We will hear the argument is next in case 19635 donald trump versus cyrus vance. Nno County District attorney and that history has issued criminal process against the sitting president of the United States and fortit good reason, e constitution doesnt allow it. Temporary president ial immunity is constitutionally required by article two and accordingly, the supremacy clause to face any authority they have under that state law as to the president. The Second Circuit is wrong and should be reversed. If not reversed the decision weaponizeon is 2300 local and or an overwhelming number of them are elected and thereby accountable to the local constituencies. The decision would allow any two giraffes, distract or interfere with the sitting president to the local prejudice that could influence prosecutorial decisions and those who can then utilize the criminal process in the form of subpoena targeting the president. This isnt speculation. It is what is taking place in the subpoena of the challenge. In the argument concluded we asserted they didnt serve a legitimate legislative purpose and they were burdensome, get a copy almost verbatim the House Oversight committee with an additional 13 words which seek the president s tax returns. How revealing the same language utilized by two congressional committees that subsequently are copied by the District Attorney covering the exact same documents to the same recipients get purportedly for two completely different reasons. Under article two for the high scrutiny standard under nixon the subpoena we challenge today cannot survive at the Second Circuit concluded the president is beingen investigated for potential criminal violations of the state grand jury proceeding issuing coercive criminal process againstsu the president. This he cannot do. Thank you mr. Chief justice. For all that, you do not argue the grand jury cannot investigate the president , do you . We do not seek an injunction in the case involved in joining the grand jury. Weve targeted digitalization of the temporary immunity here to the subpoena. Thats correct. Its okay to investigate except it cant use the traditional most effective device isef typically used to go much further than resisting the subpoena. I dont know why you dont reduce it in its entirety or byy your theory would lead to that. Our position is the criminal process against the president come and targeting the president is a violation in the constitution. T of the constitution. We didnt seek to enforce onno e juncture against theor grand juy investigating the situation. Focused on the distraction to the president but i do not know why we were not persuaded that event the discovery could not proceed. But i would have thought the discovery in a case like clinton versus jonesboro symbol would be distracting as you argue the grand jury proceedings are here. Clinton versus jones in federal court this is in state court. It would raise different issues than the separation of powers and in footnote 13 i 13 absent y direct control by the state court may be different. Yes, counsel. Just a couple of questions. Im interested in whether or not you can point us to some express language of the founding ordering the ratification process that provides for this immunity. There is a couple between Vice President adams and senator ellsworth where they talk about the position to vendor about from north to south and east to west. Inou the previous argument they stated this categorical. The concern over interference in the president s responsibilities was disgusted that is why in the constitution there is a process to deal with it. Does it make a difference in the party . Certainly not hear. Theyve conceded in the brief beast or the president s documents and he has the burden including the review in the councicouncil over any existing privilege in that the documentsp might entail. Thank you. We have said in the grand jury context the public has a right to every mans evidence. Is it your position every mans evidence and there is no privilege involved here. The grand jury to every mans evidence thats one question. Then i want you to answer specifically they held the president wasnt immune from civil suit before they took office. Would clinton have had absolute immunity . The if the case was brought in state court that would raise different issues over local prejudice and separation of powers issue pages 691 and footnote 13 with regards to every mans evidence the court has long recognized the president isnt to be treated as an ordinary citizen. He has responsibilities he is himself a branch of government. He is the only individual that is a branch of government in the federal system, so our position is the constitution itself in the structure and text supports the position they would be temporarily immune from this activity going state well hes the president of the United States. Justice breyer. Justice ginsburg, the president isnt to be treated as an ordinary citizen, and this is a temporary immunity. This is for while the president is in office while you make a point of the attorneys that of course lyndon b. Johnson might be a million, i dont know that they could file the paper. Why isnt it sufficient to apply ordinary standards i gather ordinarily any person that gets a subpoena could come in and say it is unduly burdensome and what counts as unduly burdensome for a doctor that is in the middle of an operation might be very different from a person that is a salesman. So, for the president also factors raised could come in under the title unduly burdensome. So why not just got back. I will show you precisely how this is burdensome. Im going to spend time and effort figuring out what they mean, etc. And if he shows undue burden and lack of connection, he wins and otherwise, not. Thatat is true of every person, but his clinton v. Jones, why not the same here. By the time you are to prepare, review, analyze the requests just in the use cases we have today shows the burdensome nature and then to require the president of the United States. The burden isha being met but to require to respond to each District Attorney that would take a lot of time and he wouldnt be burdened because then you would fit with the burdens are and if you are right, you would win that case. They are saying let them figure out what they are. Doing that establishes the problem in the analysis on a casebycasand acasebycase anr instance in this very case found on page 118 and 119 of the petition appendix is a list of documents you have to meet withh the president of the United States could you imagine just for a moment and to say i know youre handling epidemic right now but i would extend going over the subpoena wanted by the New York County attorney are there at least some circumstances in which they would prevent local prosecutors containing information about a sitting president , the figure of this situation. The situation. Suppose that the prosecutor has a reason to believe the records contained information that isnt available from any other source about whether thirdparty committed a crime as opposed to waiting until the end of the president s term to make the prosecution of that possible stated at least in this circumstance it a would be permissible for the grand jury subpoena tois be enforced . The issues of time and burden are still there. Usb nixon that was the case where the president was a witness and that the documents were asked but in that case it was clear the president was a witness and the independent counsel specifically stated the president wasnt a target so while it is a different case here we are talking o about the criminal process targeting the president. What is the answer that would be permissible if the prosecutor were willing to say that he wasnt a target, whatever that means . It wouldnt mean that itss constitutionally permissible, but i have to be very clear constitutionally in the supremacy clause as to the state Court Proceeding even as a witness that raises serious issues nonetheless. Justice sotomayor. Youre asking for a broadness that is nowhere in then constitution. And in fact the constitution protects against president ial rfinterference in the state criminal proceedings. It wasnt about the president took us to the prosecutions were staged criminal convictions. But i find it all out if you want us to rule that there is essentially an absolute immunity for the state of the Police Powers and we would permit the civil damages case by the lead against which we did. Prosecutors have the ethical obligations with respect to grand jury investigations. It could be prosecuted if they leaked that information. Dont we presume the state courts and statete prosecutors t as they showed in the goodfaith . . Doesnt the president always have the opportunity to show the particular subpoenaa issued in that the president was given the opportunity here and in affidavits i understand was hired under seal for the reasonable grounds for the investigation . Im not sure why hes entitled to more unity or private acts then he should be for public acts. Hes the president of the United States, a branch of the federal government. We only give judicial officers and congressional officers immunity from acts within theirn official capacit. If they dont, if the judges harass someone, we sa we say tht isnsee thatisnt within the jul functions, they can be sued if the congressma congressmen do te thing they can be sued. So youre asking for more broad immunity then anyone else gets. We are asking for the temporary immunity and i would point out the witnesses before the grand jury are not sworn to secrecy they can state that theyve testified that i would also like to point out that there are hundreds of millions of the United States congress and 100 members in the state senate. Ti io why isnt the way to deal with these two things the president is like an ordinary citizen subject to the law but if he can make these usual objections t about harassment and the courts in reviewing those of course should seek seriously the president s objection and treat those with certain pride and sensitivity and respect. Why isnt that the right way to do it . Ay first this is the perfect example here the District Attorney copied for paid him the House Oversight committee verbatim. Discussing theer previous case the nature for counsel to honor each time he could be subpoenaed as a witness or in this particular w o case as a target has serious impact on the president s functions so it is very specific state process to target a president s documents in a criminal proceeding should be prohibited. Justice gorsuch. I would like to return to clinton versus jones and how you have us distinguish that. Yes it took place in federal court but it was a civil case as pointed out there could have been multiple versions of that across the country so how do we avoid that conclusion subject to special immunity . The nature of the case we are dealing with here is not in a vacuum itself there are other cases the president deals with at the same time. What made this situation is multiple litigation going s on. The supremacypr clause issue as the court alluded to clinton against jones that very reason the idea local president , the idea we would wait until more we are already on three subpoena involving multiple subpoena which covers the same documentation. So that proves the point we are here the house is asked for documents now the District Attorney is asking d for. We are seeing that an realtime. How is this more burdensome than what took place with clintonve versus jones . The civil case defendant in the principal in a criminal case by the state district. I will stop you there while they were serving now seeking reference and thirdparty. But those are hisis records the custodian of the president s tax returns these are the president s documents they are asking and what is to stoph them . Or for that matter asking him to appear before a grand jury the official versus the unofficial is the decidingg factor and that process here interferes with the duty but on that official distinction then what stops the local District Attorney from having the president testify . Justice kavanaugh. Thank you mr. Chief justice. Good afternoon mr. Sekulow following up with Justice Gorsuch to explain the rationale for having one rule for criminal and another for civil just assume there was one criminal investigation. Thats it tims and just explaine rest with a different rule. Its not that its a different rule but in this case its within the context that you have article two concerns and the supremacy clause issue against jones that creates the t issue. The criminal nature is very distinct from a civil case to be clear. The idea that you are the a subject or target of a criminal case being brought against he was very different than a civil suit were at the end of the day it results in monetary damages r. Not a loss of liberty. There is a big distinction between civil and criminal cases in that regard and that impacts the standard upon which the court should look at the president ss temporary immunity. We are talking about stopping a process targeting the president this subpoena targets the president doesnt we are talking about it is that burden. I think the other side the position you are articulating is more consistent with Justice Breyer clinton versus jones versus the majority opinion that the judges are hearing a private civil damages act may not have any that significantly distract the president from official duties but that language is not in the majority opinion. What do you think how we should discuss that. Two very distinct process and then a civil context and civil proceeding the general rules of civil procedure in the court the process goes forward and the judges can take into consideration. This is a state proceedings crw educated by the local District Attorney against the sitting president of the unitedti states so our concern is it is a feature of the proceedingg itself that the subpoena targeting the president and his records. How do you deal with the statute of limitationsns quick. That is decided under new york state law there will be procedures utilized if in fact they were elected to start a process like that. Thank you counsel. Mr. Chief justice may it please the court at a minimum a local prosecutor needs the personal records to subpoena them for two reasons. First as the court suggested state proceedings can go to the presidency those across the country places more emphasis on local interest and National Federal prosecutor against National Interest including the president s need to do the job. Second, ordinary grand jury rules thats why it nixon there was a federal prosecutor for specific needs for the information sought. Local prosecutor should at least be required for the standard as the court has said what it ever be required to proceed against the president as an ordinary citizen here the District Attorney is trying to meet the special needss standard. We just heard arguing in favor of absolute standard that your position is add minimum the special needs test must be met of course mr. Sekulow represents mr. Trump you are arguing for the United States so what is wrong with mr. Trumps position . I actually think mr. Sekulow makes a strong argument on the immunity issue. We dont think the court needs to address this at least until nde prosecutor argues to attempt to meet that special need a bet they are not arguing that before the court so there is no reason for the court to address that in question and the courts ordinary processes to have those more broader questions when possible we think the special needs standard will fully resolve at this stage of the proceeding. In a typical case with those allocations to say they are implicated you would say ur ao before a court they would examine the criteria that you talk about i gather is the test of nixon and under mr. Sekulow that would not be legal before the court to say he is a means of the court has no business addressing a case that is a significant differenceimmu. In both instances the argument would beta available to make that argument to the article to federal court and if the court found that prosecutor had not met the special needs standard it would it need to address the Broader Community question. If it did find they met the special needs standard it would then have to and all we are saying the special need issue is addressed at the threshold there is no need to address the Broader Community question. Thank you counsel Justice Thomas. Yes. You mentioned the burden on the president. I would determine when is it too much . There are a couple of things. First, the fact we are in state court is significant local prosecutors will put more emphasis on local interest ande national that is the manner of elections by relatively homogenous communities and in new york state is would add where they are elected in a similar way. They are you already have local prejudice and special needs standard ensures it is available to have the lower interest against the national including the need to do his job. Second, also the ordinary grand jury rules with exercising his authority was are not designed to are sufficient since ordinary grand jury rules the District Attorney never has to make a showing of need instead the burden is on the witness to show the subpoena could havean no relevance to any possible subject of an investigation that is a perfectly appropriate standard in the ordinary case but the reason why nixon applied it above and beyond the ordinary rule of criminal procedure is the court recognizes the president is the sole personnt to all powers being vested so a measure of protection above and beyond the ordinary rules and the special needs standard is a measure two. Back to Justice Breyers prediction that the court would need to develop special protective procedures for the president in the context of litigation like this. Justice ginsburg. You said the states are subordinate and sovereign subject to the supremacy clause. But you dont give any credit at all to the tenth amendment and the powers of the state. And as far as the impact of the president is concerned i believe its more dramatic than dead nixon tapes that said devastating effect from the president he resigned from office. But that was okay so i dont get it. In terms of the tenth amendment, all we say is that article two is all executive power in a single president of the United States he is the sole person all executive power is vested so that necessarily implies there are limits on what others can do to unduly burden him with his ability to do the job. So all that does is ensure prosecutors really needs information before he can enforce the subpoena because if he cannot show he needs the information he has in undue burden on the president if you multiply that across the country i think the risk of the presidency is quite high in terms of the nixon case we are arguing for the same standard the court applied and then nixon case the special needs standard were just saying a local press on prosecutor at a minimum should meet the same standard as the federal prosecutor had to m meet to show he really does need that information he is seeking because if he doesnt. The grand jury is the investigatory body with specific charging decisions while the investigation is underway and thats in order to determine specific charging decisions but you would have them make those before they investigate and that seems to be backwards. Respectfully, know your honor i would urge you to apply the same standarde applied in the henry fields case which was a grand jury subpoena issued to the white house where she concluded properly that nixon special needs standard ought to applyda to grand jury subpoenas you have to make a charging decision but you do have to show a demonstrated particular need for the information pursuant of which you are issuing the grand jury subpoena. Justice breyer. I think the nixon tape case wasnt against you i think it was executivevi privilege that what might be more relevant if in that case the court said first there was a weighing of the burdensome nature et cetera in the lower courts it was decided it is appropriate to go forward. What i dont see is why you need a special standard more than that here. You would need a decision if it is reviewable in federal court. I understand that but i understand why you have to go beyond that with what you are talking about taking into account. You are absolutely correct at a minimum we would need federal court review and that the District Attorney agrees there are article twoes the lims on what you can do and those are in federal court. Respectfully i would suggest nixon stands for more than a weighing of interest he meets the special needs standard and instead the prosecutor did have to show a need for the information that is all we are suggesting. Did anybody talk about the assertion of executive privileg privilege. A litigation is burdensome and as was recognized they might need more protection in state court then federal court precisely because of local prejudice and that is on that question so if you put those together it does make it entirely appropriate to the local prosecutor in state court and in the nixon case. And in his own case specific case special needs test. We dont get discovery into a grand jury proceeding and then some kind of showing. Justice alito. With that special need in tDistrict Court. Spent the prosecutor has to reveal. And that is essential for the investigation. To be reviewed. And to object to that. Its difficult to answer that in a vacuum its hard to depend on a particular case. And to make public to be responsibly made public to have an opportunity and the president s lawyers have an opportunity to make their case. If there is evidence that cannot be made public without with ex parte proceedings or under seal. This is the type of assessment talking about subpoena unprecedented like this one. And then to target the United States. And with the dc circuit and with some amount of details it with a grand jury subpoena. And to meet that special needs standard. Its probably somewhere in between those two things. So it cant be marginally useful or duplicative does have to be critical to the charging decision. And then to be a responsible charging position and doesnt meet thatt special needs standard. Justice sotomayor or. There is always danger and for one set of needs and with the rsexecutive privilege with the preceding and issue on transplant to a situation and claiming of executive privilege were immunity. So why are we using all that language to get to a standard to take care of what you are worried about . And if that investigation is based on suspicion of criminal activity and if that is calculated for that investigation. Whether there is a goodhe faith basis in the prosecutors actions. And in the scope and burdens. I dont understand why that standard is inadequate especially for a proceeding that involves secrecy like the grand jury subpoena. For two reasons that could explain to be quite burdensome and that is litigated and then correctly predicted and with those procedures we are proposing so why would a prosecutor to take the subpoena to be president of the United States for personal records from a local prosecutor if he cannot even show he really needs the information he is seeking. If he cannot make that showing there is a pretty good reason to be a little bit suspicious. Justice kagan. A couple of times now why are you using the standard from the executive privilege case to say litigation not bad its burdensome but that critical factor and in communicating and the need for confidentiality and that is why the nixon standard was developed not just because of the burden soundness to be dealt with in other ways. Why should that standard be aused here . Respectfully be because they are a parallel interest. You are right its meant to protect the confidentiality of communications but article two oh more generally is from unduly burdened in his ability to carry out his responsibility. That isibib necessary talking about state Court Proceedings of the 2300 local prosecutors across the country. That this highend standard that burden soundness is addressed in any subpoena and when it gets to the president and thetr responsibilities and especially when we tell them so so i do need this highend standard with those communications about official government business . Under the ordinary grand jury rule is just whether the subpoena has any relevance to that subject of investigation and second that judgment should be made by federal courts because state courts like local prosecutors are were more responsive because it new york state like the District Attorneys so we just say this is the type of assessment to be make in the federal court in the easy to apply standard you have already been applying 50 years under nixon case. And how this standard would play out in practice. I suppose a local Prosecutor Says im investigating a it. And with that attraction of the possession of the actual defendant. Why doesnt that heighten test . Then what have we achieved . And the potential defendant is the president of United States and then to indict the president of the United States until after he leaves office he cannot show he needs information t now and then to indict the president of the United States. And then to look at the nixon case itself with a specialon counsel investigating a thirdparty. Under the special needs standard. I didnt follow the last portion. And then we need to determine a thursday infraction. Why would that qualify under your standard . That is a thing to take under account in my standard and to take special needs with respect to the information and found it was really necessary to bring charges against the thirdparty he may well meet the special needs standard and that adjust the Broader Community questions. How much of the showing of special needs is required under your standard . I have a reasonable suspicion of the tax entity is that enough . Its more than that you have to show the information he is seeking and then you cant get that from somewhere lselse essentially the same standard in the dc circuit applies. And it is a rule that courts have defined for over 50 years. Thank you counsel. Justice kavanaugh. Following up on Justice Thomas and Justice Kagan before we talk about the standard. And with Justice Breyers concurrence with the interest and time and energy with nixon versus fitzgerald as the independent and with that decisionmaking from executive privilege. Is that the article two interest you zero inn on. Reading Justice Breyers opinion understood that to be both of o them. And in a Single Person and that necessarily means they cannot necessarily hobble or debilitate that person to carry out his duties. But if they cannot impede the president to share the responsibility so we have to show they really need the information and 2300 ngosecutors hit it was subpoenas and that they need that information and then to be undermining the president s ability to effectively carry out the constitution that him and him alone on behalf of the entire country. Thank you council. Mr. Chief justice may it please the court. One is a central role the president of the function of National Government and then interfering with the ability to carry out those duties. And under that constitution asking a private individual has responsibilities like every other citizen including compliance and in particular the court has well held american president s are not about to provide evidence in response to a Law Enforcement inquiry. We are mindful is a state actor we cannot investigate for an official act or prosecute while in office. T but here it is a subpoena sent to a thirdparty considering private conduct of the individuals and businesses. And there is no claim of any official acts or executive privilege. Those that were not born of political animus or intent to harass and with those certain business transactions and at the office would be remiss. And then to ask the court to have 200 years of precedent by saying he has a blanket immunity from any legal inquiry even from prior private acts even though that could result in a permanent immunity for him and other parties that the statute of limitations expires and that could exonerate those individuals. His claim also asked the court to preserve in that state and federal courts allow prosecutors to do so of course there is no historical support that flies in the face of federalism. The only thing new here is the subpoena that comes from the state of the constitutional burden to abandon that longstanding respect for criminal proceedings. And have cases this morning in this case and to be very similar and in other respects that separation of powers case in the ongoing relationship. And issues of the sort and with some regularity. And almost always each of those branches have authorities and powers that affect each other. If the white house doesnt give the documents in the senate says he will take our time to confirm and back and forth. And with that ongoing relationship that possibility to work something out but the stakes are difficult so shouldnt there be a higher standard for the District Attorney around the country or maybe those of congress 2300 should that be a higher standard with the separation of powers dispute . Yes and putting aside this analysis to address the doj standard because we see there are three reasons why the doj showing client proposals does not work. First one problem this is the approach to thes cases that would harm the grand jury process so we agree only after establishing the article two burden. Es and then even against the need of Legal Process. Both of those cases. And is it more rigorous . What about white house and congress . We believe it is the affirmative showing by president. And in a different case if there was such a showing we believe the prosecutor should show the objective basis and also a reasonable probability of information. That would be more consistent with pastag cases with the realities of the grand jury investigation and the alternative for the prosecutor to get permission first from the federal judge relating to business activities. Like those of the enterprises that they should not be burdened by delays because its a confidential process and not an adversarials proceeding. Justice thomas. You are about to say the approach with the grand jury process. I was just addressing that for any given in case to say by the way we had an Investigation Underway but the and then to get subpoena and may be they the h Accounting Firm the way the grand jury process is supposed to work. But the language that they chose just is note work. And that only applies in thehe context. To show it is directly relevant. Again that language just doesnt apply to the context and thats why the formulation we suggested and what is needed in the grand jury cocontext and there is already been a finding and we already met the standard of the investigation and basically and federal court and most other states and the recipient of the subpoena to have that burden some sort to make those factual arguments that there is a grand jury judge to supervises all activities and is always available but the morere important point with the court of appeals in thisf case. And and of president in particular concerning about this type of impact and that was the main concern. The president said it is impossible for him to do his job other than being burdened. We have a role to limit in the grand jury process. And in the federal court and that concern is if it is a real burden and a distraction claim but then day have the wide variety of limitations. And that is the beauty of pthose prior decisions which have decided consistently to apply the case specific analysis. And with that categorical prophylactic rule. Thank you. Justice ginsburg. The points that have been raised w and controlled by the attorney general. And with a grand jury subpoena power so the control exist in federal court with the attorney general at the helm that nobody controlling these. I understand also the consistent argument if i could address that i could give several answers first of w all there is no empirical basis in history for this apocalyptic prediction the same claim was made it nixon and then clinton that was decades ago and there hasnt been a flood of subpoena or those are federal prosecutors. Second the notion that there are prosecutors out there , there is no basis to seek for jurisdiction for present even with the prior conduct. Here theres a particular connection to the Trump Organization with a financial transaction. Its notec likely 2300 counties what have the connection to the president s private conduct. And you mention with the last argument this view y that there is a reckless mania to contradict in favor of regularity. And to finish off the limitation you are asking abouts of the case specific showing. And the few and far between over the decades and then to raise the claim the president has raised that is a limitation. Justice breyer. I agree that to basic principles is every mans evidence versus the constitution state the president is the executive article two and a conflict and with the power of congress and a conflict. I say they conflict but yes. A possible solution did say no absolute rule. The need versus the burdens and then to have that review in federal court. And because of the nature of it the kinds of things that might or might not be relevant depending on the case. And eventually we might m review it that would take time that would discourage prosecutors and that would encourage to work things out in a nontraditional way. I think thats exactly what has happened now in this case the president decided to pursue that community that is available in the future to all president sts but what should happen in the ordinary course is the solution and the limiting principle. It does make it clear there is a remedy to discourage badfaith impulses by any state or local prosecutor to provide an outlet that they cannot get out of control but thats the beauty of the case i dont think they lend themselves and thats the approach in this court day one. Thank you. As i understand there would be available review and federal courts. The prosecutor would have to show the objective basis and the relevance of the subpoena to thehe investigation. With language like that i said that is a probability that yes. What would be the objection to a more demanding standard . That prosecutor would have to show the information cannot be obtained from another source or be very difficult and the information is obtained right now as opposed to the end of the president s term would be some serious prejudice and the investigation. I dont think any of those concepts are foreign that i articulated and here for example the court below the District Court inlo particular heard the argument that the reasons why is for the negotiation with the president s lawyers but the ooutside Accounting Firm is the only repository of the most Important Documents and with those accounting materials. So my short answer is those concepts are fine and not burden some of the standard i set fort forth. And the adjudication for all cases would depend on any way of state law and the grand jury secrecy the federal court that rules that is strict and with thatic particular state with the revelation by the prosecutor to be in compliance with the subpoena. So to have that branch of secrecy rule that they are at least as strict as the federal system but if in fact the fact pattern presents to a judge it becomes public and the president would persuade a judge specifically the new york times. Does that have a bearingng on thi this . It is hard for me with actual leaking of grand jury materials so in all different kinds of processes asked dad is the cases but i am not aware the grand jury to prevent from actually turning over grand jury secrecy materials. Youre not aware of this ever happening they have not requested the media and the new york city area that investigative information . They ask all the time and it is consistently now. But the distinction people commenting all the time to the reporters of those tax returns or those sensitive documents that have been gathered and covered by grand jury secrecy. So history supports that view. The article two burden is that the burden of using for political purposes . Yes the express finding the investigation was wellfounded with no harassment of harboring with the subpoena. Counsel did i understand your answer to be that you are in agreement that we should impose a standard . No. Now we call the height and showing standard but a very different standard with the language to be looked at and imposed. If you can come i want to be precise. If your standard includes , then why not call it what it is . There must be a reason you think we should call it that. I dont know if i understand the difference. Im sorry the concern i have with the doj language calls for a stringent showing the subpoena request is directly relevant to those issues at trial andnd other concepts so what is not so strictg and limited to charging in trial related concepts in the context of a grand jury subpoena and whatever the standard we are articulating t , i believe we have met that standard even under the doj proposal because of the findings. That highend standard to interfere with the grand jury processhi . Among other things, the doj application standard would confer the same immunity the president ists seeking. Since you cannot indict while in office you dont need the documents while in office. So no subpoena to pass that test because basically that you have to wait intel out of office before gathering information because you dont need it in the meantime so that definitionsou as thats not workable. Why not . Obviously if wewe would wait until the president is out of office in a situation like this it would the availability of witnesses what they specifically contemplate could be subject to red grand jury and equally important noin one shouldan forget we have an investigation looking at the conduct of other people ands businesses to benefit those other participants in that limitation. So that is the same as absolute immunity with the statute of limitations to expire thats the problem. That you are right it would it be toldd against may one others that he may or may not be a part of. But just to address my friend on the other side i am not aware of any doctrine that would apply here to protect the states interest is in investigating and prosecuting down the road i know where that concept comes from but there is no act of congress that permits that so the statute of limitations is a big concern. We already lost nine months of time in this investigation due to the lawsuit and again every minute that goes by is basically granting the same absolute immunity the president is seeking. You have been talking about how to analyze thesese burdens in a case specific way of the president s time and any possibility of harassment for political purposes. Ombut the burdensome nature is categorical that was his term. I took that to mean that any subpoena interferes with the president s responsibility or president with his handling of theng office. Three points. The fact is the court addressed this question the president cannot realistically be shielded from every distraction including Legal Process in the modern age. Thats why its up to the court to protect the president depending on the casebycase basis. And that is completely speculative based on the notion the president could be worried or is distracted enough for the investigation may lead some day. Jones. Third, that is a concern i think its wrong to say the categorical rule would provide comfort to distractible president like that, for example, nobody suggest that we should be barred from continuing to investigate the president s prior colleagues, if we gather documents from them that reflect past communications with him while he was ceo, we supposed to be stopped because it could create a fear that the investigation of others might lead him to be accused of something someday, my point is that the speculative stress standard is not appropriate basis for bright line. Thats were the case specific approach is more appropriate. Speculative mental distress how does that mean political undermining. Thats beyond the can of our office and again, the District Court found there was no bad faith intended by virtue of our subpoena, 30 been determined that there is no intent to undermine. I dont know how a court can evaluate that and im not sure that would be appropriate. Mr. Secular suggest that youve shown your bad faith by taking the language of the House Oversight committees subpoena. Yes, your honor, we try to address that, the simple fact is that in 2018 when our investigation started and thereafter, as we spelled out, there were a series of Public Disclosures in the press about possibly the legal transaction involving the taxes and other financial, at the time the house subpoenas, it was clear that both our office and the house committees were looking at the same public allegations in that regard, in a situation like that once a house subpoena became public is not unusual for an office like ours to model our subpoena language on that which is already been made public from a different source when its going to the same recipient, it makes it easier on the recipient the process, there is no communication between our office and the house of all theres nothing sinister about. Thank you. Justice. I would like to return with justice alito, on uncertain what the daylight is between the tester proposing in the tester general has suggested. It seems like both the you agree that these questions should be resolved in federal court and you suggested that the prosecutor should have to be demonstrated objective for the investigation and that theres a least a reasonable probably that the information would be helpful to the investigation but it cant be obtained elsewhere and is needed now rather than at the end of the president s term because of some things that might take place in between. As i understand you suggested that the general think they should be immunity until the end of the term and the District Attorney has to sure why theres a need for the president s records now rather than at the end of the term. I understood your discussion to agree that would be relevant consideration, what am i missi missing. Your honor putting aside the language differences were to tried to highlight the most import distinction is a trying to know on the house side, the sequencing of the showing that needs to be made because what d. O. J. Is proposing that i understand is that in the first instance it has to be the prosecutor who goes to federal court in this instance and makes an affirmative showing that the standard hasnt met and theres an objective basis and it can be obtained elsewhere, et cetera and only after showing has been made by the prosecutor according to d. O. J. The urge of the president to show article two burden and that put me backwards with nixon and clinton and i think that is the president of the moving party as here to be required to make a showing as any other litigant would be the case and we were talking about purely private conduct to just explain why this request impacts not just on a need to gather documents which is not the case here but on actual article two burden and winds that showing has been made should i think the burden shifts to the prosecution consistent with past cases by the court to explain why nonetheless is Still Necessary to permit the court at that point, to conduct the balancing of apples and apples in terms of coming to the right conclusion in the specific case. So my correct in thinking that you agree that the form should be federal court, you agree on all the relevant considerations. Even frankly the doj standad the fact is weve already met that test. I know you think you win no matter what. We have to write a rule of some value Going Forward that isnt just about what the president thinks about presidency and im just trying to understand who bears the burden of proof. I think it is the burden and the difference in language which i pointed out to justice sotomayor. The differences or imported because i dont think the language works in the grand jury investigation. Thank you, chief justice and good afternoon. On the last point you were talking about with justice speak levin, the difference between the need to standard, you said it doesnt work in the grand jury. What do you do with the judges opinion on the case that took nixon and david apply it in the grand jury context . I think you mentioned in the earlier argument the fact remains the case was applying the standard as the court contemplatecourtcontemplated tof executive privilege and as it was pointed out earlier today i think that is a very different analysis to be undertaken for different purpose. I dont think one can simply import of language and apply it. Sorry to interrupt. Lets leave that for a moment with the point on the grand jury versus the trial, the opinion did take nixon and apply it in the grand jury context. And indeed when we are talking about a privilege analysis, i think that language is appropriate because at that point, once theres been affirmative showing that established there is a privilege to be addressed, its likely a privilege for the court to then to turn to the demand request and the documents at issue and evaluate them. What do you think it is . In the duties and obligations of the presidency it is the same analysis that was applied in nixon and clinton. Do you think that it is time and Energy Destruction as appropriate in the article to interest is . As a matter of degree, yes, that was the analysis. We recalled although the Court Allowed the litigation to proceed, of course appropriately as i think is the case here the need to make sure they are overseeing this kind of objection are undertaking the analysis of what the burdens are including at a practical level i think the Clinton Court hypothesized perhaps actual in person testimony might be appropriate. The other side made to distinctions and i want to make sure you have an opportunity to address them one is the federal state and the other is the civil criminal i suppose one thing i would like to have you address the court emphasized there is an individual person at stake that has a claim is not the same in the criminal context obviously they are very different interests but not the individual interests. Can you address that . Thats one distinction. There are potentially thousands were many more of the ethical and jurisdictional constraints they are bound by at which the court has long paid deference. I think the reason for concern is much higher. If theres an article at stake and you say it is and its different in the executive privilege interest is articles at stake i think the other side says it would be all of the standard would need for the state prosecutor ed for the federal prosecutor and i want to give you the opportunity to address that. I dont understand the distinction. Under the analysis the court applied before and the one we are talking about now, the same analysis would apply in the case of specific evaluation in the context of the particular facts of the particular request. You are okay with whatever standard applies to a federal prosecutor in a case where theres an article to interest and also applying to the state prosecutor . You are not okay with the standard i dont think. Because of the fact that i was applying to the claims of executive privilege but i think to get to your point what it comes down to in the nixon and clinton cases, we are talking about article three separation of power an analysis and here te analogy is balancing federalism about the police power of the states against the supremacy clause so it is a different analysis but its very analogous. Thank you. Council, we have a little bit of time for a second round, and i guess the thing that i would like to focus on first is the question of how you examined the burden on the president or the presidency. I dont understand how it works to be asked to devote a certain amount of time to review for example in this case the ten years of documents or whatever. I mean, is there supposed to be a hearing where he says this is what im doing. Ive got this pandemic, china is causing all sorts of trouble . Most president s throughout the term have a pretty long todo list, and i just wonder how it is ever going to be different in evaluating the burden. It seems to me that it would be the same no matter what, you wouldnt need it in a particular hearing. I guess when we are talking about in the context of a particular subpoena like this one or litigation or what have you, but in Clinton Court has already decided that you cannot shield a president from any sort of private distraction. I want to emphasize here again what was in the civil conte context . Im not sure whether the stigma of the simple secret grand jury investigation if it becomes publicly known is more distracting and stigmatizing perhaps then being accused of misconduct which of course was allowed to proceed in the case involving president clinton. So im not sure again the abstract concern about the possible mental distraction or even public stigma to adopt the rightwing constitutional rule that forbids any kind of process like this. That is what the president s personal lawyer is advocated. Its not what the solicitor general advocated. I know, your honor, therefore the answer in that case is what happened here which is a case of specific analysis before the court which is able to balance it was into arguments about burdens and when they dont find one whatsoever after an opportunity to be heard, that should be the answer and that is what happened here. Justice thomas, anything further . One question, theres been much discussion about burdens on the president. I would like from you a couple of specific examples of what you think a burden would be that actually counts in your analysis on the part of the president. Hypothetically because it proposes we say no burden whatsoever but i think that again i would point to the courts language in the clinton analysis where it was observed in passing that if a president was asked to appear and testify in trial someplace outside of the white house that might be the kind of thing you would say shouldnt have to happen. I would suggest among those lines also if a president were to be asked to show up for multiple days of consecutive deposition testimony or Something Like that, those are practical burdens. Or if the demands are they show up at a particular time or place that is there are conflicts into that kind of thing, again since we are talking about private conduct and no executive privilege, what we get t give tr practical concerns about the impositions on president ial activities, and i think that is what we are talking about. Justice ginsburg, anything further . Nothing further. Justice breyer. No thank you. Justice alito. One quick question. I dont know how good the court is about predicting consequences of some of the decisions, but would you say the courts prediction in clinton versus jones but it wouldnt have much of an impact on the presidency as it has been brought out . I guess my view of the chronology to be briefed is i think contrary to some peoples view of history the District Court following the courts decision has a close rein on the discovery in this case and later granted judgment long before trial. It led to the proceedings and other travails he had so i dont think it was this courts opinion or the litigation itself that led to those problems. Frankly it was the decision to lie under oath so i dont think the conclusion you couldnt accept the notion that theres going to be a parade in a particular case or acrosstheboard. Still its borne out of her history. Justice. One is in the articulation of special needs for the heightened standard. But you have already conceded to one of my colleagues that there is an automatic burden on the article to clause by subpoena, period. Im sorry that i havent conceded that. What then are you conceding when you say that there is a burden, what kind of burden are you talking about, and number three, articulate precisely what problems you have with the heightened standard of nixon set in the grand jury subpoena. By response, but i acknowledge is yes a subpoena like this article to its potential burden and its those that have to be weighed out in the analysis. I wouldnt conceded the fact of the subpoena imposes, quote, an article to burden. I think that is a distinction that i withdraw. And again, getting back to the language question, it is the language that calls for a stringent showing that the request is directly relevant to the central issues of trial and charging decisions and again very simply, as a practical matter, no court and no prosecutor could meet the standard because in a grand jury, one is in thinking about charging the positions were centraof thecentral issues of tt is why i think the civil language of the doj is applying in its new height showing standard is just not workable. Justice kagan. On the question of the possible distinction between the state prosecutors and federal prosecutors, the president s lawyers have urged that there is a legal difference arising from the supremacy clause. I dont think weve talked about that argument yet. What is your response to that . I eluded to it before and i think all it means is that there is a balance to be struck between state prosecutors and the supremacy concerns against the rights of states under the police power is into the concept under federalism and the requirements of the tenth amendment to allow the states to exercise the rights especially in the criminal context which are so important. So, that is the parallel to balancing in this context, but its even more important given the concerns and the fact that the state prosecutors of course not only have the reserve police power of the state but in the context of criminal investigations, they ar were a large body of criminal conduct only prosecuted by the states, so that is the thing that has to be balanced. Justice gorsuch. Thank you, chief justice. The deferral of the investigation until after the presidency assuming statute of limitations issues were solved which is the assumption i understand, can you take off the concerns they would have about that is that we have those clear . Yes. Again, point number one would be putting aside the statute of limitation concern which i dont think one can discount because i dont think that its been addressed. That is our paramount concern at this point as the clock is ticking but even if that were to be addressed somehow at the risk over time by waiting losing evidence and witnesses and that kind of thing is a very real risk and i think the memo addressed expressly in saying the proceeding should be allowed to proceed with second, it isnt unusual, in the investigation regardless to delay because a president is still in office, as to the third parties and gathering of important evidence could yield them being above them all. Would you like a minute or two to wrap up . Yes, thank you. The issue presented here today is narrow but extremely important. We have a state investigation that is wellfounded and implicates no official conduct or executive privilege, involves a variety of third parties, faces serious time constraints and has been found to pose no article to burdens. These are well within the scope of the Legal Process for generations indeed act of 1807. Past decisions have found words already have robust tools to protect from abusive claims or demands. There is no need to write a new rule that undermines federal especially when such would create a risk that as well as third parties they could unwittingly end up above the law. Thank you. Thank you, counsel. Mr. Sekulow, just two minutes for rebuttal. Let me start with this, and there is some agreement the new york District Attorney acknowledges that their subpoena implicates the article to burdens. They also agree that there is harm that could arise if we think that those have actually existed. The other aspect of this is the order who carries the burden. That seems to be the issue that is left open. The position answer to that very clearly. It said the standard is carried by the party requesting the information. So it will be carried by the respondent in this particular case or has been their findings of the heightened standards being met. And again i think it is also important to remember, and i think that this came up in the context of earlier questioning there is a different stigma that attaches to the criminal process the physical litigation, and i dont think that stigma should be ignored in a case like this. The irony of all of this is the house of representatives and District Attorney issued essentially the same subpoena to the same custodians for the same records. The housthe houses that once ths so that it can legislate smart t for Law Enforcement reasons. The District Attorney says he wants the same records for Law Enforcement reasons it has no legislative authority. But what is really happening here couldnt be more clear. The presidency is being harassed and undermined in the process issued for illegitimate reasons. The copy speak to that end they saw this coming and structured the constitution to protect the president from this encroachment. A senator mr. President. The presiding officer the senator from maryland. Mr. Cardin thank you, mr. President. Mr. President , shortly, im going to make a u. C. Request. Im not going to do it now because were still working out some of the specific details. Senator scott will be on the floor when i do that. But let me just explain why im on the floor and my colleague, senator shaheen, a key member of the Small Business committee and one of the negotiators on the Small Business package is on the