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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
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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. )
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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 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. )
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13 Washington, D.C.
14 Wednesday, January 21, 2026
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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.
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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
25 different directions on that. Garland, one of
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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
25 influenced by the president when it came to
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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
25 provide something that's a little bit more
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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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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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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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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
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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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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
---
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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
---
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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
---
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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
---
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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
---
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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
---
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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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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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151
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