Supreme court. The justices remanded the case back to the lower courts for additional consideration, including separation of powers concerns. Oyea oyea oyea, all person having business before the United States court of a good morning. Good morning, your honor. May it please the court. In april of 2019 when the Oversight Committee issued this subpoena to mazars it had an extraordinarily broad view of its own investigative authority. According to the committee, the power to subpoena the president s personal papers was could he extensive with the power to legislate and did not have to give any reasons or explanation with what legislative goals its pursuing and had no duty to meaningful narrow or tailor its request. That view of its own authority is reflected in the subpoena which is drafted in incredibly broad terms and substantiated with little more than a sentence, a vague sentence in a memo about legislation. But the committees view of its own authority was rejected by the Supreme Court in this case 90. The Court Announced a new test that substantially restricts congresss power to subpoena the personal papers. In response to that decision the complete did not withdraw, narrow or even reissue the subpoena. It instead attaches a 25,000 word memo in the brief and attempts to argue that this satisfies a standard that the Committee Never invisioned that applies to it. And its impermissible under the law and violates federal rules of appellate procedure. This court should reject it. If i can mr. Norris, the Committee Says in the supplementary brief that we can still rely only on the record to sustain the subpoena. If thats the case, doesnt that meet your concerns about the memo . If this Court Limited its view to the cummings memo alone , wed still have our arguments that the District Court is better to apply in the first instance, but it does why is that basically the four factors identify legal questions that we can ask and apply to the record. I understand your argument that you dont believe we could sustain the subpoena on the existing record, but if we thought we could why would we need to remand this . What additional finding would there be . The court identified four questions, and we can apply those. In fact i think in the briefing these are legal questions. Two responses, judge tatel. Even on power questions of law this court is a court of review and benefits from the District Courts application of the Legal Standard in sharpening for the appellate review. More importantly and secondly we do not believe that all four factors are purely legal questions. A few examples, the first is to what the subpoena to the president is reasonably necessary to accomplish the legislatures goal. That question such as what effort has the committee made so far to obtain this information, who else could it ask. Would those be fruitful . Those are questions of fact. The cummings memo says nothing and the maloney memo says i hear what youre saying about that, but the committee has said they have the burden of proof here, they have the burrden to show what theyre seeking is reasonably necessary. They told us that this record is sufficient. We can look at the record if we dont agree with them. We would not enforce the subpoena. That would be the end of it, they would have failed to demonstrate that the information achieved is reasonable and necessary. I mean, ill ask him some questions, and he does say he believes he can sustain this on the existing record, then we dont agree, i dont see why we need to have more fact finding, the burden is on him. The burden is on the committee. Understood, your honor. I dont disagree with most of that. I believe that there are some facts here. Im sorry, can you repeat that . Well, as i said i didnt think you would disagree with it because so, then you agree that we could we could, we could confine we could in fact, theres nothing in the Supreme Court decision, is there, that could suggest that we need a different record to decide this case . The court just identified four factors, told us to apply, the dissent suggested it couldnt survive on this record, but the court didnt say that. Right . Theres nothing explicit in the Supreme Court decision about the record. Again, i said i think theres some implicit signal from the Supreme Court, the committee has to identify its legislative purposes with specificity and identify a particular legislative goal, and said that vague and loosely worded explanations are insufficient. I think its a description of the cummings memo in the most conclusory sentence says laws and proposals within our jurisdiction after listing several plainly not legislative goals before that. Its quite vague. And quite insufficient under the Supreme Courts test. And thats my main answer to this courts limiting itself to the cummings memo, which we think is required under the federal rules of public procedure. The main response we have to that is that the committee cannot possibly win on the existing record. The cummings memo does not sufficiently identify legislative goal, it does not provide the specificity that the Supreme Court said is required. Theres no explanation in the Current Record as to what other effort the committee has made to obtain this information, and judge taylor, youre correct, they have the burden of proof on that question and there has i would say they have plainly not satisfied it. There has never been a subpoena let alone a document request for these particular documents. That was never sent to us, to the Trump Organization. Never even been an attempt, that the first request for these particular documents was sent around the Trump Organization to a neutral Third Party Custodian. No attempt to subpoena us. If they had attempted to subpoena us, i would direct the court to page 105 of the joint appendix. If it subpoenas you directly, it has in the it has a requirement if it agrees to accommodation effort to you. That process does not apply when the committee uses what it calls a friendly subpoena, which is a subpoena to a neutral Third Party Custodian like me and it Third Party Custodian like mazars. It has no accommodation requirement. So the committee has made some unrelated request to or loosely related request to the Trump Organization and to other executive agencies, and if you look at those requests which are directly to the older and really party of interest and information, those requests each time are much, much narrower than the request made to mazars. So i think that demonstrates when the committee is forced or knows it has to go through the accommodation process, it narrows its request to focus on the information it needs instead of asking for everything under the sky, like it does when it goes after neutral third parties. Can i ask mr. Norris, i think were you starting to talk about aspects that you thought of the maloney memorandum that were not purely legal. I think you meant you would factually dispute and you talked about the reasonably necessary standard, was that it or were there others. Im not sure i got your point to consider factually, not legally. With respect to the maloney memorandum. Judge, i think your question to be, what would be in dispute for purpose of Summary Judgment. Since the reasonably necessary has several sub facts, we dispute their characterization of how accommodation efforts have gone so far. We dispute that they would not get productive information from us, from a direct request to the Trump Organization or to white House Counsel. There are parts of the maloney memo that what do you mean by that . Do you mean that had they is it your position that had they made this request directly of the Trump Organization that documentation wasnt forth coming from the attorneys from the organization and from agencies under the control of the white House Counsel and others, the president i want to make sure i understand, its your representation that documentation would have been because you know what the request is. Or simply of asking, would have say no and right back to square one . Its more of a mixed question, i would say its im not asking for that label, im asking for a factual response to this position. What do you mean by that statement, they should have asked us first . Is it a procedural step or are you saying factually that something would have changed had they asked you first . Correct, so we have legal purpose based challenges to the subpoena that we still make. Of course, of course. We still think this request is illegal directed to us. Im not asking that. If all set aside wed be willing to negotiate in many cases and would do so here as well, but your First Response was you would not have responded because of your legal objections. We would have raised the same legal objections, but there still could have been room for negotiation and compromise. Could, imasking asking would. It is hard to know. I dont think it is hard to know. If you talk to your clients, saying we are willing to work with you further than what the executive branch and the agencies and the attorneys and organization have done in the past, but it would have been a more fruitful course, or is it more of a procedureal objection . Our willingness to negotiate is genuine. I cant predict the way the negotiations go, we have a good working relationship with mr. And a lot of respect for him and throughout this. I dont have any authority. Compromises on any document disclosure, just on the procedures for adjudicating this case. There have been no voluntary disclosures so far, but there havent been much opportunity to do so. Youve had every opportunity. You could have volunteered. It is done all the time. You dont need a court to say you guys go talk. You could have initiated this on your own if you thought it would have been fruitful, and and said look, lets call mr. Letter or whoever in the house who is the appropriate person and say, look, lets talk, were happy to lets see if we can work something out here. But that hasnt been done. Your honor, there have been discussions, ill admit they have been limited from my understanding, and the parties have fairly diverse views as the case goes on as to what the law requires and who is likely to succeed on the various argument. But respectfully, we didnt we prevailed in the Supreme Court. I think that the ball is in court in terms of helping narrow and find the documents most interested in in fact, in the parallel second litigation, there were three subpoenas involved, the house withdraw one of them after the Supreme Courts decision and it narrows the remaining two. There have been no system similar efforts in this case. Go ahead. I distracted i really wanted to get to the list of things you think are factual disputes. Under that umbrella disputing the accommodations is , there more to that one or other prongs that you think are im not sure i meant to say i am not sure there are representations about what was produced by various agencies. One is that the committee reviewed several documents in camera and decided they were insufficient to satisfy its goals and what the documents actually said. Okay. What was the last sentence you said, that what . Theres no explanation of what those documents are, what they said or why theyre insufficient. In camera, are they allowed to describe the contents in camera disclosure . Perhaps not. Im just trying to see your objection, hard to do. By unilaterally clearing accommodation efforts. [indiscernible] im sorry, Justice Maloney is what im talking about. I think there is another umbrella. The Supreme Court said it needs to provide evidence of what its doing, and this court knows the committee is genuinely pursuing this legislation that the subpoena is an attempt, i believe i may be over my time. Thats okay. Keep going, we have more questions anyway, go ahead. We had a dispute whether this, the legislation identified in the maloney memo is truly one being pursued by the committee, whether these requests are reasonably necessary or reasonably relevant to that legislation, and part that have dispute, if we sort of take ourselves to a time where the maloney memo is in the record and talking about it that way, there have been a lot of shifts in the explanations, and we started in the District Court and discussing the informing function that the committee wanted this information and provide it to the public and inform about the president , and we move then to a hearing about Michael Cohen and his allegations of supposed criminal misconduct in 20112013. Theres a letter that explains thats what the committee is looking into. And then we have, as this court knows, in a proceeding the discussion of impeachment and that the subpoena is somehow attempt to support an impeachment theory or impeachment proceeding and now the maloney memo that takes Michael Cohen and puts him on the back burner. These are the no longer the subject of the investigation, but three goals we believe were separate investigation from this one now being used. Mr. Norris, can i ask you, under the Supreme Court decision and points you were just making, do we have to accept the committees legislative purposes on their face, or can we inquire into the validlity of that purpose . Or under the Supreme Courts test can we only inquire into the validity, that the congress the evidence that congress uses to establish its purpose. I think the court said the committee needs to justify what it is doing with evidence, and part of that is evidence needs to justify the significant step of involving the president. I think that thats fairly searching review as to what the committee is doing and fairly evidentiary and fact based and part of that is the Supreme Court has helped the lower court insist on a subpoena thats no broader than reasonably necessary. I think all of that is fairly searching. Is there in your view, can you give an example of a subpoena that would be reasonably necessary . Because one of the main take aways for the Supreme Court decision is that we have to balance these competing interests. Im wondering in your view what would it look like . You say this is not reasonably necessary, what would it look like for congress to Say Something is reasonably necessary . Can you give us an example of that . I think the easier examples are the ones that cause the Supreme Court not accept the standard. The court was concerned that the president s papers are not just purely personal, but sometimes infused with official decision making, and reveal things that function to the executive agencies or official conduct. The Supreme Court i think if you look at section 2 c on the bottom of that section of the opinion. Im sorry, finish your answer. I didnt read opinion at all. Go ahead. I do think the court was thinking about personal papers that are infused with official actions. Im sorry, judge, would they still be personal papers, official actions. I believe theres an example in the opinion where president reagan spoke to diary, sort of the most personal documents you can imagine, but they had some relevance to an investigation that involved canada, i believe is the example in the Supreme Courts opinion, but you can see instances like that, but the Supreme Court also said in the next section that personal papers like the ones at issue here have a quote, less evident connection, quote, to legislation. And so, these types of the cases, i think the court could impose an impermissible or heightened risk, doing something impermissible or focusing on true legislation. Can the committee ever seek the president s personal papers for any purpose under the Supreme Courts test . Is there any time when such papers would be permissible to seek . I think that i think that the Supreme Courts position, Justice Thomas addresses this directly, but the Supreme Court does not. I think all we know from the Supreme Courts opinion is that those occasions will be very rare and will have to satisfy the multipart task and personal papers have less evident connection to legislation and heightened risk that something is amiss, that something, exposure or Law Enforcement or pure politics is involved. But i dont want to say never. I dont think that the Supreme Court said never in its opinion. Here are the rigorous requirements we are going to use. I want to ask you a question about the statement youre making in your brief. I want to be sure that we agree on what it is we have to decide here, and what it is we dont have to decide. You say the court, this is a quote, unanimously rejected the panels view that the house rules and resolution authorizes. Im curious about that because when you argue that in your brief before the court, and the court never mentioned this issue at all and one would , have thought that if the whether the subpoena was properly authorized, it not only would have said so, but wouldnt have addressed the question of our proper standard nor would have needed to articulate [inaudible] could you explain to me why you of the househority is still your position. Yes, your honor. How is that . Could you explain that to me . Yes, we think that in that statement that you quoted, thats in our brief. That may be a little imprecise. What we meant was, the rationale underlaid this house rules reasoning was rejected by the Supreme Court because the Supreme Court told us quite clearly that this raises sensitive separation of powers and constitutional concerns. Yes, but the courts response to that was to articulate four factors that we have to apply. They didnt say anything about the adequacy of the House Resolution, right . There is no discussion of the house rules in the courts opinion. I do think speaking as an issue, however, because its vacated this courts decision in full. It vacated it with instructions to proceed in accordance with its opinion, right . Correct. And thats my question to you, i want to be sure we understand your position. The way i read the Supreme Courts opinion, it is a directive. Set aside the debate for the moment. Even if you are right, we have to consider the maloney memo and you raise that maloney has to go back to the District Court. I want to make sure we understand each other. The way i read these opinions, the court has vacated the opinion of the d. C. Circuit. With the directive to apply the four factors in this case. Correct . I would dispute some of that. The directive to apply the four factors. But i think in vacating this courts entire decision, would have been fairly easy to drop a footnote in the opinion saying that we agree with the lower courts analysis with the remaining arguments in this case. It would have been easy to affirm in part and vacate in part. The Supreme Court did not do that. On one sufficient basis to decide that two consolidated cases in front of it, the separation of powers and the test was a sufficient reason to vacate. And so, i believe wipes out the opinion of the court completely so the questions are back before you. We cant prevent you from if this court had doubts. If the Supreme Court had agreed with you that they argued it before the court, i mean the argument you made was there no need to address the weighty constitutional questions because the House Resolution is inadequate to authorize the subpoena. And the court could have if the court had agreed with you, it could have avoided these tricky constitutional issues and just invalidated the subpoena on that grounds, but it did not do that. And we know from Supreme Court precedence, constitutional avoid ance, and that was easy. As you said in your brief, you can avoid the questions by declaring that the House Resolution was inadequate. The court did not do that, they did not even mention it. I honestly dont see i think the court would be stunned if we issued saying weve taken a look at this again and now realize that the House Resolution is inadequate. I understand what youre saying, judge tatel, i think the court spoke when it vacate this opinion. Ntire i understand your opinion. Thats fine. The Supreme Court takes [inaudible] im sorry, you think that the Supreme Court takes constitutional avoidance clearly . It, raisensider constitutional questions [indiscernible] i do. I think this is an odd case in that there were two consolidated cases with two sets of house rules that would have had to have been investigated. Mr. Norris, can i ask you a related question. Even if we were to reconsider your clear statement, that the house did not clearly give its power to the committee, i mean, what about House Resolution 507. Isnt that a clear statement . What more would we ask from the house . If we were to say you need to make a clear statement, what could they do or what would you envision that they do other than Something Like House Resolution 507 . Havent they in fact given us a clear statement here . In terms of the what else, our position is the same that they would need to amend the house rules themselves to specify order to get the president s personal papers and then reissue a new subpoena under those rules. You would have the court till the house what format it should terms of organizing the authority of these committee . That a court should say you have to do this by a rule and not resolution . Isnt that judicial interference in the house rules proceedings . I dont think so. I think that principal flows from this courts avoidance in this area. Even if we accept that, why isnt House Resolution 507 enough . You think it is not enough because it is not a rule, is that a distinction that should matter from the judicial perspective . The distinction is that it is not an attempt to amend the house rules. The house rules according to case law our jurisdictional for the committees, only source of authority that cannot not outside of it. I do think theres a difference between a resolution with the outcomes of an investigation versus one that changes the reissue as and subpoena. I agree with the majority opinion from the court in this case earlier that the resolution does not purport to, and theres a separate argument which we made which is even if it did , theres an open question about whether the timing was correct. Whether they need to reassure reissue the subpoena after the resolution or look at the committees authority of the time the subpoena was issued and can be retroactively admitted. All those questions were litigated the first time or it in the court said we may well be right about the retroactive ity. The things were not right about according to the Court Whether this case presents constitutional questions and whether subpoenas for the president papers do, in fact, implicate the house authority. Those are the questions we think [inaudible] following up on a discussion about the House Resolution, just to read you a sentence from one of our decisions, although the Supreme Court vacated our entire opinion, it expressed no opinion on the merits of these holdings. That is, the holdings that were not before the court. They therefore continue to have preferential rate and an absence of authority. Why does that apply precisely to the issues the adequacy of the House Resolution constitutional avoidance and all the other issues . You think we are not free to revisit. Yes, we dont dispute that principle. You dont . No, but president ial weight does not mean find it. Names that they can and you can choose to. No, no, no. Not the opinion. Talking about the issues that were not decided by the Supreme Court that were decided by the panel. Correct, and [inaudible] [indiscernible] correct, we dont disagree with that sentence. The vacated issues is not passed on by the Supreme Court continue have persuasive force. The Supreme Court didnt speak to those issues directly so this court did not forbidden from readapting those. Those do not have actual preferential, they have persuasive force. The key part of that sentence is absence contrary reason to disturb them, we think the Supreme Courts opinion has reasons to disturb all of the Prior Holdings of this court that it did not specifically address. The clear statement of principle we just discussed, the court told us even if this be the were issued the antihouse it would still present separation of powers concerns. In terms of Law Enforcement exposure, the Supreme Court told us that, youre right about that. That is completely correct. I was just focusing on this simple question that you raise in your brief about whether or not the House Resolution is adequate to support the subpoenas. Im trying to find out why you think that its still an open issue for us, given the fact that the Supreme Court already argued it and argued that would be a basis for awarding constitutional questions. Didnt say a word about it. And instead, addressed the ,onstitutional question rejected your what it called demanding to come rejected the house you and the force factors rejected the houses less demanding view and the force factors to apply. It did all that. We did argue im hesitant to put a lot of weight into Supreme Court opinions sorry, you just broke up. Could you go back to beginning . Go ahead. Im sorry, judge tatel. Interpreting silences in Supreme Court opinion is always a dicey exercise. Articulate nonsilence . [laughter] exactly. But i do think the Supreme Court didnt confront the constitution question in this case is whether the subpoena would be enforced. The Supreme Court articulated a test for how to assess congressional subpoenas for the president s papers. It didnt apply the test itself. It gave guidance. It thought that guidance was sufficient to vacate the decisions of this court in the Second Circuit and remand and that we believe with all the issues back on the table with the Supreme Courts guidance in mind. Okay. Mr. Norris, i have one more question. Do you think in this context the District Court or even this court has the authority to narrow the Committee Subpoena . Is there Judicial Authority either in the District Court or with us to do that . Or would such a subpoena have to be voted on by the committee . Weve argued there are cases that narrow congressional subpoenas. I do think the Supreme Courts opinion in this case may have overtaken those prior authorities. The court has a line that says, paraphrasing here, i believe its the court must insist on a subpoena that is no broader than reasonably necessary. Insist on a subpoena sounds to me what we argued initially which is the subpoena needs to be good. If there are defects, the court can identify those defects and the committee can fix those specific defects, but i do think the committee needs to go back to the drawing board and do the work except. So theres no possibility for narrowing the subpoena by the District Court . All i can say, judge rao, courts have done it in the past. In terms of whether they can do that, i think thats questionable in light of the Supreme Courts decision but, of course, we would be happy with a narrower subpoena compared to the subpoena were not. Compared to the subpoena we have now. Thats one of the reasons for remanding, right, this hospital District Court might have some Greater Authority to narrow the subpoena. Im wondering if that is even an authority that the District Court has . I think it is an authority they have, it would be a benefit. I also think, with given other we have given other reasons why the District Court is better suited here especially to evaluate the effectiveness of accommodations, where the facts in the record. Judge ramos in the Southern District of new york, parallel Second Circuit case, said its if this were a normal subpoena case, he would have forced the parties to narrow it down to the key dispute. I think that our supervisory factfinding and even legal questions that District Court is well suited to address. A followup. [indiscernible] it is your position that that injunctive relief cant be granted in part by a District Court . It is all or nothing, or do you think you can get a partial injunction . I think thats exactly the question that is in the case law is our position is completelaint injunction, or is it your complaint without a District Court to grant your motion as part and denied in part . Correct. We sought to quash the speed in full. I am going to try one more time. My question to you is [indiscernible] is it your position that the District Court would have the authority in your complaint to grant your request for injunctive relief in part, but not in whole . What is your position on that . One, does it have the authority and two did it reserve that request in our complaint. Answer them the both. Us as allly serves the appropriate relief which would encompass lesser injunctions. The appropriate relief from this accord with encompass narrowing the injunction . Im not talking about the court of appeals, the District Court. Correct. Thats what i was trying to figure out, thank you. I dont have any more question. Judge rao . No. Thank you, mr. Norris. We will give you a minute or two on rebuttal. We will hear from the committee. May it please the court. Can you hear me . Just making sure. Yes. Im the general counsel of the house of representatives, good morning, your honors. The court asks a wide range of questions, and i have notes on all of them, so i wish is going to jump right in and respond to the batch of questions the court asked. Can i interject with the question . Of course. Can litigation be plausibly be concluded before january 3 . Our review for option on the Supreme Court review . It definitely can, your honor. You can issue a ruling enforcing the subpoena in full, or in part. You can issue the mandate right away, then President Trump will have a decision whether to seek for the review at all, seek review en banc or cert, but presumably he would seek a stay and if that state is denied, then the material would be i assume President Trump would comply. The material within be released, then bematerial would released whether that would make it moot, a strong argument that would make it moved. All of the circumstances existed in the Harriet Miers case, yet the court postponed until a new congress. Honor was on that panel, so im going to defer to [indiscernible] anybody can read the opinion. My memory was that was closer to january 20 think that we are january 20 date than we are now. And it was also in District Court, District Court ruling. Here all of these issues are teed up in this court, could rule very fast. The court could issue lets go back to the Harriet Miers case. The timing was almost identical. I do not have the dates in front of me, but i think we were in october. The court made it very clear that it couldnt be resolved by the end of term. In fact, in your brief you distinguish the case by saying this case is different because in that case the committee conceded that it couldnt be completed by the end of congress. But thats not what it says. It says the committee acknowledged, acknowledged just the reality of the timing that lets assume the opinion is out in two or three weeks. It took a month in the most recent en banc, and by the way, court inhe en banc another case you have two d. C. , circuit instances under circumstances almost identical to this, we decided its best not to act until the new congress is in place. Its hard for me to see how to avoid that in this case. Two points, your honor, and i apologize, your honor, maybe you know in order issued that i do not. This Court Granted en banc and sorry, are you saying the court agreed not to decide i scheduled an argument, oral argument was scheduled for february. Your honor, remember that this case easily could be carried over into the next congress. This is something that this case and now. Yes. What happens thats what its exactly like Harriet Miers. First of all im not acknowledging apparently what was done in miers. Legally this court can and should rule quickly and enforce the subpoena, but if the court doesnt, then this matter clearly all that has to happen is on the initial day of new congress, january 3, it often happens that the congress then renews ongoing litigation, and we have a batch of cases that are in that same exact situation , and we fully expect that would be what will happen. Does that mean they would reissue the subpoena . I dont know how this technically works. Your honor, my understanding is that in the past the house has not actually issued new subpoenas, that the Committee Chair can just say, we continue with litigation of that subpoena. Thats my understanding of one way the house can do it. The subpoena itself does not have any kind of expiration . Normally it would, your honor, but in this kind of circumstance, my understanding is the committee, the whole house, this would be done on the first day of the whole house, and the whole house would say we are continuing the litigation. The house could say were continuing the subpoena, or the Committee Chairs could do so. That would be up to the house to decide. The whole house my understanding is thats one way, your honor. I just dont know the answer. Do we know who the Committee Chair will be on january 3 . The Committee Chair that could change, right . Changes, ofjority course we dont know. If the majority holds and there been many, many times in the history of the country where it holds to the same party, and then in that circumstance of very large percentage of the Committee Chairs remain the same. And so the Committee Chairs, my understanding, a practical matter, would be doing things at the beginning of the new congress before all the committees are totally set. It can take some time for Committee Assignments in total to be set. The full house continues yes, your honor. Your answer to judge millett makes it even closer to miers. We say in miers, and im quoting here, if the case does not become despite the expiration of the subpoenas, there would be no precedent for immediate petition. That is what we said in miers. We said it has the additional benefit of committing the president we dont know about that presenting the new house an opportunity to express their views on this. It seems to me almost identical to the miers case. Your honor, there are some significant differences here. Here. By the way, i have now been informed that the committee im sorry, your honor . I missed what you just said. Say with the significant difference is. Yes. I need to correct something i said a moment ago. I am told that you new subpoenas would be issued but could be identical, and what happens is the Committee Chairs are selected in december, so we would know on january 3 the Committee Chairs are. So the Committee Chairs, and remember, the Committee Chairs for all committees issued subpoenas under current house rules. That would be known on the first day, before the first and women before the first day we would know who the Committee Chairs are and the Committee Chairs , consistent with what the whole house does on opening day, the Committee Chairs would the would renew identical subpoenas. In light of an intervening Supreme Court decision, think about whether they want to we dont know if that would happen automatically. They might want to think about whether they want to invite of a Supreme Court decision, invited intervening facts, whatever. Your honor, thats no different from today. If the Committee Chair wanted to change or withdrawal anything with the subpoena, Committee Chairs are free to do that right now. It might be, but if you have changed membership obviously if this change in party, a change in membership or if you are issuing subpoenas, logical time to revisit issues. And so sorry, i wanted to get quickly back to the question on which differ. We have had longrunning litigation, as your honor mentioned, this courts prior opinion was vacated, but under circumstances that it remains binding precedent on a whole batch of issues. So this court, unlike in miers, this court has already ruled on most of the legal arguments here. The Supreme Court has said didnt give enough way to separation of powers issues because we should consider this a subpoena against the president , and therefore we need courts to weigh under four factors the Supreme Court said would be taken into account. Thats a very, very different from the situation in miers and indeed for the recent study been for the reasons shared in our brief, we think most of the key issues in this case have already been decided and not touched by the Supreme Court. Thats why it seems to me this court could and should rule. This litigation has been going on for an extremely long time , and theres no good reason for the court not to issue its decision, issued its mandate, and you will see what happens. It may very well you said there were significant differences. What are the others . I guess the fact the difference in the status of the cases, two cases seem to be very significant. When i say status, that is singular, but there are various parts of the status that make up a plural. [indiscernible] judge rao might have. No, go ahead. You say i want to proceed the same questions with you that we talked to mr. Norris about, did i understand your brief correctly that you believe we can decide this case based on the Current Record, correct . Yes. Without looking at the maloney record . Yes. Can look at the record, and because i think this is hypothetical, and because i think at least two of the four i will tell you what they are. Two of the four factors seem to me to be much tougher than what we apply. It seems to have an exhaustion requirement in it, and it also reapplied for reasonable relevant standard and thats different, thats obviously a lighter standard than reasonably necessary. Suppose i look at the subpoena and i think that based on the cummings record it doesnt survive. Do you want the court to go on then and look at the maloney record where you say the gaps are filled in, or are you prepared to say you are happy to the subpoena live or die on the cummings record . What we said is this can be upheld on the basis of the cummings material, but if you have concerns about that, you definitely should look at the maloney memo, and we believe the case shows that you can. It seems to me obviously its not directly on point because we didnt have an exact situation like this on the Senate Select committee which Court En Banc looked at new material. Look at what happened outside congress. It looked at what happened inside congress, and it applied the circumstances of right then and there whether the subpoena should be in force. Should be enforced. Thats all were asking. Let me give you a very specific example. And again just a hypothetical. Yes. If i were to apply the reasonably necessary test to this case, i might wonder about the documents, subpoena going on all the way whether those, while they were originally relevant they may not be reasonably necessary. Still i think thats the case. Is it your position then that we should enforce the subpoena without those two years and we should go ahead and look at the maloney memo which would satisfy us that those to years unreasonableness or . I will answer the question yes, your honor, you should enforce the subpoena on the basis of cummings for 2013 and you should look at the maloney memo that then will give you the full grounds of why you should go back to 2011. I dont think the maloney memo actually changed the circumstances on that. If your honor please, i would be happy to argue about why. The cummings memo shows going back to 2011 but yes, you should as i said i answered yes, enforce part of it under cummings, look at maloney and that i believe will give you all the grounds for enforcing since 2011. Which if you dont mind, gets into the question asked before about could you enforce the subpoena in part . We think obviously we think the whole subpoena should be enforced but yes, we would enforce the subpoena in whatever way you think it is valid. The Deutsche Bank case, they thought one small aspect, the subpoena was there, should be , should not be enforced and so thats exactly what Second Circuit did. Is that you position the institutionally the courts can rewrite subpoenas from the house of representatives . You think thats within the judicial power . No, of course you cant rewrite subpoenas. What you can do, just like this court cannot rewrite statutes, but they make severability determination. The Supreme Court said they can do that all the time. And so what would be doing is you would be enforcing part of the subpoena, part of it not. Theres absolutely and by the way, this is obviously very normal practice in the regular rule of subpoena. Courts all the time enforce parts of it but that others. But this is not a regular subpoena. Its a subpoena from a coequal i guess have branch of government. [laughing] your honor, it is, it is from the entire house of representatives. Whose purpose is the only part that counts. Obviously this is a house subpoena and, therefore, the house speedy right but you are saying which is like any other subpoena. You are saying its the same. I think maybe its materially different and that limits our authority to modify it. Your honor, im sorry if i isspelled im sorry if misspoke. I didnt say it like any other subpoena. I said that you do this all the time with other subpoenas. I cant think of any reason why you would do this here. If you were saying, you know, youve made a very good case and action were going to extent the subpoena to 2020. I dont think you can do that. Or were going to say, in fact, we should also cover Vice President pence so we will do that. Of course you cant do that. You cant rewrite subpoenas. But just like the Supreme Court, and your court, severability determination all the time that , occasionally may look to some people like you doing some rewriting but you make very clear you cannot rewrite statutes but you do this all the time in severability determinations. I dont know any reason why that would be valid to. The question is on some severability. Is it your view the same duty to give affects to as much as possible place to subpoenas . Absolutely, your honor. This, this is a situation white where the house has said, the house and judge rao put up coequal branch of government, material and valid for us to get it, which this court agreed with. And, therefore, whatever the court finds some part of this cant be enforced, i do know any reason at all why you wouldnt go ahead and uphold what the house as a coequal branch has done. Im not aware of any theory that would say you should not do that. Im puzzled why that your own subpoena i think its a question. Obviously wants total control. We think the court should say that the house thinks the subpoena is valid, thats good enough for us but, of course, we are not going to get and the Supreme Court disagreed. But i dont know why, how they could ever possibly beat this court would say you answer ten items, we believe you are under the what entitled to eight but not the other two. We would say oh, no, if we can not get all ten then the game is over. Im hardpressed to think it would ever be a situation without the appropriate and for some reason if it were, the committee could say, no, its all or nothing that we probably wouldve said that in a brief in our brief. As the set of very hardpressed to think of a practical situation where that would ever arise. So obviously this courts obligation to uphold whatever congress does is proper. On considering the maloney memorandum, you referenced our decision in Senate Select committee that legislative developments there. Were those developments in factual dispute . Im pulling out the opinion to try to see whether there were any disputes. I didnt know if theres any factual dispute. Right. Theres no factual dispute you either. You can ask my friend mr. Norse. He gave me a list of things he does dispute in the maloney memo. Right. Theres no disputing about material facts. By the way, the original District Court, my memory is that President Trump agreed there were no material facts in dispute. I know, sure, but there was no maloney memo. The question is we consider we had a Summary Judgment record and now we have this maloney memo. Its judicial notice. We were given different theories for, but what seems to be Summary Judgment record the other side is arguing that they at a minimum we challenge some of the facts, at least within the think our material. That might be up to court to say there are material disputes. I think could bear some relevance, could argue could bear relevance to the Supreme Court there was enunciated in this case. And so that makes it not like judicial notice. It makes it not like Senate Select committee. So what is our authority for crediting everything in the maloney memorandum without the other at this level, this Court Without the of the site having a chance to offer its factual versions . Theres several questions packed in there so i will address each of them. Your honor, youre right, this Court Decides what is in dispute on material facts and opposition , there are no disputes about material facts because this court and the Supreme Court has made clear that what you look at are what congress what the house says is looking at, what it is looking into and why. And we satisfied this court last time on that, and what the maloney memo does come is it provides chairwoman maloney is statement, just like chairman cummings did. Chairwoman maloney statement of what the subpoena is about and why it is being pursued. This court, as it is than many times and the Supreme Court is done, this court must accept that. So theres no dispute. I assume mr. Norse is not saying that what we submitted with a brief was a fake, that the children no. Lets be clear. Thats not the argument, that is not what im saying. The point is theres more in that memorandum than heres our purposes. Right. Theres lots of recitation of what happened what interactions, request information from what response but information they got which might seem relevant to some people to the Supreme Court. That can be debated and argued. Right. Right. I was getting to that next. No. Theres nothing, you can disagree about whether we, the Committee Received one document or two documents, both irrelevant. We got some token tiny number of documents. So as far as what happened in accommodation, thats not material for this dispute. The Supreme Court never says anything about this court what , this court should you on is to look to see whether been sufficient accommodations. Thats not noted. With that be a relevant in assessing reasonable necessity . It certainly could be. The material fact is what mr. Norris admitted to you earlier. They have given us nothing. When i say nothing, again, they gave us some documents that are not on point, that a Public Information already. As far as what is in dispute here space thats an amazing reference when you say that. Who is the day . Neither President Trump or gsa. When you say they didnt ask the Trump Organization. We did. We did ask for materials. The main thing is since this case from the Trump Organization . Yes. Yes. And again, if i may, this has come up in every one of the subpoena cases, please bear with me for just a moment. This case, since his tax returns began every time the justice , department and or President Trump has said accommodations. Each time we point out the same thing. They have never, President Trump has never been willing to produce any documents. And remember, he has said that. He said we are not going to comply with subpoenas. So please, ask mr. Norris. I think you did this already, but its the same thing i said in every single court where i argued these cases. Ask counsel for the Justice Department or ask counsel for mr. Trump, what are you talking about . Is mr. Norris saying ok, well give you the 2014 Financial Statements . No. They are not giving us anything. So the accommodation claim is a complete red herring. Please, do not be fooled by this. This comes up every single case. We ask, we get nothing. So thats not, theres no dispute about whether, as a legal matter, we need to do more accommodations. They are not producing anything. And again, you heard that from mr. Norris. So thats not a material dispute. Material dispute is, would be if he said chairman pallone didnt say this. If chairman pallone did say it, thats what is appropriate for this court and Supreme Court precedents that makes it just like Senate Select committee. Mr. Letter, is it the Supreme Courts opinion that expressed some serious concern that the committee could not identify any information about the president that could be related to potential legislation . If you were to uphold the subpoena on say the comics memorandum, i mean, what would be the limit to what type of information the committee could seek . Could they say theyre interested in this president s Health Information because of his age or because he recently contracted the coronavirus . You know, what would be the limit . Can you identify one . Your honor, that we depend on that would depend on a different scenario. If a meet and this is not simply hypothetical. Suppose the president is going in for a major surgery. That would mean he would be under, lets say it would be a situation which would be put in a coma for a certain amount of time. As we know there are plenty of major surgeries that do that. So the president is going to be in a coma for lets say at least a week or two weeks. If that were the circumstance, clearly under some situation would be valid for congress to inquire, whether by subpoena or otherwise, what is the health of the president. Thats not this case at all. But would be the legislative purpose . One thing about the Supreme Court test, yet identify why the president , like a particular president information is reasonably necessary to your legislative purpose. But the more you focus on the particular aspects of the president , right, whether its his health or the briefs and the members repeatedly say this president s actions with respect to his Financial Disclosure. Doesnt that then move into the category of cases that the Supreme Court says are inappropriate, looking for potential Law Enforcement or exposure for the sake of exposure . Like the more you focus on a particular president , you know, concerned about a particular president , dont you start to move into the area into the areas of the Supreme Court has said are inappropriate . Your honor, that question gets right to the heart of this remand, and so i am very happy to address that. I think that is extremely key and i suspect its on the minds of all three of you. Yes, and remember, one of the main things were looking at here are president ial conflicts of interest because of financial things, and chairman cummings made that clear and chairman maloney explained that at great length. Congress has under the constitution, congress has power over Foreign Trade. Congress is asking this committee is asking, what conflict of interest do you have . Do you have, have you had, lets in 2012 did you sign a letter of intent to build a hotel in istanbul . Did you enter into a contract in 2014 with russian oligarchs . If the answer to that and we have no way of getting that information anywhere else, we dont know of any other way to get that, let me set aside just for a second. As we know theres been reporting, for instance, in the new york times. President trump is said at times, mr. Cohen is a liar and the times is wrong, ok . So, your honor, congress could say the president made a policy decision about what to do visavis trade with turkey or dealings with russia or china. The Oversight Committee absolutely has authority to find out, should we look into legislation to override those policy decisions because they were made as result of personal financial interests of the president . And, therefore, we believe those policies should be overwritten by legislation. That is absolutely clear it is within the power of congress. So we need to know, the biggest thing here maybe is we need to know what kinds of financial arrangement that, as we know, this president has extremely complex and opaque financial dealings. We also know that in his Financial Disclosure statements there have been very, very serious errors. So we need to know exactly for legislative purposes. But mr. Letter, those arguments, i mean, i dont believe those arguments are ones that you make in your brief. I mean, you focus on potential disclosure legislation or relating to emoluments. Now youre saying the president , alleged financial proprieties are leading to a number of other policy decisions that may need to be overwritten. We absolutely made this argument. Im hoping my colleague here can pull up page numbers for you but we actually made that argument, and it is discussed at considerable length in chairwoman maloney statements i believe, but we just check i think its at page 31. It begins i believe at 31 and it goes on for several pages. This rationale definitely is covered in our briefs and is in chairwoman maloney statements. Im told page 24 of the maloney memo is one of the places. If you what we can find exactly what are in our briefs. This is a key, absolute key part of our case. Other points, gsa. The suspicion is based by the press and the president says they are wrong, is that gsa may not have been given the appropriate information, for instance, about how much profit is being made. Mr. Trumps release at certain positions that mr. Trumps personal financial situation. Thats in the lease. Got that information from gsa directly . We tried and we were told we get nothing. So again, this is the committee that is being extremely responsible. It has very good reasons why it needs this information. And nobody can possibly argue that the committee cant pass legislation governing gsa. It could provide the gsa Inspector General who has expressed concerns about this very deal. The Inspector General shall be given more money, more inspectors, more power. We could pass legislation saying that there can be no contracts like this. You could pass this legislation without knowing the details of any particular problems that you might be suspicious of. And again thats the claim. This court and Supreme Court of said when congress doesnt have full information is like shooting in the dark. Let me just say, this court could issue based on lesson all of the facts. If you required by law to do it, you could do it but that would not be ideal. Here it is reasonably necessary for us to have the full information. And i will say it one more time. Remember, special ill say it one more time. President trump has said that that information is wrong. Its inaccurate. Its lies. So surely nobody thinks congress should ignore the president. Pass legislation that affects the president and the president team, based on information that the president says is wrong and lies. That cannot possibly be what the Supreme Court or this court thinks is appropriate. So yes, we have some information. Is it correct . Some of it, but the president says its wrong. So we need to find out what exactly is the situation. What exactly is the president s relationship with foreign countries, foreign companies, et cetera. What are the conflicts of interest . When he decided to do something with the trade agreement, was that influenced heavily by the fact that he has personal financial dealings . That is why we have disclosure. My colleague on this question on a brief, page 22 of our supplemental brief, its covered on pages two, eight, 19 and 38 of our supplemental requirements. So the reasons you were just giving that you need to figure out precisely what happened, why are those not more like Law Enforcement or exposure related reasonings, which specific court which the Supreme Court has said are inappropriate . Youre getting at the nittygritty of what happened is that usually what legislatures do, right . Legislative means enacting prospective rule for the future, not figuring out necessarily reconstructing the specific facts of whats happened in the past. So how do you think about that line which the Supreme Court says exists and that we have to be concerned with . Yes, your honor. Remember, that argument, you recognize that prior Panel Opinion recognized is a line and you rejected the argument that President Trump was making. Let me give you one most obvious example that comes to my mind. Congress did a massive investigation of 9 11. Obviously, a significant part of that was about Law Enforcement. What happened, why did lawenforcement not catch these people in advance, et cetera . What did they actually do . And what statute should be passed in the wake of that . There all sorts of legislation. Very often when you do know what happened in order to know what happened in this case it is there. It is not at all hypothetical. We know that President Trump, again, he has said these are wrong but he has had certain financial dealings with foreign governments and foreign companies. The president also has had dealings Foreign Policy and Foreign Trade dealings with these countries. We need to know what happened because we need to know whether to pass legislation to override determinations that he made. Clearly, its as you point out it would be legislating for the future but that includes, that cant include overwriting something that was done before. The gsa, we have got into this terrible situation now where we have the president is both the landlord and the lessee. So how did when you defined outcome is that what happened and why . And why did gsa allow that to happen . And so that we can decide, should we pass legislation and exactly what should that legislation say so that this doesnt happen again. Or if there is a second term, so that it gets in did. We can have a situation where, released we need to know, do have a situation where the president , or say secretary of state, is both the contractor and the contractee. Surely that is subject for congress to investigate. Let me say one more time, this president information is essential for that. Why is this different . Because of the president , we got this, of information, except, heres another key point, in the Clinton Administration where he provided tax returns, all sorts of financial information, but in two occasions they came out he was getting gifts towards the end of his administration and there were donations to the Library Upcoming president ial , library. Congress asked about those. President clinton, as all of his modern president precedence did, they all, he provided the information. Jimmy carter provide information, et cetera. All the president s have provided information. The only reason we are here as a Supreme Court recounts at the beginning of its opinion is this president has refused to cooperate at all, unlike all of the modern prior president s. Thats why you are here. So the situation is sui generis then a circumstantial legislation . Absolutely. Again, suppose we have a trade deal with the president decided to end or didnt end. Yes, we can pass legislation suppose, as i said gsa. , we can pass legislation to say the Inspector General for gsa shall henceforth every three months demand from any gsa contractor, which would therefore now included the president. Certain information. Or gsa shall make sure that better any time a government lessee attain public office, the contract shall end. We can provide that by legislation, right . So these are all things that Congress Needs to know as part of its oversight function in order to definitely lead to legislation. The last thing is emoluments. This court already ruled that the Supreme Court didnt touch , it so it is there already, but let me just point out. The constitution says that congress can approve emoluments. Well, foreign, not domestic. Well, so maybe Congress Wants to pass a statute that defines emoluments. And we know this is Something Congress is interested in. We have already done it but based on incomplete information. The house passed a bill already but it would be much better to pass the bill with full information. What exactly is the president getting from foreigners, from foreign governments will help us decide how to define emoluments, which the constitution seems to provide to congress. Any other . Any other questions . No. Ok. Thank you, mr. Letter. Thank you, just in rebuttal. One point under the cummings record the committee cannot satisfy the Supreme Courts the cummings memo that was attached to the subpoena has no specificity about the committees legislative goals. Many of those goals and once my friend just recounted to not even satisfy this court litmus test at a specified in the prior opinion. They are not laws directed at the president regulating president ial finances. To the extent the subpoena does pursue those types of law, it does not justify the significant step of involving the president. Those are basic policy judgments, cases like Senate Select safety do not need to get with the committee calls a detailed understanding of the president s Financial Statements. Would you agree that if congress is going to pass legislation that regulates the president , i dont meet the individual president , i just think the position of president of the office of the presidency, that Congress Needs to step carefully and draw lines carefully so it needs to walk a fine line there that it may not need to win regulating of the folks in the executive branch . Would you agree with that . Yes. Dont you need precise facts of what exactly the problem is to ensure you told that line to walk that line . I do not believe to determine whether you should require precise values instead of ranges and what is the matter how far back to disclosure laws should go. I do not believe you need what the committee called a detailed understanding of the extent and complexity of the president s finances. I believe that is still overstepping. They cant shoot in the dark right . , they cant make assumptions based in other executive branch officials. I assume youd say diverting the voting did understand the nature of this precise problem and target that with legislation because overshooting could have its own constitutional consequences. We do not want them to overshoot we do not want them to overshoot and we do think so understand the exact nature of the problem is important. Yes, your honor, and the maloney memo [inaudible] it describes the problem as glaring and obvious, words it uses in that memo. Its already pinpointed the but theres some problem there, right, theres plenty of smoke but we really consider it incumbent upon us to understand the source of the fire. Your honor, i think this directly answer your question. I think its important why there should be a subpoena directed to us which has never, never been issued or even suggested or even been in formal document request. Its because in the accommodation process to plan there are plenty of ways for us to Work Together and discuss how to frame legislation of one they dont need to ask your opinion on legislation. Thats up with the Supreme Court said. Im curious about your insistence that they needed to work more with the Trump Organization. The president really has not been very accommodating of the subpoena request in the white house or in other agencies. In fact, flatly forbidden any compliance whatsoever in some situations. Are you telling me that the issue here is that the president wanted was just ask the Trump Organization and everything would change that would be a , different accommodation in the form of maybe not complete, thats what accommodation is, but relevant disclosures that the Trump Organization with you would do what President Trump and the white house and agencies at his direction have not done in the accommodation process . To interest, first, we do have the dispute about how it is gone so far. My friend said that we provided nothing in response to the request. Documents she asked for documents. For information about the trump hotel and he got fire alarm testing, which is not the question. They dont have a memo that that says nothing has come forward, what they need to legislate in a careful way that you said is constitutionally required. Im asking a different question, i understand, i have written down that that is one of your factual disagreements with the maloney memorandum. I am asking a different question. Is there any basis or representation you would make as an officer of the court . That the accommodation in the forms of sharing, forms of information would be different from the Trump Organization, then it has been from President Trump, from the white house, and from federal agencies. We believe the direct request to could work out differently. I dont know if it could. Just a hypothetical. I dont have authority. I would say that there are obvious narrow alternatives, and asking to answer a question this way or this way . To actually verify information. As the basis for legislation. Our position is the president of the United States is the last place they should turn, not the first. You have your hand up. Mr. Letter, a chance to respond. The judge asked a factual question of mr. Morris that i have the answer to, the most factual question. You ask about resolutions and the relationship to house rules, the way the house amends its rules during the session by resolutions, the case involving voting by proxy, the house passed a resolution for the remainder of the time, a is the way that the house changed its words. Would you like an extra minute or two . We just ask that this be reversed. Ok. Ok. Announcer the talked about the response the proud boys our group in a larger white power activism. That is largely fringe right activism that is interested in resisting federal government power, advocating for secondment rights and gun possession, gun ownership rights. And also sometimes involves people who are outright white supremacists. Not everybody who identifies as antifa engages in violence. But pretty universally they do not disavow it. The view violence as an essential part of the movement, a legitimate response to fascism. Announcer tonight at 8 00 eastern on cspans q a. Announcer white house chief of staff mark meadows and House Speaker nancy pelosi were guests on cnns state of the union. They talked about the response to coronavirus and prospects for another relief package. Here is what we have to do. We are not going to control the pandemic. We are going to control the fact that we get vaccines, therapeutics. Why are we not going to control the pandemic . Because it is a contagious virus. Why not make efforts to contain it . We are making efforts to contain it. By running all over the country not wearing a mask . Let me just say this. Is what we need to do, is make sure that we have the proper mitigation factors, whether it is therapies or vaccines or treatments, to make sure that people do not die from this. It seems like they keep moving closer and closer. I know youre waiting for it on paper, but it seems like you are winning. It looks like all the things the white house is moving towards your position on, and it seems like you could take yes for an answer. As soon as they say this is it, in our negotiations, yes, that is the case. But then they come back and when it comes back, it is not always what we anticipated. So i am hoping tomorrow, monday, i sent over on friday the list of the concerns that we still had about what is the answer, what is the answer, what is the answer. My understanding is we will be reviewing that over the weekend and we will have some answers on monday. You are getting a lot of messages from democrats saying this is good enough, we need to say yes. Welcome to my world. That is not a lot of messages, although i respect each and every one of them. The fact is if we do not agree to the science to crush the violence, if they did what was in our bill, that science dictates that we do, then if we do that, we can lower the incidents of the virus in certain areas, open schools, open businesses and the rest. If we dont, we are just giving money to the president to spend any way he wants, and that has not been in furtherance of crushing the violence virus. Announcer monday the senate finishes debate and takes a final vote on the confirmation of judge Amy Coney Barrett to the u. S. Supreme court. Watch live coverage monday on cspan 2, stream or ondemand at cspan. Org, or listen live on the cspan radio app. That is what gives us the confidence to sit here and describe the first 10 seconds of the universe like we were there. It all started with a big bang. Is there a song in there . [laughter] ani would not give a report interview unless they read the book first. Book tvs inrs, depth hosted americas top authors for an indepth conversation with cspan viewers. Sunday, november 1 at noon eastern, join us for our live 20th anniversary author and a look back to memorable moments. The picture on the back, you remember that . No. What is in the book . Well, the book was an examination of life at yale. Announcer watch in depth sunday, november 1 live at noon eastern on cspan 2. Announcer next, President Trump delivers remarks at a Campaign Rally near manchester, new hampshire. He talked about his administrations economic policies, the coronavirus pandemic, and his political record in new hampshire, which was the first state he won in the 2016 republican president ial primaries. The latest polling average has the president running 11 points behind his democratic challenger joe biden in that state
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