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Case number 19-5331, Committee on the Judiciary of the United States House of Representatives versus Donald S. McGann, second appellant.

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Mr. Mopan, the appellant.

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Ms.

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Barbaro for the appellate.

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Mr. Mopan, good morning.

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Good morning, Your Honor.

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May it please the Court, the House Judiciary Committee

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seeks to assert an implied cause of action to enforce a subpoena to compel Mr. McGann to testify regarding his duties as White House counsel over the objection of the President of the United States.

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This inter-branch dispute over institutional prerogatives bears no resemblance to the traditional cases or controversies that can be heard under Article 3.

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Moreover,

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While Congress has purported to authorize Senate committees to sue to enforce certain subpoenas against non-federal officials, Congress itself has expressly carved out the authority of the Senate to enforce subpoenas against federal executive officials asserting executive prerogative objections.

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And Congress has- What does the Senate statute, how does that help us think about the constitutional issue, the just disability issue?

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Well, so I think it does in two ways, Your Honor.

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First, we have a straight up subject matter jurisdiction argument because of the Senate statute.

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But the second point is, if you rule for us on the argument that there's no statutory authority, no subject matter jurisdiction, this court can avoid the serious constitutional questions presented by Article III.

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And in fact, for that reason, even if you are- Isn't that the more fundamental question now?

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The Article III question?

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Look, both Article III standing and federal subject matter jurisdiction are jurisdictional questions.

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They're both very important and they're both threshold grounds that have to be decided before you can reach the merits.

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But as between the two of them, there is not a order of priority.

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The courts have recognized that you can decide one or the other first.

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and principles of constitutional avoidance would suggest that if the court resolves the question on statutory grounds, it can defer for a later day to the serious constitutional question.

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Well, let me ask you about the serious constitutional question.

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After Reigns, in your view, when may Congress or a chamber of Congress assert an institutional injury?

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We don't think they ever can, Your Honor, but certainly not in a case where it's an injury against

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Assertive injury against the executive branch.

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We think that reigns reaffirmed the proposition

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that a dispute, an injury only gives rise to an Article III controversy when it's the type of dispute that is traditionally resolved in federal courts.

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But I mean, the Supreme Court has said there is such a thing as institutional injury, right?

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You've got Coleman, you've got Arizona State Legislature case.

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Only for state legislatures and in both ranges.

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Why would that make a difference?

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Because of the separation of powers problem.

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There's serious separation of powers concerns with having a federal court

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resolve an inter-branch dispute, and this is laid out in great detail in Reins.

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Reins specifies that over history there have been countless disputes between Congress and the President, and in none of those disputes have they been resolved through inter-branch litigation over a claimed injury to official authority or power.

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The Court went through examples like the President not suing over the Tenure of Office Act,

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and Congress not suing over pocket vetoes.

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And after a long discussion of that, it's three pages in the discussion of Reigns and then only a 12-page opinion.

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After all of that, it culminates in the conclusion of Reigns.

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And the conclusion of Reigns is that while it might not be irrational to have a scheme in which courts heard those sort of disputes, it is obviously the courts have obviously not the regime that is opinionated.

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But here we have a rather straightforward claim of executive privilege, right?

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Doesn't the Nixon-Tapes case invite us to resolve this dispute?

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I don't think so, Your Honor, because what Reins makes clear is it's not sufficient that the legal issue, the merits issue, be the sort of issue that courts can resolve.

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In Reins, of course, the constitutionality of the Line Item Veto Act was the sort of question that courts can resolve.

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In fact, the Supreme Court resolved it the very next term in Clinton v. New York and resolved it in favor of the unconstitutionality, the very claim that was made by the Congressman in Reins.

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So what Reins tells you is it's not sufficient that the merits question be subject to judicial resolution.

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The question for standing, of course, is whether the plaintiff is the proper party to bring that suit.

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And what Reins described after it went through the history that I just discussed, the conclusion of it was while you could have schemes where that

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that resolve those sort of intervention disputes.

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It is not what we have traditionally done under Article 3, where Article 3 courts exist to resolve, protect the rights of individual citizens, not to engage in the amorphous supervision of the government.

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So with Senate Select Committee and AT&T, those are

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our ventures into legislative standing.

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Are those wrongly decided?

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Well, so Senate Select Committee, there are different answers to each case.

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So Senate Select Committee, the court doesn't address Article III standing, so it's a drive by.

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We do think that there was not Article III standing in that case.

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As to AT&T, it's a different case, both in terms of its facts and its posture.

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So AT&T commenced, in district court, as a suit by the United States to sue a private company.

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That is, of course, a traditional case or controversy brought by the US as sovereign to enforce its sovereign prerogatives represented by the executive branch, the branch of this government that represents the United States in litigation.

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Yeah, but the reality of the case was that it was an inter-branch dispute over information.

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So I don't think it is certainly the case that the House intervened to defend its subpoena.

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But that doesn't change the fact that the nature of the dispute in district court

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was the United States.

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But the nature of the court's analysis was all about the inter-branch dispute over information.

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And that's what we have here.

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That's the merits question.

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But in terms of the standing, in terms of whether there was a case for controversy, focusing on who the plaintiff was and who the defendant was, which is what's critical for standing, as opposed to the merits, it was assumed by the United States to tell a private company not to disclose information.

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All right.

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But to the extent you're distinguishing that case

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on factual and contextual grounds.

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Rains talks about having the proper party.

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Now here we have a different party in the nature of the committee than we do than was before the court in Rains.

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So the committee has been authorized by the full House.

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Doesn't that change your analysis necessarily?

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So I think you're exactly right, Your Honor, that neither AT&T nor Reigns is on factual all fours.

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And so then the question becomes, what about the reasoning of these cases?

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That's what I'm focusing on.

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And so I'll say two things.

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AT&T has no reasoning.

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It has a single sentence with no explanation.

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Go to Reigns.

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Raynes has three pages of reasoning about why inter-branch disputes, and they're not talking about individual congressmen.

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They say suits between one or both houses of congress and the president.

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They talk about how the president never sued over the Line Item Veto Act.

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They talk about how congress never sued over a pocket veto.

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So while it is certainly true that the facts of Reigns involve individual congressmen, the reasoning of Reigns goes far broader.

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And that is essentially what my friends on the committee are arguing.

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But I hear you arguing this morning for an absolute rule that it really doesn't matter who the plaintiff is.

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It could be the full

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Congress as opposed to just one house.

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Because the reasoning of Reins is that inter-branch disputes, disputes between one political branch and another political branch over their institutional prerogatives with no private party to be seen anywhere.

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So go back to what the framers had in mind in having three branches of government.

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The hypothetical obviously is where one branch arguably is stymied in its ability

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to carry out a constitutional duty, there is no remedy available under our constitutional system other than at the ballot box.

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There's no judicial remedy.

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I'll say two things about that, Your Honor.

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The first is I refer, Your Honor, to Justice Souter's concurrence range, which is directly on point for this, where he emphasizes that these sort of inter-branch disputes are far afield from the traditional cases or controversies.

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True, true.

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But that's not the same as saying it's an absolute bar to any such

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judicial remedy.

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Your honor, I do think that the reasoning of Reign says that that is an absolute bar, that federal courts exist to resolve disputes concerning the rights of private parties.

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So deal with my hypothetical.

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And so the answer to your hypothetical, the second part of what I was going to say, is that this court in Campbell versus Clinton addressed this question and said

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It's not that there are no remedies, it's that there are political remedies.

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When you have a dispute between the political branches, that is resolved through political tools.

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And the House has powerful tools to block appropriations, to block legislation.

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If the Senate agrees with the House, they can block nominations, they can affirmably pass legislation.

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The Senate and the House together, Congress- And they can make it the grounds for impeachment, for obstruction of Congress.

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So Campbell versus Clinton did talk about impeachment being one of the tools that Congress has.

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I'm not going to get into whether on any given fact pattern that would be proper or not, but it is certainly one of the tools that Congress has.

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powerful, powerful tools to check the presidency.

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And that's what the courts have routinely recognized.

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If anything, Congress is the more powerful branch.

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But what Congress has never done until very recently is instead of using its political tools, instead of using its power of the person, the power of the legislature.

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Senate Select Committee is the first case we have, isn't it?

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1974.

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So it's the first case.

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I think that's right with one very important exception.

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In 1928, the Reed decision that we talked about in the Supreme Court, the Senate committee did try to sue to enforce a subpoena.

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And it did so pursuant to a Senate resolution that said it could not only issue the subpoena, but take any steps necessary.

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And the Supreme Court held that that was not authorization to sue.

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And the reason the Supreme Court gave for why it was not authorization to sue is that there was a wide divergence between the power to issue a subpoena and the power to sue to enforce it.

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That is just exactly the reason why they don't have the sort of injury that supports Article 3 standing.

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It goes to the broader separation of power principle.

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May I ask you about your claim of absolute testimonial immunity?

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The Supreme Court has repeatedly rejected the President's claim of absolute testimonial immunity.

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How is this case different from the instances which this Court has rejected?

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So I'm not sure what instances your honor is referring to.

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The mixing tapes case.

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So that case, A, did not involve testimonial immunity, it involved document production, and B, it did not involve a congressional subpoena, it involved a judicial subpoena, both of which are very significant differences.

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But I'm happy to talk more about the Americans, but there are several other threshold jurisdictional points that I would like to address before the Americans.

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I just want to ask you on standing.

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Yes.

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Your position is no one has standing.

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So the broadest formulation of our argument would be that Congress, when it's asserting its institutional prerogatives, never has standing.

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But the narrower version, and it's all that's necessary to resolve this case, is say, at a minimum, not when it's an inter-branch dispute.

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That's what I'm talking about.

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In an inter-branch dispute, no one has standing.

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That is our position, Your Honor.

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No one has standing to enforce this subpoena in this court.

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That is our position, Your Honor.

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We think it follows from Reigns.

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And I think as a matter of separation of powers, that's true for two very important reasons.

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One, it's a shifting of power from the executive to the legislature.

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And two, and probably more importantly, it is a radical change to this court's role and one that poses real danger to this court.

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So on the first, I'll be brief because we've largely talked about it, which is, as we cited in our briefs, Buckley versus Vallejo makes clear that the power to file lawsuits on behalf of the United States vindicating public rights is vested in the executive, not the legislature.

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And Buckley talks about this.

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It explains that the Federal Election Commission, if all it was doing was obtaining information, that might have been OK.

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And it actually cites McGrain, the case about the congressional right to gain information.

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But then what it says,

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is the FEC had more power than that.

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The FEC had the power to bring lawsuits.

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And they said that that is no part of the legislative role, and that's why the Supreme Court in Buckley struck down the original FEC.

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So, and the flip side of that is Congress has never had the authority to file lawsuits, and that was the discussion we had about Reid and McGrain.

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I'd like to make one last point on standing, which is the role of the courts.

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And this is a point that Justice Souter made very eloquently in his concurrence, which is,

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The reason it matters that this is an inter-branch dispute rather than a dispute involving private rights is because federal courts have historically existed to adjudicate private rights, and if you instead have them resolving a purely political dispute, a dispute between the political branches, it risks politicizing the court and undermining public confidence in the court.

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And I can't think of a better case to explain that than the facts of this case.

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The House committee in this case has cited our legal position, our merits position, as evidence of why the president has engaged in obstruction of justice and should be impeached.

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If this court rules on the merits one way or the other, you can be assured that the opinion that this court issues will be waived on the floor of the Senate by one side or the other as evidence that either the president is guilty or the president is innocent.

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That is exactly the problem that Justice Souter and the majority in Reins was worried about.

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But that can happen in any litigation.

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And you know that as well as I do.

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I do.

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And what Justice Souter said about exactly that point, Your Honor, is it is certainly true that the federal courts will sometimes have to adjudicate deeply controversial issues, deeply political issues.

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But at least when it does it in the context of a private person's rights,

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When it's protecting private parties from the government, from other private parties, that is the traditional rule of federal courts, and the public understands that that is the rule of federal courts.

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When instead you have a political food fight, when you've got Congress on the one side and the executive on the other side and the judiciary in the middle picking and choosing who the winners are, that is not the traditional rule of the federal courts, and that is when the public might wonder why, with all respect,

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unelected, unaccountable judges are deciding who wins a political fight.

[00:15:30] Speaker 02:
Well, we know that happens when the Supreme Court rules in some of these controversial... My only point is, it's a matter of necessity in those cases.

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And yet, what is traditional is not necessarily a definition of the total authority.

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All I can say, Your Honor, is that Reins does say quite clearly that in addition to having a concrete injury, it has to be the type of dispute that's been traditionally resolved in federal courts.

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It has a lengthy discussion of how these types of disputes between the House, not just members of Congress, but the House.

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But we and the Supreme Court have made it clear that

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opinions of the court, the Supreme Court, must be read in context of what was particularly at issue and what the holding of the court was.

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And the rationale and the reasoning and the explication may go beyond that, as we all know.

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So that's why I started out with my hypothetical, and your response to Judge Henderson makes it perfectly clear.

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There are no circumstances in the Department of Justice's view

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when this type of matter, enforcing a subpoena in order to carry out a constitutional duty, is properly in the court.

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So to the contrary, your honor, I think this court has a long line of cases that recognize that it will not be bound, not just by the strict holdings and precise facts of Supreme Court opinions, but carefully considered language of the Supreme Court will be treated as authoritative, even if it's dicta.

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The three pages in Reigns can't possibly be characterized as dicta.

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It is essential to the reasoning.

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It is essential to Justice Souter's concurrence.

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The idea that this court would say none of that matters and all Reigns stands for is this narrow factual proposition.

[00:17:23] Speaker 02:
No, we don't have to say that.

[00:17:26] Speaker 00:
Well, otherwise they have no affirmative basis to have standing unless you say that the rationale of Reigns is cabined to individual members.

[00:17:35] Speaker 05:
Haven't we already recognized the power of Reigns in Chenoweth?

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haven't we recognized that Reigns does affect our prior approach to legislative standing, our creative approach back in the bad old days?

[00:17:48] Speaker 00:
Right, and what it has done is reject every single attempt by federal legislators to bring a case of controversy in Kennewith and Campbell.

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It has never confronted this precise issue of what Reigns' implications are for the full body rather than individual legislators.

[00:18:05] Speaker 00:
But what I was saying is that the reasoning of Reigns, there are three pages of that opinion that are not talking about individual legislators, that are talking about speed.

[00:18:13] Speaker 05:
Can I ask you about the merits now?

[00:18:15] Speaker 05:
Sure.

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I do have subject matter jurisdiction, but I'm happy to answer.

[00:18:19] Speaker 05:
So you've been riding the Reigns horse pretty strong, pretty gallantly, right?

[00:18:23] Speaker 05:
Now, Reins tells us that history matters a great deal in these separation of powers issues.

[00:18:31] Speaker 05:
Well, the Engel memorandum from the Department of Justice, the Office of Legal Counsel, says the first example of this absolute testimonial immunity, and that's where I'm going, is in 1944.

[00:18:44] Speaker 05:
That's more than 150 years after the founding.

[00:18:49] Speaker 05:
Why should we elevate this late-stage innovation

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to the point of constitutional law.

[00:18:54] Speaker 05:
Well, to be clear, Your Honor.

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History may help you on your Article III standing argument, and that's all you would need to, we're not going to reveal, but if we disagreed with you on that, history hurts you on your testimonial privilege.

[00:19:09] Speaker 00:
Exactly to the contrary, Your Honor.

[00:19:11] Speaker 00:
It is true that the first written opinion describing this might be then, but they don't have any historical examples

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of Congress subpoenaing the President or his close advisors and those individuals testifying under compulsion, as opposed to choosing to testify.

[00:19:28] Speaker 05:
Of course, the give and take between the political branches has always been... Has there ever been an instance of such broad-scale defiance of a congressional request for information in history of the Republic?

[00:19:43] Speaker 05:
Has there ever been anything like this?

[00:19:45] Speaker 00:
Your Honor, I think that that question, with all due respect, underscores exactly why there are real dangers with this Court getting into the marriage.

[00:19:52] Speaker 05:
What's the answer to the question?

[00:19:54] Speaker 00:
As a matter of history.

[00:19:55] Speaker 00:
I don't want to fight with the – characterize it as the premise, but there's a big dispute about whether this is a wide-scale massive resistance or whether what is wide-scale massive resistance is the result.

[00:20:04] Speaker 05:
No, wait, wait.

[00:20:05] Speaker 05:
An instruction has been given from the President of the United States not to cooperate

[00:20:09] Speaker 05:
in any form or fashion with an inquiry.

[00:20:11] Speaker 05:
Has that ever happened before?

[00:20:13] Speaker 05:
Not directed to one individual who occupies a particular position.

[00:20:17] Speaker 05:
Those are the cases you've been talking about before.

[00:20:20] Speaker 05:
But everyone for the administration.

[00:20:22] Speaker 05:
Has that ever happened before?

[00:20:23] Speaker 00:
Not to my knowledge.

[00:20:24] Speaker 00:
I think what the president would say in response to that, Your Honor, is never before in history has Congress engaged in the sort of illegitimate increase they're doing.

[00:20:31] Speaker 00:
I don't want to get into that fight precisely because that is exactly the sort of political dispute that this court should not be engaging.

[00:20:38] Speaker 00:
This court should not be refereeing who's right or wrong about whether the president is acting totally unusually or Congress is acting totally unusually.

[00:20:47] Speaker 00:
That is exactly why this court should stay out of the merits of this case.

[00:20:51] Speaker 02:
But that's the way you want to characterize the issue.

[00:20:53] Speaker 02:
There is a more limited way to characterize the issue that my hypothetical tried to point out.

[00:21:00] Speaker 02:
In other words, legal questions come before courts that may have

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collateral political consequences where members on both sides use the court's decision to support their position.

[00:21:13] Speaker 02:
That's a different issue though.

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This court doesn't have to decide the merits of the impeachment inquiry in order to decide whether or not it has a proper party before it and that party has all the other jurisdictional requirements.

[00:21:30] Speaker 02:
In terms of

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simply what I'll describe, and I know you'll challenge this, a procedural matter of enforcing a subpoena.

[00:21:39] Speaker 02:
For not only testimony, but documents.

[00:21:43] Speaker 00:
No, there's no documents in this case, Your Honor.

[00:21:45] Speaker 00:
Materials.

[00:21:46] Speaker 00:
It's only testimony.

[00:21:48] Speaker 00:
The parties have resolved their disputes over documents.

[00:21:51] Speaker 00:
All this case is about testimony.

[00:21:52] Speaker 02:
So all the documents, including the grand jury transcripts and other matters and related to?

[00:21:58] Speaker 00:
Those are other cases, Your Honor, in this case.

[00:22:01] Speaker 00:
In this case, the McGann case that we're arguing right now.

[00:22:04] Speaker 02:
Well, I don't want to bring in matters outside the record, but we all know there are materials that have not been produced.

[00:22:12] Speaker 00:
Yeah, I'm not just reading that, Your Honor.

[00:22:13] Speaker 02:
All right, so this is still a live issue.

[00:22:17] Speaker 00:
Yeah, perhaps, just not in this case.

[00:22:19] Speaker 02:
No, in this case.

[00:22:20] Speaker 00:
The only, their spin in this case is for testimony of Donald McGahn.

[00:22:23] Speaker 00:
It's not for anything else.

[00:22:28] Speaker 00:
If I could address the jurisdiction of the subject matter, if you have a question, I have a chance too.

[00:22:33] Speaker 00:
I think, as we've been discussing, I think at a minimum, the

[00:22:36] Speaker 00:
standing questions are serious constitutional questions here, given that there are three pages of reigns that support us.

[00:22:42] Speaker 00:
And so then the question is, can you avoid that serious constitutional question?

[00:22:46] Speaker 00:
I think there is an easy way to do so here, because Congress itself has addressed the circumstances where congressional committees can sue to enforce subpoenas.

[00:22:55] Speaker 00:
It has authorized Senate committees to do so, but only in certain circumstances.

[00:23:00] Speaker 00:
It has carved out precisely this sort of subpoena against executive branch officials, and it hasn't authorized the House to sue at all.

[00:23:07] Speaker 00:
I just do not think you can read that statute as allowing the House to circumvent it and to end run all the careful restrictions that are in 1365.

[00:23:16] Speaker 00:
And if I could just expand on that for a moment.

[00:23:19] Speaker 02:
But why don't you respond to the committee's response to that argument about your statutory exclusion?

[00:23:25] Speaker 00:
So I'm not quite sure, to be honest, which of two different points they're making.

[00:23:29] Speaker 00:
So I'll respond to both.

[00:23:31] Speaker 00:
So at times, they seem to suggest

[00:23:34] Speaker 00:
that 1365 doesn't displace 1331 at all, that you can always just invoke 1331.

[00:23:38] Speaker 00:
That I think is a complete non-starter, because the way 1365 is set up, in order to invoke it, the Senate first has to get full resolution from the Senate, including through a committee process.

[00:23:51] Speaker 00:
You then have to... Why isn't it just belts and suspenders?

[00:23:54] Speaker 05:
You got 1331, there was a question about the amount of controversy, Senate was unsure,

[00:23:59] Speaker 05:
So they just went ahead and did this to... Because it's not belt and spender.

[00:24:03] Speaker 00:
There are limits.

[00:24:04] Speaker 00:
There are careful limits in the statute.

[00:24:06] Speaker 00:
There are limits about when the Senate is authorized to sue.

[00:24:10] Speaker 00:
There are limits about where they can sue.

[00:24:11] Speaker 00:
They can only sue in DDC.

[00:24:13] Speaker 00:
There are limits on the remedies that can be authored.

[00:24:15] Speaker 00:
There's only civil contempt, not criminal contempt.

[00:24:18] Speaker 00:
If you take their position, they can end run to all of that.

[00:24:20] Speaker 00:
The House Judiciary Committee could go without going through the committee process.

[00:24:24] Speaker 00:
They could file suit not in DDC.

[00:24:26] Speaker 00:
Well, that's the House could.

[00:24:27] Speaker 00:
1365 is about the Senate only.

[00:24:30] Speaker 00:
So again, they have two steps to their argument.

[00:24:33] Speaker 00:
Even take the Senate.

[00:24:34] Speaker 00:
On their view today, now that there's no amount of controversy requirement, the Senate presumably could invoke 1331, not go through the committee process, not file suit in DDC, seek criminal contempt,

[00:24:49] Speaker 00:
And just say, oh, I have 1331.

[00:24:51] Speaker 00:
All those limitations in 1365 were very nice, but we're not going to comply with any of that.

[00:24:55] Speaker 00:
That is just not a plausible reading of the statute.

[00:24:59] Speaker 00:
And if there were any doubt about it, and I didn't have a chance to put this into the brief, Your Honor, and I apologize, but I would like, this is the bipartisan statements of the sponsor of the 1996 amendment to 1365.

[00:25:11] Speaker 00:
It's Senator Specter and Levin.

[00:25:13] Speaker 00:
If I could just briefly read it, the citation is 142, congressional record, 19412 and 413.

[00:25:23] Speaker 00:
So this is Senator Specter.

[00:25:25] Speaker 00:
He's talking about 1365.

[00:25:28] Speaker 00:
The intent is to make it clear that judicial enforcement is available when a person is asserting a privilege personal to him or her, but not when the person is asserting a governmental privilege available only to the executive branch.

[00:25:43] Speaker 00:
The purpose is to keep disputes between the executive and legislative branches out of the courtroom.

[00:25:50] Speaker 00:
Here's Senator Levin on the same point.

[00:25:53] Speaker 00:
Section 1365 generally authorizes judicial enforcement of a Senate subpoena, except when a subpoena has been issued to an executive branch official acting in his or her official capacity, an exception that seeks to keep inter-branch disputes out of the courtroom.

[00:26:09] Speaker 00:
There is simply no doubt that Congress did not want

[00:26:13] Speaker 00:
The Senate to be able to end wrong the careful limitations in that statute and file suit under 1331 And I think they largely agree because ultimately where they fall back on is the point that this is about the Senate Not about the house and that I think just folds even less water because the notion that when Congress gave the Senate limited authority to suit

[00:26:33] Speaker 00:
and gave the House no authority to sue, that somehow means that the House has more authority to sue, turns the statute on its head.

[00:26:40] Speaker 00:
And if there were any doubt about it, there's the conclusive reputation of it, is this court in 1981, it's the application for permanent investigation of subcommittees, it's the case we cited in our briefs, this court said that prior to 1978, prior to the 1365 statute being enacted,

[00:26:58] Speaker 00:
Congress had only two means to enforce its subpoenas.

[00:27:02] Speaker 00:
It could ask the executive to bring criminal contempt, or it can invoke its own inherent civil contempt.

[00:27:09] Speaker 00:
That's exactly, by the way, what the Senate report says.

[00:27:11] Speaker 00:
The Senate reports that are also cited in our brief, if you look at page 16 of that Senate report, when it talks about the need for the statute, it says the exact same thing, that there were only two means of enforcing it.

[00:27:22] Speaker 00:
Their argument that somehow lurking in the background, unbeknownst to everyone,

[00:27:27] Speaker 00:
was this floating grant of jurisdiction and cause of action under 1331 just has no support.

[00:27:34] Speaker 00:
That is just not how anyone in Congress thought these statutes worked together.

[00:27:39] Speaker 00:
And at a minimum, at a minimum, it is unclear.

[00:27:43] Speaker 05:
Does your argument signal that we should look forward to future discussions from the Justice Department about legislative history?

[00:27:50] Speaker 05:
A new day has arrived?

[00:27:52] Speaker 00:
We think it is clear on the face of the statute, Your Honor, that what Congress was trying to do was carve off these suits.

[00:27:59] Speaker 00:
And their suggestion that there was some other mythical purpose is belied by the legislative history.

[00:28:04] Speaker 00:
But the only point I was making was, at a minimum, there's ambiguity here.

[00:28:09] Speaker 00:
And if there's ambiguity about whether there's statutory jurisdiction to begin with, and there's a serious constitutional question about whether it would be permissible, what this court should do as a matter of constitutional avoidance and judicial restraint is to hold that they don't have statutory authority to sue.

[00:28:22] Speaker 00:
And then what is the result?

[00:28:24] Speaker 00:
The result is that if Congress wants a committee to sue, Congress can pass a statute.

[00:28:29] Speaker 00:
And if ever there was a party who can't complain about being forced to ask Congress to pass legislation, it is the House Judiciary Committee.

[00:28:36] Speaker 00:
They are part of the Congress.

[00:28:38] Speaker 00:
If they have political support to authorize this lawsuit, they can pass a statute.

[00:28:43] Speaker 02:
It takes two.

[00:28:45] Speaker 00:
That's exactly right, Your Honor.

[00:28:46] Speaker 00:
That is a feature, not a bug.

[00:28:49] Speaker 00:
the Supreme Court has made clear that the point of bicameralism and presentment is precisely to prevent the one House of Congress from acting rationally.

[00:28:58] Speaker 02:
Yes, but you're listing remedies that require cooperation.

[00:29:01] Speaker 02:
And the whole thesis that you're presenting to the court is this is total non-cooperation, and the courts ought to stay out of it.

[00:29:09] Speaker 00:
My point is there are serious Article III questions about whether the House should be able to sue.

[00:29:15] Speaker 00:
And before this court resolves those, and before the House committee can force this court to resolve them, at a minimum, Congress as a whole should actually want this court to resolve them.

[00:29:25] Speaker 00:
And there's a good reason for that, by the way, Your Honor, and over and above judicial restraint.

[00:29:30] Speaker 05:
There are good reasons.

[00:29:31] Speaker 05:
Would 1365 be constitutional if it didn't have the exception for governmental privileges?

[00:29:37] Speaker 00:
So again, Your Honor, the broadest version of our argument is whether or not they're suing an inter-branch dispute or private parties, we don't think they have Article III standing.

[00:29:46] Speaker 00:
We think it is particularly clear that they don't have Article III standing if they're suing the executive branch in a purely inter-branch dispute.

[00:29:53] Speaker 00:
But the point I was going to make was the reason why this matters, it's not just a matter of conditions.

[00:29:58] Speaker 05:
And maybe you answer it if I missed it.

[00:30:00] Speaker 05:
Would 1365 be constitutional?

[00:30:02] Speaker 05:
I'm trying to understand your

[00:30:03] Speaker 05:
your reading of 1365.

[00:30:04] Speaker 05:
So this is a hypothetical question, I realize that.

[00:30:08] Speaker 05:
But if 1365 did not have the exception for governmental privileges... It would be more unconstitutional.

[00:30:17] Speaker 00:
It would be more unconstitutional.

[00:30:19] Speaker 05:
More unconstitutional than what?

[00:30:20] Speaker 00:
Than what it is right now, which is it only allows them to sue private parties, right?

[00:30:24] Speaker 05:
And so it's not an intra-branch dispute, but you still have the point that they're- I'm sorry, so you think it's unconstitutional as it is?

[00:30:30] Speaker 00:
Yes, because we don't- it's still an institutional injury.

[00:30:32] Speaker 00:
It's not a private right.

[00:30:34] Speaker 00:
But the only point I was gonna- the last point I'll make on jurisdiction was just to say it's not just a matter of judicial restraint.

[00:30:41] Speaker 00:
It's also a matter of there are good reasons why Congress as a whole might want to not allow these sorts of things.

[00:30:46] Speaker 00:
and it ties into our article through Standing Point, which is, right now disputes over information are resolved through the give and take of the political process.

[00:30:55] Speaker 00:
You go back and forth, and there's accommodations, and all of that is resolved between the branches.

[00:31:01] Speaker 00:
That will all vanish, vanish, if they have authority to file suits, because then the courts will resolve them, and their resolutions will bind for all time.

[00:31:10] Speaker 05:
And moreover, that's not quite right.

[00:31:12] Speaker 05:
I mean, 1365 has been around for,

[00:31:14] Speaker 05:
quite a while, and I have some personal experience with the statute, and lots of accommodations were made over executive privilege issues.

[00:31:22] Speaker 00:
No, see, that's the critical point, Your Honor.

[00:31:23] Speaker 00:
They're 1365 because, as far as out the executive branch, they don't have stability to sue over executive branch disputes.

[00:31:30] Speaker 00:
That's why they continue to be resolved in the political branch.

[00:31:33] Speaker 00:
That's Senator Spector and Senator Levinson.

[00:31:34] Speaker 05:
So that's why, in my hypothetical, take that language out.

[00:31:37] Speaker 05:
It makes it worse, right?

[00:31:38] Speaker 05:
I misunderstood.

[00:31:39] Speaker 00:
And this isn't just some hypothetical.

[00:31:41] Speaker 00:
The day after the district court in this case ruled, the day after, they immediately filed another lawsuit over a different set of subpoenas.

[00:31:50] Speaker 00:
If this court authorizes standing in cause of action and starts adjudicating the merits of inter-branch disputes over information, it will never end.

[00:31:58] Speaker 00:
There will be case after case after case.

[00:32:01] Speaker 00:
And this court will be in the business of resolving disputes between the branches over information.

[00:32:06] Speaker 00:
It won't be good for the courts.

[00:32:08] Speaker 00:
And it frankly won't be good for either of the political branches, because sometimes the House will lose some of those cases.

[00:32:14] Speaker 00:
And then they will have less power than they had before.

[00:32:17] Speaker 00:
That is why it makes it.

[00:32:18] Speaker 00:
That is why Senator Specter and Senator Levin quite reasonably said, we want to keep these disputes out of the courts and keep them within the political branches.

[00:32:27] Speaker 00:
That is the separation of powers alone that underlies all of this.

[00:32:31] Speaker 02:
Of course, there may be another motivation to that view of the senators, but I won't go there.

[00:32:36] Speaker 00:
Well, I will note it was bipartisan, Your Honor.

[00:32:38] Speaker 00:
It was Senator Specter and Leonard.

[00:32:39] Speaker 02:
But they're senators.

[00:32:42] Speaker 00:
Yes.

[00:32:43] Speaker 02:
Asserting their individual and the Senate's power keep the courts out.

[00:32:48] Speaker 02:
We're familiar with that.

[00:32:49] Speaker 00:
Yes, that's my point.

[00:32:50] Speaker 00:
That is exactly my point, Your Honor.

[00:32:51] Speaker 02:
But I'm saying the motivation may be

[00:32:54] Speaker 00:
I think it well may be their point, right?

[00:32:56] Speaker 02:
The whole point is they're political actors and they want to have... Judge Griffith keeps trying to push you to this constitutional question before us and you want to come back to this and that's what I'm saying is the department now looking, picking out its friends in legislative history.

[00:33:11] Speaker 00:
Look, Your Honor, I think my only point is that on the face of the statute it cars off

[00:33:15] Speaker 00:
disputes against the executive branch, I think that is for good and sensible reasons.

[00:33:19] Speaker 00:
And the legislative history confirms those good and sensible reasons that you don't want courts resolving these political issues.

[00:33:25] Speaker 00:
My final point is on cause of action, Your Honor, which is simply that even if you don't think that the statute actually displaces their jurisdiction, at a minimum, they have to actually have an affirmative ability to sue.

[00:33:37] Speaker 00:
And they have said that their affirmative ability to sue is an implied cause of action in equity.

[00:33:43] Speaker 00:
And there are two fundamental problems with that.

[00:33:45] Speaker 00:
The first is, we know from the Supreme Court's decision in Grupo Mexicano that implied causes of action and equity have to be traditionally justified.

[00:33:53] Speaker 00:
And they have no history of a suit by a congressional committee to enforce a subpoena.

[00:33:58] Speaker 00:
And in fact, the Supreme Court in the leave decision said that there's a wide divergence between the ability of the suit to enforce a subpoena and the ability to issue the subpoena.

[00:34:07] Speaker 00:
So they just can't meet this show and require for equity.

[00:34:10] Speaker 00:
And then the second is,

[00:34:13] Speaker 00:
Congress has essentially, even if you don't think Congress has displaced jurisdiction, Congress's decision to pass a statute that creates carefully limited causes of action for the Senate, surely this court shouldn't invent a cause of action for the House.

[00:34:27] Speaker 00:
At a minimum, again, Congress should have to speak on this before this court is thrust into the middle of these sort of political disputes.

[00:34:36] Speaker 00:
Your Honor, I know it's well over my time.

[00:34:38] Speaker 00:
I'm happy to sit down.

[00:34:39] Speaker 03:
I've got a question for you.

[00:34:40] Speaker 03:
It may be pedestrian.

[00:34:43] Speaker 03:
Does anybody have standing?

[00:34:44] Speaker 03:
You said no.

[00:34:46] Speaker 03:
The lawyer in me has wondered from the beginning why there's no attorney-client privilege in this case.

[00:34:53] Speaker 03:
And you may be waiting until it either the separation of powers sweeps it or you're waiting until the questions are asked and he can deny or refuse to answer based on attorney-client.

[00:35:09] Speaker 03:
But just like

[00:35:13] Speaker 03:
you answered my question, no one has standing.

[00:35:16] Speaker 03:
Is it your position that this goes to the, and I don't mean lowest in the sense that any federal employee is low, but the most menial type of employee?

[00:35:30] Speaker 03:
I know 1365 talks not only about officers, but employees.

[00:35:35] Speaker 00:
So it depends which

[00:35:37] Speaker 00:
aspect of our argument you're asking about, Your Honor, our standing and our jurisdictional and our cause of action arguments, all of those apply to all executive branch officers.

[00:35:45] Speaker 00:
There's no basis for distinguishing.

[00:35:47] Speaker 00:
Our merits argument, if the court reaches it, which we don't think it should, that is very much not.

[00:35:52] Speaker 00:
It is very much limited to the close advisors to the president, those who function basically as alter ego.

[00:35:59] Speaker 03:
But I didn't think you even mentioned attorney-client in the

[00:36:02] Speaker 00:
Well, we have a threshold argument, which is that they can't subpoena the close advisers and creeds and all, but if the court were to disagree and if Mr. McGann were to have to testify, of course, many of the questions, if not the predominance of the questions they would ask him, he would have a, not just attorney Klein, but a bunch of executive privilege-based objections to the concrete questions.

[00:36:24] Speaker 00:
But we're not even at that point, Your Honor, because we don't think they have the authority to subpoena them at all, and we don't think they have the authority to sue to enforce that subpoena.

[00:36:31] Speaker 03:
Well, again, the lawyer in me says don't minimize attorney-client privilege.

[00:36:37] Speaker 03:
All right.

[00:36:37] Speaker 00:
There are no further questions, Honor.

[00:36:38] Speaker 00:
I appreciate that.

[00:36:39] Speaker 03:
We'll give you some time to reply.

[00:36:41] Speaker 03:
Miss Barbaro?

[00:36:47] Speaker 01:
May it please the court, Megan Barbaro on behalf of the Judiciary Committee of the U.S.

[00:36:52] Speaker 01:
House of Representatives.

[00:36:54] Speaker 01:
Your Honors, the department invokes separation of powers principles to argue that the committee does not have the right to come to court to seek enforcement of its valid subpoena, as would every other party that issued a subpoena.

[00:37:10] Speaker 01:
And they invoke separation of powers arguments

[00:37:14] Speaker 01:
But if this court were to hold that the committee cannot get a judicial remedy to obtain the information it seeks in exercising its Article 1 authorities, that would shift the balance of power significantly in favor of the executive branch and would leave the president the arbiter of this.

[00:37:32] Speaker 05:
What about the remedies that your friend discussed?

[00:37:34] Speaker 05:
Congress has plenty of remedies.

[00:37:36] Speaker 05:
Appropriations power, confirmation power, impeachment power.

[00:37:40] Speaker 05:
There are lots of remedies that have been used for a long time.

[00:37:43] Speaker 05:
What's wrong with those?

[00:37:45] Speaker 01:
Your Honor, the injury here is a deprivation of information to which the committee is entitled in exercising its impeachment and other Article 1 functions.

[00:37:55] Speaker 01:
It is true that the House has other remedies available to it, but as the OLC recognized in 1984 and 1986, those other remedies are not effective in obtaining a remedy for this specific injury.

[00:38:09] Speaker 01:
That is, getting information in a timely fashion

[00:38:12] Speaker 01:
that the committee can use for its urgent priorities.

[00:38:15] Speaker 05:
So I have a threshold question for you, if I might.

[00:38:20] Speaker 05:
Even if we were to agree with you that the President's claim to absolute testimony immunity is, in this case, is extravagant, I wonder why we should be involved in this dispute at all, given the President's posture.

[00:38:36] Speaker 05:
But by what authority are you now pressing this appeal?

[00:38:40] Speaker 05:
Are you here

[00:38:41] Speaker 05:
to protect the legislative oversight authority of the House Judiciary Committee or are you here because of the impeachment?

[00:38:50] Speaker 05:
Because arguably, our analysis of an immunity claim would differ based on whether you're here wearing the legislative oversight hat or whether you're wearing the impeachment hat.

[00:39:00] Speaker 05:
The articles of impeachment are all about the controversy over Ukraine.

[00:39:06] Speaker 05:
McGahn was long gone from the White House by then.

[00:39:10] Speaker 05:
He's a witness to possible obstruction of justice by the President, but the House has chosen not to press that matter.

[00:39:17] Speaker 05:
The only possible relevance McGahn would have to the impeachment is if you're here to tell me that the House may yet approve another article of impeachment.

[00:39:28] Speaker 05:
Is that the position of the Committee and the Speaker, that there may yet be another article of impeachment to which Mr. McGahn's testimony would be pertinent?

[00:39:39] Speaker 01:
Your honor, there's a lot in that question, and I want to make sure that I answer all of it.

[00:39:43] Speaker 01:
The short answer to the first part of the question is that we are here pursuing this case both for the legislative and oversight purposes, and we all agree that the case is not moved because of those priorities that the committee has.

[00:39:56] Speaker 05:
But we are also here- If you are over here on legislative oversight,

[00:40:00] Speaker 05:
we wouldn't have spent the holidays on an expedited basis, right?

[00:40:04] Speaker 05:
You're here because of the impeachment, so.

[00:40:05] Speaker 01:
That is correct, and we remain here because of the impeachment, and I want to be very careful about how I answer the question in terms of the committee's continuing interest in testimony from Mr. McGann for the impeachment purposes, and also then walk through how it's relevant to the existing articles of impeachment and the ongoing investigation.

[00:40:28] Speaker 01:
And if we could turn in our supplemental brief on page seven, the committee laid out the position of the committee as blessed by the House.

[00:40:37] Speaker 01:
The McGann's testimony remains central to the committee's ongoing investigation into the president's obstructive conduct.

[00:40:45] Speaker 01:
And if his testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the existing articles, the committee will proceed accordingly, including if necessary, by considering whether to recommend additional articles.

[00:41:02] Speaker 05:
So you're saying there may be new articles of impeachment coming?

[00:41:08] Speaker 05:
Could be.

[00:41:09] Speaker 05:
That's a possibility.

[00:41:10] Speaker 05:
The two that we have, you're saying, and you're saying this on the authority of the Speaker.

[00:41:15] Speaker 05:
You have authority to say this from the Speaker of the House, that there may be yet other articles of impeachment coming.

[00:41:23] Speaker 01:
Your Honor, I am here saying exactly what we said in our supplemental brief, which was said with the full authority of the House, which is, and just taking a step back, as a matter of first principles, the fact that the President has been impeached by the House on two articles does not mean that the House could not, if Mr. McGann testifies and there's additional relevant evidence of misconduct, use that information both, and we can get to how that's relevant to the existing articles,

[00:41:51] Speaker 01:
for its decision making with respect to how to proceed in the current impeachment for any trial in the Senate for which that evidence is relevant and also as we said in the supplemental brief for considering whether to recommend additional articles.

[00:42:08] Speaker 05:
That Mr. McGann's possible testimony is only relevant in the

[00:42:12] Speaker 05:
impeachment trial with the president articles of impeachment.

[00:42:15] Speaker 05:
How?

[00:42:16] Speaker 05:
How is it?

[00:42:16] Speaker 05:
He was gone.

[00:42:18] Speaker 05:
The two articles are all about the Ukraine controversy.

[00:42:21] Speaker 05:
He's gone from the White House by then.

[00:42:23] Speaker 01:
Your Honor, the second article of impeachment relates to obstruction of Congress.

[00:42:28] Speaker 01:
And if we look, this is House Resolution 755.

[00:42:31] Speaker 05:
Obstruction of Congress in the Ukraine controversy.

[00:42:35] Speaker 01:
That's correct with respect to the specific misconduct in that article.

[00:42:40] Speaker 01:
But the article also refers to the president's previous efforts to undermine federal governmental investigations into foreign interference in United States elections.

[00:42:53] Speaker 01:
And as the committee made clear in its report, that that pattern of misconduct

[00:43:00] Speaker 01:
is relevant to consideration of this second article, including whether the remedy of removal is appropriate remedy.

[00:43:09] Speaker 01:
And that's outlined, as we detailed in our brief, in the Judiciary Committee report that accompanied these articles of impeachment.

[00:43:16] Speaker 01:
And in addition, of course, if McGahn came in to testify, and he was, as we've laid out, an eyewitness to several

[00:43:24] Speaker 01:
of the allegations of the president's misconduct and interference.

[00:43:29] Speaker 05:
So it's a pattern of practice argument you would be making, right?

[00:43:33] Speaker 01:
It is the pattern of misconduct that would be relevant.

[00:43:37] Speaker 01:
And again, that is information that the Judiciary Committee is continuing to pursue.

[00:43:43] Speaker 01:
That is part of why we have pressed this appeal, asked this court to move expeditiously, because that information would be relevant to the committee and leaders in the House in making decisions about how to proceed.

[00:43:55] Speaker 01:
And that remains true given the current state of affairs with the Articles of Impeachment.

[00:44:01] Speaker 01:
And we regardless again, we are here for both those impeachment purposes and also because the committee from the outset has been considering important remedial legislation, including to govern interactions between

[00:44:16] Speaker 01:
the White House and DOJ and the FBI, including to govern foreign offers of contributions to political action committees and individuals in upcoming elections.

[00:44:27] Speaker 01:
Those are legislative priorities that are also time-sensitive.

[00:44:32] Speaker 01:
We have expedited, for example, the Mazars' appeal, which was not an impeachment subpoena,

[00:44:38] Speaker 01:
based on legislative and oversight priorities.

[00:44:41] Speaker 01:
And for all those reasons, we urge the court to rule expeditiously.

[00:44:45] Speaker 02:
I have a technical question.

[00:44:48] Speaker 02:
You heard counsel say that the subpoena only seeks testimony.

[00:44:55] Speaker 02:
I read both the complaint and the subpoena talking about testimony and evidence, talking about creating a false record.

[00:45:03] Speaker 02:
I read that to be more than oral testimony.

[00:45:07] Speaker 02:
Am I correct or did the committee, as counsel argued this morning, only seek, again, testimony, oral testimony?

[00:45:16] Speaker 01:
Your Honor, you are correct that the subpoena sought both Mr. McGann's testimony and related documents, all of which the schedules attached to the subpoena.

[00:45:26] Speaker 01:
Now, we did reach an agreement with the department with respect to the documents.

[00:45:33] Speaker 01:
I'm not sure the status of that production, but that the document aspect of this, as the district court noted, is no longer the issue in the appeal.

[00:45:43] Speaker 01:
It's related to having McGahn appear and testify and provide testimonial evidence.

[00:45:49] Speaker 02:
Well, you reached agreement.

[00:45:51] Speaker 02:
Was it a stipulation that the committee would not seek

[00:45:56] Speaker 02:
any other documents were the testimony to reveal the likelihood of other documents relevant to that testimony?

[00:46:05] Speaker 02:
That's what I'm trying to understand here.

[00:46:08] Speaker 01:
The short answer is no.

[00:46:09] Speaker 01:
I believe that it was an accommodation such that they would produce the documents that had been sought.

[00:46:15] Speaker 02:
I won't pursue this, but the record speaks for itself.

[00:46:18] Speaker 02:
I don't know what the terms of this private agreement, not private, but accommodation,

[00:46:26] Speaker 01:
There was significant discussion of the Raines case and I would like to start there with respect to standing because we do fundamentally disagree about the meaning and import of the Raines decision.

[00:46:43] Speaker 01:
The holding in that case, as the Supreme Court has made clear in later cases,

[00:46:48] Speaker 01:
is that individual legislators, and in that case it was six members of Congress who had lost the vote on an act, did not have standing.

[00:46:57] Speaker 01:
That is, they did not have a concrete and particularized injury to assert an institutional interest in the dilution of legislative power, which was an interest that belonged to Congress as a whole.

[00:47:09] Speaker 05:
What do you do with your friend's argument that the reasoning supporting that holding is much broader than you maintain?

[00:47:16] Speaker 01:
And the reasoning, we heard several times about the three pages of history that's discussed in Reince, but those historical examples relate to the lack of challenges between the executive and legislative branches about the constitutionality of duly enacted statutes that have been passed through bicameralism and presentment.

[00:47:36] Speaker 01:
This is a different kind of case.

[00:47:38] Speaker 05:
But that's not what the discussion talks about.

[00:47:40] Speaker 05:
The discussion talks about that diminution of power by one branch of the government is not a basis for Article III standing.

[00:47:49] Speaker 05:
The facts of the cases that Chief Justice Rehnquist listed in his Parade of Horribles

[00:47:56] Speaker 05:
may have involved constitutionality of the statute, but the reasoning that the Chief Justice, was he Chief Justice of the time?

[00:48:03] Speaker 05:
Yeah, Chief Justice of the time used, I think is broader than that.

[00:48:08] Speaker 05:
So tell me about the reasoning.

[00:48:09] Speaker 05:
His reasoning talks about diminution in power of a branch of government is not sufficient grounds to

[00:48:20] Speaker 05:
Satisfy Article 3 standing.

[00:48:21] Speaker 05:
That's a problem for you.

[00:48:23] Speaker 01:
A few responses, Your Honor.

[00:48:26] Speaker 01:
First, this isn't about the diminution of power of a branch of government.

[00:48:30] Speaker 01:
This is a case about a subpoena that the committee issued.

[00:48:34] Speaker 05:
The reasoning in Reince is going toward... I thought your whole argument was that the injury that the House Judiciary Committee has suffered is frustrating its ability to carry out its investigation.

[00:48:46] Speaker 05:
Is it given the power that you say the Constitution gives to it?

[00:48:51] Speaker 01:
To clarify, that is a power that is vested in the House and delegated to this committee.

[00:48:57] Speaker 01:
This committee is the plaintiff in this case.

[00:48:59] Speaker 01:
The question for standing purposes is trying to determine whether the plaintiff is asserting an injury

[00:49:06] Speaker 01:
that is a particularized injury to that plaintiff.

[00:49:09] Speaker 01:
That is what distinguishes the committee in this case, which has issued a subpoena and is entitled to information in response to that subpoena from the plaintiffs in Reins who were asserting an interest that belonged to the legislature as a whole.

[00:49:26] Speaker 01:
This is a case where the plaintiff, in the words of the Supreme Court in later cases, there is a match between the plaintiff and the injury asserted.

[00:49:35] Speaker 05:
And Reigns is certainly... Reigns is about more than just that you're being injured.

[00:49:41] Speaker 05:
There are only certain types of injuries that are justiciable, right?

[00:49:45] Speaker 05:
And as I read, as I understand your friend's argument about Reigns, he's saying that the Supreme Court says,

[00:49:52] Speaker 05:
This type of, the type of injury to a branch of Congress that is as amorphous, not as amorphous, that diminishes their power, when they come to the courts to say the executive has done something to diminish our power, that that's not the type of dispute that we're supposed to referee.

[00:50:09] Speaker 05:
We're not an ombudsman over the operations of government, as I think Justice Frankfurter may have said in Youngstown or something, but that's not our job.

[00:50:18] Speaker 01:
A few responses, Your Honor.

[00:50:21] Speaker 01:
It is important to return to the particular facts of this case, because the courts have long been adjudicating the validity of subpoenas, including subpoenas directed at the president and senior executive branch officials.

[00:50:35] Speaker 01:
That was the case in United States v. Burr that Chief Justice Marshall decided in 1807.

[00:50:40] Speaker 01:
Now, I understand there are additional separation of powers concerns and an overlay of an inter-branch dispute here.

[00:50:48] Speaker 01:
It's a criminal proceeding, right?

[00:50:51] Speaker 01:
That is correct.

[00:50:54] Speaker 05:
Criminal proceedings are also proceedings where the rights of individuals are at stake, but none, I don't think you have any instances where the institutional interest of the Congress is at stake.

[00:51:09] Speaker 05:
has been injured and therefore is cognizable.

[00:51:13] Speaker 01:
Well, as this court recently recognized in the Mazars decision, there is a long history that predates the founding of our nation of legislative subpoenas.

[00:51:23] Speaker 01:
There's no question.

[00:51:24] Speaker 05:
The Mazars is a subpoena to a non-governmental actor, right?

[00:51:28] Speaker 05:
The accountant firm.

[00:51:29] Speaker 05:
But as I understand your friend's argument, I don't need to make it for him, I'm using

[00:51:34] Speaker 05:
get your response to it, is that it's all, this isn't, unlike what the district court said, this isn't a garden variety subpoena enforcement.

[00:51:42] Speaker 05:
This is a dispute over information between two political branches of government.

[00:51:48] Speaker 05:
It's a very different sort of creature than the typical subpoena enforcement.

[00:51:54] Speaker 01:
And in that respect, it's very much like this court's decision in AT&T, which this court understood to be an inter-branch dispute.

[00:52:02] Speaker 01:
That was a case where

[00:52:04] Speaker 01:
a House subcommittee had subpoenaed AT&T for records relating to an FBI wiretap program.

[00:52:10] Speaker 05:
But the problem with AT&T and Senate Select Committee is, and it comes back to the argument about Reigns, if we read Reigns narrowly as you are just to do, then it seems to me that AT&T and Senate Select Committee have some force that we need to account for.

[00:52:26] Speaker 05:
If your friend is right that Reigns is broader than that,

[00:52:30] Speaker 05:
then AT&T and Senate Select Committee are suspect.

[00:52:34] Speaker 05:
They are from a day when this Court engaged in some expeditious ventures into legislative standing.

[00:52:42] Speaker 05:
Those, as I said, jokingly for the bad old days, have been changed.

[00:52:46] Speaker 05:
Isn't that right?

[00:52:46] Speaker 05:
Isn't that the issue?

[00:52:48] Speaker 05:
The issue is if we agree with you that Reign should be read narrowly, then AT&T and Senate Select Committee may tell us there is standing here.

[00:52:58] Speaker 05:
If we disagree with you,

[00:52:59] Speaker 05:
And we say that what Reins was really about, the reasoning of Reins, was to warn us against getting involved, as Justice Souter said in his concurrence, getting involved in these disputes, then you lose.

[00:53:10] Speaker 01:
If I could push back on the premise of the question, we are not advocating a narrow reading of brains.

[00:53:15] Speaker 01:
We are advocating a reading of brains that is consistent with the holding in that case, which is in the last paragraph of the opinion, is also consistent with the reasoning, which relates to different types of inter-branch disputes and the lack of a history about

[00:53:30] Speaker 01:
disputes over the constitutionality of enacted statutes.

[00:53:35] Speaker 01:
The question in Reins was whether the plaintiff was the correct plaintiff to assert the injury there.

[00:53:40] Speaker 01:
That is the question in every Article III standing case.

[00:53:44] Speaker 01:
The Supreme Court has characterized Reins that way in its later decisions.

[00:53:50] Speaker 01:
We know it mattered that it was individual legislators at issue in Reins.

[00:53:55] Speaker 01:
And nothing about reigns overrules this court's very clear holding in AT&T.

[00:54:00] Speaker 05:
Doesn't Chenoweth suggest that it does?

[00:54:03] Speaker 01:
Chenoweth was a case about, again, members asserting an amorphous dilution of legislative power.

[00:54:13] Speaker 01:
I keep going back to this, but it matters here, that this is a subpoena enforcement case.

[00:54:19] Speaker 01:
This is the type of dispute that the courts are very familiar with answering.

[00:54:23] Speaker 01:
And even if there are political questions at issue in this case, as we know from the Supreme Court's decision in Zabotowski, even if there are political issues the courts would gladly avoid.

[00:54:35] Speaker 01:
It is the duty of the court in a case that is otherwise justiciable, and we've submitted that this one clearly is consistent with this court's precedent and a long history of practice between the branches, to say what the law is.

[00:54:48] Speaker 01:
That is what we are asking the court to do is to

[00:54:51] Speaker 01:
issue a ruling that Mr McGann who again

[00:54:54] Speaker 01:
He is a private citizen.

[00:54:56] Speaker 01:
He's a former presidential aide.

[00:54:59] Speaker 01:
To the extent of concern is that this dispute is not sufficiently particularized because there's not individual rights at issue.

[00:55:08] Speaker 01:
The committee has subpoenaed a private citizen to appear and testify and provide relevant evidence.

[00:55:16] Speaker 01:
He's in many respects similar to AT&T in that respect.

[00:55:21] Speaker 01:
The executive has asserted

[00:55:24] Speaker 01:
an absolute immunity defense that is unfounded in the law and we are asking the court to resolve that issue so that the committee can expeditiously obtain the information it needs in response to the subpoena.

[00:55:37] Speaker 01:
Now I'd like to talk as well unless there are further questions on the standing about subject matter jurisdiction and going to the plain language of section 1331 which makes it very clear that there is jurisdiction

[00:55:50] Speaker 01:
over the committee suit in this case, which arises under the Constitution and laws of the United States, as this court said in AT&T in 1976.

[00:56:00] Speaker 01:
Their argument is essentially an implied repeal argument.

[00:56:05] Speaker 01:
To the extent they're looking at legislative history or other factors, we know that the courts disfavor implied repeals, particularly in the jurisdictional context.

[00:56:16] Speaker 01:
Nothing about 1365

[00:56:19] Speaker 01:
repeals jurisdiction for House subpoenas under 1331.

[00:56:23] Speaker 01:
Because, of course, 1365 deals only with Senate subpoenas.

[00:56:28] Speaker 01:
And whatever limitations are in 1365 with respect to the Senate are neither here nor there with respect to whether the House has jurisdiction and continues to have jurisdiction under this Court's reasoning in AT&T over House subpoena enforcement actions.

[00:56:49] Speaker 01:
If there are questions about 1365, I'm happy to address those, but otherwise I'll just briefly say that there is... What do you do with your friend's argument based on legislative history, the statements of Senator Specter and Senator Levin?

[00:57:05] Speaker 01:
Your Honor, in 1996 the Senate was attempting to clarify 1365 with respect to a specific issue that had arisen for executive branch officials who asserted personal privileges to make clear that those were covered by 1365 and there was jurisdiction.

[00:57:27] Speaker 01:
To the extent there are statements by individual senators in the legislative history about

[00:57:33] Speaker 01:
what that clarifying amendment meant.

[00:57:36] Speaker 01:
Again, that doesn't have anything to do with House subpoena enforcement disputes and any limitations that the Senate understood might be imposed by 1365.

[00:57:46] Speaker 01:
Certainly, there's no basis for imposing those on the House, particularly where what the government, what the department is asking is that this court recognize an implied repeal of a jurisdictional grant over

[00:58:02] Speaker 01:
jurisdiction over House subpoenas, and those are certainly disfavored, and any ambiguous legislative history is not enough to overcome the burden that they would have to meet to find the 1365 strict jurisdiction that would otherwise exist under 1331.

[00:58:18] Speaker 02:
That's a technical point.

[00:58:19] Speaker 02:
I mean, Congress is part of the government, too.

[00:58:22] Speaker 02:
This is just the Department of Justice's argument in support of McGahn's position.

[00:58:28] Speaker 02:
Correct.

[00:58:30] Speaker 02:
Instead of the government.

[00:58:31] Speaker 01:
I tried to catch myself when I would, I had previously worked at the Department of Justice, I'm still in that habit, but I'm adjusting to my new role.

[00:58:43] Speaker 01:
So I apologize for misspeaking.

[00:58:46] Speaker 01:
And on the cause of action question, two points there.

[00:58:51] Speaker 01:
One is my friend on the other side mentioned Grupo Mexicano.

[00:58:56] Speaker 01:
That case is about a very different circumstance where the question was whether a court sitting in equity

[00:59:03] Speaker 01:
could exercise jurisdiction that had historically not existed at all over real property before there had been a judgment.

[00:59:14] Speaker 01:
The facts are very specific, the holding is very specific in that case.

[00:59:17] Speaker 02:
So as I understand the department's argument here is, and maybe I'm putting words in counsel's mouth, but he's willing to acknowledge that

[00:59:30] Speaker 02:
these cases may be distinguishable on factual grounds.

[00:59:34] Speaker 02:
But I understand his argument to be that the court in Reims and elsewhere basically was laying down a path for the courts to be very wary of entering this type of dispute.

[00:59:52] Speaker 02:
And it gave the reasons why.

[00:59:55] Speaker 02:
And so to the extent Reims signals

[00:59:58] Speaker 02:
that for the courts, almost saying don't try it because here's what's going to happen if you do.

[01:00:06] Speaker 02:
Then the question, it seems to me, is where Rain says, well, there may be factors that work nevertheless in favor of the courts entering this area.

[01:00:17] Speaker 02:
And when we look at those factors, such as the history of what's been going on, counsel makes the point, you can't find anything like this.

[01:00:27] Speaker 02:
And of course,

[01:00:28] Speaker 02:
Judge Griffith's question points out, well, maybe there's never been a situation like this, because in the past, the Department of Justice, the President, and the Attorney General have not interposed objections to supplying information to the committees.

[01:00:49] Speaker 02:
I think that's the hurdle that we're trying to address here, because there are fine arguments, and I realize that

[01:00:59] Speaker 02:
courts can evolve, but nevertheless, Reins is a fairly broad statement, and it says, it doesn't close the door completely.

[01:01:08] Speaker 02:
I don't mean it to close the door completely to the extent the department is arguing this morning, but it's very strong language, isn't it?

[01:01:16] Speaker 02:
And we can parse these cases to distinguish precisely who the plaintiff is and that type of thing, and to that extent, the committee can argue

[01:01:27] Speaker 02:
Well, it's an open question before this court, and it's an open question if and when the case goes to the Supreme Court.

[01:01:36] Speaker 02:
But that's the response we're trying to get from you.

[01:01:42] Speaker 01:
A few responses, Your Honor.

[01:01:44] Speaker 01:
One, with respect to the question of how this has worked between the branches, I would direct the court to page 48 of our brief.

[01:01:52] Speaker 01:
where we point to a number of examples where, contrary to what the department has said, legislative subpoenas were issued to senior members of the executive branch, including White House counsel and former White House counsel who appeared and testified on their subpoena.

[01:02:10] Speaker 02:
voluntarily, as I understand the department's position.

[01:02:14] Speaker 01:
Voluntarily in the sense that we didn't have to bring a court action to get a judicial judgment requiring them to comply with a valid congressional subpoena.

[01:02:24] Speaker 05:
But isn't that the whole point of your friend's argument?

[01:02:28] Speaker 05:
That you didn't have to do that, and you got it.

[01:02:31] Speaker 05:
And that in the place of a court coming in and picking a winner or loser,

[01:02:37] Speaker 05:
the nation's history has been negotiation, compromise, accommodations.

[01:02:43] Speaker 05:
It's messy.

[01:02:44] Speaker 05:
It takes time.

[01:02:45] Speaker 05:
It involves all these tools that you can't use in the court.

[01:02:50] Speaker 05:
But that's what the separation of powers means.

[01:02:55] Speaker 05:
Isn't that his very point?

[01:02:56] Speaker 01:
And we would have been happy to have reached an accommodation in this case because it would have meant

[01:03:02] Speaker 01:
that Mr. McGann would have already shown up and testified and provided the information.

[01:03:08] Speaker 01:
Cut the appropriations.

[01:03:08] Speaker 05:
Cut the appropriations.

[01:03:09] Speaker 05:
Stop.

[01:03:10] Speaker 05:
Get the Senate to stop confirming judges.

[01:03:13] Speaker 05:
Make it an article of impeachment.

[01:03:17] Speaker 05:
You're not without remedy here.

[01:03:19] Speaker 05:
The question is whether you, whether the Constitution allows you to pull

[01:03:26] Speaker 05:
And I'm just channeling Justice Souter's concurrence right now.

[01:03:29] Speaker 05:
Whether the Constitution allows you to pull the courts into this dispute that historically has been fought out, duped out, between the political branches.

[01:03:40] Speaker 05:
That's, to me, that's the tough question.

[01:03:44] Speaker 05:
And what Reigns has to say about that.

[01:03:46] Speaker 01:
That's it.

[01:03:46] Speaker 01:
Right.

[01:03:46] Speaker 01:
And I understand the concern.

[01:03:49] Speaker 01:
The fact that there are other remedies that would be available to Congress I think really underscores that Congress

[01:03:57] Speaker 01:
has the power, the Supreme Court has long recognized this power, there is no dispute, to issue subpoenas and obtain compliance with those subpoenas.

[01:04:06] Speaker 01:
We have come to this Court seeking an orderly and effective resolution of this dispute, including about a core legal question on absolute immunity that is the type of legal question that the Court

[01:04:18] Speaker 01:
has answered in the past that is traditionally justiciable, capable of judicial resolution.

[01:04:26] Speaker 01:
It's been answered in our favor and against the government's favor every time an analogous claim has been raised.

[01:04:33] Speaker 01:
Notwithstanding that, we are in a

[01:04:36] Speaker 01:
a situation now where there has been an unprecedented refusal to comply by this administration with valid congressional subpoenas and the committee is continuing in an attempt to exercise its constitutional functions and do its job under article one.

[01:04:54] Speaker 01:
to obtain orderly resolution of this dispute.

[01:04:57] Speaker 01:
And that is why we are here.

[01:04:58] Speaker 01:
And the core questions in this case are questions that the court is well positioned to resolve.

[01:05:04] Speaker 01:
They relate to whether Mr. McGahn, a former aide and private citizen, is required to comply with a congressional subpoena.

[01:05:12] Speaker 05:
So I understand.

[01:05:12] Speaker 05:
So if we were to affirm the district court, what happens then?

[01:05:17] Speaker 05:
Mr. McGahn shows up before the committee, he's sworn in, he's asked questions, and then

[01:05:24] Speaker 05:
He interposes objections, right?

[01:05:27] Speaker 01:
That is what we would expect to happen.

[01:05:29] Speaker 05:
And what happens then?

[01:05:31] Speaker 05:
He says, I can't speak because I'm a close aide to the president.

[01:05:36] Speaker 05:
There's executive privilege.

[01:05:38] Speaker 05:
What happens then?

[01:05:39] Speaker 01:
I mean, one option, of course, is that if this court were to rule in our favor and reject the absolute immunity defense, that we could reopen the discussion with the department about the appropriate way for the committee to entertain.

[01:05:51] Speaker 05:
But what happens in my hypothetical?

[01:05:52] Speaker 01:
He comes and he invokes executive privilege.

[01:05:54] Speaker 01:
The president has not invoked executive privilege.

[01:05:57] Speaker 01:
With respect to Mr. McGahn, he has only.

[01:05:59] Speaker 05:
What happens if he does?

[01:06:00] Speaker 05:
My hypothetical is that he does.

[01:06:01] Speaker 05:
What happens then?

[01:06:01] Speaker 01:
Right.

[01:06:02] Speaker 01:
And as the district court made clear in her opinion, those questions, while teed up in our complaint, have not

[01:06:08] Speaker 01:
have not been resolved by this opinion.

[01:06:10] Speaker 01:
We're not asking this court for a resolution here.

[01:06:13] Speaker 01:
And any executive privilege claim that was valid and asserted, again, as we've argued in the brief, is another reason to reject the absolute immunity defense, that he doesn't come in and testify at all.

[01:06:23] Speaker 01:
But what happens next?

[01:06:24] Speaker 05:
He comes in.

[01:06:25] Speaker 05:
He asserts executive privilege.

[01:06:27] Speaker 05:
What happens next?

[01:06:29] Speaker 01:
There would be, well, we would, there would be a determination.

[01:06:32] Speaker 05:
If you were the Senate, you couldn't come here.

[01:06:33] Speaker 05:
Right.

[01:06:33] Speaker 05:
If you're the Senate, you couldn't come here to get a resolution in that dispute.

[01:06:37] Speaker 01:
But you're not the Senate, you're the House, you argue that... And we expect, consistent with our complaint and the papers we found in the district court, that we would go back to the district court for a resolution of those questions if and when they were teed up.

[01:06:51] Speaker 01:
But again, if this court were to rule in our favor, we would expect to reopen the accommodations process and hopefully reach a resolution that would allow us to avoid continuing to litigate the case.

[01:07:03] Speaker 01:
And just one final point I wanted to make, if I may,

[01:07:07] Speaker 01:
which is the imbalance in terms of the argument here, particularly on standing, that a committee of the House, exercising its Article I authorities, unlike every other litigant who issues a subpoena, and unlike what I understand the Department of Justice would do if Mr. McGann actually said he would appear and testify, I expect that they would, as they have done in other cases,

[01:07:32] Speaker 01:
relating to our subpoenas that they would go to court to seek to prevent him from doing that.

[01:07:39] Speaker 01:
And in their view, they would have subject matter jurisdiction, a cause of action, and standing to do that.

[01:07:44] Speaker 01:
But they would like to keep the Judiciary Committee out of court from getting a court determination on the same question about the same subpoenas.

[01:07:53] Speaker 01:
There are no further questions.

[01:07:55] Speaker 03:
All right.

[01:07:58] Speaker 03:
Thank you.

[01:07:58] Speaker 03:
Does Mr. Muppet have any time?

[01:08:01] Speaker 03:
I want to take three minutes.

[01:08:02] Speaker 00:
I appreciate that, Your Honor.

[01:08:03] Speaker 00:
I'll try to squeeze three points in the three minutes.

[01:08:06] Speaker 00:
Unstanding, my friend basically wants this court to read Reign's narrowly to its facts and ignore its reasoning, but read AT&T broadly and rely on its lack of reasoning.

[01:08:18] Speaker 00:
As we talked about, we agree the facts of Reign were a case involving individual members, but the reasoning goes much more broadly.

[01:08:24] Speaker 00:
And I don't think that we heard any explanation of why that reasoning doesn't apply here.

[01:08:28] Speaker 00:
There was some suggestion that there is

[01:08:31] Speaker 00:
You know, information is somehow obviously an injury.

[01:08:34] Speaker 00:
Well, take, for example, the examples that were given in Reigns.

[01:08:37] Speaker 00:
Of course, the Tenure of Office Act interfering with the ability of an executive to fire their subordinate would clearly be an injury if it was imposed on a private party.

[01:08:46] Speaker 00:
If Congress called a private CEO, he couldn't fire his subordinate.

[01:08:49] Speaker 00:
Of course, that CEO could sue.

[01:08:51] Speaker 00:
And of course, the legal question was susceptible to resolution.

[01:08:54] Speaker 00:
It was, in fact, in Clinton.

[01:08:56] Speaker 00:
What did all of the work in there?

[01:08:57] Speaker 00:
all of the work was the fact that it was the chief executive, it was the president, not some private party.

[01:09:04] Speaker 00:
Conversely, they emphasize that this is information that Congress needs.

[01:09:09] Speaker 00:
Well, the point is, as Judge Griffith emphasized,

[01:09:12] Speaker 00:
They need the information in furtherance of their legislative prerogatives.

[01:09:16] Speaker 00:
It is only, as Rain said, an injury to official authority or power.

[01:09:20] Speaker 00:
But let me give a very stark and simple example to show why they're wrong about this.

[01:09:23] Speaker 00:
Imagine if someone was stealing property out of Congress, just going in and stealing computers.

[01:09:29] Speaker 00:
They couldn't file a lawsuit to stop that.

[01:09:32] Speaker 00:
They couldn't file a conversion action or a criminal action.

[01:09:34] Speaker 00:
What they would have to do is come to the executive branch and ask the Department of Justice to file those lawsuits.

[01:09:40] Speaker 00:
And why?

[01:09:41] Speaker 00:
Because under our Constitution, the ability to file lawsuits on behalf of the United States and to get injuries to the government is vested in the executive.

[01:09:50] Speaker 00:
That's the square holding of Buckley v. Vallejo, is that the problem was there that the FEC, staffed by members of the legislature, had the ability to bring enforcement actions.

[01:10:00] Speaker 00:
So it's not some sort of oddity that they need to rely on the executive branch to bring lawsuits.

[01:10:06] Speaker 00:
That is how the structure works, and the way it works is through political process, through the political tools.

[01:10:12] Speaker 00:
If they're not happy with how the executive branch is complying with its obligations and bringing suits, they have political tools, ample tools over legislation and appropriations and nominations and all the rest.

[01:10:23] Speaker 00:
Just like the executive branch, if we're not happy with the subpoenas they're issuing, we have our tools.

[01:10:28] Speaker 00:
What you don't have is federal courts stepping in the middle of that political food fight because that politicizes the judiciary.

[01:10:35] Speaker 02:
The second point and the last point I'll make is... So can I just be clear then, is your view that the opinions of the Office of Legal Counsel that recognize these remedies were not, these alternative remedies were not adequate in this context is no longer the law?

[01:10:57] Speaker 00:
I'm not quite sure what you're on or referring to, but I... Well, I mean, it takes two, you know?

[01:11:03] Speaker 02:
I mean, you can't just pass legislation on a unilateral, unicameral basis.

[01:11:08] Speaker 02:
So, the notion that the Senate, at this stage, is going to go along with some of these things, you know, I mean, it's nice to write a law review article about, but the reality of the world is we have two branches at loggerheads here, and the question

[01:11:24] Speaker 02:
really is the fundamental question.

[01:11:26] Speaker 02:
We have three branches of government.

[01:11:27] Speaker 02:
Is there no proper role for the courts?

[01:11:29] Speaker 02:
And your answer is no, not in this type of dispute.

[01:11:34] Speaker 02:
Either they have to duke it out or nothing happens.

[01:11:36] Speaker 02:
And the fact that one branch and one part of a branch is stymied in what the founding fathers thought was a critical power in terms of checking abuse of presidential power.

[01:11:53] Speaker 02:
And here the allegation is made that that is what happened.

[01:11:57] Speaker 02:
We have yet to have a trial on that.

[01:12:01] Speaker 02:
But that's so fundamental to the form of government we have.

[01:12:04] Speaker 02:
And as you know, the Justice Department has previously taken the position that the courts have no role when the president is exercising certain Article II powers.

[01:12:12] Speaker 02:
And the Supreme Court has said, no, no, there is a role.

[01:12:16] Speaker 02:
All right, it may be a limited role, but there is a role.

[01:12:18] Speaker 02:
And that's what I think we're struggling with here.

[01:12:22] Speaker 02:
Get your argument.

[01:12:25] Speaker 02:
But if we don't have a case on all fours, then you're saying constitutional avoidance.

[01:12:35] Speaker 02:
You have the message from the Supreme Court.

[01:12:37] Speaker 00:
So I'll say a couple of things in response to that, Your Honor.

[01:12:39] Speaker 00:
First is bicameralism and resentment is a feature, not a bug, of our constitutional system.

[01:12:43] Speaker 00:
I think Campbell versus Clinton recognizes that.

[01:12:46] Speaker 02:
No, no, no, no, no.

[01:12:46] Speaker 02:
I mean, you can't pass an act of Congress without two houses.

[01:12:49] Speaker 00:
That's my point.

[01:12:50] Speaker 00:
That's it?

[01:12:51] Speaker 00:
Yeah.

[01:12:52] Speaker 00:
The fact that they are political tools require effort and require accommodation within the branches and across the branches.

[01:12:58] Speaker 00:
That's the whole point of our constitution.

[01:12:59] Speaker 02:
No, no, no.

[01:13:00] Speaker 02:
But I'm getting at the point.

[01:13:01] Speaker 02:
We're at the point now where there is no such cooperation in what, you know, our constitutional system.

[01:13:08] Speaker 00:
Let me give an example this way.

[01:13:09] Speaker 02:
Was identified as a fundamental need

[01:13:13] Speaker 02:
for this government to continue to operate effectively.

[01:13:17] Speaker 00:
Just like your honor, Congress has very conveniently carved themselves out of FOIA.

[01:13:21] Speaker 00:
And there's nothing the executive branch can do about that other than put political pressure on them.

[01:13:25] Speaker 00:
We can't just pass a law that says, you know what, Congress is subject to FOIA now.

[01:13:29] Speaker 00:
That's how the political process works.

[01:13:31] Speaker 00:
The political branches use whatever tools they have.

[01:13:34] Speaker 00:
And if they don't have enough tools because they don't have enough political support in the Senate and in the public, that's how it works.

[01:13:40] Speaker 00:
And that's what Campbell versus Clinton recognized.

[01:13:41] Speaker 00:
If I could just make one last point on jurisdiction, which is my friend said that it's just if you look at 1331, it's clear that they could file a lawsuit.

[01:13:50] Speaker 00:
And so this is an implied repeal case.

[01:13:52] Speaker 00:
Well, it wasn't so clear to the DC Circuit in 1981.

[01:13:55] Speaker 00:
This is from the application case that I cited to you earlier.

[01:14:00] Speaker 00:
Prior to 1978, Congress had only two means of enforcing compliance with its subpoenas, a statutory criminal contempt mechanism and the inherent congressional contempt power.

[01:14:11] Speaker 00:
Nor was it clear to Congress when it passed 1365, this is from the Senate report, need for civil enforcement of subpoenas.

[01:14:19] Speaker 00:
Presently, Congress can seek to enforce a subpoena only by use of criminal proceedings or by the impractical procedure of conducting its own trial before the bar of the House of Representatives or the Senate.

[01:14:30] Speaker 00:
It is simply anachronistic for them to suggest that everyone always knew that 1331 was lurking in the background and they can invoke it.

[01:14:38] Speaker 00:
There's just no history or tradition of it.

[01:14:40] Speaker 00:
You can avoid the serious Article III constitutional questions by saying that at a minimum Congress has to speak, but we do think that Article III says that this is not a prophecy.

[01:14:49] Speaker 00:
Thank you, Your Honor.