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The United States Court of Appeals for the District of Columbia Circuit ruled that the Committee on the Judiciary of the US House of Representatives (the Committee) should be given access to three specific categories of grand jury materials which had been redacted. These materials were part of the Special Counsel’s Report of his investigation into Russian interference with the 2016 Presidential election. The US Attorney General released a public version of the report with sections of the grand jury materials redacted. Although the Committee had received a slightly less redacted version, specific sections of the Report remained redacted. The Court confirmed the ruling of the District Court, and authorized the disclosure of the first two categories of the requested material and “ordered the Department to provide these materials to the Committee by October 30, 2019.
In May 2017, the Deputy US Attorney General Rod Rosenstein appointed Robert S. Mueller III as Special Counsel to investigate Russian interference in the 2016 presidential election, which resulted in the election of Donald Trump. This investigation included a grand jury which issued over 2 800 subpoenas and heard testimony from over 80 witnesses. On May 22, 2019, Mueller submitted his two volumes report to the Attorney General. Volume I summarized Russian interference in the 2016 presidential election and described the “numerous links between the Russian government and the Trump Campaign” and volume II outlined the Special Counsel’s examination of whether the President obstructed justice in connection with the Russia-related investigations [page 3]. Although, the Special Counsel found that “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” he did not exonerate the President [page 3-4]. Mueller noted the risk of infringing the separation of powers through indicting and prosecuting a sitting President as a “federal indictment would ‘potentially pre-empt constitutional processes for addressing presidential misconduct’” [page 4].
In April 2019 the US Attorney General released a public version of Mueller’s report with redacted portions of the grand jury materials and “other information that he determined could compromise ongoing intelligence or law enforcement activities, harm ongoing criminal matters or unduly infringe upon the personal privacy interests of peripheral third parties” [page 4]. The US House of Representatives Committee on the Judiciary (the Committee) was permitted to review a slightly more complete report but the grand jury materials remained redacted.
On July 26, 2019 the Committee approached the District Court for the District of Columbia and filed an application for the release of certain portions of the grand jury materials, under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure. Rule 6(e)(2)(B) provides that “’a matter occurring before the grand jury’ must not be disclosed by grand jurors, interpreters, court reporters, government attorneys, or other persons specifically listed in the Rule” [page 8]. However, Rule 6(e)(3)(E)(i) creates the “judicial proceeding” exclusion by permitting a court to authorize disclosure “preliminarily to or in connection with a judicial proceeding,” where the person seeking disclosure has shown a “particularized need” for the requested grand jury materials.
The Committee sought three categories of materials: “all portions of the Mueller Report that were redacted pursuant to Rule 6)(e)”; “any portions of grand jury transcripts of exhibits referenced in those redactions”; and “any underlying grand jury testimony and exhibits that relate directly to certain individuals and events described in the Mueller Report” [page 5-6].
The Department of Justice opposed the Committee’s application in its capacity as “custodian of the grand jury records” but did provide the redacted portions of Volume II of the Report to the Court to view in camera. Neither the redacted portions of grand jury materials in Volume I nor the grand jury transcripts or exhibits mentioned in that volume were provided to the Court.
The District Court granted the Committee’s application, holding that senate impeachment trials were a judicial proceeding in terms of Rule 6(e). The District Court held that “historical practice, the Federalist Papers, the text of the Constitution and Supreme Court precedent all make clear [that] impeachment trials are judicial in nature and constitute judicial proceedings” [page 6]. The Court noted that it was bound by circuit precedent and referred to Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc) and McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019). The Court described the Committee’s need for the redacted grand jury materials as a “particularized need” because it had a “compelling need” for the requested material to “investigate fully” and “to reach a final determination about conduct by the President described in the Mueller Report” [page 6-7]. It added that this need “outweighs any remaining grand jury secrecy interests” and the material sought by the Committee was “tailored to this need” [page 7]. The Committee had proposed that the first two categories of information be disclosed first, and it could make further applications for the third category.
Accordingly, the district court authorized the disclosure of the first two categories of the requested material and “ordered the Department to provide these materials to the Committee by October 30, 2019” [page 7]. In respect of the third category, the Court held that the Committee “could file additional requests articulating its particularized need for the third category” [page 7].
The Department then appealed to Court of Appeals for the District of Columbia.
Justice Judith Ann Wilson Rogers delivered the majority opinion for the Court of Appeals. Justice Thomas Beall Griffith delivered a concurring opinion, and Justice Neomi Jehangir Rao delivered a dissenting opinion. The central issues for the Court’s determination were whether the grand jury constituted a “judicial proceeding” under Rule 6(e) and then, if so, whether the Committee had demonstrated that the redacted portions of the grand jury material should be disclosed.
The Court undertook a thorough analysis of the nature of grand juries and their relationship to the judiciary. With reference to Rule 6(a) and United States v. Williams 504 U.S. 36, 47 (1992), the Court described the grand jury as operating at “an ‘arm’s length’ from the judicial branch” but within the “auspices of the district court in which it is convened” [page 8]. It quoted United States v. Seals 130 F.3d 451, 457 (D.C. Cir. 1997) as describing the grand jury as “depend[ing] on the judiciary in its role as an investigative body” and so, as in Morrison v. Olson 487 U.S. 654, 681 no.20 (1988), the district court has “supervisory jurisdiction over the grand jury” [page 8]. The Court noted that courts have powers over a grand jury, including the power to summon, empanel and discharge a grand jury and to control access to its investigation records. By noting that the Williams and Seals cases confirmed that grand juries “remains an appendage of the court”, the Court emphasized that grand jury records are not the property of the Executive Branch merely because they are housed with the Department of Justice. Here, the Court observed that the jurisprudence demonstrates that Courts have considered grand jury records to be court records rather than the “property of the Government’s attorneys, agents or investigators” [page 9]. In addition, the Court referred to the procedure under the Freedom of Information Act in respect of grand jury materials, and noted that the legislation does not categorize grand jury records as “agency records”. It added that the Tiger & Buffone v. Dep’t of Justice 590 F. Supp. 1012, 1014-15 (D.D.C. 1984) case had held that if grand jury records were agency records that would “encroach upon the authority of the courts to control the dissemination of its documents to the public” [page 10]. The Court concluded that “it is the district court, not the Executive or the Department, that controls access to the grand jury materials at issue here” [page 10].
In determining whether a Senate impeachment trial did constitute a “judicial proceeding” for the purposes of Rule 6(e), the Court held that its decisions in Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc) and McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019) clarified that “a Senate impeachment trial does qualify as a ‘judicial proceeding’ under the Rule” [page 11]. The Court also referred to article 1 of the Constitution which states that “[t]he Senate shall have the sole Power to try all Impeachments” and that when a President “is tried the Chief Justice shall preside” in concluding that the “constitutional text confirms that a Senate impeachment trial is a judicial proceeding” [page 12]. It added that the Federalist Papers also demonstrate that “[t]he Framers of the Constitution also understood impeachment to involve the exercise of judicial power” [page 12]. The Court also rejected the Department’s argument that Rule 6(e)’s reference to “judicial proceeding” had to be interpreted as being limited to judicial court proceedings because the “ordinary meaning” of “judicial proceeding” did not include proceedings before legislative bodies and that other references to “judicial proceeding” in the Rules “unambiguously referred to a court proceeding” [page 13].
The Court observed that “the term ‘judicial proceeding’ has long and repeatedly been interpreted broadly, and courts have authorized the disclosure of grand jury materials ‘in an array of judicial and quasi-judicial contexts’” [page 13]. The Court also relied on the historical practice and noted that “Rule 6(e) was adopted in 1946 to ‘codif[y] the traditional rule of grand jury secrecy’ that was applied at common law” [page 13]. It noted that the common-law tradition was to provide grand jury materials to Congress to “assist with congressional investigations” [page 14] and that there are at least two examples of courts ordering the disclosure of grand jury materials in impeachments proceedings of federal judges before the adoption of the Rule and of two presidents and three federal judges after the Rule’s adoption. In fact, the Court noted that “[i]t is only the President’s categorical resistance and the Department’s objection that are unprecedented” [page 14]. The Court emphasized that “[i]n interpreting the Rule, this established practice deserves ‘significant weight’” [page 14].
Having determined that senate impeachment trials are judicial proceedings, the Court then examined whether the Committee had “established a particularized need for the redacted grand jury material it seeks” [page 15]. The Court referred to Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979) which set out the three requirements which must be demonstrated by the party seeking the grand jury information. These requirements are: (1) that the material “is needed to avoid a possible injustice in another judicial proceeding;” (2) that “the need for disclosure is greater than the need for continued secrecy;” and (3) the “request is structured to cover only material so needed” [page 15-16].
The Court stressed that this Douglas Oil standard is flexible and context-dependent and, with reference to United States v. John Doe Inc I, 481 U.S. 102, 116 (1987), noted that a District Court is given wide discretion in determining whether disclosure of grand jury material would be appropriate in the circumstances. The Court referred to In re Sealed Case, 801F.2d 1379,1381 (D.C. Cir. 1986) in emphasizing that a District Court’s decision on a disclosure can only be overturned “if that discretion has been abused” [page 16].
The specific circumstances in the present case related to impeachment and the Court referred to the District Court’s findings that the grand jury materials were necessary for the Committee “to ‘investigate fully’, to ‘evaluate the bases for the conclusions reached by the Special Counsel’ and to ‘reach a final determination’ about ‘whether the President committed an impeachable offence’ a question ‘that the Special Counsel simply left unanswered’” [page 16-17]. The Court dismissed the Department’s argument that the District Court had merely concluded that the materials may be relevant to the Committee and pointed to the detailed analysis of the documents done by the District Court. The Court referred to the Haldeman and Hastings cases which had “concluded that when Congress seeks access to grand jury materials to assist in an impeachment investigation, district courts hand off all relevant materials to Congress without micromanaging the evidence” [page 18]. It quoted from the Hastings case which had noted that “without full access to the grand jury materials, the public may not have confidence that the Congress considered all relevant evidence” [page 19].
The Court recognized that there is a need to protect grand jury secrecy as that can ensure that future witnesses in grand juries provide frank and full testimony and can protect against public ridicule of witnesses whose testimony may be disclosed at a later stage. However, it agreed with the District Court’s findings that the need for secrecy in this case was outweighed by the “Committee’s compelling need for the materials in order to determine whether, or to what extent, links existed between the Russian government’s efforts to interfere” in the 2016 election [page 20]. In addition, the District Court had recognized that the Committee had adopted procedures to limit access to any materials disclosed to it, and that – as Congress has still not made public information from the investigation into President Richard Nixon – these procedures can be reliably respected.
The Court held that “[t]he district court did not abuse its discretion” as it had only released material Mueller had found “sufficiently relevant to discuss or cite in his Report” [page 16]. The District Court had also noted that the Department itself had already released information that had previously been redacted to protect third parties which had “reduc[ed] the need for continued secrecy” [page 16]. The Court held that the Committee continued to have a particularized interest in the material because the Committee could introduce articles of impeachment if information emerged from the grand jury records of new impeachable offences.
The Court stressed that the circumstances in the present case diminished the risk of “public ridicule” of witnesses because there was “widespread public knowledge” about Mueller’s investigation [page 21], and held that the need for disclosure was greater than the need for continued secrecy in this case.
Accordingly, the Court held that the Department had not demonstrated that the District Court had abused its discretion in ordering the disclosure of the matter and stated that “[a]long with the ‘public’s interest in a diligent and thorough [impeachment] investigation’ these considerations tip the balance toward disclosure” [page 22].
The Court held that the Committee’s request was tailored to its need as it had identified three specific categories of grand jury materials and had suggested a staged disclosure, starting with the first two categories. The Court rejected the Department’s argument that the District Court could not have determined whether the requested information was relevant to the Committee’s needs because it had only reviewed volume II of the Mueller Report and not volume I. The Court noted that the District Court did not need to conduct an analysis of volume I’s redactions because the Mueller Report as a whole made it clear that the redacted information in volume I would be necessary for the Committee to exercise its duty to evaluate the President’s conduct and come to its own conclusions. The Court stressed that it is not the duty of the courts to “second-guess the manner in which the House plans to proceed with its impeachment investigation or interfere with the House’s sole power of impeachment” [page 24].
Although the Court acknowledged that courts should not “rubber stamp” congressional requests for the grand jury material, and so should conduct further inquiries if it does not believe that the link between the investigation and the requested material is sufficiently clear, it held that in the present case the link was clear. It noted that Mueller had not made any firm conclusions about the President’s conduct “in part to avoid pre-empting the House’s sole power of impeachment” and held that the Committee “has established that it cannot ‘fairly and diligently’ make a final determination” about the President’s conduct without the redacted information [page 25].
Accordingly, the Court confirmed the District Court’s order, finding that as a Senate impeachment trial constitutes a “judicial proceeding” under Rule 6(e) and as the Committee had “established a particularized need” for the redacted information, the record had to be disclosed [page 25].
Justice Rao’s dissent “turn[ed] on fundamental principles of separation of powers” [page 9]. She focused on the distinction between the District Court’s power to authorize disclosure of grand jury materials and to order the Department of Justice to release those materials. She agreed with the majority on the point that the district court did not abuse its discretion in authorizing disclosure of the grand jury materials and accepted its finding that senate impeachment trials constitute “judicial proceedings” for the purposes of Rule 6(e). However, she disagreed that the District Court was entitled to order the Department – part of the executive – to take action. She noted that the historical jurisprudence demonstrates that “although courts have sometimes authorized disclosure to third parties pursuant to their supervisory authority or under the judicial proceeding exception of Rule 6(e), courts have not compelled disclosure to third parties over the objection of the executive branch” [page 23]. She described the process as being that a District Court would lift the grand jury secrecy “so that the executive branch attorney may disclose the materials” [page 15]. She commented that this allows both the district court and government attorneys to play a “gatekeeping and supervisory role over grand jury materials” and stated that the majority’s position places all that power solely with the judiciary [page 15]
Justice Rao stressed the importance of grand jury secrecy, and that “Rule 6(e) codifies and reinforces the requirements of grand jury secrecy”, stipulating only a limited set of circumstances in which this can be overturned. She stated that “[v]ery few third parties [to the grand jury] will fit within these circumscribed exemptions, which do not include, for example, any provisions for Congress, members of the public, historians, or the media” [page 14]. The judge commented that the Committee did not have standing to request the disclosure of the grand jury materials: she stated that the Committee was a third party, and that “there is no longstanding tradition of courts ordering disclosure of grand jury materials to third parties” [page 17].
Justice Rao also commented that, given the developments in the impeachment charges against President Trump – namely, that the Committee had conducted an impeachment investigation, the House had voted in favour of two articles of impeachment, and the Senate had acquitted the President – the Court should remand the case to the District Court “to address whether authorization is still warranted” [page 6]. This is because the Judge commented that it is no longer clear whether impeachment was the “primary purpose of the Committee’s application”, and the Committee may no longer have a “particularized need” for the disclosure of the grand jury materials [page 6].
The Court had responded to Justice Rao’s dissent, noting that the distinction between authorization and compulsion to release the order was not raised by either of the parties. It added that the dissent’s position was based on a flawed premise that a judicial action was being sought against the executive branch, whereas the Department was involved merely as the custodian of the grand jury materials. [page 26]
Justice Griffith’s concurring opinion responded to Justice Rao’s dissent. He disagreed with the dissent’s insistence “that ‘possession’ [of the grand jury materials] is the ‘dispositive factor’” and reiterated the majority judgment’s position that the judiciary serves “as gatekeepers of grand jury information” [page 2]. He also disagreed with the dissent’s distinction between the power to authorize disclosure and the power to compel that disclosure, and quoted the McKeever case as saying that “[w]hen the court authorizes … disclosure [of grand jury records], it does so by ordering an attorney for the government who holds the records to disclose the materials” [page 3]. He also disagreed with the claim that the district court’s supervisory authority never extends to aiding third parties. For this, he observed that the district court would also aid a third party who has been harmed due to breach of the grand jury’s secrecy. Accordingly, he concludes: “compulsory process—even for the benefit of third parties— falls within the district court’s traditional supervisory power” [page 4].
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In finding that the “compelling need” of the Committee to access the information to enable them to reach its determination on the President’s conduct outweighed the need for grand jury secrecy in this case, the Court of Appeals confirmed the importance of the right of access to information. The Court noted that in all previous impeachment cases there had been no opposition from the Department of Justice in providing grand jury materials to assist Congress in investigating possible misconduct, and so the judgment played an important role in protecting Congress’s right of access to information to enable it to perform its constitutional duties.
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