Case number 14, Ash 5012, Charles B. Rangel, Apollent, versus John A. Banner, at L. Mr. Goldberg for the Apollent, Mr. Rosenberg for the Apollees. Good morning, Your Honours. There's Jay Goldberg for the Apollent. That's not the courtroom clear first. Okay, Mr. Goldberg, good morning. Good morning, Your Honours. And thank you for a granting or all argument in this case. If you favor me by looking at the appendix at 168, in the case that the decision that the committee rendered in Rangel's case was dependent upon outside counsel Billy Martin's analysis, and that's what 168 says. Billy Martin was never ever tasked with performing any function whatsoever with respect to Congressmen in Rangel
. He was engaged by the committee. He was tasked with the undertaking of weather at the investigative stage, which is comparable to the grand jury. And he says the best way to analyze this case is in terms of criminal trials. Congresswoman Waters-Madam was before the investigative committee. That's the grand jury. And the question was whether there was an expotty communication by counsel, and he analyzed, and I don't think I agree with him, that under rule 19, there can be expotty communication with members of the grand jury that we can hog. Mr. Goldberg, let me ask you something, it's very basic here. What is the specific injury that you are alleging? The specific injury you're alleging? What is it? Well, the loss of property rights. What's the property interest here? Well, as the Court since Goldberg against Kelly has announced it's not in terms of real property, it's the loss of expectation of a promise granted by the and promised to the grief party of some benefit. And what is the benefit here? Well, he was promised that if the proceeding took place, it would be inducted fairly, impartially, and according to principles consistent with your process. Yes, but there has to be more than process, right? You cite the Supreme Court's case, Town of Castle Rock. But Town of Castle Rock stands for the point proposition that an entitlement to nothing but procedure is not enough to be a cognizable constitutional individual. So how do you- I'm sorry
. What is there that you're alleging beyond an injury to an expectation of a procedure? Well, the result is punishment. In other words, if the expectation and the procedures are not followed, he is dealt with in terms of punishment. But that is not the analysis the Court has told us to undertake. We are supposed to always look in the first place at the nature of the injury, the nature of the harm. Now, you did allege a property interest below. You allege a reputation of interest, but you haven't raised that here. You don't- I don't make any claim with respect to reputation. I claim that- So you claim that there's a property interest here in expectation of a procedure? A fair procedure. May by the forward to the rules. May by Congresswoman who was chairman of the committee, Ms. Lauffren, and by Congressman McCall. Now, please understand that Mr. Lawton's report says you analyze this as I told you in terms of a criminal case. The investigative committee is the grand jury
. The adjudicatorate subcommittee is the trial committee. The investigative subcommittee says there can be ex-party communications. In the adjudicatorate subcommittee, if you look at 77-78, Congressman McCall says that when we act in this capacity as members of the adjudicatorate subcommittee, we act as judges as judges. He says it several times. And the question there is that acting as judges, can they be subjected to the kind of ex-party communications that Mr. Chisholm, who has chief counseled to the committee, outlines in his letter at page 44. It takes him a number of pages, and he says this is not even the complete story. This is just some examples, and notice that it's un-dated, and I'll get to that in a moment. But I'm sorry. Yes, I have some questions. Normally, when we have a member of Congress before us, they typically are invoking the protection of the immunity of the speech or debate clause, but here you're arguing that it doesn't apply. Can you help me understand why? Yes, I will. Okay. Species and debate clause, Bruce Holes, is meant to preserve the integrity of the legislative investigative function
. Here, everybody, the language of the clause speaks of speech or debate in either house. How is it that the proceedings of the ethics committee is not speech in the House of Representative? Could you answer that for me? I'm just looking at the language of the clause. No, I can't answer that. I can only answer it on the basis of what the Supreme Court has said. It says that anything that a Congresswoman or Congresswoman says consistent with the dignity of the legislative or investigative process is protected. Otherwise, they become super citizens. And that's clearly in Bruce. Now, you can't read what occurred in this case. Let me read to you what the Supreme Court said in Gervell. Insofar as the clause is construed to each other matters, they must be an integral part of the deliberative and communicative processes by which members participate in committee and house proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either house. Is this a matter that is placed within the jurisdiction of either house? It is, but you judge what the member is. It is. And so it fits within that understanding of Gervell. And it's part of an integral part of the deliberative and communicative processes, isn't it? Or is that where you? Is that not the clause? That is not the clause
. That deliberative process. How so? Help me understand that. Well, they ruled at lodge gathering information that was not consistent with their role as members of the investigative committee. They are not. And it is the same, can you be more specific about what you mean they roamed at large in a way that wasn't consistent with the role? So, is it getting information? Congressman McCall sent his chief of staff to meet with the Deputy Chief Morgan Kim to discuss the facts of this case. Is that not something they are permitted to do? What is that? Is that not something that is not a form of speech within the house? No, because the decision has to remain in the jurisdiction of the House. And the decision has to remain on the basis of the evidence that is presented in the courtroom in the Injury Gatoran hearing room. Congresswoman Lawford makes that clear. The violations that elicit here in McCall's letter. How are we to determine if the speech that you are describing fits within this notion of integrity and deliberative? That's very simple. If you are a judge and assume that these people are judges, as they say, they are, does a judge see people on the next party basis? Is that legitimate judicial function? So, if we were to determine that a member of Congress does something on the floor of the House in a speech that isn't consistent with principles of deliberation and integrity, that speech could be called into question? No, I think we are dealing with a committee. And that's a group of eight people who have committed themselves. Is there a distinction into the law between something that committee does and what occurs on the floor of the House? Well, I think so. There is no warrant in law for this
. There is no distinction. There is no distinction. There is no argument with the specific function. Right. And they are to act as judges. And the question is, and if they don't, then they lose the protection of the- Well, yes, if they make mistakes, they lose the protection of the- Because as a Supreme Court has said, that they can check on the implementation of the rules to see whether a person's constitutional rights are protected. And the judge himself, at page 24, has opinion, says that while the House can make rules, courts have a function to determine whether they were implementation of the rules, is consistent with due process or- And whether a person, a congressman, has received a protection of his constitutional rights. Now, I ask you as judges. So is your position, make sure I understand- Is your position just with respect to this particular ethics subcommittee and the role that the Quasage-Oditional role that it performs, or would your argument apply to the operations of every committee? The operations of the one. So is your argument limited to the operations of the ethics committee because it has this unique role, or is it- Would your argument apply to every committee? Well, I forgive me. I don't want to answer every committee. I focused my attention on the ethics committee which has the highest standard of standing committee, and its ethical obligations are great importance to see that the ethics committee itself is acting in a way inconsistent with how a judge would act, gives me pause for concern and gives the committee counsel pause for concern because he says that he was considering moving to dismiss the action because there was so much expartee unauthorized submission of incorrect as well as information that was not supported by the record to the Republican members and he at least three times points out how dangerous this is to the functioning of the system also he says and this is parent disturbing he's looking for a motive for their behavior and he says he can't put his finger on it but he believes it's very simple and he gives two references and says there's more for the story but you only have part of the story though that memorandum be like eight or nine pages it has a statement in there that this is not the complete story and please as I conclude recall that what I said and you can call upon my opposition if you sub-choose Billy Martin never touched the subject that we're talking about he only touched on the subject of the grand jury with representative waters when I asked him when he expanded he said no and so the reference that they're going to decide the case on the basis of Billy Martin is absolutely ridiculous and your honors if what you say is so then the whole principle that judges himself acknowledges that courts have a role to play in determining whether a committee has violated an individual's constitutional rights would be meaningless if you carried your argument to the extreme we never get to the point where courts can you can you point me to instances where courts have in fact done that have come to vindicate the claim of someone who says they were mistreated by a committee. He says the judge himself gives you the cases and I give you the cases and judge courts. What remind me of what? What's that? Remind me of order to the court
. All right. Baker against courts I'll read that to you that's an opinion of Judge Ginter when she sat in this court and Ballon against the United States before your time was 1894 is a consistent line of cases if you're looking at the judges' opinion you'll see he gives you the cases in the middle of his opinion he gives you a number of cases with courts have undertaken not to disturb the rules but they have the right and the classic word is implementation has the implementation of the rules offended someone's constitutional rights that's Baker against courts and that's Ballon against the United States 1894 and in this case it's not conceivable that the defendant's constitutional rights were observed when the judges only had the judges the Republicans were only had were given material questions or a frame that how they present the case notice how they use of the phrase the nuclear eruption. This go over your beyond your time we'll give you a couple minutes to reply. Thank you. All right and I understand you have a back problem and are going to remain standing which is fine. Yes, I'll see. All right Mr. Rosenberg. Morning Your Honours and may please report Isaac Rosenberg for the defendant or pardon the affilees. Enjoying me at council tables carry a curfew general counsel for the House. You. Thanks. Yeah. Congressman Rangel invited Judge Bates below and invites this court here to do something extraordinary unprecedented and ultimately unconstitutional effectively to undo his censure by the House of Representatives of the 111th Congress
. Judge Bates correctly rejected that imputation on three independent and independently dispositive grounds, speech or debate, political question and standing. I'm going to focus on speech or debate briefly and respond to a couple of points that opposing counsel has raised. The first thing I want to make sure the court understands is irrespective of what the purpose of the speech or debate clause is the purpose is not co extensive with the standard that the privilege is measured against. It's absolute when it applies. There's been no dispute at that. It applies to members and their aides and those all the athletes in this case are either members or their staffers or the clerk solely for relief purposes. But importantly, the privilege protects acts that are integral and integral part of performing the House's business including as Dr. Griffith noted, a discipline of members and the contents of the House's journal. It seems as though before this court, Congress and Rangel's case changes on this notion that a claim of an unworthy purpose is enough to render the privilege in valid. That's simply not true and that would violate a long standing line of Supreme Court cases and president in this circuit. So unless the panel has any other questions. Yes, no, I do. So would you respond to Mr. Goldberg's point that there's a role for the courts when a committee of Congress trenches upon someone's constitutional rights? Committee of Congress brings somebody before them to investigate for whatever reason and they violate the person's constitutional rights
. Do we have no role to police that? Critical to answering that question is who is suing whom and for what? And in the cases cited by Congressman Rangel and identified by Judge Bates below, those cases did not involve cases against members of Congress for their acts. They involved people outside of the House facing consequences for actions they took before the House and they decided in those cases, criminal cases, the courts looked to see whether the House complied with its own rules. But of course here, the suit is brought against, by one member against other members of Congress and their staffers. Well, the suggestion is that Congress, the courts will intervene when a committee of Congress is treating a private citizen chavily that has no role to intervene when treating one of its own members chavily. Is that what the law teaches us? I would write the Court's attention to Powell versus McCormick as an example. Powell was a member who was excluded from the House and claimed that the House did not have the power to exclude him and he brought an action against not only members of Congress, but also officers of the House. And the Supreme Court in that case allowed the case to go forward against the officers and not against the members irrespective of allegations of unconstitutional conduct by the members. The same issue here. So what if the ethics committee had decided that this is completely hypothetical? I'm not suggesting it's true at all in actuality. But what if it were a different time in our country and every time an African-American member was elected to Congress, the ethics committee voted to have that person either censured or expelled? It was all on racial grounds. Would there be any role this no outside people all inside? Would there be any role for judicial review? Again, you're on the answer to that question. Hangers on who is suing whom and for what? Okay, the expelled member is suing the ethics committee and its members for the expulsion. To answer that question, I want to address a particularly important factual notion. The way that the committee functions is it investigates allegations of all the evidence
. No, I'm asking a hypothetical little question about our ability to review. It doesn't really turn on how a committee is structured now. In my universe, it is a certain time in this country when racism was rampant and on Majaris, let's assume, and again it's hypothetical, I'm not suggesting that this ever actually happened, that a majority of the House or Senate didn't want any African-American members. And so use this process to expel them. Invoking its power under the clause to expel members upon a two-thirds vote. It's a great court precedent from East London including Brewster. Alligations and improper motives simply off limits for the judiciary when you have a suit against members. The answer is no, there's absolutely nothing a court could do in that sentence. The court could not pardon me. The members who were sued would be in type of community on the speech of debate clause irrespective of allegations of an improper motive. Nothing, nothing at all it could be done then. In a suit by a member against other members of letting an improper motive work matters that are within the jurisdiction of House under the Constitution, those members would be entitled to the immunity of the speech of debate clause. And what about the interests of the people who elected those representatives and actually having their representatives seat it as in the House? If there are constituents who were agreed by that determination and there are some one that proper defend to whom they could sue to seek relief. That's what I'm asking you. So the member and other constituents wanted to sue whom would they sue to stop if they're actually were to be established or around the problem of race discrimination, gender discrimination, you name it, religious discrimination to expel or to censure. We're just going to humiliate on a regular basis, members based on a constitutionally protected status. If there was an officer of the House who was given the charge of enforcing it, the members themselves would be absolutely immune. Whether other people could be sued, if it were proven that the action of the House was unconstitutional, I would refer the Court to Palvara's McCormick. And then Chisholm Kim and Sobran were not members of the staff. They were subcommittee staff. They were committee staff. They were committee staff. They were committee staff. So were they anybody's alter ego? Whose alter ego would they be for purposes of the speech of debate clause if they were committee staff? The committee staff on the ethics committee are professional staff that serve all the members of the committee irrespective of party affiliation. So if you have the judges, you'll have law clerks or staff attorneys for the court. Staff attorneys don't serve just a single judge on the court. They serve the entire court. So they serve all the members of the committee
. So the member and other constituents wanted to sue whom would they sue to stop if they're actually were to be established or around the problem of race discrimination, gender discrimination, you name it, religious discrimination to expel or to censure. We're just going to humiliate on a regular basis, members based on a constitutionally protected status. If there was an officer of the House who was given the charge of enforcing it, the members themselves would be absolutely immune. Whether other people could be sued, if it were proven that the action of the House was unconstitutional, I would refer the Court to Palvara's McCormick. And then Chisholm Kim and Sobran were not members of the staff. They were subcommittee staff. They were committee staff. They were committee staff. They were committee staff. So were they anybody's alter ego? Whose alter ego would they be for purposes of the speech of debate clause if they were committee staff? The committee staff on the ethics committee are professional staff that serve all the members of the committee irrespective of party affiliation. So if you have the judges, you'll have law clerks or staff attorneys for the court. Staff attorneys don't serve just a single judge on the court. They serve the entire court. So they serve all the members of the committee. The speech of debate immunity doesn't apply to Congress as an institution. It applies to individual members and their staff. And so I'm trying to understand. Did the members of the committee vote here adopt a resolution? Has happened, I think, in the gravel over the council. Where the council was being sued. Something to take their immunity and say we wish to share it with this person because we were, we endorsed them as having worked for us in this context. I don't think that there's a requirement that they do so explicitly. But nothing happened like that. The members of the staff are chosen by majority of the vote of the committee. And just like the committee itself, the members of the committee are entitled to the speech of debate privilege. When the staff are performing functions that are within the jurisdiction of the committee, they are entitled to speech of debate. It hasn't been the determination of the House of Representatives to provide them a defense. In this case, you're on the staff app, please, the staff app, please, have their own council here. Have their own council
. The speech of debate immunity doesn't apply to Congress as an institution. It applies to individual members and their staff. And so I'm trying to understand. Did the members of the committee vote here adopt a resolution? Has happened, I think, in the gravel over the council. Where the council was being sued. Something to take their immunity and say we wish to share it with this person because we were, we endorsed them as having worked for us in this context. I don't think that there's a requirement that they do so explicitly. But nothing happened like that. The members of the staff are chosen by majority of the vote of the committee. And just like the committee itself, the members of the committee are entitled to the speech of debate privilege. When the staff are performing functions that are within the jurisdiction of the committee, they are entitled to speech of debate. It hasn't been the determination of the House of Representatives to provide them a defense. In this case, you're on the staff app, please, the staff app, please, have their own council here. Have their own council. So the House hasn't decided to defend it. I'm just trying to figure out why is that? Yeah, why is that? If they're, if they, in fact, the alter ego of members who've been sued, why, why doesn't the House provide them? There are a number of reasons why defendants in the case might not have the same council. But just because an individual who's a staff or former staff or the House doesn't have the benefit of House Council representative doesn't mean that they can't assert the privilege of that. I'm really kind of confused because from how we know that institutional employees of the Congress, or of the House, or of the Senate, like the clerk or Sergeant at Arms, don't get this immunity. And individual members and their individual aids do get them immediately. At least if the member wishes to give it to their aid, the member has, it's like it's like it's like a 25-perlits. The member controls this privilege. And at least in most of the cases I've seen, there's been something when it comes to committee staff who are institutional employees, not member employees. Does there need to be some indication, either a vote of the members of the committee, to say that we are giving our immunity to them? How does it transfer from individual member to these institutional employees? Your Honor, when the committee conducts its business, and that business is one of those matters entrusted to it by the Constitution, we are in very much within that legitimate sphere. You're just saying the clerk or the clerk of the Congress writing down the votes, right? That would be the exact same thing. I'm trying to understand how their institutional role is different than what happened in Powell. Well, importantly in Powell, what was that issue was kind of going forward rather than retrospective? But that doesn't change the nature of the speech or debate immunity is a member-held immunity. It's not an institutional immunity. There might be separation of powers, concerns, that would create immunities in certain contexts
. So the House hasn't decided to defend it. I'm just trying to figure out why is that? Yeah, why is that? If they're, if they, in fact, the alter ego of members who've been sued, why, why doesn't the House provide them? There are a number of reasons why defendants in the case might not have the same council. But just because an individual who's a staff or former staff or the House doesn't have the benefit of House Council representative doesn't mean that they can't assert the privilege of that. I'm really kind of confused because from how we know that institutional employees of the Congress, or of the House, or of the Senate, like the clerk or Sergeant at Arms, don't get this immunity. And individual members and their individual aids do get them immediately. At least if the member wishes to give it to their aid, the member has, it's like it's like it's like a 25-perlits. The member controls this privilege. And at least in most of the cases I've seen, there's been something when it comes to committee staff who are institutional employees, not member employees. Does there need to be some indication, either a vote of the members of the committee, to say that we are giving our immunity to them? How does it transfer from individual member to these institutional employees? Your Honor, when the committee conducts its business, and that business is one of those matters entrusted to it by the Constitution, we are in very much within that legitimate sphere. You're just saying the clerk or the clerk of the Congress writing down the votes, right? That would be the exact same thing. I'm trying to understand how their institutional role is different than what happened in Powell. Well, importantly in Powell, what was that issue was kind of going forward rather than retrospective? But that doesn't change the nature of the speech or debate immunity is a member-held immunity. It's not an institutional immunity. There might be separation of powers, concerns, that would create immunities in certain contexts. But speech or debate is an individual member immunity. And the President has said they can give it or take it away from their individual aids. But we have this distinction that you seem to be pointing out and thought was important between individual members, their individual staff, and institutional employees. And committees, that sounds to me like an institutional employee. The House conducts its business through its members and through its committees, and the members show the committees. And if your honors have- My committees aren't some free acting entity, they are a mechanism through which members act and make decisions. They don't have a life of their own, do they? You're correct that the committees conduct their business through their members. And if the conducted issue here that the staffers are able to engage in would be privileged if the members themselves reformed it, then those activities are also privileged, just as if they were performed by the member. Well, then so if the clerk of the Congress or something, the clerk of the House or Senate did something that a member could do, could a member record votes? Could a member have done what was the actions that were challenged in Powell versus McCormick? Yes, a member could have done that. So the fact that a member could do it doesn't tell us if she seems to be an institutional versus individual line in the case of President. Okay, a fact question. Chisholm, Kim and Sovereign, are any of them still even employed by the House? No, you're right. Or by Congress and any capacity? No, none of them works for the House and the other. Okay
. But speech or debate is an individual member immunity. And the President has said they can give it or take it away from their individual aids. But we have this distinction that you seem to be pointing out and thought was important between individual members, their individual staff, and institutional employees. And committees, that sounds to me like an institutional employee. The House conducts its business through its members and through its committees, and the members show the committees. And if your honors have- My committees aren't some free acting entity, they are a mechanism through which members act and make decisions. They don't have a life of their own, do they? You're correct that the committees conduct their business through their members. And if the conducted issue here that the staffers are able to engage in would be privileged if the members themselves reformed it, then those activities are also privileged, just as if they were performed by the member. Well, then so if the clerk of the Congress or something, the clerk of the House or Senate did something that a member could do, could a member record votes? Could a member have done what was the actions that were challenged in Powell versus McCormick? Yes, a member could have done that. So the fact that a member could do it doesn't tell us if she seems to be an institutional versus individual line in the case of President. Okay, a fact question. Chisholm, Kim and Sovereign, are any of them still even employed by the House? No, you're right. Or by Congress and any capacity? No, none of them works for the House and the other. Okay. Do you have any more questions after that? All right. Thank you. Thank you. Does Mr. Goldberg have any time? Yes. Yes. I wanted to quote the wrong decision in 23 of a brief. It sets forth the authority of course to deal with the key words implementation of the rules as to whether they need constitutional stand. But don't all those cases involve private citizens, none of them involves a member of the institution who's bringing a claim that he or she has been treated poorly. The cases you're citing don't involve a member of Congress who's bringing. No, we don't have any. That's right. That's right. I just have a role as the leader by these cases and recognized by the Court below
. Do you have any more questions after that? All right. Thank you. Thank you. Does Mr. Goldberg have any time? Yes. Yes. I wanted to quote the wrong decision in 23 of a brief. It sets forth the authority of course to deal with the key words implementation of the rules as to whether they need constitutional stand. But don't all those cases involve private citizens, none of them involves a member of the institution who's bringing a claim that he or she has been treated poorly. The cases you're citing don't involve a member of Congress who's bringing. No, we don't have any. That's right. That's right. I just have a role as the leader by these cases and recognized by the Court below. Iraners, there were eight judges. Four were approached by the serial errand members of Mr. Chisholm Step and they were furnished with material that wasn't available to other members. Silence? Showing consciousness of guilt. The members didn't disclose it to the Democratic members. And on that basis, let's imagine we were having an impeachment proceeding against a federal judge or the President of the United States. And there was some of these sort of shenanigans that you're talking about right now, ex-partate communications with senators, things of this nature. Would the defendant in the impeachment proceeding have the ability to come to federal court to preserve his or her constitutional rights to be treated fairly that proceeding? So the impeachment of judges can't come to court. But with respect to why is that the case? I don't know because I have a one section and I think six says that impeachment of judges is so lethal that. Right. And as Chief Justice Warren says, barring that, you can always come to court and in power, he came to court and he claimed that Congress had violated his law. So impeachment is a classic political question because it's been testually committed to this. But if the discipline and discipline its own members is not? No, no. Why is it not paid? Why? Okay
. Iraners, there were eight judges. Four were approached by the serial errand members of Mr. Chisholm Step and they were furnished with material that wasn't available to other members. Silence? Showing consciousness of guilt. The members didn't disclose it to the Democratic members. And on that basis, let's imagine we were having an impeachment proceeding against a federal judge or the President of the United States. And there was some of these sort of shenanigans that you're talking about right now, ex-partate communications with senators, things of this nature. Would the defendant in the impeachment proceeding have the ability to come to federal court to preserve his or her constitutional rights to be treated fairly that proceeding? So the impeachment of judges can't come to court. But with respect to why is that the case? I don't know because I have a one section and I think six says that impeachment of judges is so lethal that. Right. And as Chief Justice Warren says, barring that, you can always come to court and in power, he came to court and he claimed that Congress had violated his law. So impeachment is a classic political question because it's been testually committed to this. But if the discipline and discipline its own members is not? No, no. Why is it not paid? Why? Okay. Justice Warren, who pointed out that I have a one section, I think it's really, says that impeachment of a judge is so responsibility of the House. Whereas other men such as this is for the court to decide. Of course, there's nothing that would- But they've never said disciplining a member is something for a court to decide. That's right. He said, however, he said that a case where a congressman claimed that his rights were violated and of course stepped in to assist him. That's the case is an eye for honor where a member of Congress invoked his right to hold position. And the court didn't say, well, that's for the House to decide. The Supreme Court decided that Powell's rights were averaged as constitutional rights were enriched and they stepped in. They didn't say it's a political controversy or it's a matter of relegated solely to the House as to whether he should say it. It cannot be that where you had a judge for a loaded up with material, some of which Chisholm says is unsupported and incorrect. And we his memo, which was recently discussed after the House Secretary of the Engine and see how concerned he is about what has occurred. Let me quickly do this. Judge Bates says these are procedural irregularities. These are not procedural irregularities
. Justice Warren, who pointed out that I have a one section, I think it's really, says that impeachment of a judge is so responsibility of the House. Whereas other men such as this is for the court to decide. Of course, there's nothing that would- But they've never said disciplining a member is something for a court to decide. That's right. He said, however, he said that a case where a congressman claimed that his rights were violated and of course stepped in to assist him. That's the case is an eye for honor where a member of Congress invoked his right to hold position. And the court didn't say, well, that's for the House to decide. The Supreme Court decided that Powell's rights were averaged as constitutional rights were enriched and they stepped in. They didn't say it's a political controversy or it's a matter of relegated solely to the House as to whether he should say it. It cannot be that where you had a judge for a loaded up with material, some of which Chisholm says is unsupported and incorrect. And we his memo, which was recently discussed after the House Secretary of the Engine and see how concerned he is about what has occurred. Let me quickly do this. Judge Bates says these are procedural irregularities. These are not procedural irregularities. These are of constitutional magnitude, the right of confrontation for examination. And my motion was made within a few days of the discovery of the document that Mr. Chisholm sends out. This is not a case where it doesn't rise to an element of constitutional magnitude. This is a case where it's at a decision to begin at 11 procedural irregularities. That's ridiculous. Now let me say this to your eyes. On two occasions I sent in a request for oral ocularity. It had been granted the same might as well as straightened out. It was as though it was sent to another chain. There was no discussion, no exercise of discretion, heard nothing from the judge and even denied the motion. If I had changed it at oral ocularity, it was too request. I might have pointed out it, although I don't think it just really eased it, that if the panel of judges in the city is not appropriate and it derives to issues of constitutional magnitude to submit to half of the panel material, engage in ex-party conversations with them. Look at the risk
. These are of constitutional magnitude, the right of confrontation for examination. And my motion was made within a few days of the discovery of the document that Mr. Chisholm sends out. This is not a case where it doesn't rise to an element of constitutional magnitude. This is a case where it's at a decision to begin at 11 procedural irregularities. That's ridiculous. Now let me say this to your eyes. On two occasions I sent in a request for oral ocularity. It had been granted the same might as well as straightened out. It was as though it was sent to another chain. There was no discussion, no exercise of discretion, heard nothing from the judge and even denied the motion. If I had changed it at oral ocularity, it was too request. I might have pointed out it, although I don't think it just really eased it, that if the panel of judges in the city is not appropriate and it derives to issues of constitutional magnitude to submit to half of the panel material, engage in ex-party conversations with them. Look at the risk. All right, Mr. Gover here repeating yourself. You know what? I appreciate your patience. All right. Thank you. Thank you.
Case number 14, Ash 5012, Charles B. Rangel, Apollent, versus John A. Banner, at L. Mr. Goldberg for the Apollent, Mr. Rosenberg for the Apollees. Good morning, Your Honours. There's Jay Goldberg for the Apollent. That's not the courtroom clear first. Okay, Mr. Goldberg, good morning. Good morning, Your Honours. And thank you for a granting or all argument in this case. If you favor me by looking at the appendix at 168, in the case that the decision that the committee rendered in Rangel's case was dependent upon outside counsel Billy Martin's analysis, and that's what 168 says. Billy Martin was never ever tasked with performing any function whatsoever with respect to Congressmen in Rangel. He was engaged by the committee. He was tasked with the undertaking of weather at the investigative stage, which is comparable to the grand jury. And he says the best way to analyze this case is in terms of criminal trials. Congresswoman Waters-Madam was before the investigative committee. That's the grand jury. And the question was whether there was an expotty communication by counsel, and he analyzed, and I don't think I agree with him, that under rule 19, there can be expotty communication with members of the grand jury that we can hog. Mr. Goldberg, let me ask you something, it's very basic here. What is the specific injury that you are alleging? The specific injury you're alleging? What is it? Well, the loss of property rights. What's the property interest here? Well, as the Court since Goldberg against Kelly has announced it's not in terms of real property, it's the loss of expectation of a promise granted by the and promised to the grief party of some benefit. And what is the benefit here? Well, he was promised that if the proceeding took place, it would be inducted fairly, impartially, and according to principles consistent with your process. Yes, but there has to be more than process, right? You cite the Supreme Court's case, Town of Castle Rock. But Town of Castle Rock stands for the point proposition that an entitlement to nothing but procedure is not enough to be a cognizable constitutional individual. So how do you- I'm sorry. What is there that you're alleging beyond an injury to an expectation of a procedure? Well, the result is punishment. In other words, if the expectation and the procedures are not followed, he is dealt with in terms of punishment. But that is not the analysis the Court has told us to undertake. We are supposed to always look in the first place at the nature of the injury, the nature of the harm. Now, you did allege a property interest below. You allege a reputation of interest, but you haven't raised that here. You don't- I don't make any claim with respect to reputation. I claim that- So you claim that there's a property interest here in expectation of a procedure? A fair procedure. May by the forward to the rules. May by Congresswoman who was chairman of the committee, Ms. Lauffren, and by Congressman McCall. Now, please understand that Mr. Lawton's report says you analyze this as I told you in terms of a criminal case. The investigative committee is the grand jury. The adjudicatorate subcommittee is the trial committee. The investigative subcommittee says there can be ex-party communications. In the adjudicatorate subcommittee, if you look at 77-78, Congressman McCall says that when we act in this capacity as members of the adjudicatorate subcommittee, we act as judges as judges. He says it several times. And the question there is that acting as judges, can they be subjected to the kind of ex-party communications that Mr. Chisholm, who has chief counseled to the committee, outlines in his letter at page 44. It takes him a number of pages, and he says this is not even the complete story. This is just some examples, and notice that it's un-dated, and I'll get to that in a moment. But I'm sorry. Yes, I have some questions. Normally, when we have a member of Congress before us, they typically are invoking the protection of the immunity of the speech or debate clause, but here you're arguing that it doesn't apply. Can you help me understand why? Yes, I will. Okay. Species and debate clause, Bruce Holes, is meant to preserve the integrity of the legislative investigative function. Here, everybody, the language of the clause speaks of speech or debate in either house. How is it that the proceedings of the ethics committee is not speech in the House of Representative? Could you answer that for me? I'm just looking at the language of the clause. No, I can't answer that. I can only answer it on the basis of what the Supreme Court has said. It says that anything that a Congresswoman or Congresswoman says consistent with the dignity of the legislative or investigative process is protected. Otherwise, they become super citizens. And that's clearly in Bruce. Now, you can't read what occurred in this case. Let me read to you what the Supreme Court said in Gervell. Insofar as the clause is construed to each other matters, they must be an integral part of the deliberative and communicative processes by which members participate in committee and house proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either house. Is this a matter that is placed within the jurisdiction of either house? It is, but you judge what the member is. It is. And so it fits within that understanding of Gervell. And it's part of an integral part of the deliberative and communicative processes, isn't it? Or is that where you? Is that not the clause? That is not the clause. That deliberative process. How so? Help me understand that. Well, they ruled at lodge gathering information that was not consistent with their role as members of the investigative committee. They are not. And it is the same, can you be more specific about what you mean they roamed at large in a way that wasn't consistent with the role? So, is it getting information? Congressman McCall sent his chief of staff to meet with the Deputy Chief Morgan Kim to discuss the facts of this case. Is that not something they are permitted to do? What is that? Is that not something that is not a form of speech within the house? No, because the decision has to remain in the jurisdiction of the House. And the decision has to remain on the basis of the evidence that is presented in the courtroom in the Injury Gatoran hearing room. Congresswoman Lawford makes that clear. The violations that elicit here in McCall's letter. How are we to determine if the speech that you are describing fits within this notion of integrity and deliberative? That's very simple. If you are a judge and assume that these people are judges, as they say, they are, does a judge see people on the next party basis? Is that legitimate judicial function? So, if we were to determine that a member of Congress does something on the floor of the House in a speech that isn't consistent with principles of deliberation and integrity, that speech could be called into question? No, I think we are dealing with a committee. And that's a group of eight people who have committed themselves. Is there a distinction into the law between something that committee does and what occurs on the floor of the House? Well, I think so. There is no warrant in law for this. There is no distinction. There is no distinction. There is no argument with the specific function. Right. And they are to act as judges. And the question is, and if they don't, then they lose the protection of the- Well, yes, if they make mistakes, they lose the protection of the- Because as a Supreme Court has said, that they can check on the implementation of the rules to see whether a person's constitutional rights are protected. And the judge himself, at page 24, has opinion, says that while the House can make rules, courts have a function to determine whether they were implementation of the rules, is consistent with due process or- And whether a person, a congressman, has received a protection of his constitutional rights. Now, I ask you as judges. So is your position, make sure I understand- Is your position just with respect to this particular ethics subcommittee and the role that the Quasage-Oditional role that it performs, or would your argument apply to the operations of every committee? The operations of the one. So is your argument limited to the operations of the ethics committee because it has this unique role, or is it- Would your argument apply to every committee? Well, I forgive me. I don't want to answer every committee. I focused my attention on the ethics committee which has the highest standard of standing committee, and its ethical obligations are great importance to see that the ethics committee itself is acting in a way inconsistent with how a judge would act, gives me pause for concern and gives the committee counsel pause for concern because he says that he was considering moving to dismiss the action because there was so much expartee unauthorized submission of incorrect as well as information that was not supported by the record to the Republican members and he at least three times points out how dangerous this is to the functioning of the system also he says and this is parent disturbing he's looking for a motive for their behavior and he says he can't put his finger on it but he believes it's very simple and he gives two references and says there's more for the story but you only have part of the story though that memorandum be like eight or nine pages it has a statement in there that this is not the complete story and please as I conclude recall that what I said and you can call upon my opposition if you sub-choose Billy Martin never touched the subject that we're talking about he only touched on the subject of the grand jury with representative waters when I asked him when he expanded he said no and so the reference that they're going to decide the case on the basis of Billy Martin is absolutely ridiculous and your honors if what you say is so then the whole principle that judges himself acknowledges that courts have a role to play in determining whether a committee has violated an individual's constitutional rights would be meaningless if you carried your argument to the extreme we never get to the point where courts can you can you point me to instances where courts have in fact done that have come to vindicate the claim of someone who says they were mistreated by a committee. He says the judge himself gives you the cases and I give you the cases and judge courts. What remind me of what? What's that? Remind me of order to the court. All right. Baker against courts I'll read that to you that's an opinion of Judge Ginter when she sat in this court and Ballon against the United States before your time was 1894 is a consistent line of cases if you're looking at the judges' opinion you'll see he gives you the cases in the middle of his opinion he gives you a number of cases with courts have undertaken not to disturb the rules but they have the right and the classic word is implementation has the implementation of the rules offended someone's constitutional rights that's Baker against courts and that's Ballon against the United States 1894 and in this case it's not conceivable that the defendant's constitutional rights were observed when the judges only had the judges the Republicans were only had were given material questions or a frame that how they present the case notice how they use of the phrase the nuclear eruption. This go over your beyond your time we'll give you a couple minutes to reply. Thank you. All right and I understand you have a back problem and are going to remain standing which is fine. Yes, I'll see. All right Mr. Rosenberg. Morning Your Honours and may please report Isaac Rosenberg for the defendant or pardon the affilees. Enjoying me at council tables carry a curfew general counsel for the House. You. Thanks. Yeah. Congressman Rangel invited Judge Bates below and invites this court here to do something extraordinary unprecedented and ultimately unconstitutional effectively to undo his censure by the House of Representatives of the 111th Congress. Judge Bates correctly rejected that imputation on three independent and independently dispositive grounds, speech or debate, political question and standing. I'm going to focus on speech or debate briefly and respond to a couple of points that opposing counsel has raised. The first thing I want to make sure the court understands is irrespective of what the purpose of the speech or debate clause is the purpose is not co extensive with the standard that the privilege is measured against. It's absolute when it applies. There's been no dispute at that. It applies to members and their aides and those all the athletes in this case are either members or their staffers or the clerk solely for relief purposes. But importantly, the privilege protects acts that are integral and integral part of performing the House's business including as Dr. Griffith noted, a discipline of members and the contents of the House's journal. It seems as though before this court, Congress and Rangel's case changes on this notion that a claim of an unworthy purpose is enough to render the privilege in valid. That's simply not true and that would violate a long standing line of Supreme Court cases and president in this circuit. So unless the panel has any other questions. Yes, no, I do. So would you respond to Mr. Goldberg's point that there's a role for the courts when a committee of Congress trenches upon someone's constitutional rights? Committee of Congress brings somebody before them to investigate for whatever reason and they violate the person's constitutional rights. Do we have no role to police that? Critical to answering that question is who is suing whom and for what? And in the cases cited by Congressman Rangel and identified by Judge Bates below, those cases did not involve cases against members of Congress for their acts. They involved people outside of the House facing consequences for actions they took before the House and they decided in those cases, criminal cases, the courts looked to see whether the House complied with its own rules. But of course here, the suit is brought against, by one member against other members of Congress and their staffers. Well, the suggestion is that Congress, the courts will intervene when a committee of Congress is treating a private citizen chavily that has no role to intervene when treating one of its own members chavily. Is that what the law teaches us? I would write the Court's attention to Powell versus McCormick as an example. Powell was a member who was excluded from the House and claimed that the House did not have the power to exclude him and he brought an action against not only members of Congress, but also officers of the House. And the Supreme Court in that case allowed the case to go forward against the officers and not against the members irrespective of allegations of unconstitutional conduct by the members. The same issue here. So what if the ethics committee had decided that this is completely hypothetical? I'm not suggesting it's true at all in actuality. But what if it were a different time in our country and every time an African-American member was elected to Congress, the ethics committee voted to have that person either censured or expelled? It was all on racial grounds. Would there be any role this no outside people all inside? Would there be any role for judicial review? Again, you're on the answer to that question. Hangers on who is suing whom and for what? Okay, the expelled member is suing the ethics committee and its members for the expulsion. To answer that question, I want to address a particularly important factual notion. The way that the committee functions is it investigates allegations of all the evidence. No, I'm asking a hypothetical little question about our ability to review. It doesn't really turn on how a committee is structured now. In my universe, it is a certain time in this country when racism was rampant and on Majaris, let's assume, and again it's hypothetical, I'm not suggesting that this ever actually happened, that a majority of the House or Senate didn't want any African-American members. And so use this process to expel them. Invoking its power under the clause to expel members upon a two-thirds vote. It's a great court precedent from East London including Brewster. Alligations and improper motives simply off limits for the judiciary when you have a suit against members. The answer is no, there's absolutely nothing a court could do in that sentence. The court could not pardon me. The members who were sued would be in type of community on the speech of debate clause irrespective of allegations of an improper motive. Nothing, nothing at all it could be done then. In a suit by a member against other members of letting an improper motive work matters that are within the jurisdiction of House under the Constitution, those members would be entitled to the immunity of the speech of debate clause. And what about the interests of the people who elected those representatives and actually having their representatives seat it as in the House? If there are constituents who were agreed by that determination and there are some one that proper defend to whom they could sue to seek relief. That's what I'm asking you. So the member and other constituents wanted to sue whom would they sue to stop if they're actually were to be established or around the problem of race discrimination, gender discrimination, you name it, religious discrimination to expel or to censure. We're just going to humiliate on a regular basis, members based on a constitutionally protected status. If there was an officer of the House who was given the charge of enforcing it, the members themselves would be absolutely immune. Whether other people could be sued, if it were proven that the action of the House was unconstitutional, I would refer the Court to Palvara's McCormick. And then Chisholm Kim and Sobran were not members of the staff. They were subcommittee staff. They were committee staff. They were committee staff. They were committee staff. So were they anybody's alter ego? Whose alter ego would they be for purposes of the speech of debate clause if they were committee staff? The committee staff on the ethics committee are professional staff that serve all the members of the committee irrespective of party affiliation. So if you have the judges, you'll have law clerks or staff attorneys for the court. Staff attorneys don't serve just a single judge on the court. They serve the entire court. So they serve all the members of the committee. The speech of debate immunity doesn't apply to Congress as an institution. It applies to individual members and their staff. And so I'm trying to understand. Did the members of the committee vote here adopt a resolution? Has happened, I think, in the gravel over the council. Where the council was being sued. Something to take their immunity and say we wish to share it with this person because we were, we endorsed them as having worked for us in this context. I don't think that there's a requirement that they do so explicitly. But nothing happened like that. The members of the staff are chosen by majority of the vote of the committee. And just like the committee itself, the members of the committee are entitled to the speech of debate privilege. When the staff are performing functions that are within the jurisdiction of the committee, they are entitled to speech of debate. It hasn't been the determination of the House of Representatives to provide them a defense. In this case, you're on the staff app, please, the staff app, please, have their own council here. Have their own council. So the House hasn't decided to defend it. I'm just trying to figure out why is that? Yeah, why is that? If they're, if they, in fact, the alter ego of members who've been sued, why, why doesn't the House provide them? There are a number of reasons why defendants in the case might not have the same council. But just because an individual who's a staff or former staff or the House doesn't have the benefit of House Council representative doesn't mean that they can't assert the privilege of that. I'm really kind of confused because from how we know that institutional employees of the Congress, or of the House, or of the Senate, like the clerk or Sergeant at Arms, don't get this immunity. And individual members and their individual aids do get them immediately. At least if the member wishes to give it to their aid, the member has, it's like it's like it's like a 25-perlits. The member controls this privilege. And at least in most of the cases I've seen, there's been something when it comes to committee staff who are institutional employees, not member employees. Does there need to be some indication, either a vote of the members of the committee, to say that we are giving our immunity to them? How does it transfer from individual member to these institutional employees? Your Honor, when the committee conducts its business, and that business is one of those matters entrusted to it by the Constitution, we are in very much within that legitimate sphere. You're just saying the clerk or the clerk of the Congress writing down the votes, right? That would be the exact same thing. I'm trying to understand how their institutional role is different than what happened in Powell. Well, importantly in Powell, what was that issue was kind of going forward rather than retrospective? But that doesn't change the nature of the speech or debate immunity is a member-held immunity. It's not an institutional immunity. There might be separation of powers, concerns, that would create immunities in certain contexts. But speech or debate is an individual member immunity. And the President has said they can give it or take it away from their individual aids. But we have this distinction that you seem to be pointing out and thought was important between individual members, their individual staff, and institutional employees. And committees, that sounds to me like an institutional employee. The House conducts its business through its members and through its committees, and the members show the committees. And if your honors have- My committees aren't some free acting entity, they are a mechanism through which members act and make decisions. They don't have a life of their own, do they? You're correct that the committees conduct their business through their members. And if the conducted issue here that the staffers are able to engage in would be privileged if the members themselves reformed it, then those activities are also privileged, just as if they were performed by the member. Well, then so if the clerk of the Congress or something, the clerk of the House or Senate did something that a member could do, could a member record votes? Could a member have done what was the actions that were challenged in Powell versus McCormick? Yes, a member could have done that. So the fact that a member could do it doesn't tell us if she seems to be an institutional versus individual line in the case of President. Okay, a fact question. Chisholm, Kim and Sovereign, are any of them still even employed by the House? No, you're right. Or by Congress and any capacity? No, none of them works for the House and the other. Okay. Do you have any more questions after that? All right. Thank you. Thank you. Does Mr. Goldberg have any time? Yes. Yes. I wanted to quote the wrong decision in 23 of a brief. It sets forth the authority of course to deal with the key words implementation of the rules as to whether they need constitutional stand. But don't all those cases involve private citizens, none of them involves a member of the institution who's bringing a claim that he or she has been treated poorly. The cases you're citing don't involve a member of Congress who's bringing. No, we don't have any. That's right. That's right. I just have a role as the leader by these cases and recognized by the Court below. Iraners, there were eight judges. Four were approached by the serial errand members of Mr. Chisholm Step and they were furnished with material that wasn't available to other members. Silence? Showing consciousness of guilt. The members didn't disclose it to the Democratic members. And on that basis, let's imagine we were having an impeachment proceeding against a federal judge or the President of the United States. And there was some of these sort of shenanigans that you're talking about right now, ex-partate communications with senators, things of this nature. Would the defendant in the impeachment proceeding have the ability to come to federal court to preserve his or her constitutional rights to be treated fairly that proceeding? So the impeachment of judges can't come to court. But with respect to why is that the case? I don't know because I have a one section and I think six says that impeachment of judges is so lethal that. Right. And as Chief Justice Warren says, barring that, you can always come to court and in power, he came to court and he claimed that Congress had violated his law. So impeachment is a classic political question because it's been testually committed to this. But if the discipline and discipline its own members is not? No, no. Why is it not paid? Why? Okay. Justice Warren, who pointed out that I have a one section, I think it's really, says that impeachment of a judge is so responsibility of the House. Whereas other men such as this is for the court to decide. Of course, there's nothing that would- But they've never said disciplining a member is something for a court to decide. That's right. He said, however, he said that a case where a congressman claimed that his rights were violated and of course stepped in to assist him. That's the case is an eye for honor where a member of Congress invoked his right to hold position. And the court didn't say, well, that's for the House to decide. The Supreme Court decided that Powell's rights were averaged as constitutional rights were enriched and they stepped in. They didn't say it's a political controversy or it's a matter of relegated solely to the House as to whether he should say it. It cannot be that where you had a judge for a loaded up with material, some of which Chisholm says is unsupported and incorrect. And we his memo, which was recently discussed after the House Secretary of the Engine and see how concerned he is about what has occurred. Let me quickly do this. Judge Bates says these are procedural irregularities. These are not procedural irregularities. These are of constitutional magnitude, the right of confrontation for examination. And my motion was made within a few days of the discovery of the document that Mr. Chisholm sends out. This is not a case where it doesn't rise to an element of constitutional magnitude. This is a case where it's at a decision to begin at 11 procedural irregularities. That's ridiculous. Now let me say this to your eyes. On two occasions I sent in a request for oral ocularity. It had been granted the same might as well as straightened out. It was as though it was sent to another chain. There was no discussion, no exercise of discretion, heard nothing from the judge and even denied the motion. If I had changed it at oral ocularity, it was too request. I might have pointed out it, although I don't think it just really eased it, that if the panel of judges in the city is not appropriate and it derives to issues of constitutional magnitude to submit to half of the panel material, engage in ex-party conversations with them. Look at the risk. All right, Mr. Gover here repeating yourself. You know what? I appreciate your patience. All right. Thank you. Thank you