Civil Action No. 82-3583

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Washington, D.C., February 1, 1983
The above-entitled matter came on for hearing on a motion to
dismiss before the Honorable John Lewis Smith, Jr., United States
District Judge, at 10:00 a.m.
On behalf of the plaintiffs:

J. Paul McGrath, Esq.
Betsy Grey, Esq.
Lewis Wise, Esq.
Richard Willard, Esq.
Andrew Wolfe, Esq.

Royce C. Lamberth, Esq.
On behalf of the defendants:

Stanley M. Brand, Esq.
Steven R. Ross, Esq.
Michael L. Murray, Esq.
Eugene Gressman, Esq.
L. Kirk O'Donnell, Esq.


The COURT. Good morning.

The DEPUTY CLERK. Civil Action No. 82-3583. The United States of America, et al. v. United States House of Representatives, et al.

Mr. J. Paul McGrath and Mr. Stanley M. Brand.
The Court. We are here this morning on a motion to dismiss?
Mr. BRAND. Yes, your honor.
The Court. You may proceed.

Mr. BRAND. Your honor, may it please the Court, I am Stanley Brand, General Counsel to the Clerk of the House of Representatives.

I am here representing that part of the sovereign comprised of the United States House of Representatives together with Speaker O'Neill, Chairman Howard Levitas and the elected officers of Congress.

21-618 0-83—-50

We are here on our motion to dismiss which we filed on December 30th, 14 days after the Department initiated an unprecedented and we believe ill-founded suit against the House following its citation of Anne M. Gorsuch for contempt.

Never before in our history has the executive sued Congress directly for legislative action and so we might say like Fabian that if this were a play upon a stage now, we could condemn it as improbable fiction, but it is not.

We have been sued and we are here.

Viewed from any perspective we believe this suit must fail. The Department has now responded to our motion to dismiss and they have proffered several reasons why this action can survive.

Let's examine those seriatum and see why this action must be dismissed

The first is statutory subject matter jurisdiction, Federal courts are given jurisdiction pursuant to statute under the power of Congress to define that jurisdiction.

Our position on that is that even if 1331 were read to confer subject matter jurisdiction, that doesn't answer the question of the parties in this action which is provided for by section 1345 which is not a subject matter statute but a statute directed toward who may sue.

The statute gives the sovereign cannot bring suit alone on behalf of the executive, and we rely on that-we rely for that proposition on Clark v. Valeo where the court at 559 F. 2d 647, Note 4, expressly reserved the question of "the propriety of the appearance of the United States not to represent the unified position of all three branches but to argue for a judicial declaration of unconstitutionality of an act of Congress in the interest of the President and the executive branch alone.

Here, we believe, there is a lack of an articulated injury to the Federal Government as a whole comprised of three branches. But even if the Department literally comes within the language of the subject matter statute, 1331 and may sue under 1345, the case violates constitutional principles under article III. We turn to those.

The first of those is standing. Standing is a requirement in every Federal case and emanates from article III itself. It requires injury in fact which is direct and immediate and first, let's look at Miss Gorsuch.

The Department contends that even if Mrs. Gorsuch is never prosecuted for contempt, she is injured in two respects. She has lost effectiveness as an executive official and secondly, her reputation for fidelity to the rule of the law has been impugned.

Now, as to the first, a Government official's loss of effectiveness has never been held to confer standing on any one and in Harrington v. Bush, a case in this circuit, 553, F. 2d 190, a Congressman sued for declaratory and injunctive relief against the secret funding and reporting provisions of law applicable to the CIA.

The court found no standing because the claim that he could not be an effective Congressman without the relief prayed for was subjective and too attentuated to constitute injury. It simply was not a distinct and palpable injury.

The loss of effectiveness is mercurial to begin with. Beyond that, the complaint is utterly devoid of the necessary factual allegations


to support that claim. Indeed, it appears only in the memorandum of points and authorities filed in opposition to the House's motion to dismiss.

And lastly on that point, if accepted, it would spawn limitless suits against the Congress since executive officials are before Congress on almost a daily basis and subjected to very often close and caustic scrutiny, often perhaps with the result that they lose some of their effectiveness with Congress, but that, we think, would open the flood gates to a torrent of lawsuits by chastening bureaucrats who claim to have suffered injury by virtue of the Congress' oversight.

The second claim for damages is that her reputation for fidelity to rule of law has been impugned.

First, she sues only in her official capacity and I think since New York Times v. Sullivan and Rosenblatt v. Behr, it is clear that an ortherwise impersonal attack on Government operations cannot be converted into a libel of the responsible official.

As Justice Stewart said in Behr, concurring: “The constitution does not tolerate actions for libel on Government."

Again, permitting this cause to go forward under that theory would subject Congress to limitless suits by witnesses and executive officials appearing before its committees

We turn now to the standing of the United States. The claimed injury there is “unprecedented interference with responsibility to faithfully execute laws."

And that is said to flow from public dissemination that may occur if these law enforcement files are turned over to Congress.

On three separate occasions this circuit in this Circuit Court of Appeals has held that disclosure to Congress is not, as a matter of law public disclosure.

Exxon v. FTC, Ashland Oil v. FTC and FTC v. Owens Corning.

In Exxon the Court said, 589 F. 2d at 589, note 14, disclosure of trade secrets to Congress is not "public disclosure. Thus disclosure does not in itself injure appellants.'

And secondly, Congress enjoys a legal presumption under those same cases that it will exercise its powers responsibly and with due regard to the rights of affected parties. Ashland Oil, 548 F.2d at 979.

Turning to the other elements of standing, there is a lack of causality between the actions of the House in voting contempt and the claimed injury. There must be an irrestible nexus between the acts alleged and the claimed injury.

There is no cause and effect between the House's vote of contempt and the claimed resulting disruption and uncertainties in the enforcement of EPA statutes and I refer the Court to the case of Winpisinger v. Watson, 628 F.2d 133.

There the support is of a candidate for nomination to the Democratic—the nomination for President sued and alleged that the incumbent had misused his office and public funds to advance himself in the campaign to the detriment of the first and the fifth amendment rights of supporters of Senator Kennedy.

The Court held. "The endless number of diverse facts potentially contributing to the outcome of State Presidential primary elections, caucuses and conventions forecloses any reliable conclusion that

voter support of a candidate is fairly traceable to any particular event.

And declining to accept the very speculative inferences and assumptions upon which that link would be based, the court found no standing.

Finally, redressability. There is nothing a court can do to remedy the harm from the contempt vote to the extent there is harm from the contempt vote.

It is an accomplished and publicly recorded legislative act. As far as threatened action, the Department relies heavily here on threats of impeachment that various Members have made in speeches on the floor of the House, and that is a consequence harm that the Court can do nothing to anitcipatorily redress, if in fact it every comes to pass.

That leads to the second reason why the Department says this case can survive and that is that declaratory relief is an appropriate way to proceed because the criminal contempt statute is unseemly.

The Department concedes no less than eight different times that it seeks a departure from the usual rule. It says that the suit should be permitted though because 192—the invocation of 192 against an executive official is unseemly and it relies on the United States v. Nixon.

Two facts readily distinguish Nixon from this case. First, the unique setting in that case involved the President himself and records in his personal custody and control. They did not involve a sub-cabinet subordinate.

Secondly, the rule itself established in Nixon related only to an exception-creation of an exception to the court-made rule on finality necessary to appeal from a district court the denial of the President's motion to quash.

The President's status induced the Court to make an exception to the final order rule and not to overcome constitutional barriers.

On this point, your honor, I would refer the Court to in re Attorney General, 596 F.2d 58 at 62, a second circuit case which I think stands for the proposition that the Attorney General himself is not within the Nixon finality exception.

Finally, the Department claims that this is an extraordinary remedy which is unnecessary because of the unprecedented citation of a high executive branch official. This is not unprecedented, your honor.

The Department itself has used 192 against higher ranking executive officials than we have here and I refer specifically to the United States v. Helms, criminal No. 77-650 where the CIA Director was charged and plead guilty to the same statute at issue here despite the absence of a certification from the Congress, and then Assistant Attorney General Civiletti stated, “That Mr. Helms' plea showed that despite feelings or reasons the law and the policy of the Government bars untrue, inaccurate or incomplete testimony before the Congress.

Attorney General Bell stated his belief that the plea bargain under section 192 appropriately put the intelligence community on notice that it was “subject to the rule of law” and in the United States v. Kleindienst, Criminal No. 74-256, it was used again by the

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