we'll hear argument next in case th six hundred and thirty five donald trump versus cyrus vance mr sekulow thank you mr chief justice and may please the court no county district attorney in our nation's history has issued criminal process against a sitting president of the united states and for good reason the constitution does not allow it temporary presidential immunity is constitutionally required by article two and accordingly the supremacy cla office and are thereby accountable to their local constituencies the decision would allow any da to harass distract and interfere with a sitting president it subjects the president to local prejudice that can influence prosecutorial decisions and the state grand juries who can then be utilized to issue compulsory criminal process in the form of subpoenas targeting the president this is not mere speculation it is precisely what has taken place in this case and with the subpoena we challenge in the argument just concluded we asserted that the subpoenas did not serve a legitimate legislative purpose and they were burned some yet the da copied almost verbatim the house oversight committee subpoena with an additional thirteen words which see the president's tax returns how revealing the exact same language utilized by two congressional committees which subsequently be copied by the new york county district attorney covering the exact same documents and sent to the exact same recipients purportedly for two completely different reasons under article two of the heightened scrutiny standard under nixon the subpoena we challenge today cannot survive as the nd circuit concluded and the d that you don't argue that the grand jury cannot investigate the president do you we did not seek to have an injunction as was a case involving vice president agnew in joining the grand jury we have targeted utilization of the temporary immunity here to the subpoena that's correct well in other words it's ok for the grand jury to investigate except you can't use the traditional and most effective device that grand juries typically used which is the subpoena you can't use a subpoena targeting the president and under his article two responsibilities and the supremacy clause that is our view would be inappropriate unconstitutional so we have not shown to be and i don't i don't understand stand your theory in terms of distraction and all that would seem to go much farther than resisting the subpoena i don't know why you don't resist the investigation in its entirety or why your theory wouldn't lead to that well our position is that criminal process against the president and that's what we're talking with that's what for the court for in the process targeting the president is a violation of the constitution we did not seek to  in clinton vs jones we were not persuaded that the distraction in that case meant that discovery could not proceed and you know there are different things that distract different people but i would have thought the discovery in a case like clinton versus jones even though civil would be distracting as you argue the grand jury proceedings are here well clinton versus jones of course was in federal court this isn't of powers concerns over local prejudice and in footnote thirteen this court said that any direct control by the state court over the president may implicate concerns that are different they need to branch disputes under separation of powers so  president and they took the position that any process against the president would be constitutionally problematic thomas jefferson of course wrote in the letters he had regarding subpoenas that were issued in the byrd trial that allowing local magistrates to bend or about a sitting president from north to south and east to west would interfere with the president's responsibilities and as this court just in the previous argument just stated the burning some nature of this is categorical it's not you can just look at the one subpoena it is the potential for twenty dollars or just one percent of them twenty three dollars d a s issuing process against a president but the concern over interference from our founding with the president's responsibilities was discussed and that's why in the constitution there's process to deal with are the president's documents he is the real party in interest and he has the burden including review with his counsel over any existing privileges and what these documents might entail th of concerns over local prejudice it was different than the separation of powers issues at play was issues involving article two in the supremacy clause so the court said that on pages six hundred and ninety one and footnote thirteen with regard to every one every man's evidence this court has long recognize that the president is not to be treated as an ordinary citizen he has responsibilities he is himself a branch of government he is the only individual that is a branch of government in our federal system so to our position is that the constitution itself both in structure and text supports the position that the president would be temporarily immune from this activity from a state proceeding while he is the president of the united the jones there might be a one million i don't know tens of thousands of people who might bring lawsuits perhaps all of them were unfounded but they could file the paper all right isn't it sufficient just to apply ordinary standards i gather ordinarily any person can get a subpoena can come in and say it's unduly burdensome and what counts is on duly burdensome for a doctor who is in the middle of an operation might be very different from a person who's a salesman and similarly for the president all the factors you raise could come in under the title unduly burdensome so why not just go back but the president say i'll show you precisely how this is burdensome i'm going to spend time effort working all these things out figuring out what they mean etc and if you chose on do burton and lack of connection he was an other was not that's true of every person that's clinton the judge why not the same here justice breyer the hypothetical you just gave i think proves the point by the time you were to prepare review analyze the various requests just in these three cases that we have today shows the burdensome nature and then to require the president of the united states as you raised in your opinion growing opinion in cl versus jones that burden is being met just by us being here but to require the president to have to respond to each and every state district attorney would like he would hire you and he'd hire a lawyer to list what the burdens are that wouldn't take a lot of time and then he wouldn't be burdened because you're going to say what the burdens are and if you're right you win that case they're saying you know this side there are no birds here of the petition appendix there's a list of documents that are extensive you would have to meet with the president of the united states i mean could you imagine just for a moment just prior that you said he let's assume the president were to hire me that i'm going to call the president of the united states justice alito are there at least some circumstances and which the us constitution would permit a local prosecutors subpoena records containing information about something president  of the situation suppose that prosecutor has good reason to believe that the records contain information that is not available from any other source about whether a rd party committed the crime and suppose that waiting force in a state court proceeding the issues of time and burden are still there now in us me nixon that was a case where the president was a witness and the documents were asked for and this court said it should be handed over but in that case it was very clear that the president was a witness and the attorney be independent counsel there leon jaworski specifically stated to this court that the president was not a target so if we had a pure standpoint while it's a different case the same constitutional principles would be at play but here we're talking about criminal process targeting a president was the answer that would be permissible if the prosecutor were willing to say that the president was not a target whatever that means well i mean that it's constitutionally permissible it would raise different issues for the president to consider but constitutionally i think that we have to be i have to be very clear here constitutionally under article two and the supremacy clause as to a state court proceeding here we think even as a witness it raises serious issues obviously a very different justice thomas pointed out is nowhere in the constitution and in fact the constitution protects against presidential into appearance with state criminal proceedings it doesn't allow the president to pardon  offenders for state prosecution search state criminal convictions and yet i find it odd that upon you want us to rule that there's sensually an absolute immunity prosecuted if they leave that information don't we usually presume that state courts and state prosecutors act as they should in good faith even if you want to do it if you let me finish and  president always has the opportunity to show that a particular subpoena in fact was issued in fact the president was given that opportunity here and  judicial officers and congressional officers community actually than their official capacity if they don't if judges sexually harassed someone we said that's not w judicial actions they can be sued if a congressman to the same thing they can be sued so my question still comes you're asking for broader unity tha anyone else can well we're asking for internal time for a brief answer to a council we're asking for temporary presidential immunity i would point out that under new york state law with this is before a grand jury are not shown to secrecy they can state that they testified and what the nature of their testimony was i'd also like to point out that there are hundreds of members of the united states congress and a one hundred members of the united states state senate there is one president  secretary you've said that a number of times and made the point which we have made that presidents can't be treated just like an ordinary citizen but it's also true and indeed a fundamental precept of our constitutional order the president isn't above the  law you know from our st day as chief justice marshall told thomas jefferson that he could be subpoenaed he could be examined as a witness he could be required to produce papers and so i guess going back to justice briar's question why isn't the way to deal with these two things that the president is special of the president is like an ordinary citizen in that he subject a law is to say the president can make these usual objections that a subpoena recipients can make about harassment or about urban and the court and reviewing those of course should take seriously the president's objections and treat those with a certain kind of sensitivity and respect due to somebody who is a branch of government why isn't that the right way to do it for two reasons st and i think the case here is a perfect example here the district attorney copied verbatim the house oversight committee and ways and means committee subpoenas verbatim that and we were just discussing in the previous case the nature of that burden for council president hiring counsel for each time he could be subpoenaed as a witness or in this particular case as a target would raise a serious impact on the president's article two functions so we think a categorical approach and it's very specific here state process as to the president targeting the president's documents in a criminal proceeding should be prohibited just to score such counsel i'd like to return to the question of clinton versus jones and how you would have us distinguish it yes it took place in federal court but it was a civil is as been played out others could have been multiple versions of that in multiple different districts across the country so what's what's different about that how do we avoid the conclusion there that the president wasn't subject to some special immunity but here is i think i think the nature of the case that we're dealing with here is not in a vacuum itself there are other cases that the president is dealing with at the same time so what may have been a situation for president clinton with a lawsuit we have multiple litigation going on including with the new york attorney general so i think the supremacy clause issue in the article two issue here is pronounced as this court alluded to in clinton against jones for that very reason this idea that local prejudice would impact the president so the idea that we would wait until there's more of these were already here on your subpoenas or three subpoenas three cases involving multiple subpoenas much of which covers the same documentation so i think it in fact just as gorgeous proves the point we're here because the house has asked for documents that now the district attorney is asking for so we are seeing that in real time the burdensome nature but there are his records from rd parties justice course which the rd party is simply the agent custodian of the president's tax returns on the president's statement of financial conditions so these are the president's documents that they're asking and what's to stop them from seeking a deposition of the president or for that matter asking the president to appear before a grand jury because if the official versus unofficial was the deciding factor and our view is that the initiation of process here interferes with the president's official duty but if there was going to be this unofficial official distinction put in place well then what stops the local district attorney from having the president testify having to press the president tried his ca criminal and another rule for civil just assume there's one criminal investigation that's it and just explain the rationale for a different rule there well it's not that it's a different rule because in this case because it's within the context of a state proceeding you have article two concerns and it's the supremacy clause issues as this court alluded to and clinton again stone said create the issues of concern about local prejudice but the the criminal nature of it creates a burden very distinct from a civil case to be clear so in that light hearted the idea that you are the subject or target of a criminal case being brought against you is very different than a civil suit  the end of the day it results in monetary damages not a loss of liberty so there's a big distinction between a civil case and a criminal case in that regard and i think that impacts the standard upon which this court should be looking at the president's temporary presidential nominee we're talking about stopping a process targeting the president to subpoena talking the president that's what we're talking about here it is that burden that is our concern because the other side says the position you're articulating is a bit more consistent with justice briar's concurrence and clinton versus just stand with the majority opinion is concurrence he's said the judges hearing  private civil damages action against a sitting president may not issue orders that could so significantly distract a president from his official duties it's pointed out that way which was not in the majority opinion what do you think about how we should assess that  versus criminal processes are two very distinct processes and in the civil context in a civil proceeding there is a we have the federal rules of civil procedure in federal court that govern how that process goes forward in federal judges in tak each considerations especially dealing with the president this is a state proceeding initiated by the local district attorney against the sitting president of the united states so the markets are and here is the nature of the proceeding itself is why we a greater threat to the president two thousand three hundred prosecutors across the country necessarily place more emphasis on local interest and national ones especial need bannard ensures that federal court balance the prosecutors local need for information against national interest including the president need to do his job that can ordinary grand jury rules are not designed to protect article two interests that is why an exam the court held a federal prosecutor had to show he demonstrated specific need for the information saw a local prosecutor should at least be required to meet the same standard as the court has repeatedly said in no case and i'm just kind  poured be required to proceed against the president as against an ordinary citizen and here in the district attorney hasn't tried to meet the special needs band or general francisco we just heard that mr secular argue in favor of an absolute standard no circumstances you know how your position is that as you say at a minimum the special needs test must be met course mr secular always representing mr trump you're representing the united states you're arguing for a more flexible standard so what was wrong with mr trump's position your honor i actually think that  secular makes a very strong argument on the immunity issue we just don't think it is one that the court needs to address at least until the prosecutor argues and attempts to meet the special needs pandered here since the prosecutor has been argued and isn't arguing before this court that he needs a special needs and there's no reason for the court to address the broader immunity question and it's the court's ordinary properties to try to avoid those broader and more difficult questions one possible and here we think that the special needs pandered would fully resolve this case at this stage of the proceedings bellina in a typical case with adequate allegations to say that the standards implicated you would say that it goes before a to go before the court he was looking for a ruling from us saying that he's absolutely immune so the court would have no business addressing such a case that's a very significant difference well your honor i think that in both instances the argument would be available to an art you would be able to make that argument to an article to better accord under our argument if the court found that the prosecutor hadn't met the need of been special needs standard it wouldn't need to address the broader immunity question if it did find that the special part that the district attorney met the special needs standard it would have to then address the broader community question and all we're saying is that i'm less than until the special needs issue is addressed at the threshold there's no need to address the broader immunity question in this case thank you counsel justice thomas general francisco the use mention the level of threat to the president or burden on the president how do we determine that whether it's too much well your honor of the year i think there are a couple of things that you can take into account st the fact that we're in state court i think it's quite significant local prosecutors are necessarily going to put more emphasis on local interest the national ones that simply reflect the manner in which they rise to office through elections by local relatively political communities than in new york state i would also add that the trial court judges are elected in a similar way so there you've already got this risk of local prejudice because the what the special needs pander does it is inch is that it ensures that there is a federal court that the vailable to balance the local interest against the national ones including the president's need to do his job and then secondly it also has to do with the ordinary grand jury rules that would apply to a local prosecutor exercising his authority those rules were not designed to and they're not sufficient to protect article to ensure that since under ordinary grand jury rules a district attorney never has to make a particular rise showing of need instead the burden is on the witness to show that the subpoena can have no conceivable relevance to any plausible subject of an investigation now that is a perfectly appropriate standard in the ordinary case but the reason why nixon applied the special needs and above and beyond the ordinary rules of criminal procedure was because the court recognized that the president is this bill person and who all article two powers are vested and so he is entitled to a measure of protection above and beyond the boarding area rules and the special needs entered is one of those measures of protection to put point back to justice briar's a very st waste of concurrent and clinton gets jones i think justice brier correctly predicted that this court would need to develop besh of protective procedures precisely for the president in the context and the reserve powers of the state that's one question that i have and the as far as the impact of the president is concerned i think there is no case more dramatic than the nixon tapes devastating impact on the president resign from office yet that was ok so i president of the united states he is the sole person in whom all executive powers vested in so that necessarily implies that there are limits on what others can do to unto we burden him in his ability to do his job that the special need and or does is ensure that a prosecutor really needs the president's information before he can enforce that subpoena if he can't even show that he really needs the information he's necessarily imposing an undue burden on the president and creating a serious risk of harassment and if you multiply that by two thousand three hundred prosecutors across the country i think that the risk to the president the it's quite obvious in terms of the nixon case we are actually arguing for the same standard that the need the information that he's seeking since again if he doesn't  specific to a decision that you would have them make a decision before they investigate that seems to be baffling your honor respectfully no i would simply urge that you as prior thank you general i think that nixon tape case has one thing for you one thing against you this is a thing against you i think it was a case where the executive privilege was a sort of it but what for you and i think might be more relevant is in that case the court said well there has been st a weighing of the burden some nature etc lot of other things in that in the lower courts that have decided that it is appropriate to go forward now what i don't see is why you need a special standard more than that here the ordinary standard you would  viewable in federal court i understand that but i don't see why you have to go beyond that where the things you're talking about would be taken into account your honor you are absolutely correct that at a minimum we would need federal court review and in that regard i would note that the district attorney here agrees that there are article two limits on what he can do and that those article to limit are in federal court but  litigation about private conduct is also burdensome and as the court recognizes inflame against jones the president might well need more protection in state court then he gets in federal court precisely because of the risk of local prejudice and that's why the court reserve judgment on that question but i think when you put those two things together it does make it entirely appropriate to hold a local prosecutor in state ordered to the same standard as the federal prosecutor with all due nixon case and indeed even if you were to take the district attorney's own case pacific test i think you would need the special need answered after all we don't typically get discovery into a grand jury proceeding so the only way to assess at the front end general could you explain in more specific terms how you think this showing of special need would be carried out in district court that the prosecutor would have to make  kind of what would have to reveal what was being investigated why this particular information was needed for or essential for the investigation how would that be done with that be reviewed by the judge ex parte would it be available to whoever the sitting president is to object to that to review it and object to it your honor it is difficult to answer that question in a vacuum because i think it would very much depend on the particular case but let me make my bet abyad it i think that in order to have meaningful judicial review you would need the prosecutor would need to make public as much as could respond to them believe be made public so that the president would have an opportunity and the president's lawyers would have an opportunity to make their case on the particular facts if there is a certain amount of evidence that really cannot responsibly be made public then i think it would be appropriate to consider ex parte proceeding or filing under seal in all events we think that that's the type of assessment that needs to be made  probably somewhere in between those two things i think it's got to be i think it's got to be critical to the charging decision so it can't just be marginally useful or you know merely duplicative or or interesting  issue it does have to be critical to the charging decision if the information is readily available elsewhere i don't see how a prosecutor could meet the special needs standard and if the information he had see currently does happen is the question for him to make a responsible charging decision i also don't think deep how he would meet the special needs standard so i guess i would go down over justice sotomayor general there is always danger in taking a doctor and adopted for one set of needs and that has to do with needs that are balancing what is clearly recognized in the eyes of nd of privilege versus the need for the proceeding at  issue and transplanting it to a situation that's totally different where we're not talking about a claim of executive privilege i went on talking of executive immunity we're talking about private activities that predated the president's tenure so why are we using all that transplanted language and why don't we get to a standard that takes care of what you're worried about which is harassment and into fairness and simply ask whether the the investigation is based on a credible suspicion of criminal activity and whether the subpoena is reasonably kept calculated to advance that investigation a standard that looks to whether there is a good faith basis for the state prosecutor's actions and whether the subpoena is reasonable in its scope and purpose i don't understand why that sort of standard is an adequate especially plane and complain again jones even litigation about private conduct could be quite a burden and then it's particularly so when you're talking about private conduct that being litigated in state court pursuant to the procedures so i think that's why he correctly predicted that this court would meet in future cadence to develop special protective procedures precisely in this context and secondly i think that the special protective procedure that we are proposing here is necessary even under your needs the information that he's being if he can't make that showing i think there is a pretty good reason to be a little bit general couple of times now in response to justice pryor and justice your you've explained why we should use the standard from executive privilege cases by saying well litigation about private conduct is also burdensome but the point about executive privilege cases is not that it's burdensome i mean the critical factor is the way the interest that a president has in communicating with advisors on official matters often about national security often about military matters and and and the need for confidentiality in that and that's why the nixon standard was developed not because of generalized ideas about ur confidentiality of communications on article two more generally is meant to protect the president from being on duly burden is ability to carry out his responsibility and so i think that's particularly necessary when you're talking about heightened standard in order to take account of burdensome this burdensome this is something that can be addressed in any subpoena and i'm sure that courts when it gets to the president and the special responsibilities of the president will address those interests with respect with sensitivity especially if we tell them so so why would you need this heightened standard that is meant to protect confidential communications about official government b ss for two reasons your honor st because under the ordinary grand jury rules the only question as to burden them this is whether the piano has any conceivable relevance to any plausible subject of investigation and therefore district attorneys are elected into partisan elections so all we're saying is that this is the type of offense meant that need to be made in federal court and the most appropriate in using to apply standards is the standard that you've already been applying for fifty years under the investigating a tax infraction and the best and maybe only evidence of that potential infraction are the tax records in the possession of the potential defendant  why wouldn't that meet the special test that you proposed in every case and if that if that if it does what it would if we achieved well your honor i think it would depend on who the potential defendant is the potential defendant is the president of the united eighty here in the district attorney doesn't contest a fact that he cannot invite the president the united states until after he leaves office so he wouldn't be able to show that  need the information now in order to indict the president the united states court to potential defendant is somebody else then it might start looking closer to the nixon case itself where the special counsel was investigating a rd party and i think that would in fact be a relevant consideration under the special needs standard i guess i didn't follow that last portion of it let let said infraction is by a corporation or some entity  and we need that prosecutors going to say we need these materials in order to determine whether there is an infraction like why wouldn't that qualify under your standard i think that would certainly be a relevant thing to take into account under our standard and if he actually met the special needs that is with respect to the information and found that it was really necessary in order to bring charges against that rd party he may well need the special need pandered and then you have to address the enough you're on i think it i think it's more than that i think you've got to show that the information he speaking is critical to him responsibly making a charging decision that he can't get that information from somewhere else and the information courts them been applying for some fifty years now thank you counsel justice kavanagh thank you mr chief justice and good afternoon general francisco i want to follow up on justice thomas and justice kagan and really  o in on what the article to interest is before we talk about what standard and i think in justice briar's concurrence in clinton against jones  referred to the interest in time and energy distraction which he drew from nixon versus it's gerald a different nixon case as an independent article two interests that is distinct from to store ssion of official decision prior's opinion he likewise understood it to be both of them the whole idea is that article two vet all executive power in a thing goal person and that necessarily means that others can't unnecessarily hobble or debilitate that person in its ability to responsibly carry out his duties so the whole point of the special needs standard is to ensure that others including prosecutors can't on necessarily impede the president in carrying out his responsibilities so at a minimum they have to show that they really need the information that they're seeking since if you have two thousand three hundred prosecutors that are unnecessarily hitting the president with the pinas and none of them can actually show they really need that information you're necessarily going to be undermining the president's ability to effectively carry out the article two duties that the constitution and trust to him and to him alone on behalf of the entire country thank you counsel mr chief justice i may have please the court there are two principles at issue in this case one is the central role of the president and the functioning of our national government and the need to avoid interfering with the president's ability to carry out those important duties principle is that under our constitution when a president acts as a private individual he or she has responsibilities like every other citizen including compliance with legal process in particular this court has long held that american presidents are not above having to provide evidence in response to a law enforcement inquiry we're mindful that as a state after our office cannot investigate a president for any official acts and we cannot prosecute a president while in office but here we're talking about a subpoena a rd party concerning private conduct by a variety of individuals and businesses yes one of them is the president but no one's been targeted or charged with anything there is no claim of any official acts or any executive privilege as the courts below found this opinion imposes no article to burden whatsoever it was not borne of any political analysts or intent to harass instead it was prompted by public reports that certain business transactions in our jurisdiction were possibly illegal even though the allegations our office would have been remiss not to follow up in response the president asked the court to overturn two hundred years of precedent by declaring he has a blanket immunity while in office from any legal inquiry even for his prior private acts even though that could result in a permanent immunity for him and the other pardons if the statutes of limitation expire and even though it could prevent the discovery of evidence that could exonerate the individuals involved finally is not a claim also ask the court to presume that state actors have a quote reckless mania that will cause them to quote relentlessly harass presidents and that state and federal courts will allow prosecutors to do so of course there's no historical support for this claim which flies in the face of federalis to suppose and floodgates have been open for generations and there's never been a flood the only thing new here is the subpoena comes from the state but absent a constitutional burden that shouldn't lead the court to abandon its longstanding respect for state criminal proceedings thank you counsel you know we've had the cases this morning and this case and they are in many respects very similar and in the case of the subpoena it self there are identical but i think in other respects they're really quite different the separation of powers case this morning in paul and he's in an ongoing relationship the house and the president and issues of this sort although always very important come up with some breaking larry there's often disputes between the white house and congress over documents and almost always they are there worked out because each of those branches have a thought artes and powers that affect each other  you know the senate asked for documents from the white house from the white house doesn't give them then the senate says well we're going to you know take our time confirming your nominees and and back and forth but with respect to local prosecutors you don't have that  ongoing relationship so the possibility of working something out is is far less evident and if you're doing that the the stakes are well it's just a little more difficult because there isn't that ongoing relationship so shouldn't there be a higher standard before we permit the district attorneys from around the country but there are also more of them than the two houses of congress two thousand three hundred dollars of them should there be a higher standard than in the case of the problem is that the the approach that are suggesting really reverses the court's prior code approach to fact finding in these types of cases in a way that i think would harm the grand jury process which i can explain so again we agreed that there should be a heightened showing requirement but my point is only after a president has already established an actual article to burden otherwise there's nothing for a court to weigh in the balancing of article two interests against the need for a legal process which and that balancing and that  both central in both the nixon and clinton cases here to articulate for me precisely what standard do you think should apply in your case and in what sense is it more rigorous than that would apply in the dispute between the white house and congress yes i think we believe that a prosecutor if there's been a and affirmative showing by by a president of an article to byrd and of course the courts have below held that there has not been such a showing here but if in a different case there was such a showing made we believe a prosecutor should be required to show one an objective basis for the investigation and to a reasonable probability the request would yield relevant information we think language like that would be more consistent with past cases of this court and with the realities of the grand jury investigation and frankly the court's blow also already found that we've met that standard here the problem is that the alternative of requiring a state prosecutor to get permission st from a federal judge for any request relating to a president's business activities would undermine this court's prior rulings like the one in our enterprise is that a grand jury shouldn't be burdened by procedural challenges and delays across the street to federal court and say by the way we have an investigation underway it happens to touch on a president's prior business transactions in which he and others were involved in and we'd like to get permission to send  for records that are in either the possession of the president or maybe the president's agents like his accounting firm here again a complete bends the way that a grand jury process is supposed to work if i might the nd big problem i think with the d o j analysis is that the language they've chosen just doesn't work contrary to wise to what i just set out because it only applies in the context of a trial subpoena it calls for a quote stringent showing that the request is quote directly to central issues at trial and charging decisions again that language just doesn't apply in the context of a grand jury when no charging decisions have been made so that's why the formulation that we've suggested i think would be more consistent with what's needed in a grand jury context but again we think that it's utterly unnecessary here to apply in our case because a there's already been a finding of no article to burden and b we have already met the standard by the by the district court finding that  federal court in most other states your honor i mean yes a recipient of a subpoena who has a basis to argue either a privilege or a burden of some sort have the right as the president did here to go into court and make those factual arguments that it's that's either it should be quashed or or constrained in some fashion it is there is there is a grand jury judge who supervises all grand juries and their activities was always available here but i think the more important point perhaps your honor is that obviously given the decision of the court of appeals below in this case and to address that concern in the footnote in in clinton at this point it's clear that a president in particular who has a concern about this kind of impact on article two duties now always has the ability to go into federal court and not into state court which was the main concern in the footnote in clinton what if you thought it was the president it was impossible for him to do his job as  the point of the case specific analysis is that it gives a court and here a federal court to hear a concern like that expressed and if the concern is you know if somehow this is just my office down a board isn't it a real burden it's not just a speculative mental distraction claim then yes the courts are empowered to impose a wide variety of limitations including if necessary to shut an investigation down or to shut a subpoena or litigation down that's the beauty of this court's prior decisions in nixon and clinton and others which have decided consistently to apply the case specific analysis and and have rejected the notion that this is best treated  prophylactic rule i just think that that's not appropriate here when it's also case specific for the principle of connections that have been raised when you're dealing with federal prosecutions all controlled by the attorney general but here you have i understand iran and i think really what they get centrally to is the consistent argument here about the parade of horribles if you will and if i could address that i think there are several answers to that concern st of all there's really no empirical basis and in history for this there's apocalyptic prediction the same claim was made and rejected by this court in nixon and then in clinton that of course was decades ago and there's not been a flood of subpoenas or litigations or prosecutions of of presidents by by states or federal prosecutors nd as a practical matter you know this notion that there are two thousand three hundred prosecutors out there writing with their subpoena pads open there's just no basis to think that an army of local prosecutors like that would even have jurisdiction over president especially for private conduct in the st place here in new york city of course has a particular connection to the trump organization as financial transactions because it's headquartered here it's not likely that that more than one or many reckless mania by local prosecutors contradicts this court's longstanding presumption in favor of regularity in deference to state proceedings and so to finish off the limitation i think that you're asking about really comes in the in the form of the case specific showing that past cases from this court have established because if there is a concern about the behavior of local prosecutor any president when necessary but it's been a few and far between over the decades can run now not just in to state court which clinton thought could be problematic but they wanted a federal court and raise exactly the kind of claim that the president has raised here that's the limitation thank you  constitutional statement that the president is the executive article two and they conflict justice in the st place the st case the power of congress article one and article two conflict  all right i think i would say they don't conflict but yes they're in tension right now a possible solution is to say no absolute rule but just send it to the needs versus the burdens and the different sides have to say what they are and then have that reviewable in federal court and because of the nature of it and we could list an opinion the kinds of things that might not be might be relevant depending on the case and eventually with the president we might review it now all that would take time to time itself would discourage prosecutors from doing this which might be good and time until put in courage house congress president to work things out in a nontraditional way all right i don't put that as being what to  i want to know your reaction but your honor i think what you're describing has got what this court held in in clinton and is exactly frankly what has happened now in this case which is yes in this case the president decided to pursue his claim of immunity in federal court versus state court which is fine and now available i think in the future to all presidents but i think the the fact that that is what should happen in the ordinary course in which can happen in the ordinary course is again the solution and the limiting principle here because it does make it clear that there is a remedy and it discourages i would have thought bad faith impulses by any state or local prosecutor who might  and provides an outlet that make sure that it can't get out of control but again that's the beauty of the case specific analysis i don't think these things lend themselves to categorical prophylactic rules and that's been the protests in this court from day one but yes that's the concept of ok reasonable probability what would be your objection to a somewhat more demanding standard so the prosecutor would have to show that  information can be obtained from another source or would be very it would be very difficult to obtain it from another source and the information that unless the information is obtained right now as opposed to at the end of the president's term there would be some serious prejudice to the investigation either i frankly don't think that any of those concepts are foreign to the standard that i had articulated and i think they are relevant  including the fact that you know the reason why we went to maze ours is not to do an end run around negotiations with the president's lawyers it's because masers as the outside accounting firm is as far as we could tell the only repository of what might be the most important documents an investigation like this which are not just the tax returns but the surrounding accounting materials and work papers etc which shed light on the good faith or not of the transaction so my short answer most i'm sorry is that i think those those concepts are are are would be fine and not them to be burdensome in the in the context of the standard that i set forth and i ask you one other thing do you think that the education of this and all cases of a similar nature would depend in any way on state law practice regarding grand jury secrecy in federal court the rules of grand jury secrecy are of course very strict states have different  suppose a particular state imposes no restriction on regulation by a member of the grand jury or perhaps even by the prosecutor of the information that is supplied in compliance with the subpoena leon i'm not aware of any other states having that kind of lax or nonexistent or injury secrecy rule i can assure the court that in new york state our grand jury secrecy laws or at least district is under the federal system  putting that aside if in fact the facts hadn't present to a judge the prospect that the information in fact become public add a president were to persuade a judge that the publication of the documents at issue with themselves impose some sort of article to burden or other other interference with his executive duties in that given state you know i suppose that would be part of the case specific analysis that the court could could understand and take into account in deciding meet all sorts of information including grand jury information all sorts of media sources including and specifically the new york times and if there were showing that that was a risk with that have a bearing on  this your honor it's hard for me to i'm i'm not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy yes in all the all different kinds of offices there are  at times you know leaks of status of cases and that kind of thing but i'm not aware and our grand jury secrecy rules really prevent prosecutors and i believe from you know actually turning over confidential grand jury secrecy materials to handle what you know you're not aware of this ever happening your office is never requested by media a new york city area to disclose confidential investigative information you know what they ask all the time your honor and the answer is consistently no it's as least as far as i can represent but what i'm trying to draw a distinction between is people commenting to reporters all the time off the record that kind of thing versus turning over actual materials like you know the luminous tax returns or other sensitive documents that have been gathered and which are covered by grand jury secrecy that that's what i just don't see happening here and i think express finding below here that there was a the investigation was well founded that there was no harassment or bad faith in the targeting of these did i understand your answer to justice alito to be that you are in agreement with the s g t that we should impose a heightened need standard a special needs standard you know your hon to if you can counsel because i want to be very precise if your standard includes what the height and the standard has then why not call it what it is heightened need there has to be a reason you think stringent showing that is subpoena request is directly relevant to central issues at trial and other concepts like that what i'm trying to propose is something i think which is not so strict and which is not limited to charging and trial related concepts but which would be workable in the context of a grand jury subpoena and again whatever the standard is that were taken late in life i want to stress that i believe that we are office has met that standard here even under the o'jays proposal because of the findings by the district  why the heightened standard would interfere with the grand jury process well i think your honor that among other things the the d o j has proposed application of that standard if you read its brief would confer the same absolute immunity the president seeking here what they say is since you can indict while in office you don't need the documents while he's in office and frankly that's an outcome would have fly in every case no subpoena could pass that test because they basically say you know you have to wait until he's out of office before gathering information be because you don't need it in the meantime and so their definition of heightened need says you don't need it while he's in office well that's not workable here why not because the well obviously your honor if you want to wait until a president was out of office in a situation like this st it would respond loss of evidence the fading of memories and of witnesses which is exactly what the d o j maust memo of course specifically contemplated that a president could be subject to a grand jury well in office to avoid losing that kind of evidence secondly and equally important here no one should forget that  we've got an investigation that that is looking at the conduct of other people and businesses and waiting like that would benefit those other participants they could all end up above the law if the limitations period expires so delay here is the same as absolute immunity and absolute permanent immunity for the president and others at the statue of limitations expires that's that's the that's the problem with delay well that is the other side says the statute w get the president but you're right it would be told against other people who may or may not have been committed crimes that he may or may not be a part of the current correct and that's important for the rd parties but i just just to address the stage interest in investigating and potentially prosecuting if necessary down the road i don't know where that concept comes from but it's never been articulated by dischord there's no act of congress which permits that kind of tolling here and so for us the statue of limitations is a big concern we've we've frankly we've already lost nine months of time in this investigation due to this lawsuit and again you know this every minute that goes by is you know basically without even a decision on the merits here granting the same kind of temporary absolute immunity that the president is seeking justice kagan dunne you've been talking about how to analyze these burdens on a case specific way the burdens both in terms of the president's time and in terms of any possibility of harassment of the use of a subpoena for political purposes and mr secular said that the burdens and a chair of the subpoenas is categorical that was his term and i take him to mean that that any subpoena interferes with the president's responsibilities question i think in clinton and concluded that a president can realistically be shielded from every sort of private distraction including some forms of legal process especially in our modern age so that's why it's up to a court to evaluate and protect the president depending on the circumstances on a case by case basis secondly here the claim of the possible mental distraction is extremely completely speculative really it's based on the notion that the president might be you know worried i'm distracted about where an investigation might lead some to and it's not based on any actual article to burden or interference of the sort the the court was asking president clinton to demonstrate in clinton v jones and rd i'd say if that's really the concern i think it's wrong to think that even a categorical rule here would provide comfort to distractable president like that so for example nobody suggests here that we should be barred from continuing to investigate the president's prior colleagues so if we now gather documents from them that reflect past communications with him while he was c e o are we then supposed to be stopped because it could create a fear in him that the investigation of others might lead him to be accused of something someday again my point is that the speculative mental distress standard is not an appropriate basis to draw a constitutional bright lot that's why the case specific approach is more appropriate and especially mental distress happen if they really mean political undermine it well i mean that that's beyond the can of our office your honor and as again the district court found there was no bad faith intended by virtue of our our subpoena so i don't know  it's already been determined here there's no intent to politically undermine so i don't know how a court could try to evaluate that and i'm not sure that would be appropriate unless the in much respects you mr secular suggest that you've shown your bad faith by taking the language of the house o our office and the house committees were looking at the same public allegations in that regard in a situation like that once the house subpoena became public it's not unusual for an office like ours to model our subpoena language that which is already been made public from a different source when it's going to the same recipient it makes it easier on the recipient of the process there was actually no communication between our office and the house about there's nothing sinister about it you i'd like to return to your colloquy with justice alito and sort of my or because i guess i'm uncertain what the daylight is between the test you're proposing and the test the solicitor general has suggested it seems like both of you agreed these questions should be result in federal court and you've suggested that there is no prosecutor should have to be demonstrated objective basis for the investigation and if there's at least a reasonable probability that information sought will be helpful to that investigation that it can't be obtained elsewhere and that it's needed now rather than at the end of the president's term because of some serious practice it might take place in between  understood your discussion with justice odom are you suggested the sosa difference is the solicitor general thinks there should be an absolute immunity till the end of the term i confess i didn't read the briefs that way i read it as just in the district attorney has to show why there's a need for the president goes to court goes to federal court in this instance now and makes an affirmative showing that there that the standard has been met that there's some objective basis and it can't be obtained elsewhere etc etc and only after such a showing has been made by the prosecutor according to the d o j there's a burden then shift to the president to show article tuber and i think that's what's completely backwards and inconsistent with nixon and clinton i think it's much more appropriate for the president as a moving party as here to be required to make a showing as any other litigant would would be the case again here we're talking about purely private conduct to explain why this this request  somehow impacts not just on you know the need to gather documents which is not the case here but on an actual article two burden and only one step showing has been made should i think the burden shifts to the prosecution consistent with past cases by this court to explain why none the less it still necessary to permit the court at that point to conduct the the balancing of apples and apples in terms of coming to the right conclusion  the specific case to me nestor done so mr dunn am i correct in thinking that that you agree that the forum should be federal court you agree on all the relevant considerations the necessity the information that can be obtained elsewhere the timing lawyers but i think the important point that i would want to leave the court with is that even if one were to adopt that standard or even frankly i think the b o j standard the fact is we've already met that test given the findings of the court below i know you think you win no matter what i'm just we have to write a rule that's presumptively of of some value going forward and isn't just about one president but it's about the presidency and i'm just trying to understand what daylight actually exists  and is it fair to say that the only daylight that exists between the solicitor general is who bears the burden of proof i'm not here to put words in your mouth i'm trying to understand i think it is the burden and the difference in language which i pointed out to justice sotomayor i think that language differences differences are important because i don't think the the o'jays language works in a grand jury investigation thank you justice cavanaugh fake you chief justice and good afternoon mr dunn on that last point that you were talking about just a score such the difference between the next and heightened need standard you said it doesn't work in a grand jury what do you do with judge walton opinion in re sealed nixon standard as the nixon court contemplated to a claim of executive privilege and as has been pointed out earlier today i think that that's a very different analysis to be undertaken for a very different purpose and i don't think one can just simply import that language and apply it to let me i'm sorry to interrupt let's let's leave that for a moment but the point on the grand jury versus trial just on that point judge walton opinion did take nixon and apply it in the grand jury context and indeed in even in the grand jury context when you're talking about a privilege analysis i think that language is appropriate because at that point you already have once there's been affirmative showing that established  that there is a privilege to be able to be addressed that of course like with any attorney client privilege for example it's necessary for the court then to turn to the demand of the request and the documents that are at issue and evaluate them in you know in light of this if we can move on to the article two issue then do you acknowledge that there is an article two interests at stake here yes and what do you think it is i think it's the article two interest to be free from unreasonable burdens on the duties and obligations of the presidency and that's the same analysis that was applied you know in nixon and in clinton do you think time what justice pryor referred to as time and energy distraction are appropriate article two interest well yes and as a matter of degree again that was that was the court's analysis in clinton call there that and although the court allowed the litigation to proceed of course appropriately as i think is the case here there's a need to make sure that the courts that are overseeing this kind of objection are undertaking an analysis of what you know what the burdens are including in a very practical level i think the clinton court hypothesize that perhaps you know a request for actual in person testimony at trial by a president might be inappropriate you know again if they feel or side made to distinctions with clinton and i want to make sure you have an opportunity to address them one is the federal state the other is the civil criminal on the civil criminal i suppose one thing i'd like to hear you address is in a civil case in the court emphasizes some clinton versus jones there's an individual person at stake who has a claim there not the same in a criminal context obviously there are different and very important interests there but not the individual interest is that can you address that well if that's one of the things in your honor i say i suppose on the other side of the coin there is the important difference that you know there are potentially thousands or many more potential private litigants out there who are not bound by the kinds of ethical and jurisdictional and other constraints that prosecutors are bound by and to which this court has long paid deference i think that the reason for concern in the civil context is actually much higher than it should and sorry if i get my last question on the  federal state if there is an article two interests at stake and you said that there is it's different of course from the executive privilege interest but there's some article two interests at stake i think the other side says it would be odd if the standard were easier to meet for a state prosecutor and for a federal prosecutor and i just want to give you an opportunity to address that young frankly when i don't really understand that distinction i think under the the analysis that this court has applied before in the one we're talking about now the same analysis would apply in terms of a case specific evaluation in the context of the project in particular facts of a particular request so you would just argue there you're ok with whatever standard applies to a federal prosecutor in a case applying to claims of executive privilege but i think to get to your point i think what it comes down to is that you know in the in the nixon and clinton cases where we're talking about you know article three verses  of separation of powers analysis here the analogy is we are balancing federalism in th amendment concerns about police power of the states against the supremacy clause so it's a different analysis perhaps but it's very  you counsel we have time for a little bit of a nd round and i guess a good thing that i would like to focus on st is this question of how you examine the burden on the the president or the presidency  i just don't understand how it works in terms of you or the president being asked to devote a certain amount of time to reviewing for example in this case ten years of documents or whatever i mean what is it is you're supposed to be a hearing where he says here's what i'm doing i've got this pandemic thing you know china is causing all sorts of trouble you know most presidents throughout their term have a pretty long to do list and i'm just wondering how it's ever going to be any different in evaluating what that burden is it seems to me that it would be the same no matter what you really wouldn't need a particular hearing on that i guess your honor and what we're talking about you know in the context of a particular subpoena like this one or litigation or what have you been like and and clinton again this court has already decided that you can't shield a president from any sort of every sort of private distraction and i just want to emphasize here again that much of this was in the civil context the question is whether or not a criminal investigation might be a little bit more distracting i'm not sure your honor i mean i'm not sure whether the stigma of  simple secret grand jury investigation even if it becomes publicly known is more distracting and stigmatizing perhaps than being accused even similarly of sexual misconduct which was of course allowed to proceed in the civil case involving president clinton so i'm not sure the again the abstract concern about you know possible mental distraction or even public stigma under this court's prior analysis is sufficient to adopt a new bright line constitutional rule that forbids any kind of process like this given the history of a little bit of that is what the president's personal lawyer is advocated it's not what the solicitor general applicator not an absolute rule yes i know your honor and therefore the answer in that case is what happened here which is a case specific analysis before a court which as they do all the time is able to balance and listen to arguments about burdens and as here when the court finds there is no article to burden whatsoever after an opportunity to be heard that should be the answer and that's what's happened here justice thomas anything further for one brief question mr dunne there's been much discussion about burdens on the president on li think just as addictive but it was relevant that you know if the if a president was asked to actually appear and testify at trial someday someplace outside of the white house that might be the kind of thing that you say really shouldn't have to happen i would suggest there along those lines too that if they were president were to be or to be asked to produce show up for multiple days of consecutive get position testimony or something like that you know those kinds those are practical burdens or if the demands were that he show up at a particular time or place that is where there are conflicts and that kind of thing again since we're talking here about private conduct and no checking of privilege what we get to are really practical concerns about impositions on a presidential activities and that's i think what we're talking q justice ginsburg anything further justice prior  think you know justice alito one quick question i don't know how good this court is about predicting the consequences of some of our decisions but would you say that but the court prediction right clinton versus john the decision wouldn't have much of an impact on the presidency has been borne out by history i guess your honor not to give my view of the chronology in clinton v jones i'll try to be brief  is that i think contrary to some people's view of history i think that the district court following this court's decision kept a rather close rein on discovery in that case and don't forget later granted summary judgment in favor of the president long before trial it was only that it came out later of course that turns up in his brief deposition in the case that the president committed perjury which is what led to the impeachment proceedings and other travails he had so i don't think it was this court's opinion or the litigation itself that led to those problems if frankly was his decision to lie under oath so i don't i think that this this court's conclusion in both nixon and clinton that they could not you could not accept the notion there's want to be a parade of i'm not sure that i understood your statement earlier that the only difference between you and the s g well there are two differences one in the articulation of special needs for height standard but you said it's the burden of proof but you've already conceded to one of my colleagues that there is an automatic burden of pot in the heart on the article two kind of burden are you talking about and number three articulate more precisely what problems you have with the heightened standard that nixon s in my response i think to just discourse such my concern with my what i acknowledge was that yes a subpoena like this implicates article two issues and potential birds and it's those which have to be weighed in a case specific analysis i wasn't conceding that the mere fact of the imposes quote in article two burden i think that's that's the distinction i would i would i would draw and again getting back to the language question i think again it's the d o g s language that calls for a stringent showing that a request is directly relevant to central issues at trial and specific charging decisions and again very simply as a practical matter no court and no prosecutor could or could meet that standard because in a grand jury one is not thinking about charging decisions or central issues at trial and that's why i think the simple language that the d o j has is applying in its new hyde and showing standard is just not workable  dunne on the question of the possible distinction between state prosecutors and federal prosecutors the president's moyer's have urged that there's a legal difference arises and from the supremacy clause i don't think we've talked about that argument yet what is your response to that i think the response your honor is alluded to it before and i think all it means is that there is a balance to be struck between in this case the state prosecutors the supremacy clause concerns against the know are so important so i think that that's the parallel to the balancing in the in the federal prosecutor context but i think it's even more important given the federalism concerns and the fact that you know the state prosecutors of course not only have the reserve presidency assuming statute of limitations issues were solved which is a big assumption understand can you take off the concerns you would have about that so that we have those clear yes yes just as cabinet again i be honest at this point because the clock is ticking but even if that were to be addressed somehow the risk of you know over time by waiting of losing evidence and losing witnesses and that kind of thing is a very real risk again i think they will see moss memo addressed that expressly in saying that a grand jury proceeding should be allowed to proceed but secondly here and it's not unusual since there are other rd parties at issue in the executive privilege involves a variety of rd parties faces serious time constraints and has been found to impose no article two for these facts but our subpoena well within the scope of the legal process permitted by this court for generations  and seven asked decisions have consistently found that courts already have robust tools to protect presidents from abuses claims or demands there's no need here to off and president or to write a new rule that undermines especially when such a rule would create a risk that american presidents as well as rd parties could unwittingly end up above the law thank you thank you counsel mr sekulow you have two minutes for a bottle thank you mr ch justice let me start with this and there's some agreement the new york district attorney new york county district attorney acknowledges that there subpoena implicates article two issues and burdens they also agree that there is harms that could rise to the presidency we say those arms and baxley existed the others bassnectar of this is the ordering who carries the burden here that seems to be the issue that's left open this court's decision in cheney answered that very clearly and said the exacting standard is carried by the party requesting the information so it would be carried by the respondent in this particular case there has been no showing and no findings of heightened need standards are being met here and i think it's again also important to remand remember and i think this came up in the context of earlier questioning there's a different stigma that attaches to criminal process and civil litigation and i don't think that stigma should be ignored in a case like this but the irony of all of this is that the house of representatives and the district attorney issued a sensually the same subpoenas to the same custodian for the same records the house said it wants t records so we can legislate not for law enforcement reasons the district attorney says he wants the same records for law enforcement reasons he has no legislative authority but what's really happening here cannot be clear the presidency is being harassed and undermined with improper prost process that was issued in our view for the legitimate reasons the copying of the subpoena speaks to that the framers saw this coming and they structure  constitution to protect the president from this encroachments thank you mr chief justice thank you al whole of the cases submitted