[00:00:02] Speaker 00: Committee on Ways and Means, United States House of Representatives versus United States Department of the Treasury, et al. [00:00:11] Speaker 00: Donald J. Trump, et al. [00:00:12] Speaker 00: at balance. [00:00:13] Speaker 00: Mr. Norris for the balance. [00:00:15] Speaker 00: Mr. Leder for the APOE Committee on Ways and Means, United States House of Representatives. [00:00:21] Speaker 00: Mr. Sinstad for the APOE's US Department of Treasury, et al. [00:00:28] Speaker 03: Mr. Norris, good morning. [00:00:29] Speaker 03: Please proceed. [00:00:31] Speaker 01: Good morning, Judge Henderson. [00:00:32] Speaker 01: May it please the court. [00:00:34] Speaker 01: My friend Mr. Letter and I have litigated four of these cases together. [00:00:38] Speaker 01: We've litigated whether the House can get President Trump's accounting records, his banking records, his state tax returns, and now his federal tax returns. [00:00:48] Speaker 01: But none of those other cases were decided on a motion to dismiss. [00:00:53] Speaker 01: This one shouldn't have been either. [00:00:55] Speaker 01: The key question in these cases is whether the committee has a legitimate legislative purpose. [00:01:01] Speaker 01: If we didn't plausibly allege a non-legislative purpose here, then no one ever could. [00:01:07] Speaker 01: As we thoroughly explained in our pleading, committee members stated non-legislative purposes for obtaining President Trump's tax returns over 150 times. [00:01:17] Speaker 01: Chairman Neal himself admitted that his stated legislative purpose was a post hoc rationalization made for litigation. [00:01:25] Speaker 01: And the United States federal government for two years, formally concluded that his purpose was exposure for the sake of exposure. [00:01:33] Speaker 01: These allegations would be sufficient. [00:01:36] Speaker 06: not possible that a committee or an actor, an article one actor could have a legislative purpose and another purpose. [00:01:45] Speaker 06: Would that not be possible to have more than one purpose? [00:01:49] Speaker 01: That is possible, Judge Sintel. [00:01:51] Speaker 06: Does that disenchant their legislative purpose if they have some other purpose? [00:02:01] Speaker 06: And does that throw out the value of their legislative purpose? [00:02:05] Speaker 01: Judge Santel, that assumes that we pleaded that they had two purposes, but our factual pleadings are that they had one purpose. [00:02:12] Speaker 06: I understand that. [00:02:13] Speaker 06: I'm assuming no such thing. [00:02:14] Speaker 06: I'm saying your pleading may not carry the ball for you because there may be a legislative actor who has two purposes. [00:02:23] Speaker 06: You had legs, we have one. [00:02:25] Speaker 06: And I'm asking you, why isn't it possible that they have two? [00:02:30] Speaker 01: It's not possible because we we've alleged as a factual matter that they have one in the government can clear allegations are not binding on them or anybody else on the court. [00:02:39] Speaker 06: You you only one purpose, but that doesn't mean they don't have two purposes. [00:02:46] Speaker 01: I think it does. [00:02:46] Speaker 01: That's a factual allegation that the court has to accept as true at the pleading stage. [00:02:50] Speaker 01: But, but just until even, you know, if that was a competing interpretation, you also have to construe everything in our favor at the pleading stage. [00:02:58] Speaker 06: That's not just a factual, that's a mixed question of fact and law about the two purposes. [00:03:05] Speaker 06: And I do not see why the court would be bound by that. [00:03:09] Speaker 06: We would not have discriminatory aesthetic. [00:03:13] Speaker 01: I disagree with that. [00:03:14] Speaker 01: I think purpose is a factual question, but just until a couple other answers, if you don't agree with me on that is we have plausibly alleged that there was only one purpose. [00:03:22] Speaker 01: It was an illegitimate purpose because that's what the federal government concluded. [00:03:25] Speaker 01: That's what chairman Neil said. [00:03:27] Speaker 01: That's what all of his colleagues said over and over hundreds of times, both before and after the request was made. [00:03:32] Speaker 01: But the case law also does somewhat contemplate the situation that you're talking about. [00:03:38] Speaker 01: Kilburn versus Thompson, the very first case in this area asks what the gravaman [00:03:42] Speaker 01: of the request is. [00:03:44] Speaker 01: And cases like McGrane and Barron Blatt ask, what is the primary purpose? [00:03:49] Speaker 01: Or was there an illegitimate purpose that was affirmatively avowed? [00:03:53] Speaker 01: So the case law does contemplate the situation where they may have had two purposes. [00:03:57] Speaker 01: And it says Congress still loses if one of the affirmatively avowed purposes was illegitimate or if the illegitimate purpose was driving the ship instead of the legitimate legislative purpose. [00:04:07] Speaker 01: And that's what we think is happening here, Judge Dintel, but more importantly, that's pretty standard talk for a legitimate legislative purpose test, but this is not a standard case. [00:04:17] Speaker 01: Everyone here agrees that the committee's demand for President Trump's tax information. [00:04:22] Speaker 05: Council, you say that this case shouldn't have been decided on motion to dismiss. [00:04:29] Speaker 05: How should it have been decided with respect to the question of determining what the legislative purpose was? [00:04:38] Speaker 05: There's supposed to be some discovery on that. [00:04:40] Speaker 05: You're supposed to be able to take depositions of the chairman of the House Ways and Means Committee. [00:04:47] Speaker 05: What procedural irregularity are you complaining about here? [00:04:54] Speaker 01: Sure, Judge Wilkins well I was about to mention that this case implicates the separation of powers so the legislative purpose test is subject to heightened scrutiny where the Supreme Court has said the committee has to come forward with evidence about what it's doing so this is a uniquely inappropriate case for emotion to dismiss, but I understand your question and. [00:05:13] Speaker 01: Our right to discovery here is limited because we can't get discovery normally of Congress, they have legislative immunity, but it's not non existent I think Judge Bates his opinion in the Jewish war veterans case explains this exactly right, which is, there are things that are not protected by legislative privilege but that do bear on purpose that we could get our hands on. [00:05:34] Speaker 01: communications between the executive branch and the committee are not privileged, as Judge Bates explains, and they would shed light on our First Amendment claim, for example, in terms of how much influence to the committee have over the government's decision. [00:05:49] Speaker 01: It would also bear on what accommodation efforts, if any, were attempted by the government, which speaks to whether this satisfies heightened scrutiny or not. [00:05:58] Speaker 01: We could also get our pleading is fairly robust in the number of statements from committee members and Chairman Neal about their purpose, but we don't have them all. [00:06:07] Speaker 01: We could also get their public statements, which are not protected by legislative privilege, and we could also get [00:06:14] Speaker 01: what happened. [00:06:15] Speaker 01: So there was a there was a sit down between the IRS and the committee to explain the presidential audit process. [00:06:21] Speaker 01: We're not sure the full extent of what the committee already knows about the process based on its communications and accommodation efforts with the executive branch. [00:06:28] Speaker 01: We could get that in discovery as well which speaks directly to heightened scrutiny. [00:06:33] Speaker 06: The district judge debated between two tests for purposes of this case that the Nixon test I guess made [00:06:48] Speaker 01: We understand our position is that this court should apply Mazars. [00:06:56] Speaker 01: Sure. [00:06:57] Speaker 01: Mazars has four requirements that it's a heightened version of the legitimate legislative purpose test for when Congress's demands implicate the separation of powers. [00:07:06] Speaker 01: It asks, is, is this request justified by the significant step of involving a president justified, or can you get this information from other sources. [00:07:16] Speaker 01: It asks whether the request has been. [00:07:18] Speaker 01: specifically articulated and whether it's supported by evidence, it asks whether it's broader than reasonably necessary, and it asks whether it imposes undue burdens on the presidency, and any one of those requirements is violated, the committee loses and can't make the demand. [00:07:34] Speaker 01: That's Mazars. [00:07:36] Speaker 01: The Nixon versus GSA test [00:07:38] Speaker 01: Our position, and I don't mean to question the premise of your question, but our position is that test doesn't possibly make any sense in this context. [00:07:50] Speaker 01: The part of Nixon versus GSA that Judge McFadden relied on is the test for when a statute violates Article II, and the test is you ask how much it intrudes on the presidency, and you weigh that against how much of a congressional interest is at stake, and you weigh Congress versus the president, and you balance it out, figure out who wins. [00:08:12] Speaker 01: Our position is that Nixon versus GSA is it's just the Youngstown Steel test. [00:08:17] Speaker 01: It goes back to Justice Jackson. [00:08:19] Speaker 01: It's the general test for when you are weighing an Article II challenge to a statute. [00:08:25] Speaker 01: It has nothing to do with a request from Congress. [00:08:27] Speaker 01: It has nothing to do with the fact that Nixon was a former president. [00:08:30] Speaker 01: None of that applies. [00:08:31] Speaker 01: Nixon was making an argument that any citizen can make that the statute there was unconstitutional because it burdened the sitting president's executive power. [00:08:40] Speaker 01: This case is different. [00:08:41] Speaker 01: This is a congressional request. [00:08:43] Speaker 01: The test for congressional request has always been the legitimate legislative purpose test and mazars tells you how to apply that year. [00:08:52] Speaker 01: And if I could just talk about how to apply mazari to this case. [00:08:57] Speaker 01: We think every step of the Mazars test is violated by this request, but I'll say we're at the pleading stage. [00:09:03] Speaker 01: So what the question is, did we plausibly allege a claim that this request will violate heightened scrutiny? [00:09:09] Speaker 01: And we think we did for several reasons. [00:09:11] Speaker 01: This request does not, the committee's stated legislative purpose does not justify the significant step of involving a president. [00:09:20] Speaker 01: The committee. [00:09:20] Speaker 01: I think Judge McFadden was exactly right that you have to figure out what type of legislation the committee is allowed to be considering here so it has to be legislation that this request would tell the committee something about, and that legislation has to be constitutional. [00:09:37] Speaker 01: The core piece of legislation that the committee has used in this case is that they want to codify the presidential audit program. [00:09:45] Speaker 01: They want to pass a statute that says the IRS has to regulate or has to audit the president. [00:09:50] Speaker 01: And here's how they have to do it. [00:09:51] Speaker 01: But Judge McFadden was exactly right that that statute would be unconstitutional. [00:09:55] Speaker 01: You can't tell subordinates of the executive branch that they have to investigate the head of the executive branch against the executive branches, against the head's wishes. [00:10:05] Speaker 01: That's unconstitutional. [00:10:06] Speaker 01: So what Judge McFadden said is the statutory litmus test here are laws that don't require the IRS to audit presidents, but that just regulate the process by funding the IRS and its ability to regulate presidents or by increasing the number of staff they have available. [00:10:21] Speaker 01: But those don't justify a detailed request for specific individual tax returns and audit files of a president. [00:10:29] Speaker 01: The committee, the presidential audit process itself is already written down in the Internal Revenue Manual. [00:10:36] Speaker 01: And my friends will tell you, well, some parts of that manual are not followed anymore, but they conveniently never tell you which ones those are, why they matter, if they're significant at all. [00:10:44] Speaker 01: And the IRS we know from two declarations that they submitted in this case at docket 44 dash four and 44 dash three, that there was a three and a half hour briefing between the IRS and the committee, telling them exactly what they wanted to know about the contours of the presidential audit program. [00:11:01] Speaker 01: Now, if that briefing was insufficient, we're never told how it was insufficient, and we're never told why there was not a follow-up request under the Biden. [00:11:10] Speaker 05: Are you contending that a valid legislative purpose has to be the purpose to pass a bill or to introduce a bill? [00:11:21] Speaker 05: It has to be. [00:11:22] Speaker 05: It can't be oversight? [00:11:26] Speaker 01: It can't be oversight in a vacuum. [00:11:28] Speaker 01: It has to be to study legislation that would be constitutional if passed. [00:11:33] Speaker 01: And I say oversight in a vacuum because we know it can't be exposure for the sake of exposure. [00:11:38] Speaker 01: That's very clear. [00:11:39] Speaker 05: No, I'm saying if there is an audit program and Congress putting aside President Trump's tax returns, Congress [00:11:56] Speaker 05: issues a request for information and it's for the purpose of oversight of whether the audit program is operating properly. [00:12:09] Speaker 05: Would that request be consistent with a valid legislative purpose? [00:12:15] Speaker 01: I think Judge Wilkins stated, just like you stated it, that's too unclear and nonspecific to satisfy heightened scrutiny. [00:12:23] Speaker 01: The Supreme Court in Mazar said, because this is an elevated test, we want Congress to adequately identify what it's doing with specificity and not use vague and loosely worded explanations. [00:12:34] Speaker 01: And that's because you're dealing with a president. [00:12:37] Speaker 01: The committee says we're looking at a president-specific legislation here. [00:12:41] Speaker 01: President specific legislation is a constitutional minefield, they need to explain what they're doing so we can assess whether the information will tell them anything relevant, and whether the bill they're considering would be constitutional. [00:12:52] Speaker 01: So I'll give you an example. [00:12:54] Speaker 01: They claim to that one of the things judgment fatten said they might be able to legislate is. [00:12:59] Speaker 01: What's the staffing situation for presidential audits, but if my friends are considering a bill that would prevent the president from removing an IRS officer who's auditing his tax returns that presents a serious constitutional questions the Supreme Court has addressed removal cases a series of times in recent years. [00:13:16] Speaker 01: but we don't know stated at that level of generality. [00:13:19] Speaker 01: The only specificity in this request is that they want to codify the program. [00:13:25] Speaker 01: Judge McFadden explained why that type of legislation would violate Article 2, and no one defends its constitutionality here. [00:13:32] Speaker 01: It's all about funding and staffing, and those types of predictive broad policy judgments just are not enough to involve a president. [00:13:41] Speaker 01: If I could give another example, [00:13:44] Speaker 05: The idea that this is about the IRS's budget is just- How are they not, you're saying that they're not specific enough to involve a president, but the audit program is specifically directed to presidential tax returns and has been around for 50 years. [00:14:04] Speaker 01: Correct. [00:14:04] Speaker 01: But the question is, what do they want to do about the audit program in some specific sense? [00:14:10] Speaker 01: I mean, they don't have to have it exactly direct. [00:14:12] Speaker 01: They don't have to have the text of a draft bill or anything like that. [00:14:15] Speaker 01: But they've got to give this court a sense of the legislation that they're thinking about and whether it would be constitutional. [00:14:21] Speaker 01: And when you regulate presidents, you run into all sorts of problems. [00:14:24] Speaker 01: And so Judge McFadden backed away from that problem and said, well, how about legislation that just funds the IRS? [00:14:31] Speaker 01: This is one audit of one president per year. [00:14:34] Speaker 01: This has nothing to do with the IRS's budget. [00:14:36] Speaker 01: Just last week, the IRS's budget was increased by $650 million. [00:14:40] Speaker 01: I think it's like $12.5 billion budget now. [00:14:43] Speaker 01: That has nothing to do with one audit. [00:14:45] Speaker 01: They audit millions of people. [00:14:47] Speaker 01: It's just not connected in any way to seeing President Trump's individual tax returns. [00:14:52] Speaker 01: And I think perhaps the easiest reason why this fails heightened scrutiny and the most important point I want to make [00:14:58] Speaker 01: is that the committee has asked for the president's audit files for audits that are still open and ongoing. [00:15:06] Speaker 01: If they want to understand how presidents are audited, they haven't even requested a single audit. [00:15:11] Speaker 01: They're still, they're not even over yet. [00:15:13] Speaker 01: So there's nothing that they would be able to understand about how the audit went, whether the president was treated fairly or unfairly, because they're still ongoing. [00:15:21] Speaker 01: And [00:15:22] Speaker 01: And in fact, by by injecting itself into ongoing audits the committee is corrupting any usefulness of the data, it would get it is interfering with the audit now so they can't measure how the IRS goes about this job neutrally and normally because it's itself injecting itself into the audit process. [00:15:41] Speaker 01: The committee also says, I guess another fatal flaw with this is that the committee claims to be studying the presidential audit program, but it's requested tax returns and audit files for entities in years that are not subject to the presidential audit program. [00:15:56] Speaker 01: It's asked for not just president Trump's tax returns and audit files, but his businesses, which we've alleged no one disputes and the IRS knows better. [00:16:06] Speaker 01: Those businesses are not subject to the presidential audit process because they're not presidents. [00:16:10] Speaker 01: They have nothing to do with the stated rationale. [00:16:13] Speaker 01: The committee has also asked for a year before and a year after President Trump was in office, the presidential audit program doesn't apply when you're not in office. [00:16:22] Speaker 01: And the only explanation that they give is that while sometimes audits go back further to get years before someone was in office, but [00:16:32] Speaker 01: One, there's no evidence that these audits went back further. [00:16:36] Speaker 01: Two, that doesn't explain why you would go forward in the future to 2020. [00:16:39] Speaker 01: They're not going to go forward. [00:16:40] Speaker 01: They go backwards. [00:16:42] Speaker 01: And three, this logic doesn't have any limit. [00:16:46] Speaker 01: There's no evidence yet that they've gone back to further years. [00:16:49] Speaker 01: And so this would allow them to go back as far as they want. [00:16:52] Speaker 01: It's an unlimited circular form of logic that shouldn't satisfy heightened scrutiny. [00:16:57] Speaker 01: And even if it did, even if you thought they needed a particular audit of a particular taxpayer, which is what they say in their request, [00:17:07] Speaker 01: We've alleged and no one's disputed because it's true that the audit of the president is no different than the audit of any other person, except for the fact that the IRS has no discretion to start it. [00:17:18] Speaker 01: But once it starts, it proceeds as if he's any other taxpayer. [00:17:23] Speaker 01: So if you're worried that the IRS is overburdened by auditing wealthy people, you could get the tax returns and audits of any wealthy person and you could study that. [00:17:34] Speaker 06: Since the whole protective [00:17:36] Speaker 06: scheme of non-disclosure of text information is a statutory creature. [00:17:41] Speaker 06: Couldn't Congress pass a law that just said the IRS can disclose the information, or the repeal law says they can't. [00:17:49] Speaker 06: Couldn't Congress do that? [00:17:52] Speaker 01: Oh, we think that law would be unconstitutional as it applied to the President. [00:17:56] Speaker 06: No, no, no, no, no, no. [00:17:58] Speaker 06: It had nothing to do with the President. [00:17:59] Speaker ?: Let's forget about the President one minute. [00:18:01] Speaker ?: Couldn't Congress just pass a law that says the information [00:18:06] Speaker 06: the IRS says is not, or the repeal statute says it has to be kept secret. [00:18:13] Speaker 06: Couldn't Congress do that? [00:18:14] Speaker 01: Perhaps it could, Justin Tell, but I don't think that changes the answer in our case because for a few reasons. [00:18:21] Speaker 01: One is that the committee under heightened scrutiny has to say that's what it's doing and it hasn't said that. [00:18:25] Speaker 01: And I think for good reason, Judge Mehta in the Mazars case said that kind of rationale can't possibly [00:18:32] Speaker 01: justify heightened scrutiny because what you're saying is that we want to get and disclose President Trump's tax returns in order to study whether tax returns should be disclosed. [00:18:43] Speaker 01: It's circular. [00:18:44] Speaker 01: You could use that to get any information from any president about anything. [00:18:48] Speaker 01: It doesn't survive. [00:18:50] Speaker 01: And more importantly, besides the constitutional issue, [00:18:59] Speaker 01: Yeah, as I said that that that rationale has not been given by the committee can I think they understand the circularity problem with it and. [00:19:06] Speaker 01: nor would that rationale justify, for example, why are they asking for the audit files I don't think there's any anybody who's suggesting that irs audit files ought to be published to the public and yet the request asked for precise at that information. [00:19:23] Speaker 01: So if I could just continue, I'll just stick on the topic of heightened scrutiny because I do think it's the easiest place where we've stated a plausible claim that's not subject to a motion to dismiss. [00:19:33] Speaker 01: One thing we've stressed is that the reason that this request is overbroad and overly burdensome is that there's no promise from the committee that our tax returns will be kept confidential or will be reviewed in camera. [00:19:46] Speaker 01: Instead, we've alleged plausibly that the goal here is to immediately publicly expose and release President Trump's tax returns. [00:19:55] Speaker 01: Mazars opinion says the committee has to consider excessive burdens and excessive breath. [00:20:00] Speaker 01: We think that that type of disclosure would be excessive. [00:20:03] Speaker 01: And I think it's important history speaks here to your honors. [00:20:07] Speaker 01: There's only two compulsory process [00:20:10] Speaker 01: Only two times the compulsory process has been issued against a former president, and that's with former President Adams and Tyler before former President Trump. [00:20:20] Speaker 01: Both times the committee guaranteed that their information would stay confidential, and Mazars itself talks about a situation with President Reagan where the accommodation was reached, where his information will be kept confidential. [00:20:32] Speaker 01: We should get the same protections. [00:20:36] Speaker 05: So if we or the trial court ordered compliance, but no disclosure absent court order, it would pass the Mazars test. [00:20:56] Speaker 01: We have other arguments, Judge Wilkins, but I think it would, I think the failure to give confidentiality fails the Mazars test. [00:21:03] Speaker 01: But I do think the question here is whether we stated a plausible claim. [00:21:07] Speaker 01: If you believe that there's a violation of Mazars here potentially because of the lack of confidentiality, then the judgment should be motion to dismiss denied. [00:21:15] Speaker 01: And we should go on to the next stage of the case. [00:21:20] Speaker 03: All right, any further questions? [00:21:23] Speaker 03: All right, Mr. Norris, we'll give you a couple of minutes and reply, Mr. Letter. [00:21:28] Speaker 03: Good morning. [00:21:31] Speaker 02: Good morning, Judge Henderson and members of the court. [00:21:36] Speaker 02: I do want to, I have notes here on the points that my friend Mr. Norris made and I do want to address them. [00:21:44] Speaker 02: I wanted to start out with a little bit of an introduction though, but first let me introduce Stacey Fossil, who is with my office in the general counsel and Isabella Moore from the Ways and Means Committee. [00:21:59] Speaker 02: And by the way, as Mr. Norris said, he and I have been arguing about any number of things recently, and he and I just have to come up with another place that we can meet other than opposing each other in court. [00:22:12] Speaker 02: I suspect we could be good friends. [00:22:15] Speaker 02: Judge McFadden steadfastly adhered to considerable Supreme Court precedent developed over a number of decades on how to deal with [00:22:28] Speaker 02: how the courts should deal with congressional investigations. [00:22:32] Speaker 02: And so that law is well established. [00:22:35] Speaker 02: And Judge McFadden wrote an absolutely splendid opinion that goes through that and applies that law. [00:22:44] Speaker 02: The problem here is, unlike I think probably most of what President Trump's view would be, I suspect in general, President Trump favored a limited role for the judiciary, [00:22:59] Speaker 02: Here, he doesn't like the test. [00:23:02] Speaker 02: He doesn't like what the Supreme Court has done over the decades. [00:23:07] Speaker 02: And so he wants this court to reject what Judge McFadden did and this court to suddenly go into a whole different mode and actively supervise a congressional investigation. [00:23:22] Speaker 02: We know the Supreme Court has said, no, that's not appropriate. [00:23:29] Speaker 02: Just to read one, I'll quote very briefly from Judge McFadden's opinion, which I think sums things up here, is, quote, the problem for interveners is the low bar that the committee must clear. [00:23:44] Speaker 02: Even at this stage, courts should not go beyond the narrow confines of determining that a community's inquiry may fairly be deemed within its province. [00:23:56] Speaker 02: It is not a court's function to invalidate a congressional investigation that serves a legislative purpose. [00:24:04] Speaker 02: So getting to the specifics of what Mr. Norris was saying, [00:24:11] Speaker 02: First, he says, well, this is the wrong posture. [00:24:13] Speaker 02: It's a motion to dismiss. [00:24:14] Speaker 02: Well, easy answer to that. [00:24:17] Speaker 02: Both Eastland and Tenney were in motion in a dismissed posture. [00:24:22] Speaker 02: The Supreme Court went ahead and ruled for Congress in both of those. [00:24:32] Speaker 02: Judge Santel asks a question about this. [00:24:34] Speaker 02: Mr. Norris says, [00:24:36] Speaker 02: He and his colleagues have made allegations about what the purpose is here, what Chairman Neal's purpose is here. [00:24:45] Speaker 02: Well, Chairman Neal explained his purpose. [00:24:50] Speaker 02: He did it in an extremely formal document that Mr. Norris has. [00:24:55] Speaker 02: He said to the Treasury Department and the IRS, here is what I'm seeking and here's why I'm seeking it. [00:25:02] Speaker 02: That's it. [00:25:03] Speaker 02: There it is. [00:25:04] Speaker 02: There is the purpose. [00:25:06] Speaker 02: Judge Santel asked, is it possible there could be mixed or additional purposes? [00:25:13] Speaker 02: And of course, as Judge Santel, I think his question revealed, he knows, yes, there could be, but guess what? [00:25:19] Speaker 02: The Supreme Court has made clear on various occasions, and in particular, I think it was the Watkins case, the fact that there are additional purposes, allegations of additional purpose, they're relevant. [00:25:36] Speaker 02: Maybe that would be relevant in some other case, but not because of separation of powers, not how this court looks at congressional investigations. [00:25:48] Speaker 02: So Mr. Norris can allege, well, that's not really the purpose here, et cetera, but as Judge Wilkins' question revealed, what are you gonna do? [00:26:00] Speaker 02: You're gonna take a deposition of Chairman Neal [00:26:05] Speaker 02: Clearly not. [00:26:06] Speaker 02: Can't do that. [00:26:07] Speaker 02: And it wouldn't in none of these cases would the Supreme Court have stood for that. [00:26:11] Speaker 02: So the fact that this is at a dismissal stage and that Mr. Norris has made allegations is actually completely and totally irrelevant under the test that the Supreme Court has set down. [00:26:24] Speaker 02: He said, well, we must come forward with evidence. [00:26:27] Speaker 02: I have to admit that I've puzzled about that. [00:26:30] Speaker 02: What was the letter to, the formal letter to the treasure department, to IRS? [00:26:35] Speaker 02: It's not evidence. [00:26:39] Speaker 02: Mr. Norris says, well, there was that long meeting with the IRS. [00:26:43] Speaker 02: I want to know what happened there. [00:26:45] Speaker 02: We've made absolutely clear what happened there. [00:26:47] Speaker 02: And it's obvious because it's based on the law. [00:26:52] Speaker 02: The law is, [00:26:54] Speaker 02: it provides the tax return information may not be disclosed. [00:26:59] Speaker 02: It's a felony to disclose it unless it fits within one of the exceptions. [00:27:05] Speaker 02: So with the IRS, when we said we wanna find out about the program, how many times has it been applied, to whom, et cetera, and the answer was, we can't tell you it's tax return information. [00:27:20] Speaker 02: There's only been a limited number of presidents who've been subject to the program [00:27:25] Speaker 02: And so it would reveal tax return information about them. [00:27:29] Speaker 02: So we cannot tell you anything about the program. [00:27:35] Speaker 02: Now we said, well, but you can, because under 6301 F3, you can. [00:27:43] Speaker 02: And they said, well, that's what's unclear. [00:27:46] Speaker 02: We don't know if that applies here. [00:27:51] Speaker 02: And so because it's tax return information, we will give you nothing. [00:27:57] Speaker 02: So the answer from the IRS is the same as what is before this court, 6103F, how does that apply? [00:28:08] Speaker 02: And so a further sit down with IRS can only be meaningful if IRS says, oh yes, we now understand [00:28:22] Speaker 02: that the exception applies and therefore we can talk to you fully. [00:28:26] Speaker 02: Here's what happened in the audit of President Carter. [00:28:29] Speaker 02: Here's what happened in the audit of President Clinton, et cetera. [00:28:32] Speaker 02: But as of now, the IRS position is we cannot share that tax return information with you. [00:28:39] Speaker 02: So that's what happened. [00:28:40] Speaker 02: It was, we learned absolutely nothing. [00:28:45] Speaker 02: of value. [00:28:46] Speaker 02: There's complete frustration because of IRS's understanding of the law, which obviously Mr. Norris agrees with. [00:28:54] Speaker 02: So he can hardly complain that we learned nothing. [00:28:57] Speaker 02: And it would be very odd. [00:28:58] Speaker 02: It's very odd for him to say, we'll go back and ask them again, maybe ask them nicer and they'll tell you everything. [00:29:06] Speaker 06: I didn't understand him to suggest that. [00:29:08] Speaker 06: Yes. [00:29:09] Speaker 06: Sorry. [00:29:10] Speaker 02: I got carried away. [00:29:11] Speaker 06: Go ahead. [00:29:13] Speaker 02: Um, [00:29:15] Speaker 02: On the GSA test, I agree. [00:29:18] Speaker 02: I think Mr. Norris accurately answered Judge Santel's question about what the other test is under Mazar's and GSA. [00:29:26] Speaker 02: But there was something that was very much wrong, which is Mr. Norris confused the burden on the presidency with the burden on former President Trump personally. [00:29:45] Speaker 02: And that's, Judge McFadden recognized that. [00:29:48] Speaker 02: That's a very key point. [00:29:50] Speaker 02: There's no doubt that this request is for the records of a former president. [00:29:58] Speaker 03: And it was our- But when you first requested them and this constitutional controversy began, he was a sitting president. [00:30:09] Speaker 02: Yeah. [00:30:09] Speaker 02: That is exactly right, Judge Henderson. [00:30:12] Speaker 02: When then Congress, there was a turnover in Congress and Chairman Neal issued a new request, as Judge McFadden correctly said, that superseded the prior request. [00:30:26] Speaker 02: And there is no doubt that at that point, Mr. Trump was no longer the president. [00:30:33] Speaker 03: And reading- And whether the information sought has remained the same, the controversy [00:30:43] Speaker 03: between the two branches has remained the same. [00:30:48] Speaker 03: We have a situation that involves both a sitting president and a former president. [00:30:56] Speaker 03: And for all we know, if this case drags out, he could be a sitting president again. [00:31:03] Speaker 02: Judge Henderson, I strongly disagree. [00:31:06] Speaker 02: The controversy does not now involve a sitting president. [00:31:11] Speaker 02: the case before Judge McFadden and the case before you. [00:31:16] Speaker 02: absolutely clearly involves a former president. [00:31:20] Speaker 02: And when you read the Mazar's opinion, which I know very well, argue that in both this court and the Supreme Court and in the district court, the Supreme Court's opinion makes very clear that it's about the relationship between a sitting president, which is not surprising, that's what the case was about, a sitting president and a sitting Congress. [00:31:43] Speaker 03: Did you argue in Mazars that was decided while he was a sitting president by the Supreme Court? [00:31:53] Speaker 03: It came back. [00:31:54] Speaker 03: He's now a former president. [00:31:59] Speaker 03: Did you argue this dichotomy? [00:32:03] Speaker 03: Because it's very similar. [00:32:06] Speaker 03: In Mazars, they want the same information. [00:32:10] Speaker 03: when he was sitting president as they do former president, which is the same case here. [00:32:19] Speaker 02: Yes, your honor. [00:32:20] Speaker 02: And before the district court, we argued that Dushmeda ruled that, he ruled that what we'll colloquially refer to, I think he used this term too, Mazar's light. [00:32:32] Speaker 02: And so he said that applied. [00:32:35] Speaker 02: And then he found that the Congress wasn't, the House was entitled [00:32:39] Speaker 02: to actually I think most of the information being sought. [00:32:44] Speaker 02: That then was appealed to the DC circuit I argued that case several months ago before judges. [00:32:51] Speaker 02: Trinna Vassan, Judge Rogers, and Judge Jackson. [00:32:56] Speaker 02: Obviously, I assume Judge Jackson will not be ruling on that case anymore. [00:33:01] Speaker 02: So we're awaiting a decision from that panel. [00:33:06] Speaker 03: Well, what I'm asking you is, did you make the same argument about recognizing that you were dealing with both a sitting president and a former president? [00:33:17] Speaker 03: And what, if any, difference did that make? [00:33:21] Speaker 03: I'm talking specifically about the separation of powers burdened on the president. [00:33:29] Speaker 02: Exactly. [00:33:30] Speaker 02: We made the exact same argument. [00:33:31] Speaker 02: We said the Mazar's case at the time we argued it on remand did not involve a sitting president anymore. [00:33:40] Speaker 02: We made the exact same argument. [00:33:43] Speaker 02: And then we argue that, and Judge Maeda, as I say, in fact, Judge Maeda I think accepted that. [00:33:49] Speaker 02: He said nevertheless that Mazar's could apply in certain ways, but it was absolutely clear that we were dealing solely with the records of a former president. [00:34:00] Speaker 02: And as I say, we argued that before this court several months ago and are awaiting a decision. [00:34:07] Speaker 02: And again, it can't, there is no doubt [00:34:12] Speaker 02: that we are only talking about the records of a former president. [00:34:14] Speaker 02: We have only one president at a time. [00:34:18] Speaker 02: Chairman Neal's request that is before this court was made after Mr. Trump was no longer the president. [00:34:29] Speaker 02: And by the way, the executive branch agrees. [00:34:36] Speaker 02: The executive branch has taken the position [00:34:39] Speaker 02: that it must provide the documents because there is no separation of powers or serious separation of powers argument here anymore. [00:34:48] Speaker 02: There is no clash between the executive and legislative branches. [00:34:53] Speaker 02: The president, the only president takes that position. [00:34:58] Speaker 02: Now, as we know, Nixon versus GSA says that a former president may raise [00:35:04] Speaker 02: certain issues, executive privilege, for example, may raise. [00:35:08] Speaker 02: Now, as we know, Nixon versus GSA, the court overrode those law and significantly influenced clearly by the fact that the current presidents, first it had been Ford, President Ford who signed the legislation, then President Carter who's defending it, [00:35:26] Speaker 02: So the sitting president disagreed with the former president. [00:35:31] Speaker 02: And here too, as I say, we are only dealing with the records of a former president. [00:35:36] Speaker 02: Again, there can't be any factual doubt about that. [00:35:41] Speaker 02: And whether he may or may not be present again, again, has nothing to do with the controversy before this court today. [00:35:48] Speaker 03: And then you also feel, excuse me, the fact that he was [00:35:54] Speaker 03: a sitting president when this controversy began has no relevance. [00:36:01] Speaker 03: Is that what you're saying? [00:36:02] Speaker 02: Absolutely, Your Honor. [00:36:03] Speaker 02: And we know that from, as we pointed out, Mr. Norris has argued, oh, no, no, no. [00:36:10] Speaker 02: You look at that. [00:36:12] Speaker 02: You don't look at what happened after. [00:36:14] Speaker 02: Well, first of all, again, [00:36:15] Speaker 02: Judge McFadden recognized we're dealing with the current request which superseded the prior one. [00:36:21] Speaker 02: But second, this court on bonk as I recall in, I guess with Senate select committee took into account the actual facts that. [00:36:30] Speaker 03: Okay, I think you've acknowledged and that raises another question. [00:36:36] Speaker 03: Do we know on the record why you decided to go the request route rather than the subpoena route? [00:36:43] Speaker 02: Your honor, originally Chairman Neal issued a subpoena and he sent a letter under 6103F. [00:36:54] Speaker 02: It was belt and suspenders. [00:36:58] Speaker 02: What about second? [00:37:00] Speaker 02: When the Congress changed and the current Congress, [00:37:05] Speaker 02: Chairman Neal has sent the new request under 6103F. [00:37:10] Speaker 02: There is no pending subpoena right now. [00:37:13] Speaker 02: The decision was made. [00:37:15] Speaker 02: Chairman Neal consulted very closely with the attorneys and the decision was that we would move forward with 6103. [00:37:25] Speaker 02: And so this case only involves the statutory requests at this point. [00:37:29] Speaker 02: There is no pending subpoena at this point. [00:37:35] Speaker 03: Does anyone have any further questions? [00:37:40] Speaker 03: Judge Wilkins, Judge Sentel? [00:37:42] Speaker 05: No, no. [00:37:43] Speaker 03: All right. [00:37:44] Speaker 03: Thank you, Mr. Litter. [00:37:46] Speaker 03: Mr. Zindac. [00:37:50] Speaker 04: Thank you, your honor and may please the court Jerry since that appearing on behalf of the Treasury Department. [00:37:55] Speaker 04: Happy to field your honors questions as we lay out in our brief, we believe the committee's request here is valid in meet constitutional requirements and therefore section 6103 F required the Secretary of Treasury to comply with it. [00:38:11] Speaker 04: The committee's 2021 request lays out in detail both the legislative purposes underlying the request as well as explains why the former president's records are of particular interest to the committee. [00:38:24] Speaker 04: Given that this is not a case involving executive privilege or documents subject to executive privilege or and does not request, [00:38:31] Speaker 04: the records of a sitting president, the committee's request satisfies constitutional requirements, and the district court correctly affirmed the request. [00:38:42] Speaker 04: I think as has already been discussed and mentioned here the allegations of improper purpose are strikingly similar to allegations the Supreme Court has heard time and again in a long line of precedent dating back to the McBurane case and the Supreme Court has in each case concluded that provided there is an objectively valid purpose that can be discerned from the record that [00:39:07] Speaker 04: these additional allegations or allegations along the lines of those made here are insufficient to vitiate a congressional inquiry. [00:39:17] Speaker 04: And on that score, so here again the committee's stated purposes are objectively valid. [00:39:26] Speaker 04: Their interest in the presidential auto program and the IRS's conduct within that program is objectively supported by their request and therefore [00:39:37] Speaker 04: Again, because we're not dealing with a case that concerns executive privilege or the documents of a sitting president that it is sufficient to meet constitutional requirements. [00:39:48] Speaker 04: Yeah. [00:39:49] Speaker 04: Again, I'm happy to answer further questions. [00:39:51] Speaker 04: We believe the plaintiff's other constitutional claims are also without merit, those directed at Treasury. [00:39:56] Speaker 04: As the district court found, this statute is constitutional here, and certainly in the vast majority of its applications, and therefore is not facially invalid. [00:40:08] Speaker 04: And with respect to plaintiff's First Amendment claims, because the statute required the secretary to comply with the request, [00:40:17] Speaker 04: motive in doing so is irrelevant in plaintiff, even though we, of course, do not believe any improper motive can be properly attributed to the secretary here. [00:40:27] Speaker 04: In any event, the motive is irrelevant to end the First Amendment claim fails. [00:40:34] Speaker 04: Having touched briefly, Judge Sentel asked about the appropriate standard that applies here. [00:40:39] Speaker 04: I think [00:40:40] Speaker 04: In general, the framework that courts apply when approaching these types of congressional requests for executive executive materials is a balancing test that typically weighs the burden on the executive of disclosing the particular information that issued to Congress against [00:40:57] Speaker 04: congressional need for that information in where we have cases where the documents are particularly sensitive, such as executive privilege cases that Congress must meet a particularly high showing. [00:41:07] Speaker 04: The Mazar's test is in many ways an application. [00:41:10] Speaker 04: It says when documents of a sitting president are requested, a higher showing is likewise required. [00:41:16] Speaker 04: Here though, we are again talking about documents of the former president and so therefore the separation of powers concerns are far attenuated and presumably the showing Congress would need to make would be lesser and here we feel that the statements that the committee has... The separation of powers completely out the window when the president is no longer sitting or is it simply applied with less rigidity because doesn't it seem that [00:41:47] Speaker 06: A sitting president can be invaded in his privilege use by knowing that once he goes out the door, the protection isn't there anymore. [00:42:01] Speaker 06: Isn't there some possibility of interference with separation of powers, even with respect to a non-sitting president because of its potential effect on the actions of the sitting president? [00:42:14] Speaker 04: Yes, Your Honor, we agree with that. [00:42:16] Speaker 04: And certainly, if we were talking about privileged materials, there'd be even greater concerns with respect to revealing that information after presidency, because it could affect a sitting president. [00:42:29] Speaker 04: But in this case, they're far attenuated. [00:42:33] Speaker 04: We're talking about the records of a private individual [00:42:36] Speaker 04: not material subject to privilege, and they don't implicate the same separation of powers concerned, that would exist in other contexts. [00:42:52] Speaker 04: Your honor, I'm happy to answer any other further questions you may have. [00:42:56] Speaker 06: No questions. [00:42:59] Speaker 03: All right, thank you. [00:42:59] Speaker 04: Thank you, your honor. [00:43:01] Speaker 03: Forgive me for that interruption. [00:43:02] Speaker 03: I thought I had turned that phone off. [00:43:05] Speaker 03: Mr. Norris, [00:43:08] Speaker 01: Thank you. [00:43:09] Speaker 01: A few points, your honor. [00:43:11] Speaker 03: Wait a minute. [00:43:11] Speaker 03: I have a question. [00:43:14] Speaker 03: We have been all wound up in who the president is at the time, who's the chairman of this committee at the time, what the treasury department, or who's in the executive branch, including the treasury department and the IRS. [00:43:33] Speaker 03: And we've got to look at this case [00:43:39] Speaker 03: as executive branch versus legislative branch as institutions. [00:43:44] Speaker 03: And I think the language in Mazars, first of all, my question will be this, assuming that Judge McFadden misapplied precedent, that he should have applied Mazars. [00:44:04] Speaker 03: When you look at what the Supreme Court said in Mazars, [00:44:08] Speaker 03: about the fourth burden, that is the separation of powers burden. [00:44:16] Speaker 03: It said that burdens imposed by a congressional subpoena, and of course we have a request here, interestingly, should be carefully scrutinized for they stem from a rival political branch that has two things going. [00:44:38] Speaker 03: an ongoing relationship with the president. [00:44:41] Speaker 03: And that's why that's no longer the case, but that's why I'm interested in the fact that he was a sitting president when this whole thing began. [00:44:51] Speaker 03: And then the second element is incentives to use subpoenas for institutional advantage. [00:45:01] Speaker 03: Now, again, we don't have a subpoena, we have the request, but that second power [00:45:08] Speaker 03: that the rival political branch has survives the fact that the president is now a former president. [00:45:25] Speaker 03: And it talks in terms of institutional advantage. [00:45:28] Speaker 03: That's what makes me think, you know, we've got to look at this not [00:45:35] Speaker 03: musical chairs, who's changing, who's withdrawing, who's doing, who's leaving office, and so forth. [00:45:43] Speaker 03: So assuming we think Maysaurus is the right precedent, what difference, if any, will that make if it were to be romantic? [00:45:59] Speaker 01: Thank you, Judge Henderson, and we do think you should at least remand because Judge McFadden didn't say we would lose under Mazars and a lot of his opinion suggests we might very well win under that heightened standard. [00:46:09] Speaker 01: And I think you've hit it right on the head. [00:46:12] Speaker 01: Even the reason it's important that this request was made while President Trump is president is because everyone agrees that that original request would have had to have satisfied a rigorous version of the Mazars test, which is a heightened scrutiny test precisely because courts should be skeptical when Congress is going after its rival. [00:46:33] Speaker 01: Courts are suspicious. [00:46:34] Speaker 01: They don't give Congress the normal deferential presumptions. [00:46:37] Speaker 01: They in fact come in and act as a neutral referee. [00:46:40] Speaker 01: So, if this was suspicious when it was issued, there's nothing about January of 2021 that eliminated the suspicious nature of the request the request remained exactly the same. [00:46:51] Speaker 01: And as just until pointed out, there is a chilling effect, even when you target a former president. [00:46:56] Speaker 01: Never in history has Congress ever issued this type of demand to a former president. [00:47:01] Speaker 01: So that lack of history ought to mean something. [00:47:04] Speaker 01: It suggests that Congress has long thought this is impermissible. [00:47:07] Speaker 06: One way or another, they wanted all kinds of things from the Nixon administration. [00:47:12] Speaker 06: They may not have had precisely this posture, but that's where the presidential papers act came from, essentially, wasn't it? [00:47:21] Speaker 01: Fair enough, there was a statute there at issue just until I'll say this is even more unique and that they are targeting the personal papers of President Trump which mays ours, the Supreme Court said is highly suspicious because they have a less evident connection to an official legislative task. [00:47:36] Speaker 01: And Judge Henderson you're right that mays ours tells you you have to look at the precedent that's going to be set by approving this request. [00:47:43] Speaker 01: And the precedent that's going to be set is that once a president leaves office, it's open season. [00:47:48] Speaker 01: You can get every detail of his financial life, his businesses, his private taxpayer information, which is protected by federal law. [00:47:57] Speaker 01: And don't worry, even if he has ongoing audits, you can interfere with them and prejudice his rights solely because he served as president. [00:48:04] Speaker 01: And my friends might say, there's no reason to worry about that being a big deal, but it is a big deal. [00:48:09] Speaker 01: It's happening here. [00:48:09] Speaker 01: We still have ongoing subpoenas for his accounting records. [00:48:12] Speaker 01: his banking records. [00:48:13] Speaker 01: President Trump is subject to an onslaught from this House, and they've continued to pursue it after he left office. [00:48:19] Speaker 01: It is a highly burdensome request that fails heightened scrutiny. [00:48:23] Speaker 03: All right, if there are no questions, then thank you, gentlemen. [00:48:29] Speaker 03: Thank you. [00:48:30] Speaker 03: Clerk, if you give us an adjournment.