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EXHIBIT 1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE MATTER OF GRAND JURY INVESTIGATION

UNDER SEAL No. 18-GJ-34

MOTION OF ANDREW MILLER TO VACATE THE CIVIL CONTEMPT ORDER OFAUGUST 10, 2018, TO VACATE THE ORDER OF JULY 31, 2018, COMPELLING HIM

TO TESTIFY BEFORE THE GRAND JURY, TO QUASH THE SPECIAL COUNSEL SUBPOENA TO TESTIFY, AND TO STAY IMPOSITION OF THE JULY 31 ORDER

PENDING DISPOSITION OF THIS MOTION

Introduction

Pursuant to Fed. R. Civ. Proc. 60(b) and Fed. R. Crim. Proc. 17(c)(2), Andrew Miller

hereby moves to (1) vacate the civil contempt order of August 10, 2018, for failing to comply

with this order of July 31, 2018, compelling him to testify before the grand jury; (2)

vacate the July 31 order; and (3) to quash the Special Counsel subpoena to testify before the

grand jury.

As will be demonstrated, events that have transpired since the Special Counsel subpoena

was first issued last May 2018, particularly the indictment of Roger Stone on January 24, 2019,

and the

government intends to use the grand jury for an improper purpose to conduct discovery in a

pending criminal case and its use is otherwise unreasonable and inequitable.

At a minimum, this Court should ensure that the grand jury is not being abused by

requiring

Case 1:18-gj-00034-BAH Document 57 Filed 05/30/19 Page 1 of 23

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the Court by affidavit or in a hearing on this motion, as has been done in other cases, that the

proposed use of the grand jury in this matter is legitimate. If the Court is satisfied that the grand

jury is not being used for an improper purpose, Andrew Miller requests that a new subpoena be

issued in the name of the United States Attorney instead of the Special Counsel who has

completed his investigation.

A short stay of the July 31, 2018, O

is briefed and adjudicated will not cause undue prejudice to the government inasmuch as it did

not request the court of appeals to expedite the appeal in this case nor did it seek to expedite the

issuance of the mandate during the 45 days after the decision was rendered on February 26,

2019.

Chronology of Events

1. On or about May 9, 2018, Andrew Miller, a former part-time aide to Roger Stone

during the 2016 Republican National Committee convention in July 2016, who handled Mr.

media schedule appearances, voluntarily agreed to be interviewed without counsel by

two FBI agents who appeared issouri.

2. For approximately two hours, Mr. Miller answered all their questions, including

questions about his work for Mr. Stone, his knowledge about individuals who had worked with

Mr. Stone, and his knowledge of to WikiLeaks, Julian Assange,

and Guccifer 2.0, which was limited to published press accounts. At the end of the interview, the

FBI gave Mr. Miller a subpoena from the Special Counsel for any documents related to Mr.

Stone and to testify before the Special Counsel grand jury.

3. On June 18, 2018, this Court held a hearing on motion to quash the

subpoena for overbreadth. ECF No. 16. That hearing was originally sealed but was later


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unsealed by the Court. At the hearing, the parties agreed, with court approval, to limit the

document search to any documents from June 2015 related to Mr. Stone and WikiLeaks, Julian

Assange, and Guccifer 2.0. The parties agreed that those documents would be produced on June

25, 2018. By Minute Order, dated June 18, the Court further ordered Mr. Miller to testify before

the Grand Jury on June 29, 2018.

4. All such documents were turned over to prosecutors on June 25, 2018. The subject of

Mr. Miller s grand jury testimony would presumably cover the same subject matter as the FBI

interview and the documents requested, even though, as noted,

, Julian Assange, and Guccifer 2.0, was limited to published

press accounts.

5. On June 28, 2018, Mr. Miller filed a motion to quash the grand jury subpoena, ECF

No. 10, on grounds that it was invalid because it was issued by Special Counsel Robert S.

Mueller, III, who, Mr. Miller argued, was not constitutionally appointed under the Appointments

Clause and that his appointment was not statutorily authorized.

6. On July 18, 2018, this Court held a hearing on the motion to quash.

7. On July 31, 2018, this Court denied the motion and ordered Mr. Miller to appear

before the grand jury at the earliest date, which was August 10, 2018.

8. On August 9, 2018, Mr. Miller filed a motion to be held in contempt for not appearing

before the grand jury the next day

his motion to quash the subpoena.

9. On August 10, 2018, the Court granted the motion and found him in civil contempt of


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14 unless a Notice of Appeal was filed or the witness and the government agreed to an

alternative arrangement. The order was originally sealed but later unsealed.

10. On August 13, Mr. Miller filed the notice of appeal of the contempt order to the U.S.

Court of Appeals for the District of Columbia Circuit.

11. After briefing by the parties, the Court of Appeals held oral argument on November

8, 2018, and requested post-hearing supplemental briefing by the parties.

12. While the appeal was pending, Roger Stone was indicted on January 24, 2019.

United States v. Roger Stone, 19-cr-18 (ABJ) (D.D.C.). He was charged with providing false

testimony to Congress regarding his contacts with WikiLeaks, Julian Assange, and other

witnesses, but there were no charges for colluding or coordinating with Russia regarding that

the 2016 campaign or the hacking of Hillary Clinton and DNC

emails.

13. Later that same day, undersigned counsel for Mr. Miller inquired of the Special

Counsel whether, in light of the indictment, the grand jury still needed his testimony regarding

the subject matter (if it ever did) and whether the court of appeals should be so advised with a

FRAP Rule 28(j) letter. In particular, counsel pointed out t 1 and

relevant case law regarding the proper use of the grand jury post-indictment:

U.S. Attorney Manual 9-11.120 - Power of a Grand Jury Limited by Its Function The grand jury's power, although expansive, is limited by its function toward possible return of an indictment. Costello v. United States, 350 U.S. 359, 362 (1956). Accordingly, the grand jury cannot be used solely to obtain additional evidence against a defendant who has already been indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can

1 The Special Counsel is required to comply with all Department of Justice policies and directives. 28 C.F.R. 600.7(a).


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the grand jury be used solely for pre-trial discovery or trial preparation. United States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be used if its investigation is related to a superseding indictment of additional defendants or additional crimes by an indicted defendant. In re Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir. 1978).

14. Since the subpoena issued to Mr. Miller was for the purpose of obtaining evidence

related to Mr. Leaks, Julian Assange, and Guccifer 2.0, it would

appear that the Special Counsel would no longer need testimony regarding that

subject matter and that the use of the grand jury at this point would be improper. Nevertheless,

advised that it believed the case to be a live

controversy since the grand jury was still active, though it was not apparent whether the grand

jury or its foreperson was consulted as to any continued interest in hearing

testimony.

15. On February 26, 2019, the court of appeals issued its judgment and opinion affirming

subpoena. In re: Grand Jury

Investigation, 916 F.3d 1047 (D.C. Cir. 2019).

16. T order stayed the issuance of the mandate, as is the usual

practice under Fed. R. App. P. 41(b) and D.C. Cir. Rule 41, until seven days after the time for the

filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days

from the February 26 decision, or April 12). The order further specified that any party had the

Exhibit 1.

Notably, for the next 45 days, the Special Counsel declined to exercise that right, presumably

because it did not have the requisite or a need grand jury

testimony.


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17. On March 22, 2019, Special Counsel submitted his final report to Attorney General

Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c), concluding his

investigation, explaining his prosecutions and declinations, and finding that no conspiracy or

coordination took place between the Trump campaign or any aides associated with the campaign

and Russia regarding interference with the 2016 campaign or hacking the emails of Hillary

Clinton or the DNC.2 Report On The Investigation Into Russian Interference In The 2016

Presidential Election (March 2019) (Mueller Report). No further indictments are expected.

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18. On April 12, 2019, Miller filed a timely petition for rehearing and rehearing en banc

with a suggestion of mootness.

19. On April 29, 2019, the court of appeals denied the petition without opinion and

without requesting the government to file a response.

20. On May 6, 2019, Miller filed a timely motion to stay the mandate for 30 days in

order to seek Supreme Court review.

21. On May 16, 2019, the government filed an opposition to the motion to stay the

mandate, asserting that it has a ch concerns an

2 See Attorney General William P. Barr Letter to Congress, March 24, 2019. https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html?module=inline#g-page-1. 3 Devlin Barrett and Matt Zapotosky, rney general, signaling his

Washington Post (Mar. 22, 2019). https://www.washingtonpost.com/world/national-security/mueller-report-sent-to-attorney-general-signaling-his-russia-investigation-has-ended/2019/03/22/b061d8fa-323e-11e9-813a-0ab2f17e305b_story.html?utm_term=.6d83a9475bca


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22. On May 21, 2019, the court of appeals denied the motion to stay the mandate and

ordered the Clerk to issue it today, May 28, 2019, which it did. Accordingly, this motion is

timely.

A. THE SUBPOENA SHOULD BE QUASHED SINCE IT APPEARS THAT THE GRAND JURY WILL BE IMPROPERLY USED TO GATHER EVIDENCE FOR A PENDING CRIMINAL PROCEEDING

It is universally recognized that it is improper to use the grand jury for the

investigate possible criminal conduct in order to determine whether to return an indictment; it is not part of that role for the grand jury to conduct discovery in a pending

investigative role is ended, and the rules of pretrial discovery take effect to govern the extent to which the parties may use the legal process to obtain information about the case. Grand Jury Law & Practice, 2d, Chapter 9: Prosecutorial Misconduct, Abuse of the

Grand Jury, and Judicial Review, section 9:16 Gathering evidence for pending criminal proceeding, at 9-95 (hereinafter Grand Jury Law) (footnotes citing cases omitted).

This general rule is also reflected in the U.S. Attorney Manual regarding the proper use

of the grand jury:

U.S. Attorney Manual 9-11.120 - Power of a Grand Jury Limited by Its Function The grand jury's power, although expansive, is limited by its function toward possible return of an indictment. Costello v. United States, 350 U.S. 359, 362 (1956). Accordingly, the grand jury cannot be used solely to obtain additional evidence against a defendant who has already been indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can the grand jury be used solely for pre-trial discovery or trial preparation. United States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be used if its investigation is related to a superseding indictment of additional defendants or additional crimes by an indicted defendant. In re Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir. 1978).


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[T]he question of whether the prosecutor is employing the grand jury to gather evidence for a

pending prosecution is not a factual determination of intent subject to the clearly erroneous

standard, but rather the application of the legal standard intended to ensure the independence of

Grand Jury Law, 9:16 at 9-102 (cases cited omitted). As the First Circuit

described the standard of review:

Claims of grand jury abuse raise a unique set of concerns. The relevant inquiry, strictly speaking, is neither a pure question of fact nor a pure question of law. In re Grand Jury Proceedings (Fernandez Diamante),814 F.2d 61, 71 (1st Cir.1987). To the contrary, the inquiry most often comprises a hybrid in that it typically involves an application of a legal standard designed to ensure that the grand jury, a body operating peculiarly under court supervision, is not misused by the prosecutor.... Id. (quoting In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985)).

Given this reality, appellate tribunals have crafted an intermediate standard of review for evaluating district court orders accepting or rejecting claims of grand jury abuse. Under that standard, we accord respect to the lower court's findings, but scrutinize them somewhat less deferentially than we would if either the traditional abuse of discretion or clearly erroneous rubric applied. See United States v.Leung, 40 F.3d 577, 581 (2d Cir.1994); Fernandez Diamante, 814 F.2d at 71. This intermediate level of appellate scrutiny is akin to what we have in other contexts termed independent review. E.g., United States v. Tortora, 922 F.2d 880, 882 83 (1st Cir.1990) (describing independent review as an intermediate level of scrutiny, more rigorous than the abuse-of-discretion or clear-error standards, but stopping short of plenary or de novo review, and deeming such review appropriate for appellate oversight of pretrial detention orders).

United States v. Flemmi, 245 F.3d 24, 27-28 (1st Cir. 2001).

the District of Columbia is questionable for several reasons.

First, it was clear from the outset, that the Special Counsel wanted Mr. Miller to testify

last year


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emails and any collusion with Russia. But Mr. Stone was indicted on January 24, 2019, by the

Special Counsel, in regard to that matter and that case is in pre-trial discovery.

Second, as of March 22, 2019, and he has

submitted his final report. See Mueller Report. In his report, the Special Counsel noted there

, Appx D-1

(Exhibit 2). One such transferred case (listed in alphabetical order) is Case No. 10, United States

v. Roger Stone. Id. (Awaiting trial)

designation is in sharp contrast to Case Nos. 9 and 11, whose case names are redacted but whose

parenthetical (Investigation ongoing) Id.

n alleged

i is questionable since that transferred case is

is not ither the prosecutor (1) no longer needs Mr.

(2) is improperly seeking evidence in the pending Stone

indictment, or (3) is investigating other possible crimes committed by Mr. Stone. But if there is

Case No. 9 in the

Mueller Report makes clear in the unredacted section that deals with

matters arising from the investigation of Paul Manafort and Richard Gates connection with

Ukrainian officials, an investigation

Appx D-2 (Exhibit 2). Case No. 11, which case name is also redacted, has no description of the

case. Appx D-3 (Exhibit 2). But based on the size of the redaction, it appears that it has been

at the


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name is likely not Roger Stone based on the size of the redaction, although it is someone whose

So while the prosecutor may use the grand jury to obtain evidence about other possible

defendants, that scenario is implausible here since Special Assistant U.S. Attorney Aaron

Zelinsky (formerly requested in an email on May 6, 2019, to

counsel for Miller to schedule a proffer interview with Mr. Miller

to first determine whether he needs to go before the grand jury

so as not to needlessly expend Grand Jury resources or inconvenience the witness . See May

6, 2019 email from Mr. Zelinsky to Mr. Kamenar (Exhibit 3). This suggests that the prosecutor is

seeking evidence related .

Mr. Miller s counsel suggested to Mr. Zelinsky that because of the burden on him to

travel to Washington, D.C. from St. Louis, missing up to two days from his job (he has no paid

leave days) to attend a proffer interview with the prosecutor, and possibly be required to return

again for another two days for the grand jury, a telephonic interview might be appropriate

inasmuch on information and belief, such telephonic interviews were conducted with other

witnesses, even with those who live in the local area. Mr. Zelinsky rejected this reasonable

suggestion and insisted on an in-person proffer interview. See May 6, 2019 email from Zelinsky

to Kamenar (Exhibit 3). In reply, counsel for Mr. Miller advised Mr. Zelinsky on Friday, May

24, 2019, that it continued to believe the use of the grand jury was improper as was argued in the

petition for rehearing, and that it may be appropriate for this Court to revisit this matter. Exhibit

3.

Also troubling

the mandate in the court of appeals wo-hour, unsworn interview with FBI agents in May


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2018 is not an appropriate substitute Govt. Opp. at 18. Notably, the

government did not claim that the information gleaned from that interview was insufficient in

order to determine whether Mr. Miller will be needed to appear before the grand jury. Moreover,

a proffer meeting, which Mr. Zelinsky proposed, is also an

true that the interview with the FBI or a prosecutor in a proffer meeting a witness

in either case is subject to criminal prosecution for false statements under 18 U.S.C. 1001.

Indeed, such false statements have been prosecuted by the Special Counsel. Thus, the insistence

to have the witness provide sworn testimony before the grand jury instead of relying on Miller

unsworn statements to the FBI, raises the specter that the government does not believe Mr.

Miller was telling the truth to the FBI. Accordingly, since there does not appear to be an

ongoing investigation of Roger Stone who has been indicted, an unlawful perjury trap may be

in store. See generally Grand Jury Law, section 9:17 Inducing witness to commit perjury.

While it is true that courts have held that grand jury proceedings are entitled to a

y has the initial task

of demonstrating to the Court that he has some valid objection to compliance. * * * The trial

court need inquire into the relevance of the subpoenaed materials only after the moving party has

United States v. R. Enterprises, Inc., 498 U.S. 292, 305 (1991)

(Stevens, J., concurring in part and concurring in the judgment). Miller submits that he has made

government should be required to show by

affidavit or otherwise, that the grand jury is not being misused to gather pre-trial discovery in the

pending Stone case.

The question of a grand jury's dominant purpose is not the typical question of historical

fact nor even the typical inquiry as to the state of mind of a witness or a party. It is the


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application of a legal standard designed to ensure that the grand jury, a body operating peculiarly

under court supervision, see In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 31

(2d Cir.1981), cert. denied, 460 U.S. 1068 (1983), is not misused by the prosecutor for trial

preparation. In applying that standard, we therefore must give more scrutiny than would be

In re: Grand Jury Subpoena Duces Tecum

Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 30 (2d Cir. 1985); United States v. Flemmi, 245

F.3d 24, 27-28 (1st Cir. 2001).

Accordingly, Andrew Miller requests that the grand jury subpoena issued by the

Special Counsel last year be quashed: Where a violation is found before the grand jury

has heard the evidence in question, the remedy is simple: the subpoena for the improperly

sought evidence is quashed. Grand Jury Law, section 9:16 at 9-102.

B. THE CIVIL CONTEMPT ORDER OF AUGUST 10, 2018, SHOULD BE VACATED UNDER FED. R. CIV. PROC. 60(b) Rule 60(b) of the Federal Rules of Civil Procedure provides in pertinent part: (b) Grounds for Relief form a Final Judgment, Order, or Proceeding. On Motion and just terms, the court may relieve a party from a final judgment, order, or proceeding for the following reasons: ****

(5) *** applying [the Order] prospectively is no longer equitable; or (6) any other reason that justifies relief.

Several factors shape the framework of the court s consideration of a 60(b) motion,

including (1) whether there are intervening equities that would make it inequitable to grant relief,

and (2) any other factors relevant to the justice of the judgment under attack. Edward H. Bohlin

Co., Inc. v. Banning Co., Inc., 6 F.3d 350. 355-56 (5th Cir. 1993). Miller asserts that for all the

reasons, both legal and equitable, presented in this motion, supra, for quashing the subpoena, the

civil contempt order should be vacated.


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CONCLUSION

For the foregoing reasons, Andrew Miller requests that this Court (1) vacate the

civil contempt order of August 10, 2018, imposed on him for failing to comply with this

order of July 31, 2018, compelling him to testify before the grand jury; (2) vacate the July 31

order; and (3) quash the Special Counsel subpoena to testify before the grand jury.

Date: May 28, 2019 Respectfully submitted,

/s/ Paul D. Kamenar PAUL D. KAMENAR 1629 K STREET, N.W. SUITE 300 WASHINGTON, DC 20006 (301) 257-9435 [email protected] Counsel for Andrew Miller

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of May, 2019, the foregoing MOTION OF ANDREW MILLER TO VACATE THE CIVIL CONTEMPT ORDER OF AUGUST 10, 2018, TO VACATE THE ORDER OF JULY 31, 2018, COMPELLING HIM TO TESTIFY BEFORE THE GRAND JURY, TO QUASH THE SPECIAL COUNSEL SUBPOENA TO TESTIFY, EXHIBITS THERETO, AND PROPOSED ORDER were served Case Filing System upon all parties of record.

/s/Paul D. Kamenar


EXHIBIT 2

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

* * * * * * * * * * * * * * * * IN RE: )Grand Jury Investigation. ) Case No. 18-34 United States of America, ) Interested Party. ) 11:00 a.m. ) May 29, 2019 Andrew Miller, Material Witness. ) Washington, D.C. * * * * * * * * * * * * * * * *

TRANSCRIPT OF PROCEEDINGSWITH REDACTIONS

BEFORE THE HONORABLE BERYL A. HOWELL,UNITED STATES DISTRICT COURT CHIEF JUDGE

APPEARANCES:

FOR THE GOVERNMENT: AARON J. ZELINSKIJONATHAN I. KRAVIS U.S. DEPARTMENT OF JUSTICE 555 Fourth Street, NW Washington, DC 20530 (410) 209-4928 Email: [email protected]

FOR THE WITNESS: PAUL D. KAMENAR1629 K Street, N.W., Suite 300Washington, D.C. 20006(202) 603-5397 Email: [email protected]

ALSO PRESENT: ANDREW MILLER (Via Telephonically)

Court Reporter: Elizabeth Saint-Loth, RPR, FCRROfficial Court ReporterU.S. CourthouseWashington, D.C. 20001

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.


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P R O C E E D I N G S

THE DEPUTY: Matter before the Court, grand jury

matter 18-34, in regards to a grand jury investigation.

United States of America, interested party; Andrew Miller,

material witness.

Counsel, please come forward and identify

yourselves for the record.

MR. ZELINSKY: Good morning, Your Honor.

Aaron Zelinsky on behalf of the United States. With me at

counsel's table is United States Attorney Jonathan Kravis.

THE COURT: Good morning.

MR. KAMENAR: Good morning, Your Honor.

Paul Kamenar, counsel for Andrew Miller, who is going to be

available by telephone as was agreed.

THE COURT: Is he on the telephone now?

MR. MILLER: Good morning, Your Honor.

Andrew Miller here on the phone.

THE COURT: My order said specifically that he was

supposed to be here, and you were supposed to make all

efforts to get him here. Why isn't he present?

MR. KAMENAR: Your Honor, when we got that order,

it was in the afternoon. I was talking to --

THE COURT: We've known for a week that the

mandate was coming down yesterday. The parties didn't tell

me anything about what they had planned to do when the


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mandate came down. Even though I see from the submission

you made last night, Mr. Kamenar, you have all been talking

about trying to get ahead of this and have some kind of

agreement as to what was supposed to happen when the mandate

came down. You knew that for over a week; the parties were

silent.

As soon as the mandate comes down, I have an order

holding Mr. Miller in contempt -- to put him in jail --

unless he has agreed to testify. He is not here.

Why isn't he here?

MR. KAMENAR: Your Honor --

THE COURT: Getting an agreement from Mr. Zelinsky

is not the same and does not excuse you from not complying

with the Court's order.

MR. KAMENAR: Your Honor, the Court's order

required him to appear before the grand jury at the next

available date.

THE COURT: No. My order -- my minute order

setting up this status conference was for him to be present

here today.

MR. KAMENAR: Your Honor, I apologize in terms of

the timing.

THE COURT: He is not in Japan, is he?

MR. KAMENAR: No. He is in St. Louis.

THE COURT: That's not that far away.


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MR. KAMENAR: Right. But he was at work and

ordered to get on a plane in the morning. It was just --

usually, when there is an arrangement, we work out with

Mr. Zelinsky's travel office. I wasn't sure whether that --

when I talked to the deputy clerk and said could that be

arranged? And they called me back and said, well, did

Mr. Zelinsky agree? And I presume that that was conveyed to

Your Honor, and that that was acceptable because Mr. Miller

had appeared before telephonically at a hearing; and I

thought that was one way we could accommodate the schedule.

I apologize that he is not physically here, Your

Honor. But the -- under the circumstances, I think we can

proceed with the status hearing --

THE COURT: Okay. Right now this hearing is

sealed. Is there any reason for this hearing to continue to

be sealed?

MR. KAMENAR: I don't see -- if it's a status

hearing just to say what is the next -- what are we going to

do in terms of -- with Mr. Zelinsky in terms of what -- the

next time the grand jury is meeting, when can we maybe have

an accommodation -- you will see in my pleadings that we

tried to see whether or not --

THE COURT: Mr. Kamenar, is there any reason for

this hearing to be sealed; yes or no?

MR. KAMENAR: Not that I know of, unless there is


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some grand jury material --

THE COURT: All right. Let me hear from

Mr. Zelinsky.

MR. KAMENAR: By the way, Your Honor, neither is

the pleading that we filed I don't think needs to be sealed.

Mr. Zelinsky would like to review it to see if there is any

grand jury -- he may concur with my position on that.

THE COURT: Is there any reason for this hearing

to be sealed since so much of these proceedings including --

I think the docket is unsealed. Is there any reason for

this hearing to be sealed?

MR. KAMENAR: Your Honor, there is no reason for

this hearing to be sealed. Should there be a need to

address matters related to ongoing investigations, we can

address it at the bench with the husher on.

THE COURT: All right. So I will unseal this

hearing.

So let's -- let me just say, Mr. Kamenar, the next

time you get a court order directing that Mr. Miller is

supposed to appear in court I expect to see Mr. Miller in

court.

MR. KAMENAR: Yes, Your Honor.

THE COURT: The contempt order of August 10, 2018

issued by this Court was stayed if this witness filed a

notice of appeal, which he did. And I do plan to lift that


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stay now that the Circuit's mandate is issued.

I appreciate that the witness filed a motion last

night seeking an extension of the stay as opposed to the

lifting of the stay. As of right now, the stay is lifted

until I am persuaded that this motion has merit. I do plan

to address that motion today if the Government is prepared.

Is the Government prepared to address that motion

today, Mr. Zelinsky?

MR. ZELINSKY: We are, Your Honor.

THE COURT: All right. So let me start with what

I read are two parts of this motion or two requests combined

in this motion that was filed almost at 9:00 p.m. last

night.

One part requests that a new subpoena be issued in

the name of the United States Attorney for the District of

Columbia instead of the Special Counsel since the Special

Counsel has -- and I quote from the motion papers at

page 2 -- completed his investigation.

The second part of the motion, as I mentioned,

seeks a continuing stay of the civil contempt order of

August 10 and vacatur of the July 31, 2018 order compelling

Mr. Miller to testify before the grand jury and, in fact, to

quash the subpoena to testify for reasons that are spelled

out in the motion papers and, essentially, boils down to the

fact that the special counsel's investigation is over; Roger


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Stone has been indicted; and so having Mr. Miller testify

before the grand jury now would be an abuse of the grand

jury process because it would be to obtain evidence --

discovery in connection with the pending Indictment.

Is that essentially it, Mr. Kamenar?


Yes, Your Honor. That summarizes it.

THE COURT: All right. So let me start with the

request for a new subpoena, before I turn to the more

substantive issue raised in the motion for -- which is to --

essentially, a new reason to quash the subpoena after almost

ten months of litigation over the grand jury subpoena.

Mr. Kamenar, as to this request to get a new

subpoena, does it really make any difference which arm of

the Department of Justice has issued the grand jury subpoena

to Mr. Miller?

MR. KAMENAR: Your Honor, we just thought that, in

terms of the fact that the Mueller investigation is over,

his process is not continuing here after his investigation

was over. And we'd just simply request, in terms of -- it's

been a year since the other subpoena was issued; that a new

subpoena from the U.S. Attorney's Office -- we'd just think

that would be preferable in terms of what this has been --

Your Honor has the discretion, of course, not to grant that.

That was just a --


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THE COURT: But why would it be better?

Is there any legal reason that it would be better?

Is there any practical reason for that to be better?

How would it make it better?

MR. KAMENAR: Well, there may be, in that

particular subpoena -- since it seems that Mr. Zelinsky's

request for whatever information he needs has -- seems to me

has shifted over time. And it may be that a fresh subpoena

would narrow the scope of what he needs now that Mr. Stone

has been indicted, and so forth.

I was just suggesting that it's more of a

housekeeping-type thing to see whether or not the subpoena

is -- can limit what he needs, whether it's going to be the

same as the other one; that's fine, too. I was just giving

the Government the opportunity to do that.

THE COURT: All right. Mr. Zelinsky.

Perhaps the Government has no objection to issuing

another subpoena. Is there any practical, legal, or any

other reason why you think a new subpoena must be issued?

What's the Government's position with respect to

this request?

MR. ZELINSKY: Your Honor, the Government's

position is that the old subpoena continues to be valid.

There continues to be testimony that is sought by the

Government in this case.


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I want to respond very briefly to the assertion

that counsel just made now that what the Government is

seeking has shifted over time; it's very much to the

contrary. The Government has been consistent in its -- what

it is seeking.

THE COURT: I will interrupt you for just one

second.

Mr. Kamenar, you may be seated. One person at the

podium, please.

MR. ZELINSKY: Thank you, Your Honor.

The Government has been consistent, for the past

year that we have been involved in this litigation, what the

Government is seeking. It is seeking testimony from

Mr. Miller; that has not changed. It was true the first day

we came in here; it is true now.

As to Mr. Kamenar's assertion just now, that a new

subpoena may result in a narrowing in some way of what is

being sought from Mr. Miller, that of course is belied by

the subpoena itself. This is a testimonial subpoena; it is

not a documentary subpoena. So any new subpoena would not

in any way narrow what is being sought.

THE COURT: Remind me, Mr. Zelinsky.

Were there -- attached to the testimonial

subpoena, was there also a request for documentation that

outlined areas both of the document requests as well as --


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that might define the areas of inquiry?

MR. ZELINSKY: To the extent that any documents

were requested in that subpoena, we were before the Court,

as I am sure the Court remembers, on that matter. And there

was some assertion from Mr. Miller from his previous

counsel, I believe, that the extent of what was sought was

onerous and too large to produce.

The Government, in an attempt, frankly, to hasten

his testimony, as we noted at the time, agreed to limit the

scope of the documentary subpoena to a narrower object of

materials in order to make sure that Mr. Miller could

produce those and then come to testify. And, of course,

that's just the opposite impact it's had.

We have counsel making just the opposite argument;

that is, the Government's good faith effort to attempt to

work with Mr. Miller to limit the scope of what he had to

produce in order to actually get him to physically appear

resulted in now an argument by counsel that somehow we are

outside the scope of what we're seeking or it is no longer

relevant.

The Government's position always has been and

continues to be that Mr. Miller's testimony is sought in an

ongoing investigation. His testimony is sought before the

grand jury.

As the Court indicated, we have attempted many


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times to work with counsel to try to arrange a situation

whereby Mr. Miller can come and a proffer can take place.

We can determine if, in fact, his testimony is necessary

before the grand jury.

We reached out, as counsel notes in his exhibits,

on multiple occasions. On May 6 we attempted to do that so

that we could get in touch with the Court in advance of this

so we did not end up in this sort of situation. As

indicated --

THE COURT: It's usually the best practice to stay

ahead of the judge if you want to control your fate.

MR. ZELINSKY: We tried, Your Honor. But as my

grandmother would say: It takes two to tango.

As you will see in the exhibits, Mr. Kamenar did

not respond to that May 6 email.

THE COURT: I wasn't clear from the submission he

made. I did see the May 6th email, but it wasn't clear to

me whether it had been responded to or not because it was

clearly dependent on whatever Mr. Kamenar decided to provide

to the Court.

MR. ZELINSKY: Well, the simple answer is -- as

you will see from my follow-up, we then attempted again to

try to get ahead of this matter, to come to the Court with

what, in the Government's position, was the standard

attempted solution in these circumstances in order to


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minimize judicial resources, the resources of the grand

jury, resources of the Government, and the imposition on the

witness. The witness could make a proffer --

THE COURT: Such as, I wanted the witness here.

If the witness was going to continue to decline to

testify, he could have been immediately locked up, and

stepped back, until he could decide whether he was going to

or not, but he is not here. So at the conclusion of this

hearing we will address where we're going to go next.

MR. ZELINSKY: And to be clear, Your Honor, the

assertion by Mr. Kamenar that the witness's lack of presence

is somehow contingent upon either the travel office of the

Government or counsel's representation that they did not

oppose his request to the Court, we were very clear about.

The United States did not oppose his request to

the Court; that is in no way an indication -- I want to be

clear -- the Government was in no way intending to usurp the

Court's authority; never indicating that we were in any way

seeking to modify or change anything about what the Court

said. We just said we would not oppose his request. Of

course, as in any of those circumstances, the Court is the

one who makes the decisions.

As it pertains to the need for Mr. Miller to

travel, in this circumstance I do not believe that the

Government actually can pay for Mr. Miller's travel. We pay


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to bring witnesses out to speak to the grand jury. We do

not pay to bring private litigants out to appear before the

Court when they wish to challenge the contempt proceedings,

so that is not a relevant consideration.

To answer the question the Court did begin with

here, which is the subpoena, the Government's position is

the subpoena has been validly issued. It has been issued by

a valid grand jury. It is no different than when, for

example, a United States attorney would resign and a new

United States Attorney would come into place. We do not

issue a whole new raft of subpoenas for everyone there.

There is a valid subpoena that is here.

Mr. Kamenar, it seems, has conceded that the subpoena is

valid. So, in the Government's opinion, the subpoena

continues to remain in force. The case, as Mr. Kamenar

notes in this file, has been referred to the D.C. U.S.

Attorney's Office. I am currently a Special Assistant U.S.

Attorney representing that office. Mr. Kravis is an

Assistant U.S. Attorney in that office. The position of our

office, the United States Attorney's Office for the District

of Columbia -- there is an ongoing subpoena for -- there is

an ongoing need for testimony for a subpoena that has been

validly issued, and the Government stands behind that

subpoena.

THE COURT: All right. Thank you.


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I am going to deny -- yes?

Do you want to have another opportunity,

Mr. Kamenar, to clarify your request for why a new grand

jury subpoena has to be issued?

MR. KAMENAR: No, Your Honor. I will concede that

point.

What I would like to make clear for the record --

THE COURT: You are withdrawing your request for a

new grand jury subpoena to be issued?

MR. KAMENAR: Yes. I withdraw the request.

THE COURT: Thank you.

MR. KAMENAR: If I may, my motion which is

involving the abuse of the grand jury of course still

stands, and I would like to be heard on that. I want to

clarify the record here.

Mr. Zelinsky and, I think, Your Honor make

reference to the fact that we did not respond to the May 6th

email from Mr. Zelinsky, in terms of getting together for a

proffer meeting. Well, that was obviously clear; that the

response was given on May 6 when we filed our timely motion

to stay the mandate for 30 days. Therefore, there made no

sense for -- to agree to have my client testify if we can

have the mandate stay and seek Supreme Court review because,

if we did, that would essentially moot the case.

So we did respond. And then, when the mandate was


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denied, again, as in the exhibits, it's very clear -- that's

when Mr. Zelinsky came back and says we still continue to

seek -- this is May 22nd, an email:

Dear Paul, we continue to seek Mr. Miller's

testimony for an ongoing investigation. Please let me know

your response to the proposal below -- which was: Let's

have a proffer meeting, et cetera.

I responded that I need to discuss these with

Mr. Miller. Two hours later, Mr. Aaron said: Paul, thank

you for the quick response. So we were not being --

accommodating to Mr. Zelinsky; I was looking out for the

interest of my client.

We were -- and then I said that the Court may want

to revisit this in light of the developments that have taken

place; one, the Indictment of Roger Stone which, as Your

Honor knows, it's improper to use a grand jury to get

evidence, as a general rule, on somebody who has been

indicted; plus, the investigation has been completed.

So we felt it was proper to file this motion which

we think has merit in terms of that -- we believe this is an

improper use of the grand jury. We also offered a middle

ground that maybe -- if he's just looking for, as he said in

his email, what work did my client have with Roger Stone

from 2016 on? Whatever information that's not in the FBI

report, the 302, we would be glad to have a telephone


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conversation that could have an attorney proffer on that --

MR. ZELINSKY: Your Honor, I'm sorry to interrupt.

The matter that we had discussed earlier, that is,

if we are discussing things relevant to an ongoing

investigation -- as I indicated, we should do so with a

husher, under seal at the bench. I just want to reiterate

that for the record here today, and I object to any further

discussion regarding ongoing investigations by Mr. Kamenar

in a public setting.

THE COURT: Or, Mr. Kamenar, the subject matter --

you will have an opportunity at the bench, both

Mr. Zelinsky, on behalf of the Government, with you at the

bench to explain in detail what you understand to be the

nature of the ongoing investigation for which the witness's

testimony may be pertinent; and Mr. Zelinsky will be able to

amplify that ex parte as well.

MR. KAMENAR: Right. If I could add one more

point. Once the decision of the Court of Appeals came down

on February 26, the Government had a right to ask to mandate

the issue for good cause. They didn't do anything for 45

days. They could have done that if they had good cause to

seek the mandate to be issued; they did not. That leads

anybody reasonably to conclude that it wasn't that pressing

to have Mr. Miller's testimony. And, therefore, in light of

the things that have transpired since then, it appeared that


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it was no longer needed; that was a logical assumption.

THE COURT: You know, Mr. Kamenar, you have raised

a very interesting point in your papers that I plan to ask

Mr. Zelinsky about.

MR. KAMENAR: Thank you.

THE COURT: And I think you raise a question in

your papers about whether there is that much of a need for

Mr. Miller's testimony when the Government didn't seek

expedited consideration of your appeal or expedited issuance

of the mandate, so how pressing could it be?

MR. KAMENAR: Exactly.

THE COURT: I appreciate that point. I plan to

get an answer to that point before you leave, now that you

have turned to the second part of your motion that was filed

late yesterday evening seeking to quash the subpoena and

vacate the civil contempt order.

Let me just get a couple of things clear. You

plainly concede the law is very well settled that grand jury

proceedings are entitled to a presumption of regularity.

And is it -- is my understanding correct that the only

reasons that you think that enforcing the subpoena would be

irregular and an abuse of the grand jury proceedings is

because, one, there is no -- the special counsel is no

longer conducting this investigation and has, basically,

closed -- issued his report, he is done; and that Roger


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Stone is indicted -- those are really your two reasons for

why it would be an abuse of the grand jury process to

enforce the subpoena? Do I have that right?

MR. KAMENAR: That's basically correct, Your

Honor.

THE COURT: Okay.

MR. KAMENAR: And if I can just add, with respect

to the Mueller report being done, he did transfer 11 cases

from his docket, so to speak, and the one for Roger Stone

notes that it's awaiting trial; whereas, the one that's

redacted said there is an ongoing investigation. So if in

terms of -- if they're trying to get information, as they

say in their email, what did Mr. Miller --

(Whereupon, Mr. Zelinsky stands.)

THE COURT: Okay. This is where you have to --

MR. KAMENAR: Yes. I understand, Your Honor.

THE COURT: -- maintain some confidentiality,

Mr. Kamenar.

MR. KAMENAR: All right.

THE COURT: All right. So those are the two

reasons that you think are to be an abuse of the grand jury

process to not quash the subpoena.

And I also take it that you would concede that if

the Government provided legitimate reasons for its

continuing need to hear from Mr. Miller related to other


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charges, for example, against -- that have not appeared in

any Indictment against persons or criminal offenses, that

the Government would have a legitimate reason to pursue this

grand jury subpoena.

MR. KAMENAR: Yes. The exception is that if there

are superseding charges against Roger Stone being

involved -- that that would be legitimate, or if there are

other defendants that the Government is seeking my client's

testimony on, that, too, would be.

But, basically, from the papers and the

communications, in terms of what they want from my client,

it seems to me that they're trying to just use this to get

evidence on an ongoing case with Mr. Stone and, therefore,

that would be improper. They're free, of course, to call my

client as a prosecution witness at the trial of Mr. Stone

and, then, vice versa, if he's called by Mr. Stone's

attorneys he can be cross-examined. But it seems to us at

this point we made a prima facie showing, so to speak. And

I think it's incumbent -- the burden shifts, so to speak,

for the Government to explain why they still need

Mr. Miller's testimony.

THE COURT: All right. Mr. Zelinsky, let's start

with a point that Mr. Kamenar raised in his papers and

actually was a puzzle to me.

Why is it that Special Counsel didn't seek


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expedited consideration of review of the appeal or for

expedited issuance of the mandate so, as a consequence, it

took ten months?

MR. ZELINSKY: In retrospect -- to start with the

first issue, that is, expedited appeal, my understanding is

that the local rules for grand jury matters do have a bias

in favor of expedition at the Court of Appeals, regardless

of whether or not such expedition is explicitly requested,

as was the case in another grand jury matter; that matter

was dealt with very rapidly by the Court of Appeals.

It was perhaps an error that the special counsel's

office anticipated that another grand jury matter would be

handled with similar dispatch. But we believed, based on

our experience with another grand jury matter, the Court of

Appeals was moving with -- as rapidly as possible to get an

answer to a pressing question; and we believed that it would

happen quickly. That is the answer to question one.

Why did we not seek explicit expedition? In part,

because local rules and practice explicitly expedite such

processes and because in a similar matter we knew that --

THE COURT: But it's always helpful to have the

Government seeking expedition.

MR. ZELINSKY: Perhaps it would have been helpful

in this case --

THE COURT: I think so.


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MR. ZELINSKY: -- to do that, Your Honor, to the

Court. But that is the reason that it was not sought in the

first place.

As for the mandate -- not seeking expedition of

the mandate, I think there are two issues that are involved

in that. The first is the Government continues to seek

Mr. Miller's testimony in an ongoing matter; that is an

ongoing investigation. Mr. Miller's testimony is sought for

it.

The Government made a balancing assessment as to

how rapidly Mr. Miller's testimony was necessary and the

other matters the Government had going on at the time when

the mandate was issued. The determination was made that, in

terms of government -- available government resources, there

was a lot going on, to be quite frank, at that point, in

terms of what was happening at the Special Counsel's office

from publicly available material and, given where resources

were focused, that was not the first and primary issue.

As Mr. Kamenar has indicated, we are now in a

period where there is significantly more resources to

dedicate to an investigation, an ongoing investigation. And

so to the extent that there was not a move to issue that

mandate rapidly, it was because the Special Counsel was

involved in a great deal of ongoing matters then and a

determination was made that we should not needlessly ask the


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Court for something when we were not necessarily in a

position to rapidly follow up; and we didn't want to be

misleading and make that characterization. That is not the

case now, it's been transferred to the D.C. U.S. Attorney's

Office where there are ample resources.

We are more than ready -- as indicated by our

emails of May 6th, by our email of May 22nd -- to proceed

with all available speed to make sure that we resolve this

matter as rapidly and as expeditiously as possible.

THE COURT: All right. So Mr. Kamenar has raised

two different reasons for what he calls his prime facie

case, to meet his burden of showing that there is grand jury

abuse by continuing to seek Mr. Miller's testimony before

the grand jury; one, Bob Mueller has issued his report, he

is done; two, Roger Stone has been indicted.

Is it the Government's position that it has

continuing legitimate reasons to pursue Mr. Miller's

testimony before the grand jury?

MR. ZELINSKY: Absolutely, Your Honor.

THE COURT: And would you like to approach and

explain to the Court and put on the record on an ex parte

basis what those reasons are?


(Whereupon, a sealed bench conference was held.)


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(Whereupon, the sealed bench conference concludes.)

THE COURT: All right. Mr. Kamenar, do you want


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to add anything to your papers before I rule?

MR. KAMENAR: I'm sorry, Your Honor?

THE COURT: Do you want to add anything to your

papers or anything else that you would like to say before I

rule?

MR. KAMENAR: No, Your Honor.

I think it's pretty well summarized. Only that,

with respect to the need for my client -- Mr. Zelinsky did

represent in his email that he wants to focus on the work

that --

MR. ZELINSKY: Your Honor.

MR. KAMENAR: This is --

THE COURT: Why don't you approach, both of you.

(Whereupon, a sealed bench conference was held.)

(Whereupon, the sealed bench conference


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concludes.)

THE COURT: You may go back to the podium.

To the extent, Mr. Kamenar, that you have

questions about the full scope of the inquiries that will be

made of Mr. Miller in the grand jury, that's something that

you can confer in private with Mr. Zelinsky and Mr. Kravis

about, and it's not something that the Court has to get

involved in.

Is there anything further that you want to say

before I rule on your motion?


Only that if the Court is going to deny the motion

that we would work out with counsel for the Government, as

you did in your prior order, where you indicated that -- in

terms of appearing before the grand jury, that we could

arrange when that would take place. So I would just like to

put down on the record that we need some time to make those

arrangements.

THE COURT: Well, we'll see about that.

All right. Following an appeal of this Court's

August 10, 2018 order finding the witness, Mr. Miller, in

contempt for failing to appear before the grand jury for

reasons that this Court found insufficient and the Court of

Appeals ultimately also found insufficient to warrant

quashing of the grand jury subpoena, the D.C. Circuit issued


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its mandate yesterday returning the case to this court

having forewarned the parties and this court that it was

about to issue the mandate on May 28, which it did.

Late last night, the witness filed a motion

seeking to vacate the civil contempt order of August 10,

2018, to vacate the order of July 31, 2018 compelling him to

testify before the grand jury, and to quash the special

counsel's subpoena to testify, and to stay imposition of the

July 31 order pending disposition of the motion. I plan to

dispose of that motion now.

There were two parts to that motion; the first

part being the witness's request that a new grand jury

subpoena be issued by the U.S. Attorney's Office for the

District of Columbia rather than by the special counsel's

office; that request now has been withdrawn, so this Court

need not rule on that portion of the motion making that

request for a new grand jury subpoena.

As to the portion of the motion seeking to vacate

the civil contempt order of August 10, 2018 and to quash the

grand jury subpoena, that motion is denied.

The law is well-settled, as this motion makes

clear and points out, that a grand jury may not be used for

the sole purpose of pretrial discovery in cases in which an

Indictment has already been returned because it is improper

for a prosecutor to use the grand jury for trial


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preparation. And, in this case, the witness has said

that -- offered two reasons for why enforcing the contempt

order and compelling him to testify would be an abuse of the

grand jury process because Roger Stone has been indicted and

that having Mr. Miller, who is associated with Mr. Stone,

testify before the grand jury is, to the witness's mind,

simply an effort to obtain additional pretrial discovery in

a case that's already been indicted. That would be

improper, as I have just stated.

And that proposition has been very well and

articulately laid out by Judge Friedman of this court in

U.S. v Sitzmann, 74 F. Supp 3d 96, jump cite 122 through 23,

a D.D.C. case from 2014; also, see U.S. v Star, a Ninth

Circuit case from 1972.

At the same time that a grand jury cannot be used

to obtain pretrial discovery for an indicted case, it is

also well settled that it is not improper at all for the

Government to continue to employ a grand jury after an

Indictment has been returned so long as strengthening the

Government's case or preparing for trial is not the

prosecutor's sole or dominant purpose; see Judge Friedman's

case in Sitzmann; also, see In re Grand Jury 95-1 involving

Anderson, 59 F. Supp. 2d 1, a D.D.C. case from 1996; see,

also, U.S. v U.S. Infrastructure, Inc., 576 F.3d 1195, an

Eleventh Circuit case from 2009, which stated that a grand


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jury cannot be used solely or primarily to gather evidence

against an indicted defendant, but it be can used to

investigate whether a defendant committed crimes not covered

in the Indictment. See U.S. v Leung, a Second Circuit case

from 1994, stating it is improper to use a grand jury for

the sole or dominant purpose of preparing for a trial under

a pending Indictment, but not for other reasons.

Also, see U.S. v Ruppel, a Fifth Circuit case from

1982, and In re Grand Jury Proceedings, 632 F.2d 1033, a

Third Circuit case from 1980 making the same points.

Where the purpose of the grand jury process is

directed to other offenses or other individuals: Any

collateral fruits from bona fide inquiries may be utilized

by the Government; see U.S. v Sellaro, Eighth Circuit case

from 1973. See, also, U.S. v Flemmi, a First Circuit case

from 2001, stating that: Evidence obtained pursuant to an

ongoing grand jury investigation may be offered at the trial

on the initial charges. See U.S. v Alred, Eleventh Circuit

case from 1998, holding that: While the Government may not

use the grand jury for purposes of discovery or trial

preparation, it may continue investigation for a legitimate

reason even if it thereby obtains information relevant to

the pending prosecution as an incidental benefit.

See In re Grand Jury Proceedings, a First Circuit

case from 1987, stating: The prosecutor in a trial may use


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evidence incidentally gained from a grand jury primarily

investigating other crimes. See U.S. v Gibbons, a Tenth

Circuit case from 1979, stating that a grand jury proceeding

is not improper just because the Government may derive

incidental benefit from the post Indictment investigation.

In sum, it's not improper for the Government to

continue to use the grand jury post Indictment when the

grand jury is investigating other offenses that are not

covered in the pending Indictment or is investigating

unindicted potential targets.

Here, the Government has provided the Court with

legitimate reasons for its continued use of the grand jury

to hear from this witness. Without going into any detail as

to what those other legitimate reasons are, they are on the

record in the sealed portion of this transcript. And these

continuing, legitimate reasons to hear from this witness

make it plain that the grand jury is not being abused in

this case and that the Government continues to have a need

to hear from Mr. Miller.

Due to these legitimate reasons, the witness has

not met his burden of establishing that compelling his

testimony before the grand jury would amount to abuse of the

grand jury process. Accordingly, the witness's motion is

denied.

All right. Mr. Zelinsky, when is the next time we


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can have this witness testify before the grand jury? Or do

you want to have time to consult with Mr. Kamenar about

those arrangements?

MR. ZELINSKY: If we can have a moment to consult,

Your Honor.

THE COURT: Also, make sure that you are

consulting about, perhaps, a joint motion to continue a stay

that has now been lifted to compel his testimony.

(Proceeding pauses.)

THE COURT: May I just say that this case has been

pending for almost ten months. The D.C. Circuit made it

clear last week, over a week ago at this point, that it was

issuing its mandate yesterday, and you all are having to

have this lengthy a conversation to decide how we're going

to proceed?

MR. ZELINSKY: Your Honor, Mr. Kamenar has

indicated that he would not like to bring his client in to

proffer, that he would prefer to put his client in front of

the grand jury; and we can have a grand jury available for

testimony this Friday.

THE COURT: All right. So, from my August 10th

order, I ordered that the witness shall be confined at the

District of Columbia jail, as that facility is nearest to

the grand jury, until such time as the witness was willing

to give such testimony and provide such information as


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required by the Court's July 31, 2018 order provided that

such period of confinement shall not exceed the life of the

term of the grand jury, including extensions, before which

such refusal to comply with the Court's order occurred and,

in no event shall such confinement exceed 18 months. And it

is further ordered that this order is stayed until

August 14th, at which time the stay shall be lifted, except

that the stay shall remain in place if the witness has filed

a notice of appeal or the witness and the Government have

filed a stipulation setting out an alternative arrangement.

So that stay that remained in place until this

morning because the witness filed a notice of appeal is now

lifted. And I take it that the witness is now agreeing to

testify on Friday, so there is no reason to confine him at

the D.C. jail until Friday; is that what you are saying,

Mr. Kamenar?


THE COURT: And you understand that if Mr. Miller

does not appear before the grand jury on Friday he will be

in contempt and there will be an arrest warrant issued for

him?


THE COURT: Do you understand that?

MR. KAMENAR: Yes.

THE COURT: Does your client understand that?


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MR. MILLER: Yes, Your Honor.

THE COURT: All right. I expect I will hear from

the Government should Mr. Miller fail to appear on Friday.

At what time, Mr. Zelinsky?

MR. ZELINSKY: 9:30 a.m., Your Honor.

THE COURT: 9:30 a.m. Friday, Mr. Miller's

presence is required.

I will continue to stay my order of August 10

ordering him confined at the D.C. jail until his

testimony -- since he has indicated his willingness to

testify on Friday.

Is there anything further to address today,

Mr. Zelinsky?

MR. ZELINSKY: Nothing further from the

Government, Your Honor.

THE COURT: Mr. Kamenar.


THE COURT: All right. You are all excused.

MR. KAMENAR: One other question, Your Honor, I'm

sorry. Since this hearing was open, would the Court unseal

the motion that I filed since we have discussed it, and

there is nothing in there that --

THE COURT: I think there are attachments to that

motion which may contain grand jury-related information.

MR. KAMENAR: Well, those can be --


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THE COURT: Am I correct on that, Mr. Zelinsky?

MR. KAMENAR: Those can be excised, if you think

there is something in there.

THE COURT: Mr. Zelinsky.

MR. ZELINSKY: You are correct. We will propose

redactions to the Court several hours from now.

THE COURT: By close of business today I will

expect those proposed redactions so that, by close of

business today or shortly thereafter -- by "close of

business" I mean 5:00, I will be able to unseal as much as I

can of the motion filed last night.


THE COURT: Thank you.

THE DEPUTY: This Honorable Court is adjourned.

(Whereupon, the proceeding concludes, 11:48 a.m.)

CERTIFICATE

I, ELIZABETH SAINT-LOTH, RPR, FCRR, do hereby

certify that the foregoing constitutes a true and accurate

transcript of my stenographic notes, and is a full, true,

and complete transcript of the proceedings to the best of my

ability.

Dated this 29th day of May, 2019.

/s/ Elizabeth Saint-Loth, RPR, FCRROfficial Court Reporter


EXHIBIT 3

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