Release of certain grand jury materials, the United States house of representatives. Justice,department of the District Court, so this court could have an opportunity to review the import questions of the day. The court denied that motion, even though it is clear that once the issues are disclosed, they cannot be undisclosed. The court denied that motion on of merit, butse as we explained, the District Court committed at least two serious errors of law in granting the request. Start with irreparable harm. It is the case that if we agree with the District Court, the irreparable harm is not that important. Freeman our intention in the case like judge griffith it would likely what significance is it . Freeman basically, in terms of the irreparable piece, the disclosure of grand jury information from a massive investigation concluded eight 25ths ago, there are only hours coming out of that proceeding there are 2800. Judge directly to this material. Mr. Freeman how does that relate . Yes, that is the point, on our second argument, which is the committee demonstrating that. Judge rogers i would suggest to with the special counsel , what the committee did with the statements during it seems to specify why certain material is necessary for the committee to it isd, and you have said not enough, repeatedly, but when the council was asked by the District Court, what test were you were lying on and what authority, counsel provided nothing. Mr. Freeman i think the test that ofge rogers the department justice. Mr. Freeman yes, your honor. As we explained very clearly in District Court does rogers yes, what that say . Mr. Freeman it shows you need to avoid specific injustice and other proceedings, that you have to show that the interests of secrecy outweigh the interests of disclosure and that the disclosure could be tailored to that particular injustice. Foundrogers the court that that test had been met. Why was the District Court clearly erroneous in its findings . Thatreeman they found there is no doubt that the District Court has reasons for the specific findings. Judge rogers the error Esther Freeman called the error is granting release of grand freeman rmation mr. The air isnt granting release of the grand jury information. Not whaters that is the court found. I found as tailored. Honor, it isyour that they asked for all grand jury reductions of the entire Mueller Report. Judge rogers no, they did not. You can say that, but they were quite clear. To the extent that they could surmise what might have been said and by whom to the grand jury. Your honor, there may be things in the Mueller Report that might bear on the series. Judge rogers actually, they were much more specific than that. Counsel, you have the records and they went down the list of witnesses who they thought could provide this necessary information. Mr. Freeman yes, your honor. The first witness they identified was don mcgahn. It turns out, he never went to the grand jury before. Counsel, i am reading the papers preview our reading the papers. It was not the only thing. The District Court made these unclear what i am the department is when, indeed,ired hought maybe i am missing expected to know who had testimony, their and specifically why that witness testimony was necessary. Mr. Freeman i dont think so, your honor. View is that how could they question where it is practically in secret, and they do not know. For them to say more than they did . Mr. Freeman that is exactly what was dismissed in abbott with the attorney general. The way this works in the judicial proceedings judge rogers in that case, it and youerent, counsel, know that. As a conceptual matter, where ,rand jury testimony is secret a person or entity seeking the information does not know who testified or specifically what they said, yet they know based on the special counsel us report that there were certain elements the special counsels report that there were special elements and deferred on making any finding of thought of criminal activity. Mr. Freeman right, and that is no different than any normal proceeding. To answer your question directly, how is a party to know that there is relevant grand jury testimony . The grand jury does not bind witnesses, so what often happens in these cases, in a criminal knowor a civil case, i that this person told me that they testify to the grand jury, with any factual question in the judicial proceeding, and i want to use that specific testimony for that particular judge a redacted review . I think they do. They agreed. The District Court got that information anyway. That is not how it is supposed to work. Judge griffith this is not an informal proceeding. The premise of the Mueller Report, for allegations of president ial misconduct, those were not to be taken out by the department of justice. They were to be taken up by the house of representatives. Now, why doesnt that change the nature of our inquiry here . Mr. Freeman i think it does change the nature of the inquiry and that we are not dealing with a judicial proceeding. Judge griffith we will get to that. We disagree with you. We think this applies here. We will get to that. But on that premise, it is different in terms of showing a particular need necessary, because the mueller was never going to identify the allegations of president ial misconduct. Mr. Freeman i do not think that is right at all, your honor at the point of the mueller was that, and the mueller made that clear up a judge griffith clear. Judge griffith that any issues of misconduct would be handled by congress and not the department of justice. Mr. Freeman the point of the Mueller Report judge griffith that is the history here. They engage in factfinding, and they pass it along to the house of representatives. Mr. Freeman the point im trying to make is that is what the mueller did. It included 186 patients pages with five reductions in that entire section, one of nsel said there was no need for. Judge griffith are you saying the mueller did not have the same with the russian interference . Andfreeman hundreds hundreds of pages, and there are a substantial number of reductions, as he would expect, but just because the house of representatives has all of this information upon them, it is incumbent upon them at incumbent on any litigant in a civil proceeding to come forward and say, ok. I have read the 180 six pages including the 185 pages 181 all, with no reductions at and that is relevant to my article is of impeachment my articles of impeachment. Nothing like that was shown in this case. People may have misstated information, which the Committee Identified, and that in terms of president ial information, the information that the Committee Identified what ite specific as to needed, although, as i have said not specific what they said to the grand jury. Mr. Freeman that is no different from the position of any litigant with grand jury secrecy, and that is the conundrum we always face. But to your point so the result of that analysis, that the District Court refused discretion in could with the use discretion . Mr. Freeman yes, and let me explain why. A regular criminal charge, and lets assume it is of historic proportions. Someone comes to the court and says, i am the defendant. Is testifyingess here, i dont know, but i want to make sure they did not testify inconsistently in front of the grand jury, and i want to make sure of that, because this is really important. That motion is denied. Judge rogers but if they say we have evidence from prosecution brought by the department that people have misstated things mr. Freeman that is those people. Not special review. Judge rogers but they have made the showing, havent they, that other people may have . Mr. Freeman sure. Michael cohen. Lying to congress. But they did not come and say, we believe we have testimony in front of us that is undermined by testimony of another witness. They set other people have lied to congress, and though we think we should get to everything, just to make sure no one else did. You would never accept that in a criminal case or a civil case. That is not normal. That is exactly the error. I think there is a criminal antitrust investigation and antitrust proceedings, and a party came in and said, well, we would like the same information in order to establish judge i have to take a step back and ask about our jurisdiction in this case. The court has an obligation to assure we have jurisdiction, so with the Supreme Court decision, the Supreme Court held they could not review and impeachment decision of the senate in the nixon case, and they also suggest it would be inappropriate for the court to assist or interfere with impeachment proceedings. If our involvement in this is interpreting the judicial proceeding part of that, to include impeachment, would that impermissibly involved this court . We have not made that argument. We have to make sure we have jurisdiction. Mr. Freeman this court would always have jurisdiction, but i do want to say we are not advancing that argument. The District Court with an injunction to the department of justice to issue grand jury information. We certainly have both standing and jurisdiction from that water , and we think that it is wrong, because i think the premise of the question that an impeachment proceeding in the legislative branch is a judicial proceeding in the sense of criminal judge griffith i think it is an interesting question. Could you address it, whether there is a jurisdictional bar of us looking at the impeachment proceeding . Mr. Freeman so, this issue is not addressed. But i think the answer to that question is there is not a jurisdictional bar. The local rules of the District Court to provide any person, newspaper, anybody can come in supposition of the grand jury, and ask for an order, and once the order is there, then, of course, is a right to seek review of that order. It does not go to the review. It goes to the District Court. Mr. Freeman i agree. And we have not challenged. The Washington Post and grow comes and asks. Thenot challenged Washington Post comes and asks. We have not challenged that. That changes. mr. Freeman the federal judiciary, lets put it this way. Concerns with the standings of the house of representatives to file civil actions against the executive , theh to raise arguments exercising of executive power. We think those are not article three cases. Many other cases pending in District Court and in the courts of appeal, but we do think there are article three problems with the house of representatives trying to create controversies in the federal court. We have not advance that argument here. I agree the court would decide, if it thinks there is a serious question there, and perhaps that is just another case for appeal. Now, i do want to finish the thought. I am not aware of any case, any case, in which the court has held that a need to see all relevant evidence or the complete story or to investigate fully from the District Court opinion. There has been a showing under a rule. There is just none. Now, the argument is that is basically not fair to them because how are we supposed to know with the impeachment proceeding, how should they know what to look for . But there is the premise about whether they are in the right rules at all. As explained, the judicial proceeding in the sense of rules is a proceeding in front of the court. Federal court, state, or local court. Judge rogers in your view then, for the committee to have a , they must bet able to tell the District Court that we want the grand jury because of witness a testified to 1, 2, and three, which the committee is in terms ofg determining whether or not to file charges. Is that the kind of showing . Mr. Freeman yes, they would have to say that we are unable of our own authority to obtain the information about 1, 2, and three. Judge rogers all right, there , but what i ams trying to understand is the thattments position is where a witness testifies before the grand jury, unless that theess reveals voluntarily nature of the testimony, either in interviews with the media or , then a party has no for an exception for to obtainroceedings an order from the District Court . We need to be clear. Mr. Freeman that is not the only way. Give me another way, if the witness does not voluntarily disclose. Mr. Freeman something in the Mueller Report saying they had in a particular document, which the committee is unable to obtain through its own investigative procedures. 1986. Urt decision in in that case, there was an sec situation where they filed a report, wanting grand jury material because we got this information, and this court said it was not good enough, but what might have been good enough is there was a couple of documents at the grand jury had which were illegible or that the committee could not otherwise obtain. That is how this works. Well, no, and judge griffiths question, as the as judge rao, proceedings for all of the reasons that the court has identified, and that is why i am trying to understand. The court is really concerned about a fishing expedition. You just cannot have everything. There is a burden on you to show toticular need, but understand the court saying it had to go so far to identify to 1, 2, and three, and to adding to my hypothetical, that the committee was unable to obtain that information by other normal discovery means. Ireeman so, lets just think we are in agreement. In the argument is there ought to be Something Different under the impeachment proceedings. Judge rogers i did not see anything in the history of the rule or anything you cited to me that goes quite as deep as you are requiring in an impeachment setting. In the impeachment setting, that is the premise i want to try to get to. You pointed it out, something particular. In that case, the court also said, the District Court, granted the release of grand jury information but said it can be used, no copies can be made, you have to return the information to the department of justice when it is done, and it can only be done for the professional recollection of witnesses during trial or deposition, and that was exercise. To impose conditions on the time, manner, or any other condition a District Court may impose on the release of grand jury information. Judge rogers the committee volunteered that it was going to discuss this. Counsel inonly with the same manner. And they suggested that was an acceptable way of proceeding. Mr. Freeman not proceeding at all. But, if i may, on this point, i do not think my friend will agree that a District Court can impose the kind of conditions on the house of representatives or the senate in the impeachment. That is a pretty fundamental judge rogers yes, it is common that is where i think your irreparable harm is. Mr. Freeman yes, and the irreparable harm, this court has held that once information crosses the Event Horizon, then no authority to control it. And that is why to get a stay in this case, but there is a fundament of question about the rules are meant to deal with a congressional proceeding at all. Judge griffith your argument, you are saying that increases the burden . Mr. Freeman no. It is like the particularized for whata mismatch Congress Needs in impeachment proceedings, and i think the reason is that we should not be in this bucket at all. Judge griffith well, we will get to it. I makingan the reason this point about constitutional limitations to judge griffith i see your point. It is not in that bucket. Mr. Freeman if the District Court allows the grand jury information to be released judge griffith if youre in that bucket, it is an increased burden on the house or committee to show particularized need, because you are not going to get it back. Mr. Freeman if you accept all of the thresholds, i do not, but if you did, then, yes, i would think that, because it is irreparable. But i think that again. The fact that the District Courts basic air in this case was approaching the question that it was sufficient to find that it acts as a court or exercises judicial power. I had questions about that. The question is whether this is a judicial proceeding within the rules. There are many statutes and rules that regulate trials and judicial proceedings and judgments and convictions, but no one would say adge rao ok, you say it is different question whether impeachment is a judicial power as opposed to the judicial proceedings . Mr. Freeman yes. Let me give you an example. This court said in 1980 with a maritime proceeding that it was and, judicial proceeding, we know from justice thomass that, for purposes of the 11th amendment, the proceeding of the federal maritime is with the District Court lawsuit, so there you have the argument for constitutional purposes, judicial proceeding and trial, but for rule 16 even though there are judgments, it is not a judicial proceeding. We know in the context of the rule what we are talking about is courts. There is only one other rule in the rules of criminal procedure. Initial proceeding. Rule 53. It has to do with broadcasting video from courtrooms. So what the federal rules of criminal procedure are talking but is procedures in front of courts, state and federal courts. Enroll one of the federal criminal procedure of a judge, defining judicial proceedings, defining judge. An argument with the court . They decide a question for this panel. I do not think that is right. Right. Riffith however you read it, the result is clear, right, that the impeachment proceedings materials they went at it different ways, whether there is authority or judicial proceedings. It is the gist of it. It would be extraordinary for us. No, i do not think that is right. Everyone understands that a prohibition of two witnesses. The court held there was no unmistakable right to have the information blocked from its release to congress. I think we start from the premise that the denial is not part of the opposite proposition. Judge griffith what was the reasoning . What did the judge say . Haldeman theeman the judge argued,the case was they said we are in general agreement with the District Court treatment of the issues. Judge rogers no need to elaborate. Mr. Freeman no need to elaborate on the general treatment of the issues, and the acknowledged that there was no meaningful analysis, it was pointed out that the underlying District Court proceeding in itself is ambiguous and rationale. Judge rogers that sense that if we look at the decision by the court, youre not going to find it, but that decision says we sgree with judge circa analysis and no need to elaborate. Judge siricas analysis and no need to elaborate. Mr. Freeman and we are denying. On the narrative of the question, i agree that the judicial proceedings in front of you i just do not think this is an a porton question that no court of appeals has ever issued a decision, and i think judge rogers so you say clearly held, and i thought that adverb was interesting, because you put it everywhere. No court has clearly held. The adverb. That was meant to refer to the standard. Judge rogers but you say that no court has clearly held, and well, we interpreted it. Mr. Freeman i agree. What was done was characterize the basis for denial in haldeman , and i think that is just not on the merits. Think we are looking at just a couple of sentences here. We are all looking at the same information, but my guess is, and just my guess, is that the issue of that importance, briefly decided in three days, same day as oral arguments judge griffith so clear. It could have been, but my point is look at the order. A few paragraphs, and it means no law at all. The court isis trying not to establish circuit precedents. Quickly. Ffith judge rao what was the importance . To knowman it is hard from the court order. Judge rao they have that. Mr. Freeman yes, they do just have that. And this is the very first case, to my knowledge, this case, the very first case in which this is squarely presented in this look at and if you just the text of the rules and look at the use of language, you ask yourself whether it would be constitutional for the rule itself to operate in the manner that the house suggests, because under the text of the rule, with what they can impose constitutional principles with consequences. The District Court could say this could only be for impeachment or that it has to go back to the department of justice after. Judge rao can we go back to my question on jurisdiction . Mr. Freeman i think it may. I think it may in the sense that we are basically asking the same question. We are saying there is a fundamental incongruity between rule 60 and its ordinary operation in federal criminal employing that rule for the purpose for which it is sought to be employed here, i think the answer to that is to conclude that on ordinary textual grounds, you apply the is not aules that it judicial proceeding at all, but i think you conclude that you may have more fundament of questions. Judge rogers do you give no credence to when rule 60 was that had been outstanding . Mr. Freeman it was adopted in 1946. The committee noted it was meant to codify prior practice of the use of grand jury material in civil cases. Cited were for information gathered a criminal grand jurys, and a 1977, enacted rulectly 16. There were reports that impeachment, a judicial proceeding exception. It is the problem of a criminal grand jury with ordinary american law, and civil litigants always want access to it. Of course, they do. Is about thatard power. How civil litigants or others outside the terms of the criminal rule get access to accumulate grand jury evidence for court proceedings. Grand jurys , the impeachment process has no way of getting that information because it comes to the District Court, the District Court will say, well, the impeachment proceedings, and i have no Inherent Authority with what the department determines tutor material over, and therefore, the grand jury wishes to voluntarily do that, testimony to a committee. There is no way for congress to get that information . Mr. Freeman under the present text yes, and i want to make a point though. Rule 16 has no constitutional dimension. Congress has directly amended it. Congress could amended it to provide this. You back up, and you ask yourself, this is in the abstract. How would congress go about providing access to impeachment . It would not put it under judicial proceeding. It also would require to show particular judge rogers we do not know how congress would act in this issue. As you say, it could. Mr. Freeman of course, we do not. That would be incumbent to do, but if congress would enact rules for its own benefit, it likely would not put it in the position for the court policing that, so rule 16 allows for one federal grand jury to give information to another federal grand jury without going through that. 1985, such an exception would be infringeional or would on the control of the grand jury material . Mr. Freeman i am not aware if that is the case, your honor. Judge rao 1985. Mr. Freeman i think that the reasons why one might ask about the constitutional scope of grand jury information under rule 60 is what we were just discussing about whether we ought to be in this bucket at all or whether the District Courts should be in this business at all. My point is if there was to be that rationale, the constitutionality of the application of rule 16 today, was a very case. Judge rao yes, to amend the rule in the way that the department has a constitutional problem. I amreeman all suggesting, as the court knows, for givings provided information to congress. You would think at least of congress thought this was sensible to the impeachment power that they would institute their basic legislative authority and do that, and we would not be here today speculate about whether it is a judicial proceeding or judge griffith they have never needed to do that before, have they . Mr. Freeman it has come up many times where this rule has been needed to be addressed to address basic Public Policy questions. The example that comes to mind is 2001 after the 9 11 attacks, it did not allow the department of justice judge griffith in terms of impeachment, why did not the executive approach this before . Mr. Freeman it is true we did not oppose it. I think the most recent was in 9 judge griffith the president ial impeachment. Mr. Freeman judicial impeachment. I want to explain why, because i think this is important. As the court is aware, in the light of cases, the department for nearly a decade has been arguing that rule 60 does not have you have to read the text according to the text. I have been arguing that case myself personally for a decade. With the supervision of my former supervisor. I have been arguing the case for a decade, and arguing in those cases, as we look at the materials, rule 16 is not a provision. It does not allow a disclosure of grand jury information for any purpose that seems generally consistent with the rule. You have to read it. And when this question arose, we realized we had been in the impeachment proceedings on an assumption, so we have corrected that assumption, but i think it is telling and very consistent with the principal we have an argument for a decade in Inherent Authority in cases that you have to read it as a statute, and when you do, providing the regular interpretation, you come to the conclusion that impeachment are just not a judicial receipting in terms of rule 16. Thank you. Thank you. S counsel for the committee . Counsel i am the general counsel for the house of representatives, douglas letter, and with me are others and various representatives from the House Judiciary Committee and Georgetown University law center, the constitutional advocate protection. If you give me 10 seconds for a personal note, please. And i retired from the Justice Department after 40 years, i was replaced by an attorney in part because of my very strong recommendation, and that, mr. Freeman, my friend, and i think one of the finest attorneys i have ever met, and i am honored to be arguing at the same lectern as him today. Question of time. [laughter] mr. Letter and after this is over, we will shake hands and hug. If i may, i think i should start question,udge raos because it goes to jurisdiction. Judge rao asked i think the problem is that there is no that this is governed by the nixon case. Remember, the Supreme Court held and, by the way, i was an attorney on that case the problem is the Supreme Court held that it was a political shouldn, how the senate go about carrying out impeachment proceedings, that, actually, it just dawned on me, judge griffith, the set of legal counsel, i do not recall, ok. Probablyffith you know this much better than i do. Judge a very small town. Mr. Letter isnt it . So the Supreme Court said this is a political question about how the senate is to carry out its function. That any application of impeachment is a political question. We have a major constitutional problem here, because we have a that a courts order is needed, but, apparently, under the argument that it is apical question would be that congress or the house cannot seek or get such an order from a court, and, therefore, you have the, i think we would all agree, the absurd situation where grand jury material would be available to, for instance, newspapers and other private litigants, etc. , bar examiners, but because of the poodle question doctrine, it could not under any circumstance be available because of the political question doctrine, it could not under any circumstance be available to congress, and as mr. Freeman was suggesting, because it would be a question if congress ever were to go to court to get the material, so it cannot possibly be that it would be a political question when congress is required to go to a court for a court order as is true here, and, by the way, i would just note that in the walter the nixon case, judge order, so ited an would be very strange if the court had done that. To note rightnted off, before i start, to say that clearly the best argument that i chief judges howells opinion, where he addressed the various issues. Thatot just make findings were unsupported, etc. She went into considerable things. I cannot urge you strongly enough. Please read her opinion. Isfriend, mr. Freeman, talking about the statute, but i want to make sure something is not forgotten here, which is that it was passed originally by congress. It is part of the rules of criminal procedure. Canefore, the Supreme Court change 60 any time it wishes, and, in fact, the Supreme Court has changed rule 60. So mr. Freeman is suggesting that congress could as a statute change it. That is true. But the Supreme Court could then change it and overrule statutes. So we would be in this very rule onsituation of a criminal procedure that is normally done by the Supreme Court interfering with the Impeachment Authority of both the house and the senate, and, by the way, i do want to emphasize, if the Justice Departments argument is correct, this is not a judicial proceeding, it is not just the house that cannot get the grand jury materials. The senate as it is carrying out the trial, and i emphasize that word, because, boy, does that seem like a judicial proceeding, chief judge rehnquist, for example, told the senators, you are not jurors. You are a court. Esther freeman obviously thinks that chief judge rehnquist did not know what he was talking about, even though he wrote about impeachment. Ok. Thatcourt has also held they are judicial proceedings. I have to say, i am not fully understanding what anybody would think this is different. Will quote very quickly, in any event, as did judge mckinnon in his separate opinion, within the rule six exception for judicial proceedings. It is a footnote. Judge howell asked me about that. It is a footnote. I pointed out that to my if theyfootnotes did not, that changes the Court Precedent about what haldeman held, so we needed to reach that point, and, therefore, this is a statement that the court makes in its opinion in order to help explain its dominion and give its rationale. I do not know any definition that says that is not. So that is, to my mind, clear. Also, one preliminary thing i appreciated, and i think judge rogers picked up on this. My friend said the government, which he is obviously used to saying. I work for the government, 1000 representatives, the first branch, the Justice Department, and the house of representatives , both of government, but we are the first branch. We get to this major departure here. [laughter] mr. Letter i am told you would take on the mantle of the senate when we complete this. One of the things that is so key to judge howells opinion is the reasons for grand jury secrecy in itssons why the house request is entitled to the grand jury material here is there is almost nothing here on the side of tensioning to maintain grand jury secrecy. The grand jury proceedings are over. Freeman mentioned other proceedings. Other proceedings, as we know, one case just finished. In addition, by the way, the information in the report that is key about the proceedings, attorney general barr allowed the house to see that material. I saw it. Members of the Judiciary Committee and members of the Intelligence Committee saw it, because we were allowed to look at the material involving other prevented and redacted that really does not wash here. The grand jury is done. We have moved onto this totally different page now. This by the house of representatives is immense. Judge griffith what is the rule, mr. Letter . How do we apply this proceeding . What is the rule that would have us mr. Letter i am not going to get up here and argue against a strong showing, but i think the best way to put it, your honor, is that it has to be influenced by the fact that it is an impeachment proceeding, and that goes into the showing, the strength, of the need. The house is right now doing it has affith particular rise need, right . Mr. Letter it does. Judge griffith what is the particularized need . Mr. Letter judge howell wrote about this. Whoave at least two people have already been convicted of lying to congress and lying about this, and what are they lying about . They are lying about things that go directly to the Mueller Report. Lie . Was thedent president not truthful in his responses to the Mueller Investigation . I believe if i am correct that the special counsel said that president has not been untruthful in some of his answers. So, in addition judge griffith i get it. I want a rule. , i impeachment inquiry believe, is something special. What is the rule . In future cases, what would be the showing that the legislative branch would need to get the grand jury information . Mr. Letter your honor, that it, it means is an impeachment proceeding, it ,s in the governments interest particularly strong, and obviously a key point is is it relevant, and it seems part of has the government has the house shown that this would go to the issue shouldpresident the president be impeached . Does it go to the president s to serve asbility the president of the United States, because that is what the impeachment proceeding is about, and, by the way, that is why we hope the court would rule very expeditiously, because we are not just engaged in normal investigative oversight, adulation, etc. The house is trying to determine whether the current president should remain in office area if he should not remain in office, that is something that should happen as soon as possible, because it means that he is undermining the interests and the National Security of the United States, so this is states. This is something unbelievably serious and is happening right now, very fast. Judge griffith what does the Mueller Report have to do with the proceedings right now . dont believe everything you read in the press. The impeachment inquiry is in part focusing on what are called the ukraine matter, but it is also and this is what i said to chief judge howell, is looking at the Mueller Report, carry outesident obstruction of justice, and related possible bad acts . Two of thert Mueller Report, it goes into that very thing. As mr. Mueller indicated, there was plenty of evidence that he did abstract justice, but he said, i cant make us determination. And it relates to the first part both volumes, because in order to determine if the president obstructed justice, you need to look at, what did he do, what did he know of the election interference by the russians . What did he know about wikileaks . And there is significant evidence, it comes out, from roger stone, and also, a key point i want to emphasize, one of the reductions i have to be careful to not disclose anything that is not public one of the redactions refers to a manner for Paul Manafort and his testimony. Is,nother issue here possibly the president s inconsistent with things that were in the grand jury transcript involving Paul Manafort. Judge griffith why not a redaction by redaction preview . Were not . Mr. Letter i dont think there is any need to go through the reductions . Judge griffith would it take a whole day to do that . Mr. Letter i think it would take longer. We certainly could do that. I dont think that the what . Rogers to do mr. Letter to go redaction by redaction. One of the problems is, we still dont know what is in the actual grand jury transcript. Judge rogers but judge howell she tolde had unredactedy general, dust she received unredacted statements of what was presented to the grand jury, that she had read that, and she rolled in light of what she had thus she in light of ruled what you had read. I just wonder, i understand the committee has a different position on what would be , than youo show related to judge griffith now, about a full and fair inquiry, public trust in the fact that requiresry the committee have access to all the evidence that is relevant to the inquiry. But it is not that if not for the committee to come before the District Court and say, we are conducting an impeachment inquiry into whether the president should continue to serve as president , and therefore, we need to Read Everything that might be relevant to that inquiry. I might understand the committee has taken that broad a position . Mr. Letter i am happy to be corrected. That is what the 11th circuit held. I am not sure what the test depends on. I am not sure what the test would be over all. So, judge griffith, my answer is not in definitive answer, but in this instance, we have shown that judge howell accepted. Judge rogers so it is a casebycase situation . Mr. Letter that would be a clear part of it, yes, your honor. Again, it would seem that because of the impeachment inquiry, whether it is a judge or cabinet officer that the president should remain in it is, isey aspect of the evidence we are looking at is it relevant to the impeachment proceeding. Judge rao i want to focus on the irreparable harm law which you have in this motion. It seems, as your colleague suggests, that once of the materials are released, it is gone. That an extremely strong case for irreparable harm in this context . Mr. Letter it is definitely a good argument, i shall not pretend it is not, but we have answers. The Judiciary Committee has set up procedures for protection of grand jury material. For example, the Committee Received a roadmap, and to this day, it still has not been disclosed by the Judiciary Committee. Judge griffith recent history that these are not the norms that were in place then. Mr. Letter that could be. The Judiciary Committee has set up procedures to limit access to the material, it would be the members of the two committees. Udge griffith the majority of the committee decided to release, what would it be then . Mr. Letter as congress is set up, the majority converted to release, then it will be released. That is correct. Rao that is a hard determination to mr. Letter the Judiciary Committee and the Intelligence Committee could look at the material and decide that it is so important and so essential that the people of the United States need to have access to it as part of a impeachment proceedings. That is true. Judge rao the irreparable harm showing is there. Then, there is substantial and serious legal questions going to merit. Isnt that sufficient under the courts precedent for granting a stay . Mr. Letter if that were true, it would be. But it is not true. We have finding circuit precedent, and beyond that, as we have overwhelming arguments, a whole history of practices the Justice Department has to my knowledge agreed until now. Judge griffith as your friend , when the judge in the District Court asked you about one particular matter, he said, yes, you are right. Mr. Letter right, that was one matter as to mr. Flynn. If the judgment through and looked at other matters, and said griffith did justice give you a problem . You suggest that there need to the action. Y on turns out they did not need to be redacted. Wouldnt we have more comfort if we needed that sort of inquiry to take place more widely, then just the one action . Mr. Letter i dont think so, because judge howell obviously looked and she raised that. Other than that, using, as judge rogers has pointed out, using what the justice apartment has admitted to her, she had an understanding of what is in understanding that there had already been proven to theat related in part asent, and as she provided in the impeachment proceeding, there is a need for the committee to have this material. Theor irreparable injury, grand jury secrecy specifically pursuant to the rule is breached all the time. This is not some odd thing that almost never happens. This is something that the rule specifically. Judge rao do you say that there is no assumption of grand jury secrecy . Mr. Letter the rule provides i am not sure the it would be narrowly construed. The exceptions are broad and broadly up. Broadly broadly applied. It is perfectly allowed under rule. I would like to say, in addition, if irreparable injury proceedingto todays , there is a very clear way to solve that. This court should simply look at the marriage of the decision and issue a final ruling of the court look at the merits of the decision and issue a final ruling of the court. The petitioners were raising very serious claims of they weree injury, detained as u. S. Citizens in iraq. They said, if we are released, we will be killed. And yet, the executive branch wants to release us. The Supreme Court said, ok. We will go straight to the merits. That the actual claims were wrong, they were not recognizable in the court. So the nature of irreparable irrelevantmade because the Supreme Court made a final decision on the merits. Judge rogers let us be clear about irreparable injury. Initially, the department was focusing on the fact that the court denied a, stay then it mentioned the fact that its own right to appeal might be mooted. Thattoday, we are told there are hundreds of investigations out there, but no response to my question. Pendingparticular investigations relate to redacted materials that the committee is seeking . My question is, is there any in irreparable harm, to be specific about this, as opposed to a general statement that at any time you release grand jury testimony, there is irreparable harm . The Supreme Court looked at one of the purposes of secrecy like witness intimidation, and she said, there was none of that here. And no basis to assume it would occur. Thatat the normal concerns underlined the reasons for the grand jury secrecy did not apply. Mr. Letter i am so glad you brought this up. Remember, a separate reason why materialarr redacted from the reports was to protect other investigations. That is different from the grand jury one. Then, general barr allowed the Judiciary Committee, the Intelligence Committee, the speaker of the house, and me to look at those. O we had already seen that he has already said, go ahead, look at that. We did that. My memory is that there is only one instance where there is an overlap between applying of rule e . This is a point. General barr was not saying, we need to have absolute protection of these other proceedings. He dealt with that separately and he has already reached it in a way that we are already asking for here, to get the grand jury material in the same way that general barr allowed us to seek the material involving other proceedings to be protected. Judge rogers what is left . Mr. Letter what is left appears to be some discussions, particularly, volume one, all sorts of citations in volume one o various statements that are obviously using grand jury material. Inition and volume on, addition to volume one, there are various areas where there are reductions. Again, remember, i think this is getting lost, judge howell ordered a very carefully staged. Isclosure the Judiciary Committee did not just ask for anything, they asked for a limited amount of grand jury material. The first items they asked for work grand jury material reductions, and underlying that talk about those. That is all judge howell has ordered disclosed at this point. She said, if after that, you want to come back for more, i will consider that. So, for now, it is actually a very limited amount that she has required be disclosed in a limited way. Judge griffith you indicated the committee would be willing to compromise involving in ca mara review . Mr. Letter yes, your honor. Obviously, we would prefer judge howells order be enforced. We think it is 100 correct. However, if your honors have concerns, and you are not just willing to make a decision, we are willing to have that the court would maintain control of the documents, and they would be camaraailable in an inb basis to staff. We are trying very hard to carry out an extremely Important Role of the house. Judge griffith what do you mean be available to staff . I thought this would be part of the need argument . Mr. Letter if you agree on the irreparable injury, saying, if all sorts of members of congress because the judiciary and Intel Committee are very big combined, we said, if the court , thed to limit it initial disclosure, to staff from the judiciary and Intelligence Committee judge griffith so that you can make the argument for particularized need mr. Letter i think i would have to be included in that for that reason. Judge griffith so you are going to go back to judge howell saying, ok, staff has looked at this, and the following thing should be disclosed further. Mr. Letter we are trying very hard. Judge griffith not just you. Mr. Letter the problem is that the staff here are the ones with whatderable expertise on these grand jury materials might show about whether or not the what he provided as being answers to robert mueller. Judge griffith remind me, what was the discussion at the District Court about the in camera review . Mr. Letter your honors rao it is a type of negotiation that takes place without the intervention of a federal court, right, the backandforth between congress and the president over access to information . Mr. Letter absolutely. What is the accommodation here . Is that not only are we not not goingeady to give you any, we will not give it to you because we would be violating the law. That is their position. It is an absolutist position. They said, bylaw, you cannot have this grand jury material. Judge rao you have already seen it . Mr. Letter not the grand jury material. Judge rao the unredacted version of the Mueller Report . Mr. Letter we asked for it, we asked that i could see it, that the Committee Members could see it, and we were told, no. And i am not surprised, given their position. Their new position is so inconsistent with many decades of practice. Their position is they cant show it, and, i believe rule 6 e is punishable by contempt. So there is no accommodation here, your honor. We have asked and asked, and asked. The accommodation we were offered was, we will give you other materials. Etc. Show you 302s, fbi 302s. That is a farce. s have never been given 302 for mr. Mcgann. We know that we were given none. 302s we were given had heavy reductions. When we asked why, we were not given an answer. And recently, because of a letter mr. Mulvaney sent to the house saying, we are not cooperating anymore, i believe the have the absolutely nothing. If i may, i would just like to consult one minute with my colleague, if your honors would give me a moment. I apologize, your honor. Just wanted to make absolutely e, but we continue to get we continue to get nothing. There is no accommodation being done here. Again, they are quite worried about, i. S. U, being placed in contempt. Two, judge griffith, absolutely, yes. Office, connected to litigation counsel for the committees, the intelligence and the Judiciary Committee, so that we could the initial situation. Judge griffith [indiscernible] again, in the interest of possibly being placed in contempt. The Paul Manafort situation shows very clearly that there is theence, very sadly, that president might have provided untruthful answers, and therefore, is obviously a key part of a possible impeachment inquiry. Judge rogers and you can prove it . Uh, give me one second to look at my notes, please thank you so much, your honors. Judge rogers counsel for the department . Mr. Freeman let me start with a point about access the District Court had unredacted versions of the report. The District Court did not have volume one of the report. The District Court did not see any of that information. Oppose ex parte access to the District Court. Declarationde one that we went through the five redactions in volume two. Judge rogers that is a reference to the x judiciary theement to the attorney extra officio statements to the attorney general . Statements from the attorney general stating what was in the , that has testimony been redacted . Mr. Freeman she did not have access to anything. Judge rogers then she looked at the documents the attorney general had submitted . Mr. Freeman i believe that is a reference to the declaration, the redaction in the public records that walks through the bases on the five redactions in volume two. Judge rogers but nothing as to volume one . Mr. Freeman no. The District Court sided in their opinion that they would need to investigate fully the trump tar incident, there was not a finding based on having seen that this information, she did not have this information in front of them. Next thing i want to address is judge griffiths question about the export so offer the x partake offer to look the x parte access to information, but there was never have it,ent that staff partly for the reasons we discussed before, that once that information goes across the Event Horizon to congress, there is no way the court can judge rogers opinion says that the attorney general has always revealed to the committee redacted information regarding any investigation that the grand reason that the for grand jury secrecy is intimidation of witnesses. Mr. Freeman if i may that is right. Judge rogers that is not right. It is what they say. Judge rogers so i am giving you the option to tell me, what more is involved. Mr. Freeman one is to ensure candor of witnesses to the grand jury. I appreciate that, but i dont think it was very persuasive. Judge rogers i understand you may not agree with it. The question, was she erroneous in making that finding . Do you think it is a question of law . Mr. Freeman i do think it is a question of law. She said there is no reason for grand jury secrecy, so they can have all the evidence. Judge rogers know, in the context that she has been dealing with, i mean, this is not you can look at anything you want. That is what i am trying to get across. This is not a fishing expedition. Given the Mueller Report, and the specifications come at i understand you say were not enough, but there was specifications as to why the need. Mr. Freeman i think the fact that there was an extremely detailed opinion against the disclosure rather than in favor, shows that they had an interest look at the words used investigate fully, complete the story i think we just saw that. When my friend was standing here , you asked him, what are the standards . He said, i could not tell you the standards of the impeachment proceedings. He said it would have to be a casebycase analysis, not a fishing expedition. Judge griffith how would the House Judiciary Committee make of the showing of particular artist need without being able to see the unredacted material . Mr. Freeman the same way that litigants generally do, for i am notthey had privy to this information, but i understand that many witnesses testified in closed sessions. That they said something to the grand jury. And another political witness said something inconsistent with that, they could say, we have two things. Judge rogers how would they know it is inconsistent . Mr. Freeman this is exactly the point of that. Judge rogers that is your point. If the witnesses voluntarily indicate somehow that the committee can say, well, this is mr. Freeman if you look at douglas oil, the case talks about, what is particularized need . It is to impeach testimony at trial and to refresh the recollection of witnesses at trial. It is not to use grand jury information to prove some of law. That is the normal way this works. The basic problem is what they are saying they want this information, to provethe basic y are saying they judge rogers the interesting thing to me is, why wouldnt the department favor giving this arguably,n, because it will show the president is saying he did nothing wrong . Is not going to return a charge where the evidence would not support it that. Is the standard constitutional requirement. Mr. Freeman and normally, you ave to show that there is basis of rule 6 e to return the information. My friend is correct, it is enforceable by contempt of court. It circles back to my original point, the order that the District Court issued that you could hold the house or the senate in contempt of court for. Ot following judge rao i am interested in your thoughts about mr. Letter said, if we are focused on a republican injuries, we should move straight to the merits. I am wondering about what you think of his suggestion . Mr. Freeman i agree that this court has that authority. Have ever seen in 15 years of practice that the court decide the merits of an up deal on the motion. Motio you have two fundamental and important questions on the rule of law. [indiscernible] we do think the court ought to stay the disclosure order pending the resolution of that proceeding. Is,last thing i would note my friend had a colloquy with judge rogers regarding irreparable injury. Judge rogers said, what is the specific injury to a particular pending procedure . Just wants to push back on that. That is not how grand jury secrecy, irreparable harm, normally works. The District Court would have to publish all the miller information in a newspaper, we would not have to show you that there is a proceeding that will be jeopardized by the order. Judge rogers so it is enough for you to just say it irreparable harm . Mr. Freeman there is a reason we protect grand juries. Judge rogers you have given me three reasons. Another,an there is what the grand jury does is investigate, and sometimes it includes people who should not be indicted. The point of secrecy is to protect the rights of the innocent. I have not seen the grand jury information and i cannot present to you what it concludes, that we do not require the devil does of information in order to determined that there be no irreparable injury that. Is an important question. I submit that in any regular circumstances, were the court to grant a stay, we ask that you do so. Judge rogers thank you. Announcer house Intelligence Committee chairman adam schiff released procedures for the committees first public. Mpeachment inquiry he outlined three questions for the committee to seek answers. First, did President Trump asking for an government to investigate an opponent in the 2020 president ial election . The second, did he seek to have the Ukrainian Government advance the president s personal political interests in exchange for military aid, or invitation to the white house . And the third question, did mr. Trump or his Administration Try to withhold information from congress or the American People conduct . To read the full document, go to our website, cspan. Org impeachment. On cspan, the house returns at 10 00 a. M. Eastern for general speeches, with noon. Ative business at on the agenda, a shortterm spending bill to fund the federal government through most of december. On cspan two, the senate is back as 10 00 a. M. Eastern, to consider judicial nominations for the 11th Circuit Court of a yields. On cspan3, the Judiciary Committee continues with hearings. The first includes testimony to jennifer williams, an aide to Vice President pence, and testimony from kono vineland, who serves on the security council. Later in the day, the Committee Hears additional testimony from tim morrison, also part of the kurtnal security also, and volker, former special envoy to the ukraine. Our cspan campaign 2020 bus team is traveling across the country, visiting key battleground states in the 2020 president ial race, asking voters what issues they want president ial candidates to address during the campaign. I would like the candidates to focus on what is good for the people and put the people of our country ahead of party and politics. One thing that is very important to average americans is the economy and job creation. I am hoping there will be a real focus on that. And i believe that the candidates of 2020 should recognize the Massive Health care disparity that we have within the whole nation, access to health care, access to Proper Health quality. I believe there should be a higher focus on climate change. I feel as if, no matter who you are, it is something that affects us no matter where you live. Most recently, i have noticed that there was not an emphasis on climate change, and people debating if scientists actually are correct. But we never question earthquakes, we never question hurricanes, but we want to question climate change. The reason i believe for that, is we dont see the immediate effects. We are pushing it on to our children. I want to see more of this in the president ial election. Announcer voices from the campaign trail, part of cspans battleground states tour. Democratic representative jim himes recently held a town hall meeting with constituents in darien, connecticut. He talked about the impeachment inquiry, health care access, and climate change, among other topics. This occurred prior to the start of the public impeachment hearing by the house Intelligence Committee. [applause] thank you. Thank you. Jamie, thank you very much for that kind introduction and for your terrific leadership in the town of darien, thank you. In the door,alked i saw your state. Thank you for being here. [applause] most important, i want to thank all of you for taking time out of your saturday to have this conversation. This is your hour and a half. I will leave the vast bulk of th