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
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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.
3
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
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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?
MR. KAMENAR: Yes, Your Honor.
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?
MR. ZELINSKY: Thank you, Your Honor.
(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?
MR. KAMENAR: No, Your Honor.
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?
MR. KAMENAR: Yes, Your Honor.
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?
MR. KAMENAR: Yes, Your Honor.
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.
MR. KAMENAR: No, Your Honor.
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.
MR. ZELINSKY: Thank you, Your Honor.
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
Case 1:18-gj-00034-BAH Document 58 Filed 05/30/19 Page 34 of 34
EXHIBIT 3
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