All persons having business before the honorable the United States court of appeals for the District Of Columbia circuit are admonished to draw near and give their attention, for the court is now sitting. God save the United States in this honorable court. Case number 1954. Oversighttrump versus and reform of the u. S. House of representatives. Good morning. May it please the court. In april of 2019, when the Oversight Committee issued this subpoena, it had an extraordinarily broad view of its own investigative authority. According to the committee, the power of the subpoena subpoena the president s personal papers is coextensive with the power to legislate. Ordid not to give any reason legislation and it had no duty to tailor its request. That view of its own authority is reflected in the subpoena which is drafted an incredibly broad terms and is little more than a vague sentence in a memo about legislation. But the committees view of its own authority was rejected by the Supreme Court in this case 90. It substantially restricts congresss power to subpoena the president and in response to committeeion, the does not withdraw, narrow, or even reissue subpoenas. It instead attaches a 25,000 word memo to the back of a supplemental appellate brief in a sense to argue that this ratifies the standards. That strategy is impermissible under the governing law and violate the procedure. This court should reject it. If i can it says in the supplementary brief that we can still rely only on the record. Case, doesnt that raise concerns about the memos . If this were limited to the comings memo alone, we still have our argument that the District Court is better positioned to apply in the first instance, but it does four factors identify legal questions here that we can ask. I understand your argument that you dont believe we could , the court subpoena identified four questions. In fact, i think in the briefing you say those are legal questions. Two responses. Reviewthis is a court of and it benefits from a District Court application of a Legal Standard in sharpening the issues for review. But moore mccormack, secondly, we do not believe that all four factors are purely legal questions. Example, whether a subpoena the president is necessary to complex the legislatures goal. That question involves questions such as what efforts have the committee made so far to obtain this information, with those out as the fruitful, those are all questions asked. The comings memo says nothing about the session. The maloney memo says quite a bit. I hear what youre saying, but what the committee is they have the burden to show that what they are seeking is. They told us that this record is sufficient. He does say he believes he can sustain this on the existing record and i dont see why we need to have more factfinding. Norris understood, i dont disagree with most of that. Sorry, can you repeat that . Judge tatel i just said i didnt think you would disagree with it. Couldn you agree that we fact, nothing in the Supreme Court decision that we need a different record to decide this case. The court should just identify four factors. It suggests that it couldnt survive on this record, but the court didnt say that. Norris there is nothing explicit in the decision about this record. I do think there is implicit signal from the Supreme Court. The Supreme Court said that this committee has to identify legislative purposes with to identify ad particular legislative goal, loosely worded explanations are insufficient. I do think that is quite a good description of the comings memo that they are considering laws and other legislative proposal. It is quite vague and quite insufficient. That is my main answer to the court limiting itself to the memo, the main response we have two that is that the committee cannot possibly win on the existing record. The memo does not sufficiently identify specific legislative does not provide the specificity reports that was required. Theres no explanation in the othert record as to what efforts the committee has made. They do have the burden of proof on a question and i understand there has never been a subpoena let alone a document request for these particular documents that was ever said to us. Never even been an attempt. The first request for this toticular documents was sent a neutral, thirdparty custodian. They have attempted to subpoena us. I would direct the court to page 105. The committee has a process whereby if it subpoenas you directly, it has a requirement has agreed to. That accommodation process does not apply when the committee uses a subpoena to a neutral, thirdparty. When it uses that process, it has no accommodation harmons. Someommittee has made unrelated requests Trump Organization and two other executive agents is. S, you look at those request those request each time are much narrower. I think that demonstrates that when the committee has to go through the accommodation and intends to focus on exactly the information it needs, it goes after neutral third parties. I think you are starting to that yout aspects iht of them random think you meant that you would factually dispute. I just wanted to make sure i got your point on what you would consider to be factual. Norris i think the question is what to be in dispute in Summary Judgment. Several subfacts that we dispute their characterization of how accommodation efforts have gone so far. It productiveck information from us to the Trump Organization to white house counsel. There are points what do you mean by that . That hadr position they made a request directly of the Trump Organization, documentation would have been forthcoming that was not forthcoming from attorneys . I just want to make sure i understand. Documentation would have been forthcoming had it been requested. It is more of a mixed question, i would say. Im asking for your factual response to this position. What do you mean by that statement . Is it a procedural step or are you saying factually that something when it changed . Factually that something would have changed . Norris we have brought legal challenges to the subpoena that we still make. We still think this request would be illegal. Im not asking that question. Norris weve been perfectly willing to negotiate in many of these cases and we would do so here as well. But you would have not responded because of your legal objection. Norris we would have raised our same legal objections. Theyre still would been room for negotiations. Judge millett of course it could, im asking would . Norris its hard to know. Judge millett i dont think thats hard to know. Was the concern here that we were going to work with you further than what the executive do, the attorneys of the organization have been in the past that wouldve been a more fruitful course or was it more of a procedural objection . I cant predict the way this negotiation is going to go but we have a very good relationship, a lot of respect for him. I dont have any authority. Norris i just mean on the procedures. Judge millett i just meet on the procedures. Norris correct, but there hasnt been much opportunity. Judge millett you had every opportunity, you can volunteer and look. ,ou dont need a court to say you could have initiated this process on your own. You could call the appropriate look, lets see if we can work something out here. But that hasnt been done . Norris your honor, there have been discussions. I admit theyve been limited. Andparty has fairly diverse views on what the law requires who is likely to subpoena. Respectfully, we prevailed in the Supreme Court. I do kind of think the ball is court in terms of helping narrow and confine the types of documents theyre interested in. In fact, in the parallel litigation, there are three subpoenas involved, the house withdrew after the Supreme Court decision. Theres been no similar efforts in this case. Judge millett i really wanted to get your list of things. Is there more to that one . Norris there are representations about what was produced. Is of those representations that the committee reviewed several documents in camera that were insufficient to satisfy its goals. Theres no explanation as what those documents are and why theyre insufficient. Judge millett are they allowed to describe the content of those disclosures . Honor, perhaps not, your judge millett im just trying [indiscernible] im sorry, just as maloney. The Supreme Court said that the committee needs to identify its legislative goals, needs to provide evidence. And we thoroughly dispute that the committee is genuinely pursuing this legislation, that iubpoena is an attempt believe im maybe over my time. Judge millett thats ok. About we have a dispute whether the legislation identified is truly what is being pursued by the committee, whether these requests are reasonably necessary or reasonably relevant to that legislation. , we takehat dispute ourselves to a time where the memos on the record, there have been a lot of shifts in the explanations. Courtrted in the district with the informing function that the community wanted this information that provided to the public about the president s finances. We moved to a hearing about Michael Cohen and his supposedly misconduct. There is a march letter explains that is what the committee is looking into. Then there is the discussion of impeachment. Now, we have the maloney memo that really takes Michael Cohen and puts them in the background. His allegations are no longer the substance of the investigation but we believe there are separate investigations that are now being used. Norris under the Supreme Courts decision and to the points you are just making, do we have to accept the Committee Legislative purposes on their face, or can we inquire as to the validity of that purpose . Can the only inquire into the validity of the evidence that itsress uses to establish purposes . Norris i think the court said of the Community Needs to justify with evidence. Part of that is that evidence needs to justify the significant steps of involving the president. I think that is a fairly searching review of what the committee is doing and barely evident sheer in fact based. Part of that is the Supreme Court and other courts must insist on a subpoena. Searching forirly review. Examplecan you give an judge millett judge millett can you give an example of a subpoena that would be reasonably necessary . One of the main takeaways from the Supreme Court decision is that we have to balance these competing interests. Im wondering, what would it look like . You think this is not reasonably necessary, what would it look like for congress to say that something is reasonably necessary . Norris i think the easier examples are the ones that caused the Supreme Court to not accept the standard. The court was concerned that the president s papers are not just purely personal sometimes but sometimes they are infused as official and it would be a thing to go to the function of executive agency. I think2 if you look at sectionc section 2c. Im sorry, go ahead. Norris i do think the court was thinking about personal papers that are infused as official. Personal papers . That seems very confusing to me. Norris i believe there was an example given in the opinion had president reagan diaries, the most personal documents you can imagine, but they had some relevance into an investigation that involved canada, i believe is the example in the Supreme Court opinion. But you can see instances like that. The Supreme Court also said in the next section that purely personal papers like the ones issued here have invoked less evident connection to legislation and so these types riskses pose a heightened of something impermissible rather than focusing on true legislation. Can they ever sees the president personal papers for interest . Is there any time when such court papers would be permissible to seize . Norris i think the Supreme Court opinion, justice thomas, only know from the opinion is that their vacations will be very rare. Personal papers have a less evident connection to , that Something Like exposure or Law Enforcement is involved. I dont want to say never. I dont think the Supreme Court said never. Here are the rigorous requirements required before that is allowed. So i want to ask you questions on making your brief, i want to be sure that we agree on what we have to decide here and what it is we dont have to decide. Courty that the supreme unanimously rejected the panels view that house rules and regulation authorizes. And curious about that because when you argue that before the court, the court never mentioned this issue at all. It would not have had to even address the question. Those arguments the adequacy of the House Resolution norris yes, your honor. Judge tatel could you explain that to me . If that is an average, what we meant was that the for house rules reasoning was rejected by the Supreme Court. Quite clearly, this subpoena does raise separation of powers and constitutional concerns. Yes, but that was to articulate four factors. They didnt say anything about the adequacy of the house. Right . Norris there is no discussion of the house rules and the court opinion. It vacated this court decision. It vacated it with instructions to proceed with the opinion . Right . Here, i wantstions to be sure we understand your position. Lets set aside the debate about rulings here. Even if you are right. Right that ite doesnt have to go back to the District Court. We will be sure that we understand each other. The court has vacated the opinion of the circuit, which is the directive to apply in this case. Correct . Norris i would dispute some of that. I think in vacating the entire decision, it would have been fairly easy to drop a footnote saying that we agree with the lower Court Analysis of the other remaining arguments in this case. It would have been easy to affirm in part and vacated part the decision on one sufficient basis to decide two consolidated cases. The separation of powers reasons was a sufficient to vacate. The opinion of this court completely, we cant prevent you if the judge tatel Supreme Court had agree with you , it argued before the court. The argument that you made is that there is no need to address these questions because the House Resolution is inadequate to authorize. Had agree witht you, it could have agreed with you. Just invalidated a subpoena, but it didnt do that. We know from clear Supreme Court precedent, constitutional avoidance, that is easy. You can avoid all these difficult questions by declaring the House Resolution is inept, but the court didnt do that. I thinkdont see the court would be stunned if we have taken a look at this again and now we realize the House Resolution is you think . Norris i understand what you are saying, i think it could have just as easily judge tatel i understand your argument. You think the Supreme Court takes constitutional avoidance seriously . You think they consider it essential predicate with great constitutional questions . Norris i do. Noncase given that they were two consolidated cases, two sense of households that would have to be investigated. Can i ask you in related question . Even if we were to reconsider your core statement that the houston not clearly give this power to the committee, what about house revolution 507 . Isnt that a clear statement . What more could we ask from the house . If we were to say you need to make a clear statement, what could they do . What would you envision that they do other than Something LikeHouse Resolution 507 . Norris our position is the same, they would need to amend the house rules to specify their authority to get the president s personal papers and then reissue a new subpoena under those rules. So you would have a court tell the house what format it in terms of organizing the authority of its committee, but a court should say you have to do this by a rule and not by a resolution . I mean, isnt that judicial interference . Idle think so, i think that flows from the court cases in this area. So even if we accept tobin, whitest resolution 507 in that . Are you saying it is not enough because it is not able . Is that a distinction that should matter . From a judicial perspective . Norris i think the distinction is that it is not fit to amend the house rules. They are essentially jurisdictional for the and so i do think there is a difference between a with the outcomes of an investigation versus one that takes the place apart work to change the house rules and reissue a subpoena. The majority opinion from the court in this case earlier that the resolution does not amend the house rules, there is a separate argument that weve made which is that even if it questione is an open about the timings, went to reissue the subpoena or whether you look at the authority of the time and whether that could be retroactively amended. These questions were litigated the first time around. The things we were not write about was whether this case presents some of those constitutional questions and whether subpoenas for the president s papers do indicate the house authority. Authority. Es following up on her reading a sentence , the supremesion Court Vacated our entire opinion but expressed no opinions on the merits of these holders before the court. It would continue to have president ial ra