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“For any speech or debate in either House, they''which
refers to the Senators or Representatives—“shall not be

questioned in any other place. 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.

In Powell what happened was that Adam Clayton Powell had been excluded by a prior Congress. The court was deciding whether it could decide the propriety of that exclusion.

It decided in effect that it didn't need to pass on the question of whether individual Congressmen could be sued because there were officials of Congress who had done acts obviously at the instructions of the House which were not essential to legislating.

One of the officials had refused to pay Mr. Powell. Another one was ready to block him at the door should he try to enter the House Chambers.

In the Kilbourn case, which Mr. Brand referred to, there the sergeant-at-arms actually arrested and imprisoned the person who was charged with contempt.

Obviously the activity didn't go to the point of arrest or imprisonment.

Congress hasn't done that in 50 years, I don't think, and I doubt if they are going to start again.

The question here is not the importance or the severity of the action of the House officials. The question is whether that action was essential to legislating and our submission that the action here was hardly essential to legislating.

The legislative process has been completed. The subpoena had been fully complied with except for the narrow group of documents withheld on the ground of executive privilege.

Congress' contempt citation had been voted out of the House and at that point, Congress ceased to act and at that point, they certified that contempt citation to the U.S. attorney and triggered the mechanisms of sections 192 and 194 which in turn led us to file this lawsuit.

In that respect, your honor, I believe this case is on all fours with the case of Stamler against Willis that we referred to in the short supplemental memorandum that we filed last Friday.

There the action of Congress was complete. The question was whether the court could issue a declaratory or injunctive relief against criminal action which actually there had been filed during the pendency of the lawsuit and on the narrow

The Court. This is a 1969 case that you did not present until last Friday.

Mr. MCGRATH. Your Honor, the reason we did not was that we did not find it until last Thursday and all I can say in our defense is that by our count here, Mr. Brand referred to 15 cases this morning that he did not cite in his brief. I have not referred to any.

I do believe, Your Honor, that that case is dispositive of the question of whether the officers of the House can be sued because the only actions that any officers of the House had performed in that case were exactly the same as the actions of the House here.

The contempt citation had been referred to the U.S. Attorney, had been certified and referred to the U.S. Attorney for prosecution by the clerk and the sergeant-at-arms of the House.

Thus, I would submit, that although that case is obviously from a different circuit, that its reasoning makes a good deal of sense here together with all the other-

The Court. That is the seventh circuit?

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Mr. MCGRATH. Yes, that is the seventh circuit, yes, Your Honor. It was an opinion by Judge Cummings who is now the chief judge of the seventh circuit.

In conclusion I would like to just make one point which I think is inherent in everything that I have been saying.

President Reagan and Attorney General Smith and Mrs. Gorsuch each took an oath of office to carry out their duties and, of course, that included the duty of faithfully executing the laws and that duty is a sacred obligation of the executive branch.

As the Supreme Court held in Buckley against Valeo, it is not part of the function of the legislative branch.

Indeed, the real concern behind the assertion of executive privilege here is two-fold. One, that turning over sensitive law enforcement documents could hinder prosecution and indeed, could politicize the efforts to achieve effective prosecution and effective resolutions of cases.

The House here by the submission of the contempt to the U.S. attorney has threatened in a very fundamental way the ability of those executive branch officers to carry out their obligations and given that, we had no alternative but to seek the aid of this court in this controversy.

Thus, I would respectfully ask the court to deny the motion to dismiss and to order the House to respond to our summary judgment motion promptly, and I might add that according to the rules, their time to respond to it has expired almost two weeks ago, and they didn't seek any leave not to respond at that point.

Your Honor, the reason that I ask this is that the executive branch urges and sincerely wants as prompt a resolution as is possible of the issue of whether executive privilege was properly asserted here.

Mr. BRAND. May I?

The Court. Yes. Mr. Brand, would you first care to comment on Mr. McGrath's statement that the House does not want this issue decided?

Mr. BRAND. I am not sure that I understand

The COURT. He made the statement that the House does not want this issue decided. Would you care to comment on that?

Mr. BRAND. Yes, Your Honor.

Our position on that is that it will be decided in a court under 2 U.S.C. 192 and that brings me to my first point on rebuttal.

Mr. McGrath says that we would like—we would like-we would prefer to proceed under 2 U.S.C. 192. It's not a matter of preference. It is a matter of statutory authorization.

In the United States v. Tobin which we cited in our opening papers, the courts made supplication to the Congress that they thought the criminal process might be a difficult one in which to litigate issues of inter-sovereign immunity.

The Congress considered that. It never adopted it.

Indeed, when the Watergate Committee recommended that such a statute be put on the books to subject executive officials to civil enforcement, the Department of Justice opposed it and said it would be an unconstitutional delegation of authority to the Congress to litigate such cases under Buckley v. Valeo.

And I refer again to their position in the hearings on that which is in our papers at pages 39 and 40 and so what they oppose then, they're now suggesting should be put in place in the civil enforcement action.

Now, secondly, they say that they are put in a Hobson's choice and that contempt puts a heavy burden, in their words, on the privilege.

They face the same Hobson's choice, I suppose, that every other person who has been subjected to prosecution under 192 faces including, I might add, the defendants who raise weighty and very serious first amendment issues under those cases and indeed, Barenblatt and Watkins cited by the Department are just such cases.

Finally, the point on Helstoski which I must in all—with all respect to Mr. McGrath correct and correct one statement he made as to Helstoski.

That case did not involve speeches on the floor. It involved references to past legislative acts contained in letters sent outside the Congress to the beneficiaries of private bills and the court said that there will be no references and no mentions made of any such past legislative acts.

On Stamler v. Willis, I think, your honor, the reason they didn't find it is that no one cites it any more because it is not good law.

Eastland and Doe impliedly overrule it because in Eastland a chief counsel to the committee was sued and he was held to be within the protection of the immunity to the extent that he performed acts with respect to a subpoena that was part of the legislative process.

And finally, Mr. McGrath cites the case of Consumers Union v. The FTC and states that the Department appeared for the United States and that the House and the Senate joined in as defendants.

First, that case is styled Consumers Union v. FTC. The Department of Justice appeared on behalf of the FTC and not on behalf of the United States.

The House and Senate were named as defendants against their will.

Now, they had no opportunity to move to dismiss in the district court because the matter was rapidly certified up to the court of appeals under a provision in that statute which the Congress passed.

That issue has been preserved in the Supreme Court in the House's jurisdictional statement.

In this case, we have moved to dismiss and so we would suggest that the mere caption shows the distinction and beyond that the House has moved to dismiss in this case.

Thank you.
The Court. Mr. McGrath, do you have anything further?
Mr. MCGRATH. I have nothing further, Your Honor.

The COURT. Well, I will consider this matter further and advise counsel at a later time. It is obviously an interesting and important question.

It has been extremely well presented by both sides. [Whereupon, the hearing was concluded.]

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