Thread by @stevenmazie

SECOND CASE BEGINNING: Trump v. Vance

Sekulow: if Trump loses, SCOTUS will "weaponize" district attorneys all over the country.

CJ Roberts: you don't argue that grand jury can't investigate the president, though, right?

Roberts: so grand jury can't use the most effective device, the subpoena?

A: not to target the president

Roberts: theory goes much farther than resisting subpoena though!

A: criminal process against the president is unconstitutional

Roberts: why is there distraction here, if there wasn't in Clinton v. Jones?

A: this is state court, not federal. this is criminal, not civil. Different issues than Clinton v. Jones.

[doesn't say what the differences are or why they matter]

Thomas: what provides for this immunity in the ratification process?

A: Adams, Jefferson - subpoenas interfere w pres responsibilities

Thomas the originalist speaking up means lawyers suddenly need to come armed with history books!

RBG: public has a right to "every man's evidence." No privilege involved here. Is that every man except the president?

RBG: If Paula Jones have sued in state court, would Clinton have had absolute immunity?

A: different issues, yes.

A: president is no ordinary citizen - he is a branch of government

Note that Sekulow just stated that President *is* the executive branch. John Yoo, the unitary executive guru, is melting from happiness.

Breyer: anyone can come to court and say a subpoena is unduly burdensome. Why not let that go case by case.

A: by the time you review all those requests, you are burdened.

[of course, it's only burdensome bc Trump is so adamant about keeping his records secret.]

A: Could you imagine that I will call president and say, I know you're handling a pandemic, but let's talk about subpoenas

Alito: what if prosecution is time-bound, and waiting till president leaves office would hamper the investigation?

Sotomayor: seems you're asking for breadth of immunity that is nowhere in the Constitution. Odd that you want us to rule there's absolute immunity from investigation—the height of state police powers—yet would permit civil litigation as in Clinton v. Jones.

Soto: doesn't president always have chance to show bad-faith if that's the case, yet usually prosecutors are presumed to operate in good faith?

"He's the president of the United States. He's a branch of the federal government."

Sekulow really going for an expansive vision of the presidency.

Kagan: not ordinary citizens, fine, but also true that a fundamental precept of our constitutional order is that presidents are not above the law.

So why not let courts review cases like these?

Sekulow: Vance copied the subpoenas from the House verbatim.

[he apparently has NO concerns about presidents being above the law]

Gorsuch: ok let's get back to Clinton v. Jones. What's the real difference?

Sekulow proceeds to not answer the question.

Gorsuch not having it.

Gorsuch: there they sought deposition of president, now it's just third parties.

A: what's to stop them from asking for deposition here?

Sekulow is equal parts shameless, brash, nonresponsive.

Kavanaugh: why is criminal a different deal than civil?

A: loss of liberty vs. monetary fines

[of course loss of liberty would only take place after pres leaves office]

A: criminal process different from discovery in civil proceeding. concern: nature of process so different.

NOEL FRANCISCO, THE SOLICITOR GENERAL, NOW UP ARGUING FOR TRUMP.

Roberts: special needs test must be met?

Francisco: Sekulow makes strong arg on immunity issue, but Court need not address it

Thomas: how do we determine when level of threat to president is too much?

A: state court poses more of a threat, esp in places like NY where there are judicial elections and local prejudice. so need federal court available to evaluate

Francisco lauds Breyer's concurrence in Clinton v. Jones

RBG: states are subordinate sovereigns, but what about 10th am and reserved powers of the states?

Also: no case more dramatic than Nixon tapes. Devastating impact on the president. But yet that was ok. So I really don't get it.

A: all exec power vested in president, so others can't unduly burden him.

RBG: grand jury is investigatory but doesn't make charging decisions. But you would have them make charging decisions before they investigate, which is backwards.

Breyer: Nixon tape case has one thing for you, one against: exec priv asserted, but in that case Court said, weighing of burdensome nature in lower courts. Why need a special standard here?

A: we'd need federal court review, and there are Article II limits. NIxon stands for more than weighing of interests -- it's a special needs standard -- special need for the information.

A: Litigation about private conduct is also burdensome, and may need more protection in state courts.

Francisco much more subtle and skilled than Sekulow (no surprise there).

Sotomayor: why are we using transplanted doctrine? let's use a new standard: "credible suspicion of criminal activity" and a "good-faith basis for the state prosecutor's inquiry"?

As Breyer wrote in Clinton v. Jones, need to develop special protective procedures. We should be suspicious

Kagan: exec priv cases not matters of burdensomeness, really. why use that standard here?

A: parallel interests. Article II is meant to prevent pres from being unduly burdened.

Kagan: burdensomeness can be addressed in any subpoena.

A: ordinary grand-jury rules aren't enough. judgment must be made by federal, not state courts. partisan elections in state courts. so use the 50-y-o standard.

Kavanaugh: what's the Article II interest?

A: all exec power resides in a single person, so others can't "hobble or debilitate" him; 2300 prosecutors hitting presidents with ability to effectively carry out his dutieis

NOW UP, CAREY DUNNE FROM THE NY AG'S OFFICE ARGUING FOR ENFORCEMENT OF THE SUBPOENAS

Dunne: American presidents are not above providing info for inquiry. We can't indict presidents, yes, but there is no Article II burden here. Public reports of illegal business transactions, so we have to act. Blanket immunity a no-go.

Dunne is already 40000% better than Letter was in the House cases.

Roberts: House & NY cases quite different [rare mini-lecture from the CJ]. No ongoing relationship w prosecutors from the states, so need a higher standard here given all the prosecutors around the country?

A: yes. DOJ's heightened showing standard doesn't work. Would harm the grand-jury process. Only after president shows an actual Article II burden.

Roberts: what standard should apply and why more rigorous than House-WH?

Dunne: requiring state prosecutor to get permission from federal judge first would burden the process.

Dunne: to require federal judge to approve subpoena completely upends grand-jury process. Lower courts found investigation is well founded and brought in good faith.

Thomas: what limits are there on NY grand jury investigations?

A: same as federal courts; grand jury judge supervises; clear that president can always go to fed court and raise Art II concerns

Thomas: could grand-jury process be ended if burden is found?

A: yes.

A: but can't be "speculative mental-distraction claim"

RBG: what about the 2300 prosecutor problem? no control in state courts as in fed courts, where AG regulates.

A: the parade of horribles has no empirical basis. Rejected in Nixon and Clinton cases. No basis to think that these 2300 would even have jurisdiction...

Dunne is doing REALLY well. Precise, concise, persuasive, nice turns of phrase.

Breyer: a possible solution is no absolute rule but make reviewable in federal court. Yes, all that would take time, and that would maybe discourage prosecutors from prosecuting. Whaddya think?

A: discourages bad-faith impulses, yes. that's the beauty of case-specific analyses. no categorical rule.

Alito: any problem w. a more demanding standard - info can't be obtained from another source and must be obtained right now?

A: those are incorporated into my standard, actually. Reason we went to Mazars: the only repository of the most important documents (accounting materials, not just taxes). Those concepts not unduly burdensome.

Alito batted Letter around like a cat toy; he has met his match w Dunne, who is defanging Alito's attempts at tricky questions.

Alito: we know that prosecutors leak info to the media, including the New York Times. yes?

A: no knowledge of that, sorry!

A: we don't turn over confidential materials

Whoa Alito just spoke over Roberts.

The CJ called on Sotomayor and Alito plowed ahead.

Sotomayor getting precise on the standard. Why not call it "heightened need"?

A: problem with DOJ language and application -- you don't need it while in office? no, we do. fading of memories, loss of docs, etc.

A: delay here is same as absolute permanent immunity for the president and others (given statutes of limitations)

A: we've already lost 9 months of time here given all the litigation

Kagan: case-specific approach to limit harassment. Sekulow says any subpoena undermines the president. What's your answer to that?

A: mental distraction notion is "completely speculative". Not based on any actual Article II burden in Clinton v. Jones. And wrong to think even a categorical rule would provide comfort to a president.

Kagan: what if they really mean "political undermining"?

A: no bad faith in our subpoena.

Kagan: Sekulow says you've shown bad faith by lifting language of House subpoenas

A: yes, we were looking at same issues, so not unusual to copy the language. Nothing sinister.

Gorsuch: what's the diff between your standard and Francisco's?

A: sequencing of the showings. DOJ says prosecutor needs to START in federal court that there's enough of a basis for the subpoena; NY says it's the president who has to show why the request (after it has been made) impacts his job negatively

Gorsuch: so agree on most everything except who bears the burden?

A: pretty much, yes, at least in terms of DOJ's position.

An aside: Gorsuch has been asking fair and really good questions all day.

Kav: what about time and energy distraction on a president, ala Breyer in Jones?

A: yes, that too. but it's a matter of degree.

Kav: distinctions from Jones civil/criminal; federal/state

A: potentially thousands or many more private litigants not bound in way prosecutors are

Dunne: same analysis applies btw fed and state prosecutors, case-specific.

Nixon and Clinton: sep of powers. Here: balancing police powers of states vs. Supremacy Clause.

Roberts: how do you assess the burden on the presidency? "I've got this pandemic thing...many presidents have a pretty long to-do list"

Dunne: court already decided can't shield from any kind of distinction.

Roberts: that was civil.

Dunne: is criminal really more demeaning? Clinton involved sexual harassment.

Thomas: give me a couple specific examples of a burden that actually counts

Dunne: hypothetically, look at Clinton analysis: appear and testify at trial or asked to show up for depositions. Those are burdens.

Alito: did the Court's prediction come true in Clinton v. Jones that it wouldn't make much of a change in nature of presidency?

A: yes, it did.

Sotomayor back to standard q: what are you conceding?

A: subpoena implicates potential burdens, but doesn't necessarily pose burdens to presidential duties.

Kagan: on state vs. federal prosecutors, is there really a difference hinging on the Supremacy Clause?

A: not so much, 10th am gives state prosecutors license to prosecute. And a lot is *only* prosecutable by the states.

Dunne: aside from statute of limitations concerns (main one), risk of waiting means risk of losing witnesses and documents is real. AND other third parties could put them above the law, too.

Dunne wrap-up: no burdens on presidential duties, back to 1807 courts have allowed prosecution. No need to undermine federalism or put presidents above the law.

Sekulow rebuttal: different stigma to criminal process than civil (Trump vs. Clinton). What's happening here: presidency is being harassed and undermined. Copying of subpoenas speaks to that. Framers saw this coming and sought to protect presidents from it. END