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Case number 19-5142, Donald J. Trump et al., a balance, versus Mesores USA LLP and Committee on Oversight and Reform of the U.S.

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House of Representatives.

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Mr. Norris for the balance, Mr. Latter for the appellee.

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Mr. Norris is now unmuted.

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Good morning.

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Good morning, Your Honors.

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May it please the court.

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In April of 2019, when the oversight committee issued this subpoena to Mazars, it had an extraordinarily broad view of its own investigative authority.

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According to the committee, its power to subpoena the president's personal papers was co-extensive with its power to legislate.

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It did not have to give any reasons or explanation as to what legislative goals it was pursuing, and it had no duty

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to meaningfully narrow or tailor its requests.

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That view of its own authority is reflected in its subpoena, which is drafted in incredibly broad terms and is substantiated with little more than a vague sentence and a memo about legislation.

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But the committee's view of its own authority was rejected by the Supreme Court in this case, nine to nothing.

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The court announced a new test that substantially restricts Congress's power to subpoena the president's personal papers.

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And in response to that decision, the committee did not withdraw, narrow, or even reissue its subpoena.

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It instead attaches a 25,000 word memo to the back of its supplemental appellate brief and attempts to argue that this subpoena satisfies a standard that the committee never envisioned would apply to it.

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That strategy is unpersuasive, it's impermissible under the governing law, and it violates the appellate rules of civil procedure, the federal rules of appellate procedure.

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This court should reject it.

[00:02:02] Speaker 04:
Mr. Norris, the committee says in its supplementary brief that we can still rely only on the Cummings record to sustain the subpoena.

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And if that's the case, doesn't that moot your concerns about the Maloney memo?

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If this court limited its view to the Cummings memo alone, we still have our argument that the district court is better positioned to apply the Supreme Court's test in the first instance.

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But it does.

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And why is that since basically the four factors identify legal questions

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that we can ask and apply to the record.

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I understand your argument that you don't believe we could sustain the subpoena on the existing Cummings record, but setting that aside, if we thought we could, why would we need to remand the case?

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What additional backbiting would there be?

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It's just the court identified four questions, all identified to quote the court, and we can apply those.

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In fact, I think in the briefing, you say those are mainly legal.

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Those are legal questions.

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Two responses, Judge Stadle.

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First, even on pure questions of law, this court is a court of review, not a first view, and it benefits from a district court's application of a legal standard in sharpening the issues for appellate review.

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But more importantly, and secondly, we do not believe that all four factors are purely legal questions.

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I'll give you a few examples.

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The first is whether a subpoena to the president is reasonably necessary to accomplish the legislature's goals.

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That question involves questions such as what efforts has the committee made so far to obtain this information?

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Who else could it ask?

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Would those avenues be fruitful?

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Those are all questions of fact.

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In the Maloney memo in particular, the Cummings memo says nothing about those questions.

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The Maloney memo says quite a bit and quite a bit that's contested from us.

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We think that there's genuine.

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But let me add that.

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But I hear what you're saying about that, but the committee has said

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They have the burden of proof here.

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They have the burden to show that what they're seeking is reasonably necessary.

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They've told us that this record is sufficient.

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We can look at the record.

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If we don't agree with them, we would not enforce a subpoena.

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That would be the end of it.

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They would have failed to demonstrate that if the information they're seeking is reasonably necessary.

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I mean, I'll ask Mr. Letter the same question, but he does say

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He believes he can sustain this on the existing record.

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And if we don't agree, I don't see why we need to have more fact-finding.

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The burden is on him.

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The burden is on the committee.

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Understood, Your Honor.

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And I don't disagree with most of that.

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I do believe there are some contested facts here.

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Right.

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I'm sorry.

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Can you repeat that?

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No, I just said I didn't think you would disagree with it because, yeah.

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So then you agree that we could confine, in fact, there's nothing in the Supreme Court decision that suggests that we need a different record to decide this case.

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The court just identified four factors, told us to apply them.

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It was the dissent that suggested

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It couldn't survive on this record, but the court didn't say that.

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Right.

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There is nothing explicit in the Supreme Court's decision about the record.

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I do think there was

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I was gonna say, I do think there are some implicit signals from the Supreme Court.

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The Supreme Court said that the committee has to identify its legislative purposes with specificity and identify a particular legislative goal.

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And it said that vague and loosely worded explanations are insufficient.

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I do think that is quite a good description of the Cummings memo, which in the most conclusory sentence says that the committee is considering laws and other legislative proposals within our jurisdiction.

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after listing several plainly not legislative goals before that.

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It's quite vague and quite insufficient under the Supreme Court's test.

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And that is my main answer to this court's limiting itself to the Cummings memo, which we think is required under the federal rules of appellate procedure.

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The main response we have to that is that the committee cannot possibly win on the existing record.

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The Cummings memo does not sufficiently identify specific legislative goals.

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It does not provide the specificity that the Supreme Court said was required.

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There's no explanation in the current record as to what other efforts the committee has made to obtain this information.

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And Judge Taylor, you're correct.

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They do have the burden of proof on that question.

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And I would say they have plainly not satisfied it.

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There has never been a

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subpoena, let alone a document request for these particular documents that was never sent to us, to the Trump Organization.

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Never even been an attempt.

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The first request for these particular documents was sent around the Trump Organization to a neutral third party custodian.

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No attempt to subpoena us.

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And if they had attempted to subpoena us,

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I would direct the court to page 105 of the joint appendix.

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The committee has a process whereby if it subpoenas you directly, it has a requirement that it is agreed to to engage in accommodation efforts with you.

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Now that requirement, that accommodation process does not apply when the committee uses what it calls a friendly subpoena, which is a subpoena to a neutral third party custodian like Mazars.

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When it uses that process, it has no accommodation requirements.

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The committee has made some unrelated requests to, or loosely related requests to the Trump Organization and to other executive agencies.

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But if you look at those requests, which are directly to the holder and the real party in interest of the information,

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Those requests each time are much, much narrower than the request made to Mazars.

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And so I think that demonstrates that when the committee is forced or knows it has to go through the accommodation process, it self narrows its requests and intends to focus on exactly the information it needs instead of asking for everything under the sky like it does when it goes after neutral third parties.

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Can I ask Mr. Norris, I think he was starting to talk about

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aspects that you thought of the Maloney memorandum that were not purely legal, that had facts, or I think you meant that you would factually dispute.

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And you talked about their reasonably necessary standard.

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Was that it, or were there others?

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I just wanted to make sure I got your points on what you would consider to be factually, not legally, in dispute with respect to the Maloney memorandum.

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And Judge Mollett, I take your question to be what would be in dispute for purposes of summary judgment, which is okay.

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So the reasonably necessary prong has sort of several sub facts that we would dispute.

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We dispute their characterization of how accommodation efforts have gone so far.

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We dispute that they could not get productive information from us from a direct request to the Trump organization or to White House counsel.

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There are parts of the Maloney memo that say- What do you mean by that?

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You mean that, is it your position that had they made this request directly of the Trump organization, documentation would have been forthcoming that was not forthcoming from attorneys from the organization and from agencies

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under the control of the White House counsel and others, under the control of the president?

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I just wanna make sure I understand, is it your representation that documentation would have been forthcoming?

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Do you know what the request is?

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Or simply that they should have asked you first, you would have said no, and we would have been right back to square one.

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It's more of a mixed question, I would say, of fact and law and what I'm saying.

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I'm not asking for that label, I'm asking for your factual response to this position.

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Right.

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So there's been no, what do you mean by that statement?

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They should have asked us first.

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Well, procedural step or you're saying factually that something would have changed.

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Have they asked you first.

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Correct.

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So we have broad legal purpose-based challenges to this subpoena that we would still make.

[00:11:04] Speaker 05:
Of course.

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Of course.

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We still think this request would be illegal as directed to us.

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I'm not asking that question.

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Right.

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But if all those legality questions are set aside, we've been perfectly willing to negotiate in many of these cases and would do so here as well.

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OK.

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But your first response is you would have not responded because of your legal objections.

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we would have raised our same legal objections.

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But preserving those legal objections, there still could have been room for negotiation and compromise.

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I'm asking could.

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Of course, there could.

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I'm asking would.

[00:11:33] Speaker 02:
Your Honor, it's hard to know.

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There's been no request directed to us.

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I don't think that's hard to know.

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It's easy enough to talk to your clients and know, is it the concern here, really, that we're willing to work with you further than what the executive branch and its agencies and the attorneys

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for the organization have done in the past, that it would have been a more fruitful course, or is this more just a procedural objection?

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Our willingness to negotiate is genuine.

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I can't predict the way those negotiations would go, but we have a very good working relationship with Mr. Lutter.

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I have a lot of respect for him and have been able to come to compromises throughout this litigation.

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I can't, I don't have any authority.

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I don't compromise on any document disclosures, just, you mean on the procedures.

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for adjudicating this case.

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Correct.

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There, there have been no voluntary disclosures so far, but there haven't been much opportunity to do so.

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We have, we've had every opportunity and you could have volunteered and say, look, you do this all the time.

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You don't need a court to say, you guys go talk.

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You can, you could have initiated this process on your own if you thought it would be fruitful and said, look, let's call them.

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Mr. Letter or whoever in the house is the appropriate person and say, look, let's talk.

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We're happy to let's let's see if we can work something out here, but that hasn't been done.

[00:13:01] Speaker 02:
Your honor, there have been discussions.

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I'll admit they've been limited from my understanding.

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And the parties have fairly divergent views as this case has gone on to this point about what the law requires and who was likely to succeed on their various arguments.

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But respectfully, we prevailed in the Supreme Court.

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I do kind of think the ball is in the House's court in terms of helping narrow and confine the types of documents they're most interested in.

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In the parallel Second Circuit litigation, there was three subpoenas involved.

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The House withdrew one of them after the Supreme Court's decision, and it narrowed the remaining two.

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And there's been no similar efforts in this case.

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So I do believe... Well, there's... Okay, go ahead.

[00:13:49] Speaker 01:
No, no, go ahead, Patty.

[00:13:51] Speaker 05:
Well, I was just going to, because I distracted your, I really wanted to get your list of sort of things that you think are factual disputes, but I want to make sure Judge Rao gets to ask a great question too.

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I had the reasonable necessary under that umbrella, disputing the accommodation history.

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Is there more under that one or are there other prongs that you think are?

[00:14:10] Speaker 02:
I'm not, I'm not sure.

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I meant to say, I'm not sure I got it out that

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There are representations about what was produced by various executive agencies.

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One of those representations is that the committee reviewed several documents in camera and decided they were insufficient to satisfy its goals.

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No, what those documents actually said.

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And then there's what was that last thing you said without what there's no explanation of what those documents are or what they said or why they were insufficient.

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And so that's all cameras in camera.

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Are they allowed to describe the contents of in camera disclosures on the public record?

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Uh, perhaps not, your honor, but judge table is correct.

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They have the burden of grief here and that I'm just trying to get your objections.

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That one seems sure, but hard to do that as far as your burden by, by unilaterally declare that accommodation efforts were unsuccessful.

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Okay.

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Um, is that those, those are the two main facts disputes you would say.

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The other umbrella.

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I'm sorry, just with the Maloney memo I'm talking about.

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I think there's another umbrella of factual dispute.

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The Supreme Court said that the committee needs to identify its legislative goals with evidence, needs to provide evidence of what it's doing.

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And we thoroughly dispute, as this court knows, that the committee is genuinely pursuing this legislation, that this subpoena is an attempt

[00:15:34] Speaker 02:
Sorry, I believe I'm maybe over my time.

[00:15:37] Speaker 05:
That's okay.

[00:15:38] Speaker 04:
No, you keep going.

[00:15:39] Speaker 04:
We have some more questions anyway.

[00:15:41] Speaker 04:
Yeah.

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Go ahead.

[00:15:43] Speaker 02:
We have a dispute about whether this, the legislation identified in the Maloney memo is truly what is being pursued by the committee, whether these requests are reasonably necessary or even reasonably relevant to that legislation.

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And part of that dispute, if we sort of take ourselves to a time where the Maloney memo is in the record and we're talking about it that way, there have been a lot of shifts in the explanations given for the subpoena.

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We started in the district court with discussing the informing function that the committee wanted this information so that it could provide it to the public and inform it about the president's finances.

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We moved then to a hearing about Michael Cohen and his particular allegations of

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of supposed criminal misconduct in 2011 through 2013.

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There's a March 20 letter from Chairman Cummings that explains that that's what the committee is looking into.

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Then we have, as this court knows, sort of in the en banc proceedings, there's a discussion of impeachment and that the subpoena is somehow an attempt to support an impeachment hearing or impeachment proceeding.

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And then now we have the Maloney memo that really takes Michael Cohen and puts him in the background

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His allegations are no longer the subject of the investigation, but instead there are these three particular legislative goals that we believe were separate investigations from this one that are now being used to justify this investigation.

[00:17:07] Speaker 01:
Okay.

[00:17:07] Speaker 01:
Mr. Norris, can I ask you, under the Supreme Court's decision and to the points you were just making, do we have to accept the committee's legislative purposes on their face?

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Or can we inquire into the validity of that purpose?

[00:17:23] Speaker 01:
Or under the Supreme Court's test, can we only inquire into the validity of the evidence that Congress uses to establish its asserted purposes?

[00:17:36] Speaker 02:
I think I think the court said that the committee needs to justify what it's doing with evidence and part of that is that evidence needs to justify the quote significant step of involving the president.

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I think that's fairly searching review of what the committee is doing and fairly evidentiary and fact based.

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And the other part of that is the Supreme Court told the lower courts that it must insist on a subpoena that is no broader than reasonably necessary.

[00:18:05] Speaker 02:
I think all of that is fairly searching review.

[00:18:07] Speaker 01:
What is there in your view?

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Can you give an example of a subpoena that would be reasonably necessary?

[00:18:19] Speaker 01:
Because one of the main takeaways, I think, from the Supreme Court's decision is that we have to balance these competing interests.

[00:18:27] Speaker 01:
I'm wondering, in your view, what

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What would it look like?

[00:18:31] Speaker 01:
You think this is not reasonably necessary.

[00:18:33] Speaker 01:
What would it look like for Congress to say that something was reasonably necessary?

[00:18:38] Speaker 01:
Can you give us an example of that?

[00:18:40] Speaker 02:
Well, I think the easier examples are the ones that caused the Supreme Court not accept the heightened need standard.

[00:18:49] Speaker 02:
The court was concerned that the president's papers are not just purely personal sometimes, that sometimes they're infused with official decision-making and reveal things that go to the function of executive agencies or official conduct.

[00:19:05] Speaker 05:
Where in the Supreme Court say that?

[00:19:08] Speaker 02:
I think if you look at section two C, the bottom of that section of the opinion, the court- Go ahead, I'm sorry, finish your answer Judge Rao, I didn't read the opinion that way at all, but go ahead.

[00:19:21] Speaker 02:
I do think the court was thinking about personal papers that are infused with official actions.

[00:19:28] Speaker 05:
I'm sorry Judge Rao, would they still be personal papers?

[00:19:33] Speaker 05:
Once they're infused with official actions?

[00:19:35] Speaker 05:
That seems very confusing to me.

[00:19:36] Speaker 02:
Well, I believe there's an example given in the opinion where President Reagan disclosed some of his diaries, sort of the most personal documents you can imagine, but they had some relevance to an investigation that involved Canada, I believe is the example in the Supreme Court's opinion.

[00:19:56] Speaker 02:
But you can see instances like that.

[00:19:59] Speaker 02:
But the Supreme Court also said in the next section that

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Surely personal papers like the ones that issue here have a quote less evident connection quote to legislation.

[00:20:10] Speaker 02:
And so these types of cases.

[00:20:12] Speaker 02:
I think the court said pose an impermissible or a heightened risk that the committee is doing something impermissible rather than focusing on true legislation.

[00:20:20] Speaker 01:
Can the committee ever seek the president's personal papers for any purpose.

[00:20:27] Speaker 01:
Do you think under the Supreme Court's test, is there any time when such papers would be permissible to seek?

[00:20:35] Speaker 02:
I think the Supreme Court's opinion, you know, Justice Thomas addresses this directly, but the Supreme Court does not.

[00:20:42] Speaker 02:
I think all we know from the Supreme Court's opinion is that those occasions will be very rare.

[00:20:47] Speaker 02:
They will have to satisfy this multi-part test and personal papers have a less evident connection to legislation and pose a heightened risk that something is amiss, that something like exposure or law enforcement or pure politics is involved.

[00:21:02] Speaker 02:
But I don't want to say never.

[00:21:04] Speaker 02:
I don't think the Supreme Court said never in its opinion.

[00:21:08] Speaker 02:
I think it said, here are the rigorous requirements we are going to require before that's allowed.

[00:21:18] Speaker 04:
So I want to ask you a question about a statement you make in your brief, Mr. Norris, because I want to be sure that we agree on what it is we have to decide here and what it is we don't have to decide.

[00:21:33] Speaker 04:
You say that the Supreme Court, and this is a quote, unanimously rejected the panel's view that the House rules and resolution authorizes subpoena.

[00:21:51] Speaker 04:
I'm curious about that because, I mean, you argued that in your briefs before the court, and the court never mentioned this issue at all.

[00:22:03] Speaker 04:
And one would have thought that if the court had some doubt about whether the subpoena was properly authorized, it not only would have said so, but it wouldn't have had to even address the question of our proper standard, nor would it have needed to articulate the four factors.

[00:22:23] Speaker 02:
I just have three responses to that, Judge.

[00:22:25] Speaker 04:
So could you explain to me why you think, so it's your argument

[00:22:29] Speaker 04:
that the, that the authority, the adequacy of the House resolution is still before us?

[00:22:34] Speaker 04:
Is that your position?

[00:22:36] Speaker 02:
Yes, Your Honor.

[00:22:38] Speaker 04:
Why, how is that?

[00:22:39] Speaker 04:
Could you explain that to me?

[00:22:42] Speaker 02:
Yes, so

[00:22:43] Speaker 02:
We think that that statement you quoted, if that's in our brief, Judge Taylor, that may be a little imprecise.

[00:22:48] Speaker 02:
What we meant was the rationale that underlaid this court's house rules reasoning was rejected by the Supreme Court because the Supreme Court told us quite clearly that this subpoena does raise sensitive and weighty separation of powers and constitutional concerns.

[00:23:04] Speaker 02:
I agree.

[00:23:07] Speaker 04:
But the court responds to that.

[00:23:10] Speaker 04:
was to articulate four factors that we have to apply.

[00:23:15] Speaker 04:
They didn't say anything about the adequacy of the House resolution, right?

[00:23:22] Speaker 02:
There is no discussion of the House rules in the Court's opinion.

[00:23:25] Speaker 02:
I do think it's an issue, however, because it vacated this Court's decision in full.

[00:23:31] Speaker 04:
It vacated it with instructions to proceed in accordance with its opinion, right?

[00:23:40] Speaker 04:
And I ask my question to you.

[00:23:42] Speaker 04:
I want to be sure we understand your position.

[00:23:46] Speaker 04:
The way I read the Supreme Court's opinion, it is a directive.

[00:23:50] Speaker 04:
Let's set aside the debate about the Maloney memo for a moment, OK?

[00:23:54] Speaker 04:
Even if you're right that we have to consider the Maloney memo, and even if you're right that the Maloney, that it has to go back to the district court, I want to be sure that we understand each other.

[00:24:05] Speaker 04:
The way I read the opinion, the court has vacated

[00:24:09] Speaker 04:
opinion of the D.C.

[00:24:10] Speaker 04:
Circuit remanded for proceedings consistent with its opinion, which is the directive to apply the four factors in this case, correct?

[00:24:22] Speaker 02:
I would dispute some of that, Judge Tatel.

[00:24:24] Speaker 02:
I think, of course, the directive to apply the four factors.

[00:24:27] Speaker 02:
But I think

[00:24:28] Speaker 02:
in vacating this court's entire decision, it would have been fairly easy to drop a footnote in the opinion saying that we agree with the lower court's analysis of the other remaining arguments in this case.

[00:24:39] Speaker 02:
And it would have been easy to affirm in part and vacate in part, but the Supreme Court didn't do that.

[00:24:43] Speaker 02:
It vacated the decision on one sufficient basis to decide the two consolidated cases in front of it.

[00:24:51] Speaker 02:
the separation of powers concerns in the four factor test was a sufficient reason to vacate.

[00:24:58] Speaker 02:
And so I believe a vacater wipes out the opinion of this court completely.

[00:25:03] Speaker 02:
And so all those questions are back before you now.

[00:25:06] Speaker 04:
We can't prevent you from continuing.

[00:25:12] Speaker 04:
If the Supreme Court had agreed with you that in the argument you made before the court, I mean, the argument you made is that

[00:25:19] Speaker 04:
There's no need to address these weighty constitutional questions because the House resolution is inadequate to authorize a subpoena.

[00:25:28] Speaker 04:
And the court could have, if the court had agreed with you, it could have avoided these tricky constitutional issues and just invalidated the subpoena on that grounds alone, but it didn't do that.

[00:25:38] Speaker 04:
And we know from clear Supreme Court precedent that constitutional avoidance, that was easy.

[00:25:45] Speaker 04:
As you said in your brief, you can avoid all these difficult questions

[00:25:49] Speaker 04:
by declaring that the House resolution is inadequate, but the court didn't do that, didn't even mention it.

[00:25:55] Speaker 04:
I just, I honestly don't see, I think the court would be stunned if we issued an opinion saying, oh, we've taken a look at this again and now we realize that the House resolution is inadequate.

[00:26:10] Speaker 06:
Don't you?

[00:26:12] Speaker 02:
I understand what you're saying, Judge Tatel.

[00:26:14] Speaker 02:
I think the court spoke when it vacated this court's entire opinion.

[00:26:17] Speaker 02:
It could have just as easily affirmed.

[00:26:22] Speaker 04:
I understand your argument.

[00:26:24] Speaker 05:
That's fine.

[00:26:24] Speaker 05:
Do you think the Supreme Court takes constitutional avoidance clearly?

[00:26:27] Speaker 05:
Judge Millett.

[00:26:29] Speaker 05:
Sorry, do you think the Supreme Court takes constitutional avoidance clearly?

[00:26:33] Speaker 02:
I do, Judge Millett.

[00:26:33] Speaker 05:
I also think this is an unusual- Do you think they consider it an essential predicate before reaching

[00:26:40] Speaker 05:
grave constitutional questions of the type they did here.

[00:26:44] Speaker 02:
I do judge them a lot.

[00:26:45] Speaker 02:
They take it seriously.

[00:26:46] Speaker 02:
I do think this is an odd case in that there were two consolidated cases with two sets of house rules that would have had to have been investigated.

[00:26:54] Speaker 01:
Mr. Norris, can I ask you a related question?

[00:26:56] Speaker 01:
Even if we were to reconsider your clear statement principle, right, that the House did not clearly give this power to the committee, I mean, what about House Resolution 507?

[00:27:13] Speaker 01:
Isn't that a clear statement?

[00:27:15] Speaker 01:
I mean, what more would we ask from the House?

[00:27:18] Speaker 01:
Like if we were to say you need to make a clear statement, what could they do?

[00:27:23] Speaker 01:
Or what would you envision that they do other than something like House Resolution 507?

[00:27:29] Speaker 01:
I mean, haven't they in fact given us a clear statement here?

[00:27:33] Speaker 02:
So in terms of the what else, our position is the same.

[00:27:36] Speaker 02:
I think we need to amend the House rules themselves to specify their authority to get the president's personal papers and then reissue a new subpoena under those rules.

[00:27:48] Speaker 01:
And so you would have a court tell the House what format it should use in terms of organizing the authority of its committees.

[00:28:01] Speaker 01:
that a court should say you have to do this by a rule and not by a resolution.

[00:28:05] Speaker 01:
I mean, isn't that judicial interference in the House's rules of proceedings?

[00:28:13] Speaker 02:
I don't think so, Judge Rao.

[00:28:15] Speaker 02:
I think that that principle flows from this court's avoidance cases in this area.

[00:28:20] Speaker 02:
Tobin is one.

[00:28:21] Speaker 02:
Rumley from the US Supreme Court.

[00:28:24] Speaker 01:
So even if we accept Tobin and Rumley, though, why isn't House Resolution 507 enough?

[00:28:30] Speaker 01:
So you're saying it's not enough because it's not a rule.

[00:28:33] Speaker 01:
It's a resolution, not a rule.

[00:28:35] Speaker 01:
I mean, is that a distinction that should matter from the judicial perspective?

[00:28:40] Speaker 02:
I think the distinction is that it does not attempt to amend the House rules.

[00:28:44] Speaker 02:
The House rules, according to the case law, are essentially jurisdictional for the committees.

[00:28:50] Speaker 02:
That's their only source of authority.

[00:28:51] Speaker 02:
They cannot act outside of it.

[00:28:53] Speaker 02:
And so I do think there's a difference between a resolution

[00:28:57] Speaker 02:
Declaring broad agreement with with the outcomes of an investigation versus one that takes does the hard work of change house rules and re issuing the subpoena and I We actually agree with the majority opinion from from the court in this case earlier that that the resolution does not amend the house rules does not report to you and there's a separate argument which we've made, which is even if it did

[00:29:21] Speaker 02:
There's an open question in this circuit about when, whether the timing was correct, whether they need to reissue the subpoena after the resolution, or whether you look at the committee's authority at the time that the subpoena was issued and whether that can be retroactively amended.

[00:29:34] Speaker 02:
All those questions were litigated the first time around and the court said we may well be right about the retroactivity point.

[00:29:43] Speaker 02:
The things we were not right about according to this court were

[00:29:46] Speaker 02:
whether this case presents sensitive constitutional questions and whether subpoenas for the president's papers do in fact implicate the house's authority vis-a-vis the executive branch.

[00:29:58] Speaker 02:
And those are the questions we think the Supreme Court should answer.

[00:30:02] Speaker 04:
Following up on our discussion about the House resolution, let me just read you a sentence from one of our decisions where we faced exactly the same question, Brody versus Mather,

[00:30:16] Speaker 04:
Although the Supreme Court vacated our prior opinion, it expressed no opinion on the merits of these holdings, that is, the holdings that weren't before the court.

[00:30:28] Speaker 04:
They therefore continue to have precedential weight.

[00:30:30] Speaker 04:
And in the absence of contrary authority, we do not disturb them.

[00:30:35] Speaker 04:
Why doesn't that apply precisely to the issues, the adequacy of the House resolution, constitutional avoidance, and all those other issues that you think we're now free to revisit?

[00:30:48] Speaker 02:
Yes, Judge, you know, we don't dispute that principle.

[00:30:50] Speaker 02:
I would say that principle.

[00:30:52] Speaker 02:
Pardon me?

[00:30:53] Speaker 02:
We don't dispute that principle from this court's case law, the presidential weight.

[00:30:57] Speaker 02:
We don't.

[00:30:57] Speaker 02:
No, no, but presidential weight does not mean binding.

[00:31:00] Speaker 02:
It means that the vacated opinion continues to have persuasive force to the extent.

[00:31:06] Speaker 04:
No, no, no, no, no, no, not the opinion.

[00:31:09] Speaker 04:
He's talking about the issues that were not decided by the Supreme Court, but that were decided by the panel.

[00:31:16] Speaker 02:
Correct, and vacater means that...

[00:31:22] Speaker 02:
We don't disagree with that sentence.

[00:31:24] Speaker 02:
The vacated issues that were not passed on by the Supreme Court continue to have persuasive force.

[00:31:33] Speaker 02:
The Supreme Court didn't speak to those issues directly, so this court is not forbidden from readopting those.

[00:31:39] Speaker 02:
Those holdings do not have actual presidential force.

[00:31:43] Speaker 02:
They have persuasive force.

[00:31:45] Speaker 02:
But the key part of that sentence is that

[00:31:47] Speaker 02:
an absent contrary reason to disturb them.

[00:31:50] Speaker 02:
We actually think that the Supreme Court's opinion has reasons to disturb all of the prior holdings of this court that it did not specifically address.

[00:31:59] Speaker 02:
The clear statement principle we just discussed, the court told us that even if this subpoena were issued by the entire House, it would still present weighty separation of powers concerns.

[00:32:10] Speaker 02:
In terms of law enforcement and exposure, the Supreme Court told us...

[00:32:15] Speaker 04:
You're certainly right about that.

[00:32:17] Speaker 04:
That's completely correct.

[00:32:20] Speaker 04:
I was just focusing on this simple question that you raise in your brief about whether or not the House resolution is adequate to support the subpoena.

[00:32:34] Speaker 04:
And I'm trying to find out why you think that is still an open issue for us, given the fact that the Supreme Court, even though you argued it,

[00:32:45] Speaker 04:
and argued that it would be a basis for avoiding the constitutional questions.

[00:32:50] Speaker 04:
Didn't say a word about it.

[00:32:53] Speaker 04:
And instead, address the constitutional question, rejected your, what it called, demanding view, rejected the House's less demanding view, and articulated four factors that it remanded us to apply.

[00:33:06] Speaker 04:
Correct.

[00:33:10] Speaker 02:
It did all that.

[00:33:11] Speaker 02:
We did argue this in front of the Supreme Court.

[00:33:13] Speaker 02:
I'm hesitant to...

[00:33:14] Speaker 02:
Put a lot of weight into silences Supreme Court opinions, you know with a sorry you just broke up But then could you just go back to the weekend?

[00:33:22] Speaker 04:
It's the internet.

[00:33:23] Speaker 04:
Not you.

[00:33:24] Speaker 04:
Go ahead.

[00:33:25] Speaker 02:
I'm sorry.

[00:33:26] Speaker 02:
I said Interpreting silences and Supreme Court opinions is always a dicey exercise But sometimes dicey even to articulate non silence you interpret non silence Exactly and and

[00:33:43] Speaker 02:
But I do think that the Supreme Court didn't

[00:33:46] Speaker 02:
confront the constitutional question in this case is whether this subpoena will be enforced.

[00:33:51] Speaker 02:
The Supreme Court articulated a test for how to assess congressional subpoenas for the president's papers.

[00:33:58] Speaker 02:
It didn't apply that test itself.

[00:34:01] Speaker 02:
It gave guidance.

[00:34:02] Speaker 02:
It thought that guidance was sufficient to vacate the decisions of this court and the Second Circuit and remand.

[00:34:09] Speaker 02:
And that vacator, we believe, puts all the issues back on the table with the Supreme Court's guidance in mind.

[00:34:18] Speaker 01:
Mr. Morris, I have one other question.

[00:34:21] Speaker 01:
Do you think that in this context, the district court or even this court has the authority to narrow the committee subpoena?

[00:34:31] Speaker 01:
Is there judicial authority either in the district court or with us to do that?

[00:34:38] Speaker 01:
Or would such a subpoena have to be voted on by the committee?

[00:34:44] Speaker 02:
We've argued it.

[00:34:45] Speaker 02:
There are cases that narrow congressional subpoenas.

[00:34:48] Speaker 02:
I do think the Supreme Court's opinion in this case may have overtaken those prior authorities.

[00:34:53] Speaker 02:
The court has a line that says paraphrasing here, but I believe it's the court must insist on a subpoena that is no broader than reasonably necessary.

[00:35:03] Speaker 02:
and insist on a subpoena sounds to me like what we argued initially, which is a subpoena needs to be good and full.

[00:35:11] Speaker 02:
And if there are defects, the court can identify those specific defects and the committee can fix those specific defects itself.

[00:35:18] Speaker 02:
But I do think the committee needs to go back to the drawing board and do the work itself.

[00:35:23] Speaker 01:
So there's no possibility for narrowing the subpoena by the district court.

[00:35:32] Speaker 02:
All I can say, Judge Rao, is courts have done that in the past.

[00:35:35] Speaker 02:
In terms of whether they can do that, I think that's questionable in light of the Supreme Court's opinion.

[00:35:40] Speaker 02:
But of course, we would be happier with a narrower subpoena compared to the subpoena we have now.

[00:35:45] Speaker 01:
Well, it does seem to be that that's one of the reasons for remanding, right?

[00:35:48] Speaker 01:
This possibility that the district court might have some greater authority to narrow the subpoena.

[00:35:53] Speaker 01:
And I am wondering if that is even an authority that the district court has.

[00:36:00] Speaker 02:
I think that if it is an authority they have, it would be a benefit.

[00:36:03] Speaker 02:
I also think, you know, we've given other reasons why the district court is better suited here, especially to evaluate the effectiveness of accommodation and to weigh the facts in the record there.

[00:36:16] Speaker 02:
Judge Ramos in the Southern District of New York in the parallel Second Circuit case said that if this were a normal subpoena case, he would have

[00:36:25] Speaker 02:
force the parties to narrow it down to the key disputes.

[00:36:29] Speaker 02:
I think there are supervisory fact-finding and even legal questions of first impression that the district court is well suited to address.

[00:36:39] Speaker 05:
Well, can I just follow up?

[00:36:41] Speaker 05:
You guys, your complaint asks for injunctive relief, washing the subpoena.

[00:36:46] Speaker 05:
So it's your position that that injunctive relief can't be granted in part by district court?

[00:36:55] Speaker 05:
has to be granted, it's all or nothing?

[00:36:57] Speaker 05:
Or do you think you could get a partial injunction?

[00:37:01] Speaker 02:
Judge Muller, I think that's exactly the question that's sort of open in the case law right now.

[00:37:04] Speaker 02:
Our position- It's your complaint.

[00:37:05] Speaker 05:
Was your complaint seeking either complete injunction or nothing?

[00:37:09] Speaker 05:
Or is it your position that your complaint would allow a district court to do, to grant your motion in part and deny it in part by narrowing the injunction?

[00:37:18] Speaker 02:
You quoted our complaint correctly.

[00:37:20] Speaker 02:
We sought to quash the subpoena in full.

[00:37:22] Speaker 02:
We also asked for all other appropriate relief

[00:37:25] Speaker 05:
I want to try one more time.

[00:37:29] Speaker 05:
And so my question to you is, and I hope I can get maybe a yes or no answer here, is it your position that the district court would have the authority on your complaint to grant your request for injunctive relief in part, but not in whole?

[00:37:44] Speaker 05:
What is your position on that?

[00:37:47] Speaker 05:
Your position?

[00:37:48] Speaker 02:
I'm sorry, Judge Mullen.

[00:37:49] Speaker 02:
I'm reading that as two questions.

[00:37:50] Speaker 02:
One, does it have the authority?

[00:37:51] Speaker 02:
And two, did we preserve that request in our complaint?

[00:37:55] Speaker 05:
Answer them both.

[00:37:57] Speaker 05:
That's fine.

[00:37:58] Speaker 02:
Apparently preserved, and we asked for all other appropriate relief, which would encompass lesser injunctions.

[00:38:04] Speaker 05:
Your view is that the appropriate relief from the district court would encompass narrowing the injunction.

[00:38:10] Speaker 05:
I'm not talking about the Court of Appeals.

[00:38:12] Speaker 05:
I'm talking about the district court.

[00:38:13] Speaker 02:
Correct.

[00:38:14] Speaker 05:
OK.

[00:38:15] Speaker 05:
That's what I was trying to figure out.

[00:38:16] Speaker 05:
Thank you.

[00:38:21] Speaker 05:
That's it.

[00:38:21] Speaker 05:
I don't have any more questions.

[00:38:22] Speaker 04:
Anything else, Judge Rao?

[00:38:24] Speaker 05:
No.

[00:38:25] Speaker 04:
Thank you.

[00:38:26] Speaker 04:
No.

[00:38:28] Speaker 04:
Thank you, Mr. Morris.

[00:38:29] Speaker 04:
We'll give you a minute or two on rebuttal.

[00:38:31] Speaker 04:
We'll hear from the committee.

[00:38:32] Speaker 03:
May it please the court.

[00:38:37] Speaker 03:
Can you hear me, just making sure?

[00:38:39] Speaker 05:
Yes.

[00:38:40] Speaker 03:
May it please the court.

[00:38:41] Speaker 03:
I'm Douglas Leder, the general counsel of the House of Representatives.

[00:38:44] Speaker 03:
Good morning, Your Honors.

[00:38:47] Speaker 03:
The court asked a wide range of questions, and I have notes on all of them.

[00:38:52] Speaker 03:
So I was just going to

[00:38:54] Speaker 03:
jump right in and respond to a batch of the questions the court asks, but I assume.

[00:38:59] Speaker 05:
Before you do that, can I interject with a question?

[00:39:01] Speaker 05:
Of course.

[00:39:03] Speaker 05:
Can this litigation, this very litigation, possibly be concluded before January 3rd?

[00:39:14] Speaker 03:
Absolutely.

[00:39:15] Speaker 05:
Our review option for on-bank Supreme Court review?

[00:39:21] Speaker 03:
It definitely can, Your Honor, because you can issue a ruling enforcing the subpoena in full or in part.

[00:39:31] Speaker 03:
You can issue the mandate right away.

[00:39:35] Speaker 03:
President Trump will have a decision whether to seek, speak for the review at all, to seek review in en banc or cert.

[00:39:45] Speaker 03:
And, but presumably he would seek a stay.

[00:39:49] Speaker 03:
And if that stays denied, then it, the material would be, I assume President Trump would comply or Mazers would comply and the material would then be released whether

[00:40:02] Speaker 03:
that would make it moot.

[00:40:04] Speaker 03:
There'd be a strong argument that that would make it moot.

[00:40:07] Speaker 03:
So yes, this is all.

[00:40:09] Speaker 04:
All of that, all of those circumstances existed in the Harriet Myers case.

[00:40:16] Speaker 04:
Yet the court postponed it until the next Congress.

[00:40:22] Speaker 03:
Your Honor, I know Your Honor was on that panel, so I'm going to defer to Your Honor.

[00:40:27] Speaker 04:
If anybody can read the opinion.

[00:40:30] Speaker 03:
Yes.

[00:40:32] Speaker 03:
My memory, Your Honor, was that was closer to the January 20th date than we are now.

[00:40:43] Speaker 03:
And it was also in district court.

[00:40:46] Speaker 03:
There had been a district court ruling.

[00:40:49] Speaker 03:
Here, it seems to me all of these issues are teed up.

[00:40:52] Speaker 03:
This court could rule very fast.

[00:40:55] Speaker 03:
The court could issue a judgment.

[00:40:58] Speaker 04:
The Harriet Meyers case, the timing was almost identical.

[00:41:03] Speaker 04:
I don't actually have the dates in front of me, but I think we were in October and the court made it very clear that it couldn't be resolved by the end of the term.

[00:41:16] Speaker 04:
In fact, in your brief, you distinguished the case by saying this case is different because in that case, the committee conceded that it couldn't.

[00:41:26] Speaker 04:
be completed by the end of the Congress.

[00:41:29] Speaker 04:
But that's not what it says.

[00:41:31] Speaker 04:
It says the committee acknowledged, acknowledged just the reality of the timing, that it couldn't practically be done.

[00:41:39] Speaker 04:
I mean, look, let's assume we got an opinion out, something out in two or three weeks.

[00:41:45] Speaker 04:
It took a month in the most recent on-bank, the McGahn case.

[00:41:53] Speaker 04:
And by the way, there again, Mr. Wetter,

[00:41:56] Speaker 04:
We have the on-bank court just did exactly the same thing in the McGahn case.

[00:42:02] Speaker 04:
So you have two DC Circuit instances where under circumstances almost identical to this, we have decided it's best not to act until the new Congress is in place.

[00:42:16] Speaker 04:
It's hard for me to see how you avoid that in this case.

[00:42:20] Speaker 03:
Two points, Your Honor.

[00:42:23] Speaker 03:
And I apologize, Your Honor.

[00:42:24] Speaker 03:
Maybe you know an order that issued that I don't.

[00:42:28] Speaker 03:
This court granted en banc and began, and I'm sorry, were you saying the court agreed not to decide?

[00:42:35] Speaker 03:
I apologize.

[00:42:36] Speaker 03:
I may have misunderstood.

[00:42:39] Speaker 04:
The oral argument is scheduled for February, and we cited minors.

[00:42:42] Speaker 03:
Oh, yes.

[00:42:44] Speaker 03:
Your Honor, remember that this

[00:42:47] Speaker 03:
case easily could be carried over into the next Congress.

[00:42:53] Speaker 03:
This is something that happens.

[00:42:57] Speaker 04:
This case now?

[00:42:58] Speaker 03:
Yes.

[00:43:00] Speaker 04:
What happens is... That's why it's exactly like Myers.

[00:43:05] Speaker 03:
First of all, I'm not acknowledging, apparently, what was done in Myers.

[00:43:11] Speaker 03:
We believe that this court can and should rule

[00:43:14] Speaker 03:
quickly, issue its mandate immediately, and enforce a subpoena.

[00:43:19] Speaker 03:
But if the court doesn't, then this matter, clearly, all that has to happen is on the initial day of the new Congress, January 3rd, it often happens that the Congress then renews ongoing litigation.

[00:43:36] Speaker 03:
And we have a batch of cases that are in that same exact situation, and we fully expect that that will be what will happen.

[00:43:44] Speaker 05:
But when you say renew litigation, does that mean they would reissue the subpoena?

[00:43:50] Speaker 05:
I just don't know how this technically works.

[00:43:52] Speaker 03:
Your Honor, my understanding is that in the past, the House has not actually issued new subpoenas that the committee chair can just say we're continuing with the litigation of that subpoena.

[00:44:06] Speaker 03:
That's my understanding of

[00:44:08] Speaker 03:
of one way that the House can do it.

[00:44:10] Speaker 05:
So the subpoena itself does not have any kind of expiration?

[00:44:18] Speaker 03:
Well, normally it would, Your Honor, but in this kind of circumstance, my understanding is the Committee, the whole House, this would be done on the first day of the whole House, and the whole House would say, we are continuing

[00:44:34] Speaker 03:
the litigation, and either the House could say we're continuing the subpoenas or the committee chairs could do so.

[00:44:42] Speaker 03:
That would be up to the House to decide if it won't.

[00:44:44] Speaker 05:
The full House doesn't, could just do that.

[00:44:47] Speaker 03:
My understanding is that's one way, Your Honor.

[00:44:50] Speaker 05:
I just don't know the answer to this.

[00:44:53] Speaker 05:
Do we know committee chairs on January 3rd?

[00:44:57] Speaker 05:
The committee chair could change, right?

[00:44:59] Speaker 03:
Well, one, you know, if the majority changes, of course we don't know.

[00:45:07] Speaker 03:
If the majority holds, and as you know, there have been many, many times over the history of the country where it holds with the same party.

[00:45:18] Speaker 03:
And then in that circumstance, a very large percentage of the committee chairs remain the same.

[00:45:24] Speaker 03:
And so the committee chairs, as my understanding is, as a practical matter, will be doing things in the beginning of the new Congress before all the committees are totally set.

[00:45:37] Speaker 03:
It can take some time for committee assignments in total to be set.

[00:45:43] Speaker 03:
But if the full House can, yes, Your Honor.

[00:45:50] Speaker 04:
Your point, your answer is to Judge Millett.

[00:45:55] Speaker 04:
make this even closer to Myers.

[00:45:59] Speaker 04:
We said in Myers, and I'm quoting here, if the case does not become despite the expiration of the subpoenas, there would be no pressing need for an immediate decision.

[00:46:14] Speaker 04:
That's what we said in Myers.

[00:46:16] Speaker 04:
And then we also went ahead and said, it has the additional benefit

[00:46:20] Speaker 04:
of permitting the new president, well, we don't know about that, presenting the new house an opportunity to express their views on this.

[00:46:30] Speaker 04:
It seems to me to be almost identical to the Myers case.

[00:46:40] Speaker 03:
Your honor, I think there are some very significant differences here.

[00:46:43] Speaker 03:
And by the way, I've now been informed that the committee's.

[00:46:49] Speaker 03:
I'm sorry, your honor.

[00:46:51] Speaker 04:
I'm just saying what is significant differences.

[00:46:55] Speaker 03:
Just say what Yes, I need to correct something I said a moment ago.

[00:46:59] Speaker 03:
I'm told that the that new new

[00:47:04] Speaker 03:
subpoenas would be issued, but could be identical.

[00:47:08] Speaker 03:
And what happens is the committee chairs are selected in December.

[00:47:14] Speaker 03:
So we would know on January 3rd who the committee chairs are.

[00:47:17] Speaker 03:
So the committee chairs, and remember the committee chairs for either all the virtual health committees, issue subpoenas under current house rules.

[00:47:26] Speaker 03:
So that would be known on the first day.

[00:47:30] Speaker 03:
Before the first day, we would know who the committee chairs are and the committee chairs then, consistent with what the whole, the full House does on opening day, the committee chairs would renew the identical subpoenas.

[00:47:45] Speaker 05:
The committee chairs also could, in light of an intervening Supreme Court decision, decide, think about whether they want to, or we don't know if that would happen automatically.

[00:47:53] Speaker 05:
They might think about whether they want to.

[00:47:56] Speaker 05:
in light of the Supreme Court decision, in light of intervening facts, whatever, want to reformulate the subpoena.

[00:48:02] Speaker 03:
And Your Honor, that's no different from today.

[00:48:04] Speaker 03:
Your Honor, that's no different from today.

[00:48:07] Speaker 03:
If the committee chair wanted to change or withdraw, do anything with the subpoena, the committee chairs would be free to do that as right now.

[00:48:17] Speaker 05:
It might be, but if you have a change in membership, obviously if you have a change in party, if you have a change in membership, or

[00:48:24] Speaker 05:
You know, if you are issuing a new subpoena, it's sort of a logical time to revisit issues.

[00:48:31] Speaker 03:
And so, sorry, I wanted to get quickly back to Judge Tatel's question about what's different.

[00:48:38] Speaker 03:
What's different is we've had long running litigation, district court decision, ruling by this court, Supreme Court decision.

[00:48:44] Speaker 03:
As Your Honor mentioned, or I think all three of you mentioned before, this court's prior opinion was vacated.

[00:48:54] Speaker 03:
under circumstances that the precedent of this court is that it remains binding precedent on a whole batch of issues.

[00:49:01] Speaker 03:
So this court, unlike in Myers, this court has already ruled on most of the legal arguments here.

[00:49:09] Speaker 03:
The Supreme Court then said,

[00:49:11] Speaker 03:
you erred, you didn't give enough weight to the separation of powers issues, because we should consider this a subpoena against the president.

[00:49:21] Speaker 03:
And therefore, we need the courts to weigh under four factors that the Supreme Court said to be taken into account.

[00:49:32] Speaker 03:
That's very, very different from the situation in Myers, and indeed,

[00:49:38] Speaker 03:
The reasons that have been said in our brief, we think the most of the key issues in this case have already been decided and not touched by the Supreme Court.

[00:49:47] Speaker 03:
That's why it seems to me this court could and should rule this litigation has been going on for extremely long time.

[00:49:56] Speaker 03:
And there's no good reason for the court not to issue its decision.

[00:50:02] Speaker 03:
issue its mandate, and we'll see what happens.

[00:50:04] Speaker 03:
It may very well be.

[00:50:05] Speaker 04:
Are there any other differences?

[00:50:07] Speaker 04:
You said there were significant differences, plural.

[00:50:10] Speaker 04:
What are the others?

[00:50:11] Speaker 03:
Well, I guess I think the difference in the status of the two cases seems to me very significant.

[00:50:22] Speaker 03:
Maybe when I said status, that's singular, but there are various parts of that status that make up a plural.

[00:50:34] Speaker 04:
Once my colleagues have more questions about that issue, I was going to change the subject.

[00:50:44] Speaker 04:
Judge Mollight, did you?

[00:50:46] Speaker 05:
Judge, are you online here?

[00:50:47] Speaker 05:
No.

[00:50:48] Speaker 05:
I had a different topic.

[00:50:49] Speaker 04:
Go ahead.

[00:50:52] Speaker 04:
You say in your... I want to pursue the same questions with you that the three of us were pursuing with Mr. Norris about the question of the Maloney memo and the related question of Remain.

[00:51:03] Speaker 04:
Did I understand your brief correctly that you believe we can decide this case based on the Cummings record, correct?

[00:51:09] Speaker 03:
Yes.

[00:51:11] Speaker 04:
Without looking at the Maloney record, Maloney, correct?

[00:51:14] Speaker 03:
Yes, we believe that you can.

[00:51:18] Speaker 04:
Suppose I look at the Cummings record, and because I think this is just a hypothetical.

[00:51:26] Speaker 04:
And because I think the fourth, at least two of the four factors,

[00:51:32] Speaker 04:
I'll tell you what they are.

[00:51:35] Speaker 04:
Suppose I think that two of the four factors seem to me to be much tougher than what we apply.

[00:51:43] Speaker 04:
It seems to have an exhaustion requirement in it.

[00:51:46] Speaker 04:
And it also, we applied for relevance, a reasonable relevance standard.

[00:51:53] Speaker 04:
And that's different.

[00:51:54] Speaker 04:
That's obviously a lighter standard than reasonably necessary.

[00:51:57] Speaker 04:
Suppose I look at the subpoena and I think,

[00:52:01] Speaker 04:
that based on the Cummings record, it doesn't survive?

[00:52:07] Speaker 04:
Do you want the court to go on then and then look at the Maloney record where you say the gaps are filled in, or are you prepared to say you're happy to have the subpoena live or die on the Cummings record?

[00:52:21] Speaker 03:
What we said is this can be upheld on the basis of the Cummings material, but if you have concerns about that, you definitely should look at the Maloney memo and we believe the case law shows that you can't.

[00:52:38] Speaker 03:
So it seems to me that obviously it's not directly on point because we didn't have an exact situation like this one, but Senate select committee, this court in bank,

[00:52:49] Speaker 03:
looked at new material.

[00:52:51] Speaker 03:
It looked at what had happened outside Congress.

[00:52:55] Speaker 03:
It looked at what had happened inside Congress.

[00:52:58] Speaker 03:
And it applied the circumstances right then and there, whether the subpoena should be enforced.

[00:53:05] Speaker 03:
And that's all we're asking.

[00:53:08] Speaker 04:
Let me give you a very specific example.

[00:53:11] Speaker 04:
And again, just a hypothetical.

[00:53:13] Speaker 03:
Yes.

[00:53:14] Speaker 04:
If I were to apply the reasonably necessary test

[00:53:19] Speaker 04:
to this, to the subpoena.

[00:53:21] Speaker 04:
I might wonder about the documents going, about the subpoena going all the way back to 2011, 2011 to 2013, whether those are, while we originally said they were reasonably relevant, they might not be reasonably necessary.

[00:53:37] Speaker 04:
Suppose I think that's the case.

[00:53:40] Speaker 04:
Is it your position then that we should enforce the subpoena

[00:53:47] Speaker 04:
without those two years, or that we should go ahead and look at the Maloney memo, which will satisfy us that those two years are reasonably necessary?

[00:53:55] Speaker 03:
I'm going to answer that question, yes, Your Honor.

[00:53:57] Speaker 03:
You should enforce the subpoena on the basis of Cummings for 2013 to 2018, and you should look at the Maloney memo that then will give you

[00:54:11] Speaker 03:
the full grounds on why it should go back to 2011.

[00:54:14] Speaker 03:
Although I don't think the Maloney memo actually changed the circumstances on that.

[00:54:19] Speaker 03:
I think if your honor pleases, I'd be happy to argue about why the Cummings memo shows that going back to 2011 was appropriate.

[00:54:28] Speaker 03:
But yes, you should, as I said, I answer you yes.

[00:54:32] Speaker 03:
And four is part of it.

[00:54:33] Speaker 03:
Under Cummings, look at Maloney and that I believe will give you all the grounds for

[00:54:39] Speaker 03:
enforcing us in 2011.

[00:54:42] Speaker 03:
Which gets me, if you don't mind, to the question that was asked before about, could you enforce the subpoena in part?

[00:54:49] Speaker 03:
We think that, obviously, we think the whole subpoena should be enforced.

[00:54:52] Speaker 03:
But yes, you would enforce the subpoena in a way, however you think it's valid.

[00:54:57] Speaker 03:
Remember, the Second Circuit in the Deutsche Bank case did that very thing.

[00:55:01] Speaker 03:
They thought that one small aspect of the subpoena is there.

[00:55:06] Speaker 03:
should not be enforced.

[00:55:10] Speaker 03:
And so that's exactly what the Second Circuit did.

[00:55:13] Speaker 01:
And I believe this is- That's your position that institutionally the courts can rewrite subpoenas from the House of Representatives?

[00:55:23] Speaker 01:
You think that's within the judicial power?

[00:55:25] Speaker 03:
No, of course you can't rewrite subpoenas.

[00:55:29] Speaker 03:
What you can do, just like this court cannot rewrite statutes,

[00:55:33] Speaker 03:
But they make severability determinations.

[00:55:36] Speaker 03:
The Supreme Court has said they can do that all the time.

[00:55:40] Speaker 03:
And so what you would be doing is you would be enforcing part of the subpoena, part of it not.

[00:55:46] Speaker 03:
There's absolutely no reason.

[00:55:48] Speaker 03:
And by the way, this is obviously very normal.

[00:55:52] Speaker 03:
practice in the regular world of subpoenas.

[00:55:55] Speaker 03:
Courts all the time enforce parts of it, but not others.

[00:55:58] Speaker 01:
But this is not a regular subpoena.

[00:56:00] Speaker 01:
It's a subpoena from a co-equal, I guess, half branch of government.

[00:56:06] Speaker 03:
No, Your Honor, it is from the entire House of Representatives for these purposes.

[00:56:17] Speaker 03:
is the only part that counts.

[00:56:18] Speaker 03:
Obviously, this is a house subpoena, therefore, it's a house.

[00:56:22] Speaker 01:
Right.

[00:56:23] Speaker 01:
But you're saying it's just like any other subpoena, like any private subpoena.

[00:56:27] Speaker 01:
You're saying it's the same.

[00:56:28] Speaker 01:
I'm saying maybe it's materially different and that limits our authority to modify it.

[00:56:33] Speaker 03:
Your honor, I'm sorry if I misspoke.

[00:56:36] Speaker 03:
I didn't say that it's like any other subpoena.

[00:56:38] Speaker 03:
I said that you do this all the time with other subpoenas.

[00:56:43] Speaker 03:
And I didn't, I can't think of any reason why you would do this here.

[00:56:46] Speaker 03:
If, as you said, you were actually rewriting subpoenas, if you were saying, you know, you've made a very good case and actually we're going to extend the subpoena to 2020.

[00:56:55] Speaker 03:
I don't think you could do that.

[00:56:57] Speaker 03:
Or we're going to say,

[00:56:59] Speaker 03:
In fact, this should also cover Vice President Pence.

[00:57:02] Speaker 03:
So we're gonna do that.

[00:57:03] Speaker 03:
Of course you can't do that.

[00:57:04] Speaker 03:
You can't rewrite speeders, but just like the Supreme Court and your court, you issue severability determinations all the time that occasionally may look to some people like you're doing some rewriting, but you made very clear you can't rewrite statutes, but you do that all the time in severability determinations.

[00:57:22] Speaker 03:
So I don't know any reason why that would be

[00:57:25] Speaker 05:
And of course, the House contains- I think the question is, when we do severability, it's, again, as a matter of separation of powers, it's our duty to give effect to as much law as possible that was passed by Congress and signed by a president.

[00:57:40] Speaker 05:
So is it your view that that same duty to give effect to as much as possible applies to subpoenas?

[00:57:48] Speaker 03:
Absolutely, Your Honor.

[00:57:49] Speaker 03:
This is a situation where the House has said, the House has

[00:57:55] Speaker 03:
as Judge Ralph has pointed out, a co-equal branch of government has said, we need material and it's valid for us to get it, which this court agreed with.

[00:58:05] Speaker 03:
And therefore, if the court finds that some part of this can't be enforced, well, I don't know any reason at all why you wouldn't go ahead and uphold what the House as a co-equal branch has done.

[00:58:20] Speaker 03:
I'm not sure of any theory

[00:58:22] Speaker 03:
that would say that you should not do that.

[00:58:25] Speaker 03:
I'm puzzled why that would.

[00:58:29] Speaker 05:
Just how much control you want over your own subpoena, I think is the question.

[00:58:32] Speaker 05:
How much control does a house want over its own subpoena?

[00:58:35] Speaker 03:
Well, obviously, it wants total control.

[00:58:37] Speaker 03:
We think the court should say, if the house thinks that the subpoena is valid, that's good enough for us.

[00:58:43] Speaker 03:
But of course, we're not going to do that, and the Supreme Court disagreed.

[00:58:46] Speaker 03:
But I don't know why.

[00:58:50] Speaker 03:
how it could ever possibly be that this court would say, you asked for 10 items.

[00:58:55] Speaker 03:
We believe you are under the law entitled to eight, but not the other two.

[00:58:58] Speaker 03:
And we would say, oh, no, if we can't get all 10, then the game is over.

[00:59:04] Speaker 03:
I'm hard pressed to think that there would ever be a situation where that would be appropriate.

[00:59:08] Speaker 03:
And if for some reason it were, the committee could say,

[00:59:12] Speaker 03:
I know it's all or nothing and we would have probably said that in our brief, but we, as I said, I'm very hard pressed to think of a practical situation where that would ever arise.

[00:59:22] Speaker 03:
So obviously this court obligation is to uphold whatever Congress does that is proper.

[00:59:30] Speaker 05:
On the, I'm sorry, did I say your question?

[00:59:35] Speaker 05:
On considering the Maloney memorandum, you referenced our decision in Senate select committee about sort of legislative developments there.

[00:59:45] Speaker 05:
Were those developments in factual dispute?

[00:59:50] Speaker 03:
I'm pulling out the opinion to try to see whether there were any disputes about it.

[00:59:54] Speaker 05:
There are things that happened on Congress.

[00:59:56] Speaker 05:
I didn't know that there's any factual dispute.

[00:59:58] Speaker 03:
Right.

[00:59:58] Speaker 03:
There's no factual dispute here either, Your Honor.

[01:00:01] Speaker 03:
There's no factual dispute.

[01:00:03] Speaker 03:
You can ask my friend, Mr. Norris.

[01:00:05] Speaker 05:
Well, he gave me a list of things that he does dispute about in the Maloney memo.

[01:00:12] Speaker 03:
Right.

[01:00:13] Speaker 03:
There's no dispute about material facts, just like, by the way, the original

[01:00:19] Speaker 03:
In the district court, my memory is that President Trump agreed there were no material facts in dispute.

[01:00:26] Speaker 05:
No, I know.

[01:00:26] Speaker 05:
But the question now, sure.

[01:00:28] Speaker 05:
But there was no Maloney memo.

[01:00:29] Speaker 05:
The question is, can we consider the Maloney?

[01:00:33] Speaker 05:
We had a summary judgment record, a decision on that summary judgment record.

[01:00:36] Speaker 05:
And now we have this Maloney memo that we're talking about.

[01:00:39] Speaker 05:
is legislative like the Senate committee.

[01:00:41] Speaker 05:
It's judicial notice.

[01:00:43] Speaker 05:
We're given different theories for it.

[01:00:45] Speaker 05:
But it seems to me, on a summary judgment record, the other side is arguing that they, at a minimum, would challenge some of the facts in that memo that at least to them they think are material.

[01:00:58] Speaker 05:
It might be up to a court to decide whether their material

[01:01:01] Speaker 05:
disputes.

[01:01:02] Speaker 05:
And so they said about the accommodation history, about what has been produced, which I think could bear some relevance.

[01:01:12] Speaker 05:
They argued would bear relevance to the Supreme Court prongs of the Supreme Court test that was enunciated in this case.

[01:01:21] Speaker 05:
And so that makes it not like judicial notice, and it makes it not like Senate select committee.

[01:01:29] Speaker 05:
So what does our authority

[01:01:32] Speaker 05:
for crediting everything in the Maloney Memorandum at this level in this court without the other side having a chance to offer its factual version of events.

[01:01:47] Speaker 03:
Certainly, Your Honor, and there's several questions packed in there.

[01:01:50] Speaker 03:
So I'm going to address each of them.

[01:01:52] Speaker 03:
Your Honor, you're right.

[01:01:54] Speaker 03:
This court decides what is a dispute about material facts.

[01:01:57] Speaker 03:
And our position to you is there are no disputes about material facts because this court and the Supreme Court have made clear that what you look at are what Congress, what the House says it is looking at, what it is looking into and why.

[01:02:15] Speaker 03:
And we satisfied this court last time on that.

[01:02:20] Speaker 03:
And what the Maloney memo does is it provides Chairwoman Maloney's statements, just like Chairwoman Cummings did, Chairwoman Maloney's statements of what this subpoena is about and why it is being pursued.

[01:02:35] Speaker 03:
This court, as it has done many times and as the Supreme Court has done, this court must accept that.

[01:02:42] Speaker 03:
So there's no dispute.

[01:02:43] Speaker 03:
I assume Mr. Norris is not saying that what we submitted with our brief was actually a fake, that Chairwoman Maloney didn't say this.

[01:02:53] Speaker 05:
Well, let's be clear here.

[01:02:54] Speaker 05:
That's not the argument.

[01:02:55] Speaker 05:
This is not the Maloney, Chairwoman Maloney memorandum.

[01:02:58] Speaker 05:
That's what I'm saying.

[01:02:59] Speaker 05:
But that's not the point.

[01:03:00] Speaker 05:
The point is that there's more in that memorandum than here's our purposes.

[01:03:07] Speaker 05:
Sorry, if I can just finish here.

[01:03:10] Speaker 05:
There's lots of recitation of what happened, what interactions there were, what requests for information, what responses to information they got, which might seem relevant to some people to the Supreme Court's test.

[01:03:25] Speaker 05:
That can be debated and argued, but

[01:03:27] Speaker 03:
Right, and I was getting to that next.

[01:03:30] Speaker 03:
No, you can disagree about whether the committee received one document or two documents that are both irrelevant.

[01:03:43] Speaker 03:
We got some token, tiny number of documents.

[01:03:46] Speaker 03:
So as far as what happened in accommodations, that's not material to this dispute.

[01:03:51] Speaker 03:
The Supreme Court notice

[01:03:53] Speaker 03:
never says anything about what this court should do on remand is look to see whether there have been sufficient accommodations.

[01:04:02] Speaker 03:
That's not noted anywhere.

[01:04:03] Speaker 05:
Would that not be arguably an element of reasonable necessity?

[01:04:08] Speaker 03:
It certainly could be, Your Honor.

[01:04:09] Speaker 03:
But again, the material fact is what Mr. Norris admitted to you earlier.

[01:04:14] Speaker 03:
They have given us

[01:04:18] Speaker 03:
Nothing.

[01:04:20] Speaker 03:
When I say nothing, again, they gave us some documents that are not on point.

[01:04:25] Speaker 03:
They're public information already.

[01:04:27] Speaker 03:
As far as what is in dispute here.

[01:04:30] Speaker 05:
Who's the they that you reference when you say that?

[01:04:33] Speaker 05:
I'm sorry?

[01:04:34] Speaker 05:
Who is the they who is not giving you any?

[01:04:36] Speaker 03:
Neither President Trump, nor GSA, nor Mazers.

[01:04:43] Speaker 05:
Well, he says you didn't ask the Trump organization.

[01:04:46] Speaker 03:
We did ask for materials.

[01:04:50] Speaker 03:
The main thing is, since this case has started- From the top organization?

[01:04:55] Speaker 05:
Sorry, from the top organization?

[01:04:57] Speaker 03:
Yes.

[01:04:58] Speaker 03:
Yes.

[01:04:59] Speaker 03:
And again, if I may, because this has come up in every one of the subpoena cases.

[01:05:06] Speaker 03:
And please bear with me for just a moment.

[01:05:08] Speaker 03:
This case, Deutsche Bank, census, tax returns, McGann, every time,

[01:05:15] Speaker 03:
The Justice Department and or President Trump have said accommodations.

[01:05:20] Speaker 03:
Each time we point out the same thing.

[01:05:22] Speaker 03:
They have never, President Trump has never been willing to produce any documents.

[01:05:31] Speaker 03:
And remember, he has said that.

[01:05:32] Speaker 03:
He said, we're not going to comply with subpoenas.

[01:05:35] Speaker 03:
So please ask Mr. Norris.

[01:05:38] Speaker 03:
I think you did this already, but it's the same thing I've said in every single court where I've argued these cases.

[01:05:45] Speaker 03:
ask counsel for the Justice Department or ask counsel for Mr. Trump, what are you talking about?

[01:05:51] Speaker 03:
Is Mr. Norris saying, okay, we'll give you the 2014 financial statements?

[01:05:57] Speaker 03:
No, they're not giving us anything.

[01:06:01] Speaker 03:
So the accommodation claim is a complete

[01:06:07] Speaker 03:
red herring, please do not be fooled by this.

[01:06:10] Speaker 03:
This comes up every single case we ask, we get nothing.

[01:06:15] Speaker 03:
So that's not, there's no dispute about whether as a legal matter, we need to do more accommodations.

[01:06:24] Speaker 03:
They are not producing anything.

[01:06:27] Speaker 03:
And again, you heard that from Mr. Norris.

[01:06:30] Speaker 03:
So that's not a material dispute.

[01:06:34] Speaker 03:
Material dispute is,

[01:06:35] Speaker 03:
would be if he said, Chairman Maloney didn't say this.

[01:06:41] Speaker 03:
If Chairman Maloney did say it, that's what is appropriate for this court and the Supreme Court's precedence.

[01:06:47] Speaker 03:
And that makes it just like Senate Select Committee.

[01:06:52] Speaker 01:
Mr. Lutter.

[01:06:54] Speaker 01:
In the Supreme Court's opinion, they expressed some serious concern that the committee could not identify any information about the president that could be related to potential legislation.

[01:07:07] Speaker 01:
So if we were to uphold the subpoena on, say, the Cummings memorandum,

[01:07:13] Speaker 01:
I mean, what would be the limits to what type of information the committee could seek?

[01:07:18] Speaker 01:
I mean, could they say they're interested in this president's health information because of his age or because he recently contracted the coronavirus?

[01:07:28] Speaker 01:
I mean, you know, what would be the limit?

[01:07:32] Speaker 03:
Can you identify one?

[01:07:37] Speaker 03:
That would depend on, you know, a different factual scenario.

[01:07:43] Speaker 03:
So if I may, and I don't, this obviously is not simply hypothetical.

[01:07:49] Speaker 03:
Suppose the president were going in for major surgery that would mean that he would be under, let's say it would be a situation where he would be put in a coma for a certain amount of time.

[01:08:02] Speaker 03:
As we know, there are plenty of major surgeries that do that.

[01:08:06] Speaker 03:
So the president was going to be in a coma for, let's say, at least a week or two weeks.

[01:08:12] Speaker 03:
If that were the circumstance, it would clearly, under some situations, be valid for Congress to inquire, whether by subpoena or otherwise,

[01:08:23] Speaker 03:
What is the health of the president?

[01:08:26] Speaker 03:
Is the president actually aware?

[01:08:28] Speaker 03:
That's not this case at all.

[01:08:29] Speaker 01:
But what would be the legislative purpose?

[01:08:31] Speaker 01:
So, I mean, I think one thing about the Supreme Court's test that's a bit tricky is that you have to identify why the president's like a particular president's information is reasonably necessary.

[01:08:43] Speaker 01:
To your legislative purpose, but the more you focus on the particular aspects of the president, right, whether it's his health or you know the briefs and the memos repeatedly say this president's actions with respect to his financial disclosures.

[01:08:59] Speaker 01:
Doesn't that then move into the category of cases that the Supreme Court says are inappropriate, right?

[01:09:06] Speaker 01:
Looking for potential law enforcement or exposure for the sake of exposure, right?

[01:09:12] Speaker 01:
The more you focus on a particular president's, you know, concerns about a particular president, you know, don't you start to move into that area, into the areas that the Supreme Court has said are inappropriate.

[01:09:25] Speaker 03:
Your honor, that question gets right to the heart of this remand.

[01:09:30] Speaker 03:
And so I'm very happy to address that.

[01:09:33] Speaker 03:
I think that's extremely key, and I suspect it's on the minds of all three of you.

[01:09:40] Speaker 03:
Yes, and remember, one of the main things we're looking at here are presidential conflicts of interest because of financial things.

[01:09:50] Speaker 03:
And Chairman Cummings made that clear, and Chairman Maloney explained that at great length.

[01:09:55] Speaker 03:
Congress has under the Constitution, Congress has power over foreign trade.

[01:10:04] Speaker 03:
Congress is asking, this committee is asking, what conflicts of interest do you have?

[01:10:13] Speaker 03:
Have you had, let's say in 2012, did you sign a letter of intent to build a hotel in Istanbul?

[01:10:23] Speaker 03:
enter into a contract in 2014 with Russian oligarchs.

[01:10:30] Speaker 03:
If we, if the answers to that, and we have no way of getting that information anywhere else, we don't know of any other way to get that.

[01:10:39] Speaker 03:
Let me step aside for just a second.

[01:10:41] Speaker 03:
As we know, there's been reporting, for instance, the New York Times, President Trump has said the Times, Mr. Cohen is a liar and the Times is wrong.

[01:10:50] Speaker 03:
Okay.

[01:10:50] Speaker 03:
So we're dealing with that.

[01:10:52] Speaker 03:
So your honor,

[01:10:53] Speaker 03:
Congress could say the president made a policy decision about what to do vis-a-vis trade with Turkey or trade foreign dealings with Russia or China.

[01:11:06] Speaker 03:
The oversight committee absolutely has authority to find out should we look into legislation to override those policy decisions because they were made as a result of personal financial interests of the president.

[01:11:23] Speaker 03:
And therefore we believe those policies should be overridden by legislation that is absolutely clearly within the power of Congress.

[01:11:35] Speaker 03:
So we need to know, the biggest thing here maybe is we need to know what kinds of financial arrangements that as we know that this president has extremely complex and opaque financial dealings

[01:11:52] Speaker 03:
We also know that in his financial disclosure statements, there have been very, very serious errors.

[01:12:00] Speaker 03:
So we need to know exactly for legislative purposes.

[01:12:05] Speaker 01:
Mr. Lutter, those arguments, I mean, I don't believe those arguments are ones that you made in your brief.

[01:12:11] Speaker 01:
I mean, you focused on potential disclosure legislation or relating to emoluments and GSA.

[01:12:18] Speaker 01:
But now you're saying that the president's

[01:12:21] Speaker 01:
You know, the alleged financial improprieties are leading to any number of other policy decisions that may need to be overridden.

[01:12:31] Speaker 03:
Your Honor, we absolutely made this argument a brief.

[01:12:35] Speaker 03:
I'm hoping that my colleague here can pull up page numbers for you.

[01:12:39] Speaker 03:
But we absolutely made that argument.

[01:12:41] Speaker 03:
And it is discussed at considerable length

[01:12:47] Speaker 03:
Chairwoman Maloney's statements, I believe.

[01:12:51] Speaker 03:
Let me just check.

[01:12:52] Speaker 03:
I think it's at page 31.

[01:12:53] Speaker 03:
It begins, I believe, at 31, and it goes on for several pages.

[01:13:04] Speaker 03:
So this rationale is definitely covered in our briefs and is in Chairwoman Maloney's statements.

[01:13:12] Speaker 03:
I'm told it's, oh, at page 24 of the Maloney memo is one of the places.

[01:13:17] Speaker 03:
And as I say, if you want, we can find exactly where we argued this in our briefs.

[01:13:22] Speaker 03:
This is a key, an absolutely key part of our case.

[01:13:25] Speaker 03:
So then other points, GSA, the under, the suspicion is raised by the press.

[01:13:34] Speaker 03:
And again, the president says they're wrong is that the GSA may not have been given

[01:13:42] Speaker 03:
the appropriate information, for instance, about how much profit is being made, or Mr. Trump's, remember the lease had certain provisions about Mr. Trump's personal financial situation that's in the lease.

[01:13:57] Speaker 03:
If that has been breached.

[01:13:58] Speaker 01:
And have you sought that information from GSA directly?

[01:14:01] Speaker 03:
We tried and we were told we get nothing.

[01:14:06] Speaker 03:
So again,

[01:14:08] Speaker 03:
This is a committee that is being extremely responsible.

[01:14:12] Speaker 03:
It has very good reasons why it is seeking this information.

[01:14:16] Speaker 03:
And nobody can possibly argue

[01:14:19] Speaker 03:
that the committee can't pass legislation governing GSA.

[01:14:24] Speaker 03:
It could provide the GSA inspector general who has expressed concerns about this very deal.

[01:14:31] Speaker 03:
The inspector general shall be given more money, more inspectors, more power.

[01:14:36] Speaker 03:
We can do that.

[01:14:37] Speaker 03:
We can say we could pass a legislation saying that there can be no contracts like this between.

[01:14:44] Speaker 01:
So you could pass such legislation without knowing the details of any

[01:14:50] Speaker 01:
particular problems that you might be suspicious of.

[01:14:54] Speaker 03:
And again, that's the very nub of this case, Your Honor.

[01:14:57] Speaker 03:
That is the claim.

[01:15:00] Speaker 03:
As this court and the Supreme Court have said, when Congress doesn't have full information, it's like shooting in the dark.

[01:15:06] Speaker 03:
Let me just say, this court could issue opinions based on less than all of the facts.

[01:15:11] Speaker 03:
If you were required by law to do it, you could do it.

[01:15:15] Speaker 03:
But that would not be ideal.

[01:15:17] Speaker 03:
Here, it is reasonably necessary for us to have the full information.

[01:15:22] Speaker 03:
And I'll say it one more time.

[01:15:23] Speaker 03:
Remember that we've obtained considerable information.

[01:15:28] Speaker 03:
President Trump has said that that information is wrong.

[01:15:32] Speaker 03:
It's inaccurate.

[01:15:33] Speaker 03:
It's lies.

[01:15:35] Speaker 03:
So surely nobody thinks that Congress should ignore the president.

[01:15:41] Speaker 03:
passed legislation that affects the presidents and the presidency based on information that the president says is wrong and lies.

[01:15:50] Speaker 03:
That can't possibly be what the Supreme Court or this court thinks is appropriate.

[01:15:56] Speaker 03:
So yes, we have some information.

[01:15:58] Speaker 03:
Is it correct?

[01:16:00] Speaker 03:
Some of it, but the president says it's wrong.

[01:16:04] Speaker 03:
So we need to find out what exactly is

[01:16:09] Speaker 03:
The situation with GSA, what exactly is the president's relationship with foreign countries, foreign companies, et cetera?

[01:16:20] Speaker 03:
What are the conflicts of interest?

[01:16:23] Speaker 03:
Is he, when he decided to do something or other with a trade agreement, was that influenced heavily by the fact that he has personal financial dealings?

[01:16:35] Speaker 03:
That's why we have disclosure.

[01:16:37] Speaker 03:
And by the way, I'm sorry, my colleague has just given me on the on this question you asked us in our brief to page 22 of our supplemental brief, it's covered at pages two, eight, 19 and 38.

[01:16:50] Speaker 03:
Okay, thank you.

[01:16:54] Speaker 01:
So the reasons that you were just giving, that you need to figure out precisely what happened, why are those not more like law enforcement or exposure related reasonings, which the Supreme Court has said are inappropriate?

[01:17:12] Speaker 01:
You know, getting at the nitty gritty of what happened is not usually what legislatures do, right?

[01:17:18] Speaker 01:
You know, legislating means enacting prospective rules for the future, not figuring out necessarily reconstructing the specific facts of what's happened in the past.

[01:17:30] Speaker 01:
So how do we think about that line, which the Supreme Court says exists and that we have to be concerned with?

[01:17:36] Speaker 03:
Yes, Your Honor.

[01:17:37] Speaker 03:
And remember, that argument, you recognize that.

[01:17:40] Speaker 03:
The prior panel opinion recognized this as a line to be concerned with, and you rejected the argument that President Trump was making.

[01:17:47] Speaker 03:
Let me give you one, the most obvious example that comes to my mind.

[01:17:52] Speaker 03:
Congress did a massive investigation of 9-11.

[01:17:57] Speaker 03:
Obviously, a significant part of that was about law enforcement, meaning what happened?

[01:18:02] Speaker 03:
Why did law enforcement not catch these people in advance, et cetera?

[01:18:06] Speaker 03:
What did they actually do?

[01:18:08] Speaker 03:
and what statutes should be passed in the wake of that.

[01:18:11] Speaker 03:
And there was all sorts of legislation.

[01:18:14] Speaker 03:
Very often, you need to know what happened in order to know what to pass for the future.

[01:18:20] Speaker 03:
And in this situation, as I said, it's not at all hypothetical.

[01:18:25] Speaker 03:
We know that President Trump, again, he has said these are wrong, but he at least has had certain financial dealings with foreign governments and foreign companies.

[01:18:37] Speaker 03:
the president also has had dealings with foreign policy and foreign trade, dealings with these countries.

[01:18:46] Speaker 03:
We need to know what happened because we need to know whether to pass legislation to override determinations that he made.

[01:18:57] Speaker 03:
Clearly, it's a mix.

[01:18:59] Speaker 03:
Obviously, as you point out, we'll be legislating for the future, but that includes

[01:19:04] Speaker 03:
That can include overriding something that was done before with GSA.

[01:19:08] Speaker 03:
We got into this terrible situation now where we have the president is both the landlord and the lessee.

[01:19:19] Speaker 03:
So how did we get, we need to find out is that what happened and why, and why did GSA allow that to happen?

[01:19:27] Speaker 03:
And so that we can decide should we pass legislation and exactly what should that legislation say so that this doesn't happen again?

[01:19:35] Speaker 03:
Or if there is a second term so that it gets ended?

[01:19:39] Speaker 03:
We can't have a situation where, or at least we need to know, do we have a situation where the president or say the secretary of state

[01:19:48] Speaker 03:
is both the contractor and the contractee.

[01:19:53] Speaker 03:
Surely that is an appropriate subject for Congress to investigate.

[01:20:00] Speaker 03:
And let me say one more time, this president's information is essential for that.

[01:20:08] Speaker 03:
Why is this different?

[01:20:10] Speaker 03:
Because other presidents, we got this kind of information, except, and here's another key point,

[01:20:17] Speaker 03:
In the Clinton administration, where he had provided tax returns, all sorts of financial information, but on two occasions it came out, he was getting gifts toward the end of his administration, and there were donations to a library, presidential upcoming presidential library.

[01:20:35] Speaker 03:
Congress asked about those.

[01:20:37] Speaker 03:
President Clinton, as all of his modern precedent presidents did, he provided the information.

[01:20:47] Speaker 03:
Jimmy Carter provided the information, et cetera.

[01:20:50] Speaker 03:
Other presidents have provided the information.

[01:20:52] Speaker 03:
The only reason we're here, as the Supreme Court recounts in the beginning of its opinion, the only reason we're here is because this president has refused to cooperate at all, unlike all of the modern prior presidents.

[01:21:09] Speaker 03:
That's why we're here.

[01:21:10] Speaker 01:
So, but if the situation is sui generis, then is it a circumstance for legislation?

[01:21:16] Speaker 03:
Absolutely.

[01:21:17] Speaker 03:
Again, suppose we have a trade deal that the president decided to end or didn't end.

[01:21:26] Speaker 03:
Yes, we can pass legislation overriding.

[01:21:28] Speaker 03:
Suppose, as I said, GSA, we can pass legislation to say the inspector general for GSA shall henceforth

[01:21:37] Speaker 03:
every three months demand from any GSA contractor, which would therefore now include the president, certain information, or GSA shall make sure that under no, any time a government lessee attains public office, the contract shall end.

[01:22:02] Speaker 03:
We can provide that by legislation, right?

[01:22:06] Speaker 03:
So these are all things that Congress needs to know as part of its oversight function in order to, which definitely can lead to legislation.

[01:22:17] Speaker 03:
And the last thing is the monuments.

[01:22:20] Speaker 03:
I know this court already ruled that, the Supreme Court didn't touch it, so we think it's there already.

[01:22:26] Speaker 03:
But let me just point out, the Constitution says that Congress can approve monuments.

[01:22:34] Speaker 03:
Foreign, not domestic.

[01:22:37] Speaker 03:
Well, so that's maybe Congress wants to pass a statute that defines the monuments.

[01:22:41] Speaker 03:
And we know that this is something Congress is interested in.

[01:22:44] Speaker 03:
We know its purpose because we've already done it, but based on incomplete information.

[01:22:50] Speaker 03:
We passed, the House passed the bill already, but it would be much better to pass a bill with full information.

[01:22:56] Speaker 03:
What exactly is the president getting from foreigners?

[01:22:59] Speaker 03:
What's he getting from foreign governments?

[01:23:02] Speaker 03:
will help us decide how to define emoluments, which the Constitution seems to provide to Congress.

[01:23:13] Speaker 04:
Any other questions, Judge Rao or Judge Malan?

[01:23:19] Speaker 04:
No.

[01:23:19] Speaker 04:
OK.

[01:23:19] Speaker 04:
Thank you.

[01:23:20] Speaker 04:
I'm sorry.

[01:23:21] Speaker 04:
Was that a yes or no?

[01:23:22] Speaker 01:
No.

[01:23:23] Speaker 04:
OK.

[01:23:24] Speaker 04:
Thank you, Mr. Leder.

[01:23:27] Speaker 04:
Mr. Norris, you were out of time, but you can have two minutes.

[01:23:31] Speaker 02:
Thank you, Judge Tatel.

[01:23:32] Speaker 02:
Just really one point in rebuttal.

[01:23:34] Speaker 02:
Under the Cummings record, the committee cannot satisfy the Supreme Court's four-part test.

[01:23:41] Speaker 02:
The Cummings memo that was attached to the subpoena has no specificity about the committee's legislative goals.

[01:23:49] Speaker 02:
Many of those goals and the ones that my friend just recounted do not even satisfy this court's litmus test that it specified in its prior opinion under a more lenient standard.

[01:23:59] Speaker 02:
They are not laws directed at the president regulating presidential finances.

[01:24:04] Speaker 02:
To the extent the subpoena does pursue those types of laws, there is no, it does not justify the significant step of involving the president.

[01:24:12] Speaker 02:
Those are basic policy judgments that cases like Senate select say you do not need to get what the committee calls a detailed understanding of the president's financials.

[01:24:24] Speaker 05:
Would you agree that

[01:24:26] Speaker 05:
If Congress is going to pass legislation that regulates the president, I don't mean the individual president, I just mean the position of the president or the office of the presidency.

[01:24:38] Speaker 05:
The Congress needs to step carefully and draw lines carefully, sort of needs to walk a fine line there that it may not need to when regulating other folks in the executive branch or

[01:24:53] Speaker 05:
I mean, they're going to have to.

[01:24:55] Speaker 05:
Would you agree with that?

[01:24:56] Speaker 05:
I assume your client would insist, constitutionally, they have to be as careful as possible.

[01:25:00] Speaker 02:
Yes.

[01:25:02] Speaker 05:
Don't you need precise facts of what exactly the problem is to ensure you toe that line or walk that line?

[01:25:13] Speaker 05:
In judgment, I think facts.

[01:25:16] Speaker 02:
I do not believe to determine whether you should require precise values instead of ranges or whether how far back the disclosure laws should go or what kinds of information that they should disclose.

[01:25:26] Speaker 02:
I do not believe you need what the committee calls a detailed understanding of the extent and complexity of the president's finances.

[01:25:33] Speaker 02:
I believe that's still overstepping.

[01:25:35] Speaker 05:
And there is a narrow... They can't shoot in the dark, right?

[01:25:38] Speaker 05:
They can't sort of make assumptions based on other executive branch officials, I assume you would say, that they really need to understand the nature of this precise problem and target that with the legislation, because overshooting could have its own constitutional consequences.

[01:25:55] Speaker 05:
We do not want them to overshoot, but we do think that... Sure, so really understanding exactly the nature of the problem is important.

[01:26:03] Speaker 02:
Yes, Your Honor.

[01:26:04] Speaker 02:
In the morning memo, it's clear to me that the committee already believes it understands the nature of the problem.

[01:26:10] Speaker 02:
It describes the problem as glaring and obvious are words that it uses in that memo.

[01:26:16] Speaker 02:
And it's already pinpointed the precise legislative solution.

[01:26:18] Speaker 05:
That there's some problem there, right?

[01:26:20] Speaker 05:
I think they would say there's plenty of smoke.

[01:26:24] Speaker 05:
But we really consider it incumbent upon us to understand the source of the fire.

[01:26:29] Speaker 02:
And your honor, I think this directly answers your question.

[01:26:32] Speaker 02:
I think this is important why there should be a subpoena directed to us for the Mazars documents, which has never, never been issued or even suggested, or even been an informal document request to us for this.

[01:26:44] Speaker 02:
It's because in the accommodation process, there are plenty of ways for us to work together and discuss

[01:26:49] Speaker 05:
How to frame legislation and why we made certain they don't need to ask your opinion on legislation.

[01:26:55] Speaker 05:
That's not what the Supreme Court said.

[01:26:56] Speaker 05:
I just, I'm curious about your insistence that they needed to work more with the Trump Organization.

[01:27:03] Speaker 05:
And just so we don't blink reality here.

[01:27:05] Speaker 05:
The President really has not been

[01:27:11] Speaker 05:
very accommodating of a subpoena request in the White House or in other agencies.

[01:27:17] Speaker 05:
And in fact, it's flatly forbidden any compliance whatsoever in some situations.

[01:27:25] Speaker 05:
Are you telling me that the issue here is that what the president wanted was just to ask the Trump organization and then everything would change, that there would be a different accommodation in the form of

[01:27:37] Speaker 05:
maybe not complete, that's what an accommodation is, but relevant disclosures that the Trump organization would do what President Trump and the White House and agencies at his direction have not done in the accommodation process?

[01:27:51] Speaker 05:
That's your position.

[01:27:52] Speaker 02:
Two answers.

[01:27:53] Speaker 02:
First, we do have a dispute about how accommodation has gone so far.

[01:27:57] Speaker 02:
When my friend says that we've provided nothing in response to his request.

[01:28:01] Speaker 02:
He means we provided a briefing provided 15,000 pages of documents that he subpoenaed the Secret Service and DoD who complied fully

[01:28:10] Speaker 02:
he asked for documents.

[01:28:13] Speaker 05:
He asked for information about the Trump hotel and he got fire alarm testing, which really was not the question at issue.

[01:28:19] Speaker 05:
They don't say in the Maloney memo that nothing has come forward.

[01:28:27] Speaker 05:
It's just what they most need to legislate in the very careful way that you said.

[01:28:33] Speaker 05:
is constitutionally required here.

[01:28:36] Speaker 05:
And so what I'm asking you is a different question.

[01:28:38] Speaker 05:
I understand I've written down that that's one of your factual disagreements with the Maloney memorandum.

[01:28:46] Speaker 05:
What I'm asking you is a different question.

[01:28:47] Speaker 05:
And is there any basis in this record or any representation you would make as an officer of the court that the substantive accommodation and the forms of sharing requested information would be any different

[01:29:04] Speaker 05:
from the Trump Organization than it's been from President Trump, from the White House, and from federal agencies.

[01:29:12] Speaker 02:
We believe a direct request to us could very well work out differently.

[01:29:18] Speaker 05:
I don't want could.

[01:29:19] Speaker 05:
Could is just a hypothetical.

[01:29:21] Speaker 02:
Judge Muller, I don't have authority.

[01:29:22] Speaker 05:
Yes, they would.

[01:29:23] Speaker 05:
OK, right.

[01:29:25] Speaker 02:
At the podium here today.

[01:29:26] Speaker 02:
I will say that there are obvious narrower alternatives, including asking us for, you know, in-camera review of the relevant documents or asking us for just to answer particular questions like what should the range be or what would the range be?

[01:29:40] Speaker 02:
You know, why did you answer a question this way?

[01:29:41] Speaker 02:
Why did you believe that this is the way you're saying?

[01:29:43] Speaker 05:
Does the House have a right to verify things on its own?

[01:29:48] Speaker 05:
Actually verify information given to it before it uses it as a basis for legislation?

[01:29:53] Speaker 02:
Yes.

[01:29:54] Speaker 05:
Okay.

[01:29:56] Speaker 02:
But our position is that the President of the United States is the last place they should turn, not the first.

[01:30:03] Speaker 04:
Sure.

[01:30:03] Speaker 04:
Okay.

[01:30:05] Speaker 04:
Unless my colleagues have any other questions.

[01:30:07] Speaker 05:
I'm sorry, Doug Leonard's got his hand up.

[01:30:11] Speaker 05:
Go ahead.

[01:30:12] Speaker 04:
All right.

[01:30:16] Speaker 04:
If you're going to say anything, I'm going to give Mr. Norris a chance to respond.

[01:30:21] Speaker 03:
That's absolutely fine.

[01:30:22] Speaker 03:
Judge Rao asked a factual question of Mr. Norris that I have the answer to, and I apologize I didn't get to it.

[01:30:30] Speaker 03:
May I just answer Judge Rao's factual question, Your Honor?

[01:30:33] Speaker 03:
And yes, Judge Rao, you had asked about resolutions and their relationship to House rules.

[01:30:43] Speaker 03:
The way

[01:30:44] Speaker 03:
the House amends its rules during the session is by resolutions.

[01:30:52] Speaker 03:
So for instance, in the case involving the remote voting by proxy that is before this Gordon McCarthy case, the House passed a resolution that changed the rules for the remainder of the time of the Congress.

[01:31:06] Speaker 03:
So I didn't want there to be any confusion.

[01:31:08] Speaker 03:
A resolution is the way that the House changes its rules.

[01:31:12] Speaker 04:
Mr. Norris?

[01:31:14] Speaker 04:
Would you like an extra minute or two?

[01:31:15] Speaker 02:
We don't have anything further, Judge Tatel.

[01:31:18] Speaker 02:
We just ask the district court be either reversed or vacated and repanted.

[01:31:22] Speaker 04:
OK.

[01:31:23] Speaker 04:
Thank you.

[01:31:23] Speaker 04:
Mr. Norris, Mr. Lutter, thank you both.

[01:31:25] Speaker 04:
The case is submitted.