Lecture Notes: Supreme Court Argument

Key Points and Main Ideas

Introduction

• Historical lack of criminal subpoenas against sitting presidents.
• The argument for temporary presidential immunity from state criminal proceedings.

Arguments from Mr. Sekulow (representing President Trump)

• Concern over local district attorneys (DAs) issuing criminal processes against the president.
• Reference to the Constitution's Article Two and the Supremacy Clause.
• Emphasized that the use of subpoenas could distract the president from official duties.
• Highlighted differences between this case and Clinton v. Jones.
• Pointed out the subpoena’s similarity to congressional requests, suggesting political motivations.

Justice Thomas's Questions

• Asked about historical precedent for presidential immunity.
• Queried whether immunity changes when subpoenas target third parties.

Justice Ginsburg's Questions

• Questioned the exception of presidential immunity from the general rule that everyone’s evidence is available to the grand jury.
• Asked about implications if Clinton v. Jones had been in state court.

Justice Breyer's Observation

• Suggested issue of multiple DAs issuing subpoenas could create a significant burden.
• Proposed examining each subpoena for undue burden.

Justice Alito's Hypothetical

• Explored scenario where there might be a necessity for a DA to subpoena presidential records for third-party investigation.

Justice Sotomayor's Concerns

• Addressed the breadth of immunity Mr. Sekulow was arguing for.
• Questioned why presidential immunity from subpoenas should be broader than immunity for civil suits.

Justice Kagan's Inquiries

• Discussed the potential burdens on the presidency from state court subpoenas.
• Suggested the possibility of balancing standard considerations.

Justice Gorsuch's Discussion

• Compared the case to Clinton v. Jones, emphasizing federal vs. state distinctions.

Justice Kavanaugh's Questions

• Sought clarity on the rationale for different rules in civil versus criminal cases.
• Asked about impact on the presidency from state court processes.

General Francisco's Argument (Solicitor General)

• Advocated for a "special need" standard for state subpoenas targeting the president.
• Argued that state procedures pose a greater risk to the presidency than federal ones.
• Cited the importance of federal court review to protect national interests.

Justices' Concerns on Standard Application

• Justice Alito inquired about the practical application of the "special need" standard.
• Justice Breyer referenced Nixon v. Fitzgerald and potential court developments.

Mr. Dunn's Argument (New York DA's Counsel)

• Emphasized the investigation concerns private conduct not protected by executive privilege.
• Stressed the grand jury's role and the importance of the investigatory process.
• Rejected the notion that state investigations inherently burden the presidency.

Justice Discussion

• Explored how Article Two interests and Supremacy Clause considerations apply.
• Questioned procedural safeguards against political harassment.
• Discussed the practical burden of managing presidential duties alongside subpoena responses.

Conclusion and Potential Impact

• The case presents a significant tension between state investigatory powers and presidential immunity.
• A decision could have a lasting impact on the balance of state and federal power and the limits of presidential immunity.