Transcripts For CSPAN3 DC Circuit Oral Argument On Don McGahn Congressional Testimony 20240713

On the judiciary of the United States house of representatives versus Donald F Mcgahn 2nd appellate. Good morning, your honor. May it please the court. The House Judiciary Committee seeks to assert 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. This interbridge dispute over institutional prerogatives bears no resemblance to be controversies under article 3 and moreover, while congress has purported to authorize senate commutes to enforce certain subpoenas against nonfederal officials, congress itself has expressly carved out the authority of the senate to enforce subpoenas against federal executive officials asserting executive prerogative objections and what gives the senate statute. How does that help us think about the constitutional issue and stability issue. I think it does in two ways, your honor, first, we have a straightup subject matter jurisdiction argument because of the senate statute. But the second point, if you rule that theres no authority, this court can avoid the serious constitutional questions presented by article three and in fact, for that reason, even if you isnt that the more fundamental question, the article three question . Those and the subject matter jurisdiction are jurisdictional questions, theyre both very important and thresholds that have to be reached before the merits. As between the two of them, there is not an order of priority. The courts have recognized that you can decide one or the other first, and principal constitutional avoidance, if you are on statutory ground, theyre on the let me ask you about the serious constitutional question, after raynes, when do they assert an institutional injury. . I dont think they ever can, your honor, but certainly not a case asserted injury against the executive branch. We think that rayne, a dispute or injury only gives rise to an article 3 controversy when its the type of dispute traditionally been resolved in federal court. Supreme court has such a thing as institutional injury, right . Coleman, Arizona State legislature. Only for state legislatures and in both 00 03 24 why would that make a difference . Because of the separation of powers problem. There are serious separation of powers concerns having a federal court resolve an interbranch dispute and this is laid out in great detail in raynes. It specifies over history there have been countless disputes between congress and the president and in none of those disputes have they be resolved through interbranch litigation, over official authority or power and the could are the went through examples like the president not suing over the tenure and congress not suing over pocket vetoes after a long discussion that its three pages in the discussion, and only a 12 page opinion, after all of that, it culminates in the conclusion of raynes and while it might not be irrational to have a scheme in which the courts had the heard those disputes, its obviously here we have a straight forward claim of executive privilege, right . Doesnt the nixon tapes case invite us to that dispute. I dont think so, your honor. Its not sufficient that the legal issue, the merits issue be the sort of issues that courts can resolve. In raynes, the line item veto act was what the courts could resolve. And the Supreme Court resolved it next, and resolved it in favor of the unconstitutionality. And made by the congressman and ranyes. Its not enough that the merit question be subjected to evolution, the question of standing is whether the plaintiff is the proper party to bring that suit and what raynes described after it went through the history discussed, the conclusion was, while you could have resolved those disputes its not what we traditionally have done under article 3. Article 3 courts, protect the rights of individual citizens and not to engage in an amorphous supervision of the government. So the select committee and at t. Those are our ventures into legislative standing and those are what we decided and and so since the committee, theres no they arent freestanding and drive by and we think that there was not standing in that case. As the at t different case in posture. At t commenced in District Court and by the United States to sue a private company. That is of course a traditional case for controversy brought to the u. S. By sovereign, brought by the branch that represents the United States in litigation. The reality of the case was it was an interbranch dispute. And its the case that the house intervened to defend its subpoena, but that doesnt change the fact that the nature of the dispute in District Court its the nature of the courts analysis about the interbranch dispute over information and thats what we have here. Thats the merits question, but in terms of the standing, in terms of whether there was a case for controversy, focusing on who the plaintiff was and who the defendant was, which is whats critical for standing, and its a suit by the United States to tell a private company not to disclose information. And to the extent that youre distinguishing that case on factual and contextual grounds, here we have a Different Party in the nature of the committee than we do, and then before the court in rayne. So the committee has been authorized by the full house, doesnt that change your analysis necessarily . So i think youre exactly right, your honor. That neither at t nor rayne is on all, and what about the reasoning of the cases . Thats what im focusing on. At t has no reasoning. It has a single sentence. What about rayne. They have three pages of reasoning why interbranch disputes and theyre not talking about individual congressmen. They say suits between one or both houses of congress and the president. They talk about how the president never sued over the line item veto act and talk about how Congress Never sued over a pocket veto. Its true that the facts involved congressmen, the reasoning goes far broader and thats essential my what my friends on the committee are arguing. And arguing this morning for an absolute rule that really doesnt matter who the manufacture is, it could be the full congress as opposed to just one the reasoning is that interbranch disputes, disputes between one Political Branch and another Political Branch over their institutional prerogatives with no private party to be seen anywhere. Go back to what the framers had in mind in having three branches of government, the hypothetical, obviously, is where one branch, arguably, is stymied in its ability to carry out a constitutional duty, there is no remedy available under our constitutional system. Other than at the ballot box. Theres no judicial, and two things about that, your honor. The first is for your honor for the concurrence, which is these sort of interbranch disputes are far afield from the traditional cases of controversy. True, true, thats not the same as saying its an absolute bar to any such judicial remedy. Your honor, i think that the reasoning of rayne says its a bar. That federal court exists to resolve the rights of the private parties. Deal with my hypothetical. The second part of what i was going to say, campbell versus clinton address this had question and said its not that there are no remedies, its that there are political remedies, when you have a dispute between the Political Branches thats resolved through political tools and the house has such as . The house has powerful tools to block appropriations, to block legislation, if the senate agrees with the house and they can affirmatively pass legislation and the senate and the house together how can you make it a grounds for impeachment, for obstruction of congress . So campbell versus clinton did talk about impeachment being one of the tools that congress has and im not going to get into whether any given fact pattern that would be proper or not. But its certainly one of the tools that congress has. And congress has powerful, powerful tools to check the presidency and thats what the court routinely recognizes if anything, congress is the more powerful branch and what congress has never done until recently is instead of using its political tools, instead of using its power of the purse and power. The select committee is the first weve had since 1974. Its the first case with one powerful exception. In 1928. The reed decision in the Supreme Court, a Senate Committee did sue to enforce the subpoena and it did so pursuant to the resolution, that not only take any steps necessary and the Supreme Court held that that was not authorization to sue and the reason the Supreme Court gave for why its not authorization to sue is that there is a wide divergence for the subpoena and exactly the reasoning why they dont have the sort of injury that supports article 3 standing. And may i ask you that its an absolute testimony of immunity. The Supreme Court is repeatedly rejected the president s claim of absolute testimony and how is this case different from what this court im not sure what your honor refers to. Thats the testimony and involved document and involving the judicial subpoena, both of which are very significant differences, but ill have you talk about more. Were several other thresholds and jurisdictional points. I just want to ask you on standing. Your position is no one has standing. So off the formulation of the argument would be that congress when its asserting its institutional, its never outstanding. And to say at a minimum, not wanting with the interbranch dispute. Thats what im talking about. In an interbranch dispute, no one has standing. Thats our position. No one has standing to enforce the subpoena in this court. That is our position, your honor. I think this follows from raynes. Its true for two very important reasons. One, its a shifting of power from the executive legislature and two, probably more importantly, the radical change that this courts role and one that poses real danger to this court. On the first ill be brief as we talk about it. It makes clear that the power to File Lawsuits on behalf of the United States, and in public rights its invested in the executive and not the legislature and it explains that the federal election commission, if all were doing is obtaining information, that might have been okay and its the case about the information. But then what it says, is the sec had more power. The sec had the power to bring lawsuits and they said that that is no part of the legislative role and thats why the Supreme Court in buckley struck down the original sec. And the flip side of that is congress has never had the authority to file a lawsuit and thats the discussion we had about id like to make one last point on standing, which is the role of the courts and this is the point that justice suter made the interbranch dispute rather than a dispute in rieft instead had them resolving a political dispute, dispute between the branches. It risks undermining Public Confidence in the court and i cant think of a better case to explain than that the facts of this case. The House Committee cited our legal position, our merits position as evidence of why the president is engaged in the obstruction of justice and should be impeached. If this could are the rules on the merits, one way or the other, you can be assured that the opinion that this court issues will be waived on the floor of the senate by one side or the other, and either the president is guilty or the president is innocent. Thats exactly the problem that justice suter is and that can be in any litigation, you know that is as and that can happen in any litigation, you know that is as well as i. Your honor, its certainly true that the federal courts will sometimes have to adjudicate deeply controversial issues and deeply political issues, but at least when it does it in the context of a private persons rights, when its protecting private parties from the government from other private parties, thats the traditional federal courts and the public understands thats the role of federal courts. When youve got congress on one side and the executive on the other side and the judiciary in the middle, picking and choosing who the winners are, thats not the traditional roles of the federal courts and thats why the public might wonder why with all respect, unelected and unaccountable judges are deciding who will win the political fight. We know that happens when the Supreme Court rules in some of these controversial the point is. We know that. And yet, what is traditional is not necessarily a definition of the total authority. All i can say, your honor, is that raynes does say, it has to be the type of dispute traditionally resolved in federal court, it has a lengthy discussion of how these types of disputes between the house, not just members of congress, but the house. But we and the Supreme Court have made it clear that appeals. Appeals court, Supreme Court must be read in context of what was particularly at issue and whats the holding of the court was and the rationale and the reasoning and the explanation may go out beyond that as we all know. Thats why i started with my hypothetical and your response to judge henderson makes it perfectly clear there are no circumstances in the department of justices view this type of matter, enforcing a subpoena in order to carry out a constitutional duty is properly in the courts. To the contrary, your honor. I think this court has a long line of cases that recognize that it will not be bound, not just by the Strict Holdings and precise facts of Supreme Court opinion, but carefully that carefully considered language of the Supreme Court will be treated i understand. Possibly be characterized as and even if its the three pages in raynes cant possibly be characterized as and the idea that this court says that none of that matters no, we dont have to say that. They have no affirmative basis to have standing unless you say that the rationale is to individual members. Havent we recognized the power of raynes in chenoweth and it affects our prior legislative standing our creative approach back in the battle days . What its done is reject every single attempt by federal legislators to bring in chenoweth and campbell. And this precise issue what it is for the full body rather than the legislatures. The reasoning, there are three pages of that opinion that are not talking about the individual legislatures that are talking about disputed can i ask you about the merits now . Sure. Im happy to answer. So youve been riding the raynes horse pretty strong, gallantly, right . And yet it tells us that History Matters a great deal in these separation of powers issues. Well, the memorandum from the department of justice, office of Legal Counsel, says the first example is absolute testimony immunity, thats where im going, is in 1944. Thats more than 150 years after the founding. Why should we elevate this late stage innovation to the point of constitutional law . Well, to be clear history, history may help you on your article three standing argument and thats all you would need, but if we disagreed with you on that, history hurts you on your testimonial privilege. Exactly to the contrary, your honor. It is true that the first, you know, written opinion describing this might be then, that they dont have any historical examples of congress subpoenaing the president or his close advisors and those individuals testifying under compulsion. As opposed to choosing to testify. Of course, the give and take between the Political Branches has always been anhas there ever been instance of such broad scale defiance of a congressional request for information in the history of the republic . Has there ever been anything like this . Your honor, i think that question with all due respect underscores exactly why theres dangers of the Court Getting involved in the merits of answer the question. I dont want to fight the premise, but theres a big dispute whether this is a wide scale massive resistance or whether one is wait, wait, wait, i mean, instruction has been given to the United States not to cooperate in any form and fashion with an inquiry, has that ever happened before . Towards one particular individual in one particular position youve talked about before, but everyone for the administration, has that happened before . Not to my knowledge. I think the president would say. Never before in history has congress engaged in the illegitimate that theyre doing. And i dont want to get into that, thats the sort of political dispute this court should not be engaged in. This engaged in. This court should not be refereeing who is right or wrong whether the president is acting totally unusually or congress is acting totally unusually. Thats exactly why the court should stay out of the merits. Theres a way to characterize the issue that my hypothetical tried to point out. In other words, legal questions come before courts that may have collateral political consequences where members on both sides use the courts decision to support their position. Thats a different issue though. This court doesnt have to decide the merits of the impeachment inquiry in order to decide whether or not it has a proper party before it and that party has all the other jurisdictional requirements. In terms of simply what ill describe and i know youll challenge this, a procedural matter of enforcing a subpoena. Look for not only testimony, but documents. Theres no documents in this case, your honor. Materials. It is only testimony. The parties have resolved their disputes over documents. All this case is about is just about testimony. So all the documents including the grand jury transcripts and other matters related to . Those are other cases, your honor. In this case, the mcgahn that were arguing right now. I dont want to bring in matters outside the record, but we all know there are materials that have not been produced. Im not disputing that, your honor. All right, so, this is still a live issue. Perhaps, but not in this case. No, in this case. The subpoena in this case is for the testimony of don mcgahn, its not for anything else. If i could address this. Go ahead. The subject matter with a question, and i think as weve been discussing, i think at a minimum the standing questions are serious constitutional questions here given that the three pages that support us, and then the question is, can you avoid that constitutional question . I think theres a way to do so here. It has carved out precisely this type of subpoena against executive Branch Officials. I just do not think you can read that statute as allowing the house to circumvent it. Why dont you respond to the committees response to that argument about your statutory inclusion . Im not quite sure to be honest so ill respond to both. At times they seem to suggest 1361 atsnt displace all. You can always invoke it. That is a complete nonstarter because the way 1365 is set up in order to invoke it, the set of process to get full resolution city including through Rule Committee process. There was a question about the amount of controversy. The senate was unsure so they just went ahead and did this. This is not belt and suspenders. There are careful limits. There are limits about when the senate is authorized to sue, about where they consume. There are limits on the remedies that can be offered. If you take the position a could in run all of it. The House Judiciary Committee could go without fully through the committee process. The house could. 1365 is about the senate only. So again, there are two steps. You can take the senate on their view today now that theres no amount of controversy requirement. The senate presumes they could invoke 1331, seek criminal content. All those limitations are very nice but will not that is just not a plausible reading of the statute and if there were any doubt about it i apologize but i would like, this is a bipartisan, the sponsors of 1996 amendment to 1365. The citation is 142 congressional 19412 and 413. This is senator specter 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 person is asserting a governmental privilege available only to the executive branch. The purpose is to keep disputes between the executive and legislative branches out of the courtroom. Heres senator levin on the same point. Section 1355 generally authorizes judicial enforcement of a senate subpoena, except when a subpoena has been issued to an executive branch official acting in his or her official capacity. An exception that seeks to keep interbranch dispute out of the courtroom. Theres simply no doubt that congress did not want the senate end run theo careful limitations in that statute and file suit under 1331. I think they largely agreed because where they fall back on is this is about the senate, not about the house. That holds less water because the notion when Congress Gave the senate limited authority to sue and gave the house no authority to sue, that somehow the house has more authority to sue turns the statute on its head. If theres any doubt about it the conclusive repetition of it is this court in 1981, the application for Senate Permanent subcommittee, this court said prior to 1978, prior to the 13 c sub statute be enacted, congress had only to make means to enforce its subpoenas. Executivesk the criminal content or invoke its own inherent civil contempt. Thats exactly by the way what the Senate Report look at page said. 16 of that Senate Report when it talks about the need for the statute, it said the exact same thing that there only two means of enforcement. Background unbeknownst to there are limits that some of lurking in the background unbeknownst to everyone was this floating jurisdiction and cause of action under 1331, has no support its just not help anyone in congress thought the statute Work Together and at a minimum, at a minimum it is unclear. Does your argument signal that we should look forward to future discussions from the Justice Department about legislative history . A new day has arrived . We think it is clear on the basis that what congress was trying to do was carve off the suits and their suggestion was there was some of the mythical purpose is the only point i was making was at a minimum theres ambiguity. If theres ambiguity about whats in the Statutory Authority to begin with, what this court should do in the matter of constitutional points every judicial district is hold that are no Statutory Authority to sue and then what is the result . The result is if Congress Wants the committee to sue, congress can pass a a statute. If ever there was a party who cant complain about being forced to pass legislation, it is the House Judiciary Committee. They are part of congress. If they have Political Support that authorizes a lawsuit they can pass a statute. Take two. Thats exactly right. That is a future not above. The Supreme Court has made clear it is precisely to prevent the one house of congress from acting rationally speedy but you are listing remedies that require cooperation in the whole theses are present to the court is, this is total noncooperation and the courts are to stay out of it. My point is there are serious article iii questions about whether the how should be able to sue. Before this Court Resolves them and before the House Committee to enforce this court to resolve them, at a minimum congress as a whole should actually want this court to resolve them. Theres a good reason for that over and above judicial oversight. Would 1365 be constitutional if constitutional if it didnt have the exception for government privileges . Again, your honor, whether or not theyre suing private parties, we dont we think it is perpetually clear that it on the article iii standing if they are suing the executive branch in a purely interbranch dispute. But the point i was going to make was the reason why this matters is not just a matter would 1365 be im trying to understand youre reading a of 1365. This is a hypothetical question, i realize that. But if 1365 did not have the exception for governmental privileges it would be more unconstitutional, in our view. More unconstitutional than what . Than what it is right now which is only allows them to sue private parties. Im sorry, so you think its unconstitutional as it is . Yes. Its not a private the only point, the last what i will make on jurisdiction was to say its not just a matter of judicial restraint. Its also a matter of there a good reason for congress as a whole might want to not allow these and it ties into our article standing point which is, right now disputes over information are resolved through the giveandtake of the political process. You go back and forth and theres a accommodation and all that is resolved during the branches. That will all vanish, vanish if they have authority to file suit because then the courts resolve the and the relations will bind for all time. 1365 has been around for quite a while and have some personal experience with the statute, and lots of accommodations were made over executive privilege. Thats exactly the critical point. 1365, they dont have the ability to sue. Thats why they continue to resolve in so thats why might have to take that language out and it makes it worse. Someis is not just hypothetical. The day after the District Court in this case ruled, the day after they merely filed another lawsuit over different set of subpoenas. If this Court Authorizes standing and cause of action and start adjudicating the merits, it will never end. There will be case after case after case, and this group will be in the business of resolving disputes between the branches over information. It will not be good for the courts and it frankly will not be good for either of the Political Branches because sometimes the house will lose some of those cases and then less power than they had before. That is why the senators said we want to keep these disputes out of the courts and keep them within the Political Branches. Thats the separation of powers that underlies all this. There may be another motivation to that view of the senators but i wont go there. It was bipartisan. But they were senators. Senators in their individual, in the senates power, keep the courts out. Thats my point. Thats exactly my point. But im saying motivation may be it may be their point. The whole point is they are political actors and trying to push you to this constitutional question before us and you want to come back to this. Thats all im saying is the department now is picking out with friends in the legislative history. Look, your honor, my only point is on the face of the statute it cards at disputes against the executive branch. I think that is for good and sensible reasons that you dont want courts resolving these of political issues. My final point is on cause of action which is something that even if you dont think that the statute actually displaces their jurisdiction, at a minimum that have an affirmative ability to sue. They are said their affirmative ability to sue is an applied cause of action and equity. They are two fundamental problems with that. The verses we know from decision that an applied cause of action has been traditionally justified and they have no history of a suit by Congressional Committee to enforce subpoenas. And in fact, the Supreme Court said theres a wide divergence ability to sue and the ability to issue the subpoena. They just cant meet the show the requirement for equity and the second is congress is essentially Congress Decision to pass a statute that create carefully limited cause of action for the senate. Surely this court should invent a cause of action for the house. At a minimum again, congress should have to speak on this before this court is thrust into the middle of these sorts of disputes. Well over my time. Im going to sit down. Either question for you and doesecome i asked you anybody have standing and you said no. The lawyer in me has wanted from the beginning why theres no attorneyclient privilege in this case, and you may be waiting until even separation of powers sweeps it or youre waiting until the questions are asked and he can deny, refused to answer based on attorneyclient. But just like you answered my question no one has standing, is it your position that this goes to be, and i dont mean lowest in the sense that any federal employee is low, but the most menial type of employee . Under employee . Under 1365 talks not only about officers but employees. So depends on which aspect youre asking about. , and cause of action arguments, all of those applied to all the branch officers. Our marriage argument if the court reaches it, that is very much not. It is very much a limited to the close advisor to the present. Those who basically function as his alter ego. I didnt think you mentioned attorneyclient in the merits. We had a threshold argument which is they cant subpoena the close advisers of the present at all. But if the court were to disagree and if mr. Mcgann were asked to testify, many of the questions if not the predominant of the questions being asked if he would have, not just attorneyclient a bunch of executive privilege based objections. But we are not even at that point because we dont think they have the authority to subpoena him at all and we dont think they have the authority to sue. Again, the lawyer in me says dont minimize Attorney Client privilege. If there are no for the questions, i appreciate the time. We will give you some time to reply. May it please the court, on behalf of the Judiciary Committee of the u. S. House of representatives. Your honor, the department invokes separation of powers principles to argue that the committee does not have the right to come to the court to seek enforcement of its valid subpoena as would every other party that issued a subpoena. And they invoke separation of powers arguments, but if this court were to hold that the committee cannot get a judicial remedy to obtain the information it seeks in exercising its article one authorities, that would shift the balance of power significantly in favor of executive branch and would leave the president what about the remedies your friend discussed . Congress has plenty of remedies. Appropriations power, confirmation power, impeachment power. There are lots of remedies that have been used for a long time. Whats wrong with those . Your honor, the injury here is the deprivation of information to which the committee is entitled in exercising its impeachment and other article and functions. It is to the house has other remedies available to it but as policy recognized in 19841986 those other remedies are not affected and obtaining a remedy for this specific entry. That is getting information in a timely fashion that the committee can use for its urgent priority. I have a threshold question for you, if i might. Even if we were to agree with you that the president s claim to absolute testimony immunity is in this case is extravagant, i wonder why we should be involved in this dispute at all, given the president s posture. By what authority are you now pressing this appeal . Are you here to protect the legislative Oversight Authority of the House Judiciary Committee, or are you here because of the impeachment . Arguably, our analysis of the claim would differ based on whether you here wearing legislative oversight hat or whether youre wearing the impeachment hat. The articles of impeachment are all about the controversy over ukraine. Mcgahn was long gone from the white house by then. Hes a witness to possible obstruction of justice by the president , but the house has chosen not to press that matter. The only possible relevance mcgahn what happened to the impeachment is if you are here to tell me that the house may yet approve another article of impeachment. Is that the position of the committee and the speaker, that there may yet be another article of impeachment to which mr. Mcgahns testimony would be pertinent . Your honor, theres a lot in the question and it want to make sure that answer all of it. The short answer to the first part of the question is that we hear pursuing this case for the legislative and oversight purposes and we all agree a case is not moot because of those priorities the committee has people we are also speeders if youre only here on legislative oversight we wouldnt expend if youre only here on legislative oversight we wouldnt expend spent a whole you are here because impeachment. That is correct and we remain here because of impeachment and want to be very careful about how answer the question in terms of the committees continuing interest in testimony from mr. Mcgahn for the impeachment purposes and also then walk through how it is relevant to the existing articles of impeachment and the Ongoing Investigation. And if we could turn in a supplemental brief on page seven, the committee laid out the position of the committee as classified by the house. Mcgann remains central to the Ongoing Investigation into the president s obstructive conduct and if his testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by existing articles, the committee will proceed accordingly, including if necessary by considering whether to recommend additional. Rticles so you are saying there may be new articles of impeachment coming . Thats a possibility. You are saying, youre saying this on the authority of the speaker . You have authority to say this from the speaker of the house that there may be yet other articles of impeachment coming . Your honor, i am here saying exactly what we said in a supplemental brief which was said with the full authority of the house, which is and just taking a step back as metaphors matter of principles, the fact the president has been impeached by the house on two articles does not mean that the could not, as mr. Mcgann testified but theres additional , evidence of misconduct, use that information to the existing articles for its decisionmaking with respect to how to proceed in the current impeachment for any trial in the senate for which that evidence is relevant, and also as was said in the supplemental brief, for considering whether to mr. Mcganns possible testimony is only relevant in the impeachment trial if the the present articles of impeachment trial, how . How is it . He was gone. The article is about the ukraine controversy. Hes gone from the white house by then. Your honor, the second article of impeachment relates to obstruction of congress, and if we look theres a House Resolution 755 obstruction of congress in the ukraine controversy. Thats correct with respect to the specific misconduct in that article, but the article also refers to the president s previous efforts to undermine federal governmental investigations into foreign interference in the United States elections. And as the committee make clear in its report, that pattern of misconduct is relevant to consideration of the second article, including whether the remedy of removal is appropriate remedy thats outlined as we see in a brief that accompany these articles of impeachment. And in addition, of course, if mcgahn committed testify and he was as we laid out an eyewitness to several of the allegations of the president s misconduct in a that wouldpirit, back the argument youre making right . , it is of the pattern of misconduct that would be relevant and again that is information that your committee is continuing to pursue that is part of why we have asked this court to move expeditiously because that information would be relevant to the committee and later in the house in making decisions about how to proceed, and that remains true given the current state of affairs with the articles of impeachment. Regardless, again we are here for full suit impeachment purposes and also because the committee from the outset has been considering important remedial legislation including to govern interactions between the white house and doj and the fbi, including to govern foreign offers, contributions to Political Action committees and individuals in upcoming elections. Those are legislative priorities that are also time sensitive. Example,xpedited, for the appeal which was not an impeachment subpoena, but was based on legislative and oversight priorities. And for all those reasons we would urge this court to rule expeditiously. You heard counsel say that the subpoena only seeks testimony. I read those complaints in the subpoena talking about testimony and evidence, talking about creating a false record. Ive read that to be more than all testimony. Am i correct or did the committee, as counsel argued this morning, only seek mcganns testimony, all testimony . Your honor, you are correct. The subpoena sought both mr. Mcgahns testimony and related documents of which the schedule attached is a subpoena. Now, we did reach an agreement with the department with respect to the documents. Im not sure the status of that production, but the document aspect of this is the just the court noted is no longer the issue in the appeal. Its related to having mcgahn appear and testify and provide testimonial evidence. Well, you reached agreement. Was it a stipulation that committee would not seek any other documents, where the testament to reveal the likelihood of other documents relevant to that testimony . I dont thats what im trying to the short answer is no. I believe it was an accommodation such that it would produce the documents that had been sought. I wont pursue this but the record speaks for itself but i dont know what the terms of this private agreement, not private, but accommodation was. I do. There was significant discussion ynes case and i would like to start there with respect to standing because we do fundamentally disagree about the meaning and import of the decision. The holding in the case as the Supreme Court has made clear in later cases is that individual legislators, and that case it was six members of congress who had lost a vote on an act, did not have standing. That is, they did not have a concrete and particularized injury to assert an institutional interest in the dilution of legislative power which was an interest that along to congress as a whole. You do with your friends argument that the region supporting the holy is much broader than you maintain . Those historical examples relate to the lack of challenges between the executive and legislative branches about the constitutionality of duly enacted statutes that have been passed through by cannibalism and presentment. This is a different kind of but thats not the discussion talks about. It talks about the diminution of power is not a basis, diminution part by one branch of government articles fors for impeachment standing. The facts of the case is as chief Justice Rehnquist listed may have involved constitutionality to statute, but the reasoning the chief justice at the time used, i think is broader than that. Tell me about the reasoning, his reasoning talks about diminution of power of a branch of government is not sufficient grounds to satisfy article freestanding. That is a problem for you. A few responses, your honor. First, this isnt about the diminution of power of the branch of government. This is the case about a subpoena that the committee issued. The reasoning i thought your argument was that the injury the House Judiciary Committee has suffered is frustrating its ability to 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 and 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 byrd in i understand 1870. 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 has beeness is 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 factor, 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. It comes back to the argument. F raynes 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 a 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 s was to warnayne us of getting involved as Justice Souter said, getting involved in these disputes, that you lose. Pushback on the premise. We are not advocating a merit 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 nes 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 personally 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 would this one is clearly 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 a mere that is unfounded in the law, and were asking the court to resolve the issue so that the committee can 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 o 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 there look 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 senate was attempting to clarify 1365 with respect to a specific issue that had arisen for executive Branch Officials who asserted personal privileges to make clear that those were covered by 1365 and there was jurisdiction. 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 recognized and repeal of aimplied over tional grant 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 previous 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 have historically not existed at all. The fact theyre very specific, holding a very specific in that in the case. Understand, the , hertments argument here is willing to acknowledge that these cases may be distinguishable on factual grounds. But i understand his argument to s andat the court in rayne 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 reins aynes 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 reins 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 griffith 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. Ealize that courts can evolve at nevertheless, raynes is 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 park 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 488 of our brief where we point to a number of examples where contrary to what the department 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 happen to do that and you 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 make it an article of impeachment . Youre not without remedy here. The question is whether you come whether you, whether the constitution allows you to pull justourts and im channeling Justice Souter, whether the constitution allows you to pull the courts into this dispute that historically has been thought out, duped 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 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 is 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, is 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. Mcgann. 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 defense. Immunity what happens next . Asserts executive privilege. What happens next . There would be, well, we would senate, couldnt come in 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, threat of 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. Thank you, 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 reins are a case involving individual nervous but the reason goes much more broadly. We got explanation of why the reasoning doesnt apply here. There was some suggestion that information to some out obviously an injury. Take for example, the examples that were given in raynes. Course, it interfered with the of 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. 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 assess it in the executive. 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, e are not happy what we dont have is federal court step in the middle of it in the middle of a food fight because that politicized judiciary. 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 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 about it,ew article 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 sought 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 iiexercising certain article powers. The Supreme Court has said no, no, 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 above 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 very conveniently carved himself out of foia. We cant just pass a law that says congress is no longer subject to it for 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 kuester 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 lawsuit so this is implied 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 there is no questions by saying at a minimum, congress has to speak. Your you, you are in or honor