[00:00:00] Speaker 00:
Case number 25-5353, Ralph De La Torre, M.D., appellant versus Bill Cassidy, M.D., in his capacity as chairman of the Committee on Health, Education, Labor, and Pensions of the United States Senate at all.

[00:00:14] Speaker 00:
Mr. Schaefer for the appellant, Ms.

[00:00:16] Speaker 00:
Rivera for the obelisks.

[00:00:19] Speaker 00:
Mr. Schaefer, good morning.

[00:00:20] Speaker 04:
Good morning, Your Honors.

[00:00:21] Speaker 04:
May it please the court.

[00:00:23] Speaker 04:
At issue in this appeal is a sweeping ruling that immunizes governmental misconduct so long as it occurs under auspices of a valid investigation.

[00:00:33] Speaker 04:
That ruling, in our respectful view, defies precedent, invites abuse, and ousts the judiciary from playing its proper role in deciding important constitutional questions.

[00:00:44] Speaker 04:
Notably, your honors, this case was dismissed at the pleading stage when Dr. De La Torre's allegations must be credited and all reasonable inferences drawn in his favor.

[00:00:55] Speaker 04:
As alleged in detail, the defendant's actions that are challenged serve no legislative function because they could not yield any information in furtherance of an investigation.

[00:01:06] Speaker 04:
Instead, these actions serve solely to chill and punish Dr. De La Torre's exercise of his Fifth Amendment rights following a valid invocation.

[00:01:16] Speaker 04:
Nevertheless, the district court held that absolute immunity necessarily attaches under the speech and debate clause such that it lacks jurisdiction at the threshold.

[00:01:27] Speaker 04:
If this court affirms, it will be closing the courthouse doors to plaintiffs complaining against even the most flagrant congressional trespasses on constitutional rights.

[00:01:37] Speaker 04:
Indeed, Your Honors, such reasoning and result, the same reasoning and result would follow even if the committee were avowedly punishing Dr. De La Torre for his conceitedly valid invocation of his Fifth Amendment rights in response to specific questions at the hearing.

[00:01:54] Speaker 04:
If you read the district court's decision, your honors, the key portion of it, and ask yourself the question, would the investigation still be valid?

[00:02:02] Speaker 04:
Would the immunity still attach, even if Dr. De La Torre had live been invoking his Fifth Amendment rights to resist answers upon which Congress was insisting?

[00:02:13] Speaker 04:
every aspect of the district court's reasoning and result would hold, there would still be absolute speech and debate immunity.

[00:02:20] Speaker 04:
That, your honors, I think is a problematic result that is contrary to constitutional law and to precedent.

[00:02:27] Speaker 04:
And all we respectfully- I don't understand it.

[00:02:30] Speaker 04:
Yes, Judge Millett.

[00:02:31] Speaker 02:
I mean, people get called before Congress.

[00:02:33] Speaker 02:
They invoke the Fifth Amendment.

[00:02:35] Speaker 02:
They show up.

[00:02:38] Speaker 02:
They answer what questions they can.

[00:02:40] Speaker 02:
They invoke the Fifth Amendment.

[00:02:44] Speaker 02:
And senators or representatives, whatever it happens to be in the case, get to keep asking questions.

[00:02:49] Speaker 02:
I don't understand your argument.

[00:02:52] Speaker 02:
I don't understand how it's not controlled by Eastland.

[00:02:55] Speaker 02:
And I don't understand what your point is.

[00:02:57] Speaker 02:
Your client didn't show up, asserted a blanket Fifth Amendment, which is not how this works.

[00:03:03] Speaker 02:
And says, yeah, if you didn't like the questions that person asks, that's what speech or debate is.

[00:03:08] Speaker 02:
It's really hard to say that a representative or senator, in this case, sitting in a committee room asking a witness tough questions, even insulting questions, is not in the heart of the speech and debate clause.

[00:03:23] Speaker 02:
I don't understand.

[00:03:24] Speaker 02:
How do you start with, there was a lot, sorry.

[00:03:27] Speaker 02:
That's my gestalt one, but how do you get out of Eastland?

[00:03:30] Speaker 02:
Constitutional rights asserted?

[00:03:32] Speaker 04:
Judge Millett, let me start with the last part of it, which is we're not challenging the questions posed to Dr. De La Torre.

[00:03:42] Speaker 04:
Or the statements that were made at his expense to suggest criminality and to suggest that there needed to be a reckoning.

[00:03:47] Speaker 04:
We're not suggesting that that is in of itself what occasions a lawsuit.

[00:03:52] Speaker 04:
What we're what we're challenging is the issuance of a resolution, the issuance of a subpoena, official actions that came out of the committee and are serving to chill and penalize the Fifth Amendment right.

[00:04:02] Speaker 04:
And that, Your Honor, we think is absolutely review.

[00:04:05] Speaker 02:
It's chilling and he's still asserted it.

[00:04:08] Speaker 02:
Well, I said, oh, I'm scared now.

[00:04:10] Speaker 02:
I'm going to come back and testify.

[00:04:12] Speaker 04:
I think it's a lesson for Dr. De La Torre and for other potential witnesses who are in his position.

[00:04:18] Speaker 04:
If you're invoking your Fifth Amendment right, you can be paying the price of civil criminal contempt.

[00:04:23] Speaker 02:
If you invoke it as a blanket and don't show up.

[00:04:27] Speaker 04:
But Judge Millett, let's start with the district court's decision that's under review.

[00:04:30] Speaker 02:
The district court's decision is articulated in terms that would attach, respectfully, in terms of whether there's a valid- This is some sort of facial challenge where we're deciding the case in front of us, where he didn't show up on asserted blanket Fifth Amendment immunity.

[00:04:46] Speaker 02:
And your argument has been there was a valid legislative purpose on a subject matter within the committee's bailiwick.

[00:04:55] Speaker 02:
All of that was true.

[00:04:56] Speaker 02:
You don't dispute it.

[00:04:57] Speaker 02:
Somehow that legislative purpose, poof, evaporated as soon as he invoked the Fifth Amendment on a blanket level.

[00:05:05] Speaker 04:
Is that your argument?

[00:05:07] Speaker 04:
I think I would offer a friendly amendment to the argument, I hope.

[00:05:11] Speaker 04:
The amendment being, we're not saying that it is necessarily the case that any witness who invokes the Fifth Amendment has to be credited with that.

[00:05:20] Speaker 04:
We are saying on these facts where the committee was alleging criminality on the part of Dr. De La Torre, when there were actual criminal investigations that had been publicly reported, when the subject matter of the hearing and ostensibly every question that would be posed to him

[00:05:35] Speaker 04:
would lead to the same Fifth Amendment invocation and Judge Millett, where the other side's not denying.

[00:05:39] Speaker 02:
I still don't understand.

[00:05:41] Speaker 02:
One, they are denying that.

[00:05:42] Speaker 02:
They're definitely saying you have to show up and invoke it in response to specific questions, and we think there may be some questions you can answer.

[00:05:49] Speaker 04:
I would go still further.

[00:05:50] Speaker 04:
They're not denying that even if Congress had no intention to pose any question that would not necessarily lead to the same Fifth Amendment invocation, and even if Congress were insisting not just on appearance but insisting on answers... Mm-hmm.

[00:06:04] Speaker 04:
Congress would still have absolute speech and debate.

[00:06:07] Speaker 02:
Absolutely.

[00:06:07] Speaker 02:
They're sitting in their chairs in their committee room.

[00:06:12] Speaker 02:
What you agreed was a legislative purpose and what you agreed was within their wheelhouse.

[00:06:17] Speaker 02:
And they are asking questions.

[00:06:18] Speaker 02:
And the fact that a witness, it seems to me that you put all this power in the witness that suddenly the legislative purpose disappears.

[00:06:26] Speaker 02:
Either if...

[00:06:28] Speaker 02:
He does a blanket Fifth Amendment.

[00:06:30] Speaker 02:
Or if he sits in a chair and says, I invoke the Fifth Amendment, and then they ask a follow-up question, it disappears.

[00:06:36] Speaker 02:
Or they ask a sixth or a seventh or an eighth question.

[00:06:39] Speaker 02:
The legislative purpose disappears.

[00:06:42] Speaker 02:
That's how I understood your amendment here.

[00:06:45] Speaker 04:
Well, I think that the complaint alleges in great detail why this was a valid Fifth Amendment invocation and why it was understood by Congress.

[00:06:53] Speaker 02:
I don't know what you mean by a valid one.

[00:06:55] Speaker 02:
A valid one is showing up and answering the questions.

[00:06:58] Speaker 02:
He had answered, what's your name, without invoking the Fifth Amendment.

[00:07:02] Speaker 04:
He could have answered that question.

[00:07:04] Speaker 02:
He could have answered your employment.

[00:07:05] Speaker 02:
Tell us your employment history up to the present time.

[00:07:09] Speaker 04:
Well, we would have to be very careful about not waiving, not getting to a point where there's a waiver.

[00:07:14] Speaker 02:
He could have answered that.

[00:07:15] Speaker 04:
Well, Judge Millett, I think when you're in a context where the whole purpose of the hearing— You're saying he couldn't answer anything.

[00:07:21] Speaker 02:
Of course he could have answered things.

[00:07:23] Speaker 04:
I don't think that there's any serious contention by Congress that they have identified some such question that they needed to pose and that they wanted to pose in furtherance of an investigation.

[00:07:32] Speaker 04:
We think there is.

[00:07:33] Speaker 02:
We think there is.

[00:07:35] Speaker 02:
So I want to understand how this is going to work.

[00:07:37] Speaker 02:
So under your view.

[00:07:39] Speaker 02:
There's a legislative purpose.

[00:07:41] Speaker 02:
It's in the committee's wheelhouse.

[00:07:43] Speaker 02:
They're sitting in their committee room in Congress wanting to ask questions of a legitimate investigation.

[00:07:50] Speaker 02:
And your concern is that a lot of the questions are just going to be to get him to invoke the Fifth Amendment.

[00:08:00] Speaker 04:
I think everything that they ostensibly wanted to ask him for purposes of the investigation.

[00:08:04] Speaker 02:
How do you know that they ostensibly wanted to ask him?

[00:08:05] Speaker 02:
Do you have a list of their questions?

[00:08:07] Speaker 04:
We don't know.

[00:08:08] Speaker 04:
We were denied any such jurisdictional discovery or even for purposes of judicial inquiry.

[00:08:13] Speaker 04:
I had to posit some such question.

[00:08:15] Speaker 02:
All right.

[00:08:16] Speaker 02:
So this is what I'm trying to get to.

[00:08:17] Speaker 02:
So your theory is we as a court, when this kind of argument is raised, have to tell the committee, well, give us your list of questions.

[00:08:25] Speaker 02:
Now, they don't have them.

[00:08:28] Speaker 02:
Senators will maybe they write them in advance.

[00:08:32] Speaker 02:
Maybe they don't.

[00:08:33] Speaker 02:
They can do it off the cuff.

[00:08:35] Speaker 02:
They can be like an oral argument and it changes as they go along.

[00:08:40] Speaker 02:
So I don't understand.

[00:08:41] Speaker 02:
We're supposed to pre-approve the questions that they want to ask?

[00:08:44] Speaker 02:
Because it might make you have to invoke the Fifth Amendment too many times?

[00:08:48] Speaker 04:
In the first instance, all we're asking the court to do is to reverse what we think was a precipitous and sweeping ruling of absolute speech and debate clause immunity.

[00:08:56] Speaker 04:
The rest is left for the district court.

[00:08:58] Speaker 04:
And the first thing, of course, is who bears the burden?

[00:09:00] Speaker 02:
I don't understand that because you're saying—

[00:09:04] Speaker 02:
You're saying that what happens is as soon as he invoked this blanket Fifth Amendment immunity, he was did not have to show up at least less than until a court signed off on the questions the senators were going to ask?

[00:09:18] Speaker 04:
By the way, there's also the option.

[00:09:19] Speaker 02:
Is that yes or no?

[00:09:20] Speaker 04:
It's I'm not.

[00:09:21] Speaker 04:
That is not the ruling we seek.

[00:09:23] Speaker 04:
OK, so that is not the rule.

[00:09:24] Speaker 02:
We don't need to know the questions in advance.

[00:09:26] Speaker 04:
I think that there should be some inquiry into whether there was some valid question that could be posed.

[00:09:34] Speaker 04:
It was expected to be posed.

[00:09:36] Speaker 04:
Would a reasonable committee in this position be expected to pose questions that would not run smack into the same well-understood Fifth Amendment implication?

[00:09:43] Speaker 02:
I'm sorry.

[00:09:45] Speaker 02:
Okay.

[00:09:45] Speaker 02:
Wait, so they're not allowed to ask any questions that might trigger the Fifth Amendment?

[00:09:51] Speaker 04:
I don't think that their sole purpose in going after Dr. De La Torre can be to chill and penalize the Fifth Amendment invocation.

[00:09:56] Speaker 04:
Well, the sole function being served is simply to compel a witness to provide answers, notwithstanding a valid Fifth Amendment invocation.

[00:10:05] Speaker 04:
I don't think that that proposition is controversial.

[00:10:08] Speaker 04:
The evidence of that is the complaint, which has yet to be tested in any shape, size, or form, but has detailed allegations.

[00:10:14] Speaker 02:
You have to have a good faith factual basis that the sole purpose of the committee,

[00:10:21] Speaker 02:
And having him there was solely to beat up on his exercise of the Fifth Amendment.

[00:10:29] Speaker 04:
That is that is what we've alleged.

[00:10:31] Speaker 04:
There's not been.

[00:10:31] Speaker 02:
And you do that.

[00:10:33] Speaker 02:
Do you have quotes from every member on the committee?

[00:10:36] Speaker 04:
We do not.

[00:10:37] Speaker 02:
But we have.

[00:10:37] Speaker 02:
And in fact, you didn't even sue Rand Paul.

[00:10:40] Speaker 02:
So that's not true.

[00:10:42] Speaker 02:
That's not true that everybody on the committee was out to ask these questions that you're concerned about putting aside.

[00:10:49] Speaker 04:
It is true that we have not sued every single member of the committee at the time.

[00:10:52] Speaker 04:
We would stand for the proposition.

[00:10:53] Speaker 02:
Then he needs to show up before the committee.

[00:10:54] Speaker 02:
You can't show that.

[00:10:55] Speaker 02:
The question here is to the committee.

[00:10:57] Speaker 02:
And if the committee had a legislative purpose...

[00:11:00] Speaker 02:
You don't get to say that disappeared either when you invoke the Fifth Amendment or when one senator or two senators say something that you find disagreeable.

[00:11:08] Speaker 04:
That brings me back to where we started.

[00:11:10] Speaker 04:
I think it would follow from that reasoning that once there's a valid legislative purpose, Congress can do anything it wants to in furtherance of that, including to penalize the live invocation of the Fifth Amendment in response to a specific question, which I think shows the overbreath of the district court's theory of the absolute immunity.

[00:11:26] Speaker 04:
I think that is the reason that this court should reverse.

[00:11:29] Speaker 02:
And all that would be required- They can't do anything.

[00:11:31] Speaker 02:
They can't torture the guy.

[00:11:33] Speaker 04:
They can't do a search there in the- They can use a compulsive subpoena and a threat of civil and criminal contempt to say that there has to be a price paid by a witness in this position.

[00:11:45] Speaker 02:
And if that's done- Did they ever say we would pursue contempt if you showed up, answered what questions you could, as to ones you couldn't, and vote the Fifth Amendment?

[00:11:56] Speaker 04:
Every indication is that that was their posture.

[00:11:59] Speaker 04:
And they were saying that he needed to answer.

[00:12:02] Speaker 04:
Those statements were made that he was a health care terrorist, that there needed to be a reckoning.

[00:12:06] Speaker 04:
Those statements were made.

[00:12:07] Speaker 02:
The entire committee put out these statements.

[00:12:09] Speaker 04:
Not the entire committee, but there were committee press releases, including those that alluded to his pending criminal investigations under the False Claims Act.

[00:12:20] Speaker 02:
So they can't do that.

[00:12:21] Speaker 04:
Well, I think that then they should understand when there's a Fifth Amendment invocation that that is a valid Fifth Amendment invocation.

[00:12:28] Speaker 04:
And it should at least be incumbent upon the committee to carry a burden of showing that speech and debate immunity attaches.

[00:12:34] Speaker 04:
They were not respectfully required to do that by the district court.

[00:12:37] Speaker 02:
There was a pure legal ruling by the district court here.

[00:12:39] Speaker 02:
Burden approved on matter.

[00:12:41] Speaker 04:
Well, the district court didn't treat it that way.

[00:12:42] Speaker 04:
It specifically addressed burden of proof and said that it would be incumbent upon Dr. De La Torre to bear the burden.

[00:12:48] Speaker 04:
That, too, is legal error.

[00:12:49] Speaker 02:
No harmless.

[00:12:51] Speaker 02:
Whatever it was, it would be completely harmless.

[00:12:54] Speaker 02:
You do agree if it's a pure legal ruling, there's no burden of proof.

[00:12:57] Speaker 04:
If it's harmless, it's harmless.

[00:12:59] Speaker 04:
I do agree with that.

[00:12:59] Speaker 02:
There's no burden of proof issue when there's a pure legal question of law.

[00:13:04] Speaker 02:
There's no facts to be brought forward.

[00:13:06] Speaker 04:
But that's where we go back to our earlier colloquy.

[00:13:08] Speaker 04:
We believe that we have pleaded in detail, plausibly, concretely.

[00:13:12] Speaker 02:
STEPHANIE DESMOND- Sorry, I didn't say it right.

[00:13:13] Speaker 02:
Taking the facts and the most favorable to you, you lose as a matter of law.

[00:13:19] Speaker 02:
Is there a burden of proof if you do that?

[00:13:21] Speaker 04:
DAVID SANGER- Judge Millett, I agree that it would be a harmless error in that posture.

[00:13:24] Speaker 02:
STEPHANIE DESMOND- It's not harmless.

[00:13:25] Speaker 02:
There was just no burden of proof.

[00:13:27] Speaker 04:
Well, either way, I would say your articulation is fine by me.

[00:13:32] Speaker 04:
My submission is that we have alleged enough in the complaint to establish that there was a valid Fifth Amendment indication.

[00:13:39] Speaker 04:
And unless and until Congress can show that there was some legislative purpose to be achieved by having Dr. Teletori appear, that is enough to say we don't have speech and debate clause in meetings yet.

[00:13:51] Speaker 03:
What is your best case for that being the inquiry at all or any of what we've talked about so far being relevant?

[00:13:58] Speaker 03:
Because there's a very straightforward read of a lot of cases that say when you have a core legislative act, votes, resolution, et cetera, immune.

[00:14:11] Speaker 03:
Do you have any example of a vote that was held to be not immune in a speech or debate immunity case?

[00:14:20] Speaker 04:
Judge Garcia, we do have, obviously, the Trump v. Mazar case, and that's one where you have congressional action, congressional subpoena that's reviewed and actually held to be invalid.

[00:14:30] Speaker 03:
That's holding the subpoena invalid.

[00:14:33] Speaker 03:
Everything you're saying right now would be great and maybe relevant arguments if this was an appeal in a criminal contempt prosecution or a civil contempt case.

[00:14:44] Speaker 03:
That's not what this is.

[00:14:46] Speaker 03:
Judge Garcia.

[00:14:48] Speaker 03:
Give you something specific to answer.

[00:14:49] Speaker 03:
Yes.

[00:14:50] Speaker 03:
As Judge Millett referenced in Eastland, the argument was the only point of this subpoena is to infringe my First Amendment rights.

[00:14:59] Speaker 03:
And the Supreme Court's answer was not, well, you know, you aren't so right about your First Amendment.

[00:15:05] Speaker 03:
The answer was that doesn't matter.

[00:15:07] Speaker 03:
It's a subpoena and they have speech or debate immunity.

[00:15:10] Speaker 03:
So to hear it is a vote and presentation of a resolution.

[00:15:14] Speaker 03:
What's the difference?

[00:15:15] Speaker 04:
Well, I do submit that in Eastland, the premise was there's a valid legislative purpose that's being served.

[00:15:21] Speaker 04:
And the court specifically articulated why it's so concluded.

[00:15:24] Speaker 04:
And there are other cases.

[00:15:25] Speaker 03:
It says there's a narrow inquiry into whether this is an appropriate realm of legislation.

[00:15:32] Speaker 03:
So let me ask a different way.

[00:15:34] Speaker 03:
The best of the cases you cited in your brief, at least, were cases like Doe v. McMillan and Kilbourne in Eastland.

[00:15:42] Speaker 03:
Explain to me why those don't show exactly why you're wrong for the following reason.

[00:15:46] Speaker 03:
In each of those cases, there was a committee vote to do something that was held immune.

[00:15:52] Speaker 03:
Then someone went out and did the thing, either arresting or publishing a report, and that was held not immune.

[00:15:59] Speaker 03:
You are suing over the first thing, the core legislative act that is always held to be immune.

[00:16:05] Speaker 04:
Judge Garcia, I think we're not only suing over that.

[00:16:08] Speaker 04:
We are also suing over the contempt resolution and the follow-up efforts on that, which we seek to have declared invalid.

[00:16:13] Speaker 04:
Why is that different from the vote?

[00:16:15] Speaker 03:
And the subpoena.

[00:16:17] Speaker 03:
A vote.

[00:16:17] Speaker 03:
So the first thing, you disclaim the subpoena.

[00:16:20] Speaker 03:
The next thing that happened is a vote on contempt, which I could quote you language from five of our cases that say, of course, a vote on the floor is immune.

[00:16:30] Speaker 03:
And that would be true in Doe v. McMillan, even if it had no legislative purpose whatsoever.

[00:16:35] Speaker 04:
Well, to be clear, I think in most of the speech and debate clause cases, it's a suit against the individual members in terms of damages and something that they have to be liable for.

[00:16:43] Speaker 04:
All we are seeking to take issue with is the official action that comes out of it.

[00:16:48] Speaker 04:
It's when it's when the committee reports out and when it says that our clients should be held in contempt.

[00:16:54] Speaker 04:
That is what occasions a lawsuit.

[00:16:56] Speaker 04:
And that is what the relief is driving.

[00:16:58] Speaker 04:
The fact that there was voting activity leading up to it, I don't think means that the outgrowth of any challenge to that.

[00:17:06] Speaker 03:
So a vote is a core legislative act, but presenting a resolution on the Senate floor is not a core legislative act?

[00:17:15] Speaker 04:
I think that it depends on whether it is in furtherance of a legislative function.

[00:17:19] Speaker 04:
If it is, and I don't deny that it is.

[00:17:22] Speaker 02:
Is it a legislative function to enforce a subpoena?

[00:17:24] Speaker 04:
Well, Judge Millett, this goes back to if Dr. De La Torre... I would like an answer to that question.

[00:17:29] Speaker 02:
Is it a legislative function for a committee to try and enforce its subpoena?

[00:17:33] Speaker 04:
If it's a valid subpoena enforcement effort, yes, it is.

[00:17:36] Speaker 02:
If that legislative effort is solely to penalize... That's the answer to the enforcement question when it gets to court.

[00:17:45] Speaker 02:
I'm asking you whether a committee's decision to enforce its subpoena

[00:17:51] Speaker 02:
is a legislative act, apart from whatever the context of any hearing was going to be.

[00:17:57] Speaker 04:
To take the language of the Supreme Court in Watkins, if it's just a congressional power to expose for the sake of it, if it is solely- That's not what enforcing a subpoena is.

[00:18:05] Speaker 02:
We need respect for our subpoenas.

[00:18:07] Speaker 04:
Well, if the respect for the subpoena is in the nature of because we're entitled to answers to our questions, notwithstanding a valid Fifth Amendment invocation.

[00:18:17] Speaker 04:
My respectful submission, and I don't think it's especially controversial, is no, that is not per force.

[00:18:22] Speaker 02:
I'm sorry, Judge Garcia.

[00:18:23] Speaker 02:
I just wanted to clarify that.

[00:18:24] Speaker 02:
So that's not a core legislative act because it is what the defense.

[00:18:29] Speaker 04:
In a circumstance where the defendants have not identified, here is how this is advancing a legislative function in the eyes of some reasonable legislator with great deference.

[00:18:40] Speaker 04:
If they haven't done that much, I don't think they've established their immunity.

[00:18:43] Speaker 03:
This is what I'm getting at.

[00:18:44] Speaker 03:
Why is that the question?

[00:18:46] Speaker 03:
Let me just read to you from Dovi McMillan.

[00:18:49] Speaker 03:
We might disagree whether it was necessary or even remotely useful to include the names of individual children who

[00:18:56] Speaker 03:
In a committee report, they voted to publicize.

[00:18:59] Speaker 03:
But that, now I'm paraphrasing, is entirely irrelevant.

[00:19:03] Speaker 03:
It does not matter whether there was a valid legislative purpose to including these children's names in this report.

[00:19:08] Speaker 03:
They are entirely immune from a suit against them

[00:19:12] Speaker 04:
But but that's the line it's drawing, Judge Garcia, before that had left and gone outside of the committee.

[00:19:18] Speaker 04:
That's the line that McMillan draws.

[00:19:20] Speaker 04:
And then when that is disseminated publicly, when it becomes an official issuance from the committee, that is when the immunity does not necessarily attach.

[00:19:28] Speaker 03:
And throughout the legislators themselves were entirely immune.

[00:19:33] Speaker 03:
The defendant who was not immune.

[00:19:35] Speaker 03:
Was the publisher, just like in Kilmore, the defendant that was not immune was the sergeant at arms for the very same thing.

[00:19:44] Speaker 03:
The vote to approve the sergeant at arms to go arrest the person that legislators were immune.

[00:19:49] Speaker 04:
And I also point to this courts on bond decision in McShirley, where it basically says there can be exceptions to the immunity when a particular action has gone beyond the pale.

[00:19:59] Speaker 04:
And there is an equation between the agents of the members with the members themselves.

[00:20:03] Speaker 04:
I don't think that that is controversial.

[00:20:05] Speaker 04:
So I don't think saying, oh, it's the sergeant in arms or, oh, it's some publisher.

[00:20:11] Speaker 03:
I think one read of McShirley would be if the legislators themselves had gone out and searched this person's home, they would not be immune.

[00:20:20] Speaker 03:
The reason would not be the reason would be that's not a core legislative act.

[00:20:26] Speaker 04:
Well, I think that the reason it wouldn't be a core legislative act is because it's conceitedly extraneous to the investigation, which is very important to this court and McShirley.

[00:20:34] Speaker 04:
And the analog for that is to say, if the questions that are going to be posed to Dr. De La Torre, if the efforts to enforce this subpoena are meant solely to chill and punish

[00:20:46] Speaker 04:
his exercise of the Fifth Amendment right, and no good faith legislator could think that that's going to yield actual information in furtherance of the investigation.

[00:20:54] Speaker 04:
It is extraneous.

[00:20:55] Speaker 04:
It is anathema to constitutional rights, and it should be reviewable by a court.

[00:21:00] Speaker 04:
And all we're asking the court to hold here is that the immunity decision that issued at the very threshold with the plaintiff expected to bear the burden explicitly, that was an error.

[00:21:11] Speaker 04:
And the rest of this case, Your Honors, Judge Millett,

[00:21:14] Speaker 02:
Is that part of your discovery that you want what questions were going to be asked?

[00:21:18] Speaker 04:
In the nature of what we were discussing, to identify... No, is that part of discovery?

[00:21:22] Speaker 02:
Not telling them to explain themselves.

[00:21:25] Speaker 02:
What questions were going to be asked?

[00:21:27] Speaker 02:
Is that part of your discovery?

[00:21:29] Speaker 04:
It does not need to be an exhaustive list where they prevent.

[00:21:32] Speaker 02:
It would be, can you identify... Do you want that in discovery, yes or no?

[00:21:36] Speaker 04:
We would like to see questions that would be posed and would be expected to further the investigation without implicating the Fifth Amendment.

[00:21:42] Speaker 04:
I think that would be instructive for us and for the district court.

[00:21:45] Speaker 04:
Just to take your initial posing the question, I don't think it's an exhaustive list of all actual questions that Congress could pose and they couldn't go outside.

[00:21:53] Speaker 04:
All we're asking is show your good faith.

[00:21:56] Speaker 04:
Show that there was something that you meant to achieve other than penalizing the Fifth Amendment invocation.

[00:22:01] Speaker 04:
That could suffice.

[00:22:02] Speaker 04:
But we didn't get that far.

[00:22:04] Speaker 04:
We didn't get that far because under every reading of the complaint, under any possible set of facts, the district court concluded that speech and debate clause immunity necessarily attaches.

[00:22:15] Speaker 04:
And my submission stands, your honors.

[00:22:17] Speaker 04:
You would have exactly the same ruling even if,

[00:22:20] Speaker 04:
Dr. De La Torre had appeared, had invoked his Fifth Amendment right in response to specific questions, and was still held in contempt solely to penalize the Fifth Amendment invocation, if your honors affirm the ruling that is before you, that would be no more reviewable than what you have now.

[00:22:35] Speaker 02:
I just want to understand this analogy or hypothetical.

[00:22:40] Speaker 02:
You're hypothesizing that if he had come and answered what questions he could and invoked the Fifth Amendment in response to others...

[00:22:51] Speaker 02:
And then if the committee tried to hold him in contempt for invoking the Fifth Amendment.

[00:22:56] Speaker 04:
Correct.

[00:22:58] Speaker 04:
I circle back to Judge Garcia and what we were discussing, everything that you were identifying, Judge Garcia, about the legislators, about their votes, about where this activity was originating from.

[00:23:08] Speaker 04:
All of that would stand in this scenario that I was just discussing with Judge Malep.

[00:23:12] Speaker 04:
And I don't think that squares with the larger line of Supreme Court precedent and with the line that this court was drawing and enforcing maturely.

[00:23:20] Speaker 04:
I think the ruling that you have, the view that you have of speech and debate immunity as it's before this court is too broad and based upon an incorrect premise as to who bears the burden.

[00:23:29] Speaker 04:
And I could go further, Judge Millett.

[00:23:31] Speaker 04:
I don't think that there is real argument.

[00:23:33] Speaker 04:
about to the extent that there is a burden of proof here, that burden of proof is on the defendants who are invoking immunity.

[00:23:40] Speaker 04:
That's black letter law.

[00:23:41] Speaker 04:
And the district court simply got that wrong.

[00:23:44] Speaker 04:
I think it's an important enough case to correct that error, send it back to the district court, and see what happens once the burden is properly placed where it belongs, on the defendants invoking immunity.

[00:23:55] Speaker 04:
I know I've gone well over my time, Judge Henderson.

[00:23:58] Speaker 04:
If there aren't further questions, I'd try to reserve a little bit of time for above.

[00:24:02] Speaker 02:
All right, thank you, Ms.

[00:24:04] Speaker 02:
Rivera.

[00:24:05] Speaker 01:
May it please the court, Vivian Rivera on behalf of Senate appellees who were the defendants in the lower court.

[00:24:11] Speaker 01:
The district court properly dismissed Dr. De La Torre's lawsuit against the Senate committee and its members for lack of jurisdiction on speech or debate clause grounds.

[00:24:20] Speaker 01:
Now specifically, Dr. De La Torre sued Senate defendants challenging the subpoena issued to him.

[00:24:25] Speaker 01:
That was count one of the complaint.

[00:24:27] Speaker 01:
The committee's ruling requiring his attendance at the hearing and the committee's voting to report a resolution for criminal contempt to the Senate.

[00:24:35] Speaker 01:
claiming these actions violated his constitutional rights.

[00:24:39] Speaker 01:
Under clear precedent of this circuit and of the Supreme Court, the district court correctly found that the committee's actions fall squarely within the legislative sphere, and thus are legislative acts for which Senate defendants are absolutely immune from suit.

[00:24:54] Speaker 01:
This court should affirm the dismissal.

[00:24:57] Speaker 01:
um i do want to position that there was a valid legislative purpose for these votes and the resolution or that that is irrelevant um for purposes of this analysis we don't believe legislative purpose is relevant in the analysis under the gravel test we don't think it's relevant but there was a legislative purpose here but we don't think it's relevant to the court's analysis on whether or not this is a legislative act

[00:25:23] Speaker 01:
When you're looking at a legislative act, all of the acts challenge, you look at the conduct alleged stripped away of any characterizations of purpose, motive, intent.

[00:25:32] Speaker 01:
And so when looking at the acts challenge here, as your honor referenced when opposing counsel was up here, these are core legislative acts.

[00:25:42] Speaker 01:
The act of issuing a subpoena, as Judge Millett referenced in the Eastland matter, core legislative act.

[00:25:47] Speaker 01:
The act of overruling procedural objections to those subpoenas necessarily fall under the subpoena investigative power of a committee.

[00:25:56] Speaker 01:
And voting to report something in committee to the full Senate, there's clear precedent that those are all core legislative acts.

[00:26:03] Speaker 01:
And once an act is deemed to be a legislative act, the protections of the speech or debate absolute immunity are triggered, and those protections are absolute.

[00:26:16] Speaker 02:
Does the committee have any history of seeking contempt against someone for invoking the Fifth Amendment, showing up, answering questions, invoking the Fifth Amendment?

[00:26:28] Speaker 01:
I believe there are a line of criminal contempt cases along those lines, Judge Millett.

[00:26:34] Speaker 01:
But our position on that is that if the witness had showed up, assuming your hypothetical that you raised with Mr. Schaefer when he was up here, assuming that Dr. De La Torre had shown up and had invoked the Fifth Amendment to all questions and the committee held him in contempt for doing that,

[00:26:52] Speaker 01:
He does have a remedy at that point.

[00:26:55] Speaker 01:
He can stand on his objections, go into contempt, and raise his defenses in that proceeding.

[00:27:02] Speaker 01:
What he cannot do is what he did in this case, is sue a Senate committee and members of Congress for core legislative acts.

[00:27:10] Speaker 01:
That is not allowed.

[00:27:12] Speaker 01:
He has an opportunity to raise these issues and raise these defenses if a criminal proceeding is brought against him.

[00:27:19] Speaker 01:
If the Senate had acted on the civil enforcement resolution and a civil enforcement action had been brought against him, he would be able to raise arguments in that proceeding.

[00:27:27] Speaker 01:
But he cannot do so in an affirmative way, suing members of Congress for core legislative acts as he did here.

[00:27:35] Speaker 03:
Part of his concern is that he can't make you bring a civil contempt and he can't make the DOJ bring a criminal prosecution.

[00:27:44] Speaker 03:
And so he's sort of left without any way of clearing his name.

[00:27:47] Speaker 03:
Why isn't that something that should concern us?

[00:27:51] Speaker 01:
Your Honor, it's not that it doesn't concern us.

[00:27:53] Speaker 01:
It's a separation of powers issue here.

[00:27:55] Speaker 01:
And the issue here is whether Congress can act independently without judicial interference or without the burdens of litigation or the perils of criminal prosecution.

[00:28:07] Speaker 01:
We recognize that there are cases the Supreme Court has recognized and this circuit has recognized the potential for abuse arising from the clause.

[00:28:16] Speaker 01:
But that is a tradeoff that the framers intended, made a conscious choice to protect and secure the independence of the legislative branch.

[00:28:24] Speaker 01:
So we recognize that potential, but that is the law in this circuit and that is the law clear precedent of the Supreme Court.

[00:28:35] Speaker 03:
Can I ask just briefly?

[00:28:37] Speaker 03:
Yes.

[00:28:38] Speaker 03:
Eastland does say that or suggest that there is some kind of narrow review of whether the general subject is an appropriate subject.

[00:28:52] Speaker 03:
Do you agree?

[00:28:54] Speaker 03:
You stood up and advanced one version of this that would just be if it's a core legislative act, categorically immunity applies.

[00:29:01] Speaker 03:
Do you think we also have to do

[00:29:04] Speaker 03:
this sort of narrow review that Eastland suggests or and how would you characterize what that inquiry is?

[00:29:13] Speaker 01:
Yes, in Eastland, the court did reference this narrow inquiry as to whether the investigation falls on a subject matter with legislation could be had.

[00:29:22] Speaker 01:
And I believe that that was surely met here in this case.

[00:29:27] Speaker 03:
I'm not exactly sure what... You're not disputing that we have to do that inquiry.

[00:29:30] Speaker 03:
You're just saying it's very different than asking if there was a specific legislative purpose to... Yes, Your Honor.

[00:29:37] Speaker 03:
...enforcing the subpoena.

[00:29:38] Speaker 02:
Yes, Your Honor.

[00:29:41] Speaker 02:
Can we ask you what...

[00:29:43] Speaker 02:
First of all, is there still a subpoena to enforce?

[00:29:48] Speaker 02:
There's a new Congress.

[00:29:50] Speaker 02:
I'm not quite sure how this works.

[00:29:54] Speaker 01:
Yes, Your Honors.

[00:29:55] Speaker 01:
As far as the civil enforcement part of the case, that resolution lapsed at the end of the 118th Congress, which adjourned.

[00:30:04] Speaker 01:
We're now in the second session of the 119th Congress.

[00:30:08] Speaker 01:
So that is lapsed, and there's no—that is lapsed.

[00:30:12] Speaker 02:
So there's no subpoena.

[00:30:13] Speaker 02:
He's not under a subpoena anymore.

[00:30:16] Speaker 02:
You still define?

[00:30:17] Speaker 02:
I mean, I know he in the past defined one, but there's nothing pending.

[00:30:21] Speaker 01:
There's nothing pending.

[00:30:22] Speaker 01:
And as far as the criminal aspect of it, that is committee action is complete.

[00:30:26] Speaker 01:
Senate action is complete.

[00:30:27] Speaker 01:
So as far as both of those actions, it's done.

[00:30:30] Speaker 01:
Senate and committee action is complete.

[00:30:33] Speaker 02:
And then what do we do with the change in personnel on the committee?

[00:30:38] Speaker 02:
You know, it seems like

[00:30:42] Speaker 02:
I believe you all said to sort of substitute in the new ones in district court.

[00:30:45] Speaker 02:
District court didn't say anything.

[00:30:47] Speaker 02:
Our court did the substitution.

[00:30:49] Speaker 02:
Does that rule, which is normally public officers, executive branch, where someone literally does just take a position, when new members come in, do they take the seat of somebody who used to be there or not?

[00:31:06] Speaker 01:
That is a great question.

[00:31:07] Speaker 01:
I'm trying to figure out how this works.

[00:31:08] Speaker 01:
Yes.

[00:31:09] Speaker 01:
No, that is a great question, Your Honor.

[00:31:10] Speaker 01:
And just to clarify, the district court, Sue Esponte, referenced Rule 25D and issued the substitution of the senators.

[00:31:21] Speaker 01:
It's our position where it's unclear how that rule necessarily applies to members of Congress for the reasons that Your Honor just referenced.

[00:31:28] Speaker 01:
It's

[00:31:29] Speaker 01:
Unlike an executive branch official, like a secretary of state who does step into the shoes of the prior secretary, members of Congress are not in that way.

[00:31:38] Speaker 01:
So a new member who gets elected does not automatically take, for example, all the committee memberships that that prior member was in.

[00:31:44] Speaker 01:
So it's unclear the extent of how that rule applies here, but our position is that all the defendants here, whether it's the prior members when this complaint was filed or members as of this date, are all improperly named under speech or debate principles.

[00:31:59] Speaker 02:
I am properly or properly?

[00:32:00] Speaker 01:
Are improperly named, should not be named as defendants given their absolute immunity under the speech or debate clause.

[00:32:09] Speaker 02:
Well, we're just trying to figure out who should be the defendant.

[00:32:10] Speaker 02:
I mean, absolute immunity is a jurisdictional question.

[00:32:12] Speaker 02:
We do get to decide whether your absolute immunity exists or not.

[00:32:16] Speaker 02:
So we have to have a defendant here to do that.

[00:32:19] Speaker 02:
So should it just be the committee?

[00:32:21] Speaker 02:
Is that your view?

[00:32:22] Speaker 01:
We believe it.

[00:32:23] Speaker 01:
Well.

[00:32:23] Speaker 02:
I'm not talking about the merits here.

[00:32:25] Speaker 02:
I'm talking about...

[00:32:27] Speaker 01:
We've got to caption the case in some way.

[00:32:30] Speaker 01:
It's unclear, Your Honor, how that rule applies here.

[00:32:33] Speaker 01:
For purposes, it could be the Senate committee.

[00:32:38] Speaker 01:
Members make up that committee, so it's unclear.

[00:32:44] Speaker 02:
You don't have a position on what we're supposed to do.

[00:32:47] Speaker 02:
Who should be in the caption?

[00:32:48] Speaker 02:
I mean, you haven't moved to amend the caption or changed it in any way.

[00:32:51] Speaker 01:
Well, we moved to dismiss the claim against all the named defendants here, including the committee itself and all of the members.

[00:32:56] Speaker 02:
That's the judgment that you want, right?

[00:32:58] Speaker 02:
Yes.

[00:32:59] Speaker 02:
Okay.

[00:32:59] Speaker 02:
And the first thing I have to do is decide jurisdiction, and that's where your absolute immunity comes in.

[00:33:04] Speaker 02:
This is not a backdoor way of saying you don't get or answering any questions.

[00:33:10] Speaker 02:
I understand, Your Honor.

[00:33:11] Speaker 02:
Or saying do get or don't get it.

[00:33:13] Speaker 01:
Yes, yes, I understand, Your Honor.

[00:33:14] Speaker 02:
I'm just trying to understand...

[00:33:17] Speaker 02:
formally how the case, who the defendants are when we're thinking, because you've made standing arguments and other arguments as well, when we think about the arguments you're making, who's on the receiving end of an order, if we were to disagree with you on the absolute immunity?

[00:33:35] Speaker 01:
In that case, Your Honor, it would be the Senate committee itself.

[00:33:39] Speaker 01:
Okay.

[00:33:46] Speaker 01:
Unless the court has any more questions.

[00:33:47] Speaker 01:
Thank you.

[00:33:48] Speaker 01:
We ask the court to affirm.

[00:33:49] Speaker 01:
Thank you.

[00:33:51] Speaker 04:
Thank you, Your Honors.

[00:33:51] Speaker 02:
Just to clarify one thing following up on that.

[00:33:54] Speaker 02:
So I think it was your statement of party statement of parties that your position is Senator Rand Paul should not be a defendant.

[00:34:04] Speaker 04:
He didn't vote in favor of the resolution.

[00:34:06] Speaker 02:
Should he or should he not be?

[00:34:08] Speaker 04:
We don't believe that he is.

[00:34:10] Speaker 04:
We have not named him as a defendant for that reason.

[00:34:11] Speaker 02:
Because of the way he voted or failed to vote.

[00:34:13] Speaker 04:
Correct.

[00:34:14] Speaker 04:
Right.

[00:34:16] Speaker 04:
And Ms.

[00:34:16] Speaker 04:
Rivera's submission is that there need be no indication of a valid legislative purpose.

[00:34:22] Speaker 04:
We simply disagree with that, Judge Garcia.

[00:34:24] Speaker 04:
And I think that this court's precedent, and together with Supreme Court precedent, does say the inquiry is narrow, yes, but it's also essential.

[00:34:32] Speaker 04:
The Brewster case, too, is one where there was a legislator who is charged with bribery for the official act that was taken.

[00:34:39] Speaker 04:
And the Supreme Court did not have difficulty saying there's such a thing as what is on the face of it, a valid legislative act that's motivated by a bad motive.

[00:34:48] Speaker 03:
There was a lot of hoops explaining why he was not being held to have that the act was his separate agreement, not the vote, which doesn't exactly help.

[00:35:02] Speaker 04:
I think in the Watkins case, too.

[00:35:04] Speaker 04:
I think in the McShirley case, we've seen case after case after case that says the immunity should not be placed at war with some other constitutional provision.

[00:35:13] Speaker 04:
And our submission is that's what you have in this case.

[00:35:16] Speaker 04:
And what...

[00:35:18] Speaker 04:
Well, Judge Millett said the opposite when the court was satisfied that you had a valid legislative act and something in further incentive.

[00:35:25] Speaker 04:
Well, my only submission to the court that takes issue with that premise is not that there was a valid legislative act.

[00:35:34] Speaker 04:
It's the fact that there is some valid investigation does not mean everything done under auspices of that investigation is per force of you.

[00:35:44] Speaker 04:
There should be some showing of bona fides.

[00:35:47] Speaker 04:
There should be some showing that you actually have an act in furtherance of that valid investigation, and that will suffice.

[00:35:55] Speaker 04:
to establish the immunity.

[00:35:57] Speaker 04:
But unless and until that is shown your honors, you have a complaint that should be adjudicated.

[00:36:01] Speaker 04:
And I think that otherwise there's room for real abuse.

[00:36:06] Speaker 04:
And I think precedent being as well as principle being sacrificed because courts have drawn lines and said, here's an instance where Congress has trespassed outside of just what's happening on the floor in terms of speech and debate.

[00:36:20] Speaker 04:
It's doing something official, and it's doing something that is violating some other constitutional provision.

[00:36:26] Speaker 04:
We think we have that when you have the contempt resolution, when you have efforts to make Dr. De La Torre pay a price for what I think the complaint establishes and the facts will establish was a valid Fifth Amendment invocation that was understood by Congress as such.

[00:36:40] Speaker 04:
And if the sole purpose here was to penalize and chill exercise of the Fifth Amendment, that's something that the court should be able to do something about.

[00:36:50] Speaker 04:
That's what we've alleged.

[00:36:51] Speaker 04:
That's what the district court has said can't possibly be decided because you necessarily have an immunity without knowing it anymore.

[00:36:58] Speaker 04:
We think that's wrong.

[00:36:59] Speaker 04:
We think it's wrong starting with the burden allocation, and that would be basis in and of itself for the court to reverse.

[00:37:05] Speaker 04:
And I think from there, we would establish that there is a Fifth Amendment violation and something that goes beyond the scope of the evening.

[00:37:13] Speaker 04:
Thank you, Your Honors.

[00:37:14] Speaker 02:
Thank you.

[00:37:14] Speaker 02:
We'll take a brief recess while the courtroom is closed.