Courthouse Steps Decision: Trump v. Mazars USA and Trump v. Vance

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:   Welcome to a special Courthouse Steps edition of The Federalist Society’s Practice Group Teleforum conference call as today, July 9, 2020, we discuss Trump v. Mazars and Trump v. Vance. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

Please note that this call is being recorded for use as a podcast and will likely be transcribed in the future. It’s also open to the press and open to the public.

 

We’re very pleased to welcome to the Courthouse Steps Teleforum Mr. Devin Watkins. He’s an attorney at the Competitive Enterprise Institute. As our guest, he’s going to give his opening remarks of 10, 15, perhaps 20 minutes talking about both cases. But as always, we’ll be looking to the audience for questions, so please have those in mind for when we get to that portion of the program. With that, Devin Watkins, the floor is yours.

 

Devin Watkins:  Hi. Glad to be here. So both of these cases dealt with the Trump tax documents and the authority to subpoena those documents. But they’re in two different contexts. The first is a grand jury subpoena in a criminal investigation, and the second is a congressional subpoena under their authority. So I would like to talk first kind of generally about both cases, and then I’ll get into the specifics of each of the cases.

 

So in both of these cases, the majority opinion was decided by Chief Justice Roberts. They’re both 7-2 opinions in favor of judgement. Although, in one of the cases it was more like 5-2-2 on the actual reasoning of the case. I thought, overall, my impression was that these were very ground in the original public meaning. They specifically talked about things that occurred right at or near the Founding and how the Founders dealt with these kind of questions and then used that information to help resolve these subpoenas that are before the Court today.

 

Both of these subpoenas are rather unique. They had never come before the Court before. And because of this, the Court was not directly resolving these subpoenas. Instead, it was more setting up the framework under which the subpoenas would be resolved. And that way the lower courts would have more information and understand how to consider these subpoenas in this case and in future cases. In considering the views that were rejected by the Court, it’s worth noting that both the opinion of the personal lawyer of the President was unanimously rejected and the opinion of the House of Representatives as to his authority was unanimously rejected. So in some ways, both of them lost in one case or the other.

 

The first case I’ll consider is Trump v. Vance. This is the grand jury subpoena case. In this case, the New York local prosecutor convened the grand jury and was looking into not necessarily Trump in particular, although his tax records were definitely evidence that was subpoenaed, but also various organizations around the Trump -- related organizations that he was looking into potential criminal violations under state law. So the Trump personal attorney argued that the President, as a part of his office, was completely immune from any criminal process at the state level.

 

At the federal level, he could be criminally prosecuted potentially, or at least investigated and subpoenaed, but not at the state level. For that, the state would have to wait until after the President leaves office. And then he could be criminally prosecuted, even for things that occurred while he was president.

 

So the question here is does a state have to wait until after the President gets out of office before it can even investigate? We’re not talking necessarily about indictment but investigations and especially criminal process like the subpoena. To a certain extent the President’s personal attorney recognized that they can look into things and talk to people but that they couldn’t use criminal process to enforce things like subpoenas while the President was in office.

 

The majority, the concurrence, and dissent all rejected the idea that the President was absolutely immune from criminal process while he’s in office. The majority, which was the Chief and the four more liberal justices, said that there is no heightened standard for subpoenas to the President -- that he has the same standard that has to be met for a subpoena as any private individual. However, if there is interference with certain Article II interests -- it has to be very particularized, but if there’s specific objection based on this subpoena somehow interfering with his ability to carry out his office, then he can raise those before the Court.

 

And the Court also, I think, understood that local judges and state court may be hostile to the interests of the President. And so if there are actual problems that interfere with his Article II interests, the Court did recognize that he could sue, not just object under state law -- but he could bring a federal lawsuit in federal court to try to stop that because it would be a violation of federal law to interfere with those Article II interests.

 

Very important to the majority was the decision by Chief Justice John Marshall in United States v. Burr. In that case, the Chief Justice, John Marshall, had required President Thomas Jefferson submit to a subpoena and turn over evidence. And Jefferson recognized the authority of the grand jury and, in that case, the criminal proceeding to require that evidence be turned over in that, even by the President of the United States. And so that was very strong evidence of the original understanding of the Constitution that criminal process does apply even to the President.

 

There was a concurrence that in some ways disagreed with the majority more than the dissent, which is rather odd. Usually, the majority and the concurrence are closely aligned, but the concurrence may be slightly different. And this concurrence was by Justices Kavanaugh and Gorsuch.

 

They argued that the kind of normal standard of any subpoena that anyone has to follow isn’t appropriate for the President. They would have applied the higher standard from Nixon, the cases, that said there has to be some type of demonstrated specific need to be able to subpoena that President in this way. And they thought that should be applied to all of the papers of the President, even personal documents like this case.

 

The majority recognized the demonstrated specific need but limited it to where there’s a claim of executive privilege. In that case, to overcome the executive privilege, which is the communications between the President and his close advisors as to how the government’s going to be run -- to overcome that claim of privilege, the majority recognized the demonstrated specific need requirement. But as to the personal papers of the President, which don’t directly implicate the Article II interests, they applied the same standard that applies to everyone.

 

The dissent in this case also rejected the personal attorney of Trump as to whether the President is entirely immune to grand jury criminal subpoenas. But they would have remanded -- they would have vacated the lower court opinion and remanded back to the lower courts to consider whether these specific subpoenas interfere with the operations of the Article II branch such that they should be suspended. And it seemed clear to Thomas and Alito that they were definitely leaning that these were going too far -- that these particular subpoenas should be stopped.

 

While the majority seemed more neutral in that, you know, these seem perhaps inappropriate, but the specific objects will need to be considered, the dissent seemed more hostile to these specific subpoenas as probably going too far. So while they would have vacated and remanded to consider those specific Article II objections, the majority would have affirmed and remanded to consider specific Article II objections. Those are differences, but they’re actually very tiny differences in some ways between the majority and the dissent, which is rather odd because the concurrence kind of said an entirely different standard should apply.

 

So that was the grand jury subpoenas. I’ll be moving on now to the congressional subpoenas. In this case, there were three different committees of the House of Representatives that had subpoenaed these tax records. So the question was does these committees have the power to subpoena those records? Is there something stopping them? Are they going too far?

 

So the committees themselves articulated a very broad standard as to what the House of Representatives could subpoena. In many a ways, while they put up kind of a smokescreen of, yes, acknowledging there has to be a legislative purpose, they then went on to define a legislative purpose that is valid as being so broad that almost anything would apply. When questioned at oral arguments, the chief -- the lawyer representing the House of Representatives could not name a single document that couldn’t be subpoenaed by the House of Representatives.

 

And this fact was specifically called out in the final opinion as demonstrating that the arguments of the House of Representatives were way too broad -- that although, yes, the House of Representatives has the power to subpoena documents to gather information that it needs to do its job, that doesn’t mean it can subpoena anything in the world. And it has to be much more limited than that.

 

So the majority, again, in this case was the Chief Justice, along with the four more liberal justices. And they held that Congress does have the power to subpoena even the records of the President, but the Court has to carefully evaluate these subpoenas because there are really serious separation of powers issues at issue here. You have a fight, effectively, between the powers of Congress and the power of the President.

 

And there’s substantial fear among the majority of the Court that Congress could use these subpoenas to try to aggrandize itself and make itself more powerful at the expense of the President. For instance, it could threaten the President. If the President doesn’t do what Congress wants, it’ll start digging into its details of the President’s history that are really completely irrelevant to Congress but just doing it to try to harass the President or in other ways harm the President.

 

And the ability to make those kind of threats is something that the Court has to make sure that doesn’t occur. And so rather than kind of the carte blanche of, yeah, Congress has the power to subpoena, and the power to subpoena for legislative purpose is so broad that almost anything applies, they required a much more detailed analysis than had been done at the lower courts. So they laid out a four-part test that each of the lower courts has to consider when considering these subpoenas. And really, they built this four-part test in many ways considering the interactions between Congress and the President in the past. They were trying to kind of keep the same balance that had existed before between the President and Congress so that, yes, Congress can subpoena documents from the President, but, no, it can’t go too far.

 

So the four-part test in this case is, first, does the Congress—in this case, the House of Representatives—assert a legislative purpose that warrants the significant step of involving the President and his papers? They can’t just do it because they feel like it. They have to actually show that it’s necessary, that there’s some reason to actually take that step when there could be some other ways of getting the same information.

 

So for instance, one of the committees in this case said that they wanted to use the President as a case study for general legislation. So they wanted to examine the records of the President so that they could use those records as kind of a prototypical example of, say, a person in finance trying to figure out what laws should be written around -- in this case, I think it was the real estate buying market. So they wanted to examine the President as an example of a person who buys this kind of real estate and then use the President’s example to help inform them what laws should exist in this area.

 

That kind of legislative purpose the Court held is not appropriate. You need something more to be able to go after the President when you could get the same information from hundreds of other real estate developers. The Court also said that Congress cannot rely on the President’s information that could be reasonable acquired from other sources. Again, this is an example that says Congress could have gone after information from these other parties that don’t implicate separation of powers problems, and, instead, they decided to go after the President and cause these separation of powers problems when they didn’t have to. The Court rejected that kind of subpoena from Congress.

 

The last thing that the Court made clear is that they cannot subpoena for law enforcement purposes. Some of the House committees had suggested that, based on the testimony of Cohen and others, that they believed that the President or some of his associates may have committed some crimes. And they wanted to subpoena these records to investigate whether those crimes had actually occurred.

 

They weren’t doing it as part of their power to impeach the President. It seemed among all the justices that, if the Congress was considering whether to impeach the President, that they could look into these potential crimes or other wrongdoing. But as part of their legislative purpose, they cannot use subpoenas for the purposes of law enforcement or seeing whether wrongdoing has occurred. So that dealt with the asserted legislative purpose.

 

The second aspect of the problem -- of the question that the lower courts have to consider in considering these subpoenas going forward is that the subpoenas are no broader than reasonably necessary given the legislative purpose. So once Congress has said “That’s our target. That’s why we have to issue the subpoena,” the courts have to make sure that the subpoena is narrow and not broader than reasonably necessary. So you can’t grab all of Trump’s financial information if your interest is only to one particular element.

 

The third aspect of this is that the court has to examine the evidence of the legislative purpose. It isn’t enough for the House of Representatives or the Senate to say that there’s a legislative purpose and to claim that there’s a legislative purpose. But they have to be specific. They have to present evidence that there is actually a legislative purpose -- and if they issue statements that are so vague that it becomes impossible to conclude that the purpose is actually valid and not just pretextual.

 

And the last one is that the courts have to consider the burdens on the President. Now, the President had claimed that these subpoenas burdened him because they caused his time and attention to be brought to this litigation rather than other important national interests. And the Court said that’s not enough.

 

The burdens of considering intention and time that are inherent in all litigation are not the kind of burdens that the Court has to consider. But if there are other burdens on the President, those are the kinds of burdens that the courts have to consider. For instance, the court should be careful about if they need personal testimony in person from the President because that’s going to pull him away -- physically prevent him from attending to his duties as President. And so the court has to be very careful to be very accommodating to the President in ensuring that, when that occurs, it’s not done in a way that interferes with the President’s other duties.

 

So while the Court allowed Congress to subpoena that President—even his personal papers—it made sure that the lower courts carefully consider the separation of power burdens that that imposes. I think that is mostly correct if Congress can subpoena the President. The dissent makes the other argument. It makes the argument that, in this case, Congress doesn’t have the power to subpoena the President.

 

You see, Congress only has the powers that are specifically enumerated in Article I, Section 8 and other parts of the Constitution. And there’s nothing in Article I, Section 8 that says, “And Congress shall have the power to subpoena.” And so where does that come from?

 

Well, if it’s to exist, it has to exist as implication of the other powers of Congress. And while the majority recognized the broad power to subpoena information for the legislative purpose, the dissent sees a much more narrow view of the power to subpoena. While even the dissent recognized that Congress can subpoena official records to try to understand what government’s doing and how it’s doing it, the ability to subpoena private records from the President or from others they felt was beyond the power of Congress.

 

And this was Justice Thomas and Alito in dissent. For them, the powers are only those that are necessarily implied by the Article I, Section 8 powers. And while understanding the operations of government was implied, the private papers of individuals went farther, in their opinion, than anything that was necessarily implied by the other Article I, Section 8 powers. So they would have denied even any Congress the ability to subpoena the private papers of anyone.

 

So overall, I think the Court really understood that there were significant separation of powers issues at play. They didn’t kind of rubber stamp the subpoenas of the House of Representatives, but nor did they rubber stamp the opinions of President Trump’s personal attorney. They said, “We’re going to carefully make sure that these separation of powers issues, whether it’s from the President’s perspective or the congressional perspective, are all held and considered and understood and applied. But we’re not going to give the ball game to either side, as it were.”

 

So in this way, I think the Court really tried to do the best job that they could, and I think they struck a pretty good balance. So with that, I will -- feel free -- I’m open to answering any questions that anyone has.

 

Dean Reuter:  Terrific. Thank you so much, Devin Watkins. I have one question before we turn to the audience, and that concerns, I guess, the Vance case. This is the grand jury criminal case. Was anybody making arguments from “Federalist 69”? There’s an interesting statement—and I’ll read it and just get your reaction to it—that, to me, could be read—and this is Hamilton—could be read as arguing that the President is basically immune from criminal prosecution during his presidency. And this is “Federalist 69” talking about impeachment.

 

It says, “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” That, to me, sort of signals that a president not only can’t be investigated but really can’t be prosecuted and punished in the ordinary course of law during his tenure. Was that being argued at all by anybody in the Vance case?

 

Devin Watkins:  It was. That was the view of the personal attorney of the President. That is kind of the basis upon which he was arguing that the President was absolutely immune from criminal process while in office. That was pretty much unanimously rejected. And it wasn’t because the President can be prosecuted and convicted while in office.

 

I think that almost all the justices would say that he cannot be convicted and thrown in jail while he’s in office, even if the state finds that, in their opinion, he violated state law. If they did, he could be impeached. Absolutely. But he could not be prosecuted and thrown in jail because that would interfere with his Article II duties.

 

This specific case dealt with a more narrow issue: not whether he could be thrown in jail for violation of state law but whether or not any criminal process—in this case, a subpoena—just investigating what actually occurred could happen while the President was in office. And in this case, it was pretty unanimous among the justices that, although the President can’t be thrown in jail for violating state crimes, he can be investigated, especially because there’s a lot of other information people that may be near to the President -- not just people that may have committed crimes that are associated with the President but where the President and his papers may exonerate another individual. And we don’t want people being thrown in jail when we have evidence that they are actually innocent of those crimes.

 

Dean Reuter:  Interesting. Interesting. Let’s check in with our first caller of the day from right here in Washington, D.C.

 

Caller 1:  Yes, thank you. I have two questions. One, did the majority in either case take comfort on the argument about the burden on the President in the fact that the record subpoenas were of his corporate agents, the banks, and his financial advisors as opposed to the personal imposition on the President?

 

And then, two, procedurally, where do these cases go now? Do they go back to a trial court for evaluation of the Court’s standards and further arguments by the President’s lawyers as to what’s disclosable and what’s not under the subpoenas? Or does it go back to -- where does it go? I’m just a little bit confused about that.

 

Devin Watkins:  Sure. So the first question, considering the fact that these subpoenas weren’t to Trump but were to these agents of Trump, the majority noted this fact but said that, as is universally understood that these are not really owned by those corporations—they’re holding the papers on the President’s behalf—that these really are the President’s papers, and it would make no sense to make a different rule for third parties holding these documents rather than the President himself. Imagine the alternative. And they mention this in the opinion.

 

If Congress could go start digging around, say, the Gmail account of the President because it’s being held by Google or go and look to the personal medical records of the President because they’re being held by the doctor, all of these cases suggest that whatever the standard is for the President, it should apply not only to the President but anyone that holds the papers of the President on his behalf. And so it seemed unanimous, as far as I could see, among the justices that there shouldn’t be any different standard based on who’s holding the President’s papers currently.

 

And let’s see. Your second questions was where do we go from here? So on the first case, as to the grand jury, they remanded back in some ways to consider whether there’s any specific Article II interest. They mostly upheld the fact that these subpoenas can be subpoenas to the President but still allow that the President make specific objections to protect Article II interests in the future or as to these subpoenas in particular. And so they kind of remanded back, in this case mostly to the state courts I believe, to see whether the President wanted to raise any actual specific Article II interests and not these kind of more generalized arguments that the President was entirely immune to these subpoenas.

 

As to the congressional subpoenas, again, they remanded back to the lower courts. But in this case, they had kind of set up this framework. These are the questions that the courts have to consider when presented with these subpoenas. And so they remanded back to the lower court to consider each of these four factors that they had identified and ask the lower courts to consider them in the first instance. And then, if there’s objections that the lower court failed to consider these properly—these new four factors—that they might hear it again. But for now, they haven’t finally ruled on whether or not these congressional subpoenas are valid or not. They’ve just remanded back to lower courts to consider them in light of the framework.

 

Now, that said, several of the subpoenas were based on the legislative purposes that the Court had explicitly repudiated in this opinion. And so while they’re technically remanded back, at least some of these congressional subpoenas, I suspect, are going to be either thrown out of court or perhaps the House of Representatives will withdraw the subpoena rather quickly. Some of the other subpoenas, though, may not be -- they have a better case to make as to legislative purpose, and they may still move forward.

 

Caller 1:  All right. So when it goes back to the Vance -- to the state court, the Vance subpoenas, Trump cannot raise the issue of burden on the presidency -- the actual physical burden of having to meet with accountants and lawyers to evaluate arguments. And then secondly, he can only raise executive privilege issues, which it would seem these documents would not touch because they’re financial records predating the presidency, as I remember.

 

Devin Watkins:  Yeah. As to the kind of general burdens of litigation, meeting with your lawyers and stuff like that, those kind of arguments he cannot raise as sufficient burdens to stop the subpoena. Now, that said, if they subpoena the President to testify in person, for instance, or they ask the President to do other things in the future, those kind of things can be potentially objected to if they’re too burdensome for the President. So it depends.

 

These particular subpoenas are probably going to be valid, and he’s going to have to turn over these documents. But that doesn’t mean that all the subpoenas in the future are necessarily going to be valid. So it -- in this case, he will probably have to turn over the tax documents.

 

Dean Reuter:  Once again, we’re speaking with Devin Watkins. Let’s check in with another caller.

 

Mike Stern:  Hey, Devin. It’s Mike Stern. So in the Mazars opinion, there was a lot of language from the Chief Justice about “We’ve never had a case like this before. Congress and the President always work these things out. We’re not really sure why this is here, but we’re going to decide it. But we sure don’t want to be in this position again.” What was the purpose of that language, and what do you think the implications are for the standing question in the D.C. Circuit in McGahn?

 

Devin Watkins:  So I suspect the purpose of that section was to kind of say to Congress and the President, “Grow up. Grow up and work it out amongst yourselves. That’s the way you should do it. We don’t want you to come to us for every little, tiny thing just because you want to.” That said, they felt that if they just throw this out and say it’s a political question the courts aren’t going to deal with it, that kind of tips the scale in terms of the President.

 

That means the President doesn’t have to comply with the subpoenas that the House sends them. So they didn’t want to kind of tip the scale towards the President or the House of Representatives. But I suspect that language is in there to kind of just shame them into working out a deal among themselves.

 

Mike Stern:  Interesting.

 

Dean Reuter:  We do have a couple more questions here. But before we go to them, Devin, let me just ask quickly. On the Mazars case, the third criteria: the question of legislative purpose. The Court’s shown sort of a willingness to look behind stated reasons for things and get to other unstated reasons for things, I think, like the census case, the DACA case, the travel ban. Is there some hint of that in this case that it’s not enough just to say legislative purpose on behalf of Congress -- that they’re really going to -- that they want courts to look towards the real intentions, the real purposes, the real motives of different actors?

 

Devin Watkins:  To a certain extent, yes. They require that Congress, when it’s enumerating its legislative purpose is to present evidence that that legislative purpose is valid and to be specific about what the legislative purpose is. They were very clear that vague statements that there’s a general legislative purpose to go investigate financial interests and how we might regulate them -- that those are not going to do, that they have to be particularized and, ideally, there should be concrete evidence that the harm that the Congress is saying they’re investigating to potentially legislate is real and not just some hypothetical idea.

 

And so while they didn’t go so far as to say that the courts should look into whether or not the legislative purpose is pretextual and that maybe that they really had some other purpose that they’re not mentioning, they did say that there has to be some evidence that the legislative purpose is valid. So the Court shouldn’t really kind of go on a fishing expedition of “We think the purpose is hypothetically this when they said that” but instead just require evidence from Congress as to the validity of their legislative purpose.

 

Dean Reuter:  Let’s now check in with our next caller.

 

Al Underhill:  Hello, this is Al Underhill from Phoenix. I have a question in the criminal case in New York as to process of actual production of those documents, if they ever get to that stage. The question is is it likely that they would be produced on a confidential basis? I understand the prosecutor may then present them to a grand jury. What’s your opinion on the likelihood that those documents will somehow become publicly known?

 

Devin Watkins:  So I guarantee you they will be on a confidential basis in that they are criminal and potentially ten sanctions available against anyone who leaks it. That said, it’s possible that the prosecutor or members of the jury could leak it anyway and say, “We don’t care if we’re going to get prosecuted. We’re going to go send it to every news agency in the country.” I don’t know what the odds of that happening are. I know these documents are obviously of great political interest. So that may tempt some people to violate the law. But I’m not going to -- I can’t really speculate at the odds of that occurring.

 

Al Underhill:  Thank you.

 

Dean Reuter:  Devin, let me ask a follow-up question there on the criminal case and the production of documents. Is it fairly common -- I’d heard, and I don’t know this? So I guess this is the first question. Was the document request going back a full ten years, which is what I had heard? They’re requesting documents from others -- from the third parties and from the President I suppose going back ten years. And are there statute of limitations implications there? Was that discussed? Was that part of this case at all?

 

Devin Watkins:  They did not mention statute of limitations implications that I saw in the opinion. I believe it was a rather long period of time that they had asked to have the records produced. Potentially, if they go back far enough, that might become too burdensome and they might raise those kinds of objections. The standard burdensome objections are still available to the President. So on remand back to the state court now that they have resolved that he’s not absolutely immune, he may raise those kind of objections before the state court. And we’ll have to see what the state court says.

 

Dean Reuter:  Back in the direction of Washington, it looks like, for another question. Go ahead, caller.

 

Caller 1:  Thank you. I’m back. Given the time, I thought I would take the opportunity. I appreciate it. A couple of follow up questions really, I’m trying to conceive of what kind of burden the President might raise with respect to the subpoenas if the actual physical burden is limited to just the problem of his having to show up for a deposition, for example, or grand jury testimony. And burden of risk, in the Jefferson/Burr case, Marshall went out of his way to allow Jefferson to avoid having to appear.

 

And secondly, did anybody but Thomas and Alito talk about what everybody knows is the elephant in the room -- that both of these cases -- lawsuits are just harassment lawsuits, part of the campaign against Trump that will never end as long as he’s alive? Did anybody talk about what is fate and reality is harassment motivations behind both lawsuits?

 

Devin Watkins:  So as I was mentioning just a moment ago, the possibility that these subpoenas are too burdensome in that they ask for records that are not relevant to the potential criminal investigation, they’re overbroad -- questions like that were not really resolved by the Court. They recognized that those kind of objections are still available to Trump. And on remand, he may raise those objections. They’re not preventing him from doing so.

 

But he didn’t raise those objections initially because he believed he was absolutely immune. And they have now said that that is not true, and they’re remanding it back. And so he’ll now have the opportunity to raise burdensome objections and other standard subpoena objections like that. And we’ll have to see what the lower state courts do in that case.

 

As to the harassment and stuff, the majority and the concurrence and dissents, I think all of the justices pretty much recognized that it was possible for these -- for subpoenas in general to be used to harass the President. So in many ways, the possibility of that kind of harassment was being used to inform how they set up the structure so that the judges involved would hopefully prevent such harassment from occurring. So while they didn’t say that these specific subpoenas are part of any kind of pattern of harassment, they recognize that harassment is entirely possible with subpoenas like this. And therefore, they set up these structures to prevent that kind of harassment.

 

Caller 1:  But there are 20 or 30 [inaudible 38:50] prosecuting attorneys now in the United States I read recently when somebody did a tabulation. Did anybody talk about the risk of harassment specifically related to this?

 

Devin Watkins:  Yes, absolutely. The majority opinion talked about the risk of harassment -- about these -- by subpoenas in general to the President by Congress. And I think they also had that in mind for the criminal subpoenas as well. But they relied upon the judges involved to prevent harassment when it occurs. And if necessary, the President can appeal such judicial decisions if he believes it’s warranted.

 

Caller 1:  Thank you, thank you.

 

Dean Reuter:  Let me make a final call for questions, and maybe I’ll ask a final question myself. That is on this issue of harassment, specifically with regard to the Mazars case and congressional subpoenas. I take it that -- maybe did the Court address the notion of overlap between harassment and legitimate legislative purposes? In other words, if there is an element of harassment, is a subpoena, per se, invalid, or can there be a legitimate legislative purpose coupled with harassment as one of the reasons for issuing a subpoena?

 

Devin Watkins:  I think the Court kind of saw harassment as the other side of the coin. If they’re issuing these subpoenas to the President for the purpose of harassing the President, that is not a legitimate legislative purpose. And so if they are having a legitimate legislative purpose, then it’s not really harassment. That was kind of how the Court framed the issue.

 

Dean Reuter:  So those are sort of mutually exclusive concepts. Interesting.

 

Devin Watkins:  Yes.

 

Dean Reuter:  Yeah. That makes sense to me. We do have one more question, so let’s check in with another caller.

 

Tim:  Hi, it’s Tim from Indiana. I’m still confused as to what the U.S. district court is supposed to do with this when it gets the Vance case back. Can you comment?

 

Devin Watkins:  At the moment, well, I think they will give the President an opportunity if he wishes to raise issues that are of a federal nature. So they will say, you know, “Are there any other Article II interests that you wish to present and object to?” The President may not have any that he wishes to raise at this time. And it may just go back to the state court at that point where he will raise objections to the subpoena, but he won’t -- I don’t think on remand that he’s going to raise any additional Article II interests at this time.

 

It’s possible that he might. It depends on what Trump does. Technically, it’s remanded back to the district court. So if there are actual Article II interests that are particularized that he wishes to raise that are not foreclosed by this opinion, he can do so in the district court. But what the district court will do going forward I think really depends on what Trump does.

 

There’s a pretty good chance that they will just step away from the federal case and return to the state case and make probably a dozen different objections to different aspects of the subpoenas under state law for things going to burdensome -- maybe to further back in time, maybe covering too many different areas, things like that.

 

Tim:  Thank you.

 

Dean Reuter:  Thank you, caller. I don’t see another question on the board. So let me ask a question that you might want to duck, or you might want to take a shot at. And that’s if you have a sense of the timing of things going forward. You’ve laid out for us the next steps. Do you see any conclusion on either of these cases that is the actual production of documents in the near future? How long does it take for this to play out?

 

Devin Watkins:  Well, I suspect that the grand jury subpoenas is going to go back to state court rather quickly. I’m not sure how quickly but probably a matter of weeks at this point at most before it’s back to really in the hands of the state court. And then I suspect that Trump is going to issue a variety of objections on grounds that are standard subpoena grounds to object to various aspects of the subpoenas, whether it’s overbroad and too burdensome, a variety of objections like that. And then it’ll be up to however long it takes the state court to resolve those issues.

 

Dean Reuter:  Very good. Well, it looks like we’ve had our final question. I’ll give you a chance to express any final thought or wrap up if you’d like, Devin Watkins.

 

Devin Watkins:  Well, I just wanted to say -- reiterate one more time that I’m happy that all of the opinions, both the majority and the dissent, carefully considered the issues. They were based in historical facts as to how the Founders dealt with subpoenas to the President. In this case, they tried to use those historical facts to kind of build the framework that they have enunciated today. And I’m glad to see that happen.

 

Dean Reuter:  Well, thank you so much, Devin Watkins, for joining us as the Supreme Court closes out its term. We very much appreciate your time and obviously taking the time and energy and your insights reading these cases -- these decisions. I want to thank the audience as well for dialing in. A reminder to our audience to check the website and monitor your emails for upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you very much, everyone.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.