Release of certain grand jury materials, the United States house of representatives. Justice,department of the District Court, so this court could have an opportunity to review the import questions of the day. The court denied that motion, even though it is clear that once the issues are disclosed, they cannot be undisclosed. The court denied that motion on of merit, butse as we explained, the District Court committed at least two serious errors of law in granting the request. Start with irreparable harm. It is the case that if we agree with the District Court, the irreparable harm is not that important. Freeman our intention in the case like judge griffith it would likely what significance is it . Freeman basically, in terms of the irreparable piece, the disclosure of grand jury information from a massive investigation concluded eight 25ths ago, there are only hours coming out of that proceeding there are 2800. Judge directly to this material. Mr. Freeman how does that relate . Yes, that is the point, on our second argument, which is the committee demonstrating that. Judge rogers i would suggest to with the special counsel , what the committee did with the statements during it seems to specify why certain material is necessary for the committee to it isd, and you have said not enough, repeatedly, but when the council was asked by the District Court, what test were you were lying on and what authority, counsel provided nothing. Mr. Freeman i think the test that ofge rogers the department justice. Mr. Freeman yes, your honor. As we explained very clearly in District Court does rogers yes, what that say . Mr. Freeman it shows you need to avoid specific injustice and other proceedings, that you have to show that the interests of secrecy outweigh the interests of disclosure and that the disclosure could be tailored to that particular injustice. Foundrogers the court that that test had been met. Why was the District Court clearly erroneous in its findings . Thatreeman they found there is no doubt that the District Court has reasons for the specific findings. Judge rogers the error Esther Freeman called the error is granting release of grand freeman rmation mr. The air isnt granting release of the grand jury information. Not whaters that is the court found. I found as tailored. Honor, it isyour that they asked for all grand jury reductions of the entire Mueller Report. Judge rogers no, they did not. You can say that, but they were quite clear. To the extent that they could surmise what might have been said and by whom to the grand jury. Your honor, there may be things in the Mueller Report that might bear on the series. Judge rogers actually, they were much more specific than that. Counsel, you have the records and they went down the list of witnesses who they thought could provide this necessary information. Mr. Freeman yes, your honor. The first witness they identified was don mcgahn. It turns out, he never went to the grand jury before. Counsel, i am reading the papers preview our reading the papers. It was not the only thing. The District Court made these unclear what i am the department is when, indeed,ired hought maybe i am missing expected to know who had testimony, their and specifically why that witness testimony was necessary. Mr. Freeman i dont think so, your honor. View is that how could they question where it is practically in secret, and they do not know. For them to say more than they did . Mr. Freeman that is exactly what was dismissed in abbott with the attorney general. The way this works in the judicial proceedings judge rogers in that case, it and youerent, counsel, know that. As a conceptual matter, where ,rand jury testimony is secret a person or entity seeking the information does not know who testified or specifically what they said, yet they know based on the special counsel us report that there were certain elements the special counsels report that there were special elements and deferred on making any finding of thought of criminal activity. Mr. Freeman right, and that is no different than any normal proceeding. To answer your question directly, how is a party to know that there is relevant grand jury testimony . The grand jury does not bind witnesses, so what often happens in these cases, in a criminal knowor a civil case, i that this person told me that they testify to the grand jury, with any factual question in the judicial proceeding, and i want to use that specific testimony for that particular judge a redacted review . I think they do. They agreed. The District Court got that information anyway. That is not how it is supposed to work. Judge griffith this is not an informal proceeding. The premise of the Mueller Report, for allegations of president ial misconduct, those were not to be taken out by the department of justice. They were to be taken up by the house of representatives. Now, why doesnt that change the nature of our inquiry here . Mr. Freeman i think it does change the nature of the inquiry and that we are not dealing with a judicial proceeding. Judge griffith we will get to that. We disagree with you. We think this applies here. We will get to that. But on that premise, it is different in terms of showing a particular need necessary, because the mueller was never going to identify the allegations of president ial misconduct. Mr. Freeman i do not think that is right at all, your honor at the point of the mueller was that, and the mueller made that clear up a judge griffith clear. Judge griffith that any issues of misconduct would be handled by congress and not the department of justice. Mr. Freeman the point of the Mueller Report judge griffith that is the history here. They engage in factfinding, and they pass it along to the house of representatives. Mr. Freeman the point im trying to make is that is what the mueller did. It included 186 patients pages with five reductions in that entire section, one of nsel said there was no need for. Judge griffith are you saying the mueller did not have the same with the russian interference . Andfreeman hundreds hundreds of pages, and there are a substantial number of reductions, as he would expect, but just because the house of representatives has all of this information upon them, it is incumbent upon them at incumbent on any litigant in a civil proceeding to come forward and say, ok. I have read the 180 six pages including the 185 pages 181 all, with no reductions at and that is relevant to my article is of impeachment my articles of impeachment. Nothing like that was shown in this case. People may have misstated information, which the Committee Identified, and that in terms of president ial information, the information that the Committee Identified what ite specific as to needed, although, as i have said not specific what they said to the grand jury. Mr. Freeman that is no different from the position of any litigant with grand jury secrecy, and that is the conundrum we always face. But to your point so the result of that analysis, that the District Court refused discretion in could with the use discretion . Mr. Freeman yes, and let me explain why. A regular criminal charge, and lets assume it is of historic proportions. Someone comes to the court and says, i am the defendant. Is testifyingess here, i dont know, but i want to make sure they did not testify inconsistently in front of the grand jury, and i want to make sure of that, because this is really important. That motion is denied. Judge rogers but if they say we have evidence from prosecution brought by the department that people have misstated things mr. Freeman that is those people. Not special review. Judge rogers but they have made the showing, havent they, that other people may have . Mr. Freeman sure. Michael cohen. Lying to congress. But they did not come and say, we believe we have testimony in front of us that is undermined by testimony of another witness. They set other people have lied to congress, and though we think we should get to everything, just to make sure no one else did. You would never accept that in a criminal case or a civil case. That is not normal. That is exactly the error. I think there is a criminal antitrust investigation and antitrust proceedings, and a party came in and said, well, we would like the same information in order to establish judge i have to take a step back and ask about our jurisdiction in this case. The court has an obligation to assure we have jurisdiction, so with the Supreme Court decision, the Supreme Court held they could not review and impeachment decision of the senate in the nixon case, and they also suggest it would be inappropriate for the court to assist or interfere with impeachment proceedings. If our involvement in this is interpreting the judicial proceeding part of that, to include impeachment, would that impermissibly involved this court . We have not made that argument. We have to make sure we have jurisdiction. Mr. Freeman this court would always have jurisdiction, but i do want to say we are not advancing that argument. The District Court with an injunction to the department of justice to issue grand jury information. We certainly have both standing and jurisdiction from that water , and we think that it is wrong, because i think the premise of the question that an impeachment proceeding in the legislative branch is a judicial proceeding in the sense of criminal judge griffith i think it is an interesting question. Could you address it, whether there is a jurisdictional bar of us looking at the impeachment proceeding . Mr. Freeman so, this issue is not addressed. But i think the answer to that question is there is not a jurisdictional bar. The local rules of the District Court to provide any person, newspaper, anybody can come in supposition of the grand jury, and ask for an order, and once the order is there, then, of course, is a right to seek review of that order. It does not go to the review. It goes to the District Court. Mr. Freeman i agree. And we have not challenged. The Washington Post and grow comes and asks. Thenot challenged Washington Post comes and asks. We have not challenged that. That changes. mr. Freeman the federal judiciary, lets put it this way. Concerns with the standings of the house of representatives to file civil actions against the executive , theh to raise arguments exercising of executive power. We think those are not article three cases. Many other cases pending in District Court and in the courts of appeal, but we do think there are article three problems with the house of representatives trying to create controversies in the federal court. We have not advance that argument here. I agree the court would decide, if it thinks there is a serious question there, and perhaps that is just another case for appeal. Now, i do want to finish the thought. I am not aware of any case, any case, in which the court has held that a need to see all relevant evidence or the complete story or to investigate fully from the District Court opinion. There has been a showing under a rule. There is just none. Now, the argument is that is basically not fair to them because how are we supposed to know with the impeachment proceeding, how should they know what to look for . But there is the premise about whether they are in the right rules at all. As explained, the judicial proceeding in the sense of rules is a proceeding in front of the court. Federal court, state, or local court. Judge rogers in your view then, for the committee to have a , they must bet able to tell the District Court that we want the grand jury because of witness a testified to 1, 2, and three, which the committee is in terms ofg determining whether or not to file charges. Is that the kind of showing . Mr. Freeman yes, they would have to say that we are unable of our own authority to obtain the information about 1, 2, and three. Judge rogers all right, there , but what i ams trying to understand is the thattments position is where a witness testifies before the grand jury, unless that theess reveals voluntarily nature of the testimony, either in interviews with the media or , then a party has no for an exception for to obtainroceedings an order from the District Court . We need to be clear. Mr. Freeman that is not the only way. Give me another way, if the witness does not voluntarily disclose. Mr. Freeman something in the Mueller Report saying they had in a particular document, which the committee is unable to obtain through its own investigative procedures. 1986. Urt decision in in that case, there was an sec situation where they filed a report, wanting grand jury material because we got this information, and this court said it was not good enough, but what might have been good enough is there was a couple of documents at the grand jury had which were illegible or that the committee could not otherwise obtain. That is how this works. Well, no, and judge griffiths question, as the as judge rao, proceedings for all of the reasons that the court has identified, and that is why i am trying to understand. The court is really concerned about a fishing expedition. You just cannot have everything. There is a burden on you to show toticular need, but understand the court saying it had to go so far to identify to 1, 2, and three, and to adding to my hypothetical, that the committee was unable to obtain that information by other normal discovery means. Ireeman so, lets just think we are in agreement. In the argument is there ought to be Something Different under the impeachment proceedings. Judge rogers i did not see anything in the history of the rule or anything you cited to me that goes quite as deep as you are requiring in an impeachment setting. In the impeachment setting, that is the premise i want to try to get to. You pointed it out, something particular. In that case, the court also said, the District Court, granted the release of grand jury information but said it can be used, no copies can be made, you have to return the information to the department of justice when it is done, and it can only be done for the professional recollection of witnesses during trial or deposition, and that was exercise. To impose conditions on the time, manner, or any other condition a District Court may impose on the release of grand jury information. Judge rogers the committee volunteered that it was going to discuss this. Counsel inonly with the same manner. And they suggested that was an acceptable way of proceeding. Mr. Freeman not proceeding at all. But, if i may, on this point, i do not think my friend will agree that a District Court can impose the kind of conditions on the house of representatives or the senate in the impeachment. That is a pretty fundamental judge rogers yes, it is common that is where i think your irreparable harm is. Mr. Freeman yes, and the irreparable harm, this court has held that once information crosses the Event Horizon, then no authority to control it. And that is why to get a stay in this case, but there is a fundament of question about the rules are meant to deal with a congressional proceeding at all. Judge griffith your argument, you are saying that increases the burden . Mr. Freeman no. It is like the particularized for whata mismatch Congress Needs in impeachment proceedings, and i think the reason is that we should not be in this bucket at all. Judge griffith well, we will get to it. I makingan the reason this point about constitutional limitations to judge griffith i see your point. It is not in that bucket. Mr. Freeman if the District Court allows the grand jury information to be released judge griffith if youre in that bucket, it is an increased burden on the house or committee to show particularized need, because you are not going to get it back. Mr. Freeman if you accept all of the thresholds, i do not, but if you did, then, yes, i would think that, because it is irreparable. But i think that again. The fact that the District Courts basic air in this case was approaching the question that it was sufficient to find that it acts as a court or exercises judicial power. I had questions about that. The question is whether this is a judicial proceeding within the rules. There are many statutes and rules that regulate trials and judicial proceedings and judgments and convictions, but no one would say adge rao ok, you say it is different question whether impeachment is a judicial power as opposed to the judicial proceedings . Mr. Freeman yes. Let me give you an example. This court said in 1980 with a maritime proceeding that it was and, judicial proceeding, we know from justice thomass that, for purposes of the 11th amendment, the proceeding of the federal maritime is with the District Court lawsuit, so there you have the argument for constitutional purposes, judicial proceeding and trial, but for rule 16 even though there are judgments, it is not a judicial proceeding. We know in the context of the rule what we are talking about is courts. There is only one other rule in the rules of criminal procedure. Initial proceeding. Rule 53. It has to do with broadcasting video from courtrooms. So what the federal rules of criminal procedure are talking but is procedures in front of courts, state and federal courts. Enroll one of the federal criminal procedure of a judge, defining judicial proceedings, defining judge. An argument with the court . They decide a question for this panel. I do not think that is right. Right. Riffith however you read it, the result is clear, right, that the impeachment proceedings materials they went at it different ways, whether there is authority or judicial proceedin