Good explanation of what Fitzgerald's letter to Waxman meant

[dancingme]

From FireDogLake:

"-This is where things might get good. You may recall that there is some significant information that came to the investigation outside of the presence of the grand jury and not as a direct result of a grand jury subpoena. So, even if the material was later presented to the grand jury, if you knew of its existence from another source you could ask for it. Shorter version- you can't ask for "everything you presented to the grand jury but got from a none grand jury method", but you can ask for "the notes of that interview I know you had with so and so before the grand jury was empanelled." See the difference? It's a little subtle, but very significant.

Let me give you an example, we know (because it was in the newspapers) that PatFitz interviewed the President and Vice-President outside the presence of the grand jury. IIRC there was no GJ subpoena. I assume, that the focus of the interview was not whether or not Libby had committed perjury, but rather the possible "underlying crimes" (OT- somewhere in the vast FDL post reservoir is a post from me explaining just how silly the "no underlying crime" canard really is. We may see it soon) so although "non public" the information would not at this juncture be related to a "law enforcement matter" and therefore would not fall under this DOJ policy-which BTW is ONLY a policy and does not have the effect of a rule of law and does not trump a Congressional subpoena-if Rep. Waxman or anybody else on the Hill was in the mood to show a heavy dose of testosterone.

don't know how many FBI interviews and other interviews of this sort were conducted outside the presence of the grand jury and not in connection with a grand jury subpoena, but I am having a hard time thinking of a reason why DOJ would be justified in prohibiting PatFitz from briefing Congress about the existence of such material especially since some of it may never even have been presented to the GJ.

There may also be documents that were turned over in advance of the empanelling of the GJ or turned over voluntarily not in connection with a GJ subpoena. Do you see where I am going with this?

Rule 6(e)(3)(E)(i) Allows for the unsealing of grand jury material for use "preliminary to or in connection with a judicial proceeding"
In order to do that a motion would be made before Judge Walton and there would have to be a showing that Congress had a "particularized need" for the GJ information and that it would be used preliminary to or in connection with a judicial proceeding. There is prior case law, for example Halderman v. Sirica, and a bunch of "in re grand jury…" cases that hold that a Congressional investigation in furtherance of a possible impeachment is indeed a judicial proceeding."

http://www.firedoglake.com/2007/03/15/looseheadthoughts-rule-6e/#more-7832

[SharonRB]

1. I read it at FDL and it was a great post

Really helped clear things up.