not have been expected to enumerate every cause of action covered by such a general jurisdictional statute and did not attempt to do so.” (Id. at 21-22] Section 1345 also provided a basis for subject matter jurisdiction, the Department contended, since a suit commenced by the United States did not have to be "expressly authorized” by a separate act of Congress.

Turning to the question of standing, the Department argued that both Ms. Gorsuch, in her capacity as Administrator of EPA, and the United States had suffered legally cognizable injuries. With respect to Ms. Gorsuch, the Department explained:

Mrs. Gorsuch has been cited for contempt by the House, which has submitted the matter to the Executive for prosecution. Indeed, even if she is never prosecuted by the Executive, the House's contempt citation, in and of itself, more than amply establishes the immediacy of this controversy. The House vote represents a formal determination by a co-equal branch of our government that the head of an Executive agency has failed to comply with the law. That citation thus stands as an accusation by the House of Representatives that an Executive officer has committed a criminal act in discharging her official duties as Administrator of the EPA. The effectiveness of any high-level executive official is, at least in part, dependent upon the establishment of relations with the Legislative Branch free of the sort of coercion reflected by a contempt of Congress citation. These injuries are all concrete, direct and immediate and can only be redressed through judicial resolu

tion. (Id. at 24-25 (footnote omitted)] With respect to the United States, the Department argued that "the injury to the Executive Branch and its agencies is an unprecedented interference with its responsibility for faithful execution of the laws and derogation of its independence from a co-equal branch of government." [Id. at 25] Moreover, said the Department:

The threat of premature disclosure if the Executive loses control over sensitive law enforcement documents can well be expected to inhibit actions of all participants in the law enforcement process. It is likely, for example, that outside sources of information will not cooperate as freely due to the fear of possible premature disclosure; that parties responsible for the hazardous waste sites will avoid settlement negotiations and await possible disclosure of the government's settlement strategies, and that staff attorneys may shrink from conducting a candid and thorough evaluation of an enforcement action where those evaluations may be disclosed before the case has been completed. Accordingly, the threat that the Executive will lose control over enforcement file materials creates a present uncertainty as to the overall independence and integrity of the law enforcement process. See Perry Dec., paras. 32 and 33. Such uncertainty and the consequent harm to the enforce ment process constitutes an injury-in-fact to the Execu

tive's ability to execute the law and, hence, to the welfare

of the general public. (Id. at 27] Addressing the propriety of declaratory relief (injunctive relief was not requested in either of the amended complaints), the Department argued that the “extraordinary and compelling circumstances of this case strongly militate in favor of departing from the usual rule that the validity of a congressional subpoena can be tested only in defense of a criminal proceeding.” (Id. at 37] Although conceding that it would normally be premature to enter a declaratory judgment on the legality of a witness' refusal to comply with a subpoena except as a defense to a contempt proceeding, the Department insisted that the case was unique, that the criteria for the issuance of such a judgment were present and therefore that it should be issued. In the Department's view, there was a "substantial” controversy, the parties had “adverse legal interests,” and the controversy was of "sufficient immediacy and reality" to warrant a declaratory judgment.

The Department emphasized that the President had instructed Ms. Gorsuch to refuse to comply with the subpoena. “Under such circumstances, it is unnecessary to require the agency head to be cited for contempt-much less subjected to criminal prosecutionbefore resolving the legal issues, the Department maintained, citing as support United States v. Nixon, 418 U.S. 638 (1974). (Id. at 32] Moreover, the Department continued, the Steffel v. Thompson case relied on by the House defendants also supported the propriety of declaratory relief, since a criminal prosecution was not actually pending in this case. (According to the Department, certification of the contempt resolution to the U.S. Attorney by the Speaker did not render a prosecution “pending.” The House defendants took the opposite view.)

Finally, the Department asserted, declaratory relief was not only proper in this case but was also necessary, because the regular procedure for testing a witness' claims (i.e., in defense of a contempt action) was not available. Because the EPA Administrator was acting at the direction of the President, and upon the advice of the Attorney General, the Department argued that it was “questionable whether the Department of Justice could properly prosecute Ms. Gorsuch for contempt.” In a footnote the Department explained:

The inability to prosecute Mrs. Gorsuch for contempt has several dimensions. As we have shown, pp. 34-35, supra, 2 U.S.C. 194 cannot impose a mandatory obligation to prosecute Mrs. Gorsuch. Since the Attorney General counseled the President to instruct Mrs. Gorsuch to withhold the documents in question, it would also raise serious ethical questions for the Department of Justice to undertake a discretionary prosecution. See Principles of Federal Prosecution, U.S. Dept. of Justice, Part B(1) (July 1980). And, because Article II makes criminal prosecution an exclusive responsibility of the Executive Branch in most situations, it is doubtful that Mrs. Gorsuch could be prosecuted by anyone who is not subject to the direction of the President. Finally, the criminal prosecution of an Execu

tive official for complying in good faith with the Presi-
dent's instructions to withhold documents could well be
unconstitutional in any event, since it imposes a heavy
burden on the assertion of executive privilege. In this
regard, it is significant that civil litigation remains availa-
ble as an alternative means of resolving such inter-branch
disputes. See Senate Select Committee v. Nixon, 498 F.2d

725 (D.C. Cir. 1974). (Id. at 36] Although the House defendants had disclaimed any argument based on the political question doctrine, the Department nonetheless briefly discussed it, arguing that it did not require abstention by the court. Because there was a constitutional confrontation between two branches of government and it had reached an impasse, the court had a duty to intervene in order to provide for an orderly resolution of the dispute, the Department maintained.

Next focusing on the applicability of the Speech or Debate Clause to the action, the Department contended that the Clause did not bar the suit because the "congressional action in question is complete, and the court is in no way requested to interfere with an ongoing congressional activity.[Id. at 40] Moreover, said the Department, in a similar suit, United States v. A.T. & T., 567 F.2d 121 (D.C. Cir. 1977), the District of Columbia Circuit had held that the Clause was no a barrier to judicial review. The Department added that many of the House defendants' arguments regarding the Clause were no longer applicable since the Executive branch was no longer seeking injunctive relief.

The Department also maintained that the Clause could not be asserted to immunize the “non-legislative” activities of the Clerk of the House in certifying the contempt resolution to the U.S. Attorney and of the Sergeant-at-Arms in delivering the citation to the U.S. Attorney. “Those acts have nothing to do with 'speech or debate' nor are they an integral part of the House's internal deliberative and communicative processes,” the Department argued, insisting that the acts were no more than “an effort to enforce the legislative decision.” (Id. at 51-52]

Finally, the Department contended that Ms. Gorsuch had properly withheld the subpoenaed documents under a legitimate claim of executive privilege, and the House defendants had done nothing to satisfy their burden of demonstrating that the privilege was wrongly asserted or that they had a compelling need for the documents. In the Department's view, executive privilege-rooted in separation of powers principles—could be invoked to protect sensitive documents in open law enforcement files, which if disclosed might damage the ability of the Executive to enforce the laws. The Department elaborated:

Effective law enforcement relies heavily on the assurance of confidentiality within the enforcement process. The need for confidentiality is even stronger, of course, while enforcement is being carried out and enforcement policies and strategies are still being developed. Without that assurance of confidentiality, efforts of the Executive Branch to enforce the law effectively would be undercut by disclosure of sensitive investigative techniques, methods or

strategies, forewarning of suspects under investigation, deterrence of witnesses from coming forward, endangering the safety of confidential informants or prejudicing the rights of those under investigation. Moreover, disclosure of investigative files in a particular case could interfere with ongoing administrative enforcement proceedings and could obviously prejudice or harm the government's case ..

The disclosure of open law enforcement files could also seriously impair the Executive Branch's functioning as an independent branch of government. Were the documents at issue here disclosed to congressional subcommittees, members of Congress would become partners in the enforcement process, possessing the information necessary to participate in or interfere with ongoing enforcement actions. The Executive Branch would lose control of the documents and thus would be unable to ensure that the strengths and weaknesses of the government's case not be revealed to the targets of the case under development. [Id.

at 59-61] Further, the Department added in a footnote, Congressional guarantees of confidentiality with respect to the documents were insufficient to overcome the need for executive privilege in this case:

Guarantees of confidentiality by the Levitas Subcommittee cannot overcome the concern over the integrity of law enforcement files in this instance either. Rule XI, cl. 2, $ 706c of the Rules of the House of Representatives provides that “[a]il committee hearings, records, data, charts, and files . .

shall be the property of the House and all members of the House shall have access thereto . . (emphasis added). Thus, Subcommittee access to the documents is equivalent to access by all of the members of the House of Representatives and, accordingly, to the general public. Nor will an offer to receive the privileged documents in "executive session” pursuant to Rule XI, cl. 2, $712 of the Rules of the House of Representatives alleviate that concern. The only protection given the documents by that provision is that they shall not be made public without the consent of the Subcommittee. Since such consent could be given any time in the future, this assurance fails to provide the Executive the protection and control to which it is constitutionally entitled.

Furthermore, there is always the possibility that information will be leaked to the public by House members or their staffs. Although the same danger exists in the Executive Branch, the Executive can assert control over Executive Branch employees through a variety of potential sanctions, including loss of employment. With disclosure of documents to Congress, the Executive Branch loses that power to ensure the confidentiality of its records. Ultimately, it is the Executive's responsibility to enforce the law and to maintain the confidentiality of information that is necessary for this purpose. (Id. at 65]

21-618 0-83_-34

The Department emphasized that the documents at issue in the case were properly subject to a claim of executive privilege since they did not contain factual data (that material had already been made available to the Subcommittee) but consisted of "legal and strategic analyses of individual cases, lists of potential witnesses, settlement considerations and similar materials(,) ... the kind of work product documents that would be immune from production under Fed. R. Civ. Proc. 26(b)(3).” (Id. at 67]

Although the Department conceded that executive privilege was not absolute, it concluded its memorandum by asserting that in this case Congress had not shown a specific and compelling need for disclosure so as to overcome the privilege. The Department explained:

The subcommittee here has not and indeed cannot show any need-much less any compelling need—for the withheld documents sufficient to overcome the valid claim of privilege invoked by the Executive Branch. The Subcommittee issued the subpoena in question in order “to review the integrity and effectiveness of EPA's enforcement program and to evaluate the adequacy of existing law.” The Committee Report, p. 61. (Legal Memorandum of the General Counsel to the Clerk of the House of Representatives to Chairman Levitas Regarding Executive Privilege, December 8, 1982). The information requested is very broad in scope and the reasons for the request are very general. It is difficult to understand why the withheld documents, a small number of sensitive materials from open law enforcement files, are necessary to enable the Subcommittee to conduct its investigation. What is critical, however, is that the House cannot possibly make a showing that they are necessary because the House has not reviewed the documents actually made available to it. In fact, the Subcommittee actually refused to inspect the documents produced. Perry Dec., para. 25. Since the Subcommittee refuses to inspect the tremendous bulk of material that has been offered, it cannot possibly show any compelling need for the miniscule number of documents that have been withheld.*

* Moreover, the Subcommittee has not shown that whatever information it may have wanted from EPA could not have been obtained by some means other than the production of sensitive law enforcement documents from open Superfund Act enforcement files.

[Id. at 69] On January 28, 1983, the Department filed a supplemental memorandum in support of its motion for summary judgment and in opposition to the House defendants' motion to dismiss the complaint. The memorandum brought an additional case to the court's attention, Stamler v. Willis, 415 F.2d 1365 (7th Cir. 1969), cert, denied sub. nom. Ichord v. Stamler, 399 U.S. 929 (1970). The Department argreed that the Stamler case provided support for the position that the Speech or Debate Clause did not preclude the instant suit.

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