Point of Order

I have not watched most of Attorney General Barr’s testimony over the past couple days, but I gather from clips and reporting that he has made a few remarks regarding grand jury material redactions from the Mueller report. I have a few brief comments on these statements.

First, Barr notes, correctly, that under the Mckeever decision no grand jury material can be provided to Congress or the public except pursuant to one of the express exceptions set forth in Rule 6(e). He also indicates he does not see at the moment that any of those exceptions apply. He suggests, however, a willingness to discuss 6(e) redactions once the report is released, specifically with regard to any redactions that might be material to understanding the report or its conclusions.

Barr mentions the possibility of “workarounds” with regard to the redacted material. By this he might mean providing non-grand jury material that would provide the needed context or substantiation to substitute for whatever was redacted. He also may be leaving open the possibility of seeking permission from the court to release 6(e) material, although he appears disinclined to go that route at the moment.

Barr made one comment of potential legal significance. With regard to grand jury material in the report to Congress by independent counsel Ken Starr, Barr suggested that this was immaterial to the current circumstances because Starr was operating pursuant to a statute that “overrode” the provisions of Rule 6(e). Barr here is referring to 28 U.S.C. § 595(c), discussed in my prior post, which provided “[a]n independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.”

Barr is correct that in Starr’s view § 595(c) overrode the requirements of grand jury secrecy. As explained in Starr’s report to Congress (see note 18), however, out of an abundance of caution he also sought express authorization from the Special Division to disclose grand jury material. The Special Division then authorized Starr to release grand jury material and provided “this authorization constitutes an order for purposes of Federal Rule of Criminal Procedure 6(e)(3)(C)(i) permitting disclosure of all grand jury material that the independent counsel deems necessary to comply with the requirements of § 595(c).”

The Special Division’s order does not say that section 595(c) overrides the requirements of grand jury secrecy. It may or may not have agreed with Starr on this point. By issuing an order pursuant to the “judicial proceeding” exception, however, the panel indicated that Starr’s disclosure was also justified under that exception, presumably because it was “preliminarily to” the “judicial proceeding” of impeachment.

Of course, it is impossible to know from the Special Division’s brief order what role section 595(c) played in its decision to invoke the “judicial proceeding” exception. It may have believed, for example, that section 595(c) effectively gave the independent counsel the authority to decide what materials were necessary for the House to receive. (That Starr’s application to the Special Division is still under seal makes it particularly difficult to discern the panel’s thinking on this). Nevertheless, it is hard to see how its order makes sense unless impeachment is the “judicial proceeding” on which it was based. This in turn indicates that a disclosure can be “preliminarily to” an impeachment proceeding even if no impeachment inquiry has yet been formally initiated.

It should also be noted that the Freeh/LaBella disclosure was not made pursuant to section 595(c). Although it is possible that the Justice Department could attempt to distinguish that disclosure on the grounds that an impeachment inquiry was underway (although on a different subject than that of the disclosure), there is nothing in the language of Rule 6(e) or in any of the relevant precedents to suggest that this is a material distinction.

In short, if Barr is merely suggesting that the absence of section 595(c)’s reporting requirement makes it inappropriate to seek here the kind of blanket authorization to disclose grand jury material received by Ken Starr, he makes a reasonable point. If, on the other hand, he is arguing that Chief Judge Howell would be without power to order disclosure of grand jury material in the Mueller report because of the absence of a “judicial proceeding,” he is in my opinion mistaken.

On its face, Friday’s D.C. Circuit decision in McKeever v. Barr, involving a historian’s request for access to grand jury materials from 1957 for purposes of a book he is writing, might seem to have little relevance to redactions in the Mueller report. In fact, however, the decision turns on the court’s interpretation of a 1974 precedent in which Chief Judge Sirica authorized “disclosure of a sealed grand jury report to aid in the inquiry by the House Judiciary Committee into possible grounds for impeachment of President Nixon.” McKeever, majority slip op. at 9 n. 3; see In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C. 1974). More precisely, it turns on the McKeever court’s interpretation of the D.C. Circuit’s 1974 en banc interpretation of Judge Sirca’s decision. See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc).

As explained below, this decision is potentially  significant with respect to the Mueller report.

The McKeever majority ruled that judges lack inherent authority to disclose grand jury materials protected by Fed. R. Crim. P. 6(e) outside of the express exceptions set forth in that rule. Acknowledging the court’s decision in Haldeman was ambiguous on this point, McKeever construed Haldeman as approving Judge Sirica’s disclosure on the grounds that a House impeachment inquiry is a “judicial proceeding” for purposes of Fed. R. Crim. P. 6(e)(3)(E)(i), which is one of the explicit exceptions to grand jury secrecy set forth in the rule. McKeever, majority slip op. at 9 n. 3. It therefore concluded Haldeman did not stand as a precedent in favor of a court’s inherent authority to release grand jury materials.

Judge Srinivasan dissented in McKeever. While he noted that the “judicial proceeding” exception to Rule 6(e) “arguably applied” to the release of a grand jury report to Congress in connection with an impeachment investigation, he did not interpret Judge Sirica’s decision as relying on that exception. Instead, in Judge Srinivasan’s view the best reading of the en banc opinion in Haldeman was that it approved Judge Sirica’s exercise of inherent authority to release the report. See McKeever, dissent slip op. at 2-5.

Whatever one’s evaluation of the relative strengths of these positions, the majority opinion in McKeever is, at least for the moment, the controlling law in the D.C. Circuit. Thus, Congress cannot now ask the district court to release grand jury material in the Mueller report based on the court’s inherent authority. The Justice Department likewise could not support such a request even if it agreed with it (which it clearly would not, given that DOJ urged the narrow reading of the court’s authority adopted by the McKeever majority).

This does not mean, however, that Congress has no options for obtaining access to grand jury material in the Mueller report. It merely means that any disclosure to Congress must be pursuant to one of the express exceptions to grand jury secrecy listed in Rule 6(e).

Continue reading “The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report”

In our political culture of contempt and pervasive paranoia, it is hardly surprising that Attorney General Barr’s refusal to release immediately the unreacted Mueller report has led many to accuse him of a coverup. So while I agree with Ben Wittes that everyone should chill out and wait to see what Barr actually produces in the next week or so, the reality is that any redactions will raise suspicions.

Fortunately, there is a relatively simple way to address this problem. The idea comes from the impeachment proceedings against President Clinton in 1998. The House Judiciary committee, which was reviewing the allegations against Clinton in the Starr report, wanted access to the Freeh and LaBella memos, internal Justice Department documents that recommended appointment of an independent counsel to investigate campaign fundraising violations during the 1996 presidential election cycle. The Justice Department took the position that these memoranda could not be shared with Congress because, among other reasons, they contained grand jury material protected under Fed. R. Crim. P. 6(e). (It would later turn out DOJ had been rather overly enthusiastic about designating grand jury material, including for example a quote from a Dick Morris book).

In light of the impeachment investigation (and the associated political pressure from Congress), the Clinton Justice Department agreed to ask the judge supervising the grand jury, Chief Judge Norma Holloway Johnson, to allow the committee access to the memoranda. After a couple of attempts (the committee, through House counsel, had to file its own motion after the court denied DOJ’s first request), Judge Johnson agreed to allow the committee limited access to the memoranda. As Peter Baker described the court’s decision: “Each side could send a single staff member to read the memos, but no copies could be made and no notes taken.” Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton 183-85 (2000). That way the committee would have a basis for requesting any additional material it believed was relevant to its proceedings (it ultimately did not do so).

A similar process could be used to deal with redactions from the Mueller report. The court could permit two Judiciary committee staffers (one majority, one minority) to review the unreacted report. They would be prohibited from taking notes or disclosing the contents of the report publicly. If, however, there were redactions the committee believed to be improper or to contain important information, it could ask the court to release that information.

This seems like a reasonable way for protecting any legitimate Justice Department interests while reassuring the public that the attorney general is fulfilling his promise of maximum transparency.

In his letter yesterday to Congress, Attorney General Barr reiterated that “my goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.” Barr, noted, however that “[b]ased on my discussions with the Special Counsel and my initial review, the report contains material that is or could be subject to Federal Rule of Criminal Procedure 6(e)” (emphasis added), which restricts “disclosure of matters occurring before the grand jury.” Before deciding how much of the report can be released, the Justice Department must “identify the 6(e) material that by law cannot be made public.”

Although the redaction of grand jury material runs counter to Congress’s goal of full transparency for the Mueller report, it may on balance work in Congress’s favor. First, unless the Justice Department adopts a broad interpretation of grand jury secrecy, there should be little need to redact information in order to comply with Rule 6(e). The only material clearly covered by the rule would be direct references to what transpired before the grand jury. Thus, for example, discussion of evidence (such as documents or witness interviews) without reference to the grand jury should not fall within the rule even if that evidence was presented to the grand jury. See Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, CRS Report for Congress 11-13 (Jan. 10, 2019). Because Mueller presumably drafted the report with an understanding of Rule 6(e)’s strictures, it is reasonable to assume that the need for redactions will be minimal.

Second, Congress can seek judicial authorization for disclosure of any material withheld under 6(e). It can do this by filing an application with the chief judge in the district where the grand jury was empaneled (presumably the chief judge of the United States District Court for the District of Columbia, although Mueller also had a grand jury in Virginia), asking for a determination whether the material in question falls with 6(e) and, if so, authorization of disclosure of the material to a congressional committee. Although it is possible that a committee could obtain access to protected material for oversight purposes under the court’s exercise of its inherent authority, its argument will be considerably stronger if it is acting pursuant to the impeachment power. See CRS Report, supra, at 41 (“where a congressional committee has sought grand jury materials in connection with the contemplated impeachment of a specific public official, several courts have recognized that court-ordered disclosure may be available pursuant to the ‘judicial proceeding’ exception.”). Thus, if the Justice Department attempts to withhold a significant amount of grand jury material, it may inadvertently hasten the advent of formal impeachment proceedings.

Finally, the Office of Legal Counsel has recognized that in “rare circumstances” the president’s “Article II responsibilities may independently justify the disclosure of pertinent grand jury information to him and his advisors.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising his Authority to Grant Pardons, 24 OLC Op. 366, 367 (Dec. 22, 2000). It reached this conclusion in part based on case law allowing congressional access, noting “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.” Disclosure of Grand Jury Matters to the President and Other Officials, 17 OLC Op. 59, 68 (Sept. 21, 1993). OLC, however, cautioned that such disclosures not be routine, be undertaken only in accordance with carefully crafted procedures, and that obtaining advance court approval would be preferable.

Given that the Mueller grand jury was investigating possible crimes of the president and his close associates, it would seem inadvisable (to say the least) for the president to get access to any grand jury material withheld from Congress. In light of the OLC opinions allowing such disclosures under some circumstances, including where the president believes it would be relevant to his exercise of the pardon authority, the House Judiciary committee should demand that the attorney general notify it of any special access to grand jury information granted to the president.

And DOJ would be well-advised to keep any Rule 6(e) redactions to the bare minimum.