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tv   Trump v. Mazars Oral Argument  CSPAN  July 16, 2019 7:46am-10:01am EDT

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would amend existing agreements with spain, switzerland, on c-span3, 9:30 a.m. eastern, defense secretary nominee has confirmation hearing before the senate arm's services committee, followed later in the day by senate homeland security and governmental affairs hearing on preparations for the 2020 census judge panel at dc court of appeals heard oral argument in trump, congressional subpoena for president trump's business financial records. house oversight and reform committee chair congressman elijah cummings of maryland issued subpoenaed in april, this is about 2 hours.
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[inaudible] >> reform of the united states house of representatives. >> good morning. >> may it please the court -- [inaudible] >> private financial records,
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foremost, in many cases, have rules to name president. [inaudible] >> do you dispute that the house authority? but it has the power to issue a subpoena, the house itself? >> not the constitutional power. >> the house itself. your argument sounded to me all about the delegations of the committee not being explicit. the house itself did not have -- you just said the house had to be explicit that it was giving to the committee.
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>> right. i'm sorry -- [inaudible] >> could have subpoena power. [inaudible] >> yeah. i'm sorry. on your first nonconstitutional argument, but set aside, i'm taking, given your issues about within the legislative, but just to understand -- i'm trying to understand your statement and that is, yes, the house itself could issue the subpoena and would be over -- so the house has it and whether it gave it to the committee? >> correct.
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[inaudible] >> whether the committee issues the subpoena -- as i understand it -- >> correct. [inaudible] >> so can we talk about that -- >> correct. >> okay. so on your statement you say you rely on -- you rely on -- [inaudible] >> right? >> yeah.
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the question is whether the president is in office -- [inaudible] >> that's what it means, right? and in armstrong, we said -- we said that we are not going to imply against the president of the united states, right, correct? congress and the president. they are very different. this is subpoena that relates to requiring laws requiring financial disclosure. there's no significant altering the relation between the president and the congress, there's no subjective precedence
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, this is just disclosure which presidents for years have been doing. [inaudible] >> i'm talking about the actual house rules. >> you are challenging subpoena, documents related to the president's final disclosures. [inaudible] >> no one disputed -- >> so what do you think about my suggestions? >> sir, i would disagree -- >> but why?
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>> because -- [inaudible] >> right. [inaudible] >> challenge the house rules, you can only challenge -- >> i would respectfully disagree. statutory jurisdiction. [inaudible] >> the i agree with that. it is authorized by the rules, isn't that the question? >> correct. the subpoena directed at the president and house of rules --
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[inaudible] >> it's not directed at the president. that maybe a very different question, it's directed -- we are having to have documents given by the president. that would be different. something that operates on third party, something the president gave. >> i would disagree. [inaudible] >> protect his rights. >> still not the same thing. just a deposition and would be different of a deposition of a third party who would be telling them what the president said because you're not interfering with day-to-day activities.
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[inaudible] >> sure. are you asserting a privilege by state law or common law? [inaudible] >> we rely on that. [inaudible] >> we do have to apply them. [inaudible] >> that's how -- >> so, so in your view, what is missing is efficacy, house rules
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-- [inaudible] >> i would resist that's why. [inaudible] >> give them the power the subpoena. the house of representatives -- >> the only question before us -- the question before the court right now -- i get what you're saying.
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prevents the house -- [inaudible] >> would you be making the same argument? >> if the subpoena -- [inaudible] >> the hues rules specifically says the president will not be -- >> okay. that's my point. other question is to issue the subpoenas, nothing to do with -- [inaudible] >> but the legal question at issue here apply -- >> so your view then is that -- is that action against the president of the united states is out regard to impact on the president? that's your position.
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>> correct. so what are you doing with the language i cited -- >> i think raised concerns -- [inaudible] >> yeah. would require executive official to report wrongdoing to the attorney general and the court agree attorney general through dmownl -- counsel that would name. doesn't matter. 1958 cited in 1995 applied by this court. in every case, every time, you have -- [inaudible]
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>> as i understand it here you're not asserting privilege or immunity, maybe you can say a little bit more about constitutional interest of the president in this case. [inaudible] >> a constitutional question. [inaudible]
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>> whether valid registration on conflicts of interest, and those questions are hard, they are serious. >> what are those separation of powers, interests? unique to the office of president; is that correct? >> they are, yes. >> the president is different in constitutional offices. .. .. the majority view about this
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issue set forth in nixon two. the statute disrupts the proper balance between the court and it prevents new executive branch from accomplishing its constitutional approach. it's not just prevents. that's the majority of the supreme court. >> i mostly recognize that could prevent. >> how could the requirement prevent the government quote a a president trump fulfilling his constitutional -- >> 100,000 pages of financial disclosures once a month to discuss them. >> that is interesting that those are not the statutes congress is considering. >> the only one here has to do any work is with mazars. >> one at a time there.
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>> congress has a legislative purpose. >> back to the question as to how mazars is turning over documents already in its production. two different questions. question one is how does subpoena -- as saying, the presidents special -- >> he responded with a hypothetical about this subpoena would prevent the president from executing, exercising his powers. how would it impede upon his time and energies. >> this is not the beginning of the end. there are also to my questions that arise. >> this is the subpoena against
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the president. the court dealt with that issue. >> i think it straddles the line to be honest, judge tattle. congress is asserting a right. >> that's a good point. >> your point made in the case is exactly my point, which is -- >> that is a dissent. it was a dissent. >> it applies universally, which is what comes to the president, the person in office are one insane. >> so that's the burden. >> very exciting, many of the arguments raised on behalf of
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president trump relate to the unique constitutional status of the presidency and the infringement on his authority. why is the department of justice not here participating to protect the office of the president? because that's the primary basis of your argument. >> when they subpoenaed the president personal accounts, the president -- this happens in these times of -- [inaudible] >> in that case the department of justice also participated in addition to the private attorneys. if the arguments you are really of the office of the presidency, why is the department of justice not participating? >> they showed up and clinton v. jones as well as to represent the presidency. >> i can only speak for my participation. >> your companion argument here is not just that this interferes with this issue, a
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constitutional requirement to the presidency, right? your argument also is the legislation congress is considering on the ethics constitutionality at to the qualifications to be president? >> correct. >> did you want to say something? >> in two ways, an easy one is the power of interest rules. the idea that congress can hold money and a certain way or -- [inaudible] anything like that would be illegal, unconstitutional law. >> but what about financial disclosure? >> i think for the reason articulated in the letter to congress, , there's a good i thk strong argument that there is a hard-line drawn around the presidency just circled round the president just like the supreme court justices.
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>> i understand the general language, but before and after the ethics of government, anybody who is constitutionally eligible to run for president, over 35, naturally born citizen, hasn't already served two terms, anyone who meets those government for president will before and after. it's not like term limits with the states try to limit the terms of congress. i don't see why these limit anybody's going to run for president. does it? >> note carefully then conflict of interest. >> but the concept of interest laws as sullivan said in his letter, under those, those could prevent the president from actually, from either running because he has a conflict of
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interest or will as he also said, exercising the power of the presidency. i'm just asking about the disclosure. you talk a lot about conflict of interest in other aspects but suppose we just look at the fourth justification. which is whether the president of the united states has accurately report his finances to the office of governor. just think of that. do we have to deal with all four aspects in the letter or is focusing on what enough?
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>> let me give you two answers. there is an argument to make the just one is enough. we disputed that one is legitimate and need to trust that but there is a question of what the real object, which is . language. we have to pick one out and say is that actually the reason they're doing it based on public records. >> i completely agree with that. explain to me if i'm looking at just this one, that is at its suite of the financial disclosures why that is not congress pursuing a legitimate legislative agenda? why is a law enforcement? >> the committee isn't searching for illegalities. >> isn't that what congress would always do if it seeks to amend a piece of legislation? if congress thinks there's a problem with the federal communications act, with some aspect of that, is it going to
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testimony on companies are complying with it and whether they actually to amend the statute? >> if they were generally looking at companies. it was general forward-looking in the industry in the market i would have a harder time saying that this is a law enforcement. when you're hyperfocus on one individual and say over and over and over again what we are after is proving illegal conduct and the speaker thou said i want to see the president in prison. >> but he also says, the cummings letter says they're pursuing legislation. there are several bills pending. it's not like the statements you point are the only ones. the same letter i'm quoting from goes on dissecting did this information because, to consider legislation.
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>> if i could answer and preserve the balance of my time. >> sure. >> one, you can't say we will investigate legal and then say we might have legislation. that can be done anytime and anyplace. second, i think the statement to the committee here, supreme court versus sanchez it was determined the court does not have to be naïve. the court does not have to accept the source of welcome here some legislation of counter arguments and deny what is during the court speedy right. first of all, there's legislation, bills that have gone to the house and draft bills pending. we're supposed to say that all up -- >> the one spinning mostly deal with issues speedy but that once it do with with ethics, financial disclosure, contracting. there are draft ones and one set of impasse, correct?
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correct? and. >> correct. >> okay. so you're naïve theory we would have to say that was all a ruse. it wasn't -- >> what i didn't say it is whether there's a genuine -- >> how would you say it's not genuine? >> i like to reserve the balance of my time. >> will give you plenty of time. >> i would say let's look at what the members say. >> is that your task? don't we had to look at everything? if you look at just what they say, congress will and cummings in this letter and other communications in this case says they need this information to evaluate, to pursue legislation. he says it many times.
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and, in fact, okay, so h.r. one which has passed the house i think would amend the ethics in government act to include closely held corporations, assets and liabilities. h.r. 706 would require president and candidates to submit their tax returns. these bills have passed the house and they are directly related to the subject of the subpoena. do we just ignore those? >> so what, again, we think that legislation -- [inaudible] i think nevertheless, the court has an obligation to look at how this all started. whether it was issuing a
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subpoena and own memorandums as the very percentage they're looking for president engage in illegal conduct. the court said look at the real options. >> i'm asking how we do that. because you realize this is a delicate area and we have all these presumptions. you have pointed to statements that politicians have made. let's look at the ones before the subpoena issued, not after, to support your cause. but then there are statements by the chair, mr. cummings, and there's actual bills. and so do you have -- other then the word naïveté, can you tell me what your legal test or rule is insane that those statements you cite have control over all the other evidence, or how i
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should wait or evaluate it? >> i think it's over 300 pages this year. we have the memorandum, which we relied on which quite frankly was also the starting point. >> this as legislation by the way, the memorandum. >> legal contact. >> right. >> and i think all the comments that were made, you stack the ones that may look like they want to see whether the president is filing the law, and the other is a this really is a general concern about legislation -- >> but the other bucket has to include draft bills and bills that are passed the house. >> happy to include them because i think my pile is way higher. you said delicate. that's why the statute of the court is so important because
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these are hard questions. before the court pronounces broad rules about subpoena of the president we should -- [inaudible] >> one question i have is you say still looking for the real purpose of what this is genuine. how is that different from a search for motive which i think both parties agrees permissible? where do we draw the line between looking at the motive which i think we agree across the table versus the real purpose and use in your brief? what the distinction? >> this is a difference between what and why. there is a what question, is this a law enforcement question or investigative legislation. [inaudible] are they mad at the president? are the motivated? we're not relying on political
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motives to prove our case. >> even though what question, the sweet bring court as set on an obligation to there can be some incidental law enforcement type purpose on the way to investigating something for legitimate legislation. >> so if you both, why is it not illegitimate ledges that purpose? >> it is a primary purpose for the reasons i've articulated. >> which case is that? >> i think -- [inaudible] i think the real object here is a look at what they want, they want to see if something elite was done and it helps legislatively, maybe that would be okay, too, but that is not what this is about. >> i just want to make, let me explain to you how i think but this argument as to whether
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legislation could be had in the supreme court, legitimate legislation could be had in the supreme court test. a very generous test for the legislature. it sounds to me like you almost have to show that no law good, out of, could be related to this. this. information could not inform any proper legislation. you identify legislation that you argue and certainly raise a substantial question whether it's constitutional or not when it applies directly to the president. am i right a wrong to think your task under this test is to show that no legitimate legislation could ensue? >> i disagree. [inaudible]
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the court was really struggling with whether congress could enact legislation. the court goes through always it might be constitutional, that it can redraw state lines, probably not. the court was on its own articulating some possible legislation even now. was it enough to include herbal? if they cleared the herbal thef the no constitutional question. >> but here you have a bill passed by the house that simply adds to the disclosure requirement. that's it. that's not unconstitutional, is it? >> it is. i believe the president has complied with these laws just like the supreme court has complied with these laws. i don't think it's an easy constitutional question.
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the basic application of existing financial disclosure laws. it is not a serious question do not understand what the lead essay. >> but those are laws directly operating on officials, , but wt if congress gets to set the presidents salary? you can do mentioned during his. it's in the constitution. they couldn't pass one now that would change president trump's software this term but they could certainly say passed a law that would say starting january january 2021 there are two max out options. the president complies with compex of interest in financial disclosure laws, we think that puts you in a step up on essentially supervising the public welfare and will get salary ask. any president who does not
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comply with those requirements that were not enacting the ones that are inactive would get a a salad but it will be half that amount. any question they can do that? >> off the top of my head, unconstitutional conditions with -- >> it is not. you get to pick your salad. anyone can run and they can pick their salary based on how they behave. >> if you take the supreme court case you could submit to random breathalyzer. >> people have constitutional rights. as a presidential candidate have constitutional right to a certain salary? i don't think so. they get to set the summer. there's no dispute about that. there's plenty of legislation that could pass that they could say no government agency shall use appropriate funds to execute
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policies or programs that affected by conflict of interest with the president. that would be perfectly fine. >> i think it would be deeply controversial and automatic. >> so your view is when it comes to the president, confit of interest, nothing congress can do? that's what you say nothing congress could do regulating governmental agencies, governmental employees, or allocating salaries appropriated funds to protect the people of the united states, the public treasury from the presidents topic of interest? >> to the president, yes. by secondly, the salary shows the framers wanted to set conditions on the president morsi, they gave congress discretion. they did not put financial disclosure in text. >> let me ask you to my
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questions. one is on your clear statement argument. this is a hypothetical. if i wasn't persuaded that the clear statement rule applied, do you have any argument that the normal reading of the rule would authorize the subpoena, would not authorize the subpoena? >> can interest you in constitutional -- >> i agree with you. let's just stick with, well, either one of those. suppose i think, that's a good point. suppose i think neither doctrine applies you. hypothetical again. suppose i think neither constitutional avoidance -- you can see these rules authorize the committee to pursue this -- >> i think they do apply.
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>> why do you think they do apply to the president if the presumptions to apply? >> i think they do apply but i would say speedy hypothetical -- >> i was a the use of all, but it doesn't name the president. i don't believe the intent to include the president. >> your argument on both of these is a limit to the subpoena power. it's whether there's any power even to a oversight at all, is that right? whether this grant any oversight authority with respect to record to the office of the president, is that correct? >> yes. >> so they couldn't even send a polite letter that would say, if you wouldn't mind, it then have
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power to even look? >> not a subpoena power. >> i just asked you because the rule is about all power. sorry, i want to make sure i clearly understand argument here. if your argument that the committee on oversight has not been giving any power of oversight as to the office of the president, or is it they have only not been given subpoena power? which means they can't even look. i can't ask questions, look. >> i would object if someone said a letter that had no -- >> no, but under your theory of the rule absent this statement there is no oversight authority at all that has been conferred or invoked by congress. >> so anti, yes.
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although we -- >> i just asking which argument is. it's not confined to subpoenas. >> so let me go on to constitutional avoidance. i'm trying to understand how your theory works. you want this court to apply, to a understand what you are saying -- let's set aside the specific pieces of legislation that congress has passed here. let's just set that aside. is it your theory that the constitutional avoidance doctrine would apply if there is a constitutional doubt as to any possible action that congress could take? >> i don't think it is. if there was any doubt whether the subpoena is constitutional,
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it -- >> that docs the question. i understand the antecedent question to that is, is congress considering. we all agree congress has investigated authority and has broad legislative authority. so the question is, i thought you are doing, legislation that congress either has or is considering maybe well constitutional about what triggers the constitutional avoidance principle, right? >> one of the things, , not the only thing. >> how can we apply the doctrine to legislation, proposed legislation, it doesn't even exist? we don't know what congress will propose if it gets this information and has hearings. and congress is also sworn to uphold the constitution. [inaudible] this is literally what they are
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struggling with. we don't know what the legislation might look like. it might be constitutional. it might not. that itself triggers the -- [inaudible] >> does your position apply to presidential candidates? >> this is not a candidate. >> there's coverage of a subpoena during the time of presidential candidacy. so that's it apply to presidential candidates? >> i have not -- [inaudible] >> sure, right, and financial disclosure and filings, but then candidate trump are included within the subpoena. i just want to make sure, you are only challenging this as it applies, to the extent it seeks documents during the time he was president? >> we are challenging the
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purpose of the subpoena as being unconstitutional. if the purpose of the spin is unconstitutional speedy i'm back to the question of whether legislation could be had and there's no dispute by you, that there is constitutional applications regarding residential candidates to file financial disclosure forms, and for congress to enact obligations to file financial disclosure forms, then that legislation would be had, covered by the subpoena. >> there is no basis for the court to invoke arguments. keeping cited an entire litany of provisions of ethic in government act that my sustained legislation. >> clearly argument about the financial disclosure argument of those both -- the subpoena covers pre- and post-presidency. you also have to show, i'm asking whether you've you haver task is showing no legislation could be had as to what is
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covered by the subpoena. >> one is the subpoena covered, and the second is congress is reason for issuing. the conversation we've had, the reason for each was, there's no evidence on record -- [inaudible] the committee has relied on candid issues as a basis for being subpoenaed, you're asking about the generous standard when it comes to constitutionality starting with tobin, but it want to make another point which is, i don't believe congress gets that in the separation of powers case. when congress -- >> the supreme court said we presume would you admit action by. let's start with the presumption of legitimacy. even separation of powers.
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>> those about separation of power cases. [inaudible] >> that doesn't make it a majority opinion. >> congress gets the benefit of doubt. in every which the presumption is congress thought, whether regulating the president of the supreme court, i think it's just like you can pass -- [inaudible] whatever you say here, you -- >> but when we started with this question did you don't deny the house has this power. it's just you want them to be explicit when they are invoking it and singing up to committee. i thought i cut a clear answer from you on that. am i incorrect?
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i'm asking, okay, so you're saying, you dispute whether the house even passed the resolution written just as you want, and assuming it had good legislative, it just doesn't have the power? >> there are to my questions. >> congress does not have this power to oversee the president in any capacity? >> the legislation that is been articulated here -- >> i'm sorry, i don't want to be unfair to you at all. i am really kind understand your what your position is. i thought your starting position was we recognize that congress has oversight authority over the entire executive branch, including the president. but because particular exercises in fact, can start pushing unconstitutional faultlines, we
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are not going to assume the house invoke the power unless they say so explicitly. but they do have that power. it might be packaged wrong in a particular case, but they have out as long as it is tied to legitimate legislative and like what should the sound of the president be going forward, right? that's what i thought i was picked if it's not, if your argument is a very predicate of weather, assuming they had a laundry list of perfectly constitutional statutes and were ready to enact, they still just do not structurally have any oversight power as to this one little, this one isolate spot in executive branch called the office of the presidency. is it a or b? >> if i could state opposition to clear it up.
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does kerry have statutory authority issues? lycos to whether they can name the president, presuming the statute is everything you want to say. does the spin have legitimate let's say process? as part of the inquiry they have to show valid legislation. i'm not here today congress has no power ever against any statute. i'm saying the statute that has been proposed to, whether or the past the house and h.r. one are not valid legislation. >> so congress does have the power. you just don't -- on going, i'm giving you catch got your clear statement but it also telling you that there are laundry list perfectly constitutional legislation that reacts to presidential corruption, alleged, i'm not saying here,
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hypothetical presidential corruption. but that doesn't make that president do anything. itches regulates appropriations, salaries and agency activities elsewhere in the executive branch. does the house have oversight power over the office of president can two, would include subpoena? >> a hard question, a different question speedy you have a position on it? i told you hypothetical assumed that it is regulating appropriations for people other than the president. >> if the legislation said -- [inaudible] >> can you tighten what statute they could pass? >> anywhere in any statute -- >> imagine you have in the
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future the most corrupt president known to humankind, open flaunting only, what law could congress passed? >> i think it's very difficult to speedy you can't think of one. >> let me explain. so just look at the presidential records act. that would be the most innocuous one and didn't survive constitutional review. even their the court rained their hands about because i'll did was provide presidential record-keeping. but even there at the most gentle touch -- >> that was by the office of the presidency. i'm telling you know legislation operates on the office of the presidency. the president, him or herself. >> let me give an example. suppose as a result of these hearings congress decides to strengthen the enforcement powers of the office of government ethics. that's all they do. is that what it's called, the
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office -- >> i believe it is. >> suppose that's all they do. they give it more money and increase its authority to look at documents. things like that. that's all they do. is that unconstitutional? >> i think it's a much harder question than one presented him. >> why is it even close? >> even assuming it is constitutional, that's not what's happening. >> we don't know, that's what the point. i will be do know is one of things congress is looking at is the office of government ethics and whether it's powers, -- but is the statute the falls right within the category is being talked about? >> this gets back to where i was only about genuine purpose of the subpoena. i don't think speedy know, we're still back in which a position is. >> hypothetical, would you left arguing about the pregnancy of the subpoena?
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>> yes. the other would be whether that is the object of the subpoena. there are two theories. one is we just would want to know if the president is committing illegal acts. but we know we have to come up with some legislative thing so we'll tack this on. shelton says that's not okay. the other -- >> shelton, that's not what shelton said. you didn't quote the whole sentence in shelton. shelton said if that is legislation that could be had, then the fact that it might also be law enforcement, that's what shelton said. >> i think shelton was based on crane and crane -- >> shelton makes very clear exactly what judge rao said earlier, which is just because if congress is pursuing a legitimate legislative
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objective, is not illegitimate because some information that would be real would be relevant to law enforcement. that's what shelton says. >> i don't disagree but at the same time shelton doesn't say the committee can target the president and then hold up legislation. >> that's true, but how do you make the judgment about whether, i mean, you argue all the reason i love just legitimate -- all the reasons are just illegitimate. they didn't mention the office of legislation act. how do we disregard that? if you writing this part of the opinion how would you do that? how would you disregard all that? >> i would start with the first sentence -- [inaudible] which says we give full authority to investigate the president -- [inaudible] >> but what about the rest of the memorial says it is pursuing
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legislation? >> i think actually -- >> you -- excuse me? >> sure it does. >> 107, multiple laws and legislative proposals under our jurisdiction. >> the first sentence says full of authorities, the presentation illegal conflict of what he is competent interest, whether you accurately -- >> all those things otherwise why would it consider legislation? >> to come up with the rationale and otherwise -- >> but what i'm asking you, mr. consovoy, this is a serious question. how, what's the principal you would apply in to reach your conclusion, that is, to disregard the evidence in the
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record that -- what principle is at the says this is just a ruse? how do we do that? >> so i think it's not -- that which is overcome by amount of contrary evidence. >> you were not give me the principal. >> the principal is come come some case law which is what sources should court look to to answer the question. i would start there. is there a resolution? no. that's one answer. >> it's a different argument. let me take that argument. we've got it. >> i just falling caselaw on on where to start. >> i see. >> a committee memo which kerry took the best possible substitute. then you go to the hearings which shelton says, and other cases say -- look at other statements made by the house,
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and finally i don't think we disregard what the speaker is saying publicly. >> can you look at pending legislation? >> yes. >> all right. if we assume there was a legitimate legislative purpose did in the memo from the chairman, what would then be argument about the problems with the subpoena? >> that the underlying legislation that is being pursued as well, so they stated the purpose, so check it off the list, so you have to sell that is speedy assuming it's the real object. >> so the second question is if the legislation there .2 constitution valid. and third, that there's a connection between the two. the pertinently to the request. congress could have all through those house and there's no constitutional avoidance speedy
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say more about the last part because we talked about the first to make groupwise or no connection here in your view between the subpoena and the legislative purpose? >> take the rationale for its own -- >> start with the fourth. >> let's start with communications, notes and engagement letters. in the subpoena request. there's no pertinence there between those and whether the financial disclosure -- >> i take your point about engagement. communications and notes? we don't know what they say. if congress thinks that the president was inflating or deflating his assets, with their what to look at his medications with his auditing firm? >> if there was special counsel or grand jury semite. >> congress is tempting to determine whether disclosure laws are accurate. one issue here is are the
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adequate to capture the real value, given the test when that perhaps -- [inaudible] if congress decision whether to strengthen law turns on whether a particular individual pilots them, that's exactly what congress is not permitted to do. that is exactly -- >> whether an office in the united states government violated. >> the idea speedy that an office of the united states government violated that, is that okay? you can talk of any particular individual. i'm asking whether it's being violated by an office of united states. i'm not saying which office. saying if they frame it, i'm going after an individual, an office within the company come executive branch office and we want to see if the executive
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branch office is complying with the law. >> if congress did that it would be a different case. >> the individual is also an office, the executive branch office. >> the office of the present is not part of the executive -- >> i don't know what you mean by -- it's not an agency, i'll give you that. i'm not sure what you're think. [inaudible] >> i'm not asking about a statute i'm saying they say we want to investigate corruption in the office of the united states. you keep talking like we picked some individual off the sheet somewhere to target. they are investigating how it office of the united states government, that sounds okay to me. [inaudible] >> the other thing i wanted to follow-up on, can congress
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undertake investigation to expose corruption? or that law enforcement? >> with respect to the office of president -- >> when you keep saying they can't cross over into law enforcement, i thought that was a more categorical, they couldn't do it as to anybody. are you saying -- is that right or not? >> they could eventually. >> they can engage in law enforcement investigations of february but the president? >> taken engage in oversight of mismanagement speediest let's use my phrase, expose corruptio corruption. [inaudible] >> but they can't, they have no authority to probe to , undertaa program expose corruption in the office of the president? >> not -- [inaudible] >> medical back to something set achievements ago which i found a little stunning.
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suppose congress is worried about whether facebook and other major social media are in violation of the antitrust laws. suppose congress has the antitrust laws are adequate to do with facebook and twitter and other companies. are you telling me that congress could not have a hearing about that? if it's only question is whether facebook is complying with the antitrust laws. is that what you're saying. >> was i'm not going to answer the question directly but -- >> people can show up and i would wager that 99 times out of 100 these companies -- [inaudible] >> but that's not a answer to my question. let me go back -- it can't be,
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you're right. but if congress is interested in whether financial disclosure are adequate, for people are covered by it, including the president, wouldn't it want to look at the president financial disclosure forms? why is that irrelevant? i get your point about engagement letters. i understand that but i don't understand why congress is interested in determining whether financial disclosure laws are adequate. i take your point that maybe that all ruse, but i don't think it is. >> i think -- [inaudible] is when you target one person you should be worried -- okay? just like, take health troubles. congress has we want healthcare
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research that we want to know what average american is worth. [inaudible] >> they say we heard you might have a ticket issue. >> those are private people. we are talking about here their ability and certainly private people can do for government officials, for whose salaries are passing and salaries are paid by the people of the united states. as i don't think fair to equate the office of the president with mr. ohr mrs. smith walking down the street. >> i think -- >> private individual? how about when you become the president? [inaudible] >> but look, the question is
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whether there's any power to look at anything to expose corruption, to make wise judgments about the appropriations of funds. i think i heard you say that when it comes to the president, unlike individuals, unlike anybody else in the government, congress can get no information, and can't ask questions, ask the president. it can't look for corruption. they can't check to see whether anything is being protected properly or whether taxpayer funds are being wasted on furniture. >> many have been frustrated by -- [inaudible] whether it's the -- >> i'm taking your theory here
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that he absolutely is immune from any oversight until the next election. and if there in the second term, absolutely immune from any oversight whatsoever. is that right? is that right? [inaudible] >> what could congress do? >> i would point to a constitutional reveal. -- review. >> the one that has been raised -- >> you must have three of what can be done. you want to adopt rules we must have three about with that rule starts and where it ends. fun asking you is, name one other thing they could could do to exercise any form of oversight over, what you want to call the president or the office of the president. >> corporations. >> you've already listed that. salary? >> the power of the purse. >> that's not going to affect a
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sitting president. >> with respect, do not think i'm breaking new ground today to suggest the fight between the president and congress is most always going to be a political remedy between the branches to follow. >> you have argued a political question. >> i'm trying to argue why don't think it exists. >> all right. we will give you some of your time back. mr. leonard. >> may it please the court. indulge me for a moment come with you today, deputy general counsel, associate general counsel and associate general counsel.
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my intent is to ask my friend and number of very probing an interesting questions and akin to march through them. also i did want to start out by saying i don't get to say the street often, but, and this is one of those instances when the district court opinion is an extremely strong brief, especially when combined with the supreme court decision which answers a lot of the arguments mr. consovoy has made. >> suppose i give the district court -- suppose the district court statements that we owe some deference to cops here is wrong because those come from cases where the president is not a party. here we have a dispute between two coequal branches of government.
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and why would be give any deference to congress at all? why would want to look objective as court to determine whether congress is, in fact, pursuing legislative objective? >> because, your honor, i don't think you could change the standards the supreme court set has any number of cases, does not change just because the subpoena here is directed -- >> all the cases, all the cases, all the cases that articulate the deferential standard are cases which don't involve two coequal branches of government. and here you have two. i just don't understand why, why we would adopt that standard. i don't understand why would adopt the standard. you quoted the district court stand in the brief.
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i read it. i just don't see why, what you have the president on one side and congress on the other and you defer to one or the other. >> you would win under whatever standard. i want to give you the option. but the reason there is your power, congress has been, the supreme court has made clear is a very practical reason for that in part which is, remember the war power question to cogs is limited by the constitution itself. >> i don't mean to interrupt you but i guess i do. [laughing] i don't know of a case where that principle has been articulated in the situation
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site which is like you respond to my question, which is why would we grant that level of deference to congress when what you have here is separation of powers case? present on one side and the congress on the other. >> the clause means no matter who is on the other side, you can't, members of congress cannot question for speech or state function as legislators. >> so you're saying -- >> no, your honor. we are saying is, however, he is quite limited and it doesn't matter whether the president is on the other side. in addition, your honor speech you keep saying it but you disagreed with my statement, every case that articulate the
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deferential standard has involve separation of powers, the president versus the congress. >> i think that is correct, your honor. i'm not aware of any cases, but -- >> can i follow up? go ahead. >> go head. >> i find it difficult about this case that fits in the scenario or not that the complaint is donald j. trump, and is he here as president or easy here the same way bill clinton was in clinton v. jones? the subpoena is not -- part of the subpoena, most of the subpoena covers years covered when he was in the presidency. a lot of them come of the years when he wasn't present. on the other hand, -- i'm i nan quite sure which box he goes
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into whether goes in or out of the box. so in what capacity is he here as -- [inaudible] >> remember as some of the courts questions have revealed, one of the key points that we are making here is this is not just some sort of dispute between the president and congress. congress here is looking at all sorts of legislative possibilities, some of which might have not involve the president at all, and that's, that point cannot be emphasized enough. mr. consovoy wants to make it seem like all we're talking about here is if congress happen to pass legislation that is going to be directed at the president. that is totally wrong and, therefore, we don't think that this is a major conflict between
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the branches. there may be statutes congress would pass that might involve separation of powers concerns, and then those would have to be looked at, but at this stage of the case that's not what is involved here at all. >> let me just pursue, maybe this is what you're getting at. are you suggesting that somehow the standards we would apply here are different because the subpoena is directed -- and not directed to the president? doesn't make a difference in how we think about this case. >> was i don't think so, your honor. but what i'm saying is the difference is, as you saw, so much of mr. consovoy argument is about what congress might do with this information and he is saying they might. actually i think you think they're going to pass unconstitutional legislation so need to stop that at this stage.
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what i'm saying is that all sorts of possibilities of legislation that congress might come up with that cannot in any way involved separation of powers. judge millett, , here it does sm to be, mr. consovoy is correct, the president is the president, and what we are looking at here, some the things we're looking at here, some of the conduct happen before he was president, no doubt, a significant amount of this, what congress is looking into is for instances financial disclosure forms as president. >> but also as candidate. >> correct. so that's why -- >> presumptions of things and then. >> before, part of it involves while he's been president, and part of what congress is looking into is, will involve the presidency. so i'm not going to resist that
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i think you do have to look at this in terms of these are the records of the president. you could also say i suppose that the records that are being sought our records before he was the president, and so i think that also does have to be taken into account that this isn't just -- ..
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>> if in fact he's right. this would in fact limit the president's ability to perform his article 2 responsibilities. we would have to take that into account. >> yes, we would. the only question whether the statutes, whether congress is considering here falls into that category. >> your predicate on that? >> sure. >> does it take the president-- the president in many same way when it's directed to the third party? >> no, it does not because-- >> and it's not-- court said there's no recognized law privilege asserted here and so, and the notion that, i guess, that concerns you, on the other hand, president could have given-- hand over, here is my diary from the last 20 years, i'm giving it to you as a friend, and you go, wait a minute, that's information about me that i gave to you and i'm the
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president, there's a different-- i'm worried about this ignoring the fact that it's a third party. the other presidential interest in it-- because the president gives unprotect unprotected-- protection to a third party because it comes from the president-- >> i agree with you, judge, and you have to treat it like-- to my question, you answered it differently and now saying it does make a difrference. >> and i thought i was agreeing with-- >> i thought, for him you were-- okay. [inaudible] . [laughter]. i can r i think i misunderstood the question. >> that's okay. >> does it matter that this is
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a subpoena to a third party. >> yes. >> yes, it matters that it's to a third party, not to the president and therefore, even in clinton versus jones, where the president directly to the supreme court, the presidency, by the way, and we lost, but even there, the court -- here this would have very little impact at all on how the president carries out that function. yes, however, i think all i'm saying is, maybe i'm mishearing or misunderstanding your question is, you can't ignore the fact that what is being asked for here do involve records of the president, even though they are primarily records from before he was the president. >> just records of-- records that the president gave to a third party.
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>> exactly. >> in which he has no privilege. >> i 100% agree with you there. >> and a doctor or an attorney-clint that would be different. >> and something that the supreme court said this is not -- this is like banking records, i suppose, which we know, it's not protected by the-- >> or accountant-client records. >> these are not banking record. in the case in new york, at least there mr. consovoy argues there's the right that-- >> what about the nixon versus gsa tapes recognized as privacy of the president in his papers. >> yes, there's definitely some privacy interest, as you know. mr. consovoy says that the presidential records act is constitutional and i'm very pleased to hear that because as
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we know, before that, the -- many presidents destroyed their records and congress came in and said we're not doing that anymore. and that's an instance when congress has very significantly regulated the president in carrying out this function. >> that doesn't cover his personal financial papers. >> it includes how much it ties in with his official functions, yes. you're right, he is -- if he writes a letter to his daughter saying i hope you do well in college, under the presidential records act that is not covered. but as you know, any number of things that he's tying in, if he's saying to his aides, i'm going to lie on my financial disclosure forms and i want you all to back me up on this and in fact, help me do it, that is covered by the presidential records act. so i just want to get that out
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there. if-- i'm sorry. [laughter] >> so where does this leave us on whether there's presumption or not becauses you said, it's different, but we can't ignore. i'm not sure what that legal test is when we go to write an opinion to say it's different so we can't ignore it. what does that mean practically to how we analyze the subpoena? >> in this case, your honor, i can say practically not at all. what we have shown here is obviously a legitimate legislative purpose. there could be other cases where it would matter that it was the president. in this case it does not matter at all. >> and this argument about constitutional avoidance, that there are serious constitutional doubts or questions about the type of
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legislation. >> there aren't. >> we have to decide that, so how do we do that? -- acted unconstitutional. do we have to declare it constitutional in order to-- >> your honor, serious constitutional questions are to -- i don't believe that the serious constitutional questions requiring disclosure is unconstitutional. >> what about a conflict of interest requirement? if congress wants to strengthen? i get your point about the disclosure part, but what about the conflict of interest part. is that one-- >> no, and let me use that as a springboard for something that's key. i know your honors have some questions on this and i want to tie this down. for example, the lead here that's being looked into before
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the -- says the coherence, i could get this right, the lessor, the lessee. the coherence of a business from going business with gsa does that require the president to-- >> why does the committee need documents to answer that question? can't it just get it all from gsa? >> gsa wouldn't necessarily have the financial statements that are-- >> great. >> sorry. what would he have in his file? shouldn't everything need to be in gsa's file? >> no, a couple of things, your honor. one, and remember, i want to make sure -- i want to come back to it and-- >> i have a question about that, too. >> good. i said i have my notes and i
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want to talk about that. >> okay. >> for example, we need to know in applying for the lease for the information that was provided accurate? gsa probably doesn't have any information or go to that measures would. there's been evidence provided and i know mr. consovoy says provided by a convicted liar, there was evidence that everybody has to be concerned about, that mr. trump claims was financial statements depending on -- and we need to kn know, we hope we can get an emergency action situation to is what's happening. >> the actual situation as to what-- can you finish that statement? >> what the financial situation actually is and what he's saying when he applied. >> to the office--
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>> and second we need to know what is mr. trump's relationship with the business enti entity. gsa, might or might not have that information. >> so if it doesn't, then congress would pass a law requiring that in the future? that information in the future? >> before we even get to that question, don't we have to, under the supreme court precedence, have to have some indication from the house that they've authorized the committee here to take this action? i mean, and walk in, the courts are pretty clear, it's important not to separate responsibility for the year from investigating the actual power. so what evidence is there here that the house has, in fact, is in the committee the authority to investigate the president? >> and to answer that, i need to state one they think first. mr. trump spoke a number of
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times on statutory and i don't understand that this is nothing to do with-- >> i think he meant, that had nothing to do with the statutory, and once we all understand that. so what we know is from the-- the oversight committee is a special committee. by these rules, congress has given the oversight committee the entire power of the house, the house has given the oversight committee the entire powers of the house, the investigatory powers into the oversight matters. that is there in the rules. so, mr. consovoy answered very early on that congress could investigate the president. >> can you look at any
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historical examples where congress has investigated the president or subpoenaed the president without a full vote of either the house or senate? a resolution? >> i don't have-- >> and an example where house of congress has investigated the president without a full vote of the house or senate? >> well, remember, yes i'll give you an example. for example, my understanding of during the civil war, there was a committee to investigate the conduct of the war. and not surprisingly one of the things it was investigating was how president lincoln-- >> was there a subpoena issued to the president and call for the papers of the president in that investigation? and was that done by both house. >> a meeting of the house -- you remember, the house has changed considerably. the house now largely operates
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by committees and that is the congress-- the house has-- the committees do investigations and the committees-- >> even in the case where a committee issues a subpoena, the subpoena has been specifically issued. do you have an example where a committee has specifically issued a subpoena for the president's papers or records where they have not been specifically authorized to do so from the house or senate as a whole? >> i don't know of any right now my deputy-- >> so would you say this is unprecedented then? >> well, remember, we didn't issue subpoena to the president. we issued a subpoena to mazars. >> for the president's paper. >> and to the president by subpoenaing his accountant. >> that's different. >> they're the president's
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papers when they're given to the accountant, there's no legal privilege? >> we're looking at private citizen trump giving papers to his accountant under no privileges. mr. consovoy-- >> to investigate wrongdoing about the president as the president, right? the things that are alleged in the brief are violations of ethics in government act, violations of the emolument clause. and president. you can't violate those things if you're not the president. >> and we're also looking at the g-- >> financial disclosures. >> correct. and again, going back to -- i don't think i've ever-- i don't think we've ever encountered before an argument that congress cannot do oversight investigation of what the executive branch, which often many times is going to
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mean, things that the president is directing. who knows? anything that's important, a cabinet member is going to be consulted with. >> you can't provide a single example where the committee has this compulsory process against the president historically. doesn't this at least in a minimum rise a serious constitutional question whether or not that's permissible? >> it does not because, your honor, by the way cited president buchanan complaining that the congress was investigating him. but it doesn't, your honor-- remember, this president has done something that's not been done before because he has said, i'm not-- i'm not setting aside my business operations, a very limited amount. that has not been done about of. he put himself in this position and we can't forget that. that-- how does at that action though
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empower congress or a committee of congress to then issue process against the president? >> your question, you started out, you said it right. how does it at the house. remember, here, this committee operates with the full power of the house, so anytime we're thinking about this, we have to think of, we have to say could the house have done this. >> is there any indication on that, any indication on the ability of the house to delegate a power to a single committee. >> absolutely not, your honor-- >> and the committee to vote on the-- >> if the house can set its own rules and you know, the supreme court has said, in the nixon case -- has said, we can't examine when the house or the
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senate what they do with their own rules. now, i don't know whether, if there was something with the house that said, we're delegating all of our power to that, that might be unconstitutional and that's something whether this court could look at, i don't know. there's no question whatsoever, and no board of review the fact that the house has decided many decade ago to switch to a system where the house was a whole. it would opt each-- >> an investigative role, you mean. >> let me see if we can't get control of this. okay. as i understood our discussion about mr. consovoy, i think, i think the responsibility, we all agree, that if we're just looking at the rules, the rules are broad enough to authorize.
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his argument is that in this case, we have to apply a much more touching principle either because it's the president, clear statement, or because of constitutional. why don't you address that? because, let me ask you this. do you think, do you think that there is a clear statement requirement that these rules-- >> yes. >> why? >> because the-- we have to understand the clear constitutional power of the house to investigate from day one is absolutely clear and obviously-- >> nothing in the rules authorizes a subpoena to the president or for the president's personal, that's his argument. you said you can read the rules to allow that? >> it's a clear statement rule, means that, i assume the next
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--. >> yeah, that's my next question. >> excellent. >> a clear statement rule means before the house would issue a subpoena to a private entity. >> no, no, to the president of the united states. i'm getting there. let's make it this case. before the house can issue a subpoena to a private entity to get record both that preceded the presidency and covers the presidency, you must-- congress must, the house must say that is a rule, no such thing is required. >> tell us why. >> the clear statement rule, no case mr. consovoy cited they don't involve the house doing investigation. one. one of the main reasons they've set up a clear statement rule
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is, when legislation -- a bill was passed and it's going to regulate the president. the president's constitutional powers, by way, what the court had said. the president has to have a-- the president gets to decide do i want to veto that legislation. the real serves an extremely important purpose of allowing the president to say, whoa, wait a minute, you're applying this to me, foia or something like that, you can't do a sneak attack on the president, but this hasening to do with that. as we know, the house has been investigating presidents for ages and there's nothing that requires a clear statement rule for the house and i'll say, we're going to investigate the president. for example, there's no clear statement rule in the impeachment clause, right, an impeachment inquiry. >> that's gotten taken care of by the constitution. >> correct, but my point is
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we're not aware of any clear statement rules that will afly to the house in carrying out its-- >> this is not an impeachment inquiry. >> we're not here relying on impeachment power. i'm taking just a limited point, your honor, that a clear statement rule applies to quite correctly and makes a lot of sense for legislation. it does not apply to situations like this where the house, pursuant to its rule making authority, granted by the constitution, that the supreme court had said is extremely broad, indeed. it's as broad as the house allows to legislate. >>. >> and doesn't the court's opinion provide that kind of clear statement rule to that house rule? >> no, your honor. right, toben is where--
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first of all, the criminal, and second is where the court said-- the court says, congress has said its purpose was to look into amending the interstate compact, the interstate compact. so there the court says, that's a tough question, constitutional question. so we're going to avoid it. we don't have anything near close to that because if i could get to, remember the kinds of things that the congress-- congress could, for example, decide the ethics of their ethics, office, need more money. it needs removal protection. it needs-- >> there are some people who think that's a tricky constitutional question, including at one point, this court. >> it's not a tricky constitutional question as to whether the office of ethics
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should have-- >> i was only talking about your removal power. >> removal power, so, maybe that would be some sort of issue. in addition, congress could pass legislation involving gsa. >> again, what's your response to the judge why this case is not controlled by tobin? >> tobin was a very specific factual situation. congress said-- >> that's true of all cases. >> perfect, perfect. tobin is distinguished, easily distinguishable and begins with a t-- >> and controlled by -- why is it? >> for the reason i said. >> say it again, i missed that. >> the investigating committee said we want these materials because we want to decide whether to amend an interstate
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compact that has been approved. this court said, that's a difficult constitutional question. here you don't have any statement of purpose from the oversight committee saying, we-- what we're thinking about is making-- adding another condition to the presidency. no such thing and that's why this is nearly, at this stage, what mr. consovoy is asking to do is clearly inappropriate, all sorts of things. and the judge asked about this, i think mr. consovoy said, well, tobin is the one that sets a different standard from legislation that might be had, but that's coming from the supreme court statement. we don't care what tobin says about that. >> i have a procedural question here because we've been struggling with this, this clear statement of how it applies in the court of ar arguably hybrid, maybe not
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hybrid area. it's not raised in the court. and it's not there other than a passing reference, there's none of the citations and the development of a clear statement argument in the opening brief. so we don't have briefing from you on this issue, but i haven't heard you mention forfeiture. >> your honor, my understanding is, i don't think they ever used the statement in the court. so if this court wants to say that this argument was not preserved, we don't have any problem with that and we didn't-- >> well, beyond that-- so, a different question, what is your opinion? maybe i'm-- because you guys have much more than a-- i'm trying to figure it out. i didn't see it in the trial court and they only have the most glancing argument about this in their opening brief and i'm trying to figure out why you didn't have a heading, glancing or not. that would match it. did you not understand would
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develop that-- >> yes, obviously, primarily it had been developed in their rely brief here about of this court. . >> i'm sorry, they do have a clear statement in their ruling. >> one possibility would have been to say that argument, i wanted-- one moment, your honor-- the thing i wanted to say is, i don't believe they said clear statement, but in your reply broo he have in district court. >> talk to us about the office of the president and then clear stateme statement, you know, fair statement rule applies to the statute -- i'm not sure.
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>> again. >> your honor we address what we think is a serious argument. i believe that a clear stateme statement-- and i believe quite obviously wrong, again, the statute, the cases relies on, has nothing to do with this situation here. >> on the topic of forfeiture, could you also address the arguments raised about, that the community forfeited in the gsa and emoluments clause? >> your honor, i'm glad that you raised that. because it is-- i'm sorry to say this, it is absolutely and completely factually wrong. i don't know why they said
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this. >> if you could address their argument. >> if your honor would prefer we can file something that sets out the exact pages where the arguments are in the district court. otherwise, if you want, i can do it now. i can do it either way, whatever you prefer. >> briefly. >> okay. so. >> the letter-- >> thank you. we said, our explanation of the investigation, we said -- our position reads in the district court so that documents, number 20 at pages three and four, we describe the committee's investigation as, and i won't read the whole quote, but it talks about the committee was looking into conflicts of interest, constitutional violations and financial interest and et cetera, under at least, the management of that lease. at page 14 there, we said the
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constitutional questions and legitimate concerns of the government ethics. the constitutional questions with the emoluments clause questions in ja 369, and the district court, the district court obviously totally understood we were making these points. district court says, quote, the committee also says that the records will assist in monitoring the president's compliance with the foreign emoluments clause, unquote. so, obviously, the district court understood it. i could go on and i will do so in the letter and i again, i have no idea why they thought that this was ready. in addition, it obviously is not ready because as you well know to support a judgment as long as you're supporting the judgment on any grounds that is not to expand the record. there's no need to expand the record here at all. we're writing legal arguments, et cetera. so even if we had not addressed
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this in district court, which we did, mr. consovoy should know that we could raise it anyway. >> do you-- i'm going to ask you the same question i asked mr. consovoy. setting aside the emolument question and all that, do you think that the subpoena can be sustained just on the basis of congressman cummings work, reason, that is workilooking in the reporting of the assets of --. >> yes, your honor, we do think. >> if we thought that was adequate. >> it is adequate. >> right? >> did you say adequate? >> because the subpoena was aside, did you look at the other three at all. >> as far as we're concerned, they fully support, for example, if i could, the emoluments clause. >> well, i was asking you
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whether we had to get into the emoluments clause at all. >> you do not have to. it so heavily supports our argument. >> at the stroke. subpoena, like, for example, you mentioned the engagement lawyers-- >> engaged lawyers are important because we need to know if you're going to get the material that mazars has, it comes down to garbage in, garbage out. we need to know when mazars was engaged. what powers or responsibilities, et cetera, does mazars have. are they supposed to, whatever mr. trump gives them they are to take as a given and deal with or are they supposed to question that. and if they, if mr. trump is going to rely on what mazars
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says, does it have somewhere have to be said expressly and we were prohibited from asking questions back. so you need to know, what were the terms under which mazars was engaged? otherwise, you don't know whether what the product that mazars was putting out. whether that resumes or not. if i may, your honor, the emolument clause. a couple things, one, this is something where congress can regulate the president, it's right there in the constitution because it says the president and congress can give consent to emoluments. so, obviously, it's something that congress would legitimately want to look into. and it doesn't say, can give consent only when asked by the president. so, congress, the house needs to say, hmm, even if all of this happened, even if mr. trump is for emoluments, that's okay with us.
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and indeed, congress has legislated on what are appropriate-- what are emoluments and what aren't and indeed there are legislative proposals about that very thing. so, clearly, this is something that constitutionally congress can think about and this could be to-- >> the example historically of them, i don't know whether you call it conditional consent or whether they would direct the receipt to this particular location in the government. if they give that to the statement department. give that to the department of the interior. the theory there that that's a conditioned consent or-- >> this could be, your honor, yes. the way that congress could set up legislation, saying, first of all, congress could try to define what is a model. and this, if i may, gets to one of our most important points.
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mr. consovoy is asking you to roll out the constitutionality of the legislation, some of it, and we have no idea what it would be. if there is actually legislation, as you know, you may deference to whatever congress passes and whether, as you determined, is that constitutional. >> whether it's constitutional, of course you do. >> yes, you do that all the time. you say it's the presumption of constitutionality, and you are very interested. the supreme court, members of congress uphold the constitution. and you take into account what congress has done and you ultimately have the final say. >> right. >> but you give deference and you're interested how congress between constitutional, i wonder why. >> yeah, i agree with that. >> so, here if congress wanted to pass legislation saying here is what is an emolument, here is what isn't, even if this is an emolument, it's okay, it's
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a-- thing. congress obviously would want to find out what's going on. what emoluments are, possible emoluments are happening. >> can you just maybe draw more precise line between those legislative purposes and the president's personal financial papers? so even, you know, assuming that congress has the powers to regulate in the areas that you just suggested. right? what is the line between, you know, specific financial records of a single president, one person covered by the emoluments clause and what's the connection between those things? where do we-- where does congress need to know all the specific facts? >> and the connect is, especially with regard to the hotel, so what is mr. trump's actual relationship to the hotel, and what is going on with the hotel and what does mr. trump think those are
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assets of his? do they think they're not assets of his? >> think of those, what are the those, the income or-- >> i'm sorry. if there are things, the hotel assets, are they assets of mr. trump's and if the-- comes in, and just hypothetical the saudis come in and they say we want to rent the entire hotel for a year, and just name a price, whatever you name is fine with us, is that an emolument? we need to know what is -- what money is coming in and how does it relate to mr. trump and part of that may very well be mr. trump is saying, one of my assets is the old hotel and that's-- how would you want to-- >> and the powers determine
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that the congress was in-- >> several possibilities. congress could say, we think that this is or not an emolument. two congress could decide, is it pock for the president to do business with the government? because, remember, the domestic emoluments clause provides, a to the president and not more. if the president is doing business with you know, the defense department, let's say he owns a company that manufactures a key part for airplanes, and the defense department is purchasing those and the president says, i'm not going to do-- i'm keeping full ownership and knowledge of the company, that might be the emolument -- we need to know what emoluments are coming in, and--
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>> and something what might be determined as violation of the emolument clause, and proper hearing -- what is the legislative purpose for congress to determine that there's been a past wrongdoing? >> two things that i mentioned, one is, congress might want to try to define what is an emolument because some of these issues are difficult, right? and if the president sold grain and-- >> isn't there a statute that does that? isn't there a statute that requires disclosure, and essentially congress is -- isn't that what it is? >> should that be amended? should it be increased? should it be lowered? president trump obviously presents much more difficult issues. i've said before, no modern president has done what he's
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done. so the emoluments clause is much more important. and second, congress could decide. we think that mr. trump is doing a great job and don't want to worry about the emolument stuff so we hereby consent to the following things. absolutely clear and mr. consovoy would admit it says right in the constitution that the he think could would do that. so these are clearly things that we want to look into. >> i need a little bit of help with the time that the subpoena is covering. on the one hand, it raises the issues you talked about early, pre-presidential data, but talking about the emolument clause, i don't think this applies to candidates, the conflict of interest rules doesn't apply to candidates. that's once they take office. >> right.
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so as to those, those only kick in, only what about prior to january. 2017, and you understand the picture, and then the gs acha was in march of 2011 and the contract granted june, 2013. so, and then candidacy requires disclosure back in january, at 1-20, 14. so you've got a gap between june 2013 and january 2014 where i don't understand where there's any interest, legislative interest in getting his materials-- if you correct me, how do you explain the financial disclosure interest over this whole time period? >> and-- pre-presidential time.
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>> because when you have what obviously to be an extremely complicated financial picture, as we know, mr. trump has-- he says he's got a lot of assets and a whole -- and he has things like losses in some years that carried over into other years, maybe get written off in other years, or do they suddenly disappear for no reason, things like that. >> if he has losses that suddenly disappear in august of 2013, the gsa at that point and he's not a president-- he's not covered yet by the presidential reporting period. what does it matter-- what on earth is your interest in up, down, disappearing or whatever it does. >> what if he has losses to show up in 2013, 14, 15, 16-- >> you're going to get up to 2013 and 14 forward. >> so, what happens if it shows
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up a couple of years and drops out. shows up again, because remember, what mr. cohen said is mr. trump plays-- >> how much in and out do you have to do here? we have to have a time we look at finances and a gap there, maybe something would have popped in and out that wouldn't be covered by 2011, to mid 2013 and 2014 to 2019 where there's going to be something mysterious that happens in that six month period that won't show up anywhere else, really? >> or they show up for a while, you want to see-- it's been a while, 2014 to 2019. >> i'm sorry, you want to know, when did they start showing up, especially for complex things, and real estate assets and et cetera, when did they start showing up and when-- >> to 2011, the rational for 2011, i don't know why under that period they can't go back
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to when it was 2018 or both, for goodness sake. >> it probably wouldn't be pertinent to go back that far, but to somebody who has so mu much-- they're so complicated and losses going forward, remember, mr. trump has said he's been under audit for years. so, he himself recognizes that these are the kind of things that can carry over from year to year and here is a key thing, we need to know why they disappear and that may show up in financial things because he needs to know are there conflict of interest. is he maybe under the influence of a foreign government, a foreign state, a foreign company, et cetera. why do things show up, not show up-- >> is there any-- >> the supreme court said quite clearly, we get -- sometimes
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congress investigations run into blind alleys and we need to be able to see if this is an alley that doesn't go anywhere, okay. we look, but it didn't go anywhere, so, that's why the investigative authority is so broad and why we don't have to show-- >> how far back could you go? >> can we or did we? i'm sorry. >> i'm not wondering how far you did, i'm wondering how far you could. >> i'm-- >> that's a problem. >> can it go back to-- >> very unlikely, your honor. >> what is the rule, a rule here because you connected him to specific things and that doesn't cover the full-time period. >> as we know we think that pertinence is an easy hurdle here for the house to overcome, but pertinence--
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>> for instance -- if we were trying to get a diary from certain years old and now in their 70's, probably not. >> you're only saying probably then? >> you and i could come up with some hypothetical. today going from i'm never going to forget this and many years later that person gets killed you might say oh, that's relevant, but i don't want to say never, but-- >> a job not to say never say never, it's your job-- >> whoever seeks the diary of-- >> never have any limits on this, i thought that was your job. >> we will never seek the diary of a president from-- >> nev a lot of years. >> based on that. >> i have a question sh, the
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legislative purposes that you've articulated are very formed in the office of the president, and the subpoena seeks the financial records of the president. i guess i'm wondering from the perspective of the committee, how does the committee account for the fact it involves regulation and investigation of a department of the government and are there any ways in which the committee should treat the president different from john q public in relation a subpoena. >> i think the first question you're asking about another branch. frankly, if anything, it's the power is more, greater from the oversight committee investigating what the executive branch is doing, than a private citizen because the oversight committee-- >> it's not the executive branch, it's the president. the president of the united states. >> i thought you said the government. >> the president of the united
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states. >> i mean a part of regulation of the president, maybe including other government officials, but it's about the presidency, it's about the financial papers of the sitting president, right? >> yes. again, as i think the judge's questions brought out earlier, we do not deny that in some universe it might be that congress is using its powers to pre-vent the president from being able to do anything, to carry out his or her job. it might very well be that that would raise concerns that would reach separation of powers levels. nowhere near that-- >> is that the only limitation, a subpoena that would directly infringe on his ability to exercise the powers of the-- >> well, the president, as you know, can raise executive
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privilege or privileged communication privilege, and as you know the supreme court said it's not absolute. for instance, in watergate required to turn over records that were very much tied in with the president. >> pursuant to a grand jury subpoena. >> with the grand jury subpoena, but there were also congressional investigations going on and it was impeachment. >> and the circuit denied release of the tapes to the senate. >> and so what i'm saying is, there are certain circumstances in which presidential communication and privilege would govern, but overwhelmingly, in our view, subpoenas to the president of-- as long as there's a legitimate legislative purpose, would govern, so, yes, it's something that you would ensure taking in appropriate circumstances, once more. we're nowhere near that. >> but is the president treated
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g by a congressional committee any different from a cabinet secretary or any official within the executive branch. is the president the same as any government official? >> the president is obviously, look, said the president is unique. >> so how does the committee treat that, a subpoena of the president? >> the problem here is, as i've said, this president said basically to the american people, i'm going to make this hard for you because i'm not going to do what other presidents have done. i'm going to mix-up my personal capacity and my business capacity and keep doing that even while i'm president. and so-- >> that's alleging facts-- how did that impact with what the authority of congress is. >> at a certain point, you obviously need to do some sort of balancing. so, clearly, at some point you need to balance it because he is the president.
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but again -- this case is nowhere near what that --. >> hasn't that balance been struck in both of the supreme court precedence and the precedence of the court by at least ensuring that the full house of congress has authorized the investigation of the president. >> no, your honor. >> because you haven't come up with an example yet where it's not happened where the full house and senate has not authorized a subpoena investigation of the president. >> the full house in today's rules-- the full house would never get involved in subpoenas. congress works differently now. >> they often do still create a committee for a specific purpose to investigate a specific issue and then that committee will issue a subpoena but it's pursuant to a specific authorization. >> again, that's not how the house works anymore, and remember, only the house gets to decide that. that's the nixon tapes. the house gets to decide its own rules, as the house wants to delegate certain
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investigatory power to a committee or a chair, the house gets to decide to do that. that's not the subject for this court to get into and in addition, i think the opposite, there's no case law saying there's been a house committee exercising powers. we're not sure about that, we're going to insist that there's-- there's no case that i'm aware of that for obvious reasons. it's not a subject for the courts. once more, i have one more thing. i handled the nixon case. they are saying the senate has to sit as a jury for me for impeachment purposes. every wuensch them has to be in the jury box at all times and et cetera, and the supreme court said, no, you don't-- >> but in that case there was specific authorization from the
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senate as a whole to that committee to try the case and to gather evidence, right? it wasn't a generallylized. >> and they said that the usually committee could do that under authority. that would have been just as-- let me be clear again. this court, supreme court says that's not a subject for you to examine. that's outside the visit. i have to address one thing, had the law enforcement point. any number of things, they're involved. and the congress should look at the investigation of 9/11. they did it at the exact time that the criminal investigation was going on. nobody would possibly have said, oh egosh, that's involved
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hijacking and mass murder and therefore, congress cannot investigate. and that's leudicrous from the supreme court decisionment congress can investigate even if it's investigating the activity. but that's not a law enforcement function. the law enforcement function, it's the investigation and then they bring up prosecution. >> i just have two technical questions. number one, in your brief you say that the-- the overside committee had jurisdiction over the ethics -- but there's no citation, does that come from the rules or where does that come from? >> i believe that's-- is that the generic rule, is that 10 1-n?
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>> it's in the addendum to the brief. we preprinted the oversight-- >> it's generic, 1-n, or is there something else? >> if your honor will give me one second. >> sure. that goes through the oversight committee pursuant to a determination by the parliamentarian of the house that the oversight committee has jurisdiction over the ethics and government act. >> is that the record? would you commit it when you can? i didn't see it. is it cited in your brief?
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>> i'm sorry, what we can submit to you is material showing that in the past the oversight committee has exercised jurisdiction over the ethics and government act. >> that would be-- the last question, what is the current status of the judicial court-- last year the council agreed to --. >> i'm sorry, your honor. >> is there anything else, that's where things stand? >> correct. >> a district court order on the matter. it's-- it's pursuant to the agreement betwe between-- >> that's right, the district court denied the-- >> okay. thank you.
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so, mr. consovoy, we used up all of your rebuttal time so you can take-- >> brief, very quickly, on the application -- the question over the principles and -- is the house rules, i think we have not done much for the argument of the act provides a clear statement. in way -- [inaudible] if it had the authority to get to the president, why didn't it amend the rule to include the executive office of the president, if it doesn't reach the president, the house rules in january of 2019, if they already have all of these that they needed, judge rao to your
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point in every example we found in the house the select committees, for example, had been sent from the house of any body of congress, the house would investigate the president included everybody-- for example, the leading case-- >> do you think the clear statement could come from the house rule? >> it could. >> it could, i think that-- >> it could come from the rule. >> well, the house pass the rule, doesn't it? >> the house passes the rule, then could do it, i agree with, it could do that. on the issue of the president's ability as president -- the president gets to stand in for the person who has been issued a subpoena as 14, as if the subpoena was issued to him.
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so we have to treat this case-- any documents to anybody at anytime? >> to third party, and privilege and -- said there's no -- added it did not preempt new york state. >> new york as well as said accounting privilege. and new york said no accounting-client privilege. >> and we cite what we think is the rule. >> on the emoluments clause i think it's a great example in search of rationale. >> i'm talking about the emoluments clause, one problem he doesn't include the [inaudible] . doesn't know what legislation -- every member of the house that sued the president for
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violating emoluments clause, they said they're in powerful conflict of interest. the idea that a court searches for the real options-- [inaudible] okay. thank you. i want to thank you both for your arguments today. >> former special counsel robert mueller is on capitol hill next week testifying in back-to-back hearings about possible obstruction of justice and possible abuse of power by trump and russian interference in the 2016 election, our all-day coverage, watch on-line c-span 3, on-line c-span.org or listen with the free c-span radio app. >> the u.s. senate is about to
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gavel in on this tuesday. senators will continue work on judicial nominations this week and work a number of tax treaties. later today, they'll be voting on peter phipps to be on judge on the 3rd circuit court of appeals and work on a tax treaty with spain. live coverage of the u.s. senate now here on c-span2. the president pro tempore: the senate will come to order. the chaplain, dr. black, will open the senate with prayer. the chaplain: let us pray. answer us when we call, o god,

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