tv Trump v. Vance Oral Argument CSPAN October 25, 2019 3:09pm-4:03pm EDT
his time as a hostage and iran. >> what says in your culture that permits you to decay the guest against his will? >> at eight on presidency ronald reagan director frank, and historian craig shirley on reagan's campaign for the white house. >> reagan was in new hampshire and went 2 - one and it's a good thing that we won by such a big margin because where he spent most of our money. >> carnations passed on american history tv. every weekend on cspan3. the oral argument in trump versus vance, case to determine whether an accounting firm subpoena for certain financial records. including resident trumps tax returns. a three-judge panel for the
second circuit engage on both sides on a number of legal issues. this is 50 minutes. >> welcome to the united states court of appeals for the tenth s circuit. [inaudible] >> you may be seated. what the panel will do, we will hear the first case then we will take a brief recess and then we will hear the rest of the calendar so i will call the
calendar as a case right now and then the remaining case after the recess. trump, donald dat donald j trums cyrus vance. before i do that let me -- you can stand there. if i could let me just read as a matter of housekeeping for all concerned to just read into the record the agreement that if understand is now in place. and i'm quoting from the joint letter. which says they agree to forbear enforcement of the maser subpoena between the oral argument in this matter octobe
october 23, 2019 and 10 calendar days after this court issues the panel opinion on the following conditions.in one, any petition in this matter will be filed in the supreme court within the forbearance. in any opposition will be filed within seven calendar days from the petition. any reply will be filed within three calendar days from any opposition. should any filing date specify fall on a weekend or holiday the terms of the federal rules procedure 26 shall control. two, should a petition, they will request in his position that the supreme court hear the case in the current term in quvance will further for rare enforcement for the maser subpoena until the supreme court
either denies or issues an opinion whichever is sooner. third, a pollen twill and immediately withdraw for state in this court. so that i understand to be a joint understanding. >> that is correct. >> thank you. >> you may be seated. >> and please the court. this appeal presents two fundamental issues. first, whether thehe district court should've exercised jurisdiction or abstain out is that good. and second if the district court should've exercised jurisdiction whether validated the subpoena under the doctrine of temporaryi immunity. we believe for the reasons set forth the district court here to both question and the court should enter judgment for the president on the present record. -- [inaudible]
>> too that point, you can have all the time you need to make your point. >> as i understand your complaint you allege that you began producing documents to the das office in response to the trumpnt organization subpoena until you learned to cover the president's tax returns. it and as your adversary informs us in their brief, the trump organization has made for productions and that includes two after the lawsuit was filed. are you objecting to the entirety of the maze are subpoena or is your objection limited to the tax returns. >> we are objecting to the entirety of the subpoena.
we view the entire subpoena as inappropriate fishing expedition not meeting good faith and while the president has declined a certain immunity to invoke with respect to other subpoenas -- >> why would that pick up the organizations. >> the immunity extends certainly to the president in our view. >> absolutely use a? >> absolutely. >> which is different from the department of justice. >> i don't think there is anything between opposition eligible questions in order of the court of us. a with respect to the organizations, the organizations
are being targeted not with just respect to them but to the president's personal information to which they have possession. there has to be in anticircumvention role around these immunities otherwise they do not work. you can imagine it a multitude of scenariosos in which the true part of the subpoena just like with the mazars subpoena is personal records of theds president -- >> your ignoring the corporate form and these are entities that clearly have an existence and they operate in the conduct business. >> that is true, they are owned by the president and they do hold his personal records and his personal records are being sorted out. and this raises a broader question which therend are thins that the district of attorney could have said to make this case different and i think your question to some degree although not entirely raises some issues
the district attorney has declined to do so he has declined to say the president is not a target of the subpoena and he's declined to say they're not investigating the president these efforts and so i think that is a record in which this case arrives to the court -- >> is it your position that the other persons who may be involved in this investigative as long as their conduct also implicates the president? >> not necessarily were handling in a handicap position we not seen the declaration so we can only speculate as to who they may be and what the relationship might be to the president. but your honor, the issue is not who is being investigate beyond the president, it's a criminal process -- >> mommy ask you about the two bright absolute immunity of the president. the consensus seems to be yes
there is some immunity from the president as well seeing them as the board brief in the decisions. but does it -- they all seem to say it applies once you get to the point of indictment not before that. otherwise the united states versus nixon would be p a problm in just a subpoena was permitted in that case. how is that different from this case where jewett a grin turning not even a trial subpoena which the nixon take case. >> i agree there is a consent to surround the core idea of immunitybps c with respect -- ik it reaches back to at least indictment and thein story opinn in the fitzgerald says arrest or prosecution support. beyond that i think the board brief has a broader view. among other sources for the boardd brief was the grand
reinvestigation. and before that brief, ofth course, they cling with the vice president did not have this kind of interview. he offered reasons why that would interfere with a injury work and he says that is not true with respect to the president and that was a injury nation and subpoenas -- >> what about the moss memo. >> the moss memo seems to suggest that there are things that can be gathered while the president is still president even if the president cannot be guided inn arms. >> i don't think it suggest that those can be gathered from the president. -- what about the united states versus nixon. those were the tapes that were gathered from the president and the united state supreme court said they are to be disclosed even with an executive privilege argument. but there was no application in
presidential immunity to preindictment subpoenas in that case. >> yournd honor, on our complait which we remain as a motion we have plausibly alleged -- >> just like everybody knew in those days the ultimate target was going to be the president and everybody seems to believe that the ultimate target was president trump. and certainly walks and talks that way. >> i think of the many things, there may be a popular understanding of what was going on in nixon but supreme court was not going to allow the judicial decision to be driven by popular understanding in facn it was careful when it was across position on whether the president could be unindicted co-conspirator to preserve thed question. i don't think any opinion resolves it.
second, there was no claim like this invoked in nixon. it has developeded since then ad nixes versus fitzgerald. and they claim -- >> did they overlook this the third might be immunity or advice with the subpoena and they nixon case? >> i. cannot speak -- try think it was overlooked, maybe not. the president and other cases has not invoked it. every president will have to make his own determination about when to invoke these immunities and president nixon knows not to invoke it. the president here has as in other cases in the fitzgerald for example. third, the court was clear that there was an even more pressing need for the president to disclose a communication because there are six a moment right and that's true the birth cases will, the rights as a defendant
had taken those cases. >> they do talk about the due process and other rights of the defense in that case. the special prosecutor so it was not the defendant. >> agree. , part of the court reasoning was that there both parties that need access for the trial. but last even if this court thinks that nixon applies at all force, and we do not, this goes back to original question about the department of justice, at a minimum the nixon, and a record before the court, it is difficult to see how one page of rejected material and perhaps the courthouse but it's difficult to see how the subpoena with a decades worth of financial reports relate specifically in the targeted
fashion -- >> that's a different issue that can be addressed. you said a moment ago that is absolute and if the president were to commit crime no matter how heinous before he took office or whether he took it, he did after he took office and he could not be the subject of any investigation, that's the position. >> yes until the impeachment power and of the oversight of impeachment is the head of the constitution is clear the president like all other citizens is subject to the law and the federal government alike. the question before the court -- >> the premise is that this is the destruction to scratch the president from carrying out his duties. where is the distraction where the subpoena served on accounts. the president doesn't have to do
anything to comply with the subpoena. >> so two answers, the question is not about the subpoena, it's about whatth would happen if all the states were unleashed to engage in any kind of investigation of a sitting president. i think is difficult to sustain the proposition and i think this point was made even in the silver area where os the court was hesitant to allow states. it goes beyond one third parties of the subpoena -- >> that was one argument with the clinton versus jones with the civil suits -- >> whether that prediction was correct or not i'm not here to dispute it, i di accept it as it is. this court has to make a different category -- how is that different from federal subpoenas, the state district attorney and state attorney but why is that any
different when the state grand jury subpoena. >> because the exercises control at the end of the day over all of them and to have a centralized -- >> that may not always be true. >> again to some of the practical realities cuts both ways. that may be true but also i think the court cannot ignore the reality of the political sick consideration that would necessarily infiltrate state to engage in a broad rangingng investigation of a sitting president. >> why can we think about this case in a narrow sense, that is to say we are not confronted, we don't have to confront the question of whether the president is immune from indictment and prosecution while in office and we don't have to consider whether the president may lawfully produce documents in a state criminal proceeding. the only question arguably and
as before is whether state may lawfully demand production by a third party of the president's personal financial records for use in a grand jury investigation while the president is in office. >> your honor, on the third party issue which is the most distinguished from what i think is a paradigm case, the decision from the supreme court makes clear when you seek records from a custodian you cannot simply pretend that those are not subpoenaed ultimately directed to the party who entrusted the custodian with those records. that would allow for in the norma's loophole around the rights oft individuals and not just in this case, that would create an norma's loophole for all people who entrusted the records of custodian who want to invoke the fourth amendment rights or over privileges like attorney-client privilege. this is the law previously we are talking about in the
third-party custodian. not the law presents. >> the potential defendant who trace discussions because of privilege. why can't you do that here? >> is a dispute between the parties of whether that's available as a third party under new york law. but we are not pressing the issue here because ultimately they will have a three claim, there's no exhaustion requirement in the question for the court is not whether the president should have chosen estate form that whether he was entitled to invoke this one. we think the law is rather clear that the dispute between the federal government if you the president of the united states in the state with immunity of state process is not a case in which the court would exercise equitable power to abstain and not here case which otherwise
has a clear jurisdiction over the dispute. >> what is your response to the that the president could basically insulate himself from any proceedings by invoking section 1983 to get into federas court? >> i think anyone, not just the president can invoke any individual and be heard in federal court. they may not have a winning claim in federal court, it may be dismissed but i don't think the court has been clear to i respects, there is no exhaust requirement, that is completely clear. and second, equally clear that the anti-injunction act enhance younger do not require individuals to bring the 83 claim. -- claim? is the 1983 >> it's immunity claim. >> the president's rights are
being violated by the district attorney's office? >> the president immunity is being breached, yes. >> it usually asserted as a defense. i'm trying to get understand what the cause of action. is. >> it refers to immunity held by law. under the statute moreover the supreme court has made clear these immunities are available in 1983, it's a right held under the constitution no different than98un someone's right of the commerce clause against the state. the credit cause has been a basis in all of these are in the supreme court and i think the opinion was pretty clear that it's not going to pick and choose among constitutional right to say this one is good enough to be brought to 1983 and this one is not sufficiently important and you must be kicked out a federal court. >> how would your argument be different if this was the subpoena from a injury in the southern district of the nordic in manhattan? a federal grand jury for tax investigation, how would your
argument be different to stop the subpoena? >> i think. reporter: subtle differences in q the view it would not be entirely different. course a president has not ffinvoked with respect to federl prosecutors in this immunity is not a direct answerre but becaue those are handled properly, properly and with sensitivity to the office. this subpoena which is a photocopy of a congressional subpoena on mostly unrelated -- >> please continue. >> this is different. on the other point, iha think ts issue about control over the u.s. attorney, i think an argument could be made is not applicable here it's a different case because you might say i don't expect there to be the perforation of litigation that we think is attendant to a state subpoena and there's off loosely more history of special prosecutors and things like that. is the harder case, i think there's good arguments for immunity there as well.
but we never had to cross a bridge. >> can you explain a little bit more about what is irreparable harm that your client would suffer if financial and tax documents were disclosed to the da and the grand jury. as i understand it state and federal tax authorities already have at least some of these records so how would disclosure to another state authority cause additional harm? >> first any breach of immunity createsck a harm, the u.s. brief makes this point quite well. so we are aware of no immunity case where the court says here immunity is breached but not inoperable harm, that's in essence of immunity. no morebl than having -- for taking double jeopardy. second, i think the average
citizenn could be asked the same question. your records have been disclosed to irs why not hand them over to a injury. i think there are quite obvious reasons why a citizen does not want information exposed to a injury if they have a lawful right to not allow that to happen. third, this is unique to the president, changing rapidly, noted in our brief there is unique changes to new york law that once protected information and made it less protected and not protected at all. and lastly, it's unclear what would happen at the end of the investigation. i don't know the answer to this question under new york law but if an indictment were issued to someone else this information could be publicly exposed for the grand jury issue at the end exposing the information but i don't think there's a guarantee
the district attorney or the court is a guarantee that personal financial information will not be exposed. so collectively all of those provide ample basis for irreparable injury. i don't think those issues are necessarily life. >> i just want to nail this down, the district court says the district attorney is investigating conduct that occurred in new york state. do contest that the district attorney and the grand jury are investigating conduct that falls within the enforcement jurisdiction? >> i don't see it as material -- and to stipulate without conceding for purposes of adjudicating. another gets material to whether they have a right to seek these
documents. it doesn't answer whether they have a basis ofer federal law to secure the document. >> thank you. >> thank you your honor. >> good morning your honors. and remember colleagues today chris conroy and alan thank you and today we represent the a paly the district attorney and your county. i like to pick up where think the court started this morning and that is to put it bluntly the claims do come down to his tax returns i believe. we would not be here if we had ignored the obvious conclusion that those returns are relevant to our what our grantor is looking at. the councilil told us flatly tht he would never ever agree to produce the tax returns. so we decided an obligation to look at the facts that we would not forbear for several reasons. in these reasons to get to yourn
question about irreparable harm. first,r obviously there's no suh thing as a presidential immunity for tax returns. this is not about executive communications concerning matts of state diplomacy which was the concern central to the u.s. nixon -- >> i take it that a concern on adversary is not just with respect to the tax returns but that the subpoena copies -- the congressional subpoena which relates to things like the washington d.c. hotel where there is at least some question of what his relationship would be to the new york investigati investigation. >> i addressed two things are better than that. the first, the repeated
complaint that it was a photocopy subpoena, i think this was addressed on the record in the district court, just so it's clear. i believe this is really all the claim of harm or bad faith comes down to. as explained in the district court, the simple reason for lying on the text of the earlier subpoena from the house to the accounting firms, this is not unusual and our practice is having learned from other sources that there was such a subpoena. we decided to use thee de same language to make it easier on the accounting firm to produce the same materials they were already gathering for the house presumably and limit their ability to object to our subpoena of it being harassing or burdensome or something like that. secondly with respect to the question of within that subpoena there is a mention of hotel in d.c. for example. but as you all know, even though it's based in new york, it is
commonly investigating transactions have tentacles and impacts all over the country and sometimes extra territorially as long as there is a basis to allege there's a ground for jurisdiction on the island of manhattan and our case and in many, many cases as you all know that often happens by virtue of where the transactionstu were centered where the financial monies were exchange, et cetera, and obviously it goes without saying that the headquarters of the businesses throughout our here in manhattan. i don't think it should be a surprise that our subpoena happened to mention transactions that involve properties or other things of value outside the island of manhattan. >> is your office commit to preserving the confidentiality of any and all response documents customer. >> yes we do were obviously bound to do so by law under our criminal procedure law. >> so if congress says we want to see something -- >> we would not be at liberty to provide that and that central to
the reparable harm and measure honor pointed out, the other bodies that have received these tax returns in the first place already have their secrecy obligations. but again -- >> one of the arguments at the end of the day the documents may be publicly disclosed therefore the harm -- >> i think the short answer to that is there is no privilege for a tax return whether the president or anybody else in the country, he may be with them as embarrassing or sensitive but tax returns get subpoenaed all theen time and financial investigations and sometimes perhaps a trial that leads them to at least in part be made public or as exhibits in court and they don't understand where the centrality of the secrecy of tax returns comes from. yes we have to apply a injury,
federal and state tax authorities have their own public nation to not turn those things over publicly but an accounting firm does not have a validir privilege to interpose f a subpoena has happened for some of these tax returns. they are making this up. that's all i canan say. >> the absolute immunity from criminal trial what he or she is in office, do you agree there is some absolute immunity in a president from a criminal trial while he or she is in office? >> obviously, your honor that is not the case before us. that issue has never been decided by any court that i'md aware of, there are the olc memos out, on that and the analysis of those memos and the effect of those et cetera. so it's hard for me too say that there can be no circumstance under which case that the
president can be criminally charged or tried. i understand the sensitivity of how it would be disruptive particularly state rather than federal -- >> the president from indictment and criminal trial while he is sitting as a president let's assume for the moment that does not extend before that in the proceedings to subpoena like united states versus nixon. let's assume you can have the subpoena complied because it's not at this stage with absolute immunity kicks in of the president. how are we going to know, what to do, where are the mechanics of that. >> you get response to the subpoena and you see something that looks indictable do you then notify people were gonna seek an indictment next wednesday against the president and a new 1983 case or something else you better do it now because i'll be in indictment next wednesday.
>> understood, i think the practical answer to the question and i completely agree that's in our position that is on right at this point. given the rulings w in nixon tht there simply no basis to object at this point. whether there's immunity or not. the way it would work in a case such as ours and it happens all the time, in the long-running grand jury investigation, it's almost unheard of and i imagine it happen here for the lawyers who are representing parties who have been looked at in a injury investigation to serve cross grand jury notice under our procedural laws. i it obligates an officer covers to provide notice to the defense whenever we get to appoint an investigation where were contemplating putting charges to a grand jury for consideration as a possible indictment. what it would do here is two
things, it would give the defendant as it always does, the right to decide to testify before the injury but number two, in this case toy answer yor question it would put them on notice that the time is right if they want to interpose and acclaimed immunity from indictment based upon something in the constitution. >> let mee but, would extensios build the appropriate if the president -- if you indicted the president and he sued in federal court to enjoin the prosecution -- >> i think it would your honor, it's the same position we take right here. in the first instance at least, this is an issue -- first we dispute there is a blanket inou the immunity and i would argue that under the nixon cases it has to be a balancing and looking at the factors and circumstances but yet again we would say at the state courts under federalism are not only
required but perfectly woke capable of duty in the constitutional claim like that. >> if the presidency somehow different? >> in other words, the argument in part would be that the president is challenging the constitutionality of having to submit state prosecution and that this should be something that is resolved in a federal form and the concerns of younger extension apart are concerned about comedy but comedy washes away when there is already inherent conflict between federalhe and state authority? >> i don't want to sound
insensitive to the concerns surrounding theti office it of e presidency but the difference would be if the conduct underline that was getting rise to potential criminal charge was conduct related to the president official duties or acts in office, that i think would raisa a clause issue and i know something in the balance of factors looked at -- >> even under the current factor shouldn't those questions be resolved by a federal court? >> your honor he's inventing is the supreme sick clause issue saying he is bringing this action -- >> whether inventingng or not -- should the federal courts decide question what. >> this is an action brought in personal capacity onit private conduct and he is not allowed to turn this in to an active sovereign by saying i'm the sovereign and the sovereign is me. as long as were talking about
private personal conduct this transaction entered into larger before he was in office, i think that belongs in state court under younger -- >> let me press you again are there any circumstances that you can envision in which a president could get into federal court when there's an ongoing criminal procedure. >> yes i just at the. >> if what was being investigated his official duties, some sort of official wrongdoing i think that might amount to an extra nurse circumstance were trying to have the federal court keep the case given the federal interest of all. that is just not the case here. he is bringing this action as a private citizen which the jod says. they say affirmatively he is not bringing this in his official capacity on behalf of the u.s. government which is currently why he has private lawyers
representing him, notwithstanding in this principal brief, he does maintain he's bringing the case both as a private and is the sovereign which i don't think can be the case. i will point out all this concern about state court younger, not only the federals of concern and obligations to hear constitutional claims but also don't forget that at the end ofs the day if it does not get the relief he seeks in the courts in the state itself that they can go to the supreme court. that's a backstop when you're younger. >> i want to ask about the supremacy clause, the use of the were convicted does imply arguably that you can't bring criminal proceedings until after the impeachment process has played out.
and there is a conviction. what is your response to that? >> i understand the language and the implication of ton that agan ubat is not here, this is long settled beginning in 1807 that again implicates these olc questions for the hypothetically could be against the president while in office. i think people could argue about the implications of that language versus other provisions and again, hypothetically if you want to entertain the kind of thing you can invent scenarios where you can imagine it would be necessary or at least perhaps a good idea for a sitting president to be subject to a criminal charge even by a state while in office if he for example pulled out a handgun and shot someone on fifth avenue. what would be the impact of that, would local police be disabled from restraining such present or from processing such a person.
would we back away from an impeachment proceeding to be initiated. certainly the olc memos don't answer all the questions but i'm not sure the cause is the way to answer the questions either. >> and the department of justice brief, there seems to be differences between the department of justice decision undere position and mr. trump's lawyers position. could you speak to that. >> one i mentioned, they seem to maintaino flatly that he is not bringing this in his official capacity representing the united states. i think that's a flat contradiction that they take in terms of what capacity he is doing. he is trying to assert he's bringing as a sovereign which drags all the sovereignty principles that don't belong in a private litigation. in the other thing that is different in d.o.j. is that they
actually contemplate that the president in this position needs to respond to the subpoena or allow it to be complied with,he theybe pondered that there shoud not be a test -- >> which i think -- >> speak to that and how do you assess heightened and particularized. >> all address that. what it means when they say he has to respond by producing documents as long as some test is met. that means he's not immune from investigation and the first place that he has to comply. that's a fundamental contradiction to the absolute immunity point that is being advocated. so we have not only the nixon long line of cases standing against him but the d.o.j. is not in the position.
with respect from d.o.j. there should be a need overseen by the court, i believe that what b you're looking at is a language in nixon and there was tuition presented to the court, the first was whether the sitting president is subject to subpoena process and the answer was a quick yes on both cases. we say that in the first, that the question before the court. secondly don't forget the tapes of the presidents communication in the oval office with the top advisors over a long period of time which of course read the question of executive privilege and the question is whether the state or diplomacy or national security discussed and thatt raises the need to make sure those tapes got reviewed by a court i privilege review to make
sure those important state privileged materials were segregated to the materials that needed to be produced for the subpoena. here this is all private business transaction documents, nobody has to see -- whether there's matters of state or national security that need to be protected. there is no privilege that applies whatsoever, it's one big ball of wax and it's all or nothing for it we should get these material so we should look at it, the confidential inner hands and there is no need to have the magistrate or someone trying to oversee the production and i don't know what standard by which people would try to weed out things that are producible or not. it's not the kind of analysis. >> if we were to disagree as whether this case should go to a federal forum that is a younger
extension does not apply i think it ultimately or your view is that you can still prevail along the lines of some version of the alternative ruling -- >> asher honor, a request so there's no confusion is that this court affirm judgment on both grounds. we think in the public interest to have rulings both on the younger immunity -- extension question as real as a grounds for denying injunction relief. if younger -- if extension were not to happen we would ask the court to affirm the district court on the basis of the injunction analysis. irreparable harm as which of touched on briefly but most are partly because of the success -- >> with the district court have continuing supervision of the case in other words would we
agree is properly dismissed or stay should not dismiss because we missed steps along the way with important federal issues need to be resolved by federal judge? >> as i look at it i think everything has been briefedal ad aired on the district court certainly did not rule as a preliminary injunction or full merit based injection relief. this court upheld that decision that there may be a trip to the supreme court but i don't think the district court has to look at anything -- >> was it permanent or preliminary? >> he dismissed the complaint and i believe in turning america's decision -- they contemplated the thursday going to be any proceedings in the district court. subpoena?out the neck >> what subpoena. >> the wonder public ticket about real.
[laughter] did they file another in 1983 faction questioning. >> not if this court ruled in favor of the district court that would be a binding president. and indeed just to be clear to inquire about this as well we a are hamstrung by the lack of the documents were seeking or but it is indeed proceeding and there are in fact other subpoenas outstanding and no one should be surprised by that. we just don't think we should have her hand tight by not being allowed as we would in any other ordinary case to get some of the basic business documents that would shed light on whether criminality or not. >> this case seems bound for the supreme court. >> i think both parties see that as inevitability. >> no further questions. thank you.
>> think your honor. isaac is important to frame where we are and where my friends position is which is with the district court. there is no immunity for unofficial action of any kind the president should be indicted and arrested and convicted by a state while he's inn office. they have not rule out the president was the target of this investigation and they are shifting the ground from the immunity to the third-party doctrine of nixon versus the united states. in everything that we for this morning makes clear the president is a target and i don't think that's an issue in dispute anymore. it is clear that the district attorney just want the preside president. >> were objecting to the terrorists that is appropriate. there is an argument in my
friend has tried to explain -- >> is it your view that they're not seeking the tax returns for legitimate investigatory purpose and they're doing this to embrace the president. >> we believe there is evidence of that. and certainly in their brief to the response we got was impeachment is awkward the way we want and the president said he would disclose him and he is not in other presidents have. the policy disagreement not in the investigation. >> the district attorney from all around the country are -- that's a concern. >> i think there is incentive. i would think everyone would not act in bad faith or even when the court said this case is going to proceed but it's important that we explain to the federal court -- they play differently in a state form.
-- >> what your view on the fifth avenue, local authorities cannot investigate cannot do anything about it -- >> once a president is removed from office any local authority, this is not an immunity. >> while in office. >> there'sun a hypo, back to yor physician. >> even gathering documents that can be used later once the president leaves office, that cannot be done either. >> that cannot be done i apologize paired with respect to the president or his custodian. this grand jury is proceeding. we have not joined the entirety of a dream which is the position the president tried to take in his case were subleasing criminal process issue to a sitting president in which they have not ruled out the
investigation while comfortably with the immunity that i think has to be accepted. >> is this about the tax records? >> yes. >> it is not it is about the subpoena, the president has complied with the multitude of request from both federal state officials interrelating think your honor the other aspects of the subpoena really highlight the propriety. there is an argument based on what we seen that ten years of financial condition are relevant. if i could just make one last point, about the u.s. government's position and nixon. two points, clinton b jones answered the question about whether the president and his personal capacity is official he was represented in that case in the civil lawsuit based on a unofficial conduct for the office by private attorneys. the supreme court said the immunity doctrine in that posture. he did not prevail in the case
but he was not defeated by which he defeated the court. hashe department of justice said and i think their brief is clear on this, they are in avoid difficult constitutional questions that our primary argument raises by nixon physician might be applicable in imposing the height standard it requires given the sensitivity of the office the standard applies beyond privilege and helpfully makes clear and if you measure this and be my point, take the subpoena from a congressional subpoena and its scope apply nixon to put it into nixon and apply the standard i think it's impossible in the subpoena, the court inks for the proceedings are wanted on the basis, i don't think it is, it could remand the district court for review and to make an
evaluation of whether this is subpoena meet the heightened burden requirement in the particulars and if the court were to do that we would ask that the status quo be maintained because we are today when pressed is pretty clear there is no promise in that is all that is required to meet reparable injury even putting aside the immunity questions himself thank you yourth honor. >> thank you y both . . . commo proceeding deliberately and deliberative lee. we have a feeling you may be seeing each other again in washington. thank you for your argument. we will take a ten minute
>> c-span hosts aconversation with former massachusetts governor bill weld and former south carolina governor and congressman mark sanford to talk about their plans, strategies and why they're running against the president . will also be taking your calls, tweets and facebook comments. part of coverage live tonight at easter on c-span. once anytime on c-span.org and listen wherever you are using the free c-span radio app . politicon is live from nashville on c-span, speakers include pandit and coulter and columnist david from, former fbi director james comay and chief political analyst for msnbc and nbc news nicole wallace. political commentators james carville and sean hannity and former minnesota senator al franken. watch live on c-span anytime on c-span.org and listen wherever you are using the