Posted on 04/06/2019 5:01:19 AM PDT by billorites
In disclosing the Mueller report, Attorney General William P. Barr will have to redact grand-jury information. That is the upshot of the ruling today by a divided panel of the U.S. Court of Appeals for the D.C. Circuit.
I flagged this case, now called McKeever v. Barr (formerly McKeever v. Sessions), last week. It did not arise out of the Mueller investigation, but it obviously has significant ramifications for the Mueller report — in particular, how much of it we will get to see.
At issue was this question: Does a federal court have the authority to order disclosure of grand-jury materials if the judge decides that the interests of justice warrant doing so; or is the judge limited to the exceptions to grand-jury secrecy that are spelled out in Rule 6(e) of the Federal Rules of Criminal Procedure? The D.C. Circuit’s McKeever ruling holds that the text of Rule 6(e) controls. Consequently, judges have no authority to authorize disclosure outside the rule.
This is significant for the Mueller report because Rule 6(e) does not contain an exception to secrecy that would permit disclosure to Congress.
The case involves a writer, Stuart McKeever, who was researching a book on the disappearance of Columbia University professor Jesús de Galíndez Suárez in 1956. It was suspected that Galíndez, a very public critic of Dominican Republic dictator Rafael Trujillo, was kidnapped and flown to the D.R., where he was murdered. In the course of a federal investigation, suspicion fell on John Joseph Frank, a former FBI agent and CIA lawyer, who later worked for Trujillo. Frank was eventually prosecuted for failing to register as a foreign agent but never charged with any involvement in Galíndez’s murder.
In 2013, for purposes of his research, McKeever petitioned the court for release of records of the grand-jury proceedings that led to Frank’s 1957 indictment. There is nothing in Rule 6(e) that would permit the veil of grand-jury secrecy to be pierced for an academic or literary research project. Yet the district judge asserted that federal courts have “inherent supervisory power” to disclose grand-jury materials, including those that are “historically significant.” Ultimately, however, the judge denied the petition, reasoning that it was “overbroad.”
McKeever appealed. In opposition, the Justice Department argued not only that he should be denied the grand-jury records, but also that the lower court had been wrong to claim authority to disclose the materials outside the strictures of Rule 6(e). The three-judge panel agreed with the Justice Department, in an opinion written by Judge Douglas H. Ginsburg (now a senior judge, appointed by President Reagan) and joined by Judge Gregory Katsas (appointed by President Trump). Judge Sri Srinivasan (appointed by President Obama) dissented.
The majority explained that the Supreme Court has long recognized the vital purposes served by grand-jury secrecy, and thus that secrecy must be protected unless there is some clear contrary indication in a statute or rule. Disclosure is the exception, not the rule.
In Rule 6(e), Congress has prescribed grand-jury secrecy and its exceptions. Those who contend that a court may permit disclosure outside the rule argue that judges had such authority before the rule was enacted. The panel majority, however, emphasized the rule’s sweeping language: Officials must refrain from disclosure “unless these rules provide otherwise.” The rule also takes pains to spell out the situations in which a judge may authorize disclosure. Plainly, the intent of the rule was to limit disclosure; were an unwritten judicial power to ignore the limitations recognized, the rule would be pointless.
The exceptions enumerated in the rule permit judges to authorize disclosure, to federal and certain non-federal officials, in order to aid in the enforcement of criminal laws. Clearly, it would be easy to conjure other worthy exceptions. Nevertheless, the panel majority observed, the Supreme Court has stressed that “not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy.”
The panel rejected the claim that the D.C. Circuit’s decision in a Watergate era case, Haldeman v. Sirica (1974), permits disclosure outside the rule. This is salient for purposes of the Mueller report because Haldeman involved an order by the district court (Judge John Sirica) permitting transmission of a sealed grand-jury report to the House Judiciary Committee, which was then considering possible grounds to impeach President Nixon.
In his dissent, Judge Srinivasan maintained that Haldeman should control. Judges Ginsburg and Katsas disagreed, relating that the lower and appellate courts in Haldeman failed to conduct any “meaningful analysis of Rule 6(e)’s terms”; they merely offered policy arguments in favor of disclosure — with Sirica, for example, suggesting that disclosure to the House of Representatives was analogous to disclosure to another grand jury (the rule allows the latter). Moreover, Haldeman was distinguishable, the majority reasoned, because the disclosure of the grand-jury report was technically done within the context of the criminal case against H. R. Haldeman and his co-defendant, Gordon Strachan; that is, it was not a direct transmission to the House.
(For what it’s worth, I believe Haldeman is distinguishable for an additional reason: The grand jury in that case was operating under a statute that permitted it to file a report, as distinguished from an indictment, which the grand jury itself recommended be transmitted to the House. I described such reports nearly two years ago, when we first learned that Mueller had convened a grand jury; and Kim Strassel had an excellent Twitter thread about them earlier this week, specifically addressing Haldeman. Such grand-jury reports are very different from what is at issue in the Mueller report. The latter is a prosecutor’s report based, in part, on grand-jury evidence; there are no grand-jury findings or recommendations that its proceedings be transmitted to Congress; and Democrats are asking for all the grand-jury information, with no view expressed by the grand jury or the witnesses who would be affected. The panel majority, however, did not address these differences — no doubt because the Mueller report was not under consideration in the McKeever case.)
It is foreseeable that McKeever could be further appealed, to the full D.C. Circuit (an en banc review) and to the Supreme Court. Not only was the panel divided, but there is a split in the circuits — which the panel majority acknowledges, discussing the relevant cases at the conclusion of its opinion. For now, however, McKeever is the law in the D.C. Circuit, where the Mueller investigation took place. Naturally, the Justice Department must follow it — and it is, again, an affirmation of the Justice Department’s position on the law.
This means Attorney General Barr must redact grand-jury material from the Mueller report before disclosing it to Congress. Democrats will complain long and loud about this, but I don’t see how Barr can be reasonably faulted for following the law. Congress, after all, has the power to legislate an amendment to Rule 6(e) that would permit disclosure of grand-jury materials from a special counsel investigation to appropriate congressional committees.
Don't forget, the Rs still control the Senate. The soonest such a law could be passed would be in 2021, and only if we lose the Senate and fail to re-take the House.
And there is the whole ex post facto issue to deal with then.
No it doesn't. This is a great decision, but it doesn't override precedent in other federal districts and the courts had been chipping away for a while at the secrecy of Grand Jury testimony.
See this wonderful little piece of judicial garbage, and right here in the DC Circuit. Chief Judge Beryl A. Howell's Order to Unseal Documents in the case IN RE APPLICATION TO UNSEAL DOCKETS RELATED TO THE INDEPENDENT COUNSEL’S 1998 INVESTIGATION OF PRESIDENT CLINTON
The judge has lot's of wonderful things to say, including citing the Carlson case - which I will discuss below, but quite to the point, her honor writes:
“The D.C. Circuit has not specifically addressed the question of whether courts have inherent authority to order the release of grand jury records in circumstances not enumerated by Rule 6(e),”
Well, in this case on the 5th of April the Circuit Court so addressed it and to the prejudice of Chief Judge Howell's efforts to over-ride statute with judicial discretion.
If Trump’s DOJ ever impanels a grand jury to look at the real felons involved in the coup (all democrats and their allies) most of the guilty will STFU about releasing grand jury testimony.
In that case, I would have a total collapse of memory if ever required to appear before a Grand Jury.
I wouldn’t recall my shoe size.
Laws, we don’t need no stinking laws.
BTW, when do we recognize that this no country at all, but only a geographical entity? We don’t have a border. We don’t enforce our laws. The Fake Congress is full of cackling hens, clumsy bulls and traitorous snakes. And we are the sheep for allowing it to continue.
Yes, heads will explode, but the purpose of the redactions is to protect the guilty, mostly Democrats.
Actually it is a story because there are conflicting opinions in other jurisdictions and the recent jurisprudence of the US, up to this decision, has been to chip away at Grand Jury secrecy.
A keystone case in the counter-move was the Court's Opinion in Carlson v. US, 837 F. 3d 753 (2016)
Therein Chief Judge Dianne Wood (Clinton Appointee "considered a liberal intellectual counterweight to the Seventh Circuit's conservative heavyweights, Richard Posner and Frank Easterbrook"), writing for the majority, stated:
he government's primary textual argument is that the phrase "[u]nless these rules provide otherwise," which appears only in Rule 6(e)(2)(B), somehow carries over to all of Rule 6 and provides conclusive proof that the court's power in subpart (3)(E) is limited to the purposes listed under that heading. This makes no sense, either as a reading of Rule 6(e) or as a general matter of statutory (or rule) construction. The government provides no explanation for why a limitation buried in subsection (B) of subpart (2) of Rule 6(e) secretly applies to the rule as a whole
Judge Sykes in dissent wrote: Rule 6 of the Federal Rules of Criminal Procedure comprehensively governs the conduct of grand-jury proceedings, and subpart (e) of the rule requires that all matters occurring before the grand jury must be kept secret, subject to certain narrow exceptions...t's easy to see (and everyone agrees) that none of these exceptions even arguably applies to the petitioners' request, which is not made by the government or a defendant and has nothing to do with a judicial proceeding..
So the law says they can’t release grand jury testimony?
Since when do Demo rats care what the law says?
The report will now consist of Mueller’s (or the prosecutor) questions & the response. The response being nothing but a seemingly disconnected string of adjectives, prepositions, conjunctions & interjections.
Did you read the article?
So the dems will finally stop DEMANDING an unredacted Mueller report, right?
Implies hell, its already the law.
In addition, they will want DoJ to provide the committee with extra copies so it can make immediate distribution to all their Democraatic friends in the media (i.e.: NYT, WashPost, CNN, MSNBC, etc.)
No, AG Barr MUST redact because the Democrat staffs and Members og the House Government Oversight and Intelligence Committees leak, as one Republican Member put it, like “screen doors on a submarine.”
I also like the AG’s intention to simultaneously release it to the public so the Democrats and media cannot play the “I know something you don’t” game. They will still lie and exxagerate, of course, but it will be much harder when they don’t control access to the documents.
Ditto for President Trump’s tax returns. There is absolutely no way they would not be leaked the moment Democrats got their hands on them.
Politicians are generally untrustworthy, but Democratic politicians are completely untrustworthy in matters of security and secrecy.
In disclosing the Mueller report, Attorney General William P. Barr will have to redact grand-jury information.
Of course, the Obama appointee to the three judge panel wanted to go lawless, but that's because he's unfit for the bench. Thanks billorites.
You don’t understand. They’re Democrats. The law doesn’t apply.
Right now Barr cannot release the grand jury testimony, unless he wants to break the law.
Fat jerry can pound sand.
Any National Security issues cannot be disclosed. And if Trump wanted to, he could shut down another portion based on Executive Privilege.
Agreed. I do not think that will ever happen. There are two types of justice in both Kanaduh and the US. One level for the ‘elites’ and one for everyone else.
Turd-owe’s attempts to obstruct justice in the SNC-Lavslin affair will hopefully, result in the Lieberals being soundly defeated and even his losing his seat in the House of Commons. Unfortunately, he has the same chance of standing trial for his crimes as HillyBilly do. None. You or I caught doing similar things? LOTS of time in the crowbar hotel.
Trump’s DC circuit and Supreme Court appointments very well may be the difference in this case.
Not to mention the appointment of Barr as Attorney General.
Matt Whitaker was genius appointment by Trump. He cleared the way for the Barr appointment. The left was scared to death Trump might keep Whitaker.
Thank GOD for Donald J Trump
WINNING!
Good for justice and bad for Dems. Says that the law requiring secrecy for grand jury “evidence” and arguments that did not result in a conviction cannot be disclosed because that would be slandering a legally innocent person, stands...the Dems want all the data available so they can manufacture and spin from false accusations.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.