[00:00:00] Speaker 00:
Case number 21-5176, Ed Al.

[00:00:03] Speaker 00:
Donald J. Trump, Ed Al, at balance, versus Mazar USA, LLP, and Committee on Oversight and Reform of the U.S.

[00:00:10] Speaker 00:
House of Representatives.

[00:00:11] Speaker 00:
Mr. Norris for the at balance.

[00:00:13] Speaker 00:
Mr. Leder for the appellee, Committee on Oversight and Reform of the U.S.

[00:00:16] Speaker 00:
House of Representatives.

[00:00:19] Speaker 04:
Good morning, counsel.

[00:00:19] Speaker 04:
Mr. Norris, please proceed when you're ready.

[00:00:22] Speaker 05:
Good morning, Chief Judge Cernovost, and may it please the court.

[00:00:25] Speaker 05:
The committee says it needs a detailed understanding and full accounting President Trump's finances in order to legislate.

[00:00:33] Speaker 05:
No prior Congress has demanded this kind of information, but every future Congress will if this court upholds the subpoena.

[00:00:40] Speaker 05:
There's no principled way to limit the fallout to President Trump.

[00:00:43] Speaker 05:
Every house will be able to cite something supposedly unprecedented about every president to justify intrusive subpoenas to him, his family, and his businesses.

[00:00:53] Speaker 05:
That result will be a major departure from our constitutional tradition.

[00:00:56] Speaker 05:
One way to stop it is to clarify that these subpoenas must satisfy heightened scrutiny.

[00:01:01] Speaker 05:
But heightened scrutiny won't mean anything unless this court also holds that this subpoena fails it.

[00:01:06] Speaker 05:
If heightened scrutiny means anything at all, it means that the committee must consider the broad reforms it's already identified without every shred of President Trump's financial information.

[00:01:16] Speaker 05:
And it also means that the committee cannot go combing through his finances

[00:01:19] Speaker 05:
in the hopes of finding unknown errors that might inspire unknown legislation.

[00:01:24] Speaker 03:
Also, can I just ask you about the contention that these kinds of subpoenas must withstand heightened?

[00:01:36] Speaker 03:
I'm curious about the application of that principle in the context of a former president.

[00:01:43] Speaker 03:
Why is it that you say that heightened scrutiny applies under these circumstances?

[00:01:49] Speaker 05:
So we have arguments that you should treat this as a subpoena that was issued in 2019.

[00:01:53] Speaker 03:
I'm sorry, I couldn't quite hear you.

[00:01:55] Speaker 05:
We have arguments that you should treat the subpoena as if it was issued in 2019, but I'll set that aside for a moment, answer your direct question.

[00:02:02] Speaker 05:
If this is a subpoena to a former president, in the peculiar circumstances of this case, it's still to get full heightened scrutiny under Mazars.

[00:02:09] Speaker 05:
And the reason is the holding of Mazars was that this type of subpoena receives heightened scrutiny because it's suspicious.

[00:02:17] Speaker 05:
comes from a rival.

[00:02:19] Speaker 05:
It asked for personal papers that have a less evident connection to legislation.

[00:02:23] Speaker 05:
It asked for sensitive information that could be quite damaging and used for harassment.

[00:02:27] Speaker 05:
The court said all of that about this exact subpoena and reissuing it verbatim in 2021 did not possibly cleanse it of the suspicious qualities that trigger heightened scrutiny in the first place.

[00:02:39] Speaker 03:
Oh, I'm sorry.

[00:02:39] Speaker 03:
I didn't, I didn't appreciate that from the Supreme courts.

[00:02:42] Speaker 03:
I thought they were talking about the separation of powers and the concern that Congress would have some leverage over a sitting president.

[00:02:50] Speaker 03:
Um, and that that was, it was sort of a separation of powers kind of issue as opposed to necessarily, uh, something wrong about the nature of the subpoena or the Congress that was issuing it.

[00:03:01] Speaker 05:
Well, I think the court said both.

[00:03:02] Speaker 05:
So,

[00:03:03] Speaker 05:
Of course, any subpoena to a sitting president is going to trigger Mazars.

[00:03:06] Speaker 05:
We agree with that.

[00:03:07] Speaker 05:
But my friends, really the debate in Mazars was whether there's something about this subpoena that makes it not suspicious or does not trigger the separation of powers.

[00:03:15] Speaker 05:
And the court said, no, this specific subpoena is also problematic because it seeks, I think it said we would have to be blind not to see that this is a clash between rivals over records, President Trump's finances that are of intense political interest.

[00:03:27] Speaker 04:
But it is rival branches, right?

[00:03:29] Speaker 05:
It's not rivals, it's rival branches.

[00:03:32] Speaker 05:
Right.

[00:03:32] Speaker 05:
The case was about it was the case was decided when he was president.

[00:03:35] Speaker 05:
But I think the animating principle, why would you subject these to heightened scrutiny?

[00:03:39] Speaker 05:
You know, normally Congress gets lots of deference, lots of presumptions in its favor when it issues subpoenas.

[00:03:43] Speaker 05:
And I think the reason

[00:03:44] Speaker 05:
the court gave in the case was that then there's something different about these that makes them makes it makes us not want to be so solicitous to Congress as we normally are.

[00:03:52] Speaker 03:
And it's not that it's not the fact that there were different branches at issue.

[00:03:56] Speaker 03:
I thought there was a constitutional principle that the Supreme Court was trying to articulate, not a political one about the fact that we might have people from different political parties involved.

[00:04:09] Speaker 03:
And that the latter is what you seem to be focused on.

[00:04:12] Speaker 05:
Well, it wouldn't just be politics.

[00:04:14] Speaker 05:
Politics would not be enough to trigger heightened scrutiny.

[00:04:16] Speaker 05:
But President Trump, the target of this subpoena was former president.

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And the important part about this case is this subpoena was issued while he was president.

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It is an unusual case.

[00:04:26] Speaker 03:
I'm sorry.

[00:04:27] Speaker 03:
So my question wanted to focus on former president.

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and your answer seemed to be there's something suspicious about this subpoena.

[00:04:38] Speaker 03:
And I'm trying to sort of flesh that out because I didn't see that in the Supreme Court's opinion in the same way that you did.

[00:04:43] Speaker 03:
So can you tell me, are we looking at certain subpoenas differently than we would other subpoenas because there's something suspicious about them?

[00:04:54] Speaker 03:
Is that what you're suggesting that the courts need to do?

[00:04:57] Speaker 05:
I think in the unusual circumstance where a president is subpoenaed while he was president and Congress continues to pursue that invest investigation while he leaves office, you're going to have whatever separation of powers concerns were with the original subpoena.

[00:05:10] Speaker 05:
They don't go away because it was reissued.

[00:05:12] Speaker 03:
But what are they?

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That's the question.

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What are the concerns in the aftermath?

[00:05:16] Speaker 05:
I understand.

[00:05:17] Speaker 05:
So really it's, you know, there's a chilling effect.

[00:05:19] Speaker 05:
Um, what happens to you after you leave office can affect how you deal with Congress when you're in office.

[00:05:24] Speaker 05:
That's what Nixon versus Fitzgerald says.

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Nixon versus GSA says about executive privilege.

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The same is true of intrusive demands for your personal papers.

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It would affect how you deal with Congress if you knew that they could expose your entire financial history to the public as soon as you leave office.

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That threat would loom large.

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over everything you're doing.

[00:05:41] Speaker 05:
It also would allow Congress to influence who can run for president, who can be president, because they would be allowed to expose this type of information to influence that process as well.

[00:05:48] Speaker 03:
But you're assuming that's the intent or the motivation or what Congress is trying to do.

[00:05:54] Speaker 03:
And I guess that's the part that I'm a little unsure of.

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I mean,

[00:06:02] Speaker 03:
I'm worried about another kind of separation of powers problem, I think, which is applying heightened scrutiny to prevent Congress from doing its work.

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So I guess you would agree with me, or I assume you would agree with me, that Congress has a duty to protect the Republic from threats, both foreign and domestic.

[00:06:27] Speaker 03:
Is that pretty well established?

[00:06:29] Speaker 03:
I think so.

[00:06:30] Speaker ?:
Correct.

[00:06:30] Speaker 03:
So in a situation in which Congress perceives that there may have been threatening behavior, misbehavior, problems in the White House, one would think that in the aftermath of that administration, that is exactly the time in which Congress would be evaluating whether the legislative scheme was sufficient to prevent that sort of thing from happening in the future.

[00:06:57] Speaker 03:
And what I'm worried about is that when we apply heightened scrutiny in the aftermath to prevent Congress from getting the precise kinds of information that it would need to shore up its legislation to prevent those kinds of threats, you've actually created a problem in which the executive is encroaching on the prerogatives of Congress.

[00:07:20] Speaker 03:
So can you speak to that?

[00:07:22] Speaker 03:
Can you give me the root?

[00:07:23] Speaker 03:
Because we think about separation of powers traditionally as the other branches encroaching on the executive, or at least that's the way it's often pitched.

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But I think when we have co-equal branches of government, we also have to worry about whether the other branches are encroaching on the prerogatives of Congress.

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And so I'm concerned that when a president leaves and we're in the aftermath and Congress thinks there may have been a problem, just like they would in any other situation in which there's a problem, they have the duty to go in to find the information and to try to figure out whether there is legislation that can solve the problem.

[00:08:01] Speaker 03:
So why isn't that the situation here?

[00:08:03] Speaker 03:
And don't we have a different kind of separation of powers issue?

[00:08:06] Speaker 05:
I understand all that, Judge Jackson.

[00:08:08] Speaker 05:
I don't disagree with a lot of that, but I think Mazars, all we're asking for is application of the Mazars test.

[00:08:13] Speaker 05:
Mazars itself is a balanced

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approach.

[00:08:15] Speaker 05:
It said it takes account of the fact that there are some reasons to be suspicious of what's going on in these circumstances, but it also takes into account the fact that Congress might need information to legislate.

[00:08:24] Speaker 03:
But if Maisers is with a sitting president, then that makes sense, right?

[00:08:29] Speaker 03:
The balance is the concern that Congress is swooping in while the president is in office.

[00:08:36] Speaker 03:
And so we have to apply this heightened standard in that situation because it really does impinge or could impinge on the executive.

[00:08:44] Speaker 03:
I'm talking about the aftermath.

[00:08:46] Speaker 03:
What's the justification for applying a heightened standard to prevent Congress from doing the kind of work it would ordinarily do to evaluate legislative options in the aftermath?

[00:08:58] Speaker 05:
Sure.

[00:08:59] Speaker 05:
And so, you know, well, I have the quibble that this is a subpoena that came, you know, that they patiently waited until he left office and then subpoenaed him then.

[00:09:05] Speaker 05:
I mean, he subpoenaed him while he was in office.

[00:09:08] Speaker 05:
My friend will tell you that they can satisfy the Mazars test, which means they think you can do this to a sitting president as well.

[00:09:13] Speaker 05:
So the stakes are a little different in this case.

[00:09:15] Speaker 05:
But, you know, Nixon versus Fitzgerald says that presidents are tempting targets.

[00:09:18] Speaker 05:
That's a case about a former president who was sued for something he did well in office.

[00:09:22] Speaker 05:
They're tempting targets.

[00:09:23] Speaker 05:
As soon as they leave office, they were the most recent rival of Congress.

[00:09:31] Speaker 05:
Congress can legislate, of course, but Congress in our entire history has never thought that it could subpoena a decade's worth of a president's financial information and expose it to the public.

[00:09:40] Speaker 05:
This subpoena is just a particularly bad example for the serious concern that Your Honor raised about hamstringing Congress.

[00:09:48] Speaker 04:
If you didn't have the subpoena pending at the time that the president was in office,

[00:09:53] Speaker 04:
and Congress waits, the committee waits until after the president leaves and then so it's a former president from the beginning, then would you still be making the same argument?

[00:10:05] Speaker 05:
We would in this case, and there's a couple of special features here.

[00:10:08] Speaker 05:
My friend would tell you that President Trump received the subpoena because he was president.

[00:10:13] Speaker 05:
He would never have gotten it if he never served.

[00:10:14] Speaker 05:
So it is about the branches still.

[00:10:17] Speaker 05:
And the thing that they claim to be studying is legislation that would restrict the president's powers.

[00:10:22] Speaker 05:
There's still an inter-branch conflict in this case, given the rationales

[00:10:25] Speaker 05:
that they've asserted and you know this is this is not forever going to hamstring and in case in other cases involving other subpoenas Dixon versus GSA says the separation of powers concerns that apply to former presidents erode over time but there's zero time that has passed here as soon as he left office that's when this subpoena was issued was issued because he was president it was issued while he was president it was issued in order to study legislation that would restrict the presidency but the this court got into some of this and the Thompson

[00:10:53] Speaker 04:
decision that came down last week and in a situation in which the subpoena only arises after the president has left office, then there is another president who's in office at that time.

[00:11:05] Speaker 04:
Correct.

[00:11:06] Speaker 04:
So the considerations in terms of the separation of powers between the branches shifts because you do have a, the executive and the legislature and the person who's the subject of the subpoena and the entities associated with that person are neither of those.

[00:11:24] Speaker 05:
Correct.

[00:11:24] Speaker 05:
That's a difference.

[00:11:25] Speaker 05:
But, you know, we're talking about a chilling effect on the current incumbents, you know, operations vis-a-vis Congress.

[00:11:33] Speaker 04:
So that's what it's really, what it really boils down to.

[00:11:35] Speaker 04:
And I think that that has some support that you could have the overhang of a future subpoena affect the conduct of a sitting president.

[00:11:45] Speaker 04:
That, at least conceptually, is a separation of powers issue.

[00:11:49] Speaker 04:
But that seems to me to be where the focus of the argument

[00:11:52] Speaker 04:
or you would be is that that's the separation of powers that continues to be implicated even after the president has left office.

[00:12:00] Speaker 05:
That's right.

[00:12:01] Speaker 05:
Just turn of Austin.

[00:12:01] Speaker 05:
My point is really that in this case there's no erosion and he really should be up to a mazar's level of scrutiny because it was issued while he was in office, continued to be pursued because he held the office.

[00:12:10] Speaker 05:
But I would just note to that point, this is not an executive privilege case where we sort of know the Biden administration's position because it didn't assert executive privilege over the materials.

[00:12:19] Speaker 05:
We don't know the Biden administration's position about this case.

[00:12:23] Speaker 05:
And in fact, the last time the justice department spoke about this case, it's submitted amicus brief in our favor.

[00:12:28] Speaker 03:
I don't know if that helps you or hurt you.

[00:12:29] Speaker 03:
That's what I'm trying to figure out.

[00:12:31] Speaker 03:
All right.

[00:12:32] Speaker 03:
So we have a person who is now a private individual.

[00:12:37] Speaker 03:
He was a private individual before he became the president.

[00:12:41] Speaker 03:
He is now back as a private individual and you seem to be

[00:12:46] Speaker 03:
trying to carve out a special status for him as a former or post president.

[00:12:54] Speaker 03:
that I haven't really seen in the same way in the law.

[00:12:57] Speaker 03:
And the other part that worries me in addition to the separation of powers concerns is whether that's really consistent with the rule of law and the peaceful and full complete transfer of power.

[00:13:10] Speaker 03:
That someone who used to be a private person becomes the president and returns to a private person is very fundamental in our constitutional system.

[00:13:21] Speaker 03:
And yet somehow now you say if a subpoena comes to him in his post presidency and the legislature establishes a reason for it, I know that you quibble with whether or not it's a good reason, but they have a reason and they would ordinarily be able to get this kind of information.

[00:13:38] Speaker 03:
We should still say that they can't get it from him.

[00:13:42] Speaker 03:
And I'm trying to understand why that is what makes him so different or special that he gets

[00:13:49] Speaker 03:
this kind of accommodation that other people in private life don't.

[00:13:55] Speaker 05:
So this court in the public citizen case, I believe we cite in our brief, says former presidents do retain some aspects of their prior office.

[00:14:03] Speaker 05:
There's a DDC opinion called Poindexter that says at least when Congress is investigating presidential matters, disputes with former presidents still do implicate the separation of powers.

[00:14:15] Speaker 05:
admit that Nixon versus GSA says that those concerns erode over time.

[00:14:18] Speaker 05:
And so if this was a subpoena to three presidents ago, we may not be having this discussion.

[00:14:23] Speaker 05:
This one, there's been no erosion, and they're still trying to investigate president-specific matters.

[00:14:29] Speaker 05:
And that's the difference to us.

[00:14:32] Speaker 03:
Even though they're personal papers of his, they're not presidential papers.

[00:14:35] Speaker 05:
It's not a personal subpoena.

[00:14:37] Speaker 05:
This is not a subpoena that they issued to, say, real estate developers.

[00:14:40] Speaker 05:
Then he became president and they had to put it on hold.

[00:14:42] Speaker 05:
Now they're back to investigating real estate.

[00:14:45] Speaker 05:
This is a subpoena about the presidency because he was president.

[00:14:48] Speaker 05:
This is a particularly good example of why former presidents are not exactly treated like private citizens, at least in this limited circumstance.

[00:14:55] Speaker 01:
Well, let me ask you then, the district court I think was sensitive to arguments you're making regarding one track of this subpoena.

[00:15:10] Speaker 01:
And as I understand, he embraced the ideas that you have been discussing so far this morning.

[00:15:19] Speaker 01:
at least to the financial track and pointed out that, you know, current ethics laws require the disclosure of so much information

[00:15:33] Speaker 01:
before one is a president, when one is a candidate, and then of course upon becoming president, and then periodic updates while president.

[00:15:46] Speaker 01:
So why isn't the effort of the district court

[00:15:52] Speaker 01:
to address points that you're making reasonable here, basically saying have tons of information already, or at least the law requires that a lot of personal financial information be disclosed.

[00:16:12] Speaker 01:
That as to the other two tracks, there is a different way to look at those tracks, and the district court did.

[00:16:23] Speaker 01:
Is your position, and I understand your first position is it's all or nothing, but suppose you had to consider the various tracks of this subpoena.

[00:16:39] Speaker 01:
Would that make any difference to your argument?

[00:16:46] Speaker 05:
Judge Rogers, our position is that you can't look at the separate tracks.

[00:16:50] Speaker 05:
You look at the subpoena.

[00:16:51] Speaker 05:
The subpoena implicates the separation of powers or not.

[00:16:54] Speaker 05:
That's what the Supreme Court did in Mazars.

[00:16:56] Speaker 05:
It was fully aware of what it called the broad legislative objectives, including the GSA rationale and the emoluments rationale.

[00:17:03] Speaker 01:
For the subpoena.

[00:17:04] Speaker 01:
I know you don't want to accept the premise of the question, but the premise of the question was as to the financial papers, I thought the district court was taking into account the very types of arguments you're making today with respect to everything requested by the subpoena and tried to draw distinctions.

[00:17:24] Speaker 01:
And I understand your first line of argument is can't do that, but I'm pressing you.

[00:17:30] Speaker 01:
Suppose the court

[00:17:33] Speaker 01:
decides it is appropriate to do that for some of the reasons that the other judges my colleagues have raised this morning, what would your response be anything particular.

[00:17:50] Speaker 05:
Well, Judge Rogers, we think that these tracks fail even the ordinary standard that would apply to private citizens.

[00:17:56] Speaker 05:
But I would note that no one in this case is arguing that that standard applies.

[00:17:59] Speaker 05:
The committee says you should apply Nixon versus GSA, which is a form of heightened scrutiny.

[00:18:03] Speaker 05:
It may not be as heightened, but it's a form of one.

[00:18:06] Speaker 05:
The Department of Justice in the parallel federal tax returns case says you should apply Mazars Light across the board in that case, which is a concession that separation of powers are involved here.

[00:18:14] Speaker 05:
But if you're applying some form of heightened scrutiny, wherever you fall on the scale, we still think those rationales, which I believe you're referring to the GSA rationale and the emoluments rationale, those still fail the factors that you would consider under any version of heightened scrutiny.

[00:18:28] Speaker 05:
And I'm happy to go through those rationales independently.

[00:18:31] Speaker 01:
And by that, you're equating that with the Mazers test.

[00:18:36] Speaker 01:
Am I correct?

[00:18:38] Speaker 01:
In other words, you're not saying more than Mazers.

[00:18:44] Speaker 05:
Correct.

[00:18:46] Speaker 05:
Under Mazars, one of the easiest examples of this is my friend says that the committee is studying the bidding process for the GSA lease.

[00:18:56] Speaker 05:
He's also studying whether President Trump may have made misrepresentations

[00:19:00] Speaker 05:
on specific certifications for 2013 to 2016 that were made part of the leasing process.

[00:19:05] Speaker 05:
And they say they're studying emoluments.

[00:19:07] Speaker 05:
This subpoena doesn't ask for documents that went into the bid.

[00:19:10] Speaker 05:
It doesn't ask for documents that went into the certifications.

[00:19:13] Speaker 05:
It doesn't ask for emoluments.

[00:19:14] Speaker 05:
However you define emoluments, it's not limited to those investigations at all.

[00:19:18] Speaker 05:
It's over broad under.

[00:19:19] Speaker 04:
So can I ask about the financial disclosure track?

[00:19:23] Speaker 04:
So on that one, here's the committee's argument, as I understand it, is that

[00:19:30] Speaker 04:
There are concerns that we have about the extent to which existing financial disclosure laws adequately capture the range of assets that a president may have.

[00:19:41] Speaker 04:
And this former president's complicated financial arrangements highlight that.

[00:19:45] Speaker 04:
And we need to be sure that our disclosure statutes adequately capture the full range of possibilities that a president in terms of the financial arrangements that a president might have.

[00:19:56] Speaker 04:
The best way to know whether we're capturing those is to look at

[00:20:00] Speaker 04:
possible and I think the committee would say in its view likely gaps that are exhibited by the former president's financial arrangements in the ability of the disclosure regime to adequately ferret out the source of assets that that president has.

[00:20:13] Speaker 04:
And the only way we can understand that is to look at the underlying financial paper so we can get a good read of what's going on and that will inform us as to the kinds of revisions that we may need to implement vis-a-vis these financial disclosure laws.

[00:20:27] Speaker 04:
going forward for future presidents.

[00:20:29] Speaker 04:
What's wrong with that?

[00:20:30] Speaker 05:
May I answer?

[00:20:31] Speaker 05:
Yeah, yeah, definitely.

[00:20:32] Speaker 05:
Um, so under heightened scrutiny, any form of heightened scrutiny, one problem with that is the Supreme Court told you need to consider the opportunities for institutional advantage and the long term incentives.

[00:20:41] Speaker 05:
The problem with that disclosure rationale is it's utterly limitless.

[00:20:45] Speaker 05:
You could say we are considering gaps in so and so disclosure law, or we want to pass a new disclosure law that says presidents should have to disclose their medical records because we're concerned about their health office.

[00:20:54] Speaker 05:
And because we're concerned with that, we want to see this president's medical records or financial records or tax records or anything.

[00:21:01] Speaker 05:
the study disclosure laws.

[00:21:02] Speaker 05:
You could say that about anything.

[00:21:03] Speaker 05:
I'm sorry.

[00:21:06] Speaker 03:
Uh, I was just going to quickly ask, does it matter whether they say that and they have the same broad subpoena in the wake of, uh, evidence about certain kinds of problems?

[00:21:17] Speaker 03:
So it's judge Srinivasan's chief judge Srinivasan's example, but instead of just saying, we think there are gaps in financial disclosures, they point to, um,

[00:21:29] Speaker 03:
a number of times during the Trump administration in which information came to light about his finances or about business arrangements that they think could possibly pose ethics problems, but that weren't disclosed in his financial disclosures.

[00:21:44] Speaker 03:
So we have a context in which it's not like they just woke up one morning and said, let us study something.

[00:21:50] Speaker 03:
They say, here's a bunch of ways in which this president's dealings in particular

[00:21:57] Speaker 03:
raise some red flags for us about ethical problems.

[00:22:01] Speaker 03:
And so what we need to do is see what his records show so that we can legislate about that.

[00:22:07] Speaker 03:
Does that make a difference?

[00:22:08] Speaker 05:
In my, uh, the Thompson case from this court a few days ago said it emphasized that the court thought that there was a actual predicate for the committee.

[00:22:16] Speaker 04:
So that is what you have here because I think the committee has laid out what it thinks is the factual predicate.

[00:22:21] Speaker 04:
for and undertaking this inquiry.

[00:22:23] Speaker 04:
And then so if that's the case, then what's wrong with that sequence of analysis to get to the conclusion that the committee wants to urge on us, which is that that means that at least under the financial disclosure rationale, we should have access to financial statements so that we can figure out what kind of legislative amendments we may need to implement.

[00:22:41] Speaker 05:
So at least under heightened scrutiny, that evidence is subject to judicial review.

[00:22:45] Speaker 05:
That evidence is nonexistent in this case.

[00:22:48] Speaker 05:
The committee says, and I think this is the sum total of the evidence, that there was a loan to Michael Cohen in 2017 that was not disclosed, and it was later disclosed.

[00:22:57] Speaker 05:
But they've submitted a separate request for that information, and this subpoena has nothing to do, would not reveal any information about what happened there.

[00:23:04] Speaker 05:
It's not calculated to at all.

[00:23:06] Speaker 05:
The other evidence is that Michael Cohen said that when you were a private citizen, you may have inflated or deflated assets when you're bidding for the Buffalo Bills or when you were talking to New York tax authorities.

[00:23:17] Speaker 05:
Then they're using that to say, well, if he did that there, he must have done it on his financial disclosure reforms without pointing to anything on the financial disclosure reforms that is even suspicious.

[00:23:26] Speaker 05:
And if you were worried about the financial disclosure reforms, which I think we can all agree that the committee has no legitimate interest in figuring out whether the representations to the Buffalo Bills were accurate or not.

[00:23:36] Speaker 05:
It has to be about what he told the public in his financial disclosure reforms.

[00:23:41] Speaker 05:
This subpoena doesn't say, give us the source documents that go into the financial disclosure reforms so we can test their accuracy.

[00:23:48] Speaker 05:
It goes all the way back to 2011.

[00:23:50] Speaker 05:
and tries to test the accuracy of those financial statements he made when he was a private citizen that that Mazars drafted up form.

[00:23:56] Speaker 04:
It doesn't suppose that suppose then that it were paired back to in terms of the temporal part of it so that it coincides with the financial disclosures that are required by existing law.

[00:24:05] Speaker 04:
So I think which would start in 2014.

[00:24:06] Speaker 04:
That's right.

[00:24:08] Speaker 04:
2014 2015.

[00:24:09] Speaker 04:
I think that's okay.

[00:24:10] Speaker 04:
So whichever the year is.

[00:24:11] Speaker 04:
So suppose it was were at least there back to that.

[00:24:14] Speaker 04:
At that point, I take it the committee's rationale is in order to understand what the potential gaps

[00:24:20] Speaker 04:
might be, we need to have a full picture of what the president's financial assets and liabilities were.

[00:24:26] Speaker 04:
Otherwise, we can't know what the disclosure laws are missing.

[00:24:31] Speaker 05:
There's two parts of that.

[00:24:32] Speaker 05:
One is they've already identified some of those possible reforms that maybe you should have to disclose exact amounts instead of broad ranges.

[00:24:38] Speaker 05:
Maybe we should require you to talk about your closely held businesses.

[00:24:42] Speaker 05:
They've already identified the reforms and the facts you need to know whether that was implicated by President Trump or known and they believe them and they already know them.

[00:24:49] Speaker 04:
He, he, you know, that's, it seems to me that happens all the time with legislative inquiry is that there's definitely going to be suppositions based on evidence that there are certain amendments that may be in order.

[00:24:59] Speaker 04:
But it's always fruitful to know more, to get a better picture, and to get a full analysis of the sorts of things that may be missing.

[00:25:07] Speaker 05:
Tighten scrutiny, so he's the last place you should turn, not the first.

[00:25:10] Speaker 05:
And our submission is that those reforms they've already identified, they're policy judgments.

[00:25:16] Speaker 05:
I don't even know what the specifics of President Trump's finances would tell you.

[00:25:20] Speaker 05:
It's a policy judgment about whether future presidents, not him, future presidents should have to disclose this kind of information, whether that's too burdensome, whether the public has a right to know that.

[00:25:29] Speaker 03:
But isn't, isn't the disclosure also connected to other kinds of concerns that Congress would have, not just, you know, the, the sort of generic policy determination of whether people should know these things about his businesses, but Congress has an interest at least in the sort of foreign emoluments problem.

[00:25:50] Speaker 03:
Right.

[00:25:50] Speaker 03:
And I understood that disclosures were somewhat connected to that as well, that

[00:25:55] Speaker 03:
The president has to explain who is getting gifts from or money from or should under the law and Congress is exploring that.

[00:26:03] Speaker 03:
They also say with respect to the GSA issue, and I know we sort of shifted to finances, but back to GSA.

[00:26:13] Speaker 03:
I had understood that part of their rationale was wanting to have tighter oversight over the GSA itself because of the concern that there might be self-dealing going on since the president uniquely is the boss of GSA and is undertaking to also hold these leases.

[00:26:32] Speaker 03:
So homing in on that one in particular, I'm trying to understand how they could get the information they need from elsewhere

[00:26:39] Speaker 03:
when they're talking about a unique scenario in which the president is holding leases that GSA administers and there's a change of position within GSA that corresponds to the change in administration concerning his ability to hold the lease, et cetera.

[00:26:56] Speaker 03:
Do you concede that they have some basis legitimately for looking into those records at least?

[00:27:03] Speaker 05:
Absolutely not, Judge Jackson.

[00:27:04] Speaker 05:
This is the worst example of where they don't have any evidence.

[00:27:08] Speaker 05:
They say that President Trump may have misrepresented information in his bid for the lease in 2011, and then potentially when he certified his net worth in 2013 to 2016.

[00:27:17] Speaker 05:
But there's no evidence for that whatsoever, except Michael Cohen's testimony about entirely different transactions involving the Buffalo Bills in New York.

[00:27:25] Speaker 05:
It's not about the lease at all.

[00:27:26] Speaker 05:
There's no evidence.

[00:27:27] Speaker 03:
I don't understand what you mean.

[00:27:29] Speaker 03:
My question is, GSA is an agency that Congress has oversight with respect to.

[00:27:38] Speaker 03:
And GSA also reports to the President of the United States.

[00:27:42] Speaker 03:
And to the extent that we have a President, unique in all of American history, who is retaining or maintaining a lease of property that is leased by the GSA,

[00:27:59] Speaker 03:
Congress now this committee says we would like to see the information that GSA was given by this president about his financial position about whatever to secure this lease because we may need to change our legislation in the future to the extent that we think

[00:28:17] Speaker 03:
as a policy matter that president should not be allowed to lease out federal property.

[00:28:24] Speaker 03:
So whether I don't know what that has to do with the Buffalo bills, but I'm trying to understand why that isn't a legitimate inquiry of Congress and why at the very least they shouldn't have access to the records that the president provided to substantiate his lease bid in this situation.

[00:28:38] Speaker 05:
That's exactly right, Judge Jackson.

[00:28:40] Speaker 05:
They may have an interest in the documents that President Trump submitted to GSA.

[00:28:45] Speaker 05:
They have every single one of those documents already because they've asked GSA for them.

[00:28:49] Speaker 05:
They have them all.

[00:28:49] Speaker 05:
They're all posted on the committee's website.

[00:28:52] Speaker 05:
The financial statements that President Trump submitted, they have them already.

[00:28:55] Speaker 05:
They're posted.

[00:28:56] Speaker 05:
And the certifications themselves, anything that went into the bid, they all have that.

[00:29:00] Speaker 05:
It's all posted in public.

[00:29:01] Speaker 05:
They have that already.

[00:29:02] Speaker 03:
So your objection to this one is it's duplicative what they're asking for, that it's not necessary because they already have it.

[00:29:07] Speaker 05:
I'm objecting to really what they don't have yet.

[00:29:09] Speaker 05:
And what they don't have yet are source documents that would get into the nitty gritty of exactly the President Trump's entire financial situation from 2011 to 2018.

[00:29:18] Speaker 05:
They have statements that were made to GSA and that's exactly what they need to legislate.

[00:29:22] Speaker 05:
If you think GSA's processes are insufficient, you would look to what was submitted to GSA and you would study that and ask GSA what else would you need?

[00:29:29] Speaker 05:
Why don't you ask for this?

[00:29:30] Speaker 05:
Why do you ask for this?

[00:29:32] Speaker 05:
They have all of that information already.

[00:29:34] Speaker 05:
What's left is just, I guess, double checking it against President Trump's entire finances for nearly a decade's stretch.

[00:29:43] Speaker 05:
And just one last point if I could on Judge Jackson on GSA.

[00:29:46] Speaker 05:
You know, one thing that we agree about from this court's prior decision is what Judge Tatel called a statutory litmus test that it applied in that case.

[00:29:54] Speaker 05:
And what Judge Tatel was saying is that this subpoena, even under a pertinency standard, which applies to any individual in America, it's the lowest standard that exists in the law.

[00:30:02] Speaker 05:
Even under a pertinency standard, this subpoena is only possibly pertinent to laws that would study presidential finances.

[00:30:09] Speaker 05:
What he meant was it's not pertinent to laws that would just apply to ordinary

[00:30:14] Speaker 05:
executive branch employees or agencies.

[00:30:16] Speaker 05:
It has to be a law that quote apply or laws that quote apply to presidents directly.

[00:30:22] Speaker 05:
The only thing they've ever identified for the GSA rationale is a law that would ban presidents from entering into leases with GSA.

[00:30:29] Speaker 05:
And it's just nothing about these records that helps you make an informed decision about that kind of legislation.

[00:30:33] Speaker 04:
Can I get back to something that is president specific, which is disclosures or at least it could be president specific and there's been some president specific legislation that's been identified that could be amended or enacted.

[00:30:43] Speaker 04:
As to that, is there anything in the scope of the subpoena that you think is fair game?

[00:30:51] Speaker 04:
Well, we have purpose-based challenges to the subpoena, but it's actually not about legislation.

[00:30:55] Speaker 04:
Right, so those are the kind of, they cut across everything and they would just void it out of an issue, but just hypothetically assume that we're past that.

[00:31:03] Speaker 04:
And we're talking about the application of the MAZR standard to a subpoena that we think is adequately founded in terms of pursuing a valid legislative objective.

[00:31:13] Speaker 04:
that really, really there anything within the scope of the subpoena now that you think would be something that the committee could lawfully get?

[00:31:22] Speaker 04:
Sure.

[00:31:22] Speaker 04:
I think, I mean, I think under heightened under Mazars now, um, that's my question.

[00:31:26] Speaker 04:
Yeah.

[00:31:26] Speaker 04:
Under Mazars.

[00:31:27] Speaker 04:
So you, you think Mazars means even if we get past your threshold objection, that there's not a pursuit of a valid legislative objective.

[00:31:35] Speaker 04:
You think if there is the, if we think that amending the financial disclosure laws to address potential gaps is a valid legislative objective.

[00:31:43] Speaker 04:
And we think, contrary to your argument, that that objective in fact is in play here.

[00:31:49] Speaker 04:
I mean, it's not just a setter for you for something else, but that's in fact in play here.

[00:31:52] Speaker 04:
At least we have to defer to the committee's statement that it is, and it's an indication that it is.

[00:31:58] Speaker 04:
Even if we're at that part of the analysis, you think under the Mazars standard, there's nothing in terms of the financial records that Mazars has vis-a-vis former President Trump that could be within the fold of a valid subpoena.

[00:32:13] Speaker 05:
So assuming away all of that, my last argument is that we at least deserve what every former president has gotten.

[00:32:20] Speaker 05:
The only two presidents we know about who comply with compulsory process from Congress are Tyler and Adams, and both were guaranteed confidentiality.

[00:32:28] Speaker 05:
And that's the very last argument that we have is that if this information is critical to legislating, because you need to know the exact amounts, you need to know how far back to go.

[00:32:37] Speaker 05:
You need every single detailed transaction.

[00:32:38] Speaker 05:
If that's true, you can do all that in camera.

[00:32:41] Speaker 04:
So do you think that if there were if there were confidentiality, then the entire subpoena is fair game?

[00:32:48] Speaker 05:
I think if you've assumed away all my prior arguments, then yes, then that's what they need to legislate, but it dramatically decreases the burden on us.

[00:32:57] Speaker 04:
And this would be the first subpoena that a court has ever enforced that didn't guarantee that level of protection.

[00:33:01] Speaker 04:
Okay, so if there were confidentiality, then you think the entire subpoena is fair game vis-a-vis?

[00:33:06] Speaker 04:
financial disclosures, giving away the threshold arguments that I know that you're preserving as you could.

[00:33:10] Speaker 04:
Thank you for that clarification.

[00:33:11] Speaker 04:
Nothing before he filled out a financial disclosure.

[00:33:13] Speaker 04:
So 2011, 2012, 2013, certainly.

[00:33:15] Speaker 04:
Got it.

[00:33:16] Speaker 05:
So for the relevant years, if it's temporarily paired back to the relevant years.

[00:33:19] Speaker 05:
Temporarily paired back and paired back to the information that goes into the financial disclosure.

[00:33:25] Speaker 05:
Not everything he's ever, every jot and tittle of every transaction he's engaged in.

[00:33:28] Speaker 04:
But as to that, I think the argument is that we don't know what's missing

[00:33:35] Speaker 04:
in terms of what should be in financial disclosures until we get a real assessment of what the financial statements contain.

[00:33:43] Speaker 04:
Because, yes, there were things that would go into the financial disclosure forms.

[00:33:46] Speaker 04:
But the whole point is, are there things that we ought to be asking for and we ought to make sure are within the fold of that to assure that we have accurate assessment of the president's assets and liabilities?

[00:34:00] Speaker 04:
And we can't know that until we get all the financial information.

[00:34:03] Speaker 05:
They do know that they've identified and even passed several of those reforms in legislation already.

[00:34:07] Speaker 05:
But to the extent that the argument boils down to, we don't know what we don't know.

[00:34:11] Speaker 05:
So we need to go looking to find mistakes that we don't know about yet to find, you know, to do reforms that we haven't thought about yet.

[00:34:16] Speaker 05:
That's the kind of reasoning that can't survive heightened scrutiny.

[00:34:19] Speaker 05:
It would justify.

[00:34:20] Speaker 04:
I think you can't survive it at that level of generality.

[00:34:22] Speaker 04:
That's got to be true.

[00:34:23] Speaker 04:
But once you've, if you have an adequate evidentiary foundation for thinking there may be a problem,

[00:34:29] Speaker 04:
That seems to me a little bit different, because then it can't be that you have to know ahead of time once you've already identified a problem.

[00:34:35] Speaker 04:
Otherwise, you could never know the scale of the problem.

[00:34:38] Speaker 04:
So if you give on the notion that there's an adequate evidentiary foundation, and I know you don't, but I'm just asking you to accept a lot of premises that you are resisting for understandable reasons.

[00:34:48] Speaker 04:
If you give on that, then it seems to me that it can't be that what the committee is and validly seek is only that which we already know goes into financial disclosure.

[00:34:59] Speaker 04:
because there's got to be some zone for inquiry into what ought to be disclosed, but never even was within the can.

[00:35:07] Speaker 05:
If we stipulate that the committee has a sufficient factual record to go looking, then at least the subpoena should be tailored to that factual record.

[00:35:15] Speaker 05:
This one is not.

[00:35:17] Speaker 05:
I believe they've identified closely held businesses.

[00:35:20] Speaker 05:
They want to know the structure potentially of closely held businesses.

[00:35:22] Speaker 05:
They want to look into loans that may or may not have been disclosed,

[00:35:25] Speaker 05:
then issue a subpoena for loans or for what are closely held business structures.

[00:35:29] Speaker 05:
It needs to be some level of basic tailoring under any version of hide and screw.

[00:35:34] Speaker 04:
And then one last question along these lines.

[00:35:36] Speaker 04:
Suppose we reintroduce non-confidentiality.

[00:35:40] Speaker 04:
And so we don't say that everything is going to be held confidential.

[00:35:44] Speaker 04:
Then is there any documents, if you accept all the other premises besides the confidentiality one, are there any documents that you think are within the fold of a valid subpoena?

[00:35:55] Speaker 05:
Sorry, if we assume that the documents are going to be publicly released.

[00:36:00] Speaker 05:
Exactly.

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

[00:36:02] Speaker 05:
No, I think that at that point, the burden on the former president is far outweighs the... What is the burden?

[00:36:08] Speaker 03:
Do you mean the burden of looking at the... Like what burden comes from the lack of confidentiality?

[00:36:14] Speaker 05:
It's the violation of privacy, of confidentiality, of proprietary business information being published to the whole world.

[00:36:21] Speaker 05:
at that point.

[00:36:21] Speaker 05:
And that, of course, burdens us.

[00:36:23] Speaker 05:
But the burden is, you know, of an extremely painful subpoena is it increases the threat of that kind of subpoena to the incumbent.

[00:36:31] Speaker 05:
So the more you let Congress do to a former president, the more leverage they have over the current president because they can make this threat.

[00:36:38] Speaker 04:
But that doesn't immediately emerge from the language of Mazars in discussing the fourth prong, which is where burdens come into play because the court says we've held the burdens on the president's time and attention.

[00:36:49] Speaker 04:
stemming from judicial process and litigation without more generally do not cross constitutional lines.

[00:36:54] Speaker 04:
The burdens imposed by a congressional subpoena should be carefully scrutinized, but they stem from a rival political branch that has an ongoing relationship with the president.

[00:37:01] Speaker 04:
So it seems like the burdens that were foremost in the court's mind, at least, were not the ones that you're referring to now.

[00:37:06] Speaker 04:
It had to do with time and attention and burdens on the office of the president.

[00:37:10] Speaker 05:
Sure.

[00:37:10] Speaker 05:
And I think they said burdens.

[00:37:12] Speaker 05:
I think any kind of burden is fair game under Mazars.

[00:37:14] Speaker 05:
The opinion concludes by saying these factors are not exclusive.

[00:37:17] Speaker 05:
The opinion starts by saying the reason President Trump cares so much about these documents is how sensitive they are.

[00:37:23] Speaker 05:
I think the court understood the dynamics at play and didn't think, it wasn't concerned that President Trump was going to have to participate or thumb through the documents himself.

[00:37:32] Speaker 05:
I mean, they belong to a third party accountant, which the court acknowledged but said is irrelevant to understanding the separation of powers dynamic.

[00:37:37] Speaker 03:
But he was a sitting president at the time it came down.

[00:37:40] Speaker 03:
This subpoena originally came.

[00:37:42] Speaker 05:
He was.

[00:37:42] Speaker 05:
And how it applies to a former president is an open question.

[00:37:45] Speaker 05:
I mean, I think in the other case, the federal tax returns case, my friends at the Justice Department said we're on the frontier of the law here.

[00:37:52] Speaker 05:
It's a tough question.

[00:37:52] Speaker 05:
But the reasoning and the principles in Mazars, we think, point towards applying heightened scrutiny here as well.

[00:37:58] Speaker 05:
And this subpoena, which, of course, was drafted at a time when the House never imagined any kind of test like this would apply, fails that standard.

[00:38:06] Speaker 01:
Well, of course, the Supreme Court was not solicitous to a former president's concern about the burden on his ability to carry out his duties while president.

[00:38:21] Speaker 01:
Isn't that correct?

[00:38:25] Speaker 05:
Correct.

[00:38:26] Speaker 05:
It wasn't not a concern.

[00:38:28] Speaker 05:
It wasn't a case about a former president.

[00:38:30] Speaker 01:
Well, Clinton v. Jones, all right, court rejected

[00:38:35] Speaker 01:
that argument that the president had presented.

[00:38:39] Speaker 01:
So I think just Chief Judge's comment about you have to look at Mazers in terms of whether it was discussing the first factor as opposed to the fourth factor.

[00:38:51] Speaker 01:
Because the Supreme Court, I didn't read Mazers to reject its previous view of what it meant with regard to the fourth factor in terms of burdens, even while the president is still in office.

[00:39:06] Speaker 01:
Am I incorrect?

[00:39:10] Speaker 05:
I don't think I dispute any of that, Judge Rogers.

[00:39:12] Speaker 05:
I would note, though, that this type of burden, the court did talk about the institutional advantages.

[00:39:17] Speaker 05:
You need to check for the long-term interest and then if you're upsetting the balance between the branches.

[00:39:22] Speaker 05:
If you look at DOJ's last amicus brief in this case, this is a point they agree with us on, is that this kind of subpoena, even though it doesn't require the president to do very much himself because of the disclosure burdens, is burdensome in the sense that Mazars met.

[00:39:35] Speaker 05:
They agree with us on that.

[00:39:37] Speaker 05:
And the important thing is, you know, Mazars has four considerations, but Mazars is an application of the legitimate legislative purpose test.

[00:39:44] Speaker 05:
That's always the test that applies when Congress demands information from someone.

[00:39:49] Speaker 05:
The question is just, you know, what level of rigor are you going to apply when you apply that test?

[00:39:53] Speaker 05:
Mazars said, you know, here's a here's four considerations that you should apply to balance the interest.

[00:39:59] Speaker 05:
And we think

[00:40:00] Speaker 05:
Judge Meta made.

[00:40:02] Speaker 05:
We disagree with him, but he made a reasonable conclusion that if the separation of powers concerns are lower here, then maybe I should just play a lower version of that same scrutiny.

[00:40:09] Speaker 05:
But the test is the test.

[00:40:10] Speaker 05:
It's legitimate legislative purpose test.

[00:40:12] Speaker 05:
When we think in these circumstances where the subpoena was issued while he was president because he was president to study legislation that would restrict the president, the separation of powers concerns here have faded very little, if at all.

[00:40:26] Speaker 04:
Thank you, counsel.

[00:40:27] Speaker 04:
Let me make sure my colleagues don't have additional questions for you at this time.

[00:40:29] Speaker 04:
We'll

[00:40:30] Speaker 04:
We'll give you some time for rebuttal.

[00:40:35] Speaker 04:
We'll hear from the committee now.

[00:40:37] Speaker 04:
The letter.

[00:41:09] Speaker 02:
Morning, Your Honors.

[00:41:10] Speaker 02:
I'm Douglas Leder, the General Counsel of the U.S.

[00:41:12] Speaker 02:
House of Representatives.

[00:41:14] Speaker 02:
And with me today is Associate Counsel Stacey Fossil.

[00:41:21] Speaker 02:
Your Honors, I must start out with one point that I want to go into.

[00:41:26] Speaker 02:
There was a lot said in my friend's argument that is worthy of being addressed.

[00:41:33] Speaker 02:
urge this court, in the strongest possible terms, to rule as quickly as possible a panel of this court, on which Judge Jackson sat recently, issued an opinion very quickly.

[00:41:46] Speaker 02:
And we strongly urge that you do that as well, so that the oversight committee has the ability to carry out its responsibilities.

[00:42:00] Speaker 02:
As far as jumping right in,

[00:42:04] Speaker 02:
Judge a chief judge for the sun, I think you asked one of the key questions about what would have happened if this had simply been issued.

[00:42:15] Speaker 02:
After Trump was no longer president and.

[00:42:18] Speaker 02:
That goes to.

[00:42:22] Speaker 02:
So much of the argument here that I think is flawed of my friend, Mr. Norris.

[00:42:28] Speaker 02:
He says, well, it would still be invalid because it's very invasive.

[00:42:32] Speaker 02:
It's invasive of Mr. Trump's privacy.

[00:42:36] Speaker 02:
Well, that has absolutely nothing to do with what the Supreme Court decided in Mazers.

[00:42:44] Speaker 02:
And remember, all of this information, every single bit of it is not privileged.

[00:42:50] Speaker 02:
I was made quite clear the Supreme Court said that.

[00:42:53] Speaker 02:
Not only no executive privilege, there's no accountant, client privilege, et cetera.

[00:42:57] Speaker 02:
So there's no privileges.

[00:42:59] Speaker 02:
In fact, many of these are corporate records.

[00:43:03] Speaker 02:
But again, that had absolutely nothing to do with Mazers.

[00:43:06] Speaker 02:
Mazers, as you know, and I think your questions indicate you clearly know, had to do with what the Supreme Court viewed as very significant separation of powers issues.

[00:43:20] Speaker 03:
But your counterpart.

[00:43:24] Speaker 03:
My friend.

[00:43:25] Speaker 03:
Your friend.

[00:43:27] Speaker 02:
We have argued against each other enough times now that I think we consider ourselves friends.

[00:43:31] Speaker 03:
Your friend characterizes Mazers differently than I had thought.

[00:43:37] Speaker 03:
And so I'd like your response to that.

[00:43:39] Speaker 03:
He suggests that it really isn't sort of separation of powers, that it was about

[00:43:45] Speaker 03:
the court being concerned about the subpoena itself and its nature and its thrust and what it was trying to do in a negative fashion to President Trump.

[00:43:56] Speaker 03:
So can you respond to that?

[00:43:59] Speaker 02:
Yes, Your Honor, I think it's absolutely wrong.

[00:44:02] Speaker 02:
The Supreme Court makes quite clear that what they're concerned about is a clash between the branches, an ongoing relationship between the executive and the legislative branch.

[00:44:15] Speaker 02:
It's all over the court's opinion.

[00:44:18] Speaker 03:
But what about this idea that there still is a concern about separation of powers in a world in which former presidents can immediately be subpoenaed for all of their personal records as soon as they leave office?

[00:44:33] Speaker 03:
He says that's going to still allow for the kind of leverage over sitting presidents that the Supreme Court specifically identified in Mazers.

[00:44:43] Speaker 03:
Why is he wrong about that?

[00:44:45] Speaker 02:
Yes and no.

[00:44:47] Speaker 02:
He's right.

[00:44:48] Speaker 02:
We can see there is a separation of powers issue here.

[00:44:52] Speaker 02:
And by the way, I'd like to come back to because Judge Jackson, you asked a question that I think shows there's a very serious separation of powers issue raised by what Judge Maida did here.

[00:45:02] Speaker 02:
But going back, yes, Judge Maida correctly said there is at least a separation of powers question about whether there would be so much pressure

[00:45:15] Speaker 02:
on the current president.

[00:45:18] Speaker 02:
If the House went to him and said.

[00:45:21] Speaker 02:
You're not going to answer this now 5 we know we are you in for it later you're going to so regret this and so here a list of things we want you to do we want you to sign this bill we want you to do this we want you to do that because otherwise we're coming after you later.

[00:45:39] Speaker 02:
Yes.

[00:45:40] Speaker 02:
That could be a hypothetical separation of powers interest.

[00:45:44] Speaker 02:
It is so far removed from reality, both specifically and broadly.

[00:45:51] Speaker 04:
Obviously- Why is it removed from reality?

[00:45:53] Speaker 04:
Wasn't it obvious that that was what was going to happen?

[00:45:56] Speaker 04:
I don't think so, Your Honor.

[00:45:57] Speaker 04:
Not the threat part of it.

[00:45:58] Speaker 04:
I mean, no one's going to actually affirmatively articulate it as a threat.

[00:46:02] Speaker 04:
But in terms of the likelihood that the subpoena would survive, wasn't that what everybody

[00:46:08] Speaker 04:
In fact, I think the committee said so.

[00:46:09] Speaker 02:
Yes, there was definitely a possibility the subpoena would survive.

[00:46:12] Speaker 02:
But one big question is, would President Trump have gotten re-elected, in which case we still would have had the Mazers test, which, by the way, we think we can't.

[00:46:22] Speaker 04:
Right, but even assuming he wasn't going to get re-elected, I think every, and I think the committee said that.

[00:46:28] Speaker 04:
In the Maloney memorandum, at the end of the Maloney memorandum, I believe the committee just said, this is going to continue no matter what.

[00:46:34] Speaker 02:
I think you're exactly right, Judge, Chief Judge.

[00:46:37] Speaker 02:
And so the question, though, is, did it have an impact on the presidency?

[00:46:43] Speaker 02:
Did it inhibit the presidency as the president carries out his functions?

[00:46:50] Speaker 02:
Clearly, it had no impact on that president.

[00:46:54] Speaker 02:
President Trump, there's absolutely no evidence of any kind that this had an effect on him.

[00:47:01] Speaker 02:
It's very difficult.

[00:47:03] Speaker 04:
I don't know what you mean by that because if you mean that there's no evidence that had an impact because he resisted.

[00:47:09] Speaker 04:
Sure, but that's never the question.

[00:47:11] Speaker 04:
I mean, the fact that somebody actually resists doesn't mean that it doesn't have an effect on the presidency.

[00:47:16] Speaker 04:
If there were an actual affirmative threat and somebody didn't give way in the face of the threat, you wouldn't say that there's no problem with the threat because the person resisted.

[00:47:24] Speaker 02:
Oh, I think if you were talking about the test here, which is, does this have an impact on the president's ability to do his job?

[00:47:33] Speaker 03:
I didn't think that was where you were going at all.

[00:47:36] Speaker 03:
I thought your response to Chief Judge Srinivasan's question was that this wasn't about trying to get President Trump to do anything while he was in office, that this was about the legislature believing that it had a factual basis

[00:47:51] Speaker 03:
for making legislative changes arising out of some of the conduct that they saw going on in the White House.

[00:48:01] Speaker 02:
You're exactly right.

[00:48:02] Speaker 02:
And I was I was going there next.

[00:48:04] Speaker 02:
No, that's exactly right.

[00:48:05] Speaker 02:
But I think it is both to say, did this have did this in some way intrude on or disturb the presidency?

[00:48:13] Speaker 02:
That's one question.

[00:48:15] Speaker 02:
And two is, as you've said,

[00:48:17] Speaker 02:
We the key this was in a situation where the oversight committee was saying you better answer these questions or we're going to issue a subpoena later and so you better sign this is such a bill or you better withdraw the funding for the border wall or some way that it intruded on the presidency it clearly didn't nor can we think of any situation.

[00:48:43] Speaker 02:
In in our nation's history where

[00:48:45] Speaker 02:
Congress seeking information from a sitting president that then might carry over to seeking information from a later, when he's no longer the president, would have in some way disturbed the presidency.

[00:48:59] Speaker 02:
Especially because, as I say, one, in every situation, unless the president is actually impeached and convicted, which has never happened, there'll be a new Congress.

[00:49:09] Speaker 02:
So one question is, will this actually be a real threat?

[00:49:13] Speaker 02:
And two,

[00:49:15] Speaker 02:
what, what impact would this likely have?

[00:49:18] Speaker 02:
And so we admit there is this hypothetical concern, but we think it is so weak that basically there is almost nothing here on as far as the balancing on the side of the executive.

[00:49:34] Speaker 03:
So you don't think the Mazars test as the Supreme court articulates it applies in this situation or you do.

[00:49:40] Speaker 02:
We do not.

[00:49:41] Speaker 02:
All right.

[00:49:42] Speaker 02:
And, and if I could write there,

[00:49:45] Speaker 02:
Um, my friend said, well, the DOJ does remember, uh, as we pointed out to you, the most recent, uh, OLC office of legal counsel opinion makes clear that if it applies, it's in the weakest, an extremely weak way.

[00:50:00] Speaker 02:
And then that was reiterated.

[00:50:02] Speaker 04:
The way that the litigation would unfold then is the minute that the president leaves office, it's a pending case.

[00:50:09] Speaker 04:
Uh, let's say, uh, let's say the court of appeals issues a ruling that's predicated on the fact of a sitting president.

[00:50:15] Speaker 04:
the president departs office and the ruling goes against you.

[00:50:19] Speaker 04:
And the court, what happens?

[00:50:21] Speaker 04:
The court's decision is wrong because it was under a standard that immediately gets turned off because the president has left office.

[00:50:29] Speaker 02:
That's correct, Your Honor.

[00:50:31] Speaker 02:
And as we know, that is correct.

[00:50:33] Speaker 02:
Everybody believes that an ex-president can be criminally prosecuted.

[00:50:38] Speaker 02:
So that could be the day after he leaves office.

[00:50:41] Speaker 02:
Nobody thinks that, oh,

[00:50:43] Speaker 02:
He's a recent form of former president and therefore he can't be criminally prosecuted.

[00:50:47] Speaker 04:
But you wouldn't have had the prosecution before.

[00:50:49] Speaker 04:
I mean, in this case, I'm assuming a case that's pending.

[00:50:53] Speaker 02:
Well, who knows?

[00:50:54] Speaker 02:
Maybe we would we would have some situation where a you know, there was a threat of prosecution.

[00:51:01] Speaker 02:
And then as we know, the moment the president leaves office, everything changes, which is completely consistent with what this court decided the other day.

[00:51:11] Speaker 02:
In the in trump versus thompson because we have only one president at a time so but there wasn't anything before the in trump versus thompson the There wasn't something that it was in existence at the time that president trump was in office That is correct your honor, but yeah, there was except Except actually I think I answered too quickly um, obviously uh if if

[00:51:39] Speaker 02:
If it was going to be the Congress with the Democratic majority, it was a good possibility that there would be a request under the Presidential Records Act for records of an ex-president.

[00:51:52] Speaker 02:
So yes, that actually was certainly something that anybody could have contemplated.

[00:51:58] Speaker 02:
And yet, this court clearly thought that whatever effect Mazers had, it was very, very reduced.

[00:52:06] Speaker 03:
Well, Mr. Letter,

[00:52:09] Speaker 03:
I understand very well what president Trump is saying.

[00:52:15] Speaker 03:
And there's a concern, I think a legitimate concern that arises in the current situation with respect to the financial disclosure and ethics goal.

[00:52:28] Speaker 03:
So we were talking about the three tracks, um, assuming for a second that Mazers Supreme court test applies.

[00:52:37] Speaker 03:
This subpoena is so broad, it seeks access to this president's personal financial information in a way that I see could certainly be relevant to the goal of finding something that could prompt legislative changes in the financial disclosure realm.

[00:52:58] Speaker 03:
But it seems as though the Supreme Court's test requires that it be necessary

[00:53:04] Speaker 03:
not just relevant.

[00:53:06] Speaker 03:
I think that's am I wrong about that being the thrust of the heightened test?

[00:53:10] Speaker 03:
Let's start there.

[00:53:13] Speaker 02:
Your honor, I don't remember the

[00:53:16] Speaker 02:
is our major's opinion saying information has to be necessary.

[00:53:21] Speaker 02:
I don't think the the I don't remember that that was the first factor.

[00:53:26] Speaker 02:
I'm sorry.

[00:53:26] Speaker 03:
I thought that was the first factor that you needed to be able to demonstrate you as as as the House that

[00:53:39] Speaker 03:
you had to rely on this president's information that you couldn't get it anywhere else in order to be able to legislate.

[00:53:45] Speaker 02:
What I have written down, does the asserted legislative purpose warrant the step of involving the president in his papers and other sources reasonably provide them?

[00:53:54] Speaker 02:
No case studies are allowed.

[00:53:56] Speaker 02:
And so if the Mazers test applies, we easily meet that because what we're doing here is the oversight committee is looking to see

[00:54:08] Speaker 02:
what changes should be made regarding financial disclosure forms in general, but more particularly involving president and particularly involving a president in this kind of situation.

[00:54:23] Speaker 03:
What worries me, Mr. Mays letter is that it seems as though Congress could define its goal in such a way

[00:54:34] Speaker 03:
that it would make it obvious that the president's records would be necessary when really the committee is just, is just undertaking a fishing expedition.

[00:54:43] Speaker 03:
So, so suppose, suppose the committee says, we suspect that the president may have done something wrong in an area related to our legislative purview.

[00:54:53] Speaker 03:
And we want all of his personal records to figure out what he's done so that we can legislate to prevent that wrong thing from happening in the future.

[00:55:03] Speaker 03:
Are you suggesting that under Mazars heightened standard, that would be okay?

[00:55:08] Speaker 02:
If I'm understanding your hypothetical correctly, Joe Jackson, that would be problematic if it is just, gosh, this man must have done something wrong.

[00:55:17] Speaker 02:
So let's try to figure out what it is.

[00:55:18] Speaker 02:
That's nowhere near this case.

[00:55:21] Speaker 02:
Why not with respect to the financial disclosure?

[00:55:23] Speaker 02:
Yeah.

[00:55:24] Speaker 02:
So first look at, well, as we know, the, the office of government ethics said that, that, um, as president, Mr. Trump,

[00:55:32] Speaker 02:
file forms that were wrong misleading.

[00:55:36] Speaker 02:
Second we have the testimony of of Mister Cohen.

[00:55:40] Speaker 02:
I know he's convicted of lying but you know he he still said this not to city say it he produced documents that show it.

[00:55:49] Speaker 02:
In addition look at pages or 18 and 4.19 J joint appendix for 18 and 4.19 that's where chairwoman Maloney is explaining

[00:55:59] Speaker 02:
Her her rationale here for the subpoena which by the way I kept want to say remember there is a new subpoena which is what is before the court now.

[00:56:11] Speaker 02:
The only issue after his presidency that makes absolutely clear that there are there is so much smoke here.

[00:56:18] Speaker 03:
But I guess isn't the answer to that more law enforcement.

[00:56:22] Speaker 03:
I mean, if the evidence is that he may have done something wrong, then I'm still struggling to see why legislation is going to be the problem.

[00:56:31] Speaker 03:
More legislation.

[00:56:32] Speaker 03:
If he, if he broke the law in some way, then the answer should be law enforcement, right?

[00:56:36] Speaker 03:
Not more legislation.

[00:56:38] Speaker 02:
No.

[00:56:38] Speaker 02:
And first of all, this court rejected that argument.

[00:56:43] Speaker 02:
in its prior opinion in part that I don't think the Supreme Court touched at all.

[00:56:46] Speaker 02:
So the fact that there might have been laws broken, that doesn't mean that Congress can't investigate to see whether there should be legislative fixes.

[00:56:54] Speaker 02:
So this court has already rejected that view.

[00:56:57] Speaker 02:
And as you know, we believe that is a presidential on this court, presidential with a C, not an S on this court.

[00:57:04] Speaker 02:
But two, no, as we know, Congress can't do

[00:57:08] Speaker 02:
law enforcement.

[00:57:09] Speaker 02:
Congress's bar can't prosecute anybody.

[00:57:11] Speaker 02:
But what Congress can do is say, how should we structure financial disclosure laws in the future to take care of this problem, which I'm going to link then to other problems in a moment.

[00:57:25] Speaker 02:
And this is something that I think is completely lost in my friend's argument.

[00:57:31] Speaker 02:
The Oversight Committee knows they're dealing with a president.

[00:57:34] Speaker 02:
So they say, we have to be very careful.

[00:57:37] Speaker 03:
But they're not careful in the subpoena.

[00:57:38] Speaker 03:
His argument is the subpoena says, give us everything.

[00:57:41] Speaker 03:
There's no tailoring in the subpoena concerning.

[00:57:44] Speaker 03:
We're interested in this particular issue.

[00:57:47] Speaker 03:
So give us records about that thing.

[00:57:49] Speaker 02:
Well, because remember it's the judge made a broke it down into, you know, financial disclosure, GSA list emoluments, but the committee is looking at all three.

[00:58:00] Speaker 02:
The committee broke that down.

[00:58:01] Speaker 02:
I'm sorry.

[00:58:02] Speaker 02:
He didn't invent that the committee broke it down that way.

[00:58:04] Speaker 02:
Right.

[00:58:04] Speaker 02:
But what I'm saying, but they're not three separate things that have nothing to do with each other.

[00:58:07] Speaker 02:
They overlap immensely.

[00:58:11] Speaker 02:
So for example, if you, you need to find out for both our conflict of interest purposes and the GSA in both three things and the GSA lease and emoluments, what was Mr. Trump's

[00:58:29] Speaker 02:
financial situation before he was president, because, you know, just taking some example.

[00:58:35] Speaker 02:
And again, this is discussed at great length in Chairwoman Maloney's memo.

[00:58:40] Speaker 02:
But suppose there has been a debt restructuring in 2015 involving Deutsche Bank or some other foreign entity.

[00:58:52] Speaker 02:
If all you look at is 2017, it may be that that looks totally fine.

[00:58:59] Speaker 02:
If you're just looking at the situation, 2017.

[00:59:02] Speaker 02:
But if you look back and you realize, wait a minute.

[00:59:05] Speaker 04:
Well, then why stop at 2011?

[00:59:06] Speaker 04:
I mean, you could support a committee subpoena under that logic that goes back forever.

[00:59:12] Speaker 02:
In 2011, we wanted to be, I'm sorry.

[00:59:17] Speaker 04:
Yeah, for as long as Mazars has had a relationship with former President Trump and all the Trump entities, under that logic, the committee could go back forever.

[00:59:26] Speaker 02:
And at a certain point, you may say, a court might say, that's just too much.

[00:59:30] Speaker 02:
So we tried to make this more reasonable.

[00:59:33] Speaker 02:
2011 is when GSA solicited.

[00:59:37] Speaker 04:
So can I ask the following question, which is somewhat in the air with some of the points that you've been making?

[00:59:47] Speaker 04:
Part of what's going on here as a predicate for the committee's inquiry is that this president had historically complicated financial arrangements that we just have a hard time getting a handle on.

[00:59:57] Speaker 04:
Yes.

[00:59:57] Speaker 04:
And we need to have access to the full range of financial statements and all the supporting documents and even the engagement letters so that we can adequately understand his financial arrangements with an eye towards amending the disclosure laws to capture

[01:00:13] Speaker 04:
some comparably complicated financial arrangements going forward the future presidents might have because we're not talking now any longer about ferreting out potential wrongdoing in the committee's mind by former president trump we're talking about the extent to which that informs legislation prospectively that could inform yes how we configure the disclosure disclosure laws for future presidents yes so the more it seems like president trump's financial arrangements were

[01:00:43] Speaker 04:
historically complicated and multi layered and unique, the less it seems like that information is going to be relevant to predicting what a future president might present.

[01:00:55] Speaker 04:
So there's there's something to the notion that what the mazar standard is designed to do is to ferret out what's a valid legislative objective and pursuit of a valid legislative objective from as as distinguished from

[01:01:12] Speaker 04:
an invalid legislative objective of exposing wrongdoing for the safe exposure.

[01:01:17] Speaker 04:
And if the way that the inquiry works is this is highly, highly, highly unique, we want to explore at all, even though it may never may well never come up again.

[01:01:26] Speaker 04:
And it starts to look like, well, why look into that highly, highly, highly unique situation to inform future circumstances that are very, very unlikely to present those kinds of considerations again?

[01:01:38] Speaker 02:
All very fair points, your honor.

[01:01:40] Speaker 02:
A couple of answers, though.

[01:01:41] Speaker 02:
One, I'm not certain.

[01:01:43] Speaker 02:
I think it was at one point we had three billionaires who had announced that they were running for president in the 2020 election.

[01:01:52] Speaker 02:
So is President Trump was certainly unique from what came before because... Well, then you can get the information from any of those other billionaires who wouldn't have been a sitting president when the subpoena was... No, but my point is

[01:02:08] Speaker 02:
had one of them been elected, it's not that, oh, my, this would never happen again.

[01:02:14] Speaker 04:
No, but I think part of the inquiry here is, can you, out of the first prong, if other sources could reasonably provide Congress the information it needs.

[01:02:23] Speaker 04:
And I think part of the point that Judge Mehta was making with respect to this is, well, there are other places you can look to look at complicated financial arrangements, including other billionaires and other people who I wouldn't immediately understand, but there are arrangements, but I could be helped

[01:02:38] Speaker 04:
Through that right by looking at somebody other than a former of what was who is somebody who was then a sitting president at the time the subpoena was issued and is now a former.

[01:02:46] Speaker 02:
And the problem with that first of all again for we're dealing with somebody who is not the president week week, I know it's a choice wants you to ignore that but you cannot and that's what this court recognized recently but know the problem is we need to look at what what happened with Mister Trump it's not just what might happen for instance with Mister Bloomberg.

[01:03:07] Speaker 02:
Because, for example, we know we have lots of smoke that there were serious problems that could have gone to major national security concerns because of Mr. Trump's financial interests with, for example, Saudi Arabia, Turkey and Russia.

[01:03:24] Speaker 03:
But isn't what makes the Mazars test a heightened test?

[01:03:29] Speaker 03:
That you would need to say more than just generally, we have lots of smoke here.

[01:03:35] Speaker 03:
You would need to say what it is that you're looking for in his records.

[01:03:41] Speaker 03:
Why you think if you find it, that's going to inform or advance some legislation.

[01:03:49] Speaker 03:
I don't know what makes the Mazars test heightened.

[01:03:51] Speaker 03:
If you can just say, we think that there's a lot going on with the, with the former president and his finances.

[01:03:58] Speaker 02:
You're right.

[01:03:58] Speaker 02:
Your honor, the Mazars test means you have to show more.

[01:04:02] Speaker 02:
And that's why the Maloney 50 something page memorandum does explain the more.

[01:04:09] Speaker 02:
And by the way, the October 8th, uh, letter,

[01:04:13] Speaker 02:
from the committee back to GSA that Mr. Trump submitted to this court, we'd be quite happy for you to look at that because that also shows that we clearly meet the heightened standard.

[01:04:26] Speaker 02:
There is so much smoke here.

[01:04:29] Speaker 02:
It's blinding.

[01:04:31] Speaker 02:
And it's hard to breathe because there's so much of it and I'm quite astonished by my friends argument that oh there's nothing here there's page after page that chairwoman Maloney explains of problems and so then Mister.

[01:04:46] Speaker 02:
Norris said, well, ask GSA.

[01:04:49] Speaker 02:
Well, the problem there, everyone, we have asked GSA.

[01:04:52] Speaker 02:
We've gotten some material from GSA.

[01:04:54] Speaker 02:
We haven't gotten everything.

[01:04:55] Speaker 02:
But here's a key problem.

[01:04:57] Speaker 03:
Do you have everything that he gave?

[01:04:58] Speaker 03:
That was one particular point.

[01:05:00] Speaker 03:
Everything that President Trump gave to GSA to evaluate leases, your friend says you have.

[01:05:09] Speaker 02:
I believe the answer is no.

[01:05:11] Speaker 02:
I'm asking my associate to write that down and so we can check, but I'm fairly sure the answer is no.

[01:05:16] Speaker 02:
But here's the key point.

[01:05:17] Speaker 02:
Even if we had everything, that assumes that what Mr. Trump was submitting to GSA was accurate.

[01:05:27] Speaker 02:
And that's exactly one of the problems.

[01:05:29] Speaker 02:
We know that there were serious, serious problems with things that Mr. Trump would show to

[01:05:36] Speaker 02:
entities like gsa or to a bank which would be very different from what was shown to tax authorities et cetera now who knows maybe that's legal it may very well be i'm not saying it isn't what i'm saying is there clearly is enough that we would want to for example should we say that a financial disclosure must

[01:05:58] Speaker 02:
include what you have submitted to a government entity before, and it must be consistent with generally accepted accounting principles.

[01:06:08] Speaker 02:
Because it appears that what was submitted to GSA was not, even though I think GSA required it.

[01:06:14] Speaker 02:
But it appears it was not.

[01:06:16] Speaker 02:
So that's one of the reasons we want to talk to see what Mazers has.

[01:06:19] Speaker 02:
Mazers is the accountant.

[01:06:20] Speaker 02:
So we want to know when Mr. Trump hired you, retained you,

[01:06:28] Speaker 02:
What were the terms were you supposed to just were you a pass through basically or were you supposed to employ gap.

[01:06:37] Speaker 02:
To see whether this is an accurate portrayal or not and again there is there is a lot of smoke.

[01:06:45] Speaker 03:
Well shouldn't the subpoena say some of this.

[01:06:49] Speaker 03:
In other words, if there are particular kinds of documents, if there are particular reasons why, I'm just a little concerned that the subpoena is so broad that we have these memos coming shortly before or after that sort of talks about it and tries to put it into context.

[01:07:09] Speaker 03:
But wouldn't part of the Mazers test be to ensure that the subpoena itself is capturing the kinds of things you're talking about?

[01:07:19] Speaker 03:
We're looking for that.

[01:07:20] Speaker 03:
I was actually surprised when I looked at the subpoena in conjunction with the memo, because I had expected that the subpoena itself would have these categories, for example, these tracks.

[01:07:33] Speaker 03:
We are interested in GSA financial disclosures and emoluments with respect to GSA.

[01:07:40] Speaker 03:
I'd like to see records 1 through 50.

[01:07:43] Speaker 03:
That's not the subpoena.

[01:07:45] Speaker 03:
And so the subpoena raises a question about whether what's really going on here is more of the kind of dragnet fishing expedition that we all agree the Supreme Court says you can't do.

[01:07:58] Speaker 02:
The Supreme Court said you can't do to a sitting president again remember our argument is Mazers does not apply and it's a very very strong argument and it's extremely close to what this court has recently said but holy aside from that your honor.

[01:08:16] Speaker 02:
I think you're assuming that we know a lot more than we do you're assuming that we know

[01:08:22] Speaker 02:
that the financial statement submitted to thus and such on thus and such a date is something we should be looking at.

[01:08:29] Speaker 02:
We don't know.

[01:08:31] Speaker 02:
Maybe there are all sorts of documents out there, and we don't know what Mazers did to them.

[01:08:38] Speaker 02:
We don't know how they were crafted.

[01:08:40] Speaker 02:
For all we know, remember, one of the things we've asked for is background documents.

[01:08:45] Speaker 02:
Is there a document from Mazers

[01:08:48] Speaker 02:
Mr. Bender is the one who's mentioned this Pina back to the Trump entity saying we've noticed a major discrepancy between this and that.

[01:08:59] Speaker 02:
Uh, and we're concerned about our accountant's license.

[01:09:02] Speaker 02:
Actually, if we submit this, can you explain this?

[01:09:05] Speaker 04:
And just, just to be clear, suppose that there is such a document.

[01:09:09] Speaker 04:
The reason the committee wants that document is it's because it's going to inform the committee as to what to do with financial disclosure laws.

[01:09:17] Speaker 04:
dealing with future presidents.

[01:09:19] Speaker 04:
But we're looking at what one particular person said to the former president at one particular point in time that it can inform disclosure laws vis-a-vis future presidents that will never have had the same kind of interaction with that same person.

[01:09:33] Speaker 02:
Yes, because again, remember, it's not just financial disclosure in monuments, for example.

[01:09:41] Speaker 02:
What was what was the relationship

[01:09:45] Speaker 02:
between the president and foreign entities and foreign banks.

[01:09:48] Speaker 02:
We know, we've learned that there was some sort of renegotiation, some sort of terms were changed before Mr. Trump became president.

[01:09:58] Speaker 02:
But then when he's president, does that mean that he was paying less on a debt than he would have been before?

[01:10:06] Speaker 02:
And therefore that would very likely be in a monument.

[01:10:10] Speaker 02:
Should Congress pass legislation

[01:10:13] Speaker 02:
attempting to define emoluments.

[01:10:16] Speaker 04:
And the emoluments one, at least a couple of the tracks, the financial disclosure track seems to me to be the one that gives you the broadest access to documents, but I may be wrong.

[01:10:24] Speaker 04:
It gives the broadest access to documents if that one's sustained.

[01:10:28] Speaker 04:
The lease one is a pretty specific rationale.

[01:10:31] Speaker 04:
And the idea that the full range of the subpoena can be justified by the lease track seems tough.

[01:10:40] Speaker 04:
There's a lot of entities that don't have much to do with any lease.

[01:10:43] Speaker 04:
there's a lot of time that doesn't, well, the time part of it actually is closer on the lease, because the lease started in 2011.

[01:10:50] Speaker 04:
But the entities and the scope of documents that are requested, they seem pretty far removed from a specific lease about the post office.

[01:11:00] Speaker 02:
And again, Your Honor, that's why these are all interrelated.

[01:11:04] Speaker 04:
It was a single subpoena that had very... So would you agree that if it was, if the only track that was asserted by the committee,

[01:11:12] Speaker 04:
was the least track that the subpoena is too broad.

[01:11:18] Speaker 02:
I'm not sure, your honor, because we don't know even with the entities.

[01:11:22] Speaker 02:
Well, because yes, because there were five there were.

[01:11:26] Speaker 02:
Remember, we asked for documents from five entities and just made a mistakenly thought that only three of those entities were involved with the lease.

[01:11:36] Speaker 02:
But

[01:11:37] Speaker 02:
the Maloney memorandum and the October 8th letter shows that all five were indeed involved with the lease.

[01:11:45] Speaker 02:
So we remember.

[01:11:46] Speaker 04:
So concerns about a specific lease about a specific property between the former president and GSA allow access to eight, is it eight years?

[01:11:56] Speaker 04:
It was a 2011 to 2018 is that what we're talking about?

[01:11:58] Speaker 04:
Yes.

[01:11:59] Speaker 04:
Eight years of every financial record that the president has with Mazars.

[01:12:04] Speaker 02:
Well, not, it's not, it's remember it's only records.

[01:12:07] Speaker 02:
that Mazers has.

[01:12:08] Speaker 02:
Remember, the subpoena.

[01:12:09] Speaker 04:
That's why I said with Mazers.

[01:12:11] Speaker 02:
Yeah.

[01:12:11] Speaker 02:
Oh, I'm sorry.

[01:12:11] Speaker 02:
I'm sorry.

[01:12:12] Speaker 04:
Yeah, with Mazers.

[01:12:14] Speaker 04:
Right.

[01:12:14] Speaker 04:
Because you haven't asked the president directly, but former president directly, but with Mazers, every record that the Mazers has, vis-a-vis this client and the complex of entities.

[01:12:25] Speaker 02:
So if all we were doing was looking at the GSA lease, it might very well be that we would say,

[01:12:30] Speaker 02:
it has to in some way pertain to the lease.

[01:12:34] Speaker 02:
Yeah, that could be, yes.

[01:12:36] Speaker 04:
But again... So I mean, and those are the letters that the committee has given to GSA.

[01:12:43] Speaker 04:
The letters that the committee has given to GSA to ask for information, they're not asking for every possible thing.

[01:12:47] Speaker 04:
Well, the GSA wouldn't even have it.

[01:12:49] Speaker 04:
Correct.

[01:12:49] Speaker 04:
But they're tailored to the lease.

[01:12:52] Speaker 04:
So it seems to me that the scope of the subpoena

[01:12:56] Speaker 04:
is quite out of whack with the lease track.

[01:13:01] Speaker 02:
Maybe I should have answered your honor's question differently.

[01:13:04] Speaker 02:
If all we were doing was looking at the lease, the subpoena would probably have been written differently, yes.

[01:13:12] Speaker 02:
But that's not what we're doing.

[01:13:14] Speaker 02:
Not just the financial disclosure, then we also have the emoluments.

[01:13:19] Speaker 02:
The emoluments

[01:13:20] Speaker 02:
does require something very broad, because that's not just about the GSA.

[01:13:26] Speaker 02:
At least, that's one of the most important points.

[01:13:29] Speaker 02:
And by the way, I don't want to forget this, so I'm just going to interrupt myself to say, remember, the domestic emoluments clause applies only to presidents.

[01:13:40] Speaker 02:
If there are concerns there, which there are, we have to get information about presidents.

[01:13:48] Speaker 02:
It doesn't do it.

[01:13:49] Speaker 02:
And I think he wasn't president in 2011.

[01:13:51] Speaker 02:
I'm sorry.

[01:13:51] Speaker 02:
He wasn't president in 2011.

[01:13:53] Speaker 02:
Correct.

[01:13:54] Speaker 02:
But that's when, as I said before, these what chairwoman Maloney points out is there are so many interconnections and complexities as far as what Mr. Trump has done with his his various entities.

[01:14:10] Speaker 02:
that we need to see what's the relationship between them.

[01:14:14] Speaker 02:
And we need to see, I repeat, if some sort of financial arrangement with a bank, a foreign bank, was renegotiated in 2014 or 15, that very well could mean an emolument in 2017 or 18.

[01:14:34] Speaker 02:
So we would need to go back some years

[01:14:37] Speaker 03:
To look to see this stuff you just take a moment to talk about remedy.

[01:14:41] Speaker 03:
So about remedy.

[01:14:43] Speaker 03:
There's remedy by remedy.

[01:14:45] Speaker 03:
I mean, if I excuse me, I apologize.

[01:14:48] Speaker 02:
I know it's I I'm having trouble through the mask.

[01:14:51] Speaker 02:
I apologize.

[01:14:52] Speaker 03:
So if we disagree with aspects of your argument and the.

[01:14:58] Speaker 03:
result is that we think that some parts of the subpoena or some tracks are okay and others aren't sort of along the lines of what Judge Mehta did.

[01:15:11] Speaker 03:
Is it your position that we have the power to tailor the subpoena or to just cut off those parts and say the other part is enforceable?

[01:15:20] Speaker 03:
We have to apply some sort of severability analysis.

[01:15:23] Speaker 03:
How do we go about thinking about that?

[01:15:26] Speaker 02:
Yes, is the basic answer.

[01:15:27] Speaker 02:
Yes.

[01:15:28] Speaker 02:
There's no law that we're aware of that you can't or shouldn't say,

[01:15:33] Speaker 02:
Like Judge Maida did, we think he drew the wrong lines, but we think, yes, you would say 2017 he was wrong.

[01:15:43] Speaker 02:
But if you think that 2011 or 12 is too far, even despite the documents that we have submitted, yes, there will be no reason at all to void the entire subpoena.

[01:15:58] Speaker 02:
This is not a criminal case, which is what

[01:16:01] Speaker 02:
My friend, Mr. Norris, has been relying on criminal cases.

[01:16:05] Speaker 02:
And again, we're aware of no reason why it wouldn't be.

[01:16:08] Speaker 04:
Well, would the criteria at least have to be somewhere in the subpoena?

[01:16:11] Speaker 04:
I mean, for example, suppose the committee issued a subpoena that says, we want every document that Mazars has that's associated with former president, well, then sitting President Trump and all the Trump entities.

[01:16:22] Speaker 04:
And we recognize it might be a little bit broad, but then a court can go through and figure out what the scope of the subpoena should be.

[01:16:27] Speaker 02:
I don't think we would ever do that.

[01:16:29] Speaker 04:
But if you did, if you actually issued that, I don't think you would say the last part, but you might issue a subpoena that's that broad and then leave it up to a court to narrow it.

[01:16:36] Speaker 04:
Is that what a court's supposed to do is to figure out, okay, there's a really broad subpoena.

[01:16:42] Speaker 04:
And what we're going to do is just narrow it to what we think the committee could have permissively done.

[01:16:46] Speaker 02:
Your honor, there's a presumption of regularity that applies to Congress as well.

[01:16:51] Speaker 02:
I can't imagine that Congress would ever say, look, let's just send a really broad, an over broad subpoena.

[01:16:57] Speaker 02:
And if there's a problem, the courts will.

[01:16:59] Speaker 03:
He's not talking about the intent.

[01:17:00] Speaker 03:
He's not talking about the intent.

[01:17:01] Speaker 03:
He's talking about the power of the court.

[01:17:04] Speaker 02:
Right.

[01:17:04] Speaker 03:
Is it, is it up to the court to craft a subpoena that the committee did not?

[01:17:12] Speaker 02:
Yes, but, and this gets back to the separation of powers issue.

[01:17:17] Speaker 02:
Remember, it's in general not the job of this court to be rewriting subpoenas.

[01:17:24] Speaker 02:
Just like, for instance, if you said to me, hey, Mr. Letter, we really want a supplemental brief on X, I wouldn't even dream of saying, no, no, the House of Representatives, I'm telling you, you don't need that.

[01:17:37] Speaker 02:
You shouldn't ask that.

[01:17:39] Speaker 02:
I don't understand your argument, Mr. Letter.

[01:17:40] Speaker 02:
So maybe I misheard you.

[01:17:44] Speaker 02:
You have the authority.

[01:17:46] Speaker 02:
to cut back on a subpoena.

[01:17:49] Speaker 02:
But remember, you should do that only when it is clear that it is something that is beyond the power of Congress

[01:17:59] Speaker 02:
to requests in a subpoena.

[01:18:01] Speaker 04:
Remember that's right.

[01:18:02] Speaker 04:
So everybody, I think, accepts that premise, which is that you have to be wrong on the scope of the subpoena to begin with before we can talk about narrowing it.

[01:18:08] Speaker 04:
But in terms of the court's obligation to narrow, I'm not even assuming bad faith on the part of the committee.

[01:18:14] Speaker 04:
Let's just suppose the committee in very good faith says, we think that our prerogatives, legislative prerogatives, support looking at every document

[01:18:25] Speaker 04:
that Mazars had that's connected to former President, then sitting President Trump, now former President Trump, and all the Trump entities.

[01:18:33] Speaker 04:
But it's possible the court's going to disagree with us.

[01:18:36] Speaker 04:
And if a court does disagree with us, then the court can just narrow the subpoena to what's permissible.

[01:18:41] Speaker 04:
Can that be okay?

[01:18:44] Speaker 02:
When you say would it be okay, would it be within the power of the court?

[01:18:47] Speaker 02:
I'd say yes.

[01:18:48] Speaker 03:
As opposed to saying

[01:18:51] Speaker 03:
The court should strike it down and let us be the one to come back and tailor it and make it consistent with what the court says is lawful legislative authority.

[01:19:02] Speaker 02:
I would say no, because in issuing the subpoena, the House already did what it thought was appropriate and is defensible.

[01:19:14] Speaker 02:
If the court says what you did is so indefensible, it's not related.

[01:19:21] Speaker 02:
or pertinent to legislation that could be had.

[01:19:25] Speaker 02:
Remember, that standard is amazingly broad.

[01:19:28] Speaker 04:
If you ruled officially... No, it's not about whether the legislation could be had.

[01:19:33] Speaker 04:
I mean, I think we're acceding to the notion that legislation in the area could be had.

[01:19:37] Speaker 04:
Yes.

[01:19:38] Speaker 04:
So it's not void because it's in pursuit of an improper objective.

[01:19:42] Speaker 04:
It's a proper objective.

[01:19:44] Speaker 04:
It's a field in which legislation could validly be enacted, or at least we can't reliably predict that it would be invalid.

[01:19:51] Speaker 04:
the subpoena is just too broad.

[01:19:54] Speaker 04:
And then the question becomes, if the subpoena is just too broad, is it incumbent upon the court to refashion the subpoena in a way that would be valid, or is it incumbent upon the issue of the subpoena to refashion the subpoena?

[01:20:05] Speaker 02:
Your Honor, it could vary depending upon the situation.

[01:20:08] Speaker 02:
But in this situation, I don't know why there would be any reason why you wouldn't do exactly what Judge Mayda did, except, as I say, with paying, sorry to repeat it,

[01:20:19] Speaker 02:
paying appropriate deference to, if there is, we've agreed in the hypothetical, there is legislation that can be had.

[01:20:27] Speaker 02:
The subpoena is valid, but might be overbroad over here, over there.

[01:20:32] Speaker 02:
I don't know.

[01:20:33] Speaker 04:
To me, it seems to me what's relevant is what the over here and over there is, because if it's reducing the number of years, that seems pretty concrete and easy, because the subpoena just reads in terms of the number of years.

[01:20:45] Speaker 04:
And if it were as easy as saying,

[01:20:48] Speaker 04:
years, X and Y are off limits years, Y and Z are on limits.

[01:20:51] Speaker 04:
I'm sorry, X and Y and then Z is on limits.

[01:20:54] Speaker 04:
That would be one thing.

[01:20:55] Speaker 04:
But if it's refashioning the scope of the subpoena in terms of the documents that are being requested from a particular entity, that seems like a more subtle exercise.

[01:21:04] Speaker 02:
I'm, I guess I'm a little hard pressed to think of a situation when the court finds that the subpoena is valid, has a valid legislative purpose and

[01:21:15] Speaker 02:
The it involved like here it involves specifically defined types of documents.

[01:21:22] Speaker 02:
And specific years.

[01:21:25] Speaker 02:
Um, if, if the court were there, there would have to be an amazing situation before the court would say, no, no, this is too broad.

[01:21:34] Speaker 04:
Well, I don't, I think Mazars, Mazars calls on courts to do that kind of thing.

[01:21:37] Speaker 04:
If you assume Mazars applies, so let's just assume it's a sitting president.

[01:21:41] Speaker 04:
Let's just make it easy.

[01:21:41] Speaker 04:
If Mazars applies, assume as a sitting president, then I think Mazars calls for that because it asks, can't rely on information.

[01:21:47] Speaker 04:
If other sources can reasonably provide it, that may not be something that's within the four corners of the subpoena and maybe that other sources

[01:21:53] Speaker 04:
supply some information that's within subpoena but not others.

[01:21:56] Speaker 04:
And then there's another criteria that says that it can't be no broader than reasonably necessary to support Congress's legislative objective.

[01:22:05] Speaker 04:
It may be that some aspects of the subpoena are broader than reasonably necessary and other aspects are not.

[01:22:12] Speaker 04:
So you could have a situation in which you have to fashion a subpoena that's narrower in ways that are not immediately obvious from criteria that are set out in the subpoena itself.

[01:22:21] Speaker 02:
Well, that I guess my mother responses that's exactly what happened here.

[01:22:25] Speaker 02:
The Supreme Court changed the rules dream as it can.

[01:22:29] Speaker 02:
This river said, here's the new test.

[01:22:31] Speaker 02:
And we said, we can meet that test.

[01:22:34] Speaker 03:
But you issued the subpoenaed issue here after the Mazars, uh, ruling, correct?

[01:22:38] Speaker 02:
Yes, but it's, it's the same.

[01:22:41] Speaker 03:
I understand, but you had the opportunity to tailor your subpoena to what you understood the Supreme court to be required.

[01:22:48] Speaker 03:
Absolutely.

[01:22:49] Speaker 02:
Your honor.

[01:22:49] Speaker 02:
And, and other subpoenas, as were pointed out by, by, uh, my friend, Mr. Norris, some other subpoenas were narrow, more narrowly tailored here.

[01:23:00] Speaker 02:
Again that that this was the exact point of chairwoman Maloney's like a very long single space memo was to show.

[01:23:09] Speaker 02:
Judge made it to show you, if necessary, to show the Supreme Court.

[01:23:13] Speaker 03:
But why doesn't, why as a result of that, why doesn't it all rise and fall with this court's interpretation or ultimately the Supreme Court's interpretation of the breadth of the subpoena?

[01:23:24] Speaker 03:
In other words, if you knew that the Supreme Court was saying, here's what you have to do under these circumstances, and you issue a new subpoena that let's say doesn't conform

[01:23:36] Speaker 03:
Why is it the responsibility of this court to carve out the parts that don't conform, leaving the rest intact, as opposed to saying, this subpoena, Congresswoman Maloney, thank you for trying, but you didn't quite get it in terms of your explanations or whatever.

[01:23:56] Speaker 03:
So if Congress would like to do it over, they have the opportunity to do so.

[01:24:02] Speaker 03:
They hate it and why can't why not that as the remedy.

[01:24:06] Speaker 02:
The reason is because this court in issuing that decision it would be totally inappropriate for this court to say you know you tried but it's just too broad.

[01:24:16] Speaker 02:
That's not what you would do you would say.

[01:24:18] Speaker 02:
A judge made it.

[01:24:19] Speaker 02:
It's too broad because you could get this information from GSA, or it's too broad because you're going back too far.

[01:24:28] Speaker 03:
Yes, we say all of that, and there are parts that are untouched.

[01:24:31] Speaker 03:
The question is, do we only vacate or invalidate the parts we talk about specifically in that way, or do we say we are giving deference to you, Congress, in light of our determination to go back and figure out how you want to go about getting the rest of the information?

[01:24:49] Speaker 02:
First of all, it's not an either or here.

[01:24:52] Speaker 02:
Suppose this court rules that the following years entities don't meet the test.

[01:25:00] Speaker 02:
You would tell us that in an opinion.

[01:25:04] Speaker 02:
The rest of the subpoena, though, would be valid, and therefore you wouldn't have any reason why you would overturn it.

[01:25:09] Speaker 02:
Miss Malone, Chairwoman Maloney, could then and so that subpoena would be valid and that would be enforced except insofar as you struck it down.

[01:25:19] Speaker 02:
And then Chairwoman Maloney could say, oh, you know what?

[01:25:22] Speaker 02:
We actually can on one of those.

[01:25:26] Speaker 02:
We now have more information.

[01:25:28] Speaker 02:
We can show that 2011 actually is key.

[01:25:32] Speaker 02:
So I'm going to go back and try again with a new additional subpoena.

[01:25:38] Speaker 02:
that would address the things that you thought were invalid.

[01:25:42] Speaker 02:
But I can't for the life of me figure out why if you don't have a problem,

[01:25:47] Speaker 02:
with parts of the subpoena, why those would be struck down.

[01:25:50] Speaker 02:
I don't know why that would be.

[01:25:52] Speaker 02:
But again, we could then, yes, we could fix the parts that you said, unless you said there is no possible way this could be fixed every one thing.

[01:26:01] Speaker 02:
But otherwise, sure, we can go back and fix it.

[01:26:04] Speaker 02:
If we think that's a reasonable use of committee resources, et cetera, then we certainly could do that.

[01:26:11] Speaker 02:
So that's why I don't think it's an either or.

[01:26:14] Speaker 04:
Can I ask one question about a different part of the arguments that you put forward in your briefing, which is part of your arguments in your briefing is we need this information because it will inform us as to the contours of future legislation.

[01:26:27] Speaker 04:
We have to understand what the deficiencies may be.

[01:26:30] Speaker 04:
The best way to understand the deficiencies is to understand the financial state of the former president, and that'll inform us going forward.

[01:26:38] Speaker 04:
Another part of your argument, though, is that if we can get access to this information,

[01:26:43] Speaker 04:
it may persuade legislators to come on board.

[01:26:46] Speaker 04:
And for example, there's the Senate that's out there, maybe there's some House members you'd like to bring on board who aren't already on board, but there's other legislators.

[01:26:54] Speaker 04:
As to that aspect of the argument, if it's invalid to have exposure for the sake of exposure, is it valid to have exposure for the sake of exposing it to other legislators?

[01:27:07] Speaker 02:
It is not, Your Honor, because exposure for the sake of exposure, and remember, you know,

[01:27:13] Speaker 02:
languages in several Supreme Court opinions.

[01:27:15] Speaker 02:
And it's also tempered in those very same opinions.

[01:27:18] Speaker 02:
What the court has said is, if you're just exposing private matters for embarrassment, et cetera, that's one thing.

[01:27:28] Speaker 02:
But it's not just private materials for embarrassment.

[01:27:33] Speaker 02:
If you're saying, we now have this material, and we think it shows that the

[01:27:41] Speaker 02:
bill ought to be framed thus in such a way.

[01:27:44] Speaker 02:
And we know that there are skeptics in the Senate because the skeptics already rejected H.R.

[01:27:52] Speaker 02:
1.

[01:27:53] Speaker 02:
And so it's for the legislative process.

[01:27:56] Speaker 02:
It's not just exposure for the sake of exposure and embarrassment.

[01:28:00] Speaker 02:
It's so that we can convince ourselves that something is necessary.

[01:28:06] Speaker 02:
And we then present it to the other chamber and to the sitting president.

[01:28:11] Speaker 02:
to say, here is why.

[01:28:13] Speaker 04:
Is that kind of, is that type of logic going to be available every single time there's exposure for the sake of exposure?

[01:28:19] Speaker 04:
You can always, legislature can always add on, oh, by the way, it's not just for the sake of exposure.

[01:28:23] Speaker 04:
It's so that people will be persuaded.

[01:28:26] Speaker 02:
I wouldn't think so, your honor.

[01:28:28] Speaker 02:
It would, it would, again, if, if what, you know, back to the, um, when the case was argued the first or earlier, you know, I was asked things like, well, what about, um,

[01:28:37] Speaker 02:
the president's diary from the president was 12 years old, something like that.

[01:28:42] Speaker 02:
I doubt that we would ever be able to

[01:28:45] Speaker 02:
match that with something that would convince senators that this is a good bill.

[01:28:51] Speaker 03:
Is your point that it's exposure for in service of legislation that the reason why it's different than what Chief Judge Srinivasan just pointed out is that it's not just exposing people exposure to prompt legislation necessarily, but it could be exposure to demonstrate why a draft bill or something like that is necessary.

[01:29:14] Speaker 02:
Necessary and and

[01:29:16] Speaker 02:
I would think often properly limited.

[01:29:20] Speaker 02:
You know, again, remember here, we would be, we're very cognizant of the fact that we would be legislating in ways affecting the president.

[01:29:30] Speaker 02:
We have to be worried about separation of powers concerns.

[01:29:32] Speaker 02:
We have to be worried as a president going to sign this.

[01:29:35] Speaker 02:
So there are ways that we might then say, okay, we originally thought it'd be a good idea to, you know, add another provision, but

[01:29:44] Speaker 02:
The information we got just won't really support that fully, just partially.

[01:29:50] Speaker 02:
So let's leave that part out.

[01:29:52] Speaker 02:
So it's all about crafting the legislation.

[01:29:55] Speaker 02:
Can you speak to confidentiality?

[01:29:59] Speaker 03:
That seemed to be a big point that your friend brought up.

[01:30:03] Speaker 02:
Absolutely.

[01:30:03] Speaker 02:
It is a very major part of their argument.

[01:30:09] Speaker 02:
And it's wrong.

[01:30:13] Speaker 02:
Remember that we quoted from our our brief, you know, the measures quoted to the point about the much of the purpose of Congress is to look into what the government is doing and discuss it and have it, you know, part of the public discussion.

[01:30:31] Speaker 02:
Obviously, as we know, it has to be tied to legislation.

[01:30:34] Speaker 02:
That's fine.

[01:30:36] Speaker 02:
The Oversight Committee in particular operates in public.

[01:30:42] Speaker 02:
So think about how we would do, how would we possibly do legislation here if it was confidential?

[01:30:50] Speaker 02:
It would have to be, I can't imagine a circumstance when we would be saying to the 430th member of the House, you know what, we've shown this already to 429, we're just not going to show it to you.

[01:31:06] Speaker 02:
Clearly, it has to be available for all members of Congress, right?

[01:31:10] Speaker 02:
They're being asked to vote on something.

[01:31:13] Speaker 01:
But Mr. Letter, Congress has often faced this dilemma, has it not?

[01:31:19] Speaker 01:
And it has figured out ways that can protect the individual as well as the institution.

[01:31:27] Speaker 01:
And what I'm concerned about here is this is not simply a subpoena coming to the court in the context of a private civil action.

[01:31:42] Speaker 01:
or even a government action against a private party in the traditional sense.

[01:31:49] Speaker 01:
So my concern here is, I know the Supreme Court in Eastland talked about, you know, the committee doesn't have to give us a chapter and verse.

[01:31:59] Speaker 01:
We want to be sure it's serious.

[01:32:00] Speaker 01:
We want to be sure it's just not a fishing expedition.

[01:32:04] Speaker 01:
And so Congresswoman Mahoney goes on at great length

[01:32:09] Speaker 01:
This court may not agree with everything she says, but the question is sort of what is our role here?

[01:32:18] Speaker 01:
And I think what you're being pressed and you're trying to be responsive, but I'm concerned that the court not view itself as some sort of superintendent here of the committees,

[01:32:37] Speaker 01:
decisions in terms of what is a relevant inquiry for purposes of future legislation, even if it proves to be wrong.

[01:32:49] Speaker 01:
So with that introduction, the district court says, look, current law requires candidates and the president to disclose tons of financial information.

[01:33:06] Speaker 01:
And furthermore, no one's mentioned it, but a president has various options.

[01:33:14] Speaker 01:
And as we know, previous presidents who have been financially very well off have used the blind trust option.

[01:33:23] Speaker 01:
Others have simply disclosed.

[01:33:26] Speaker 01:
So it's not as though the current system

[01:33:32] Speaker 01:
does not take into account some of these questions we're raising.

[01:33:39] Speaker 01:
So given that context, the district court says, look, I'm troubled.

[01:33:46] Speaker 01:
The questions here suggest that Mr. Trump's argument is serious.

[01:33:55] Speaker 01:
The committee says, we understand he is a former president.

[01:33:59] Speaker 01:
We understand he

[01:34:01] Speaker 01:
is concerned obviously about his political future, much less his own personal privacy.

[01:34:10] Speaker 01:
And I'm just wondering whether the court's role isn't limited and it may be limited in ways that the committee itself has to determine

[01:34:29] Speaker 01:
how to proceed.

[01:34:30] Speaker 01:
I mean, there are many people in Congress who may be thinking of running for office again, and they understand that while your law may speak specifically to a president, it can affect them as well.

[01:34:45] Speaker 01:
So this very fine line that at least I thought Eastland tried to clarify a little

[01:34:53] Speaker 01:
makes me nervous about this sort of very active approach where the court rewrites the committees, well, where the one branch is rewriting the subpoena of another branch.

[01:35:10] Speaker 01:
And I want to know just how far you think our

[01:35:16] Speaker 01:
authority goes in terms of what we are concerned about in terms of not only the former president's concerns, but the ability of the House to carry out or the Congress to carry out its legislative responsibility.

[01:35:35] Speaker 01:
Very fine lines.

[01:35:36] Speaker 01:
And if you say Mazer, the Mazer test for presidents is met here

[01:35:44] Speaker 01:
were we to agree with that, then that is the end of our discussion.

[01:35:48] Speaker 01:
I gather you say, well, we could say, sure, for 2014 to 15, but not back to 2011, despite the explanation that you've given.

[01:36:02] Speaker 01:
Can you just discuss that a little more?

[01:36:04] Speaker 02:
Yes, I'd be happy to, Your Honor.

[01:36:07] Speaker 02:
I think there are some very important points in your question.

[01:36:12] Speaker 02:
I agree completely with you that if the Mazers test is met, then I think you're absolutely right, then the court's function is done.

[01:36:24] Speaker 02:
And I do think that, again, one of the key points in your question is something that Judge Jackson, I believe, started the argument out with, which is this court obviously has to be very concerned about the separation of powers because it should not be

[01:36:42] Speaker 02:
supervising Congress.

[01:36:45] Speaker 02:
So I think in some of the answers that I've given already, but I want to reemphasize them in light of, again, the point you've made is that this court would only strike down something if it's some part of the subpoena, if it really is quite clearly beyond Congress's authority.

[01:37:07] Speaker 02:
And in fact, there aren't many Supreme Court cases or cases from this court where you find that the courts have said, well, this subpoena has a valid legislative purpose.

[01:37:20] Speaker 02:
But this one point just goes too far.

[01:37:23] Speaker 02:
In McGrain, for example, which is, I think, the seminal case in this area, the Supreme Court unanimously said it's a question of could legislation be had

[01:37:35] Speaker 02:
And then it made clear that you basically ignore the political chatter and the political screaming and yelling, and you leave it to Congress to determine, is this something that relates to, is pertinent to, and pertinent meaning, in a very broad sense, Congress's purposes, valid legislative purposes.

[01:37:57] Speaker 02:
So I take your question

[01:38:03] Speaker 02:
very seriously that these are the exact things that this court should have in mind and why we think Judge Maeda, while he got a lot right, he erred in just too loosely said, well, you could get this information elsewhere, which again, we think Mazers is not applicable here.

[01:38:28] Speaker 02:
And so that would not be

[01:38:30] Speaker 02:
a factor to be taken into account?

[01:38:33] Speaker 01:
As I read the district court, he said more than that.

[01:38:37] Speaker 01:
And I just want to be clear on your response to that.

[01:38:39] Speaker 01:
He said, not only did he think he could get it from other sources, other billionaires, and had a footnote mentioning one in particular.

[01:38:51] Speaker 01:
And I wondered sort of what obligation that person who served in the administration would have to

[01:39:00] Speaker 01:
cooperate with Congress, but the other point he made was because the current law requires so much to be disclosed so that there's already a lot of information out there and the committee has indicated it wants to move incrementally and

[01:39:23] Speaker 01:
So he thought it was appropriate, as I understand it, for a court to take that into account in deciding to reform the subpoena.

[01:39:36] Speaker 01:
What's your response?

[01:39:37] Speaker 01:
Because you know what we're going to hear on rebuttal is very much the type of argument that appellants presented in opening and in their brief.

[01:39:52] Speaker 02:
The response your honor is that that we do believe there that the judge made it aired and then you're right he just made it gave different rationales for the 3 different categories and you're absolutely right for financial disclosure, he said there already is significant disclosure.

[01:40:10] Speaker 02:
But that's exactly what we say we need to look into we know there's significant disclosure already and we think that is constitutional and we want to figure out how much more is appropriate without becoming unconstitutional and that is a judgment the judgment for House to make as far as how the legislation should be crafted.

[01:40:33] Speaker 02:
and therefore what information might be relevant to making that determination.

[01:40:38] Speaker 02:
We think it should be an extremely rare instance where a judge would say, I think you already have enough information.

[01:40:45] Speaker 02:
And in fact, it's very hard

[01:40:47] Speaker 02:
to see how Judge Maeda could have thought that since Judge Maeda, this isn't a situation where there's privileged information that the judge has seen in camera.

[01:40:56] Speaker 02:
And so the judge can say to us, I've looked and there is nothing here that is useful for you.

[01:41:01] Speaker 02:
Judge Maeda is as ignorant as we are.

[01:41:04] Speaker 02:
So I'm not, I'm obviously not using that term pejoratively.

[01:41:08] Speaker 02:
He doesn't know what's in this other, the other materials.

[01:41:11] Speaker 02:
Then Judge Maeda said for the GSA lease, he limited it to three organizations.

[01:41:18] Speaker 02:
Just frankly, we think this is an obvious error because the, as I mentioned already, her August memorandum and the more recent October 8th letter to GSA shows that there were all five organizations that we are covered by the subpoena were very heavily involved in moving money among each other and affecting each other's financial positions.

[01:41:45] Speaker 02:
And on emoluments, as I think I've said already, by saying two years, that frankly doesn't make sense when you're dealing with a complex financial situation of trying to figure out how far back you go.

[01:42:03] Speaker 02:
You know, my own financial situation is such that it's basically my salary, so it's whatever comes in every year.

[01:42:10] Speaker 02:
But I think Mr. Trump's situation is quite different from mine.

[01:42:13] Speaker 02:
And you need to go back, at least we think, to 2011 when GSA solicited bids.

[01:42:19] Speaker 02:
I hope I've addressed the very serious and valid points that you made, Judge Rogers.

[01:42:27] Speaker 03:
Thank you.

[01:42:28] Speaker 03:
I'll just ask one final question.

[01:42:32] Speaker 03:
So I take it you would have us hold that the Mazers heightened scrutiny test does not apply because what is being subpoenaed now is the records of a former president, not a sitting president.

[01:42:45] Speaker 03:
But do we need to ignore the fact that the subpoena, the content, the intention of Congress to subpoena this president occurred when he was a city?

[01:42:58] Speaker 03:
Your friend keeps pointing to that.

[01:43:00] Speaker 03:
He keeps saying, yes, I understand that we have this distinction now that he's no longer, but the house initially subpoenaed him and sought this information while he was a sitting president.

[01:43:12] Speaker 02:
That's correct.

[01:43:13] Speaker 03:
So why wouldn't the Mazars test apply on that basis?

[01:43:18] Speaker 02:
Because, and I know you've heard some of this before from me, but I'll say it again.

[01:43:24] Speaker 02:
As, as your panel said, uh,

[01:43:28] Speaker 02:
silo law says this, but any number of Supreme Court just say it.

[01:43:32] Speaker 02:
We have only one president at a time.

[01:43:35] Speaker 02:
So to the extent there are separation of powers issues in majors, which was, that's, that's really what the opinion was about.

[01:43:42] Speaker 02:
Those are, as I've said, virtually irrelevant with this one minor aspect about, well,

[01:43:51] Speaker 02:
would it have an impact on the presidency?

[01:43:53] Speaker 03:
And by the way, I have heard that argument.

[01:43:58] Speaker 03:
What I'm trying to suggest is do we have something like a continuing violation issue?

[01:44:04] Speaker 03:
This comes up in a totally separate section of the law.

[01:44:07] Speaker 03:
But the idea being you might be right that Mazars doesn't apply if the original subpoena arrived at the president's Mar-a-Lago home after he was done.

[01:44:18] Speaker 03:
Yeah, but to the extent that it started while he was president.

[01:44:23] Speaker 03:
Why shouldn't we say that not withstanding the fact that he is no longer president today when we're ruling on this, the applicable standards should be the one that would apply to sitting presence.

[01:44:37] Speaker 02:
I come back to, and I think this was one of the early questions from Chief Judge Srinivasan.

[01:44:43] Speaker 02:
If this subpoena had come in today, would there be any problem?

[01:44:46] Speaker 02:
I think the answer is obviously not.

[01:44:51] Speaker 02:
And it is because the Constitution does draw a clear line between a president and an ex-president.

[01:44:58] Speaker 02:
An ex-president is somebody who rejoins the great unwashed.

[01:45:03] Speaker 02:
And for example, we know that one, because any number of Supreme Court decisions tells we have only one president at a time, OLC saying you can prosecute somebody who's no longer president.

[01:45:14] Speaker 02:
In addition, we mentioned in our brief the incompatibility clause, which says that nobody in the executive branch can serve in Congress.

[01:45:25] Speaker 02:
Well, the moment you're out of the presidency, it could be, let's say,

[01:45:32] Speaker 02:
For example, the president's term, two terms are done.

[01:45:35] Speaker 02:
On January 20th, you're no longer the president.

[01:45:39] Speaker 02:
On January 19th, let's say a senator had passed away and a governor is thinking about naming, let's say under state law, the government gets to name the person to go into that Senate position.

[01:45:52] Speaker 02:
On January 19th, the governor could not name the president.

[01:45:57] Speaker 02:
On the afternoon of January 20th, he could name the ex-president.

[01:46:02] Speaker 02:
And it wouldn't matter that he's a recent ex-president.

[01:46:06] Speaker 02:
He is not the president.

[01:46:08] Speaker 02:
And therefore, as Mazers talked about, the hydraulic pressure between the branches is gone the moment he is no longer the president.

[01:46:21] Speaker 02:
So that thank you, Mr. Thank you very much.

[01:46:23] Speaker 04:
Don't have additional questions for you at this time.

[01:46:25] Speaker 04:
And I know you're across the panel, so we'll give you a little bit of time for rebuttal on the cross appeal.

[01:46:30] Speaker 04:
Um, Mr Norris, why don't we give you four minutes for rebuttal?

[01:46:36] Speaker 05:
Thank you, Your Honor.

[01:46:38] Speaker 05:
trying to talk about the issue of remedy which I didn't get to discuss in my part.

[01:46:42] Speaker 05:
We do think the rule from this court's decision in Patterson that says a subpoena from Congress must be good in its entirety applies to this context.

[01:46:50] Speaker 05:
Patterson of course is a criminal case.

[01:46:52] Speaker 05:
This court has no case that says in an injunction case there should be a different rule.

[01:46:55] Speaker 05:
In fact, my memory is that in Senate Select, the court struck down the entire subpoena or declined to enforce the entire subpoena.

[01:47:03] Speaker 03:
Is that a criminal context too?

[01:47:05] Speaker 05:
Senate Select was an adjunction that Congress tried to bring against President Nixon.

[01:47:08] Speaker 03:
I see.

[01:47:10] Speaker 05:
And of course, that rule is a good idea here.

[01:47:12] Speaker 05:
It prevents inter-branch conflict by making Congress do the hard work of narrowing its subpoena before it's issued.

[01:47:18] Speaker 05:
And that's a major theme of the Mazars opinion, that these things should stay out of court.

[01:47:22] Speaker 05:
The way to do that is to put the onus on Congress to come forward with a narrow subpoena.

[01:47:27] Speaker 05:
My friend says that we would never issue such a subpoena that was grossly overbroad, but we have this case and this subpoena, which is, of course, massively overbroad compared to the legislative objectives that have been offered.

[01:47:39] Speaker 05:
It also prevents courts from tinkering with subpoenas.

[01:47:42] Speaker 05:
Subpoenas are not statutes.

[01:47:43] Speaker 05:
They're not part of the public law that everyone can interpret and enforce.

[01:47:46] Speaker 05:
They're sort of the internal machinery of one House of Congress, much like the rules, which this court has said we would be very hesitant to start rewriting the House rules ourselves in distinction to a statute.

[01:47:58] Speaker 05:
And I think not applying the Patterson rule here was we saw how it played out with Judge Mather.

[01:48:03] Speaker 05:
You know, I think he found parts of the subpoena unenforceable, which we agree with those parts of his opinion.

[01:48:09] Speaker 05:
But then he had to do a sort of rough cut severability analysis.

[01:48:12] Speaker 05:
He he said only these custodians and only these years.

[01:48:15] Speaker 05:
But that didn't really address the overbreath problem in the case.

[01:48:18] Speaker 05:
If you look at the emoluments rationale, Judge Mattis said you can only have twenty seventeen and eighteen when he was president.

[01:48:25] Speaker 05:
But it didn't go on to say and you can only have documents that would reasonably show emoluments, which are payments from domestic or foreign governments.

[01:48:34] Speaker 05:
Because I think, to his credit, I think he didn't feel comfortable going on and saying, I'm gonna rewrite this so that you're now requesting things that you didn't request originally.

[01:48:42] Speaker 05:
And with the lease rationale, Judge Metta said, you can have these three entities, which by the way, are the only three entities that were addressed in the Maloney memo.

[01:48:51] Speaker 05:
And Judge Metta asked my friend at argument, which entities are covered by this rationale.

[01:48:56] Speaker 05:
He didn't list all the entities he's trying to list for the first time on appeal.

[01:48:59] Speaker 05:
But anyway, he limited to the entities,

[01:49:02] Speaker 05:
But, you know, he didn't limit it to documents that went into the GSA lease.

[01:49:07] Speaker 05:
He didn't limit it to 2011 when the bid was made.

[01:49:09] Speaker 05:
He gave them everything from every document, lease related or lease unrelated, from every year.

[01:49:14] Speaker 05:
The rule in Patterson, he applied it.

[01:49:17] Speaker 05:
It would make them go back to the drawing board, but it's not like they couldn't come back with a new subpoena.

[01:49:21] Speaker 03:
They would do the hard work.

[01:49:22] Speaker 03:
I see a sort of tension in this argument in terms of congressional, excuse me, court power.

[01:49:29] Speaker 03:
that I'm interested in, which is, on the one hand, you say, with respect to the determination of whether or not Congress has exceeded its authority, you want the court to dive in.

[01:49:40] Speaker 03:
You want us to dig deep, figure out exactly what their rationale is, what documents they're looking for, make them provide sufficient justification.

[01:49:52] Speaker 03:
But when it comes to what happens on the back end once we agree with you,

[01:49:57] Speaker 03:
that they haven't done enough or that they are overbroad or whatever, you want us to stay out of it and don't help to recognize the portions of the subpoena that they actually got right and that were valid.

[01:50:12] Speaker 03:
Isn't there an inconsistency in terms of what you say the court should be doing in that line of thinking?

[01:50:18] Speaker 05:
I don't think so.

[01:50:18] Speaker 05:
I think it's a constitutional versus non-constitutional distinction in part.

[01:50:22] Speaker 05:
This court has to apply the Constitution.

[01:50:24] Speaker 05:
It has to make sure Congress stays within its Article 1 authority with these subpoenas.

[01:50:28] Speaker 05:
And to Judge Rogers' point, there was supplemental briefing that was requested in Mazars by the Supreme Court about whether this is a political question or not.

[01:50:35] Speaker 05:
The court should just stay out of it entirely.

[01:50:37] Speaker 05:
Both sides said no.

[01:50:39] Speaker 05:
Yes.

[01:50:40] Speaker 05:
And then the Supreme Court said now that there's a role for the judiciary here.

[01:50:44] Speaker 05:
Mazars uses interesting language.

[01:50:46] Speaker 05:
It says courts should insist on a subpoena that is no broader than reasonably necessary, which I think supports the remedy that we want here, which is an exercise of remedial authority.

[01:50:57] Speaker 05:
And it's not like we're asking you to enjoin Congress or issue an order that will bind a coequal branch.

[01:51:04] Speaker 05:
In this case in particular, we have Mazars here.

[01:51:06] Speaker 05:
All we need is a declaration.

[01:51:08] Speaker 05:
This subpoena is invalid as written.

[01:51:10] Speaker 05:
The court could explain how it's invalid in the opinion.

[01:51:13] Speaker 05:
That would be enough to give us relief.

[01:51:14] Speaker 05:
Congress would go back to the drawing board.

[01:51:18] Speaker 04:
Thank you.

[01:51:18] Speaker 04:
Thank you, Mr Norris.

[01:51:20] Speaker 04:
Mr Latter will give you a little bit of time for a little too.

[01:51:22] Speaker 04:
Why don't you give you will give you four minutes just as a matter of equivalency, but you're not required to use it.

[01:51:34] Speaker 02:
Your honor, I feel like I spoke enough.

[01:51:37] Speaker 02:
I didn't hear anything in this rebuttal to reply to.

[01:51:40] Speaker 02:
If the court has any further questions, I'm happy to answer them.

[01:51:43] Speaker 02:
Otherwise, I think I thank you for your time.

[01:51:47] Speaker 04:
Thank you, counsel.

[01:51:48] Speaker 04:
Thank you to both counsel.

[01:51:49] Speaker 04:
We'll take this case under submission.