THE UNITEQ STATES DISTRECT COURT FOR THE DISTRICT OF COLUMBIA CABLE NEWS NETWORK, INC., CA NO: 17?116? Plaintiff, Washington, 0.C. January 22, 2018 vs. 3:49 p.m. FEDERAL BUREAU OF INVESTEGRTION, Defendaat. unc- . an an. TRANSCRIPT CLOSED HEARING HELO BEFORE THE HONORABLE JUDGE BOASBERG UNETED STATES DISTRICT JUDGE APPEARANCES: Carol Federighi, Esq. Marcia Barman, Esq. Brett Schumate, Esq. Michael Breeben, Esq. Aarmn Zebley, Esq. Adam ?ea, Esq. Court Reperter: Lisa A. Moreira, RDR, CRR Official Court Reporter 0.8. Csurthouse, Room 6718 333 Constitution Avenue, NW DC 20001- 252?354~318? Proceedings xaccrded by mechanicai stenography; transcript produced by computerwaided transcriptic? THE COURT: Okay. Welcome, everybody. This is case of 17w1167, Cable News Network, Inc. vs. Federal Bureau of Investigation and consolidated cases therewith, which are 17?1175, 17?1189, 17?1212, and 17w1830. We?re present in ceurt. The courtroom has been sealed and made secure. I would ask ceunsel the government to identify themselves for the record at the m? yes, and pieese at the podium. MS. FEDERIGHI: Carol Federighi from the Justice Bepartment on behalf of defendants, Year Honor, and I have Marcia Berman as well as Brett Shumate. THE COURT: Okay. MR. DREEBEN: Your Honor, Michael Dreeben from the Special Counsel?s Office, and with me is Aaron Zebley, Deputy Special Counsel, and Adam Jed, who is an Assistant Special Counsel. THE COURT: All right. Thank you very much. Now, the reason we are here is that I have asked for a proffer from a member of the Special Counsel?s legal team to give some more detail in regard to the government's claimed Exemption 7A in this case. 7A, again, protects information t0 the extent that preductien ef that information ceuld reasonably be expected to intetfere with enforcement that are pending or reasonably anticipated, and although I?ve reviewed the declaration from David Archey, which was an in camera ex parte declaration, I believe that more specific information is still required to explain how production of the memos at issue could interfere with Special Counsel proceedings. So I would ask you, Mr. Dreeben, if you're prepared to make that proffer? MR. DREEBEN: Yes, Your Honor. Thank you. We are prepared to proceed by ptoffer to provide the Court with the information necessary to understand the government's invocation of Exemption 7A in this circumstance. My role in the Special Counsel's Office is as counselor to the Special Counsel. in that capacity I have been involved in all phases of the investigation, including the matters that I am going to discuss today, and that knowledge consists not only of my personal participation in the investigation, but also through consultations with the agents and the prosecutors who are specifically assigned to handle those matters. As background, on May ll, 2017, the acting Attorney General appointed, as Special Counsel, Robert Mueller to conduct an investigation that was defined in the acting Attorney General?s order. That investigation entailed exploring the mattets that Former FBI Director Comey had detailed in a heating on March 20th in the House Committee appearance that he made as weii as matters that arose from or may arise from that investigation and matters that are covered by 28 CFR 600.4. That section of the Special Counsel Regulations authorizes the Special Counsei to look into matters that would interfere with the investigation being conducted, including obstruction of justice. Before the appointment of the Special Counsel on May 17th, the FBI had opened an investigation into obstruction of justice. That investigation entailed matters that were covered in the Comey memoranoa, which explored and recorded Mt. Comey's recollections of meetings, including one-on~one meetings with the President of the United States. In those meetings, events occurred that led the FBI to conclude that an investigation was appropriate under its authority to consider matters such as obstruction of justice. The subject of that investigation would be defined by reference to the United States Attorney?s manual's ,consideration of what is a subject of an investigation. That is a person whose conduct is within the scope of the investigation. In this instance, a person whose conduct is within the scope of the investigation is the President of the United States. The Comey memoranda record Mr. Comey's *mlmrecollections of one?on-one interactions with the President of the United States. As part of the Special Counsel?s investigation, Special Counsel is attempting to determine the facts that transpired in and surrounding those meetings. In any investigation of this kind, the recollections of one witness, if disclosed to another potential witness, have the potential to influencing, advettently or inadvertently, the recollections of that witness. Accordingly, investigative materials, such as detailed witness statements like this, are typically held in confidence through the course of the investigation and any ensuing proceedings to ensure that all witnesses provide truthful evidence based on their own recollections and not on any inadvertent or advertent tailoring or inflsenoe from other witness statements. in the ease of the Comey memorande, Director Comey did testify in open Senate proceedings on dune 8th as to some of the events that are captured in his prior contemporaneously recorded memoranda. But those memoranda ere also far more detailed in many instances than the matters that Mr. Comey revealed either in his statement for the record or in his oral testimony before the Senate; and even in those instanoes in which Mr. Comey's memos mirror the language and content that he provided in open session, it is still of utmost importance to the investigation that those matters remain confidential. A witness who knows that a contemporaneous record was made of particular statements is aware that the reliability of that account is enhanced merely by virtue of the fact that it was recorded, and an individual who is seeking to shape or mold his own statements around those of others thereby acquires an advantage in doing so that he would not otherwise have. At the same time, the Special Counsel's Office must necessarily rely heavily on its ability to corroborate the details of the encounters between Mr. Comey and the President by turning to other sources of evidence. The more that other witnesses are aware of the details of what is in the memoranda and is not in the memoranda, the greater the risk that they're providing information that will assist the Special Counsel in completing the investigation and getting to the truth would be frustrated or impeded. Accordingly, Special Counsel's Office believes that the disclosure of the Comey memoranda at this time would reasonably be expected to interfere with enforcement proceedings. THE COURT: All right. Thank you very much, Mr. Dreeben. i believe that that explains in more detail the government's position regarding Exemption 7A and is helpful to me in making my determination of whether that exemption applies. Thank yau. MR. DREEBEN: Thank yam, Your Honor. (Whereupon the hearing was conciuded at 3:59 CERTIFICATE OF OFFICIAL COURT REPORTER E, LISA A. MOREIRA, CRR, do hereby certify that the above and foregoing constitutes a true and accurate transcript at my stenegraphic notes and is a full, true and samplete transcript of the proceedings to the best of my ability. Dated thig 18th day of April, 2019?70{J/ig~mfi t? Mia??: Officiai Court Reporter United States Courthouse Room 6718 333 Constitution Avenue, NW Washington, DC 20001