taking the language of the house oversight committees subpoena.
Carey R. Dunne: (03:09:41)
Yes, your honor. I think we’ve tried to address that. I mean, the simple fact is that in 2018, when our investigation started and thereafter as we’ve spilled out. There were a series of public disclosures in the press about possibly illegal transactions involving tax and other financial and improprieties. And at the time of the house subpoenas and then our subpoena, it was clear that both our office and the house committees were looking at the same public allegations in that regard. In a situation like that, once the house subpoena became public, it’s not unusual for an office like ours to model our subpoena language on that, which has already been made public from a different source when it’s going to the same recipient. It makes it easier on the recipient in the process. There was absolutely no communication between our office and the house about this. There’s nothing sinister about it, your honor.
Elena Kagan: (03:10:37)
Speaker 1: (03:10:37)
Neil M. Gorsuch: (03:10:41)
Counsel I’d like to return to your colloquy with justice Alito and Sotomayor because I guess I’m uncertain what the daylight is between the test you’re proposing and the test the solicitor general has suggested. It seems both of you agree that these questions should be resolved in federal court. You’ve suggested that prosecutors should have to demonstrate objective basis for the investigation and that there’s at least a reasonable probability that the information sought will be helpful to that investigation. That it can’t be obtained elsewhere, and that it’s needed now rather than at the end of the President’s term because of some serious prejudice that might take place in between. As I understood your discussion with justice Sotomayor you suggested that the differences… The solicitor general thinks there should be an absolute immunity until the end of the term. I confess I didn’t read the brief that way. I read it as suggesting that district attorney has to show why there’s a need for the president’s records now, rather than at the end of the term. I understood your discussion with justice Alito to agree that that would be a relevant consideration. What I’m I missing?
Carey R. Dunne: (03:11:50)
I think your honor, putting aside the language differences, which I tried to highlight. I think the most important distinction is what I tried to note at the outset, which is the sequencing of the showings that needed to be made. Because what the DOJ is proposing, as I understand it, is that in the first instance, it has to be the prosecutor who goes to federal court in this instance now, and makes an affirmative showing that the standard has been met. That there’s some objective basis and it can’t be obtained elsewhere, et cetera, et cetera.
Carey R. Dunne: (03:12:23)
And only after such a showing has been made by the prosecutor, according to the DOJ, does the burden then shift to the president to show, Article 11 burden. I think that’s, what’s completely backwards and inconsistent with Nixon and Clinton. I think it’s much more appropriate for the President as the moving party, as here to be required to make a showing as any other litigant would be the case. And again, here we’re talking about purely private conduct to explain why this request somehow impacts not just on a need to gather documents, which is not the case here, but on an actual Article 11 burden. And only once that showing has been made, should I think the burden shifts to the prosecution consistent with past cases by this court to explain why nonetheless, it’s still necessary to permit the court at that point to conduct the balancing of apples and apples in terms of coming to the right conclusion in a specific case. To me that-
Neil M. Gorsuch: (03:13:25)
So Mr. Dunne, I’m I correct in thinking then that you agree that the forum should be federal court? You agree on all the relevant considerations, the necessity of the information that it can’t be obtained elsewhere, the timing issues all are relevant considerations. It’s just who bears the burden.
Carey R. Dunne: (03:13:43)
Yes, your honor-
Neil M. Gorsuch: (03:13:44)
Is that what we’re fighting over?
Carey R. Dunne: (03:13:46)
Well, maybe with the DOJ there’s less daylight between us and the president’s lawyers. But I think the important point that I would want to leave the court with is that even if one were to adopt that standard or even frankly, I think the DOJ standard, the fact is we’ve already met that test, given the findings of the court below.
Neil M. Gorsuch: (03:14:07)
Oh, I know you think you win no matter what I’m just… We have to write a rule that’s presumptively of some value going forward and isn’t just about one president, but it’s about the presidency. I’m just trying to understand what daylight actually exists. And is it fair to say that the only daylight that exists between you and the solicitor general, is who bears the burden of proof? I’m not going to put words in your mouth. I’m trying to understand.
Carey R. Dunne: (03:14:31)
Well, your honor, I think it is the burden and the difference in language, which I pointed out to justice Sotomayor. I think that language different… Those differences are important because I don’t think that the DOJ language works in a grand jury investigation.
Neil M. Gorsuch: (03:14:44)
Speaker 1: (03:14:45)
Justice Kavanaugh: (03:14:48)
Thank you, chief justice and good afternoon Mr. Dunne. On that last point that you were talking about with justice Gorsuch, the difference between the Nixon heightened needs standard, you said it doesn’t work in a grand jury. What do you do with judge Walt’s opinion in re sealed case, which took Nixon and did apply it in a grand jury context?
Carey R. Dunne: (03:15:12)
Yes. Justice Kavanaugh, I think you mentioned in the earlier argument… The fact remains that the re sealed case was indeed applying the Nixon standard as the Nixon court contemplated to a claim of executive privilege. And as has been pointed out earlier today, I think that’s a very different analysis to be undertaken for a very different purpose. I don’t think one can just simply import that language and apply it to-
Justice Kavanaugh: (03:15:40)
Well, let me, I’m sorry to interrupt. Let’s leave that for a moment, but the point on the grand jury versus trial, just on that point, judge Walt’s opinion did take Nixon and apply it in the grand jury context.
Carey R. Dunne: (03:15:55)
And indeed, even in the grand jury context, when we’re talking about a privilege analysis, I think that language is appropriate because at that point you already… Once they’ve been an affirmative showing that established that there is a privilege to be addressed. That of course, with any attorney, client privilege, for example, it’s necessary for the court then to turn to the demand or the request and the documents that are at issue and evaluate them in light of this-
Justice Kavanaugh: (03:16:23)
If we can move on to the Article II issue then, do you acknowledge that there’s an Article II interest at stake here?
Carey R. Dunne: (03:16:29)
Justice Kavanaugh: (03:16:30)
What do you think it is?
Carey R. Dunne: (03:16:32)
I think it’s the Article II interest to be free from unreasonable burdens on the duties and obligations of the presidency. That’s the same analysis that was applied in Nixon and in Clinton.
Justice Kavanaugh: (03:16:43)
Do you think time, what justice Breyer referred to as time and energy distraction are appropriate Article II interest?
Carey R. Dunne: (03:16:51)
Well, yes, as a matter of degree. Again, that was the court’s analysis in Clinton. Recall there that although this court allowed the litigation to proceed. Of course, appropriately, as I think is the case here there’s a need to make sure that the courts that are overseeing this kind of objection are undertaking an analysis of what the burdens are, including at a very practical level. I think the Clinton court hypothesized that perhaps a request for actual in-person testimony at trial by a president might be inappropriate in-
Justice Kavanaugh: (03:17:29)
I think the other side made two distinctions with Clinton, and I want to make sure you have an opportunity to address them. One is the federal state, the other is the civil criminal. On the civil criminal, I suppose one thing I’d like to hear you address is in a civil case and the court emphasized this and Clinton vs Jones. There’s an individual person at stake who has a claim. There’s not the same in a criminal context, obviously they’re different and very important interests there, but not the individual interests. Can you address that?
Carey R. Dunne: (03:18:02)
That’s one distinction, your honor. I say, I suppose on the other side of the coin. There is the important difference that there are potentially thousands or many more potential private litigants out there who are not bound by the kinds of ethical and jurisdictional and other constraints that prosecutors are bound by and to which this court has long paid deference. I think that the reason for concern in a civil context is actually much higher than it should be.
Justice Kavanaugh: (03:18:33)
Well, sorry if I can get my last question. On the federal state, if there is an Article II interests at stake, and you said that there is, it’s different, of course, from the executive privilege interest. But there’s some Article II interests at stake. I think the other side says it would be odd if the standard were easier to meet for a state prosecutor than for a federal prosecutor. I just want to give you an opportunity to address that.
Carey R. Dunne: (03:18:57)
Yeah, frankly, I don’t really understand that distinction. I think under the analysis that this court has applied before, and the one we’re talking about now. The same analysis would apply in terms of a case specific evaluation in the context of a particular facts of a particular request.
Justice Kavanaugh: (03:19:14)
So just to stop you there, you’re okay with whatever standard applies to a federal prosecutor in a case where there’s an Article II interest also applying to the state prosecutor.
Carey R. Dunne: (03:19:24)
Well, I’m not sure exactly what you had in mind, your honor, but I think the-
Justice Kavanaugh: (03:19:28)
Well, I guess the Nixon standard. You’re not okay with the Nixon standard. I don’t think, but I just want to explore-
Carey R. Dunne: (03:19:32)
No, because of the fact that that was applying to claims of executive privilege. But I think to get to your point, I think what it comes down to is that in the Nixon and Clinton cases, we’re talking about Article III verses… We’re talking about separation of powers analysis. Here the analogy is we’re balancing federalism and 10th amendment concerns about police power of the states against the supremacy clause. So it’s a different analysis perhaps, but it’s very analogous.
Justice Kavanaugh: (03:20:03)
Speaker 1: (03:20:05)
Counsel, we have time for a little bit of a second round. I guess the thing that I would like to focus on first is this question of how you examine the burden on the president or the presidency. I just don’t understand how it works in terms of you or the President being asked to devote a certain amount of time to reviewing, for example, in this case, the 10 years of documents or whatever. I mean, is there supposed to be a hearing where he says, “Here’s what I’m doing. I’ve got this pandemic thing. China’s causing all sorts of trouble.” Most presidents throughout their term have a pretty long to do list. I’m just wondering how it’s ever going to be any different in evaluating what that burden is. It seems to me that it would be the same, no matter what you really wouldn’t need it particular hearing on that.
Justice Kavanaugh: (03:21:00)
But I guess, your honor, when we’re talking about in a context of a particular subpoena like this one or a litigation, or what have you like in Clinton. Again, this court has already decided that you can’t shield a president from every sort of private distraction. I just want to emphasize here again-
Speaker 1: (03:21:22)
That was in the civil context. The question is whether or not a criminal investigation might be a little bit more distracting.
Justice Kavanaugh: (03:21:30)
Well, I’m not sure your honor. I mean, I’m not sure whether the stigma of a simple secret grand jury investigation, even if it becomes publicly known is more distracting and stigmatizing perhaps than being accused, even civilly of sexual misconduct, which was of course, allowed to proceed in the civil case involving president Clinton. So I’m not sure that again, the abstract concern about possible mental distraction. Or even a public stigma under this court’s prior analysis is sufficient to adopt a new bright line constitutional rule that forbids any kind of process like this, given the history of-
Speaker 1: (03:22:07)
It’s a little bit of a… That is what the president’s personal lawyer advocated. It’s not what the solicitor general advocated, not an absolute rule.
Justice Kavanaugh: (03:22:16)
Yes, I know your honor. And therefore the answer in that case is what’s happened here, which is a case specific analysis before a court. Which as they do all the time is able to balance and listen to arguments about burdens. And as here, when the court finds, there’s no Article 11 burden whatsoever after an opportunity to be heard, that should be the answer. That’s what’s happened here.
Speaker 1: (03:22:38)
Justice Thomas, anything further?
Justice Thomas: (03:22:41)
One brief question, Mr. Dunne. There’s been much discussion about burdens on the president, I would like from you, a couple of specific examples of what you think a burden would be that actually counts in your analysis on the part of the president.
Carey R. Dunne: (03:23:02)
But I guess your honor, again, hypothetically, because our subpoena proposes, we say no burden whatsoever.
Justice Thomas: (03:23:07)
I understand that.
Carey R. Dunne: (03:23:08)
But I think I would, again, point to this court’s language in the Clinton analysis where it was observed in passing in the opinion, I think just as dicta, but it was relevant. That if a president was asked to actually appear and testify at trial someday someplace outside of the White House, that might be the kind of thing that you’d say really shouldn’t have to happen. I would suggest there along those lines, too, that if a president were to be asked to show up for multiple days of consecutive deposition testimony or something like that those are practical burdens. Or if the demands were that he show up at a particular time or place, where there are conflicts and that kind of thing. Again, since we’re talking here about private conduct and no executive privilege, what we get to are really practical concerns about impositions on presidential activities. That’s, I think what we’re talking about.
Speaker 1: (03:24:11)
Thank you. Justice Ginsburg, anything further?
Justice Ginsburg: (03:24:14)
Speaker 1: (03:24:17)
Stephen Breyer: (03:24:18)
No, thank you. Go ahead.
Speaker 1: (03:24:20)
Samuel Alito: (03:24:23)
One quick question. I don’t know how good this court is about predicting the consequences of some of our decisions. But would you say that the court’s prediction in Clinton vs Jones, that the decision wouldn’t have much of an impact on the presidency has been born out by history?
Speaker 1: (03:24:43)
I guess, your honor, my view of the chronology in Clinton V Jones, I’ll try to be brief is that I think contrary to some people’s view of history, I think that the district court following this court’s decision kept a rather close reign on discovery in that case. Don’t forget later granted summary judgment in favor of the president long before trial. It was only that it came out later, of course, that it turns out that in his brief deposition, in a case that the president committed perjury. Which is what led to the impeachment proceedings and other travails he had. So I don’t think it was this court’s opinion or the litigation itself that led to those problems. Frankly, it was his decision to lie under oath. So I think that this court’s conclusion in both Nixon and Clinton, that you could not accept the notion that there’s going to be a parade of horribles either in a particular case or across the board still has born out over history.
Speaker 1: (03:25:39)
Justice Sotomayor: (03:25:44)
I’m not sure that I understood your statement earlier, that the only difference between you and the SG… Well, there are two differences, one in the articulation of special needs or heightened standard. But you said it’s the burden of proof, but you’ve already conceded to one of my colleagues that there is an automatic burden on the Article II clause by subpoena a sitting president period.
Carey R. Dunne: (03:26:17)
No, I’ve not your honor. I’m sorry, but I’ve not conceded that.
Justice Sotomayor: (03:26:21)
All right. What then are you conceding when you say there’s a burden? What are you conceding [crosstalk 03:26:26] –
Carey R. Dunne: (03:26:26)
I’m conceding [crosstalk 00:20:28]-
Justice Sotomayor: (03:26:26)
What kind of burden are you talking about? And number three, articulate more precisely what problems you have with the heightened standard that Nixon said in it’s grand jury subpoena.
Carey R. Dunne: (03:26:42)
Yeah, I guess in my response, I think to justice Gorsuch what I acknowledged was that yes, a subpoena like this implicates Article II issues and potential burdens. It’s those which have to be weighed in a case specific analysis. I wasn’t conceding at the mere fact of the subpoena imposes quote, “an Article 11 burden.” I think that’s the distinction I would draw. And again, getting back to the language question, again, it’s the DOJ’s language that calls for a stringent showing that our request is directly relevant to central issues at trial and specific charging decisions. And again, very simply as a practical matter, no court and no prosecutor could meet that standard because in a grand jury, one is not thinking about charging decisions or central issues at trial. That’s why I think the simple language that the DOJ is applying in its new heightened showing standard is just not workable.
Speaker 1: (03:27:41)
Elena Kagan: (03:27:43)
Mr. Dunne on the question of a possible distinction between state prosecutors and federal prosecutors, the President’s lawyers have urged that there’s a legal difference arising from the supremacy clause. I don’t think we’ve talked about that argument yet. What is your response to that?
Carey R. Dunne: (03:28:00)
I think the response, your honor is I alluded to it before and I think all it means is that there is a balance to be struck between in this case state prosecutors. The supremacy clause concerns against the rights of states under their police powers and the concepts of federalism and the requirements of the 10th amendment to allow the states to exercise their rights, especially in the criminal context, which are so important. So I think that that’s the parallel to the balancing in the federal prosecutor context. But I think it’s even more important given the federalism concerns and the fact that state prosecutors, of course, not only did they have the reserved police power of the states, but in context of criminal investigations, they’re a large body of criminal conduct is only prosecutable by the states. So that’s the thing that has to be balanced here.
Speaker 1: (03:28:56)
Neil M. Gorsuch: (03:28:58)
Nothing further. Thank you, chief.
Elena Kagan: (03:29:00)
Justice Kavanaugh: (03:29:03)
Thank you, chief justice. I just wanted to ask again, deferral of the investigation until after the presidency, assuming statute of limitations issues were solved, which is a big assumption. I understand. Can you take off the concerns you would have about that so that we have those clear.
Carey R. Dunne: (03:29:25)
Yes. Yes. Justice Kavanaugh. Again, point number one would be putting aside statute of limitations concern, which I don’t think one can discount here. Because I don’t think it’s been addressed ever, obviously by this court in this context. That’s our paramount concern, to be honest at this point, because the clock is ticking. But even if that were to be addressed, somehow the risk of over time by waiting of losing evidence and losing witnesses and that kind of thing is a very real risk. Again, I think the OLC Moss memo addressed that expressly in saying that a grand jury proceeding should be allowed to proceed.
Carey R. Dunne: (03:30:06)
But secondly, here, and it’s not unusual, since there were other third parties at issue in the investigation requiring us to delay because the president is still in office as to those third parties in gathering important evidence could yield them being above the law. If a statute of limitations runs as to them.
Justice Kavanaugh: (03:30:26)
Speaker 1: (03:30:27)
Mr. Dunne would you like a minute or two to wrap up?
Carey R. Dunne: (03:30:30)
Yes, your honor. Thank you. Your honor the issue presented here today is extremely narrow, but extremely important. We have a state investigation that’s well-founded implicates, no official conduct or executive privilege, involves a variety of third parties faces serious time constraints. It has been found to impose no Article II burdens. These facts put our subpoena well within the scope of legal process permitted by this court for generations, indeed back to 1807. Past decisions have consistently found that courts already have robust tools to protect presidents from abusive claims or demands.
Carey R. Dunne: (03:31:07)
There’s no need here to offend President or to write a new rule that undermines federalism, especially when such a rule would create a risk that American presidents as well as third parties could unwittingly end up above the law. Thank you.
Speaker 1: (03:31:21)
Thank you counsel. Mr. Sekulow you have two minutes for rebuttal.
Jay Sekulow: (03:31:25)
Thank you Mr. chief justice. Let me start with this and there’s some agreement. The New York county district attorney acknowledges that their subpoena implicates Article II issues and burdens. They also agree that there is harms that could rise to the presidency. We say those harms have actually existed. The other aspect of this is the ordering who carries the burden here. That seems to be the issue that’s left open this court’s decision in Cheney answered that very clearly. And it said the exacting standard is carried by the party requesting the information. So it will be carried by the respondent. In this particular case.
Jay Sekulow: (03:32:07)
There has been no showing and no findings of heightened need standards being met here. I think it’s again also important to remember and I think this came up in the context of earlier questioning. There’s a different stigma that attaches to criminal process than civil litigation. I don’t think that stigma should be ignored in a case like this. But the irony of all of this is that the house of representatives and the district attorney issued essentially the same subpoenas to the same custodian for the same records. The house said it wants the records so it can legislate not for law enforcement reasons. The district attorney says he wants the same records for law enforcement reasons. He has no legislative authority, but what’s really happening here could not be clearer. The presidency is being harassed and undermine with improper process that was issued in our view for illegitimate reasons. The copying of the subpoenas speaks to that. The framers saw this coming and they structure the constitution to protect the president from this encroachment. Thank you, Mr. chief justice.
Speaker 1: (03:33:18)
Thank you, counsel. The case is submitted.
Speaker 2: (03:33:23)
The honorable court is now adjourned until tomorrow at 10:00. (silence)