stopfraud.gov. i would like to turn things over to shaun henry. >> thank you. good morning. how would like to thank the attorney general for his leadership in this operation. and think it will my partners were standing here with me today on the stage. operation broken trust is the largest nationwide fraud investigation team. the focus of this sweep was fraud against individual investors. operation broken trust highlights the pervasiveness of the surratt and its impact on individuals from all walks of life. the perpetrators of these crimes are those who you might trust, hence the term operation broken trust.

friends, colleagues, people you worship with, people in your workplace, people from your kids' soccer team -- criminals have always prayed on the trust of individuals with offers that are too good to be true. while this seems to change, the underlying greed does not appear in one victim in tennessee -- does not. in one big -- one victim in tennessee said, we were such good friends. he was a brilliant man. that is how he was able to defraud people for years." they still victim's life savings and leave them with uncertain futures. victims may lose their homes, left wondering what to do next. these -- to restrict the scope of the problem, consider this. in one sweep, we had investigations in 48 of the 56 field offices nationwide.

more than 120,000 victims, what then $8.3 billion in fraud losses -- the mission was to fold, to stop and bring to justice those who are responsible. focusing on 231 high priority securities fraud cases ranging from ponzi schemes and foreign- exchange fraud to classic pump- and-dump schemes. the american people need to understand the threat they face and their responsibility to remain vigilant. the american public is a big part of this. more americans are investing in the securities and commodities market. as a result, we have seen more fraud and misconduct in these markets and the creation of complex investment vehicles coupled with an increase in the amount of money invested in developing technology has generated greater opportunities for fraud. this is merely a snapshot. there are many ongoing fraud and we will not let up the fight.

in the past three years, we have increased the number of agents by 47%. as of january 2009, we open more than two hundred ponzi scheme cases alone. many have losses in excess of $20 million. while we had great success in shutting down these schemes, there is more work to be done. we must focus on intelligence and information sharing, not only to prosecute financial fraud, but to predict and prevent these types of frauds. fbi agents and analysts are trained to investigate these threats and will use sophisticated investigative techniques, including undercover operations to successfully prosecute our adversaries and stop criminals before they are able to prey upon others. we need the help of our many partners, including law- enforcement in the private- sector.

postal inspection service, secret service, the department of justice, the irs, the sec, the ftc, commodity futures trading commission, and the national association of attorneys general, together, we're smarter, stronger, seek those who look to profit from the people of united states of america. thank you. >> today's announcement is called operation broken trust for a reason. trust is broken when a 24-year- old financially unsophisticated blind man with a disability, whose mother is unemployed, is misled with lies and half truths to invest the money he obtained from the very accident that caused his blindness and loses his entire investment.

trust is broken when financial creditors take aim at the death, the elderly, and the retired and the unsophisticated and convince them to invest their hard earned money and steal their money and squander it on lavish weddings, fine restaurants, exotic vacations, and vacation homes as is the case in many of the matters brought today. trust is broken when victims of investment deceit lose their retirement income, the home- equity, even their life savings to financial thievery. repairing the broken trust is the sworn duty and obligation of the s e c. when we were in close collaboration with our law enforcement colleagues represented here today and others, our effectiveness is strengthened. working theater, we repair the trust by pursuing the con artists and the scammers responsible for so much financial ruin and the personal despair of the victim that sadly

so often comes with it. we repair that trust by doing what we have collectively achieved in these cases announced today, putting some offenders in jail, returning available funds to investors, the " bridge from working in a regulated industry. -- barring the perpetrators from working in a regulated industry. many cases make big headlines. some perpetrators are high profile. many of the cases announced today do not share those characteristics. all investors deserve equal measures of justice regardless of who lied to them, who misled them, who stole their money, and regardless of whether the fraud gets news coverage or no coverage. they all deserve to have their trust restored. an honest -- honest citizens have a need to see that trust

restored because all of us in this country are united by the principle that those who follow the rules, those who live honestly, those who save and sacrifice and invest, and those who rely on the promises of others to safeguard the financial security for the righteous and respected majority who should be protected from those who would prey upon them. that is not only principle that drives all of us in law enforcement, but is one integral to economic freedom, which is itself a fundamental to democracy and the strength of our society. i share in all the thank you and intelligence to my colleagues. thank you. >> for more than two centuries, the postal inspection service has been committed to ensuring the u.s. trust in the u.s. mail. we've worked hard to protect the public from fraud since the

passage of the federal mail fraud statute in the 19th century. today, injuring the public's trust in the mail is still one of our top parties. postal inspectors have arrested thousands of scam artists using a variety of techniques and operations. unfortunate, those who commit these acts are just as relentless and just as inventive. the postal inspection service has lost a number of public education initiatives to help educate the public to better protect themselves. this past october, we rolled out our latest campaign -- delivering trust. by mid december, we would have distributed millions of brochures with tips on spotting fraud schemes. we have established a dedicated website. unfortunately, we cannot prevent them all. as part of operation broken tossed -- broken trust, we have dedicated to hundred members of his church. he convinced them to invest in an electronics company,

promising an unrealistic return. he mailed phony stock statements to his church cars and use the mail to rake in money from the people he fleeced. the victims in this case were not the wealthy or the well- connected with fashionable addresses. they were working class heads of-households. these were families use better judgment was hampered by the sales pitch from someone they thought shared their beliefs and values. in most cases, they lost all -- part of their savings. these were some that -- they lost all or a big part of their savings. these were -- i am proud of participation in operation broken trust. you can continue to trust on the support of postal inspectors throughout the united states. now i ticket -- night in a back to you. -- now i turn it back to you.

>> mr. attorney general, could you may be addressed the trends you are seeing in these kinds of cases, given the financial situation in many households these days, as to what trend you're seeing some increase in dollars are victims or perpetrators? >> unfortunate, a lot of the cases that are included in today's announcement are ones that are here in good times and bad. ponzi schemes, infinite the schemes, frauds, the are ones that -- they are ones that perpetrators engaging in any economic cycle. we see situations where, as more and more people look to third parties to invest their money through intermediaries, money

managers, and the like, the frequency with which we might see these types of schemes arise and it is on the increase. the use of the internet, you saw some cases announced today where people are vulnerable to that sort of vehicle. the anonymity that comes with it makes it challenging for law enforcement. i think those are some of the trends we are seeing. >> wikileaks apparently released today what is described as a treasure trove of infrastructure and targets around the world which could be damaging not only to those countries, but to u.s. interests. why has not the government just gone ahead and shut down the site? or set -- or shutdown the dissemination of his information? what can you not do that?

>> let me condemn in strongest terms the league that has come as a result of the actions that you have just reference. the national security of the united states has been put at risk. the lives of people who work for the american people have been put at risk. these actions are arrogant, misguided, and ultimately not helpful in any way. we're doing everything that we can. we have a very serious and ongoing investigation that is criminal in nature. i authorized just last week a number of things to be done so that we can hopefully get to the bottom of this and hold people accountable as they should be. >> what are things that can be done? the government explore the ability to be able to see the site.

leslie, you said, look at all the websites -- last week, you said, look at all the website. what are some of the actions you will do going forward? >> is an ongoing investigation. i can say that i personally authorized a number of things last week. i think that is an indication of the seriousness with which we take this matter and the highest level involvement in the united states department of justice with regard to all the tactics that we can do or use to ameliorate the consequences of these actions. i don't to give in to those as well, but we will do everything that we can, both hold people accountable and minimize the harm that will befall the american people. >> there are scams involving foreign exchange. can you explain that a little bit more? >> we're talking about

investments in foreign currency. people think that they are investing in transactions in foreign currency and make money on the fluctuation in the currency rates when, in fact, they are dealing with an registered entities for the most part and the money may end up in fern currency, but it is only in the bank accounts -- and debt in foreign currency, but it is only in the bank accounts of the front stairs -- of the fraudsters. >> how many arrests have been made? >> welle over to hundred people in the lot -- well over to new people in the last three months. >> going back to wikileaks for a minute, can you help us understand why you cannot shut these sites down? is there something within law?

is there something missing with the law that prevents you from doing that? >> as i said, do not want to get into what our capabilities are. i will simply say, as i said, we have a very serious criminal investigation that is under way and we're looking at all those things that we can do to try to stem the flow of disinformation. >> both political parties have offered to introduce legislation. are you working with the hill to do that at this point? or is that not necessary? >> it is something that we need to look at. there have been subsequent court decisions that have cast some doubt on provisions in the act. but people also understand that is not the only tool that we have to use in the investigation of this matter. i want to get into specifics --

i do not want to get into specifics, but people get the misimpression that the espionage act is the only tool we are looking at. we certainly have other tools at our disposal. >> are you talking about search warrants, fisa applications? can you be more specific? >> all i can say is that there were significant things that i authorized. >> when a decision is made on how and where to try the 9/11 suspects, who will make that decision? you pick? >> i think the national security team will make that decision. i will make a recommendation to the president. but the national security team -- i think we will make that decision jointly. different some noise from the decision you made initially?

why should it be your decision? >> of the decision i announced in november of last year is part of an interagency effort. the president was brought into the decision making at that point. this is a national security matter. it is one of the highest national security party matters that we have. it is a program to include in the decisionmaking process all of the key players. >> would it make any difference on the recommendation that you made back in november? >> we will see. we take into account a variety of circumstances, those that are the same and those that have changed, all with the aim of bringing to justice the people who perpetrated this heinous acts on september 11 and bringing them to justice as quickly as we can. >> are there any political considerations? does that include political

considerations? >> no. the only thing that guides me in the decisions that i make are what are the facts? what are the laws that i have to apply? and i make them irrespective of the political consequences. one only has to read the newspapers to see that the decisions i make her not necessarily politically popular. i get that. i understand that. and did not go into this job with the thought that i would be necessarily a politically popular person. i went into this job to do justice, to protect the american people. if that subjects me to political criticism, so be it. >> why is it taking so long to come to a conclusion about this? earlier this year, you said the decision was just a couple of weeks away. roughly a month ago, uses of the similar. why is this decision not being made? >> the process is ongoing. it is one that involves a

variety of factors. it is of in that involves an interagency process. it involves a number of people in the second branch. it takes time. >> do you think you did the right decision -- it involves a number people in the executive branch. it takes time. >> do you think you did the right decision? >> yes. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] clucks we just heard u.s. attorney general eric holder -- >> we just heard u.s. attorney general eric holder. we will get more little

perspective on the leak of government documents from wikileaks. from "washington journal" this is 45 minutes. he represented "the new york times" during the pentagon papers case. thank u for being here. similarities to the pentagon papers case? how do you compare the wikileaks case to that? guest: there are some similarities, in the sense of classified documents leaking to individuals not authorized to have them and then becoming public. çi would say the biggest difference is, the pentagon papers was an historical study of how the u.s. became involved in the war on vietnam. it became public in 1971 when

"the new york times" obtained a copy of most of the volumes of the secret study prepared for the secretary of defense, but the material was all historical, nothing more recent from three years before, and the source had not given it the negotiation body -- volumes of the study, the most sensitive, which dealt with ending the war. here, the wikileaks lakes are much more sensitive, certainly much more current. çby way of an example, you have an american diplomat quoted the king of saudi arabia, saying he wished israel would bomb iran and cuthe serpent's head off.

there was nothing like that. nothing as alive, perha dangerous to publish, probably not as newsworthy as well. the pentagon papers as well showed a lot of lying to rot the çyears from the american government to the american people about our increasing involvement in vietnam, how we became involved, and the like. i do not think these wikileaks leaks and all that at all. the government comes out pretty well. certainly, it does not show a pattern of misbehavior by the u.s. or its diplomats. host: a recent story in "the wall street journal" says --

we are talking about julian çassange. they say bringing to justice is another matter. what vehicle could be used to prosecute him? how far does the espionage act go? guest: we have an espionagect. it is very old, passed in 1917. it is archaic in a lot of ways. it is phrased very broadly. it only you read it, you would think articles everyç day that you read in the newspapers violate the espionage law. that is a problem if a law seems to cover too much, it ends up

covering nothing. is it possible that the justice could mount a criminal prosecution? it is possible. it would be a hard case, but a possible one. one element they would have to prove, which is ordinarily difficult, is bad faith on the part of the personç that has documents, revealing information, not returning document which are secret, in one way or another. i think they may be able to prove that bad faith, although mr. assange would argue that he offered to share the intermission with the state department, get the benefit of their views on what he should publish and what not. but taken as a whole, yes, the espionage act could allow

prosecution, but it would be çdifficult. the other thing is, we would have to find him. host: let's talk about that. you mentioned in an interview that mr. assange has gone a long way into talking himself int violations of the espionage act. how would that add weight to a charge? guest: some of the statements he has made, are on their face, saying, i want to frustrate america possibility to carry out foreign policy, i want to frustrateç government's efforto do things around the world. the espionage act is couched in terms of people having unauthorized documents with reason to believe that they can be used to the harm of the u.s.

or to the advantage of another country. now he is seeming to celebrate every time a document seemed to put the u.s. in a bad light. this is what he didç to the initial dumping of documents regarding afghanistan, which he, in a terribly reckless way, included in the documents, ones which disclosed the identity of afghan individuals helping the united states. when confronted with that, he said anyone helping the u.s. ought to be exposed. that sort of statement is the sort of statement, that if the government were to prosecute, would use against him. to beç fair, he would say, i wrote a letter, i said to the state department, tell me what

is so terrible of what i have here, and i will think about it. it is not so easy. host: floyd abrams, first amendment lawyer, is with us from new york city. we are talng about the legal issues surrounding the wikileaks documents. next phone call. caller: thank you for taking my call. the lastç person talking about home foreclosure, we citizens have a right to know far more of the information that is being hidden away. the last person from alaska, homeowners, not everyone can afford to, we need help the buyers, there is no free lunch -- host: get us back on track here. caller: if we had a wikileaks thing going on to show what is

going on behind the scenes, which people, they can go buy these homes any time. çthe thing is, we have a need o know in this world. host: floyd abrams, can you make that case? guest: i think he will try to. i think the theme of the caller is correct. that is to say, there is the need for more information made available to more people, more often by their governments. çone of the problems here, a problem that we have had for significant over classification of documents in washington, that too many secrets are not secret,

too much that is classified has no business being classified. one of the direction we should be moving to in the future is making more information available. that does not mean the sort of thing that i referred to earlier. the identification of individuals in aç position to e armed in afghanistan ought to be made public, but it does mean that it is a matter of policy and we should be aiming at making more information available, trying to do things to avoid the over classification which has plagued our government for many years. host: error, democratic caller. good morning. -- eric, ñia democratic caller. caller: in many respects, it is

hard to make the u.s. look worse than how it has responded to thisvent. we have seen in recent years, china using drastic measures to block websites, the internet. i hear there are attpts by some groups to do that to wikileaks. we have also seen the assassination attempts in russia. now there are right-wing pundits who are advocating murderç to e head of wikileaks. guest: i certainly agree with you, theall for the assassination -- and there has been some of mr. assange -- are out bridges, unacceptable. that said, -- and outrageous,

unacceptable. that said, there is romm@for criticism for what he has done. fire want to move our law in a juror attritioa direction wheref thing is more difficult to do. so much information is now available, so easily,qu in a mr restorm -- a miniaturized form. it is not so hard for a pfc.ç n the army to get information about discussions with general petraeus and afghan leaders. that is madness. one reason is theechnology that we have to deal with which

makes everything so compressed, so available, and available to too many people. at the same time that we should make more information available, we need common sense on what information is genuinely secret. we need some secrets. we need to protect some secrets. we have to try to find a way to çdo that at the same time as we make more information more candidly and more vigorously available to the american public. host: do you think wikileaks is comparable to a news organization that would be deserving of free-speech protection? guest: it is not just journalists who have free-speech protection.

çwikileaks has played i hybrid role here, a quasi-journalistic role in one way, by providing information, sometimes, as i say, dangerousnformation, but providing information publicly. at theame time, it is almost acting as if it is a source. it makes informationç availabl, 1st to certain newspapers that they will not reveal it until a fixed date, almost as if it is the internal source. wikileaks has a first amendment argument, and it is a serious one, if ever charged. at the sameime, the

government'sç has a genuine and serious national-security argument to be made, with respect to the behavior -- often misbehavior -- of wikileaks. host: jack in providence, rhode island. good morning. caller: good morning. the reason for the call is the wikileaks leak of this information concerning iraq, fghanistan, etc. could probably parallel some things that occurred in world war ii. definitely, the public did not have access to information in the same way. back in november of 1941, the

secretary of war stemson stated -- this can be downloaded nowç as public information. we have toaneuver the japanese into firing the first shot without doing too much damage to ourselves. this is on admiral kimball's grandson's website. that is pretty damning evidence, as far as i'm concerned, that jjájjt to get into a war wi japan. guest: i have to say, i am not an expert on the circumstances of the united states being attacked by the japanese, but there was a lengthy period at that time of the negotiations with the japanese and of demand by both sides, which obviously

lead everyone involved to think my impression was, all thatç ws meant by that statement was, if there was going to be a war, not that the u.s. wanted one, we ought not be the one to provoke it. host: an ap story -- çwikileaks is facing a varietyf attacks. paypal, amzaon have cut their ties to them. there are all sorts of other ways that the service is being damaged.

wikileaks said that paypalç had surrendered to government u.s. pressure. what is the role of government to conflict some sort of pressure on private companies to play ball with what they want? est: that is a strictly legal matter. the u.s. can urge but not require companies to behave in some particular wayç. once it becomes a requirement, ;m it, the first amendment comes into play. i think the issue of whether private companies that disapproved of wikileaks' behavior should demonstrate will

love all of their disapproval by taking a sort of action that you advertç to. it is an important one, a difficult one. these companies have the leg right -- indeed, the moral right -- to behave as they wish and take steps they believen the interest of the country and themselves. on the other hand, we would be veryç concerned in other circumstances if private companies to disapprove of what a newspaper was printing refused to sell newsprint or refused to make paper available, or took other steps to keep this event information from coming out.

-- dissident information from coming out. host: let's hear from an independent caller in connecticut. good morning, peggy. caller: i am surprised at my own reaction to all of this. i thought we were sort of shooting the messenger. i do not know if he exposed other secrets in other countries, like he is doing with the u.s. m to some important people. i cannot wait to hear what the financial revelations will be, if there ever exposed. are you surprised that this has such coverage, compared to the dollar plan case? i thought that was pretty serious. -- valerie plame case?

the commutation by president bush -- scooter libby's sentence -- it was dealt with, as you say, with the stroke of a pen. the conviction stands, but there was no sentence to jail. i am interested in your comment about assange, in the sense about some contribution he may have made. one of the reasons i find this all very difficult is, as one can see, by reading our newspapers, some of the material that had been made available -- even though it does not show misconduct from the united states -- does permit a better

understanding of certain things going on in the world. at the same time, that the understanding can proper -- compromise our ability to accomplish whatwp want in the world. when wikileaks reports about yemen, for example, the about -- about the yemenis leaders saying to an ambassador, you, the u.s., can continue to bomb al qaeda, and we will say we did it. and that, in general,ç is something that the u.s., its people, believe is a good thing. we want to combat al qaeda, but at the same time, we learn something of significance, in

reading that conversation. are we better off, on balance, knowing that, or letting it happen without knowing? as a general matter, those of us who toil in the first amendment, you usually say more the more you get into deep national security areas, the closer that question becomes. not as a legal matter, but the closer the question becomes, what we should warn, if we could will it. host: do you see sortf a 50/50 moment, where some of the things that he has brought to light could be in this moment of free speech, adding to pubdib but do you sees well potentially breaking laws? what is the balance you see here?

how do the scales tip? guest: first of all, what he has done would violate just about every -- violate the law in just about every country of the world. first of all, first amendment, we really mean it and we want to protect freedom o speech, even in situations where the speech may do us harm, unless wedi c13 really persuaded as a general matter that the speech is sure to do so. that is one difference between the u.s. and aoad. second, we happen to have legislation which is so old, so badly drafted, so hard to parse in terms of when it could be applied, that we never knowç wn

the government code or might, or even sometimes should take action. for example, i am concerned if the government were to start an espionage prosecution, that one of the consequences, and unintended consequences, could be significantly to threaten the ability of the american press, at its very best, the report about serious matters relating to national security, which all of us would say, the public ought to know about. . . ç

he represented the new york times in the pentagon papers case 40 years ago, taking the position that the first amendment protected the new york times. a handful of senators are looking at timing of the espionage act. they're introducing legislation and calling it the shield backed appeared it would give the government increased flexibility to go after wikileaks and julian a stauncassange.

hostcaller: guest: congress passed legislation that said any communication, including publication, of classified material was a crime. fortunately, in my view, fortunately, president clinton vetoed that bill. so much is classified the the notion of making the classification alone the basis for criminal prosecution would subject a lot of the best and most important american journalism to prosecution. should congress have a look and see if there is a way to tighten the statute in a way that would

catch the worst abuses while allowing the broad protection of the first amendment to still hold sway, yes, but they should look at it and they have to be very careful. it is very easy, particularly when people are angry at what mr. assange has done, to draft legislation that would make things worse, not better. >> you heard senator mcconnell said that this was a high-tech terrorist. had a slightly different view of what the fallout is. here's what he said. >> i have heard the impact of these releases on our foreign policy described as a meltdown, as a game changer, and so on.

i think those descriptions are fairly significantly overwrought. the fact is that governments to deal with the united states because it is in their interest, not because they like us, not because they trust us, and not because they believe that we can keep secrets. >> do you disagree with that in terms of what the damage done here is? >> i think there is damage and maybe a little bit more profound. i do not think it goes to the extent that some people are saying, but yes, there is real damage. socials a tree numbers of individuals have been made public. -- social security numbers of individuals have been made public. the relationship of the president in yemen who has helped us to fight domestic terror in yemen has been exposed for parts of his relationship with the united states. it could be damaging to our efforts there. there are many similar efforts. in germany, some are calling for the return of the ambassador.

in other places, they will not talk to our people for a while. this hurts. host: that was senator john kerry speaking yesterday. reflect on his comments and those of defense secretary robert gates. what in that says to you that this could be a breach and how much credence do you give to the affect that the documents have had? >> guest: -- guest: i think they're both right. there has been an overstatement of the degree of harm, but i think senator kerrey is correct. there are a number of specific inclusions in the material made public, which i think do harm. and they have done harm and likely to do more harm.

as the department of justice sits back and considers whether to started prosecution, one thing they will necessarily consider in rezko sizing -- in exercising their discretion is figure out exactly how much the harm has been done. the first witness in the defense would be secretary gates. that is to say, mr. assange would try to get the material that you have just shown or for secretary gates to say it again as a way of ameliorating any concerns on the part of the majority or the judge to try to get the case dismissed. but i think the level of harm, and we on the outside can of ally know about it the true level of harm is one

factor which the department of justice is likely to take into account. the other one is whether we can succeed in a prosecution. the last thing we want, i think, is to go in and indict mr. assange and have some european country refuse to extradite him to the united states. host: tracy joins us in annapolis, md., good morning. caller: i have a couple of quick comment and a question. the first, and, i wonder what mr. assange's reaction would be to having his criminal file released throughout the globe. he is accused of two rapes and interval considers it serious enough to go after him. i wonder if that should be considered pubc information. you mentioned that assange wrote

a letter to the department of defense giving them a chance to score of the documents. let's take that a little bit further. assange feels he is in a position to say and released things that others should not. if there was a discussion between assange and the department of defense, the department of defense might say this cannot be released. he will say, you have to convince me and i will decide if you have convinced me. assange, a non-citizen, put himself at the level of jgment exercised only by the president of the united states. guest: i think you made two interesting points. the first, and it has not been talked enough about, there are significant privacy issues here with respect to what has been released here and elsewhere by mr. assange. senator kerry referred to social security numbers, for example,

being released. in other circumstances, wikileaks has provided valuable information and the identities of members are far right wing political organization. there are serious privacy issues with the will still revelation of certain types of information which wikileaks, invite -- in my view, has taken no account of whaat all. and putting aside whether there should be a criminal prosecution, that would be one of the rsons that i believe mr. assange has behaved in a generally reckless manner. beyond that, i think you make a good point that ere are areas here in which material has been

released that he would not want released about himself. but alsoirony nein that, a reason to at least sort of throw up our hands and say there is a very significant inconsistency in what he does, anas you point out, at he surely would like or not like. host: and in finding him, extraditing him as a serious challenge. he has not been seen since november 5. he is believed to be staying somewhere in southwestern england. are other countries interested, perhaps, in filing charges or prosecuting him forhe wikileaks issued specifically? guest: i do not think we will

find other countries seeking to find him. i am most concerned with the finding issue. we have indicted a lot of people through the years to we have then had to try to find. we sometimes have found them later on. general noriega. sometimes we have t been able to find them, robert vesco in cuba, for example. as a general matter of american interest and as a diplomatic matter, if the conclusion of the department of justice is that in,n if he is apprehended an say, sweden or switzerland, that they would not extradite him because they would consider this "political" rather than pure law enforcement and european countries do not extradite

people for political crimes. i do not have a view. i do not know what the answer to that is. but if i ran the department of justice and i thought there was a very good chance that even if he were apprehended abroad, what we would litigated over there and there is a very good chance that we would lose, i would way that very heavily. i do not think we want to be on the losing side of this case. host: boca raton, fla., john, democratic collar. welcome. ller: good morning, c-span. i have listened to most of what you have been saying and i am pretty much in need -- in agreement, but i think you got off on the wrong tack initially when you started to describe the difference between the wikileaks and the pentagon papers.

i think that is normally not geane. i think that is like deciding the difference betwe robbing a bank in new jery and new york. i would like to ask you on a different tack, if you feel corporations should be defined as peopland would you feel the impact of the united citizens case will be down the road. guest: first, i have to sit with candor i was one of the lawyers arguing in that case before the supreme cou that the mccain /fine gold law was unconstitutional. i think that and significant parts of the law, in liting speech and corporate union was on constitution -- unconstitutional.

is far as the impact, it did not have much -- as far ae impact, it did not have much of one in the last election. mocrats and republicans each spend about the same amount of money in all of the congressional races and gubernatorial races added up together. in fact, 63 races that the democrs lost in the house, th reason for the republicans taking over the house, democrats outspent republicans in two- thirds of them. so far, it has not had much of an impact. we will have to wait and see if it does. if it is bad impact. there is still the possibility that congress may pass legislation requiring more in the way of disclosure by corporions and unions if they do or when they do spend money

on the elections. i think more disclosure is not only allowed, from the citizens united ruling, but i think it is a good idea. host: end of this wikileaks -- and this wiki-leaks is considered to be the biggest and that is the comparison. it talks about how the defense department is reminding federal employees is not to read secret cables bause they are classified documents. let's go to st. petersburg, florida.

caller: the sundering of people that come out with truth and the whistle-blowers and the fact that mr. assange himself has had the charges of rape dropped and then picked up again, or molestation. and if you go on the web site seehat the charges themsees and have to do wit consentual sex, but that id had to do with getting std tests for these ladies. it seems like the courts themselves are really geared against these things. guest: i really have no

knowledge of mr. assange's sexual behavior or ms. behavior. nor about -- or misbehavior, nor whether he is being mistreated by the legal system in sweden. there is a role in free society for criticizing even whistle blowers, even people who think they are whistle blowers if we think they have missed behaved -- that they have misbehaved. if i, for example, use the word "reckless" about him, i mean it. i think that may even be a soft word to use. that does not mean that i do not think some of the material released is newsworthy or even

important, but i do think that he has behaved in a way that warrant criticism. host: david, republican. caller: i have two quick points. at thest, i'm outraged difference between the u.s. government prosecuting the messenger verses postured -- prosecuting the murder that was revealed by wiki-leaks. the murder of the helicopter civilian by the u.s. military and the two reuter's newspaper people. the u.s. government is aggressively going after assange, but ignoring murder that took place by the military. secondly, i disagree with mr. abrams.

he just wants to change the law a little bit. i think the laws are backwards. the burden should be on those making things classified, not on the public to correct things that have been improperly classified. i do not think the public should bear the burden of trying to figure out what is "proper" in the public domain. and the earlier phrase that the caller said, that we are criminalizing the truth. i agree with that. guest: me respond to your second point. under president clinton, the classification rules were changed so there was a presumptiongainst classification. that was repealed under president bush. i think it would be iortant to reinstate those standards.

i agree with your second point, that it is important to put the burden on the classifiers to justify their classification decisions. and i think that we should move in that direction as much as possible. host: a quick response to this question from twitter -- guest: first, there are all of the problems that i've identified in terms of the current law, but i'd want to take the question and in the way that i'm sure it was meant, putting aside the language of the law, why shouldn't we be able to prosecute the new york times? the real answer is that is very important. the first protections that --

the protections that the first amendment affords us is to learn of the information such as the "new york times" has learned, to comment on it, to discuss it as a general matter to revl it. the pentagon papers are one example. but here with the new york times -- the "new york times" day after day that has been commenting on material made public by mr. assange. the "new york times" did not make it public. the information is out there and i do think that once it is out there and available to it is useful and significant and important to discuss it and protect the process and the entities that are engaged in that discussion. fally, as i said before, too

much is classified. if we start prosecuting entities assemble because material is classified, in the nixon administration the white house menu was classified. we live in a world where individuals with the power to classify routinely over- assified. that makes it -- the fact that someone in >> on tomorrow's "washington journal," laurie wallach discuss the trade agreement. then a conversation on the dream act legislation.

daniel stein from the federation of immigration reform joins us. after that, the financial health of the state. scott pattison is our guest. "washington journal," each morning here on c-span. later, a look at the role of the federal reserve and the economy. speakers include incoming house budget committee. hosted by freedom works, live coverage is that 11:30 a.m. eastern. >> we do not have a verification mechanism to ensure that we know what the russians are doing. but not know we are doing. -- they do not know what we are doing.

>> find out more about the start arms treaty with russia and what it might accomplish and where the treaty stands now. on the c-span video library, search, watch and share, all free. it is washington your way. >> now, securities and exchange commission mary shapiro on financial industry regulations. this is part of a conference hosted by the american institute of certified public accountants. >> good morning. i am chris holmes and chair of the committee and it is my honor to welcome mary shapiro.

chairman shapiro will be speaking with us for about half an hour. hopefully, there will be time to take questions from the audience. i encourage you, if you have questions, fill out the question cards and send them off. please join me in welcoming merit -- mary shapiro. [applause] >> it is through your efforts to make investing decisions. it is through the decisions of fully informed investors that we can efficiently allocate the capital.

unfortunately, the scandals of the last decade have understandably shaken the trust in capital markets. for some time, the fcc and other regulators have been working hard to restore the trust. this is a goal that cannot be achieved by regulators alone. there is a very important role to play. in fact, one of the first rules were adopted after a became chairman was one that recognizes the importance of your profession. it was early in 2009 and we wanted to find a way to provide greater assurance that the accounts held what they said they held. we enacted rules of that call on public accounts to serve as a second set of eyes.

the rules mandate emanuel surprise examinations by independent public accountants to read in addition, when an advisor or an affiliate's serves as custodian of client assets, the advisor must obtain a written report prepared by an accountant that is registered with the pcaob ensure that controls are in place to protect client assets. as a result of that rule, we believe that it will be more difficult for advisers to get away with it. currently, we are contemplating ways to further leverage. the rule requires auditors to provide assurance that the numbers are accurate as well as controls -- controls and compliance. the rule was first implemented nearly 30 years ago. so, among other things, we are considering strengthening compliance control.

we are considering preparing a twentieth century foundation on which it can implement its new oversight authority. we are considering eliminating regulatory overlap for deals that are also custodians of a registered investment adviser. d we are considering enhancing oversight of broker-dealer custody by providing new inrmation and tools to regulatory examiners. once more, our actions will underscore your imrtance to the financial system. of course custody rules have been far from our only concern recently, and our efforts range well beyond areas that directly touch the accounting profession. i think it's fair to say that our investor protection efforts have been in overdrive for the past two years. since i arrived we have revitalizrevitalized our enforcement in examination units so those that may be tempted to

harm investors have a real fear of being caught. we adopted comprehensive rules to strengthen the resiliency of money market fds and rules that give investors better information regarding the qualificationsf their advisers in the keys they are charged. we begin a detailed review of the structure of today's high speed computer driven market, review that to respond quickly to the events of may 6 with circuit breakers and ther measures intended to reduce the chances of another similar event. and more recentlwe have stepped up efforts to increase transparency in areas that may bleed six democrats like the asset-backed securities market and privat funds. and since the passage of the dodd-frank act, we have begun to great the contours of renew record regime iran over-the-counter derivatives. these are just a few highlights of a robust rule-making agenda that is the cornerstone of our efforts to restore faith in our financial markets.

but rule-making and our old reforms are not enough to achieve that goal. i believe that eective coordination between regulators and accounting professionals must be an important part of that effort as well. in fact, in our quest to restore confidence, there is one area in particular that we cannot dismantle without your help. one barrier against which you have to lead the fight. and that is the investor skepticism that sprang from a decade that they perceive as marked by restatements, misleading windowdressing and quarterly reports, and off-balance-sheet exposures that prevented them from making fully informed investment decisions. the fact is that any central touchstone of functioning capital markets is an investor's ability to get an unvarnished sessment of a company's financial condition. that is why the foundation of successful markets is accurate and transparent financi

reporting. and honest verification of their reporting by independent objective party. and the commission's role in promotg uniform principles for these vital tasks is an important chapter in our history. while accurate and transparent reporting begins with a detailed reporting from every corner of an enterprise, which generates numbers that actually add up at the bottom line, it doesn't end there. that's because accurate reporting is also about timely, full, and fair disclosure of those numbers. it's about getting to nubers that mean the same thing, from company to company and from country to country. and it's about pushing back to assure yourselves that investors can rely on those numbers. i appreciate that you he a diicult job, translating and increasingly complex and global financial world into something that can be understood, not only by market professionals and regulators, but by individuals with less investment experience or sophisticated financial

training. and i recognize that your responsibilities are only growing, as we all appreciate today's capital markets are far more complex than those navigated by the accountants who form the aicpa's predecessor organization, more than 120 years ago. yet your profession fundamental role remains more important than ever. as spelled out in your code of conduct, your obligation is to discharge her duties with integrity, objectivity, do professional care, and a genuine interest in service to the public. that is why we see your profession as an important line of defense, an ally in the effort to protect our markets and the quest to restore invest confidence. of course for most investors the most visible front in the sec's fight is our enforcement efforts. one of my top priorities on returning to the commission was restructuring our enforcement unit and streamlining our

enforcement procedures. today, our enforcement teams continue to pursue cases stemming from actions that contribute to the financial crisis of the past several years. these have included successful actions against countrywide, american home mortgage, new century, and citigroup. in these cases public companies failed to disclose millions of dollars in losses and billions of dollars in exposure to subprime mortgages. these material facts, when unidentified, or were in some cases actively concealed by the prepar and executives charged with making them public. their failure is not only caused immense economic damage to shareholders, but to the financial market and the economy as a whole. we continue to demonstrate our willingness to prosecute those who betray the trust of the public markets. but bringing actions after the fact is no ubstitute for full and honest disclosure at the outset. enforcement actions are cold

comfort for investors who lost their savings after relying on misrepresentations, or half-truths. into many investigations, we have been struck by the maitude of the misrepresentations we uncovered. even when these investigations lead to high profile charges against ceos or cfos, comptroller, as in the type of cases i just mentioned, they can also raise troubling questions about the many others involved in preparing and auditing the fings and reports. we wonder if questions could have been asked early on by prepares and auditors, or if warning flags were ignored. we wonder if the eventual losses to shareholders and investors were multiplied many times because material information was not made available in a timely fashion i people who should have been able to produce accurate disclores. rather than acc prosecution after the fact, sharehders should be able to rely on accurate accounting and

effective auditing of front and throh transparent financial reporting. i urge all of you to ask yourselves the critical questions when you scan with the numbers. questionlike could i be doing more to ensure that the information is accurate? are the results i am reporting an exercise in wishful thinking, are a true report of actual results? i understand the company i am auditing well enough to recognize red flags, and have i taken all necessary steps to respond to them? even if the numbers that are reported are accurate, do they convey a fair picture, or is there a need for additional disclosure? and if you these questions do not yield the answers you need, i urge you to have the courage to challenge those answers, a willingness to take your judgments about the quality of disclosures to the highest levels of management and to the audit committee. that said, we appreciate that it is not ways pleasant to report results that are not ideal.

and we know this firsthand. earlier this month the sec completed our performance and accountability report. it's really the equivalent of a company's annual report, and we posted it online. our gao audit found that the financial statements included in the report represented fairly and in conformity with u.s. gaap. that we discovered to material weaknesses in internal controls of a financial eporting. while it's good to know what the weaknesses are, th are in no way acceptable. and we are already moving to address them. we will be migrating our core financial system to a shared service provider designated by the office of management and budget, one with proven ability to be the high standards the american people deserve. just as we relied on our prepares and auditors, investors rely on you to find and identify weaknesseso thathey can be addressed. your honest assessment of what

the accounng standards invision, what a good management team expects, and what investors and capital markets deserve. of course the challenge of restoring public confidence is complicated by the fact that today's investors relied not only on accurate information about u.s. entities, but about entities across the globe as well. today, a tucson-based investor trading on the new york stock exchange may be trying to analyze a german chemical company with subsidiaries in thailand and chile, and a paris-based auditor. so the sec is working on several fronts to bring regulation in line with a more complex realities of tay's financial world. to bring needed cross-border consistenconsistency to accounting and auditing. for instance, we are supporting the pcaob in its efforts to remove obstacles that have kept it from carrying out its congressionally mandated responsibility to inspect non-us firms registered with them. i applaud recent e.u. decision

that allows the pcaob to negotiate agreements with individual countries that will permit the pcaob to perform its inspection role. and i look forward to the final agreements with individual countries that will allow those inspections to go forward. in this and other important areas, we are now looking forward to a pcaob that function with renewed energy and effectiveness in the months ahead. for many months, as you know, two positions on the board were filled on an interim basis by members whose appointments had expired, and one seat remained vacant. this was largely the result of a constitutional challenge to the very existence of the board. but with the supreme court's summer ruling, the sec is now searching for a new chair and two new board members. ensuring that these positions are filled with individuals of integrity and spotless reputations, and demonstrated commitment to the interest of investors, and the public, is a

top priority. and we are now in the final steps of the selection process. i want to be the first to say that during these trying times i think the board did an extraoinary job, but we are excited at the prospect of dedicated and highly qualified members taking their seats, and a board able to focus on their critical role without a legal challenge hanging over its head. in addition to the pc a obese negotiations there is of curse another international issue of significant interest to the sec and to the accounting profession. in addition to international auditing responsibilities we are of course focusing on accounting standards and convergence. because investors should be able to make accurate comparisons and judgments regardless of entities line of business, ownership status, or corporate domicile. and so the sec continues to monitor the progress being made by the fasb andy iasb on the convergence of international

accounting standards. as expected, the path towards convergence has proved steep and winding at times, but both boards have responded to the challenges. for example, fasb and the isp launch intensified efforts to deliver issues jointly in monthly meetings which will allow board members to discuss and resolve issues face-to-face. they have increased efforts to work to unify project teams which would members of both boards. and both have gave it to periodic public reports on the status of their effort. i believe these actions will continueo increase the effectiveness of the collaborative efforts by the boards, and i'm sure that fasb acting chair leslie seidman and iasb chair sir david tweedie, we'll have much more to say on this subject when they join me tomorrow. convergence is a top priority for the sec, but it's both boards recognize the resulting standard in addition to being in uniform must be high quality

improvements over current standards. constituent review and comment are important parts of the process that will produce high ality standards that inestors need. for example, they were driving force behind the board's decision to modify and reprioritize the standards being developed under joint agenda. the resulting staggered schedule for issuing the boards exposure draft will allow for greater input by stakeholders. and ths will create an enhanced ability to consider whether the standards result in a consistent, high quality, globally accepted accounting standards and solutions we all seek. hopefully, many of you that a chance to read the progress report by the sec staff that we posted in october. as you will hear later, the staff is highlighted several preliminary observations based upon their work to date, including observations on important implications related to different methods of

corporations, th iasb funding model, and observations regarding the important role that could be played by fasb if the commission were to mandate ifrs for domestic companies. i am pleased with progress to date, and i remain optimistic about achieving a convergence that benefits invested in the u.s. and around the world. a significant portion of the work plan remains in progress, and the commission works for two preceding period repos on the step into making more progress in the year ahead. today, investors are trying to shake theirs giddiness. they are asking if everyone from regulators to accounting, doing the job they expect us to do. and that's a fair question. and because investor caution makes it harder for dynamic enterprises to raise the money they need to expand and grow, it's important that investors get the answers they need. i believe the sec is on track doing the job that is expected

of us as a rule maker, an examiner, and a law enforcer. but the importance of the accounting professionals cannot be overstated either. it's not just new rules and regulations that protect investors. it's accurate, honest and complete accounting i men and women who, as chief justice burger wrote in u.s. v. arthur young, demonstrate complete fidelity to the public trust. our markets depend on competent investors, and their confidence rests in part on large part in your hands. i know that's a great deal of responsibility but that's impornt role you play. the sec and other agencies can increase the confidence invested into our financial markets, but our effort succeeds only those investors believe theumbers you write on the bottom line. thank you very much. [applause]

>> okay, the first question relates to ifrs workplan come and what a my personal expectations regarding when will the commission make a decision on adopting ifrs for u.s. companies, what is the commission likely to decide, and when it's implementation likely to occur? okay. are not in the middle question. you know, it's still our plan to make a decision on the incorporation of ifrs into the u.s. reporting system next year. and despite a common perception that it will be by june of next year, we have not held ourselves to the june date. so sometime next year. we expect to be able to make a decision. one of the reasons we have the staff so vigorously engaged on the workplan and making their progress public is so that everyone can see the areas where

we have concerns over the areas where we think significant progress is being made. implementation, one of the things we heard in response to the comments when we republish the work plan in february was a great desire, pretty much across the board you can while ifrs was not by any stretch uniform embrace the u.s. public companies, or by investors, there was a lot of unanimity around if we go in this direction allowing sufficient time for companies to adjust. so i think it's likely to be a minimum of four years, although again that a point for the commission after we make the more fundamental decision about the extent to which, if at all, we will be incorporating ifrs. next question s, some singular the sec's timeline requires the commission to address the possible adoption of ifrs by june 2011. however, that timeline was established before the passage

of the dodd-frank wall street reform and consumer protection act. given a sigificant amount of rulemaking that dodd-frank requires of the sec's in the next 12 to 18 months, is june 2011 realistic? how does the demand of dd-frank affect the commission's timeline? as i said, we are not strictly committed to june 2011 decision date, or rather sometime in 2011. i will say that while, you know, i'm sure you read in the press we have been extorted ount of work to do with spect to dodd-frank, over 100 rules to write, many within the first 12 months, certainly within the first 18 months, 20 studies to conduct, a number of new offices degrade within the agency, i will say that on a small amount of that burden is falling on the office of the chief accountant, jim kroeker can probably speak to this later. much of that burden of dodd-frank rulemaking really falls on other divisions, most notably trading and markets for all other derivatives,

regulation, division of investment management for the private funds, regulation and a division of finance for the new public company disclosure requirements that has been decreed by the law. so i think we will be able to not have ifrs or other accounting initiatives delayed any way by the dodd-frank effort. many of those have commented on the possible adoption of ifrs by domestic registrants, have been larger companies, investors and audit firms. healthy sec identifies the issues and concerns of the rest of corporate america? i.e. the vast majority of domestic registrants, investors and audit firms who do not have the resources to write comment letters or to invest in preliminary and -- evaluations of the effect of adopting ifrs. it's a great question and one we've been very focused on, and in our workplan, you will note

that we talk extensively about our desire and really need and determination to understand what the impact of incorporating ifrs would be on smaller u.s. public companies who might not see the benefits, fankly, of being mparable and having orability with issuers in other countries just because of the nature of the shareholder base. so we are highly focused on the costs and burdens of smaller companies. weid actually get quite a number of comment letters that raise that issue. we try to make the comment process very simple. it doesn't have to -- you don't have to hire a law firm to write a comment letter. you don't have to do sophisticated analysis. you can e-mail to us to comment mailbox. we try to make as simple as possible for smaller companies and those who can't expend the resources or the time to go out and hire somebody to write full-blown comment letters. so we have actually heard from

lots of smaller companies come and our office of chief accountant has also made an effort to reach out to smaller public companies to understand the issues that they think ifrs uniquely presents for them. but on that note i would encourage you to make sure that your clents views are heard at the sec directly. the next question, let me take a sip of water, on the disclosure project. about a year ago, we heard about a core disclosures project to review the commission's disclosure requirements and evaluate whether they should be revised to elicit the right, not more, disclosures. we haven't heard much about this since then, what is the status of it. do you think we'll see any action, anytime soon? when we announced th core disclosure project in our defense, i will say that it was

a longer-term project. it was before dodd-frank was actually passed but we were anticipating lots of work ahead, and particularly for a corporation finance dvision. but we did think it was a very important to put out on the record set at we could begin to get comment and commentary from others. our desire to really review all of our disclosure requirements from a-z, to understand what we have competitive disclosure, when we have disclosures that no longer are relevant, where we have gaps where disclosure might be more appropriate. and i would point perhaps to our window dressing proposal that we diin august or september of this year, one of those areas where we saw gap in disclosure. as a way to try to take a coherent and cohesive look at all of the disclosure obligations, to minimize redundancy in partcular. so we have an internal task force that is working on it, and

it had been working assiduously over the past year. i can't tell you a timeline for when we might see the larger picture unveiled, but it's still veryuch one of those projects, along with a market structure along with proxy, that we are not going to let be pushed off the agenda just by the exigenciesf the current rulemaking workad. what changes have been made or are anticipated to be made to the sec's internal structure to meet the deadlines imposed by the odd frank act? for example, you've indicated you expect the commission to hire a number of people to meet the mandate, can you discredit in general the skill set that you expect to focus on, lawyers or accountants -- accounts? and in wh areas do you expect about the most people. you know, we have, we are often

criticized for being an overbloated agency, and i take exception to that, not because i'm a lawyer but because we are inside a law enforcement agency. so our lawyers are very important to us and we also write a lot of rules and we do in the law. that said, there's a great need at the sec for our accountants the really critical to almost every dision and every function we erform. but also for some less traditional skill sets in the context of the work of the sec. so we've been bringing people from trading dsks, from investment banking firms, from credit rating agencies, from hedge funds, from financial risk analysis organizations, from risk management operations within all kinds of financial entities. and we've had tremendous response to the positions that we have posted, including in areas like quantitative analysis, which has been very exciting for us. and in just the last year, in

terms of the numbers of peple we have brockton with new skill sets, they are not huge numbers, but they are significant. they are high focused for u in the recruiting area, and they are making an enormous difference. i can say that when we had to reconstrt the train from a six, which is a convoluted and difficult process in equity markets i because there's not a single consolidated audit trail, it lets us look at all the order and transaction data in one place. we have to assemble and analyze multiple different audit trails, formatted in different ways with different data contained in each ofhem. had we not have some of our new risk management employees and people who were used to handling massive amounts of data, it might've taken is even longer than the project did take. so we are finding that in enforcement as well, people with expertise and structured products, are enormously helpful to us in understanding some of the products that wall street introduced over the last everal

years, with her impact was on the market. we are looking at algorithmic traders having, help us understand how they operate in different markets, stress and is, enormously helpful. so throughout theorganization we have really tried to focus on bringing in skill sets that help us keep up with wall street a little bit better. in addition we created a division of risk, strategy and financial innovation which has been a focus for a number of these new skill sets, but they are giving us the ability to think about how to connect the dots more effectively and have to take a more interdisciplinary approach to some of the problems that we see. so, it's a work in progress for sure, but it's a very exciting to see the sec bring in some new talent. lots of dodd-frank questions.

we will move away, proxy ccess. the commission'sroxy access rules are eing retooled and reviewed will this cause the rules do not go into effect as proxy season, if the ruling strikes down some or all of the new proxy asset rules, what do you expect willhappen next? well, when the sec was sued by the chamber and others over the proxy access rules, we actually made the ecision to suspend the effectiveness of the rules during the litigation. we did not want companies to go to the proxy access process, and he left in a very difficult situation if the court in fact invalidate the rule. so they will not and are not in effect for this coming proxy season. if the ruling strikes down some or all of the new rules, what happens next totally depends on what the court says to us. and there could be a range of

outcomes there, and i really would want to predict what those might be, but we will have to see what the court says, and respond accordingly. i would say that we feel very confidt about the rules. we think that they were well done and done for all the right reasons, and will improve governance in this country there and so we're going to obviously defend them in the court of appeals. there's a flashing red light here. >> unfortunately we're out of time, but please join me in thanking chairman schapiro for joinin

>> the white house and congressional republicans reached a tentative deal today to extend all bush tax cuts. that is next on c-span. then, the legal fight over california's same-sex marriage ban. a federal appeals court heard a .hallenge to proposition 8 later, attorney general eric holder to reporters about fraud cases. >> in november, john ronyon defeated longtime democratic representative john adler. john runyon played 14 seasons in

the nfl, nine of those with the philadelphia eagles. the district includes cherry hill and long beach island. in alabama, terry school will become the first african- american woman to represent the state. she'd succeeded john chamberlain. she attended princeton university, harvard and oxford. she is an attorney and the only incoming freshman democrat who has never been elected to public office. >> now, president obama announces a deal on tax cuts and the unemployment insurance. >> hello, everybody. sorry to keep you waiting. for the past few weeks, there has been a lot of talk around

washington about taxes and there has been a lot of political positioning between the two party around kitchen tables, americans are asking just one question, are we going to allow their taxes to go on to refer or will we meet our responsibilities to resolve our differences and do what is necessary to speed up recovery and get people back to work. there is no doubt that the differences between the parties are real and profound. ever since i started running for this office, i have said that we should only extend the tax cuts for the middle class. these are the americans have taken the biggest hit, not only from this recession, but for nearly a decade of costs going up when their paychecks have not. it would be an injustice right now. it will deal a serious blow to

our economic recovery. republicans have a different view. they believe that we should also a permanent tax cuts for the wealthiest 2% of americans. i completely disagree with this. the permanent extension of these tax cuts would cost the $700 billion at a time when we would focus on bringing down our deficit. this is where the debate has stood for the last couple of weeks. what is abundantly clear to everyone in this town is that republicans will block a permanent tax cut for the middle kos -- middleclass unless they also get a tax cut for the wealthiest americans, regardless of the impact on the deficit. we saw that on two different

boats -- boats. -- votes. this would be a chilling prospect for the american people. these taxes are scheduled to go off on january 1 because of arrangements that were made back in 2001 and 2003 under the bush tax cuts. i am not willing to let that happen. i know that there are some people in my own party and the other party that would prolong this battle even if we cannot reach a compromise. i am not willing to let working families across this country become collateral damage for political warfare here in washington. i am not willing to let our economists look backwards just as we are pulling ourselves out of this devastating recession. i am not willing to see americans that stand to lose their unemployment insurance at the end of this month be put into a situation where they might lose their home or their car or some additional economic

catastrophe. as much as political wisdom may dictate, it would be the wrong thing to do. the american people did not send us here to win symbolic victories. they would much rather have the comfort in knowing that when they open their first paycheck on january of 2011, it will not be smaller than it was before because washington decided they preferred to have a fight and failed to act. make no mistake, taxes going up on all americans would raise taxes by $3,000 for a typical american family. that could cost our economy well over 1 million jobs. at the same time, i am not about to and the $700 billion to

our deficit by allowing a permanent extension for the wealthiest americans. i will not allow any extension of these tax cuts for the wealthy, even a temporary one, without also extending unemployment insurance for americans that lost their jobs or additional tax cuts for working families and small businesses because if republicans truly believe that we should not raise taxes on anyone, then surely we should not cut taxes for wealthy people while letting them rise on parents and students and small businesses. as a result, we have arrived at a framework for a bipartisan agreement. for the next two years, every american family will keep their tax cuts. not just the bush tax cuts, but

those that were put in place over the last couple of years that are helping parents and students and other people manage their bills. in exchange for a temporary exchange -- we will be able to keep the tax cuts for the working families. the child tax credit that makes sure families do not see their taxes jump off to $1,000 for every child and the american opportunity tax credit that insurers over a million students and their families that will not see their costs of college shoot up. these are the tax cuts for those that have been hit hardest by this recession. it would be unacceptable if their taxes went up while everybody else's went down. we are facing the prospect of having this lifeline yanked away from them in the middle of the holiday season.

this would mean a 2% employee payroll tax cut for workers next year. the tax cut that economists agree is the most powerful thing we can do to create jobs and boost economic growth. we will prevent -- we will provide incentives for businesses to complete write off their investments next year. this is something identified back in september as a way to help american businesses create jobs. it is finally going to get done. in exchange, republicans have asked for more generous treatment of the estate tax that i think is wise. but we have insisted that that will be temporary. i have no doubt that everyone will find something in this compromise that they do not

like. there are things in here that i do not lie, mainly the extension of the tax cuts for the wealthiest americans and the wealthiest states. but these tax cuts will expire in two years. i am confident that as we make tough choices about bringing our deficit down, as i engage in a conversation with the american people about the hard choices we will have to make, it will become apparent that we cannot afford to extend those tax cuts in the longer. as for now, i believe this bipartisan plan is the right thing to do. it is the right thing to do four jobs, for the middle-class, for business, and for the economy. it offers us an opportunity that we need to cease. it is not perfect. this compromise is an essential step on the road to recovery. it will stop middle-class taxes from going up. it will spur the private sector to create millions of jobs and add momentum that our economy needs. building that momentum is what i am focused on. it is what members of congress

should be focused on. i am looking forward to working with both parties to seek that we get this done before everyone leaves town for the holiday season. we cannot allow this moment to pass. let me just end with this. there has been a lot of debate in washington about how this would ultimately be resolved. i just want everybody to remember over the course of the coming days, that these are not abstract fights. 2 million people will lose their unemployment insurance at the end of this month if we do not get this resolved. millions more of americans would see their taxes go up at a time when we can least afford it. my singular focus over the next year will be on how we will continue the momentum of the

recovery to grow this economy and create more jobs. we cannot play politics at a time when the american people are looking for us to solve problems. i look forward to in gauging the house and the senate's, members of both parties, as well as the media in this debate. i am confident that this needs to be done and i am confident that congress will do the right thing. thank you very much, everybody. >> now, a three judge panel on the ninth circuit court of appeals hears oral arguments on california's band -- ban on same-sex marriage. in a 2008 election, voters approved proposition 8, an amendment that limits marriage to a man and woman. the court will decide if a lower

court found unconstitutional. from san francisco, this is 2.5 hours. please proceed. >> good morning, your honor --ed charles cooper and i represent the appellants in 10-1966-96 the appellate artificial proponents of proposition 8 and the official campaign committee. there are two jurisdictional issues before the court this morning. the first is whether this court has who restriction to review

the merits of the decision striking down proposition 8 as unconstitutional and the second jurisdictional issue is whether they were able to join proposition 8 despite the fact that the complaint itself was brought forth by individual plaintiffs seeking relief on behalf of themselves without any claims on behalf of a class or any request for class certification. speaking to the standing issue, your honor, the question is whether it the proponents has standing. mr. tyler will speak to that issue momentarily. with respect to proponents, we submit this issue is controlled by the supreme court's decision in carter vs. mackay. in that case the plaintiffs brought a first amendment

challenge to a moment of silence law in the state of new jersey, 1983 suit. they sued the state's education officials and no one else. the attorney general in that case and the state and local education officials declined to defend the moment of silence of statutes. in the default of the official attendance, the court allowed the speaker of the assembly and president of the senate on behalf of the legislature to represent the state's interest in defending its statutes. the supreme court rejected the claim that the speaker and the president of the senate were not proper parties defendant. they did not have standing. the reason they did was because the new jersey supreme court had

previously in a case called for site allowed the legislative officers to intervene on behalf of the legislature to represent the state's interest in defending a statute in that case. that was a reduced the strength statute. >> was that before or after his arizona official that you just referred to? >> a departure -- the carture case? >> yes. >> before. >> the court has never allowed article 3 sandlin? >> that is true. it could not have, but opponents in this case are really in precisely the same shoes as the

legislative officers work in that case. because, your honor, under the law of the state of california, the proponents, in fact proponents of initiative measures are routinely and rarely allowed to intervene to defend the measures that they have proposed. >> but in state court proceedings? >> yes, your honor. what is your best case for allowing for article measure standing in federal court on appeal? >> your honor, i do not have a case for allowing a proponent article 3 standing. i am here advocating that this case the one that allows opponents to just -- >> justice ginsberg said in an arizona case that she was not

aware at any arizona case, which supported standing to the proponents. and did you believe there is a california case which enacted arizona law which may have included not only as statute but a supreme court ruling or may not? are you aware of any california law which states that the proponents do have standing? >> your honor, in fact the case of strauss, which involve these very proponents being allowed to intervene to defend the live -- validity of this very proposition is directly on point and precisely analogous to the foresight case. >> strauss did not really talk

about where you as proponents as agents of the case. strauss only talks about you as proponents as the agents of your proposition. we are in a different situation here. >> your honor, foresight itself talk about the legislative officers being allowed to intervene on behalf of the legislature in that case as of the rise to represent the state's interest. >> let me ask you a little bit different question. there is no question the attorney general has a duty to defend all of the causes to which the state or any state officer is a party in his official capacity. did you ever seek an injunction

or an order for anything suggesting that the attorney general said appear and appealed, and if in fact he did not appeal, allow you to appeal? >> we did not seek to enjoin or otherwise course through some additional measures to -- >> the attorney general has the power to do it in his official capacity or duty to defend all causes to which the state is a party, would not that have been inappropriate way for you to have made sure of your ability to seek standing here? >> did someone do that? did someone there to the california supreme court and seek to appeal -- >> i believe you are correct. a lawsuit brought, but not one

that my client was involved in. the suit was unsuccessful. and the point that i would make is that i have little doubt that in the forsythe case, referenced in karcher that the attorney general also had authority to defend the new jersey statute at issue and to take an appeal, but that attorney general declined to do that. the new jersey attorney general declined to do that just as the california attorney general has declined to do it. and yet, in karcher the united states supreme court recognized that the legislative officers had the authority to not only

intervene at the trial level and defend the moment of silence peaked statute but to notice and take appeal that there were parties not just in the trial court but also in the third circuit. again, i would urge the court that the law, the state law relied upon by the karcher court as demonstrating that the legislative officers in that case had authority to represent the state's interest in defending s statutes was a new jersey supreme court decision, just like the california supreme court decision that we submit establishes the law on which we rely.

that is the law involving these very proponents with the california supreme court allowed these proponents to intervene in the strongest case and defend the constitutionality. when no one else would do so. and all in the state defendants refuse to defend that statute. or at least to challenge the constitutionality of that statute. the only party defending the constitutionality of the defendant across the board were these proponents. and the california supreme court denied intervention status to

another group. a group that had been an active group involved in the campaign itself and sought to come in and intervene as well. in in the strauss case also at the court of appeals level -- it was not in the strongest case, it was in the marriage cases at the court of appeals level, the court of appeals denied intervention to a group that was not be official proponents, but it stated that we make no ruling with respect to under our law the official proponents would be authorized in default of the state officials in lieu of state officials who have declined to defend would be authorized to come in and represent the

state's interest in defending a state statute. to go one further question about that earlier discussion about whether anyone tried to get this court to appeal the attorney general. that was a a writ of mandate case. did the court say anything about that? >> per did me, i do not have the specific recollection of the court's ruling in that case. >> better to say you do not know than to guess. -- four give me. and-- forgive me. >> we can certainly check that. there are two of you in this hour. and to go your designated only one of us would be eligible --

that was a wise decision. >[laughter] >> in light of that directive and the fact that i am at the podium first, i would like to reserve the balance of my time, which is just a couple of minutes for rare bottle. >> certainly. >> thank you. >> sorry for the delay. may it please the court, my name is robert tyler. the plaintiffs think that justice is served where appellate review is frustrated in this case, where the state depended circumvent any

evidence to state law that they are politically opposed to. >> i think they're talking about procedural rules. >> yes, your honor. >> why don't you start by telling us where dolores is. >> could you tell us where delores is? you know who she is. she is the clark. >> she is not our clients. i cannot speak on her behalf. the fact is that the deputy clerk is a commissioned officer. in she is under the government code for a civil commissioner for marriage. and she is all the same responsibilities. >> is there anything in the record to suggest that she is acting with the cleric's authority? >> the answer is no, isn't it? >> there is nothing that shows

the clerk has designated her. we have visited bridgette we have a designation from the supervisor. we have the declaration of mr. vargas -- miss vargas that said she has these responsibilities. the court is to assume the facts to be true. >> what facts can we assume about the fact that there is nothing in their record to indicate that your clients, as any authority whatsoever to attend to intervene in the litigation? >> in her declaration she says she has responsibility. >> you are repeating yourself now. there is nothing in the record to indicate she is acting on the authority of the clerk, correct? >> that is correct, -- >> is the clerk elected or appointed -- appointed?

to go she is appointed. takeshi is appointed by the board of supervisors. in this particular case what is important is the fact that the official duties of an officer are altered as a result of the outcome of the case. >> it seems to me that if we read 1922 case of california and says all political functions of an office remain vested in the county of an officer. who would continue to exercise them himself when present and an absence they would only be exercised by the deputy in the name of a war as an act of the principal. so i guess i am again worried that this clerk can only act as

an agent of the principal and if the clerk is not here, we have our problem. >> i would disagree because the cases -- >> you disagree with [inaudible] ? >> i disagree that --- >> their ability to act is what we are really about here. given foult, which was about what deputies may do or given sauder vs sikqe county, and both of those cases this against they are only mere agents of the principal. >> your honor, i understand, but the fact is that this is a

government position. this is a person that has duties that are designated by the california family law code. designated by the california health and safety code. these are acts that this person is carrying out. as a result, her duties will be altered. she is an joined by the court's injunction. she is -- >> is it your position she is found by the junction? >> yes, your honor. i thought your brief said to the contrary? take up the fact is that judge walker's order finds her. the order says that all persons under the control and authority are to state registerear be bound. judge walker in its denial the intervention said that all county clerks are subordinates were under the supervision and have nord authority to disregard

state officers. >> i thought she was an independent officer? >> we believe that is correct. and the fact of the matter is that judge walker issued an order -- >> that is a different question. whether shue was found in that capacity as supportive of the register and that may lead you to a different theory. that may give her some ground to complain that she is bound or in risk of being bound. but as far as actually being bound, the marriage capacity, as far as i understand she is an independent office sent with

duties that is set forth in the code and not subordinate to the registrar. is that correct? >> that is right. and >> the fact that we believe to determine the statutory requirements, to turn -- determine whether they are satisfied when an applicant becomes before her, she comes under the board of supervisors. >> let me ask you about a question about that. are you suggesting that clerks are state officers? >> your honor, they are statutory officers. >> are they stayed officers performing state functions qwest >> no, your honor. they are local. i believe they are local officers. they are individuals that are statutory recreated under the

government. it had you get around the fact that they are state officers and the duty they undertake. they do come because they are performing estate function and that is the issuance of a marriage license, which is a state concern. >> your honor, i would can see. i am not sure what this case turns on. whether it turns on is whether or not her capacity at the local duties willher her judy' be altered as a result of this case. >> if you are insisting upon that, let me turn to language in wall. it says it however the controlling role of wall requires an official to carry out a ministerial duty dictated by statute, unless and until the

statute has been judicially determined to be unconstitutional, it follows that such an additional cannot a court rule on the constitutionality of the issue. >> , your honor -- >> that is the language. >> you are right. in that situation this city and county of san francisco is attempting to violate the law. the county of imperial stand here today is seeking to uphold the law. it >> i understand klerk is not attempting to get the court to make a ruling. the court attempted to make the clerk perform the duty. what year was four offices circumstance. -- lockeyear was up for

different circumstances. >> if the clerks are state officers and cannot compel the court to rule and the attorney general has the duty to defend those officers, then why would the clerics have standing separate from the attorney general? >> your honor, let me refer you to a case, richardson vs. trimeris. and that case there were three clerks who were sued and the secretary of state in regard to registration of felons for purposes of voting. in that case the mendocino county clerk had the ability to take this case and defend where there were no other defenders. that is what is so important about this case, there is not a single governmental defender defending this action. here we have a governmental defender who is willing to come to this court and wants to ensure that they are not placed

and illegally conflicted position that is the outcome of the incentive order. >> suppose it's set in every case in which first-degree murder is charged, the prosecutor shall seek the death penalty. and the deputy county attorney and imperial county attorney did not want to seek the death penalty. could they challenge the constitutionality from the provision? >> the deputy in their individual capacity could file an action and to challenge it in state law. they could not on their own decide to violate their law, which is exactly what happened. >> supports the u.s. district court held the proposition unconstitutional and a deputy county attorney and who wanted

to seek the death penalty in every first-degree murder case sought to intervene, would they have ed? >> i believe the deputy attorney what havould have -- the state code provision that authorizes the deputy prosecutors to perform those duties the same as the district attorney of the county? >> your honor, and our particular case, ms. vargas has the same responsibilities. >> under the code she is given the same duties as the clerk. >> she has the same responsibilities. she has stated that in her declaration. >> do you know the deputy

prosecutor has the same duties as the county attorney? >> [inaudible] >> why don't you say you do not know the answer? >> i do not know the answer, but that case does not turn on it. and >> when you're asked a question and do not know the answer, say so. >> to county clerks were named in this lawsuit. -- two county clerks were named in this lawsuit. and they both responded saying they did not want to defend the proposition where they were comfortable with their ruling that said it was unconstitutional. am i correct so far? >> that is correct. >> could a deputy clerk come in and see expanding saying i do not agree with my boss? >> your honor, i believe they should have the ability, if they have official duties -- >> how long do you think it

would last taking that action? [laughter] >> precisely the problem and may be why we do not have any other governmental defenders coming to the court. when we have the county of imperial and the court saying i performed the its responsibilities on a day-to-day basis -- >> we have a deputy clerk. but us not forget that. we are left at complete mystery to let us know why the clerk is not before us. >> again, i do not speak for the clark herself. if she wanted to prohibit the deputy clerk from being involved in this case, she could have -- >> we just do not know. >> i do not believe that is an issue that this case should be decided upon, whether or not she is involved or not. >> it is an issue that concerns some of us on the panel. >> i can understand that, your

honor. and to go we're wondering why there is not a single sentence in her affidavit saying she is acting on the authority of the clerk. >> your honor -- >> issue with the board of supervisors on this case? -- is she joined with the board of supervisors on this case? >> yes. i was mistaken. the clerk is elected. as my time is coming to a close, if i may just conclude -- >> let me ask you one more question about this. i read a california case that suggests that the attorney general is the only person to whom authority given by the law to appear for the people, it may delegate the authority to appear. in that case did. did you ask the attorney authority tothe

appear? >> we did not appear y. we are appearing on behalf of the county and county clerk who had direct responsibilities to issue a marriage licenses. just like the county clerk in every other marriage case that has been brought before the curtain. it is the county clerk's that are sued. the outcome of this case will alter my clients official duties. and ms. vargas is bound by an injunctive order that has placed her in a legally consenting position. does she comply with the california constitution or comply with judge walker's order? the cases are clear that that gives hurt not only our right to intervene, a standing in this case. to go deadlock percent your client was found by the injunction -- >> jusdge walker said your client was

found by the injunction? >> we're taking other people's time. yes or no did judge walker said your client was found by the injunction? >> no, but he did so through two different orders in my opinion. he did so by saying that in the denial of intervention our client is subordinate to the state registrar and stating that ms. vargas had no authority to disregard. we do believe that there is in error, but my client is therefore bound by the injection. >> thank you. mr. cooper. and i am sorry. >> mena please the court, my name is david boyce. we represent the plaintiffs. let me begin by interim one of

the court's questions with respect to the effort to get a mandate requiring the attorney general to appeal. that was simply a one-sentence denial. the court did not provide any further analysis. i also would like to just be certain their record is clear that permanent injunction that was issued by judge walker relates only to the official defendants, and persons under the control or supervision of those defendants. >> sewed judge walker was wrong about the register -- so if judge walker was wrong, and she is not bound by the injunction, correct? did a that is correct. she have standing? >> we do not believe she does. we believe the decision makes absolutely clear that

individuals like mr. argus, even if she were the actual clerk, which he obviously is not, would not have standing. -- individuals like ms. vargas, even issue with actual clerk, which she obviously is not, would not have standing. >> what about clerks? day klerk's issued the licenses. are they found by the injunction? >> they're not directly bound by the injunction. >> how are they found but not directly? >> marriage is a statewide concern, not a local ordinance of all concerned. and the forums in their roles come from the states to the locality. >> if our state was lifted and the injunction was in force, could the county clerk in san diego county refuse a marriage license to a same-sex couple?

>> she could without violating this injunction, however, if she did so, then the attorney general would as they did and locklier act to make it uniform. >> what would happen is no one is bound by the injunction other than the two counties. if they want to enforce the court order that have to go to state court, which would be free to determine the issue of scargy marriage again. is that right? >> yes, and no, your honor. that is right with respect to the counties. with respect to the remainder of the states, under its california state law, article 5

sections 1 and 13 give the power to execute the laws and enforce laws to the governor and attorney general. is it, since the invention does run not only to the counties, but to the governor and the attorney general in their official capacities as well, those individuals would have responsibility for making the law uniform. >> what does ms. vargas do? is she supposed to run the risk of contempt? her lawyer is sitting here today. i suppose after this proceeding is over he will go over and tell her that in the opinion of the plaintiff's counsel that she is not bound by the injunction. what is she supposed to do? >> if the curve. a court work to a form -- if the court were to confirm that the thingst below, thean two

would happen. the state defendants, the attorney general and governor, would move to try to make uniform the law within california. and to go where will you move this? >> they will move in the state courts just like they did and locklier.in >> and we're back to where we started. the attorney general can move to a state court and we do not know what the state court will do. in >> no, i think we do know what the state court will do because and lock clear, what the state supreme court held was that the county clerks were just ministerial officials and they had to apply the law as set forth by the attorney general and by the governor. what you would find is that that is an enforcement proceeding.

and i do not believe it would be necessary. >> the attorney general could have stepped this whole proceeding? day is it that we find a proposition to be unconstitutional and you go and forced it because we have decided that? >> not exactly, your honor. and what happened was that we have the trial before judge walker. after the trial he enjoined the governor and the attorney general. all of the defendants. and it >> that phrase was the make of all defendants was chosen by plaintiffs' counsel and you chose to name only as

danita and los angeles clerics. >> that is exactly right. we proceeded exactly as >> that was a no-win tactical choice? -- >> that was a knowing tactical choice? >> just as the locklier case was not a class action were the california attorney general proceeded against the county of san francisco -- >> i do not understand your answer, other than that as of now, no one is found in except

for the clerks in los angeles and alameda hi. >> no other clerks are directly bounds. but because all of the county clerks are ministerial officials who simply issue marriage licenses to whoever the state determines is entitled to marriage licenses, that is simply a ministerial function. that function is the same before or after this court's decision. >> if the attorney general consult the clerks with a lot is or the governor can, you did not need this case at all. >> an absence of the case the attorney general would not have told -- >> i think at least the attorney general would have told them that. and [laughter] i think he made it pretty clear.

and i think the attorney general would have liked to uphold a match, but an absence of a judicial determination that that was the law, i do not think the attorney general would have. both the attorney general and the governor have a continue to enforce this law while this case has been proceeding. and that is the score stayed the district court decision, but they could have based on the district court decision, tried to change what in california. they have not done that. >> let me ask you a question about that. it is my understanding that these particular initiatives could not have been vetoed by the governor. correct? >> yes, sir. >> it is also my understanding that the legislation could not amend them unless approved by the voters? to god that is correct, your

honor. >> if that is so, i guess my problem is that in fact become a nurse actions and the attorney general's actions had essentially nullified the considerable efforts that were made on behalf of the initiative to be placed on the ballot and obtain passage. >> i would disagree with you for the following reasons. >> they do not appeal and therefore no one can appeal. had they effectively nullify the effects? >> is only in the sense that in every standing case that if an official does not appear in its molokai's its. >> and answer is yes. >> honest answer is yes, because what we have is an attorney general and governor with no

ability to notify axe of the people and then by just not appealing, they in fact do it. what they do is they do not appeal the federal district court decision after the trial. that is exactly the same thing that happened and diamond against charles. >> my worry is that by suggesting they will not appeal, are they really suggesting they are not willing to enforce the initiative? >> >> you are suggesting that they need to do at the present, but have said i'd give up, i do not care. it is over. and i am not going to enforce. >> what i suggest to you is that

that is true in every standing case. and every time the united states supreme court decides as they did in diamond against charles that because of who the state of illinois officials have decided not to continue to defend after the initial story -- her initial -- after the initial -- >> what did they do in this case? >> in this case they did not actively defend. the people are supposed to be able to elect to pass a proposition unless it is unconstitutional. no officials will defend an issue that does not seem to be

consistent with the initial system or the people are allowed to pass a measure and it is the state -- and if the state does not defend its, it is costing in the towel. >> with respect, i think there is a different issue as to who has standing to appeal. >> i know that, of what i am asking you isn't this contrary to a system where the government is not allowed to veto this measure but he can an effective veto it if he and the attorney general will not defend it? justice ginsburg's speak to this in the arizona case? >> we were on the wrong side. >> i thought it was the right side. [laughter] >> ultimately the arizona

supreme court ruled the same weight. he made that argument, and i thought it was a strong and engaging argument, but justice in spurts and not think a lot of its. >> i think that is exactly right. -- he made that argument, and i thought that was a strong and engaging arguments, but justice ginsburg did not think a lot of the. >> my worry is not necessarily to the standing, but to another issue which is pretty vital to you in the fact that they will not offend or will not even appeal to let those who would defend the initiative argue. and are they in fact not enforcing the statute? >> your honor, i do not think so. and i think that is a question of california state law in any

event. that is not something that affects the jurisdiction of the scourge. >> do i have any california law directly on point? -- that is not something that affects the jurisdiction of this court. the only case, your honor, that i would ask you to look at in that respect would be the lock lier case, which referred to before. >> at the california law is not clear -- if the california law is not clear in does not have precedence specifically authorized the proponents and with what justice ginsberg said what she did not find any arizona law that authorized it, why shouldn't we asked the california supreme court

whatsits the law is in california? >> i believe that if this court believes it is unclear what the law is, that would be inappropriate approach. however, i would urge you that took based on what both the california appellate courts and the california supreme court said in a proposition 22 litigation, that it is clear that whenever the intervention rights may be, they do not have standing. >> the purpose and its to not have standing. for example, in the proposition 22 case, the son of and that was involved -- the fund that was involved, they were put forth as proponents -- >> that does not pull the court. i do not know was strictly a

man's. they were not the proponents. >> they claimed to be the proponents. >> but they were not. >> one board member was on both. >> i do not see what we would have to lose by asking the california supreme court to certify the question and they can tell us very quickly if they would like. >> i think if you concluded that it was unclear and concluded that that would in fact provide article 3 standing, that would be the appropriate approach. i would urge the court that while that kind of authorization is a necessary condition, it is not a sufficient condition for article 3 standing in any event. >> why, given what justice ginsburg said about the arizona initiative that what she wanted to know was whether under the

arizona law krona would have standing? in fact, i think they even asked the proponents to supply them with the arizona law. why do you't -- think that would not be enough? >> in her opinion, after stating that in karcher state legislatures were given authority, she said however, these proponents are not elected officials, and this court has never recognized proponents. and she goes on to say that under arizona law, they are not authorized to act, but she does not address what would happen if there had been authorization. for example, the united states supreme court in rains verses burke, you had an explicit

authorization from members accord to come in and challenge the constitutionality ever to give their line item be duveto statute. that is not sufficient to give article 3 standing, even if california work to intervene, and even if they were permit promise to have standing, that would not, in our view, article 3 standing -- provide article 3 standing. >> if that has not been decided by a california supreme court and the supreme court whether than kill an initiative by the voters have passed, would it be advisable to attempt to get a legal answer to this question of for saying -- before saying

we're going to let the district judge make a final decision without finding out from the california supreme court in the united states supreme court whether it is standing and then we can reach the merits. would that be advisable? >> i would suggest that because it is so clear that in order to have an ability to invoke the jurisdiction of this court, the appellate must have a personal concrete's, in particular is injury, and they do not. there is nothing that the california courts could say that with regard article 3 -- which provide article 3 constitutional standing. it does not make any difference whether or not the california law or anybody else tries to get these people standing.

under the federal constitution, the case and controversy, they do not have standing unless they have a personal, concrete, and its allies injury. the united states supreme court has held that over and over again. the in the state supreme court said even members of congress, even if they are acting pursuant to a grant of jurisdiction by the congress of the united states do not have thought article 3 standing because they do not have that personal interests. >> if zooey did certified this decision to the california supreme court and they came back said reading the callous touche -- the constitution of california together, we do not think it is our part. but the governor and attorney general can veto a proposition, therefore we think under california law that is appropriate for opponents of

proposition to stand in when they refused comment that even if the california supreme court said what i just described, you would be back here arguing what you just argued? >> we would, your honor. i would say that if the california supreme c court believes in order to save the initiative and have to be defended, the way for it to of done that would be to grant the mandate requiring the attorney general to come in and do so. they did not do so. these analysts and not even ask them to do so. >> let me move to another question. proponents did note even do so. >> do we have any authority to address the scope of the injunction? >> i did not believe so, your

honor. >> you are suggesting there is no authority anyplace which would allow us to determine the scope of the injunction? concluded thatt the scope of the injunction was somehow beyond the subject matter jurisdiction of the court below, then i am not prepared to say that the court does not have the power to respond to do something about it. but i do not believe there is any precedent that i am aware of for that. >> you are saying in any event that the scope of the injunction is quite limited. >> it is. you are counting on the attorney general to go to state court and have state court expand and the

injunction to the other counties. >> i would not put it exactly that way. >> it may not be the best legal terms, but it is the practical-- >> the practical terms is we do have to depend on the governor and the attorney general. >> you're lucky the election came out the way it did. [laughter] >> suppose we were to agree with the position that you just take would ms. vargas be able to declare its position on whether this finds her or other county clerks? >> i believe that she could do that, your honor. i believe she could do that. >> if the court determined that

she was found by the injunction, what would happen then? >> then she could have an appeal and she could have standing in that situation. the courtk that' below what interpret its injunction as applying only to pass the defendants in that case. she would not be bound to directly bounds. take up that is what you would argue? -- >> that is what you would argue and debate agreed, she would be free to refuse a marriage license to same-sex couples? >> shue would to the extent that the attorney general and governor of california moved, as i believe that obligation to under the california constitution, to make marriage

laws uniform throughout the state and abide by the injunction that has been issued against them in the case below. >> why not bring all of these issues together and decide them right here? so that it is clear in california who has the right to marry into does not and what what clerks are supposed to do when same-sex couples asked for the issuance of a marriage license? >> your honor, that was exactly the situation that was addressed by the united states supreme court. and when the court said we must put aside the natural urge to proceed directly to the merits of this import disputes and sublet for the sake of convenience and efficiency. and what the court said is that constitutional standing serves

as so many important purposes that it is not open to the courts to simply say let's get it all together and settle it now, that is the most efficient way to do with. there are important constitutional and policy reasons that underlie the standing requirements. where it is clear, and i respectfully suggest to the court, it is crystal clear in this case. >> it is hard to believe that you deliberately only wanted to get a judgment in alameda and los angeles and did not want to get a judgment -- this judge's ruling applies throughout the state. for get that. it is hard for me to believe that a lawyer with your ability and whatever else you have -- [laughter]

nevertheless, it is hard for me to believe that. let me ask you one other question. this marriage system we have in california is an integrated system. as you say, the state is supposed to give the court order spirit anrs. they all act in concert to get people married. it takes a lot of people to do this. they are all acting together. doesn't the injunction brunn to all of those that are acting in concert to perform, give this marriage done between two people? those people covered by the injunction? >> the injunction itself did not go as broad as that might have under rule 65. the injunction at self-help is

directed to the defendants and their official capacities and all persons under the control or supervision of defendants. and that is the limitation of the injunction that was actually entered. and now, one of the defendants that we have not mentioned is the registrar. that is the person responsible for the form and content of the marriage license. the registrar, who is the defendant here, will enter the injunction have to change the form and content of a marriage license. >> for that reason i am some surprise by a your answer to whether the clerk could even bring the motion for a declaratory judgment. as i understand locklier, the registrar puts together the

form, the questions to be asked, all of a particular things about the court needs to know, and as i understand what clear, -- locklier only completes the ministerial forms. how would the clerk then bring a or appropriate case about >> i think you are exactly right and i do not think the court could. i think the one possibility is if the court were to say, i am concerned the injunction that you have issued binds me before the registrar has even given me any further instruction or additional -- she would have the narrow ability to simply ask

the court whether the injunction binds her, the deputy clerk, directly or not. but i agree with your honor that the deputy clerk, even the color, if the real clerk was here, would not have any standing to contest that issue or even litigate that issue. it is purely a ministerial function. i would try to end with two points. one is that this case is at the federal level of reflection of what happened at the state level in the marriage cases in which you didn't have the clerks, and you didn't have other defendants. what you had was the state defendant and the attorney general and the governor and of registrar as respondents. those are the proper respondents. the appellants here do not have

been the personal, concrete, particularized injury that this court and the city of lake tahoe made absolutely clear was law, that the united states supreme court repeatedly made clear is no longer, that justice ginsburg's opinion, i think, makes particularly clear is the law. they do not have standing. and because they do not have standing, all of the other concerns -- and they are of legitimate concerns from a policy standpoint. we could have a different system of government where you didn't need that kind of standing baird but those gains of concerns exist in any standing case. abortion -- >> you are running over. we know how important standing is, but let me ask you one other question. under rule 65, anyone who has served and is acting in concert with the people against whom the

injunction -- people named in the injunction, people will act in the concert or participate with them are bound of they are served. would that not apply to any clerk who is involved in the marriage business in california? in this group i described to you, where it is an integrated process, so what not anyone bound by the injunction have a right to an appeal? >> i think people directly down by the injunction would have the right to appeal. i do not believe these appellants are directly bound by that injunction because the injunction makes clear who is bound. if they are acting in concert with somebody and we serve them with injunction, which we have not done, and would not do, then

the issue would be whether that binds them or not. i did point out to the court that the form of the injunction here does not use the "in concert" language. >> rule 65 does. it doesn't have to be in the injunction. the rule says that anyone who does that is bound. i am not sure whether you have the knowledge -- if that would be enough, or you have to be served. you might serve them, it would help us clear up the case. [laughter] >> i've got will decline that, your honor. >> thank you very much. >> thank you very much. you must have a lot to say after hearing all of that. >> a lot to say but little time to say it. the one thing that is most important to say, your honor, it is you put your finger, i believe, precisely, judge reinhardt, on the key point of

from arizonans as justice ginsburg -- this is what she said and the language i think you were referring to. she distinguished did this way. no one in arizona identified arizona law pointing initiative sponsors as agents of the people of arizona to defend in lieu of public officials the constitutionality of an assistance made lot of this state. what law from new jersey did of the speaker and the president of the senate brings is -- to the supreme court? they brought in a jersey supreme court decision allowing them in of the forsythe case to intervene and to defend the constitutional challenge to new jersey state statute. >> one quick point -- wasn't the state attorney general willing to defend? >> the state attorney general did not defend.

i did not believe he was willing to defend accept to the extent that the decision might result in attorneys fees against the state. he was willing to reserve some of a right to defend in that respect, but it is at least my understanding that the only individuals who took a notice of appeal -- appeal, and that is what we are dealing with -- notice of appeal of the third circuit were the presidents and the speaker. what long do i bring you? i bring you exactly the same law the legislative officers brought the supreme court -- because i bring you the strauss case, in which these very proponents were allowed to intervene in lieu of the state officials who did not defend the statute, allowed to intervene, to do so, standing alone. judge reinhardt, my time is judge reinhardt, my time is