Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in No. 03-472 -- 475, Richard B. Cheney v. United States District Court. General Olson.

SOLICITOR GENERAL THEODORE B. 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 so.

As this Court has construed the Federal Advisory Committee Act to avoi -- 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 JOHN PAUL STEVENS: 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 that prevent them from deciding questions unnecessarily?

GENERAL OLSON: I'm not sure I understand the thrust of your question.

JUSTICE STEVENS: Well, you said this is a case about separation of powers, and I wondered - I asked whether or not the authority of the courts is not also involved here, because there is a concern we should have rules designed to prevent us from unnecessarily deciding questions.

GENERAL OLSON: Well, with respect to the -- I'm not sure whether you're 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 is applied here, the Court will not get to the constitutional question, which FACA would inevitably raise if it intrude upon the President's power to obtain opinions from his subordinates and to make recommendations to Congress with respect to legislation.

The --

JUSTICE RUTH BADER GINSBURG: 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. We wouldn't get to the merits if there is no jurisdiction for us to review at this point.

GENERAL OLSONS: That's true, Justice Ginsburg. This fate -- this case fits squarely, we submit, within what the Court decided unanimously in United States v. Nixon, for two reasons.

In the first place, 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 surogate here -- this is the President's authority.

JUSTICE ANTHONY KENNEDY: Well of course, in the Nixon case the President exercised his privelege and that was overruled.

GENERAL OLSON: Yes, Justice Kennedy --

JUSTICE KENNEDY: So it's not -- it's not on all fours in that sense.

GENERAL 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 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're talking about -- when the Court is talking about sep -- important separation of powers questions, the President is in the position of having to defy a court order, risk sanctions of some --

JUSTICE KENNEDY: But you're not defying a court order if you exercise a privelege, or if you assert a privelege.

GENERAL OLSON: With respect, Justice Kennedy, the -- this case -- the separation of powers issue in this case goes far beyond the assertion of executive privelege.

Executive privege is -- 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.

CHIEF JUSTICE REHNQUIST: 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.

GENERAL OLSON: We -- 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 the statute could be construed to create a de facto doctrine, which no court has ever done -- finally done in connection with the 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 the statute, if it were construed any other way, would be unconstitutional.

Construing the statute in that fashion --

CHIEF JUSTICE REHNQUIST: Well, you say construe it narrowly, but nonetheless retain the de facto doctrine?

GENERAL OLSON: No, not deal with it at all. I mean, the -- the statute itself, we'd 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, of explicitly excluding a -- a committee that's formed of all government employees.

And, as construed by the Court in that case, the either -- the words used in the stat -- 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 ANTONIN SCALIA: So what if it's -- what if it's util -- what if the manner in which it's utilized is that, in fact, outsiders -- non-government employees -- were actually given a vote? That the -- when the committee took a vote there were some non-government employees who were counted?

It --

GENERAL 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 this statute, to prohibit or regulate ex-party communications between the Executive Branch and members of the public.

JUSTICE SCALIA: This is -- this is more than ex-party communications. It's that the committee is, in fact, as utilized, not a committee composed exclusively of government employees.

That -- that the -- All I'm saying is that 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 non-government employee?

Why would that be such a terrible --

GENERAL OLSON: Well, I'm going -- 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 GINSBURG: General Olson, would you clarify why we are dealing with the merits? I thought, and correct me if I misunderstand this, that the merits would have to be resolved in the first instance by the court below.

If we find that there is jurisdiction, there -- 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?

GENERAL 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, the -- 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. v. Armstrong is one case -- the Court consistently, absent clear evidence to the contrary, accords Executive Branch action --

JUSTICE GINSBURG: But -- but you would still be asking us to resolve the merits in the first instance, not to review any lower court decision because they -- they said there ought to be discovery first.

GENERAL OLSON: Well, but we're submitting that the discovery itself violates the Constitution, violates FACA as properly construed --

JUSTICE GINSBURG: All discovery, not -- not -- you're not --

GENERAL OLSON: Yes, because the --

JUSTICE DAVID H. SOUTER: Yes, but isn't that simply the -- the basic argument on the merits again? The reason -- the reason, I think you're saying, the reason we can't have discovery is because the whole statute is -- is unconstitutional as applied to the President.

GENERAL OLSON: Unconstitutional if it -- if applied in these circumstances.

JUSTICE SOUTER: Yes.

GENERAL OLSON: It may be construed --

JUSTICE SOUTER: Now, if -- 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 a court of first instance, on the merits, then it seems to me that the jurisdictional question boils down -- to me, at least, boils down to this:

Why should we accept your position on -- 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.

GENERAL OLSON: Well, there's 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 --

JUSTICE SOUTER: But you never came down -- oh, I realize that, I've read the orders. But you never came back, or the government never came -- came back, and said, well, that order is too broad because, and we think it could be allowed to this extent, and -- and there was no, as I understand, there was no process of trying to refine the discovery order down to anything beyond the generalities that we have on the record.

GENERAL 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 petitions to respond to the discovery, to reply to non-privileged discovery requests, and assert Executive Privilege which we're saying --

JUSTICE SOUTER: And -- and you did not exert any executive privelege?

GENERAL OLSON: No, we did not.

JUSTICE SOUTER: So we don't know what might be subject to Executive Privelege and sustained, perhaps?

And what would not be? And it's the what would not be that would raise the constitutional issue that you're trying to raise. And it seems to me that until we know exactly what that is, there's a pretty good argument that the final judgment rule should not be subject to exception at this point.

GENERAL OLSON: Well, I think that there's 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 -- 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.

CHIEF JUSTICE REHNQUIST: Was the district -- was the district court's un -- discovery order unconditional?

GENERAL OLSON: Well, it was -- I don't know what you mean by un --

CHIEF JUSTICE REHNQUIST: Well, I mean, did it say, you know, the government must produce thus and so, thus and so, thus and so?

GENERAL OLSON: Yes, it did, Mr. Chief Justice, although it did say that the -- the government could assert priveleges with respect to burden or Executive Privelege 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 --

JUSTICE GINSBURG: But now we're dealing with the situation after two -- the two justices -- judges on the court of appeals both said, this is too -- this discovery order was too broad, 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.

GENERAL OLSON: Inevitably what would have happened, because what the court of appeals said -- and this is at petition appendix 18a of the court of appeals decision, is that however refined the district order -- district court's order would be, they would -- 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's no clear evidence to the contrary here, Justice Ginsburg.

All there is is a pure, una -- unadorned allegation which the -- which the respondents say they get from media reports, that there were contacts, nothing beyond that, but what they would need to prove is -- to prove their case is precisely what the district court was going to allow them to utilize.

JUSTICE KENNEDY: Well, can we get to the jurisdiction point. Why is it that you went -- that you're justified in going to the court of appeals? Because there's a new exception to the colateral order doctrine? Or because you're seeking mandate?

GENERAL OLSON: Both, Justice Kennedy.

JUSTICE KENNEDY: Then what's the exception to the -- is it -- is there something new under Cox or does it come under one of the four Cox exceptions?

GENERAL OLSON: This is -- this fits squarely within Nixon, when -- what 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 in -- merely to trigger the procedural mechanism --

JUSTICE KENNEDY: Well, we've already discussed that. The -- he didn't -- the Vice President in this case did not exercise his privelege.

GENERAL OLSON: But -- it -- this --

JUSTICE KENNEDY: It isn't close to being held in contempt --

GENERAL OLSON: But what -- what we're 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?

GENERAL OLSON: When the -- when the --

JUSTICE KENNEDY: If it involves the Vice President it's different?

GENERAL OLSON: It certainly does when it involves the President or the Vice President and core constitutional functions. And U.S. v. 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 -- 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 a district court --

JUSTICE BREYER: But you wouldn't have to do that if you -- if you just asserted Executive Privelege as to each discovery request that you thought would be burdensome.

And then, if that's granted you have no problem, and if it's denied, you immediately come up on that.

GENERAL OLSON: Justice Breyer --

JUSTICE BREYER: What -- why not?

GENERAL OLSON: We believe that it's much broader than Executive --

GENERAL OLSON: I know that's your legal argument, and you --

GENERAL OLSON: Well, that's the --

JUSTICE BREYER: -- and you may be right about that. But assuming you are right about that, you bring up the broader issue on 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 privelege as to each individual --

GENERAL OLSON: Be -- because the act of forcing the President to invoke Executive Privelege 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 --

JUSTICE SANDRA DAY O'CONNOR: Well let me --

GENERAL OLSON: To obtain opinions --

JUSTICE O'CONNOR: 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 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 this statute is constitutional?

GENERAL OLSON: Potentially, Justice O'Connor --

JUSTICE O'CONNOR: Why didn't the government do that --

GENERAL 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 O'CONNOR: But wouldn't that have given the courts a chance to go directly to the issue of whether the statute is constitutional?

GENERAL OLSON: Well, we submit that what the government did here was try to work out the const -- delicate constitutional problems that were involved here: the balancing of the Executive's perogative 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's a denial of a motion to dismiss.

CHIEF JUSTICE REHNQUIST: I take it, General Olson, that -- from the rest of your argument the -- the traditional Executive Privelege doctrine would not cover all of the constitutional issues that you think exist here.

GENERAL OLSON: That's -- that's precisely correct, Mr. Chief Justice.

The forcing of the President to submit to litigation and discovery, which would -- which, if permitted in this case, could be in any case comprable 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, Mr. President, come into court and claim Executive Privelege.

JUSTICE SCALIA: What if --

JUSTICE BREYER: I see that -- I see that, but that's an argument which you made in response to my question, which is an argument on the merits.

And I want you to focus on the fact, 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's your response to the fact that you could get your interim appeal, or at least preserve yourself from harm, if you'd asserted Executive Privelege to the individual bits of the discovery order with which you disagreed?

GENERAL OLSON: There's two answer to that, one of which the Chief Justice suggested in his question, Executive Privelege 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 Privelege, and it is the process itself -- more importantly than that, it is the process itself, of submitting -- as it would be if someone -- if Congress had applied this law, 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 who they -- information with respect to who they talked to.

JUSTICE KENNEDY: Well, but, Mr. -- Mr. Olson, you know better than most the dynamics of -- most attorneys, the dynamics of the discovery system.

I hear in your argument echoes of every discovery dispute I have ever listened to.

GENERAL 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 they have under the Constitution.

Every other discovery dispute that I've experienced, and I submit this Court has experienced, except for perhaps U.S. v. Nixon, maybe another case, did not involve those circumstances.

This is at the core -- this puts the President, in order to challenge the constitutionality of a process that's invasive to fundamental presidential perogatives and responsibilities, into court to defend himself, notwithstanding the -- the questionable constitutionality of the statute that triggers it, that mandamus may not be brought against the Vice President, which is the -- which is -- the Federal Advisory Committee Act, it's worth mentioning, does not create a private right of action.

The A -- APA did not create -- 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 GINSBURG: Why did the government turn over 36,000 pages of paper from the agencies that were also 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?

GENERAL OLSON: There are several answers to that. One is 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. Arguments like that --

JUSTICE SCALIA: Those documents that were turned over were, as I recall, documents that would have been available under FOIA. Is that right? And only -- only those?

GENERAL OLSON: That's the -- Yes, Mr. Justice Scalia, they would have been arguably available under FOIA and they were produced under FOIA.

JUSTICE GINSBURG: But you didn't make the -- you didn't make the argument that no discovery -- you -- you are very clear about that.

No discovery is appropriate under this statute. 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.

GENERAL OLSON: There -- there was more than one action, Justice Ginsburg. There were several FOIA actions brought against the various different departments.

JUSTICE GINSBURG: But this -- specifically these pages, that had been previously disclosed to other requesters under FOIA. The request in this case was made to them under the FACA?

GENERAL OLSON: Yes, but the documents having already been produced and made available to the public under FOIA, it seemed to the government that it would be foolhardy and unnecessarily confrontational, and of no purpose -- would serve no purpose whatsoever to withhold producing another set of those documents.

Again, this is an effort -- the effort --

JUSTICE STEVENS: General Olson, would you clarify one thing for me? Were these documents produced by agencies or were they produced by the Energy Policy group?

GENERAL OLSON: They were produced by agencies.

JUSTICE STEVENS: So there's been no discovery at all from the policy group. And you claim, of course, that they're totally exempt under the plain language of the statute.

GENERAL OLSON: Yes, and Mr. Chief Justice, if I may reserve the balance of my time?

CHIEF JUSTICE REHNQUIST: Very well, very well General Olson.

Mr. Morrison we'll hear from you.

MR. ALAN MORRISON: Mr. Chief Justice, and may it please the Court:

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 a picture of having been backed into a corner. They claim that if they do not obtain immediate appelate 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 the United States v. Nixon. The court of appeals correctly distinguished that case and said that under neither mandamus or the collateral order was review proper.

The petitioners --

JUSTICE SCALIA: The court of appeals based that, as I recall, on the fact that in Nixon Executive Privelege had been asserted, right?

MR. MORRISON: 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 Privelege 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 SCALIA: I'm surprised to hear that. I was going -- I was going to talk to you about Executive Privelege, because I thought that your briefs did rely on the fact that Executive Privelege was not claimed, and that doesn't seem to me a very significant factor.

MR. MORRISON: I -- I thought I had been pretty clear in my brief saying that Executive Privelege was certainly something that could be claimed down the road. We certainly would -- the district judge had not precluded that from happening.

But, as far as we were concerned --

JUSTICE SCALIA: It should make not difference to the outcome of this?

MR. MORRISON: It makes no difference. It makes no difference.

JUSTICE SOUTER: But there's -- there's an interim position in which one -- one would say, well, it makes a difference to this extent: that until the Executive Privelege has been claimed, and has been ruled upon, the extent of -- to which they have a plausible separation of powers argument is not clear.

I mean, we could take that position, I take it you would agree?

MR. MORRISON: That would require accepting the notion that -- that everyone else that they can -- that 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 SCALIA: It would also require acceptance of the position that Executive Position is a definable doctrine, only applicable to certain matters, and that it is the function of this Court to decide what it can be asserted for and what it can't be asserted for.

And that is not my view of Executive Privelege. I think Executive Privelege means whenever the President feels that he is threatened he can simply refuse to comply with -- with a court order.

And the same thing with Congress. And it -- 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 on my powers, I will not do it. And after that it's a struggle between -- between two -- two branches.

And if you view Executive Privelege that way, forcing him to assert Executive Privelege is -- is really pushing things to a -- to an extreme that should not very often occur in this republic.

MR. MORRISON: Well, leaving aside the interpretation of United States v. Nixon as to whether it -- that decision agrees with Your Honor -- Honor's interpretation, we don't have to get to that issue in this case.

And -- and the gov --

JUSTICE BREYER: Because -- I mean, I don't want to delay this, but to me this is important. Assume that their interpretation of the statute is completely right. Assume that.

MR. MORRISON: Yes.

JUSTICE BREYER: I know you don't want to, but for argument's sake. Then what they're really asking for is a separate exception from the collateral order -- I mean, you know, a separate exception that allows them, the Vice President, the President and nobody else, to take an appeal from discovery.

MR. MORRISON: Well --

JUSTICE BREYER: Now, Executive Privelege in my mind came in by asking -- 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 for -- that would permit an appeal?

MR. MORRISON: Well, I don't read the government's brief as being that narrow, but to the extent that what they're 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 was going to take place.

That that was the time in which the government should have taken an appeal if they claim some sort of immunity like --

JUSTICE GINSBURG:: You can't appeal from the denial of a motion to dismiss, that's really interlocutory.

MR. MORRISON: Well, your honor. The notion that there is a special kind of immunity from discovery of the President and Vice President in 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 auto rule. I disagree with the merits of that, but if that's their argument, that's when they should have taken the appeal.

JUSTICE KENNEDY: I wonder about that. I can see you coming up here and saying that everyone knows that the motion to dismiss was denied and is not interlocutory and there's 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 SCALIA: Discovery order. That's significant. The mere denial of the motion to dismiss, did not automatically determine that there would be a discover order. 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: So that that is a new injury 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 --

CHIEF JUSTICE REHNQUIST: But ordinarily, that would be summary judgement. Not motion to dismiss. Motion to dismiss, just deals with a pleading, you're not talking about discovery at that time.

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 affadavit did not come in for three months later.

JUSTICE STEVENS: Then why wasn't that the end of the case? Because as I understand it, discovery is just what you want it to be, end of the case.

MR. MORRISON: No, Your Honor.

JUSTICE STEVENS: What -- what relief can you get if you win the lawsuit?

MR. MORRISON: Well, if your honors will look at --

JUSTICE STEVENS: Tell me what relief you'll get, if you win the lawsuit.

MR. MORRISON: We can get a declaration that it was, that de facto had to apply, we then get access to all the drafts --

JUSTICE STEVENS: So can you then get discovery?

MR. MORRISON: No, Your Honor. What we get -- some of the things --

JUSTICE STEVENS: Do you get more discovery? What do you get if you win the lawsuit? That's the thing I really haven't been understanding.

MR. MORRISON: We get copies of all the papers that were exchanged in the advisory committee process --

JUSTICE STEVENS: Can you not ask for those in discovery?

MR. MORRISON: We have asked for discovery requests, which the government contends are very broad and could include some of those things. Our discovery plan --

JUSTICE STEVENS: And are they right?

MR. MORRISON: They could be interpreted as being right, but not in light of what the district court said in its order of 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 --

JUSTICE STEVENS: What is this de facto officer? Where does that come from?

MR. MORRISON: It comes from a case that was decided in the DC Circuit in 1993.

JUSTICE STEVENS: It did not involve this particular exception from the factor though.

MR. MORRISON: Yes, it did your honor.

JUSTICE STEVENS: It did not involve a committee composed of entirely government employees.

MR. MORRISON: Oh, yes it did your honor. 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 STEVENS: Yes, I understand. But, 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 STEVENS: And they were defined, identified, in the order of finding the committee.

MR. MORRISON: No.

JUSTICE STEVENS: The working groups. 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 that 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 has never been allowed to pass on that particular issue.

CHIEF JUSTICE REHNQUIST: 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 had'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 are prohibited from saying the Court of Appeals' de facto doctrine is wrong?

MR. MORRISON: I didn't say prohibited your honor, I said in the exercise of your disgression 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 the Court of Appeals wrong on that? The argument being. That this is not a discovery statute, this is not an ex parte communication statute, 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 every lower level official in government when he is creating legislative policy, from getting on the phone and calling up whoever he wants. You understand that argument. And I want your response.

MR. MORRISON: Two responses. First, to some extent it is an open government statute because part of the relief under FACA is getting access to all documents 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 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 SCALIA: That would require voting.

MR. MORRISON: Not necessarily your honor.

JUSTICE SCALIA: I've always been puzzled by that in your briefs. To participate in the same manner as other committee members.

It seems to me that the eseence of being a committee member is having a vote in the outcome, so it seems to me, the only discovery you would need, is discovery as to whether anybody who is not a government employee voted.

MR. MORRISON: That your honor, I suggest is a question of law as whether voting is a requirement. We believe that if outsiders participated in the marking up of drafts, they had input into the drafts, particularly at the sub-group level, even though they had no formal vote --

JUSTICE SCALIA: Why is that? If I bring somebody else from my agency with me, I expect all of these Cabinet members did not come to these meetings alone, they certainly had assistants with them.

MR. MORRISON: They did.

JUSTICE SCALIA: Were those assistants, members of the committee? Certainly not.

MR. MORRISON: They didn't lose the exemption your honor because they were full-time government employees.

JUSTICE SCALIA: I'm not asking whether they lost the exemption, 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 advice, I bring a private employee with me to give me advice. Suddenly, that 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 is well aware of this problem and has decided that it's wanted to have a very narrow exception.

At least it's an arguable basis. And we are now here on an interlocutory appeal without any facts in the record as to whatsoever as to how these committees operated, how the subgroup operated. They may have had a vote at the subgroup level.

JUSTICE STEVENS: What do you say about the presumption that high officials of the government obey the statutory officials that they are supposed to follow?

MR. MORRISON: Well.

JUSTICE STEVENS: You don't have any key information or belief that the people who were said to be appointed were not appointed do you?

MR. MORRISON: They were appointed. If I may your honor, quote from the staff directory affadavit which appears 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 --

JUSTICE KENNEDY: That's all you'd get if you won the suit? It goes back to Justice Stevens question. 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 had won the suit.

MR. MORRISON: Your honor, we would get properly reigned 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 KENNEDY: 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 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 GINSBURG: Only if the District Judge enters a default judgment, and that's just one of many options. The district judge isn't required to take that.

MR. MORRISON: No, that is correct. The question is should we try to anticipate that the district court -- district judge will do --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Morrison. Mr. Orfanedes, we'll hear from you.

MR. PAUL J. 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 petitioner's motion to dismiss both as a matter of statutory construction and consistent with circuit precedent and separation of powers.

CHIEF JUSTICE REHNQUIST: Well that surely is one thing that's not before us, isn't it. Is the District Court's denial of the motion to dismiss.

MR. ORFANEDES: Well, the government --

CHIEF JUSTICE REHNQUIST: It's not appealable.

MR. ORFANEDES: Well, 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 an improper --

JUSTICE BREYER: What they're arguing that it's not before us. What their arguing is, is that this statute doesn't apply. So therefore there is no discovery.

This statute isn't one under which you can go behind the certification of the President, the Vice President, et cetera. We both read their briefs.

MR. ORFANEDES: I think that's indistinguishable from arguing --

JUSTICE BREYER: Ok, well then go ahead and make the argument.

MR. ORFANEDES: The District Court ordered discovery because it believed it was necessary in order to avoid the Constitutional issues that the government is raising in their briefs.

In denying the motion, the Court properly applied what was circuit precedent at the time and is circuit precedent, the Apps case. Allowing for this de facto membership doctrine that we've talked about.

The District Court thought that if discovery yielded information that would show there was no involvement of private individuals in the Task Force, then there would be no reason to even reach the Constitutional issues.

JUSTICE SCALIA: Involvement of private individuals in the task force, does not equate this with membership of private individuals in the task force. And I wonder what your view is about the question I asked to Mr. Morrison.

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 Apps case, that the district court was relying on, that the circuit court was also --

JUSTICE SCALIA: Well that case may be wrong. What is it that makes you a de facto member? I assume it's the same thing that makes you a member. That is the power to determine the action the committee will take. That is the power to vote.

MR. ORFANEDES: I think it's not looking just as voting. But anything that functionally distinguishes the members, the de facto members from the actual.

JUSTICE SCALIA: There is. The vote. Let's assume that's the only thing that distinguishes them. Isn't that enough?

MR. ORFANEDES: It could be a vote, but it could also be more than that. In this particular instance --

JUSTICE SCALIA: If it's more than that, you're not talking about de facto membership, you're talking about de facto participants, and that's a different --

MR. ORFANEDES: 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 BREYER: Exactly. Now their problem with your interpretation of the statute, I take it is the following. Forget the Vice President. You are Assistant Secretary of AntiTrust, you're Assistant Secretary of HHS in charge of drug policy.

You're 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 assign the same thing, try to do the same thing under your interpretation of the act. Everyone 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 have possibly intended in this statute to have created that circumstance, putting government in a cocoon when it develops legislative policy.

Now I've overstated what they said. But I'm trying to get a response to you as what I take as 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 Congress would have created such a statute and I don't think they did create such a statute.

JUSTICE BREYER: Because?

MR. ORFANEDES: The case law that has interpreted the statute and the statute itself requires a certain degree of formality, structure and continuity to an advisory committee before the requirements of the statute begin to apply.

Circuit Court precedent including the Nader v. Barudi case, that I think all the parties have cited in their brief, held exactly that. That there has to be, that there cannot be ad-hoc committee meetings, 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. It talks about an endpoint to the committee as well.

JUSTICE BREYER: Now, the Attorney General of the United States, turns to the head of the AntiTrust division and says I want a legislative proposal about Web Palmerine 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 may trigger the questions. I think there's one thing 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 disgression to create subordinate working groups. There is nothing in that document that limits subordinate working groups to consist of only private employees --

JUSTICE BREYER: 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. If you remember my first question it had to do with the cocoon.

MR. ORFANEDES: That's right.

JUSTICE BREYER: Alright, now what's your response?

MR. ORFANEDES: I think again, what becomes important is the membership of that task force. And if the idea behind creating that task force allowed for in the Apps 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 despositive 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? Well that seems to indicate they are under somebody. And I gather what they're under is the committee.

MR. ORFANEDES: Well that could very well be. Whether they reported to the committee as a whole or the executive director.

JUSTICE SCALIA: Well, that's fine, 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 KENNEDY: Well if the statute requires disclosure of all these things. At the end of the day, at the final order and discovery when they're 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 this suit and we should hear the merits of it now.

MR. ORFANEDES: I don't think it is the essence of this suit. I think the appellate court gave 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: Well I don't know how the Court of Appeals can give any advice at all if it says it has no jurisdiction. The case is improperly before it.

MR. ORFANEDES: Well I also think a significant point to be considered in that regard is that the government did not object to the scope of the discovery as it was served.

They had every opportunity to submit particularized objections including privileges but not just privileges, also objections as to scope, relevance, materiality. The usual long littany of discovery objections that any party is able to.

They declined that opportunity. The district court was very carefully, I think he bent over backwards in inviting them to assert objections on several occasions. It chose not to do so. So for them to come back --

CHIEF JUSTICE REHNQUIST: You are not suggesting that they consented to the discovery, but just they did not make specific objections.

MR. ORFANEDES: They did not make specific objections. No I'm not saying they consented to it. 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 the statute might have to consider if the statute did apply.

JUSTICE SOUTER: In any case, they did not avail themselves of the opportunity the Court of Appeals has clearly given them now to widdle that order down.

MR. ORFANEDES: That's correct, they have not.

JUSTICE STEVENS: But you're -- Am I correct in thinking your case in the District Court was just a mandamus action right? There's no cause of action under the statute.

And so in order to establish a relief on mandamus you have to show a clear right to relief and jurisdictional defect, something along that kind. You don't normally file a mandamus action, then get discovery to see whether you're entitled to mandamus.

Mr. Orfanedes: Well, Justice Stevens we had actually several different counts in our complaint which included a first of all, we did assert a count under FACA that was dismissed. We also asserted --

JUSTICE STEVENS: You know FACA doesn't create a private cause of action.

MR. ORFANEDES: That was ultimately the basis for the dismissal.

CHIEF JUSTICE REHNQUIST: That was why it was dismissed.

MR. ORFANEDES: We also had an APA claim and then, ultimately --

JUSTICE STEVENS: 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 was --

JUSTICE STEVENS: Well 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 the discovery you asked for if I understand it.

MR. ORFANEDES: Actually, they have given us --

JUSTICE STEVENS: It's only the group itself that refuses to give any discovery 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, at the same time they also asserted some objections as to executive privilege and deliberate process in answering our questions.

They did not give us any information about what role, if any, independent individuals, private individuals, played in the deliberation of the Task Force.

JUSTICE SOUTER: Could you just embellish your answer to Justice Stevens' question a little bit and that is, 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 was ordered?

JUSTICE SOUTER: Whatever the discovery is, you've got enough discovery to win your case, you win it. 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 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 to any properly applied exemptions of FOIA.

JUSTICE SOUTER: You're saying you get more discovery?

MR. ORFANEDES: I wouldn't -- no, we don't get more discovery.

JUSTICE SOUTER: 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, in addition to interrogatories which we don't get, and actually at one point the government suggested that discovery take place on the basis of interrogatories. We wouldn't get any interrogatory answers.

JUSTICE SOUTER: So you'd 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 subjects to the limitations of FOIA. The documents are produced as if the task force was an agency subject to FOIA and all of the exemptions of FOIA applies, I believe.

JUSTICE SOUTER: You'd get a broader disclosure is what you're 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 prevailed on the merits of the lawsuit.

There's been a couple of statements with respect to, our complaint being 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 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, acknowlegements 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 that 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 that we met with all kinds of folks, we met with energy groups, we met with consumers.

JUSTICE SCALIA: What does that prove? I don't see how that --

JUSTICE STEVENS: What does that prove?

MR. ORFANEDES: That point is that this shows the involvement of outside --

JUSTICE STEVENS: 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're seeking to answer through our discovery. The point is that this is not an unsupport -- mere unsupported allegations --

JUSTICE STEVENS: Well, I'm not sure that that's right.

Just because you said they talked to a lot of people doesn't really prove anything, it doesn't seem to me.

MR. ORFANEDES: If you put that together, the allegations of the individuals that were met with, with the statement and 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 whole.

In any event, the District Court firmly believes that it needed the discovery in order to answer these questions. I see my time is up.

CHIEF JUSTICE REHNQUIST: Yes, Thank you Mr. Orfanedes. General Olson you have five minutes left.

JUSTICE SCALIA: General Olson, I hope you'll address the point whether you'll have to disclose anything more at the end of the suit than under the discovery. Is there a big difference between what they get under the discovery order and what they would get if they win the suit?

GENERAL OLSON: Thank you, Justice Scalia. I was going to address that point because it's been address by Justice Souter, Justice Stevens, Justice Kennedy. And I don't have time to read the interrogatories or the request 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 KENNEDY: Those are all within the scope of the order the district court gave?

GENERAL OLSON: Yes. Those were the discovery and the request for admissions. Now, the Court of Appeals didn't refine that. It said 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 in committee. So, the discovery is vastly broader than the relief that would be available if FACA existed.

JUSTICE GINSBURG: General Olson, I thought what the court of appeals said is that there could be discovery on two issues and one was what non-federal offices participated and two, to what extent.

Judge Taitel and Judge Edwards were both pretty clear that that would be the nature of the discovery permissible.

GENERAL OLSON: Well, of course. But that's exactly what those requests for admissions and those interrogatories seek. All contacts between any member of the committee or any other governmental employee and any outside person.

And then what Judge Taitel and what Judge Edwards went on to say at page 18A, that is to say the discovery, they need to prove their case.

JUSTICE BREYER: The point is it's different, isn't it? They want stuff on discovery that says who said what to who. If they win, they get a different set of things which are the documents, the agenda, et cetera. Is that right?

GENERAL OLSON: It's different, but everything that they've asked for in those requests for admissions and interrogatories, Justice Breyer, include everything they'd get under FACA, and a whole lot more.

So, and there's no question about that. Now, with respect to the subordinate working groups. A point was made with respect to the President's directive, 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 did not establish any such subordinate working groups and then the declaration goes on to say that there was only a public citizen 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're saying here is that the Constitutional immunity from discovery that we're 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 would be a FACA lawsuit in a heartbeat.

There is no statute that creates the right that the petitioners seek here, there is no cause of action under FACA and there is no, Justice Stevens, no clear remedy, no clear right to which they're entitled to ministerial duty and therefore a remedy.

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 is 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 prohibition of de facto members.

CHIEF JUSTICE REHNQUIST: Thank you General Olson. The case is submitted.