Review of the first time in history the Supreme Court has broadcast arguments live here i am the president of the National Constitution center, and we have been beginning these meaningful sessions in Public Education by reciting together the inspiring mission, which comes from the u. S. Congress, so here we go. The National Constitution center 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. That is just what we are trying to do in collaboration with cspan, as we have invited you to join us in a listening to these important oral arguments and then convening afterwards with some of americas most thoughtful scholars who have filed briefs and are taking positions on both sides of the case to help us unpack the arguments we just heard. Friends, this has been an extraordinary morning. We are three cases along the president s power for subpoenas. Us to understand what we just heard our two great scholars into of americas ofding experts on the law the presidency, especially as it relates to the subpoenas. Andrew gray while his professor greywall is professor of law. His article congressional subpoenas in court was recently published in the North Carolina law review, where you can check it out. He is also the author of the article the president s tax returns with will soon which will soon be published. Joint law scholars in she is a professor of constitutional law at columbia law school, where she serves as faculty director of the constitutional governance is a leading scholar of constitutional and ofinistrative law and author Administrative Law cases. Andrew and jillian, thank you for joining. A remarkable morning to recap. Lets begin with the first two cases, which had to do with subpoenas issued by congress and we will talk about them and then we will turn to the second case involving subpoenas in the new York District attorneys. Question that chief Justice Roberts asked was, it sound at the end of the day this is another case where the courts are balancing the peting interests on other im either side on either side. The president s lawyer emphasize the constraints of the powers of residency are emphasize because it is a separation of powers. Plus understand how the president sees this case differently than an ordinary case involving a congressional subpoena and what Legal Standard congress should have to meet before it can subpoena records from the president. Andrew this is a dispute like any other that one side is arguing one thing and the other is arguing another. Strange thing for the court is when a court is thinking about whether congress has done something, the court usually gives deference to congress the determines whether the executive branch what is issued is valid. We have two branches colliding. Not sure what to do. They get several deference, but at the same time there is precedence and to protect the president with respect to his exercise of functions. The president is pressing that i am the president and i am not a random person that congress subpoenaed. You need to apply a heightened standard to subpoena when it comes to me as opposed to congress, and they are saying your congress. Guessdangerous to second our stated purposes. Congress is saying if we have a legitimate legislative purpose for a subpoena, court should uphold its validity. Thank you for that. The ordinary standard for subpoena is quite deferential. This the subpoena asking for information that is relevant to a legitimate investigation . That came from a case mentioned at the last case. That has been the Central Standard people have to apply. Here they are arguing for a heightened standard and they cite the nixon case and say the question should have to be, is there a demonstrated need or critical need for this information . Several of the justices, including Justice Ginsburg and soda my are and justice and there is a long history of seeking records and getting them. We set a congressional subpoena is valid as long as there is a conceivable legislative purpose and it is relevant to that purpose. Plus understand the difference between the president s and congresss standard. It play out in practice in this case . Nicely,nk andy said it in that ordinarily you are talking about a legislative subpoenaferential in an area tht congress could legislate. That is not a very High Standard at all. Problem is you are talking about the presidency. On the other hand, the standard that the department of justice and the present are arguing for come from cases in which the president has articulated a claim of executive privilege, which is been acknowledged as a reason why you height it. What they are asking for here is that shouldnt just be the standard for when you acknowledge a heightened reason for showing, it should be the basic standard across the board whenever you are talking about the presidency. That is the difference. They are trying to pull the presidency out and make what was previously the standard in cases of privilege should not just be the baseline for anything against the president. Thanks very much for that. The twou both laid out standards. Is it correct that the court would have to change its law if said that the president that congress has to meet a higher standard when it is asking for information that the president hasnt asserted ace National Executive present asserted a special executive power over and how would it play out in this case . Explain how it would play out in practice in a case this. In terms of the heightened standard, i suppose the president is arguing there is a heightened standard, although that is traced to the constitution itself. We use the phrase legitimate purposes to define the scope of congresss authority to subpoena and congress can surely write lots of laws on lots of things,ax laws, migration laws everything under the sun read if you look at the u. S. Code, it will be volume after volume and no one could read them all in a lifetime, at least not without going insane. With respect to the president , the authority of congress to pass legislation is how we dispute it. This act popping up during oral arguments for the president is saying, congress, you can pass law if you want, but not about me. You cannot pass a conflict of interest statute because i have to recuse myself. If the president recuse himself, and what is left, chief executive branch. It is the same standard and a legitimate purpose, the president is arguing that congress can only potentially legislate respect to me in a very narrow way. The same standard apply to a very special circumstance from the president s perspective. , youresident is arguing want all my financial information, for what purpose . Do you want to force me to disclose my finances . Congress ising if treating the Treasury Department or state department in those departments are the bevy of congress. Congress makes them and can pass statutes saying that if you are the secretary of transportation, you cannot own stock in auto companies. The present here is saying, the people to the constitution created my office and i am not your baby. You cant regulate me in the same way. The president is trying to fight hard against the idea that these subpoenas relate to valid legislation. He is asking, if you are going to collect on my financial information, to what end does this serve . This does not relate to valid legislation and giving the narrowness of your authority over me, these subpoenas arent valid in the same way they might be valid with respect other federal officers who might have a business interest. That is helpful. Now understanding the case, it may be helpful to put on the table a case which came out. It was in 1927 in the teat pot dome standard the teapot dome standard. It was a challenge for a man whose brother was the former attorney general and had domecuted in the teapot and the question was with them out of balance in issuing the contempt order since it had nothing to do with the legislative purpose, the court upheld the conviction saying in order to be valid, you have a presumption that investigations have a judgment legislative purpose, but you cant issue subpoenas in order to investigate things that a nothing to do with legislation. Part . , is that a central help us understand how like Justice Ginsburg said, one must investigate before legislating. The purpose is to plan the legislation and we cant have courts deciding in advance what congress is allowed to potentially legislate on and what isnt, because that would raise separation of powers concerns. Of president ial immunity from congressional strongions, that is a unitary executive claim. A very aggressive come in my view, claim of the presidency. Do have financial disclose mens and other Financial Disclosures that apply to the president. That in and of itself is not a sum aggressive claim. It is very much a contention in the case. One of the things that is interesting to me and struck me about the argument was you did have Justice Ginsburg and more liberal justices emphasizing congresss need for information. There was much more focused on the potential burden on the presidency and much less concern with what Congress Needs in order to perform a legislation in an intelligible way, which is information. In the past, if you look at the prior precedent, it is quite interesting. There has not been a whole lot, and that is because these things tend to get negotiated out. We are having very strong resistance to the kind of negotiations and oversight relationships that have previously existed between congress and the executive branch and coming in more stark forms. We have not had that many cases and the cases we have, when you talk about the congress and their power, Congress Needs to investigate in order to legislate. It is important to recognize that congress has an important oversight function over the executive branch. Congress needs to perform the oversight in order to legislate. Legislating doesnt have to be the primary focus of that. It is partly separation of power system that route that we rely on congress to do that. That didnt get mentioned probably because they are dealing with personal, private documents of the president before he was the president. The idea that congress has a real need to be able to subpoena into investigate and figure out whether not legislation is needed. Many thanks for all that. This question of where the congressional subpoena comes from is what Justice Thomas raised. He said i am very interested, do you think there are implied powers by the documents . Would you mean by limited answer washe forwardlooking aggregated information and not going backwards to assemble a precise history. Justice thomas at the d. C. Circuit judge, there was a dissenting opinion by a judge who said the information should be requested under the impeachment power and not as a legislative subpoena. The is the answer to question, where in the constitution does congress subpoena come from . And what are its limits . Did you hear most of the justices agreeing that the limits are that the subpoena power has to be in the service of investigation im sorry, and service of possible legislation rather than investigation, or was there some appetite on the court for imposing further limits on congresss power when the president is involved . Constitution, youll find it in the same place you find the president s executive privilege authority, it is nowhere written on the page anywhere. These are implied. If we are going to create a legislator with legislative power, of course the legislature needs to collect information to do its work. So we imply that. It is certainly the case, and i think this gets to this in particular, congress has lots of different powers in article one of the constitution. It is not just the legislative power. , isking legislative power there potential legislation out there that it can pass to support its issuing a subpoena . Compass can do other things, such as impeach a federal officer. In those circumstances, question isnt, we are thinking about impeaching so and so, the question isnt the legislation of soandso but is the information related to our impeachment function . Source of contention in these cases is that the president is arguing these movies arent trained to pass these committees are trying to pass legislation, but theyre trying to find out if i broke the law. Could be thebly case but the relevant committees do not have authority to pursue impeachment in these circumstances, so the president is saying, this isnt about legislation, you want to know whether i broke the law, which is a suitable subject for impeachment, with the entire house is not authorized has not authorize you to conduct impeachment and therefore you are going outside the veil of your authority. These investigative authorities are implied in the constitution and they can take on different forms based on the particular function being served. Aat threshold inquiry makes big difference in the validity of the subpoena. Thank you for that. Jillian, ifhe the power is included to legislate, what did you hear from the oral arguments about what the limits are . It question was asked that was clearly concerning is there a subject on which legislation, if the principal is that congress can subpoena for any subject on which legislation can be had, can you give me an example of the subject beyond what congress theot legislate and respondents hesitated to put anything out of bounds. At the end there was some question about whether recordsing the family to embarrass them may be or not. What did you think of the question and tell us about the answers and whether there are sufficient beyond which congress and legislation for which it subpoenas cannot be issued. By the desirek for limiting principle. It was a question that came up in different guises. There was concern about how would we protect against harassment, some potential for harassment there. Where i think the differences may lie in whether or not you try for a category like you cant legislate on the president , that is a category bar, or ego from her casebycase situation or you go for a casebycase situation. There was question by Justice Kagan where she was trained to defray differentiate the Different Cases the one from the Financial Services committee that used President Trump as a case study. Hard to know why he would be the logical case study versus those that were from the government oversight or Intelligence Committee that were trying to find out more about financial closure and conflict of interest and more relevant and why you be asking the president. That might be one way to try and have some identification of the scope and topics of the subpoenas and tying them to why you are asking the president. Myself, i got a sense there was some interest across the court in some kind of limit, not necessarily categorical one, but one that would limit the general, broad power of congress, where in the president is involved. That might be one that some justices are drawn to. Scrutinyrs want more that would have more of a specific higher critical need standard that we heard in both cases coming up in various times. Thank you for that. Andy, what did you hear in the question on that might on that point . Who seemed interested in the special heightened needs . Since you have written an article on congressional subpoenas, where do you believe the constitution draws the line . I think the general line is easily stated and that is with respect to legislative subpoenas, hafted figure out on we have to figure out on what the legislation would have. We are skeptical of the case study analysis. There are some subpoenas that relate to potential ethics legislation and congress is interested in the finances because they want to know, maybe we should change our Financial Disclosure laws. That is one set of subpoenas. The other relates to an entirely appropriate subject, and that is a wrongdoing or potential fraud in the banking industry. I think everyone should agree that is appropriate for congress to legislate on. That is what i would like for them to legislate on. But the stated reason for asking for not just President Trumps information, but is grandchildren, every check written on their behalf if they needed a case study with respect to this issue. The other pointed out a nice argument. Foodess can surely pass safety legislation, but does that mean they can demand a lot eats andhing that he get more granular . That illustrates a limit on the Investigative Authority that is that congress can pass legislation and one of the limits as they cant expose private affairs solely for exposure they cannot substitute investigation for legislation and so on. The second set of subpoenas nicely illustrates the limits that congress can legislate but cannot trample on private rights. Thank you for that. You can legislate but not trample on private rights, and that would involve issuing subpoenas with the peer purpose of harassment the pure purpose of harassment. There was a version of what the presence the president s lawyers were saying as well. Justicebreyer and ginsburg both talked about this. One said, are you saying the subpoena done at the time of watergate unlawful, yes or no . It said that was ok but it didnt involve impeachment. Said, as for Justice Ginsburgs question, i would like to know in watergate they gave contested material involving the workings of the president ial office to the prosecutor. Why is it that whatever standards apply to personal papers, why isnt that a weaker standard rather than a stronger one . Tell us about what Justice Breyer was getting at and what you think was suggested. Thingsof the interesting about the subpoenas is precisely that they were not going after public records or conversations between what the president might have had with top aides, as was the issue in watergate. There also claims of privilege in other cas