In his March 29 letter, Attorney General William Barr informed the Chairs of the congressional Judiciary Committees that the report Special Counsel Robert Mueller delivered to Barr last month “is nearly 400 pages long (exclusive of tables and appendices) and sets forth the Special Counsel’s findings, his analysis, and the reasons for his conclusions.” Barr also promised that “[e]veryone will soon be able to read [the Mueller report] on their own,“ because he will provide it to Congress by mid-April, if not earlier — in other words, probably by the end of this coming week.
In each of his recent letters regarding the Mueller report Barr has made reference to a DOJ process of making redactions before the report can be shared with Congress. (In the March 29 letter, for instance, Barr stressed that “we” are “preparing the report for release, making the redactions that are required.”) This has led many observers to worry that the version of the report Barr delivers to Congress in the next few days will be woefully incomplete, and won’t adequately convey Mueller’s findings and analysis.
Perhaps. But there are at least three reasons to believe — or at least to hope — that the version of the report Barr gives Congress will not include many material redactions, and that those Barr does make will not significantly affect Congress’s and the public’s ability to fully understand and assess the results of Mueller’s investigation.
First, Barr has repeatedly committed himself to the greatest possible degree of transparency — which is as it should be, because the whole point of the AG notification requirement in the DOJ regulations is to address “[t]he interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel,” and “[t]o help ensure congressional and public confidence in the integrity of the process.”
In his initial letter notifying Congress of Special Counsel Mueller’s report, Barr stated that he is “committed to as much transparency as possible” with respect to that report. This was in keeping with Barr’s promise to senators in connection with his confirmation hearing that because “it is very important that the public and Congress be informed of the results of the Special Counsel’s work … my goal will be to provide as much transparency as I can consistent with the law, including the [Special Counsel] regulations, and the Department’s longstanding practices and policies.” Barr repeated this promise in his March 24 letter to the Judiciary Committees: Because of “the public interest in this matter,” Barr wrote,” “my goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.” And in his opening statement to the Senate Judiciary Committee in January, Barr offered the unequivocal statement that “I can assure you that, where judgments are to be made by me [about how to release the Mueller report], I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.” Barr has thus established a very demanding standard for his decisions here, one that presumably he’d be loath to disregard.
Second, in his March 29 letter Barr disclosed that Mueller himself “is assisting us in this process” of preparing the report for disclosure. I think it’s fair to assume that Mueller wrote the report with an eye to allowing the greatest possible transparency to Congress and the public. If that’s right, then Mueller presumably is urging DOJ to redact as little as possible, and internally arguing, where appropriate, that major redactions are not necessary. Barr is unlikely to reject Mueller’s recommendations and legal views absent very compelling counterarguments.
Third, when it comes to the “merits,” neither the law nor DOJ “policies and practices” ought to require extensive redactions of the Mueller report, particularly not with respect to those aspects of the report discussing President Trump and other government officials. To be sure, it’s possible that some citations to particular evidence might have to be excluded — at least in any version of the report that is released to the public — but it’s not obvious that such citations would preclude Barr from retaining all or virtually all of Mueller’s conclusions and analysis, at least in the version of the report that he submits to Congress.
In the remainder of this post, I’ll offer some tentative thoughts on the four categories of materials Barr has identified as possibly warranting redactions. The first two of those categories — grand jury matters and classified information — arguably implicate certain legal constraints, whereas the latter two — “[m]aterial that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices” and “[i]nformation that would unduly infringe on the personal privacy and reputational interests of peripheral third parties” — arguably implicate DOJ policies and practices.
The law shouldn’t be much of a barrier to robust disclosure to Congress, with two possible, but probably fairly minor, exceptions.
1. “Matters occurring before the grand jury”
The Justice Department has announced that each of the pages of Mueller’s report contains the warning “May Contain Material Protected Under Fed. R. Crim. P.6(e),” and Barr informed Congress that Mueller “issued more than 2,800 subpoenas,” presumably most if not all of which were formally issued by a grand jury. Therefore it’s not surprising that in his letters to Congress, Barr has repeatedly referred to grand jury information as the primary category of information that he’s busy redacting from the Mueller report.
Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure prohibits a government attorney, such as Barr or Mueller, from “disclos[ing]” “a matter occurring before the grand jury,” unless the Rules of Criminal Procedure provide otherwise.
Therefore Barr — with Mueller’s assistance — must now be asking two questions: (i) which portions of the Mueller report, if any, would “disclose a matter occurring before the grand jury”? and (ii) whether there are any exceptions that might nevertheless permit such disclosure, at least to members of certain congressional committees.
a. Coverage of “matters occurring before the grand jury” under Rule 6(e)
How much of the Mueller report might “disclose a matter occurring before the grand jury”? Probably much less than many people are assuming.
For starters, as Ryan Goodman and Andy Wright wrote here back in February, it’s entirely possible that significant parts of Mueller’s investigation — including perhaps the part focused on President Trump’s potential “obstruction of justice” and other actions undertaken while he’s been in office — occurred outside the aegis of the grand jury, in which case Rule 6(e) would not affect the portions of the report discussing those aspects of the investigation.
OK, but what about evidence that was presented to the grand jury, or that Mueller obtained pursuant to a grand jury subpoena?
Rule 6 does not itself define the phrase “a matter occurring before the grand jury,” nor explain what it means to “disclose” such a matter. Generally speaking, courts have read Rule 6(e) to prohibit any discussion or revelation by a covered attorney that would reveal to the audience what actually took place in the grand jury room. Obviously, then, an attorney generally may not disseminate transcripts of grand jury proceedings; documents marked as “summaries” of such proceedings; descriptions of the grand jurors’ deliberations or questions; or information that expressly identifies the grand jurors or that specifies persons as having been grand jury witnesses or “targets.”
However, the mere fact that information has been presented to the grand jury, or that a document has been considered or subpoenaed by a grand jury, does not in and of itself trigger Rule 6(e)’s confidentiality requirement. As the U.S. Court of Appeals for the D.C. Circuit has repeatedly emphasized, “Rule 6(e) does not ‘draw ‘a veil of secrecy … over all matters occurring in the world that happen to be investigated by a grand jury.’” Labow v. DOJ, 831 F.3d 523, 529 (D.C. Cir. 2016) (quoting Senate of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987), in turn quoting SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)); see also Bartko v. DOJ, 898 F.3d 51, 73 (D.C. Cir. 2018).
The “touchstone” for triggering Rule 6(e)(2)(B) is, instead, “whether the information sought would reveal something about the grand jury’s identity, investigation, or deliberation.” Labow, 831 F.3d at 529; accord Bartko, 898 F.3d at 73.
A government attorney therefore may, for example, disclose a document subpoenaed by a grand jury, or describe or cite to such a document, as long as he or she does so in a manner that doesn’t reveal that a grand jury subpoenaed or considered that document.
It’s quite possible that most of the evidence discussed in the Mueller report can be disclosed — or can at a minimum be cited as support for Mueller’s findings — without revealing whether a grand jury subpoenaed or considered it. And where that’s the case, Rule 6(e) does not require a redaction.
It’s important, in this regard, that Barr be careful not to redact information from the Mueller report he submits to Congress in the coming days on the mistaken ground that it was merely considered (or subpoenaed) by the grand jury, because if he does so the redactions themselves could reveal what otherwise might not have been apparent — namely, that the grand jury considered the evidence — if and when DOJ or a court later concludes that the material was not covered by Rule 6(e) and the information is “belatedly released” (Labow, 831 F.3d at 530). Such a mistake in the first instance might not bar later disclosure as a matter of law. See id. (“Of course, if the documents are now belatedly released, it might be apparent that they had been subpoenaed by a grand jury given that the potential connection with a grand jury is now known. That fact, however, should not bar disclosure.”) Even so, it would result in an unnecessary breach of grand jury confidentiality — a compelling reason for Barr not to err on the side of assuming Rule 6(e)’s application in cases where it does not clearly apply.
b. The Rule 6(e)(3)(D) exception
Even if some of the information in the Mueller report is covered by Rule 6(e), and thus Barr can’t disclose it to the public, it’s possible that Barr can nevertheless disclose such information to at least the members of certain congressional committees, pursuant to one of the exceptions in Rule 6(e) itself.
The second sentence of Rule 6(e)(3)(D) — an exception Congress added in 2004 — provides that “[a]n attorney for the government may … disclose any grand-jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.”
As far as I know there are no judicial decisions discussing who counts as an “appropriate” federal official under this exception. Based upon its plain words, however, the exception would appear to comfortably cover the members of the congressional intelligence committees, at a minimum (as well as the Senate and House leadership who are part of the so-called “Gang of Eight”), whose functions certainly include evaluating how the U.S. should “prevent or respond to” Russia’s “grave hostile threats.” It might also cover, e.g., the members of the judiciary and foreign affairs committees, assuming that they, too, are working to prevent or respond to the Russian threats.
If this reading is correct, then Barr can include “matter[s] occurring before the grand jury” in the version of the Mueller report he conveys to some congressional committees, even if (perhaps) not to the rest of Congress. If he does so, however, the members of those committees would not be free to disclose the “matter[s] occurring before the grand jury” to the public, because Rule 6 expressly provides that “[a]ny official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”
The fact that certain grand jury information might be shared with Congress but not made public is not as problematic, or as unprecedented, as it might appear at first. After all, the so-called Jaworski “Road Map” — a document created by the Watergate grand jury that consisted exclusively of information otherwise covered by Rule 6(e) — was provided to the House Judiciary Committee and was not thereafter shared with the public for almost 45 years, until Chief Judge Howell authorized its public release late last year. Needless to say, the Committee was able to put that road map to very effective use with respect to a sitting President even though it could not, and did not, share the document with the general public.
c. A possible “judicial authorization” exception?
Let’s assume that Barr redacts from the Mueller report some information that is (genuinely) covered by Rule 6(e), or shares such information only with certain committees (such as the intelligence committees) pursuant to the exception in the second sentence of Rule 6(e)(3)(D). In that case would there be any way for Barr also to share the information with other members of Congress, too? After all, Leon Jaworski shared the grand jury “road map” with the House Judiciary Committee, notwithstanding Rule 6(e), long before Congress enacted the Rule 6(e)(3)(D) exception.
Jaworksi was able to send the grand jury’s road map to the House Judiciary Committee only because Judge John Sirica authorized him to do so, in response to a request for such disclosure from Committee Chairman Peter Rodino on behalf of the Committee.
Citing the Sirica/Rodino precedent, several commentators have recommended that if Barr redacts from the Mueller report certain information that’s properly covered by Rule 6(e), the current House Judiciary Committee should make a similar request to the Chief Judge of the U.S. District Court for the District of Columbia, Beryl Howell, asking her to authorize Barr to disclose grand jury information to Congress.
Would Chief Judge Howell have the power to authorize such disclosure? There are two possible arguments that she would, but it’s not clear that either of them would be of much use in this case, at least not in the short run.
— “Inherent authority”
First, several courts of appeals have held that judges retain an “inherent authority” that they enjoyed before the enactment of Rule 6(e) to authorize government attorneys to disclose grand jury information to others in at least some compelling circumstances not expressly provided for in Rule 6(e). See Carlson v. United States, 837 F.3d 753, 761-67 (7th Cir. 2016), & cases cited therein. Indeed, as Judge Srinivasan explained on Friday, Chief Judge Sirica himself authorized disclosure of the Watergate “road map” to the Judiciary Committee based upon just such an “inherent authority” theory.
The Department of Justice’s current view, however, is that courts have no such inherent authority to stray from the specific exemptions for judicial authorizations listed in Rule 6(e)(3)(E), and yesterday a divided panel of the U.S. Court of Appeals for the D.C. Circuit agreed with the government in its long-awaited McKeever v. Barr decision, thereby creating a circuit-split that might wind its way up to the Supreme Court.
I tend to think that the predominant view in the courts of appeals — that judges do retain such an inherent authority — is correct; and I certainly agree with Judge Srinivasan that there was governing D.C. Circuit precedent to that same effect (Haldeman v. Sirica, 501 F.2d 714 (1974), involving the Sirica/Rodino/Jaworski case itself) that ought to have controlled the court’s decision in McKeever.
Be that as it may, however, now that the McKeever panel has ruled otherwise, Chief Judge Howell is not about to authorize Barr to disclose grand jury information to the congressional judiciary committees (let alone the public) on an “inherent authority” theory unless and until McKeever is overturned — and Barr himself surely won’t make a disclosure on the basis of such a theory unless and until the Supreme Court approves it in McKeever or another case, something that almost certainly won’t happen until the summer of 2020 at the very earliest (if it happens at all).
— “preliminarily to” impeachment proceedings
Even apart from “inherent authority,” however, Rule 6(e) itself affords a court the power to authorize disclosure of information revealing grand-jury matters “preliminarily to or in connection with a judicial proceeding” (Rule 6(e)(3)(E)(i)), and the McKeever majority yesterday implicitly approved of Judge’s MacKinnon’s view, in his concurring opinion in Haldeman, that the House’s consideration of articles of impeachment are a “judicial proceeding” for purposes of this exception. Accord In re Grand Jury Proceedings of Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75 (S.D. Fla.) (holding that House Judiciary Committee was entitled to receive the record of grand jury proceedings in furtherance of its impeachment investigation of Judge Alcee Hastings), aff’d, 833 F.2d 1438 (11th Cir. 1987). Indeed, the McKeever court held (see page 10 n.3) that that’s the proper reading of the court of appe