Transcripts For CSPAN Review Of Supreme Court Oral Argument In Cases Involving Subpoena Of... 20240713

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 cases, when came up in the second case. In those instances, the court has recognized that the executive branch has a need for confidentiality. You have a strong constitutionallybased interest. In this case, what you are talking about our subpoenas going for private information that is not privileged. It is in their party hands and there has never been a claim of privilege made against it, even attorneyclient privilege. It is also the case that when you are making a claim of executive privilege, it is call on the executive branch to make that claim and pass it and then you do the assessment and the burden switches to congress to justify why it needs it. In this case, when you have subpoenas trying to get private information, what i think breyer is getting at is in parts, those are the types of contexts we usually think there should be a claim of some kind of special privilege, just because you are the president. I think the are you with that was made against that was there was concern about harassment and potential for harassment that is specific to the president. That could be, if you start investigating legislative purpose to get at that, then you have a problem of courts second guessing. Second interesting that there really is, if you look at it in terms of historical practice, which does come up in separation of powers cases and you look at what the pattern has been, not only had the branches negotiated it out, but there has been a practice of the subpoenas and brought claims of privilege or president ial protection and so i think one of the things that breyer was underscoring was , we have had pretty intrusive subpoenas of the president in the past, why would we think this of his private information that isnt privileged, is even at that level that was sustained . Thanks very much for that. Andy, could you address the point that she raised about history. Justice sotomayor said there is a long history of congress seeking records and getting them , ever since 1792, with as for personal papers from president s and these arent even his papers. They are subpoenaed to private entities. They are not covered by executive privilege. Justice kagan asked the same version, she said this isnt the first conflict between congress and the president. What it seems to me you are asking us to do is put a 10 ton weight on the scales between congress and the president and to make it impossible for congress to carry out its oversight function where the president is concerned. I wonder whether that fact isnt good reason. What was the answer to that historical record and what is your answer . Frustration by the historical because i feel they were analogous. With respect to the watergate tapes, it is one thing to have a grand jury subpoena with respect to the president s records. Grand jury isnt bound by the same thing congress is. We have been saying that congressman issuing a subpoena should activate legitimate purpose purpose purpose. The grand jury doesnt pass last just the mere fact that a grand jury has the authority to get tips from the president doesnt tell you that congress has different Legal Standards that apply. With respect other historical incidents, these were voluntary disclosures. It was reference to that president nixon turned over his tax returns on taxation. He did it voluntarily, at least in a legal sense. He told congress, i want you to examine right returns. There wasnt a subpoena for his records. In some of the historical cases come with Thomas Jefferson and so on, there was a subpoena. But these were circumstances in which the president wasnt the target of the investigation. The president may have had materials that were relevant to someone elses wrongdoing. So the president has been subject but not in the context of a congressional subpoena which is bound by the legitimate legislative purpose standard. Not to say these historical examples arent on point and doesnt mean president isnt correct here, but it is a little bit comparing apples and oranges with respect to historical examples. Other president s have turned things over and there is no difference here. With respect to the president s by some asng held the president itself is a little bit of a red herring. Even if he had a massive trove of documents on his own computer, if there was a subpoena for them, he, himself would not sit and categorize and document all the materials. He would be consulting with others on what is within the scope of the subpoena. There would be a burden on him in the same way there is a burden with respect to documents held by a thirdparty custodian. He still has a right to determine whether some of those documents may be outside of the scope of the subpoena or privileged. Thate, just the mere fact it is a legal term that he has standing to sue and that implies that he is harmed by the potential disclosure by his records to congress. He has a personal stake in this. Otherwise we wouldnt be in court. I dont feel the same way that others do about the fact that records are held by someone else. It is a function that i dont think makes much of a difference. Thank you for those points. Some justices noted Justice Alito said in practice we know they are going after the president and it doesnt mean it will be burdensome to him. I also hear you say that interestingly, in your view, the standards for a grand jury should be lower, as long as it is relevant the grand jury should get it. Whereas for congress, you might want a higher standard, like being relative to a legislative purpose. Justice ginsburg raised an interesting question and put it in a stark way. She said, to impugn congresss motive makes no sense here when even the policeman on the beat as he stops a car and gives a reason the car went to the stoplight, we dont allow an investigation into what the subjective motive is. Here you are distrusting congress more than the cop on the beat. The chat room, and he is at columbia and he asks, didnt the Supreme Court reject arguments about pretext and why it shouldnt the Court Deference to the house says for the legitimate purpose . Should the court differ to what they say the legitimate purpose is . Manythink in general, and instances the court has been reluctant to do purpose scrutinizing inquiries and legal challenges. I think it recognizes there are some instances where that might be appropriate, but we are talking about a coequal branch and they are hesitant to do so. Trump versus hawaii is one where there was a big deference given a legitimate purpose period would be surprised if the court goes on secondguessing congress purpose for that reason. If you look at the precedent, it is quite expressed in saying that we are not going to be secondguessing, we are not going to look at it and we are going to look at the subpoena and see if it is connected to if legislation could be had, for example. Arguments were made and what Justice Ginsburg was getting at and what struck me was the suspiciousness with which congress was sort of viewed at times in the president s and dojs arguments and some of the questions from the justices. It is a separation of powers issue and that means there are two coequal branches. When Justice Kagan said you are putting a 10 ton weight on behalf of the president , what she is getting at is if we do that standard that protects the president , we are hobbling oversight. Muchstrikes me is how distance we have gone over 20 years in terms of the degree to abouta claims concern burden on the presidency is diding more today than it in terms of clinton versus jones. For deference of congress, they have traditionally got more weight but today you see congress viewed more suspiciously. I just want to make one final comment. I think in the past it was done on voluntary matters a lot and i think it says something that president s didnt think they could get away with claims of resisting congressional process. The extent to which the political branches can negotiate that out and so maybe the courts dont need to come in. As a result, one of the things that is the background here in a very resistance to any congressional oversight of the stance the Trump Administration has been taken. You are getting categorical claims. In the past, you would have negotiations on the subpoena and can you combine them and not have committees and that is part of our constitutional heritage, is that these things should be worked out by political ranches. That means you cant give strong privilege to one side of the leverage to negotiate disappears. Many thanks for all of that. Thank you for mentioning the Clinton V Jones case. One questioner asks the references to Clinton V Jones back memories of a rather sleazy moment in president ial history. Can uranus what was at stake can you remind us what was at stake in who won. This was a case for paula jones accused president clinton of Sexual Harassment and she wanted to subpoena him to testify. He said he had immunity having to testify in a civil suit because it would take up too much of hishe said he had immuno testify in a civil suit because it would and p in his abilities for the office of the presidency. It would impede his abilities for the office of the presidency. That was rejected, confident that it would not take up too much of his time and he would have to give the information. Was thattevens quote they never knew the president would lie under oath, which is why it took up more time. Justice kagan also pressed Clinton V Jones. Says you are supposed to treat the present respect the fundamental claim of president ial immunity or the idea the president was different from another litigant was rejected in that case. I would like to know why these particular subpoenas dont place a burden on the president. Its the kind of thing the president ordinarily has to show in order to prevail in resisting subpoenas. So tell us about the response to Justice Kagans question and why president believes Clinton V Jones does not preclude him from turning over a person over papers. As a factual matter, i dont think society will grind to a halt President Trump has to comply with these subpoenas. That is certainly true. He has lots of advisors and free time. I dont think society will end if he has to comply. That is not the categorical, forwardlooking approach the Supreme Court has used in these cases. If question is it is not any subpoena will burden this president. President trump will not be president forever. They need to set rules that will apply for future generations. Trueinton v jones, it is and theres this infamous line from the majority opinion. We are looking back at the last 200 years and we are blessing subjecting the president to civil process in federal court, and we dont think it is likely that the president will face a deluge of litigation. Well, pick up your newspapers. The president of the United States, whether his subject or not, subject to a deluge of litigation over his twitter account, hush money payment, everything imaginable. So Clinton V Jones may be a doubleedged sword. On one hand, a presence may be subject should to the judicial process. Warninglso gives us a and will make the court think hard. Is, if wer question accept congresss standard for validating a subpoena, will that very low standard burden presidency of the future . That is why the court was giving the council such a hard time. They were looking at principles for the future and the council could just not admit any subpoena would ever be invalid. That is going to raise concerns with the justices when they have to decide this case. Thank you for noting that. Concerns were shared on both sides. The questionr said is that this will apply to a or harrynator mccarthy truman asking the same question. Its been said that he erstands correctly he understands if the information provided is too broad. How did you understand Justice Breyer in that regard and how would he draw the limiting principle . What did strike me is i thought, across the court, the justices were concerned for limiting principles. They were attuned to that concern. Been, it wasy had Justice Jones with similar concerns were raised. I agree, the council to the house struggled to give a limiting principle that would satisfy the court. , if you focus on the area where legislation could be acknowledge how broad congress is legislating power is , it doesnt seem like much of a limit. , there were hand others that were identified. I would note the one about pertinence he and could be used pertinentcy see and it could be used in another topic. It is hard to see why the president s Health Records would be particular pertinent. I guess he probably has Better Health care than most people in the United States. You also have the projections of the bill of rights, particularly relevant from mccarthy, and article six. Two, theget to article test that was established in nixon versus the general administrator and continued on ismorrison and other cases whether or not something interferes with the president s ability to perform. If the house is willing to go with that test, the president and doj are not. They wanted a higher standard of production. They did notng ,tress much, in the second case they did a good job of emphasizing this. It can be done on a casebycase basis and it came out in clinton versus jones. ,ourts are able to step in particularly you are going after the president and it looks like harassment, federal courts are able to step in. I think that is another protection that shouldnt be discounted as a way of ensuring these kind of subpoenas dont get out of hand. Thank you for that. Kavanaughrsuch and have asked the question of how congress could meet these higher standards. The answer was that congress has not specified what legislation it could enact, and in response to Justice Kavanaugh the question of how you meet case were the congress is considering general legislation, it would be very difficult. You cannot just have one sentence asserting the need. Can you answer the practical question, does congress have to say in advance what it is planning to legislate on . It shouldnt be too hard to provide a couple lines. Are held in congress not have to write a statute first. Shot himself in the foot here because subpoenas are so broad it makes you scratch on the spending habits or the spending related to Donald Trumps fouryearold grandchild. How is that relevant to Anything Congress is doing . It is a very strange demand. Every check, every credit card swipe, so with respect to the specific standard here, if the subpoenas were narrower, they would have had a better chance. F being to articulate , it couldre narrower satisfy the standard. If you ask strange things to a , you werethe street going to have a hard time articulating a particular legislative purpose. He says that if the subpoenas had been more narrow, congress could have justified more narrowly. Say that even assuming congress can legislate on this interest, what about the family members who may have been involved in these businesses and are now employed in the executive branch . Wouldnt some of this be relevant . , you can goadly broad or go narrow, but since almost anything related to the president could be relative ng, how are anythi go about thisd to without intruding on the separation of powers . That these were all too broad i am less persuaded by. Ofden in this is the issue to what extent can Congress Legislate conflicts of interest that would affect his family or disclosure . Can,u accept that congress and to rule that out would be a pretty broad claim of article hard tonity, well it is see what could come from the subpoenas. They have an Important Role developing and find tuning find tuning these. I think these are really not too broad. You could run into a problem with congress if it has to specifically whenever it is seeking something that could impact the president and has to go further along in terms of identifying specific legislative measures. Earlier, congress does have a role in overseeing the executive branch. Its an area where legislation could be had. It doesnt mean that legislating is also the primary purpose. Tubould also keep a running as far as where legislation is arising. The legislation could be really down the road. Distinction a between the Financial Services argument. The Health Records hypothetical would be beyond the pale. But this does fall within congresss legitimate subpoena power. Thank you so much for that area for that. Table the next case and we can tie them all together at the end. But trump versus vance involves ae question of whether custodian of the District Attorney of new york could subpoena the bank. The president s lawyer began by saying no District Attorney has issued a subpoena against a sitting president and asked for conditional immunity under article two. The solicitor general of the United States took a more narrow position and said there should not be complete immunity but there should have to be a heightened standard, the same standard that came from the nixon case, the demonstrably critical need for the relevant to a legitimate investigation. So tell us about the solicitor generals argument. , the United States is arguing for the nixon standard to be applied in a case where it had not been applied personalamely to records not claimed by the president to involve executive privilege. The difference is this case involves a state District Attorney and the others involved congress. How did that play out differently in this case, and why do you feel the president was correct to argue for this heightened standard . Out the doj is solicitation using a standard for a different context. The question is that while they sound like different contexts, isnt that just crazy . I dont think so. The thing to keep in mind is that we have a state proceeding here. The case innes, which federal clinton was sued, held that president clinton could be subject to civil process in federal court. The court is very clear that things may be totally different if a state court is involved. Constitutionalus concerns. We are not just going to blast civil process. Here, have criminal processes around the president and alarm bells are going off. So what do we do . We have some signs that this is not a runofthemill scenario usually, when a grand jury wants bank records, the standard in new york is that there has to be no conceivable relatives relevance something extraordinarily low. But in the office of the presidency, i believe the solicitor general is looking for a higher standard if you are coming up with a Legal Standard, why not look at Legal Standards that have been used in another context . It provides some convenient language to use in a context where you are trying to heighten the standard for a subpoena. That is why the solicitor general used it. Solicitor general first advance this theory. We have not had state prosecutors trying to subpoena president documents or documents held by a custodian. I think they are trying to bridge the gap between mr. Trumps position which was that he was just completely immune, and newarks position, and i think that is where we get this heightened need to standard. Need standard. I thought some of the justices seemed receptive to that middle standard. Not seem to break along ideological lines. Just to recap where we are, the first case involves subpoenas from congress. The majority case said a subpoena has to be issued for a legitimate legislative and not to investigate or expose the president. The second case involves a subpoena from a state prosecutor or grand jury. Is, whation here should the standard be . Thesolicitor general sank standard should be the same one the president is arguing for in the first case, a demonstrable, critical need for the information. Clinton v jones seems almost more on all fours than the other. Asks straighth out, how would you have us distinguish Quinton V Jones . Clinton v jones . Conclusionvoid the the president was not subject to special immunity . The answer to that was a lawsuit in here there are multiple lawsuits. The clinton case was considered good impact multiple president s. Asked how is this more important than what took place in Clinton V Jones . Was, what is to stop them from seeking a deposition or appear before a grand jury . The final part, Justice Kavanaugh says to explain if you can one rule for criminal cases and another for civil cases. What do you make of all that, and how do you take the justices trying to distinguish Quinton V Jones Clinton V Jones . Clinton v jones got much more play in this argument than it did in the prior. One interesting thing is that the court there was sensitive to the information of the president being targeted, but also required them to do some initial showing. Being shown ins these cases is who bears the burden when. The president wants this absolute rule of immunity. I did not get a sense of much interest on that in the court. The categorical not get a great reception. But there was a lot of concern about burden on the president. Then, the solicitor general was trying to say that given that potential, there should be a heightened showing before you go for the president. That,n versus john said first, you have to show the burden on the presidency and that it flips to showing a specific need. General the solicitor trying to move us beyond where we had been in clinton versus jones. Among the justices on the court, my sense is they are really trying to figure out what the standards should be. You have many variables here. Can weigh the burdens of that in different ways. Hand, criminal prosecution is a pretty big deal. Theres also the concern that these are steak das and state courts. And are elected officials there are concerns about the use of state process. , clinton vr hand jones, Sexual Harassment, that can be pretty embarrassing. There can be a lot of burden there. Its safe to say it took up a whole lot of time on the president. Which is more of a burden is kind of tricky. Thought the argument from new york was quite strong and very sensitive to what these concerns would be. New york is conceding the federal court would have to be amenable. State factors really mitigate it here. You have a federal court there to protect the president and that has been conceded. The difference turns on whether or not the president has to make some showing of what the burden is. Some claim of privilege or why this will be more timeconsuming. That, president does show the burden turns to the prosecutor and the grand jury to show why you need to ask for this. Note, firsting to of all, the court is generally quite deferential to state proceedings. Thingnot a trial and one identified here is that the standard identified really related to trial containment. It is harder to identify specific needs upfront. Think, is going to play in the courts some. Grand jurys are subject to rules and confidentiality. There is a lot of protection baked into the process. But i was struck by how much fine tuning there should be. I did not get the sense of a stark ideological side on this. I thought they were also with what this was how to make this really work the right way. Helpful, and i heard that. Justices on both sides were trying struggling to figure out what the standards were. That they striking District Attorney proposed the standard you had just mentioned. He said, if there is an that itive showing would take of his time, then federal courts should be open to evaluate first and objective basis for the evaluation and second a reasonable probability it would yield that evidence. The jester said, could you ask if you could get information somewhere else . Then Justice Sotomayor said, hold on a second, that sounds like a more demanding standard. Said, whystice kagan did we just ask the usual standard why dont we just ask the usual standard . For our friends who are not explain the difference between the government proposed standard and the new york standard, that there is no objective basis for the information. Why is this important in practice . Imagine the court converging on a multipartisan standard and what would that look like . Is very hard to say from these oral arguments. Sometimes, you watch cream Court Argument and everyone is talking about this one narrow issue. These ones really have a lot of moving parts. We will have a 32 opinion, a 311, Something Like that. But if you put the president in a defensive posture at the outside were to be categorically provide him at the outset, or do you provide him with a burden showing him getting the records from somewhere else. These records are from the president relate to something else. Therefore, im going to burden , and just under new york law itself, there are various offenses a person can present. Grand jurys typically have quite a bit of latitude. But i can see whether president and doj were a little concerned. Why not just apply the normal rules . The normal rules would be the grand jury is going to get virtually whatever it wants. Standards, the grand jury has an extraordinarily important unction in our society. The Supreme Court cannot trample on state courts or grands so this might have been some respect shown to those institutions as well as the president. Im glad i dont have to decide that when. That one. There is a remarkable sense of symmetry between this and the Clinton V Jones case. At the framing of the constitution, it was a general warmed for diaries and privacy that sparked the revolution. There was a series of cases in the progressive era that said we could not enforce federal regulations if businesses and others could resist subpoenas from congress and federal bodies by insisting they were private. Generally any information that is relevant to illegitimate investigation can be seized matter how private. Here, the court is confronting for the first time the idea that the president is special. That the president is a branch of government, the solicitor general says. Justice ginsburg was skeptical. Jury can get grand any information it wants for any person except for the president. Because he is the president , he should be held to a different standard because why . Because state courts might abuse him for political reasons . Say i think the president s lawyers were saying he got a categorical exemption. That mightve been his first best choice. The solicitor general probably thought the court wasnt going and was arguing i think that is where the argument is. There are a lot of arguments about the president being there is a good branch idea, that comes into play as well being the executive branch idea, that comes into play as well. I am struck by the contrast in reasoning in the justices. Not that long ago, first of all, it was essentially unanimous, you had Justice Breyer concurring, may be most concerned about the effect of the presidency come but otherwise, this was not an ideologically dividing case. It was a real information that the president is not above the law. Affirmation that the president was not above the law. I think the court on this one together. O come i agree there may be some differences about what the specific standard is and how you apply it. I think they will try to come together. It is important in these cases that you dont have that kind of ideological line on a basic principle, that the president is not above the law. The other thing is you can protect the president without burden shifting. The real question is, nobody is saying there is no protection for the president. Even justices who were saying that there wouldnt be an ordinary standard, i think they were saying that we do the ordinary standard, then if the president comes in with a claim of privilege, that is argument of jones, then we would require something more. Versus at the getgo, requiring more from the president. I think that was where the difference was. I think everybody acknowledged the president may need some special protection, as the court date in clinton v. Jones. The question is whether they would provided at the outset or they would put the president to some degree of proof of burden before they call that apparatus into question. Interesting. We cannot predict or solve the case, that is above our paygrade, but Clinton B Jones was nearly unanimous. The chief justice cared about the dust of the court and has worked so hard to avoid 54 decisions on partisan lines, especially in cases of high political balance. I am imagining that he will be eager to come up with some sort of consent in this case on the photo that it would not be good forthe courts legitimacy the court to rule in the claim an criminal case for President Trump. What is the standard as an advocate of executive power who has argued the president should have his article ii interests protected . If the chief Justice Needs a consensus approach, i thought the solicitor general offered a way out. Let the lower courts determine whether the heightened needs standard, which of courts have embraced for the first time, have been satisfied. Let those proceedings continue and then later down the line, if that standard has not satisfied it, then the Supreme Court, if necessary, could decide whether the president in fact has absolute immunity. But one way out is we are not even deciding they need to question. Lets just first figure out if the heightened needs standard has been satisfied. Then if it has come up you will get into this absolute immunity has, you then if it will get into this absolute immunity question. Thatll think it is as big of a stretch as you might think. But the grand jury cannot investigate the department of justice. It is law about the persecutor cannot indict the treasury for duties, states cannot subvert the federal government. The question is, does the president get even more temporary on basis, a temporary claim of immunity until he leaves office . Does he get more protection . We already acknowledge given to inferior federal officers. So i dont think this is about, and the president shoot someone on fifth avenue and get away of, it, it is a matter while in office, do we not stigmatize the president to criminal process, and when he is out, all the normal rules turn back on . Me the phrase above the law doesnt tell me much. I want to know what the law is first before i know whether someone is above or below it. Thank you for articulating a standard that i think i heard general francisco articulate,t too, that the court should send it back to the lower court and have them decide on that basis before deciding whether the president has absolute immunity. As i heard the argument, i dont i didnt hear the liberal justices being willing to accept that. They seemed Justice Kagan, why dont they said, we just apply the standard we usually do in ordinary subpoena cases for the grand jury . I guess i will ask you, do you agree that they were not inclined to accept the heightened need standard, and if that is right, can you imagine some compromise that requires a little bit more of a showing doesthe ordinary case, but not create an entirely new standard for the president . Will bet think there consensus on the heightened need standard from the getgo. I am not even sure all of the conservative justices necessarily, they might be more inclined because of stronger believes in president ial power, but i didnt get the sense of they were fully on board. What i would expect to see more a, if there is going to be consensus, some requirement that the president has to invoke article ii in some way. That could be pretty flipped. The president has to articulate some burden, some plausible burden, or some claim of privilege, then it switches, then the burden switches to the other side to justify. It would turn a little bit on how much the other side could really show, for example, if they couldnt get the information elsewhere or so forth. I agreethe way with you in your assessment of what chief Justice Roberts would like to do here. And i agree the way to do it is to say there has to be some assertions of article ii privilege by the president , of article burden. Some kind of article ii claim at the outset and then switch to this heightened showing supervised by a federal court. Be one or two votes of absolute immunity but i dont think this is something the majority was to engage in. Suggestion. Ng cspan listeners will hear the three of us try to think through in realtime how the court might weigh these competing options. She made a very interesting suggestion that the president should say, my ability to fulfill my office as president of the United States thunder ii of the constitution is being burdened by the subpoena and then shifts it to the grand jury to prove why they need the information. That leaves the president largely immune from process. But lower courts already found against this. Trump did not argue it was, he is arguing that he is completely immune. The Supreme Court could say that the president should have to that his kind of claim constitutional functions are being impeded before the burden shifts on the other side to show why they need the information. Lets take one last beat on this than we should have closing arguments. ,uch an interesting discussion absolutely fascinating cases. Andy, how about julians standards. Of thesedent in none cases actually invoked executive privilege or article ii burden. He said, i will be really burdened, and even then, Justice Ginsburg said he had to turn over the tapes. What would you think as an executive power a compromise brainstorming, that would require the president to interests article before the burden shifted and the standard was raised . With respect to the Lower Court Proceedings in this case, same old really fast. I didnt feel the lower courts made a meaningful inquiry into the factual arguments made by the president with respect to the subpoena. Two, i am inclined to think that the mere fact of being subject to criminal process by itself burdens the president. Maybe i am just scared of going to jail, i dont know, but to me it is obvious that if you are subject to criminal process, obviously, that will burden you. For me, it will are played explanation of why going to jail would burden article ii exercise of majority would be fine to me. I suppose maybe it would depend on how robust this requirement of article ii . Burdens has to be. To me it is obvious. For me i feel that criminal process is per se a burden on the president on on everyone else just as a flat rule. Great. Last review of the arguments then we will have our closing statements. It was so interesting in the arguments. What do you want to highlight about comments from justices in either case that struck you as unusually revealing about which way the court was going . . About theto note outset, that the president was not subject to the process here. And isnt even necessarily the only target. There were a couple of things that struck me. What struck me about the second argument we have been talking about is how quickly we were in the weeds of what the standard should be or how we balance this out, as opposed to the big as additional frameup of state versus federal government or president versus state, kind of situation. I got a sense of the court being much more interested in the nuances in that case. Went for think they the broad categorical unity. Were being made. There was more sensitivity to the state interest. What struck me about the first , actually, i was surprised by the lack of real concern about congress. It came up as there was a real ideological divide their, and much more acrosstheboard solicitation about the states i interest in the case versus congress does the interest in the case. I think it reveals something about how we have come to view the relationship between our political branches and not necessarily inspiring thing. It strikesht me that this will be harder to reach crosscourt consensus in the first case if there is not more weight given to congresss interest as well as the president s interest in that case. Thank you. There are so many Great Questions from our viewers. I will give andy this question which is coming from to the viewers. One asks, is the grand jurys position weaker or stronger than that of congress . Will the statute of limitations render the claim of temporary immunity prominent . Another viewer great you are here, gary he asks, what are the implications for the statute of limitations . Would it continue to run if the president was shielded until he leaves office . Bothl ask you to address those questions on the statute of limitations and then tease out any aspects of the oral expect. That you i will take the second one first because i definitely dont know the answer to that. There is debate as to whether the president is immune to statute of limitations. I have seen persons argue both ways. My gut feeling is that those arent the circumstances in a he would ordinarily statute of limitations. I could be wrong. But that is a thorny issue. Can you halt a statute of limitations when someone is immune . If you cant hold it, then i think obviously practical concerns become extremely exaggerated, because the president could never be prosecuted if he is in office for eight years, and you have four or five or six year statute limitations. A major issue that may be news to be addressed by legislatures going forward. Das isether the veryger or weaker, strange, two congressional committees requested documents from trump. Subpoenas. Those,copied and pasted also, because those subpoenas did not ask for tax returns, he also copied and pasted a subpoena from the ways and means committee, the Tax Committee of the u. S. Congress and send those over. To me, that was troubling. , he wasan tell investigating some local new york city Business Records law. If he has asked all of this information that asked just that relates to russian interference, federal elections, International Banking and investigation into the irs, that strikes me as very strange. On the merits, if we get to the heightened need standard, the Supreme Court justice scratches their head as to why you need exactly what the investigation into russia requires. The da also asked for, with respect to things available elsewhere, trumps tax returns. The state surely has them. Trump has properties in the new york. There is no doubt he files new york tax returns. Very likely he adds his federal tax returns. The state of new york has them already. The attorney general of new york can have the tax returns. Local prosecutors do not get them. Instead of working with his own government to get the documents they surely already have, he has decided to subject the president to criminal process. I understand that it is two banks and nothing personally, but he abandoned the argument at the Supreme Court that this is purely just like any other bank. His brief was all about the fact that he is going after an official axis as opposed to official access. A big aside from all the legal issues, i find his position very strange on the merits. Thank you for that. One last question in brief response to keep the order as well to your arguments, in the right order. Responses to anything and he just said if you need to, and then our viewer asks, the framers intended the president would not be indicted. However, did they intend for the president to be immune from all proceedings . If the president is immune from all criminal proceedings would that mean he is above the rule of law . Another viewer asks a similar question is the president above the rule of law. That is the question presented to us in both of these cases. Does that entitle him to rules that do not apply to everyone else . What are your thoughts on that question . Right. The pointdy mentioned about temporary immunity. If you are talking about a prosecution of the president himself, that is honestly one that would be told. That may be a partial answer their. Answer there. If you are talking about prosecution of the president , like a state persecution of the president , it does raise the federalism and for taking over the whole concerns identified in this brief and in this case. ,ut in this case, brian said again, this is a thirdparty subpoena. There are other ways of getting at in protecting the president from requiring some assertion, some kind of burden and more specific showing. In this case if you were to give that kind of blanket, acrosstheboard temporary immunity, you risk the issue of the president being above the law in ordinary Legal Process while in office. At minimum, then you have to take on clinton v. Jones, and the court would have to overrule clinton v. Jones to adopt the position of a categorical exemption. Yet that was civil. This is criminal. It is very hard, and i think the court was struggling with this, it is very hard to adopt a categorical position that actually, the president is not above ordinary Legal Process without showing some reason why the presidency needs some kind of protection. So again, i think we have to be very careful about the specific claims they made about the president and the way the burden is falling on the president. I agree with andy about the degree on which this is burdensome on the president and i also think the lower and were involved less in what was going on in terms of whether or not it was a legitimate claim to subpoena a grand jury for context. Thank you so much for that. It is time for closing arguments in this remarkably rich discussion. It is extremely hard to condense into a few crisp sentences lessons of your positions, but i will ask you to do that. You heard the lawyers in the argument do so wonderfully well in condensing their positions. Andy, the first of the last words is to you. Cspanstion is, tell our viewers why you believe the president should not have to respond to subpoenas from congress or from grand jurys unless both loose bodies can meet a higher than ordinary standard showing some demonstrable or critical need for the information. I will dodge that question because, i cant answer in two sentences, i have a couple of sentences best couple of cases. For those listening or who have made it this far, you will see that me and jillian disagreed on a lot of these some issues. She has a broader view of congresss power to impose Financial Disclosure requirements on the president than i do. Her the you asked question five years ago, she would tell you the same thing in five years from now, she have the same approach toward congresss regulation over the president. Ditto for me. Some of us just have different ideological Vantage Point and that explains the difference of opinions. Things differently aside from the current occupant in office. No man is an island. No woman is an island. But for people who watch these i am also aware that there are more things going on n ithese disputes tha support my girl or my guy and i hit the other side. That explains a lot on the division in the bench than i think is often appreciated. Thank you very much for that. And i must thank you for exhorting our great viewers to separate your political from your constitutional views and try to question these cases in a legal and openminded spirit which is what we are doing by having this rigorous and illuminating conversation. Gillian, the last word is to you. Court i loved to dodge the question, you can answer it or not if you like. Tell our viewers why you believe the president should not be subject to a heightened standard of critical need when confronting a subpoena by congress or by the grand jury. Honestly, i think the answer relates very much to what and he was saying, it has to do with the view of the constitution and the separation of powers. In my view, it is better to avoid absolutes. To acknowledge our history is one of negotiation among the branches, of not exaggerating executive power in our constitutional frame. I think that executive power has grown tremendously over time, and the more congress is polarized ideologically, it will only grow more. I am less concerned about protecting the executive branch, and i see less of the kind of absolute protection of the executive branch from some than may be andy does. Lawyers rumps what i would hope to see is decisions from the court that acknowledge that need for sticking to both branchs interests, and therefore, requiring the president to show more before he is exempt from congressional or from the process, to to really try and stick the tried and true strategy of looking at things casebycase and recognizing that the federal courts are able to protect a wide variety of interests in that fashion. Thank you so much for that creative and illuminating suggestion that the president has to show a heightened constitutional interest before he gets closer protections. And also for joining andy in viewers forr approaching this in the spirit of constitutional law rather than partisan politics, and recognizing that people can disagree thoughtfully and respectfully about these cases based on your view of separation of powers and the balance between congressional and executive power, rather than on the grounds of politics. National Constitutional Center and cspan friends, there is one more day in this great experiment in Public Education. Tomorrow, there will be three involving state less electors and whether states can force electors to vote for the people they are elected to vote for or not. There is homework as always for these dis discussions. Briefs. To read the you will find them on the Supreme Court website at supremecourt. Gov. And for extra credit, go to the National Constitution centers interactive constitution and click on the blog as well as the 12th amendment and see the essays by the leading liberal and conservative scholars in america with 1000 words about what they think the provisions mean. Exactly the kind of discussion we have been having today and week. I know you will learn much from these essays as i do. With that, let me once again thank you so very sincerely, andy and g illian. Thank you for joining, france. France. Announcer the Supreme Court continues live teleconference arguments tomorrow with a case about Electoral College delegates and whether they are free to vote for any president ial delegate or locked into voting for the one they were pledged to support. That is tomorrow morning at 10 00 eastern. Followed by a discussion of the case by the National Constitution center and a panel of experts moderated i jeffrey rosen. You can watch live on cspan. Org or listen free on the cspan radio app. To capitol live now hill, where the Senate Judiciary committee is holding a hearing to examine the issue of theorate liability amid coronavirus pandemic, and who is responsible if workers return to the job and get the virus. Some of these workers will be taken advantage of. Our faith in federal government our nations largest corporations have a responsibility to do what is right. Saying this, this virus doesnt care whether or not you are republican or democrat. Party or not be about politics, this is about health and safety of our nations food workers and our food supply and as