test captions copyright national cable satellite corp. 2008 a particularized need. i think if you come to court in a 6-e petition saying my need is something that any defense attorney or prosecutor in any criminal case could also say, i want to have the information handy in case i know if a witness is lying, all of the information available so i could reach the best possible decision, that's not a particularized need and this court would not accept that for any other judicial proceeding -- >> maybe this is different. impeachment is different from other proceedings. >> impeachment is different from -- >> and the constitution confers that power solely on the house. >> and i think that's a reason to reject the premise of the petition. if you get to it and conclude that -- notwithstanding the constitutional problems it creates we have to answer those questions, then i think we have to be extremely careful about what the particularized need is. it can't be that 6-e is a discovery rule for impeachments. that's i think how the house and the district court -- >> doesn't that go back to jushibility. you want the constitutional arguments where you want them but not at the threshold. >> i'm not here on any ground. but let -- we've taken what we think is a principle position here, which is we don't think in fairness, even though we're -- i'm usually pretty quick to pull the trigger on this, that the case as a whole is nonjus tishble. but the committee's arguments on the merits raises problems and normally a reason to reject a statutory interpretation. the court could conclude a district court couldn't appraise the particularized need in these circumstances and could conclude, although a 6-e petition may be filed by the house if that's the court's view of the threshold question, that at the point at which the house has adopted articles of impeachment and the argument by the house is, i want the district court to give me a judgment that i have a particularized need for the use of certain evidence in the ensuing senate trial, that that question does go on the senate's prerogatives. this is an anomalies situation. i want to backup where i started, which is the house has adopted two articles of impeachment that don't have anything to do with the premise of this case. they concern events that occurred after the mueller report was completed and in its supplemental brief, it will say it wants to use the information in the senate trial and then if you look at the impeachment report issued by the committee, if you search the text search the impeachment report for the names of the witnesses discussed by the district court, the trump tower meeting, they don't appear. the only place any appears is in the two pages at the end of the discussion of article 1 of the impeachment in the section entitled "consistency with prior conduct" one paragraph in one manafort and wikileaks are mentioned and the whole section, the two-page section after 120 pages of merits discussion, cast as shedding light on the approved articles of impeachment. >> what about the house report and its position that its consideration of other articles of impeachment is ongoing. >> yes. let me say a couple things about that. first, the representation by house lawyers in this court, i think it's telling that they won't actually say that there will be or would be new articles of impeachment if they got the information or that even if the house would actually -- >> well, prosecutors don't say that. they want the information and -- >> i thought i heard them say that. maybe i missed something. >> i will be interested to hear what counsel says. there's a scripted language that appears in the supplemental briefs in the mcgahn and this case, which they say they would consider whether to pursue other questions including possibly considering whether to do new articles of impeachment. let's just take a separate question and look at this from a different angle. the articles of impeachment approved by the house itself, not by the house lawyers, the voted on articles of impeachment in article 2 the house told us what the scope of its inquiry was, the house has conducted an impeachment inquiry focused on the president's alleged -- >> i know because it's talking about those two particular. it doesn't say that it is closed -- >> i agree with that. we're not arguing it's moot because they cannot. i think when the house is coming in here and telling you this is preliminary to a judicial proceeding on the mueller report, the conduct of the mueller report, the courts needs to have some confidence it is preliminary to a senate impeachment trial about the conduct of the -- described in the mueller report before they can invoke this mechanism -- >> i don't understand that argument. >> this is -- >> this is the counsel representing the committee on behalf of the house. >> i don't -- >> it's not some casual remark. >> of course. we're not second guessing anything that they're saying. what we're saying is look at what they're saying. put it this way, if they come into district court and said it's possible we will consider whether to impeach, so we would like a 6-e petition to be granted as preliminary to the senate impeachment trial, that petition i think would be denied. >> did the department before the district court raise all these objections? >> we did. >> after -- no, after the point about flynn and then counsel for the committee said well we'll take that off the table? >> yes. >> did the department say to the district court now you must go witness by once, you know, line by line -- >> your honor, we have argued in our briefs and at the hearing 2in district court needs a showing of relevance. >> we understand that. i'm asking you a particular question. did you raise a precise objection? >> i don't recall. >> i didn't find it in the transcript of the district court proceeding. >> i don't think that -- >> you're more familiar with the record than i. >> i don't think, your honor, that the district court did, the fact that district court ordered the disclosure of redacted grand jury information for with which the house has no need and under a theory we think is mistaken as a matter of law, that is more than ample basis for us to appeal that. of course the one that -- >> that's what i'm trying to get you to deal with. >> yes. >> is -- that's ignoring what the house committee has said. >> what the house committee said they want to do a full and fair impeachment and our argument is if someone said i want to do a full and fair trial, criminal case, a full and fair civil proceeding, that would not be a sufficient basis under any account of rule 6-e. >> the 11th circuit disagrees with you. >> the 11th circuit, i think they were wrong -- >> there is a circuit out there that disagrees with the justice department's interpretation and that impeachment is a different kind of proceeding. >> that question was not litigated in that case. >> but they ordered all. candidly at the end of the argument the last time you were here, it was pointed out that the department of justice often releases these things in course of trials, these grand jury transcript. >> grand jury information is allowed to be used in the course of trials. >> i understand that. i'm just getting at, i think that you can say, your argument works best if the house had said we're done, you know, in the impeachment inquiry and consideration is closed, that's not what the house has said. >> i agree that's not what the house has said. we are right now as to the house's power to impeach with respect to the mueller grand jury, the conduct at issue in the mueller report grand jury proceedings, the same place we were the first day of this congress. >> as an indication of pattern and practice. >> as an indication of pattern and practice, they submit this information. it is -- this is for use in the senate impeachment trial. this is the point i started with. that is not the need the district court found. the district court found the need for this information was to prove it for the president's conduct in the mueller report. what they say now for four or five pages of their supplemental brief, before a one paragraph they might impeach again, they want to use it in the senate impeachment trial, that is not the reason the district court thought they were able to do it and the district court bracketed off that question. foot note 47. >> instead you want the district court to carefully try to figure out what information the house should use in its impeachment? >> i think that's the -- >> you think that's permissible under walter nixon. >> that's your view if we get past the threshold questions, your view is the district court needs to dig in and figure out what's necessary? >> if that's permissible and in district court we may well argue that a senate, the prejudgment of what is relevant in a senate impeachment trial is off the table for the district court altogether, but if, at a minimum, what they need to be saying to satisfy a particularized need standard is they have not just a need, but a particularized one, they have lots of witnesses who come in and testify to questions. the only need they cite for is for a consistency to shed light as a consistency with prior practice after 120 pages of the discussion of evidence, normally in these cases you require someone to come in and say my cause of action -- >> this isn't a normal case, though. this is a very different type of case. >> i agree, but it is their position that the -- they fit in just like every other litigant and they can't have it both ways. they can't say this is a judicial proceeding like any other, but we get special treatment and we're entitled to not have to satisfy the standard -- >> i don't think they're saying this is a judicial proceeding like any other. it's a judicial proceeding and it's an impeachment of the president of the united states. no more solemn action will be taken by the house of representatives except for declare war, right, the most solemn action. the district court is saying we're going to -- we're going to err here, that's not the right word to use, to err on the side of giving them more, not less, just the way they did in watergate, which is the gold standard. you may not agree with that. >> if the district court had said there is a close question whether, for example, witness x, y, z's testimony is going to be necessary, because of the nature -- >> [ inaudible ]. >> which he gave them everything including things they said they didn't need. 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 those determinations. >> and make a -- >> you don't think that runs into the walter nixon problems? >> it may depending on how it unfolds run into the walter nixon problem and again, i understand the court to be saying it is not interested in this argument, but i think that is the reason why the premise of this case is mistaken. i think if this case goes to a higher court that will be the lead argument, that there's no reason why we ought to be putting district courts in this position at all. if we're going to undertake this endeavor, then sensitive to those concerns, and perhaps within some guidelines that we will argue about in district court, the district court at a minimum needs to be saying you don't get everything, you have to show a particularized need and on a witness by witness or group of redaction basis needs to find a need and not give them grand jury information -- >> how long would that take? you've seen them. >> we would be prepared to proceed as we have on appeal -- >> how long would it take for a district court to do that. >> i don't know. i think that would be up to the district court. we would be prepared to brief it -- >> i'm not clear as to what the district court does. the district court looks at something and says i don't think that's relevant so i'm not going to give it to them. the committee says but your honor, it is relevant and here's why. so the whole notion that the district court cannot control either the senate trial or control documents it would order to be released, this is a question of how far can the district court go when a representation is made that candidly there's no reason not to take at face value. >> well, i think the representation that they need at all we know not to take at face value. the house trenched from that. >> the house what? >> retrenched from that and backed off from that. >> that one witness? >> that's indicative to give you an example, i looked through the other redaction, one on page 649 to pick one of the joint appendix, in the section of the end of the volume 1 of the mueller report in which the special counsel's explaining why peripheral players in the investigation were not indicted and there are grand jury redactions in that section. that's classic grand jury secrecy to protect the rights of people who were investigated but not indicted. ther described in the text of the mueller report as peripheral players. now if the house wants to say, we have such a compelling need to know why peripheral players were not indicted by the special counsel, that we're entitled to this information, that's a showing made to the district court -- >> what i'm getting at is, how do they know they are peripheral players. you're telling us but two district courts have had more faith in the house committee's proceedings and protocol than the department of justice. >> we're not here express anything doubt in the faith of the committee's proceedings. we're saying, this is a request for grand jury information. the rules are there to protect very fundamental values to the criminal justice system. for example, protecting the rights of the innocent investigated but not indicted. the needs standards requires the applicant to say here's why i need that and they may come in and say they need the testimony of steve bannon, even though steve bannon's name doesn't appear in the impeachment report, but i doubt if they were put to this test they would say we need the redactions regarding michael flynn, the redactions regarding minor players in the case, we need the redactions regarding why we know the russian sovereign wealth fund invested. these are irrelevant facts that happened to involve grand jury information but irrelevant to the house impeachment question inquiry and it is their burden to sort those. >> we heard about accommodations and agreements. why couldn't that happen here as well? >> we did make an accommodation offer to -- >> not one that satisfied what the house was looking for. >> i think we did in part. >> in part. >> there was a redacted version -- >> this could happen here as well and the house committee already passed those protocols and the district court could put faith in them and the chief justice put faith in the committee's handling of such sensitive material. >> the accommodation we made with respect to the mueller report was giving the house all of the unredacted information other than the grand jury information. >> other than. >> other than the grand jury information because 6-e bars us from giving it to them. >> i know. want to go further or hear from the committee? >> i have nothing further. >> thank you. may it please the court, i'm douglas letter from the general counsel of the u.s. house of representatives. with me at counsel table is the assistant general counsel of the house and todd, the deputy general counsel of the house. i would first like to thank my friend mr. freeman for giving me so much to talk about here. i am -- i love being a lawyer and doing this kind of stuff. i want to get very quickly to judge rao's questions at the beginning. i think it was essential because there was so much time spent on this that i say one thing, mr. freeman is wrong. the dennis decision of the supreme court makes clear that much of what he argued right now about particularized need is absolutely wrong. the supreme court there said there is no obligation under a particularized need to do an in camera inspection. no need to go line by line. what supreme court has said in cases like cells engineering and dennis and doe and i understand mr. freeman doesn't like doe and dennis, he would prefer they isn't exist, but they do, and they say that courts don't have to do this, this is largely up to the discretion of the district courts. mr. freeman -- >> how could the district court make any analysis under a particularized need? any analysis? without having looked at the unredacted material? she's flying blind on this. >> again, the dennis -- the supreme court rejected that very argument. so what she has to do way the court did in dennis, and what court did in doe, because, for example, this also was not done in the doe case that we so heavily rely on. what those cases show is that the obligation of the judge is to take into account the douglas oil factors and then make a determination -- >> how does a judge do that without looking at the materials? it seems to me, mr. letter, that the force of your argument is, when the house comes in and invokes the word impeachment, that it's a mantra, impeachment therefore we get everything, and does the law say that? >> i understand your concerns, judge griffith, and no, that is not what we're saying. let's look at this specifics case. we have only -- we're only talking about what judge howell ordered. judge howell ordered a very discreet type of disclosure, so first of all we're only talking about the mueller report, so we're not talking about all of the mueller grand jury information, so first of all it's limited because it's what special counsel mueller decided to put in his report and all th that judge howell gave us were the redactions and the underlying transcripts about those redactions. it's very limited. unlike in dennis, where the court said, well, gosh, in order to have a fair trial, they're entitled -- the defendants are entitled to all of the grand jury material. no line by line is necessary. first of all, it's a small part. second, the judge said we're going to do this in stages and so if we look at that limit amount of material we can go back to her she said and maybe at that point she would do it differently, we don't know. the key thing this is already vastly more limited than us saying impeachment, we get everything. we're not making that -- >> maybe you answered this and i didn't understand it. that could be the case. how is a district court judge supposed to do that without picking up the redacted report and looking at it? i don't get that. you may be right, the supreme court said you don't have to do that, okay, how are you supposed to do your job of making an analysis of a need if you don't read the stuff? the judge, the gold standard here, he read the whole thing before he released it. >> first of all remember judge howell did have before her the in camera affidavit from the justice department explaining what was in -- >> for volume 2 five pages says nothing about the 206 redactions. she released those as well. >> there is that. second, it's because i think what dennis shows is, mr. freeman is wrongly understanding what particularized need means. particularized need doesn't mean we have to show that at page 14 of the grand jury transcript line 7, i want that line so that i can impeach at trial witness lois lane. the supreme court has made clear, no, that's not what particularized need -- >> what do you think it means? >> it means as douglas oil -- >> in this case. >> in this, what it means is, particularized need is a balance. >> right. >> so one, we look at the needs for grand jury secrecy as judge howell pointed out and as the supreme court pointed out in -- >> it's done, got you. >> it's done. they have almost no reason for grand jury secrecy. second is, the court said, and the supreme court has said these aren't going to be used against witnesses who -- witnesses before the grand jury and entered at trial. that's extremely unlikely to happen before the senate, so it's not that kind of interest, so there's almost no -- nothing left on the balance of grand jury secrecy. again, supreme court decisions make that absolutely clear. mr. freeman cannot deny that. he cannot stand up here and deny that. second then is, what is the interest, how is that to be balanced with the interest of justice? as i think one of -- what judge rao said, this is the most -- this is it. there's nothing more important than determining whether the president of the united states should remain the president of the united states. >> so mr. letter, before the district court you asked the committee asked only for authorizing the release of the materials. did not ask for an order compelling the department to produce those materials. is that correct? if we were to -- if we were to uphold the authorization by the district court, but vacate the order compelling the department to produce that information, would it be the house's view you would need to bring a separate suit to enforce your subpoena? >> absolutely not, your honor. clearly -- i hope when mr. freeman gets back up here he will assure the court -- >> he said he has to take that question back to the department. >> that's just stunning. if this court rules that the house is entitled to this material, the attorney general is going to say -- >> i'm asking you a hypothetical. >> i'm sorry? >> i'm asking you a hypothetical. say they don't turn it over would there need to be a separate suit? >> if they don't turp it over, then -- this is a little awkward. this was discussed before the prior panel but i will have to talk about some of this. either we could bring an action for a subpoena, subpoena enforcement, but there were some questions about that which i want to get to in a moment, i guess what we would do is use the main remedy that the house has had from the beginning, we'll send the sergeant of arms over to the justice department, i cannot imagine that anybody at the justice department is going to interfere with him doing his duty as an officer of the house, and he will pick up the grand jury material and bring it to the house. >> so you do have some methods of self-help? >> absolutely. >> that don't require this court to intervene? >> of a gun battle -- >> why not avail yourself of that remedy? >> the reason is obvious. >> when was the last time -- >> clearly it hasn't been -- >> why is that obvious? >> that's why this is discussed in the first case. that's why we don't do that anymore. we don't have the sergeant at arms go out and arrest people and maybe have a gun battle with mr. barr's fbi security deal, instead we go to court. everybody has recognized that. >> that's an interesting point. maybe you can help me with this. i was unable to find any case in which a court had compelled the department to release grand jury information to congress. none of the examples in your brief or the amicus brief involved compulsory process to the department. so if you can come up with one i would be interested to hear it. >> i may be wrong, your honor, i will have to make sure, i'm not aware of a situation where the justice department has opposed congress. >> well -- >> as we know, this is a astonishing situation with the justice department here not going along with decades of tradition. in fact, from the -- >> if this is the first time they've opposed, i'm not sure that's correct, then we still have a novel question then, at least, as to whether a court has that authority to order that process in an interbranch dispute between the executive and congress. >> certainly. i'm happy to address that right now. so -- and again, sorry. you heard some of this already. so is there some article 3 reason why the house and/or the senate, say it was both, say the senate has the trial and say, we want this material, so my understanding is the justice department would say you can't have it. senate, house, even if it's unanimous by all of you, you're not getting it and we can't turn it over because this isn't a judicial proceeding, why is that not? what is it about that? the only thing i've heard is, my friend's argument that raines says it's not. that's not what raines said. that's not close to what raines said. as my colleague pointed out, if the supreme court were going to announce such an astonishing new rule of law surely the supreme court would say it and they didn't. that's not what the reigns case was about. you can point at lang wear here a -- language here and there. there's no reason why this court should take a supreme court decision not about that and turn it into what would be one of the most important constitutional decisions of our entire history that congress cannot go to court. there is no way the supreme court would do that. >> the argument isn't that congress can't go to court. >> go to court against the executive. i'm sorry. i misspoke. so there is surely these judges would want something in the way of guidance from the supreme court that it meant to issue something that would be so amazing and yet, again, you can -- there's nothing in raines that indicated that's what the court was doing there. >> i'm not sure it's so amazing. in the nixon impeachment, the judiciary committee in its report made very clear that it felt it could not seek the assistance of the courts in issuing compulsory process and the house judiciary committee went through in great detail the baker versus carr factors there, including that this was an issue committed to the house and its sole discretion, right, that it was -- you know, that it's an independent judicial decision could, you know, show a lack of respect to congress and, of course, there's the possibility of em bare rasing pronouncements. that was the position of the house judiciary committee not so long ago. >> but the supreme court does not say anything at all about that. in the nixon case, as we know, the nixon case -- >> it's also -- it's also exceptional the house is seeking this type of remedy from the courts. both branches have kind of stayed out of the courts and allowed us to be out of the fray in the impeachment matters. >> seeking grand jury material in the various cases, hastings, porteous, other impeachments, nixon, clinton, the madison -- >> none involve compulsory process by this court. >> i know. that's my point. it didn't because the justice department now has chosen to go against a couple hundred years of precedent. as we point -- the amicus brief points out, 1811 was the first time grand jury material was turned over to congress, there hasn't been a need for compulsion because in the past the justice department knew what it was supposed to do. >> in a number of the cases cited, the materials were not in the possession necessary of the department of justice. congress received those materials through a variety of different means. it's not often clear from the record. none of them involved a court ordering a disclosure by the executive branch of the grand jury materials. >> your honor, that raises -- and as we say, at least since watergate it has involved that. in the john doe case, this was a dissent by justices brennan, marshall and blackman, but i think it cites an opinion by judge whitaker in procter & gamble, just to read for one moment, thus, the information generated by the grand jury's inquiry is, quote, not the property of the government's attorneys, agents or investigators, nor are they entitled to possession of them in such a case. instead, those documents are records of the court. that's a key ruling. that's a key statement, i'm sorry, not a ruling, because the only reason -- why does the justice department have these materials? it's convenience. the grand jury is not an arm of the justice department. what we can do from now on is have grand juries, the courts will keep their own materials, and then the house or the senate or both will just come to the courts and it wouldn't be an interbranch dispute. it's an interbranch dispute only because of some convenience that justice department is holding is storing this material. >> could you respond to mr. freeman's point, which i think he began his argument with today, and i asked about in the previous case, about there have been two articles of impeachment that have been acted upon. are you here to say that there may be a third? >> your honor, i'm going to do the exact same thing they did, which is in our supplemental brief in response to this court, we tried to be very clear about this -- >> the answer is yes, there might be a third. >> there might, absolutely. >> a fourth -- >> exactly. >> the house judiciary committee has not finished its work on impeachment. >> nor has the intelligence committee. both committees specifically said that for two reasons. one, the evidence that comes up now might be usable in the senate trial. now, mr. freeman was talking about only introducing in the senate trial. that's not all. it could be that this material is useful to us, the house managers, in the senate trial. that doesn't necessarily mean -- >> who are -- >> i'm sorry? >> i'm glad you asked -- >> just a little levity. >> i'll whisper it to you. so it could be useful to us. if you look at dennis, that's one of the things that court was looking at. it wasn't would the entire grand jury transcripts be submitted to the court? obviously not. that's not the test. and in addition, as we made clear the judiciary committee could look at this material and decide whether to recommend more articles of impeachment and i really want to be clear about this because i think in the media there was some hysteria that we were going for other articles, et cetera. we meant exactly what we said. the judiciary committee or -- if it would be shared with the intelligence committee would look to see whether to use it to recommend further articles of impeachment. so yes, that is on the table. there is no doubt. mr. freeman was saying, well, this is totally different from the articles that were sent over and so everything judge howell did is irrelevant. that also is not true. as we pointed out and as in the -- in our supplemental brief, we make very clear that some parts of the mueller report relate specifically to things that are covered in the articles of impeachment and that's stated -- i think mr. freeman may have quoted some of the articles that stated in the articles and it's there in the mueller report. for example, it talks about the concerns about this conspiracy that ukraine was actually behind the election interference and this is a theory that president trump has been using to say i'm not giving money to ukraine because they're the ones that actually did it. it can tie in directly with what is before the senate. various meetings which can tie in directly to why is president trump obstructing congress? what's his motivation for doing so? why is he doing this? mr. mueller quoted the famous phrase, but the president saying, basically, oh, boy, i'm done. my presidency is over. why did president trump say that? why did he think it was over and how does that relate to, is that why he's obstructing congress? because that clearly will relate to the impeachment proceedings. so judge rao, you asked to say i think at the beginning, about, you know, can this -- is the case properly here? we've talked about some of that. in addition, i just want to emphasize, i know the panel discussed this a bit, it's totally unclear whether this is an article 3 function that is going on, just like as we pointed out, there are situations when by statute the bodies of congress come to the court for immunity determinations, when this court, if this court is a judicial -- article 3 officers when issuing warrants, is that an article 3 power of the courts? i don't think it's ever been determined one way or the other. part of that is, as we know, district judges sometimes do it, sometimes it's magistrate judges who are not life tenured, is that article 3 powered, so here we have a situation that has been set up by the supreme court, originally, and by congress, special sort of proceeding that we're in front of you today. it certainly doesn't seem much like your standard article 3 power. >> if it's not part of the article 3 power then, how -- on what theory is it just part of the supervisory power overs the grand jury to order one branch of the government to turn over materials to another branch of the government? could that really just be in its kind of -- with the supreme court has described as an administrative or supervisory role to aid the grand jury? it's not agiding the grand jury in this case. >> it's implementing the rule 6-e and that's, i think, the answer. >> does 6-e give the district court the authority to order disclosure? it speaks in the language of authorization of disclosure. >> well -- >> indeed, your own filings, your own application did not ask for that type of compulsory process? >> again, we will have to hear from mr. freeman. it will be headlines if attorney general barr says despite the fact that d.c. circuit -- i assume that would mean the supreme court as well, the supreme court says, as it has in a batch of cases, grants a -- >> i'm just asking you -- i'm just asking you about the statutory question, right? does the rule itself give the district court that authority? >> i need to get the exact language of 6-e in front of me and i don't have it with me. one of my colleagues is going to find it very quickly. it's not statutory. remember, this is a rule. >> so even more so then. >> well so the -- >> wouldn't the court have -- if you're saying there's a difference between a rule and statute, then -- >> but the rule is what provides for this. there is no grand jury secrecy under -- there was under the common law and there is now because of the rule and the rule provideses exceptions to itself. if it fits within an exception, the secrecy wouldn't apply. so the custodian, the justice department, is housing these. again, i just find it unfathomable that the justice department would say all we are the custodian of these and even though we have -- there is no legal ground to continue to hold them, we're going to do so anyway. i guess that may be in which case we would be -- thank you very much -- >> my question isn't about what the department of justice would do, it's really about what the specific power is of the district court to order the two different types of relief? one is authorization, one is the compulsory process. i think that that is -- mr. freeman is right, under theorized in the cases, so i'm interested in what your understanding of that relationship is? >> your honor, i have to admit, i have never thought of this before. i guess because as a justice department attorney i would have been embarrassed to say if a 6-e order was issued the justice department would not comply with it. i've been handed the district court's order, doj is ordered to provide promptly. the district court did order. >> i know they did. that was not the relief you sought in your application. you were lucky, i guess. >> it's before this court, the order. >> yeah. >> and so this would be -- the attorney general barr would i guess be violating an injunction, which is punishable i assume by contempt therefore. >> none of my arguments go to what the attorney general would or would not do. i'm not suggesting what he would do in that case. i'm asking what would happen in a case where there was no injunctive compulsory process to the department of justice? >> we would knock on the door of the justice department and sergeant at arms would send him down there, would knock on the door and say i'm authorized to get this and then -- i'm not sure why you're saying it doesn't have to do with the justice department. they're the custodians at the moment, they don't need to be, and so i'm guessing what would happen is the supreme court would amend the rule and say, from now on, the justice department has to disclose these or maybe would say, the justice department won't be the ones storing them anymore if it's really going to act this way, then our trust in the justice department is so undermined that we will have the courts will store these, which would be most unfortunate. but again, let me go back to -- my colleague has pointed out what's before this court is an order from the district court to turn over the material under rule 6-e. >> let me go back to the district court order itself. during the hearing, you acknowledged that materials regarding flynn could be taken off the table. how is that consistent with the district court order directing all of the redacted grand jury -- >> i think that would be a waiver just like a criminal defendant says i want the grand jury transcripts and if the court said you've got them, by the way, one of the transcripts is 10,000 pages long and it's by so and so, testimony of so and so, i could imagine a criminal defendant saying, i really don't need that. >> why doesn't that put in burden on the district court to ask, are there other things you don't need? >> what did we say we didn't feed? >> since you've taken that off the table, mr. flynn off the table, wouldn't that alert the district court? in the transcript the district court asked counsel, well, does this mean i have to go through this witness by witness and how long would that take. >> right. >> your response is no. >> because as i say, the dennis decision, the law of the supreme court, is the court doesn't have to do that. >> all i'm getting at, the district court knows you don't need anything as to mr. flynn, yet it gave you mr. flynn as well. >> again, undoubtedly in dennis, there was plenty of the entire grand jury record that went to the defendant and the defendant looked at and says oh, gosh, i don't need this, but that wouldn't undermine the validity of the order. this might also be a good time to -- mr. freeman made it seem like well, there really isn't much there, it's footnotes, et cetera, i'm holding up to you, you can see this big, giant, dark area in there and that's grand jury material that has been withheld, redacted, so it's not just some footnotes here and there and the footnotes could be key, for instance, one appears to be, is almost certainly, grand jury testimony of mr. manafort and so these could very well be key. judge griffith, i'm sorry, but this reminds me another part of what the particularized need is that judge howell pointed out, at least several of the people involved in this, it's now clear that they lied and so the grand jury material we think could be extremely useful in figuring out who lied to the special counsel and who maybe therefore is also lying to congress. so that's another thing why this is particularized that she focused on. quickly looking through my points, oh, it would also, i think, raise a serious constitutional issue if 6-e is read as providing, as mr. freeman wants, there's no exception for impeachment, so rule 6-e would impose secrecy, but provide no ability for congress to gets the material. that would raise obvious constitutional problems, if the house and the senate are conducting an impeachment trial -- remember the trial -- the house managers are -- as in these other cases, wow, hastings, nixon, clinton, we had the grand jury material, why don't we have the grand jury material here, and we want it, it would raise very serious questions about the constitutionality of 6-e if it were that the supreme court set a rule saying, congress cannot under any circumstances get grand jury material, whether that hinders congress or not, it can't get them, that would raise a constitutional issue. mr. freeman says, well, there's a constitutional issue because -- >> where does congress get the right to grand jury information? >> congress has a right to -- in conducting impeachment inquiry, congress has a right to any information. it's again, by far, the most important congressional investigation -- >> as a jushbly enforceable right? >> again, that's what i -- you and i talked about earlier. yes. there is nothing in the separation of powers doctrine or article 3 that says that -- there's no case that comes anywhere close to saying congress cannot go to court to enforce its investigate tore powers and congress has gone to court to enforce its invest ga tory powers. >> this is a doctrine covered by article 3, the alternative is we can do one of two things, we can send out our sergeant at arms, last time i think judge griffith, i think was in the 1930s, done in the '20s in a case, we can send out the sergeant at arms, we'll arrest attorney general barr next time. he's up at congress. i've run into him tin the halls there. we can arrest him. or we can shut down the government. there's a great way for congress to get information. we'll shut down the entire government for a couple months. we saw what a disaster that was. why would it be -- why would the courts want to say that this very amorphous doctrine requires the house either to send out its sergeant of arms to physically arrest executives, cabinet members, or shut downs the entire government, as opposed to go to court? there's nothing in raines that discusses that. i can't see where that would possibly come from. >> well, i'm assuming you heard the argument from the department in the mcgahn case, relying heavily on raines, and what did he say, the six pages that chief justice rehnquist was eloquent on, why the court should avoid involvement in these interbranch disputes. >> right. and nowhere does -- as i recall -- does he talk about congressional investigations, which as we know for many decades have been enforceable in courts, and nowhere -- >> this is an impeachment investigation. it's not a legislative investigation. >> so it's even more important. right? thank you for reminding me of that. it's even more important -- >> it's more important but more of a political question. >> oh, i don't think so, your honor. what the walter nixon case said was a political question, the courts can't tell the senate how to conduct a trial. that's totally different from saying, the supreme court has set up this thing called rule 6-e imposed secrecy on grand jury -- >> this 6-e is in the heartland of our experience, right? >> absolutely. >> we supervise the grand jury. >> i'm making a point that cuts against you, it's different. it's a different sort of power that's being exercised by the courts than is the larger issue that you're speaking to about whether congress can resort to the courts to ep force -- to get information from the executive. >> we also subpoenaed, we issued a subpoena for the -- this information, so if we want to all of a sudden say you can't do this through 6-e, but, of course, it would be enforceable as a subpoena we could go that route. >> that lawsuit would more cleanly present the standings in other questions like the other litigation pending. >> again, we don't think those arguments -- >> this question i asked mr. freeman, why does rule 6-e change that inquiry? you say it's not even a statute. >> it was at one point passed by congress. the supreme court, however, can amend under the rules enable act, the supreme court can change it. it could say they are repealed. can do that tomorrow. the reason is because as i say here, the justice department has the materials as custodian. in the williams case it's a separate entity under the constitution and it is most definitely not an arm of the executive branch. so -- >> also not an arm of the court according to williams, right? it's it own entity separate from all three. branches. >> as i say, in the dissenting opinion it said they are, these documents are records of the court. i don't think the -- in williams the supreme court didn't decide this issue only to say the grand jury is a separate constitutionally based enthe at any time. but it is truly not an entity of the executive branch. no doubt about that. so that's why it seems to me, this is the -- this is an inter branch dispute because of this oddity -- >> it's the only oddity of rule e then why not the solution of simply authorizing disclosure and not ordering disclosure, right? then it just puts it back to an inter branch dispute. gets the courts out of the way. the if rule e is preventing you from getting these materials, authorization should be such en. >> again -- i know you're saying -- >> then can you bring another suit to enforce the subpoena then the department of justice can't beside rule 6e. they might stand behind other arguments but they can't stand behind the rule. if the rule is the problem we can push aside the rule. >> i'm hard pressed what argument the justice department would raise why records that are not actually theirs can be -- >> you keep going back to what the department would do. you haven't made an argument for why this court should order the department to release the material. that's separate from rule 6e. >> the reason you should order it is because i think everybody understands that this is how it works. we have all of these cases -- >> except there's not a single case where the court has ordered that type of remedy. not a single one i could find. not one that anyone has presented. >> the courts do order that all the time. the orders go to the justice department. the order is indennis -- >> it's usually where there's a criminal defendant or someone else who clearly has standing and all the articles for requirements. here that question is more murky. >> no. because you said the courts have authority to issue an order about grand jury material. >> authorizing. >> orders. orders. that's what i'm saying. dennis. the court. constantly the courts are ordering disclosure of grand jury material. so if they do that the only reason that it doesn't -- it wouldn't happen is if the justice department decides we're going to defy that order. so, that's what i'm saying. >> the power the to order might be different in this context where it's the congress that's seeking materials, and there's an inter branch dispute. might be different or at left arguably different from a case in which a criminal defendant is seeking that material. >> i'll try again but i think we're going round and round. first of all it's different in one sense. supreme court made clear disclosures within the government are much easier. that's another factor, judge griffith clearly recognize the case. this is a disclosure within the government. there's a presumption of regularity by the judiciary committee. the judiciary committee still has not released the watergate road map. they know how to protect grand jury material when it needs to be be protected. the skrecy is even lower than normal. judge, it seems to me that our argument is because this is for impeachment there is no greater need than that and, therefore, the need is just overwhelming and it cannot be -- there's nothing whether in any supreme court decision that would support the notion that the executive branch can refuse a court order or court authorization and there by 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. this is the first president, and that's one of the articles of impeachment. he's doing something totally unprecedented. >> this is the first time the house is seeking the court's assistance in obtaining this material. history cuts both ways. >> it's the first time only because the justice department for any number of decades acts responsibly and now suddenly this justice department decides to change what it has told this court what it has done with other courts and suddenly say all three branches have been wrong for decades and decades. they have no idea what they were doing. we're here to tell you we can't turn it over to anybody. that is so -- it's so clearly wrong. >> anything further you want to cover? >> let me look very quickly, your honor. i'm sorry. >> no need to apologize. >> i'm sorry, your honor. >> no need to apologize. [ laughter ] >> i'll look quickly. last time we talked a lot about the key points. i'll just be very brief on that. the d.c. circuit held in mckeefer what was meant. it says it. it can't be any more clear. it was required as part of its decision. i just don't get the this argument. you can say mckeefer was wrong, holderman was wrong. the justice department can't make that argument to this panel built they could argue it somewhere else. in addition, they say well holdman was a ruling but one of the things the court said there was that the judge had acted with, i think within the bounds of the law. the court actually said that. so it's an interesting mandamus holding. but, again, mckeefer said what the law is. let's see. i'll look very, very quickly here. oh, mr. freeman was wondering about my bon bona fide. i'm here representing the constitution of the united states. i'm authorized to say these are the positions of the house of representatives. this court, i think the name of the case is barnette about a year ago accepted the representations of the house general counsel as the positions of the house and issued a decision upholding, having to do with the house chaplain, upholding that determination based on the representations of the general counsel for house to. mr. freeman said the first day of congress, that's absolutely not true. the judiciary committee has gone through any number of actions and house resolutions, et cetera. this investigation is authorized. there's nothing that the judiciary committee and the intelligence committee are no longer authorized. the last thing i just want to say, the accommodation, i think mr. freeman ended with this but i want to emphasize it. there can't be any accommodation because the argument is they are prohibited bylaw to give us this material. there's been no accomodation. accommodation letting us see other stuff that's not accomodation. there can be no accomodation according to them. they put themselves in risk of contempt if they share the grand jury material with us. the accomodation argument, they would agree with me is off the table. thank you very much your honor. i appreciate your patience. >> thank you. counsel for appellant? >> thank you, your honor. i have a few points of privilege. i have a couple of point i want to make. i want to be clear for the record because i didn't want anything misrepresented. not that the attorney general would do anything with respect to that. it's not for me to decide. second on the merits of what the standard means and whether the district court should have looked at the material in camera, dennis case and john doe case as counsel cites don't stand for those propositions. the dennis case is a case in which four witnesses testified in a criminal case. the supreme court said it characterized dennis case as likely that the witness' testimony at trial was inconsistent with the grand jury testimony and so ordered in fairness to the fair trial rights access to their grand jury testimony. congress may have codified that act. that's not -- that was a point where the particular need of evident from the face of the criminal trial. a number of other circuits this court has not. other circuits in the lucas case, in the 7th, the grand jury 89-2 in the 10th and i forget the name of the 5th circuit case have held district courts are required when you don't have that kind of showing to look at the material in camera. our point is -- >> specifically impeachment case? >> they were not impeachment cases, right. our point is -- >> my point is and i get the thrust of what judge griffin is getting at as well and judge rowe a motion that impeachment proceeding is different for any number of reasons. now it doesn't mean your position doesn't ultimately prevail but it forces you to deal with that. >> we agree that the particular needs standard is a fleckible one. i think it was discussed. >> may be different than in a criminal trial. >> it may be -- >> where the defendant is seeking grand jury transcripts in order to impeach a witness. >> but does not follow that everything they say they need they get or that they don't have to make some particularized need. >> the question is what is particularized need? it's what? it's minimum requirements in an impeachment setting. >> that would be a fairly profound statement -- >> no. what i'm trying to get at is you have an arm of the government conducting an investigation. now it's like saying, i mean, this is a bad analogy but to the fbi, you can investigate all you want but you're not going to get the grand jury transcripts that might assist you in your investigation. may be an extraordinary setting. i think that's what the house is arguing here. >> i agree. i agree that's what they are arguing. i want to make the point that what was at issue in the abbotts and associates case. the california attorney general wanted the information. they said we had a statutory right to it because we don't know what we don't know. the supreme court held the particularized needs standard still held in that circumstance. the >> my question doesn't suggest it doesn't. the question is what is the substance of that requirement in an impeachment setting? >> so, again, i think what the house has argued it's the same as just need and that's not the case. >> i didn't hear that in all due respect because we asked not only on this day but earlier day what was required here. >> i think counsel was unable to articulate. i heard my friend answer or attempt to answer that question several times. what does the particularized standard require? it's flexible. the court said that. what they won't say is anything other than the house needs it. they argue that if they don't get the information they need that that's a constitutional problem in rule 6e. as my friend just says constitution fiscal right because of the impeachment power to get this information and i find that position astonishing. this is a statute. suppose congress passed a statute in rule 16 under no circumstances shall graj information be available for impeachment. not likely they will pass that statute. wouldn't that statute be unconstitutional? of course not. this is information congress can specific in a statute who has access and when. the statute that congress enacted doesn't provide access to this information. now judge rowe asked what happens if it's a proceeding but the inquiry in district court raises profound constitutional questions. i was reluctant to say this but i think the answer in that circumstance might be you strike down the rule as applied in that circumstance. we don't think you have to go there because we think constitutional avoidance should take you away from that. it forces exactly the question that the supreme court confronted in the walter nixon case. the rule is unconstitutional as applied to impeachments, which happened -- >> because of walter nixon? >> if their argument is a particular needs standard -- it has to be. particular needs standard place the district court in position of being the evidentiary gate keeper for a senate trial. if that's the conclusion we come to then it does raise profound questions. >> that's not the conclusion the court has to reach. i know you want us to say it that way but it wouldn't be necessary if we were to reject your argument. frame it that way. we don't know what evidence would come forth as a result of an order that says someone shall comply with the subpoena. >> right. >> then they appear. refuse to testify. exerting privilege. et cetera. who knows where it would go. so we don't get into that. if we accept the committee's argument. that's what i'm trying to get at. everyone wants to push us into this political battle and in some instances they may be great but i don't think necessarily it means just because the court makes a decision, doesn't mean different sides won't view it as supporting their position. but that's a i. issue entirely. you don't think this case is n nonjudiciable. >> my overall point. what ought to happen had here congress ought to enact a statute that provides for their access to this information in a way that doesn't put the district court in the middle of it and doesn't require district court to sit as gate keepers. that's what taught happen. that's not a constitutional problem with the current statute. not a constitutional problem with our position. it is not a violation of the separation of powers. it honors the separation of powers to say that the house of representatives should abide in litigation by the choices it has made in legislation. the final you would make about particularized need is again we're not in the same position we were a month ago. there's two articles of impeachment. the district court's finding of need respected a concern that's no longer present. the district court explicitly bracketed off the ukraine controversy. what ever else we know the particularized need doesn't include the grand jury information. at a minimum there should be a remand. >> how do we know that? the district court didn't say it would not be relevant in any particularized way. >> no. >> to articles that the house might return. >> i agree. to be clear, i'm not suggesting that the district court might not say that they had a particularized need but a different need and a need that she found which was the use the information in an impeachment on the basis of the conduct in the mueller report does not support that finding, does not support using a senate impeachment trial on other articles of impeachment. >> i want to be clear on this. the committee is saying it is relevant information. and they explain why. >> they should make that showing to the district court. >> and the district court has already found that the subpoena was designed to enable the