Transcripts For CSPAN2 Supreme Court Oral Argument In Trump V. Vance 20240712

Authority the da has under state law as to the president , the Second Circuit is wrong and should be reversed. If not reversed the decision weapon isis 2300 local das, overwhelming number of them elected to office and thereby accountable to local constituencies. The decision would allow any da to distract and interfere with a sitting president , subjects the president a local prejudice that can influence prosecutorial decisions and the grand jury can be utilized issue compulsory criminal process in the form of subpoenas targeting the president. This is not mere speculation. It is precisely what has taken place in this case with the subpoena we challenge. In the argument just concluded we asserted the subpoenas did not serve a legitimate legislative purpose and were burdensome. Yet the da copy almost verbatim the House Oversight Committee Subpoena with an additional 13 words which seek the president s tax returns without revealing the exact same language utilized by two congressional committees would subsequently be copied by the District Attorney covering the same documents and sent to the same recipients purportedly for two different reasons. Under article 2 under nixon the subpoena we challenge today cannot survive. As the Second Circuit concluded the da represents, the president being investigated for potential, violations in a state grand jury proceeding with the local da issuing coercive criminal process against a president , this he cannot do. The council for all that, you dont argue that the grand jury cannot investigate the president , do you . We did not seek to have an injunction as was the case by Vice President agnew with the grand jury. We targeted the utilization of the temporary immunity here to the subpoena. It is okay for the grand jury to investigate except it cant use the traditional and most effective device grand jurys typically used which is the subpoena. Targeting the president under the supremacy clause would be inappropriate and unconstitutional. Your theory in terms of distraction and all that would seem to go much farther than resisting subpoena. Dont know why you dont resist the investigation in its entirety or why your theory wouldnt lead to that. Our position is criminal process against the president before the court, criminal process targeting the president is a violation of the constitution. We did not seek to seek an injunction against the grand jury investigating the situation with the president. You focus on the distraction to the president but i dont know why, in clinton versus jones we were not persuaded that the distraction in that case meant the discovery could not proceed. Different things distract different people but i would have thought in clinton versus jones even though civil would be distracting as the grand jury proceedings are here. Clinton versus jones was in federal court, this is in state court, clinton versus jones was a civil case, this was a criminal case. Is this court noted on page 691 of its opinion if the clinton versus jones case originated in state Court Proceeding it would raise different issues than separation of powers, concerns on footnote 13, any direct control, may implicate concerns that are different, they need dispute under separation of powers. Just a couple questions. I am interested in whether or not you can bring us into express language at the founding or ratification process that provides for this immunity. A colloquy between Vice President adams, talk about process against the president and took a position that any process against the president would be constitutionally problematic, Thomas Jefferson wrote in the letters he had about subpoenas issued with local magistrates to banter about a sitting president or if the south and east to west, interfere in the president s responsibilities. In the previous argument the burdensome nature of this is categorical. You cant just look at the one subpoena, the potential for 2300 das issuing process against the president but concern over interference with the president s responsibilities was discussed and thats why in the constitution is process to deal with it. Does it make a difference when a subpoena goes to a thirdparty . Not here. The respondent forfeited or waived it. They conceded they are seeking the president s documents, these are the president s documents, he is the real party of interest and he has the burden including reviewing his counsel over existing privileges and what the documents might entail. Thank you. Justice ginsburg. The public has a right to every mans evidence. Is that your position that is saved for the president , a person protected by privilege and there is no privilege around here. Nonprivileged, nonconfidential papers. The grand jury right to every mans evidence, that was one question and we add this specifically. Paula jones said the president was not immune from civil suits for conduct occurring before he took office. If paula jones had sued in state court rather than federal court, would clinton have had absolute immunity . The second question first, this court in clinton against jones said of the case was brought in state court it would bring different issues for concerns over local prejudice at play, article 2 in the supremacy clause, they said on page 691 and footnote 13 with regard to every mans evidence this court long recognized the president is not to be treated as an ordinary citizen. He has response abilities. He is himself a branch of government. He is really individual that is a branch of government in our federal system. Our position is the constitution itself in structure and text supports the position the president would be temporarily immune from activity from estate proceeding when president of the United States. To the president Justice Ginsburg, not that it excludes the president , the president is not to be treated as an ordinary citizen and this is a temporary immunity while the president is in office. That is required by the constitution. You make a point of 2300 District Attorneys, there might be 1 million, tens of thousands of people who might bring lawsuits, perhaps all of them were unfounded but they could file the paper. Why isnt it sufficient to apply ordinary standards. I gather ordinarily any person who gets a subpoena can say it is unduly burdensome but what counts as unduly burdensome for a doctor who is in the middle of an operation might be different from a person who is a salesman, similarly for the president all the factors you raised could come in under the title unduly burdensome so why not just go back, let the president say i will show you how this is burdensome. I was in time and effort working these things out etc. If he shows undue burden and lack of connection he leans but otherwise not. That is true of every person, clinton v jones. Why not the same here. The hypothetical you gave proves the point. By the time you were to prepare, review, analyze the requests in these three cases today shows the burdensome nature and to require the president of the United States as you raised in your opinion in clinton versus jones that burden is being met by us being here but to require the president to have to respond to each and every state District Attorney hire a lawyer to list what the burdens are. That wouldnt take a lot of time and he wouldnt be burdened because you say what the burdens are and if you are right you win that case. They are saying the other side, no burdens here and you say there are. Let them figure it out. Doing that establishes a problem with an analysis of casebycase analysis. In this subpoena found on page 118 and 19 of the petition is a list of documents that are extensive. You have to meet with the president of the United States. Imagine for a moment, you said lets assume the president were to hire me, that i tell the president of the United States today and say i know youre handling a pandemic right now for the United States but i need to spend a couple hours with you going over a subpoena of documents wanted by the New York County District Attorney. I know youre busy but Justice Alito, are there at least some circumstances in which the u. S. Constitution would permit local prosecutor subpoena records containing information about a sitting president . Think of this situation. Suppose the prosecutor had good reason to believe the records containing information that is not available from any other source about whether a thirdparty committed a crime and waiting until the end of the president s term would make prosecution impossible or difficult. Would you say in that circumstance it would be permissible for the grand jury subpoena to be enforced . In a state Court Proceeding the issues of time and burden are still there. In us the next in that was a case where the president was a witness in the documents were asked for in this court said it should be handed over but in that case it was very clear that the president was a witness and the independent counsel specifically stated that the president was not a target so if we had up your witness standpoint the same constitutional principles would be at play but we are talking criminal process targeting a president. Was the answer that that would be permissible if the prosecutor were willing to say the president was not a target whatever that means . Wouldnt mean it is constitutionally permissible but something for the president to consider, constitutionally i have to be clear. Constitutionally under article 2 in the supremacy clause adds to a state Court Proceeding. Even as a witness it raises serious issues. Justice sotomayor. It seems you are asking for a broadness of immunity that is nowhere in the constitution and in fact the constitution protects against president ial interference with state criminal proceedings. Doesnt allow the president to pardon offenders for state prosecutions and i find it odd that you want us to rule absolute immunity from investigating power, the height of the States Police powers and that we would permit civil damages case by a private litigant we do in clinton. Prosecutors have ethical obligations with respect to grand jury investigations, they keep those investigations secret, they can be prosecuted if they leak that information. Dont we usually freeze in state courts and state prosecutors ask act as they should in good faith . Let me finish and doesnt the president always have the opportunity to show that a particular subpoena was issued in bad faith . The president was given the opportunity here and an affidavit i understand was filed under seal, the reasonable grounds for the investigation. I am not sure why he is entitled to more immunity for private acts than he should be for public acts. He is the president of the United States. He is a branch of the federal government. We only give judicial officers and congressional officers immunity for acts within their current official capacity. If they dont, if they sexually harass someone that is not within judicial functions, they can be sued. Of congressman do the same thing they can be sued. The question still comes you are asking for broader immunity than anyone else gets. We are asking temporary time for a brief answer. We are asking temporary president ial immunity. Under new york state law witnesses before grand jury are not sorted secrecy, they can state they testified in the nature of their testimony. I would like to point out hundreds of members of the United States congress and senate there is one president. You have said that a number of times and made the point which we have made the president s cant be treated like an ordinary citizen but it is also true and the fundamental precept of our Constitutional Order that the president isnt above the law. From our first day, chief Justice Marshall told Thomas Jefferson he could be subpoenaed, examined as a witness, required to produce papers. Going back to the question why isnt the way to deal with these two things the president is special, the president is like an ordinary citizen and that he is subject to law, the president can make these objections a subpoena recipients can make about harassment or burden and the courts should take seriously the president s objections and treat those with a certain sensitivity and respect to somebody whos a branch of government, why isnt that the right way to do it . For two reasons, first the case here is a perfect example. The District Attorney copied verbatim the House Oversight committee and ways and means Committee Subpoena verbatim. We were discussing the previous case the nature of that burden, for Council President hiring counsel for each time he could be subpoenaed as a witness and in this case is a target, would raise a serious impact on the president s article 2 functions so we think a categorical approach, very specific here, state process targeting the president s documents in a criminal proceeding should be prohibited. Neil gorsuch. I would like to return to clinton versus jones and how you would have us distinguish it. It took place in federal court but it was a civil case as has been pointed out. Others there could have been multiple versions of that in multiple districts across the country. What is different about that . How do we avoid the conclusion that the president wasnt subject to special immunity but here is. The nature of the case we are dealing with is not in a vacuum, there are other cases the president is dealing with at the same time. What may have been a situation with president clinton with a lawsuit we have multiple litigation going on including the new York Attorney general. The supremacy clause in article 2 is pronounced as the court alluded to in clinton against jones for that reason. The idea that local prejudice would impact the president. The ideas that we would wait until theres more of these, already on three cases involving multiple subpoenas which cover the same documentation. It proves the point we are here because the house asked for documents this District Attorney is asking for. We are seeing that in real time, the burdensome nature of what is happening here. How is this more burdensome than what took place in clinton versus jones . A big distinction between the defendant in a civil case and a principal in a criminal case by the state district. The deposition of the president when he was surveyed and they are seeking records from the third parties the third party is the agent custodian of the president s tax returns on the statement of financial conditions. These are the president s documents what stops them from seeking a deposition or asking the president to appear before a grand jury because if the official versus unofficial was the deciding factor in our view is the initiation of process interferes with the president s official duty but an unofficial distinction put in place what stops local District Attorney from having the president testify . Brett kavanaugh. Thank you, mister chief justice and good afternoon, mister sec yellow. Following up on neil gorsuch, explain if you can the rationale for having one tool for criminal and another rule for civil. Assume there is one criminal investigation and that is it. And explain the rationale for a different rule. Not that it is a different rule because it is within the context of a state proceeding you have article 2 concerns and supremacy clause issues that create the issues of concern about local president s. The criminal nature of it creates a burden very distinct from a civil case to be clear. The idea you are the subject or target of a criminal case brought against use different from a civil suit where at the end of the day it resulted monetary damages, not loss of liberty so theres a big distinction between a civil case data, the case in that regard. That impacts the standard upon which the court should be looking at the president s temporary president ial immunity. We are talking about stopping a process targeting the president. This subpoena targeting the president. It is that burden that is our concern. The other side says the position you are articulating is more consistent with Justice Breyers concurrence in clinton versus jones than the majority opinion and judges are hearing our privates damage action against a sitting president may not issue orders that could significantly distract a president from his official duties in that language was not in the majority opinion. What do you think about how we should assess that . Those are two distinct processes. Invisible context and civil proceeding the federal rules of civil procedure in federal court govern how the process goes forward and federal judges taken to various considerations especially dealing with the president this is a state proceeding initiated by the District Attorney against a sitting president of the United States so our concern is the nature of the proceeding itself is why we use you category subpoena targeting the president and his records how do you deal with statute of limitations issues . They are decided under new york state law and there would be procedures that could be utilized if the da were to start a process like that or there would be action but i need to say something. Thank you, counsel. General francisco . Mister chief justice and may it please the court. At a minimum a local prosecutor should have to show he needs the president s personal records to subpoena them for two reasons. First as the court suggesting clinton against jones state proceedings can close a greater threat to the presidency. 2300 prosecutors across the Country Place more emphasis on local interest than National Ones. 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 local prosecutor should at least be required to meet the same standard. As the court has repeatedlyy sad in the case of this kind what a court be required to proceed against the president as against an ordinary citizen. Here the District Attorney hasnt tried to meet the special needs a standard. We just heard mr. Sekulow argue in favor of an absolute standard. No circumstances, no how. Your position is that as you say at a minimum the special needs tests must be met. Mr. Sekulow is representing mr. Trump. Youre representing the United States. You were you are arguing for a e flexible standard. What was wrong with mr. Trumps position . I think that mr. Sekulow makes a a very strong argumentn the immunity issue. We dont think its one that the court needs to address at least until the prosecutor argues and attempts to meet the special needs standard. Since a prosecutor hasnt argued and isnt arguing before thisse court that he needs the special needs standard, theres no reason for the Court Address the broader a nerdy question at its the courts ordinary processes to avoid those broader and more typical questions when possible. We think the special needs standard would fully resolve this case at t this stage of the proceedings. In a typical case with adequate allegations to say that the standard is implicated, you would say a ghost before a court and examine whether or not the criteria, you talk about, which i gather is a test under nixon, are met. Under his standard, would not immediately go before the court. He was looking for going from us saying that hes immune so the court would have no business addressing such a case. Thats a significant difference. I think that in both instances the argument would be available to them, you would be able to make that argument to an article to federal court. Under our argument if the court found the prosecutor had not met the nixon special needs standard it wouldnt need to address the broad immunity question. If they did find that the District Attorney met the specialha needs standard, it wod have to than address the Broader Community question. All we are saying is unless and until the special needs 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. T, how do we determine that, when its too much . I think there are a couple of things that you can take into account. First, the fact that were in state court is quite significant. Local prosecutors are necessarily going to put more emphasis on local interests thea National Ones. It simply reflects the man in which they rise to office through elections by local, relatively homogenous political communities. And in new york state i would also add the Trial Court Judges are elected in a similar way. Gk 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 but might be good. Time itselff would encourage house, congress, president work things out in a nontraditional way. All right. I dont put that is being wedded to it. I want to know your reaction. What youre describing is what this court held in clinton and its exactly what is happening now 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. The fact that what should happen in the ordinary course and which can happen in the ordinary course is the solution and limitinga principle because it will make it clear that there is a remedy and discourages i wouldve thought that faith impulses by any state or local prosecutor who might harbor such an impulse and provides an outlet that make sure it cant get out of control. Thats the beauty of the case specific analysis. I dont think these lend themselves a categorical prophylactic rules and thats been the approach fromm this court from day one. Thank you. Justice alito . As i understand your proposed standard, there would bee available review in federal court, and the prosecutor would have to show an objective basis for the subpoena in the relevance of the subpoena to the investigation. Is that correct . Basically, your honor, language like that. I said it was a reasonable probability that will yield relevant information. Probability. What would be o your objection o a somewhat more demanding standard . So the prosecutor would havero o show that the information cant be obtained from another source or itbt would be very difficulto obtain it from another source, and unless the information is obtained right now, as opposed to at the end of the president s term, there would be some serious prejudice to the investigation. I dont think that any of those concepts are foreign to the standard that i articulated. I think they are relevant, in fact, to the objective basis and relevance points. The court below, the District Court in particular, heard our explanations, and including the fact that the reason why we went to mays ours is not to do an end run around negotiations with the president ial lawyers. Its because mazars as far as we could tell is still a repository of what might be the most Important Documents in an investigation like this which are not just the tax returns but the accounting materials and work papers which shed light on the good faith or not of the transaction. My short answer is i think those concepts would be fine and not unduly burdensome in the context of the standard i set forth. Can i i ask you one of the thing . Do you think the adjudication of this in all cases of a similar nature would depend it anyway on state law and practice regarding grand jury secrecy . In federal court the rules of grand jury secrecy are very strict. States have different rules. Suppose a particular state imposes no restriction on the revelation by a member of the grand jury or perhaps even by the prosecutor of the information that is supplied in compliance withos a subpoena. Im not aware of any other states having that kind of lax or nonexistent grand jury secrecy rule. I can assure the court in new york state are grand jury secrecy laws are at least as strict as under the federal system. Putting that aside, if, in fact, the fact pattern presents to adjudge the prospect that the p information will become publicn and the president were to persuade the judge that publication of the documents at issue with themselves impose some sort of article ii burden or other interference with his executive duties in that given state,os i suppose that would be part of the case specific analysis the court could understand and take into account in deciding whether there should be some limitation or even a quashing of the subpoena itself. Thats part of the case specific analysis. We both know that prosecutors, there are prosecutors who leaked all sorts of information, specifically the new york times. If the were showing that was a risk, with that of a bearing on this . Its hard for me im not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy. Yes, all different kinds of offices that are at times leaks of status of cases and that kind of thing. Our 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 is never requested by the media in the new york city area to disclose confidential investigative information . No. Well, they ask all the time and the answer is consistently no, at least as far as i can represent. But what im trying to draw a distinction between is people commenting to reporters all the time off the record, that kind of thing, versus turning over actual a materials like the voluminous tax returns or other sensitive documents that have been gathered and which are covered by grand jury secrecy. Thats what i just dont see happening. I think history supports that view. Justice sotomayor . When youre making an article two burden, does that include the burden of harassment . The burden of using subpoena for political purposes . Yes, your honor i would certainly include that here. The investigation wellfounded that there was no harassment or bad faith in our bringing of the subpoena. Thank you. Justice sotomayor . Council, did i i understand your answer to Justice Alito to be that youre in agreement with the sg that we should impose the height need standard, especially extent . D no, i think were all the calling it the heightened showing standard or in the lexicon now, thet heightened ned standard what im articulating is a different standard in terms of the actual language to be looked at and impose. Weight. If you can, because i want to be very precise, if your standard includes what the heightened need standard has, and why not call it what it is, heightened need . There has to be a reason why you think we should call it that. I did know that i understand what different you are proposing. Im sorry, justice sotomayor. The concern i have with the doj language is calling for a stringent showing that he subpoena request is directly relevant the central issues at trial and of the concepts like that. What im trying to propose that something i think which is not so strict and which is not limited to charging and trial related concepts but which would be workable in the context of the grantor subpoena. Whatever the standard is we articulating, want to stress i believe we call our office has met the standard here, even under the vhas proposal, because of the findings by the District Court. Tell you why thel heightened standard would interfere with the grand jury process. Among other things the vhas proposedot application of its standard if you read its brief would confer the same immunity president is seeking here. What they say is since you cant indict while in office you dont need the documents whileic he is in office. Frankly thats an outcome would apply in every case no subpoena could pass that testap because e basically say you have to wait until hes out of office before gathering information because you dont need in the meantime. Their definition of heightened need says you dont need wobblies in office. Thats not workable here. Why not . Because obviously if you are toto wait until present was outf office in a situation like this, first it would risk the loss of evidence, the fading memories and unavailability of witnesses. Secondly and weekly important, no one should forget that we got an investigation that is looking at the context of other people and businesses. And waiting like that would benefit those other participants. They could all end up above the law if thehe limitations period expires. Delay is it the as absolute immunity and absolute permanent immunity for the president and others if the statute of limitations expires. Thats thens problem with a del. The other side says the statuteer would be told against the the president but youre right it wouldnt be against other people who may or may not have committed crimes that he may or may not be a part of, correct . Correct. Thats important for the third parties. Just to address my friend on the other sides, 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 potentially prosecuting, if necessary, down the road. I dont know where that concept comesno from, but its never ben articulated by this court. There is to act of congress which permits the kind of tolling here. The statute of limitations is a big concern. Frankly, we have already lost nine months of time in this investigation due to this lawsuit. Every minute that goes by is basically with out even a decision on the merits here, granting the same kind of temporary absolute immunity that the president is seeking. Justice kagan . Mr. Dunne, youve been talking about how to analyze of these burdens in thehe case specific way, the burdens both in terms of the presidency time and in terms of any possibility of harassment of the jews of a subpoena for political purposes. Mr. Sekulow said that the burden some natureur of this subpoena s categorical. I taken to mean that any subpoena interferes with the president s responsibilities or undermines the president and his handling of the office. Whats the answer to that . I make three points . The fact is that the Court Addressed this question in clinton and conclude a president cant realistically be shield from every sort ofea private distraction, including some forms of Legal Process, especially in our modern age. Thats what its up to court to evaluate a protect the president , depending on the circumstances, on a casebycase basis. Secondly, hear the claim of the possible mental distraction is completely speculative really get its based on the notion the president might be worried and distracted about where an investigation might lead some day. Its not based on any actual article ii burden or interference of the sort the court was asking president clinton to demonstrate in clinton v jones. Third, if thats the concern i think its wrong to think even a categorical rule would provide comfort to distractible president like that. So, for example, nobody suggests we should be barred from continuing to investigate the president s of prior colleagues. If we now get the documents from them that reflect past communications with him while he was ceo, are within supposed to be stopped because it could create a fear in him that investigation of others might lead into the accuser something someday . Again, my point is that this speculative mental distress standard is not an appropriate basis to draw a constitutional right line. Thats why thee case specific approach is more appropriate. Subpoena so i dont know. It has been determined no one can politically undermine. Dont know how the court could evaluate that. Mister secular suggest you should bad faith by taking away with of the House Oversight Committee Subpoena. We tried to address that. In 2018 when our investigation started and thereafter, a series of public disc disclosures in the press about legal transactions involving tax and other financial improprieties. At the time of the subpoena it was clear that both our office and the house committees were looking at the same public allegations. In a situation like that once the house subpoena became public it is not unusual for office like ours to model our subpoena language on that that is public from a different source when going to the same recipient. It makes it easier for the recipient in the process, no communication between our office in the house about that. Nothing sinister about it either. Neil gorsuch. I would like to return to your colloquy with justices alito and sotomayor. Not sure with the daylight is between the test you are proposing at the test the solicitor general has suggested. These questions should be resolved in federal court and you suggested prosecutors should demonstrate an objective basis for the investigation and at least a reasonable probability the information will be helpful to that investigation. It cant be obtained elsewhere and is needed now rather than at the end of the president s term because of a serious practice that might be in between. As i understood you suggested the solicitor general, should be absolute immunity before the end of the term. I didnt read the brief that way, the District Attorney has to show the need for the president s records now rather than the end of the term. I understand your discussion with Justice Alito agreed that was a relevant consideration. What am i missing . Putting a filing which differences which we tried to highlight the most important distinction is what i tried to note at the outset, the sequencing of the showing that needs to be there. What the doj is proposing is in the first instance the prosecutor goes to federal court and makes affirmative showing, there is some objective basis and cant be obtained elsewhere etc. Etc. And only after such a showing was made by the prosecutor according to the doj does the burden shifts to the president to show article 2 and that is completely backwards and inconsistent with nixon and clinton. It is more appropriate the president has the moving part here to be required to make the showing as any other litigant would be the case. To explain why this request somehow impacts, which is using the case here on actual article to burden. Only ones that showing has been made the burden shifts to the prosecution consistent with past cases to explain why nonetheless it 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. Am i correct in thinking you agree before him should be federal court, the relevant considerations, the necessity of information and timing issues. All are relevant considerations. It improves the burden we are fighting over. With the doj, there is less daylight between us and the president s lawyers. The important point i want to leave the court with is even if one were to adopt that standard or even the doj standard we already met that test given the finding of the court below. We need to write a tool that is presumptively some value Going Forward and not just one president but not the presidency. Trying to understand what daylight actually exists. It is fair to say the only daylight between the solicitor general and who bears the burden of proof, not to put words in your mouth but trying to understand . It is a difference in language that i point out, that language differences are important because i dont think the doj language in the investigation. Brett kavanaugh. Chief justice, good afternoon, with neil gorsuch the difference between the nixon heightened need standard, doesnt work in a grand jury, what do you do with judge walls opinion which took nixon and did apply it in a grand jury context. As you mentioned in the earlier argument the fact remains in the sealed case, it was indeed applying the nixon standard as the nixon court contemplated to its claim of executive privilege and as pointed out earlier today that is a very different analysis to be undertaken for a different purpose. One cant simply import that language and apply it. Sorry to interrupt. Lets leave that for a moment, the grand jury versus trial, judge walls opinion did take nixon. When talking about the privilege analysis it is appropriate. Once theres affirmative showing that established the privilege to be addressed, attorneyclient privilege, necessary for the court to turn to the demand, the request and documents at issue and evaluate them. If we can move on to the article to issue, the article to interests at stake, what do you think it is . The article 2, to be free from unreasonable burdens on the duties and obligations of the presidency and it is the same analysis that was applied in an and clinton. What was referred to as time and energy distraction, article to interests. As a matter of degree, they recall although the Court Allowed litigation to proceed as is the case here, the Court Overseeing this objection are undertaking analysis what the burdens are. At the practical level, the Clinton Court hypothesized that perhaps a request for actual in person testimony at trial by a president might be inappropriate. The other side may two distinctions and i want you to address them. What is the federal state and the other is the civil criminal, on the civil criminal, one thing i would like to hear you address is in a civil case, the court emphasized this, theres an individual person at stake who has a claim, not the same in a criminal context. They are different and important interest there but not the individual interest. Can you address that . That is one distinction. On the other side of the coin is an important difference that there are thousands or many more potential private litigants not bound by the kinds of ethical and jurisdictional and other constraints prosecutors are bound by which the court has long paid difference. The reason for concern in a civil context is much higher than it should be. If i let my last question in, the federal, state, if theres an article to interest at stake and you said there is, executive privilege interest but some article to interests at stake. It would be odd if the standard were easier to meet with a state prosecutor than a federal prosecutor. I want to give you an opportunity to address that. Under the analysis this court is applied for and the one we are talking about now the same analysis would apply in terms of case specific evaluation in the context of particular facts of a particular request. You are okay with whatever standard applies to a federal prosecutor in a case where there is article to interest applying to the state prosecutor . Im not sure exactly what you have in mind. You are not okay with the nixon standard i dont think but because of the fact it was applying to claims of executive privilege but to get to your point what it comes down to is in the next and clinton cases, talking about article 3, separation of powers analysis. The analogy is we are balancing federalism in tenth amendment concerns about police power of the state against the supremacy clause. A different analysis perhaps but very analogous. Thank you. Counsel, we have time for a little bit of a second round and the thing i would like to focus on first is the question of how you examine the burden on the president and the presidency and dont understand how it works in terms of your the president being asked to spend time reviewing in this case ten years of documents or whatever. Is it supposed to be a hearing where he says here is what im doing, i have this pandemic thing, china is causing trouble. Most president s have a pretty long to do list and i am wondering how it will be any different in evaluating what the burden is. Seems to me it would be the same no matter what. You wouldnt need a particular hearing on that. In the context of a particular subpoena, this court has decided you cant shield a president from every sort of private distraction. I want to emphasize the civil context, the question is whether a criminal investigation might be more distracting. I am not sure whether the stigma of a grand jury investigation even if publicly known is more distracting than stigmatizing, being accused civilly of Sexual Misconduct which was allowed to be in the civil case involving president clinton. The abstract concern about possible mental distraction a public stigma under the prior analysis is sufficient to adopt a new bright line constitutional rule that for bid any process like this. It is that is what the president s personal lawyers advocated, not with the solicitor general advocated. The answer in that case is what happened here which is a case specific analysis before a court which is able to balance and listen to arguments about burdens and when the court finds there is no article to burden whatsoever after an opportunity to be heard, that should be the answer and that happened here. Justice thomas, anything further . One brief 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, we say no burden whatsoever but i would again point to this courts language in the clinton analysis where it was observed in passing in the opinion, that if a president was fast to appear and testify at trial someday, someplace outside the white house, that might be the kind of thing that shouldnt have to happen. I would suggest along those lines if the 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 were he show up at a particular time and place where there are conflict and that kind of thing since we are talking about private conduct and no executive privilege, we get to practical concerns about impositions on president ial activities and that is what we are talking about. Anything further . Nothing further. Justice breyer. Justice alito. One quick question. Dont know how good this court is about predicting consequences of our decisions but would you say the courts prediction on clinton versus jones is the decision would not have much impact on the presidency as borne out by history . My view is pretty brief, contrary to some peoples view of history the District Court following the courts decision to close rain on discovery of that case. Later granted Summary Judgment in favor of the president long before trial, on the brief deposition, the president committed perjury which led to the impeachment proceedings and other travails he had. It is not his courts opinion or the litigation itself that led to those problems, this courts conclusion in next in and clinton they could not, a parade of horribles. Justice sotomayor. Here is the thing, the statement earlier, the only difference between you and the sg, two differences, one in the articulation of special needs for heightened standard in the burden of proof. You already conceded to one of my colleagues that there is an automatic burden on the article to clause by subpoenaing a sitting president period. Ive not conceded that. Are you conceding when there is a burden . What burden are you talking about. Number 3, articulate more precisely what problems you have with the heightened standard that makes it sit in grand jury subpoena . In my response to need to neil gorsuch, the subpoena like this implicate article to issues and potential burdens and those have to be weighed in the case specific analysis, it subpoena encloses an article to burden. That is the distinction i would draw. Getting back to the language question, the doj language calls for a stringent showing that addresses central issues and charging decisions and simply as a private matter, no court, no prosecutor could meet that standard because in a grand jury what is not thinking about charging decisions are central issues at trial and that is why the simple language the doj is applying, is not workable. On the question of the distinction between state prosecutors and federal prosecutors. And what is your response to that . All it means is allens to be struck with state prosecutors, the rights of states under Police Powers in the concept of federalism and requirements of the tenth amendment to allow the state to exercise the rights especially in the context of what was important, that is the parallel to balancing, and the fact that state prosecutors on the reserved police power of the states with criminal investigations. A large body of, conduct is only prosecutable by the state. That has to be balanced here. Neil gorsuch. Nothing further. Brett cavanagh. Thank you, chief justice. I want to ask again, d for all of the investigation after the presidency assuming statute of limitations issues were solved which is a big assumption can you tick off the concerns you have about that . Yes, point number one would be putting aside statute of limitation concerns which one cannot discount because it hasnt been addressed by this court, in this context and that is the paramount concern because the clock is ticking, and the risk over time by waiting, losing evidence and witnesses and that kind of thing is a real risk, saying a grand jury proceeding should be allowed to proceed but here, in the investigation requiring us to delay, in third parties and gathering important evidence yield them above the law, as opposed to them. A minute or two to wrap up. The issue presented here is extremely narrow but extremely important. Estate investigation implicates no official conduct or executive privilege involves a variety of third parties facing serious time constraints, imposes no article to burdens. This puts our subpoena in the scope of Legal Process permitted by the court for generations, back to 1807. Past decisions consistently found courts had robust tools to protect president s from abusive claims or demands. There is no need to append precedent or to write a new that undermines federalism especially when such a rule created a risk that american president s as well as third parties could unwittingly end up above the law. You have two minutes for rebuttal. Let me start with this, District Attorney, New York County District Attorney acknowledges their subpoena implicate article to issues and burdens. Harms good rise to the presidency, those arms existed. The other aspect of this, who carries the burden . The issue is left open. And it said. And it is carried by the respondent in this particular case, there has been no showing and no findings of heightened need standards being met and this came up in the context of earlier questions. A different stigma attaches to the criminal process, that stigma should not 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 subpoenas to the same custodians for the same records. They want to legislate not for Law Enforcement reasons. The District Attorney says he wants the same records from on enforcement reasons, has no legislative authority but this could not be clear. The presidency is being harassed and undermined with a process that was issued in our view for illegitimate reasons. The copying of the subpoena speaks to that. They saw this coming instructor the constitution to protect the president from this encroachment. Thank you, mister chief justice. The case is submitted. A look at the implications of chinas National Security law in hong kong, House Foreign Affairs Committee Hearing starts at 9 30 a. M. Eastern and you can watch live coverage on cspan 3. Also online, cspan. Org or listen live with the free cspan radio apps. This is a crisis. People are losing their lives. With Police Reform taking center stage in Congress Watch our live unfiltered coverage of the latest developments plus the government response to the coronavirus pandemic. Going from 30,0002520 and it is going up. Briefings from the white house on foreign affairs. Congress on healthcare, insight from former administration officials. There is a line one should not cross where governmental powers used essentially exclusively for personal benefit. We will stand proud and we will stand tall. The latest from the campaign 2020 trail. Join the conversation every day on our live call in Program Washington journal. If you missed any of our live coverage watch anyone anytime on demand, cspan. 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