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The United States Court of Appeals for the District of Columbia Circuit affirmed the decision of the District Court which authorized disclosure of redacted grand jury materials referenced in the Special Counsel’s (Robert Mueller) Report in relation to the investigation for impeachment of US President Donald J. Trump. In this case, the Appellant (Committee on the Judiciary of the U.S. House of Representatives) petitioned the Court under Rule 6(e) of the Federal Code of Criminal Procedure for access to secret grand jury materials in and underlying the Mueller Report for potential use in the impeachment proceedings. The Court of Appeals concluded that the Appellant was entitled to access of the initial two (of three) categories of requested material and allowed to make an application for the third, on grounds of Senate impeachment qualifying as a ‘judicial proceeding’ under Rule 6(e) warranting disclosure and on account of the Appellant’s particularized need for the requested portions.
Post the alleged Russian government’s interference in the Presidential elections in 2016, Robert S. Mueller III was appointed to serve as Special Counsel in May 2017 to investigate whether the individuals associated with the Trump Campaign had coordinated with the Russian government to interfere in the election.
On March 22, 2019, a confidential two volume report was submitted to the Attorney General (Mueller Report), with Volume I describing the links between Russian interference and Trump Campaign and Volume II outlining an examination of obstruction of justice by the President in connection with the investigations. A redacted version of this report was released publicly by the Attorney General in April 2019. Volume II of the report implicated the President but fell short of determining whether the President obstructed justice, primarily on the ground that an indictment or criminal prosecution of the President would violate separation of powers.
Notably, the public version of the report contained numerous redactions of grand jury materials, including redactions made under Rule 6(e) of the Federal Code of Criminal Procedure to protect the secrecy of grand-jury materials from the Special Counsel’s investigation. In essence, these redactions were made to prevent the compromise of ongoing intelligence, law enforcement measures, current criminal matters as well as to prevent an infringement of the personal privacy interest of third parties. A review of an unredacted version was allowed by the Assistant Attorney General, except for the redactions relating to grand jury materials (claimed by the Attorney General on grounds of Rule 6(e)).
After a series of requests from the Committee on the Judiciary/House Judiciary Committee (Appellants) were declined by the Attorney General, the Appellants subpoenaed the Attorney General for the grand jury materials in order to assess ‘whether to approve the articles of impeachment’. The Department of Justice (DOJ) (Defendants) refused to comply. Subsequently, on July 26, 2019, the House Judiciary Committee filed an application for an order seeking release of the withheld materials. Three categories of materials were requested:
While the application of the Committee was pending before the District Court, the House of Representatives approved a resolution in October 2019 to continue impeachment investigations, thereby authorizing the Appellant to initiate litigation seeking the withheld grand jury materials so as to assist the investigation regarding recommendation on articles of impeachment with respect to the President. DOJ continued to resist as to Rule 6(e) materials.
On October 25, 2019, the District Court granted the Appellant’s application, ruling that Rule 6(e) authorizes the release of the materials on two counts – firstly, a reference to ‘judicial proceedings’ under Rule 6(e) encompasses impeachment trials, and secondly, the Court found the House Judiciary Committee possessed a particularized need for withheld information. It, therefore, authorized complete disclosure of the first two categories of materials (above), allowing the Appellants to file additional requests stating a ‘particularized need’ for the materials in the third category. The order of the District Court was appealed by DOJ, who sought a stay pending appeal from the District and Appellate forums.
In its submissions before the Court of Appeal, the Committee on the Judiciary contested that an impeachment is a judicial function, backed by precedents and judicial practice. Further, it also claimed that the ‘particularized need’ test requiring Courts to balance the public interest in disclosure against countervailing interest in secrecy was adequately discharged by it in this case.
DOJ, on the other hand, argued that the ruling of the District Court creates substantial separation of power problems by placing Courts in a position of policing Congress’s use of grand jury information in impeachment proceedings. It further argued that impeachment trials do not qualify as ‘judicial proceeding’ under Rule 6(e), primarily since a judicial proceeding under the Rule is a proceeding in a Court and not in Congress. Lastly, it also claimed that the District Court failed to apply the well-settled ‘particularized need’ test.
Judge Rogers delivered the opinion of the Court. Judge Griffith wrote a separate concurring opinion followed by a dissenting opinion from Judge Rao. The principle question before the Court was whether an authorization of disclosure by the grand jury in pursuance of the ‘judicial proceeding’ exception under Federal Rule of Criminal Procedure 6(e)(3)(E)(i) granted to the Committee on the Judiciary (Appellant) by the District Court was valid or not.
Federal Rule of Criminal Procedure 6(e)(3)(E)(i) is a codification of the traditional rule of ‘grand jury secrecy’, prohibiting generally a disclosure of any matter before the grand jury as well as specifying terms to whom and under what circumstances and conditions the disclosure is to be made. The rule sets forth certain exceptions to grand jury secrecy, allowing disclosure in some cases with a judicial involvement, judicial notice or court order. The prerequisites for applicability of the rule mandates (i) disclosure to be ‘preliminary or in connection with judicial proceeding’, and (ii) person seeking disclosure to show ‘particularized need’ for requested grand jury materials.
The court initially began with the question on the nature of impeachment trials. DOJ had maintained that the District Court’s interpretation of ‘judicial proceeding’ under Rule 6(e) to include impeachment was constitutionally flawed on account of the separation of powers doctrine, as it invited courts to scrutinize ‘legal sufficiency’ of theories of impeachment, materiality of evidence and assess Congress’s particularized need for grand jury information. Citing several precedents, however, the Court rejected this contention – noting that grand jury records do not become Executive Branch documents merely on account of being housed with DOJ. The Court also concluded that the Court need not comment on the propriety of investigation, but only decide if the grand jury materials requested are relevant to the impeachment investigation. Doing so by applying the ‘particularized need’ test (a regular practice in the opinion of the Court), in fact, mitigates the concerns raised by DOJ. A bar on DOJ to provide grand jury materials without authorisation would only impede, and not strengthen, Congress’s power to impeach [p. 15].
Based on the above, the Court concluded 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 impeachment did qualify as a ‘judicial proceeding’ [p.11]. A broad interpretation of the term ‘judicial proceeding’ was thus adopted by the Court of Appeals, rooted in consistent practice of the Congress to obtain such materials. Examples of these practices included, in the Court’s opinion, power to investigate questions pertaining to election fraud or misconduct of the members of the Senate.
In essence, ruling Rule 6(e) encompassed impeachment investigations, the Court concluded that providing grand jury materials to Congress to help with congressional investigations was a historical practice and evinced a ‘common law tradition’. Regarding its use in impeachment proceedings though was a rarity and evidenced only twice during impeachment investigations of presidents and thrice in case of federal judges. In the Court’s opinion, this established practice, thus, deserved ‘significant weight’ [p. 14].
Specifically on the second requirement to establish a ‘particularized need’ prior to seeking grand jury materials from DOJ, the Court relied on three conditions required to be demonstrated as per the standard laid down in Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979):
Importantly, the standard laid down by Doughlas Oil was construed to be flexible and dependant on the context. In arriving at a conclusion, the Appellate Court noted that District Court fulfilled the criteria above, as (i) only those materials were released that were stated or cited in the Mueller report, (ii) the need for continued secrecy was reduced by the Appellants’ adoption of special protocols to prevent access to grand jury materials to keep them private, and (iii) the Appellants ‘particularized need’ in the impeachment process was established as it needed those materials to reach a final determination on the question of impeachment. Grand jury materials were also useful to dispel falsities or inconsistencies in witness testimonies during the impeachment inquiry process and was another ‘compelling reason’ denoting Committee’s need. [p. 17]
It is worthwhile to mention that the Court adopted a wide interpretation of the discretion available with a Judge while ordering disclosure, relying on United States v. John Doe Inc I, 481 U.S. 102, 116 (1987). Further, the claim by the Defendant that the District Court should have done a ‘redaction-by-redaction’ analysis was rejected on this ground, as District Courts were required to hand off evidences to the Congress without micromanaging them. A full access by the Congress to consider all relevant evidence was helpful in establishing the confidence of the people in the process (citing Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974), In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F.2d 1438 (11th Cir. 1987)). As a result, an application of the ‘particularized need’ test in the manner above avoids second guessing Congress’s need for evidences in the process of impeachment. The findings of the Appellate Court were consistent with its application of the separation of powers doctrine, as doing so keeps the Senate process independent.
In view of the Court, the circumstances in the present case reduced the risk of a ‘public ridicule’ on account of the widespread public knowledge about Mueller’s investigation [p. 21].
It was also an observation by the Appellate Court that the request of the materials by the Appellants was ‘limited and structured’, inasmuch as it was necessary to ‘assess the implications of any difficult issues’ for the Committee’s enquiry into obstruction of justice [p. 23]. Consequently, in the absence of any ‘obvious’ reason cited by DOJ on the need for redacted parts of the report by the Committee, no clear reason remained to restrict access. The Court was, nevertheless, cautious in overreaching application of its conclusion, highlighting that a further investigation is necessary in cases where the link between grand jury materials and impeachment investigation is not established.
In a separate but concurring opinion, Judge Griffith addressed the competency of the District Court to compel disclosure of grand jury materials, particularly in the light of the recent case Committee on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Feb. 28, 2020) involving a similar application for access to grand jury records. Concluding that the traditional supervisory power of the District Court is broad, he noted that grand jury records did not belong to executive branch which allowed the Court to compel disclosure of such materials.
It is, however, interesting to mention Judge Rao’s dissenting opinion in this case. As against the majority opinion, she observed that there were crucial distinctions between two actions of the District Court, i.e. firstly, an authorization of disclosure of materials to the Appellant and second, its order on the Defendant to release those materials to the Appellant. Accordingly, a judicial order compelling action by an executive branch was an exercise of Article III power, thereby requiring a litigant to meet those constitutional requirements additionally.
While she agreed that there was no abuse of discretion by the district court in authorizing disclosure of the grand jury materials and that senate impeachment trials constituted ‘judicial proceedings’ for the purposes of Rule 6(e), she dissented on the fact that the District Court was entitled to order the Department (as part of the executive) to take action. Accordingly, she noted that the Appellant had no legal standing to enforce its request for grand jury materials against the DOJ, as the Appellant being a third party, ‘there is no longstanding tradition of courts ordering disclosure of grand jury materials to third parties’ [p. 47].
Perhaps more importantly, Judge Rao’s opinion is important as she mentions that the District Court and executive branch (i.e. government attorneys) have a shared responsibility in maintaining secrecy of grand jury materials and maintaining disclosure. In this way, they play together a ‘a gatekeeping and supervisory role’, while one (District Court) lifting grand jury secrecy, the other (executive branch attorneys) disclosing the materials [p. 45].
Judge Rao also suggested that with the subsequent developments occurring in the impeachment case (specifically the vote of the House in favour of two articles of impeachment and acquittal by Senate of President Trump), the Court should remand the case to the District Court ‘to address whether authorization is still warranted’ [p. 36] Judge Rao also commented on the validity of the Appellant’s application, as the Committee on the Judiciary may no longer have a ‘particularized need’ for disclosure [p. 36]. The dissent of Judge Rao was addressed, in parts, by Judge Rogers in his concluding paragraph, who noted the distinction as not relevant as not being raised by either 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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands expression. In prioritizing compelling need of the Committee over the grand jury secrecy, the Court provided access to materials to enable a final determination to be made in the case. The case is a crucial example of the importance of the right to information in similar scenarios warranting determination against privacy interests of the State. Notably, the Court’s conclusion on precedential history of non-refusal of the Court to provide access to grand jury materials in cases of misconduct and impeachment is an important highlight of the case, as it underscores the importance of free information flow in discharge of the duties of the both the Executive and the Judicial arms of the government.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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