On April 5, the U.S. Court of Appeals for the D.C. Circuit ruled in McKeever v. Barr, a case concerning the court’s power to release material protected under grand jury secrecy. Its opinion, which holds that a district court lacks inherent authority to disclose the grand jury records, may make it more difficult for those who have called upon Attorney General William Barr to release Special Counsel Robert Mueller’s report to obtain its full and unredacted findings.
The principal question before the court was whether Federal Rule of Criminal Procedure 6(e)—which prohibits disclosure of any “matter occurring before the grand jury” by attorneys for the government—presents an exhaustive list of exceptions to the rule of grand jury secrecy, or whether a district court has the inherent authority to disclose grand jury materials in situations outside those exceptions. In McKeever, the D.C. Circuit reviewed a decision by the District Court for the District of Columbia, in which it asserted that it had the “inherent supervisory authority” to disclose grand jury matters that are historically significant, yet denied appellant McKeever’s specific request as overly broad. The D.C. Circuit held that district courts may disclose grand jury materials only where they have positive authority to do so—particularly through the exceptions to grand jury secrecy listed in Rule 6(e).
The case is immediately relevant to the ongoing political struggle over full access to the Mueller report. A significant amount of evidence contained in the report is likely to have been collected through grand jury proceedings; in fact, grand jury evidence has already played an important role in a number of the prosecutions the special counsel’s office conducted. Under Department of Justice regulations, Barr can publicly release as much of the report as he deems appropriate, but the court’s holding in McKeever may force Barr to redact any grand jury material in the report.
The Court’s Reasoning
The panel was divided, with Senior Judge Douglas Ginsburg writing the majority opinion for himself and Judge Gregory Katsas. Judge Sri Srinivasan dissented.
The court begins its opinion by describing the “vital interests” that the rule of grand jury secrecy seeks to protect, and upon which the proper functioning of the grand jury system depends: “(1) preserving the willingness and candor of witnesses called before the grand jury; (2) not alerting the target of an investigation who might otherwise flee or interfere with the grand jury; and (3) preserving the rights of a suspect who might later be exonerated.”
In a footnote, the court briefly addresses McKeever’s legal standing to bring the case, which elicited a number of questions from the panel during oral argument. Although the records at issue in this case were transferred from the Department of Justice to the National Archives, the court writes, the Justice Department still has legal control over them, so a court order directing the attorney general—whom McKeever sued—to release the material would redress McKeever’s alleged injury.
The opinion next turns to the court’s interpretation of the text of Rule 6(e), which appears to be the controlling factor in its holding. It explains that the rule’s instruction “that persons bound by grand jury secrecy must not make any disclosures about grand jury matters ‘[u]nless these rules provide otherwise,’” in Rule 6(e)(2)(B) must be read together with specifically enumerated exceptions to the secrecy requirement in Rule 6(e)(3). Read together, the court states, Rules 6(e)(2)(B) and (3) “explicitly require secrecy in all  circumstances” other than the specifically listed exceptions.
The court then offers contextual support for its conclusion that such a construction is proper. First, it points to the specificity of the enumerated exceptions, which the court determines is the product of carefully considered policy judgments of the Supreme Court, which crafted the rule, and Congress, which adopted it. It also points to an example of a Federal Rule of Criminal Procedure that lists exceptions that are permissive, rather than exclusive, suggesting the Supreme Court and Congress intended not to design a similar scheme to regulate grand jury material. The court notes that a contrary reading of the rule would “impermissibly enable the court to ‘circumvent’ or ‘disregard’ a Federal Rule of Criminal Procedure.
The court next looks for support for its interpretation in judicial precedent. While acknowledging that the Supreme Court has not directly addressed the issue before it, the court reads prior Supreme Court cases to “cast grave doubt upon the proposition that the district court has authority to craft new exceptions.” In particular, the court points to language in cases including Pittsburgh Plate & Glass Co. v. United States, United States v. Sells Engineering, and United States v. Baggot indicating that the Supreme Court views the Rule 6(e) exceptions as exclusive.
The court similarly interprets its own precedent as requiring it to “hew strictly to the list of exceptions to grand jury secrecy.” In a lengthy footnote, it addresses perhaps the most powerful case marshalled by McKeever in support of his position: Haldeman v. Sirica. In Haldeman, the D.C. Circuit upheld the decision of Chief Judge John Sirica of the U.S. District Court for the District of Columbia to disclose sealed grand jury records relating to the Watergate investigation to the House Judiciary Committee outside of the strict bounds of Rule 6(e). In McKeever, the court attacks the rationale of the Haldeman majority as “ambiguous” for expressing only “‘a general agreement’ with the district court’s decision.” In order to reconcile Haldeman with its holding in the case before it, the court explains that the disclosure in Haldeman was permissible not because of any inherent authority of the court to release the records, but because it actually fell within an express exception to the rule of grand jury secrecy —that for “judicial proceedings.”
The court next considers McKeever’s other arguments. McKeever’s contention that district courts are not bound by the rule of secrecy because they are not listed as persons to whom it applies fails, the court writes, because the custodians of grand jury materials—attorneys for the government—are bound by the rule. For that reason, it is not necessary that district courts also be listed in the rule. Furthermore, the court states that grand jury materials are not “judicial records” because, while grand juries may act “under judicial auspices,” their relationship with the judicial branch is at arms-length.
Next, the court considers McKeever’s argument that Rule 6(e) did not displace the courts’ authority over grand jury materials at common law—a view adopted by some of the court’s sister circuits. But the court simply finds that stance impossible to square with the proper reading of Rule 6(e), because it would make the rule’s limiting phrase “unless these rules provide otherwise” ineffectual. The court acknowledges that this holding will put it at odds with the Seventh and Eleventh Circuits but appears unable to avoid the schism. It instead sides with the Sixth Circuit in declining “to craft an exception to grand jury secrecy outside the terms of the Rule.”
Finally, the court addresses policy arguments advanced by McKeever particular to the facts of this case. Maintaining secrecy is necessary to serving the “vital interests” of grand jury secrecy even in this case, despite the passage of time and likely death of all witnesses, because, the court fears, disclosure even decades after a witness’s testimony or even death might have a chilling effect on future witnesses, who may fear that their legacy will be tarnished or that their testimony will become the subject of a book. Maintaining secrecy is also key to preventing district courts from creating additional exceptions to grand jury secrecy—since a district court first claimed inherent authority to disclose grand jury material in In re Petition of Kutler, the court explains, there have been a steady stream of requests for disclosures.
Judge Srinivasan’s Dissent
Judge Srinivasan’s brief dissent focuses on Haldeman, which he reads as ratifying Judge Sirica’s decision to release grand jury material under the court’s inherent authority—counter to the majority’s understanding of Haldeman as upholding the district court’s ruling under the exception for judicial proceedings. Judge Srinivasan notes language in Judge Sirica’s opinion indicating that the chief judge understood himself to be acting outside the scope of Rule 6(e) exceptions: among other decisions, Judge Sirica cited the Second Circuit’s 1973 ruling in In re Biaggi, in which the court allowed disclosure of grand jury material despite finding that the judicial proceeding exception was “inapplicable.” Though Judge Sirica described the House Judiciary Committee as “a body that in this setting acts simply as another grand jury,” Judge Srinivasan writes, this description did not implicate the judicial proceeding exception but rather emphasized the low risk that the committee would inappropriately release sensitive information.
Judge Srinivasan therefore argues that the D.C. Circuit’s ruling in Haldeman affirmed Judge Sirica’s release of grand jury material under the court’s inherent authority to do so, even though Haldeman did not contain “meaningful analysis of Rule 6(e)’s terms.” He points to recent rulings by the Eleventh Circuit (in Pitch v. United States) and the Seventh Circuit (in Carlson v. United States), siding with them rather than the Sixth Circuit, as the majority does.
The question of what will happen with grand jury material contained in the Mueller report has assumed an even greater urgency in recent days. Calls for Barr to release the report have grown, while investigators in the special counsel’s office have suggested that the report’s findings are more troubling for President Trump that Barr’s initial four-page letter summarizing the report’s top-line conclusions let on. As the back-and-forth continues between the House Judiciary Committee and the Justice Department over the Mueller report, McKeever may take on an outsize importance.