Now CJ Roberts invited Letter to wrap up. "We ask the court to focus on the specific subpoenas in this case. We're not dealing with what ifs here." 101/
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RBG: We have said that the grand jury has a right to everyman's evidence. Is the president an exception? She also said what if Paula Jones had sued in state court? Sekulow: Said the court then said local prejudice issues would come into play (pages 691, fn 13). 110/
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Sekulow says the president is himself a branch of government and is temporarily immune from a state proceeding while he is president. "The president is not to be treated as an ordinary citizen." 111/
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Breyer, millions of people can file the papers at anytime to sue the president. Cases might not survive. But we don't prevent.
Why not just require president to show why it's undue burden and lack of connection, he wins. That's Clinton v. Jones. Why not the same here?
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Note to self: A lot of chutzpah for Donald Trump who loves to sue people to complain about getting sued 113/
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Breyer says why not litigate over the burdens? Sekulow doesn't want a case-by-case analysis. He wants blanket immunity 114/
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OMG. Sekulow is saying he won't be able to get President's attention for a couple of hours to go over subpoenas. . .I think Trump can find the time (just cut back on tweeting and golfing). 115/
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Heck yes! Alito is saying what about statutes of limitations or practicality. Why couldn't grand jury subpoenas move forward from the state as if presidential immunity then a president could get away with a crime? 116/
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Alito said, what if the president is not a target? Sekulow says constitutional -- even as witness it raises serious issues. 117/
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Sotomayor says the constitution protects against presidential interference in state criminal procedures. Cannot pardon for state convictions. Yet she says "I find it odd" that there's a presidential immunity from state investigative/police powers. . . 118/
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Yet we would allow a state civil damages case, she added. And don't we always give president option to show subpoena is in bad faith. Said "I'm not sure he's entitled to more immunity for private acts than he should be for public acts."
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She said if judges sexual harass someone they can be sued. So can congressman. You are asking for a broader immunity than anyone else gives. 120/
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Kagan says it's also true that "a president isn't above the law." CJ Marshall told Jefferson that he could be subject to subpoena. 121/
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Sekulow seems fixated on the language used in the Vance subpoena. 122/
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Gorsuch asks Sekulow to distinguish between Clinton v. Jones. 123/
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Gorsuch points out that it was even less burdensome then because they sought a deposition of the president. But here it's documents from third parties. 124/
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Kavanugh asks him to explain the rationale for having one rule for state civil cases and state criminal cases. Sekulow: Said the criminal nature is more burdensome. Idea that you are the target where loss of liberty could be the result. 125/
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What about the statute of limitations issues, Kavanaugh. Sekulow said there are procedures under state law 126/
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Now Solicitor General Francisco is up. Argues for a "special needs" standard so that the local prosecutors balance local needs with presidential Say Vance did not try to meet standard 127/
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Roberts asks the Solicitor General whether he agrees with Trump's lawyer Sekulow re absolute immunity. What is wrong with Trump's position. Francisco: Says the court does not need to address that. Says Vance needs to meet special needs standard. 128/
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Hmmm. That was not convincing. He is not be straight out honest because if absolute immunity applied, then no need for the special needs standard. If someone tells Trump this he will be angry that Francisco does not have his back 129/
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Thomas says how do we determine when the burden is too much on the president? Francisco says local prosecutors have prejudice so federal court must balance local interest against national ones including president doing his job 130/
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Francisco said the grand jury rules are not enough to protect the president if he is a witness, for example. 131/
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RBG: Said Francisco says states are subordinate to the federal government under the supremacy clause but you don't give any credit to the 10th amendment about the reserved powers of the states. 132
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Francisco says that the president is the sole authority under the executive power, so that's why they need an undue burden standard. Wants local prosecutor to have to meet same standard as in Nixon case. 133/
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RBG says grand jury is an investigative body and does not make charging decisions. Says it's backwards to ask them to make charging decisions before hand. 134/
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Francisco said you don't need charging decision 135/
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Breyer said Nixon tape doesn't help in one respect because executive privilege. But on the other hand does help as lower courts had assessed burdensome nature question Why do you need anything special here? You do need a decision by us that it's reviewable in federal court 136/
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Breyer presses Francisco arguing that the higher standard in Nixon was because of executive privilege, but Francisco says that should apply here due to the prejudice of state officials. 137/
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Alito asks how this showing would be made in federal district court. Would prosecutor showing be reviewed ex parte? Would it be available to sitting president? Huh -- Francisco has not thought this through. He says he'll "take my best stab at it." 138/
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Maybe ex parte or filing under seal, he said. Alito: "How essential must the information be to meet the special needs standard?" Francisco: "It does have to be critical to the charging decision." Can't be readily available elsewhere. 139/
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Sotomayor said always danger in taking a doctrine created for one set of needs (executive privilege) and for proceeding at issue that is totally different, that doesn't involve executive privilege or immunity. Private activities that pre-dated the president's tenure? 140/
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Why not ask if it's based on credible suspicion of criminal activity and whether it's calculated ... (sorry got distracted by something in my house). 141/
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