London is a retired partner for the law firm Paul, Weiss, Rifkind, Wharton & Garrison and the author of The Client Decides; he was a principal lawyer for Vice President Spiro Agnew.
Attorney General William Barr has announced he will turn over a redacted version of the Mueller report to Congress, with an explanation of his redactions. There are four categories of possible redactions. But the largest bucket was, interestingly enough, dramatically impacted by a decision of the D.C. Circuit earlier this week.
Rule 6(e) of the Federal Rules of Criminal Procedure requires officials to maintain the confidentiality of “matters” before the grand jury, subject to five exceptions set out in the rule. Given that Mueller’s team issued more than 2,800 grand jury subpoenas, if Barr chooses a literal application of the rule, he could redact much of the report. Congress would not get the important stuff, and Trump’s acolytes will appear to have succeeded in suppressing the truth and making a mockery of the Mueller investigation. How Barr handles this issue will be the acid test of his integrity—and, for one key reason, his common sense.
Ah, Richard Nixon: The President who keeps on giving, because his story may foretell the outcome here.
One of the five exceptions to Rule 6 permits a court to authorize disclosure of grand jury matters “preliminary to or in connection with a judicial proceeding.” In 1974, two of Nixon’s helpers, H. R. Haldeman and Gordon Strachan, challenged Judge John Sirica’s order that permitted the House Judiciary Committee, which was deciding whether to initiate Nixon impeachment proceedings, to see the grand jury material collected by Special Counsel Leon Jaworski.
Sirica dealt with the Rule 6 issue by applying that “judicial proceedings” exception, deciding that the House could have the material because it was “a body that in this setting acts simply as a grand jury.” As an aside, Sirica noted that “it seems incredible that grand jury matters should lawfully be available to disbarment committees and police disciplinary investigations and yet be unavailable to the House of Representatives in a proceeding of so great import as an impeachment investigation.”
The case was deemed so important that a six-judge panel of the D.C. circuit was enlisted to hear the appeal. That court unanimously affirmed Sirica’s decision, and the material went to the Judiciary Committee.
Fast forward to 2019. A historian named Stuart McKeever had previously sued to get grand jury minutes of a 40-year-old investigation for a book he was writing. The District Court held that he could get them if he slimmed down his request. That court said District Judges had “inherent power” to turn over grand jury material.
Surprising no one, Trump’s Department of Justice appealed and argued that District Judges have no such inherent power to release grand jury material, and the ability to do so to anybody was strictly limited to the exceptions stated in Rule 6. Therefore, the historian did not qualify. In McKeever v. Barr, the D.C. Circuit ruled in favor of the government 2-1.
The majority noted there was a split among the circuits on the question of whether the courts had “inherent power” to authorize release of grand jury material, but nonetheless ruled for the government on that issue. The dissenting judge relied in part on the Haldeman case. And most importantly for these circumstances, both of the judges in the majority dealt with that precedent by agreeing the House investigation “fit within the Rule 6 exception for ‘judicial proceedings.’ Doing so reads the case to cohere (agree), rather than conflict, with the Supreme Court and D.C. Circuit precedents … which both predate and postdate Haldeman.”
The bottom line? Nine D.C. Circuit Court judges—six in the Haldeman case, all three in McKeever—and one District judge have ruled that a House investigation preliminary to an impeachment inquiry qualifies as an exception to Rule 6, and authorizes a court to give the grand jury material to the House Committee.
Will Barr make the necessary Court application? Or will he stick with his Rule 6 redactions? That’s a matter of his good faith and his commitment to the rule of law. But it also seems pointless for him to fall on his Trumpian sword, because if he doesn’t make the Court application, House Judiciary Committee Chair Jerry Nadler will, and Nadler will win.