represent a supposedly unlimited government surveillance power and an unlimited ability by congress to end it and when to invade the privacy of any american defendants refused to release the subpoenas seeking a private phone records of various individuals including even a reporter yet all other subpoenas issued as a part of their investigation are in this is important are publicly available on the committee's website but the fed has refused to release the ones that we are seeking we believe the public has a right to know why as a part of the his investigation congressman schif secretly subpoena the phone records of a number of private citizens from telephone companies he did not provide notice to these individuals in advance their phone records were being sought he did not subpoena the phone records directly from the citizens instead he subpoenaed the folk up unease for their records preventing any opportunity for the private citizens to seek a court review would happen in any other case and where the government is taking yet this kind of information about any citizen mr peterson let me ask you one thing and that is i can't find anywhere in the record in the you know there's a least a half dozen subpoenas that went out concerning different people to potentially different and let me correct you concerning phone numbers that's what i'm trying to tie down and we don't have the record anything that i can find other than the on line report which in footnotes gives the dates of subpoenas for phone numbers not people know we don't know what's been said but right is there any is there any evidence that the subpoena said we want joe blow's phone records from what i can tell they said by their by name for he went to a t n t and asked for the president's lawyers you know records rudy giuliani by name they haven't disputed i mean again we haven't seen the subpoenas and that's really part of the point here is we would like to see this because that's what this is about and i also agree that the facts have not been fully developed here you get the case was dismissed on a motion to dismiss and we're here asking legislative that usually it would be here on her typically that that's what the case law tells us it has not always however i mean there are examples starting with kilborne leading to be protected so that so that in this case we believe we've certainly leave more than adequately alleged that that is not a legislative act and therefore  any you know in for the net purposes of the next case a subpoena is going to be fun i mean they otherwise there will be no limit to what committee chairman on their own volition you know make me go looking for their they just because they find it of interest to at that moment there has to be some restraint has to be some limit in the courts up to this point have said that we would not we're we're certainly fine with having factual record for more fully developed i mean that is what we're asking for is to have this case sent back down and have the facts fleshed out i mean all you have the for you by releasing these subpoenas all of which all the others of which already been released on their own website their public records their official records because they were prepared finalized perceives there for their final official records and the common law right of access exists to have to disclose this type of information again all the  on their website we have more than in the public interest is served under the common law right of access by making this kind of information available and the defendants theory at a minimum there is a factual question as to wethers subpoenas are proper why did they go to the phone companies and not to the individuals why did they do this back door approach why did they need to have reporters phone calls around the speech or debate clause and that has been made clear by this court on any number of occasions most recently in the courts of pick up pinion in rango versus boehner where this court said specifically that the mere allegations of violations of house rules federal laws or even the constitution is not sufficient to overcome the absolute immunity afforded by the speech or debate clause of the constitution that's essentially what we have alleging that because they think mr schiff in the committee violated house rules the constitution or other federal laws that they are entitled to bring the committee into court and to get a court order to produce various legislative documents that simply exactly what the speech or debate clause was intended to prevent and protect in the supreme court and this court have been very clear about that fact in virtually every case that has been decided raising the cause as a defense wrangle versus boners the most one of the most recent examples same thing in other cases including surely st it was mcclellan eastland versus u s servicemen find and a whole host of others that we've cited and in our brief at the end of the day this is a case about the production of various legislative documents the subpoenas themselves regardless of whether all or some or even any of them have been posted on the committees website remain legislative documents they remain protected by the speech or debate clause and the plaintiffs simply cannot bring the committee and its chairman into court and require a court order that we produce them this court made clear in brown and williamson that the committees have a right to protect their own legislative records and that's what the committee has chosen to do here it has particular reasons why it chose to release the documents that it chose to release white included the information included in its final report and it has opted not to publicly release these particular subpoenas primarily for the reason the judge henderson mentioned which was that the subpoenas themselves are to rd party telecommunications released was the information that it obtained making the connections between various phone numbers and individuals that it was able to make based on the information that it obtained well let me ask you about that mr adelman i'm looking at page forty four of the report just as an example and the footnote forty nine well here's the sentence in the report phone records show that in the forty eight hours before publication of the hill opinion piece mr parness spoke with mr solomon footnote forty nine footnote forty nine sites eighty n t document production and then  t and then the committee's initials and i read the next figure to be the date that it issued that is  the wording there i think was very deliberately chosen by the committee again what the committee was doing at the time was that it was engaged in a full fledged both oversight investigation of joshua convention as well as an impeachment inquiry as the speaker of the house made clear several days earlier on september th well i'd like to ask you about that because the impeachment resolution didn't come until october st the resolution that was adopted by the interest sixty doesn't come until october but that's not in fact an impeachment resolution in i believe the sense that you're thinking of it as what that was was a proceed her all resolution that allowed certain procedures by the committees that followed it to occur there doesn't need to be under house precedent in practice an impeachment resolution prior to an investigation or an inquiry into impeachment beginning and there wasn't in and sixty laid out for the committee on intelligence some requirements about how it was to go about holding public hearings and it also required the committee to produce the report that it eventually produced referring recommending excuse me to the judiciary committee whether or not the judiciary committee should draft and approve articles of impeachment interesting sixty set out for the house and for the committees those procedures that it was to follow from that point forward but the inquiry underlying that the impeachment inquiry and the oversight related to the intelligence community the whistleblower and the activities going on in ukraine were all well established predated that in resolution and were well within the committee's jurisdiction at the time it issued this particular subpoena but no are you so you're not relying on the speaker's i guess announcement in early september that the committees are to proceed no your honor i believe we're doing both which is to say we believe that both parts of the gravelle test related to whether speech or debate or a political were satisfied here  st of all the underlying oversight and investigation that had been taking place prior to the speaker's announcement satisfy the st part of the rebel task because they are an intricate part of the deliberative and communicate a process of the of the house and then the nd part of the test which is the part related to the impeachment inquiry because impeachment is a matter specifically delegated by the constitution to the house is also satisfied so we are in fact relying on both so even if you were to find that the impeachment inquiry or was entirely based on the resolution that comes later we don't think that changes the ultimate outcome here because the underlying investigation that was ongoing as of september th when this particular issued was a legitimate legislative act there was a legitimate legislative purpose and all of the other requirements are satisfied so in that sense we're relying on both but not for a moment if i go back to china or some to talking about the language in the report about the phone record the subpoena in the phone records what the committee was doing at the time was it was interviewing witnesses conducting depositions and reviewing materials that people were providing to it even though the administration at the time was not allowing any official records to come forward so as the committee was taking people's depositions and acquiring information through oral recollections and people's best memories they were left with several significant gaps as to what people couldn't remember as to what people thought might have happened when this might have said that they thought that they took a phone call from a particular individual a particular time but since they hadn't been given access to their records they weren't able to state that  committee was doing was using the phone records subpoenas to fill in the gaps from the information that it had and that was its purpose its purpose was not to invade the privacy of an the individuals it was simply to corroborate and fill those gaps that it was getting from the oral recollections of the witnesses and the other documents that it was obtaining so there is no question here in our mind that these subpoenas satisfy the legitimate legislative purpose to us but as we said at the outset that's really not of any significance here because  what's going on here is judicial watch is attempts to bring the plane to bring the committee and the chairman before the court in a manner that it's simply not permitted to do cases the mere fact that judicial watch is asking for the case to be remanded so that further factual developments can be had is itself what the clause was intended to protect against and what this court has said on numerous occasions is that the clause protect the house and its committees and its members from having to do which is to defend itself in little ation defend itself from having civil suits brought against it and ultimately here to provide to defend itself from having court ordered production of documents that it simply has already made its own decision not had in certain instances and we've seen this in the past had one of the telecommunications companies challenge the validity of the subpoena or sought to refuse producing the records there could have been you know contempt that would have allowed this court to review and adjudicate that question what we do know for certain is that the question can't be brought before the court in a manner that is being brought before it here which is as a suit against the committees and certainly has a suit here under the common law right of access which clearly doesn't apply to these particular documents because the constitutional privilege precludes the application of that common law right now what's sure is so already from what you just said i have case that holds because there haven't been cases litigated against congress for the common as applying for the common law right of action in this court there was the case in the lower court which found that those the nd prong requires balancing the right of the public to know things versus whatever the governmental right is which in this case is a speech or debate i don't i don't think that question has ever been raised before i am unaware of a case that raises that question as well judge henderson and we think not only can you not actually get past the  speech or debate immunity in this case but even if for some reason you concluded that you could i don't think that the subpoenas in question here for the reasons that we discuss in our papers that the plaintiffs have satisfied the common law right of access standard subpoenas themselves don't meet the definition of a public record as the court has defined it in this instance and so we don't think that even if you could get that far which we don't think that's a you can let's say they're public record investigative sources and methods and its decisions about its investigative process would need to be be protected but also there's likely to be substantial privacy interests on the part of the many people whose numbers phone numbers may have been sought as part of this inquir releasing that information would expose those personal details in might actually you know cause more damage than what the committee has you know very carefully elected to make public and what it has not so i don't think that that was those interests are outweighed by the claims by the plaintiffs that there's this general right to know the report makes very clear exactly what the committee did it and lays out its evidence that it used to rely upon and to recommend to the judiciary committee that article of impeachment be drafted as you well know those articles were drafted approved by the court and tried by the senate so i don't know that there's much of an interest beyond what's already been publicly released what i like i do think it's i t's not ironic no worthy that one of the interests you've just put forward is the invasion of privacy when the whole claim of judicial watch is that this committee invaded the privacy of private citizens in the st place your honor and i'm i i i think that what the committee has was very careful to to not only drafted subpoenas in his narrow way as possible but also to only release the information that was relevant to its inquiry as in every inquiry of this type the committee receives a tremendous amount of information that  responsive to its subpoenas but not ultimately relevant to the questions before it the committee was careful in describing the evidence that was relevant to it i don't believe that is the entirety of everything that the committee received or even the entirety of everything the committee asked for in its  oenas so while we would submit that there were certainly there very likely were information sought and received by the committee that ended up not being particularly relevant or not useful to its in that would be the type of information that shouldn't be further released in that for the release would do damage to certainly there were people's information that was released and discussed in the report and obtained by the committee we don't deny that but we think that the committee  that the committee should be afforded and deferred to ok do my colleagues have any questions all right then mr peterson i don't know how much time you reserved but take two minutes all right yes thank you your honor having issues with the mute button there well mr tail man just expressed in terms of the whether or not the power is unlimited and then reviewable was extraordinarily precisely the point they were they way behind the individual's backs instead of going to the individuals from phone records they went to the telecommunications companies that which are highly regulated by the government beholden to congress and of course they rolled over in these individual's rights were violated by that any opportunity for judicial review that is the exactly the why this needs to be not this unlimited power and be half  victim of improper improper behavior to bring this challenge just isn't for one party doesn't have to by analogy but doesn't doesn't have to be the victim and the government misconduct bring fire quest the public has a right to think they got that they didn't they haven't released and otherwise well again that is precisely the point we need to learn more we need to understand because very serious very serious matters happened here privacy violations of rights be it behavior by this committee it is not an unlimited power and it cannot be an unlimited power or the next time the consequences would be very very serious all right