Authorizing the release of certain grand jury materials in the case. For the u. S. Department of justice, mr. Letter. Judge rogers good morning. Good morning, your honor. 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. Nrungell cannot be ou afterthefact. The court denied that motion on the left because of merit, but as we explained, the District Court committed at least two serious errors of law in granting the request. Judge griffith you can start with irreparable harm. It is the case that if we agree with the District Court, the irreparable harm is not that important. Mr. Freeman i disagree with that. Our intention in the case judge griffith you thought you were likely to lose on merits . What significance is it . Mr. Freeman i agree with that. In terms of the irreparable harm , the disclosure of grand jury information from a massive federal criminal investigation of that concluded only eight months ago, there are only 25 pending criminal matters that have come out of that proceeding. There are 2800 criminal grand jury said eunice. Judge rogers what do those mean directly to the redacted material . Mr. Freeman how does that relate . Yes, that is the point, on our second argument, which is the 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 you relying on, and what tauthority counsel provided , nothing. Mr. Freeman this is government counsel. Judge rogers counsel for the department of justice. Mr. Freeman yes, your honor. The test we are relying on, as we explained in District Court, is the test on douglas oil. Judge rogers yes, what does that say . Mr. Freeman it shows you need to avoid specific injustice and in other proceedings, that you have to show that the interests by theecy are outweighed interests of disclosure, and let the disclosure could be tailored to that particular injustice. Judge rogers and the District Court found that that test had been met. Now, why was the District Court clearly erroneous in its findings . Mr. Freeman the District Court as inted the same error the case in 1986, where the Supreme Court found for district oil. They found that there is no doubt that the District Court has reasons for the specific findings. Judge rogers where specifically is the error . Mr. Freeman the error is granting release of grand jury information judge rogers that is not what the District Court found. The District Court found, in terms of the committees request ailored, that it had mr. Freeman the tailoring here was that they asked for all grand jury redactions from the Mueller Report. They did not. Tha 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. Mr. Freeman your honor, if i may, the committee said, we think there are things in the grand jury report that might bear on the things he wants to put forth for impeachment. Judge rogers they were much more specific than that, counsel. Mr. Freeman yes, your honor. That is what they said. Judge rogers they went down the list of witnesses with a thought could provide this necessary information. Mr. Freeman yes, the first witness be identified was don mcgahn. It turns out, he never went to testify before the grand jury at all. Judge rogers i am reading the papers, you are reading the papers. It was not the only thing. Test,st this douglas oil the District Court made these findings, and i am unclear what the department is saying douglas oil or other cases require, when, i thought, maybe i am mistaken, [indiscernible] us of expected to know who had testify, examine your sayimony, and be able to specifically why that witness testimony was necessary. Was the viewthat of the Justice Department all along. Judge rogers how could they question where it is practically in secret, and they do not know. How can they say more than they did . Mr. Freeman that was the preposition the Supreme Court rejected in abbott when the attorney general of california made that the way this works in point. The judicial proceedings judge rogers in that case, it was different, counsel, and you know that. I am just trying to understand, as a conceptual matter, where grand jury testimony is secret, a person or entity seeking the information does not know who testified or specifically they know,aid, yet based on the special counsels report, that there were certain elements that were unavailable they deferred on making any specific findings of criminal activity. Mr. Freeman right, and that is no different from any normal proceeding. To answer your question directly, how is a party to know that there is relevant grand jury testimony . First, the grand jury proceedings do not bind witnesses, so what often happens in these cases, in a criminal case or a civil case, i know that this person told me that they testify to the grand jury, [indiscernible] i want to use that specific testimony to propagate that specific preposition. Judge griffith a redacted review . Mr. Freeman i think they do. But one time that dutch hollow press council on that, they agreed that they did not need that information, and yet the Supreme Court give them that information anyway. That is not how rules proceedings are supposed to work best that is not how normal proceedings are 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. Why doesnt that change the nature of our inquiry here . Mr. Freeman it does change the nature of inquiry in that we are not dealing with a judicial proceeding. Judge griffith we will get to that. Let us imagine that we disagree with you. Is it different in terms of showing that particular rise in need necessary, because the mueller was never going to identify the allegations of president ial misconduct. Mr. Freeman i dont think that is right at all, your honor, i think the Mueller Report made that clear. Judge griffith it made clear that any allegations of misconduct were to be handled by congress and not the department of justice. Mr. Freeman but the point of the Mueller Report. Judge griffith and that is the history here, right . That they create, 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 Report did. On the obstruction of justice question, the Mueller Report was a detailed factual representation. It included 186 pages with five only five redactions in that entire section, one of which the counsel said there was no need for. Judge griffith are you suggesting the mueller didnt have the same objectives on findings of russian interference . Mr. Freeman hundreds and hundreds of pages, and there are a substantial number of youactions, as 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 judicial proceeding to come forward and say, i read the 186 100 81including the pages with no redactions whatsoever, and i am unable to establish this point, and that is relevant to my articles of impeachment, and i need that information for that reason. Nothing like that was brought in this case. You are making the proffer that people may have missed 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 i have said didnt know who testified, or specifically what they said to the grand jury. Mr. Freeman and on that point, i will repeat this. That is no different than any that is the whole point of grand secrecy, and that is what is established under rule 6 e . Judge rogers the result of that analysis that the Supreme Court abused its in a ruling that exception on the [indiscernible] ive its discretion . Mr. Freeman yes, and let me explain why. In a regular criminal trial, a trial arising out of the Mueller Report, of historic proportions, someone comes to this court and says, i am the defendant, my liberty is at stake, i want to make sure that they did not testify inconsistently in front of the grand jury. I want to make sure because it is really important. That motion is denied under rule 6 e . Judge rogers but if they say that we have evidence from prosecutions brought successfully by the department that people have misstated things mr. Freeman as to those people, that he would have to proof showing. Judge rogers but they have made the showing, havent they, that other people may have . Mr. Freeman sure. Michael cohen. He was convicted of lying to congress. But they did not come in and say, we believe that we have testimony in front of us that is undermined by testimony of another witness. What they said was that, other people have lied to congress, and we think we should get everything 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 not how rule 6 e works. That is the heir of the Supreme Court funding. I think there is a criminal antitrust investigation and said, wey came in and would like the same information in order to establish a cause of action. Judge rao i would like to take a step back and ask you about 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 impeachmentview the decision of the senate. They also suggest that it would be inappropriate for the court to assist or interfere with impeachment proceedings. So, if our involvement in this 6 e , theeting rule judicial proceedings for impeachment, wouldnt specifically involve this court in impeachment proceedings . Mr. Freeman let me answer that in two ways. We have not made that argument. Judge rao i am trying to make sure we have jurisdiction. Mr. Freeman the Supreme Court will always have jurisdiction. We are not advancing the argument. The District Court issued an injunction to the department of justice, to review grand jury information. We certainly have both standing and jurisdiction in that order, and we think it is wrong because i think the premise of your honor such a question is that the impeachment proceeding is in the legislative branch. Judge griffith i think it is an interesting question. Could you address it, whether there is a jurisdictional bar to us looking at an impeachment proceeding . Mr. Freeman the issue is not [indiscernible] i think the answer to that question is, there is not a jurisdictional bar. The committee came in under rule 57 point six which provides for any person to come cased ask in the impending to ask for an order. And once the court issues that order, then, of course, the department of justice as custodian has review of that order. It would make no sense that we. Ould not review it , the new yorkged times or the Washington Post comes in and asks for information, the Supreme Court reviews that, we have not challenged that that is a miscellaneous action. Judge griffith this is an impeachment inquiry, and that changes the way we should look at it. Judge rao our involvement is in dispute. Mr. Freeman i think we could include the judiciary. Put it this way. We havethe Court Concerns with the standings of the house of representatives to file civil actions against the executive branch to raise arguments and assert the exercising of executive power. We think those are not article three cases. That is not this case, that is many other cases. But if we do think that there are article three problems with the house of representatives trying to create cases or controversies in the federal court, we will not advance that argument here, i think there is a serious . , but that is another reason to grant a stay pending appeal. Thought. To finish the i am not aware of any case in which the court has thought that the need to defeat all relevant evidence, or to complete the story or investigate fully showingbeen an adequate under rule 6 e . There is not. I think the committees argument is that is not fair to them because how are they supposed to know what to look for in the investigation . Respectfully, i think that depends on the premise on whether they are under the right bucket of rule 6 e at all. As the rule explains, the federal proceeding in court, state, or local court human judge rogers in your view, then, for the committee to have a better argument, the departments position is that it must be able to tell the District Court that we want the grand jury testimony because of witness a testified to 1, 2, and 3, which is the committee is investigating in terms of determining whether or not to file charges. Is that the kind of showing . Mr. Freeman yes, and they would have to say, we are unable in our own authority to a information about events 1, 2, and 3. Judge rogers all right, there are several ways, but what i am trying to understand is the the departments position is that, where a witness testifies before the grand jury, unless that witness reveals voluntarily the nature of the testimony, either in interviews with the media or otherwise, then a party under the exception for judicial proceedings to an order from the District Court . Just need to be clear. Mr. Freeman yes. That is not the only way, but judge rogers give me another way. If the witness does not voluntarily disclose. Committeen the points to something in the Mueller Report indicating that the grand jury had in front of them in particular document which the committee is unable to obtain through its own investigative procedure. That was taken from this courts decision in 1986. In that case, there was an enforcement action in the Southern District of new york by the f. T. C. The f. T. C. Filed an agreement saying we want access of grand jury material because we need information. And this court said, that was not good enough. What was good enough was that there were a couple of documents that the grand jury had that that the grand jury could otherwise obtain. That is how this works normally. Judge rogers well, normally. And judge griffiths question, as well as judge rao, the proceedings for all of the reasons that the court has identified, and that is what i am trying to understand. The court is really concerned about a fishing expedition. You just cant have everything because it is irrelevant. There is a burden on you to show particularized need. Did understand the court to be saying that it had to go so far to identify witness a as to 1, 2, and three, and to add to my hypothetical, that the committee was unable to obtain that information by other normal discovery means. I think we are in agreement. That is how normally rule 6 e works. Under the douglas oil test for impeachment proceedings human judge rogers i did not see anything under the history of rule 6 e or anything you have cited to me that goes to what you are requiring in an impeachment setting. Mr. Freeman in the impeachment setting, it is the premise i want to try to get to that you pointed something in particular about douglas oil. In douglas oil, the court also said, the District Court granted the release of grand jury information about said, it can made,d, no copies can be you have to return the information to the department of justice when it is done, and it can only be used for the refreshment of the recollection of the witnesses during trial or deposition. 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. Initially, reveal only to in that manner. The department did not suggest that that was an acceptable way of proceeding. But, if i may, on this point, i dont think my friend will agree that a District Court can impose the kind of conditions that were issued on douglas oil on the house of representatives or the senate in the impeachment. That is a pretty fundamental judge rogers yes, it is common. I thought that was where your irreparable harm argument is. Mr. Freeman yes, and the irreparable harm, this court has held that once information crosses the Event Horizon into lacksss, if federal court a new authority to control it. That is an argument as to why we should get a stay in this case. But there is a fundamental question as to whether rule 6 e is meant to deal with a congressional proceeding at all. Judge griffith your argument, how that relates to the particularized need showing. You are saying that increases the burden . Mr. Freeman no. Theoint is that it is, particularized need inquiry seems like a mismatch for what Congress Needs in any impeachment proceeding. I think the reason why it feels like a mismatch we shouldnt be kicking this bucket at all. Judge griffith let us stay in the bucket. [laughter] mr. Freeman the reason i am making this point about constitutional limitations on it is aity to fundamental practice under rule 6 e at the District Court allows information be released. Judge griffith if you are in that bucket, it is an increased burden on the House Committee to show particular rest need, because once it is out, you cannot get it. Mr. Freeman if you accept the threshold, then yes, we think that, it is irreparable once you cross the Event Horizon. But i think, rule 6 e is a statute. The District Court made an error in this case it approaching the finding i have questions about that, but you do not need to look at any of the to conclude that the question is whether this is a judicial the ruleg within 6 e . Judge rao so you think it is a different question, whether impeachment is a judicial power, versus the statutory standard. Mr. Freeman exactly. An example. In theurt says in 1980, hearing before the Federal Maritime Commission, it was not a judicial proceeding under rule 6 e . We know from justice thomass opinion and the South Carolina port authority, that for purpose thehe 11th amendment, proceeding of the Federal Maritime Commission is the same as a District Court lawsuit. So there, you have an example of, for constitutional purposes, judicial proceeding 6 e rial, but for rule purposes, it is not a judicial proceeding. We know in the context of rule 6 e that what were talking about is courts. There is only one other rule in the federal rules of criminal procedure that uses the phrase judicial proceeding. That is rule 53. It has to do with broadcasting what the federal rules of of video from courtrooms. Criminal procedure are talking about is procedures in front of courts state and federal courts. That is the definition in rule 1 in federal procedures before a judge. Judge griffith shouldnt you be making this argument before the court and not a panel mr. Freeman i agree with you, that the court thinks that if halderman decides the question, that it is not a question for this panel. Judge griffith however you read that case, it is clear that an impeachment proceeding gets grand jury material. They went at it in different ways, whether it was under judicial proceeding, that is the gist of it. Mr. Freeman i dont think that is right. Everyone understands that halderman was a petition for mandamus by elco witnesses. The court held that there was an unmistakable right to have the information block from the least to congress. Of the mandamus is not a permit of authority judge griffith what was the reasoning . What was the District Courts reason . What did the judge say . Thenreeman judgment can mckinnon says, we are in general agreement with the District Courts treatment of the issues. Judge rogers and they feel no need to elaborate . Mr. Freeman they did not feel the need to elaborate. Thatthe dissent in decision acknowledged that there was no meaningful analysis of rule 6 e , and that the majority pointed out, the underlying the strict Court Proceeding itself was ambiguous as to its rationale. Judge rogers if we look at the that that a court, decision says that, we agree with the previous judges need to, and we find no elaborate. And the judge goes into considerable analysis . Mr. Freeman with the handling of the Matters Regarding whether grand juries can issue reports and other things, they are in general agreement. There is a plenary holding on the question, and i agree that the judicial proceeding is not in front of you. But this isa decision on. Held rogers you clearly and you put that adverb everywhere, no court has clearly , strike the adverb mr. Freeman resort to the mandamus standard. Judge rogers you say that no court has clearly held. I said, in that case, the judge we interpreted as mr. Freeman i agree that what the judge did was characterize the basis for the denial of mandamus. Respectfully, i do not think that is a holding that you could say otherwise, but we are looking at just a couple of sentences here. The court inhat halderman, having had an issue of that importance brought to it, decided in three days, the same day as the oral argument my point is judge griffith quickly. Mr. Freeman my point is that, look at the order, it makes no law at all. My guess is the court was trying not to establish circuit resident by saying this circuit precedent circuit by saying, this mandamus is denied. Judge rao release of this material . Mr. Freeman it is hard to know from the order. They do discuss they dis that. Case,is is the very first to my knowledge, the first case in which this question is presented in an adversarial posture. For the reasons i have discussed earlier, if you just look at the text in the rule, how it uses the language, you ask yourself whether it would be constitutional for the rule is self to operate in a manner that the house suggests, because it can impose conditions that even the house would not think it woul could impose. They are using the rule to avoid those consequences. I think my colleague will tell you that he agrees that he does not think the District Court can tell the house of representatives does it go back to my question on jurisdiction . Mr. Freeman i think were going back to the same question. There is a fundamental incongruity between rule 6 e and its ordinary operation into the rules of federal criminal procedure. Employing that rule for the purposes of which it is being thought to be employed here, i think the simplistic answers to that a judicial proceeding is not a judicial proceeding at do you give no credence to when rule 60 was may have more fundament of questions. Judge rogers do you give no credence to when rule 60 was enacted 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 forings 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 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 d cspans washington journal live every day with news and policy issues that impact you. Coming up tuesday morning, your reaction to the start of the second week of house impeachment hearing and testimony from Jennifer Williams, aidesps to Vice President mike pence. Ambassador curt volinger. White house aidetim morrison. Join the discussion all morning. Be sure to watch cspans washington journal live at 7 00 eastern tuesday morning. Join the discussion. Tuesday on cspan, the house returns at 10 00 a. M. Eastern for general speeches with legislative business at noon. On the agenda, a shortterm spending bill that would fund the federal government through most of december. On cspan 2, the senate is back to consider judicial nominations for the 11th Circuit Court of appeals and on cspan 3, the house Intelligence Committee continues its impeachment inquiry with two public hearings. The first, testimony from Jennifer Williams and lieutenant olonel who serves on the council. And then the they hear from tim morrison, part of the National Security council and curt volinger. Volker. We are traveling across the country visiting key battleground states asking voters what issues they want president ial accounts to address during the campaign. I would like the accounts to focus on what is good for the candidates to focus on what is good for the American People and put our country ahead of politics. One thing that is very important to average americans is the economy and job creation and im hoping there will be a real focus on that. And i believe that the should es of 2020 recognize the massive healthcare facility we have within the whole nation, access to healthcare, 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 emphasis from america on Climate Change and people debating if scientists actually are correct but we never questioned earthquakes or hurricanes but we want to question Climate Change. The reason i believe for that is because we dont see the immediate effects. We are pushing it on our children. I want to see more of this in the president ial election. Voices from the campaign trail, part of cspans attleground states tour. While speaking to reporters on monday, mike pompeo announced that the u. S. Will no longer consider Israels West Bank settlements inconsistent with international law. Other topics included Irans Nuclear program. And protests in hong kong. The secretary was also asked about his support for state Department Following recent testimony from current and former diplomats as part of the house impeachment inquiry. House impeachment inquiry. Good afternoon, everyone. Good afternoon, everyone. I have several statements i want to make today. Starting with a statement about the Islamic Republic of ran. We are monitoring the protests closely. We condemn strongly any acts o