The testimony will be relevant and i will put in the scale in favor of impeachment. We can say they should have gotten a redaction by redaction. Take the unredacted report and go through and make those determinations. You dont think that runs into the walter nixon problem . Again, understand the court saying it is not interested in this argument, but i think if this goes to a high higher there isat will be no reason why we should be putting courts in a position at all, but going to undertake this endeavor, but perhaps with guidelines we will argue about a getrict court, you dont everything, you have to show a and not geted need them grand jury information. How long would that take . Know. Ont i think that would be up to the District Court. I guess im not clear to what the District Court does. The Community Says your honor, it is relevant. The whole notion that the District Court cannot control the senate trial or control documents ordered to be released, this is a question of goesar the District Court and tentatively, theres no reason to take it at you. We know not to take it at face value. That. Use retrenched from i think that is indicative. The jointne on appendix of the Mueller Report in which the special counsel is the investigations are not indicted and there are rejections in that. That is classic grand jury secrecy to protect the rights of people who were investigated, but not indicted. Say wehouse wants to have such a compelling need for why they were not indicted by the special counsel, that is showing the District Court be dumped out. How do they know they are peripheral players . Courts have had more proceedings than the department of justice. We are not expressing any doubt. We are saying this is a request for grand jury information. Rules are there for a reason, to protect marriage fundamental values and the particularized need standard say here is why i need the and they testimony of steve bannon. I doubt if they were put into rejections ofthe minor players in the case, we need the [inaudible] facts thatrrelevant happened to involve grand jury information and it is their burden as the applicant to sort those. We heard a lot about accommodations and agreements. We did make an offer. Not one that is satisfied with what the house is looking for three i think we did satisfy. There was a redacted version. The House Committee always and judgesed those director put [inaudible] washe commendations we made giving the house all the unredacted information that had not been made public. It tos us from giving them. Want to go further . I have nothing further. I am douglas from the general. Ounsel first i would like to thank mr. Freeman for giving me much to talk about. Quickly to get very [inaudible] thing, mr. Freeman is wrong. The decision of the Supreme Court makes clear that much of what he argued right now about particularized needs is absolutely wrong. The Supreme Court said there is no obligation under particularized need. There is no need to go by my line. Rather, what the Supreme Court and i understand mr. Freeman does not like no in venice he prefers they did not sayt, but they do and they largely it is up to the discretion of the District Courts. How could be District Court the District Court make any analysis under particularized need without looking at the redacted material . Again, the Supreme Court rejected that very argument and what she has to do is what the court did in dennis and what the court did indo. Showed is thees obligation of the judge and take into account the factors and make a determination. How does a judge do that without looking at the materials . When the house comes in and invokes the word impeachment as everything. Get does the law say that . No, that is not what we are saying. Lets look at that particular case. About what talking judge how ordered. First of all, we are only talking about the Mueller Report. Limited because it is what special counsel mueller decided to put in his report and all judge how gave us where the redactions, so it is very limited unlike where the court said in order to have a fair trial, they are entitled to all of the grand jury material. All, it is a small part in second, the judge said we will do this in stages and if we look at that very limited amount of material, we can go back in may be at that point, she can do it differently, but the key thing this is vastly more than just coming in and saying impeachment, we get everything. Maybe i did not understand it, how is the District Court judge supposed to do that without taking up the unredacted report and looking at it . I dont get that. How are you supposed to do your risemaking a particular need if you dont read the stuff particular rise to particularized need if you dont read the stuff . All, they did have explaining. It said nothing about the 206 redactions. Second, i think what it shows is [inaudible] understanding what is. Icularized need the Supreme Court has said that means. What it what do you think it means in this case . [inaudible] we look at the needs for grand jury secrecy. Reason for most no grand jury secrecy. These aree court said not going to be used against witnesses who were witnesses before the trial. Unlikely, so it is not that kind of interest. There is nothing less. Again, the Supreme Court decision made it absolutely clear and cannot deny that. Interest what is the that is balanced with justice . This is it. There is nothing more important than determining whether the president of the United States should remain the president of the United States. Asked only fore authorizing the release of the material. It did not ask for an order compelling the department to produce those materials, is that correct . Thee were to uphold authorization by the district , would it be the house that needs to bring a separate suit to force the subpoena . Absolutely not. I hope when mr. Freeman gets back up. He will assure the court. And if just stunning this court rules that the house is entitled to this material, the attorney general is going to say no . Hypothetical. Dont turn it over im going to have to talk to some of this. There were some questions about guess i would use the main remedy that the house has cindyom the beginning and sergeant of arms over to the Justice Department. I cannot imagine anyone is going to interfere with his duty as an officer of the house and he will bring it to the house. [indiscernible] why not avail yourself of that committee . Remedy . Again, this is discussed in the first case. We dont have a sergeant in arms go out and arrest people and. Aybe have a gunbattle instead, we go to court. Thats an interesting point because maybe you could help me with this. I was unable to find any case with which the court had compelled the department to release grand jury information to congress. It involved a compulsory upcess so if you could come with one, i would be interested to hear it. Im not aware of where the Justice Department has opposed congress. This is an astonishing not going along with decades of tradition. Im not sure if that is correct. A novel question on to whether the court has the authority to order that process in a dispute. I would be happy to address that right now. Is there some reason why the house or the senate lets say the senate heads to trial and says we want this material. My understanding is the Justice Department would say you cant have it, even if it is unanimous, youre not getting it and we cant turn it over. Is that not issuable . Is only thing i have heard my friends argument. Again, that is not what rain said. Out, iflleague pointed the Supreme Court were going to newunce such an astonishing rule of law, surely the Supreme Court would say it in they did not because that is not what the case is about. You can point at language. There is absolutely no reason should take a decision that is not about that onen it into whether of the most important constitutional decisions and congress cannot go to court. There is no way they can do that. Surely these judges would. Ant some guidance again, nothing to indicate that. Im not sure it is so amazing. , thee nixon impeachment Dictionary Committee made clear it could not seek the assistance and they went , includingat details this was an issue committed to andhouse in full discretion it is an independent judicial decision could show a lack of respect to congress and theres a possibility of bearing announcements. That was an issue not so long ago. The Supreme Court does not. Ay anything about that it is also exceptional that the house is seeking remedies from the court. The grand jury, seeking , various cases, other impeachments that is my point. It didnt because the Justice Department has now chosen to go against a couple hundred years of precedents. Time grande first jury material was turned over to congress. There has not been a need for compulsion because in the past, the Justice Department knew what it was supposed to do. It is not the materials and possession necessarily. Thosengress received materials for a variety of different means . But what often clear, is clear is the court ordering by the executive branch. It has involved that and in , i think it isse an opinion by judge whitaker and just for aamble moment, the information generated by the grand jurys [inaudible] nor are they entitled possession of such a case. Instead, those documents are isords of the court and that a key ruling a key statement because what is the Justice Department have these materials . The grand jury is not in all of the Justice Department. Awe of the Justice Department. The house and senate will come to the courts and it will be another dispute. It is a dispute only because of some convenience that the Justice Department is holding. Could you respond to mr. Freeman . I asked in the previous case, there have been two articles of impeachment that have been acted upon. Are you here to say there may be a third . I will do the exact same brief, weh is in our tried to be very clear about this. A third . Might be exactly. Both committees said that for two reasons. One, the evidence that comes up might be usable in the senate trial. It could be that this material is useful for us, the house managers and the senate trial. Who are the house managers . [laughter] im glad you asked. Again, it could be useful. Dennis, submitted to the court, obviously not hand as we made clear, the Judiciary Committee will look at this material and decide whether to recommend more articles of impeachment and i want to be clear because i think there was some hysteria. Said,nt exactly what he the Judiciary Committee looked to see whether to use it to recommend, so yes, that is on the table. This is totally different from the articles that were sent over. As we mades not sure very clear that some parts of the Mueller Report relate specifically to things in the articles of impeachment and i it stated in the articles and it is there in the Mueller Report. About thee, it talks concerns of this conspiracy that ukraine was actually behind the election interference and this is a very that President Trump has been using, im not giving money to ukraine because they are the ones that actually did it. It can tie in directly with the thate and theres meetings can tie and directly to why President Trump is obstructing congress. Why is he doing this . Mr. Mueller the president basically saying im done, my presidency is over. Why did he think it was over and how did that relate to why he is obstructing congress . That clearly will relate to the impeachment proceedings. You would ask i think at the about is the case properly here. Just want toi emphasize this, it is totally an articlethis is three function going on just like you pointed out there are situations bodies of congress ,ome to the court for immunity is issuing court warrants, is that an article of the courts come i dont think it has been determined one way or the other. Sometimes it is magistrate , so here we have a situation that has been set up by the Supreme Court originally and it is a special proceeding today. It does not seem like your standard article. It is not part of the article three, at what point it is it part of the supervisory power to order one branch of the government to turn over materials to another branch . Could that be what the Supreme Court has described to aid the grand jury . Implementing the rule six e. Ofit speaks in the language authorization of disclosure. And indeed, your own application did not ask for that. I guess we will have to hear from mr. Freeman. The Supreme Court says does the will itself give the District Court that authority . I need to get the exact language in front of me and i dont have it. Remember, this is a rule. What the court have to if you are saying theres a difference . There is no grand jury secrecy as there is now because of the rule in the rule provides exceptions to itself, so if it fits, the secrecy would not apply. Is Justice Department housing these, again i just find it unfathomable for the Justice Department to say theres no legal ground to continue to hold them, we are going to do so anyway. It is not so much about what the department of justice would do, but about the District Court to order the authorization. I think this is under theorized and so ims interested in what your understanding of that relationship is . I have to admit i have never thought of this before. I think im embarrassed to stand up and say if the order was issued, the Justice Department and itot comply with it says it is ordered to provide promptly. That is not the release you saw in your application. The attorney general would i guess the violating an injunction that is punishable by contempt. Suggesting what you would do in that case, what would happen in a case when there was no process to the department of justice . I guess we would knock on the door of the Justice Department and say im authorized to get this. Im not sure why youre saying it has to do with the Justice Department. They are custodians for the thent and so im guessing Supreme Court would amendable to say from now on the Justice Department has to or you can save the Justice Department will be storing many more. The courts restore these which would be most unfortunate, but again, let me go back to my colleagues. [inaudible] let me go back to the Court Ordered itself. During the hearing, your knowledge you acknowledged the materials regarding flynn could be taken off the table. How is that consistent with the District Court order directing all of the redacted grand jurys . I think that would be a waiver just like the criminal defendant and the court said you have got them and by the way one of the transcripts is 10,000 pages long. I can imagine a criminal defendant saying i dont need that. Are there other things you dont need . That off ofve taken the table . In the transcript, the District Court asks all the i have to go through this witness by witness and your response is no. Decision , the the District Court knows it doesnt need anything, yet it gave you mr. Flynn. Thehere was plenty of itire grand jury record and would not undermine the validity. This might also be a time where it is not really much there. Im holding up to you, you can area and, giant, dark that is grand jury material that has been redacted, so it is not just some footnotes. One of the footnotes appears to be grand jury testimony of mr. And this reminds me another part of what the , that it beeed is several of the people involved and so the grand jury material we think is externally useful in figuring out who lied to special counsel and maybe therefore is lying to congress. That is another reason why this is particularized that she focused on. Serious also raise if it isional issues there is nong , soption for impeachment rule 60 would impose secrecy, but provide no ability to get the material. That would obviously bring constitutional problems if the house and senate are conducting an impeachment trial that the house managers are presenting and if Congress Said as in these other cases we have the grand jury material here and we want it, it would raise very serious questions about the constitutionality that the Supreme Court saying congress cannot under any circumstances material. Jury that would raise a constitutional issue. Where does congress get the right to grand jury information . Impeachmentting an inquiry, congress has a right to any information. Is it an enforceable right to any information . Again, that is what you and i talked about earlier. Yes, there was nothing in the separation of powers, nothing in article three that says it comes anywhere close to congress in ing in forcing enforcing. [inaudible] the alternative is we can do one of two things. We can send our sergeant of arms , we will arrest attorney general barr time he is there, we will arrest him and we can go about it that way or, we can shut down the government. Shut down the government for a couple of months. Why would the courts want to say tot this doctrine requires send out its sergeant of arms to ,hysically arrest executives cabinet members or shut down the entire government . I cant see where that would possibly come from. Im assuming you heard the argument from the department in this case and what did he say . Chief justice is eloquent on. Nowhere does he talk about congressional investigations which as we know for many decades have been enforceable. This is an impeachment investigation, not a legislative investigation. So it is even more important. It is more of a political question. The courts cannot tell congress, cannot tell senate how to conduct a trial. Hat is totally different it is in the heartland of our experience. Point thaty making a cuts against you. Powerdifferent sort of being exercised by the courts then is the larger issue that you are speaking to whether congress can resort to the courts enforce information given to the executive. For thisued a subpoena information, so if we want to suddenly say you cannot do this, of course it would be enforceable. That would present another question like the litigation pending. It probably would. 6e change thate inquiry . It was at one point passed by congress. The Supreme Court could change at any moment. Im aware. Reason is the justice. Epartment has this material these are records of the grand jury which and it is not an arm of the executive branch. Also not an arm of the courts, it is its own entity separate from all three branches. The dissenting opinion said they are guardians of records of the court. The Supreme Court didnt decide this issue other than to say the grand jury is a separate, constitutionallybased entity but not an entity of the executive branch, no doubt about that. Why this is an interbranch dispute only because of this oddity. If it is only the oddity of rule solutiont the authorizing and ordering disclosure . It just puts it back to an interbranch dispute and gets the courts out of the way. If rule 6e is the only thing preventing you from getting the materials, authorization should be sufficient. And you can bring another suit to enforce the subpoena, then the department of justice cant stand behind rule 6e, they may stand behind other arguments but they cant stand behind the rule. If you say the rule is the problem, we can push aside the rule. Ofim hardpressed to think what argument the Justice Department would raise, why records that are not actually res theirs but you havent made an argument about why this court should order the department to release of the material. That is separate from rule 6e. The reason you should order it is that i think everybody understands this is how it works. Caseere is not a single where a court has ordered that type of remedy. [inaudible] the courts to order that remedy all the time. But it is usually where there is a criminal defendant or someone else who clearly has standing and all the other articles for requirement. Here the question is more murky. No, because you have said the courts have authority to issue an order about grand jury material. Said courts, dennis are constantly ordering disclosure of grand jury material. So if they do that, the only reason it wouldnt happen is if the Justice Department decides, we are going to defy that order. But the power to order might be different in this context, where it is the congress that is seeking materials and there is an interbranch dispute. It might be arguably different from a case in which a criminal defendant is seeking that material. But i thinky again, we are going around and around. It is different. This route the Supreme Court has made clear disclosures within the government are much easier. That is clearly recognized. This is a disclosure within the government. There is a presumption of regularity by the Judiciary Committee. The Judiciary Committee has still not released the watergate map, to protect grand jury material when it needs to be protected. So the interests in secrecy are even lower than normal and judge, it seems to me that our argument that because this is for impeachment, there is no greater need than that, and therefore the need is overwhelming. And it cannot be there is nothing in any Supreme Court thesion that would support notion that the executive branch can refuse a court order or a court authorization, and the notion that the executive branch thereby thwart impeachment. That would be completely inconsistent with why the framers included impeachment. And this was discussed, the framers thought about not including impeachment. They put impeachment in. Every other president has cooperated with impeachment investigations per this is the first president who has not, and that is one of the articles of impeachment. He is doing something totally unprecedented. The house is seeking Court Assistance to get this type of material. History cuts both ways. Because the Justice Department, for decades, acts responsibly, and suddenly this Justice Department decides to change what it has told this court, what it has done with other courts, and suddenly saying all three branches have been wrong for decades and decades, they had no idea what they were doing, we are here to tell you we cant turn it over to anybody. And it is so clearly wrong. Anything further you want to cover . Im sorry. Or, no need to apologize. Im sorry, your honor. No need to apologize. [laughter] i am going to be very brief. In d. C. Circuit judge held mckeever what was meant in holman, it cant be any more clear, and it was required as part of its decision. I dont get this argument. You can say mckeever was wrong, you can say holman was wrong, obviously the Justice Department cannot make that argument to this panel but they could argue it somewhere else. Holman was, they say a mandamus ruling, but no, one of the things the court said there was that judges a wreck at acted within the bounds of said the judge sirica court acted within the bounds of said judge urt sirica acted within the bounds of the law. I will look very quickly here. Mr. Freeman was wondering about im hereides, representing the speaker of the house of representatives of the United States, the number three constitutional officer. Yes, i have discussed this with her. Yes, im authorized to say these are the positions of the house of representatives. I think the case was barnett about a year ago, this court accepted representations of the house general counsel as the positions of the house and issued a decision upholding this, this had to do with the house chaplain, upholding that termination based on the representations of the general counsel for the house. At theeman said we are same place we were at the first day of congress, that is not true. The Judiciary Committee has gone through any number of actions, house resolutions, etc. , this investigation is authorized and thee is nothing to say Judiciary Committee on the Intelligence Committee are no longer authorized. The last thing i would like to say, i think mr. Freeman ended with this but i would like to emphasize it. There cant be any accommodation because the argument that the Justice Department is making is that they are prohibited by law from giving out this material. So there has been no accommodation. Accommodation is about letting us see other stuff, well, that is not an accommodation. There can be no accommodation according to them, because they are barred by law. They would be putting themselves at risk of contempt if they share grand jury material with us, is what they are arguing. So the accommodation argument, they would agree with me. Thank you, your honor. I appreciate your patience. Thank you. On the merits of the particular needs standard and whether the court should look at the material in camera, that is the case, the john doe case, that doesnt stand to the proposition, that is the case at which for witnesses testified at a criminal at which for witnesses four testified at a criminal trial and said it was likely the testimony was inconsistent with grand jury testimony, so there was access to the grand jury testimony. Congress ought a fight that in , the point where their particularized need was evidence was evident from the face of the trial. Other circuits, including the 10th, fifth and the seventh, the grand jury, and i forget the fifth circuit case, it helped, District Courts are required when you dont have that kind of showing to look at material in camera. Those are not impeachment cases. Right. And this wass, what the judge was trying to get that anll, the notion impeachment proceeding is different for any number of reasons. It does force you to deal with that. We agreed the particularized need standard is a flexible one that can take into account that. A it may be different than in criminal trial, where the defendant is seeking grand jury transcript in order to impeach a witness. But it does not follow that everything they say they need, dontet, or that they have to make some particularized need. The question is, what is particularized need . It is a minimum requirement for an impeachment setting. That would be a very profound statement. No. What im trying to get at is that you have an arm of government conducting an investigation. Analogy, but to the fbi, thats like saying you can investigate all you want, but you are not going to get the grand jury transcripts that might assist you in your investigation. That is extraordinary and that is what the house is arguing. I agree that is what they are arguing read i want to make the point that this wasnt at issue in the habit and associates case. The California Attorney general wanted the information and said it had a statutory right to what we dont know, and the Supreme Court said the particularized need standard held in that circumstance. My question doesnt suggest it doesnt. My question is, what is the substance of that requirement in impeachment . What the house has argued is that it is the same as need, and that is not the case. We asked what was required here. Heard my friend answer that question several times, what does the particularized need standard require . It is flexible. The court says that, but they wont say anything other than the house needs it. And they argue that if they dont get the information they need, that is a constitutional problem in rule 6e. My friend says there is a constitutional right because of impeachment power to get this information, and i find that astonishing. Congress passed a statute in rule 6e that says, in no circumstances shall grand jury and information be available for impeachment, and they are not going to pass that statute, do we think it would be constitutional, of course not. Its just who has access to it and when. And our argument is that the statute congress enacted does not provide access to this information. The judge earlier asked circuit but the inquiry in District Court raises profound constitutional questions. The answer in that circumstance might be, you strike down the rule is applied in that circumstance. We will go there because we think constitutional avoidance should take you away from that. But if you think it does cover the circumstance, it forces the question the Supreme Court confronted in the walter nixon case. If there argument is that a standard,ized need places the District Court in the position of being evidentiary very evidentiary gatekeeper for a senate trial, that raises questions. That is not a conclusion the court would have to reach. Id know you want to explain it that way, but it wouldnt be necessary if we were to reject your argument, to frame it that way. Because we dont know what evidence would come forth. In order says someone shall comply with the subpoena. Then they appear, refused to citing privilege, etc. Who knows where it would go . We dont get into that, if we sapped if we accept the committee argument. Everyone wants to push us into this political battle and in some instances they may be correct, but i dont think we arerily it means supporting their position. But you say you dont say this case is nonjudicial. I would like to make two final points. Congress ought to enact a statute, rule 6e, that provides this information in a way that doesnt put the District Court in the middle of it and doesnt make the District Court evidentiary area gate. Evidentiary gatekeepers. It is not a violation of the separation of powers, it honors the separation of powers to say the house should abide in litigation by the choices it has made in legislation. Point, we are not in the same position we were a month ago. There are articles of impeachment and a District Court finding of need affected a concern that is no longer present. Bracketedct court off the ukraine controversy comb the findingsy, so of a particularized need is not support the use of this information from the grand jury. Didnt sayrict court it would not be relevant in any articles theo house might return. I agree. Im not suggesting the District Court might not say they have a particularized need, but it would be a different need, and the need that they found, which was to use the information in impeachment on the basis of conduct and the Mueller Report, does not support that finding. I want to be clear about this. Saying it is is relevant information, and they explain why. And they should make that showing to the District Court. And the District Court has already found that the subpoena is designed to enable the committee to make a full and fair determination on the basis of all the evidence. Hypothetically, it gets the information and it realizes it shouldnt have done one of the articles. Or it gets the information and it realizes it should have done more. And you are saying this situation is fluid, i get your point that the ship has moved on, but it hasnt left for its destination. The District Court said the information was needed to form a conclusion about the president s culpability for conduct described in the Mueller Report. Only goes to, if there was a remand, what it would look like. We think things have changed. Unless there is anything further . Thank you, very much. [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] campaignl have more 2020 coverage this afternoon. President trump holds a rally in miami with evangelicals, coverage starting at 5 00 eastern on cspan. On cspan2, president ial candidate Amy Klobuchar talks at a town hall in cedar rapids, iowa, at 5 30 eastern follow coverage online on cspan. Org or listen with the free cspan radio app. Book tv isiday week, on cspan2 every day with primetime features each night. Donald at 8 00 eastern, trump junior and his book triggered. Unlike so many of those on the left espousing the virtues of communism and socialism, it is no longer a fringe element, it is mainstream pop culture. Unlike them, i have experienced it myself. I have actually been there. Watch the special airing of book tv this Holiday Weekend every weekend, on cspan2. President trump spoke this afternoon about the u. S. Killing of a rainy and general cost some liemani. Ey quasem su the president made the remarks at maralago
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