Welcome. I serve as president of the jesse helms center. Located in North Carolina just outside of charlotte we are a 501 c 3 nonprofit that houses youth programming as well as hosting lectures with the Heritage Foundation and others throughout the state and the country. So why the helms center lecture quick. Lets play the panel to do is we will hear the first case then we will take a brief recess, then we will hear the rest of the calendar, so i will call on the calendar as to the first case rain now and then i will call the calendar on the remaining cases after the recess, trump, Donald J Trump versus serious and all. Before i do that let me just read and as a matter of housekeeping for all concern just to read into the record or the agreement that we understand is now in place. I am quoting from the joint letter to forbear enforcement of the subpoena between the oral argument in this matter october 23, 2019 and ten calendar days after the court issues its opinion on the following conditions. Number one and he certiorari in this matter will be filed in the Supreme Court within the forbearance. Any opposition will be filed within seven calendar days from the petition. Any reply will be filed within three calendar days from any opposition. Should any filing date specify fall on the weekend or the holiday federal rules of appellate procedure shall control. Should the appellate petition for certiorari will be can requested that the Supreme Court hear the case and the current taint term and then further forbear enforcement of the subpoena until the Supreme Court either deny certiorari or issues an opinion whichever is sooner. Third, appellant will immediately withdraw all pending motions in this court. That i understand to be your understanding. Thats right. You may be seated. Me and please the court. This appeal presents two fundamental issues prickle first, whether the District Court should exercise jurisdiction or abstain as it did. Second if the District Court shouldve exercise jurisdiction if it was invalidated of the subpoena under temporary president ial immunity, we feel those papers as to both questions and that the court would enter judgment. Both sides will have all the time that you need to make your points. As i understand your complaint. You allege you began producing documents to the das office in response to the Trump Organization subpoena until you learned that they purported to cover the tax returns as your adversary informs us in your brief the Trump Organization has made for productions that is two after the lawsuit was filed. Are you objecting now to the entirety of the subpoena . Or is it limited to the tax returns quick. We are objected to the entirety of the subpoena. The entire subpoena as an inappropriate fishing expedition and while the president has declined and might otherwise have had the authority to invoke with respect to other subpoenas. Why would that pick up the organizations . Certainly immunity extends to the president. But that is different it seems to be someone from the department of justice view as to immunity. As to president ial immunity. I dont think there is real daylight between our position and the department of justice, i will answer both questions in order. With respect to the extent of the organizations those are targeted not just respect with respect to them but to the information of which they have possession. There has to be the anticircumvention rule otherwise they dont work. You can imagine a multitude of scenarios one scenarios that is personal records of the president. You are ignoring the Corporate Forum as these entities operate to conduct business. That is true there also wholly owned by the president and they do hold his personal records and those are being sorted out. And this raises a broader question that there are things the District Attorney could have said that could have made this case somewhat different and your question raises those issues but the District Attorney has declined to do so, to say the president is not a target has declined to say they are not investigating the president through these efforts, so that is the record in which this case arrives at the court. Is it your position the other persons who may be involved in this cannot be investigated at all as it implicates the president. Not necessarily we are in a handicapped position we have not seen the redacted portions we can only speculate as to who they may be in what the relationship might be. The issue is not who is being investigated but of criminal process to the president. Let me ask about the temporary absolute immunity seems in a criminal case the consensus seems to be yes there is absolute immunity from the briefs and the decisions but they all seem to say it applies once you get to the point of indictment. Not before that otherwise nixon would be a problem and just a subpoena was permitted in that case. How is that different when its just a grand jury subpoena not even a trial subpoena . I do agree that there is a consensus around the core idea of immunity. I think that reaches back at least to indictment certainly that story as quoted but with the bork brief supports that broader view remember that was the agnew grand jury investigation and in the course of that brief it explains why the Vice President did not have this kind of immunity but offered reasons why that would be with the grand jurys work that this is important and said at the end of the opinion this is not true with respect to the president that was a grand jury investigation and subpoena. What about the moss memo. That seems to suggest there are things that can be gathered while the president is still president even if he cannot be indicted while in office. The answer is yes but its not the things he gathered from the president. But the tapes gathered from the president of the United StatesSupreme Court in the unanimous opinion they will be disclosed even with executive privilege argument that there is no application to president ial immunity to preindictment subpoenas in that case. First the president was the third party and not the subject and we remain at that motion to dismiss stage. But everybody knew in those days the ultimate target was the president everybody seems to believe here that ultimate target could be president trump. We dont know that but it walks and talks that way. We have a popular understanding of what was going on but the Supreme Court would not allow the judicial decision to be driven by popular understanding, in fact it was careful when it went to that cross petition as if the president could be the unindicted coconspirator to preserve the question. I dont think any opinion then resolved it wasnt invoked like this in nixon and in cases like that the president claimed unqualified. You think they just overlook this in the nixon case quick. Maybe not. Again the president in the other cases every president will have to make his own determination of when to invoke as president nixon chose to not to invoke it the president has in other cases like in fitzgerald. So there was a trial subpoena part was clear that there isnt even more pressing need for the president to disclose hiS Communications because there is six men rights and that is true of the burn case as, well the rights of the defendants were at stake in those cases as well. Not just special prosecutors, they do talk about they to prices but here is a special prosecutors to subpoena for the tapes, it was in the defends. I completely agree, i mean in the opinions, particularly in the nixon opinion part of the courts reasons for that there are both parties having access to the testimony for the trial, but lastly even if the court thinks and nixon applies on all fours and we did not, this goes back to your original question about the department of justice, at a minimum the subpoena mom would have to be the nixon standard, and a new record for this court it is difficult to see and i havent seen the onepage redacted material so perhaps the court has, its difficult to see how a subpoena asking for more of a decades worth of Financial Reports relates specifically and the targeted fashion that is issued, whether its too broad that is something that can be addressed, but your position as you said a moment ago is that immunity is absolute and so if the president were to commit a crime, no matter how heinous, whether he did before he took office, he did it before he took office he could not be the subject of anything, even in the investigation, thats the position. Yes, of Course Congress retains the impeachment power, on the other side of this at the constitution it makes clear, the president like all the citizens is subject to the laws and jurisdictions of states, the question before the core. The premise is that this is a distraction, it distracts the president from carrying out his duties, where is the distraction if the subpoena has served accounts, the president doesnt have to do anything to comply with the subpoena. So to outsiders, so the question is not about this subpoena, its about what would happen if all 50 states were unleashed to engage in any kind of investigations, criminal investigations, i think it is difficult to sustain the proposition, i think this issue is made even in the civil area where they were afraid, where this would not lead to a proliferation of the investigation of a president that could go beyond one third party subpoena. That was one of the are moments in the clinton forces joan case, that did not happen, right . History will judge whether that prediction was correct or, not im not here to dispute it, i except the decision as it is, i think this court has to make a difference judgment, this is a different category. Has a different from federal grand jury subpoenas, theres 90 u. S. Attorneys. There are a lot of u. S. Attorneys to, why is it any different when it is state grand jury. Because the attorney exercises control at the end of the day over all of them, so you have a centralized that may not always be true. Some of the practical realities i think go both ways. Your honor that may be true but i think the practical reality of the Political Considerations that would necessarily infiltrate unleashing states to engage in this kind of broader reaching sitting president. Why can we think of this case in a narrow sense, that is to say that we are not confronted, we dont have to confront the question about whether the president is immune from indictment and prosecution while in office we dont have to consider whether the president may lawfully really putting documents for a state criminal proceeding, the only question arguably that is before us is whether a state may lawfully demand production by a third party of a third financial records, for a grand jury investigations while the president in his office. Your honor, on the third party issue which i think is the most difficult issue, the issue from the Supreme Court makes it clear that when you seek records from a custodian you cannot simply pretend that those are not a subpoena ultimately directed at the party who interested in the custodian with those records, that would allow for an enormous poll around the rights of individuals, and not just in this case, that would create an enormous loophole for all people who would trust the records you want to invoke their Fourth Amendment rights or other privileges like Attorney Client privilege this is the law of privilege and thirdparty custodians, not president s. That happens a lot towards the lowers records, the psychiatrist records and the potential defendant who tries to squash those because of privilege, why cant you do that here . Well here theres a dispute about whether that is even available as a third party under new york a law, we are not pressing that issue here because ultimately the there is no exhausted claim in 1980, three and its not about whether the president should have chosen or internal to evoke this, when we think the law is rather clear that a dispute between federal government and the stage before the president has immunity from state process is not a case in which the federal court would exercise it to power to abstain and not here a case in which it otherwise has a clear jurisdictional dispute. What is your response to the view that, you know a president could basically insulate himself from any state Court Proceedings by invoking section 1983 to get into federal court. I think anyone, not just the president can invoke 1983, any individual and be heard in federal court, they may not have a winning claim in federal court, they may be dismissed but i dont think, the court has been clear to respects, one there is no requirement that is completely clear, and second, the anti injection act do not require them to bring their claim so this is not. What is in 1983 claimed . Its the immunity claim. The president s immunity is being preached. Communities usually started as a defense, what is the 93 cause of action . It refers to immunities held by law, so it is textual basis, moreover the Supreme Court has made clear that these kinds of immunities are available, it is held under the constitution, no difference in someones right to the claim against, the credit clause has been a basis, and the Supreme Court, i think it was pretty clear that it is not going to pick and choose among Constitutional Rights to say this one is good enough to bra, its not officially important and you must be kicked out of federal court. Can i ask, you how would your argument be different if this was a subpoena from a grand jury in the Southern District of new york and manhattan, a federal grand jury pursuing attacks investigation, how would your argument be different to stop that subpoena . I think there would be some subtle differences, i think in the overarching view we wouldnt be entirely different, of course the president himself has not involved with respect to federal process, this is not a direct answer, because he believed those investigations were handled appropriately, properly, was sensitive into the office, of the subpoena which is a photocopy of a congressional subpoena mostly unrelated. Its different, now another point your honor, i think this issue of control over the u. S. Attorney, i think that argument could be made i think its a different case because you might say i dont expect there to be a proliferation of litigation that we think is part of a state subpoena, there is obviously more of a history of federal prosecutors and things like that, i think it is a harder case, i think ultimately there are good arguments for immunity there as well but weve never had to cross that bridge. Could you explain to me a little bit more about what is the harm that your client would suffer if financial attacks documents were disclosed to the da and to the grand jury, as i understand it state and federal tax authorities already have at least some of these records, so how would disclosure to another state authority cause additional harm. First any bridge creates this, harm they make this point quite well, so we are aware of no immunity case where the more courts as well youre ready has been breached but its not irreparable harm, that is the essence of immunity, no more than having to have this in a double jeopardy situation. Second, i think the average citizen could be asked the same question, your tax records have been disclosed to the irs why not just turn them over to a grand jury, i think there are obvious reasons why any citizen does not want their information exposed to a grand prix if they have a lawful right to not allow that to happen, third the law here, this is unique to the president is changing rapidly as we noted in our brief, there have been changes to new york law that have been taken what was once protected information and made it less protected or are not protected at all, lastly, it is unclear what would happen at the end of the investigation, i dont know the answer to this question but if an indictment were issued on to someone else they could be exposed, could the grand jury issue a report at the . And exposing information and, i dont think there is a guaranteed of that, i dont think the District AttorneyNorthern Court could guarantee that the president s personal, Financial Information would not be exposed, so i think collectively all of those provide ample bases for injury, but i dont think its not clear to me the issues are viable concerning the agreement between the parties. I just want to nail this down, the District Courts say that its uncontested that they investigated conduct that occurred in new york state, do you contest that the District Attorney and the grand jury are investigating conduct that falls within their enforcement or distinction. I dont see it as a material. Do you contest . It im prepared to stipulate to it without conceding to it for purposes of adjudicating this dispute, i dont think it is materials whether they have the right to see these documents, whether they have a basis and state law does an answer where they have a basis and federal law to secure these documents. Thank you. Thank you your honor. Court im carry done and i joined by my colleagues, together we represent the District Attorney of new york county, i would like to pick up where i think the court started this, morning that is to put it bluntly the claims to come down to his tax returns i believe, we wouldnt be if we had ignore the obvious conclusion that those returns are relevant to what our grand prix is looking at, the counsel told us flatly that he would never agree to produce the tax returns so we decided that we had an obligation to look at all the facts, that we were not for bear, these reasons get to your honors question about irreparable harm, first obvious s