Transcripts For CSPAN Supreme Court Oral Argument In Trump V. Vance 20240712

Cspan, created by americas Cable Television companies as a Public Service and brought to you today by your Cable Television provider. Today, the u. S. Supreme court handed down rulings regarding access to President Trumps finances. In a 72 vote, justices ruled the Manhattan District Attorney connexus President Trumps financial records including tax returns. The court also ruled 72 to send back to lower courts a case concerning congressional subpoenas for President Trumps financial records. Read those decisions at cspan. Org. Up next, hear the oral argument case,e trump versus mass which deals with the Manhattan District Attorney getting access to trumps financial records. Argument next in versus 635, donald trump cyrus. Chief justice. R. May it please the court. No county District Attorney in our history has issued a criminal process against a sitting president , and for good reason. The constitution does not allow it. Immunity president ial is required by article to end accordingly, the supremacy clause that beats any authority the da has under state law as to the president. The Second Circuit is wrong. If not reversed, the decision weaponizes 2300 local das. An overwhelming number are elected in their fight accountable to constituents and thereby accountable to constituents. This would allow any da to harass the president and subject the president to prejudice, and state rent juries could issue compulsory process is in the forms of subpoenas targeting the president. This is not speculation, it is what has taken place in this case and the subpoena we challenged. We assert the subpoena does not serve a legitimate legislative purpose and were burdensome. Yet, the da copper do almost verbatim the House Oversight Committee Subpoena with an additional 13 words seeking the president s tax returns. How revealing. This same language used by congressional committees would subsequently be copied by the new york District Attorney, covering the same documents and same and sent the sabeans, yet reportedly for different reasons. Under article two in the heightened scrutiny standard under nixon, the subpoena we challenge cannot survive. As the Second Circuit concluded in the da represents, the president is being investigated for potential criminal violations with a local da issuing a coercive process against the president. Thank you. Argue the grand jury cant investigate the president . Seculow we have targeted the utilization of temporary immunity here to the subpoena. Words, it is ok for the grand jury to investigate, except it cant use the traditional and most effective device grand jurys use, the subpoena . Sekulow it cant use a subpoena targeting the president. That would be unconstitutional. Roberts i dont understand your theory in terms of distraction. It would seem to go much farther than resisting the subpoena. I dont know why you dont resist the investigation in its entirety, or why your theory wouldnt lead that. Y our position is the criminal process against the president. That is before the court, criminal process targeting the president. It violates the constitution. We did not seek an injunction against the grand jury investigating the situation with the president. Roberts you focus on the distraction to the president , but i dont know why, in clinton versus jones, we were not persuaded that the distraction in that case meant discovery would not proceed. Things thatfferent distract different people, but i would have thought discovery in a case like clinton versus jones, even though several, would be distracted, as you argue the grand jury proceedings are here. clinton versus jones was federal court. This is a state court case. That was a civil case and this is a criminal case. As this court noted in its opinion, if the clinton versus jones case originated in state court, it would raise different issues than separation of powers, and this court said any direct court direct control estate court over the president make implicate concerns that are different under separation of powers. A couple of questions. Youinterested in whether could point us to express language at the founding or ratification process that provides for this immunity. Jay a couple. Betweens a colloquy Vice President adams and senator ellsworth, they talked about process against the president and took the position that any process would be constitutionally problematic. Thomas jefferson wrote letters that allowing local magistrate banter about a sitting president from north to south and east to west would interfere with the president s responsibilities. This court in a previous argument said the burdensome nature is categorical. You cant look at just one subpoena. It is the potential or 2300 das come are just 1 , 23 das issuing process against the president. But the concern over interference from our founding with residential responsibilities was discussed. That is why in the constitution there is a process to deal with it. Is a make a difference when the subpoena cost with thirdparty . not here. The respondents have conceded they are seeking the president s documents. These are the president s documents. He is the real party at interest nt has the burden, including review over existing privileges and what these documents might entail. Justice ginsburg we have said that in the grand jury context that the public has a right to everyans evidence mans evidence. Is it your position that save manse president , every evidence is protected by privilege . Privilege here. Nonprivileged, nonconfidential papers. So is the grand jury right to every mans evidence inclusive of the president . And i want question, you to answer specifically, polly jones held the president held thejones president was not immune to civil suits for conduct before taking office. Paula jones had soon did had sued in state court rather than federal court, would clinton have absolute immunity . the second question first, this court in clinton versus jones said if the case was brought in state court, it would raise issues of concerns over local prejudice. It was different than the separation of powers issue at play. There were issues involving article two and the supremacy clause. The court said that. Mansegard to every evidence court, this court has recognized the president is not to be treated as an ordinary citizen. He has responsibilities. He is a branch of government. He is the only individual that is a branch of government in our system. Our position is that the constitution, in structure and text, supports the position the president would be temporarily immune from this activity, from a state proceeding, while he is president of the United States. Ginsburg every mans evidence excludes the president . not that it excludes the president , the president is not to be treated as an ordinary citizen, and this is temporary immunity while the president s office. Is in office. We think that is required by the constitution. Justice breyer you make a point of 2300 District Attorneys, but in clinton versus jones, there might be one million, tens of thousands of people who might bring lawsuits. Perhaps all are unfounded, but they could file the paper. Why isnt it sufficient to apply just ordinary standards . Any person that gets a subpoena can come in and say that it is unduly burdensome. Add what counts as unduly burdensome for a doctor that is in the middle of an operation might be very different from a person who is a salesman, and similarly for the president , all the factors you raised good, could come under the title unduly burdensome. So why not let the president show you how this is unduly burdensome. I am going to spend time and effort figuring out all these things and what they mean, etc. And if he shows unburden if he shows undue burden, he wins. Otherwise, not. That is true with every person. That is clinton versus jones, why not the same here . Jay the hypothetical you just gave roofs the point. By the time you prepare, review, analyze various requests, just in these three cases that we burdensome shows the nature. And then, to require the yourdent, as you raised in opinion in clinton versus jones, that burden is met just by us being here. But to require the president to have to respond to each and ry state District Attorney Justice Breyer he would hire a lawyer to tell us what the burdens are. That wouldnt take a lot of time. Then he wouldnt be burdened, because he would go in and say what the burdens are. And if you are right, you would win this case. The other side are saying there are no burdens here. Let them figure out what they are. Establishes the problem with a casebycase analysis. Subpoenaery case, the list in the petition, is a of documents that are extensive. Could you imagine just for a assume thes president were to hire me, that i am going to call the president today and say, i know you are handling a pandemic right now, but i need a couple of hours with you going over a subpoena of documents that are wanted by the New York County District Attorney. Justice alito arent 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 . Think of this. Suppose the prosecutor has reason to believe the records contain information that is not available from any other source, about whether a third party committed a crime, as opposed to waiting until the end of the president s term, making the prosecution of the crime impossible or at least very difficult. Would you say that in that circumstance, it would be permissible for a grand jury subpoena to be enforced . in a state proceeding, issues of time and 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 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 its a different case, the same constitutional principles would be at play, but, here, were talking about criminal process targeting a president. Justice alito well, was the answer that that would be permissible if the prosecutor were willing to say that the president was not a target, whatever that means . Sekulow well, it wouldnt mean that its constitutionally permissible. It would raise different issues for the president to consider. But, constitutionally, i think that we have to be i have to be very clear here. 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 thank you. Chief Justice Roberts thank you, counsel. Justice sotomayor . Justice sotomayor counsel, it seems that youre asking for a broadness of of immunity that Justice Thomas pointed out is nowhere in the constitution. And, in fact, the constitution protects against president ial interference with state criminal proceedings. It doesnt allow the president to pardon offenders for state prosecutions, for state criminal convictions. And yet i i find it odd that you want us to rule that theres essentially an absolute immunity from investigative powers, the height of a states subpoena Police Powers, and that we would permit a civil damages case by a private litigant, which we did in clinton. 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. Dont we usually presume that state courts and state prosecutors act as they should and in good faith . Sekulow even if you were to assume that Justice Sotomayor and doesnt if you let me finish. Sekulow yes, please. Justice sotomayor and doesnt the president always have the opportunity to show that a particular subpoena, in fact, was issued in bad faith . The president was given that opportunity here. And a affidavit, i understand, was filed under seal setting forth the reasonable grounds for the investigation. I i im not sure why hes entitled to more immunity for private acts than he should be for public acts. Sekulow well, hes the president of the United States. He is a branch of the federal government. Hes the Justice Sotomayor we only give we only give judicial officers and congressional officers immunity for acts within their official capacity. If they dont, if judges sexually harass someone, weve said thats not within judicial functions, they can be sued. If congressmen do the same thing, they can be sued. So my question still comes, youre asking for a broader immunity than anyone else gets. Sekulow well, were asking for a temporary chief Justice Roberts you have time for you have time for a brief answer, counsel. Sekulow i will. Were asking for temporary president ial 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. Id also like to point out that there are hundreds of members of the United States congress and 100 members of the united state states senate, there is one president. Thank you. Chief Justice Roberts Justice Kagan . Justice kagan so, mr. Sekulow, youve said that a number of times and made the point, which we have made, that president s cant be treated just like an ordinary citizen. But its also true and, indeed, a fundamental precept of our Constitutional Order the president isnt above the law. You know, 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. And so i guess going back to Justice Breyers question, why isnt the way to deal with these two things, that the president is special but that the president is like an ordinary citizen in that hes 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 courts 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 isnt that the right way to do it . Sekulow for two reasons. First, and i think the case here is the perfect example, here, the District Attorney copied verbatim the House Oversight committee and ways and means Committee Subpoena verbatim. So and 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 its very specific here state process as to the president targeting the president s documents in a criminal proceeding should be prohibited. Chief Justice Roberts Justice Gorsuch . Justice gorsuch counsel, i id like to return to the question of clinton versus 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, others there could have been multiple versions of that in multiple different districts across the country. So whats whats different about that . How do we avoid the conclusion there that the president wasnt subject to some special immunity but here is . Sekulow i think i think the nature of the case that were 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. 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 theres more of these, were already here on four subpoenas or three subpoenas, three cases involving multiple subpoenas, much of which covers the same documentation. So i think it it, in fact, Justice Gorsuch, proves the point. Were here because the house has asked for documents that now the District Attorney is asking for. So we are seeing that in real time. How is rsuch Justice Gorsuch how is how is this more burdensome, though, than what took place in clinton versus jones . I i guess im im not sure i understand that. Sekulow well, i mean, theres a big distinction between a defendant in a civil case and a principal in a criminal case, here by the state district or the local da. Justice gorsuch let me stop you there. Sekulow yes. Justice gorsuch yes, there there there, they sought the deposition of the president while he was serving. Here, theyre seeking records from thirdparties. Sekulow but theyre his records from thirdparties, Justice Gorsuch. The thirdparty is simply the agent custodian of the president s tax returns, on the president s statement of financial conditions. So these are the president s documents that theyre asking. And whats 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 the local District Attorney from having the president testify, having the president president tried . Chief Justice Roberts Justice Kavanaugh . Justice kavanaugh thank you, mr. Chief justice. And good afternoon, mr. Sekulow. Mr. Sekulow good afternoon. Justice kavanaugh just following up on Justice Gorsuch, just explain, if you can, the rationale for having one rule for criminal and another rule for civil. Just assume theres one criminal investigation. Thats it. Mr. Sekulow well Justice Kavanaugh and just explain the rationale for a different rule there. Mr. Sekulow well, its not that its a different rule because, in this case, because its 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 the criminal nature of it creates a burden very distinct from a civil case, to be clear. Someone that is targeted Justice Kavanaugh why why is that . Mr. Sekulow 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 not a loss of liberty. So theres a big distinction between a civil case and a criminal case in that regard. And i think that impacts the the standard upon which this court should be looking at the president s temporary president ial immunity. Were talking about stopping a process targeting the president , this subpoena targeting the president. Thats what were talking about here. It is that burden that is our concern. Justice kavanaugh i think the other side says that the position youre articulating is a bit more consistent with Justice Breyers concurrence in clinton versus jones than with the majority opinion. And in his concurrence, he said that judges hearing a private civil damages action against a sitting president may not issue orders that could significantly distract a president from his official duties. Its pointed out that that language was not in the majority opinion. What do you think about how we should assess that mr. Sekulow well, i think that civil discovery Justice Kavanaugh that part of clinton versus jones . Mr. Sekulow versus criminal process is are two very distinct processes. And in a in a civil context, in a civil proceeding, theres a 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. This is a state proceeding initiated by the local District Attorney against a sitting president of the United States. So the 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 Justice Kavanaugh how do you d. L. Mr. Sekulow would be violated Justice Kavanaugh sorry to interrupt. Mr. No, please. Justice kavanaugh how do you deal with statute of limitations issues . Mr. Sekulow well, statute of limitations 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 to start a process like that or if there were to eventually be action. But i i need to say something. Chief Justice Roberts thank you. Thank you, counsel. Mr. Sekulow yes, thank you. Thank you, mr. Chief justice. Chief Justice Roberts general francisco. Mr. Francisco the 2300 secutors mr. Francisco 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 2300 prosecutors across the country necessarily place more emphasis on local interests than national ones. A special needs standard ensures that federal courts balance the prosecutors local need for information against national interests, including the president s need to do his job. Second, ordinary grand jury rules are not designed to protect article ii interests. Thats why, in nixon, the court 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 kind would a court be required to proceed against the president as against an ordinary citizen. And, here, the District Attorney hasnt tried to meet the special needs standard. Chief Justice Roberts general francisco, we we just heard mr. Sekulow argue in favor of an absolute standard, no circumstances, no how. Your position is that, as you say, at a minimum, the special needs test must be met. Of course, mr. Sekulow is representing mr. Trump. Youre representing the United States. Youre arguing for a more flexible standard. So what was wrong with mr. Trumps position . General francisco your honor, i actually think that mr. Sekulow makes a very strong argument on the immunity issue. We just dont think its one that the court needs to address, at least until the prosecutor argues and attempts to meet the special needs standard. Here, since the prosecutor hasnt argued and isnt arguing before this court that he meets the special needs standard, theres no reason for the court to address the broader immunity question, and and and its the courts ordinary processes to try to avoid those broader and more difficult questions when possible, and, here, we think that the special needs standard would fully resolve this case at this stage of the proceedings. Chief Justice Roberts well, in a 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 you talk about, which i gather is the test under nixon, are met, and, under mr. Sekulows standard, the would not immediately go before the court. He was looking for a ruling from us saying that hes absolutely immune, so the court would have no business addressing such a case. Thats a very significant difference. General francisco well, your honor, i think that in both instances the argument would be available to an article you you would be able to make that argument to an article ii federal court. Under our argument, if the court found that the prosecutor hadnt met the nixon special needs standard, it wouldnt need to address the broader immunity question. If it did find that the special that the District Attorney met the special needs standard, it would have to then address the broader immunity question. And all we are saying is that, unless and until the special need issue is addressed at the threshold, theres no need to address the broader immunity question in this case. Chief Justice Roberts thank you, counsel. Justice thomas . Justice thomas yes. General francisco, the you mentioned the level of threat to the president or burden on the president. How do we determine that, when its too much . General francisco well, your honor, here, i think there are a couple of things that you can take into account. First, the fact that were 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, youve already got this risk of local prejudice. And so what the special needs standard does is is that it ensures that theres a federal court thats available to balance the local interests against the national ones, including the president s need to do his job. 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 theyre not sufficient to protect article ii interests since, under ordinary grand jury rules, a District Attorney never has to make a particularized showing of need. Instead, the burden is on the witness to show that the subpoena can have no conceivable relevance to any plausible subject of an investigation. Now that is a perfectly appropriate standard in the ordinary case, but the reason why nixon applied the special needs 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 is entitled to a measure of protection above and beyond the ordinary rules. And the special needs standard is one of those measures of protection. To put point back to Justice Breyers very persuasive 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. Justice thomas thank you. Chief Justice Roberts Justice Ginsburg . Justice ginsburg you stress that the states are subordinate sovereigns, so and so they are subject to the supremacy clause, but you dont give any credit at all to the tenth amendment and the reserve powers of the state. Thats one question that i have. And the as far as the impact of the president is concerned, i think theres 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 dont get it. General francisco so, your honor Justice Ginsburg yes. General francisco so, your honor, in in terms of the tenth amendment, all were 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. And so that necessarily implies that there are limits on what others can do to unduly burden him in his ability to do his job. So all that the special needs standard does is ensure that a prosecutor really needs the president s information before he can enforce that subpoena, since, if he cant even show that he really needs the information, hes necessarily imposing an undue burden on the president and creating a serious risk of harassment. And if you multiply that by 00 20 prosecutors across the 2300 prosecutors across the country, i think that the risk to the presidency is quite obvious. In terms of the nixon case, we are actually arguing for the same standard that the court applied in the nixon case, the special needs standard. Were just saying that a local prosecutor in state court should at a minimum be required to meet the same standard that the federal prosecutor in nixon had to meet and show that he really does need the information that hes seeking, since, again, if he doesnt, its unnecessarily burdensome Justice Ginsburg may i general francisco yes, your honor. Justice ginsburg the grand jury is an investigatory body. It doesnt make at the outset specific charging decisions while the investigation is under way. It investigates in order to determine should there be specific charging decisions, but you would have them make charging decisions before they investigate, and that seems to be backward. General francisco your honor, respectfully, no. I would simply urge that you apply the same standard that judge wald applied in the in re sealed case, which was a grand jury subpoena issued to the white house, where she concluded, properly in our view, that nixons special needs standard ought to apply to grand jury subpoenas. Its not you dont 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 the grand jury subpoena. Chief Justice Roberts Justice Breyer . Justice breyer yes, thank you. General, i i think that the 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 whats for you and i think might be more relevant is 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. Now what i dont see is why you need a special standard more than that here, the ordinary standard. You would need general francisco your honor Justice Breyer you would need a decision by us that its reviewable in federal court. I understand that. But i dont see why you have to go beyond that where the things youre talking about would be taken into account. General francisco 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 article ii 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 needs standard and it said that the prosecutor did, in fact, have to show a particularized need for the information. Thats all that we are suggesting ought to apply here. Justice breyer well, wasnt that in the context of the assertion of executive privilege . General francisco excuse me, your honor . Justice breyer wasnt that in the context of an assertion by the president of executive privilege . General francisco 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 thats 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 a 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 Attorneys own casespecific test, i think you would need the special needs standard. After all, we dont 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 thank you, counsel. Justice alito . Justice alito 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 done 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 your honor, its 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, you would need 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 filings under seal. In all events, we think that thats the type of assessment that needs to be made when youre 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 walls walds very good opinion for the d. C. Circuit in the in re sealed case, where she does walk through in some amount of detail and unpack how the special needs standard applies to grand jury subpoenas. Justice alito how essential must the information be in order to meet this special needs standard . Does it have to be absolutely indispensable, not available from any other source by any conceivable means, or simply very useful . General francisco your honor, its probably somewhere in between those two things. I think its got to be i think its got to be critical to the charging decision, so it cant just be marginally useful or, you know, merely duplicative or 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 dont see how a prosecutor could meet the special needs standard. And if the information he has he currently does have is sufficient for him to make a responsible charging decision, i also dont think he how he could meet the special needs standard. So i think i would put it somewhere in between. Chief Justice Roberts thank you, counsel. Justice sotomayor . Justice sotomayor general, theres 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 thats totally different, where were not talking about a claim of executive privilege, and were not talking of executive immunity. Were talking about private activities that predated the president s tenure. So why are we using all that transplanted language, and why dont we get to a standard that takes care of what youre 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 goodfaith basis for the state prosecutors actions and whether the subpoena is reasonable in its scope and burdens . I dont understand why that sort of standard is inadequate, especially for a proceeding that involves secrecy, like a grand jury subpoena. General francisco for two general francisco 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 is particularly so when youre talking about private conduct thats being litigated in state Court Pursuant to state procedures. So i think thats why he correct correctly predicted that this court would need, in future cases, to develop special protective procedures precisely in this context. And, secondly, i think that the special protective procedure that we are proposing here is necessary even under your honors 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 cant even show that he really needs the information that hes seeking . If he cant make that showing, i think there is a pretty good reason to be a little bit suspicious. After all, very few prosecutors chief Justice Roberts thank you, counsel. Justice kagan . Justice kagan so, general, a couple of times now, in response to Justice Breyer and Justice Sotomayor, youve 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 is not that its burdensome. I mean, the critical factor is to weigh the interests that a president has in communicating with advisors on official matters, often about national security, often about military matters, and and and the need for confidentiality in that, and thats 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 respectfully, your honor, because i think that there are parallel interests. Executive executive privilege, you are right, is meant to protect the confidentiality of communications, but article ii, more generally, is meant to protect the president from being unduly burdened in his ability to carry out his responsibilities. And so and i think thats particularly necessary when youre 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 than national ones. So i think that Justice Kagan but, again, general general francisco when you look at article ii Justice Kagan you dont need the the this heightened standard in order to take account of burdensomeness. Burdensomeness is something that can be addressed in any subpoena, and im 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 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 were saying is that this is the type of assessment that needs to be made in federal court, and the most appropriate and easytoapply standard is the standard that youve already been applying for 50 years under the nixon case. And we think that that is an chief Justice Roberts thank you, counsel. Justice gorsuch . Justice gorsuch counsel, i id like to just explore a little further how this standard would that youre proposing would play out in practice. I i suppose youd have a local prosecutor saying, im investigating a tax infraction, and the best and maybe only evidence of of of that potential infraction are the tax records in the possession of the of the potential defendant. Why wouldnt that meet the special heightened test that youve proposed in every case . And if that if that if it does, then what what have we achieved . General francisco well, your honor, i think it would depend on who the potential defendant is. If the potential defendant is the president of the United States, here, the District Attorney doesnt contest the fact that he cannot indict the president of the United States until after he leaves office. So he wouldnt 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 thirdparty. And i think that would, in fact, be a relevant consideration under the special needs standard. Justice gorsuch i i guess i didnt follow that last portion of it. Lets say the infraction is by a corporation or some entity and we need the the prosecutors going to say we need these materials in order to determine whether there is an infraction. General francisco right. Justice gorsuch why wouldnt that qualify under your standard . General francisco 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 thirdparty, he may well meet the special needs standard. And then youd have to address the broader immunity questions. Justice gorsuch how much general francisco in this particular Justice Gorsuch how much showing of special need is required under your under your standard . A prosecutor says, i have some some reasonable suspicion that theres a tax deficiency by some entity. Is that enough, or would more be required . General francisco your honor, i think it i think its more than that. I think hes got to show that the information hes seeking is critical to him responsibly making a charging decision, that he cant get that information from somewhere else, and the information that he does have is insufficient. Its essentially the same standard the court applied, this court applied in nixon, the d. C. Circuit applied in the in re sealed case. You know, its not like its a hard and fast brightline rule, but it is an administrable rule that courts have been applying for some 50 years now. Chief Justice Roberts thank you, counsel. Justice kavanaugh . Justice kavanaugh thank you, mr. Chief justice. And good afternoon, general francisco. General francisco good afternoon, your honor. Justice kavanaugh i want to follow 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 Breyers concurrence in clinton against jones, he referred to the interest in time and energy distraction, which he drew from nixon versus fitzgerald, a different nixon case, as an independent article ii interest that is distinct from distortion of official decisionmaking, which would be more the executive privilege kind of interest. Is that the article ii interest youre zeroing in on, or is it Something Else . General francisco well, your honor, respectfully, i think its both of them. And as i read Justice Breyers 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 cant unnecessary 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, cant unnecessarily impede the president in carrying out his responsibilities. So, at a minimum, they have to show that they really need the information that theyre 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, youre 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 thank you, counsel. Mr. Dunne. Respondents dunne mr. Chief justice, and may it 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 president s are not above having to provide evidence in response to a Law Enforcement inquiry. Were mindful that as a state actor, our office cannot investigate a president for any official acts and that we cannot prosecute a president while in office. But, here, were talking about a subpoena sent to a thirdparty concerning private conduct by a variety of individuals and businesses. Yes, one of them is the president , but no ones been targeted or charged with anything. Theres no claim of any official acts or any executive privilege. As the courts below found, the subpoena imposes no article ii burden whatsoever and was not born of any political animus or intent to harass. Instead, it was fronted 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 statutes of limitation expire, and even though it could prevent the discovery of evidence that could exonerate the individuals involved. Finally, his novel claim also asks the court to presume that state actors have a reckless mania that will cause them to relentlessly harass president s and that state and federal courts will allow prosecutors to do so. Of course, theres no historical support for this claim, which flies in the face of federalism. The supposed floodgates have been open for generations and theres never been a flood. The only thing new here is the subpoena comes from the state. But absent a constitutional burden, that shouldnt lead the court to abandon its longstanding respect for state criminal proceedings. Chief Justice Roberts thank you, counsel. You know, weve had the cases this morning and this case and they are, in many respects, very similar in on in the case of the subpoena itself, theyre identical, but i think in other respects, theyre 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. Theres often disputes between the white house and congress over documents, and almost always theyre theyre worked out because each of those branches have authorities and powers that affect each other. You know, if the senate asks for documents from the white house and the white house doesnt give them, then the senate says, well, were going to, you know, take our time confirming your nominees and and back and forth. But, with respect to local prosecutors, you dont have that ongoing relationship. So the possibility of working something out is is far less evident, and, if youre doing that, the the stakes are well, its just a little more difficult because there isnt that ongoing relationship. So shouldnt there be a higher standard before we permit the District Attorneys from around the country there are also more of them than the two houses of congress, 2300 of them shouldnt there be a higher standard than in the case of the separation of powers dispute . Dunne your honor, i think our answer to that is yes. And putting aside its relationship or not to the separation of powers analysis, id like to address the the dojs proposed heightened showing standard because we we see that let me put it this way. We see that there are three reasons, i think, why the dojs new heightened showing proposal doesnt work. And a number of questions in the last argument, i think, touched on some of these concepts, if i might. First, one problem is that the the approach that theyre suggesting really reverses the courts prior approach to factfinding 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 there there should be a heightened showing requirement, but my point is only after a president has already established an actual article ii burden. Otherwise, theres nothing for a court to weigh in the balancing of article ii interests against the need for Legal Process, which and that balancing and that sequencing, frankly, was both central in both the nixon and clinton cases. Here chief Justice Roberts would you articulate for me precisely what standard you think should apply in your case and in what sense is it more rigorous than that would apply in the dispute between the white house and congress . Dunne yes. I i i think we believe that a prosecutor, if theres been an an affirmative showing by by a president of an article ii burden, and, of course, the courts have 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 a prosecutor should be required to show, one, an objective basis for the investigation, and two, a reasonable probability the request would yield relevant information. We think language like that would be more consistent with past cases of this court and with the realities of a grand jury investigation. And, frankly, the courts below also already found that weve met that standard here. The 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 courts prior rulings, like the one in R Enterprises that a grand jury shouldnt be burdened by procedural challenges and delays because its a confidential process and not an adversarial proceeding. And the dojs new standard just ignores that. The other problem chief Justice Roberts justice Justice Thomas . Justice thomas thank you, mr. Chief justice. Mr. Dunne, you were about to say how dojs approach would harm the grand jury process. Would you finish that . Dunne yes. And i think i was just addressing that, Justice Thomas. That is, you know, to require us in any given case to run to 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 wed 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. If i might, the second big problem i think with the dojs analysis is that the language that theyve chosen just doesnt work, contrary to why as to what i just set out, because it only applies in the context of a trial subpoena. It calls for a stringent showing that the request is directly relevant to central issues at trial and charging decisions. Again, that language just doesnt apply in the context of a grand jury when no charging decisions have been made. So thats why the the formulation that weve suggested, i think, would be more consistent with whats needed in a grand jury context. But, again, we think that is utterly unnecessary here to apply in our case because, a, theres already been a finding of no article ii burden, and b, we have already met the standard by the by the District Courts finding that our our investigation is wellfounded and brought in good faith. So i dont think this Justice Thomas so what what limits a grand jury process in in new york . What are the limits . Dunne well, the limits are, i think, the same basically as they are in federal court and most other states, your honor. I mean, yes, a 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 its thats that either it should be quashed or or constrained in some fashion. It is there is theres a grand jury judge who supervises all grand juries and their activities, whos always available here. 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 in that footnote in in in in clinton, at this point, its 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 what if you thought it was the president said it was impossible for him to do his job, as opposed to just being burdened . Would that would we have a role to limit or somehow end the grand jury process . Dunne absolutely, your honor. I mean, i think thats thats the point of the casespecific analysis, is is that it gives a a court, and here a federal court, to hear a concern like that expressed, and if the concern is you know, if somehow this shuts my office down or is is a real burden, its 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 a litigation down. Thats the beauty of this courts prior decisions in nixon and clinton and others, which have decided consistently to apply the casespecific analysis and and and have rejected the notion that this is best treated with a categorical prophylactic rule. I just think that thats not appropriate here when its all so casespecific. Justice thomas thank you. Chief Justice Roberts Justice Ginsburg . Justice ginsburg the principal objections that have been raised is that when youre dealing with federal prosecutions, its all controlled by the attorney general. But, here, you have 2300 District Attorneys, each armed with grand jury subpoena power. So the control exists in in federal courts with the attorney general at the helm and no one controlling all of the state District Attorneys. Dunne i understand, your honor, and i think, really, what that gets centrally to is the consistent argument here about the parade of horribles, if you will. And if i could address that, i think theres several answers to that concern. First of all, theres really no empirical basis in in history for this 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 theres not been a flood of subpoenas or litigations or prosecutions of of president s by by states or federal prosecutors. Second, as a practical matter, you know, this notion that there are 2300 prosecutors out there writing with their subpoena pads open, theres 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. Here, new york city, of course, has a particular connection to the Trump Organization and its Financial Transactions because its headquartered here. Its not likely that that more than one or many states, much less two 2300 counties, would ever have that kind of connection to a president s private conduct. Third, i i think, as as as, Justice Ginsburg, you mentioned in the last argument, this view that people that the theres a reckless mania by local prosecutors contradicts this courts longstanding presumption in favor of regularity and deference to state proceedings. And so, to finish off, the limitation, i think, that youre asking about really comes in the in the form of the casespecific 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 its 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. Thats the limitation. Justice ginsburg thank you. Chief Justice Roberts Justice Breyer . Justice breyer well, thank you. What what i agree with you that the two basic principles you said at the outcome are there every mans evidence versus the constitutional statement that the president is the executive, article ii. And they conflict, just as in the first place the first case, the power of congress, article i and article ii conflict. All right. Dunne your honor, i i think that i would say they dont conflict, but, yes, theyre in tension in our view. Justice breyer theyre in tension. Fine. All right. Now a possible solution is to 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. All right. Now all that would take time. The 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. All right . I dont put that as being wedded to it. I want to know your reaction. Dunne well, your honor, i think what youre describing is exactly what this court held in in clinton, and its exactly, frankly, what has happened now in this case, which is, yes, in this case, the the president decided to pursue his his claim of immunity in federal court versus state court, which is fine and now available, i think, in the future to all president s. But i think the the fact that that is, you know, what happened should happen in the ordinary course and which can happen in the ordinary course is, again, the solution and the limiting principle here, because it does itll make it clear that there is a remedy and discourages, i would have thought, badfaith impulses by any state or local prosecutor who might harbor such an impulse and provides an outlet that makes sure that it it cant get out of control. But, again, thats the beauty of the casespecific analysis. I dont think these things lend themselves to categorical prophylactic rules. And thats been the approach from this court from day one. Justice breyer thank you. Chief Justice Roberts Justice Alito . Justice alito as i understand your proposed standard, there would be available review in federal court, and the prosecutor would have to show an objective basis for the subpoena and the relevance of the subpoena to the investigation. Is that correct . Dunne basically, your honor, language like that. I i said point two was a reasonable probability that will yield relevant information, but, yes, thats the concept. Justice alito okay, reasonable probability. What would be your objection to a somewhat more demanding standard . So the prosecutor would have to show that the information cant be obtained from another source or would be very it would be very difficult to obtain it from another source, and the information that 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. Dunne your honor, i, frankly, dont think that any of those concepts are foreign to the standard that i i articulated. And i think they are relevant, in fact, to the objective basis and and relevance points. You know, here, for example, and and and, again, i think the court the court below, the District Court in particular, you know, heard our explanations, and including the fact that, you know, the reason why we went to mazars is not to do an end run around negotiations with the president s lawyers. Its because mazars, as the outside Accounting Firm, is 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, et cetera, which shed light on the good faith or not of the transaction. So my short answer, im sorry, is that i think those those concepts are are are would be fine and not unduly burdensome in the in the context of the standard that i set forth. Justice alito can i ask you one other thing . Do you think that the adjudication of this in 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. Dunne well, your honor, im 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 the fact pattern presents to a judge the prospect that the information, in fact, will become public and the president were were to persuade a judge that the that publication of the documents at issue would themselves impose some sort of article ii burden or other other interference with his executive duties in that given state, you know, i suppose that would be part of the casespecific analysis that the court could could understand and take into account in deciding whether that there should be some limitation or or even a quashing of the subpoena itself. I think thats part of the casespecific analysis. Justice alito i mean, we both know that prosecutors have different that that there are prosecutors who leak all sorts of information, including grand jury information, to all sorts of media sources, including specifically the the new york times. If if there were a showing that that was a risk, would that have a bearing on this . Dunne your honor, its hard for me to im im im not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy. Yes, in all all different kinds of offices, there are, at times, you know, leaks of status of cases and that kind of thing, but i i am not aware, and and and our grand jury secrecy rules really prevent prosecutors, i believe, from, you know, actually turning over confidential grand jury secrecy materials to Justice Alito youre not aware youre not aware of this ever happening . Your office is never requested by media in the new york city area to disclose confidential investigative information . Dunne 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 im 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, you know, the voluminous tax returns or other sensitive documents that have been gathered and which are covered by grand jury secrecy. Thats thats what i just dont see happening here. And i think history supports that view. Chief Justice Roberts Justice Sotomayor . Justice alito when you are making an article ii burden, does that include the burden of harassment, the burden of using subpoenas for political purposes . Dunne yes, your honor, i would certainly include that there. And, again, theres been an express finding below here that there is a the investigation was well founded and that there was no harassment or bad faith in our bringing of these of the subpoena. Justice alito thank you. Chief Justice Roberts Justice Sotomayor . Justice sotomayor 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 need standard . Dunne no, your honor, i was i was i think were all now calling it the heightened showing standard or, in the dojs lexicon now, the heightened need standard, but i think what im articulating is a very different standard in terms of the actual language to be looked at and and imposed. Again, i think that Justice Sotomayor wait. 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 shouldnt call it that, and you i dont know that i understand what difference youre proposing. Dunne im im sorry, Justice Sotomayor. The the 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 im trying to propose is something, i think, which is not so strict and which is not limited to charging and trialrelated concepts but which would be workable in the context of a grand jury subpoena. And, again, whatever the standard is that were articulating, i i want to stress that i believe that we are our office has met that standard here, even under the dojs proposal, because of the findings by the District Court. Justice sotomayor all right. Tell me why the heightened standard would interfere with the grand jury process. Dunne well, i think, your honor, among other things, the the dojs 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 cant indict while in office, you dont need the documents while hes in office. And, frankly, thats an outcome that would apply in every case. No subpoena could pass that test because they basically say, you know, you have to wait until hes out of office before gathering information be be because you dont need it in the meantime. And so their definition of heightened need says you dont need it while hes in office. Well, thats not workable here. Justice sotomayor why not . Dunne because well, 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 of witnesses, which is exactly what 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. Secondly and equally important here, no one should forget that weve got an investigation that that is, you know, 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 if a statute of limitations expires. Thats thats the thats the problem with a delay. Justice sotomayor well, but the other side says the statute would be tolled against the president. But youre right, it wouldnt be tolled against other people who may or may not have committed crimes that he may or may not be a part of, correct . Dunne correct. And and thats important, your honor, for the thirdparties. But just just to address the my friend on the other sides comment about the tolling, im not aware in in state law of any doctrine of of implied tolling that would apply here to to protect the states interests in in investigating and potentially prosecuting, if necessary, down the road. I dont know where that concept comes from. But its never been articulated by this court. Theres no act of congress which permits that kind of tolling here. And so, for us, the statute of limitations is a big concern. Weve weve frankly, weve already lost nine months of time in this investigation due to this lawsuit. And, again, you know, this to every minute that goes by is, you know, basically, without even a a decision on the merits here, granting the same kind of temporary absolute immunity that the president is seeking here. Chief Justice Roberts Justice Kagan . Justice kagan mr. Dunne, youve been talking about how to analyze these burdens in a casespecific 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 that any subpoena interferes with the president s responsibilities or undermines the president in his handling of the office. So whats the answer to that . Dunne your honor, i i may i make three points . I think the fact is that this the court addressed this question, i think, in clinton and concluded that a president cant realistically be shielded from every sort of private distraction, including some forms of Legal Process, especially in our modern age. So thats why its up to a court to evaluate and protect the president , depending on the circumstances, on a casebycase basis. Secondly, here, the claim of, you know, the possible mental distraction is extreme completely speculative, really. Its based on the notion that the president might be, you know, worried and distracted about where an investigation might lead someday. Its not based on any actual article ii burden or interference of the sort the the court was asking president clinton to demonstrate in clinton v. Jones. And, third, id say, if if thats really the concern, i think its 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 his, 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. Thats why the casespecific approach is more appropriate. Justice kagan and and speculative mental distress how about if they really mean political undermining . Dunne well, i mean, if that thats beyond the ken of our office, your honor, and and as, again, the District Court found, there was no bad faith intended by virtue of our our subpoena. So i dont know weve its already been determined here theres no intent to politically undermine, so i dont know how a court could try to evaluate that, and im not sure that would be appropriate, unless unless its Justice Kagan mr. Sekulow mr. Sekulow suggests that youve shown your bad faith by taking the language of the House Oversight committees subpoena. Dunne yes, your honor, and i think weve weve tried to address that. I mean, the simple fact is that, in , when our investigation started, and and thereafter, as weve spelled out, there were a series of Public Disclosures in the in the press about possibly illegal transactions involving tax and other financial 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, its 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 its 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. Theres nothing sinister about it, your honor. Justice kagan thank you. Chief Justice Roberts Justice Gorsuch . Justice gorsuch counsel, id like to return to your colloquy with justices alito and sotomayor, because i guess im uncertain what the daylight is between the test youre proposing and the test the solicitor general has suggested. It seems like both of you agree that these questions should be resolved in federal court, and youve suggested that there is prosecutors should have to be demonstrate an objective basis for the investigation and that theres at least a reasonable probability that the information sought will be helpful to that investigation, that it cant be obtained elsewhere, and that its needed now rather than at the end of 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 you suggested that the difference is the solicitor general thinks there should be an absolute immunity until the end of the term. I confess i didnt read the brief that way. I i read it as suggesting the District Attorney has to show why theres a need for the president s records now rather than at the end of the term. And i i understood your discussion with Justice Alito to agree that that would be a relevant consideration. What am i missing . Dunne i think, your honor, putting aside the the language differences, which i tried to highlight, i think the most important distinction is what i i tried to note at the outset, which is the sequencing of the showings that need to be made, because what the doj is proposing, as i understand it, is that in the first instance, it has to be the the prosecutor who goes to court, goes to federal court in this instance now, and makes an affirmative showing that there that the standard has been met, that theres some objective basis and and its its it cant be obtained elsewhere, et cetera, et cetera. 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 ii burden. And i think thats whats completely backwards and inconsistent with nixon and clinton. I think its much more appropriate for the the president , as the moving party, as here, to be required to make a showing as any other litigant would would be the case, again, here, were talking about purely private conduct, to to explain why this this request somehow impacts not just on, you know, a need to gather documents, which is not the case here, but on an actual article ii burden. And only once that showing has been made should, i think, the burden shift to the prosecution, consistent with past cases by this court, to explain why, nonetheless, its Still Necessary to permit the court at that point to conduct the the balancing of apples and apples in terms of coming to the right conclusion in a in a specific case. To me, thats Justice Gorsuch so, mr. Dunne so, mr. Dunne, am 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 cant be obtained elsewhere, the timing issues, all are relevant considerations; its just who who bears the burden . Dunne yes, your honor. Justice gorsuch is that what youre fighting over . Dunne well, im maybe with the doj, theres more theres less daylight between us than 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 weve already met that test, given the findings of the courts below. Justice gorsuch well, i i know you think you win no matter what. Im im just we have to write a rule thats presumptively of of some value Going Forward and isnt just about one president , but its about the presidency. And im 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 . Dunne thats right. Justice gorsuch im not trying to put words in your mouth. Im im trying to understand. Dunne no, your honor, i think it is the burden and the difference in the language, which ive pointed out to Justice Sotomayor. I think that language, different those differences are important because i dont think that the dojs language works in a grand jury investigation. Justice gorsuch thank you. Chief Justice Roberts Justice Kavanaugh . Justice kavanaugh 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 need standard, you said it doesnt work in a grand jury. What do you do with judge walds opinion in in re sealed case, which took nixon and did apply it in a grand jury context . Dunne yes, well, justice Justice Kavanaugh, as i think you mentioned in the earlier argument, the fact remains that the in 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 thats a very different analysis to be undertaken for a very different purpose. And i dont think one can just simply, you know, import that language and apply it to Justice Kavanaugh well, let me im sorry to interrupt. Lets lets leave that for a moment. But the point on the grand jury versus trial, just on that point, judge walds opinion did take nixon and apply it in the grand jury context. Dunne and and, indeed, in even in the grand jury context, when were talking about a privilege analysis, i think that language is appropriate. Justice kavanaugh okay. Dunne because, at that point, you already have once theres been an affirmative showing that established that that there is a privilege to be to be addressed, then, of course, like with an attorneyclient privilege, for example, its necessary for the court, then, to turn to the demand or the request and the documents that are at issue and evaluate them in you know, in light of Justice Kavanaugh lets lets, if we can, move on to the article ii issue, then. Do you acknowledge that theres an article ii interest at stake here . Dunne yes. Justice kavanaugh and what do you think it is . Dunne i think its its the article ii interest to be free from unreasonable burdens on the duties and obligations of the presidency. And thats, you know, the same analysis that was applied, you know, in nixon and in clinton. Justice kavanaugh and do you think time what Justice Breyer referred to as time and energy distraction are appropriate article ii interests . Dunne well, yes, as a matter of degree. Again, that was that was the courts analysis in clinton. Recall there that, although this Court Allowed the litigation to proceed, of course, appropriately, as i think is the case here, theres a need to make sure that the the courts that are overseeing this kind of objection are undertaking an analysis of what you know, what the burdens are, including at a very practical level. I think the Clinton Court hypothesized that, perhaps, you know, a a request for actual inperson testimony at trial by a president might be inappropriate in in Justice Kavanaugh and 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 id like to hear you address is, in a civil case, and the court emphasized this in clinton versus jones, theres an individual person at stake who has a claim. Theres not the same in a criminal context. Obviously, there are different and very important interests there but not the individual interests. Is that can you address that . Dunne well, thats thats one distinction, your honor. I i suppose on the other side of the coin, there is the important difference that, you know, there are, you know, potentially thousands or 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 the reason for concern in a in a civil context is actually much higher than it should be Justice Kavanaugh and then im sorry, if i can get my last question in. On the federal state, if there is an article ii interest at stake, and you said that there is, its different, of course, from the executive privilege interest, but theres some article ii interest 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. And i just want to give you an opportunity to address that. Dunne yeah. Frankly, your honor, i dont really understand that distinction. I think under the analysis that this court has applied before and the one were talking about now, the the same analysis would apply in terms of a casespecific evaluation in the context of of the particular facts of a particular request. Justice kavanaugh so you dunne whether justice to kavanaugh just to stop you there, youre okay with whatever standard applies to a federal prosecutor in a case where theres an article ii interest also applying to the state prosecutor . Dunne well, i im not sure exactly what you have in mind, your honor, but i i think the Justice Kavanaugh well, i guess the nixon standard. Youre youre not okay with the nixon standard, i dont think, but i just want to explore that. Dunne no, because of the the fact that that was applying to claims of executive privilege. But i think, to get to your point, i i i think what it comes down to is that, you know, in the in the nixon and clinton cases, were were talking about, you know, article iii versus were talking about separation of powers analysis. Here, the analogy is were balancing federalism and tenth amendment concerns about police power of the states against the supremacy clause. So its a different analysis, perhaps, but its very analogous. Justice kavanaugh thank you. Chief Justice Roberts counsel, we have time for a little bit of a second round, and i guess the thing that i would like to focus on first is this question of how you examine the burden on the on the president or the presidency. I just dont understand how it works in terms of you or or the president being asked to devote a certain amount of time to reviewing, for example, in this case, the the the 10 years of documents or whatever. I mean, what is it is is there supposed to be a hearing where he says, heres what im doing, ive got this pandemic thing, you know, chinas causing all sorts of trouble . You know, most president s , throughout their term, have a pretty long todo list. And im just wondering how its 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 wouldnt need a particular hearing on that. Dunne well, i guess, your honor, when were talking about, you know, in in the context of a particular subpoena, like this one, or a litigation or what have you, like in in clinton, again, this court has already decided that you cant shield a a president from any sort every sort of private distraction. And i just want to emphasize here, again, that chief Justice Roberts that was in the that was in the civil context. The question is whether or not a criminal investigation might be a little bit more distracting. Dunne well, im im not sure, your honor. I mean, im not sure whether the stigma of, you know, a 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 im not sure that, again, the abstract concern about, you know, possible mental distraction or even public stigma under this courts prior analysis is sufficient to adopt a new brightline constitutional rule that forbids any kind of process like this, given the the history. Chief Justice Roberts its a little bit of a its a little bit of a that is what the president s personal lawyers advocated. Its not what the solicitor general advocated, not an absolute rule. Dunne yes, i know, your honor. And and, therefore, the answer in that case is whats happened here, which is a casespecific 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 theres no article ii burden whatsoever, after an opportunity to be heard, that should be the answer. And and thats whats happened here. Chief Justice Roberts Justice Thomas, anything further . Justice thomas one brief question, mr. Dunne. Theres been much discussion about burdens on the president. Id 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. Dunne well, i guess, your honor, again, hypothetically, because our our subpoena imposes, we say, no burden whatsoever. Justice thomas i understand that. Dunne but i i i think i would i would again point to this courts language in the clinton analysis where it it was you know, it was observed in passing in the opinion, i think just as dicta, but it was relevant, that, you know, if 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 youd say really shouldnt have to happen. I would suggest there along those lines too that if if there if a president were to be were were to be asked to produce show up for multiple days of consecutive deposition testimony or Something Like that, those those kinds those are practical burdens, or if if the demands were that he show up at a particular time or place that is, you know, where there are conflicts and that kind of thing, again, since were talking here about private conduct and no executive privilege, what we get to are really practical concerns about impositions on on president ial activities. And thats, i think, what were talking about. Chief Justice Roberts thank you. Justice ginsburg, anything further . Justice ginsburg nothing further. Chief Justice Roberts Justice Breyer . Justice breyer no, thank you. Go ahead. Chief Justice Roberts Justice Alito . Justice alito one quick question. I dont know how good this court is about predicting the consequences of some of our decisions, but would you say that the the courts prediction in in clinton versus jones that the decision wouldnt have much of an impact on the presidency has been borne out by history . Dunne i guess, your honor, i i my view of the chronology in clinton v. Jones, ill try to be brief, is that i i think, contrary to some peoples view of history, i think that the the the District Court, following this courts decision, kept a rather close rein on discovery in that case and, dont 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 the case that the president committed perjury, which is what led to the impeachment proceedings and other travails he had. So i dont think it was this courts opinion or the litigation itself that led to those problems. Frankly, it was his decision to lie under oath. So i i i dont i think that this this courts conclusion in both nixon and clinton that they could not you could not, you know, accept the notion theres going to be a parade of horribles, either in a particular case or across the board, still has borne out over history. Chief Justice Roberts Justice Sotomayor . Justice sotomayor im not sure that i understood your statement earlier that the only difference between you and the sg well, there are two differences, one in in the articulation of special needs or heightened standard, but you said its the burden of proof. But youve already conceded to to one of my colleagues that there is an automatic burden on an article on the article ii clause by subpoenaing a sitting president , period. Dunne no, ive not ive not, your honor. Im sorry, but i have not i have not conceded that. Justice sotomayor all right. What, then, are you conceding when you say theres a burden . Dunne im im conceding Justice Sotomayor and and what kind of burden are you talking about . And, number three, articulate more precisely what problems you have with the heightened standard that nixon set in its grand jury subpoena. Dunne yeah, i guess, in my response, i think, to Justice Gorsuch, my concern my what i acknowledged was that, yes, a subpoena like this implicates article ii issues and potential burdens, and its those which have to be weighed in a casespecific analysis. I wasnt conceding that the mere fact of a subpoena imposes an article ii burden. I think thats thats the distinction i would i would i would draw. And, again, getting back to the language question, i again, its the dojs language that calls for a stringent showing that a 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 could meet that standard because, in a grand jury, one is not thinking about charging decisions or central issues at trial. And thats why i think the simple language that the doj is is applying in its new heightened showing standard is just not workable. Chief Justice Roberts Justice Kagan . Justice kagan mr. Dunne, on on the question of a possible distinction between state prosecutors and federal prosecutors, the president s lawyers have urged that theres a legal difference arising from the supremacy clause. And i dont think weve talked about that argument yet. What what is your response to that . Dunne i think the response, your honor, is i alluded to it before. But i think all it means is that there is a a balance to be struck between, in this case, the state prosecutors, the supremacy clause concerns, against the rights of states under their Police Powers and the concepts of federalism and the the requirements of the tenth amendment to allow the states to exercise their their rights, especially in the criminal context, which, you know, are are so important. So i think that thats the parallel to the the balancing in the in this federal prosecutor context, but i think its even more important given the federalism concerns and the fact that, you know, state prosecutors, of course, not only do they have the reserve police power of the states, but in in context of criminal investigations, theyre a large body of criminal conduct is only prosecutable by the states. So thats the thing that has to be balanced here. Chief Justice Roberts Justice Gorsuch . Justice gorsuch nothing further. Thank you, chief. Chief Justice Roberts Justice Kavanaugh . Justice kavanaugh 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 tick off the concerns you would have about that so that we have those clear . Dunne yes. Yes, Justice Kavanaugh. Again, its point number one would be the putting aside statute of limitations concern, which i dont think one can discount here because i dont think its been addressed, you know, ever, obviously, by this court in in this context, and thats what were thats 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, you know, 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 in saying that a grand jury proceeding should be allowed to proceed. But, secondly, here and its not unusual since there are other thirdparties at issue in the investigation, requiring us to delay because a president is still in office as to those thirdparties in in gathering important evidence could yield them being above the law if the statute of limitations runs as to them. Justice kavanaugh thank you. Chief Justice Roberts mr. Mr. Dunne, would you like a minute or two to wrap up . Dunne yes, your honor, thank you. Your honors, the issue presented here today is extremely narrow , but extremely important. We have a state investigation thats wellfounded, implicates no official conduct or executive privilege, involves a variety of thirdparties, faces serious time constraints, and has been found to oppose 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 president s from abusive claims or demands. Theres no need here to upend precedent or to write a new rule that undermines federalism, especially when such a rule would create a risk that american president s, as well as thirdparties, could unwittingly end up above the law. Thank you. Chief Justice Roberts thank you, counsel. Mr. Sekulow, you have two minutes for rebuttal. Sekulow thank you, mr. Chief justice. Let me start with this, and theres some agreement. The new york District Attorney, New York County District Attorney, acknowledges that their subpoena implicates article ii issues and burdens. They also agree that there is harms that could arise 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 thats left open. This courts decision in cheney answered that very clearly, that said that the exacting standard is carried by the party requesting the information. So it would be carried by the respondent, in this particular case. There has been no showing and no findings of heightened need standards being met here. That and i think its again also important to remember and i think this came up in the context of earlier questioning theres a different stigma that attaches to criminal process than civil litigation. And i dont 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 whats really happening here could not be clearer. The presidency is being harassed and undermined with improper process that was issued, in our view, for illegitimate reasons. The copying of the subpoena speaks to that. The framers saw this coming, and they structured the constitution to protect the president from this encroachment. Thank you, mr. Chief justice. Chief Justice Roberts thank you, counsel. The case is submitted. [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] americas future is in our hands and ladies and gentlemen, the best is yet to come. [applause] President Trump is hosting a valley in new hampshire. Watch our Live Campaign 2020 coverage saturday at 8 00 eastern on cspan, on at cspan. Org, or listen on the go with the free cspan radio app. Tonight we hear from defense secretary mark esper and general mark milley at a House Armed Services hearing from earlier today. That is followed by another Supreme Court decision involving President Trumps finances. Then dr. Anthony faucher talks about the Coronavirus Response and the recent spike in se