Thread by @jentaub

💰 The demand for Trump’s Tax returns has reached the United States Supreme Court. My live-tweet thread today is dedicated to the more than 120,000 people who gathered for @taxmarch nationwide on Tax Day in 2017.

#ReleaseTrumpsTaxes #FollowTheMoney

1/

Before the argument begins at 10 a.m., I'm tuning into @neal_katyal and @gtconway3d who will be chatting live on Instagram beginning at 9:45 (in a couple of minutes).

2/

Waiting on Neal . . .he says 1 minute.

3/

Neal asks George what he thinks will happen today. George said because we won't have the usual free-form argument as it will be telephonic. Usually the side that gets the tougher questions is how he judges how the court is leaning. With this format equal number of questions.

4/

Neal says folks ask should we just expect a 5-4 decision because five justices were appointed by Republican presidents and 4 by democrats. But neither think this will be how the court goes. George reminds us that Clinton v. Jones was 9-0. No one is above the law.

5/

George: "Trump should lose very handily" if the court follows precedent from Clinton v. Jones.

Neal: Was Supreme Court clerk for that case. Even in the Nixon case, when several justices had been appointed by him ruled that president's oval office tapes should be handed over

6/

George is discussing briefs. Trump brief as compared to House brief. While Trump says it's unprecedented to enforce subpoena like this, House said, of course it is because other presidents complied with Congressional subpoenas.

7/

George reminds us of presidents handing over private papers including in the Carter era with his brother Billy.

8/

George points out that it requires the president more effort to oppose the subpoenas than to do nothing. Documents are with third parties (Mazars and the banks).

9/

I think @gtconway3d is drinking a diet coke. Or it's a root beer. Cannot discern.

10

Neal say arguing before the court is intimidating (he should know given the numerous cases he has argued). Remembers hoping he would not faint before his first argument.

11/

Okay. Two minutes until the argument starts. You can listen hear on insta or switch over to c-span.org/video/?471676-…

12/

Oyez. Oyez. Oyez. Here we go!

"God save the United States and this honorable court." GAVEL!

13/

First up is Patrick Strawbridge for the president. Says the House committees do not have the authority to issue subpoenas to third parties (Mazars and the banks) to obtain the president's personal records. Says committee is overreaching.

14/

Chief Justice Roberts with first question. A tough one. Probes Strawbridge "Do you concede any power in the House to subpoena personal papers of the president"?

15/

Roberts: "Does you position recognize" that congress may have the authority and is it up to the court to decide.

16/

Strawbridge admits that there is some power in the House to subpoena.

Roberts: So is this just a balance competing interests on either side?

17/

Now Roberts calls on Justice Thomas. Twice. Thomas said nothing.

Now Ginsburg's turn

18/

RBG: "It gets to be a pitched battle because President Trump" refuses to hand over his tax returns like all other candidates.

"Sauce for the goose". How do you distinguish White Water where Clinton's personal records were subpoenaed from accountant?

19/

How do you distinguish Watergate, White Water, Paula Jones case, she asked.

Strawbridge: Tries to dismiss the recent cases because there are "just a handful" of recent cases. Huh?

20/

He said "consent is not the measure of constitutionality."

21/

Now Thomas does have questions. Asks whether there are any limits to House to subpoena private documents.

Strawbridge said yes.

Thomas asked him to define what the limited power is

22/

Thomas refers to a case that said this sort of information should be requested under the impeachment power.

Strawbridge said that case has no bearing because committees waved reliance on impeachment.

23/

Justice Breyer asks are you saying that Sam Irvin's subpoeanas under Watergate which are broad. Are they unenforceable, yes or no?

24/

Breyer also asks why wouldn't whatever standard applies to personal papers before presidency be easier to meet than papers that are part of workings of presidency?

25/

Strawbridge refused to answer Breyer's first question and wrongly said it involved impeachment (but didn't in Nixon case -- he was mistaken).

26/

Justice Alito - Does Congress have any power to regulate the conduct of the president?

Strawbridge: Not very much

27/

Justice Sotomayor: There's a long, long history of Congress seeking records and getting them. . .from presidents."

She said the standard for granting subpoena of Congress is a "conceivable legislative purpose and relevant to that purpose."

28/

She asked whether the House Intel committee on foreign influence in elections was not legitimate?

(Though she seemed skeptical about the other committee investigating money laundering).

29/

She adds that these are not "his" papers, they are in the possession of third parties.

She disagrees with the idea that they are custodians as these are not papers that belong to the office of the precedent.

30/

My note: So far, the court sounds skeptical of President's arguments.

31/

💥Kagan: We have never had to address this issue because Congress and President have reached accommodations. You are asking us to "put a ten ton weight on the scales between the president and Congress" and this would make it impossible for Congress to perform oversight."

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Strawbridge says whatever power Congress has should not extend to president.

Kagan says these subpoeanas do not go further than earlier ones have gone. There's no executive privilege issue here. Personal records.

33/

Kagan sides with Breyer, why isn't this a lower standard as these are personal records.

34/

Strawbridge said because there's still a need for president not to face undue distraction and harassment.

He wants a "demonstrated need" standard.

35/

Justice Gorsuch: Why should we not defer to the House's views about its own legislative purposes?

Strawbridge said this is a challenge to the separation of powers even though personal papers.

36/

Gorsuch interrupted him and said, why is this subpoena not supported by a substantial legislative need?

37/

Strawbridge says Congress has not articulated what the legislation would be that would justify obtaining minute financial details even related to President's children.

38/

Justice Kavanaugh is asking about the two different standards that are being discussed and whether Congress could meet demonstrated need.

Strawbridge is claiming a draft statute would have to be already written????? Crazy

39/

Kavanaugh notes that absent a court order, recipients of subpoenas (Mazars and Deutsche Bank), they will comply with Congress.

40/

Up next is Jeffrey Wall the U.S. Principal Deputy Solicitor General

👀Roberts says brief argues that purpose was investigative not legislative. If so, "should a court be probing mental processes of the legislators. Should House committee members be subject to cross exam?"

41/

Wall said that would not be necessary, but just look at the reasoning they claim -- says doesn't match up

42/

Thomas, what if the actual goal was to remove the president from office as opposed to pretextual legislative reasons?

Wall said subpoenas are invalid if they are not for a legislative proposal.

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Wall said it's "not an accident" that the reasoning for legislative work is "paper thin".

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🔥RBG: "One must investigate before legislation." She said first you gather information and then craft the law. "Legislative purposes" includes "investigate to see if you need legislative of that sort."

"Here you're distrusting Congress more than the cop on the beat."

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Wall said "room for regulating the president" is more narrow than private parties.

46/

Breyer says it should be rare that Courts resolve political disputes between two branches. But if they do, why not apply same standard as grand jury witness can. Can argue to judge that it's too burdensome.

47/

Breyer says would you object to court applying standard of if president has special needs?

Wall said lower courts have rejected the analogy as this is a legislative not a grand jury (prosecutor's) subpoena.

48/

Justice Alito asked him to apply the standard he thinks is appropriate to the subpoena from the House Intel committee.

Strawbridge: Said it goes back too far and focuses only on president. Doesn't just focus on foreign transactions.

49/

Wall also said House fin. ser. said it was looking at money laundering post 2008, but only asked for docs going back to 2016?

Alito said does Congress have power to regulate president re conflicts of interest?

Wall said unlikely.

50/

Okay -- it's my DREAM that Kagan writes this opinion. I want to see that "ten ton weight" analogy in the decision.

51/

Sotomayor -- Trump was thinking of running for president for a long time. Why wouldn't it be important to see those relationships overtime to see if undue influence as happening over the years.

52/

🔥She asked, in what other setting does any investigative body have to do more than what was done here for private records?

Wall does not have an answer as it relates to pre-presidential private records

53/

Wall says it makes it worse. Says, "deeply troubling constitutional concerns."

54/

Kagan returns to Clinton v. Jones. "The fundamental claim of presidential immunity or even presidential difference was rejected in that case."

She said no place do you make a case for why these subpoenas place a particular burden on president to carry out his duties.

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Wall said these subpoeanas taken in aggregate will harm the institution of the presidency going forward

56/

Gorsuch: What more would you require the House to do to assert the interest, heightened need?

Wall: Said House has to describe legislation with specificity

Gorsuch: What if legislation were to have Presidents to disclose tax returns.

Wall: Vague response

57/

Kavanaugh asks procedural question. Does full House have to authorize the subpoenas?

Wall: Says resolution is a "rubber stamp and blank check."

58/

Wall addresses Kavanaugh questions about Watergate and White Water.

Said White Water subpoena is very much like this. But if we go down this road Houses will weaponize against president. "We will regret having taken it."

59/

👀Up now is Douglas Letter representing the House of Representatives.

BAM: He tells Court that Wall directed them to the wrong page of his brief. Also said the DC Cir said the House has provided details.

Holy Guacamole! He's ripping apart his "good friend" Mr. Wall.

60/

Letter said some of the records are ones that President Trump has not even seen. The third party records (banks) on their analysis of him for offering loans.

61/

CJ Roberts: Is asking Letter about the standard he proposes.

Letter refers him to the Kilbourn case.

Roberts sounds skeptical. Says "limitless test" is not good enough

62/

That was "pertinent to a legislative purpose" but Letter said it was not his test. It was Court's. Limit would be if it interfered with President's Article II Powers

63/

Thomas is asking questions of Letter now.

Letter said we cannot have Congress passing legislation in ignorance. Just because power is implied doesn't mean it's not important.

E.g. court's power of judicial review is not mention in US Const'n

64/

Thomas asks for earliest example of legislative subpoeana. Said during Washington's presidency, there was a Congressional investigation of St. Clair investigation? Said it was equivalent.

Letter said Court described legislative sub. for personal records in Watkins

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RBG: What is the limiting principle that would draw a line between legitimate legislative purpose, not to harass a president of the opposing party?

Letter: Mentions court's decision in McGrain and Clinton v. Jones.

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Letter: There is no responsible claim here that all that is going on is harassment. And if so, the Court can respond

67/

Breyer asks Letter whether there was proper authorization from the full House? He said this authorization that came after the challenge offers a blank check. Thoughts?

Letter: Modern congress has delegated to committee chairs the right to subpoena, plus full House ratified

68/

Alito: What role should courts play if the subpoena is being used for harassment?

Letter: Said look to Clinton v. Jones.

Alito: Does it just have to be relevant to some conceivable legislative purpose -- says that's no protection

69/

Letter: Said these are to third parties.

Alito: Does it matter if it does not take up his time. What if it is "solely" for harassment?

Letter: Congress's power to legislate is very broad.

70/

Letter said there may be constitutionally based privileges that set limits.

Alito said what about documents in third party. Name one.

Letter: Executive privilege, state secrets, could enter in

71/

Alito: Are there any limits on using a president's records to study?

Letter: Said there's massive public reporting that before he became President, Trump and family have been involved in money laundering. This is part of a much larger sector wide investigation

72/

Sotomayor: There's no congressional power to expose for the sake of exposure? Making a president a case study? What about his medical records related to enacting healthcare policy? What is your response?

73/

Letter: Just for the sake of exposure is not good. Key is pertinence to a legislative purpose. Here the Intel committee has an obvious need to focus on president's financial records to see if he is subject to foreign leverage.

74/

Sotomayor: Are there already disclosure laws in place, how could this investigation improve those?

Letter: Yes. Do we need better laws about conflicts of interest, contacts with government agencis.

75/

Sotomayor: Was the breadth of subpoenas litigated below?

Letter: Yes, by second circuit and DC Circuit

76/

Kagan: You said subpoena could not impair president's constitutional functions

Letter: There has to be a balance

Kagan: Would as Wall claimed today, would this interfere with president by undermining him?

Letter: He never made that in his brief

77/

Kagan: What does the history show us with respect to this issue?

Letter: "History can help inform what the Constitution means." Washington, Buchanan, Grant, Nixon, Carter etc. Some voluntarily provided some didn't

78/

Letter: Congress got tax returns from Nixon and his family. Arguments being made by president Trump "ask you to ignore a massive amount of history."

79/

Gorsuch: Said normally subpoenas are used to investigate known crimes, not to look for crimes. How do you provide a limit so as to avoid that?

80/

Gorsuch is concerned that the "can't be burdensome" limit is not sufficient?

Letter: None of the subpoena recipients have claimed burden. But he recognizes the concern.

81/

Gorsuch: "It's possible this person jay walked or failed to pay his taxes"

(Interesting choice of off-the-cuff false equivalency).

82/

Letter used as example that Congress might in response to the Bridgegate decision to investigate whether a different law needs to be enacted to address that public corruption (the Wire Fraud statute was not applicable as it requires money or property to be taken).

83/

Kavanaugh also seeking a limiting principle. Said "pertinent to a legislative purpose" covers nearly everything.

How can we both protect Houses's interest and also protect the presidency?

Why not employ the "demonstrably critical" standard?

84/

Interrupting this transcription of the argument to join today's protest:

#ReleaseTrumpsTaxes

85/

Kavanaugh focuses on medical records.

Letter says he does not see how president's personal medical records could be relevant to the Affordable Care Act.

86/

Letter said there would be no valid reason to be asking for the president's personal medical records

87/

New round of questions. Roberts notes that we are dealing with three separate Congressional committees. At one point does the number of committees become a factor with the issue of harassment.

Letter said: Look at Clinton v. Jones. Said subpeona by Intel and Fin. match

88/

Letter: Because these are subpoenas three private businesses, this will not affect the White House functioning.

89/

Thomas, why should we look at these in the aggregate instead of in isolation?

Letter: He agrees, if there are a massive number of subpoenas to the White House from the House and Senate.

NOTE: Letter keeps speaking about third parties

90/

Letter: "Let me emphasize one more time. Our subpoeanas are to private business entities. . . not a single thing is required of the president.

Thomas: "I think we all know this is about the president."

91/

Breyer: Sounds cross. Said it's voluminous information. Said it would take effort and burdens on president even if third party because wouldn't you want to consult with the third parties. Time consuming. Monitor.

Worried about a future Senator McCarthy.

92/

Breyer said these documents go far beyond tax returns.

Letter: Nobody has raised a privileged claim. Also, money laundering looks at a whole range of financial activity. This is what senate and house staff do when they look at banking industry reforms.

93/

Also, Letter said there has been "no claim there is a burden" in this case.

94/

Alito asks whether doctrine of separation of powers would impose limitation on subpoena for records regarding legislative functions of senator or house member

Letter: Said, wouldn't that violate Speech or Debate clause

95/

Alito -- if they are about personal activities from before they were elected? Pertinent to legislative purpose. Case study.

Letter: Would be a valid subpoena. Not aware if it has ever happened

96/

Sotomayor: "That's the whole point, though, isn't it?"

Letter: Disagreeing strongly, said we have history of Congress seeking personal papers of Jackson, Buchanan, Grant. . .many decades, not just a modern practice

97/

Kagan wants him to distinguish between Intel and Oversight committees vs. Financial Services subpoenas. Said the latter was taking a broader scope. In such case shouldn't there be more heightened need?

Letter: I think this still raises major separation of powers questions

98/

Letter said there is massive public reporting about the subject of these proceedings. And Deutsche Bank and Capital One have been sanctioned for not complying with money laundering laws.

99/

Letter returns to Clinton v Jones. This court issued a clear decision. If contrary to what has happened in the past, if there are situations when president's ability to do his job is undermined, courts are there to resolve it.

100/

Now CJ Roberts invited Letter to wrap up.

"We ask the court to focus on the specific subpoenas in this case. We're not dealing with what ifs here."

101/

Now Strawbridge has 2 minutes for rebuttal. Said Letter struggled to articulate a limiting principle. Congress has right to regulate food safety, why couldn't under his theory the Congress subpoena president's medical records eating, etc.

102/

And we are done. The case is submitted. (I did not hear a gavel).

Next up is Trump v. Vance

103/

Here we go. Jay Sekulow

"Temporarily presidential immunity" is required.

104/

Seklow says if Vance can use a subpoena to get the tax returns from Mazars then district attorneys across the country can harass the president.

Says Vance used same language from the congressional committees to get documents but for different reasons.

105/

Roberts: "You don't argue that the grand jury cannot investigate the president." "It's okay for the grand jury to investigate" but cannot use subpoena?

Vance said cannot use subpoeana targeting the president, he said.

106/

Whoops == that should have said Sekulow

Roberts questions Sekulow's logic. Why not object to the grand jury investigation entirely. In Clinton v. Jones we were not persuaded with the argument that distraction meant the discovery could not proceed.

107/

Justice Thomas asked Sekulow to point to some language at founding or ratification that provides for this presidential immunity?

Sekulow references some colloquys and letters.

108/

Sekulow -- there are 2,300 district attorneys. That's the problem.

Thomas: Does it matter that subpoena goes to third party?

Sekulow: Says no, the burden is on the president to look at documents etc

109/

RBG: We have said that the grand jury has a right to everyman's evidence. Is the president an exception? She also said what if Paula Jones had sued in state court?

Sekulow: Said the court then said local prejudice issues would come into play (pages 691, fn 13).

110/

Sekulow says the president is himself a branch of government and is temporarily immune from a state proceeding while he is president.

"The president is not to be treated as an ordinary citizen."

111/

🔥Breyer, millions of people can file the papers at anytime to sue the president. Cases might not survive. But we don't prevent.

Why not just require president to show why it's undue burden and lack of connection, he wins. That's Clinton v. Jones. Why not the same here?

112/

Note to self: A lot of chutzpah for Donald Trump who loves to sue people to complain about getting sued

113/

Breyer says why not litigate over the burdens?

Sekulow doesn't want a case-by-case analysis. He wants blanket immunity

114/

OMG. Sekulow is saying he won't be able to get President's attention for a couple of hours to go over subpoenas. . .I think Trump can find the time (just cut back on tweeting and golfing).

115/

Heck yes! Alito is saying what about statutes of limitations or practicality. Why couldn't grand jury subpoenas move forward from the state as if presidential immunity then a president could get away with a crime?

116/

Alito said, what if the president is not a target?

Sekulow says constitutional -- even as witness it raises serious issues.

117/

Sotomayor says the constitution protects against presidential interference in state criminal procedures. Cannot pardon for state convictions. Yet she says "I find it odd" that there's a presidential immunity from state investigative/police powers. . .

118/

💯Yet we would allow a state civil damages case, she added. And don't we always give president option to show subpoena is in bad faith. Said "I'm not sure he's entitled to more immunity for private acts than he should be for public acts."

119/

She said if judges sexual harass someone they can be sued. So can congressman. You are asking for a broader immunity than anyone else gives.

120/

Kagan says it's also true that "a president isn't above the law." CJ Marshall told Jefferson that he could be subject to subpoena.

121/

Sekulow seems fixated on the language used in the Vance subpoena.

122/

Gorsuch asks Sekulow to distinguish between Clinton v. Jones.

123/

Gorsuch points out that it was even less burdensome then because they sought a deposition of the president. But here it's documents from third parties.

124/

Kavanugh asks him to explain the rationale for having one rule for state civil cases and state criminal cases.

Sekulow: Said the criminal nature is more burdensome. Idea that you are the target where loss of liberty could be the result.

125/

What about the statute of limitations issues, Kavanaugh.

Sekulow said there are procedures under state law

126/

Now Solicitor General Francisco is up.

Argues for a "special needs" standard so that the local prosecutors balance local needs with presidential

Say Vance did not try to meet standard

127/

Roberts asks the Solicitor General whether he agrees with Trump's lawyer Sekulow re absolute immunity. What is wrong with Trump's position.

Francisco: Says the court does not need to address that. Says Vance needs to meet special needs standard.

128/

Hmmm. That was not convincing. He is not be straight out honest because if absolute immunity applied, then no need for the special needs standard.

If someone tells Trump this he will be angry that Francisco does not have his back

129/

Thomas says how do we determine when the burden is too much on the president?

Francisco says local prosecutors have prejudice so federal court must balance local interest against national ones including president doing his job

130/

Francisco said the grand jury rules are not enough to protect the president if he is a witness, for example.

131/

RBG: Said Francisco says states are subordinate to the federal government under the supremacy clause but you don't give any credit to the 10th amendment about the reserved powers of the states.

132

Francisco says that the president is the sole authority under the executive power, so that's why they need an undue burden standard.

Wants local prosecutor to have to meet same standard as in Nixon case.

133/

RBG says grand jury is an investigative body and does not make charging decisions. Says it's backwards to ask them to make charging decisions before hand.

134/

Francisco said you don't need charging decision

135/

Breyer said Nixon tape doesn't help in one respect because executive privilege. But on the other hand does help as lower courts had assessed burdensome nature question

Why do you need anything special here? You do need a decision by us that it's reviewable in federal court

136/

Breyer presses Francisco arguing that the higher standard in Nixon was because of executive privilege, but Francisco says that should apply here due to the prejudice of state officials.

137/

Alito asks how this showing would be made in federal district court. Would prosecutor showing be reviewed ex parte? Would it be available to sitting president?

Huh -- Francisco has not thought this through. He says he'll "take my best stab at it."

138/

Maybe ex parte or filing under seal, he said.

Alito: "How essential must the information be to meet the special needs standard?"

Francisco: "It does have to be critical to the charging decision." Can't be readily available elsewhere.

139/

Sotomayor said always danger in taking a doctrine created for one set of needs (executive privilege) and for proceeding at issue that is totally different, that doesn't involve executive privilege or immunity. Private activities that pre-dated the president's tenure?

140/

Why not ask if it's based on credible suspicion of criminal activity and whether it's calculated ...

(sorry got distracted by something in my house).

141/

Kagan is up now. Said point about executive privilege cases is not that it's burdensome. The Nixon standard was developed because of concerns about protecting confidentiality of communications.

Francisco: Said article II also protects him from local prosecutors

142/

Kagan said you don't need a heightened standard to deal with burdensomeness. Said lower courts can consider burdensomeness and heightened standard should not apply to personal records

143/

Gorsuch wants to explore practical application of standard. Why wouldn't obtaining tax records of defendant meet even the heightened standard.

Francisco says the DA said he could not indict the president, so he doesn't meet

144/

Gorsuch is a reasonable suspicion of tax deficiency enough?

Francisco says no. Must apply Nixon standard (as also applied in Fields).

145/

Francisco "all executive power is in a single person." Says if 2,300 prosecutors ask president for information you are interfering with his ability to do his job.

146/

Carey Dunne (counsel for Vance) is speaking. As the courts below found, there was no Article II burdens and he subpoena was not motivated by political animus. It stemmed from evidence of a crime

The floodgates have been open for generations and there's never been a flood

147/

Roberts compares Trump v. Mazars and Trump v. Deutsche consolidated case from this morning to this

Here there is no ongoing relationship with prosecutors, harder to work things out. Shouldn't there be a higher standard than in the case of separation of powers dispute?

148/

Dunne said there should be a heightened showing but only AFTER president has established an actual Article II burden. That balance and sequencing is critical.

149/

📌Roberts asked for what standard Dunne would apply.

Dunne: If there's been an affirmative showing of the president of an article II burden, prosecutor should be required to show (1) objective basis; (2) reasonable probability request will yield valuable information

150/

Thomas asks Dunne why DOJ approach would harm the grand jury process.

Dunne: If district attorney has to go into federal court to get permission to send subpoeana to president or agents (like accounting firm), it upends how gj process works

151/

Dunne said language DOJ wants doesn't apply in context of grand jury when no charging decision have been made

152/

Thomas asked what limits a grand jury process in NY

Dunne said a recipient can argue a privilege or a burden has a right to go into court and make those arguments that it should be quashed or constrained in some fashion.

BTW, I love the word quashed.

153/

RBG said here there are 2,300 district attorneys each with grand jury subpoena power. No one at the helm. In comparison with the 94 US Attorneys, there is the Attorney General,

154/

Dunne said not been a flood. Also this notion, there's no basis to thing an army of local prosecutors would have jurisdiction over a president for private conduct. But here NYC because Trump business is headquartered here. Other counties would not have that connection.

155/

The only good thing about this pandemic is being able to hear SCOTUS argument live. Incredible.

156/

Breyer said there's a conflict between "everyman's evidence" and the Article II powers. Just like this morning's case re separation of powers.

Dunne says they don't conflict but are in tension.

157/

Alito says under Dunne's standard there would be an available review in federal court. What would be his objection to a "somewhat more demanding standard" adding that it would be difficult to obtain information from another source as well as need for it now

158/

Dunne said the reason we went to Mazars as it was the only respository for the documents. So those concepts would be fine

Alito also asked do you think the adjudication of this would be impacted on a state's laws on grand jury secrecy?

159/

Dunne said that could be part of the case-specific analysis

Alito said some prosecutors leak

160/

Dunne says use of a subpoena for harassment would be an article II burden

161/

Sotomayor asked Dunne whether he agrees with heightened need standard?

Dunne said no.

Sotomayor, if it includes what the standard does, then what difference?

162/

Dunne says his standard would not require the subpoena to be linked to trial or charging decisions.

163/

Sotomayor asks how the DOJ's standard would interfere with grand jury?

Dunne: Said it really is an absolute immunity because you'd have to wait until his out of office because you cannot indict while he's out of office.

164/

Would risk loss of documents, fading of memories. He references the Moss memo (this is one of the DOJ internal memos that says a president cannot be prosecuted at federal level while in office).

165/

Sotomayor: Other side said statute of limitation would be tolled (put on pause) but wouldn't apply to third parties?

Dunne: said there's no doctrine of implied tolling available EVEN for president

166/

Dunne says we've lost 9 months of time in this lawsuit

167/

Kagan asked Dunne about how to analyse burdens in a case specific way in terms of president's time and harassment. But Sekulow says it's categorical, presumably that any subpoena is distracting and undermines the president.

Dunne responded by referring to Clinton v. Jones

168/

Dunne says the article II burden from Clinton v. Jones is higher than this speculative mental distress standard

Kagan: What if it's just political undermining

Dunne: District court found no bad faith no intent to politically undermine

169/

Kagan asks about why he took language of House subpoena.

Dunne: Said once House subpoena became public, it makes sense to model our language after theres as it makes it easier on the recipient (Mazars).

170/

Gorsuch wants to know how Dunne's tests differs from the Solicitor General Franciscos

171/

Dunne walks through the procedural differences between them.

He wants the burden to be on the president, not the prosecutor at the outset.

172/

In addition to the burden of proof, Dunne was also concerned about the language (the part about links to charging decision etc).

173/

Dunne said the article II interest is to be free from unreasonable burdens, same analysis as in Nixon and Clinton. Also as a matter of degree, time, energy distraction are relevant.

174/

Dunne said in Nixon and Clinton were talking about separation of powers, here we are balancing police power of the states against the supremacy clause.

175/

Roberts is opening up a second round of questions. How do you balance the burden on the president or presidency. Is there supposed to be a hearing he says, "I've got this pandemic thing, China causing all kinds of trouble"

176/

Dunne said this court has already decided that you cannot shield a president from every sort of private distraction?

Roberts asks isn't a criminal proceeding more distracting?

Dunne says he's not sure public stigma re taxes is worse than private sexual misconduct (Jones)

177/

Dunne is so damn good

178/

Thomas asks Dunne about what kind of burden would count

Dunne: See language in Clinton case, where it was observed in dicta that if president was asked to appear and testify at trial outside White House or show up for multiple days of deposition testimony

179/

Alito asks whether Court's prediction in Clinton v. Jones that it wouldn't have much impact on the presidency has been borne out in history?

Dunne: District court kept close rein on testimony and later summary judgment for president. It was perjury that led to problems

180/

Sotomayor asks for clarification about the difference between Dunne's view and Francisco's

Again, "charging decisions and central issues at trial" language is not workable.

181/

Kagan says president's lawyers say there's a legal distinction between state courts and federal courts

182/

Dunne says federalism and 10th amendment give states right to exercise their powers in the criminal context. State prosecutors have reserved police powers of the state. And a large body of criminal conduct is only prosecuted by states.

183/

Kavanaugh asks, putting aside statute of limitations concerns what other issues prevent just delaying until he's out of office?

Dunne: Losing evidence, losing witnesses (again refers to the Office of Legal Counsel Moss memo). Plus third parties would become above the law.

184/

Dunne wraps up his argument. Subpoena is well within the scope of legal process. Courts already have robust tools to protect presidents from unjust claims or harassment

185/

Sekulow is back with rebuttal. Points to places of agreement between him as Trump's lawyer and Francisco, the solicitor general, that article II implications and burdens.

So, it seems despite the fact that he's arguing for absolute immunity, seems flexible?

186/

Sekulow is weirdly aghast that the same records could be used for two purposes

187/

The problem is the courts below said it was legit and not a burden.

Case is submitted. Gaveled out.

"The honorable court is now adjourned utnil tomorrow at 10 o'clock."

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