Saturday, April 6, 2019

Court Ruling Implies That Barr Must Redact Grand-Jury Info from Mueller Report

Democrats will complain, but the attorney general can’t be faulted for following the law.

In disclosing the Mueller report, Attorney General William P. Barr will have to redact grand-jury information. That is the upshot of the ruling today by a divided panel of the U.S. Court of Appeals for the D.C. Circuit.

I flagged this case, now called McKeever v. Barr (formerly McKeever v. Sessions), last week. It did not arise out of the Mueller investigation, but it obviously has significant ramifications for the Mueller report — in particular, how much of it we will get to see.

At issue was this question: Does a federal court have the authority to order disclosure of grand-jury materials if the judge decides that the interests of justice warrant doing so; or is the judge limited to the exceptions to grand-jury secrecy that are spelled out in Rule 6(e) of the Federal Rules of Criminal Procedure? The D.C. Circuit’s McKeever ruling holds that the text of Rule 6(e) controls. Consequently, judges have no authority to authorize disclosure outside the rule.

This is significant for the Mueller report because Rule 6(e) does not contain an exception to secrecy that would permit disclosure to Congress.

The case involves a writer, Stuart McKeever, who was researching a book on the disappearance of Columbia University professor Jesús de Galíndez Suárez in 1956. It was suspected that Galíndez, a very public critic of Dominican Republic dictator Rafael Trujillo, was kidnapped and flown to the D.R., where he was murdered. In the course of a federal investigation, suspicion fell on John Joseph Frank, a former FBI agent and CIA lawyer, who later worked for Trujillo. Frank was eventually prosecuted for failing to register as a foreign agent but never charged with any involvement in Galíndez’s murder.

In 2013, for purposes of his research, McKeever petitioned the court for release of records of the grand-jury proceedings that led to Frank’s 1957 indictment. There is nothing in Rule 6(e) that would permit the veil of grand-jury secrecy to be pierced for an academic or literary research project. Yet the district judge asserted that federal courts have “inherent supervisory power” to disclose grand-jury materials, including those that are “historically significant.” Ultimately, however, the judge denied the petition, reasoning that it was “overbroad.”
McKeever appealed. In opposition, the Justice Department argued not only that he should be denied the grand-jury records, but also that the lower court had been wrong to claim authority to disclose the materials outside the strictures of Rule 6(e). The three-judge panel agreed with the Justice Department, in an opinion written by Judge Douglas H. Ginsburg (now a senior judge, appointed by President Reagan) and joined by Judge Gregory Katsas (appointed by President Trump). Judge Sri Srinivasan (appointed by President Obama) dissented).


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