Last week, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that grand-jury testimony and information may be disclosed only to prosecutors, defendants and other grand juries and that judges may not carve out exceptions to the secrecy already mandated by the Federal Rules of Criminal Procedure. The majority (two Republican appointees, Judge Douglas Ginsburg and President Trump’s former deputy White House counsel, Judge Gregory Katsas) found that the court does not have “inherent supervisory authority” to release grand jury testimony. McKeever v. Barr (pdf).
The case had been watched closely for any potential impact on the Mueller Report. Appeals court in D.C. rules judges may not create exceptions to grand-jury secrecy rules:
The split decision, by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, could lead to further confusion over the public release of the report written by special counsel Robert S. Mueller III documenting his investigation of Russian interference in the 2016 presidential election, as well as related investigative materials.
“Every page of the ‘confidential report’ ” by Mueller, Justice Department spokeswoman Kerri Kupec said in a statement Thursday, “was marked ‘May Contain Material Protected Under Fed. R Crim. P. 6(e)’ — a law that protects confidential grand jury information — and therefore could not be publicly released.”
But the court’s ruling also affirmed that grand-jury materials could be shared with the House of Representatives under an exception for “judicial proceedings,” citing a 1974 ruling by U.S. District Judge John J. Sirica during the investigation of President Richard M. Nixon that the House “in this setting acts simply as another grand jury.”
* * *
The decision adds to a body of conflicting appeals-court decisions about whether federal judges have expansive powers or operate under tight restrictions about when grand-jury materials can be shared.
In the past, the D.C. Circuit has permitted disclosure of grand-jury materials when no specific exception applied, including in 2011, when a court released transcripts of Nixon’s post-resignation questioning by special prosecutors in 1975 before grand jurors, and in 2007 in connection with the grand-jury subpoena of New York Times journalist Judith Miller.
Despite affirming that grand-jury materials could be shared with the House of Representatives under an exception for “judicial proceedings,” some legal commentary has argued that the McKeever ruling may threaten the release of the Mueller Report. See, Philip Allen Lacovara and Laurence H. Tribe, The full Mueller report could be released — if the House opens preliminary impeachment hearings:
The uncertain prospect that the House Judiciary Committee will receive the raw, unredacted report generated by special counsel Robert S. Mueller III got even less certain Friday. A decision by the federal court of appeals in Washington now confronts the House leadership and Attorney General William P. Barr with some difficult political choices.
In a 2-to-1 decision in McKeever v. Barr, the court reaffirmed the principle of grand jury secrecy and concluded that a court has no “inherent power” to release grand jury information. This decision will give Barr a plausible basis to resist the Judiciary Committee’s subpoena of the entire Mueller report, even if the committee goes to court to enforce it. But both the House and the attorney general have ways to cope with this obstacle, if they have the political will and the professional judgment to do so.
* * *
This decision will give Barr a plausible basis to resist the Judiciary Committee’s subpoena of the entire Mueller report, even if the committee goes to court to enforce it. But both the House and the attorney general have ways to cope with this obstacle, if they have the political will and the professional judgment to do so.
* * *
In the face of Barr’s decision not to disclose any of the Mueller report to the public or even to the House Judiciary Committee chaired by Rep. Jerrold Nadler (D- N.Y.) until Barr and his team have scrubbed the report of grand jury information (and other material), Nadler and committee Democrats have authorized a subpoena for the full report, setting the stage for a court fight over the committee’s right to see grand jury information. Although the public need underlying the request for disclosure in McKeever was much less pressing, the decision in that case undermines the position of Nadler’s committee, because the controlling federal rule contains no exception allowing congressional “oversight” committees to demand access to otherwise secret grand jury proceedings.
One of us (Tribe) has supported investigation but resisted the call for impeachment hearings as such, defending House Speaker Nancy Pelosi (D-Calif.) in that regard, while the other (Lacovara) recently argued that Pelosi was duty-bound under the Constitution to have the House Judiciary Committee open a formal investigation into whether grounds for impeachment exist. One reason for doing so was to enhance the likelihood that the committee could see the evidence that Mueller developed through the use of his investigating grand jury.
* * *
One of the exceptions to grand jury secrecy is disclosure “preliminary to or in connection with a judicial proceeding.” To authorize disclosure of the Watergate grand jury information, the special prosecutor’s office argued that the House had authorized its Judiciary Committee to conduct a formal impeachment inquiry and that such an inquiry could be fairly analogized to a “grand jury” investigation and thus a judicial proceeding. Both the district court and the court of appeals agreed, and the Judiciary Committee obtained both the report and the underlying evidence.
Significantly, the appeals court decision several days ago reaffirmed that exception. All three judges agreed that an impeachment inquiry falls within the “exception for judicial proceedings” and “coheres” with other rulings about the proper scope of grand jury secrecy.
* * *
Nothing in the federal rules creates an explicit exception allowing congressional committees exercising general powers of government “oversight” to demand access to secret grand jury material. So, Pelosi and Nadler are confronting a dilemma of their own making: either revisit the politically fraught impeachment question or concede that the House is at the mercy of whatever judgment the attorney general makes in excising grand jury information, which may include the most salient material about possible collusion and obstruction of justice.
Brianne Gorod and Ashwin Phatak undertake a deeper legal analysis at Slate. How Congress Can Get Around a New Ruling That Threatens the Release of the Mueller Report:
At first blush, the D.C. Circuit’s ruling in McKeever v. Barr might seem like bad news for those who believe there should be greater transparency about what Mueller uncovered. But the decision actually reaffirms an important point: The district court judge who impaneled the grand jury that has been working with Mueller for the past two years can disclose some of the underlying materials that formed the basis for Mueller’s report to Congress.
Since Mueller completed his investigation into Russian interference in the 2016 election, Congress has sought access to the report and the information underlying Mueller’s conclusions, for good reason. But Attorney General William Barr has thus far refused to make it available, pointing in part to a federal rule that generally requires grand jury materials to be kept secret.
The D.C. Circuit’s decision in McKeever is about when district court judges can disclose grand jury material. The majority held, over a dissent, that district court judges do not have “inherent authority” to release grand jury information. While the majority is wrong about that, and its decision should be reversed, all three judges who heard the case agreed that Congress can still obtain grand jury materials under some circumstances.
* * *
The court’s decision is wrong for two reasons. First, the majority does not grapple with the long history permitting courts to disclose grand jury materials pursuant to their inherent authority overseeing grand juries. Prior to the adoption of the Federal Rules of Criminal Procedure, the Supreme Court held that the decision of whether to release sealed grand jury materials “rests in the sound discretion of the court” and that “disclosure is wholly proper where the ends of justice require it.” The committee notes accompanying the first enactment of the Federal Rules of Criminal Procedure in 1944 noted that Rule 6 was intended to “continue the traditional practice of secrecy on the party of members of the grand jury, except when the court permits a disclosure.” Congress has never suggested that it intended the rules to usurp district courts’ inherent authority to release grand jury materials.
* * *
Second, the majority’s ruling in McKeever conflicts with the D.C. Circuit’s prior decision in Haldeman v. Sirica, which was decided by the full court sitting en banc. (McKeever was decided by a three-judge panel, which must, in theory, respect precedents decided en banc.) In Haldeman, the D.C. Circuit affirmed a district court decision to disclose grand jury materials regarding the Watergate investigation to the House Judiciary Committee, which was considering whether to impeach President Richard Nixon. The D.C. Circuit ruled that the district court judge, Judge John Sirica, “ha[d] dealt at length with” the grand-jury-disclosure question and that the D.C. Circuit was “in general agreement with his handling of [the] matter.” Judge Sirica, for his part, held that district courts have inherent authority to release grand jury materials, even if no Rule 6(e)(3) exception applied. Because the D.C. Circuit specifically endorsed this theory in Haldeman, Friday’s panel decision improperly contravened a binding en banc decision.
The D.C. Circuit’s decision in McKeever is thus wrong and should be overturned by the full D.C. Circuit or by the Supreme Court. But even if it stands, it does not mean that Congress would be unable to obtain the grand jury materials associated with Mueller’s investigation. Just the opposite.
Crucially, all three judges in McKeever agreed that district court judges can disclose grand jury materials to Congress under some circumstances. The dissenting judge rightly recognized that they can do it under their inherent authority. But even the majority concluded that its decision was consistent with Haldeman because, in its view, the disclosure in Haldeman was made pursuant to the Rule 6 exception that permits district court judges to release grand jury materials “preliminarily to or in connection with a judicial proceeding.” In effect, then, McKeever recognizes that, at the very least, a House committee’s impeachment investigation would fall within this exception and would provide a basis pursuant to the rules to release grand jury materials even if the court lacks inherent authority to release the materials. And under Haldeman, the purpose of the ongoing congressional investigation shouldn’t matter.
In Haldeman, “the prosecutor represented that this disclosure of the grand jury material to the House Judiciary Committee and eventually possibly to the House and Senate is being made “preliminarily to [and] in connection with a judicial proceeding,” a specific exception under Rule 6(e). The House Judiciary Committee preliminarily used the “roadmap” provided by the Watergate grand-jury to draft Articles of Impeachment and only then began the judicial proceeding of impeachment. So it would not appear that Congress must first seat a committee for impeachment, as Allen Lacovara and Laurence Tribe argue.
Former special agent in the Counterintelligence Division of the FBI, Asha Rangappa, adds at POLITICO Magazine, The Forgotten Reason Congress Needs to See the Mueller Report:
News that Attorney General William Barr might have mischaracterized special counsel Robert Mueller’s final report on obstruction of justice by the president has increased calls for Barr to release the report to Congress. If Barr refuses to do so and House Judiciary Committee Chairman Jerry Nadler issues a subpoena, we may be in for a separation of powers showdown—and a central question will be the legal basis upon which Congress is entitled to see the fruits of Mueller’s investigation.
The argument for Congress obtaining Mueller’s full report on obstruction is typically based on its constitutional power to impeach . . . This is a powerful argument in the battle that could ensue in the coming weeks. But it overlooks an additional constitutional basis that Congress has for reviewing the president’s conduct: Congress has a responsibility, rooted firmly in the Constitution, to safeguard the integrity of the justice system, including to prevent obstruction of justice. Therefore, Mueller’s findings are as much about whether President Donald Trump has stepped on Congress’ toes as it is about whether he broke the law.
In contesting a subpoena from Congress, the White House likely will make its favorite defense, which is that the president, legally speaking, can’t obstruct justice. This “unitary executive” theory rests on Article II of the Constitution, which gives the chief executive the power to “take care that the laws be faithfully executed.” According to this view, this language means the president alone is in charge of which cases to pursue in the justice system: If he decides to stop an investigation, that is his prerogative, and his reasons for doing so are beyond the purview of investigators, Congress and the courts. A year before being confirmed as attorney general, Barr laid out an ancillary proposition in a long and rambling memo to Deputy Attorney General Rod Rosenstein, arguing the president can’t be investigated for obstruction based on something that is, on its face, a valid exercise of his power — like firing the FBI director. According to Barr, questioning the motives behind such an action would have disastrous consequences and open a Pandora’s box of potential inquisitions into “all exercises of prosecutorial discretion.”
The problem with this defense is that it conflates enforcement of the laws—a power that resides in the executive branch—with the administration of justice, which is constitutional responsibility that is shared by all three branches, including Congress. When it comes to the administration of justice—and those who would thwart the integrity of that process—Congress has a big role to play.
* * *
[I]n fact, understanding obstruction of justice as an expression of Congress’ constitutional power to safeguard the judicial process means that contrary to Barr’s assertions, the motive behind the obstruction matters—particularly when it comes to the president. Precisely because the test for obstruction of justice is whether someone acted with a “corrupt” motive, the crime gets to the heart of whether Trump has upheld his oath to ensure “faithful” execution of the laws—and gives the “take care clause” meaning and accountability. If there is evidence, for example, that Trump tried to stop the Russia investigation to shield his own private conduct because it is illegal, politically damaging, or even merely embarrassing to him personally, then he has not only violated the U.S. legal code, but also his own constitutional duty to enforce the laws in good faith.
It’s because the president holds such immense power that the obstruction of justice law not only applies to him, but applies especially to him: When he abuses that authority, he is not only potentially breaking the law, he is encroaching on Congress’ constitutional interest in the administration of justice—which means Congress has a lens, independent of its impeachment power, through which to review his actions. The full details of Mueller’s report will reveal if Trump used his power to undermine the efforts of the coequal branches to uphold the rule of law—and Congress has every right to find out.