personal records of a sitting president and no committee of congress and even tried to compel production of such a broad swath of the president's personal papers let alone for the stated purpose of considering potential legislation there is a reason that this is the st time  congressional committee has attempted such a gambit it has long been understood that because congress has subpoena power is implied it is auxilary and subordinate and when that power is deployed against the president it must yield absent any long standing tradition or particularly compelling showing of need the committees can satisfy neither condition here and that should decide this case the committees contend that these subpoenas satisfy the limits this court has always applied to congressional subpoenas but their arguments w render those limits meaningless for example they contend that this court should ignore the committees of improper purpose so long as these simply tack on a broad reference to potential legislation the claim that congress can use subpoenas to uncovers individual wrongdoing simply because that will always inform the sufficiency of existing laws and they challenge this court's ability to even question the constitutionality of the potential legislation that they rely upon the committee's obvious overreach is sufficient to invalidate the subpoenas even in the typical case but the court simply does not proceed against the president as it does against an ordinary individual the committees have not even tried to show any critical legislative need for the documents  now it is no secret the relationship between the house of representatives and the president is frayed but this is not the st or the last time that one house of congress will be at odds with the president the rules of the court applies here will affect not only this president but the presidency itself the court sh deny the committee's the blank check the seek and reverse the decisions below and mr strobridge i want to make sure that i understand the scope of your argument your brief began by questioning whether the house has any power to subpoena presidential records but you seem at the end of the brief to pull back from that you say that such subpoenas quote press the outer limits of congress authority and quote and that there is every reason to subpoenaing the personal documents of the president is a necessary incident of lawmaking do you concede any power in the house to subpoena personal papers of the president i think it is very hard to imagine that the house is ever going to have the power you know pursuant to its legislative powers to subpoena the records of the president because quite frankly the house has limited powers to regulate the presidency itself so i think it's very difficult to imagine a situation where it's implied power too so that's another that's another formulation for what i was just focusing and difficult to imagine a reason to doubt  in other words is your position recognized does it recognize in a particular case that the congress of the house may have such authority and that in such a case it would be for the courts to decide whether it's exceeded any bounds in that situation yes we have argued that a minimum this court should apply the demonstrated need standard that it is applied in other cases when when there is an attempt to process the targets the president so ok so you know so you say you say there is some power in the house you think there's a high standard i understand the house to concede there is some limit to its authority so it sounds like at the end of the day this is just another case where the courts are balancing the competing interests on either side is that the wrong way to look at it well i don't i don't think that we're asking this court to do anything different than it has to do with an ordinary case we're just noting that the restraints upon the powers of congress are  to be a pitched battle here because president trump is the st one to refuse to do that and initially he said because of an audit was ongoing now it seems to be broader than that but the owner of this was subpoenaed from his accountant or even hillary clinton's law firm billing records was subpoenaed seems that in our cases you say this one is one of a kind but it seems in prior cases it was a much greater religion of interest take the nixon tapes how do you distinguish all of the paula jones case well your honor we distinguish them in a number of ways with respect to watergate and whitewater obviously those are cases of relatively recent vintage in separation of powers disputes this court h generally such as in canning look back for a much longer precedent for the type of issue that needs to be decided examples of encroaching upon the separation of powers and the recent examples there are just a handful of them that the  house identifies are too recent under that under that structure as the court recognized in southwest general now it's also important to note that almost all of those cases i think all of those cases actually involve cooperative efforts and as the as the court recognized below consent is not the measure of constitutionality none of those cases was there a challenge to the scope or to the power of the legislative committee in that case to request those documents and i think whitewater thank you to request or to subpoena private document i think that there might be limited powers in some cases for the house to subpoena private documents although the court has been very clear in walk ins in a number of other cases that congress lacks any power to just inquire what you do what you mean by that limited power well i think i think that we don't quarrel with the general notion that congress has some imply power to exercise its legislative powers and we don't and we recognize that in some cases congress has been able to seek information that would be directly relevant to its consideration of potential legislation but as the diffuse circuit recognized and select committee and livingston recognized below most often that's going to take the view of forward looking information perhaps aggregated information and not attempt to you know reassemble a precise factual history that a legislative subpoena and an impeachment related subpoena well in kilborne this court recognized that there are two very different powers and and that when impeachment is properly pending before either body of the house  ability to subpoena pursuant to impeachment is coextensive with that's of a court of course court subpoenas are not unlimited but that has no bearing on this dispute because the parties the committees have waived any reliance on impeachment and and and nor could they these committees don't even have to restriction over impeachment so regardless just a prior like to follow up on both justice thomas and justice ginsburg's questions as justice thomas questions are you saying and as to justice ginsburg's question i would like to know why since in watergate and other cases watergate particularly the court gave contested material involving the very workings of the presidential office to the prosecutor why isn't whatever standard applies to personal papers a week or one not a stronger one well if i can answer that last question st i think that the court cannot refuse to see what others see to rumbly and and the threat in this case subpoenaing decades worth of papers not only of the president but the president's family members of his children of his grandchildren as the house has done in this case because of an obvious problem with respect to harassment and infringement upon the ability of the executive to discharge his duties twenty four hours a day unlike congress the president is never  recess and these types of subpoenas are are are going to be particularly troublesome unburned you saying that a week or whatever it is why wouldn't whatever standard applies to personal papers before the presidency be equal to or weaker than the standard for material that is the workings of the administration at the time well setting aside any executive privilege concerns which i understand is not not the focus question the answer is because congress is this court has repeatedly emphasized kilborne and walk ins and everywhere else the congress lacks any power to inquire into the private affairs of any individual and that's distinct from whatever interest they may have informing themselves about the workings of government now that informing power does not extend to the president it generally applies to lower executive branch officials and agency thank you i see and what about the st question are you saying that the urban committee subpoenas  study for possible regulatory legislation i think it's difficult to imagine for a couple of reasons one is even setting aside the fact that it's the president this court has always required some showing that the president's personal papers are not related to anything having to do with the workings of government and to empower the committees to simply declare him a useful case study is to open the door to all sorts of oppressive requests you could have subpoena directed seeking all of jimmy carter's financial history simply because he used to be a peanut farmer and they want to keep study on agriculture you could have all sorts of requests for medical records educational records any imaginable detail personal records because congress does have the general power to legislate in lots of areas there have to be from my time expires i can ask you one other question i think you said that congress has limited power to regulate the conduct of a president does congress have any power to regulate the conduct of a president which is an office that is created by the constitution itself and congress the answer to that i think it's clear from this court case is not very much which is why frequently applies avoidance principles to to avoid even having to decide whether congress has attempted to reach the president now the one example obviously in recent history is the nixon versus general administrative services case even in that case it was a very limited right to regarding presidential documents one could imagine maybe some hypothetical would there be some limited personal papers that might be relevant to a question regarding custody of official documents but of course even in that case i would say the constitutionality of that statute was the fact that it was not seeking to present personal papers and that control remained in the executive branch they are there is a long history of congress seeking records and getting them as justice pointed out from presidents in some of those cases we have said especially and  graham directional subpoena is valid so long as there is a conceivable legislative purpose and the records are relevant to that purpose i see a tremendous separation of powers problem when you're talking about placing a heightened standard of clear statements various formulations of this on an investigation that a committee is in barking upon now i understand your complaint about the financial services subpoena on the money and the injury issue but are you disputing that the stated purpose of the intelligence committee subpoena at issue investigation efforts by foreign entities to influence the u s political process and related to the financial records of all of that that those were irrelevant to that purpose and that's an illegitimate purpose five the investigative committee by the intelligence committee will be taking taking the relevance question st even if you accept that there was some legitimate legislation that could be had that reached the president because what we're seeking  presidential finances when you look at it when i'm sorry partisan or not presidential finances were asking for his personal tax returns before he became president those  different things and we're not asking him to produce it and some of the subpoenas to congress through history as far back as seven hundred and ninety two have asked for personal papers of the president while being president this is before he was president i don't understand it is and they're not his papers in the sense of he's not in possession of them these are private and subpoenas  entities ok so there are a number of issues there with respect to the custodian issue this court even going back to eastland has always recognized the ability of a person who stand in the president's whose records are in the hands of a rd party to come in and challenge them presumption this court has previously applied in cases that involve separation of powers it should not put a any finger on the scale for congress has asserted legislative power in this case and indeed numerous separation of powers quote he says starting with kilborne the court has declined to extend any presumption that const that congress had a legitimate power that was also true below in the d c circuit in tobin in the senate select committee case and even in sure thing what strikes me about this case is this is the st conflict between congress and the president as many of my colleagues pointed out we've never had to address this issue and the reason is because congress and the president has reached accommodations with each other and sometimes one has gotten more and sometimes the other has gotten more but there's always been this accommodation and it seems to me you're asking us to do is to put a kind of  weight on the scales between the president and congress and essentially to make it impossible for congress to form oversight and to carry out its functions where the president is concerned and you're quite right in what you said before that this one the fact that this is the st time the congress has attempted to subpoena this scale in the scope of documents from the president and none of the other cases involved a direct subpoena for the president's documents in the way that this one  think requires this court to draw a line it is unfortunate that the house did not attempt to seek these documents directly from the president or engage in any negotiation but simply ran to rd party custodians to bring that's one of the things that has the effect of limiting the number of defenses the conduct oversight of lower branches agencies or inform itself as to the workings of government these documents are not relevant to that and the power does not extend to the president was a separate constitutionally created officer i mean i think some former presidents they're not for official records where the president might have executive privilege where we have to worry about the conduct of governance and about the way the executive branch operates and as with us i would like to hear your views on why that wouldn't suggest that there is a lower standard here not a higher one well because i guess i guess because the fact that the person talking doesn't mean that they're not targeting the president and  it rejected a broader immunity argument there is still a need to ensure that the president is not going to feed on to harassment or distraction and there's necessity comedy we think that's best accommodate in this case at a minimum by applying the demonstrated standard which justice course counsel i'd like to pick up right there where you left off you argue there is no demonstrated substantial legislative purpose house is before us normally apply in every case against an ordinary individual because the president has his own powers that are created by the constitution and then of course this court in a number of cases as we describe has recognized going back to chief justice marshall that  we do not proceed against the president as we do against an ordinary litigant and so whether that was in cheney that was the limiting its direction given to the a p i'm sorry to interrupt you but i guess my question was more practical than that  any with any specificity what actual valid legislation it should be an act that directly reaches the president even if it had it has been identified how documents going back upwards of ten years in some cases completely unlimited and seeking the most minute financial details not only about him but his children and his grandchildren every care at card swipe every check has anything to do with some purpose that would actually be permissible legislation and i think that any allowance of the key study rationale relied upon for the financial services committee is a door that opens to endless subpoenas and harassment any time one party of controls one house of congress opposite from the president thank you  standard explain for me how that would play out in practice in a case like this well when in a case like this obviously we're congress is asserting its desire to enact general legislation i think it's going to be very difficult i don't doubt the possibility that they could meet the demonstrated need i mean i don't i don't completely rule out that possibility although i think it is telling that the health devoted all of one sentence to each of these subpoenas attempting to just assert very broadly that they meet demonstrated criteria but if there was some situation in which congress was actually had to put forth the statute for which the the needed some information to decide whether to enact a statute the statute was valid and for some reason the president's subpoenas that the court and walk in said very specific questions about whether they're really attempting to expose allegedly wrongdoing as opposed to achieve a valid legislative and secondly following up on justice kagan this point about the future on page six  supplemental letter brief you say that quote it is likely that civil litigation over the subpoenas would have been foreclosed had the committee issued them to the president and quote you say this case is different because the pieces were issued to a  party custodian and there's an implicit assumption there that i just want to make sure of namely that absent a court order the private custodians plan to comply with the subpoenas even if the client harass or request not to comply is that court need to recognize that it's not it's just not reasonable to expect in this situation the rd party custodian to risk contempt of congress or other collateral consequences and there need to be a vehicle to lead to allow for review especially in this case where the president is suffering years before you even a candidate for office the potential to harass and undermine the president and the president is plenty it's not much to ask before the house bills and the president's personal life explain in some meaningful way what laws it is considering and why it meets the president's documents in particular the subpoenas here don't even come close to create some problems for the house it can't satisfy any standard sensitive the article two and the separation of document that the purpose of these subpoenas was actually investigatory rather than legislative and if that is apartment consideration i wonder how a court is supposed to look at it should have court be probing the metal prophecies of the legislators should members of house committees be subject to cross examination on why you were really seeking these documents no mr chief justice i want to be clear i don't think any of that would be permissible all we are saying is that you should review the subpoena on the basis of the contemporaneous objective record that is the basis for the legislative subpoenas themselves so we have not in our brief turn to legislate their statements we haven't said that they should be able to get discovery into their mental prophecies or anything like we have said the chairman cummings is memo shows the objective purpose is wrongdoing but more important i would just point to the mismatch between the breadth and duration of the subpoenas and their asserted purposes i think with respect to all three they they don't they're just they don't match up with what the committee say they're doing if you look at the information they're legislative reason i do think if you look at the statements and we have an urge that but if you do yes i think they make clear that the subpoenas are not valid legislation that's the only numerated power to which congress has pointed here the house has not relied on impeachment and so you would simply say the subpoenas are invalid and to tie that into justice course which is question earlier i think we're not asking to go back and look at what they said or approach their mental process because i'm just saying if you look at pages forty six and fifty four of the read briefs and you look at what they actually say about their intended legislative proposals and then why they need the document if people they don't give you any specifics on what they're thinking about doing or any specifics on why they need the documents and that's not an accident it's not the product of carelessness or fault falseness it is because of the purpose here is to expose wrongdoing and the house has never really tried to substantiate why it needs these documents in service of its legislat problem what legislative change and reduce eliminate the problem so for example the ethics in government act congress may decide that it needs to beef up that legislation it may also decide that for financial disclosure purposes they could be disclosure of tax returns though those  our submission is much more modest that when that legislative when that inquiry involves the president that you need a somewhat higher standard with respect to purpose because the room for regulating the president is so much narrower than it is with respect to private parties and on the need side because of the dangers of harassing and distracting and undermining the president and that's a common theme that runs through the court cases that the president gets some measure of protection because you can't proceed against the president as i do that for reasons set out in an opinion by judge griffith we're not very good courts at deciding disputes between two powerful political branches so it should be rare but if it is in front of us why not apply the standard that is ordinarily applied to every human being in the united states in respect to for example grand jury subpoenas any human being in the united states when he gets a subpoena can go to a judge and say judge this is overly burdensome and then he has a chance to show it and hear if it's the president the court's already written in paula j tez apply that taking into account the special needs of the presidency just like other human beings sometimes have special needs they might be an emergency medical worker etc i would prayer in two grounds st the courts and the d c circuit have rejected the analogy to grand jury subpoena served by prosecutors these are legislative subpoenas not subpoenas issued by the executive branch are entirely different interests in the trigger different actually helpful the court there rejected an absolute immunity but said the president was entitled to some special protections and we're here saying the court to take exactly the same approach we're not saying the house has no power to get at the records of a sitting president we're saying that it needs to satisfy a heightened standard because if it doesn't these were question will become routine and that weapon in the standing arsenal of the houses of congress well i think be routinely deployed in a way that that harms both the separation of powers and that undermines the presidency only the president i have no idea why one would serve a subpoena that's brought both in bread and duration if what one is concerned about is a far more specific topic that would apply i would think the federal candidates more generally and more narrowly of foreign transactions and some more recent transactions and there is nothing in the red brief that explains the mismatch on the other side the financial services committee says it's investigating money laundering after the two thousand and financial crisis but it subpoena only goes back to requirements that would apply to the president and there's also mention of conflict of interest legislation that might apply to does congress have power to regulate president the financial disclosures or the hardest and i guess what i would say is if the house in a brief and explained with any specificity what it might want to do to the ethics in government act and why then it needs the president's document we could have got to be i think the before it even issued the subpoenas and so it's very hard to sort of shoot a target in the dark i don't know what the house wants to do with any specificity so it's hard to say whether that's a valid legislation justice s mr well that's the issue isn't it which is until congress investigates a it doesn't have a chance to determine what might be valid and b we don't have a chance then to look at actual law and say it may or may issued and their breath you know that the intelligence committee goes back ten years but i think it's fairly common knowledge that  trump before he was president was thinking about running for president for a very long period of time why is it that congress can't believe that looking at long standing relationships and how those relationships changed or didn't change is important to knowing what influence might be occurring this is sort of my work and wants to do that our submission is just a fairly modest one needs to do more particular question hasn't come up to the court for any constitutional context but in nixon of course the prosecutor has to show demonstrated specific need in the senate select committee case congressional committee i don't want you to go to executive privilege cases so i want you to two papers that indisputably had nothing to do with mr trump while he was a private person they're not asking for these records posting precedent they're asking for these records pretty being president i think that makes the problem worse not better just the sort of my or their targeting the personal life of the president before he to your use of clinton v jones because i had read that case differently of course clinton says that you're supposed to treat the president's request with respect when the president says like i  need a deposition scheduled at a different time or can we have written into roger tori's rather than a deposition but the fundamental claim of presidential immunity or or even presidential difference was rejected in that case and i suppose what if what i'd like to know about your argument i've read your brief and i've read the president's own brief and no place do you make a case as to why these particular subpoenas placed a particular burden on the president such that he will be prevented from carrying out his constitutional responsibilities and that's what i took clinton the jones to be saying is that's the kind of thing a president has to come in and show a sort of case specific argument about the burden on the president and are you making that kind of argument at all yes and no not if what you mean by burden is sort of president i mean the point of some of those suits is presumably to harass and undermine the president and the court that's and go you know that them proceed and it said the only thing we're going to be concerned about is if you come into us and say in defending those suits you're going to be prevented from performing the responsibilities that we the nation need you to perform are you making an argument of that kind yes in the courts below when the house was  said that probably it could not draw the blood of the president or read his teenage diary the power that they are seeking and the burden they will impose in the aggregate on the president will i think reshape and transform the balance of the separation of powers so yes we are saying that these subpoenas and certainly these subpoenas taken in the aggregate once the house has this weapon will harm and undermine the presidency of the united states not just this president the institution president and that is one of the interests the house has surged here what more would you require the house to do to assert that interest what would be enough in your mind to demonstrate the heightened you suggest is needed i don't think it has to go provision by provision just of course attorney things like that but i do think it's got to describe the possible legislation with the non specificity to enable a meaningful judicial review so we know th for a set number of years with that the that be sufficient and if not why not i think that might be and then the need then you'd have to look at what they were going after from the various campaigns that wouldn't get you anywhere near these subpoenas or targeting the president of course but at least in your hypothetical baby identify with some details some specificity what they were thinking about doing and then we could have then it would keep up what i think is a hard constitutional question of what the space for congress in regulating constitutionally created office are like the president with respect to disclosures and that's frankly a hard question that's the hardest of all the possible legislation they pointed to i just i don't see how we can have that debate in this case because they haven't even enable stamp in a blank check it purports to authorize anything and everything that ever has been done and will be done by the committee it falls short and even of the fairly meager resolutions wrongly and walk ins which at least described general purpose general legislative topics that gets back to my colloquy with the justice course which and here we're talking about the president so i knew that three committee chairman understood what they were doing i don't think two hundred and eighteen members of house have understood that they pryor can you respond and those dealt with legislative subpoenas can you respond to those points about those precedents yes so for the st two hundred years of the republic there's nothing like this house's example either didn't involve the president out start in iraq but specifically watergate and whitewater so that when i was coming through i think the watergate you know is were for official records and obviously they were subject to a heightened need standard whitewater subpoena is the closest analogy modern it was never litigated but i'll grant that subpoena looks very much like this one i don't think that there's any historical precedent for it and the concern just is kavanaugh again we go down this road and the houses of congress weaponized the subpoena power in this new way that's going to sit in the standing arsenal for years against the president and any other constitutionally created officer and i don't think it takes much imagination to know where that road will we need or that we will regret having taken it said the legislation here doesn't match up mr wall referred the court to the wrong pages of our brief if you look at pages seventeen through thirty six you see that we discussed in great detail the purposes of the investigations and the subpoenas and indeed the d c circuit said that in telling terms the house has put legislation where its mouth is we have specifically provided two  s mr walsh said that the full house did not confront these subpoenas page two hundred and forty one of the appendix i refer you to where the that house specifically referred to these very the specific one and i don't think mr wall really meant to be to say that the members two hundred and eighteen members of the house did not know what they were doing when they passed that that obviously is not a valid argument to be made  then we turn to something that came out in answer to justice sotomayor question remember the one key records here some of the key ones that we want our one to president trump has not no privacy interests and no constitutional liberty interest etc next we do have a limiting principle that house very much does this court's precedent set those must be pertinent to a legislative purpose can't violate a constitutionally protected liberty interest or privilege and can undermine the president's ability to carry out his responsibilities manage under the let's talk about standard you propose the quotes in your your brief is that a concern a subject on which legislation could be had could you give me a plausible example of a subject that you think is beyond any legislation that congress could legislation there had to do with bankruptcy proceedings that congress was looking into when you don't think do you think bankruptcy proceedings is a subject on which legislation could not be had  authority is extremely broad especially because of its approval rating i'm suggesting that your test is really not much of a test it's not a limitation and it doesn't seem in any way to take account of the fact that we're limit if congress is interfering with the president's ability to carry out his article two functions no such claim has been made here nor obviously can it be made to give justice thomas yes thank you chief justice i letter i'd like you to discuss the how the power of the legislative subpoena power isn't slide or how we arrive at that power part of why where  wandering around in the wilderness trying to determine what standards we are to use your honor this court has explained in in quite a few cases i think  the congress is legislative power which investigative power which stems from the british parliament power is an obvious an interval part of legislation we obviously can't have congress  passing legislation in ignorant and this court has said for instance of most recently in franchise tax board that just because the power is something to be implied doesn't mean that it's not important for instance this court of judicial review that's nowhere mentioned in the constitution so the power didn't happen in another example of a power that a legislative power that a the congress investigated the st clair extradition he didn't actually issue subpoenas in that case but it's equivalent of the time and president in washington consulted with his closest advisers and decided to provide congress with every single thing that it requested so there was just several years in which to be really jammed full of congress is during the legislative subpoena to a private detail and walk and make you  done and then the other is clinton vs jones with this court said if there is harassment the court can take care of that and that's the answer to the justice department's entire brief there is no no  responsible claim here that all that's going on is arrest me and if there is this court has said we're here thank you justice prior thank you in respect to the authorization was there proper authorization by the full house of the legislative subpoena to point one room says look at the subpoena and it's all through station as of the time the subpoena was issued perhaps the time that it was challenge for the later authorization in the full house was passed to compare it with the senate select committee on presidential campaign activities whereas clause right there on page two hundred and forty one dollars it refers to vs very specific subpoenas and in addition authorization is much much different now in the modern congress the modern congress has said it will not examine and then the full house because there were arguments made the full house said oh no we authorized these exact subpoenas we ratify the issuance of these it is extremely clearly worded page two hundred and forty one a of the of the petition appendix thank you mr letter i was somewhat baffled by your answer to justice ginsburg about the use of congressional subpoenas for purposes of harassing the president your final answer was the courts can take care of that but that's the issue here whether something should be done to prevent the use of these subpoenas for the harassment of the president but could you explain what you meant absolutely justice alito this court in clinton versus jones and in other cases like nixon versus g s a has said we are here to protect the president if there is harassment from congress or private individuals and here they are there clearly though is we think valid legislator purposes so for courts below all found that there was not that i don't want to cut you off but i have a very limited time so your answer is that the protection private parties present does not even when you're interfering with the president's ability to do his job you mean this is going to take up too much of his time or do you mean does that include the potential for  use of subpoenas soley for harassment and political purposes your honor if they were solely for harassment then they wouldn't meet the standards of they have to be pertinent to a legislator purpose so i think the combination of all of those provides ample protection but there's no we're not able to give the chief justice even one example of a subpoena that would be well that would not be pertinent to some conceivable did said your honor the that's correct because this court itself has said congress's power easy to legislate is extremely broad especially when you take into account appropriations well some of the end result is that there is no protection whatsoever in your view that maybe this is this is the correct answer but in your view there is really no protection against the use of congressional subpoenas for the purpose of preventing the harassment of a president because the only requirement is that the subpoena be relevant to a conceivable legislative purpose and you can't think of a single example of a subpoena that wouldn't meet that test your hon krige privilege could enter in depending upon is the specific circumstances your honor but let me ask you one more thing if i if i can there's time are there any limits on the on using a president's records as a case study relating to the need for legislation so for example if the salary on the net worth of a future president before election was that of a person that would be regarded as middle class  congress that you know we want to study possible revisions of tax laws on the provision of services to members of the middle class what we are going to subpoena all available information about the assets income expenditures and services obtained by this sitting president and his family for purposes of considering that legislation without the permissible it certainly could be your honour's to hear that you're very good question here remember the  financial services committee is doing an extremely broad investigation of the financial services sector and there's massive public reporting that president before he became president president trumps personal records and his businesses and his family have been heavily involved in those very activities and we're investigating numerous other banks and individuals having nothing whatsoever to do with the president this is part of a much larger with the aim of making the president a case study threaten to run afoul of the score teaching that there is no congressional power to expose for the sake of exposure and  at the other side points to some hypotheticals that are troubling the president's transcripts simply to pass on educational reform legislation or subpoena of his personal medical records simply to enact general healthcare reforms tell me what we say to insure against those hypotheticals and  a proposed subpoena that mine be just for the sake of exposure your honor a couple of answers one is yes you said just for the sake of exposure is no good but  the there's an obvious need to focus on the president's financial records to determine if the president is subject to foreign leverage it is obvious that the ties in with that  disclosure laws by the president and so we we would have to look to see what exactly what the oversight committee was looking at do we need better laws about conflicts of interest do we need better laws about for example a president dealing in contracts with government agencies that the congress could limit government agencies ability to enter into order to keep contracts with elected public officials those exact claims were made and they are to expire discussed in great detail by the nd circuit and the d c circuit so those were fully litigated the morning mr letter in talking to the chief justice about the limits on congressional power you said and tell me if i'm quoting you correctly you said that a subpoena couldn't impair the president in carrying out his constitutional functions is that is that right your honor do would have to be a balance there ok but that's what we should be looking to and then you said no such claim has been made or could be made and i also took the briefs not to be making that claim that that ship piano would impair the president in carrying out his constitutional functions but mr will told me that he was kind of making such a claim because he that argument was not made in the justice department brief to my knowledge anywhere much from this will mention it here but there's no way that this could interfere with the president because he doesn't have to do anything this i banks in an accounting firm and as a said before in fact some of the key documents we want the president probably has never even seen or doesn't even know that they exist we want to know banks analyses of his his request for a long internal bank analyses but yes your honor that argument was not made in the briefs ok and if i could get you to talk about the history that some of your colleagues have talked about what do you think that history shows us with respect to voluntarily or not voluntarily complying with requests for information by congress and we went through it it's it's you know presidents washington jackson buchanan grant ways either voluntarily or not for instance in the nixon case nixon voluntarily provided surtax adjourns he didn't provide all of them congress and then more pursuant to statutory authority like a from president nixon and his family's tax returns i don't think that either the just apartment or mr trump answered that hypothetical history really matters here and it crimes that's a principle you're well familiar with from your time the department of justice and i'm wondering what limiting principle you offer us here that can prevent that danger  the st one was you have to be present to a legislative purpose but i think as we've explored that's very very broad and maybe limitless some would suggest on the other side at least constitutional privileges if you're investigating someone in their private capacity to going to be if you if you turn a client privilege things like that and it can't be burdensome i heard was your rd but an age where everything's  r and by the way burton here none of the subpoena recipients have claimed byrd your honor i answer it this way because again it has to be i'm going to stick with the pertinent to the jury purpose because for example congress say that investigation of an individual could be pertinent to a criminal investigative purpose too because there are so many federal crimes out there and it's possible this person jaywalked or fail order to figure out whether the criminal law should be changed to the most obvious example would be this court's decision just a little while ago overturning a key criminal conviction involving white collar crime obviously congress next could do a very thorough investigation of that to determine whether to pass a different criminal law statute that would actually make it a crime too to do what was done in bridge gate so it's going to be very difficult to separate the two and say that what congress is doing in looking into criminal activity for the purposes of determining if the f b i is doing a good job and needs more money or whether to amend a criminal statute kavanagh thank you mr chief justice and good morning mr letter i want to follow up on the line of questioning that i have several of my colleagues have pursued the chief justice justice ginsburg justice these subpoenas and subpoenas flight safer medical records would be a grave threat to future presidencies would be open season they say on private records of anyone who is president and maybe other legislative purpose but i think everyone is explore explored with you that just about everything can be characterized in terms of a subpoena pertinent to a legislative purpose i don't think you could even answer the chief justice question  something that wasn't and the question then boils down to how can we both protect the house interests and attaining information it needs to legislate but also protect the presidency how can the court balance those interests i guess thing i would say is why not employ the demonstrably critical standard or something like that this is what the other side would say as something that's borrowed from a different context but that might serve to balance the strong competing concerns here you're on the to a very good question i have i have several responses the st one goes to the last thing you said about why not employ a demonstrably critical test i i don't know how the court would the courts would do that without violating the separation of powers i was reminded recently by the congressional leaders that often they're doing investigations they don't know where the legislation might go with that point so i don't know how you would force congress to do to show some sort of demonstrably critical i wouldn't be the one to be the same way that it's shown in an investigation where executive privilege is asserted and the demonstrably critical standard in that context has been the tried and true method for about fifty years because then your honor you could look at you could demand that the executive branch show that its reason for for seeking something over outweighs the executive privilege claim but here in rumor that we're not dealing with executive privilege and all these  financial business records it's difficult to see how these could ever come within that kind of balance that would override congress's authority to do investigation the one other thing i can suggest obviously is this court has just sort of believe is the voters but also nixon versus fitzgerald with this court said that the president has absolute immunity from certain kinds of claims the court said specifically the one of the reasons that's ok is because we have congressional oversight of the president this court specifically used that to justify absolute immunity for the president in other areas and lasted clinton on the other hand why don't you can you join th amendment they would they certainly would be permanent why wouldn't they be pertinent to say attics legislation health care legislation or the like in your view you i'm having difficulty thinking of which of a hypothetical where if if congress is examining in deciding on amendments to the affordable care act how the president's personal medical records would be relevant to that aid if as you say the the most important public health statute many many decades i don't think would be affected by data at all so i'm sure we could come up with some i know you will be delighted to learn that we have time for additional questioning so i think i'll begin with myself and then we'll go through in order and just see how far we get one thing that hasn't come up  is the fact that we're dealing here with three separate committees and we're concerned as you've recognized with the potential for harassment and how does that play in i mean at what point does the number of committees investigating the president's personal papers become a factor in an analysis of the issue of harassment your i am very pleased there's more time for questions but your honor it would seem to me that there are situations again you have to look to you know clinton versus jones when does it reach a particular stage we're nowhere near that here and in fact the subpoena by the intelligence it's as you know very shortly in the nd case we're going to talk about subpoenas from district attorneys how does that factor in i mean should those be counted in the balance in terms of when congressional subpoenas become issued and show i don't know how that would tell us anything about what the house of representatives what about the senate i suppose they can issue subpoenas to campaign of course your honor you know how do you balance that you've got in this case three different house committee seeking subpoenas you've got the district attorney in new york you know depending upon party composition of different bodies in the future you might have the senate joining in how do you measure harassment a case like that your honor i think what you would do is if these were subpoenas from the house in the senate a massive number of them going to the white house then there certainly would be at a certain point where it would affect the ability of the white house for the president to function there's no doubt about that but the subpoenas are twenty three private businesses involving thank you justice thomas any further questioning yes i'd like to follow up on the chief justice of the letter the best you know at some point there was a straw that breaks the camel's back and it seems as though you're saying that we should look at  your i'm sorry i must have misspoken i meant to answer the chief justice's question by saying yes if there are a massive number of subpoenas from the house and the senate to the white house and the white house can come in and say the week we can't do anything all word we're doing is answering subpoenas all day long this is is is impacting the ability of the president to do his job why would under the limited to the house and the senate i mean it could be a possible and your honor is right and therefore if there were if our subpoenas were on top of numerous others from grand juries around the united states you could look at that but  subpoenas are the three are not to the president they are two private business entities nothing is required of the president here to for these subpoenas to be fully complied with not a single thing is required of the president or the white house i've seen go far beyond that they apply to fifteen trump affiliated entities they ask for all documents related to opening of accounts due diligence closing requests for information by other parties etc now that's a lot of information and some of it's pretty vague and if somebody subpoenaed you for that information or subpoenaed your tax accountant or subpoenaed somebody in your business wouldn't you at least want to know what was being turned over w you want to ask them and might that not take time and might that not take effort so my problem is there may be burdens here rd party or not and not just political burdens the job of the house and senate in part as the president is politics that doesn't bother me but the clinton v jones information does bother me and the fact that what i hold today will also apply to a future senator mccarthy asking a future franklin roosevelt or harry truman exactly the same questions that bothers me so what do i do justifier i fully understand that concern none of the subpoena recipients have complained about for the reason the subpoenas go back a ways because as you know tony dr drew i'm not talking about their burden i'm talking about the president's burden in having to monitor decide if there are privileges figure out what his answers are  claim has been made in this case no party nobody has raised a privilege claim nd is we're investigating for instance among other things money laundering money laundering requires looking at a whole range of financial activity what we're doing here is exactly the kind of thing that senate and house staff do when they're looking at the financial sector and what kinds of reforms should be made to the banking industry let me say one more time there has been no claim of privilege here there is been no claim that there is a burden no claim whatsoever so those may be relevant in different cases but certainly not this one if one house of congress were to subpoena personal records in the hands of a rd party regarding a member of the other house let's say someone in a leadership position  mind always wouldn't that violate the speech or debate clause remember no member of the house or senate can be questioned anywhere else and so if there's a a request for records if it's tied in in any way to the legislative function and all of that that generator or house member that would be invalid let's say they have some letter to the subpoenas here so they don't have anything to do with the performance of the legislative function they are records regarding personnel activities of this and eventual purely personal activity and we can even say that they can certain things that were done before the anything further yes that's the whole point though isn't it justice alito is raising this hypothetical because he says shouldn't then we look at history and a tone in modern history where committees have asked for personal papers so he presumably would discount that and he would say shouldn't you we respect the separation of powers that what's personal to the president of jackson buchanan grant general know there's been lots of seeking of personal papers by congress for many many decades this is not just a modern practice a i'm wondering if i could ask you to comment on a potential difference between on the one hand the oversight and intelligence committee subpoenas and on the other hand the financial services subpoena the st two subpoenas addressed the president directly you know the financial disclosures that the president makes conflicts of interest foreign involvement in presidential campaigns but the banking committee financial services committee  taking a much broader scope and and when the when that's true when congress doesn't seem to be looking into the president but in a much broader topic  might there not be some heightened to need for congress to say why it is that they're focusing on presidential records for that purpose your honor i think that still would get into it would raise major separation of powers problems as a court would have hearing what would the court would ask chairmans in the various committees to come and testify as to what they were doing and why you're certainly right in your description much much broader investigation and last is there is massive public reporting about the subject of these subpoenas and they are banking practices banking capital one have both been sanctioned many millions of dollars by banking regulatory regulators for failing to properly comply with money laundering really goes to the fact that i think there's concern about what the limiting principle is here i think pertinent to a legislative purpose is almost no limiting principle at all the stuff i think that's what some of the questions of explored and his hypothetical about a committee would start subpoenaing the members of congress of the other house or of the other party and you said well that hasn't happened but isn't the whole point that once your did start down this road and discord articulate it's too low a standard that something like that will start happening that's the concern that i heard and then applied or that i took away from that hypothetical so i want to give you a chance to respond to that hypothetical of why it wouldn't spiral i greatly appreciate the chance just as kavanagh to two responses st remember exactly what this court did clinton versus johnson and you know i was on one of the losing briefs there but this court said we're going to lead his happen because and then we will the courts will monitor the situation and if there are abuses the courts are still here in addition you know and they just leaders have pentacle i also realize it might be they're getting into things like privilege information war information involving  would apply presumably of least under what you've articulated so far today i think that's right but again this could come back to clinton versus jones you due to this court issued a very clear decision saying we're going allow this one but obviously the courts are going to monitor this so if contrary to what has happened in the past over our lengthy history if there are situations when the president's ability to do his job is being undermined thank goodness the courts still exist and they are there to take care of it mr letter would you like to take a minute to wrap up  the president has never seen and never had anything to do with and the we asked the court to focus on these specific subpoenas in this case because we're not dealing with what ifs here we're not dealing with situations which a lot of the justice department argument focuses on as i said before fortunately this court exists to fix those kinds of situations should they arise thank you mr letter mr strobridge you have two minutes for a bottle thank you mr chief justice you know my friend from the other side struggled with every hypothetical that he was given about his ability to set some sort of limiting principle or some category of information or documents about the president that would not be obtainable under his theory and i think that's very telling because there are no limits to their theories and in particular let's just consider the example that was given regarding medical records there's no reason under his theory why the president and his family and his grandchildren could not be declared useful case studies and therefore congress another subpoena for their medical records for that matter the president eats and things like everybody else and congress naturally has the ability to regulate food safety but that does not mean that congress can subpoena medical records or even the president's d n a my friend refused to even rule out that hypothetical categorically below and i think it's telling that that can't provide any meaningful limit today i think that's consonant with the fact that they failed to consider what their actual legislative need is this is an implied power in a tough legislation is  warrant to investigate wrongdoing going back ten years he said to a laundry list of legislative proposals almost all of which were passed before the subpoenas even issued and at no point in the argument section of their brief or today as he tried to tie any particular legislative proposal specifically to the president the finances let alone the pass off of documents that they see here this is not an attempt to preserve the separation of powers it's an attempt to of history that and that point i wanted to note in response to just a question which i may have misunderstood the senate watergate committee in fact did serve congressional subpoenas under the legislative power and applying the height need standard the d c circuit invalidated it just as this court invalidated the attempt to hold in that's the path that the house is attempting to lay decisions below should be reversed thank you thank you counselor the cases s