Comments like this and your second one below, seem so low brow and childish. Account from 2011 and 1400 karma... keep up the good work there.
Of course they can argue it, that's what is happening. They are going to sue the government. Why? Because the SEC refuses to even have a conversation about things. They've been trying, for years, to do so. This isn't some random small company, this is a public company that the SEC should be supporting with better answers than just refusing to even meet.
Worse off, along this same thread, Gensler doesn't even have basic answers to questions that he was prepared for.
You appear to be very confused about the role the SEC plays in the industry. They're not a friendly, supportive legal advice service, they're law enforcement.
In any case, even if the SEC did give out legal advice, I don't believe it would form any type of legal precedent. Nothing stops the next administration from taking a different view.
If you're a large public company knowingly entering into a regulated industry where your activities are considered by everyone to be a "a bit of a legally grey area", then litigation is the entire ball game. Do the thing, wait to get prosecuted, hope you win.
Alternatively, do some lobbying, get the law changed how you want, then do the activity. Been happening for centuries. Easy as pie.
The U. S. Securities and Exchange Commission (SEC) has a three-part mission: Protect investors. Maintain fair, orderly, and efficient markets. Facilitate capital formation.
The main purposes of these laws can be reduced to two common-sense notions:
Companies offering securities for sale to the public must tell the truth about their business, the securities they are selling, and the risks involved in investing in those securities.
Those who sell and trade securities – brokers, dealers, and exchanges – must treat investors fairly and honestly.
Given that Gensler can't even say whether or not ETH is a security, it seems questionable whether the SEC even has a role here in the discussion.
Can't is not the same thing as won't. None of us (not even Congress) are entitled to the SEC chair's opinion on anything. The job of ruling whether or not ETH is a security is one for the judiciary, not the executive.
All of this is moot anyway. We know the SEC is bringing a case against coinbase. If that case lists ETH, then we know that the SEC thinks it's a security! Congressional testimony is a weird thing to obsess about, but each to their own.
If they're not able to argue why they're not breaking the law, then they should hire better lawyers.