What to Expect in the Battle Over the Mueller Report’s Grand Jury Material

For one, Congress will score some victories.
by Kim Wehle
April 8, 2019
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(Photo by Alex Wong/Getty Images)

On Friday, the Court of Appeals for the D.C. Circuit issued a decision in McKeever v. Barr that Politico claims “tossed an obstacle in the way of grand jury information in special counsel Robert Mueller’s final report being released directly to the public.”

Not so fast.

The plaintiff, Stuart A. McKeever, is a historian who sought access to grand jury records for a book he was writing. The D.C. Circuit panel answered “no,” citing Rule 6(e) of the Federal Rules of Criminal Procedure.

It is true that Rule 6(e) generally keeps grand jury material secret. But it also allows courts to disclose information collected by the grand jury if certain exceptions are met, including “in connection with a judicial proceeding.”

The question in McKeever was whether the list of exceptions is exhaustive, or whether courts have the inherent power to add on to that list—in that case, in order to allow McKeever to research the 1956 disappearance of a Columbia University professor and critic of Dominican Republic dictator Rafael Trujillo. The 2-1 majority ruled there was no “judicial proceeding” that justified release of 60-year-old grand jury information.

But before we spin this decision into a black-and-white edict on the releasability of the Mueller report, consider these four legal takeaways. They have to do with the Justice Department’s inevitable redactions of grand jury material, and the looming court battle over them.

1) Through their subpoena power, grand juries collect records in addition to hearing witness testimony, and the documentary stuff is harder to keep secret.  

Courts have held that Rule 6(e) “is intended only to protect against disclosure of what is said or takes place in the grand jury room”—not to “foreclose from all future revelation of proper authorities the same information or documents that was presented to the grand jury.”  Congress—and the public—have a strong argument that the documentary evidence collected by Mueller’s grand jury must see the light of day.

This is not insignificant (think: emails between President Trump and his advisers about the Mueller investigation, or between Trump campaign officials and Russians regarding the 2016 presidential election).

2) There is legal authority for authorizing release of grand jury material in the public interest, particularly if Congress makes the request.

The Mueller investigation was unprecedented and extraordinary, and goes to the very heart of whether there is accountability at the highest levels of office in a functioning American democracy. In light of DoJ guidance forbidding indictment of a sitting president, the only feasible check on a president is through the political process. Which requires that the public learn what went on inside the White House insofar as attempts to obstruct justice.

In a case called Haldeman v. Sirica, the D.C. Circuit held in 1974 that the House Judiciary Committee was entitled to see grand jury evidence from President Nixon’s special prosecutor in connection with its impeachment authority. That case was brought before the D.C. Circuit on what’s called a writ of mandamus—a virtually-unheard-of lawsuit against the federal judge from the lower court who authorized release of the grand jury material. In denying the writ, the higher court rejected the very argument accepted in McKeever—that Rule 6(e) has an airtight list of exceptions. With respect to the Nixon probe, Congress got the “sealed report and accompanying grand jury evidence.”

In the investigation of President Bill Clinton, moreover, the final report prepared by Whitewater Independent Counsel Kenneth W. Starr was immediately and fully made public. It included more than 3,000 pages of grand jury material, including sexually explicit and embarrassing details on unindicted individuals such as former intern Monica Lewinsky, as well as the president’s own grand jury testimony. In a July 7, 1998, order from the D.C. Circuit, the court authorized Starr to disclose matters occurring before the grand jury “for purposes of Federal Rule of Criminal Procedure 6(e)(3)(i)”—on the rationale that Starr needed to do so in order to perform his statutory duty as independent counsel.

Some have argued Congress needs to begin impeachment proceedings in order to fall within Haldeman and these historical precedents. But that’s probably an overstatement. A decision by the House of Representatives regarding whether to trigger the impeachment process is part of that very process, so it’s not clear where the line for disclosure in the public interest should be drawn today.

3) Congress created the grand jury confidentiality rules and has the power to amend them.

Rule 6(e) is not in the Constitution—it amounts to a federal statute passed by Congress. Congress can amend it to allow release of the full Mueller report. Indeed, a statute governed the Starr probe. That statute expired, and was replaced by an internal DoJ regulation which can be overridden by Congress. Of course, with a Republican-led Senate, such legislation would be dead on arrival.

But we have a big election coming up in 2020. Who knows where the power will shift at that point.

4) Grand jury secrecy rules do not apply to write-ups of FBI witness interviews.

Presumably, lots of witness testimony was gathered in the Mueller investigation without using the grand jury. FBI agents interview people all the time (recall the torrid mini-probe of witnesses to now-Justice Brett Kavanaugh’s high school happenings). When they do, they often produce a report that’s known as a “302.” Those documents are important to investigators, as they may be the only contemporaneous accountings of key witness interviews.

Members of the public can request copies of 302s from DoJ under the Freedom of Information Act (FOIA). Judges can keep 302s secret pursuant to FOIA’s own list of exceptions, but the presumption here is in favor of disclosure—precisely the opposite of the secrecy fallback that applies to grand jury information.

Where does all this leave things?

So far, what the public has seen from Attorney General Barr’s summary of the Mueller report is akin to a Wikipedia page about  Moby Dick. Certainly, there is much more to be learned from the reading the full thing cover-to-cover. As we await the larger “reveal,” my own tempered prediction is this: The information that the public needs to know in order to cast informed votes in November 2020 will eventually come out.

The question is whether that happens in time for democracy to actually work.

Kim Wehle

Kim Wehle is a contributor to the Bulwark, a professor at the University of Baltimore School of Law, a former assistant U.S. attorney, a former associate independent counsel in the Whitewater investigation, a CBS News legal analyst, and a contributor to the BBC. Her book, How to Read the Constitution and—Why, will be published in June. Follow her on Twitter @kim_wehle.