Local Rule 57.7 regarding Pretrial Publicity and the Release of the Mueller Report

The Justice Department has filed this “Government’s Notice Regarding Report of the Special Counsel” in the pending criminal case against Roger Stone.  The notice informs Judge Amy Berman Jackson that among the redactions to the Mueller report are “redactions made in consideration of Local Rule 57.7(c) and the Court’s order so that the public release of the Special Counsel’s report as redacted does not pose either a ‘substantial likelihood of material prejudice to this case’ . . . or a ‘reasonable likelihood ‘ of ‘interfer[ing] with a fair trial or otherwise prejudic[ing] the due administration of justice.'” Although information regarding the Stone prosecution will be redacted from the version of the Mueller report released to Congress and the public on April 18, however, the notice informs the court that the Justice Department “plans to make available for review by a limited number of Members of Congress and their staff a copy of the Special Counsel’s report without certain redactions,” including those related to the Stone case.

Local Criminal Rule 57.7 restricts public dissemination of information by attorneys involved in criminal cases where “there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the administration of justice.” It also authorizes the court “[i]n a widely publicized or sensational criminal case” to issue a special order governing extrajudicial statements and other matters designed to limit publicity that might interfere with the conduct of a fair trial (Judge Jackson issued such an order in the Stone case on February 15, 2019).

The Justice Department’s theory is that the public release of the Mueller report, to the extent it contains information relating to the Stone prosecution, could be considered a violation of the local rule and/or the court’s order. It further suggests that providing this information to Congress in a manner in which Congress could make the information publicly available also could be considered a violation.

DOJ advanced a similar theory in connection with the terrorism prosecution of Zacharias Moussaoui. The congressional joint inquiry into the 9-11 attacks intended to hold a hearing at which witnesses, including ironically then-FBI Director Robert Mueller, would be questioned about matters such as the process by which the FBI conducted its investigation of Moussaoui. DOJ contended that such questions in a public hearing would violate Rule 57.7 and sought to persuade Judge Brinkema that she should in essence prohibit any such questioning (by preventing Mueller or other government witnesses from answering) in a public hearing.

DOJ’s request was properly rejected by Judge Brinkema. As the joint inquiry pointed out, Rule 57.7 explicitly provides that nothing in it is intended “to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies.” Moreover, any interpretation of the rule that allowed the court to interfere with congressional proceedings would raise serious separation of powers issues.

For similar reasons it is debatable whether either the rule or the court’s order pursuant to it would provide a lawful basis for restricting congressional access to the Mueller report (or perhaps the redaction of material from the report in the first place). Nevertheless, the Department’s proposal that members and staff first be given limited access to a less redacted version of the report is a common sense approach to the problem (and, of course, is similar to the Freeh/LaBella procedure we have previously discussed). If, following this initial review, Congress requests copies of a less redacted version of the report, DOJ will “seek guidance” from the court on this request.

It is important to note that the “less redacted” version of the Mueller report will “include,” but not be limited to, portions of the report related to the Stone case. One can infer that DOJ is prepared to negotiate with Congress about which redactions can be “unredacted” (that’s probably not an actual word) for purposes of review by designated members/staff. This suggests to me that the Department understands that eventually Congress will be given an opportunity to see a mostly if not entirely unredacted version of the report and to make its case to some judge (whether Judge Jackson in the Stone case, Chief Judge Howell as the supervising authority for the grand jury or Judge Walton who is hearing the FOIA case) as to why it needs that version of the report.

In other words, we are moving closer to a Freeh/LaBella solution to the redaction controversy.

Emoluments Clause Litigation Status Report

When we last left the emoluments clauses, Judge Messitte, U.S. district judge for the District of Maryland, had just issued a ruling in District of Columbia v. Trump, holding that the plaintiffs (DC and Maryland) had standing to sue the president for his alleged violations of the foreign and domestic emoluments clauses. As we observed at the time, the standing theory adopted by the court, based on the premise that these violations were advantaging the Trump Hotel in DC at the expense of competitors such as the Four Seasons and Ritz Carlton, seemed strained, to put it mildly. We also noted that although the court thus far had only addressed standing, “[a]t points it appears to have already decided the merits” against President Trump.

Sure enough, in July 2018 Judge Messitte issued an opinion adopting a broad view of the term “emolument” as extending “to any profit, gain, or advantage, of more than de minimis value, received . . . directly or indirectly, from foreign, the federal, or domestic governments [including] profits from private transactions, even those involving services given at a fair market value.” Memorandum Opinion of 7-25-18 at 47. Although ostensibly Judge Messitte merely denied the president’s motion to dismiss, he effectively decided the case in favor of the plaintiffs since there is no dispute that foreign and domestic governments have patronized the Trump Hotel during the Trump administration, which is all that is required to establish an emoluments violation under the court’s theory. Not surprisingly then, the president’s lawyers sought to stay discovery and take an interlocutory appeal and, when Judge Messitte denied these motions, sought a writ of mandamus in the Fourth Circuit (about which more in a moment).

Two other emoluments suits against Trump also remain pending (hat tip: @SethBTillman). In Blumenthal v. Trump, a suit brought by members of Congress in the U.S. district court for the District of Columbia, Judge Sullivan denied the president’s motion to dismiss for lack of standing but deferred decision on other issues, including the president’s contention that the plaintiffs had failed to state a claim upon which relief may be granted. The district court as of yet has apparently not ruled on the remainder of the motion to dismiss (which was argued nearly a year ago), nor upon Trump’s motion to certify the court’s ruling on standing for interlocutory appeal. No discovery is occurring while these legal motions are pending.

The third case is CREW v. Trump, a suit filed in the U.S. district court for the Southern District of New York. The district judge in that case dismissed for lack of standing. The plaintiffs appealed to the Second Circuit, which heard argument in October 2018. No decision has yet been issued. Continue reading “Emoluments Clause Litigation Status Report”

Barr on Grand Jury Redactions

I have not watched most of Attorney General Barr’s testimony over the past couple days, but I gather from clips and reporting that he has made a few remarks regarding grand jury material redactions from the Mueller report. I have a few brief comments on these statements.

First, Barr notes, correctly, that under the Mckeever decision no grand jury material can be provided to Congress or the public except pursuant to one of the express exceptions set forth in Rule 6(e). He also indicates he does not see at the moment that any of those exceptions apply. He suggests, however, a willingness to discuss 6(e) redactions once the report is released, specifically with regard to any redactions that might be material to understanding the report or its conclusions.

Barr mentions the possibility of “workarounds” with regard to the redacted material. By this he might mean providing non-grand jury material that would provide the needed context or substantiation to substitute for whatever was redacted. He also may be leaving open the possibility of seeking permission from the court to release 6(e) material, although he appears disinclined to go that route at the moment.

Barr made one comment of potential legal significance. With regard to grand jury material in the report to Congress by independent counsel Ken Starr, Barr suggested that this was immaterial to the current circumstances because Starr was operating pursuant to a statute that “overrode” the provisions of Rule 6(e). Barr here is referring to 28 U.S.C. § 595(c), discussed in my prior post, which provided “[a]n independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.”

Barr is correct that in Starr’s view § 595(c) overrode the requirements of grand jury secrecy. As explained in Starr’s report to Congress (see note 18), however, out of an abundance of caution he also sought express authorization from the Special Division to disclose grand jury material. The Special Division then authorized Starr to release grand jury material and provided “this authorization constitutes an order for purposes of Federal Rule of Criminal Procedure 6(e)(3)(C)(i) permitting disclosure of all grand jury material that the independent counsel deems necessary to comply with the requirements of § 595(c).”

The Special Division’s order does not say that section 595(c) overrides the requirements of grand jury secrecy. It may or may not have agreed with Starr on this point. By issuing an order pursuant to the “judicial proceeding” exception, however, the panel indicated that Starr’s disclosure was also justified under that exception, presumably because it was “preliminarily to” the “judicial proceeding” of impeachment.

Of course, it is impossible to know from the Special Division’s brief order what role section 595(c) played in its decision to invoke the “judicial proceeding” exception. It may have believed, for example, that section 595(c) effectively gave the independent counsel the authority to decide what materials were necessary for the House to receive. (That Starr’s application to the Special Division is still under seal makes it particularly difficult to discern the panel’s thinking on this). Nevertheless, it is hard to see how its order makes sense unless impeachment is the “judicial proceeding” on which it was based. This in turn indicates that a disclosure can be “preliminarily to” an impeachment proceeding even if no impeachment inquiry has yet been formally initiated.

It should also be noted that the Freeh/LaBella disclosure was not made pursuant to section 595(c). Although it is possible that the Justice Department could attempt to distinguish that disclosure on the grounds that an impeachment inquiry was underway (although on a different subject than that of the disclosure), there is nothing in the language of Rule 6(e) or in any of the relevant precedents to suggest that this is a material distinction.

In short, if Barr is merely suggesting that the absence of section 595(c)’s reporting requirement makes it inappropriate to seek here the kind of blanket authorization to disclose grand jury material received by Ken Starr, he makes a reasonable point. If, on the other hand, he is arguing that Chief Judge Howell would be without power to order disclosure of grand jury material in the Mueller report because of the absence of a “judicial proceeding,” he is in my opinion mistaken.

The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report

On its face, Friday’s D.C. Circuit decision in McKeever v. Barr, involving a historian’s request for access to grand jury materials from 1957 for purposes of a book he is writing, might seem to have little relevance to redactions in the Mueller report. In fact, however, the decision turns on the court’s interpretation of a 1974 precedent in which Chief Judge Sirica authorized “disclosure of a sealed grand jury report to aid in the inquiry by the House Judiciary Committee into possible grounds for impeachment of President Nixon.” McKeever, majority slip op. at 9 n. 3; see In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C. 1974). More precisely, it turns on the McKeever court’s interpretation of the D.C. Circuit’s 1974 en banc interpretation of Judge Sirca’s decision. See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc).

As explained below, this decision is potentially  significant with respect to the Mueller report.

The McKeever majority ruled that judges lack inherent authority to disclose grand jury materials protected by Fed. R. Crim. P. 6(e) outside of the express exceptions set forth in that rule. Acknowledging the court’s decision in Haldeman was ambiguous on this point, McKeever construed Haldeman as approving Judge Sirica’s disclosure on the grounds that a House impeachment inquiry is a “judicial proceeding” for purposes of Fed. R. Crim. P. 6(e)(3)(E)(i), which is one of the explicit exceptions to grand jury secrecy set forth in the rule. McKeever, majority slip op. at 9 n. 3. It therefore concluded Haldeman did not stand as a precedent in favor of a court’s inherent authority to release grand jury materials.

Judge Srinivasan dissented in McKeever. While he noted that the “judicial proceeding” exception to Rule 6(e) “arguably applied” to the release of a grand jury report to Congress in connection with an impeachment investigation, he did not interpret Judge Sirica’s decision as relying on that exception. Instead, in Judge Srinivasan’s view the best reading of the en banc opinion in Haldeman was that it approved Judge Sirica’s exercise of inherent authority to release the report. See McKeever, dissent slip op. at 2-5.

Whatever one’s evaluation of the relative strengths of these positions, the majority opinion in McKeever is, at least for the moment, the controlling law in the D.C. Circuit. Thus, Congress cannot now ask the district court to release grand jury material in the Mueller report based on the court’s inherent authority. The Justice Department likewise could not support such a request even if it agreed with it (which it clearly would not, given that DOJ urged the narrow reading of the court’s authority adopted by the McKeever majority).

This does not mean, however, that Congress has no options for obtaining access to grand jury material in the Mueller report. It merely means that any disclosure to Congress must be pursuant to one of the express exceptions to grand jury secrecy listed in Rule 6(e).

Continue reading “The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report”

A Proposal for Dealing with Mueller Report Redactions

In our political culture of contempt and pervasive paranoia, it is hardly surprising that Attorney General Barr’s refusal to release immediately the unreacted Mueller report has led many to accuse him of a coverup. So while I agree with Ben Wittes that everyone should chill out and wait to see what Barr actually produces in the next week or so, the reality is that any redactions will raise suspicions.

Fortunately, there is a relatively simple way to address this problem. The idea comes from the impeachment proceedings against President Clinton in 1998. The House Judiciary committee, which was reviewing the allegations against Clinton in the Starr report, wanted access to the Freeh and LaBella memos, internal Justice Department documents that recommended appointment of an independent counsel to investigate campaign fundraising violations during the 1996 presidential election cycle. The Justice Department took the position that these memoranda could not be shared with Congress because, among other reasons, they contained grand jury material protected under Fed. R. Crim. P. 6(e). (It would later turn out DOJ had been rather overly enthusiastic about designating grand jury material, including for example a quote from a Dick Morris book).

In light of the impeachment investigation (and the associated political pressure from Congress), the Clinton Justice Department agreed to ask the judge supervising the grand jury, Chief Judge Norma Holloway Johnson, to allow the committee access to the memoranda. After a couple of attempts (the committee, through House counsel, had to file its own motion after the court denied DOJ’s first request), Judge Johnson agreed to allow the committee limited access to the memoranda. As Peter Baker described the court’s decision: “Each side could send a single staff member to read the memos, but no copies could be made and no notes taken.” Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton 183-85 (2000). That way the committee would have a basis for requesting any additional material it believed was relevant to its proceedings (it ultimately did not do so).

A similar process could be used to deal with redactions from the Mueller report. The court could permit two Judiciary committee staffers (one majority, one minority) to review the unreacted report. They would be prohibited from taking notes or disclosing the contents of the report publicly. If, however, there were redactions the committee believed to be improper or to contain important information, it could ask the court to release that information.

This seems like a reasonable way for protecting any legitimate Justice Department interests while reassuring the public that the attorney general is fulfilling his promise of maximum transparency.