Transcripts For CSPAN Supreme Court Oral Argument On Congres

God save the United States and this honorable court. Chief Justice Roberts the first case we will argue today is case 19715, donald trump v. Mazars usa. Mr. Strawbridge . Mr. Strawbridge before these cases, mr. Chief justice and may it please the court, the subpoenas at issue here are unprecedented in every sense. Before these cases, no court had ever upheld the use of congres subpoena powers to the records of a sitting president , and no one had tried with a broad swath of the president s personal let alone purpose of a potential legislation. There is a reason this is the First Time Congress has attempted such a gambit. Because congress has subpoena power, it is subordinate, and when that power is deployed against the president , it must yield absent any longstanding tradition or particular compelling showing of need. They show neither here. Satisfied, butas thoseguments would limit meaningless. For example, as long as they could tack on a potential for broad legislation. They claim congress can use subpoenas to uncover individual wrongdoing, simply because that will always informed the sufficiency of existing laws. And they challenge this courts ability to even question the constitutionality of the potential legislation they rely upon. The committees obvious overreaches sufficient to invalidate these subpoenas even in a typical case. But the court should not proceed against the president as it does against an ordinary individual. The committees have not even try to show any critical legislative need for the documents these subpoenas seek. Now, it is no secret the relationship between the house of representatives and president is frayed, but this is not the first or last time one house of congress will be at odds with the president. The rule the Court Applies here will affect this president but the presidency itself. The court should deny the committees blank check they seek. Chief Justice Roberts mr. Strawbridge, i want to make sure i understand the scope of your argument. Your brief begins by questioning whether the house has any power to subpoena president ial records , but you seem, at the end of the brief, to pull back from that. You say such subpoenas press the outer limits of congress and that there is every reason to doubt whether subpoenaing the personal documents of the president is a necessary incident of lawmaking. Do you concede any power in the house to subpoena personal papers of the president . Mr. Strawbridge i think it is hard to imagine that the house is ever going to have the power , you know, pursuant to its legislative powers to subpoena the records of the president. Because, quite frankly, the house has limited powers to regulate the presidency itself. So i think its very difficult to imagine a situation where its implied power to subpoena chief Justice Roberts well, thats another formulation for what i was just focusing on, difficult to imagine, a reason to doubt, in other words, is your position, does it recognize in a particular case that the congress, the house may have such authority and that in such a case it would be for the courts to decide whether it has exceeded any bounds in that situation . Mr. Strawbridge yes, we have argued that at minimum, this court should apply a demonstrated need standard in this case, where in other cases when there is an attempt to serve process that targets the president. Chief Justice Roberts ok, you say there is some power in the house and you think there is a high standard. I understand the house to concede there is some limit to its authority. It sounds like, at the end of the day, this is just another case where the courts are balancing the competing interests on either side. Is that the wrong way to look at it . Mr. Strawbridge well, i dont think we are asking this court to do anything different than it has done in an ordinary case. We are just noting that the restraints on the power of congress are emphasized in this case, because this is a separation of powers dispute. Chief Justice Roberts thank you, counsel. Justice thomas . Justice thomas . Justice ginsburg. Justice ginsburg counsel, in so many of these prior cases, it was a cooperation, for example, tax returns. So it gets to be a pitched battle here, because President Trump is the first one to refuse to do that. Initially, he said because an audit was ongoing. Now it seems to be broader than that. But the aura of this case is really sauce for the goose that serves the gander as well. So how do you distinguish, say, whitewater, when president clintons personal records were subpoenaed from his accountant, or even Hillary Clintons Law Firm Billing records were subpoenaed. In prior cases, you say this one is oneofakind, but it seems in prior cases, it was a much greater collision of interests. How do you distinguish all of those cases watergate, whitewater, the paula jones case . Yourtrawbridge well, honor, we distinguish them in a number of ways. With respect to watergate and whitewater, obviously, those are recentf relatively vintage, and in separation of powers dispute, this court has generally looked back for a much longer precedent for the type of issue that needs to be decided with examples of the encroachment on the separation of powers. The recent examples are just a handful of them that the house identifies are too recent under that stricture is the court recognized in southwest general. Its important to note that in all of those cases, they actually involved cooperative efforts. As the court recognized below, consent is not the major of constitutionality. None of those cases was there a challenge to the scope and power of the legislative committee to request those documents. Chief Justice Roberts thank you, counsel. Justice thomas. Justice thomas thank you, chief. Counsel, im very interested. Do you think that there are any implied powers for the congress to request or to subpoena private documents . Mr. Strawbridge i think that there might be limited powers in some cases for the house to subpoena private documents, although the court has been clear in watkins and another of other cases that congress lacks any power to just inquire. Justice thomas would you define what you mean by that limited power . Mr. Strawbridge we dont quarrel with the general notion that congress has some implied power to exercise its legislative powers. And we recognize that in some cases, congress has been able to seek information that would be directly relevant to its consideration of potential legislation. But as the d. C. Circuit court recognized and judge livingston recognized below, most often, it will take the view of forwardlooking information is across aggregated information and not attempt to reassemble a precise factual history. Justice thomas in the d. C. Circuit opinion says that this sort of information or subpoena should be requested under the impeachment power. What is the line between the a legislative subpoena and an impeachmentrelated subpoena . Mr. Strawbridge well, in kilborn, this court recognized that there were two very different powers, and when impeachment is properly pending, the ability to subpoena pursuant to impeachment is coextensive with that of the courts. Of course the Court Subpoenas are not unlimited, but that has no bearing on this dispute , because the committees have waived any reliance on impeachment, nor could they. These committees dont have jurisdiction over impeachment. Chief Justice Roberts Justice Breyer . Justice breyer all right, i would like to followup on the previous questions. Under Justice Thomas questions, are you saying that sam ervins subpoenas, which were done on the legislative power at the time of watergate, which was fairly broad, are you saying they were unlawful, that the court should not enforce them, yes or no . As to Justice Ginsburgs question, i would like to know why, since in watergate and other cases, watergate particularly, the court gave contested material involving the very workings of the president ial office to the prosecutor. Why isnt whatever standard applies to personal papers a weaker one, not a stronger one . Well, if i can answer that last question first i think the court cannot refuse to see what others see, to quote bromley, and the threat in this case of subpoenaing a decades worth of papers, not only of the president , but his family members, his children and grandchildren, as the house has done in this case. Thats an obvious problem with harassment and discharging duties 24 hours a day. Unlike congress, the president is never in recess, and these type of subpoenas are going to be particularly troublesome and burdensome. Justice breyer are you saying that a weaker case whatever it , is, why wouldnt whatever standard applies to personal papers before the presidency be equal to or weaker than the standard for material that is the workings of the administration at the time . Well, settinge aside any executive privilege concerns, which i understand is not the focus of your question, the answer is because congress or this court has repeatedly emphasized, in kilborn and watkins and everywhere else, that congress has power to inquire into the private affairs of any individual. And that is distinct from whatever interest they may have informing themselves about the workings of government. Now that informing power does , not extend to the president. It generally applies to lower executive Branch Officials and agencies. Justice breyer thank you. Are you saying that the Ervin Committee subpoenas were unlawful, yes or no . Mr. Strawbridge we do not argue that and we do not mean to address the power of impeachment, because its not an issue in this case. It wasnt impeachment. Chief Justice Roberts Justice Alito . Justice alito counsel, are there any circumstances in which a house of congress can justify a subpoena for a sitting president s personal records on the ground that it wants to use the president as a case study for possible, broad regulatory legislation . Mr. Strawbridge i think its difficult to imagine, for a couple of reasons. One is, even setting aside the fact that if the president , this court has always required some showing that the information being sought is pertinent. And i think the swath and the scope of the subpoenas issued here create serious problems, even in an ordinary case. To directly answer the question, no, the president s personal papers are not related to anything to the working of government, and for the committee to declare him a useful case study is to open the door to all sorts of president ial requests. You could have subpoenas seeking all of jimmy carters financial history, simply because he used to be a peanut farmer, and they want to case study in agriculture. You could have all sorts of requests for medical records, for educational records, any imaginable detail personal records, because congress does have the general power to legislate in lots of areas. Justice alito perhaps before my time expires, i can ask you one other question. I think you said congress has limited power to regulate the conduct of a president. Does congress have any power to regulate the conduct of the president , which is in office that is created by the constitution itself and not by congress . Mr. Strawbridge the answer is not very much. They apply avoidance principles to avoid having to decide whether congress has attempted to reach the president. Now, the one example, obviously, in recent history is the nixon v. General Administrative Services case. But even in that case, it was a very limited right regarding president ial documents. One could imagine maybe some hypothetical where there would be limited personal papers that might be relevant to a question regarding custody of official documents. But, of course, even in that case, the constitutionality of that was not seeking the president s personal papers, and that control remains in the executive branch. Chief Justice Roberts Justice Sotomayor . Justice sotomayor council, sel, there is a long history of congress seeking records and getting them, as Justice Ginsburg pointed out, from president s. And some of those cases, we have said, especially eastland, that a congressional subpoena is valid, so long as there is a conceivable legislative purpose , and the records are relevant to that purpose. I see a tremendous separation of powers problem, when you are talking about placing a heightened standard or a clear statement, the various formulations of this, on an investigation that a committee is embarking upon. Now, i understand your complaint about the Financial Services subpoena on the Money Laundering issue. But are disputing that the stated purpose of the Intelligence Committee subpoena at issue, investigation efforts by foreign entities to influence the u. S. Political process, and related to the financial records of that, that those were irrelevant to that purpose, and thats an illegitimate purpose by the investigative committee, by the Intelligence Committee . Mr. Strawbridge well, taking the relevance question first, yes, even if you accept that there is some legitimate legislation that could be had that reached the president , because what we are seeking is president ial finances, when you look at Justice Sotomayor pardon, sir. Not president ial finances, we are asking for his personal tax returns before he became president. Those are very different things. And we are not asking him to produce it. And some of the subpoenas that congress, through history, as far back as 1792, have asked for personal papers of the president while being president. This is before he was president. I dont understand. It is and they are not his papers, in the sense of hes not in possession of them. These are subpoenas to private entities. Mr. Strawbridge ok, so there are a number of issues there. With respect to the custodian issue, this court, even going back to eastland, has recognize d the ability of a person whose records are in the hands of a third party to come and challenge them, and thats certainly the case here. Justice sotomayor what do those papers have to do with executive privilege questions . They are not personal papers. All those cases have to do with papers that belong to the office of the president. Again, these are personal papers. Chief Justice Roberts briefly, counsel . Mr. Strawbridge eastland was not did not even raise eastland. I guess the point i would make is that whatever point it has made previously, it should not put any finger on the scale for congress assertive legislative power, and in numerous legislate a power cases, starting with kilborn, stating that congress had a legitimate power. That was also below in the d. C. Circuit in tobin and even in the at t cases. Chief Justice Roberts Justice Kagan . Justice kagan good morning, mr. Strawbridge. This is not the first conflict between congress and the president , as many of my colleagues have pointed out. We have never had to address this issue, and the reason is because congress and the president have reached accommodations with each other , and sometimes one has got more and sometimes the other has gotten more. But there has always been this accommodation seeking. What it seems to me you are asking us to do is to put the kind of 10ton weight on the scales between the president and congress. And, essentially, to make it impossible for congress to perform oversight and carry out its functions, where the president is concerned. And youre quite right, in what you said before, that this is not going to be the last such case. I wonder whether that fact is not a good reason to reject your proposed rule. No, irawbridge well, dont think thats the case and for several reasons. One, the fact that this is the first time that congress has attempted to subpoena this scale and best scope of documents from the president. And none of the other historical cases involved a direct subpoena for the presence documents the way this one does. It requires this court to draw a line. Its unfortunate the house did not seek to get these documents directly from the president but simply ran to thirdparty custodians. It limits the number of defenses the president can bring, but even on the test, this court has always applied, in this scenario, these subpoenas fail every hallmark of a legitimate legislative investigation. Justice kagan go ahead. Sorry. Mr. Strawbridge i was going to say whatever Power Congress has to conduct oversight of lower Branch Agencies or to inform itself as to the workings of government, these documents not relevant to that, and that power does not extend to the president who is a separate constitutionally created officer. Justice kagan i think some former president s might contest the idea that these subpoenas go further than has ever gone before, and this brings me back to what Justice Breyer has said. These subpoenas are for personal records, where the president is just a man. They are not for official records, where the president might have executive privilege, where we have to worry about the conduct of governance and about the way the executive branch operates. And as with Justice Breyer, i guess i would like to hear your views on why that wouldnt suggest that there is a lower standard here, not a higher one. Mr. Strawbridge well, because, i guess because the fact that they seek personal documents doesnt mean that they are not targeting the president and, indeed, the Oversight Committee and the financial the house Intelligence Committee have identified the president in his role as president as one of the motivating factors for their investigation. Secondly, as this court noted, even in clinton