Memorandum). In that Manual, Thomas Jefferson recognized the potential problems and disadvantages faced by the minority at the hands of an abusive majority and acknowledged the need for special protections. However, according to Jefferson, those protections are embodied in the House Rules themselves. As Jefferson explained:

[A]s it is always in the power of the majority, by their numbers,
to stop any improper measures proposed on the part of their
opponents, the only weapons by which the minority can defend
themselves against similar attempts from those in power are the
forms and rules of proceeding which have been adopted as they
were found necessary, from time to time, and are become the
law of the House.

Jefferson's Manual § 284 (emphasis added). Thus, the notion that the interests of the minority political party are entitled to special protection from the Judicial Branch conflicts with the House Rules, and with the fundamental principle of majority rule.

C.

The House Republicans' Brief Demonstrates The Political Nature Of This Dispute. After devoting the first fourteen pages to a historical exegesis that is, for the most part, irrelevant, the Brief attempts to demonstrate that the political question doctrine and the remedial discretion doctrine do not apply. Most of the arguments in the Brief are adequately rebutted in Defendants' Reply, filed on June 27. However, a few points warrant a separate

response.

First, the basic premise of the Brief's argument on justiciability is that Rep. Leach is not complaining about any acts taken by Congress or its Members. Brief at 15. However, that argument is directly contrary to the preceding fourteen pages of the Brief, which ask the Court to protect the rights of the minority from the will of the majority in Congress. That assertion is also contradicted by Rep. Leach's own statements, and the intense political

debates between the minority and majority parties on the floors of both Houses of Congress and in the press regarding the timing and scope of Congressional oversight of Madison and related matters. See Defendants' Reply at 5-9. The real issue in this case is whether the minority can, under the House Rules, conduct an investigation that is outside the Committee structure and has not been Congressionally authorized.

The Brief also contends that Rep. Leach's claims "are not in essence the product of any dispute he has with his fellow members of the House of Representatives." Brief at 17. However, it is simply beyond question that Rep. Leach's real problem is, in fact, with his fellow Members, particularly his Committee and its Chairman, regarding the application of the House Rules, H.R. Res. 394 and its implementation by the House Leadership.' That is exactly the type of dispute that the D.C. Circuit intended to avoid through the application of the remedial discretion doctrine. See Defendants' Memorandum at 15-20; Defendants' Reply at 10-13.

'See Statement of Rep. Leach during press conference on June 30, 1994, transcript at 5 (attached as Ex. G) ("But I would that Mr. Gonzalez would allow a forthcoming probe by the minority within the constraints of the subject matter, which we find chafing, but which, clearly, we'll have no other alternative except to accept."); Letter from Hon. H. Gonzalez to Hon. J. Leach, dated March 21, 1994 (Ex. 27 to Rep. Leach's Motion for Summary Judgment) ("In view of your obdurate and obstinate refusal to honor the Special Counsel's request, and in addition, your threats to disrupt or in your words create a ‘donnybrook,' I have no recourse but to postpone the hearing set for Thursday . . . ."); Letter from Hon. J. Leach to Hon. H. Gonzalez, dated March 21, 1994, at 2 (Ex. 28 to Rep. Leach's Motion for Summary Judgment) ("I hope differences in judgment on this issue do not stand in the way of the legislative business before our Committee."); Jerry Seper, Leach Criticizes Narrowed Hearings, The Washington Times, June 30, 1994 at A4 ("Rep. Jim Leach said yesterday that Whitewater-Madison hearings proposed by House Banking Committee Chairman Henry B. Gonzalez were 'unprecedentedly restrictive."") (attached as Ex. H).

83-009 0-95--37

Second, the Brief argues that Rep. Leach's suit does not require interpretation or application of any House rules, and therefore, that political question concerns are not implicated. Brief at 16, n.9. Again, however, that statement is contradicted by other portions of the Brief, in which it is argued that House practice defines the role and authority of the Ranking Minority Member. As discussed in the Defendants' Reply, if Rep. Leach and the House Republicans want this Court to look beyond the plain language of 5 U.S.C. § 552(d) and its legislative history, then this Court must consider the evidence of Congressional intent expressed in the House Rules, H.R. Res. 394, the Joint Statement and the statements of the Committee Chairman. See Reply at 9. To rule for Rep. Leach and the House Republicans, this Court would be required to side with one political party in its interpretation of those authorities. Again, that is exactly the type of dispute that, under the political question doctrine, the courts lack jurisdiction to hear.

Third, the Brief argues that the political question doctrine does not prohibit the courts from interpreting the House Rules, citing Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994). However, in Michel, as explained in the Defendants' Reply, the D.C. Circuit merely reiterated the proposition that courts always retain jurisdiction to decide whether a House Rule is constitutional.' In this case, Rep. Leach has not challenged the constitutionality of the House Rules, but instead has posed a question that would require this Court to interpret and apply those Rules. That is a question for the House itself, not the courts. See U.S. v. Ballin, 144 U.S. at 5 ("Neither do the advantages or disadvantages, the wisdom or folly, of

'Further, in Michel, the D.C. Circuit declined to dismiss the action under the remedial discretion doctrine because non-Congressional parties were involved, and their interests were also at issue. 14 F.3d at 628.

[a House] rule present any matter for judicial consideration."); Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C. Cir. 1982) (refusing to "construe the rules of the House of Representatives" or "impose upon the House [the court's] interpretation of its rules"); Exxon Comp. v. FTC, 589 F.2d 582, 590 (D.C. Cir. 1978) ("where constitutional rights are not violated, there is no warrant for the judiciary to interfere with the internal procedures of Congress. ."), cert. denied, 441 U.S. 943 (1979); Harrington v. Bush, 553 F.2d 190, 214 (D.C. Cir. 1977) (refusing to "intervene on behalf of one member of the Legislative Branch to change 'the rules of its proceedings' adopted by the entire body of the House.").

Fourth, the Brief contends that the opinions of the District Court and the D.C. Circuit

in Lee v. Kelley, 99 F.R.D. 340 (D.D.C. 1983), aff'd sub nom. Southern Christian Leadership Conference v. Kelley, 747 F.2d 777 (D.C. Cir. 1984), are not relevant because the claims of Senator Helms were dismissed for lack of standing. Brief at 19. However, the District Court opinion makes it clear that the court denied Senator Helms' request to intervene because it concluded that his "attempt to intervene in effect represents a 'dispute with his fellow legislators."" 99 F.R.D. at 342. The District Court denied Senator Helm's request for documents, concluding that "[i]t is not for this Court to review the adequacy of the deliberative process in the Senate or to question decisions of the Senate leadership." Id. at 343.

The D.C. Circuit affirmed, concluding that Senator Helms lacked "a protectable interest and thus lacked standing," and therefore, did not address the remedial discretion doctrine. 747 F.2d at 781 n.3. However, in other cases, the D.C. Circuit has relied on the concepts of congressional standing and remedial discretion almost interchangeably. See

Defendants' Memorandum at 15-18 and cases cited therein. Regardless of the legal rationale, the facts of Lee were similar to this case, in that Senator Helms was asking the judicial branch to overrule the will of the majority of the Senate. Because Leg is very similar factually, it should guide the outcome of this case. See Defendants' Reply at 11: Defendants' Memorandum at 17-18.

Finally, the Brief contends that the result proposed by the Defendants would emasculate the ability of Congressional plaintiffs to bring lawsuits, and penalize Members of Congress based on their status as legislators, giving them fewer rights than a private citizen to obtain documents. See Brief at 9-20.' Those assertions are completely meritless. Defendants' position would not penalize or disadvantage Rep. Leach in any way, because he has the same right as any other citizen to challenge the application of specific FOIA exemptions to particular documents. However, he has not done so in his Complaint, and that issue is not what this case is about. Rather, Rep. Leach asks for a determination of "who speaks for Congress." That question can be answered only by Congress itself. See Defendants' Reply at 5-6.

'The Brief characterizes Defendants' argument regarding the remedial discretion doctrine as requiring courts to dismiss any suit brought by a Congressional plaintiff, including one brought by a Member of Congress under the Federal Tort Claims Act, because the Member could conceivably obtain relief from his fellow legislators. Brief at 19-20. As a practical matter, that example makes no sense, because presumably, a Member would not bring such a suit in his official capacity, but as an individual. Further, that example is irrelevant because it does not touch on politics, or the legislative process.