Transcripts For CSPAN Trump V. Vance Oral Argument 20240712

The court heard arguments from the president s attorney in the manhattan District Attorneys office. The central issue surrounds the subpoena for the president s finances as part of an investigation into alleged misconduct i the president s company, the Trump Organization. This is the second time this case has appeared before the court. The first was in october of 2019. It ended up before the u. S. Supreme court in may of 2020 and the justices ultimately ruled in favor of the das office and subpoena. But also remanded the case back to the lower courts for additional consideration. This is one hour and 20 minutes. 20 minutes. We will hear from trump the vance. The way we will proceed is that each side will have on interrupted arguments. Then there will be questioning in order of that with judge lavalle first then me and then judge. You will begin and you have reserved three minutes for a rebuttal. Thank you your honor and good morning. Good morning. And may it please the court, on remand the president filed and raised two claims, first that the subpoena and overbroad fishing expedition. And second that it was issued in bad faith in order to harass the president. The District Attorney concedes the Supreme Court is author of the president bring these claims in federal court on remand. The only issue then, on appeal, is whether the allegations of bad faith or plausible. The District Courts determination that they are not could be reversed for several reasons. First, the court stacked the deck against the president by serving these president s are disguised attempt to re litigate category community. The District Attorney also concedes they claim they are no not. The clot plausibility standard to be a requirement by growing interest against the president by crediting one plausible allegation over another. In allowed by the District Attorney to deploy extrinsic evidence. Third and last, the court denied the president a fair chance for the legality of the subpoena via a string while streamlined process. That is how subpoena challenges are typically, the president s challenge should be no exceptio exception. At the District Attorney answered as he should have, that prices mightve already been completed. For all these reasons the judgment below should be reversed in the case should be remanded for further proceedings. Thank you. Two judge leval. I am a little puzzled. Because conventionally, and order to squash a subpoena or escape the obligation to one must make a showing. One must make a showing that would support the proposition that the subpoena was issued in bad faith or whatever the ground is. Here, it seems to me as a result of the District Attorneys he will not enforce the subpoena. Here we are harboring a question that seems to be irrelevant. The question whether it is not issue we should be addressing. We should be addressing whether the plaintiff, and an effort to avoid compliance has shown that there is a defect of bad faith. I like to combine that with the question of why is it, on the issue of plausibility of meeting standards, what i see, you dont meet that standard if there is an obvious alternative explanation, which is not a legality. So if you want to address that please . Thank you your honor, let me address to the first one first. I would not agree that plausibility is irrelevant but rather straightforward. I think what is different here, i think will help explain how we are where we are, is we agree that ultimately there is an evidentiary burden that has to be met to show bad faith. This is a 1983 action in federal court under the federal procedure. The Supreme Court and this court have both held the District Attorney concedes that is the appropriate posture for this case to be in right now. Therefore the ordinary rules have to apply. I mentioned in my opening, i think the District Attorney should have answered, this is an actual dispute. Had he done so we would be in a proceeding only a summary judgment. I agree. You have not made such a motion. You have not set forth evidence that could justify staying with the subpoena or questioning it. So as far as i can see, so far as i can see, the saying of the subpoena is solely by virtue of the District Attorneys decision. There is never been a court ruling that the subpoena has stayed. The only thing that stayed with the subpoena is the District Attorneys not undertaking the question. Of his own bullish and if it is true your honor that we have not had to litigate interim relief because of the agreements of the attorney. But whether the subpoenas ultimately squashed with resolve as read judgment not reading plausibility that changes the rules of rule eight and would create a surface. There are no heightened standards under rule eight. In your honors question about obvious alternatives, think with the District Attorney in the District Court lead out from that question is those alternatives have to come for the four quarters of the complaints. Not based on speculation and evidence that District Attorney would like to reduce at the pleading stage. Nothing at this point renders the president s allegation as to the scope or propriety of the subpoena implausible. It is plausible. I dont think what she said is legally accurate. Because they are talking about what is contained in the complaints. If i am reading the complaints, one sees that there is an obvious alternative not consistent with the lawfulness being claimed in the complaints. Then the complaint fails to make out the illegality that is consistent with the plausibility standard. And it seems to me that just reading your complaints, of course youve alleged a lot of things. But when a grand jury subpoenas tax returns to say well, we think that granted jury is not interested in tax returns at all they are interested in Something Else that they have subpoenaed in the past. And we think are we argue that the subpoena is in bad faith because it was copied, because it was largely copied in substance from another governmental subpoena eking the same material. There are such obvious alternatives. There simply no reason to go speculating into the accuracy of these highly contrived allegations. I dont think the speculations are contrived. We have led to investigation has a certain scope. That allegation has to be accepted as true. And once it is, not even the District Attorney asserts the claims are implausible. If the investigation is limited to the 2015 payment that the District Attorney concedes are part of the investigation, then there is no dispute. The subpoenas plausibly overbooked brought implausibly in bad faith. You agree, do you not that the president is being judged in the standard exactly like an ordinary citizen . We dont agree with that. I dont think it matters. With respect the Supreme Court said with respect to bad faith or, the president is not wielding any special privilege as president of the United States. Is the posture of an ordinary citizen. Isnt that the gist of the Supreme Courts holding . Not in my view, your honor. The court also said with cheney that in no case was the president be considered like ordinary litigants. I dont think it matters for appeal. If the court were to adopt that view hes treated like an ordinary citizen, he still lives here. Its just plausibility. I just think it is hard, impossible for this to argue that it is implausible that he subpoena copied from congress, that is alleged to be about one issue from one year, did not overbroad and not plausibly in bad faith and should have been resolved through judgment on the merits. I would yield to judge katzman. Counselor how would you respond to the argument that the allegation that the scope of the grand jurys investigation is limited to only statements made by Michael Cohen in 2016 is undermined by the very news article from which this allegation is drawn. The New York Times article, which i understand, and correct me if i am misunderstanding, is the main basis for that allegation at the scope of the grand jury investigation is limited only to the 2016 payments based elsewhere, and i quote that it was unclear if the broad scope of the indicated the District Attorney had expanded his investigation beyond actions taken during the 2000 campaign. So it doesnt that, on its own terms, the New York Times article on its own terms, significantly undermine the plausibility of your assertion . No your honor. I actually think it confirms it as we explain in detail. Let me begin by saying its not the basis for the allegation part i would point the course to paragraph 12 through 15 of the Second Amended complaint. The basis are one, that was impetus for the investigation. Two, was the sole subject of the subpoena to the Trump Organization. And third, the subpoena was only issued after there was dispute over whether tax returns were included in that subpoena. So we think there is obvious relationship between the two. Now for the article, the article said exactly what your honor described it as saying part as we explain her papers, we think it goes beyond the record to quote the parts that were not included in the complaints. Except that is appropriate. It says exactly what our allegation says. This was about the payments. And then it is unclear whether it has expanded beyond that. Meaning that it may be possible to expand it. But is also plausible that it has not. That is what unclear means. This court has held time and time again and many others we cite that complaints cannot be dismissed because they are competing plausible explanation. Thats most of what we have here. In paragraph 11 of the Second Amendment complaint, opens investigation the summer of 2018. In paragraph 17 to 18, the allegation is the District Attorney issued a grand jury subpoena is a plausible only to 2016 Michael Cohen payments for more than here . Subpoenas the Trump Organization was august 1, 2019. That was limited solely to the cohen payments. Theres no disagreement about that and then 30 days later, the subpoena goes out. Im sure the District Attorney can. That is not speak for plausibility of it. One of the theories of bad faith is the District Attorney issued the subpoena, as you put it retaliation for the president s refusal for his tax returns. They the president s interpretation of the first subpoena. And then issued a new one. Why is this why is that pop plausibly construed as retaliation . Its plausible retaliation, your honor not because the District Attorney after that dispute sought tax returns. I would say first, is concerned that he simply did not reissue the subpoena to the party directly. Which she could have and then it could have been over that. Instead come the District Attorney decided he did not want to confront and responded directly and tried to go around him. Of course that led to an entire issue of litigation your honor is quite familiar with. What makes it plausibly retaliatory though, is the scope of the subpoena. It wasnt just the disputed item, its the last tack on issue of an otherwise entirely federally based subpoena from the House Speaker oversight committee. In the idea that because of the dispute over tax returns the District Attorney thought it was appropriate to simply photocopy a congressional subpoena about hotels in washington d. C. And business in indonesia ireland is totally unacceptable. It is at least plausible that was done. Now grand jury as you know, are given Broad Authority to do their work. Are you asking us to change the way grand juries have done their work is because redoing with someone is president of the United States . Are asking for ordinary rules once this case gets passed when i think is frankly and overdone plausibility, we will have a proceeding and subpoena will be challenged. In that challenge is measured against a broad standard, we dont disagree. But the president does at least have the right of any other ordinary citizen to have that process play out in an appropriate way. And not to be told that the District Court hes re litigating immunities which shes not. Its an independent reversal. In the be told as claims are implausible when they are quite plausible. One last question. They found subpoenas to be overbroad when the time period covers ten, 15 years or so. The subpoena here covers nine years. Why should be ruled differently . Your honor because that has to be measured against what the scope of the investigation. And again, the president has alleged plausibly the investigation is limited to certain payments made in a certain year. It is quite plausible that it is overbroad based on that limited investigation to seek reference for this length of time. Is not just measured although it does suggest overbreadth here. On that as pointed out in the prior hearing on this day, the number of you look up the definition of a fishing expedition, this is it. This District Attorney did not focus on anything. Congress wants everything, let me have too please. That is about how this works. Judge . Judge katzmann thank you put in good morning. I am interested in further exploring what you just ended with this concept. And it appears, but you can correct me if im wrong, you may have a sub power based on how this decision to limit the scope of the subpoena is a appeals under circumstances. Do you agree or disagree with that . Your honor i am not familiar with the horwitz decision. Forget the petition, you probably agree that if we determine there is some problem. And we agree at some level there is a problem. The cross some limitation. Your honor that might be correct, i cant submit to that. If i could raise i think, the reason i have not fully explore that question yet is i think it is a procedural hurdle. For why these doric court cannot reach that in this appeal. Its impossible to debrief it intake that at this juncture. But time and again when a case is dismissed at the pleading stage, it cannot to a merit ruling before its been given the chance to submit a request for discovery and have that request ruled on under rule 56. We have submitted that motion, that letter motion for the District Court because we saw this concern arising. That motion was denied as moot. This court was not position procedurally under the president to come at this stage. Potentially on the merits, yes. Set aside those procedural possible procedural hurdles i understand youre saying. But again try to understand the real focus of your argument, so if you were to limit the procedural substances ability to do this, if we were to limit the subpoenas the tax returns, for domestic actions, between 2011 and 2015, would that be something you could live with . I dont think so your honor. Why not . You just told us that a big part of the problem of the issue is that it asks for statements all around the world. I am offering a possible solution of tax returns for limited period of time. Narrower sober talk about four or five years. And all domestically based. I understand your honor. I think again that would be no question. It is far left overbroad, i dont disagree. And i understand where your honor is coming from. And of course your honor, sitting beside. [inaudible] yep yep. And so the question becomes is you domestically course that encompasses numerous enterprises that i think are far beyond anything the District Attorney has been investigating pretty just give you one example and i use this because its the most obvious. That subpoena thats copied is included returns for the hotel in washington which is potential he or reported to be investigated for federal lease issues in washington d. C. I still think it is overbroad to include that. Is there a request for documents in this case . Lets assume were just talking is there requested documents that would not be overbroad in your view . I have to know, think the answers probably probably no your honor, heres why. That is a problem, that is a problem. That is a problem. You see the problem . I see what youre concerned. So we go back to this a basis for the investigation. This is alleged, the District Attorney served as a broad on the Trump Organization very broad. And now were looking abroad subpoena to complicate that. The trump subpoena did not litigate that. The Trump Organization, it was at that point that the District Attorney said wed also like tax returns. There is a twopronged really dispute there. One what was encompassed. But to, whether they were even relevant to the dispute. Now if the court would be determined they are relevant, that would be one thing. But it has to be reasonably related. I think that is my concern. I think that is why i am hesitating. I understand your honors offering a much more narrow hypothetical case than the one presented here. But i do think if you go back and look the story from that perspective, when you say reasonably related, i thought that was the standard. The going back to my own days was no conceivable relevance to the matter under investigation. I think its no conceivable relevance that is yes. As a matter of law it is invalid. I do think though times that can fall short of that and it is crossing the light into overbreadth. But here, i think the position was and remains that there is no conceivable relevance of the tax return so that particular issue. But that ought to have been sorted out between the Trump Organization and the District Attorneys office when these concerns were raised. Instead the District Attorney turns around without continuing throughout that process and fires off congressional subpoen subpoena. And thats we are we are. I just want to try to briefly back again to some of the questions from my colleagues have engaged in about plausibility standard. And i saw in your brief, that you decided to turns an alliance and i thank you in which i said plausibility was exceedingly lo low. But i think that subsequent decision since that time, particularly this last term and this term, may have overtaken us so that the plausibility standard is a little higher than what i might have announced. If that is true, that the plausibility standard is a little bit higher than for example was suggested the existence of an equally plausible explanation is enough to render the allegations impossible for allegations that we reject. Then what is the argument . Just assumed that his troop. Because i think that your argument rests on an exceedingly low threshold of plausibility. Of which i agree. But i dont think it exists anymore. Sorry, i sent one part of your question. I dont understand any number for party to be asserting their two equally plausible alternatives that the complaint failed. Not to sunder your concurrent but under literally any decision interpreting its issue. I think the argument was that the alternate has to be so obviously the only plausible explanation that it defeats in other allegation. If your honor send their two equally plausible alternatives we lose . I think theres no case that supports it not from this term the last or any other. If you argue that the question is do you lose. [inaudible] you disagree with that right . Yes, i do. And sit decision in ashcroft that is lost. And every circuit thats held there are competing plausible alternatives. That in many, many cases. Did the person run the stop sign or not . The complaint pleads the person run the stop sign prayed the defense thanks that plausible reason to suggest you didnt. That is why we have factfinders. But the question is if it is so obviously one not the other, that is sort of a narrow exception. I dont think the District Attorney can get home on that. I dont think it is close. Why should we require an allegation if youd like to see what it is, the grand jury investigation is was not only limited may be at beginning to the 2016, currently can be delimited to the standards . the District Attorney wants to point to basically, was internet search for every article he could find about wrongdoing but the president. The biggest house when possibilf frankly, reality. Specific allegations that the investigation has not only been limited but have not seen that. I think as we all know, the grand jury investigations dropped. As more information comes in. I think that is a natural conclusion. In every grand jury investigation specifically of this importance will start to grow in terms of the nature of the possible charges that the grand jury is investigating. In terms of the documents and witnesses and someone that may be of interest to the grand jury. That is the natural production. In the ordinary course of my experience and given that, why should we require that this is the one grand jury investigation that you need and that it stuck. It did not expand beyond the 2015. I think that wa would creatie problem. No heightened so i think that will heightened the standard that is into the law. In the irs. Im sorry. It certainly took to know the grand jurys work. But i would be deeply concerned if there is a presumption in the law that every investigation always expands and always looks for moe in this endeavor can find itself for which it was convened to investigate right in here, i think it would encourage to not make this kind of change in the law what was a rather artificial responsibility. Based between the parties and having the District Attorney answered, behind what is we wouldnt have to guess what is behind door number 240 wouldnt have to think about if we made some legal changes simply because the attorney decided to file a motion to dismiss. And one final point. Then im done. I take it that you did not have the presumption of the liberties regarding the grand jury investigations. Its only in this stage where the position is fully supported into the law. Thats not a legal pleadings requirement. Dr. Fauci. Go ahead. Smug want to seem as though its an irrelevance at all. When you look at that jeep grand jury subpoenas on the merit, theres no question that presumption ability has been used in that. As your honor pointed out in the terms of testing but it doesnt create override at all. That is really all thats important right now. Thank you very much. I have another question. This is about i dont understand the proposition that the request for documents this been under a number of years in operations and in any places is in any way suggested of the local press. When one is investigating tax returns, at least in most circumstances, the u. S. Taxpayer is responsible for worldwide income. It could turn out especially any corporations involved, could turn out to be otherwise. That some foreign operations are not covered by a u. S. Parent are owner obligations. But when one is investigating the propriety of the tax returns of an individual organization that operates worldwide, all of the worldwide operations are pertinent to the accuracy of the tax returns. I dont see any basis for the assumption that his opinion seeking tax return of the taxpayer is overbroad because it seeks operations and results in foreign countries. In the same is true with respect to years because there is an important linkage, a strong linkage especially in real estate with appreciation for such an important matter. Theres a very big linkage between what is reported for certain years and what is reported for subsequent years. Someone needs to go back to prior years to look for consistencies with respect to appreciation and things of that sort. The problem of it for my point of view is they assume controverted an understanding of the nature of this investigation. And think of the proposition reduces tunes with a reports held in at a time when the District Attorney are gives on the. Which are as follows. Investigation is quite broad because the subpoena was quite broad. You cant measure both in time or in Geographic Scope or in categories documented to understand it but the nature and the investigation is. Though they badly to resistant, the president has alleged and possiblys the investigation is limited to certain issues for more than a year. And not without tax returns. About payment. Theres a dispute over the relevancy of that. What is your answer to my question if we dont accept your proposition that the ren jory was investigating only these transactions in 2016. But if we take it that the grand jury was investigating tax issues. We dont extend your argument is possible that the grand jury was only investigating the payments to the women to cover up the sexual affairs. Your honor, its overbroad. There are still entire documents have no relevance that the District Attorney has any and information. He is limited to your account. Just the most obvious. In the hotel in washington, and is returns and relationships with the federal had nothing to do with anything the District Attorney. Suet is in new york taxpayer. It was then. The law is clear that they dont have worldwide jurisdiction over anything in the new york take spare because of any world in the world. Its broad. What about the accuracy and the validity of validity of the tax investigation in new york. It has to say that it District Attorney and ren jory investigating broad and tax returns can only look at Business Operations that were conducted on manhattan. And cannot not and do you need you or any of the places covered by the tax returns. This seems to be farfetched. I respectfully disagree your honor. There cannot be fishing expeditions. Dont know how to distinguish to what youre referring to. Is not a fishing expedition if the tax returns cover the operations nation wide, worldwide. Outside of manhattan. And investigating the accuracy of those tax returns to look for the documents that the tax returns cover. The District Attorney is not authorized more is there any allegation that hes engaged in on those terms in worldwide audit of the president s tax returns. Whether its limited about some of their specific allegation. The return would have to be relevant to that. Im no authority be subject to a worldwide audit. On that basis alone, the grand jury has every piece of paper and every tax issue were anywhere in the world. If grand jury in the New York County District Attorney is investigating fraud. With respect to the operations and of an indonesian subsidiary or indonesian operations of the new york taxpayer, those operations were covered in the tax returns and trial in new york. How does get investigated for ecu not allowed to subpoena the documents that are the basis of the tax returns. Filed in new york. Im sorry. No, go ahead. I think your honors question highlights the importance in the final iteration, the new york strict attorney certain actions and therefore he would want or need indonesian returns. No, its investigating the accuracy. It is investigating fraud with respect to a tax return filed in new york by new york taxpayer. Need to investigate on the documents upon which the tax return will be based. Theres no reason why that would include Business Operations outside the county of new york. Even as far as indonesia. Writes. I think i have given my best answer which is were not competing with what is occurring here. But accepting the hypothetical in its own terms. There is still need to be a specific investigation of certain fraud. And if the subpoena goes beyond that, even in the same category of documents, go so far beyond that and engages in a fishing expedition. I do think that is crossing the line. I think that is probably my best answer. Yes, go ahead. [silence]. [silence]. Im sorry. I am not hearing anything. Are you there. Hello. Yes, can you hear me. Yes, we can hear you now. We will now here thank you your honor. Represent the opposite of the District Attorney of the New York County. There are two garden variety common law claims in a 16 page complaint. Wheres that complaint, in that regard, i like to bring us back to the simplicity of the District Courts analysis which really underscore focused on the four corners of the complaint. The lack of any facts to support the course are now being asked to draw. It has other inflammatory assertions but at some of the questions here a variety indicated under the line of cases, the court must look past speculation and conclude the statement. In here you search for inoperative facts in the complaint amusing there only three i proposed through them quickly to show why this court needed go any further than that. First, this is a published reports indicated initially that her investigation was limited to the 2016 hush money case. The complaint does not identify a single article this is that. And one article says and point out that the full scope of the investigation was unclear. Second, the complaint says the grand jury first issued a narrow subpoena to the truck organization. Prior to which was broader in scope. From this they argued the second subpoena must be broad. This is no logical reason to assume the early subpoena defines the scope of the investigation as opposed to the later subpoena. Third, says theyve opted language from a later congressional subpoena. From this they argued that the documents requested have no conceivable relevance to the grand jurys inc. That too is known, supports that it didnt itself of distinct good faith purpose of its own. The complaint rests on a variety of answers about the investigation, politics about retaliation and so on. But none of that is supported by with the Supreme Court referred to as factual content are thats why the court should have dismissal and i will take your questions. So my first question is to the District Attorney ever issue a statement to the effect that the grand jury investigation of the storm is limited to the hush payments. The say anything but conceivably could be interpreted as saying that was what the grand jury was investigating. No your honor. One, of course during parts of the investigation including in the wake of the subpoena, we made no statement publicly about the scope of the investigation give the concerns about the secrecy. But second, during this litigation, which i think is relevant because his before the issuance of the Second Amendment complaint. Yes, we had less generically, if this were grand jury secrecy, sitting in a race, recent we do assert that the Office Investigation goes beyond the scope of the trumps investigation. The siding our october 29 Second Circuit brief. An x on page 11 of her memorandum in opposition, the most recent, we have represented the that they been put on notice throughout the litigation that the grand jury investigation was not limited to the 2016. The officer stated that the grand jury investigation potential violations of state law including issues beyond those involved in that matter. So to answer your question, we have not affirmatively describe the extended details of the investigation but we have on affirmatively asserted in the record consistently is not limited to the 2016. So no time, does the District Attorney state the grand jury investigation and a start was limited to those payments. Raven was addressed to those payments. Correct your honor. I note that the Second Amendment complaint believe there is a reference to suggest in our office admitted to that the subpoena was not designed to meet the needs of the grand jury. The complaint in paragraph five. There is no citation because its not true. I cant help but say lookalike work looking through the Looking Glass here. So the interim straw that was the subject. The soul subject of the grand juries concerns is solely that the subject matter of the first subpoena obviously is concerned itself with those papers. Without you say, the sole basis for the inference as to what the grand jury was intending or the d. A. Is intending to investigate charter. Obviously my point is not possible on the space. Of course as you already indicated, the court may in fact must use its own judicial experience of common sense. On the basis of alone, there is no basis whatsoever to support that inference and it should by the court. So the judge was suggesting earlier the grand jury investigation like any entry investigations, might well be understanding from its initial concerns to different concerned. Seems to me theres no reason to even engage in the question of whether it expands because a subpoena was issued in august seeking records that relate to obviously unrelated to the hush money payments. In a month later, the issue of the subpoena which addresses a very different subject matter of tax returns and the documents that testify to the fact of the tax returns for large period of years. I dont see any reason in the enter inference that investigation necessarily expanded. Its just that one starts out doing one thing. The one book said another thing. And theres no reason to assume that both are part of the investigation is initially planned. No. I couldnt put it better your honor. Putting it differently the assertion isnt the first premium must necessarily define limit the scope of any investigation. That violates again judicial experience and common sense in a way that this doesnt just render that inference impossible. Rather the inference of preposterous. I was asking your adversary some questions a few minutes ago. About the scope of the subpoena. The tax focus of the subpoena and it was arguing that its a fishing expedition. In subpoena addressed to New York County tax base are asked for documents that the way this business is conducted outside of the New York County is in washington dc on foreign countries. Reich is in queens. I asked why that should be the case when presumably the new york tax returns and have Business Operations outside of New York County. Why or what is the basis of the inference that abroad if it seeks the documentation that the course of business incomes or deductions that derived from operations outside of New York County. Would you address that. Yes driver and again comes back to the course ability to find its own experience and common sense. As i think that Everybody Knows, something unusual about her Office Seeking information about it state and foreign transactions. That has elements, both laws and otherwise will involve filing a tax return or providing Financial Statements are potential lenders etc. Theres falsities that extend this in misstated income for example from some foreign transaction or whatever. If new york city is the world wide commerce center. Over which we have jurisdiction because it has either fax or activity within that and if and trent manhattan. Agreement the companies at the center of that activity. That happens all the time. I correct in my understanding that there is no stay on the enforcement of these subpoenas. The nonenforcement of subpoenas is entirely voluntary. The part of the District Attorney. No your honor, let me correct that spring number three is where we had consented for stay for various periods for reasons of getting rapid briefing schedules and that everything in addressing the constitutional actions involved. The fact is in this case, the filing of the complaint. We did not agree to further stay. Because we definitely think is not warranted given the fact that that achieving delay. And for that reason we did not agree to a stay prior to this motion being made. And that led to a debriefing an argument of the state question before this court on september 1st. On september first, this court issued a stay on the dependency of this question and that is now in place therefore having been imposed by the Court Extends to the. In which this court issued a decision on the argument we are having today. I dont think i agree with that. The stay was a stay of the dismissal of the complaint. It was not a stay in the enforcement of the subpoena. As i read it. I dont have it in front of me right now but my understanding was that the stay was the state of the dismissal of the complaint. But the existence of the complaint does not stop at the District Attorney enforcing the subpoenas. However wrong on that. I was not involved. I think youre wrong. Is my understanding what i argue is that issue before this court on september 1, that i was arguing in favor of denial of the state of the subpoena. In that decision which was issued that afternoon i believe which is why we have not added it. Do you have the order in front of you. I looked at it in the past and i get the impression released is my recollection of the stay was a stay of the District Courts order of dismissal of the complaint. But that is a very different thing from sing the enforcement of the subpoenas. I do understand and correct it. And i know that you have on certain occasions agreed the enforcement of the subpoena at certain times. For example i think you agree to stay on september 1st i guess that was. Until two days after this court rules on the state motion which passed a few days later. But i dont think the stay order was issued by the motion panel said that was enforcement of this pina. It was of the complaint. The existence of the complaint does not stop the enforcement of the subpoenas. So as i understand it, unless you point to me to something that makes an incorrect, as i understand it, the only stay that is in effect right now on the enforcement of the subpoenas is to voluntarily not doing so of the District Attorney. Your honor, im afraid i dont have the language in front of me. This unit as that if internet was very brief. But if it helps, i can add one of the questions addressed in the litigation was whether a stay was even an appropriate vehicle to prevent the enforcement of the subpoena as opposed to a preliminary injunction. That was one of the arguments foremost in the discussions with the court. I think an illustrative were talking about staying the enforcement of the subpoena. I believe thats what the court held. But we can check of that of course. I think that should be looked into. Because i think it should be known what has been ordered by this court. Whether this court has ordered the nonenforcement of the subpoenas. I did not see it but it may be wrong. Agreed to honor. Just to be clear, we have not voluntarily for born at this point. We dont think its appropriate step given the status of the delays. Thank you. In your opposition brief. You make references to numerous news articles. We talk about the scope of the grand jury investigation. Other than a New York Times article which the complaint explicitly quotes. Why should any of these articles matter at all at this pleading stage when they are not cited of the appointed or other wise inc. I reference. Just to explain, again under the right of cases. To understand the context and make sure they entrances being asked to draw from the complaint possible. Where is here, according to selectively cited parts of the press reports amid others, obviously its important for a court to know the full report what it says. Which is what we cited it in the New York Times article in particular. In regards to the other article. Giving the other mistakes in the complaint like hush money payments etc. We believe it was appropriate for the court to be aware of those articles and if necessary take additional notice of them. Those assertions in the complaint are reasonable on this case. I think that the court is well positioned and authorized to take additional notice that the articles, but i dont think it is necessary for purposes of affirming the District Courts decision. In other words, the articles certainly confirm and collaborate what we are saying about the impossibility of the entrances your suggested here. But, they dont need to be considered further in reaching this decision. Frankly, that decision with the District Court did as well. Alaska another question. Do we need, some referential scope of the grand jury investigation. In order to move forward. I dont think so your honor. Its difficult to challenge the grand jury subpoena. It reflects under our Enterprises Case irregularity, the grand jury pursued every lead. And in secret. So supposed to be a public thing. Putting it differently, having arrived to go to court to meet told what an investigation is all about. Its some sort of frame of reference here. Because is not appropriate in the first place for the Challenging Party here to be given a frame of reference. Its just not part of the process. That it could never be actually reviewed by the court. For example, i say this subpoena here has been issued by local prosecutor in cleveland state, with no relation to the transaction, theyre a court might well decided that applying common sense that a question has been raised to overcome the presumptions and to require that information with the prosecutor. At that point it would be appropriate vehicle. Regardless of whether we think it is likely. What is the basis to say that it is implausible that nonelected prosecutor might use a grand jury subpoena process. For improper political purposes. If thats the extent of the assertion, nothing but speculation. There were facts alleged in the support of the notion that there was a political motivation here for example, public statements by a prosecutor prosecutor could say, my goal is to put this company out of business. Our target to electoral politics or possibility. Maybe that too, was over on the presumption of validity and raise a question in the course mind for further inquiry. I would not be a fullblown discovery. Maps and those kinds of facts, to simply say that sometimes prosecutors have political motivations and therefore that is a fact this course inquiring here and discover here, thats not how it works your honor. Another line of questioning. If we were too fat at the president s allegation that the District Attorney decided that no other congressional subpoenas. In the sake of efficiency rather than the means of the investigation. Then how can we not find that the president has stated and over claims. I understand your question correctly, the fact that we made statements that one of the reasons to adopt the language from the house subpoena is to make it more efficient, and signature of thinking. That is not inconsistent with the notion that sick good faith basis to do it and visit, and using common sense, thats a kind of thing that does happen all of the time. And in the interest that somehow chris, it has bad faith, is not possible. I think the explanation we have given, which again, the court can take this using the common sense and experiences sufficient to rendering the proposed information. That is what we are trying to explain. The last question. There is a language with higher respect to the president with foot, the Supreme Court in mission what does that mean. It. I think it is the same point that goes along with the phrase particularly in frankly the ordinary citizen language which the court was inquiring about earlier. I think that all it means is there is no Legal Standard that theres a situation like this where president is treated as an ordinary litigant in terms of the purposes and Legal Standard purposes. But in all of those instances, talking about the high respect for the president of the fact that is not horton. All of those boiled down to, nonetheless you have to realize this person has an important and unique job. And you need to make sure that youre paying special attention not to give him or interfere with his timetable or schedule and make sure that it doesnt instruct his day job. But otherwise, legally he is treated as an ordinary citizen. Thank you. Just a followup on that. It appears to me, this is a subject some discussion to the motion argument. Early september. This seems to be another way in which the courts listens case the fact that we are doing with the president of the United States. Hes been permitted to acquire motion to dismiss. Is that correct. Sue mcginnis your honor. I think the word District Court is atypical. Ordinarily here he has been permitted to bring civil litigation and challenge a grand jury speed at which least atypical. If not improper. And arguably that is a bit of a higher standard or a different standard that no other citizen gets to pursue. Nonetheless, it is what it is. We are not suggesting that this proceeding need to be challenged or converted somehow into emotion. Because we think with the presumption of regularity, basically the same standard of lines here. And that even under the standards that applies to the litigation like this, the same result wooden soup. Which is that the grand jury subpoena would not be cautioned. Hopefully common sense and experience. That is important in any context in assessing these allegations and the possibilities of the allegations. And of course is going to the allegations themselves. How do we weigh those two things. That is when youre asked to use our judicial experience in some cases actually employ the judicial notice device. How does that square with the allegations and the plausibility standards are being announced in part. Your honor, i think with thae agree that each of them are possible. I think the courts have upheld at least as i understand it, its really the role of the factfinder. But what we are talking about is where a competing obvious difference, based on the sixrecord. We are competing, that is more reasonable so much so that it renders implausible. If this were the quartets to ignore the impossible and that is the situation here. Dont know if that answers the first question. Summa and i have no further questions. Thank you. Thank you unique the questions seem with no joke. We will know here from an thank you. We will now hear from mr. Consovoy. Thank you your honor. Unclear if the issue with the state. I think it was an oversight. Im sure it was non an intentional oversight for unit but in the District Court, this is it document 52 pages nine and ten he agreed to stay in for the subpoena to the District Courts judgment. Until seven days after that judgments final discord today. The defendant that judgment which is why there is a stay on subpoena right now. Thats exactly what happened in the congressional cases from the Supreme Court the issue stays there. The questions before the court. You say he agreed to what. The District Attorney would forbear is been including seven calendar days after the decision on and by this court. That has now been suspended. So that is why we have a stay. Micah briefly turn before this court. [inaudible]. I dont understand. Is there an effect right now. An agreement by the d. A. To stay with the personal subpoenas for a judicial order for the enforcement of the subpoenas. This is what happened with congress as well. It is pending and the subpoena was an enforcement. What is this day issued by the courts say. Reports just like any wood. So how does the judgment of the enforcement of the subpoena. Is a District Attorney says for that. [inaudible]. With permission we have respond briefly to the matter before the court. [inaudible]. If i do, i would like to add that i would like to ask both parties to submit properly. Within three days before the 40s. Addressing exactly this issue and whether there is a stay in effect in the by the consent of the District Attorney about the existence of any court order. Thso Everybody Knows what we are talking about. Is it in existence are simply a voluntary or an assumption on the part of the District Attorney. And thank you. On the merit i would note that it would not defend the District Court confusion of immunity and these new claims. That in itself is an error worried District Court said these have been claims that have already been cited and it was preordained. That error affects the entire analysis and should be corrected. In second i think the discussion of my friends and highlights we have to rewrite all of this court before and after. He uses words like it could be, it could be broader. It is unclear whether it is broader. Everybody knows the investigation expands. Elsewhere. In the filings that are not the complaint. There are other reports you can look out. There actually not inconsistent with, these are not the words to bring for obligation. They confirm plausible. They need to credit his explanations, most of which comes from parts of the complaint. The experience and common sense do not make the president s claims impossible. Quite plausible that the only subject is been revealed in this investigation remains focus. It can at summary judgment, the District Attorney as of right opportunity to go back to this. And finally, i do have to point out the idea the subpoena like this, copies from the House Oversight committee, word for word and issued a local prosecutor happens all the time. This is remarkable. You actually allege an improper litigation. We do allege it. We do not focus on. We allege motivation release efficiency reasons. Other than efficiencies. Some other improper motivation. That illegible. We have alleged that was done. In retaliation for the Trump Organization alone to produce the tax returns as part of the subpoena. Says not necessarily which point out regarding politically necessarily. There are concerns brothers was given the pitch of of getting the president s tax returns. But your honor, its difficult to plea and even under law, at the lowest law requires that the. [inaudible]. And obviously once it is passed the pleading stage, issued motives will be litigated and we will see what is what. We think it is improbable. Because efficiency is not enough. So just so i understand what your ultimate is as you allege with the extremely investigative scope. Your view is very clear that the investigation was limited into the 2016 payments that was no other component at the time the statement that was made and that it has not. [inaudible]. Rated. Correct. Those payments did not expand in the article, the only article referenced. Says that in the District Attorney tries to walk away from that by saying it is unclear whether it was expanded. We can rely on the statements and articles is hearsay statement. The motion would be dismissed. Is that correct. We cite those portions of the article. That is entirely appropriate. Were talking about the complaint here. The complaint was allegedly. Briefly elaborate on this your honor. We actually think it helps out. Okay. Thank you. Before we end. I would like to ask the presiding judge would direct the parties that the presiding judge finds appropriate freedom think very soon to give us a brief letter setting forth the question whether there is anything in effect right now this is the enforcement of the subpoenas whether it is an agreement of the District Attorney said on the record or whether it is in order of the court. So there can be clarity the nonenforcement of the supiegoine part of the District Attorney or pursuant to a prior agreement or pursuant the order of the court. I so direct right of i think tuesday at noon to be plenty of time. Thats fine for office your honor. Should be a company, accompanied by the exact text of the statements or quarters in which the argued inference is brought. Thank you. Thank you all for your good arguments. We appreciate them. In the court will reserve the decision. The other cases on the calendar on the admission in the cspan is live at the white house where trump is getting ready to speak to reporters. [indiscernible conversation] [indiscernible conversation] [indiscernible conversation] the president will begin at 5 15. Warning. Two minute [indiscernible conversation] we turn back now to the coronavirus pandemic. We are joined by dr. Shatner. Dr. Of Infectious Diseases at Vanderbilt University. Good morning to you sir. Lets start with the numbers. We passed 200,000 coronavirus deaths in this country this week. What do you make that the protections projections that the u. S. Death toll could double before we get to the point of largescale vaccinations in this country . The virus loves to be transmitted in those circumstances does not care who you are or where you are. It just has job want to be transmitted to another person and over much of this country, it still is being transmitted in a rather unimpeded fashion. It has gone from cities into rural areas where obviously it does not spread is quite as explosive a fashion but it is moving steadily. National,o not have a coherent single effort to try to curtail this virus as it spreads. The virus will continue to spread. Moving steadily, where next . Is this a cyclical cycle back to concerns about big cities again edit back to rural areas . What is your thoughts about the progression here . One of the things we do not know very much is whether this virus as a seasonal component. Spring, we thought perhaps it would abate during the summer and it showed us it would not do that. Itselfeven reenergize and spread worldwide in the wintertime . We spent more time closer together indoors in the winter, so there are more opportunities nearby for the virus to spread. That of us are concerned this fault we will have a pandemic. We will have covid continuing and the flu will arrive. Similar butok very they will be acting together. That could be a very large strain on the health care system. We should all get vaccinated against influenza. That is the virus we can do something about right now. Byis not a perfect vaccine any means. It will nonetheless prevent many infections. Even if you get flu despite having the vaccine you are verily very likely to have a less severe infection, it less likely to need hospitalization, be admitted to intensive care units and you are less likely to die. What is wrong with that . Flu vaccine have anything to do with the coronavirus and whether you would get any more or less severely . The two are quite separate. Think of covid and the covid fluine and the flu and the vaccine as two separate tracks. We are talking about trying to prevent flu. Of course there are covid vaccines in the works. We will be talking about that in a few months. Two are quite separate. We are talking with dr. William shatner. Joining us to take your questions about the coronavirus as we head into the fall and winter seasons here. Phone lines split by region, [inaudible] in the eastern and central time zones. 202 7488001 in the mountain and pacific time zones. Dr. Shatner, on the coronavirus vaccine, what do you think is a realistic timeline here and any concerns about the public trusting this vaccine when it does come out . Those are two very large issues. I would anticipate someone toward the end of the year, beginning of next year. There are now several vaccines in the works that are starting were well into their vase three trials. We will have perhaps information on any number of vaccines coming along in sequence as these trials complete themselves. There has been so much politicization about this discussion of vaccines that i think there is a lot of skepticism and concern about their. Surveys show that. ,urveys do not look at doctors and i know from conversations around the country and from emails set around the country at the medical profession is also somewhat skeptical. Will will be people who withhold themselves from vaccination waiting to see how things play out and their major concern is safety. Vaccine . Afe have we cut corners . We have not cut corners. We are looking forward to the results of this data. We need to present in a very transparent, clear fashion in order to restore the confidence of both the medical profession as well as the general public. Can you talk about how the fda intends to secure that trust of the public . What happens this week . Why can trump get involved in approval standards and that process . [indiscernible] the leadership of the fda has that we are taking politics out of this process, this decisionmaking process. That ann immediately fda issue is going all the way up to the white house not for information but for comment and approval. That is politics. That is see that, and why this concern continues both in the public and the profession. Under normal circumstances, information after a trial is completed, we would be presented by the manufacturer to the fda, who would then get that information to an external Advisory Committee that has been long established. They are notoriously rigorous and notoriously independent. Y give advice to the sba, alwaysich several months follow. If the fda take that route, a lot of us will have more confidence in the process. In addition, my advice would be, politicians stand back. Let this now be a professional decision, support the professionals and we will start to restore confidence in the process. Indicated hemp might get involved in this process, the fda administrator was before the senate this week. Long,s about two minutes but i want to play it for viewers to let him hear let them hear about the process of vaccine approval and come back and ask about it. [video clip] sponsor reaches the conclusion that the data from its phase three Clinical Trials are adequate to submit to fda, they will decide whether to apply for approval or emergency use authorization. This will be based upon the trial meeting prespecified success criteria established by that sponsor. This is really important. They should also be consistent with fda recommendations regarding those criteria. Fda will receive that application or submission, and our career scientists will review it, safety and efficacy data as well as manufacturing quality and consistency data. After gate made clear recommendations in our june 30 guidance regarding the safety of vaccines so that we can see that prior to the approval process. We will also work to provide Additional Information so that it is clear what we expect to see should a sponsor choose to submit an emergency use application. As we have indicated previously, we plan on seeking advice from the vaccines and related biologics Advisory Committee comprised of independent members who have been screened for ethics conflicts. The safety and effectiveness data and the committees decision will be public, although we will need to adhere to confidentiality requirements. The public will have an opportunity to comment. The process will be transparent and independent. Fda career staff will then take the Committee Input into account as they make their decisions regarding application or request. Eua,e we were to issue a fda would have to determine among other things the statutory standard is met. We expect that this would be demonstrated based on adequate manufacturing data to ensure vaccines quality and consistency and data from at least one welldesigned phase three Clinical Trial that demonstrates safety and efficacy in a clear and compelling manner. Let me emphasize that again. Data from at least one welldesigned phase three Clinical Trial that demonstrates its safety and efficacy in a clear and compelling manner. Eua wouldxpected and include a followup to monitor safety among the visual individuals who receive the vaccine. Fda will not authorize or approve a vaccine we would not feel comfortable giving to our families. 17,000 plus the employees of the fda, i want to make the following commitment today to the American Public and in committee. Fda will not authorize or approve any covid19 vaccine before it has met the agencys rigorous expectations for safety and effectiveness. Decisions to authorize or approve any vaccine or therapeutic will be made by the dedicated career staff at the fda through our thorough review processes and science will guide our decisions. Fda will not permit any pressure from anyone to change that. I will fight for science. I will fight for the integrity of the agency, and i will put the interest of the American People before anything else. The stephen hahn before committee. A lot of acronyms being used. What is the key take away . Strong is a very statement by the commissioner. Very well, but i have a couple of footnotes. Fda hast is that the not been quite that rigorous in the past, so that is the basis of concern. [indiscernible] i will take issue with two comments. He said something about confidentiality data. That is conventional. There is no need for that. You and i and taxpayers in this country ive put a lot of money into this vaccine. There is no need for confidentiality. We need to see the data, all of the data at the same time they make the recommendation. The other thing is they do have procedures where a trial can be looked at before it goes to thatetion, and if they do and make a decision, for example, halfway through the trial, that would be at the very least controversial. It might be procedurally appropriate, but it would be controversial and particularly so on the safety side. That is where all of the concern is. We ought to have the largest possible safety database before there is an approval. A lot of people would say if you are making a decision before you come to the end of the trial, that is cutting a corner. That would be controversial to say the least. Host dr. William shatner, our guest front Vanderbilt University Medical Center has joined us several times throughout the months of this pandemic to take your calls, to hear from you, your questions when it comes to the coronavirus and treatments and vaccines. Taking all of your questions this morning until about 9 00 a. M. Eastern. We will start with karen, detroit, michigan. Caller good morning. I was just concerned about the winter months and what is your advice on concerns that we should do when we are all closed in and the mutation confirms about that. Guest the winter months are coming, and as we said before we expect not only covid but influence. My recommendations are clear. Everyone over six months of age should get vaccinated against influenza. We are coming onto october. October is the golden time. That is the time to get vaccinated. Please get vaccinated. Take your whole family and your whole neighborhood and get vaccinated against the flu, and then all of those other things we do to prevent covid, social distancing, wearing the masks, avoiding large groups, they will help protect against covid and fluke. It is better we all do all of those things, the better off we will be all of us going through this winter season. Ohio. This is jim, shiloh, caller i would like to know just how terrific this virus is, because i watched the tv every day, and all of the recovery so why areery high, we locked down . Guest we are locked down because 200,000 people have died of this virus. Yes, that the majority of people who get infected with the virus and have mild or no symptoms, but this virus is moving to the population. At the moment, only a small proportion of live in the United States have been infected. If we keep having lower infections, and that looks as though it is in our future, then continuing large numbers of people will die. Mind you, lets just compare to influenza. A really bad flu season such as two or three years ago, 85,000 people died from influenza. Already, 200,000 people from covid have died and that is an underestimate. Continuing very serious infection that will continue to make people very sick, taken many people into the hospital. You would not ask your question if i could take you by the hand, bring you into the intensive care unit [indiscernible] pres. Tru