[00:00:00] Speaker 00: Case number 24-5239, in-rate application of the United States run order pursuant to 18 USC 2705B, and power oversight whistleblowers and research at balance for the United States of America. [00:00:15] Speaker 00: Mr. Field for the balance. [00:00:17] Speaker 00: Mr. Hansford for the upload. [00:00:18] Speaker 02: Good morning, Council. [00:00:20] Speaker 02: Mr. Field, please proceed when you're ready. [00:00:23] Speaker 04: May I please report Brian field on behalf of the appellant and power oversight whistleblowers and research elect to reserve 2 minutes for a bottle. [00:00:31] Speaker 04: Your honors there are 2 reasons that the district court's decision here should be reversed and I'll address both in turn first because there is sufficient information in the public domain reversals appropriate under any legal standard. [00:00:43] Speaker 04: And second, the District Court erred in reviewing Empower Oversight's request under Rule 6E. [00:00:48] Speaker 04: On this first point, I'd like to begin where much of the briefing ended. [00:00:51] Speaker 04: This court should reverse the District Court, and in doing so, it need not determine or resolve the question of whether NDO applications are subject to Rule 6E, the common law, or the First Amendment. [00:01:03] Speaker 04: Release under any standard is appropriate because the information is sufficiently public. [00:01:09] Speaker 04: in the OIG report. [00:01:10] Speaker 01: So you don't think that we need to resolve whether or not it's a judicial record or an ancillary proceeding with respect to the grand jury proceedings? [00:01:18] Speaker 04: I think under any standard, release is appropriate here, so the court need not. [00:01:22] Speaker 01: Now, I would say the court can and should conclude that these records are not 6E records, but because the information- Generally, it's not a common law right of access to something that's attended to a grand jury proceeding because that's secret, so wouldn't we have to make a determination one way or the other? [00:01:42] Speaker 04: If we are proceeding down the rule 6E route, 6E yields when the information is publicly disclosed or is in the public domain. [00:01:53] Speaker 04: If we're proceeding down the common law route, the public release and discussion of information weighs in favor of release under the Hubbard factors. [00:02:00] Speaker 04: So all I'm submitting is that there is a way to decide this case short of resolving which path we should be going down. [00:02:07] Speaker 01: The district court actually had an in-camera proceeding and determined that certain documents could be released, but then some redacted and some not released. [00:02:19] Speaker 04: That's correct, Your Honor. [00:02:20] Speaker 04: The district court reviewed the NDO applications in-camera and concluded that certain information could be released and that certain information needed to be redacted. [00:02:29] Speaker 04: We don't think, based on the public record through the OIG report, that that decision [00:02:36] Speaker 04: was correct. [00:02:37] Speaker 04: We think that the redacted material should be released. [00:02:40] Speaker 04: And the reason we think that, there's really four things we know from the OIG report that point persuasively in favor of additional release being necessary. [00:02:49] Speaker 04: First and foremost, we see that the OIG report quotes from NDO applications at pages 41 to 42 of the OIG report. [00:02:57] Speaker 04: If DOJ is correct, [00:02:58] Speaker 04: and NDO applications are protected in Rule 6E materials, DOJ is necessarily arguing that OIG violated Rule 6E. [00:03:06] Speaker 04: That of course can't be the case. [00:03:08] Speaker 04: In fact, in DOJ's brief at page 35, they say the OIG report did not disclose Rule 6E materials. [00:03:15] Speaker 04: How can that be the case? [00:03:17] Speaker 04: We have an OIG report that is quoting the explanatory portions of an NDO application. [00:03:23] Speaker 04: That's precisely what Empower Oversight is asking for. [00:03:25] Speaker 04: And that's precisely what DOJ is saying Empower Oversight cannot have. [00:03:29] Speaker 04: But somehow DOJ's Office of the Inspector General is able to discuss and quote. [00:03:33] Speaker 01: But that report was not before the district court. [00:03:35] Speaker 04: Your Honor, it was not before the district court. [00:03:37] Speaker 01: And I'm just asking that [00:03:39] Speaker 01: What do we do about that? [00:03:40] Speaker 01: Is there a man necessary just for the district court to then look at that report and then look at what its ruling was against that report? [00:03:49] Speaker 04: So in Ray Cheney is instructive here. [00:03:51] Speaker 04: So in Ray Cheney says the fact that this information came out after a district court's decision is not dispositive, the court can still consider it. [00:03:59] Speaker 04: To be sure, in Ray Cheney remanded the case. [00:04:02] Speaker 04: We don't actually think that's necessary here for a few reasons. [00:04:05] Speaker 04: First and foremost is the parties have met issue here quite a bit on the OIG report. [00:04:11] Speaker 04: We fully briefed it in this case. [00:04:13] Speaker 04: We've both sides have had occasion to discuss it. [00:04:15] Speaker 04: We also address the public disclosure point in the district court. [00:04:20] Speaker 04: District court has had an opportunity to see both sides view of what is the relevance of public disclosure and how is that relevant to the 6E analysis in the DOJ's view, in our view under Hubbard. [00:04:33] Speaker 04: Because of those, we think that remand is not necessary. [00:04:36] Speaker 04: And I would also point out that Henry Cheney had a really different fact pattern. [00:04:39] Speaker 04: In that case, it was just a reference from the Office of the Special Counsel stating that there were some immunity questions raised. [00:04:47] Speaker 04: Politico in that case requested remand, and there was an open question as to how much that public statement actually changes the dispute here. [00:04:56] Speaker 04: Our case, I think, is quite different. [00:04:57] Speaker 04: You have a 90-page OIG report that gets into detail about this investigation, gets into detail about the NDO applications, and we've had occasion to brief them. [00:05:07] Speaker 04: So there isn't an open question as to how it changes that dynamic. [00:05:10] Speaker 04: I think it changes it fundamentally. [00:05:11] Speaker 02: With the OIG report, so a couple things. [00:05:15] Speaker 02: There's no dispute that the particular NDO applications in this case, the unredacted NDO applications in this case are not made public. [00:05:28] Speaker 02: They're not already public somewhere. [00:05:29] Speaker 04: The NDO applications that we are seeking are public only after the district reports decision. [00:05:36] Speaker 04: And only two of them of multiple and only as redacted. [00:05:40] Speaker 02: Right. [00:05:41] Speaker 02: And then with the OIG reports, [00:05:43] Speaker 02: Do we know from the OIG report itself that it points to a particular NDO application? [00:05:52] Speaker 04: At pages 41 to 42, the OIG report quotes an example of the boilerplate explanation. [00:05:59] Speaker 02: But it's just a boilerplate example. [00:06:01] Speaker 02: The OIG report itself doesn't [00:06:05] Speaker 02: make public that it relates to a particular NDO application, like with a case number or something like that. [00:06:15] Speaker 02: That's not that kind of connection. [00:06:17] Speaker 04: That's correct. [00:06:17] Speaker 04: I would have two points to respond. [00:06:19] Speaker 04: One is I think we need to step back for a moment and really keep in mind what DOJ's position is here. [00:06:23] Speaker 04: DOJ is not saying [00:06:24] Speaker 04: This particular NDO application is unique and is subject to Rule 6E and has grand jury information in it. [00:06:31] Speaker 04: They're also not saying that portions of it are subject to Rule 6E. [00:06:34] Speaker 04: They're saying NDO applications at large are Rule 6E materials, therefore they have to stay protected. [00:06:39] Speaker 04: So Your Honor's question, yes, it is presumably a different NDO application. [00:06:44] Speaker 04: We actually don't know. [00:06:45] Speaker 04: But if we stipulate that it's a different NDO application, that still raises the question of how can OIG be quoting an NDO application if it's supposed to be private? [00:06:54] Speaker 02: But on your more specific- I thought there were two different things going on. [00:06:57] Speaker 02: I thought that the, and obviously we'll hear from the government, but I thought there's a general argument about NDO applications vis-a-vis rule 16. [00:07:05] Speaker 02: And that may well be, as a general matter, NDO applications that are submitted to a grand jury, in connection with the grand jury, are generally protected grand jury materials for purposes of Rule 6C. [00:07:18] Speaker 02: And then there's the question of, okay, whatever you might think about that, here there's some stuff that's already been made public [00:07:24] Speaker 02: And then the question becomes, with respect to the stuff that's already been made public, does that mean that there's no need any longer to redact this NDO application in particular? [00:07:37] Speaker 04: Your Honor, we would certainly agree with that second point that there is no, given the public disclosure, there's no need to continue the redaction. [00:07:44] Speaker 04: I would point to the deal. [00:07:46] Speaker 02: But I thought the relevant point there is that, well, [00:07:49] Speaker 02: If the material that's already been made public, i.e. [00:07:52] Speaker 02: the OIG report, doesn't point to a specific NDO application and let the public know which specific NDO application it relates to, then whatever might be true about a boilerplate NDO application being out there because of the OIG report doesn't point to any specific NDO application, including the one that's before us now. [00:08:16] Speaker 02: So that part of it hasn't been made public. [00:08:18] Speaker 04: Two points, Your Honor. [00:08:18] Speaker 04: First, I just wanted to close the loop on what I was suggesting earlier, which is DOJ's position at pages 7, 14, and 18 of its brief, point two, NDO applications being subject to Rule 6E. [00:08:31] Speaker 04: At page 14, they say Rule 6E directly covers NDO applications. [00:08:35] Speaker 04: I don't think DOJ is parsing it quite this way and certainly DOJ's counsel can suggest otherwise, but I do want to say it is true that the OIG report doesn't quote Mr. Foster's NDO application, but we also can step back and look at facts and context clues and say we're talking about the same thing here. [00:08:55] Speaker 04: To be sure, DOJ hasn't actually said we're not talking about the same thing. [00:08:58] Speaker 04: They've said Empower Oversight hasn't proven that we are. [00:09:01] Speaker 04: And I would invite the court to ask counsel what DOJ's position is on this. [00:09:05] Speaker 04: But the dates line up, the facts line up, and common sense shows we're talking about the same thing. [00:09:10] Speaker 04: Mr. Foster was Oversight Counsel for the Senate. [00:09:12] Speaker 04: This investigation involved members of the Senate Oversight Committee who were performing oversight of DOJ having their records subpoenaed. [00:09:19] Speaker 04: We know the subpoena was issued in September 2017 in the OIG report. [00:09:23] Speaker 04: So too for Mr. Foster's. [00:09:25] Speaker 04: We know the NDO applications were September 2017 through August 2021. [00:09:29] Speaker 04: So too for the ones involving Mr. Foster. [00:09:32] Speaker 04: I think that these facts put together showing a common sense conclusion that we're talking about the same thing. [00:09:38] Speaker 04: And then we're talking about them in depth. [00:09:40] Speaker 04: We're talking that they are boilerplate. [00:09:42] Speaker 04: When we look at the NDO application that's redacted, it's a very short explanatory section at paragraphs, I think, eight through 10 that really seems to [00:09:51] Speaker 04: show that there's a boilerplate explanation. [00:09:53] Speaker 04: There's no discussion of risks and so forth that would be required under 2705B. [00:10:00] Speaker 01: I am curious about what you would say is the distinction here with respect to whether this should be classified as a judicial record or an ancillary proceeding, because by your statement of suggesting that the government believes all NDO applications are subject to 6E, wouldn't there be a different analysis as to whether or not it's a judicial record or it's an ancillary grand jury proceeding? [00:10:26] Speaker 04: I don't know that that's the threshold question. [00:10:28] Speaker 04: I think judicial records, if we go to how this court addressed these questions in Leopold too, judicial record was a starting point. [00:10:38] Speaker 04: Judicial records can still be subject to 6E. [00:10:41] Speaker 04: It can be a judicial record. [00:10:43] Speaker 04: Common law applies as the default unless Congress has spoken to it. [00:10:48] Speaker 04: So I think that would be the mode of analysis, Your Honor. [00:10:51] Speaker 04: I don't see how one could argue that these are not judicial records. [00:10:54] Speaker 04: These are applications that were filed in order to receive a court order. [00:10:58] Speaker 04: That seems to be in the heartland of a judicial record. [00:11:00] Speaker 01: And the district court kind of skipped over that, just made us a little simple sentence about judicial record and then went right into ancillary record. [00:11:09] Speaker 04: That's correct. [00:11:09] Speaker 04: So I think that the way that I would frame this is the first question is judicial record. [00:11:14] Speaker 04: And Leopold 2 follows the same track. [00:11:16] Speaker 04: Judicial record is the first question. [00:11:17] Speaker 04: Common law applies as default as a second question. [00:11:20] Speaker 04: Has Congress spoken directly to it? [00:11:22] Speaker 04: That's where there's the 6E route if Congress has spoken to it. [00:11:26] Speaker 04: Our position is that Congress hasn't spoken to it because this doesn't fall within the universe of ancillary grand jury records that we see in the Dow Jones case is the best example from this court. [00:11:36] Speaker 04: It really sets out what's an ancillary grand jury record. [00:11:40] Speaker 04: You're talking about things that disclose identities of witness, transcripts of hearings, and the like. [00:11:45] Speaker 04: an NDO application, if you look at 2705B, they don't have to talk about the grand jury's investigation at all in order to justify an NDO application. [00:11:53] Speaker 04: You could talk about a flight risk. [00:11:54] Speaker 04: You could talk about any number of different things. [00:11:56] Speaker 03: How do we know that what you're seeking doesn't do exactly that? [00:12:02] Speaker 04: Well, I mean, that it doesn't disclose this information? [00:12:07] Speaker 03: That it doesn't disclose names, identities, [00:12:11] Speaker 03: to kill our things that the grand jury is looking at. [00:12:16] Speaker 04: No, we are admittedly fighting with one arm tied behind her back because we're fighting against a sealed agenda. [00:12:21] Speaker 03: Yes, but you're presenting the argument. [00:12:23] Speaker 03: It's a slam dunk. [00:12:24] Speaker 03: And I think you're skipping over some of the matters or facts or evidentiary arguments that are presented to the court. [00:12:37] Speaker 03: And so I think you have to address those if you're to prevail. [00:12:41] Speaker 04: Be happy to, Your Honor. [00:12:41] Speaker 04: So I think a few points. [00:12:43] Speaker 04: One is, I do think that with the OIG report, it strains a bit of logic to think that there is any information in the NDO applications that would reveal the inner workings of the grand jury, as this court explained in LeBeau, in Chief Judge Zerner-Boston's decision, or in the Commonwealth of Puerto Rico case, that there's information that's going to reveal some aspect of the grand jury's investigation. [00:13:05] Speaker 04: Those are the standards. [00:13:06] Speaker 04: And from the OIG report and from the briefing, because that's [00:13:10] Speaker 04: In a public briefing, that's not the point that DOJ has made. [00:13:13] Speaker 04: DOJ has stood back and made this point more generally that NDO applications are 6E materials. [00:13:21] Speaker 04: If DOJ wants to make the argument that there's specific grand jury material scattered throughout the application, that's a different argument. [00:13:29] Speaker 04: And in fact, Chief Judge Boasberg addressed a similar argument in the New York Times case we cited [00:13:35] Speaker 04: And Chief Judge Boasberg there addressed the 6E question under parts four and five of the Hubbard factors, privacy and prejudice. [00:13:42] Speaker 03: That is a different factual matter. [00:13:45] Speaker 03: That's not the case we have here. [00:13:48] Speaker 03: I know you want to get to Hubbard, but what the government says is you don't get to Hubbard, all right? [00:13:55] Speaker 03: And you are setting up some threshold [00:14:00] Speaker 03: that you can see the judicial records. [00:14:04] Speaker 03: You can see, at least as I understand it, generally these matters may be under investigation by the grand jury. [00:14:14] Speaker 03: But as I hear your argument today, because the OIG report, as you discuss with the chief judge, talks about, for example, here's what these orders say. [00:14:30] Speaker 03: that the whole analysis changes and we're back to Hubbard. [00:14:36] Speaker 03: And I think that's a leap I'm having trouble following. [00:14:40] Speaker 03: I don't think we even need to make that leap because I do think that- If you're bound by 6E and they're ancillary, you do have to make some sort of jump to get out of 6E. [00:14:52] Speaker 04: And where I was going was, I don't think we're in 6E land to begin with. [00:14:56] Speaker 04: And that's why I see a substantial difference between an NDO application and like a motion to quash. [00:15:04] Speaker 04: A motion to quash. [00:15:04] Speaker 04: You're going to have to discuss the specifics of a grand jury's investigation. [00:15:08] Speaker 03: Nothing to say that what Judge Bounsler had before him in the executive term doesn't do exactly what you said needs to be done. [00:15:17] Speaker 04: I do think, again, the fact that we're now almost a decade on from the investigation. [00:15:22] Speaker 03: But that's another issue. [00:15:23] Speaker 03: That's a Hubbard issue. [00:15:25] Speaker 03: But we're not at Hubbard. [00:15:26] Speaker 04: That's not a Hubbard issue. [00:15:27] Speaker 04: Your Honor, respectfully, that's a 6E. [00:15:29] Speaker 04: But that's a 6E question. [00:15:31] Speaker 04: 6E yields. [00:15:33] Speaker 04: This Court has said that 6E yields when information becomes public. [00:15:37] Speaker 04: So it's precisely within the scope of 6E. [00:15:39] Speaker 03: You know what I'm saying. [00:15:43] Speaker 03: I just don't understand your argument. [00:15:45] Speaker 03: Because you have conceded, I thought, in response to the chief judge's question, that you have no information about specific, do not disclose your orders, that that doesn't appear in the OIG report. [00:16:05] Speaker 04: We concede that we do not know. [00:16:08] Speaker 04: Let me say it differently. [00:16:11] Speaker 04: We concede that the OIG report does not make express reference to Mr. Foster and the NDO applications here. [00:16:18] Speaker 04: That being said. [00:16:19] Speaker 03: Or anyone else specifically in that sense where the chief judge refused to release. [00:16:27] Speaker 04: We do know that the NDO applications [00:16:31] Speaker 04: were NDO applications were filed in this investigation about the seeking of communications records from members of Congress and staff. [00:16:40] Speaker 04: We know that it's from one of those investigations. [00:16:45] Speaker 04: It's related to one of those subpoenas. [00:16:46] Speaker 04: They don't specifically quote Mr. Foster's [00:16:50] Speaker 04: But this wasn't an OIG report saying, oh, and by the way, there was this other NDO application somewhere else, and this is what it said. [00:16:56] Speaker 04: It is from this investigation. [00:16:58] Speaker 04: But admittedly, we know it's not this report. [00:16:59] Speaker 03: Your theory is that once you know, for example, that there's an investigation of a committee and the staff to the committee, that there is no basis for keeping [00:17:20] Speaker 03: the NGO secret. [00:17:24] Speaker 04: I don't think our proposed rule is quite that narrow. [00:17:26] Speaker 04: I think we know. [00:17:27] Speaker 03: I thought that was pretty broad. [00:17:31] Speaker 04: I think that we would, I think the context was again, point to this being from the same investigation. [00:17:36] Speaker 04: If this court were to remand it, we would put in evidence that this is the same investigation. [00:17:40] Speaker 04: That's obviously not in the record below because the OIG report came out later, but that is absolutely information that on remand we can put in the record and have the court look at our evidence. [00:17:50] Speaker 04: This is the exact same NDO application. [00:17:53] Speaker 04: But I don't think that that necessarily, that's a question that even needs to be answered because I still think under this court's Dow Jones decision, an NDO application [00:18:01] Speaker 04: at large, cannot be seen as an ancillary grand jury record. [00:18:06] Speaker 04: I don't think. [00:18:07] Speaker 03: Ever? [00:18:09] Speaker 04: At the whole, I don't think that that analysis carries. [00:18:12] Speaker 02: It's a categorical approach. [00:18:14] Speaker 04: There can be NDO applications that discuss grand jury information, parts four and five of Hubbard. [00:18:20] Speaker 04: I'll give the court an opportunity to assess that question. [00:18:24] Speaker 04: That's where Chief Judge Boasberg addressed it in a different case. [00:18:27] Speaker 04: That's where he should have addressed it here. [00:18:31] Speaker 02: There's no other questions questions at this time. [00:18:34] Speaker 02: We'll give you a little time for about appreciate it. [00:18:40] Speaker 02: Mr. Hansford. [00:18:42] Speaker 05: Good morning and may it please court. [00:18:44] Speaker 05: Eric answered for the United States. [00:18:47] Speaker 05: The district court properly found that this case presents a straightforward application of Rule 6E, which prohibits disclosure of any matter that is occurring before a grand jury. [00:19:00] Speaker 05: And I think I'll start where the argument ended, which is whether or not the NDO application that relates to a grand jury subpoena would normally be treated as Rule 6E material. [00:19:12] Speaker 05: I think this is most [00:19:14] Speaker 05: It is reflected in rule 66, but it's most straightforward in local rule 6.1, which we quote in the brief at page 17. [00:19:23] Speaker 05: That specifically says that an application filed in connection with a grand jury subpoena shall be filed under seal. [00:19:33] Speaker 05: and it can be unsealed if the district court finds that it is not necessary, that sealing is not necessary to prevent disclosure of matters occurring before the grand jury. [00:19:45] Speaker 05: So I think what that straightforwardly says is you start out with this being treated under seal as rule 16 material, it should be unsealed in so far as it [00:19:55] Speaker 05: doesn't disclose as you can unseal without disclosing matters occurring before the grand jury. [00:20:03] Speaker 05: That's precisely the inquiry that the district court engaged in in this case. [00:20:07] Speaker 01: And does the distinction between judicial record and whether it's ancillary matter to how you are saying that next step is with respect to? [00:20:14] Speaker 05: No, I don't think so. [00:20:15] Speaker 05: I think the judicial record [00:20:18] Speaker 05: discussion here is just a red herring. [00:20:21] Speaker 05: I think that what we have is that Rule 6E and Local Rule 6.1 says that these sorts of records are to be sealed insofar as their unsealing would disclose a matter occurring before the grand jury. [00:20:37] Speaker 05: So that is the question. [00:20:39] Speaker 02: For your purposes, it doesn't matter if there's judicial records. [00:20:42] Speaker 02: You're fine if there's judicial records, because I think even the other side, as I understand the argument from this morning and from the briefing, agrees that even if there's judicial records, you still have to ask the question whether they fall within the compass of rule 60. [00:20:54] Speaker 05: I think that's right. [00:20:55] Speaker 05: And it doesn't even really make sense to ask the judicial record question at the threshold, because really the threshold question is, is this rule 6E material? [00:21:04] Speaker 05: That's how it is. [00:21:05] Speaker 02: It can't be disclosed. [00:21:06] Speaker 02: Correct. [00:21:07] Speaker 05: Unless it's a public. [00:21:08] Speaker 05: Exactly. [00:21:09] Speaker 05: And that's how Dow Jones, which I think is maybe the most thorough discussion of this, that's how it approaches this and just says, [00:21:17] Speaker 05: this Rule 6E material. [00:21:18] Speaker 05: We don't need to get into unsealing. [00:21:20] Speaker 05: And so then turning to the OIG report here, I think our threshold argument is that this court should not be considering factual developments that post-state the district court's decision. [00:21:35] Speaker 05: And instead, we would just follow the normal appellate rule that we decide matters based on the record that is before the district court at [00:21:43] Speaker 05: at the time of the district court's decision. [00:21:45] Speaker 03: They do cite that unpublished opinion by our court, though, Henry Cheney. [00:21:51] Speaker 05: So Cheney is unpublished. [00:21:52] Speaker 05: Cheney does take a contrary approach. [00:21:54] Speaker 05: We agree with that. [00:21:56] Speaker 05: It's unpublished. [00:21:57] Speaker 05: We don't find the reasoning of that terribly persuasive. [00:22:00] Speaker 05: It's relying heavily on this 1989 sealed case. [00:22:04] Speaker 05: But the 1989 sealed case makes a passing reference to how in a prior appeal, they had decided to remand at the request of the government, which had prevailed in the original case. [00:22:17] Speaker 05: It is not a holding of sealed case. [00:22:19] Speaker 05: It's kind of a one sentence background discussion. [00:22:22] Speaker 05: And I think there are lots of institutional reasons that we want this rule, that you decide the record based on the, you decide the appeal based on the record before the district. [00:22:32] Speaker 01: But if there has been a later publication, why wouldn't that matter? [00:22:37] Speaker 01: Say that one more time. [00:22:38] Speaker 01: If there has been a later publication of the information, why wouldn't that matter? [00:22:42] Speaker 01: Like if we're deciding something that goes against what's already out in the public universe, why wouldn't it matter that there's been a post-stated record? [00:22:51] Speaker 05: So I think our position is that you could file a new unsealing application that unsealing is often an iterative process. [00:23:00] Speaker 05: That is how it is supposed to work, but that it wouldn't justify a remand in this case. [00:23:05] Speaker 02: And I think it would be the practical difference. [00:23:07] Speaker 02: So if there was a new motion filed, I mean, [00:23:10] Speaker 02: It's not like there's a res judicata problem with filing a new motion or something. [00:23:14] Speaker 05: It's not a res judicata issue. [00:23:16] Speaker 05: I do think it tells you about the default. [00:23:18] Speaker 05: So if you remand, then the default is more litigation on this issue. [00:23:24] Speaker 05: Instead, this court says, affirmed, the district court properly made its decision on the record before it. [00:23:31] Speaker 05: If you want to file a new unsealing application, you could do so. [00:23:34] Speaker 05: Then the default becomes the defendant [00:23:39] Speaker 05: appellant has to seek unsealing a new, has to make that decision a new. [00:23:44] Speaker 05: And I think it's relevant, you can see the relevance in this case, where I think a lot of their arguments relate to the broader principles that are discussed in the OIG report, even though we don't think the OIG report [00:24:01] Speaker 05: acts as a public disclosure. [00:24:02] Speaker 05: As to the specifics here, I think they're broader themes of kind of how it is that DOJ was handling congressional subpoenas. [00:24:11] Speaker 05: Those are reflected in the OIG report, and so I'm not sure that further litigation really would necessarily occur, that the expense of further litigation would make sense in this case just for appellants to make their point further. [00:24:25] Speaker 05: I think it's possible the OIG report already makes that point for them. [00:24:29] Speaker 05: But I think just institutionally, it is better for the government. [00:24:34] Speaker 05: It's better for the court. [00:24:36] Speaker 05: It's better for all parties to have the record be determined by the district court, as opposed to trying to introduce new evidence on appeal that would alter the record. [00:24:47] Speaker 01: Okay, so if you say that it doesn't matter if it's a judicial record or an insulated record and you jump straight to 6C, you're suggesting that C6E supplants the common law right of access? [00:24:57] Speaker 05: Yes, and I think Dow Jones has already held that. [00:25:01] Speaker 05: I think the 2000 sealed case says that. [00:25:05] Speaker 01: And do you think that the district court sufficiently analyzed exactly what we're talking about here in terms of this supplanting? [00:25:12] Speaker 05: Yes, and I think the district court's approach, which is consistent with what the government's arguing here, is that we don't need to get into these judicial record questions because really everything's going to rise and fall on Rule 60. [00:25:25] Speaker 05: And I think I take that to be the approach that the district court made here. [00:25:30] Speaker 05: We do want to say as to the OIG report in line with Judge Srinivasan's questions, the OIG report does not specifically identify the grand jury subpoena allegedly at issue here or any other specific grand jury subpoenas as being discussed in the OIG report. [00:25:50] Speaker 05: It says that we are redacting rule 6E material. [00:25:55] Speaker 05: We're not including rule 6E material. [00:25:57] Speaker 05: We are not making disclosures of a matter occurring before the grand jury. [00:26:01] Speaker 05: And so I think this is also on different footing from Cheney, where in Cheney, everyone, the district court's opinion was based on the premise that it had not been disclosed, that there was this executive privilege litigation going on. [00:26:14] Speaker 05: So nothing about it could be [00:26:16] Speaker 05: disclosed and then by the time of appeal that had been disclosed in a public filing by the government. [00:26:23] Speaker 05: So everyone agreed that did change the analysis. [00:26:27] Speaker 05: Here there is strong disagreement on that. [00:26:30] Speaker 01: And I want to make sure also that we don't have a broad rule that all NDO, are you taking position that all NDO applications would contain some type of secret information? [00:26:39] Speaker 05: No, I mean, I think that so it would have to be in connection with a grand jury subpoena and under the rule 6E principles and the 6.1 principles, it is only sealed in so far as it discusses a matter that is occurring before the grand jury. [00:26:57] Speaker 05: So that is the part that is sealed is if it discusses a matter that is occurring before the grand jury, then it's sealed. [00:27:04] Speaker 02: If it's an NDO application related to a grand jury. [00:27:08] Speaker 02: then it seems like, I'm not suggesting this is necessarily a problem for you, but it seems like looking at the text of Real Seizures so I have it right, seems pretty darn likely that it's gonna involve [00:27:22] Speaker 02: disclosure of a matter occurring before a grand jury if the NDO application were unveiled. [00:27:27] Speaker 05: Yes, I think that's correct. [00:27:29] Speaker 05: And I think we, you know, in our public portion of the brief, we explain why that is generally going to be correct on pages 21 to 22. [00:27:38] Speaker 05: But that is where the ceiling comes from is because it is discussing a matter occurring before a grand jury, which is just always going to be sealed material. [00:27:48] Speaker 05: It's not something special about the [00:27:50] Speaker 02: The text of the rule already talks about the subpoenas that are often tied up with an NDO application. [00:27:56] Speaker 02: Correct. [00:27:56] Speaker 02: Exactly. [00:27:57] Speaker 02: So we know that it sweeps to cover all subpoenas related to grand juries and an NDO application could be seen as an adjunct. [00:28:05] Speaker 02: Correct. [00:28:06] Speaker 05: And Lopez also says that it's going to cover grand jury subpoenas, that those are going to fall under... Oh, go ahead. [00:28:16] Speaker 01: Go ahead. [00:28:17] Speaker 01: I think it was going to switch a little bit, but I want to make sure. [00:28:19] Speaker 01: Okay. [00:28:19] Speaker 01: Just in Bradenor, because there was a remand there, I believe. [00:28:23] Speaker 05: Yes, there was a remand in that case, though it was, I'm sorry, I'm forgetting the ground for the remand at this point, but it was specific as to the [00:28:38] Speaker 05: Well, I guess in Ray North, they disclose much of the independent council report for the most part. [00:28:51] Speaker 01: The report disclosed much of what had been previously disclosed. [00:28:54] Speaker 05: So in Ray North is about the independent council report that is related to the Iran-Contra scandal. [00:29:02] Speaker 05: And I think, I guess, [00:29:06] Speaker 05: Uh and I think what the court says is in that case we there has been such public disclosures um that we think the cat is out of the bag. [00:29:16] Speaker 05: That may be the origination of the cat is out of the bag line. [00:29:20] Speaker 05: Um and so therefore we are going to disclose the independent council report. [00:29:25] Speaker 01: Um I guess I'm not like the OIG report here. [00:29:29] Speaker 05: So the OIG report does not disclose rule 6E material, whereas the independent council report or the discussions of it, the interim reports had disclosed the rule 6E material. [00:29:42] Speaker 05: So that had been disclosed as rule 6E material already. [00:29:46] Speaker 05: The OIG report does not disclose that. [00:29:49] Speaker 05: I guess I'm not remembering if there actually was a—I'm not sure there was a remand in North. [00:29:55] Speaker 01: I think the court actually just— Well, I didn't mean remand. [00:29:57] Speaker 01: They allowed the review of the report. [00:30:01] Speaker 05: That's correct. [00:30:02] Speaker 05: And they found—and I think— [00:30:04] Speaker 05: North is an unusual case where they say kind of, we have to do, we can't do redactions. [00:30:08] Speaker 05: We have to, it has to be all disclosed or all undisclosed. [00:30:14] Speaker 05: But they recognize this is all under, falling under rule 60. [00:30:18] Speaker 05: And then they say, all of this is already out in the public domain. [00:30:22] Speaker 02: And therefore we are going to... I mean, the distinction for you is in North, what was out in the public domain already is different from what is ostensibly out in the public domain now as a result of the OEG. [00:30:32] Speaker 02: Exactly. [00:30:33] Speaker 02: On that question, so I know you've got your threshold point that we shouldn't be talking about the OIG report at all because it comes about after the record that the district was looking at. [00:30:42] Speaker 02: So just put that aside for a second and assume that we're going to look at it, or at least that we can. [00:30:47] Speaker 02: Then on that, [00:30:48] Speaker 02: If we do, it sounds like you're focused on the point that the OIG report actually doesn't itself disclose 16 materials. [00:30:59] Speaker 02: And with respect to the NDO application that's before us here, it doesn't on his face tie anything to a particular NDO application. [00:31:07] Speaker 05: Right. [00:31:08] Speaker 05: So the OIG report does not say that it is discussing the NDO application. [00:31:13] Speaker 05: That's that issue in this case. [00:31:14] Speaker 02: If that were the important criteria, and it could be if that were the important criteria, and I guess the question is what the other side says is [00:31:23] Speaker 02: look, just as a matter of context, you kind of look at the calendars, you align things up and it almost seems like it kind of has to be. [00:31:31] Speaker 02: Um, and so that, I just heard that statement and I'm just putting that, giving you an opportunity to respond to it. [00:31:36] Speaker 05: Sure. [00:31:37] Speaker 05: So, so I would say first they've, they've said that in the abstract, but kind of not said that with specifics. [00:31:42] Speaker 05: They have not pointed to here, you know, line by line here in the OIG report, here's what we have. [00:31:48] Speaker 05: This lines up with this specific subpoena. [00:31:51] Speaker 05: So they've kind of made this [00:31:53] Speaker 05: kind of general argument but have not made the specifics argument that I think you would need to have public disclosure. [00:32:02] Speaker 05: But I think you can look at the Dow Jones case where there's reporters, that's about the Clinton grand jury investigation, there's reporters camped out [00:32:11] Speaker 05: outside the courthouse, reporters are reporting on who's going into the courthouse, who's not. [00:32:16] Speaker 05: They're kind of trying to put together what's going on in the grand jury investigation. [00:32:21] Speaker 05: And this court says that is not cat out of the bag. [00:32:25] Speaker 05: That's not kind of putting together the pieces like that. [00:32:28] Speaker 05: That's not going to work for a grand jury disclosure. [00:32:30] Speaker 05: And instead, I think Henry Cheney does have a good summary of this, is what you need is the witness to actually say, here's what I testified in the grand jury. [00:32:39] Speaker 05: You need the attorney for the witness to say that, or you need the government to have a public filing that says, here's what was discussed in the grand jury. [00:32:49] Speaker 02: So in other words, from your perspective, from the government's perspective, even if you could look at the context and [00:32:56] Speaker 02: make an educated assessment of what might very likely be an issue, that's still not enough for purposes of a cat out of the bag idea. [00:33:04] Speaker 05: That's correct. [00:33:06] Speaker 05: And I think that's also consistent with what this court says in North, which is that even if you have kind of [00:33:12] Speaker 05: leaks that are happening even if you have reporting on what's likely happening, the government's obligation is nonetheless to stand silent in that instance, is not to to provide confirmation of that and not to use the fact that leaks are out to to say that rule six E has disappeared. [00:33:31] Speaker 05: If there are no further questions, additional questions at this point, we ask this court to approve. [00:33:35] Speaker 02: Thank you, council. [00:33:39] Speaker 02: Mr. Field will give you the two minutes you asked for for [00:33:41] Speaker 04: Thank you, Your Honor. [00:33:41] Speaker 04: Just a few points. [00:33:42] Speaker 04: I would like to note, counsel raised a question about whether or not we have really tied things together from the OIG report and the record here. [00:33:49] Speaker 04: Just at a very high level, we have at page 42 from the OIG report to the date of the subpoena. [00:33:55] Speaker 04: We have the subpoena and the record at appendix pages 45 and 47. [00:33:58] Speaker 04: We have the applications discussed in the OIG report. [00:34:02] Speaker 04: I'm sorry, we have details about the investigation at pages 27 and 28 of the OIG report. [00:34:07] Speaker 04: which line up with the facts we've discussed in the briefing below. [00:34:10] Speaker 04: We have the OIG report at page 42 talking about the last NDO, which lines up precisely with the dates of the NDO application, I'm sorry, the NDO at appendix pages 42 to 43. [00:34:19] Speaker 04: And we also know from the fact that the NDO applications, I'm sorry, the NDOs have been allowed to expire that the underlying grand jury investigation is complete, that Google was allowed to inform Mr. Foster, which [00:34:32] Speaker 04: Douglas' loyal decision of the Supreme Court says that weighs in favor of release even if we're operating under 6E. [00:34:38] Speaker 04: I want to also make sure to emphasize that to my discussion with Judge Rogers. [00:34:43] Speaker 04: If there is identity information, we've said all along, identity information is clearly something that could still be redacted. [00:34:50] Speaker 04: There's discussion of local rule 6.1. [00:34:52] Speaker 04: I think that's a bit of a red herring because this court said in the 2000 in Ray Seale case, that's just another definition of an ancillary grand jury record. [00:35:04] Speaker 04: 6.1 is not a different rule. [00:35:05] Speaker 04: It's just discussing ancillary grand jury records. [00:35:08] Speaker 04: In Ray North is really important because in In Ray North, the court focused on the partial release of information and said the partialness of the release weighs in favor of full release because when you have partial information out there, you have partial conclusions being reached by the public. [00:35:23] Speaker 04: So the partialness of the release of information here with the OIG report actually weighs in favor of full release under In Ray North. [00:35:31] Speaker 04: It sounded to me like DOJ Council agreed that the explanatory language from an NDO application can be released because that is, after all, it's an OAG report. [00:35:40] Speaker 04: I'm sorry, as Council stated, that's not grand jury information, so we would suggest that the same is the case here. [00:35:48] Speaker 04: And the last point I want to make, Your Honor, is you said that it's likely that any NDO application related to a grand jury subpoena is going to address grand jury information. [00:35:57] Speaker 04: I think if you look at the five subparts of 2705B, you'll see that any one of those could be addressed without discussing any aspect of a grand jury investigation. [00:36:05] Speaker 04: You have a flight risk or something like that discussed. [00:36:07] Speaker 04: So it's not necessarily the case that any NDO application tied to a subpoena is going to discuss grand jury investigation. [00:36:13] Speaker 04: And with that, we would request that this court reverse the district court. [00:36:16] Speaker 02: Thank you, counsel. [00:36:17] Speaker 02: Thank you to both counsel. [00:36:18] Speaker 02: We'll take this case under submission.