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 Like House 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 race. To thesnt that apply House Resolution constitutional avoidance . We dont dispute that principle. We dont dispute that principle from this courts case law. Judge tatel you dont . Norris but president ial weights does not mean finding, that means that they get an opinion continues to have persuasive force. Judge tatel no, no, not the opinion, is talking about the issues that are not decided by the Supreme Court. Norris correct. Judge tatel the House Resolution. Norris correct. We dont disagree with that sentence. The vacated issues are not passed on by the spring or a continued to have a persuasive force. The Supreme Court and speak to the issue directly to this court is not forbidden from resolving those. They have persuasive force. The key part of that sentence is that an absence of contrary , Supreme Court opinion has reasons to disturb all of the Prior Holdings of this court that it has specifically addressed. The statement we just discussed, the court told us that even if the subpoena were issued by the entire house, separation of powers concerns. In terms of Law Enforcement and exposure. Judge tatel you are certainly right about that. On theust focusing simple question that you raise in your brief. About whether or not the House Resolution is adequate to support the subpoena. Whyim trying to find out it is still an open issue for us. Court not supreme only argued and instead address the constitutional question, rejected your demanding view, rejected the houses view, articulated four factors to apply . Rejected the houses less demanding view and the force factors to apply. It did all that. We did argue im hesitant to put a lot of weight into Supreme Court opinions sorry, you just broke up. Could you go back to beginning . Go ahead. Im sorry, judge tatel. Interpreting silences in Supreme Court opinion is always a dicey exercise. Articulate nonsilence . [laughter] exactly. But i do think the Supreme Court didnt confront the constitution question in this case is whether the subpoena would be enforced. The Supreme Court articulated a test for how to assess congressional subpoenas for the president s papers. It didnt apply the test itself. It gave guidance. It thought that guidance was sufficient to vacate the decisions of this court in the Second Circuit and remand and that we believe with all the issues back on the table with the Supreme Courts guidance in mind. Okay. Mr. Norris, i have one more question. Do you think in this context the District Court or even this court has the authority to narrow the Committee Subpoena . Is there Judicial Authority either in the District Court or with us to do that . Or would such a subpoena have to be voted on by the committee . Weve argued there are cases that narrow congressional subpoenas. I do think the Supreme Courts opinion in this case may have overtaken those prior authorities. The court has a line that says, paraphrasing here, i believe its the court must insist on a subpoena that is no broader than reasonably necessary. Insist on a subpoena sounds to me what we argued initially which is the subpoena needs to be good. If there are defects, the court can identify those defects and the committee can fix those specific defects, but i do think the committee needs to go back to the drawing board and do the work except. So theres no possibility for narrowing the subpoena by the District Court . All i can say, judge rao, courts have done it in the past. In terms of whether they can do that, i think thats questionable in light of the Supreme Courts decision but, of course, we would be happy with a narrower subpoena compared to the subpoena were not. Compared to the subpoena we have now. Thats one of the reasons for remanding, right, this hospital District Court might have some Greater Authority to narrow the subpoena. Im wondering if that is even an authority that the District Court has . I think it is an authority they have, it would be a benefit. I also think, with given other we have given other reasons why the District Court is better suited here especially to evaluate the effectiveness of accommodations, where the facts in the record. Judge ramos in the Southern District of new york, parallel Second Circuit case, said its if this were a normal subpoena case, he would have forced the parties to narrow it down to the key dispute. I think that our supervisory factfinding and even legal questions that District Court is well suited to address. A followup. [indiscernible] it is your position that that injunctive relief cant be granted in part by a District Court . It is all or nothing, or do you think you can get a partial injunction . I think thats exactly the question that is in the case law is our position is completelaint injunction, or is it your complaint without a District Court to grant your motion as part and denied in part . Correct. We sought to quash the speed in full. I am going to try one more time. My question to you is [indiscernible] is it your position that the District Court would have the authority in your complaint to grant your request for injunctive relief in part, but not in whole . What is your position on that . One, does it have the authority and two did it reserve that request in our complaint. Answer them the both. Us as allly serves the appropriate relief which would encompass lesser injunctions. The appropriate relief from this accord with encompass narrowing the injunction . Im not talking about the court of appeals, the District Court. Correct. Thats what i was trying to figure out, thank you. I dont have any more question. Judge rao . No. Thank you, mr. Norris. We will give you a minute or two on rebuttal. We will hear from the committee. May it please the court. Can you hear me . Just making sure. Yes. Im the general counsel of the house of representatives, good morning, your honors. The court asks a wide range of questions, and i have notes on all of them, so i wish is going to jump right in and respond to the batch of questions the court asked. Can i interject with the question . Of course. Can litigation be plausibly be concluded before january 3 . Our review for option on the Supreme Court review . It definitely can, your honor. You can issue a ruling enforcing the subpoena in full, or in part. You can issue the mandate right away, then President Trump will have a decision whether to seek for the review at all, seek review en banc or cert, but presumably he would seek a stay and if that state is denied, then the material would be i assume President Trump would comply. The material within be released, then bematerial would released whether that would make it moot, a strong argument that would make it moved. All of the circumstances existed in the Harriet Miers case, yet the court postponed until a new congress. Honor was on that panel, so im going to defer to [indiscernible] anybody can read the opinion. My memory was that was closer to january 20 think that we are january 20 date than we are now. And it was also in District Court, District Court ruling. Here all of these issues are teed up in this court, could rule very fast. The court could issue lets go back to the Harriet Miers case. The timing was almost identical. I do not have the dates in front of me, but i think we were in october. The court made it very clear that it couldnt be resolved by the end of term. In fact, in your brief you distinguish the case by saying this case is different because in that case the committee conceded that it couldnt be completed by the end of congress. But thats not what it says. It says the committee acknowledged, acknowledged just the reality of the timing that lets assume the opinion is out in two or three weeks. It took a month in the most recent en banc, and by the way, court inhe en banc another case you have two d. C. , circuit instances under circumstances almost identical to this, we decided its best not to act until the new congress is in place. Its hard for me to see how to avoid that in this case. Two points, your honor, and i apologize, your honor, maybe you know in order issued that i do not. This Court Granted en banc and sorry, are you saying the court agreed not to decide i scheduled an argument, oral argument was scheduled for february. Your honor, remember that this case easily could be carried over into the next congress. This is something that this case and now. Yes. What happens thats what its exactly like Harriet Miers. First of all im not acknowledging apparently what was done in miers. Legally this court can and should rule quickly and enforce the subpoena, but if the court doesnt, then this matter clearly all that has to happen is on the initial day of new congress, january 3, it often happens that the congress then renews ongoing litigation, and we have a batch of cases that are in that same exact situation , and we fully expect that would be what will happen. Does that mean they would reissue the subpoena . I dont know how this technically works. Your honor, my understanding is that in the past the house has not actually issued new subpoenas, that the Committee Chair can just say, we continue with litigation of that subpoena. Thats my understanding of one way the house can do it. The subpoena itself does not have any kind of expiration . Normally it would, your honor, but in this kind of circumstance, my understanding is the committee, the whole house, this would be done on the first day of the whole house, and the whole house would say we are continuing the litigation. The house could say were continuing the subpoena, or the Committee Chairs could do so. That would be up to the house to decide. The whole house my understanding is thats one way, your honor. I just dont know the answer. Do we know who the Committee Chair will be on january 3 . The Committee Chair that could change, right . Changes, ofjority course we dont know. If the majority holds and there been many, many times in the history of the country where it holds to the same party, and then in that circumstance of very large percentage of the Committee Chairs remain the same. And so the Committee Chairs, my understanding, a practical matter, would be doing things at the beginning of the new congress before all the committees are totally set. It can take some time for Committee Assignments in total to be set. The full house continues yes, your honor. Your answer to judge millett makes it even closer to miers. We say in miers, and im quoting here, if the case does not become despite the expiration of the subpoenas, there would be no precedent for immediate petition. That is what we said in miers. We said it has the additional benefit of committing the president we dont know about that presenting the new house an opportunity to express their views on this. It seems to me almost identical to the miers case. Your honor, there are some significant differences here. Here. By the way, i have now been informed that the committee im sorry, your honor . I missed what you just said. Say with the significant difference is. Yes. I need to correct something i said a moment ago. I am told that you new subpoenas would be issued but could be identical, and what happens is the Committee Chairs are selected in december, so we would know on january 3 the Committee Chairs are. So the Committee Chairs, and remember, the Committee Chairs for all committees issued subpoenas under current house rules. That would be known on the first day, before the first and women before the first day we would know who the Committee Chairs are and the Committee Chairs , consistent with what the whole house does on opening day, the Committee Chairs would the would renew identical subpoenas. In light of an intervening Supreme Court decision, think about whether they want to we dont know if that would happen automatically. They might want to think about whether they want to invite of a Supreme Court decision, invited intervening facts, whatever. Your honor, thats no different from today. If the Committee Chair wanted to change or withdrawal anything with the subpoena, Committee Chairs are free to do that right now. It might be, but if you have changed membership obviously if this change in party, a change in membership or if you are issuing subpoenas, logical time to revisit issues. And so sorry, i wanted to get quickly back to the question on which differ. We have had longrunning litigation, as your honor mentioned, this courts prior opinion was vacated, but under circumstances that it remains binding precedent on a whole batch of issues. So this court, unlike in miers, this court has already ruled on most of the legal arguments here. The Supreme Court has said didnt give enough way to separation of powers issues because we should consider this a subpoena against the president , and therefore we need courts to weigh under four factors the Supreme Court said would be taken into account. Thats a very, very different from the situation in miers and indeed for the recent study been for the reasons shared in our brief, we think most of the key issues in this case have already been decided and not touched by the Supreme Court. Thats why it seems to me this court could and should rule. This litigation has been going on for an extremely long time , and theres no good reason for the court not to issue its decision, issued its mandate, and you will see what happens. It may very well you said there were significant differences. What are the others . I guess the fact the difference in the status of the cases, two cases seem to be very significant. When i say status, that is singular, but there are various parts of the status that make up a plural. [indiscernible] judge rao might have. No, go ahead. You say i want to proceed the same questions with you that we talked to mr. Norris about, did i understand your brief correctly that you believe we can decide this case based on the current record, correct . Yes. Without looking at the maloney record . Yes. Can look at the record, and because i think this is hypothetical, and because i think at least two of the four i will tell you what they are. Two of the four factors seem to me to be much tougher than what we apply. It seems to have an exhaustion requirement in it, and it also reapplied for reasonable relevant standard and thats different, thats obviously a lighter standard than reasonably necessary. Suppose i look at the subpoena and i think that based on the cummings record it doesnt survive. Do you want the court to go on then and look at the maloney record where you say the gaps are filled in, or are you prepared to say you are happy to the subpoena live or die on the cummings record . What we said is this can be upheld on the basis of the cummings material, but if you have concerns about that, you definitely should look at the maloney memo, and we believe the case shows that you can. It seems to me obviously its not directly on point because we didnt have an exact situation like this on the Senate Select committee which Court En Banc looked at new material. Look at what happened outside congress. It looked at what happened inside congress, and it applied the circumstances of right then and there whether the subpoena should be in force. Should be enforced. Thats all were asking. Let me give you a very specific example. And again just a hypothetical. Yes. If i were to apply the reasonably necessary test to this case, i might wonder about the documents, subpoena going on all the way whether those, while they were originally relevant they may not be reasonably necessary. Still i think thats the case. Is it your position then that we should enforce the subpoena without those two years and we should go ahead and look at the maloney memo which would satisfy us that those to years unreasonableness or . I will answer the question yes, your honor, you should enforce the subpoena on the basis of cummings for 2013 and you should look at the maloney memo that then will give you the full grounds of why you should go back to 2011. I dont think the maloney memo actually changed the circumstances on that. If your honor please, i would be happy to argue about why. The cummings memo shows going back to 2011 but yes, you should as i said i answered yes, enforce part of it under cummings, look at maloney and that i believe will give you all the grounds for enforcing since 2011. Which if you dont mind, gets into the question asked before about could you enforce the subpoena in part . We think obviously we think the whole subpoena should be enforced but yes, we would enforce the subpoena in whatever way you think it is valid. The Deutsche Bank case, they thought one small aspect, the subpoena was there, should be , should not be enforced and so thats exactly what Second Circuit did. Is that you position the institutionally the courts can rewrite subpoenas from the house of representatives . You think thats within the judicial power . No, of course you cant rewrite subpoenas. What you can do, just like this court cannot rewrite statutes, but they make severability determination. The Supreme Court said they can do that all the time. And so what would be doing is you would be enforcing part of the subpoena, part of it not. Theres absolutely and by the way, this is obviously very normal practice in the regular rule of subpoena. Courts all the time enforce parts of it but that others. But this is not a regular subpoena. Its a subpoena from a coequal i guess have branch of government. [laughing] your honor, it is, it is from the entire house of representatives. Whose purpose is the only part that counts. Obviously this is a house subpoena and, therefore, the house speedy right but you are saying which is like any other subpoena. You are saying its the same. I think maybe its materially different and that limits our authority to modify it. Your honor, im sorry if i isspelled im sorry if misspoke. I didnt say it like any other subpoena. I said that you do this all the time with other subpoenas. I cant think of any reason why you would do this here. If you were saying, you know, youve made a very good case and action were going to extent the subpoena to 2020. I dont think you can do that. Or were going to say, in fact, we should also cover Vice President pence so we will do that. Of course you cant do that. You cant rewrite subpoenas. But just like the Supreme Court, and your court, severability determination all the time that , occasionally may look to some people like you doing some rewriting but you make very clear you cannot rewrite statutes but you do this all the time in severability determinations. I dont know any reason why that would be valid to. The question is on some severability. Is it your view the same duty to give affects to as much as possible place to subpoenas . Absolutely, your honor. This, this is a situation white where the house has said, the house and judge rao put up coequal branch of government, material and valid for us to get it, which this court agreed with. And, therefore, whatever the court finds some part of this cant be enforced, i do know any reason at all why you wouldnt go ahead and uphold what the house as a coequal branch has done. Im not aware of any theory that would say you should not do that. Im puzzled why that your own subpoena i think its a question. Obviously wants total control. We think the court should say that the house thinks the subpoena is valid, thats good enough for us but, of course, we are not going to get and the Supreme Court disagreed. But i dont know why, how they could ever possibly beat this court would say you answer ten items, we believe you are under the what entitled to eight but not the other two. We would say oh, no, if we can not get all ten then the game is over. Im hardpressed to think it would ever be a situation without the appropriate and for some reason if it were, the committee could say, no, its all or nothing that we probably wouldve said that in a brief in our brief. As the set of very hardpressed to think of a practical situation where that would ever arise. So obviously this courts obligation to uphold whatever congress does is proper. On considering the maloney memorandum, you referenced our decision in Senate Select committee that legislative developments there. Were those developments in factual dispute . Im pulling out the opinion to try to see whether there were any disputes. I didnt know if theres any factual dispute. Right. Theres no factual dispute you either. You can ask my friend mr. Norse. He gave me a list of things he does dispute in the maloney memo. Right. Theres no disputing about material facts. By the way, the original District Court, my memory is that President Trump agreed there were no material facts in dispute. I know, sure, but there was no maloney memo. The question is we consider we had a Summary Judgment record and now we have this maloney memo. Its judicial notice. We were given different theories for, but what seems to be Summary Judgment record the other side is arguing that they at a minimum we challenge some of the facts, at least within the think our material. That might be up to court to say there are material disputes. I think could bear some relevance, could argue could bear relevance to the Supreme Court there was enunciated in this case. And so that makes it not like judicial notice. It makes it not like Senate Select committee. So what is our authority for crediting everything in the maloney memorandum without the other at this level, this Court Without the of the site having a chance to offer its factual versions . Theres several questions packed in there so i will address each of them. Your honor, youre right, this Court Decides what is in dispute on material facts and opposition , there are no disputes about material facts because this court and the Supreme Court has made clear that what you look at are what congress what the house says is looking at, what it is looking into and why. And we satisfied this court last time on that, and what the maloney memo does come is it provides chairwoman maloney is statement, just like chairman cummings did. Chairwoman maloney statement of what the subpoena is about and why it is being pursued. This court, as it is than many times and the Supreme Court is done, this court must accept that. So theres no dispute. I assume mr. Norse is not saying that what we submitted with a brief was a fake, that the children no. Lets be clear. Thats not the argument, that is not what im saying. The point is theres more in that memorandum than heres our purposes. Right. Theres lots of recitation of what happened what interactions, request information from what response but information they got which might seem relevant to some people to the Supreme Court. That can be debated and argued. Right. Right. I was getting to that next. No. Theres nothing, you can disagree about whether we, the Committee Received one document or two documents, both irrelevant. We got some token tiny number of documents. So as far as what happened in accommodation, thats not material for this dispute. The Supreme Court never says anything about this court what , this court should you on is to look to see whether been sufficient accommodations. Thats not noted. With that be a relevant in assessing reasonable necessity . It certainly could be. The material fact is what mr. Norris admitted to you earlier. They have given us nothing. When i say nothing, again, they gave us some documents that are not on point, that a Public Information already. As far as what is in dispute here space thats an amazing reference when you say that. Who is the day . Neither President Trump or gsa. When you say they didnt ask the Trump Organization. We did. We did ask for materials. The main thing is since this case from the Trump Organization . Yes. Yes. And again, if i may, this has come up in every one of the subpoena cases, please bear with me for just a moment. This case, since his tax returns began every time the justice , department and or President Trump has said accommodations. Each time we point out the same thing. They have never, President Trump has never been willing to produce any documents. And remember, he has said that. He said we are not going to comply with subpoenas. So please, ask mr. Norris. I think you did this already, but its the same thing i said in every single court where i argued these cases. Ask counsel for the Justice Department or ask counsel for mr. Trump, what are you talking about . Is mr. Norris saying ok, well give you the 2014 Financial Statements . No. They are not giving us anything. So the accommodation claim is a complete red herring. Please, do not be fooled by this. This comes up every single case. We ask, we get nothing. So thats not, theres no dispute about whether, as a legal matter, we need to do more accommodations. They are not producing anything. And again, you heard that from mr. Norris. So thats not a material dispute. Material dispute is, would be if he said chairman pallone didnt say this. If chairman pallone did say it, thats what is appropriate for this court and Supreme Court precedents that makes it just like Senate Select committee. Mr. Letter, is it the Supreme Courts opinion that expressed some serious concern that the committee could not identify any information about the president that could be related to potential legislation . If you were to uphold the subpoena on say the comics memorandum, i mean, what would be the limit to what type of information the committee could seek . Could they say theyre interested in this president s Health Information because of his age or because he recently contracted the coronavirus . You know, what would be the limit . Can you identify one . Your honor, that we depend on that would depend on a different scenario. If a meet and this is not simply hypothetical. Suppose the president is going in for a major surgery. That would mean he would be under, lets say it would be a situation which would be put in a coma for a certain amount of time. As we know there are plenty of major surgeries that do that. So the president is going to be in a coma for lets say at least a week or two weeks. If that were the circumstance, clearly under some situation would be valid for congress to inquire, whether by subpoena or otherwise, what is the health of the president. Thats not this case at all. But would be the legislative purpose . One thing about the Supreme Court test, yet identify why the president , like a particular president information is reasonably necessary to your legislative purpose. But the more you focus on the particular aspects of the president , right, whether its his health or the briefs and the members repeatedly say this president s actions with respect to his Financial Disclosure. Doesnt that then move into the category of cases that the Supreme Court says are inappropriate, looking for potential Law Enforcement or exposure for the sake of exposure . Like the more you focus on a particular president , you know, concerned about a particular president , dont you start to move into the area into the areas of the Supreme Court has said are inappropriate . Your honor, that question gets right to the heart of this remand, and so i am very happy to address that. I think that is extremely key and i suspect its on the minds of all three of you. Yes, and remember, one of the main things were looking at here are president ial conflicts of interest because of financial things, and chairman cummings made that clear and chairman maloney explained that at great length. Congress has under the constitution, congress has power over Foreign Trade. Congress is asking this committee is asking, what conflict of interest do you have . Do you have, have you had, lets in 2012 did you sign a letter of intent to build a hotel in istanbul . Did you enter into a contract in 2014 with russian oligarchs . If the answer to that and we have no way of getting that information anywhere else, we dont know of any other way to get that, let me set aside just for a second. As we know theres been reporting, for instance, in the new york times. President trump is said at times, mr. Cohen is a liar and the times is wrong, ok . So, your honor, congress could say the president made a policy decision about what to do visavis trade with turkey or dealings with russia or china. The Oversight Committee absolutely has authority to find out, should we look into legislation to override those policy decisions because they were made as result of personal financial interests of the president . And, therefore, we believe those policies should be overwritten by legislation. That is absolutely clear it is within the power of congress. So we need to know, the biggest thing here maybe is we need to know what kinds of financial arrangement that, as we know, this president has extremely complex and opaque financial dealings. We also know that in his Financial Disclosure statements there have been very, very serious errors. So we need to know exactly for legislative purposes. But mr. Letter, those arguments, i mean, i dont believe those arguments are ones that you make in your brief. I mean, you focus on potential disclosure legislation or relating to emoluments. Now youre saying the president , alleged financial proprieties are leading to a number of other policy decisions that may need to be overwritten. We absolutely made this argument. Im hoping my colleague here can pull up page numbers for you but we actually made that argument, and it is discussed at considerable length in chairwoman maloney statements i believe, but we just check i think its at page 31. It begins i believe at 31 and it goes on for several pages. This rationale definitely is covered in our briefs and is in chairwoman maloney statements. Im told page 24 of the maloney memo is one of the places. If you what we can find exactly what are in our briefs. This is a key, absolute key part of our case. Other points, gsa. The suspicion is based by the press and the president says they are wrong, is that gsa may not have been given the appropriate information, for instance, about how much profit is being made. Mr. Trumps release at certain positions that mr. Trumps personal financial situation. Thats in the lease. Got that information from gsa directly . We tried and we were told we get nothing. So again, this is the committee that is being extremely responsible. It has very good reasons why it needs this information. And nobody can possibly argue that the committee cant pass legislation governing gsa. It could provide the gsa Inspector General who has expressed concerns about this very deal. The Inspector General shall be given more money, more inspectors, more power. We could pass legislation saying that there can be no contracts like this. You could pass this legislation without knowing the details of any particular problems that you might be suspicious of. And again thats the claim. This court and Supreme Court of said when congress doesnt have full information is like shooting in the dark. Let me just say, this court could issue based on lesson all of the facts. If you required by law to do it, you could do it but that would not be ideal. Here it is reasonably necessary for us to have the full information. And i will say it one more time. Remember, special ill say it one more time. President trump has said that that information is wrong. Its inaccurate. Its lies. So surely nobody thinks congress should ignore the president. Pass legislation that affects the president and the president team, based on information that the president says is wrong and lies. That cannot possibly be what the Supreme Court or this court thinks is appropriate. So yes, we have some information. Is it correct . Some of it, but the president says its wrong. So we need to find out what exactly is the situation. What exactly is the president s relationship with foreign countries, foreign companies, et cetera. What are the conflicts of interest . When he decided to do something with the trade agreement, was that influenced heavily by the fact that he has personal financial dealings . That is why we have disclosure. My colleague on this question on a brief, page 22 of our supplemental brief, its covered on pages two, eight, 19 and 38 of our supplemental requirements. So the reasons you were just giving that you need to figure out precisely what happened, why are those not more like Law Enforcement or exposure related reasonings, which specific court which the Supreme Court has said are inappropriate . Youre getting at the nittygritty of what happened is that usually what legislatures do, right . Legislative means enacting prospective rule for the future, not figuring out necessarily reconstructing the specific facts of whats happened in the past. So how do you think about that line which the Supreme Court says exists and that we have to be concerned with . Yes, your honor. Remember, that argument, you recognize that prior Panel Opinion recognized is a line and you rejected the argument that President Trump was making. Let me give you one most obvious example that comes to my mind. Congress did a massive investigation of 9 11. Obviously, a significant part of that was about Law Enforcement. What happened, why did lawenforcement not catch these people in advance, et cetera . What did they actually do . And what statute should be passed in the wake of that . There all sorts of legislation. Very often when you do know what happened in order to know what happened in this case it is there. It is not at all hypothetical. We know that President Trump, again, he has said these are wrong but he has had certain financial dealings with foreign governments and foreign companies. The president also has had dealings Foreign Policy and Foreign Trade dealings with these countries. We need to know what happened because we need to know whether to pass legislation to override determinations that he made. Clearly, its as you point out it would be legislating for the future but that includes, that cant include overwriting something that was done before. The gsa, we have got into this terrible situation now where we have the president is both the landlord and the lessee. So how did when you defined outcome is that what happened and why . And why did gsa allow that to happen . And so that we can decide, should we pass legislation and exactly what should that legislation say so that this doesnt happen again. Or if there is a second term, so that it gets in did. We can have a situation where, released we need to know, do have a situation where the president , or say secretary of state, is both the contractor and the contractee. Surely that is subject for congress to investigate. Let me say one more time, this president information is essential for that. Why is this different . Because of the president , we got this, of information, except, heres another key point, in the Clinton Administration where he provided tax returns, all sorts of financial information, but in two occasions they came out he was getting gifts towards the end of his administration and there were donations to the Library Upcoming president ial , library. Congress asked about those. President clinton, as all of his modern president precedence did, they all, he provided the information. Jimmy carter provide information, et cetera. All the president s have provided information. The only reason we are here as a Supreme Court recounts at the beginning of its opinion is this president has refused to cooperate at all, unlike all of the modern prior president s. Thats why you are here. So the situation is sui generis then a circumstantial legislation . Absolutely. Again, suppose we have a trade deal with the president decided to end or didnt end. Yes, we can pass legislation suppose, as i said gsa. , we can pass legislation to say the Inspector General for gsa shall henceforth every three months demand from any gsa contractor, which would therefore now included the president. Certain information. Or gsa shall make sure that better any time a government lessee attain public office, the contract shall end. We can provide that by legislation, right . So these are all things that Congress Needs to know as part of its oversight function in order to definitely lead to legislation. The last thing is emoluments. This court already ruled that the Supreme Court didnt touch , it so it is there already, but let me just point out. The constitution says that congress can approve emoluments. Well, foreign, not domestic. Well, so maybe Congress Wants to pass a statute that defines emoluments. And we know this is Something Congress is interested in. We have already done it but based on incomplete information. The house passed a bill already but it would be much better to pass the bill with full information. What exactly is the president getting from foreigners, from foreign governments will help us decide how to define emoluments, which the constitution seems to provide to congress. Any other . Any other questions . No. Ok. Thank you, mr. Letter. Thank you, just in rebuttal. One point under the cummings record the committee cannot satisfy the Supreme Courts the cummings memo that was attached to the subpoena has no specificity about the committees legislative goals. Many of those goals and once my friend just recounted to not even satisfy this court litmus test at a specified in the prior opinion. They are not laws directed at the president regulating president ial finances. To the extent the subpoena does pursue those types of law, it does not justify the significant step of involving the president. Those are basic policy judgments, cases like Senate Select safety do not need to get with the committee calls a detailed understanding of the president s Financial Statements. Would you agree that if congress is going to pass legislation that regulates the president , i dont meet the individual president , i just think the position of president of the office of the presidency, that Congress Needs to step carefully and draw lines carefully so it needs to walk a fine line there that it may not need to win regulating of the folks in the executive branch . Would you agree with that . Yes. Dont you need precise facts of what exactly the problem is to ensure you told that line to walk that line . I do not believe to determine whether you should require precise values instead of ranges and what is the matter how far back to disclosure laws should go. I do not believe you need what the committee called a detailed understanding of the extent and complexity of the president s finances. I believe that is still overstepping. They cant shoot in the dark right . , they cant make assumptions based in other executive branch officials. I assume youd say diverting the voting did understand the nature of this precise problem and target that with legislation because overshooting could have its own constitutional consequences. We do not want them to overshoot we do not want them to overshoot and we do think so understand the exact nature of the problem is important. Yes, your honor, and the maloney memo [inaudible] it describes the problem as glaring and obvious, words it uses in that memo. Its already pinpointed the but theres some problem there, right, theres plenty of smoke but we really consider it incumbent upon us to understand the source of the fire. Your honor, i think this directly answer your question. I think its important why there should be a subpoena directed to us which has never, never been issued or even suggested or even been in formal document request. Its because in the accommodation process to plan there are plenty of ways for us to Work Together and discuss how to frame legislation of one they dont need to ask your opinion on legislation. Thats up with the Supreme Court said. Im curious about your insistence that they needed to work more with the Trump Organization. The president really has not been very accommodating of the subpoena request in the white house or in other agencies. In fact, flatly forbidden any compliance whatsoever in some situations. Are you telling me that the issue here is that the president wanted was just ask the Trump Organization and everything would change that would be a , different accommodation in the form of maybe not complete, thats what accommodation is, but relevant disclosures that the Trump Organization with you would do what President Trump and the white house and agencies at his direction have not done in the accommodation process . To interest, first, we do have the dispute about how it is gone so far. My friend said that we provided nothing in response to the request. Documents she asked for documents. For information about the trump hotel and he got fire alarm testing, which is not the question. They dont have a memo that that says nothing has come forward, what they need to legislate in a careful way that you said is constitutionally required. Im asking a different question, i understand, i have written down that that is one of your factual disagreements with the maloney memorandum. I am asking a different question. Is there any basis or representation you would make as an officer of the court . That the accommodation in the forms of sharing, forms of information would be different from the Trump Organization, then it has been from President Trump, from the white house, and from federal agencies. We believe the direct request to could work out differently. I dont know if it could. Just a hypothetical. I dont have authority. I would say that there are obvious narrow alternatives, and asking to answer a question this way or this way . To actually verify information. As the basis for legislation. Our position is the president of the United States is the last place they should turn, not the first. You have your hand up. Mr. Letter, a chance to respond. The judge asked a factual question of mr. Morris that i have the answer to, the most factual question. You ask about resolutions and the relationship to house rules, the way the house amends its rules during the session by resolutions, the case involving voting by proxy, the house passed a resolution for the remainder of the time, a is the way that the house changed its words. Would you like an extra minute or two . We just ask that this be reversed. Ok. Ok. Alive wednesday, passenger and freight rail with at 10ses the amtrak ceo a. M. On cspan. At 5 45 p. M. , former president campaigns for joe biden and Kamala Harris in philadelphia. At 7 p. M. , President Trump hold a Campaign Rally in gastonia, north carolina. On cspan two at 9 30 a. M. , the Senate Veterans Affairs Committee considers the v. A. Mission act which aims to provide veterans more access to health care in their communities. The Senate Returns at noon eastern and senators vote on moving forward on republican covid19 relief legislation. On cspan3 at 9 a. M. , the Brookings Institution looks at global progress on economic, social and environmental issues. Witnesses include deputy u. N. Secretary general. Bob1 30 a. M. , senator menendez, Ranking Member of the Senate Foreign Relations Committee talks about President Trumps Foreign Policy. Coming up in an
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