Transcripts For CSPAN2 Oral Argument On Request To Unseal Mueller Investigation Grand Jury... 20240713

Weve explained in our motion the District Court committed at least two serious errors of law in granting the request. Start with the it is the case, however, that we agreed with the District Court on the irreparable harm is not that important. Our contention in this case we thought that we would like to [inaudible] i agree with you that we have to show that dont agree we dont have that that the disclosure of grand jury information from a massive criminal investigation that concluded only eight months ago, there are only 25 pending criminal matters that come out of that proceedings. There are 2800 criminal grand jury subpoenas in connection directly to the material thats exactly the yes, and thats the point on our second argument that thats the committees burden to demonstrate that. Well, i suggest that the courts findings plus special counsel supports volume two, plus, what the said in the supplemental statements during oral arguments seems to specify why it thinks certain material is necessary for the committee to proceed and its not enough repeatedly, but when counsel was asked by the District Court what test are you relying on and what Authority Counsel provided. Well, i think the test for the department of justice. Yes, your honor. The test that were relying on as we explained very clearly to the District Court is the test in douglas oil what does douglas oil say . You have to show a need to show in another judicial proceeding that you have to show that the interests are outweighed by the interests in disclosure and that it can be tailored to that particular and this court found that that test hadnt been met, now why why was the District Court with the finding. The District Court found that the decision in 1987 and the Supreme Court found in douglas oil theres no doubt the District Court a reason for fact specific findings. And what specifically is the error . The error is granting release of grand jury information on the premise that advocate needs all relevant information. Thats not what the District Court found. The District Court found in terms of the committees request as tailored, that it had met its burden. Your honor, the tailoring here is only that they have all grand jury redactions in the entire Mueller Report you keep saying that, but thats not what they asked for specifically. They were quite clear as to what they were seeking to the extent they could surmise what might have been said and by whom to the grand jury. What they said it was we think that this grand jury information in the Mueller Report that might bear on the theories that we would put forth for impeachment. Actually they were much more specific than that. Counsel, youre more familiar with the records than i am. Your honor, yes, and that is what they said. They said the first submission was and went down the list of witnesses who they thought could provide this necessary information. Yes, your honor, the first witness they identified was don mcgahn and turns out he did not testify in front of the grand jury at all. Hes not the only one. And counsel, i mean im reading the papers, youre reading the papers, and its not the only thing. In the douglas oil case, the District Court made these findings. Im unclear what standards the department is saying douglas oil or other required when indeed i thought maybe [inaudible] with respect who would testify and the testimony and therefore be able to relate specifically why that witnesss testimony was necessary. So i dont think so, your honor. The departments submission all along. I see what youre saying id like to address the just tell me practically its secret and they dont know it how can they say more than they did . Thats exactly the proposition rejected in abbott and associates for the attorney general of california made exactly that point. Look the way this works in judicial proceedings, right in that case, it was different, counsel, and now that. Im just trying to understand as a conceptual matter where grand jury testimony is secret. Yes. A person or entity seeking the information doesnt know who testified or specifically what they said, yet, they know from the special counsels report that there were certain elements that were unavailable and its deferred on making any specific finding involving criminal activity. And thats no different than how it works in any normal proceeding. To answer the question directly, how is the party to know theres relevant grand jury testimony. First, grand jury does not bind witnesses. What often happens in a criminal case, a civil case, the parties come in and they say well, i know that this person tells me they testified on the grand jury and now theres testimony to the judicial proceeding and i want to use that specific testimony to counter act that a redaction, by redaction review . Yes, i think they have to, your honor, the first time in a long time that they pressed counsel on that, and the District Court gave that information anyway. Thats not how its supposed to work. Youve used the word normal proceeding. This isnt a normal proceeding. The premise of the Mueller Report for allegations of president ial misconduct, those were not to be taken up by the department of justice. They were taken up by the house of representatives. Now why doesnt that change the nature of our inquiry here . It does seem to be in the inquiry, were not dealing with a judicial proceeding. But well get to that separately. Lets imagine we disagree with you, and imagine we have minds here and well get to that, but on that premise, given this difference in determines of t the necessary because the Mueller Report says never identify the allegations of president ial misconvict. I dont think thats right at all, your honor. The Mueller Report made that clear. Were. And the Mueller Report that any allegations of president ial misconduct would be handled by the political branches and not by by congress and not by the department of justice. Any legal ramifications, any legal consequences, but the point of the Mueller Report and thats the sort of history here, right, the independent counsel, the special counsel, they create fact finding, they engage in fact finding and they pass it along to the house of representatives. And the point is that what the Mueller Report did. On the obstruction of justice questions detailed only five redactions in that entire section, the one of which [inaudible] are you suggesting that the Mueller Report didnt have the russian interference . Hundreds and hundreds of pages and redactions as you would expect. But because they have the information in front of them its incumbent upon any litigants to come forward if thats the hypothesis, ive read the 186 pages including 181 pages with no redactions whatsoever and im unable to establish this one particular point and that point is relevant to my cause of action and i need that information for that reason and nothing like that was shown in this case. People may have misstated information which the Committee Identified and that in terms of president ial motivation the information that the Committee Identified was quite specific, as to what it needed, although as ive said and discussed didnt know who testified or specifically what they said to the grand jury. On that point, ill just thats no different than the position of any litigant of mine respect to the order. Thats the point of and thats the conundrum always face under rule 15, but your point so again, if the results of that analysis that the District Court abused its discretion is ruling that it could under the ru rule, with exception to the judicial proceedings, arguing on that issue and let me explain why. In a regular criminal trial and lets assume a big criminal trial, historic proportions, someone comes to this court and says im the defendant. My liberty is at stake, i think a witness who is testifying here, i dont know, but i want to make sure they didnt testify inconsistentlily in front of the grand jury and no i want to make sure this is really important. That motion is denied under rule 15. If they say we have evidence fr from blocked by the department that people have misstated things. As to those people, then have the particular right, but. But they have made the showing, havent they, that other people may have. Sure, i mean, there was Michael Cohen of lying to congress and they didnt come in and say we believe we have testimony in front of us, thats undermined pie another witness. What hes said other people have lied to congress so we think you should get together and make sure no one else is. You would never accept that from a witness, from a litigant in a criminal case or civil case, thats not how it works and thats exactly the error that the Supreme Court found inform douglas oil. Criminal antitrust investigation, grand jury proceeding and a party came in and said wed like the same information in order to a civil cause action. Id like to take a step back and ask about our jurisdiction in this case. Yes. So, raised, and we have an obligation to make sure that we have jurisdiction. And in nixon they could not look at impeachment of the senate and suggest it would be inappropriate for the court to assess or interfere with impeachment proceedings. So, is our involvement in this, is interpreting 6e, judicial proceeding wrong with that to include impeachment . Would that imper mmissibleimper involve this court . We have not made that argument inaudible make sure we have jurisdiction. But this court would always have jurisdiction to decide and District Court jurisdiction. Were not advancing at that argument. The District Court issued an injunction to the department of justice to issue to reveal grand jury information from the house of representatives for five days and we have standing and jurisdiction and we think that its wrong because we dont think i think your honors question, that an impeachment proceedings in the Legislation Branch is a judicial proceedings, rule i think its an interesting question, could you address it whether theres a jurisdictional bar to us looking at impeachment proceedings . So the issue is not addressed, but i think that the answer to that question is there isnt a jurisdictional b bar. 57. 6 local rules of the District Court which provides any person, newspaper, anybody can come in and ask in any case and by supposition, the District Court by the order of the grand jury and once they used that order of course the department of justice, the grand jury has direct review of that order [inaudible] it doesnt go to review, it goes to the District Court in the first place. I agree and its not challenged the New York Times come in and ask for grand jury information, they reviewed that and we have not challenged thats a miscellaneous action heard by a District Court. The suggestion that this is impeachment inquiry and that is the way we should look at it. Our involvement. I think that the conclusion that the federal judiciary, put it this way, we do as the court is well aware, have with the standing of the house of representatives to file civil actions against the executive branch to raise arguments to certain error in the exercise of executive power. We think that those are not article 3 cases for controversy and the kind of courts historically adjudicated. And thats pending in the District Court and court of appeals. If we do things with the house of representatives trying to create cases or controversies in the federal court, would not advance that argument. I agree that the court would decide if they want today i think theres a serious question there. And thats another reason for appeal and other questions in this case. Now im not aware of any case, any case in which the court had felt that the need for all relevant to invest fully, so raises from the Judicial Court had been inadequate under 16 e 31. And the argument its not fair to them. How are they supposed to know in the impeachment hearing what are they supposed to look for. The premise that theyre under the right gate under the rule at all. And the rule 16 is federal court, local court. I think that help me here. In your view then for the committee to at least make a better argument, the departments position is it must be able to tell the District Court, assuming the District Court has jurisdiction, that we want the grand jury testimony of witness a because witness a testified as to events 1, 2 and 3, which the committee is investigating in terms of determining whether or not to file charges. Is that the kind of showing . Thats and they would have to say we are unable in our own authority to obtain the information about event 1, 2 and 3. So, well, im not going to add that, all right . Because there are several ways to, you know, skin a cat here. But what im trying to understand is then the departments position is that where a witness testifies before the grand jury, unless that witness reveals voluntarily the nature of his testimony, either in interviews with the media or otherwise, other litigation, then a party has no basis under rule of exception for judicial proceedings to obtain an order from the District Court. That seems to be clear. Thats not the only, thats not the only way, but give me another way. You have to be that particularized. Give me another way if the witness doesnt voluntarily disclose. The community put something in the Mueller Report, saying that the grand jury had in front of it a particular document which the committee is unable to obtain through its own investigative procedure so if that were taken pr this courts decision in 1986 in the decision, that case there was an enforcement action in the Southern District of new york and filed an affidavit saying we want the grand jury material because we need to get this information and that this court said, it was not good enough so what might have been good enough there were a couple of documents that the grand jury had that were illegible or couldnt otherwise obtain. Thats how this works. Well, normally. I did understand the court to be saying it had to go so far to identify witness a as to one, two, and three. And you would add to my hypothetical the committee was unable to obtain that information but other normal discovery. I think were in agreement, your argument is to ought to be Something Different under the impeachment proceedings. But i but i didnt see anythn the history of rule 16 or anything you side to me that goes quite as deep as you are requiring in an impeachment setting. Right. In the impeachment setting its the premise i i want to try tot to. It was pointed out something in particular about that. In douglas oil the court also said, the District Court granted the release of grand jury information but said they 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 could only be done for recollection of witness during trial deposition. Thats an exercise under rule 16 to impose conditions on time, man or any other condition the District Court may impose under the release of granger information. The committee volunteered that is going to discuss this, initially reveal only to counsel, do it in a safe manner. The department suggested that was an accepted way of presenting. If i may, just on this point, i dont think my friends will agree that a a District Court n oppose that Credit Conditions on the house of representatives or the senate in an impeachment proceeding. Thats a pretty fundamental yes, it is. Thats your irreparable harm argument. Yes. Just generally the fact information is being disclosed. Once information crosses the Event Horizon to congress and federal court has no authority to control. That is to why we get us to in this case a fundamental question of whether rule 16 is meant to do with congressional proceedings at all. Im not following the argument about how that relates. Are you saying that increases the burden of proof . No. It is like the factors the particulates meeting was pursued as a mismatch for what carcasses need in an impeachment proceeding. I think the reason why it feels it did match is we shouldnt be in his pocket at all. Lets stay in the bucket though. But the reason i i was makig this point about constitutional limitations on speeders i see your point. Thats an argument for why its not in this bucket. Thats a fundamental aspect, is if it is a court allows granger information to be released i thought your argument wouldve been if youre in that bucket that its an increased burden on the house to show particular eyes need, because once it is out you are not going to get it back. If you accept all of the thresholds, i dont come but if you did, then yes, i , yes, i wd think that because it is irreparable. But i think again, the fact that the city court basing error in this case was approaching the question as though it was sufficient to find it exercise a form of judicial power, i had questions about that. We are interpreting 16 in the statute and questioned whether this is a judicial proceeding within rule. Very many statutes and rules the regular trials and judicial proceedings and enforce judgments and convictions but no one would say you think its a different question whether impeachment is a judicial power versus the statutory standard of whether impeachment is a judicial precedent . Yes. Let me give you an example. This court said in 1980 that Federal Maritime Commission proceeding was not a judicial proceeding. And yet we know from Justice Thomas opinion that for purposes of the 11th amendment, any proceeding of the Federal Maritime Commission is the same as a District Court lawsuit. So there you have an example of constitutional purposes, judicial proceedings of the outcome of the suit but for will 16, even though there are judgments that are enforceable and legal consequences, its not a judicial proceeding. We know in this context of the rule what we talk about is courts. Theres only one of the rule in the rules of criminal procedure that uses the phrase judicial proceeding. Thats rule 53 nsb with broadcasting of video from courtrooms. What the federal rules of civil procedure are talking about his procedures in front of courts, state and federal courts. By definition and rolled one of the federal and criminal procedure of judge, it defines judge come federal judge can state judge, local [inaudible] let me address that. I agree with you if the court thinks they decide to question and its off the table for the speller, i dont think thats right and let me explain. However you read it, the result is clear, right, that the impeachment proceeding gets materials. They went at added giveaways, whether its the Port Authority or under judicial proceedings but thats the gist of it. It would be extraordinary for us im sorry to hear that, but no, i dont think thats right. Everyone understands halderman was by two witnesses. The court held there was no unmistakable right to information block. The denial is not affirmative authority of the opposite proposition. What was the reasoning . What did the judge say . The judge, the courts it was issued the same day the court was argued. They said were in general argument with the District Court treatment of issues. And no need to elaborate . No need to elaborate on the general treatment of issues. Even the judge in his dissent in mckeever acknowledged there was no meaningful analysis. As is always pointed out the underlying physical proceeding itself is ambiguous as to its rationale. In that sense if you look at the halderman decision by the court, youre not going to find it. But that decision says we agree with the judges analysis and we find no need to elaborate and the judge goes into analysis. With handling of these matters, no more questions, whether i granger can issue a report and other things, were denying the petition for writs of mandate. The court thinks thats a holding, plein air a holding, then i agree the judicial proceeding i dont think, this is an important question that no board of appeals has ever issued a decision at a think the so you say clearly held, and i thought that adverb was interesting because you put everywhere. No court has clearly held, right, the adverb. Right. The adverb was meant to refer to the standard. But you say that no court has clearly held, and i thought well, in mckeever, we interpreted it i agree that what mckeever did was characterize the basis for denial of mandate in halderman. I think respectfully thats just not holding on the merits. As i say i think were looking at just a couple instances, all look at the same information. But my guess is, just by guess, my guess is halderman having an issue of that importance briefly decide in three days, procuring orders the same does or arguments, look it couldve been it couldve been but my point is look at the order. A few paragraphs and it makes no law at all. My guess is the court was just try not to establish circuit president. It was saying petition, deny it. What was the importance of halderman that it wasnt upheld by the department of justice . I mean, its hard to know on the en banc court order. Do they discuss that . They do discuss that. This is the very first case to my knowledge, the very first case in which this question is quite a prison and an outer cell posture. For the reason i was discussing, look at the text of the rule a look at how it uses the language. You ask yourself whether it would because additional for the rule itself to operate in the manner that the house digests because it imposes conditions. We agree the rule to avoid the consequences. I dont understand the granger information cannot be used for impeachment no copies can be made or thats to the back to the Department Justice afterwards. Can we go back to my question about jurisdiction . I think it may. I think it may in the sense we are asking basically the same question, we are saying theres a fundamental incongruity between rule 6e and its ordinary operation in the role of federal criminal procedure, and employing that will for the purposes for which it is being sought to be employed here, i think the answer that is to include that on ordinary textual ground, you apply the regular role, that we are not that it is not a judicial proceeding at all. I think you conclude you may have more fundamental questions. Well, you get no credence to the notion that whether rule 60 was an active, it embraced positions that had been outstanding before then . Ruled 60 was adopted in 1946. The time was adopted the committee noted it was meant to codify prior practice of use grand jury materials in several cases. The only cases cited had to do with the use in some proceedings of information gathered by criminal grand juries. In 1937 when congress directly enacted rule 6e, there were reports, what they say is that you shall proceeding exception is designed to address. Its the problem of look, we have criminal grand jury with the most extraordinaire subpoena power in north america law and gathers enormous body of evidence and medical i want access to it. Of course the exception in that standard is about that power, but the problem of how civil litigants or criminal defendants outside the terms of the criminal rule get access to accumulated granger evidence for federal court proceedings. Part would be where there are, what is grand jury evidence, the impeachment process has no way of getting that information because if it comes to the District Court, the court says well, it doesnt apply to impeach mercedes and i have no Inherent Authority to turn over, the department to turn this material over. Therefore, the witness who appeared before the grand jury who wishes to voluntarily give that testimony to a committee, there is no way for congress to get that information . Under the present text of rule 6e. Yes. But i want to make a point though. Rule 6e has no constitutional dimension. Congress is directly amended it many times. Congress could amended it to provide for any think it would back up and ask yourself, just an abstract how would Congress Vote now providing access to impeachment . It wouldnt put under the legal judicial proceeding. Also would not require we dont know how congress would an active this. I suspect of course or dont. That would be for congress but if congress were to act exception of rule 60 fort lawn bit alike would not put the court in a position of policing that. So rule 6e a lust for one federal grand jury to give information to another federal grand jury without going through was at the position at the department of justice in 1985 that 60 60 would add exception would because additional or would it infringe on the control over grand jury material . Im not aware of whether thats the case. 1985 opinion. I think that the reasons why one might ask about the constitutional scope of grand jury information under rule 6e for the same reasons that we were just discussing, about whether we ought to be in this bucket at all of whether the District Court ought to be in this business at all. If there is to be that rational would call into doubt the casa del ship of the application of rule 6e today industry case yes, it would. That you want comes to amend the rule in the way the department has said may race x series constitutional problem. On suggesting as the court Knows Congress has in other statutes provided, required independent counsel to give information to congress that they are on impeachment. You would think at least if congress thought this was sensible to the impeachment power that they would exercise the basic legislative authority and do that. We wouldnt be a today speculating about whether any judicial proceeding or they have never needed to do that before, have they . They have but it is, many times, with the rule has needed to be amended to address basic fundamental Public Policy questions. Example that comes to mind is in 2001 after the 9 11 attacks it dawned an egg on 6e didnt allow the department of justice we are talking but impeachment. Why didnt the executive approach this before . Its true we did not oppose it before. I think the most recent was in 2009 which of course was in im talking the president ial impeachment. I want to explain why because i think this is important. As the court is aware, in the light of cases that include mckeever, the department for nearly a decade had been arguing that rule 6e doesnt have some, you have to read the text according to the text and enforce it according to text or i been arguing the case was a person for a decade. I have been arguing the case for a decade, and arguing in this cases as a look at materials, is rule 6e is not a provision. As is not allow a court to disclose granger information. You have to read it like a statute. Within this question arose, we realize we had been critical about that. Weve been in the impeachment proceedings, a proceeding of the same erroneous assumption. So we corrected the assumption. You have to read 6e as a statute, and when you do applying the regular principles of interpretation you come to the conclusion that impeachment proceedings are just that a judicial proceeding in defense of rule 6e. Thank you. Iq. Thank you. Counsel for the committee. May it please the court, imm douglas letter, the general counsel of the u. S. House of representatives. With me today our associate general councils and various representatives of the House Judiciary Committee and Georgetown University law center. If you will give me ten seconds for a personal note, please. When 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 is mr. Freeman, who is my friend, and i think one of the finest attorneys ive ever met. And im honored to be arguing, appearing at the same lectern with him today. The Court Considers itself fortunate to have both of you. [laughing] thats very kind. After this is over we will shake hands and hug. If i may, i think i should start out with the question, it went to jurisdiction. Im sorry. Judge rao asked, i think the problem with saying that this is governed by the walter nixon case, remember, the Supreme Court held, and by the way, i was the attorney on the case. The problem is the Supreme Court held that it was a political question, how the senate should go about carrying out impeachment proceedings that actually it just dawned on me, judge griffith, was the set of Legal Counsel at the time. I was not. I thought he probably knows this much better than i do. A very small town. It is. So the Supreme Court said thats a political question about how the senate is to carry out its functions. You said that any application of impeachment is a political question, we would have a major constitutional problem here because we have a rule that says that a court order is needed. But apparently under the argument that is the typical political question would be that congress or house cannot seek or get such an order from the court and, therefore, you have, think we all agree, the absurd situation of grand jury material would be available to, for instance, newspapers and other private litigants, et cetera, bar examiners, but because of the political question doctrine it could not under any circumstances be available to congress, even if Congress Passed a statute because then it would be a clinical question if congress ever tried 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 court for a court order, as is true here. And by the way i would just note, not in the walter nixon case, the Richard Nixon case, the judge enforced in order. It would be very strange that the court had done that. One thing i wanted to note right off before i start i should say, clearly the best argument that i have today is chief judge how opinion issued a a lengthy opinion, addresses the various issues. She didnt just make findings that were unsupported, et cetera. She into considerable detail. So anything that i dont cover today, i can urge you Strong Enough to please read her opinion. My friend mr. Freeman was pointed out 60 as a statue by want to make sure something is not forgot your, which is it was passed originally by congress. It is part of the rules of criminal procedure. Therefore, the Supreme Court can change 6e any kind wishes and affect the Supreme Court has changed rule 6e. So mr. Freeman for suggesting well, congress could pass a statute changing 60. Thats true but the Supreme Court could then change it and under the rules enabling act the Supreme Court can overrule statutes. We would be in this very strange situation of a rule, a criminal procedure, that is normally done by the Supreme Court, interfering with the Impeachment Authority of both house and the senate. By the way, i just want to emphasize if the Justice Departments argument is correct, this is not a judicial proceeding, its not just the house that cant get the grand jury materials, the senate that is carrying out the trial, and emphasize that word because boy, does that seem like a judicial proceeding, shes judge rehnquist told the youre not yours, you are a court. Esther friedman thinks chief judge rehnquist did know what is talk about, although he written a book about impeachment, okay. So this court also has held that there are judicial proceedings. I have to say im just not fully understand why anybody would think this footnote three, in any event, we read haldeman at did the judge mccann in a separate opinion as fitting within the rule six exception for judicial proceedings. Its a footnote to judge help asking about that. Its a footnote and the pointed out, to my knowledge, footnotes by the d. C. Circuit our law. And the court had to reach that point because if it didnt, that changes the Court Precedent about what haldeman held. So it needs to reach that point and, therefore, this is a statement the court makes in its opinion in order to help explain its opinion and give its rational. I dont know of any definition the says that is not a a holdi. So that is to my mind clear. One also preliminary things i appreciated, i think judge rogers picked up on this. My friend said the government, which he is obviously used to saying. Im here for the government, thousands represents is a first branch and its the Justice Department and the house of representatives, where both the government but were the first branch. So we get to this major departure here. After the first branch. [laughing] judge, i was hoping you would take on the mantle of the senate and then we could complete this. Different obligations. One of the things that is so key to the opinion is that the reasons for grand jury secrecy and there are reasons why the house request and is entitled to the grand jury material, theres almost nothing here on the site of continuing maintaining grand jury secrecy. You have grand jury proceedings are over. Mr. Freeman mentioned other proceedings, other proceedings, we know the stone case just finished. In addition by the way, the information about, in the report that is key about all the proceedings, attorney general barr already allowed the house to see that material. I saw it. Memories of the Judiciary Committee and Intelligence Committee site because we were allowed to look at the material involving other prevented and redacted because it involved other proceedings. That really doesnt wash here. As i say the grand jury is done. We have moved on to this totally different phase now. The need for this by the house of representatives is immense. Whats the rule, mr. Letter works how do we apply this during an impeachment proceeding . What is the role . Im not going to get up here and argue against we need to make a strong showing, but i think the best way to put it, your honor, is that it has to be influenced on 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 there needs to be a particularized need, right . It does. So what does that look like . Judge how looked at this. The particularized need here is we have come i forget which if you were members of the court, we have at least two people who have already been convicted of line to congress and line about this. What are they lying about . They are lying about things that go directly to the Mueller Report. Did the president lie . Did the the president , was the president not truthful in his responses to the Mueller Investigation . I believe if im correct the special counsel said that the president has not been has been untruthful in some of his answers. So, and in addition one of i did it. I want a rule. Your idea of an impeachment inquiry, i believe is Something Special come right . What is the role . What is the showing come in future cases what would be the showing that the legislative branch we need to make to get the grand jury information . Your honor, im going to stick with the term its in the role. But it means it is an impeachment proceeding, its in the government interest, is particularly strong and obviously the key point is, is irrelevant and part of it, does, has a government shown im not would use the term government. Has the house shown that it would go to the issue of is the president , should the president be impeached . It goes to is the president continuing ability to serve properly as a president net estate . Thats what the impeachment proceeding is about. And by the way thats why we hope this court will rule for expeditiously. Because were not just engaged in normal investigative oversight, legislation, et cetera. The house is now trying to determine whether the current president should remain in office. If he should not remain in office, this is something that should happen as soon as possible because it means that he is undermining the interests of the National Security of United States pics of this is something that is unbelievably serious and its happening right now very fast. Whats the Mueller Report have to do with the proceedings right now . Dont believe everything you read in the press, your honor. We discuss this at considerable length. The impeachment inquiry is in part focusing on what are called the ukraine matter. But it is also absolutely clear, this is what i said to chief judge holcombe is looking at the Mueller Report, the Mueller Report discussion, did the president carryout obstruction of justice and related possible that ask . And thats park two of the Mueller Report go to that very thing and, in fact, as we know mr. Moulton indicated theres plenty of evidence that he did obstruct justice. But mr. Moore said, but i cant make that determination because of the opinion. And that relates to the first part of the Mueller Report. Mr. Freeman i think was talking about volume tonight. It is 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, visavis election in appearance by the russians . What did he know about wikileaks . There significant evidence that comes out with regard to roger stone, but also, this is a very key point i want to emphasize, one of the redactions and i have to be very careful to not disclose anything thats the public, but one of the redactions refers to manafort and manafort testimony, and so another issue here is was possibly the president s responses inconsistent with things that would be in grand jury transcripts involving manafort. Why not a redaction by redaction review . Why not . I dont think theres any need to go through the many redactions. In addition to Court Hearing judge howell says you want to take the whole day to do that . Was at i think would take longer than that, but we certainly could do that. I dont think that the rule we could go redaction by redaction in the Mueller Report. Theres quite a few particularly in volume one oned we could sit down with judge howell. One of the problems is we dont know what the actual grand jury transcript is. She had received from the attorney general and unredacted statements of what was presented to the grand jury, and that she had read that. Youre actually correct. And she ruled in light of what she had read. So she didnt disclose anything and you are not disclosing anything. I just wonder, i understood the committee had a slightly different position on what would be a particularized need required to show when it was appearing before the District Court. Then you related to judge griffith now in a sense that the 11th circuit has language about the full and fair inquiry, public trust in the fact that it is a full and fair inquiry that made decisions about evidence about whether to bring charges in the context of an impeachment proceeding, required the committee have access to all the evidence that is relevant to the inquiry. But its not that, it is not for the committee to come before the District Court and say we are conducting an impeachment inquiry into whether the president can properly continue to serve as president and, therefore, we need to Read Everything that might be relevant to that inquiry. I understand the committee has taken that brought a position. Your honor, i am happy to be corrected by your, your exact right, thats with 11th circuit held. So im not sure what the test i guess i better give more thought to the answer to the question. Im not sure what the test would be overall. So, judge griffith, if you are not sure of my aunts, definitive answer, but in this instance we have shown, we have shown judge how accepted it so it is a casebycase determination that this is not a fishing expedition . That would be a clear part of it, yes, your honor. And again it would seem to be that because an impeachment inquiry is whether its a judge or a Cabinet Office or the president should remain in office, that a key aspect of it is, is the evidence we are looking at, maybe this is part of determining relevance to the impeachment proceeding. I i want to focus on the irreparable harm clause. It does seem, as your colleagues suggest, that once the materials are released, well, the secrecy is gone. Why isnt that an extremely strong case for irreparable harm in this context . Your honor, it is definitely a good argument that i should not it is not that we have answers. The Judiciary Committee has set up procedures for protection of the grand jury material. I know, for example, the Judiciary Committee received the watergate roadmap. And to this day it still has not been disclosed by the Judiciary Committee. So the judiciary recent history suggests may be these norms are not in place that were in place then. That could be. The key though is so what procedures to rehab . The Judiciary Committee has set up procedures to limit access to the material. It would be the members of the two committees. [speaking in native tongue] so if a majority of the committee decided to release, what happens then . The majority, as congress has set up, the majority of the committee can vote to release and then it would be released. That is absolutely correct. But our determination doesnt turn on good faith or bad faith efforts of the committee to maintain secrecy. As it does not, because for example, the Jewish Community and Intelligence Committee could look at the material Intelligence Committee Judicial Committee need to have access to this as part of impeachment proceedings. That is true. I cannot state their substantial and serious legal questions going to the merits. Isnt that sufficient then under the courts precedent for granting a a stay. Was if that is true but it is not true. Yet by president and the on that, as far as this goes with overwhelming arguments here history of practice, the Justice Department has to my knowledge always agreed until now that as your friend pointed out, with additional Court Hearing when she asked about one particular center, you said youre right. Right. That was one matter of as to mr. Flynn, a very minor matter. The judge went to a look at other matters and said we are not closing did she look at that with the evidence. As she did not say. Is that a problem . I dont think so because there needs to be a focus inquiry on action and one example we have, turns out didnt need to be redacted. Your honor, i dont think so because judge how obviously looked enough to see was there one, and she raised that. But other than that, using what the Justice Department submitted to her, she had an understanding of what is in there. She clearly had an understanding of, that there already had been proven lies that related in part to the president. In carrying out an impeachment proceeding there is a sufficient need and a particularized one for the Judiciary Committee to this material. And so as for irreparable injury, first of all the Justice Department is suffering irreparable injury here. Secondly, the 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 no general presumption in favor of grand jury secrecy . The rule provides for narrowly construes specific exceptions. Im not sure it would involve narrowly exceptions are broad and broadly applied which is quite common for grand jury material to not be significant effect grand jury material issues on a very regular basis publicly in trial by the Justice Department. In the stone case, it is perfectly allowed under the statute, under the rule. I would like to say, in addition, if irreparable injury is the key to todays proceeding, theres a very clear way to solve that. This court should simply just look at the mayors of the decision and issue a final ruling for the court. We know you can do that kind of thing, and the Supreme Court, got to the Supreme Court on a preliminary injunction. The petitioners were raising very serious claims of irreparable injury. They were detained, a were u. S. Citizens detained 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, okay, we will go straight to the merits, and it held that the actual claims were wrong, there were not recognizable in the court. The nature of irreparable injury was made irrelevant because the Supreme Court made a final decision on the merits. Lets be clear about irreparable injury. Initially, the department was focusing on the fact that the court denied a a stay, then measured the fact that its own right to appeal might be mooted. The Supreme Court rejected that. Then today we are told that there are hundreds of investigations out there, but there was no response to my question, what in particular pending investigations relate to redacted materials that the committee is seeking . So my question is, is there any burden in irreparable harm to be specific about this, as opposd to a generalized statement that anytime you release grand jury testimony there is irreparable harm . The District 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. So that the normal concerns that underline the reasons for the grand jury secrecy did not apply. And im very glad you brought this up, your honor, because remember, a separate reason why general barr redacted material from the reports was to protect other investigations. Thats different from the grand jury. Then general barr allowed the Judiciary Committee, the Intelligence Committee, the speaker of the house and me to look at those. So we have already seen that. He has already said go ahead, look at that, and we did that. My memory is there is only one instance where there is an overlap between applying 6e and other, harm to another investigations. So this is a bogus point. The general barr was not saying we need to have absolute protection for all these other proceedings. He dealt with that separately and he has already reached in a way and what were asking for here, so we get the grand jury material in the same way that general barr allowed us to see the material involving other proceedings that need to be protected. Whats left . Whats left appears to be some discussions, in particular volume one. There are all sorts of citations in volume one the various statements that obviously using grand jury material. In addition in volume one are at one point i think theres a third of the page, there is areas where there are redactions. And again, remember, i think this is getting lost, judge how ordered a very carefully staged disclosure. As i think was noted, the Judiciary Committee didnt disaster everything. We ask for limited amount of grand jury material and the first items we asked for were redactions, grand jury material redactions from the report, and the underlying transcripts that, provisions or parts the talk about those. And thats all judge how is order disclosed. She said, if after that you want to come back for more, i will consider that. So for now its actually a very limited amount that she has required to be disclosed in a limited way. Am i correct the District Court hearing you indicated the committee would be willing to compromise involving in camera review . You are absolutely right. Youre interested that . Yes. Obviously we would prefer the order before. We think it is 100 correct. However, if you have concerns and youre not just going to go to make a decision, we are willing to have that there would be, the court would maintain control of the documents and they would be made available in camera basis to staff. Again, were trying very hard to carry out an extremely Important Role on the house while speed what you mean be available to staff . I thought this would be part of an argument, for the need argument . If youre worried about the affable irreparable injury, saying, well if all sorts of members of congress because the Judiciary Committee and Intel Committee are very big combined, but we said if the court wanted to limit it in the initial disclosure, in the initial disclosure to staff from Judiciary Committee and Intelligence Committee how about to counsel seek to make argument for particular ice need . If we were satisfied. Yes, i would think that i would have to be included in that for that reason because i represent a house in court. So we will go back judge helsing okay, staff has looked at this and the following things should be disclosed further. We are, again, we are trying very hard not just you. You know, the public that is the staff here are the ones with considerable expertise on what the grand jury materials might show about whether or not the president was, was providing misleading answers to mueller, as we know. What was the discussion to this court about the in camera review . Would your honors give me one more isnt that or know the type of negotiation that takes place without the intervention of a federal court, right, and the backandforth between congress and the president over access to information . Absolutely, your honor. Whats the accommodation . They have said that only are we not going to give you, we will not give it to you because we will be violating the law. Remember that their position. Its an absolutist position. You, you by law you cannot have grand jury mature. Im assuming speedy you have already seen it. Not the grand jury material, no. But unredacted versions of the Mueller Report. We ask for it. We asked for the speaker of the house, we asked that i could cedarwood asked that Committee Members would see that we were told no. And i not surprised given their position, their new position that is so inconsistent with many decades of prejudice. I think the position is they cant show it, and as you know, i believe rule 6e is punishable by contempt. So i assume so there is no accommodation here, your honor. Weve asked and asked an aspect the accommodation was you know what, we will give you other material. We were show you fbi 302. Judge howell described that as a farce, and it is a farce. We have never been given 302 from mr. Mcgahn. We know now that mr. Mcgahn didnt testify. We been given a batch with very heavy redactions. We asked why there were redactions. We did not get an answer. In recently because of the letter that was sent to the house saying, we are not cooperating anymore i believe we have received absolutely nothing. So if i may i just want to consult for one minute with my colleagues if you will give me the moment. I apologize, your honors. I just wanted to make absolutely sure that yes, we continue to get especially and butter white House Counsel slip if we continue to get theyre still accommodation being done here. Again, there are quite worried about i assume being placed in contempt. Judge griffith, absolutely, yes, it would be to counsel, my office, and counsel for come connected to litigation counsel for the committees, the Intelligence Committee and the Judiciary Committee so that we, the initial situation. If i could get, i would like mr. Freeman to [inaudible] i would be interested but im guessing he would say [inaudible] possibly being placed in content. And again, the manaforts situation shows so clearly that there is evidence, very sadly, that the president might have provided untruthful answers and, therefore, is obviously a key part of a possible impeachment inquiry. Can you prove it . Im sorry . And you can prove it . Give me one second to look at my notes, please. I think thats it. Thank you so much, your honors. Thank you. Counsel for the department. Thank you your audit. Let me start with a factual point about access to the District Court had to unredacted version of the report. The District Court did not have volume one of the report. The District Court did not see any of that information. The committee asked us to provide ex parte in camera to the this accord and we did not but the District Court didnt take us up on that offer so no one has seen the unredacted Mueller Report in its entirety. We can provide one declaration that with of the five redactions in falling to that. Thats what she had a fight of her. So that was a reference, the statement she repeats and the attorney general . Im sorry, i dont follow. That she reviewed, the statement on the attorney general stating what was in the grand jury testimony that has been redacted. No, im not aware shared access to anything. She didnt have access to any you said she looked at the documents that the attorney general had submitted. I believe yes, i believe thats a reference to the declaration which is in the record, unredacted version in the Public Record that walks wad through the basis of the five redactions in volume two. But nothing as nothing as to volume one. When the District Court cited in her opinion they would have need to see, to fully investigate the trump tower incident or whatever, that was not a funny based on having seen any information. She didnt have that information front of her. The next and want to address is the question about the ex parte hearing in this accord, i believe that was given to counsel. We object for recent statement we agreed the District Court to look at the information she wished and we would be amenable to that if you want, but there was never an agreement that staff would have appeared in part because of the recent i discussed before, as it causes is a once information goes across the Event Horizon to congress, theres no way that the court could regulate the attorney general has already revealed to the committee the redacted information regarding any investigations, that the grand jury is over, that the reason the grand jury secrecy is sliced and intimidation of witnesses. And if i may, on that point i just dont think thats right. The reason speedy what you mean thats not right . Its what they say. Im giving you the opportunity to tell me what more is involved. There are at least two other ones for grand jury secrecy. One is to serve the candor future witnesses to other grand juries. We know that. And i agree she addressed to. I dont think is very persuasive. You have to ask yourself i understand he may not agree with it. The question was, when she clearly erroneous in making a finding . Do think its a question of law . I do think it is squish of law and what she said theres no reason for grand jury secrecy so they cannot all relevant evidence. In the context shes been dealing with, all the parties please, i mean, this is not, you can go look anything you want. Thats what im trying to get across. This is not a fishing expeditio expedition, given the Mueller Report and the specifications which i understand you say were not enough, there was specifications in the District Court found was adequate as to why the need. If i i may come i think the fact there was an extremely detailed Mueller Report against the disclosure rather than the favor i think that showing that they had interest just look at the words the Supreme Court used to investigate fully, complete the story. Theres a never words this court would accept in a regular proceeding. We just saw that when my friend was standing at the podium and asked what he stated that he said i couldnt tell what the standard ought to be for impeachment proceedings. He said would have to be a casebycase analysis, not a fishing expedition but we dont know what how would the House Judiciary Committee make the showing of particular allies need without being able to see the unredacted material . I think in the same way that led against generally do. So, for example, if they had, im not privy to this information but understand many, many witnesses coming in close sessions, and witness testified and close session, that this is something to the grand jury and another public wit is that something inconsistent with that, they could come in and say we have these two things can wear thin theres grand jury testimony how would they know it is inconsistent . This is exactly the point that thats your point, if the witnesses voluntarily indicate somehow and the committee can say well, thats different from what was said by another witness. Look at like douglas oil, that the case talks of what is usual, what is the particularized need . If the impeached testimony at trial and refresh the resurrection of witnesses at trial. An investigation. The thing to me is i would not favor given this information because it will show he did nothing wrong. The house does not want to return a charge where the evidence would not support it. You would have prosecutorial requirements. Normally you have to turn over this information was my friend is correct. That circles back to my original point. Imagine the District Court issues orders to hold the house or senate in contempt of court for not following the same way you would follow a regular party in contempt for not following District Court in this case. If there are irreparable injuries there are traces of merit. A couple things about the suggestion. Agree this court has priority. The merits of an appeal on the same motion. You have in front of you two, 5000 word commissions on two fundamental and important questions in federal law. On the expedited schedule, we do think the court ought to disclose the order depending on that proceeding. The last thing is my friend had a colloquy regarding irreparable injury that judge roberts said what is the specific injury to a particular pending procedure. That is not how grand jury secrecy irreparable harm normally works. We have to polish off all grand jury testimony to show particular criminal proceeding that is going to be jeopardized by that appeal. Why do you see irreparable harm . Theres a reason we protect grand jury secrets and and through it. Another is part of what the grand jury does is investigate and to protect the rights of the innocent and cant represent to you, we dont require the information, irreparable injury. The court has substantial argument, a strong showing of irreparable injury. And we ask you to do so. Booktv has live weekend coverage at the Miami Book Fair. Featuring author discussions and interactive viewer call in segments. Saturday at 11 00 eastern, tom cotton talks about Arlington National cemetery, National Security adviser susan rice discusses her life and career. And the Westboro Baptist church. Patrick janine of constitutional studies at the university of notre dame and wired magazines Andy Greenberg discusses Russian Hackers at 10 30 eastern, live coverage continues with undersecretary of state in the Obama Administration on proliferation of disinformation on international politics. And David Marinus on the red scare. Journalist Eleanor Randolph discusses new york city mayor michael bloomberg, former Deputy Director of cia counterterrorism ctr. Philip mudd talks about the state of cia Detention Centers and former professional Football Player Don Mcpherson on toxic masculinity. Watch live coverage of the Miami Book Fair saturday and sunday, on cspan2 booktv. I think a National Primary is probably one of the worst reforms we could implement. If we were doing in a rational way, we could have a rotating regional primary so in different elections we have different sort of groups of states go to gather which would focus retail campaigning. Learn about the president ial nominating process sunday night on q and a. Laura brown mother after of Political Management School in George Washington university discusses how we nominate president ial candidates and what reforms to the process may be in the offing, watch sunday night at 8 00 eastern on cspans q and a