Versus vance. Mr. Sekulow. No County District in the history has issued criminal process against the sitting president of the United States and for good reason. Accordingly the supremacy clause that beats any authority under the state law as to the president. The Second Circuit is wrong and shall be reversed and if not reversed, the decision weaponize is 2300 local djs and an overwhelming number of them are elected to office and are thereby accountable to their local constituencies. The decision would allow anyone to harass, distract and interfere with a sitting president. Subject to local prejudice that can influence prosecutorial decisions and at the same grand juries that can then utilize the process in the form of a subpoena targeting the president. This isnt mere speculation. It is precisely what has taken place in the case and with a subpoena that we challenge. In thand the argument we assertd that a subpoena didnt serve a legitimate legislative purpose and they were burdensome. Yet they copied almost verbatim the House Oversight Committee Subpoena with an additional 13 words to seek the president s tax returns. How revealing the exact same language utilized by two congressional committees would subsequently be copied by the County District attorney covering the exact same documents and sent to the exact same recipients get reportedly for two completely different reasons. Under article number two for the high scrutiny standard under nixon, the subpoena we challenge today cannot survive. As the Second Circuit concluded and the da represents, the president is being investigated for potential criminal violations in a state grand jury proceeding with the local issuing coercive criminal process against the president. This, he cannot do. Thank you, mr. Chief justice. You do not argue that the grand jury cannot investigate the president , do you ask we do not seek to have an injunction emboldened by the Vice President and the grand jury. Weve targeted that utilization here to the subpoena that is correct. In other words it is okay for the grand jury to investigate except it cant use the most effective device typically used for just a subpoena. Your theory would seem to go much further than resisting the subpoena and i dont know what yowhyyou dont resist the investigation in its entirety. Our position is the criminal process against the president , and that is what we are talking about before the court. Targeting the president it is a violation of the constitution and we do not seek to enforce against the grand jury investigating the situation with the president. Is why we were not persuaded that the distraction and that case meant in the case like clinton versus jones you argue that the proceedings are here. Clinton versus jones were in federal court and this was in state court. This is a criminal case it would raise different issues and separation of powers. Im wondering whether or not you can point us to some express language of the founding ordering the ratification process that provides for this. Well, theres a couple. There is a colloquy between the Vice President , ultimately Vice President adams and senator ellsworth when they talk about processing and took the position any process against the president would be constitutionally problematic. It would interfere in the president s responsibilities and as this court in the previous argument said the burdensome nature of this is categorical. You cant just look at the one subpoena. The potential for 2300, just 1 . 23 issuing a process. But the concern over interference from the founding and the responsibilities was discussed and that is why in the constitution there is a process to deal with it. Does it make a difference when the subpoena goes to a thirdparty . Certainly not here. Number one, the respondents are either forfeit or awaiting. They have conceded that they are seeking the president documents. These are the president documents. He is the real party in interest and he has the burden including review with his counsel over any existing privileges and with the documents like detail. We have said in the grand jury context. Every mans evidence faithful persons protected by privilege. They were not immune from the civil suits. They said that if the cas case m it would raise different issues. This court has long recognized that the president isnt to be treated as an ordinary citizen. Hes the only individual that is in the system so to our position is the constitution itself both in structure and text supports the position that the president would be temporarily immune from this activity going state proceeding while he is the president of the United States. Every mans evidence is food to the president. Its not that it excludes, but he isnt to be treated as an ordinary citizen and this is a temporary immunity. Its while the president is in office and that is required by the constitution. England v. Jones there might be a million contents of thousands who might bring lawsuits perhaps unfounded. I gather ordinarily any person that gets a subpoena can come in and say it is unduly burdensome. A doctor that is in the middle of an operation might be very different from a person that is a salesman an at all the factors you raise could come in under the title unduly burdensome so why not just go back. I will show you precisely how this is burdensome. Im going to spend time and effort working all these things out, figuring out what they mean, etc. And if he shows the undue burden, he wins and otherwise, not. That is true with every person. That is clinton v. Jones. Why not the same here. The hypothetical you gave i think proves the point by the time you are to prepare, review, analyze the greatest requests. To require the president of the United States as youve raised in your opinion and in clinton versus jones, that burden is being met just by us being here. But to require the president to have to respond to every single state District Attorney and he would hire a lawyer to list with the burdens are. That wouldnt take a lot of time. And then he wouldnt be burdened because you could go in and save the burdens are. And if you are right, you win that case. They say on the other side there are no burdens . Send it back and let them figure out what they are. For instance in this very case on the subpoena found on 118 and 119 of the petition appendix is a list of documents. To meet with the president of the United States. Could you imagine just for a moment, Justice Breyer, lets assume the president were to hire me, but im going to call the president of the United States today and say i know you are handling a pandemic right now for the United States, but i need to send a couple or two or three hours going over a subpoena of documents wanted by the new york County District attorney. Are there at least some circumstances in which the constitution would permit a local prosecutor to subpoena the records containing information about the president . The prosecutor has good reason to believe that the records contained information that isnt available for any other source about whether a thirdparty committed a crime as opposed to waiting until the end of the president s term would make the prosecution of the time impossible or at least very difficult. What you say that at least in that circumstance it would be permissible for the grand jury subpoena to be enforced . In the state Court Proceeding, the issue is of time and burden are still there. In u. S. V. Nixon, that is the case when the president was a witness and the documents were asked for and the court said it would be handed over. It was very clear the president was a witness and the attorney, the independent counsel specifically stated to the court he wasnt a target. So while it is a different case the same constitutional principle would be in play. Its a criminal process targeting. Was the answer that that would be permissible if the prosecutor were willing to say it is permissible and it woulit wouldraise the issue fore president to consider. It adds to the state Court Proceeding here and we think that even as a witness that raises serious issues im obviously a different case than this but serious issues nonetheless. Thank you, counsel. Justice sotomayor. Council, it seems that you are asking for a broad immunity Justice Thomas pointed out that is nowhere in the constitution and in fact the constitution protects against president ial interference with state criminal proceedings it doesnt allow the president to apply them for the state prosecutions or convictions. And yet i find it odd you want us to rule that there is essentially an absolute immunity from investigative powers at the height of the States Police power and that we would permit a civil damages case by a private litigant, which we do. Prosecutors have ethical obligations with respect to grand jury investigations to keep those investigations secr secret. Dont be presumed state courts and prosecutors act as they should and in good faith . Doesnt the president always havhas the opportunity to show t a particular subpoena in fact was issued . The president was given the opportunity here and an affidavit i understand was filed set forth the grounds for the investigation. Im not sure why he is entitled to more immunity for the private actress that he should be for public acts. Hes the president of the United States come he is a branch of the federal government. We give judicial and congressional offices immunity for access within their official capacity. If they dont come if judges sexually harass someone, weve said that dissent within judicial functions, they can be sued. If congress do the same thing, they can be sued. So, my question still comes you are asking for a broad immunity than anyone else gets. We are asking for a temporary do we have time for a brief answer . We are asking for temporary immunity and i would point out under the new york state law witnesses before the grand jury are not sworn to secrecy. They can state that they testified about the nature of the testimony was and i would also like to point out there are hundreds of members of the United States congress in 100 members of the United States senate and there is one president. Thank you. , mr. Secretary, decided that a number of times and made the point which we have made the president cannot be treated just like an ordinary citizen, but its also true indee indeed a fundamental precept of the Constitutional Order but a president isnt above the law. From the first day chief Justice Marshall told Thomas Jefferson he could be subpoenaed and examined as a witness and required to produce papers. So i guess going back to Justice Breyers question, why isnt the way to deal with these two things that the president is special or that the president is like an ordinary citizen and that hes subject to the law is to say the president can make these usual objections that a recipient can make about harassment or that burden and the court in reviewing those of course should take seriously the president s objections and treat them with a certain kind of sensitivity and respect due to somebody that is a branch of government. Why isnt it the right way to do with . I think the case here is a perfect example. Example. The District Attorney copied to the House Oversight committee and ways and Means Committee verbatim. We were just discussing indicates the nature of that burden for the council the president hiring counsel for each time he could be subpoenaed as a witness or in this particular case as a target and raise a serious impact on the president article two functions so we think the categorical approach, and its very specific. State process as to targeting the president s documents in a criminal proceeding should be prohibited. Justice gorsuch. Council, i would like to return to the question of clinton versus jones and how he would have us distinguish back. Yes, it took place in federal court, that it was a civil case and as it has been pointed out, others, there could have been multiple versions of that and multiple different districts across the country. What is different about that and how do we avoid the conclusion that president wasnt subject to some special immunity. The nature of the case that we are dealing with here is not in a vacuum itself. There are other cases the president is dealing with the ae same time. So the situation we have multiple litigation going on including with the new york attorneattorney general, so i te supremacy clause here is pronounced as the court eluded to in clinton v. Jones for that very reason. This idea that the local prejudice would impact the president. So the idea that we would wait until there are more of these, we are already here on the three or four subpoenas involving multiple subpoenas much of which govern the same documentation. So, i think that in fact, justice gorsuch, it proves the point we are here because the court asked for documents now the District Attorney is asking for. So, we are seeing that in real time, the nature of what is happening here. How is this more burdensome than what took place in clinton versus jones . I guess im not sure i understand. The big thing is between the defendant and the civil case and the principal in a criminal case hereby state district let me stop you there. There is the deposition of the president while he was serving. Here they are seeking records from third parties. Tha they are his records from third parties, justice gorsuch. Its the agent custodian of the president s tax returns on the president s statement of financial conditions so these are the president s documents coming up with us to stop them from seeking the deposition of the president or for that matter asking the president to appear before the grand jury because if the official versus the unofficial is the deciding factor in our view is the process here interferes with the president of official duty that is going to be an unofficial distinction put in place, then what stops the local District Attorney from having the president testify, having president tried . Just assume there is one criminal investigation, that is it in the rationale for a different role. Is not that its a different role because in this case because assume in the context of estate proceeding, your article two concerns in the supremacy clause issues as the court alluded to in clinton versus jones or create the issues of concern about local prejudice. But the criminal nature of it creates a burden very distinct from a civil case. To be clear. The idea that you are the subject or target of a criminal case being brought against you is very different than of civil suit were at the end of the date a result of monetary damages, not a loss of liberty. So theres a big distinction between the civil case in a criminal case in that regard, i think the impacts the standard upon which this court should be looking at the president s temporary meaning, were talking about stopping a process, targeting the president , the subpoena targeting the president , thats what were talking about here, it is operating thats our concern. The other side says the position youre articulating is about mark consistent then with clinton versus joan which the majority which is private civil damages action against a sitting president may not issue orders that consistently distracted president from its official duties. Its pointed out that the language is in the majority opinion, what do you think about how we should assess that. Civil discovery versus criminal process are two distinct processes. And in the civil context in the civil proceeding, we have the federal rules of federal procedure in the federal court that govern how the process goes forward and federal judges can take integrate his consideration in dealing with the president , this is estate proceeding, initiated by the local District Attorney against a sitting president of the United States, our concern here is the nature of the proceeding itself is why we view categorically that a subpoena targeting the president and his records which violate. How do you do was statute of limitations issues. Statute of limitation issues are decided under new york state law and under new york state law there would be procedures that can be utilized if in fact the d. A. Were to elect and discard a process like that and if there were be action. Thank you counsel. Thank you mr. Chief justice. General francisco. Mr. Chief justice maia appease the court. A local prosecutor should have to show he really needs a president s personal records to subpoena them for two reasons. First as the court suggested in clinton against jones, state proceedings can pose a greater threat to the presidency. The 2300 prosecutors across the country necessarily place more often since on local interest the National Ones, specialneeds standard ensures that the federal court balancer prosecutors local need for information against National Interest including the president s need to do his job. Second, ordinary grand jury rules are not designed to protect article two interest, thats why in nixon, the court told the federal prosecutor had to show a demonstrated specific need for the information sought. The local prosecutor should at least be required to meet the same standards as the court has repeatedly said, in no case of this kind would a court be required to proceed against the president as against an ordinary citizen. And here the District Attorney hasnt tried to meet the special needs standard. Francisco we just heard mr. Secular argue in favor of an absolute standard, no circumstances no how. Your position as you say at a minimum of the special needs test must be met, mr. Secular is representing mr. Trump you representing the United States coming arguing for more flexible standard so what was wrong with mr. Trumps position. Your honor, i actually think mr. Secular makes a very strong argument on the immunity issue, we just dont think its one of the court needs to address at least until the prosecutor argues an attempt to meet the special needs standard, here since the prosecutor has argued and is not arguing before this court that he meets a specialneeds stander, theres no reason for the court to address the broader immunity question and is the courts ordinary processes to try to avoid those broader more difficult questions when possible, here we think the specialneeds standard would fully resolve this case at this stage of the proceeding. In a typical case, with adequate allegation to say that the standards implicated, you would say that it goes before the court and the court will examine whether or not the criteria you talk about which i gather as the test under nixon are met. Under mr. Secular standard, would not immediately go before the court, he was looking from a ruling from us saying hes immune so the court would have no business addressing such a case, thats a very significant difference. Your honor in both instances, the argument would be available and make the argument to an article to federal court under our argument if the court found that the prosecutor had not met the specialneeds standard, it would not need to address the broader immunity question, if it did find that the District Attorney met the specialneeds standard, it would have to address the broader immunity question and always saying, unless until the specialneeds issue is addressed at the threshold, theres no need to address the broader immunity question in this case. Thank you counsel, Justice Thomas. Yes general francisco, you mentioned the level of threat to the president or burden on the president , how do we determine when its too much . Your honor, we think there are a couple of things that you can take into account, the fact that were in state court is quite significant, local prosecutors are necessarily going to put more emphasis on local interest the national, simply reflects the manner in which they rise to office through elections by local relatively homogenous political communities and in new york state i would also add that the Trial Court Judges are elected in a similar way. So there you burden got the risk of local prejudice and what the specialneeds standard does is that it ensures there is a federal court thats available to balance the local interest against the National Ones including the president s need to do his job, secondly, it also has to do the ordinary grand jury rules that would apply to a local prosecutor exercising his authority, those rules were not designed to and not sufficient to protect article two interest since ordinary grand jury rules, District Attorney never has to make a particular rise showing of needs instead the burden is on the witness to show that the subpoena can have no conceivable relevance to any plausible subject of an investigation. Now that is a perfectly appropriate standard in the ordinary case but the reason why nixon applied the specialneeds standard above and beyond the ordinary rules of criminal procedure was because the court recognized that the president is the sole person in whom all article two powers are invested, hes entitled to a measure of protection above and beyond the ordinary rule in the specialneeds standard is one of those measures to protect, to put back to Justice Breyers very first concur in clinton against jones, i think Justice Breyer rejected that this court would need to develop special protectives procedures precisely for the president in the context of litigation like this. Justice ginsburg. You said the state subordinate governance in their subject to the supremacy clause, you dont give any credit at all to the tenth amendment and the reserve powers of the state, that is one question that i have. And as far as the impact of the president is concerned, i think there is no case more dramatic than the nixon tapes, devastating impact on the president , he resigned from office but yet that was okay, so i really dont get it. Your honor. Yes. Your honor in terms of the tenth amendment, all were saying is article two best all executive power in a single president of the United States, he is the sole person in whom all executive power vested so that necessarily implies that there are limits on what others can do to burden him and his ability to do his job. Although the specialneeds standards does is ensure that a prosecutor really needs the president s information before he can enforce a subpoena because if he cant even show that he really needs information, hes necessarily imposing an undue burden on the president creating a serious risk of harassment and if you multiply that by 2300 prosecutors across the country, i think the risk to the presidency is quite obvious. In terms of the nixon case, we are actually arguing for the same standard that the court applied in the nixon case, the specialneeds standard, were just saying that the local prosecutor to be at a minimum to be required to meet the same standard that the federal prosecutor that nixon had to meet and show that he really does need the information that hes seeking, again since he doesnt its unnecessarily the grand jury is an investigatory body, it does not make the outset specific charging decisions while the investigation is underway, it investigates in order to determine that there be specific charging decision, you would have them make decisions before they investigate and that seems to be backward. Your honor respectfully know i would simply urge that you apply the same standard that judge applied in the case which was a grand jury subpoena issued to the white house where she concluded properly interview that nixons specialneeds standard autoplay to grand jury subpoenas, if not you dont have to make a charging decision but you do have to show demonstrated specific particularized need for the information pursuant to which you are issuing the grand jury subpoena. Justice breyer. Thank you. I think the nixon tape case has one thing for you and one thing against you, the one thing against you was a case that executive privilege was asserted, what is for you, i think it might be more relevant is in that case, the court said there has been first awaiting of the burdensome nature et cetera, a lot of other things in that in the lower courts that have decided that it is appropriate to go forward, what i dont see is why you need a special standard more than that here, the ordinary standard. You would need a decision by us that is reviewable in federal court, i understand that. But i dont see why you have to go beyond that with the things youre talking about would be taken into account. Your honor, youre absolutely correct, at a minimum we would need federal court review and in that regard i would note that the District Attorney here agrees theres article two limits on what he can do and that those article two limits are in federal court, but respectfully, i would suggest that nixon stands for more than simply some kind of way no ventures, he applies a specialneeds standard and instead that the prosecutor did in fact have to show a particularized need for the information, that is all that we are suggesting ought to apply. Was not an assertion of executive privilege. Excuse me your honor. Was not in a context of an assertion of the president of executive privilege. Yes it was but litigation about private conduct was burdensome and as the court recognized in clinton against jones they might need more production in state court then he gets in federal court precisely because of the risk of local prejudiced and thats where the court reserved judgment on the question. I think when you put those two things together, it does make entirely appropriate to hold a local prosecutor in state court to the same standard as a federal prosecutor in the nixon case. Indeed, even if you were to take the District Attorneys own case specific test, i think you would need the specialneeds standard, after all we dont typically get discovery into grand jury proceeding, the only way to assess it at the front and whether the prosecutor is issuing and unduly burdensome to subpoena or issuing that is to require some kind of showing of special needs, after all. Justice alito, can you explain in more specific terms how you think the showing of special need would be carried out in District Court. I assume that the prosecutor would have to make some kind would have to reveal what was being investigated and why this particular information was needed for or essential for the investigation, without be done or be reviewed by the judge or be available to whoever the sitting president is to object to that, to review and object to it. Your honor, its difficult to answer that question in a vacuum, i think it was very much depending on a particular case, let me make my best stab at it. I think in order to have meaningful judicial review, you would need the prosecutor to make public as much as responsibly be made public so that the president would have an opportunity in the president s lawyers would have an opportunity to make their case on a particular fact. If there is a certain amount of evidence that really cannot responsibly be made public, then i think it would be appropriate to consider x partake receiving or filing under field, and all events we think that that is a type of assessment that needs to be made when youre talking about subpoenas unprecedented subpoenas like this one that are from state and local prosecutors targeting the president of the United States, the other place i would point to, is judges opinion for the d. C. Circuit in the fields case where she does walk there and some amount of detail and unpack how the specialneeds standard applies to grand jury subpoenas. How essential must the information be in order to meet the specialneeds standard, doesnt have to be absolutely indispensable, not available from any other source from any conceivable means or simply useful. Your honor, its probably somewhere in between those two things, i think it has to be critical to the charging decisions so it can just be marginally useful or nearly duplicative or interesting to a side issue, it does have to be critical to the charging decision, if the information is readily available i dont see how a prosecutor can meet the specialneeds standard, and if the information he has, he currently does have a sufficient to make a charging decision, i dont think how we can meet the specialneeds standard so i guess i would put it somewhere justice. General theres always danger in taking a doctor and adopted for one set of needs, that has to do with needs that are balancing what is clearly recognized as an executive privilege versus the need for the preceding at issue, and translating into a situation that is totally different where were not talking about a claim of executive privilege and were not talking of executive immunity, were talking about private activities that predated the president s tenure. Why are we using all the transplanted language and why do we get to a standard that takes care of what youre worried about which is harassment and interference and simply ask whether the investigation is based on credible suspicion of criminal activity and whether the subpoena is reasonably calculated to advance the investigation. A standard that looks to whether there is a good faith basis for the state prosecutors actions and whether the subpoena is reasonable in its scope and burdens, i dont understand why that standard is an adequate, especially for proceeding that involves secrecy like a grand jury subpoena. For two reasons, first, for the reason that i think Justice Breyer did explain in clinton against jones, even litigation about private conduct can be quite burdensome and is particularly so when youre talking about private conduct that is being litigated in state Court Pursuant and procedures. I think thats what he correctly predicted that this court would need in future cases to develop special protective procedures precisely in this context and secondly i think the special protective procedure that we are proposing is necessary even under your honor general approach after all why would a prosecutor take the unprecedented step of issuing a subpoena to the president of the United States for personal records from a local prosecutor if he cant even show that he really needs the information that hes seeking, if he cant make that showing i think theres a pretty good reason to be a little bit suspicious. Justice kagan. General, a couple of times and in response to Justice Breyer, you have explained why we should use the standard from the executive privilege cases by saying litigation about private conduct is also burdensome. But the point about executive privilege cases, its not that its burdensome, the colonel focal factor is the way the interest that a president has in communicating with advisors on official matters often about national security, often about military matters in the need for confidentiality and that, that is why the nixon standard was developed, not because of generalized ideas about burdensomeness which can be dealt with in other ways. So again, white show that standard be used here . Respectfully, i think their parallel interest, executive privilege, your right is meant to protect the confidentiality of communications the article more generally is to protect the president from being unduly burden in his ability to carry out his responsibility and i think that is particularly necessary when youre talking about state Court Proceedings by the many, many 2300 prosecutors across the country who again are more responsive to local political constituencies and local interest the national on ones. The heightened standard in order to take account of burdensomeness, burdensomeness is something that can be addressed in any subpoena and im sure that courts when he gets to the president and the spectral responsibility of the president will address those interest with respect with sensitivity especially if we tell them so, why would you need the heightened standard that is meant to protect confidential communication about official government business. For two reasons, first, under the ordinary grand jury rule, the only question as to burdensomeness is whether the subpoena has any conceivable relevance to any possible subject of investigation and therefore is undoing burdensome and secondly i think the judgment has to be made by federal courts, not state courts because state courts like local prosecutors are going to be more responsive to local interest, after all in new york state file court judges like the District Attorney are elected in partisan elections, all were saying is this is the type of assessment that needs to be made in federal court in the most appropriate and easy to apply standard is a standard that you are really been applying for 50 years under the nixon case. Justice court should. I would like to go a little further, how the standard that youre proposing will play out in practice, i would suppose that you have a local prosecutor saying im investigating a tax and trade in in the best and only evidence of that potential infraction of the tax records in the possession of the potential defendant. , why would not meet the special heightened test that you propose in every case, if it does, what if we achieved. Your honor, i think it would depend on who the potential defendant is, if the potential defendant is the president of the United States, here the District Attorney does not contest the fact that he cannot indict the president of the United States until after he leaves office so he would not be able to show that he needs the information now in order to indict the president of the United States. Of course if the potential defendant is somebody else, then it might start looking closer to the nixon case itself or the special counsel was investigating a thirdparty, i think that would in fact be a relevant consideration under the specialneeds standard. I guess i did not follow that last portion. Lets say infraction by corporation or some entity in the prosecutors going to say we need these materials in order to determine whether there is an infraction, why wouldnt that qualify under your standard. I think there would certainly be a relevant thing to take into account and if they actually met the specialneeds with respect to the information and found that it was really necessary in order to bring charges against the thirdparty, he may well meet the specialneeds standard and then youd have to address the broader immunity questions. , showing a special need is required under your standard, the Prosecutor Says i have some reasonable suspicion that theres a tax efficiency by some entity, is not enough. Your honor, i think its more than that, i think you have to show that the information he is speaking is critical to him taking a charging decision but he cant get the information from somewhere else in the information he does have is insufficient, its the same standard that the Court Applies in nixon, the d. C. Circuit applied in the henry fields case, its not like its a hardened lined rule but it is and in the minister bowl role the courts have been applying for some 50 years now. Thank you counsel, justice, no. Thank you mr. Chief justice, good afternoon general francis francisco. I want to follow up on Justice Thomas and Justice Kagan in 0 in on what the article to interest is before we talk about what is standard. I think it Justice Breyers concurrence in clinton against jones, he referred to the interest in time and energy, distraction which he drew from nixon versus fitzgerald, the different nixon case as an independent article to interest that is distinct from distribution of official decisionmaking which would be an executive privilege kind of interest. Without the article to interest you are zeroing in on or is it something else. Respectively, i think both of them and as i read Justice Breyers opinion, he likewise understood it to be both of them, the whole idea is the article to vest all power in a Single Person in that necessarily means that others cannot unnecessarily hobble or debilitate that person in its ability to responsibly care about his duty. So the whole point of the specialneeds standard is to ensure that others including prosecutors cant unnecessarily impede the president in carrying out his responsibilities so item minimum, they have to show that they really need the information that they are seeking is says if you have 2300 prosecutors that are unnecessarily hitting the president was subpoenas and none of them can show that they really need that information, youre necessarily going to be undermining the president s ability to effectively carry out the articles of duties that the constitution entrusted him and him alone on behalf of the entire country. Thank you counsel. Mr. Dunn. Mr. Chief justice, there are two principles of issue in this case, one is a central role of the president and functioning of the National Government and the need to avoid interfering with the president s ability to carry out those important duties. The other principal is under our constitution when a president acts as a private individual, here she has responsibilities like every other citizen including compliance with Legal Process in particular, this court has long held that american president s are not above having to provide evidence in response to a Law Enforcement inquiry, were mindful as a state actor our office cannot investigate a president for any official acts and we cannot prosecutor president while in office. But here were talking about a subpoena sent to a third party concerning private conduct by a variety of individuals and businesses, yes one is a president but no ones been targeted or charged with anything, there is no claim of official acts or executive privilege, at the courts below found the subpoena poses no article to burden whatsoever and was not born of a political analyst or intent to harass, it was funded by public reports that certain business transactions in her jurisdiction were possibly illegal given those allegations are office would have been remiss not to followup, in response the president asked the court to overturn 200 years of precedent by declaring he is a bleak immunity while in office from any legal inquiry, even for his prior private acts, even though that could result in a permanent immunity for him and the other parties. If the statue of limitation expires, even though it can prevent the discovery of evidence that can exonerate the individuals. Finally, his novel claim also asked the court to presume that state actors have a reckless media that will cause them to relentlessly harass president s is staying federal courts will allow prosecutors to do so. Of course theres no historical support for this claim which flies in the face of federalism, and floodgates have been over for generations and theres never been a flood, the only thing new is a subpoena comes from the state but as in the constitutional burden, that should not leave the court to abandon the long standing respect for proceeding. Thank you counsel, weve had the cases this morning in this case and there are in many respects very similar in the case of the subpoena itself, they are identical. I think in other respects are quite different, the separation of powers case this morning involve entities in an ongoing relationship, the house and the president and issues of the sort come up with some regularity, theres disputes between the white house and congress over documents and almost always they work out because each of the branches have authorities and powers that affect each other, if the senate asked for documents from the white house and the white house does not give them in the senate says were going to take her time confirming your nominee and back and forth, with respect to local prosecutors you dont have the ongoing relationship. So the possibility of working something out is far less evident in a few doing that the states its a little more difficult because theres not an ongoing relationship. Shouldnt there be a higher standard before we permit the District Attorney from around the country but theres also more than the two houses of congress, 2300 of them, shouldnt there be a higher standard than in the case of the separation of powers dispute. Your honor the answer to that is yes, putting aside its relationship or not to the separation of powers analysis, i like to address the d. O. J. Proposed showing standard because we see let me put it this way, theres three reasons why the d. O. J. Proposal does not work in a number of questions in the last argument touched on some of the concepts if i might, first, one problem the approach that there suggesting, let me reverse the courts approach to factfinding in these cases in a way that i think would harm the grand jury process which i explained, again we agreed there should be heightened showing requirement but my point only after president has 30 established an actual article to a burden, otherwise theres nothing for a court to weigh in the balancing of article two interest against the need for Legal Process and not balancing and sequencing was essential in nixon and clinton cases. Can you articulate precisely what standard you think should apply in your case and what sense is it more rigorous that it would apply in the dispute between the white house and congress. Yes, we believe that a prosecutor, if theres been an affirmative showing by a president of an article to burden and of course the courts below held there has not been such a showing, in a different case there was a showing made, we believe a prosecutor should be required to show one and objective basis for the investigation into a reasonable probability to request relevant information. We think language right that would be more consistent with past cases of the court and with the reality that a grand jury investigation. And frankly the courts have found that we met the standard here and the problem is alternative of requiring the state prosecutor to get permission first from a federal judge for any request relating to the Business Activities would undermine this courts prior ruling like the one in our enterprises, the grand jury should not be burdened by procedural challenges and delays because of the confidential process and not adversarial proceeding in the d. O. J. Just ignores that. Justice thomas. Thank you mr. Chief justice. Mr. Dunn, you are about to say how d. O. J. Approach would harm the grand jury process, would you finish that. Yes, i was just addressing that Justice Thomas, to require us in any given case to run to across the street in the federal court and say by the way we have an investigation underway, it happens to touch on a president s prior business transaction in which he and others were involved in and wed like to get permission to send the subpoena and for records that are in the possession of a president or the president agents like his Accounting Firm, it completely ends the way the grand jury process is up to work. If i might, the second big problem with the d. O. J. Analysis is that the language that they chose does not work, country to what i just set out because it only applies to the context of a trial subpoena, calls for stringent showing that the request is relevant the central issues and trading decisions, that language does not apply in the context of the grand jury window charging decision has been made, thats why the formulation that we suggested would be more consistent with what is needed in a grand jury context, again we think its unnecessary to apply in our case because a theres already been a finding of no article to burden and be we already met the standard by the District Court fighting that are investigation is wellfounded and brought in good faith. What limits are grand jury process in new york. The limits are basically the federal court in most other states, the recipient of a subpoena who has a basis to argue privilege or burden of some sort has the president did here to going to court and make those factual arguments that either it should be quashed or constrained in some fashion, there is a grand jury judge who supervises all grand jurys and their activities and is always available here, the more important point is obviously given the decision of the court of appeals and below this case and to address the concern in the footnote and clinton, at this point is excluded that a president in particular who has a concern about this impact at article two duties not always has the ability to go to a federal court and not the state court which was the main concern in the footnote and clinton. What if you thought as the president said was impossible for him to do his job as opposed to being burden, would we have a role to limit or somehow in the grand jury process. Absolutely your honor, i think thats the point of the case specific analysis, gives a court in a federal court to hear a concern like that expressed in the for concern is somehow the shots my office down or is a real burden or speculative mental distraction claim, then yes, the courts are empowered to impose on right variety of limitations including if necessary to shut an investigation not or shadow subpoena or litigation, thats the beauty of the courts prior decision in nixon and clinton and others which have decided to apply the case specific analysis and rejected the notion that that is treated with a categorical prophylactic rule, that is not appropriate and is also case specific. Thank you. Justice ginsburg. The principal objections have been raised in when youre dealing with federal prosecution controlled by the attorney general but here you have 2300 District Attorneys, each with grand jury subpoena power so the control exist in federal court in the attorney general at the home and no one controlling all of these District Attorneys. I understand your honor, what that gets to is a consistent argument here about the parade of portables if you will, if i address that, think their summer answers to that concern. First of all theres no basis in history for this apocalyptic prediction, the same claim was rejected in nixon and clinton and that was decades ago and there is not been a flood of subpoenas or litigations or prosecutions of president s by state or federal prosecutors. Second, this notion that theres 2300 prosecutors out there riding with her subpoena pass open, there is no basis to think that an army of local prosecutors like that would even have jurisdiction over a president especially for private conduct in the first place. Here new york city has a particular connection to the Trump Organization as a financial transaction because its headquartered here, its not likely that many states much less 2300 counties, whatever have that connection to private conduct, third i think is Justice Ginsburg you mentioned in the last argument, theres a view that there is a reckless mania by local prosecutors contradicts this courts longstanding presumption in favor of regularity indifference to stay proceedings. Enter finish off, the limitation that youre asking about really comes in the form of the case specific showing that past cases from this court have established because if there is a concern about a behavioral local prosecutor, any president over the decades can run now not just into state court which clinton thought could be problematic but they went into federal court and raise the claim that the president has raised here, that the limitation. Thank you. Justice breyer. Thank you i agree with you that the two basic principles that you set at the outcome are there, every mans evidence versus the constitutional statement of the president is the executive article two, then they conflict justice in the first place in the first case in the power of congress, article one an article two conflict. I dont think they conflict but yes their intention. All right, in a possible solution you say no absolute rule but just send it to the ordinary system for needs versus the burdens in every side has to say what they are and then have that review in federal court and because of the nature of and make a list and an opinion of the kinds of things that might not be or might be relevant depending on the case and eventually with the president , we might review it. All that would take time, the time itself will be discouraging prosecutors to do this which might be good. Implying itself would encourage house congress, president to work things out in a nonjudicial way. I dont put that, i want to know your reaction. Your honor what youre describing is exactly what this court held in clinton and its exactly friendly what is happened in this case which is yes, in this case the president decided to pursue his claim of immunity in federal court versus state court which is fine and available in the future to all president s but i think that the fact that is what should happen in the ordinary course in which can happen in ordinary course is a solution in the limiting principles because it does make it clear that there is a remedy and discourages i wouldve thought bad faith impulses by any state or local prosecutor who might harbor such an impulse and provides an outlet to make sure they cant get out of control. Again the beauty of the analysis, i dont think they lend themselves to categorical prophylactic rules and thats been the approach from day one. Thank you. Justice alito. If i understand your proposed standard, there would be available review in federal court and the prosecutor would have to show an objective basis for the subpoena and irrelevant of the subpoena to the investigation, is that correct. Basically, i said point to was a reasonable probability that would yield relevant information but thats a conflict. Reasonable probability, what would be our objection to a demanding more from standard, the prosecutor would have to show that the information cannot be obtained from another source or it would be very difficult to obtain it from another source in the information unless the information is obtained right now as opposed to the end of a president s term, there would be some serious prejudice to the investigation. Your honor i dont think that those concepts are foreign to the standard that articulated, i think the relevant in fact to the objective basis and relevance points. Here for example, again the court below, the District Court in particular heard our explanations and including the fact that the reason why we went to mays art is not to do a runaround negotiation with the president s lawyers, its because masers of the outside of the Accounting Firm as far as we can tell is only repository of what might be the most Important Documents an investigation like this which is not just the tax returns but the surrounding accounting materials and workpapers et cetera which shed light on a good faith for the transaction. My short answer, im sorry, i think those concepts would be fine and not burdensome in the context of the standard that i set forth. Can i ask you one other thing, do you think the adjudication of this and all cases of a similar nature would dependent anyway on state law and practice regarding grand jury secrecy, the federal court are of course very strict, states have different roles, suppose particular states imposes no restriction on the revelation by a member of the grand jury and perhaps by the prosecutor of the information that is applied in compliance with the subpoena. Im not aware of any other states having that kind of locks or nonexisting secrecy role, i can assure the court in new york state are grand jury secrecy laws are under the federal system. But putting that aside, if in fact the fact pattern presents to judge the prospect that the information in fact will become public in the president were to persuade a judge that the publication of the documents had issue with themselves impose article to burden or other interference with the executive duties in the given state, i suppose that would be part of the case specific analysis that the court could understand and take into account in deciding whether there should be some limitation or even a caution of the subpoena itself, thats part of the case specific analysis. We both know that prosecutore prosecutors who leak all sorts of information including grand jury information but all source of media including specifically the new york times, if they were showing that that was a risk, that would have a bearing on this . Your honor, its hard for me im not aware of any real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy, yes in all different kinds and offices there are at times leaks of status of cases and that kind of thing but im not aware and are grand jury secrecy rules really prevent prosecutors i believe from actually turning over confidential grand jury secrecy materials. Youre not aware of this ever happening, your office has never requested by media and the new york city area to disclose confidential investigative information . They ask all the time and the answer is consistently no, as far as i can represent, theres a distinction between people commenting to reporters all the time off the record versus turning over actual materials like the luminous tax returns or other sensitive documents that have been gathered and which are covered by grand jury secrecy. That is what i dont see happening here and i think history supports top view. Does not include the burden of harassment, the burden of using subpoenas for political purposes. Yes i would certainly include that and theres been an express finding below that the investigation was wellfounded after there was no harassment or bad faith in bringing of the subpoena. Justice. Counsel, did i understand youre unsure to Justice Alito that you are in agreement with the sg that we should impose the height need standard of special needs standard. , no your honor, i think were calling it the height and showing standard in the d. O. J. To height need standard, i think what im articulating is a very different standard in terms of the actual language to be looked at and imposed again. If you can counsel, i want to be very precise, if your standard includes what the height need standard has, why not call it what it is, height need, there has to be a reason you think we shouldnt call it that and i dont know that i understand what difference. Im sorry, the concern i have with the d. O. J. Language is again calling for stringent showing that the subpoena request directly relevant to central issues at trial and other concepts like that. What im trying to propose is something which is not so strict or limited to charging or trial related concepts which will be workable in the context of her drink enter grand jury subpoena, whatever their standard, i want to stress that i believe our office has met the standard even under the d. O. J. Proposal because of the findings by the District Court. Tell me why the heightened standard would interfere with the grand jury process. I think your honor, among other things, the d. O. J. Proposed application of its standard, if you read its briefs would confer the immunity that the president is seeking, what they say since you can date while in office, you dont need the documen document while in o, thats an outcome of what would apply in every case, no subpoena capasso test because they basically say you have to wait until shes out of office before gathering information because you dont need in the meantime. Their definition of height need says you dont need it while theyre in office but thats not workable here. Why not. Obviously your honor if you were to wait until a president was out of office in a situation like this, first it would risk the loss of evidence, the memories and the ability of witnesses which is why the d. O. J. Memo specifically contemplated that a president could be subject to grand jury while in office to avoid losing the evidence, secondly equally important, no one should forget that we have an investigation that is looking at other people and businesses in waiting like that would benefit those of the participants and they can end up above the law but the limitations period expires, delay here is the same as absolute immunity and absolute permanent immunity for the president and others if the statue of limitations expires, thats a problem with delay. The other side says the statute would be told against the president , youre right it would be told against other people who may or may not be committed crimes and he may or may not be a part of. Correct. Correct, thats important for the third parties but its to address our friend on the other side, about the tolling, im not aware in state law of any doctrine of implied tolling that would apply here to protect the states interest in investigating and prosecuting if necessary down the road, i dont know where that concept come from but its ever been a ticket later by this court, theres no act of congress which permits that tolling insofar as the statue limitations is a big concern, frankly, weve already lost nine months of time in this investigation due to the lawsuit, again every minute that goes by is basically without even a decision of merits granting the same kind of temporary absolute immunity that the president is seeking. Justice kagan. You have been talking about how to analyze these burdens on a case specific way, the burdens of both in terms of the president s time and in terms of any possibility of harassment of the use of a subpoena for political purposes, mr. Secular said the burdensome nature of the subpoenas is categorical and i take him to mean that any subpoena interferes with the president s responsibilities or undermines the president and his handling of the hoppers. What is the answer to that . Your honor man make three points, i think the president cant realistically be shielded from every private distraction including forms of Legal Process especially in our modern age, thats right up to court to evaluate and protect the president depending on the circumstances on a casebycase basis, secondly here the possible mental distraction is completely speculative, its based on the notion that the president might be worried and distracted of where the investigation might lead someday, its not based on article two burden or interference of the court asking president clinton to demonstrate in clinton b jones. Third, that is a concern i think its wrong to say the categorical rule would provide comfort to distractible president like that, for example, nobody suggest that we should be barred from continuing to investigate the president s prior colleagues, if we gather documents from them that reflect past communications with him while he was ceo, we supposed to be stopped because it could create a fear that the investigation of others might lead him to be accused of something someday, my point is that the speculative stress standard is not appropriate basis for bright line. Thats were the case specific approach is more appropriate. Speculative mental distress how does that mean political undermining. Thats beyond the can of our office and again, the District Court found there was no bad faith intended by virtue of our subpoena, 30 been determined that there is no intent to undermine. I dont know how a court can evaluate that and im not sure that would be appropriate. Mr. Secular suggest that youve shown your bad faith by taking the language of the House Oversight committees subpoena. Yes, your honor, we try to address that, the simple fact is that in 2018 when our investigation started and thereafter, as we spelled out, there were a series of Public Disclosures in the press about possibly the legal transaction involving the taxes and other financial, at the time the house subpoenas, it was clear that both our office and the house committees were looking at the same public allegations in that regard, in a situation like that once a house subpoena became public is not unusual for an office like ours to model our subpoena language on that which is already been made public from a different source when its going to the same recipient, it makes it easier on the recipient the process, there is no communication between our office and the house of all theres nothing sinister about. Thank you. Justice. I would like to return with Justice Alito, on uncertain what the daylight is between the tester proposing in the tester general has suggested. It seems like both the you agree that these questions should be resolved in federal court and you suggested that the prosecutor should have to be demonstrated objective for the investigation and that theres a least a reasonable probably that the information would be helpful to the investigation but it cant be obtained elsewhere and is needed now rather than at the end of the president s term because of some things that might take place in between. As i understand you suggested that the general think they should be immunity until the end of the term and the District Attorney has to sure why theres a need for the president s records now rather than at the end of the term. I understood your discussion to agree that would be relevant consideration, what am i missi missing. Your honor putting aside the language differences were to tried to highlight the most import distinction is a trying to know on the house side, the sequencing of the showing that needs to be made because what d. O. J. Is proposing that i understand is that in the first instance it has to be the prosecutor who goes to federal court in this instance and makes an affirmative showing that the standard hasnt met and theres an objective basis and it can be obtained elsewhere, et cetera and only after showing has been made by the prosecutor according to d. O. J. The urge of the president to show article two burden and that put me backwards with nixon and clinton and i think that is the president of the moving party as here to be required to make a showing as any other litigant would be the case and we were talking about purely private conduct to just explain why this request impacts not just on a need to gather documents which is not the case here but on actual article two burden and winds that showing has been made should i think the burden shifts to the prosecution consistent with past cases by the court to explain why nonetheless is Still Necessary to permit the court at that point, to conduct the balancing of apples and apples in terms of coming to the right conclusion in the specific case. So my correct in thinking that you agree that the form should be federal court, you agree on all the relevant considerations. Even frankly the doj standad the fact is weve already met that test. I know you think you win no matter what. We have to write a rule of some value Going Forward that isnt just about what the president thinks about presidency and im just trying to understand who bears the burden of proof. I think it is the burden and the difference in language which i pointed out to justice sotomayor. The differences or imported because i dont think the language works in the grand jury investigation. Thank you, chief justice and good afternoon. On the last point you were talking about with justice speak levin, the difference between the need to standard, you said it doesnt work in the grand jury. What do you do with the judges opinion on the case that took nixon and david apply it in the grand jury context . I think you mentioned in the earlier argument the fact remains the case was applying the standard as the court contemplatecourtcontemplated tof executive privilege and as it was pointed out earlier today i think that is a very different analysis to be undertaken for different purpose. I dont think one can simply import of language and apply it. Sorry to interrupt. Lets leave that for a moment with the point on the grand jury versus the trial, the opinion did take nixon and apply it in the grand jury context. And indeed when we are talking about a privilege analysis, i think that language is appropriate because at that point, once theres been affirmative showing that established there is a privilege to be addressed, its likely a privilege for the court to then to turn to the demand request and the documents at issue and evaluate them. What do you think it is . In the duties and obligations of the presidency it is the same analysis that was applied in nixon and clinton. Do you think that it is time and Energy Destruction as appropriate in the article to interest is . As a matter of degree, yes, that was the analysis. We recalled although the Court Allowed the litigation to proceed, of course appropriately as i think is the case here the need to make sure they are overseeing this kind of objection are undertaking the analysis of what the burdens are including at a practical level i think the Clinton Court hypothesized perhaps actual in person testimony might be appropriate. The other side made to distinctions and i want to make sure you have an opportunity to address them one is the federal state and the other is the civil criminal i suppose one thing i would like to have you address the court emphasized there is an individual person at stake that has a claim is not the same in the criminal context obviously they are very different interests but not the individual interests. Can you address that . Thats one distinction. There are potentially thousands were many more of the ethical and jurisdictional constraints they are bound by at which the court has long paid deference. I think the reason for concern is much higher. If theres an article at stake and you say it is and its different in the executive privilege interest is articles at stake i think the other side says it would be all of the standard would need for the state prosecutor ed for the federal prosecutor and i want to give you the opportunity to address that. I dont understand the distinction. Under the analysis the court applied before and the one we are talking about now, the same analysis would apply in the case of specific evaluation in the context of the particular facts of the particular request. You are okay with whatever standard applies to a federal prosecutor in a case where theres an article to interest and also applying to the state prosecutor . You are not okay with the standard i dont think. Because of the fact that i was applying to the claims of executive privilege but i think to get to your point what it comes down to in the nixon and clinton cases, we are talking about article three separation of power an analysis and here te analogy is balancing federalism about the police power of the states against the supremacy clause so it is a different analysis but its very analogous. Thank you. Council, we have a little bit of time for a second round, and i guess the thing that i would like to focus on first is the question of how you examined the burden on the president or the presidency. I dont understand how it works to be asked to devote a certain amount of time to review for example in this case the ten years of documents or whatever. I mean, is there supposed to be a hearing where he says this is what im doing. Ive got this pandemic, china is causing all sorts of trouble . Most president s throughout the term have a pretty long todo list, and i just wonder how it is ever going to be different in evaluating the burden. It seems to me that it would be the same no matter what, you wouldnt need it in a particular hearing. I guess when we are talking about in the context of a particular subpoena like this one or litigation or what have you, but in Clinton Court has already decided that you cannot shield a president from any sort of private distraction. I want to emphasize here again what was in the civil conte context . Im not sure whether the stigma of the simple secret grand jury investigation if it becomes publicly known is more distracting and stigmatizing perhaps then being accused of misconduct which of course was allowed to proceed in the case involving president clinton. So im not sure again the abstract concern about the possible mental distraction or even public stigma to adopt the rightwing constitutional rule that forbids any kind of process like this. That is what the president s personal lawyer is advocated. Its not what the solicitor general advocated. I know, your honor, therefore the answer in that case is what happened here which is a case of specific analysis before the court which is able to balance it was into arguments about burdens and when they dont find one whatsoever after an opportunity to be heard, that should be the answer and that is what happened here. Justice thomas, anything further . One question, theres been much discussion about burdens on the president. I would like from you a couple of specific examples of what you think a burden would be that actually counts in your analysis on the part of the president. Hypothetically because it proposes we say no burden whatsoever but i think that again i would point to the courts language in the clinton analysis where it was observed in passing that if a president was asked to appear and testify in trial someplace outside of the white house that might be the kind of thing you would say shouldnt have to happen. I would suggest among those lines also if a president were to be asked to show up for multiple days of consecutive deposition testimony or Something Like that, those are practical burdens. Or if the demands are they show up at a particular time or place that is there are conflicts into that kind of thing, again since we are talking about private conduct and no executive privilege, what we get t give tr practical concerns about the impositions on president ial activities, and i think that is what we are talking about. Justice ginsburg, anything further . Nothing further. Justice breyer. No thank you. Justice alito. One quick question. I dont know how good the court is about predicting consequences of some of the decisions, but would you say the courts prediction in clinton versus jones but it wouldnt have much of an impact on the presidency as it has been brought out . I guess my view of the chronology to be briefed is i think contrary to some peoples view of history the District Court following the courts decision has a close rein on the discovery in this case and later granted judgment long before trial. It led to the proceedings and other travails he had so i dont think it was this courts opinion or the litigation itself that led to those problems. Frankly it was the decision to lie under oath so i dont think the conclusion you couldnt accept the notion that theres going to be a parade in a particular case or acrosstheboard. Still its borne out of her history. Justice. One is in the articulation of special needs for the heightened standard. But you have already conceded to one of my colleagues that there is an automatic burden on the article to clause by subpoena, period. Im sorry that i havent conceded that. What then are you conceding when you say that there is a burden, what kind of burden are you talking about, and number three, articulate precisely what problems you have with the heightened standard of nixon set in the grand jury subpoena. By response, but i acknowledge is yes a subpoena like this article to its potential burden and its those that have to be weighed out in the analysis. I wouldnt conceded the fact of the subpoena imposes, quote, an article to burden. I think that is a distinction that i withdraw. And again, getting back to the language question, it is the language that calls for a stringent showing that the request is directly relevant to the central issues of trial and charging decisions and again very simply, as a practical matter, no court and no prosecutor could meet the standard because in a grand jury, one is in thinking about charging the positions were centraof thecentral issues of tt is why i think the civil language of the doj is applying in its new height showing standard is just not workable. Justice kagan. On the question of the possible distinction between the state prosecutors and federal prosecutors, the president s lawyers have urged that there is a legal difference arising from the supremacy clause. I dont think weve talked about that argument yet. What is your response to that . I eluded to it before and i think all it means is that there is a balance to be struck between state prosecutors and the supremacy concerns against the rights of states under the police power is into the concept under federalism and the requirements of the tenth amendment to allow the states to exercise the rights especially in the criminal context which are so important. So, that is the parallel to balancing in this context, but its even more important given the concerns and the fact that the state prosecutors of course not only have the reserve police power of the state but in the context of criminal investigations, they ar were a large body of criminal conduct only prosecuted by the states, so that is the thing that has to be balanced. Justice gorsuch. Thank you, chief justice. The deferral of the investigation until after the presidency assuming statute of limitations issues were solved which is the assumption i understand, can you take off the concerns they would have about that is that we have those clear . Yes. Again, point number one would be putting aside the statute of limitation concern which i dont think one can discount because i dont think that its been addressed. That is our paramount concern at this point as the clock is ticking but even if that were to be addressed somehow at the risk over time by waiting losing evidence and witnesses and that kind of thing is a very real risk and i think the memo addressed expressly in saying the proceeding should be allowed to proceed with second, it isnt unusual, in the investigation regardless to delay because a president is still in office, as to the third parties and gathering of important evidence could yield them being above them all. Would you like a minute or two to wrap up . Yes, thank you. The issue presented here today is narrow but extremely important. We have a state investigation that is wellfounded and implicates no official conduct or executive privilege, involves a variety of third parties, faces serious time constraints and has been found to pose no article to burdens. These are well within the scope of the Legal Process for generations indeed act of 1807. Past decisions have found words already have robust tools to protect from abusive claims or demands. There is no need to write a new rule that undermines federal especially when such would create a risk that as well as third parties they could unwittingly end up above the law. Thank you. Thank you, counsel. Mr. Sekulow, just two minutes for rebuttal. Let me start with this, and there is some agreement the new york District Attorney acknowledges that their subpoena implicates the article to burdens. They also agree that there is harm that could arise if we think that those have actually existed. The other aspect of this is the order who carries the burden. That seems to be the issue that is left open. The position answer to that very clearly. It said the standard is carried by the party requesting the information. So it will be carried by the respondent in this particular case or has been their findings of the heightened standards being met. And again i think it is also important to remember, and i think that this came up in the context of earlier questioning there is a different stigma that attaches to the criminal process the physical litigation, and i dont think that stigma should be ignored in a case like this. The irony of all of this is the house of representatives and District Attorney issued essentially the same subpoena to the same custodians for the same records. The housthe houses that once ths so that it can legislate smart t for Law Enforcement reasons. The District Attorney says he wants the same records for Law Enforcement reasons it has no legislative authority. But what is really happening here couldnt be more clear. The presidency is being harassed and undermined in the process issued for illegitimate reasons. The copy speak to that end they saw this coming and structured the constitution to protect the president from this encroachment. Thank you, mr. Chief justice. Thank you, counsel. The case is submitted. Now legal scholars reviewed the cases involving president trumps financial records. This discussion was moderated by the National Constitution Center President and ceo jeffrey rosen. It is just over 90 minutes. I am jeffrey rosen, president of the National Constitution center and beginning these icaningful sessions in the Public Education by reciting together the National Constitution center and Inspiring Mission which comes from the u. S. Congress, so here we go. The national
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