[00:00:00] Speaker 00:
Case number 23-30-01, King Ray Stilkes.

[00:00:04] Speaker 00:
Mr. Rowley for the appellate area for the appellate area.

[00:00:12] Speaker 02:
Mr. Rowley, good morning.

[00:00:17] Speaker 02:
Before you give it, and I apologize for breaking the flow of it, but we have your brief and the brief of your opponent on jurisdiction.

[00:00:30] Speaker 02:
And unless there are questions from my colleagues, we would like you to go immediately to questions two and three.

[00:00:37] Speaker 02:
Judge Kansas, do you have any question about jurisdiction?

[00:00:40] Speaker 05:
I do not.

[00:00:42] Speaker 02:
Judge Raul?

[00:00:44] Speaker 00:
I do not.

[00:00:45] Speaker 02:
Thank you.

[00:00:46] Speaker 02:
All right.

[00:00:46] Speaker 02:
Then if you would proceed to questions two and three.

[00:00:49] Speaker 04:
Thank you, Your Honor.

[00:00:50] Speaker 04:
May it please the court, counsel?

[00:00:53] Speaker 04:
Your Honor, my name is John Rowley along with co-counsel John Irving and Stan Brand.

[00:00:57] Speaker 04:
We have the privilege to represent the appellant in this case.

[00:01:01] Speaker 04:
This case involved questions regarding the application of the Speech or Debate Clause Article 1, Section 6, Clause 1 of the U.S.

[00:01:09] Speaker 04:
Constitution, which, as the Court knows, provides that for any speech or debate in either House, members of Congress shall not be questioned in any other place.

[00:01:21] Speaker 04:
As the court is aware, this case implicates important separation of powers issues, including whether a member of Congress's informal legislative fact-finding is protected from executive branch intrusion, regardless whether it is directly tethered to formal authorization from a committee or the House or other arm of Congress.

[00:01:44] Speaker 04:
Now, the district court in this case held that fact-finding efforts do not occur within

[00:01:48] Speaker 04:
a legitimate legislative sphere if they are not specifically authorized by the House.

[00:01:58] Speaker 04:
It concluded therefore that unless formally authorized, a member's fact-finding does not qualify for speech or debate protection.

[00:02:07] Speaker 04:
Appellant respectfully disagrees with that conclusion and asks this court to reverse the district court's order or alternatively to remand this case to the lower court to reconsider its review of the records at issue in accordance with this court's instructions.

[00:02:25] Speaker 05:
We have a lot of cases

[00:02:28] Speaker 05:
supporting a broad construction of the speech or debate clause, but we are construing a constitutional text.

[00:02:38] Speaker 05:
And shouldn't we put some weight on the fact that what we're talking about here seems a bit far afield from speech or debate?

[00:02:54] Speaker 04:
Well, Your Honor, the Constitution does protect speech or debate, and the case law, both the Supreme Court and by this Court, has made it clear that speech within the legitimate legislative sphere is protected.

[00:03:11] Speaker 04:
There's no reason, Your Honor, that speech, that the privilege applies to a congressman's office, but not to his cell phone, given the fact that in the 21st century, congresspeople, as authorized by House regulations, routinely use their cell phones to communicate on legislative matters.

[00:03:31] Speaker 04:
As a matter of fact, during the period of time at issue here, the House specifically

[00:03:37] Speaker 04:
encouraged members to use their cell phones to vote by proxy and to communicate with staff and other members regarding legislative matters.

[00:03:46] Speaker 04:
And so for that reason, Your Honor, perhaps some time ago it made sense to limit the protections of the privilege to a congressman's workspace in his congressional office.

[00:03:59] Speaker 04:
I would submit to the court that that is no longer the case, given the modern realities of technology.

[00:04:05] Speaker 00:
Mr. Rowley, I think it's important here that the aspect of the speech and debate clause privilege that is at issue is the Rayburn non-disclosure privilege.

[00:04:17] Speaker 00:
We're not talking about testimonial privilege or any other immunity that follows from the clause.

[00:04:22] Speaker 00:
We're only talking about non-disclosure immunity under the clause that was recognized in Rayburn.

[00:04:28] Speaker 00:
So I'm wondering what you think might be the limits of such a non-disclosure privilege specifically.

[00:04:36] Speaker 00:
So in other contexts where there is a non-disclosure privilege, say in the context of executive privilege, that privilege can be waived if material is shared with third parties.

[00:04:48] Speaker 00:
So what about for members of Congress?

[00:04:52] Speaker 00:
If a communication is made with somebody outside of Congress,

[00:04:57] Speaker 00:
Why should that be covered by the nondisclosure privilege?

[00:05:00] Speaker 04:
And Your Honor, thank you for that question.

[00:05:02] Speaker 04:
I believe the principles are similar, are identical, regardless of who the member happens to be communicating with, provided that the communication is conducted within the sphere of legitimate legislative activity.

[00:05:19] Speaker 04:
Members all the time conduct fact-finding, whether it be informal fact-finding or fact-finding pursuant to a committee resolution.

[00:05:26] Speaker 04:
As an example, Your Honor, the unfortunate tragedy in Palestine, Ohio right now, the train derailment and the ecological disaster.

[00:05:37] Speaker 00:
But the thing is, even if we assume that some type of fact-finding, individual fact-finding is covered, for the non-disclosure part of the privilege, why can't that be waived?

[00:05:50] Speaker 00:
if the fact-finding involves a party outside of Congress?

[00:05:54] Speaker 04:
Well, Your Honor, the simple answer to that, I believe, is because this is a constitutional protection, Article 1 of the Constitution, Section 6, Clause 1.

[00:06:09] Speaker 04:
And it's a dramatically different kind of constitutional right.

[00:06:15] Speaker 04:
than some of the others.

[00:06:16] Speaker 00:
So the non-disclosure privilege for members of Congress would be broader than that same non-disclosure privilege for the president or members of the executive branch?

[00:06:26] Speaker 00:
Because executive privilege is waived when it's shared outside of the executive branch.

[00:06:32] Speaker 04:
Well, Your Honor, I don't think it can be waived, but I also believe, Your Honor, that

[00:06:40] Speaker 04:
The non-disclosure privilege applies to communications that are outgoing and ingoing by a congressman.

[00:06:48] Speaker 04:
The lynchpin, of course, is whether or not

[00:06:52] Speaker 04:
that discussion, that communication is being undertaken for legislative purposes.

[00:06:59] Speaker 00:
It might be that that discussion is entitled to other types of speech and debate immunity, immunity from criminal prosecution or testimony, but it may not be subject to a non-disclosure immunity.

[00:07:16] Speaker 04:
Well, Your Honor, I think the case law in this circuit has made it quite clear that the non-disclosure privilege does apply to circumstances that are quite familiar, quite similar to the ones in this case.

[00:07:31] Speaker 04:
And other circuits have agreed.

[00:07:36] Speaker 04:
And understanding that law enforcement has a legitimate interest to investigate potential criminality,

[00:07:45] Speaker 04:
Nevertheless, notwithstanding that, the nondisclosure privilege here, as I say, has been recognized by this court for some 16 years without variation.

[00:07:58] Speaker 04:
This is the first time, to my knowledge, that a cell phone has been involved where the government has attempted to seize communications on a cell phone.

[00:08:10] Speaker 04:
But by analogy to a congressman's office,

[00:08:14] Speaker 04:
I just think the matters are nearly identical.

[00:08:20] Speaker 05:
It's not the cell phone that makes this odd.

[00:08:22] Speaker 05:
It's that the communication can be to anyone in the universe.

[00:08:29] Speaker 05:
Usually you think of a privilege holder as having an entitlement that runs to communications with a defined

[00:08:40] Speaker 05:
category of person.

[00:08:41] Speaker 05:
You have an attorney-client privilege, that's for communications with your lawyer and only with your lawyer.

[00:08:49] Speaker 05:
This seems a little different, maybe odd, in that the privilege holder on your theory has a privilege that extends to communications with anyone in the world.

[00:09:05] Speaker 04:
Unlike other types of privilege that are communications based, like the attorney-client privilege, for example, this constitutional privilege is activities based.

[00:09:17] Speaker 04:
And so once the activity is legislative, I would submit to the court that the cases hold

[00:09:26] Speaker 04:
that that activity is protected.

[00:09:29] Speaker 04:
It's an absolute privilege.

[00:09:32] Speaker 04:
It may be inconvenient at times to law enforcement, but it's an absolute privilege and the analysis stops right there once the court is to determine that the communication occurs within the legislative sphere.

[00:09:49] Speaker 04:
And, Your Honor, if I could just simply, I want to make sure that I address any questions the court has, but if I can go back to my analogy about Ohio for just one second, if the member in that district conducted informal fact-finding, investigative fact-finding to determine the cause of the train derailment and the ecological disaster that has occurred in Ohio,

[00:10:10] Speaker 04:
As long as that is done within the legislative sphere, it's an issue upon which legislation could be had.

[00:10:20] Speaker 04:
Speech and debate applies.

[00:10:23] Speaker 04:
If that member, for whatever reason, would have received a subpoena or a search warrant from the government, that privilege would be absolute and would, under the Rayburn analysis, provide with a nondisclosure privilege.

[00:10:39] Speaker 04:
So the congressman would have an opportunity to review any communications on that phone for privilege before the government would obtain access to those documents I'm interested in this

[00:10:54] Speaker 00:
So a number of cases from the Supreme Court and our court have held that if a committee or subcommittee or some component of Congress is investigating, those investigations are covered by speech and debate clause immunity.

[00:11:07] Speaker 00:
There are no cases specifically about individual member fact-finding.

[00:11:13] Speaker 00:
And it seems to me that if individual member, so actions that come from a committee or a subcommittee are really by definition legislative acts.

[00:11:23] Speaker 00:
They're in fact acts of Congress or a subcomponent of Congress.

[00:11:28] Speaker 00:
And so how do we think about individual member fact finding?

[00:11:36] Speaker 00:
How is it similar to things like speaking on the floor, casting a vote,

[00:11:42] Speaker 00:
deliberating and debating about legislation.

[00:11:45] Speaker 04:
Well, getting you on to the focus, the judicial focus to determine whether or not the privilege exists and therefore is absolute is on whether or not the communication occurs in an area where legislation could be had.

[00:12:00] Speaker 00:
Well, the standard for whether legislation could be had is about whether something is within the investigative power of Congress.

[00:12:07] Speaker 00:
It's not the standard for speech and debate clause immunity.

[00:12:11] Speaker 04:
We are admittedly the case law pertaining to individual fact-finding by members of Congress is somewhat sparse, but it is not non-existent.

[00:12:21] Speaker 04:
For example, in a recent case considered by the U.S.

[00:12:24] Speaker 04:
District Court in Georgia regarding Senate background,

[00:12:26] Speaker 04:
The district judge there determined that under certain circumstances, citing the Third Circuit's decision in Gov.

[00:12:36] Speaker 04:
Virgin Islands v. Lee, that immunity can exist provided that the communications are legislative in nature.

[00:12:44] Speaker 04:
And the court in that case, as I'm sure Your Honor knows, parsed the communications.

[00:12:49] Speaker 04:
It's a difficult process, but nevertheless a necessary process required by the Constitution.

[00:12:54] Speaker 04:
to parse the communications that were legislative in nature or purely political in nature.

[00:13:01] Speaker 04:
And I think that the same would hold here in this case, Your Honor.

[00:13:08] Speaker 04:
Your Honor, I see that I've gone into my rebuttal time.

[00:13:14] Speaker 00:
All right, if there are no more questions, then we'll hear from Mr. I do have one more question, actually.

[00:13:20] Speaker 00:
I'm also interested, so the Supreme Court has said that in determining whether something is entitled, you know, some type of legislative action is covered by the immunity, we take a categorical approach, right?

[00:13:33] Speaker 00:
Things go by whole categories.

[00:13:35] Speaker 00:
We don't kind of parse things individually to determine whether they are legislative.

[00:13:40] Speaker 00:
And in a number of cases, like in the Brewster case, the court has effectively said that private conversations

[00:13:48] Speaker 00:
you know, in that context involving bribery, were not covered by the privilege.

[00:13:54] Speaker 00:
And if they were covered by the privilege, of course, it wouldn't matter that there was bribery involved there.

[00:14:00] Speaker 00:
It would be absolutely, you know, the member would have been absolutely immune for those acts.

[00:14:05] Speaker 00:
So, I mean, doesn't Brewster suggest that those kinds of private conversations that a member may have with a constituent or a company

[00:14:13] Speaker 00:
within their jurisdiction, you know, they might be appropriate.

[00:14:16] Speaker 00:
They may even be important to doing their job, but they are not covered by this privilege.

[00:14:22] Speaker 04:
Again, I hate to keep coming back to

[00:14:24] Speaker 04:
legislative purpose, but I think that that's what this case respectfully is all about.

[00:14:29] Speaker 04:
If those conversations in the example that you provided were not legislative in nature, then the speech or debate clause simply does not apply.

[00:14:38] Speaker 05:
If on the other hand... Presumably the bribe is going to be on a subject on which legislation could be had.

[00:14:44] Speaker 05:
It wouldn't be a very effective bribe otherwise.

[00:14:51] Speaker 04:
Well, Your Honor, I think under those circumstances, it would be hard for me to imagine how a recipient, a congressional recipient of a bribe could plausibly say that he accepted the bribe and that that is protected because he could potentially propose it.

[00:15:09] Speaker 00:
Well, that's the whole purpose of the clause, isn't it?

[00:15:12] Speaker 00:
Is that a member can on the floor say something that may be subject

[00:15:17] Speaker 00:
to some type of criminal act, and then they are immune for that speech or debate.

[00:15:21] Speaker 00:
So if they are not immune from talking to someone back home about a potential bribe, then that whole category of conversations is not covered by the immunity, which means it's not a legislative act.

[00:15:35] Speaker 04:
I would submit to the court that even if a congressman was in his office on Capitol Hill discussing with a constituent the possibility of accepting a bribe, that would not be within a legitimate legislative sphere and therefore not protected.

[00:15:50] Speaker 00:
Because it's criminal activity?

[00:15:53] Speaker 04:
Because it does not involve legislation or legislation that might be had.

[00:15:59] Speaker 00:
Well, that would then require the court to look behind what the member has been doing to what their motives were.

[00:16:07] Speaker 00:
And the cases are very clear that judges are not permitted to look at the motives behind any particular action.

[00:16:13] Speaker 00:
We take a categorical approach.

[00:16:15] Speaker 00:
Either this type of conversation is covered by the privilege or it is not covered.

[00:16:20] Speaker 00:
It doesn't matter what the member's motive was.

[00:16:22] Speaker 00:
So if a conversation about a bribe is not covered, why would other private conversations be considered legislative acts?

[00:16:33] Speaker 04:
Well, I think this court found in the Rayburn case that Congressman Jefferson

[00:16:39] Speaker 04:
was not entitled to the privilege for matters that amounted to criminality and were outside the legislative sphere.

[00:16:49] Speaker 04:
The court certainly has the right, has an obligation to determine whether or not under a certain factual scenario it's plausible that legislation could be had and that the reason for the communication was within the legislative sphere.

[00:17:06] Speaker 04:
In your honor's example, respectfully, I just don't think that that would be plausible and I think a court would smoke that out right away.

[00:17:16] Speaker 04:
Thank you, Your Honor.

[00:17:16] Speaker 04:
Thank you.

[00:17:19] Speaker 02:
All right, thank you, Mr. Raleigh.

[00:17:20] Speaker 02:
We'll give you a couple minutes in reply.

[00:17:22] Speaker 02:
Mr. Pelletier.

[00:17:31] Speaker 01:
Thank you, Your Honors, and may it please the Court, John Pelotary on behalf of the United States.

[00:17:37] Speaker 01:
There are several grounds for either dismissal of the appeal here or affirming the district court's order.

[00:17:42] Speaker 01:
I'd like to just give, start with a brief overview of what we think the logical progression of the issues are here.

[00:17:49] Speaker 01:
First is jurisdiction.

[00:17:50] Speaker 01:
I know your honors have not asked for an argument on that, but we believe the case should be dismissed for lack of appellate jurisdiction.

[00:17:57] Speaker 01:
Second, if the court determines that it possesses appellate jurisdiction, the next question is, does Rayburn and the nondisclosure privilege that the court recognized in Rayburn apply to a personal cell phone?

[00:18:12] Speaker 01:
If the court determines that it has jurisdiction and that Rayburn applies to a personal cell phone, the next question is, well, does this court independently need to conduct the Rayburn privilege review independently from the review by the district court?

[00:18:29] Speaker 01:
If the court determines that it has an appellate jurisdiction, if it applies to the personal cell phone, this court has to do a review.

[00:18:39] Speaker 01:
The next question is, well, what is the scope of that review?

[00:18:43] Speaker 01:
Does it only apply to materials that are kept in confidence, which would be a much smaller portion of the materials at issue here.

[00:18:52] Speaker 01:
Only if the court concludes that it has appellate jurisdiction, that Raven applies to a personal cell phone, that this court has to conduct its own review, and that we think if it gets there, it should only apply to materials that are not kept in confidence, then the court gets to, well, what is the scope of the category of legislative acts that are protected by the speech or debate clause?

[00:19:14] Speaker 01:
And part of that issue is the issue of

[00:19:19] Speaker 01:
what people have called informal fact-finding.

[00:19:22] Speaker 00:
Can we talk about the extent to which these materials have to be maintained confidentially?

[00:19:28] Speaker 00:
So we can just go through some hypotheticals.

[00:19:31] Speaker 00:
So if a member has a communication with somebody outside of Congress, I take it the government's position is that's when the confidentiality has been breached.

[00:19:43] Speaker 01:
Yes, so the particular nondisclosure privilege that this court recognized in Rayburn and it derived it from the civil context in Brown versus Williamson is grounded in the idea that members of Congress needs a certain amount of confidentiality and privacy for their deliberation, for their internal communications and conversations and that requires a nondisclosure privilege

[00:20:10] Speaker 01:
so that their communications are not chilled.

[00:20:14] Speaker 01:
I think in Brown versus Williamson, the court said that it was prepared to respect the confidentiality of congressional files.

[00:20:22] Speaker 01:
And it specifically distinguished a Third Circuit case because in that case, the materials had gone to third parties.

[00:20:32] Speaker 05:
Congressional files recording communications that took place wholly outside the Congress.

[00:20:41] Speaker 05:
It's Brown and Williamson and Minpico before it.

[00:20:46] Speaker 01:
Well, I think what Brown and Williamson meant is not that the emails themselves, or excuse me, the materials themselves, could not be in any way disclosed.

[00:20:54] Speaker 01:
It was Congress's specific working files and that reflected its deliberations.

[00:20:59] Speaker 01:
So it wasn't necessarily on par with, say, a communication.

[00:21:02] Speaker 05:
It didn't reflect deliberations.

[00:21:04] Speaker 05:
They were trying to get the Brown and Williamson documents that were stolen by the

[00:21:09] Speaker 05:
paralegal from the outside firm.

[00:21:11] Speaker 01:
I think the discussion in Brown and Williamson said that it reflects the internal functioning of Congress the way a, for example, in gravel preparation for a committee hearing.

[00:21:21] Speaker 01:
Because it was an investigatory file.

[00:21:24] Speaker 01:
It was a part of the investigatory file that reflected kind of like I would think of a work product, you know, the way an attorney work product filed.

[00:21:33] Speaker 05:
So suppose a member is deliberating on how to vote.

[00:21:39] Speaker 05:
And as part of the internal, not chambers, office process, they do a series of calls to key stakeholders and constituents and supporters outside the government.

[00:21:54] Speaker 05:
And they record the communications.

[00:21:56] Speaker 05:
John Smith says vote yes because of some reason.

[00:22:00] Speaker 05:
And Jane Doe says vote no because of some reason.

[00:22:04] Speaker 05:
And that information is in a file.

[00:22:07] Speaker 05:
You think you can get that?

[00:22:09] Speaker 01:
If it, I would assume that the recording itself, I don't think we, I think we could get that.

[00:22:15] Speaker 01:
Yes, I think there's no, let me be clear here.

[00:22:18] Speaker 01:
I think the non-disclosure privilege does not exist.

[00:22:21] Speaker 01:
Right, no, just non-disclosure.

[00:22:22] Speaker 01:
And I just want to be clear, that doesn't mean we could use it as evidence in a criminal proceeding or civil proceeding.

[00:22:29] Speaker 01:
It doesn't mean that the member can't claim testimony privilege about it.

[00:22:34] Speaker 01:
It doesn't mean that a member can claim immunity about it.

[00:22:37] Speaker 01:
It's just simply the non-disclosure privilege, that narrow privilege that the court has recognized in Brown versus Williamson and in Rayburn.

[00:22:47] Speaker 01:
And I would point, for example, to the Helstowski decision in the Supreme Court.

[00:22:51] Speaker 01:
In that case, the member appeared I think 10 times before a grand jury and talked about all sorts of legislative acts.

[00:22:58] Speaker 01:
Talked about introducing bills and things of that sort, all legislative acts.

[00:23:04] Speaker 01:
And so he clearly did not stand on his right, testimonial privilege right.

[00:23:08] Speaker 01:
Then later, when he was indicted and it went to trial and the government sought to use that evidence against him,

[00:23:14] Speaker 01:
It was excluded, and the Supreme Court upheld that.

[00:23:17] Speaker 01:
So here, because it functions differently in different circumstances.

[00:23:21] Speaker 05:
But still, the speech or debate inquiry turns on what counts or doesn't count as a legislative act.

[00:23:32] Speaker 01:
I think I would say that there's two inquiries.

[00:23:36] Speaker 01:
One is, what is a legislative act?

[00:23:39] Speaker 01:
And then the second is, what is the specific protection afforded for the member of Congress for that act?

[00:23:45] Speaker 01:
And there's different components.

[00:23:46] Speaker 05:
I mean, you're just fighting, you're just trying to relitigate Rayburn and Brown and Williamson if you're saying there shouldn't be a testimonial privilege as opposed to a substantive immunity.

[00:24:02] Speaker 01:
I think it's the scope of what the non-disclosure protection entails.

[00:24:08] Speaker 01:
It protects confidentiality.

[00:24:10] Speaker 01:
And that protection is not at all in play when these materials are perfectly open to the public.

[00:24:18] Speaker 01:
And they're not open to the public.

[00:24:22] Speaker 05:
He doesn't hold his cell phone.

[00:24:24] Speaker 05:
A member doesn't hold a cell phone open to the public.

[00:24:28] Speaker 01:
Well, the communications are with members of public who could be subpoenaed, who a warrant could be issued to their emails.

[00:24:39] Speaker 01:
And so it's not in any way something that can only be obtained from a member.

[00:24:44] Speaker 01:
And it's similar to any other kind of confidentiality privilege.

[00:24:50] Speaker 01:
An attorney-client privilege is not kept in confidence, is not protected when it's made open to any member of the public in that manner.

[00:25:01] Speaker 05:
That's a good analogy for you, but what about, I was thinking, Exemption 7 of FOIA.

[00:25:12] Speaker 05:
the government is, the executive branch is investigating and in the course of doing that they speak to people in the world and they assemble a file recording what they have found out and what they're looking at and how they're deliberating.

[00:25:35] Speaker 05:
That's protected even though the communication is not with

[00:25:42] Speaker 05:
the defined person like your lawyer or your priest or your chief of staff.

[00:25:48] Speaker 05:
So why couldn't we think of this in that way?

[00:25:52] Speaker 05:
Building on the idea your friend put on the floor, which is that the privilege here runs with the act, not with the person to whom the member is communicating.

[00:26:09] Speaker 01:
I don't quarrel with the idea that the speech or debate privilege turns on the scope of legislative acts, but I would quarrel with the idea that every protection afforded by the speech or debate is connected to every single legislative act, and I think Helst-Dosky demonstrates that.

[00:26:28] Speaker 01:
The Supreme Court has been clear that when we're talking in the context of the speech debate clause, obviously the text itself talks about speech or debate in either house.

[00:26:40] Speaker 01:
The Supreme Court has made clear that it's gone beyond the text.

[00:26:44] Speaker 01:
But it is only done so when necessary to effectuate the purposes of the clause and when the conduct is integral to legislative activity, the processes.

[00:26:58] Speaker 01:
So I would say that insofar as this notion of a non-disclosure privilege

[00:27:04] Speaker 01:
Doesn't serve the very purposes of applying it to public acts.

[00:27:11] Speaker 01:
Doesn't serve the purposes it's intended to serve.

[00:27:13] Speaker 01:
It should not be extended any further.

[00:27:14] Speaker 05:
So let's separate out those two pieces.

[00:27:18] Speaker 05:
Whether there's a legislative act and whether the nondisclosure privilege applies.

[00:27:23] Speaker 05:
So just let's talk about the first issue.

[00:27:27] Speaker 05:
A member, there's a bill on the floor

[00:27:34] Speaker 05:
A member who is not on the relevant subcommittee is just trying to educate himself or herself, makes calls to experts outside the government and says, what do you think?

[00:27:51] Speaker 05:
What's your recommendation on how I should vote?

[00:27:54] Speaker 05:
Is that a legislative act?

[00:27:57] Speaker 05:
No, Your Honor, if it's not connected to a member trying to decide how to vote on a pending bill, seeking information to inform his vote.

[00:28:11] Speaker 01:
It is not a legislative act unless it is connected to the investigative fact-finding functions of Congress as a whole, its responsibility and authority to gather facts.

[00:28:23] Speaker 01:
You know, Watkins and other cases made clear that Congress, each chamber of Congress has the authority to collect facts and collect information to determine how to legislate.

[00:28:36] Speaker 01:
And it could exercise that function as a house, but what it does as a practical matter is it delegates it to committees.

[00:28:43] Speaker 01:
And those committees have subpoena power, they hold hearings, and that is how Congress exercises that function.

[00:28:50] Speaker 05:
And when it's done outside that function, it is not a integral to the integral to the... Integral part of the deliberative and communicative process by which members participate in hearings and vote.

[00:29:05] Speaker 05:
That's the rule statement from Gravel in cases like that.

[00:29:11] Speaker 01:
It says integral part of the deliberative and communicative process by which members participate in committee and house proceedings.

[00:29:17] Speaker 01:
And vote.

[00:29:20] Speaker 01:
with respect to consideration, well, it has to be integral to their participation in House proceedings.

[00:29:26] Speaker 01:
Yes, to vote, but.

[00:29:28] Speaker 05:
Okay, so the member, so the bill is on the floor and the member is trying to figure out how to vote.

[00:29:34] Speaker 05:
Not everything.

[00:29:35] Speaker 05:
You don't think it's integral that member, it's not integral to that member's vote?

[00:29:41] Speaker 01:
Not everything that occurs in a congressman's life that you can connect a logical inferential chain of inferences to a vote is protected by the speech or debate clause.

[00:29:56] Speaker 05:
No, it's a question of degree.

[00:29:58] Speaker 05:
How important, how closely related.

[00:30:02] Speaker 01:
And this court needs to, and in all cases determining the legislative act category, needs to draw lines.

[00:30:09] Speaker 01:
And the Supreme Court has made clear that when drawing lines outside of the text of speech or debate, that the courts need to balance, need to do a balancing between a rule that protects the legitimate prerogatives of Congress versus a rules that effectively cloak

[00:30:32] Speaker 01:
members of Congress with very broad, almost blanket immunity.

[00:30:37] Speaker 01:
And giving every member of Congress the idea that any kind of communication that could conceivably inform a vote on the House, in the House or the Senate, I mean, anything can come before the Senate.

[00:30:50] Speaker 01:
We know with budget resolutions, every facet of American life comes before Congress.

[00:30:57] Speaker 05:
And to say that... Suppose there's a pending bill on the floor, right?

[00:31:00] Speaker 05:
There's a pending bill

[00:31:02] Speaker 05:
on voter ID.

[00:31:07] Speaker 05:
And a member who's not on the subcommittee doesn't have subpoena power is thinking, well, gosh, this turns on whether voter fraud is a big problem or not.

[00:31:22] Speaker 05:
And it turns on whether this bill will have a big disparate impact on an identifiable group.

[00:31:30] Speaker 05:
I want to educate myself about those issues."

[00:31:34] Speaker 05:
And that member calls a civil rights group, a voter integrity group, and says, what do you think?

[00:31:41] Speaker 05:
Is there a problem here?

[00:31:44] Speaker 01:
It's obviously entirely proper for members of Congress to do that.

[00:31:47] Speaker 01:
Right.

[00:31:47] Speaker 01:
But it would seem like it's pretty tightly bound up in... But it's not connected to the fact-finding function of Congress, and therefore it is not sufficiently

[00:31:58] Speaker 05:
A member dealing with a pending vote on the floor who's not on the committee has no fact-finding function related to his vote.

[00:32:14] Speaker 01:
Well, they have the ability, and it's certainly within their, as an official, that is within their office as a member of Congress to do that, but it is not, does not fall within the legislative acts.

[00:32:25] Speaker 01:
And I would draw the comparison that your honors discussed earlier with Brewster and Helstosky.

[00:32:32] Speaker 01:
That drew the distinction between the actual votes on the floor of the House and discussions that preceded it.

[00:32:40] Speaker 01:
In that case, it was discussions about an offer to accept an offer for a bribe, but it did not turn on the criminality.

[00:32:50] Speaker 01:
It couldn't turn on the criminality there.

[00:32:52] Speaker 01:
It had to do with the fact that it preceded the core voting of a member of Congress.

[00:32:58] Speaker 00:
Do you have to have some account of why a committee's investigation and fact finding is a legislative act, but a member's similar activity is not?

[00:33:11] Speaker 00:
I don't think you can just turn on authorization or formality, right?

[00:33:16] Speaker 00:
Because there's this idea that this committee fact-finding is covered.

[00:33:20] Speaker 00:
Why would an individual member's fact-finding not be covered?

[00:33:24] Speaker 00:
I think you need to have some account of that that is at least to my mind not about authorization

[00:33:29] Speaker 00:
or formality.

[00:33:30] Speaker 01:
I think a lot of people have formulated it as formal and informal.

[00:33:35] Speaker 01:
I'm not sure we embraced that.

[00:33:37] Speaker 00:
I know we did that as well in our order, but I'm not sure if that's the best label.

[00:33:41] Speaker 01:
I think what you have to do is connect what a member does to the procedures and proceedings in Congress.

[00:33:51] Speaker 01:
Congress, and obviously voting is a proceeding.

[00:33:57] Speaker 00:
Introducing legislation is a proceeding.

[00:33:59] Speaker 01:
Introducing legislation, but I think what Brewster and Ostosky established is that discussions with members of the public preceding a vote is not legislative activity.

[00:34:10] Speaker 00:
And why is that?

[00:34:11] Speaker 01:
because it's too attenuated.

[00:34:13] Speaker 01:
I think what the Supreme Court says is that conduct incidentally related to the legislative affairs, but not part of the legislative process itself.

[00:34:22] Speaker 01:
And if you look at all the cases that the Supreme Court has ruled on, it's introducing proposed legislation, placing material on a congressional record, authorizing a committee investigation, questioning witnesses at a committee hearing, subpoenaing in a committee hearing, publishing committee reports,

[00:34:37] Speaker 01:
delivering a speech on the House of the floor, voting on resolutions, a member's missives to members of the public bear no family resemblance to those at all.

[00:34:45] Speaker 01:
They don't.

[00:34:46] Speaker 01:
And what they are are they resemble what the court specifically concluded was not covered in Bruce Dern and Halstotzky, which are discussions that precede legislation about that legislation.

[00:34:57] Speaker 01:
Sorry, finish.

[00:34:59] Speaker 01:
I'm sorry.

[00:35:00] Speaker 01:
I mean, if a member of Congress talks about

[00:35:04] Speaker 01:
a piece of legislation with an interest group and says I'm with you, I agree with you, that's not covered under Elstosky and Brewster because it is not integrally related to legislative procedures.

[00:35:15] Speaker 01:
There has to be a linkage.

[00:35:16] Speaker 01:
When you're going beyond the text, there has to be a linkage and that balances the idea of protecting prerogatives but not cloaking members with boundless protection.

[00:35:28] Speaker 01:
It is a tricky line.

[00:35:30] Speaker 01:
I think that McSurly struck a good balance.

[00:35:33] Speaker 01:
It struck a good balance.

[00:35:34] Speaker 01:
And it's an amenable rule.

[00:35:37] Speaker 01:
It's an amenable rule, which is a virtue in the context of privileges to have a clear amenable rule.

[00:35:44] Speaker 01:
We think McSurly does that.

[00:35:45] Speaker 01:
We think McSurly balances the progress of Congress with the dangers of cloaking members with broad protections.

[00:35:57] Speaker 00:
I have another question about the nondisclosure aspect of this.

[00:36:02] Speaker 00:
I think that for nondisclosure privileges there likely has to be some type of two-step process.

[00:36:09] Speaker 00:
It has to be a legislative act and it has to not be waived because all nondisclosure privileges operate with some type of waiver concept.

[00:36:20] Speaker 00:
So if we assume that that is the framework, and even if we assume that a whole range of communications are legislative acts, I think the question of waiver is how does it apply between members of Congress?

[00:36:34] Speaker 00:
So to what extent is something confidential if member A shares something with member B or staff of member A or B?

[00:36:46] Speaker 00:
How far does the confidentiality extend?

[00:36:48] Speaker 00:
Maybe the confidentiality doesn't extend if it goes to a third party outside of Congress, but to what extent does the confidentiality attach if the communications are between members?

[00:37:01] Speaker 00:
There are no real cases, as far as I can tell, that speak to how the privilege might operate between members, and I think that's in part because

[00:37:09] Speaker 00:
Brown and Williamson and Rayburn are the only two cases talking about this non-disclosure privilege and it hasn't been fleshed out.

[00:37:16] Speaker 00:
It's not been recognized in other circuits.

[00:37:19] Speaker 00:
So I think that is a hard question.

[00:37:21] Speaker 00:
I'm wondering what the government thinks about that.

[00:37:24] Speaker 01:
I think that at a minimum the most expensive conception of this non-disclosure privilege would only encompass communications that involve

[00:37:41] Speaker 01:
members and their staff and no member of the public or the executive branch.

[00:37:45] Speaker 01:
There might be situations where it's narrower.

[00:37:49] Speaker 01:
I think that might have to be addressed in a future case that arises.

[00:37:53] Speaker 00:
I think in this case... What about between members?

[00:37:56] Speaker 01:
Yeah, I think that between members the non-disclosure privilege would apply under the logic of Rayburn.

[00:38:04] Speaker 00:
So there would be no waiver as between, like it would be within Congress if it was between members.

[00:38:09] Speaker 01:
I think that's my understanding of the best reading of Rayburn is that it's the non-disclosure privilege is intended to

[00:38:20] Speaker 01:
avoid a chill on deliberation.

[00:38:24] Speaker 01:
It doesn't use the word deliberations.

[00:38:25] Speaker 01:
It uses the word interactions, I think, between members of Congress.

[00:38:31] Speaker 00:
If between members there's no waiver, that still leaves a question of whether communications between members or staff are legislative acts.

[00:38:41] Speaker 03:
Yes.

[00:38:42] Speaker 00:
Is it the government's view that all such communications would be legislative acts or some member communications would not be legislative acts?

[00:38:48] Speaker 00:
Absolutely not.

[00:38:49] Speaker 01:
I mean, I think that it's the most, I think that the non-disclosure privilege can only apply to those communications kept in confidence, but that then it only applies to those communications that qualify as legislative acts.

[00:39:04] Speaker 00:
And not everything between two members or staff would be committed.

[00:39:07] Speaker 00:
No, absolutely not.

[00:39:08] Speaker 01:
Right.

[00:39:08] Speaker 01:
I mean, the orders for lunch wouldn't be covered.

[00:39:11] Speaker 05:
But a member, one member deciding how to vote on a bill pending on the floor reaches out to a colleague.

[00:39:23] Speaker 05:
You know, it's a colleague who was on the committee and knows the facts better.

[00:39:28] Speaker 05:
And the first member says to the second, what's the situation on the ground?

[00:39:33] Speaker 05:
What are the facts?

[00:39:34] Speaker 05:
And that member answers the question.

[00:39:37] Speaker 05:
Is that covered?

[00:39:39] Speaker 05:
I think that would be covered.

[00:39:40] Speaker 05:
It's a little bit of an odd line.

[00:39:42] Speaker 05:
The member who is looking to educate himself on the facts and reaches out to a colleague for help

[00:39:52] Speaker 05:
That's covered, but an identically situated member facing the same vote on the same pending bill reaches out to an expert in the world for advice, and that's not covered.

[00:40:04] Speaker 01:
Yes, I mean, I think that that is the line the Supreme Court is drawing.

[00:40:07] Speaker 01:
Gravel, they talked about preparations for a committee hearing between a member and his staff, and I think that they would probably put preparations.

[00:40:15] Speaker 01:
with other members of Congress on the same footing.

[00:40:18] Speaker 01:
And that there's enough of a link to an actual legislative proceeding there.

[00:40:24] Speaker 01:
Because I think in your hypothetical, you're talking about Americans actually on the committee that has the authority to conduct the investigation.

[00:40:32] Speaker 01:
So all those factors link it to a, put it within what the Supreme Court has determined would be close enough of a link to qualify.

[00:40:43] Speaker 05:
Let me give you one more.

[00:40:45] Speaker 05:
chairman of the subcommittee that's authorized to investigate and including through coercive subpoenas and such and you are deciding whether or not to hold hearings and as part of that inquiry the subcommittee chairman reaches out informally to the interest group and says

[00:41:10] Speaker 05:
Is this issue a problem?

[00:41:13] Speaker 05:
They have a conversation.

[00:41:14] Speaker 05:
And then the possible hearing dies on the vine.

[00:41:19] Speaker 05:
There's never a formal authorization.

[00:41:21] Speaker 05:
There are never subpoenas.

[00:41:22] Speaker 05:
Is that conversation a legislative act?

[00:41:25] Speaker 01:
I think it would be.

[00:41:26] Speaker 01:
I think it would be.

[00:41:27] Speaker 01:
A legislative act.

[00:41:28] Speaker 01:
Because what the court said mixed early is that you can't know whether to issue a subpoena.

[00:41:33] Speaker 05:
So the line can't be formally authorized or not.

[00:41:37] Speaker 05:
It's not hypothetical.

[00:41:38] Speaker 01:
It was never embraced, formally authorized.

[00:41:40] Speaker 01:
What we think is that it has to be connected to the Congress's exercise of its investigative fact-finding authority.

[00:41:48] Speaker 01:
I'm sorry.

[00:41:49] Speaker 05:
I thought that was your whole theory of McSurly and the 10th Circuit case, Bastion.

[00:41:58] Speaker 01:
I just don't think we'd use the formulation of formal.

[00:42:01] Speaker 01:
I think what it means is there has to be a connection with Congress's exercise of its fact-finding authority, which means if you look at what happens is... McSurly is about information gathering.

[00:42:16] Speaker 05:
It's in the subcommittee.

[00:42:18] Speaker 05:
And we use the we have the phrase requirement of congressional authorization and the district court here took that to be.

[00:42:29] Speaker 05:
the governing rule, and I think you embrace that.

[00:42:32] Speaker 01:
Well, I think what Mixerley says, and what we don't dispute, is that informal fact gathering in connection with a committee hearing, which is what Mixerley specifically said, is covered.

[00:42:44] Speaker 01:
So the formal informal is not the demarcation.

[00:42:47] Speaker 01:
It's connection with the congressional.

[00:42:49] Speaker 00:
Is the demarcation, whether it's an institutional act of Congress,

[00:42:55] Speaker 00:
Congress as an institution as opposed to members acting individually?

[00:43:00] Speaker 00:
I mean, how conceptually should we understand this line?

[00:43:03] Speaker 01:
It's when the fact-finding is connected to Congress's exercise of a investigatory authority.

[00:43:12] Speaker 01:
So there's a proceeding.

[00:43:13] Speaker 01:
There's a legislative proceeding that is aimed at fact-gathering.

[00:43:18] Speaker 01:
And that's why there's a connection.

[00:43:20] Speaker 00:
But why is an individual member's fact-finding not a legislative proceeding?

[00:43:25] Speaker 00:
So the member is thinking, I'm trying to decide whether to introduce a bill.

[00:43:29] Speaker 00:
which is a power that every member of Congress has as an individual to introduce a piece of legislation.

[00:43:36] Speaker 00:
Why is fact-finding that is a precursor to that type of activity not included?

[00:43:41] Speaker 01:
Well, it's on the same footing as what happened in Brewster and in Halstosky.

[00:43:45] Speaker 01:
And it's because it's not everything that a member of Congress does that's perfectly legitimate, acceptable, even expected is covered as specific.

[00:43:55] Speaker 00:
Why is the difference between the member and the committee?

[00:43:59] Speaker 00:
So if a committee is thinking about, as like a group, is thinking about whether to introduce legislation, that

[00:44:05] Speaker 00:
committee's activity, I take it, you're saying is covered, right?

[00:44:09] Speaker 00:
So there has to be some reason to separate the institutional parts of Congress from the member.

[00:44:16] Speaker 01:
Because what the Supreme Court president establishes is that there needs to be a sufficient linkage

[00:44:22] Speaker 01:
with a process in Congress.

[00:44:27] Speaker 01:
And each House of Congress has the authority, the implicit authority to investigate, to develop facts, to determine facts in aid of its other constitutional responsibilities.

[00:44:40] Speaker 01:
And each house can determine how it wants to do it, however it wants it.

[00:44:45] Speaker 01:
It doesn't have to do it through committees.

[00:44:47] Speaker 01:
It could give every single member of the house subpoena power.

[00:44:49] Speaker 01:
There'd be chaos, but it could do that.

[00:44:52] Speaker 00:
And if that was the case.

[00:44:52] Speaker 00:
I mean, it's not just the subpoena power that's protected for committees.

[00:44:55] Speaker 00:
It's any sort of fact-finding.

[00:44:58] Speaker 00:
And so at the granular level, there could be committee proceedings.

[00:45:02] Speaker 00:
But each member thinking about whether to introduce legislation is a kind of mini-proceeding.

[00:45:10] Speaker 00:
Maybe.

[00:45:11] Speaker 00:
I mean, why isn't it in the government's view?

[00:45:15] Speaker 00:
Where is the line?

[00:45:16] Speaker 01:
Well, if that were the case, then any kind of conversation with anyone about any vote whatsoever would be covered.

[00:45:24] Speaker 01:
It just isn't because that would relate to a vote.

[00:45:28] Speaker 01:
And that's just not the line.

[00:45:29] Speaker 01:
It would be too expansive.

[00:45:32] Speaker 01:
There has to be a demarcation that balances the values.

[00:45:36] Speaker 01:
of the speech debate clause and the demarcation that would permit anything where there could be an inferential line of logical inferences that connects something to a vote would just be too expansive, would cloak members, would make them super citizens is what the Supreme Court said.

[00:45:55] Speaker 01:
I think that what we're talking about here is very...

[00:46:00] Speaker 05:
Member is on a subcommittee that has formally authorized an investigation and that member does the informal calls to groups.

[00:46:14] Speaker 05:
Not a subpoena to haul them in, just starts, you know, call it developing the record.

[00:46:20] Speaker 05:
If you want to be charitable, call it snooping around.

[00:46:23] Speaker 05:
If you want to be uncharitable, the member is on the phone.

[00:46:27] Speaker 05:
finding out whatever he or she can find out.

[00:46:30] Speaker 05:
Is that covered?

[00:46:31] Speaker 01:
Under Mr. Lee, that would be covered.

[00:46:33] Speaker 01:
That would be an informal fact gathering that's aimed at, that's integral to the exercise of Congress's fact finding authority.

[00:46:45] Speaker 05:
You're putting a lot of weight on this formal authorization by the subcommittee, which makes sense as a requirement

[00:46:57] Speaker 05:
for the issuance of coercive process, for hauling in someone pursuant to a subpoena.

[00:47:03] Speaker 05:
There are lots of reasons why you don't want any one member able to do that.

[00:47:08] Speaker 01:
Well, I think it's really appropriately, it made a principled line where it said,

[00:47:16] Speaker 01:
Obviously committees, they gather facts through hearings, subpoenas, sometimes depositions.

[00:47:23] Speaker 01:
But in order to do that, there has to be some level of ability to figure out who to subpoena, who to call in, what witness to call in for a hearing.

[00:47:32] Speaker 01:
And so if there's a connection with that type of activity and this, if you want to call it informal activity, that is sufficient to make it an act that's integral to the procedures of Congress.

[00:47:47] Speaker 01:
But if some member of Congress just makes a missive to someone randomly, like, for example, the Senate has the power of advice and consent for nominees and there are

[00:47:57] Speaker 01:
committees that have cold hearings, they gather information, and they question the nominees, and they go out into the world and collect information.

[00:48:10] Speaker 01:
But if some other member of the Senate just thinks that they might want to find something out and goes and interviews someone out in the world, that is not sufficiently integral.

[00:48:21] Speaker 01:
to the procedures of Congress, to the processes of Congress to qualify under the test that the Supreme Court vote.

[00:48:28] Speaker 05:
A member deciding whether or not to vote to confirm a Supreme Court justice can't call people who know the nominees.

[00:48:36] Speaker 05:
They can call.

[00:48:37] Speaker 05:
That's not integral to the vote.

[00:48:39] Speaker 05:
It's not a responsible exercise of that legislative function.

[00:48:43] Speaker 01:
It is responsible and it's an appropriate exercise of the official, in a member's official capacity.

[00:48:53] Speaker 01:
But it is not, it's not.

[00:48:56] Speaker 01:
It's not integral to the vote.

[00:48:58] Speaker 01:
It's not integral to legislative processes.

[00:49:00] Speaker 01:
It has to be your position.

[00:49:01] Speaker 01:
Because if that were the case, then almost everything would be covered, Your Honor.

[00:49:07] Speaker 01:
It goes too far.

[00:49:09] Speaker 01:
At a minimum, there has to be some standard that excludes everything that could possibly be characterized as gathering information.

[00:49:19] Speaker 01:
There has to be something.

[00:49:20] Speaker 01:
I mean, the Third Circuit has a formulation that we don't embrace, but at a minimum, it requires fact-finding.

[00:49:26] Speaker 01:
in the district court to say, is this a bona fide, is this conduct, is the predominant purpose of this conduct fact gathering, is that the bona fide reason for that conduct?

[00:49:39] Speaker 01:
And the district court has to make fact finding about that.

[00:49:41] Speaker 01:
I think we could even more teeth into it if the court were inclined to go in that direction, but we think McSurley's better.

[00:49:46] Speaker 01:
But we would say that there has to be a specific link between a bona fide, the activity has to be predominantly for fact finding, it has to be the bona fide reason for the fact finding,

[00:49:55] Speaker 01:
and there has to be a very direct link with something that's actually in Congress, that is pending in Congress, whether it's some actual bill that's there.

[00:50:09] Speaker 00:
Is the government's position that there has to be a proceeding in Congress and that the member's action has to be a part of that proceeding, not merely related to that proceeding?

[00:50:25] Speaker 01:
The acts of the member of Congress has to be integral to its participation in a proceeding of Congress.

[00:50:40] Speaker 01:
And when that comes to fact-finding, there's a method that Congress engages in fact-finding.

[00:50:46] Speaker 01:
And so the linkage.

[00:50:47] Speaker 00:
So it does have to be sort of part of the proceeding of fact-finding.

[00:50:50] Speaker 00:
Because, I mean, in your line, you're saying,

[00:50:52] Speaker 00:
a senator calling an outside group about a judicial nominee.

[00:50:56] Speaker 00:
is not covered, but asking questions at a hearing to the nominee or to outside groups that come in to speak about the nominee would be covered.

[00:51:08] Speaker 00:
Is that the line that you're drawing?

[00:51:09] Speaker 01:
If the Senator were on the committee and were engaging in those calls to figure out who to put as a witness, maybe a subpoena or things of that sort, that would be covered under McSurly.

[00:51:22] Speaker 00:
What if a member of the committee, the Judiciary Committee calls

[00:51:27] Speaker 00:
someone on the ABA and just to talk to them about a candidate.

[00:51:32] Speaker 00:
or to someone in any group.

[00:51:33] Speaker 01:
I think that under McSurley that would probably be covered and that might be a harder question because there might not be a link with the actual exercise of fact-finding and it might be more of the individual members informational purposes.

[00:51:46] Speaker 01:
But if the purpose of the head of the committee, the judiciary committee contacting someone in the ABA was to decide how are we going to go about this hearing to gather facts about this nominee, under McSurley I think that would be covered.

[00:51:59] Speaker 01:
But if it's just some other member of Congress who just wants to know something and it goes out and interviews people, that does not have a sufficient- Well, they want to know something because a nomination is pending before the Senate, a nomination that they're going to have to vote on.

[00:52:15] Speaker 00:
Why is that not a proceeding?

[00:52:17] Speaker 01:
It's appropriate and it's appropriate to get information, but it's just not enough to come within the legislative acts.

[00:52:23] Speaker 01:
So for example, there's a lot of things that members do that are very important to their legislative conduct.

[00:52:28] Speaker 01:
They tried to gather support for their bills by putting out news releases and by making speeches off the House outside of Congress.

[00:52:39] Speaker 01:
A speech outside of Congress is not covered, no matter how important it is to get to a vote in Congress.

[00:52:45] Speaker 01:
And it should not matter that, it should not transform into protected conduct if at the end of a speech the member of Congress asks for information from the public.

[00:52:56] Speaker 01:
If they have a speech and then say, does anyone have any input that I can have, that would be protected under this broad theory that the appellant proposes here.

[00:53:05] Speaker 01:
I mean, maybe yes, maybe no, right?

[00:53:08] Speaker 05:
Could be that that sentence isn't covered.

[00:53:12] Speaker 05:
Could be that we apply a predominant purpose test and say that speech isn't covered.

[00:53:19] Speaker 05:
Your position is that no informal outreach is covered, no matter how pure, no matter how exclusively the purpose is gathering, no matter how soon the pending bill is to be voted on.

[00:53:39] Speaker 01:
if it's outside the fact-gathering authority of either house.

[00:53:44] Speaker 01:
Now, if it's within the fact-gathering authority of the house, and it's this type of informal activity under mixed sorority, it's covered.

[00:53:52] Speaker 01:
But we think that the line that mixed sorority draws is appropriate, the balancing there.

[00:53:57] Speaker 01:
It balances between a huge cloak of privilege versus what's necessary and sufficient to extend the protections beyond its language.

[00:54:09] Speaker 01:
And in this context, we think that the balance that mixed early strikes is appropriate.

[00:54:15] Speaker 01:
And if this court is inclined to move from mixed early, at a minimum, there has to be something with sufficient teeth to exclude the broad range of activity that the appellant's formulation would encompass.

[00:54:32] Speaker 01:
I think their formulation is,

[00:54:34] Speaker 01:
Anything that's in connection with or in aid of an activity that qualifies as legislative in nature, that's everything.

[00:54:40] Speaker 01:
I mean, that's everything a congressman does, wakes up in the morning, that could be, that's covered.

[00:54:47] Speaker 01:
And the Supreme Court, if you look at the family, if you look at all the stuff that the Supreme Court has said is protected and isn't protected, an informal fact-finding of the sort that's outside a committee investigation is much

[00:55:02] Speaker 01:
is much more similar to what's not protected.

[00:55:04] Speaker 01:
It's much more similar to newsletters, to speeches outside of Congress.

[00:55:09] Speaker 01:
And it's much less similar to questioning someone in committee, to offering a bill, to voting, to speech.

[00:55:16] Speaker 01:
I mean, if you look at what the Supreme Court has concluded is protected, it bears no resemblance to the kind of making a phone call or sending an email to someone, a missive out to someone in the public.

[00:55:26] Speaker 01:
It just is not

[00:55:27] Speaker 01:
In any way, similar.

[00:55:28] Speaker 01:
And it should not be extended to that.

[00:55:30] Speaker 01:
It would be a huge expansion of what the speech and debate clause covers.

[00:55:36] Speaker 01:
It would be a huge step toward making members super citizens.

[00:55:41] Speaker 01:
And it's not the step that this court should take.

[00:55:44] Speaker 05:
In other contexts involving preparation, investigation, I'm thinking Gravel and Brewster from the Supreme Court, McSurly from our court,

[00:55:57] Speaker 05:
One clear carve out of things that aren't covered is that investigations are covered, but when the investigating act itself violates a separate criminal statute, that's not covered.

[00:56:18] Speaker 05:
the member who has a conversation about a bribe, that's a separate act which you can investigate and prosecute, or in the context of coercive power to investigate, you can execute a search warrant, but it has to be constitutional.

[00:56:40] Speaker 05:
So why can't we solve your legitimate

[00:56:45] Speaker 05:
law enforcement interests by just saying we are only talking about the informal communication by which the member acquires information.

[00:57:01] Speaker 05:
And that in no way immunizes the bribe or any other crime that could be committed through a verbal act.

[00:57:11] Speaker 01:
Well, I think if this court were saying that anything that could possibly be criminal evidence in a criminal case wouldn't be covered under the non-disclosure clause, we would be prepared to embrace that.

[00:57:22] Speaker 01:
If you're saying that fact gathering that is at a minimum, if there's probable cause to believe it could provide evidence of criminality, at the minimum, at the non-disclosure stage, that would

[00:57:41] Speaker 01:
that would be perfectly appropriate.

[00:57:43] Speaker 01:
I think it's a harder question that once you obtain that and then you go beyond non-disclosure to use, I think there could be some line drawing questions with that type of standard.

[00:57:55] Speaker 01:
I mean, I think that if it's, if what your honor is saying is that informal fact gathering that is linked with criminality is not covered, that

[00:58:07] Speaker 01:
that I'm not sure that that is, that might be a workable standard, but I don't know that that's, I'm not sure that's even where McSurly goes, but it at least would strike a better balance than this idea that any kind of, anything that provides some sort of information to a member.

[00:58:29] Speaker 05:
I thought it sort of was where McSurly went, because we said on the one hand,

[00:58:38] Speaker 05:
the kind of investigation, the kind of activity at issue which was gathering information by subpoena was legislative.

[00:58:53] Speaker 05:
And then we said it might not be protected because there was

[00:58:58] Speaker 05:
was adequately pled that the subpoena was executed through unlawful means.

[00:59:05] Speaker 05:
So that's the kind of line I was trying to get at with my question.

[00:59:10] Speaker 01:
Well, I think if the collection is through unlawful means might be different than the fact-gathering could be evidence of a criminality, right?

[00:59:22] Speaker 01:
So I think immiscerally the evidence was collected through arguably there was disagreement about whether it was a Fourth Amendment violation.

[00:59:29] Speaker 01:
So it was the act of collection that maybe excluded that.

[00:59:34] Speaker 01:
But if your honors are inclined to say, well, any informal fact gathering that is linked to criminality, that would be a better standard that better balances the idea that informal fact gathering should not be a cloak for immunity.

[00:59:53] Speaker 00:
Wouldn't that run against the Supreme Court's view that we have to take

[00:59:59] Speaker 00:
These categories as categories and wouldn't require a court to look behind them at the motives of the fact finding so a rule that says informal fact finding is protected.

[01:00:10] Speaker 00:
But not for criminal activities.

[01:00:14] Speaker 00:
seems to both run against the idea of having a categorical rule and the idea that we can't look at the motives of real legislative acts.

[01:00:23] Speaker 01:
There could be some tension there.

[01:00:25] Speaker 01:
I think that, for example, Brewster and Hostosky, when they're talking about all their conversations that precede legislative acts voting, I don't think it turns on the fact that there was an illegal

[01:00:37] Speaker 01:
a bribe there, it was the fact that these types of conversations about offers, these pre-vote conversations are not covered, which is why we think that this type of fact gathering should not be covered, because it's really on all fours with that type of conduct.

[01:00:52] Speaker 01:
But there is some authority in the Supreme Court about

[01:01:00] Speaker 01:
effectively authorizing conduct and then executing that conduct.

[01:01:06] Speaker 01:
I think it's, for example, I think in the Kilbourne case you had a Congress authorize an investigation and then a

[01:01:20] Speaker 01:
a someone who was working for the committee went out and I think arrested someone to, I think, I don't quote me on the facts, but I think that that's what that person did in connection with the hearing.

[01:01:31] Speaker 01:
And the Supreme Court held that the voting on the authorization was protected, but not the

[01:01:38] Speaker 00:
You could make that same line between informal fact-finding that's a criminal activity.

[01:01:44] Speaker 00:
I'm not sure.

[01:01:45] Speaker 00:
I mean, that gap isn't, that distinction doesn't apply.

[01:01:47] Speaker 01:
I mean, I think as applied here, really, it means that the activities connected to the committee proceedings are protected, but going out and missing someone else is not really, I think,

[01:02:00] Speaker 01:
regardless of criminality.

[01:02:02] Speaker 01:
I think that's the best line.

[01:02:04] Speaker 01:
I think that that is really faithful to Supreme Court precedent and it strikes the appropriate balance.

[01:02:11] Speaker 00:
Can I just ask one question?

[01:02:12] Speaker 00:
I mean, if you have any evidence of the original meaning of the speech and debate clause and whether that covered this type of individual member fact-finding.

[01:02:22] Speaker 00:
I mean, since this is not, like, a question arguably squarely addressed by the Supreme Court.

[01:02:28] Speaker 01:
We're not aware of anything that would cover anything along these lines.

[01:02:32] Speaker 01:
I mean, it kind of... From what we know, it was...

[01:02:40] Speaker 01:
You know, there was obviously no emails.

[01:02:42] Speaker 01:
The ease of getting all of these, that type of information was not available.

[01:02:45] Speaker 01:
It was really much linked to physical presence and that type of activity that occurred within a, within Congress.

[01:02:56] Speaker 05:
What's wrong with the way the district court in the Graham case drew the line?

[01:03:04] Speaker 05:
You know, Judge Rao has a

[01:03:07] Speaker 05:
great point about categories and you can't probe motive.

[01:03:13] Speaker 05:
The district court in Graham said you can look at the communications on their face and make a judgment whether they reflect gathering of information to inform things that the senator would do as a senator and that would be covered.

[01:03:35] Speaker 05:
or other communications might reflect cajoling action by someone outside of Congress, and that would not be covered.

[01:03:45] Speaker 01:
I think when you link that up with Rayburn, you've got a totally unworkable situation for district courts and this court.

[01:03:52] Speaker 01:
You're going to have huge amounts of documents where every single one needs to be looked through individually.

[01:03:58] Speaker 01:
And it's an ex parte proceeding.

[01:04:02] Speaker 01:
And insofar as the appellant, the member doesn't come forward with that type of stuff.

[01:04:07] Speaker 01:
It wouldn't meet the burden.

[01:04:08] Speaker 01:
It would be entirely unworkable.

[01:04:09] Speaker 01:
But I also think it's just inconsistent with Supreme Court case law for all the reasons we've discussed here today.

[01:04:14] Speaker 01:
It's unworkable, it doesn't draw a clear line, it doesn't make that appropriate line, appropriate balance.

[01:04:19] Speaker 05:
Why is it any more problematic than any other privilege which has whatever elements it has and the district court has to make judgments about whether the privilege applies to the disputed communication?

[01:04:35] Speaker 05:
I used to litigate tobacco cases and there were privilege logs running thousands of pages on whether particular communications were attorney client or not and someone would have to decide that.

[01:04:53] Speaker 01:
In our experience, you don't have a procedure where a district judge goes through thousands of documents and that determination is then appealed.

[01:05:03] Speaker 01:
There might be a few documents, there might be some portion of documents.

[01:05:07] Speaker 05:
Okay, so you're smuggling in your jurisdictional argument, which is fine, but I understand.

[01:05:13] Speaker 05:
Anything else?

[01:05:16] Speaker 05:
Was that?

[01:05:18] Speaker 05:
Judge Henderson, we might have a logistical issue.

[01:05:21] Speaker 05:
Judge Henderson, are you there?

[01:05:22] Speaker 05:
Okay, I'm told we might have a logistical issue with her, so you want to just wrap up.

[01:05:31] Speaker 05:
We're done with our questions, so I'll give you 30 seconds.

[01:05:37] Speaker 01:
Thanks.

[01:05:38] Speaker 01:
As I started with, we did discuss a lot about the nondisclosure privilege and the fact gathering that might be protected, but I would want to just, again, frame this for how the court should consider it as a logical matter.

[01:05:53] Speaker 01:
Obviously, jurisdiction has to be covered first.

[01:05:55] Speaker 01:
And then whether it extends beyond the congressman's office, whether this court needs to review the thousands of documents, and then whether the non-disclosure privilege narrows that.

[01:06:07] Speaker 01:
And then only then, if the court has to review all the 2,000 documents and it's narrowed,

[01:06:14] Speaker 01:
to a much smaller amount, then the court gets into this notion of the scope of the legislative acts and the extent to which fact gathering is.

[01:06:25] Speaker 01:
And for all these reasons, we think that at various points, affirmance or dismissal is appropriate.

[01:06:30] Speaker 01:
We appreciate your argument.

[01:06:32] Speaker 01:
Thank you very much.

[01:06:32] Speaker 04:
Thank you.

[01:06:37] Speaker 04:
Ron, two quick points.

[01:06:39] Speaker 04:
Ron, the government's position and the district court's position

[01:06:43] Speaker 04:
regarding the formality required simply does not work because the minority in Congress doesn't have special authorization to conduct any fact-finding, right?

[01:06:59] Speaker 04:
So if the government's position would be adopted by the court, that would mean that only the majority could conduct fact-finding.

[01:07:09] Speaker 04:
On its face, Your Honor, I think that that position not only flies in the face of case law, but also is a practical impossibility to say that half of the Congress has no speech or debate or privilege because any fact finding that it might do is not authorized by a committee or by the House.

[01:07:28] Speaker 04:
The other point I wanted to make, Your Honor, was

[01:07:31] Speaker 04:
The issue of legislative act is not hypothetical in our case.

[01:07:38] Speaker 04:
Council talked about hypothetical legislative acts and whether or not fact finding was connected to

[01:07:44] Speaker 04:
those acts.

[01:07:45] Speaker 04:
What we have in the facts of this case are two pending matters that the appellant was investigating his fact finding.

[01:07:54] Speaker 04:
One was the his vote that was coming up on January 6th regarding the electoral account act.

[01:08:01] Speaker 04:
And the other was the for the people act H. R. One that had been passed by the by the majority in the house on January 3rd 2021 just three days earlier.

[01:08:12] Speaker 04:
So this fact-finding was not hypothetical.

[01:08:15] Speaker 04:
It was done for legislative reasons, within a legislative sphere, and for that reason, Your Honor, is subject to speech and paper.

[01:08:25] Speaker 05:
Thank you, Counsel.

[01:08:27] Speaker 05:
We have tried to

[01:08:30] Speaker 05:
make as much of this argument public as we can.

[01:08:34] Speaker 05:
Obviously, these interests have some public interest.

[01:08:38] Speaker 05:
We have pending before the court a motion to unseal other parts of this proceeding.

[01:08:45] Speaker 05:
We will act on that in due course.

[01:08:48] Speaker 05:
For now, we would like to speak with the parties about some issues that we can't discuss in open court, so we will take a brief recess while the CSOs clear the courtroom and then we'll be back with the parties in closed session.

[01:09:04] Speaker ?:
Thank you.