Rule of Law

US Solicitor Urges Supreme Court to Spurn Grand Jury Secrecy Challenge

The government argues the justices should defer to Congress or to the judiciary’s policy-making arm to determine whether and when trial judges have any power to compel the public release of grand jury records.

The Trump administration’s Justice Department wants the U.S. Supreme Court to turn away a researcher’s claim that federal courts have inherent authority to disclose secret grand jury records, a contention that looms more broadly as House Democrats fight to obtain grand jury evidence from the special counsel investigation.

The Justice Department is opposing Stuart McKeever’s petition that challenges a decision by a divided panel of the U.S. Court of Appeals for the D.C. Circuit. The appellate court ruled in April that district courts do not have inherent power to order the disclosure of grand jury materials.

McKeever, represented by Latham & Watkins partner Roman Martinez, has asked the justices to decide “whether district courts have inherent authority to release grand jury materials in extraordinary circumstances, such as when the case is historically significant and the public interest strongly favors disclosure.”

The government argued in its new brief at the Supreme Court that the justices should defer to Congress or to the judiciary’s policy-making arm to determine whether and when trial judges have any power to compel the public release of grand jury records. “Rulemaking would be a better forum than judicial review to address the policy judgments involved in deciding whether and when grand jury secrecy should expire, including for historically significant records,” Noel Francisco, the U.S. solicitor, wrote.

McKeever has been seeking copies of certain grand jury materials from the more than 60-year-old criminal prosecution of a former FBI agent believed to have been involved in the vanishing of Columbia University professor Jesus de Galindez from New York City in 1956. Separately, the U.S. Court of Appeals for the Eleventh Circuit is weighing a challenge there about access to decades-old grand jury records in a case that involved the lynching of two African American couples in Georgia.

The grand jury cases in the Supreme Court and Eleventh Circuit are unfolding as House Democrats prepare to argue in the D.C. Circuit that a Washington judge had authority to order the release of materials prepared by Robert Mueller III, the special counsel appointed to investigate Russia’s interference in the 2016 election.

U.S. District Judge Beryl Howell of the District of Columbia on Oct. 25 rejected the Justice Department’s argument that the rules controlling grand jury secrecy did not permit any disclosure of Mueller’s materials as part of the House impeachment inquiry. The D.C. Circuit, which earlier paused enforcement of Howell’s ruling, has scheduled arguments Jan. 3 on the government’s appeal.

Citing the D.C. Circuit’s McKeever decision, Howell turned down the House Judiciary Committee’s argument that it had inherent authority to release the Mueller grand jury materials and that “complete and absolute deference” was due to the House.

Douglas Letter, the House general counsel, has acknowledged that the original D.C. Circuit ruling in the McKeever case foreclosed the argument that trial judges have inherent authority to publicly release grand jury records. Letter, however, said in a court filing that if McKeever were subject to further review, the House “respectfully preserves” that argument.

McKeever’s reading of the federal rule, according to the D.C. Circuit, “would allow the district court to create such new exceptions as it thinks make good public policy.” Such ability, the appeals court said, would “impermissibly enable the court to ‘circumvent’ or ‘disregard’ a Federal Rule of Criminal Procedure.”

The D.C. Circuit decision created a conflict with several other circuit courts, Francisco told the justices, but the judiciary’s criminal-rules committee, and not the courts themselves, are better able to address the tension. The committee, Francisco said, could “provide clear standards for disclosure of historically significant grand jury records.”

Francisco noted that the Obama-era Justice Department in 2011 proposed changes to the rules committee that would permit trial judges to release, on their own, historically significant grand jury records. The committee declined to act on the government’s proposal.

Martinez of Latham & Watkins said the rules committee chose not to act on the proposals because it believed district courts already had that authority.

“There is an active circuit split right now,” said Martinez, who intends to file a brief replying to Francisco’s arguments. “The court regularly grants cert in cases involving interpretation of federal rules. Nothing would be gained by allowing the circuit split to fester.”

The Constitutional Accountability Center, represented by the chief counsel Brianne Gorod, has filed an amicus brief supporting McKeever in the Supreme Court.

“The grand jury is a centuries-old institution, and while there is a long tradition of maintaining the secrecy of grand jury deliberations, that practice has never been absolute,” Gorod told the justices. “To the contrary, there is a long history of grand jury materials being disclosed where courts concluded that the interests of justice required it.”

More from Rule of Law

Rule of Law
August 10, 2020

OP-ED: What a 1924 case from Montana says about dismissing the Flynn prosecution

The Washington Post
As the full federal appeals court in D.C. considers whether to order dismissal of the...
By: Dayna Zolle
Rule of Law
August 7, 2020

Don McGahn can be subpoenaed by House Dems, federal appeals court rules

The Washington Times
The full federal appeals court in D.C. ruled Friday that House Democrats have the authority...
Rule of Law
August 7, 2020

RELEASE: McGahn Ruling: Victory for Congress’s Power to Investigate

WASHINGTON – On news that the full U.S. Court of Appeals for the District of...
By: Elizabeth B. Wydra
Rule of Law
July 30, 2020

#PurpleChairChat Episode 6: Supporting the Next Generation of Constitutional Progressives

CAC’s President Elizabeth Wydra, Doug Kendall Fellow Clare Riva, and our current interns discuss their...
By: Elizabeth B. Wydra, Clare Riva, Simon Chin, Bardia Faghihvaseghi, Adaeze Eze, Jackson Skeen
Rule of Law
July 22, 2020

Trump’s Portland crackdown is controversial. The man spearheading it might be doing so illegally

The Washington Post
In Wednesday’s Washington Post, Nick Miroff and Matt Zapotosky dig into the Trump administration’s highly controversial —...
By: Brianne J. Gorod, By Aaron Blake
Rule of Law
July 10, 2020

With wave of major rulings, Roberts and Supreme Court emerge as powerful counterweight to Trump and Congress

The Washington Post
“It speaks volumes about the current political moment that Chief Justice Roberts and the court...
By: Elizabeth B. Wydra, By Robert Barnes