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This Honorable Court is again in session.

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Be seated, please.

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Case number 19, District 288, Henry, application of the Committee on the Judiciary, U.S.

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House of Representatives for an order authorizing the release of certain grand jury materials.

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Committee on the Judiciary, United States House of Representatives versus United States Department of Justice Appellant.

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Mr. Freeman for the Appellant, Mr. Letter for the Appellee.

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Good morning again.

[00:00:33] Speaker 06:
Good morning again, your honor.

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May it please the court.

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As the court knows, in the time since the last oral argument in this case, the committee referred to the floor of the House of Representatives, and the House of Representatives approved two articles of impeachment against the president.

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Neither of those articles arises out of the events that were investigated by the special counsel.

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Neither of them concerns the events described in the report of the special counsel,

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And so we're here today facing a different claim of need by the committee.

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In its supplemental brief, and this is at pages 13 to 17 of the committee's supplemental brief, their argument is they need the information, the grand jury information, underlying the Mueller report in order to prove in a Senate trial on the articles of impeachment actually approved by the House, the President's culpability for those high crimes and misdemeanors.

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Now there are a couple problems with that.

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The first is, that's just not the need that the district court found in this case.

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Now as the court knows, we have significant concerns with the test that the district court applied for particularized need.

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We don't think she applied the right test at all, but

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put that aside for the moment.

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What the district court found was that the House of Representatives was acting preliminary to a Senate impeachment trial on misconduct in the Mueller report, described underlying the Mueller report, and that they had a need for that information in order to prove

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that misconduct.

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This is very clear in the district court's opinion.

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If you look at page 67 of the district court's opinion, this is in the six or seven page discussion of particularized need.

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What the district court says is the need here is to investigate fully and form a conclusion about the president's conduct described in the Mueller report.

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And there's a footnote after that sentence or after the citation after that sentence.

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What that footnote says is

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The House Judiciary Committee confirms that although there is a separate discussion about Ukraine and the Ukraine controversy, the House is still focused on the Mueller report and the Mueller investigation.

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So, Mr. Friedman, let me just ask you a question before we get to the merits.

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Yes.

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So the department's position is that the committee would have no standing to enforce its subpoena directly.

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court.

[00:02:51] Speaker 06:
Correct.

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Right?

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And that that would not be justiciable because it would be an inter-branch dispute.

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Right, for all the reasons that we just heard in the previous case.

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That's right.

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So how does Rule 6E change that, right?

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If it's not justiciable and there wouldn't be standing, how does Rule 6E change that?

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So let me say at the outset of this question, I agree this is a very under theorized area.

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We sort of boiled the ocean to try to figure out how courts have

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understood the relationship between a district court's authority over grand jury records under Rule 6E and Article 3 case for controversy requirements.

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So I think it's fairly under theorized area.

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As the court knows, we've not been shy about making objections to the standing of congressional entities to bring lawsuits against the executive branch for years going back to the Harriet Myers case.

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The reason we did not interpose such an objection in this case is because here's how we understood Rule 6E.

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Acknowledging there's not a lot of authority either way on this, but we understand rule 60 to rest on

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or reflect the chief judge of the district courts continuing supervisory authority over a grand jury convened under the auspices of the district court and managed by that district court.

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Now, to be sure, in Williams, the Supreme Court said that supervisory authority that a district court exercises over a grand jury is a very limited one.

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But it has to, at a minimum, include the power to convene and dismiss.

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We know that from the terms of Rule 6 itself.

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And we think that Rule 6E reflects

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an understanding that part of that traditional authority, which the Supreme Court has described as part of the judicial power of the United States, has been the management of the records of the grand jury.

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So if management, though, and by the terms of Rule 60, allows authorization of release, is it your view that the rule itself

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or that the supervisory authority of the district court also allows the district court to compel the department to produce those documents?

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Yeah, so candidly, we thought about this question.

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It's true that- Yeah, those two distinct aspects of the district court's order?

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We've not challenged the district court's ruling on the basis that Rule 6E3E1 or 6E3E says may authorize the disclosure rather than compel the disclosure.

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To be honest, I think that that's just the way that the cases have evolved is that that includes the power to direct.

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The reason we draw that conclusion is if you look at the second provision, not 63E11, the judicial proceeding exception, but the second one, which is at the request of a defendant in order to show misconduct occurring before the grand jury.

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It doesn't seem like a plausible reading of Rule 6E that the district court could authorize it, but that the Department of Justice would then say, well, we don't want to turn over information to a defendant in that circumstance.

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So we think.

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Well, but in that case, though, isn't the standing inquiry arguably different?

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So I mean, a criminal defendant in that case would obviously have standing.

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And so if we view the compulsory process part as part of the Article III power as opposed to the Rule 6E power,

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So we thought that part, if you understand... I mean, but the House's standing is much less clear.

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Yeah, I agree with that completely.

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And so I'm just explaining sort of as a historical empirical matter why we didn't make this objection.

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We understood that anybody, just like, you know, there are rules, district courts have local rules providing for waiver of pacer fees or other things.

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We're able to come in and ask a district court to do something.

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And they may or may not have standing to appeal that.

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But here, and we think any party can come in and ask the district court to exercise its existing jurisdiction under judicial power that has over a grand jury and ask the district court to do something with respect to the district court's records.

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And no court has ever denied the House access to grand jury materials in an impeachment, right?

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There's no example of that.

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There's no example of that.

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And shouldn't that inform our understanding of the rule at practice?

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I guess so.

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I wouldn't think of it as specific to the House, candidly.

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I think to our knowledge, courts have not said to parties coming in and asking in the first instance for an exercise of discretion with respect to grand jury records, you don't have standing to ask.

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Now, then, in this case, the reason we don't think that this case is a case where the court needs to reach, unlike the prior case, in this case, the court needs to reach the Article III standing question is, we think that the committee was permitted to ask, and what the district court did was grant the application and direct the United States to disclose the materials.

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And, of course, we have... It's two separate things, though, right?

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I mean, the committee only sought authorization.

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I think actually the concluding paragraphs of their application asked the court to direct us to do so.

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To direct them to do so.

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And that the court did that.

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But you think that that is all part of the supervisory power of the district court?

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Again, I don't... So when a court commands the Department of Justice to release documents, you think that's just part of its supervisory power for the grand jury?

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I think you could understand, and this is subject to the caveat that I gave you at the outset of this discussion, I think this is a very under-theorized area, and I think if the upshot... Well, so what's your theory then?

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So our theory is that that is encompassed within the district court's supervisory authority over the district court in the first instance, and that's how courts have thought about that.

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But if you disagree with us about that...

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Then the implication is that one thinks of Rule 6E as effectively commencing a new civil action in district court.

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And then we're very similar to the position we were in in the previous case in which this is an institutional injury.

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Obviously they say they need this grand jury.

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So it's the department's position if we were to, if we were to just simply uphold the authorization of release that you would then

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believe the House would need to commence another suit.

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You wouldn't just release the information pursuant to an authorization.

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I would have to take that back to the Department.

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I don't know the answer to that question.

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Moving back to the merits, I think the adoption of the articles of impeachment changes the issues in this case in a couple of fundamental ways.

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The first is, as I mentioned, that's not the need that the district court found.

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So in order to disclose grand jury information incumbent upon the district court, as the committee stresses, to make the finding a particularized need in the first instance,

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The particularized need that the district court found was found in juxtaposition to the Ukraine controversy, which is the controversy at issue in the adopted articles of impeachment.

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So that's one.

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The second reason why we think the articles of impeachment affect the outcome of this case is I think the committee's response to what this court should do in response to the articles of impeachment

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underscores the reasons why, as a constitutional matter, the constitutional problems that would be created by deeming Senate impeachment trial to be a judicial proceeding in the first place.

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We just stop and ask, look at what the district, what the committee wants the court or the district court.

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This is a new position of the Department of Justice, right?

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I'm sorry.

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Before this case, the Department of Justice always took the position that the Senate impeachment trial was a judicial proceeding, but now you're saying differently.

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What changed?

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We discussed this back in November, Your Honor.

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As the court knows, for the last decade or longer, the department has reexamined the proposition that Rule 6E, the understanding that Rule 6E operates sort of in a purposive manner.

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And that's the line of cases that culminates in McKeever, with the argument that we have been making and have been making for more than a decade, since before the Trump administration, since before the Mueller investigation, was Rule 6E is a statute.

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It has to be read as a statute.

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We have to take its terms seriously.

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And if a disclosure is not authorized outside the terms of that statute, then it's not authorized.

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And when this case came up, we realized, and this is as McKeever, of course, was being briefed.

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We said we couldn't be on both sides of this question.

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And the statute, we think, correctly read, for all the reasons in our brief, does not permit the disclosure, does not permit treating a Senate impeachment trial as a judicial proceeding under the terms of the rule.

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And so reading the rule by its terms

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It just isn't a judicial proceeding for which it's a subject.

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Now we do think Congress could enact an amendment to Rule 6E to provide for grand jury information to be disclosed, and presumably it wouldn't require the imposition of a district court, it wouldn't require a showing of particularized need, it would simply work like some of the other automatic disclosure provisions under Rule 6E.

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But it's the committee that's coming here and said, the Senate impeachment trial is a judicial proceeding, and we are going to show that we have a particularized need for this information.

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And I think what's telling is, if you just look at the inquiry that the committee wants, I think this court, maybe Chief Judge Howell, to conduct in the wake of the new articles of impeachment, it's really striking.

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They want, this is footnote 928,

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on page 159 of this impeachment report issued by the House, they say they want to use this information in the Senate trial.

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So I think they want the Court, and they have a number of pages of argument in their brief, they want the Court to find that the House of Representatives has not just a need, but a particularized need to use certain information in the House, in the Senate, to prove the President's culpability for high crimes or misdemeanors in the face of

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The Senate's prerogative to set the rules about whether any of that information will be relevant or even to determine how the trial will be conducted in the first place.

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And of course, this is just like in the prior case.

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Whatever the court says about that question, if we were to answer it, if the court were to say, yeah, they do have a particularized need for this information in support of impeachment Article 1, well, of course, that judgment will be article

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Article 2 is what you heard in the previous argument.

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No, I'm serious.

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As to McGann, that's what they say.

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In this case, I think, I'm not quite sure.

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I'd be interested to hear what counsel says.

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Does the court notice Article 1 is?

[00:12:22] Speaker 03:
No, but I'm trying to focus you on the fact that the committee's argument is why this is still needed information, even with regard to the two articles it has found.

[00:12:35] Speaker 06:
Yeah, they have their, and I'd like to talk about the merits of the claimed need.

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I just wanted to pause for a moment and say, in addition to our arguments, but the plain text and how by their admission in their red brief, the term judicial proceeding has a different meaning in rule one in the first part of rule 16.

[00:12:50] Speaker 05:
Well, you've got a lot of history going up against you, counsel, and you even have Alexander Hamilton.

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I don't think there's a song about Federalist 65, but it's there, right?

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I mean, it's a judicial,

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So if I just may give our story on that because I think this is right and the court can obviously decide what it thinks about this.

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There's a very different question about whether you describe impeachment as a judicial power or a judicial exercise or a court of impeachment under the Constitution and I agree that's what federal 65 addresses.

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And the question where the rules, 6E of the federal rules of criminal procedure when it says

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preliminary to or in connection with the judicial proceeding.

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But you want to read the word court into there and it's not there.

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What is it?

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She said pure textual argument and in the language that you're looking at it doesn't say court.

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It talks about court elsewhere but not in the critical language that we're looking at.

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in connection with the judicial proceeding and then rule 6EF and G both set the procedures for how that judicial proceeding application work and there it refers to and it obviously assumes that courts are going to be where the judicial proceedings are taking place and the easiest example to see this is if you look at 6EF I believe it is which is the procedure to what to do if the claimed the judicial proceeding where the information is needed is not the same court where the

[00:14:08] Speaker 06:
Court is the court that presided over the grand jury and it says you should Transfer to that court now No one thinks that this quarter chief judge Howell should have transferred this petition to the Senate because it doesn't make sense Even though of course the Senate in some historical sense might be understood as acting as a court We have to read your statutory argument foreclosed by McKeever.

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I don't think it's foreclosed by McKeever your honor.

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Let me explain why McKeever was addressing as

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the court knows, whether there is inherent authority under the Rule 68 to vary from the terms of the rule.

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The argument on the other side was, well, Haldeman rested on an inherent authority theory.

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And our argument response was, no, it was a denial of a petition for mandamus, and it has been understood by this court to speak to the judicial proceeding question.

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And that's what this court said in footnote three of McKeever, is it said, we read

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We read Haldeman as fitting within the judicial proceeding exception.

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Now that doesn't answer the question of whether Haldeman is actually circuit precedent for the correct reading of Rule 6E.

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What it answers is the question whether the denial of the petition for mandamus in Haldeman was with respect to that question.

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Now the denial of a petition for a writ of mandamus, as the court knows, is just a conclusion that the petitioner wasn't clearly and indisputably right.

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When McKeever understands that as a 6E case, I mean, isn't that binding on us?

[00:15:30] Speaker 06:
I don't think McKeever understands in the 6E case what McKeever said.

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I mean as a judicial proceeding that impeachment is a judicial proceeding.

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I think what McKeever understands Haldeman is doing is that Haldeman was a denial of mandamus with respect to 6E and not with respect to the judicial proceeding exception and not with respect to inherent authority.

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It does not answer the underlying question which is whether when Haldeman saying general agreement with a district court's handling of a host of different questions in a three paragraph order

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denied at the petition for a written mandamus, citing the mandamus standard, whether that was establishing affirmative circuit precedent about the correct meaning of Rule 6E.

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And I think a reason not to conclude that is the profound constitutional concerns created by the committee's reading of the rule.

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There are at least two.

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I mean, one,

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The plain text of the rule, which provides for conditions being imposed on parties who ask for grand jury information, I don't think anyone thinks, and the committee conspicuously does not deny this, could not be applied to the House.

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It would be the only judicial proceeding where the petitioner wouldn't be subject to the explicit textual

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power under Rule 6E.

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So normally, if someone says, here's how I read the statute, and you go, well, wait, that makes part of the statute constitutionally inoperable.

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That's under constitutional avoidance principles.

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You say, well, maybe that's not the right way to read the statute.

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The second constitutional concern it creates is exactly the one that we're about to be put in, which is the particularized need exception, the particularized need standard requires a court to find, essentially sit as an evidentiary gatekeeper.

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Now, that makes sense if what's happening is a district court's being asked to disagree.

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Does that standard change when we're in impeachment?

[00:17:04] Speaker 05:
I'm trying to think in past instances, at Watergate, at Clinton, there wasn't this sort of parsing of everything they found, they just turned to the House.

[00:17:16] Speaker 05:
Right, so there are two- So, once again, why shouldn't the history of how grand jury materials have been handled

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in an impeachment help us understand what particularized need means here?

[00:17:29] Speaker 06:
So there are only the two examples that you mentioned.

[00:17:31] Speaker 06:
There's the Nixon example and the Clinton example.

[00:17:34] Speaker 06:
In the Clinton case, the independent counsel had a separate statute, the 595C, which required turning over of impeachment-related information to the House.

[00:17:44] Speaker 06:
That doesn't speak to the particularized need.

[00:17:46] Speaker 06:
That's why that didn't come up.

[00:17:47] Speaker 06:
In the Nixon case, as the court knows, the special prosecutor was supported a request by the grand jury to give the information to Congress and that's when the Haldeman petitions for writs of mandamus came up and said there's no applicable exception and there's no inherent authority and the court denied the petitions for writs of mandamus.

[00:18:07] Speaker 06:
In neither event was the particularized needs standard reached.

[00:18:10] Speaker 06:
So to answer your question directly.

[00:18:13] Speaker 05:
So did Judge Sirica make a mistake by not

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going through the grand jury material and saying, oh, they'll need this, but they won't need that.

[00:18:21] Speaker 06:
I think Judge Rickett didn't reach that question.

[00:18:24] Speaker 06:
Should he have?

[00:18:25] Speaker 06:
He may well should have, and let me explain why.

[00:18:27] Speaker 06:
It is the committee's argument in this case that they

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that they're just like any other judicial proceeding, right?

[00:18:37] Speaker 06:
I mean, they're here saying, yeah, there's a rule, and it's a generally applicable rule to judicial proceedings, and we're a judicial proceeding like any other.

[00:18:43] Speaker 06:
And so we should fit into that test.

[00:18:46] Speaker 06:
Now, that test has been read since the Pittsburgh plate glass case in 1959 to require showing not just of need, but of a particularized need, not just of- All right, but those cases either involve a document being used for potential impeachment,

[00:19:00] Speaker 03:
Here, it's a completely different situation than the district court found, all right, because not only did Chief Judge Sirica elaborated his opinion, his rationale and finding, but this court said, we don't need to add anything, essentially.

[00:19:23] Speaker 03:
All right, which we discussed as essentially incorporating Chief Judge Sirica's analysis.

[00:19:31] Speaker 06:
And- Well, I'm not sure that's right, but-

[00:19:34] Speaker 03:
Well, that's what the court said.

[00:19:35] Speaker 06:
The court said it was in general agreement with the district court's handling of issues that it enumerated.

[00:19:40] Speaker 03:
In general agreement, we do not disagree with anything in particular.

[00:19:46] Speaker 06:
The court can read the opinion better than I. I think it is conspicuous that the Haldeman Court went out of its way not to make any new law with respect to Rule 6E, a point that this court made in McKee.

[00:19:58] Speaker 03:
Well, that's your reading, and all I'm saying is the court said, we don't need to say anything more.

[00:20:02] Speaker 03:
all right, because we're in general agreement.

[00:20:05] Speaker 03:
So I'm trying to understand, Judge Rao has been asking you about McHeever and our interpretation of Haldeman.

[00:20:17] Speaker 03:
And I understand you want to back off both of those and say, as a three-judge panel, that law of the circuit either is not binding on us or is ambiguous

[00:20:32] Speaker 03:
or simply didn't reach the question that's here.

[00:20:36] Speaker 06:
Yes, Your Honor.

[00:20:37] Speaker 06:
We think that Haldeman does not, this is the first case, to our knowledge, in any circuit in which you have a de novo appeal on the correct meaning of judicial proceeding and whether that encompasses a Senate impeachment trial.

[00:20:49] Speaker 06:
And our argument is that Haldeman didn't decide that question.

[00:20:52] Speaker 06:
It denied a petition.

[00:20:53] Speaker 03:
But the district court's finding, it seems to me, didn't go

[00:20:59] Speaker 03:
potential witness by potential witness, but it did make the argument that the committee had found it wanted to have a full and fair proceeding in which it had the evidence before it, that was before the Mueller report, in part one of the Mueller report, and particularly in order to determine the nature and potential extent

[00:21:30] Speaker 03:
of any presidential action that it would find to be impeachable, at least for purposes of returning a bill of impeachment, and that the Mueller report itself stated it was unable to reach a conclusion as to some of these critical points.

[00:21:52] Speaker 03:
So the district court, as I read the opinion, said in order to have a full and fair understanding

[00:22:00] Speaker 03:
of what was before the Mueller report and to make its own determination, it needed to see everything that was there.

[00:22:08] Speaker 03:
The district court agreed.

[00:22:10] Speaker 03:
The 11th Circuit agreed.

[00:22:12] Speaker 03:
In these impeachment cases, it seems to me, and I thought that's what Judge Griffith's question was getting to, we're in a different framework.

[00:22:22] Speaker 03:
We heard a lot about Justice Souter in the other case.

[00:22:26] Speaker 03:
You know, Chief Justice Souter made it clear to the courts that they're not to tell the prosecutor how to try his case, you know.

[00:22:33] Speaker 03:
So that's sort of the same analysis I'm getting at here.

[00:22:36] Speaker 03:
Why wouldn't all that?

[00:22:38] Speaker 03:
simply bind us.

[00:22:40] Speaker 06:
So I have a number of thoughts about what you just said, Your Honor.

[00:22:44] Speaker 06:
Let me take a couple of those points in order.

[00:22:46] Speaker 06:
I think I generally agree with the court's characterization of what Chief Judge Howell did in the district court's opinion in the six or so pages addressing particularized need.

[00:22:57] Speaker 06:
The analysis was basically the particularized need is for a full and fair impeachment proceeding.

[00:23:02] Speaker 06:
And I think that's the basis on which the committee has defended it in this court.

[00:23:06] Speaker 03:
Particularly since the Mueller report said it couldn't reach a conclusion.

[00:23:10] Speaker 06:
But the follow on to that is what the Mueller report also said is that's why we're laying out the evidence in the report.

[00:23:15] Speaker 03:
The fact that a very small portion of it.

[00:23:21] Speaker 06:
They do know that, your honor, because the as part of the accommodation, the Department of Justice made available to the committee.

[00:23:30] Speaker 05:
There's still several hundred reactions.

[00:23:32] Speaker 05:
Two percent, but two percent of a large number.

[00:23:34] Speaker 06:
Yeah, but I think if you just look at them, the relevant redacted pages are reproduced in the joint appendix here beginning at page 503.

[00:23:43] Speaker 06:
Most of the redactions are the citations in the footnotes for propositions that are stated in plain text.

[00:23:51] Speaker 06:
Why so-and-so said such-and-such.

[00:23:53] Speaker 03:
But we all know that a single sentence can be devastating and can lead to both

[00:24:01] Speaker 03:
exculpatory as well as incriminating evidence.

[00:24:04] Speaker 03:
So the length and the percentage is not necessarily positive.

[00:24:08] Speaker 06:
It is relevant to the question whether they really need the information to have not just a need but a particularized need for the information to prove something with respect to an article of impeachment.

[00:24:18] Speaker 03:
Well, the argument that the district court I thought adopted was this is not just a phishing expedition.

[00:24:24] Speaker 03:
Maybe we'll find something that will be relevant to something that maybe we'll someday find, maybe

[00:24:29] Speaker 06:
I think that's just impossible to square with what the district court did.

[00:24:32] Speaker 06:
I don't mean to beat this dead horse, but as the court knows, in the only time that the court pressed counsel to explain the need for redaction, the House said they didn't need it, and the district court gave it to them anyway.

[00:24:44] Speaker 06:
And I would note the topic on which that had to do with Michael Flynn.

[00:24:47] Speaker 06:
Well, there are six or eight other redactions beginning on page 639 or so of volume one regarding Michael.

[00:24:53] Speaker 05:
Well, how do you think the district court should evaluate a particularized need?

[00:24:57] Speaker 05:
I mean, if we disagree with you on the judicial proceeding exception, we say that this applies.

[00:25:02] Speaker 05:
How should the district court?

[00:25:04] Speaker 06:
I think the district court should have gone through on a redaction by redaction basis or at a minimum on a

[00:25:10] Speaker 06:
Grouped redaction by group redaction basis, the six or eight redactions regarding Michael Flynn, for example.

[00:25:15] Speaker 06:
And had the House explained, why didn't you give her the unredacted report to do that?

[00:25:20] Speaker 06:
We were willing to give the district court the unredacted report.

[00:25:23] Speaker 06:
If the court remands for a new finding of particularized need with respect to the new articles of impeachment, if the district court wishes to see it, we will give, in camera, the unredacted report to the district court.

[00:25:35] Speaker 06:
But she didn't have the unredacted report and she didn't... Was that offer made the first go-round, you're saying?

[00:25:42] Speaker 06:
When it was sort of a way that this case unfolded, if you'll just explain it, when this case came in, the committee's petition was mostly focused on obstruction of justice, and in particular on McGann.

[00:25:52] Speaker 06:
And we thought that what they were looking for was volume two.

[00:25:56] Speaker 06:
So we had a declaration put in that explained all the underlying redactions in camera in volume two, gave those to the district court.

[00:26:03] Speaker 06:
But then it came out in the course of the district court proceeding, pursuant to court order, that in fact, Don McGann never testified before the grand jury.

[00:26:09] Speaker 06:
So the original premise of the petition was not supported, and then the case sort of morphed into, well, the committee needs the information.

[00:26:18] Speaker 06:
in volume one in order to find the motive for the information in volume two.

[00:26:23] Speaker 06:
And for that reason, we never got to the point before the hearing where volume one was submitted in unredacted form.

[00:26:29] Speaker 06:
But the department has never opposed that.

[00:26:31] Speaker 06:
We would be willing to do that.

[00:26:33] Speaker 02:
Excuse me.

[00:26:34] Speaker 02:
How does this test, though, for particularized needs, something like a redaction by redaction, a very probing look at what the House needs?

[00:26:42] Speaker 02:
I mean, how is that consistent with the Constitution's commitment

[00:26:46] Speaker 02:
of the impeachment power solely to the House, and also with Walter Nixon, which suggests that courts should not be in the business of aiding and assisting in the impeachment process.

[00:26:57] Speaker 06:
I'm tempted to just say it isn't consistent, Your Honor.

[00:26:59] Speaker 06:
And the reason why I think it isn't consistent is it isn't that this case, that the 6E petition is non-justiciable, but as the Court knows, we strenuously think that

[00:27:10] Speaker 06:
The committee's view that a impeachment proceeding is a judicial proceeding puts courts in the position of making judgments They are not equipped to make and under the Constitution should not be making and that's a reason to reject the premise It definitely puts say we were to accept that impeachment is a judicial proceeding.

[00:27:28] Speaker 02:
I mean doesn't the courts?

[00:27:30] Speaker 02:
precedence allow some flexibility on particular eyes need depending on

[00:27:34] Speaker 02:
on the nature of the party seeking the information?

[00:27:37] Speaker 06:
It does, yes.

[00:27:38] Speaker 02:
Like in cells engineering?

[00:27:39] Speaker 06:
Yes.

[00:27:40] Speaker 06:
Of course, in cells engineering, the court went on to reject the premise that anything that the government agency there or a government actor asserts is necessary to acquit or to perform its responsibility is for that reason a particularized need.

[00:27:54] Speaker 06:
That's what I understand, in effect, the House's position here today to be.

[00:27:58] Speaker 06:
But yes, the particularized need standard is flexible, but it is always required.

[00:28:02] Speaker 06:
It is two words.

[00:28:02] Speaker 06:
It is always required not just a

[00:28:04] Speaker 06:
need, but a particularized need.

[00:28:07] Speaker 06:
If you come to court in a 6E petition saying my particularized need is something that any defense attorney or prosecutor in any criminal case could also say, I want to have the information handy just in case I know if a witness is lying.

[00:28:22] Speaker 06:
I want to have all of the information available so that I can reach the best possible decision.

[00:28:26] Speaker 06:
That's not a particularized need and this court would not accept that.

[00:28:29] Speaker 06:
for any other judicial proceeding.

[00:28:31] Speaker 02:
But maybe this is different.

[00:28:33] Speaker 02:
I mean, impeachment is very different from other proceedings.

[00:28:35] Speaker 06:
Impeachment is different.

[00:28:36] Speaker 02:
And the Constitution confers that power solely on the House.

[00:28:40] Speaker 06:
And I think that's a reason to reject the premise of the petition.

[00:28:43] Speaker 06:
If you get to it, then if you conclude that not withstanding the constitutional problems that it creates,

[00:28:51] Speaker 06:
we have to answer those questions, then I think we have to be extremely careful about what the particularized need is.

[00:28:57] Speaker 06:
It can't be that 6E is a discovery rule for impeachment.

[00:29:03] Speaker 06:
I mean, that's, I think, how the House and the District Court.

[00:29:05] Speaker 02:
Well, then doesn't that just go back to just disability, then?

[00:29:07] Speaker 02:
I mean, it seems like the department kind of wants to have it both ways, right?

[00:29:11] Speaker 02:
You want the constitutional arguments just where you want them, but not at the threshold.

[00:29:15] Speaker 06:
No, I'm not here resisting a win on any ground, all right?

[00:29:20] Speaker 06:
But we've taken what we think is a principled position here, which is we don't think in fairness, even though we're usually pretty quick to pull the trigger on this, we don't think in fairness that the case as a whole is non-justiciable.

[00:29:36] Speaker 06:
But we do think that the committee's argument on the merits raises constitutional problems, and that's normally a reason to reject a statutory interpretation.

[00:29:43] Speaker 06:
And the court could conclude that a district court couldn't appraise the particularized need in these circumstances.

[00:29:49] Speaker 06:
It could conclude that although a 6E petition may be filed generally 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 trench on the Senate's prerogatives.

[00:30:12] Speaker 06:
This is a very anomalous situation.

[00:30:15] Speaker 06:
But I want to just back up to where I started, which is that the House has now adopted two articles of impeachment that don't have anything to do with the premise of this case.

[00:30:24] Speaker 06:
They concern events that occurred after the Mueller report was completed.

[00:30:32] Speaker 06:
And in its supplemental brief, all the House will say, it'll say two things.

[00:30:35] Speaker 06:
It says it wants to use the information in the Senate trial.

[00:30:39] Speaker 06:
And then if you look at the impeachment report issued by the committee, if you search, just text search that impeachment report for the names of any of the witnesses discussed by the District Court, the Trump Tower meeting, the Seychelles meeting, they don't appear.

[00:30:52] Speaker 06:
The only place any of it 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.

[00:31:01] Speaker 06:
There's one paragraph in which Manafort and WikiLeaks are mentioned, and the whole section, that two-page section, after 120-some pages of Merritt's discussion, is cast as shedding light on the approved articles of impeachment.

[00:31:15] Speaker 03:
What about the House report and its position that its consideration of other articles of impeachment is ongoing?

[00:31:27] Speaker 06:
Yes.

[00:31:27] Speaker 06:
Let me say a couple things about that.

[00:31:31] Speaker 06:
That's the representation by House lawyers in this court.

[00:31:35] Speaker 06:
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.

[00:31:47] Speaker 05:
They want the information and then they'll... I actually thought I heard them say that, but maybe I missed something.

[00:31:51] Speaker 06:
I'll be here when council says there's a very carefully scripted language that appeared in the supplemental briefs both in the began case and in this case in which they say they would consider whether to pursue other questions including possibly considering whether

[00:32:05] Speaker 06:
to do new articles of impeachment.

[00:32:07] Speaker 06:
But then let's just take a separate question.

[00:32:09] Speaker 06:
Let's just look at this from a different angle.

[00:32:10] Speaker 06:
The articles of impeachment approved by the House itself, not by the House lawyers, the actual voted on articles of impeachment.

[00:32:17] Speaker 06:
In Article 2, the House told us what the scope of its inquiry was.

[00:32:21] Speaker 06:
It says the House has conducted an impeachment inquiry focused on the President's alleged

[00:32:27] Speaker 03:
I know, because it's talking about those two particular.

[00:32:29] Speaker 03:
It doesn't say that it is foreclosed for the consideration.

[00:32:32] Speaker 06:
I agree with that.

[00:32:33] Speaker 06:
We're not arguing that it's moot because they cannot.

[00:32:35] Speaker 06:
But I think when that, the House is coming in here and they're telling you, this is preliminary to a judicial proceeding on the Mueller report, the conduct of the Mueller report.

[00:32:44] Speaker 06:
The court needs to have some confidence that it is actually preliminary to a Senate impeachment trial about the conduct of the Mueller, described in the Mueller report, before they can invoke this mechanism.

[00:32:54] Speaker 03:
I don't understand that argument.

[00:32:56] Speaker 03:
This is the council representing the committee on behalf of the House.

[00:33:03] Speaker 03:
This is not some casual remark.

[00:33:06] Speaker 06:
Of course.

[00:33:08] Speaker 06:
We're not second guessing anything that they're saying.

[00:33:09] Speaker 06:
What they're saying is look at what they are saying.

[00:33:11] Speaker 06:
Put it this way, if they had come into district court and said, it's possible we will consider whether to impeach.

[00:33:20] Speaker 06:
So we would like a 6E petition to be granted as preliminary to the Senate impeachment trial.

[00:33:26] Speaker 06:
That petition, I think, would be denied.

[00:33:28] Speaker 03:
I know, but did the department before the district court raise all these objections?

[00:33:32] Speaker 03:
We did, absolutely.

[00:33:33] Speaker 03:
No, no, no.

[00:33:34] Speaker 03:
After the point about Flynn and then counsel for the committee said, well, we'll take that off the table.

[00:33:44] Speaker 06:
Yes.

[00:33:44] Speaker 03:
Did the department say to the district court, now you must go witness by witness

[00:33:51] Speaker 03:
you know, line by line.

[00:33:52] Speaker 06:
Your Honor, we have argued strenuously in our briefs and at the hearing in district court that the particularized need standard requires more than a showing of relevance.

[00:33:59] Speaker 03:
We understand that.

[00:34:01] Speaker 03:
I'm asking you a very particular question.

[00:34:03] Speaker 03:
Did you raise a precise objection?

[00:34:05] Speaker 03:
I don't recall if... I didn't find it in the transcript of the district court proceeding.

[00:34:11] Speaker 03:
I don't think that... But you're more familiar with the record than I am.

[00:34:13] Speaker 06:
Yes, but I don't think, Your Honor, that, first of all, that the district court did, that the fact that the district court ordered the disclosure of

[00:34:22] Speaker 06:
redacted grand jury information for which the House admittedly has no need and under a theory that we think is mistaken as a matter of law, that is more than ample basis for us to appeal that.

[00:34:32] Speaker 03:
And of course the one that... That's what I'm trying to get you to deal with, is that's ignoring what the House

[00:34:39] Speaker 03:
committee has said.

[00:34:40] Speaker 06:
And what the House committee has said is they want to do a full and fair impeachment.

[00:34:43] Speaker 06:
And our argument is that if someone came in and said I wanted to do a full and fair trial, a full and fair criminal case, a full and fair civil proceeding, that would not be a sufficient basis under any account of Rule 6E.

[00:34:54] Speaker 03:
Well, the 11th Circuit disagreed with you.

[00:34:56] Speaker 06:
The 11th Circuit, and I think they were wrong about that.

[00:34:59] Speaker 03:
All right, but there is a circuit out there that disagrees with the Justice Department's interpretation.

[00:35:04] Speaker 03:
Of what?

[00:35:05] Speaker 03:
And that impeachment is a different kind of proceeding

[00:35:09] Speaker 06:
That question was not litigated in that case.

[00:35:11] Speaker 06:
It was assumed.

[00:35:11] Speaker 03:
Ah, but they ordered all to be released.

[00:35:14] Speaker 03:
And you know, 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 the course of trials, these grand jury transcripts.

[00:35:28] Speaker 06:
Grand jury information is allowed to be used in the course of trials.

[00:35:32] Speaker 03:
I understand that, but I'm just getting at you.

[00:35:35] Speaker 03:
I think that you can say that,

[00:35:37] Speaker 03:
your argument works best if the House has said we're done, you know, the impeachment inquiry and consideration is closed.

[00:35:46] Speaker 03:
That's not what the House has said.

[00:35:48] Speaker 06:
I agree that that's not what the House has said, but we are right now as to the House's power to impeach with respect to the Mueller Grand Jury, the conduct that issued in the Mueller Grand Jury proceedings, the same place we were the first day of this Congress.

[00:36:00] Speaker 03:
As an indication of pattern and practice.

[00:36:03] Speaker 06:
As an indication of pattern and practice, they submit this information.

[00:36:07] Speaker 06:
This is for use in the Senate impeachment trial.

[00:36:09] Speaker 06:
This is the point I started with.

[00:36:10] Speaker 06:
That is not the need that the district court found.

[00:36:12] Speaker 06:
The district court found that the need for this information was to prove it for the president's conduct in the Mueller report.

[00:36:19] Speaker 06:
What they say now, for four or five pages of their supplemental brief, before a one paragraph reference, they might impeach again.

[00:36:25] Speaker 06:
is they want to use it in the Senate impeachment trial.

[00:36:27] Speaker 06:
That is not the reason why the district court thought they were able to do it, and the district court explicitly bracketed off that question.

[00:36:33] Speaker 06:
That's footnote 47 on page 4.

[00:36:35] Speaker 02:
So instead, though, you want the district court to carefully try to figure out what information the House should use in its impeachment.

[00:36:43] Speaker 06:
I think that's that.

[00:36:44] Speaker 02:
But you think that's permissible under Walter Nixon.

[00:36:47] Speaker 06:
That's the House's view of what is supposed to happen.

[00:36:49] Speaker 02:
But that's your view if we get past the various threshold questions.

[00:36:54] Speaker 02:
Your view is the district court needs to dig in and figure out what's necessary.

[00:37:00] Speaker 06:
If that's permissible, and in district court, we may well argue that the Senate, the prejudgment of what is relevant in the Senate impeachment trial is off the table for the district court altogether.

[00:37:10] Speaker 06:
But if, at a minimum, what they need to be

[00:37:13] Speaker 06:
saying to satisfy a particularized need standard is they have not just a need but a particularized one.

[00:37:18] Speaker 06:
They have lots of witnesses who've come in and testify as to questions.

[00:37:21] Speaker 06:
The only need they've cited this information for is in a consistency to shed light as a consistency with prior practice after 120 pages of the discussion of evidence.

[00:37:31] Speaker 06:
Normally in these cases you require someone to come in and say, my cause of action requires- This isn't a normal case though.

[00:37:36] Speaker 02:
I mean, this is a very different type of case.

[00:37:39] Speaker 06:
I agree, but it is their position that they fit in just like every other litigant.

[00:37:45] Speaker 06:
And they can't have it both ways.

[00:37:47] Speaker 06:
They can't say, this is a judicial proceeding like any other.

[00:37:50] Speaker 06:
But we get special treatment, and we're entitled to not have to satisfy the standard that has governed these proceedings for 60 years.

[00:37:56] Speaker 06:
I don't think this thing is a judicial proceeding like any other.

[00:37:59] Speaker 05:
It's a judicial proceeding, and it's an impeachment of the President of the United States.

[00:38:03] Speaker 05:
No more solemn action will be taken by the House of Representatives

[00:38:06] Speaker 05:
except for declare war, right?

[00:38:08] Speaker 05:
The most solemn action.

[00:38:09] Speaker 05:
And the district court is saying, we're going to, if we're going to err here, and that's not the right word to use, we're going to err on the side of giving them more, not less.

[00:38:18] Speaker 05:
Just the way Sirica did in Watergate, which is the gold standard.

[00:38:22] Speaker 05:
The gold standard.

[00:38:25] Speaker 05:
You may not agree with that.

[00:38:27] Speaker 06:
If the district court had said,

[00:38:30] Speaker 06:
There is a close question whether, for example, witness XYZ's testimony is going to be relevant to the impeachment proceeding.

[00:38:36] Speaker 06:
And I'm going to put a thumb on the scale in favor of impeachment because of the nature of it.

[00:38:41] Speaker 06:
You're saying she just didn't do that.

[00:38:42] Speaker 06:
What she gave them was everything, including things they said that they didn't need.

[00:38:45] Speaker 06:
And we can say that they should have done a redaction by redaction basis or grouped it and said the Mueller report.

[00:38:53] Speaker 05:
And so your point is what she needs to do

[00:38:56] Speaker 05:
If you lose on the judicial exception issue, take the unredacted report and go through and make those sorts of determinations.

[00:39:04] Speaker 05:
You don't think that runs into the Walter Nixon problem?

[00:39:08] Speaker 06:
It may, depending on how it unfolds, run into the Walter Nixon problem.

[00:39:12] Speaker 06:
Again, I understand the court to be saying that it is not interested in this argument, but I think that is the reason why the premise of this case is mistaken.

[00:39:19] Speaker 06:
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.

[00:39:29] Speaker 06:
But 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,

[00:39:42] Speaker 06:
You don't get everything, you have to show a particularized need and on a witness by witness or group of redaction by group of redaction basis, needs to find a particularized need and not give them grand jury information.

[00:39:54] Speaker 05:
How long would that take?

[00:39:55] Speaker 06:
We would be prepared to proceed as we have on appeal.

[00:40:00] Speaker 06:
How long would it take for a district court to do that?

[00:40:02] Speaker 06:
I don't know, Your Honor.

[00:40:03] Speaker 06:
I think that would be up to the district court, but we would be prepared to brief it on this.

[00:40:06] Speaker 03:
I guess I'm not clear as to what the district court does.

[00:40:09] Speaker 03:
district court looks at something and says, well, I don't think that's relevant, so I'm not going to give it to them.

[00:40:14] Speaker 03:
And then the committee says, but your honor, it is relevant.

[00:40:17] Speaker 03:
And here's why.

[00:40:18] Speaker 03:
And so the whole notion that the district court cannot control either the Senate trial or control documents it would order to be released.

[00:40:30] Speaker 03:
This is the question of how far can the district court go when a representation is made that

[00:40:37] Speaker 03:
Candidly, there is no reason not to take it face value.

[00:40:40] Speaker 06:
Well, I think the representation that they need at all, we know not to take at face value.

[00:40:45] Speaker 06:
The House retrenched from that.

[00:40:47] Speaker 06:
And if I just make even another- You trust the House what?

[00:40:49] Speaker 06:
The House retrenched from that.

[00:40:51] Speaker 06:
They backed off of that.

[00:40:51] Speaker 03:
You mean that one witness?

[00:40:52] Speaker 06:
Yes, but I think that's indicative.

[00:40:54] Speaker 06:
Just to give you an example, I mean, I looked through the other redactions.

[00:40:57] Speaker 06:
There's one on page 649, just pick one, of the joint appendix.

[00:41:00] Speaker 06:
This is in the section of the end of the volume one of the Mueller report in which the special counsel is explaining why peripheral players in the investigation were not indicted.

[00:41:10] Speaker 06:
in their grand jury redactions in that section.

[00:41:13] Speaker 06:
Now, that's classic grand jury secrecy to protect the rights of people who were investigated but not indicted.

[00:41:20] Speaker 06:
They are described in the text of the Mueller report as peripheral players, not the other players that they've discussed.

[00:41:25] Speaker 06:
Now, if the House wants to say,

[00:41:28] Speaker 06:
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.

[00:41:35] Speaker 06:
That's a showing that should be made to the district court.

[00:41:37] Speaker 06:
It shouldn't be dumped out en masse.

[00:41:39] Speaker 03:
What I'm getting at is how do they know they're peripheral players?

[00:41:43] Speaker 06:
That's clear from the tech.

[00:41:44] Speaker 03:
You're telling us.

[00:41:46] Speaker 03:
But two district courts have had more faith in the House committee's proceedings and protocol.

[00:41:53] Speaker 06:
uh... the department of justice we're not here expressing any doubt in the feet of the the committee's proceedings we're here saying this is a request for grand jury information the rules are there for a reason to protect very fundamental values to the criminal justice system for example protecting the rights of the innocent who were investigated but not indicted and the particularized needs standard requires the applicant to say here's why i need that and they may come in and say they need the testimony of

[00:42:22] Speaker 06:
you know, Bannon, Steve Bannon, even though Steve's Bannon name doesn't appear in the impeachment report.

[00:42:28] Speaker 06:
But I doubt if they were put to this test that they would come in and say, we need the redactions regarding Michael Flynn.

[00:42:34] Speaker 06:
We need the redactions regarding minor players in the case.

[00:42:37] Speaker 06:
We need the redactions regarding why we know that the Russian Sovereign Wealth Fund invested in the UAE Sovereign Wealth Fund.

[00:42:44] Speaker 06:
These are irrelevant facts that happen to involve grand jury information, but irrelevant to the House impeachment inquiry.

[00:42:50] Speaker 06:
And it is their burden as the applicant to sort those.

[00:42:53] Speaker 03:
You know, we heard a lot about accommodations and agreements.

[00:42:56] Speaker 03:
Why couldn't that happen here as well?

[00:42:58] Speaker 03:
We did make an accommodation offer to the, I know, but not one that satisfied what the house was looking for.

[00:43:06] Speaker 06:
Well, I think we did satisfy in part what the house was looking for.

[00:43:09] Speaker 06:
There was a redacted version of the public.

[00:43:12] Speaker 03:
So this could happen here as well.

[00:43:14] Speaker 03:
And the house is all, the house committee already passed those protocols and the district court put some faith in them.

[00:43:19] Speaker 03:
And indeed chief justice Sirica put some faith in

[00:43:23] Speaker 03:
the committee's handling of such sensitive materials.

[00:43:29] Speaker 06:
The accommodation that we made with respect to the Mueller report was giving the House all of the unredacted information other than the grand jury information that has not been made public.

[00:43:38] Speaker 03:
Other than?

[00:43:39] Speaker 06:
Yes, other than the grand jury information.

[00:43:41] Speaker 06:
That's because 6E bars us from giving it to them.

[00:43:44] Speaker 03:
I know.

[00:43:46] Speaker 03:
All right.

[00:43:46] Speaker 03:
Want to go further or shall we hear from the committee?

[00:43:49] Speaker 06:
Nothing further.

[00:43:49] Speaker 03:
Thank you.

[00:44:12] Speaker 00:
May it please the court, I'm Douglas Leder from the General Counsel of the U.S.

[00:44:16] Speaker 00:
House of Representatives.

[00:44:17] Speaker 00:
With me today at council table is Will Haviman, Assistant

[00:44:21] Speaker 00:
General Counsel of the House and Todd Tatelman, the Deputy General Counsel of the House.

[00:44:26] Speaker 00:
I'd first like to thank my friend, Mr. Freeman, for giving me so much to talk about here.

[00:44:31] Speaker 00:
I love being a lawyer and doing this kind of stuff.

[00:44:35] Speaker 00:
I want to get very quickly to Judge Rao's questions right at the beginning, but before I do that, I think it's essential, because there was so much time spent on this, that I say one thing.

[00:44:46] Speaker 00:
Mr. Freeman is wrong.

[00:44:48] Speaker 00:
The Dennis decision of the Supreme Court makes clear that much of what he argued right now about particularized need is absolutely wrong.

[00:45:02] Speaker 00:
The Supreme Court there said there is no obligation under particularized need to do an in-camera report or an in-camera inspection.

[00:45:11] Speaker 00:
There is no need to go line by line.

[00:45:15] Speaker 00:
Rather, what the Supreme Court has said in cases like Sells Engineering and Dennis and Doe, and I understand Mr. Freeman doesn't like Doe and Dennis.

[00:45:26] Speaker 00:
He'd prefer that they didn't exist, but they do.

[00:45:30] Speaker 00:
And they say that we, courts don't have to do this.

[00:45:33] Speaker 00:
This is largely up to discretion of the district courts.

[00:45:37] Speaker 05:
Mr. Freeman, how could the district court make any analysis under particularized need?

[00:45:44] Speaker 05:
Any analysis?

[00:45:46] Speaker 05:
without having looked at the unredacted material.

[00:45:49] Speaker 00:
She's flying blind on this, hasn't she?

[00:45:53] Speaker 00:
And again, the Supreme Court rejected that very argument.

[00:45:58] Speaker 00:
And so what she has to do is what the court did in Dennis and what the court did in Doe, because for example, this also was not done in the Doe case that we so heavily rely on.

[00:46:10] Speaker 00:
What those cases show is that the obligation of the judge

[00:46:14] Speaker 00:
is to take into account the Douglas oil factors and then make a determination.

[00:46:20] Speaker 05:
How does a judge do that without looking at the materials?

[00:46:24] Speaker 05:
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.

[00:46:35] Speaker 05:
impeachment therefore we get everything.

[00:46:39] Speaker 00:
Does the law say that?

[00:46:40] Speaker 00:
I understand your concerns Judge Griffith and no that is not what we're saying.

[00:46:44] Speaker 00:
Let's look at this specific case.

[00:46:47] Speaker 00:
We have only, we're only talking about what Judge Howell ordered, Judge Howell ordered a very discreet

[00:46:57] Speaker 00:
type of disclosure.

[00:46:59] Speaker 00:
So first of all, we're only talking about the Mueller report.

[00:47:02] Speaker 00:
So we're not talking about all of the Mueller grand jury information.

[00:47:06] Speaker 00:
So first of all, it's limited because it's what Special Counsel Mueller decided to put in his report.

[00:47:12] Speaker 00:
And all that Judge Howell gave us were the redactions and the underlying transcripts about those redactions.

[00:47:20] Speaker 00:
So it's very limited.

[00:47:22] Speaker 00:
Unlike in Dennis,

[00:47:25] Speaker 00:
where the court said, well, gosh, in order to have a fair trial, the defendants are entitled to all of the grand jury material.

[00:47:33] Speaker 00:
No line by line, et cetera, is necessary.

[00:47:36] Speaker 00:
So first of all, it's a small part.

[00:47:39] Speaker 00:
Second, the judge said, we're going to do this in stages.

[00:47:45] Speaker 00:
And so if we look at that very limited 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.

[00:47:54] Speaker 00:
But the key thing is this is already vastly more limited than us just coming in and saying, impeachment, we get everything.

[00:48:03] Speaker 00:
We're not making that.

[00:48:05] Speaker 05:
Maybe you answered this and I didn't understand it, and that could very well be the case.

[00:48:09] Speaker 05:
How is a district court judge supposed to do that without

[00:48:12] Speaker 05:
picking up the unredacted report and looking at it.

[00:48:16] Speaker 05:
I don't get that.

[00:48:18] Speaker 05:
You may be right, the Supreme Court said you don't have to do that.

[00:48:20] Speaker 05:
Okay.

[00:48:21] Speaker 05:
How are you supposed to do your job of making analysis of particularities?

[00:48:26] Speaker 05:
If you don't read this stuff.

[00:48:28] Speaker 05:
Judge Sirica, again, the gold standard here,

[00:48:31] Speaker 05:
He read the whole thing, right?

[00:48:34] Speaker 05:
Read the whole thing before I released it.

[00:48:35] Speaker 00:
So a couple of responses.

[00:48:37] Speaker 00:
First of all, remember that Judge Howell did have before her the in-camera affidavit from the Justice Department explaining what was in the redactions.

[00:48:47] Speaker 05:
For volume two, five pages, says nothing about the 206 redactions.

[00:48:52] Speaker 00:
But there is that.

[00:48:52] Speaker 05:
And yet she released those.

[00:48:53] Speaker 05:
There is that.

[00:48:54] Speaker 00:
And second, it's because I think what Dennis shows is Mr. Freeman is

[00:49:01] Speaker 00:
wrongly understanding what particularized need means.

[00:49:05] Speaker 00:
Particularized need doesn't mean we have to show that at page 14 of the grand jury transcript, line seven, I want that line so that I can impeach at trial

[00:49:21] Speaker 00:
witness Lois Lane.

[00:49:23] Speaker 00:
The Supreme Court has made clear, no, that's not what particularized need is.

[00:49:27] Speaker 05:
What do you think it means?

[00:49:28] Speaker 05:
What does particularized need mean?

[00:49:29] Speaker 00:
It means as it dug the soil, it means... No, in this case... Oh, in this what it means is, particularized need is a balancing.

[00:49:37] Speaker 00:
Right, right.

[00:49:39] Speaker 00:
We look at the needs for grand jury secrecy, as Judge Howell pointed out, and as the Supreme Court pointed out in a batch.

[00:49:46] Speaker 00:
It's done.

[00:49:48] Speaker 00:
So they have almost no reason for grand jury secrecy.

[00:49:53] Speaker 00:
Second is the Supreme Court has said these aren't going to be used against

[00:50:01] Speaker 00:
witnesses who witnesses before the grand jury and then are at trial.

[00:50:06] Speaker 00:
That's extremely unlikely to happen before the Senate.

[00:50:09] Speaker 00:
So it's not that that kind of interest.

[00:50:13] Speaker 00:
So there's almost no nothing left.

[00:50:17] Speaker 00:
on the balance of grand jury secrecy.

[00:50:19] Speaker 00:
Again, the Supreme Court decisions make that absolutely clear.

[00:50:22] Speaker 00:
Mr. Freeman cannot deny that.

[00:50:24] Speaker 00:
He cannot stand up here and deny that.

[00:50:27] Speaker 00:
Second, then, is what is the interest, how is that to be balanced with the interest of justice?

[00:50:35] Speaker 00:
As I think what Judge Rao said, this is the most, this is it.

[00:50:42] Speaker 00:
There's nothing more important

[00:50:45] Speaker 00:
then determining whether the President of the United States should remain the President of the United States.

[00:50:50] Speaker 02:
Before the district court, the committee asked only for authorizing the release of the materials, did not ask for an order compelling the department to produce those materials.

[00:51:03] Speaker 02:
Is that correct?

[00:51:03] Speaker 02:
If we were to uphold the authorization

[00:51:08] Speaker 02:
by the district court, but vacate the order compelling the department to produce that information.

[00:51:14] Speaker 02:
Would it be the House's view that you would need to bring a separate suit to enforce your subpoena?

[00:51:18] Speaker 00:
Absolutely not, Your Honor.

[00:51:20] Speaker 00:
Clearly, I hope when Mr. Freeman gets back up here, he will assure this court.

[00:51:25] Speaker 02:
He said he had to take that question back to the department.

[00:51:27] Speaker 00:
That's stunning.

[00:51:30] Speaker 00:
That's just stunning.

[00:51:31] Speaker 00:
If this court rules

[00:51:33] Speaker 00:
that the House is entitled to this material, the Attorney General is going to say no.

[00:51:37] Speaker 00:
I'm asking you hypothetical.

[00:51:39] Speaker 00:
I'm sorry?

[00:51:40] Speaker 02:
I'm asking you hypothetical.

[00:51:41] Speaker 02:
I mean, and say they don't turn it over, then would there need to be a second?

[00:51:43] Speaker 00:
If they don't turn it over, then this is a little awkward because this was discussed before the prior panel, but I'm going to have to talk about some of this.

[00:51:53] Speaker 00:
Either we could bring an action for subpoena subpoena enforcement, but there were some questions about that, which I want to get to in a moment.

[00:52:01] Speaker 00:
So I guess what we would do is we would use the main remedy that the house has had from the beginning.

[00:52:08] Speaker 00:
We'll send the sergeant in arms over to the justice department.

[00:52:12] Speaker 00:
I cannot imagine.

[00:52:13] Speaker 00:
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 he will bring it to the house.

[00:52:23] Speaker 02:
So you do have some methods of self-help that don't require this court to intervene.

[00:52:27] Speaker 00:
Absolutely.

[00:52:27] Speaker 00:
We can send the sergeant and he can go have a gun battle.

[00:52:29] Speaker 02:
So why not avail yourself of that remedy?

[00:52:33] Speaker 00:
The reason is obvious.

[00:52:34] Speaker 00:
When was the last time that was done?

[00:52:36] Speaker 00:
Clearly, it hasn't been done forever.

[00:52:37] Speaker 00:
Why is it obvious?

[00:52:39] Speaker 00:
And that's why, again, this was

[00:52:42] Speaker 00:
discussed in the first case.

[00:52:44] Speaker 00:
That's why we don't do that anymore.

[00:52:46] Speaker 00:
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.

[00:52:54] Speaker 00:
Instead, we go to court.

[00:52:57] Speaker 00:
Everybody has recognized that.

[00:52:59] Speaker 00:
We go to court.

[00:53:00] Speaker 02:
That's an interesting point because maybe you can help me with this.

[00:53:03] Speaker 02:
I was unable to find any case in which a court had compelled the department to release

[00:53:09] Speaker 02:
grand jury information to Congress.

[00:53:12] Speaker 02:
None of the examples in your brief or in the amicus brief involve compulsory process to the department.

[00:53:19] Speaker 02:
If you can come up with one, I'd be interested to hear it.

[00:53:22] Speaker 00:
I may be wrong, Your Honor.

[00:53:23] Speaker 00:
I'll have to make sure.

[00:53:25] Speaker 00:
I'm not aware of a situation where the Justice Department has opposed Congress.

[00:53:32] Speaker 00:
That's why, as we know, this is

[00:53:34] Speaker 00:
This is an astonishing situation with the Justice Department here, not going along with decades of tradition.

[00:53:42] Speaker 02:
In fact, from the... Well, but if this is the first time that they've opposed, I'm not sure if that's correct, then they still, we have a...

[00:53:51] Speaker 02:
We have a novel question then, at least, as to whether a court has that authority to order that process in an inter-branch dispute between the executive and Congress.

[00:54:01] Speaker 00:
Certainly, and I'm happy to address that right now.

[00:54:05] Speaker 00:
And again, sorry, you heard some of this already.

[00:54:12] Speaker 00:
So is there some Article III reason why

[00:54:16] Speaker 00:
the House and or the Senate.

[00:54:19] Speaker 00:
Let's say it was both.

[00:54:20] Speaker 00:
Let's say the Senate has a trial and say, we want this material.

[00:54:25] Speaker 00:
So my understanding is the Justice Department would say, you can't have it.

[00:54:31] Speaker 00:
Senate, House, we don't, even if it's unanimous by all of you, you're not getting it and we can't turn it over because this is in a judicial proceeding.

[00:54:41] Speaker 00:
Why is that not justiciable?

[00:54:44] Speaker 00:
What is it about that that it's not justiciable?

[00:54:46] Speaker 00:
The only thing I've heard is my friend Mr. Mupan's argument that Reigns says it's not justiciable.

[00:54:55] Speaker 00:
Again, that's not what Reigns said.

[00:54:57] Speaker 00:
That's not even close to what Reigns said.

[00:54:59] Speaker 00:
As my colleague, Ms.

[00:55:00] Speaker 00:
Barbero, pointed out, if the Supreme Court were going to announce such an astonishing new rule of law

[00:55:11] Speaker 00:
surely the Supreme Court would say it, and they didn't, because that's not what the Raines case was about.

[00:55:17] Speaker 00:
So you can point at language here and there, but it's nowhere near what the holding in Raines was about, and there is absolutely no reason why this court should take a Supreme Court decision that is 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.

[00:55:41] Speaker 00:
There is no way the Supreme Court would do that without the argument.

[00:55:45] Speaker 00:
The argument isn't that Congress can't go to court.

[00:55:49] Speaker 00:
Go to court against the executive.

[00:55:50] Speaker 00:
I'm sorry, I misspoke.

[00:55:52] Speaker 00:
So there is surely these judges would want at least something in the way of guidance from the Supreme Court that that's what it meant to issue something that would be so amazing.

[00:56:05] Speaker 02:
And yet again you can there's nothing in range and indicated that the court was doing that it's so amazing I mean in the Nixon in the Nixon impeachment the Judiciary Committee in its report made very clear that it felt it could not seek.

[00:56:21] Speaker 02:
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 in its sole discretion, right, that it was, you know, that it's an independent judicial decision could

[00:56:41] Speaker 02:
you know, show a lack of respect to Congress.

[00:56:44] Speaker 02:
And then of course there's the possibility of embarrassing multifarious pronouncements.

[00:56:48] Speaker 02:
So that was the position of the House Judiciary Committee not so long ago.

[00:56:54] Speaker 00:
But the Supreme Court does not say anything at all about that.

[00:56:58] Speaker 00:
In the Nixon case, as we know, the Nixon case was done by Judge Walter Nixon.

[00:57:03] Speaker 02:
It's also exceptional that the House is seeking this type of remedy from the courts.

[00:57:06] Speaker 02:
I mean, both branches have kind of stayed out of the courts.

[00:57:10] Speaker 02:
and allowed us to be sort of out of the frame in these impeachment matters.

[00:57:13] Speaker 00:
Well, in grand jury, seeking grand jury material in the various cases, Hastings, Portius, other impeachments, Nixon, Clinton, the Madison Guarantee.

[00:57:29] Speaker 02:
None of those involved compulsory process by this court.

[00:57:31] Speaker 00:
I know, and that's my point.

[00:57:35] Speaker 00:
It didn't because

[00:57:36] Speaker 00:
the Justice Department now has chosen to go against a couple of hundred years of precedent.

[00:57:44] Speaker 00:
As the amicus brief for the Constitutional Accountability Center points out, since I think it's 1811 was the first time grand jury material was turned over to Congress, there hasn't been a need

[00:57:57] Speaker 00:
for compulsion because in the past, the Justice Department knew what he was supposed to do.

[00:58:02] Speaker 02:
Let me also raise- The number of the cases that are cited, the materials were not in the possession necessarily of the Department of Justice, right?

[00:58:09] Speaker 02:
The Congress received those materials through a variety of different means.

[00:58:12] Speaker 02:
It's not often clear from the record, but what is clear is that none of them involved a court ordering a disclosure by the executive branch of the grand jury materials.

[00:58:22] Speaker 00:
Your Honor, that raises, and as you would say, at least since Watergate, it has involved that.

[00:58:30] Speaker 00:
In the John Doe case, this was dissent by Justices Brennan, Marshall, and Blackman.

[00:58:36] Speaker 00:
But I think, and it cites too, opinion by Judge Whitaker in Procter and Gamble, just to read for one moment.

[00:58:48] Speaker 00:
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.

[00:58:59] Speaker 00:
Instead, those documents are records of the court.

[00:59:03] Speaker 00:
And that's a key ruling, that's a key statement, I'm sorry, it's not a ruling, because the only reason, why does the Justice Department have these materials?

[00:59:16] Speaker 00:
It's convenience.

[00:59:17] Speaker 00:
The grand jury is not an arm of the Justice Department.

[00:59:21] Speaker 00:
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 inter-branch dispute.

[00:59:35] Speaker 00:
It's an inter-branch dispute only because of some convenience that the Justice Department is storing this material.

[00:59:43] Speaker 05:
Could you respond to Mr. Freeman's point, which I think he began his argument with today, and that I had asked about in the previous case, about there have been two articles of impeachment that have been acted upon.

[00:59:57] Speaker 05:
Are you here to say that there may be a third?

[01:00:03] Speaker 00:
I'm going to do the exact same thing that Ms.

[01:00:05] Speaker 00:
Barbaro did, which is in our supplemental brief in response to this court, we tried to be very clear about this.

[01:00:13] Speaker 05:
The answer is yes.

[01:00:14] Speaker 05:
There might be a third.

[01:00:15] Speaker 00:
There might be a fourth.

[01:00:16] Speaker 00:
There might be a third.

[01:00:17] Speaker 00:
Exactly.

[01:00:17] Speaker 00:
The House Judiciary Committee has not finished its work on impeachment.

[01:00:21] Speaker 00:
Nor has the Intelligence Committee.

[01:00:22] Speaker 00:
Both committees specifically said that for two reasons.

[01:00:28] Speaker 00:
The evidence that comes up now might be usable in the Senate trial.

[01:00:34] Speaker 00:
Now, Mr. Freeman was talking about only introducing it in the Senate trial.

[01:00:38] Speaker 00:
That's not all.

[01:00:40] Speaker 00:
It could be that this material is useful to us, the House managers in the Senate trial.

[01:00:47] Speaker 00:
That doesn't necessarily mean- And who are the House managers?

[01:00:49] Speaker 00:
I'm sorry.

[01:00:53] Speaker 00:
I'm glad you asked.

[01:00:53] Speaker 00:
Just a little levity to relay that, okay.

[01:00:59] Speaker 00:
So it could be useful to us.

[01:01:01] Speaker 00:
And then again, if you look at Dennis, that's one of the things that the court was looking at.

[01:01:06] Speaker 00:
Would the entire grand jury transcripts have been submitted to the court?

[01:01:10] Speaker 00:
Obviously not.

[01:01:11] Speaker 00:
That's not the test.

[01:01:14] Speaker 00:
And in addition, as we made clear, the Judiciary Committee could look at this material and then could decide whether to recommend more articles of impeachment.

[01:01:24] Speaker 00:
And I really want to be clear about this, because I think in the media there was some

[01:01:28] Speaker 00:
hysteria that we were going for other articles, et cetera.

[01:01:32] Speaker 00:
We meant exactly what we said.

[01:01:35] Speaker 00:
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 on impeachment.

[01:01:44] Speaker 00:
So yes, that is on the table, there is no doubt.

[01:01:48] Speaker 00:
Mr. Freeman was saying, well, this is totally different from the articles that were sent over, and so everything Judge Howell did is irrelevant.

[01:01:57] Speaker 00:
That also is not true.

[01:01:59] Speaker 00:
as we pointed out, and as in our supplemental brief, to make very clear, that some parts of the Mueller report relate specifically to things that are covered in the articles of impeachment, and that stated, and I think Mr. Freeman may have quoted some of the articles, that stated in the articles, and it's there in the Mueller report.

[01:02:22] Speaker 00:
So for example, it talks about the

[01:02:29] Speaker 00:
concerns about this conspiracy, that the 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 who actually did it.

[01:02:45] Speaker 00:
So it can tie in directly with what is before the Senate.

[01:02:50] Speaker 00:
And there's meetings this can tie in directly to why is President Trump

[01:02:57] Speaker 00:
obstructing Congress.

[01:02:59] Speaker 00:
What's his motivation for doing so?

[01:03:01] Speaker 00:
Why is he doing this?

[01:03:03] Speaker 00:
As you know, Mr. Mueller quoted the famous phrase, I won't use it exactly because of the obscenity, but the president saying basically, oh boy, I'm done.

[01:03:12] Speaker 00:
My presidency is over.

[01:03:13] Speaker 00:
Why did President Trump say that?

[01:03:16] Speaker 00:
Why did he think it was over?

[01:03:18] Speaker 00:
And how does that relate to, is that why he's obstructing

[01:03:22] Speaker 00:
Congress, because that clearly will relate to the impeachment proceedings.

[01:03:28] Speaker 00:
So Judge Rao, you had asked, as you say, I think at the beginning about, you know, can this,

[01:03:39] Speaker 00:
is the case properly here.

[01:03:42] Speaker 00:
We've talked about some of that.

[01:03:44] Speaker 00:
In addition, I just want to emphasize, I know the panel discussed this a bit, it's totally unclear whether this is an Article III function that is going on.

[01:03:53] Speaker 00:
Just like, as we pointed out, there are situations when, by statute, the bodies of Congress come to the court for immunity.

[01:04:03] Speaker 00:
determinations when this court if this court is judicial office article three officers when they're issuing warrants is that an article three

[01:04:17] Speaker 00:
power of the courts.

[01:04:19] Speaker 00:
I don't think it's ever been determined one way or the other.

[01:04:22] Speaker 00:
And part of that is, as we know, district judges sometimes do it.

[01:04:25] Speaker 00:
Sometimes it's magistrate judges who are not life tenured.

[01:04:28] Speaker 00:
It's that Article III power.

[01:04:32] Speaker 00:
So here we have a situation that has been set up by the Supreme Court originally and by Congress, this special

[01:04:39] Speaker 00:
sort of proceeding that we're in front of you today.

[01:04:42] Speaker 00:
It certainly doesn't seem much like your standard Article III power.

[01:04:47] Speaker 02:
If it's not part of the Article III power, then how, I mean, on what theory is it just part of the supervisory power of the district court over the grand jury to order

[01:04:59] Speaker 02:
one branch of the government to turn over materials to another branch of the government.

[01:05:03] Speaker 02:
Could that really just be in its kind of, you know, what the Supreme Court has described as an administrative or supervisory role to aid the grand jury?

[01:05:12] Speaker 02:
It's not aiding the grand jury in this case.

[01:05:16] Speaker 00:
Right.

[01:05:16] Speaker 00:
What it is, it's implementing the Rule 6E.

[01:05:20] Speaker 00:
And that's, I think, the answer.

[01:05:22] Speaker 02:
Does 6E give the district court the authority to order disclosure?

[01:05:28] Speaker 02:
It speaks in the language of authorization of disclosure.

[01:05:34] Speaker 02:
And indeed, your own filings, your own application did not ask for that type of compulsory process.

[01:05:42] Speaker 00:
Again, Your Honor, I guess we'll have to hear from Mr. Freeman.

[01:05:44] Speaker 00:
It will certainly be headlines if Attorney General Barr says,

[01:05:48] Speaker 00:
despite the fact that the DC Circuit, and I assume that would mean the Supreme Court as well.

[01:05:53] Speaker 00:
The Supreme Court says, as it has in a batch of cases, grants a 60 request.

[01:05:59] Speaker 02:
I'm just asking you about the statutory question.

[01:06:02] Speaker 02:
Does the rule itself give the district court that authority?

[01:06:06] Speaker 00:
I need to get the exact language of 6E in front of me and I don't have it with me.

[01:06:13] Speaker 00:
One of my colleagues is going to find it very quickly.

[01:06:15] Speaker 00:
It's not statuary.

[01:06:17] Speaker 00:
Remember, this is a rule.

[01:06:19] Speaker 00:
Even more so then?

[01:06:21] Speaker 02:
If you're saying there's a difference between a rule and a statute,

[01:06:30] Speaker 00:
But the rule is what provides for the secrecy.

[01:06:32] Speaker 00:
There is no grand jury secrecy.

[01:06:34] Speaker 00:
It was under the common law.

[01:06:36] Speaker 00:
And there is now, because of the rule, and the rule provides exceptions to itself.

[01:06:42] Speaker 00:
So if it fits within an exception, then the secrecy wouldn't apply.

[01:06:46] Speaker 00:
So the custodian, the Justice Department, is housing these.

[01:06:53] Speaker 00:
Again, I just find it unfathomable that the Justice Department would say, well, we are the custodian of these.

[01:07:00] Speaker 00:
And even though there is no legal ground to continue to hold them, we're going to do so anyway.

[01:07:07] Speaker 00:
I guess that may be, in which case we would be, thank you very much.

[01:07:11] Speaker 02:
Well, my question isn't so much about what the Department of Justice would do.

[01:07:14] Speaker 02:
It's really about what the specific power is of the district court to order the two different types of relief.

[01:07:21] Speaker 02:
One is authorization.

[01:07:22] Speaker 02:
One is the compulsory process.

[01:07:24] Speaker 02:
And I think that that, I mean, I think Mr. Freeman is right.

[01:07:27] Speaker 02:
This is under theorized in the cases.

[01:07:30] Speaker 02:
And so I'm interested in what your understanding of that relationship is.

[01:07:43] Speaker 00:
Your Honor, I have to admit, I have never thought of this before.

[01:07:47] Speaker 00:
I guess because as a Justice Department attorney, I think I would have been embarrassed to stand up here and say that if a 60-year order was issued, the Justice Department would not comply with it.

[01:07:58] Speaker 00:
And the, I'm just been handed the discourse order.

[01:08:01] Speaker 00:
It says dear Jay is ordered to provide promptly.

[01:08:04] Speaker 00:
So the discord did order.

[01:08:05] Speaker 02:
I know they did.

[01:08:06] Speaker 02:
Right.

[01:08:06] Speaker 02:
That was not the relief that you saw in your application.

[01:08:09] Speaker 00:
But it is, it's what's before this court is the discourse order.

[01:08:13] Speaker 02:
Right.

[01:08:14] Speaker 00:
Right.

[01:08:14] Speaker 00:
Um, and so, so this would be the attorney general bar would, uh, I guess be violating an injunction.

[01:08:24] Speaker 00:
Um,

[01:08:25] Speaker 00:
which is punishable, I assume, by contempt, therefore.

[01:08:29] Speaker 02:
None of my arguments go to what the attorney general would not do.

[01:08:32] Speaker 02:
I'm not suggesting what he would do in that case.

[01:08:34] Speaker 02:
I'm asking what would happen in a case where there was no injunctive, you know, a compulsory process to the Department of Justice.

[01:08:42] Speaker 00:
Well, then I guess we would knock on the door of the Justice Department, and we would sit sergeant at arms.

[01:08:46] Speaker 00:
We'd send him down there.

[01:08:47] Speaker 00:
He would knock on the door and say, I'm authorized to get this.

[01:08:53] Speaker 00:
I'm not sure why you're saying it doesn't have to do with the Justice Department.

[01:08:57] Speaker 00:
They're the custodians for the moment.

[01:08:59] Speaker 00:
They don't need to be.

[01:09:03] Speaker 00:
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 it would say the Justice Department won't be the one storing them anymore.

[01:09:14] Speaker 00:
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 obviously most unfortunate.

[01:09:26] Speaker 00:
But again, let me go back to, fortunately my colleague has pointed out, what's before this court is an order from the district court to turn over the material under Rule 60.

[01:09:38] Speaker 03:
Let me go back to the district court order itself.

[01:09:42] Speaker 03:
During the hearing, you acknowledged that materials regarding Flynn could be taken off the table.

[01:09:54] Speaker 03:
How is that consistent with the district court order directing all of the redacted grand jury?

[01:10:04] Speaker 00:
Your Honor, I think that would be a waiver just like a criminal defendant says, I want the grand jury transcripts.

[01:10:13] Speaker 00:
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.

[01:10:25] Speaker 03:
So why doesn't that put some burden on the district court to at least ask, well, are there other things you don't need?

[01:10:33] Speaker 00:
What did we say we didn't need?

[01:10:35] Speaker 03:
Well, since you're taking that off the table, Mr. Flynn off the table, wouldn't that alert the district court?

[01:10:42] Speaker 03:
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?

[01:10:50] Speaker 03:
And your response is no.

[01:10:53] Speaker 00:
That's right.

[01:10:53] Speaker 00:
Because of, as I say, the Dennis decision, the law of the Supreme Court is the court doesn't have to do that.

[01:11:01] Speaker 03:
But all I'm getting at is the district court knows you don't need anything as to Mr. Flynn, yet it gave you Mr. Flynn as well.

[01:11:08] Speaker 00:
And again, undoubtedly in Dennis,

[01:11:12] Speaker 00:
there was plenty of the entire grand jury record that went to the defendant.

[01:11:17] Speaker 00:
The defendant once looked at it and said, oh, gosh, I don't need this.

[01:11:20] Speaker 00:
But that wouldn't undermine the validity of the order.

[01:11:24] Speaker 00:
This might also be a good time to, Mr. Freeman made it seem minimized, made it seem like, well, there really isn't much there.

[01:11:32] Speaker 00:
It's footnotes, et cetera.

[01:11:34] Speaker 00:
I'm holding up to you.

[01:11:35] Speaker 00:
You can see this big, giant, dark area in there.

[01:11:41] Speaker 00:
And that's grand jury material that has been without redacted.

[01:11:46] Speaker 00:
So it's not just some footnotes here and there.

[01:11:48] Speaker 00:
And the footnotes could be very key.

[01:11:50] Speaker 00:
For instance, one of the footnotes appears to be, is almost certainly grand jury testimony of Mr. Manafort.

[01:11:57] Speaker 00:
And so these could very well be key.

[01:12:01] Speaker 00:
And Judge Griffith, I'm sorry, but this reminds me another part of what the particularized need is.

[01:12:07] Speaker 00:
that Judge Howell pointed out is that at least several of the people involved in this, it's now clear that they lied.

[01:12:16] Speaker 00:
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.

[01:12:27] Speaker 00:
And so that's another thing why this is particularized that she focused on.

[01:12:35] Speaker 00:
Quickly looking through my points.

[01:12:38] Speaker 00:
Oh, it would also, I think, raise a serious constitutional issue if 6E is read as providing, as Mr. Freeman wants, there's no exception for impeachment.

[01:12:55] Speaker 00:
So Rule 6E would impose secrecy but provide no ability for Congress to get the material.

[01:13:04] Speaker 00:
would raise obvious constitutional problems if the House and the Senate are conducting an impeachment trial.

[01:13:12] Speaker 00:
And remember, the trial, the House managers are presenting material to the Senate.

[01:13:16] Speaker 00:
So it's both Houses participating in an impeachment trial.

[01:13:20] Speaker 00:
And if Congress said, as in these other cases, wow, Hastings, Nixon, Clinton, we have the grand jury material, why don't we have the grand jury material here?

[01:13:31] Speaker 00:
And we want it.

[01:13:33] Speaker 00:
it would raise very serious questions about the constitutionality of 6E if it were that the Supreme Court set a rule saying Congress cannot, under any circumstances, get grand jury material.

[01:13:49] Speaker 00:
Whether that hinders Congress or not, it can't get them.

[01:13:53] Speaker 00:
That would raise a constitutional issue.

[01:13:55] Speaker 02:
Mr. Freeman says, well, there's a constitutional issue because... Where does Congress get the right to grand jury information?

[01:14:03] Speaker 00:
Congress has a right to, in conducting impeachment inquiry, Congress has a right to any information.

[01:14:10] Speaker 00:
It's again, by far, the most important congressional investigation.

[01:14:13] Speaker 02:
Has a judicially enforceable right to any information?

[01:14:16] Speaker 02:
Because that's different from.

[01:14:17] Speaker 00:
Well, again, that's what I talked about earlier.

[01:14:23] Speaker 00:
Yes, there is nothing in the separation of powers doctrine or Article III that says,

[01:14:30] Speaker 00:
that there's no case that comes anywhere close to saying Congress cannot go to court to enforce its investigatory powers.

[01:14:39] Speaker 00:
And as we know, Congress has gone to court to enforce its investigatory powers.

[01:14:44] Speaker 00:
Because the alternative, remember, this is a very amorphous doctrine, what is covered by Article III, water, political question.

[01:14:52] Speaker 00:
The alternative is we can do one of two things.

[01:14:55] Speaker 00:
We can send out our Sergeant Arms.

[01:14:58] Speaker 00:
Last time I think, Judge,

[01:15:00] Speaker 00:
I think it was in the 1930s.

[01:15:02] Speaker 00:
It was done in the 1920s in the McGrath case.

[01:15:05] Speaker 00:
We can send out Sergeant Arms.

[01:15:07] Speaker 00:
We'll arrest Attorney General Barr next time.

[01:15:10] Speaker 00:
He's up at Congress.

[01:15:11] Speaker 00:
I've run into him in the halls there.

[01:15:13] Speaker 00:
So next time he's there, we'll just arrest him.

[01:15:15] Speaker 00:
And we can go about it that way.

[01:15:17] Speaker 00:
Or we can shut down the government.

[01:15:19] Speaker 00:
There's a great way for Congress to get information.

[01:15:23] Speaker 00:
We'll shut down the entire government.

[01:15:26] Speaker 00:
for a couple of months.

[01:15:27] Speaker 00:
We saw what a disaster that was.

[01:15:30] Speaker 00:
Why would it possibly be, why would the courts want to say that this very amorphous doctrine requires the House either to send out its sergeant in arms to physically arrest executives

[01:15:46] Speaker 00:
cabinet members or shut down the entire government as opposed to go to court.

[01:15:51] Speaker 00:
There's nothing in Reigns that discusses that.

[01:15:53] Speaker 00:
I can't see where that would possibly come from.

[01:15:56] Speaker 03:
Well, I'm assuming you heard the argument from the department in the McGann case, relying heavily on Reigns.

[01:16:03] Speaker 03:
And what did he say?

[01:16:05] Speaker 03:
The six pages that Chief Justice Rehnquist waxes eloquent on why the court should avoid

[01:16:12] Speaker 03:
involvement in these inter-branch disputes.

[01:16:17] Speaker 00:
Right.

[01:16:17] Speaker 00:
And nowhere, nowhere does, as I recall, nowhere does he talk about congressional investigations, which as we know for many decades have been enforceable in courts.

[01:16:29] Speaker 02:
And nowhere... This is an impeachment investigation.

[01:16:32] Speaker 02:
It's not a legislative investigation.

[01:16:34] Speaker 00:
So it's even more important

[01:16:36] Speaker 00:
Right.

[01:16:37] Speaker 00:
Thank you for reminding me of that.

[01:16:39] Speaker 00:
It's even more important.

[01:16:40] Speaker 02:
It's more important, but it's more of a political question.

[01:16:43] Speaker 00:
Oh, I don't think so, Your Honor.

[01:16:44] Speaker 00:
What Nixon, the Walter Nixon case said is a political question is the courts can't tell Congress, can't tell the Senate how to conduct a trial.

[01:16:54] Speaker 00:
That's totally different from saying the Supreme Court has set up this thing called Rule 6E.

[01:16:59] Speaker 00:
It has imposed secrecy on grand juries.

[01:17:02] Speaker 00:
And this 6E is in the heartland of our experience, right?

[01:17:06] Speaker 00:
Absolutely.

[01:17:06] Speaker 05:
We supervise the grand jury.

[01:17:08] Speaker 05:
So I'm actually making a point that I think cuts against you.

[01:17:11] Speaker 05:
I think it's different.

[01:17:13] Speaker 05:
It's a different sort of power that's being exercised by the courts than is the larger issue that you're

[01:17:21] Speaker 05:
speaking to about whether Congress can resort to the courts to enforce, to get information from the executive.

[01:17:28] Speaker 00:
We also subpoenaed, we issued a subpoena for this information so if we want to

[01:17:35] Speaker 00:
suddenly say, well, you can't do this through 6E, but of course it would be enforceable as a subpoena.

[01:17:40] Speaker 00:
I guess we can go that route.

[01:17:42] Speaker 02:
That lawsuit would more cleanly present the standing and other questions like the other litigation that is pending.

[01:17:47] Speaker 00:
It probably would.

[01:17:48] Speaker 00:
And again, we don't think those arguments are.

[01:17:50] Speaker 02:
So this question I asked Mr. Freeman, I mean, why does Rule 6E change that inquiry?

[01:17:57] Speaker 02:
You say it's not even a statute.

[01:17:59] Speaker 00:
Right.

[01:17:59] Speaker 00:
Now, it was at one point passed by Congress, there's no doubt.

[01:18:03] Speaker 00:
The Supreme Court, however, can amend, under the Rules Enabling Act, the Supreme Court can change it at any moment.

[01:18:07] Speaker 00:
It could say, they're actually, 60 is hereby repealed.

[01:18:10] Speaker 00:
Can do that tomorrow.

[01:18:13] Speaker 00:
The reason is because, as I say here, the Justice Department has this material as a custodian.

[01:18:24] Speaker 00:
These are records of the grand jury, which the Supreme Court said in the Williams case is a separate entity under the Constitution, and it is most definitely not an arm of the executive branch.

[01:18:36] Speaker 00:
So it would be fair.

[01:18:37] Speaker 02:
It's also not an arm of the court, according to Williams, right?

[01:18:41] Speaker 02:
It's its own entity separate from all three of the branches.

[01:18:46] Speaker 00:
As I say, in the dissenting opinion, it said they are, these documents are records of the court.

[01:18:53] Speaker 00:
I don't think the Supreme, in Williams the Supreme Court didn't decide on this issue other than to say the grand jury is a separate constitutionally based entity.

[01:19:03] Speaker 00:
But it is surely not an entity of the executive branch.

[01:19:07] Speaker 00:
There's no doubt about that.

[01:19:08] Speaker 00:
So that's why it seems to me this is the, this is an inter-branch dispute only because of this oddity

[01:19:16] Speaker 02:
If it's only the oddity of Rule E, then why not the solution of simply authorizing disclosure and not ordering disclosure?

[01:19:25] Speaker 02:
Then it just puts it back to an inter-branch dispute, gets the courts out of the way.

[01:19:29] Speaker 02:
If Rule 6E is the only thing that's preventing you from getting these materials, authorization should be sufficient.

[01:19:35] Speaker 00:
And then again, we're down to, I know you've been saying we're not.

[01:19:39] Speaker 02:
But then you can bring another suit to enforce the subpoena.

[01:19:42] Speaker 02:
And then the Department of Justice can't stand behind Rule 6E.

[01:19:46] Speaker 02:
They may stand behind other arguments, but they can't stand behind the rule.

[01:19:49] Speaker 02:
If you're saying the rule is the problem, then we can push aside the rule.

[01:19:54] Speaker 00:
But I'm hard pressed to think of what argument the Justice Department would raise why records that are not actually theirs

[01:20:04] Speaker 02:
Well, you keep going back to what the department would do, but my question is why you haven't made an argument for why this court should order the department to release the material.

[01:20:14] Speaker 02:
That is separate from Rule 6E.

[01:20:16] Speaker 00:
And the reason you should order it is because I think everybody understands

[01:20:22] Speaker 00:
that this is how it works.

[01:20:23] Speaker 00:
We have all of these cases.

[01:20:24] Speaker 02:
Except there's not a single case where a court has ordered that type of remedy.

[01:20:29] Speaker 00:
Not a single one that I can find.

[01:20:31] Speaker 02:
And not one that anyone has presented.

[01:20:34] Speaker 00:
The courts do order that remedy all the time.

[01:20:36] Speaker 00:
And the orders go to the Justice Department.

[01:20:39] Speaker 00:
The order is in Dennis.

[01:20:41] Speaker 02:
But in these cases, it's usually where there's a criminal defendant or someone else who clearly has standing and all of the other Article III requirements.

[01:20:48] Speaker 02:
Here, that question is, I think, more murky.

[01:20:51] Speaker 00:
No, because you have said the courts have authority to issue an order about grand jury material.

[01:20:58] Speaker 02:
Authorizing, say, assuming.

[01:21:00] Speaker 00:
No, orders.

[01:21:01] Speaker 00:
Orders, that's what I'm saying.

[01:21:02] Speaker 00:
Dennis had said are the court, constantly the courts are ordering disclosure of grand jury material.

[01:21:08] Speaker 00:
So if they do that, the only reason that it wouldn't happen is if the Justice Department decides we're going to defy that order.

[01:21:18] Speaker 00:
So that's what I'm saying.

[01:21:20] Speaker 02:
But the power to order might be different in this context, where it's the Congress that's seeking the materials, and there's an inter-branch dispute.

[01:21:27] Speaker 02:
It might be different.

[01:21:29] Speaker 02:
or at least arguably different from a case in which a criminal defendant is seeking that material.

[01:21:33] Speaker 00:
I'll try again, but I think we're going round and round.

[01:21:36] Speaker 00:
First of all, it is different in one sense.

[01:21:38] Speaker 00:
The Supreme Court has made clear that disclosures within the government are much easier, and that's another factor, Judge Griffith, that's clearly recognized in the cells and dough cases.

[01:21:50] Speaker 00:
This is a disclosure within the government.

[01:21:52] Speaker 00:
There's a presumption of regularity by the Judiciary Committee.

[01:21:55] Speaker 00:
The Judiciary Committee has still not released the Watergate Roadmap.

[01:21:59] Speaker 00:
The Judiciary Committee knows how to protect grand jury material when it needs to be protected.

[01:22:03] Speaker 00:
So that means the interest and secrecy are even lower than normal.

[01:22:08] Speaker 00:
And again, Judge Rao, it seems to me that our argument is because this is for impeachment, there is no greater need than that.

[01:22:18] Speaker 00:
And therefore, the need is just overwhelming

[01:22:21] Speaker 00:
And it cannot be, there is nothing in any Supreme Court decision that would support the notion that the executive branch can refuse a court order or a court authorization and thereby thwart impeachment.

[01:22:39] Speaker 00:
That would be completely inconsistent with why the framers included impeachment

[01:22:46] Speaker 00:
And this was discussed.

[01:22:47] Speaker 00:
The framers thought about not including impeachment.

[01:22:50] Speaker 00:
They put impeachment in.

[01:22:51] Speaker 00:
Every other president has cooperated with impeachment investigations.

[01:22:56] Speaker 00:
This is the first president

[01:22:58] Speaker 00:
And this is who is not.

[01:23:00] Speaker 00:
And that's part one of the articles of impeachment.

[01:23:02] Speaker 00:
He's doing something totally unprecedented.

[01:23:04] Speaker 02:
Well, this is the first time the House is seeking the court's assistant to get this type of material.

[01:23:08] Speaker 02:
I mean, look at the Nixon impeachment report.

[01:23:12] Speaker 02:
I mean, the history cuts both ways.

[01:23:14] Speaker 00:
It's not just one.

[01:23:14] Speaker 00:
It's the first time only because the Justice Department, for any number of decades, acts responsibly.

[01:23:21] Speaker 00:
And now, suddenly, this Justice Department decides to change what it has told this court

[01:23:27] Speaker 00:
what it has done with other courts, and suddenly say, all three branches have been wrong for decades and decades.

[01:23:34] Speaker 00:
They have no idea what they were doing.

[01:23:37] Speaker 00:
We're here to tell you we can't turn it over to anybody.

[01:23:41] Speaker 00:
That is so clearly wrong.

[01:23:45] Speaker 03:
Anything further you want to cover?

[01:23:48] Speaker 00:
Let me look very quickly, Your Honor.

[01:23:50] Speaker 00:
I'm sorry.

[01:23:50] Speaker 03:
No need to apologize.

[01:23:53] Speaker 00:
I'm sorry, Your Honor.

[01:23:54] Speaker 03:
No need to apologize.

[01:23:56] Speaker 00:
But do look quickly.

[01:24:00] Speaker 00:
Last time we talked a lot about the McKeever point, so I'm just going to be very brief on that.

[01:24:04] Speaker 00:
The DC Circuit held in McKeever what was meant in Haldeman.

[01:24:10] Speaker 00:
It says it.

[01:24:11] Speaker 00:
It can't be any more clear, and it was required as part of its decision.

[01:24:16] Speaker 00:
I just don't get this argument.

[01:24:18] Speaker 00:
You can say McKeever was wrong.

[01:24:20] Speaker 00:
You can say Haldeman is wrong.

[01:24:22] Speaker 00:
Obviously, you can't make, the Justice Department cannot make that argument to this panel, but they could argue it somewhere else.

[01:24:28] Speaker 00:
In addition, they say, well, Haldeman was a mandamus ruling, but no, one of the things the court said there was that the Judge Sirica had acted with, I think it's within the bounds of the law,

[01:24:42] Speaker 00:
The court actually said that.

[01:24:45] Speaker 00:
So it's an interesting mandamus holding.

[01:24:50] Speaker 00:
But again, Kever said what the law is.

[01:24:55] Speaker 00:
Let's see.

[01:24:56] Speaker 00:
I will look very, very quickly here.

[01:25:04] Speaker 00:
Oh, Mr. Freeman was wondering about my bona fides.

[01:25:11] Speaker 00:
Yes, I'm here representing the speaker of the House of Representatives of the United States, the number three constitutional officer.

[01:25:19] Speaker 00:
Yes, I have discussed this with her.

[01:25:21] Speaker 00:
Yes, I am authorized to say that these are the positions of the House of Representatives.

[01:25:26] Speaker 00:
This court, I think the name of the case is Barnett, about a year ago, accepted the representations of the House General Counsel as the positions of

[01:25:35] Speaker 00:
the House and issued a decision upholding, it had to do with the House Chaplain, upholding that determination based on the representation of the General Counsel for the House.

[01:25:47] Speaker 00:
Mr. Freeman said we're at the same place we were the first day of Congress.

[01:25:52] Speaker 00:
That's just absolutely not true.

[01:25:53] Speaker 00:
The Judiciary Committee has gone through any number of

[01:25:57] Speaker 00:
actions, House resolutions, etc.

[01:26:01] Speaker 00:
This investigation is authorized.

[01:26:04] Speaker 00:
There's nothing that has made that the Judiciary Committee and the Intelligence Committee are no longer authorized.

[01:26:09] Speaker 00:
And the last thing I just want to say is the accommodation

[01:26:14] Speaker 00:
I think Mr. Freeman ended with this, but I just want to emphasize it.

[01:26:18] Speaker 00:
There can't be any accommodation because the argument that the Justice Department is making is they are prohibited by law from giving us this material.

[01:26:27] Speaker 00:
So there has been no accommodation.

[01:26:29] Speaker 00:
Accommodations about what, letting us see other stuff, well that's not an accommodation.

[01:26:34] Speaker 00:
There can be no accommodation according to them because they are barred by law.

[01:26:38] Speaker 00:
They would be putting themselves in risk of contempt if they shared any of the grand jury material with us.

[01:26:44] Speaker 00:
is what they are arguing.

[01:26:45] Speaker 00:
So the accommodation argument by their own, they would agree with me, is off the table.

[01:26:52] Speaker 00:
Thank you very much, Your Honors.

[01:26:53] Speaker 00:
I appreciate your patience.

[01:26:55] Speaker 03:
Thank you.

[01:26:57] Speaker 03:
All right, Council for Appellant.

[01:27:00] Speaker 06:
Thank you, Your Honor.

[01:27:01] Speaker 06:
I feel like I have a few points of privilege.

[01:27:03] Speaker 06:
I have just a couple points I want to make.

[01:27:07] Speaker 06:
The first is I want to be clear for the record because I didn't want anything misrepresented.

[01:27:12] Speaker 06:
I'm not here representing that the attorney general would do anything with respect to such an authorization.

[01:27:16] Speaker 06:
My point is just not for me as a career line attorney to decide what to do in that circumstance.

[01:27:21] Speaker 06:
Second, on the merits of what the particularized need standard means and whether the district court should have looked at the material in camera, the Dennis case and the John Doe cases the council cites don't stand for those propositions.

[01:27:33] Speaker 06:
The Dennis case was a case in which four witnesses testified at trial in a criminal case, and the Supreme Court later said in Douglas Oil,

[01:27:41] Speaker 06:
that characterized Dennis as a case where, quote, it was likely that the witness's testimony at trial was inconsistent with the grand jury testimony and so ordered, in fairness for the fair trial rights, access to their grand jury testimony.

[01:27:54] Speaker 06:
Congress later codified that right in the Jenks Act, 18 USC 3500.

[01:27:58] Speaker 06:
That's not, that was a point where the particularized need was evident from the face of the criminal trial.

[01:28:03] Speaker 06:
A number of other circuits, this court has not, but other circuits, including the 10th, 5th, and 7th, in the Lucas case, in the 7th, the grand jury 89-2, and the 10th, and I forget the name of the 5th circuit case, they're cited in our briefs, have actually held that district courts are required, when you don't have that kind of showing, to look at the material in camera.

[01:28:23] Speaker 03:
Those are basically impeachment cases.

[01:28:27] Speaker 06:
Well, those are not impeachment cases, right.

[01:28:29] Speaker 03:
Yeah, so, but our point is, my point is, and I thought the thrust of what Judge Griffith was trying to get at as well, and Judge Rao, is the notion that an impeachment proceeding is different for any number of reasons.

[01:28:46] Speaker 03:
Now that doesn't mean your position doesn't ultimately prevail, but it does force you to deal with that.

[01:28:52] Speaker 06:
Yes.

[01:28:53] Speaker 06:
We agree that the particularized need standard is a flexible one that can take account of that.

[01:28:58] Speaker 03:
I think it was discussed in the earlier... And may be different than in a criminal trial where the defendant is seeking grand jury

[01:29:08] Speaker 03:
transcripts in order to impeach a witness.

[01:29:11] Speaker 06:
But it does not follow that everything that they say they need, they get, or that they don't have to make some strong or particularized need.

[01:29:18] Speaker 03:
But the question is, what is particularized need?

[01:29:22] Speaker 03:
It's what?

[01:29:26] Speaker 03:
It's minimum requirements in an impeachment setting.

[01:29:30] Speaker 06:
That would be a fairly profound statement of law.

[01:29:33] Speaker 03:
No, I mean, what I'm trying to get at is you have

[01:29:37] Speaker 03:
an arm of the government conducting an investigation.

[01:29:42] Speaker 03:
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

[01:29:52] Speaker 03:
assist you in your investigation.

[01:29:55] Speaker 03:
I mean that would be an extraordinary setting and I think that's what the House is arguing here.

[01:29:59] Speaker 06:
I agree and I agree that that's what they're arguing.

[01:30:03] Speaker 06:
I want to make the point that that is actually what was at issue in the Abbott and Associates case in the Supreme Court.

[01:30:09] Speaker 06:
I mean that was the California Attorney General wanted the information.

[01:30:11] Speaker 06:
They said we had a statutory right to it because we don't even know what we don't know and the Supreme Court held that the particularized needs standards still applied in that circumstance.

[01:30:19] Speaker 03:
Well, my question doesn't suggest it doesn't.

[01:30:22] Speaker 03:
The question is, what is the substance of that requirement in an impeachment case?

[01:30:29] Speaker 06:
Again, I think what the House has argued here is that it's the same as just need, and that is not the case.

[01:30:34] Speaker 03:
Judge Rowley- I didn't hear that in all due respect because we asked not only in this day but the earlier day

[01:30:41] Speaker 03:
What was required here?

[01:30:43] Speaker 06:
And I think council was unable to articulate.

[01:30:45] Speaker 06:
I've heard my friend Mr. Letter answer or attempt to answer that question several times.

[01:30:49] Speaker 06:
What does the particularized needs standard require?

[01:30:52] Speaker 06:
Well, it's flexible.

[01:30:53] Speaker 06:
Well, we need to show... Well, Douglas Oil says that.

[01:30:55] Speaker 06:
The court says it, but then what they won't say is anything other than,

[01:30:59] Speaker 06:
The House needs it.

[01:31:00] Speaker 06:
And in fact, they argue that if they don't get the information they need, that that's a constitutional problem in Rule 6E.

[01:31:07] Speaker 06:
My friend just says that they have a constitutional right because of the impeachment power to get this information.

[01:31:12] Speaker 06:
And I find that position astonishing.

[01:31:14] Speaker 06:
I mean, suppose Congress just, this is a statute, suppose Congress passed a statute in Rule 6E and said, in no circumstances shall grand jury information be available for impeachment.

[01:31:22] Speaker 06:
Now, it's not likely they're going to pass that statute.

[01:31:23] Speaker 06:
But do we think that then that statute would be unconstitutional?

[01:31:27] Speaker 06:
Of course not.

[01:31:28] Speaker 06:
This is just information that Congress can specify in a statute who has access to it and when.

[01:31:33] Speaker 06:
And our argument is that the statute that Congress has enacted does not provide the access to this information.

[01:31:39] Speaker 06:
Now Judge Rao, our colloquy earlier, you asked, well what happens if we think it is a judicial proceeding under circuit precedent?

[01:31:45] Speaker 06:
The inquiry in district court raises profound constitutional questions.

[01:31:49] Speaker 06:
Now, 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.

[01:31:56] Speaker 06:
If you think the rule that we don't think you have to go there because we think constitutional avoidance should take you away from that.

[01:32:01] Speaker 06:
But if you think the rule really does cover the circumstance,

[01:32:03] Speaker 06:
And yet it forces exactly the question that the Supreme Court confronted in the Walter Nixon case.

[01:32:10] Speaker 06:
Then the rule is unconstitutional as applied.

[01:32:12] Speaker 06:
To impeachments.

[01:32:13] Speaker 06:
To impeachments.

[01:32:14] Speaker 06:
What should happen is... Because of Walter Nixon?

[01:32:19] Speaker 06:
If their argument is that a particularized needs standard, I think it has to be their argument, the particularized needs standard places a district court in the position of being the evidentiary gatekeeper for a Senate trial.

[01:32:30] Speaker 06:
If that's the conclusion that we come to, then I think that does raise profound constitutional questions about the rule as applied.

[01:32:35] Speaker 03:
That's not the conclusion the court would have to reach.

[01:32:38] Speaker 03:
I know you want us to frame it that way, but it wouldn't be necessary.

[01:32:43] Speaker 03:
if we were to reject your argument, frame it that way.

[01:32:46] Speaker 03:
Because we don't know what evidence would come forth as a result of an order that says someone shall comply with the subpoena.

[01:32:57] Speaker 03:
Then they appear, refuse to testify, exerting privilege, et cetera.

[01:33:05] Speaker 03:
Who knows where it would go?

[01:33:07] Speaker 03:
So we don't get into that, even if we

[01:33:11] Speaker 03:
you know, except the committee's argument.

[01:33:13] Speaker 03:
That's all I'm trying to get at.

[01:33:14] Speaker 03:
Everybody wants to push us into this political battle.

[01:33:18] Speaker 03:
And in some instances, they may be correct, but I just don't think necessarily it means, just because the court makes a decision, isn't that the different sides won't, you know,

[01:33:29] Speaker 03:
view it as supporting their position, but that's a different issue entirely.

[01:33:34] Speaker 03:
But you say you don't think this case is non-justiciable.

[01:33:37] Speaker 06:
No, because we think the right thing to do is construe the statute, not to reach the circumstance.

[01:33:41] Speaker 06:
My overall point is to make these two final points in concluding.

[01:33:44] Speaker 06:
We think what ought to happen here is that Congress ought to enact a statute, Rule 6E, ought to enact a statute that provides for their access to this information in a way that doesn't put a district court in the middle of it,

[01:33:54] Speaker 06:
and doesn't require district courts to sit as evidentiary gatekeepers.

[01:33:59] Speaker 06:
So we think that's what ought to happen.

[01:34:00] Speaker 06:
That is not a constitutional problem with the current statute.

[01:34:03] Speaker 06:
That's not a constitutional problem with our position.

[01:34:06] Speaker 06:
It is not a violation of the separation of powers.

[01:34:08] Speaker 06:
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.

[01:34:16] Speaker 06:
And the final point I would just make about particularized need is, again,

[01:34:20] Speaker 06:
We are not in the same position we were a month ago.

[01:34:22] Speaker 06:
There are now two articles of impeachment.

[01:34:23] Speaker 06:
And the district court's finding of need respected a concern that is no longer present.

[01:34:30] Speaker 06:
The district court explicitly bracketed off the Ukraine controversy.

[01:34:33] Speaker 06:
So whatever else we know, we know that the current finding of particularized need does not support the use of this grand jury information in the Senate impeachment trial.

[01:34:41] Speaker 06:
And for that reason, at a minimum, there should be a remand.

[01:34:45] Speaker 06:
I'm sorry?

[01:34:46] Speaker 03:
How do we know that?

[01:34:47] Speaker 06:
Well that's because she specifically, the district court specifically said that.

[01:34:50] Speaker 03:
District court didn't say it would be on, it would not be relevant in any particularized way.

[01:34:58] Speaker 03:
the two articles that the House might return.

[01:35:02] Speaker 06:
I agree.

[01:35:02] Speaker 06:
To be clear, I'm not suggesting that the district court might not say that they have a particularized need, but it would be a different need.

[01:35:10] Speaker 06:
And the need that she found, which was to 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 it in a Senate impeachment trial on the other articles.

[01:35:23] Speaker 03:
I want to be clear about this.

[01:35:24] Speaker 03:
The committee

[01:35:29] Speaker 03:
is saying it is relevant information.

[01:35:35] Speaker 03:
And they explain why.

[01:35:36] Speaker 06:
And they should make that showing to the district court.

[01:35:38] Speaker 03:
And the district court has already found that the subpoena was designed to enable the committee to make a full and fair determination on the basis of all the evidence.

[01:35:55] Speaker 03:
And so suppose, hypothetically,

[01:35:58] Speaker 03:
It gets the information and it realizes it shouldn't have done one of the articles.

[01:36:05] Speaker 03:
It can act or it gets the information.

[01:36:08] Speaker 03:
It realizes it should have done more.

[01:36:10] Speaker 03:
I'm just saying this situation is somewhat in flux.

[01:36:14] Speaker 03:
I get your point about the ship has moved on, but it hasn't left, you know, its ultimate destination.

[01:36:19] Speaker 06:
Right.

[01:36:20] Speaker 06:
And the district court, what she said was that the information was needed to form a conclusion about the president's culpability for the conduct described in the Mueller report.

[01:36:30] Speaker 06:
And now the House is arguing.

[01:36:31] Speaker 05:
But your argument only goes to if there was a remand, what it would look like.

[01:36:34] Speaker 06:
Yes.

[01:36:35] Speaker 06:
And our point is that you can't just say affirmed for the district court's order on the basis of the current finding of particularized need, because that's not.

[01:36:41] Speaker 06:
Because things have changed.

[01:36:42] Speaker 06:
Because things have changed, yes.

[01:36:45] Speaker 06:
Unless there's anything further.

[01:36:46] Speaker 03:
Thank you very much.

[01:36:47] Speaker 06:
Thank you.