[00:00:02] Speaker 00: Case number 16 at 52-32 at L. Senate Permanent Subcommittee on Investigations versus Carl Farrell. [00:00:09] Speaker 00: Appellant, Mr. Corn Revere for the appellant, Mr. Caballero for the appellee. [00:00:24] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:28] Speaker 03: Because PSI has conceded that it's no longer seeking documents where there are claims of privilege, for attorney-client privilege, for work product privilege, and has agreed that the decision below should be vacated on that point, I'll focus instead on the First Amendment question. [00:00:45] Speaker 03: The basic question here is, can PSI impose a virtually limitless obligation to search and catalog documents relating to six years of editorial decisions? [00:00:55] Speaker 04: Maybe you should start with moodness. [00:00:59] Speaker 03: Yes, Your Honor. [00:01:02] Speaker 04: Then we can get back to the mayor. [00:01:05] Speaker 03: Thank you, Your Honor. [00:01:06] Speaker 03: The subcommittee is arguing that the issue is moved because the documents have been produced. [00:01:11] Speaker 03: We disagree because there's still meaningful relief that can be granted. [00:01:15] Speaker 03: This was a point that the Supreme Court addressed in Church of Scientology versus United States. [00:01:20] Speaker 01: Well, can I just ask you, before we get to the documents that have been produced, what about the documents that have not been produced? [00:01:27] Speaker 03: Well, there still are documents that we are withholding with claims of privilege. [00:01:30] Speaker 03: Right. [00:01:30] Speaker 01: As to those? [00:01:31] Speaker 03: As to those, the case would not be moved to the extent that the subcommittee still maintains an interest in seeking them. [00:01:39] Speaker 04: The subcommittee has said it has no interest in them at all. [00:01:44] Speaker 03: But that's right, Your Honor. [00:01:45] Speaker 03: They're saying they're no longer seeking the documents for which there is a claim of privilege. [00:01:50] Speaker 03: We maintain that the case is not moved with respect to the documents that have been produced as well. [00:01:54] Speaker 01: And that was the point that the — So are you conceding that it's moved with respect to the documents that have been withheld? [00:02:02] Speaker 03: not to the extent the committee is still seeking them. [00:02:04] Speaker 04: But it sounds like the committee is not seeking them, so let's take it as a... It says, quote, the subcommittee is no longer, I mean from the brief, is no longer seeking documents withheld by Mr. Fair. [00:02:18] Speaker 03: That's right, Your Honor. [00:02:19] Speaker 03: And with respect to those documents, the subcommittee has also maintained that they would agree that to the extent it's moot, that they would agree to vacating the district court decision below. [00:02:27] Speaker 01: I don't know if they agreed to vacate. [00:02:30] Speaker 01: I thought the footnote was a little more Cagely worded than that, and we can ask them about that. [00:02:33] Speaker 03: I think Cagely is the right term, Your Honor, where it says that we wouldn't have any real objection if the court then agreed to vacate. [00:02:38] Speaker 01: Right, but just on the subject of muteness, without getting to vacator, it sounds then like, at least with respect to the documents that are being withheld, it doesn't sound like you object to the notion that we would take into face value the committee's statement that it doesn't seek the documents anymore. [00:02:54] Speaker 03: And the difference between the two, Your Honor, is that one set of documents has not been produced, and because of those, there is no current damage, there's no remedy to be sought. [00:03:05] Speaker 03: Whereas with respect to the documents that have been produced, there is still a meaningful remedy to be sought. [00:03:10] Speaker 03: And that is the kind of remedy that the Supreme Court addressed in Church of Scientology versus the United States, saying that even though the documents have been produced and you can assert that the damage has been done, there still is meaningful relief. [00:03:23] Speaker 03: And in this case, [00:03:24] Speaker 03: the relief that could be granted is return of the documents, denial of the subcommittee to continue to use it for outside non-legislative purposes. [00:03:31] Speaker 04: What do you do with the committee's argument that Church of Scientology did not involve a subpoena issued by Congress and here there's a speech and debate clause defense which renders the court unable to provide any relief at all? [00:03:48] Speaker 03: Well, it's true. [00:03:49] Speaker 03: Church of Scientology did not involve a congressional use of documents. [00:03:53] Speaker 03: But other cases that we cited in our briefs, like the Proxmire case, US v. McSurley, talk about how where there is a non-legislative use of documents, there still is a remedy that can be provided. [00:04:08] Speaker 03: The Scientology case really talked about how even though the documents have been produced, you can't argue that the case has moved because the damage has been done. [00:04:14] Speaker 03: Let's move on. [00:04:17] Speaker 03: That addresses that point. [00:04:18] Speaker 03: But the secondary point as to the speech and debate clause, to the extent these documents are being used for non-legislative purposes, then there is still a need for a... Can you go back? [00:04:27] Speaker 04: I'm sorry, but you cited McShirley. [00:04:30] Speaker 03: Yes, we did. [00:04:30] Speaker 04: That seems to support the Senate Committee. [00:04:34] Speaker 04: It says that... It says that... [00:04:40] Speaker 04: Even though the materials come to the committee unlawfully or some other ways, quote, subsequent use by the committee in official business is privileged legislative activity. [00:04:51] Speaker 03: In its essential business, but to the extent it's being used for non-legislative purposes, then the documents can be ordered to be returned. [00:05:00] Speaker 03: In this case, there's something. [00:05:01] Speaker 04: I'm sorry, if they're not being used for legislative purposes? [00:05:03] Speaker 03: That is correct. [00:05:04] Speaker 04: But is there any evidence that they aren't being? [00:05:08] Speaker 03: Yes, there is. [00:05:09] Speaker 03: As a matter of fact, the supplemental article that we submitted, written by Senator McCaskill, talks about how the documents are being used for all kinds of non-legislative purposes, including being provided to outside litigators who are going to bring suit against back page, that as she writes in the article, that she doesn't need to use these documents for legislative purposes to achieve her objectives. [00:05:33] Speaker 03: The op-ed piece that she wrote in the Kansas City Star was something in the nature of a signed confession. [00:05:38] Speaker 03: that these are non-legislative purposes. [00:05:40] Speaker 03: And that's the very kind of thing that Hutchinson versus Proxmire talked about, where you have a senator using talk shows, using newspaper and press releases to talk about documents and materials that he otherwise came by. [00:05:56] Speaker 01: So is your argument limited – we could talk about non-legislative purposes, but is your argument limited to non-legislative purposes? [00:06:01] Speaker 01: What about if it's within the can of ordinary legislative purposes? [00:06:05] Speaker 01: Is this feature debate clause does interpose an obstacle to the court's ability to grant relief? [00:06:11] Speaker 03: It does affect documents to the extent that Congress has demonstrated that it is using them for a legislative purpose. [00:06:19] Speaker 03: I think the McCaskill article suggests that they are not being. [00:06:22] Speaker 03: But I think Doe versus McMillan speaks to that point, where even if materials are obtained for a legislative purpose, the private republication of documents introduced and made public at a committee hearing are not [00:06:37] Speaker 03: necessarily part of the legislative process. [00:06:40] Speaker 03: Here, one of the arguments we've made as well is that the entire exercise of the investigation was done not for a legislative purpose, but instead both to punish back page and to provide supplemental support for outside litigation. [00:06:55] Speaker 03: And so as a consequence, there are [00:07:00] Speaker 03: actions of the court can take to provide meaningful relief. [00:07:02] Speaker 03: And keep in mind, in terms of moodness, we're not talking about a high threshold here. [00:07:07] Speaker 03: We're talking about whether or not there is some relief that can be granted that makes the case not moot. [00:07:14] Speaker 03: And that's exactly what's going on here. [00:07:15] Speaker 02: But you're not seeking, like, an order from us to limit the use of the documents for legitimate legislative purposes. [00:07:27] Speaker 02: You want to claw back the documents. [00:07:29] Speaker 03: We do want to add return of the documents where there are documents that have not been disclosed to, of course, not have those disclosed. [00:07:39] Speaker 03: There could be an order saying that the documents cannot be shared for non-legislative purposes outside of Congress. [00:07:46] Speaker 03: There are a number of ways in which meaningfully it could be provided. [00:07:50] Speaker 04: Well, your answer to Judge Wilkins leads me to ask you a question about something else in the Senate Committee's motion. [00:07:59] Speaker 04: They say that any relief [00:08:03] Speaker 04: that here is barred not just by speech or debate, but by Section 1365B, which says, nothing in this section shall confer upon the court jurisdiction to effect by injunction or otherwise. [00:08:25] Speaker 04: the issues or effect of any subpoena. [00:08:29] Speaker 04: And their argument is that anything, if we were to issue an order requiring the Senate to return the documents, that would affect the Senate's ability to use the documents for legislative purposes. [00:08:48] Speaker 04: So they suggest that this is completely independent from the question of mootness and speech or debate. [00:08:56] Speaker 04: Do you have a statutory bar here? [00:08:59] Speaker 03: Right, but the statute was designed not to convey additional authority on the courts to modify subpoenas. [00:09:08] Speaker 03: It was written in the context of cases like Eastland, where you have people suing Congress, not in terms of an order where the Senate has gone to the... I'm just looking at the language of the statute. [00:09:21] Speaker 04: The language of the statute says [00:09:23] Speaker 04: We have no jurisdiction to, quote, affect by injunction or otherwise the issuance or effect of any subpoena. [00:09:36] Speaker 04: It seems like it covers this situation. [00:09:41] Speaker 03: Well, Your Honor, I think if it's read in that way, then it says that the Court of Appeals has no jurisdiction over a lower court's order that enforces a subpoena. [00:09:51] Speaker 03: And I think the statutory language is written with the assumption that this court does have jurisdiction over the lower court's order enforcing a subpoena. [00:10:02] Speaker 04: No, I wasn't arguing we didn't have appellate jurisdiction. [00:10:04] Speaker 04: I was saying that no court has jurisdiction to affect a subpoena. [00:10:10] Speaker 04: district court or us. [00:10:13] Speaker 04: It wasn't a question of an appellate jurisdiction. [00:10:17] Speaker 03: I think we're talking about affirmative relief here, where you're talking about modifying a subpoena that the Senate has brought to you for enforcement. [00:10:27] Speaker 02: Well, let me just follow up on Judge Taylor's question. [00:10:30] Speaker 02: Could the district court have entered a protective order saying, you have to turn over these documents to the Senate, but Senate, you can't use these documents for any purposes other than A, B, and C. Could the district court do that consistent with Section 1365B? [00:10:53] Speaker 03: I think that would have been modifying the terms of the subpoena. [00:10:57] Speaker 03: And just as it was argued in front of the district court that only a part of the subpoena could not be enforced, I think that would have added to the terms of the subpoena. [00:11:06] Speaker 03: Here, what we're asking for is relief that undoes the effect of the ruling below. [00:11:10] Speaker 03: So to claw back the documents, for example, does not modify the terms of the subpoena, but it does restore to the status quo ante [00:11:20] Speaker 03: the state of things before the order was granted. [00:11:23] Speaker 02: Well, then maybe you should have suffered contempt and not turned the documents over. [00:11:31] Speaker 03: I think we would have faced the same kind of issue. [00:11:34] Speaker 03: Certainly, the Senate would have been arguing that the speech and debate clause had the same effect of barring the [00:11:42] Speaker 03: the relief and in terms of the statutory analysis. [00:11:45] Speaker 03: I'm not sure suffering contempt would have changed the statutory argument either. [00:11:50] Speaker 01: Why would they say – I don't understand – why would they say something about the speech or debate clause? [00:11:53] Speaker 01: Because if it's a contempt situation, the documents wouldn't have been turned over. [00:11:57] Speaker 01: So there wouldn't be no speech or debate clause obstacle to clawing the documents back. [00:12:02] Speaker 01: you would have somebody held in contempt. [00:12:03] Speaker 01: So we can ask them. [00:12:05] Speaker 01: But as I understand it, their speech or debate clause argument wouldn't apply in a situation in which you had contempt. [00:12:11] Speaker 03: Well, that is true, Your Honor. [00:12:12] Speaker 03: And we think it doesn't apply in this case in any event. [00:12:17] Speaker 03: If there are no further questions on the issue of mootness or statutory language, I would like to spend a couple of minutes, at least, on the merits. [00:12:26] Speaker 03: And getting back to the basic question of whether or not the PSI can impose a virtually limitless obligation to search and catalog documents without regarding the First Amendment, we think that the district court made two fundamental errors of law. [00:12:40] Speaker 03: First, it vastly understated the First Amendment interests involved. [00:12:43] Speaker 03: And second, it failed to appropriately balance the respective interests. [00:12:47] Speaker 03: With respect to the Mr. Ferrer's First Amendment rights, the Court agreed that investigations are subject to the First Amendment, but essentially found that there were no significant First Amendment interests here because we were talking about the editorial policies applied to third party content. [00:13:04] Speaker 03: This devalues the rights that have been recognized both in the brick and mortar world and also in rights involving online speech. [00:13:13] Speaker 03: With respect to traditional media, the courts have held in numerous cases that editorial decisions involving third-party content are protected by the First Amendment. [00:13:22] Speaker 03: That includes Denver area telecommunications. [00:13:26] Speaker 01: So that's definitely true that editorial decisions are protected by the First Amendment, where there's a bar against exercising editorial discretion. [00:13:32] Speaker 01: That brings that interest squarely into play. [00:13:34] Speaker 01: What exactly is the First Amendment injury that you're complaining of? [00:13:39] Speaker 01: Because asking for documents doesn't tell you that you can or can't exercise editorial discretion in one particular way. [00:13:48] Speaker 01: It's just asking for documents. [00:13:49] Speaker 03: Well, it's just asking for documents. [00:13:51] Speaker 03: They're documents that detail the internal decision-making process on editorial decisions. [00:13:56] Speaker 01: So is the injury, the unveiling of the – making those decisions non-confidential vis-a-vis the Senate, is that the injury? [00:14:02] Speaker 03: Well, that's right. [00:14:03] Speaker 03: Just as in the Bursie case, when we're talking about the editorial decisions that went into the Black Panther Party newspaper, there you're talking about a very strong government interest because the articles were talking about violent overthrow of the United States, an assassination of the president, how to make a Molotov cocktail, and so on. [00:14:18] Speaker 03: But the First Amendment interests of whether or not you could intrude on that, then set up a balancing test and a balance and a burden-shifting analysis, where once it was shown that there was a First Amendment interest, as there is in these editorial decisions, then the question became whether or not the government had met its burden. [00:14:38] Speaker 03: And one of the burdens [00:14:39] Speaker 01: So it's the laying bare of the editorial decisions? [00:14:43] Speaker 01: That's what the injury is? [00:14:45] Speaker 01: I'm sorry, I didn't hear the first part of the question. [00:14:47] Speaker 01: It's unveiling the editorial decisions? [00:14:48] Speaker 03: It's two things. [00:14:49] Speaker 03: It is unveiling the editorial decisions, and it's the volume that we're seeking here. [00:14:53] Speaker 03: The cost. [00:14:54] Speaker 03: So you're talking about millions of editorial decisions all required to be produced. [00:14:59] Speaker 03: It would be tantamount to, I'm hesitant to suggest this hypothetical because I don't want to give anybody any ideas, but let's say that Congress decided to investigate [00:15:08] Speaker 03: the growing problem of fake news. [00:15:10] Speaker 03: And they decided in pursuit of that, that they would subpoena six years of editorial decisions from the online version of the New York Times and from CNN. [00:15:21] Speaker 03: Under this analysis, under the district court's order, they would have to first catalog and log every piece of paper that they claim to withhold on First Amendment grounds. [00:15:36] Speaker 03: in order to make a First Amendment objection. [00:15:38] Speaker 03: And we argue that that simply is not a tenable position. [00:15:41] Speaker 03: And that was the position of the district court in Hood versus Google for the very same reasons. [00:15:47] Speaker 03: I see that my time is just about to expire. [00:15:52] Speaker 04: OK, thank you. [00:16:09] Speaker 05: May it please the court, Thomas Caballero from the Assistant Senate Legal Counsel for the Senate Permanent Subcommittee on Investigations. [00:16:16] Speaker 05: I want to go directly to the question of mootness that the court has been discussing with the opposing counsel. [00:16:21] Speaker 05: As I add, they've conceded mootness with regard to the attorney-client documents. [00:16:25] Speaker 05: The only distinguishing point between that, of course, and mootness to the documents that have been produced is their claim that there could be an effective remedy against the Senate. [00:16:34] Speaker 05: As we pointed out, there's no case [00:16:36] Speaker 05: in the history of the Republican, which the courts have ordered the Senate how it can use not to use documents that is acquired for its legislative use. [00:16:47] Speaker 01: Can I ask you this? [00:16:48] Speaker 01: So does the upshot of your view on that score, does it mean that the minute the documents were turned over, the proceeding was moot? [00:16:56] Speaker 05: with regard to the documents that were turned over. [00:16:59] Speaker 05: Right, which is all we're talking about. [00:17:00] Speaker 05: I think that goes to Judge Wilkins' point and our other, one of our other jurisdictional points, which go into contempt. [00:17:06] Speaker 01: So all we're talking about is the documents that were turned over. [00:17:10] Speaker 01: Correct. [00:17:10] Speaker 01: Let's put to one side the documents that were held and let's assume that [00:17:13] Speaker 01: where there is mootness to that, as you're assuming. [00:17:16] Speaker 01: With respect to the documents that were turned over, the second they were turned over, the Senate's view is that the proceeding was over. [00:17:23] Speaker 01: So in other words, because at that point, the only way you can get them back is through some sort of court order to get them back, and that would be in breach of the speech of debate clause. [00:17:32] Speaker 05: And that supports our argument on appealability. [00:17:35] Speaker 05: that just like a grand jury, if you wish to appeal an order requiring enforcing a Senate subpoena, you stand on your privilege. [00:17:42] Speaker 05: You go into contempt. [00:17:43] Speaker 01: So ultimately, the argument about the speech or debate clause devolves into an argument about contempt, that really the only way to assert your rights in this kind of situation if you feel like you're being subjected to an unfair document request is to go into contempt. [00:17:58] Speaker 05: It's similar to a grand jury. [00:17:59] Speaker 05: When the Senate created this procedure, which this Court of Appeals [00:18:04] Speaker 05: twice asked the Senate to do such a thing, to provide that kind of judicial ability to challenge a ruling from the courts on these kind of privileges. [00:18:13] Speaker 05: The Senate did not then treat themselves in a worse place than a grand jury. [00:18:17] Speaker 05: It had underlying proceedings that it wanted to not disturb, as well as possible, while still providing [00:18:23] Speaker 05: this type of proceeding remedy. [00:18:25] Speaker 05: And it did so, and it deserves the same respect a grand jury subpoena would have. [00:18:29] Speaker 05: If it's ordered to be enforced, if you would like to appeal it, you go into contempt. [00:18:33] Speaker 04: So just following up on Judge Sreenivasan's question, it's irrelevant to this case then that [00:18:38] Speaker 04: that the Senate committee – that the Senate has adjourned, it's irrelevant that the committee has said in its brief it doesn't want any of these materials, correct? [00:18:49] Speaker 04: It's totally irrelevant. [00:18:50] Speaker 04: The only question is, once the materials are turned over, any effort to obtain them is blocked, so the case – so is the case moot, or is it – maybe it's not even a question of mootness. [00:19:02] Speaker 04: Or maybe your point is [00:19:04] Speaker 04: Your point is this is moot and we don't have to decide what would happen if the Senate weren't saying it didn't need the material. [00:19:12] Speaker 05: Let me break that apart. [00:19:14] Speaker 05: I think it is relevant that the adjournment's seen the die of the Senate, because our jurisdictional arguments are not dependent on each other. [00:19:22] Speaker 05: They're each independent. [00:19:23] Speaker 05: And one of those is a statutory argument, which is the statute provides very clearly that enforcement action abates [00:19:31] Speaker 01: So that might be, I don't mean to cut you off, but that might be a freestanding argument. [00:19:34] Speaker 01: I took Judge Taylor's question to be, with respect to your mootness argument, the adjournment, the fact that the Senate doesn't want the documents anymore, none of that matters, because once the documents were turned over, in your view, the case was moot. [00:19:50] Speaker 05: Once the documents were turned over, the case was, well, the issue has been decided. [00:19:55] Speaker 05: The case was moot. [00:19:56] Speaker 05: If they wanted to seek review of that, Mr. Farr had to go into contempt. [00:20:00] Speaker 05: Now, what the mootness argument, of course, applied to their attorney-client documents, which they've now conceded. [00:20:05] Speaker 05: And in that one, where there was still a live issue, obviously the fact we no longer were seeking the documents was quintessentially relevant to the fact that that had become moot as well, but they've now conceded that point. [00:20:16] Speaker 04: But I do want to point out that... Can I go back to your abatement point? [00:20:20] Speaker 04: I'm looking at the language of the statute. [00:20:22] Speaker 04: It says that it won't abate if the committee certifies to the court that it maintains its interest in securing the documents during such adjournment. [00:20:36] Speaker 04: That's not this case. [00:20:39] Speaker 04: This case doesn't have anything to do with that. [00:20:43] Speaker 05: I just respectfully disagree by focusing on a different part of that sentence, Your Honor. [00:20:48] Speaker 05: It says an action, contempt, proceeding, or sanction brought pursuant to this jurisdictional provision abates on the day they die unless the Senate... Yeah, unless the Senate, right. [00:20:59] Speaker 05: Right. [00:21:00] Speaker 05: Certified. [00:21:01] Speaker 05: And if you look at the legislative history, which we cited in our motion, it made clear that there was no debate that the Senate's a continuing body. [00:21:08] Speaker 05: In the Eastland case, just three years before this law was enacted, it made clear that Senate is a continuing body, and there's no mutinous issue to its subpoenas because of the adjournment of the Senate. [00:21:18] Speaker 05: But that raised a concern in the Congress that with regard to Senate subpoenas, enforcement actions and potentially content proceedings there under could go on indefinitely. [00:21:28] Speaker 05: Because the Senate doesn't have to announce a finishing to its investigations. [00:21:32] Speaker 05: They could continue and continue. [00:21:33] Speaker 05: How do we address that problem? [00:21:35] Speaker 05: And they said a default, which was when the Senate adjourns seeing they die, the default is the matter finishes. [00:21:41] Speaker 05: It abates. [00:21:43] Speaker 05: Jurisdiction abates, the matter abates, unless the Senate says we are still interested in those documents, so that we don't have people sitting in contempt during the adjournment. [00:21:53] Speaker 05: Well, during the adjournment, or we would say and beyond. [00:21:57] Speaker 05: Well, I know, but that's not what the statute says. [00:21:59] Speaker 05: Well, even if the court thought that it meant we could only continue to seek them during the adjournment, it wouldn't affect the issue here, because we're not trying to seek them beyond the adjournment. [00:22:07] Speaker 01: Maybe I'm reading the statute incorrectly, but I thought during such adjournment was by reference to the certification, not the period. [00:22:15] Speaker 01: So in other words, [00:22:17] Speaker 01: If the Senate certifies, there may be other problems with the argument, but if the Senate certifies that it still wants the documents during the adjournment, then it's basically certifying that it wants the documents not only during the adjournment, but... But continuing, yes. [00:22:31] Speaker 05: I mean, otherwise, if it just meant that during the adjournment the matter abated, it's not clear to me how that works as a jurisdictional matter. [00:22:37] Speaker 05: So the Court loses jurisdiction for... [00:22:39] Speaker 05: an hour, like the last adjournment, or months, and someone comes out of contempt, out of jail, and then when the Senate reconvenes, we put them... I mean, I don't understand how it works. [00:22:47] Speaker 01: Right, because the one thing we know is the statute's designed to... that was, by design, meant to deal with individuals who were confined under contempt. [00:22:56] Speaker 05: Well, that was certainly one of the interests that was focused, but I would say they weren't limited to just individuals confined, because the statute doesn't say the contempt shall abate, it says the action shall abate. [00:23:05] Speaker 05: So this was a jurisdictional grant to the courts by Congress. [00:23:09] Speaker 05: And when Congress sets up a jurisdictional statute, courts interpret those very strictly. [00:23:14] Speaker 05: And that is a provision that goes right to the hard jurisdiction here. [00:23:17] Speaker 05: So again, that's separate from the mootness argument. [00:23:20] Speaker 05: On that ground alone, we think the matter is beyond. [00:23:22] Speaker 04: Speaking of separate from the mootness argument, did I read your brief correctly that you think this is blocked not just by mootness, but also by 1365B? [00:23:34] Speaker 04: That's what you're... Blocked. [00:23:35] Speaker 05: Here's what it says. [00:23:36] Speaker 05: I guess in the mootness... Well... In the mootness argument, right, what their argument for why this isn't moot is the effect of relief. [00:23:45] Speaker 05: And that effect of relief would be ordering the Senate to no longer use these documents or somehow return these documents as acquired for its legislative use. [00:23:53] Speaker 05: And our point, and I believe Judge Taylor was mentioning this... [00:23:56] Speaker 05: The wording in the statute itself says a court can't issue such an injunction or order that would affect the effect of the subpoena. [00:24:03] Speaker 04: That's why I asked you the question. [00:24:05] Speaker 04: The question was, do we even need to address the mootness and related constitutional question in view of 1365b? [00:24:15] Speaker 04: Your brief says, quote, both the speech and debate clause and the limitations under 1365. [00:24:25] Speaker 04: prevent the court from issuing the order. [00:24:27] Speaker 00: That's correct. [00:24:28] Speaker 04: I read that as saying you could prevail under either one. [00:24:34] Speaker 05: Is that true? [00:24:35] Speaker 05: That's true. [00:24:36] Speaker 05: Just to clarify, their mootness argument is there is effective relief. [00:24:40] Speaker 05: And you can find there's no effective relief simply as a statutory jurisdictional question. [00:24:44] Speaker 05: The court cannot order that relief under this jurisdiction. [00:24:47] Speaker 05: Therefore, there's nothing more we can do. [00:24:49] Speaker 04: And it's moot. [00:24:49] Speaker 05: But how can we do that without addressing the speech or debate issue? [00:24:52] Speaker 05: because the court can say our ability to grant that relief is precluded by the statute. [00:24:58] Speaker 05: Whether or not it would also be precluded by speech or debate is precluded by the very terms of our jurisdiction. [00:25:02] Speaker 01: So how does the statutory language that you are focused on and that Judge Taylor has raised apply in a contempt situation? [00:25:09] Speaker 01: So suppose that [00:25:10] Speaker 01: Instead of turning over the document, somebody goes, the subject of the request is willing to undergo contempt. [00:25:17] Speaker 01: Go to contempt, and then they file an appeal, and they say, wait a minute, this is crazy. [00:25:22] Speaker 01: This subpoena should be not unenforced. [00:25:26] Speaker 01: Would you still make the argument that then a resolution would affect the effect of the subpoena? [00:25:32] Speaker 01: Because it would in some ways. [00:25:33] Speaker 05: What we would say there, Your Honor, would be that it's a court that holds the person in contempt of its own order at that point. [00:25:41] Speaker 05: And if the appellate court disagreed with the lower court's contempt holding, it reversed the contempt, and the person would be free of the contempt. [00:25:48] Speaker 05: We would say, and the statute clearly says, the court couldn't then quash our subpoena. [00:25:53] Speaker 05: It couldn't order the Senate how to proceed an underlying proceeding. [00:25:56] Speaker 05: It couldn't affect the documents we might have received. [00:25:59] Speaker 05: It just could reverse the lower court's contempt order and free the person from contempt, either be it a fine or imprisonment. [00:26:08] Speaker 01: But wouldn't the freeing the person, in other words, the appellate court would be reversing the contempt order, sure. [00:26:16] Speaker 01: And then the question is, what's the consequence of reversing the contempt order? [00:26:19] Speaker 01: In one situation, situation A, which is our case, the consequence would be return the documents. [00:26:24] Speaker 01: The other situation, situation B, the consequence would be get out of jail. [00:26:29] Speaker 01: Either way, it affects the effect on the speed. [00:26:31] Speaker 05: On situation A, we never had the documents. [00:26:34] Speaker 05: That's why he's in contempt, Your Honor. [00:26:35] Speaker 05: Subcommittee never received the documents. [00:26:36] Speaker 01: I was talking about situation A was the one where B was contempt. [00:26:40] Speaker 01: A is they turn over the documents. [00:26:41] Speaker 05: Right, and they did not go into contempt. [00:26:43] Speaker 05: And our point is that [00:26:45] Speaker 05: what the court is affecting when there's a contempt proceeding is affecting the order of the lower court, which it has jurisdiction to do under 1365. [00:26:52] Speaker 05: For a court when there is no contempt to order the Senate how to use legislative documents that's acquired, that isn't affecting its own, its underlying district court order, it's affecting the Senate's proceedings, and that is precluded by 1365B. [00:27:06] Speaker 05: And so I think that, and again, that also goes to the point of appealability that [00:27:11] Speaker 05: Mr. Frisch should have stood on his privilege and on his contempt if he wanted to seek review of the matter. [00:27:21] Speaker 04: Suppose it's totally clear that Congress is no longer interested in any legislation. [00:27:28] Speaker 04: They've dropped the idea completely. [00:27:30] Speaker 04: They're no longer interested in any more hearings. [00:27:34] Speaker 04: But they've decided to release all these documents to the press. [00:27:37] Speaker 04: so that the press can poke through them and put pressure on back page. [00:27:48] Speaker 04: No legitimate legislative objective at all. [00:27:52] Speaker 04: Still? [00:27:53] Speaker 05: Moot? [00:27:55] Speaker 05: Well, the matter became [00:27:58] Speaker 05: I first point to this court's own decision in Hearst v. Black, where it noted that there was no basis for it to prevent Congress from disclosing the documents if it wanted to. [00:28:07] Speaker 05: Now, there's nothing in this record that suggests the subcommittee is disclosing every document. [00:28:11] Speaker 04: I asked you a hypothetical. [00:28:13] Speaker 05: I understand that, Your Honor. [00:28:15] Speaker 05: I don't know of any evidence, or excuse me, any precedent, where this court has ever ordered the Senate not to take action under official action with its documents. [00:28:24] Speaker 05: Now, I don't know what the court means to prevent. [00:28:27] Speaker 05: We're talking official committee action on the document. [00:28:29] Speaker 04: This feature debate clause protects members of Congress in their legislative activities, including hearings, reports, and all that. [00:28:36] Speaker 04: I'm asking you. [00:28:38] Speaker 04: I'm sorry, Your Honor. [00:28:39] Speaker 04: Continue. [00:28:39] Speaker 04: Just what would we do if we all agree that the committee intends to do something with it that isn't covered by that? [00:28:47] Speaker 04: I'm not sure we're a court. [00:28:48] Speaker 04: Or is your answer everything? [00:28:50] Speaker 04: Whatever they do is protected. [00:28:53] Speaker 05: Well, I think with regard to speech or debate clause, there's also issues of separation of power. [00:28:58] Speaker 05: And let me go directly to that question. [00:28:59] Speaker 05: There's nothing in there. [00:29:00] Speaker 05: I mean, I'm not sure where a court would make a finding that a committee intended to do a release of documents completely separate from its legislative proceedings just to put them out in the public. [00:29:10] Speaker 05: I mean, I'm not sure where a court could presume to find committee intent to do that. [00:29:14] Speaker 05: They would give it a basis to even order anything with regard to that. [00:29:17] Speaker 04: Well, OK. [00:29:17] Speaker 04: I suppose it's not backpage.com. [00:29:20] Speaker 04: Suppose it's like Planned Parenthood. [00:29:23] Speaker 04: And Congress has investigated Planned Parenthood and has decided, OK, we're not going to do it anymore, but we've collected all this information about people who use Planned Parenthood, who benefit from it, and we're just going to release all that stuff. [00:29:35] Speaker 05: Like if Congress issued a final report on it and put the documents in the appendix. [00:29:38] Speaker 05: They're done. [00:29:38] Speaker 04: They're finished. [00:29:39] Speaker 04: They're completely finished. [00:29:40] Speaker 04: They declared, we're finished with this. [00:29:43] Speaker 04: Right. [00:29:43] Speaker 04: And if it issued those documents in the form of a report to the House. [00:29:46] Speaker 04: No, not in the form of a report. [00:29:48] Speaker 04: The report's out. [00:29:49] Speaker 04: They're finished. [00:29:50] Speaker 04: Well, I'm not sure. [00:29:51] Speaker 04: Let me just finish one thing. [00:29:52] Speaker 04: I'm sorry. [00:29:52] Speaker 04: They've got all these leftover documents about the internal workings of Planned Parenthood. [00:29:57] Speaker 04: And they decide, look, we can't get Congress to act on this. [00:30:02] Speaker 04: So we're just going to release all this information so that the press can put pressure on Planned Parenthood to stop serving these people. [00:30:12] Speaker 05: And whether or not a court could join the Congress from using those documents? [00:30:16] Speaker 05: Right, for that purpose. [00:30:17] Speaker 05: That was my question. [00:30:19] Speaker 05: You know, again, no precedent I've seen where a court would have joined Congress. [00:30:22] Speaker 04: I know there's no precedent. [00:30:23] Speaker 05: That's why it's called the hypothetical. [00:30:24] Speaker 05: The Senate did not believe that the courts have the right to constrain its official proceedings in that way. [00:30:29] Speaker 04: Well, my question was, it's not official. [00:30:34] Speaker 04: That's built into my question is that it's unofficial. [00:30:37] Speaker 05: Senate Rule 29.5 does not allow the disclosure of documents outside of official proceedings or an official decision of the committee. [00:30:43] Speaker 05: No single member can disclose the documents of a committee's proceedings that aren't otherwise public. [00:30:48] Speaker 05: So for the committee to make things public, it is official action. [00:30:52] Speaker 05: There's no distinction there. [00:30:54] Speaker 01: And if you have a situation, so your view is that there's no publication that the Senate can make that would be in violation of Senate rules. [00:31:06] Speaker 01: It's kind of tautological. [00:31:08] Speaker 05: If a committee determines that it needs to make matters like, it holds a hearing, [00:31:12] Speaker 05: If the Senate committee here, the subcommittee, issued its report and decided to put all the documents in the appendix of its report here, there's certainly, in the Senate's view, no basis for the court to say you can't issue that report or you can't make that report public. [00:31:26] Speaker 05: As long as it's made public as part of the normal proceedings of the Senate, yes, our position is that's beyond the court to effectuate that. [00:31:32] Speaker 01: But some of the cases, I mean, I think your colleague on the other side pointed to DOE. [00:31:36] Speaker 01: There's language in those cases that speak to circumstances in which a legislative body does something with materials that's outside of the legislative can. [00:31:43] Speaker 05: Not in the actual report. [00:31:44] Speaker 05: Agreed. [00:31:45] Speaker 05: Subsequent publications, individuals, members speaking about those at a... And again, the court didn't say you could restrain those actions. [00:31:53] Speaker 05: It just simply said there might be liability. [00:31:55] Speaker 05: For instance, [00:31:56] Speaker 05: A defamatory statement in a committee report that's made public, there's no redress for that. [00:32:02] Speaker 05: But if a member goes to a press conference and makes a defamatory statement under Hutchinson v. Proxmire, they may be. [00:32:09] Speaker 05: So there's a distinction there. [00:32:14] Speaker 02: Doesn't it follow that if you're saying that the court has no ability to review what's done with documents on the back end, [00:32:24] Speaker 02: then wouldn't the logical consequence of that argument, if we were to accept it, be that we have more of a gatekeeping responsibility on the front end? [00:32:36] Speaker 05: I would say that we're not saying the court can't review how documents are used depending on what review means. [00:32:41] Speaker 05: Obviously, if they're used outside of legislative proceedings, there may be some liability they could attach, as in Hutchinson v. Proxmire. [00:32:48] Speaker 05: The release of information outside of that could. [00:32:51] Speaker 05: We're saying the court can't restrain a committee of the Senate from how it uses documents it's acquired in its legislative proceedings. [00:32:58] Speaker 05: Again, previous to the creation of this enforcement mechanism, witnesses before the Senate had to choose to subject themselves to a criminal proceeding or inherent contempt before the Senate to even have a court review the privilege they may have asserted. [00:33:12] Speaker 05: This proceeding gives them much more process than they ever had. [00:33:16] Speaker 05: And the court does have a gatekeeping function. [00:33:19] Speaker 05: It can choose not to enforce the subpoena. [00:33:21] Speaker 05: And one wouldn't assume error in the district court deciding to do that as a normal course. [00:33:29] Speaker 04: Okay, thank you. [00:33:31] Speaker 04: How much time did Mr. Corner Veer have? [00:33:35] Speaker 04: Okay, you can take two minutes, Mr. Corner Veer. [00:33:41] Speaker 03: Thank you, Your Honor. [00:33:45] Speaker 03: Let me start with the last point that Mr. Cavallaro was addressing, and that is whether or not there is an action that can be taken to restrain the further dissemination of the information. [00:33:54] Speaker 03: And I think the relevant precedent is Doe versus McMillan, where you had a House committee issuing a report, but then the courts order to restrain subsequent uses and subsequent release of that information. [00:34:06] Speaker 03: In this case, we have the further dissemination of materials on the subcommittee's website, even after you have the release of the legislative report. [00:34:14] Speaker 03: So I think you have a situation sufficiently like McMillan that that kind of relief can be provided. [00:34:23] Speaker 03: Secondly, in terms of whether or not a witness has to make a choice between complying with the order or suggesting himself to contempt, I think the original statutory language spoke to that issue, whether or not there would be the ability to appeal the court order. [00:34:37] Speaker 03: The original 1978 language of section 1365 stated that in any civil action or contempt proceeding, the court shall assign the action for hearing at the earliest practical date and cause it every way to be expedited. [00:34:51] Speaker 03: Any appeal or petition for review from any order of judgment in such action shall be expedited. [00:34:58] Speaker 03: Now, a few years later, the expedition was taken out of the statute as part of a general reform, but it didn't change the appealability of either a contempt order or the final order of the court. [00:35:10] Speaker 03: As a matter of fact, Judge Collier's, the final line of her opinion was, this is a final, appealable order. [00:35:17] Speaker 03: It is the one thing that the court got right. [00:35:20] Speaker 03: You didn't have to make a choice between subjecting yourself to contempt or appealing the order. [00:35:26] Speaker 03: As far as whether or not we're asking for or whether or not this would violate section 1365B, we are not asking for a modification of the subpoena, rather a modification of the district court's order enforcing compliance. [00:35:40] Speaker 03: And as a consequence, it's certainly fully within the jurisdiction of this court. [00:35:46] Speaker 04: Thank you. [00:35:46] Speaker 04: Thank you. [00:35:47] Speaker 04: The case is submitted.