dissenting.
Both the memorandum written to the Justice Department by prosecutor Stanley Janice and the transcripts of the grand jury proceedings at which Mr. Janice questioned witnesses were Jencks Act material that the government should have produced. This Court should unseal this material, provide it to the defendants, and remand this case to the district court for a determination of whether this obvious violation of the Jencks Act was harmless error.
I
Stanley Janice’s testimony on direct examination at the Rumler II trial was extensive. He testified generally about the facts underlying the Rumler I case, and more specifically about his involvement in the indictment and trial of defendant Rumler, including the discovery process in that trial and his dealings with defendants Susskind and Nickerson during the course of the trial. Mr. Janice testified that Brian Legghio was the Assistant United States Attorney in charge of the case. Stanley Janice also testified on direct examination concerning his receipt from Nickerson of the three documents which are alleged to have been fraudulent. He explained that he was suspicious of whether these documents were what they purported to be and described his motivation for consulting a Michigan State Police document examiner to determine if the documents were genuine.
*1409The Jencks Act, 18 U.S.C. § 3500, codified the holding in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), which established a defendant’s right to inspect documents in the government’s possession “touching the subject matter of [government witnesses’] testimony at the trial.” Id. at 672, 77 S.Ct. at 1015; See also, Goldberg v. United States, 425 U.S. 94, 104, 96 S.Ct. 1338, 1345, 47 L.Ed.2d 603 (1976) (discussing legislative history of Jencks Act); Clancy v. United States, 365 U.S. 312, 315, 81 S.Ct. 645, 647, 5 L.Ed.2d 574 (1961) (citing legislative history). Jencks recognized that “only the defense is adequately equipped to determine the effective use for purposes of discrediting the Government’s witness and thereby furthering the accused’s defense,” 353 U.S. at 668-69, 77 S.Ct. at 1013, and that “the interest of the United States in a criminal prosecution ‘... is not that it shall win a case, but that justice shall be done____’” Id. at 668, 77 S.Ct. at 1013 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled by Stirone v. United States, 361 U.S. 212, 80.S.Ct. 270, 4 L.Ed.2d 252 (1960)).
In enacting the Jencks Act, Congress was attempting to prevent what it perceived -as a “misapplication of Jencks” that would lead to “fishing expeditions” through government files containing confidential information and matters of “public interest, safety, welfare, and national security.” Goldberg, 425 U.S. at 104, 96 S.Ct. at 1345 (citing H.R.Rep. No. 700, 85th Cong., 1st Sess., 4 (1957)). “The Act was not intended to limit the Jencks decision,” however, with regard to its protection of the accused’s right to a fair trial. Id. The Act reflects the realization that “disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966).
The wording of the Jencks Act is abundantly clear about what is required for material to fall under its purview. First, the material must be a “statement,” as defined by the Act. 18 U.S.C. § 3500(b). Second, the material must “relate to the subject matter as to which the witness has testified” at trial. Id. Both of the items the district court withheld from the defendants were obvious Jencks Act material.
The January 3, 1990 memorandum Stanley Janice wrote to the Justice Department in response to defendant Rumler’s complaint against him is clearly a “written statement made by [Mr. Janice] and signed or otherwise adopted or approved by him.” 18 U.S.C. § 3500(e)(1). It “relates to the subject matter” as to which Janice testified at trial, 18 U.S.C. § 3500(b), because it discusses the Rumler I case, which Janice testified about, and contains the following statement concerning the extent of Janice’s involvement in that case:
During the total period prior to indictment, the investigation was directed by AUSA Brian Legghio. I became involved only after a substantial portion of the investigation, including debriefing of key witnesses, had been completed. AUSA Legghio continued to be the lead government attorney until he left the office some months after the return of the indictment by the grand jury.
This statement is directly related to Janice’s testimony at trial that Legghio was in charge of the case, and raises questions about the timing and extent of Janice’s involvement and the circumstances under which Legghio left the office. The rest of the memorandum is generally related to most of Janice’s other trial testimony concerning Rumler I.
The grand jury transcripts that the district court withheld contain Janice’s statements and questions on December 6th and 8th, 1988 in his quest for the forthwith subpoena that was served on defendant Susskind at his office. They also contain statements made after the subpoena was served when the prosecutors presented the testimony of secretaries who worked in Susskind’s office. The transcripts clearly relate directly to Janice’s testimony on direct examination about his suspicion that the documents given to him by Nickerson were fraudulent, and they relate generally to his testimony about the conduct of the Rumler I case.
The grand jury transcript is a “statement” because it is a “transcription ... which is a substantially verbatim recital of an oral *1410statement made by [Mr. Janice] and recorded contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500(e)(2). The Jencks Act contains nothing that would exclude “questions” from the scope of “statements.” One need only review the exchange at the en banc hearing of this case to know that many “questions” posed by lawyers, and judges, while phrased in the form of questions are statements.1
It is naive to think, as the Court seems to suggest, that only rhetorical questions “impart information.” The fact that an appellate judge reviewing a transcript cannot detect “statements” contained within “questions” does not mean that defense lawyers could not find statements contained in what appear to be questions. The subject matter of questions, their wording, order and scope, particularly in the context of an informal grand jury proceeding, normally suggest assumptions, biases, or other fodder for impeachment on cross-examination. C.f. Alderman v. United States, 394 U.S. 165, 182, 89 S.Ct. 961, 971, 22 L.Ed.2d 176 (1969) (“An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event ... may have special significance to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances”).
There is no indication that the Jencks Act should be interpreted as narrowly as the Court today interprets it. The underlying goal of the Act is to protect a defendant’s right to a fair trial by preventing the government from hiding information that could be helpful to his defense. This goal, combined with the fact that defense attorneys are best qualified to determine what information is useful to their case, suggests a broad reading of the terms “relates to the subject matter” and “statement” in § 3500(b). Without reading the statute broadly at all, however, the material in this case clearly is Jencks material that should have been produced. The Court’s suggestion that “most, if not all, of the material sought by these defendants under the Jencks Act did not come within the purview of the statute” is ingenuous because by construing the Act as narrowly as it does, the Court ensures that very little material sought by any defendant will come within the purview of the statute. There is absolutely no danger in this case of the “fishing expedition” through the government’s files that prompted Congress to enact this legislation. There is no reason the district court should not have provided the sealed materials to the defendants.
On a motion for production of Jencks material, the Act limits the district court’s review to consideration of whether the materials in question are statements that relate to the subject matter of the government witness’ testimony. 18 U.S.C. § 3500(b). Thus the only appropriate rulings after in camera review under the Jencks Act are: 1) that some or all of the material does not contain statements that relate to the subject matter of the witness’ testimony and therefore does not have to be produced, or 2) that the material does contain statements that relate to the subject matter of the witness’ testimony and must be produced. The Act commands that after excising any portions that do not relate to the witness’ testimony, “the court shall then direct delivery of such statement to the defendant for his use.” 18 U.S.C. § 3500(c) (emphasis added). The Act provides no discretion for the court to delve into how the defendant might use the material. The district court’s finding that there were “no inconsistencies” was clear error.
II
Having determined that the documents in question indeed were Jencks Act material and should have been produced, I now turn to a discussion of whether and. under what circumstances such an error may be deemed “harmless.” In Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959), the Supreme Court held that “there is such a thing as harmless error” in Jencks Act cases. Id. at 371, 79 S.Ct. at 1234. The Court reached this conclusion, however, in a case where “the very same information was possessed by defendant’s counsel as would *1411have been available were error not committed.” Id. The Jeneks material in question was a typewritten copy of a handwritten statement that the defendant already had and a statement in a letter that had already been revealed to the defense by the government witness’ testimony at the trial. Id. at 370, 79 S.Ct. at 1234. The Court warned that “[a]n appellate court should not confidently guess what a defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled.” Id. at 371, 79 S.Ct. at 1234.
Every one of the Supreme Court cases interpreting and applying the Rosenberg harmless error rule has applied that standard very narrowly if at all. See Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 648, 5 L.Ed.2d 574 (1961) (refusing to consider a Jeneks Act error harmless, limiting Rosenberg to its facts, and holding that “[s]ince the production of at least some of the statements withheld was a right of the defense, it is not for us to speculate whether they could have been utilized effectively”); Killian v. United States, 368 U.S. 231, 244, 82 S.Ct. 302, 309, 7 L.Ed.2d 256 (1961), (instructing that a Jeneks error should be deemed harmless, and the defendant’s conviction reinstated, only if the district court found on remand that the defendant already possessed the information contained in the improperly withheld Jeneks material). See also, Goldberg, 425 U.S. at 111 n. 21, 96 S.Ct. at 1348 n. 21 (noting that courts cannot speculate whether Jeneks material could have been used effectively at trial so “the harmless-error doctrine must be strictly applied in Jeneks Act cases” (quoting Clancy, 365 U.S. at 316, 81 S.Ct. at 648)); Erckman v. United States, 416 U.S. 909, 913, 94 S.Ct. 1618, 1620, 40 L.Ed.2d 115 (1974) (Marshall, J., dissenting from Order denying certiorari) (“we have held that the harmless-error doctrine should be employed with restraint in Jeneks Act cases”).
This Court’s cases interpreting Rosenberg do nothing to expand the narrow application of the harmless error rule. See United States v. Pope, 574 F.2d 320, 326-27 (6th Cir.), cert. denied, 436 U.S. 929, 98 S.Ct. 2828, 56 L.Ed.2d 774, 436 U.S. 949, 98 S.Ct. 2856, 56 L.Ed.2d 792, 439 U.S. 868, 99 S.Ct. 195, 58 L.Ed.2d 179 (1978) (holding an unintentional Jeneks error harmless when the trial court had provided the statements to the defendant and recalled the witnesses to cure the error); United States v. Lane, 479 F.2d 1134, 1136 (6th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973) (holding there was no Jeneks error due to the government’s failure to turn over rough notes used to make a report when the report itself had already been given to the defense); United States v. Fruchtman, 421 F.2d 1019, 1022 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970) (same); United States v. Lonardo, 350 F.2d 523, 528 (6th Cir.1965) (ordering a mistrial because an interview report given to the defense did not contain the same information as a transcription of the interview that the government destroyed just before the trial). Many of the Jeneks Act cases in this Circuit that have held an error harmless have done so in situations where the government’s withholding of statements was unintentional and the district court thus was not a party to the error as it was here. See, e.g., Pope, 574 F.2d 320; United States v. Dye, 508 F.2d 1226 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). Thus, in light of our inability to determine how defense counsel might have used improperly withheld Jeneks material, we have been loathe to say that Jeneks errors are harmless except in the most obvious of eases.
This is not such an obvious case, and the Court’s eagerness to clear this case from its dockets has led it to ignore the strict application it must give to the harmless error doctrine. The Court’s main error is to equate the trial judge’s baffling assertion that “[tjhere are no inconsistencies” with a finding of harmless error. In saying that it found “no inconsistencies” the district court is simply saying that it cannot see how defense counsel could use the information to impeach witnesses. By conveniently reading this statement as a ruling on harmless error, the Court allows the district court to simultaneously commit an egregious Jeneks Act error and declare that error harmless. This is a misreading of the Jeneks Act, and it vio*1412lates the defendants’ right to due process of law. Harmless error analysis requires enough detachment from an alleged error to make an objective evaluation of the effect of that error. At the very least, harmless error analysis requires some review of an alleged error. It is impossible for a trial judge to commit a Jencks Act error and review it in one breath.
This Court’s decision not only allows the district court to violate the Jencks Act, “confidently guess what defendant’s attorney might have found useful for impeachment purposes,” Rosenberg, 360 U.S. at 371, 79 S.Ct. at 1234, and deny defendants’ due process rights by foreclosing their opportunity to even consider the impeachment value of the Jencks materials, but it compounds the error with circular logic that enables it to deprive the defendants of any meaningful appellate review of the error committed by the district court. The Court’s argument goes like this: Since the defendants have not explained what in the withheld materials they would use to impeach the government witnesses, they have not shown that any error in keeping these materials from them was harmful. This is a hard argument to make with a straight face. The fact is that the defendants, even to this point, have never been allowed to see the memorandum or the grand jury transcript. The Court’s suggestion that defendants’ appellate counsel must be able to explain precisely how the memorandum relates to Janice’s testimony, based only on the Court’s reading of part of the memorandum at the en banc hearing is too much. The Jencks Act requires courts to provide such material to defendants at their trial, not to make them guess at how they would have used it some three years later.
The Court’s holding allows courts rather than defense lawyers to craft an accused’s defense. Fundamental notions of due process suggest that it can never be “perfectly clear” that the defense was not prejudiced by a Jencks Act error when the defense is not even allowed the chance to present an argument on the issue. It is equally clear that an accused’s Sixth Amendment right to select his own counsel envisions that he will choose a lawyer whom he is confident can marshall creative defenses and discover grounds for impeachment of prosecution witnesses in the most innocuous of material. By prohibiting the defendants from ever even seeing material that they are clearly entitled to under the law, this Court has stretched the Jencks Act and the Rosenberg harmless error standard beyond recognition.
We should unseal both the memorandum and the grand jury transcript and provide them to the defendants. We should then remand this case to the district court to review the Jencks Act violation under a very strict reading of the Rosenberg harmless error doctrine.
. E.g., My "question” is: How can the Court be so wrong in this case?