Once it is determined that Member's [sic] are acting within the legislative sphere, as clearly they are when voting or debating on a contempt resolution, Kilbourn v. Thompson, 103 U.[S]. 168, 200 (1882) judicial inquiry is at an end and "the Speech or Debate Clause is an absolute bar to judicial interference." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975) (emphasis

added). (Id. at 12-13] The non-legislator House defendants were also absolutely immunized from suit when performing acts within the legislative sphere either delegated to them by constitutional rule-making authority or which if performed by Members themselves would be immune, the defendants contended. Moreover, they asserted, the non-legislator defendants were not even proper parties to the case since they had no responsibilities under the Congressional contempt statute for voting on the resolution (done by the House) or certification to the U.S. Attorney (done by the Speaker). And the latter act was likewise protected because it was "intimately cognate to the vote and debate on the resolution of contempt” and therefore was “a legislative act by the narrowest definition," the House defendants concluded. (Id. at 15]

The defendants also noted that the Justice Department's position in the case was "diametrically opposite” to its position in other cases where it had defended similar legislative acts as immune from suit under the Speech or Debate Clause. The House defendants cited in particular the Department's arguments in the consolidated cases of Moore v. United States House of Representatives and Paul v. United States, Civil Action Nos. 82–2318 and 82-2352 (D.D.C.). (See page 382 of this report for a discussion of those cases.)

Injunctive and declaratory relief were inappropriate for reasons even beyond the Speech or Debate Clause, the House defendants added. In a number of cases-most importantly, Sanders v. McClellan, 463 F. 2d 894 (D.C. Cir. 1972)—the District of Columbia Circuit had denied the exercise of the district court's equity powers to grant such relief against Congressional committees, the defendants asserted. And, they continued, "[w]hen applied in conjunction with the well established judicial principle that federal courts will not interfere with pending criminal prosecutions, Younger v. Harris, 401 U.S. 37 (1971); Steffel v. Thompson, 415 U.S. 452 (1974), it becomes apparent that 'plaintiff cannot invoke the court's equity jurisdiction under the present circumstances." (Id. at 21-22)

The House defendants insisted that there was simply no reason to grant the relief requested since a subsequent criminal prosecution under 2 U.S.C. $$ 192, 194 would afford an opportunity to raise all of Administrator Gorsuch's constitutional claims. It was both "premature and presumptuous" (Id. at 23] to seek to utilize the court's equitable powers to abruptly cut off this orderly and approved method by which Ms. Gorsuch's claims could be adjudicated, the defendants emphasized. They continued:

The essence of the executive's pleas seems to be that it wishes to unilaterally substitute a civil review mechanism, the instant suit for injunctive and declaratory relief, for the procedure which has been enacted into statute. This

attempt to erect law by executive fiat, substituting ad hoc
civil review for the duly enacted statutory and judicially
approved provisions, not only represents an impermissible
usurpation of the legislative function but also ignores the
extensive history of legislative and executive consideration
of this very question and the proper exercise of legislative
judgment that proceedings pursuant to the statute provide
the necessary and proper safeguards for the witness while
serving the legislature's need to obtain information.

What emerges, then, from the legislative history of the
statute, contemporary understanding of its reach, and Su-
preme Court interpretation, is that the criminal prosecu-
tion under 2 U.S.C. $$ 192, 194 is preferred because it pro-
vides the witness, whether he or she is an executive offi-
cial or private person, the full panoply of safeguards
attendant to a criminal case. (Id. at 31-32 (footnotes omit-

ted)] Turning to the question of jurisdiction, the House defendants argued that: (1) there was no statutory basis for a suit by the Executive branch against the Legislative branch; (2) even if there was a statutory basis for jurisdiction, the action did not satisfy the Article III constitutional requirement for a "case or controversy" because neither the “United States” nor the Executive branch had standing in that neither had suffered any injury-in-fact traceable to the actions of the House which was redressable by the courts; (3) even if the elements of standing were satisfied, the action was premature and unripe for judicial review; and (4) there was no nonstatutory basis upon which the Executive could bring suit under any implied authority. The defendants relied in particular on Senate Select Committee v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) for their jurisdictional contentions.

At the outset of this section of their memorandum, the House defendants dismissed the Justice Department's reliance in the complaint on the Federal question statute, 28 U.S.C. § 1331, to support jurisdiction over the civil suit, asserting that "the legislative history of section 1331 is barren of any indication that Congress intended or understood the section to vest jurisdiction in the courts to decide interbranch suits." (Id. at 34) The defendants noted that despite a recommendation from the Watergate Committee that Congress enact legislation giving the U.S. District Court for the District of Columbia jurisdiction to enforce Congressional subpoenas issued to members of the Executive branch, the recommendation was never implemented. They added that the “issue of authorizing federal courts to hear civil enforcement cases was at the fore of congressional discussion immediately after Watergate and during enactment of the Office of Senate Counsel, Ethics in Government Act of 1978 ... and the suggestion that Congress would enact an authorization statute without comment is inconceivable.(Id. at 35-36 (footnote omitted)] A cause of action could also not be inferred from section 1331, the House defendants insisted, especially given the existence of 2 U.S.C. $$ 192 and 194 and the clear Congressional intent to establish that contempt statute as the mechanism to enforce its subpoena.

Furthermore, said the defendants, the Justice Department in the past had in fact opposed efforts to subject Executive branch officials to civil actions to enforce Congressional subpoenas. The House defendants concluded:

The position of the Department during consideration of the bill creating the Senate Legal Counsel and vesting the courts with jurisdiction to enforce its subpoenas against private parties indicates its own conviction that the action brought against the House is constitutionally flawed. Coupled with the failure of Congress to follow the recommendations of the Ervin Committee to provide federal court jurisdiction to entertain enforcement suits, it is abundantly clear that Congress never intended to create an inter

branch right of action under section 1331. [Id. at 41] With respect to 28 U.S.C. § 1345,6 the other statutory basis alleged for the suit, the House defendants argued that the section provided no additional capacity for the “United States” to sue, or the court to hear such a suit, unless another statute expressely authorized it.

Next addressing the case or controversy requirement of Article III, the House defendants maintained that the “United States” as a whole had suffered no injury-in-fact and therefore had no standing to sue. Those cases recognizing the nonstatutory authority of the Executive branch to bring suit were premised on injury to the proprietary or contractual interests of the Government, the defendants argued, and the claim that the President's obligation to ensure confidentiality of law enforcement files would be impaired by complying with the subpoena did not represent comparable injury-in-fact. Further, said the House defendants, the legislators had not caused the purported injury nor could it be redressed by exercise of the court's remedial powers. In short, they stated, the “United States” had failed to satisfy any of the three prongs of the standing test.

The House defendants argued as well that the case was not ripe and therefore was also barred by Article III. The Justice Department in their view was seeking nothing less than an advisory opinion on the constitutionality of the Congressional contempt statute.

Finally, the House defend ts contended that, apart from the jurisdictional defects, the cr..plaint failed to state

claim upon which relief could be grated. The defendants listed several reasons for this contention:

First, there is nothing in the Constitution or laws of the United States which gives the sovereign United States of America any cause of action to resolve inter-branch disputes over the use of a privilege allegedly possessed by one of the coordinate branches.

Secondly, there is nothing in the Constitution or laws of the United States which purports to grant any cause of

6 28 U.S.C. § 1345 provides: “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."

action to any executive officer to secure judicial recogni-
tion, prior to indictment or trial, that an alleged executive
privilege insulates such officer from "criminal prosecution
for contempt under 2 U.S.C. § 194." Complaint 40. The
assertion that Administrator Gorsuch “has the right not to
be subject to criminal prosecution” is intolerable for no
man or woman “in this country is so high that he is above
the law. Now officer of any law may set that law at defi-
ance with impunity. All officers of the government from
the highest to the lowest, are creatures of the law, and are
bound to obey it.United States v. Lee, 106 U.S. 196, 220

Third, there is nothing in the Constitution or laws of the
United States which purports to create any cause of action
in any executive officer to secure judicial relief against the
House of Representatives by barring it from serving “upon
the U.S. Attorney a request for criminal prosecution under
the provisions of 2 U.S.C. § 194 or from taking any further
action to enforce the outstanding subpoena with respect to
such documents.” Complaint s 41. Recognizing such a
cause of action would invite executive attempts to avoid
those laws that incur executive displeasure, on grounds
that some kind of constitutional defense might be avail-
able should an executive officer be prosecuted under such
laws. Compare Louisville and Nashville R.R. v. Mottley,
211 U.S. 149 (1980); Skelly Oil Co. v. Phillips, 339 U.S. 667

Fourth, there is nothing in the Constitution or laws of the United States which purports to confer on any potential defendant a cause of action to secure a judicial declaration that such potential defendant has a valid defense to the prosecution. Such a suit flies in the face of the historical doctrine that courts do not interfere with or enjoin criminal prosecution where the criminal action affords complete opportunity to present and resolve or legitimate defenses.

And finally there is nothing in the Constitution or laws of the United States which purports to confer on either the sovereign United States, the executive branch or any officer thereof any cause of action against the Congress of the United States, or either House thereof, for engaging in

constitutionally lawful legislative action. (Id. at 52-55) On January 10, 1983, the Justice Department filed a motion for summary judgment in the case and various supporting declarations. The Department also filed a motion for leave to amend the complaint to join the Sergeant-at-Arms of the House, Jack Russ, as a party defendant, since he had participated in the delivery of the certification of the contempt resolution to the U.S. Attorney.

On January 17, 1983, U.S. District Court Judge John Lewis Smith, Jr. issued an order granting the Justice Department's motion for leave to amend the complaint to add the Sergeant-atArms as a defendant. In line with that order, a second amended complaint was filed the following day.

On January 18, 1983, the Department of Justice filed a memorandum in support of the motion for summary judgment and in opposition to the House defendants' motion to dismiss the complaint. (The memorandum had been submitted conditionally on January 10, the day the motion for summary judgment was filed, but was not formally docketed until the court granted permission to exceed the page limitation set by local rules.) In sum, the Department argued that: (1) the case presented a justiciable claim for declaratory relief since the court had jurisdiction, the plaintiffs had standing, and the relief sought was proper; (2) the Speech or Debate Clause did not bar the action; and (3) Ms. Gorsuch properly withheld the documents in dispute under a legitimate claim of executive privilege.

At the outset of the memorandum, the Department framed the one legal question it considered at issue in the case: “May Congress compel an Executive Branch official to produce sensitive materials from open law enforcement files even though the disclosure of those documents would, in the opinion of the President and the Attorney General, impair the President's ability to take care that the laws will be faithfully executed[?]” (Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment and In Opposition to Defendants' Motion to Dismiss, January 18, 1983, at ij According to the Department, only the judiciary could answer this question and prevent a "stalemate between the other two branches that could result in a partial paralysis of governmental operations.” (Id. at 1-2]

Focusing first on the issue of justiciability, the Department argued that the court had subject matter jurisdiction over the case based on 28 U.S.C. § 1331 (because all of the plaintiffs' claims arose from the constitution and laws of the United States) and on 28 U.S.C. § 1345 (because the action was commenced by the United States). The Department relied in particular on United States v. A.T. & T., 551 F.2d 384 (D.C. Cir. 1976) to support its contention.

In a footnote, the Department responded to the House defendants' assertion that the Executive branch could not properly sue the House in the name of the United States. The Department insisted that that contention was wrong “because the Attorney General here seeks to vindicate constitutional and legal rights of the President and two Executive branch agencies.” (Id. at 19] Further, the Department stated, the Executive had “historically” participated in litigation against the Legislative branch in the name of the United States, and cited Consumers Union v. FTC, No. 82-1737 (D.C. Cir. Oct. 22, 1982); Clark v. Valeo, 559 F.2d 642 (D.C. Cir. 1977); and United States v. A.T. & T., supra.

The Department rejected the House defendants' reliance for their jurisdictional arguments on Senate Select Committee v. Nixon, pointing out that the court denied jurisdiction under section 1331 in that case for failure to satisfy the $10,000 amount-in-controversy then applicable. The Department also dismissed the House defendants' legislative history contentions, noting that the failure of Congress to enact a specific statute conferring jurisdiction on Federal courts to decide inter-branch suits was "hardly surprising in view of the broad grant of jurisdiction created by $ 1331, as amended in Pub. L. 96-486, § 2(a), 94 Stat. 2369, Dec. 1, 1980. Congress could

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