Ruling casts legal shadow on the release of grand jury materials

The Fifth Amendment to the U.S. Constitution provides "No person shall be held to answer for a capital crime, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury." In order to charge a person with a serious federal crime, a federal prosecutor is required to secure the assent of a grand jury. Because matters before a grand jury are secret, a tension exists between Congress' power of oversight (Article I) and the Federal Rules of Criminal Procedure. The rules effectively create an information barrier to releasing the grand jury materials.

Attorney General William Barr is in the process of preparing the Mueller report for public release "making the redactions that are required" by law. The report will be released shortly. The rules prohibit "an attorney for the government" from disclosing "matters occurring before a grand jury" under the penalty of law, except as otherwise provided in the rules. FRCP 6(e)(2). The Department of Justice has traditionally taken the position that the release of "grand jury material" to Congress must be authorized by one of the enumerated exceptions in Rule 6(e) or by judicial order. The exceptions fall into two general categories: Disclosures without judicial authorization (disclosure to a government attorney; disclosure to government personnel; disclosure to another grand jury; and disclosure of intelligence and national security information), and disclosures made with judicial authorization.

The House Judiciary Committee has prepared a subpoena to require Attorney General Barr to release the complete Mueller report, including the grand jury materials. Some courts have held that grand jury documents and information may be disclosed notwithstanding the limited exceptions in Rule 6(e). The circuits are split on the issue of whether federal courts have the inherent authority to authorize the release of grand jury materials beyond those expressly stated. On April 5, the U.S. Court of Appeals for the D.C. Circuit decided McKeever v. Barr, No. 15-5149. In a 2-to-1 decision, the D.C. Circuit joined those circuits that require grand jury disclosures to fit within the exceptions. The court rejected historian McKeever's request that he be granted access to grand jury evidence involving the 1957 indictment of an FBI agent. In doing so, the court rejected the claim that courts have the inherent theory to order the release beyond those limited exceptions.

The D.C. Circuit offered several reasons to support its rejection of the inherent authority theory. Disclosure is an exception to the general rule of secrecy. The exceptions are specific and enumerated in the rules, and the courts should avoid crafting additional exceptions beyond those enumerated by the legislature. Rule 6(e)(2)(B) expressly states "unless these rules provide otherwise." Allowing the creation of a "good public policy" or public interest exception would undermine the general rule as well as the list of exceptions. The U.S. Supreme Court has long held that judicially created exceptions to legislation should not be implied without evidence of clear legislative intent. The court also reasoned that secrecy safeguards the vital interest in preserving the willingness and candor of witnesses appearing before the grand jury, and in preserving the rights of suspects who might not be charged. Disclosure may expose a person to public censure and criticism without providing an official forum to respond.

The dissent viewed the matter as falling within applicable precedent, Haldeman v. Sirica, 501 F.2d 714 (1974). Judge Sirica reasoned that Rule 6(e) did not limit him from disclosing grand jury reports. The House Judiciary Committee was allowed to gain access to a grand jury report investigating the alleged improprieties of President Richard Nixon. The dissent went on to observe that this reading of Haldeman is consistent with decisions in the 7th and 11th Circuits. It also squares with the Advisory Committee's reasoning that the court's already were authorized to make such disclosures as a matter of inherent authority.

The McKeever decision casts a legal shadow on the release of grand jury materials on the inherent authority theory. Unless the decision is reversed en banc, or Supreme Court resolves the split between the circuits, the decision limits access to the grand jury materials to the exceptions enumerated in Rule 6(e). The judicial enforcement of a subpoena for the full report may trigger the judicial proceeding exception that provides a court may authorize disclosure of a grand jury matter "preliminarily to or in connection with a judicial proceeding." Rule 6(e)(3)(E)(I). The problem is that the courts have generally rejected the argument that a proceeding instituted primarily to obtain grand jury materials will be considered a judicial proceeding.

At this point, several possibilities exist. One solution is to work out the redactions to the satisfaction of the Judiciary Committee, which is not encouraging given the committee's continued demands for the full report. Another is for the committee to use the judicial proceeding exception by starting an impeachment proceeding. One thing is certain: Barr's scheduled release of the redacted report in the coming days will be the first step in a drawn out legal process to gain full access to the Mueller report, and one that has been made more challenging for the Congress by the McKeever v. Barr decision.