do you feel the mandamus case as such is here? >> yes, we do, sir. >> i search your petition in vein to even find a mention of it and i wonder what is your position that the issue is in any event -- >> yes. we say it's here not only because of the appeal itself but plus of the petition for mandamus. we did discuss that in one of the briefs. it may be that it wasn't originally when he filed the original brief. >> you mentioned it in your second brief on the merits. >> yes. >> but not atle in your petition for -- >> we did on page 2 of the petition, mr. justice. i would think so but there's no issue between the parties on the issue of jurisdiction. i mean there's no argument as between the parties on it and the parties can't agree on it i must say that on three different bay sees the jurisdiction does exist as we see it. i'm not yet getting to the issue of the matter that's been raised but discussing the statutory basis of jurisdiction, and -- but to answer your question directly, sir, this is correct. we are standing upon not only

the jurisdiction point or after he said a lower court should issue and would be obliged to issue a mandamus to madison because a judge did not have the authorization to order against madison. at the time it was a courageous act. >> but there is a case in article 3 that did not. >> later when he issued the subpoena to president jefferson, that was to profound physical consequences, but he stated again eloquently that it was the court's duty to obtain evidence if it was material to the trial. the notion that political consequences should stay the hand of the court is a notion that, again, speaking through marshall, the court rejected in cohens against virginia in the cherokee nation case where it was common knowledge that the state legislatures in virginia and georgia would interpose themselves and defy this court. and marshall uttered the words which i think are justly famous, the justice of the court can't reach out for jurisdiction it doesn't have. it has an obligation to exercise the jurisdiction it does have, whatever may be the political consequences of that act. the court's action in e

but it was brought up by the president in their petition for mandamu surk mandam mandamus. it raises the same questions that were raised in the matter. >> you notice the appeal from judge sirica's order was the first step taken to get to the court of appeals. >> while that was tending i gather the president's petition for mandamus was written the last step was that you filed a competition to bypass. >> right sir. >> that competition to bypass i gather to whatever case was pending in the court of appeals. >> that's correct sir. >> at that time the case pending was both the appeals from the judge and the president's competition. >> correct. >> you feel they are not two cases. >> no, sir. they raise the same questions. >> you could bring each up separately if you so chose. >> could have. yes, sir. >> seems to me they are two cases. >> but in as much as they present the same questions, it occurred to us that was appropriate to rely upon the jurisdiction as to both of them. >> i would suggest again that with respect to the mandamus action one of the parties isn't here in court r