Obama Weighs In on Flynn Matter

As pointed out others.

There could be multiple versions of that in multiple different districts across the country so what's what's different about that. How do we avoid the conclusion there that the present wasn't a subject to some special immunity. But here is I think that the nature of the case that were dealing with here is not in a vacuum itself.

There are other cases that the President is dealing with at the same time.

So what made me the situation for President Clinton with a lawsuit. We have multiple litigation going on, including the New York Atty. Gen. so I think the supremacy clause issue in our situation here is pronounced as this court alluded to in Clinton against Jones for that very reason. This idea that local prejudice would impact the President so the idea that we would wait until there's more of these were already here on four subpoenas or three subpoenas, three cases involving multiple subpoenas, much of which covers the same documentation so I think it impact just as gorgeous proves the point where here because the house is asked for documents that now the district attorney is asking for. So we are seeing that in real time. The burdensome matter of what's happening is more burdensome than What Took Pl. in Clinton versus jobsite. I guess I'm not sure I a big distinction between the defendant in a civil case and I principal in a criminal case here by the state district at the yes there there there that they sought the deposition of the President. While he was serving here.

They are seeking records from third parties there. His records from third parties justice courses third-party simply the agent custodian of the President's tax returns in the present statement of financial conditions. So these are the Presidents documents that the rest and what's to stop them from seeking a deposition of the President or for that matter, asking the President to appear before the grand jury because if the official versus unofficial was the deciding factor in our view is that the initiation of process here interferes with the President's official duty, but if there was to be this unofficial official distinction put in place when what stops the local district attorney from having the present testify, having a breasted President tried all and good afternoon Mr. psycho is following a court to explain that he can be rationale for having one rule for criminal and another rule for civil consumers, one criminal and purgation that and just explain the rationale for different rule that it's a differently because in this case because it's within the context of a state proceeding you have.

Article 2 concerns in the supremacy clause issues as this court alluded to in a Clinton against Jones that create the issues of concern about local prejudice but the criminal nature of it creates a burden very distinct from a civil case.

To be clear some of that route. The idea that you are the subject or target of a criminal case being brought against you is very different than a civil suit were at the end of the day it results in monetary damages not not a loss of liberty. So there's a big distinction between a civil case and a criminal case. In that regard, and I think that impacts the standard upon which this court should be looking at the President's temporary Presidential.

Many were talking about stopping a process targeting the President the subpoena targeting the present. That's were talking about here is that burden that is our concern the other side of the articulating was a bit more consistent with prior concurrence in Clinton versus John Stanwyck to majority opinion is concurrency's said the judges hearing a private civil damages action against a sitting President may not issue orders that could sue significantly distract the President from his official duties and pointed out that language is not in the majority opinion what you think about how we should assess that article versus criminal processes are two very distinct processes and in a civil context.

In a civil proceeding. There is eight made the Federal Rules of Civil Procedure and the federal court that govern how that process goes forward in federal judges can take indicate various considerations, especially during the present. This is a state proceeding initiated by the local district attorney against the sitting President of the United States so that our concern here is this the nature of the proceeding itself is why we view categorically that a subpoena targeting the President and his records here I and will deal with limitations issues statue limitation issues. Reports are decided under New York State law and under New York State law, there would be procedures that could be utilized if in fact that the DA were to elected to start a process like that, or if there would eventually be action, but I need to say something like Mr. just on the court at a minimum little product you have to show you really need the President's personal record genogram to read the court suggested in Clinton against John meeting can pose a greater threat to the President 2300 prosecutors across the country necessarily more effort on local interest national one special-needs standard ensures that federal court balance the prosecutors local need for information against national interest, including the President need to do his job back. Ordinary grand jury rules are not designed to protect. Article 220 and the court held federal product. Peter had additionally demonstrated the need for the information.

Stop a local prosecutor should at least be required to meet the same standard as the court is patently dead time report be required to proceed against the President is against an ordinary fitted in here.

The attorney hasn't tried to meet the special needs standard.

We just heard Mr. secular will argue in favor of an absolute standard no circumstances know how your position is that as you say, at a minimum special-needs test must be met with Mr. secular was representing Mr. Trump you're representing United States you're arguing for a more flexible standard. So what was wrong with Mr. Trump's position, Your Honor. I actually think that Mr. secular makes a very strong argument on the immunity issue. We just don't think it one that the court need to address at least until the prosecutor argues an attempt to meet the needs standard.

The prosecutor has been argued and isn't arguing before the court that he needed the special-needs vendor. There's no reason for the court to address the broader community question and an end and the court ordinary property to try to avoid those broader and more difficult questions.

One possible and here we think that the special needs standard would fully resolve the case at this stage of the proceeding okay with adequate allegations to say that the standards implicated are you saying that goes before court and the court will examine whether or not the criteria you talk about which I gather is the test under Nixon are met and under Mr. secular standard would not immediately go before the court is looking for a ruling from saying that is absolutely immune so the court would have no business addressing such a case very significant difference we honor.

I think that in both the argument would be available to an article you you really able to make that argument to an article to federal court under our argument, the court found that the prosecutor had met the special needs standard, it wouldn't need to address the broader community question if it did find that the special permit. The district attorney met the special needs standard, it would have to then address the broader community question and all we're saying is that what he'll be special-needs issue is addressed that the threshold is no need to address the broader community question. Thomas, Gen. Francisco, you mentioned the level of threat to the President or burden on the President. We determined that when it's too much, Your Honor dear, I think there are couple of things that you can take into account for the fact that were in the court I think is quite significant.

Local prosecutors are not barely going to put more emphasis on local interest. The national one could simply reflect the manner in which they arrived often through elected by local relatively homogenous political community dinner New York State.

I would also add that the trial court judges are elected in a similar way. So there.

You've already got rid of local prejudice what the special needs standard is that it ensures that there is a federal court that the available balance the local interest against the national one, including the President need to do his job and then secondly it also have to do would be ordinary grand jury rule would apply to a local prosecutor exercising his authority does rule were not designed to and are not efficient to protect article to enter since under ordinary grand jury rule attorney never have to make a particularized showing of need, instead burden is on the witness show that the subpoena can have no capable relevant to any plausible subject of an investigation. Now that is a perfectly appropriate standard in the ordinary case, but the reason why applied the special needs standard above and beyond the ordinary rules of criminal procedure was because the court recognized that the President's old person in whom all article powers are vetted until he is entitled to a measure of protection above and beyond the ordinary rules and the special needs standard is one of those measures are protected. Put point back to Justice Breyer is a very persuasive concurrent in Clinton against John, I think, just as Briar correctly predicted that the court would need to develop special protective procedures precisely for the President in the context of litigation like that states are subordinate and seven – 75 that you don't have any credit at all is the amendment and pallets of the state. Ask one question that I have an eye@the impact of the President is concerned, I think that no case monochromatic mixing tapes devastating impact on the President dying from office and yet that was okay. So I really don't.

So, Your Honor. In terms of the amendment. All we're saying is that article that all executive power. Anything the President of United date IQ old person whom all executive powers vested in Phil that barely implies that there are limited on what others can do to unduly burden him in his ability to do his job. So all the special needs standard doctors ensure that a prosecutor really need the President information before you can import that the peanut can't even show that he really need the information he's not barely imposing an undue burden on the President in creating a theory of risk of harassment and if you multiply that by 2300 prosecutors across the country. I think that the risk to the President need is quite obvious in terms of the Nixon case, we are actually arguing for the same standard court applied in the next think gave the special needs standard were just staying at a local prosecutor and state courts are to be better minimum be required to meet the same standard that the federal prosecutor Nixon had to meet and show that he really does need the information that seeking since again if he doesn't very tell anybody how text specific typing while investigation is underway in order to determine if have been specific. I think efficient killing. Have them I think is before they investigate. Ron seems to be vastly on Your Honor we know. I would simply urge that you will find the same standard that Judge Wald applied in the injury which was a grand jury subpoena to the White House where she concluded properly and argue that Nick didn't special needs standard ought to apply to grand jury not you don't have to make a charging decision. But you do have to show a demonstrated specific particularized need for the information pursuant to which you are issuing that the grand jury subpoena prior.

Thank you Jeremiah. I think it Nixon tape case has one thing for you and me against you. This is nothing against you.

I think it was a case for executive privilege is asserted for you and I think might be more relevant is in that case, the court said there has been first weighing of the burdensome nature, etc. a lot of other things in that in the lower courts have decided that it is appropriate to go forward. Now what I don't see is why you need a special standard more than last year. Ordinary standard you would need a decision by us that the truth viewable in federal court. I understand that but I don't see why you have to go beyond that with the things you're talking about would be taken into account. Your Honor, you are after we corrected a minimum we would need federal court review, and in that regard. I would note that the attorney here agree that there are article 2 limits on what he can do and that the article to limit are in federal court. Respectfully, I would suggest that Nick been dance for more than employee some kind of weighing of interest in applying the special needs standard and it said that the product you're getting back To show a particularized need the information. All that we are off to the contact assertion of executive privilege, Your Honor, that in the context of an assertion by the President of executive privilege. Yes, Your Honor. One, but litigation about private conduct is also burdensome, and as the court recognized against Jones, the President might well need more protection for any get in federal court precisely because of the risk of local prejudice. That's why the court reserve judgment on that question but I think when you put those two things together.

It does not make it entirely appropriate holding local prosecutor and state court to the same standard as the federal prosecutor without case and, indeed, even if you were to take the district Attorney known Kate I think you would need the special needs standard.

After all, we don't typically get discovery into a grand jury proceeding.

So the only way to whether the prosecutor is issuing an unduly burdensome subpoena are issuing a subpoena in bad faith is to require some kind of showing of special need. After all, why would a fellow general could you explain in more specific terms how you think this showing of special need, would be carried out in District Court. I assume that the prosecutor would have to make some kind, what would have to reveal was being investigated and this particular information was needed for or essential for the investigation of that be done with that be reviewed by the judge asked apartheid would be available to whoever the sitting President is to object to that to review and object to Your Honor difficult and that question in a vacuum, because I think it would very much depend on the particular case. But let me make my bed. Staff added. I think that in order to have meaningful judicial review. He would be that the prosecutor would need to make public as much as he could responsibly be made public so that the President would have an opportunity in the President's lawyers would have an opportunity to make their case on the particular there is a certain amount of evidence that really cannot responsibly be made public, then I think it would be appropriate, bitter, ex parte proceeding or filing under seal on all events.

We think that that's the type of effect that need to be made when you're talking about the peanut is unprecedented. Like this one that are from state and local prosecutor targeting United date. The other place I would point you to it. Again, judge laws, while very good opinion for the DC circuit in the In re field paid where she does walk through and some amount of detail and unpacks how the special needs standard applies to grand jury subpoena how essential must information specialties have to be absolutely indispensable. Not available from any other source by any conceivable means are simply very useful, Your Honor, probably somewhere in between those two things. I think it's gotta be critical to the charting division so it can't just be marginally useful or no merely duplicative or dark or interesting to a tangential side issue. It does have to be critical to the charting division. If the information is readily available elsewhere. I don't see how prosecutor could meet the special needs standard and the information he had. He currently does have is sufficient for him to make a responsible charting division. I'll don't think he how we could meet the standard, so I guess I would general, there is always danger in taking that doctrine adopted for one set of needs and that has to do with needs that are balancing what is clearly recognized in lives executive privilege versus the needs for the proceeding at issue and transplanting into a situation that's totally different.

Where were not talking about a claim of executive privilege and were not talking executive immunity were talking about private activities that predated the President's tenure. So why are we using all that transplanted language and why don't we get to a standard that care of what you're worried about, which is harassment and interference and simply ask whether the investigation is based on credible suspicion of criminal activity and whether the subpoena is reasonably calculated to advance that investigation looks to whether there is a good faith basis for the state prosecutor's action and whether the subpoena is reasonable in scope and burdens.

I don't understand what sort of standard in adequate to leave her proceeding that involves secrecy like a grand jury subpoena Your Honor verdict for the reason that I think John Breyer did vertically bleed leaning against Jones even litigation about private conduct to be quite burdensome and that is particularly so when you're talking about private conduct that being litigated in the court pursuant to the procedures so I think that's why he cried correctly predicted that this court would need to develop special protective procedures precisely in this context, and secondly I think that the special protective procedure that we are proposing here is necessary, even under Your Honor general approach. After all, why would a prosecutor take the unprecedented issuing payment to be President of the United States personal records from AL a local prosecutor if he can't even show that he really need the information anything if you can't make that showing I think there is a pretty good reason to be a little bit suspicious. All very times now in response to test this prior and your you explain why we should use the standard from executive privilege cases by saying well litigation about private conduct is also burdensome, but that privilege cases is that it's burdensome amended critical factor in the waning interest that a President has been communicating with advisors on official matters, often about national security, often about military matters and and and the need for confidentiality and that and that's why the Nixon standard was developed not because of generalized ideas about burdensomeness which can be dealt with in other ways.

So again, why should that standard be used here on your and I think that their parallel interest on a regular executive verbal you are right is meant to protect the confidentiality of communication. Article 2 more generally is meant to protect the President from being unduly burdened in his ability to carry out responsibility and so and I think that's particularly necessary when you're talking about state court proceeding by the many many 2300 local proctors across the country who again are more responsive to local clinical can use a local interest. The national one like the standard in order to take account of Burdensomeness is something that can be addressed in any subpoena, and I'm sure the courts when it after the President and the special abilities of the President will address those interests with respect with sensitivity, especially if we tell them so.

So why would it tighten standard that is mass to protect confidential communication about official government business.

Your Honor, burdened, because under the ordinary grand jury rule. The only question as to burden is whether the peanut has any conceivable relevant 20 plausible subject of investigation and therefore is unduly burdensome and secondly I think that judgment has to be made by federal courts, not the court.

The court like local prosecutor going to be more bonded to local interest. After all New York State trial court judges like the district attorneys are elected in partisan elections so all were saying is that the type of investment that need to be made in federal court in the most appropriate and easy to apply standard is the standard that you've already been applying for 50 years under the Nixon gait and justice for such just explore a little further. How the state of your proposing would play out in practice. I I suppose you have a local prosecutor saying I'm investigating a Subtraction and the best and maybe only evidence of all that potential infraction on the tax records in the possession of the the potential defendant, why wouldn't that meet special heightened test that you proposed in every case, and that if that is that if it does that then what would appreciate, Your Honor, I think it would depend on the potential defendant did potential defendant is the President of United date. Here, the district attorney doesn't contest the fact that he cannot indict the President of the United States until after he leaves office, so he wouldn't be able to show that you need the information now in order to indict the President of United date potential defendant is somebody else then it might start looking closer to the cave itself for the special counsel was investigating 1/3 party, and I think that would impact your relevant incineration under the special needs standard to follow that last portion of it. Let let sit infraction is by a corporation or some entity and we need that prosecutor say we need these materials in order to determine whether there is an infraction I why wouldn't that qualify under your standard. I think that would certainly be a relevant thing to take into account under our standard energy athlete met the special needs that with respect to the information and found that it was really necessary in order to bring charges against that third party, he may well meet the special needs standard and then you have to address the broader community question how much showing especially is required in your standard prosecutor says I have some some reasonable suspicion that there is a tax efficiency by some entity that enough. Your Honor, I think.

I think it's more than that, I think you got to show that the information he thinking is critical to him responsibly making a charging decision that he can't get that information from somewhere else in the information that he doesn't have the patient is essentially the same standard the court applied court applied a Nixon the DC circuit applied in the written revealed a hard and fast bright line rule, but it is an administrable ruled that courts have been applying for some 50 years R thank you, Mr. Chief Justice, Gen. Francisco follow up on Justice Thomas and Justice Kagan and really zero in on what the article 2. Interest is before we talk about what standard and I think in Justice Breyer's concurrence in Clinton against Jones. He referred to the interest in time and energy distraction, which she drew from Nixon versus Fitzgerald the different Nixon case as an independent article to interest that is distinct from distortion of official decision-making could be more the executive privilege kind of interest is that the article to interest your zeroing in on or is it something else Your Honor respect with both of them and as I read John Breyer's opinion. He likewise understood it to be both of them. The whole idea is that article that all executive power in a single person and that necessarily means that others can't unnecessarily topple or debilitate that person in his ability to responsibly carry out duties so the whole point of the special needs standard is to ensure that others, including prosecutor can't unnecessarily impede the President in carrying out his responsibilities toward a minimum show that they really need the information that they're seeking €2300 that are unnecessarily hitting the President with the penis and none of them can actually show they really need that information, you're necessarily going to be undermining the President's ability to effectively carry out article duties that the Constitution entrusted him and him alone on behalf of the entire country counsel Chief Justice in May it please the court to principal at issue in this case wanted a central role of the President and the functioning of a national government and the need to avoid interfering with the President's ability to carry out those important duties.

The other principle is that under our Constitution when a President passes a private individual, he or she has responsibilities like every other citizen, including compliance with legal process, in particular, this court has long held that American Presidents are not above having to provide evidence in response to a law enforcement inquiry were mindful that as the state after our office cannot investigate a present for any official acts and that we cannot prosecutor President while in office, but here were talking about subpoena sent to 1/3 party concerning private conduct by a variety of individuals and businesses. Yes, one of them is a President, but no is been targeted or charged with anything. There's no claim of any official acts or any executive privilege as the court below found subpoena imposes no article to burden whatsoever.

I was not born of a political analyst for intent to harass, instead it was prompted by public reports that certain business transactions in our jurisdiction were possibly illegal allegations. Our office would've been remiss not to follow-up in response to the President asked the court to overturn 200 years of precedent by declaring the blanket immunity while in office from any legal inquiry, even for his prior private acts, even though that could result in a permanent immunity for him and the other parties is a limitation expire and even though it can prevent the discovery of evidence that could exonerate the individuals involved. Finally, is not a claim also asked the court to presume that state actors have a quote reckless mania that will cause them to quote relentlessly harass Presidents in the state and federal courts will allow prosecutors to do so. Of course, is no historical support for this claim, which flies in the face of federalism is about the floodgates of heaven open for generations and there's never been a flood. The only thing new here.

Subpoena comes from a state constitutional burden that should lead the court to abandon its long-standing respect for state criminal proceedings counsel the cases this morning. In this case, and they are in many respects very similar in on in the case of the subpoena itself. There identical, but I think another respects the really quite different. The separation of powers case this morning in entities in an ongoing relationship the house and the President and issues of this sort, although always very important.

Come up with some regularity.

There is often disputes between the White House and Congress over documents and almost always there, there worked out because each of those branches have authorities and powers that affect each other unit of the Senate asked for documents from the White House and the White House doesn't give them the descendents as well were going to know take our time confirming your nominees and and back and forth. But with respect to local prosecutors you don't have that ongoing relationship so the possibility of working something out is is far less evident. And if you're doing that the stakes are just a little more difficult because there isn't that ongoing relationship so shouldn't there be a higher standard.

Before we permit the district attorney from around the country. They're also more than the two houses of Congress 2300 of them shouldn't be higher standard than in the case of the separation of powers dispute are answered yes and putting aside his relationship or not, to the separation of powers analysis. I like to address the DOJ's proposed-showing standard because we we see that we are three reasons I think why the DOJ's new-showing proposal doesn't work in a number of questions in the last argument I think touched on some of these concepts about Mike's first pump. One problem is that the approach that you're suggesting really reverses the course primer coat approach to fact-finding in these types of cases in a way that I think would harm the grand jury process which I can explain. So again, we agreed there should be-showing requirement, but my point is only after a President has already established an actual article to burden otherwise.

There's nothing for court to weigh in the balancing of article 2.

Interest against the need for legal process which meant balancing and that sequencing frankly was both central and both Nixon and Clinton cases here you are late for me precisely what standard you think should apply in your case, and in what sense is more rigorous than that would apply in the dispute between the White House and Congress. Yes, I think we believe that a prosecutor if there is been an affirmative showing by by a President of an article to burden and course to course has below held that there has not been such a showing here, but in a different case, there was such a showing made. We believe the prosecutor should be required to show one an objective basis for the investigation and to a reasonable probability the request would yield relevant information. We think language like that would be more consistent with past cases of this court with the realities of the grand jury investigation and frankly that the court will also already found that we met that standard here is the problem is of the alternative require estate prosecutor to get permission first from a federal judge for any request relating to the President business activities would undermine this Court's prior rulings like the one in our enterprises.

Grand jury shouldn't be burdened by critical procedural challenges and delays is a confidential process and not an adversarial proceeding in the DOJ's new standard just ignores that Thomas Chief Justice Don you are about to say how DOJ's approach would harm the grand jury process, would you finish that yes because just addressing that Justice Thomas, that is to require us in any given case to run new across the street to federal court and say by the way, we have investigation underway. It happens to touch on the Presidents of prior business transactions in which he and others were involved in and we'd like to get permission to send a subpoena for records that are in the possession of a President or maybe the President's agents, like his accounting firm here again it completely opens the way that a grand jury process is supposed to work by my second big problem I think with the DOJ's analysis is that the language of the chosen just doesn't work contrary wise to what I just sent out because it only applies in the context of the trial subpoena. It calls for quote stringent showing that the request is quote directly relevant to central issues at trial and charting decisions. Again, that language doesn't apply in the context of the grand jury when no charting decisions have been made, so that's why the formulation that we suggested I think would be more consistent with what's needed in a grand jury context. But again, we think that is really unnecessary here to apply our case because hey there's already been a finding of no article to burden and be we have already met the standard invited by the District Court's finding that our investigation is well-founded and brought in good faith. So what limits grand jury process in your limits. Well, the limits are the same. Basically, as they are in federal court in most other states, Your Honor.

Yes, a test of the recipient of a subpoena who has a basis to argue either a privilege for burden of some sort have the right as the President did here to go into court and make those actual arguments that is that that's that either should be quashed or or constrained in some fashion. There is a grand jury judge who supervises all grand jury Xander activities was always available here, but I think the more important point. Perhaps drivers that I was given the decision of the Court of Appeals below.

In this case and to address the concern that footnoted in the in Clinton. At this point is clear that the President, in particular who has a concern about this kind of impact on article 2 duties now always have the ability to go to federal court and not interstate court, which was the main concern in the footnoting Clinton when he thought it was the President said it was impossible for him to do his job as opposed to just being burdened with that we have a role to limit somehow and VI grand jury process absolutely run anything past the point of the case specific analysis is that it gives the court and here federal court to hear a concern like that expressed and the concern is you know it. Somehow this shifts my office down or is it is a real burden is not just a speculative mental distraction claim, then yes, the courts are empowered to impose a wide variety of limitations including, if necessary, to shut investigation down to worship, subpoena or litigation down. That's the beauty of this Court's prior decisions in Nixon Clinton and others which have decided consistently to apply the case specific analysis and rejected the notion that this is best treated with a categorical prophylactic rule. I just think that that's not appropriate here. Let's also case specific banking that had been made is that when you're dealing with federal prosecution controlled by the Atty. Gen. that can you have 2350 attorneys each blitz grand jury subpoena power to control it. Existing federal courts with the Atty. Gen. at the helm and Nolan and controlling all of these eight district attorneys understand, Your Honor, and I think really what I get essentially to his feet. The consistent argument here about the parade of corals if you will. If I could address that I think there are several answers that concern first of all, there's really no empirical basis in history.

For this is apocalyptic prediction.

The same claim was made and rejected by this court in Nixon and then in Clinton. That of course was decades ago and there is not in a flood of subpoenas or litigations or prosecutions of Presidents life by state or federal prosecutors. Second, as a practical matter of this notion that there are 2300 prosecutors out there writing with her subpoena past open. There's just no basis to think that an army of local prosecutors like that would even have jurisdiction over President, especially for private conduct in the first place near near city. Of course, has a particular connection to the Trump organization as financial transactions because of headquartered here is not likely that that more than one or many states, much less two 2300 counties where have a connection to a Presidents private conduct third type I think is is is Justice Ginsburg mentioned the last argument is view that the people that the bitter reckless mania by local prosecutors contradicts this Court long-standing presumption in favor of regularity and deference to state proceedings and so finish off the limitation. I think that you're asking about really comes in the form of the case specific showing that past cases from this court have established, because if there is a concern about the behavior of local prosecutor. Any President when necessary. But it's been few and far between. Over the decades can run now not just into the state court which Clinton thought could be problematic but you wanted to federal court and raise exactly the kind of claim that the President has raised. That's the limitation thank you prior to what I agree with you that the two basic principles you set up the outcome of their every man's evidence versus the constitutional statement of the President is the executive article to the conflict. Justice in the first place of the first case the power of Congress. Article 1 article 2. Conflict arrived. I think that I would say they don't conflict but yes, the intention their own right now. A possible solution is to say no absolute rule but just send it to the ordinary system for weighing the needs versus the burdens and different gods have to say what they are and then have that reviewable in federal court and because of the nature of it and we could list an opinion the kinds of things that might not be might be relevant depending on the case and eventually with the President, we might view it. All that would take time but time itself would discourage prosecutors from doing this which might be good in time itself would encourage house Congress President to work things out in a nontraditional way. All right I don't put that as being related to. I want to know your reaction you're describing is what this Court held in Clinton is exactly what happened. Now, in this case, which is yes, in this case the President decided to pursue his claim of immunity in federal court versus state court which is fine and now available. I think in the future to all Presidents, but I think the fact that that is what should happen in the ordinary course of which can happen in the ordinary course is again the solution and the limiting principle here because it does make it clear that there is a remedy and discourages.

I would've thought of bad faith impulses by any state or local prosecutor might harbor such an impulse, and provides an outlet to make sure that you can't get out of control, but again that that's the beauty of the case specific analysis.

I don't think these things lend themselves to categorical prophylactic rules and estimate for from this court from day one. Thank you so you understand your proposed standard, there would be available review in federal court and prosecutor would have to show an objective basis for the subpoena and the relevance of the subpoena to the investigations that correct basically underlines like that. I went to was a reasonable probability that will yield relevant information but yes test the concept.

Okay reasonable probability what it would be your objection to a somewhat more demanding standards so the prosecutor would have to show that the information can be obtained from another source, or would be very it would be very difficult to obtain it from another source and the information that is unless the information is obtained right now as opposed to the end of the President's term, there would be some serious prejudice to the investigation, Your Honor, I think you don't think that any of those concepts are foreign to the standard that I articulated. I think they are relevant and faxed to the objective basis and in relevance of points you know here, for example, and I think that the court, the court below, the district court. In particular, heard our explanations and concluding the fact that another reason why we went to May's ours is not to do an end run around the negotiations with the President's lawyers because masers as the outside accounting firm is is a chart we could tell, the only repository of what might be the most important document investigation like this which are not just the tax returns, but the surrounding accounting materials and workpapers etc. shed light on the good faith or not of the transactions of my short term, I'm sorry is that I think those those concepts are our art would be fine and not unduly burdensome in the context of the standard that I set forth the last thing you think that the education of this and all cases of a similar nature would dependent anyway on state law and practice regarding grand jury secrecy in federal court rules grand jury secrecy are of course very strict states have different rules.

Particular state imposes no restriction on revelation by a member of the grand jury, or perhaps even by the prosecutor of the information that is supplied in compliance with not aware of any other states having that kind of lax or nonexistent or injury secrecy rule. I can assure the court that in New York State are grand jury secrecy laws are at least restricted under the federal system, but putting aside the fact the fact pattern presents to adjudge the prospect that the information fact will become public and present work were to persuade a judge that the publication of the documents at issue with themselves impose some sort of article 2, burden or other other interference with his executive duties in that even state, and I suppose that would be part of the case specific analysis of the court could understand and take into account in deciding whether that there should be some limitation or or even a clashing of the subpoena itself.

I think that part of the case specific analysis and we both know that prosecutors have different that there are prosecutors who leave all sorts of information including grand jury information both works of media sources including specifically the New York Times if there were showing that that was a risk without bearing on this part for me that I'm not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy yesterday in a little different kinds of offices there are at times leaks.

The status of cases and that kind of thing but I I am not aware of and are grand jury secrecy rules really prevent prosecutors. I believe from actually turning over confidential grand jury secrecy materials to you. You're not aware of this ever happening your office never requested by media in the New York City area to disclose confidential investigative information and noble all the time, Your Honor. And the answer is consistently no extras, at least as far as I can represent the distinction between his people commenting to reporters all the time. Off the record, I can't think versus turning over actual materials like the voluminous tax returns or others sensitive documents that have been gathered and which are covered by grand jury secrecy – that's what I just don't see happening here and I think history supports that you are article to burden the site include the burden of harassment burden of using subpoenas for political purposes. Yet here I would certainly include that Darren again. There's been an express finding below here that there is a duty investigation was well-founded that there was no harassment or bad faith in the bargaining of these of the subpoena justice on so did I understand your answer to Justice Alito to be that you are in agreement with the SG that we should impose a heightened standard special needs standard. No, Your Honor, I was I was wrong. Now calling it the help-showing standard word in the DOJ's lexicon. Now the heightened needs standard, but I think grammar ticketing is a very different the standard in terms of the actual language to be looked at and imposed again. I think you can cancel because I want to be very precise if your standard includes what the heightened needs standard has been why not call it what it is heightened need. There has to be a reason you think we should call it that, and I don't know that I understand what difference I'm sorry this is so, to me, or the concern I have with the DOJ language is again calling for a stringent showing that the subpoena request is directly relevant to central issues at trial and other concepts like that. What I'm trying to propose is something I think, which is not so strict, and which is not limited to charging and trial related concepts, but which would be workable in the context of the grand jury subpoena and again. Whatever the standard is that were articulating. I want to stress that I believe that we are office has met that standard here even under the DOJ's proposal because of the findings by the District Court of mainline standard would interfere with the grand jury process. Well, I think, Your Honor, among other things, the DOJ's proposed application of the standard. If you read its brief would confer the same absolute immunity.

The President is seeking here what they say is, since you can't indict while in office. You don't need the documents while he's in office, and friendly. That's an outcome would apply in every case, no subpoena could pass that test basically say you have to wait until he's out of office before gathering information of the because you need. In the meantime.

And so their definition of heightened need, said you don't need it well is not much less. Not workable here because you will see Your Honor we were to wait until the President was out of office in a situation like this. First, it would risk the loss of evidence, the feeding of memories and liability witnesses, which is exactly where the DOJ Moss memo.

Of course, specifically contemplated that a President could be subject to grand jury weld office to avoid losing that kind evidence. Secondly, and equally important here.

No one should forget that we got investigation that that is looking at the conduct of other people and businesses and waiting like that would benefit those other participants they could all end up above the law.

If the limitations period expires Stokes delay. Here is the same as absolute immunity and national permit immunity for the President and others in the statue limitations expires that that the problem with the delay while the statute would be told against the President. But you're right, it would be totally against other people who may or may not happen, committed crimes for he may or may not be a part correct correct and best important run for the third part is just best to address the of my friend the other side comments about the tolling I'm not aware of and state law of any doctrine of implied tolling that would apply here into to protect the state interest in investigating, and for potentially prosecuting if necessary down the road. I don't know where that concept comes from but it's never been articulate by this court.

There is no act of Congress which permits that kind of tolling here and so for us. The statue limitations is a big concern we've we've friendly regarding lost nine months of time in this investigation. Due to this lawsuit, and again this to you every minute that goes by is basically without even a decision on the merits, either granting of the same kind of temporary absolute immunity that the President is seeking and talking about how to analyze these burdens in a case way burdens both in terms of the President's time and in terms of any possibility of harassment of the use of the subpoena for political purposes. Ms. Jay Sekulow said that the burdensome nature of the subpoena is categorical. That was his turn and I take him to me that I had any subpoena interferes with the President's responsibilities or undermines the President in his handling of the office. So what's the answer to that. I may make frequent, I think the fact is that this, the court addressed this question. I think in Clinton and concluded that a President can't realistically be shielded from every sort of private distraction including some forms of legal process, especially our modern age. So that's why it's up to a court to evaluate and protect the President depending on the circumstances, on a case-by-case basis.

Secondly, here, the claim of possible mental distraction is excreted completely speculative really is based on the notion that the President might be worried and distracting about where investigation might lead Sunday is not based on any actual article to burden or interference of the sword of the court was asking President Clinton to demonstrate in Clinton B.

Jones and third.

I say it is actually the concern I think is wrong to think that even a categorical rule here would provide comfort to the distractible President like that. So, for example, nobody suggests you that we should be barred from continuing to investigate the present prior colleagues. If we now gather documents from them that reflect past communications with him while he was CEO. Are we then supposed to be stopped because it could create a fear in him that the investigation of others might lead him to be accused of something someday. I get my point is that the speculative mental distress standard is not an appropriate basis to draw a constitutional bright line. That's why the case specific approach is more appropriate. Mental distress happen if they really mean political undermine well I mean it that that's beyond the can of our office Your Honor and and is again the district court found there was no bad faith intended by virtue of our part subpoena so I don't know that we can determine here it is no intent to politically undermine so I don't know how court could try to evaluate that and I'm not sure that would be appropriate, unless suggests that you show your bad faith by taking the language of the House oversight committee subpoena. Yes, you think we we pray to address that I made the simple fact is that in 2018.

When investigation started in and thereafter as we spelled out in and there were a series of the public disclosures in the in the press about possibly illegal transactions involving tax and other financial proprietor varieties and at the time of the house subpoenas in our subpoena.

It was clear that both our office and the house committees were looking at the same public allegations in that regard. In a situation like that. Once the house subpoena became public. It's not unusual for office like ours the model are subpoena language on that which is Artie been made public. From a different source. What is going to the same recipient makes it easier on the recipient of the process. There is actually no communication between our office and the house about this is nothing sinister about like to return to your colloquy with the Justices Alito in soda Mayor because I guess I am uncertain what the daylight is between the test you're proposing and test the solicitor Gen. has suggested, but it seems like both of you agree to these questions should be resolved in federal court, and you suggested that there is prosecutor should have to be demonstrated. Objective basis for the investigation and that there is at least a reasonable probability that the information sought will be helpful to that investigation, but it can't be obtained elsewhere and that is needed now rather than at the end of of the President's term because of some serious prejudice of my big place in between designers to your discussion. Just a set of