[00:00:02] Speaker 00:
Case number 19-5142, Donald J. Trump and Al, Appellants v. Mazars USA, LLP, and Committees on Oversight and Reform of the United States House of Representatives.

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Mr. Connivoy for the appellants.

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Mr. Leder for the appellee.

[00:00:24] Speaker 04:
Good morning.

[00:00:25] Speaker 04:
Good morning.

[00:00:25] Speaker 04:
May it please the Court, with the Court permission, I reserve eight minutes for revoke.

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As both the Supreme Court and this Court have held, before turning to the serious constitutional question this case presents, the Court must first answer whether the Committee has statutory jurisdiction.

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In this case, and for the reasons set forth in this Court's opinion totally, not only should the inquiry begin there, it should end there.

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For two principal reasons,

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The statutory language in the House Rules does not afford to committee the jurisdiction to personally subpoena the President for his private financial records.

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Foremost, in many cases, and as the Office of Legal Counsel has squarely held, statutes and here, House Rules, must name the President.

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There must be a clear statement before their authority may reach that office.

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Second, as in Tobin and in the Supreme Court's Rumley decision,

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when there are constitutional doubts, the committee's authority should be written narrowly, not to trigger those serious questions.

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Do you dispute that the House itself has this power?

[00:01:37] Speaker 04:
It has the statutory power.

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It can create whatever statutory power it wants.

[00:01:41] Speaker 01:
No, but it has the power to issue a subpoena, like this, the House itself.

[00:01:46] Speaker 04:
Not the constitutional power, for the reason we said.

[00:01:48] Speaker 01:
The House itself.

[00:01:49] Speaker 01:
Because your argument sounded to me all about

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the delegation to the committee not being explicit, I saw no argument in your brief that the House itself did not have this power.

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You just said the House had to be explicit that it was giving what it had to the committee.

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I'm sorry if I'm not being clear.

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As a statutory matter, the House can pass rules that reach the President.

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They could go to the House.

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Including subpoena power.

[00:02:13] Speaker 04:
They could.

[00:02:13] Speaker 04:
Then there would still be what is the rest of our briefing, which is the vast majority of the briefing, which is whether that subpoena is constitutionally proper.

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That question.

[00:02:22] Speaker 01:
No, yeah.

[00:02:23] Speaker 01:
I'm sorry.

[00:02:23] Speaker 01:
I wasn't clear.

[00:02:24] Speaker 01:
So just on this, I'm just on your first non-constitutional argument, although constitutionally infused, as any clear statement requirement is.

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But put aside, assume, I'm taking as given your issues about within the legislative wheelhouse.

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But just to understand what, I'm trying to understand what your clear statement argument is.

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Yes, the House itself could issue the subpoena, and then we would just be over on the rest of our brief with those arguments.

[00:02:54] Speaker 04:
That is correct.

[00:02:55] Speaker 01:
But the House has it.

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It's just whether they gave it to a committee.

[00:02:59] Speaker 04:
Correct.

[00:02:59] Speaker 04:
So no different than in the Franklin case.

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Congress could have passed this out.

[00:03:03] Speaker 05:
Well, it's quite different.

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Wouldn't you have insisted that the House also speak clearly?

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In other words, if the House issues, under your theory, whether the committee issues the subpoena pursuant to House rules or whether the House issues itself, issues the subpoena itself, your position, as I understand it, is that

[00:03:23] Speaker 05:
Whichever body does it, it has to identify the president, right?

[00:03:28] Speaker 04:
Correct, and that is a question of clarity, not a question of power, for statutory purposes.

[00:03:32] Speaker 05:
So can we unpack that for just a minute?

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So there's two elements to that argument, as I understand it.

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Number one is your clear statement rule.

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Number two is constitutional avoidance, right?

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Correct.

[00:03:44] Speaker 05:
Okay.

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So on clear statement, you cite, you rely on

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You rely on the Supreme Court's decision in Franklin and our decision in Armstrong, right?

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Those are your two major cases.

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Those are the two biggest ones.

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Yeah.

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Those seem different to me than this case, because in Franklin, the question was whether the president

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is an officer in the APA, and the court said, we're not going to subject the President of the United States to arbitrary and capricious review unless the Congress expressly says that's what it means, right?

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And in Armstrong, we said that unless Congress speaks clearly, we're not going to imply a private right of action against the President of the United States, right?

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Right?

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Because it would, quote, significantly alter the balance between Congress and the President.

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This seems very different.

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This is a subpoena that relates to laws requiring financial disclosure.

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There's no significant altering of the relation between the President and the Congress.

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There's no subjecting the President to arbitrary and capricious review, as in Franklin.

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This is just

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financial disclosure.

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are about the general authority of the committee and whether that committee's general authority, which is the office of the president.

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Yeah, but you can't challenge, you're not challenging the authority of the committee, you're challenging this subpoena.

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And this subpoena seeks documents regarding the president's financial disclosures.

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I would respect them to both.

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Isn't that right?

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I'm respecting, I'm saying just as in tolling,

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No one disputed that committee power.

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Well, Tobin's a constitutional avoidance case.

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Let's stick with your clear statement.

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Absolutely.

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It's the same answer.

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So what do you think about my suggestion that the cases you rely on are quite different?

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So I respectfully disagree that they're quite different.

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Right.

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But why?

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because they're both bottomed on the same legal principle, which is reflected in the Office of Legal Counsel memorandum, that I don't think anyone disputes, which is that any statute or house rule that seeks to get to the president directly must use a clear statement.

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But even in the, are you talking about Judge Silberman, now Judge Silberman's letter?

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Not just that, from 1985, the Dellinger OLC, if anyone cites the Rehnquist letter, says the same thing.

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And you're focusing on the subpoena,

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But isn't that the subject of the... You don't have standing to challenge the House rules.

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You can only challenge the subpoena that affects your client.

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I respectfully disagree.

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I have the authority under Tobin to challenge the committee's statutory jurisdiction, and not only do I have the right to challenge it, the Court has a duty under one Liam Tobin to reach that issue first.

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I agree with that, but isn't that question whether this subpoena is authorized by the rules?

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Isn't that the question?

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And this subpoena is directed at the President, and the House rules do not authorize this committee to subpoena the President.

[00:07:07] Speaker 01:
It's not directed at the President.

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That may be a very different question.

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It is directed at a third party who happens to have documents that were given to them by the President.

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I mean, I assume that we could certainly reserve whether something that directly tells the president to go through your files and bring us things would be different than something that operates on a third party who has something the president gave.

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I respectfully disagree for two reasons, one legal, one practical.

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On the legal side, footnote 14 of Eastland answers this question.

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The president's allowed to stand in the shoes of the third party custodian to protect his rights.

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Practically, if that were wrong.

[00:07:42] Speaker 01:
Oh, no, that would be his rights in the document.

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That's still not the same thing as a, just like a deposition

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of the president would be different than a deposition of a third party who would be telling them what the president said just because you're not interfering with the day-to-day activities of the president.

[00:08:01] Speaker 04:
With respect, I don't think a subpoena to the president's lawyer would be considered a third party subpoena.

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I don't think a subpoena to the president's doctor would be considered a third party subpoena.

[00:08:10] Speaker 01:
Sure, but there you have it.

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Are you asserting a

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Privilege recognized by state law or common law in these documents?

[00:08:16] Speaker 04:
New York law creates the privileges stated in our complaint.

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What does?

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New York law provides a privilege between accountants and their clients, and we've relied on that in our complaint.

[00:08:27] Speaker 05:
So Mr. Constable, let me just pursue this clear statement for a minute.

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Let's assume you're right for a minute that we do have to apply a clear statement rule.

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The committee, this committee has jurisdiction over the Ethics in Government Act, right?

[00:08:42] Speaker 05:
It does.

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Okay.

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And the Ethics in Government Act expressly covers the President of the United States, right?

[00:08:47] Speaker 04:
It does.

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So why isn't that the clear statement right there?

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The clear statement must be in the rule itself.

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That is how Rumley states the question.

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So in your view, what's missing is the Ethics in Government Act is not expressly listed in

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the House rule.

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Is that it?

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With candor, I think that would get them closer.

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I would resist that as well.

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I think this is a very easy thing for the House to do, but a very important thing, which is to name the president.

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And Judge Taylor, if I could just expand on that for one moment.

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Sure.

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The power here is not just the power to subpoena documents.

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This same rule that the committee relies on gives them the power to subpoena testimony.

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So this court would have to say,

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that the House of Representatives as a body, it is clear, has delegated to one person, the Chairman of the Oversight Committee, to subpoena the President of the United States.

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Mr. Costas, the only question before us is this subpoena.

[00:09:44] Speaker 05:
That's it.

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That's the only question before the Court right now.

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I agree.

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I hear what you're saying, but I just don't understand why

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Let's assume you're right that the House rule is excessively broad in other respects.

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Try it this way.

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Suppose, for example, it expressly permits the House, the Oversight Committee, to subpoena the President.

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Would you be making the same argument?

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If the House rules specifically cited the President, we would not be making this particular.

[00:10:21] Speaker 05:
Okay, that's my point.

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So that's all we're talking about is the only question is.

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the orality or the authorization of the committee to issue this subpoena.

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It has nothing to do with testimony.

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It has nothing to do with any other aspects of the House rules, right?

[00:10:37] Speaker 04:
Well, in the particular, of course, it only deals with the subpoena, but the legal question at issue here applies to a litany of factual scenarios that I don't think can be avoided in answering that question.

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So your view, then, is that

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Any action against any targeting of the President of the United States requires a clear statement without regard to its impact on the President.

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That's your position.

[00:11:02] Speaker 04:
Correct.

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That is not only... So what do you do with the language I cited in both Franklin and Armstrong?

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I think Franklin Armstrong raised concerns that prove the more narrow point, to be sure.

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And other statutes may as well.

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But take the statute at issue in Lindsay, in which you wrote a separate opinion just a little.

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There was five USC 535B, which required people, any executive official, to report wrongdoing to the attorney general.

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And the court, everyone agreed, as the attorney general argued,

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through able counsel in that case, that you had to name the president to include him in that statute.

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It didn't matter.

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This was the Rehnquist opinion from 1968, cited by Bellinger in 1995, applied by this court, and applied by the Supreme Court.

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In every case, at every time, you have to name the president.

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And I think this is a good rule.

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It not only keeps the Congress, it makes its intentions clear, which is the basis for these kinds of rules.

[00:12:03] Speaker 04:
We want to know for sure

[00:12:05] Speaker 02:
that the House of Representatives wants to provoke a constitutional clash, and it keeps the court... Mr. Constable, if you could just move from the clear statement rule to the constitutional avoidance argument that you make.

[00:12:17] Speaker 02:
So as I understand it here, you're not asserting any kind of executive privilege or immunity, so maybe you can say a little bit more about what specifically is the constitutional interest of the President in this case.

[00:12:30] Speaker 04:
I think there are three.

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I'll take the most obvious, probably the most controversial,

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whether there's a legitimate legislative purpose is itself a constitutional question.

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If the court holds, which is the fundamental inquiry that starts with Kill morning, goes through McRain and all these cases, that in fact the subpoena lacks legitimate legislative purpose, that means the subpoena exceeds Congress's constitutional power.

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So every subsidiary question we've raised in this case that goes to whether there's legitimate legislative purpose itself creates constitutional doubt.

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I think the biggest among those

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in this case, is whether there could be valid legislation on conflicts of interest and financial disclosures.

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And those questions are hard, they are serious, they raise important separation of powers questions, and they trigger the... And what are those separation of powers interests and questions that are raised here?

[00:13:22] Speaker 02:
And they're unique to the office of the president?

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Is that correct?

[00:13:25] Speaker 04:
They are, yes.

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So the president is different.

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and all other constitutional officers.

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The office is created by the Constitution, just like the justice of the Supreme Court.

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As the Chief Justice, as we noted, reiterated in a letter to Congress, it is a special office.

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Congress's ability to control, to regulate, as Chief Justice Berger put it in Fitzgerald, to try to conquer,

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always raise constitutional questions.

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Take, for example, the Presidential Records Act, which is much less intrusive than what we're talking about here.

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You cited Berger's concurrence, but that was his view.

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I mean, the majority view about this issue is set forth in Nixon, too, which says that a statute disrupts a proper balance between the coordinate branches if it prevents the executive branch.

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from accomplishing its constitutional functions.

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Not just interferes, but prevents.

[00:14:21] Speaker 05:
That's the majority of the Supreme Court.

[00:14:23] Speaker 04:
I mostly agree.

[00:14:24] Speaker 04:
I think it said it could prevent.

[00:14:25] Speaker 04:
Well, you know, it had the prospect of, you know, the high water level.

[00:14:29] Speaker 05:
OK, well, how could, just to follow up on Judge Ryan's question, how could financial disclosure requirements prevent the government, the president, from fulfilling his constitutional rights?

[00:14:38] Speaker 04:
Imagine Congress passing a statute that said the president has to submit 100,000 pages of financial disclosures and meet with Congress once a month to discuss them.

[00:14:45] Speaker 05:
Well, but that's not the statute to consider.

[00:14:47] Speaker 05:
That's interesting, but those aren't the statutes Congress is considering.

[00:14:53] Speaker 01:
Well, the only one that has to do any work here is Mazar's.

[00:14:57] Speaker 01:
The only one whose time, right, is septifying here is Mazar's.

[00:15:01] Speaker 04:
In complying with the subpoena.

[00:15:02] Speaker 04:
Correct.

[00:15:02] Speaker 04:
But the question I was addressing to Judge Rao is, Congress has to have a legislative purpose that's constitutional.

[00:15:08] Speaker 01:
No, no.

[00:15:08] Speaker 01:
That's to Judge Tagel's question as to how Mazar's turning over documents already in its possession impedes the president's execution of his own duties.

[00:15:22] Speaker 04:
I think I was addressing both questions at the same time.

[00:15:25] Speaker 04:
I think those are two different questions.

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Question one is, how does responding to subpoenas intrude on the president?

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And as I was saying, the presidency is special.

[00:15:36] Speaker 01:
But you responded with a hypothetical instead of how this subpoena would prevent the president from exercising his powers, how it would impede upon his

[00:15:47] Speaker 04:
time and energies.

[00:15:48] Speaker 04:
Oh, I mean, just like in Nixon versus Fitzgerald, the duty to have to deal with this is not a beginning and the end.

[00:15:55] Speaker 04:
There's going to be all sorts of questions that arise with compliance with the subpoena.

[00:16:00] Speaker 05:
This is subpoena against the president.

[00:16:07] Speaker 05:
This is a Clinton v. Jones case, not a Fitzgerald's case.

[00:16:12] Speaker 05:
I mean, the Supreme Court dealt with that issue in Clinton.

[00:16:16] Speaker 04:
I think it straddles the line to be honest, Judge Tatel.

[00:16:19] Speaker 04:
I mean, these records are being sought because if Congress is asserting a right because they have oversight of the President, this is not private litigation.

[00:16:28] Speaker 04:
This is a subpoena to enforce Congress's authority.

[00:16:30] Speaker 05:
That's a good point.

[00:16:31] Speaker 04:
And secondly, your point that you made, I thought, in the Lindsay case is exactly on point, which is when it comes to the rest.

[00:16:39] Speaker 05:
I thought it was too, but that's a dissent.

[00:16:42] Speaker 04:
It was a dissent.

[00:16:43] Speaker 04:
But I think the point we're making, I don't think,

[00:16:46] Speaker 04:
I think it applies universally and didn't turn on the facts, necessarily limited the facts of that case, which is when it comes to the president, the person and the office are one and the same, and it is impossible to distinguish between the two.

[00:16:58] Speaker 04:
So that's the burden.

[00:16:59] Speaker 04:
I'm sorry, you go ahead.

[00:17:01] Speaker 02:
Well, I mean, really just, I mean, many of the arguments that are raised here on behalf of President Trump relate to the unique constitutional status of the presidency and

[00:17:09] Speaker 02:
the infringement on his authority.

[00:17:12] Speaker 02:
Why is the Department of Justice not here participating to protect the office of the president?

[00:17:19] Speaker 02:
That's the primary basis of your argument.

[00:17:23] Speaker 04:
So when they subpoenaed the president's personal accountants, I think naturally the president, a personal lawyer, would represent the president.

[00:17:30] Speaker 04:
This happens in these kinds of

[00:17:32] Speaker 04:
but it's all the time that happened in the Lindsay case.

[00:17:36] Speaker 02:
In the Lindsay case, the Department of Justice also participated in addition to the private attorneys.

[00:17:40] Speaker 02:
And so if the arguments here are really about the Office of the Presidency, why is the Department of Justice not participating?

[00:17:47] Speaker 01:
We showed up in Clinton v. Jones as well to represent the Office of the Presidency.

[00:17:51] Speaker 04:
I can only speak for my participation and not others, Your Honor.

[00:17:56] Speaker 05:
Your companion argument here is not just that this interferes, but this adds eight constitutional requirements to the presidency, right?

[00:18:10] Speaker 05:
I'm sorry, no.

[00:18:12] Speaker 05:
Your argument also is that the legislation that Congress is considering in the Ethics and Government Act unconstitutionally adds to the qualifications to be president.

[00:18:21] Speaker 05:
Correct.

[00:18:21] Speaker 05:
You want to say something about that?

[00:18:23] Speaker 04:
Yes.

[00:18:23] Speaker 04:
So in two ways.

[00:18:24] Speaker 04:
I think the easier one is the conflict of interest rules.

[00:18:26] Speaker 04:
There's a reason why none of the conflict of interest statutes apply to the president.

[00:18:30] Speaker 04:
The reasoning for that is set forth in the Sovereign Amendment Bill.

[00:18:34] Speaker 04:
So the idea that Congress can make the president divest or hold money in a certain way or refrain from having private businesses or anything like that would be an illegal unconstitutional fault.

[00:18:45] Speaker 05:
I got that.

[00:18:46] Speaker 05:
But what about financial disclosure?

[00:18:47] Speaker 04:
I think so too.

[00:18:48] Speaker 04:
Why?

[00:18:49] Speaker 04:
Because I think for the reason articulated in the Chief Justice's letter to Congress,

[00:18:54] Speaker 04:
there is a good, I think, strong argument that there is a hard line in pen drawn around the presidency, just circled drawn around the presidency, just like the Supreme Court justices.

[00:19:04] Speaker 05:
Right.

[00:19:05] Speaker 05:
I understand the general language, but before and after the ethics and government act, anybody who is constitutionally eligible to run for president, over 35, naturally born citizen, hasn't already served two terms.

[00:19:23] Speaker 05:
Anybody who meets those can run for president before and after.

[00:19:27] Speaker 05:
It's not like US term limits, where the states try to limit the terms of a member of Congress.

[00:19:37] Speaker 05:
I don't see why this limits anybody's ability to run for president.

[00:19:43] Speaker 04:
Does it?

[00:19:45] Speaker 04:
No differently then.

[00:19:47] Speaker 05:
The conflict of interest laws, as Judge Sullivan said in his letter, under those laws, those could prevent a president from actually from either running because he has a conflict of interest or, as he also said,

[00:20:07] Speaker 05:
would prevent him from exercising the power of the presidency.

[00:20:11] Speaker 05:
I'm just asking about the disclosure.

[00:20:15] Speaker 05:
And that leads me to a second question.

[00:20:17] Speaker 05:
So you talk a lot about conflict of interest and other aspects of this, but suppose we just look at the fourth justification in Cummings' letter, just the fourth one, that's all, which is whether the President of the United States has accurately reported his finances to the Office of Government Affairs, just that.

[00:20:39] Speaker 05:
So if I think that that is, setting aside, I'm moving beyond the question of the House rules and whether that authorizes this.

[00:20:51] Speaker 05:
If I think there's no constitutional problem there, Anna Kelly.

[00:20:57] Speaker 05:
Can we enforce this opinion?

[00:20:59] Speaker 05:
Do we have to deal with all four aspects of Cummings' letter, or is focusing on one enough?

[00:21:05] Speaker 04:
I think if there is a, well, let me give you two answers.

[00:21:08] Speaker 04:
I think there is an argument to be made that just one is enough, and we dispute that that one is legitimate.

[00:21:14] Speaker 04:
I got you.

[00:21:14] Speaker 04:
And I'd like to address that.

[00:21:16] Speaker 04:
I understand.

[00:21:17] Speaker 04:
But I do think there is still this question of what the real object, which is McCrane's language,

[00:21:21] Speaker 04:
I think if you pick one out, you'd have to say it's actually the reason they're doing it, based on the public record, and that it's a legitimate one.

[00:21:30] Speaker 05:
I completely agree with that.

[00:21:31] Speaker 05:
So explain to me, if I'm looking at just this one, that is the adequacy of the financial disclosure, why that's not Congress pursuing a legitimate legislative objective.

[00:21:42] Speaker 04:
Because it's law enforcement.

[00:21:43] Speaker 04:
That's the real object here.

[00:21:44] Speaker 04:
And why is it law enforcement?

[00:21:46] Speaker 04:
Because the committee isn't searching for illegality.

[00:21:48] Speaker 04:
It's in the first sentence.

[00:21:50] Speaker 05:
Well, isn't that what Congress would always do if it seeks to amend a piece of legislation?

[00:21:55] Speaker 05:
I mean, if Congress thinks there's a problem with the Federal Communications Act with some aspect of the way it sets rates, isn't it going to seek testimony on whether companies are complying with it and whether

[00:22:11] Speaker 05:
they actually need to amend the statute?

[00:22:14] Speaker 04:
If they were generally looking at companies, this comes from the Senate Select Committee.

[00:22:17] Speaker 04:
If there was a general forward-looking problem with an industry, with a market, I think I would have a harder time saying that this is a law enforcement.

[00:22:27] Speaker 04:
But when you're hyper-focused on one individual, when you said over and over

[00:22:32] Speaker 04:
that what we care about here is proving that illegal conduct.

[00:22:34] Speaker 04:
And when the Speaker of the House says, I want to see the President in prison, I don't think we have to work real hard to see what happens.

[00:22:42] Speaker 05:
But Cummings letter also says they're pursuing legislation.

[00:22:45] Speaker 05:
And in fact, there were several bills pending.

[00:22:48] Speaker 05:
It's not like the statements you point are the only ones.

[00:22:54] Speaker 05:
The same letter that I was going from goes on to say that they need this information to consider legislation.

[00:23:03] Speaker 04:
If I could answer and reserve the balance of my time.

[00:23:09] Speaker 04:
What Shelton said, what this court's opinion in Shelton says is you can't say we want to investigate an individual and then when they get called on and say, oh, we might have remedial legislation, because that's non-falsified.

[00:23:20] Speaker 04:
That could be done at any time and any place.

[00:23:23] Speaker 04:
And second, I think the statement to the committee here, this Supreme Court said just, I guess it was last week or 10 days ago, that the court doesn't have to be naive.

[00:23:31] Speaker 04:
The court what?

[00:23:31] Speaker 04:
Does not have to be naive.

[00:23:33] Speaker 04:
The court does not have to accept these sorts of, oh, well, here's some legislation, kinds of arguments, and deny what's staring the court in its face.

[00:23:42] Speaker 01:
Wait.

[00:23:43] Speaker 01:
First of all, there's draft bills that have gotten through the House and draft bills pending.

[00:23:49] Speaker 01:
And we're supposed to say that's all a ruse?

[00:23:53] Speaker 04:
The ones that are pending mostly deal with issues that are far collected.

[00:23:56] Speaker 01:
No, but there's ones that deal with ethics, financial disclosure, contracting.

[00:24:00] Speaker 01:
Right?

[00:24:01] Speaker 01:
There's draft ones and the ones that have been passed, correct?

[00:24:03] Speaker 04:
Some of them are past the House.

[00:24:04] Speaker 01:
Correct.

[00:24:05] Speaker 01:
There's either pending or past the House.

[00:24:06] Speaker 01:
They cover ethics conflicts, financial disclosure, and then contracting?

[00:24:10] Speaker 01:
Correct.

[00:24:11] Speaker 01:
Correct.

[00:24:11] Speaker 01:
OK.

[00:24:11] Speaker 01:
And so if we were to, under your naive theory, we would have to say that was all a ruse.

[00:24:18] Speaker 01:
It wasn't, can we do that?

[00:24:19] Speaker 04:
No.

[00:24:20] Speaker 04:
What I think you have to say is that whether there's a connection, whether there's a genuine connection between this.

[00:24:25] Speaker 01:
How would you say it's not genuine to the genuine?

[00:24:27] Speaker 04:
And if I could reserve the balance after I respond.

[00:24:29] Speaker 04:
We'll give you plenty of time.

[00:24:31] Speaker 04:
OK.

[00:24:32] Speaker 04:
Then I would say, let's just look at what the committee members have said.

[00:24:35] Speaker 01:
Just look at what they say?

[00:24:36] Speaker 01:
Is that what our task is?

[00:24:37] Speaker 01:
That's what I'm trying to figure out, how you want this naive inquiry to work.

[00:24:41] Speaker 01:
Don't we have to look at everything?

[00:24:43] Speaker 01:
And then when we see, I'll just finish this sentence so you can react.

[00:24:46] Speaker 05:
No, no.

[00:24:47] Speaker 05:
If you look at just what they said, Carlson Cummings

[00:24:52] Speaker 05:
both in this letter and in other communications in this case, says that he needs this information to evaluate, to pursue legislation.

[00:25:04] Speaker 05:
He says it many times.

[00:25:05] Speaker 05:
And in fact, as Judge Millett said, there's, okay, so H.R.

[00:25:10] Speaker 05:
1, which is passed the House, I think, would amend the Ethics in Government Act.

[00:25:19] Speaker 05:
to include assets and liabilities of closely held corporations.

[00:25:27] Speaker 05:
That's directly in point here.

[00:25:30] Speaker 05:
H.R.

[00:25:31] Speaker 05:
706 would require presidents and candidates to submit their tax returns.

[00:25:38] Speaker 05:
These bills have passed the House and they are directly related to the subject of the subpoena.

[00:25:46] Speaker 05:
Do we just ignore those?

[00:25:49] Speaker 04:
So one, again, we think that underlying legislation has applied unconstitutional.

[00:25:55] Speaker 04:
I've said, I've given you my best on that.

[00:25:58] Speaker 04:
I think, nevertheless, the court has an obligation to look at how this all started and what the committee said when it was issuing the subpoena.

[00:26:06] Speaker 04:
And their own memorandum says,

[00:26:08] Speaker 04:
the very first sentence that they're looking to see whether the president engaged in illegal conduct.

[00:26:13] Speaker 04:
Now the question the court has to answer for itself is, I don't disagree with you on that, that there is legislation out there.

[00:26:18] Speaker 04:
But the court, when McGrane says look for the real object.

[00:26:21] Speaker 01:
I'm just asking how we do that, really.

[00:26:23] Speaker 01:
I'm trying, because you realize this is a delicate area for courts, and normally you have all these presumptions.

[00:26:30] Speaker 01:
And so when you have, you've pointed to statements,

[00:26:35] Speaker 01:
what politicians have made.

[00:26:36] Speaker 01:
And let's look only at the ones that were before the subpoena issue, not after, to support your cause.

[00:26:42] Speaker 01:
But then there's statements by the chair, Mr. Cummings, and there's actual bills.

[00:26:50] Speaker 01:
And so do you have a test, other than the word naivete, can you tell me what your legal test or rule is for us saying that those statements you cite

[00:27:02] Speaker 01:
have to control over all this other evidence, or how I should weigh it or evaluate it.

[00:27:06] Speaker 04:
I think it's, and it's been not too helpful, but I think it's a totality of the available evidence.

[00:27:11] Speaker 04:
We have an over 300 page joint appendix here.

[00:27:13] Speaker 04:
We have the memorandum that the district court relied on, which I believe my friend also says is the starting point for the analysis.

[00:27:22] Speaker 04:
We have the statements that were made at the current hearing.

[00:27:24] Speaker 01:
Which says legislation, by the way, the memorandum.

[00:27:27] Speaker 04:
Agreed, but it leaves with a legal context.

[00:27:28] Speaker 04:
That's the first, that's the first thing.

[00:27:31] Speaker 01:
One in each pot.

[00:27:32] Speaker 04:
And I think if you took all the comments that were made contemporaneously and you stacked up the ones that made it look like

[00:27:38] Speaker 04:
They just want to see whether the president's violating the law.

[00:27:41] Speaker 04:
And the other, where they say, this is really just a general concern about legislation, I don't think the pile is high enough.

[00:27:47] Speaker 01:
Oh, but that other bucket has to include draft bills and bills that have passed the House.

[00:27:51] Speaker 04:
I'm happy to include them.

[00:27:52] Speaker 04:
I think my pile is way higher.

[00:27:54] Speaker 04:
And if I could just, I don't know, guys, but you said delicate.

[00:27:59] Speaker 04:
I'm sorry, delicate, yes.

[00:28:00] Speaker 04:
It is.

[00:28:01] Speaker 04:
That's why the statutory issue is so important, because these are hard questions.

[00:28:05] Speaker 04:
And before the court pronounces broad rules

[00:28:08] Speaker 04:
Congressional subpoena to the President, we should be sure that the House has authorized the committee to issue it.

[00:28:15] Speaker 02:
In response to Judge Millett, I mean, one question I have is you say that we should be looking for the real purpose or whether this is genuine.

[00:28:20] Speaker 02:
How does that, how is that different from a search for motive, which I think both parties agree is impermissible, right?

[00:28:25] Speaker 02:
Where do we draw that line between

[00:28:27] Speaker 02:
looking at the motive of the committee, which I think we agree is off the table, versus the real purpose, as you say in your brief.

[00:28:34] Speaker 02:
What's the distinction?

[00:28:35] Speaker 04:
It's different between what and why.

[00:28:37] Speaker 04:
So there's an important what question here.

[00:28:40] Speaker 04:
Is this a law enforcement investigation or a legislative inquiry?

[00:28:43] Speaker 04:
That's the what.

[00:28:44] Speaker 04:
And that's what I think Judge Malan and I were discussing, which is where is the evidence of what?

[00:28:49] Speaker 04:
Is it legislation or is it law enforcement?

[00:28:52] Speaker 04:
The why.

[00:28:53] Speaker 04:
Whatever you answer the what question, was it politically motivated?

[00:28:57] Speaker 04:
Are they mad at the president?

[00:28:58] Speaker 04:
Those are off the table in this case because Eastland says they're off the table.

[00:29:02] Speaker 04:
But we're not relying on political motives or any of that stuff to prove up our case that this is one question.

[00:29:07] Speaker 02:
Even the what question though, I mean the Supreme Court has said on a number of occasions that there can be some incidental law enforcement type of purpose on the way to investigating something for legitimate legislation.

[00:29:20] Speaker 02:
So if you have both, why is it not a legitimate legislative purpose?

[00:29:24] Speaker 04:
It's a primary purpose test.

[00:29:25] Speaker 04:
That's some language in some cases, and for the reasons I've articulated it.

[00:29:30] Speaker 05:
Which case is it?

[00:29:31] Speaker 04:
So I have to find the language, but I think it was Ukraine, but I'll have the answer on the phone.

[00:29:39] Speaker 04:
The real object question, I think, gets you to the same place anyway.

[00:29:42] Speaker 04:
So I think the real object here, I think if you look at what the committee did and said, is they want to investigate the president, they want to see something illegal was done, and if it helps legislatively, maybe that'll be okay too, but that's not what this is about.

[00:30:00] Speaker 01:
Let me just explain to you how I'm thinking about this argument as to whether legislation could be had in the Supreme Court.

[00:30:07] Speaker 01:
legitimate legislation could be had in the Supreme Court's test.

[00:30:11] Speaker 01:
And it's a very generous test to the legislature.

[00:30:15] Speaker 01:
It sounds to me almost like you would have to show that no law could come out of this, could be related to this information.

[00:30:25] Speaker 01:
This information could not inform any proper legislation.

[00:30:30] Speaker 01:
You've identified forms of legislation that you argue

[00:30:34] Speaker 01:
and certainly raise a substantial question, whether it be constitutional or not, when applied directly to the president.

[00:30:40] Speaker 01:
But am I right or wrong to think that your task under this test is to show that no legitimate legislation could ensue?

[00:30:49] Speaker 04:
So if I might respond, my line is on.

[00:30:54] Speaker 04:
I disagree respectfully with the test as articulated.

[00:30:57] Speaker 04:
In this case, and I have a reason in the case to prove it.

[00:31:00] Speaker 04:
So let me start with the case first, I think that's easier.

[00:31:04] Speaker 04:
In Tobin, the court was really struggling with whether Congress could enact legislation under the Compact Clause.

[00:31:11] Speaker 04:
And the court goes through all sorts of legislation that might be constitutional.

[00:31:15] Speaker 04:
It said, well, can they redraw state lines?

[00:31:18] Speaker 04:
Probably not, but maybe they can do other things that revise compacts.

[00:31:21] Speaker 04:
The court was on its own articulating some possible legislation, and even that.

[00:31:27] Speaker 04:
wasn't enough to clear the hurdle, because if it had cleared the hurdle, there would have been no constitutional question to avoid.

[00:31:33] Speaker 04:
So I think Tobin, as a matter of precedent of this Court, answers that question.

[00:31:37] Speaker 05:
But see, here you have a bill passed by the House that simply adds to the disclosure requirement, assets and liabilities of closely held corporations.

[00:31:47] Speaker 05:
That's it.

[00:31:48] Speaker 04:
That's not constitutional, is it?

[00:32:02] Speaker 04:
explaining how these issues have been untested.

[00:32:04] Speaker 04:
That is just, that question that Chief Justice wrote about was just the basic application of existing financial disclosure laws, let alone more onerous ones that Congress is entailing here.

[00:32:13] Speaker 04:
If it's not a serious question, I don't understand what the letter would say.

[00:32:17] Speaker 01:
But those are laws directly operating on the officials.

[00:32:21] Speaker 01:
But what if Congress gets to set the President's salary?

[00:32:24] Speaker 01:
Correct?

[00:32:25] Speaker 01:
I mean, they can't diminish it during term, all right?

[00:32:27] Speaker 01:
Right, they do.

[00:32:28] Speaker 01:
It's in the Constitution.

[00:32:30] Speaker 01:
And they can't, they couldn't pass one now that would change President Trump's salary for this term, but they could certainly say, pass now, a law that would say starting January 2021, there's two salary options.

[00:32:45] Speaker 01:
The president that complies with conflict of interest and financial disclosure laws, we think that puts them a step up on

[00:32:54] Speaker 01:
efficiently supervising the public fisc and public welfare will get salary X. Any president that does not comply with those requirements that we are now enacting and the ones we've already enacted will get a salary, but it will be half that amount.

[00:33:16] Speaker 01:
Any question they could do that?

[00:33:18] Speaker 04:
serious question.

[00:33:20] Speaker 04:
Just off the top of my head, unconstitutional conditions would have to be.

[00:33:24] Speaker 01:
It's not a condition, that just says what you get to pick your salary.

[00:33:28] Speaker 01:
You can run, anyone can run and they get to pick their salary based on how they behave.

[00:33:33] Speaker 04:
But if you just take the drug driving cases from the Supreme Court, North Dakota said in Birchfield,

[00:33:37] Speaker 04:
all you have to do to drive on our roads is submit to random rationalizers.

[00:33:41] Speaker 04:
But that was a hard and losing unconstitutional position.

[00:33:45] Speaker 01:
People have constitutional rights.

[00:33:47] Speaker 01:
Does a presidential candidate have a constitutional right to a certain salary?

[00:33:50] Speaker 01:
I don't think so.

[00:33:51] Speaker 01:
I mean, they get to set the salary.

[00:33:53] Speaker 01:
There's no dispute about that.

[00:33:55] Speaker 01:
So there's plenty of legislation that they could pass that would say no government agency shall use appropriated funds to execute

[00:34:07] Speaker 01:
policies or programs that are infected by a conflict of interest with the President?

[00:34:13] Speaker 01:
That would be perfectly fine.

[00:34:14] Speaker 01:
I think those would be deeply controversial and I think consciously problematic, but I would say... So just to be clear then, so your view is that when it comes to the President's conflict of interest, nothing Congress can do.

[00:34:25] Speaker 01:
That's why you say there's no legit, nothing Congress could do regulating governmental agencies, governmental employees,

[00:34:33] Speaker 01:
or allocating salaries or appropriating funds to protect the people of the United States, the public treasury from the president's conflict of interest.

[00:34:43] Speaker 04:
So with respect to the president, the answer is yes.

[00:34:46] Speaker 04:
But secondly, I think your example just in the light of the salary actually really helps my argument because it shows that the framers, when they wanted to set conditions on the presidency and give Congress discretion, they put it in the text.

[00:34:56] Speaker 04:
They did not put financial disclosures in the text, which is why it's illegal.

[00:35:04] Speaker 05:
Let me ask you about the two questions.

[00:35:07] Speaker 05:
One is on your clear statement argument, if I wasn't persuaded that the clear statement wouldn't apply, do you have any argument that

[00:35:21] Speaker 05:
that the normal reading of the rules would authorize this subpoena, would not authorize this subpoena.

[00:35:27] Speaker 04:
Can I interest you in constitutional avoidance, or is that off the table too?

[00:35:30] Speaker 05:
No, but we'll get to that in a minute.

[00:35:31] Speaker 04:
Well, those are different.

[00:35:32] Speaker 05:
Yeah, no, I agree with you.

[00:35:33] Speaker 05:
Let's just stick with this one.

[00:35:36] Speaker 05:
Well, either one of them.

[00:35:37] Speaker 05:
Suppose I think that's a good point.

[00:35:39] Speaker 05:
Suppose I think that neither doctor applies here.

[00:35:44] Speaker 05:
And again, hypothetical.

[00:35:45] Speaker 05:
Suppose I think that neither constitutional avoidance nor clear statement rule applies.

[00:35:51] Speaker 05:
Do you concede then that these rules authorize the committee to pursue this?

[00:35:58] Speaker 03:
They would appear to you, yes.

[00:36:00] Speaker 03:
But I do think, obviously, they do apply, and I think the president is right.

[00:36:04] Speaker 02:
I understand that.

[00:36:05] Speaker 02:
Yeah.

[00:36:05] Speaker 02:
I understand that, although... Why do you think they include the president, if those presumptions don't apply?

[00:36:12] Speaker 04:
I think, well, I think they do apply, but I think... The hypothetical was the conduct.

[00:36:17] Speaker 04:
I haven't thought about it deeply, but I would say that

[00:36:21] Speaker 04:
you know, there's an argument to be made for it because it says all government, you know, all, and uses the word all, but it doesn't name the president.

[00:36:29] Speaker 04:
I don't think there's an intent to include the president, so I think there's an argument to be made, you know, certainly against its inclusion too, but it's much closer.

[00:36:37] Speaker 01:
And to be clear, your argument on both these fronts for their constitutional avoidance or clear statement isn't limited to the subpoena power.

[00:36:45] Speaker 01:
It's whether there's any power even to

[00:36:49] Speaker 01:
have oversight at all.

[00:36:51] Speaker 01:
Is that right?

[00:36:52] Speaker 01:
Whether this grants any oversight authority with respect directly to the office of the president.

[00:36:57] Speaker 01:
Is that correct?

[00:36:59] Speaker 03:
Yes.

[00:36:59] Speaker 01:
So a committee couldn't even send a polite letter that would say, if you wouldn't mind, they don't have the power to even look.

[00:37:08] Speaker 04:
This is about their subpoena power.

[00:37:11] Speaker 04:
So I'm just talking about.

[00:37:12] Speaker 01:
Oh, no.

[00:37:13] Speaker 01:
I just asked you, because the rule, rule 10, is about all power.

[00:37:17] Speaker 01:
I'm sorry, I want to make sure I clearly understand your argument here.

[00:37:20] Speaker 01:
Is your argument that the Committee on Oversight has not been given any power of oversight as to the Office of President?

[00:37:33] Speaker 01:
That's one.

[00:37:34] Speaker 01:
Or is it that they've only not been given subpoena power as to the Office of the President?

[00:37:39] Speaker 04:
The former, I apologize.

[00:37:41] Speaker 01:
Which means they can't even look.

[00:37:42] Speaker 01:
They can't ask questions, they can't look.

[00:37:44] Speaker 04:
That's between them and the colleagues.

[00:37:45] Speaker 04:
I would not have standing to object if someone said a letter that had no compulsion process.

[00:37:50] Speaker 01:
No, no.

[00:37:50] Speaker 01:
But under your theory of the rule, that absent this clear statement, there is no oversight authority at all that's been conferred or invoked by Congress.

[00:38:04] Speaker 04:
So the answer is yes, although we haven't needed to go nearly that far to prove our arguments in this case.

[00:38:09] Speaker 01:
I'm just asking what your argument is in this case.

[00:38:11] Speaker 01:
Yes.

[00:38:11] Speaker 01:
It's not confined to subpoenas.

[00:38:13] Speaker 05:
So let me go on to constitutional avoidance.

[00:38:18] Speaker 05:
I'm trying to understand how your theory works.

[00:38:24] Speaker 05:
Do I understand what you're saying?

[00:38:27] Speaker 05:
Let's set aside for a minute the specific pieces of legislation that Congress has passed here.

[00:38:34] Speaker 05:
Let's just set that aside for a minute.

[00:38:36] Speaker 05:
Is it your theory that

[00:38:38] Speaker 05:
The constitutional avoidance doctrine would apply if there is constitutional doubt as to any possible action the Congress could take.

[00:38:54] Speaker 05:
Is that your point?

[00:38:56] Speaker 04:
I don't think it is.

[00:38:57] Speaker 04:
Let me try to state how I see it and maybe it will answer it.

[00:39:01] Speaker 04:
If there is any doubt that whether this subpoena is constitutional,

[00:39:06] Speaker 04:
the cannon kicks in.

[00:39:07] Speaker 05:
No, but that talks the question.

[00:39:09] Speaker 05:
I understand that.

[00:39:10] Speaker 05:
But the antecedent question to that is, is Congress considering?

[00:39:14] Speaker 05:
We all agree that Congress's investigative authority is as broad as its legislative authority.

[00:39:20] Speaker 05:
So the question is, I thought you were arguing that the legislation that Congress either has passed or is considering may well be unconstitutional.

[00:39:29] Speaker 05:
And that's what triggers the constitutional avoidance principle, right?

[00:39:32] Speaker 04:
That is one of the things that triggers it, not the only thing.

[00:39:35] Speaker 05:
Well, but how can we apply the doctrine to legislation that, proposed legislation that doesn't even exist?

[00:39:45] Speaker 05:
I mean, we don't know what Congress will propose if it gets this information and has hearings.

[00:39:51] Speaker 05:
And Congress has also sworn to uphold the Constitution.

[00:39:55] Speaker 04:
Hopefully for me, Tobin answers that question for us.

[00:40:00] Speaker 04:
So Tobin, this is literally what Tobin was struggling with.

[00:40:04] Speaker 04:
We don't know what Congress might do under the compact laws.

[00:40:07] Speaker 04:
We don't know what the legislation might look like.

[00:40:09] Speaker 04:
It might be constitutional.

[00:40:11] Speaker 04:
It might not.

[00:40:12] Speaker 04:
That itself triggered the candidate.

[00:40:14] Speaker 04:
It's binding circuit press.

[00:40:17] Speaker 01:
Does your position apply to presidential candidates?

[00:40:24] Speaker 04:
This is not a candidate issue, so we have to.

[00:40:27] Speaker 01:
Well, there's coverage of the subpoena during the time of presidential candidacy.

[00:40:31] Speaker 01:
So does it apply to presidential candidates?

[00:40:36] Speaker 04:
We have not researched that issue because the committee has not raised it as basis for the subpoena.

[00:40:41] Speaker 04:
I understand the records go back that far.

[00:40:43] Speaker 01:
Sure.

[00:40:43] Speaker 01:
And financial disclosure obligations and filings by then candidate Trump are included

[00:40:51] Speaker 01:
finally included within the subpoena.

[00:40:52] Speaker 01:
So I just want to make sure.

[00:40:53] Speaker 01:
So you're only challenging this as it applies to the extent it seeks documents that cover him during the time he was president.

[00:41:03] Speaker 04:
We're challenging the purpose of the subpoena as being unconstitutional.

[00:41:06] Speaker 01:
If the purpose of the subpoena is unconstitutional... Well, I'm back to this question of whether legislation could be had.

[00:41:13] Speaker 01:
And if there's no dispute by you that there's any constitutional implications with requiring presidential candidates to file financial disclosure forms and for Congress to enact obligations to file financial disclosure forms, then that's certainly legislation that could be covered by the subpoena.

[00:41:36] Speaker 04:
because our friends haven't argued it, and there is no basis for the court to invoke arguments.

[00:41:41] Speaker 04:
And in fact, Judge Mehta, in his opinion, cited an entire litany of provisions on the Ethics in Government Act that might sustain this legislation.

[00:41:49] Speaker 01:
They clearly argued about the financial disclosure requirements.

[00:41:52] Speaker 01:
And those were both pre-imposed, and the subpoena covers pre- and post-presidency.

[00:41:57] Speaker 01:
And you also have to show no, like, I'm asking you whether you've met your task of showing no legislation could be passed.

[00:42:02] Speaker 01:
As to what's covered by the subpoena, sorry.

[00:42:06] Speaker 04:
I think there are two different issues here.

[00:42:08] Speaker 04:
One is the period the subpoena covers.

[00:42:11] Speaker 04:
The second is Congress's reasons for issuing it.

[00:42:14] Speaker 04:
In the conversation that I am having, we are attacking the reasons for issuing it, and there's no evidence in the record, not in the memo, not in the district court opinion, not in any of the briefing, where the committee has relied on candidate issues as a basis for issuing the subpoena, and it is the committee

[00:42:31] Speaker 04:
that is tasked with asserting the reasons.

[00:42:32] Speaker 04:
And back to your earlier question, if I might, you asked me about the generous standard of evaluating whether constitutional legislation would be valid.

[00:42:40] Speaker 04:
And I started with Tobin, but I wanted to get to the more fundamental point, which is, I don't believe Congress gets that kind of benefit of doubt in a separation of powers case.

[00:42:50] Speaker 04:
I think when you're talking about, when Congress is in the fields of commerce... Well, Congress, it's been quite set, we presume.

[00:42:56] Speaker 01:
legitimate action by Congress in this area.

[00:42:59] Speaker 01:
We start with a presumption of legitimacy, even in separation of powers.

[00:43:03] Speaker 04:
Those were not separation of powers cases, and I pointed to court in our reply brief to Justice Scalia, and I know it wasn't dissent in Morrison v. Olson, but it was explaining what the majority had done with no rebuttal from the majority that in separation of powers questions.

[00:43:16] Speaker 01:
That doesn't make it the majority opinion.

[00:43:19] Speaker 04:
We've got everything in a dissent.

[00:43:20] Speaker 01:
Sorry.

[00:43:21] Speaker 04:
I'm not trying to make it the majority opinion.

[00:43:23] Speaker 04:
I'm just articulating a principle that I think nobody disagrees with, which is that in an area where Congress gets the benefit of that, say, commerce, I think all those presumptions follow.

[00:43:34] Speaker 04:
But in an area in which the presumption is Congress is fenced off, whether it's regulating the president or regulating the Supreme Court, because there are ethics statutes just like these that have been

[00:43:44] Speaker 04:
passed against the justice as well.

[00:43:46] Speaker 04:
And whatever you say here definitely will apply to the committee.

[00:43:50] Speaker 01:
We started with this question that you don't deny that the House has this power.

[00:43:55] Speaker 01:
It's just you want them to be explicit when they're invoking it and sending it off to the committee.

[00:44:00] Speaker 01:
And I thought I got a clear answer from you on that.

[00:44:02] Speaker 01:
Am I incorrect?

[00:44:03] Speaker 04:
That's on statutory, not on constitutional.

[00:44:05] Speaker 01:
No, no, I'm asking.

[00:44:06] Speaker 01:
OK, so you're saying you dispute whether the House

[00:44:12] Speaker 01:
even if it passed the resolution written just as you want, and assuming it had good legislative, but was to the end of legitimate legislation, it just doesn't have this power?

[00:44:23] Speaker 04:
Correct.

[00:44:24] Speaker 04:
There's two questions.

[00:44:25] Speaker 01:
Does Paul have this power to oversee the president in any capacity?

[00:44:31] Speaker 04:
The legislation that has been articulated here, to all I can point to, because... Yeah, I think I'm not being... I'm sorry, and I don't want to be unfair to you at all.

[00:44:39] Speaker 01:
I really am trying to understand what your position

[00:44:42] Speaker 01:
is, and I had thought your starting position was we recognize that Congress has oversight authority over the entire executive branch, including the president.

[00:44:56] Speaker 01:
But because particular exercises of that can start pushing non-constitutional fault lines, we're not going to assume the House invoked that power unless they say so explicitly.

[00:45:11] Speaker 01:
but they do have that power.

[00:45:13] Speaker 01:
It might be packaged wrong in a particular case, but they have that power as long as it is tied to legitimate legislative ends like what should the salary of the president be going forward, right?

[00:45:28] Speaker 01:
And so that's what I thought your argument was, but if it's not, if your argument is the very predicate of whether, assuming they had a laundry list of perfectly constitutional statutes they were ready to enact,

[00:45:41] Speaker 01:
they still just do not structurally have any oversight power as to this one little, that little, I don't know, this one isolated spot in the executive branch called the Office of Presidency.

[00:45:55] Speaker 01:
Is it A or B?

[00:45:56] Speaker 04:
There'll be a lot in there.

[00:45:58] Speaker 04:
And so if I could just state our position and hopefully that would clear it up.

[00:46:03] Speaker 04:
First question for us is does the committee have statutory authority to issue this payment?

[00:46:07] Speaker 04:
And that goes to whether they just name the president.

[00:46:11] Speaker 04:
Let's assume that the statute says everything I want it to say.

[00:46:14] Speaker 04:
The House will say everything I want it to say.

[00:46:16] Speaker 04:
Then Congress has a second hurdle it has to pass.

[00:46:19] Speaker 04:
Does the subpoena have a legitimate legislative purpose?

[00:46:22] Speaker 04:
As part of that inquiry, they have to show that valid legislation could be had.

[00:46:26] Speaker 04:
I am not trying to stand here today and say in the abstract,

[00:46:30] Speaker 04:
Congress has no power ever to pass any statute that touches the presidency.

[00:46:34] Speaker 04:
I am saying that the statutes that have been proposed here, whether hypothetically, whether to pass the House like H.R.

[00:46:40] Speaker 04:
1, are not valid legislation for the reasons articulated in our brief.

[00:46:45] Speaker 01:
So Congress does have the power.

[00:46:46] Speaker 01:
You just don't like.

[00:46:48] Speaker 01:
What I'm trying to do is assume away prongs one and two of that answer.

[00:46:52] Speaker 01:
I'm giving you that you've got your clear statement.

[00:46:54] Speaker 01:
But I'm also telling you they've got a laundry list of perfectly constitutional legislation.

[00:47:00] Speaker 01:
that reacts to presidential corruption, alleged, not saying here, hypothetical presidents alleged corruption, but doesn't make that president do anything.

[00:47:12] Speaker 01:
It just regulates appropriations, salaries, and agency activities elsewhere in the executive branch.

[00:47:20] Speaker 01:
Does the House have one, oversight power over the office of presidents, and two, would it include the subpoena?

[00:47:29] Speaker 04:
It would be a hard question.

[00:47:30] Speaker 04:
It would be a different question.

[00:47:31] Speaker 01:
Do you have a position on it?

[00:47:32] Speaker 01:
So I have to know what the legislation says to know whether... I've told you that the hypothetical assumed that it is regulating appropriations for people other than the President.

[00:47:46] Speaker 04:
If the legislation said no money shall be appropriate to any agency, that how they talk to the President... Can you tell me what statute they could pass?

[00:47:56] Speaker 04:
anywhere in any statute.

[00:47:59] Speaker 01:
If they imagine, imagine you have the future, the most corrupt president known to humankind, open, flaunting doing it.

[00:48:10] Speaker 01:
What law could Congress

[00:48:13] Speaker 04:
I think it's very difficult to think of one.

[00:48:16] Speaker 04:
OK, you can't think of one.

[00:48:17] Speaker 04:
I'd like to take a shot and explain why it's not.

[00:48:20] Speaker 04:
So just look at the Presidential Records Act.

[00:48:23] Speaker 04:
That would be the most innocuous one, and it survived constitutional review.

[00:48:28] Speaker 04:
So even there, the courts wrang their hands about it, because all the tidbits require presidential record keeping.

[00:48:35] Speaker 04:
But even there, at the most gentle, touchy point.

[00:48:39] Speaker 01:
Yes, that was by the Office of the Presidency.

[00:48:41] Speaker 01:
What I'm telling you is

[00:48:43] Speaker 01:
No legislation operates on the office of the presidency, the president, him or herself.

[00:48:50] Speaker 05:
When you give an example, listening to this debate, suppose as a result of these hearings, Congress decides to strengthen the enforcement powers of the Office of Government Ethics.

[00:49:01] Speaker 05:
That's all they do.

[00:49:03] Speaker 05:
Is that what it's called, the office?

[00:49:05] Speaker 05:
I believe it is.

[00:49:06] Speaker 05:
I suppose that's all they do.

[00:49:08] Speaker 05:
They give it more money.

[00:49:10] Speaker 05:
and they increase its authority to look at documents and things like that.

[00:49:16] Speaker 04:
That's all they do.

[00:49:18] Speaker 04:
That unconstitutional?

[00:49:19] Speaker 04:
I think it's a much harder question than the ones presented here.

[00:49:23] Speaker 05:
Why is it even close?

[00:49:24] Speaker 04:
Even assuming that it's constitutional, we still win this case because that's not what's happening.

[00:49:29] Speaker 05:
Well, we don't know.

[00:49:30] Speaker 05:
That's the point.

[00:49:31] Speaker 05:
And what we do know is that one of the things Congress is looking at is the Office of Government Ethics and whether it's

[00:49:37] Speaker 05:
powers of subpoena.

[00:49:38] Speaker 05:
It hasn't passed any legislation yet, but there's a statute that falls right within the category that Judge Millett is talking about, I think.

[00:49:47] Speaker 04:
And this gets back to where I was earlier about the genuine real purpose of the subpoena.

[00:49:52] Speaker 04:
I don't think

[00:49:53] Speaker 01:
No, we're still back at what your position is.

[00:49:56] Speaker 02:
In that hypothetical, would you be left arguing about the pertinency of the subpoena?

[00:50:02] Speaker 04:
We'd have at least two arguments.

[00:50:03] Speaker 04:
That would be one of them.

[00:50:04] Speaker 04:
Yes.

[00:50:05] Speaker 04:
The other would be whether that was the real object of the subpoena.

[00:50:08] Speaker 04:
In other words, there's two scenarios.

[00:50:10] Speaker 04:
One is, the committee says, we just really want to know if the President's Committee Legal Acts

[00:50:16] Speaker 04:
But we know we've got to sort of come up with some legislative thing.

[00:50:19] Speaker 04:
So we'll just tack this on.

[00:50:21] Speaker 04:
Shelton says that's not OK.

[00:50:23] Speaker 04:
The other scenario is Congress.

[00:50:25] Speaker 05:
I'm sorry.

[00:50:25] Speaker 05:
Shelton, that's not what Shelton says.

[00:50:28] Speaker 05:
Shelton, as the government pointed out, you didn't quote the whole sentence in Shelton.

[00:50:32] Speaker 05:
Shelton said that if there is legislation that could be had, then the fact that it might also be law enforcement is wrong.

[00:50:40] Speaker 05:
That's what Shelton says.

[00:50:41] Speaker 04:
But I think Shelton was applying McCrane, and McCrane was making the point about what the real object is.

[00:50:47] Speaker 05:
Shelton makes very clear.

[00:50:51] Speaker 05:
Shelton makes clear exactly what Judge Riles said earlier, which is that if Congress is pursuing a legitimate legislative objective, it doesn't become illegitimate just because some of the information they

[00:51:05] Speaker 05:
that would be revealed would be relevant to law enforcement.

[00:51:08] Speaker 04:
That's what Shelton says.

[00:51:09] Speaker 04:
I don't disagree, but at the same time, Shelton doesn't say that the committee can target the president for purely improper reasons and then hold up legislation to inoculate themselves.

[00:51:20] Speaker 05:
That's true.

[00:51:23] Speaker 05:
But how do we make the judgment about whether, I mean, you argue that all of these legislative efforts are illegitimate, that they're just cover.

[00:51:30] Speaker 05:
But if you just look at the straight record, over and over again, they're talking about legislation, they've passed legislation, they didn't mention the Office in Government Act.

[00:51:38] Speaker 05:
How do we disregard all that?

[00:51:41] Speaker 05:
I mean, if you were writing this part of an opinion,

[00:51:44] Speaker 05:
What would you, how would you do that?

[00:51:46] Speaker 04:
How would you disregard all of that?

[00:51:48] Speaker 04:
I would start with the first sentence in the memo that everyone believes is the starting point for the analysis, which says, this committee has full authority to investigate whether the president has engaged in illegal conduct.

[00:51:58] Speaker 04:
Then I would turn to the Cohen hearing, which was in this.

[00:52:00] Speaker 05:
But what about the rest of the memo where it says, it lists four things and says it's pursuing legislation?

[00:52:07] Speaker 03:
It actually, it actually doesn't.

[00:52:11] Speaker 03:
Excuse me?

[00:52:12] Speaker 01:
Oh, I guess.

[00:52:13] Speaker 01:
Sure it does.

[00:52:14] Speaker 01:
It says.

[00:52:15] Speaker 01:
K.A.

[00:52:15] Speaker 01:
107.

[00:52:16] Speaker 01:
The committee's interest in these matters informs its view of multiple laws and legislative proposals under our jurisdiction.

[00:52:21] Speaker 04:
That's after that.

[00:52:23] Speaker 04:
The first sentence where it sets its purposes, it says, committee has full authority to investigate whether the president has engaged in illegal conduct, whether he has conflicts of interest, whether he's complying with the eminence clause, and whether he's accurately.

[00:52:35] Speaker 05:
And it has to do all of those things if it wants to consider legislation.

[00:52:38] Speaker 05:
Otherwise, why would it consider legislation?

[00:52:41] Speaker 04:
to come up with a rationale to defend something that would otherwise be unlawful.

[00:52:45] Speaker 05:
OK, but what I'm asking you, Mr. Carlos-Luis, how, this is a serious question, how, what's the principle we would apply to reach your conclusion?

[00:52:59] Speaker 05:
That is, to disregard the evidence in the record that there is.

[00:53:04] Speaker 05:
In other words, what's the principle that says this is just a ruse?

[00:53:08] Speaker 04:
I think it's, how do we do that?

[00:53:10] Speaker 04:
So I think it's not that you have to disregard the evidence, but that it is overcome by a mountain of contrary evidence.

[00:53:20] Speaker 05:
You're just stating the conclusion.

[00:53:21] Speaker 05:
You're not giving me a principle.

[00:53:23] Speaker 04:
So the principle comes from the case law, which is what sources should the court look to to answer the question at all?

[00:53:29] Speaker 04:
If I could start there.

[00:53:31] Speaker 04:
So let's start.

[00:53:33] Speaker 04:
Is there a resolution?

[00:53:34] Speaker 04:
No.

[00:53:36] Speaker 04:
that's a strict one again.

[00:53:37] Speaker 05:
That's a different argument.

[00:53:38] Speaker 05:
We take that argument.

[00:53:40] Speaker 04:
We've got it.

[00:53:40] Speaker 04:
I just mean, in terms of looking for evidence, I'm following the case law about where you start.

[00:53:45] Speaker 04:
So you would ordinarily start with a resolution.

[00:53:46] Speaker 04:
There isn't.

[00:53:48] Speaker 04:
Then you go to the committee memo, which I think Fairley took as the best possible substitute for a resolution.

[00:53:54] Speaker 04:
So you go there.

[00:53:55] Speaker 04:
Then you go to the hearings, which Shelton says, and other cases say, you can look at what is said.

[00:54:01] Speaker 04:
And I think you can look at other contemporary statements made by

[00:54:05] Speaker 04:
And finally, I don't think the court can disregard what the speaker is saying publicly.

[00:54:10] Speaker 01:
Can you look at pending legislation?

[00:54:14] Speaker 01:
Yes.

[00:54:16] Speaker 02:
If we assume that there was a legitimate legislative process stated in the memo from the chairman, what would then be your argument about the problems with the subpoena?

[00:54:27] Speaker 04:
That the underlying legislation that's being pursued is, well, so they've stated that they have a legislative purpose.

[00:54:36] Speaker 04:
check that off the list, and then you'd have to assume, just make sure I'm underfitting correctly, that that is actually the real object.

[00:54:43] Speaker 04:
So let's assume both of those.

[00:54:46] Speaker 04:
So then the second question is, is the underlying legislation that they're pointing to constitutionally valid?

[00:54:51] Speaker 04:
And then third, that there's actually a connection between the two.

[00:54:54] Speaker 04:
That there's a pertinency to the request.

[00:54:57] Speaker 04:
And the Congress clears all three of those barriers

[00:55:00] Speaker 04:
and there's no clear statement rule, and there's no constitutional avoidance, they would.

[00:55:05] Speaker 02:
Well, say more about that last prompt, because we've talked a lot about the first two, right?

[00:55:09] Speaker 02:
Why is there no connection here, in your view, between the subpoena and the legislative purpose?

[00:55:14] Speaker 04:
So, I think you could pick each rationale for its own, because the committee offers several.

[00:55:20] Speaker 04:
Start with the fourth.

[00:55:22] Speaker 04:
So, these records, let's start with communications, notes, and engagement letters.

[00:55:28] Speaker 04:
in the subpoena request.

[00:55:29] Speaker 04:
There's no pertinency there between those and whether the financial disclosures are accurate.

[00:55:34] Speaker 04:
Now, there's a definite pertinency.

[00:55:35] Speaker 05:
Take your point about engagement.

[00:55:37] Speaker 05:
Not communications and notes.

[00:55:41] Speaker 05:
I mean, those sound like... We don't know what they say.

[00:55:42] Speaker 05:
If Congress thinks that the President was inflating or deflating his assets, wouldn't it want to look at his communications with his auditing firm?

[00:55:52] Speaker 04:
Not if it was about legislation.

[00:55:53] Speaker 04:
If there were a special counsel or grand jury, they might.

[00:55:56] Speaker 05:
No, Congress is attempting to determine whether the disclosure laws are adequate.

[00:56:02] Speaker 05:
And one issue here is, are they adequate to capture the real value of liabilities and assets, given the testimony that perhaps these have been inflated?

[00:56:15] Speaker 04:
And I think you've hit the nail on the head, Judge Tatel.

[00:56:17] Speaker 04:
If Congress's decision whether to strengthen the laws turns on whether a particular individual violated them, that is exactly what Congress has not permitted

[00:56:26] Speaker 04:
That is exactly the line that you're trying to follow.

[00:56:29] Speaker 01:
What about whether an office in the United States government is violating it?

[00:56:33] Speaker 04:
That's not an argument that's been presented here.

[00:56:36] Speaker 01:
The idea that this is a conviction is- Whether an office in the United States government is violating it.

[00:56:41] Speaker 01:
Is that okay?

[00:56:42] Speaker 01:
You keep talking about a particular individual.

[00:56:44] Speaker 01:
I'm asking whether it's being violated by an office in the United States government.

[00:56:48] Speaker 04:
You mean other than the office of the president?

[00:56:49] Speaker 01:
I'm not saying which office.

[00:56:51] Speaker 01:
I'm saying whether, if they phrase it not as I'm going after an individual,

[00:56:56] Speaker 01:
But we're the Oversight Committee.

[00:56:58] Speaker 01:
There's an office within the government, an executive branch office.

[00:57:02] Speaker 01:
And we want to see if that executive branch office is complying with the law.

[00:57:07] Speaker 01:
So we know whether to strengthen it or not.

[00:57:10] Speaker 04:
If Congress did that, it'd be a different case.

[00:57:15] Speaker 04:
And yes, in any case.

[00:57:16] Speaker 01:
We keep talking about targeting an individual, but the individual is also an office, an executive branch office.

[00:57:22] Speaker 04:
The Office of the President is not part of the executive

[00:57:24] Speaker 04:
branch in any conventional sense.

[00:57:27] Speaker 01:
In the conventional sense of the head of the executive branch.

[00:57:29] Speaker 01:
I don't know what you mean.

[00:57:31] Speaker 01:
I mean, it's not an APA agency.

[00:57:32] Speaker 01:
I can do that.

[00:57:33] Speaker 01:
But I don't understand what you're asking.

[00:57:35] Speaker 01:
You're saying?

[00:57:36] Speaker 04:
Statutes that apply to offices, departments, and agencies do not apply to the president.

[00:57:40] Speaker 01:
No, I'm not asking about a statute.

[00:57:42] Speaker 01:
I'm saying they say we want to investigate corruption in an office of the United States.

[00:57:47] Speaker 01:
You keep talking like it's like they've picked some individual off the street somewhere to target.

[00:57:51] Speaker 01:
But they're investigating how an office of the United States government

[00:57:54] Speaker 01:
It's working, that sounds okay to me.

[00:57:57] Speaker 04:
Not if it's the Office of the President.

[00:57:59] Speaker 01:
One other thing I wanted to follow up on is, can Congress undertake investigations to expose corruption?

[00:58:10] Speaker 01:
Or is that law enforcement?

[00:58:11] Speaker 04:
With respect to agencies and departments, it can.

[00:58:13] Speaker 04:
With respect to the Office of the President, it cannot.

[00:58:17] Speaker 01:
When you keep saying they can't cross over and do law enforcement, I thought that was more categorical.

[00:58:23] Speaker 01:
They couldn't do it.

[00:58:24] Speaker 01:
as to anybody.

[00:58:26] Speaker 01:
Are you saying, is that right or not?

[00:58:27] Speaker 04:
They get a much more generous run.

[00:58:29] Speaker 04:
They could eventually cause more.

[00:58:30] Speaker 01:
They can engage in law enforcement investigations as to everybody but the president?

[00:58:34] Speaker 04:
They can engage in oversight of mismanagement.

[00:58:37] Speaker 04:
And I'm going to ask you a question directly.

[00:58:39] Speaker 04:
They can engage in mismanagement.

[00:58:40] Speaker 01:
Let's use my phrase, please.

[00:58:42] Speaker 01:
Expose corruption.

[00:58:44] Speaker 04:
Yes, because they created the agency.

[00:58:46] Speaker 04:
And they regulate.

[00:58:47] Speaker 01:
But they can't, they have no authority to probe, undertake a probe to expose corruption.

[00:58:53] Speaker 01:
in the office of the presidency.

[00:58:59] Speaker 05:
I'll go back to something you said a few minutes ago, which I actually found a little stunning.

[00:59:04] Speaker 05:
Suppose Congress is worried about whether Facebook and other major social media are in violation of the antitrust laws.

[00:59:22] Speaker 05:
Suppose Congress wants to know whether the antitrust laws are adequate to deal with Facebook and Twitter and the other companies.

[00:59:28] Speaker 05:
Are you telling me that Congress could not have a hearing about that if its only witness is Facebook and its only question is whether Facebook is complying with the antitrust laws?

[00:59:42] Speaker 05:
Is that what you're saying?

[00:59:46] Speaker 04:
So I'm going to answer the question directly, but Congress will hear it because I'm thinking it wants.

[00:59:50] Speaker 04:
People can show up.

[00:59:51] Speaker 04:
And I haven't checked, but I would wager that 99 times out of 100, these companies are voluntarily appearing before Congress.

[01:00:01] Speaker 04:
OK, but that's not an answer to my question.

[01:00:03] Speaker 05:
Going back to your point, it can't be, right?

[01:00:06] Speaker 05:
You weren't saying that.

[01:00:07] Speaker 05:
But if the Congress is interested in whether financial disclosures are adequate,

[01:00:13] Speaker 05:
for people who are covered by it, including the president, wouldn't they want to look at the president's financial disclosure forms?

[01:00:20] Speaker 05:
Why is that irrelevant?

[01:00:22] Speaker 05:
I get your point about engagement letters.

[01:00:25] Speaker 05:
I understand that.

[01:00:26] Speaker 05:
But I still want to see why if Congress is interested in determining whether the financial disclosure laws are adequate.

[01:00:38] Speaker 05:
I take your point that maybe that's all ruse, but if I don't think it is.

[01:00:45] Speaker 04:
I think what the Senate Select Committee case would say, and it's on a slightly different issue, but I think it speaks to this, is that when they target one person, you should be worried that it is a ruse.

[01:00:56] Speaker 04:
If Congress was asking the last five presidents for their records, and just like, take healthcare law.

[01:01:03] Speaker 04:
If Congress says, we want to study the healthcare industry,

[01:01:05] Speaker 04:
And they say, well, we want to know what the average American was doing.

[01:01:08] Speaker 04:
I mean, they pick 200,000 Americans' health care record down and ask for it.

[01:01:13] Speaker 04:
That's one thing.

[01:01:14] Speaker 04:
If they say, you, Mr. Smith, we heard that you might have had a Medicaid issue or a reimbursement issue.

[01:01:20] Speaker 04:
We want your stuff.

[01:01:22] Speaker 01:
Those are private people.

[01:01:24] Speaker 01:
We're talking about here.

[01:01:26] Speaker 01:
Is there ability?

[01:01:28] Speaker 01:
And certainly, if they can do it for private people, we can do it for government officials.

[01:01:32] Speaker 01:
for whose salary, whose salaries they're passing and whose salaries are paid by the people of the United States.

[01:01:38] Speaker 01:
So I don't think it's fair to equate the office of the president with Mrs. Smith walking down the street.

[01:01:46] Speaker 04:
I think the president gets at least as much protection as some... At least as a private individual?

[01:01:51] Speaker 01:
How about maybe when you become the president, it just happens that you're gonna be in some to's and fro's with the other political branch?

[01:01:58] Speaker 04:
With respect to our Supreme Court justice.

[01:02:01] Speaker 04:
Same answer.

[01:02:02] Speaker 01:
So I think it is a hard question.

[01:02:06] Speaker 01:
The question is whether there's any power to look at anything to expose corruption, to make wise judgments about the appropriation of funds.

[01:02:21] Speaker 01:
And I think I heard you say that when it comes to the president, unlike individuals, unlike anybody else in the government,

[01:02:30] Speaker 01:
Congress can get no information and can't ask questions, ask the President.

[01:02:38] Speaker 01:
They can't expose corruption, they can't check to see whether anything's being executed properly or whether taxpayer funds are being wasted on too expensive furniture.

[01:02:50] Speaker 04:
Many Congresses have been frustrated by court rulings that fence off the presidency and treat it differently, whether it's to treat them as an agency, whether it's the PCA... One thing to require a clear statement is another thing, as I'm taking your theory here, is he's absolutely immune from any oversight until the next election.

[01:03:11] Speaker 01:
And then if they're in a second term, absolutely immune from any

[01:03:15] Speaker 01:
oversight whatsoever.

[01:03:16] Speaker 01:
Is that right?

[01:03:17] Speaker 04:
Is that right?

[01:03:19] Speaker 01:
Okay, what could Congress do?

[01:03:21] Speaker 04:
Okay, what else?

[01:03:25] Speaker 04:
That's it.

[01:03:26] Speaker 04:
I don't want to litany, I'd like another example.

[01:03:35] Speaker 04:
No, no, surely you must have a theory of what can be done.

[01:03:40] Speaker 01:
You want us to adopt a rule, and so you must have a theory of where that rule starts and where it ends.

[01:03:45] Speaker 01:
And so what I'm asking you is when one other thing they could do to exercise any form of oversight over, what do you want to call it, the president or the office of the president?

[01:03:55] Speaker 04:
Appropriations.

[01:03:56] Speaker 01:
Well, I've already, you've resisted that.

[01:03:58] Speaker 04:
No, no.

[01:03:59] Speaker 04:
Salary.

[01:04:00] Speaker 04:
The power of the purse.

[01:04:01] Speaker 01:
And by the way, the salary can't be changed once they're in office, so that's not going to affect a president, a sitting president.

[01:04:06] Speaker 04:
With respect, I do not think I am breaking the ground today to suggest that in fights between the president and Congress, it is almost always going to be a political remedy between the branches that solves it and not a judicial case about Congress.

[01:04:19] Speaker 01:
But you have an argument of political question here.

[01:04:22] Speaker 04:
No, I'm trying to explain why I don't think the parade of horrors exists.

[01:04:30] Speaker 05:
We took you way over your time.

[01:04:34] Speaker 05:
We will give you some of it back as a rebuttal.

[01:04:38] Speaker 05:
Mr. Litter.

[01:04:48] Speaker 07:
May it please the Court, Douglas Sletter, the General Counsel of the United States House of Representatives.

[01:04:54] Speaker 07:
Indulge me for a moment with me here today, Deputy General Counsel Todd Tatelman, Associate General Counsel Megan Barbaro, and Associate General Counsel Jody Morse.

[01:05:06] Speaker 07:
My intent is, the Court has asked my friend Mr. Konsevoy a number of very probing and interesting questions, and I intend to march through them also.

[01:05:17] Speaker 07:
I did want to just start out by saying I don't get to say this very often, but this is one of those instances when the district court's opinion is an extremely strong brief for affirmance here, especially when combined with the Supreme Court's decision in agreeing, which as such made a recognized answers a lot of the arguments that Mr. Concevoy has made.

[01:05:42] Speaker 05:
Well, suppose I don't think the district court got the standard of review right.

[01:05:46] Speaker 05:
Suppose I thought that the district court's statement that we owe some deference to Congress here is wrong, because those come from cases where the president is not a party.

[01:05:59] Speaker 05:
Here we have a dispute between two equal coordinate branches of government.

[01:06:06] Speaker 05:
And why would we, if the district court did, give any deference to Congress at all in that?

[01:06:12] Speaker 05:
objectively as a court to determine whether Congress is in fact pursuing the legitimate legislative objective.

[01:06:20] Speaker 07:
Because, Your Honor, I don't think you would change, the standard that the Supreme Court has set in any number of cases does not change just because the subpoena here is directed to me.

[01:06:31] Speaker 05:
All the cases, all the cases, all of the cases that articulate the deferential standard

[01:06:40] Speaker 05:
are cases which don't involve two coordinate branches of government, and here you have two.

[01:06:46] Speaker 05:
I just don't understand why we would adopt that differential standard.

[01:06:52] Speaker 05:
I mean, you might win under a more searching standard, but I don't understand why we would adopt the standard.

[01:07:00] Speaker 05:
You quoted the district court standard in the brief, and that jumped out at me as I read it.

[01:07:05] Speaker 05:
I just don't see why.

[01:07:08] Speaker 05:
when you have the President on one side and the Congress on the other, we would defer to one over the other.

[01:07:13] Speaker 07:
Your Honor, we would win under whatever standard, regional standard, you apply.

[01:07:22] Speaker 07:
You offer me that option.

[01:07:23] Speaker 07:
But the reason here is your power vis-a-vis Congress has been, the Supreme Court has made clear, is restricted.

[01:07:35] Speaker 07:
And there's a very practical reason for that in part.

[01:07:38] Speaker 07:
Which is, remember, your power to question Congress is limited by the Constitution itself, the speech or debate clause.

[01:07:48] Speaker 05:
No, I don't mean to interrupt you, but I guess I do.

[01:07:53] Speaker 05:
The question, those are all in cases where you don't have Congress versus the President, right?

[01:07:59] Speaker 05:
They are.

[01:08:00] Speaker 05:
I don't know of a case where that principle has been articulated in that situation.

[01:08:05] Speaker 05:
So I just would like you to respond

[01:08:07] Speaker 05:
to my question, which is why would we grant that deep level of deference to Congress when what you have here is a separation of powers case.

[01:08:19] Speaker 05:
The President on one side and the Congress on the other.

[01:08:23] Speaker 05:
That's all I'm asking.

[01:08:25] Speaker 07:
As I start to answer, Your Honor, this feature debate clause means no matter who is on the other side of a V, and as we know here the V is major on the other side,

[01:08:35] Speaker 07:
You can't, the members of Congress cannot be questioned for speech or debate function, their functions as legislators.

[01:08:45] Speaker 05:
So are you saying there's no review here at all?

[01:08:48] Speaker 07:
No.

[01:08:48] Speaker 07:
No, Your Honor.

[01:08:49] Speaker 07:
What we are saying is, however, it is quite limited and it doesn't matter whether the president is on the other side.

[01:08:57] Speaker 07:
In addition, Your Honor.

[01:08:58] Speaker 05:
You keep saying that, but you disagree with my statement.

[01:09:02] Speaker 05:
every case that, in none of the cases that have articulated the deferential standard, has involved a separation of powers, as they say it is, the President versus the Congress.

[01:09:13] Speaker 07:
I think that is correct.

[01:09:15] Speaker 07:
I'm not aware of any cases, but if I may... Can I follow up on... Go ahead.

[01:09:22] Speaker 01:
I find it difficult about this case, whether to fit into that scenario or not,

[01:09:28] Speaker 01:
is that, the complaint is Donald J. Trump.

[01:09:33] Speaker 01:
And is he here as president, or is he here in the same way Bill Clinton was in Clinton versus Jones?

[01:09:41] Speaker 01:
Because the subpoena is not to him, it's to Mazars.

[01:09:46] Speaker 01:
And part of the subpoena, most of the subpoena, covers years, even if assuming he is presidency January 2017 onward,

[01:09:56] Speaker 01:
A lot of this covers years when he wasn't the president.

[01:10:00] Speaker 01:
On the other hand, he is the president now.

[01:10:02] Speaker 01:
So I'm not even quite sure which box it goes in or whether it goes in and out of the box.

[01:10:08] Speaker 01:
So in what capacity is he here as a plaintiff?

[01:10:11] Speaker 07:
Your Honor, I am going to answer your question.

[01:10:13] Speaker 07:
May I give one complete my answer to Judge Shager, please?

[01:10:17] Speaker 07:
Thank you.

[01:10:18] Speaker 07:
Judge Tate will also remember, as some of the court's questions have revealed, one of the key points that we're making here is this is not just some sort of dispute between the president and Congress.

[01:10:33] Speaker 07:
Congress here is looking at all sorts of legislative possibilities, some of which might have not involved the president at all.

[01:10:42] Speaker 07:
And that point cannot be emphasized enough.

[01:10:47] Speaker 07:
Mr. Constable, he wants to make it seem like all we're talking about here is if Congress is now going to pass legislation that is going to be directed at the President.

[01:10:57] Speaker 07:
That is totally wrong.

[01:11:00] Speaker 07:
And therefore, we don't think that this is some major conflict between the branches.

[01:11:08] Speaker 07:
There may be statutes that Congress would pass that might involve separation of powers concerns.

[01:11:14] Speaker 07:
And then those would have to be looked at.

[01:11:17] Speaker 07:
But at this stage of the case, that's not what is involved here at all.

[01:11:21] Speaker 07:
So I think that's a key point.

[01:11:22] Speaker 05:
Let me just pursue it.

[01:11:23] Speaker 05:
I think Judge Millett asked Mr. Constable the same question.

[01:11:27] Speaker 05:
Maybe this is what you're getting at.

[01:11:29] Speaker 05:
Are you suggesting that somehow the standards we would apply here are different because the subpoena is directed to nasers and not directly to the president?

[01:11:38] Speaker 05:
Does that make a difference in how we think about this case?

[01:11:41] Speaker 07:
I don't think so, Your Honor.

[01:11:42] Speaker 05:
I didn't think you were saying that.

[01:11:44] Speaker 07:
And so, but what I'm saying is the difference is, as you saw, so much of Mr. Constable's argument is about what Congress might do with this information.

[01:11:55] Speaker 07:
And he's saying they might.

[01:11:57] Speaker 07:
Actually, I think he's saying they're going to pass unconstitutional legislation.

[01:12:02] Speaker 07:
And so you need to stop that at this stage.

[01:12:05] Speaker 07:
What I'm saying is that there are all sorts of possibilities of legislation that Congress might come up with that do not in any way involve separation of powers.

[01:12:14] Speaker 07:
Judge Mallette, here it does seem to me, Mr. Constable is correct, the President is the President and what we are looking at here, some of the things we're looking at here, some of it is conduct before he was the President, no doubt, but a significant amount of this, what Congress is looking into is, for instance, his financial disclosure form as President.

[01:12:39] Speaker 07:
Now it's also... It's also as candidate.

[01:12:42] Speaker 07:
Correct.

[01:12:43] Speaker 07:
So that's why part of it.

[01:12:45] Speaker 01:
So I'm wondering what happens with presumptions and things then.

[01:12:47] Speaker 01:
Right.

[01:12:48] Speaker 07:
So part of it involves before, part of it involves while he has been president, and part of what Congress is looking into will involve the presidency.

[01:13:02] Speaker 07:
So I'm not going to resist that I think you do have to look at this in terms of these are the records of the president.

[01:13:10] Speaker 01:
And I'm sorry.

[01:13:12] Speaker 07:
Now you could also say, I suppose, since many of the records that are being sought are records before he was the president, and so I think that also does have to be taken into account that this isn't just about- What I'm trying to figure out is how do I take it into account?

[01:13:32] Speaker 01:
Do I turn it on and off, or do we just,

[01:13:36] Speaker 01:
The greatest common denominator is there's a president in there somewhere?

[01:13:41] Speaker 07:
You can't ignore that this is the president.

[01:13:45] Speaker 07:
And so one of the arguments Mr. Consoy tried to make, I don't think it's a good one, he tried to say, well, if Congress is doing things to interfere with the president's ability to carry out his job,

[01:13:57] Speaker 07:
Maybe that would have some sort of, this court would have to have some sort of special concern.

[01:14:02] Speaker 05:
Well, is that true?

[01:14:04] Speaker 05:
Isn't he right about that?

[01:14:05] Speaker 05:
If, in fact, he's right, that this would, in fact, limit the president's ability to perform his Article II responsibilities, we would have to take that into account, wouldn't we?

[01:14:14] Speaker 07:
Yes, you would.

[01:14:15] Speaker 07:
Yes, you would.

[01:14:16] Speaker 05:
So the only question, then, is whether these statutes, whether anything Congress is considering here falls into that category, right?

[01:14:22] Speaker 01:
I'm sorry, should I hand over to your predicate on that?

[01:14:24] Speaker 01:
Sure.

[01:14:25] Speaker 01:
Does it take the interview with the president in the same way when it's directed to a third party?

[01:14:31] Speaker 01:
No, it absolutely does not, because... And it's not our... The Supreme Court has said there's no account in client privilege, so there's no recognized law of privilege that's being asserted here.

[01:14:44] Speaker 01:
And so... And the notion that I get the concerns here, on the other hand, presidents could have given... A president could hand over, here's my diary,

[01:14:54] Speaker 01:
from the last 20 years, I'm giving it to you as a friend, and if someone subpoenaed that, you go, wait a minute, that's information about me that I gave to you, and I'm the president.

[01:15:06] Speaker 01:
That seems to be very different.

[01:15:07] Speaker 01:
I'm worried about this ignoring the fact that it's at a third party.

[01:15:12] Speaker 01:
Doesn't mean I'm ignoring the other presidential interest in it, but you can't say just because a president gives

[01:15:17] Speaker 01:
unprotected or loses protection when handed to a third party that we can't touch it because it came from the President, especially before he was President.

[01:15:25] Speaker 07:
I think all I can do here is agree with you, Judge Miller.

[01:15:29] Speaker 01:
But then you said, no, we have to do this like it's all presidential.

[01:15:31] Speaker 01:
I'm very confused.

[01:15:32] Speaker 05:
When you answered my question, you answered it didn't make a difference, but now it sounds like you think it does make a difference, that this is against

[01:15:39] Speaker 07:
Oh, I'm sorry.

[01:15:41] Speaker 07:
I thought that was the answer I gave.

[01:15:42] Speaker 07:
I thought it was a Greek.

[01:15:43] Speaker 05:
You said it made no difference that we should treat this the same.

[01:15:46] Speaker 01:
I thought for him you were... Okay.

[01:15:48] Speaker 01:
I thought for him you were saying it's my president.

[01:15:50] Speaker 05:
Are you going to go with the line answer or the tail answer?

[01:15:54] Speaker 07:
I'm going to answer Judge Rahm now and see how that turns out.

[01:15:59] Speaker 07:
I'm sorry.

[01:16:00] Speaker 07:
I think I misunderstood the question.

[01:16:02] Speaker 07:
OK.

[01:16:02] Speaker 07:
So if I can't just say it.

[01:16:03] Speaker 05:
Fair enough.

[01:16:04] Speaker 05:
That's OK.

[01:16:04] Speaker 07:
Does it matter that this is a subpoena to a third party?

[01:16:08] Speaker 07:
Yes.

[01:16:08] Speaker 07:
I thought I answered Judge Rahm.

[01:16:09] Speaker 07:
Yes.

[01:16:10] Speaker 07:
It matters that it's to a third party.

[01:16:12] Speaker 07:
It's not to the president.

[01:16:14] Speaker 07:
And therefore, even in Clinton versus Jones, where it did evolve the president directly, the Supreme Court, I'm suddenly

[01:16:22] Speaker 07:
I was part of the brief for the presidency, by the way, the Justice Department was there, and we lost.

[01:16:28] Speaker 07:
But even there, the court said, fine, you can go forward.

[01:16:30] Speaker 07:
But here, this would have very little impact at all on how the president carries out his functions.

[01:16:37] Speaker 07:
So yes.

[01:16:39] Speaker 07:
However, I think all I'm saying is, and maybe I'm mishearing or misunderstanding your questions, is you can't ignore the fact

[01:16:48] Speaker 07:
that what is being asked for here do involve records of the president, even though they are primarily records from before he was the president.

[01:17:01] Speaker 01:
It's not just records of the president.

[01:17:03] Speaker 01:
It's records that the president gave to a third party.

[01:17:05] Speaker 07:
Exactly.

[01:17:06] Speaker 01:
In which he has no privilege.

[01:17:08] Speaker 07:
I 100% agree with you there.

[01:17:12] Speaker 01:
One question, this is something- It might be different if it was a doctor or attorney client.

[01:17:16] Speaker 07:
That would be very different.

[01:17:16] Speaker 07:
You're exactly right, Judge Mullen.

[01:17:18] Speaker 07:
This is something where the Supreme Court has said, this is like banking records, I suppose, which we know is not protected, for instance, by the Fourth Amendment.

[01:17:29] Speaker 01:
And no accountant client.

[01:17:30] Speaker 07:
And it's not even here.

[01:17:31] Speaker 07:
These records are not banking records.

[01:17:32] Speaker 07:
So in the Deutsche Bank case, we've got up in New York, at least there, Mr. Constable and Mr. Strawbridge have an argument that there is

[01:17:40] Speaker 07:
the Right Defendant to Privacy Act is a statutory matter.

[01:17:43] Speaker 07:
We don't even have that here.

[01:17:44] Speaker 02:
Mr. Water, what about the Nixon versus GSA case, which recognizes some privacy interests of the President in his financial papers?

[01:17:52] Speaker 07:
Yes, there's definitely some privacy interests.

[01:17:55] Speaker 07:
As we know, Mr. Conselboy says that the Presidential Records Act is constitutional.

[01:18:02] Speaker 07:
I'm very pleased to hear that, because as we know, before that,

[01:18:06] Speaker 07:
Presidents completely owned their documents, and in fact, made presidents very sadly destroyed their records.

[01:18:12] Speaker 07:
Congress came in in the wake of Watergate and said, we're not doing that anymore.

[01:18:17] Speaker 07:
So that's an instance when Congress has very significantly regulated the president in carrying out his functions.

[01:18:25] Speaker 02:
The Presidential Records Act doesn't cover his personal financial accounting papers.

[01:18:30] Speaker 07:
But it could, depending upon how much it ties in with his official functions, yes.

[01:18:35] Speaker 07:
You're right.

[01:18:36] Speaker 07:
If he writes a letter to his daughter saying, I hope you do well in college, under the Presidential Records Act, that's not covered.

[01:18:45] Speaker 07:
But as we know, any number of things that he does that tie in with, for instance, if he is saying to his aides, I'm going to lie on my financial disclosure forms.

[01:18:57] Speaker 07:
And I want you all to back me up on this and, in fact, help me do it.

[01:19:00] Speaker 07:
That clearly is covered by the Presidential Records Act.

[01:19:04] Speaker 07:
I just want to get that out there.

[01:19:07] Speaker 07:
If one of the things... I'm sorry.

[01:19:11] Speaker 01:
So where does this leave us on whether there's presumptions or not?

[01:19:16] Speaker 01:
Because if you said it's different but we can't ignore, I'm just not sure what that legal test is when we go to write an opinion to say it's different but we can't ignore.

[01:19:26] Speaker 01:
What does that mean practically to how we

[01:19:29] Speaker 01:
analyze the subpoena.

[01:19:31] Speaker 07:
In this case, Your Honor, I think practically it matters not at all.

[01:19:35] Speaker 07:
That what we have shown here is obviously a legitimate legislative purpose.

[01:19:41] Speaker 07:
There could be other cases where it would matter that it was the President.

[01:19:46] Speaker 07:
In this case, it does not matter at all as a practical matter.

[01:19:51] Speaker 05:
And what do you do with Mr. Constable's argument about constitutional avoidance, that there are

[01:19:57] Speaker 05:
serious constitutional doubts or questions about the type of legislation Congress is considering?

[01:20:04] Speaker 07:
There aren't.

[01:20:05] Speaker 05:
There aren't.

[01:20:05] Speaker 05:
There are absolutely not.

[01:20:06] Speaker 05:
So do we have to decide that?

[01:20:07] Speaker 05:
So how do we do that?

[01:20:09] Speaker 05:
So he says the Ethics in Government Act is unconstitutional.

[01:20:13] Speaker 05:
Do we have to declare it constitutional to be able to rule for the House?

[01:20:18] Speaker 07:
No, you don't, Your Honor.

[01:20:19] Speaker 07:
No, we do.

[01:20:21] Speaker 07:
I think it's serious constitutional questions are to be avoided.

[01:20:26] Speaker 07:
I don't believe that it is a serious constitutional question that the Ethics in Government Act requiring disclosure is unconstitutional.

[01:20:33] Speaker 05:
What about the conflict of interest requirements?

[01:20:36] Speaker 05:
If Congress wants to strengthen... I get your point about the disclosure part, but what about the conflict of interest requirements?

[01:20:45] Speaker 07:
Isn't that one serious?

[01:20:47] Speaker 07:
No.

[01:20:49] Speaker 07:
use that as a springboard to something that's key.

[01:20:51] Speaker 07:
And I know your honors asked some questions about this, and I want to tie this down.

[01:20:56] Speaker 07:
For example, the lease here, one of the things that is being looked into by this committee is the lease with GSA for the old post office hotel.

[01:21:06] Speaker 07:
The lease says it prohibits the, am I going to get this right, the lessor or the lessee, it prohibits a government official from

[01:21:19] Speaker 07:
doing business with GSA.

[01:21:21] Speaker 07:
So does that legitimately apply to the President?

[01:21:23] Speaker 07:
We think yes.

[01:21:24] Speaker 05:
But why do you, why does the committee need documents from MASORs to answer that question?

[01:21:29] Speaker 05:
Can't it just get it all from GSA?

[01:21:32] Speaker 05:
What does it need from MASORs?

[01:21:33] Speaker 07:
No, because we don't, GSA wouldn't necessarily have the financial statements, et cetera.

[01:21:39] Speaker 07:
We need to find out.

[01:21:40] Speaker 05:
What financial, wait, I'm sorry.

[01:21:42] Speaker 05:
What would MASORs have in its files that relate to the GSA lease?

[01:21:49] Speaker 05:
Wouldn't everything need to be in the GSA's files?

[01:21:51] Speaker 07:
No, a couple of things, Your Honor.

[01:21:53] Speaker 07:
One, and remember, I want to make sure, I'm going to come back to this, too, but we need to talk about a Monuments Clause, which we'll talk about in a moment.

[01:22:01] Speaker 06:
Well, I have a question about that, too.

[01:22:03] Speaker 07:
Good.

[01:22:04] Speaker 07:
I've got it in my notes with a big star by it, so I want to talk about that.

[01:22:09] Speaker 07:
For example, we need to know, in applying for the lease, was the information that was provided accurate?

[01:22:19] Speaker 07:
GSA probably doesn't have any information to go to that.

[01:22:23] Speaker 07:
Mazers would.

[01:22:24] Speaker 07:
As we know, there is evidence that's been provided.

[01:22:27] Speaker 07:
I know Mr. Concevoy says provided by a convicted liar.

[01:22:31] Speaker 07:
It's nevertheless evidence that everybody has to be concerned about that Mr. Trump plays with financial statements depending upon what he's doing.

[01:22:41] Speaker 07:
He's been doing that.

[01:22:42] Speaker 07:
So we need to know from Mazers

[01:22:44] Speaker 07:
we hope we can get a better window into what is the actual situation.

[01:22:49] Speaker 07:
Two is what's happening.

[01:22:52] Speaker 01:
Before you go to actual situation, as to what?

[01:22:54] Speaker 01:
Can you finish that sentence?

[01:22:56] Speaker 07:
As to what the financial situation actually is, is what he is saying when he applies for that lease.

[01:23:03] Speaker 01:
To the post office lease.

[01:23:04] Speaker 07:
Correct.

[01:23:05] Speaker 01:
All post office lease.

[01:23:06] Speaker 07:
And second, we need to know what is Mr. Trump's relationship with the business entity that is

[01:23:15] Speaker 07:
signing the lease.

[01:23:17] Speaker 07:
GSA might or might not have that information.

[01:23:23] Speaker 01:
So if it doesn't, then Congress would pass a law requiring it in the future.

[01:23:27] Speaker 01:
Get that information in the future.

[01:23:28] Speaker 01:
That would certainly be something that Congress could do.

[01:23:30] Speaker 02:
Mr. Water, before we even get to that question, whether that's a legitimate inquiry, don't we have to, under the Supreme Court's precedence, have to have some indication from the House that they've authorized the committee here to take this action?

[01:23:42] Speaker 02:
I mean, in Watkins,

[01:23:43] Speaker 02:
The court says pretty clearly it's important not to separate responsibility for the use of investigative power and the actual exercise of that power.

[01:23:52] Speaker 02:
So what evidence is there here that the House has in fact given the committee the authority to investigate the President?

[01:24:00] Speaker 07:
And to answer that, I need to say one thing first.

[01:24:04] Speaker 07:
Mr. Concevo spoke a number of times he used the word statutory, and I don't understand that.

[01:24:10] Speaker 07:
This has nothing to do with statutory power.

[01:24:12] Speaker 07:
Well, it has to do with the rules.

[01:24:12] Speaker 07:
Yeah, I think he meant, yeah, this has absolutely nothing to do with Congress's statutory power.

[01:24:19] Speaker 07:
So as long as we all understand that.

[01:24:22] Speaker 07:
So what we know is from the rules, and we've discussed them here, the Oversight Committee is a special committee.

[01:24:32] Speaker 07:
By its rules, Congress has given the Oversight Committee the entire power of the House.

[01:24:40] Speaker 07:
I may have said Congress a moment ago.

[01:24:42] Speaker 07:
The House has given the Oversight Committee the entire powers of the House, the investigatory powers, into oversight matters.

[01:24:51] Speaker 07:
That is there in the rules.

[01:24:54] Speaker 07:
So Mr. Consovoy answered very early on that Congress could investigate

[01:25:02] Speaker 07:
the President.

[01:25:03] Speaker 02:
Can you point to any historical examples where Congress has investigated the President or subpoenaed the President without a full vote of either the House or Senate?

[01:25:14] Speaker 07:
Or a resolution?

[01:25:17] Speaker 07:
I don't have all the time.

[01:25:20] Speaker 02:
I have the, obviously... A single example where a House of Congress has investigated the President without a full vote of the House or Senate?

[01:25:30] Speaker 07:
Well, remember

[01:25:31] Speaker 07:
Yes, I have to give you an example.

[01:25:34] Speaker 07:
For example, my understanding of during the Civil War, there was a committee to investigate the conduct of the war.

[01:25:41] Speaker 07:
And not surprisingly, one of the things it was investigating was how President Lincoln- There was no subpoena issued to the President.

[01:25:50] Speaker 02:
I don't- Was there any call for the papers of the President in that investigation?

[01:25:54] Speaker 02:
And wasn't that done by the full House?

[01:25:57] Speaker 07:
No, I believe it was a committee of the House.

[01:25:59] Speaker 07:
And remember,

[01:26:01] Speaker 07:
The House has changed considerably.

[01:26:03] Speaker 07:
The House now largely operates by committees, and that is the Congress.

[01:26:10] Speaker 02:
The House has set that up, so its committees do investigations, its committees issue... But even in the cases where a committee issues such a subpoena, the committee has been specifically authorized by the House or Senate.

[01:26:21] Speaker 02:
Can you provide any example where a committee has issued a subpoena?

[01:26:25] Speaker 02:
for the president's papers or records, where they have now been specifically authorized to do so from the House or Senate as a whole?

[01:26:33] Speaker 07:
I don't know of any right now.

[01:26:35] Speaker 07:
I know that my deputy, Mr. Cahill, needs to think about this.

[01:26:37] Speaker 02:
So then would you say that this is unprecedented then?

[01:26:42] Speaker 07:
Well, remember, Mr. Krospratik, we didn't issue this subpoena to the president.

[01:26:46] Speaker 07:
We issued this subpoena to Mazers.

[01:26:48] Speaker 02:
For the president's papers?

[01:26:50] Speaker 07:
Correct.

[01:26:50] Speaker 07:
Correct, but it's not a subpoena to the president.

[01:26:53] Speaker 02:
Well, but can you just avoid subpoenaing the president by subpoenaing his accountants?

[01:26:59] Speaker 07:
Yes, that is different.

[01:27:00] Speaker 07:
That is quite different.

[01:27:02] Speaker 01:
Are they the president's papers when they're given to the accountants, if there's no legal privilege in them?

[01:27:06] Speaker 07:
Yeah, actually, when they were given to the accountants, the main thing we're looking for are private citizen Trump giving papers to his accountants under no privileges.

[01:27:18] Speaker 02:
And yet, Mr. Concevoy, I think- To investigate wrongdoing of the president as the president, right?

[01:27:24] Speaker 02:
The things that are alleged in the brief are violations of the Ethics in Government Act, violations of the Immolumens Clause, as president.

[01:27:33] Speaker 02:
You can't violate those things if you are a private citizen.

[01:27:36] Speaker 07:
And we're also looking into whenever it was done in order to get the GSA lease, which was before he was president.

[01:27:44] Speaker 01:
And financial disclosures during candidacy.

[01:27:46] Speaker 07:
Correct.

[01:27:47] Speaker 07:
So it covers both Judge Rao.

[01:27:50] Speaker 07:
And again, coming back to, I don't think I've ever, I don't think we've ever encountered before an argument that Congress cannot do oversight investigation of what the executive branch, which often many times is going to mean things that the President is directing.

[01:28:10] Speaker 07:
As we know, anything that's important

[01:28:13] Speaker 07:
a cabinet member is going to be consulted with the White House.

[01:28:17] Speaker 02:
But you can't provide a single example where a committee has exercised this type of compulsory process against the president historically.

[01:28:25] Speaker 02:
So doesn't that at least, at a minimum, raise a serious constitutional question about whether that's permissible?

[01:28:30] Speaker 07:
It does not, Your Honor, because the main reason we don't have it.

[01:28:34] Speaker 07:
And by the way, Judge Maeda cited President Buchanan complaining that Congress was investigating him.

[01:28:41] Speaker 07:
But it doesn't, Your Honor, because remember,

[01:28:43] Speaker 07:
This president has done something that has not been done before because he has said, I'm not disclosing things and I'm not setting aside my business operations.

[01:28:56] Speaker 07:
He's done in a very limited amount that has not been done before.

[01:29:00] Speaker 07:
He put himself in this position and we can't forget that.

[01:29:05] Speaker 02:
How does that action though empower Congress or a committee of Congress?

[01:29:10] Speaker 02:
to then issue compulsory process against the president.

[01:29:15] Speaker 07:
Your question, you started out, you said it right.

[01:29:18] Speaker 07:
How does it authorize the House?

[01:29:21] Speaker 07:
Remember here, this committee operates with the full power of the House.

[01:29:26] Speaker 07:
So any time we're thinking about this, we have to think of

[01:29:30] Speaker 07:
We have to say, could the House have done this?

[01:29:33] Speaker 02:
Is there any limitation on that?

[01:29:34] Speaker 02:
I'm sorry?

[01:29:35] Speaker 02:
Is there any limitation on the ability of the House to delegate its power to a single committee?

[01:29:40] Speaker 07:
Absolutely not, Your Honor.

[01:29:41] Speaker 02:
Could they just delegate to a committee the ability to vote on legislation?

[01:29:45] Speaker 02:
Can they delegate the full authority of the House to a committee?

[01:29:49] Speaker 07:
What the House can do is it sets its own rules.

[01:29:53] Speaker 07:
And as you know, the Supreme Court has said, in the Nixon case, that's Judge Walter Nixon, not President Nixon.

[01:30:00] Speaker 07:
has said, we can't examine with the House or the Senate what they do with their own rules.

[01:30:07] Speaker 07:
Now, I don't know if there was something where the House said, we're delegating all of our power to that one member.

[01:30:15] Speaker 07:
That might be unconstitutional.

[01:30:17] Speaker 07:
Whether that would be something this court could look at, I don't know.

[01:30:20] Speaker 07:
Obviously here, there is no question whatsoever, and no court could review

[01:30:25] Speaker 07:
the fact that the House has decided many decades ago to switch to a system where it wouldn't operate the House as a whole, it would operate by committees.

[01:30:36] Speaker 07:
And indeed, in today's world... For its investigative role, you mean?

[01:30:39] Speaker 07:
Correct.

[01:30:40] Speaker 05:
Let me see if we can't get some control of this issue here.

[01:30:48] Speaker 05:
As I understood our discussion with Mr. Concevoy and reading the briefs, I think

[01:30:55] Speaker 05:
the briefs, and Mr. Constable, we all agree that if we were just looking at the rules, that the rules are broad enough to authorize a subpoena against the president.

[01:31:07] Speaker 05:
His argument is that in this case, we have to apply a much more searching principle to it, either because it's the president, clear statement, or because of constitutional orders.

[01:31:22] Speaker 05:
Why don't you address that?

[01:31:24] Speaker 05:
Because, well, let me ask you this before you address it.

[01:31:27] Speaker 05:
Do you think, if we think there is a clear statement requirement, that these rules meet that?

[01:31:34] Speaker 07:
Yes.

[01:31:35] Speaker 07:
Why?

[01:31:36] Speaker 07:
Because we have to understand the clear constitutional power of the House to investigate from day one

[01:31:46] Speaker 07:
is absolutely clear, and obviously.

[01:31:49] Speaker 05:
But nothing in the rules authorizes a subpoena to the president or for the president's personal materials.

[01:31:54] Speaker 05:
That's his argument.

[01:31:56] Speaker 05:
And you say you can read these rules to allow that?

[01:32:00] Speaker 07:
If the clear statement rule means, and I assume I'm next going to be able to get to why it doesn't apply here.

[01:32:06] Speaker 05:
Yeah, that's my next question.

[01:32:07] Speaker 07:
Good.

[01:32:08] Speaker 07:
Excellent.

[01:32:09] Speaker 05:
You can even start there if you want.

[01:32:10] Speaker 07:
But if the clear statement rule means before the House can issue a subpoena,

[01:32:15] Speaker 07:
to a private entity.

[01:32:17] Speaker 05:
No, no, no.

[01:32:17] Speaker 05:
Just the President of the United States.

[01:32:19] Speaker 07:
I'm getting there.

[01:32:21] Speaker 07:
Let's make it this case.

[01:32:23] Speaker 07:
Before the House can issue a subpoena to a private entity to get records both that preceded the presidency and covers the presidency, the House must say that as soon as, no, we don't have that here.

[01:32:38] Speaker 07:
But no such thing is required.

[01:32:40] Speaker 05:
Tell us why.

[01:32:41] Speaker 07:
Because the clear statement rule, no case that Mr. Concevoy cited involves, and this is why he kept saying statutory, they don't involve the House doing investigations.

[01:32:56] Speaker 07:
One of the main reasons is my understanding why the courts have, for instance this court in Armstrong, has set up a clear statement rule is when legislation, a bill is passed and it's going to regulate the President,

[01:33:10] Speaker 07:
The president's constitutional powers is, by the way, what this court has said.

[01:33:15] Speaker 07:
The president has to have a warning, because the president gets to decide, do I want to veto that legislation?

[01:33:22] Speaker 07:
So the clear statement rule serves an extremely important purpose of allowing the president to say, whoa, wait a minute, you're applying this to me?

[01:33:32] Speaker 07:
Suppose the FOIA or something like that.

[01:33:35] Speaker 07:
You can't do a sneak attack on the president.

[01:33:38] Speaker 07:
But this has nothing to do with that.

[01:33:40] Speaker 07:
As we know, the House has been investigating presidents for ages.

[01:33:46] Speaker 07:
And there is nothing that requires a clear statement rule for the House to now say, we're going to investigate the president.

[01:33:53] Speaker 07:
Because, for example, there's no clear statement rule in the impeachment clause, right, or the unimpeachment inquiry.

[01:34:00] Speaker 05:
Well, that job's taken care of by the Constitution.

[01:34:03] Speaker 07:
Correct, but my point is we're not aware of any clear statement rule that would apply to the House carrying out its oversight and investigatory budget.

[01:34:15] Speaker 05:
This is not an impeachment inquiry.

[01:34:19] Speaker 07:
We are not here relying on impeachment power.

[01:34:21] Speaker 07:
I was making just a limited point, Your Honor, that a clear statement rule applies to quite

[01:34:31] Speaker 07:
correctly and makes a lot of sense for legislation.

[01:34:35] Speaker 07:
It does not apply for situations like this where the House, pursuant to its rule-making authority granted by the Constitution that the Supreme Court has said is extremely broad, indeed is as broad as the House's power to legislate.

[01:34:51] Speaker 07:
Let's not forget that.

[01:34:53] Speaker 02:
Doesn't this Court's opinion in Tubin provide exactly that kind of clear statement rule for the House rules?

[01:35:00] Speaker 07:
No, Your Honor, Tobin.

[01:35:02] Speaker 07:
Right.

[01:35:03] Speaker 07:
Tobin is where the, first of all, it was a criminal contempt.

[01:35:08] Speaker 07:
But second, it was where the court said, the court noted, Congress had said its purpose was to look into amending the interstate compact, an interstate compact.

[01:35:23] Speaker 07:
So there, the court said, that's a tough question, constitutional question, so we're going to avoid it.

[01:35:30] Speaker 07:
We don't have anything anywhere near close to that because, if I could get to, remember the kinds of things that the Congress can do here.

[01:35:38] Speaker 07:
Congress could, for example, decide the ethics, Office of Government Ethics needs more money.

[01:35:48] Speaker 07:
It needs removal protection.

[01:35:51] Speaker 05:
It needs to have... Well, there are some people who think that's a very tricky constitutional question, including

[01:35:57] Speaker 05:
at one point this court.

[01:35:58] Speaker 07:
It's not a tricky constitutional question as to whether the office of government of ethics should have a lot more money and a lot more investigators.

[01:36:07] Speaker 05:
I was only talking about your last point, the removal power.

[01:36:10] Speaker 07:
The removal power, so maybe that would be some sort of issue.

[01:36:15] Speaker 07:
In addition, Congress could pass legislation involving GSA.

[01:36:18] Speaker 05:
Okay, so just once again, what's your response to Judge Rao about why this case is not controlled by TOTA?

[01:36:25] Speaker 07:
Because, as I said, Tobin was a very specific factual situation.

[01:36:32] Speaker 07:
Congress said... Right, that's true of all cases.

[01:36:36] Speaker 07:
Perfect.

[01:36:37] Speaker 07:
Perfect.

[01:36:38] Speaker 07:
Tobin is easily distinguishable.

[01:36:40] Speaker 07:
And I could say, because it begins with a T and it doesn't.

[01:36:43] Speaker 05:
Because even Mr. Bonzovoi said this case is controlled by Tobin.

[01:36:47] Speaker 05:
Why isn't it?

[01:36:48] Speaker 07:
For the reason I just said, the fact... We'll say it again.

[01:36:52] Speaker 05:
Okay.

[01:36:52] Speaker 07:
Tobin, Congress said,

[01:36:54] Speaker 07:
the investigating committee said, we want these materials because we want to decide whether to amend an interstate compact that had been approved.

[01:37:07] Speaker 07:
This court said, that's a difficult constitutional question.

[01:37:10] Speaker 07:
Here, you don't have any statement of purpose from the oversight committee saying, what we're thinking about is adding another condition to the presidency.

[01:37:24] Speaker 07:
You have no such thing.

[01:37:26] Speaker 07:
And that's why this is clearly, at this phase, what Mr. Concevoy is asking you to do is clearly inappropriate because there are all sorts of things.

[01:37:35] Speaker 07:
And Judge Muller asked about this.

[01:37:38] Speaker 07:
I think Mr. Concevoy said, well, Tobin is the one that sets a different standard from legislation that might be had.

[01:37:48] Speaker 07:
Well, that comes from a grain.

[01:37:49] Speaker 07:
That's a Supreme Court statement, so we don't really care what Tobin says about that, do we?

[01:37:53] Speaker 01:
I just have a procedural question here because we've been struggling with this clear statement and how it applies in this sort of arguably hybrid, maybe non-hybrid area.

[01:38:04] Speaker 01:
This was not an argument that was raised in district court.

[01:38:08] Speaker 01:
It's not in your red brief at all because it was not in there other than a passing

[01:38:13] Speaker 01:
reference.

[01:38:14] Speaker 01:
There's none of the citations and development of a clear statement argument in our opening briefs.

[01:38:19] Speaker 01:
So we don't even have a briefing from you on this issue, but I haven't heard you mention forfeiture.

[01:38:25] Speaker 07:
Your Honor.

[01:38:26] Speaker 01:
Or can it be forfeiture?

[01:38:28] Speaker 07:
My understanding is I don't think they ever use the word clear statement in the district court.

[01:38:33] Speaker 07:
And so if this court wants to say that this

[01:38:36] Speaker 07:
argument was not preserved.

[01:38:38] Speaker 07:
Obviously, we don't have any problem with that, and we didn't respond.

[01:38:41] Speaker 01:
So that's a different question.

[01:38:43] Speaker 01:
What is your opinion?

[01:38:44] Speaker 01:
Because you guys have been much more plugged in through the district court stage.

[01:38:48] Speaker 01:
I'm just trying to figure out.

[01:38:49] Speaker 01:
I didn't see it in the trial court, and they only had the most glancing argument about this in their opening brief.

[01:38:58] Speaker 01:
I was trying to figure out why you didn't have a heading.

[01:39:01] Speaker 01:
glancing or not that matched it was, did you not understand the argument we see in the reply brief as being impressed in the other briefs?

[01:39:07] Speaker 07:
Well, yes.

[01:39:08] Speaker 07:
Obviously, we didn't get a sub-reply brief.

[01:39:10] Speaker 07:
So this had primarily been developed in their reply brief here before this Court.

[01:39:15] Speaker 05:
They do argue in their blue briefs.

[01:39:17] Speaker 05:
I'm sorry?

[01:39:17] Speaker 05:
They do invoke the clear state rule in their blue briefs.

[01:39:20] Speaker 07:
Yes.

[01:39:21] Speaker 07:
And so one possibility would have been to say that that argument was not preserved.

[01:39:28] Speaker 07:
I want to consult my co-counsel for just one moment, if you're honored.

[01:39:33] Speaker 07:
Go ahead.

[01:39:42] Speaker 07:
The thing I want to say is, I don't believe they said clear statement, but in their reply brief in district court, I think they mentioned this concept.

[01:39:50] Speaker 07:
But in any event.

[01:39:52] Speaker 01:
They just said clear statement, and most of it's about executive office versus office of the president.

[01:39:58] Speaker 01:
clear statement rule applies to statutes that significantly alter the balance between Congress and the President, and that's it.

[01:40:07] Speaker 01:
I'm not sure.

[01:40:10] Speaker 01:
I thought if you all thought that argument was there, you would have addressed it in your brief.

[01:40:17] Speaker 07:
address what we think of the serious arguments.

[01:40:19] Speaker 07:
We thought this clear statement rule was not clearly stated, and I believe it is quite obviously wrong.

[01:40:28] Speaker 07:
Again, the cases that Mr. Consovoy relies on have nothing to do with the situation here.

[01:40:35] Speaker 02:
Mr. Letters, on the topic of forfeiture, could you also address the arguments that were raised in the reply brief about that the committee forfeited the GSA animal humans clause issue?

[01:40:46] Speaker 07:
Your Honor, I'm actually glad that you raised that because it is, I'm sorry to say this, it is absolutely and completely factually wrong.

[01:40:58] Speaker 07:
I don't know why they said this.

[01:41:03] Speaker 02:
Well, if you could address their arguments.

[01:41:05] Speaker 02:
I'm sorry?

[01:41:06] Speaker 02:
If you could address their arguments.

[01:41:07] Speaker 07:
I can do that.

[01:41:08] Speaker 07:
If your Honor would prefer, we can file something that sets out the exact pages, et cetera, where we made

[01:41:15] Speaker 07:
arguments in the district court on this.

[01:41:18] Speaker 07:
Otherwise, if you want, I can do it now.

[01:41:21] Speaker 07:
I can do it either way, whatever you prefer.

[01:41:24] Speaker 02:
Briefly.

[01:41:25] Speaker 07:
Okay.

[01:41:27] Speaker 01:
I'll take a letter too.

[01:41:28] Speaker 07:
Thank you.

[01:41:29] Speaker 07:
We said our explanation of the committee's investigation, we said our opposition brief in the district court, so that's document number 20 at pages three and four,

[01:41:43] Speaker 07:
We described the committee's investigation as, and I won't read the whole quote, but it talks about the committee was looking into conflicts of interest, constitutional violations, continuing interest, financial interests, et cetera, under a lease, and ongoing management of that lease.

[01:42:04] Speaker 07:
At page 14 there, we said it involves serious constitutional questions and legitimate concerns about government ethics.

[01:42:10] Speaker 07:
The constitutional questions were the emoluments clause questions in JA 269.

[01:42:17] Speaker 07:
The district court, the district court obviously totally understood we were making these points.

[01:42:22] Speaker 07:
District court says, quote, the committee also says that the records will assist in monitoring the president's compliance with the foreign emoluments clause, unquote.

[01:42:31] Speaker 07:
So obviously, the district court understood it.

[01:42:33] Speaker 07:
I could go on.

[01:42:34] Speaker 07:
I will do so in a letter.

[01:42:36] Speaker 07:
Again, I have no idea why they

[01:42:39] Speaker 07:
thought that this was waived.

[01:42:42] Speaker 07:
In addition, it obviously is not waived because as you well know, an appellee can support a judgment, as long as you are supporting the judgment, on any ground that is not asking to expand the record.

[01:42:58] Speaker 07:
There's no need to expand the record here at all.

[01:43:01] Speaker 07:
We are making legal arguments, et cetera.

[01:43:03] Speaker 07:
So even if we had not addressed this in this court, which we did,

[01:43:08] Speaker 07:
Mr. Kotsavoy should know that we can raise it anyway, and this Court can affirm on those grounds.

[01:43:14] Speaker 05:
I'm curious.

[01:43:14] Speaker 05:
I want to ask you the same question I asked Mr. Kotsavoy about this.

[01:43:19] Speaker 05:
Setting aside the emolument question and the GSA lease and all that, do you think this subpoena can be sustained just on the basis of Congressman Cummings' fourth reason, that is, looking into the reporting of assets to the Office of Government Ethics?

[01:43:38] Speaker 05:
Can this?

[01:43:39] Speaker 07:
Yes, Your Honor, we do think that.

[01:43:40] Speaker 05:
In other words, if we thought that was adequate.

[01:43:44] Speaker 07:
Did you say adequate?

[01:43:46] Speaker 05:
Yeah.

[01:43:47] Speaker 05:
In other words, if we thought the subpoena was justified with respect to that, do we need to look at the other three at all?

[01:43:53] Speaker 07:
You don't need to.

[01:43:56] Speaker 07:
As far as we're concerned, they fully support.

[01:43:59] Speaker 07:
They give further support.

[01:44:00] Speaker 07:
For example, if I could, the emoluments clause

[01:44:05] Speaker 05:
Well, I was asking you whether we have to get into the volumes close at all.

[01:44:09] Speaker 07:
You do not have to.

[01:44:10] Speaker 07:
It so heavily supports our argument.

[01:44:14] Speaker 05:
Well, what about Mr. Kostner's argument that the scope of the subpoena exceeds even this fourth requirement?

[01:44:22] Speaker 05:
Like, for example, he mentions the engagement letters.

[01:44:26] Speaker 05:
How are those possibly?

[01:44:27] Speaker 07:
The engagement letters are very important, Your Honor, because we need to know if we're going to get the material that Mazers has,

[01:44:36] Speaker 07:
It comes down to garbage in, garbage out.

[01:44:39] Speaker 07:
We need to know when Mazers was engaged, what powers or responsibilities, et cetera, does Mazers have?

[01:44:49] Speaker 07:
Are they supposed to just, whatever Mr. Trump gives them, they are to take as a given and deal with?

[01:44:57] Speaker 07:
Or are they supposed to question back?

[01:45:01] Speaker 07:
And if Mr. Trump is going to rely on what Mazers

[01:45:06] Speaker 07:
says, somewhere does it have to be said expressly, and we were prohibited from asking questions back.

[01:45:15] Speaker 07:
So you need to know, what were the terms under which Mazers was engaged?

[01:45:19] Speaker 07:
Because otherwise, you don't know what the product that Mazers is putting out, whether that is any legitimacy or not.

[01:45:27] Speaker 07:
If I may, Your Honor, on the emoluments clause, a couple of things.

[01:45:32] Speaker 07:
This is something where Congress can regulate the president.

[01:45:35] Speaker 07:
It's right there in the Constitution because it says the president, Congress can give consent to a monument.

[01:45:44] Speaker 07:
So obviously it's something that Congress would legitimately want to think about and look into.

[01:45:49] Speaker 07:
And it doesn't say it can give consent only when asked by the president.

[01:45:53] Speaker 07:
So Congress, the House needs to say, hmm,

[01:45:58] Speaker 07:
Even if all of this happened, even if Mr. Trump is getting foreign emoluments, that's OK with us.

[01:46:05] Speaker 07:
And indeed, Congress has legislated on what are emoluments and what aren't.

[01:46:14] Speaker 07:
And indeed, there are legislative proposals about that very thing.

[01:46:19] Speaker 07:
So clearly, this is something that constitutionally-based Congress can think about.

[01:46:25] Speaker 01:
And this gets me to one of my other... There are at least examples historically of them, I don't know whether you call it a conditional consent or whatever, where they would direct gifts and stuff that were received to particular locations in the government, give that to the State Department, give that to the Department of Interior.

[01:46:44] Speaker 01:
Is a theory there that that's a conditional consent?

[01:46:48] Speaker 07:
That could be, Your Honor, yes.

[01:46:50] Speaker 07:
The way Congress could set up legislation saying, first of all,

[01:46:55] Speaker 07:
Congress could try to define what is a foreign monument.

[01:47:00] Speaker 07:
And this, if I may, this gets to one of our most important points.

[01:47:05] Speaker 07:
Mr. Consovoy is asking you to rule on the constitutionality of legislation that not only has not been, some of it has not been passed, but we have no idea what it would be.

[01:47:18] Speaker 07:
If there is actually legislation, as you know,

[01:47:21] Speaker 07:
you pay deference to whatever Congress passes and whether, as you determine, is that constitutional?

[01:47:27] Speaker 05:
On whether it's constitutional?

[01:47:29] Speaker 07:
Of course you do.

[01:47:31] Speaker 07:
Yes, you do that all the time.

[01:47:32] Speaker 07:
You say, there's a presumption of constitutionality.

[01:47:35] Speaker 07:
And you are very interested.

[01:47:37] Speaker 07:
The Supreme Court has said a number of times, members of Congress take an oath to uphold the Constitution.

[01:47:42] Speaker 07:
And so you take into account what Congress has done.

[01:47:45] Speaker 07:
Now, you ultimately have the final say, clearly.

[01:47:49] Speaker 07:
But you give deference, and you're interested.

[01:47:52] Speaker 07:
Oh, Congress thought this was constitutional.

[01:47:54] Speaker 07:
I wonder why.

[01:47:55] Speaker 07:
Yeah, I agree with that.

[01:47:57] Speaker 07:
So here, if Congress wanted to pass legislation saying, here's what is an emolument, here's what isn't, but even if this is an emolument, it's okay if it's the following things, Congress obviously would want to find out what's going on, what emoluments are, possible emoluments are happening.

[01:48:17] Speaker 02:
Can you maybe draw a more precise line between those legislative purposes and the President's personal financial papers?

[01:48:26] Speaker 02:
Assuming that Congress has the powers to regulate in the areas that you just suggested, what is the line between specific

[01:48:35] Speaker 02:
financial records of a single president who's just one person covered by the Monuments Clause, although I know that's subject to some dispute in the academic literature.

[01:48:44] Speaker 02:
What's the connection between those things?

[01:48:46] Speaker 02:
Where does Congress need to know all of those specific facts?

[01:48:50] Speaker 07:
And the connection is especially with regard to the hotel.

[01:48:55] Speaker 07:
So what is Mr. Trump's actual relationship to the hotel?

[01:49:00] Speaker 07:
What is going on with the hotel?

[01:49:02] Speaker 07:
And what does Mr. Trump think that those are assets of his?

[01:49:05] Speaker 07:
Does he think they're not assets of his?

[01:49:08] Speaker 01:
Think that those, what is the those?

[01:49:10] Speaker 01:
The hotel or the income or?

[01:49:12] Speaker 07:
Right, I'm sorry.

[01:49:14] Speaker 07:
I jumped.

[01:49:15] Speaker 07:
If there are things, the hotel assets, are they assets of Mr. Trump's?

[01:49:20] Speaker 07:
And if the Saudis come in, this is all just hypothetical, the Saudis come in and they say, we want to rent the entire hotel for the year.

[01:49:30] Speaker 07:
and just name a price, whatever you name is fine with us.

[01:49:34] Speaker 07:
Is that an emolument?

[01:49:36] Speaker 07:
We need to know what money is coming in and how does it relate to Mr. Trump.

[01:49:43] Speaker 07:
And part of that may very well be if Mr. Trump is saying, one of my assets is the old post office hotel LLC and that's mine.

[01:49:55] Speaker 02:
But how would a statute address that problem?

[01:49:59] Speaker 02:
If Congress determined that the President was in violation or in contravention of the emoluments clause.

[01:50:06] Speaker 07:
So several possibilities.

[01:50:08] Speaker 07:
One is Congress could say we think that is or is not a foreign emolument.

[01:50:13] Speaker 07:
Two, Congress could decide is it okay for the President to do business with the government because remember the domestic emoluments clause provides pay for the President and not more.

[01:50:27] Speaker 07:
So if the president is doing business with the Defense Department, and let's say he owns a company that manufactures a Keith part for airplanes, and the Defense Department is purchasing those, and the president says, I'm not going to do what Mr. Trump is doing, I'm keeping by full ownership

[01:50:52] Speaker 07:
and knowledge about this company, that might be a violation of the domestic emoluments law.

[01:50:57] Speaker 07:
So we need to know what are Mr. Trump's relationships with these various companies, what emoluments are coming in, what is he claiming, because that could be very key.

[01:51:09] Speaker 02:
what might be termed something like a violation of the emoluments clause.

[01:51:12] Speaker 02:
So why would that not be something that's such, you know, a proper inquiry in an impeachment hearing or some other type of investigation?

[01:51:18] Speaker 02:
What is the legislative purpose for Congress to determine that there's been a past wrongdoing?

[01:51:25] Speaker 07:
Two things that I mentioned.

[01:51:28] Speaker 07:
One is

[01:51:29] Speaker 07:
Congress might want to try to define what is in a monument, because some of these issues are difficult.

[01:51:34] Speaker 07:
I think we know President Washington sold grain.

[01:51:37] Speaker 05:
Isn't there a statute that does that?

[01:51:41] Speaker 05:
I thought that the statute that requires disclosure of gifts was essentially

[01:51:47] Speaker 05:
Congress's response to the Emoluments Clause, isn't that what it is?

[01:51:50] Speaker 07:
So should that be amended?

[01:51:51] Speaker 07:
Should it be increased?

[01:51:53] Speaker 07:
Should it be lowered?

[01:51:55] Speaker 07:
President Trump obviously presents much more difficult issues.

[01:51:58] Speaker 07:
As I mentioned before, I don't believe any modern president has done what he has done.

[01:52:03] Speaker 07:
So the Emoluments Clause is much more important.

[01:52:07] Speaker 07:
And second, as I said, Congress could decide we really

[01:52:12] Speaker 07:
think Mr. Trump is doing a great job, and we don't want him worried by this monument stuff, so we hereby consent to all of the following things.

[01:52:22] Speaker 07:
Absolutely clear, I think Mr. Concevoy would admit, since that's right in the Constitution, that the Congress could do that.

[01:52:30] Speaker 07:
So clearly, these are things you would want to look into.

[01:52:38] Speaker 01:
I need a little bit of help tracing

[01:52:40] Speaker 01:
the time of this subpoena is covering.

[01:52:44] Speaker 01:
On the one hand, it raises the issue we talked about earlier about pre-presidential status.

[01:52:50] Speaker 01:
But to the extent you're talking about the emoluments clause, I don't think this applies to candidates.

[01:52:57] Speaker 01:
The conflicts of interest rules, that doesn't apply to candidates.

[01:53:00] Speaker 01:
That's only once you take office, correct?

[01:53:02] Speaker 07:
I think that's correct.

[01:53:03] Speaker 01:
So as to those, those only kick in.

[01:53:11] Speaker 01:
What legitimate interest in records do you have prior to January 2017?

[01:53:16] Speaker 01:
And then the GSA bid was turned in March 2011 and the contract release was granted June 2013.

[01:53:30] Speaker 01:
And then his candidacy required a disclosure back to January 1, 2014, I think.

[01:53:37] Speaker 01:
So at a minimum, you've got a gap between June 2013 and January 2014, where I don't understand where there's any interest, legislative interest, in getting these materials.

[01:53:49] Speaker 01:
And I may not even have all that right.

[01:53:51] Speaker 01:
Maybe Mr. Consular, you will correct me.

[01:53:53] Speaker 01:
How do you explain the financial disclosure interests over this whole time period?

[01:54:00] Speaker 07:
Pre-presidential.

[01:54:02] Speaker 01:
I'm all pre-presidential time here.

[01:54:03] Speaker 07:
Because when you have what obviously will be an extremely complicated financial picture.

[01:54:10] Speaker 07:
As we know, Mr. Trump has won, because he says he's got a lot of assets, and many, many business entities.

[01:54:18] Speaker 07:
And he has things like losses in some years that then get carried over to other years, maybe get written off in other years.

[01:54:27] Speaker 07:
Or do they suddenly disappear for no reason?

[01:54:30] Speaker 01:
He has losses that suddenly disappear in August of 2013.

[01:54:37] Speaker 01:
He's already got the GSA release at that point.

[01:54:41] Speaker 01:
He's not even covered yet by the presidential reporting period.

[01:54:47] Speaker 01:
What does it matter?

[01:54:48] Speaker 01:
What on earth is your legislative interest in his assets going up, down, disappearing, or whatever he does?

[01:54:54] Speaker 07:
Because, Judge, what if he has losses that show up in 2013, 14, 15, 16, 17?

[01:55:00] Speaker 01:
You're going to get up to 2013, and you're going to get 14 forward.

[01:55:03] Speaker 07:
Yes.

[01:55:04] Speaker 07:
And so what happens if it shows up a couple of years, then drops out, shows up again?

[01:55:10] Speaker 07:
Because remember what Mr. Cohen said is

[01:55:12] Speaker 07:
Mr. Trump plays with his own.

[01:55:14] Speaker 01:
How much spinning out do you get to do here?

[01:55:16] Speaker 01:
You have to show it's a time when we get to look at his finances and that there's a gap there that going well maybe something would have popped in and out that wouldn't be covered by 2011 to 20 mid 2013 and 2014 to 2019 but there's going to be something mysterious that happens in that six month period that won't show up anywhere else really?

[01:55:38] Speaker 07:
Or things may show up for a while.

[01:55:41] Speaker 07:
Do you want to see if they show up?

[01:55:42] Speaker 01:
You got a while.

[01:55:44] Speaker 01:
You got 2014 to 2019.

[01:55:45] Speaker 07:
No, I'm sorry.

[01:55:46] Speaker 07:
You want to know when did they start showing up, especially if we're dealing with complex things and real estate assets, et cetera.

[01:55:53] Speaker 07:
When did they start showing up?

[01:55:55] Speaker 07:
When did they stop?

[01:55:57] Speaker 01:
I guess you did 2011.

[01:55:58] Speaker 01:
I thought the rationale for 2011 is that was the least.

[01:56:01] Speaker 01:
But I don't know why under that theory they can't go back to when he was 18 or birth, for goodness sake.

[01:56:07] Speaker 07:
it probably would not be pertinent to go back that far, but somebody who has so much, who's, there's so complicated and losses going forward.

[01:56:22] Speaker 07:
And remember, Mr. Trump has said he's been under audit for years.

[01:56:26] Speaker 07:
So he himself recognizes that these are the kinds of things that can carry over from year to year.

[01:56:34] Speaker 07:
And here's a key thing.

[01:56:36] Speaker 07:
We need to know why they disappear, and that may show up in financial statements because we need to know, are there conflicts of interest?

[01:56:45] Speaker 07:
Is he maybe under the influence of a foreign government, a foreign state, a foreign company, et cetera?

[01:56:52] Speaker 07:
Why do things show up, not show up, et cetera?

[01:56:54] Speaker 07:
In addition, one more, can I get one more answer?

[01:56:59] Speaker 07:
The Supreme Court said quite clearly

[01:57:03] Speaker 07:
we get that sometimes congressional investigations run into blind alleys.

[01:57:08] Speaker 07:
And we need to be able to see if it's an alley that doesn't go anywhere.

[01:57:12] Speaker 07:
OK, we looked, but it didn't go anywhere.

[01:57:16] Speaker 07:
So that's why the investigative authority is so broad and why we don't have to show specificity.

[01:57:23] Speaker 01:
How far back could you go into this theory?

[01:57:26] Speaker 07:
Can we or did we?

[01:57:26] Speaker 07:
I'm sorry.

[01:57:27] Speaker 01:
No, I don't know how far you did.

[01:57:28] Speaker 01:
I want to know how far you could.

[01:57:30] Speaker 07:
I don't have an answer for that.

[01:57:32] Speaker 07:
That's a problem.

[01:57:34] Speaker 07:
I don't think so, Your Honor, because it would depend on... Did you agree to go back to when he started his first business?

[01:57:42] Speaker 07:
Very unlikely, Your Honor, but suppose

[01:57:45] Speaker 01:
I'm just trying to struggle with a rule here because you've connected them to specific things and that doesn't cover this full time period.

[01:57:54] Speaker 01:
It gets most of it.

[01:57:55] Speaker 07:
Your Honor, I think, as we know, we think pertinence is a very easy hurdle here for the House to overcome, but pertinence

[01:58:04] Speaker 07:
So for instance, I think in the Deutsche Bank argument, Judge Ramos asked me, you know, does this cover anything?

[01:58:11] Speaker 07:
If we were trying to get somebody's diary from when they were seven years old and they're now in their seventies, probably not.

[01:58:18] Speaker 07:
Now maybe you and I could come up with some hypothetical that says, you know, today, so-and-so stole from me and I'm never going to forget this and then many years later,

[01:58:31] Speaker 07:
that person gets killed, OK, you might say, ah, that's relevant.

[01:58:35] Speaker 07:
So I don't want to say never, but very unlikely.

[01:58:38] Speaker 01:
I know it's your job not to say, to never say never.

[01:58:42] Speaker 01:
OK, I'll say never.

[01:58:43] Speaker 07:
We would never seek the diary of a president of the United States.

[01:58:45] Speaker 07:
Well, I thought you were going to say you would never have any limits on this.

[01:58:48] Speaker 01:
I thought that was your job.

[01:58:49] Speaker 07:
No, I'm going to give you a limit.

[01:58:50] Speaker 07:
We will never seek the diary of a president from when she was seven years old.

[01:58:56] Speaker 07:
That's not helping me a whole lot here.

[01:58:57] Speaker 07:
You can bank on that.

[01:58:59] Speaker 02:
I have a question.

[01:59:04] Speaker 02:
The legislative purposes that you've articulated are various forms of regulation of the Office of the Presidency, and the subpoena seeks the financial records of the president.

[01:59:16] Speaker 02:
So I guess I'm wondering from the perspective of the committee, how does the committee account for the fact that this does involve

[01:59:23] Speaker 02:
you know, both the regulation and investigation of a co-equal department of the government.

[01:59:28] Speaker 02:
And are there any ways in which the committee should treat the president different from John Q. Public in relation to a subpoena?

[01:59:38] Speaker 07:
Okay.

[01:59:38] Speaker 07:
I think the first question you're asking is if it's investigation of another branch.

[01:59:44] Speaker 07:
Frankly, if anything

[01:59:47] Speaker 07:
the power is more, is greater when the Oversight Committee is investigating what the executive branch is doing than a private citizen, because the Oversight Committee- Not the executive branch, the president.

[01:59:58] Speaker 07:
Oh, I'm sorry, I thought your first question was about the government, I thought you said the government.

[02:00:03] Speaker 02:
The president of the United States.

[02:00:05] Speaker 02:
The legislation you're seeking in part is regulation of the president, maybe including other government officials, but it's about the presidency, it's about the financial papers of

[02:00:16] Speaker 02:
the sitting president, right?

[02:00:18] Speaker 07:
If that's the limit, yes.

[02:00:20] Speaker 07:
Again, as I think Judge Tatel's questions brought out with me earlier, we do not deny that in some universe it might be that Congress is using its powers abusively to prevent a president from being able to do anything to carry out his or her job.

[02:00:43] Speaker 07:
It might very well be that that would raise concerns that would reach separation of powers levels.

[02:00:51] Speaker 07:
We're nowhere near that here.

[02:00:53] Speaker 02:
Is that the only limitation?

[02:00:54] Speaker 02:
A subpoena that would directly infringe on his ability to exercise the powers of his own?

[02:01:00] Speaker 07:
Well, and then there's the president, as we know, can raise executive privilege or presidential communication privilege.

[02:01:07] Speaker 07:
Now, as you know, the Supreme Court has said that's not absolute.

[02:01:11] Speaker 07:
And so, for instance, in the Watergate case, it was required to turn over records that were very much tied in with the president.

[02:01:20] Speaker 02:
Yes, pursuant to a grand jury subpoena.

[02:01:22] Speaker 07:
That specifically was a grand jury subpoena, but there were also congressional investigations going on, and it was impeachment.

[02:01:29] Speaker 02:
And then the circuit denied release.

[02:01:32] Speaker 02:
you know, of the tapes to the Senate.

[02:01:34] Speaker 07:
And again, so what I'm saying is, there may be certain limits, there are certain circumstances in which presidential communications privilege would govern, but overwhelmingly, in our view, subpoenas to the President, as long as there's a legitimate legislative purpose, would govern.

[02:01:55] Speaker 07:
Yes, it's something that you would and should take into account in appropriate circumstances.

[02:02:01] Speaker 07:
Once more, we're nowhere near that.

[02:02:04] Speaker 02:
So is the president treated by a congressional committee any differently from a cabinet secretary or sub-cabinet secretary or any government official within the executive branch?

[02:02:14] Speaker 02:
Is the president the same as any government official?

[02:02:17] Speaker 07:
No, the president is obviously, look, the Supreme Court has said the president is unique.

[02:02:22] Speaker 02:
So how does the committee's treatment here account for that unique circumstance of subpoenaing the president?

[02:02:29] Speaker 07:
Well, the problem here is, as I said, remember this president has

[02:02:34] Speaker 07:
said basically to the American people, I'm going to make this hard for you because I'm not going to do what other presidents have done.

[02:02:41] Speaker 07:
I'm going to mix up my personal capacity and my business capacity, and I'm going to keep doing that even while I'm president.

[02:02:50] Speaker 02:
But alleging those facts, how does that impact what the authority of Congress is?

[02:02:55] Speaker 07:
Well, because as I said, at a certain point, you obviously need to do some sort of balancing.

[02:03:01] Speaker 07:
Clearly, at some point, you need to balance because it is the president.

[02:03:05] Speaker 07:
But again, I keep coming after, I'm sorry.

[02:03:08] Speaker 07:
This case is nowhere near what that possibly could be.

[02:03:11] Speaker 02:
But hasn't that balance been struck in both the Supreme Court precedents and the precedents of this court by at least ensuring that the full House of Congress has authorized the investigation of the president?

[02:03:21] Speaker 07:
No, absolutely.

[02:03:21] Speaker 02:
No, Your Honor.

[02:03:22] Speaker 02:
Because you haven't come up with an example yet where that's not happened, where the full House or Senate has not authorized a subpoena or investigation of the president.

[02:03:30] Speaker 07:
Well, the full House, in today's world, the full House never gets involved in subpoenas.

[02:03:37] Speaker 07:
Congress works differently now.

[02:03:39] Speaker 02:
No, but they often do still create a committee for a specific purpose to investigate a specific issue, and then that committee will issue a subpoena, but it's pursuant to a specific authorization.

[02:03:50] Speaker 07:
But again, that's not how the House works anymore.

[02:03:55] Speaker 07:
And remember, only the House gets to decide that.

[02:03:58] Speaker 07:
That's the Nixon case, Walter Nixon.

[02:04:01] Speaker 07:
The House gets to decide its own rules.

[02:04:03] Speaker 07:
And if the House wants to delegate certain investigatory power to a committee or a chair, the House gets to decide to do that.

[02:04:11] Speaker 07:
That's not a subject for this Court to get into.

[02:04:14] Speaker 07:
And in addition, I think we can throw the opposite.

[02:04:20] Speaker 07:
There's no case law saying that when a House committee is exercising its powers,

[02:04:27] Speaker 07:
that, ah, we're not sure about that.

[02:04:29] Speaker 07:
We're going to insist that the full House do it.

[02:04:31] Speaker 07:
There's no case that I'm aware of that says that for obvious reasons.

[02:04:36] Speaker 07:
It's not a subject for the courts.

[02:04:38] Speaker 07:
Once more, if I may just one more thing, because I actually handled the Nixon case.

[02:04:43] Speaker 07:
Judge Nixon was saying, the Senate has to sit as a jury for me, like a regular jury for impeachment purposes.

[02:04:52] Speaker 07:
So every one of them has to be in the jury box at all times and awake, et cetera.

[02:04:57] Speaker 07:
And the Supreme Court said, no, you don't.

[02:05:02] Speaker 02:
But in that case, there was specific authorization from the Senate as a whole to that committee to try the case and to gather evidence, right?

[02:05:09] Speaker 02:
It was a specific authorization from the full Senate.

[02:05:12] Speaker 02:
It wasn't under some generalized authority.

[02:05:14] Speaker 07:
But had the Senate said, and its parliamentarian agreed with, the Judiciary Committee can do this under its current authority, that would have been

[02:05:26] Speaker 07:
Just as valid, but let me make clear, again, this court, the Supreme Court says in Nixon, that is not a subject for you to examine.

[02:05:36] Speaker 07:
That's outside your lane completely.

[02:05:40] Speaker 07:
I know we're dragging on, but I have to address one thing.

[02:05:44] Speaker 07:
The law enforcement point, look, are there any number of things that Congress investigates that involve criminal activity?

[02:05:53] Speaker 07:
Congress did a massive investigation of 9-11.

[02:05:57] Speaker 07:
They did it at the exact same time that the criminal investigation was going on.

[02:06:02] Speaker 07:
Nobody would possibly have said, oh, gosh, at bottom this involves hijacking and mass murder, and therefore Congress cannot investigate.

[02:06:13] Speaker 07:
That's ludicrous.

[02:06:14] Speaker 07:
As we know from the Supreme Court decisions, Congress can investigate even if it means it's investigating what is criminal activity.

[02:06:23] Speaker 07:
But that's not a law enforcement function.

[02:06:25] Speaker 07:
A law enforcement function is

[02:06:27] Speaker 07:
you do an investigation, and then maybe bring a prosecution.

[02:06:32] Speaker 07:
Am I?

[02:06:32] Speaker 05:
Yeah.

[02:06:33] Speaker 05:
I just have two technical questions.

[02:06:36] Speaker 05:
Number one is, in your brief, you say that the Oversight Committee has jurisdiction over the Ethics in Government Act and the Office of Government Ethics.

[02:06:47] Speaker 05:
Does that come from?

[02:06:48] Speaker 05:
But there's no citations.

[02:06:49] Speaker 05:
Does that come from the rule?

[02:06:51] Speaker 05:
Or is that?

[02:06:52] Speaker 05:
Where does that come from?

[02:06:53] Speaker 07:
I believe that is.

[02:06:57] Speaker 05:
Is that rule, is that the generic rule?

[02:07:00] Speaker 05:
Is that 10 clause 1n?

[02:07:04] Speaker 07:
Yeah, it's in their rule 10 jurisdiction.

[02:07:06] Speaker 07:
If you look in the addendum to our brief, we reprinted the oversight.

[02:07:11] Speaker 05:
Because it doesn't mention the Ethics in Government Act, does it?

[02:07:15] Speaker 07:
No.

[02:07:16] Speaker 05:
So it's just generic.

[02:07:17] Speaker 05:
It's rule 10 clause 1n.

[02:07:20] Speaker 05:
Or is there something else?

[02:07:23] Speaker 07:
If Your Honor will give me one second.

[02:07:25] Speaker 07:
Sure.

[02:07:37] Speaker 07:
So it's great to have experts with you in court.

[02:07:41] Speaker 07:
That law goes through the Oversight Committee pursuant to a determination by the parliamentarian of the House that the Oversight Committee has jurisdiction over the Ethics in Government Act.

[02:07:57] Speaker 05:
Is that in the record?

[02:07:59] Speaker 05:
No.

[02:08:00] Speaker 05:
Would you submit it when you can, please?

[02:08:03] Speaker 05:
I didn't see it.

[02:08:04] Speaker 05:
Is it cited in your brief?

[02:08:14] Speaker 07:
What we can submit to you is material showing that in the past, the Oversight Committee has exercised jurisdiction over the Ethics in Government Act.

[02:08:26] Speaker 07:
Yes, we can do that.

[02:08:27] Speaker 05:
Okay, last question.

[02:08:31] Speaker 05:
What is the current status of the subpoena in the District Court?

[02:08:36] Speaker 05:
Last we knew, you as counsel to the House had agreed not to enforce it subject to this appeal, right?

[02:08:44] Speaker 05:
Subject to an expedited appeal.

[02:08:48] Speaker 05:
Is there anything else?

[02:08:49] Speaker 05:
Is that where things stand?

[02:08:51] Speaker 07:
Correct.

[02:08:51] Speaker 05:
There's no district court order on the matter.

[02:08:54] Speaker 05:
It's been suspended pursuant to an agreement between you and Mr. Constable.

[02:08:59] Speaker 07:
That is correct, Your Honor.

[02:08:59] Speaker 07:
The district court denied a state.

[02:09:02] Speaker 05:
Okay.

[02:09:03] Speaker 05:
Thank you.

[02:09:05] Speaker 05:
So Mr. Constable, we used up all your rebuttal time, so you can take three minutes.

[02:09:11] Speaker 04:
Okay.

[02:09:12] Speaker 04:
Brief.

[02:09:13] Speaker 04:
Very quickly.

[02:09:15] Speaker 04:
On the application of the statutory argument for making it to House Rules, Rumley and Colvin answered that question.

[02:09:21] Speaker 04:
Both apply the principles of avoidance that we've invoked here to House Rules.

[02:09:26] Speaker 04:
So it is the House Rules that matter.

[02:09:28] Speaker 04:
Judge Tatel, I think the committee has not done much to help the argument that the tie-in to the Ethics in Government Act provides the clear statement that the tie-in is we can point to you something that where we've done it before, there's nothing in the House Rules, but maybe the parliamentarian has said it's ours.

[02:09:45] Speaker 04:
If the committee thought it had the authority to get to the president, why did it just amend the rules to add including the executive office of the president, which doesn't reach the president?

[02:09:56] Speaker 04:
That would have been a meaningless amendment to the House rules in January of 2019.

[02:10:01] Speaker 04:
if they already had all the authority they thought they needed.

[02:10:04] Speaker 04:
Judge Rowdy, your point, in every example we found has always been the full House.

[02:10:09] Speaker 04:
The Senate Select Committee is a great example.

[02:10:11] Speaker 04:
That makes sense when the House or any body of Congress, whether it's the Senator of the House,

[02:10:17] Speaker 04:
is seeking to investigate the president, it's good that everybody buy in.

[02:10:20] Speaker 04:
That is why the clear statement will exist.

[02:10:22] Speaker 04:
It does not exist to put the president on notice.

[02:10:26] Speaker 04:
Take Gregory, for example, which is the leading clear statement rule case.

[02:10:29] Speaker 04:
That's about applying it to states.

[02:10:31] Speaker 04:
It's a federalism case.

[02:10:32] Speaker 05:
Do you think the clear statement could come from the House rule?

[02:10:37] Speaker 05:
It could.

[02:10:38] Speaker 04:
It could.

[02:10:39] Speaker 04:
I think better.

[02:10:40] Speaker 04:
Better be the full House.

[02:10:41] Speaker 05:
But it could come from the rule.

[02:10:42] Speaker 05:
Well, the House passes the rule, doesn't it?

[02:10:44] Speaker 04:
Right, if the whole house passes the rule and says the committee can do it, that is, I agree with my friend, it could do that.

[02:10:51] Speaker 04:
On the issue of the President's ability to make these arguments as President, Eastland answers this question, Judge Mallette, the President gets to stand in for the person who has been issued this subpoena as, this is footnote 14, as if the subpoena was issued to him.

[02:11:06] Speaker 01:
So we have to treat this case as if... Any documents that he's ever given to anybody at any time?

[02:11:12] Speaker 04:
To a third party custodian, yes.

[02:11:14] Speaker 04:
And privilege is not an issue.

[02:11:15] Speaker 04:
And this report has not said there is no such thing as a privilege.

[02:11:18] Speaker 04:
It has said there is no privilege under the federal rules of evidence.

[02:11:21] Speaker 04:
It did not preempt New York state or contractual privileges.

[02:11:24] Speaker 01:
So the New York courts have said as well there's no accounting privilege.

[02:11:27] Speaker 01:
I'm sorry?

[02:11:28] Speaker 01:
New York courts have said no accounting client privilege either.

[02:11:31] Speaker 04:
I think we've read it differently.

[02:11:33] Speaker 04:
I'm wrong, I'm wrong.

[02:11:34] Speaker 04:
But we've cited what we think is the existing rule that is still in force in effect.

[02:11:41] Speaker 04:
On the emoluments clause, I think it's a great example of an answer in search of a rationale for this whole case.

[02:11:48] Speaker 04:
So my friend spent a lot of time talking about the domestic emoluments clause.

[02:11:52] Speaker 04:
One problem, it doesn't include a consent clause.

[02:11:55] Speaker 04:
Only the foreign emoluments clause includes a consent clause.

[02:11:58] Speaker 04:
The committee doesn't know what legislation wants here.

[02:12:01] Speaker 04:
That every member of the House has sued the President for violating the emoluments clause as this Court is well aware.

[02:12:07] Speaker 04:
They have said they are intolerable conflicts of interest.

[02:12:11] Speaker 04:
The idea that a court searching for the real object would be, if I might just conclude, Judge Hill.

[02:12:17] Speaker 04:
And I would just step back from the line.

[02:12:19] Speaker 04:
The court's heard more than two hours of argument.

[02:12:21] Speaker 04:
There's a fundamental question here.

[02:12:22] Speaker 04:
Is this about finding wrongdoing or legislation?

[02:12:25] Speaker 04:
I don't think it's a hard call.

[02:12:28] Speaker 05:
Thank you.

[02:12:29] Speaker 05:
Thank you.

[02:12:29] Speaker 05:
Mr. Kasevoy, Mr. Lehrer, thank you both for your helpful arguments today.

[02:12:32] Speaker 05:
The case is submitted.

[02:12:34] Speaker ?:
Thank you.