CHENEY v. U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
In January 2001, President Bush created an advisory committee on energy policy headed by Vice President Dick Cheney. After the group issued its recommendations five months later, Judicial Watch, a non-profit government watchdog group, filed suit in federal district court. The Sierra Club, an environmentalist organization, later filed a nearly identical suit that was joined with the Judicial Watch suit. The two organizations alleged that the advisory committee had violated the Federal Advisory Committee Act (FACA) by not making public all the documents that it had generated. While FACA exempts committees composed entirely of federal officials, Judicial Watch and the Sierra Club argued that the exemption did not apply because private lobbyists had participated in the energy committee's meetings.
Cheney and the advisory group asked the court to dismiss the case, claiming that it violated the Constitutional separation of powers by requiring judicial oversight of internal executive branch deliberations. The district court refused.
The government then sought summary judgment of the case (without the discovery process) based on a few administrative documents that it claimed showed that only federal officials had worked on the group. The district court denied this request as well, and the government appealed to the Court of Appeals for the District of Columbia. The appeals court refused to grant summary judgment, arguing that it could not yet rule on the separation of powers argument. The government then appealed the case to the U.S. Supreme Court.
Does the Federal Advisory Committee Act authorize judicial review of executive branch deliberations through a broad discovery process that allows a private organization to review internal documents of high-level advisors to the President? If such review is authorized by FACA, does it violate the Constitutional doctrine of separation of powers?
In a 7-2 opinion delivered by Justice Anthony Kennedy, the Court sent the case back to the D.C. Court of Appeals, arguing that the appellate court should have considered separation-of-powers claims and was wrong to conclude it lacked authority to order District Court discovery to stop. Such an order (mandamus) to stop discovery proceedings should be considered because those proceedings, "by virtue of their overbreadth," could interfere with presidential activity. Further, the appellate court misinterpreted U.S. v. Nixon to mean that the government needed to assert executive privilege for separation-of-powers objections to be considered.
Argument of Theodore B. Olson
Chief Justice Rehnquist: We'll hear argument now on number 03-472... 475, Richard B. Cheney vs. United States District Court.
Mr. Olson: Mr. Chief Justice, and may it please the Court:
This is a case about the separation of powers.
The Constitution explicitly commits to the President's discretion the authority to obtain the opinions of subordinates and to formulate recommendations for legislation.
Congress may neither intrude on the President's ability to perform these functions, nor authorize private litigants to use the courts to do so.
As this Court has construed the Federal Advisory Committee Act to avoid what the Court regarded and described as formidable constitutional questions, FACA does not permit the litigation and discovery the Respondents wish to pursue.
Justice Kennedy: Would you say it's also a separation of powers question, Mr. Olson, to the extent that it involves the ability of the courts to formulate rules to prevent them from deciding questions unnecessarily?
Mr. Olson: I'm not sure I understand the thrust of your question.
Justice Kennedy: Well, you said this is a case about separation of powers.
And I wanted... I asked whether or not the authority of the courts is not also involved here, because there is a concern that we should have rules designed to prevent us from unnecessarily deciding questions.
Mr. Olson: Well, with respect to the... I'm not sure whether you are asking a question about the jurisdiction of the Court, because that's an issue that's before the Court, or with respect to construing the Federal Advisory Committee Act to avoid the constitutional questions that are implicit in that statute.
We think that there is jurisdiction in this Court.
We think that what the Court did in Public Citizen was make it very clear that because of the formidable constitutional questions, in fact, the Court referred to the constitutional questions in that case as undeniable.
The Court construed the Federal Advisory Committee Act not to apply in that case.
If that same rationale is applied here, the Court will not get to the constitutional question which FACA would inevitably raise if it intruded upon the President's power to obtain opinions from his subordinates, and to make recommendations to Congress with respect to legislation.
Justice Scalia: General Olson, we would also not get to it if we adhered to the firm final judgment rule which is the first hurdle that you have to overcome.
Justice Ginsburg: You wouldn't get to the merits if there is no jurisdiction for us to review at this point.
Mr. Olson: That's true, Justice Ginsburg.
This case fits squarely, we submit, within what the Court decided unanimously in the United States vs. Nixon for two reasons.
In the first place, a denial of immediate review would render impossible any review whatsoever of the claims, the separation of powers claims that are being made here, because the Vice President... and the Vice President is acting as the subordinate and surrogate for the President here.
This is the President's authority.
Justice Scalia: Well, of course, in the Nixon case, the President exercised his privilege and it was overruled.
Mr. Olson: Yes, Justice...
Justice Kennedy: So it's not, it's not on all fours in that sense.
Mr. Olson: Well, it's not all fours in that sense, but the principle as articulated by the Court on pages 683... I mean 691 to 692.
What the Court was concerned about there is that the traditional contempt avenue or any aspect of what would be required of the President of the United States to defy a court order would be both unseemly and would unnecessarily provoke a constitutional confrontation.
What the Court said in that case, when we are talking about, when the Court is talking about important separation of powers questions, the President is in the position of having to defy a court order, risk sanctions of some sort.
Justice Breyer: But you are not defying a court order if you exercise a privilege.
Justice Scalia: Or if you assert a privilege.
Mr. Olson: With respect, Justice Kennedy, this case, the separation of powers issue in this case goes far beyond the assertion of executive privilege.
Executive privilege concerns itself with particular documents or a concern over the relationship that particular documents refer to.
The objection here is to the process.
The President and the Vice President are being subjected to litigation and discovery which goes far beyond what the statute would require here.
Justice Scalia: It's essential to the Government's position, I take it, that this Court reject the de facto doctrine that was developed by the Court of Appeals.
Mr. Olson: We think, Mr. Chief Justice, that the de facto doctrine is wrong.
It's inconsistent with Public Citizen, and if the Court were to construe... find that somehow that the statute could be construed to create a de facto doctrine, which no court has ever done, finally done in connection with a case, that the case, the statute would be unconstitutional as it applied to these circumstances.
However, Mr. Chief Justice, we believe that the Court does not need to get there by construing the statute narrowly, as the Court did in Public Citizen, unanimously, I might say, because three of the eight justices felt that the statute, if it were construed any other way, would be unconstitutional.
Construing the statute in that fashion...
Justice Scalia: When you say construe it narrowly, but nonetheless, retain the de facto doctrine?
Mr. Olson: No.
Not deal with it at all.
I mean, the statute itself, we submit, addresses... I think in the context of this case, Mr. Chief Justice, the statute may be construed in the context of a Presidential advisory group explicitly excluding a committee that's formed of all government employees, and as construed by the Court in that case, either... the words used in the statute are established or utilized.
As construed by that case, this commission was established by the President.
It would be exempt on its face from application of FACA.
Justice Scalia: But what if it's, what if it's... what if the manner in which it's utilized is that, in fact, outsiders, nongovernment employees, were actually given a vote, that when the committee took a vote, there were some nongovernment employees who were counted?
Mr. Olson: We submit, Justice Scalia, that that would raise very serious constitutional questions.
As an antecedent to that, there was no intention when Congress passed a statute to prohibit or regulate ex parte communications between the executive branch and members of the public.
Justice Scalia: Well, this is, this is more than ex parte communications.
It's that the committee is in fact, as utilized, not a committee composed exclusively of government employees.
All I'm saying is the people voting, the people voting, why would that be such an intrusion upon the executive?
Simply to require knowledge of whether anybody that voted on the various recommendations of the commission was a nongovernment employee.
Why would that be such a terrible...
Mr. Olson: Well, I'm going to, I'm going to quote from the Public Citizen decision itself, which authoritatively and specifically defined the term or utilized in a way which would be flatly inconsistent with this question that you just raised.
But I also want to mention, and would want to go on to say, that would require that the courts ignore the presumption of regularity which applies to the executive, particularly when the executive is performing core executive branch functions, which it clearly is in this case.
But to get back to your question, the court in Public Citizen, on page 462, specifically defined what or utilized meant in that case.
And defined it in this way, in order to avoid the undeniable formidable constitutional questions that would be raised if it was defined as you suggested.
The Court said...
Justice Scalia: General Olson, would you clarify why we are dealing with the merits.
Justice Ginsburg: I thought, and correct me if I misunderstand this, that the merits will have to be resolved in the first instance by the court below.
If we find that there is jurisdiction, if we agree with you, for example, that this discovery should not have been allowed, then why should we take the first view of the merits of this case?
Mr. Olson: It seems to me in the context of this case, Justice Ginsburg, that once jurisdiction is acknowledged, the context of the case, the administrative record, which specifically contains within it the Presidential directive which created the advisory committee only to include members of the executive branch.
The report of the committee, which specifically identifies as members only members of the executive branch, and the affidavit or declaration that's on file from the deputy director, which said that the only participants were members of the executive branch, and the presumption of reliability, of regularity that the Court consistently, U.S. vs. Armstrong is one case, the Court consistently, absent clear evidence to the contrary, accords executive branch action...
Justice Scalia: But you would still be asking us to resolve the merits in the first instance, not to review any lower court decision because they said there ought to be discovery first.
Mr. Olson: Well, but we are submitting that the discovery itself violates the Constitution, violates FACA as properly construed.
Justice Souter: All discovery, not... you are not...
Mr. Olson: Yes, because...
Justice Scalia: But isn't that simply the basic argument on the merits again.
Justice Souter: The reason... I think you're saying the reason we can't have discovery is because the whole statute is unconstitutional as applied to the President.
Mr. Olson: Unconstitutional if it... if applied in these circumstances.
Now, it may be construed...
Justice Souter: Yes.
If we go... I mean, if we do what Justice Ginsburg is trying to do, and that is get to the jurisdictional issue without passing, in the first instance, as accord in the first instance on the merits, then it seems to me that the jurisdictional question, to me at least, boils down to this.
Why should we accept your position on jurisdiction when jurisdiction goes to the propriety with constitutional overtones, of course, of discovery, and we don't have the discovery order refined yet.
If this case goes back or if it had indeed not been appealed in the first place, you would have been fighting with your colleagues on the other side about what specific discovery to allow.
Once we knew what the District Court specifically was going to allow, we would have a fairly sharply focused question, and that arguably would be subject to an appeal regardless of the final judgment rule.
But we don't have that focus yet.
Mr. Olson: Well, there is two answers to that... at least two, Justice Souter.
In the first place, the discovery was ordered by the District Court.
It may be found at pages 215 to 220.
Justice Souter: But you never came down... I realize that, I have read the orders.
But you never came back, or the Government never came back and said, well, that order is too broad because, and we think it could be allowed to this extent, and there was... there was no, as I understand it, there was no process of trying to refine the discovery order down to anything beyond the generalities that we have on the record.
Mr. Olson: Every effort was made with respect to the actions of the litigants in the District Court to refine it as much as possible.
The District Court finally said this is what I order.
I order the Petitioners not to file any dispositive motions.
I order the Petitioners to respond to the discovery, to reply to nonprivileged discovery requests and assert executive privilege, which we are saying...
Justice Souter: And you did not assert any executive privilege.
Mr. Olson: No.
We did not.
We did not.
Justice Breyer: So we don't know what might be subject to executive privilege, and sustained, perhaps, and what would not be.
Justice Souter: And it's the what would not be that would raise the constitutional issue that you are trying to raise.
And it seems to me, until we know exactly what that is, there is a pretty good argument that the final judgment rule should not be subject to exception at this point.
Mr. Olson: Well, I think that there is a very strong case that it should be, Justice Souter.
The Court of Appeals addressed this issue, too, and said, well, the District Court might have been too broad.
In fact, the Circuit Court, the Court of Appeals recognized the constitutional implications and then said, but maybe that can be narrowed down, but that the Respondents should be entitled to whatever discovery they need to prove their case.
Justice Scalia: Was the District, was the District Court's discovery order unconditional?
Mr. Olson: Well, it was... I don't know what you mean by...
Chief Justice Rehnquist: Well, I mean, did it say, you know, the Government must produce thus and so, thus and so, thus and so?
Mr. Olson: Yes, it did, Mr. Chief Justice, although it did say that the Government could assert privileges with respect to burden or executive privilege, and so forth.
But if one looks at those discovery orders and they are in the joint appendix, they were much broader than the statute itself, broader than the relief that possibly could...
Justice Scalia: But now we are dealing with the situation at the two, the two justices, judges on the Court of Appeals both said, this is too, this discovery order was too broad.
Justice Ginsburg: It ought to be trimmed.
Now the District judge would have that message, so you could have gone back there and said see, District judge, this has to be narrowed.
Mr. Olson: Inevitably what would have happened, because what the Court of Appeals said, and this is at Petition appendix 18-A of the Court of Appeals decision is that however refined the District Court's order would be, they would be, the Respondents would be entitled to whatever discovery they needed to prove their case.
Now, what they need to prove their case, notwithstanding the presumption of regularity that the Court has always applied to the executive, absent clear evidence to the contrary, there is no clear evidence to the contrary here, Justice Ginsburg.
All there is is a pure unadorned allegation which the Respondents say they get from media reports that there were contacts, nothing beyond that.
But what they would need to prove, to prove their case is precisely what the District Court was going to allow them to utilize.
Justice Scalia: Well, can we get to...
Mr. Olson: In the form of...
Justice Scalia: Can we get to the jurisdiction point?
Why is it that you went to... that you are justified in going to the Court of Appeals?
Justice Kennedy: Because there is a new exception to the collateral order doctrine, or because you are seeking mandate?
Mr. Olson: Both, Justice Kennedy.
Justice Kennedy: What is the exception?
Is it something new under Cox or is it on one of the before Cox exceptions?
Mr. Olson: This fits squarely within Nixon.
When the Court said to require the President, and remember, we are talking about the President as the real party in interest, to place himself in the posture of disobeying a court order, merely to trigger the procedural mechanism.
Justice Scalia: We have already discussed that he did not... the Vice President in this case did not exercise his privilege.
Wasn't close to being held.
Mr. Olson: What we are dealing with here is the President...
Justice Kennedy: How do you describe the general exception that you want us to have for discovery disputes in the District Courts?
Mr. Olson: When the...
Justice Kennedy: When it involves the Vice President, it's different?
Mr. Olson: Well, it certainly does when it involves the President or the Vice President in core constitutional functions.
And U.S. vs. Nixon stands for the proposition when the President must choose between submission to an unconstitutional order, which participation in this discovery, the process of participation, having to prove every time the President consults with someone, to submit to litigation, and potentially submit to discovery, to submit to the violation of the separation of powers, or, or violate or challenge either sanctions or some order from the District Court.
Justice Scalia: You wouldn't have to do that if you just asserted executive privilege as to each discovery request that you thought would be burdensome.
Justice Breyer: And then if that's granted, you have no problem.
And if it's denied, you immediately come up on that.
Mr. Olson: Justice Breyer...
Justice Breyer: Why not do that?
Mr. Olson: We believe that it's much broader than executive...
Justice Breyer: I know that's your legal argument, and you may be right about that.
But assuming you are right about that, you bring up the broader issue on an appeal from the case.
See if you lose it.
And as to your being right, being right I guess isn't enough to get you to appeal a discovery order if... but maybe you can if you really need to.
So my question is, why did you really need to since you could have asserted executive privilege as to each individual.
Mr. Olson: Because the act of forcing the President to invoke executive privilege every time someone files a lawsuit, notwithstanding the presumption of regularity which was completely ignored here, that means that FACA would be used in every case to file a lawsuit to challenge the President and the Vice President's ability to...
Justice Breyer: Well, let me...
Mr. Olson: To obtain opinions...
Justice Scalia: Let me ask you this.
At some point, I think the Government made a Section 12(b)(6) motion to dismiss this suit because the statute was unconstitutional.
Justice O'Connor: And that was denied.
Now, could the Government not have sought review either under the collateral order doctrine at that time, or even by mandamus to address directly whether the statute is constitutional?
Mr. Olson: Potentially, Justice O'Connor.
Justice O'Connor: Why didn't the Government do that?
Mr. Olson: Because the Government was anxious... because there was another way to resolve this whole problem, notwithstanding the denial of the 12(b)(6) motion to dismiss.
Justice Scalia: But wouldn't that have given the courts a chance to go directly to the issue of whether the statute is constitutional?
Mr. Olson: We submit that what the Government did here was try to work out the delicate constitutional problems that were involved here, the balancing of the executive's prerogative with the litigation function and that sort of thing, and to go the extra mile.
I don't think the Court would want to encourage filing a mandamus or collateral order appeals every time there is a denial of a motion to dismiss.
Justice Scalia: I take it, General Olson, that from the rest of your argument that traditional executive privilege doctrine would not cover all of the constitutional issues that you think exist here?
Mr. Olson: That's precisely correct, Mr. Chief Justice.
The forcing of the President to submit to litigation and discovery, which if permitted in this case could be in any case comparable to it, any time advice is being sought from a citizen or from subordinates who may have then talked to citizens, notwithstanding the clear four corners of the directive when the President created the body within his own Administration from which he sought advice, every time there would be a lawsuit, every time they would say, well, Mr. President, come into court and claim executive privilege.
Justice Kennedy: I see that.
Justice Breyer: I see that.
Justice Scalia: But that's an argument which you made in response to my question which is an argument on the merits.
Justice Breyer: And I want you to focus on the fact that... assume I agree with you on the merits.
You will have a chance to make that argument on the merits, even if you lose here and if you lose the case.
Now, my question is addressed to the need for an interim appeal from the discovery.
And as to that, what is your response to the fact that you could get your interim appeal or at least preserve yourself from harm if you had asserted executive privilege to the individual bits of the discovery order with which you disagreed.
Mr. Olson: There is two answers to that, one which the Chief Justice suggested in his question.
Executive privilege may not have covered every scrap of paper.
It would have required the President and the Vice President to spend time with documents deciding whether or not to assert executive privilege.
And it is the process... more importantly than that, it is the process itself of submitting, as it would be if someone, if the Congress had applied this statute to the Supreme Court of the United States or even to itself, and then allowed litigants to bring the Court or members of Congress into court to explain why they wouldn't produce information with respect to who they talked to.
Justice Scalia: Well, you know better than most the dynamics... than most attorneys, the dynamics of the discovery system.
I hear in your argument echoes of every discovery dispute I've ever listened to.
Mr. Olson: Yes.
There are several differences, Justice Kennedy.
As I said at the very beginning, this discovery dispute involves bringing the President and the Vice President of the United States into court to defend themselves with respect to textually committed obligations and responsibilities that they have under the Constitution.
Every other discovery dispute that I have experienced, and I submit this Court has experienced except for perhaps U.S. vs. Nixon, maybe another case, did not involve those circumstances.
This is at... this puts the President, in order to challenge the constitutionality of a process that's invasive to fundamental Presidential prerogatives and responsibilities into court to defend himself, notwithstanding the questionable constitutionality of the statute that triggers it, that mandamus may not be brought against the Vice President which is the... the Federal Advisory Committee Act, it's worth mentioning, does not create a private right of action.
The APA did not create a right of action against the Vice President here.
So the litigants in this case, not having a right to even bring this case under the statute, then sought mandamus, it's important to mention.
Justice Scalia: Well, then why did the Government turn over 36,000 pages of paper from the agencies that were also a part of this action if the whole thing is so misguided, if the application of this Act violates the separation of powers, why did the Government respond to the request for information from the agencies?
Mr. Olson: There are several answers to that.
One, the agencies occupy a different statute under the APA.
They occupy a different position under the Freedom of Information Act.
And therefore, the obligations were different with respect to the President's core function.
Justice Souter: But those documents that were turned over were, as I recall, documents that would have been available under FOIA, is that right?
Mr. Olson: Yes, Mr.... Justice Scalia, they would have been arguably available under FOIA, and they were produced under FOIA.
Justice Scalia: But you didn't get, you didn't make the argument that no discovery, you are very clear about that, no discovery is appropriate under this statute.
Justice Ginsburg: And yet you didn't, whether... whether the information that was turned over could have been gotten under FOIA, this wasn't a FOIA suit.
Mr. Olson: There was more than one action, Justice Ginsburg.
There were several FOIA actions brought against the various different departments.
Justice Scalia: Well, specifically, these pages that have been previously disclosed to other requesters under FOIA.
The request in this case, wasn't it made to them under the FACA?
Mr. Olson: Yes.
But the documents having already been produced and made available to the public under FOIA, it seemed to the government that would be foolhardy and unnecessarily confrontational and would serve no purpose whatsoever to withhold producing another set of those documents.
Again, this is effort...
Justice Souter: General Olson, would you clarify one thing for me?
Justice Scalia: Were these documents produced by agencies or were they produced by the energy policy group.
Mr. Olson: They were produced by agencies.
Justice Stevens: So there has been no discovery at all from the policy group, and you claim, of course, that they are totally exempt under the plain language of the statute.
Mr. Olson: Yes.
And Mr. Chief Justice, if I may reserve the balance of my time.
Justice Scalia: Very well.
Justice Kennedy: Very well, General Olson.
Justice Stevens: Mr. Morrison, we'll hear from you.
Argument of Alan B. Morrison
Mr. Morrison: Mr. Chief Justice, and may it please the Court:
The threshold question before this Court is whether the Court of Appeals correctly ruled that it lacked jurisdiction over Petitioners' attempt to obtain interlocutory review of the District Court's order.
In seeking review in this Court, Petitioners paint the picture of having been backed into a corner.
They claim that if they do not obtain immediate appellate review that they will lose all meaningful opportunity to obtain review of the legal positions that they have taken in the District Court.
The basis for this claim, as the Solicitor General said, is United States against Nixon.
The Court of Appeals correctly distinguished that case, and said that under neither mandamus or the collateral order was review proper.
Justice Breyer: The Court of Appeals based that, as I recall, on the fact that in Nixon, executive privilege had been asserted, right?
Rebuttal of Theodore B. Olson
Mr. Olson: They certainly made that observation, but that was not the only reason relied upon by the Court of Appeals.
There is some question as to the extent to which the Court of Appeals opinion can be read in that regard.
We do not rely on the fact that executive privilege was not claimed because here the Government's position is that no discovery of any kind whatsoever, other than the previously produced documents, is available here.
Justice Breyer: I'm surprised to hear that.
I was, I was going to talk to you about executive privilege, because I thought that your briefs did rely on the fact that executive privilege was not claimed, and that doesn't seem to me a very significant factor.
Rebuttal of Alan B. Morrison
Mr. Morrison: I thought I had been pretty clear in my brief saying that executive privilege was certainly something that could be claimed down the road.
And we certainly... the District judge had not precluded that from happening.
But as far as we were concerned...
Justice Breyer: It should make no difference to the outcome of this.
Mr. Morrison: It makes no difference.
It makes no difference.
Justice Breyer: But there is an interim position in which one would say, well, it makes a difference to this extent, that until the executive privilege has been claimed and has been ruled upon, the extent of... to which they have a plausible separation of powers argument is not clear.
Justice Souter: I mean, we could take that position, I take it, you would agree?
Mr. Morrison: Yes.
That would require accepting the notion that... that everything else that they can... they can refuse to turn over everything else, which is essentially their position here.
The Solicitor General's brief is very clear, no discovery, period, in this case.
Justice Breyer: It would also require acceptance of the position that executive privilege is a definable doctrine only applicable to certain matters, and that it is, it is the function of this court to decide what it can be asserted for and what it can't be asserted for.
Justice Scalia: And that is not my view of executive privilege.
I think executive privilege means whenever the President feels that he is threatened, he can simply refuse to comply with a court order.
And the same thing with Congress.
And it ends up in a, you know, a struggle of the two branches.
I don't view that as some legal doctrine that enables him to withhold certain documents.
He is, he has the power as an independent branch to say, no, this intrudes too much upon my powers, I will not do it.
And after that, it's a, it's a struggle between two branches.
And if you view executive privilege that way, forcing him to assert executive privilege is really pushing things to an extreme that should not very often occur in this Republic.
Mr. Morrison: Well, leaving aside the question of the interpretation of the United States against Nixon as to whether that decision agrees with Your Honor's interpretation, we don't have to get to that issue in this case, and... and the...
Justice Breyer: I don't want to delay this.
Justice Scalia: But to me this is important.
Justice Breyer: Assume that their interpretation of the statute is completely right.
Justice Scalia: Assume that.
Mr. Morrison: Yes.
Justice Breyer: I know you don't want to, but for argument's sake, then what they are really asking for is a separate exception from the collateral order.
I mean, and a separate exception that allows them, the Vice President and the President, and nobody else, to take an appeal from discovery.
Now, executive privilege in my mind came in by asking, well, shouldn't they at least have to assert that it's that kind of imposition upon the President's office prior to being able to carve out, under whatever name, a separate exception that would permit an appeal.
Mr. Morrison: I don't read the Government's brief as being that narrow.
But to the extent that what they are saying is that they have some kind of special immunity from discovery, it would, as Justice O'Connor suggested earlier, have been perfectly apparent the day of July 11th when the court denied the motion to dismiss, and ordered that discovery is going to take place.
That that was the time in which the Government should have taken an appeal if they claimed some sort of immunity like...
Justice Breyer: What kind of a...
You can't appeal from, you can't appeal from the denial of the motion to dismiss.
Justice O'Connor: That's really interlocutory.
Mr. Morrison: Well, Your Honor, but... the notion that there is a special kind of immunity from discovery of the President and Vice President, a situation like this which is what I understand their argument to be, that's the functional equivalent of an immunity defense for which there is an exception under the collateral order rule.
I disagree with the merits of that, but if that's their argument, that's when they should have taken the appeal.
Justice Souter: Are you saying...
Justice Scalia: I wonder about that.
I can see you coming up here and saying, everyone knows that the motion to dismiss was denied is not interlocutory.
Justice Breyer: There has been no discovery yet.
There's been no order.
They haven't been heard.
I can hear that.
Mr. Morrison: But nothing has happened of any legal significance in the case from that time on.
The Solicitor General said the Government was trying to work things out.
Justice Kennedy: Discovery order.
Justice Breyer: The mere denial of the motion to dismiss did not automatically determine that there would be a discovery order.
Justice Scalia: The court, the court might have found, in accordance with the arguments of the Government, that discovery would be inappropriate.
Mr. Morrison: Your Honor, with all respect...
Justice Scalia: And so that is a new injury to the, to the executive which they are trying to bring up here.
Mr. Morrison: With all respect, Your Honor, if you read the District Court's opinion, the principal grounds on which the District Court refused to dismiss the case was that discovery was required both with respect to the de facto officer issue and with respect to...
Justice Breyer: Ordinarily, that would be summary judgment, not motion to dismiss.
Motion to dismiss just deals with the pleadings.
Justice Scalia: You are not talking about discovery at that stage.
Mr. Morrison: Well, the Government, Your Honor, had offered in evidence the Executive Order creating the task force and a copy of the final report.
The Knutson affidavit did not come in until three months later.
Justice Breyer: Then why wasn't that the end of the case?
Because as I understand it, discovery is just what you want at the end of the case.
Mr. Morrison: No, Your Honor.
Justice Breyer: What relief can you get if you win the lawsuit?
Mr. Morrison: Well, if Your Honors will look...
Justice Scalia: No.
Justice Stevens: Tell me what relief you can get if you win the lawsuit?
Mr. Morrison: We can get a declaration that it was... that de facto has to apply.
We then get access to all the drafts.
Justice Breyer: So you get discovery.
Mr. Morrison: No, Your Honor.
What we get... some of the things we would have gotten...
Justice Scalia: You get more discovery, or what did you get if you win the lawsuit?
Justice Breyer: That's the thing I hadn't really been understanding.
Mr. Morrison: We get copies of all the papers that were exchanged in the entire advisory committee process.
Justice Breyer: Have you not asked for those in discovery?
Mr. Morrison: We have asked for document... for discovery requests which the Government contends are very broad and could include some of those things.
Our discovery plan...
Justice Breyer: And are they right?
Mr. Morrison: They could be interpreted as being right, but not in light of what the District Court said in his order denying the motion to dismiss.
He said, we are going to have very narrow, tailored discovery designed to find out first and foremost is the de facto officer applicable.
If you look at our plan of discovery, which is in the joint...
Justice Scalia: What is this de facto officer?
Justice Breyer: Where does that come from?
Mr. Morrison: It comes from a case that was decided in the D.C. Circuit in 1993.
Justice Breyer: It did not involve this particular exception from the FACA, though.
Mr. Morrison: Yes, it did, Your Honor.
Justice Stevens: It did not involve... it did not involve a committee composed entirely of government employees.
Mr. Morrison: Oh, yes, it did, Your Honor.
It was alleged that... the first place, the Hillary Clinton task force was composed entirely of government employees and the working subgroups were also composed entirely of government employees.
The first question was, was the First Lady a government employee.
Justice Scalia: Yes.
Justice Breyer: But the... as to the working groups, they were found not to be government employees?
Mr. Morrison: No, Your Honor.
They were found sufficiently unclear that the Court of Appeals sent the matter back for discovery.
Justice Scalia: And they were defined, they were identified in the order appointing the committee, the working groups.
Justice Breyer: Do you contend that any of the people named in the order appointing this committee are not the people they purport to be?
Mr. Morrison: Not in the order appointing the committee, Your Honor.
But we do contend that the subgroups...
Justice Stevens: That people not named in the order are really members.
Mr. Morrison: Which were specifically authorized...
Justice Stevens: Which is different from that other case.
Mr. Morrison: It is arguably different.
But as Justice Ginsburg suggested earlier, since the Court of Appeals was the one who created this doctrine to begin with, it would seem inappropriate for this Court to try to distinguish this case from that one on the basis of when we, A, don't have a record, and B, when the Court of Appeals had never been allowed to pass on that particular issue.
Justice Breyer: That's a rather strange doctrine, that we can't tinker with what the Court of Appeals has done, even though we disagree with it.
Mr. Morrison: No.
It hadn't done anything, Your Honor.
It has not ruled on that doctrine in this case at all.
It hasn't reached the merits.
The Court of Appeals decided nothing but jurisdiction.
Chief Justice Rehnquist: And so you say that we then are prohibited from saying the Court of Appeals de facto doctrine is wrong?
Mr. Morrison: I didn't say prohibiting, Your Honor.
I said in the exercise of your discretion, it would be appropriate to allow the Court of Appeals in the first instance to pass on it.
Judge Randolph, by the way, Justice Stevens, thought in his dissenting opinion that the only way he could distinguish the two cases was to overrule the prior decision.
He may or may not be right, but it suggests to me...
Justice Breyer: Well, why isn't it wrong?
Justice Scalia: Why isn't, why isn't the Court of Appeals wrong on that, the argument being that this is not a discovery statute.
This is not an ex parte communications statute.
Justice Breyer: This is not a Freedom of Information Act statute.
This is a blue ribbon committee statute.
Mr. Morrison: No, Your Honor...
Justice Breyer: And if you turn it into the latter, you will stop...
Mr. Morrison: It is partially...
Justice Breyer: you will stop every... you'll stop every lower level official in government when he is creating legislative policy from getting on the phone and calling up whoever he pleases.
You understand that argument.
I want your response.
Mr. Morrison: All right.
First, to some extent, it is an open government statute because part of the relief under FACA is getting access to all the documents that the committee prepares, including its minutes.
Second is that this statute does not apply, except to committees.
A committee under the Public Citizen case requires a substantial level of formality.
We concede that both this committee and the Executive Office of the President and anyone else can call anyone they want at any time without triggering FACA.
Only if you have a formalized committee and if you bring people in to participate in the same manner as other committee members...
Justice Breyer: That would require voting.
Mr. Morrison: Not necessarily, Your Honor.
Justice O'Connor: I have... I have always been puzzled by that in your briefs, to participate in the same manner as other committee members.
It seems to me the essence of being a committee member is having a vote in the outcome.
Justice Scalia: So it seems to me the only discovery you would need is discovery as to whether anybody who was not a government employee voted.
Mr. Morrison: That, Your Honor, I suggest is a question of law as to whether voting is required, but we believe that if outsiders participated in the marking up of drafts, they had input into the drafts, particularly at the subgroup level, even though they had no formal vote...
Justice Scalia: Why is that?
Justice Breyer: If I bring somebody else from my agency with me, I expect all of these cabinet members didn't come to the meetings alone.
They certainly had assistants with them.
Justice Scalia: Were those assistants members of the committee?
Mr. Morrison: They were...
Justice Stevens: Certainly not.
Mr. Morrison: They did lose the exception, Your Honor, because they were full-time government employees.
Justice Scalia: I'm not asking whether they lost the exception.
I'm asking whether they were members of the committee, and the answer has to be no.
Now, suppose I bring instead of another government employee with me to give me advice, I bring a private individual with me to give me advice.
Suddenly, that private member becomes... private individual becomes a member of the committee even though a government agency member...
Mr. Morrison: It is certainly a plausible interpretation, Your Honor.
Justice Scalia: Not plausible to me.
Mr. Morrison: Well, the statute says the exception is composed of, wholly composed of full-time government employees.
Congress was well aware of this problem and it decided that it wanted to have a very narrow exception.
At least it's an arguable basis and we are now here on interlocutory appeal without any facts in the record whatsoever as to how these committees operated, how the subgroup operated.
They may have had a vote at the subgroup level.
Justice Breyer: What do you say about the presumption that high officials of the government obey the statutory provisions that they are supposed to follow?
Mr. Morrison: Well...
Justice Breyer: You don't have any information and belief that the people who are said to have been appointed were really not appointed, do you?
Mr. Morrison: They were appointed.
If I may, Your Honor, a quote from the staff director's affidavit, which appears in the, in the joint appendix on page 76.
He admits, and the Government admits, that there were substantial numbers of meetings between outside people and the task force.
The question is what happened at those meetings, and that's what we seek discovery.
This is not simply an allegation.
The General Accounting Office...
Justice Scalia: But that's all you would get if you won the suit, and it goes back to Justice Stevens' question.
Justice Breyer: Isn't the posture of this case one in which what happens at the end of discovery if you prevail and get discovery is substantially the same as if you won the suit.
Mr. Morrison: Your Honor, we would get properly reined in discovery, as the District Court understood it, we would get the basic information about who went to the meetings, who had access to the drafts, whether anybody had the right to vote.
At that stage of the proceeding, that's all the discovery we think we are entitled to.
Justice Breyer: Do you think those are fairly concluded within the separation of powers privilege that the Government is asserting?
Mr. Morrison: I do not think that the Government has any right to withhold that kind of information in this kind of case.
And if the Government makes...
Justice Kennedy: But that's, but that's the issue.
Mr. Morrison: Yes.
And if the Government asserts that it has the right to withhold that information, it may continue to assert that right.
The District Court will then proceed under Rule 37, enter an order against it.
It can then take an appeal from a final judgment and the question...
Justice Breyer: Only if the District judge enters a default judgment, but that's just one of many options.
Justice Scalia: The District judge isn't required to take that...
Mr. Morrison: No.
That is correct.
And get... the question is, should we try to anticipate what the District Court, District judge will do.
Justice Ginsburg: Thank you, Mr. Morrison.
Mr. Orfanedes, we'll hear from you.
Argument of Paul J. Orfanedes
Mr. Orfanedes: Mr. Chief Justice, and may it please the Court:
Judicial Watch submits there was no jurisdiction in the Court of Appeals to review the District Court's discovery orders, but assuming for purposes of argument that there was jurisdiction, we respectfully submit that the District Court properly denied Petitioners' motion to dismiss, both as a matter of statutory construction and consistent with Circuit precedent and separation of powers.
Justice Scalia: Well, that surely is one thing that's not before us, is it, is the District Court's denial of the motion to dismiss?
Mr. Orfanedes: Well, no...
Justice Souter: I mean, it's not appealable.
Mr. Orfanedes: That's correct.
The Government is arguing, however, that the discovery that the District Court did order should not have been ordered because of the underlying merits of the motion to dismiss is my understanding of the Government's argument.
We submit that that's a...
Justice Scalia: They are arguing that it's not before us... what they are arguing is that this statute doesn't apply, so therefore there was no discovery.
The statute isn't one under which you can go behind the certification of the President, the Vice President, et cetera.
Justice Breyer: We both read their briefs.
Mr. Orfanedes: I think that's indistinguishable from arguing...
Justice Breyer: Okay.
Well then go ahead and make the argument.
Mr. Orfanedes: If you could allow me to proceed.
The District Court ordered discovery because it believed that it was necessary in order to avoid the constitutional issues that the Government is raising in their briefs.
In denying the motion, the District Court properly applied what was Circuit precedent at the time and is Circuit precedent, the AAPS case, allowing for this de facto membership doctrine that we have talked about.
The District Court thought that if discovery yielded information that would show there were no, there was no involvement of private individuals in the task force, then there would be no reason, no reason to even reach the constitutional issues.
Justice Breyer: Involvement of private individuals in the task force does not equate with membership of private individuals in the task force, and I wonder what your view is about the question that I asked to Mr. Morrison.
Justice Scalia: What, what is it that makes you a de facto member?
It surely can't be just sitting there next to somebody else who is even at a full committee meeting.
It can't be sitting next to the cabinet member.
Mr. Orfanedes: I think the court in the AAPS case, that the District Court was relying on, and that the Circuit Court was also...
Justice Scalia: Yes.
Well, that case may be wrong.
What is it that makes you de facto member?
What... I assume it's the same thing that makes you a member, that is the power to determine the action the committee will take.
Justice Kennedy: That is the power to vote.
Mr. Orfanedes: I think it's not looking just at voting, but whether or not there is anything that functionally distinguishes the members, the de facto members from the actual members.
Justice Kennedy: There is.
Justice Scalia: The vote.
Let's assume that's the only thing that distinguishes them, the vote.
Isn't that enough?
Mr. Orfanedes: It could be a vote.
But there could also be... it could also be more than that, in this particular instance...
Justice Scalia: If it's more than that, you are not talking about de facto members.
You are talking about de facto participants, and that's a different...
Rebuttal of Alan B. Morrison
Mr. Morrison: In this particular instance, there was one allegation we set forth in our complaint of policy recommendations that were conveyed to the Vice President and those recommendations did end up mirroring recommendations that were...
Justice Scalia: Exactly.
Now, their problem with your interpretation of the statute, I take it, is the following.
Justice Kennedy: Forget the Vice President.
Justice Scalia: You are Assistant Secretary of Antitrust.
Rebuttal of Paul J. Orfanedes
Mr. Orfanedes: That's correct.
Justice Breyer: You are Assistant Secretary of HHS in charge of drug policy.
You are trying to develop a legislative proposal.
Every staff person in the Congress, given such a task, would phone everyone in sight who knows about it outside the Congress to try to develop sound proposals.
And if it's a serious matter, they'd have 50 meetings with everybody under the sun.
And if you assigned the same thing, try to do the same thing under your interpretation of the Act, every one of those outside people could be hit with a discovery order, what meetings did you go to, what did you say, what did you do.
And their final point is that Congress could not possibly have intended in this statute to have created that circumstance, putting government in a cocoon when it develops legislative policy.
Now, I have overstated what they said, but I'm trying to get a response from you as to what I take is their basic point.
Mr. Orfanedes: I think that's correct, Justice Breyer.
I don't think...
Justice Breyer: Well, you don't think it's correct.
Mr. Orfanedes: I don't think... I don't think Congress would have created such a statute, and I don't think they did create such a statute.
Justice Breyer: Cause.
Mr. Orfanedes: The case law that has interpreted the statute and the statute themselves requires a certain degree of formality, structure and continuity to an advisory committee before, before the requirements of the statute begin to apply.
Circuit Court precedent, including the Nader vs. Baroody case, that I think all the parties have cited in their brief held exactly that.
That there has to be... there cannot be ad hoc committee meeting or ad hoc committee members.
Justice Breyer: Explain the degree of formality that you think triggers the statute.
Mr. Orfanedes: Well, certainly there has to be an establishing document, according to FACA.
I think there has to be some degree of understanding of what the membership of the committee is going to be.
There talks about an end point to the committee as well.
Justice Breyer: The Attorney General of the United States turns to the head of the Antitrust Division and says I want a legislative proposal about Webb-Pomerene acts.
You get together with your counterpart at State, create an interagency task force and give me a document, and he announces the whole thing in a public speech.
Now, do we have the application, in your opinion, of FACA that would trigger the questions I mentioned?
Mr. Orfanedes: That, that may trigger the questions that we made.
And I think there is one thing that's important about this particular committee, and the document that established it.
It's a January 29th memorandum from the President.
It's in the appendix at 157, I believe.
And in that document, the Vice President was given the discretion to create subordinate working groups.
There is nothing in that document that limits subordinate working groups to consisting only of private employees.
Justice Scalia: If the interagency task force creates the FACA situation in your view, imagine that I have repeated my first question, but simply applied it to interagency task forces.
Justice Breyer: If you remember my first question, it had to do with the cocoon.
Mr. Orfanedes: Sorry.
Justice Breyer: All right.
Now, what is your response?
Mr. Orfanedes: I think again what becomes important is the membership of that task force.
And if that, if the idea behind creating that task force allowed for, in the AAPS case, outside consultants or consultants of undetermined origin, in this instance subgroups, without any limitation as to whether or not they would be Federal employees or not Federal employees, in that instance, the requirements of the statute could be triggered.
Justice Scalia: Those subgroups would report to the full committee, I assume, they would not have any dispositive authority over what the report of the committee says, would they?
Mr. Orfanedes: Well, there was nothing in the originating document that described who those subgroups would report to.
Justice Scalia: Well, they are called subgroups, aren't they?
Rebuttal of Alan B. Morrison
Mr. Morrison: That's whether or not...
Justice Scalia: That seems to indicate that they are under somebody.
And I gather what they are under is the committee.
Rebuttal of Paul J. Orfanedes
Mr. Orfanedes: It could very well be whether they reported to the committee as a whole or to the executive...
Justice Kennedy: Well, that's fine.
Justice Scalia: I don't care who they report to.
They are not the committee.
Mr. Orfanedes: They are not the committee, but FACA includes within its definition of an advisory committee any subgroups or working groups of a committee.
Justice Scalia: Well, if the, if the statute requires disclosure of all these things, at the end of the day, as a final order, and discovery, when they are hit with a discovery order, it gives them all the same information, why isn't the Government right, that this really is the essence of the suit and we should hear the merits of it now.
Mr. Orfanedes: I don't think it is the essence of the suit.
I think the appellate court gave some strong advice to the District Court to limit discovery to two points, really.
Number one, being the involvement, whether there were private individuals involved.
Justice Kennedy: I don't know how the Court of Appeals...
Mr. Orfanedes: and to what extent...
Justice Scalia: can give any advice at all if it says it has no jurisdiction or the case is improperly before it.
Rebuttal of Alan B. Morrison
Mr. Morrison: Well, I think... and also a significant point to be considered in that regard is that the Government did not object to the scope of this, of the discovery that it was... as it was served.
They had the opportunity, they had every opportunity to submit particularized objections, including privileges, but not just privileges, also objections as to scope, relevance, materiality.
The usual long litany of discovery objections that any party is able to.
They declined that opportunity.
The District Court was very careful.
I think he bent over backwards in inviting them to assert objections on several occasions.
They chose not to do so.
So for them to come back...
Justice Scalia: Suggesting that they... they consented to the discovery, but just they did not make specific objections?
Rebuttal of Paul J. Orfanedes
Mr. Orfanedes: They did not make specific objections.
I'm not saying they consented to it.
They were, they were clear in their objections to any discovery whatsoever, discovery that the District Court felt it needed as a means of constitutional avoidance in order to determine, first of all, whether the statute applies.
And secondly, in order to narrow any constitutional issues that it might have to consider if the statute did apply.
Justice Scalia: In any case, they did not avail themselves of the opportunity that the Court of Appeals has clearly given them now to whittle that order down.
Mr. Orfanedes: That's correct.
They have not.
Justice Breyer: But you are... am I correct in thinking your case in the District Court was just a mandamus action, right?
Justice Souter: There is no cause of action under the statute.
And so in order to establish relief on mandamus, you have to show a clearly, clear right to relief and jurisdictional defect, something along that kind.
Justice Stevens: You don't normally file a mandamus action and then get discovery to see whether you are entitled to mandamus.
Mr. Orfanedes: Justice Stevens, we had actually several different counts in our complaint, which included, first of all, we did assert a count under FACA.
That was dismissed.
We also asserted a...
Justice Stevens: The FACA doesn't create a private cause of action.
Mr. Orfanedes: That was ultimately the basis for the dismissal.
Justice Stevens: That's why it was dismissed.
Mr. Orfanedes: But we also had an... an APA claim.
And then ultimately...
Justice Scalia: But you don't... that also has no merit because the Vice President is not an agency, and neither is the group.
Mr. Orfanedes: Well, the reasoning behind the APA claim...
Justice Breyer: The only viable claim you had was the mandamus claim, as I understand it.
Mr. Orfanedes: Well, the APA claim is continuing with respect to the agency defendants.
The heads... I shouldn't say the agency defendants.
Justice Stevens: And they have given you discovery you asked for, if I understand it?
Mr. Orfanedes: Actually, they have...
Justice Stevens: It's only the group itself that refuses to give any discovery.
Justice Scalia: And if I understand their position, if we give you discovery, that's just the same as giving you a victory in the lawsuit.
Mr. Orfanedes: The agency defendants have given us some discovery, but at the same time, they also asserted objections as to executive privilege and deliberative process in answering our questions.
They did not give us any information about what role, if any, independent individuals, private individuals played in the deliberations of the task force.
Justice Scalia: Could you just embellish your answer to Justice Stevens' question a little bit?
And that is, if you, if you get some discovery, and you win your case, what do you get when you win that you will not already have gotten by the discovery?
Mr. Orfanedes: I guess I just want to... is this as a comparison to the discovery that, that was ordered?
Justice Breyer: Whatever the discovery is.
Justice Souter: Whatever the discovery is.
You got enough discovery to win your case, you win it.
Justice Breyer: What do you get then besides a statement saying they were wrong, you win.
Mr. Orfanedes: If discovery is limited to the narrowing that the appellate court suggested, none of that information, I believe, would be something that we would get under the statute if we were to win.
Under the statute, we are entitled to basically the documents of the committee as limited by any properly applied exemptions of FOIA.
Justice Scalia: You are saying you get more discovery?
Mr. Orfanedes: I wouldn't... no, we don't get more discovery.
Justice Scalia: What are these documents that you would get that you would not already have gotten at the discovery stage?
Mr. Orfanedes: Well, the documents the appellate court was talking about, and in addition to interrogatories which we don't get... and actually, at one point the Government actually suggested that discovery take place on the basis of interrogatories.
We wouldn't get any interrogatory answers.
Justice Souter: So you would get documents?
Mr. Orfanedes: We would get documents.
Justice Souter: And what documents would you get?
Mr. Orfanedes: We would get, I believe the statute allows disclosure of all of the documents of the task force subject to the limitations of FOIA.
The documents are produced as if the task force was an agency subject to FOIA, and all the exemptions that FOIA applies, I believe, apply to these documents.
Justice Scalia: So you'd get a broad disclosure is what you are saying?
Mr. Orfanedes: That's right.
I think the discovery as suggested or as narrowed by the appellate court is a much smaller subset of the information we would get if we were entitled to... if we ultimately prevail on the merits of the lawsuit.
There has been a couple of statements with respect to our complaint being based on nothing more than mere unsupported allegations.
That is a false statement, in our view.
In order to support our claims, we are relying first and... first and foremost on the statement in the memorandum creating the document that says the Vice President has discretion to create subordinate working groups.
Then we also attach several statements, acknowledgments by the Government, that describe meetings between task force representatives and representatives of Enron and representatives of other working groups.
I believe the Government itself acknowledged there were at least five such meetings.
We know that the Vice President met with the chairman of Enron, Ken Lay.
The Vice President himself in an interview he gave on Nightline said we met with all kinds of folks, we met with energy groups, we met with environmental groups...
Justice Scalia: When does that... I don't see how that's...
What does that prove?
Mr. Orfanedes: The point is that this shows the involvement of outside...
Justice Breyer: They talked to a lot of people, got a lot of advice, but does that make them de facto members of the committee?
Mr. Orfanedes: Well, that's the question that we are seeking to answer through our discovery.
The point is that this is not an unsupported, these are not mere unsupported allegations.
Justice O'Connor: Well, I'm not sure that's right.
Justice Stevens: Just because you said they talked to a lot of people doesn't really prove anything, it doesn't seem to me.
Mr. Orfanedes: Well, if you put that together, the allegations of the individuals that were met with, with the statement in the memorandum that allows the Vice President discretion to create working groups, we think it does at least raise a significant question as to whether outside individuals were participating in these working groups and participating in the committee as a whole.
In any event, the District Court firmly believes that it needed this discovery in order to answer these questions.
I see my time is up.
Justice Souter: Yes.
Justice Breyer: Thank you, Mr. Orfanedes.
Justice Scalia: General Olson, you have five minutes left.
General Olson, I hope you'll address the point whether you'll, whether you'll have to disclose anything more at the end of the suit than you will under the discovery.
Rebuttal of Theodore B. Olson
Chief Justice Rehnquist: Is there a big difference between what they get under the discovery order and what they would get if they win the suit?
Mr. Olson: Thank you, Justice Scalia.
I was going to address that point because it's been addressed by Justice Souter, Justice Stevens, Justice Kennedy.
What the discovery... and I don't have time to read the interrogatories or the requests for admissions, but those require the production of all information with respect to any contacts at all between any member of the task force or any government employee that assisted with it or any agency...
Justice Scalia: Overall within the scope of the order that the District Court gave?
Mr. Olson: Yes.
Those were the discovery and requests for admissions.
Now, the Court of Appeals didn't refine that.
It said that, well, that's pretty broad, and it should be narrowed down, but it should be whatever is necessary to prove their case.
They thought what was necessary to prove their case was to have all outside contacts.
FACA does not require the production of that degree or that scope of documents.
It has to do with minutes and drafts and things that were actually considered by the committee.
So the discovery is vastly broader than the relief that would be available if FACA existed.
Justice Scalia: General Olson, I thought that the, what the Court of Appeals said is there could be discovery on two issues.
And one was what non-Federal offices participated, and two, to what extent.
Justice Ginsburg: Judge Tattle and Judge Edwards were both pretty clear on that, that that would be the nature of the discovery permissible.
Rebuttal of Paul J. Orfanedes
Mr. Orfanedes: Well, of course.
But that's exactly what those requests for admissions in those interrogatories seek.
All contacts between any member of the committee or any other government employee and any outside person.
And then what Judge Tattle and what... went on to say at page 18-A, that is to say the discovery they need to prove their case.
Justice Souter: The point is it's different, isn't it?
Rebuttal of Theodore B. Olson
Mr. Olson: It's...
Justice Scalia: They want stuff on discovery that has to do with who said what to who.
And if they win, they get a different set of things which are the documents of agendas, et cetera.
Mr. Olson: Well, it's...
Justice Scalia: Is that right?
Mr. Olson: It's different, but it... everything that they have asked for in those requests for admissions and those interrogatories, Justice Breyer, include everything they would get under FACA and a whole lot more.
So... and there is no question about that.
Now, with respect to the subordinate working groups, a point was made with respect to the President's directive, that the President said the Vice President may establish subordinate working groups to assist.
The declaration that's in the file at page 240 of the Joint Appendix specifically says that the Vice President authorized that, but the Vice President did not establish any such subordinate working groups.
And then the declaration goes on to say that there was only a public citizen that was involved in developing graphics and that sort of thing.
And that was the only person that was involved.
No such individuals, the individuals named in the litigation, participated in the working group formulation.
What we are saying here is that the constitutional immunity from discovery that we are talking about here is rooted in the overriding presumption of regularity, which, if repealed in this case, would repeal... if overridden in this case would repeal the exemption under FACA for all government working groups.
And these are exclusive functions, textually committed to the President of the United States getting opinions from his subordinates.
As your question suggested, Justice Breyer, virtually anything that the President might do, asking the Attorney General or the Assistant Attorney General for this or that to formulate something, and they go out to talk to people, that could be a... that would be a FACA lawsuit in a heartbeat.
There is no statute that creates the right that the Petitioners seek here.
There is no, there is no cause of action under FACA, and there is, no, Justice Stevens, no clear remedy, no clear right to which they are entitled to ministerial duty and therefore a remedy.
And they just jumped over the fact that the statute didn't give them the right to bring this case and brought it in the form of mandamus.
Mandamus is no substitute.
It's not appropriate here.
It's a pure circumvention of the statute.
There is, we submit, no such thing as a de facto member of an advisory group under FACA.
FACA was intended to address the creation of de jure working groups where the President would cloak himself in the benefit of public citizens who have come up with this proposal.
It's not, I think your question, Justice Breyer, it's not a FOIA case.
It's not a...
Chief Justice Rehnquist: Thank you, General Olson.
The case is submitted.