[00:00:01] Speaker 00:
Case number 22-22-22, Sean Musgrave, the appellant, versus Mark Warner, sheriff, and Senate sales committee on intelligence.

[00:00:10] Speaker 00:
Mr. McClanahan for the appellant, Mr. DeLaro for the appellees, Mr. Fulham, and Mr. MacCuse-Curriani.

[00:00:21] Speaker 04:
Good morning, Your Honors.

[00:00:22] Speaker 04:
My name is Kevin Clenehan.

[00:00:23] Speaker 04:
I'm here on behalf of Sean Musgrave, the appellant in this case.

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Most of the questions that you would have to resolve in this case were addressed in the previous case.

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And so we can sort of skip straight to the sticky questions that are unique to this case that separated from everything else.

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Mr. Musgrave does not dispute that privilege is absolute.

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when it applies.

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We dispute that it does not apply and that the district court's reliance on the previous statement that committee reports are protected necessarily implied in that case or where appropriate and that not all committee reports are protected just like not all fact-finding is protected as this court held in Ray Shield case discussed before.

[00:01:19] Speaker 04:
This report has a unique pedigree where when it was ordered to be compiled, it was ordered to be compiled for dissemination, for being presented to the government.

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I mean, you pointed to things in the record that support that purpose, but it seems

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quite counterintuitive to infer that there was some exclusive purpose.

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I mean, the notion was this was going to become a touchstone for all kinds of reform efforts throughout government, presumably including legislative efforts.

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I mean, that is what congressional investigation principally is about.

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Plus, something can be

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a report and investigation can be undertaken with the purpose of informing a decision not to legislate.

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So I think you're maybe placing more on the purpose to inform and help perhaps educate CIA actors than it can bear.

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And that is a well taken point.

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I think that the distinction here and why this is an edge case is that not only was the stated intention to be for the benefit

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the executive branch and for the public, but the actions were for the benefit of the executive branch that when it was completed, it was immediately sent to the executive branch.

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It was not held for deliberations and the quotes, as you pointed out, were even from

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Senator Burr, who tried to claw it back, said that the study does not offer any recommendations.

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And I think that the key part here is that Bravel and Doe and Hutchinson all talk about

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the deliberate nature of the records, the purpose for the deliberative process, and making this feature debate sort of an uber version of the deliberative process privilege.

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I understand that that's your theory.

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But if we disagree, if we look objectively at the nature of the act, as the Supreme Court describes the inquiry in Bogan versus Scott Harris, if we say it is a constitutionally

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authorized and predicted activity of the Congress to investigate and write reports?

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Is that the end of your case?

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There can be, in any field of law, an authorized act that is not privileged.

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That was the core of NRA's sealed case, was not everything that is authorized, not everything that is within Congressman Perry's official duties was privileged.

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And the question here is, is it privileged?

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And everything else in this case

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relies on that termination because documents supposed to be released publicly it was it was put through declassification review there was a lot of negotiation between the different branches and the only reason the executive branch or sorry the only reason the executive summary was all that was released was

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because the CIA and the White House said it's gonna take 846 years to review the whole document.

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And Senator Feinstein and Assisi said, we'll just do the executive summary, we'll get the rest later.

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And piggybacking on Judge Pillman's earlier sentiments to you, I'm also concerned again about line drawing here.

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When you think about the original intent of the document, its oversight,

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doesn't intend to have recommendations.

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It's a learning objective.

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And that's where it starts.

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But then later on, perhaps, you know, legislation or something could come out of it.

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Do we go back to what the document started as and then how it finished in the sense of it's just a final report?

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Don't worry about the legislation later.

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Don't worry about a later Congress which changes hands and there's different committee members now kind of recharacterizing the document.

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I would phrase it a little bit differently, but yes, that is the core of our position that if you look at the intention stated when they started writing the report and then you look at what they did when they finished the final report,

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At that point, they had stated multiple times that this was to be given to the executive branch.

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It was not to be a secret Senate project that nobody saw.

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It was supposed to be declassified.

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They had actually tried to negotiate declassification and that as

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you might tell a first grader, there are no take backs.

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What if the Senate had voted and they voted 100 to zero that we are not going to further publish this report in redacted form?

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All we're going to do is publish this redacted executive summary in full stop.

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At what point?

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They take that vote, and that's what they decide.

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When?

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After it's written?

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Yeah, after it's written.

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So if they were to vote to not disseminate anything else, I would say that that is still subject to the common law right of access, just like a judicial order to seal.

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They've taken the legislative act of saying, by vote, we're not going to

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We're not going to disclose this any further.

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You're saying that that's not protected by a speech or debate clause?

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Correct, because it's not deliberative.

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The vote was ex post facto.

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It was after the fact, and it does not change the fact of whether or not it's privileged.

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They can choose whether or not to claim a privilege, which is what they're doing now, but they cannot change whether or not it was privileged in the first place.

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Do you agree that your action sounds inmandamus, whether you call it under the All Writs Act,

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or 1651 or 1361?

[00:08:21] Speaker 04:
It's definitely akin to mandamus.

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We did not make a mandamus claim for the very reason that mandamus, arguably right now, does not apply to Congress.

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And so- That's on the first page of your complaint.

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Not the first page.

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We did not cite the Mandamus Act, I don't think.

[00:08:38] Speaker 03:
Looking at day seven.

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And you say that we have jurisdiction under 1331 and 1361.

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That was for the jurisdiction.

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Yes.

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And then you cite the All Writs Act in the introductory paragraph.

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Yes, sir.

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So you're seeking some sort of a writ.

[00:08:59] Speaker 04:
Yes, which is the only thing available.

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As the predecessor lawyer stated, this would be an unenforceable right.

[00:09:07] Speaker 03:
Well, I'm trying to get to how this is a clear and indisputable right to relief or clear duty to act when basically to get to the kernel of what you're alleging here is that Congress, the Senate committee,

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select committee published an executive summary, but they had a clear duty to publish a redacted full report and that somehow that's such an abuse and so outside

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the bounds of their authority that that's subject to mandamus.

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I understand.

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How do we get there?

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I understand the question.

[00:09:55] Speaker 04:
I apologize.

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So I think that it's not that they had a duty to publish it.

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I think that they had a duty to provide it upon request.

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Just like FOIA, you don't have an affirmative duty under FOIA to publish every government record, but you do have a duty to publish them when they are requested, if they are agency records and meeting all the other standards of FOIA.

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In this case, if it meets the public record status test and it's not covered by speech or debate, then yes, they have a duty.

[00:10:25] Speaker 03:
I think that you're kind of, that's not really what I'm trying to get at.

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whether somebody requested it or not, the crux of this is that somehow it's some sort of, that the committee had a clear duty not just to disclose upon request a redacted executive summary, it had a clear duty to disclose a redacted full report.

[00:10:58] Speaker 03:
So like,

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Like, I'm just trying to understand the delta between those two things, how that leads to grounds for a mandamus action.

[00:11:12] Speaker 04:
I think that the question is one step removed from that.

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I think that the question, and this was the question that was raised by the appellees, that your argument was not raised below, is that

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know, does the right apply, period.

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And once you decide whether or not speech or debate clause blanketly covers all committee reports or and that no committee reports or this committee report was not a public record, if you get past those, then

[00:11:52] Speaker 03:
then would be the time, honestly, in my opinion, to argue about whether or not, you know, mandamus applied, but until then- That's kind of my point is that even if you can kind of clear the hurdle that speech and debate clause doesn't apply, you still got to clear another jurisdictional hurdle, which is that somehow by not releasing a redacted full report,

[00:12:20] Speaker 03:
Instead of, you know, in addition to releasing a redacted executive summary, this sort of violation of some non-discretionary duty that can result in mandamus jurisdiction.

[00:12:41] Speaker 03:
And I just don't see how you get there.

[00:12:44] Speaker 04:
I would respectfully say that the nondiscretionary duty is the common law access to public records.

[00:12:51] Speaker 06:
On that, I'm sorry, I interrupted you in the middle of your sentence.

[00:12:56] Speaker 06:
The nondiscretionary duty is the common law right of access to records.

[00:13:00] Speaker 06:
Pardon me?

[00:13:01] Speaker 06:
Oh, sorry.

[00:13:02] Speaker 04:
That is the duty that if there is a common law right of access to something, then not disclosing it is, or disclosing it is not a discretionary duty.

[00:13:12] Speaker 06:
So on that, I mean, just as historically that right applied to the executive branch, but it has been supplanted by FOIA, why isn't the same true in the context of this case where the Senate Intelligence Committee rule 9.7 prohibits the disclosure of any confidential report except as specified?

[00:13:35] Speaker 06:
So it's basically creating

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a regime of authorization of disclosure that is more concrete, more specific, and is constitutionally grounded in the rules clause, no more common law right of access.

[00:13:54] Speaker 04:
I had a couple of things and I'm woefully over my time.

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So with your permission, I'm going to answer the question.

[00:14:01] Speaker 04:
The first thing is that FOIA is a statute and that it takes a lot to overrule a common law right.

[00:14:09] Speaker 06:
What's a statute?

[00:14:10] Speaker 04:
FOIA.

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And that a rule by one house of Congress, in our opinion, does not overrule a well-established common law right.

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The second is that even the Senate rule talks about confidential records.

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We would say that even if that applies, this is not a confidential record.

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It was willingly disseminated to numerous recipients outside of Congress.

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that makes it not a confidential record.

[00:14:44] Speaker 03:
Even if it's classified?

[00:14:47] Speaker 04:
The classification is a stickier question, where we are arguing that you don't have to give us the classified parts, but you have to give us the unclassified parts.

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That's where the redactions come in.

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We don't want to fight over whether or not classified information overcomes the common all right.

[00:15:06] Speaker 05:
Are you saying public record or not, though?

[00:15:08] Speaker 04:
We're saying it is a public record.

[00:15:10] Speaker 05:
OK, because?

[00:15:11] Speaker 04:
Because it was generated by a body of the government for dissemination to another branch and to the public.

[00:15:19] Speaker 05:
So not deliberative.

[00:15:20] Speaker 04:
So not deliberative.

[00:15:22] Speaker 04:
Yes, Your Honor.

[00:15:23] Speaker 06:
What's your authority for the notion that a rule is not sufficient to overcome

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the common law right of access.

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I think with respect to the judiciary, the federal rules of criminal procedure have been sufficient.

[00:15:37] Speaker 06:
So do you have any authority for the notion that a duly enacted committee rule would not be sufficient?

[00:15:48] Speaker 04:
Your honor, I don't off the top of my head, but that doesn't mean I haven't found one when I can't think of it because I wasn't expecting that question.

[00:15:56] Speaker 03:
So is the promulgation of Senate Intelligence Rule 9.7 a legislative act?

[00:16:04] Speaker 04:
The promulgation of the rule?

[00:16:06] Speaker 03:
Yeah.

[00:16:06] Speaker 03:
Yes.

[00:16:07] Speaker 03:
So is the committee deciding when something is subject to the rule than a legislative act?

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When a document is subject to the protection of that rule or?

[00:16:24] Speaker 04:
I would say yes, Your Honor.

[00:16:25] Speaker 03:
Then why isn't that the end of your case under the speech or debate clause?

[00:16:29] Speaker 04:
Because the committee decided that it wasn't.

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and later committees tried to change that.

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If the committee decided that rule 9.7 didn't apply, we wouldn't be here.

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That's the whole reason you don't have a redacted version of the report.

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Are you asking me if, are you saying because the committee later said that it didn't, that it, that it applied?

[00:17:03] Speaker 04:
Is that what you're asking about?

[00:17:04] Speaker 04:
Not the first decision?

[00:17:07] Speaker 03:
Well, all I'm saying is that you have requested it.

[00:17:11] Speaker 03:
They haven't given it to you and they are citing rule 9.7 as a reason why you're not getting it.

[00:17:18] Speaker 04:
Okay.

[00:17:19] Speaker 04:
I understand.

[00:17:20] Speaker 04:
So they're citing it.

[00:17:23] Speaker 04:
They were for it before they were against it.

[00:17:25] Speaker 04:
You know, not to put too fine a point on it.

[00:17:27] Speaker 03:
That's fine.

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I change my mind all the time.

[00:17:29] Speaker 03:
The court can change its mind.

[00:17:31] Speaker 03:
There's nothing that says that the Senate can't change its mind.

[00:17:40] Speaker 03:
The question- If it's a legislative act, it's a legislative act.

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They might have taken one earlier, but then they've taken a later one.

[00:17:47] Speaker 03:
But it's still a legislative act.

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It's still a legal question as to whether or not it's privileged.

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If it's not privileged, if a legislative act is taken to declare something fundamentally not privileged that y'all would find is not privileged, but they vote to consider it privileged, do you have review?

[00:18:06] Speaker 04:
I would say yes, because they are violating the law.

[00:18:09] Speaker 04:
If it's not privileged, no amount of legislative acts can render it privileged.

[00:18:17] Speaker 06:
I have just a detailed question.

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You bring claims both against the committee and against Senator Warner, and I take it the Larson Dugan route only applies against an individual in his official capacity.

[00:18:33] Speaker 06:
Is that your understanding?

[00:18:36] Speaker 04:
I would assume so.

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I did not get into the finer detail for that.

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We named both for our belt and suspenders to avoid arguing about whether or not it applied or the proper

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avenue for challenging this.

[00:18:49] Speaker 06:
And you heard the previous argument, there was a question about whether the Larsen Dugan doctrine applies beyond

[00:18:59] Speaker 06:
beyond where there's an officer acting in excess of statutory powers or an officer acting in excess of constitutional authority.

[00:19:07] Speaker 06:
And here, your claim relies on a common law right.

[00:19:13] Speaker 06:
Do you have anything that you would add to what you heard from prior counsel about why you would disagree with the government on the limitations of the common law right of access?

[00:19:24] Speaker 04:
Well, first of all, I think that it would be

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unwise to say that a government official could violate any common law they wanted and still claim sovereign immunity when it's a federal common law.

[00:19:39] Speaker 04:
I think that it is not a question this court can decide, honestly, right now, because it has already held that, albeit indicted, arguably, we would dispute that, but that the common law right of access applies to all three branches of government.

[00:19:59] Speaker 06:
There is a more nuanced view that in, I think it was in maybe in Schilling, the House counsel was arguing that the statement that it applies to the legislative branch read in light of speech or debate, immunity must be limited to Library of Congress, US Capitol Police and the like, but not to the houses.

[00:20:30] Speaker 06:
And so that's a way of explaining the dicta, that it's correct dicta, but it's more limited than one might think.

[00:20:36] Speaker 04:
That's going to be your next case.

[00:20:38] Speaker 04:
That's the Leopold case.

[00:20:39] Speaker 06:
Do you have a response?

[00:20:40] Speaker 06:
Because the next case, he's got that obstacle even on that reading.

[00:20:46] Speaker 06:
But for you, we could honor that dicta and still leave you without a claim.

[00:20:55] Speaker 04:
I think that rather than looking at who it applies to, because as you can see, the government argues that it protects Library of Congress and the capital release and everything else too, I think that it's a functional test.

[00:21:09] Speaker 04:
It's a case-by-case test, where if the entity doing the thing that wants to be writing the report, writing the policy, whatever it is, if doing it in a non-legislative capacity,

[00:21:25] Speaker 04:
than or if doing it in something that would not be privileged.

[00:21:30] Speaker 04:
It sort of conflates all the facts.

[00:21:32] Speaker 04:
It blends them all together.

[00:21:34] Speaker 04:
But it comes down to the fact that a committee writing a report for dissemination to the public is no different than the Capitol Police.

[00:21:42] Speaker 04:
It's no different than the Library of Congress issuing a policy that affects

[00:21:46] Speaker 05:
Well, the district court did say it was not a public record.

[00:21:49] Speaker 05:
You're urging us to say it is.

[00:21:51] Speaker 05:
But then if you do say it is, then you go to your balancing test.

[00:21:54] Speaker 05:
She says national security outweighs the public interest.

[00:21:58] Speaker 04:
Right.

[00:21:59] Speaker 04:
And that was based on the idea that it was classified without any discussion of whether or not everything in it was classified.

[00:22:06] Speaker 04:
She said it was not a public record because of this feature debate argument.

[00:22:11] Speaker 04:
So if you get past that, then all of a sudden, boom, it's a public record.

[00:22:17] Speaker 04:
That was their only stated reason for not being a public record.

[00:22:20] Speaker 05:
Do you have any instances of when any such live reports have ever been disseminated to the public?

[00:22:27] Speaker 04:
The committee reports are disseminated all the time.

[00:22:29] Speaker 05:
But I mean, this is a torture report.

[00:22:32] Speaker 05:
Oh.

[00:22:33] Speaker 04:
Well, I mean, there was the executive security issues.

[00:22:37] Speaker 04:
It is well known.

[00:22:38] Speaker 04:
That's the entire purpose of mandatory declassification review.

[00:22:42] Speaker 04:
The executive order 1356 is about dissemination of things that are deemed not entirely classified or declassifying them.

[00:22:52] Speaker 04:
FOIA, you get reports all the time.

[00:22:54] Speaker 04:
I get reports all the time that have been redacted.

[00:22:57] Speaker 04:
B1 is written next to the redactions.

[00:23:00] Speaker 04:
portion markings are written in the original document saying that a paragraph is you.

[00:23:05] Speaker 03:
Can you cite us to any case where we have held or any court has held that you must declassify and produce a document in response to a request from the public?

[00:23:21] Speaker 03:
You must produce it.

[00:23:22] Speaker 03:
Produce a redacted.

[00:23:23] Speaker 03:
You must declassify and produce a redacted

[00:23:28] Speaker 03:
version of a classified document upon public request?

[00:23:34] Speaker 04:
Well, that's all of FOIA, all the B1 cases that say that.

[00:23:40] Speaker 04:
The entire rule of sacred mobility say that.

[00:23:43] Speaker 04:
You know, national security counselors, my firm versus CIA, there's half a dozen cases.

[00:23:47] Speaker 03:
No, I'm talking about under common law public right of access, not FOIA.

[00:23:51] Speaker 04:
Not for Congress, but for the judiciary, certainly.

[00:23:55] Speaker 04:
I personally have gotten things disseminated that were redacted, that were filed in camera because they were classified.

[00:24:03] Speaker 04:
And then I sued to get the document, just a case, this whole take versus United States in the Federal Claims Court a couple of months ago, the judge ordered something to be released in redacted form, even though the government claimed it was.

[00:24:15] Speaker 04:
What's this site?

[00:24:16] Speaker 04:
I don't know the citations.

[00:24:17] Speaker 04:
It was called Zoltek, Z-O-L-T-E-K.

[00:24:21] Speaker 03:
But what was the basis for your entitlement to access to the document?

[00:24:29] Speaker 04:
The public right of access, common law right of access to judicial records, to public records, which is the same right we're talking about here.

[00:24:40] Speaker 04:
And without any further ado, I would ask that I be given at least a couple of minutes to respond to the arguments they make, but I would like to sit down and take some order.

[00:24:52] Speaker 04:
Thank you.

[00:24:56] Speaker 06:
Good morning, Mr. Caballero.

[00:25:02] Speaker 02:
Good morning.

[00:25:03] Speaker 02:
Your Honor, may I please support Thomas Caballero on behalf of the Senate, at least.

[00:25:08] Speaker 02:
The district court correctly held that the speech or debate clause bars this common law right of access suit against the Senate Committee on Intelligence and its chairman, which seeks the production of the committee's report on the CIA's detention and interrogation program.

[00:25:26] Speaker 02:
The Supreme Court has repeatedly stated

[00:25:29] Speaker 02:
multiple times that committee reports are covered within the legislative sphere and therefore protected by the absolute immunity of the speech or debate clause.

[00:25:39] Speaker 02:
This court itself a few years ago held in a common law right of access suit against the House Intelligence Committee seeking legislative oversight materials was barred by this feature debate clause.

[00:25:52] Speaker 02:
A straightforward application.

[00:25:54] Speaker 05:
Under your description, you would just say any committee report, we're done.

[00:25:59] Speaker 05:
Why do we even have these lawsuits?

[00:26:01] Speaker 05:
Do we have to at least look to the nature of the report?

[00:26:04] Speaker 02:
No, the nature of a committee report is to inform the Senate to allow for its legislative deliberations.

[00:26:11] Speaker 02:
And I want to address the point that was brought up earlier.

[00:26:14] Speaker 02:
Committees do many things that have other effects, because most of what Congress does is in public.

[00:26:22] Speaker 02:
A committee hearing is to gather facts to inform the Senate.

[00:26:26] Speaker 02:
But it's also public, so it informs the public.

[00:26:29] Speaker 02:
It can have many other intents and effects.

[00:26:35] Speaker 02:
The fact they may have these other situations like informing the executive agencies about issues that arose that were looked at by the committee doesn't remove it from the speech or debate privilege that absolute immunity still attaches.

[00:26:52] Speaker 06:
Question about the sequence of decision.

[00:26:55] Speaker 06:
The district court appeared to treat the speech or debate clause as a jurisdictional bar, but as I understand it under our cases, if the claim itself is not predicated on the congressional action, but is seeking documents or information,

[00:27:18] Speaker 06:
then it's in the nature of a privilege, not in the nature of a jurisdictional.

[00:27:25] Speaker 02:
I don't think that's correct here, Your Honor.

[00:27:27] Speaker 02:
This court has said that it's a jurisdictional question.

[00:27:32] Speaker 06:
We're arriving in the context of the suit being predicated on the Legislative Act.

[00:27:37] Speaker 02:
Right, but this is a suit predicated on the Legislative Act where it's come up in an evidentiary situation has been, for instance, in the Brewster case or in the Gravel case where there was a subpoena matter.

[00:27:49] Speaker 02:
And therefore, in a subpoena matter, the question is, does it fall within immunity and act like a privilege?

[00:27:55] Speaker 06:
But this is really, I mean, you can see this as a civil analog, where the subpoena is the claim there.

[00:28:02] Speaker 06:
And here, the claim in the non-criminal context is a common law right of access.

[00:28:06] Speaker 06:
I just wonder whether we have to decide sovereign immunity first before we can decide.

[00:28:12] Speaker 02:
You can decide speech or debate first before sovereign immunity.

[00:28:15] Speaker 02:
You can decide them in any order.

[00:28:16] Speaker 02:
They're both jurisdictional.

[00:28:18] Speaker 02:
This is a suit.

[00:28:19] Speaker 06:
Even if they're not jurisdictional, what if I disagree with you that in this context, speech or debate is jurisdictional?

[00:28:24] Speaker 02:
Threshold issues, I believe you could decide in either order as well.

[00:28:28] Speaker 02:
But again, this circuit has held speech or debate to be jurisdictional.

[00:28:30] Speaker 02:
This is a suit.

[00:28:31] Speaker 06:
What are you referring to?

[00:28:33] Speaker 06:
And it has held that, but in this- It has to look and provide citations later.

[00:28:37] Speaker 06:
If I'm conceding that there are situations in which we held it as jurisdictional, but there are also situations in which we've held it's more akin to a testimonial privilege.

[00:28:44] Speaker 06:
And if the claim here is based on common law, right of access, and the assertion of speech or debate is to say, no, you can't have this, the claim is not

[00:28:59] Speaker 06:
The culpable conduct is the withholding of information.

[00:29:05] Speaker 06:
It's not something that Congress did, and it's not the hearing itself.

[00:29:11] Speaker 02:
I think there's two points with that.

[00:29:13] Speaker 02:
This is a suit against members of Congress.

[00:29:15] Speaker 02:
The courts have said, if you sue a member of Congress and speech or debate applies, it's an absolute jurisdictional immunity.

[00:29:22] Speaker 06:
Where do they say absolute immunity?

[00:29:24] Speaker 06:
Yes, and this court has held that it's jurisdictional, but typically it's absolute immunity, meaning you don't balance, as opposed to absolute meaning it's jurisdictional.

[00:29:34] Speaker 02:
It's both, but I believe the court has held, I would have to go, Your Honor, but this court has held that it's a jurisdictional protection against suit.

[00:29:44] Speaker 02:
And this is a suit.

[00:29:46] Speaker 02:
In Brewster, it was an absolute immunity to apply to a subpoena.

[00:29:50] Speaker 02:
That was also the case in the Minpeco case.

[00:29:52] Speaker 02:
That was also the case in Gravel v. United States.

[00:29:55] Speaker 02:
When it applies to a subpoena, you don't even have the ex ante question of a jurisdictional nature of a suit, where a plaintiff has to demonstrate jurisdiction.

[00:30:05] Speaker 02:
You have a subpoena that is being responded to.

[00:30:08] Speaker 02:
The speech with a clause is not a deliberative privilege.

[00:30:13] Speaker 02:
It's a fundamental separation of powers protection for the legislative branch.

[00:30:18] Speaker 02:
And so it's more than just, for instance, you could never protect speeches on the floor of Congress if it was a privilege because it happened in public.

[00:30:26] Speaker 02:
Why did that not waive the privilege?

[00:30:28] Speaker 02:
It's because it's not a privilege.

[00:30:30] Speaker 02:
It's an immunity from suit.

[00:30:31] Speaker 02:
And what this case is is a suit against committee members of Congress.

[00:30:36] Speaker 06:
But I mean, you're insisting ever more loudly, but not actually explaining why, because it's waivable.

[00:30:45] Speaker 06:
Subject matter jurisdiction typically isn't waivable.

[00:30:49] Speaker 06:
Why is this not more like the subpoena case, where the thing that the

[00:30:57] Speaker 06:
Enforcer of the subpoena wants is information here.

[00:31:02] Speaker 06:
It's a civil claim for common law right of action.

[00:31:05] Speaker 06:
The thing that the person wants is some congressional information.

[00:31:09] Speaker 06:
The structure seems parallel to me, and I'm not sure that you've explained.

[00:31:13] Speaker 02:
I would say two things in response to that.

[00:31:16] Speaker 02:
First is obviously this court has already held that it can affirm a dismissal on jurisdictional grounds on the speech or debate clause.

[00:31:23] Speaker 02:
That was judicial watch fee shift.

[00:31:25] Speaker 02:
So that's already the law of the circuit.

[00:31:27] Speaker 02:
I would say also that I wouldn't say that unlike when you're suing about a legislative act, you're just requesting information.

[00:31:35] Speaker 02:
The information being requested is legislative information.

[00:31:38] Speaker 02:
That's why it falls through.

[00:31:40] Speaker 06:
It may on the merits.

[00:31:42] Speaker 06:
be entitled to speech or debate.

[00:31:43] Speaker 06:
I'm just trying to figure out a question about order of operation and the proper characterization of the effect of your speech or debate.

[00:31:50] Speaker 06:
Understood, and I think- Your argument.

[00:31:52] Speaker 02:
I apologize, Your Honor.

[00:31:54] Speaker 02:
You've been, I'm a little surprised at the number of times that you've- Sorry, I would say, let me refer back just to the precedent and the judicial watch fee shift where this court had a sovereign immunity and a speech or debate

[00:32:07] Speaker 02:
dismissal in front of it, and it found that it could reach speech or debate only, didn't reach sovereign immunity, and affirmed on that ground alone.

[00:32:15] Speaker 06:
It did refer to it as a threshold ground, and it cited Steel Co., which I think, as you also referred to that, that even if it's non-jurisdictional, it could be a threshold ground that one could reach without separately

[00:32:30] Speaker 06:
establishing jurisdiction.

[00:32:31] Speaker 06:
That's how I read that sentence.

[00:32:34] Speaker 06:
And then the next sentence in which it actually refers to it as jurisdictional is really for, as support for the dismissal being non merits and therefore without prejudice.

[00:32:47] Speaker 06:
And again,

[00:32:48] Speaker 06:
It's a little bit of a drive by consideration of whether the speech or debate assertion there is jurisdictional or not, because it's not, neither of those sentences really pins down the question that I'm trying to get your enlighten.

[00:33:05] Speaker 02:
I understand, Your Honor, but I would say that as the Supreme Court has made clear post deal close that

[00:33:11] Speaker 02:
It doesn't have to be a pure jurisdictional question.

[00:33:14] Speaker 02:
You can decide threshold issues in any order.

[00:33:17] Speaker 02:
And I would say therefore, this court, as the court did in the judicial watch fee shift, can decide speech or debate before sovereign immunity.

[00:33:25] Speaker 02:
And either ground would be sufficient to uphold the decision below.

[00:33:30] Speaker 05:
Let's go a little bit to the public record issue about this being deliberative or being a final report.

[00:33:35] Speaker 05:
And at what moment in time do we make that decision?

[00:33:40] Speaker 05:
Because there seems to be some consideration for post hoc rationalizations here that perhaps this could have been legislative or perhaps now we decide that it's not just an oversight report where it's only not providing recommendations, et cetera.

[00:33:58] Speaker 02:
Yes, I guess the question is, I don't believe there's ever been a statement by the committee that this report was anything other than a committee report to the Senate.

[00:34:07] Speaker 02:
The chair did make clear that she wanted it to be understood and used by the executive branch.

[00:34:12] Speaker 02:
The chair doesn't speak for the committee in all purposes.

[00:34:15] Speaker 02:
So I don't know if there's been a- And public peace.

[00:34:18] Speaker 02:
Yes, but I don't know if there's been ever a committee decision.

[00:34:20] Speaker 02:
In fact, there's been a committee decision to only vote and seek for declassification of the executive summary, findings, and conclusions, which were declassified and were made public.

[00:34:32] Speaker 02:
So I don't think there's a question of now the committee's gone back on itself.

[00:34:36] Speaker 02:
I think the committee was always doing a committee report and it never asked the executive branch to undo or declassify the underlying large report it asked for the original.

[00:34:48] Speaker 02:
Therefore I don't think it's a question.

[00:34:50] Speaker 05:
But under your notion again any committee report is not subject to release.

[00:34:56] Speaker 02:
Under the speech or debate clause if it isn't public of course

[00:35:00] Speaker 02:
The large majority, well over, I assume, 95%, 98% of committee reports are public.

[00:35:06] Speaker 02:
So it's only the few reports like this intelligence report that aren't.

[00:35:10] Speaker 02:
And under the speech or debate clause, you couldn't sue a committee to force it to discourage a report that wasn't made public in the normal course of the Senate's business.

[00:35:18] Speaker 02:
I believe the district court held it wasn't a public record because the public record doctrine, as delineated in Washington Legal Foundation, said that it's for

[00:35:30] Speaker 02:
It covers public records where those records get memorialized or...

[00:35:39] Speaker 02:
that essentially memorialized an act or order decision of legal significance.

[00:35:43] Speaker 02:
And the court below said, well, reports to the Senate are reports of a subsidiary body to its parent body for its consideration.

[00:35:51] Speaker 02:
And that wasn't a final act of legal significance, like passing legislation would be based on the report, and therefore didn't qualify under the doctrine for a public record.

[00:36:02] Speaker 02:
It also held that even if it was a public record, the balancing here would clearly cut in the government's secrecy favor, given the national security interests in the document.

[00:36:14] Speaker 02:
And given this circuit court's previous case discussing how the need to protect against national security risk overcomes common law right of access suits.

[00:36:23] Speaker 03:
What if hypothetical Senate committee votes that be in the public interest to disclose a redacted version of this report, but it's a lot of trouble to redact all the classified information.

[00:36:43] Speaker 03:
So we're just not going to do that.

[00:36:46] Speaker 03:
And the administration has said that they don't really want to do that.

[00:36:50] Speaker 03:
So we're just not going to do that.

[00:36:52] Speaker 03:
And then there's a lawsuit brought under this common law right of access.

[00:37:00] Speaker 03:
It says, well, court, that's not.

[00:37:05] Speaker 03:
The relief we want is just the production of this, of a redacted version of this report.

[00:37:14] Speaker 03:
Assuming we were to

[00:37:17] Speaker 03:
Assuming we believe that the common law right of access applies to the Senate, which I know you.

[00:37:22] Speaker 03:
How should we decide that?

[00:37:27] Speaker 02:
Well, I guess it would raise a strong.

[00:37:30] Speaker 02:
Argument that if the Senate committee thought it was a public record.

[00:37:34] Speaker 02:
but just was not choosing to submit for declassification, that it'd be hard to argue it wasn't considered a public record.

[00:37:41] Speaker 02:
But you would still have to apply the doctrine as this court's discussed in Washington Legal about was this truly a document that was created and kept to memorialize some final act, decision, or order of legal significance.

[00:37:56] Speaker 02:
I would also say that

[00:37:58] Speaker 02:
In order to release this document, as the plaintiff noted, it needs to go through a declassification review.

[00:38:05] Speaker 02:
And the executive branch is not a party here to be ordered to undergo declassification review.

[00:38:11] Speaker 02:
And also, there's no precedent that the judicial branch can order a congressional committee to engage such a request to the executive branch in how it handled its documents.

[00:38:20] Speaker 02:
So I think even in that instance, it's not clear that that would answer the question.

[00:38:24] Speaker 05:
But the report said that it was not making any recommendation for legislation.

[00:38:28] Speaker 05:
And then I believe it was in April 2014, the committee voted for declassification and subsequent public release.

[00:38:35] Speaker 02:
So how do we square that?

[00:38:36] Speaker 02:
The committee voted for declassification of the executive summary and finding conclusions, not the whole report.

[00:38:42] Speaker 02:
And committee reports don't have to recommend legislative.

[00:38:46] Speaker 02:
They can report facts to the Senate.

[00:38:48] Speaker 02:
And it's up to the Senate to determine what to do with those facts.

[00:38:52] Speaker 02:
It doesn't have to have legislative recommendations to make it within the legislative sphere.

[00:38:58] Speaker 02:
It can find facts and present those facts to the Senate for its consideration as was done here.

[00:39:07] Speaker 02:
Thank you, Court.

[00:39:16] Speaker 06:
I think we have Mr. Pollum for the United States.

[00:39:20] Speaker 06:
Your rebuttal.

[00:39:22] Speaker 06:
Thank you.

[00:39:28] Speaker 06:
Morning, Mr. Pullman.

[00:39:29] Speaker 06:
Morning.

[00:39:31] Speaker 01:
Move quicker, you might lose your spot.

[00:39:34] Speaker 01:
Too slow.

[00:39:36] Speaker 01:
Good morning, and may it please the court, Thomas Pullman for the United States as amicus curiae.

[00:39:42] Speaker 01:
We outlined in our brief at least three independent reasons why this common law

[00:39:49] Speaker 01:
right of access claim fails.

[00:39:51] Speaker 01:
The first was sovereign immunity.

[00:39:53] Speaker 01:
And the second went to more specific inquiries about this particular document.

[00:39:59] Speaker 01:
I'm happy to answer any questions about sovereign immunity.

[00:40:02] Speaker 01:
I'll be up here next.

[00:40:04] Speaker 01:
I just wanted to make sure that I had a chance to address the specific arguments with respect to classified information.

[00:40:12] Speaker 01:
So happy to take your questions in any order.

[00:40:14] Speaker 06:
On the sovereign immunity point,

[00:40:18] Speaker 06:
I have understood, again, to be analog to ex parte young, that one can bring an officer suit to enforce a legal duty.

[00:40:29] Speaker 06:
And I understand that the Congress and the United States are taking the position that it does not apply to a

[00:40:38] Speaker 06:
common law, right?

[00:40:39] Speaker 06:
So is it your position that if this were a case brought under ex parte young against a similarly situated state legislature, that even though that claim could proceed under a common law right of action, that that cannot be done against the Congress?

[00:40:59] Speaker 01:
So the doctors do have

[00:41:01] Speaker 01:
certainly much in common.

[00:41:02] Speaker 01:
They serve different purposes.

[00:41:06] Speaker 01:
The purpose of an ex parte young suit is to ensure the supremacy of federal law.

[00:41:16] Speaker 01:
When we're looking at Larson Dugan involving the sovereign immunity of the United States, the question is whether the official is acting as the

[00:41:29] Speaker 01:
sovereign exercising federal sovereign authority.

[00:41:33] Speaker 01:
So for ex parte young, we do not ask whether the state official has state authority.

[00:41:44] Speaker 01:
The kind of state law question is put aside by Pennhurst.

[00:41:48] Speaker 01:
All that we ask is whether

[00:41:51] Speaker 01:
there is a violation of federal law and whether prospective relief is sought.

[00:41:58] Speaker 01:
So the natures of the inquiry are very different.

[00:42:01] Speaker 01:
So I think to answer your question directly, if the suit was against a state actor and the argument was that the state actor violated state common law, that wouldn't come into the ex parte young analysis.

[00:42:15] Speaker 01:
The only relevant question is, is there a violation of federal law, which is supreme?

[00:42:21] Speaker 06:
And so they could bring a claim under federal common law right of access.

[00:42:27] Speaker 01:
To my knowledge, a court has not held that the federal common law right of access applies to state actors.

[00:42:37] Speaker 06:
Well, I'm just following your logic about the supremacy of federal law and that that's what ex parte young is about.

[00:42:43] Speaker 06:
And I mean, is ex parte young not also about ensuring the enforceability

[00:42:50] Speaker 06:
federal law, not just its supremacy, but its enforceability.

[00:42:54] Speaker 06:
It's not just a shield, it's a sword.

[00:42:57] Speaker 01:
Yes, and not in this case.

[00:43:00] Speaker 01:
In the next case, the plaintiff cited two courts of appeals that have held that at least some aspects of federal common law are supreme for the ex parte young analysis.

[00:43:13] Speaker 01:
We know that the common law can't come into play in the Larson-Dugas Dugan analysis because the Supreme Court said so.

[00:43:22] Speaker 01:
I think that's the square holding of Larson itself, which expressly rejected a third category based on the general law and said quite clearly that as long as an officer's

[00:43:35] Speaker 01:
actions don't conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they violate the general law.

[00:43:47] Speaker 01:
So I think for those reasons, we kind of have that question answered here.

[00:43:52] Speaker 01:
And to bring up a related question, again, before I get to the

[00:43:58] Speaker 01:
issues of the classified information.

[00:44:00] Speaker 01:
I believe Judge Pillard, you had asked a question, why would Larson draw this line?

[00:44:08] Speaker 01:
Why would it say statutory and constitutional claims and not common law claims?

[00:44:15] Speaker 01:
And I think the answer to that is that under Larson, the question is whether the officer acts for the sovereign so that his actions can be imputed to

[00:44:29] Speaker 01:
to the sovereign.

[00:44:30] Speaker 01:
When we're trying to figure out when the official acts as the sovereign, we're looking at the officer's kind of authority and duties.

[00:44:37] Speaker 01:
Those are created by statute.

[00:44:40] Speaker 01:
That's how the federal government creates offices and gives duties and authorities to those offices.

[00:44:47] Speaker 06:
A strange analysis because

[00:44:51] Speaker 06:
If the, why would that imply that the claim has to be based on statute or the constitution?

[00:45:01] Speaker 06:
Because just because you're bringing a common law claim doesn't mean that the officer is acting only under common law authority.

[00:45:10] Speaker 01:
No, but the claim has to be that the officer is not acting on behalf of the sovereign.

[00:45:17] Speaker 01:
And the common law claim doesn't get at that question.

[00:45:23] Speaker 01:
The Supreme Court at Larson said, because we're asking this question, the plaintiff needs to clearly identify in their complaint the specific statute they're relying on.

[00:45:37] Speaker 01:
And that's to enable the court to determine whether the officer was acting outside of properly delegated authority.

[00:45:44] Speaker 01:
So just identifying a common law cause of action doesn't get at that.

[00:45:49] Speaker 03:
It seems like that kind of begs the question.

[00:45:51] Speaker 03:
Maybe I'm asking the same thing that Judge Pillard just did.

[00:45:59] Speaker 03:
But it seems like the premise of your question is that the sovereign

[00:46:06] Speaker 03:
is not bound by common law.

[00:46:08] Speaker 03:
I mean, if the sovereign is bound by common law, then the official operating on behalf of the sovereign is also bound by common law, the same as they would be bound by statute or bound by provision of the Constitution.

[00:46:25] Speaker 03:
Am I missing something?

[00:46:27] Speaker 01:
No, I just think the Supreme Court directly answered that question when it said, if the actions of an officer do not conflict with the terms of his valid statutory authority, then they are actions of the sovereign, whether or not they are tortious under general law.

[00:46:43] Speaker 01:
And the court elsewhere said, we're asking whether the officer's actions are so illegal that they can be enjoined without

[00:46:54] Speaker 01:
implicating sovereign immunity.

[00:46:56] Speaker 01:
And it specifically said that, you know, these actions are so illegal only if they're not within the officer statutory powers or their constitutionally void.

[00:47:07] Speaker 03:
So just to follow up, I think in that same passage, the court says that there might not be immunity from damages, right, for a tortious act.

[00:47:20] Speaker 03:
But that's different than

[00:47:22] Speaker 03:
essentially kind of a mandamus type action where you're trying to force an official to act.

[00:47:30] Speaker 03:
So the court seemed to kind of create a distinction between an action like this, which is in the nature of mandamus or injunctive relief, compelling an official to do or not do something versus an action for damages.

[00:47:49] Speaker 01:
Well, I understood the,

[00:47:51] Speaker 01:
The relevance there to be kind of you're asking whether the injunction against the officer would kind of run against the sovereign or just the officer himself because he was not acting he was actions could not be imputed to.

[00:48:09] Speaker 01:
the sovereign and when actions can be imputed to the sovereign, then the injunctive relief is barred just the same as damages, which is a separate question from whether there could be a court suit against the officer in his personal capacity.

[00:48:26] Speaker 01:
But when we're dealing with official capacity suits and the officer, his actions are imputed to the sovereign, then the relief runs against the sovereign and is barred.

[00:48:40] Speaker 01:
And I would like to turn to some of the arguments specifically about classified information here.

[00:48:50] Speaker 01:
First, on the public records inquiry, this court has recognized that there is just no right of access to information that's kept secret for important policy reasons.

[00:49:02] Speaker 01:
We've cited a long tradition of recognizing the important policy reasons that call for the protection of national security information.

[00:49:11] Speaker 01:
I don't think there's any meaningful sense of the word public in which classified documents could be considered public records.

[00:49:19] Speaker 01:
The executive branch has constitutional authority not only to control access, to kind of designate this information and control access, but decide

[00:49:28] Speaker 01:
who who has access to it and providing but his claim is we don't want any of the classified information we just want a redacted version of the full report so just as an initial matter that's not what was requested in his complaint he asked for the report because it is a public record

[00:49:51] Speaker 01:
and said that there was a public interest in disclosure of the full report.

[00:49:56] Speaker 01:
And he asked for the report to be provided to him.

[00:50:00] Speaker 03:
Just as a way, is that the posture that the district court decided case or did the plaintiff ever refine?

[00:50:07] Speaker 03:
It seems like one appeal plaintiff is refined as argument to say, no, we really only asking for it to go through the declassification process.

[00:50:17] Speaker 03:
At least that's what I took to be the nature of the argument at this stage.

[00:50:23] Speaker 01:
Yeah.

[00:50:23] Speaker 01:
So even if that's true, I'm not aware of any authority that, um, uh,

[00:50:30] Speaker 01:
writing that courts have kind of a common law authority to require this.

[00:50:35] Speaker 01:
We can look at the court's most recent case involving a common law claim for a classified document.

[00:50:43] Speaker 01:
And there it was actually a judicial record.

[00:50:45] Speaker 01:
And the court said simply in one sentence that the law of this circuit is that

[00:50:52] Speaker 01:
the need to protect classified information outweighs any public interest.

[00:50:57] Speaker 01:
The court did not say, well, can we break, there was a video, can we break this video down, see if there are any unclassified frames of the video and release that.

[00:51:09] Speaker 01:
The court treated the record as a whole, recognized that it was classified and said, that's the end of the story.

[00:51:16] Speaker 01:
Just so that I'm clear.

[00:51:18] Speaker 05:
What case are you citing?

[00:51:19] Speaker 01:
I'm sorry, that's DIAB.

[00:51:21] Speaker 03:
But D H I A B. Just so I'm clear, is there a waiver or put your issue here in that?

[00:51:33] Speaker 03:
That plaintiff never said in the district court.

[00:51:37] Speaker 03:
All we want is redacted version.

[00:51:42] Speaker 01:
So I'm not sufficiently familiar with all of the.

[00:51:46] Speaker 01:
That's fine documents.

[00:51:50] Speaker 01:
I don't know that that's not the way the district court, I didn't read the district court's opinion to treat it that way.

[00:51:58] Speaker 01:
District court I think similarly understood that Mr. Musgrave was looking for the whole document.

[00:52:03] Speaker 01:
And just on this notion of segregability that Musgrave relies on, I mean that is a

[00:52:13] Speaker 01:
concept under FOIA that's required by statute.

[00:52:17] Speaker 01:
So what I think, in effect, Mr. Musgrave is asking is for the court to import the FOIA concepts he likes, like segregability, ignore the ones he doesn't, like the exclusion of Congress from the scope of FOIA, and kind of select this mix that the court can't impose through its limited common lawmaking powers.

[00:52:37] Speaker 01:
That sounds more like a legislative authority than a judicial authority.

[00:52:42] Speaker 01:
And I don't know of any cases that have said that a court can require

[00:52:50] Speaker 01:
the executive branch to undertake this review, especially when the executive branch isn't even a party to the litigation.

[00:52:57] Speaker 01:
I mean, because FOIA takes care of this for executive branch documents, this is only going to come up when someone requests classified information from the legislative branch.

[00:53:10] Speaker 01:
So where we're going to end up is a court saying,

[00:53:14] Speaker 01:
Well, legislative branch, you have to disclose this.

[00:53:17] Speaker 01:
You have to request declassification.

[00:53:20] Speaker 01:
And executive branch, you have to participate.

[00:53:22] Speaker 01:
And that seems like a fairly aggressive posture to take in this position.

[00:53:29] Speaker 01:
And one last point, if I could.

[00:53:33] Speaker 01:
is just a point to the relevance of this court's ACLU versus CIA case, which involved a FOIA request for this very same document.

[00:53:42] Speaker 01:
And this court held that the committee had clearly expressed its intent to control the document and make decisions about public release, and that overriding that intent would raise separation of powers concerns.

[00:53:57] Speaker 01:
And I think if those are sufficient to control the outcome in a FOIA case, they apply necessarily in a heightened manner when we're relying on common lawmaking.

[00:54:06] Speaker 06:
I hate to keep you up longer, but just circling back to some of the questions about the structure of the inquiry and the jurisdictional questions, I understand that you

[00:54:19] Speaker 06:
do not think it applies.

[00:54:21] Speaker 06:
But you also argue, I think, in your brief that if the Larson Dugan exception is figured by the common law right of access, then the question of jurisdiction merges with the question on the merits.

[00:54:37] Speaker 06:
And maybe it's just not parallel.

[00:54:42] Speaker 06:
I've been thinking about Larson Dugan as the less familiar cousin of the ex parte young

[00:54:48] Speaker 06:
and in the Verizon case the Supreme Court said we don't merge with the merits the question whether there's jurisdiction under ex parte young and I wonder whether you know what you think about that the precedents that say you have to look at the merits to figure out whether the Larson Duke and exception to sovereign immunity is

[00:55:14] Speaker 06:
available.

[00:55:15] Speaker 01:
Right.

[00:55:15] Speaker 01:
So we took that aspect of Washington Legal Foundation as, I mean, that is the precedent set in that case.

[00:55:26] Speaker 01:
We accepted that and argued within that.

[00:55:30] Speaker 01:
We haven't made any kind of other argument here.

[00:55:34] Speaker 01:
I kind of don't want to get ahead of what the SG might decide if this were a

[00:55:41] Speaker 01:
kind of free to go wherever we could go.

[00:55:44] Speaker 01:
But I will note that Larson itself in footnote 10 said, jurisdiction in this type of case does rest on the decision on the merits because the court was asking whether it was just an error of law that was claimed or outside the scope of authority.

[00:56:05] Speaker 01:
And for that reason, as I mentioned before, that's why it's incumbent on the plaintiff to clearly identify the statute on which the claim is based.

[00:56:15] Speaker 01:
So I do think, at least if we're looking at Larson, there is some reason to believe that Washington Legal Foundation might have been correct in that regard.

[00:56:24] Speaker 01:
And it's similar to how this court approaches mandamus, where the jurisdiction and merits merge.

[00:56:32] Speaker 01:
not totally dissimilar ideas.

[00:56:35] Speaker 01:
So that that may provide something to.

[00:56:40] Speaker 03:
Well, that's I guess why I've been kind of asking all these questions about what claim is this?

[00:56:46] Speaker 03:
I think here, Mr Musgrave explicitly involved 1361.

[00:56:51] Speaker 03:
Seems to be a mandamus claim.

[00:56:57] Speaker 03:
And as you say, they're kind of

[00:57:00] Speaker 03:
whether we have managed a mis-jurisdiction merges with the merits to the extent that we look at, whether there's, you know, clear right to relief and their duty to act and that sort of thing.

[00:57:15] Speaker 03:
And so, so given that, why isn't that really the kind of

[00:57:27] Speaker 03:
cleanest and easiest way to decide this case.

[00:57:31] Speaker 01:
I think that's certainly an available option.

[00:57:37] Speaker 01:
We as I in one of the briefs, I apologize which one we have not argued that mandamus relief is not available against

[00:57:50] Speaker 01:
The legislative branch.

[00:57:52] Speaker 01:
I know there is case law to that that effect out there.

[00:57:54] Speaker 01:
So that's just not an argument we raised.

[00:57:58] Speaker 03:
But even if it is, if he doesn't meet the mandamus standard, we don't have jurisdiction.

[00:58:02] Speaker 01:
That's right.

[00:58:02] Speaker 01:
So that's just another jurisdictional ground.

[00:58:05] Speaker 01:
I think all of this, because of the merging and the presence of mandamus, basically all of this is jurisdictional.

[00:58:11] Speaker 01:
And so the court has several different off ramps.

[00:58:15] Speaker 01:
It could go through Larsson Dugan.

[00:58:17] Speaker 01:
It can go through the scope of the common law, the particular balancing, the mandamus.

[00:58:22] Speaker 01:
I think all of these are

[00:58:24] Speaker 01:
generally available.

[00:58:26] Speaker 06:
And is it your view that if 1361 were unavailable, as the circuits to have addressed it have held again in an action against legislative actors, then we still in

[00:58:45] Speaker 06:
recognizing a jurisdiction under 1331, it would still be in the nature of an affirmative injunctive request that would be subject to those same inquiries that Judge Wilkins mentions, the Clear Right to Relief Act, no adequate alternative.

[00:59:03] Speaker 01:
I think that's right.

[00:59:03] Speaker 01:
This Court has recognized in the past that when you're seeking this type of injunction, it is akin to mandamus, and so the standards should be similar.

[00:59:10] Speaker 06:
And you're thinking of

[00:59:14] Speaker 01:
Oh, goodness.

[00:59:15] Speaker 01:
I think there's a footnote in Swann.

[00:59:26] Speaker 06:
Yeah.

[00:59:27] Speaker 01:
I believe.

[00:59:30] Speaker 01:
I didn't mean to put it on the spot.

[00:59:31] Speaker 01:
Yeah, I think it's in Swann, there's a footnote that says, we note that a request for an injunction based on general federal question statute is essentially a request for writ of mandamus.

[00:59:45] Speaker 01:
So same standard there.

[00:59:46] Speaker 06:
You've been very helpful.

[00:59:47] Speaker 06:
Thank you.

[00:59:48] Speaker 06:
Thank you very much.

[00:59:55] Speaker 06:
Now we'll hear from Mr. McLean on his rebuttal.

[00:59:59] Speaker 04:
All right.

[01:00:01] Speaker 04:
So I'm just going to respond to some of the things that the housing council have made.

[01:00:07] Speaker 04:
I won't say one thing in clarification when I mentioned this old tech case that was not classified information, but it was information that the government asserted.

[01:00:17] Speaker 04:
was protected for national security reasons.

[01:00:21] Speaker 04:
That was case number 96166 in the federal claims, docket 573.

[01:00:26] Speaker 04:
As far as a classified information case, there was a declaration and a motion that were classified and were ordered to be released on the public record by Judge Howell in national security counselors versus CIA.

[01:00:41] Speaker 04:
Case number 11443 in motion by a minute order on February 15th, 2013.

[01:00:48] Speaker 04:
That was one of my cases.

[01:00:49] Speaker 04:
And in fact, it was my declaration that they she ordered to be released.

[01:00:55] Speaker 04:
I'm just going to say to one of the most recent points that the government council made, that at the district level, we definitely mentioned segregated ability.

[01:01:06] Speaker 04:
We definitely mentioned redactions.

[01:01:08] Speaker 04:
And I'll quote from our reply for partial summary judgment, that Musgrave does not maintain that the secrecy of national security information, in other words, the classification of information, is outweighed by

[01:01:22] Speaker 04:
a countervailing public interest, he simply argues that there is at least 500 pages worth of information in the report, which is not classified, if not much more.

[01:01:30] Speaker 04:
And then we'll go on to talk about how no circuit has held that the presence of classified information in a document means that the entire document can be withheld going back to 1977 in Weishman versus CIA.

[01:01:45] Speaker 04:
To one of Judge Wilkins's questions, I think the best analog here to his

[01:01:54] Speaker 04:
something to be not released is the hypo that what happens if there is a published report and it is printed by the GPO and the GPO runs out and Congress then votes not to release it anymore can you sue for that for some copy of that report saying that it was intended to be disseminated and it was disseminated we would say yes and so that is a variation of why

[01:02:20] Speaker 04:
Yes, what?

[01:02:21] Speaker 04:
Yes, but why?

[01:02:23] Speaker 04:
Because it was not the privilege was deemed not to apply.

[01:02:28] Speaker 04:
It was ordered to be released.

[01:02:29] Speaker 04:
They can't take it back later when it politically changes hands.

[01:02:35] Speaker 03:
And as far as the what's the precedent for the no no take back rule?

[01:02:42] Speaker 04:
This is a case to personal questions first I've found.

[01:02:45] Speaker 04:
So the precedent is.

[01:02:48] Speaker 04:
Playground rules.

[01:02:50] Speaker 04:
I mean, it's one of those things that it's logic.

[01:02:52] Speaker 04:
It's the way that privilege works.

[01:02:55] Speaker 04:
If a client asserts privilege or does not, if a client does not waive a privilege in an attorney-client matter, they can't later claim it's privileged.

[01:03:04] Speaker 04:
Privilege is or it isn't.

[01:03:06] Speaker 04:
When you decide that something is not privileged, you can't change your mind.

[01:03:10] Speaker 03:
and that's usually the case after it's cats out of the bag and it's been disclosed but I don't know that I've seen a decision that said that that if there's a privilege review and something is deemed not privilege and and before the documents actually disclosed a

[01:03:32] Speaker 03:
you know, do another review when they claim the document is privileged, well, they can't do that because they can't change their mind.

[01:03:39] Speaker 04:
We would argue that it was disclosed when it was sent to all the executive branch agencies with no restrictions on its dissemination.

[01:03:46] Speaker 05:
And- Privilege law, you have rule 502, which kind of allows a clawback provision that if it's inadvertently disclosed, you claw it back.

[01:03:58] Speaker 04:
This wasn't inadvertently disclosed.

[01:04:00] Speaker 04:
There are paybacks.

[01:04:02] Speaker 04:
if it was inadvertent.

[01:04:04] Speaker 04:
I'll mention that kindergarten does not directly apply to federal law.

[01:04:08] Speaker 04:
But yeah, I'll grant that.

[01:04:10] Speaker 04:
And in closing, I would simply say that the Supreme Court has held twice in McMillan and Hutchinson.

[01:04:18] Speaker 04:
that this is the way things should be.

[01:04:21] Speaker 04:
In McMillan, doubtless, also a published report made without losing speech or debate cloth protection be distributed to and used for legislative purposes by members of Congress, congressional committees, and institutional and individual legislative functionaries, not the executive branch.

[01:04:37] Speaker 04:
And in Hutchinson, the transmittal of such information by individual members in order to inform the public or other members is not a part of the legislative function or the deliberations that make up the legislative process.

[01:04:49] Speaker 04:
Put those two together, and you have that dissemination outside of Congress and the stated desire to get it declassified for public release means it's not privileged.

[01:05:00] Speaker 04:
And that's where the question ends, as far as we're concerned.

[01:05:04] Speaker 04:
Thank you very much.

[01:05:05] Speaker 04:
And if you have no further questions,

[01:05:07] Speaker 06:
Thank you, the case is submitted.