Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 1 of 32 PageID# 356 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION 1 2 3 4 5 IN RE: GRAND JURY SUBPOENA ) FOR CHELSEA MANNING ) ) ) ) ) Case 1:19-dm-00003 Alexandria, Virginia March 5, 2019 9:34 a.m. Pages 1 - 32 6 7 TRANSCRIPT OF UNDER SEAL HEARING 8 BEFORE THE HONORABLE CLAUDE M. HILTON 9 UNITED STATES DISTRICT COURT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 2 of 32 PageID# 357 2 1 APPEARANCES: 2 FOR THE UNITED STATES OF AMERICA: 3 4 5 6 THOMAS W. TRAXLER, ESQUIRE GORDON D. KROMBERG, ESQUIRE TRACY D. MCCORMICK, ESQUIRE KELLEN S. DWYER, ESQUIRE OFFICE OF THE UNITED STATES ATTORNEY 2100 Jamieson Avenue Alexandria, Virginia 22314 (703) 299-3700 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NICOLAS HUNTER, ESQUIRE U.S. DEPARTMENT OF JUSTICE NATIONAL SECURITY DIVISION 600 E Street, N.W. Washington, D.C. 20004 (202) 307-5176 FOR CHELSEA E. MANNING: SANDRA C. FREEMAN, ESQUIRE LAW OFFICE OF SANDRA FREEMAN 5023 West 120th Avenue, Suite 280 Broomfield, Colorado 80020 (720) 593-9004 MOIRA MELTZER-COHEN, ESQUIRE, PRO HAC VICE LAW OFFICE OF MOIRA MELTZER-COHEN 277 Broadway, Suite 1501 New York, New York 10007 (347) 248-6771 CHRISTOPHER LEIBIG, ESQUIRE LAW OFFICE OF CHRISTOPHER LEIBIG 114 North Alfred Street Alexandria, Virginia 22314 (703) 683-4310 21 22 23 24 25 UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 3 of 32 PageID# 358 3 1 2 THE CLERK: Case No. 19-3, In Re Grand Jury Subpoena Regarding Chelsea Manning. 3 MR. TRAXLER: Good morning, Your Honor. 4 Tommy Traxler on behalf of the United States. 5 at counsel table is Gordon Kromberg, Tracy McCormick, 6 Kellen Dwyer, and Nicolas Hunter also on behalf of the 7 United States, Your Honor. 8 THE COURT: 9 MR. LEIBIG: All right. Good morning, Judge. 10 Leibig for Ms. Manning. 11 Moira Meltzer-Cohen. 12 With me Chris With me is Sandra Freeman and As an initial matter, Judge, I would ask that 13 you grant my motion to move Ms. Meltzer-Cohen pro hac 14 vice for this matter. 15 16 THE COURT: The motion is granted. 17 MR. LEIBIG: 18 MS. FREEMAN: 19 All right. Thank you, sir. Good morning, Your Honor. Sandra Freeman on behalf of Ms. Manning. 20 As a preliminary matter, I would request the 21 Court first take up our motion to unseal the pleadings, 22 and I would join that with a motion to open the 23 courtroom to the public. 24 THE COURT: 25 MS. FREEMAN: All right. Yes, sir. UNDER Rhonda F. Montgomery I just wanted to SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 4 of 32 PageID# 359 4 1 make sure the Court received the pleadings filed 2 yesterday and the motion to unseal the pleadings. 3 THE COURT: 4 MS. FREEMAN: I have. Judge, the matter before the 5 Court today is not a matter occurring before the grand 6 jury as we are not in front of the grand jury. 7 pleadings filed on Ms. Manning's behalf by counsel are 8 not subject to the secrecy provisions in Rule 6(e), and 9 Ms. Manning, as a witness, is not contemplated by the 10 The secrecy rules of 6(e). 11 The pleadings that we filed before you, 12 specifically the motion to quash and the motion to 13 unseal, do not contain any information about what has 14 occurred before the grand jury. 15 Attorneys have not disclosed any of the information 16 that they are prohibited from disclosing. 17 information that we have put before the Court within 18 our pleadings and the information that we anticipate 19 arguing to you today are all matters that are already 20 within the sphere of public knowledge and that are not 21 protected by the secrecy provisions within the law. 22 The United States The The motion to quash in and of itself is not 23 something that is subject to the rules of grand jury 24 secrecy. 25 We would ask the Court to authorize UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 5 of 32 PageID# 360 5 1 disclosure of the pleadings filed as to Ms. Manning 2 with the exception, of course, of Ms. Manning's 3 declaration that is sealed and secret pursuant to the 4 personal identifying detail provisions in the rules 5 regarding redaction. 6 The rules around grand jury secrecy, first, I 7 think are explicit in that they say that no one other 8 than those listed in 6(e)(2)(B) shall be required to 9 adhere to the rules of secrecy. The persons are 10 identified, such as the attorneys for the government 11 and court personnel. 12 subject to the provisions, and they are explicitly 13 identified. 14 Of course, those people are It's clear from the rule, from the advisory 15 committee notes to the rule, and from case law from 16 various circuits interpreting the rule that the witness 17 herself, the pleadings that we have filed that do not 18 contain nonpublic information regarding the nonpublic 19 proceedings before the grand jury are not subject to 20 those secrecy provisions. 21 What we are asking today is that the Court 22 authorize unsealing of the motion to quash filed on 23 Ms. Manning's behalf, authorize unsealing of the motion 24 to unseal, and we would further ask the Court open the 25 courtroom to the public for arguments on these matters. UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 6 of 32 PageID# 361 6 1 Of course, the public has no right to be 2 present for the grand jury itself. 3 press have no First Amendment right of access. 4 not requesting that the public or the press or even 5 counsel have any access to the actual proceedings 6 before the grand jury. The public and We are 7 Our request here is for these proceedings 8 specifically before you regarding whether or not to 9 quash Ms. Manning's subpoena, regarding whether or not 10 to unseal the pleadings, that those matters the public 11 does have a particularized interest and a right of 12 access to be present. 13 public to be able to be present for specifically these 14 arguments that do not involve protected information and 15 material. 16 Ms. Manning has a right for the There are questions and tests set out. We 17 have to show a particularized need and that those 18 materials were present and opening of the courtroom 19 would be needed to avoid injustice at other 20 proceedings. 21 contemplated by the rule. 22 to open up the proceedings of the grand jury itself. 23 We are asking that these proceedings particularly be 24 opened. 25 these pleadings. This is another proceeding being The request has been narrowly tailored as to UNDER Rhonda We are not asking the Court F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 7 of 32 PageID# 362 7 1 So based on all of that, we would ask that 2 the Court be opening the pleadings and the public 3 information, the information that has already been 4 disclosed and revealed by both the government and by 5 socialists throughout the past decade, to be accessible 6 by the public and the hearing as well. 7 THE COURT: 8 MR. TRAXLER: 9 As a preliminary matter, I want to observe All right. Thank you, Your Honor. 10 that the government has not received a copy of the 11 motion to unseal. 12 responding to the specific arguments that were in that 13 pleading. 14 from Ms. Manning's counsel. 15 Ms. Manning's request to open the courtroom and to 16 unseal the pleadings in this matter. So we don't have the benefit of But instead, we just heard about it today 17 We would oppose First, I want to take up opening the 18 courtroom. 19 quote, that aside from criminal contempt proceedings, 20 the Court must close any hearing to the extent 21 necessary to prevent disclosure of a matter occurring 22 before a grand jury. 23 Rule 6(e)(5), Your Honor, states, and I We would submit, Your Honor, that this entire 24 hearing concerns a matter occurring before a grand 25 jury, and that is a subpoena that the grand jury has UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 8 of 32 PageID# 363 8 1 issued for Ms. Manning to testify in connection with a 2 grand jury investigation. 3 ongoing. 4 have an effective hearing this morning without 5 discussing or potentially discussing matters that are 6 occurring before a grand jury. 7 That investigation is It's hard to imagine, Your Honor, how we can Moreover, the pleadings and the hearing 8 directly involve matters occurring before the grand 9 jury. Rule 6(e) would preclude the government from 10 confirming Ms. Manning's subpoena, a matter occurring 11 before a grand jury; Ms. Manning's immunity order, 12 another order that was issued in connection with a 13 matter occurring before a grand jury; and other items. 14 So practically speaking, Your Honor, we 15 wouldn't be able to have an effective hearing if the 16 government is constantly evaluating under Rule 6(e) 17 whether it can say certain things because the media is 18 present in the courtroom. 19 Honor, that Rule 6(e)(5) answers the question this 20 morning, and that is the hearing, because it addresses 21 a matter occurring before the grand jury, should be 22 closed. 23 So we would submit, Your With respect to sealing, Your Honor, I would 24 direct the Court's attention to the following 25 subsection of Rule 6(e), and that's Rule 6(e)(6). UNDER Rhonda F. Montgomery That SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 9 of 32 PageID# 364 9 1 specifically states that records, orders, and subpoenas 2 relating to grand jury proceedings must be kept under 3 seal to the extent and as long as necessary to prevent 4 the unauthorized disclosure of a matter occurring 5 before a grand jury. 6 Your Honor, at the outset, we would submit, 7 having not had the benefit of receiving the pleading 8 that Ms. Manning filed yesterday, that the Court should 9 defer ruling on unsealing at this time. There is no 10 reason to go to a rushed judgment today. 11 much at stake, and whatever the Court's ruling is, it 12 would likely be appealed to the Fourth Circuit. 13 There is too Instead, let the parties brief this issue in 14 due course, and that would give the parties an 15 opportunity to work through these issues. 16 also give the Court an opportunity to make a considered 17 judgment in light of full briefing and the parties' 18 views on the issue. 19 It would But if the Court is inclined to rule today, 20 we would oppose unsealing all of the pleadings and 21 papers that they request be unsealed. 22 Just to reiterate, the fact that Ms. Manning 23 has been subpoenaed to testify in an ongoing grand jury 24 proceeding is a matter occurring before the grand jury. 25 Again, the fact that she's been granted immunity is UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 10 of 32 PageID# 365 10 1 directly contemplated in the advisory notes of 2 Rule 6(e)(5) as being a matter that should be sealed, 3 as being paper that should be sealed, and is a matter 4 occurring before the grand jury. 5 that talk about that immunity order and the subpoena, 6 those are related to an ongoing grand jury proceeding 7 and should be sealed. 8 Thank you, Your Honor. 9 THE COURT: All right. Therefore, the briefs Well, I find that 10 Rule 6(e)(5) and Rule 6(e)(6) require that we go 11 forward with these matters at this point in time under 12 seal and also that the courtroom be closed for the 13 hearing. 14 The government hasn't had time to respond to 15 your brief. 16 further at this issue as to what ought to be unsealed 17 or not unsealed. 18 I will give time for you all to look As far as the hearing on the motion to quash 19 this grand jury subpoena, that's a matter before the 20 grand jury, and we'll go forward with the courtroom 21 closed. 22 23 MS. MELTZER-COHEN: Good morning, Your Honor. So thank you for hearing us this morning, Your Honor. 24 We understand that this is a robust and 25 complicated motion, so I will try to simplify it. UNDER Rhonda F. Montgomery This SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 11 of 32 PageID# 366 11 1 is an omnibus motion. 2 omnibus motion that contains several smaller motions 3 within it, many of which contain arguments that 4 interact with each other or are somewhat overlapping. 5 The motion to quash is an Each of the quash motions in our omnibus 6 motion represents an independent legal basis that would 7 constitute just cause for objecting to the subpoena 8 generally. 9 constitute grounds to object to individual questions 10 Each of these quash motions might also that would be propounded before the grand jury. 11 So to the extent that the government has said 12 that some of these motions may be premature, they're 13 not entirely incorrect because it is true that we can't 14 litigate these issues today with respect to questions 15 that we have not yet heard. 16 appropriate both today and then, again, revisited after 17 Ms. Manning hears questions. 18 THE COURT: But these motions may be Aren't you conceding the 19 government's position in regard to what questions may 20 be asked? 21 no idea what questions are there. 22 idea what questions are there. 23 forward with today; can we? 24 25 I don't know how I can rule on that. MS. METZLER-COHEN: I have You don't have any Clearly, we can't go Judge, I'm sorry. Your Honor, what I'm suggesting and I believe what the law UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 12 of 32 PageID# 367 12 1 says is we can object to the subpoena generally, and we 2 can also, you know, in a later hearing object on 3 similar or the same grounds to individual questions. 4 So what's not premature here are the 5 following issues: 6 Amendment privileges, it would appear that the 7 government has worked to moot this issue by not only 8 securing an immunity order from you but by securing a 9 parallel order from the military. 10 With regard to Ms. Manning's Fifth So, first, as we said in the motion, we do 11 have concerns about a perjury trap. 12 extensive and truthful testimony at her court marshal. 13 If you look at the document that's appended to the 14 government's reply, you will, in fact, see the 15 painstaking detail with which Ms. Manning accounted for 16 each instance of her conduct. 17 names, Your Honor. 18 Ms. Manning gave I mean down to file So if the government intends to question her 19 about any of the same matters, which the reply seems to 20 suggest they do, she's sort of faced with the choice of 21 reiterating her previous answers, which the government 22 appears not to accept, or being untruthful, which she 23 refuses to do. 24 25 Ms. Manning has not given and would not give untruthful testimony. However, since her prior UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 13 of 32 PageID# 368 13 1 testimony made clear that she acted alone and since we 2 have been advised that she is herself not a target in 3 this investigation, it would appear that the government 4 may harbor an interest in undermining her previous 5 testimony since it doesn't inculpate anyone else who 6 might be a target. 7 THE COURT: Aren't you getting back where we 8 were just a minute ago? 9 There's no way of knowing this. 10 speculation. 11 You're saying if or what. This is just entire I can't base a ruling on that. MS. METZLER-COHEN: Okay. Judge, I think 12 I -- I think it's important for me to make the record 13 of the argument here. 14 THE COURT: So if you'll -Well, you have that in your 15 papers, but go ahead and make your argument quickly. 16 It seems to me we're right at the same ground we were 17 before. 18 19 MS. METZLER-COHEN: I will attempt to be clear and quick. 20 21 Okay. THE COURT: Well, that is, we can't base a decision on that. 22 MS. METZLER-COHEN: 23 THE COURT: I mean, you can conjure up 24 anything, or I could too. 25 going to happen or not? UNDER Rhonda F. Montgomery Okay. Who knows whether that's SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 14 of 32 PageID# 369 14 1 MS. METZLER-COHEN: Well, Judge, there are 2 questions as to the subpoena as a whole that I think 3 deserve to be heard and are ripe for review today. 4 you know, if in case the subpoena has been propounded 5 with an interest in either coercing perjury or 6 attempting to build a case against Ms. Manning for 7 perjury, you know, in order to undermine her as a 8 potential defense witness, since the immunity order 9 can't immunize that potential perjury, she retains an 10 So, interest in not testifying. 11 I do also want to clarify for the record that 12 the government correctly repeated my statement of the 13 law with respect to foreign prosecution. 14 absolutely the case that the Supreme Court ruled in 15 Balsys, which both of us cite, that the immunity order 16 and immunity orders coextensive with the Fifth 17 Amendment privilege and that that privilege extends 18 only to domestic and not foreign prosecution. 19 suggesting that it does extend to foreign prosecution 20 but that because the immunity order does not extend to 21 foreign prosecution, it does create an unresolved 22 problem for Ms. Manning, which I think is worth 23 considering. 24 25 It is I am not With respect to constitutional rights, it appears to be the government's position that this UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 15 of 32 PageID# 370 15 1 challenge is premature. 2 that we can't make arguments today about grand jury 3 questions that we haven't yet heard, there are other 4 issues with respect to the subpoena generally, again, 5 that can be heard today. 6 While we, of course, agree As mentioned, Ms. Manning has disclosed to 7 the government everything she can about her involvement 8 in the 2010 disclosures for which she took full 9 responsibility. If the government wishes to question 10 her further about these issues, as I said before, we 11 have concerns about a perjury trap. 12 But maybe they have interest in asking her 13 about subjects beyond those disclosures, and that would 14 be very concerning because Ms. Manning has no 15 information material or relevant to any other violation 16 of federal law. 17 that the government wants to ask questions of 18 Ms. Manning that do not implicate any crimes. 19 would be information to which the grand jury is not 20 entitled because it would be an obvious violation of 21 her First Amendment expressive and associational 22 rights. 23 So we can only conclude at that point That As we discussed in our pleadings, there is a 24 long and well-documented history with grand juries 25 being used for improper purposes, specifically to UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 16 of 32 PageID# 371 16 1 disrupt communities of activists and journalists who 2 are engaged in lawful and constitutionally valuable 3 activities. 4 order to assert the constitutional rights of 5 journalists or other third parties but to ensure that 6 the issue of the grand jury's purpose here and the 7 issue of this particular subpoena here is duly 8 considered. 9 Ms. Manning is not bringing this up in The administration has been very publicly 10 hostile to the press. 11 been very publicly hostile to Ms. Manning. 12 ranking government officials have called her out by 13 name and called for her reincarceration and expressed 14 displeasure at her release. 15 pressure has been brought to bear on issues that are 16 implicated by this grand jury with respect to the 17 press, and tremendous executive pressure has been 18 brought to bear more specifically on Ms. Manning, who 19 is the subject of this individual subpoena. 20 This administration has also The highest So tremendous executive So we think it makes sense for Ms. Manning to 21 be worried about a possible improper motive for this 22 subpoena in general. 23 ripe today. 24 25 We believe that that issue is We have, of course, expressed our concerns about the potential for a perjury trap and our concerns UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 17 of 32 PageID# 372 17 1 that this grand jury subpoena is being used to 2 undermine Ms. Manning potentially as a witness, put her 3 in jeopardy of contempt and reincarceration, or to go 4 on a fishing expedition to constitutionally protected 5 activity. 6 As the government noted, there is a 7 presumption of regularity that attaches to grand jury 8 proceedings. 9 compelling need for judicial intervention into grand There is -- either must be a real 10 jury proceedings, but we think that's present here. 11 Because once evidence of abuse has been introduced, it 12 is the prosecution that must demonstrate that 13 regularity. 14 Ms. Manning, of course, is not in a position 15 to introduce highly specific concrete evidence of 16 abuse. 17 been subject to, it is absolutely reasonable for her to 18 bulk at being compelled to cooperate with a government 19 that has been actively and publicly hostile to her. 20 believe that the prosecution should be called upon to 21 establish the regularity, not simply this grand jury 22 proceeding but specifically of this subpoena. But given the kind of attention that she has We 23 The electronic surveillance motion we believe 24 is also ripe for review but might also be appropriately 25 revisited after questioning before the grand jury. UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 18 of 32 PageID# 373 18 1 Unlawful electronic surveillance, if used to propound a 2 subpoena or any question before a grand jury, would 3 constitute just cause excusing testimony. 4 of covert surveillance is rarely well positioned to 5 prevent overwhelming evidence of that surveillance, and 6 Ms. Manning is no exception. 7 The subject That is why the law is well settled that 8 making even an allegation or at most, I think, in this 9 circuit a colorable claim of electronic surveillance is 10 sufficient to trigger the government's obligation to 11 either affirm or deny that electronic surveillance took 12 place. 13 them, and we think it's worth noting that the 14 government did not make such a denial in their reply. 15 This is not a particularly onerous task for The government's argument here on the law is 16 a little misplaced. 17 to object to any electronic surveillance that would 18 have led to -- any unlawful electronic surveillance of 19 her that would have led to this subpoena or to 20 questions that may occur before it. 21 Ms. Manning certainly has standing The case that is cited by both Ms. Manning 22 and the government, U.S. v. Apple, makes clear that a 23 cognizable claim -- and this is a quote from the 24 case -- need be no more than a mere assertion but must 25 have a colorable basis. UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 19 of 32 PageID# 374 19 1 While this circuit may overwhelmingly find 2 that government denials of electronic surveillance are 3 sufficient to defeat this kind of claim, making a 4 colorable claim suffices to trigger the government's 5 obligation. 6 make the requisite canvas of agencies and state their 7 unambiguous denials for the record. 8 9 So the government would be expected to So, Your Honor, all we're asking for here is a very simple answer. You know, to start with, if -- 10 you know, if you ask the government now, "Are you aware 11 of any electronic surveillance," and if he says, "Yes, 12 we're done," you know, we know and we can go from 13 there. 14 do is make the relevant inquiries of the federal 15 agencies, and either they say yes, this kind of 16 surveillance happened, or no, it didn't. 17 If he says no, then all the government has to Your Honor, we also included a motion to 18 instruct the grand jury to which the government 19 objects. 20 noncontroversial -- that the grand jurors are entitled 21 to fully understand not only the full scope of their 22 rights and power, but also the rights afforded to a 23 witness called to testify before them. 24 nothing in our set of proposed grand jury instructions 25 that is legally questionable. It is our position -- and I think it is UNDER Rhonda F. Montgomery There is Each proposed SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 20 of 32 PageID# 375 20 1 instruction is a simple statement of fact regarding the 2 powers of the grand jury or the rights of the witness. 3 In that the government painted such a plainly 4 educational document as in some way controversial is 5 perplexing and does not necessarily bode well for the 6 grand jury's independence. 7 Your Honor, there is also a motion for 8 disclosure of prior statements that I do want to 9 clarify in light of the government's response to us. 10 The government has objected to our request for 11 disclosure of prior statements based on the admittedly 12 stringent rules around disclosing grand jury testimony. 13 They are correct also that there is no prior grand jury 14 testimony to disclose. 15 respect to the law on which this request is based, I am 16 arguing here by analogy. 17 testimony or other statements that are not bound by 18 Rule 6 would be significantly less tightly controlled 19 than grand jury testimony. 20 I want to clarify that with Presumably, nongrand jury In preliminary discussions with the 21 government, counsel was given to understand that the 22 government believes Ms. Manning may have made prior 23 statements that were either incorrect or in some way at 24 variance with her prior statements or testimony. 25 Ms. Manning, of course, has raised concerns that this UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 21 of 32 PageID# 376 21 1 grand jury may be working toward eliciting 2 contradictory statements or worse, and her perceptions 3 have not been helped by the public resentment that has 4 been expressed by other actors in the government. 5 one way in which the government might make a show of 6 good faith here would be to disclose whatever prior 7 statements they seem to be relying on to justify the 8 subpoena. So 9 It is in no way a violation of grand jury 10 secrecy to reveal to a witness statements that they 11 themselves are said to have made. 12 many collateral benefits, including clarifying 13 authorship and attribution and refreshing the witness' 14 recollection. 15 such disclosure, and there does appear to be law both 16 encouraging and compelling it. 17 Doing so could have There is certainly no law that forbids The final component of our omnibus motion 18 concerns our motion to disclose ministerial documents, 19 and Ms. Freeman will speak to that now. 20 Your Honor. 21 MS. FREEMAN: I thank you, Thank you, Your Honor. Just 22 briefly, I would reincorporate everything that I said 23 regarding our motion to unseal in that I think that the 24 law that applies in terms of determining what is a 25 matter that occurs before the grand jury also applies UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 22 of 32 PageID# 377 22 1 to this when you're looking at the analysis under 2 Rule 6(e). 3 Circuit but from circuits across the country that 4 documents reflecting the commencement and termination, 5 reflecting that the grand jury has been -- a term has 6 been extended, records of impanelment to include 7 manuals, procedures, and the impanelment instructions, 8 that none of those issues have been held to be matters 9 occurring before the grand jury. Cases are clear not only from the Ninth It would not affect 10 deliberations of a grand jury for us to know them. 11 would not potentially undermine the integrity of the 12 investigation or any witness' testimony to the grand 13 jury itself. 14 15 THE COURT: MS. FREEMAN: 17 THE COURT: MS. FREEMAN: It was impaneled in the Judge, we do not have any of the documents reflecting the -- 21 22 No, sir, we do not. courtroom; wasn't it? 19 20 You have available the impanelment of this grand jury. 16 18 It THE COURT: Every grand jury I've impaneled is done here in the open courtroom. 23 MS. FREEMAN: Understood, Judge. 24 something that we would request access to. 25 that the -UNDER Rhonda F. Montgomery It is It appears SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 23 of 32 PageID# 378 23 1 THE COURT: I don't have it. 2 the clerk has it somewhere. 3 around here; isn't it? 4 in secret. 5 MS. FREEMAN: I don't know if There is some record of it We don't impanel the grand jury Judge, I think the issue is 6 that the -- what different courts and what different 7 clerks -- I think that it is understandable the clerks 8 would be acting in abundance of caution in refusing to 9 disclose some of those documents. 10 It's our position that things, such as an impanelment -- 11 THE COURT: While they're here, that's a 12 matter of information they may not give out, as to who 13 in particular is sitting on a grand jury. 14 MS. FREEMAN: Yes. We would not be 15 requesting identifying information of who those grand 16 jurors are. 17 affecting the form and function, the mode, if you will, 18 of operation of this particular grand jury, not 19 regarding persons specifically on the grand jury, not 20 regarding witnesses who have testified before it, but 21 simply the -- what we would call the ministerial 22 documents. 23 24 These would just be documents basically THE COURT: That's impaneling the grand jury and the termination of the grand jury when it's over. 25 MS. FREEMAN: Yes, sir. UNDER Rhonda F. Montgomery So that would be the SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 24 of 32 PageID# 379 24 1 request. It's not for any of the private information. 2 THE COURT: 3 MS. FREEMAN: 4 All right. 5 MR. TRAXLER: 6 Your Honor, I'd like to pick up where the All right. I understand. Thank you, Judge. Mr. Traxler. Thank you, Your Honor. 7 Court began, and that is that Ms. Manning's arguments 8 today are premature. 9 been no questioning yet. As Your Honor noted, there has Ms. Manning has not appeared 10 before the grand jury. 11 the questions that might be asked would infringe upon 12 the rights that she cites in her papers. 13 explained in our submission, such premature arguments 14 should be rejected. 15 on a question-by-question basis. 16 So she can only speculate that As we They should be normally answered That said, Your Honor, we did argue 17 alternatively that this motion could be denied on its 18 merits. 19 inclined, to deny the motion on its merits now. 20 submit that the advantage of doing that would be it 21 would hopefully reduce the number of times or eliminate 22 the parties coming up here during the actual grand jury 23 questioning to have the Court rule on various issues 24 that have already been teed up in the papers. 25 We would, in fact, urge the Court, if it's so We So with that, I would like to address the UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 25 of 32 PageID# 380 25 1 merit arguments that Ms. Manning makes in her papers. 2 First would be her Fifth Amendment claim. 3 government argued in its papers, under Kastigar 4 (phonetic), there are no Fifth Amendment concerns here. 5 Ms. Manning has received full use and derivative use 6 immunity for her testimony by both this Court and the 7 Department of the Army. 8 eliminates any Fifth Amendment concerns. 9 As the Under Kastigar, that The next argument Ms. Manning makes is a 10 First Amendment claim, and the government submits, as 11 we argued in our papers, that she has not asserted any 12 legitimate First Amendment interest that could be 13 infringed upon. 14 We submit, Your Honor, that the Supreme 15 Court's decision in Branzburg v. Hayes forecloses 16 Ms. Manning's arguments. 17 that reporters had to testify in front of the grand 18 jury even if it required them to disclose their 19 sources. 20 First Amendment privilege to not have to go before the 21 grand jury because disclosing those sources would have 22 an inhibiting effect for reporters to recruit sources 23 and it would diminish the flow of news. 24 Court rejected that argument. 25 speculative. There the Supreme Court held The reporters argued that they should have a F. It held it was We submit, Your Honor, that Ms. Manning UNDER Rhonda The Supreme Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 26 of 32 PageID# 381 26 1 has an even weaker claim than the reporters had in 2 Branzburg. 3 Even assuming the questioning in the grand 4 jury were to touch on the disclosures from 2009 and 5 2010, Ms. Manning had no First Amendment rights with 6 respect to those disclosures. 7 in its papers, Ms. Manning was a government insider who 8 signed a nondisclosure agreement, and under 9 well-established precedent, that means that she had no 10 As the government noted First Amendment rights. 11 Ms. Manning talks about the concerns that the 12 questioning would have for journalists. 13 the outset: 14 speculating that at some future date the grand jury may 15 return an indictment that she speculates might violate 16 the First Amendment. 17 Your Honor, for a fact witness to refuse to testify in 18 front of the grand jury. 19 jury process would break down if every fact witness who 20 came in front of the grand jury could speculate that 21 the crimes being investigated might violate someone 22 else's constitutional rights. 23 make that argument. 24 25 I'll say at Certainly, Ms. Manning seems to be That's not a legitimate basis, If it was, the whole grand She has no standing to Next, Your Honor, Ms. Manning argues that the grand jury subpoena was improperly motivated, and we UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 27 of 32 PageID# 382 27 1 emphasize to the Court that Ms. Manning's speculations 2 are exactly that. 3 cases that we cited in our papers show, speculation and 4 conjecture is not enough to rebut the long-standing 5 presumption that the grand jury acts reasonably and 6 properly when it issues a subpoena. 7 They are mere speculations. As the Your Honor, I want to address in particular 8 one thing that we heard throughout counsel's argument, 9 and that is the speculation that the government issued 10 a grand jury subpoena just so it could catch 11 Ms. Manning in a so-called perjury trap. 12 emphasize to the Court that's just speculation as to 13 what the government's motives are. 14 for that. 15 Again, we There's no basis We also submit, Your Honor, that that 16 argument is premature. 17 perjury trap are properly raised if there was some 18 charge for perjury at a future date. 19 justification for a fact witness to refuse to go in 20 front of the grand jury. Any concerns about an alleged It's not a 21 Finally, Your Honor, we submit that 22 Ms. Manning has not provided the Court with a colorable 23 basis for believing that the government has -- I'm 24 sorry -- that she might have been subjected to unlawful 25 electronic surveillance. As the Court noted in its UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 28 of 32 PageID# 383 28 1 papers, there's certain threshold requirements that 2 Ms. Manning has to meet to even trigger the 3 government's obligation to affirm or deny or generally 4 respond to her allegations. 5 with something more than mere suspicion that she might 6 have been subjected to unlawful electronic 7 surveillance. 8 9 She has to come forward If you read her papers, she clearly has not done that. You can tell by the way she couches her 10 argument throughout her papers, that she has reason to 11 believe, that she believes she might have been subject 12 to unlawful electronic surveillance. 13 has no idea, and she is using this statute improperly 14 as an attempt to get discovery from the government. 15 Therefore, the government submits that Ms. Manning is 16 not entitled to even that threshold affirmance or 17 denial from the government about whether there is any 18 such surveillance in this case. 19 The truth is she There is one last topic I want to touch on, 20 and that's the ministerial documents issue that counsel 21 raised just a moment ago. 22 Judge Ellis noted in the decision we cited in our 23 papers, the Fourth Circuit has not adopted the approach 24 of the cases that Ms. Manning cites. 25 Ms. Manning, if there is anything done in open court, UNDER Rhonda F. Montgomery I would emphasize that, as We submit that SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 29 of 32 PageID# 384 29 1 should figure out on her own what's available. 2 not available because it was not done in open court, we 3 submit she should not receive those materials. 4 If it's There is no right of access to the grand jury 5 proceedings. 6 or no need or has not provided any justification or 7 explained why she needs those documents. 8 that, we submit to the Court that the general rule of 9 secrecy should apply here and she should not receive 10 any documents relating to the grand jury proceedings 11 that have not otherwise already been done in open 12 court. 13 Ms. Manning has provided no justification In light of So with that, Your Honor, we would rest on 14 our papers for the rest of the arguments. 15 that the Court should deny the motion to quash. 16 bedrock principal, a long-standing principal in our 17 jurisprudence that the grand jury is entitled to every 18 person's evidence. 19 different. 20 in the grand jury. 21 testify already fully and truthfully in front of the 22 grand jury. 23 derivative use testimony -- I'm sorry -- immunity in 24 connection with her testimony. 25 citizen in this nation, Ms. Manning should be required F. It's a We submit that Ms. Manning is no She has been lawfully subpoenaed to testify The Court has ordered her to She's been fully immunized with use and UNDER Rhonda We submit Montgomery Like every other SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 30 of 32 PageID# 385 30 1 to appear before the grand jury pursuant to the 2 subpoena and to testify fully and truthfully. 3 submit that there is no reason to treat Ms. Manning 4 differently than we would any other civilian in 5 responding to a grand jury subpoena. 6 Thank you, Your Honor. 7 THE COURT: All right. We Well, as I've 8 listened to the arguments here, it's almost like 9 listening to lawyers discussing a case that they're 10 looking into and finding out what issues are involved. 11 This whole thing is just really speculation about what 12 may or may not happen. 13 premature except your issue of the Fifth Amendment. 14 find that you have no rights in that regard because of 15 the immunity order that I've entered, and you have one 16 from the military. 17 Amendment implication here that's been represented to 18 me or that I can even get my hands around to rule on. 19 There just isn't anything. 20 Most of this is really I also find that there's no First There's no evidence presented of any improper 21 motive. 22 might not be the motive. 23 front of me that would require me to rule on it. 24 25 I You've raised questions about what might or I don't have anything in Also, your motion to instruct the grand jury, I see no need to instruct the grand jury. UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 31 of 32 PageID# 386 31 1 Your motion for disclosure of prior 2 statements, that's going to be denied as well. 3 Disclosing the ministerial documents here, I don't see 4 any relevancy that's been presented to me that would 5 require that at all. 6 7 So with that said, your motion to quash the subpoena will be denied. 8 9 10 Now, I don't know if you want to set a time frame on this unsealing or whatever it is, time to respond to it. 11 I mean, I'll deal with that. MR. TRAXLER: Your Honor, the government 12 would request two weeks to prepare a response. 13 mentioned, we still need to receive the papers from 14 Ms. Manning and then time to formulate a response. 15 THE COURT: All right. Like I Why don't you all get 16 together on that. 17 notice it to a Friday, and I'll deal with it when you 18 get ready to argue it again. 19 20 Two weeks sounds reasonable. MR. TRAXLER: We will. Just Thank you, Your Honor. 21 MR. KROMBERG: If I may, Your Honor. Our 22 time before the grand jury is tomorrow at 9:30. 23 the Court -- we just let the Court know that so in case 24 these issues recur tomorrow or new issues come up 25 tomorrow, that's when we're expecting to be before the UNDER Rhonda F. Montgomery We ask SEAL OCR-USDC/EDVA (703) 299-4599 Case 1:19-dm-00003-CMH Document 22 Filed 03/19/19 Page 32 of 32 PageID# 387 32 1 grand jury. 2 THE COURT: Well, I hope that I have dealt 3 with enough of them that we won't have any problems 4 like that. If not, I'll be around. 5 MR. KROMBERG: 6 THE COURT: 7 Thank you, Your Honor. All right. We'll adjourn until tomorrow morning at 9:30. 8 ---------------------------------Time: 10:15 a.m. 9 10 11 12 13 14 15 16 17 18 19 20 21 I certify that the foregoing is a true and 22 accurate transcription of my stenographic notes. 23 24 25 Rhonda F. Montgomery, CCR, RPR UNDER Rhonda F. Montgomery SEAL OCR-USDC/EDVA (703) 299-4599