NAF Response letter

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October 5, 2015

Via ECF

The Honorable William H. Orrick United States District Court Northern District of California 450 Golden Gate Avenue San Francisco, CA 94102

Re: National Abortion Federation v. Center for Medical Progress, et al. Case No. 3:15-cv-03522

Dear Judge Orrick:

NAF respectfully submits this response to a letter submitted by David Daleiden to the Court on October 2. (Dkt. No. 152.)

In his letter, Daleiden states his intent to violate this Court’s TRO and disclose NAF Confidential Information he has thus far refused to turn over to NAF or to this Court to a House Subcommittee by this Wednesday “unless this Court instructs otherwise.” (Id. at 2.) Wednesday – the day Daleiden has unilaterally selected for violating the Court’s TRO – is the Court-ordered deadline for production of documents in response to NAF’s discovery requests. (See Dkt. No. 145 at 1.) Counsel for Daleiden informed counsel for NAF of Daleiden’s intent to violate the Court’s TRO on a phone call minutes before the letter was filed. In that call, counsel for Defendants also indicated they were unlikely to produce to NAF this Wednesday all of the information covered by the TRO (i.e., the very same information that Daleiden is now telling the Court he is going to disclose to the Subcommittee on the same day). Daleiden’s counsel also declined to identify the material covered by this Court’s TRO that is responsive to the Subcommittee’s subpoena (or any other subpoena), and refused to commit to a date certain for doing so.

Daleiden’s stated intent to violate this Court’s TRO is an extraordinary affront to this Court and to this legal proceeding, and the Court should make clear that any such unilateral action is prohibited. There is no serious question that his anticipated disclosure of NAF Confidential Information is barred by this Court’s Orders. The Court’s TRO expressly prohibits Daleiden and his cohorts from disclosing NAF Confidential Information to “any third party.” (Dkt. No. 15.) That TRO was entered over Daleiden’s specific argument that

Case 3:15-cv-03522-WHO Document 154 Filed 10/05/15 Page 1 of 7

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he would be prevented from providing information to “legislative and executive investigators,” including a “subcommittee conducting a legislative investigation.” (Dkt. No. 22 at 25.) Since the TRO was entered, Daleiden has twice consented to its extension. (Dkt. Nos. 34, 83.) He represented to this Court that he was “amenable to extending the Court’s temporary restraining order to remain in effect through the Court’s final disposition on NAF’s preliminary injunction motion.” (Dkt. No. 34 at 2.) And most recently the Ninth Circuit rejected Daleiden’s collateral attack on the TRO and ordered Daleiden to proceed with discovery. (Dkt. No. 140.)

It is precisely because the Court’s TRO prohibits disclosures to anyone that Daleiden, CMP, and Biomax filed a motion to clarify the TRO “as it relates to any subpoenas” received from government entities. (Dkt. No. 61.) Daleiden’s then-counsel represented numerous times that Daleiden would continue to honor this Court’s Orders as written until that motion is resolved. Thus, when CMP was served with the Subcommittee’s subpoena, Daleiden’s counsel stated that Daleiden would “await the Court’s ruling on the pending motion to clarify re subpoenas before providing materials covered by the TRO in response to this subpoena.” (See Attachment A.) The lawyer who made these promises on Daleiden’s behalf has now withdrawn. (Dkt. No. 141.) Daleiden, apparently, has changed his mind.

The only reason cited by Daleiden for his stated intent to violate this Court’s Orders is that he “believes himself compelled” to respond to the Subcommittee’s subpoena because he received a letter instructing him to comply with the subpoena notwithstanding this Court’s TRO. (Dkt. No. 152 at 1.) There are multiple reasons why Daleiden’s “belief” is incorrect as a matter of law.

As an initial matter, the letter is not even addressed to Daleiden or his counsel. It is addressed to counsel for “The Center for Medical Progress (‘CMP’)” (Dkt. No. 152-2 at 1). The Subcommittee itself makes that point crystal clear. (See id. (letter “concerning the subpoena duces tecum issued to . . . The Center for Medical Progress”).) The letter sets no deadline for compliance, and does not even mention, much less threaten, contempt proceedings. It is CMP’s responsibility to deal with the subpoena, and CMP, which as of last Monday is separately represented in this matter (Dkt. No. 144), has remained silent thus far. David Daleiden is not compelled to do anything in response to this letter.

Second, before a House Subcommittee subpoena may be enforced, House rules require the authorization of the full House, and there has been no such authorization here. See Rules of the House of Representatives, Rule XI, cl. 2(m)(3)(C) (114th Congress, Jan. 6, 2015) (“Compliance with a subpoena issued by a . . . subcommittee . . . may be enforced only as authorized or directed by the House.”) (emphasis added). The Supreme Court has made very clear that committees of Congress must strictly conform to their own rules in obtaining evidence. Yellin v. United States, 374 U.S. 109, 114 (1963) (holding that “a legislative committee has been held to observance of its own rules”); id. at 124 (House subcommittees


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must be “meticulous in obeying [their] own rules”); see also Watkins v. United States, 354 U.S. 178, 187 (1957) (same). The Fifth Circuit, for example, dismissed an appeal brought by House Subcommittee chairmen who sought access to material protected by a federal court protective order because they had failed to receive full House authorization to do so in compliance with the precursor to Rule XI, cl. 2(m)(3)(C). In re Beef Industry Antitrust Litig., 589 F.2d 786, 790-91 (5th Cir. 1979) (“Beef Industry II”). The Fifth Circuit reasoned that “Congressional committees are themselves the offspring of Congress; they have only those powers authorized by law; they do not have an unlimited roving commission merely by virtue of their creation and existence to ferret out evil or to uncover inequity.” Id. at 787-88. Because the Subcommittee chairmen had failed to seek full House authorization to intervene in a pending federal court case, as required by its own rules, the Fifth Circuit left undisturbed the district court’s order refusing to allow access to confidential documents covered by a federal court protective order. Id. at 791; In re Beef Industry Antitrust Litig., 457 F. Supp. 210, 211 (N.D. Tx. 1978) (“Beef Industry I”). Thus, Daleiden’s “belief” that he is compelled to do anything in response to the letter is flat wrong as a matter of law. Because there has been no authorization from the full House to enforce the subpoena, the Subcommittee has no legal authority to enforce it.

Third, Daleiden’s “belief” is that a Subcommittee of Congress has the legal authority to interfere in a pending federal court case by telling a litigant that it can violate a federal court order is contrary to law. “The Federal Courts and the Congress have two different roles under our Constitution.” Beef Industry I, 457 F. Supp. at 211. “It is the intention of the Constitution that each of the great co-ordinate departments of the government – the Legislative, the Executive, and the Judicial – shall be, in its sphere, independent of the others” and Congress has no authority to “pass[] the limit which separates the legislative from the judicial power.” United States v. Klein, 80 U.S. 128, 147 (1871). Thus, while Congress has the power to “pass laws which regulate the procedures in the Federal Courts” it has no “power to interfere in a particular case.” Beef Industry I, 457 F. Supp. at 212. In comments that are directly on point here, the court in Beef Industry I noted that it was “inconceivable” that a House Subcommittee “would just run roughshod over an order of Court entered in connection with the disposition . . . of a case pending in Court.” Id. at 213. Congress simply has no power under the Constitution, federal law, or its own rules, to tell a party to a federal lawsuit that it can go ahead and act in violation of a federal court order. Daleiden’s claim to the contrary is inimical to basic, fundamental principles of separation of powers. U.S. Const. Art. III, § 2 (vesting “The judicial power” in federal courts); Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

Fourth, Daleiden’s letter fails to point out clear authority that federal courts have refused to allow the subcommittees of Congress access to confidential information that is covered by a pre-existing federal court order, as here. In re Beef Industry I, 457 F. Supp. at 212; Iowa


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Beef Processors, Inc. v. Bagley, 601 F.2d 949 (8th Cir. 1979). For example, in Beef Industry I, two subcommittees of Congress issued subpoenas for information covered by a federal court protective order, then filed a motion to modify the protective order to allow the parties to respond to the subcommittees’ subpoenas. The federal court denied the subcommittees’ motion. 457 F. Supp. at 211–12. The Court held that “the orders of a Federal Court in its undertaking to dispose of cases . . . have some significance and importance” and “Congress by subpoenaing these documents is interfering with the processes of a Federal Court in an individual case.” Id. at 212. And in Iowa Beef Processors, the Eighth Circuit ruled that the district court abused its discretion by dissolving a protective order so that a party could respond to a congressional subpoena. It reasoned that the documents sought by the Subcommittee “were an important part of the subject matter underlying the lawsuit,” and lifting the order to allow disclosure to Congress “could well render moot [the plaintiff’s] claims for relief in the underlying lawsuit.” 601 F.2d at 954. Exactly the same thing is true here. Daleiden is effectively attempting to leverage an (unenforceable) letter from a Subcommittee in order to make an end run around this Court’s Orders. If he is permitted to do so, NAF will have no opportunity to ensure that material produced to Congress is in fact responsive to the subpoena before it is disclosed. Moreover, the Court will have no ability to prevent that material from broader public dissemination, which may render moot both NAF’s motion for preliminary injunction and the ultimate relief that NAF seeks in this case.

Daleiden can cite no authority that even remotely supports the notion that he can violate a federal court TRO because a House Subcommittee issued a subpoena to CMP and then wrote him a letter. Not a single one of the authorities cited either by Daleiden or in the Subcommittee’s letter deals with the situation presented here, where a pre-existing TRO prohibits disclosure of confidential information. Eastland v. United States Serviceman’s Fund, 421 U.S. 491 (1975), Daleiden’s primary authority, simply stands for the proposition that a federal court may not interfere in a pending congressional investigation by enjoining congress from issuing a subpoena. The exact opposite situation is presented here – where a litigant in federal court is construing a Subcommittee’s letter in order to violate a federal court order. And critically, there was no prior court order present in Eastland (much less a TRO protecting the privacy of individuals who have been the subject of harassment, intimidation, and violence for decades). The federal court in Beef Industry I expressly distinguished Eastland on this ground, noting that “[t]he Eastland case by the Supreme Court did not involve a court order . . . as in this case.” 457 F. Supp. at 212 (rejecting argument that Eastland “gave Congress carte blanche to do anything that it wanted to do free from any review by the Courts”).1

1 Nor do the other cases cited by Daleiden speak to the situation presented here. Exxon v. FTC, FTC v. Owens Corning Fiberglass Corp., and Ashland Oil, Inc. v. FTC all involved the question of whether the FTC – which had obtained trade secrets that it was required by


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Fifth, contrary to Daleiden’s “belief,” the correct way for a member of Congress to seek access to documents covered by a federal court order is not to write a letter to a federal court litigant informing him (incorrectly) that he may violate that order. Rather, members of Congress must seek leave to intervene pursuant to Federal Rule of Civil Procedure 24. The cases that address congressional subpoenas and the extent to which they seek confidential documents covered by a federal court order or protected by statute make this very clear. Beef Industry II, 589 F.2d at 789 (“There is no question that the procedurally correct course for the chairmen would have been first to obtain status in the suits as intervenors.”); Ashland Oil, Inc. v. F.T.C., 409 F. Supp. 297, 301 (D.D.C. 1976) (allowing subcommittee to intervene based on House resolution authorizing intervention, and court’s grant of intervention motion pursuant to Fed. R. Civ. P. 24). In order to seek intervention, however, the Subcommittee first must follow its own rules and seek House authorization to do so. See Beef Industry II, 589 F.2d at 788 (construing precursor to House Rule XI, cl. 2(m)(3)(C) to require House authorization “not only for direct enforcement of a subpoena but also in any instance when a House committee seeks to institute or to intervene in litigation”).

Intervention is no mere technicality. To the contrary, because the Court has no jurisdiction over parties not before it, “[s]ome courts have held it is reversible error to conduct any proceedings at the behest of parties who have failed to intervene formally pursuant to Rule 24.” Id. at 788. One of those courts is the Ninth Circuit. See Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977) (Kennedy, J.). Thus, if Daleiden wants to disclose information protected from disclosure from this Court’s Orders, then the Subcommittee must first follow its own rules and seek intervention in this matter. Absent intervention, this Court cannot take any action at the Subcommittee’s behest, nor can Daleiden take it upon himself to act as its messenger.

And critically, only if the Subcommittee intervenes will the Court be in a position to protect its TRO and assure itself that identifying information about NAF’s members will not be

statute to keep confidential – could be permanently enjoined from disclosing those trade secrets to Congress. None of these cases involve pre-existing suits before federal courts, or outstanding federal court orders prohibiting disclosure of sensitive information, as here. Nor do these cases endorse an “absolute” congressional subpoena power, as Daleiden claims. (Dkt. No. 152 at 1.) For instance, Exxon Corp. v. F.T.C., 589 F.2d 582 (D.C. Cir. 1978), emphasized that “[e]lection to the Congress does not give an individual subpoena power over whatever information he may happen to be interested in,” and made clear that courts should “require the FTC to take steps to ascertain the validity of a subpoena . . . before it releases data it is required by statute to be kept confidential,” and the FTC could “not release such sensitive information without verifying that the request satisfies the requirements of the controlling congressional rule.” Id. 593-594. Daleiden’s attempt to unilaterally produce all material to the Subcommittee without check or supervision by this Court flies in the face of the very cases he cites.


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made publicly available. See Iowa Beef Processors, 588 F.2d at 640-41 (obtaining congressional assurances of confidentiality to craft judicial relief with respect to confidential information); General Motors Corp. v. Finklea, 459 F. Supp. 235, 239 (S.D. Oh. 1978) (holding federal agency had no right to subpoena “identifying names and addresses” of GM employees and ordering identifying information to be withheld). As NAF has said all along, it does not oppose Defendants providing compelled responses to lawful government subpoenas. If it turns out that information covered by the Court’s TRO is responsive to the Subcommittee’s subpoena, and that “information is pertinent to the investigation and within the scope of the grant of [its] authority,” Bergman v. Senate Special Comm. on Aging, 389 F. Supp. 1127, 1130 (S.D.N.Y. 1975), then Subcommittee intervention will allow the Court to obtain appropriate assurances that its jurisdiction, and the confidentiality of NAF’s members, will remain protected. Iowa Beef Processors, 588 F.2d at 640-41; see also Watkins, 354 U.S. at 187 (Congress has “no general authority to expose the private affairs of individuals without justification”); Fed. Trade Com. v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 970 n.8 (D.C. Cir. 1980) (“[G]eneral, public distribution of information beyond Congress and its functionaries serves no legitimate legislative purpose and thus receives no constitutional protection.”). It is vitally important that the Court continue to maintain control over these Defendants and ensure the information that they stole from NAF is not spread far and wide in their ongoing, brutally dishonest smear campaign against providers of abortion care.

Last, there is simply no urgency here, as Daleiden self-servingly claims. For the reasons stated above Daleiden is not compelled to do anything in response to the letter. Moreover, the Subcommittee has no hearing regarding its investigation into Planned Parenthood on calendar. And Daleiden has already taken it upon himself to send to the Subcommittee all “requested video footage that is not prohibited from disclosure to ‘third parties’ under the Temporary Restraining Order.” (See Attachment B.) The Subcommittee has already received Daleiden’s Fed Ex package. (See Attachment C at 80-82.) On the other hand, requiring Daleiden to make the material he stole from NAF available to NAF the Court before there is any disclosure will allow the Court to fairly assess the scope and responsiveness of the material in question. In Bergman, for example, the federal court limited the scope of disclosures in response to a Subcommittee subpoena because the production the party in question planned to make was not “‘justified by a specific legislative need,’ [and] the threat of a violation of an individual’s constitutional rights, including his or her ‘personal interest in privacy,’ outweighs any right the Subcommittee might claim to the subpoenaed documents and requires that disclosure not be compelled.” 389 F. Supp. at 1130 (citing Watkins, 354 U.S. 178). The Court needs to undertake the same inquiry here.


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For the foregoing reasons, NAF respectfully submits that the Court should order Daleiden to do what it has ordered him to do, and what he has agreed to do, multiple times already: Do not disclose information covered by this Court’s TRO to “any third party.”

Sincerely,

Derek F. Foran cc: Counsel of Record


Attachment A

Case 3:15-cv-03522-WHO Document 154-1 Filed 10/05/15 Page 1 of 2

1

From: John Sauer <[email protected]>Sent: Thursday, September 17, 2015 1:32 PMTo: Foran, Derek F.; Shostak, Linda E.; Robinson, Christopher; [email protected]; 'Ed

White'; Abby SoutherlandCc: Katie Short; Breen, Peter; tom brejchaSubject: NAF v. CMP - Subpoena from House Committee on Oversight and Government ReformAttachments: Subpoena from House Committee on Oversight.pdf

Dear Counsel: Attached please find a subpoena from the House Committee on Oversight and Government Reform that we have received. As with the previous requests, we intend to await the Court’s ruling on the pending motion to clarify re subpoenas before providing materials covered by the TRO in response to this subpoena. Thank you,

D. John Sauer Principal

James Otis Law Group, LLC 231 South Bemiston Ave., Suite 800 St. Louis, Missouri 63105 (314) 854-1372 [email protected] www.JamesOtis.com Please note that email (especially unencrypted email) is not a secure means of communication. Third parties may be able to access or intercept email communications. Please contact the James Otis Law Group if you wish to cease communication via email. This communication is intended for the addressee. If you are not the addressee, we request that you (a) refrain from reading this email, (b) destroy this email, and (c) notify us that you have received this email inadvertently. This email may contain privileged communications and confidential information, and thus it may be protected by law from unauthorized use and/or dissemination. We specifically intend that this email should constitute a confidential and private communication, and no person waives any applicable privilege or protection by sending this email.


Attachment B


THOMAS MORE SOCIETY A National Public Interest Law Firm

19 S. LaSalle | Suite 603 | Chicago, IL 60603 | www.thomasmoresociety.org | P: 312.782.1680 | F: 312.782.1887

“Injustice anywhere is a threat to justice everywhere.” – Rev. Dr. Martin Luther King

September 22, 2015 The Honorable Jason Chaffetz Member of Congress Chairman, Committee on Oversight and Government Reform 2157 Rayburn House Office Building Washington, DC 20515 Dear Chairman Chaffetz: We are in receipt of the Subpoena duces tecum issued by the House of Representatives to our client, The Center for Medical Progress (“CMP”). CMP intends to comply with the subpoena, to ensure that the Committee on Oversight and Government Reform has the information it needs to further its investigation into the trafficking by Planned Parenthood and others in the body parts of aborted babies, along with other related crimes. To that end, we are now compiling and reviewing the requested video footage for production to you.

However, as we have conveyed to attorneys for your committee, CMP has been placed under a Temporary Restraining Order by the U.S. District Court for the Northern District of California. See, Exhs. A & B, attached hereto. We have respectfully contended in Federal Court, both before the Northern District of California and the Ninth Circuit Court of Appeals, that this Order is an illegal “prior restraint” that violates CMP’s right to free speech under the First Amendment to the U.S. Constitution, and its California analog. We have also respectfully contended that this Order cannot apply to subpoenas from law enforcement agencies or the U.S. Congress. At this time, we are awaiting a decision by the Ninth Circuit on our Petition for Writ of Mandamus, which seeks to vindicate the free speech rights of CMP to release these videos, which are of overwhelming public interest.

This past Friday, we were also placed under a further Order in relation to a subpoena from the

Attorney General of Arizona. See, Exh. C, attached hereto. The Court has ordered that—after the Ninth Circuit rules on our Petition for Mandamus—before providing videos prohibited from release by the Temporary Restraining Order, we must give notice to and hand over those videos to the National Abortion Federation at least ten days prior to providing the documents to law enforcement.

CMP thus intends to deliver to the Committee, as soon as practicable, requested video footage

that is not prohibited from disclosure to “third parties” under the Temporary Restraining Order. As for materials that are prohibited from disclosure by the Temporary Restraining Order, CMP’s attorneys are reviewing the relevant court orders to ensure that CMP may comply both with the court orders and the


House of Representatives’ subpoenas as fully as possible. We welcome the opportunity to discuss these issues with the Committee and/or its legal counsel.

Again, please know that CMP intends to comply with the committee’s subpoena to the fullest

extent possible, in support of its vital investigation into the trafficking of aborted baby parts and other related crimes. Please feel free contact my office if you or your staff have any further questions or concerns on this matter.

Very truly yours,

Peter Breen Counsel for The Center

for Medical Progress Enclosures


Attachment C


1 of 129CQT Rep. Jason Chaffetz Holds A Hearing On Planned Par.., sked FINAL

Sep 29 2015 18:10:45

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TRANSCRIPT

September 29, 2015

COMMITTEE HEARING

REP. JASON CHAFFETZ

CHAIRMAN

HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

WASHINGTON, D.C.

REP. JASON CHAFFETZ HOLDS A HEARING ON PLANNED PARENTHOOD'STAXPAYER FUNDING

Roll Call, Inc.1255 22nd Street N.W.Washington, D.C. 20037

Transcript/Programming: Tel. 301-731-1728Sales: Tel. 202-419-8500 ext 599

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(CORRECTED COPY)

HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOLDSA HEARING ON PLANNED PARENTHOOD'S TAXPAYER FUNDING

SEPTEMBER 29, 2015

SPEAKERS:REP. JASON CHAFFETZ, R-UTAH.

CHAIRMANREP. JOHN L. MICA, R-FLA.REP. MICHAEL R. TURNER, R-OHIOREP. JOHN J. DUNCAN JR., R-TENN.REP. KEN BUCK, R-COL.REP. JIM JORDAN, R-OHIOREP. JODY B. HICE, R-GA.REP. TIM WALBERG, R-MICH.REP. GLENN GROTHMAN, R-WISC.

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Sep 29 2015 18:10:45

RICHARDS: That's correct. That's correct.

PLASKETT: And that there has not been produced anycredible evidence that your organization has broken a singlelaw; is that correct?

RICHARDS: I believe that's true.

PLASKETT: And however, there's plenty of evidence thatMr. Daleiden and his associates have violated both federaland state laws. One example is his group obtaining tax-exemptstatus and apparently solicited charitable contributionsunder false pretense.

Ms. Richards, are you aware that the Center for MedicalProgress obtained a 501(c)(3) status, as I quote, a"biomedicine or bioengineering organization?"

RICHARDS: All I know is what I've read in the paperabout the organization.

PLASKETT: And that that in fact is a fake organizationthat filed official paperwork with the state of California tocreate a sham tissue-procurement company called "BioMaxProcurement Services, LLC."

Ms. Richards, as far as I know, illegally filing falsepaperwork with the state agency, it's illegal and against thelaw, right?

RICHARDS: It may be. I don't know. And I know there is alawsuit now pending. And I think the attorney general ofCalifornia has indicated that there will be an investigation.

PLASKETT: And so for me, for us to have this discussionwith you, without having the balance of the other side,becomes problematic. Mr. Chairman, did you want to saysomething at this point?

CHAFFETZ: Yes. I thank the gentlewoman for yielding,that she made a suggestion that Mr. Daleiden had not beenresponsive to our inquiries. I don't -- that's not true. Weissued a subpoena, responded within the time. That packagethat arrived has not been opened. It's in our safe.

He's unable to provide all of the documents, given thatthere is a temporary restraining order. We understand that.House counsel's involved. Mr. Cummings and I evidently agreeon this point, that we're trying to get all that information.

But to suggest that he was non-responsive is simply nottrue, because he did respond within the time allocated underthe subpoena.

PLASKETT: Well, it's my position, Mr. Chairman, thatCopyright (c) 2015



Sep 29 2015 18:10:45until you're able to open all of those documents and receiveall of them, and we're able to balance them against thedocuments, that 20,000 pages of documents produced by PlannedParenthood, that this is an unfair hearing, and that we'renot getting...

CHAFFETZ: Will the gentlewoman yield? I agree that weneed all the information. That's why Mr. Daleiden was notinvited to this hearing. The subject is exactly what I saidin my opening comments and statements, which many membershave asked, inquired about.

It's the funding component. This is not -- we did nottitle this hearing as a hearing on the videos. It caused somecontroversy. But we have, in the essence of time, somelegitimate discussion about a continuing resolution andongoing funding for Planned Parenthood. And we've laid thatout.

But my comments were not about the video, it was aboutthe funding. That's where my concern lies. And we will -- wewill get to hopefully see all of those videos. But we've gotto get past the restraining order that has been put in placeby a judge in California.

PLASKETT: Mr. Chairman, if we're going to discussfunding, and knowing that members of Congress can sit hereand ask questions that run the gamut in that funding questionis related to those videos, which are the genesis of thequestion of whether to defund, then I think it's a littlenaive of us to think that that discussion can be done in avacuum without the videos and the other documents from theother side. I think that my time is up.

CHAFFETZ: Would the gentlelady yield? With thechairman's indulgence, in fairness to the gentlelady, I'mlooking at the memorandum from the majority, and it talksabout background for this hearing. And the first sentenceunder "Background" says, "Recently released videosdemonstrate Planned Parenthood Federal of Americaparticipates in transactions involving transferring fetaltissue for (inaudible)," and then it goes on.

But let me just very briefly, so that the record isclear, the gentlelady referred to documents that we had notreceived. And again, I'd like to briefly clarify one point onthe record, because it is important for the committee membersto understand. I'll be very brief.

On Friday afternoon, a Republican staff informedDemocratic staff that Mr. Daleiden sent them a package, FedExbox, but they said that they did not want to open it untilthis week. We thought this was strange, because if theRepublicans delayed opening this package, members would nothave had enough time to review whatever was inside beforetoday's hearing.

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Sep 29 2015 18:10:45

So our staff also made it clear that if the Republicanswanted to use any of this material at today's hearing, itshould be opened immediately on Friday, so we would begin to-- could begin to reviewing it as soon as possible throughthe weekend. But Republican staff told us that they wanted tojust keep the box closed. They said they would not open it,and they would not use it at the hearing.

So as of this moment, we still do not know for sure whatis inside that box from Mr. Daleiden. However, we did receivea copy of minutes from a recent hearing in a lawsuit inCalifornia where Mr. Daleiden's attorneys apparently told thecourt in that case that they delivered additional video forthis two-hour committee. So even more footage that Mr.Daleiden cut from the videos, he's released publicly.

So we went on to -- we want to open the package. We wantmembers to have equal access to the videos that areapparently inside. And we definitely want to see what theother footage Mr. Daleiden was concealing from the public.I'll yield back.

CHAFFETZ: I want to see all the videos, too. That's whywe issued the subpoena. I wish you all had supported us whenwe issued it.

CUMMINGS: Again, Mr. Chairman, I've said it before. AndI don't want to...

CHAFFETZ: I'm glad to have your support. Glad to haveyour support.

CUMMINGS: We've been -- we've supported, and I can showyou the documents that show you that we -- consistently, wehave asked that we get all of the tapes. And I willcertainly, if you give me a few minutes while others areasking questions, I'll give you the very documents that wesent you assuring that.

CHAFFETZ: All right. We're going to go now to thegentleman from South Carolina, Mr. Mulvaney, for fiveminutes.

MULVANEY: I thank the chairman, and I'll try and make myDemocratic colleagues happy. I ask funding questions thathave nothing to do with the videos, how about that?

Which is more important to you, Ms. Richards, actuallyproviding women's health care services, or lobbying?

RICHARDS: Well, I think the two things go hand in hand.And certainly, what we have learned over the years is that inorder to be able to provide health care services to women,you have to also be able to advocate particularly for womenwho are underserved. So I think the two things actually go

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Documents

NAF Response letter