tv Trump v. Mazars Oral Argument CSPAN July 14, 2019 10:33am-12:49pm EDT
>> we have to stick up for ourselves. china is a communist dictatorship. when they come to the business scene, they bring a combination of political, military, and economic tools that societies like ours do not possess. >> book tv is on c-span two every weekend. >> a three-judge panel of the d.c. circuit court of appeals heard oral argument in trump v. mazars, which concerns the congressional subpoena for president trump's business financial records. house oversight and reform committee chair congressman elijah cummings of maryland issued the subpoena in april. this is about two hours and 10 minutes. >> case number 19-5142, donald j. trump et al. appellants
versus mazars usa llp and committees on oversight and reform of the united states house of representatives. mr. consovoy for the appellants, mr. leonard for the appellee. >> good morning. >> good morning. mr. consovoy: as both the supreme court and this court -- the courts must first answer whether the committee has statutory [indiscernable]. in this case, and for the reason set forth in this court's opinion [indiscernable]. the language in the house rules is not jurisdiction to personally subpoena the president for his private financial records. foremost, in many cases, and as the office has held, statutes,
and here house rules must name the president. there must be a clear statement before their authority may reach that office. second, as in the supreme court's decision, where there are constitutional doubts, the committee's authority should be read narrowly not to trigger those serious questions. j. millett: do you dispute that the house itself has this power? mr. consovoy: it has the statuatory power. it can create whatever statuatory power it wants. j. millett: no, that it has the power to issue a subpoena, the house itself? mr. consovoy: not the constitutional power for the reason we -- j. millett: the house itself because your argument to me sounded all about the delegation of the committee not being explicit. i saw no argument in your brief that the house itself did not have this power. you just said that house had to be explicit that it was giving what it had to the committee. mr. consovoy: i'm sorry, i'm not making it clear -- as a statuatory matter, the house can pass rules that reach a
president. j. millett: including subpoena power? mr. consovoy: it could. then it would still be what is the rest of our briefing, which is the vast majority, which is whether that subpoena is constitutionally proper. j. millett: i'm sorry. i wasn't clear. just on your first nonconstitutional argument -- although -- any clear statement requiring -- put aside assume. i'm taking as given your issues about -- within the legislative wheelhouse. just to understand, i am trying to understand what your argument is. that is, yes, the house itself could issue a subpoena and we would be over on the rest of our brief with those arguments. but the house has it. it is just whether they gave it to a committee. mr. consovoy: correct. no different than in the franklin case. congress could have passed -- j. millett: well, it's quite different. j. tatel: wouldn't you have insisted that the house also speak clearly?
if the house issues -- on your theory, whether the committee issues the subpoena pursuant to house rules or the house issues -- itself issues a subpoena. your position, as i understand it, is that whichever body does it, it has to identify the president, right? mr. consovoy: correct. it is a question of clarity, not a question of power. for statuatory purposes, yes. j. tatel: can we unpack that for just a minute? there are two elements to that argument as i understand it. one is your clear statement rule. number two is constitutional avoidance, right? youlear statement, you cite rely on the supreme court's decision franklin and our decision, right? those are your two major cases. those seem different to me than this case because in franklin, the question was whether the
president is an officer and the court said we will not subject the president of the united states to arbitrary and capricious review unless the congress expressly says that is what it needs, right? in armstrong, we said that unless congress speaks clearly, we will not imply action against the president of the united states because it would "significantly alter the balance between congress and the president." this seems very different. this is a subpoena that relates to rules requiring, laws requiring financial disclosure. there is no significant altering of the relationship between the president and the congress. there is no subjecting president to arbitrary and capricious review in franklin. this is just financial disclosure, which presidents for
years have been doing. mr. consovoy: you are talking about one issue that congress has expressed interest in financial disclosure. , i am talking about house rules. the house rules don't give -- are about general authority to the committee -- j. tatel: you are not challenging the authority of the committee. you are challenging this subpoena and the subpoena seeks documents regarding the president's financial disclosures. mr. consovoy: i am saying -- no one disputed that committee power -- j. tatel: let's stick with your clear statement. mr. consovoy: absolutely. j. tatel: what do you think about my suggestion that the cases that you rely on our quite different? mr. consovoy: i respectfully disagree they are quite different -- j. tatel: but why? mr. consovoy: they are both on the same legal principle, a
referendum that i do not think anyone disputes, that any statute or house role that seeks to get to the president directly must use a clear statement. j. tatel: are you talking about george silverman? mr. consovoy: not just that. the letter said the same thing. you are focusing on the subpoena -- j. tatel: you don't have standing to challenge the house rules. you can only challenge the subpoena. mr. consovoy: i respectfully disagree. the court has a duty to read -- reach that issue j. tatel: i first. agree but isn't it a question of whether the subpoena is authorized by the rules? isn't that the question? mr. consovoy: correct, and -- j. tatel: this subpoena. mr. consovoy: this subpoena is directed at the president and the house rules do not authorize the committee to subpoena the president.
j. millett: it is not directed at the that may be a different president. question. it is directed at a third-party who happened to have documents given to them by the president. correct? whether the subpoena directly tells the president to go through files and bring us things could be different. side,nsovoy: on the legal footnote 14 answers this question. practically -- j. millett: that would be his right in the document, but it is still not the same think i just like a deposition of the president will be different that i deposition of a third-party who would be telling them what , the president said. just because you are not interfering with the day-to-day activities of the president. mr. consovoy: i think a third-party subpoena would
subpoena the president after. j. millett: are you asserting a privilege recognized by state law or common law in these documents? .r. consovoy: fear of loss we relied on that a.r. completely. j. tatel: let me pursue this clear statement. let's say you are right for a minute that we do have a clear statement rule. this committee has jurisdiction over the ethics of government act, right? and the ethics in government act expressly covers the president of the united states right? , mr. consovoy: it does. j. tatel: why isn't that the clear statement? mr. consovoy: the clear statement must be in the rule itself and that is how the question is stated. j. tatel: in your view, what is missing is the ethics in congress act is not expressly listed in the house ruling? is that it? mr. consovoy: i would resist that, as well.
this is an easy thing for the house to do but a very important thing. expand on that for one moment. the power here is not the power to subpoena documents. this same rule the committee relies on is the power to -- gives them the power to subpoena testimony. this court would have to say that the house of representatives as a body is it is clear has delegated one person, the chairman of the oversight committee authority to , subpoena the president -- j. tatel: the only question before us is this subpoena. that is it. that is the only question before the court right now. i hear what you are saying, but i just don't understand why -- let's assume you are right, that the house rule is excessively broad in other respects. try it this way. suppose for example it expressly permits the oversight committee to subpoena the president.
would you be making the same argument? the subpoena or the house rules? mr. consovoy: if the house rules specifically cite the president, we would not be making this particular -- j. tatel: that is my point. that is all we are talking about. the only question is the legality or authorization of the committee to issue this subpoena. it has nothing to do with testimony or any other aspects of the house rules. mr. consovoy: well, in particular, the legal question issue applies to scenarios that can be avoided in answering the question. mr. consovoy: your view, then, is that any action against any president of the united states requires a clear statement with impact on thehis president? that is your position? so what do you do with the language i cited in both franklin and armstrong?
mr. consovoy: i think franklin and armstrong raise concern that proves the more narrow point and other statutes made as well. there was five usc, 535 b, any -- which required any executive official to report wrongdoing to the attorney general. as the attorney general argued in thatlegal counsel case they had to name the president to include -- it didn't matter. 1958was the opinion from cited by dillinger in 1995. applied by this court and the supreme court. in every case, every time, you have to name the president. i think this is a good rule. it allocates the congress, makes its intentions clear which is the basis of rules. we want to know for sure the house of representatives wants to revoke a constitutional --
j. millett: if you could move from the clear statement rule to the constitutional avoidance argument you make. as i understand it, you are not asserting any kind of executive privilege or immunity so maybe you could say more about what specifically is the constitutional interest of the president in this case? mr. consovoy: i'll take the most obvious and most controversial in order. whether there is a legitimate legislative purpose is a constitutional question. if the court holds in these cases that the subpoena lacks legislative purpose, that means the subpoena exceeds congress's constitutional power. every subsidiary question we raise in this case goes to whether there is legitimate purpose itself. the biggest among those in this case is whether there can be violated the just elation on
conflicts of interest questions questions. those are hard. they are serious, they are important separation of powers questions. j. rao: what are those separation of power interests raised here? they are unique to the office of the president, is that correct? mr. consovoy: yes, so the president is different than all other constitutional offices. it was created by the constitution just like justices of the supreme court. congress has a special ability take forl, regulate -- example, the presidential record which is much less intrusive than what we are talking about here. j. tatel: you cited concurrence. that was his view. the majority view about this issue set forth in nixon 2, a statute disrupts the proper
balance between the court and prevents the executive branch from accomplishing its constitutional approach. it is not just interference but prevents. that is the majority of the supreme court. mr. consovoy: could prevent. j. tatel: how could financial disclosure requirements prevent the government, a president from fulfilling his constitutional -- mr. consovoy: 100,000 pages of financial disclosures once a month to discuss them. j. tatel: that is interesting but those aren't the statues congress is considering. j. millett: the only one that has any work to do here is mazars. the only one whose time is testifying here is mazars. the subpoena.for congress has to have a
legislative purpose -- j. millett: this does not address judge tatel's question azars turning over documents already in its possession impedes the president's execution of his own duties? mr. consovoy: they are two different questions. question one is how does subpoena -- as i was saying, the president's special -- j. millett: you responded with a hypothetical instead of how the subpoena would prevent the president from executing -- exercising his powers. how it would impede upon his time and energies? mr. consovoy: this is not the beginning of the end, there are going to be all sorts of questions that arise with -- j. tatel: this is the subpoena
against the president -- the court dealt with that issue. mr. consovoy: it straddles the line, judge tatel. congress is asserting a right of oversight over the president. this is a subpoena to -- j. tatel: that is a good point, yeah. mr. consovoy: your point made in the case is exactly my point. j. tatel: that is a dissent. it was a dissent. mr. consovoy: it applies universally, which is when it comes to the president, the person in office are one and the same -- and the office are one and the same. j. tatel: that is the burden -- j. rao: many of the arguments raised on behalf of president trump relate to the unique constitutional status of the presidency and infringement on
his authority. why is the department of justice not here participating to protect the office of the president, because that is the primary basis of your argument? mr. consovoy: when they subpoena to the president's personal accountant, naturally the --sident's personal lawyer j. rao: in that case, the department of justice participated in addition to private attorneys. if the argument here are really about the office of the presidency, why is the department of justice not participating? j. millett: they showed up in clinton versus jones, as well to represent the office of the presidency. mr. consovoy: i can only speak for my participation and not others. j. tatel: your companion argument here is not just that this interferes with this as a constitutional requirement to the presidency, right?
your argument also is the legislation congress is considering on the ethics constitutionally adds to the qualifications to be president? mr. consovoy: correct. in two ways. an easier one is the conflict of interest rules. the idea that congress can make the president -- hold money in a certain way or businesses or anything like that would be unconstitutional. j. tatel: what about financial disclosure? mr. consovoy: no different. j. tatel: why? mr. consovoy: for reasons articulated in the letters of -- and the chief justice's letter to congress there is a strong , argument that there is a hard-line drawn on the presidency just like this up in -- the supreme court justices. j. tatel: i understand the general language, but before and
after the ethics of government act anybody who was , constitutionally eligible to run for president over 35, naturally born citizen, has not already served two terms anyone , who meets those can run for president before and after. it is not like u.s. term limits where the states try to limit the terms of a member of congress. i don't see why this limits anybody's ability to run for president. does it? mr. consovoy: no differently than conflict of interest. j. tatel: the conflict of -- two prevent a fromdent from actually either running because he has a conflict of interest or would prevent him from exercising the
power of the presidency. i'm just asking about the disclosure. so you talk a lot about conflict of interest in other aspects of this but suppose we just look at the fourth justification in cummings' letter, just the fourth one, which is whether the president of the united states accurately reported his finances to the office of government. just that. if i think that is -- setting aside, looking beyond the question of the house rules and whether that authorizes us. if i think there is no constitutional problem there, do we have to deal with all four aspects in cummings letter or is focusing on one enough? mr. consovoy: let me give you two answers.
there is an argument to be made that just one is enough. we've disputed that one is legitimate and need to address that but there is a question of what the real object, which is plain language. if you pick one out you have to , say it is actually the reason they are doing it based on public record. j. tatel: i completely agree with that. explain to me if i am looking at just this one, that is adequacy of the financial disclosures, why that is not congress pursuing a legitimate legislative agenda? mr. consovoy: because it is law enforcement. j. tatel: why is it law enforcement? mr. consovoy: the committee is searching for illegalities. j. tatel: isn't that what congress always does if it seeks to amend a piece of legislation? if congress thinks there is a problem with the federal communications act, or some aspect of it, isn't it going to
on whether copies are complying with it and whether they need to amend the statute? mr. consovoy: if there was a -- if they were generally looking at companies. if there was a general forward-looking industry in the market, i would have a harder time saying this is a law enforcement. when you are hyper focused on individual and say over and over again that what we have here is proving illegal conduct and the speaker of the house says i want to see the president in prison, -- j. tatel: he also says, cummings' letter says pursuing legislation. there are several bills pending. it is not like the statements you are the only ones. pointthe same letter i was quoting from goes on to say they need this information to consider legislation, right? mr. consovoy: if i could answer and reserve the balance of my time.
one, what is shown is you can't say we want to investigate an that might be say for legislation. that could be done at any time and any place. second, i think the statement to the committee, supreme court v sanchez, it was determined the court does not have to be naive. the court does not have to accept these sorts of here is a legislation argument and -- j. millett: first of all, there is legislation, bills that have gotten to the house and draft bills pending and we are supposed to say that is all a ruse? mr. consovoy: the ones pending mostly deal with issues -- j. millett: the ones that deal with ethics, contracting, there are draft ones and ones that have been passed, correct? correct?
passed that house a financial disclosure and contracting? on your naive theory, we would have to say that is all a ruse. mr. consovoy: what i didn't get to say is whether there is a genuine connection -- j. millett: how would you say it is not genuine? we'll give you plenty of time. mr. consovoy: i would say let's look at what the committee members say. j. millett: is that what our task is? don't we have to look at everything -- j. tatel: if you look at just what they say, congress and cummings in this letter and other communications in this case say they need this information to evaluate to pursue legislation. he says it many times and -- so
hr 1, which has passed the house, i think, would amend the ethics in government act to include closely held corporations. that is directly employed. hr 706 would require presidents and candidates to submit their these bills have passed the house and they are directly related to the subject of the subpoena. do we just ignore those? mr. consovoy: one, we think that underlying legislation -- i have given my best on that. i think nevertheless, the court has an obligation to look at how this all started. whether it was issuing a subpoena and their own
memorandum says they are looking to see whether the president engaged in illegal conduct. what is the answer? there is legislation out there but the court says look at the real object. j. millett: 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 politicians have made and let's look at the ones before the subpoena issue, not after, to support your cause. but then there are statements by the chair, mr. cummings, and there are actual bills so do you have -- other than naivete, can you tell me what your legal tester rule is in saying that statements you cite have control over the other evidence or how i should evaluate it?
mr. consovoy: i think it is the appellate, over 300 pages this year, we have the memorandum -- that was what this court relied upon, which i believe the referendum also says is the starting point. we had the statements made -- j. millett: which has legislation, the memorandum. mr. consovoy: but -- i think in the comments made and you stack up ones that look like they wanted to see the president violating the law and the others where they say this is really just a general concern about legislation -- j. millett: the other bucket has to include draft bills and bills that have passed the house. mr. consovoy: happy to include them because i think my pile is way higher. you said delicate. that is why the statutory issue is so important because these are hard questions.
before the court pronounces rock rules about subpoena of the president, we should make their -- or the house has authorized the committee to subpoena them. j. rao: what justification is there that we should look for the real purpose and how is that different than a search for motive each both parties agree on? where do we draw the line between looking at the motive of the committee, which is off the table, and the real purpose as you say in your brief. mr. consovoy: a difference between what had why. there is a what question, is -- a laww or a investigation or a just slated inquiry? where is the evidence and what is it? legislation or for law enforcement? was it clearly motivated? was it because they are mad at the president? those are off the table. we are not relying on political motives to prove up our case. j. rao: even though a question, the supreme court has said on a
number of occasions there can be some incidental law-enforcement type purpose on the way to investigating something for legitimate legislation. j. millett: if you have both, why is it not a legitimate legislative purpose? mr. consovoy: it is a primary purpose test. again for the reasons i've articulated -- j. tatel: which case is that? mr. consovoy: i think the real object here, if you look at what it is -- they want to see something illegal was done and if it helps legislatively, maybe that would be ok to but that is not what this is about. j. millett: i just -- let me explain to you how i am thinking about this argument as to whether legislation could be had in the supreme court, legitimate legislation could be had in the supreme court test.
it is a very generous test of the legislature. it seems to me you would have to show that no law could come out of -- be related to this information. it could not inform any proper legislation. you identify legislation that you argue and raise a substantial question over whether it is constitutional or not when it is applied directly to the president. taskright to say that your is to show no legitimate legislation could ensue? mr. consovoy: i disagree. this case -- the court was really struggling with whether congress can enact legislation.
it goes through all sorts of legislation that might be constitutional. could be go across state lines, the congress but was on its own over -- even that wasn't enough to clear the hurdle. there would be no constitutional question. of precedentmatter in this court answer the question. j. tatel: here you have a bill passed by the hospitably as to the disclosure requirement. that is it. that is not unconstitutional, is it? mr. consovoy: congress explaining how these issues have been untested. what you just spoke about is based on existing financial disclosure laws.
it is not a serious question -- >> those are laws to let -- directly operating on officials but what if congress gets to set the president salary. correct? during't diminish it term, correct, but it is in the constitution. and they couldn't pass one now that would change his salary this term, but they could say pass now a law that starts january 2021, there are two salary options. the president complies with conflict of interest and financial disclosure laws, we think that puts him a step up on efficiently supervising the public welfare and we get salary acts. any president that does not comply with those requirements
acting, the now en ones we have enacted, he will get a salary but it will be half the amount. any question they could do that? mr. consovoy: off the top of my head, constitutional conditions would have to be -- j. millett: it is not, you can run and you can pick your salary. mr. consovoy: if you take the supreme court case, or you could submit to a random breathalyzer. j. millett: people have constitutional rights. does a presidential candidate have a constitutional right to a certain salary? i don't think so. they get to set the salary. there is no dispute about that. there is plenty of legislation they could pass and say no government agency shall use appropriated funds to execute policies or programs affected by conflict of interest with the
president. that would be perfectly fine. mr. consovoy: i think it would be people he controversial and constitutionally problematic. j. millett: your view is that when it comes to the president's conflict of interest, nothing congress can do regulating governmental agencies or employees or allocating salaries or appropriating funds to protect the people of the united froms, the public treasury the president's conflict of interest. [indiscernible] j. rao: that is why you say nothing congress could do regarding governmental agencies,
employees, allocated salaries or appropriate in funds to protect the people of the united states, the public treasury from the president's conflict of interest? mr. consovoy: yes, but secondly, the salary shows the framers wanted to set a condition on the presidency to give congress discretion. j. tatel: let me ask you about the -- two questions. one is on your clear statement argument, this is a hypothetical, if i wasn't persuaded that the rule applied, do you have any argument that the normal reading of the rule authorize this subpoena, would not authorize the subpoena? mr. consovoy: can i interest you in constitutional -- j. tatel: no, i agree with you. let's just stick with -- either one of them. suppose i think that is a good point. suppose i think neither doctrine applies here. again, hypothetical suppose i , think neither constitutional avoidance or click statement applies. do you concede than that these rules authorize the committee to pursue? mr. consovoy: i think they do apply. j. tatel: i understand that -- >> why do you think if the presumptions don't apply?
mr. consovoy: they do apply but i think -- j. tatel: the hypothetical -- mr. consovoy: i would say the use of all, but it doesn't name the president. i don't intend to include the president. j. millett: to your argument on both isn't limited to the subpoena power. just whether there is any power even to have oversight at all, is that right? where did this grants any oversight authority with respect directly to the office of the president. is that correct? -- acouldn't even send public committee couldn't even send a polite letter that would say, if you wouldn't mind, they don't have the power to even look?
mr. consovoy: not the subpoena power. j. millett: i just asked you, because the rule is about all power. i went to make sure i fully understand your argument. is the committee on oversight has not been given any power of oversight as to the office of the president? that is one, or is it they have only not been given subpoena power? >> the former, i apologize. >> which means they can't even look. they can't ask questions, look. mr. consovoy: i would object if someone said a letter that had no compulsion -- j. millett: but under your theory of the rule of the acts of this clear statement, there is no oversight authority at all that has been conferred or invoked by congress. -- j. millett: i'm
asking what your argument is. it is not confined to subpoenas. j. tatel: let me want to -- let me go on to constitutional avoidance. i am trying to understand how your theory works, you want this court to apply. i understand the way you are saying -- let's set aside the pieces of legislation congress has passed. let's set that aside. is your theory that the constitutional avoidance doctrine would apply if there is a constitutional doubt as to any possible action that congress could take? is that your point? >> i don't think it is. if there was any doubt whether the subpoena is constitutional, it can -- j. tatel: that ducks the question.
i understand that. the antecedent question to that is congress considering -- we all agree congress has investigative authority has brought as its legislative authority. my question is i thought you were arguing legislation with congress either has pastore is -- has passed or is considering may well be unconstitutional and that is what triggers the constitutional avoidance principle. mr. consovoy: one of the things, not the only thing. j. tatel: how can we apply the doctrine to legislation, propose legislation that doesn't even exist? we don't know what congress will propose if it gets this information and has hearings. congress is also sworn to uphold the constitution. mr. consovoy: that totally answers the question for us. this is literally what tobin was struggling withn. we don't know what the
legislation might look like. it might be constitutional, it might not. j. millett: does your position apply to presidential candidates? mr. consovoy: this is not a candidate -- j. millett: there is coverage of a subpoena during the time of presidential candidacy, so does it apply to presidential candidates? >> we have not researched that issue. >> sure, and financial disclosure obligations and filings but then candidate trump included within the subpoena so i just want to make sure. you are only challenging this as it applies -- to the extent it hims documents covering while he was president.
mr. consovoy: we are challenging the purpose of the subpoena as being unconstitutional. if the purpose was constitutional. j. millett: i'm back to the question of whether legislation could be had and if there is no dispute by you that there is any constitutional implications requiring presidential candidates to file a financial disclosure form, and for congress to enact obligations to file financial disclosure forms, then that legislation would be had, covered by the subpoena. mr. consovoy: arguing there is no basis for the court -- opinion cited in -- provision of ethics in government that might sustain this legislation. j. millett: argued about the financial disclosure arguments, the subpoena covers the presidency and you also have to show -- i'm asking if you've shown -- met your task of showing no legislation could be had as to what is covered by the subpoena.
mr. consovoy: two different issues. one is the subpoena covered and the second is -- in the conversations we have had, the reason for issuance, and there is no evidence on record -- the committee has relied on candidate issues as a basis for being subpoenaed. you are asking about the generous standard when it comes to constitutional legality starting with tobin, but another point, i don't believe congress gets that in a separation of powers case. when you are talking about congress -- j. millett: we presume legitimate action by congress. we start with the presumption of legitimacy. even the separation of powers. mr. consovoy: those are not separation of power cases.
mr. consovoy: in an area in which the presumption is congress -- whether the president or the supreme court, it is a statue just like these tested against the justices as well. whatever you say here -- j. millett: we started with this question. you don't deny the house has this power. it is just you want them to be explicit when they are invoking it and send it off to committee. i thought i got a clear answer from you on that. am i incorrect? so i'm asking -- so you are saying, you dispute whether the house
even passed the resolution written just as you want, assuming it had good legislative -- it just doesn't have this power? mr. consovoy: there are two questions. j. millett: congress does not have this power to oversee the president in any capacity? mr. consovoy: the legislation that is been articulated here -- j. millett: i don't want to be unfair to you. i am really trying to understand what your position is. i had 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 that can start pushing on constitutional faultlines, we are not going to assume the house invoked that power unless they say so explicitly.
but they do have that power. it might be packaged wrong in a particular case, but they have that power as long as it is tied to legitimate legislative ends like what should the salary of the president be going forward. right? if your argument is the very predicate of whether 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 isolated spot in the executive branch called the office of the presidency. is it a or b? mr. consovoy: so, if i could state our position and who believe will clear it up. the first question for us is does the committee has statutory
authority to issue the subpoena, and that goes whether they can name the president. presuming the statutes is everything i wanted it to say, then does the subpoena have a legitimate legislative purpose. as part of the inquiry, they have to show valid legislation could be had. i am not here to say congress has no power ever against any statute that touches the presidency. i am saying that the statute proposed here and passed are not founded for reasons stated. j. millett: congress does have the power -- what i am trying to do is understand -- giving you that you've got your clue statement. i'm also telling you that got a laundry list of perfectly constitutional legislation that reacts to presidential corruption, alleged. i'm not saying here. hypothetical presidential corruption.
it doesn't make the president do anything. it just regulates appropriations, salaries, and agency appropriations elsewhere. does the house have one oversight power over the office of the president and two, would it includes subpoena? do you have a position on that? mr. consovoy: i would have to know what the legislation says. j. millett: i've told you the hypothetical assumed that it is regulating appropriations for people other than the president. mr. consovoy: if the legislation said -- no appropriated to any agency -- j. millett: can you tell me what statute they could pass? mr. consovoy: any statute -- j. millett: imagine they have in the future the most corrupt president known to humankind,
openly flaunting -- what law could congress pass? mr. consovoy: it is very difficult -- j. millett: you can't think of one. mr. consovoy: i would like to explain. just look at the presidential record. that would be the most innocuous one and has survived. even there, the courts bring rung their hands about it because it required presidential records but even there, at the most gentle touch -- j. millett: that was by the office of the presidency. legislation you no operates on the office of the presidency. j. tatel: 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 is all they do. is that what it is called? suppose that is all they do. they give it more money, and
they increase its authority to look at documents. that is all they do. is that unconstitutional? mr. consovoy: i think it is a much harder question than the one here. j. tatel: why is it even close? mr. consovoy: even assuming it is constitutional, that is not what is happening. j. tatel: we don't know, and what we do know is one that congress is looking at is the office of government ethics. there is a statute that falls right within the category that is being talked about. mr. consovoy: back to where i was earlier about the genuine purpose of the subpoena, i think -- j. millett: we are still at what your position is. j. rao: in the hypothetical, would you be left arguing about the pertinencey of the subpoena. mr. consovoy: the other would be whether that is the object of the subpoena. there are two scenarios.
one, we just really want to know if the president is committing illegal acts, but we know we have to come up with some legislative thing so we will tack this on. shelton says that is not ok. j. tatel: shelton, that is not what shelton says. you didn't quote the whole sentence of shelton. he said if it is legislation that could be had, the fact it might also be lawful -- >> but that was making the point about what the real object was. j. tatel: shelton makes very clear exactly what judge rao said earlier. that is that just because -- if congress is pursuing a legitimate legislative objective, it is not illegitimate because some of the information that would be revealed would be relevant to law enforcement.
that is what shelton says. mr. consovoy: i don't disagree but at the same time, shelton doesn't say the committee can target the president and hold the president for non-legitimate reasons. j. tatel: that's true but how do we make the judgment -- you argue these reasons are illegitimate but if you just look at the straight record, over and over again, they are talking about legislation. they passed legislation. how do we disregard all that? if you were writing this part of the opinion, how would you do that? how would you disregard all that? mr. consovoy: i would start with the first sentence. j. tatel: what about the rest of it where it says it is pursuing legislation? mr. consovoy: i think actually -- j. tatel: you, excuse me?
>> 107, madison forms, multiple laws and proposals under our jurisdiction. mr. consovoy: the first, the purpose says -- the president engaged in illegal conduct, has conflict of interest, or inaccurately -- j. tatel: all those things have to do with legislation otherwise, why would it consider legislation? mr. consovoy: to come up with a rationale -- j. tatel: but what i am asking you, mr. consovoy, this is a serious question. what is the principle that applies to disregard the evidence in the record? let's say this is just a ruse. how do we do that?
mr. consovoy: i think it is not that we disregard the evidence but that it is overcome by a mountain of contrary evidence. >> you are just stating a conclusion. mr. consovoy: -- the principle comes from case law, which is what sources -- to answer the question at all. j. tatel: that is a different argument. let me take that argument. we've got it. i see. i see. mr. consovoy: if you take the memo, which fairly took a best possible substitute. then you go to the hearings, which shelton and other cases say -- other statements made by the house and finally, and don't
disregard with the speaker is saying publicly. j. millett: can you look at pending legislation? mr. consovoy: yes. j. rao: if we assume there was a legitimate legislative purpose stated in the memo from the chairman, what would then be our argument about the problems with the subpoena? mr. consovoy: the underlying legislation being pursued, as well. they stated the purpose and checked that off the list. j. rao: assuming it is the real object. mr. consovoy: the second question is if the legislation they are pointing to constitutional or not. third, there is a connection between the two. that there is pertinence to the request. and if congress cleared all of those barriers and there is no
constitutional avoidance -- j. rao: say more about the last part because we talked about the first two. why is there no connection here in your view between the subpoena and the legislative purpose? mr. consovoy: there are -- j. tatel: start with the fourth. mr. consovoy: let's start with communications, notes, and engagement letters. in the subpoena requests there is no pregnancy there between --se and whether the j. tatel: no communications and notes? we don't know what they say. if congress thinks that the president was inflating or deflating his assets, when we look at his communications with his auditing firm?
>> with respect to the office -- you can't -- keep saying they can't do law enforcement. are you saying -- is that right or not? >> they get a much more generous run. >> they can engage in law enforcement investigations, everybody but the president? >> they can engage in oversight and mismanagement. my phrase, please, expose corruption. but they can't probe, undertake a probe to expose corruption in the office of the president? >> let me go back to something you said a few minutes ago which i found stunning. suppose congress is worried about whether facebook and other
social media in violation of the antitrust laws. are the antitrust laws adequate to deal with facebook and twitter and the other companies, are you telling me congress could not have a hearing about that? if it is facebook and the only question is whether they are complying with antitrust laws? is that what you are saying? >> i'm not going to answer your question directly. people can show up. i have not checked, but i would wager 99 times out of 100. it can't be, right. [indiscernible]
>> if the congress was interested in whether financial disclosures are adequate, including the president, wouldn't they want to look at the financial disclosure forms? why is that irrelevant? i get your point about the case law. i still don't understand why congress is interested in determining whether the financial disclosure laws are adequate. i take your point. but i don't think it is. >> i think with the case would , that when you talk to one person, you should be worried that it is a person. take health care laws. congress says, want to know what
the average american is worth. if they say that mr. smith we , heard you might have had a medicaid issue. >> those are private people. we are talking about here, the ability, and certainly for private people, we can do for government officials. the salaries are paid by the people of the united states. i don't think it is fair to equate the office of the president with mr. or misses smith walking down the street. how about maybe when you become the president, that you are going to be in some issues with the other political branch? look. the question is whether there is any power to look at anything to
expose corruption. to make wise judgments about the appropriation of funds. i think i heard you say that ,hen it comes to the president unlike individuals, anybody else in the government, congress can get no information. cannot ask questions to ask the president. it can't check for corruption, can't check to see whether anything is being protected properly. whether taxpayer funds are being wasted. >> i have been frustrated. whether it is the agency. >> one thing that requires a statement, your theory that he is absolutely immune from any
oversight until the next election. if they are in a second term, immune from any oversight whatsoever. is that right? is that right? what can congress do? i would like another example. >> the one that has been raised -- >> you must have a theory about what can be done. what i am asking you is to name one other thing they can do to exercise oversight. whether you want to call it the president or the office of the president. >> appropriation. the power of the purse. >> that is not going to affect a sitting president.
>> i don't think i am breaking new grounds to suggest the fight between the president and congress is mostly a political remedy between the branches and not a judicial -- you have not asked a political question here. >> i am trying to argue why don't think it fits. we will give you some of your time back. mr. leonard. leonard: may it please the court. the general counsel. indulge me for a moment the deputy general counsel. if you would indulge me for a moment. my intent is to ask my friend a
number of probing questions. i intend to march through them. i wanted to start out by saying i don't get to say this very often. this is one of those instances where the district court's opinion is an extremely strong brief. especially when combined with the supreme court position. which answers a lot of these questions. >> the district statement, we owe some deference to congress is wrong. those come from cases where the president is not involved. we have a dispute between two branches.
eferenced we give any d to congress at all? why would we want objectively as a court, whether congress is pursuing this objective? >> because i don't think it would change the standards the supreme court has set. >> all the cases all the cases that articulate the deferential standard are cases which do not involve two branches of government. i just don't understand why wouldn't we stop that. i don't understand why we would adopt the standard. you quoted the district court, saying you didn't agree. it jumped out at me as i read it. i just don't see why, when you have the president in one side and the congress on the other,
you would defer to one or the other. >> your honor we would win under , whatever standard. your power and congress, the supreme court has made it is clear. it is a practical reason for that. which is, remember, the more power to question the congress is limited by the constitution itself -- >> i don't mean to interrupt you. i don't know of a case where that principal has been articulated. i would like you to respond to my question, which is why would
we grant that level of deference to congress when what you have here the separations of power. the president on one side and the congress on the other. that is all i am asking. >> no matter who is on the other side, members of congress cannot question their functions as legislatures. >> so no review here at all? >> what we are saying is it is quite limited. and it doesn't matter whether the president is i on the other side. in addition -- that youep saying , disagree with my statement.
it involves the separation the , president versus the congress. >> i think that is correct. >> can i follow up? difficult about this case whether it fits into that scenario are not is that the complaint is donald h trump, is he here as president or as clinton versus jones? the subpoena is not to him. mazars, and part of the subpoena most of the subpoena is assuming his presidency, a lot of the years covered are when he was not the president. on the other hand, i am not quite sure which box it goes in. what capacity do you see here?
>> thank you. remember, as some of the questions have revealed, this is not some sort of dispute between president and congress. congress is looking at legislative possibilities. some of which might not involve the president at all. that cannot be emphasized enough. he wants to make it seem like all we are talking about is if congress is going to pass legislation directed at the president. that is totally wrong. therefore, we don't think this is some sort of conflict between the branches. there may be statutes congress
could pass that would involve the separation of concerns. those would have to be looked at. that is not what is involved. maybe this is what you are getting it. are you suggesting somehow the standards don't apply because the a subpoena is directed to the neighbors and not the zars andted to the ma not the president? does that make a difference how we think about this case? >> i don't think so, your honor. what i am saying is the differences as you saw, are about what congress might do with this information. actually i think he is saying they are going to pass constitutional legislation. so you need to stop that. what i am saying is there are
all sorts of possibilities that congress might come up with that do not in any way involve separation of powers. it does seem to me the president is the president. what we are looking at here, some of the things we are looking at here, happened before he was the president. what significant amount of congress is looking into are the financial disclosure forms as president. >> also as a candidate. >> correct. part of it involves while he has been president. and part of what congress is looking into involves the presidency. i am not going to resist i think you do have to look at this in terms of the records of the
president. you could also say, i suppose since many of the records that are being sought are before he was the president, so you have to take that into account, that it isn't >> >> that is what i'm am trying to figure out. do we turn it on and off? is there a president somewhere? >> you can't ignore this is the president. that is one of the arguments he was trying to make. i do not think it is a good one. he's trying to say, well if , congress is doing things to interfere with the president's ability to carry out his job, maybe that would have -- there would have to be some sort of special concern. >> isn't that true? if he is right, that would limit the president's ability to perform his article to
responsibilities. we would have to take that into account. >> yes, you would. >> then the question is whether the statutes -- whether congress is considering falls into that category. >> does it interfere with the president in the same way when it is directed at a certain party? >> it does not. hasnd the supreme court said there is no client privilege. the notion that concerns me, presidents could hand over, here is my diary from the last 20 years. i am giving it to you as a friend. if someone subpoenaed that, wait a minute, that is information about me that i gave to you, and i am president -- i am worried
about ignoring the fact it is a third party. you can't suggest because the president -- he loses his protection when he hands it to a third party and he can't touch it because it came from the president. [indiscernible] >> it does make a difference. >> i am sorry. i thought that was the answer i gave. i thought we were agreeing. [indiscernible] >> i am sorry. i think i misunderstood the question. does it matter that this is a
subpoena to a third party? yes. it matters it is to a third-party party, not to the president. therefore even in clinton versus jones, where it did involve the and thecy directly, justice department was there, and we lost. but even there, the court said -- here, this would have very little impact at all on how the president carries out his functions. however i think all i am saying, maybe i am misunderstanding your question, you cannot ignore the fact what is being asked for here does involve records of the president. even though they are primarily records from before he was the president. >> records the president gave to a third party.
>> exactly. >> for which he has some privilege. >> i 100% agree with you read >> if there was a attorney-client privilege, it would be different. >> the supreme court said, this is like baking records. we know it is not protected. in the deutsche bank case, there is an argument there is the weht to -- a statute, that don't even have here. >> what about the nixon tapes which recognizes privacy in terms of the president and his financial papers? >> there is definitely some privacy interests as we know. the presidential records act is constitutional. i am pleased to hear that. as we know before that, they , destroyed their records.
congress came in in the wake and said, we are not doing that anymore. that is an instance when congress has significantly regulated the president carrying out his functions. >> that wouldn't -- >> it could depending on how much it ties in with individual functions, yes. you are right. if he writes a letter to his daughter saying, i hope you do well in college, that is not covered. as we know, any number of things he does that tie in, if he is saying to his aid, i am going to lie on my financial disclosure forms and i want you to back me up and help me do it, that is covered. i just want to get that out there. >> i'm sorry.
so where does this leave us on whether there is presumptions or not? because we said it is different, but we cannot ignore it. i am not sure what that legal test is when we go to write an opinion to say it is different but we can't ignore it. what does that mean practically to how we analyze the subpoena? >> in this case 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. >> what do you do about the constitutional avoidance, there are serious questions about the type of legislation. how do we do that?
he said that government act is unconstitutional. we have to declare it constitutional? what do we do? >> serious constitutional questions are to be avoided. i do not believe that that isuires disclosure -- unconstitutional. >> what about the conflict of interest requirements? i get your point about the disclosure. what about the conflict of interest requirements? >> in part -- no. let me use that as a springboard. i know u.s. some questions about this. i wanted to tie this down. example, one of the things being looked into by this this prohibits a
can get this right, it prohibits a government official from doing business with gsa. does that legitimately applied to the president? we think it does. >> why does the committee need documents or resources to answer that question? can't it just get it all from gsa? >> gsa would not necessarily have financial statements, et cetera. >> wait. i'm sorry, what would they not have in their files that would relate to the gsa? things, one, and i want to make sure to come back to this. >> i have a question about that, too. >> good.
i have it in my notes with a big star. applyingo know, with to the lease, the information that was provided, was it accurate? gsa probably doesn't have any information. as we know, there is evidence that has been provided evidence everybody has to be concerned mr. trump plays with financial statements. he has been doing that. we need to know or we hope we can get a sense of the actual situation. >> before you go on, actual situation as to -- >> what the financial situation actually is. he is saying -- >> to the post office.
>> exactly. and we need to know what his relationship is with the business entity signing the lease. gsa -- >> if it does not, congress would pass a law. before we get to that question, don't we have to have some indication from the house that they have authorized the committee to take this action? the court said clearly it is important not to separate the use of responsibility for investigative power. what evidence is there the house has given the committee the authority to investigate the president? >> to answer that, i need to say one thing first. , andoke a number of times
i don't understand that this has nothing to do with statute. that this hasnt nothing to do with the statutory power. soe we all understand that, what we know is from the rules, oversight, congress has given the oversight committee the power of the house. i meant the house, the entire powers of the house. investor corridor -- investigatory powers into oversight matters. he answered very early on congress could investigate the president. >> can you point to any historical examples where congress has investigated the president or subpoenaed without
a full vote of either the house or senate? or resolution? >> i don't have off the top of my head -- >> a single example where a house has investigated the president without a full vote? i can give you an example. my understanding during the civil war, there was a committee to investigate the conduct of the war. not surprisingly, one of the things it was investigating was how president lincoln -- >> there was no subpoena issued to the president. was that done by the full house? it was a committee of the house. remember the house has changed , considerably. considerably. the house now largely operates by committees.
the committees do investigations. >> >> even in the case of committee issues, they have been specifically authorized by the house. can you provide an example where a committee has issued a subpoena? for the presidents papers or records where they have not been specifically authorized to do so as a whole? >> i don't know any right now. >> would you say this is unprecedented? >> we didn't issue the subpoena to the president. it is not a subpoena to the president. by subpoenaing his accountant? >> there is no legal privilege? >> it was given to the
accountant. the main thing we are looking -- given to his accountant under no privileges. >> it to investigate wrongdoing of the president as the president, right? they are violations of the ethics in government act. violations of the emoluments clause. you can violate those things if you are a private citizen. >> also looking into whatever -- >>ne in order to get financial disclosures during candidacy. i don't think i've ever -- we have ever encountered an argument that congress cannot do oversight investigations of the executive branch, many times
will often mean things the president has directed. anything that is important, a cabinet member is going to be consulted with. >> you can provide an example where a committee exercised this type of compulsory process against the president historically. isn't that -- doesn't that raise the constitutional question about whether that is permissible? >> it does not. cited president buchanan, it does not. this president has done something that has not been done before because he has said i'm not disclosing and i'm not setting aside my business operations. positionmself in this and we can't forget that. >> how does that action and power congress or a committee of
congress to than issue compulsory process against the president? remember here, this committee operates with the full power of the house, so any time we have to think about -- we have to say -- >> is there any limitation on the ability of the house to delegate its power to a single committee? delegate the full authority of the house to a committee? do, it the house can sets its own rules. the judgeurt has said ultimately cannot -- said we can't examine when the house and the senate, what they do with their own rules. i don't know if there was
something that the house said we are delegating all of our power to that one member that might be unconstitutional. i don't know. no question whatsoever and no court could review the fact that the house has decided many -- it would operate by -- >> and investigative role you mean. getet me see if we can't some control of this issue here. ,s i understood our discussions if we just look at the rules, the rules are broad enough to authorize -- his argument is in this case we have
searching much more principle. because of the president or because of constitutional law. why don't you address that? think there is a clear statement requirement? >> yes. >> why? > we have to understand the clear constitutional power of the house to investigate from day one is clear. >> nothing in the rules authorizes a subpoena to the president or the presidents personal material. that's his argument. you say you can read these rules to allow that. --if the clear stated rule >> that is my next question.
you can start there if you want. >> before the house can issue a --poena to a private entity >> it is the president of the united states. >> before the house can issue a subpoena to a private entity to get records and covers the presidency, you must -- the house must state that into rules and we don't have that here. no such thing is required. no clear statement rule, -- they this cited don't involve the house doing investigations. one of the main reasons of my --erstanding why the courts when legislation, bill is passed
and it's going to regulate the presidents constitutional powers , the president has to have a warning the president gets to decide do i want to veto that legislation. the rule serves an important purpose of allowing the minute,t to say wait a you are applying this to me? can't do a sneak attack on the president. this has nothing to do with that. the house has been investigating presidents for ages. there's nothing that requires a clear statement rule for the house. we are going to investigate the president. for example there's no clear statement rule and the impeachment clause -- impeachment inquiry. >> that is a job taking care of by the constitution. >> my point is we are not aware
of any clear statement rule that would applied to the house carrying out -- -- i was making a limited point, your honor and clear statement rule applies to legislation.ly for it does not apply for situations like this where the house, pursuant to its rulemaking authority granted by the constitution, the supreme court has said is extremely broad, as broad as the houses power for legislation. tobin is -- it was where the
voted.aid, the court congress has said its purpose theto look into amending interstate prop act. the court said that's a tough question. constitutional question so we are going to award it. we don't have anything close to that because remember the kinds couldngs -- congress office of ethics government ethics needs more money. it needs removal protection. >> a very tricky constitutional question. whether the office should have more money.
removal power, may be that would be some sort of issue. in addition, congress could pass legislation -- >> once again, what is your notonse to why this case is controlled by tobin? was very specific factual situation. >> that is true of all cases. >> perfect. easily -- distinguishable -- why isn't it? >> for the reason i just said. >> well >> say it again. ,ongress said the investigation we want these materials because we want to decide whether to amend an interstate compact that had 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 what we are thinking about is making, adding another condition to the presidency. that is why this is clearly at this phase, clearly inappropriate. all sorts of things. tobin is the one set the different standard from legislation that might be had. courts the supreme statement so we don't really care what tobin says about that. >> i have a procedural question because we have been struggling with this. a clear statement of how it applies, this was not an argument raised in district
court. other than a passing reference. citations and developments of a clear statement argument in the opening briefs. we need briefing from you on this issue. i have not heard you mention forfeitures. don'tunderstanding, i think they ever used -- if this court wants to say the argument was not preserved we don't have any problem with that. >> what is your opinion? to -- i did not see it in the trial court. only the most glancing arguments about this opening briefs. i was trying to figure out why you did not have a heading that matched it. not --id
have addressed it in your briefs. >> i believe the statement will have clearly stated. have nothing to do with the situation here. forfeitureopic of could you address the arguments briefs -- gsa and emoluments clause? >> i'm glad that you raised that. this,rry to say absolutely and completely factually wrong. i don't know why they said this. > you could address their argument.
>> exec pages where we made arguments in the district court artifice. if you want, i can do it now. whatever you prefer. >> briefly. the letter too. of theexplanation pagestee's investigation, -- i and four we describe won't read the whole quote but talks about the committee looking into conflicts of interest, constitutional ,iolations, financial interests ongoing management of that lease . at page 14, constitutional
questions and legitimate concerns about government ethics. constitutional questions where the emoluments clause questions in ja 269. district court understood we were making these points. district court says the committee also says the records will assessed in monitoring the president's compliance with the foreign emoluments clause. obviously the district court understood. i could go on. why they thought this was. knowdition, as you well support the judgment that as long as you are supporting the -- thereon any grounds is no need to expand the record. legal arguments, et cetera. even if we had not addressed this in district court, which we can raise it anyway and
this court can affirm on those grounds. >> i want to ask the same question. setting aside the emoluments question and all of that, do you think just on the basis of congressman cummings -- looking into the reporting of assets to .he office of government ethics adequate. that was we thought the subpoena was just fine. do we need to look at the other three at all? concernedas we are they fully support. the emoluments clause.
>> i was asking whether we have to get into the emoluments clause at all. >> you don't have to. it so heavily supports our argument. the engagement letters. >> the engagement letters are very important. we need to know if we are going ,o get the material masers has it comes down through garbage in, garbage out, we need to know engaged, whats responsibilities -- are they supposed to, whatever trump gives them they take as a given and to deal with? or are they supposed to question that? if mr. trump is going to rely on asars says, doesn't have
-- otherwise you don't isw the product masars putting out. is puttinguct mazars out. this is something where congress can regulate president right there in the constitution. consent ton give emoluments. obviously it is something congress will legitimately want to think about and look into. it does not say can give consent only when asked by the president. even ife needs to say all of this happens, even if mr. us.p -- that is ok with on what has legislated
are emoluments and what are not. there are legislative proposals about that. thatly, this is something constitutionally based congress -- or directonal consent -- give that to the department of the interior. >> it could be. the way congress could set up legislation. , ifress could try to define i may this gets to one of our idea what ito
could be. payhere is legislation, you deference to whatever congress >> whether it is constitutional? >> you say there is a presumption of constitutionality and you are interested. anre is of congress take oath to uphold the constitution so you take into account what congress has done. you ultimately have the final say clearly. but you give deference and you are interested. so here, if congress wanted to pass legislation saying here's what is emoluments and here's congress obviously
would want to find out what's going on, what emoluments are possible and happening. >> can you draw a more precise purposes and the president's personal financial papers assuming congress has the power in the areas you suggested, what is the line between specific financial records of a single president -- whatust one person is the connection between those things? why does congress need to know all of those specific facts? >> connections with regard to the hotel. what is mr. trump's actual relationship to the hotel? and what is going on with the hotel and does mr. trump thing those are assets of his or not assets of his.
>> what is the those? .> i'm sorry the hotel assets, are they assets of mr. trump's and if the saudi's come in, just hypothetical the saudi's come in and we want to rent the entire price,or a year name a whatever you name is fine with us, is that emoluments. we need to know what money is coming in and how it relates to mr. trump. mr. trump saying one of my assets is the old post office -- >> how it a statute affect that problem? if congress determined the president was in violation? thinkgress would say we
-- congress could decide is it ok for the president to do business with the government. -- ific emoluments clause the president is doing business department,ense owns a company that manufactures and thert for airplanes defense department is purchasing those and the president says i'm keeping full ownership and knowledge about this company, that might be a violation. we need to know what are mr. trump's relationships with these claiming. what is he
>> all the examples you gave are what might be a violation of the emoluments clause so why would that not be something a proper inquiry and impeachment hearing? what is the legislative purpose for congress to determine there has been a past wrongdoing? >> two things i mentioned. congress might want to define what is emoluments because some of these issues are difficult. >> isn't there a statute that does that? a statute that requires disclosures -- president trump obviously i don't know any modern president who is done what he has done. emoluments clause is much more important. as i said, congress could
decide. we really think mr. trump is doing a great trial so we hereby consent to all of the following things. in theely clear constitution that congress could do that. clearly, these are things you would want to look into. >> i need a little help tracing .he time of this subpoena , presidentiald status the thing you are talking about, the emoluments clause. i don't think this applies to candidates. the conflict of interest rules do not apply to candidates. , those only kick in
-- what legitimate interest in records do you have prior to january 2017? gsa, march 2011 and contract release was granted june 2013. at minimum you have a gap between june 2013 and january 2014 where i don't understand why there's any interest legislative interest in getting these materials. how do you explain the financial disclosure interest over this whole time period? have what when you obviously will be -- we know mr.
andp has a lot of assets many entities. he has things like losses and some years that carry over into other years. maybe getting written off in other years. or do they suddenly disappear for no reason. >> if you had losses that suddenly disappeared in august , he's not even covered yet by the presidential reporting period. what is your legislative orerest in assets going up disappearing or whatever he does? > he has losses that show up in 2013, 14, 16 -- >> you will get up to 2013 and 14 forward.
>> what happens if it shows up a couple years and drops out, shows up again? >> you have>> to show at the time when we get to look at his finances that there is a gap that is going on. maybe something would've popped in and out that wouldn't be to may 2013 and 2014 to 2019, but there's going to be something mysterious that happens in the six-month period that won't show up anywhere else? or things may show up for a while. >> 2014 to 2019. >> dealing with complex things. when did they start showing up? the rationale for 2011 -- i don't know why they can't go back 20 was 18 for goodness sake.
> it probably would not be pertinent to go back that far. much --body who has so so complicated and losses going forward -- mr. trump has said he has been under audit for years. he himself recognizes that these are the kinds of things that can carry over from year to year. that may show up in financial statements because we need to know are there conflicts of interest. is he may be under the influence of a foreign state, a foreign things et cetera why do said quiteeme court clearly congressional investigations we need to be
able to see if it is an alley that does not go anywhere. why the investigative reporting is so broad and why we don't have to -- >> how far back could you go? i want to know how far you could. it would depend on -- >> back to when he started his first business? >> very unlikely, your honor. >> i'm trying to settle a rule here. you've connected him to specific things and that does not cover we think-- >> pertinence is a very easy hurdle for the house to overcome. ,, -- if we tried to
you've articulated -- 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 that this does investigationtion of a coequal department of the government. are there any ways in which the committee should treat the president differently from john q. public in relation to a subpoena? >> i think the first question you're asking if its investigation of another branch, frankly, if anything, the power is more, greater when the oversight committee is investigating what the executive branch is doing than a private citizen. > it's not the executive branch, the president. the president of the united states. is regulationtion
of the president. maybe including other government officials but it's about the president. the financial papers of the sitting president. >> yes. questions brought out earlier, we do not deny that in some universe it might be that congress is using its powers to prevent the president from being able to do anything to carry out his or her job. it might very well be that would raise concerns that would breach a separation of powers. we are nowhere near that. >> is that the only limitation, a subpoena that would directly infringe on his ability to exercise -- >> the president can raise executive privilege.
as you know, the supreme court has said it is not absolute and so for instance, there was tied in withrds the president. >> pursuant to a grand jury subpoena. >> but there were also congressional investigations going on. impeachment -- >> denied release of the tapes to senate. >> what i'm saying is there are certain circumstances in which privileges were governed. in our view, subpoenas to the is adent, as long as there legitimate legislative purpose, would cover. we are nowhere near that. >> the president treated by a congressional tri committee any
differently from another government official? is the prism of the same as any government official? >> the president is unique. >> so how does the committee treat your account for that? subpoenaing the president? has basicallyent said 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 by business capacity and keep doing that even while i'm president. >> how does that impact with the authority of congress is? > at a certain point you need to do some sort of balancing. at some point you need to balance. this case is nowhere near
-- >> the supreme court precedent and the president by the court by ensuring that the full powers of congress have authorized investigation of the president? you have not come up where an example yet where the full house or senate is not authorized a subpoena or investigation of the president. house never gets involved in subpoenas. congress works differently. >> they often do still create a committee for a specific purpose to investigate a specific issue and that committee will issue a subpoena pursuant to authorization. >> that is not how the house works anymore. only the house gets to decide that. the house gets to decide its own rules. the house wants to delegate certain investigatory power to a
committee or a chair, the house gets to decide to do that, not subject for this court to get into. opposite, there's no case law saying that when a house committee is exercising its powers we are not sure about that we will insist -- there is no case i'm aware of that says that, for obvious reasons. not a subject for the courts. judge nixon was saying the senate has two is said as it jury for impeachment purposes. everyone of them has to be in the jury box at all times. the supreme court said no. >> in that case there was specific authorization from the senate as a whole to the committee to try the case and
gather evidence. specific authorization from the full senate. it was not under some generalized authority. said -- agreedte with the judiciary committees, -- thisld have been court, supreme court says that is not subject for you to examine. outside your lame. tonow i'm going to have address one thing. the law enforcement point. any number of things congress investigates involves criminal activity. congress did a massive investigation of 9/11. the exact same time the criminal investigation was going on. nobody possibly would have said a lot of this involves hijacking
and mass murder so therefore congress cannot investigate. investigate even if --means it is investigating a law enforcement function, you do investigation and bring a prosecution. i had a few technical questions. say thebrief you oversight committee has jurisdiction over the ethics and office of government ethics. ?oes that come from the rule where did that come from? --i believe >> is that the generic rule? >> it is in their roles and jurisdiction.
oversight --the or is there generic something else? >> give me one second, your honor. that law goes through the oversight committee pursuant to a determination by the parliament terry to the house that the oversight committee has jurisdiction over the ethics and government act. > when you submit it? brief?n your
>> we can submit to you materials showing that in the past the oversight committee has exercised jurisdiction on the ethics and government access. is the current status of the subpoena in the district court? >> i'm sorry. isis there anything -- that where things stand? ,o district court order on that pursuant to the agreement -- denieddistrict -- soused up all of your time
-- >> very quickly. upon the application making the -- it is the house rules that matter. we can point to something -- if the committee thought it had the authority to get to the present why did not just amend the rules to include executive office of -- and every example we --nd it tells us the house
matters why the statement will exist. notice he president on -- > do you think the clear statement could come from the house rule? it could come from the rule. the house passes the rule. >> i agree it could do that. on the issue of the president's -- as if the subpoena was issued. we have to treat the case -- at
-- conflicts of interest. -- idea that courts >> thank you. >> democratic presidential candidates are campaigning throughout new hampshire this weekend. c-span has live coverage today at 1:15 eastern from guilford, new hampshire with california senator kamala harris. live coverage of candidates from new hampshire on c-span. watch any at c-span.org and listen with the free c-span radio app. newsmakers, jim bridenstine talks about the apollo 11 moon landing 50 years ago this week. looks ahead to u.s. plans to
return to the moon and to go to mars. and discusses president trump's goal to develop a space force. newsmakers at 6:00 p.m. eastern. you can watch online or listen at our c-span radio app. president trump and house speaker nancy pelosi exchanging tweets after the president criticized some house democratic women for speaking out about some of his policies. the president tweeting, so interesting to see progressive democrat congress women who originally came from countries whose governments are a complete catastrophe. the worst most corrupt and inept anywhere in the world, if they even have a functioning government at all. now loudly and viciously telling the people of the united states, the greatest and most powerful nation on earth how our government is to be run. why don't they go back and help
fix the totally broken and crime infested places from which they came? >> speaker pelosi replying when americanump tells four congresswomen to go back to the countries he reaffirms his vision has always been about making america white again. our diversity is our strength and our unity is our power. with jeff huntd here to talk to us about the state of conservatism and the upcoming western conservative summit. good morning. >> good morning c-span nation great to be with you. host:host: tell us what the centennial institute is and what the western conservative summit is. guest: sure. i think tank housed at colorado christian university and the western conservative summit is a big event we host each