Investigation. All persons having business before the Honorable United States Court of appeals for the District Of Columbia circuit. Draw near and give their attention so the court is now sitting. Be seated, please. Case number 195331 committee 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 h