Thread by @marty_lederman

Thread on Mazars cases (assuming there'll be something to say). I'm curious how much focus there'll be on the HPSCI need to examine Trump's possible foreign entanglements -- which is what's really most important in the case. /1

#SCOTUS #mazars @just_security

Pleased to have filed this brief in the case with Jessica Bulman-Pozen, Bill Marshall, @GillianMetzger2, and Zack Tripp, discussing Congress' power to oversee and inform about the Executive. /2

supremecourt.gov/DocketPDF/19/1…

Radical implications of Trump's argument already apparent: That the congressional Whitewater and Watergate investigations *were unconstitutional.* /3

Note Strawbridge's effort not to answer directly SGB's question, because his answer (Watergate investigation was unconstitutional) is so absurd. /4

Alito asking about the other radical aspect of Trump's argument--that Congress can't substantively regulate the POTUS by statute--not even to subject him to financial disclosure requirements. /5

SS asking about HPSCI inquiry, which is where the focus ought to be. But the Justices so far (pre-Kagan) aren't asking pointed enough short questions to compel Strawbridge to answer directly. /6

Note how PS doesn't answer whether HPSCI can investigate Trump's possible conflicts. He understands that this format allows advocates to avoid answering the hard questions. But that's only helpful if you don't think you need to win over any skeptical Justices. /7

Apparently PS thinks he has five votes in hand, b/c he's not trying to gain any ground or allay any concerns. /8 We're now on the final Justice, and *none* has pressed PS to answer any of the hard questions. They all appear to be waiting for Deputy SG Wall. /8

The SG's argument is where the action will be--fairly radical, but not *as* radical a challenge as Trump's to Congress's investigatory power or substantive power to regulate the POTUS. /9

Note how Jeff Wall is focused on the alleged overbreadth of *these particular* subpoenas. /10

Contrary to what JW argues, the subpoena doesn't have to actually be in the service of legislation. As our brief demonstrates, it can be for oversight/informing purposes, as long as legislation is *possible.* /11

Notice how JW's argument, unlike Trump's, is also much more limited to investigation against the POTUS.

Notice also how *no* Justices, so far, are making any effort to compel counsel to answer the hard questions. /12

Alito at least asking about the right question--HPSCI's need. But doesn't press Wall to explain why, apart from legislation, HPSCI doesn't simply have an *oversight* interest in assessing counterintelligence risks! (You know, what HPSCI/SSCI do every day.) /13

Sorry, somehow cut off the list of my co-amici, which also includes @petermshane and David Strauss! /14

Kagan pushing on one of biggest weaknesses in SG's argument--no demonstration of *any* burden on Trump's ability to actually perform his presidential functions. Note that Wall falls back to reputational harm--as to which EK's right: the Clinton v. Jones Court . . . /15

... unanimously rejected that argument.

I think all the Justices would agree with me that this argument (thus far--end of topside arguments) has not added any value at all--they appear almost resigned to that. /16

Note that Wall, unlike Trump, is not saying that the Watergate and Whitewater investigations were categorically unconstitutional--only when Congress subpoenaed *private* records in those cases (which it did). /17

We offer an answer to Roberts' question about subpoenas that wouldn't be germane at page 32 of our brief. /18

supremecourt.gov/DocketPDF/19/1…

Thomas naturally going back to question whether Congress has any subpoena power at all. For him, why bother with 200+ years of practice? /19

Here's another example, Justice Thomas, of an implied legislative power: The power to incorporate a bank--the Court in McCulloch v. Maryland held that that was an implied power before it ever got to the N&P Clause. /20

Once again, at page 32 of our brief we offer a response to the BK questions. The other response is the one Kagan offered: the prospect of embarrassment by virtue of exposure of wrongdoing or bad judgment was even more acute in Clinton v. Jones, ... /21

supremecourt.gov/DocketPDF/19/1…

... and the Court unanimously rejected it as a justification for special POTUS-specific limits or immunities. Watergate and Whitewater were embarrassing. The Benghazi hearings weren't? So have been countless other congressional investigations of Presidents . . . /22

... and other executive officials since the 18th Century. Here, at least, there's a very serious *need* to determine whether Trump is compromised or has conflicts. That answer might be embarrassing, or not, but that's the least of it. /23

This is a weakness in having to defend all the subpoenas--a reluctance to concede that some, e.g. the HPSCI subpoena, are obviously much more important and tailored than others. /24

Curious whether others agree that this oral argument didn't accomplish much for anyone, counsel or Justices. Now onto the Vance argument ... /25

Before Vance starts, I'll reiterate that, unlike the previous case, this one is *very, very, very unlikely* to result in any public disclosure of Trump's records. NY grand jury rules, even more than federal rules, require strict confidentiality. /26

So far these Qs and As speak for themselves--I have nothing interesting to add! ;-) /27

OK, I'll say this: As the case comes to the SCOTUS, these questions about particular burdens on the POTUS would be considered by *federal* courts, as in Clinton v. Jones, not only state courts. Sekulow hasn't yet explained what'd be inadequate about that. /28

In response to Justice Gorsuch: The litigation about actual burdens on the POTUS could occur in *federal* court. Thus the only difference is civil v. criminal. /29

Everyone hear the sound of Justice Kavanaugh pausing and glancing at the minute hand before saying "Good afternoon, Mr. Sekulow"? ;-) /30

BK's question on Statute of Limitations is very important. /31

Notice how, in *both* cases, there's no case being made at all that these subpoenas would have any material impact on the President's ability to perform his constitutional duties. And the SG's proposed standard here wouldn't even balance that fact in the inquiry. /32

Note to Justices (in this and other cases): If you ask two or more questions at once, you give the advocate the ability to mostly ignore the more difficult/important one. /33

Contrary to the SG's argument, the assessment of potential burden on the POTUS *can* be made in federal court, same as in Clinton v. Jones. /34

Dunne rightly emphasizes that *federal* judges will be gatekeepers, as in Clinton v. Jones. /35

And here's the other important point: NY GJ law prohibits any disclosure of the materials, and there's no history of such leaks. /36

Just curious: Was the suit in Clinton v. Jones potentially embarrassing to the President? To be sure, it only involved allegations of sexual impropriety, not possible revelations of any financial entanglements with Russia that would compromise the President, but even so ... /37

Dunne is right: The huge distinction between his standard and the SG's is that he would--rightly--require the POTUS first to make a showing of harm to constitutional functions, whereas the SG would simply ignore that consideration altogether. /38

Thanks for following. /fin