Transcripts For CSPAN2 DC Circuit Oral Argument On Mueller Investigation Grand Jury Testimony ... 20240713

Since the last oral argument in this case the committee referred to the house of representatives, the house of representatives approved two articles of impeachment. Neither of those articles arise out of the events investigated by the special counsel nor the events described in the report of the special counsel land we are here today facing a different claim by the committee, for some political reasons pages 13 to 17 of the supplements a brief their argument is they need the grand jury information to prove in a senate trial on the articles of impeachment approved by the house, the president s culpability for those high crimes and misdemeanors. There are a couple problems with that. The first is that is not what the court found in this case. The court knows we have significant concerns, we dont think she applied to test at all but put that aside. What the District Court found was the house of representatives was acting preliminary to a Senate Impeachment trial on misconduct in the Mueller Report and they had a need for that information to prove that misconduct. If you look at page 67 of the District Courts opinion, the District Court says the need is to investigate fully and form a conclusion about the president s conduct described in the Mueller Report and as a footnote after that, what that footnote says is the House Judiciary Committee confirmed although there is a separate discussion about ukraine. And on the mueller investigation. The departments position is the committee would have no standing to enforce its subpoena directly in court. How does will 60 change that. It is not just social and there will not be standing. How does route 60 change that. We boil the oceans to figure out how courts have understood the relationship between the District Courts authority for grand jury records under the rules and article 3 controversy requirements. The court knows we have not been shy about making objections to the standing of congressional entities in the executive branch going back to the harry myers case. Here is how we understood fool 16. Acknowledging there is not a lot of authority either way but we understand will 16 to reflect the chief judge, the District Courts continuing Supervisory Authority over a grand jury convened under the opposite of District Court and managed by the District Court. And williams the Supreme Court says that Supervisory Authority exercises over a grand jury but it has to at a minimum include convenience and we think rule 6 the reflects an understanding that part of that Traditional Authority the Supreme Court described as part of the judicial power of the United States has been the management of the records. If management, by the terms of will 60 allows authorization is a your view that the rule itself or the Supervisory Authority of the District Court also allows District Court to compel the department to produce both documents . It is true. Distinct aspect of the report. We have not challenged the District Courts ruling on the basis that rule 63 e1 says may authorize disclosure or compel the disclosure. I think that is just the way the kids have evolved that that includes the power to direct. If we look the provision, the judicial proceeding exception but the second one at the request of the defendant to show misconduct with the grand jury, the District Court could authorize it by the department of justice would say we dont want to turn information over to a defendant in that circumstance. Isnt the standing inquiry arguably different, the criminal defendant is standing so if you view the compulsory process as part of article 3 power as opposed to rule 60 power. If you the house standing is much less clear. I am explaining a historical empirical matter why we didnt make the objection and just like there are rules providing fees or other things and ask a District Court to do something and to appeal that but anyone can come in to exercise existing jurisdiction under judicial power and ask the District Court to do something with the courts record and no court ever denied the house access to grand jury materials. There is no example of that. Our understanding specific to the house. Our knowledge, courts have not said two parties coming in and asking for an exercise of discretion with respect to these records but in this case the reason it is a case the court needs to reach in this case the report needs to reach the article to standing question the committee was permitted to ask and with the District Court did is direct the United States materials and we have two separate things. The committee only sought authorization. The concluding paragraphs of their application asked the court to direct them to do so. You think that is part of the supervisory power of District Court. When a court commands as well as of justice to release documents do you think that is part of the supervisory power for grand jury . This is subject to the caveat in the discussion, i think the upshot what is your. . It is encompassed in the District Court Supervisory Authority and that is how courts have thought about that but if you disagree about that the implication, effectively commencing a new civil action in District Court and similar to the position we are in this case, and institutional they need the grand jury. The dependent position, if we simply uphold the authorization that you believe the house would do, you cannot just release the information. I would have to take that back to the department. Moving back to the merits. The adoption of the articles of impeachment changes issues in this case in a couple fundamental ways. The first as i mentioned that is not the need the District Court found. It is incumbent on the District Court to make the final instance, that the District Court found in juxtaposition to the ukraine controversy which is adopted in the articles of impeachment so that is one. The second, affecting the outcome of this case, the committees response of this court to do in response to the articles of impeachment underscores the reasons, the constitutional problem that would be created, the Senate Impeachment trial and look at what the committee wants the court the department of justice always took the position, it was a judicial proceeding. What changed . As the court knows for the last decade, to reexamine the proposition, in that manner, with the argument they have been making. In the mueller investigation, it has to be read as a statute. And outside the terms of that statute, when this case came up, they are briefed on both sides of the question. For all the reasons in our brief, does not permit reading the Senate Impeachment trial proceeding under the terms of the rule so reading the rule, it isnt a judicial proceeding. We do think congress could enact an amendment to provide grand jury information that wouldnt require imposition of District Court or showing a particular need like some of the other provisions under rule 15 but the committee coming here, the impeachment trial, we are particularized for this information and if you look at the inquiry the committee wants to conduct in the wake of new articles of impeachment, at footnote 928 on page 59 of impeachment report, they use this information in the senate trial and they want the court to find the house of representatives, a particularized need to have certain information to prove the president s culpability for high crimes and misdemeanors. They set the rules whether that information was relevant and how the trial will be conducted in the first place. It is just like the prior case. Whatever the court says about that question if they were to answer it, they have a particular need for this information in support of impeachment article 1. Article 2 and i am not quite sure what it says, the court knows article 1 focusing on the fact the committees argument, it is still information, the two articles as found. I want to talk about the merits of the clean need. The plaintext and by their admission, it has a different meeting in rule one in the first part. A lot of history up against you and alexander hamilton. They give the story on that. To decide what they think of this, there is a different question about whether you describe impeachment as the judicial exercise under the constitution and that is federalist 65 and the question of the procedure when it says the judicial proceeding you want to read the word court into their but it is not there. It is an oral argument and it doesnt say court. Not in the critical language we are looking at. Rule 68 set the procedures for how the judicial proceeding application worked and it refers and assumes courts are in judicial proceedings. If you look at 60 after i believe it is which is the procedure of what to do if the judicial proceeding where information is needed is not the same court as the court that presided over the grand jury. They transferred to that court. No one thinks chief judge howell should have transferred the position to the senate because it doesnt make sense even though the senate in a historical sense may have understood the action of the court. What is the statutory argument . I dont think it is closed. Let me explain why. Mckeever was addressing whether there is Inherent Authority under real 68, the argument on the other side, it is an Inherent Authority and the response was a petition that has been understood by the court to speak to judicial proceeding and that is what the court said, in the judicial proceedings that doesnt answer the question whether haldeman had precedent for the correct reading. What it answers is the question whether the denial of the petition was with respect, the court knows it is a conclusion that the petitioner was is clearly indisputably right. Mckeever understands that. Is in that binding enough . I dont think. The judicial proceeding. Mckeever understands what it is doing, haldeman was a with digital proceeding. A host of questions and a 3 paragraph order citing the standard whether that was affirmative about the correct meaning of rule 16 and the reason not to conclude that is a profound constitutional concern permitted by the reading of the rules. The plaintext of the rule, conditions being imposed on parties to ask for grand jury information. They do not deny this, could not be applied to the house where the petitioner wouldnt be subject to next with the textual power of rule 16. It makes part of the statute constitutionally in operable and you say thats not the regular statute. The second concern it creates is the one we are about to be put in, the particular need of standard that requires the court to find a gatekeeper. It makes sense if what is happening. Is that standard change of impeachment. In past instances, watergate, clinton, there was concern of parsing, everything they found they turned to the house. Why shouldnt the history of how grand jury materials handled in and impeachment help us understand the particular needs here. It is an example, in the clinton case there is a separate statute over impeachment related information to the house in the nixon case, the court knows the prosecutor was supported by the grand jury to give information to congress and that is when the petitions came up and said there is no applicable exception and no Inherent Authority and the court denied the petitions. In either even a particular id standard was reached and to answer your question directly. Dig judge silica make a mistake by not going to the grand jury material and said we did not need this . I think should he have . Let me explain why. In the argument in this case they are like any other judiciary. Used for impeaching and here the rationale in finding this court says you dont need to add anything essentially. Which we discussed with that analysis. Im not sure that is right. That is what the court said. The handling of issues that were enumerated. We do not disagree with anything in particular. It is conspicuous the Haldeman Court went out of its way not to make a point that the court made. Factual reading and the court said we dont need to say anything more because we are in general agreement so try to understand and interpretation of all of this. I understand you want to back off most of those either not binding on us or is ambiguous or simply didnt reach the question that is here. We think this is the first case in any circuit in which you have appeal on the correct meaning of judicial proceeding and impeachment trial. And haldeman denies that. The court findings, seems to me didnt go potentially witnessed by potential witnesses but did make the argument that the Committee Found it wanted to have a fool and fair proceeding, the evidence before it, before the Mueller Report in part one and particularly in order to determine the nature and potential extent of any president ial action that would be impeach up. And the Mueller Report itself stated it wasnt able to reach a conclusion with some of these critical points. In order to have a fool and fair understanding of what was before the Mueller Report and make its own determination it needed to see everything that was there. Yes. And impeachment cases it seems to me, the question of getting to a different framework, we heard a lot about Justice Souter, old chief Justice Souter made it clear, to try the case soon, the same analysis i am getting at here. I have a number of thoughts about the piece. Let me take a couple of this points in order. I agree with the courts characterization of what chief judge howell did in the 6 or so pages, particular need is from fool and fair impeachment proceeding and that is the basis that was descended in this court. The Mueller Reports that it couldnt reach a conclusion. The Mueller Report also said the evidence in the report very small portion. We dont know that, the committee doesnt know that. As part of the accommodation the department of justice made available to the committee. 2 of the large number. The redacted pages are reduced here beginning on page 503. Most of the redactions are citations for propositions stated in plaintext. Why so and so said such and such. We all know a single sentence can be devastating and can lead to exculpatory and incriminating evidence. The percentage is not positive. They are looking to the question of whether they need the information, not just the need but a particularized need for information to prove something with respect articles of impeachment. This is not just a fishing expedition. Maybe we will find something relevant. What the District Court did, the court knows the only time the Court Pressed counsel to explain the need for redactions, the house says they didnt need it and District Court gave it to them anyway. It had to do with Michael Flynn and there are other redactions on volume 1. We should not evaluate a particularized need. It applies, how should the District Court District Court should have gone through a redactions. The 6 or 8 redactions regarding Michael Flynn, had the house explained the redirected report. We were willing to give the District Court the unredacted report, finding a need with respect to impeachment, if the district record, the unredacted report to the District Court but she didnt have the unredacted report and in the first go around. In a certain way, when the case came in the committees petition was mostly focused on obstruction of justice and we thought they were looking for volume 2 so we had a declaration that explain all the underlying redactions, gave them to the District Court and pursuant to the court order, testified before the grand jury the original premise of the petition would not supported and the case morphed into the committee moved the information in volume 1 to find information in volume 2 and for that reason we never got to the point in the hearing where volume 1 was submitted in unredacted form. We would be willing to do that. Something like a redaction by redaction, looking at what the house needs. How is that consistent with the constitutions commitment of impeachment power solely to the house and with walter nixon which suggests courts should not be in the business of aiding and assisting in the impeachment. Not to say it isnt consistent, the reason it isnt consistent is it isnt a case, the 60 petition is nonjusticiable but we think the committees view that and impeachment proceeding of the judicial proceeding puts courts in position of making judgments they are not equipped to make and under the constitution should not be making and it definitely puts it is a judicial proceeding. Doesnt the Court Precedent allow some flexibility on particularized need depending on the nature of the party seeking the information . The court would reject the premise that anything the Government Agency there or government actor is necessary to acquit or perform responsibility is for that reason a particularized need. That is the houses position but the particular standard is flexible but it is always required, not a particularized need but if you come to court and say my particularized need is something any defense attorney or prosecutor any case could say i want the information handy just in case a witness is lying, i want all the Information Available to make the best possible decision. It is not a particularized need and the court would not accept that for any judicial proceedings. Impeachment is different. Impeachment is different. The constitution conferred that power on the house. That is a reason to reject the premise of the petition. If you get to it, if you conclude notwithstanding the constitutional problem it creates the we have to answer those questions you have to be careful about what the particularized need is. It cant be a discovery for impeachment and does this go back to just disability . They have it both ways. They want it where you want it. But not at the threshold. It is not on any ground. We have taken a principal position, we dont think in fairness, we are quick to pull the trigger on this, it is nonjusticiable but the committees argument raises constitutional problems. That the reason to reject that and the court could conclude it District Court couldnt appraise the particular need in this circumstance and they may be filed by the house if that is the courts view of the threshold question, the point at which the house adopted articles of impeachment and the District Court judgment for a particularized need for certain evidence in the senate trial and that question does depend on the senate prerogative. This is a very anomalous situation but back to where i started, the house has adopted two articles of impeachment that have nothing to do with the premise of this case. They concern the events that occurred after the Mueller Report was completed and all the house will say is two things in the senate trial, if you look at the impeachment report issued by the committee, if you search the impeachment report, any witnesses discussed, the trump tower meeting, they dont appear, the only place any of this appears is in two pages at the end of discussions of article one of impeachment in the section entitled prior conduct, one paragraph in which manafort and wikileaks i mentioned, the 2page session after 120 pages of merit discussion is shedding light on articles of impeachment. What about the position, considering other articles of impeachment ongoing . Let me say a couple things about that, the representation by house lawyers in this course, that there would be articles of impeachment if they got the information or the house prosecutors dont say that. I thought i heard them say that. They were carefully scripted in the mcgann case in this case which they say they would consider whether to have other questions considering whether to do new articles of impeachment. Lets take a separate question from a different angle. The articles of impeachment approved by the house itself, the actual voted on articles of impeachment come in article 2 the house told us what the point of the inquiry was, the house has conducted them in impeachment inquiry focused on the president s alleged talking about those in particular, it doesnt say that. Not that they moved because they cannot but the house is coming in and telling you similar to a judicial proceeding on the conduct of the Mueller Report, the court needs to have something about the conduct of mueller described in the Mueller Report before they invoke this mechanism. I dont understand this argument. This is the counsel representing the committee on behalf of the house. It is not a casual remark. Of course. What they are saying is look at what they are saying. If they come into District Court and said it is possible we will consider whether to impeach so we would like a petition to be granted as preliminary to the Senate Impeachment trial that petition would be denied. The department before the District Court raised objections after the point, counsel said we will take that off the table, the Department Said to the District Court, you must go witness by witness, line by line. In our brief send in District Court the particular standard we understand that. Did you raise the precise objections . I didnt find it in the transcript of the District Court. You are more familiar with the record. I dont think the District Court did, the fact the District Court ordered disclosure of rejected grand jury information, the house has no need and we think it is mistaken in the matter of law, but that is more than ample basis to appeal that. What im trying to get you to deal with is ignoring what the House Committee said. The House Committee said they want to do a full and fair impeachment. A full and fair criminal case, full and fair civil proceeding would not be sufficient basis under any account to succeed. The 11th circuit disagrees. I think they were wrong about that. There is a circuit that disagrees with Justice Departments interpretation and impeachment is a different that was not litigated in that case. They ordered all and candidly the last time, you pointed out the department of justice often believes these things in the course of trial, grand jury transcripts. Grand jury is information to be used. I think you can say it works of the house says we are done in the impeachment inquiry. That is not what the house is saying. I agree that is not what the house said but the power to impeach with respect to the mueller grand jury, the same place we were the first day of congress. Is an indication of pattern practices. They submit this information, this is for use in the Senate Impeachment trial, that is not the need the District Court had. They found the need for this information for the Mueller Report but what they say now, four or five pages of supplemental brief, they might impeach again. If they want to use it in the Senate Impeachment trial, they are able to do it in District Court explicitly bracketed off that question. You said you want the District Court to carefully try to figure out what information the house should view in its impeachment but you think it is permissible under walter nixon. That is a view of what is to happen. That is your view as we look at the threshold question. Your view of the District Court needs to dig in and figure out what is necessary. There is a prejudgment of what is relevant to the Senate Impeachment trial but at a minimum what they need to be saying, they have not just the need but a particularized need, the only need they cited this information for to shed light and consistency with prior practice after 120 pages of the discussion of evidence, my cause of action a very different type of case. I agree but it is their position they fit in like every litigants and they cant have it both ways. They cant say this is a judicial proceeding like any other but we are entitled to not have to satisfy the standard that has governed these proceedings. The judicial proceeding, impeachment of the president of the United States, a solid action taken by the house of representatives except for declaring war, the most solemn action in District Court is saying if we are going to air here on the side of giving them more, not less as was done in watergate. It is a gold standard. You may not agree with that. If the report said. There is a close question, witness xyzs testimony, i will put a thumb on the sale and say in favor of impeachment which she did with everything and we could say they should have done a redaction by redaction basis. Your point is what she needs to do if you lose on the judicial exception issue is take the unredacted report and go through and make the determination. That runs into the walter next in problem. It may depend on the walter next and problem. I understand the court to be thing its not interested in this argument but that is why the premise of this case is mistaken. If this case goes to a higher court that would be the lead argument that there is no reason we ought to be putting District Courts in this position at all but if we are going to undertake this, sensitive to those concerns with guidelines we will argue about in District Court, District Court at a minimum, you need to show a particularized need and a group of redactions means a particularized need for grand jury information. How long does that take . We are prepared to proceed. I think it would be up to District Court. Not clear on what the District Court does. That is not relevant. The Committee Says it is relevant. So the whole notion District Court cannot control the senate trial or control documents it was ordered to release, this is a question of how far in the District Court go when a representation is made. The representation, we know not to take at face value. The house what . The house retrenched in that, they backed off of that. That is indicative. To give an example looking through other redactions, one on page 649 on the joint appendix, the special counsel is explaining why peripheral players in the investigation were not indicted and that is classic grand jury secrecy to protect the rights of people who were investigated but not indicted. They were described in the text of the Mueller Report is peripheral players, not the other players we discussed. If the house wants to say we have such a compelling need to know why peripheral players were not indicted by special counsel we were entitled to this information that is showing the District Court to be dumped out. How do they know the peripheral player . It is clear. Two District Court had more faith in the House Committee proceedings and protocol than the department of justice. We are not expressing any doubt in the faith of the committees proceedings. We are saying this is a request for grand jury information. The rules are there to protect fundamental values to the Google Justice system for example protecting the right of the innocent to be investigated but not indicted. The particular needs require the applicant to say here is why i need that and they say they need the testimony. Steve bannon even though steve bannon doesnt appear in the impeachment report i doubt if they were put to this test, if they would say we need these redactions regarding Michael Flynn or minor players in the case, or regarding the russian sovereign wealth fund, these are irrelevant facts that involve grand jury information but irrelevant about impeachment inquiry and it is irrelevant to sort those. We heard about accommodations, that happened here as well. We made accommodation. But not one that is satisfied what the house is looking for. We did satisfy what the house was looking for. There was a rejected version. This could happen here as well. The House Committee already passed those protocols and the District Court faced them and the chief justice put some faith in the committee, handling such sensitive material. The accommodation with respect to the Mueller Report giving all the unredacted information other than grand jury information. Other than the grand jury information, we are barred from giving it to them. Wants to go further or shall we hear from the committee . Thank you. May it please the court, i am douglas letter from the general counsel of the us house of representatives. With me at counsel table, we have general counsel in the house and the deputy general counsel of the house. I would like to thank Mister Freeman for giving me so much to talk about. I love seeing a lawyer doing this kind of stuff. I want to get quickly to the questions at the beginning but it is essential because we spend so much time on this. Mister freeman is wrong. The dennis decision of the Supreme Court makes clear that much of what he argued about a particularized need is absolutely wrong. The Supreme Court said there is no obligation to do an inspection. There is no need to go on byline, rather what the Supreme Court has said is cases like self engineering and dennis and joe, i understand Mister Freeman doesnt like joe and dennis, he would prefer they didnt exist but they do and they say courts dont have to do this. This is largely up to discretion of the District Court. How could the District Court make any analysis under a particularized need without looking at the unredacted material . She is flying blind on this. The Supreme Court rejected that very argument and so what she has to do is what the court did in dennis and what the court did in go because this was not done in the dough case that we heavily rely on. What those cases show is the obligation of the judge to take into account the douglas oil factors and make a determination and how does a judge do that . It seems to me the force of your argument, invokes the word impeachment that it is a mantra. Impeachment, therefore we get everything. Does the law say that . I understand your concerns and that is not what we are saying. Look at this specific case. We are only talking about a very discreet disclosure. We are only talking about the Mueller Report, all of the grand jury information. It is limited because it is what special counsel mueller decided to put in his report and all the judge gave us were redactions and the underlying transcript about those redactions. Where the court said we have a fair trial, the defendant is entitled to all the material. Now line by line is necessary. It is a small part. Second the judge said we are going to do this in stages. If we look at that very limited amount of material we can go back to her and at that point do it differently but the key thing is this is already vastly more limited than us just coming and saying impeachment, we get everything. I didnt understand it and that could be the case. How is the District Court judge supposed to do that without picking up the unredacted report and looking at it . The Supreme Court said you dont have to do that. How are you supposed to do your job with a particularized need if you dont read this stuff . The gold standard, have you read the whole thing . A couple response, judge howell did have an affidavit from the Justice Department explaining. Volume 2, 5 pages, nothing about the 206 redactions and second it is because this shows Mister Freeman is wrongly understanding what particularized need means. It doesnt mean we have to show page 14 of the grand jury transcript line 7 i walked that line so that i can impeach at trial witness lois lane. That is not what the particular rise what do you think it needs . In this case. What it means is a balance. The need for grand jury secrecy, as the Supreme Court pointed out, they have almost no reason for grand jury secrecy. Second the court, the Supreme Court said these arent going to be used against witnesses before the grand jury and at trial. That is extremely unlikely to happen for the senate so it is not that kind of interest. There is almost nothing left on the balance of grand jury secrecy. Supreme Court Decisions make that absolutely clear, cannot deny that. You cannot stand appear and deny that. Secondly, how does that balance with the interest of justice . This is the most, 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. You asked for authorizing the release of material, did not ask for an order compelling those materials. Is that by the District Court to vacate the order compelling the department to produce that information would it be the house that brings a separate suit to enforce your subpoena . Absolutely not. Clearly i hope when Mister Freeman gets appear he will assure the court. He had to take the question back to the department. That is stunning. For this court rules that the house is entitled to this material the attorney general is going to say im asking a hypothetical. They dont turn it over. This is a little before the prior panel. Either we could bring an action for subpoena for enforcement but there were questions i want to get to in a moment so we would use the main remedy the house had from the beginning. Send the sergeantatarms to the Justice Department. I cannot imagine anybody at the Justice Department will interfere with him doing his duty as an officer and he will pick up the grand jury material and bring it to the house. You do have some method of selfhelp. The failure of that remedy the reason is obvious. That is why, that is why, again, discussed in the first case, why we dont do that anymore. We dont have the sergeantatarms arrest people that have a gun battle with the security deal. Instead we go to court, everybody has recognized that. We go to court. Help me with this. I was unable to find any case in which a court compelled the department to release grand jury information to congress. That is the example in the amicus brief involved in the compulsory process to the department. If you can come up with what im will be interested. I have to make sure. Im not aware of a situation where the Justice Department has opposed. This is an astonishing situation, not going on with decades it is the first time, not sure that is to order the process in a dispute. Im happy to address that. And is there some article 3 reason . We have to leave live coverage of the Dc Circuit Court of appeals case on the grand jury materials to fulfill our decades long commitment to live Senate Coverage on cspan2. This oral argument will continue live online at our website, cspan. Org. The senate about to gavel into begin the second session of the 116th congress, no votes are planned but we spent remarks the two leaders, Mitch Mcconnell and Democrat Chuck schumer. Now live to the floor of the u. S. Senate on cspan2. The presiding officer the senate will come to order. The chaplain will lead the senate in prayer