Transcripts For CSPAN2 DC Circuit Oral Argument On Mueller I

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 shou