Rule of Law

OP-ED: How Congress Can Get Around a New Ruling That Threatens the Release of the Mueller Report

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in a case that doesn’t involve special counsel Robert Mueller or his investigation, but could have important implications for Congress’ ability to obtain information about Mueller’s findings.

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 candisclose 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.

Federal Rule of Criminal Procedure 6(e)(3)(E) identifies five specific circumstances under which a district court may release grand jury materials. According to the two judges in the majority in McKeever, those grounds are “exhaustive,” and district courts have no additional inherent authority to disclose grand jury materials outside of the rule. Specifically, the majority pointed to language from the rules stating grand jury materials must be kept secret “unless these rules provide otherwise” as well as to the specificity of the exceptions themselves, as reasons why it believed the rules do not permit other bases for disclosures. Because the historian who sought grand jury materials in McKeever did not claim that his request for grand jury materials fell within one of the enumerated reasons for disclosure in Rule 6(e)(3)(E), the D.C. Circuit held that the district court could not release the materials.

The D.C. Circuit’s decision is wrong—but it does not mean that Congress can’t obtain grand jury materials in the Mueller report.

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.

Indeed, the majority’s argument that the text of the rules eliminates district court judges’ inherent authority is unpersuasive. The language to which the court points—that grand jury materials must be kept secret “unless these rules provide otherwise”—appears in Rule 6(e)(2), which lists the persons who may not disclose grand jury matters, not Rule 6(e)(3), which lists the reasons that materials may be released. The list in Rule 6(e)(2) includes grand jurors themselves, attorneys for the government, and others. It notably does not include district court judges as persons who must abide by grand jury secrecy rules. This omission suggests that district court judges retain inherent authority to release materials that these other persons lack.

It is not surprising that the rules might identify some specific exceptions for when a district court judge may release grand jury materials without wiping out the court’s inherent authority to release materials on other bases. As the U.S. Court of Appeals for the 7th Circuit explained in a recent decision addressing this same issue, “it would be entirely reasonable for the rulemakers to furnish a list that contains frequently invoked reasons to disclose grand-jury materials, so that the court knows that no special hesitation is necessary in those circumstances,” while leaving intact the court’s inherent authority to release materials for other reasons.

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.

Thus, even if McKeever stands, Congress should be able to get grand jury materials—even portions of the Mueller report that count as grand jury materials—as part of its investigation into Russia’s interference in the 2016 election. And it should. Congress and the American people deserve to know more about what Mueller’s investigation uncovered, and these grand jury records could be a critical way to get that information.