morning polar phonies on the half of a punch dish watch i'd like to begin by going through some of the provisions in the agency's declaration that highlight our arguments and then address the public interest almost a quarter some other preference s that the document called collect collectively reflects names in adana finding information of individuals who were subpoenaed who were intended to be subpoenaed reflects in quotes grand jury testimony now the reason why that's important is because we know more than thirty of the destiny of more than thirty five witnesses who appeared before the grand jury we know the substance of some of their testimony we know the general direction of the grand jury in the strategy they were pursuing they were looking at at least two aspects of mrs clinton's testimony to investigators one be what bill is going  ok i was saying we know the identity of more than thirty witnesses who appeared before the grand jury we know so at least some of their testimony because it was quoted in documents we know the general direction that the grand jury and prosecutors were taking they were interested in mrs clinton statements about two aspects of her work at the at the rose law firm and little rock first being how her firm came to be retained by madison guaranteed savings and loan failed savings and loan and then the work that she did for that so we know that was the focus of the grand jury's efforts was that all true in crew also with respect to delay congressman  way it was exactly it was it was exactly the same situation wasn't it i think there's even more information this publicly available here in the crew case at least support according to the pew report decisions all that was available was that congressman de lay had acknowledge is it is your position that that difference eliminates any private privacy interests that this is going to might have here or just reduces well both you both have going to be both going to be they want to have s then we have to go on and find out what the other what's the public interest and then palettes correct yes that's correct your honor ok with respect to that public interest you know we have identified your only distinction between this case and crew is that is that more information was was known about mrs clinton than about congressman de lay that's absolutely correct much and how do we know that it's because of this report that the independent counsel's report that we included in the record details this particular aspect of the investigation it summarizes the evidence that summarizes their thought process that summarizes the charges they were  interest we have at least four reasons why we believe it's in the public interest first the crew case said that that says there is a weighty interest in the public and shedding light on how prosecutors handle corruption investigations of prominent public officials so right off the bat this court's precedent already says there's a weighty in for sets a draft indictment what with respect to the draft indictment in particular we think there's a was that involved in the crew case you know that was not involved in the creation and so it doesn't a draft indictment raise separate concerns i don't think it raises separate concerns i do think there still is a   after a long investigation into a public figure you know i mean i'm not sure how this would look to give me a draft and thank you so i can consider this and i suddenly decide not to  prosecute are you saying there's a public interest in that draft indictment i think there certainly is a public interest in seeing a number of things about that draft indictment the first being how close it was to a finished product was this something that was a polished and finally it was rated go and it was pulled back the last minute because the subject of it was the part of the president's wife and of a high level presidential advisor or was it some more random thoughts that were really complete and it was forgotten or left on a on a computer or a shelf somewhere so there's a public interest in knowing how far in terms of the operation of the special prosecutors in this instance is that there's an public interest in knowing how far they are how close they were or how not close they were to it to issuing indictment there's also a public interest in comparing the the in draft indictment to the report that was issued to see if there's a change a difference in focus or emphasis all right i see your argument on the public interest now what about the privacy  material of that prosecutors were already looking at has been made available so the question becomes a normal thing about the content of material available a draft indictment is a proposed government position as to why the behavior of this individual was illegal that's right now fundamental is a sense that we do not accuse people of illegality without a formal indictment in this case your honor we already know that the public the special prosecutors found mrs clinton statements to be fact factually in substantiated or factually inaccurate they found them to be false the question was we know this we know this from the reports and from the memo that art that we included in the in the n f l there that it may be tradition and they have you here but the prosecutor decided not to file an indictment and a question in this case is what privacy interest remains and the government has not answered that at all well the government may not have answered in its brief but the just to pick on what george zimmerman was saying i mean this court has spoken pretty regularly about the very issue he raised i mean  in fun for constitutional government we said the release of this type of information is a draft inviting represents a severe intrusion on the privacy interests of the persons in question and she deals only on exceptional circumstances i mean we said things like that again and again and it seems to me that that clearly must apply to a draft in so if you apply this case to this case you have to identify you have to identify quote an exceptional interest note then we'll take it in favor of disclosure so what would that be here just finish my question this was doubting that's what was doing here in the court was saying that with respect to a document like a draft indictment it's as judge silberman said highly interesting i think there is exceptional interest in the how the special how the special prosecutors were handling it that's true in every case you can always say that not everything which this case from anything else touched on not every case involves the wife of the president and a high level presidential adviser and not every case in not every case is a mountain of grand jury material and prosecutors you know descriptions of their activities that are separate are you proposing sort of a separate rule for candidates for the presidency and their spouses you know i'm what i'm saying is look helen draw the line of mean you know congressman de lay was a powerful member of the congress line i think the focus has to be on the privacy this is ultimately a balancing test all right let me talk about privacy the target here hillary clinton your view because she is a major public figure she has less of a privacy interests i think it is she has a diminished public interest as a privacy as a no no no no not publicans privacy and we're talking about our privacy and right i believe she has a diminished privacy interest because she is a public know actually i'm not sure that is correct a draft indictment would be on the internet in thirty six seconds and most people would see that as a formal government many people would see that as a formal government accusation of illegality and that seems very troubling since it was not filed it was not accepted you know prosecutors said distribute a publicly a draft indictment when it wasn't filed no i don't believe it is terribly unfair especially when a government report or the prosecutor's report is already been available i mean it's been publicly available you could buy it in bookstores the reporters since arriving an accusation of illegality formally by the government is something entirely different but it's a draft indictment it's not an accusation of it like illegality and the report actually says decided not to prosecute so that makes clear so if we're talking about privacy and there's a mountain of information out there that is already what is contained within the draft indictment what privacy remains and that is a question the government has never answered and what the court is charged with here is doing a balancing test well you know when you say the government didn't answer it seems quite apparent to me and i deduced it from the government i can't i think the government's position is a draft indictment would would always be nice an invasion of privacy now i know we can't be too categorical but i find it hard to imagine a case in which a draft and night one would be disclosed while this court is not applied categorical claims of withholding and in the end usually that the analysis in that context is whether or not you know there is a some sort of individual analysis is not of us any assistance to the court and in this instance that individual analysis is exactly what differentiates this case from any other case that i found that this court has decided this court has never decided whether a draft and whether a privacy interest remains in a figure who is the subject of a special  prosecutor's report that's been published to the world with the court's permission i mean this court authorized the approval of that report it had oversight responsibility and it could have if it wanted at that time back in two thousand and one i believe it was but at this it was charging a statute with taking action to protect the privacy of the people can who were referenced in there in the report and it decided not to do that so what is your response to the earlier question question put it to you that it is used as a formal charge it's what the government was thinking of charging yes we know those we know that we know it was thinking of charging mrs clinton for a justice yeah that is you have the report you have the evidence you can make your own judgments and so can the public so getting the draft indictment is what you can make all the conclusions you want to about how the independent counsel conducted the investigation and argue he should or should not have indicted but what is the draft indictment itself other than a formal charge  the weighty interests that the crew court said it had in the public has been shedding light on what the prosecutors how the prosecutors handled this prosecution and as i was saying if the document if the document is close to being final than it was pulled back they decide not to indict your argument is in draft indictment i think to say draft indictments can never be released because there's the privacy interests are always going to be outweighed and we're trying to identify it and i thought that's what this question was doing and i didn't hear your answer i thought i answered that question earlier and that was that there is we have at least four first one we talked about the way to interest but second but more specifically spaces but the point is we are interested in seeing how complete how close the government was they did have a complete draft indictment that was fall polished and final and ready to go but they pulled their punches because it was the president's wife or is this something that was incomplete it was something that was forgotten and put on a shelf you know someone started drafting some initial thoughts i have lots of draft complaints on my computer dating back to ten for ten years your honor and you know some are never been filed s good morning because riley for the government it sounds like the court has a greater standing and a good grasp of the issues in this case and maybe answer any specific questions i just like to briefly respond just on that on this question on under seven  about the balancing test fav if the supreme court's decision on the exemption seven c involves a high level of privacy interests of a high level white house official and it apply the same test so i just want to make clear that there is no exception here because of the fact that mrs clinton was married to the chief executive or was herself a senior advisor the other important point i think that that favors made was that when the public interest alleged is an interest in learning how the government performed its investigation or allegations of government misconduct the burden is on the requester to do more than simply make an allegation but rather have to present meaningful evidence to support that allegation because allegations of misconduct are easy to to assert court's view that there is no public interest here because the office of independent counsel cysts that's what it is and the government doesn't defend that so your argument you saying there is no public interest or that it's there is but it's we don't have to send this back all that you know if we think like the district court that there is a privacy interest i'm sorry a public interest that has to be weighed against this is interesting privacy there sixty argument about you know the fact that there's an independent counsel report that's already out there the fact that there's been a disclosure of this redacted evidence memo all those things i think reduce the public interest in finding out specifically what's in these drafts but i think you know to your question specifically i think absolutely this court could conduct that balancing supposed to turn to argument two slight ramifications suppose there nature of that evidence but you know more directly i think you'd have to find the current favorite was very clear there has to be a nexus between the disclosure of the specific information sought and the allegation or evidence of government misconduct so there have to be some showing that the contents of the draft indictments not just you know the fact that they exist or their lands or those kinds of things that the actual content themselves with somehow cast light on the evidence of bribery or the allegation of bribery i think that's a good absolutely i think it would be difficult to imagine a case where a draft of an indictment would be especially in a case where the an indictment was never actually filed would would the balancing would come out under seven c in favor of disclosure i think it's also difficult to imagine a case where  think you're right it would be very difficult to imagine a scenario where we're where that would be disclosable if we said well it was difficult to imagine would that be a categorical rule it wouldn't be a categorical rule but it would be a statement of calling close i think that's right but you know for the very reasons i think you're identified i think it would be appropriate but we've already we already have a pretty clear precedent on what the standard is right that that's fun for constitutional right that's the case right and it says there is no per se rule but but i'm looking for the rule here but that in order to justify the release of something like a draft indictment  there have to be exceptional interests that's our standard absolutely that's interests that's exactly right so can you can you think of the situation judge sautner mentioned evidence of bribery can you can you think of a situation under which exceptional circumstances would exist to release a dr i mean it's very difficult to imagine a scenario that would both were both you'd have exceptional intra public interest in the disclosure the indictment that would satisfy the ditto would it would it make a difference if if if if this case had come up if we were hearing this case last october a month before the election i'm not sure your argument there that you know move this is a candidate for the presidency right i don't i don't think i mean that may be a factor in the bouncing i don't think it would change the outcome here and i would note that the district court issued its decision in october of two thousand and sixteen really at the peak of what we were deciding and now i just you know we can't  case already says there's no per se rule and there has the we're not going to order these released unless his exceptional circumstances so we have to be careful not we have to be we have to be faithful to that no we can't write something that says this will never happen right because we've already said they can be released in exceptional circumstances so that's exactly right and i think as with me a whole lot of i could if you could help me think of a case where these circumstances would be exceptional i  that's exactly right if there was you know the potential for the disclosure to lead to some you know consequences in the future to affect an ongoing investigation that would certainly be closer but to be clear you know in this case we're talking about drafts a draft of indictments that you know again the contents of which  never been disclosed and which you know represent an invasion of privacy that this court has recognized is severe or at the kind of the peak privacy interest of this court is recognized because this is a case where there was not only was the individual never convicted there was never even an indictment filed so i don't think we're we're approaching that line just yet i'm happy to answer any further questions either on exemption seven c or on exemption three and rule six see if the court has any if not we're happy to rest on  so crew applies crew recognize that you know the faddish line of cases where there's the requester is alleging some sort of government misconduct on the part of the prosecutors who has to make some additional showing that that doesn't apply here i have to take issue with this exceptional interest notion that somehow regardless of how much whatever the exceptional interest weighs only on the prowl in the public interest side of the balancing scale i think the exceptional interest in this case will be exceptional circumstances in this case is the mountain of information that has already been made public that's what makes this case different from fun for constitutional government there was no report there was no two hundred page memorandum detailing the evidence available but doesn't that reduce the public interest if a vast amount of information has already been released in terms of balancing it's a i mean maybe it adjusted somewhat but i still think without some demonstration of privacy that remains i mean we know so much about what this prosecution was doing we know how much money mrs clinton was making at the rose law firm in the three years in which that were in question that that fits information about what that office was doing including that there were drafts including that it decided not to indict with an explanation as to why decided not to and yes that's why i'm trying to focus shit what you're lying what i'm saying is exceptional isn't limited to just one side of the scale what is your line our line is exceptional applies to both the reports from grand jury information that that could be redacted and and hold on a line by line basis but that's what they've done they're withholding everything from the caption to the page numbers now it's not to say we have a public interest in the page numbers but that does highlight the fact that they are withholding everything from us and the notion that there is not some one single line or or or you know paragraph that can be disclosed here because it's vital to protect mrs clinton's privacy in light of the mountain of information that's already out there that's just fundamentally wrong so in looking at exceptional circumstances i were exceptionally exceptional language the language about exceptional interests that issue in fun for constitutional government i would urge the court to apply that to both sides of the balancing scale because the court fundamental constitutional did not say that it applies only to the private interest and you're right you're right about that us ok let's talk soon you're right about that so then i right then to think that the way you would apply that in this case is you would say there are exceptional circumstances here because on the privacy side so much is known that her privacy interest is reduced right yes and then how do you it on the other side well for all the all the articulations of the public interest that i've already gone through which is you know starting with the crew weighty interests and how special prosecutors are handling these prosecutions of high level or investigations of high level criminal don't you think  office in the penn accountable no one exists doesn't seem right to me but it does seem to me at least relevant that that that statute is gone so maybe the public interest in knowing about that is likewise diminish independent counsel and the independent counsel statute no water exists special prosecutors the question of special prosecutors the women with the wisdom of retaining them how they should probably function that it was more time we now than ever me that something that is so dramatic twenty five thirty years ago doesn't have a strong public interest as a matter of history it's not so i'm not clear about that whether whether interest is relevant only if something is present or i'd hesitate to ever say that there's no public interest in history or i mean i think though the public interest is not diminished it does not diminish because the in part because the actors involved in that and that situation are still around they're giving book tours all around the country and people are lining up to see her so there is always going to be a public interest short of a public in so far as the re tryst you know my view of the privacy interest here is very powerful but insofar as a public interest i'm not sure that it wouldn't be just as relevant fifty years from now because of the historical significance but it's a puzzling question because in our cases we've tried to consider whether or not the public and uses are indication of how the government is operating and sometimes the time between an event and the president