Justice and made please the court, the issues here are unprecedented in every sense. Before these cases, no court had ever upheld the courts use of subpoena powers to the records of a sitting president with a broad swath of the president s personal papers to the let alone purpose of the a potential legislation. There is a reason this is the first time a set has attempted such a gambit. Because, grist has subpoena power, it is subordinate and when that power is deployed against the president , it must yield absent any longstanding tradition or compelling showing of need. The committees consent is neither condition and that should decide this case. The committees contend the subpoenas satisfy the limits this court has always applied to congressional subpoenas. But the arguments would render meaningless but the arguments would render those limits meaningless. They claim congress can you subpoenas to uncover individual wrongdoing simply because that the always informed efficiency of existing laws and they challenge this courts ability to question the constitutionality of the potential legislation they rely upon. The committees obvious overreaches sufficient to invalidate these subpoenas even in a typical case. But the courts in which is not proceed against the president as it does against an ordinary individual. The committees have not even try to show any critical legislative need for the documents these subpoenas seek. It is no secret the relationship between the house represented on the president is frayed but this is new to the first or last time one house of congress will be at alls with the president. The rule the Court Applies here will affect this president but the presidency itself. The court should deny the committees blank check they seek. Mr. Strawbridge, i want to make sure i understand the scope of your argument. Questioningegins by whether the house has any power to subpoena president ial records but you seem, at the end of the brief, to pull back from that. Pressy such subpoenas the outer limits of congress 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 . I think it is 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. Quite frankly, the house has limited powers to regulate the presidency itself. I think its very difficult to imagine a situation where its implied power thats another formulation for what i was just focusing on, difficult to imagine a reason to , is your other words position, does it recognize in a particular case that the congress, the house may have such authority and that in such a case it would be for the courts to decide whether it has exceeded any bounds in that situation . The minimum this court should apply a standard in other cases when there is an attempt to serve process that targets the president. Is someou say there power in the house and you think there is a high standard. I understand the house to concede there is some limit to its authority. It sounds like, at the end of the day, this is another case where the courts are balancing the competing interests on either side. Is that the wrong way to look at it . I dont think we are asking this court to do anything different than it has done in an ordinary case. We are noting that the restraints on the power of congress emphasized in this case because this is a separation of powers dispute. Thank you, counsel. Justice thomas . Justice thomas . Justice ginsburg. So many of these prior cases, it. Was a cooperation for example returns. It gets to be a pitched battle because President Trump is the first one to refuse to do that. Because anhe said audit was ongoing and out seems to be broader than that. Case is reallys sauce for the goose that serves the gander as well. How do you distinguish whitewater when president clintons personal records were subpoenaed from his accountant or even Hillary Clintons Law Firm Billing records were subpoenaed. Cases, you say this one is oneofakind but it seems in prior cases it was a much interests. Lision of distinguish all of those cases, watergate, the paula jones case . Your honor, we distinct them in a number of ways. With respect to watergate and whitewater, obviously, those are cases of realist of relative recent vintage and his separation of powers dispute, this court has generally looked back for a much longer precedent for that type of issue that needs to be decided with examples of the encroachment on the and separation of powers. The recent examples are just a handful of them that the house identifies art to recent under that stricture is the court recognized in southwest general. Its important to note that in all of those cases, they actually involved cooperative efforts. As the court recognized below, consent is not the major of constitutionality. None of those were challenged to the scope and power of the legislative committee to request those documents. Thank you, counsel. Justice thomas. Thank you, chief. Counsel, im very interested. Do you think there were any implied powers for the congress to request or to subpoena private documents . I think there might be limited powers in some cases for the house to subpoena private documents although the court has been clear in watkins and another of other cases that congress lacked any power to just inquire. Can you define what you mean by that limited power . We dont quarrel with the general notion that congress has some implied power to exercise its legislative powers. We recognize that in some cases, congress has been able to seek information that would be directly relevant to its consideration of potential legislation. The view of forwardlooking information is aggregated information and not attempt to reassemble a precise factual history. In the d. C. Circuit judge open you in, it says this sort of information or subpoena should be requested under the impeachment power. The is the line between legislative subpoena and an impeachment related subpoena . In kilborn, this court recognized there were two very different powers and when impeachment his properly pending, the ability to subpoena pursuant to impeachment is coextensive with the courts. The Court Subpoenas are not unlimited but that has no bearing on this dispute because the party the committees have waived any reliance on impeachment nor could they. These committees dont have jurisdiction over impeachment. Justice breyer . Followup onke to the previous questions. Are you saying that sam ervins subpoenas which were done on the legislative power at the time of watergate, which was fairly broad, are you saying they were unlawful, that the court should not enforce them, yes or no . As to Justice Ginsburgs question, i would like to know why, since in watergate and other cases, watergate gavecularly, the court contested material involving the very workings of the president ial office to the prosecutor. Why isnt whatever standard applies to personal papers a weaker one, not a stronger one . Last i can answer the question first i think the court cannot refuse to see what others see to quote bromley and the threat in this case of subpoenaing a decades worth of papers not only of the president but his family members, his children and grandchildren as the house has done in this case. Thats an obvious problem with the with harassment and discharging duties 24 hours a day. The president is never in recess and these type of subpoenas are going to be particularly troublesome and burdensome. Are you saying that whatever it is, why wouldnt whatever standard applies to personal papers before the presidency be equal to or weaker than the isndard for material that the workings of the administration at the time . Aside any executive privilege concerns which i understand is not the focus of your question, this court has repeatedly emphasized in kilborn and watkins and everywhere else that congress has power to inquire into the private affairs of any individual. That is distinct from whatever interest they may have informing themselves about the workings of government. That informing power does not extend to the president that informing power does not extend to the president. Branch officials. Are you saying that the Ervin Committee subpoenas were unlawful yes or no . That or not argue address the power of impeachment because its not an issue in this case. It wasnt impeachment. Justice alito . 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 . I think its difficult to imagine for a couple of reasons. Even setting aside the fact that if the president , this court has always required some showing that the information being sought is pertinent. Swath and the scope of the subpoenas issued here creates Serious Problems even in an ordinary case. To directly answer the question,no, the president purple personal papers are not related to anything to the working of government and for the committee to declare him a useful case study is to open the door to all sorts of president ial requests. You could have subpoenas seeking all of jimmy carters financial history simply because he used to be a peanut farmer and they want to case study in agriculture. You could have all sorts of requests for medical records, educational records, any imaginable detail personal records Good Congress has the general power to legislate in lots of areas. Before my time expires, i can ask you one other question i think you said 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 in office that is created by the constitution itself and not by congress . The answer is not very much. They apply avoidance principles to avoid having to decide whether congress has attempted to reach the president. The one example in recent history is the nexen versus general Administrative Services case. Even in that case, it was a very limited right regarding president ial documents. One could imagine may be some hypothetical where there would be limited personal papers that might be relevant to a question regarding custody of official documents. But even in that case, the constitutionality of that was not seeking the president s personal papers and that control remains in the executive branch. Justice sotomayor . Council, there is a long history of congress seeking records and getting them as Justice Ginsburg pointed out from president s. Cases, we havese said, especially eastland, 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 are talking about placing a heightened standard or a clear statement, the various formulations of this, on an investigation that a committee is embarking upon. I understand your complaint about the Financial Services subpoena on the Money Laundering issue. But are disputing that the stated purpose of the Intelligence Committee subpoena at issue, investigation efforts by foreign and entities to influence the u. S. Political process, and related to the financial records of that, that those were irrelevant to that purpose and thats an illegitimate purpose by the investigative committee, the Intelligence Committee . Taking the relevance question first, yes, even if you accept that there is some legitimate legislation that could be had reached the president because what we are seeking is president ial appliances, when you look at pardon, sir. We president ial finances, are asking for his personal tax returns before he became president. Those are very different things. And we are not asking him to produce it. Some of the subpoenas as far back as 1792 have asked for personal papers of the president while being president. This is before he was president. I dont understand. And they are not his papers in the sense of hes not in possession of them. These are subpoenas to private entities. There are a number of issues there. With respect to the custodian issue, this court going back to eastland, has recognize the ability of a person whose records are in the hands of a third party to challenge them and thats certainly the case here. Those papers have to do with executive privilege questions. They are not personal papers. All those cases have to do with papers that belong to the office of the president. Again, these are personal papers. Briefly, counsel . Eastland did not raise that issue. It was personal papers. The main point i would make his whatever presumption this court has previously applied in cases that involve separation of powers, it should not put a finger on the scale for congresses legislative power in this case. Separation powers cases, the court has declined any presumption that congress that. Legitimate power and this is not the first conflict between congress and the president as many of my colleagues have pointed out. We have 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 got more and sometimes the other has gotten more. But there has always been this accommodation seeking. It seems to me what you are asking us to do is to put the kind of 10 ton weight on the scales between the president and congress. Essentially, to make it impossible for congress to perform oversight and carry out its functions where the president is concerned. Youre quite right and what you said before that this is not going to be the last such case. I wonder whether that fact is not not a good reason to reject your proposed rule. Casedont think thats the and for several reasons. The fact that this is the first time that congress has attempted to subpoena this scale and scope of documents from the president. None of the other historical cases involved a direct subpoena for the presence documents the way this one does. It requires this court to draw a line. Its unfortunate the house did get these documents directly from the president but ran immediately to third parties. It limits the number of defenses the president can bring but even on the test, this court has always applied in the scenario, these subpoenas fail every hallmark of a legitimate legislative investigation. Go ahead. Whatever Power Congress has two inform itself as to the workings of government, these documents not relevant to that than that power does not extend to the president who is a separate constitutionally created officer. I think some former president s might contest the idea that these subpoenas go further than have ever gone before and this brings me back to what Justice Breyer has said. These subpoenas are for personal records where the president is just a man. They are not for official records where the president might have executive privilege where we have to worry about the conduct of governance and the way the executive branch operates. As with Justice Breyer, i guess i would like to hear your views on why that wouldnt suggest there is a lower standard here, not a higher one. Because the fact that they seek personal documents doesnt mean they are not targeting the president and the Oversight Committee and the financial the house Intelligence Committee have identified the president in his role as president as one of the motivating factors for their investigation. Noted a broader immunity argument, there are still a need to ensure the president is not going to face undue harassment or distraction and there is a necessity to accommodate him. We think thats best accommodated in this case by applying the demonstrated needs standard. Just as gorsuch . I would like to pick up where you left off. That there is no demonstrated need or substantial legislative purpose. Im sure we will hear the house that there is substantial legislative need. Not defer to the house about its own legislative purposes . To begin, the subpoena power is an implied power and this court made that clear recently. Congress cannot use its implied powers to challenge the structure of government. Requestingchart the president s personal documents is challenging the structure of government. The court did not apply that because it was a battle between the branches as Justice Scalia pointed out in his opinion. Theres simply no need for a presumption on either side whatever might normally apply to thendividual because president has own powers creed by the constitution. This happened in a number of cases. That wet has recognized do not proceed against the president as we do against an ordinary litigant. Whether that was in cheney or the limiting obstruction my question was more practical than that. Supporteds subpoena by a substantial legislative need . Congress iss not really identified with any specificity what actual valid legislation it would enact that directly reaches the president. Even if it had come it has not identified how these documents going upwards of 10 years or unlimited and seeking the most minute financial details about him and his children and his grandchildren, every check, has anything to do with some purpose that would actually be permissible legislation. Of thatany allowance rationale that the house has relied upon with the Financial Services committee is a door that opens to endless subpoenas and harassment any one Party Controls one house of congress opposite of the president. Thank you, counsel. Justice kavanaugh . Thank you, chief justice. Thenixonrgument that needs standards supplied or demonstrably critical standard, explain for me how that would play out in practice in a case like this. In a case where congress is asserting its desire to enact general legislation, i think it will be very difficult. I dont hold out the possibility they could meet the demonstrated need. I dont completely rule out that possibility but i think it is telling that the house devoted all of one sentence to each of these subpoenas, attempting to assert very broadly that they meet the demonstrated need criteria. If there is a situation where Congress Actually 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 informwere necessary to congress and perhaps in that case, they could meet the demonstrated need statute. I cant imagine that these subpoenas could could come could come close as they reach back far. Specific very questions about whether theyre willing to expose a ledge of wrongdoing as opposed to achieving a valid legislative and. Following up on justice kagans point about the future, on page six of your supplemental letter brief, you say it is likely civil litigation over the subpoenas would have been foreclosed at the committee issued them to the president. You say this case is different because specific subpoenas were issued to a thirdparty custodian and there is an implicit assumption that i want to make sure of, namely that absent a court order, the private custodians plan to comply with subpoenas even if the client directs or request them not to comply, is that correct . The recipients of these subpoenas have indicated they consider 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. This court need to recognize that is just not reasonable to expect, in the situation, a thirdparty custodian to risk contempt of congress or other collateral consequences. There needs to be a vehicle to allow for review especially in this case where the president s personal injury is at risk. Thank, thank you counsel. Mr. Chief justice and may 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 years before he was even a candidate for office. The potential to harass and undermine the president and the presidency is plain. Its 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 dont even come close. That creates two problems for the house. It cant satisfy any standard sensitive to article two in the separation of powers and indeed, this court should not decide a serious constitutional question the the full house itself is not confronted. Council, you spent a lot of time in your brief documenting that the purpose of these subpoenas was actually investigatory rather than legislative. If that is a pertinent consideration, i wonder how the court is supposed to look at it. Theld a court be probing processes of the legislators . Should members of house committees be subject to crossexamination on why they were really seeking these documents . Any of thatt think would be permissible. If all we are saying is that you should review the subpoena on the basis of the contemporaneous objective record that is the basis for the legislative subpoenas themselves. We have not, in our brief, turned to legislator statements and have not said they should get discovery into their mental processes. We have said that the chairmans memo shows the executive the objective purpose but i would point to the mismatch between the breadth and the duration of the subpoenas and their asserted purposes. Theyrespect to all three, dont match up with what the committees say they are doing if you look at the information they are seeking. Thank you, counsel. Justice thomas . If followingwhat up on the chief justices question, what if it was clear from those statements you reviewed that their intention was actually to remove the president from Office Rather than the sort of pretextual pretextual it is for legislative reasons . I think if you look at the statement, yes, i think it made clear the subpoenas are not in aid of valid legislation. That is the only enumerated power to which congress is pointed here. The house is not relied on impeachment so you would say the subpoenas are invalid. We are not asking to go back and look at what they said. Im 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 proposal and why they need the documents, the paper says they dont give you any specifics on what they were thinking about doing or any specifics on why they need the documents. Its not the product of carelessness or flawlessness, it is because the purpose here is to expose wrongdoing in the house has never really tried to substantiate why it needs these documents in service of its legislative powers. Thank you. Justice ginsburg . Investigate before legislation. The purpose of investigation is to frame the legislation. You dont have the legislation in mind. You want to explore what is the change, what legislative and reduce or eliminate the problem. For example, the ethics in Government Act, congress may decide that it needs to beef up that legislation. That, foro decide Financial Disclosure purposes, there should be disclosure of tax returns. So, those are legislative purposes, investigate to see if you need legislation of that sort and then to impugn congresss motive and even the police man on the beat, if he stops a car and gives a reason that the car went through a stop sign, you dont allow an investigation into what the subjective motive really was. Here you are distrusting congress more than the cop on the beat. Thatabsolutely agree congress can investigate in service of what legislation might be needed. Our submission is most more modest that when the legislation , when the 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 with respect to private parties. Because of the dangers of harassing and distracting and undermining the president and that is a common theme that runs through the court cases that the president has some measure of protection because you cannot proceed against the president as against an ordinary litigant. Im saying congress is not met that standard here. How did that work out in the paula jones case . Justice breyer . Assume, as i do, that for reasons set out in an opinion by judge griffiths, we are not very disputests at deciding between two powerful political branches. It should be rare. But if it is in front of us, one at apply the standard that is ordinarily applied to every human being in the United States and respect to, for example, grand jury subpoenas . Any human being in the United States, when he gets a subpoena, and go to a judge and say judge, this is overly burdensome. Then he has a chance to show it. Here, if its the president , the court has already written and 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 etc. But we do object to a decision of this court that says apply that, taking into account, the special needs of the presidency just like other human beings. Sometimes they have special needs. They might be an emergency medical worker etc. The court and the d. C. Circuit judge rejected the analogy to grand jury subpoenas served by prosecutors. These are legislative subpoenas, not subpoenas issued by the executive branch for an entirely different interest or concern. These subpoenas need to be in aid of valid legislation, not as a prosecutor subpoena to prove wrongdoing. We think the analogy to Clinton V Jones is helpful. The court rejected an absolute immunity but said the president was entitled to some protection and we are looking at the same purpose. We are not saying the house has no powers to get these records. It needs to satisfy a heightened standard because if it doesnt, these requests will become routine and that weapon in the standing arsenal of the houses of congress i think will be routinely deployed in a way that harms the separation of powers and undermines the presidency. Justice alito . Could you apply the standard that you think is appropriate to the subpoena from the house Intelligence Committee . There, the intelligence can he says it is investigating foreign influence in recent elections. But the subpoena goes back to 2010. It doesnt link in any way to foreign transactions and it it targets only the president. I have no idea why one would serve a subpoena that brought if you were concerned about a more specific topic that would apply to federal candidates more generally. There is nothing in the red brief that explains the mismatch. The Financial Services Committee Says its investigating Money Laundering after the 2008 financial crisis but the subpoena only goes back to the middle of 2016 and it targets the president and it targets the president. If you are in aid of legislation. There are Disclosure Requirements that would apply to the president and there is also mention of conflict of interest legislation that might apply to the president. Power toress have the regulate the president in these ways . I think its very unlikely that even the d. C. Circuit judge did not rely on that because of the serious constitutional questions imposed that if you disable the executor from managing some part of the executive branch, Financial Disclosures are the hardest and what i would say is, if the house in its brief had explained with any specificity what it might want to do to the essex to the ethics in Government Act and white needs these document, we can have that debate. We dont even get there because all they say is we might want to egace which was a build ag house passed before it before they even issue the subpoenas. I dont know what the house wants to do with any specificity so its hard to say whether that valid legislation. Justice sotomayor . Thats the issue, isnt it which is until congress investigates, doesnt have a chance to determine what might be valid and we dont have a chance then to look into the law and say it may or may not be valid. You are asking a court in the guise of a heightened review speculate as to legislation thats not in effect yet. I want to go back to the subpoenas at issue. And their breadth. You know the Intelligence Committee goes back 10 years. But i think its fairly common that mr. Trump, before he was president , was thinking about running for president for a long time. That congress cannot believe that looking at longstanding relationships and how those relationships changed or didnt change is important in knowing what undue influence might be occurring . Our submission is a fairly modest one. It needs to do more about general purposes and say the president would be a useful case study for perspective and generally applicable laws. In what other does any investigative body have to do more than what was done here . For private records. This particular question has not come up in the court in any constitutional content but in nixon, the prosecutor had to show demonstrated need. Toi dont want you to go 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 are not asking for these records postpresident , these are prebeing president. I think that makes the problem worse, not better. They are targeting the personal life of the president before he was a candidate for office. Somewhat different but deeply troubling and equally problematic constitutional concerns. Justice hagan . Go back to your use of Clinton V Jones because i had read that case differently. Of course, clinton says you are supposed to treat the president s request with respect when the president says i need a deposition scheduled at a different time or can we have written interrogatories rather than a deposition. But the fundamental claim of president ial immunity or even president ial difference was rejected in that case. Like to know about your argument i read your brief, read the president s own brief. Case place do you make a as to why these particular subpoenas place a particular burden on the president such that he would be prevented from carrying out his constitutional responsibilities. Thats what i took Clinton V Jones to be saying. Thats the kind of thing the president has to come in and show, a case specific argument about burden on the president. Are you making that kind of argument at all . Yes and no. Not just compiling and delivering to the documents to the house. Mean undermining and harassing the president. Harassing and undermining the president , the point of some of those suits is to harass and undermine the president and the court let them go. They let them proceed. It said the only thing we are going to be concerned about is if you come into us and say, in defending those suits, you will be prevented from performing the responsibilities that we, the nation, need you to perform. Are you making an argument of that kind . Goes towhen the house the limit of its there, it says probably it could not draw the blood of the president or read his diary. The powers they are seeking in the burden they will impose in the aggregate on the president will, i think, reshape and transform the balance of the separation of powers so yes, we are saying these subpoenas and certainly these subpoenas in the will harm and undermine the presidency of the United States, not just this president , the institution of the presidency going forward. Justice gorsuch . Counsel, i believe in early discussions, you indicated Congress Might be able to regulate the area Financial Disclosures of the president. That is one of the interests of 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 as needed . I dont think it has to go provision by provision. To describe the possible legislation with enough specificity to enable meaningful judicial review. We know the president is required is to disclose certain things. Im sorry to interrupt but lets say the house says we are considering legislation on whether to require president ial candidates to disclose their tax returns for a set number of years. Would that be sufficient and if not why not . I think that might be and then you have to look at what they were going after from the various campaigns. It wouldnt get near these president s these subpoenas. They would be identifying with some specificity what they were thinking about doing and then it would tear up the hard constitutional question about regulating a constitutional created officer with respect to disclosures and thats frankly hard question. Thats the hardest of all the possible legislation they pointed to. I dont see how we can have that debate in this case because we had at they havent meaningful judicial review. It goes against the house, not the president. Justice kavanaugh . Thank you, mr. Chief justice and good morning, mr. Wall. I want to top on to touch on one of your procedural arguments. You say the full house needs to authorize the subpoenas, the house argues that resolution 507 did so. What is your response to that . Ofif you look at the terms a7, it as a rubber stamp and blank check. It purports to authorize anything and everything that has or will be done by the committee. It falls short of the need resolution in ramallah and watkins which at least describes general purposes, general legislative topics. Here we are talking about the president. I know three Committee Chairman understood what they were doing. I dont think 218 members of the house have understood that they understand the gravity of the constitutional question they are teeing up. The Court Requires a clear statement from congress on separate debts on separation of powers and we say the same thing here. Thats in the narrowest way to dispose of this case. Second question, history in practice matter in separation of power cases, as you know. Justice ginsburg earlier cited precedent from watergate and whitewater as did Justice Breyer. Dealt with legislative subpoenas. Can you respond to those points about those precedents . For the first 200 years of the republic, it has not been like this. What about watergate and whitewater specifically . The watergate subpoenas were for official records and they were subject to a heightened need standard. The whitewater subpoena is the closest analogy. Its modern and was never litigated. That subpoena looks very much like this one. I dont think there is any historical precedent for in the roadrn is to go down this and the houses of congress can weaponize the subpoena powers in this way, that will be in the standing arsenal for use against the president and any other constitutionally created officer and i dont think it takes much imagination to go to know where that road will lead or having more or regretting having taken it. Thank you counsel. Letter . Mr. Chief justice and may 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 said the legislation does not match up. Mr. Walt referred to the court to the wrong pages of arbery. If you look at pages 1730 six, we discussed in great detail the purposes of the investigation and the subpoenas and indeed, thed. C. Circuits said that house has put legislation where its mouth is. We have specifically provided build. Mr. Wall said 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 dont thing mr. Wall really meant to say that the 218 members of the house did not know what they were doing when they passed that. That is obviously not a valid argument to be made. To something that came out and answer to Justice Sotomayors question. The key records here, some of the ones we want, or ones that President Trump has not even seen. We want records from thirdparty business entities, their analyses, for instance for requests of loans. Thereare documents where is no privacy Interest Income and no constitutional liberty interest, etc. Do have limiting personals principles. It must be pertinent to a legislative purpose, cant violate constitutionally protected liberty interest or privileges and cannot undermine the president s ability to carry out his responsibilities. Lets talk about the standards you propose. Thatuotes in your brief is the concern is subject on which legislation could be had. Could you give me a plausible youple of a subject that think is beyond any legislation that congress could write . I think the best i can do is refer you to the courts decision in kilborn where the court said that congress did not seem to put forward any possible legislation there, it had to do with bankruptcy proceedings that congress is looking into. Do you think bankruptcy proceedings is the subject on which legislation cannot be had . Obviously, bankruptcy could be. Court kilborn case, this thought that no such reason had been put forward. The legislative authority of congress is extremely broad especially of its appropriate. Im suggesting your test is not much of a test. Its not a limitation. Way tont seem in any take account of the fact that we are talking about a coordinate branch of government, the executive branch. Alternative to limitless test that would take account of the fact that you are dealing with a coordinate branch of government . I do and the test im referring you to was the test that this court set thats pertinent to a legislative purpose. Ant this court said in nixon in number of other cases, there would be a limit if congress is interfering with the president s ability to carry out his article to functions and no such claim has been made here or can it be made. Justice thomas . Thank you, chief justice. Discuss how you to the legislative subpoena power is implied or how we arrive at that power. Thats the best part of why we are wondering in the willing dish in the wilderness trying to figure out what standards to use. This court has explained in that theew cases legislative power of congress, the investigative powers stems power is anents obvious and integral part of legislation. We obviously cant have Congress Passing legislation in ignorance. Said most has recently in Franchise Tax board justbecause that because power is implied doesnt mean its not important. Powerstance, the courts of judicial review is not mentioned in the constitution. Power, ar example of a legislative power that is implied . Im sorry, your honor, i dont have anything off the tip of my tongue. Can you give me the earliest example you have of congress issuing a legislative [inaudible] [indiscernible] congress investigated the st. Clair expedition. It didnt actually issue a subpoena in that case but its equivalent of the time and the president consulted with his closest advisors and decided to congressverything requested and that was several years into is there an example of congress issuing a legislative subpoena for private documents . Honor, they, your watkins decision has a lengthy discussion of that but i dont have the very first one. My memory is that this Court Describes that in great detail in watkins. Thank you. Justice ginsburg . The concern has been expressed that congress could be tong the subpoena power harass a political rival. What is the principal, the limiting principle that would say legitimate legislative purpose, yes, looking toward an enacting a law. Thats not harassing or distracting the president. This courts decision is extremely important here. It was not seeking papers of the president but the lower court struck down the subpoena. They said the congressional investigation was no good because it was inspired by politics in this Court Unanimously rejected that as a reason it couldnt be done and the other is clinton versus jones where this court says if there is harassment, the courts can take care of that and thats the answer to the Justice Departments entire brief. There is no responsible claim here that all thats going on is harassment and if there is, this court has said, we are here. Thank you. Justice breyer . You, in respect to the athorization, was there for was there proper authorization of the legislative subpoenas . Rumley says look at the subpoena and its authorization. At the time the subpoena was issued. Perhaps the time it was challenged first. Compare it with the Senate Select committee on president ial , look at thevities authorization. The authorization there is highly detailed, highly specific and it suggests they could go after the information held by any person including the president. Cameauthorization which , writes achallenge pretty blank check for anything without detail. Those are arguments made by the other side. I would like to hear what you say. Thank you, Justice Breyer. This court said clearly you dont just look at the authorization. There was no authorization there. Yes, resolution 507 is important broadly worded but it itsxtremely specific in third whereas clause on page 241. It refers to these very specific subpoenas. Authorization is much different now in the modern congress. The modern congress has horized Committee Chairs to authorize to authorize committees to issue subpoenas and they have delegated that authority to its chairs. The modern congress, there is clearly authorization to Committee Chairs to issue these subpoenas. If there is any doubt about that, the full house ratified these very specific subpoenas. After they were issued and challenged . This is after they were issued and challenged. The issuance is authorized by house rules which this court has said it will not examine in the full house because there were arguments made of the full house saying we authorize these exact subpoenas. We ratify the issuance of these subpoenas. It is extremely, clearly worded page 241a of the petition. Thank you. Justice alito . I was somewhat pfaff old by your answer to Justice Ginsburg about the use of congressional subpoenas for purposes of harassing a president. Your final answer was that the courts can take care of that but thats the issue here is whether something should be done to prevent the use of these subpoenas for the harassment of a president. Can you explain what you meant . Absolutely, this court in clinton versus jones and other versus gsa,ixon says we are here to protect the president if there is harassment from congress or private individuals. Here, there clearly is valid legislative purposes and the courts below found there was. Is theour answer protection against the use of a subpoena for harassment is simply the assessment whether intoubpoena is conceivably some conceivable legislative purpose . Exactly and thats what the court said but clinton versus jones and nixon versus gsa thats not much protection. It is protection of congress is interfering with the president s ability to do his job. These subpoenas are to private parties and the president does not do anything when you are interfering with the president s ability to do his job, you mean this will take up too much of his time . Does that include the potential for the use of subpoenas solely for harassment purposes . Solely forwere harassment, they wouldnt meet the standards of being pertinent to a legislative purpose. I think the combination of all of those provide ample protection. That question. R yes, we are, as i have stated, we continue to have a work in progress as we built the testing capacity. We have established the targets with the states of over 12 mayan tests over the next four weeks. We think those targets will be good in may and june. For the purpose of preventing the harassment of the president because the only requirement is that the subpoena be relevant to a considerable legislative purpose, and you cannot think of a single example of a subpoena that would not meet that test. Honor, because there may be constitutionally based privileges or things like things like executive privilege. There might be constitutionally based privileges, which privileges apply to a subpoena for records in the hands of a third party. There could be would you name one . Executives to be privilege could enter in. State secrets privilege could enter in, depending on the circumstances, your honor. Let me ask you one more thing if i can, and there is time. On using any limits president s records relating to the need for legislation, for example, the salary and the net worth of the future president before election was that of a person who would be regarded as middleclass and congresses we want to study the possible revisions of tax laws and the provision of services to members of the middle class, so we are going to subpoena all available information about the assets income expenditures and services obtained the sitting president and his family for purposes of considering that prewould that be permissible . A good question. Here, remember the Financial Services committee is doing a Broad Administration of this sector, and there is massive that before heg, became president , his personal records and his businesses and family have been heavily involved in those very activities. We are investigating numerous other banks and individuals having nothing whatsoever with the president for this is part of a much larger sector wide investigation, and Justice Sotomayor counsel, we recordsd that personal with the aim of making the president a case study threaten to run afoul of this court beseeching that there is no congressional power to expose for the sake of exposure. The other side points to some hypotheticals that are troubling , the president s transcripts simile to pass on educational reform legislation or subpoenas of his personal medical records, simply to enact General Health care reform. Tell me what we say to ensure against those hypotheticals. And against a proposed subpoena that might be just for the sake of exposure. A couple of answers, one you said, just for the sake of exposure is no good, but this court said exposure involving Government Activities can be. Pertinence would be the key, pertinence to a valid legislative purpose and here the Intelligence Committee, there is an obvious need to focus on the president s financial records to determine if the president is subject to foreign leverage. It is obvious that it ties in with that legislative purpose. we aresotomayor limited in time, and on that issue of what laws are possible, onan see the argument conflict of law, but arent there already a lot of disclosure laws in place . How could this investigation help improve those or change those . Mr. Letter i assume you are referring to disclosure by the president , so we would have to look to see what exactly the Oversight Committee was looking at. Do we need better laws about conflicts of interest . A president about dealing in contracts with government agencies, the congress could limit government agenciess ability to keep contracts with elected public officials. In addition, congress maybe would want to provide for more exposure of assets and conflicts of interest. was theotomayor breadth of these subpoenas litigated below . Yes, your honor, those claims are made and they are discussed by the Second Circuit and the d. C. Circuit judge must of those were fully litigated below. Kagan in talking to the chief justice about the limits on congressional power, tell me if i am quoting you correctly, you said a subpoena could not impair the president in carrying out his constitutional functions. Right . Mr. Letter there would have to be a balance there. It you saidn and no such claim has been made or took be made, and i also the briefs not to be making that claim, that the subpoena would impair the president in carrying out his functions. Mr. Wall told me he was kind of making such a claim because he thought this subpoena would undermine the president in his job. I guess i would like you to comment on that. Is fascinatingt because i wrote a note on that pit that argument was not made in the departmentss wreath to my knowledge anywhere. My friend mr. Wall mentioned it but there is no way this could interfere with the president because he does not have to do anything. This is a subpoena to banks and the accounting firm. As i said, some of the key documents we want, the president probably has never even seen or does not know they exist. We want to know the bankss analyses of his request for loans, but yes, your honor, that argument was not made in the briefs. Kagan if you could talk about some of the history that your colleagues have talked about, what do you think the history shows us with respect to this issue . Mr. Letter very briefly, what it shows is it ties in with the key principle of lot that this court has set, history can help inform what the constitution means. There is a lengthy history of president s either voluntarily or not voluntarily complying with requests by congress. President rough grant, and jackson, in more modern times, nixon, reagan and clinton, all complying with, either voluntarily or not, for instance in the nixon case, he voluntarily provided certain returns, but not all of them. Congress then got more pursuant to statutory authority, like a subpoena come from president and his family tax returns. I do not think either the Justice Department or mr. Trump answered that hypothetical. History really matters here and it shows that the arguments being made here by the president are astonishingly, asking you to ignore a massive amount of history. Gorsuch normally we use Law Enforcement tools like subpoenas to investigate known crimes and not to pursue individuals to find crimes. That is a principal you are familiar with from your time with the department of justice, and i am wondering what principal you offer us here that could prevent that danger. The first one would have to be pertinent to a purpose, but i think as we have explored, that ,s broad and may be limitless one would suggest on the other. Constitutional privileges, if you are investigating someone in their private capacity are going to be few, may be attorneyclient privilege, and it cannot be burdensome i heard was your third, but where everything is online and can be handed over on a disk or a thumb drive, that pretty much disappears. What is left to protect that important value that i know you share . Mr. Letter i do sure that, your honor. I answer it this way because going to stick with the pertinent legislative purpose because congress did a massive investigation of what happened at nine and obviously let me stopch you, i apologize, but i would think a federal prosecutor might say that an investigation of an individual could be pertinent to a criminal investigative purpose because there are so many federal crimes out there and it is possible this person j walked or failed to pay his taxes or a legitimatet is purpose for sure. That realm . S out of mr. Letter your honor, i think this largely depends, the only thing i can suggest is as we know, congress cannot prosecute, but it clearly can look into criminal activity in order to figure out whether the laws should be changed or the most obvious example would be this courts decision overturning a key criminal conviction involving whitecollar crime. Obviously congress could do a thorough investigation to determine whether to pass a different criminal law statute crime to doake it a what was done in bridge gate. It is going to be very difficult to separate that two and say what congress is doing in looking into criminal activity to determine if the fbi is doing a good job or whether amend the criminal statute. There will be a rare case where that will be invalid on congresss part. Justice kavanaugh good morning, mr. Letter. I want to followup on the line of questioning that several of ,y colleagues have pursued which i think come down to the idea of Limitless Authority and to to deal with that. [indiscernible] open season on private records of anyone who is president and maybe other government officials also, and they worry about the harassing nature of subpoenas like that. Garces Justice Gorsuch was just explaining this, and you say it is ok, but i think everyone has export with you that just about everything can be characterized in terms of a subpoena as pertinent to legislative purpose. Answer think you could that question about something that was not. The question then boils down to how can we both protect the house interest in obtaining information it needs to legislate but also protect the presidency . How can the Court Balance that interest . Why not employed the critical standard or Something Like that, this is what the other side was say, as something that is borrowed from a different context, but that might serve to balance the strong competing concerns here. Mr. Letter i have several responses. The first one goes to the last thing you said about why not employ a demonstrably critical test. I do not know how the court would do that without violating the separation of powers. I was reminded by the congressional leaders that they are doing investigations often that they do not know where the legislation might go with that. I do not know how you would force congress to do, show some sort of critical be the same way that is shown in the investigation where executive privilege is exerted, and that context has been the tried and true about 50 years . Mr. Letter because then you could demand that the executive branch show that its reason for theing something outweighs executive privilege claim, but here, we are not dealing with executive privilege at all. These are financial business records. It is difficult to see how these could come within that kind of balance that would override congresss authority to do investigations. The one other thing i can suggest is this court has suggested, is the voters, but also nixon versus where this court said the president has immunity from certain kinds of claims, the court said that one of the reasons that is ok is because we have congressional oversight of the president. This court specifically used that to justify absolute immunity for the president in other areas. In clinton versus joines Justice Kavanaugh can i interrupt, what about medical records . Mr. Letter they would almost always be not pertinent to valid legislative purpose. On the other hand, why wouldntugh they be pertinent to say mr. Letter i am 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. The most important Public Health statute of many decades, i do not think would be affected by that at all. Im sure we can come up with some odd hypotheticals where Residential Health would clearly be relevant, it may be changing the statutes that involve the succession of when a president becomes incapacitated, i suppose. , thered beongress no valid reason for congress to ask for the president s personal medical records that i can think of. Mr. Letter, i know we will be delighted to learn that we have time for additional questioning, so i think i will begin with myself and then we will go through and just see how far we get. On thing that has not come up is the fact that we are dealing here with three separate committees and we are concerned, as you have recognized, with the potential for harassment. How does that play in . At one point personaloint do the records become a factor in the analysis of the issue of harassment . Mr. Letter i am very pleased theres more time for questions, but your honor, it would seem to me that there are situation, and again you have to look at clinton versus jones, when it reaches a particular stage and we are nowhere near that. Subpoena by the intelligence the subpoenaes from the Financial Services committee to Deutsche Bank because specifically intelligence did not want to cause too much of a burden chief Justice Roberts what about, as you know, very shortly in the second case we will talk about subpoenas from District Attorneys, how does that factor in . Should those be counted in the balance in terms of when a congressional subpoena becomes harassment . Mr. Letter definitely not, since we have nothing to do with the subpoena, we had no contact with the city of new york for that subpoena was issued. So i do not know how that would tell us anything about what the house chief Justice Roberts what about the senate, i suppose they can issue subpoenas . Mr. Letter of course. Chief Justice Roberts how do you balance that . You have three different committees seeking subpoenas, the District Attorney in new york, depending upon Party Composition of different bodies in the future, you might have the senate joining. How do you measure harassment . Mr. Letter i think what you would do is if these were subpoenas from the house and the senate, a massive number going to the white house, then there certainly would be at a certain point where it would affect the ability of the white house and the president to function. No doubt about that. These subpoenas are 23 private businesses. Chief Justice Roberts thank you. Justice thomas . Justice thomas i would like to followup. At some point there is a straw that breaks the camels back, and it seems as though you are saying we should look at these in isolation as opposed to in the aggregate. Why wouldnt we look at all of them and look at the full effect and whether at some point it debilitates the president . Mr. Letter i am sorry, i must have missed goeken miss buchen. I meant to say yes, if there are a massive number of subpoenas from the house to the white house, and the white house can come in and say, we cannot do anything, all we are doing is answering subpoenas all day. This is impacting the ability of the president to do his job. Justice thomas why would we limit that to the house and the senate . It could be every grand jury, every prosecutor . At some point this thing gets that one could be manageable, but 100 could be impossible. Honor is right, and if our subpoenas were on top of numerous others from grand jurys around the United States, you could look at that, but let me emphasize, our subpoenas are not to the president. They are two private business entities nothing is required of the president for the subpoenas to be fully complied with, not a single thing is required of the president or the white house. Justice ginsburg i will pass. Justice breyer he has emphasized a ghost or private person and for tax returns, but the ones ive seen go far beyond that. To 15 trump affiliated entities and ask for all documents, closing request for information of the parties, etc. That is a lot of information and some of it is pretty vague. If somebody subpoenaed you for that information or your tax or your tax accountant or somebody in your business, [indiscernible] might that not take effort . My problem is there may be burdens here. Here. Party third party or not, and not just political urgency burdens. This information does bother me and the fact that what i hold today also apply to a future senator mccarthy asking a future Franklin Roosevelt or harry truman executive the same questions, that bothers me. So what do i do . Fully understand that concern. None of the subpoena recipients have complained about burden. The reason they go back a ways is because i am talking i am talking about the president s burden and having too much to all of those documents you are requesting which go in my opinion way beyond just tax returns. Answers, we are going far beyond tax returns, but no privilege claim has been made in this case, no party, nobody has raised that claim. Second is the are investigating among other things Money Laundering and that requires looking at a whole range of financial activity. What we are doing here is exactly the kind of thing that senate and house staff do when they are looking at Financial Sector and what kinds of reforms should be made to the banking industry. Let me say one more time, there has been no claim of privilege time, there has been no claim of privilege here [indiscernible] alito if one house of congress were to subpoena personal records in the hands of a third party regarding a member of the other house, lets 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 very interesting question. The first thing that comes to mind is, wouldnt that violate this debate clause that no member of either house or senate can be question anywhere else. So if there is a request for records, if it is tied in in any way to the legislative functions of that senator or house member, that would be invalid. Question mark similar to the subpoenas here, they do not of anything to do with the performance of the legislative function, records regarding the personal activities of this individual, purely personal activities, and we can even say they contain certain things that were done before the person was elected to congress. And does part of your hypothetical include they would be pertinent to a legislative purpose . The committee wants to use someone in a leadership position in the other house is a case study for possible legislation. It met yourif hypothetical, i think that would be a valid subpoena. Im not aware that it is ever happened within the history of the house or senate. I do not know of any thing that would be like that. Sotomayor that is the whole point. Justice alito raised this hypothetical because he says shouldnt we look at history, and it is only modern history where committees have asked for personal papers, so he presumably with discount that and say shouldnt we respect the separation of powers that what is personal to the president s personal to a congressperson . I have to disagree strongly with one thing you said, that the history, we have history of seeking, congress seeking personal papers of jackson, buchanan, etc. Theres been lots of seeking of personal papers for many decades. This is not just a modern practice at all. Kagan im wondering if i could ask you to comment on the difference between the oversight and Intelligence Committee subpoenas, and on the other hand the Financial Services subpoena, the first two subpoenas address the president directly, the Financial Disclosures, conflict of inerest, foreign involvement president ial campaigns. Was taking committee a much broader scope, and went that is true, when congress does not 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 are focusing on residential records for that purpose . Mr. Letter i think that still would get into what raised major separation of powers problems as when askedld have chairmans of various committees to come testify as to what they were doing and why. You are certainly right in your description. There are 11 subpoenas issued by andncial services, etc. , to do with them have the president. This is a broader investigation. And theres a Massive Public about the subjects of the subpoenas and their banking practices. Sanctionedboth been many millions of dollars by regulators for failing to properly comply with Money Laundering laws. Justice kavanaugh i want to followup up on questions from justice alito, and this really there ishe fact that concern about what the limiting pertinent to is and hisng purpose, hypothetical about a committee would start subpoenaing numbers of congress of the other house or party, and you said that has not happened, but isnt the whole point that when you start down this road and this cart articulates too low a standard that Something Like that will start happening . That is the concern that i heard identified in that hypothetical. I went to give you a chance to respond to that, why it would not spiral. Mr. Letter i appreciate that chance to responses, and first remember exactly what this court did in clinton versus joints. Are going toid we let this happen because, and then but we will, the courts will monitor the situation and if there are abuses, the courts are still here. I also realized it might be fair getting into things like privilege information or information involving constitutional liberty interests. That is what this court has struck down, criminal convictions for subpoenas that do involve Justice Kavanaugh personal records exactly identical, but for members of Congress None of those would apply, at least under what you have articulated so far today. Mr. Letter i think that is right, but i come back to clinton versus jones, this court issued a very clear decision saying we will allow this one, but obviously the courts will monitor this. If contrary to what has happened in the past, our lengthy history, if there are situations when the president possibility to do his job is undermined, thank goodness the courts still exist that they are there to take care of it. Chief Justice Roberts would you like to take a minute to wrap up. Mr. Letter i greatly appreciate that. Just slipping back to my notes, as i was saying before, remember that some of the key records here are ones 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 withse we are not dealing with situations like a lot of the Justice Department argument focuses on, as i said before, this court exists fortunately to fix those kinds of situations should they arise. Chief Justice Roberts thank you. Mr. Strawbridge, you have two minutes for rebuttal. My friend from the other side struggled with every hypothetical that he was to setbout his ability some category of information that would not be obtainable under his theory. I think that is telling because there are no limits to their theories. Lets just consider the example that was given regarding the medical records for theres no reason why the president and his family could not be declared useful case studies and therefore congress would send out a subpoena for the records. The president eats and drinks like everybody else and congress naturally has the ability to regulate food safety. That doesnt mean that congress can subpoena medical records or even his dna. My friend refused to even rule out that categorically low and i think it is telling that he cannot provide any meaningful limit today. I think that is constant with the fact that they fail to consider what the legislative need is. This is an implied power in eight of legislation, not a warrant to investigate wrongdoing going back 10 years. 28 and at no point in the argument section of their brief does he try to tie any particular proposal specifically to the president , the finances, let alone the documents that they secure. This is not an attempt to preserve the separation of powers. On that point i wanted to note that the Watergate Committee did serve congressional subpoenas under the legislative power, and the d. C. Circuit invalidated it just as this court invalidated the attempt to hold in contempt violated theen it separation of powers. [indiscernible] if this Court Accepts the path that the house is attempting to lay, the decisions we low should be reversed. Thank you. Chief Justice Roberts thank you, counsel, the case is cemented. The case is submitted. You are watching the oral arguments of the u. S. Supreme court rate coming up, trump versus vance, whether the president needs to comply with the grand jury subpoena of his financial records. The president maintains he is immune from state prosecutions while in office. Following in about an hour, joint Jeffrey Rosen leading a live discussion with scholars about the cases today. The coverage live on cspan, cspan. Org. You can listen on the free cspan radio app. After that, the Senate Judiciary committee holds a hearing to examine the issue of corporate liability as states begin to pandemic. D the live coverage begins at 2 30 eastern. Now Supreme Court oral arguments will continue live in a moment. Chief Justice Roberts we will hear argument next in the case of donald trump versus cyrus vance. No county District Attorney in the nations history has issued criminal process against the sitting president of the United States and for good reason. The constitution does not allow it. Tim bray president ial immunity is required by article two and accordingly the supremacy clause
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