[00:00:01] Speaker 00: case number 22-5290. [00:00:04] Speaker 00: Robert Schilling, House of Representatives, get out. [00:00:10] Speaker 00: Mr. Craig Nile, party at least. [00:00:16] Speaker 05: Morning, Mr. Harden. [00:00:19] Speaker 02: Good morning. [00:00:20] Speaker 02: This is my first trip to this court in my career. [00:00:24] Speaker 02: So it's a good morning for me. [00:00:28] Speaker 02: Well, thank you. [00:00:29] Speaker 02: May it please the court. [00:00:31] Speaker 02: This is a case that comes to this court on a very sparse record. [00:00:39] Speaker 02: It's a case about whether the American people under the United States Constitution and the common law right of access have the right to seek documents not just from this branch of government, it's well established that judicial records are subject to common law right of access, but also from the legislative branch. [00:01:00] Speaker 02: We would submit that in a case of this type, at the very least, we need a much more fulsome record. [00:01:08] Speaker 02: The case was dismissed. [00:01:11] Speaker 02: On speech or debate immunity, there's a very lengthy opinion from the district court on that issue of speech or debate immunity. [00:01:19] Speaker 02: And this court issued an order with the briefing schedule that said that the party should also address immunity as it applies to the committee as opposed to just members of Congress. [00:01:30] Speaker 02: And so I'm going to address the government's arguments on each of these points since they were the prevailing party below. [00:01:35] Speaker 02: And then I'll explain why Mr. Schilling believes the government is in error. [00:01:42] Speaker 02: The first, of course, is speech or debate immunity. [00:01:44] Speaker 02: That is what the district court ruled based upon. [00:01:48] Speaker 02: But I think that there is an important new case from this court. [00:01:51] Speaker 02: In fact, it's so new, it was uploaded to Lexis while I was preparing for oral argument. [00:01:56] Speaker 02: And that is NRA sealed case 80 F fourth at 355. [00:02:03] Speaker 02: It was handed down on September 13th. [00:02:05] Speaker 02: As I said, it was not uploaded until quite recently. [00:02:10] Speaker 02: In that case, [00:02:12] Speaker 02: The argument was involving access to Representative Scott Perry's cell phone records and communications. [00:02:20] Speaker 02: And in that case, Representative Perry argued that he was engaged in legislative acts and he was entitled to speech or debate immunity because he was engaged in informal fact finding relating to the 2020 election. [00:02:35] Speaker 02: He was presumably texting and calling people to ascertain facts on the ground. [00:02:42] Speaker 02: This court said in that published decision just a few months ago that investigative activity is much more narrowly defined. [00:02:53] Speaker 02: It's not informal fact-finding. [00:02:56] Speaker 02: It's not [00:02:57] Speaker 02: communications with outsiders. [00:02:59] Speaker 02: Investigative activity is things that Congress does as a whole. [00:03:04] Speaker 02: And so this court rejected Scott Perry's arguments. [00:03:08] Speaker 02: This court sent it back to the district court and said that we needed to go through Scott Perry's text messages communication by communication or line by line. [00:03:18] Speaker 02: to see what communications might be legislative acts and covered by speech or debate immunity and what communications are not. [00:03:28] Speaker 01: Just so that we're clear, is the House, is the Oversight Committee within the realm of senators and representatives under the Speech and Debate [00:03:43] Speaker 02: Our position is that it is not our position. [00:03:46] Speaker 02: First, just preserve it is that we think that the existing case law has already stretched the Constitution to its breaking point because the Constitution says senators and representatives. [00:03:56] Speaker 02: Of course, if we accept the. [00:03:59] Speaker 02: the precedent that we admit exists that has stretched the Constitution, then we go into are these staff people, staff people are entitled to immunity when they are doing things for which their employer would be entitled to immunity. [00:04:17] Speaker 02: That's the crux of the argument. [00:04:19] Speaker 02: Here, I would argue that these are not staff, and they're not doing things that are subject to the jurisdiction of their employer. [00:04:26] Speaker 02: A committee is a diffuse group of individuals, and it has, I guess, staff that serve different interests, not one sole interest. [00:04:38] Speaker 02: And I think that we're getting further and further from the constitutional text instead of closer and closer when we stretch speech or debate immunity quite that far. [00:04:49] Speaker 01: Basis of your cause of action. [00:04:52] Speaker 01: 28 USC 1361. [00:04:54] Speaker 02: I think that we've and a massage it. [00:04:58] Speaker 02: That is one basis is the short answer. [00:05:00] Speaker 02: I think that we also invoked declaratory judgment and we also believe that this is just a constitutional provision that is itself self executing. [00:05:09] Speaker 01: So declaratory judgment actions are not. [00:05:13] Speaker 01: That's not a cause of action. [00:05:14] Speaker 01: You have to have a cause of action that's valid. [00:05:17] Speaker 01: and then the Declaratory Judgment Act gives you relief under whatever that Clause of Action is, but the Declaratory Judgment Act itself doesn't establish a Clause of Act. [00:05:32] Speaker 02: And I think that the common law right of access is a cause of action that grants us relief as is evident in a series of cases, including Washington Legal Foundation versus Sentencing Commission, which legal foundation was a mandamus case. [00:05:45] Speaker 01: It was a 1361 case. [00:05:48] Speaker 01: It's not like you can just file a complaint and say common law right of access. [00:05:55] Speaker 01: And that's our cause of action. [00:05:57] Speaker 01: It has to be grounded in [00:06:00] Speaker 01: in a federal statute that creates, I mean, you can't just cite a case and say, we have, you know, the Fifth Amendment due process right or a First Amendment free speech right. [00:06:14] Speaker 01: You have to cite, you know, Section 1983 or something that is the basis of your private right of action. [00:06:25] Speaker 01: So other than 1361, is there something else? [00:06:30] Speaker 02: I think that what I get out of Washington Legal Foundation is that there is a mandamus cause of action if you're right on the merits. [00:06:38] Speaker 02: And so the mandamus factors sort of merge with the merits. [00:06:42] Speaker 02: And if there is such a thing as the common law right of access, then it is enforceable through mandamus. [00:06:50] Speaker 05: You're basically arguing that you have a federal claim and that under the Larsen Dugan exception, you can enforce the common law right of access against the house. [00:07:05] Speaker 02: Yes, Your Honor, that is. [00:07:07] Speaker 05: I mean, there is not in our circuit or from the Supreme Court. [00:07:10] Speaker 05: There is precedent that 1361, which you cite in your complaint, is actually available only to officers or agencies in the United States. [00:07:19] Speaker 05: And it's been limited to the executive branch. [00:07:21] Speaker 05: As I said, we have not so hold but held. [00:07:24] Speaker 05: But that has been the unbroken line of authority in other circuits. [00:07:29] Speaker 05: So I think you're resting. [00:07:30] Speaker 05: I take it you're resting on 1331. [00:07:34] Speaker 05: And then arguing that Larson Dugan is your route around sovereign immunity and to enforce the common law right of access. [00:07:43] Speaker 05: Is that correct? [00:07:44] Speaker 02: I think that's correct. [00:07:46] Speaker 02: Again, they've argued three things. [00:07:48] Speaker 02: They argued speech and debate immunity, sovereign immunity, and then that the common law right of access doesn't apply or in some sense. [00:07:54] Speaker 02: And so our argument on sovereign immunity is you are correct that we're arguing Larson Dugan. [00:08:00] Speaker 05: And I think you alluded to this. [00:08:03] Speaker 05: analysis then sort of merges with the merits of the common law right of access claim. [00:08:07] Speaker 05: And focusing on that, are these public records what you're seeking? [00:08:13] Speaker 02: So at a bare minimum, what I get out of NRAE sealed case that was recently handed down is that's a fact intensive inquiry, whether there's a legislative act being taken, whether it's public records, everything is fact intensive and it needs to go back for analysis of each record. [00:08:30] Speaker 02: Now, I would submit that one of the other things that's in that case, in a sealed case, is this distinction between a legislative act and an official act. [00:08:42] Speaker 02: And so there is a possibility that something can be a public record generated in your official capacity as a congressman or a member of a committee or a staff person to a committee. [00:08:53] Speaker 02: And it would not necessarily be legislative. [00:08:55] Speaker 02: Again, the proper thing to do, I think, and what this court did in that case is remand for substantive analysis. [00:09:03] Speaker 02: And I think that's really our request here. [00:09:04] Speaker 02: We're arguing all of these issues in the dark because the Congress never even answered whether these records existed. [00:09:16] Speaker 02: The pleadings are replete with [00:09:19] Speaker 02: you know, if they exist, the records are not public records. [00:09:22] Speaker 05: But why wouldn't we, as we ordinarily would do when the case is at the pleading stage, look at the characterization of the documents in your complaint and see whether that suffices to answer the question whether the requested records were created and kept for the purpose of memorializing or recording [00:09:43] Speaker 05: an official action decision statement or other matter of legal significance, and if they're not, and as I read the complaint, they aren't, then we would dismiss on that ground. [00:09:57] Speaker 02: I think you're correct that the court can look at the complaint and its allegations. [00:10:01] Speaker 02: I think that our allegations are that these are individuals communicating with a committee and district court says it's, you know, facially within the committee's jurisdiction. [00:10:14] Speaker 02: would wouldn't say that we conceded that, but that was the district court's characterization. [00:10:19] Speaker 02: And so if we have individuals corresponding with a committee and it is facially in the jurisdiction of the committee, as the district court says, it's hard for me to see how that is not a committee action or a legislative action. [00:10:35] Speaker 02: And I think that, of course, the complaint has to be construed broadly in favor of the plaintiff at this stage, too. [00:10:41] Speaker 04: How does sovereign immunity apply here? [00:10:45] Speaker 02: Essentially, if they're acting outside the scope of their authority, they are not entitled to sovereign immunity under the Larsen Dugan exception, and so we're arguing that these folks were acting outside the jurisdiction of the committee, outside the rules of Congress, and so they're not entitled to that. [00:11:02] Speaker 02: I think it merges into the merits, and that's why I think that the proper thing to do is remand [00:11:06] Speaker 05: You're not disputing that these defendants, even though they're not executive agencies or officials, they're members of the legislative branch, there's no dispute in your mind that they're presumptively entitled to sovereign immunity unless and until there's a route. [00:11:23] Speaker 02: I agree with that. [00:11:25] Speaker 02: And I think that our argument is that they have, through their actions, met the exception under Larsson Dugan. [00:11:32] Speaker 02: And I believe my time has expired, and I will reserve for a bottle. [00:11:36] Speaker 02: Thank you. [00:11:55] Speaker 05: Morning, Mr. Craig Mom. [00:11:57] Speaker 03: Good morning, Your Honor, and may it please the court. [00:11:59] Speaker 03: I think that I will just jump right into some of the discussion that was just going on. [00:12:05] Speaker 03: And I'll start with a response to an in-ray sealed case. [00:12:10] Speaker 03: So that case is very different from the case we have here. [00:12:13] Speaker 03: In Ray Seald case, of course, dealt with a personal cell phone, and there was a mix of legislative and non-legislative acts. [00:12:21] Speaker 03: And Mr. Perry made an argument there that equated official acts with legislative acts. [00:12:27] Speaker 03: Under his argument, certain communications that involved press releases and newsletters, those would have been under the definition of a legislative act. [00:12:35] Speaker 03: The court said an in race field case. [00:12:38] Speaker 03: That's not consistent with this court's precedent legislative acts are not the same as official acts here, however, we're dealing squarely with a committee investigation a committee legislative oversight investigation, and there are [00:12:54] Speaker 03: The communications being sought are those between committee members, committee staff, and third parties who, according to the complaint, performed services of the type generally performed by committee staff. [00:13:09] Speaker 03: In particular, on page five of the Joint Appendix, it says here we're talking about professional staff, third parties, though, planning investigative hearings. [00:13:18] Speaker 03: Paragraph 66 calls the third party's de facto staff. [00:13:22] Speaker 03: Paragraph 97C concedes that these materials would have been generated during the congressional oversight process. [00:13:29] Speaker 03: So we're not dealing with a mix of legislative and non-legislative acts. [00:13:32] Speaker 03: We are squarely dealing with legislative acts and those are absolutely protected by the speech or debate clause. [00:13:39] Speaker 04: You may have legislative acts protected, but what about case law directly stating that the congressional committees are entitled to the speech and debate immunity? [00:13:49] Speaker 03: Yes, Your Honor. [00:13:50] Speaker 03: I do believe that this Court and the Supreme Court, when it talks about and analyzes speech or debate, cause immunity, it treats Congress, its committees, and its members consistently, identically, and that makes sense. [00:14:04] Speaker 03: Doing so accurately reflects the way that members discharge their duties, just as members rely on staff, who the Supreme Court has said, or the members alter egos. [00:14:13] Speaker 03: and are also entitled to speech or debate clause immunity. [00:14:16] Speaker 03: They also rely on congressional committees to perform their official duties and [00:14:22] Speaker 03: Writing a rule where a plaintiff could simply plead around this absolute immunity by naming a committee or naming a chamber of Congress would really create an exception that would swallow the entire immunity. [00:14:35] Speaker 03: And that's inconsistent with what the Supreme Court and this court have said about how the clause should be interpreted, which is broadly to effectuate its purposes. [00:14:43] Speaker 04: Does sovereign immunity apply here? [00:14:44] Speaker 03: Sovereign immunity does apply, Your Honor. [00:14:47] Speaker 03: In our view, speech or debate clause immunity should be the beginning and the end of this case. [00:14:52] Speaker 03: Alternatively, all parties are entitled to sovereign immunity. [00:14:55] Speaker 03: There was some discussion earlier about Larsen Dugan. [00:14:59] Speaker 03: Larsen Dugan is triggered only if there's an allegation that the official acted beyond his or hers statutory authority. [00:15:06] Speaker 04: Well, in this particular case, it looks like the [00:15:10] Speaker 04: complaint says documents will show evidence of wrongdoing. [00:15:16] Speaker 04: And of course, they're arguing that they never got that far, you know, in terms of actually [00:15:21] Speaker 04: Receiving the documents or the documents revealing themselves. [00:15:24] Speaker 04: So we only have a will show allegation. [00:15:27] Speaker 04: Does that affect your analysis? [00:15:28] Speaker 03: Not at all. [00:15:29] Speaker 03: Even if we assume those underlying documents show unlawful behavior, that's irrelevant to the Larson Dugan analysis here. [00:15:36] Speaker 03: Here we're relying on a common law right of access. [00:15:39] Speaker 03: So the complaint alleges [00:15:40] Speaker 03: that the House unlawfully denied the common law right of access. [00:15:44] Speaker 03: The alleged violation here is a common law right of access. [00:15:48] Speaker 03: And a common law by definition cannot trigger Larson Dugan, which relies on a statutory violation or an alleged constitutional violation. [00:15:56] Speaker 03: And speaking of sovereign immunity, Washington Legal Foundation was discussed earlier in Judge [00:16:02] Speaker 03: mentioned, maybe it was Judge Wilkins, that relied on mandamus, and mandamus does not apply to Congress. [00:16:11] Speaker 03: So there's really no way to run the common law duty through any sort of statute. [00:16:15] Speaker 03: That was not, that point was not disputed in the reply brief. [00:16:19] Speaker 03: So some immunity, Your Honor, would be an alternative ground, but we really think that speech or debate clause immunity fully disposes of this case. [00:16:26] Speaker 05: We do have cases suggesting that the common law right of access [00:16:32] Speaker 05: supports a claim or circumvents sovereign immunity under Larson Duke. [00:16:38] Speaker 05: And I know your position is, reading Larson, that it only applies to a statutory or constitutional claim. [00:16:46] Speaker 05: But we have circuit precedents to the contrary, don't we? [00:16:49] Speaker 03: Well, I believe that's only Washington Legal Foundation, Your Honor, and that was a mandamus action. [00:16:52] Speaker 03: And here, mandamus is unavailable because mandamus does not apply to Congress. [00:16:58] Speaker 05: Why? [00:16:59] Speaker 05: I mean, there's jurisdiction under 1331 [00:17:02] Speaker 05: here, or assume there is jurisdiction for injunctive relief under 1331. [00:17:06] Speaker 05: Is your response the same? [00:17:08] Speaker 05: I'm not sure I'm getting your connection between. [00:17:11] Speaker 03: As we read Washington Legal Foundation, it stands for the proposition that a plaintiff may bring a mandamus action [00:17:18] Speaker 03: to compel a government official to perform a duty and that relied, that duty flowed through a statute in that case that was the mandamus statute. [00:17:28] Speaker 03: And so that's how you get through Larson Dugan. [00:17:31] Speaker 03: One way to get to Larson Dugan is through an alleged statutory violation. [00:17:35] Speaker 03: But here we don't have that because the mandamus statute does not apply to the House. [00:17:40] Speaker 03: And as I mentioned earlier, any alleged violation of these other statutes are irrelevant because the relief here is based on an alleged common law violation. [00:17:50] Speaker 03: But again, the court wouldn't need to go there if it agrees with us on speech or debate clause immunity, which again is an absolute immunity. [00:17:57] Speaker 03: And just to go briefly back to NRA sealed case, that's another fundamental difference between that case and this case. [00:18:05] Speaker 03: That was dealing with an evidentiary immunity. [00:18:07] Speaker 03: Here, we're dealing with an absolute immunity from suit. [00:18:11] Speaker 03: And one of the purposes of that absolute immunity is to prevent the House from being subjected to the burdens of defending. [00:18:17] Speaker 05: Why is this not more on the evidentiary side? [00:18:22] Speaker 05: Because the cause of action is not predicated on [00:18:26] Speaker 05: legislative conduct. [00:18:27] Speaker 05: It's not that the liability is predicated on legislative conduct. [00:18:34] Speaker 05: It's that the denial of records is the wrong. [00:18:40] Speaker 05: So it's predicated on the common law right of access. [00:18:43] Speaker 03: Right. [00:18:43] Speaker 03: But we're still in absolute immunity land, Your Honor, because they've sued the House. [00:18:49] Speaker 03: They've sued a committee. [00:18:50] Speaker 03: They've sued a member. [00:18:51] Speaker 03: They've sued House employees. [00:18:52] Speaker 03: And they're trying to hold these folks in. [00:18:54] Speaker 03: to defend themselves in litigation. [00:18:56] Speaker 03: And that's a core purpose of the speech or debate, cause immunity, which is not only meant to protect the House from the outcome of litigation. [00:19:04] Speaker 05: Can you speak to whether the documents are public records? [00:19:09] Speaker 03: Yes, Your Honor. [00:19:10] Speaker 03: I think that Your Honor put her finger on it earlier. [00:19:14] Speaker 03: We're looking at whether the complaint plausibly alleges that these materials would be public records. [00:19:19] Speaker 03: And the complaint, I think, makes quite clear that we're dealing with preliminary materials, communications between committee staff, committee members, and third parties as they are executing an investigation. [00:19:33] Speaker 03: And there's no allegation that these would [00:19:36] Speaker 03: created or kept for the purpose of memorializing an official action or an official decision. [00:19:43] Speaker 03: We're dealing with preliminary materials that at best would have been relied on by a decision maker to then make an official decision. [00:19:50] Speaker 01: Can you speak to the argument that there is jurisdiction under 1331 because there's a federal question somewhere, either the common law right of access or a federal statute? [00:20:10] Speaker 01: Because my understanding is that you still have to have some sort of a kind of basis for the [00:20:20] Speaker 01: right to bring the action. [00:20:23] Speaker 01: And that 1331 doesn't do that. [00:20:25] Speaker 01: You can't just cite a federal statute in section 1331 and have a claim. [00:20:32] Speaker 03: That's consistent with my understanding, Your Honor. [00:20:34] Speaker 03: We haven't made an argument based on sort of a lack of cause of action here. [00:20:39] Speaker 03: As we read the complaint, one of the bases for a cause of action was the mandamus statute. [00:20:44] Speaker 01: That means what I'm trying to get at is the mandamus statute has very specific [00:20:51] Speaker 01: You know, you have to show a clear and indisputable right to relief and clear duty to act and all of that. [00:20:58] Speaker 01: And so I'm trying to figure out, does this case have to be decided within that framework or is there some other framework available to the plaintiff where they don't have to meet that high burden, that high standard? [00:21:18] Speaker 03: Well, I think if they did ever get to the merits, your honor, and we're truly relying on a mandamus action on the merits, they would need to make that showing in order to be entitled to mandamus relief. [00:21:28] Speaker 03: I don't think that's the framework the court needs to use. [00:21:31] Speaker 01: I understand you think we can just decide this on speech or debate clause, but let's assume we disagree with that. [00:21:38] Speaker 01: What I'm trying to figure out then is the only way to, if we get to the merits at all, is the only way to get that through the mandamus framework or is the appellant correct that there's a different framework that's not astringent that would apply to this claim? [00:22:01] Speaker 03: I'm sorry, a different framework. [00:22:02] Speaker 03: That's what you're on. [00:22:03] Speaker 01: That would apply to this claim other than the mandamus framework if we got to anything touching. [00:22:11] Speaker 03: I'd maybe want to think a bit more about that, Your Honor. [00:22:14] Speaker 03: We didn't get into that in the briefing. [00:22:15] Speaker 03: As I read the complaint, it is arguing, or it is relying on the mandamus statute. [00:22:21] Speaker 03: And so it seemed my first reaction is that all roads would lead back to the mandamus standard. [00:22:27] Speaker 03: But I'd maybe want to think a bit more about that. [00:22:29] Speaker 05: And wouldn't it be the case that even if jurisdiction were premised on 1331, this would be in the nature of a kind of a mandamus action? [00:22:38] Speaker 05: I think is it? [00:22:39] Speaker 05: decision feels. [00:22:41] Speaker 05: We've talked about the relationship between a 1331-based claim for an affirmative injunction against the government, and I believe it does somewhat assimilate the mandamus elements, the high standard. [00:22:57] Speaker 03: Yeah, that sounds right to me, Your Honor. [00:22:59] Speaker 05: So putting aside, again, sovereign immunity, I mean, speech or debate for a moment, if we were inclined to affirm on the ground of sovereign immunity, this is just hypothetical. [00:23:11] Speaker 05: We've not spoken. [00:23:13] Speaker 05: We've not offered. [00:23:16] Speaker 05: But in your position that [00:23:20] Speaker 05: couldn't bring a Larson Dugan action to enforce a common law right of action. [00:23:25] Speaker 05: I'm not sure theoretically that I really follow why that would be so. [00:23:29] Speaker 05: And I know the language you're relying on in Larson. [00:23:33] Speaker 05: But for example, under ex parte young, which is analog pursuing for injunctive relief against state officers, there's no such restriction. [00:23:46] Speaker 05: And I'm just wondering why there would be. [00:23:49] Speaker 05: in the federal context. [00:23:51] Speaker 05: And if there is, then is there no claim at all for this kind of thing? [00:23:59] Speaker 03: I think the restrictions generally come from Larson and Dugan themselves, which say that there's an exception to sovereign immunity only when we're dealing with an allegation that a government official has done something beyond his or her statutory authority or acted in a way that's unconstitutionally. [00:24:15] Speaker 03: And Larson itself said, you know, even if there's an allegation that there's some unlawful behavior under sort of general tort law, that's not enough. [00:24:23] Speaker 03: It's got to be beyond statutory duty and it has to be or it has to be unconstitutionally. [00:24:28] Speaker 03: And so I think that's where the restriction comes from. [00:24:31] Speaker 03: But here, we're just dealing with an alleged common law violation. [00:24:35] Speaker 05: But it's a particular kind of common law. [00:24:37] Speaker 05: It's not tort law. [00:24:38] Speaker 05: It's not state law. [00:24:39] Speaker 05: It's a federal common law right of action. [00:24:42] Speaker 05: And one wonders how it would be enforceable if not under Larsson Dugan. [00:24:49] Speaker 03: Well, I think that's our fundamental position is that it's not enforceable against the House, Your Honor, for several reasons. [00:24:55] Speaker 03: There is no waiver of sovereign immunity. [00:24:56] Speaker 03: And then if we actually get to the merits, the common law right of access doesn't apply at all to Congress. [00:25:01] Speaker 05: And pre FOIA, pre APA, there would be no common law right of access claim against the executive branch either or against the courts under your theory. [00:25:10] Speaker 03: No, I think that our argument applies solely to Congress. [00:25:13] Speaker 03: And that's because Congress has exclusive authority under the Constitution, the rule making and journal clauses to control access to its materials. [00:25:21] Speaker 03: This court's recognized that authority in its goal and decision. [00:25:25] Speaker 05: Isn't that a different argument? [00:25:27] Speaker 05: That's an argument that there might be something displacing [00:25:32] Speaker 05: the common law right of access that would be a rule under the rule making clause, but not that the common law right of access just wouldn't apply. [00:25:43] Speaker 03: I think it's the same argument, Your Honor. [00:25:45] Speaker 03: The argument is that if the common law would have applied to Congress, it no longer does after the Constitution gave both chambers exclusive authority to control its own materials. [00:25:56] Speaker 03: And again, I'll just read briefly from the Golan decision, which said that Congress has undoubted authority to keep its record secret, authority rooted in the Constitution, longstanding practice, and current congressional rules. [00:26:07] Speaker 03: It's hard for me to square that. [00:26:09] Speaker 03: And I think it's relevant that Mr. Schilling hasn't pointed to any [00:26:12] Speaker 03: judicial decision that's applied the common law right of access to Congress, nor is there any decision applying the mandamus statute to Congress. [00:26:19] Speaker 04: But are we ready to kind of do that line drawing here to actually say there would never be jurisdiction under common law right of access? [00:26:28] Speaker 03: Well, if you're with us on speech or debate, cause immunity, you wouldn't have to, Your Honor. [00:26:31] Speaker 03: The holding would just be we're dealing with legislative acts. [00:26:34] Speaker 03: There's an absolute immunity. [00:26:35] Speaker 03: There's no balancing that's inconsistent with the fundamental nature of an absolute immunity. [00:26:39] Speaker 03: It's inconsistent with this court's precedent that says speech or debate, cause immunity is jurisdictional. [00:26:45] Speaker 03: There would be no line drawing issues there. [00:26:47] Speaker 03: There also wouldn't necessarily need to be line drawing issues if you ruled alternatively on sovereign immunity. [00:26:52] Speaker 03: You could just say that Washington Legal Foundation is distinguishable because the mandamus statute doesn't apply to Congress. [00:26:58] Speaker 03: There's no waiver. [00:26:59] Speaker 05: Or say these aren't public records. [00:27:01] Speaker 05: That the merits of the common law right of access fold into the threshold sovereign immunity analysis. [00:27:10] Speaker 05: And if one were to hold that there is no clear right, then done. [00:27:16] Speaker 05: We disagree that they would fold into each other, Your Honor, but to the extent that that's because you disagree that the common law right of access is even enforceable. [00:27:25] Speaker 03: For a couple of reasons, I guess the fundamental reason is because we disagree that there's a way to get to Larson Dugan under this course precedent under the Supreme Court's decision and Larson Dugan. [00:27:34] Speaker 03: Larson and Dugan. [00:27:36] Speaker 03: And if you can't get into an exception, then sovereign immunity applies. [00:27:39] Speaker 03: And you don't have to reach the question of whether the common law right of access does apply to Congress. [00:27:43] Speaker 03: But to the extent that the court does fold in the merits into the sovereign immunity analysis, then the question would, I think the first question would be whether the common law right applies to Congress. [00:27:53] Speaker 03: It does not. [00:27:54] Speaker 03: We're unaware of any example, any court decision anywhere that's ever applied the common law right. [00:27:59] Speaker 05: um or rather any decision from this court or the supreme court applied for national securities so so treat the common law right of access [00:28:08] Speaker 03: Center for National Security, as I remember, Your Honor, said that this court has held that the common law right applies to all three branches. [00:28:16] Speaker 03: It cited Washington Legal Foundation for that proposition. [00:28:19] Speaker 03: Washington Legal Foundation did not involve the legislative branch that involved an entity within the judicial branch, so that was DICTA. [00:28:30] Speaker 03: Although Center for National Security study said that respectfully, it was DICTA in Washington Legal Foundation and it was DICTA in [00:28:38] Speaker 03: Center for National Security Studies. [00:28:40] Speaker 03: But even if the court concluded that it was bound by that statement, and even if by getting to the merits, it felt that it needed to square that, the way to do that would be to apply the common law right to other entities within the legislative branch, not Congress itself. [00:28:56] Speaker 03: Because those entities do not have this exclusive authority that this court recognized in Golan to control access to its materials. [00:29:05] Speaker 03: I see that I'm well over my time, but I'm happy to answer other questions. [00:29:10] Speaker 05: Thank you. [00:29:11] Speaker 03: Great. [00:29:18] Speaker 05: Did Mr. Harden have time? [00:29:20] Speaker 05: We managed to ask you enough questions to use up your time, but we'll give you the rebuttal that you saw. [00:29:28] Speaker 02: Thank you, your honor. [00:29:29] Speaker 02: I want to go back to in Ray sealed case on speech or debate immunity because that's what the basis of the district court's opinion was and the chief argument on appeal. [00:29:42] Speaker 02: At the very end of that case, in the holding, they talked about documents that were not covered by speech or debate immunity. [00:29:49] Speaker 02: And examples of that were communications with private individuals, quote, about upcoming events, political talking points, articles of interest, et cetera. [00:29:58] Speaker 02: These were, quote, political matters not covered by the privilege. [00:30:02] Speaker 02: And so when they say these are documents with private individuals planning for committee hearings, [00:30:07] Speaker 02: That sounds like exactly what the squirt held in Ray sealed case and in race held case was not covered by the privilege. [00:30:15] Speaker 02: And so I don't think that there's any way to square this argument that they're making on speech or on speech or debate immunity with that case. [00:30:22] Speaker 01: But you you can see legislating with regarding climate change is like within this committee's jurisdiction, right? [00:30:33] Speaker 02: I think that's indisputable that legislating on climate change is within their jurisdiction. [00:30:38] Speaker 01: And you plead that the communications that you see are communications addressing that topic, right? [00:30:50] Speaker 02: I don't think we plead that their communications addressing legislating on climate change, Your Honor. [00:30:54] Speaker 02: I think we plead that they are communications by people seeking an outcome. [00:30:58] Speaker 02: I think that outcome includes things like referrals to DOJ and our complaint. [00:31:03] Speaker 02: And so it's individual seeking things out of the committee, but I definitely don't think that we're saying that these individuals are seeking legislation out of the committee. [00:31:11] Speaker 02: And so, again, I think this court has been clear that the common law right of exit. [00:31:18] Speaker 01: But even if it was relating to a referral, isn't it within the committee's jurisdiction to refer someone or something or some issue or investigation or consideration by the DOJ? [00:31:36] Speaker 02: I believe it's a little deeper than that in the complaint. [00:31:39] Speaker 02: We call it quote engineering a referral and I think that the the allegation is that this is misuse of the committee and misuse of the referral process since that gets back, I guess, to to Larson Dugan immunity. [00:31:52] Speaker 02: My time is very close to expiring. [00:31:54] Speaker 02: If not expired, I will conclude by saying that the district court held in the Schwartz case in 1977 that the common law right of access applies to Congress. [00:32:03] Speaker 02: This court held in national security studies that it applies to Congress. [00:32:06] Speaker 02: there is no right without a remedy. [00:32:09] Speaker 02: And it would be an extremely anomalous result defined in this case that there is a common law right of access, but that it is unenforceable against one branch of government. [00:32:18] Speaker 02: Thank you. [00:32:21] Speaker 05: Thank you. [00:32:21] Speaker 05: The case is submitted.