Transcripts For CSPAN DC Circuit Oral Argument On Don McGahn Congressional Testimony 20240712

And 15 minutes. All persons having business before the court of appeals issued by the columbia circuit are to give their attention for the court is now sitting. God save the United States. Case number 195331. Committee on the house of representatives. Versus donald mcgann. [indiscernible] good morning. Good morning. May it please the court. The House Judiciary Committee seeks to serve an implied cause of action to enforce the subpoena to compel mr. Mcgahn to testify regarding his duties as white House Counsel over the objection of the president of the United States. Regarding his duties as white House Counsel over the objection of the president of the United States. Dispute over institutional prerogative bears no resemblance to the cases are controversies that could be heard under article three. Moreover, while congress has purported to authorize senate in fact, for that reason. Is there a more fundamental question now . The article three question . Article three standing and federal matter jurisdictions are very important and both thresholds of grounds that have to be cited before. As between two of them there is not an order of priority. Principles of constitutional avoidance would suggest that if the court resolved questions on statutory ground it could differ the sears constitutional question. Let me ask you about the constitutional question. View, when may congress or chamber of congress assert in institutional injury . Can. Dont think they ever but certainly not in the case where its an injury against the executive branch. We think it reaffirms the proposition that a dispute or injury in article three controversy, whether its a type of dispute being resolved in federal court. But the Supreme Court said there has such a thing as institutional injury. The Arizona State legislator. Only for state legislators. Why would that make a difference . Because of the separation of powers. There are serious separation of powers having federal court resolve a dispute. This is laid out in great detail. They specify that over history there have been countless disputes between congress and the president. And in none of those disputes have they been resolved through interbranch litigation over injuries of officials of power. Not suing. In theree pages discussion. Only a 12 page opinion. After all of that it culminates in the conclusion. The conclusion is that while it not be while it might not be its obviously not the regime. Here we have a straightforward executive privilege. Doesnt it invite us to resolve this dispute . I dont think so. It is not sufficient that the legal issue be the sort of issue courts can resolve. Constitutionality was a sort of question for the Supreme Court to resolve it the very next term and resolve it in favor of the unconstitutionality. What it tells you is that it is not sufficient that the expression be subject to this. The question is whether the plaintiff is the proper party to bring that suit. , thehat is described conclusion of it was, why you could have schemes that resolved that sort of intervention disputes. It is not what we traditionally did under article three. Article three courts exist to resolve protect the rights of individual citizens not to gauge in supervision. Is venturedmmittee into legislative standing . This court does not address article three standing. So it is a driveby. We do think it was not in that case. The different case built in this posture. At t commenced and is sued by the United States to sue a private company. Controversy to enforce its sovereign providence represented by the executive branch. But the reality of the case was that the branch was disputing over information. I dont think it is solely the case that the house intervened to defend the subpoena. But that does not change the fact that the major dispute in this report was the United States the nature of the analysis was about the interbranch dispute over the information. Thats what we have. That the merits question. In terms of the standing or the case of controversy focusing on who the defendant was, which is whats critical for standing, is pursued by the United States and told the private company not to disclose the information. To the extent you are distinguishing that case on factual and contextual grounds, they talk about having the proper party. Here we have a Different Party than the nature of the committee then we do before the court a reins. The committee has been authorized by the full house. Doesnt that change your analysis necessarily . You are exactly right that neither at t nor is on this. Then the question becomes, what about these cases . At t has no reasoning. They have three pages of reasoning about why interbranch disputes they are not talking about individual congressmen. They say suits between one or both houses of congress or the president. They talk about how the president never sued over the act. How Congress Never sued. So while it is certainly true that the facts involved this and goes broader, that is essentially what my friends on the committee are armed with. The absolute rule really does not matter who the plaintiff is. The reasoning is the interbranch disputes. Disputes between one Political Branch and a poem and another Political Branch over their institutional province without a private party to be seen. Theo go back to what framers had in mind and having three branches of government. The hypothetical obviously is , had one branch, arguably instability to carry out a constitutional duty. There is no remedy available under our constitutional system other than at the ballot box. I will say two things about that. Deemphasizes cease interbranch disputes thats not the same as saying its an absolute are to any such judicial remedy. I do think the reason they say that is an absolute bar is that the federal courts exist to resolve disputes to inserting the rights of private parties. So deal with my hypothetical. The second part of what i would say is that this court versus clinton addressed this question. Its not that there are no remedies, there are political remedies. When you have a dispute between the Political Branches, that is resolved through political tools. To house has powerful tools block appropriations, to block legislation. If the senate agrees with bows they can block nominations. They can pass legislation. The senate and the house, and make it make it a grounds for impeachment. Been at the grounds of clinton make it i will not get into any given fact pattern. This is one of the tools that congress had. Congress had powerful, powerful tools. That is what the court says. Congress is the more powerful branch. Done, insteadever of using its political tools and power of the person and islator at the first case we have of 1974. Thats right with one important exception. 1928, the read decision in the Supreme Court the committee tried to sue to enforce a subpoena. And it did so pursuant of the resolution that said they cannot only issue the subpoena, but take any steps necessary. The Supreme Court held that was not authorization to sue. The reason the Supreme Court gave for why it was not is that there was a divergence between the power to issue it and the power to enforce the subpoena. That is why they do not have the sort of injury. It goes to the broader separation of policy. The absolute testimonial unity. The Supreme Court has rejected the president s claim. How is this case different from what the court has rejected . Im not sure of your references. It involved documents and congressional subpoena and traditional subpoena. Aboutappy to talk more the several other threshold jurisdictional points. I just want to ask you on standing. Your position is no one has standing . The narrow version is to say in the minimum of not wanting in interbranch dispute. In in interbranch dispute no one has standard. Standing. No one has standing to enforce the subpoena and this court . I think as a matter of separation of powers, thats true for two very important reasons. One, its a shifting of powers and number two, probably more importantly, it is radical andge to this courts role one that serves as a real danger to the court. They make clear that the power to File Lawsuits on behalf of the united date and public rights is invested in the executive, not the legislator. They talk about this and they explain that the federal commission and all were doing is painting information. That might have been ok. But then what it says is the sec has more powers. The sec has a power to bring lawsuits. Court why the supreme struck down the original sec. But on the flipside, congress has never had the authority the File Lawsuits and that is the discussion we had. Standing,oint on which is the reports. This is the report that was made very eloquently. The reason of this interbranch dispute whether involved in private rights is because federal courts historically instead havets to the resolving of purely political disputes between Political Branches. Its for undermining Public Confidence of the court. A better case of to explain that the method of this case. The House Committee as cited our. Egal position by the president has engaged in affection of justice and should be impeached. Justice andon of should be impeached. You can be assured that this will be waived on the floor of the senate. Of either the president being guilty or innocent. Problem thatly the the majority is worried about. In anythat can happen litigation. You know that as well as i. We pointed out exactly that point. It is certainly true that the federal courts will sometimes have to deal with deeply controversial issues and political issues. But at least when it does it in the context of a private persons rights, when its protecting private persons from other private parties, that is the traditional reports in the public understands. You have congress on the one side and executive on the one side, and judiciary in the middle picking and choosing who the winners are, that is not the judicial role of the federal traditional role of the federal courts. Wonderingy they are who will use the political front. Who knows what happens when the Supreme Court rules . What is traditional is not necessarily the definition of the total authority. The concrete entry has to be the court. A lengthy discussion of these types of disputes but we have made it clear that what was made in context and what was at issue of the holding of the court was. The rationale, the reasoning and the expectation may go beyond that, as we all know. Thats why i started out with my hypothetical and the response that makes it perfectly clear. There are no circumstances and the department of justice for win this type of matter, and forcing a subpoena to carry out a constitutional duty, its probably in the court. There is a long line of cases berecognizing why a walmart judged by the precise facts of Supreme Court opinions, but carefully considered language in the Supreme Court will be treated i understand. But three pages cannot possibly big characterize be characterized as this. T is essential the idea that this court would say none of that matters and it stands for this narrow factor. They have no affirmative bassist outstanding must to see the rationale is cabined through individual members. It affects our prior approach to legislative standing at our creative approach. Does not ever affected this precise issue. That the reasoning for three pages of that opinion that are not talking about individual legislators. Can i ask you about the marriott now . About the merits now . You have been writing this was pretty geary danley. History pretty galleon only. You have been riding this pretty galliantly. Testimony is in 1944. That is more than 150 years after the founding. Why should we elevate this late stage innovation to the point of constitutional law . History may help you on your article three standing. If we disagree with you on that, history is against your testimony. That it might be that theyll have any historical as opposedgressindividuals e to choosing to testify. Has there ever been an instance of such broadscale of a congressional requests for information in the history of the republic . Is it anything like this . I think that that question, with all due respect, underscores while there is why there is a real danger with this Court Getting into the merit . A big dispute about whether this is a widescale massive resistance are weather widescale massive resistance weight. Instruction has been given to the president of the United States not to cooperate. Has that ever happened before . Not directed to one individual who occupies a particular decision. I think never before as congress engages in this i dont want to get into that because that is exactly the political dispute that this court should not being gauged in. This court should not be refereeing was right or wrong about whether the president is acting unusually or of congress is acting unusually. That is why the court should stay out of the matter. If that is the way you want to characterize it you should look at what my hypothetical tried to point out. Legal questions come before that may have collateral, political consequences were members on both sides use the courts decision to support their positions. That is a different issue. This court does not have to decide the merit of the impeachment inquiry in order to decide whether or not it has a proper party before it, and that party has all the other jurisdictional requirements. In terms of the procedural matter of enforcing the sabrina. Subpoena. Not only testimony, but documents. There are no documents for this case. Its only testimony. The parts that resolved the dispute over documents is all about testimony. Saw the documents including the grand jury transcripts . In this case, the mcgahn case. I dont want to bring in matters outside the record, but we all know there are materials that have not been produced. I am not disputing that. So this is still an issue. Perhaps, just not in this case. Know, in this case. The subpoena in this case is about testimony of mr. Mcgahn. I think, at a minimum, the standing questions are a series of questions given the three pages of rains that support us. Question . Oid that i think there is an easy way to do that because congress itself has addressed circumstances were Congressional Committees can enforce subpoenas. I do not think you can read that statute and allowing the house to circumvented. I am not quite sure which of two different points they are making. Suggest they seem to that 1365 does not displace 1361 1331. That is a complete nonstarter. The way 1365 is set up, in order to invoke it the senate have to get full resolution from the senate through a committee process. Got 1331, there was a question about the amount of controversy, the senate was unsure, so they went ahead and did this. Because there are careful limits to the statutes. There are limits about when the senate is authorized to sue, limits about where they consume, its the remedies that can be offered. If you take those positions they can and all of that. The house could. There are two steps. You take the senate on their view today now that there is no controversy requirement that does my invoke 1331, not through the committee process. See criminal content and the sale. All those limitations are very nice. That is just not implausible reading of the statute. We do not have a chance to put this into the brief. This is the bipartisan statement of the sponsors to 1365. The citation is 142 congressional record 19 412 and four wintry. So this is senator specter. It is talking about 1365. The intent is to make it clear that traditional enforcement is available when a person is asserting a privilege personal to him or her, but not when the onlys asserting available to the governmental branch. The purpose is to keep disputes between the legislative branches out of the courtroom. Section 1365 generally authorizes general enforcement of the subpoena, except when as been issued to an executive branch official acting in his or her capacity, an exception that keeps disputes out of the courtroom. There is no doubt that congress did not want the senate to be able to and limitations in that statute and route under 1331. I think they largely agree. What they go back on is the point that this is about the senate, not the house. Just holds less water. The notion that when Congress Gave the senate limited authority to sue and gave the house no authority to sue, that means the house has more authority and turns the statute on its head. Is, in thison of it court, in 1981, the permanent is for seminar briefs. 1978that prior to 19 congress had only two means to enforce subpoenas. Content accept criminal or its own civil content. Thats exactly what the Senate Report says. We look at page 16 of that Senate Report when it talks about the need for the statute. It said the exact same thing. Somehow working in the background unbeknownst to everyone was the rank of jurisdiction and call to action under 1331. At a minimum its unclear. Are we looking at legislative history. A new day has arrived. Scarf off the suits and their suggestion that there was another mythical purpose. But at a minimum there is ambiguity here. There is a serious constitutional question about what this court should do as a matter of constitutional avoidance and restraint and they dont have authority to sue. The results is that if Congress Wants to sue, congress can pass the statute. If there is a party who cant complain to pass legislation is the House Judiciary Committee. If they have Political Support to authorize the lawsuit, they can pass the statute. Right, yourly honor. The Supreme Court has made clear that it is precisely to prevent the one House Congress from acting rationally. That remedies require coopera. The whole speech you are presenting to the court is this is total noncooperation. My court is that there is serious article threethe whole e questions about whether the house should be able to sue. And before this Court Resolves them before the House Committee can force the court to resolve this, at a minimum, congress at a whole should want this court to resolve. There is a reason for that. With 1365 because the two shall did not have the exception for government it is whether or not they are suing the intervention or if they think they have standing. We think that all have article three standing if they are suing the executive branch in the dispute. The point i will make is that the reason why this matters 1365 i am trying to understand your reading of 1365. This is a hypothetical question, but if 1365 did not have the exception for governmental privileges it would be more unconstitutional. More unconstitutional than what . The way it is rain now, which only allows them to sue private parties. So you think its unconstitutional as it is . Yes. The only time was not just to say its not just a matter of there areestraint, good reasons why Congress Might not want to allow this. It ties into the article three. Right now, disputes over information are resolved with the political process. And all of and forth that is resolved between the branches. That will all vanish, vanish if they have authority to file suit. Resolutions will bind for all time. 1365 has been around for quite a wild. I have some personal quite a while. I have personal experience with the statute. A lot has been made over the privilege. No, that is the point. 1365 does not have ability to sue, that is why they continue to be resolved. Hypotheticaly am i take that language out and it makes it worse. This is not just some hypothetical. The day after this District Court ruled they filed another lawsuit. If this Court Authorizes this, it will never end. There will be case after case after case. Courtst be good for the and it frankly wont be good for either of the Political Branches because sometimes the house will lose some of those cases. And then they will have less power than they had before. We want to keep the disputes out of the courts and keep them within the Political Branches. There may be another motivation to that view. But i wont go there. I will note that it was bipartisan. Individual in the senates power keeps the court out. You are familiar with that . That is the point. But the motivation may be affected. Their political actors. To keep china push you to the constitutional question before us and you want to come back to this. This is speaking out of friends of legislative history. My only point is out on the face of the statute it carves out disputes against the executive branch. Legislative history confirms that. You dont want courts resolving political issues. My final point is on cause of action. Even if you dont think that the statute displaces their jurisdiction, and remember they have to have an affirmative ability to sue. They said their affirmative ability to sue is on equity. Those are two there are two fundamental problems. Knowirst thing is that we the high cause of action equity has to be justified. Iey have no history of a suit Congressional Committee to enforce a subpoena. The Supreme Court said that there is a wide divergence between the subpoena as the ability to issue the subpoena. They cannot wait to showing the equity. The second is, even if you dont think congress has displaced jurisdiction, congress is positioned to carefully and limit cause of action. Surely this court should invent a cause of action for the house. At a minimum, congress should have to speak on this before this court is thrust into the middle of these political disputes. I am well over my time. For you. A question i asked you about does anybody have standing and you said no. The lawyer in me has wondered from the beginning why there is no attorneyclient privilege in this case. Themay be waiting until separation of powers sweeps it or you are waiting until the and he canre asked deny a refused to answer based on attorneyclient. But just like you answered my questions, no one has standing. Is he your position that this goes to the and i dont mean the lowest in the sense that any federal employer employee is low, but amongst the most menial type of employer. And oh 1365 talks not only about officers, but employees. It depends on what aspect you are asking about. To theuments all applied branch officers. The argument is very much limited to the close advisers profession and those who work with alter eagle alter ego. I dont think you mentioned attorneyclient. We had an argument which is , buty can subpoena if the court were to ask mr. Mcgahn to testify, many of the question and the predominate of the questions he will have not just attorneyclient, but a bunch of objections to the questions. We are not even at that point because we dont think they have the authority to subpoena him at all. Says donter in me minimize attorneyclient privilege. If there are no further questions than i appreciate your time. May it please the court, on behalf of the Judiciary Committee on the u. S. House of theesentatives, your honor, department invoke separation of powers principles to argue that the committee does not have the right to come to court to seek enforcement of this valid subpoena. And with every other party that issues a subpoena. To hold, the were committee would not get a judicial remedy to obtain the information it seeks in exercising its article one authorities. That would shift the balance of power significantly in favor of the executive branch and would leave the president congress has plenty of remedies. Impeachment power. We have lots of remedies that have been used for a long time. The injury is the deprivation the committee is entitled to exercising its article one functions. It is true that the house has other remedies, but its recognized in 1984 and 1996, those other remedies are not effective in the remedy for this specific injury. That is getting information in a timely fashion that the committee can use for its priorities. I have a threshold prussian the threshold question for you. Even if we agree with you for absolute testimony communities is extravagant. I wonder why we should be involved in this dispute at all, given the present posture. By what authority are you now pressing this appeal . Here to protect the legislative Oversight Authority of the House Judiciary Committee or because of the impeachment. Arguably it would differ based on whether you are here. Whether you are wearing the impeachment hat. The articles of impeachment are all up the controversy over ukraine. Mcgahn was long gone from the white house by then. Chosen not to press that matter. The only possible he would have is if he were here to tell me that the house will get approved for another article of impeachment. Is that the position of the committee and the speaker that there would yet be another article of impeachment to which mr. Mcgahns testimony would be pertinent . There is a lot and that question and i want to make sure i answer all of that. The short answer is that we are for pursuing this case oversight purposes, and we all agree that the case is not meet moot because of the priorities. You are here on legislative oversight. We would expect the holidays we remain here because of the impeachment. I want to be very careful about how i answer the question in terms of the committees continuing interest in testimony from mr. Mcgahns impeachment howoses and walkthrough its relevant to the existing articles of impeachment and the Ongoing Investigation. And if we could turn in our supplemental brief on page seven, the committee as left by the house, the mcgahn testimony remains in the Ongoing Investigation into the president s of struct of conduct of struct of obstructive conduct. An President Trump committed Impeachable Offense is not covered by the article. We will proceed accordingly, including if whether by recommending additional articles. Saying new articles of impeachment . Thats a possibility. You are saying this on the authority of the speaker . You have the authority from the speaker of the house to say that there may be other articles of impeachment coming . I am here saying exactly what we said in our supplemental brief, which is that with full authority of the house and taking a step back as a matter of principles, if the president was impeached by the house unto articles does not mean that the house could not, if mr. Mcgahn informationse that for the existing articles for its decisionmaking with respect for how to proceed in the current impeachment for any trial in the seven in the senate. Also as we said in the supplemental brief, for considering whether possiblegahns testimony is only relevant in the impeachment trial of the articles of impeachment. He was gone. This is all about the ukraine controversy. He is gone from the white house by then. The second article of impeachment relates to congress. Of congress and the ukraine controversy . That is correct with the respect to the specific misconduct in the article. But the article also refers to the president s previous efforts to undermine federal intonmental investigations foreign interference in the United States election. And as the committee make clear in this report, that pattern of misconduct is relevant to consideration of the second article, including whether the remedy of removal is the appropriate remedy. That is outlined as we detailed in our brief, in the judiciary brief that accompanies the articles of impeachment. Heahn came in to testify and was laid out as an eyewitness of several of the allegations of the president s misconduct. Its a pattern of practice you would be making. It is the pattern that would be relevant. And that the information of the Judiciary Committee is continuing to pursue, that is part of why we press this appeal expeditiously, because that information would be relevant to the committee and the leaders of the house in making decisions about how to proceed. That remains true given the current state of affairs with the articles of impeachment. Here for thee are impeachment purposes, and also because the committee from the outset has been considering importune remedial legislation, including to governmental interactions between the white house, doj and fbi. Including the foreign offers of contribution to Political Action committees and upcoming elections. Those are legislative priorities that are also time sensitive. We have expedited the appeal a subpoena, but was based on legislative and oversight paredes priorities. We heard counsel mcgahn say that the subpoena only seeks i had the courts and subpoena talking about testimony and creating a false record. I dont know if that could be. Ore of all the testimony could the committee only seek mcgahns full testimony . You are correct that the subpoena sought for mcgahns testimony and related documents. To which they are scheduled to capture this subpoena. We did reach an agreement with the department with respect to the status of the production. But the document aspect is no longer the issue in the appeal. Related to having mcgahn testify in having testimonial evidence. You reached agreement. Was it a stipulation that the committee would not seek any other documents or testimony to reveal the likelihood of other documents relevant to that testimony . Is, no. Hort answer they would produce the documents i wont pursue this, the record speaks for itself. I dont know what the terms of this is. He accommodations there was significant discussion in the rains case. I would like to start their with respect to standing. We do fundamentally disagree about the meaning and the decision. The holding in that case, as the Supreme Court has made clear in later cases, is that individual , with the six members of congress who have lost the vote on an act, did not have standing. They do not have a concrete idea the delusionnsert of legislative power. What do you think the issoning supporting that much broader than you maintain . We heard several times in the three pages of history that those historical examples relate to the lack of challenges between the executive and legislative branches about the constitutionality of fully enacted statutes. This is a different that is not with the discussion talks about. Powerscussion talks about from one branch of the government not being a basis for article three standing. Chief justice listed in may have involved constitutionality theute, but the reason chief justice used is broader than that. Tell me about the reasoning. His reasoning talks about power of a branch of government that has no sufficient grounds. That is a problem. A few responses, your honor. First, this isnt about the diminution of power of a branch of government. This is the case about a subpoena that the committee issued. I thought your argument was that the injury the House Judiciary Committee has suffered is frustrating its ability to carry out its investigation . Is that the power to say the constitution gives you . That is the power vested in the house and delegated to this committee. This committee is the plaintiff in this case. The question for standing purposes is trying to determine whether the plaintiff is asserting an injury that is a particularized injury to that plaintiff. That is what distinguishes the committee in this case, which has issued a subpoena and is entitled to information in response to the subpoena from the plaintiff in raynes who were asserting an interest that belong to the legislature as a whole. This is a case in which the plaintiff in the words of the Supreme Court in later cases, there is a match between the plaintiff and the injury asserted. Raynes is about more than just you are being injured. There are certain types of injuries. As i understand your friends argument about raynes, the Supreme Court says this type, the type of injury to a branch of congress that is amorphous, that diminishes their power when they come to the court to say the executive has done something to diminish our power, that thats not the type of dispute we are supposed to referee we are not an ombudsman over the operations of government. That is not our job. A few responses, your honor. It is important to return to the particular facts of this case because the courts have long been adjudicating the validity of subpoenas, including subpoenas directed at the president and Senior Executive Branch Officials. That was the case in United States v. Byrd that chief Justice Marshall ruled in. There are additional separation of powers concerns in an overlay of an interbranch dispute here, but a few points criminal proceeding, right . That is correct. There are also proceedings where the rights of individuals are at stake but none, i dont think you have any instances where the institutional interest of the congress is has been injured and, therefore, is as this court recently recognized, there is a long history that predates the founding of our nation of legislative subpoena its a subpoena to a nongovernmental actor, right . The accounting firm. As i understand your friends argument, i want to get response to it, this isnt a gardenvariety subpoena enforcement. This is a dispute over information between two Political Branches of government. Its a very different sort of creature than the typical subpoena enforcement. And in that respect, its very much like this courts decision in at t, which this court understood to be an interbranch dispute. That was a case where a house subpoenatee issued a it comes back to the argument of raynes. If we read narrowly as you urge us to do, it seems to me at t and Senate Select committee has some force that we need to account for. If your friend is right that it is broader than that, then at t and Senate Select committee are suspect, they are from a day when this court engaged in some expeditious ventures and legislative standing. Those as i said jokingly before the bad old days have been changed and isnt that right . The issue is if we agree with you that raynes should be read narrowly, then at t and Senate Select committee may tell us there is standing here. If we disagree with you, we say what it was really about, the reason that raynes was to warn us of getting involved as Justice Souter said, getting involved in these disputes, that you lose. If i could push back on the premise. We are not advocating a narrow reading of the case. We are advocating a reading of the case thats consistent with holding in that case which is the last paragraph of the opinion, is also consistent with the reasoning which relates to Different Branch dispute and the lack of history about disputes over the constitutionality of enacted statutes. The question was whether the plaintiff was the correct plaintiff to assert the injury. That is the question in every article iii standing case. The Supreme Court has characterized the case that way in its later decision. We know it matter that he was individual legislators at issue in raynes and nothing about raynes overruled this courts very clear holding in at t does chenoweth suggest that it does . Chenoweth was a case about, again, members asserting amorphous dilution of legislative power. This is i keep going back to this, but it matters that this is a subpoena enforcement case. The type of dispute that the courts are very familiar with answering, and even if there are political question at issue in this case, and we know from the Supreme Courts decision, even if their political issues the courts would gladly avoid, it is the duty of the court in the case that is otherwise judicial, and we submitted that this one is clearly consistent with this courts precedent and long history practice between the branches, to say what the law is. That is what were asking the court to do is to issue a ruling that mr. Mcgahn, who again, he is a private citizen. Hes a former president ial aide, to the extent the concert is that this dispute is not sufficiently particularized because there are not, theres the individual right at issue. The committee has subpoenaed a private citizen to appear and testify and provide relevant evidence. Hes in many respects similar to at t in that respect. The executive has asserted an absolute immunity defense that is unfounded in the law, and were asking the court to resolve the issue so that the committee can expeditiously in response to this subpoena. I do like to talk as well unless there are further questions of standing about subject matter jurisdiction, and going to the plain language of section 1331 which makes very clear that there is jurisdiction over the committees sued in this case which arises under the constitution and laws of the United States as this court said in at t in 1976. Their argument is essentially an applied repeal argument. To the extent theyre looking at legislative history or other factors, we know that the court did favor implied repeal, particularly in the jurisdiction al context. Nothing about 1365 repeals a jurisdiction for house subpoenas under 1331. Because, of course, 1365 deals only with senate subpoenas, and whatever limitations are in 1365 with respect to the senate are neither here nor there with respect to other the house has jurisdiction and continues to have jurisdiction under this courts reasoning in at t over, over how subpoena enforcement actions. If theres questions about 1365, im happy to address those, but otherwise, i will briefly say that there is what do you do with your friends argument based on legislative history . Your honor, in 1996, the te issue that had arisen for executive Branch Officials who asserted personal privileges to make clear that those were covered by 1365 and there was jurisdiction. To the extent that our statements by individual senators in the legislative history about what that clarifying amendment meant, again, that doesnt have anything to do with house subpoena enforcement disputes, and any limitations the senate understood might be included in 1365 certainly no basis for imposing those on the house, particularly where what the department is asking is that this court recognize an implied repeal of a jurisdictional grant over jurisdiction over house subpoenas, and those are favored in any ambiguous legislative history is not enough to overcome the burden that they would have to meet. Thats a tactical point. Congress is part of the government, too. This is just the department of justices argument in support of mcgahns position. Correct. You said the government. I admit, i tried to catch myself what i i had previously worked at the department of justice. Im still in that habit, but im adjusting to my new role so i apologize for misspeaking. On the cause of action question, two points there. One is my friend on the other side mentioned grupo mexicana. That case is about a very different circumstance with the question was whether a court sitting in equity could exercise jurisdiction that had historically not existed at all over Real Property before there was a judgement. The fact theyre very specific, holding a very specific in that in the case. As i understand, the departments argument here, he is willing to acknowledge that these cases may be distinguishable on factual grounds. But i understand his argument to be that the court in raynes and elsewhere basically was laying down a path for the court to be very wary of entering this type of dispute. And he gave the reasons why. And so to the extent raynes signaled that for the court, almost saying dont try it because heres whats going to happen if you do, then the question to me is, where raynes says well, there may be factors that were nevertheless, in favor of the course entering this area, and when we look at those factors such as the history of whats been going on, counsel makes the point, you cant find anything like this. Of course, judge griffiths questions, points out maybe theres never been a situation like this. Because in the past, the department of justice, the president and the attorney general have not interposed objections to supplying information to the committee. I think thats the hurdle were trying to address here because the are fine arguments and i realize that courts can evolve. But nevertheless, raynes is a fairly broad statement and it says it doesnt close the door completely. I dont mean close the door completely to the extent the department is arguing this morning, but its very strong language, isnt it . We can parse these cases to distinguish precisely who the plaintiff is. To that extent, the committee can argue its an open question before this court and its an open question if and when the case goes to the Supreme Court. But thats the response were trying to get from you. A few responses, your honor,. One, with respect to the question of how this has worked between the branches. I would direct the court to page 48 of our brief where we point to a number of examples where contrary to what the department has said, legislative subpoenas issued to the executive branch, including white House Counsel and former white House Counsel who appeared and testified voluntarily. Voluntarily as i understand the departments position. Voluntarily in the sense that we didnt have to bring a court action to get a judicial judgment requiring them to comply with about congressional subpoena. Isnt that the whole point of your friends argument, that you didnt have to do that and you got it . And that in the place of a court coming in a picking a winner or loser, the nations history has been negotiation, compromise, accommodation. Its messy, it takes time, it involves all these tools that you can use in the court but thats what the separation of powers means. Isnt that the point . We would have been happy to have reached an accommodation in this case because it would have meant that mr. Mcgahn wouldve already shown up and testified and provided the information. Can the appropriations get the senate to stop confirming judges, make it an article of impeachment . Youre not without remedy here. The question is whether whether you, whether the constitution allows you to pull the courts and im just channeling Justice Souter, whether the constitution allows you to pull the courts into this dispute that historically has been thought out, duked out between the Political Branches. Thats the tough question. Right. I understand the concern. The fact that there are other remedies that would be available to congress i think really underscores that congress has the power, the Supreme Court has long recognized this power, there is no dispute, to issue subpoenas and obtain compliance with those subpoenas. We have come to this court to gain an orderly and respective resolution of this dispute, including about a core legal question on absolute immunity that is the type of legal question that the court has answered in the past, that is traditionally capable of judicial resolution and has been answered in our favor, against the governments favor every time an analogous claim has been raised. Notwithstanding that we are in in a situation now where there has been an unprecedented refusal to comply by this administration with valid congressional subpoenas. The committee is continuing in an attempt to exercise its constitutional functions and do its job under article one to obtain orderly resolution of the dispute and that is why were here. The core questions in this case are questions the court is wellpositioned to resolve. They relate to whether mr. Mcgahn, a former aide and private citizen, is required to comply with the congressional subpoena. Just so i understand, if we were to affirm the District Court, what happens then . Mr. Mcgahn shows up before the committee, hes sworn in, hes asked questions and then he interposes objections, right . That is what we would expect to happen. What happens then . He says i cant speak because im a close aide to the president , theres executive privilege or, what happens then . One option is if this court were to rule in our favor and reject the absolute immunity defense that we could reopen the discussion with the department about the appropriate way what happens in my hypothetical . Your hypothetical, the president has not invoked executive privilege with respect to mr. Mcgahn. What happens if he does . My hypothetical is that he does. Those questions have not been resolved by this Opinion Group and we are not asking this court for resolution. Any executive privilege claim that was valid and asserted again as we argued in brief is another reason to reject the absolute immunity defense. What happens next . He asserts executive privilege. What happens next . There would be, well, we would if you were the senate, you couldnt come here to get a resolution which were not the senate, you are the house. We expect you come back here we would go back to the District Court for a resolution of those questions as in when duty that. But again, if this court were to rule in our favor we would expect to reopen the accommodations process and hopefully reach a resolution that would allow us to avoid contenting to litigate the case. And just one final point i want to make if i may, which is the imbalance in terms of the argument here, particularly on standing, that a committee of the house exercise its article at authorities unlike every other litigant who issues a subpoena, and unlike what i understand the department of justice would do if mr. Mcgahn actually said he would appear and testify, i expect that they would as theyve done in other cases relating to our subpoenas that they would go to court to seek to prevent him from doing that. And in their view, they would have subject matter jurisdiction, a cause of action and standing to do that but they would like to keep the Judiciary Committee out of course from getting a Court Determination on the same question about the same subpoenas. If there are no further questions. Thank you. Take three minutes. I appreciate that, your honor. On standing, my friend basically wants this court to read raynes narrowly to its facts and ignore its reasoning but read at t broadly. As we talked about, we agree the facts of raynes are a case involving individual nervous but the reason goes much more broadly. I dont think we got explanation of why the reasoning doesnt apply here. There was some suggestion that information is somehow obviously an injury. Take for example, the examples that were given in raynes. Of course, an executor goat of an conversely, they emphasize that this is information that congress needs. The point is, as judge griffith emphasized, they needed information in furtherance of their legislative prerogative. Let me give a very stark and simple example to show you why they are wrong about this. Imagine if someone was stealing property out of congress, going in and stealing computers. They couldnt file a lawsuit to stop it. They couldnt file conversion action or criminal action. They would have to come to the executive branch is at the department of justice to file its lawsuit. Why . Because under our constitution, the ability to File Lawsuits on behalf of the United States, it executive. The thats the Square Holding of buckley versus the later is the problem was there but the sec staff by the members of the lead surgeon had the ability to bring enforcement action. Its that some sort of oddity that they need to rely on executive branch to bring lawsuits. That is how the structure works and the way it works is through political process, through the political tools. If theyre not happy with that executive branch is complying with its obligations and bring a suit, they have political tool, ample tools over legislation and appropriations and nominations and all the rest. Just like the executive branch, if we are not happy, what you dont have is federal court step in the middle of it in the middle of a food fight because that politicizes the judiciary. To be clear, is it your view that the opinions of the office of Legal Counsel that recognize these remedies were not adequate in this context . Its no longer good law . Im not quite sure what you are referring to but i mean, you cant just pass legislation on a unilateral, a unicameral basis. So the notion that the senate at this stage is going to go along with some of these things, you know, i mean, its nice to write a law review article about it, but the reality is, we have two like branches at loggerheads here. The question really is, the fundamental question is, is there no proper role for the courts . Your answer is no, not in this type of dispute. Either they have to duke it out or nothing happens. The fact that one branch and one part of the branch is stymied and what the Founding Fathers thought was a Critical Power in terms of checking abuse of president ial power, and here the allegation is made that that is what happened. We have yet to have a trial on that, but that is so fundamental to the form of government we have. And as you know, the Justice Department has previously taken the position that the courts have no role when the president is exercising certain article ii powers. The Supreme Court has said no, no, there is a role. It may be a limited role, but there is a role. Thats what i think were struggling with here. I will get to your argument, but if you dont have case on all fours, then you are saying constitutional avoidance, you have the message from the Supreme Court. A couple of things to talk about. First is bicameralism is a feature not a bug of our constitutional system. I mean, you cant pass an act of Congress Without two houses. Thats my point. The fact that their political tools require efforts and require accommodation within the branches and across the branches, thats the whole point of our constitution. But im getting to the point now, there is no such cooperation in our constitution. Identified as a fundamental need for this government to continue to operate effectively. Just like, your honor, congress has very conveniently carved themselves out of foia. We cant just pass a law that says congress is no longer subject to foia now. Thats how the political process works. If they dont have enough tools, because they dont have enough Political Support in the senate and public, thats how it works. Thats what campbell versus clinton records. If i could make one last point on jurisdiction, which is my friend said its just a look at 1331, its clear they can file a lawsuit so this is implied repeal case. It wasnt so clear to the d. C. Circuit in 1981. This is from the application i cited to earlier. Prior to 1978, congress has only two means of enforcing compliance with its subpoenas, a statutory criminal content mechanism and the inherent congressional contempt of power. Need for Civil Enforcement of subpoenas. Presently, congress can seek to enforce a subpoena only by use of criminal proceedings or by the impractical procedure of conducting its own trial before the house of representatives or the senate. It is simply anachronistic for them to suggest that everyone always knew that 1331 was lurking in the background and they could invoke it. There is a history or tradition of it. You can avoid the constitutional questions by saying at a minimum, congress has to speak. Thank you, you everyday we are taking your calls live on the air, and we will discuss policy issues that affect you. Cnns up, the host of reliable sources discussing his new book, hoax, donald trump, fox news, and the dangerous destruction of truth. And then creek surely talks about campaign 2020 and the history of postconvention president ial campaigns. Journal, liveon at 7 00 eastern this morning. Be sure to join the discussion with your phone calls, text messages, and tweets. Today, treasury secretary Steven Mnuchin testifies before the House Committee before on the urgent need for coronavirus Economic Relief and his administrations key implementation. Watch live coverage of the hearing at 1 00 p. M. Eastern on cspan, on cspan, ondemand at cspan. Org, or listen live on the cspan radio app. Q a, our night on guest talks about her experiences covering the regions around pakistan. Sometimes people say things that are critical of the United States or the west, thats more common than somebody saying something offensive about being a woman are causing problems. People tend to be