[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
       
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              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.
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    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:]
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    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:]
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    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

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                   Answers to Post-Hearing Questions


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                              Appendix II

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                   Additional Material for the Record


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