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Trump v. Cook, No. 25A312, oral argument transcript

Supreme Court of the United States · 2026-01-21

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SUPREME COURT
         OF THE UNITED STATES

         IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - -

DONALD J. TRUMP, PRESIDENT                  )

OF THE UNITED STATES, ET AL.,               )

                   Applicants,              )

             v.                             ) No. 25A312

LISA D. COOK, MEMBER OF THE                 )

BOARD OF GOVERNORS OF THE                   )

FEDERAL RESERVE SYSTEM,                     )

                   Respondent.              )
- - - - - - - - - - - - - - - - - -




Pages:    1 through 137

Place:    Washington, D.C.

Date:     January 21, 2026


          HERITAGE REPORTING CORPORATION
                        Official Reporters
              1150 Connecticut Avenue, N.W., Suite 305
                     Washington, D.C. 20036
                          (202) 628-4888
                      www.hrcreporters.com

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                                                     1


1     IN THE SUPREME COURT OF THE UNITED STATES

2    - - - - - - - - - - - - - - - - -

3    DONALD J. TRUMP, PRESIDENT           )

4    OF THE UNITED STATES, ET AL.,        )

5                     Applicants,         )

6               v.                        ) No. 25A312

7    LISA D. COOK, MEMBER OF THE          )

8    BOARD OF GOVERNORS OF THE            )

9    FEDERAL RESERVE SYSTEM,              )

10                    Respondent.         )

11   - - - - - - - - - - - - - - - - - -

12

13                     Washington, D.C.

14                  Wednesday, January 21, 2026

15

16         The above-entitled matter came on for

17   oral argument before the Supreme Court of the

18   United States at 10:03 a.m.

19

20   APPEARANCES:

21   GEN. D. JOHN SAUER, Solicitor General, Department of

22      Justice, Washington, D.C.; on behalf of the

23      Applicants.

24   PAUL D. CLEMENT, ESQUIRE, Alexandria, Virginia; on

25      behalf of the Respondent.




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1                    C O N T E N T S

2    ORAL ARGUMENT OF:                         PAGE:

3    GEN. D. JOHN SAUER, ESQ.

4       On behalf of the Applicants               3

5    ORAL ARGUMENT OF:

6    PAUL D. CLEMENT, ESQ.

7       On behalf of the Respondent              69

8    REBUTTAL ARGUMENT OF:

9    GEN. D. JOHN SAUER, ESQ.

10      On behalf of the Applicants             133

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1                     P R O C E E D I N G S

2                                        (10:03 a.m.)

3            CHIEF JUSTICE ROBERTS:    We will hear

4    argument this morning in Case 25A312, Trump

5    versus Cook.

6            General Sauer.

7             ORAL ARGUMENT OF GEN. D. JOHN SAUER

8                   ON BEHALF OF THE APPLICANTS

9            GENERAL SAUER:     Mr. Chief Justice, and

10   may it please the Court:

11           Deceit or gross negligence by a

12   financial regulator in financial transactions

13   is cause for removal.    In a two-week period in

14   2021, Lisa Cook submitted mortgage applications

15   for two properties in Michigan and Georgia.      In

16   both, she told the lender that, within 60 days,

17   she would occupy that property for one year as

18   her principal residence.

19           As President Trump stated in removing

20   her, it is inconceivable that she intend -- she

21   was unaware of the first commitment when making

22   the second, and it is impossible that she

23   intended to honor both.    Such behavior impugns

24   Cook's conduct, fitness, ability, or competence

25   to serve as a governor of the Federal Reserve.




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1    The American people should not have their

2    interest rates determined by someone who was,

3    at best, grossly negligent in obtaining

4    favorable interest rates for herself.

5              Cook's conception of cause contradicts

6    the term's longstanding meaning and overrides

7    Congress's deliberate decision not to impose

8    the inefficiency, neglect, or malfeasance

9    standard here.   Her claim that she has a

10   property interest in her public office was

11   roundly rejected by the founding generation as

12   pernicious in a republican system of

13   government.

14             Her claim that the statute grants her

15   notice and a hearing contradicts this Court's

16   cases requiring very clear and explicit

17   language to restrict the president's removal

18   power.   And any such process would be futile

19   because, for months, she has never personally

20   disputed the substantial truth of the material

21   in question.

22             Finally, the remedy she obtained, a

23   preliminary injunction countermanding the

24   president's decision and reinstating her to

25   office, violates longstanding principles of




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1    equity and was conspicuously nonexistent in our

2    nation's history from 1789 until 2025.

3            I welcome the Court's questions.

4            JUSTICE THOMAS:    General Sauer, the --

5    this isn't central to the case, but it is an

6    antecedent point.    On what basis are we to

7    conclude that the Federal Reserve is an

8    executive branch agency and, hence, that the

9    president does have removal authority?

10           GENERAL SAUER:    Justice Thomas, an

11   excellent question.    I would say two things

12   about that.   The first one is, of course, that

13   the Federal Reserve -- there's an academic

14   dispute about whether or not the Federal

15   Reserve's open market operations constitute

16   executive power or something else, essentially

17   private conduct.    However, Congress has, over

18   the years, kind of packed on traditional

19   executive powers on the Federal Reserve.   So

20   the Federal Reserve can issue regulations about

21   reserve requirements in banks and even credit

22   card fees and so forth.

23           So, even if the Court were to think

24   that some of what the Federal Reserve does

25   isn't executive at all, certainly, there are




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1    traditional executive powers at issue here,

2    and, therefore, we contend that this -- even

3    though we haven't disputed the validity of the

4    Article II removal restriction here, this case

5    is not transparent to Article II.

6            And, certainly, there's a statutory

7    authority that's very plain here because it

8    says removable for cause by the president, so

9    the statute is unambiguous, giving the

10   president removal power.    And we contend that

11   there -- there -- at least there's -- what's

12   kind of been packed on to the Federal Reserve

13   over the years by Congress is clearly

14   quintessential executive power.

15           CHIEF JUSTICE ROBERTS:    I --

16           GENERAL SAUER:     Now we acknowledge

17   what the Court said in Wilcox, which is that

18   it's a quasi-private, uniquely structured

19   entity that stands in the distinct historical

20   tradition of the First and Second Banks of the

21   United States, and, therefore, we have not

22   challenged the -- the removal restriction in

23   this case.

24           JUSTICE SOTOMAYOR:    Could you take --

25           CHIEF JUSTICE ROBERTS:    Counsel, I




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1    want to -- before we get back to the legal

2    questions, I want to start with a little

3    factual one.

4               You -- you began by talking about

5    deceit.    Does what you said after that apply in

6    the case of an inadvertent mistake contradicted

7    by other documents in the record?

8               GENERAL SAUER:   We would say yes.   For

9    example, the president's removal order says

10   either this is deceit or at least it's gross

11   negligence.    And now, obviously, they've

12   released their letter of counsel, not from Cook

13   herself, you know, two days before the close of

14   briefing here, where they contended that it was

15   an inadvertent notation.

16              But, of course, it's the sort of

17   inadvertent notation that people could be

18   indicted for or at least the federal regulators

19   would force you to buy back your loans.       It's a

20   very significant representation that, to the

21   lender, this is going to be my principal

22   residence because, obviously, you get a better

23   interest rate if that is, in fact, your

24   principal residence.

25              So it suffices from our perspective,




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1    and, therefore, there's really no material

2    facts in dispute that the president determined

3    that this is at least gross negligence.     Even

4    if it was inadvertent or a mistake, it's quite

5    a big mistake, so to speak, in a key financial

6    representation made in -- in the context of

7    interest rates.

8              CHIEF JUSTICE ROBERTS:   Well, I mean,

9    I suppose we can debate that, how significant

10   it is in a stack of papers you have to fill out

11   when you're buying real estate.    But I gather,

12   under your position, it doesn't make a

13   difference, right?   In other words, the

14   determination of cause is unreviewable, right?

15   So it doesn't make a difference whether this

16   was an inadvertent mistake or whether it was a

17   devious way to get a better interest rate.      It

18   doesn't matter for you, right?

19             GENERAL SAUER:   Let me put it this

20   way.   We would contend there's judicial review

21   kind of at the outer perimeters of cause,

22   whether something goes to conduct, fitness,

23   ability, or competence at all.     But, once

24   you're within that, and we clearly are here,

25   then there would be deference to the president.




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1               And we derive that from at least three

2    sources.    First of all, the statutory language,

3    "cause," without further qualification, is

4    itself on its plain language a broad, you know,

5    conferral of authority on the president

6    himself.

7               Secondly, we think that places that

8    within the line of cases going from Martin

9    against Mott through Dalton against Specter and

10   beyond Payne and so forth, where the president

11   has broad discretion, and the Court has

12   consistently held in those cases where the

13   president is granted this broad discretion and

14   that's not judicially reviewable.    And there

15   are statements to that effect obviously in

16   Marbury itself that they disregard, pages 165

17   and 166 of Marbury.

18              But, even if the Court doesn't accept

19   that, there's a further layer here, which is

20   that they've conceded this is an ultra vires

21   challenge, and this Court held last term that

22   the standard of review of in an ultra vires

23   challenge is very, very high for them and very

24   deferential to the president itself.    It kind

25   of, you know, dovetails with our Dalton and




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1    Martin argument as well.

2            In an ultra vires challenge, the

3    burden on -- would be on them to show that what

4    the president did is entirely in excess of his

5    delegated powers and contrary to a specific

6    prohibition in the statute.

7            So there's kind of three ways to get

8    to the same conclusion there, which is that

9    once the president has made a determination, it

10   clearly does relate to conduct, fitness,

11   ability, or competence for that office.

12           Then, at that point, there's no work

13   for the reviewing court to do.    The traditional

14   discretion to the president's determination

15   would kick in.

16           JUSTICE SOTOMAYOR:    Counsel, were any

17   of these questions, except the constitutional

18   question, decided by the D.C. Circuit?

19           GENERAL SAUER:     The D.C. Circuit, in

20   its stay opinion, relied exclusively on the

21   sort of property interest argument.

22           JUSTICE SOTOMAYOR:    Notice and an

23   opportunity to be heard, that's what it said

24   the Constitution required, correct?

25           GENERAL SAUER:     It said that, yes.




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1               JUSTICE SOTOMAYOR:   All right.

2               GENERAL SAUER:   It said there's a

3    property interest --

4               JUSTICE SOTOMAYOR:   That's the only

5    issue --

6               GENERAL SAUER:   -- in this office

7    under Loudermill.

8               JUSTICE SOTOMAYOR:   That's the only

9    issue it addressed.    It did not address all of

10   the things you've talked about today:        What the

11   definition of "cause" is, including whether it

12   includes pre-office conduct and how much or

13   what nexus there has to be between pre-office

14   conduct and post-office conduct.

15              One could imagine that what would

16   constitute "for cause" during office would be

17   different than what would happen pre-office.

18   Even yourself below said, if something was

19   known before confirmation, you likely can't

20   rely on it.    You haven't quite said that up

21   here, but, logically, pre-office has a

22   different temporal connection.

23              Then the court didn't address whether

24   the president's determination of cause is

25   reviewable and under what standard.




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1            Ultra vires seems to me to be whether

2    or not another -- and that's all our cases

3    have ever said about ultra vires case --

4    situations -- whether another entity, another

5    adjudicatory entity, has jurisdiction or we do;

6    and, three, whether Cook has a right to notice

7    and a hearing under the statute and what that

8    means, and what remedy, if any, Cook can seek

9    now or finally in the case.

10           You ask us today in this emergency

11   application to provide -- to -- to finally

12   decide these issues.   I want to know why,

13   meaning the president, by your own admission,

14   cannot fire someone for disagreeing with his

15   policy choices.

16           You've conceded that, correct?

17           GENERAL SAUER:   Correct.

18           JUSTICE SOTOMAYOR:     All right.   So

19   it's not as if keeping her is going to thwart

20   any right he has to run the department because

21   he has none.   He's conceded that.   On policy,

22   he does not.

23           Now it's not as if she's been

24   incompetent, negligent, or committed

25   malfeasance while in office.    This is something




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1    pre-office.   So keeping her in office is not

2    causing an immediate harm to the agency.

3            Number three, we know that the

4    independence of the agency is very important

5    and that that independence is harmed if we

6    decide these issues too quickly and with not

7    due consideration.

8            So waiting, to me, to have at least

9    the lower courts look at these issues first

10   makes most -- the most sense to the public's

11   confidence and to the world's confidence about

12   the due process of law.

13           Explain to me why the president's harm

14   is greater than the public's, greater than the

15   Federal Reserve, who deserves to have people

16   acting that have been in office, and, number

17   three, why we should disrupt, as we said in

18   Wilcox, the disruptive effect of repeated

19   removals and reinstatement of officers.

20           Why shouldn't we wait until the end of

21   this case, where all the issues are clear and

22   where we make a final decision as to whether

23   she should have been removed or not?

24           GENERAL SAUER:    Let me start by

25   addressing that last point.




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1               We are seeking a stay of an

2    unprecedented preliminary injunction, restoring

3    a principal officer of the United States after

4    being removed by the president of the United

5    States.

6               JUSTICE SOTOMAYOR:   A hundred and

7    twelve years, and it's unprecedented that any

8    Federal Reserve officer has ever -- has ever

9    been removed.    So the unprecedented nature of

10   this case is a -- is a part of what the

11   president did, not what Ms. Cook did.

12              GENERAL SAUER:   I think that statement

13   has to be qualified by the recognition that

14   there have been situations where governors have

15   been credibly accused or found to have engaged

16   in financial improprieties, and those governors

17   have resigned for financial improprieties

18   that are quite analogous to what is at issue

19   in this particular case.

20              But I want to make the fundamental

21   point that in Sawyer, this Court held that a

22   preliminary injunction was not available to

23   restore an officer.    Sawyer was a preliminary

24   injunction.    It's a preliminary injunction

25   against the --




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1            JUSTICE SOTOMAYOR:   That's true.    But

2    weeks later, in Drago, we permitted an officer

3    who was still there to stay, so that was a case

4    of reinstating someone.

5            We have plenty of cases that say

6    keeping someone in place who hasn't left yet

7    is different than issuing a preliminary

8    injunction.

9            GENERAL SAUER:    I think the

10   Court's referring to the Delgado case, and in

11   that particular case --

12           JUSTICE SOTOMAYOR:   Sorry.     I

13   misspoke.

14           GENERAL SAUER:    -- it was a -- there,

15   it was a writ of mandamus to an inferior there,

16   the clerk, to recognize the -- the de facto

17   officers when there was a dispute about who had

18   been validly elected to be the city

19   commissioner or whatever the statute was.

20           And this Court said it could --

21           JUSTICE SOTOMAYOR:   But this is --

22   this is not --

23           GENERAL SAUER:    -- grant a final

24   judgment in mandamus to say you have a

25   ministerial duty to recognize the de facto




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1    officer.

2               That is totally different than issuing

3    a preliminary injunction.       Keep in mind there

4    is no such thing as final mandamus.      In fact,

5    Judge -- Judge Friendly once described that as

6    the starkest of solecisms.       Or, sorry, there is

7    no such thing as a preliminary writ of

8    mandamus.    Judge Friendly described that as the

9    starkest of solecisms.

10              What this Court held in Sawyer is

11   there is no jurisdiction to issue a preliminary

12   injunction restoring a public officer to

13   office, and -- and that's a holding of the

14   Court.

15              JUSTICE SOTOMAYOR:    She never left.

16   She never left.    She's still there.

17              GENERAL SAUER:   She is reinstated.

18   What -- what the Court -- the Court framed its

19   holding as, there is no jurisdiction over the

20   appointment or removal in equity of public

21   officers.

22              So it does not turn on whether or not

23   she's sort of, you know, stoutly staying in

24   office or whether or not she's gone and then

25   sued later.    That doesn't -- nothing turns on




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1    that.

2               JUSTICE JACKSON:   Mr. Sauer --

3               JUSTICE BARRETT:   General Sauer, can

4    I ask you a question that's also related to the

5    stay factors?

6               Justice Sotomayor brought up the

7    public interest here, and we have amicus briefs

8    from economists who tell us that if Governor

9    Cook is -- if we grant you your stay, that it

10   could trigger a recession.

11              How should we think about the public

12   interest in a case like this?

13              GENERAL SAUER:   Yeah.   Two -- two

14   things to say about that.

15              One is, if you look at what actually

16   happened here, she was removed on August 25th

17   and the stock market went up for the next three

18   days.    So we've already had a kind of natural

19   experiment, so to speak, about whether or not

20   the predictions of doom will really be

21   implemented.

22              Surely, that if investors are jittery

23   or whatever the argument is, you would have

24   seen that on August 25th, and you did not see

25   that.    In fact, you have the surprised --




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1            JUSTICE BARRETT:     Well, I'll interrupt

2    you there to say that I don't want to be in the

3    business of predicting exactly what the

4    market's going to do.

5            GENERAL SAUER:     I agree, and -- and

6    that's why I think the Court ought to consider

7    all those amicus briefs and their sort of, you

8    know, predictions of doom with a fairly

9    jaundiced eye.

10           What the Court has to do is weigh --

11   essentially, you have those amicus briefs as a

12   reflection of very elite opinion, elite opinion

13   that what's happened here --

14           JUSTICE BARRETT:     But there's a risk,

15   General Sauer.

16           GENERAL SAUER:     Yes.

17           JUSTICE BARRETT:     I don't want to be

18   responsible for quantifying that risk.    I'm a

19   judge, not an economist.

20           But, if there is a risk, doesn't that

21   counsel in the stay posture, when the equities

22   are at stake, caution on our part?

23           GENERAL SAUER:     I think the Court has

24   to weigh that risk against the risk that there

25   will be a permanent damage to the Federal




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1    Reserve's credibility from allowing an officer,

2    a governor, to remain in office who's engaged

3    in this kind of behavior before she came in

4    office.    That's --

5               JUSTICE BARRETT:   Well, do we also

6    engage in some weighing of our own about how

7    serious we think the misbehavior was in the

8    stay posture, not -- and I'm not talking about

9    once the case was here on the merits.

10              But, you know, if -- if she were

11   accused of murder or something like that, if

12   we're talking about something that was really

13   an infamous crime, should we take the nature of

14   the crime into account in the stay posture in

15   the weighing of the equities?

16              GENERAL SAUER:   I think what the Court

17   ought to take into account is the close nexus

18   between the conduct at issue here and the

19   duties of this incredibly powerful position

20   that has sweeping, powerful authority over the

21   entire United States economy.

22              The governors set interest rates for

23   ordinary Americans all across the country.

24   And, here, there's the appearance of having

25   played fast and loose or at least been grossly




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1    negligent in getting favorable interest rates

2    for herself.

3               JUSTICE BARRETT:    So it's appropriate

4    to take notice --

5               GENERAL SAUER:    What's the message to

6    ordinary Americans that comes out of that is

7    the question for the Court and how do you weigh

8    that against the elite opinion that's reflected

9    in the amicus briefs.       Obviously, President

10   Trump's voice speaks to that concern of

11   ordinary Americans.

12              I think, when you balance the

13   equities, what the Court ought to do is look at

14   the merits, which are extremely strong for us,

15   and then look at its traditional Nken stay

16   factors.    The Court says, when the government

17   is a party, the irreparable harm to the

18   government merges with the public interest.

19   And, here, we have traditional irreparable

20   harms, injuries to the president's ability to

21   remove a principal officer of the United

22   States.

23              When you look at, for example, the

24   originalist evidence we talked about in the

25   Decision of 1789, when everybody said or both




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1    camps were saying, of course, the president can

2    engage in suspensory removals, and we have a

3    preliminary injunction that is conspicuously

4    nonexistent, in your words, in CASA, you know,

5    for 225 years of American history --

6            JUSTICE JACKSON:   But, Mr. Sauer --

7            GENERAL SAUER:   -- that's how it

8    should be balanced.

9            JUSTICE JACKSON:   -- General Sauer,

10   excuse me, I -- I guess I think you may have to

11   be a little bit more specific with respect to

12   the irreparable harm that you are alleging

13   because, really, as Justice Barrett sort of

14   indicated, we are in a stay posture here.

15           So the question is, to what extent do

16   we believe that the president or the public is

17   harmed by allowing Ms. Cook to remain in her

18   position for the pendency of this case?

19           I'm not sure that we have evidence

20   here that Ms. Cook is an immediate threat to

21   the public, that she's been in this position

22   for a long time, the kinds of things that

23   you're pointing to, as Justice Sotomayor

24   indicates, are not related to conduct while

25   in office.




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1            So it would seem to me that, on the

2    stay factors, you would have to say more about

3    the harm of leaving her there for the next

4    however many months while this case is being

5    litigated.

6            GENERAL SAUER:   We have a remedy here,

7    which is a preliminary injunction, that this

8    Court squarely held in Sawyer there was no

9    jurisdiction to issue.

10           JUSTICE JACKSON:   Yeah, but I'm not

11   talking about the --

12           GENERAL SAUER:   So it's about

13   framing --

14           JUSTICE JACKSON:   -- I'm not talking

15   about the Court's power to do it.   I'm talking

16   about assuming we have the power for the

17   moment, I appreciate that you say we don't, but

18   assuming that we do, the question is what is

19   the harm of allowing that injunction to remain

20   because she's in office now and would just

21   continue.

22           GENERAL SAUER:   Among other reasons,

23   we assert grievous irreparable injury to the

24   public perception to the Federal Reserve of

25   allowing her to stay in office.   They argue




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1    that this is going to cause the markets to

2    tank.

3               JUSTICE JACKSON:   You have evidence

4    related --

5               GENERAL SAUER:   When she was first

6    removed, they didn't tank.

7               JUSTICE JACKSON:   You have evidence

8    related to the public perception, or is this

9    just the president's view?

10              GENERAL SAUER:   The president has made

11   that determination.    It's reflected in the

12   language of the dismissal order, and as I

13   discussed remotely during this --

14              JUSTICE JACKSON:   Did the president

15   make that --

16              GENERAL SAUER:   -- close week --

17              JUSTICE JACKSON:   Did the president

18   make that determination based on evidence

19   presented to him in the context of some kind of

20   hearing related to Ms. Cook's conduct?

21              GENERAL SAUER:   A Federal Reserve

22   governor who sets interest rates for the entire

23   country appears to have engaged in improper

24   behavior --

25              JUSTICE JACKSON:   No, no, no, I




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1    understand -- I --

2              GENERAL SAUER:   -- to obtain favorable

3    interest rates for herself --

4              JUSTICE JACKSON:   You're -- you're --

5    you're repeating --

6              GENERAL SAUER:   -- by seeing it so

7    low --

8              CHIEF JUSTICE ROBERTS:   Counsel --

9              JUSTICE JACKSON:   -- you're

10   repeating --

11             CHIEF JUSTICE ROBERTS:   -- please

12   allow the Justice --

13             GENERAL SAUER:   I'm sorry.

14             JUSTICE JACKSON:   You're repeating the

15   allegation.    What I'm asking you is the

16   evidence that supports that allegation.

17   Traditionally, when an allegation is made about

18   someone's misconduct or whatnot, there's an

19   opportunity for that person to present

20   evidence, for the other side to present

21   evidence.   And even if the president was the

22   final arbiter of this, one would expect that he

23   would do so on the basis of evidence.

24             So what I'm trying to understand is

25   what is the evidence that has been presented




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1    and considered with respect to Ms. Cook's

2    alleged misconduct?

3              GENERAL SAUER:   Well, the removal

4    order addresses that because it --

5              JUSTICE JACKSON:    What is the removal

6    order?   The -- the -- the Truth Social post?

7              GENERAL SAUER:   It's the -- no.    It's

8    the August 25th letter.      I think it's Doc 1-4

9    in the district court.     But the removal order

10   addresses that.    The evidence is you have

11   mortgage applications within two weeks of each

12   other that make clearly conflicting

13   representations.

14             JUSTICE JACKSON:    Was Ms. Cook given

15   the opportunity in some sort of formal

16   proceeding to contest that evidence or explain

17   it?

18             GENERAL SAUER:   Not a formal

19   proceeding.   She was given an opportunity in

20   public because she was notified --

21             JUSTICE JACKSON:    In the world?

22             GENERAL SAUER:   Yes.

23             JUSTICE JACKSON:    Like, she was

24   supposed to post about it and that was the

25   opportunity to be heard --




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1             GENERAL SAUER:   Yeah.

2             JUSTICE JACKSON:   -- that you're

3    saying is -- was afforded to her in this case?

4             GENERAL SAUER:   Yes, and she's had

5    plenty of opportunities in the ensuing months

6    where we've had ongoing litigation where

7    there's never been a personal statement

8    addressing that --

9             JUSTICE GORSUCH:   General --

10            GENERAL SAUER:   -- or -- or justifying

11   it.

12            JUSTICE GORSUCH:   General, let's --

13   let's -- just suppose with me hypothetically

14   for the moment that the Court read the -- the

15   act to require notice and a hearing.     I assume

16   everybody has notice now.   Here we are.

17            What would that hearing look like?

18            GENERAL SAUER:   I would point to what

19   the Court has said in Vermont Yankee, which

20   this Court is very reluctant to dictate

21   procedures to even federal agencies.     And,

22   here, the Court would be dictating or a court

23   would be dictating procedures to the president.

24            I think they rely heavily on

25   Loudermill.   Obviously, we dispute that there's




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1    any notice and hearing requirement.     But

2    Loudermill requires only very minimal, flexible

3    procedures.

4               JUSTICE GORSUCH:   That would be

5    calling Ms. Cook into the Roosevelt Room,

6    sitting across a conference table, listening

7    for I don't know how long, how much evidence,

8    is a lawyer required, and then -- and then

9    making a decision?    Could that suffice, you

10   think?   What would -- what would be required?

11              GENERAL SAUER:   It would probably be

12   entire -- if -- if the Court were to conclude

13   that, it would be -- have to be entirely

14   dependent on the executive to decide, and

15   that's what the case law indicates.

16              Certainly -- and I think the question

17   points out a great weakness in their argument,

18   which is that the word "cause" does not include

19   notice and a hearing by -- on its face.

20   Congress knows how to provide notice and a

21   hearing.    It did so in the NLRA one month

22   before it -- it reenacted the for-cause

23   restriction here in 1935.

24              And because it's not there, the Court

25   has nothing to provide guidance on that point.




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1    And if the Court were to conclude that, it

2    would be up to the executive's discretion.

3               JUSTICE GORSUCH:   So just -- just --

4    just a meeting across a conference table

5    finished with "you're fired"?     I mean --

6               GENERAL SAUER:   All Loudermill says is

7    that you have to be told of what the basis is

8    of the allegations against you and give a

9    chance to tell your side --

10              JUSTICE GORSUCH:   Okay.

11              GENERAL SAUER:   -- of the story.    We

12   believe that was provided in the five-day

13   window --

14              JUSTICE GORSUCH:   Yeah.

15              GENERAL SAUER:   -- between the Truth

16   Social post and -- and the removal letter.

17              JUSTICE GORSUCH:   And then --

18              JUSTICE KAGAN:   But do --

19              JUSTICE GORSUCH:   -- and then you

20   mentioned on remedy that there's no such thing

21   as a preliminary injunction for mandamus, and I

22   just wanted to hear you a little bit more on

23   that.    You mentioned Judge Friendly.      Please,

24   thoughts.

25              GENERAL SAUER:   So the contention in




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1    the amicus briefs is that you can rely on

2    Delgado to sort of bypass the holding of Sawyer

3    and say that mandamus can provide the

4    essence -- essentially, the same relief as a

5    preliminary injunction.     I guess the argument

6    would be you'd have to mandamus everybody, so

7    all the members of the -- other members of the

8    Board, to treat her as she's still -- as if

9    she's still a governor, all the staff to treat

10   them as -- as -- as if they were still a

11   governor, because Delgado held, where there was

12   the city clerk who can't decide who was validly

13   elected city commissioner, the Court held you

14   could mandamus that clerk to recognize the de

15   facto officer in the interim.

16              And that doesn't work for a couple

17   reasons.    First of all, this is a preliminary

18   injunction.    Mandamus would have to be a final

19   judgment.    And that's what Judge Friendly said.

20   There is no preliminary mandamus.     That's the

21   starkest of solecisms.

22              JUSTICE KAGAN:   Do -- do I understand

23   you, General, going back to Justice Gorsuch's

24   first question, to continue to maintain that,

25   in fact, there is no requirement for notice and




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1    opportunity for a hearing?      Is that right?

2               GENERAL SAUER:    Absolutely, yes.

3               JUSTICE KAGAN:    And -- and -- and why

4    is that?    Just because it's not stated in the

5    statute?

6               GENERAL SAUER:    It's not stated

7    explicitly in the statute, and Congress knows

8    how to provide that because --

9               JUSTICE KAGAN:    But, because the --

10              GENERAL SAUER:    -- it did so a month

11   earlier in a similar statute and has done so in

12   many, many statutes.

13              JUSTICE KAGAN:    It -- it doesn't do

14   that -- yeah, I thought that, with respect to

15   the neglect, inefficiency standard, you do

16   recognize notice and a hearing for that but not

17   in this statute.    Why the difference?     Because

18   neither is stated.

19              GENERAL SAUER:    Yeah.   Two reasons.

20   In both Shurtleff and Reagan, this Court

21   expressly recognized that that phrase, "INM,"

22   would or specified causes would bring with it

23   notice and a hearing.       And that's part of the

24   Court's holding in Shurtleff, as -- as I read

25   it, because, there, it was an INM standard.




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1               JUSTICE KAGAN:   Right.

2               GENERAL SAUER:   And there was a

3    removal with no notice or hearing.       And the

4    Court held, well, clearly, this wasn't for

5    INM --

6               JUSTICE KAGAN:   I mean, your --

7               GENERAL SAUER:   -- because it was

8    notice and a hearing.

9               JUSTICE KAGAN:   I think your reasoning

10   would be that that was a mistaken holding

11   because it -- since it's not stated in the

12   statute, there's no need for notice and a

13   hearing.

14              GENERAL SAUER:   Not exactly because

15   the old soil argument that we reject as to just

16   simply cause is, we admit, much stronger when

17   it comes to specified causes.        So we don't

18   think the Court necessarily got it wrong in

19   Reagan when it said specified causes mean that

20   notice and a hearing are provided because the

21   case law, it's the one point on which the sort

22   of background case law does seem to be

23   unanimous.

24              On the other issues where they

25   contended the case law all goes in one




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1    direction, you have their own sources saying

2    they're all over the map.     They're directly

3    contradictory, for example, in the Tuttle Law

4    Review article.

5              JUSTICE KAGAN:    But the outcome of

6    your position is that in this case, without --

7    where you don't have the inefficiency, neglect

8    standard, the president need not provide any

9    notice, the president need not provide any

10   hearing; the president just really has to say:

11   Ms. Cook, you're fired?

12             GENERAL SAUER:    He has to provide a

13   cause.   We contend that there has to be a

14   cause, something that relates to conduct,

15   fitness, sufficiency, or competence.      We

16   concede it cannot be for policy disagreement

17   or -- or for no reason at all or at will.

18             CHIEF JUSTICE ROBERTS:    General Sauer,

19   if -- if you're correct that courts do not have

20   the authority to reinstate a removed officer,

21   why are we wasting our time wondering if

22   there's cause or not?      Because, even if we say,

23   yes, there is cause, he shouldn't have removed

24   her, but we don't have the authority to order

25   her reinstatement, what's the -- how is that




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1    consistent with -- with the time and energy

2    being spent on determining if there's cause?

3            GENERAL SAUER:   We agree.    That's an

4    alternative basis.   As we say in our brief,

5    that's reason enough to rule in our favor, and

6    we have a holding of the Court, Sawyer.     We

7    also have this tradition I was referring to

8    earlier of recognition that runs from the

9    Decision of 1789 to all the opinions in Myers.

10   It's alluded to in Wiener and so forth,

11   recognizing the president's power of interim or

12   suspensory removals.

13           So we agree that's an alternative.

14   That's an independent basis for us to prevail.

15           CHIEF JUSTICE ROBERTS:   Well, it's an

16   independent basis.   I guess it's not

17   independent in the sense that, if that's right,

18   the other one is irrelevant, right?     It seems

19   to me that, if there is any level of cause, and

20   you indicate that there is some level of cause,

21   right, well, then you can't be right about the

22   idea that courts can't order anybody who's been

23   removed to be reinstated.

24           GENERAL SAUER:   There is a traditional

25   remedy to reinstate wrong -- we don't dispute




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1    there's a traditional remedy to reinstate

2    wrongfully removed officers, which is mandamus.

3    But they don't argue mandamus here, and the

4    reason they don't argue mandamus is they face a

5    number of insuperable obstacles to prevailing

6    in mandamus.    One is, of course, going all the

7    way back to Marbury against Madison.       You can't

8    mandamus the president in his discretionary

9    acts.    In addition to that, there is no

10   preliminary writ of mandamus, as Judge Friendly

11   pointed out and the Seventh Circuit has held.

12   In other words -- and keep in mind that the

13   standard in mandamus would be clear and

14   indisputable right to relief.

15              And, in fact, this is an ultra vires

16   challenge, where the standard is exactly the

17   opposite and you can't decide.

18              CHIEF JUSTICE ROBERTS:   So there's a

19   circumstance in which a court can order the

20   restatement of a wrongly removed officer?

21              GENERAL SAUER:   But the -- there is

22   a -- a traditional remedy, mandamus.       Here,

23   obviously, it would be quo warranto if there

24   were two competing claimants, but where there's

25   just the one, that would be mandamus.       And they




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1    have not argued mandamus.     They're trying to

2    find their way around mandamus because the

3    standards to prevail under mandamus are

4    insuperable and they clearly cannot meet them.

5               JUSTICE JACKSON:   But, General --

6               CHIEF JUSTICE ROBERTS:   Thank you.

7               I'm sorry.

8               JUSTICE JACKSON:   Oh.

9               CHIEF JUSTICE ROBERTS:   Justice

10   Thomas?

11              Justice Alito?

12              JUSTICE ALITO:   Is there any reason

13   why this whole matter had to be handled by

14   everybody, by the executive branch, by the

15   district court, by the D.C. Circuit, in such a

16   hurried manner?

17              We -- you began by laying out what you

18   claim to be the factual basis for the for-cause

19   removal, but no court has ever explored those

20   facts.    Are the mortgage applications even in

21   the record in this case?

22              GENERAL SAUER:   I know that the text

23   of the social media post that screenshots the

24   mortgage applications is in the record.       But I

25   don't recall if the -- the paperwork itself is




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1    in the record, in the district court's record.

2              JUSTICE ALITO:   So, when this was

3    before the executive branch, it was handled in

4    a very cursory manner.     The district court

5    decided the case on the ground that "for cause"

6    doesn't mean anything that happened before the

7    person took office.   And I'll question

8    Mr. Clement about that when he's -- when he --

9    when he stands up.

10             The D.C. Circuit decided it on two

11   grounds, the same as the district court and

12   that there's a property interest in holding the

13   position of governor of the Federal Reserve

14   Board.

15             Am I right on that?

16             GENERAL SAUER:   Not exactly.   The --

17   the D.C. Circuit stay panel relied only on the

18   property interest, did not rely on the

19   pre-office misconduct, and that's

20   insupportable.   We --

21             JUSTICE ALITO:   Well, did it not hold

22   that that's what "for cause" means?

23             GENERAL SAUER:   My recollection is

24   that the D.C. Circuit -- the Garcia opinion in

25   the D.C. Circuit relied solely on Loudermill




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1    and the due process property interest, which is

2    baseless for the reasons we say.     And now the

3    district -- the district court relied on the --

4    the twin grounds, both that Loudermill

5    rationale and also the --

6               JUSTICE ALITO:   All right.    I stand --

7               GENERAL SAUER:   Yeah, yeah.

8               JUSTICE ALITO:   -- I stand corrected

9    on that.    But those are the only two issues

10   that were decided by the lower courts?

11              GENERAL SAUER:   That's correct.

12              CHIEF JUSTICE ROBERTS:   Justice

13   Sotomayor?

14              JUSTICE SOTOMAYOR:   I have a couple of

15   follow-ups.

16              On Reagan and Shurtleff, you're

17   relying on those two cases for your proposition

18   that cause could be whatever the person, the

19   authority, decides.    But Reagan and Shurtleff

20   were very careful in holding that the only

21   reason that was true was because there would be

22   life tenure involved otherwise.

23              It was very careful to distinguish its

24   holding from cases in which there were a

25   tenured position and there was a for-cause




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1    provision.    So you're extrapolating, correct?

2            GENERAL SAUER:    I disagree with that.

3    We read Reagan differently.    If you have

4    that -- those two key paragraphs in Reagan --

5            JUSTICE SOTOMAYOR:     Well, we can both

6    look at it.

7            GENERAL SAUER:    -- Your Honor, they

8    don't talk about fixed term at that point.

9            JUSTICE SOTOMAYOR:     I think the

10   direct -- but the Court recognized the rule,

11   and I'm quoting from the case, "where causes of

12   removal are specified by statute, as also where

13   the term of office is for a fixed period,

14   notice and hearing are essential."

15           Here, you need for cause and there's a

16   fixed period of tenure.   And Reagan very

17   clearly said notice and a hearing are required.

18           So, if I move on from that, I go back

19   to Justice Alito's question of you.    I

20   thought -- and -- and the Chief's.    I thought

21   there was a factual dispute.    As I understood

22   it, Ms. Cook's letter, her attorney's letter,

23   and, quite frankly, I've never understood that

24   a letter from a lawyer wasn't a representation

25   by a client.   This is a new standard I've never




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1    heard of before in an informal proceeding.

2               If the president can go by social

3    media and one believes that that is adequate

4    notice under law, I'm hard-pressed to think a

5    letter from a lawyer is not notice from the

6    adversary.    But we can move on from that.

7               The letter from Ms. Cook says:    The

8    Michigan bank gave me permission to rent

9    because I got a job in Washington.    I had to

10   move from New York when I got my job in

11   Washington, and, frankly, I renovated my

12   apartment the year before, thinking I would be

13   in New York for the rest of my life.       Things

14   change, and the bank in Michigan, at least they

15   represent, will say there was no deceit of

16   them.

17              As to the mortgage issue in Atlanta,

18   Ms. Cook's lawyer represents that the papers

19   submitted to the bank disclosed the fact that

20   this was a vacation home, so they may not have

21   experienced deceit.

22              If they didn't experience deceit, then

23   you're left with gross negligence, and the

24   question becomes, is it grossly negligent to

25   make a mistake on a mortgage application?      And




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1    I don't know that gross negligence has ever

2    risen to the level of a mistake.     So there is a

3    factual issue.

4               Now the question is, who resolves that

5    issue, the level of review of that decision,

6    and those are all questions, as Justice Alito

7    pointed to, have not been addressed below,

8    correct?

9               GENERAL SAUER:   What was addressed

10   below is I think exactly what I had in the

11   exchange with Justice Alito.

12              JUSTICE SOTOMAYOR:   Just the due

13   process right to notice and a hearing by the

14   circuit court and for cause being something

15   that has to be only what's at the time of in

16   office.

17              I do agree with you, common law did

18   permit pre-office conduct to be considered but

19   only if for an infamous crime.     I don't think

20   this rises to an infamous crime.

21              GENERAL SAUER:   If I could say two

22   things about that.

23              First, on the -- the -- the narrow

24   point about whether or not a letter of counsel

25   can create a factual dispute in this context,




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1    that's the holding of this Court in Codd

2    against Velger, where the Court said that

3    suggestions of counsel are not enough.       It's

4    the party who has to -- to do it.      So there

5    were representations of counsel there, and the

6    Court held that that wasn't enough to bring it

7    back --

8               JUSTICE SOTOMAYOR:   That's in a legal

9    proceeding.    This is an informal proceeding.      A

10   legal proceeding.

11              GENERAL SAUER:   Yeah.   The point was

12   there had never been any representation by --

13   by the party in any context, formal or

14   informal.    And we -- that's exactly what we

15   have here.    That's the one point.    I can't

16   remember the second point I was going to make

17   in response to that.

18              JUSTICE SOTOMAYOR:   Thank you.

19              CHIEF JUSTICE ROBERTS:    Justice Kagan?

20              JUSTICE KAGAN:   General, can I take

21   you back to the Chief Justice's question, the

22   remedial question, the last one, because, in

23   response to him, you said kind of no worries

24   because there's a traditional remedy of

25   mandamus.    But then pretty much in the next




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1    sentence you said, but, of course, mandamus

2    doesn't apply here because it's the president.

3              So, I mean, when we're talking about

4    the president's removal powers, you're

5    essentially saying that the only remedy doesn't

6    apply.   And that brings you back to the Chief

7    Justice's question, which is, well, if -- if

8    there's no way to reinstate, like, what does

9    this cause requirement amount to?

10             GENERAL SAUER:   Well, Congress adopted

11   a policy choice to impose on the president a

12   cause requirement and not an INM requirement.

13   As Justice Alito pointed out in the CFPB

14   funding case, this was a hard-fought compromise

15   between two influential camps.

16             JUSTICE KAGAN:   Yeah, but I think -- I

17   think there's some kind of cause.    It doesn't

18   have to be inefficiency, neglect, malfeasance.

19   But there is some kind of cause that's

20   necessary.   You said that yourself in response

21   to my last question, that the president has to

22   state a cause.

23             But, if then you're saying, well, even

24   if he flunks whatever that requirement is,

25   there's no way to reinstate the person, there's




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1    no way to use the mandamus route, what does it

2    amount to?    It seems pretty -- it seems

3    non-effectual.

4               GENERAL SAUER:   It is a -- if it is

5    non-effectual, which we dispute, we think it's

6    very effectual.    And it's proven to be

7    effectual in history because it provides the

8    governors with the most important protection,

9    which is that Congress apparently wanted to

10   give them, which is removal for -- protection

11   against removal for policy disagreements.       And

12   governors have not been removed for policy

13   disagreements.    That has been the perspective.

14              JUSTICE KAGAN:   Except there's no

15   way -- there's no way to test that.     There's no

16   way either that the person can come in and have

17   that meeting in the Oval Office or the

18   Roosevelt Room or wherever else, saying I think

19   you're really getting rid of me for policy

20   reasons.    There's no way for a court to

21   evaluate that.

22              The president just has to say:    I'm

23   removing you for cause.     You committed gross

24   negligence.

25              GENERAL SAUER:   And there's no




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1    question for all the reasons we discussed in

2    our briefing that that confers broad discretion

3    on the president.    Now there's an outer

4    perimeter that is subject to policing by

5    judicial review, policy disagreement, no cause

6    at all and so forth, but that is -- confers

7    broad discretion on the president.

8            But, even if it was de novo review

9    here, gross negligence in a very important

10   financial transaction that has this close nexus

11   with what a governor does --

12           JUSTICE KAGAN:    Does the president

13   have to say what --

14           GENERAL SAUER:    -- would satisfy it.

15           JUSTICE KAGAN:    Does the president

16   have to say what the gross negligence is, or

17   can the president just say:    I'm removing you,

18   it's not for policy, it's for gross negligence?

19           GENERAL SAUER:    So we have, I think,

20   conceded in the briefing that that sort of

21   determination would be subject to judicial

22   review because he hasn't specified the cause.

23           Now the case law, that's a -- that's a

24   borderline case.    The case law goes in

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1    the cases that we cite in our brief, kind of

2    goes the other way, in a way that would be

3    stronger for us, but we haven't disputed that

4    in this case, that if it was -- there was no

5    cause provided at all, then that would be

6    subject to judicial review and likely an

7    invalid removal.

8               JUSTICE KAGAN:   Thank you.

9               CHIEF JUSTICE ROBERTS:   Justice

10   Gorsuch?

11              JUSTICE GORSUCH:   I -- just to follow

12   up on Justice Kagan's questions, I -- I think

13   in them was the question, if you think mandamus

14   doesn't apply to the president at all, ever,

15   how could you ever test the things you say can

16   be tested?    He has to remove for cause.      He

17   can't remove for policy disagreements.

18              That might be one.   The president

19   says:    I remove you for policy disagreements.

20   He's open about it, let's say.      It could

21   happen, right?    You would say still mandamus is

22   not available, I think, wouldn't you?

23              GENERAL SAUER:   I think we would.       Now

24   that might be a closer case because the

25   mandamus statement -- standard is clear and




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1    indisputable right when we have conceded that

2    policy disagreement would not be available.

3    Actually, that might be a case where mandamus

4    might be available with the caveat that how

5    would Marbury apply to that.     Marbury says you

6    cannot mandamus the president in a

7    discretionary decision.

8               And so baked into our jurisprudence

9    from the dawn of -- of this Court --

10              JUSTICE GORSUCH:   Would you say that

11   that's not a --

12              GENERAL SAUER:   -- is the notion

13   there's going to be some things the president

14   does that you can't dispute.

15              JUSTICE GORSUCH:   Would you say that's

16   not a discretionary decision?     If the president

17   says:    I fire you for -- for policy reasons,

18   that that would be outside of his discretion

19   and, therefore, subject to mandamus?

20              GENERAL SAUER:   Essentially.   The --

21   the argument would have to be that would be

22   ministerial within the --

23              JUSTICE GORSUCH:   Yeah.

24              GENERAL SAUER:   -- within the meaning

25   of Marbury.    And then I think that -- that --




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1    that standard in Marbury kind of gets ported

2    into the standard in Cheney, clear and

3    indisputable right.

4            JUSTICE GORSUCH:     Yeah.   It -- it --

5    it would be clear and indisputable and,

6    therefore, could run against the president in

7    that case?

8            GENERAL SAUER:     Hypothetically.     I'd

9    to have do a lot more study before taking a

10   firm position on that.

11           CHIEF JUSTICE ROBERTS:       Justice

12   Kavanaugh?

13           JUSTICE KAVANAUGH:    For present

14   purposes, you accept the constitutionality of

15   the for-cause removal provision for the Federal

16   Reserve, and that is what protects the

17   independence of the Federal Reserve.      What, in

18   your view, is the purpose of that independence?

19           GENERAL SAUER:     It protects the

20   govern -- exactly reflecting the plain text of

21   the statute, it protects the governors from

22   removal for policy disagreement or for no

23   reason at all.

24           JUSTICE KAVANAUGH:    And what is the

25   broader purpose of that?




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1               GENERAL SAUER:   To preserve the

2    independence of the Federal Reserve.

3               JUSTICE KAVANAUGH:   And what is the

4    broader purpose of that?

5               GENERAL SAUER:   Well, there is a

6    number of reasons that are discussed by their

7    amici and I think not disputed by us, which is

8    that there is a -- you know, a long tradition

9    of having this exercise of monetary policy be

10   exercised independent of, you know,

11   executive -- executive influence.

12              And we don't dispute that that's what

13   Congress was doing in that statute.     And,

14   again, we have not disputed the validity of the

15   for-cause removal restriction here.

16              JUSTICE KAVANAUGH:   And why is that

17   independence important in your view?

18              GENERAL SAUER:   For -- I -- I don't --

19   we don't dispute the importance of that for

20   many of the reasons that their amici say, but

21   we emphasize that there's a balance struck

22   here.    This is not a ironclad "you can never be

23   removed."    There is a cause removal authorized

24   in --

25              JUSTICE KAVANAUGH:   But -- but, on




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1    that, your position that there's no judicial

2    review, no process required, no remedy

3    available, a very low bar for cause that the

4    president alone determines, I mean, that would

5    weaken, if not shatter, the independence of the

6    Federal Reserve that we just discussed.

7              GENERAL SAUER:   We disagree with that.

8    And I would point to the point that -- the

9    point you made that this is a low bar for

10   cause.   In a sense, it's a very high bar.   It's

11   a very strong protection because it does

12   protect them from the one thing that Congress

13   was apparently most worried about, which is a

14   removal for policy disagreement.

15             JUSTICE KAVANAUGH:   But it would be in

16   the view of the president, the president who

17   might have a policy disagreement, and there's

18   no judicial review, and the president can just

19   define it on his or her own, right?

20             GENERAL SAUER:   One of the strongest

21   traditions in this Court's jurisprudence is

22   the -- the sort of presumption of regularity to

23   the president's action.    That has applied to

24   this provision, I think, effectively for 112

25   years and it continues to do so.




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1            JUSTICE KAVANAUGH:   Let's talk about

2    the real-world downstream effects of this

3    because, if this were set as a precedent, it

4    seems to me, just thinking big picture, what

5    goes around comes around.

6            All of the current president's

7    appointees would likely be removed for cause on

8    January 20th, 2029, if there's a Democratic

9    President or January 20th, 2033, and then we're

10   really at at-will removal.

11           So what are we doing here?

12           GENERAL SAUER:   Yeah.

13           JUSTICE KAVANAUGH:   What -- what is --

14   you know, we started -- that's why I started

15   with what's the purpose of the independence and

16   the for-cause removal.   If we accept all these

17   no procedure, no judicial review, no remedy,

18   you know, that's what's going to happen, I

19   think, and then -- then where are we?

20           So do you dispute that that is, you

21   know, the -- the real-world effect?

22           GENERAL SAUER:   I cannot predict what

23   future presidents may or may not do, but the

24   argument strikes me as a policy argument --

25           JUSTICE KAVANAUGH:   Well, history is a




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1    pretty good guide.   Once these tools are

2    unleashed, they are used by both sides and

3    usually more the second time around.    And I

4    think that's what -- that's what we have to

5    make sure we're -- again, that can't drive the

6    decision necessarily.    We have to be aware of

7    what we're doing and the consequences of your

8    position for the structure of the government.

9            GENERAL SAUER:    Two points there.     I

10   dispute the characterization that these tools

11   have been unleashed.    The president has always

12   had this tool to remove governors for -- for --

13   for financial improprieties.   Now the history

14   is, including twice in the last four years,

15   governors who have been credibly accused of

16   financial improprieties have resigned.    They

17   haven't forced the president to remove them.

18           And I think the more sort of

19   fundamental point is that cause is a standard

20   that is quite deferential to the president.

21   Congress consciously adopted that instead of a

22   more restrictive standard like INM that was

23   for, by all appearances, a legislative

24   compromise between two camps, one of which

25   wanted to give the president complete control




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1    and one of which --

2               JUSTICE KAVANAUGH:   I agree with you

3    that there's a balance here, and so I

4    understand that.    I'm not saying there's no

5    interests on the other side here.     I -- I get

6    that.

7               But, again, thinking about the real

8    world and the brief of the former Governors of

9    the Federal Reserve, I mean, your position,

10   again, because you say, well, the president

11   can't say it's for policy reasons, which may be

12   what's really -- again, in not talking about

13   the current situation and other situations in

14   the future -- what's really driving it.      It

15   incentivizes a president to come up with

16   what -- as the Federal Reserve former Governors

17   say, trivial or inconsequential or old

18   allegations that are very difficult to

19   disprove.    It incentivizes kind of the search

20   and destroy and find something and just put

21   that on a piece of paper, no judicial review,

22   no process, nothing, you're done.

23              I mean, again, what -- what are we

24   doing when we have a system that -- that

25   incentivizes that and leads to that?       Now,




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1    again, you can dispute that you think it's

2    going to lead to that.    And, again, I'm not

3    talking about the facts of this case.   I'm

4    taking -- I don't know the facts of this case.

5    I'm taking no position on that.

6            GENERAL SAUER:    This Court has since

7    Martin against Mott, running all the way

8    through Trump against United States, Trump

9    against Hawaii, a whole host of decisions,

10   accorded, consistently afforded the president

11   the presumption of regularity in his action and

12   consistently declined to probe a president's

13   actions for, you know, their -- for their

14   subjective motivations.

15           And so, in the hypothetical question

16   that you pose, that hypothetical future

17   president should also be afforded the very same

18   sort of deference and -- and --

19           JUSTICE KAVANAUGH:    But that leads --

20   I mean, that brief, that amicus brief, cites

21   Justice Scalia's dissent in Morrison, which is

22   always a good place to look for wisdom, and

23   the -- the concern that you're putting all

24   these resources -- because you can't say it's

25   for policy, putting all these resources, let's




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1    find something, anything, about this person

2    and -- and -- and -- and then we're good.     And,

3    by the way, there's no judicial review, so

4    we're really good.   And there's no

5    administrative process.

6            GENERAL SAUER:    And, again, I disagree

7    with that.   I think that the -- that argument,

8    that presumption, when applied to the

9    president, contradicts a very, very -- two very

10   strong strains in this Court's jurisprudence

11   that go back to the founding.

12           JUSTICE KAVANAUGH:   And what's the

13   fear of more process here?   In the sense that

14   process protects you, in the sense of helping

15   you make better, more accurate decisions, and

16   it helps -- process helps you then convince

17   people on the outside that you've made a

18   considered, thorough, appropriate decision,

19   what's the concern about more process?

20           GENERAL SAUER:    I don't think we think

21   that process is necessarily bad.   In this case,

22   there's two reasons why, you know, process is

23   not the right answer, among others.

24           One is, in Vermont Yankee, this Court

25   said we're not going to dictate procedures to




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1    executive agencies.    A fortiori you should

2    dictate procedures to the president.       Our

3    contention is that there already has been a

4    process.    There was a social media post that

5    said, look, these two documents contradict each

6    other.    And the response was defiance.      So

7    there was a chance to tell -- in the words of

8    Loudermill, to tell her side of the story.         It

9    just wasn't -- it wasn't adopted.

10              JUSTICE KAVANAUGH:   Okay.   Again --

11              GENERAL SAUER:   And, in fact, there

12   hasn't been for months since then any clear

13   explanation other than it was an inadvertent

14   notation.    It's just the kind of inadvertent

15   notation that ordinary people can be indicted

16   for.

17              JUSTICE KAVANAUGH:   And, again, none

18   of my questions or comments are about the facts

19   of this case.    I don't know the facts of this

20   case.    But thank you.

21              CHIEF JUSTICE ROBERTS:   Justice

22   Barrett?

23              JUSTICE BARRETT:   I want to pick up on

24   that question about why -- Justice Kavanaugh

25   said why are you afraid of a hearing or what




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1    would there be that would be wrong with

2    process.

3               I mean, you spent a lot of time

4    litigating the case.    You know, it's gone up

5    from the district court to the court of

6    appeals, and now we're here.     And if there

7    isn't anything to fear from a hearing and if

8    you have the evidence, why couldn't those

9    resources have been put into a hearing?

10              I understand you think that you don't

11   have to provide one either because of the

12   statute or because of the Due Process Clause.

13   And that's fine.    But, in thinking about

14   irreparable harm to the government, if one way

15   to -- one step you could take to reduce your

16   irreparable harm to show that there really was

17   cause is just to have a hearing, why not?

18              GENERAL SAUER:   I don't think it's a

19   question of resource allocation.     It's our

20   position that adequate process was already

21   provided.    So, if it's a question if the

22   district court's order has to go further and

23   then go further and go further again, all

24   without any legal or constitutional authority

25   in our view, we think that imposes irreparable




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1    injury on the executive branch.

2               JUSTICE BARRETT:   Well, they told you

3    to go farther but not that much farther.      I

4    mean, okay, so there was the Truth Social posts

5    and then, you know, burden on her to come back

6    in five days.    I understand that's your

7    position.

8               But, you know, Justice Gorsuch posited

9    sit down across the table in the Roosevelt

10   Room, where the president provides Ms. Cook,

11   Governor Cook, with the evidence and waits to

12   hear what her response is, gives her a chance

13   to defend herself.    I mean, that just wouldn't

14   be that big a deal, it seems, if that's enough.

15              GENERAL SAUER:   Again, it's an

16   intrusion on the executive branch to dictate

17   what procedures it ought to provide --

18              JUSTICE BARRETT:   So it's the standing

19   on principle --

20              GENERAL SAUER:   -- certainly to the

21   president.    And our position is he has provided

22   process.    He's provided adequate process.   And

23   if the district court said, well, that wasn't

24   quite good enough, try again, and then we try

25   again, and the district court says, no, that




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1    wasn't quite good enough, try again, we have

2    gone -- left Vermont Yankee way in -- in the

3    rearview mirror.

4               JUSTICE BARRETT:   Do you concede that

5    if the statute was an INM statute that under

6    Shurtleff you would have to provide process?

7               GENERAL SAUER:   Notice and hearing,

8    yes.

9               JUSTICE BARRETT:   Yes.

10              GENERAL SAUER:   We don't dispute that.

11              JUSTICE BARRETT:   And I want to go

12   back to one of Justice Kagan's questions.

13              She said, well, in Shurtleff, the

14   statute itself didn't say that you got notice

15   and a hearing for INM, but the Court said that

16   you did.

17              Here, the statute does say "cause."

18   "Cause" isn't as specific maybe as INM, but it

19   does identify the grounds that the president

20   must have for removal.

21              Why shouldn't we do the same thing

22   that the Shurtleff court did and say that,

23   well, as we said in Shurtleff, when a statute

24   specifies the grounds for removal, there must

25   be notice and a hearing given?




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1            GENERAL SAUER:   Because the case law,

2    presumably Shurtleff, when it said that as to

3    INM, notice -- you get notice and a hearing,

4    was relying on what we don't dispute is a -- as

5    far as I can tell, a pretty consistent strain

6    in the case law that that's what that means.

7    It gives you specified causes, like that INM,

8    give you notice and a hearing.

9            The case law on cause is the opposite.

10   I mean, look at the lower court opinion in

11   Reagan, at the court of claims opinion, where

12   they say cause does not mean you get a notice

13   and a hearing.   And we cite a strong line in

14   the -- in the background case law as well.

15           Now they dispute and they say there's

16   some cases going the other way.   However, the

17   notion that they -- they are making an old soil

18   argument.   They're saying, oh, this -- in order

19   to -- to prevail on that, it has to be so

20   well-settled and clearly established that there

21   really wasn't a dispute about it.

22           I mean, look, I can't emphasize

23   enough, you know, what, for example, the Tuttle

24   Michigan Law Review article from 1905 that's

25   heavily relied on, for example, in the Manners




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1    amicus brief that they rely heavily on in their

2    supplemental brief, it says the case law is all

3    over the map on all of these issues.     That --

4    that treatise says the courts differ on almost

5    every conceivable part of this question.

6               The only point of consistency is that

7    specified cause is INM, which also, as we can

8    see, is a holding of the Court in Shurtleff,

9    whereas "cause" just doesn't mean that.

10              We cite all these cases that they

11   dispute, and there's this battle about what did

12   the 19th century case law mean.     Keep in mind,

13   in the context of that battle, they bear the

14   burden of making the old soil argument.

15              CHIEF JUSTICE ROBERTS:   Justice

16   Jackson?

17              JUSTICE JACKSON:   Just following up

18   really quickly on that point, isn't -- isn't

19   the case law all over the map because the

20   statutes were different?

21              I mean, I understand the Manners

22   brief, which they rely upon, to really drill

23   down on the various statutes related to removal

24   and to have identified ones, for example, that

25   have a fixed term but allowed removal only for




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1    cause or had a fixed term and provided for

2    removal at the president's discretion or didn't

3    have a fixed cause -- a fixed term, et cetera,

4    et cetera.

5            There's, like, a series of

6    permutations, and in those different

7    circumstances, courts, which, asterisked, were

8    actually reviewing this, so that in the first

9    instance make -- makes me question your view

10   that courts couldn't review it, but setting

11   that aside, we have a bunch of cases that come

12   out different ways because the statutes are

13   different.

14           Professor Manning says -- Manners says

15   that when you drill down in this situation with

16   respect to fixed term and removability for

17   cause, as of 19- -- 1913, it was

18   well-established, everybody agreed that that

19   required at least notice and an opportunity to

20   be heard.

21           So what is your response to that?

22           We're looking at a particular statute

23   that does two things:   Fixes the term and has

24   for cause.   She says everybody said, got to

25   have a note -- notice and -- and a hearing.




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1               So why is the government saying

2    different right now?

3               GENERAL SAUER:   Respectfully to her,

4    that contention is plainly incorrect.         So, if

5    you go to our supplemental brief, page 9,

6    Footnote 4, in the accompanying text, we cite

7    Ulrich and then 13 more cases in that footnote

8    for the proposition that "for cause" does not

9    require notice and a hearing.

10              Her argument is gerrymandered --

11              JUSTICE JACKSON:   No, I'm talking

12   about -- I'm talking about the -- the

13   combination.

14              GENERAL SAUER:   Yes.   Yes, the

15   combination.    Right.

16              JUSTICE JACKSON:   The combination, for

17   cause --

18              GENERAL SAUER:   Of those four --

19              JUSTICE JACKSON:   -- and a -- and a

20   fixed term.    So, when I look at those cases,

21   I'm going to find that combination, and people

22   are all over the map, you say?

23              GENERAL SAUER:   By our count, in

24   seven --

25              JUSTICE JACKSON:   Okay.




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1            GENERAL SAUER:    -- of those 14 cases,

2    it's a combination.   There's also a fixed term.

3            So that argument just -- again, that

4    brief, you know, read the Tuttle article that

5    it relies so heavily on and you'll see this

6    argument.    They're nowhere near meeting the

7    burden of an old soil argument.

8            JUSTICE JACKSON:    All right.

9            GENERAL SAUER:    And that's what they

10   need to change the plain text of the statute.

11           JUSTICE JACKSON:    Well, let me talk

12   about the plain text of the statute in light of

13   its purposes.

14           You explored with Justice Kavanaugh,

15   and I appreciated this, that Congress put the

16   for-cause provision in there for a reason, and

17   you conceded that the reason was to try to

18   ensure the independence of the Federal Reserve,

19   that we were -- we, Congress, Congress had

20   decided that this particular agency, because

21   of the sensitive information and policy

22   determinations that it has to make, needs to

23   not have the pressure of having all of its

24   governors be fireable at the whim of the

25   president.    So in goes for-cause removal for




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1    that purpose.    And you agree.

2               So I guess what I'm trying to

3    understand is, how does reading the statute

4    to give the president broad discretion, which

5    you've said many times with respect to his

6    removability of these governors, how does that

7    further the aims of the statute?

8               GENERAL SAUER:   It directly furthers

9    the -- furthers the aim of protecting them from

10   removal for policy disagreement, which would be

11   the key protection that --

12              JUSTICE JACKSON:   No, but that -- but

13   you've -- but you've conceded that the aim is

14   actually broader.    The aim is to ensure that

15   this institution is not being pressured by the

16   executive branch, by the president, with

17   respect to its determinations, that people

18   can't just be fired because the president wants

19   them to.

20              And so what I'm now asking is, if we

21   read "for cause" to ultimately reduce to the

22   president can pick some fact that has nothing

23   to do with their actual tenure in office,

24   something that happened way before, and use

25   that and say that's cause and it's not




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1    reviewable and he doesn't have to show any

2    evidence and doesn't have to give the person

3    a hearing, basically, the president is just

4    making the determination that Congress

5    apparently didn't want him to have the power

6    to make because they put "for cause" in the

7    statute.

8               So how do you reconcile your vision

9    of presidential discretion with a statute that

10   was clearly designed to limit the president's

11   discretion in this regard?

12              GENERAL SAUER:   It was designed to

13   limit the president's discretion just as far

14   as the plain text of the statute goes.

15              The statute was a hard-fought

16   compromise between two influential and

17   insistent camps, as Justice Alito recently

18   wrote.   One of them thought there should be

19   complete presidential control of the Federal

20   Reserve.    The other thought it should

21   essentially be a private entity.

22              They met in the middle with a removal

23   standard that protects governors from removal

24   for a policy disagreement.

25              JUSTICE JACKSON:   But it only




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1    protects -- it only protects them insofar as

2    the president's determination about cause is

3    reviewable and based on actual evidence that

4    has been established.    It doesn't protect them

5    if the president can just make it up.

6            GENERAL SAUER:    It also provides a

7    legislative determination that governors could

8    be and perhaps should be removed if they engage

9    in financial improprieties that undercut the

10   Federal Reserve's credibility in the eyes of

11   ordinary Americans.

12           JUSTICE JACKSON:    All right.    One more

13   question just about this idea of the district

14   court's power.

15           You've talked a lot about mandamus

16   being a remedy, but as I -- I read the cases

17   and the law, mandamus was the remedy for courts

18   of law that were being asked to reinstate

19   removed officers, and this was back at a time

20   in which courts of law and courts of equity

21   were separate.

22           We now have a fused system.      Courts of

23   equity could always be asked to step in and

24   prevent the removal of this person.      To the

25   extent the person was claiming that they were




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1    not removable, say, because the statute says

2    they could only be removed for cause, a court

3    of equity could be invited through this claim

4    to come in and pause the circumstances, not

5    allow this person to be removed until the

6    courts of law had actually litigated the claim

7    of removability.

8            I think that's the world we're in.

9    This was the very first question that Justice

10   Sotomayor asked you.   And so can you just

11   explain why you're insisting that mandamus is

12   the only thing available to the district court

13   in this situation when this is an equitable

14   decision in the interim in the way that I

15   discussed?

16           GENERAL SAUER:   It is -- the

17   preliminary injunction is an equitable

18   determination, and it's one that the district

19   court plainly, under Sawyer, plainly lacked

20   jurisdiction to -- to enter.

21           And, again, I also -- in addition to

22   the holding of this Court in Sawyer that a

23   temporary restraining order purporting to

24   restore a public officer --

25           JUSTICE JACKSON:   Right.   I'm -- I --




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1    I -- I -- I --

2            GENERAL SAUER:     -- with serious

3    equitable powers --

4            JUSTICE JACKSON:     My question posits

5    that we're not talking about restoration.

6    We're talking about Ms. Cook's application to

7    the court before she was terminated to prevent

8    being terminated because her claim is that I'm

9    not removable.

10           That's an equitable determination.

11   It's being made in the interim.    She's not yet

12   been removed because the court prevented that

13   with its preliminary injunction.    Courts of

14   equity did that all the time.    So I don't

15   understand why you're saying it's inappropriate

16   for that to be done now.

17           GENERAL SAUER:     Sawyer, in addition to

18   that, as I alluded to before, there's this

19   strong tradition of recognizing the president's

20   authority to engage in suspensory removals

21   pending the -- the final determination.      And

22   that alone would -- is enough to point out that

23   there's no -- no power to do the preliminary

24   injunction that was entered here.

25           JUSTICE JACKSON:     Thank you.




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1               CHIEF JUSTICE ROBERTS:   Thank you,

2    General.

3               Mr. Clement.

4                 ORAL ARGUMENT OF PAUL D. CLEMENT

5                    ON BEHALF OF THE RESPONDENT

6               MR. CLEMENT:   Mr. Chief Justice, and

7    may it please the Court:

8               The Federal Reserve is a uniquely

9    structured entity with a distinct historical

10   tradition.    Part of that historical tradition

11   is an unbroken history going back to its

12   founding in 1913 in which no president, from

13   Woodrow Wilson to Joseph Biden, has ever even

14   tried to remove a governor for cause, despite

15   the ever-present temptation for lower rates and

16   easier money.    Even in this case, the president

17   recognizes the unique status of the Fed by

18   neither arguing that the removal restriction is

19   unconstitutional, nor asserting the ability to

20   remove a Fed governor without cause.

21              But despite that recognition, the sum

22   total of the Solicitor General's arguments

23   would reduce the removal restriction in this

24   unique institution to something that could only

25   be recognized as at-will employment.     No




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1    procedural due process before removal.     No

2    judicial review after removal.     No preliminary

3    injunction to preserve the status quo.     And a

4    conception of cause so capacious that apparent

5    misconduct or gross negligence suffices.

6               That makes no sense.   There's no

7    rational reason to go through all the trouble

8    of creating this unique quasi-private entity

9    that is exempt from everything from the

10   appropriations process to the civil service

11   laws just to give it a removal restriction that

12   is as toothless as the president imagines.

13              But, if that removal restriction has

14   real substantive and procedural bite, then this

15   emergency application should be denied.        There

16   is simply no reason to abandon over a hundred

17   years of central bank independence on an

18   emergency application on a preliminary record.

19              I welcome the Court's questions.

20              JUSTICE THOMAS:   But, if there was

21   such concern for independence, could the

22   removal statute have been written as others

23   have been written to require a hearing and

24   review?

25              MR. CLEMENT:   So it could have been,




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1    Justice Thomas.   You know, in the realm of

2    interpreting statutes, could have, should have,

3    would have, right?   But I think that you have

4    to give faithful interpretation to what

5    Congress actually did.

6            And I think, if you understand the

7    original public meaning of "for cause" in

8    either 1913 or 1935, I do not think it was as

9    capacious as my friend suggests.   I think it

10   probably meant INM plus ineligibility, and in

11   the context of the Fed in particular, it

12   probably picked up Section 244, which prevents

13   a federal governor from also serving as a

14   director and an officer of a bank.   So, if

15   they're a Fed governor that insisted on being a

16   director of Chase Manhattan, I think that would

17   be removal for cause.

18           And then, on the context of the

19   hearing, and I think Justice Kagan already

20   alluded to this, but there are all these

21   statutes about INM that don't mention a

22   hearing, and there are many statutes that talk

23   about cause and don't mention a hearing.

24           Now it's true that the NLRA, which was

25   passed a month before, did specify a hearing.




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1    But I think it would be a mistaken statutory

2    interpretation to make that one express

3    reference to a hearing sort of disable all the

4    other old soil arguments with respect to all

5    the other institutions where I think there's a

6    very strong old soil argument that, whether

7    it's INM or for cause, that means that you get

8    notice and an opportunity --

9               JUSTICE THOMAS:    With that said --

10   with that said, what would the hearing look

11   like and what would the review look like?

12              MR. CLEMENT:   So I agree with

13   General Sauer that the president would have a

14   fair amount of discretion in how he or she

15   wanted to fashion that hearing.      I mean, one

16   example we have historically is President Taft,

17   and he sort of gave the removed officials the

18   full Taft, and it was notice, opportunity for a

19   hearing before an impartial tribunal that, you

20   know, serendipitously included future-Justice

21   Frankfurter, and then he -- I mean, so that's

22   kind of the maximum that the president could

23   give.    But we're not suggesting that you need

24   to give the full Taft.       The president would

25   have a lot of flexibility on that.




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1               I think -- you asked what the review

2    would look like, and I think that actually sort

3    of gets to the heart of where the president's

4    incentives would be.    I think the more process

5    that the president provides, the less room

6    there's going to be for judicial review and

7    judicial second-guessing of factual

8    determinations.    So, if a president wants to

9    give the full Taft, I think the scope for

10   review of factual determinations by that kind

11   of tribunal would be very narrow, but I do

12   think there would be legal review.

13              CHIEF JUSTICE ROBERTS:   I'm not sure I

14   understand exactly what you want a hearing for.

15   If your argument is inadvertence, it doesn't

16   seem to me that there's much you can say

17   factually other than that.    You can't say,

18   well, this is why we did it and this is okay

19   and all that.    It's just an inadvertent

20   mistake.

21              Now there obviously are a lot of legal

22   questions to be addressed, but, again, those

23   are questions for the court, a court, and not

24   the basis for a factual hearing.     You don't

25   have anything -- you have one sentence to say:




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1    It was inadvertent mistake.

2               MR. CLEMENT:   Well, I mean, Mr. Chief

3    Justice, I think, in a case where the

4    president's going to say that it's -- an

5    inadvertent mistake is enough and the

6    potentially removed official's going to come in

7    and say it was an inadvertent mistake, then,

8    you're right, I think the hearing's not going

9    to matter that much.

10              Now, in the -- in -- in the real

11   world, where you have no precedent for this

12   kind of removal, I think, if there were notice

13   and opportunity for a hearing, there might be

14   an opportunity to not just present the factual

15   evidence but to also make the case, and given

16   these particular facts about this particular

17   inadvertent mistake, that isn't a basis for

18   removal.

19              CHIEF JUSTICE ROBERTS:   Well, I think

20   you're talking about the legal arguments,

21   though, the arguments we're hearing today.

22              MR. CLEMENT:   I -- I think that's

23   right, Mr. Chief Justice, and I do think those

24   could be made in a preliminary way in the

25   process that was provided by the executive




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1    branch.

2               But, as I alluded to, I do think, on

3    the substantive question of what's for cause,

4    there needs to be judicial review.     And I think

5    there needs to be judicial review of that

6    question for all the reasons that were alluded

7    to in the various colloquies because, if

8    there's no judicial review, then this is all

9    kind of a joke.    I mean, we can -- we can sit

10   here and posit that, well, this would be for

11   cause and that would be for cause, but none of

12   it would matter because there would be no

13   judicial review.

14              JUSTICE KAVANAUGH:   Can you --

15              JUSTICE ALITO:   Well, on the question

16   of what is for cause, what the district court

17   held was that it must relate solely to

18   in-office conduct.    And you defend that with

19   one caveat that if the office-holder is

20   indicted later for -- indicted while in office

21   for pre-office conduct, then that might be

22   cause for removal because a person under

23   indicted -- indictment wouldn't be able to

24   devote full attention to the job.

25              But, other than that, you defend the




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1    district court's holding.    Is that correct?

2              MR. CLEMENT:   We -- we do defend the

3    district court's holding on that.    And I would

4    understand that is the rule for all the

5    statutes that have INM.

6              JUSTICE ALITO:   There's nothing

7    when -- under a for-cause removal standard,

8    there is no pre-office conduct that could

9    constitute cause?

10             MR. CLEMENT:   That is my front-line

11   response.   I happen to have a backup argument,

12   which is, if you pick up the common law, then

13   you would pick up the --

14             JUSTICE ALITO:   Well, let's -- let's

15   take your front-line -- front-line argument

16   first and see how far you're willing to go.

17             Suppose that the office-holder was

18   permitted to resign from a previous job under a

19   nondisclosure agreement based on a long and

20   egregious pattern of sexual misconduct.

21             That would not be for cause -- that

22   would not be cause for removal?

23             MR. CLEMENT:   So what I would say,

24   Justice Alito, is I don't think that would be

25   INM.   And so, if I'm going to stick to my




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1    front-line position, then that would not be for

2    cause.   It would certainly be a basis for

3    impeachment.

4              And I think, in understanding why

5    we've had INM for at least 90 years,

6    probably --

7              JUSTICE ALITO:   All right.   I

8    understand your position.    How about if, after

9    the person assumes office, videos are disclosed

10   in which the office-holder is expressing deep

11   admiration for Hitler or for the Klan?

12             MR. CLEMENT:   I can only imagine --

13             JUSTICE ALITO:   That must be --

14             MR. CLEMENT:   -- where these hypos are

15   going to eventually go, Your Honor, but --

16             JUSTICE ALITO:   Well, yeah, because

17   your position leads to --

18             MR. CLEMENT:   I'm going to stick with

19   my position.

20             JUSTICE ALITO:   Well, you're -- all

21   right.

22             MR. CLEMENT:   Of course, I'm going to

23   stick with my position and I'm going to say

24   that's an official that would be impeached in a

25   heartbeat, and the fact that they would be




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1    impeached in a heartbeat is going to cause them

2    to resign in half a heartbeat.

3              And this has not proven a problem.     I

4    mean, for better or for worse, whatever you

5    think of Humphrey's Executor, we've had 90

6    years of --

7              JUSTICE GORSUCH:   Mr. Clement, what's

8    your backup argument?

9              (Laughter.)

10             MR. CLEMENT:   My -- my backup -- my

11   backup argument is the common law standard,

12   Justice Sotomayor alluded to it, which would be

13   that it is -- that there's a removal basis for

14   an infamous crime of the kind that is disabling

15   for public office and, you know -- and at

16   common law, it would -- it also required a

17   conviction.   So it's -- it's an exception.      It

18   helps me with a couple of these hypotheticals.

19             JUSTICE ALITO:   No, it doesn't help

20   you.

21             MR. CLEMENT:   But it's not going to

22   help me with the Justice Alito --

23             JUSTICE ALITO:   It doesn't help you.

24   It doesn't.

25             MR. CLEMENT:   You know what I'm




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1    saying?    There's no conviction for the Hitler

2    video.

3               JUSTICE GORSUCH:    Do you have a backup

4    to the backup?

5               MR. CLEMENT:   Impeachment.   It's the

6    ultimate backup here.       This is not a situation

7    where you're being asked -- you're -- you know,

8    have to tie yourself to the --

9               JUSTICE KAVANAUGH:    We got an argument

10   in the --

11              JUSTICE KAGAN:    So why --

12              JUSTICE KAVANAUGH:    -- past that

13   impeachment doesn't cover private conduct.         You

14   obviously disagree with that then?

15              MR. CLEMENT:   Well, I certainly --

16   see, but this actually kind of makes the point

17   about judicial review, right?       I mean --

18              JUSTICE KAVANAUGH:    I'm not saying I

19   agree with that, by the way.       It's been -- it's

20   been argued.

21              MR. CLEMENT:   Right.   But -- but --

22   but -- but what I -- what I absolutely agree

23   with is the Walter Nixon case says that there's

24   no judicial review of the impeachment

25   determination in the end.




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1               So whatever the House and the Senate

2    ultimately determine, I mean, they can make

3    constitutional law too and they can determine

4    whether private conduct is or is not out.       And

5    if they say -- and -- and with these hypos, I

6    mean, you know, and we can -- we can go down

7    the road of the hypos and they'll get worse.

8    I -- I am -- I am confident --

9               JUSTICE KAVANAUGH:   The backup to the

10   backup, to use Justice Gorsuch's term, would be

11   the infamous, but you don't need a conviction.

12              MR. CLEMENT:   Right.   No, absolutely.

13   And, of course --

14              JUSTICE KAVANAUGH:   And that seems to

15   solve your answer -- a lot of the difficult

16   hypos, correct?

17              MR. CLEMENT:   Correct.   But the reason

18   I want to spend at least a moment answering

19   some of the hard hypos is not because I'm a

20   masochist.    It's just because those are -- have

21   got to be the answers under INM.

22              JUSTICE KAVANAUGH:   You -- your answer

23   is that those are funneled to the impeachment

24   process?

25              MR. CLEMENT:   That's right.   And




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1    that's -- that's the way --

2               JUSTICE KAGAN:   So why --

3               MR. CLEMENT:   -- INM has worked for

4    150 years.    And I think it would continue to

5    work.    It hasn't proven a problem in practice.

6    But I'm not resisting very hard the backup to

7    the backup on that because I don't think we're

8    close.

9               And, of course, look, all of these are

10   hard questions, which is all of the reasons why

11   it's kind of crazy to decide this on an

12   emergency application.

13              JUSTICE ALITO:   Yes.   Well, there --

14              JUSTICE KAGAN:   Why is it crazy?

15              JUSTICE ALITO:   -- are a million hard

16   questions in this case.     And it is an emergency

17   application and very difficult questions,

18   either no precedent or very conflicting

19   precedent -- or a very uncertain body of

20   precedent, but there are two -- two things were

21   decided by the lower courts.

22              One, that what I just explored, the

23   district court said it's got to be in-office

24   conduct, nothing that happened before a person

25   took office counts.




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1              And then the D.C. Circuit said that

2    your client had a property interest in her --

3    in her office and, therefore, a due process

4    right.

5              Is that right?   She had a property

6    interest in being a -- a -- a governor on the

7    Federal Reserve Board?

8              MR. CLEMENT:   So I think there's a

9    perfectly reasonable argument for that, but I

10   also think that there's a better argument

11   that's a constitutional avoidance argument.

12             And what the D.C. Circuit did in a per

13   curium opinion is sort of an example of what

14   happens when you're trying to rush all of this,

15   which is you jump right to a constitutional

16   holding when there may be a perfectly good

17   constitutional avoidance statutory holding

18   there.

19             And I think we've now had a couple of

20   months and a bunch of amicus briefs to

21   ventilate some of these things, and I think you

22   get -- with that ventilation, you get an

23   understanding that there is a very good

24   statutory argument --

25             JUSTICE GORSUCH:   So -- so --




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1               MR. CLEMENT:   -- and I do want to talk

2    about us treating Shurtleff --

3               JUSTICE GORSUCH:   -- why wouldn't

4    that --

5               MR. CLEMENT:   I'm sorry.

6               JUSTICE GORSUCH:   Why wouldn't that --

7    why wouldn't that be a basis for sending it

8    back to consider these arguments in the first

9    instance?    If -- if -- if you aren't prepared

10   to defend the due process argument, then

11   perhaps your front-line argument on -- that

12   things that happened before employment are

13   categorically and always off the table.

14              If those two decisions, which, to be

15   fair, were, of course, issued under -- under a

16   time constraint, might have some flaws, why

17   shouldn't it go back to reconsider it?

18   You've -- you've advanced a lot of new

19   arguments here.    So have your friends on the

20   other side.

21              MR. CLEMENT:   So it should go back.

22   It should just not go back with an emergency

23   stay being granted, which is extraordinary

24   relief that depends on my friends on the other

25   side showing extraordinary burden of




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1    irreparable harm and showing that they have a

2    likelihood of success on the merits.

3              And I think likelihood of success on

4    the merits in this context doesn't mean just a

5    likelihood of showing that the two grounds that

6    were seized on in the quick briefing below are

7    wrong but that they're actually right.

8              And I think the briefing here has done

9    two things.   I think it showed that we're

10   right.   I -- I'm not abandoning my front-line

11   arguments, but I love my backup arguments.      I

12   think they are very strong.

13             And I think it shows the sort of --

14   you know, the -- the problems that happen when

15   you try to decide some of the most important

16   issues of constitutional law in this kind of

17   rushed way.

18             JUSTICE GORSUCH:   Can I ask you about

19   the mandamus question?    Why isn't mandamus the

20   appropriate avenue here?

21             MR. CLEMENT:   It is an appropriate

22   avenue at the end of the case.    Even at the end

23   of the case, though, I think -- and this is

24   consistent with Professor -- what Professor

25   Bryce says in his article.    Even at the end of




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1    the case, I don't think you have to leap to

2    mandamus.   I think you can have a declaratory

3    judgment first.

4            JUSTICE GORSUCH:   Well, let's put the

5    declaratory judgment issue aside because we can

6    talk about mandamus for a second.

7            Assuming there is such thing as a

8    preliminary injunctive relief for mandamus,

9    which I'm going to ask you if that's a thing,

10   first of all, and, second, if it were, wouldn't

11   the standard you'd have to show likelihood of

12   success be the likelihood of success under the

13   mandamus standard?

14           MR. CLEMENT:   So a couple of things.

15   I mean, I -- I don't like hearing preliminary

16   mandamus any more than Judge Friendly did.

17           JUSTICE GORSUCH:   No.

18           MR. CLEMENT:   I don't think it's the

19   right way to think about it.     I think it's

20   preliminary relief to preserve the status quo

21   or, if you want to be more specific,

22   preliminary relief to preserve a de facto

23   officer in their office while the case

24   proceeds.   And that is a relief --

25           JUSTICE GORSUCH:   Why isn't that




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1    preliminary injunction or mandamus?       I know of

2    those two buckets.    I'm not sure I'm familiar

3    with the third one you're describing.

4            MR. CLEMENT:     What I'm describing

5    is -- is a preliminary injunction.

6            JUSTICE GORSUCH:    Okay.   So it is --

7            MR. CLEMENT:     I'm just saying it's not

8    a preliminary mandamus.    It's a prelim --

9            JUSTICE GORSUCH:    Well, wouldn't it

10   have to be, though?    If -- if your cause of

11   action were mandamus, and let's just suppose

12   that's what it is, it would be preliminary

13   injunctive relief because you have the

14   likelihood of succeeding on -- under the

15   mandamus standard I would have thought.

16           MR. CLEMENT:     Well, perhaps.    I mean,

17   two things about that.    One is I'm not sure in

18   this kind of mandamus posture, I don't think I

19   agree with General Sauer that the standard is

20   the standard you would have in, like, a Cheney

21   situation.

22           I do think this kind of original

23   mandamus as the remedy in this particular

24   situation, I would resist the idea that that's

25   sort of the standard more appellate mandamus




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1    standard.

2              That's a debate -- even with all the

3    briefing we've had, we haven't had a good

4    chance to really duke it out on that.     But I

5    would say that's part of the reason I resisted

6    the idea that you have to go to mandamus,

7    because I do think you would have declaratory

8    judgment.     I do think declaratory judgment --

9              JUSTICE GORSUCH:   I asked you -- I

10   asked you to put that aside for the moment.

11             MR. CLEMENT:   No, no, I -- and I tried

12   to as long as I could.

13             (Laughter.)

14             JUSTICE GORSUCH:   All right.

15             MR. CLEMENT:   But -- but then, to

16   answer your --

17             JUSTICE GORSUCH:   Then -- then I give

18   up.   Okay.

19             MR. CLEMENT:   Then, to answer your

20   question, I really had to get to declaratory

21   judgment.

22             I would like to say this is an issue

23   the -- the D.C. Circuit has thought a lot

24   about.   And there's a particular case worth

25   reading, the Swan against Clinton case.     And




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1    that's a case where they kind of wrestled with

2    this question about can you -- you know, would

3    you have mandamus against the president.    At

4    the end of the day, can you direct the

5    president, and there's a great concurring

6    opinion by Judge Silberman where he basically

7    says, look, the judiciary is creative and

8    clever enough to figure out a way to fashion

9    injunctive relief against the lower federal

10   officials and that solves the problem about

11   having the relief run against the president.

12           And the reason that the D.C. Circuit

13   has wrestled with that in a couple of contexts,

14   and I think the Chief Justice alluded to this,

15   if they don't really write about that, then

16   you'd have to wrestle with this at the

17   beginning of the case as to whether there's any

18   redressability at the end of the case.

19           And in the Swan case and even in the

20   Severino case, the D.C. Circuit has said

21   there's not a redressability problem.    We can

22   figure out a way to direct the relief at the

23   lower government officials and that will be

24   sufficient unto the day.

25           JUSTICE JACKSON:   And that happens at




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1    the end of the case, right, after the whole

2    thing has been litigated and some court,

3    perhaps even this Court, decides the

4    removability question.     The president does not,

5    we would say, have the right to remove her, and

6    then we go to remedy, and the question is, is

7    there a mandamus or not.

8               The reason why I thought mandamus

9    wasn't on the table right now is because we're

10   not there.    We're -- we're in the middle of the

11   case.    We haven't -- no one has made a

12   definitive determination about the president's

13   right to remove her.

14              The question now is just in the

15   interim, while that case is -- while -- while

16   that issue is being litigated, what happens?

17   And that's about the equities, that's about

18   whether it's going to be more harmful to leave

19   her in the position than not.     That's what I

20   thought this motion was about.

21              MR. CLEMENT:   I mean, I -- I think

22   that's right.    But it's specifically about

23   whether you can get some sort of preliminary

24   injunctive relief to preserve the status quo

25   and keep the de facto officer in place.




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1               And I do take Justice Gorsuch's

2    question, which is, at the end of the rainbow,

3    all there is is mandamus and you can't have

4    mandamus against the president, then, at this

5    point, you'd say what's your likelihood of

6    success at the merits and you would say there's

7    no likelihood of success on the merits.        But I

8    think, as I alluded to, even before that, you'd

9    say is there any redressability here.

10              JUSTICE JACKSON:   But, wait, I'm

11   sorry --

12              JUSTICE GORSUCH:   But, just to be

13   clear, that wasn't --

14              JUSTICE JACKSON:   -- why would that be

15   a merits issue?

16              JUSTICE GORSUCH:   I'm sorry.

17              JUSTICE JACKSON:   You'd have no

18   likelihood of success on the merits?       You'd

19   just have no remedy.      You would win on the

20   merits.    The merits are that -- that -- that

21   the president wasn't supposed to remove you.

22   But you would lose because there's -- lose

23   ultimately in terms of not having a remedy,

24   right?

25              MR. CLEMENT:   Well, I mean, you could




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1    draw the distinction that way.      I think, if you

2    have no remedy at the end, you probably have

3    the redressability problem at the front end,

4    which is why the D.C. Circuit has this --

5    addressed this on a number of bases.

6               These are not emergency application

7    decisions.    These are decisions in the D.C.

8    Circuit.    They obviously don't bind this Court.

9               But they are the considered judge --

10   judgment of a court that's dealt with, you

11   know, like, about, with all the removals there

12   have been, and there haven't been a lot of

13   them, but with respect to other officers.       So,

14   you know, I think that's --

15              JUSTICE KAGAN:   Mr. Clement --

16              MR. CLEMENT:   -- pretty good

17   authority.

18              JUSTICE KAGAN:   -- what would judicial

19   review in this context look like?      I mean, this

20   is not a question about what the standard is.

21   It's more a question about is there a kind of

22   deference to give to the president?        How does

23   that deference operate?     Whatever the standard

24   is.

25              MR. CLEMENT:   Sure.   So I would divide




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1    between sort of factual questions and legal

2    questions.   As to the factual questions, I

3    would say that there's going to be a degree of

4    deference, and the degree of deference depends

5    on the degree of process that's provided.

6            So, if the president wants to go full

7    Taft, I don't think the courts are going to be

8    in a position to second-guess the factual

9    determinations.   If the president wants to do

10   something more informal, that's -- he's

11   entitled to do that, but then I would think

12   there'd be more of a scope for, you know,

13   having more hearing, more process in the

14   judicial forum.

15           On the question, the legal question, I

16   would say, in a post-Loper world, there's no

17   deference to the legal questions, and the

18   courts are going to have to decide ultimately

19   what are the boundaries, the metes and bounds

20   of for cause.

21           And the only other thing I would add

22   is I think that you're going to want to erect

23   meaningful standards of cause because, you

24   know, there's kind of two options here.    You

25   can either have judicial review that spends a




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1    lot of time looking into pretext of the

2    president, and that just doesn't seem like a

3    good thing for the courts, for the president,

4    or anybody, or you could erect relatively

5    demanding standards of cause, and that's going

6    to, I think, obviate the need for that kind of

7    pretext inquiry.

8            JUSTICE KAGAN:   Yeah.   So -- so

9    General Sauer's version of cause, which is it's

10   not policy, it's something other than policy,

11   why isn't that the backup to the backup of --

12   to the backup?

13           MR. CLEMENT:   Well, because it would

14   kind of destroy the whole point of having an

15   independent central bank in the Fed.    And it

16   just seems to me like at some point -- I mean,

17   we're all here on the assumption for this case

18   that the Fed is a uniquely structured

19   institution with a distinct historical

20   tradition.   And so, if that's true and then you

21   tick through the statute and you see all the

22   things that Congress did, I mean, including,

23   you know, Congress wasn't just trying to take

24   the Fed and keep it from sort of being unduly

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1    rates right before an election.    It did the

2    same thing to itself by limiting the power of

3    the purse over this institution.

4            And then you go through and, you know,

5    just every provision of the statute is trying

6    to treat this unique institution differently.

7    And then, at the end, you have for cause,

8    which, I mean, could mean what General Sauer

9    says, but if it means what General Sauer says,

10   then the whole enterprise was in a lot of

11   trouble for nothing.

12           JUSTICE KAVANAUGH:   On the -- on the

13   future judicial review and what that looks

14   like, would the witnesses testify in court, or

15   is it done on the record established by the

16   executive branch, or does that maybe depend?

17           MR. CLEMENT:    I would say it depends

18   on what kind of process was provided by the

19   executive.   And, look, I -- I -- I agree with

20   General Sauer.   This Court's not going to

21   dictate, like, you know, here's Robert's Rules,

22   you know, have at it.   But I think this Court

23   can do something useful, which is essentially

24   to create an incentive for the executive to

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1    protective, a little bit closer to Taft than

2    something incredibly informal by at least --

3               JUSTICE ALITO:   I mean, that -- that

4    sliding scale is extraordinarily unhelpful.

5    What is the minimum that the executive, in your

6    view, has to provide, the minimum type of

7    hearing that you think is required by this

8    statute?

9               MR. CLEMENT:   So the minimum hearing I

10   think would have three components.     One is

11   notice, and that's really not much of an issue

12   here.    I agree with that.   The second is an

13   opportunity to provide evidence to the

14   decisionmaker, and we don't think that happened

15   here.    And then the third thing is some effort

16   to keep the final decisionmaker from prejudging

17   the issue.

18              And part of the problem you have in

19   this particular case is -- is that I think the

20   president was proceeding on the understanding

21   of the statute that's faithfully represented

22   here by the Solicitor General, which is he

23   wasn't acting like a removing authority that

24   was subject to any due process because, if I

25   think he were -- if he were sort of subject to




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1    that, he wouldn't have said in his opening

2    tweet, you must resign, and he wouldn't have

3    said two days later, resign or be fired.

4               I mean --

5               JUSTICE ALITO:    So that -- does that

6    mean it has to be a body of disinterested

7    decisionmakers?

8               MR. CLEMENT:   No.

9               JUSTICE ALITO:    People who are not

10   part of the executive branch and can exercise

11   independent judgment that way?       No?

12              MR. CLEMENT:   No.

13              JUSTICE ALITO:    Then what does it

14   require?

15              MR. CLEMENT:   It -- it -- it -- it

16   requires just what I said, notice, an

17   opportunity to provide evidence, and a

18   decisionmaker who hasn't prejudged the issue.

19   That decisionmaker can be the president.         I

20   mean, I'm not sure I'd, you know, necessarily

21   recommend it as my choice A, but what --

22              JUSTICE GORSUCH:     Well, but how can it

23   not be the president?       The statute authorizes

24   the president to make the removal decision.

25   How could it be anybody else?




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1              MR. CLEMENT:   Well, look, I mean, you

2    know, if you believe in the unitary executive

3    theory, then anybody that makes the removal

4    decision is acting on the president's power.       I

5    think it would -- it would work -- you know, I

6    think the way it worked for Taft is the

7    tribunal made a recommendation and then Taft

8    executed it.

9              JUSTICE GORSUCH:   Right, the

10   president --

11             MR. CLEMENT:   So it was the

12   president --

13             JUSTICE GORSUCH:   Yeah.

14             MR. CLEMENT:   -- making the decision.

15             JUSTICE GORSUCH:   The president has to

16   make the decision, right, or delegate it to

17   somebody who he wishes to make that decision?

18             MR. CLEMENT:   Yes.

19             JUSTICE GORSUCH:   Who's reportable to

20   him?

21             MR. CLEMENT:   Yes.   Yes.

22             JUSTICE GORSUCH:   Okay.

23             MR. CLEMENT:   At will.

24             JUSTICE GORSUCH:   At will, yeah.

25             MR. CLEMENT:   Right, absolutely.




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1               JUSTICE GORSUCH:    Okay.

2               MR. CLEMENT:   I mean, so -- so -- and

3    the president can be the final decisionmaker,

4    but if he's going to be the final decisionmaker

5    and there's a due process right, and I mean --

6    I mean that's statutory or constitutional,

7    then, you know, he needs to be a little bit

8    careful and say these are the allegations.         He

9    can't start by prejudging the issue by saying

10   resign.

11              JUSTICE BARRETT:    Mr. Clement, your

12   understanding of for cause, you know, we've --

13   you went through hypotheticals with Justice

14   Alito about how it doesn't cover pre-office

15   conduct.

16              What about conduct in office that

17   doesn't relate to the discharge of the office?

18   Like, what if you take some of Justice Alito's

19   examples, but it's, like, Nazi videos while the

20   governor is in office or, you know, things that

21   would be misdemeanors rather than infamous

22   crimes, like shoplifting, you know, stealing

23   things, domestic abuse?       Would those things be

24   cause for firing or that's -- they don't really

25   seem like impeachable offenses necessarily.




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1            MR. CLEMENT:   So I don't think those

2    would be removable offenses under INM.

3            JUSTICE BARRETT:   Okay.

4            MR. CLEMENT:   And so I don't think

5    they would removable offenses under for cause

6    properly construed.

7            JUSTICE BARRETT:   So there's nothing

8    that the president can do to get rid of someone

9    who does those kinds of things while in office?

10           MR. CLEMENT:   So, I mean, you know,

11   some of the things we're talking about, you

12   know, seem like better grounds for, like, an

13   intervention than for removal.     And so --

14           JUSTICE BARRETT:   Well, I mean, I

15   could come up with others, but --

16           MR. CLEMENT:   Of -- I mean,

17   absolutely.

18           JUSTICE BARRETT:   Okay.

19           MR. CLEMENT:   Absolutely.    I'm --

20           JUSTICE KAVANAUGH:   But people --

21   well, sorry, keep going.

22           MR. CLEMENT:   You know, I'm -- I'm

23   going to fall back on my answer, which is

24   that's my understanding, and I think it's

25   actually everybody's understanding, of how INM




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1    works.   I mean --

2              JUSTICE BARRETT:    But that doesn't --

3    it doesn't say INM.      And so, I mean, I -- I --

4    I appreciate your argument that INM and for

5    cause are one and the same, but you also kind

6    of pull in in your fallback some sort of like

7    gerrymandered things like infamous crimes, but

8    you don't have to have a conviction.      I mean --

9    so it doesn't say INM.

10             MR. CLEMENT:    So a couple of things.

11   One is, you know, I'd -- I'd resist -- I mean,

12   you know, gerrymandering is generally not a

13   compliment.   So I -- I would sort of say that

14   what we do is we bring in the common law, and

15   that's what we do.    And I really didn't try to

16   gerrymander it beyond that.

17             But -- and -- and -- but let me make

18   the argument, which I really --

19             JUSTICE BARRETT:    Could I just ask one

20   clarifying question?      I thought the common law,

21   though, required conviction.

22             MR. CLEMENT:    It -- it did, and -- and

23   that would be our -- our sort of front-line

24   backup position, if you will.

25             JUSTICE BARRETT:    Front-line backup?




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1              MR. CLEMENT:   I mean, but -- but

2    the -- but the happy thing for me, I think, is,

3    at this stage of the case, we win under all

4    these variations.   And, ultimately, you know,

5    some court, and it may be this Court, is going

6    to ultimately say these are the metes and

7    bounds of for cause.

8              Now I think I have some pretty good

9    arguments that it really is just INM plus

10   ineligibility as kind of informed by Section

11   244.   And let me just give you, like, my best

12   shot at it, which is this is the very unusual

13   situation where, you know, we -- we know that

14   Congress was literally waiting for this Court's

15   Humphrey's Executor decision.    And then it gets

16   Humphrey's Executor's decision, and this Court

17   in Humphrey's Executor at least three times

18   uses "for cause" and "INM" interchangeably.

19   And then the senators themselves in the

20   debate -- now you got to look at the debate,

21   but I think even Justice Scalia looks at

22   debates for original public meaning -- the

23   senators in the debate used the terms

24   absolutely interchangeably.

25             And so you have two of the three




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1    branches of government, original public meaning

2    saying for cause, different words, but what it

3    means is INM.   But I don't -- I do think it --

4    it must -- you know, you got to make sense of

5    Section 244 of the statute, which does provide

6    a very specific eligibility requirement.

7              And as I said before, I think, if some

8    Fed governor was insisting that they also

9    wanted to be a director at Chase National, they

10   could be removed for cause for that.

11             JUSTICE BARRETT:   Okay.

12             JUSTICE KAGAN:   Do you think that

13   there's a way at this posture of dealing with

14   this case so that we don't have to confront the

15   question of exactly what the for-cause standard

16   means?

17             MR. CLEMENT:   Is there a way to deal

18   with it at this stage without having to

19   ultimately say that?     I mean, sure, there'd be

20   a lot of different ways to do that.    You could

21   say that for cause -- I mean, you know, one way

22   to come at it would be to say, at a minimum,

23   "for cause" doesn't mean apparent misconduct or

24   gross negligence, and I think that would be

25   sufficient to decide the case at least at this




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1    juncture.

2               And I think you could say something

3    more.    I mean, you know, obviously, if you took

4    my position and said it means INM plus

5    ineligibility as informed by Section 244, I

6    don't -- I think we'd be done here because I

7    don't think there's an argument at least that

8    I've heard at this juncture that the conduct

9    that's at issue here is either INM or

10   ineligibility.

11              JUSTICE JACKSON:    Couldn't we also

12   resolve it by not even going to the likelihood

13   of success on the merits element?       I mean, you

14   have -- the president would have to have all of

15   them to get a stay.       And we could do it on

16   harm, right?

17              MR. CLEMENT:    Sure.   I mean, you know,

18   look, it's an emergency application.       You could

19   deny it without opinion.      I mean, that would be

20   a little strange at this juncture.

21              (Laughter.)

22              MR. CLEMENT:    But there -- you know,

23   it is -- it is an extraordinary application

24   made on a preliminary record, and so, you know,

25   you sort of have a lot of optionality at this




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1    point.

2              But -- but I will say this.     I mean,

3    you know, I do think the briefing in this -- in

4    this -- in this Court, which was, you know,

5    sort of unusual, you had the application

6    briefing, then you had amici, then you had this

7    supplemental briefing, I think it's been

8    incredibly helpful in excavating some of these

9    difficult questions.

10             I mean, you know, I've looked at

11   almost all of these common law cases.      I have

12   a different view than General Suter on --

13   Sauer, sorry -- on -- on some of these

14   questions.

15             And, you know, in particular, I think

16   it's very important, and, you know, I want to

17   get this out, that if you look at Shurtleff,

18   one of the things in Shurtleff -- there's a --

19   there's a -- there's a line there that says

20   that where -- where Justice Peckham is invoking

21   the common law, and he says that as long as

22   there's certain causes, statutory restriction

23   for certain causes, that's the term he uses,

24   then there's notice and a hearing.      He cites

25   seven common law cases.




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1               Now, if you look at those common law

2    cases, three of the seven just say "for cause"

3    and two of them say "good behavior," which is

4    even less, and then two of them have a more

5    specific cause.

6               So that's, to me, the best

7    contemporaneous evidence that we're actually

8    right about the issue, that if it just says

9    "for cause" and it doesn't say for a particular

10   kind of cause, you get notice and an

11   opportunity for hearing.

12              But that's the kind of thing you can

13   excavate on full briefing on the merits that I

14   don't think you can in a -- in an application.

15              CHIEF JUSTICE ROBERTS:   Thank you,

16   counsel.

17              I guess I get back to where I kind of

18   started.    In all this description, these are

19   all sorts of legal issues, you don't have

20   anything more to say on the facts, right?        It

21   was an inadvertent mistake.    I don't see how

22   you can say anything more.    And the -- we've

23   had broad range of discussion on the legal

24   issues.

25              Now it's very helpful for us to have




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1    lower court decisions on those, and maybe

2    that's reason enough, but, again, I guess I

3    don't quite understand what sending it back

4    would be for other than airing of the same sort

5    of issues that we've been airing this morning.

6            MR. CLEMENT:   Well, I'm not going to

7    resist too hard you deciding this on a more

8    substantive ground that gives my client sort

9    of, you know, relief that's more enduring at

10   this stage.

11           But I will say that, you know -- you

12   know, another one of these, like, great common

13   law cases is the Street Commissioners of

14   Hagerstown, which happens to be the case that

15   Black's Law uses for its definition of "cause."

16           And one of the things it specifically

17   says there is, like, even if you don't think

18   the due process, the notice and a hearing is

19   going to amount to much, it's still an error

20   not to give it, and we're still going to

21   essentially not allow this removal to happen

22   because there wasn't notice and an opportunity

23   for a hearing.

24           CHIEF JUSTICE ROBERTS:   So it may

25   not be an error to go through the -- the




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1    process of your client coming in and saying:

2    It was an inadvertent mistake; since it was

3    inadvertent, I don't have much more to add to

4    that.

5               And the argument on the other side

6    being what the president has said:     Well, I

7    think this is a serious enough mistake, and so

8    that's why I've -- I'm removing her.

9               MR. CLEMENT:   Again, I -- there's only

10   so much I can say to resist the idea that -- I

11   mean, you know, we -- we think this was at most

12   an inadvertent mistake.     We would have liked a

13   more -- you know, sort of opportunity to do

14   that and present our actual evidence which

15   would have substantiated that.

16              But we also think, at the end of the

17   day, inadvertent mistake isn't, like, very

18   close to for cause, particularly when you

19   understand the unique nature of this

20   institution.

21              CHIEF JUSTICE ROBERTS:   What is your

22   actual evidence that would substantiate the

23   fact that it was an inadvertent mistake?

24              MR. CLEMENT:   I -- I think the fact

25   that there's an attachment to one of the




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1    applications that describes it as a vacation

2    home.    And that's not --

3               CHIEF JUSTICE ROBERTS:   Okay.    We've

4    got that too.

5               MR. CLEMENT:   No, I -- I understand.

6    But the president didn't.     And it seems to me

7    that, you know -- you know, usually, when

8    there's a procedural omission, one doesn't say,

9    well, you know, at this point, we got

10   everything we need, so forget the procedural

11   omission.

12              I mean, again, I'm not really going

13   to resist that, especially if you're going to,

14   you know, say you're with me on the substance.

15              But, you know, it does seem to me if,

16   you know, if -- if you want to reserve judgment

17   on the substance or you want more briefing on

18   the substance, you could say -- and this is,

19   you know, the -- whether it was constitutional

20   due process or statutory due process, I think

21   this is the gist of the D.C. Circuit's

22   decision, is, like, at a minimum, you didn't

23   get the process you were supposed to, so the

24   government doesn't get this extraordinary

25   emergency stay.




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1               CHIEF JUSTICE ROBERTS:   Justice

2    Thomas?

3               JUSTICE THOMAS:   Just so I'm clear,

4    for you to prevail, we would have to say cause

5    is the equivalent of INM?

6               MR. CLEMENT:   No, I don't think so,

7    Justice Thomas.    I think you could really take

8    any definition of "cause" that we've been sort

9    of batting about, with the exception of

10   General Sauer's definition, and -- and we would

11   prevail.

12              I think the only -- and -- and -- and

13   I do think the definition that's presented to

14   you by the president is a pretty extraordinary

15   one because, you know, General Sauer is a very

16   careful lawyer.    So, in his briefs, he doesn't

17   talk about mortgage fraud.      He talks about

18   apparent mortgage fraud.

19              And when you're talking about apparent

20   misconduct as opposed to actually found

21   misconduct, that, A, doesn't get for cause,

22   and, B, it sort of is a advertisement that you

23   have a process failure.      And so the fallback

24   then is "or gross negligence."

25              So one way to think about this is, if




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1    the standard of for cause is more demanding

2    than gross negligence, then we certainly win.

3    And we didn't even get a chance to sort of

4    argue about gross negligence.

5               JUSTICE THOMAS:   What is your -- if

6    it's not the equivalent of INM, what is -- what

7    are some of the other standards that you would

8    apply that would be sufficient for you to

9    prevail?

10              MR. CLEMENT:   So I think the single

11   best reading of the statute is INM plus

12   ineligibility as informed by Section 244 of the

13   statute.    I think then my fallback would be

14   then you pick up the common law.     And if the

15   common law makes you uncomfortable because of

16   Justice Alito's hypos, you could tweak the

17   common law.    But you would then be tweaking

18   the common law.

19              And I -- you know, that's why,

20   honestly, at the end of the day, although it's

21   uncomfortable for a few moments to answer some

22   of those hypos, you always have impeachment

23   as the backstop.

24              And we had, what was it, 90 years,

25   plus if you go back to the Interstate Commerce




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1    Commission in 1887, almost 150 years with INM,

2    and this didn't really pose a problem in

3    practice.

4               CHIEF JUSTICE ROBERTS:     Justice Alito?

5               JUSTICE ALITO:   Do you think that we

6    should decide this case on the factual ground

7    that what is shown by the materials that are

8    before us shows nothing more than gross

9    negligence, which is insufficient?

10              Should we make -- should we make that

11   factual finding in the first instance?

12              I understood your -- I understood your

13   answer to be you should do that if you're going

14   to find in favor of me, but you shouldn't do it

15   if you're going to find the other way.

16              MR. CLEMENT:   I'll stand by that

17   answer.

18              (Laughter.)

19              JUSTICE ALITO:   Really?   That's your

20   answer?

21              (Laughter.)

22              MR. CLEMENT:   That's my answer.    I

23   think it would be a little irregular, but this

24   whole case is irregular.     And if -- if that

25   seems to be the path of least resistance, to




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1    decide this case in a way that is going to

2    essentially obviate the need for this Court to

3    decide it again in a couple of years, that

4    seems like a perfectly reasonable way to decide

5    the case.

6              JUSTICE ALITO:   Thank you.

7              CHIEF JUSTICE ROBERTS:    Justice

8    Sotomayor?

9              JUSTICE SOTOMAYOR:   This whole case

10   is irregular, starting with the Truth Social

11   notice or thinking of it as notice at all.       It

12   certainly didn't invite an opportunity to be

13   heard.   But that's where we are.

14             Now the question becomes -- and you

15   answered the Chief and said, I don't have more

16   to present.   I don't know where you presented

17   anything.    You have a letter from you that

18   basically says that the application included

19   notice that this was a vacation home.

20             But that's never been given to the

21   president.    That's never been filed with a

22   court or no one's ever seen it.     It's just

23   statements being made.     So I don't know why a

24   factual hearing would be irrelevant.

25             So assume, as I do for the purposes,




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1    that she did fully disclose this was a vacation

2    home.    So now the question is, is this, what

3    she did, negligence or gross negligence?     Does

4    cause include just mere negligence?

5               I think that you have a very strong

6    argument under any reading of cause that mere

7    negligence pre-office would not qualify,

8    correct?

9               MR. CLEMENT:   Correct.

10              JUSTICE SOTOMAYOR:   All right.

11   Because it would seem extreme to think that

12   something separated from the functioning of the

13   office, unrelated to the work of the office at

14   the time it's done, that mere negligence would

15   be enough.    But the president called it gross

16   negligence.

17              Who decides that issue, meaning who

18   decides whether something should be called

19   negligence or just gross negligence?

20              MR. CLEMENT:   So I would think that

21   ultimately that's a mixed question of law and

22   fact that would be ultimately decided by the

23   court on judicial review, assuming you're with

24   me that there is judicial review.

25              I do think there would be an --




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1    logically anterior purely legal question of

2    whether gross negligence is sufficient for

3    cause.    And I -- just as I think I have a

4    pretty good argument that negligence pre-office

5    is not a sufficient basis for cause, I think I

6    have a pretty good argument that gross

7    negligence pre-office is not a sufficient basis

8    for cause.

9               And, you know, in some respects, I

10   think, in the long run, it will be better to

11   make clear that in the context of this unique

12   institution, with its distinct history, that

13   for cause is several steps north of gross

14   negligence even because that's going to make it

15   really something that the courts aren't going

16   to have to get dragged into on a routine basis,

17   where I think the lower the standard is, the --

18   the more likely you are to have removals in the

19   future.

20              And the lower the standard, I think

21   the greater is going to be the judicial

22   temptation to think about pretext.    And I'm not

23   going to say that there's no role for a pretext

24   inquiry, but it's not a happy sort of scenario

25   for the courts to be considering pretext in the




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1    context of presidential decision-making.

2            And it seems to me the way to solve

3    that is to say the real procedural and

4    substantive kind of bite to this term, sort of

5    for cause.    You do have to do some kind of

6    notice and opportunity for a hearing.    I mean,

7    even if it's an hour in the Oval, that's a big

8    imposition on the president's time, and that's

9    going to keep some presidents from removing

10   somebody.    And if they know that it's going to

11   be judicially reviewed, then that's going to

12   deter most presidents most of the time.

13           And so I think kind of, you know, it's

14   like -- what is it -- you know, high walls make

15   for good neighbors.    I mean, I -- I -- I think

16   this is a situation where you do want to have

17   those kind of meaningful legal requirements.

18           CHIEF JUSTICE ROBERTS:     Justice Kagan?

19           JUSTICE KAGAN:    What do you understand

20   the government to mean by "gross negligence"?

21           MR. CLEMENT:    This.   I mean, you know,

22   I don't really know.    I don't think they've

23   offered sort of a theory of gross negligence,

24   and that's why I don't think it --

25           JUSTICE KAGAN:    You think it's just a




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1    label that they've put on this particular set

2    of facts?

3            MR. CLEMENT:   Sure.   And if, heaven

4    forfend, we end up with a whole common law of

5    Fed governor removal, then we might eventually

6    be able to sort of piece it together.    But it

7    seems to me that, you know, you can -- you

8    could label an awful lot of things gross

9    negligence, and that seems to be inconsistent

10   with not just the for-cause provision but the

11   whole structure of this statute.

12           And, I mean, Justice Kavanaugh alluded

13   to the Morrison dissent and, you know, Justice

14   Scalia creating this beautiful picture of some

15   independent counsel with nothing to do but to

16   find a crime on somebody.   But, if all the

17   independent counsel has to do is find gross

18   negligence, then I don't think the independent

19   counsel would need more than a couple of hours

20   with most of us.

21           I mean, that's such an elastic

22   standard.   And I just can't imagine that's

23   consistent with all the trouble Congress went

24   to to make this unique entity insulated from

25   kind of the political pressures of the day.




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1               JUSTICE KAGAN:   Thank you.

2               CHIEF JUSTICE ROBERTS:    Justice

3    Gorsuch?

4               Justice Kavanaugh?

5               JUSTICE KAVANAUGH:    A couple things.

6    Just to talk again about the standard, I mean,

7    getting the definition of "for cause" right,

8    which we may not have to do in this posture, so

9    I take that as critical because, on the one

10   hand, you have the independence of the Federal

11   Reserve, which we've talked about; on the other

12   hand, we have people who have committed --

13   again, not talking about the facts of this

14   case -- but serious ethical or other wrongdoing

15   digging in and remaining in office.

16              And it seems like your two answers to

17   that, when you said your front-line position's

18   INM, were intervention/resignation.      And I'm

19   not sure that really works with some people who

20   are going to just dig in.       You know, they're

21   not going to leave.

22              And then the other was impeachment,

23   but, of course, with the two-thirds requirement

24   in the Senate and the time constraints of the

25   House and Senate, I'm not sure that's available




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1    as often as you say.

2            All of which is getting me to the

3    point of I don't see how the front-line

4    position really can be the -- the final

5    position without making -- kind of tilting the

6    balance here too far the other direction from

7    where the Solicitor General is.

8            You just want to tackle that at all?

9    I mean, you've covered it, but I want to get it

10   out one more time so you can succinctly answer.

11           MR. CLEMENT:   Sure.   I think the best

12   thing that I haven't said already that I could

13   add is I think, in the unique context of this

14   particular agency, you want to strike the

15   balance more in favor of keeping an official

16   who maybe in a perfect world would be removed

17   because, you know, this is the opposite of the

18   situation in essentially all of the other

19   situations, with the possible exception of,

20   like, the Tax Court and the Court of Claims and

21   the Court of Military Appeals.

22           Here, I think, you know, there -- it's

23   less important that the president have full

24   faith in every single governor, and it's more

25   important that the markets and the public have




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1    faith in the independence of the Fed from the

2    president and from Congress.

3               And in this regard, I think it's --

4    you know, this is not a situation where the --

5    unlike Myers, which is the ultimate example,

6    where the president's trying to arrogate some

7    power away from the executive.    This is a

8    situation where Congress, political animals one

9    and all, knew better than anyone that the

10   short-term temptations to lower interest rates

11   and have easy money was a disaster in the long

12   term but was going to be irresistible.

13              And so they tied their own hands by

14   taking the Fed out of the appropriations

15   process.    And they tied the president's hand.

16   And I think they tied the president's hand in a

17   pretty significant way.

18              And I understand the concerns about

19   the balance, but I would say, in this one

20   context, it probably makes more sense to, you

21   know -- and maybe you want to, you know, bring

22   in a little bit of common law, and that's fine

23   with me -- but I do think you want to strike

24   the balance so that the ultimate imperative is

25   that the markets don't think that rates are




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1    being lowered for political pressure.       When

2    rates are lowered, the markets are going to

3    understand that that's actually prudent

4    financial management of our monetary policy.

5              JUSTICE KAVANAUGH:   In your colloquy

6    with the Chief Justice about what a hearing

7    would look like within the executive branch

8    with the president or with the president's

9    designee -- I just want to make sure I have

10   this clear.   In that hearing, you could make

11   legal arguments as well, I assume, not just

12   factual arguments but legal arguments, to say

13   we don't think this rises to the level of for

14   cause.   Basically, the kinds of arguments that

15   you've made here you could make to the

16   president in the same way, in an impeachment

17   proceeding, people make legal arguments to the

18   Senate about what exactly is high crimes and

19   misdemeanors, correct?

20             MR. CLEMENT:   Correct.    And,

21   obviously, the nature of the hearing is going

22   to inform the scope for that.       If it's, you

23   know, just half an hour with the president, I

24   don't know how much you're going to get into

25   sort of legal briefing.




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1            But, if you did do anything like Taft

2    or you just said, well, we've got a couple of

3    ALJs lying around, we'll have one of them just

4    sort of hear the evidence on this, I mean, then

5    I would expect there to be presentation on both

6    evidence and law.

7            JUSTICE KAVANAUGH:   And just for the

8    kind of simplest way -- and this Justice Kagan

9    was asking -- to decide this case, I think one

10   way would just be to say there was insufficient

11   process and, therefore, we at this juncture

12   deny the government's application.   Thoughts?

13           MR. CLEMENT:   I think that would be a

14   very simple way to decide the -- this case.     I

15   think perhaps the defect that was alluded to in

16   the colloquy with the Chief Justice is that

17   probably is also, you know, the -- the way that

18   probably maximizes the chances that it gets

19   back here on the merits, whereas, if you

20   decided to go a little further and say

21   something substantive, it might bring all of

22   this to an end.   And there's probably some

23   virtue to that.   Certainly, there's some virtue

24   to that from my client's perspective.

25           JUSTICE KAVANAUGH:   Thank you.




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1               CHIEF JUSTICE ROBERTS:    Justice

2    Barrett?

3               JUSTICE BARRETT:    I'm going to ask you

4    about irreparable harm.       You were just talking

5    to Justice Kavanaugh about the uniqueness of

6    the Fed and its need for independence.         And the

7    government, because it has not challenged the

8    removal restriction, for purposes of this case,

9    I think we're all operating on that assumption.

10              When the president -- if you're

11   thinking about the unitary executive, when the

12   president has untrammeled authority to fire a

13   subordinate, keeping that subordinate in

14   office, I think, inflicts maybe a different

15   kind of irreparable harm than the argument that

16   the government would be able to make here

17   because the government -- the president doesn't

18   have the same control over the Fed at least

19   based on the assumptions we have in this case.

20              What do you think about that?    And

21   what kind of an argument would you make for --

22   what is your best-case argument that the

23   president is not suffering irreparable harm by

24   the inability -- let's assume that he has the

25   ability to remove Governor Cook.      Let's assume




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1    that some of your merits arguments are going to

2    lose.    They still have to show irreparable

3    harm.

4               So what's your best argument that he's

5    suffering none?

6               MR. CLEMENT:   Well, I think my best

7    argument that he's not suffering irreparable

8    harm in those circumstances is that he's --

9    he's not suffering the unique indignity of

10   having sort of pure executive power exercised

11   by people that are removable at will in --

12   outside of his control.

13              And maybe that's a little circular in

14   the end, but -- but I think it's -- like,

15   it's -- it's kind of why this case is, I think,

16   problematic for the government because, you

17   know, they -- they could have come in here and

18   said, you know, Fed schmed, it's not that

19   different.    This is just like the FTC, and so

20   we're suffering the same irreparable injury as

21   in those other cases.

22              But, when they come in and say, no,

23   we're going to accept that the Fed is different

24   at least for purposes of this case and that we

25   can't remove somebody just for policy




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1    disagreements, then having somebody continuing

2    in office just because you have a different

3    conception of "for cause" than they do or than

4    you've been able to persuade a court so far

5    about doesn't strike me as irreparable harm.

6               And then, on the other side of the

7    ledger, I think there are enormous irreparable

8    harms here that really don't have an analog in

9    most of these other situations.     I don't mean

10   to denigrate any other agency, but, you know,

11   there's a reason that monetary policy has been

12   treated differently for, you know, lo these

13   many years, and there's a reason that the

14   markets watch the Fed a little more closely

15   than they watch really any other agency of

16   government.

17              CHIEF JUSTICE ROBERTS:   Justice

18   Jackson?

19              JUSTICE JACKSON:   So you've had a

20   couple questions about what good is a hearing,

21   what would a -- what would a hearing do in this

22   situation where Ms. Cook has made a statement

23   through her lawyer about the -- about the

24   allegations.

25              I guess I'm wondering, setting aside




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1    for a moment the standards for cause, don't we

2    have to have a circumstance in this kind of

3    situation in which the facts are established?

4               In other words, I thought the work of

5    the hearing even in this situation would be to

6    establish when these applications were signed,

7    what she thought she was attesting to, what

8    actually was going on with respect to these

9    documents that the president is pointing to

10   that says -- and he says they establish her

11   deceit and gross negligence or whatnot, and --

12   and I think before we even get there, we have

13   to know what the facts are related to this.

14              Isn't that what the hearing would be

15   about at least in part?

16              MR. CLEMENT:   I -- I think it would

17   be.   And maybe, though, to try to defend my,

18   you know, heads I win, tails you lose answer to

19   Justice Alito, I mean, you know, you -- you

20   could think about this by analogy.     I mean,

21   there are certain circumstances where you

22   essentially grant a motion to dismiss for one

23   side.

24              You basically say, look, we didn't

25   have a hearing here, that was a mistake.     But,




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1    even on sort of the best reading of the

2    evidence, this is at most an inadvertent

3    mistake, and so there is no for-cause removal,

4    in which case my client would win.

5             On the other hand, if, you know,

6    normally, you have that kind of evidentiary

7    hearing and that is to establish sort of the

8    facts, and then you then apply the law to those

9    facts that have been established.

10            JUSTICE JACKSON:    Right.

11            MR. CLEMENT:    But there are

12   circumstances --

13            JUSTICE JACKSON:    There are

14   circumstances.

15            MR. CLEMENT:    -- where you sort of

16   don't need any more facts.

17            JUSTICE JACKSON:    But -- but you --

18   but -- but then you're in -- you're in Justice

19   Kavanaugh's world, which is you would still at

20   the hearing then go to the legal question of

21   whether or not what you agree happened here

22   counts as gross negligence.    You would say it

23   has to be at least that in order to satisfy the

24   for-cause standard.     The other side would say

25   no.




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1            So there's something -- there's some

2    work to be done in a hearing?

3            MR. CLEMENT:     Absolutely.   And what

4    I -- another way of putting it is, look, the

5    denial of the hearing to my client, if she does

6    indeed have a right to a hearing, can -- cannot

7    be harmless error, like it just can't, no

8    matter what you think of the facts.

9            On the other hand, if you agree with

10   us on the law, you could still resolve this

11   case in her favor on the grounds that, you

12   know, there were two mistakes here.     One, she

13   didn't get a hearing, but we don't have to,

14   like, remand for a hearing --

15           JUSTICE JACKSON:    Yeah.

16           MR. CLEMENT:     -- or any of the -- the

17   rest because even on the facts kind of most --

18   you know, in the light most favorable to the

19   government, this isn't a removable offense and

20   then we would be done.

21           JUSTICE JACKSON:    Can I go quickly to

22   the standards?   Because, as I read the --

23   the -- the sort of what happened here, it

24   wasn't as though the district court just sort

25   of made it up in terms of what she thought




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1    should count as for cause.   My understanding is

2    that she was looking, as you've said several

3    times, to the common law and what courts have

4    traditionally said.

5            And I see, for example, a court, a

6    Maryland court, Board of State Commissioners of

7    Hagertown -- Hagerstown in 1903, which is

8    around the same time as the establishment of

9    this statute, that said "the phrase 'for cause'

10   must mean some cause affecting the ability or

11   fitness of the incumbent to perform the duty

12   imposed upon him."

13           And other similar courts at the time

14   talked about pre-tenure conduct and said, if it

15   was pre-tenure, it can't be sufficient cause

16   unless it was serious enough to undermine the

17   job performance.

18           A mere allegation was not enough back

19   at common law.   It had to have been tested and

20   proven like through a conviction.

21           So these standards that were used here

22   to determine at least at the district court

23   level whether cause was satisfied came from

24   somewhere, is that right?

25           MR. CLEMENT:   Absolutely.   And, you




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1    know, I love that Hagerstown case because not

2    only is it a very helpful common law case, but

3    it's actually the basis for the definition in

4    Black's Law that the government and Judge

5    Katsas below relied on.       I mean, you know,

6    Black's Law is an unusual dictionary.        It just

7    doesn't sort of, you know, pop out the meaning

8    from, like, Noah Webster's mind.        It, like,

9    cites cases for particular concepts.

10              And the concept -- the case it cites

11   for "for cause" is that Hagerstown case.

12              JUSTICE JACKSON:    And so all the

13   hypotheticals, I mean, we -- we -- we see them

14   and they might be problematic, but they would

15   be tested against the standards that the courts

16   have applied, right?

17              MR. CLEMENT:   Absolutely.    And -- and

18   if I could just elaborate in -- in -- in one

19   respect, I mean, you know, if you think about

20   pre-office conduct, there's only two kinds.

21   One, there is pre-office conduct that was

22   disclosed to the Senate in the confirmation

23   process.    And as to that, even the government

24   sort of says, well, you probably shouldn't let

25   the next president sort of relitigate all of




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1    that.

2               And then the second kind is stuff that

3    was undisclosed.    And if it's as serious as

4    we're talking about, that's essentially the

5    nominee, you know, defrauding the -- the

6    Senate.    And so I actually think, in that

7    respect, impeachment is probably a more fit

8    remedy than it might be in some other

9    circumstance because you're going to have

10   whatever the conduct is, plus you're going to

11   have the Senate being pretty darn vexed that

12   that was withheld from them in the confirmation

13   process.

14              JUSTICE JACKSON:    Final question.   Do

15   you -- I -- I -- I took you to be conceding

16   that there was notice here, and I guess I'm a

17   little concerned about that.

18              I mean, do -- are you conceding that a

19   posting on social media is sufficient notice in

20   a situation like this when the president is

21   seeking to remove a governor for -- for cause?

22              MR. CLEMENT:   So what -- what I would

23   say is, you know, I -- I think --

24              JUSTICE JACKSON:    I mean, I know it

25   happened.    She got notice.    We live in a world




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1    that is connected, but I -- I guess isn't

2    notice a particular thing in the common law?

3               MR. CLEMENT:   Well --

4               JUSTICE JACKSON:   Or in our law?

5               MR. CLEMENT:   -- I mean, put it this

6    way.   Like, I -- I don't sort of resist the

7    idea that the Truth Social post is notice

8    because I think it's also fundamentally

9    defective notice because it's also indisputable

10   evidence that the president prejudged the

11   matter.

12              JUSTICE JACKSON:   Right, because

13   it's --

14              MR. CLEMENT:   And so it's not the kind

15   of -- it's not the kind of notice that --

16              JUSTICE JACKSON:   I understand.    So --

17   so hypothesize he didn't say you are fired or

18   you should be fired.      Hypothesize he just said,

19   you know, I have this information and I intend

20   to fire the governor.

21              Why wouldn't he have to, like, send

22   the letter to her?    How -- how is it that we

23   can assume that she's on social media or has

24   looked at the news or that that's sufficient

25   notice even if she did turn on the news and




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1    he's saying that?   I -- I don't know why that

2    would be enough.

3            MR. CLEMENT:   Look, I -- I -- I

4    might -- I might make that argument, but that

5    doesn't seem -- you know, I mean, if he -- if

6    he said on Truth Social that, look, here I have

7    this allegation and I'm going to convene a

8    hearing at, you know, the Roosevelt Room at 4

9    p.m. tomorrow, please bring all your

10   evidence --

11           JUSTICE JACKSON:     What if she doesn't

12   have a Truth Social account, she doesn't show

13   up, is that enough notice?

14           MR. CLEMENT:   You know, I -- I think,

15   under those circumstances, probably not, but I

16   think, as a practical matter, in most

17   circumstances, the president puts it on Truth

18   Social, most people most of the time are going

19   to consider that to be notice.

20           Again, the -- part of the reason I'm

21   not resisting is -- or I'm, you know, sort of

22   moderating this is because, you know, this

23   notice isn't the kind of notice the common law

24   envisioned because the common law would

25   envision notice that didn't prejudge the




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1    matter.

2               JUSTICE JACKSON:   Thank you.

3               CHIEF JUSTICE ROBERTS:   Thank you,

4    counsel.

5               Rebuttal, General Sauer.

6              REBUTTAL ARGUMENT OF GEN. D. JOHN SAUER

7                    ON BEHALF OF THE APPLICANTS

8               GENERAL SAUER:   Thank you, Mr. Chief

9    Justice.

10              Turning to the question of whether or

11   not in-office or pre-office misconduct can

12   constitute cause, I want to make a statutory

13   point, which is that the INM standard is by --

14   on its terms limited to in-office misconduct,

15   and Congress did not adopt that here.

16              They adopted the more capacious

17   standard, as this Court recognized in Collins

18   against Yellen, cause gives the president more

19   discretion and provides less protection to

20   the -- to the officer than the INM standard

21   does.

22              And even if we were in a situation

23   where you're looking at the -- the -- the 19th

24   century case law and so forth, they disregard a

25   series of cases that hold that pre-office




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1    misconduct is sufficient cause.

2            For example, In re Guden, which, you

3    know, from New York in 1902, which involved an

4    officer who had engaged in a kind of shenanigan

5    in order to get the office in the first place.

6    There was a -- a corrupt agreement to appoint

7    somebody to a position if they supported that

8    person politically.

9            Iowa against Walsh, which was

10   pre-office embezzlement.   Gill against

11   Watertown, a case they rely heavily on, it was

12   said in dicta at least that gross frauds

13   committed before office would constitute cause

14   to remove.   So there really isn't support

15   anywhere for this notion that pre-office

16   misconduct can't be considered when it comes to

17   a cause standard.

18           And -- and related to that, I thought

19   it was very telling that Mr. Clement was saying

20   that if it does come to pre-office misconduct,

21   impeachment would be the only remedy that would

22   provide it, which, if taken to its full extent,

23   would make governors of the Federal Reserve

24   have the kind of tenure protections that the

25   Constitution affords to Article III judges.




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1               That is not what this statute says.

2    That is directly in the face of the statutory

3    language, which says cause with no further

4    restrictions.    Clearly, Congress envisioned

5    that they could be removed for a good enough

6    reason.

7               And on that point, I just want to

8    emphasize there was this colloquy about whether

9    it should be sent back or decided now on the

10   merits.    Whichever way the Court comes out on

11   that, the Court should not -- should send it

12   back with an emergency stay, and I want to

13   emphasize two reasons there.

14              This Court -- no court should hold

15   that the misconduct that's alleged here, which

16   is at least gross negligence, at least an

17   inadvertent notation that is a grave

18   misrepresentation on a mortgage document that's

19   designed to determine the governor's interest

20   rates, is not cause to remove a principal

21   officer of the United States who sets interest

22   rates for the entire country.

23              So all the discussion of what are the

24   outer bounds of cause, where is judicial

25   review, on that fundamental court, neither this




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Official - Subject to Final Review


                                                      136


1    Court nor any other court should look at this

2    and say this is likely not cause.

3               That sends the wrong message to the

4    markets.    It sends the wrong message to the

5    American people, who have to make correct

6    representations to their banks when they're

7    getting their mortgage interest rates.

8               And the second point I would make is

9    the remedy granted here, a preliminary

10   injunction that runs against the president

11   reinstating a principal officer of the United

12   States, is something that has never been

13   granted before 2025 in this Court or in -- in

14   the nation's history and, in fact, contradicts

15   a clear holding of this Court in Sawyer that a

16   preliminary injunction is not available in

17   equity.

18              Those two reasons alone clearly

19   suffice to send it -- if -- if there is going

20   to be a decision to send it back, to send it

21   back with the emergency stay that we've asked

22   for.

23              And then, if the Court -- if -- if --

24   if the Court decides to sort of send the case

25   back to have many more of these issues that




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Official - Subject to Final Review


                                                      137


1    we've discussed today to be aired, we would

2    urge the Court, and I think Mr. Clement

3    wouldn't disagree, to direct the lower courts

4    to proceed very expeditiously.      Here, this

5    is -- we are in an emergency stay posture.       The

6    executive has been suffering irreparable harm

7    since early September, and the sooner that

8    these issues are resolved, the better.

9               Thank you.

10              CHIEF JUSTICE ROBERTS:   Thank you,

11   counsel.

12              The case is submitted.

13              (Whereupon, at 12:01 p.m., the case

14   was submitted.)

15

16

17

18

19

20

21

22

23

24

25




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138
                                                Official - Subject to Final Review
                            account [3] 19:14,17        72:12 79:19,22 86:19 analogous [1] 14:18                  argument [44] 10:1,21
           1            132:12                          94:19 95:12 126:21                    [1]
                                                                                  analogy 125:20                   17:23 27:17 29:5 31:
112 [1] 49:24          accurate [1] 54:15               127:9                     animals [1] 119:8                15 46:21 50:24,24 54:
13 [1] 62:7            accused [3] 14:15 19: agreed [1] 61:18                     another [5] 12:2,4,4             7 59:18 60:14 62:10
14 [1] 63:1             11 51:15                       agreement [2] 76:19         106:12 127:4                    63:3,6,7 69:4 72:6
1-4 [1] 25:8           acknowledge [1] 6:16 134:6                                 answer [13] 54:23 80: 73:15 76:11,15 78:8,
150 [2] 81:4 111:1     across [4] 19:23 27:6 aim [3] 64:9,13,14                    15,22 87:16,19 99:23 11 79:9 82:9,10,11,
165 [1] 9:16            28:4 57:9                      aims [1] 64:7               110:21 111:13,17,20, 24 83:10,11 100:4,18
166 [1] 9:17           act [1] 26:15                   airing [2] 106:4,5          22 118:10 125:18                103:7 107:5 113:6
        [3]
1789 5:2 20:25 33:     acting   [3]  13:16     95:23   alito [33] 35:11,12 36: answered [1] 112:15                 114:4,6 122:15,21,22
 9                      97:4                            2,21 37:6,8 40:6,11       answering [1] 80:18              123:4,7 132:4 133:6
1887 [1] 111:1         action [3] 49:23 53:11 42:13 65:17 75:15                   answers [2] 80:21               arguments [15] 69:22
19 [1] 61:17            86:11                           76:6,14,24 77:7,13,        117:16                          72:4 74:20,21 83:8,
1902 [1] 134:3         actions [1] 53:13                16,20 78:19,22,23 81: antecedent [1] 5:6                   19 84:11,11 101:9
1903 [1] 128:7         acts [1] 34:9                    13,15 95:3 96:5,9,13 anterior [1] 114:1                    120:11,12,12,14,17
        [1]
1905 59:24                      [4]
                       actual 64:23 66:3                98:14 111:4,5,19 112: anybody [4] 33:22 93: 123:1
1913 [3] 61:17 69:12    107:14,22                       6 125:19                   4 96:25 97:3                   around [6] 35:2 50:5,5
 71:8                  actually    [16]   17:15   46:  alito's  [3]  38:19  98:18 apartment       [1]  39:12       51:3 121:3 128:8
1935 [2] 27:23 71:8     3 61:8 64:14 67:6 71: 110:16                              apparent [4] 70:4 102: arrogate [1] 119:6
19th [2] 60:12 133:23   5 73:2 79:16 84:7 99: aljs [1] 121:3                       23 109:18,19                   article [7] 6:4,5 32:4
                        25 105:7 109:20 120: allegation [5] 24:15,                apparently [3] 43:9 49: 59:24 63:4 84:25
            2           3 125:8 129:3 130:6             16,17 128:18 132:7         13 65:5                         134:25
2025 [2] 5:2 136:13    add [3] 92:21 107:3             allegations [4] 28:8       appeals [2] 56:6 118: aside [4] 61:11 85:5
2029 [1] 50:8           118:13                          52:18 98:8 124:24          21                              87:10 124:25
        [1]
2033 50:9              addition     [3]  34:9   67:    alleged     [2] 25:2 135:  appearance        [1]  19:24    assert  [1] 22:23
       [2]
20th 50:8,9             21 68:17                        15                        appearances          [1] 51:    asserting     [1] 69:19
225 [1] 21:5           address [2] 11:9,23             alleging [1] 21:12          23                             assume [6] 26:15 112:
244 [5] 71:12 101:11   addressed [5] 11:9 40: allocation [1] 56:19                appears [1] 23:23                25 120:11 122:24,25
 102:5 103:5 110:12     7,9 73:22 91:5                         [3]
                                                       allow 24:12 67:5           appellate [1] 86:25              131:23
25th [3] 17:16,24 25:8 addresses [2] 25:4,10 106:21                               applicants [1] 133:7            assumes [1] 77:9
                       addressing [2] 13:25 allowed [1] 60:25                     application [14] 12:11 assuming [4] 22:16,
            4           26:8                           allowing [4] 19:1 21:       39:25 68:6 70:15,18             18 85:7 113:23
  [2]                  adequate       [3] 39:3 56:      17 22:19,25                81:12,17     91:6    103:18,   assumption        [2] 93:17
4 62:6 132:8
                        20 57:22                       alluded [10] 33:10 68: 23 104:5 105:14 112: 122:9
            9          adjudicatory [1] 12:5            18 71:20 75:2,6 78:        18 121:12                      assumptions [1] 122:
                                              [1]
                       administrative 54: 12 88:14 90:8 116:12 applications 25:11 19                  [5]
9 [1] 62:5
90 [3] 77:5 78:5 110:   5                               121:15                     35:20,24 108:1 125:6 asterisked [1] 61:7
                       admiration        [1] 77:11     almost    [3] 60:4 104:    applied   [3] 49:23 54:8 atlanta [1] 39:17
 24
                       admission [1] 12:13              11 111:1                   129:16                         attachment [1] 107:25
            A          admit [1] 31:16                 alone [3] 49:4 68:22       apply [7] 7:5 42:2,6            attention [1] 75:24
                       adopt   [1] 133:15               136:18                     45:14  46:5     110:8          attesting   [1] 125:7
abandon [1] 70:16                   [4]                            [5]
                       adopted 42:10 51: already 17:18 55:3 126:8                                                 attorney's [1] 38:22
abandoning [1] 84:10                                                                         [1]
                        21 55:9 133:16                  56:20 71:19 118:12        appoint 134:6                   at-will [2] 50:10 69:25
ability [6] 8:23 10:11
                       advanced [1] 83:18              alternative [2] 33:4,13 appointees [1] 50:7                august [3] 17:16,24
 20:20 69:19 122:25
                       adversary [1] 39:6              although [1] 110:20        appointment [1] 16:              25:8
 128:10                                       [1] 109: american [2] 21:5 136: 20                                               [12] 5:9 6:7
                       advertisement                                                                              authority
able [4] 75:23 116:6
                        22                              5                         appreciate [2] 22:17             9:5 19:20 32:20,24
 122:16 124:4
                       affecting [1] 128:10            americans [4] 19:23         100:4                           37:19 56:24 68:20
absolutely [10] 30:2                 [3]
                       afforded 26:3 53:                20:6,11 66:11             appreciated [1] 63:15 91:17 95:23 122:12
 79:22 80:12 97:25
                        10,17                          amici [3] 48:7,20 104: appropriate [4] 20:3                authorized [1] 48:23
 99:17,19 101:24 127:
                       affords [1] 134:25               6                          54:18 84:20,21                 authorizes [1] 96:23
 3 128:25 129:17               [1] 55:25                           [8] 17:7 18:7,                         [2] 70: available [8] 14:22 45:
                       afraid                          amicus                     appropriations
abuse [1] 98:23
                       agencies [2] 26:21 55: 11 20:9 29:1 53:20                   10 119:14                       22 46:2,4 49:3 67:12
academic [1] 5:13                                                                         [1] 24:22
                        1                               60:1  82:20               arbiter                          117:25 136:16
accept [4] 9:18 47:14
                       agency [7] 5:8 13:2,4 among [2] 22:22 54:                  aren't [2] 83:9 114:15 avenue [2] 84:20,22
 50:16 123:23
                        63:20 118:14 124:10, 23                                   argue [4] 22:25 34:3,4 avoidance [2] 82:11,
accompanying [1] 62:
                        15                             amount [4] 42:9 43:2        110:4                           17
 6                             [14] 18:5 33:3,                                             [2] 35:1 79:20 aware [1] 51:6
                       agree                            72:14   106:19            argued
accorded [1] 53:10
                        13 40:17 52:2 64:1             analog [1] 124:8           arguing [1] 69:18               away [1] 119:7
                                                  Heritage Reporting Corporation
Sheet 1                                                                                                                      112 - away

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139
                                             Official - Subject to Final Review
awful [1] 116:8           12 97:2                       buckets [1] 86:2         22,23                     cites [4] 53:20 104:24
                          believes 39:3 [1]                     [2]
                                                        bunch 61:11 82:20 causing 13:2       [1]            129:9,10
             B            below [5] 11:18 40:7, burden [5] 10:3 57:5            caution [1] 18:22          city [3] 15:18 29:12,13
back [28] 7:1,19 29:23 10 84:6 129:5                     60:14 63:7 83:25       caveat [2] 46:4 75:19 civil [1] 70:10
34:7 38:18 41:7,21        best [7] 101:11 105:6 business [1] 18:3               central [3] 5:5 70:17      claim [4] 35:18 67:3,6
42:6 54:11 57:5 58:       110:11 118:11 123:4, buy [1] 7:19                      93:15                      68:8
12 66:19 69:11 83:8, 6 126:1                            buying [1] 8:11         century [2] 60:12 133: claimants [1] 34:24
17,21,22 99:23 105: best-case [1] 122:22                bypass [1] 29:2          24                        claiming [1] 66:25
                                    [8]
17 106:3 110:25 121: better 7:22 8:17 54:                                                  [3]
                                                                                certain 104:22,23          claims [2] 59:11 118:
19 128:18 135:9,12        15  78:4      82:10    99:12              C            125:21                     20
136:20,21,25              114:10      119:9                    [2]
                                                        called 113:15,18        certainly     [9] 5:25 6:6 clarifying   [1] 100:20
background [2] 31:22 between [7] 11:13 19: calling [1] 27:5                      27:16 57:20 77:2 79: clause [1] 56:12
59:14                     18 28:15 42:15 51:24 came [3] 19:3 93:25               15 110:2 112:12 121: clear [11] 13:21 34:13
backstop [1] 110:23       65:16 92:1                     128:23                  23                         45:25 47:2,5 55:12
backup [17] 76:11 78: beyond [2] 9:10 100: camps [4] 21:1 42:15 cetera [2] 61:3,4                           90:13 109:3 114:11
8,10,11 79:3,4,6 80:9, 16                                51:24 65:17            cfpb [1] 42:13              120:10 136:15
10 81:6,7 84:11 93:       biden    [1]  69:13                    [6]
                                                        cannot 12:14 32:        challenge [4] 9:21,23 clearly [11] 6:13 8:24
11,11,12 100:24,25        big [4] 8:5 50:4 57:14         16 35:4 46:6 50:22      10:2 34:16                 10:10 25:12 31:4 35:
bad [1] 54:21             115:7                          127:6                  challenged [2] 6:22         4 38:17 59:20 65:10
baked [1] 46:8            bind [1] 91:8                 capacious [3] 70:4 71: 122:7                        135:4 136:18
balance [7] 20:12 48: bit [6] 21:11 28:22 94: 9 133:16                          chance [5] 28:9 55:7       clerk [3] 15:16 29:12,
21 52:3 118:6,15 119: 25 95:1 98:7 119:22 card [1] 5:22                          57:12 87:4 110:3           14
19,24                     bite [2] 70:14 115:4          careful [4] 37:20,23    chances [1] 121:18         clever [1] 88:8
balanced [1] 21:8         black's [3] 106:15 129: 98:8 109:16                   change [2] 39:14 63:       client [6] 38:25 82:2
bank [6] 39:8,14,19       4,6                           casa [1] 21:4            10                         106:8 107:1 126:4
70:17 71:14 93:15         board [4] 29:8 36:14          case [92] 5:5 6:4,23 7: characterization [1]        127:5
banks [3] 5:21 6:20       82:7 128:6                     6 12:3,9 13:21 14:10, 51:10                       client's [1] 121:24
136:6                            [2]
                          body 81:19 96:6                19 15:3,10,11 17:12 chase 71:16 102:9 clinton [1] 87:25
                                                                                         [2]
    [3]
bar 49:3,9,10             borderline 44:24  [1]          19:9 21:18 22:4 26:3 cheney [2] 47:2 86:20 close [6] 7:13 19:17
barrett   [25] 17:3 18:1, both  [6]   20:25     30:20    27:15 31:21,22,25 32: chief [41] 6:15,25 8:8       23:16 44:10 81:8
14,17 19:5 20:3 21:       37:4   38:5     51:2    121:5  6 35:21 36:5 38:11      24:8,11    32:18    33:15  107:18
13 55:22,23 57:2,18 boundaries [1] 92:19                 42:14 44:23,24,24 45: 34:18 35:6,9 37:12          closely [1] 124:14
58:4,9,11 98:11 99:3, bounds [3] 92:19 101: 4,24 46:3 47:7 53:3,4 41:19,21 42:6 45:9                       closer [2] 45:24 95:1
7,14,18 100:2,19,25       7 135:24                       54:21 55:19,20 56:4     47:11 55:21 60:15         codd [1] 41:1
102:11 122:2,3            branch      [10]  5:8 35:14    59:1,6,9,14 60:2,12,    69:1,6 73:13 74:2,19, collins [1] 133:17
         [4]
based 23:18 66:3          36:3 57:1,16 64:16             19 69:16 74:3,15 79: 23 88:14 105:15 106: colloquies [1] 75:7
76:19 122:19              75:1   94:16       96:10       23 81:16 84:22,23 85: 24 107:21 108:3 109: colloquy [3] 120:5
baseless 37:2[1]          120:7                          1,23 87:24,25 88:1,     1 111:4 112:7,15 115: 121:16 135:8
bases [1] 91:5            branches [1] 102:1             17,18,19,20 89:1,11, 18 117:2 120:6 121: combination [5] 62:13,
basically [5] 65:3 88:6 brief [10] 33:4 45:1 52: 15 93:17 95:19 101:3 16 122:1 124:17 133: 15,16,21 63:2
112:18 120:14 125:        8 53:20,20 60:1,2,22 102:14,25 106:14                  3,8                       come [11] 43:16 52:15
24                        62:5 63:4                      111:6,24 112:1,5,9               [1]
                                                                                chief's 38:20               57:5 61:11 67:4 74:6
basis [16] 5:6 24:23      briefing [12] 7:14 44:2, 117:14 121:9,14 122: choice [2] 42:11 96:                99:15 102:22 123:17,
28:7 33:4,14,16 35:       20 84:6,8 87:3 104:3, 8,19 123:15,24 126:4 21                                     22 134:20
18 73:24 74:17 77:2       6,7 105:13 108:17              127:11 129:1,2,10,11 choices [1] 12:15            comes [5] 20:6 31:17
78:13 83:7 114:5,7,       120:25                         133:24 134:11 136:     circuit [16] 10:18,19       50:5 134:16 135:10
16 129:3                  briefs [7] 17:7 18:7,11 24                             34:11 35:15 36:10,17, coming [1] 107:1
batting [1] 109:9         20:9 29:1 82:20 109: cases [21] 9:8,12 12:2 24,25 40:14 82:1,12 comments [1] 55:18
        [2]
battle 60:11,13           16                             15:5 37:17,24 45:1      87:23 88:12,20 91:4, commerce [1] 110:25
      [1]
bear 60:13                bring   [6]  30:22     41:6    59:16 60:10 61:11       8                         commission [1] 111:1
             [1]
beautiful 116:14          100:14      119:21      121:   62:7,20 63:1 66:16     circuit's    [1] 108:21    commissioner [2] 15:
becomes [2] 39:24         21 132:9                       104:11,25 105:2 106: circular [1] 123:13           19 29:13
112:14                    brings [1] 42:6                13 123:21 129:9 133: circumstance [3] 34: commissioners [2]
began [2] 7:4 35:17       broad [7] 9:4,11,13 44: 25                             19 125:2 130:9             106:13 128:6
beginning [1] 88:17       2,7 64:4 105:23               categorically [1] 83:   circumstances [8] 61: committed [4] 12:24
behalf [2] 69:5 133:7     broader [3] 47:25 48:          13                      7 67:4 123:8 125:21        43:23 117:12 134:13
             [3]
behavior 19:3 23:         4 64:14                       cause' [1] 128:9         126:12,14 132:15,17 common [23] 40:17
24 105:3                  brought [1] 17:6              causes [7] 30:22 31:    cite [4] 45:1 59:13 60: 76:12 78:11,16 100:
believe [3] 21:16 28:     bryce [1] 84:25                17,19 38:11 59:7 104: 10 62:6                      14,20 104:11,21,25
                                              Heritage Reporting Corporation
Sheet 2                                                                                                    awful - common

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140
                                         Official - Subject to Final Review
 105:1 106:12 110:14, 116:23 119:2,8 133: contradicts [2] 54:9          creating [2] 70:8 116: 14,16 96:18,19 98:3,
 15,17,18 116:4 119:      15 135:4                136:14                 14                      4
 22 128:3,19 129:2       connected [1] 131:1     contrary [1] 10:5      creative [1] 88:7        decisionmakers [1]
 131:2 132:23,24         connection [1] 11:22 control [4] 51:25 65:     credibility [2] 19:1 66: 96:7
competence [3] 8:23 consciously [1] 51:21 19 122:18 123:12               10                      decision-making [1]
 10:11 32:15             consequences [1] 51: convene [1] 132:7         credibly [2] 14:15 51:   115:1
competing [1] 34:24       7                      conviction [6] 78:17    15                      decisions [6] 53:9 54:
complete [2] 51:25 65: consider [3] 18:6 83:8 79:1 80:11 100:8,21 credit [1] 5:21                15 83:14 91:7,7 106:
 19                       132:19                  128:20                crime [6] 19:13,14 40: 1
compliment [1] 100:      consideration [1] 13: convince [1] 54:16        19,20 78:14 116:16      declaratory [5] 85:2,5
 13                       7                      cook [15] 7:12 12:6,8 crimes [3] 98:22 100:     87:7,8,20
components [1] 95:10 considered [5] 25:1          14:11 17:9 21:17,20    7 120:18                declined [1] 53:12
compromise [3] 42:14 40:18 54:18 91:9             25:14 27:5 32:11 39: critical [1] 117:9        deep [1] 77:10
 51:24 65:16              134:16                  7 57:10,11 122:25     curium [1] 82:13         defect [1] 121:15
concede [2] 32:16 58: considering [1] 114:        124:22                current [2] 50:6 52:13 defective [1] 131:9
 4                        25                     cook's 23:20 25:1 cursory [1] 36:4
                                                          [5]                                    defend [6] 57:13 75:
conceded [7] 9:20 12: consistency [1] 60:6        38:22 39:18 68:6                               18,25 76:2 83:10 125:
 16,21 44:20 46:1 63: consistent [4] 33:1 59: correct [15] 10:24 12:                D            17
 17 64:13                 5 84:24 116:23          16,17 32:19 37:11 38: d.c [15] 10:18,19 35:    deference [7] 8:25 53:
conceding [2] 130:15, consistently [3] 9:12       1 40:8 76:1 80:16,17 15 36:10,17,24,25 82: 18 91:22,23 92:4,4,
 18                       53:10,12                113:8,9 120:19,20      1,12 87:23 88:12,20     17
conceivable [1] 60:5     conspicuously [2] 5:1 136:5                     91:4,7 108:21           deferential [2] 9:24 51:
concept [1] 129:10        21:3                   corrected [1] 37:8     dalton [2] 9:9,25        20
conception [2] 70:4      constitute [5] 5:15 11: corrupt [1] 134:6      damage [1] 18:25         defiance [1] 55:6
 124:3                    16 76:9 133:12 134: couldn't [3] 56:8 61:     darn [1] 130:11          define [1] 49:19
concepts [1] 129:9        13                      10 103:11             dawn [1] 46:9            definition [7] 11:11
concern [4] 20:10 53: constitution [2] 10:24 counsel [13] 6:25 7:12 day [5] 88:4,24 107:17 106:15 109:8,10,13
 23 54:19 70:21           134:25                  10:16 18:21 24:8 40: 110:20 116:25             117:7 129:3
concerned [1] 130:17 constitutional [9] 10:       24 41:3,5 105:16 116: days [4] 7:13 17:18      definitive [1] 89:12
concerns [1] 119:18       17 56:24 80:3 82:11, 15,17,19 133:4            57:6 96:3               defrauding [1] 130:5
conclude [3] 5:7 27:      15,17 84:16 98:6 108: count [2] 62:23 128:1 de [6] 15:16,25 29:14 degree [3] 92:3,4,5
 12 28:1                  19                     country [3] 19:23 23:   44:8 85:22 89:25        delegate [1] 97:16
conclusion [1] 10:8      constitutionality [1]    23 135:22             deal [2] 57:14 102:17 delegated [1] 10:5
concurring [1] 88:5       47:14                  counts [2] 81:25 126: dealing [1] 102:13        delgado [3] 15:10 29:
conduct   [24] 5:17 8:                [1]
                         constraint 83:16         22                    dealt [1] 91:10          2,11
 22 10:10 11:12,14,14 constraints [1] 117:24 couple [12] 29:16 37: debate [5] 8:9 87:2           demanding [2] 93:5
 19:18 21:24 23:20       construed [1] 99:6       14 78:18 82:19 85:14 101:20,20,23              110:1
 32:14 40:18 75:18,21 contemporaneous [1] 88:13 100:10 112:3                       [1]
                                                                        debates 101:22           democratic    [1] 50:8
 76:8 79:13 80:4 81:      105:7                   116:19 117:5 121:2    deceit [6] 7:5,10 39:    denial [1] 127:5
 24 98:15,16 103:8       contend [4] 6:2,10 8:    124:20                 15,21,22 125:11         denied [1] 70:15
 128:14 129:20,21         20 32:13               course [10] 5:12 7:16 decide [15] 12:12 13:6 denigrate [1] 124:10
 130:10                  contended [2] 7:14 31: 21:1 34:6 42:1 77:22 27:14 29:12 34:17           deny [2] 103:19 121:
conference 27:6[2]        25                      80:13 81:9 83:15       81:11 84:15 92:18       12
 28:4                    contention [3] 28:25     117:23                 102:25 111:6 112:1,3, department [1] 12:20
conferral [1] 9:5         55:3 62:4              courts [22] 13:9 32:19 4 121:9,14               depend [1] 94:16
confers [2] 44:2,6       contest [1] 25:16        33:22 37:10 60:4 61: decided [9] 10:18 36: dependent [1] 27:14
confidence [2] 13:11, context [13] 8:6 23:19 7,10 66:17,20,20,22         5,10 37:10 63:20 81: depends [3] 83:24 92:
 11                       40:25 41:13 60:13       67:6 68:13 81:21 92: 21 113:22 121:20          4 94:17
confident [1] 80:8        71:11,18 84:4 91:19     7,18 93:3 114:15,25    135:9                   derive [1] 9:1
confirmation [3] 11:      114:11 115:1 118:13 128:3,13 129:15           decides [5] 37:19 89: described [2] 16:5,8
 19 129:22 130:12         119:20                 court's [14] 5:3 15:10  3 113:17,18 136:24      describes [1] 108:1
conflicting [2] 25:12    contexts [1] 88:13       22:15 30:24 36:1 49: deciding [1] 106:7        describing [2] 86:3,4
 81:18                   continue [3] 22:21 29: 21 54:10 56:22 66:14 decision [19] 13:22 20: description [1] 105:18
confront [1] 102:14       24 81:4                 70:19 76:1,3 94:20     25 27:9 33:9 40:5 46: deserves [1] 13:15
congress    [22]                     [1]
                 5:17 6: continues 49:25          101:14                 7,16 51:6 54:18 67:     designed [3] 65:10,12
 13 27:20 30:7 42:10 continuing 124:1  [1]              [2]
                                                 cover 79:13 98:14       14 96:24 97:4,14,16, 135:19
 43:9 48:13 49:12 51: contradict [1] 55:5        covered [1] 118:9       17 101:15,16 108:22 designee [1] 120:9
 21 63:15,19,19 65:4 contradicted [1] 7:6        crazy [2] 81:11,14      136:20                  despite [2] 69:14,21
 71:5 93:22,23 101:14 contradictory [1] 32:3 create [2] 40:25 94:24 decisionmaker [6] 95: destroy [2] 52:20 93:
                                           Heritage Reporting Corporation
Sheet 3                                                                                          common - destroy

---

<!-- page 142 -->
141
                                         Official - Subject to Final Review
14                       77:9 129:22              drill [2] 60:22 61:15  enormous [1] 124:7         89:3 90:8 101:21
       [1]
deter 115:12             discretion    [14] 9:11,         [1]
                                                  drive 51:5             enough [18] 33:5 41:3, 103:12 105:4 106:17
determination [15] 8:    13 10:14 28:2 44:2,7 driving [1] 52:14           6 57:14,24 58:1 59:       110:3 114:14 115:7
14 10:9,14 11:24 23: 46:18 61:2 64:4 65:9, due [13] 13:7,12 37:1          23 68:22 74:5 88:8        125:5,12 126:1 127:
11,18 44:21 65:4 66: 11,13 72:14 133:19            40:12 56:12 70:1 82: 106:2 107:7 113:15          17 129:23 131:25
2,7 67:18 68:10,21       discretionary [3] 34:8 3 83:10 95:24 98:5        128:16,18 132:2,13        133:22
79:25 89:12              46:7,16                   106:18 108:20,20       135:5                    eventually [2] 77:15
determinations [5] 63: discussed [5] 23:13        duke [1] 87:4          ensuing [1] 26:5           116:5
22 64:17 73:8,10 92: 44:1 48:6 49:6 67:15 during 11:16 23:13 ensure [2] 63:18 64:
                                                             [2]                                   ever-present [1] 69:
9                        discussion [2] 105:23 duties [1] 19:19           14                        15
determine [4] 80:2,3     135:23                   duty [2] 15:25 128:11 enter [1] 67:20            everybody [6] 20:25
128:22 135:19            disinterested [1] 96:6                          entered [1] 68:24          26:16 29:6 35:14 61:
determined [1] 8:2       dismiss [1] 125:22                      E       enterprise [1] 94:10       18,24
determines [1] 49:4      dismissal [1] 23:12      each [2] 25:11 55:5    entire [4] 19:21 23:22 everybody's [1] 99:25
determining 33:2  [1]                [1]
                         disprove 52:19           earlier [2] 30:11 33:8  27:12 135:22             everything [2] 70:9
devious 8:17 [1]         dispute   [19]  5:14 8:2           [1]
                                                  easier 69:16                     [2]
                                                                         entirely 10:4 27:13 108:10
devote [1] 75:24         15:17 26:25 33:25        easy [1] 119:11        entitled [1] 92:11        evidence [28] 20:24
dicta [1] 134:12         38:21 40:25 43:5 46: economist [1] 18:19        entity [7] 6:19 12:4,5     21:19 23:3,7,18 24:
dictate [5] 26:20 54:    14 48:12,19 50:20 51: economists [1] 17:8        65:21 69:9 70:8 116: 16,20,21,23,25 25:10,
25 55:2 57:16 94:21      10 53:1 58:10 59:4,      economy [1] 19:21       24                        16 27:7 56:8 57:11
dictating [2] 26:22,23 15,21 60:11                effect [3] 9:15 13:18  envision [1] 132:25        65:2 66:3 74:15 95:
dictionary [1] 129:6     disputed [4] 6:3 45:3     50:21                 envisioned [2] 132:24 13 96:17 105:7 107:
        [1]
differ 60:4              48:7,14                  effectively 49:24 [1]   135:4                     14,22 121:4,6 126:2
difference [3] 8:13,15 disregard [2] 9:16         effects [1] 50:2       equitable [4] 67:13,17 131:10 132:10
30:17                    133:24                   effectual [2] 43:6,7    68:3,10                  evidentiary [1] 126:6
different [17] 11:17,22 disrupt [1] 13:17         effort [1] 95:15       equities [4] 18:21 19: exactly [10] 18:3 31:
15:7 16:2 44:25 60:      disruptive [1] 13:18     egregious [1] 76:20     15 20:13 89:17            14 34:16 36:16 40:10
20 61:6,12,13 62:2       dissent [2] 53:21 116: either [7] 7:10 43:16    equity [7] 5:1 16:20       41:14 47:20 73:14
102:2,20 104:12 122: 13                            56:11 71:8 81:18 92: 66:20,23 67:3 68:14         102:15 120:18
14 123:19,23 124:2       distinct [4] 6:19 69:9    25 103:9               136:17                   example [11] 7:9 20:
differently [3] 38:3 94: 93:19 114:12             elaborate [1] 129:18   equivalent [2] 109:5       23 32:3 59:23,25 60:
6 124:12                 distinction [1] 91:1     elastic [1] 116:21      110:6                     24 72:16 82:13 119:5
difficult [4] 52:18 80: distinguish [1] 37:23 elected [2] 15:18 29:      erect [2] 92:22 93:4       128:5 134:2
15 81:17 104:9           district [20] 25:9 35:    13                    error [3] 106:19,25       examples [1] 98:19
dig [1] 117:20           15 36:1,4,11 37:3,3      election [1] 94:1       127:7                    excavate [1] 105:13
            [1]
digging 117:15           56:5,22 57:23,25 66: element 103:13    [1]      especially 108:13 excavating [1] 104:8
                                                                                       [1]
direct [3] 38:10 88:4,   13 67:12,18 75:16 76: eligibility [1] 102:6     essence [1] 29:4          excellent [1] 5:11
22                       1,3 81:23 127:24 128: elite [3] 18:12,12 20:8 essential [1] 38:14         except [2] 10:17 43:
direction [2] 32:1 118: 22                        embezzlement [1]       essentially [12] 5:16      14
6                        divide [1] 91:25          134:10                 18:11 29:4 42:5 46:      exception [3] 78:17
directions [1] 44:25     doc [1] 25:8             emergency [11] 12:10 20 65:21 94:23 106:          109:9 118:19
directly 32:2 64:8 document [1] 135:18
            [3]                                    70:15,18 81:12,16 83: 21 112:2 118:18 125: excess [1] 10:4
135:2                    documents [3] 7:7 55: 22 91:6 103:18 108:        22 130:4                 exchange [1] 40:11
director [3] 71:14,16    5 125:9                   25 135:12 136:21      establish    [3] 125:6,10 exclusively [1] 10:20
102:9                    doing [4] 48:13 50:11 emphasize [4] 48:21        126:7                    excuse [1] 21:10
disable [1] 72:3         51:7 52:24                59:22 135:8,13        established [5] 59:20 executed [1] 97:8
disabling [1] 78:14      domestic [1] 98:23       employment [2] 69:25 66:4 94:15 125:3            executive [26] 5:8,16,
              [4]              [9]
disagree 38:2 49:7 done 30:11 52:22                83:12                  126:9                     19,25 6:1,14 27:14
54:6 79:14               68:16 84:8 94:15         end [17] 13:20 79:25   establishment [1] 128: 35:14 36:3 48:11,11
disagreeing [1] 12:14 103:6 113:14 127:2,          84:22,22,25 88:4,18    8                         55:1 57:1,16 64:16
disagreement [8] 32:     20                        89:1 90:2 91:2,3 94:  estate  [1] 8:11           74:25 94:16,19,24 95:
16 44:5 46:2 47:22       doom [2] 17:20 18:8       7 107:16 110:20 116: et [2] 61:3,4               5 96:10 97:2 119:7
49:14,17 64:10 65:24 dovetails [1] 9:25            4 121:22 123:14       ethical [1] 117:14         120:7 122:11 123:10
disagreements [5] 43: down [4] 57:9 60:23         enduring [1] 106:9     evaluate [1] 43:21        executive's [1] 28:2
11,13 45:17,19 124:1 61:15 80:6                   energy [1] 33:1        even [34] 5:21,23 6:2 executor [3] 78:5 101:
             [1]
disaster 119:11                            [1]
                         downstream 50:2 engage 19:6 21:2     [4]         8:3 9:18 11:18 24:21 15,17
discharge [1] 98:17      dragged [1] 114:16        66:8 68:20             26:21 32:22 35:20        executor's [1] 101:16
disclose [1] 113:1       drago [1] 15:2                          [4]
                                                  engaged 14:15 19:       42:23  44:8    69:13,16  exempt [1] 70:9
disclosed [3] 39:19      draw [1] 91:1             2 23:23 134:4          84:22,25 87:2 88:19 exercise [2] 48:9 96:
                                          Heritage Reporting Corporation
Sheet 4                                                                                          destroy - exercise

---

<!-- page 143 -->
142
                                             Official - Subject to Final Review
 10                       fall [1] 99:23               fitness [4] 8:22 10:10     12                       58:14 61:24 79:9 80:
exercised [2] 48:10       fallback [3] 100:6 109:       32:15 128:11             fundamental [3] 14:20 21 81:23 101:20 102:
 123:10                   23 110:13                    five [1] 57:6              51:19 135:25             4 108:4,9 121:2 130:
expect [2] 24:22 121:    familiar [1] 86:2             five-day [1] 28:12        fundamentally [1] 131: 25
 5                       far [5] 59:5 65:13 76: fixed [10] 38:8,13,16             8                        govern [1] 47:20
experience [1] 39:22      16 118:6 124:4                60:25 61:1,3,3,16 62: funding [1] 42:14            government [17] 20:
experienced [1] 39:21    farther [2] 57:3,3             20 63:2                  funneled [1] 80:23        16,18 51:8 56:14 62:
experiment [1] 17:19     fashion [2] 72:15 88:8 fixes [1] 61:23                  further [8] 9:3,19 56:    1 88:23 102:1 108:24
explain [3] 13:13 25:    fast [1] 19:25                flaws [1] 83:16            22,23,23 64:7 121:20 115:20 122:7,16,17
 16 67:11                favor [4] 33:5 111:14 flexibility [1] 72:25              135:3                    123:16 124:16 127:
explanation [1] 55:13     118:15 127:11                flexible [1] 27:2         furthers [2] 64:8,9       19 129:4,23
explicitly [1] 30:7      favorable [3] 20:1 24: flunks [1] 42:24                 fused [1] 66:22           government's [1] 121:
explored [3] 35:19 63:    2 127:18                     follow [1] 45:11          future [5] 50:23 52:14 12
 14 81:22                fear [2] 54:13 56:7           following [1] 60:17        53:16 94:13 114:19       governor [20] 17:8 19:
express [1] 72:2         fed   [16]  69:17,20 71:      follow-ups 37:15[1]       future-justice 72:[1]     2 23:22 29:9,11 36:
expressing [1] 77:10      11,15 93:15,18,24            footnote [2] 62:6,7        20                       13 44:11 57:11 69:14,
expressly [1] 30:21       102:8 116:5 119:1,14 for-cause [13] 27:22                                        20 71:13,15 82:6 98:
extent [3] 21:15 66:25    122:6,18 123:18,23            35:18 37:25 47:15                     G            20 102:8 116:5 118:
 134:22                   124:14                        48:15 50:16 63:16,25 garcia [1] 36:24              24 122:25 130:21
extraordinarily [1] 95:  federal [30] 5:7,13,14, 76:7 102:15 116:10              garland [1] 44:25         131:20
 4                        19,20,24 6:12 7:18            126:3,24                 gather [1] 8:11           governors [15] 14:14,
extraordinary [5] 83:     13:15 14:8 18:25 22: force [1] 7:19                    gave [2] 39:8 72:17       16 19:22 43:8,12 47:
 23,25 103:23 108:24      24 23:21 26:21 36:13 forced 51:17      [1]             gen [1] 133:6             21 51:12,15 52:8,16
 109:14                   47:15,17 48:2 49:6           forfend [1] 116:4         generally [1] 100:12      63:24 64:6 65:23 66:
extrapolating [1] 38:1    52:9,16 63:18 65:19 forget [1] 108:10                  general's [1] 69:22       7 134:23
extreme [1] 113:11        66:10 69:8 71:13 82: formal [3] 25:15,18 41: gerrymander [1] 100: governor's [1] 135:19
extremely [1] 20:14       7 88:9 117:10 134:23 13                                 16                       grant [3] 15:23 17:9
eye [1] 18:9                     [1]
                         fees 5:22                               [2]
                                                       former 52:8,16            gerrymandered [2] 62: 125:22
eyes [1] 66:10           few [1] 110:21                forth [5] 5:22 9:10 33: 10 100:7                    granted [4] 9:13 83:23
                         figure [2] 88:8,22             10 44:6 133:24           gerrymandering        [1] 136:9,13
            F            filed [1] 112:21              fortiori [1] 55:1          100:12                   grave  [1] 135:17
face [3] 27:19 34:4      fill [1] 8:10                 forum [1] 92:14           gets [4] 47:1 73:3 101: great [3] 27:17 88:5
 135:2                   final [11] 13:22 15:23 found [2] 14:15 109:              15 121:18                106:12
fact [13] 7:23 16:4 17: 16:4 24:22 29:18 68: 20                                  getting [5] 20:1 43:19 greater [3] 13:14,14
 25 29:25 34:15 39:19 21 95:16 98:3,4 118: founding [2] 54:11 69: 117:7 118:2 136:7                        114:21
 55:11 64:22 77:25        4 130:14                      12                       gill [1] 134:10           grievous [1] 22:23
 107:23,24 113:22        finally [2] 12:9,11           four [2] 51:14 62:18      gist [1] 108:21           gross [28] 7:10 8:3 39:
 136:14                  financial      [8] 8:5 14:16, framed     [1] 16:18      give   [15] 28:8 43:10    23 40:1 43:23 44:9,
facto [5] 15:16,25 29:    17 44:10 51:13,16 66: framing [1] 22:13                 51:25 59:8 64:4 65:2 16,18 70:5 102:24
 15 85:22 89:25           9 120:4                      frankfurter [1] 72:21      70:11 71:4 72:23,24      109:24 110:2,4 111:8
factors [3] 17:5 20:16 find [8] 35:2 52:20 54: frankly [2] 38:23 39:              73:9 87:17 91:22         113:3,15,19 114:2,6,
 22:2                     1 62:21 111:14,15             11                        101:11 106:20            13 115:20,23 116:8,
facts [17] 8:2 35:20 53: 116:16,17                     fraud [2] 109:17,18       given [5] 25:14,19 58: 17 125:11 126:22
 3,4 55:18,19 74:16      finding [1] 111:11            frauds [1] 134:12          25 74:15 112:20          134:12 135:16
 105:20 116:2 117:13 fine [2] 56:13 119:22             friend [1] 71:9           gives [4] 57:12 59:7      grossly [2] 19:25 39:
 125:3,13 126:8,9,16 finished [1] 28:5                 friendly [6] 16:5,8 28: 106:8 133:18                24
 127:8,17                fire [4] 12:14 46:17           23 29:19 34:10 85:16 giving [1] 6:9                ground [3] 36:5 106:8
factual [16] 7:3 35:18    122:12 131:20                friends [2] 83:19,24      gorsuch [40] 26:9,12      111:6
 38:21 40:3,25 73:7,                  [1]
                         fireable 63:24                front [1] 91:3             27:4 28:3,10,14,17,      grounds [7] 36:11 37:
 10,24 74:14 92:1,2,8 fired [6] 28:5 32:11 64: front-line [10] 76:10,             19 45:10,11 46:10,15, 4 58:19,24 84:5 99:
 111:6,11 112:24 120:     18   96:3    131:17,18        15,15   77:1   83:11 84:  23 47:4 57:8 78:7 79: 12 127:11
 12                      firing [1] 98:24               10 100:23,25 117:17 3 82:25 83:3,6 84:18 guden [1] 134:2
factually [1] 73:17      firm [1] 47:10                 118:3                     85:4,17,25 86:6,9 87: guess [9] 21:10 29:5
failure [1] 109:23       first [16] 5:12 6:20 9:2 ftc [1] 123:19                  9,14,17 90:12,16 96: 33:16 64:2 105:17
fair [2] 72:14 83:15      13:9 23:5 29:17,24           full [8] 72:18,24 73:9     22 97:9,13,15,19,22, 106:2 124:25 130:16
        [1]
fairly 18:8               40:23 61:8 67:9 76:           75:24 92:6 105:13         24 98:1 117:3            131:1
faith [2] 118:24 119:1    16 83:8 85:3,10 111: 118:23 134:22                     gorsuch's [3] 29:23       guidance [1] 27:25
faithful [1] 71:4         11 134:5                     fully [1] 113:1            80:10 90:1               guide [1] 51:1
faithfully [1] 95:21     fit [1] 130:7                 functioning [1] 113:      got [14] 31:18 39:9,10
                                              Heritage Reporting Corporation
Sheet 5                                                                                                     exercise - guide

---

<!-- page 144 -->
143
                                             Official - Subject to Final Review
                         6,13,14 132:8                hypothetically [2] 26: includes [1] 11:12             injuries [1] 20:20
          H              hearing's 74:8[1]             13 47:8                  including 11:11 51: injury [3] 22:23 57:1
                                                                                             [3]
hagerstown 106:  [4]            [1]
                         heart 73:3                   hypotheticals 78:     [3]  14 93:22                    123:20
14 128:7 129:1,11        heartbeat [3] 77:25 78: 18 98:13 129:13                incompetent [1] 12:24 inm [36] 30:21,25 31:5
hagertown [1] 128:7      1,2                                                    inconsequential [1]          42:12 51:22 58:5,15,
half [2] 78:2 120:23     heaven [1] 116:3                           I            52:17                       18 59:3,7 60:7 71:10,
hand [6] 117:10,12       heavily [5] 26:24 59:        idea [6] 33:22 66:13      inconsistent [1] 116:9 21 72:7 76:5,25 77:5
119:15,16 126:5 127: 25 60:1 63:5 134:11               86:24 87:6 107:10        incorrect [1] 62:4           80:21 81:3 99:2,25
9                        held  [11] 9:12,21 14:        131:7                    incredibly [3] 19:19         100:3,4,9 101:9,18
handled [2] 35:13 36: 21 16:10 22:8 29:11, identified [1] 60:24                  95:2 104:8                  102:3 103:4,9 109:5
3                        13  31:4    34:11   41:6                [1]
                                                      identify 58:19            incumbent      [1] 128:11    110:6,11    111:1 117:
hands [1] 119:13         75:17                        ii [2] 6:4,5              indeed [1] 127:6             18 133:13,20
happen [6] 11:17 45: help [3] 78:19,22,23             iii [1] 134:25            independence [14] 13: in-office [4] 75:18 81:
21 50:18 76:11 84:14 helpful [3] 104:8 105: imagine [3] 11:15 77:                4,5 47:17,18 48:2,17 23 133:11,14
106:21                   25 129:2                      12 116:22                 49:5 50:15 63:18 70: inquiry [2] 93:7 114:
happened      [10] 17:16            [1]
                         helping 54:14                imagines 70:12[1]          17,21 117:10 119:1          24
18:13 36:6 64:24 81: helps [3] 54:16,16 78: immediate [2] 13:2 21: 122:6                                    insisted [1] 71:15
24 83:12 95:14 126:      18                            20                       independent [9] 33:14, insistent [1] 65:17
21 127:23 130:25         hence [1] 5:8                impartial [1] 72:19        16,17 48:10 93:15 96: insisting [2] 67:11
happens [4] 82:14 88: herself [4] 7:13 20:2           impeachable [1] 98:        11 116:15,17,18             102:8
25 89:16 106:14          24:3 57:13                    25                       indicate [1] 33:20          insofar [1] 66:1
happy [2] 101:2 114:     high [4] 9:23 49:10          impeached [2] 77:24       indicated [1] 21:14         instance [3] 61:9 83:9
24                       115:14 120:18                 78:1                                  [2]
                                                                                indicates 21:24 27: 111:11
hard [5] 80:19 81:6,10, himself [1] 9:6               impeachment [10] 77: 15                               instead [1] 51:21
15 106:7                 historical [4] 6:19 69: 3 79:5,13,24 80:23             indicted [5] 7:18 55:       institution [7] 64:15
hard-fought [2] 42:14 9,10 93:19                       110:22 117:22 120:        15 75:20,20,23              69:24 93:19 94:3,6
65:15                    historically [1] 72:16        16 130:7 134:21          indictment [1] 75:23         107:20 114:12
hard-pressed [1] 39:4 history [8] 5:2 21:5 43: imperative [1] 119:24 indignity [1] 123:9                    institutions [1] 72:5
harm   [16]  13:2,13 20: 7 50:25 51:13 69:11 implemented 17:               [1]  indisputable 34:14 insufficient [2] 111:9
                                                                                                  [5]
17 21:12 22:3,19 56:     114:12     136:14             21                        46:1 47:3,5 131:9           121:10
14,16 84:1 103:16        hitler [2] 77:11    79:1     importance 48:19  [1]     inefficiency     [3] 30:15  insulated    [1] 116:24
122:4,15,23 123:3,8 hold [3] 36:21 133:25 important [8] 13:4 43: 32:7 42:18                                 insuperable [2] 34:5
124:5                    135:14                        8 44:9 48:17 84:15       ineligibility [5] 71:10      35:4
harmed [2] 13:5 21:17 holding [17] 16:13,19            104:16 118:23,25          101:10 103:5,10 110: insupportable [1] 36:
harmful [1] 89:18        29:2 30:24 31:10 33: impose [1] 42:11                   12                          20
harmless [1] 127:7       6 36:12 37:20,24 41: imposed [1] 128:12                infamous [7] 19:13 40: intend [1] 131:19
harms [2] 20:20 124:8 1 60:8 67:22 76:1,3             imposes [1] 56:25          19,20 78:14 80:11 98: interchangeably [2]
         [1]
hawaii 53:9              82:16,17     136:15          imposition 115:8 [1]       21  100:7                   101:18,24
heads [1] 125:18         home [4] 39:20 108:2 improper [1] 23:23                inferior [1] 15:15          interest [21] 7:23 8:7,
hear [3] 28:22 57:12     112:19 113:2                 improprieties [5] 14:     inflicts [1] 122:14          17 10:21 11:3 17:7,
121:4                    honestly [1] 110:20           16,17 51:13,16 66:9 influence [1] 48:11               12 19:22 20:1,18 23:
heard [6] 10:23 25:25 honor [2] 38:7 77:15            inability [1] 122:24      influenced [1] 93:25         22 24:3 36:12,18 37:
39:1 61:20 103:8               [1]
                         host 53:9                    inadvertence 73:     [1]  influential [2] 42:15        1 82:2,6 119:10 135:
112:13                   hour [2] 115:7 120:23 15                                65:16                       19,21 136:7
hearing [70] 12:7 23:    hours [1] 116:19             inadvertent [20] 7:6,     inform [1] 120:22           interests [1] 52:5
20 26:15,17 27:1,19, house [2] 80:1 117:25 15,17 8:4,16 55:13,                  informal [5] 39:1 41:9, interim [5] 29:15 33:
21 30:1,16,23 31:3,8, however [3] 5:17 22:4 14 73:19 74:1,5,7,17 14 92:10 95:2                               11 67:14 68:11 89:15
13,20 32:10 38:14,17 59:16                             105:21 107:2,3,12,17, information [2] 63:21 interpretation [2] 71:4
40:13 55:25 56:7,9,      humphrey's [4] 78:5           23 126:2 135:17           131:19                      72:2
17 58:7,15,25 59:3,8, 101:15,16,17                    inappropriate [1] 68: informed [3] 101:10             interpreting [1] 71:2
13 61:25 62:9 65:3       hundred [2] 14:6 70:          15                        103:5 110:12               interrupt [1] 18:1
70:23 71:19,22,23,25 16                               incentive [1] 94:24       injunction [21] 14:2,       interstate [1] 110:25
72:3,10,15,19 73:14, hurried [1] 35:16                incentives [1] 73:4        22,24,24 15:8 16:3,        intervention [1] 99:13
24 74:13,21 85:15 92: hypos [7] 77:14 80:5, incentivizes [3] 52:15, 12 21:3 22:7,19 28:                     intervention/resignati
13 95:7,9 104:24 105: 7,16,19 110:16,22                19,25                     21 29:5,18 67:17 68: on [1] 117:18
11 106:18,23 112:24 hypothesize [2] 131:              include [2] 27:18 113: 13,24 70:3 86:1,5              intrusion [1] 57:16
115:6 120:6,10,21        17,18                         4                         136:10,16                  invalid  [1] 45:7
124:20,21 125:5,14,      hypothetical      [2] 53:15,              [2]
                                                      included 72:20            injunctive    [4] 85:8  86: investors    [1] 17:22
25 126:7,20 127:2,5, 16                                112:18                    13 88:9 89:24              invite [1] 112:12
                                              Heritage Reporting Corporation
Sheet 6                                                                                                 hagerstown - invite

---

<!-- page 145 -->
144
                                              Official - Subject to Final Review
invited [1] 67:3           judge [11] 16:5,5,8 18:    kick [1] 10:15             8:3 9:1 13:8 19:25          look [30] 13:9 17:15
invoking [1] 104:20         19 28:23 29:19 34:10 kind       [55]   5:18 6:12 8:  39:14 61:19 77:5 80: 20:13,15,23 26:17 38:
involved [2] 37:22          85:16 88:6 91:9 129: 21 9:24 10:7 17:18              18 95:2 101:17 102:          6 53:22 55:5 59:10,
 134:3                      4                          19:3 23:19 41:23 42: 25 103:7 111:25 122: 22 62:20 72:10,11 73:
iowa [1] 134:9             judges [1] 134:25           17,19 45:1 47:1 52:       18 123:24 125:15             2 81:9 88:7 91:19 94:
ironclad [1] 48:22         judgment [10] 15:24         19 55:14 72:22 73:10 126:23 128:22 134:                19 97:1 101:20 103:
irregular [3] 111:23,       29:19 85:3,5 87:8,8,       74:12 75:9 78:14 79: 12 135:16,16                      18 104:17 105:1 120:
 24 112:10                  21 91:10 96:11 108:        16 81:11 84:16 86:18, leave [2] 89:18 117:21 7 125:24 127:4 132:3,
irrelevant [2] 33:18        16                         22 88:1 91:21 92:24 leaving [1] 22:3                   6 136:1
 112:24                    judicial [26] 8:20 44:5, 93:6,14 94:18 100:5 ledger [1] 124:7                     looked [2] 104:10 131:
irreparable [16] 20:17, 21 45:6 49:1,18 50:            101:10 105:10,12,17 left [5] 15:6 16:15,16             24
 19 21:12 22:23 56:14, 17 52:21 54:3 70:2              115:4,5,13,17 116:25 39:23 58:2                       looking [4] 61:22 93:1
 16,25 84:1 122:4,15, 73:6,7 75:4,5,8,13 79: 118:5 121:8 122:15, legal [19] 7:1 41:8,10                       128:2 133:23
 23 123:2,7,20 124:5, 17,24 91:18 92:14,25 21 123:15 125:2 126: 56:24 73:12,21 74:20 looks [2] 94:13 101:
 7                          94:13 113:23,24 114: 6 127:17 130:2 131:             92:1,15,17 105:19,23 21
irresistible [1] 119:12 21 135:24                      14,15 132:23 134:4,       114:1 115:17 120:11, loose [1] 19:25
isn't [16] 5:5,25 56:7     judicially [2] 9:14 115: 24                           12,17,25 126:20             lose [4] 90:22,22 123:
 58:18 60:18,18 74:17 11                              kinds [4] 21:22 99:9      legislative [2] 51:23         2 125:18
 84:19 85:25 93:11         judiciary [1] 88:7          120:14 129:20             66:7                        lot [14] 47:9 56:3 66:
 107:17 125:14 127:        jump [1] 82:15             klan [1] 77:11            lender [1] 7:21               15 72:25 73:21 80:15
 19 131:1 132:23 134: juncture [4] 103:1,8,           known [1] 11:19           less [4] 73:5 105:4           83:18 87:23 91:12
 14                         20 121:11                 knows [2] 27:20 30:7       118:23 133:19                93:1 94:10 102:20
issue   [22]                               [5]
              5:20 6:1 11: jurisdiction 12:5                                    letter [11] 7:12 25:8         103:25 116:8
 5,9 14:18 16:11 19:        16:11,19 22:9 67:20                     L            28:16 38:22,22,24 39: loudermill [7] 11:7 26:
 18 22:9 39:17 40:3,5 jurisprudence [3] 46: label [2] 116:1,8                    5,7 40:24 112:17 131: 25 27:2 28:6 36:25
 85:5 87:22 89:16 90: 8 49:21 54:10                   lacked [1] 67:19           22                           37:4 55:8
 15 95:11,17 96:18 98: justice's [2] 41:21 42: language [4] 9:2,4 23: level [6] 33:19,20 40:2, love [2] 84:11 129:1
 9 103:9 105:8 113:17 7                                12 135:3                  5 120:13 128:23             low [3] 24:7 49:3,9
          [1]
issued 83:15                           [1]
                           justifying 26:10                                          [2]
                                                      last 9:21 13:25 41: life 37:22 39:13
                                                           [5]                                               lower [11] 13:9 37:10
issues [12] 12:12 13:6,                                22 42:21 51:14           light  [2] 63:12     127:18   59:10 69:15 81:21
 9,21 31:24 37:9 60:3                 K                      [4]
                                                      later 15:2 16:25 75:      likelihood      [10] 84:2,3,  88:9,23   106:1 114:17,
 84:16 105:19,24 106: kagan [29] 28:18 29:             20 96:3                   5 85:11,12 86:14 90: 20 119:10
 5 136:25                   22 30:3,9,13 31:1,6,9 laughter [5] 78:9 87:          5,7,18 103:12               lowered [2] 120:1,2
issuing [2] 15:7 16:2       32:5 41:19,20 42:16        13 103:21 111:18,21 likely [5] 11:19 45:6             lying [1] 121:3
       [6]
itself 9:4,16,24 35: 43:14 44:12,15 45:8 law [55] 13:12 27:15                    50:7 114:18 136:2
 25 58:14 94:2              71:19 79:11 81:2,14        31:21,22,25 32:3 39: limit [2] 65:10,13                            M
                            91:15,18 93:8 102:12 4 40:17 44:23,24 59:           limited    [1] 133:14        made    [15] 8:6 10:9 23:
              J             115:18,19,25 117:1         1,6,9,14,24 60:2,12, limiting [1] 94:2                 10 24:17 49:9 54:17
jackson [54] 17:2 21:6, 121:8                          19 66:17,18,20 67:6 line [3] 9:8 59:13 104: 68:11 74:24 89:11
 9 22:10,14 23:3,7,14, kagan's [2] 45:12 58:           76:12 78:11,16 80:3       19                           97:7 103:24 112:23
 17,25 24:4,9,14 25:5, 12                              84:16 100:14,20 104: listening [1] 27:6                120:15 124:22 127:
 14,21,23 26:2 35:5,8 katsas [1] 129:5                 11,21,25 105:1 106: literally [1] 101:14               25
 60:16,17 62:11,16,19, kavanaugh          [33] 47:12, 13,15 110:14,15,17, litigated [4] 22:5 67:6 madison [1] 34:7
 25 63:8,11 64:12 65: 13,24 48:3,16,25 49: 18 113:21 116:4 119: 89:2,16                                      maintain [1] 29:24
 25 66:12 67:25 68:4, 15 50:1,13,25 52:2               22 121:6 126:8 127: litigating [1] 56:4               malfeasance [2] 12:
 25 88:25 90:10,14,17 53:19 54:12 55:10,17, 10 128:3,19 129:2,4, litigation [1] 26:6                          25 42:18
 103:11 124:18,19           24 63:14 75:14 79:9, 6 131:2,4 132:23,24 little [13] 7:2 21:11 28: management [1] 120:
 126:10,13,17 127:15, 12,18 80:9,14,22 94: 133:24                                22 94:25 95:1 98:7           4
 21 129:12 130:14,24 12 99:20 116:12 117: laws [1] 70:11                         103:20 111:23 119:          mandamus [54] 15:15,
 131:4,12,16 132:11         4,5 120:5 121:7,25        lawyer [6] 27:8 38:24      22 121:20 123:13             24 16:4,8 28:21 29:3,
 133:2                      122:5                      39:5,18 109:16 124:       124:14 130:17                6,14,18,20 34:2,3,4,6,
january [2] 50:8,9         kavanaugh's [1] 126:        23                       live [1] 130:25               8,10,13,22,25 35:1,2,
jaundiced [1] 18:9          19                        layer [1] 9:19            lo [1] 124:12                 3 41:25 42:1 43:1 45:
jittery [1] 17:22          keep [8] 16:3 34:12        laying [1] 35:17          loans [1] 7:19                13,21,25 46:3,6,19
job [5] 39:9,10 75:24       60:12 89:25 93:24         lead [1] 53:2             logically [2] 11:21           66:15,17 67:11 84:19,
 76:18 128:17               95:16 99:21 115:9                  [3]
                                                      leads 52:25 53:19          114:1                        19 85:2,6,8,13,16 86:
john [1] 133:6             keeping [5] 12:19 13:       77:17                    long [8] 21:22 27:7 48: 1,8,11,15,18,23,25
      [1]
joke 75:9                   1 15:6 118:15 122:13 leap 85:1  [1]                  8 76:19 87:12 104:21 87:6 88:3 89:7,8 90:
joseph [1] 69:13           key [3] 8:5 38:4 64:11 least [24] 6:11 7:10,18 114:10 119:11                       3,4
                                               Heritage Reporting Corporation
Sheet 7                                                                                                  invited - mandamus

---

<!-- page 146 -->
145
                                         Official - Subject to Final Review
manhattan [1] 71:16     meet [1] 35:4          moment [5] 22:17 26: 38:15 63:10 72:23         14,17 39:4,5 40:13
manner [2] 35:16 36:4   meeting [3] 28:4 43:   14 80:18 87:10 125:1 80:11 93:6 108:10         58:7,14,25 59:3,3,8,
manners [3] 59:25 60:   17 63:6                moments [1] 110:21     112:2 116:19 122:6      12 61:19,25 62:9 72:
21 61:14                members [2] 29:7,7     monetary [3] 48:9 120: 126:16                  8,18 74:12 95:11 96:
manning [1] 61:14       mention [2] 71:21,23   4 124:11               needs [4] 63:22 75:4,   16 104:24 105:10
many [8] 22:4 30:12,    mentioned [2] 28:20, money [2] 69:16 119:     5 98:7                  106:18,22 112:11,11,
12 48:20 64:5 71:22     23                     11                     neglect [3] 30:15 32:7 19 115:6 130:16,19,
124:13 136:25           mere [4] 113:4,6,14    month [3] 27:21 30:10 42:18                    25 131:2,7,9,15,25
     [4]
map 32:2 60:3,19        128:18                 71:25                  negligence [33] 7:11    132:13,19,23,23,25
62:22                   merges [1] 20:18       months [4] 22:4 26:5   8:3 39:23 40:1 43:24 notified [1] 25:20
marbury [7] 9:16,17     merits [15] 19:9 20:14 55:12 82:20            44:9,16,18 70:5 102: notion [3] 46:12 59:17
34:7 46:5,5,25 47:1     84:2,4 90:6,7,15,18, morning [1] 106:5        24 109:24 110:2,4       134:15
market [2] 5:15 17:17 20,20 103:13 105:13 morrison [2] 53:21          111:9 113:3,3,4,7,14, novo [1] 44:8
markets [6] 23:1 118: 121:19 123:1 135:10 116:13                      16,19,19 114:2,4,7,     nowhere [1] 63:6
                                   [3]
25 119:25 120:2 124: message 20:5 136: mortgage 25:11      [9]        14 115:20,23 116:9, number [5] 13:3,16 34:
14 136:4                3,4                    35:20,24 39:17,25      18 125:11 126:22        5 48:6 91:5
market's [1] 18:4       met [1] 65:22          109:17,18 135:18       135:16
martin [3] 9:8 10:1 53: metes [2] 92:19 101:6 136:7                   negligent [3] 12:24 20:            O
7                       michigan [3] 39:8,14   most [16] 13:10,10 43: 1 39:24                 obstacles [1] 34:5
maryland [1] 128:6      59:24                  8 49:13 84:15 107:11 neighbors [1] 115:15 obtain [1] 24:2
masochist [1] 80:20     middle [2] 65:22 89:   115:12,12 116:20       neither [3] 30:18 69:   obviate [2] 93:6 112:2
          [1]
material 8:1            10                     124:9 126:2 127:17,    18 135:25               obviously [11] 7:11,22
materials [1] 111:7     might [14] 45:18,24    18 132:16,18,18        never [10] 16:15,16 26: 9:15 20:9 26:25 34:
matter [8] 8:18 35:13   46:3,4 49:17 74:13     motion [2] 89:20 125: 7 38:23,25 41:12 48: 23 73:21 79:14 91:8
74:9 75:12 127:8        75:21 83:16 116:5      22                     22 112:20,21 136:12 103:3 120:21
131:11 132:16 133:1 121:21 129:14 130:8 motivations [1] 53:14 new [5] 38:25 39:10,            offense [1] 127:19
maximizes [1] 121:18 132:4,4                   mott [2] 9:9 53:7      13 83:18 134:3          offenses [3] 98:25 99:
maximum [1] 72:22       military [1] 118:21    move [3] 38:18 39:6,   news [2] 131:24,25      2,5
mean [84] 8:8 28:5 31: million [1] 81:15       10                     next [4] 17:17 22:3 41: offered [1] 115:23
6,19 36:6 42:3 49:4     mind [4] 16:3 34:12    ms [14] 14:11 21:17,   25 129:25               office [35] 10:11 11:6,
52:9,23 53:20 56:3      60:12 129:8            20 23:20 25:1,14 27: nexus [3] 11:13 19:17 16 12:25 13:1,16 16:
57:4,13 59:10,12,22 minimal [1] 27:2           5 32:11 38:22 39:7,    44:10                   13,24 19:2,4 21:25
60:9,12,21 72:15,21 minimum [5] 95:5,6,9 18 57:10 68:6 124:22 nixon [1] 79:23                 22:20,25 36:7 38:13
74:2 75:9 78:4 79:17 102:22 108:22             much [12] 11:12 27:7 nken [1] 20:15            40:16 43:17 64:23
80:2,6 84:4 85:15 86: ministerial [2] 15:25    31:16 41:25 57:3 73: nlra [2] 27:21 71:24      75:20 77:9 78:15 81:
16 89:21 90:25 91:19 46:22                     16 74:9 95:11 106:19 noah [1] 129:8            25 82:3 85:23 98:16,
93:16,22 94:8,8 95:3 mirror [1] 58:3           107:3,10 120:24        nominee [1] 130:5       17,20 99:9 113:13,13
96:4,6,20 97:1 98:2,5, misbehavior [1] 19:7 murder [1] 19:11          nondisclosure [1] 76: 117:15 122:14 124:2
6 99:10,14,16 100:1, misconduct [14] 24:       must [7] 58:20,24 75:  19                      134:5,13
3,8,11 101:1 102:19, 18 25:2 36:19 70:5        17 77:13 96:2 102:4 none [4] 12:21 55:17       office-holder [3] 75:
21,23 103:3,13,17,19 76:20 102:23 109:20, 128:10                      75:11 123:5             19 76:17 77:10
104:2,10 107:11 108: 21 133:11,14 134:1, myers [2] 33:9 119:5         non-effectual [2] 43:3, officer [19] 14:3,8,23
12 115:6,15,20,21       16,20 135:15                                  5                       15:2 16:1,12 19:1 20:
116:12,21 117:6 118: misdemeanors [2] 98:                 N           nonexistent [2] 5:1 21: 21 29:15 32:20 34:20
9 121:4 124:9 125:19, 21 120:19                narrow [2] 40:23 73:   4                       67:24 71:14 85:23
20 128:10 129:5,13, misrepresentation [1] 11                          nor [2] 69:19 136:1     89:25 133:20 134:4
19 130:18,24 131:5      135:18                 national [1] 102:9     normally [1] 126:6      135:21 136:11
132:5                                [1]
                        misspoke 15:13         nation's [2] 5:2 136:  north [1] 114:13        officers [6] 13:19 15:
meaning [7] 12:13 46: mistake [19] 7:6 8:4,5, 14                      notation [5] 7:15,17    17 16:21 34:2 66:19
24 71:7 101:22 102:1 16 39:25 40:2 73:20 natural [1] 17:18            55:14,15 135:17         91:13
113:17 129:7            74:1,5,7,17 105:21     nature [4] 14:9 19:13 note [1] 61:25           official [2] 77:24 118:
meaningful [2] 92:23    107:2,7,12,17,23 125: 107:19 120:21           nothing [10] 16:25 27: 15
115:17                  25 126:3               nazi [1] 98:19         25 52:22 64:22 76:6 officials [3] 72:17 88:
means [8] 12:8 36:22 mistaken [2] 31:10 72: near [1] 63:6             81:24 94:11 99:7        10,23
59:6 72:7 94:9 102:3, 1                        necessarily [5] 31:18  111:8 116:15            official's [1] 74:6
16 103:4                mistakes [1] 127:12    51:6 54:21 96:20 98: notice [57] 10:22 12:6 often [1] 118:1
meant [1] 71:10         mixed [1] 113:21       25                     20:4 26:15,16 27:1,     okay [13] 28:10 55:10
media [5] 35:23 39:3    moderating [1] 132:                 [1]
                                               necessary 42:20        19,20   29:25 30:16,23  57:4 62:25 73:18 86:
55:4 130:19 131:23      22                     need [13] 31:12 32:8,9 31:3,8,12,20 32:9 38: 6 87:18 97:22 98:1
                                          Heritage Reporting Corporation
Sheet 8                                                                                        manhattan - okay

---

<!-- page 147 -->
146
                                          Official - Subject to Final Review
99:3,18 102:11 108:3    ordinary [5] 19:23 20:    87:24 95:19 104:15        89:25 134:5             posture [7] 18:21 19:8,
old [7] 31:15 52:17 59: 6,11 55:15 66:11          105:9 116:1 118:14        places 9:7[1]           14 21:14 86:18 102:
17 60:14 63:7 72:4,6 original [4] 71:7 86:22 129:9 131:2                    plain [6] 6:7 9:4 47:20 13 117:8
omission [2] 108:8,11 101:22 102:1                particularly [1] 107:18   63:10,12 65:14          potentially [1] 74:6
once [5] 8:23 10:9 16: originalist [1] 20:24      party [3] 20:17 41:4,     plainly [3] 62:4 67:19, power [13] 5:16 6:10,
5 19:9 51:1             other [46] 7:7 8:13 22: 13                          19                      14 22:15,16 33:11 65:
one [58] 5:12 7:3 11:   22 24:20 25:12 29:7 passed [1] 71:25                played [1] 19:25        5 66:14 68:23 94:2
15 17:15 24:22 27:21 31:24 33:18 34:12            past [1] 79:12            please [4] 24:11 28:23 97:4 119:7 123:10
31:21,25 33:18 34:6, 45:2 52:5,13 55:6,13 path [1] 111:25                   69:7 132:9              powerful [2] 19:19,20
25 39:3 41:15,22 44: 59:16 65:20 72:4,5           pattern [1] 76:20         plenty [2] 15:5 26:5    powers [5] 5:19 6:1
25 45:18 49:12,20 51: 73:17 75:25 83:20,24 paul [1] 69:4                    plus [6] 71:10 101:9    10:5 42:4 68:3
24 52:1 54:24 56:11, 91:13 92:21 93:10            pause [1] 67:4            103:4 110:11,25 130: practical [1] 132:16
14,15 58:12 65:18 66: 106:4 107:5 110:7           payne [1] 9:10            10                      practice [2] 81:5 111:
12 67:18 72:2,15 73: 111:15 117:11,14,22 peckham [1] 104:20                 point [29] 5:6 10:12    3
25 75:19 81:22 86:3, 118:6,18 123:21 124: pendency [1] 21:18                13:25 14:21 26:18       precedent [5] 50:3 74:
17 89:11 95:10 100:5, 6,9,10,15 125:4 126: pending [1] 68:21                27:25 31:21 38:8 40: 11 81:18,19,20
11,19 102:21 104:18 5,24 127:9 128:13             people [14] 7:17 13:15    24 41:11,15,16 49:8, predict [1] 50:22
106:12,16 107:25        130:8 136:1               54:17 55:15 62:21         8,9 51:19 60:6,18 68: predicting [1] 18:3
108:8 109:15,25 117: others [3] 54:23 70:22 64:17 96:9 99:20                22 79:16 90:5 93:14, predictions [2] 17:20
9 118:10 119:8,19       99:15                     117:12,19 120:17          16 104:1 108:9 118:3 18:8
121:3,9 125:22 127: otherwise [1] 37:22           123:11 132:18 136:5       133:13 135:7 136:8      prejudge [1] 132:25
12 129:18,21            ought [4] 18:6 19:17      per [1] 82:12             pointed 34:11 40:7 prejudged [2] 96:18
                                                                                        [3]
ones [1] 60:24          20:13 57:17               perception [2] 22:24      42:13                   131:10
one's [1] 112:22        out [17] 8:10 20:6 27:    23:8                      pointing [2] 21:23 125: prejudging [2] 95:16
ongoing [1] 26:6        17 34:11 35:17 42:13 perfect [1] 118:16             9                       98:9
only [23] 11:4,8 27:2   61:12 68:22 80:4 87: perfectly [3] 82:9,16          points [2] 27:17 51:9 prelim [1] 86:8
36:17 37:9,20 40:15, 4 88:8,22 104:17 118: 112:4                            policing [1] 44:4       preliminary [33] 14:2,
19 42:5 60:6,25 65:     10 119:14 129:7 135: perform [1] 128:11             policy   [28]  12:15,21 22,23,24 15:7 16:3,7,
25 66:1 67:2,12 69:     10                        performance [1] 128:      32:16 42:11 43:11,12, 11 21:3 22:7 28:21
24 77:12 92:21 107:9 outcome [1] 32:5             17                        19 44:5,18 45:17,19     29:5,17,20 34:10 67:
109:12 129:2,20 134: outer [3] 8:21 44:3          perhaps [5] 66:8 83:      46:2,17 47:22 48:9      17 68:13,23 70:2,18
21                      135:24                    11 86:16 89:3 121:15      49:14,17 50:24 52:11 74:24 85:8,15,20,22
open [2] 5:15 45:20     outside [3] 46:18 54: perimeter [1] 44:4            53:25 63:21 64:10       86:1,5,8,12 89:23
opening [1] 96:1        17 123:12                 perimeters [1] 8:21       65:24 93:10,10 120:4 103:24 136:9,16
          [1]
operate 91:23                [2]
                        oval 43:17 115:7          period [2] 38:13,16       123:25 124:11           pre-office [20] 11:12,
              [1]
operating 122:9         over  [11]  5:17 6:13 16: permanent [1] 18:25                    [3]
                                                                            political 116:25        13,17,21 13:1 36:19
operations [1] 5:15     19 19:20 32:2 60:3,       permission [1] 39:8       119:8 120:1             40:18 75:21 76:8 98:
opinion [10] 10:20 18: 19 62:22 70:16 94:3 permit [1] 40:18                 politically [1] 134:8   14 113:7 114:4,7 129:
12,12 20:8 36:24 59: 122:18                       permitted [2] 15:2 76:    pop [1] 129:7           20,21 133:11,25 134:
10,11 82:13 88:6 103: own [5] 12:13 19:6 32: 18                             ported [1] 47:1         10,15,20
19                      1 49:19 119:13            permutations [1] 61:6     pose [2] 53:16 111:2    prepared [1] 83:9
            [1]
opinions 33:9                                     person [14] 24:19 36:            [1]
                                                                            posit 75:10             present [6] 24:19,20
opportunities 26:5[1]                P            7 37:18 42:25 43:16       posited 57:8[1]         47:13 74:14 107:14
opportunity [18] 10:    p.m [1] 132:9             54:1 65:2 66:24,25        position [27] 8:12 19:  112:16
23 24:19 25:15,19,25 packed [2] 5:18 6:12         67:5 75:22 77:9 81:       19 21:18,21 32:6 36: presentation [1] 121:
30:1 61:19 72:8,18      page [1] 62:5             24 134:8                  13 37:25 47:10 49:1     5
74:13,14 95:13 96:17 pages [1] 9:16               personal [1] 26:7         51:8 52:9 53:5 56:20 presented [4] 23:19
105:11 106:22 107:      panel [1] 36:17           perspective [3] 7:25      57:7,21 77:1,8,17,19, 24:25 109:13 112:16
13 112:12 115:6                 [1]
                        paper 52:21               43:13 121:24              23 89:19 92:8 100:24 preserve [5] 48:1 70:3
opposed [1] 109:20      papers [2] 8:10 39:18 persuade [1] 124:4            103:4 118:4,5 134:7     85:20,22 89:24
opposite [3] 34:17 59: paperwork [1] 35:25        phrase [2] 30:21 128:     position's [1] 117:17   presidential [3] 65:9,
9 118:17                paragraphs [1] 38:4       9                         posits [1] 68:4         19 115:1
optionality [1] 103:25 part [10] 14:10 18:22      pick [5] 55:23 64:22      possible [1] 118:19     presidents [3] 50:23
options [1] 92:24       30:23 60:5 69:10 87: 76:12,13 110:14                post [6] 25:6,24 28:16 115:9,12
oral [1] 69:4           5 95:18 96:10 125:15 picked [1] 71:12               35:23 55:4 131:7        president's [25] 7:9
order [13] 7:9 23:12    132:20                    picture [2] 50:4 116:                 [1]
                                                                            posting 130:19          10:14 11:24 13:13
25:4,6,9 32:24 33:22 particular [16] 14:19        14                        post-loper [1] 92:16    20:20 23:9 33:11 42:
34:19 56:22 59:18       15:11 61:22 63:20         piece   [2] 52:21 116:6   post-office [1] 11:14   4 49:23 50:6 53:12
67:23 126:23 134:5      71:11 74:16,16 86:23 place [4] 15:6 53:22           posts [1] 57:4          61:2 65:10,13 66:2
                                           Heritage Reporting Corporation
Sheet 9                                                                                             okay - president's

---

<!-- page 148 -->
147
                                         Official - Subject to Final Review
68:19 73:3 74:4 89:     94:18 95:24 98:5        10 116:1 131:5        read [7] 26:14 30:24        redressability [4] 88:
12 97:4 115:8 119:6, 106:18 107:1 108:20, puts 132:17[1]               38:3 63:4 64:21 66:         18,21 90:9 91:3
15,16 120:8             20,23 109:23 119:15 putting [3] 53:23,25       16 127:22                  reduce [3] 56:15 64:
pressure [2] 63:23      121:11 129:23 130:      127:4                 reading [5] 64:3 87:25       21 69:23
120:1                   13                                             110:11 113:6 126:1         reenacted [1] 27:22
pressured [1] 64:15     professor [3] 61:14               Q           reagan [8] 30:20 31:        reference [1] 72:3
pressures [1] 116:25    84:24,24               qualification [1] 9:3   19 37:16,19 38:3,4,        referring [2] 15:10 33:
presumably [1] 59:2     prohibition [1] 10:6   qualified [1] 14:13     16 59:11                    7
presumption [3] 49:     properly [1] 99:6      qualify [1] 113:7      real [5] 8:11 52:7 70:      reflected [2] 20:8 23:
22 53:11 54:8           property [7] 10:21 11: quantifying [1] 18:18   14 74:10 115:3              11
pre-tenure [2] 128:14, 3 36:12,18 37:1 82:2, quasi-private [2] 6:18 really [33] 8:1 17:20         reflecting [1] 47:20
15                      5                       70:8                   19:12 21:13 32:10          reflection [1] 18:12
pretext [5] 93:1,7 114: proposition [2] 37:17 question [50] 5:11 10: 43:19 50:10 52:12,14         regard [2] 65:11 119:3
22,23,25                62:8                    18 17:4 20:7 21:15     54:4 56:16 59:21 60:       regularity [2] 49:22
pretty [11] 41:25 43:2 protect [2] 49:12 66:4 22:18 27:16 29:24        18,22 87:4,20 88:15         53:11
51:1 59:5 91:16 101: protecting [1] 64:9        36:7 38:19 39:24 40: 95:11 98:24 100:15,          regulations [1] 5:20
8 109:14 114:4,6 119: protection [5] 43:8,10 4 41:21,22 42:7,21        18 101:9 108:12 109:       regulators [1] 7:18
17 130:11               49:11 64:11 133:19      44:1 45:13 53:15 55:   7 111:2,19 114:15          reinstate [6] 32:20 33:
prevail [6] 33:14 35:3 protections [1] 134:     24 56:19,21 60:5 61: 115:22 117:19 118:4           25 34:1 42:8,25 66:
59:19 109:4,11 110:9 24                         9 66:13 67:9 68:4 75: 124:8,15 134:14              18
prevailing [1] 34:5     protective [1] 95:1     3,6,15 84:19 87:20    realm [1] 71:1              reinstated [2] 16:17
         [2]                        [7]
prevent 66:24 68:7 protects 47:16,19, 88:2 89:4,6,14 90:2             real-world [2] 50:2,21       33:23
              [1]
prevented 68:12         21 54:14 65:23 66:1, 91:20,21 92:15,15        rearview [1] 58:3           reinstatement [2] 13:
prevents [1] 71:12      1                       100:20 102:15 112:    reason [19] 32:17 33:        19 32:25
previous [1] 76:18      proven [4] 43:6 78:3    14 113:2,21 114:1      5 34:4 35:12 37:21         reinstating [2] 15:4
principal [6] 7:21,24   81:5 128:20             126:20 130:14 133:     47:23 63:16,17 70:7,        136:11
14:3 20:21 135:20       provide [17] 12:11 27: 10                      16 80:17 87:5 88:12        reject [1] 31:15
136:11                  20,25 29:3 30:8 32:8, questions [20] 5:3 7:2 89:8 106:2 124:11,13         relate [3] 10:10 75:17
principle [1] 57:19     9,12 56:11 57:17 58: 10:17 40:6 45:12 55: 132:20 135:6                     98:17
private [4] 5:17 65:21 6 94:25 95:6,13 96:      18 58:12 70:19 73:22, reasonable [2] 82:9         related [8] 17:4 21:24
79:13 80:4              17 102:5 134:22         23 81:10,16,17 92:1, 112:4                         23:4,8,20 60:23 125:
probably [12] 27:11     provided [10] 28:12     2,2,17 104:9,14 124: reasoning [1] 31:9            13 134:18
71:10,12 77:6 91:2      31:20 45:5 56:21 57: 20                       reasons [15] 22:22 29:      relates [1] 32:14
119:20 121:17,18,22 21,22 61:1 74:25 92: quick [1] 84:6                17 30:19 37:2 43:20        relatively [1] 93:4
129:24 130:7 132:15 5 94:18                    quickly [3] 13:6 60:18 44:1 46:17 48:6,20          released [1] 7:12
probe [1] 53:12         provides [5] 43:7 57:   127:21                 52:11 54:22 75:6 81:       relied [6] 10:20 36:17,
problem [7] 78:3 81:5 10 66:6 73:5 133:19 quintessential [1] 6:        10 135:13 136:18            25 37:3 59:25 129:5
88:10,21 91:3 95:18 provision [6] 38:1 47: 14                         rebuttal [2] 133:5,6        relief [13] 29:4 34:14
111:2                   15 49:24 63:16 94:5 quite [8] 8:4 11:20 14: recall [1] 35:25               83:24 85:8,20,22,24
problematic [2] 123:    116:10                  18 38:23 51:20 57:24 recently [1] 65:17            86:13 88:9,11,22 89:
16 129:14               prudent [1] 120:3       58:1 106:3            recession [1] 17:10          24 106:9
             [1]
problems 84:14          public   [16] 16:12,20 quo 34:23 70:3 85: recognition [3] 14:13
                                                    [4]                                           relies [1] 63:5
               [5]
procedural 70:1,        17:7,11 20:18 21:16, 20 89:24                  33:8 69:21                 relitigate [1] 129:25
14 108:8,10 115:3       21 22:24 23:8 25:20 quoting [1] 38:11         recognize [4] 15:16,        reluctant [1] 26:20
procedure [1] 50:17     67:24 71:7 78:15                               25 29:14 30:16             rely [7] 11:20 26:24
procedures [6] 26:21, 101:22 102:1 118:25                 R           recognized [4] 30:21         29:1 36:18 60:1,22
23 27:3 54:25 55:2      public's [2] 13:10,14  rainbow [1] 90:2        38:10 69:25 133:17          134:11
57:17                   pull [1] 100:6         range [1] 105:23       recognizes [1] 69:17        relying [2] 37:17 59:4
proceeding [8] 25:16, pure [1] 123:10          rate [2] 7:23 8:17     recognizing [2] 33:11       remain [3] 19:2 21:17
19 39:1 41:9,9,10 95: purely [1] 114:1         rates [13] 8:7 19:22    68:19                       22:19
20 120:17               purporting [1] 67:23    20:1 23:22 24:3 69:   recollection   [1] 36:23    remaining [1] 117:15
proceeds [1] 85:24      purpose [5] 47:18,25    15 94:1 119:10,25     recommend      [1] 96:21    remand [1] 127:14
process [41] 13:12 37: 48:4 50:15 64:1          120:2 135:20,22 136:  recommendation        [1]   remedial [1] 41:22
1 40:13 49:2 52:22      purposes [5] 47:14 63: 7                       97:7                       remedy [20] 12:8 22:6
54:5,13,14,16,19,21, 13 112:25 122:8 123: rather [1] 98:21            reconcile [1] 65:8           28:20 33:25 34:1,22
22 55:4 56:2,12,20      24                     rational [1] 70:7      reconsider [1] 83:17         41:24 42:5 49:2 50:
57:22,22 58:6 70:1,     purse [1] 94:3                     [1]
                                               rationale 37:5         record [8] 7:7 35:21,        17 66:16,17 86:23 89:
10 73:4 74:25 80:24 put [9] 8:19 52:20 56: re [1] 134:2                24 36:1,1 70:18 94:         6 90:19,23 91:2 130:
82:3 83:10 92:5,13      9 63:15 65:6 85:4 87:                          15 103:24                   8 134:21 136:9
                                          Heritage Reporting Corporation
Sheet 10                                                                                     president's - remedy

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148
                                         Official - Subject to Final Review
remember [1] 41:16       requirements [2] 5:21    52:21 54:3 59:24 61: 15                          23
remotely [1] 23:13      115:17                    10 70:2,24 72:11 73: saying [18] 21:1 26:3 send [6] 131:21 135:
removability [4] 61:16 requires [2] 27:2 96:      1,6,10,12 75:4,5,8,13 32:1 42:5,23 43:18         11 136:19,20,20,24
 64:6 67:7 89:4         16                        79:17,24 91:19 92:25 52:4 59:18 62:1 68:        sending [2] 83:7 106:
removable [7] 6:8 67: reserve [25] 5:7,13,19,     94:13 113:23,24 135: 15 79:1,18 86:7 98:9 3
 1 68:9 99:2,5 123:11 20,21,24 6:12 13:15         25                       102:2 107:1 132:1      sends [2] 136:3,4
 127:19                 14:8 22:24 23:21 36:     reviewable [4] 9:14       134:19                 sense [8] 13:10 33:17
removal [55] 5:9 6:4,   13 47:16,17 48:2 49:      11:25 65:1 66:3         says  [30] 6:8 7:9 20:   49:10 54:13,14 70:6
 10,22 7:9 16:20 25:3, 6 52:9,16 63:18 65:       reviewed [1] 115:11       16 28:6 39:7 45:19      102:4 119:20
 5,9 28:16 31:3 35:19 20 69:8 82:7 108:16        reviewing [2] 10:13       46:5,17 57:25 60:2,4 sensitive [1] 63:21
 38:12 42:4 43:10,11    117:11 134:23             61:8                     61:14,14,24 67:1 79: sent [1] 135:9
 45:7 47:15,22 48:15, reserve's [3] 5:15 19:     rid [2] 43:19 99:8        23 84:25 88:7 94:9,9 sentence [2] 42:1 73:
 23 49:14 50:10,16 58: 1 66:10                   risen [1] 40:2            104:19,21 105:8 106: 25
 20,24 60:23,25 61:2 residence [2] 7:22,24       rises [2] 40:20 120:13 17 112:18 125:10,10 separate [1] 66:21
 63:25 64:10 65:22,23 resign [5] 76:18 78:2      risk [5] 18:14,18,20,24, 129:24 135:1,3          separated [1] 113:12
 66:24 69:18,23 70:1, 96:2,3 98:10                24                             [1]
                                                                          scale 95:4              serendipitously [1]
 2,11,13,22 71:17 74: resigned [2] 14:17 51:     road [1] 80:7            scalia [2] 101:21 116: 72:20
 12,18 75:22 76:7,22    16                       roberts [31] 6:15,25 8: 14                       series [2] 61:5 133:25
 78:13 96:24 97:3 99: resist [6] 86:24 100:       8 24:8,11 32:18 33:     scalia's [1] 53:21      serious [6] 19:7 68:2
 13 106:21 116:5 122: 11 106:7 107:10 108:        15 34:18 35:6,9 37:     scenario [1] 114:24      107:7 117:14 128:16
 8 126:3                13 131:6                  12 41:19 45:9 47:11 schmed [1] 123:18            130:3
removals [6] 13:19 21: resistance [1] 111:25      55:21 60:15 69:1 73: scope [3] 73:9 92:12       service [1] 70:10
 2 33:12 68:20 91:11 resisted [1] 87:5            13 74:19 105:15 106: 120:22                     serving [1] 71:13
 114:18                resisting [2] 81:6 132:    24 107:21 108:3 109: screenshots [1] 35:23 set [3] 19:22 50:3 116:
remove [16] 20:21 45: 21                          1 111:4 112:7 115:18 search [1] 52:19            1
 16,17,19 51:12,17 69: resolve [2] 103:12         117:2 122:1 124:17      second [8] 6:20 41:16 sets [2] 23:22 135:21
 14,20 89:5,13 90:21    127:10                    133:3                    51:3 85:6,10 95:12     setting [2] 61:10 124:
 122:25 123:25 130:    resolves [1] 40:4                    [1]
                                                 robert's 94:21            130:2 136:8             25
 21 134:14 135:20      resource [1] 56:19        role [1] 114:23          second-guess [1] 92: seven [3] 62:24 104:
removed [23] 13:23     resources [3] 53:24,      room [5] 27:5 43:18       8                       25 105:2
 14:4,9 17:16 23:6 32: 25 56:9                    57:10 73:5 132:8        second-guessing [1] seventh [1] 34:11
 20,23 33:23 34:2,20 respect [11] 21:11 25:      roosevelt [4] 27:5 43: 73:7                      several [2] 114:13
 43:12 48:23 50:7 66: 1 30:14 61:16 64:5,         18 57:9 132:8           secondly [1] 9:7         128:2
 8,19 67:2,5 68:12 72: 17 72:4 91:13 125:8       route [1] 43:1           section [5] 71:12 101: severino [1] 88:20
 17 74:6 102:10 118:    129:19 130:7             routine [1] 114:16        10 102:5 103:5 110: sexual [1] 76:20
 16 135:5              respectfully [1] 62:3           [3]
                                                 rule 33:5 38:10 76: 12                           shatter [1] 49:5
removing [5] 43:23 44: respects [1] 114:9         4                       see [10] 17:24 60:8 63: shenanigan [1] 134:4
 17 95:23 107:8 115:9 respondent [1] 69:5        rules [1] 94:21           5 76:16 79:16 93:21 she's [11] 12:23 16:16,
renovated [1] 39:11    response [7] 41:17,23     run [4] 12:20 47:6 88: 105:21 118:3 128:5         23,24 21:21 22:20 26:
rent [1] 39:8           42:20 55:6 57:12 61:      11 114:10                129:13                  4 29:8,9 68:11 131:
repeated [1] 13:18      21 76:11                 running [1] 53:7         seeing [1] 24:6          23
repeating [3] 24:5,10, responsible [1] 18:18            [2]
                                                 runs 33:8 136:10         seek [1] 12:8           shoplifting [1] 98:22
 14                    rest [2] 39:13 127:17     rush [1] 82:14           seeking [2] 14:1 130: short-term [1] 119:10
reportable [1] 97:19   restatement [1] 34:20     rushed [1] 84:17          21                     shot [1] 101:12
represent [1] 39:15    restoration [1] 68:5                               seem [9] 22:1 31:22     shouldn't [6] 13:20 32:
representation [4] 7: restore [2] 14:23 67:                  S             73:16 93:2 98:25 99: 23 58:21 83:17 111:
 20 8:6 38:24 41:12     24                       same [12] 10:8 29:4       12 108:15 113:11        14 129:24
representations [3]    restoring [2] 14:2 16:     36:11 53:17 58:21        132:5                  show [6] 10:3 56:16
 25:13 41:5 136:6       12                        94:2 100:5 106:4        seems [15] 12:1 33:18 65:1 85:11 123:2
represented [1] 95:21 restraining [1] 67:23       120:16 122:18 123:       43:2,2 50:4 57:14 80: 132:12
represents [1] 39:18   restriction [10] 6:4,22    20 128:8                 14 93:16 108:6 111: showed [1] 84:9
require [4] 26:15 62:9 27:23 48:15 69:18,23      satisfied [1] 128:23      25 112:4 115:2 116:7, showing [3] 83:25 84:
 70:23 96:14            70:11,13 104:22 122:     satisfy [2] 44:14 126:    9 117:16                1,5
required [9] 10:24 27: 8                          23                      seen [2] 17:24 112:22 shown [1] 111:7
 8,10 38:17 49:2 61:   restrictions [1] 135:4    sauer's [2] 93:9 109:    seized [1] 84:6         shows [2] 84:13 111:
 19 78:16 95:7 100:21 restrictive [1] 51:22       10                               [7]
                                                                          senate 80:1 117:         8
requirement [8] 27:1   review [34] 8:20 9:22     sawyer [10] 14:21,23      24,25 120:18 129:22 shurtleff [13] 30:20,24
 29:25 42:9,12,12,24    32:4 40:5 44:5,8,22       16:10 22:8 29:2 33:6 130:6,11                    37:16,19 58:6,13,22,
 102:6 117:23           45:6 49:2,18 50:17        67:19,22 68:17 136: senators [2] 101:19,         23 59:2 60:8 83:2
                                          Heritage Reporting Corporation
Sheet 11                                                                                      remember - shurtleff

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<!-- page 150 -->
149
                                          Official - Subject to Final Review
 104:17,18               49:22 51:18 53:18       stands [2] 6:19 36:9    street [1] 106:13       supposed [3] 25:24
side   [10] 24:20 28:9   72:3,17 73:2 82:13                 [3]                  [3]
                                                 starkest 16:6,9 29: strike 118:14 119:           90:21 108:23
 52:5 55:8 83:20,25      84:13 86:25 89:23        21                      23 124:5               surely [1] 17:22
 107:5 124:6 125:23      92:1 93:24 95:25        start [3] 7:2 13:24 98: strikes [1] 50:24       surprised [1] 17:25
 126:24                  100:6,13,23 103:25       9                      strong [8] 20:14 49:11 suspensory [3] 21:2
sides [1] 51:2           104:5 106:4,8 107:13 started [3] 50:14,14        54:10 59:13 68:19       33:12 68:20
signed [1] 125:6         109:8,22 110:3 114:      105:18                  72:6 84:12 113:5       suter [1] 104:12
significant [3] 7:20 8: 24 115:4,23 116:6        starting [1] 112:10     stronger [2] 31:16 45: swan [2] 87:25 88:19
 9 119:17                                               [2]
                         120:25 121:4 123:10 state 42:22 128:6            3                      sweeping [1] 19:20
silberman [1] 88:6       126:1,7,15 127:23,24 stated [4] 30:4,6,18       strongest [1] 49:20     system [2] 52:24 66:
similar [2] 30:11 128:   129:7,24,25 131:6        31:11                  struck [1] 48:21         22
 13                      132:21 136:24           statement [4] 14:12     structure [2] 51:8 116:
simple [1] 121:14       sorts [1] 105:19          26:7 45:25 124:22       11                                 T
simplest 121:8[1]       sotomayor      [26] 6:24 statements 9:15[2]                   [3]
                                                                         structured 6:18 69: table [5] 27:6 28:4 57:
simply [2] 31:16 70:     10:16,22 11:1,4,8 12: 112:23                     9 93:18                 9 83:13 89:9
 16                      18 14:6 15:1,12,21      states [8] 6:21 14:3,5 study [1] 47:9           tackle [1] 118:8
since [4] 31:11 53:6     16:15 17:6 21:23 37: 19:21 20:22 53:8           stuff [1] 130:2         taft [9] 72:16,18,24 73:
 55:12 107:2             13,14 38:5,9 40:12       135:21 136:12          subject [6] 44:4,21 45: 9 92:7 95:1 97:6,7
single [2] 110:10 118: 41:8,18 67:10 78:12 status [4] 69:17 70:3          6 46:19 95:24,25        121:1
 24                      112:8,9 113:10           85:20 89:24            subjective [1] 53:14    tails [1] 125:18
sit [2] 57:9 75:9       sources [2] 9:2 32:1     statute [40] 6:9 10:6   submitted [1] 39:19     talked [5] 11:10 20:24
          [1]
sitting 27:6                      [1]
                        speaks 20:10              12:7 15:19 30:5,7,11, subordinate [2] 122:      66:15 117:11 128:14
situation [16] 52:13    specific [6] 10:5 21:     17 31:12 38:12 47:21 13,13                     talks [1] 109:17
 61:15 67:13 79:6 86: 11 58:18 85:21 102:6 48:13 56:12 58:5,5,           substance [3] 108:14, tank [2] 23:2,6
 21,24 101:13 115:16 105:5                        14,17,23 61:22 63:10, 17,18                    tax [1] 118:20
 118:18 119:4,8 124: specifically [2] 89:22       12 64:3,7 65:7,9,14, substantiate [1] 107: temporal [1] 11:22
 22 125:3,5 130:20       106:16                   15 67:1 70:22 93:21     22                     temporary [1] 67:23
 133:22                 specified [7] 30:22 31: 94:5 95:8,21 96:23       substantiated [1] 107: temptation [2] 69:15
situations [5] 12:4 14: 17,19 38:12 44:22 59: 102:5 110:11,13 116: 15                             114:22
 14 52:13 118:19 124: 7 60:7                      11 128:9 135:1         substantive [5] 70:14 temptations [1] 119:
 9                      specifies [1] 58:24      statutes [8] 30:12 60: 75:3 106:8 115:4          10
sliding [1] 95:4        specify [1] 71:25         20,23 61:12 71:2,21, 121:21                    tenure [4] 37:22 38:16
social [13] 25:6 28:16 specter [1] 9:9            22 76:5                succeeding [1] 86:14     64:23 134:24
 35:23 39:2 55:4 57:4 spend [1] 80:18            statutory [10] 6:6 9:2 success [8] 84:2,3 85: tenured [1] 37:25
 112:10 130:19 131:7, spends [1] 92:25            72:1 82:17,24 98:6      12,12 90:6,7,18 103: term [14] 9:21 38:8,13
 23 132:6,12,18         spent [2] 33:2 56:3       104:22 108:20 133:      13                      60:25 61:1,3,16,23
soil [6] 31:15 59:17    squarely [1] 22:8         12 135:2               succinctly [1] 118:10    62:20 63:2 80:10
 60:14 63:7 72:4,6      stack [1] 8:10           stay [18] 10:20 14:1    sued [1] 16:25           104:23 115:4 119:12
solecisms [3] 16:6,9    staff [1] 29:9            15:3 17:5,9 18:21 19: suffering [5] 122:23     terminated [2] 68:7,8
 29:21                  stage [3] 101:3 102:      8,14 20:15 21:14 22: 123:5,7,9,20              terms [4] 90:23 101:
solely [2] 36:25 75:17 18 106:10                  2,25 36:17 83:23 103: suffice [2] 27:9 136:     23 127:25 133:14
solicitor [3] 69:22 95: stake [1] 18:22           15 108:25 135:12        19                     test [2] 43:15 45:15
 22 118:7               stand [3] 37:6,8 111:     136:21                 suffices [2] 7:25 70:5 tested [3] 45:16 128:
solve [2] 80:15 115:2    16                      staying [1] 16:23       sufficiency [1] 32:15    19 129:15
solves [1] 88:10        standard [36] 9:22 11: stealing [1] 98:22        sufficient [10] 88:24   testify [1] 94:14
somebody [6] 97:17       25 30:15,25 32:8 34: step [2] 56:15 66:23        102:25 110:8 114:2,5, text [6] 35:22 47:20
 115:10 116:16 123:      13,16 38:25 45:25 47: steps [1] 114:13           7 128:15 130:19 131: 62:6 63:10,12 65:14
 25 124:1 134:7          1,2 51:19,22 65:23      stick [3] 76:25 77:18,   24 134:1               themselves [1] 101:
               [4]
someone 12:14 15: 76:7 78:11 85:11,13             23                     suggesting [1] 72:23     19
 4,6 99:8                86:15,19,20,25 87:1 still [11] 15:3 16:16 29: suggestions [1] 41:3 theory [2] 97:3 115:23
someone's [1] 24:18      91:20,23 102:15 110: 8,9,10 45:21 106:19, suggests [1] 71:9             there'd [2] 92:12 102:
somewhere [1] 128:       1 114:17,20 116:22       20 123:2 126:19 127: sum [1] 69:21              19
 24                      117:6 126:24 133:13, 10                         supplemental [3] 60:2 therefore [7] 6:2,21 8:
sorry [9] 15:12 16:6     17,20 134:17            stock [1] 17:17          62:5 104:7              1 46:19 47:6 82:3
 24:13 35:7 83:5 90:    standards 35:3 92: story [2] 28:11 55:8
                                      [8]                                support [1] 134:14       121:11
 11,16 99:21 104:13      23 93:5 110:7 125:1 stoutly [1] 16:23           supported [1] 134:7     there's [90] 5:13 6:6,
sort [51] 7:16 10:21     127:22 128:21 129:      strain [1] 59:5         supports [1] 24:16       11 8:1,20 9:19 10:7,
 16:23 18:7 21:13 25: 15                         strains [1] 54:10       suppose [4] 8:9 26:13 12 11:2 18:14 19:24
 15 29:2 31:21 44:20 standing [1] 57:18          strange [1] 103:20       76:17 86:11             24:18 26:7,25 28:20
                                           Heritage Reporting Corporation
Sheet 12                                                                                           shurtleff - there's

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150
                                         Official - Subject to Final Review
 31:12 32:22 33:2 34: 24 34:1,22 41:24          80:2 90:23 92:18            12                    15,16,20 45:2,2 53:7
 1,18,24 36:12 38:15 traditionally [2] 24:17 101:4,6 102:19 113: unusual [3] 101:12               54:3 56:14 58:2 59:
 41:24 42:8,17,25,25     128:4                  21,22                       104:5 129:6           16 64:24 67:14 74:24
 43:14,15,15,20,25 44: traditions [1] 49:21     ultra [6] 9:20,22 10:2 up [20] 11:20 17:6,17      79:19 81:1 84:17 85:
 3 46:13 48:21 49:1,    transaction [1] 44:10   12:1,3 34:15                28:2 36:9 45:12 52:   19 88:8,22 91:1 96:
 17 50:8 52:3,4 54:3,4, transparent [1] 6:5     unambiguous [1] 6:9         15 55:23 56:4 60:17   11 97:6 102:13,17,21
 22 59:15 60:11 61:5 treat [3] 29:8,9 94:6      unanimous [1] 31:23         66:5 71:12 76:12,13   109:25 111:15 112:1,
 63:2 68:18,23 70:6                 [1]
                        treated 124:12          unbroken [1] 69:11          87:18 99:15 110:14    4 115:2 119:17 120:
 72:5 73:6,16 75:8 76: treating [1] 83:2        uncertain [1] 81:19         116:4 127:25 132:13 16 121:8,10,14,17
 6 78:13 79:1,23 82:8, treatise [1] 60:4        uncomfortable [2]          useful [1] 94:23       127:4 131:6 135:10
 10 87:24 88:5,17,21 tribunal [3] 72:19 73:     110:15,21                  uses [3] 101:18 104:   ways [3] 10:7 61:12
 90:6,22 92:3,16,24      11 97:7                unconstitutional [1]        23 106:15             102:20
 98:5 99:7 102:13       tried [2] 69:14 87:11   69:19                                             weaken [1] 49:5
 103:7 104:18,19,19, trigger [1] 17:10          under [21] 8:12 11:7,                  V          weakness [1] 27:17
                                 [1]
 22,24 107:9,25 108:8 trivial 52:17             25 12:7 35:3 39:4 58: vacation [4] 39:20          webster's [1] 129:8
 114:23 121:22,23                   [3]
                        trouble 70:7 94:11 5 67:19 75:22 76:7,              108:1 112:19 113:1    week [1] 23:16
 124:11,13 127:1,1       116:23                 18 80:21 83:15,15 85: validity [2] 6:3 48:14      weeks [2] 15:2 25:11
 129:20                 true [4] 15:1 37:21 71: 12 86:14 99:2,5 101: validly [2] 15:18 29:12 weigh [3] 18:10,24 20:
they'll [1] 80:7         24 93:20               3 113:6 132:15             variations [1] 101:4   7
they've [4] 7:11 9:20   trump [2] 53:8,8        undercut [1] 66:9          various [2] 60:23 75:7 weighing [2] 19:6,15
 115:22 116:1           trump's [1] 20:10       undermine [1] 128:16 velger [1] 41:2              welcome [2] 5:3 70:
             [6]                [8]
thinking 39:12 50: truth 25:6 28:15             understand      [20] 24:1, ventilate 82:21
                                                                                       [1]        19
 4 52:7 56:13 112:11     57:4 112:10 131:7      24 29:22 52:4 56:10 ventilation [1] 82:22         well-established [1]
 122:11                  132:6,12,17            57:6 60:21 64:3 68:        vermont [3] 26:19 54: 61:18
third [2] 86:3 95:15    try [7] 57:24,24 58:1   15 71:6 73:14 76:4          24 58:2               well-settled [1] 59:20
thomas [10] 5:4,10 35: 63:17 84:15 100:15       77:8 106:3 107:19          version [1] 93:9       whatever [8] 15:19 17:
 10 70:20 71:1 72:9      125:17                 108:5 115:19 119:18 vexed [1] 130:11              23 37:18 42:24 78:4
 109:2,3,7 110:5        trying [7] 24:24 35:1   120:3 131:16               video [1] 79:2         80:1 91:23 130:10
thorough [1] 54:18       64:2 82:14 93:23 94: understanding [7] 77: videos [2] 77:9 98:19 whatnot [2] 24:18 125:
though [7] 6:3 74:21     5 119:6                4 82:23 95:20 98:12 view [8] 23:9 47:18 48: 11
 84:23 86:10 100:21     turn [2] 16:22 131:25   99:24,25 128:1              17 49:16 56:25 61:9 whereas [2] 60:9 121:
 125:17 127:24          turning [1] 133:10      understood [4] 38:21, 95:6 104:12                 19
thoughts [2] 28:24      turns [1] 16:25         23 111:12,12               vires [6] 9:20,22 10:2 wherever [1] 43:18
 121:12                 tuttle [3] 32:3 59:23   undisclosed [1] 130:3 12:1,3 34:15                whether [26] 5:14 8:
         [1]
threat 21:20             63:4                             [1]
                                                unduly 93:24               virtue [2] 121:23,23   15,16,22 11:11,23 12:
three [10] 9:1 10:7 12: tweak [1] 110:16        unhelpful [1] 95:4         vision [1] 65:8        1,4,6 13:22 16:22,24
 6 13:3,17 17:17 95:    tweaking [1] 110:17     unique [9] 69:17,24        voice [1] 20:10        17:19 40:24 72:6 80:
 10 101:17,25 105:2     tweet [1] 96:2          70:8 94:6 107:19                                  4 88:17 89:18,23 108:
thwart [1] 12:19        twelve [1] 14:7         114:11 116:24 118:                     W          19 113:18 114:2 126:
tick [1] 93:21          twice [1] 51:14         13 123:9                   wait [2] 13:20 90:10   21 128:23 133:10
tie [1] 79:8            twin [1] 37:4           uniquely [3] 6:18 69:8 waiting [2] 13:8 101:      135:8
tied [3] 119:13,15,16   two [37] 5:11 7:13 17: 93:18                        14                    whichever [1] 135:10
tilting [1] 118:5        13,13 25:11 30:19 34: uniqueness [1] 122:5 waits [1] 57:11               whim [1] 63:24
today [3] 11:10 12:10    24 36:10 37:9,17 38: unitary [2] 97:2 122:               [1]
                                                                           walls 115:14           whole   [9] 35:13 53:9
 74:21                   4 40:21 42:15 51:9,    11                                 [1]
                                                                           walsh 134:9            89:1  93:14   94:10
together [1] 116:6       24 54:9,22 55:5 61:    united [8] 6:21 14:3,4 walter [1] 79:23           111:24 112:9 116:4,
tomorrow [1] 132:9       23 65:16 81:20,20 83: 19:21 20:21 53:8            wanted [5] 28:22 43:9 11
took [4] 36:7 81:25      14 84:5,9 86:2,17 92: 135:21 136:11                51:25 72:15 102:9     who's [3] 19:2 33:22
 103:3 130:15                                                 [2]
                         24 96:3 101:25 105:3, unleashed 51:2,11 wants [4] 64:18 73:8             97:19
tool [1] 51:12           4 117:16 127:12 129: unless [1] 128:16             92:6,9                wiener [1] 33:10
tools [2] 51:1,10        20 135:13 136:18       unlike [1] 119:5           warranto [1] 34:23     wilcox [2] 6:17 13:18
toothless [1] 70:12     two-thirds [1] 117:23 unprecedented [3] 14: washington [2] 39:9, will [12] 17:20 18:25
total [1] 69:22         type [1] 95:6           2,7,9                       11                    32:17 39:15 88:23
totally [1] 16:2                                unrelated [1] 113:13       wasting [1] 32:21      97:23,24 100:24 104:
tradition [7] 6:20 33:7               U         unreviewable [1] 8:14 watch [2] 124:14,15         2 106:11 114:10 123:
 48:8 68:19 69:10,10 ulrich 62:7 [1]            until [3] 5:2 13:20 67: watertown [1] 134:11 11
 93:20                  ultimate [3] 79:6 119: 5                           way [47] 8:17,20 34:7 willing [1] 76:16
traditional [9] 5:18 6:  5,24                   unto  [1] 88:24             35:2 42:8,25 43:1,15, wilson [1] 69:13
 1 10:13 20:15,19 33: ultimately [9] 64:21      untrammeled [1] 122:                              win [5] 90:19 101:3
                                          Heritage Reporting Corporation
Sheet 13                                                                                                there's - win

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                          Official - Subject to Final Review
110:2 125:18 126:4
window [1] 28:13
wisdom [1] 53:22
wishes [1] 97:17
withheld [1] 130:12
within [6] 8:24 9:8 25:
11 46:22,24 120:7
without [7] 9:3 32:6
56:24 69:20 102:18
103:19 118:5
witnesses [1] 94:14
wondering [2] 32:21
124:25
woodrow [1] 69:13
word [1] 27:18
words [6] 8:13 21:4
34:12 55:7 102:2
125:4
work [7] 10:12 29:16
81:5 97:5 113:13
125:4 127:2
worked [2] 81:3 97:6
works [2] 100:1 117:
19
world [8] 25:21 52:8
67:8 74:11 92:16
118:16 126:19 130:
25
world's [1] 13:11
worried [1] 49:13
worries [1] 41:23
worse [2] 78:4 80:7
worth [1] 87:24
wrestle [1] 88:16
wrestled [2] 88:1,13
writ [3] 15:15 16:7 34:
10
write [1] 88:15
written [2] 70:22,23
wrongdoing [1] 117:
14
wrongfully [1] 34:2
wrongly [1] 34:20
wrote [1] 65:18
          Y
yankee [3] 26:19 54:
 24 58:2
year [1] 39:12
years [14] 5:18 6:13
 14:7 21:5 49:25 51:
 14 70:17 77:5 78:6
 81:4 110:24 111:1
 112:3 124:13
yellen [1] 133:18
york [3] 39:10,13 134:
 3
yourself [3] 11:18 42:
 20 79:8
                           Heritage Reporting Corporation
Sheet 14                                                       win - yourself
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