Last Friday, attorneys for plaintiffs and the defense presented oral arguments in the case of Lawyers’ Committee for 9/11 Inquiry v. Garland, before a panel of the United States Court of Appeals for the Second Cirucuit. Below is a transcript. Arguing for plaintiffs is Attorney Mick Harrison of the Lawyers’ Committee. Arguing for the defense is nn attorney Hogan, otherwise unidentified. For a recording click HERE. Defendants are the U.S. Attorney for the Southern District of New York and U.S. Attorney General Merrick Garland. Plaintiffs are appealing the alleged failure of the U.S. Attorney’s Office to relay to a federal special grand jury evidence concerning federal crimes in the attack on the World Trade Center in New York City on Sept. 11, 2001. — MCM
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A COURT OFFICIAL: Hear ye, hear ye, here ye. All persons having business before the United States Court of Appeals for the Second Circuit draw near, give your attention, and you shall be heard.
A JUDGE: Thank you, Ms. Rodriquez. [Here follow remarks related to the Zoom nature of the proceedings.] Our first case for argument is Lawyers’ Committee for 9/11 Inquiry v. Garland. . . . Mr. Harrison?
MICK HARRISON: Yes, your honor.
JUDGE: Mr. Hogan?
HOGAN: Good morning, your honor.
JUDGE: So, Mr. Harrison, you’ve got 10 minutes but we reserve two for rebuttal, so that gives you eight out of the gate. You may proceed.
HARRISON: Thanks, your honor. The case below was decided on standing. The plaintiffs are three 9/11 family members, two ground zero responders, two non-profits, and one architect associated with one of those non-profits. There were four counts in the complaint. As your honors know, the standing is to be analyzed count by count.
The district court erred below on the standing issue, first, by making a fundamental procedural error, which was to consolidate the analysis of standing of counts 2, 3 and 4 as if they essentially were the same. The problem with that is that count 2 is a First Amendment claim. Counts 3 and 4 are mandamus claims. So had the court separated those claims and analyzed the First Amendment claims separately, the standing analysis would be straightforward.
As your honors know, there is a three-part test for Article 3 standing: Injury needs to be shown (injury-in-fact); injury needs to be traceable to the conduct of the defendants, alleged; and the relief requested from the court needs to provide remedy for that injury, if granted.
In this case those requirements are clearly met. The Supreme Court — and this court — has recognized that even in a First Amendment case where there’s not a complete obstruction of a right, but merely the interference, hindering, inconvenience, discouraging or chilling of a First Amendment exercise that …
CHIEF JUDGE DEBRA ANN LIVINGSTON: Mr Harrison, is there a case that identifies a First Amendment right to present evidence to a grand jury?
HARRISON: Not to my knowledge, your honor. And that’s a key question. The government, I think, attempted to give the impression that there was. I recall that they cited a Sixth Circuit case that was unpublished regarding a pro se prisoner — Granton, I believe — and in that case, which may be the closest your honor has to either of the briefs to answer the question you asked.
That case also did not answer the question because the pro se plaintiff there … first of all didn’t have a lawyer. So the court denied relief because that pro se plaintiff did not articulate legal authority on the point your honor just asked about.
CHIEF JUDGE LIVINGSTON: But is that a problem for you, though, that you don’t have a case to point to? And the cases that have addressed this do seem to be solely or predominantly, I guess, in the prisoner-access context. So it seems like it is an issue, but it seems like it’s a problem for you.
HARRISON: Well, the applicants don’t see it as a problem, your honor, but it is a challenge for this court because I think this court may be the first ever to decide that question. And the reason that I don’t believe as counsel that it’s a problem for appellants is that the Supreme Court precedent is clear not on grand jury petitions specifically, but on First Amendment petitions to redress, generally and in many other contexts, that the First Amendment right to petition applies to all branches and to all components of the federal government.
JUDGE WALKER: . . . no question that you have a First Amendment right to petition the government under the First Amendment. The only question is what is the government’s responsibility having received that petition. You have no First Amendment right to have the government act on the basis of your petition the way you choose or in any other way. I mean, really, there is no First Amendment right on the part of the petitioner to have the government listen to the petition. You can petition, but the government may or may not act on it.
HARRISON: I understand your honor’s point. I think the case law agrees with you as far as that goes.
There is a developing debate between, I think, the academic community on the law regarding the obligation of the government to respond to a petition. The courts have not yet embraced at the highest level that position. We may evolve there, but at the moment I think the case law agrees with your honor.
The question, though, is how does that apply to this particular situation. And the key distinction is, the plaintiffs’ petition was addressed to the special grand jury, seeking a special grand jury investigation, a public report of government misconduct. It’s true that we delivered it to the U.S. Attorney, as your honor I think is contemplating. The U.S. Attorney chose not to act on it. The U.S. Attorney may well have that discretion. The problem lies in not handing it to the other government entity for which it was intended, the special grand jury. And our position isn’t that the federal grand jury has an obligation to agree with the plaintiffs, even to read the petition, to respond to it, although we think that the grand jury duty, one of the grand jury’s duties under the Constitution, may require them to read it and evaluate it independently; if they don’t, then there is a Constitutional problem there.
But the problem here, your honor, is, that petition was never delivered. This is just a case about delivery.
ANOTHER JUDGE: But again, this is a standing issue. Now you’re back to the statute. Now we’re out of the First Amendment. Now we’re talking about 18 U.S.C. 33:32, right?
HARRISON: No, your honor, the delivery question applies to both the First Amendment claim and the mandatory duty claims under 18 U.S.C. 33:32A. So it’s an issue in both. I was answering Judge Walker’s question in my last response. But the standing question, which I started with, is straightforward here: An injury-in-fact exists. A First Amendment right is obstructed or even hindered. In this case the obstruction is the failure to deliver to the grand jury. So it’s clearly traceable to the acts of the defendants, and if your honor gives us an order that says to the U.S. attorney, please deliver the petition to the grand jury, we’ll have a remedy for that injury. So there is the standing under the First Amendment claim here.
So going quickly to the mandamus claims, although one can argue as the Southern District of New York did back in 1985 — and as I’m sure your honors have noted, we agree with the 1985 decision . . .
A JUDGE: The problem with the 1985 decision is, first of all, it’s a Southern District case — it’s not binding on anybody, really. And second, that it predates Zelesky, which stands for a totally different proposition and overrules it, right?
HARRISON: No, your honor, Zelesky did not address this particular question. Zelesky was decided on the fact that a plaintiff there did not invoke 18 U.S.C. 33:32A because he didn’t request the U.S. attorney to deliver his information to the grand jury. The question was never reached.
The court did talk about the question in dicta and even then qualified its language about what appears might have been the case had the court reached the question. So this court is going to have to address that question in the first instance in this case. Your honor, my eight minutes primary argument time is elapsing
A JUDGE: Well, you’ve got two minutes for rebuttal. Now we’ll hear from Mr. Hogan.
HOGAN: Good morning. May it please the court . . . In 2018 plaintiffs presented what they called to be a petition to the U.S. Attorney’s Office for the Southern District of New York setting forth alleged crimes that they thought occurred on the morning of September 11th, and they asked the U.S. Attorney to present this information to a grand jury pursuant to 18 U.S.C. 33:32A. And this case presents two questions for the court’s review, though only one was touched upon in the counsel’s opening argument — the first being what plaintiffs have standing with respect to their allegation that the U.S. attorney allegedly did not present this to a grand jury, and then, second, if this had been presented whether applicants are entitled to any of those grand jury records.
So, just talking about the first of those two issues, with respect to standing: Of course it’s fundamental that plaintiffs have to demonstrate both harm and addressability for there to be standing. And the plaintiffs have asserted a bunch of different things with respect to standing, the First Amendment being one of them. But, quickly, they also asserted other claims, other theories that were not mentioned in the opening arguments with respect to bounties from the State Department if terrorists are brought to justice, or special interests about transparency and accountability of 9/11, or prosecuting the people to receive justice.
So the government would submit that for all those reasons in its brief those have been repeatedly rejected by courts with respect to giving enough for a plaintiff to have standing.
But talking specifically about the First Amendment issue, that doesn’t somehow fundamentally change the calculus here, as plaintiffs want us to believe; simply because, as Judge Lee properly noted, there simply is no case that the government has ever held a First Amendment right to communicate and petition directly to a grand jury. Kebranis held so when he was a District judge in Re New Haven Grand Jury.
The Third Circuit has said so in Barinosky, the DDC [U.S. District Court for the District of Columbia] has said so in Sibly vs. Obama — both of those last two cases being in the 33:32A context. The Southerm Circuit said so in Gratten [sp.?].
And . . . in a related context this Circuit has also held that a defendant doesn’t have the right to personally appear before a grand jury that is investigating it. And that’s in Cianbrone from the Second Circuit.
So all of this leads one to believe that there is no First Amendment right there. And without that right there is obviously no wrong that plaintiffs have suffered that gives rise to standing. And all of these cases so concluding, it is for good reason, as Judge Kabronis has noted in his New Haven case when he was a District judge, to allow a member of the public to directly communicate with the grand jury would, as he put it, open it up to being used to “by hook or by crook” allow people to potentially use the grand jury for improper purposes, as he said, “for personal vendettas, malicious prosecutions,” and it would undermine the very reason the grand jury found its way into the Bill of Rights, to protect the rights of the innocent.
So, your honors, the government does submit that — and it’s happy to talk about any of the other theories of standing that the plaintiffs have asserted — the plaintiffs are attempting to hang their hat on the First Amendment. The government would submit that there is no First Amendment right there. And accordingly, it was proper for the District Court to, as appellants noted, to consolidate these standing issues into one analysis, because if there is no First Amendment right, then you have to look elsewhere for the harm that gives rise to standing.
And turning to the second of these issues, your honor, the grand jury materials, it’s of course fundamental that a grand jury operate in secrecy. This is a tradition older than the nation. This court has said as much, and the government would just submit that even though there are exceptions related to grand jury argument that are set forth in federal criminal procedures 6E, they are all plainly applicable here. The only one that potentially applies is this idea that a person can get records in connection with another judicial proceeding of some type. But even there you have to show that there’s some type of injustice that will arise in this other proceeding that outweighs the grand jury’s secrecy concerns, and here, . . .
A JUDGE: . . ., for a second, Mr. Hogan . . . Judge Gardiffy treated this like it was like a 12 V 6 and dismissed [indistinct]. Typically, requests for grand jury material like petitions are then left to the discretion of the court, and standard of review would be abuse of discretion. So which should we be dealing with here?
HOGAN: Your honor, I think perhaps the fundamental issue here is that in the primary case the applicants rely on from the Ninth Circuit, it’s about grand jury materials, they noted a potential jurisdictional issue, with respect to the fact that the court is the entity that holds these grand jury materials and given this application was not made to the court but rather seemingly to the district attorney’s office in some way to disclose these materials. That could indeed be a jurisdictional issue, that, as I said, would again in this Ninth Circuit case, has not been raised in this litigation thus far.
But to specifically address your honor’s question, it is indeed the case that it is indeed an abuse-of-discretion analysis when you are determining whether the lower court properly relied upon or properly analyzed [indistinct] so now the government’s position that indeed an abuse of discretion even though yes, it was done on a 12 B 6 basis.
JUDGE: [Indistinct]
HOGAN: So, your honor, the government’s ultimate point here is simply that without any other type of judicial proceeding where these records are needed to outweigh these secrecy concerns that are so fundamental to the grand jury, plaintiffs aren’t entitled to these records.
And unless the court has any other questions the government is happy to rest on its papers going further. And thank you very much for your time.
A JUDGE: Seeing no further questions, we’ll hear again from Mr. Harrison for two minutes of rebuttal.
HARRISON: Yes, thank you, your honor. The first point is that the government’s concern about improper influence by citizens to a grand jury . . . It really wasn’t an intent of the Constitution in creating the grand jury as an independent government entity. The goal is for the grand jury to serve as a protection against the prosecutors, to protect against a politically motivated prosecution, an unjust prosecution. The grand jury cannot serve that Constitutional function if it never sees the evidence. If your honor gives the U.S. attorney what it wants in this case it will be able to decide to essentially withhold inculpatory evidence from a political ally that it doesn’t want prosecuted [and] withhold exculpatory evidence from a political adversary it does want to prosecute.
A JUDGE: Well, let’s talk about that. Because the case law is pretty clear that a defendant, the target of a grand jury investigation, does have the right to come in and provide his side of the story, right?
HARRISON: Not in person, but the First Amendment would give a right to submit evidence in a petition, even for a defendant — I don’t know if that’s ever been decided.
But this First Amendment petition right — the Supreme Court has never carved out an exception for the grand jury or any other government entity. The Constitution creates the grand jury as a government entity, and the Supreme Court decisions say all government entities may be petitioned.
CHIEF JUDGE LIVINGSTON: Can I just ask you . . . I don’t understand what sort of limiting principle there would be with your argument. Is it the case then that every organization or every person who has an interest in a particular topic is that they get to present something, that they’re entitled to have the government present that to a grand jury? Like, what are the bounds of this right, the way you’re putting it forward?
HARRISON: I would love to answer your question. My rebuttal time just expired.
A JUDGE: You can answer. That’s fine.
HARRISON: Thank you, your honor. So, the limits, I think, will have to be developed by the case law, and maybe by the U.S. attorney, in pragmatically managing the task. I doubt if the floodgate is going to be opened, like the government may be concerned, if citizens are allowed to communicate. Before there was a Constitution citizens did communicate with grand juries.
CHIEF JUDGE LIVINGSTON: This is a Constitutional right. And so if you’re saying that this right means that there is this ability to petition, to have this petition, have evidence brought by individual citizens or organizations to a grand jury, I don’t think that it would be appropriate, just for practical reasons, to place limits on it. Where’s something we can look to? Here are the limits to this right.
HARRISON: Well, the courts have certainly regulated the access to the court’s component to the First Amendment in terms of being able to discuss frivolous lawsuits, having certain preliminary reviews for prisoners’ actions, dismissal of standing, certainly comes to mind. It’s not an impossible task, one the government’s side.
Trans union, a recent Supreme Court case of last year, points out that there may be an inconvenience and a burden in some cases from the exercise of Constitutional rights, but if an inconvenience to the government comes up against protecting the right, the inconvenience has to give way and the right has to be honored. And that’s our position here. It is pretty much a new question, your honor, for each of your honors to struggle with and decide. I wish you the best of luck with that. I think it’s an important public interest question.
A JUDGE: I have a question. Traditionally, the grand jury has been seen as really an arm of the court, of the district court. The district court impanels the grand jury. The district court resolves any legal questions that arise during the grand jury proceedings whether it’s an indictment or a report presented to the district court. And it seems to me that [. . . ] I’m surprised that you decided to proceed by petitioning to government, by serving the petition to the government as opposed to just going to court and asking for relief.
HARRISON: It’s a fascinating question, your honor. That option exists, under exactly the same statute that we used to appeal to the U.S. attorney. The difference is, as I read the statute — I’d be happy to be corrected by your honor. There is a mandatory duty imposed by Congress on the U.S. attorney to relay reports supplied by citizens to the grand jury. I did not notice language in that statute or anywhere else that imposes a mandatory duty on the district court to relay evidence to a grand jury. I believe it’s within the district court’s discretion. And at the moment that is the reason we did not go down that path.
A JUDGE: Well, thank you both. We will reserve decision.