but it really puts a standard that goes to the case you cited, safavian, i think? >> yes, sir. >> and basically assume everything is material until proven otherwise or the court notes otherwise. so if you would address those two issue. one, if illegal, what specific crime did these prosecutors commit? and secondly, if there is a lesson to be learned here, should this lesson be written into the law so that the faceless criminal defendant who may not get a senate judiciary committee hearing has the same protection. >> first, senator, there have been -- as my report describes, had judge sullivan issued a clear and unequivocal order that the prosecutors produce all brady and giglio material, there would have been a crime committed, criminal contempt with respect to those episodes described in our report as to which we concluded the conduct was intentional. beyond that, there's footnote in our report which says that we offer no opinion as to whether or not a prosecution or obstruction of justice might lie, because that's noth as a matter of fact, the power wouldawyer in

paul freedman of the district court here in washington in a recent fairly publicized case called safavian addressed this issue and said no, it is not the prerogative of the prosecutor, one of adversaries of course in this proceeding to decide before a single witness has been called to testify, before a jury has been impanelled, before the judge has ruled on the admissibility of any piece of evidence that some exculpatory or impeachment information will not be material. that's looking judge friedman said at the subject through the wrong end of the telescope. he's absolutely right about that, in my judgment. that makes perfect sense. so i believe the question for the congress may be squarely presented. need we do something about eliminating this materiality requirement so that prosecutors understand that in the pretrial setting, they are required to disclose any information which is favorable to the accused or which would serve to impeach anticipated government witnesses. i know that the department of justice has a strong, contrary view. namely that there should be legislation to achieve th