Transcripts For CSPAN Trump V. Vance Oral Argument 20240713

The case then we will take a brief recess then hear the rest of the calendar. I will call the calendar as to the first case right now that i will call the calendar after the recess for the remaining cases per code donald j. Trump versus silas vance. Before i do that let me just read and you can stand there as a matter of housekeeping for all concerned, 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. [inaudible conversations] both sides will have all the time that you need to make your points. As i understand your complain 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 those two terms as your adversary informs us in your brief the Trump Organization has made for productions that is to after the lawsuit was filed. Are you objecting now to the entirety of the subpoena . Or is it limited to the tax returns quick. 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. [inaudible conversations] why would that pick up the organizations quick. 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 in 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 anti circumvention 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 it arrives at the court. Is it your position the other persons who may be involved in this cannot be investigated as all at all as it implicates the president quick. 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 disagree 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 quick. 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 States Supreme 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 would be 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 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. They modesta 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 and there is even a more pressing need for the president to disclose communications because there were six amendment rights that has been overlooked in the briefing that the rights of the defendants were at stake as well. Not just as a special prosecutor but the subpoena but it was a special prosecutor subpoena not the defendant. I just mean in the opinions and as quoted it was that there are both parties with testimony before the trial but even if the court thinks nixon goes back all four and this is your original question about the department of justice, add a minimum it has to meet the nixon standards and it is difficult to see i have not seen one page that has been redacted is difficult to see how a subpoena asking for a decades worth of Financial Reports relate specifically and in a targeted fashion. But thats at issue if it is too broad . So if that can be addressed but your position is that immunity is absolute. If the president were to commit a crime no matter how heinous if he did it before office or after he cannot be the subject of any investigation. Yes. And Tell Congress receives impeachment power and as the constitution makes clear is subject to the laws of states and the federal government. The premise is that this is a distraction from the president to carry out his duties the president doesnt have to do anything to comply with a subpoena. To answers its not about this subpoena but what would happen if all 50 states were unleashed to engage in any kind of criminal investigation of a sitting president. Its difficult to sustain that proposition that was made even in the civil area where the court was hesitant that that would not lead to a proliferation of investigation of the president with one third party subpoena. That was the argument in the clinton versus jones and that did not happen. History will judge of that petition was correct im not here to dispute it but the court will make a different judgment as a different category. How is this different from federal grand jury subpoenas . There is a lot of us attorneys. Because the attorney general exercises control at the end of the day over all of them. That may not always be true. But with those practical realities cut both ways but the court to go back to the reality of those Political Considerations that unleash those states of those broad ranging cases of a president. But to say we are not confronted we dont have to confront the question if the president is immune from indictment and prosecution while in office. You have to consider they have to produce documents in the state criminal proceeding the only question before us is if a state may lawfully demand production by a third party from the personal financial records for use in a grand jury investigation while in office. On the third party issue the paradigm case it makes clear when you receive record from a custodian you cannot pretend that is not a subpoena ultimately directed to the party that trusted the custodian with those records that would allow for the enormous loophole and not just in this case but in enormous loophole for those that want to invoke their Fourth Amendment rights or privileges or spousal privilege. This is a lot of privilege and thirdparty custodians. But the lawyers records and psychiatrist records and the potential defendant tries to wash those because of privilege. But here its about if that is available as a thirdparty but we are not pressing that issue here because ultimately there is no exhaustion and requirement in 1983 the question before the court is not if he should have chosen but if he was entitled to invoke this one and we think the law is not clear the dispute between the federal government and the state where if he has immunity from state process is not a case the federal court would exercise equitable power and not hear a case that has clear jurisdiction over the dispute. What is your response to the view that a president could insulate himself from any state Court Proceedings by invoking section 1983 in federal court quick. Anyone any individual could be heard in federal court they may not have a claim and it may be dismissed but there is no exhaustion requirement. That is completely clear and sec went on second equally clear that anti injunction act does not require individuals to bring their 83 claims. What is the 1983 claim quick. The president s rights are being violated by the District Attorneys office. The president s immunity is breached. That is asserted as a defense what is the cause of action. It refers to immunity held by law so it is on a contextual basis moreover the Supreme Court has made clear these kinds of immunities are available in 1983 a right held under the constitution no more than a Commerce Clause or the credit clause. With the Supreme Court was pretty clear that it will not pick and choose among those Constitutional Rights to say this is good enough for 1983 but somehow this is not sufficiently important and now you are kicked out of federal court. How would this be different from a subpoena of a grand journey on jury in the federal grand jury pursuing a tax investigation . How is your argument different to stop that subpoena quick. There would be subtle differences and not entirely different the president himself has not invoked these causes and this is not a direct answer but those investigations were handled appropriately and properly with sensitivity to the office this is a photocopy on mostly unrelated my time is expired. Please continue. On that point the issue of the us attorney the argument could be made it is not applicable here i think its a different case because you may say i dont expect there to be a proliferation of litigation to a state subpoena and obviously there is more history of special prosecutors. It is a harder case but our arguments are from immunity as well. Can you explain to me a little more what is that irreparable harm your client would suffer if financial and tax documents were exposed to the da and the grand jury . I understand state and federal tax authorities already have these records so how is disclosure to another state authority causing additional harm quick. Any breach of immunity the us brief makes this point quite well. We are aware of no immunity case where the court says the immunity has been breached but not irreparable harm that is the essence of immunity no more than having to partake in a double jeopardy situation. Second the average citizen could be asked the same question your Attack Records have been disclosed to the irs why not send them over to a grand jury . There are obvious reasons why any citizen does not want their information to exposed to a grand jury if they have a right to not allow that to happen. So the law is changing rapidly around the president there have been changes to new york law that has taken what was once protected information seemingly making it less protected or not protected at all. Lastly it is not clear what would happen at the end of the investigation that this information could be publicly exposed to the grand jury issue a report . Because there is a guarantee that personal information will not be exposed so collectively all of those provide a basis for irreparable injury unless the court will remain and to the District Court its not necessarily anymore between those parties. The District Court says it is uncontested with that conduct that occurred in new york state. Do you contest the District Attorney and the grand jury are investigating within that enforcement jurisdiction quick. I have not conceded i dont think that will see that as material. I am prepared to stipulate without succeeding but i dont think its material that they ever right to seek these documents if they have a basis in state law doesnt mean they have a basis of federal law to securities documents thank you your honor. Good morning your honors if it may please the court i am joined by my colleagues today together we represent the a District Attorney of new york county. To pick up where we started to put it bluntly the appellants claims do come down to his tax returns i believe. We would not be here if we ignore the obvious conclusion that those are relevant to what the grand jury is looking at. The appellate counsel told us that he would never ever agreed to produce the tax return so we decided as an obligation to look at all the facts we would not forbear for several reasons. These really do get to your question about irreparable harm. There is no such thing as president ial immunity for tax returns. This is about executive communications with matters of state or diplomacy which was the concern central to next and. As i take it concern of your adversary is not just with respect to tax returns but the subpoena copies the congressional subpoena which relates to things like the Washington Dc Hotel where there is some question of its relationship to the new york investigation. There are two things embedded. The repeated complaint was addressed on the record in the District Court but just so its clear really that all their claim of harm what it comes down to is explained in the District Court, the simple reason to rely on the earlier subpoena from the house and this is not unusual in our practices having learned from public sources there was a subpoena we decided to use the same language to make it easier on the Accounting Firm to produce the same material they were already gathering for the house. They could object to our subpoena on the basis of harassing or burdensome or Something Like that. With respect to the question within that subpoena yes there is a hotel in dc for example but an office like ours even though based in new york is commonly investigating transactions that have tentacles all over the country sometimes extraterritorial he as long as there is a basis to allege there is a grounds or jurisdiction on the island of manhattan in this case and there are many cases that happens by virtue of where the transactions occurred or tendered or financial monies were exchanged and it goes without saying that the headquarters of the appellants businesses are here in manhattan so it shouldnt be a surprise that our subpoena happened to mention transactions that involve properties for other things of value outside the island of manhattan. Does your office commit to preserve the confidentiality of any and all responsive documents quick. Yes we do we are bound to do so under criminal procedure law. Congress went to see something. We cannot oversee congress and that is the question of irreparable harm. The other governmental bodies that receive these tax returns in the first place already have their own secrecy obligations. But one of the arguments at the end of the day they could be publicly disclosed and therefore the harm. The short answer to that is there is no privilege for tax returns whether the president or anybody else. Yes he may view them as sensitive or embarrassing but if they do get subpoenaed all the time and financial investigations. Sometimes at trial that leads them to be made public or in court i just dont understand where the centrality of the secrecy comes from. Yes, we are obliged to abide by grand jury secrecy, yes they have their own obligations to not turn it over publicly, but the Accounting Firm does not have that privilege to interpos interpose. They are making this up is all i can say. So this absolute immunity for a criminal trial while he or she is in office do you agree there is some absolute immunity from a criminal trial while he or she is an office quick. Obviously thats not the case before us. That issue has never been decided by any court that i am aware of there are the memos that apply to that there is a dispute with the analysis of the effect. Its hard for me to say there is no circumstance under which a president could ever be criminally charged. But i understand the sensitivity would be very disruptive. Assuming the absolute immunity from indictment and criminal trial while he is sitting as the president. Lets assume that does not extend before that in proceedings like United States versus nixon. Lets assume there is a subpoena complied with because its not at the stage where the absolute immunity kicks in. So how do we know . What are the mechanics . If you get a response to the subpoena then you see something that looks indictable then do you notify people who seek the indictment next wednesday against the president with a 1983 case . Or Something Else you better do it now because therell be an indictment issued quick. Understood. The practical answer to that question that is not right at this point we agree with the rulings of nixon simply there is no basis to object at this point if there is immunity or not or not. As a practical matter that in that longrunning grand jury investigation it is almost unheard of for the lawyers that are representing a look back in the grand jury investigation under procedural law is so wet that does is obligates an office like ours to provide notice to the defense whenever we get to a point in the investigation where we are contemplating putting charges and reading charges to a grand jury for consideration of possible indictment. Here it would ache, give the defendant the right to testify before the grand jury, that number two, put them on notice now if they went to interpose a claimed immunity from indictment based on the constitution. Let me press you. Word that extension still be appropriate . If you indict the president and he sued in federal court to enjoin that prosecution quick. Yes it would be the same position we take right here. In the first instance first of all we would dispute there is a blanket absolute immunity to say it has to be a balancing test looking at those factors and circumstances but yet again the state courts under those principles are not only required but perfectly well capable of a constitutional claim. But is the presidency different quick. The argument in part would be the president is challenging the constitutionality of him having to submit to state prosecution and that this should be something that is resolved in a federal for him that the concerns of your abstention in part is comity but that washes away when there is already the inherent conflict between federal and state authorities. At i agree and i dont want to sound insensitive to the concerns of the office of the president but the difference is if the conduct that gave rise to a potential criminal charge was conduct related to the president s official duties in office then that would raise a supremacy clause issue. But it is under the current fact shouldnt those questions be resolved by a federal court . As a supremacy clause issue to bring this action. Shouldnt that the federal courts decide quick. I believe this is in his personal capacity on private conduct and he cannot turn this into an act of the sovereign to say i am the sovereign and the sovereign is me. Were talking private personal conduct of business transactions entered into largely before he was in office. That belongs in state court. So let me press you again under younger are there any circumstances you can envision where the president could get into federal court with an ongoing criminal proceeding. If what was investigated was his conduct in official duties or official wrongdoing, that could amount to an extraordinary circumstance to have the court keep the case but of course thats not the case here. He brings this action as a private citizen thats what the doj brief says. Hes not bringing this in his official capacity on behalf of the Us Government thats why he has private lawyers representing him. Notwithstanding in the principal brief he does maintain he brings the case both as a private person and as the sovereign which i just dont think to be the case. And finally all this concern of staying in state court not only is the federalism concern and the obligation to hear constitutional claims but dont forget at the end of the day if he doesnt get the relief that he seeks in the state itself and they can go to the Supreme Court thats the backstop. With the supremacy clause the use of the word convicted does imply arguably that you cant bring proceedings until after the impeachment process has played out and there is a conviction what is your response quick. I understand the language and the implication again thats not here we are here on the subpoena that was long settled in 18 oh seven. But to again with these memo questions hypothetically there could be a charge brought people could argue of the implications against that are other provisions. Again hypothetically it is bootleg entertainment you can invent scenarios where you could imagine where it would be necessary or a good idea for a sitting president to be subject to a criminal charge while in office for example if you did pull out a handgun. What is the impact of that . Do they keep from restraining such person or processing . Do we have to wait for an impeachment proceeding to be initiated . Certainly those memos dont answer the questions but im not sure the supremacy clause is the way to answer them either. The department of justice brief, there seems to be differences between the departments position in mister trumps lawyers position. Could you speak to that quick. One of them is they seem to maintain its flattened hes not bringing this in his official capacity representing the United States and thats a flat contradiction in terms of what capacity he tries to assert as a sovereign that brings those sovereignty principles that dont belong in litigation. The other thing that is different in the doj brief is they actually contemplate the president in this position should allow the subpoena to be complied with this is a test which is undertaken which is a red herring. Speak to that why is it a red herring and how do you assess quick. What it means is that yes he has to respond by producing documents but that means he is not immune from investigation in the first place that is a fundamental contradiction to the absolutist point that is being abrogated so not only did nixon long line of cases stand against him but the doj is not supporting their position. With a new suggestion there should be a needs test overseen by the court i believe what they look at is the language in nixon the first of the sitting president is subject to the subpoena process and it was a quick yes. At this point that is the question so dont forget the tapes at issue were recordings of the president S Communications in the oval office with his top advisers which then raise the question of executive privilege and if there are sensitive matters and that raised the need to make sure those tapes were reviewed with attorneyclient privilege review that those types of state privilege materials were segregated out and responsive to the subpoena. This is all private business transactions that there are matters of state that need to be protected no approval no privilege that applies it is one ball of wax they are confidential and there is no need to have that magistrate trying to oversee the production and i dont know by which standard they try to weed out those that are producible or not. Its not that good of analysis. If we were to disagree with your view as to whether this case if it should go to a federal forum that the extension does not apply but the view is that you could still prevail along the lines of the alternative ruling of the judge. Yes. Our requests so there is no confusion is that this Court Affirms on both grounds it is on the Public Interest to have the younger immunity question as well as the grounds for denying injunction relief. So if the extension were not to happen we would ask the court to affirm the District Court on the basis and most importantly because of the lack of success on the merits. With the District Court with the continuing supervision so if it was properly dismissed because they would be other steps along the way where these issues need to be resolved by a federal judge quick. As i look at it everything has been fully briefed and the District Court certainly did not rule on this as a preliminary injunction with full meritbased injunctive relief if this court upheld that decision, maybe theres a trip to the Supreme Court but i dont think they have to look at anything going forward. Was at a permanent injunction quick. He dismissed the complaint and with that decision on the injunction. And to say there would be any further proceedings in the District Court. What about the next subpoena quick. Which subpoena quick. The one youre thinking about right now. [laughter] do they file another 1983 action to other institutions quick. Not if this Court Affirms the District Court that would be binding precedent. Just to be clear, we are hamstrung significantly by the lack of documents we are seeking that the investigation is proceeding there are other subpoenas outstanding nobody should be surprised by that but we dont think we should have our hands tied by not being allowed in any other ordinary case to get the basic business documents that would shed light with criminality or not im out of time. This case seems bound for the Supreme Court. I think both parties see that as an inevitability. No further questions. Thank you your honor. I think its important to frame where we are and where my friends position is, which is lockstep with the District Court. There is no immunity for action of any kind the president can be indicted and arrested and convicted while in office by the state. They have not ruled out the president as a target of the investigation which is the basis from shifting the immunity doctrine from nixon and clinton to the thirdparty doctorate of nixon versus the United States. Summit makes clear the president is a target. It is clear that we are objecting to the entirety. This entire subpoena is a fishing expedition. And i give him credit to explain. Is it your view they are not seeking the tax returns for a legitimate investigatory purpose and they are doing this just to embarrass the president . Is that the argument quick. We do believe there is evidence of that. Certainly in their brief when pushed on this point the responses the impeachment is it going the way they want he said he would disclose them other president s have. This is not a policy disagreement not the basis of an investigation. And the District Attorneys or us attorneys will act in bad faith is that the concern quick. I would not say everyone. Even clinton the jones when this can proceed but its important we are explaining the federal court local pressures may apply differently in a state forum. The court may agree or disagree but that was the unanimous judgment of clinton v jones. What about the fifth avenue . Once the president is removed from office, this is not permanent immunity. Were talking about while in office. Nothing can be done that is your position. Thats right. Gathering documents that could be used later once the president leaves office that cant be done quick. It can i met with respect directly through his custodians. We have not sought to enjoin. It is proceeding that the Vice President agnew tried to take in his case. We are saying criminal process with a sitting president that they have not ruled out a case as a target falls comfortably with the immunity that i think has to be accepted. Is this really about the tax records quick. It is not. It is about the subpoena. The president has complied with a multitude of requests from federal and state officials. And i really do think your honor the other aspects of the subpoena highlight the impropriety. There is no argument based on what we see that ten years of statement of Financial Condition or relevant. And one last point about the Us Government position and nixon. Two points. Clinton v jones answers a question in the official capacity it to be represented in the case in a civil lawsuit based on unofficial conduct with five private attorneys and the Supreme Court said he can raise immunity doctrines and that preposterous. He did not prevail but he was defeated by the nature of the court. The department of justice has said and i think their brief is clear, they say you could avoid the different colt constitutional question the argument raises by adopting the nixon position that could be applicable with the sensitivity of the office that standard applies beyond privilege and helpfully makes clear. In my final point if you take the subpoena and it spreads in scope then apply nixon and apply that standard i think it is impossible to sustain a subpoena if they think further proceedings are warranted on that basis that i could read and the District Court for review and to make an evaluation of this kind of subpoena meets the heightened burden requirement in the particulars and if the court were to do that we ask the status quo be maintained because we are clear there is no promise that these records will remain sealed forever. That is all that is required to meet irreparable injury putting aside immunity. Thank you your honors. Thank you for your arguments. Our panel is committed to proceeding deliberately and deliberative lee. We have a feeling you may be seeing each other again in washington. Thank you for your argument. We will take a ten minute cspans washington journal, live with news and policy issues that impact you. Tuesday morning, former Florida Republican congressman bill mccullough will join us to discuss the politics of president ial impeachment. Former clintonh, Administration National security official talk about the implications of the ukraine phone call. And the executive director gabe roth will share the findings of the new poll on understanding and opinion of the u. S. Supreme court. Watch cspans washington journal live at 7 00 eastern tuesday morning. Join the discussion. Here is a look at our live coverage tuesday. Cspan, fbi on director Christopher Wray joins other intel officials for a Senate Homeland Committee Hearing on domestic threats. Cspan2, the senate is back at 10 00 a. M. Eastern to consider judicial nominations for the u. S. Court of federal claims and the ninth Circuit Court of appeals. A Senate Judiciary subcommittee takes a look at Cyber Threats and preventing data breaches. That gets underway at 2 30 p. M. Eastern. Earlier today, the chair of the house intelligence committee, adam schiff, spoke to reporters about the impeachment inquiry. He discussed the release of the first transcripts from the closeddoor depositions and said the foreign administrations who failed to appear before the committee would be considered further evidence of the white house obstructing congress in its impeachment probe. From the capital, this is 15 minutes. Good morning