white house counsel over the objection the president of the united states this is integrated dispute over institutional problems bears no resemblance to the traditional cases or controversies that can be heard under article three moreover while congress has reported to authorize senate committees to sue to enforce certain subpoenas against non federal officials congress itself has expressly carved out the authority of the senate  nation this court cannot avoid the serious constitutional questions prevented by article three and in fact for that reason even if you get the more fundamental question though the article three question look both article three standing and federal subject matter section are jurisdictional but they're both very important and they're both rational up route that we decided before we could reach the merits but as between the two of them there is not a would let me ask about the serious constitutional question why after after rain in your view when made congress or a chamber of congress assert institutionally injury we don't think they ever honor but certainly not in a case where it's an injury against asserted injury against the secular range we think that reigns reaffirmed the proposition that a dispute injury only gives write an article three controversy when it's the of dispute that has traditionally been resolved in federal court but i mean this supreme court has said there is such a thing as institutional injury right only if you've got coleman you've got here is under state legislature can meet for state legislators and in both the rain why why would that make a difference because of the separation of powers problem there's serious separation of powers concerned with having a federal or resolving interest dispute in this is laid out in great detail in raines raines specified is that over history there have been countless disputes between congress and the president and in none of those disputes have they been resolved through into range litigation over a claim injury to official of the order your power to correlate went through information so i don't think it is certainly the case that hungary or the house intervened to defend its subpoena but that doesn't change the fact of the nature of the dispute in this record was been made it is that the nature of the court's analysis was all about the house that came here now necessarily so i think you're exactly right your honor that neither th he nor reins is on factual or for worse and so then the question becomes what about the reasoning of these cases i'm focusing no private party to be seen anywhere so go back to what the framers had in mind in having three branches of government the hypothetical obviously is where one grand arguably is finally in its justice souter's concurrence range which is a directly on point this where he emphasizes that these sort of intervention spews are far afield from the traditional cases or controversial that's not the same as saying it's an absolute bar is resolved through political tools and the house has said yes such as so the house has power full tools to block appropriations to block legislation if the senate agrees with the house they can block nominations they can  legislation the senate and the house together com they can make it the grounds for impeachment for obstruction of congress took it campbell riches clinton did talk about impeachment being one of the tools that congress has i'm not going to get into whether on any given back pattern i would be proper or not but it is certainly one of the tools that congress has the congress has powerful powerful tools to check the presidency and that's what the courts a computer records of anything congress of the more powerful but take any steps necessary and the supreme court held that that was not authorized nation to sue and the reason the supreme court gave for why it was not authorization to sue is that there was a wide divergence between the power to issue subpoena and the power to sue to enforce it that is just exactly the reason why they don't have the sort of injury that support or the standing it goes to the broader separation of powers and that nancy that your claim of absolute more power than the f e c had the power to bring lawsuits and they said that that is no part of the legislative role and that's why the supreme court in buckley struck down the original of the city and but flipside of that is congress has never had the authority to file a lawsuit and that was the discussion we had about a lead in the great hall i'd like to make one last point on standing which is the role of the corps and this is the point that justice souter made very eloquently in this country which is the reason it matters that this is an intervention speech rather than a dispute involving private rights is because federal courts historically existed to read it right right and if you instead have them resolving a purely political dispute dispute between the political ranges it risks politicizing the court and undermining public confidence and i can't think of a better case to explain that than the facts of this case the house committee in this case has cited our legal position our m floor of the senate by one side or the other as evidence that either the president is guilty and the president is innocent that is exactly the problem that justice souter and the majority of mangy worried about but that didn't happen in any  it in the context of a private person's rights when it's protecting private parties from the government from other by parties that is the traditional way for the boards and the public understands that that is the will of course when instead you have a political fight and you've got congress on one side and the exempted on the other side and the judiciary in the middle picking and choosing who the winners are that is not the traditional role of the federal courts and that is when the public might wonder why with all respect  opinions of the court the supreme court must be read in context of what was particularly at issue and what the holding up the court was to the right now and the reason and  congress in china with the can it is not never confronted this precise issue of whether what means implications are for the full bottom rather than individual legislators but what i'm saying is that the reasoning of brains there are repeat is of that opinion that history matters a great deal in these in the separation of powers issues well that the engle memorandum from the department of justice the office of legal counsel this is the st example exactly to the contrary your honor it is true that the st no written opinion describing this might be bad but they don't have any historical examples of congress subpoenaing the president or suppose advisors and those individuals testify under compulsion as opposed to choosing to testify of course the given the political branches has always been if there ever been an instance of such a broad scale defiance congressional request for information in history of the republic if they were given anything like this your honor i think that that question with all due respect underscores exactly why there are real dangers with this war getting into the merits the answer to the question i again it's not for anything else question is can you avoid that serious constitutional question i think there's an easy way to do so here because congress itself hasn't grasped the circumstances where congressional committees conceived and for subpoenas it has authorized senate committees to up there into that the intent is to make it clear that traditional fortune is available when a person is asserting a privilege personal to him or her but not when the person is asserting a governmental privilege available my point is there are serious article three questions about whether the house should be able to sue and before this court resolve those and before the house committee can force this court to resolve that at a minimum congress as a whole it's not just a matter of judicial restraint it's also a matter of there are good reasons why congress of the whole by wanted not allowed in the stores and it ties into article two stand point which is right now disputes over information are resolved through the case and this work will be in the business of fighting resolving disputes between the branches over the nation it will be good for the courts and it frankly won't be good for either of the political ranges because somehow the house will lose some of those pieces and then they will have less power than they had before that is why it makes it that is why senator specter and senator levin quite reasonably said we want to keep these disputes out of the political out of the courts and keep them within the political branches that is the separation of powers and one that underlies all attorney client privilege in this case and you may be waiting until it is either the separation of powers which that award you're waiting until the questions are asked him and he can deny refused to answer based on attorney client but just like you answered my question no one has standing is it your position that this goes to the and i don't mean lowest in the question for you but might not even if we were to greenwood's here that the that the president's claim to absolute testimony immunity is in this case it's extravagant i wonder why we should be involved are you here because of the impeachment is arguably are now a system you claim would differ based on whether you're here wearing the legislative oversight hat or whether you're wearing the impeachment hat the articles  were all about the controversy over ukraine madame was long gone from the white house by then he's a witness of two possible obstruction of justice by the president but the house has chosen not to press that matter the only possible relevance mccain would have to the piece that is if you're here to tell me that the house made yet approve another article to pick up impeachment is that the position of the committee and the speaker that there may yet holidays on an expedited basis right you're here because the impeachment so that is correct and we remain here because of the impeachment and i want to be very careful about how answer the question in terms of that committee's continuing interest in testimony from mr make and for the impeachment purposes and also then walk through how it's relevant to the existing articles of impeachment and the ongoing investigation and if we could turn it in our testimony produces new evidence supporting the conclusion that president trump committed impeachable offenses that are not covered by the existing articles the committee will proceed accordingly including if necessary by considering whether which is and just taking a step back as a matter st principle the fact that the president has been impeached by the house and two articles does not mean that they could not if mr make an testifies and there is additional relevant evidence of misconduct use that information call and we can get to how that's relevant to the existing articles for its decision making with respect to how to proceed in the current impeachment for any trial in this matter which that evidence  resolution seven hundred and fifty five struction of congress in the u k and in the ukraine controversy that's correct with respect to specific misconduct in that article but the article also refers to the president that a company of these articles of impeachment and in addition of course of making and came in to testify and he was as we've laid out an eye witness to several of the allegations of the president's misconduct in affairs with the articles of impeachment and we regardless again we are here for all those impeachment purposes and also because the committee from the outset has been considering important remedial legislation including to govern interactions between the white house and d o j and the f b i including to governor and foreign offers of contributions to political action committees and individuals in upcoming elections those are reach an agreement with the department with respect to the documents and then after the status of that production but that the document aspect of this as the district court noted it's no longer the issue an documents were the testimony to reveal the likelihood of other documents relevant to that testimony i doubt that's what i'm trying to do a bit short answer is no i believe that it was an accommodation such that they holding in that case as the supreme court has made clear and later cases is that individual legislate rights and in mackey's it was six members of congress who had lost on and did not have standing that is they did not have a concrete and particularized injury to a certain institutional interest and dilution of legislative which was an interest that belonged to congress as a whole what do you do with your friends argument that the reasoning supporting th power it's not a basis diminution power by one branch of government is not a basis for article three standing that you are the facts of the case is that the kind of chief justice rehnquist's listed in who's parade of horribles may may have been involved case the question for standing purposes is trying to determine whether the plaintiff is asserting an injury that is a particular ice injury to that point and that is what distinguishes the committee in this case which has issued a subpoena is in it and is entitled to information and response to that subpoena from the plaintiffs in the ravens who are asserting an interest that belong to the legislature as a whole this is a case where the pla types of injuries that are just right and as i read as i understand your friend's argument about reigns supreme court says this type of the type of injury to a branch of congress that is a more  in that that diminishes their power when they come to the courts to say the executive has done something to diminish our power that that that's not the type of dispute the were supposed to referee were not an ombudsman over the operations of the rights of individuals are at stake but no i don't think you have any instances where the institutional interest of the congress is is is is it's been injured and therefore  unfortunately this is a dispute over information between two political branches of government it's a very different sort of creature than the typical subpoena forcemeat and in that respect premise of the question we're not advocating a narrow reading of brains we are advocating a reading of brains that is consistent with the holding in that case which is in the last paragraph of the opinion is also consistent with the reasoning which relieved that is the question every article three standing in the supreme court has characterized france that way in its later decision as we know it matter that it was individual legislate or is an issue in the brain and amorphous dilution of legislative power this is again i keep going back to this but it matters here that this is a subpoena and forcing this is the type of dispute that the courts are very familiar with answering it and even if there are constitution and laws of the united states as this court said in a t n c in one thousand and seventy six dollars their argument is essentially and implying repeal argument to the extent they're looking at legislative history or other anything to do with how subpoena enforcement disputes and any limitation that the senate understood might be imposed by one thousand three hundred and sixty five certainly there's no basis for imposing those on the house particularly where what the a friend on the other side mention a group of mexicano that that case is a valid a very different circumstance where the question was whether or it sitting in equity could exercise jurisdiction that had historically not existed at all over real property and before there had been a judgement and the facts are very specific the whole thing is very specific in that case so i thought understand the department argument here is maybe i'm putting words in counsel mouth but he's willing to acknowledge that these cases may be distinguishable on factual grounds but i understand his argument  that the court reins in elsewhere basically who is laying down a path for the court to be very wary of entering this type of dispute the past the department of justice president and the attorney general have not been to post objection to supplying information to the committee i think that's the hurdle that we're to distinguish precisely who the place is and that type of thing and to that extent the committee can argue well it's an open question before this court and it's open question if and when the case goes to the supreme court but that's the response we're trying to get from you a few responses you know one with respect to the question of how this has worked between the branches and i would direct  up to comply with a valid congressional subpoena but isn't that the whole point of your friend's argument that you didn't have to do that and you got it and that and that in the place of a court coming in and picking  or loser the nation's history has been a ssion compromise accommodation it's messy it takes time involves all these tools that you can use in the court but that's what the that's what the separation of powers means isn't that your point and we would have been happy to have reached an accommodation in this because it would have meant then mr make it would have already show question is whether whether you within the constitution allows you to pull the courts and i'm just channeling justice souter's concurrence or whether the constitution allows you to pull the courts into this dispute that the fact that there are other remedies that would be available to congress i think really underscores that congress has the power and the supreme court has long recognizes her there is no dispute to issue subpoenas and  compliance with this appeal we have come to this court seeking an orderly back to a resolution of this dispute including about a legal question on absolute immunity that is the type of legal question and the courts have answer now we are in a situation now where there has been an unprecedented refusal to comply by this administration with valid congressional subpoenas and the committee is continuing in an case and just one final point i want to smash if i may which is the imbalance in terms of the argument here particularly on standing that that a committee of the house exercising i article worries on like every other litigant where she's a subpoena and i'm like what i understand the department of justice would do if mr mccann actually said he would appear and testify i expect that they would as they have done in other cases leading to our subpoenas that they would go to court to seek to prevent them from doing that and in their view they would have subject jurisdiction a cause of action is standing to do that but they would like to keep the  reasoning as we talk about we agree the facts arrange for a case involving individual members of the reasoning goes much more broadly and i don't think that we've heard any explanation of why that using doesn't apply here there was some suggestion that there is you know information is president not some private party conversely they emphasize that this is information that congress needs while the the point is as a judge group that emphasized they need the information in furtherance of their legislat some sort of autonomy that they need to rely on the executive branch to bring lawsuits that is how the structure works and the way it works is to root political process through the political tools of they're not happy with how the executive branch is complying with  mean what the founding fathers thought was a critical power in terms of checking abuse of presidential power and here the allegation is made that that is what  happened we have yet to have a trial that's so fundamental to the form of government we have and as you know the justice department has previously taken the position that the courts have no role in the present exercise or in article t need for this government to continue to operate effectively just like your honor congress has very conveniently carved themselves out of court and there's nothing the executive branch can do about that other than the political pressure on them we can't just pass a law that says you know what congress is subject avoiding that that's how the political process works the political branches you whatever tools they have and if they don't have enough tools because they don't have the political support in the senate and the public that's how it works not well campbell resistant and recognize own trial before the bar of the house of representatives or the senate it is simply anachronistic for them to suggest that everyone always knew that the work in thirty one was lurking in the background and they can invoke it if there is no history or tradition of it you can avoid the serious article three