chief justice roberts: we will hear argument next in the case of donald trump versus cyrus vance. >> no county district attorney in the nations history has issued criminal process against the sitting president of the united states and for good reason. the constitution does not allow it. tim bray presidential immunity is required by article two and accordingly the supremacy clause that --

--er state under state law as to the president. the second circuit is wrong -- [indiscernible] are elected to office and are accountable to the local constituencies. the decision would allow any da to harass and interfere the sitting president and subject the president to local prejudice that could influence decisions in the state grand jury's can be utilized to issue compulsory process -- and i'm targeting the president. this is not mere speculation. would have taken place in this case. would have taken place in this case. -- an additional take the tax

returns. how reviewer -- revealing, the exact same language with coveringtly be counted the exact same documents and sent to the exact same recipients yet purportedly for two different reasons. nixon,rticle two, under the subpoena we challenge today cannot survive as the second concluded concluded and the da represents, the president's -- [indiscernible] this he cannot do. thank you. counsel,tice roberts: you do not argue that the grand jury cannot -- mr. sekulow: we did not seek to ice an injunction involving president agnew. we have targeted the utilization of the immunity here to the

subpoena. chief justice roberts: in other words, it is ok for the grand jury to investigate except it cannot use the traditional and most effective device that they have typically used, which is the subpoena? mr. sekulow: not a subpoena targeting the president and under his article two responsibilities, that is our view, it would be inappropriate. chief justice roberts: i do not theory in terms of distraction and all of that goes much farther than resisting the subpoena. i do not know why you theory ins of not resist the investigation or why your theory would not lead to that. is sekulow: our position criminal process against the president, and that is what we are talking about, criminal process targeting the president is a violation of the constitution. we did not seek to enforce an injection against the grand jury

investigating the situation with the president. chief justice roberts: you focus on the distraction to the president, but i do not know why , in clinton versus jones, not persuaded that this distraction in that case meant that discovery could not proceed. there are different things that distract different people but i would have thought the discovery in a case like lynn versus joins -- clinton versus jones, as you argued the proceedings here. mr. sekulow: clinton was in federal court and this is state court. that was a civil case and this is a criminal case, and as this court noted on page 691, if in fact that case had originated in the state court, it would raise different issues than separation of powers concerns over local prejudice, and this court said

that any direct control by a state court over the president may implicate concerns that are different under separation of that -- thomas: just a couple of questions. i am interested in whether or not you can point us to some during theguage ratification process that provides for this immunity. couple,low: there is a there was colloquy between adams and one senator where they talked about process against the president and they took the position that any process would be constitutionally problematic. jefferson of course wrote in the letters that he had regarding the subpoenas that allowing local magistrates to banter about a sitting president from north to south and east to west would interfere his responsibilities.

just stated, the burdensome nature of this is categorical. you cannot just look at one subpoena. for the potential of 23 district attorney's issuing these. discussed, and that is why there is process to deal with this. justice thomas: does it make a difference when it goes to a third party? mr. sekulow: not here, the respondents at either forfeited or waived it and conceded that they are seeking the documents print these are the president's documents. he is the real party and he has the burden including review with counsel over any existing privileges and what these documents might entail. justice ginsburg: we have said in the grand jury context that

the public has a right to every man's evidence. is it your position that that is safe for the president? every man's evidence, and there ,s no privilege involved here these are nonconfidential papers , so is the grand jury right every man's evidence, except the president? that is one question. and then i want you to answer jones heldy, paula that the president was not immune from civil suits for conduct occurring before he took office. courtes had sued in state rather than federal court, would clinton have had absolute

immunity? mr. sekulow: two the second question first, this court in clinton said that if the case were brought in state court it would raise different issues of concerns over ogle prejudice. it was different than the separation of powers issue. it was involving article two, so the court said that on pages 691 and footnote 13. with regard to that, this court has long recognized that the president is not to be treated as an ordinary citizen. he has responsibilities and is a branch of government. he is the only individual that is a branch of government in the federal system. that theion is constitution itself both in structure and text supports the position that the president would be temporarily immune from this activity from a state proceeding while he is the president. justice ginsburg: everyman's

evidence excludes the president. it is not that at excludes the president, the president is not to be treated as an ordinary citizen and this is a temporary immunity, while the president is in office. justice breyer: of course in clinton there might be a million, i do not know, tens of thousands who might bring lawsuits, perhaps all of them were unfounded, but they could file the paper. sufficient just to apply ordinary standards? i gather ordinarily any person who gets a subpoena can come in and say it is in some and what counts as burdensome for a doctor who is in the middle of an operation might be different .rom a person who is a salesman

similarly, for the present all the factors you raise could come in under the title unduly burdensome. let thejust go back, president say i will show you precisely how this is burdensome and i will spend time and effort working all of these things out, figuring out what they mean. if he shows undue burden and lack of connection, he wins, and otherwise not paid that is true of every person. why not the same here? mr. sekulow: the hypothetical you just gave think proves the point, by the time you prepare and review, analyze the requests, just in these three cases that we have today, it shows the burdensome nature. to require the president of the united states, as you raised in your opinion in clinton, that met just by us

being here. to require him to respond to each state district attorney that would like to -- justice met just by us being here. breyer: he would hire you or a lawyer to list with the burdens are. then he would not be burdened because you would go and say what the burdens are. if you are right, you win that case. they are saying the other side, there are no burdens here. you say there are. them figure and let out what they are. mr. sekulow: i think that establishes the problem, a case-by-case analysis. in this case, found on page 118 of the petition appendix, there is a list of documents print you have to meet with the president. you could imagine, that -- imagine he would hire me, that i would call i note that you're handling a pandemic

right now, but i need to spend a couple of hours with the going over a subpoena of documents that are wanted by this district attorney. justice alito: are there some circumstances in which you have constitution rights that would permit -- .o think of this situation suppose that the prosecutor has good reason to believe that the --ords not available from any other source, and a third party committed a crime, and supports that waiting until the end of the president's term would make prosecution impossible or difficult? would you say that at least in that circumstance it would be permissible for the grand jury subpoena to be enforced? mr. sekulow: in the state court, still there.e

in u.s. versus nixon, that was the case where the president was a witness and the documents were asked for and this court said it should be handed over. but it was very clear that the , and the was a witness independent counsel there specifically stated to this court that the president was not a target. if we had a peer witness peer witness standpoint, while it is a different case, the same principles -- [indiscernible] if the prosecutor was willing to say the president was not a target, whatever that means? mr. sekulow: it would raise different issues for the president to consider. constitutionally, i think i have to be very clear.

under the supremacy clause, as to a state court proceeding, we think even as a witness it raises serious issues, obviously a very different case than this. justice sotomayor: it seems that you are asking for a broadness of immunity that justice thomas pointed out is nowhere in the constitution. the constitution protects against presidential interference with the state criminal proceedings. it does not allow the president to pardon offenders for state prosecutions, state criminal convictions. i find it odd that you want us to rule there is an absolute immunity from investigative

powers, the height of police a civil damages case by a private to get, which we did in latin, prosecutors withethical obligations respect to grand jury investigations and they have to keep those investigation secret. they can be prosecuted if they leak information. don't we usually presume that state courts and state prosecutors act as they should in good faith? finish, and let me doesn't the president always ife the opportunity to show a subpoena was issued in bad faith? he was given that opportunity affidavit i understand was filed under seal setting forth the reasonable

.rounds for the investigation i am not sure why he is entitled to more immunity for private acts then he should be for public acts. mr. sekulow: he is the president of the united states, a branch of the federal government. government. justice sotomayor: we only give -- , if they don't, if judges sexually harass someone, we say that is not within their functions and they can be sued. if congressman do the same thing, they can be sued. comes, you arell asking for a broader immunity immunityne else

than anyone else gets. mr. sekulow: i would point out that under new york state law witnesses before a grand jury are not sworn to secrecy. they can state that they testified and i would like to point out that there are hundreds of members of the united states congress and an hundred members of the senate and there is one president. kagan: you've said that a number of times, and he made the point, that the president cannot be treated just like an ordinary citizen. it is also true and indeed a fundamental precept of the constitutional order that a president is not above the law. from our first days, chief justice marshall told thomas jefferson that he could be subpoenaed and required to and required to produce papers, and so i guess going back -- the president is like an

ordinary citizen and that he is subject to law is to save the president can make these usual objections that a recipient can make about -- why isn't that the right way to do it? mr. sekulow: i think the case here is the perfect example. is the perfect example. here the district attorney copied verbatim -- for counsel, the president hiring counsel for each time he could be subpoenaed as a witness , who in this case as a target would raise a serious impact on the article to functions, so we think a categorical approach and we think it is submissive for

care state process adds to targeting the documents in a criminal proceeding. it should be prohibited. justice gorsuch? -- justice gorsuch: i would like to return to the question about how you would distinguish, yes this took place in federal court but as been civil case, and pointed out, it could have been multiple versions of that in multiple different districts across the country. what is different about that? how do we avoid the conclusion that the president wasn't subject to some special immunity but here is? i think the nation of the case station line --