significantly government sell at expert help and even have two experts participate in the questioning asking roughly five hundred questions over four days t proceeding that was both a lawful and unfair did did the constitutional taint affect the investigation in any way how would it have we are a part of the investigation in many ways and that's the be unconstitutional structure and free enterprise it's undisputed at the time that they took the next step and decided they were going to go forward they were unconstitutionally structure it's also the case your honor that they never went back and we visited those decisions even after free enterprise fund i thought they reviewed things to know god didn't take it they they said they would do things in magic words like we ratify right now they certainly did not and again no one says that they did we're yesterday general those are cases that stand for the proposition that this type of structural error can't be ratified and in particular when what you're talking about is an underlying exercise prosecutorial discretion so your hon decisions about not permitting counsel to have new systems of an ex or they were unconstitutional and if they didn't understand that they were operating under the due process clause and so they made these decisions without  taking into account the due process clause if we agreed with you on the council point do we get to anything else no your honor i think that if you re with us on the council point that that is the end of the case and that the board inside what they would what we want to do next but i think that that under the circumstances here we clearly of shaw if need be that there was injury from the council point and that the  more robust and that when you when you talk about investigative testimony we made the argument that under matthews the question is what processes do this court said in the go out into the hallway you underestimate her right to attack the witnesses toe under the table right no your honor i'm asking for the right to counsel as described in whitman and and as the point here was it's still i've taken the oath that's relevant both because it means that the board was still acting inconsistent with the constitution but also looneys the fact that the time they were making these decisions they were not mindful that what you say your constitutional argument is that an officer cannot enter into office without having taken it out of argument are are certainly true for the president but the constitution doesn't say that for the other officer never ratified so i think this court's decision in doing answers that question in toulon after all that was the office of thrift supervision where there was an enforcement action and the objection was made exactly along these lines that the decision to commence the enforcement action had been made by an improperly appointed director of o t s that went through an initial hearing all the way to objections to the director at that point a new director was properly appointed and what this court said was the functions are distinct well in southwest general they were distinct your honor this court made the point in southwest general that the general counsel of the n l r b is a statutorily independent body appointed by the president confirmed by the senate and the court could not be competent in southwest general as a result that because it was the general counsel of the interim n l r b who made the decision to commence a proceeding that the board's determination at the end ratify it that choice now in this case is no nos the board is the one that voted to begin the investigation the board then voted to institute the disciplinary proceeding and at the end the board voted to find a violation all of the relevant powers here unlike in southwest general were exercised by the board itself and that was true and do this well you think the board has a prosecutorial hat on in one and one point in that proceeding and i need you can fat on and the other and you think they're always wearing lorcan in other cases the supreme court has recognized that but but more to your point it may be more satisfying to give a factual answer here in this case the board and the initial hearing officer are very well aware of the argument that they can that the investigation by petitioner that the investigation should never have commenced let's recall what happened here on the morning that petitioners hearing was scheduled to begin in front of the p c it will be the parties heard that the supreme court issued its decision in free enterprise  have a day to digest this and the hearing officer said sure and the next day they moved to dismiss on the grounds that the proceeding had been improperly initiated it commenced at a time when under free enterprise on the board isn't properly structured the hearing officer rejected their contention then there was an appeal to the board and petitioner argued the investigation was improperly commenced you didn't decide whether to commence this and in five pages of eight hundred plus page decision this begins at page eight fifty nine of the joint appendix the board explained in detail why there was no problem in one of the points this poor specifically says is with due consideration as properly pointed officers we conclude that this investigation was conducted fully and fairly but it doesn't say and this is the point as you understand yet which would've been easy to say we ratified the decision to initiate the charges  because the petitioner in that case could not show injury santy from the from the appointments claudia leisure appointments clause there as it will since you can't show that a correctly appointed person would have done something else then effectively you don't have appeal of this court we would not be able to say to the court well you can't show that because of the removal restrictions on the members of the board that you that the board would not have found that you violated professional accounting standards and so you can't raise that argument that is what the injury for close with dual in says is that when you have the same decision maker who initiated the proceeding to it says you know we think there's a reason to believe a violation may have occurred in that very same decision maker having been properly appointed and free of structural errors is a violation did in fact occur you received all the title or the two things though it's a different inquiry you the decision whether and when you shoot is to from from the here contesting that the oath is a requirement on officers of the united states it is a requirement in order six the constitution just as it is for officers of state cover before they take any significant action that is certainly the best practice that is not we think what the constitution requires is a minimum elements now british and it's right that from the beginning of the republic the stack statutes have generally require that persons take oaths i took an oath the statute requires that government officials take oaths but that statute five u s c three three three one which is the oath requirement for federal employees does not apply its terms applied to the board that's not a justification it's just i think an explanation for why we ended up where we are the rule that applies to the board is only the constitutional one because the board is not the government for statutory purposes and it was a mistake it was an oversight they should have taken the oath and we've been reliably informed that they have now tak people all the time for as your inadvertence and mistake and well i guess you know when they when the government makes and we could have fired the board members for this reason you're on the united states government's entitle government offices does not have that language and it haven't we hasn't the court told us to look to practice as well when and yes when judge does so and the practice here as you've acknowledged is that in you can't enter into the office without having to know irreparably so it does not taint the appointment because the taking an oath under article six is not aspect of the appointment itself as we know from our review madison the appointment was consummated when the commission voted to absolutely need go on the payroll yes but there's a difference in going on the payroll you're appointed and then taking action against others on the oath has always been understood to be you agree impose additional requirements antecedent to assuming the powers of the office and what those additional requirements were in there and it was in a bond the old practice of requiring federal officials to post a bond before assuming the powers of their office and also the oath in ca and if the court looks back at cases from the eighteenth century there are some that say under the facts of the statute in that case you had not posted a bond you could not exercise the powers your office and others they interpret the statute and say well here we don't think enough and you know what we're saying is that we agree at the time that the decision this case was entered they had not taken and we're not contending that the oath that they have now taken is statute and acted by the very first congress which was the regulating the taking of oaths and that statute as to state officers said you can wait up to thirty days and so the certainly speaks an event six years or what was it here it was it was quite a period of multiple years but again different argument recall is that it is a constitutional requirements you cannot exercise any power of your office  you the way just stressed that makes it sound like it's extreme i thought that was obvious that you can't do anything significant till you take the oath as an officer of the united states it is absolutely best practice and consistent practice under the current practice and rule on commissions for officers who are officers of the united states but are inferior officers who may not of going to appoint by the president directly right so as the court knows the parti officers appointed by the president either in pure principles that the president consummates the point by signing a commission generally although i don't understand it that's the universal practice with respect to some officers in the military is that federal circuit case cited in our brief officers appointed by the heads of departments who are inferior officers my understanding is that although many receive commissions directly not all do and that is fact the commission practice works as in the manner that chief justice marshall in i was appointed by a vote of the securities and exchange commission but i like my commission that commission generally issues but that that it is not the case and in every circumstance the commission automatically issues to every unfair officer appointed by the head of the department to request the commission the appointments would be no less valid as a result so it's just a matter of question of how the president performs the duty to commissioned officers of the united states and nothing in this court's cases or certainly not a marker to madison appreciation of this issue just so on the both of these issues were raised for the first time in briefing in front of the commission if the court looks even to the notice of appeal but functionally notice of appeal to the commission  eighty seven of the record all they said they were raising in the commission was the free enterprise fine point about the ratification and the right to counsel point now to the oath nor the commission argument was mentioned it was raised for the first time in the commission the commission's decision itself which begins at page two sixty six the record says this is forfeited but then goes on to address it on the merits in an abundance of caution but that i think candidly what happened here and counsel be in a better position to address this is that argument didn't occur to them until justice alito published his concurring opinion in the m track case in the supreme court which happened after the appeal had already been taken to the commission and you know the old one in particular i think underscores the reasons why we insist on the word structural in the couple different senses yeah and the in the sense in which this court address structurally landry that meant you're not required to show prejudice and we're not suggesting that they're required to show prejudice from the oath but we do think they have to preserve the error and the reason for preservation is that is the court but knows the point of that doctor and if you give agencies an opportunity to correct their errors this was an oversight but i don't know this for sure because it's not in the record my speculation personally is that because the board is not and even see of the united states by statute accounting firm wants a senior partner to see the end on the testimony of all of its witnesses and that in that particular circumstance that expert is not is not the expert that they want to attend the testimony and i quote more than once the reason for that w sr there and i presume they were in the senior position of her e d s and the staff here through which what's the difference if the if the if the if the idea behind this distinction is that you don't want to let management know what's going on you know you that's not possible you've got three more years there the lawyers can be breaching that obligation if she doesn't inform management what's going on so i  don't understand the distinction of course practically speaking that is true but i think the reality is that the staff had the discretion and were encouraged through the adopting release to exclude that particular case they didn't have the discretion to the firm to be there so we have to come up with some of the reason to not allow an expert to be there and i don't think there is one but i think the reality is that that is how the rules drafted and the board the staff exercise the discretion they understood and some say had i think it's helpful to look at the facts to understand the perception of the argument that there was prejudice as a result of this decision here which is that before that congress just one question do you agree that women is correctly decided sort of imported the whitman rule to the p c b contacts under the e p a there's still a harmless error analysis and here a petition just hasn't shown that that he was harmed by this decision recall that this was  request not his request personally to have its expert attend and either ernst and young nor he on his own behalf ever sought to clarify the scope of the denial to say you know you deny this expert but i'm confused because in house counsel are attending neither ever propose another expert so said you know this is really important to us let's go find someone else you can buy the same level of expertise here after the testimony mr lynch said he never sought to strike or unmanned or otherwise clarify steps if in fact the lack of an expert made a difference to the defense do you think if the council had been there or not not the actual her that you could apply a harmless error analysis to  back in two thousand and ten the board said the screen for the united states we are the government for a constitutional purposes and yet and tell the briefing this case they had never taken the oh so they'd never thought through what it meant to be what do you do with your best practices argument that there's not a constitutional requirement to you know for entering office and evidence of that in the first act of the first congress folks thirty days we are i think two things one is that thirty days is not seven years and two when you look at the statute the statute has multiple sections and as you mark to the sessions there is a session that deals with officials of the executive branch and  phrase in it before entering into the execution of their duties you take the oath so once they say we're going to remain for constitutional reasons article six kicks in and the years take by and they don't do anything about it and that is significant both on the question should you address it is significant because it shows one of the fundamental problems here about the board's operation but it's also significant because it means in your words your honor when they were making decisions here if i could just mention quickly two of the stories that my colleagues relied on that almost the opinion doesn't o c people about what are the characteristics of an office and when it talks about the oath it is knocking back in short paragraphs the argument that if you take an oath then you are in office the entire opinion is about elements that make up office it's got nothing to do with this case margaret versus madison of course in margaret is madison he was undisputed that the commission exist testimony they relied on it to start the case they rely on it in the decision they discovering that you're on or they say we never rely on the investment testimony but your honor if you look at j seven ninety one there is a side to it if bled through i think that that is indicative of what was going on in this case yes you know the argument that the fifth amendment doesn't apply i just don't think that that's correct and i think indeed that goes back to when you pull on your cost you should have when you take the oath and so i don't think we need to show prejudice but even if we did when you think about what's going on here the asymmetry the government's access to experts the use of those experts to ask questions the whole setting of the case questions in part of your premise is that the way yours don't understand this well enough always to to send these weird don't understand this well enough to to know how and when the other it's not just that they're using the experts to whisper in the years of their lawyers the experts ask questions directly and so the experts are there representing the board who governmental power to bear upon is able to give expert testimony i don't think the board would have allowed mr lynn cheney to qualify as an expert and give expert testimony that said your point of view your interpretation of the nie audit standards that issue is incorrect so i understand that there is a sense that if you were if you were talking to a lawyer about securities fraud well the lawyer or the whistle witnesses an expert about security fraud is after all the securities order it would still say he gets the right