[House Hearing, 114 Congress] [From the U.S. Government Publishing Office] AFFIRMING CONGRESS' CONSTITUTIONAL OVERSIGHT RESPONSIBILITIES: SUBPOENA AUTHORITY AND RECOURSE FOR FAILURE TO COMPLY WITH LAWFULLY ISSUED SUBPOENAS ======================================================================= HEARING BEFORE THE COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS SECOND SESSION __________ September 14, 2016 __________ Serial No. 114-92 __________ Printed for the use of the Committee on Science, Space, and Technology [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://science.house.gov _____________ U.S. GOVERNMENT PUBLISHING OFFICE 22-561PDF WASHINGTON : 2017 __________________________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Publishing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HON. LAMAR S. SMITH, Texas, Chair FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas F. JAMES SENSENBRENNER, JR., ZOE LOFGREN, California Wisconsin DANIEL LIPINSKI, Illinois DANA ROHRABACHER, California DONNA F. EDWARDS, Maryland RANDY NEUGEBAUER, Texas SUZANNE BONAMICI, Oregon MICHAEL T. McCAUL, Texas ERIC SWALWELL, California MO BROOKS, Alabama ALAN GRAYSON, Florida RANDY HULTGREN, Illinois AMI BERA, California BILL POSEY, Florida ELIZABETH H. ESTY, Connecticut THOMAS MASSIE, Kentucky MARC A. VEASEY, Texas JIM BRIDENSTINE, Oklahoma KATHERINE M. CLARK, Massachusetts RANDY K. WEBER, Texas DON S. BEYER, JR., Virginia JOHN R. MOOLENAAR, Michigan ED PERLMUTTER, Colorado STEVE KNIGHT, California PAUL TONKO, New York BRIAN BABIN, Texas MARK TAKANO, California BRUCE WESTERMAN, Arkansas BILL FOSTER, Illinois BARBARA COMSTOCK, Virginia GARY PALMER, Alabama BARRY LOUDERMILK, Georgia RALPH LEE ABRAHAM, Louisiana DARIN LaHOOD, Illinois WARREN DAVIDSON, Ohio C O N T E N T S September 14, 2016 Page Witness List..................................................... 2 Hearing Charter.................................................. 3 Opening Statements Statement by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 4 Written Statement............................................ 6 Statement by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives............................................. 10 Written Statement............................................ 12 Witnesses: Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School Oral Statement............................................... 15 Written Statement............................................ 17 Mr. Ronald D. Rotunda, Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law Oral Statement............................................... 45 Written Statement............................................ 47 Mr. Charles Tiefer, Professor of Law, University of Baltimore; Former Acting General Counsel, U.S. House of Representatives Oral Statement............................................... 62 Written Statement............................................ 64 Ms. Elizabeth Price Foley, Professor of Law, Florida International University College of Law Oral Statement............................................... 85 Written Statement............................................ 88 Discussion....................................................... 114 Appendix I: Answers to Post-Hearing Questions Mr. Charles Tiefer, Professor of Law, University of Baltimore; Former Acting General Counsel, U.S. House of Representatives... 152 Appendix II: Additional Material for the Record Documents submitted by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives.................................. 156 Article submitted by Representative Frank D. Lucas, Subcommittee on Space, Committee on Science, Space, and Technology, U.S. House of Representatives....................................... 791 Articles submitted by Representative Randy Neugebauer, Subcommittee on Space, Committee on Science, Space, and Technology, U.S. House of Representatives...................... 795 Article submitted by Representative Mo Brooks, Committee on Science, Space, and Technology, U.S. House of Representatives.. 802 Article submitted by Representative Donald S. Beyer, Committee on Science, Space, and Technology, U.S. House of Representatives.. 807 Article submitted by Representative Warren Davidson, Committee on Science, Space, and Technology, U.S. House of Representatives.. 822 Documents submitted by Representative Paul Tonko, Committee on Science, Space, and Technology, U.S. House of Representatives.. 825 Article submitted by Representative Donna Edwards, Committee on Science, Space, and Technology, U.S. House of Representatives.. 834 Article submitted by Representative Barry Loudermilk, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 836 Article submitted by Representative Brian Babin, Committee on Science, Space, and Technology, U.S. House of Representatives.. 839 Documents submitted by Representative Gary Palmer, Committee on Science, Space, and Technology, U.S. House of Representatives.. 842 Documents submitted by Representative Ed Perlmutter, Committee on Science, Space, and Technology, U.S. House of Representatives.. 853 Article submitted by Representative Drain LaHood, Committee on Science, Space, and Technology, U.S. House of Representatives.. 856 Documents submitted by Representative Katherine M. Clark, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 860 Article submitted by Representative Bruce Westerman, Committee on Science, Space, and Technology, U.S. House of Representatives.. 880 AFFIRMING CONGRESS' CONSTITUTIONAL OVERSIGHT RESPONSIBILITIES: SUBPOENA AUTHORITY AND RECOURSE FOR FAILURE TO COMPLY WITH LAWFULLY ISSUED SUBPOENAS ---------- WEDNESDAY, SEPTEMBER 14, 2016 House of Representatives, Committee on Science, Space, and Technology, Washington, D.C. The Committee met, pursuant to call, at 10:02 a.m., in Room 2318 of the Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Committee] presiding. [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. The Committee on Science, Space, and Technology will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. Welcome to today's hearing titled ``Affirming Congress' Constitutional Oversight Responsibilities: Subpoena Authority and Recourse for Failure to Comply with Lawfully Issued Subpoenas.'' I am going to recognize myself for an opening statement and then the Ranking Member for her opening statement. Today's hearing has dual purposes, one general and one specific. First, this hearing will explore the scope of Congress's investigative authority as a general matter. Second, and in particular, this hearing will affirm the legitimacy of the Committee's ongoing inquiry, which includes the issuance and enforcement of its subpoenas. Let me begin with the factual background. For months, the Science Committee sent correspondence and requests for voluntary cooperation and information from two state Attorneys General and several environmental groups. After these requests were stonewalled, on July 13, 2016, the Committee issued subpoenas for information that relates to the origin of state investigations into scientific research conducted by nonprofit organizations, private companies, and individual scientists. The Committee is concerned that such investigations may have an adverse impact on federally funded scientific research. If this is the case, it would be the responsibility of the Committee to change existing law and possibly appropriate additional funds to even out any such imbalances caused as a result. So far, many of the subpoenas' recipients have failed to meaningfully engage with the Committee or make a good-faith effort to gather and produce responsive documents. In lieu of cooperation, these recipients have provided a myriad of spurious legal arguments. They say, for example, that the Committee lacks authority to conduct this investigation; that responsive documents would be privileged under common law or state law; that the First or Tenth Amendments shield them from having to comply with a Congressional subpoena; or that the subpoena is invalid because it is vague and overbroad. None of these arguments are persuasive. As we will hear today, the Committee has the power to issue these subpoenas and enforce their compliance. In fact, the Committee has a constitutional obligation to conduct oversight any time the United States scientific enterprise is potentially impacted. The documents demanded by the subpoena will inform the Committee about the actions of the Attorneys General and the environmental groups. The documents also will allow the Committee to assess the effects of these actions on America's scientific research and development funding, and the documents demanded will allow the Committee to assess the breadth and depth of the AGs' investigations and inform our understanding of whether their actions have a chilling impact on scientific research and development. Committee staff have repeatedly attempted to reach out to every party to encourage cooperation and compliance with the subpoena. The Committee wants the truth, Americans deserve the truth, and the Constitution requires that we seek the truth. The refusal of the Attorneys General to comply with the Committee's subpoenas should trouble everyone sitting on this dais, everyone in this room, and every American. The question we explore today isn't partisan; it's institutional. What is the scope of Congress' oversight powers? Congress has an obligation and a Constitutional responsibility to enforce its compulsory legal authority where warranted. To the extent that this authority is blunted by parties' rejection of lawfully issued subpoenas, all lawmakers, Republicans and Democrats alike, should be concerned. Allowing subpoenaed parties to ignore compliance based on the politics of the subject sets a dangerous precedent. It diminishes transparency and accountability and undermines Congress' Article I powers in the Constitution. I look forward to hearing about these issues from our witnesses today. All are constitutional law professors with outstanding expertise. They will address Congress's ability and obligation to conduct rigorous oversight and the consequences of allowing those who would like to evade inquiry to do so. These consequences could include depositions, contempt proceedings, and legal actions. [The prepared statement of Chairman Smith follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. That concludes my opening statement, and the gentlewoman from Texas, the Ranking Member, is recognized for hers. Ms. Johnson. Thank you, Mr. Chairman, and good morning. I must say that I am disappointed and disheartened to be here today. Congressional oversight is critically important. It is a fundamental function of our government, and it helps to root out cases of waste, fraud, abuse and mismanagement in federal government. When Congressional oversight is done right, it can help to effect profound positive changes in our society. Since the Science Committee was first established 58 years ago, it has traditionally used its legitimate oversight authority and its investigative tools effectively, identifying technical challenges and helping to resolve real problems, often in a bipartisan manner. But this has changed recently. Today the Majority seems to view its oversight powers as a political tool and the Committee's investigative authority as unbounded. This hearing appears to be the culmination of a politically motivated oversight agenda that has been applauded by oil, gas, and mining interests and broadly condemned by the public, the media and the independent scientific community across the country and around the world. The Committee Majority has abused the Committee's oversight powers to harass NOAA climate scientists, going so far as to threaten former NASA astronaut, and current NOAA Administrator Kathy Sullivan, with contempt, all in an attempt to undercut the notion of human-caused climate change. The Chairman has issued subpoenas in a reckless attempt to obtain the health records of hundreds of thousands of American citizens so they could be provided to tobacco industry consultants--all part of some bizarre attempt to disprove the notion that air pollution is bad for people's health. The Chairman has also demanded documents and testimony from the EPA in a naked attempt to assist a foreign mining company in their active litigation against the U.S. government. That brings us to the latest embarrassment to this Committee in the name of oversight: the Majority's brazen attempts to assist ExxonMobil in the face of legitimate fraud investigations by various Attorneys General. The Majority has claimed that their investigation is about protecting the First Amendment rights of ExxonMobil. However, the law is clear: fraud is not protected by the First Amendment. If any companies in the oil industry defrauded the public or their shareholders in their well-documented disinformation campaign on global warming, then that is a matter for the state Attorneys General and the courts, not the Committee on Science. I also want to take a moment to highlight the irony in the Chairman's nine subpoenas issued to various NGOs. In his stated attempt to protect ExxonMobil's supposed First Amendment rights, the Chairman is unequivocally violating these groups' First Amendment rights to petition the government. I hope all the members of the Majority think long and hard about the precedent the Chairman is setting here, and whether you'd like Democratic members to take these same kinds of actions against certain conservative-minded groups when Democrats are in the Majority. I look forward to hearing from Professor Charles Tiefer, who worked as the General Counsel for the House of Representatives for 11 years, who can help us understand the clear limits to the Committee's legal authority to interfere with ongoing investigations by state law enforcement agencies. The Majority's misguided efforts undermine the Science Committee's important and legitimate oversight authority, and dramatically increase the public's distaste and distrust of this body. That is extremely troubling, particularly at a time when we are confronted with critical scientific and technological challenges affecting the health and safety of the public, the sustainability and diversity of our environment, and the security of our nation and our neighborhoods. These are the issues the Committee should be overseeing, exploring and investigating. In closing, let me be clear. The Majority's actions are not without consequence. Public contempt for the Committee's recent actions may hinder our ability to effectively conduct legitimate oversight in the future. I hope that members of the Majority will take a moment to contemplate the lasting damage to this Committee and to this Congress that will result if we continue down the path we are currently on. Lastly, I would like to enter the Committee's correspondence on this issue into the record. It is not only important that the public hears what you have to say and what I have to say on this subject but I believe it is important the public gets to hear what the nine non-governmental organizations, or NGOs, that utilized their constitutional right to petition the government and the two state law enforcement agencies that are investigating ExxonMobil for potentially defrauding its investors have said about this subject and the Committee's subpoenas to them. I want to submit the letter from the Attorney General of Maryland to the record. Thank you. And I yield back. [The prepared statement of Ms. Johnson follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Without objection, so ordered. [The information appears in Appendix II] Chairman Smith. Thank you, Mrs. Johnson. Let me introduce our witnesses, and our first witness today is Jonathan Turley, a Professor of Public Interest Law at the George Washington University Law School. Professor Turley is a nationally recognized legal scholar who had written extensively in areas that range from constitutional law to legal theory to tort law. He's also worked as a consultant on homeland security and constitutional issues and served as counsel in some of the most notable cases in the last two decades. These include representing Area 51 workers at a secret air base in Nevada, the nuclear couriers at Oak Ridge, Tennessee, and four former U.S. Attorneys General during the Clinton impeachment litigation. Professor Turley received his bachelor's degree from the University of Chicago and his law degree from Northwestern University. Our next witness is Ronald Rotunda, Distinguished Professor of Jurisprudence at Chapman University School of Law. Mr. Rotunda previously served as Special Counsel at the Department of Defense and is a Senior Fellow in constitutional studies at the Cato Institute. Additionally, he served as Commissioner of the Thayer Political Practice Commission in California, a state regulatory agency and California's independent political watchdog. Mr. Rotunda's multitude of published works have been cited more than 1,000 times by state and federal courts at every level from trial courts to the U.S. Supreme Court. Professor Rotunda received both his bachelor's degree and his law degree from Harvard University. Our third witness is Professor Charles Tiefer, a Professor of Law at the University of Baltimore, and Former Acting General Counsel of the U.S. House of Representatives. Mr. Tiefer previously clerked as a law--served as a law clerk for the DC. Circuit and Associate Editor of the Harvard Law Review, a Trial Attorney with the Civil Rights Division of the U.S. Department of Justice, and as Assistant Legal Counsel for the Senate. Professor Tiefer received his bachelor's degree from Columbia College and his law degree from Harvard University. Our final witness is Professor Elizabeth Price Foley, a Professor of Law at Florida International University College of Law. She also serves as Of Counsel for Baker Hostettler LLP, where she practices constitutional and appellate law. Professor Foley is the author of numerous journal articles and op-eds in constitutional law and has penned three books on the topic. She serves on the editorial board of the Cato Supreme Court Review, on the Research Advisory Board of the James Madison Institute, and as a member of the Florida State Advisory Committee of U.S. Commission on Civil Rights. Professor Foley received her bachelor's degree from Emory University, her law degree from University of Tennessee College of Law, and her master's in law degree from Harvard Law School. We welcome you all. It's nice to have this expertise present today. And Professor Turley, we'll begin with you. TESTIMONY OF MR. JONATHAN TURLEY, J.B. & MAURICE C. SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL Mr. Turley. Thank you, Chairman Smith, Ranking Member Johnson, Members of the Committee. Thank you for the honor to address you today. It's also an honor to appear before you with my colleagues and friends, who are the only four people I know of that find subpoena power under Article I to be an exciting subject, and so on behalf of my fellow constitutional dweebs, we thank you. But at the outset I should note that I've been a long advocate for action on combating climate change. Indeed, one of the reasons I voted for President Obama back in 2008 was his position on this issue, but I am called not to give scientific testimony but to give constitutional testimony, and indeed, the question before this Committee should turn on how one views the ultimate wisdom of an investigation or the merits of climate change, it should turn on the Constitution. There are novel questions raised here, an intermix of the Tenth Amendment, First Amendment, statutory issues that are very difficult. In fact, I told the Chairman just now that every time I'm called, the problems seem to get tougher, or I must just be getting older, but this is a tough question, and there are very difficult issues on both sides. However, I have to say in all honesty the suggestion that there is a threshold barrier to the enforcement of the subpoenas by this Committee I believe is fundamentally flawed. This Committee clearly has the ability under Article I to insist on compliance with its subpoenas. Indeed, I think that for public interest groups, many of which I support, the arguments go too far, and for these groups, this amounts to sawing off the branch or sitting on it because, you know, the arguments being made against the Committee are the same arguments that were made against the original investigation in terms of countermanding free speech, associational rights and the like. Legislative authority means nothing unless committees can understand and at times uncover insular actions by institutions or organizations that affect federal law and policy. The Supreme Court has repeatedly emphasized that, and the case in McGrain is a very good example, McGrain versus Daugherty. The Supreme Court said it understood that information is not always volunteered, it's also not always accurate or complete, and that committees need to be able to acquire the information needed to conduct its work. In Wilkinson and other cases, the Supreme Court said that it does not delve into motivations behind committees because that's a slippery slope that the apolitical courts do not feel comfortable in exploring. Many subpoenas will in fact touch on political decisions and associational ties. That's the nature of Congressional investigations. As I say in my testimony, the three factors laid out in Wilkinson, the broad subject matter of an area being authorized, the valid legislative purpose, the pertinence to such broad subject matter in my view is well established in this case. I don't see the basis for a challenge on those issues. Putting aside that you have a disagreement with what the investigation is concerning, for people that object to these individuals, they're making the same types of arguments that it is in fact the state Attorneys General who are intervening and threatening the First Amendment. For those they feel that this is analogous to the McCarthy period, so both sides are raising these McCarthy-era cases and saying that the other side is pursuing critics. For those scientists and companies, they feel like they're being accused of unenvironmental activities instead of un-American activities, and for them, they fear that, you know, the questions amount to are you and have you ever been a climate change denier. Now, obviously I don't think that either side of this Committee wants to return to that very dark period of the Red Scare, and I don't think that the state Attorneys General are trying to do that. I do think that they have been incautious. I do think that what they have done contravenes academic freedom and free speech, even though I agree with their position on climate change. So I would suggest to the Committee that I do not see a threshold objection that can be made on the basis of these being state Attorneys General or environmental groups. There are absolute questions that have been raised, threshold immunities and protections, that I believe are poorly supported. To put it simply, that dog won't hunt, in my view. Now, that doesn't end the question. The constitution only protects us from unconstitutional choices, not bad choices, but if we can strip away the rhetoric, we might be able to get into some type of resolution and preferably a compromise so that this doesn't end up in litigation and then cooler minds might prevail in the debate over global warming. Thank you very much. [The prepared statement of Mr. Turley follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Thank you, Professor Turley. And Professor Rotunda. TESTIMONY OF MR. RONALD ROTUNDA RONALD D. ROTUNDA, DOY AND DEE HENLEY CHAIR AND DISTINGUISHED PROFESSOR OF JURISPRUDENCE, CHAPMAN UNIVERSITY DALE E. FOWLER SCHOOL OF LAW Mr. Rotunda. Thank you for inviting me. Last spring, the Attorney General of New York, 16 other Attorneys General, all of them Democratic except for one Independent, announced they're going to investigate global warming. At the press conference, Eric Schneiderman said that the bottom line was simple: climate change is real, it is a threat. Meanwhile, Senator Whitehouse has encouraged the Department of Justice to investigate it and institute grand- jury investigations and possible criminal prosecution. Now, I assume that global warming is real, and humans cause it. That still does not justify criminal prosecution of those who seek to prove the contrary. If you think the science is wrong, then attack the science, not the messengers. First, the Committee needs to find out what's going on on the state level so they can recommend appropriate legislation. This is--Representative Johnson said this is a matter for the courts. Of course it's a matter for the courts, the Department of Justice, but it's also a matter for this Committee. In fact, if Congress cannot investigate things like this, the Senate Watergate Committee would never have gotten off the ground. I was Assistant Majority Counsel there, and we were investigating things that were also--could be before the courts, could be investigated by the Department of Justice, but we didn't think they were. At the press conference, Mr. Schneiderman had next to him Vice President Gore, who stood proudly in saying that we can't allow these fossil fuel industry and people investigating to mislead the public about the health of our planet. Recently leaked documents show that George Soros is a major funder of Al Gore to the tune of $10 million a year for three years to his Alliance for Climate Protection. The American people really have a right to know and this Committee has a right to know to see if they should enact appropriate legislation, if Mr. Schneiderman is working on his own or is he part of a corrupt deal with some of these climate groups and George Soros. In fact, in one of those investigations, one of the parties has asked for any common interest agreements he has with private activists. Mr. Schneiderman refuses to comply. People that don't comply with subpoenas have something to hide. That's why they don't comply. As I mentioned in my written statement, Professor Jerry Mitrovica of Harvard said he likes investigating the climate of 3 million years ago or more because he said that's safer from the politically charged scientific atmosphere we have now. That should be scary with all of us that scientists including this one who believes in global warming, apparently is worried about not giving the politically correct answer. The state prosecutor's inaction and refusal to comply with subpoenas reminds me of the biblical verse about the person who saw the mote in his brother's eye while ignoring the beam in his own eye. That beam may well be billionaire George Soros. Now, my second major point is that the government has repeatedly been wrong about what is scientific truth. That should give you a little bit of pause when you say you should investigate to see if other officials, in this case state officials, are interfering with scientific inquiry. There's the old saw about the three lies of the 20th century: the check's in the mail, I'll love you just as much in the morning, I'm from the government and I'm here to help you. Then there's the three lies of the 21st century: My BMW is paid for, this is only a cold sore, and I'm from the government and here to help you. Some things never change, and that last statement never changes. The government suffers from the fatal conceit that it knows what's best and will refuse to reply to the subpoenas to tell us what's going on. Now, the government's been wrong before. In 1991, the World Health Organization said that coffee was a possible carcinogen and you should avoid drinking it. They repeatedly warned us about the cancer risk. We kept drinking coffee. Starbucks added new coffee houses about as fast as rabbits multiply. Starbucks never publicized the WHO findings--the World Health Organization--and now WHO says, sorry, we made a mistake. Forensic evidence--for decades, state and federal governments have assured us with all the certainty of New York Attorney General Schneiderman, assured us about global warming. They're assured us that their scientific and forensic analysis is trustworthy. The government's prosecutors including Mr. Schneiderman routinely introduce scientific evidence. Now we know they may well be wrong. The President's Advisory Council says that it's become increasingly clear that lack of rigor in the assessment of the scientific inquiry in forensic evidence is not just a hypothetical problem but a real one. Maybe Mr. Schneiderman should investigate that in his home state. Oh, my time is almost up and I have so much more to say, but we've been wrong about whole milk. People followed the food pyramid. They cut back their use of wheat, eggs, red meat. That dropped 17 percent or more, and diabetes doubled, and we now find out that some of those things are actually good for you. In the 1970s, scientists were unequivocal, many of them were unequivocal, there's going to be global cooling, the next Ice Age. They may be right, but it's like a stopped clock. If you say enough, eventually you're right about something. Thank you very much. [The prepared statement of Mr. Rotunda follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Thank you, Professor Rotunda. And Professor Tiefer. TESTIMONY OF MR. CHARLES TIEFER, PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE; FORMER ACTING GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES Mr. Tiefer. Thank you for the opportunity to testify today. I served in the House General Counsel's Office for 11 years, becoming General Counsel of the House of Representatives. Since then I have been a Professor at the University of Baltimore School of Law. So I have lengthy, full- time experience in the House including extensive work on Congressional subpoenas and contempt. I stood behind the dais of committees like this many, many, many times, which few others have done, advising chairmen on the legitimate lawful use of Congressional oversight authority. I note that I've kept my hand in in testifying in a bipartisan way. Chairman Sensenbrenner called me as a lead witness in a hearing. I was Chairman Issa's lead witness in a hearing. So no House committee has ever tried nor should ever try to enforce subpoenas against state Attorneys General. I can say none has ever tried based on extensive firsthand experience of mine, the literature on investigations, and all the research for this hearing. The Committee has failed to identify even one single House subpoena enforcement in 200 years to a state attorney general. The reason: It's never happened. Never. Today, a House committee with no precedent is going squarely against a key component of state sovereignty. Consider also that the only enforcement route is statutory criminal contempt of Congress under 2 U.S.C. 192, inherent contempt, meaning that the House itself acts as a court and holds a trial itself is a nonstarter. There's not been inherent contempt since 1935. There's another rare, specialized kind of matter, non- statutory contempt. It's been done for two executive officials, Myers and Holder, but these went ahead because the claim which was their claim of federal executive privilege rendered these unsuitable for regulatory statutory methods that simply don't apply to states. There could never be contempt enforcement, criminal contempt enforcement, by the Justice Department or by courts against state Attorneys General. Now, I want to say that the gravamen of today's state Attorney General investigations is that ExxonMobil made statements to investors about the absence of climate risk while meanwhile they had files of scientific studies in their own offices showing the perils. So the Exxon statements conflicted factually and materially with the company's own extensive record of research. It was a climate peril they knew about and lied about that state Attorneys General investigating. The supposed constitutional rights explanation by the Majority, that the people in Exxon's pay, in Exxon's offices were exercising First Amendment rights is without merit. Fraud investigation is the legitimate bread and butter of state Attorneys General, and fraud is not protected by these rights. I might note that the New York Attorney General who is taking the lead here has special statutory authority called the Martin Act to proceed against misleading investors in this way. The Committee has also issued extremely broad subpoenas against environmental groups. These are groups that petition state agencies regarding potential fraud by ExxonMobil involving statements about climate change. Statements, I might note, that were covered extensively by the Los Angeles Times last year. Traditionally, broad subpoenas have not been enforceable against advocacy groups. The rights of such groups of free association would be negated by such broad subpoenas. The key precedent, protecting such advocacy groups, is Gibson versus Florida Legislative Investigative Committee. The key group protected by these cases was the NAACP. There's a clear parallel between the rights of the NAACP then and the rights of environmental groups now. The Science Committee's own authority is over federal, not state, federal scientific ``government activities.'' Same clear limits on its jurisdiction apply to subpoenas to Attorneys General and subpoenas to environmental groups. In conclusion, the Science Committee cannot and should not try to enforce subpoenas against state Attorneys General or environmental groups looking into climate risk fraud. I yield back the balance of my time, Mr. Chairman. [The prepared statement of Mr. Tiefer follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Thank you, Professor Tiefer. And Professor Foley. TESTIMONY OF MS. ELIZABETH PRICE FOLEY, PROFESSOR OF LAW, FLORIDA INTERNATIONAL UNIVERSITY COLLEGE OF LAW Ms. Foley. Mr. Chairman, Ranking Member Johnson, Members of the Committee, thanks very much for the opportunity to speak about enforcing Congressional subpoenas. I think it is a particularly important topic because I'm sure you've noticed that respect for Congress, particularly its subpoenas, is at an all-time low, and I think one of the reasons that this is the case is because Congress in the last few years has sort of increasingly ceded its power to an increasingly aggressive executive branch, and this has upset the Constitution's delicate balance of powers. Regardless of whether one likes the President, the current President or any future President, aggrandizement of executive power is just not good for our constitutional republic. My primary message for you today is that self-help should not be considered a last resort for Congress in any matter including the enforcement of its subpoenas. This is because Congress is a coequal branch to the executive and the judiciary, and so self-help should arguably be its first resort whenever it's possible. Congress shouldn't be dependent upon the other branches to enforce its subpoenas. If it is, it suggests that this dependency means that Congress is not a coequal branch, it also suggests that it is a weak branch and it insults the dignity of the institution. My written testimony details the three different ways that Congress can enforce its subpoena. There's an inherent contempt authority, there's the possibility of criminal contempt proceedings, and there's the possibility also of civil proceedings, and of these three possibilities, I believe that Congress should focus on reinvigorating its inherent contempt authority. While Congress has not relied on this inherent authority since 1934, it has strong and unquestioned constitutional validity. The other two methods of enforcing Congressional subpoenas, the criminal process and the civil process, have one common deficiency: they both require Congress to rely on a prior blessing from one of the other two branches. So for example, civil contempt proceedings require pre-enforcement scrutiny by the judicial branch and ultimately that branch's blessing. It takes many years of litigation, especially if appeals are involved, and many taxpayer dollars will be spent. The criminal contempt proceedings likewise are bad because they require not only the blessing of the judicial branch but also the executive branch. First you have to have the U.S. attorney agree to initiate a grand jury proceeding. If that happens, then you also have to go to the judicial branch, and in this context, the judicial branch is required to very closely scrutinize Congress's subpoena power because there's a panoply of specific rights that attach in criminal proceedings. This criminal contempt process costs even more taxpayer dollars and takes even longer than the civil enforcement process. It's only Congress's inherent contempt power that allows Congress to go it alone, to enforce its subpoenas without the blessing of the other branches of government. Inherent contempt is faster, it's more efficient, it's less costly, and it's perfectly constitutional. It also allows Congress to reassert itself in a way that I think is very badly needed today. I should also note that as I've detailed in my written statement, there's a potential hybrid method of enforcing Congressional subpoenas that honestly has never been tried before but may be worth considering. The Supreme Court's precedent in a case called Nagel versus Cunningham said that Congress can use the resources of the executive branch in helping the other branches of government--the judiciary and, here, Congress--in carrying out its constitutional authority. In particular, what Congress could do is invoke its inherent contempt authority and then use the Nagel precedent to require the President, the executive branch, to use the resources of the U.S. Marshal, which was what was involved in Nagel, to arrest and detain the contemnor pending the proceeding of a House proceeding at the bar. In this particular way, if we use Nagel, we might be able to invoke inherent contempt power and use the aid of the executive branch, but it wouldn't require the approval of the executive branch the way it does with criminal contempt. Anyway, that's food for thought. Let me spend the rest of my limited time on the federalism objections that have been voiced to this Committee's subpoenas. The Supreme Court's decision in Garcia made it clear that the Tenth Amendment has no judicially enforceable content, and what this means is that states' rights are considered by the Court to be adequately protected by the very structure of the federal government. Think about how Congress is structured: two Senators from both--from each state and then apportionment in the House based on state population. Now, post-Garcia, what the Supreme Court has done is develop two specific federalism doctrines that try to refine its federalism analysis. The first one is called the anti-coercion doctrine. I won't waste time on it here because it hasn't been invoked by the state AGs. But what they have invoked is what's called the anti-commandeering doctrine, and this is evinced in cases like New York versus United States and Prince versus United States. What this doctrine holds is that Congress cannot commandeer state executive or legislative branches and force those branches to carry out a federal regulatory program. If Congress wants to carry out a federal regulatory program, it has to do so by itself. It has to preempt state law and then it has to use its own resources and its own employees to carry out that federal program. What Congress cannot do under the anti-commandeering doctrine is conscript state employees to do the federal government's work. That is the anti-commandeering doctrine, and it presents absolutely zero impediment to a legitimate Congressional subpoena. If a Congressional subpoena is in fact valid, meaning that it seeks information that is relevant to a legislative inquiry, there simply is no federalism objection that can stop that Congressional subpoena. I see I'm out of time almost, and I'd like to talk to you a little bit about the First Amendment objections that have been raised, but I'll do so in the context of the questions. [The prepared statement of Ms. Foley follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Thank you, Professor Foley. Professor Turley, let me address my first question to you and say I know it wasn't easy to be here but I appreciate the integrity it took to appear. Let me quote a sentence from your testimony that particularly was impressive to me. You said this Committee clearly has the authority under Article I of the Constitution to demand compliance with its subpoenas. You said what you did about favoring what the Administration wants to do in regard to climate change but said that that was your personal opinion, you're here to talk about the Constitution. So I appreciate your supporting what the Committee is trying to do, but my question is this: When we have parties, the AGs or others, who refuse to comply with our subpoenas, what recourse do we have? What remedies do we have? Professor Foley mentioned several. I was going to get your take on that same subject. Mr. Turley. Thank you, sir. I actually testified not long ago in the Judiciary Committee about the same issue that Elizabeth talked about, which is the erosion of Congressional authority, which I consider quite alarming within our system. It didn't just start with the Obama Administration. It's a long erosion of Congress and its ability to force agencies and others to comply with subpoenas. Part of that is due, in my view, to the Justice Department failing to enforce contempt powers, and I said this for over a decade: I do not know why Congress has allowed the Justice Department to be so obstructionist in the enforcement of contempt of Congress, and that is not unique to this Administration. I made this same objection during the Bush Administration. The most obvious response of the Committee if groups are refusing to comply with subpoenas would be statutory contempt. There is of course inherent contempt, which has never been rejected by the Supreme Court, but the important thing is that Congress needs to respond. Otherwise they're playing with their own obsolescence. You are becoming increasingly a decorative element in this system of government when you have agencies and others saying we're just not going to comply. These groups may have legitimate objections to make on the scope of your subpoenas but they have to comply with them and raise those objections and try to reach a compromise, and that's how it's been done in the past. Chairman Smith. And you would stick with contempt as a recommendation then, as a---- Mr. Turley. That's the most obvious response of a committee when someone refuses to comply. Chairman Smith. Thank you, Professor Turley, and Professor Rotunda, in a recent opinion piece for justia.com, you assert that the actions of the Attorneys General investigations is an attempt to chill scientific inquiry regarding climate change. Could you explain why you reached that conclusion? Mr. Rotunda. Well, one of the examples is Professor Jerry Mitrovica at Harvard. He's been studying--he said he prefers studying the Pliocene Age 3 million years ago because he said that seems to be politically safe, and he's gotten concerned about political repercussions and prosecutions when some of what happened 3 million years ago is relevant today. For example, he tells us that in the last 2,000 years, there's been virtually no change in the sea level on the Italian coast, and he has an explanation of how he discovered this. During that period, we had a medieval warm period and a mini ice age, a little ice age, and yet we're--it doesn't go up and down. It's been about the same for at least 2,000 years. He'd like to know what's going to happen in the future, and he says that we are concerned, he says, that this will raise political controversy. He's shown by his mathematical models that if Greenland's ice sheet melted entirely, sea level would fall 20 to 50 meters off the adjacent coast of Greenland with sea levels dropping as far as 2,000 kilometers away. This would help Holland and the Netherlands rather than hurt it. But he says he's concerned that there would be political repercussions. So we've gotten into a world in which scientists say you know, I better either come up with the right answer or go to a different answer because I'm going to be subject to a lot of subpoenas. There's the threat of criminal investigation and indictments, and that means we're not getting the science for the money. You give out these grants and you're not getting objective science. Chairman Smith. That is exactly what we're concerned about. Professor Foley, I appreciate your testimony. Let me get your opinion on something. Why do you think the Attorney General refusing to comply with our subpoenas, do you think that their objection is grounded in law or do you think it's more political? Ms. Foley. Well, I don't actually see a valid legal objection to the subpoena itself. As Professor Turley suggested, if they have privileges that they want to assert, which is common in the Congressional subpoena context, those are generally resolved by negotiation by the committee. The Committee, for example, does not have to honor, if it doesn't want to, any state law-based privilege including the attorney- client privilege and the work product privilege, which are the two that are being raised by the state Attorneys General here, and the only one that Congress does have to honor are constitutional-based privileges such as the Fifth Amendment privilege against self-incrimination. So considering the fact that there has not yet been that negotiation regarding those privileges and that there is no valid federalism objection here, it seems to me that the only explanation reasonably is politics. Chairman Smith. Okay. Thank you, Professor Foley. That concludes my questions, and the gentlewoman from Texas, Ms. Johnson, is recognized for hers. Ms. Johnson. Thank you very much, Mr. Chairman. Let me start with Professor Tiefer. I've been serving on this Committee over 23 years. It'll be 24 at the end of this term. In that time, I've seen a lot of Congressional investigations come and go but I've never seen a committee attempt to subpoena a state attorney general. You mention in your testimony just how unprecedented the Chairman's actions are in this regard. Could you please comment on just how unusual this is and also what that implies about the validity of the Chair's subpoenas? Mr. Tiefer. Thank you, Ms. Johnson. I do not--there hasn't been a subpoena enforcement against a state attorney general in 200 years, and I may note because you might think well, new things happen, this is--there was-- you go back to the beginning of Congress, there were Congressional investigating committees and there were state Attorneys General and they were very often, very often of opposite political parties so if the Congressional committees thought that they could subpoena Attorneys General, then during those 200 years they would have. They're not doing it, and there's an excellent reason. State Attorneys General have their own state sovereign authority. They are frequently elected. They have their own base, their own electoral base, their own mission, and their mission is to pursue things that Congress can't. So in a word, it's unprecedented to enforce against state AGs. Ms. Johnson. Thank you. I have also never seen a committee attack with compulsory processes a group of non-governmental organizations the way this Committee has attacked the nine environmental NGOs the Chairman has subpoenaed. In my own mind, I have to go back to the Red Scares of the fifties to recall a similar effort. Could you comment on how unusual it is for us to subpoena these type of NGOs for no other apparent reason than they disagree with the Chair's position on climate change? Mr. Tiefer. As House Counsel investigating committees would come to us and talk with us about what they should do, and if they ever had said we want to do broad subpoenas against such groups, I would have pointed out that the Supreme Court precedent, Florida versus--excuse me--Gibson versus Florida Legislative Investigating Committee, made quite clear that you'd be violating these groups' freedom of association by trying to subpoena like that. That's what I would have told them. Ms. Johnson. Thank you. Now, let me ask you, in Professor Foley's testimony, she writes that the Science Committee may issue subpoenas, and I quote, ``when authorized by the majority vote of the Committee or Subcommittee as this case may be, a majority of the Committee or Subcommittee being present.'' As I believe you know, that has not been true for some time on this Committee. The Chairman of the Science Committee was granted unilateral subpoena power this Congress. We have not had a vote or a meeting of any more than--for any of the 20 or more subpoenas that the Chairman has issued. Now, you spent 11 years working in the House Counsel's Office and three years in the Senate Counsel's Office. You dealt with reviewing subpoenas often. Based on your experience, do you think that the unilateral subpoena power the Science Committee currently has is a positive thing for Congressional oversight authority? Mr. Tiefer. Absolutely not. It's one thing to issue a friendly subpoena to a group that just says please, we need a piece of paper, but--and have a chairman alone do that, but when you're going to issue controversial subpoenas like these, very controversial, and start talking about contempt, we would all--we always said get a vote of the full committee before you try to do something controversial like that. Ms. Johnson. Thank you very much. Thank you, Mr. Chairman. Chairman Smith. Thank you, Ms. Johnson. The gentleman from Oklahoma, Mr. Lucas, is recognized. Mr. Lucas. Thank you, Mr. Chairman. I would ask unanimous consent to enter into the record an article by Charles Grodin Gray for the Investors Daily or Business Daily supporting the Committee's investigation into the actions of the Attorneys General and the environment groups and solidifying that Attorneys General, environmental groups should comply with the Committee's subpoenas. Chairman Smith. Without objection, we'll put that in the record. [The information appears in Appendix II] Mr. Lucas. Thank you, Mr. Chairman, and Mr. Chairman, I take very seriously my role as your Vice Chairman on this Committee, and before I had the responsibilities and the honor of being Vice Chairman of the Science Committee, I chaired another committee in this House body, and on one occasion we were compelled to use the subpoena process to bring a very unhappy witness to testify before us. We had to send the federal marshals physically out to find him and his attorneys and to present the paperwork. Now, that said, based on my experiences that sometimes these things are important, first I would ask Mr. Turley, my understanding is various committees routinely subpoena state officials. Does the title of the state official make any difference? Is a state official a state official? Mr. Turley. I don't think so, and I disagree with my friend Professor Tiefer. I've never received as a counsel or heard of a friendly subpoena. All subpoenas tend to be rather unfriendly because you could just give information to committees. You don't have to be subpoenaed but sometimes subpoenas might be wanted. But it doesn't mean that they're different in kind. The question is, what is this Committee's authority to issue subpoenas, and is there a threshold problem, and in my testimony I say, you can look at the first question, is there a problem with subpoenaing state agency. The answer to that is clearly no, and you wouldn't want that because state agencies can deny federal programs, deny federal rights. They did so for long periods of time. The last thing this Committee wants to do is acknowledge that type of threshold doesn't exist. So the next question is, is there something about this state agency being states' Attorneys General. The answer is no, not in terms of any threshold, absolute privilege. Now, they may have arguments to make to the Committee as to the scope but that's the difference, and what I hear from my friend Charles object to is really what should, not what is. Something that may be unprecedented doesn't mean it's unconstitutional, and I think we have to separate the wheat from the chaff in that sense and say look, this Committee clearly can subpoena state agencies, and there's no magic aspect of this particular state agency that would stop the Committee from issuing a subpoena, and you wouldn't want to. You could have state Attorneys General who are eradicating the rights of abortion clinics or environmental protection or voting rights. Would you want to say that you can't subpoena those state agencies when they're interfering with federal rights? I doubt that. Mr. Lucas. Setting the political discussion aside, which you handed that, and focusing strictly on the legal perspective that you have, and I am not an attorney, so let's talk for a minute. Could you expand on that Supreme Court case, Wilkinson, that dealt with the three-prong test of what's legit? Could you further discuss that? Mr. Turley. Yes. I mean, Wilkinson, first of all, you should know---- Mr. Lucas. And how long ago was the case decided? Mr. Turley. Wilkinson was 1961, I believe, but in Wilkinson, the court specifically identified three areas that had to be satisfied, but I want to note that Wilkinson also rejected this idea that the court would delve into motivations. Now, anyone can certainly challenge the purpose or the motivation of a committee going for a particular target but the court said it's not going to get into that. It said, ``Such is not our function.'' Their motives alone would not viciate an investigation that's been instituted by the House if that assembly's legislative purpose is served. And so what the court looks at is the broad authorization of a committee, whether this is pertinent to that scope of authority, and issues of that kind, and then where it has problems is when a committee goes outside of its scope and starts asking witnesses questions that are not germane or pertinent. There have been a few cases like that. But the vast majority of cases by the Supreme Court give overwhelming support for the necessity, not just the ability, the necessity of committees to have great leeway in the enforcement of subpoenas. Mr. Lucas. Thank you, Professor. In the last few moments left, Professor Foley, expand a little more on the federalism principle issues in what time I have left if you would, please. Ms. Foley. Yeah, absolutely. I mean, you know, when I teach constitutional law, the first thing I tell my students is, read the text of the Tenth Amendment. The Tenth Amendment says that the powers not delegated by this Constitution to the United States belong to the states respectively or to the people. So that text says that if we haven't given the power to the federal government, it belongs to the states respectively or to the people. So the $6 million question is, have we given the power to the federal government? And that's basically what the Supreme Court said in Garcia. It said the only legal question in states' rights, which is actually a misnomer because it's about individual liberty, not really states, but the only real question in states' rights is have we given the power to the federal government. If we have, the federal government can exercise that power. It has a preemptive scope under the supremacy clause. It's game over except for two federalism doctrines that the Supreme Court has carved out post Garcia, and those two doctrines are only the anti-coercion doctrine, which deals with spending power, which is not at issue here, that was part of the Affordable Care Act case, NIFB versus Sebelius, and then this anti-commandeering doctrine, which is the doctrine that's being invoked. Mr. Lucas. Thank you, Professor. Thank you, Chairman. Chairman Smith. Thank you, Mr. Lucas. I also want to point out just in this Congress, there are three committees who have directed subpoenas to state officials. It's not unusual. The gentlewoman from California, Ms. Lofgren, is recognized. Ms. Lofgren. Thank you, Mr. Chairman. This has been an interesting exercise here to look at these things, and Professor Tiefer, I especially appreciate the experience that you had. A lot of people in the country don't even know there is a General Counsel's Office in the House of Representatives and that they are appointed and serve on a nonpartisan basis and provide legal advice to the House that is completely like the parliamentarians. I mean, they're just aside from the whoever's in the majority. And I have had occasion to rely on the General Counsel's advice many times in my years here in the Congress. One of the things--we're talking about the validity, really, of these subpoenas, but one of the things that I thought was really odd, honestly, is that the Science Committee would be issuing these subpoenas. It seems to me that the--you know, there are committees that investigate various things. I serve along with the Chairman on the Judiciary Committee. But in your experience, how would you find jurisdiction here in the Science Committee? Mr. Tiefer. I thank you for your kind words about the House Counsel's Office, Congresswoman. There's several reasons that I would not find jurisdiction here. Number one, the Committee has jurisdiction over federal-- oversight jurisdiction over federal bodies like NASA and the National Science Foundation, and the fact these are spelled out in the rules negates by implication that it can reach to everybody anywhere about anything in the United States. And secondly, yes, you're on the Judiciary Committee. You look into infringements in constitutional rights. The Science Committee doesn't have that. Ms. Lofgren. I want to talk also about really the fundamental issue, which is that the U.S. Congress has never done something like this in over 200 years of history, and I think when you do something that is completely unprecedented, I think that it bears examination. One of the things that I was struck with is that the AGs are investigating potentially criminal conduct, and that a committee that probably lacks jurisdiction could attempt to interfere with that criminal prosecution, to me seems, you know, extraordinary. Is that the basis for, you know, the Congress not intervening? Do we--I guess we can't know for sure why every other Congress in the history of the United States never did something like this, but it seems to me an extraordinary misuse of authority to try and intervene in a criminal prosecution. I was interested in Professor Foley's discussion about inherent contempt because we had some discussion of this in the Judiciary Committee when the President's Counsel refused to respond to subpoenas relative to dismissal of U.S. Attorneys, and it turns out there used to be an actual jail in the basement of the Capitol. But as we got into discussion how does the Congress enforce its subpoenas, we envisioned this thing where, you know, the sergeant at arms would go and face off with the Secret Service. You know, in this case, our Attorney General in California has initiated investigation. You know, would we send the sergeant at arms to face off at the California Highway Patrol? Would there be an armed conflict? I think that's the reason why we have not used that basis. Our system of government, the three branches, just like we all learned in school, is meant to work in a peaceful way to resolve disputes, and that's why we go to the judiciary to pursue enforcement. Is that your take on this, Professor? Mr. Tiefer. I have to say, Congresswoman, that what used to be the Capitol jail was the cafeteria now in the basement. Ms. Lofgren. Well, it's no longer available. We know that. Mr. Tiefer. Some say the kitchen stayed the same. Yeah, there was a time that the Congress used to lock up people but that's from a bygone era. We would have to turn ourselves into a courtroom here, which could never be done. You really would end up having the U.S. attorney criminally prosecute and try to put in jail the states Attorneys General? It boggles the mind to think that we could enforce a subpoena. Ms. Lofgren. Well, I just think these subpoenas are a huge mistake. They're not based in precedent or law. They will intimidate scientists, and they are a departure from our structure of government, a huge mistake, and I thank the Chairman for allowing me to have---- Chairman Smith. Thank you, Ms. Lofgren. And the gentleman from Texas, Mr. Neugebauer, is recognized for his questions. Mr. Neugebauer. Thank you, Mr. Chairman. Mr. Chairman, I'd like to enter for the record two recent media reports related to New York Attorney General Eric Schneiderman. The first from the New York Post reports on an attempt by the Attorney General to reach out to hedge fund mogul and environmental activist Tom Stiler seeking support for his run for governor in 2018. And the second report highlights a large number of campaign contributions the Attorney General has received from wealthy liberals like George Soros and environmental activists and philanthropists like the Rockefeller family and lawyers who stand to profit from the legal judgment against that, so---- Chairman Smith. Without objection. Thank you. [The information appears in Appendix II] Mr. Neugebauer. Professor Foley, you were starting to talk a little bit about the First Amendment protections that have been raised. Would you like to finish your thoughts on that? Ms. Foley. Yes. Thank you for that opportunity. I really want to emphasize a couple of things. First of all, all the cases that are being relied upon by the state AGs and these private organizations involve the use of a subpoena to obtain membership lists or name of members of organizations. That was the case in the Wilkinson case, the Baron Black case, numerous other Supreme Court cases involving the House Un-American Activities Committee. It also was the case in NAACP versus Alabama. It was the case in the Gibson versus Florida Investigative Legislative Committee, which was cited. And that's a fundamentally different question because what the court says in the membership list cases is that when you turn over a list of the names of people who belong to certain organizations, that clearly implicates First Amendment associational rights because it can chill those associations. It should be noted for the record that this Committee's subpoenas are not seeking membership lists. It is seeking ordinary documents and communications shared amongst these groups and with the Attorneys General. That kind of information is routinely turned over in civil litigation. There's a Federal Rule of Civil Procedure 34, request for production of documents, that makes these kinds of documents routinely available. When it's issued against non-parties, Federal Rule 45 allows a subpoena duces tecum to obtain these kinds of documents and communications, and they have never been thought to implicate any First Amendment rights. If it did, if turning over simple communications amongst parties implicated First Amendment rights, Federal Rule 34 and 45 would be unconstitutional, and that's simply not the case. Also, let me just point out in those membership list cases, those only succeed when the organization whose membership is sought to be turned over can make a prima facie evidentiary showing that turning over the names of the members will result in intimidation or harassment of the members. That certainly is not in play here, and even when it is potentially, the courts don't buy those arguments. Just in 2015, the most liberal federal Court of Appeals, the U.S. Court of Appeals for the Ninth Circuit, held in a case involving the Center for Competitive Politics that that organization had to turn over its membership lists despite its First Amendment objections. Mr. Neugebauer. Amplifying on that, in your view, does Backpage court differentiate between the First Amendment protections in the realm of Congressional investigation when such investigation may implicate a criminal activity as opposed to an investigation where the subject matter is decidedly not criminal in nature? Ms. Foley. Is that directed to me, sir? Mr. Neugebauer. Uh-huh. Ms. Foley. Yes. That's a good point. In fact, I really want to emphasize the cases that have involved First Amendment objections have all been in the context of criminal proceedings. It hasn't arisen in the civil proceedings. In those limited proceedings the only objection has been executive privilege. And it's never--the First Amendment has never come into play in any of the inherent contempt authority cases of the Supreme Court. When it is a criminal case, it is a different show, right, because there are heightened considerations about special constitutional rights that attach to a criminal defendant, so courts are particularly sensitive in criminal cases in a way that they're not in the civil or the inherent authority context. Mr. Neugebauer. Professor Rotunda, in your opinion, what is the best method for carrying out scientific inquiry on an important question such as climate change? Mr. Rotunda. Doing it without fear of prosecution, without fear of threats of prosecution, without having to turn over tons of documents going back many, many years because that takes a lot of effort to do. You would just like to be able to go in your lab, do experiments, publish the results, and then people can decide whether you're right or you're wrong based on whether they can replicate your experiments or they think your math is wrong or something like that. You know, years ago, Father Lemaitre, a Belgian priest, a Belgian priest who was teaching at the Catholic University of Leuven, where I used to teach briefly, he presented his argument why the universe had a beginning. This was the beginning of the 20th century, and Einstein wrote him--they were friends--he said your math is correct but your physics is atrocious. And the reason you can attack Father Lemaitre by looking at what his math is like, trying to replicate his experiments. Nowadays I guess, you know, we're the more intolerant 21st century, we'd prosecute him. You took money from the Vatican? Who paid for your education? You teach at a Catholic university? Eventually Einstein said that Lemaitre was right and Einstein was wrong, and at the time, by the way, Lemaitre said that, every scientist or purported scientist going back to Aristotle thought the universe was always here. Now we know it has a beginning. And what we'd like to do is have these scientists argue freely about whether or not the globe is warming, why the climate change models are off, and it's never as bad as they think it's going to be. That's what we should do. Chairman Smith. The gentleman's time is expired. Thank you, Mr. Neugebauer. The gentlewoman from Oregon, Ms. Bonamici, is recognized. Ms. Bonamici. Thank you, Mr. Chairman. Last month I was home in Oregon and I did a series of town hall meetings around northwest Oregon, and my constituents, both Democrats and Republicans, care a lot about climate change. They know I'm on the Science Committee and they always want to know what we are doing. I assure you this is--what we're doing today is not what they expect and certainly not what they deserve. So my constituents of course are justifiably concerned about the subpoenas that certain members of this Committee have sent to the Attorneys General of New York and Massachusetts, to the Union of Concerned Scientists, to the Rockefeller Foundation. I'm having trouble with the valid basis for the Committee to send those subpoenas, and I understand we have a scholarly disagreement here. But what's even more baffling is why is the Committee making this a priority when there's so many issues that deserve our attention and our action like ocean acidification, melting glaciers, ways to find and curb greenhouse gas emissions, and in this Committee we should be learning facts that may be helpful in creating positive legislation. And so I know the Majority is claiming that the Attorneys General and the subpoenaed groups are allegedly involved in some kind of attempt to infringe the free speech rights of ExxonMobil but in fact the Attorneys General are doing their jobs by investigating whether ExxonMobil withheld important information from its shareholders about the connection between fossil fuels and climate change, and that is certainly within the appropriate scope of responsibility of Attorneys General. If ExxonMobil has a problem with the AGs' subpoenas, the company can certainly challenge them in the court of jurisdiction, which I understand they have done. But that challenge would be in the judicial branch. This is the U.S. House Committee on Science, Space and Technology. We're not prosecutors. We're not here to adjudicate whether a petroleum company's free speech rights are being violated, although I will add, and it's been mentioned already, that it's pretty clear that there's no free speech right to commit fraud. In fact, I'm more concerned about the chilling effect that the Committee subpoenas might have on the free speech rights of those, not only the subpoena recipients but on other organizations that are doing that important work of researching and addressing the threat of climate change. So Professor Tiefer, where's the most serious First Amendment threat here? Is it the issuing of subpoenas by the Science Committee or the investigation by the Attorneys General, and why? Mr. Tiefer. Congresswoman, ExxonMobil can take care of itself. I would like to be their lawyers. I would like to get what they can pay their lawyers instead of--I mean, it's not being bad being a professor. I'm not complaining. Anyway, the First Amendment rights of organizations are very important. The ones historically were both left-leaning. They were gone after in the red-baiting period, and the Supreme Court recognized the First Amendment rights of--and civil rights organizations that got legislative subpoenas in our era. The freedoms involved are not merely membership lists, although those are the most prominent example, but all parts of the freedom of association belong to these groups. Ms. Bonamici. Thank you. And we know here what the state Attorneys General are asserting, that--and they have supporting evidence. We're not here to adjudicate that but they're asserting that ExxonMobil has known for years that climate change is real, that burning fossil fuels contributes to climate change, and scientists as far back as the Carter Administration spoke with trade associations about how climate change is anthropogenic, and they're also asserting that despite this internal knowledge, Exxon until recently publicly stated the opposite working to challenge the emerging scientific consensus on climate change, assuring investors that climate change would not affect their bottom line, and not publicly disclosing its internal stockpile of evidence to the contrary. So given all those assertions, and again we're not here to adjudicate that. That's up to the court. But given those assertions and given that the New York Attorney general has fairly broad investigative powers and the Financial Crimes Bureau to prosecute securities and investigation fraud, if Exxon scientists are saying one thing behind closed doors and the company is telling its shareholders something else, is it not appropriate for the Attorney General to investigate that? Mr. Tiefer. Absolutely. I see what's going on here. It's very similar to what happened in tobacco industry investigations where the tobacco industry had files and records that nicotine was addictive but was making public statements including statements to its stockholders but also potential lung cancer victims. So--and the state Attorneys General went after that. That was the only level, the only place that you had a willingness to investigate that. So once again, we need to get out what's in those files and the state AGs are the ones who are going to do it. Ms. Bonamici. Thank you very much. I see my time has expired. I yield back. Thank you, Mr. Chairman. Chairman Smith. Thank you, Ms. Bonamici. And the gentleman from Alabama, Mr. Brooks, is recognized. Mr. Brooks. Thank you, Mr. Chairman. I ask unanimous consent to enter into the record an article written by witness Ronald Rotunda for Justia.com regarding the motives of the Attorneys General and environmental groups to chill scientific inquiry into climate research. Chairman Smith. Without objection, in the record. Thank you. [The information appears in Appendix II] Mr. Brooks. Thank you, Mr. Chairman. Before I get to my questions, let me emphasize something about this, "climate change phrase". I know of no person on Earth who denies that climate change occurs. Anyone who knows anything about Earth's history knows the Earth's climate has always changed to hotter, to colder, to wetter, to dryer, and the like. And the Earth's climate always will change. Rather, the so-called climate change debate is about the role humanity has played, if any, in today's version of climate change to the cost to humanity in terms of depressed economies and lost lives of implementing so-called climate change cures, whether that cost to humanity of so-called climate change cures does more damage than good, i.e., whether the purported cure is worse than the alleged disease, whether so-called cure is a cure at all, and the like. That having been said, this seems to be a hearing more on legal issues as opposed to those types of issues related to climate research, and with that as a backdrop, I'm going to focus on the Wilkinson versus United States case, and I'm going to ask each of you to share your views. In order to determine if the Committee's investigation is legally sufficient, the Supreme Court in Wilkinson versus United States established a three-prong test. The court must determine, one, the committee's investigation of broad subject matter must be authorized by Congress; two, the committee must have a valid legislative purpose; three, the demand in this case, the subpoena, must be pertinent to the subject matter authorized by Congress. With respect to the second one, valid legislative purpose, I just note some quotes by Professor Turley in his written testimony: ``As an academic, I find the demands of these state investigations to be chilling in their implications for experts and academics alike.'' ``As an academic, I view the effort of the state Attorneys General to be highly intrusive into academic freedom and free speech.'' I hope that we all can agree here that freedom of speech, freedom of researchers to do valid scientific research is a right that is protected in the United States Constitution is certainly something that this Committee has the right to make inquiry concerning. That having been said, my question is this: In your opinion, does the Committee's investigation of the Attorneys General and environmental groups satisfy the three-prong test of the Wilkinson case? Professor Turley, as I understand it, your testimony is yes. Is that correct? Mr. Turley. Yes, and I would add that I disagree with Professor Tiefer in that when I look at Rule 10, I don't see how you could possibly argue that this falls outside the scope of Rule 10. Rule 10 talks about--it's certainly about federal concerns but no committee is limited to the narrow definition that he's presenting, in my view, about federal research or federal issues of that kind. This Committee is allowed to investigate things that impact upon those areas that it is given, and second, all committees deal routinely with free speech issues, with potentially criminal issues. If that wasn't the case, we would just have a huge Judiciary Committee and dozens of subcommittees because this is a routine type of conflict that comes up. Mr. Brooks. Professor Rotunda? Mr. Rotunda. Oh, I agree with everything he said. I think the--the purpose of this Committee and the purpose of the Committee's subpoenas is not to stop the Attorneys General of the states from subpoenaing. They want to investigate fraud. We want to know whether there was a corrupt agreement. Well, there is a corrupt agreement between the state Attorneys General, some environmental groups, and George Soros, and you have to know that to decide if you're going to propose legislation to take that into account. There may be more money because it's taken into account that people are chilled when leaving the subject. Maybe you want to fund advocacy research. The government for decades studied advocacy research on why marijuana is bad when other people said it wasn't bad. Maybe they were high when they said that. But the fact is that the--I was on the Senate Watergate Committee. We came up with legislation at the end. We didn't know at the beginning what it would like because we didn't know the depth of the problem, and I think you ought to find out what is the depth of the problem here. Is it really true that the Attorneys General are part of a corrupt agreement, or is that all made up, in which case you might decide to propose nothing, but you cannot make that step unless you first investigate. Mr. Brooks. Mr. Chairman, I see my time has expired. If you wish for Professor Foley and Professor Tiefer to respond, of course, that's at your discretion, but if not, I understand. Chairman Smith. Okay. I'm afraid the gentleman's time is expired but the gentleman is welcome to put questions in the record and direct those to the witnesses as well. The gentleman from Virginia, Mr. Beyer, is recognized for questions. Mr. Beyer. Thank you, Mr. Chairman. Before I begin, I'd like to enter into the record an editorial board piece from the Washington Post which calls the Science Committee's subpoena of NOAA ``a fishing expedition.'' I'd also like to submit a letter that Congresswoman Edwards and other members of the Virginia, Maryland and Washington, D.C., delegations and I sent to Chairman Smith back in June in response to his request for documents from the state Attorneys General, and lastly, a letter from three constitutional scholars at Duke, Chapel Hill and the University of Virginia, especially Brandon Garrett, questioning the--denying the Committee's authority to issue subpoenas to state---- Chairman Smith. Without objection, they'll be put in the record. [The information appears in Appendix II] Mr. Beyer. Thank you, Mr. Chairman. Professor Tiefer, you were Acting General Counsel for the House of Representatives for 11 years so you have extensive knowledge of the oversight authority of the House and even specific committees of the House. In terms of investigative authority, how would you would describe the oversight authority of the Committee on Oversight and Government Reform compared to this Committee, the Science Committee? And please be brief because---- Mr. Tiefer. Much worse, much broader. They have total oversight where this just has a slice of it. Mr. Beyer. So in your understanding, OGR has a greater scope of investigative jurisdiction? Mr. Tiefer. Definitely. Mr. Beyer. That is interesting because Congressman Jason Chaffetz, who chairs the OGR, told Wolf Blitzer on CNN last week that he didn't believe this Committee had the authority to investigate Florida Attorney General Pam Biondi in accusations of pay-to-play. If I could ask for a quick few seconds of this, please? [Playback of video] Mr. Beyer. Professor Tiefer, how do you square Representative Chaffetz' understanding of OGR Committee's investigative jurisdiction with the Science Committee Majority's understanding of its investigative jurisdiction? Mr. Tiefer. They don't have it; you don't have it. Mr. Beyer. All right. Professor Turley, you said clearly that Article I gives this Committee the power to issue subpoenas. Professor Tiefer's response was that fraud investigation is a legitimate bread-and-butter state AG investigations, and the Supreme Court holds that the First Amendment does not protect such fraud. How do you reconcile his interpretation that it doesn't protect the fraud investigation? And let me give you one--because you used the word ``chilling'' a bunch of times. How does it chill scientific research when the attorney general's fraud investigation is taken existing scientific research from ExxonMobil, a public record that says it was real, with their statements, some would say lies, to their investors about what the research shows? Is that chilling scientific research or is that simply saying you can't do one thing and say something different to your investors? Mr. Turley. I think it is chilling scientific research beyond this even though I happen to agree with the other side in this, with the Obama Administration, with the people who are supporting these state investigations. I think this is a step too far. I think that this was a uniquely bad idea. I think it's delving into areas of a difference of opinion. I happen to think the record's clear but there are very good people who disagree with me, and as academics, were used to having peer review, not a jury of our peers, decide those questions. Now, in terms of the fraud issue, I'm afraid I have to disagree with Professor Tiefer. It's easy to call anything fraud. During the Red Scare, they called communists inherent subversives. You can--anyone can say that your views amount to fraud. I find it very difficult to accept the premise of these state investigations on an issue of scientific disagreement as an academic but simply saying that this might be fraud or it might be a problem under shareholder laws, it maybe doesn't change the dynamic here. From the perspective of the other side of this, they believe that what's happening here is that it is analogous to the Red Scare, that climate change, you know, skeptics are being treated like the new communists. Now, on your side, you believe that that's a closer analogy to the environmental groups. You know, frankly, I'm not interested in the school yard fight issue of who started this, but I do think that the arguments you're making today would seriously undermine the arguments made in these states as well. I think both actually have authority to do what they're doing, and it would be better for them to reach a compromise on scope and stop fighting on threshold questions. Mr. Beyer. Mr. Chair, I yield back. Chairman Smith. Thank you, Mr. Beyer. I trust you're persuaded by Professor Turley's last remarks. The gentleman from Ohio, Mr. Davidson, is recognized for his questions. Mr. Davidson. Thank you, Mr. Chairman. Thank you all for being here today. And without objection, I'd like to enter into the record a statement from the Washington Post, Dennis Vacco. Mr. Chairman, the article from Mr. Vacco says his concern was that he served as Attorney General for the State of New York from 1995 to 1999, and during that time he investigated and sued the tobacco companies for fraud. Mr. Vacco differentiates the tobacco cases from the Exxon investigation and suggests that the Attorneys General investigations into science, climate science, is for political purposes. It's a very clear distinction from the references to the tobacco settlement. Chairman Smith. Okay. Without objection, that'll be made a part of the record. [The information appears in Appendix II] Mr. Davidson. And just to clarify, you know, the concern here is that this is really not just a chilling effect but perhaps even a chance to criminalize scientific inquiry, to basically say dissent that others might have is going to subject you to criminal inquiry. The broader concern, to address Ms. Bonamici's, you know, comments, we are focused on the actions of the Attorneys General and the effects of those actions on research and development in the United States, of which a significant portion is funded by Congress. The Attorneys General subpoenas demand documents and research of public and private scientists. We spent a lot of time talking about ExxonMobil but this is also targeted at individual scientists, groups, nonprofits and, you know, could spill over into universities as well. So this is really an effort to shape research, not just object to fraud. And so, Professor Turley, you know, could you comment on, is there an inherent conflict with the Attorney Generals' ability to respond to our subpoena and their ability to pursue a case for fraud? Mr. Turley. There isn't a conflict in that sense. You know, the New York Attorney General said that this Committee is trying to effectively do a hostile takeover of his office. That's obviously hyperbole. It's not true. The Committee has asked for information. It's not like the commandeering cases, the relatively few such cases where the court has viewed it in that way. He can proceed in the same way he's doing now. But I would also note that my understanding is that at least one group has acquired many of this--much of this information through the Vermont Public Records Law, and back in June I testified in the Judiciary Committee and noted that groups like Judicial Watch were actually acquiring evidenced through FOIA that the Committee had not been given by the Administration, and this creates an absolutely bizarre situation where committees with oversight actually have less authority, less ability to get information than citizen groups or individual citizens, and the fact that you can acquire some of this information through the Vermont Public Records Law should be very, very troubling to anyone on this Committee. What we have to look at is, is there a constitutional threshold barrier to asking the states Attorneys General information specifically geared towards this investigation in light of what this Committee views as the inherent impact upon academics. The answer is no. Does the--can the attorney general make objections that some information should not be turned over? Certainly, and most of the times I've seen this happen, committees have tried to accommodate, and I'm pretty sure this Committee would do the same. Mr. Davidson. Thank you for that. I'd like to address Professor Foley. You talked about the concerns really not just in this case but broadly, and it's been a trend of subpoenas and inaccurate statements being given to Congressional committees, so kind of the proliferation of these events. What is the net effect on the power of Congress to receive honest and accurate testimony, and receive the information rightfully requested under subpoena? We've seen numerous instances where the evidence request has been destroyed. So could you comment on that, please? Ms. Foley. Yeah. I mean, I think you see the effect almost daily, it seems, where Congressional subpoenas are being routinely ignored and disrespected. The problem is that for some reason, this branch of government, which the framers thought was going to be the most powerful, the most vigorous of the three branches, has turned out to be relatively infuscate over time, and I think that's because--I heard it a little bit earlier today from someone in this Committee who suggested they couldn't even envision really Congress using its inherent authority to go out and send the sergeant at arms to arrest someone. Well, guess what? That power was routinely exercised by early Congresses. Early Congresses were not afraid to assert their constitutional prerogatives, and I don't think you should be either. Mr. Davidson. Thank you. My time is expired. Chairman Smith. Thank you, Mr. Davidson. And the gentleman from New York, Mr. Tonko, is recognized for his questions. Mr. Tonko. Thank you, Mr. Chair. I find it extremely concerning that these subpoenas may interfere with legitimate investigations of fraud. Many of our colleagues share this concern, which is why 18 members of the New York delegation recently expressed our disappointment in the Majority's decision to issue unilateral and unprecedented subpoenas, and I have a copy of this letter, Mr. Chair, that has been forwarded to you before the hearing, I believe yesterday. And let me just state that that's not our opinion as a group; it's based on research done by CRS. I'm also concerned that these subpoenas not only set a bad precedent but also damage the credibility of both this esteemed committee and Congress as a whole. The state Attorneys General investigation of possible fraud under state laws, and let me repeat that, state laws, by ExxonMobil bear a striking resemblance to earlier state AG fraud investigations of Big Tobacco in the 1990s. Those investigations led to settlement agreements between all 50 states and the tobacco industry for hundreds of billions of dollars. The Department of Justice then sued and Big Tobacco was found liable for fraud under the federal RICO Act. This is despite the fact that Big Tobacco made similar arguments to what we are hearing from our Majority today. So perhaps it is understandable why Exxon and their Congressional allies are going to such lengths to interfere with legitimate fraud investigations. I would like to add that this is not the first time the Science Committee has abused its oversight authority to defend oil-and-gas interests, and it is not the first time those actions have been condemned. Last year, the New York Times editorial board condemned the Majority's subpoena to NOAA climate scientists, which seemed to be based on political beliefs and not substantive evidence of wrongdoing of any sort. I would like to ask for unanimous consent to enter that editorial, Mr. Chair, into the record. Chairman Smith. Without objection, it'll be in the record. [The information appears in Appendix II] Mr. Tonko. Thank you. Today, these state AGs including the Attorney General from my home State of New York are investigating potential fraud. They are not infringing on the First Amendment rights of ExxonMobil or industry scientists. As became clear in tobacco litigation, fraudulent speech is not protected by the First Amendment. Professor Tiefer, you have already addressed this tobacco litigation but can you further expand upon the similarities between those cases and the current investigations into potential fraud by Exxon? Mr. Tiefer. They're very similar. The state Attorneys General often working through the National Association of Attorneys General, NAAG, have evolved a process by which states group together, often with a leader, in this case, New York State, as you say, and to investigate fraud by companies. It's a major activity of theirs and a legitimate activity. Mr. Tonko. Well, I thank you for that, and I also have serious concerns about subpoenas, the subpoenas issued by the Majority to some nine environmental advocacy organizations, and how these groups have been treated in the process. Ken Kimmel, the President of the Union of Concerned Scientists, wrote an op-ed called ``When Subpoenas Threaten Climate Science.'' I agree with the sentiment that these types of scare tactics threaten the vital work of many organizations. I would like to ask for unanimous consent to also enter this op-ed into the record, Mr. Chair. Chairman Smith. Without objection. [The information appears in Appendix II] Mr. Tonko. And much of the legal community, the scientific community, and Congressional experts like Professional Tiefer and CRS all agree that these subpoenas are unprecedented. There is an obvious political agenda here, I believe, and I hope that we will put an end to infringing on states' rights so that our AGs can conduct their rightful enforcement of the law. I believe that's an important part of this process, and based on some of the progress that we made on behalf of consumers as it relates to tobacco industry resulted in outstanding benefits, public health benefits for this country, and I think that we should take heed of what's happened in the past year and understand that we're well served by allowing for our states via the AGs to do their work and to do it abundantly well, and with that, I yield back, Mr. Chair. Chairman Smith. Thank you, Mr. Tonko. I might encourage the gentleman to get the most recent submission by CRS. They updated their memo and made some corrections to it. The gentleman from Georgia, Mr. Loudermilk, is recognized for his questions. Mr. Loudermilk. Thank you, Mr. Chairman, and I thank the witnesses for being here. Mr. Chairman, I ask unanimous consent to enter into the record an article in the Wall Street Journal by Hallman Jenkins entitled ``How the Exxon Case Unraveled,'' which illustrates the fluidity of the argument by the New York Attorney General in his justification for this case, which continually is changing, and to me is evidence that this effort is to express--or suppress a dissenting view, which being able to challenge status quo is the history of America. If we haven't had the freedom to challenge what was generally accepted ideas and models, even scientific models, we would still believe the world was flat, which was the accepted government idea at the time. If Orville and Wilbur had not had the freedom to challenge generally accepted aerodynamic theorems that they developed new ones, we wouldn't have an Air and Space Museum today. [The information appears in Appendix II] Mr. Loudermilk. The generally accepted idea of scientists was that we could not leave the orbit of the Earth and travel to the moon or the four-minute mile could not be accomplished. I agree this is chilling, and what the chilling effect of this is, the government using the power and the strength of law to suppress a dissenting view regardless of whether you agree with it or not. Professor Foley, thank you so much for recognizing that the Tenth Amendment is a succession of powers, not rights, that individuals hold rights, not government. Government holds power. Thank you. You don't hear that very often. I'd like to ask you a couple of questions. I like what you said, and you articulating that there are three separate and coequal branches of government. However, it appears throughout history, especially in the Civil Rights movement, that the executive branch has quite often interjected itself in states' issues, for instance, when LBJ sent federal troops to protect the voting rights march in March of 1965. Is that within the constitutional realm, in your opinion, that the executive branch has instituted itself to protect rights, especially a First Amendment right? Ms. Foley. Of course. Mr. Loudermilk. Okay. It concerns me that Professor Tiefer, though, is taking the approach, if we take his approach, then with that idea the executive branch then has more power than the legislative branch. Am I correct in that? Ms. Foley. I assume that is the implication. Mr. Loudermilk. Okay. According to the Constitution, Article I, section 4, who's responsible for elections, states or the federal government? Ms. Foley. States. Mr. Loudermilk. States are given the constitutional authority for elections, correct? Ms. Foley. Correct. Mr. Loudermilk. However, federal troops were sent by the executive branch to protect the voting rights of individuals during--throughout our history, especially during the civil rights movement. Am I correct on that? Ms. Foley. And thank goodness. Mr. Loudermilk. Was that proper constitutional authority? Ms. Foley. Of course. Mr. Loudermilk. Could you opine then, how is it that we have coequal branches of government but one branch has an executive authority to intervene when rights are being violated but not the Congressional branch---- Ms. Foley. Well---- Mr. Loudermilk. --or the legislative branch? Ms. Foley. And let me just echo this by saying you may have gotten to this but section 5 of the Fourteenth Amendment, the enabling clause gives Congress the power to enforce the Bill of Rights, which have been incorporated into the states via the due process clause of the Fourteenth Amendment. So one of Congress's most important responsibilities is to protect the Bill of Rights and prevent state officials from violating those rights. Mr. Loudermilk. And I would say this for the record, that I would take the same stance if the tides were turned and it was the government trying to suppress the views that there is climate change when the government was assessing that there is not. Professor Turley, can I ask you real quick to opine on the video of Chairman Chaffetz, that it was brought up that we're taking two sides of an issue here? What is your opinion on his authority to investigate? Mr. Turley. Well, it's always fun to testify with Wolf, but I think that it's hard to compare the two investigations. I'm not particularly familiar with that one. Obviously I'm familiar with this one. I don't see how any of the arguments being made with regard to this Committee's authority, particularly with AGs, can be challenged just because it's a criminal-- potentially a criminal matter. First of all, the New York AG is doing a shareholder investigation, which by its nature is more civil than criminal, but it could involve criminal charges, but if you look at cases like Sinclair versus United States, the Supreme Court rejected these type of collateral consequences. That wasn't with an AG. But you had someone who objected to the fact there was a criminal case going on. There was a core criminal matter, and the court rejected it and said that doesn't take away the fact that the Committee has a legitimate interest in all this. Now, we can debate whether in fact the state investigations are threatening academics. I have to view it that way. As an academic, it makes me feel extremely uncomfortable to have these investigations and their impact on people with dissenting scientific views. But that's a matter of policy, that's a matter of choice. I don't see much argument about the unconstitutionality. Whether something's unprecedented doesn't move the ball in the analysis. The question is, it is unconstitutional, and I don't see that basis. Mr. Loudermilk. Okay. So in summary, you can say---- Chairman Smith. The gentleman's time---- Mr. Loudermilk. --it doesn't meet the three-prong test and Chaffetz---- Chairman Smith. The gentleman's time has expired. Mr. Loudermilk. I apologize, Mr. Chairman. Chairman Smith. Good question. We'll follow up on it. The gentlewoman from Maryland, Ms. Edwards, is recognized for her questions. Ms. Edwards. Thank you very much, Mr. Chairman, and thank you to the witnesses today. You're reminding me that I probably shouldn't have slept through that week of law school. But I wanted to focus today on, you know, a couple of things that I've heard. One, the earlier analogy, which I think is actually appropriate with respect to the lawsuits that ensued against Big Tobacco, and I would note that the chief prosecutor, the federal prosecutor's actually in the audience today from the case, Sharon Eubanks, so thanks for joining us. You know, over these last several weeks, and of course, the Maryland Attorney General was subpoenaed as well, a letter went out, and it's been widely denounced in a lot of quarters, and particularly by the Baltimore Sun, which is not a liberal bastion newspaper. In their editorial board, they noted that the Committee had previously held ``witch hunt hearings'' and they also explained a simple fact that the Majority apparently seems to have some trouble grasping and that is what Attorneys General, the Baltimore Sun editorial says, are looking into is whether energy companies like ExxonMobil have crossed the line into criminal behavior in their attempts to knowingly sabotage scientific evidence of manmade climate change. At issue, for instance, the Sun continues, is whether the companies may have deliberately deceived investors and consumers about the consequences of burning their products and thus deserve to be held accountable. And I'd like to ask that the Baltimore Sun editorial be entered into the record. It's from June 1st, Mr. Chairman. Chairman Smith. Without objection. [The information appears in Appendix II] Ms. Edwards. Thank you. I also note that Professor Tiefer, in your testimony, you note also that the subpoenas are without merit, and I really appreciate both the experience that you bring in terms of your scholarly work but also as a practitioner here in the House, and I'm concerned about the Majority's actions on the institution and what will happen with the institution. I would note, for example, that in looking at the breadth of the subpoenas, in the letter at least my Attorney General, Brian Frosh in Maryland, the request was as follows: ``Your office funded with taxpayers dollars is using legal actions and investigative tactics in close coordination with certain special interest groups and trial attorneys that may rise to the level of an abuse of prosecutorial discretion. Further, such actions call into question the integrity of your office,'' and I'm just really curious why the Congress of the United States and this Committee has any jurisdiction whatsoever over Maryland taxpayer, my taxpayer dollars being used in Maryland for the purposes of our Attorney General's investigation. It does seem to me that that is completely outside of the scope of this Committee even if you extend it in its most broad form. And I think that if the Committee continues this kind of partisan attack, that it's going to be very problematic for our institution. I would note, for example, that, you know, in our work there was no first negotiation, Professor Foley. The first negotiation that should have taken place should have taken place in this Committee with Republicans and Democrats looking at what was being requested and then even reaching out to organizations and institutions to figure out what it is that we could get, that should have been the first negotiation, and instead a letter singularly went out from the Majority to our Attorneys General and all of these organizations without any consultation with the Majority, and frankly, without a Majority, without all of the signatures of the Minority. And so clearly, there's a problem for the institution, and I'll give you, Professor Tiefer, the remaining comments because your advice to Congress in these matters also takes into account what will happen in the future in this institution. Mr. Tiefer. I thank the gentlelady, Congresswoman, and there's a very good reason that for 200 years you haven't seen these things going back and forth. What's next? I think the next thing would be for House committees to subpoena the constituent files of Senators and for Senate committees to subpoena the constituent files of the House. You might look to where there's a privilege over there. There's no privilege but the two chambers respect each other and in the same--and don't mess with each other, and in the same way, the House committees for 200 years have respected and, excuse the colloquialism, not messed with the state Attorneys General. Chairman Smith. Thank you, Ms. Edwards. And the gentleman from Texas, Mr. Babin, is recognized. Mr. Babin. Thank you, Mr. Chairman, and I want to thank you witnesses for being here today. I would like to, in light of what my distinguished colleague from the other side of the table asked, I'd like to ask you a question, Professor Turley. Under the House Rules and the Committee Rules, isn't it true that our Chairman of SST here has the authority to issue subpoenas without a vote of the full Committee? Mr. Turley. Yes, it is. Mr. Babin. Okay. Thank you. And now I'd like to enter into the record, I'm asking without objection, a Wall Street Journal op-ed that was written by Professional Foley, which says--asks us to read for how far the left will go to enforce climate change orthodoxy and that the ultimate goal would be to chill First Amendment rights for those who are dissenting from this--from their theory that human-caused climate change will be a disaster. I submit that the disaster will be coming from the chilling of our research and development---- Chairman Smith. Without objection, the op-ed will be in the record. [The information appears in Appendix II] Mr. Babin. Okay. Thank you. I submit that that will be--the biggest disaster will be the chilling of First Amendment rights for free speech and the arena of thought and ideas for our scientists. And so I would like to ask you, Professor Foley, a couple of questions. Do you agree that the Committee's legislative jurisdiction includes the authorization over the federal government scientific enterprise that we fund? Ms. Foley. House Rule X clearly says so. Mr. Babin. Absolutely. Okay. And then also, do you agree that the investigatory actions of the Attorneys General will have an impact on research and development? Ms. Foley. Oh, absolutely, not just of ExxonMobil but the scientists involved in climate change research as well as the nonprofit organizations. Mr. Babin. Okay. Thank you. And the suppression and intimidation and persecution of scientific research and development is absolutely nothing new, as we heard my colleague, Barry Loudermilk from Georgia, say. Copernicus, Galileo, perfect examples of that. So I would also ask you if you are claiming--excuse me-- that the Attorneys General are claiming that the subpoenas are unconstitutional based on federalism principles? You alluded to this, I think, earlier in the questioning, but isn't this ironic that we would see the groups that are collaborating with these Attorneys General have gone against federalism many, many times in the past and now are claiming that as a defense. Do you--is your--is it your analysis of the Committee's subpoenas to the Attorneys General of New York and Massachusetts represent a legitimate Congressional inquiry into what of these warrants--excuse me--that would warrant compliance? Ms. Foley. Yeah, absolutely. You know, this Committee under House Rule X has the authority to investigate matters relating to scientific research and development. The House as a whole and certainly this Committee with jurisdiction over scientific research and development has the responsibility, really the absolute duty, to make sure that state officers including state Attorneys General do not violate individuals' federal constitutional rights including the First Amendment, and therefore if the state AGs are taking action that would chill the First Amendment freedoms of scientists. This Committee can take cognizance of that and can issue subpoenas to get at the heart of the matter. Mr. Babin. Okay. That's all I have, Mr. Chairman. Thank you. Chairman Smith. Thank you, Mr. Babin. And the gentleman from Illinois, Mr. Foster, is recognized. Mr. Foster. Thank you, Mr. Chairman, and thank you to all the witnesses here today. You know, as the only Ph.D. scientist in the U.S. Congress, I have to say that I'm sort of disappointed with today's hearing. The job of the House Science, Space, and Technology Committee is supposed to be oversight of the federal government's research and development agenda, so I'm rather disappointed that instead of having a serious conversation about how to analyze and mitigate the effects of climate change, we are taking about subpoenas and legal arguments involving shareholder fraud investigations by states' Attorneys General. Instead of learning about the next generation of batteries or discussing how to ensure that the United States stays on the leading edge of scientific discovery and innovation, we're here arguing about subpoenas that have been issued unilaterally and I believe irresponsibly by the Majority party that controls this Committee. Now, I'm not a lawyer. I am a scientist and a businessman, and as a businessman, I understand that a company's management has a real duty to inform its investors in a timely manner when it becomes aware of dangers that put the financial viability of its products at risk in exactly the way that a drug company must inform its investors in a timely manner when, for example, its research uncovers a significant side effect or dangers from a drug that it is developing or marketing. To do anything less is fraud, and the investigations into potential fraud by states' Attorneys General is simply doing their job. But while I cannot speak with authority on the legal and jurisdictional hairs that we're splitting here today, I can speak on the scientific ones. There is no doubt that the fossil fuel industry is carrying on its books trillions of dollars of proven reserves and there is no doubt that the scientific reality of fossil fuel-induced climate change calls into question their ability to economically extract these assets, and because the real issues here to me are not just legal and jurisdictional ones; they're scientific and in fact political, and whether or not this hearing ends up being just another gigantic waste of time and taxpayer money depends really on how the science underlying global warming lands. This hearing, to my mind, is just another example of a rear action by a group of people who didn't accept the facts of climate change and are abusing their positions in the Majority to undertake hearings that will in fact end up being a giant waste of taxpayer money. It's long past time that this Committee accepts the scientific facts of climate change like the vast majority of scientists have and take on the very serious work of figuring out where we go from here as a country and as an economy. This is the challenge of our lifetime. And now if I could make a small effort to try to actually return to a scientific point here, Professor Rotunda, I was fascinated by what seemed to be your support of an argument that the Greenland ice sheet would melt and thereby lower the sea level, and I was wondering if you can expound on how exactly the physics of this works. Mr. Rotunda. I'll try to summarize. I gave you the citation for the article and I'll summarize I think what the Harvard professor said. Ice has mass. Mass has gravity. When the ice sheet melts, all the gravity that was then part of the island in Greenland disappears into the ocean, just goes away, and that ice has been pushing Greenland down,and pulling the water up, and now Greenland will be moving up because the water is all over the place. He said that Netherlands should be more worried about the Antarctic ice rather than the arctic ice. Now---- Mr. Foster. So is it your belief that when Greenland ice sheets melt, there will obviously be a local effect where the land will pop up where the load of the ice sheets. Mr. Rotunda. So 2,000 kilometers away, up to 2,000 kilometers away---- Mr. Foster. But overall, the effect just from general principles has to be to significantly raise water levels worldwide unless---- Mr. Rotunda. Well, we---- Mr. Foster. --there's new physics I'm not aware of, I think that's sort of fundamental. Mr. Rotunda. Read his article. I mean, that's what he says. Mr. Foster. Now, this was a peer-reviewed journal or---- Mr. Rotunda. He--the article is summarizing his research, which was in peer-reviewed journals. I read it in the translation form in Harvard magazine. He said that he liked doing the Pliocene Age because it was far away and not subject to this controversy. When he--as he studies this, he discovers it has an effect today. He puts his math in his papers, which were peer-reviewed and published. It's an article about review. In fact, you illustrate the problem of scientists, that he can't believe this, that can't be right, so we should investigate. In fact, we have this strong world that---- Mr. Foster. Has he come under any---- Mr. Rotunda. Let me finish my sentence. When the House of Representatives sent a subpoena to non-government NGO groups, that's chilling. When the state attorney general sends subpoenas to NGOs and threatens criminal prosecution, that's-- -- Mr. Foster. I'm trying to answer a scientific question. It just seems amazing that the overall water levels would change in the direction that you seem to believe---- Mr. Rotunda. For 2,000 kilometers. After that---- Mr. Foster. Oh, you're talking about the local depression, but it would be a big problem for the rest of the world if the Greenland ice sheets---- Mr. Rotunda. Well, I mean---- Chairman Smith. The gentleman---- Mr. Rotunda. --it's not going to be a problem---- Mr. Foster. Anyway, I am past my time here, and at some point I'd like to return to science in this Committee, and thank you. Chairman Smith. Thank you, Mr. Foster. The gentleman from Alabama, Mr. Palmer, is recognized. Mr. Palmer. Thank you, Mr. Chairman. I just want to raise something that ought to be obvious to everybody on the Committee about this. Article I, section A, clause 8 says in regard to the power of Congress ``to promote progress of science''--that's among our delegated powers. I have always assumed when I was asked to come on this Committee that we had that authority. With regard to the federalism argument, this Committee is not seeking to commandeer the AGs' investigations. We can do that together and coexist. Our investigation and the AGs' is in regard to how this impacts what we do here, and in regard to our jurisdiction, I mentioned to promote progress of science, it appears to me that many of our colleagues have pointed out the actions of the AGs appear to be aimed at specific groups and the scientists whose research findings are in opposition to the findings of other groups. And to Professor Turley's point about a chilling effect on the First Amendment, I think it has a chilling effect on scientific research. Do you agree with that? Mr. Turley. I do, and I think it's broader than what's been suggested. As an academic, one of the things that concerned me when I first read about these investigations is that when you suggest that the conclusions that these scientists reach as to their skepticism or opposition to climate change research could be the basis of a fraud investigation, it doesn't just affect them, it affects the universities. Universities accept grants. Academics can come under pressure from universities. Universities don't want to get pulled into some type of fraud investigation. That's the reason I prefer to have this debate handled between academics and advocates in the public realm, not through indictments or subpoenas, and so it depends on whose ox is being gored here, but there are public interest organizations on the other side who felt threatened by the state investigation. There's public interest organizations on the other side that feel threatened by this Committee. There's groups on both sides. I don't distinguish between them. And also, during the tobacco investigation, you had the subpoena of groups associated with the tobacco industry. There wasn't a hue and cry about it but those were directed towards not-for-profit organizations. So once again we have to separate between the policy choice and the legal issue, between the rhetorical and the constitutional, and frankly, I don't see the threshold problem. Mr. Palmer. Well, that--I think that's the point we've made here is that we have jurisdiction over this, that we do have a legitimate legislative purpose to investigate. Would you agree with that, Professor Rotunda? Mr. Rotunda. Absolutely. Mr. Palmer. Professor Foley, the federal government and by extension Congress is entitled to act within its delegated powers. Is that correct? Ms. Foley. Yes. Mr. Palmer. And would you agree that Article I, section A, clause 8 is delegated power? Ms. Foley. Yes. Mr. Palmer. So we're here for a good reason. Would you agree with that? Ms. Foley. I hope so. Mr. Palmer. Well, that's great, because I'd hate to be wasting my time, Mr. Chairman, coming here to talk about this. My concern too, and this has been mentioned by our colleagues on the other side of the aisle a number of times about the money that's involved here. You know, they implied that there's a political agenda, there's a money agenda. I just want to point out that we've got a number of billionaires, one of whom, Tom Stiler, who pledged $100 million in contributions to pro-environmentalist Congressional campaigns--I don't think you can avoid the politics of it but I really don't think that's what this investigation ought to be about. This investigation ought to be about protecting the rights of scientists to do their jobs. It doesn't matter whether or not we agree with their findings. But everybody should be able to conduct scientific research without the fear of reprisal from the government at any level. I'll open that up to the panel. Would anybody agree or disagree with that? Mr. Turley. Agree. Mr. Tiefer. Disagree. Mr. Palmer. You disagree? I'm shocked. Well, my time---- Mr. Tiefer. If I can just say why? Mr. Palmer. So you think the government has a legitimate role to impose itself upon scientific research, to act---- Mr. Tiefer. No, that's not what you asked. Mr. Palmer. --in a heavy-handed--no, that's what exactly what I asked. I asked, does--should scientists be able to conduct their research without fear of reprisal from the government, honest, legitimate research, and you disagreed with that, and I find that shocking. Mr. Tiefer. There's fraudulent statements being made by Exxon when it says there's no peril by---- Mr. Palmer. Well, you're talking about Exxon and you're talking--and you're trying to make them---- Mr. Tiefer. It's fraudulent. Mr. Palmer. I'm talking principle, you're talking politics. Mr. Chairman---- Chairman Smith. The gentleman's---- Mr. Palmer. --just--I'd like to enter something into the record in regard to the wonderful new discovery by our Democrat colleagues and the Tenth Amendment. If it's okay with you, I'd like to enter the Constitution into the record. Chairman Smith. Without objection. Do you want to limit it to any particular part of the Constitution? Mr. Palmer. Why don't we limit it to Article I and the Tenth Amendment. Chairman Smith. Great. Without objection, that'll be made a part of the record. [The information appears in Appendix II] Mr. Palmer. I yield back. Chairman Smith. The gentleman from Colorado, Mr. Perlmutter, is recognized. Mr. Perlmutter. Thanks, Mr. Chair, and thank you to the panel. First question. Nobody on the panel is a chemist, are they? Anybody a physicist? Anybody an astronomer? Ms. Foley. Amateur only. Mr. Perlmutter. Amateur astronomer. And Professor Rotunda, I've had a chance to read some of your articles, and you kind of have an opinion about a lot of different things--anti-Semitism, buying cars, the export-import bank, a number of different things. You're kind of a philosopher about some things, are you not? Mr. Rotunda. A philosopher? I hadn't thought about it that way but I like you, yes. Mr. Perlmutter. And I like your tie, by the way. Mr. Rotunda. Thank you. Mr. Perlmutter. So just a couple questions, and first, Mr. Chairman, I'd like to introduce into the record a letter to you dated September 13th from some 2,100 scientists concerning that there is no chilling effect concerning the activities of these Attorneys General. Chairman Smith. Without objection. [The information appears in Appendix II] Mr. Perlmutter. But nobody's a scientist on the panel, correct? You're all law professors. So I just--you know, we've been going through jurisdiction. Can somebody, Professor Turley, define jurisdiction for me. I mean, let's get back to the basics here because we're talking about whether the power of the Congress exists to subpoena Attorneys General or anybody else, for that matter. What's the definition of jurisdiction? Mr. Turley. Well, the courts look at jurisdiction in terms of---- Mr. Perlmutter. I didn't ask the--what's your definition of jurisdiction? Mr. Turley. Well, my definition necessarily is going to be what is legally recognized---- Mr. Perlmutter. What is your definition of jurisdiction? Mr. Turley. It is the scope of authority that this Committee has through sources like the Constitution---- Mr. Perlmutter. The scope of authority that anybody, a court might have to exercise power, exercise--whether it's over a territory or a person, correct? Mr. Turley. Sure. Mr. Perlmutter. So some of you have referenced the rules that we operate by here in the Congress, and I don't know, I've got the book here someplace. Oh, here it is. Okay. And so my question is anybody take a look at--Professor Foley, you looked at Rule X, I assume, subsection P, correct? And you've listed that in your statement? Ms. Foley. Correct. Mr. Perlmutter. And you also--so you think that there is at least subject matter jurisdiction---- Ms. Foley. That's correct. Mr. Perlmutter. --by this Committee to reach out to these Attorneys General? Ms. Foley. Correct, to investigate scientific research. Mr. Perlmutter. So my next question to you is, did you look at Rule XI, clause II, section 3(a)(1)? Ms. Foley. Well, tell me what it says and I'll tell you---- Mr. Perlmutter. It says ``Except as provided in subdivision (a)(2), a subpoena may be authorized and issued by a committee or subcommittee under subparagraph (1)(b) in the conduct of an investigation or a series of investigations or activities only when authorized by the committee or subcommittee, a majority being present.'' Ms. Foley. Yes, I've seen that. Mr. Perlmutter. You've seen that. Do you know when we took a vote, when this Committee took a vote to issue these subpoenas? Ms. Foley. I'm not aware of---- Mr. Perlmutter. Did you ask? Ms. Foley. --the goings-on---- Mr. Perlmutter. Did you ask? Ms. Foley. No. My understanding is that this Committee has been given the authority to--via the Chairman to issue a unilateral subpoena. Mr. Perlmutter. Do you think the Committee is limited by the Rules of the House? Ms. Foley. I'm sorry? Mr. Perlmutter. Do you think this Committee is limited by the Rules of the House? Ms. Foley. I hope so. Mr. Perlmutter. I mean, I can't--can I go out--under your theory of the law, can Ed Perlmutter go issue a subpoena to Attorney General Biondi in Florida and say okay, why did you not pursue Trump University? Can I do that? Do I have that authority? Ms. Foley. Because you're not the Chairman of the Committee, no, you do not. Mr. Perlmutter. Okay. So the Chairman of the Committee may have that authority. Do you know whether we took a vote? Ms. Foley. I do not know what---- Mr. Perlmutter. You're assuming that we did. Are you assuming that we did? Ms. Foley. Here's what I do know. I'll tell you what I know. Maybe that will help. Mr. Perlmutter. Do you know whether---- Chairman Smith. Let Professor Foley respond. If you're going to ask questions, let her respond to the question. Let her respond to the question. Mr. Perlmutter. I asked a question. Do you know whether we took a vote on the subpoenas to these Attorneys General? Ms. Foley. My understanding is that that is not necessary because the Chairman of the Committee has unilateral authority. Mr. Perlmutter. Okay. So let me ask you this. In issuing these, do you think that 3(a)(1) limits the authority of the Chairman? Ms. Foley. I believe that it is my understanding that the Chairman of this Committee has unilateral authority to issue subpoenas. Mr. Perlmutter. Okay. And do you know how many subpoenas have been issued by the Science Committee since its beginning? Ms. Foley. No clue. Mr. Perlmutter. Until this year and last year? Ms. Foley. No, sir, I do not know. Mr. Perlmutter. Okay. What if I told you that since 1958, only one subpoena has been issued by this Committee, would that surprise you? Ms. Foley. No, and I would not see the relevance to this particular issue. Mr. Perlmutter. Okay. So--and that was a subpoena involving Rocky Flats, which is in my backyard, and costs the country several billion dollars to clean up. Would it surprise you if I told you that during this session, we've issued 24 subpoenas? Ms. Foley. I would say you have an active and interested Committee. Chairman Smith. The gentleman's time is expired, but let me correct him. I think it's 25 and still counting. Mr. Perlmutter. All right. Chairman Smith. Thank you, Mr. Perlmutter, for your questions. The gentleman from Illinois, Mr. LaHood, is recognized for his questions. Mr. LaHood. Thank you, Mr. Chairman. Mr. Chairman, I ask unanimous consent to enter into the record an article published in the Washington Times that discusses the public disapproval of the Attorneys General's investigation. The article highlighted a recent poll that shows a majority of voters including Democrats oppose the investigation. Chairman Smith. Without objection. Thank you for putting that in the record. [The information appears in Appendix II] Chairman Smith. By the way, just to clarify, that was 65 percent support what we're doing and only 15 percent support the Attorneys General. Mr. LaHood. Thank you, Mr. Chairman, and I want to thank the panel being here today. Excellent panel and a good discussion. And while I've enjoyed Professor Tiefer for being here, I would have enjoyed as the minority witness having Attorney General Schneiderman here. It would have been nice to have him here to justify why he's engaged with this obstruction, and he seems like a very capable, smart, accomplished guy who's not afraid to be in the limelight on a lot of different issues, but it would have been nice to have him here to explain that legal reasoning for why they continue to obstruct, and so--and I would also mention, you know, it's been written just recently in the Wall Street Journal that this investigation by the Attorneys General is ``unraveling.'' We had a federal district court judge here in Washington, D.C., that basically ridiculed the U.S. Attorney from the Virgin Islands on the subpoenas that were issued, and I think that's an interesting read if you look at that. And so it would be nice to hear firsthand on the justification, and we don't have that here today. I guess, Professor Turley, in looking at the legal foundation or principle that the Attorneys General are relying on, what is that in your view? Mr. Turley. Well, I find it very problematic, the idea that--look, you can say that the refusal to accept your view amounts to fraud. You know, that's a very easy thing to do. It's a conversation stopper. We tend not to do that in academia. We tend to present countervailing views with our colleagues. There are many people, not just scientists but citizens who don't agree with the climate change research. I happen to agree with it, but there are many people I know that do not. It is an ongoing debate. To treat that as a matter of fraud for a company to be opposed to the thrust of that research, I think is a dangerous precedent. You know, the framers were very concerned about what was called majoritarian tyranny, the idea that in a democracy there's a sort of dormant virus that exists where you can have the majority become a threat to its own freedoms, and part of that is to declare certain facts as inviolate and the denial of those facts to be now crimes or fraud. That characterization alone doesn't have any magic impact upon the jurisdiction of this Committee. You can disagree with what the Committee's doing but in terms of the authority to do it, I'd be surprised if you would want to maintain that position because the next case maybe state AGs who are unraveling other rights that are considered more dear or suggesting that certain facts are now facts that cannot be denied, and that's the reason this is so troubling. Mr. LaHood. And just to follow up on that, Professor Turley, I mean, for the layperson out there when we talk about these subpoenas, I mean, we're not asking--the subpoenas in no way ask the Attorneys General to stop their investigation or stop what they're doing, correct? Mr. Turley. That's right. It's to demand information, and that alone as a court has been very strong in terms of supporting the right of committees to get that type of information. Where the court has problems is when you order state agencies to enforce or carry out federal functions. That's where you cross the line into commandeering agencies. But submission of reports--there was a recent case probably about 2002 called Freelig in the 4th Circuit where they rejected this type of claim, that the submission of information was unconstitutional, and they said that's part of information gathering. Mr. LaHood. And I would also mention there was some comment from the other side that we're not asking that they can't enforce their laws in their state or anything like that, correct? Mr. Turley. Correct. Mr. LaHood. And Professor Foley, is it your legal opinion and analysis that no state official may resist a federal subpoena if there's a federal nexus there? Ms. Foley. Yes, as long as you have a legitimate investigative purpose. Mr. LaHood. Thank you. Those are all my questions, Mr. Chairman. Chairman Smith. Thank you, Mr. LaHood. And the gentlewoman from Massachusetts, Ms. Clark, is recognized. Ms. Clark. Thank you, Mr. Chairman. I would like to thank our panelists, and I'd like to thank Ranking Member Johnson for all of her and her staff's hard work on this issue, and I'd like to express my unequivocal support for the Attorney General from Massachusetts, Maura Healey, and the other Attorneys General who have been subjected to, in my opinion, truly disturbing Congressional overreach and interference with their jobs. There are a lot of people who believe this is a gross and unconstitutional overreach of Congressional power who are not able to testify at this hearing. At this time I'd like to ask unanimous consent to enter three documents into the record. The first is a letter from 14 prominent lawyers and advocacy groups expressing their opposition to this Committee's subpoenas. The second is a letter, and I have it here, with 32,000 signatures of citizens in opposition to what we are doing today, what we are discussing, and these subpoenas. And the third is a passionate editorial from the Boston Globe calling this process ``Congressional bullying on behalf of Big Oil.'' Chairman Smith. Without objection, those three documents will be made a part of the record. You may want to reconsider the second one because that was an online petition where one individual could sign up a thousand different names, and we had such people on that petition like Karl Rove, who I doubt seriously would have signed it, and we have individuals from the city of Newark, Delaware, and Dystopia, Alaska, and other made-up names. So just bear that in mind. Without objection, though, those documents will be made a part of the record. [The information appears in Appendix II] Ms. Clark. Thank you. With that said, Professor Tiefer, I have some questions for you. I'd like to talk about the basis for the state investigations that led to the subpoenas we're discussing today. Documents indicate that internally for decades, Exxon has known that the burning of fossil fuels would contribute to the change in climate, in global climate. Meanwhile, outwardly it appears the company worked to sow doubt in the growing body of evidence surrounding climate change among the general public and its own investors. Whether or not anyone is ultimately successful in proving that Exxon defrauded, committed a crime, it is the state Attorneys General responsibility and their province to investigate crimes against their constituents and that are based on state law, and that includes fraud, and we know from U.S. versus Philip Morris that fraud is not covered by the First Amendment. I have a mom who suffers from Alzheimer's but she still likes to answer the phone, and she believes people who are calling her, and we get a lot of calls, supposedly from the IRS, supposedly from people who are going to sell her a contract to fix her computer she doesn't own. It goes on and on. We get a lot of magazines that are, shall we say, age- inappropriate because she is defrauded. If Attorney General Maura Healey decided under state law consumer protection like is the basis of the case we are discussing today to pursue a fraudulent claim for consumer protection purposes, is that--and then this Congress decided to get involved, and to hold an investigation into that investigation, do you see there would be any grounds for Congress? And if not, is there any difference in this case? Mr. Tiefer. Thank you, Congresswoman. To go to one part of your question, the case went to the Supreme Court about whether the Florida Attorney General could look into fraud in charitable solicitations, which is one kind of what you're talking about coming in over the phone and the Supreme Court said it's fraud, the state AG can look at it. That's my short answer. Do you want a longer answer? Ms. Clark. What I want to know, is there any difference? If Congress decides to interfere in that investigation, couldn't we be chilling the First Amendment rights of those companies? Mr. Tiefer. You mean the companies---- Ms. Clark. The fraudulent companies. Mr. Tiefer. Well, it would be said that you--you can say that when Congress investigates it's chilling things---- Ms. Clark. No, I'm talking about if the investigation, would that be--wouldn't that be chilling those rights and wouldn't that give Congress a right? We have many laws regarding investments, the IRS, a whole bunch of topics on which there is consumer fraud in states. Don't we need to be protecting those First Amendment rights of those companies? Mr. Tiefer. The short answer is, there's no--Congress doesn't get the investigative right just because Attorneys General are looking into fraud. There's no comparison. AGs are enforcing the law. We're only allowed to do oversight, and in this Committee's case at the federal level. Ms. Clark. I am also concerned that these messages--the message these subpoenas and this hearing is sending that if a company is big enough, it can commit fraud and know that at the hint of an investigation, Congress is going to step in and protect it, and conversely, the state officials should not dare to investigate major companies for state offenses without being prepared to be dragged in front of Congress. We can already see in the Virgin Islands citing limited resources, they have already withdrawn its investigation. In your opinion---- Chairman Smith. The gentlewoman's time has expired. She's welcome as others to submit questions to the witnesses and we'll get responses. Ms. Clark. Thank you. Chairman Smith. Thank you. The gentleman from Illinois, Mr. Hultgren, is recognized. Mr. Hultgren. Thank you, Mr. Chairman. Thank you all for being here. I know your time is very valuable, and we appreciate you being a part of this. I want to address my first couple questions to Professor Turley and also Professor Foley if that's all right. According to the District Court, must groups asserting a First Amendment claim still define the universe of responsive documents and search for those documents even if they maintain that those documents are privileged and must groups produce documents responsive to a Congressional subpoena that are not privileged? Mr. Turley. If I understand your question correctly, the issue of free speech arguments and privilege arguments are generally raised in the process of answering subpoenas. You can do that through the submission of an index. You can note on the index privilege or other objections to be made. You work it out with the Committee. Whether a privilege is accepted by a committee has been left to the committee when you're talking about non-constitutional privilege. Mr. Hultgren. Professor Foley? Ms. Foley. Yes. It's typical to provide a privilege log and have in-camera inspection by the court. Mr. Hultgren. Okay. According to the court, must those groups also provide Congress with a detailed privilege log like you're talking about delineating what information they are asserting a First Amendment claim to, and what would that adequate privilege log look like going into a little bit more detail of what you've referenced? For example, does the party asserting the privilege need to specify facts that would establish each element of the privilege they seek to assert or is it simply pointing to swaths of documents including that a privilege applies or not? Ms. Foley. Yeah, under the Federal Rules of Civil Procedure, if you claim objection based on privilege, you must provide a statement as to the basis for that privilege to allow the court--the opposing party to understand the basis of your objection and then of course the full document is submitted to the court for inspection. Mr. Hultgren. Mr. Turley, any other thoughts on that? Mr. Turley. That's right, and one of the things that comes up then when you submit these types of indexes or logs with these objections is also the question of whether this material has been previously disclosed. One of the issues that would come out of this controversy is that many of the groups were open about their coordination on this campaign so there is in fact a lot of public information which tends to waive privilege objections and also there is this question of things like the Vermont public records law being able to get records that perhaps this Committee has not received, and so those are the types of conflicts that are then explored with Committee staff and with these groups. Mr. Hultgren. Asking the same two witnesses, going a little bit further on the privilege, First Amendment privilege, do the Attorneys General not have the ability to assert this Attorneys General not have the ability to assert this privilege because there is a lack of standing? Mr. Turley. I'm not too sure I would agree that they don't have the ability to assert the privilege. I think that when it comes to committee objections certainly and dealing with committees, you do have free speech objections that are raised, associational questions, it seems to me that the AG does have a legitimate issue here in telling the committee look, some of these communications are with people coming to us and saying we want an investigation, and that's going to chill what we do if you make those disclosures, and those are the types of compromises committees can work out. They can allow redactions, they can allow summaries, and that's very common. Mr. Hultgren. Professor Foley? Ms. Foley. So long as the state Attorneys General are raising their own privileges, they have the standing to assert them. Mr. Hultgren. Just going, I guess, more your thoughts and opinions as you've studied this, do you believe the Attorneys General are attempting to raise an impermissible defense solely for the purpose of attempting to garner positive press coverage and cast the Committee's investigation in a negative light? Again, this is your personal opinion. Mr. Turley. I wouldn't say that. I think that the state--I think these Attorneys General do have legitimate issues to raise. I don't agree with their investigation. I think the investigation is very problematic in terms of academic freedom even though I don't subscribe to the view being investigated. I have a serious problem with it as an academic. But I also think that these AGs have legitimate issues to raise. This is our investigation. We are two separate sovereignties. But you've got to keep in mind that it's not uncommon for the federal and state bodies to have overlapping jurisdictions in areas of the environment and other areas. It's very common for the Congress to butt up against these agencies, and sometimes the agencies themselves are the problem that Congress is looking into. Mr. Hultgren. Professor Foley? Ms. Foley. My personal opinion would be that when the Attorneys General use their prosecutorial power to investigate scientists because the scientists are not embracing an orthodox view of climate change or anything else, that that is an abuse of prosecutorial power. Mr. Hultgren. Again, thank you all so much for being here. I appreciate your time and your expertise on this. With that, I yield back, Chairman. Chairman Smith. Thank you, Mr. Hultgren. And the Ranking Member, Ms. Johnson, is recognized. Ms. Johnson. Thank you very much. I just wanted to make a correction on the survey that Representative LaHood read. The question that he asked was, should the government investigate and prosecute scientists--wait a minute--and others including major corporations who question global warming. The question was whether or not they could question scientists and not in general. Chairman Smith. That's correct, and it was 65 percent versus 15. Is that correct too? Fifteen percent, they should not? Ms. Johnson. Well, the question should have been to the Attorneys General, not the scientists. Chairman Smith. Okay. In any case, we've made that poll a part of the record. People can read it. The gentleman from California, Mr. Rohrabacher, is recognized for questions. Mr. Rohrabacher. I was at a doctor's appointment all morning. I apologize for missing this important hearing. Let me just express my concern, Mr. Chairman, that in the last year of this Administration, just time and time again I've been confronted with arguments about why someone who fundamentally disagrees with the ideology of the Administration is a bigot or is now, the latest one, deplorable or is actually some kind of a fascist or a homophobe or whatever. The Commission on Civil Rights simply just--the head of the Civil Rights Commission, I understand, talked about freedom--people talking about religious freedom and claiming religious freedom are really a bunch of bigots. Well, look, and now we have, you know, a candidate talking about people being deplorable, and this suggests to me that what we have here is a breakdown in the respect that people should have for each other and for varied opinions in our society, and I think the worst example of that--and I'm sorry that I missed your testimony and I will read it and read the transcript from this hearing--the worst example is when you have a group of people over a very serious issue, scientific issue, which is global warming, where you have not only paying saying you're wrong or even calling you names but now even taking steps to try to silence someone who disagrees with them. This is outrageous. This is something that we--that nobody on either side of the aisle should excuse. We have our backs and forths, and for us to look into this I think was vitally important for the basics, and the basics, if we don't have freedom to express our scientific disagreements, we don't have that, and instead efforts are made to silence someone. That is definitely something that we should not ignore, and I'm very proud of our chairman for making this an important issue of discussion today. I'm sorry I don't have anything else to add, but I will---- Chairman Smith. That's a good way to end. Mr. Rohrabacher. But I will---- Chairman Smith. I appreciate those comments. Mr. Rohrabacher. I will read the hearing testimony. Chairman Smith. The gentleman from Arkansas, Mr. Westerman, is recognized for his questions. Mr. Westerman. Thank you, Mr. Chairman. I would also like to thank the witnesses for being here today, and the question was asked earlier if any of you are scientists, but I would like to ask the question, are you all constitutional lawyers? And the subject we're addressing today is on a matter of free speech, not necessarily the issue of what the free speech is over, so I appreciate you being here with your expertise. Professor Foley, I would like to ask you, is the First Amendment a blanket shield that can be used to prevent compliance with Congressional subpoenas? Ms. Foley. No, it's never been viewed that way by the court, and in fact, in the criminal contempt cases where it has been raised, what the court has said needs to happen is a balancing. It balances on the one hand the weight of the interest of Congress in obtaining the information, which is usually given what the court calls great weight, and they balance that against the interest of the private individual from whom the information is being sought, and unless the court sees some prima facie evidence that the information is being sought by Congress for the purpose of harassment or intimidation, usually that balance comes out in favor of Congress. Mr. Westerman. So the U.S. District Court for the District of Columbia recently ruled regarding a First Amendment privilege claim in response to a Congressional subpoena. Are you familiar with this ruling? Ms. Foley. Which ruling is it? Tobin? Mr. Westerman. Yes. Ms. Foley. Yes. Mr. Westerman. So would you summarize the District Court's ruling in this case? Ms. Foley. Yeah, the Tobin case is one of those balancing cases, and I believe that--let me see if I can find it. I think I've got it here in front of me. No, I don't. I believe that the court basically did the same balancing that I'm talking about, and---- Mr. Westerman. I was actually referring to the Backpage. Ms. Foley. Which one? Mr. Westerman. On CEO Carl Farrar on the--Chief Justice Roberts has currently stayed the Senate committee subpoena, the Backpage for the legal opinion. Ms. Foley. I'm not sure which document you're referring to. Chief Justice Roberts stayed an opinion? Mr. Westerman. So Professor Turley, are you familiar with this? Mr. Turley. Yes. I mean, the District Court gave a very strong endorsement of the power of Congress to seek the information. I believe it was Judge Collier who issued the opinion, a very respected judge. Chief Justice Roberts, though, did issue a stay and has ordered for further argument to occur. Mr. Westerman. So given the District Court's ruling, do you agree that groups asserting First Amendment privileges in instances where Congressional subpoena has been served cannot use as a blanket shield to prevent the production of any information to Congress? Mr. Turley. Generally, no. Generally, that's an issue that's worked out with logs and indexes and negotiations. What you'll notice, by the way, about many of these cases that we're citing is that in many of the cases, these people did in fact testify but then they refused to answer some questions, and those issues went to the court, and on a couple of occasions the court has said look, that had nothing to do with what your authorization was, the subject matter, but actually in these cases what's often ignored is that they actually did respond to Congress. They did testify. They drew a line as did the NAACP cases of answering questions with regard to membership. The idea that you can just say well, look, I have a First Amendment protection here, I'm not going to respond to any information that the Committee's seeking including information that may in fact be public in some regards I don't think would be accepted by any court. Mr. Westerman. Okay. So according to the District Court, groups asserting a First Amendment claim still define the universe of responsive documents and search for those documents even if they maintain that those documents are privileged? Mr. Turley. What you do is you then work that out through the index and the log. You raise your basis for the privilege. If it's a non-constitutional privilege, the Committee then has to decide whether to respect that. In my experience being around this place for a while, most committees in fact do reach compromises. A lot of times it's not to have a fight over much of the stuff, and you can get summaries of redactions that avoid those issues. Mr. Westerman. So must groups produce documents responsive to Congressional subpoena that are not privileged? Mr. Turley. Yes, and the other thing to remember is that whatever Congress does, particularly with these groups, are going to have usually an element of free speech associational interest. That's very, very common. Every committee has to deal with that. What is important is that principle doesn't require you to be civil. It doesn't require you to be consistent, and the committees of Congress have in fact subpoenaed public interest organizations like the tobacco groups to produce information and they've worked out these disputes in the past. Mr. Westerman. And Mr. Chairman, I would like to submit for the record an article here. It says the Supreme Court refuses to block Backpage subpoenas in sex trafficking investigation, referring to this Backpage case. Chairman Smith. Okay. Without objection, that'll be in the record. [The information appears in Appendix II] Mr. Westerman. I yield back. Chairman Smith. Okay. Thank you, Mr. Westerman. That concludes our hearing. No more members here to ask questions, and I just want to thank you all. This has been an excellent hearing because of our outstanding witnesses, and appreciate all your contributions today and look forward to staying in touch with you all. Thank you. [Whereupon, at 12:32 p.m., the Committee was adjourned.] Appendix I ---------- Answers to Post-Hearing Questions [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Appendix II ---------- Additional Material for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]