Is the only institution in america chartered by congress to disseminate information about the constitution on a nonpartisan basis in order to increase awareness and understanding of the constitution among the american people. And that is what they are trying to do in collaboration with cspan as we invite you to join us in listening to these oral arguments and then convening afterwards with some of americas most thoughtful scholars who filed briefs in our taking positions on both sidesof of the case to help us unpack the arguments we just heard. For an and this has been an extraordinary morning and weve heard three cases involving the president s power to resist the subpoena in the first cases from congress in the second case from the state District Attorney. There are two great scholars and two of americas leading experts on the law of the presidency especially as it relates to the subpoena. Andrew is the professor of law at Joseph Rosenfeld is a lowball at iowa law where he focuses on the Administrative Law, statutory interpretation of constitutional. His article congressional subpoena in court was recently published in the North Carolina review where you can check it out and he was also the author of the forthcoming article the president s tax returns which will soon be published in the george mason law review. Julia joined in support of respondents. She is at Columbia Law School where she also serves as the faculty director of columbia law centers for constitutional governance. Shes the leading scholars of constitutional and Administrative Law and the author of Administrative Law cases. Thank you so much for joining. We have a remarkable morning to recap. Lets begin with the first two cases which had to do with subpoenas issued by congress. We will talk about them for a bit and then turn to the second case involving the subpoena for the District Attorney. The very first question on chief Justice Roberts is the sound its just another case where they are balancing the competing interests on either side and the president s lawyer emphasized them in this case because of the separation of powers excuse. Please helps. Us understand how the president see sees that is different than an ordinary case involving the congressional subpoena and what legal word that congress should have to meet before it can subpoena the records of the president. At a very broad level this is a dispute like the weather that is one side is arguing one thing and another sizes are getting another. Strathe strange thing is usually when the court is thinking about whether congress has done some thing, the court usually gives deference to congress on the statute for example. The court also provides deference with the executive branch in determining the regulation of the issue as valid. What is weird here is we have the two branches collating and we are not sure what to do. At the same time, they tend to protect the president with respect to his exercise of function so hes pressing very hard on this idea but i amt the president. Im not like some random person congress can subpoena. You need to apply a heightened standard to the subpoena that comes to me as opposed to congress, which is saying you are supposed to b deter to us. It is dangerous when you are the court to secondguess the power stated broadly speaking Congress Says if we have a legitimate legislative purpose for the subpoena, the court should uphold its validity. Thank you so much for that. As he said that the ordinary standard for the subpoena is feite deferential. Is the subpoena relevant to a legitimate investigation. It was mentioned at the end of the last case and thats been the Central Standard people have to apply. Here they are arguing for us is very demonstrated need for critical need for thisr information. Several of the justices including Justice Ginsburg and sotomayor so that flies in the face of history. Congress has asked for information from the president all the time. There is a long history of congress seeking these records, and we said in the past and the congressional subpoena that there is a legislative purpose relevant tore that purpose. So, that is going to help us understand the difference between the president s standard in the congress is standard. Its the difference between the critical need or the demonstrated need versus legitimate, and how would this play out and practicing in the case . Y i think that andy said it nicely and that ordinarily, when we are talking about a legislative subpoena, the tests have been pretty deferential in an areaha that Congress Come a person into an Area Congress could legislate, for example. That isnt a very High Standard at all and of course talking about the presidency. On the other hand, the standards that the department of justice and the president are agreeing for comes from cases in which the president has articulated a claim of executive privilege which has been acknowledged as a reason why you hide in this. With the president asking for this, that should just be the standard for when you technologyreason. It should be a basic standard across the board whenever you are talking about the presidency so that is the difference they are trying to hold the presidency held and make what was previously the standard privilege to now just be the baseline for anything againstst the president. Thank you very much for that. You both laid out the two standards. Is it correct the court would have to change it all is said that the president of the congress has to meet a higher standard when its asking for information that the president has not asserted a special executive privilege over, and as Justice Kavanagh said if they demonstrated a specific need or demonstrably critical need standard, explain how that would play out in these factors in a case like this and whether or not congress could meet the standard, that would be great. In terms of height in the standard, the president is arguing there is a heightened standard although it is traced constitution itself. That is we use the phrase of legitimate purpose is to define the scope of the congresss authority to subpoena. So congress can shortly write a lot of balls on a lot of different things, tax, immigration, labor law. Everything under the sun. If you t look at volume after volume, nobody could at least not without going insane. With respect tone a president , e authority of the congress to pass legislationre is how we dispute this and it kept popping up in the oral argument saying you can pass the wall if you want. Things, but not without me. You cannot pass a conflict of interest statute that says i have to recuse myself because of thifthe president refuses himse, then whats left. He is in the executive branch. So yes it is the same standard of the purpose, but the president is arguing that congress, you can only potentially regulate in a very narrow way. So the same standard applies to a very special circumstance from the president s perspective. With respect to the subpoena that is issued, the president is arguing you want all of my Financial Information for what purpose . You want to force me to disclose my finances . Its one thing if congress passesin a statute into those departments are the baby of the makes them atress ten past statute saying if you youre the secretary of transportation you cannot own stock and although companies. Here he is saying the people of the constitution created my office, i am not your baby, you cannot regulate mey. In the same way. So, the president is trying to fight hard againsttr the ideas that they are a valid legislation. Hes asking if they were going to collect the Financial Information to words that it doesnt relate to a valid legislation. Its given the narrowness of the authority andurer the subpoena n the same way that they might be valid with respect to other federal officers that might have a business interest. Thats helpful. So, now im understanding the case it may be helpful to put on the table a piece called [inaudible] that came out of couple of times. In 1927 in the middle of the tea teapot dome scandal it was a challenge to the conviction of former attorney general and prosecuting the wrongdoers and congress wanted the authority to testify if they didnt want to do with the Senate Committee out of bounds if the purpose of the investigation that had nothing to do with the committees legislative purpose and the court upheld the conviction saying in order to besa valid we have the presumption that the congressional investigation has a legitimate legislative purpose in order to investigate the central part now is to help us understand how Justice Ginsburg said one month investigate before legislating the purpose of an investigation is to frame thas to framethe legislation coe cannot have the courts deciding in advance what the congress is allowed to potentially legislate on because that would raise the separation of powers concern. Just at the outset to say the claim of the president ial immunity from the congressional regulation, that is a pretty strong claim and i think it is one that is very aggressive and we do have financial requirements that apply to the president so just put out there that that in itself is not necessarily. And its very much a contention of the case. One of the things that is interesting in the struck me about the argumentt is how we just got Justice Ginsburg and i think the more liberal justices emphasizing the ease of information but there was more focus and much less concern with what Congress Needs in order to perform a legislation and in an eligible way which is information. It seems in the past if you look at the courts prior precedent i think it is quite interesting. Though these are coming in more stark for, we havent had that many cases and in the cases weve had to talk about the investigations and they need to investigate in order n to legislate. Congress needs to perform that oversight in order to legislate but it doesnt have to be the primary focus of that. It didnt get mentioned in this case probably because the subpoena is arguing with personal private documents they have the need to be able to subpoena to investigate and figures out from the getgo. One that has raised he found it very interesting do you think that there are any powers for the congress to subpoena the doctrine as it might be limited. What would you mean by that power into the answer was usually forwardlooking and not going backward to the simple aid and been Justice Thomas finally said the dc circuit opinion the information should be requested. Going back, but for its limits. Are they agreeing that the limits or that subpoena power has to be to the service of investigation costa rica in the service of possible legislation rather than investigation or was there some appetite on the court for further limits on congresss power. You will find that subpoena power in the same place that you find the president s executive privilege authority. To create it with a legislative power, of course they need to collect legislation. It is the case they have lots of different powers prescribed. Its not just from the legislative power so if it isis invoking the legislative power is there some potential legislation out there. Congress can do other things to impeach the federal officer. It is and can we pass the legislation with so and so it is the information relating to the impeachment function. So in these cases the president t is arguing these committees are not trying to pas to test posith respect to this, what they are really trying to do is find out if i wrote the law basically exercising the impeachment power which could be the case. However, the relevant committees dont have the authority to pursue these circumstances so this isnt about legislation. You want to know whether i wrote the wall which is a suitable subject but they are notpe authorizing n you to conduct an impeachment investigation. Therefore you go outside of the bounds of your authority. They can take on different forms based on the particular function served and the threshold inquiry makes a difference in the validity of a subpoena. Thank you for that. Use the power from the power to legislate. Tell us what you heard about the oral arguments about its limits are. Chiefit Justice Roberts asked a question and concer it concernes well as Justice Alito and summoned the other justices. Is there a subject on which legislation, the principle is congress can subpoena on which. Can you give me an example of the subject beyond what congress can legislate and hesitate to put anything out of bounds and there were some questions about whetherna the president s famils medical records, just to embarrass them, might be tolivered or not. But what did you hear in chief Justice Roberts question, and tell us about both sides answer question is whether there are any subject beyond which congress can legislate. I was struck by the ones for limiting principle. It was a question that came up in the different guidance but there was some concern about how what we protect against these recognitions. So, where i think the differences may lie in how we try for a categorical book you cant legislate a were you go on a more casebycase situation. There was a question towards the end where she was trying to distinguish between the different subpoenas in the case and the one from the Financial Service committee that used President Trump as a case study. Its hard to know why the president would be the most logical case study. It is one way to have a identification oanidentificatiod scope and topic. In some kind of limit not necessarily a categorical one but one that would limit the raw power of congress when the president is involved and that line between the different this mightpr be one justices are going to. On that point. Its easily stated with respect to the legislative subpoenas to figure out what the legislation had. I was skeptical when i am skeptical of the case study analysis as pointed out there are some that relates to potential ethics legislation that congress is interested in the finances because they want to know maybe we should change the Financial Disclosure laws but this one subpoena. Another subject is a wrongdoing in the baking industry. The stated reason for asking for not just President Trumps n information but everyone on their behalf is the case study with respect to this issue. That is a limit on the Investigative Authority that is the congress can pass legislation to. They cannot substitute investigation for legislation so i think the second set of opinion illustrates the limit and congress can legislate but it cannot tremble on the private rights. Is it standard i hear that you are articulating they said are you saying the subpoena it is unfolding the workings with the prosecutor why is it whatever standard applies with the ,personal papers why isnt thata weaker standard rather than a stronger one, tell us about what Justice Breyer was getting at and at the suggestion in the case. They are not going after public records or conversations. There were also claims of privilege in some other cases when that came up in the second. In those instances the court has recognized the need for some confidentiality is a constitutionally based interest. In this case, what you are hatalking about are coming for private information that are not privileged. When you make the claim of executive privilege it comes to make the claim to pass the initial threshold and the burden suggested on why it needsen it. In this case there should be a claim of some kind of special. Rivilege so the argumen arguments made at that is the concern about harassment so that is specific to the president. In the case of withholding the subpoena has been reluctant to do. If you look at this in terms of historical practices, which is something that has come up in the separation of powers case the practice of the subpoena and broad claim havent and one of the things he was underscoring is pretty intrusive subpoenas in the past. Its even at the level of what was sustained in the past. Several of the justices raised this and there is a long history of getting them as Justice Ginsburg pointed out ever since 1792. These arent even his papers and private entities, so i dont understand they are not even covered by the executive privilege. Its asking us to put a weight on the scale between congress and the president and to make it impossible to carry out its oversight function where the president is concerned this isnthat thisisnt going to be e and i wonder whether that is a good reason so what was the president s answer to that historical record and what is your answer . In the historical comparisons i do feel that they were analogous. First with respect its one thing to have a grand jury subpoena with respect to the president s record it isnt bound by the same things s. Congress is weve been sayingn the conversation that when they issued a subpoena they certainly have to have a legitimate legislative purpose. Thathat is in the requirement tt applies to a federal grand jury. They dont have the law so the mere fact that they have the authority to doesnt tell you the different Legal Standards that apply. With respect to other historical incidents these are voluntary disclosures. He told congress i want you to examine my returns. Some of the historical cases they are circumstances which the president wasnt the target of thees investigation it was relevant to do someone elses wrongdoing and its bound by the legitimate opposite of purpose. They are comparing apples and oranges with respect to the historical examples and theyve turned things over it made no difference here. Its somewhat better than the president himself and to me it is a little bit of a red herring. There is a document on its own computer if there is a subpoena for him, he wouldnt sit there late at night categorizing and documenting all of the materials he would still have to determine consulting with others into the scope of the subpoena and so on. In other words, the burden with respect to the document told by the thirdparty custodian he still has the right to determine whether some of the documents may be outside of the scope of the subpoena. So, for me just the fact that we see hes standing to sue, that implies that he is harmed by the potential disclosure by the wreckage to congress. So here it is a personal stake otherwise we wouldnt be in court. So, for me, i dont feel perhaps the same way others do about the fact that the records are not only held by someone else. I dont think that it makes that much of a difference whether it is held on his home computer. Im hearing an echo so somebody needs to turn off their computer. But he said that i it is in prae all know that theyre going afterpr the president. It doesnt mean that it wont be burdensome to him. I also hear you say interestingly thats the standard for the grand jury should be lower. Justice ginsburg raised an interesting question about the motives and put it in a very stark way. It makes no sense when even the policemen on the beat gives the reason the car went through the stop light, we dont allow the vevestigation into what the motive really was. Here they were distrusting congress more than the cop on the beat. And then our great chat room we have the Constitution Center we the people podcast now at Columbia Law School why shouldnt they get difference here to what the house says with the legitimate purpose. I think in general many instances they have been reluctant to do these inquiries. I think it recognizes there are some instances it would be appropriate but if you talk about the coequal branch, it is absolutely right there was a very big very big difference given. For that very reason and in addition because if you look at the president hes quite expressed in saying we are not going to be second guessing. You dont have to prove. We will take whether or not objectively looking at a subpoena it is connected to an area that the legislation could be had, for example. So, i think that there were arguments made and what Justice Ginsburg was getting at that struck me in the argument is the suspiciousness with which sort of viewed at times in the arguments and some of the questions from the justices. It is a separation of power issue and that means that there are two coequal branches. You are putting a 10ton weight on behalf of the president in what youre getting is if we do the standard that protects the president so much, we are actually hoping the oversight of the executive branch and the other thing that strikes me is how much distance weve gone like 20 years in terms of the degree to which the. The president s didnt think they could get away with the claims of resisting the Congress Shall process and the extent to which actually the political branches can negotiate that out and so maybe the courts dont need toma come in. And i think that as a result, one of the things that is a background here in this case is a very resistant Congress Shall oversight that the Trump Administration has been taking and against that background you are getting more categorical claims whereas in the past he would have negotiation on specifics of this or that and can you combine them and not committees ande so forth that is part of the constitutional heritage is they can be worked out in the branches but you cant give privilege to one side. Many thanks for all of that and thank you for mentioning the case. One of our questioners asked the references she said she needed information and wanted to subpoena himar to testify. He said he had an immunity for wanting to testify the civil suit because it would take up too much of his time and ability to exercise the ability to the office of the presidency in a bipartisan opinion John Paul Stevens so the president wasnt categorically testify invisibles and into the court was confident it would take up too much of the president s time and therefore he had to get the information. A she said go back to your use and clinton said youre supposee supposed to treat the president with respect. But the fundamental claim of immunity or the idea that the president was different from another litigant and what i would like to know is why you dont argue that these particular ones play a particular burden on the president to be prevented from the constitutional responsibilities. That is how you prevail in resisting the subpoena. It doesnt preclude him from turning over these bits. As a factual matter, i dont think that society will come to a halt if President Trump has to comply with a subpoena. He has a lot of free time but i dont think the society is going to end. The longstanding approach of the Supreme Court in the case the question isnt whether anyes particular subpoena over and got President Trump isnt to be present forever. They always control the senate. They need to send the robot is going to apply in the future generations. In the majority opinion they said we are looking back at the last 200 years and they are blessing subjecting the president to the process in court, and given the last 200 years, we dont think that its very likely that the president can face that litigation. Its just not going to be a habit. While, pick up your newspaper from the last few years. The president of the United States whether he thinks it is his fault or not is subject to the litigation over his twitter account, payments, everythinghi imaginable. And then the council could enot admit it or that any subpoena i would ever be invalid that word raise some concerns of the justices when we decide the case. Thank you for noting the concern about future president s on both sides with justice. The question is this will apply to our future senator mccarthy and that to say i understand Justice Breyer correctly and then plaguing the president of the United States for the legislative purpose that it is too broad. How do you understand Justice Breyer in that regard . And where did he draw that limiting principle . The for that limiting principle how you protect againstor harassment and they were tuned to that concern and interestingly more so they had been in jones with similar concerns were raised. And i agree that the counsel for the house struggle to get that limiting principle to risatisfy the court in part because if you focus on the area where legislation could bebe had and acknowledge those powers it doesnt seem as much with what those justices said so there were some others that were identified. With medical care of the United States it is hard toouus see why the president s Health Records so you can do more with pertinent see then got traction demand the protections of the bill of rights that is relevant for mccarthy and article two. With you get to article two there is a test that was established with the general administrator and to even invoke more recently by the court that doesnt interfere with the ability to perform a constitutional function. The house was willing to go with that test. G dojent and were not they wanted a higher standard of protection and categorical the only thing that the house was willing to offer is that in the second case that counsel for the District Attorney did a good job toem empathize that it can be done on a casebycase basis it came out clinton versus jones as well and could step into protect abuse them particularly going after the president ou and it looks like harassment federal courts can step in and thats another protection that shouldnt be discounted as a way to ensure that these dont get out of hand. Both Justice Gorsuch and Justice Kevin as a practical question how congress could meet that standard. Why isnt the subpoena supporte supported . The answer is congress hasnt specified with that plus one specificity to ask for documents going back over ten years. In response to Justice Kavanaugh and then the answer was to consider general legislationn that would be very difficult has to be more suspicious and then to enumerate that with some specificity . It shouldnt be too hard to provide a couple lines most commercial lines are held with the 1000 page statute first to explain why he wants information because the subpoenas are so broad with that potential legislation could be served so are the spending habits to four yearold grandchild how is that relevant to anything that congress is doing . Its a very strange demand every one including grandchildren with that specific standard and then to articulate in just a couple lines and you have to write a thousand pages but if it was narrower to satisfy that standard but of those strange things to has nothing to do with legislation then yeah you will have a hard time articulating to justify such demands. And that the subpoena i was more narrow than congress could of justified more convincingly but then president clinton at the national Constitution Center said even if they cantt legislate and then to be employed within the executive branch would this be relevant with respect to conflicts . What is your answer and with that regulatory investigation how are courts is supposed to evaluate those Services Without the separation of powers . All of these demands were too broad i am less persuaded by. Hidden in this question is the issue to what extent congress legislates with that Financial Disclosure and then if you accept that congress can there is a pretty broad claim of immunity from congress, then it is harder to see what can come from these subpoenas if you acknowledge congress has roles in legislating these areas to force and develop and finetune ethics regulation and then they are not too broad. And then to identify with specificityfy was something that could impact and then to go to find that specific legislative measure that congress does have an Important Role to oversee the executiveve branch its an area where legislation can be had but it doesnt mean legislating but it can investigate to have a running tab with that oversight function and it does not deny toward legislation and that is also within a legitimate scope. I were draw a distinction with Financial Services committee certainly i think that Health Record hypothetical but once the Government Oversight Committee that is legitimate. Thank you so much for that. So we can tie them together in the end the case involving a question and those financial records of which there is no timing of executive privilege. No county or District Attorney and with that constitutional immunity required by article two and then francisco and then to take a more narrow position that you should not have completeno immunity but a heightened standard and once again that came from the nixon case demonstrably rather than the ordinary standards of the grand jury subpoena which is relevant to a legitimate investigation so tell us the solicitor generals argument and in both cases for that standard to be applied in a case we had not been applied to personal records, not claimed by the president to claim executive privilege but this involves congress. How did that play out differently in this case and why do you c believe the president was correct . As you pointed out the doj arguing for a limitation on the grand jury proceeding with that context of the standard is borrowed from which there is privilege material. It sounds like a different context is crazy. But i dont think so but keep in mind they case in which president clinton was sued in federal court and the Supreme Court held that clinton could be subject to some processes of the court but the court was very clear in the text of the opinion to beth totally different that the state court has evolved that is a serious constitutional concern but here with the states criminal process the alarm bells are going off this is issued at the Supreme Court so what do we do . Normally if the grand jury once bank records that there has to be no conceivable relevance something extraordinarily low because prosecutors keep financial records all the time but in the office of the presidency the solicitor general comes from a higher standard in coming up with the Legal Standard why not look at what was used in another context . That standard applies in executive privilege because of that convenient language and thats why the solicitor general use them im not sure. Because the solicitor general first advanced the theory in this litigation. And then to bridge the gap and just to apply to the normal standards and that is where we get the standard it seems like a reasonable approach i thought some justices seemed receptive it didnt seem to break along the ideological lines. You for that. Just to recap where we are the first case involved subpoenas from congress and the majority case which we talked about said it has to be issued for a legitimate legislative purpose and the second case involved a subpoena and the question here is what should the standard be in the solicitor general said it should be the same at the government is arguing for in the first case which is a demonstrable critical need. You shouldnt just get it because its relevant so it seems that this involved a similar criminal proceeding not a subpoena. So how would you do this cracks yes in federal court but it was a civil case that could be multiple versions in different districts of the country and that have special immunity but the answer to that is a lawsuit in multiple lawsuits and they were concerned local president s could impact the president and gossage said on Justice Gorsuch said how does this have more importance . Its not the definition serving in the thirdparty so whats to stop them to have them appear before a grand jury and then Justice Cavanagh said explain the rationale for one rule for one so what do you make of all of that and how did you hear the justices trying to distinguish Clinton V Jones . I think i got much more play in this argument and in the prior one. One of the interesting things is at the court then was sensitive to the possibility of the president being targeted but also require the president to do an initial showing of burden what is going on is to bears the burden and when. So the president and solicitor general the president once the absolutee immunity i didnt get much sense of interest of that but i thought that they agreed with that that there was concerned and then the question of the solicitor general would say given that potential there should be a high and showing. Of course clinton versus jones said first had to show the burden on the presidency and then specifically so already to move us beyond clinton versus jones so among the justices of the court my sense is they are trying to figure out what the standards should be so you have many different variables first you could way the burdens of that differently. On the one hand its a possibility of prosecution thats a pretty big h deal but alsoso the concern that elected officials are concerned about the process but on the other hand as Justice Breyer said in the beginning there can be a lot of burdens its fair to say it took a lot of time and those burdens i think is tricky in new york to be very sensitive to what these concerns would be that the federal court would have to be so if that is mitigated the yes you have a federal court there to protect the president and that has been conceded and is off the table. But whether or not the president has to make a showing of the burden or privilege or allies and if the president does show that, then it turns and then to show why and what specifically is not available elsewhere. But then to go with those proceedings of the grand jury that is not a trial one of the things the state identified is the concerned that is related to trials that induce about the grand jury which is the investigation so its harder to identify that specific need up front. Grand juries are subject to rule and confidentiality. But i was struck with how much fine tuning of what the standard should be but i thought they were struggling what it was like between new york and the solicitor general standard and how it took the right way. That is helpful. I agree that justices on both sides are struggling to figure out the difference between the standards it is striking the attorney for new york propose the standard that you just mentioned. He said if there is an affirmative showing with that article two burden it would take up time making it hard to do the job so theke courts should be open to evaluate if there is the objective basis for reasonable probability and then Justice Alito said can you ask if you to get the information somewhere else but then Justice Sotomayor said wait that is a demanding standard than the ordinary one if it is relevant to a legitimate investigation and she and Justice Kagan said why dont we just ask the usual standard whether credible suspicion and if it is reasonably consummated to advance that investigation. And my friends who are not lawyers explain the difference between the government standard and demonstrable and opcritical need and your standard that there is an objective basis for thehe information. Why is this important . And can you imagine the court converging on a bipartisan standard . What would that look like . Its hard for i me to say sometimes you are just a few core oral argument and they veve one narrow issue and you get a sense that i dont know if we will have a three two, four oh opinion. Something like that. But in terms of the standards and then to writea some showing to categorically provide and then the burden to show i cant get the records from somewhere else i really need these records for this investigation they may relate to someone else therefore the target is in london as the president is at the target it was clear with those various defenses by the person against a grand jury subpoena. But i can see the president was a little concerned but why not just apply the normal rules that virtually to get whatever it wants with respect to the president under the normal standards has an extraordinary important function in society. They cannot trample on the state courts to those institutions asit well as the president then have this fascinating and that i have to decide that. But you do have to explain it. [laughter] there is a remarkable sense but i was so struck because the court said its okay to subpoena even a private diary of Monica Lewinsky at the time that was the general borate private papers sparked the American Revolution to understand how that happened i came to understand it was a series of cases in the progressive era you could not enforce federal regulations and others could resist a subpoena from congress or general bodies by insisting they were private so then the result that any information can but then with the idea that the president is special he is a branch of government the solicitor general said. Therefore he should be treated differently. Justice ginsburg says the grand jury can get any information it once except the president . Is that what you are arguing . Is that you read the argument and because he is the president and susceptible to civil suits should be held to a differentthe standard to be abusive for political reasons and then create a new rule . I will say the president s lawyers have that categorical exemption that may have been the first best choice but the solicitor general saw the court was not going to go with that and was arguing something a little more restrained. How much or how much the president is protected goes to the standard. So the argument of the harassment what the president and the president is the executive branch is the idea as well. I am struck by the contrast. Is 1987. Not that long ago and it was essentially unanimous prior was the most concerned but otherwise it was not and the real affirmation the president is not above the law. I kind of think that court on this one may try to come together there may be some differences of the specific standard and how to apply it because i think its important need dont have that ideological line on the basic principle that the president is not above the law. You can protect the presidency by burden shifting the real question is nobody says theres no protection from the government even the justices didnt say there wouldnt be protection they said what the ordinary standard and then he comes in with privilege thats the argument that we require something more but thats where the difference was. Everybody t t acknowledged maybe he needs special protections the question is if he provides at the outset showing anything or to some o degree of burden. Thank youst for noticing not asking you to predict or solve the case because thats above the pay grade but clinton the jones wass near the unanimous and ginsburg cared about the court and try to avoid five four decisions especially with the balance. And they ruled unanimously against the civil case and the criminal case President Trump so what could that standard look like as an advocate of executive power . Lets first fif the heightened need standard has been satisfied and then if it has, then we will get into this question. I dont think that the president being anyone even absolutely if it protects the grand jury it cannot investigate the department of justice. It is a canvas prosecutor cannot invite secretary of the treasury for his official duty. The states cannot subvert the federal government. The question is here, does the president get even more protection on a temporary basis, not forever, but a temporary claim of immunity until he leaves office. Does he get more protection we already know it already acknowledges giving to the inferior federal officers. For the criminal process the rules turn back on so to me i want to know what the law is first and i know whether someone is above or below it. Thank you for articulating the standard the court should embrace the heightened were critical need standard back to the court to decide on the basis before deciding whether the president has absolute immunity. I didnt hear the more liberal justices willing to accept that standard. Why dont we apply the standard that we usually do for the grand jury is and i guess i will ask do you agree that they were not inclined to accept the standard and if thats right can you imagine the compromise more than the ordinary case that doesnt create a new standard. I dont think theres going to be consensus from the getgo. Im not even sure all of the conservative justices necessarily there might be one in terms of stronger beliefs and president ial power that i didnt get the sense that they were necessarily fully on board. That way could be pretty slim, so if a president has to articulate some burden. Its how they could show if they couldnt get the information elsewhere and so forth. Think that i agree in what chief Justice Roberts would like to do and there has to be some assertion of article to privilege by the article to claim at the outset and then we are going to switch to this seither critical need or supervised by the federal court. There may be one or two votes but i dont think that at this point its something they want to engage with. That isna fascinating and to try to think through in real time how the court might way out of thesese computing options. My ability to fulfill is being burdened by the subpoena and then either congress or the grand jury to prove why. I should note jonathan says without these the president is immune from the process and they already found this wasnt burdensome and trump didnt argue it was. Hes arguing hes completely anyone but they are suggesting the legal matter the Supreme Court could say thatsa the president should have to make some kindd of claim that they ae impeded before the burden shifts on the other side to show the information. Lets take one and have closing with such an interesting discussion. None of the cases invoked executive privilege, article to burden in as many of the justices said its one where he did. What would you think as an executive power of the compromise like that. I didnt feel that they made a meaningful inquiry into the factual arguments made by the president with respect to the subpoena. I am inclined to think that the fact that the subject by it self burdens the president from the categorical rule baby i am just scared of going to jail, i dont know but to me o it is obvious f you are subject to the criminal process obviously that is going to burden you so y for me it is the article to exercise of authority would be fine with me. So i suppose maybe it would depend on how robust the requirement has to be and to me it is obvious. It is a burden on the president and on anyone else as a flat rule. The review of the arguments and then we will have our closing statements. What do you want to highlight of the comments from the justices in either case that struck you asic unusual. There were a couple of things that struck me. How quickly and how do we balance this out as opposed to the constitutional frame of state versus federal government or certain situation. I got a sense of the court became interested in the nuances in that case and i thought that was quite interesting. It was more sensitivity to the state interest. What struck me about the fourth argument was i was surprised by the lack of concern in the congress. It came up in the ideological divide and it was much more across the board so what solicitation that was across the board solicitation in the first case so that shows the relationship between the political branches and not necessarily an inspiring thing. It might affect it strikes me that its going to be harder to reach across the Court Consensus in the first case if there isnt more weight given. Is the positionth stronger or trweaker it would render the clm permanent entity example in the statute of limitation concerned that it doesnt exist and what are the implications going to continue to run and then tease out the argument that struck you. The second one first because i dont know the answer to that. Been those are not the circumstances that they would ordinarily tell the statute of limitations. I could be totally wrong but can you just hold and if you cant think obviously the practical concerns becoming educated because the president could ever be prosecuted and you have four or five or sixyear statute of limitations, so that is a major issue and anyone that needs to be addressed by the legislature going forward. Aftere the first part it is stronger or weaker. We didnt talk about the details its very strange to the congressional committees with the documents from trump. And if he hadnt copied and pasted those and he also because they dont ask for the tax returns they also copy and paste a subpoena from the ways and Means Tax Committee and the congress and send those over. To me, this is very troubling. From what i can tell, hes investigating some Business Records and hes asked for all this information that relates to the interference from the federal election, International Banking and investigation into the irs. On the merit if we get into this heightened need standard i think the District Court judge will scratch his or her head. Theyve also asked with respect to things available elsewhere he wants the tax return. It is the properties in new york thursday without they likely have the federal tax returns. The state has them already. The attorney general of new york can have the statutory. Local prosecutors dont get them. Instead of working with his own government to get the documents but they shortly already have come hes decided to subject the president in the criminal process. But i guess understand to the argument that the Supreme Court this is just like any other bank and the fact on the merits if we take the side of the legal issues i find it very strange on the merits. One last question and brief response responsive to anything and then the president wouldnt be able to be invited however if they intend to be anyone from the criminal proceedings if the president is really immune is he above the rule of law, Justice Ginsburg asked a similar question and of course that is the question that is lurking to what degree is the president s special duty under article two entitled him to the rules that are notot applied, so what are your thoughts on that question . It would be temporary immunity and i if you are talkig about the prosecution that is one that would be told so that may be a partial answer. If you are talking about prosecution of the president , i think it does raise some of the federalism taking over the concerns that have been identified in a brief and in this case but in this case this is the thirdparty subpoena and if theres other ways more specific of showing. So if you were to give the blankeblanket across the board e very immunity due to risk being above the law and the equal process and at a minimum then you have to take on clinton versus jones and they would have to overrule to adopt the kind of position of the categorical exemption. I think the court was struggling with this and its harde hard tt the categorical position and adhere they are not above the process at least not without showing some reason why the presidency needs that kind of protection. You have to be careful about the specific context and claim being made into the way the burden is falling on the president and in this casee i think i disagree about the degree to which it is burdensome and it in its list t was going on in terms of whether or not there was a legitimate purpose in the grand jury. It is extremely hard to convince the essence of the position that im going to ask you b to do th. You heard the lawyers do so wonderfully well in conducting their positions. The first of the last words go to you and the question is tell our great viewers why you believe that the president should not have to respond to subpoenas from Congress Worker injuries unless both of the parties can meet a higher than ordinary standard showing some demonstrable or critical need. I cant answer into questio questions. On a doctrinal point, for those listening or that have made it this far we may disagree on these to impose Financial Disclosure and she would tell you the same thing if you asked her five years from now she would have the same approach. So many of the cases feel politicized and that explains the different opinions applied from a for people to watch these cases i hope they were aware theres more things going on in the disputes then i support my guy or gal or support the other side. Theres a lot of interesting legal issues and that explains a lot more division than i think is often appreciated. Thank you very much for that. I must thank you for the power to separate the views and to try to approach the cases in a legal and openminded spirit which is what they are doing in this conversation. The last word goes to you. Unlike those that are allowed to dodge the moderators question but im going to pose the same unto you and you can answer as they like. Tell the viewers why you believe that the president should not be subject to a heightened standard need whenl confronting a subpoena by congress or the grand jury. It has to do with the view of the constitution and separation of powers. In my view, it is better to avoid absolute and acknowledge that history is one of the negotiations on the branches and exaggerating executive power. The executive power has grown tremendously over time and the more congress is poised riideologically. So its not about the protective bridge and i see less of the kind of executive branch than somen backward executives in the constitution view and then the lawyers argued for here so what twould hope to see is a decision from the court that acknowledges the need for taking into account both branches interest and requiring the president to show more before being exempt from either a congressional subpoena for the records or the state process and to try to speak to the tried and true strategy of looking at things casebycase and recognizing that the federal courts are able to protect a wide variety of interest in that fashion. Thank you so much for that predated and illuminating suggestion that the president has to show a heightened interest before he gets closer protections and also for joining and i will not think the viewers for approaching this in the spirit of constitutional law and people can disagree thoughtfully and respectfully about these cases based onnd your view of te separation of powers and the balance between the congressional and executive power rather than on the grounds of the politics. One more day in this great experiment of public education. Tomorrow please come back for day number six. Its going to be another blockbuster involving the electors and whether the state can force them to vote for the people that they are elected to vote for for president or not. There is a marketplace for these discussions you need to give it to be prepared and that is to readis the brief and several of you have asked if the Supreme Court. Gov and also go to the Constitution Centers interactive constitution and the Electoral College and see the essays by the liberal and conservative scholars with a thousand words about the kind of discussion that we had just been having today after two weeks and i know you will find as much from these essays is like you. With that, once again, thank you so much andy and gillian, thank you and i look forward to seeing everyone tomorrow