On May 12th, 2020, the Supreme Court heard 2 major cases about whether President Trump can keep his financial records secret from Congress and NY prosecutors. The Court made history by releasing live audio at the time of the hearing. Neal and George Conway provided live text commentary during the hearing.
Listen to the hearing here.
00:32:08 neal katyal: Good morning. Thanks for joining on this historic day. George and I are thrilled to have you, as we listen in, live, to the Supreme Court’s oral arguments. These are among the most important cases on presidential powers, ever – and it is not an exaggeration to say that historians for decades and even centuries will be studying what happens today.
00:32:19 neal katyal: George and I want you to listen, so we are going to type our comments instead of breaking in with audio. After the 2 hours of arguments, we’ll do an on camera reaction.
Supreme Court arguments are generally one hour long, but today, we have 2 sets of cases, so approximately 2 hours. We will hear first from Patrick Strawbridge, one of President Trump’s lawyers. Then from Jeff Wall, the one politically appointed Deputy Solicitor General. Then we will hear from Doug Letter, who represents the U.S. House of Representatives.
That’s the first case. In the second, we’ll hear from Jay Sekulow, another one of the President’s lawyers, and Noel Francisco, President Trump’s Solicitor General. On the other side will be Carey Dunne of the New York District Attorney’s Office.
00:32:25 neal katyal: Strawbridge has just started
00:34:57 George Conway: Good point by Justice Ginsburg—this is the point about it being unprecedented
00:35:17 George Conway: It’s unprecedented because of Trump’s resistance, not because of the requests by Congress.
00:35:18 neal katyal: y
00:35:48 neal katyal: George, you were talking a moment ago about what the precedent was — going back to President Johnson and Carter — can you mention that for folks?
00:36:45 neal katyal: The cases today on four subpoenas issued by House Committees to financial institutions for President Trump’s financial records. The Mazars case deals with a single subpoena issued by the House Oversight Committee to Mazars for eight years of financial and accounting information for work performed for President Trump and several of his business entities. This subpoena arose from a hearing in which Michael Cohen testified before the Committee that the President may have inflated and deflated his assets in multiple financial statements in order to secure a bank loan and reduce his real estate taxes and insurance premiums. The Deutsche Bank case relates to three other subpoenas.
00:36:50 George Conway: His answer is don’t pay attention to the recent stuff and the presidents cooperated. But if the law is as Trump says, why weren’t there prior challenges.
00:37:04 George Conway: (The second sentence is my point)
00:37:05 neal katyal: Justice Thomas is now asking questions. He rarely does, but in this new format, he does
00:37:52 George Conway: Important and necessary concession by Trump’s lawyer: Congress has the implied power to subpoena things.
00:37:54 neal katyal: Normally oral argument is a scrum with the Justices sometimes talking over one another. Justice Thomas has said he doesn’t like that. For the May sitting, due to COVID, the Court has dispensed with in person arguments, and each Justice takes their turn answering questions
00:38:11 George Conway: He’s trying to say it’s not that broad.
00:38:39 George Conway: It’s great to hear Justice Thomas asking questions.
00:38:48 George Conway: The Chief Justice is being tough on time.
00:38:52 George Conway: 3 minutes a shot.
00:39:25 neal katyal: Not surprising that Justice Breyer goes right to Watergate. It’s a foundational event for him, and for the Supreme Court — when it ordered 8-0 the documents to be turned over
00:39:28 George Conway: Very sharp and precise questions by Breyer.
00:40:04 George Conway: Usually his questions are long, like this one, but not always this foused.
00:40:07 George Conway: focused
00:40:39 neal katyal: Breyer has been focused on these questions for 2 decades plus — including in his separate opinion in the Paula Jones case
00:40:50 George Conway: Good point—why should the president get the same protections for personal stuff as he would for official stuff.
00:41:39 neal katyal: Alito is typically one of the very best questioners I’ve ever encountered.
00:42:11 George Conway: This is the first question that I think seems to favor the president. But you can’t draw conclusions from one question.
00:42:30 neal katyal: The Chief Justice, I agree George, is really being tight on time. We are only at 10:14 and already on Justice Alito. It’s incredibly fast moving today compared to earlier last week and yes.
00:42:34 neal katyal: yesterday
00:43:11 neal katyal: If folks are having trouble reading George and I due to other comments, swipe down on the comment stream! It’ll fade down to the bottom.
00:43:59 George Conway: What’s interesting about this discussion—the president has complied with financial disclosure requirements of the sort that he is now suggesting can’t be enacted by the Congress.
00:44:55 George Conway: Justice Sotomayor raising another, different separation of power issue—whether courts can tell Congress what to investigate.
00:44:58 neal katyal: Supreme Court arguments often revolve around history, we are seeing that in full force today
00:45:09 George Conway: Are the courts really going to decide what Congress can investigate?
00:46:11 George Conway: In essence, that’s Trump’s argument—courts have to police Congressional subpoenas to go too far from some legislative purpose.
00:46:52 neal katyal: Justice Sotomayor is the only Justice who served as a trial court judge. She’s often very focused on the facts, and distinctions with other prior cases
00:46:58 George Conway: Which is seemingly inconsistent with precedent saying courts must presume that the legislator is acting within bounds. (You’ll hear Congress’s lawyer make that point.)
00:47:09 George Conway: The House’s lawyer.
00:47:27 George Conway: You worked for Justice Kagan!
00:47:34 neal katyal: Justice Kagan is, like Justice Alito, a ferocious questioner. She doesn’t ask many questions, like Alito, but they are always to the direct point.
00:47:53 neal katyal: Here she goes, zeroing in on George’s point: the precedent is not at all what you are saying because Presidents turn over the information
00:48:16 George Conway: Very incisive question by Justice Kagan.
00:48:39 George Conway: These are questionable historical statements.
00:48:45 George Conway: By Trump’s lawyers.
00:49:10 neal katyal: Boy over claim by Trump lawyer “these subpoenas fail every” test of government need/authority
00:49:17 George Conway: There were broad requests by the Senate with respect to Clinton and Whitewater.
00:49:31 neal katyal: Kagan obliquely referencing whitewater — and the precedent there
00:49:32 George Conway: And Kagan knows that—she was in the Clinton White House counsel’s office.
00:49:52 neal katyal: And she zeroes in on the imp point that these aren’t presidential documents — they are about his private dealings.
00:49:54 George Conway: Right—she knows very well how broad the requests were in the 1990s
00:50:11 neal katyal: She served as the Domestic Policy Council Adviser at the White House for Clinton during all of that
00:50:14 George Conway: Kagan was also the White House counsel attorney in charge of dealing with Clinton v. Jones.
00:50:48 George Conway: Gorsuch is key to whether this will be a blowout of the Trump position.
00:50:55 neal katyal: George, by the way, ghostwrote the Paula Jones brief that successfully led the Court unanimously to say Clinton had no evidentiary privileges
00:50:55 George Conway: Votewise.
00:51:33 George Conway: Kagan’s papers on the Jones case are in the Clinton library—I”ve read them!
00:51:50 neal katyal: The past cases in this area have been unanimous. In Clinton v. Jones, the Paula Jones case, it was unanimous—including 2 Justices who Clinton put on the Supreme Court (RBG and Breyer)
00:51:58 George Conway: Gorsuch’s question seems favorable to the House.
00:52:09 George Conway: Questions.
00:52:14 neal katyal: In Nixon v. US, the Nixon tapes case, Nixon had put 4 Justices on the Court. 1 recused. The other 3 ruled against Nixon
00:52:53 neal katyal: George, so far have you heard much sympathy at the Court for Trump’s legal position?
00:54:21 George Conway: Justice Kavanaugh’s first question is neutral—what are you saying Congress has to do to get stuff.
00:54:46 neal katyal: Hard for Trump’s lawyer to say these subpoenas invalid and politically motivated. The trump administration has been going to court in so many cases saying federal courts can’t second guess the motivations of govt officials — like in the muslim ban cases I argued at SCOTUS
00:55:28 neal katyal: Interestingly, the Supreme Court itself added a question basically to the case, asking if the Court had the power to decide a dispute between the Executive Branch and Congress. Those briefs came in last Friday (4 days ago), and they all agreed that the court had the power.
President Trump wants them to hear the case because he is worried Mazars and Deutche Bank otherwise would turn over the information. So he needs the court to come in and try to protect him. Congress wants the court to step in, not for this case, but for others where they’ll need a court to force the Executive Branch to turn over requested information. So you have an unusual coalition of short and long term interests that have led both parties in the case to this result. And you’ve also got the fact that it’s tough for the Court to duck this issue (even if it would otherwise like to). The law is quite strong that the court needs to resolve such disputes, just as it did in the Nixon tapes case in 1974.
00:55:36 George Conway: A good question by Kavanaugh on the practicalities: whether Deutsche Bank and Capital One, the banks; and the accountants, Mazars, will comply with the subpoenas. Answer yes.
00:55:38 neal katyal: We heard nothing really about that
00:55:45 neal katyal: Jeff Wall, Deputy SG now u
00:55:46 neal katyal: up
00:55:56 George Conway: Now the deputy Solicitor General is up, representing the USA as amicus curiae.
00:56:06 neal katyal: Jeff was my line attorney when I wain the Solicitor General’s Office. He’s an extraordinary oral advocate
00:56:35 neal katyal: Jeff is arguing the full house has to authorize the subpoena, not a committee. This is a weird argument
00:56:47 George Conway: The US is taking a slightly different position. They are not making quite as broad an argument as to how far the House can reach documents. But the government is arguing a narrow ground for the Court to affirm.
00:56:57 neal katyal: The Constitution says the House is to make its own rules. Very odd to think the Court can second guess that given the clear textual command
00:57:14 George Conway: Good question by the Chief: Are the courts really able to probe into why Congress is doing what it’s trying to do.
00:57:55 George Conway: Back to the top of the order.
00:58:03 George Conway: Back to the top of the order.
00:58:07 neal katyal: Jeff’s distinction is very thin. He says there is a mismatch between subpoena and asserted purposes, and he’s not asking to second-guess a determination by Congress. But that’s exactly the argument Trump rejected in the travel ban and other cases, where we and others pointed out the mismatch
00:58:42 neal katyal: Same argument, different day. Except here the key principle at stake goes to the heart of government, as George has pointed out, whether our chief executive is above the law
00:58:56 George Conway: These arguments are very weak. It’s very easy to think of statutory responses to these current circumstances.
00:59:22 neal katyal: “Paper thin,” no “Specifics”? That’s exactly the argument Trump’s challengers have made time and again, and what Trump’s lawyers have consistently rejected
00:59:28 George Conway: This distinction between exposing wrongdoing and finding grounds to legislate is nonsense.
00:59:45 George Conway: And that’s the point Justice Ginsburg is now making.
00:59:58 neal katyal: Justice Ginsburg with a great first question—you have to investigate before you legislate. So clearly stated.
01:00:20 George Conway: I’m thinking of that scene from The Godfather 2
01:00:42 neal katyal: Note for folks new to the Court: the Justices questions don’t often predict how they are going to vote. They often ask tough questions of both sides.
01:00:56 neal katyal: Sometimes you can read the tea leaves, but sometimes you can’t.
01:01:03 George Conway: The hearing. Congress was investigating wrongdoing by the Corleone family!
01:01:31 George Conway: What better way to figure out whether to pass organized crime legislation?
01:01:50 neal katyal: Jeff Wall is saying Congress can’t legislate as much against the President, and there is a big risk of harassment. But on the other side, there’s a big risk that the public needs to know the truth about our highest officials. He says not a word about that. hmmm
01:02:10 George Conway: Exactly, Neil.
01:02:17 neal katyal: Very hard to legislate in the shadows without the facts
01:03:19 neal katyal: George wrote an excellent piece about this all a few days ago if you’ve not read it https://www.washingtonpost.com/opinions/2020/05/08/george-conway-why-trump-will-lose-court/
01:03:38 George Conway: My piece was directed more specifically at the second case we are going to hear
01:03:50 George Conway: But you’ll notice that there’s great thematic overlap.
01:04:55 George Conway: This question specifically about the House Intelligence Committee by Justice Alito points to a weakness in Trump’s position.
01:05:12 neal katyal: The strategy here is to try to argue that this particular subpoena set is invalid, and trying to say that’s all the case is about
01:05:44 neal katyal: That’s often what you do, as the old aphorism goes, if the law is against you, pound the facts. If the facts are against you, pound the law.
01:06:05 George Conway: The financial disclosures are a very weak spot for Trump. He complies with those disclosure requirements.
01:06:11 George Conway: Hasn’t challenged them.
01:06:11 neal katyal: So far not hearing much sympathy for Trump’s view on either the law or facts despite Jeff’s excellent oral advocacy
01:06:19 George Conway: Totally agree.
01:06:35 George Conway: Skepticism from Alito there.
01:07:13 George Conway: Good point by Sotomayor—the SG’s narrow standard still requires courts to review Congressional motivations skeptically.
01:07:18 neal katyal: Reminder that If folks are having trouble reading George and I due to other comments, swipe down on the comment stream! It’ll fade down to the bottom.
01:07:45 George Conway: Sotomayor making a good defense of the subpoenas going back a number of years.
01:08:03 neal katyal: Often times, oral argument is important not to hear the advocates’ answers, but because the Justices are talking to one another, through the vehicle of oral argument. Justice Sotomayor is doing a bit of that right now.
01:08:19 George Conway: The implicit backdrop of the questioning for the last 5 minutes is the specter of a president having financial entanglements with a hostile foreign power, Russia.
01:08:51 neal katyal: Excellent point George, that’s exactly right. The Court may not spell that out in so many words, but that’s the specter in their minds
01:09:08 George Conway: Alito clearly thinking about it.
01:09:16 George Conway: And certainly Sotomayor.
01:09:28 neal katyal: That’s one of the interesting things about the Court — they have to think about and evaluate the range of possibilities in future years. As Chief Justice Marshall said in McCulloch, the Constitution was intended to endure for ages to come
01:09:30 George Conway: And now Kagan going back to a case she lived through as a lawyer, Clinton v. Jones.
01:09:47 George Conway: She’s making a point that Wall is standing the principle behind Clinton v. Jones on its head.
01:09:53 neal katyal: Yes, and she’s a really close reader of texts and precedent.
01:10:03 George Conway: President gets less protection when materials are personal as opposed to official.
01:10:14 George Conway: Kagan powerfully making this point.
01:10:22 neal katyal: She and Alito are just so good at this.
01:10:31 George Conway: Yes, they are.
01:10:44 neal katyal: I don’t hear an answer by Jeff Wall.
01:10:50 George Conway: There is no answer.
01:11:02 George Conway: Jeff’s doing the best he can.
01:11:23 neal katyal: She’s just devastating. As an advocate, this is what I always fear.
01:11:34 George Conway: The president gave a blood sample to the independent counsel in 1998.
01:11:35 neal katyal: Jeff is resorting to generalities. No substance here.
01:11:47 George Conway: Referring to Clinton.
01:12:17 neal katyal: I think that interchange will be devastating to Trump unless something new is presented to shore this up. Gorsuch giving a chance right now to Wall to modify answer
01:12:24 George Conway: yes.
01:15:08 George Conway: It’s hard to see the Court buying into a legal regime that puts courts in the position of parsing congressional resolutions to decide what is enough and not enough to invoke a potential legislative purpose.
01:15:08 neal katyal: Wall now back to the argument that the whole Congress has to authorize the subpoena. For a supposedly textualist President who follows the text of the Constitution this is totally baffling. The text says otherwise. This is just made up constitutional law
01:15:50 George Conway: You’re referring to the fact that the Constitution allows each house to prescribe its own rules?
01:16:18 neal katyal: Did I hear this right George, Jeff Wall now admitting that the Watergate subpoena was like this one, and he’s basically saying Congress couldn’t do that?
01:16:29 George Conway: Let’s see how the tone and direction of the questions changes for the House lawyer.
01:16:32 neal katyal: Doug Letter now up—he’s the House’s lawyer.
01:16:37 George Conway: I think so.
01:16:53 neal katyal: He’s very clever, as you could just see right now — “Mr Wall referred to the wrong pages of our brief.”
01:17:17 George Conway: Letter is an extremely experienced appellate lawyer—argued appeals for the DOJ for how many years?
01:17:36 neal katyal: To return to the end of Jeff’s argument and my question to George, this is really quite something. A top Justice Dept official is now saying that Congress was wrong in Watergate. If I heard that right, it’s, um, astounding.
01:18:04 neal katyal: Letter — about 40 years experience. I’ve argued cases against him and with him, he’s also excellent. A career DOJ lawyer for decades
01:18:32 George Conway: Right about Watergate—the inquiries by the Senate committee weren’t for impeachment purposes, since that was the purview of the house.
01:18:39 George Conway: So it had to be legislative.
01:18:41 neal katyal: The Court this year has given advocates 2 minutes to talk before interrupting. That was new, even before Covid. Normally people have a script. Doug came in with a rebuttal of Jeff Wall, interesting strategy.
01:18:56 George Conway: And no one challenged what the Senate was doing in 1973.
01:19:21 George Conway: Yes, I was going to say. Letter went in as though it was his rebuttal time.
01:20:26 George Conway: Chief being evenhanded in his questioning. What’s your test that keeps this from obstructing the work of the executive branch.
01:20:41 neal katyal: The Court often worries about the limits of each side’s position. We are hearing that now. Trump’s position may mean Congress can’t ever subpoena or investigate fully. But House’s view might mean a President fan be endlessly harassed
01:21:03 George Conway: Thomas is wondering where the source of the legislature’s investigative power comes from — asked this of both sides.
01:21:11 George Conway: He’s often the most historical minded of the Justices.
01:21:17 neal katyal: The Chief Justice is among the most balanced questioners I’ve ever come across. I find him the hardest to predict on the basis of his questions. He was an extraordinary Supreme Court advocate himself, and brings that skill to the bench.
01:21:20 George Conway: But the answer is clearly that it’s inherent.
01:22:08 George Conway: Parliament did it.
01:22:26 neal katyal: As the House explains, even in 1792, the investigated General Arthur St. Clair’s disastrous expedition to the Northwest Territory, with power “to call for such persons, papers and records as may be necessary to assist in their inquiries.” 3 Annals of Cong. 493 (1792)). It did so with the support of “Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work.”
01:23:44 neal katyal: I think Letter’s historical answers weren’t crisp. The Power of Congress to investigate goes back, even before the founding. . “Investigations by colonial legislatures date back at least to 1691[.]” Telford Taylor, Grand Inquest: The Story of Congressional Investigations 11 (1955).
01:23:50 George Conway: These lines of questions show how this first case differs from the second. There are questions about the nature of congressional power and how Congress exercises it.
01:24:11 George Conway: These questions aren’t present in the second case, which is all about the presidency.
01:24:34 George Conway: Yes, I was surprised Letter didn’t have answers to those questions in his mind.
01:24:48 George Conway: They were obvious questions—how long do these practices go back.
01:25:40 George Conway: Interesting—a seemingly skeptical question by Breyer.
01:25:45 neal katyal: Justice Breyer is famous for long questions. He tries to tell the advocates what concerns him. This is an excellent illustration
01:25:57 George Conway: But he asks these questions—what’s your response to the other side.
01:26:30 neal katyal: Yes, a lot. He wants to know the limits of someone’s position, and how to answer the arguments on the other side, even if they weren’t fully voiced orally by the advocates on the other side (like here)
01:26:37 George Conway: Yep.
01:27:16 neal katyal: So far I think the argument has been going a lot better for the House. That’s no fault of the excellent advocacy by Trump’s lawyers, it’s rather just a reflection of the underlying weakness of the legal position
01:27:23 George Conway: I agree.
01:28:11 George Conway: I do think that this argument confirms my instinct going in that Trump is more likely to pick up votes in this case than in the second, although I think he’s going to lose both.
01:29:00 neal katyal: Yes, I think that’s right. There is some underlying hostility to the House, and that might impact things.
01:29:03 George Conway: It’s so unusual to see the Justices worrying about time limits for their questions!
01:29:06 neal katyal: Not to sound hokey, but this is America at its best — having reasoned argument, in a court of law, instead of the ugly alternatives.
01:29:42 George Conway: I agree. Too many people like to assume people vote the way they vote for political reasons.
01:29:57 George Conway: assume justices vote
01:30:17 neal katyal: Letter now making a very broad argument, saying all subpoenas ok. This is surprising.
01:30:22 George Conway: They may have philosophical differences, but they are trying to get to the right answers.
01:31:15 neal katyal: Letter now walking back a bit, referring to constitutional privileges. Wise move
01:31:38 George Conway: Letter’s answer here is important: There are specific protections designed to protect the presidency.
01:31:42 neal katyal: As I said, Alito is an outstanding questioner. He exposed some weakness in the House position. Letter took a while to get there, but he did.
01:32:16 George Conway: Alito cross examines advocates like a good trial lawyer.
01:33:17 neal katyal: Yup. I’m always so impressed with his ability to zero in on a weakness
01:33:56 neal katyal: That’s important, not just for the case at hand, but also because the Justices have to write an opinion that will govern future cases. What he and the others doing (like Sotomayor right now) is all about that
01:36:08 neal katyal: Even though this is a telephonic argument, something the Court isn’t used to, this is going really well for the advocates and the Court.
01:36:19 George Conway: Right—they are wondering whether they are letting a horse out of the barn for the first time but the historical fact is they wouldn’t be.
01:36:37 neal katyal: Justice Kagan dives right into the weakness of Letter’s position, in the answer to Chief and Alito.
01:37:28 neal katyal: Letter with the bang up right answer—this can’t interfere with the President because these documents aren’t held by him, but 3d parties, that he hasn’t even seen.
01:37:31 George Conway: This exchange between Kagan and Letter is so key.
01:37:39 neal katyal: exactly
01:38:11 neal katyal: So far 3 of the 4 most impt moments in my view have been Kagan questions. The other by Alito (picking up on Chief Justice).
01:38:37 George Conway: If the bottom line concern and question is whether the balance of power between the executive and legislature is being affected, the answer is there’s no argument being made, and no argument possible, that it is, because these subpoenas don’t burden Trump. Which is the Paula Jones point.
01:38:41 neal katyal: The House brief on precedent is devastating, and Letter referring to some of it now.
01:38:46 neal katyal: Washington turned over info
01:38:50 neal katyal: Andrew Johnson turned over
01:38:53 neal katyal: Nixon turned over
01:38:57 neal katyal: Carter turned over
01:38:59 neal katyal: Clinton turned over
01:39:03 neal katyal: On and on.
01:39:12 neal katyal: “History really matters here” Doug Letter says.
01:39:44 neal katyal: Gorsuch picking up on Chief Justice/Alito—what’s your limiting principle?
01:39:58 George Conway: Gorsuch question invites an answer by Letter about the factual bases for investigating Trump.
01:41:25 George Conway: There are serious concerns that the Trump Organization engaged in money laundering.
01:43:01 neal katyal: And money laundering was part of what Congress Comte said in these subpoenas
01:44:23 neal katyal: The Chief Justice and Justice Kavanaugh vote together a lot, more than 90% of the time. In Kavanaugh’s question, you hear him echoing the Chief — they have very similar approaches to the law.
01:45:03 neal katyal: Letter picking up on what Justice Ginsburg said earlier, you have to investigate before you know what you might legislate
01:45:54 neal katyal: Finally letter says the imp point — these aren’t cases about Executive Privilege, they are private biz records from before Trump was President.
01:46:26 neal katyal: This has been one very frustrating thing about Trump’s litigating position — he claims exec privilege powers but never actually invokes them because they are sure losers
01:47:19 George Conway: Nice point there by Letter, pointing out that the immunity case law that led to Jones v Clinton relied on the fact that there was the potential for legislative oversight to keep the president from doing things people might have wanted to sue him for (but couldn’t because of immunity)>
01:47:40 George Conway: Clinton v Jones
01:47:53 neal katyal: It’s not clear to me what Letter is saying about relevance and ACA. Is he embracing a relevance test?
01:48:51 neal katyal: Now on to a second round of questions by each Justice. In normal arguments, the Justices just jump in. But due to COVID, the Court is going sequentially in order of seniority. Far more orderly, but it also means that the questioning lines get interrupted
01:49:29 George Conway: The questioning seems to suggest that the Court is going to have to say that there are some limits to what Congress can do.
01:49:53 neal katyal: Yes, and if so, it might turn on this “relevance” test that Letter seemed to be embracing at the end.
01:50:32 neal katyal: Or it could be that, like often times, the Court worries about the extreme hypotheticals, but realizes its too hard to write an opinion to safeguard against it. “That opinion won’t write” is something that happens.
01:51:48 neal katyal: Excellent answer by letter to Thomas just now. Thomas says the aggregate number of subpoenas might overwhelm president and he can’t do job. Letter concedes exactly that. Excellent advocacy.
01:52:17 neal katyal: Letter returns to main point — not a single thing is required by the President as a result of these subpoenas
01:53:35 neal katyal: Breyer now picks up on that. Says docs go to Trump org, a lot of information, and wouldn’t Trump have to know what is being turned over? Wouldn’t that take time? Again, Breyer raising to the advocates his concerns. He raises Sen. McCarthy example.
01:54:13 George Conway: The justices are concerned not just about this case, but the next case, and the case after that, as they should be.
01:54:25 George Conway: And Letter keeps trying to bring them back to this one.
01:55:02 neal katyal: Exactly. Some will say this shows Breyer leaning to vote for Trump. Perhaps. But it’s consistent with his style to ask the hardest question and the one that worries him. Letter reminds Breyer that the issue isn’t present here — there is no privilege claim
01:56:26 George Conway: Also remember that Breyer wrote separately in Clinton v. Jones, expressing concern about future cases and the burdens they might present to the presidency.
01:56:29 George Conway: So he’s on brand herel
01:56:31 George Conway: here.
01:56:59 neal katyal: Yes exactly, Breyer has been concerned about this for decades. The question is whether this case truly implicates that concern
01:57:23 George Conway: Right. He wrote separately in Clinton v. Jones, but voted to allow the Jones case to proceed.
01:58:03 neal katyal: Note to watchers: the Justices are almost done with the first case, and then they’ll jump into the second one, from New York. We will have a little bit left from the House, and then a rebuttal by Trump’s lawyer, in the first case.
01:58:15 George Conway: Letter is at his strongest when he goes back to the history of presidents producing materials.
01:58:34 neal katyal: Exactly. That history is devastating to Trump.
01:58:46 George Conway: In this case *and* the next one.
02:01:14 neal katyal: Kavanaugh making the point Clinton did in the Jones case, that once the Court writes an opinion saying the President can be sued, everyone will follow it and it will paint a target around the President for the future
02:01:43 neal katyal: Letter nicely makes exactly that point — saying that was the argument in Clinton v Jones, and the Ct rejected it, saying they could police abuse on a case by case basis.
02:02:40 neal katyal: Letter says if it gets abusive in the future, contrary to our past, the courts can then take care of it
02:03:29 neal katyal: Excellent advocacy by Wall and Letter, and really good questions, so far. We’ll now get a rebuttal from Trump’s lawyer.
02:04:06 neal katyal: Smart for Trump’s lawyer Strawbridge to say House’s theory is unlimited.
02:04:26 neal katyal: Not so good to go to the medical records hypo — that seems pretty easy to distinguish.
02:05:53 neal katyal: The second set of arguments of the day are starting now in Trump v. Vance, a case challenging a New York grand jury subpoena for President Trump’s financial records. This case centers around an investigation that the District Attorney of New York County has opened into the business dealings of President Trump, including certain payments made in 2016 to Stormy Daniels. As part of the investigation, the District Attorney served a grand jury subpoena on the Trump Organization that demanded documents and communications concerning the President. A dispute arose between the Trump Organization and the District Attorney over the subpoena’s scope, and the District Attorney subsequently issued a grand jury subpoena to Mazars, President Trump’s accounting firm, seeking a wide array of President Trump’s financial records, including his tax forms. (Reminder that George and I wrote friend of the court briefs in these cases).
02:07:24 neal katyal: The President challenges this subpoena by making the sweeping claim that the President is absolutely immune from state criminal process while in office. Trump argues that a president will not be able to fulfill his constitutional duties if he is distracted by any type of investigation or legal process. He argues that this is particularly true when the legal process comes from the states because state prosecutors should not possess the power to debilitate the federal government by distracting the Chief Executive with harassing investigations.
02:07:37 neal katyal: Vance counters that absolute presidential immunity from state criminal process would run entirely counter to the Court’s precedent, which required President Clinton to give sworn testimony for a civil case while he was in office and required President Nixon to comply with a subpoena to turn over recordings of sensitive presidential communications. Prohibiting investigations of the president would also prevent the President and those around him from being held accountable for wrongdoing.
02:09:02 neal katyal: We are restarting IG live, you’ll need to sign on again due to the 60 min time limit. Please re-sign on!
02:10:04 neal katyal: This is an overly strident way to begin a Supreme Court argument, it’s not powerful. IT’s designed for the media, not the Court
02:10:09 George Conway: Sekulow’s opening seems a little too bombastic for this Court.
02:10:14 neal katyal: exactly
02:10:41 neal katyal: Almost everything he said is easy to answer because it is so over claimed. It works on FOX but not in SCOTUS
02:10:49 George Conway: Correct.
02:10:59 George Conway: Also, it sounds like he’s shouting at the Court.
02:11:31 George Conway: Great question by the Chief.
02:11:33 neal katyal: If folks are having trouble reading George and I due to other comments, swipe down on the comment stream! It’ll fade down to the bottom.
02:11:41 George Conway: Sticking a needle in the balloon.
02:11:50 George Conway: <pop>
02:12:06 neal katyal: Totally, I didn’t see exactly where the Chief was going until you said it George.
02:12:12 George Conway: This case is a lot easier than the first one.
02:12:37 George Conway: “Criminal process against the president”—it’s not clear what that even means here.
02:12:43 George Conway: The President wasn’t subpoenaed.
02:13:01 neal katyal: The Chief is so good at figuring out the logical result of an advocate’s position. Before every argument, I spend an uninterrupted 24 hours thinking about the contours of my argument, and what the logic of my position means for future cases and hypotheticals.
02:13:09 George Conway: The Chief has it exactly right here. Clinton v. Jones controls.
02:13:45 neal katyal: Yes, the Chief has come out really strong here, picking up on the principles in the Paula Jones case that you successfully won George
02:14:14 George Conway: Sekulow relying on a footnote in Clinton v. Jones, but that was a reference to whether the President could be ordered to show up somewhere to comply with a state subpoena.
02:14:22 George Conway: And here that’s not at issue.
02:14:53 neal katyal: Weird that Sekulow is referring to this history like Adams etc, as that’s precisely what the Court rejected in the Paula Jones case
02:14:57 George Conway: The 2300 DAs argument is so overblown.
02:15:43 George Conway: Virtually every argument Trump makes here has an answer in the Court’s decision in Clinton v. Jones.
02:16:28 George Conway: Nice question about “every man’s evidence” by Justice Ginsburg.
02:16:42 neal katyal: James Wilson at the founding: the President “is placed high … yet not a single privilege is annexed to his character.” 2 The Debates of the Several State Conventions on the Adoption of the Federal
Constitution as Recommended by the General
Convention at Philadelphia in 1787
02:17:20 George Conway: The issue about whether a state court can here a civil case against Trump is before the Court of Appeals of New York, New York’s highest court.
02:17:32 neal katyal: Yes, you’ve been saying George that this case is easier than the first one. I am now really seeing what you are saying. I think both are pretty easy, but so far nothing Sekulow says resonates, given Clinton v Jones
02:17:41 George Conway: *hear
02:17:50 George Conway: Right.
02:18:09 George Conway: The congressional overlay makes the other cases more complex.
02:18:18 neal katyal: Breyer picks up on exactly what George says about Clinton v Jones
02:18:58 George Conway: It’s why I wrote my piece in the Post just about this case. It’s important to distinguish between them.
02:19:11 George Conway: All three cases have common threads. But this case is much cleaner.
02:19:39 George Conway: Sekulow is just blowing smoke about burden and hundreds of prosecutors.
02:19:49 neal katyal: In this case, the information being sought is quite serious—it involves Trump’s payments to Stormy Daniels and Michael Cohen’s allegations about them, and about Trump misrepresenting his finances to tax authorities etc.
02:20:24 George Conway: What’s particularly harmful about this case for Trump is that its weakness might bleed over into the other case when the Court gets to its conference and in writing the opinions.
02:20:35 neal katyal: So if the Court only ruled against Trump in this case (something I don’t think right now is likely, I think he’ll lose both) — it’ll be a serious loss
02:20:55 neal katyal: Sekulow makes a good point about Trump being busy with COVID, and not having time to be distracted
02:21:01 George Conway: I think he’ll lose both. But this case is helping ensure that he’ll lose the first one.
02:21:18 George Conway: The president has time to tweet about Joe Scarborough.
02:21:20 neal katyal: I suspect the New York DA lawyer will have the “but golf” rebuttal to the COVID point
02:21:40 George Conway: But tweeting about cable news hosts, also.
02:23:00 George Conway: The Watergate special prosecutor said that Nixon wasn’t a target—but Nixon was an unindicted coconspirator in the case in which he was ordered to comply with a subpoena.
02:23:03 neal katyal: It’s funny to hear Trump’s lawyer talk about constitutional principles that are nowhere in the text of the document.
02:23:12 neal katyal: Sotomayor just picked up on exactly that!
02:23:13 George Conway: And that’s Sotomayor’s point.
02:23:15 George Conway: Yes.
02:24:31 George Conway: This case could easily go 9-0.
02:24:35 neal katyal: Sotomayor making an impt point — if we are worried about a flood of investigations and litigation—prosecutors are much easier to worry about than private litigants, due to ethics and all sorts of other constraints on them that private litigants don’t ahve
02:25:11 George Conway: Exactly right. One would expect prosecutors to exercise more self-restraint than private plaintiffs.
02:25:19 neal katyal: At this point, I agree George with your 9-0, so far I’ve not heard a thing that helps the President. But I’m curious what Justice Alito will say.
02:25:45 neal katyal: Justice Alito also is someone willing to go out on his own, and dissent 8-1.
02:25:51 George Conway: True.
02:26:13 George Conway: The point about there being one president is one I turned around in my Paula Jones brief.
02:26:34 George Conway: He can delegate his powers, and does, unlike members of Congress and judges.
02:26:49 George Conway: Which is why presidents can play golf and tweet.
02:27:00 neal katyal: I’ve said many times that I think Justice Kagan will be President Obama’s most enduring legacy, and she’ll be studied hundreds of years from now. Her crispness, logic, and ability to explain her views to non lawyers are all on display right now.
02:27:17 George Conway: The other point—the more important one—is the one Justice Kagan is making. The president is not above the law.
02:27:23 neal katyal: Yes exactly George
02:28:25 neal katyal: Gorsuch now picking up on George’s point about Clinton v Jones. He’s like Justice #5 to ask this question today
02:28:31 George Conway: Gorsuch seemingly not buying Sekulow’s attempt to distinguish Jones.
02:29:21 George Conway: Now Sekulow is trying to bring the other case in to help him.
02:29:44 George Conway: That’s not helpful to the other case, but Trump has to win all three.
02:30:17 George Conway: Trump is not going to be happy if he loses either of these cases. 1 for 2 is a big loss fo rhim.
02:30:20 George Conway: For him
02:30:27 George Conway: But I think he’s going to lose both.
02:30:42 George Conway: Justice Kavanaugh—also skeptical.
02:30:49 neal katyal: So far Sekulow hasn’t moved the needle at all, but folks remember we’ll be hearing from Noel Francisco, the Solicitor General.
02:31:04 George Conway: I was going to ask you, Neal.
02:31:21 George Conway: Why do you think Noel chose to argue this case and not the other one.
02:31:29 George Conway: It was his choice, of course.
02:31:38 George Conway: He could have taken the first one and given Jeff the second.
02:32:23 neal katyal: There are 2 political appointees in the SG’s office, the SG and the Principal Deputy. Noel is the SG, Jeff is Principal Deputy. Yes, the SG gets to decide (though the President could weigh in of course). I’m not at all sure. Perhaps the SG wanted to go last — and the Congress case was first.
02:32:46 neal katyal: Or it could be that Trump views this case as a greater threat — both legally and because of the underlying information being sought.
02:32:52 George Conway: Oooh interesting point—Kavanaugh says that Sekulow’s position aligns more with Breyer’s separate concurrence in the Jones case, and not with the majority opinion joined by the other 8.
02:33:35 George Conway: Excellent question by Justice Kavanaugh—what about statutes of limitations.
02:33:39 neal katyal: Yes, I was thinking to myself last night that if I were arguing for NY, I’d say “it’s true that Trump has a little bit of support for his position, it’s just that its in the separate opinion by Breyer that the rest of the Court essentially rejected”
02:33:42 George Conway: SG is up.
02:33:51 George Conway: Again, the D
02:34:02 George Conway: Again, the DOJ’s position is narrower than Trump's.
02:34:16 neal katyal: Interesting he denigrates this as a “local” prosecutor — but in the Congress case — which is “national” — they say Congress can’t do that either
02:34:26 George Conway: Trump is taking an absolute position; DOJ is saying that state prosecutors can proceed if they make a sufficient showing.
02:34:34 George Conway: Let’s see if this flies.
02:34:54 neal katyal: That’s the Trump MO. Can’t indict a sitting President during Mueller, can only impeach. But in impeachment, can’t impeach for Ukraine, can only investigate. Now, can’t investigate the President either.
02:35:02 George Conway: Right.
02:35:24 George Conway: The Chief: What’s wrong with Trump’s position!
02:35:33 neal katyal: Oooh the Chief — so clever. “What was wrong with Mr. Sekulow’s position.” OOff
02:35:44 George Conway: He’s nothing if not clever.
02:35:54 George Conway: Good answer by Noel.
02:36:03 George Conway: You don’t have to get to harder questions.
02:36:06 neal katyal: SG tries to dodge by saying “no need to address it” — but that seems incongruous with the brief
02:36:09 George Conway: Classic answer.
02:36:28 George Conway: But you’re right—it’s completely different logic.
02:36:37 George Conway: And that’s what the Chief is pointing out.
02:36:57 neal katyal: Yeah, the answer sounds clever but I think has dissolved.
02:38:08 George Conway: Good question by Justice Thomas.
02:38:42 neal katyal: Yes, it’s really great to hear him asking questions on the bench. As an advocate, you just want to have a chance to engage every Justice, whether one hostile to your position or not.
02:38:51 George Conway: So Noel is saying there should be simultaneous federal review of state subpoenas.
02:39:05 neal katyal: The States’ Rights President
02:39:25 George Conway: Interestingly, the district court held that the federal courts should abstain from hearing these cases (but then ruled against Trump on the merits).
02:39:56 neal katyal: RBG picks up on the federalism point right away
02:40:09 George Conway: The court of appeals held that the abstention doctrine didn’t apply and just ruled against Trump on the merits.
02:43:28 George Conway: Separately, it’s incongruous that the SG is arguing that in a case involving Trump’s personal conduct with no executive privilege involved, the courts should apply the standard applied in the Nixon case, which involved the president’s presidential papers and a claim of official executive privilege.
02:43:42 neal katyal: Breyer good at pointing out Nixon tapes was executive privilege, but there was a weighing of the need for the evidence. It’s hard to understand though why there would be a special showing when Trump isn’t even claiming Executive Privilege
02:43:53 George Conway: Right.
02:43:57 neal katyal: As usual, George you said it better than me.
02:44:12 George Conway: And remember the key point ….
02:44:25 George Conway: Nixon LOST, 9-0
02:44:32 neal katyal: The special needs there was impt because it involved exec branch materials — none of that is at issue here. This is about Stormy Daniels, etc.
02:44:41 neal katyal: 8-0! Rehnquist recused
02:44:51 George Conway: Right, right, right.
02:44:53 George Conway: 8-0
02:45:19 George Conway: Neal, what do you think of my feeling that this case may bleed over into the other one and poison Trump’s arguments there?
02:45:29 George Conway: Alito.
02:45:30 neal katyal: Weird to think the special needs standard needed for Stormy Daniels payments.
02:45:45 George Conway: I guess that is a special need in a sense.
02:46:29 George Conway: Alito asking the classic SCOTUS how is this all gonna work q.
02:46:29 neal katyal: Great question George, yes, I’ve always felt the cases would be thought of together — but your oped and points today led me to reconsider a bit. It might just be that the Court realizes how extreme and unlimited Trump’s argument is — and would undo the Nixon Watergate precedent — and that will decide both cases.
02:46:49 George Conway: I don’t think this argument is helping Trump in the first case.
02:47:38 neal katyal: I agree, so far it’s all bad for Trump. I’ve not heard much moving of the needle here. If they want legislation to protect the President and enact a specialness standard, go to Congress. Don’t make it up from the Constitution’s text.
02:47:56 George Conway: I think the Court came in thinking the cases were quite separate, but maybe the weakness of the argument may make them think they are more similar.
02:48:12 George Conway: So they may be going in the opposite direction as you, but getting to the same place.
02:48:46 neal katyal: Yes, in the end, the Court has really had as its bedrock the idea that no one is above the law. Once you take that principle seriously, it’s very hard for Trump to win either case.
02:49:03 George Conway: Sotomayor making an excellent point. Applying Nixon makes NO sense here because there is no executive privilege to balance.
02:49:24 neal katyal: Sotomayor returns to the key point — no exec privilege here, this is private activity that predates the president’s taking of office. So why are you citing all of these exec privilege cases.
02:49:42 George Conway: The starkness of this case on the question of whether the president is above the law just kills Trump here.
02:49:47 neal katyal: Yes, George and I just said the same thing. This is incredibly clear in questioning.
02:50:19 neal katyal: SG refers to Breyer concurrence in Clinton v Jones. That got a whole 0 votes besides him
02:50:21 George Conway: This is a fun discussion; I’m glad we did this. Thanks for inviting me, Neal!
02:50:33 neal katyal: Every discussion with you George is awesome. A true privilege
02:50:54 George Conway: Noel doing a good job here but he doesn’t have much to work with.
02:51:57 neal katyal: Sometime the SG has to defend things that are weak, because it’s your duty. Like a law of Congress that’s tough to defend. But here, the SG voluntarily took this position, he’s not a party in the case.
02:52:10 George Conway: Also an excellent point by Kagan. Nixon wasn’t about burden. It was about protecting the presidency by protecting the president’s discussions with his aides, so he can get the best advice.
02:52:54 George Conway: I don’t think it would have gone over well down the street if the SG declined to take a position in this case.
02:52:57 neal katyal: Exactly by Kagan, it follows well from Sotomayor’s point. Even thought SS and EK think quite differently about the law in their approach, they vote together a lot — over 90% of time, just like Chief Justice and Kavanaugh.
02:55:30 neal katyal: George, do you think the burden/distraction point Trump’s lawyers are making would be stronger if it involved a President who wasn’t rage-tweeting at the media/playing golf all the time?
02:56:16 neal katyal: https://twitter.com/jgeltzer/status/1260239420231426048?s=20
02:56:30 George Conway: Important point being brought out by Gorsuch and a big concession by Francisco: A case could involve indictment of a corporation, points out Gorsuch, and Francisco concedes that that could meet the the DOJ’s proposed standard.
02:56:50 George Conway: And this case is about the Trump Organization’s conduct as much as it is the president’s.
02:57:08 George Conway: LOL re your question, Neal.
02:57:17 neal katyal: Justice Kavanaugh says he wants to zero in on Article II interests. He’s a big proponent of Executive Power, so this question is not surprising.
02:57:36 George Conway: In my Paula Jones brief, I had a whole page about stuff President Clinton was doing in the summer of 1996.
02:57:52 George Conway: Stuff that didn’t involve official duties, like campaigning and playing golf.
02:58:09 neal katyal: Oh, I remember.
02:58:12 George Conway: I said, nothing wrong with this, but it shows that the president has time to deal with a civil case.
02:58:18 neal katyal: I was clerking for Justice Breyer at the time.
02:58:36 George Conway: And Justice Scalia asked a question about how we see presidents playing golf and chopping wood, etc.
02:58:37 neal katyal: New York DA now up, Carey Dunne
02:59:11 George Conway: He is a former partner at a big NY law firm and a former president of the NYC bar.
02:59:14 George Conway: He’s terrific.
02:59:17 neal katyal: I hope DA makes the point that 2300 prosecutors can’t investigate Trump. You have to have jurisdiction — and because Trump lived in NY and paid taxes there, they can
02:59:26 George Conway: Excellent point.
02:59:57 George Conway: Dunne now works in the DA’s office.
03:00:15 neal katyal: The 200 years of precedent line is right. Chief Justice Marshall in the Aaron Burr trial in 1807 said the President was amenable to legal process
03:00:43 George Conway: Marshall was riding circuit at a time when the justices spent a lot of time acting as trial court judges.
03:01:04 George Conway: He was the trial judge in Burr’s treason case even though he was Chief Justice.
03:01:23 George Conway: And he okayed a trial subpoena for President Jefferson’s papers.
03:01:35 George Conway: Jefferson was not a happy camper but complied.
03:01:59 neal katyal: CJ zeroes in on difference between the 2 cases, separation of powers v. federalism. Separation of powers involves repeat players and interactions with incentive to work things out (not always so much these days…). CJ says no ongoing relationship with local prosecutors and Exec, so it’s harder.
03:02:34 George Conway: “Riding circuit” was the term used to describe the justices going around hearing cases. They had to go by horseback or stagecoach!
03:02:48 George Conway: *hearing trial court cases
03:02:55 neal katyal: CJ says there should be a higher standard perhaps for local prosecutors. Dunne says yes, should be a higher standard, I think? But now it sounds like he’s saying no, SG approach wrong.
03:03:16 George Conway: Great answer by Dunne.
03:03:31 neal katyal: Ah, he’s now explained — first there has to be a showing of an Article II burden on the presidency — and then there can be a heightened showing required for the evidence
03:03:32 George Conway: You don’t get to us unless the president shows a burden.
03:03:46 George Conway: And then the Chief is saying, what’s the difference in burden with the congressional case.
03:04:00 George Conway: This highlights my point that this case can hurt Trump in the first case.
03:04:11 George Conway: Dunne giving great answers
03:04:15 neal katyal: An objective basis + a reasonable basis relevant info would be generated.
03:04:39 neal katyal: I think this is his first Supreme Court argument, he’s doing really well.
03:05:02 neal katyal: So glad Justice Thomas asked about the harm to Grand jury process, I was wondering about this.
03:05:23 George Conway: This case could easily go 9-0, as I’ve been saying.
03:06:19 George Conway: Dunne’s professionalism and lack of bombast obviously helps the credibility of the DA as a party.
03:06:45 George Conway: Just as Sekulow’s bombast reminded the Justices about the nature of the party Sekulow represents.
03:06:46 neal katyal: Yes, it’s a striking contrast to Trump’s lawyer’s approach
03:06:59 neal katyal: It just sounds like the law. Because it is.
03:07:06 George Conway: ZI think I put that sufficiently felicitously.
03:07:09 George Conway: *I
03:07:40 George Conway: I think Dunne is winning the prize for advocacy this morning.
03:08:19 George Conway: And not just because he has the best case.
03:08:25 George Conway: Which he does.
03:08:26 neal katyal: In a couple of minutes, instagram live will go down for a moment due to the 60 minute IG live limitation. So please hit the “live” button again when you lose the feed, and we’ll be on. Reminder that after the argument is over, George and I will be on camera here for a few minutes breaking it down
03:09:56 neal katyal: I always love advocates who basically say “the best argument on the other side is x, here’s why it’s wrong.” Dunne is basically doing that now.
03:10:26 neal katyal: Dunne makes the 2300 point, and NY special relationship with Trump org. Excellent.
03:11:08 neal katyal: This last set of statements by NY DA is absolutely devastating to Trump. It has decimated the argument on the other side.
03:11:59 George Conway: Dunne is totally in control. The justices clearly like him, and it’s really something that you can tell it over the phone.
03:12:25 George Conway: Breyer—really asking a devastating q to Trump
03:12:32 George Conway: Just let the state courts handle it.
03:13:17 George Conway: Perfect answer by Dunne—President can complain about burden in the ordinary course, not get special immunity
03:13:28 George Conway: He’s sufficiently protected.
03:13:53 neal katyal: This is one of those interesting moments where the fact that the argument is telephonic changes things. If this were an argument at SCOTUS in person, I’d be looking at the body language of the Justices, and if, as I suspect, they are leaning my way if I’m Dunne, I’m going to give short answers and sit down early. But because this case is on telephone, if I’m Dunne, I can’t read the body language, I may not.
03:14:08 neal katyal: Here’s Alito—Dunne will now get some challenge
03:14:13 George Conway: 23 years ago I not only wrote Paula Jones’s brief, but helped prepare his counsel for argument, and that was the point we made to him: Just say the president can make a case by case showing.
03:14:25 George Conway: No need for a blanket rule. He’s protected.
03:14:56 George Conway: Can’t sit down here.
03:15:39 neal katyal: Right, not yet! Not everyone is even done with their questions! But it would really impact the length and substance of the answers.
03:15:48 George Conway: Absolutely.
03:16:29 neal katyal: Alito asking about grand jury secrecy rules, and differences in the states. This may be relevant to the Mueller grand jury case now pending at SCOTUS
03:17:06 George Conway: Alito, of course, is a former US Attorney, so not surprising he is wondering about such things.
03:17:29 George Conway: Dunne has been both a prosecutor and criminal defense lawyer for decades.
03:18:43 George Conway: Dunne making a good point that a lot of leaks aren’t of grand jury material, but of other information.
03:19:31 neal katyal: Dunne so smart to refer to the express finding by the lower court that there was no harassment and a basis for the request
03:19:42 George Conway: Very good of Dunne to point to lower-court finding that there was no evidence of improper harassment by DA
03:20:18 neal katyal: Sotomayor now asking if Dunne is siding with SG. I’m glad about this because the one flaw so far I’veheard in Dunne’s argument is is some fuzziness here. I’m curious for his answer
03:20:18 George Conway: And that DA’s investigation is well-predicated.
03:21:04 neal katyal: Dunne says DOJ calls for a stringent showing that a subpoena is directly relevant to issues at trial. He’s saying it’s a more workable standard, and the trial judge has said under any standard, it’s been met here.
03:21:17 George Conway: But I understand that Dunne is saying you don’t get to a standard of reviewing subpoena because there’s no burden on the presidency
03:22:09 George Conway: This back and forth is all well and good, but at the end of the day, Jones v Clinton will control, and it’s clear that virtually all the justices agree.
03:22:38 neal katyal: Yes, and the Jones case gave credence to the arguments Dunne is making here about the harm of delay
03:23:00 George Conway: Sotomayor is referring to tolling, but there’s no statutory basis for it.
03:23:10 neal katyal: This interchange with sotomayor is really imp, it’s sharpened what the New York position is.
03:23:11 George Conway: And Dunne is making that point.
03:23:27 George Conway: Re tolling.
03:24:01 George Conway: Which is another point from the Jones case: If there’s some sort of problem, Congress can pass a law protecting the president and providing for tolling to minimize the problem.
03:24:25 George Conway: That was a big point in my brief in the Jones case and it was a big point in the Court’s opinion.
03:25:52 George Conway: “A distractible president”—nice.
03:28:46 neal katyal: Gorsuch also confused by NY DA position. I think Dunne really has to clarify
03:31:41 George Conway: Yes.
03:32:38 neal katyal: I’m glad Justice Kavanaugh’s asking about the grand jury context and the Judge Wald opinion. This is also something Dunne hasn’t quite explained yet
03:33:33 George Conway: Good point by Dunne. The issue isn’t whether the subpoena is from a grand jury; it’s about whether there’s a privilege claim.
03:38:22 neal katyal: Chief Justice now authorizing second round of questions
03:38:32 George Conway: Again, the court is more worried about the next case than it is about this one, and the advocate is trying to bring the court back to this one.
03:38:47 neal katyal: Chief Justice raises the distraction point, for a President that has so many duties
03:39:29 neal katyal: Chief says is this worse because it’s a criminal investigation than a civil one in Jones? Dunne gives a good answer — sex harassment even though civil was a very distracting matter.
03:39:44 George Conway: Chief Justice asking this because he doesn’t want to write an opinion that turns the next case into a morass, even if this one is easy.
03:40:16 neal katyal: Justice Thomas asks a great question about what burdens would be sufficient to nix a subpoena
03:40:35 George Conway: Good question by Justice Thomas. What kinds of burdens matter?
03:40:43 George Conway: And the answer, once again is in Clinton v. Jones.
03:40:53 neal katyal: Answer is if the President’s ordered to appear somewhere, or show up for depositions in multiple days.
03:40:58 George Conway: It would be different if the president were asked to show up at a particular time or place.
03:41:15 George Conway: And if the president’s schedule weren’t accomodated.
03:41:16 neal katyal: Dunne smart to go back to this is private conduct and no executive privilege claims
03:41:47 George Conway: That’s his strongest riff.
03:41:57 George Conway: Because it brings the court back to deciding *this* case.
03:42:05 neal katyal: Alito asks a great question as well, was Justice Stevens’ prediction that Clinton v Jones won’t burden the presidency, was that right?
03:42:29 George Conway: As opposed to the hypothetical cases.
03:42:33 neal katyal: Dunne has clearly prepped for exactly this question — hits it right out of the park — studied the facts and what happened
03:42:44 George Conway: And Dunne here making a point I’ve been making for nearly a quarter century!
03:43:09 George Conway: The Jones case wasn’t burdensome for Clinton—what caused him the problem is his decision to perjure himself at his deposition.
03:46:44 neal katyal: Seems to me Dunne has won this case, the question is just what he won. His standard obviously confused the Justices a bit, but perhaps that doesn’t really matter because whatever the standard is, the district court here found it met, and NY — if I am right in my prediction — will get this Trump information. But we’ve not heard Sekeulow’s rebuttal yet...
03:46:53 George Conway: This is a softball question by Kavanaugh, frankly. What are the issues with delay.
03:47:29 George Conway: There’s no doubt the DA wins this case.
03:48:24 neal katyal: Excellent summation by Dunne. He should be very pleased with how he did today.
03:48:26 George Conway: When you’re arguing in the Supreme Court, or any appeal, it’s important to have prepared a set piece for the beginning iand the end, although it’s uncertain whether you get to deliver the second.
03:48:38 neal katyal: Yes, and that set piece was perfect.
03:48:50 neal katyal: Sekulow rebuttal now.
03:48:54 George Conway: And it’s gotta be short and committed to memory
03:49:12 neal katyal: Surprised Sekulow didn’t go right to the confusion in NY standard. That would be his best point
03:49:33 George Conway: Right but he’s trying to say there are concessions that help him.
03:49:55 George Conway: This “same subpoenas” line might make Trump happy, but it’s not compelling.
03:50:12 George Conway: This bombast isn’t going to help either.
03:50:14 neal katyal: This is a weird argument — one might want information for 2 reasons. I find this a bizarre way to end
03:50:20 neal katyal: All 6 advocates did a fabulous job today. It’s a privilege to live in a democracy where this kind of reasoned argument takes place, and where all Americans can hear it. George and I are now getting on camera right here on IG live, so stay on for a few minutes. Both of us are so grateful to you all for watching, and hope all of you stay healthy and safe.
03:50:29 George Conway: Dunne answered the same subpoenas argument crisply—they did it to simplify.