Congress: Beware of the Justice Department’s Attempt to Change Rule 6(e)

In a decision issued this summer, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia considered a petition to unseal the transcript of former President Nixon’s grand jury testimony in 1975. For reasons explained below, the court’s decision to grant the petition has important implications for the ability of congressional committees to access grand jury information. However, a change to the rules of grand jury secrecy proposed by Attorney General Holder this week would undercut both Judge Lamberth’s ruling and future congressional oversight.

In the case before Judge Lamberth, the Department of Justice opposed the petition to unseal the transcript, which was filed by a group of scholars interested in Nixon’s grand jury testimony from a historical perspective. The Department argued that disclosure of the testimony would violate Rule 6(e) of the Federal Rules of Criminal Procedure, prohibiting disclosure of matters occurring before a grand jury except under specific circumstances. Because none of the enumerated exceptions to Rule 6(e) applied, the Department contended the petition could not be granted.

Judge Lamberth disagreed. Relying on a line of authority that “special circumstances” may justify the disclosure of grand jury material “outside the boundaries of the rule,” he concluded that there was “ample support” for the proposition that courts have inherent authority to release grand jury records “beyond Rule 6(e)’s literal wording.” The court found that there were special circumstances, primarily the age and historical importance of the Nixon testimony, that justified granting the petition.

Among other authorities, Judge Lamberth cited the 11^th Circuit’s decision in In re Hastings, 735 F.2d 1261, 1268-69 (11^th Cir. 1984), where the court found it had “inherent authority” to release grand jury evidence, without regard to the terms of Rule 6(e), regarding a federal judge to a judicial investigating committee, noting that “the question under investigation—whether an Article III judge should be recommended for impeachment by the Congress, otherwise disciplined, or granted a clean bill of health—is a matter of great societal importance.” Another 11^th Circuit panel subsequently approved release of the same evidence to the House Judiciary Committee, although it did so under a specific exception contained in Rule 6(e) and thus did not reach the inherent authority question. See In re Hastings II, 833 F.2d 1438 (11^th Cir. 1987).

Even more significantly, Judge Lamberth cited Judge Sirica’s decision to release the report of the first Watergate grand jury to the House Judiciary Committee. See In re Report and Recommendations of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C. 1974). He explained that Judge Sirica “rejected the argument that disclosure was ‘absolutely prohibited’ because it fell outside of Rule 6(e).” Moreover, “[t]he D.C. Circuit approved of Judge Sirica’s decision, stating that it was ‘in general agreement’ with his rejection of the contention that ‘the discretion ordinarily reposed in a trial court to make such disclosure’ of grand jury materials is limited by the terms of Rule 6(e).” Memorandum Opinion & Order at 8 (citing Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir. 1974)(en banc)).

Judge Lamberth’s opinion therefore has important ramifications for congressional access to grand jury materials. Rule 6(e) contains no explicit exception allowing disclosure of grand jury materials to Congress. In cases where the materials are sought for purposes of an impeachment inquiry or trial, it may be argued that, because Congress is performing a judicial or quasi-judicial function, Rule 6(e)’s exception for disclosure “preliminarily to or in connection with a judicial proceeding” should apply.

There is, however, no guarantee that all courts would recognize impeachment as a “judicial proceeding” within the meaning of Rule 6(e). Moreover, for congressional investigations and oversight outside the context of impeachment (or other “judicial” matters such as disciplining members and judging elections), the only basis for disclosure of grand jury records would be the type of inherent authority recognized by Judge Lamberth. See In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299 (M.D. Fla. 1977). This becomes particularly important when one considers that the Department of Justice has been known to stretch the definition of “matters occurring before the grand jury” in order to justify withholding information from Congress, even if it involves investigatory activities that took place outside the presence of the grand jury. See In re Grand Jury Proceedings, Newport News Drydock & Shipbuilding Co., (E.D. Va. Nov. 12, 1984).

Rather than appealing Judge Lamberth’s adverse ruling, the Justice Department is now proposing to change Rule 6(e). In an October 18, 2011 letter sent to the federal judge who chairs the Advisory Committee on the Criminal Rules, Attorney General Holder argues that “inherent authority” decisions such as Judge Lamberth’s “threaten[] to undermine the essential principle that Rule 6(e) encompasses, within its four corners, the rule of grand-jury secrecy and all of its exceptions and limitations.” Although Holder proposes to codify an exception to Rule 6(e) that would allow the release of historically important materials that are at least 30 years old, it is clear that his real objective is to prevent federal courts from authorizing disclosures not explicitly provided for in Rule 6(e), including disclosures to Congress.

It should be noted that the Justice Department has not always been so concerned that disclosures of grand jury information be limited to those explicitly authorized by Rule 6(e). In a 1993 opinion by then-Acting Assistant Attorney General Walter Dellinger, the Office of Legal Counsel advised that certain grand jury matters, such as information regarding terrorism or other national security issues, could be disclosed to the President even though not within the exceptions set forth in Rule 6(e). It cited the 11^th Circuit’s decision in Hastings II and the D.C. Circuit’s decision in Haldeman as evidencing “the courts’ willingness to recognize an independent constitutional basis for disclosures of grand jury information outside the provisions of Rule 6(e).” OLC argued that “if congressional access to grand jury materials may be independently justified on the basis of its Article I power, it would be anomalous to contend that Presidential access to such materials could not be justified on the basis of the President’s Article II powers.”

Since that time, Rule 6(e) has been amended to provide for disclosure of grand jury matters involving national security matters such as foreign intelligence and counterintelligence “to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official’s duties.” The Justice Department may believe that Rule 6(e) as written now adequately protects the interests of the executive branch.

It does not, however, protect Congress’s interests.