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tv   Supreme Court Oral Argument on Congressional Subpoenas for President...  CSPAN  May 17, 2020 6:10pm-7:49pm EDT

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it. all they needed was a little hand. we bring you the history and literary life of a different city on book tv and american history tv. to watch videos from any of the places we have been, go to tour and follow us on twitter at c-span cities tour. announcer: last summer, purdue university and lafayette indiana hosted a conference called remaking american political history. monday on american history tv, beginning at 8:00 p.m. eastern, i not a programs from the event with a panel of historians looking at u.s. politics and government. from the earliest days of the republic. watch american history tv, now and over the weekend, on c-span 3. announcer: in the first of two oral arguments, the supreme court is considering whether
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congress has the authority to subpoena third-party companies for access to president trump's financial records. this is an hour and a half. for access to president trump's financial records. this is an hour and a half. >> the honorable, the chief justice and the associate justices of the supreme court of the united states. >> the supreme court of the united states give their attention, god save the united states and this honorable court. >> the first case we will argue today is case 19715, donald trump versus masers usa. mr. strawbridge.
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>> may appease the court, the subpoenas here are unprecedented in every tenth before these cases no court upheld the use of congress subpoena power to demand the personal records of a sitting president, no kitty to committee had tried to tell of the personal papers, let alone to the purpose of considering potential legislation. there is a reason this is the first time a congressional committee has attested a gambit. it is long been understood since congress and subpoena power is applied, it is auxiliary ends subordinates, when that power is deployed against the president, and must yield any long-standing tradition or compelling showing of need, the committee can satisfy neither condition here and that should decide this case. the committees contend of the subpoenas satisfy the limits this court has applied to congressional subpoenas. but their arguments would render those limits meaningless, for example, they contend that this court should ignore the committees about improper
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purpose so long as they tack on a broad reference to potential legislation. they claim that congress can you subpoenas to uncover individual wrongdoing simply because that will always inform this is physician c of laws, they challenge the ability to question the constitutionality of the potential legislation that they rely upon. the committee is obvious overreach is to validate the subpoenas in a typical case, but the court simply does not proceed against the president as it does gives an ordinary individual, the committee has not tried to show any critical legislative need for the documents the subpoenas seek. it is no secret the relationship between the house of representatives and the president is frayed but this is not the first or the last time that one house of congress will be onto the president, the role that the court applies will not affect this president but the presidency itself. the court should deny committees and reverse the decisions below. >> mr. strawbridge, i want to
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make sure that i understand the scope of your argument, your brief begins by questioning whether the house has any power to subpoena presidential records but you seem at the end of the brief to pull back from that. you say that such subpoenas pressed the outer limits of congress authority 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 pipe under papers of the president. >> i think it's hard to imagine that the house is ever going to have the power pursuant to its legislative powers to subpoena the records of the president, quite frankly, the house has limited powers to regulate the presidency itself, i think it's very difficult to imagine a situation where it's implied power to subpoena.
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>> that's another formulation for what i was just focusing, difficult to imagine, reason to doubt, in other words interposition recognized in a particular case that the congress, the house may have such authority and in such a case it would be for the courts to decide whether is exceeded any bounds in that situation. >> we have argued at a minimum this court should apply the demonstrated need standard that is applied in other cases when there's an attempt to process the targets to president. >> so you say there is some power in the house, you think there's a high standard, and understand the house to concede that there is some limit to its authority, is something at the end of the day, this is just another case where the courts are balancing the competing interest on either side. is that the wrong way to look at it.
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>> i don't think that were asking this court to do anything different than it has to do with an ordinary case, were just noting the strains upon the powers of congress are emphasized in this case because this is the separation of powers dispute. >> thank you council, justice thomas. >> justice thomas. >> justice ginsburg. >> there are so many prior cases, there was a cooperation for example, tax returns, every president voluntarily turns over his tax returns, so it gets to be a pitched battle because president trump is the first one to refuse to do that, initially he said because in order that was ongoing, now it seems to be broader than that. but the oura of this case is
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really telling to the goose to serve the gander as well. so how do you distinguish the whitewater when president clinton personal records was subpoenaed from his accountant or even hillary clinton law firm was subpoenaed, it seems in prior bases, you say this one was one-of-a-kind but it seems in prior cases it was a much greater collision of interest. how do you distinguish all of those cases, whitewater, the jones case. >> your honor we distinguish them in a number of ways with respect to watergate and
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whitewater, obviously those are cases that are relatively recent vintage and in separation of powers dispute and all canning look back for a much longer precedent for the type of issue that needs to be examples of the separation of powers and the recent examples, there's just a handful of them that the house identifies are two recent under that stricture as a recognized in southwest general. now it's also important to note that almost all those cases, i think they involve cooperative efforts and is a recognized below consent is not the major constitutionality, none of those cases is there a challenge to the scope or to the power of the legislative committee in that case to request the documents. >> thank you council, justice thomas. >> thank you chief, counsel, and very interested, do you think
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that there are any implied powers for the congress to request or to subpoena private documents. >> i think that there might be limited powers in some cases for the house to subpoena private documents although the court has been very clear in walk-ins in a number of cases that they back any to power. >> would you define what you mean by that limited power. >> we don't call with the general notion that they have some implied power to exercise the 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 recognized in the select committee and judge livingston recognized below, they will take the view of forward-looking information and aggregated information and not attempt it
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reassemble a precise actual history. >> in the d.c. circuit opinion says that this information or subpoena should be requested under the impeachment power, what is the line between the subpoena legislative subpoena and in impeachment related subpoena. >> and kilborn, this court recognizes that their student under very different powers and wimpy impeachment is pending before anybody of the house, the ability to the subpoena is a incentive without to the court. of court intercourse court subpoenas are not limited pre-that has no bearing because the party and committees have weighed in ul reliance impeachment nor could these committees, they don't have jurisdiction over impeachment -- justice breyer. >> i would like to follow-up on
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both justice thomas and justice ginsburg question, to justice thomas question, are you saying that urban subpoenas which were done under the legislative power at the time of watergate which was fairly broad, are you saying they were unlawful that a court should not enforce them, yes, sir no. and as to justice gaines first question, i would like to know why since the watergate and other cases, watergate particularly, the court gave contested material involving the very workings of the presidential office to the prosecutor, why isn't whatever standard applies to personal papers a weaker one, not a stronger one. >> if i can answer the last question first, i think the court cannot refuse to see what others see in the threat in this case of subpoenaing decades
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worth of papers, not only of the president but of the presidents family members in his children and grandchildren as the house is done in this case, those are obvious and problem harassment and infringement of the ability to discharge his duties 24 hours a day, my congress it is never in recess in these types of subpoenas are going to be particularly troublesome and burdensome. >> you say a weaker case, whatever it is, why wouldn't 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. >> setting aside any executive concerns which i understand is not the focus of your question, the answer is because this court has repeatedly emphasized and kilborn in walk-ins that congress has any power to
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inquire into the private affairs of any individual, that is distinct from whatever interest they have a half informing themselves about the government, now the informing power does not extend to the president, he generally applies to lower executive branch officials and agencies. >> what about the first question, is the urban can committee unlawful. >> we do not argue that we do not need to address the power of impeachment because it's not an issue in this case. >> justice alito. >> counsel, are there any circumstances in which a house of congress can justify a subpoena for a sitting president's personal record on the ground that it wants to use president as a case study for possible broad regulatory legislation. >> i think it is difficult to imagine for a couple of reasons, one is even setting the aside the fact that the as required
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some showing that the information being is pertinent. i think the scope of the subpoena that is issued here create serious problems even in ordinary cases. but to answer the question, no, the presidents personal papers are not related to anything having to do with the working of government and to empower the committee to simply declare him a case study is to open the door to all sorts of oppressive request, you could have subpoenas directed seeking all jimmy carter's financial history simply because he used to be a peanut farmer and they want to case study on agriculture. you can have request for medical records, educational records, any imaginal detailed record because congress does have the general power to legislate multifarious. >> i ask you one other question, i think you said congress has limited power to regulate the conduct of a president, does
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congress have any power to regulate the conduct of the president which is an office that is crated by the constitution itself and not by congress. >> the answer to that, i think it's clear from the case, it's not very much which is why it applies to avoidance principles to avoid having to decide whether congress has attended to reach a president. the one example obviously in recent history as the nixon versus general ministry of services case, even in that case, it was a limited right regarding presidential documen documents, one could imagine some hypothetical weather limited personal paper that might be relevant to a question regarding custody to official documents but in that case let's say the constitutionality of the statue was affected and not seeking the presidents personal paper that controlled the executive branch. >> justice. >> counsel, there is a long, long history of congress seeking
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records and getting them as justice ginsburg pointed out from president. in some of those cases we have said, especially 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're talking about placing a heightened standard or clear statement in various formulations of this on an investigation that the committee is embarking upon, i understand your complaint about the financial services subpoena on the money laundering issue. but are you disputing that the stated purpose of the intelligence committee subpoena at issue investigation efforts
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by foreign entities that employs the political process. >> and related to the financial records that those are irrelevant to that purpose and that the illegitimate purpose by the investigative committee and the intelligence committee. >> taken the relevant question first, even if you accepted it, there was legitimate legislation that could be had that reach the president because what were seeking his presidential finances -- i'm sorry, not presidential finances, were asking for personal tax returns before he became president, there's a very different thing and were not asking him to produce it as 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,
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i don't understand, they are not his papers in the sense of, he's not in possession of them, these are to private entities. >> there's a number of issues there, with respect to the custodian issue, this court going back has recognize the ability of a person who scanned the presidents records of the third party to come and challenge them, and that's certainly the case here. >> those papers have to do with the privilege question and they're not personal papers, all those cases have to do with papers that belong to the office of the president, again these are personal papers. >> briefly counsel. >> they did not raise the issue, they were personal papers. the main point i would make, whatever presumption this court has applied in cases that
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involve separation of powers, and should not put any fear on the scale for congress legislative power in this case and indeed in numerous separation of powers starting with kilborn it declined to extend any presumption that congress had an illegitimate power, that was true below the d.c. circuit and in the senate select committee case in the at&t cases. >> justice kagan. >> in mourning, i think about this case, this is not the first conflict between congress and the president as many of my colleagues have pointed out and we never had to address this issue, the reason is because congress and the president have reached accommodation with each other and sometimes one is gotten more and the other has gone more, but there has always been this accommodation seeking and what it seems to me you're asking us to do for the scales between the president and
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congress and essentially to make it impossible for congress to perform oversight and to carry out its functions concerned. you're right when you said before, this isn't going to be the last such case, i wonder whether that fact is not a good reason to reject your proposed rule. >> i don't think that's the case, and for several reasons, the fact that this is the first time that congress has attempted to subpoena the scale and the scope of documents from the president another historical case involved the subpoena with the documents in the way this one does. i think it requires this court to draw a line, it's unfortunate that the house did not attempt to seek these documents from the president or engagement negotiations but ran to third-party custodians and enforced president to bring this in one thing that has the effect of limiting the defense that the president can bring but even on the just as the court has always
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applied in the scenario the subpoenas fail every hallmark of legitimate legislative investigation. >> ahead sorry. >> whatever power congress has to conduct oversight or informed itself to government, these documents are not relevant to that, that power does not extend to the president who has a separate constitution officer. >> i think some former presidents may contest the idea that the subpoenas go further than they've ever gone before, this gets me back to justice breyer is that the subpoenas are for personal records where the president is just a man, they're not for official records where the president might have executive privilege where we have to worry about the conduct of government and about the way the executive branch operates. as with justice breyer, i guess i would like to hear your views on why that ordinance would
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suggest there's a lower standard, not higher when. >> a guess because the fact that they seek documents does not mean they're not targeting the president and the oversight committee and the financial house intelligence committee have identified the president and his role as president as a motivating factor for the investigation, secondly this court has noted even in clinton b jones when it rejected immunity argument to ensure the president is not going to face undue harassment or destruction and the necessity to accommodate him, we think that's best accommodated at a minimum by applying the demonstrated need standards. >> justice cours, i would like k up there where you left off, there's no demonstrated need and no substantial legislative purpose, the house is before us and i'm sure were going to hear from them that there is substantial legislative need,
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why should we not defer to the houses views of its own legislative purposes. >> for several reasons, to begin the subpoena power is implied power in this court made clear that congress cannot use its implied power to challenge a structure government, the subpoena targeting the presidents personal documents is a challenge to the separation of powers, and morrison, the court did not apply a presumption on either side of the dispute because it was a battle between the branches as justice kalil pointed out in his opinion, there is no need for presumption on either side and what might apply an individual in the president own powers that are created by the constitution, and this court with justice marshall and ordinary litigant with the
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instruction i'm sorry to interrupt you, why is the subpoena -- supported by substantial legislative need. >> there would be three answers, congress has not identified with any specificity what valid legislation should they enact that directly reaches the president even if it has and has not identified how documents going back and upwards of ten years in some cases completely unlimited in seeking the most minute financial details not only about him by his children and his grand children every critic card swipe and every check has anything to do with some purpose that would actually be permissible legislation, i think any allowance of the case study rationale has relied upon in the services committee is the door to enlist subpoenas in any
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one party controls one house of congress opposite of the president. >> thank you counsel, justice kavanaugh. >> thank you chief justice and good morning mr. strawbridge, on their argument that the nixon demonstrated need standards should apply critical standard and explain how that would play out and practice in a case like this. >> in a case like this where congress is asserting his desire to enact general legislation, i think it's when you be very difficult, i don't hold up the possibility that they can meet the demonstrated needs, i don't complete the roll out the possibility although it think it's telling that the house devoted all of one sentence to each of the subpoenas attempting to assert very broadly that they need the demonstrated need criteria. if the own situation in which congress had put forth the
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statute and they needed some information to decide to enact the statute and it was valid and for some reason the presidents personal papers were necessary to inform congress and perhaps in that case and be them demonstrated need statute. i imagine that any of the subpoenas could come close given how far back they look and how the drug that they set up, these are the subpoenas that the court said very specific questions about whether they're attempted to expose a wrongdoing as opposed to achieve a valid legislative and. >> secondly following up on justice kagan's point about the future, on page six of the bri brief, you say it is likely that civil litigation would've been foreclosed have the committee issued them to the president and you say this case is different because the subpoenas were issued to a third-party custodian and there's an implicit assumption that i just want to make sure of the aston a
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court order that the private custodian plan to comply with the subpoenas even if the client requests them not to comply. is that correct. >> the recipients of the subpoenas have indicated that they consider to be a dispute between the president and house of representatives and absent of some court order regarding its validity they feel obligated to comply, this court needs to recognize it is not reasonable to expect in a situation the third-party custodian to risk contempt of congress whether collateral consequences and there needs to be a vehicle to allow for review, especially in this case for the president is suffering a personal injury. >> thank you counsel. >> mr. chief justice mary pease the court. >> these cases are truly historic, three congressional committees have targeted not the records of the president by his personal records striking back
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the potential to harass and undermine the president's plane. it is not much to ask that before the house delves into the president's personal life and explains in some meaningful way what laws it is considering and why it needs the president's documents. the subpoenas here don't come close. that creates two precedent for the house. anything forisfy separation of powers. this court should not decide a serious constitutional question the full house itself has not confronted. you spent a lot of time in your brief documenting that the purpose of these subpoenas was actually investigatory rather than legislative. if that is a pertinent consideration, i wonder how the court is supposed to look at it.
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should a court be probing the mental processes of the legislators? should members of house committees be subject to cross-examination on why you were really seeking these documents? justice, no, mr. chief i want to be clear. i don't think any of that would be permissible. all we are saying is that you should review the subpoena on the basis of the contemporaneous objective record that is the basis of the legislative subpoenas themselves. we have not, in our brief, turned to legislators statements. we have not said they should be able to get discovery into their mental processes. we have said that chairman cummings' memo shows the objective purpose is wrongdoing. i would point to the mismatch between the breadth and the duration of the subpoenas and their asserted purposes. with respect to all three, they don't match up with what the committees say they are doing if you look at the information they are seeking. chief justice roberts: thank
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you, counsel. justice thomas? justice thomas: mr. wall, what if, following up on the chief justice's question, what if it was clear from those statements you reviewed that their intention was actually to remove the president from office rather than the sort of pretextual reason that it is for legislative -- pretextual legislative reasons? mr. wall: i do think if you look at the statement, yes, i think they made clear that the subpoenas are not in aid of valid legislation. that is the only enumerated power to which congress is -- congress has pointed here. the house has not relied on impeachment, so you would simply say the subpoenas are invalid. to tie that into justice gorsuch's -- just as question earlier, we are not asking to go back and look at
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what they said and their mental processes. i'm saying if you look at pages 46 and 54 of the red brief and you look at what they actually said about their intended legislative proposal and why they need the documents, it is paperthin. they don't give you any specifics on what they were thinking about doing or any specifics on why they need the documents. that is not an accident. it's not the product of carelessness or flawlessness, it is because the purpose here is to expose wrongdoing and the house has never really tried to substantiate why it needs these documents in service of its legislative powers. justice thomas: thank you. chief justice roberts: justice ginsburg? justice ginsburg: one must investigate before legislation. the purpose of investigation is to frame the legislation. you don't have the legislation in mind. you want to explore what is the problem, what legislative change can reduce or eliminate the problem. so for example, the ethics in
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government act. congress may decide that it needs to beef up that legislation. it may also decide that, for financial disclosure purposes, there should be disclosure of tax returns. so, those are legislative purposes. investigate to see if you need legislation of that sort. and then to impugn congress's motive and even the police man on the beat, if he stops a car and gives a reason that the car went through a stop sign, we don't allow an investigation into what the subjective motive really was. so here you are distrusting congress more than the cop on the beat. mr. wall: justice ginsburg, i
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absolutely agree that congress can investigate in service of what legislation might be needed. our submission is much more modest that when that legislation, when the inquiry involves the president, that you need a somewhat higher standard with respect to purpose because the room for regulating the president is so much narrower than it is with respect to private parties. on the need side, because of the dangers of harassing and distracting and undermining the president, and that is a common theme that runs through the court cases, that the president has some measure of heightened production -- protection because you cannot proceed against the president as against an ordinary litigant. i am saying congress has not met that standard here. thatce ginsburg: how did work out in the paula jones case? chief justice roberts: justice breyer? justice breyer: following that up, assume, as i do, that for reasons set out in an opinion by
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judge griffiths, we are not very good, courts, at deciding disputes between two powerful political branches. so it should be rare. but if it is in front of us, why not apply the standard that is ordinarily applied to every human being in the united states in respect to, for example, grand jury subpoenas? any human being in the united states, when he gets a subpoena, can go to the judge and say, judge, this is overly burdensome. then he has a chance to show it. here, if it's the president, the court has already written in paula jones two or three paragraphs of the kinds of things that a president has that are special, special need, not to take his time, etc. but we do object to a decision of this court that says apply , taking into account the special needs of the presidency,
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just like other human beings sometimes have special needs. they might be an emergency medical worker, etc. medical mr. wall: i would, justice breyer, on two grounds. first, the court and the d.c. circuit judge rejected the analogy to grand jury subpoenas served by prosecutors. these are legislative subpoenas, not subpoenas issued by the executive branch. they are entirely different interest and trigger different concerns. these subpoenas need to be in aid of valid legislation, not as a prosecutor subpoenas to prove wrongdoing. i think both your question and what justice ginsburg was going to get at, we do think the analogy to clinton v. jones is helpful. the court rejected an absolute immunity but said the president was entitled to some special protections, and we are here saying the court should take the same approach. we are not saying the house has no powers to get the records of a sitting president. we are saying it needs to satisfy a heightened standard because if it doesn't, these
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requests will become routine, and that weapon in the standing arsenal of the houses of congress i think will be routinely deployed in a way that harms both the separation of powers and undermines the presidency. chief justice roberts: justice alito? justice alito: could you apply the standard that you think is appropriate to the subpoena from the house intelligence committee? mr. wall: sure, justice alito. there, the intelligence committee says it is investigating foreign influence in recent elections. but the subpoena goes back to 2010. it doesn't link in any way to foreign transactions, and it targets only the president. i have no idea why one would broada subpoena that in breath and duration if what one is concerned about is a more specific topic that would apply to federal candidates more generally. there is nothing in the red brief that explains the mismatch.
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on the others, the financial services committee says it's investigating money laundering after the 2008 financial crisis, but it's subpoena -- but its subpoena only goes back to the middle of 2016 and it targets the president. none of this makes sense if you are in aid of legislation. justice ginsburg referred to disclosure requirements that would apply to the president, and there is also mention of conflict of interest legislation that might apply to the president. does congress have the power to regulate the president in these ways? mr. wall: i think it's very unlikely that even the d.c. circuit did not rely on that because of the serious constitutional question it would pose if you disabled the executive from managing some part of the executive branch. i think the financial disclosures are the hardest. what i would say is, if the
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house in its brief had explained with any specificity what it might want to do to the ethics in government act and why it needs the president's documents, we could have that debate. i think the room is narrow, but i am not saying there is no room. we don't even get there because all they say is we might want to cghhr1, a bill the house passed before they even issued the subpoenas. i don't know what the house wants to do with any specificity so it's hard to say whether that is valid legislation. chief justice roberts: justice sotomayor? ,ustice sotomayer: mr. wall that's the issue, isn't it? a,il congress investigates, it doesn't have a chance to investigate -- to determine what might be valid. chance toon't have a book an actual law and say it may or may not be valid. you are asking a court in the
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guise of a heightened review standard to speculate as to legislation that's not in effect yet. but i want to go back to the subpoenas at issue. and their breadth. you note that the intelligence committee goes back 10 years. but i think it's fairly common knowledge that mr. trump, before he was president, was thinking about running for president for a very long period of time. why is it that congress cannot believe that looking at long-standing relationships and how those relationships changed or didn't change is important in knowing what undue influence might be occurring? mr. wall: justice sotomayor, it wants to do that. our submission is just a fairly modest one. it needs to do more than waive
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its hands about general purposes and say the president would be a useful case study for prospective and generally applicable laws. justice sotomayer: mr. wall, in what other setting does any investigative body have to do more than what was done here? ? i would point to the prosecutor -- mr. wall: i would point to the prosecutor -- justice sotomayer: for private records. mr. wall: this particular question has not come up in the court in any constitutional content but in nixon, the prosecutor had to show demonstrated need. the congressional committee had to show -- justice sotomayer: please, i don't want you to go to executive privilege cases. i want you to go to papers that, indisputably, have nothing to do with mr. trump while he was a private person. they are not asking for these records post being president, they are asking for these
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records pre-being president. mr. wall: i think that makes the problem worse, not better. they are targeting the personal life of the president before he was a candidate for office. that is somewhat different but deeply troubling and equally problematic constitutional concerns. chief justice roberts: justice kagan? kagan: mr. wall, i would logo -- i would like to go back to your use of clinton v. jones because i had read that case differently. of course, clinton says you are supposed to treat the president's request with respect when the president says, like, i need a deposition scheduled at a different time, or can we have written interrogatories rather than a deposition. but the fundamental claim of presidential immunity or even presidential difference was rejected in that case. what i would like to know about your argument -- i have read
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your brief and the president's own brief, and at no place do you make a case as to why these particular subpoenas plays a particular burden on the president, such that he will be prevented from carrying out his constitutional responsibilities. that's what i took clinton v. jones to be saying. that's the kind of thing a president has to come in and show, a case specific argument about burden on the president. are you making that kind of argument at all? mr. wall: yes and no. not if what you mean by burden is compiling and delivering to the documents to the house. yes if what you mean by burden is what i think clinton v. jones meant, which is harassing and undermining the president. justice kagan: not undermining the president. i mean the point of some of these suits is to harass and undermine the president, and the
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court let them go, let them proceed. it said, the only thing we are going to be concerned about is if you come into us and say, in defending those suits, you will be prevented from performing the responsibilities that we, the nation, need you to perform. are you making an argument of that kind? mr. wall: yes. in the courts below, when the house was pressed on the limits of its theory, it said probably it could not draw the blood of the president or read his teenage diaries. the powers they are seeking and the burden they will impose in the aggregate on the president will, i think, reshape and transform the balance of the separation of powers. so yes, we are saying these subpoenas and certainly these subpoenas taken in the aggregate, once the house has this weapon, well harm and undermine the presidency of the united states, not just this president, the institution of the presidency going forward. chief justice roberts: justice gorsuch? justice gorsuch: justice insuch: counsel, i believe
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earlier discussions with justice alito, you indicated congress might be able to regulate the area of financial disclosures of the president. the is one of the interests house has asserted here. what more would you require the house to do to assert that interest? what would be enough in your mind to demonstrate the heightened need you suggest is needed? mr. wall: i don't think it has to go provision by provision or anything like that, but i do think it has to describe the possible legislation with enough specificity to enable meaningful judicial review. we know the president is required to disclose different things from the ethics in government act. i am -- justice gorsuch: i am sorry to interrupt, but let me stop you there. let's say the house says, we are considering legislation on whether to require presidential candidates to disclose their tax returns for a set number of years. would that be sufficient and if not, why not?
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mr. wall: i think that might be. you would have to look at what they were going after from the various campaigns. subpoenas -- it wouldn't get near these subpoenas and targeting the president. they would be identifying with some specificity what they were thinking about doing and then it tee up the -- whaould hard constitutional question about regulating a constitutional created officer with respect to disclosures and that's, frankly, a hard question. that's the hardest of all the possible legislation they pointed to. i don't see how we can have that debate in this case because we haven't enabled meaningful judicial review. i think that should cut against the house, not the president. chief justice roberts: justice kavanaugh? justice kavanaugh: thank you, mr. chief justice, and good morning, mr. wall. i want to make sure we touch on one of your procedural arguments. you say the full house needs to
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authorize the subpoenas. the other side, the house, argues that resolution 507 did so. what is your response to that? mr. wall: my response is that 507, if you look at its terms, is both a rubber stamp and a blank check. it purports to authorize anything and everything that ever has been done or will be done by the committee. it falls short of the fairly meager resolutions in ramallah and watkins, which at least described general purposes, general legislative topics. here we are talking about the president. i know that three committee chairmen understood what they were doing. i don't think 218 members of the house have understood that they understand the gravity of the constitutional question they are teeing up. the court also requires a clear statement from congress on the separation of powers that is at issue, and we say the same thing here. that's the cleanest and
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narrowest way to dispose of this case. second kavanaugh: question. history and practice matter quite a bit in separation of power cases, as you know. justice ginsburg earlier cited precedent from watergate and whitewater, as did justice breyer. those dealt with legislative subpoenas. can you respond to those points about those precedents? mr. wall: yes. for the first 200 years of the republic, there has not been anything like this. the examples either did not involve the president -- justice kavanaugh: sorry to interrupt, but specifically what about watergate and whitewater? mr. wall: that is what i was coming to. the watergate subpoenas were for official records and they were subject to a heightened need standard. the whitewater subpoena is the closest analogy. it's modern, it was never litigated. i will grant that subpoena looks very much like this one. i don't think there is any andorical precedent for it, the concern, again, to go down
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this road and the houses of congress can weaponize the subpoena power in this new way, that will be in the standing arsenal for use against the president and any other constitutionally created officer. i don't think it takes much imagination to know where that road will lead or that we will regret having taken it. chief justice roberts: thank you, counsel. mr. letter? mr. letter: mr. chief justice and may it please the court, i would like to jump in and address some of the key points that have been made by my friends here. mr. wall, my very good friend mr. wall, said that the legislation here doesn't match up. mr. wall referred the court to the wrong pages of our brief. if you look at seven -- at pages 17 through 36, you see we discussed in great detail the purposes of the investigation and the subpoenas.
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and indeed, the d.c. circuits said in telling terms that the house has put legislation where its mouth is. we have specifically provided bills. mr. wall said the full house did not confront the subpoenas. page 241 of the appendix, i would refer you to, where the house specifically referred to these very subpoenas, these specific ones, and i don't think mr. wall really meant to say that the 218 members of the house did not know what they were doing when they passed that. that obviously is not a valid argument to be made. then we turn to something that came out in answer to justice sotomayor's question. records here,key some of the key ones we want, are ones that president trump has not even seen. we want records from third-party
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business entities, their analyses of, for instance, requests for loans. these are documents that there is no privacy interest in, no constitutional liberty >> let's talk about the standard you propose. the quote in your brief is that concern is subject on which legislation could be had. could you give me a plausible example of a subject you think is beyondour honor, the best i o
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is the court's decision in kilborn where the court there said that congress didn't seem to put forward any possible legislation there that had to do with bankruptcy proceedings that congress was looking into. >> do you think bankruptcy proceedings is a subject on the legislation that cannot be had. >> obviously bankruptcy could be in the kilborn case, this thought that no such reason had been put forward but no, congress is legislative authority is extremely broad especially because of the procreation. >> i'm not suggesting your test is not much of a test, it's not a limitation. and it doesn't seem in any way to take account of the fact that they were talking about corner branch of government, the executive branch, do you have
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any alternative to that limitless test to take account of the fact that you're dealing with the corner branch of government. >> yes, i do, by the way the test i'm referring to is a test that this court had said to a purpose but your honor indexes versus psa in a number of othert the power, that is why we are wondering around the wilderness trying to determine what standards we are to use
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>> this court has explained --s is legislative power which investigated power stems from the british parliament power is an obvious and integral part of legislation, we obviously can't have congress passing legislation and ignorance. , this court has said enfranchised tax court, just because the power is to be implied does not mean is not important that this court and our judicial review, that was not mentioned in the constitution. >> another example of the power that legislative power that is implied.
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>> i'm sorry your honor, i'm not coming up with that right now off the tip of my tongue. >> are you giving me the earliest example that you had of the legislative -- >> the congress investigated the sinclair expedition, it didn't actually issue a subpoena in that case but is equivalent of the time in president washington consulted with his closest advisors and decided to provide congress every single thing that it requested. that was just several years -- >> with the first example of congress issuing a legislative subpoena to a private party for private documents. >> i'm sorry your honor, the decision has a lengthy discussion of that, i don't have it off the top of my head the very first one but my memory is this court describes in great detail in watson's. >> thank you.
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>> justice ginsburg. >> the concern is been expressed that congress could be using the subpoena power to arrest a political rival, what is your answer, what is the principal, the limiting principle that was a legitimate legislative purpo purpose, looking toward enacting wrong to not harass the president from the opposing party. >> to answers your honor, first this court's decision, which is extremely important here, the grain was not seeking papers of the president but they are the lower court struck down to the subpoena was no good that your congressional investigation was
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no good because it was inspired by politics. this in flatly and unanimously rejected that as a reason that it could not be done and the other is clinton versus joan where this court said if there is harassment, the courts can take care of it and that's the answer to the justice department's entire brief, there is no responsible claim for everything going on is harassment and if there is this court has said, we are here. >> thank you. >> justice breyer. >> thank you. >> in respect to the authorization, the authorization the full house of the legislative subpoenas. two points, one says look at the subpoena and its authorization at the time when the subpoena
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was issued, they are perhaps the time that it was challenged first. before the later authorization in the full house was passed, to compare it with the senate select committee on presidential campaign activities via nixon, look at the authorization, the authorization there is highly detailed, highly specific in his suggest they could go after information held by any person presumably including the president. this authorization which came after the challenge, in fact writes a pretty blank check for anything without detail. now, those are arguments made by the other side, i would like to hear what do you say. >> thank you justice breyer, several responses and i'll try to be quick.
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first the court said very, very clearly, you don't just look at the authorization, there was no authorization there, second, yes resolution 507 is in part broadly worded but it is extremely specific in its third whereas clause on page 241 it refers to these very specific subpoenas, and in addition authorization is much different now in the modern congress, the modern congress has authorized committee chairs -- committees to issue subpoenas and those committees have in general delegated that authority to its chairs, the modern congress, there clearly is authorization committee chairs to issue the subpoenas and as i said, if there's any doubt at all about that, the full house ratified
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these very specific subpoenas. >> before or after -- army before or after they were issued and challenged. >> this is after they were issued and challenged, the issue is authorized by house rules which this court has said it will not examine and then the full house because there were arguments made in the full house said we authorized these exact subpoenas, we ratify the issuance of the subpoenas, it is extremely clearly worded, page 241 a of the petition appendix. >> thank you. >> justice alito. >> i was somewhat baffled by your answer to justice ginsburg about the use of congressional
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subpoenas for purposes of harassing the president, your final answer was the courts can't take care of that but that's the issue here, whether something should be done to prevent the use of the subpoenas for the harassment of a president, can you explain. >> absolutely, this court in clinton versus jones and other cases like nixon versus gsa has said we are here to protect the president if there is harassment from congress or private individuals. and here there clearly are valid legislative purposes the all found that there was -- >> i'm going to cut you off but i have very limited time. . . .
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>> these subpoenas are two private parties -- mean this is going to take up too much of his time or does that include the potential for the use of subpoenas slowly -- solely for harassment and political purposes? >> if they were slowly for harassment, they would not have to meet the standards and would have to be pertinent to a legislative purpose. the combination of all of those provides ample protection. >> you were not able to give the chief justice even one example
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of a subpoena that would not be pertinent to some conceivable legislative purpose. >> as i said, that is correct because this court has said court has said congress is power to legislate is extremely court has said congress is power to legislate is extremely -- >> there is no protection whatsoever and may be this is the correct answer, but in your view, there's no protection against the use of congressional subpoenas for preventing the harassment of a president because the only requirement is the subpoena the relevant to a legislative purpose and you can't think of a single example that would meet that test? it's things like executive
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privilege >> there could be -- >> are there any limits on using a presidents record as a case study relating to the need of legislation? of ae salary and net worth future president before election with that of a person that would be regarded as middle-class in congress that we want to study possible revisions of tax law and the provision of services to members of the middle class, so
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we are going to subpoena all information about the income expenditures and services obtained by this sitting president and his family for the purposes of considering that legislation, what that be permissible? >> it certainly could be, your honor. the financial services committee is doing an extremely rod investigation of a financial services sect or and there's before public reporting he became president, president trump's personal records, his businesses and family have been heavily involved in those activities and we are investigating numerous other banks and individuals having nothing whatsoever to do with the president. this is part of a much larger sector wide, industrywide investigation. justice sotomayor: justice, we
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have said personal records with the aim of making the president -- beseeching there's no congressional power to expose for the sake of exposure. the other side points to some hypotheticals that are troubling . ,he president transcripts passing on education reform or subpoena medical records simply to an act general health care reforms. say to ensuree , andst those hypotheticals that, a proposed subpoena might be for the sake of exposure?
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. just for the sake of exposure it is no good, the court said that exposure involving government activities can be pertinence would be the key to the valid legislative purpose and here the intelligence committee there is an obvious need to focus on the president's financial records to determine if the president is subject to foreign leverage. it's obvious that it ties in with that legislative purpose. >> i'm sorry to interrupt you, but we are limited on time. on that issue, i can see the argument, but are there already a lot of disclosure laws in place and how could this investigation help improve those or change those?
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>> i assume it is by the president so they would have to look to see what the oversight committee was looking at. do we need better laws about the conflict of interest or about a president dealing in contracts with government agencies. if the congress could limit government agencies ability to enter into or keep contracts with elected public officials. in addition, congress may be would want to provide for more exposure of assets and public of interest. >> was the breadth of the subpoena litigated below? >> yes, your honor, those claims
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were made and discussed in greater detail by the second circuit and the dc circuit, so those were fully medicated below. >> in talking to the chief justice about the limits on professional power, and antonius i'm quoting you correctly you said if it couldn't impair the constitutional functions, is that right? >> there would have to be a balance. >> but that is what we should be looking at. and then you said no such claim has been made or could be made and i also took the briefest month to be making that claim that it would carry out the constitutional functions. he told me that he was kind of making such a claim because he thought that it would undermine the president in his job and i
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guess i would like you to comment on that. >> it's fascinating because i wrote a note specifically on it. that argument wasn't made in the justice department's brief to my knowledge anywhere. my friend mentioned it here but there's no way that this could interfere because he doesn't have to do anything. it is to banks and an accounting firm and as i said before, some of the key documents the president probably has never even seen or doesn't know that they exist. we want to know th the banks analysis with the request of the lone internal link analysis but yes, the argument wasn't made in the briefs. >> if i could get you to talk about the history some of your colleagues talked about, what do you think it shows us with respect to this issue? >> it ties in with the key
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principle history can help inform what the constitution means that there's a lengthy thy history of presidents either voluntarily or not voluntarily complying with requests for information by congress and they went through presidents washington, jackson, buchanan, grand and in more modern times nixon, carter, reagan and clinton all complied with either voluntarily or not. for instance in the nixon case, nixon voluntarily tried but he didn't provide all of them. congress then baltimore pursuant to statutory authority like a subpoena from president nixon and his family's tax returns. i don't think either the justice
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department or mr. trump answered that hypothetical. history really matters here and it shows the arguments being made by president trump are astonishingly ask you to ignore or a massive amount of history. >> thank you. >> justice gorsuch. >> normally be used law-enforcement investigative tools to investigate known crimes not to pursue individuals defined crimes. that is a principle that you are well familiar with in your time in the department of justice and i'm wondering what principle you offer us here that can prevent the danger. the first one you'd have to be pertinent to the legislative purpose but i think that as we explore, that is very, very
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broad and maybe limitless to suggest on the other side at least. it can be burdensome . it's that the value that you share. >> i answered this way because again it has to be i'm going to stick to the legislative purpose because for example, congress did a massive investigation of what happened on 9/11
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. that is a live just -- legitimate investigatory purpose for sure. what takes us out of that concern? >> your honor, this would largely depend on the courts -- the only thing that takes it out of that concern is as we know, congress cannot prosecute but it clearly can look into criminal out whetherfigure out criminal laws should be changed. the most obvious example would a criminal while ago
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conviction involving white-collar crime. congress could do an investigation to determine whether to pass a criminal law statute that would make it a crime to do what was done in bridgegate. it's going to be difficult to separate the two and say what congress is doing looking into criminal activity for the purposes of determining if the fbi is doing a good job and needs more money or to amend the criminal statutes. it's going to be an extremely rare case where that is going to be invalid on congresses part. >> justice kavanaugh. >> thank you mr. chief justice and good morning mr. ledger. i want to follow-up on the line of questioning that several of my colleagues have pursued the chief justice, justice ginsburg
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and justice alito and others which i think come down to the idea of when it was authority and how to deal with that. the other side says allowing these subpoenas and safer medical records would be a grave threat in the open season they say on private record of anyone president and maybe other government officials, too and they worry about the harassing nature of the subpoena like that. you say come and he was just exploring this, so long as it is pertinent to the legislative purpose but i think everyone has explored with you that just about everything can be characterized in terms of the subpoena pertinent to the legislative purpose i don't think you can answer the chief
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justice question. the question then boils down to how can we both protect the house interest in obtaining information it needs to legislate but also protect the presidency, how can the court balance those interests, and i guess the thing i would say why not employ the demonstrably critical standard and this is something the other side would say as something that is from a different context that might serve to balance the strong competing concerns here. >> that is a very good question. i have several responses. the first one goes to the last thing you said about why not an and play the test. i don't know how the courts would do that without violating the separation of powers. i was reminded recently by the congressional leaders often they are doing investigations they don't know where the legislation
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might go with that at that point so i don't know how you would force congress to show some kind of demonstrably critical -- >> wouldn't it be the same way that it's shown in the investigation where executive privilege in that context has been the tried and true method for about 50 years. >> because then, your honor, you could demand that the executive branch show that it's reason for seeking something outweighs the executive privilege claim. but we are not dealing with executive privilege at all. these are financial business records. it's difficult to see how these could ever come within that kind of balance that would override the authority to do investigation. but one other thing i can
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suggest is nixon versus fitzgerald ripcord shares the president has absolute immunity from other kinds of claims but the court said specifically one of the reasons that is the case because we have congressional oversight. the court specifically used that to justify absolute immunity for the president in other areas and last is clinton versus jones. >> what about medical records. >> medical records i think would almost always been not pertinent to the valid legislative purpose. on the other hand, why not. 25th amendment they certainly would be. >> why wouldn't they be pertinent to say at the health-care legislation or the like in your view?
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>> i'm having difficulty thinking of a hypothetical where if the congress is examining and deciding how the president's personal medical records would be relevant to that. the most important public health statute i don't think would be affected by that at all so we come up with some of the hypotheticals where presidential health would be relevant may be changing the statutes that involve the succession of funny president becomes incapacitated i believe something like that, but in general there would be no valid reason for congress to be asking for the president's personal medical records that i can think of. >> i know you'll be delighted to learn that we have time for
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additional questioning. so i think i will begin with myself and then they will go through in order to see how far we get. one thing that hasn't come up is the fact that we are dealing here with three separate committees and we are concerned as you've recognized the potential for verizon and how does that play out, what's number of committees investigating the president's personal papers that may factor in the analysis of the issue but her announcement? >> it would seem to me that there are situations again he would have to look to clinton versus jones and when does it reach a particular stage. in fact the subpoena by the intelligence committee matches.
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specifically they didn't want to cause too much of the burden. how does that factor in and should those be counted in the balance of the district attorney
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in new york depending upon party >> how do you measure harassment in a case like that? >> if his were subpoenas from the house and senate, a massive number of them going to the white house, there certainly would the at a certain point where it would effect the ability of the white house to function. there's no doubt about that. but the subpoenas are 23 private businesses. >> justice thomas, any further clustering -- further questioning? >> yes. at some point, there is a straw that breaks the camels back. it seems as though you are saying we should look at these in isolation as opposed to in the aggregate.
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why wouldn't we look at all of look at whether at some point it debilitate the president? . if there are a massive number of subpoenas from the house and the senate through the white house can come in and say we can do >> it -- why was he limited to the house and senate? it could be every grand jury, every prosecutor, the concern we had in the clinton cases that at some .1 could be manageable but 100 could be impossible. >> your honor is right and
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therefore if they were on top of numerous others around the united states you could look at that but our subpoenas are to private business entities nothing is required if the president here to be fully complied with. not a single thing is required if the president or the white house. >> justice ginsburg, any further questioning? >> it goes to a private person for tax returns but the subpoena that i've seen goes far beyond that. it's applied at the entities and they asked for all documents related to the opening of the due diligence closing request for information by other parties etc.. that is a lot of information and some of it is pretty vague and
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if somebody had to subpoena youu for that information or your tax accountant or somebody in your business, wouldn't you at least want to know what was being turned over and what did you want to ask and might not take time and effort? my problem is there maybe burdens, third-party or not and not just political but job of the house and senate in part. but the clinton v. jones information does bother me and the fact that what i told to dave also apply to the future senator mccarthy asking franklin roosevelt or hear each room in exactly the same questions, that bothers me so what do i do? >> i fully understand the concern. none of the recipients have complained about the burden. the reason they go back a ways because you know --
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>> i'm not talking about their burden, i'm talking about the president's burden in having to monitor and decide if there are privileges, figure out what his answers are, to all those documents you are requesting which go in my opinion way, way beyond just tax returns. >> money requires looking at a whole range of financial activities. it's what they do when they are looking at financial sector and what kind of reforms should be made to the banking industry. but let me say one more time there's been no claim of privilege, there's been no claim
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that there is a burden, no claim whatsoever so those may be relevant in different cases but certainly not this one. >> justice alito. >> if one house of congress were to subpoena personal records in the hands of the party regarding a member of the other house someone in a leadership position do you think that the doctrine of the separation of powers would impose any limitation on the subpoena asked >> very interesting question. the first thing that comes to mind is whether that violates the cause no member of the house or senate can be questioned anywhere else and so if there is a request for records if it is tied in in any way to the
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legislative functions of the senator or house member, that would be invalid. >> they don't have anything to do with the performance of the legislative function and they are regarding the personal activities of this individual purely personal activities and we can even say certain things were done before the president was elected to congress. >> it's part of your hypothetical debate but never let's be pertinent to the site of purpose. >> the committee wants to use somebody in the leadership position as a case study for possible legislation. >> if it meant a hypothetical, i think that would be valid. i'm not aware that it's ever
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happened in the history of the house or senate. i don't know of any that would be like that. >> anything further? >> that is the whole point, isn't it? justice alito is raising a hypothetical because he says should and then we look at history and its only moderate history where the committees have asked for personal papers, so he presumably would discount that and he would say shouldn't we respect the separation of powers that what's personal to the president is similarly personal to a congressperson. >> i have to disagree strongly with one thing you said. we have history seeking personal papers jackson, buchanan, grant
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etc.. there's been lots of personal papers by congress for many, many decades. this isn't just a modern practice at all. >> i wonder if i could ask you to comment on the one hand the oversight and intelligence subpoena and on the other hand, the financial services subpoena. the first two address the president directly to the financial disclosures for presidents make, conflict of interest, foreign involvement of presidential campaigns. but the banking committee was taking a broad scope and when the congress doesn't seem to be looking to the president but a much broader topic, might there
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not be a heightened need for congress to say why it is that they are focusing on that for this? >> i think that still would've madthat still left meraise mete. there are 11. only two of these entities have to do with the president. this is a much broader investigation. and last, there is massive public reporting about the subject of the subpoena and banking practices into deutsche
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bank and capital one have both been sanctioned many millions of dollars. it's pertinent to the legislative purpose with almost no limiting principle at all at least i think that is what some of the questions have explored.
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the court articulates to lower the standard that something like that .-full-stop happening that is the concern i've heard identified or that i took away from that hypothetical so i want to give you a chance to respond to that hypothetical and why it wouldn't spy role. >> i appreciate that chance. two responses. remember first exactly what the courcourt did in clinton versus jones and one of the briefs, but the court said we are going to let this happen to. it might be there to get into fo things like the privilege information or information involving constitutional liberty interest none of those would
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apply presumably under what you articulated a this court decision but obviously the courts are going to monitor this, so it's contrary to what has happened in the past, our lengthy history if there are situations would you like to take a minute to wrap
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up? >> as i was saying before, remember some of the key records here are ones the president has never seen and never had anything to do with. onasked the court to focus the specific subpoenas in this case because we are not dealing with what if here. a are not dealing with situation where a lot of the justice department argument focuses on -- fortunately, this court exists to fix those kinds of situations should they arise. >> thank you. you have two minutes for rebuttal. >> thank you, mr. chief justice. my friend from the other side struggled with every hypothetical he was given about his ability to set some sort of
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limiting principle or mitigating document about the president that would not be obtainable under his theory. that's very telling because there are no limits to their theories. let's consider the example regarding federal records. there's no reason why the president and his family could not be declared useful case studies and congress could not send out a subpoena for the records. has the naturally ability to regulate food safety, but that doesn't mean congress can subpoena medical records or even the president's dna. my friend refused to rule out that hypothetical category and i think it is telling he cannot provide any meaningful limit today. that is consonant with the fact they failed to consider what their actual legislative need is. this is an implied power, not a free ranging warrant to investigate wrongdoing going back 10 years.
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a laundry list of legislative proposals -- almost all of which were passed before these legislative issues and almost no place does he try to tie any particular legislative or thel to the president vast documents they seek here. this is not an attempt to therve the -- to conserve separation of powers, its attempt to eviscerate that. the watergate committee did serve congressional subpoenas under legislative power and applying the height and need, the d.c. circuit judge invalidated it just as this court invalidated the attempt to hold in contempt somebody in kilborn when it violated the separation of powers. -- every that that powerse separation of has been presented -- if this court accepts the path the house is attempting to lay. the powers has been decisions below shoulde
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reversed. >> thank you, counsel. the case is submitted. >> you can watch these cases again on our website, the court is expected to rule on both of these cases by the end of the term in june. >> tonight at 9 p.m. eastern, the founder of tj -- td ameritrade talks about his book. watch afterwards on "book tv" on c-span2. on friday night, after the house approved a $3 trillion coronavirus economic aid package, the fifth such bill passed by that buddy, majority leader steny hoyer and minority whip steve scalise previewed the upcoming legislative schedule. the majority leader announced the house will not be in legislative session this week. here is that floor exchange. objection, so ordered.


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