that indicate where the tough parts of the case are, who the witnesses might be, what the legal problems are with the case, settlement negotiating strategy. Your Honor, I think it is all too clear, the House didn't even bother to respond to that factual showing, but to let those documents out can only interfere with the enforcement of the law. Indeed, I think that is just too obvious to bear further comment. Now, that being the case, there is a very direct injury here to the executive branch which is sued and to Mrs. Gorsuch. It isn't anything like the kind of injury that was asserted in such cases as the Harrington case which Mr. Brand referred to for the first time this morning. That was a case of whether one Congressman out of 535 Congressmen can sue for an action of the executive branch which he didn't particularly like. That is a far cry from the kind of standing that we believe exists here where the executive branch has been directly attacked by the contempt citations referral to the United States Attorney. The concern, of course, that Mr. Brand raised was that if standing is found in this suit, that will lead to a torrent of lawsuits. Your Honor, I think that is a prediction that isn't entitled to very much weight. This is the first time in the history of this country that an executive branch official has been held in contempt of Congress for asserting executive privilege, even though, as we spell out in our brief, executive privilege has been asserted over and over again by Presidents from George Washington on to Ronald Reagan and never has the House gone to the extreme that they did here in the lame duck session. I think to predict that there will be a torrent of other situations such as this one is-has really no foundation because 200 years of history somehow has only led to one such situation. There was some mention in Mr. Brand's argument about whether the second leg of the standing rules were complied with here, that is, whether the injury was traceable to the defendant, whether there was causality or, as Mr. Brand put it, whether there was a nexus between the action of Congress and what happened here. Your Honor, as I have explained it, our view is that it was the certification of the contempt citation and its delivery to the U.S. Attorney and its insistence on prosecution or impeachment proceedings that have created the injury to the executive which I have discussed. That is as direct as you can get. One necessarily follows from the other. And the injury involved here can be redressed by this court. This court and the court of appeals for this circuit have resolved similar executive privilege issues in other cases. Indeed, the House has agreed that this issue, this executive privilege issue, is clearly justiciable in a criminal context. The executive certainly is here in court and will be bound by any final decisions on the merits of this case. I can only assume that the House would be bound by any legal findings of the judiciary on this constitutional question. In short, Your Honor, our assertion is that there clearly is standing in this case and the final issue of justiciability is whether the declaratory relief is appropriate here. In many ways, this is a rather garden variety declaratory judg ment case and that may seem like an odd assertion since we have so many unusual aspects to this case but the purpose of-— The COURT. In effect, aren't you asking for an advisory opinion? Mr. McGRATH. I don't believe so, your honor, because I think that what this case is really like is as much like the Steffel case which we referred to a good deal in our brief, Steffel against Thompson. There what had happened was the plaintiff and perhaps there was more than one plaintiff, had been warned times several that if they continued to demonstrate, they would be charged criminally for unlawful demonstration. They went into Federal court and they sued to enjoin and for declaratory judgment against the threat of prosecution. Ultimately the Supreme Court held that the declaratory relief was appropriate in that kind of a situation where the threatened criminal prosecution would undermine substantial constitutional rights. Your honor, that is the situation we have here. The threatened criminal prosecution, the Hobson's choice as I put it before, that the House has provided to the executive, does threaten to undermine substantial constitutional rights. I don't think the House argues or could seriously argue that the assertion of executive privilege in an appropriate case is a substantial constitutional concern and I think it has to be taken for purposes of this motion that the assertion of the executive privilege in this case was proper. That being the case, in the real factual context we are in here, the failure of the court or the refusal of the court to decide the constitutional issue of executive privilege in this civil case would threaten to undermine constitutional rights and thus under Steffel against Thompson, and there have been a number of other cases along that line, it is appropriate for declaratory relief to issue. Your honor, on that question, I would like to underscore one. thing. There have been a number of cases cited in both briefs, and maybe we have cited too many cases in fact, that have dealt with the question of whether the court should abstain from deciding a constitutional question in a civil case where that same question could be decided in a threatened or future criminal case as a defense. I think if you look at the cases we discussed the most, such as Sanders against McClellan which is a decision of the court of appeals of this circuit, that what the courts have done is they have engaged in a balancing. They have looked to see whether the equitable power of the court should be brought to bear in a given situation. They have looked to the constitutional rights involved and they have looked to the procedural setting, for instance, in the Sanders against McClellan case. The procedural setting was that the congressional conduct was still in the midst and the subpoena had not been complied with and there had not been any contempt and so on. What we are saying here is the congressional process has ended. The subpoena was not complied with in this limited extent and a few law enforcement documents were withheld. The committees of the House have already voted contempt. The full House voted contempt. That was delivered to the U.S. attorney. The subpoena has lapsed. Of course, the Congress that issued that subpoena has ended and no new subpoena has been isued by Mr. Levitas' committee and he has done nothing further to attempt to enforce the subpoena. This matter is over as far as Congress is concerned. However, on the other hand, we do have the substantial constitutional rights of the Executive. I should not really put it in terms of rights. These aren't rights. This isn't something that the President wakes up one morning and says, maybe I ought to assert constitutional executive privilege today. It is an obligation to the extent that the Executive has an obligation to enforce the laws and the Executive has the obligation to do it effectively. So, Your Honor, I don't believe we are seeking an advisory opinion. I think what we are seeking is a ruling of the kind that the Supreme Court sanctioned in Steffel against Thompson, which was, of course, a successor case to such cases as Dombrowski against Pfister and other such cases which indicated the kinds of situations in which the Federal courts should or at least may issue declaratory relief. Now, there has been a suggestion in the House's papers that Steffel against Thompson does not apply because it only applies where prosecution has not yet been brought and they say, quoting some language in a footnote in the AT&T case, I believe it was, that the prosecution here really has commenced because the footnote says that the House's action in finding contempt commences the criminal case. Your Honor, I would suggest if you look at that footnote it really doesn't bear on whether a criminal case is now pending. There is no criminal case pending. If you go to the clerk's office you won't find a criminal case filed. No grand jury has been impanelled. Nothing has been presented to a grand jury and in addition, even though section 194 of title II says in the situation where a contempt citation has been delivered to the U.S. Attorney, it shall be his duty to present it to the grand jury, it is our position that that statutory language cannot deprive the Executive of his discretion to decide whether to institute criminal proceedings and if it were so construed, it would be unconstitutional. I think it is clear that there is no criminal action pending. No decision has been made to institute a criminal action and therefore, the situation like Steffel against Thompson and other such cases is that there is a threatened criminal proceeding but the very threat of criminal prosecution threatens to undermine substantial constitutional rights, or as I said before, perhaps more properly, substantial constitutional obligations that the President has. I would, finally, Your Honor, like to turn to the speech and debate clause. I do think it is critical to look at the language of that clause because it focuses on what the purpose of the clause is and that language, the relevant part says: "For any speech or debate in either House, they" which And in the Eastland case which Mr. Brand referred to, the Supreme Court indicated that the purpose of that clause is to protect the integrity of the legislative process by ensuring the independence of individual legislators. Your Honor, here we are not questioning anything that happened in the House of Representatives, anything that was said or anything that was done. What we are doing is questioning the delivery of the certification of that contempt to the U.S. Attorney for prosecution. That is the extra legislative act that Congress or at least officers of Congress did perform. It is undisputed on this record that that citation was delivered to Mr. Harris' house quite late one Friday night, your honor, just, I believe, one day after the contempt vote and that action is the extra legislative action that we rely on. Your Honor, it is important, I think, in determining whether anything is being done here to threaten the independence of individual legislators, to use the language of Eastland, to look at what we are seeking. The only relief we are seeking is a declaratory judgment as to propriety of the assertion of executive privilege. When Mrs. Gorsuch asserted executive privilege at the instructions of the President, did she act properly? We are not seeking any relief against the House or any of its Members. The legislative process is complete so that the declaratory judgment could in no way interfere with that. Indeed, I believe, by the House itself asserting six times in its brief that this executive privilege issue can and should be decided in a criminal case, underlies the fact that no decision of this court of that issue would interfere in any way with the conduct of the House. The cases cited by the House are totally different kinds of cases. Every single one of them is either a case where someone is seeking to enjoin the action of Congress in the middle, trying to prevent a subpoena from being enforced or in some other way trying to interfere with ongoing congressional activity, and that is what Eastland was all about, or where somebody is seeking to hold an individual Member of Congress either civilly or criminally responsible for actions that that Member took in the House. The Helstoski case referred to by Mr. Brand in his argument is such a case. The question there was whether the speech-the speeches given on the House floor could be used as evidence in a criminal case and it was held that they could not. Congressmen cannot be found criminally liable, or civilly liable, for things said on the House floor. We are not suing Congress for any relief here. What we are seeking is a declaratory judgment that Mrs. Gorsuch and the executive branch acted properly and I guess what it really boils down to then is the thing that Mr. Brand emphasized quite a number of times in his argument. He said that the mere obligation to defend this case on the merits impinges on the speech or debate clause and that that is a burden on Congress which the speech and debate clause was designed to avoid. Now, granted, cases say that in dictum but in every one of those cases, they are cased where there is an attempt to interfere directly with the congressional process. I think also, Your Honor, that there are a couple of other things that I would ask the court to consider in deciding whether the mere obligation to defend against our summary judgment motion in this case is an undue burden on the House. First of all, this case presents only one straightforward legal issue. We have already briefed it and presented out materials to the court. The House has counsel. There are House counsel who are obviously prepared to answer it. It isn't any burden on any individual Congressman, and in addition, in terms of the best resolution in court of this issue, the controversy here is between the Executive and the House. It is certainly more fit for the resolution of this issue that those two bodies are before the court to decide this controversy. In addition, Your Honor, I really can't pass this point without mentioning what seems to me a question of fundamental fairness. The House really wants to pick and choose here. In the United States against AT&T where the United States was suing to enjoin AT&T from producing documents to Congress, the House intervened as a defendant and fully participated in that case and that didn't constitute a burden on the House. In the Senate select committee case which both sides have cited at great length in their briefs, the Senate chose to come to this court to enforce subpoenas and that wasn't a burden on Congress. In a great many cases the House and the Senate remain as defendants or intervene as defendants where the statutes-where the constitutionality of statutes are attacked. Most recently in the FTC legislative veto case which was decided en banc by the court of appeals here, just a few months ago, I had the privilege of arguing that for the United States. Who else argued it? The Senate and the House and they were parties to that case and they didn't argue that that was any burden on them but here all of a sudden it is a horrible burden to respond to one summary judgment motion. Your Honor, I can only say that the obvious reason why that is being asserted is that the House does not want this issue decided. I would submit that that is unfair to the executive branch and it is unfair to the judicial branch and it is unfair to the American public. Your Honor, even if individual Members of Congress cannot be sued in this case, we believe it is at least proper to continue this suit as a suit against the sergeant-at-arms of the House and perhaps other officials. Congressional officials can be sued for conduct which is not essential to legislating and that phrase "not essential to legislating" is from the Powell case which we cited in our brief which decided that exact question. |