Criminal Justice

DC Circuit bars release of grand jury materials to author; are there implications for Mueller report?

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Special counsel Robert Mueller and Attorney General William Barr. Photos from Wikimedia Commons.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Friday that judges don’t have inherent authority to order the release of grand jury information that is protected by secrecy rules.

The 2-1 decision bars release of grand jury materials to author Stuart McKeever, who is seeking grand jury records regarding the 1956 disappearance of a Columbia University professor, report the Washington Post, Politico and the National Law Journal. How Appealing links to additional coverage.

The case attracted attention because of possible implications for the release of the report by special counsel Robert Mueller. Attorney General William Barr has said he plans to redact secret grand jury information from the Mueller report before releasing it by mid-April.

Although the D.C. Circuit ruled against McKeever, footnote No. 3 in the decision reveals a way that grand jury materials in the Mueller report could be released to Congress.

Disclosure of grand jury records is generally barred by Rule 6(e) of the Federal Rules of Criminal Procedure. The rule lists several exceptions to the general rule.

The D.C. Circuit ruled that judges can’t create additional exceptions to Rule 6(e), while noting that some federal appeals courts have reached contrary conclusions. Senior Circuit Judge Douglas Ginsburg wrote the majority decision, while Circuit Judge Sri Srinivasan dissented.

In footnote No. 3, the appeals court acknowledged a 1974 decision by the D.C. Circuit that permitted the disclosure of a sealed grand jury report to aid in a House Judiciary Committee inquiry into possible grounds for impeachment of President Richard Nixon.

The D.C. Circuit said the 1974 decision, Haldeman v. Sirica, was “ambiguous as to its rationale,” but the decision fits within a Rule 6 exception that allows release of grand jury materials for judicial proceedings.

The House Judiciary Committee already has passed a resolution authorizing its chairman to subpoena the full Mueller report. Politico said that subpoena may be sufficient to come within the judicial proceedings exception, although an impeachment inquiry might have to be opened “to take full advantage” of the Haldeman case.

Jeffrey Fagan, a professor at Columbia Law School, told the Washington Post that the attorney general also could seek permission to release unredacted portions of grand jury transcripts under existing statutes.

The story cited exceptions not only for judicial proceedings but also for federal prosecutors who need the information to enforce criminal law, for grand juries and for federal officials who can help prevent foreign attack with foreign intelligence information.

“The issue isn’t carving out new exceptions or writing new rules but being crafty in how he makes the request to the court under the current rules,” Fagan told the Post. “The existing rules should be enough for a judge to rule on release.”

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