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).

Rule 6(e) Exceptions

There are three potentially applicable exceptions. First, under Rule 6(e)(3)(D), certain intelligence-related matters may be disclosed “to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official’s duties.” The next sentence of this exception allows “any appropriate federal . . . official” to receive grand jury information involving “a threat of attack or other grave hostile acts of a foreign power or its agents, 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 . . . for the purpose of preventing or responding to such threat or activities.”

Professor Marty Lederman suggests that members of Congress, such as those who serve on the intelligence committees, may qualify as “appropriate federal officials” for purposes of the latter part of this exception (though not as “intelligence,” “national defense” or “national security” officials mentioned in the former part). I tend to agree with Lederman on this. However, I suspect this exception will have little or no practical application to the Mueller report. If the special counsel were aware of information of the type discussed in the second sentence of Rule 6(e)(3)(D), he would have presumably disclosed it to Congress long ago. I doubt he would have saved it for his final report.

The second exception I mention only for purposes of completeness. Rule 6(e)(3)(C) provides “[a]n attorney for the government may disclose any grand-jury matter to another federal grand jury.” As Judge Srinivasan points out in his McKeever dissent, this provision was added after Judge Sirica’s 1974 opinion, which at one point described the House Judiciary committee as “a body that in this setting acts simply as another grand jury.” There might, therefore, be a colorable argument that the Justice Department could rely on this exception to provide grand jury information to the House Judiciary committee, at least if the committee is conducting a formal impeachment inquiry. I think it safe to say, however, there is little chance DOJ will embrace this interpretation and even less that it would rely on such an interpretation to provide grand jury material in the Mueller report to Congress.

This leaves the third relevant exception, which is far more promising in the current context than the other two. Under Rule 6(e)(3)(E)(i), a “court may authorize disclosure– at a time, in a manner, and subject to such other conditions that it may direct– of a grand-jury matter . . . preliminarily to or in connection with a judicial proceeding.” While some may question whether an impeachment proceeding qualifies as a “judicial proceeding” (indeed Chief Judge Howell did exactly that in footnote 4 of this 2018 opinion), McKeever settles that question (again, for the time being) in the affirmative. Thus, there is no doubt that a court (specifically Chief Judge Howell) may authorize disclosure to Congress (specifically the House Judiciary committee) of grand jury material in the Mueller report so long as it is “preliminarily to or in connection with” an impeachment proceeding.

The question then becomes whether a disclosure of the Mueller report under the current circumstances would have the prescribed relationship to an impeachment proceeding. In particular, is there some formal action that needs to take place before the court’s authority to order disclosure under the “judicial proceeding” exception is triggered? Examples of such triggers include: (1) introduction of an impeachment resolution in the House and its referral to the judiciary committee; (2) the committee’s opening of an impeachment inquiry on its own authority; and (3) the House’s adoption of a resolution directing the judiciary committee to open an impeachment inquiry.

Presumably (3) would suffice because that is what had happened in 1974 when Judge Sirica ordered the disclosure of the grand jury report. However, in the current Congress, although a resolution directing the judiciary committee to inquire whether the House should impeach President Trump has been introduced (H. Res. 257) and referred to the rules committee, it has not been adopted. Thus, condition (3) does not currently obtain. Neither does condition (2) as the judiciary committee has not commenced an impeachment inquiry. Condition (1), however, is satisfied because a resolution impeaching the president (H. Res. 13) has been introduced and referred to the judiciary committee.

There is a strong argument, however, that the “judicial proceeding” exception does not require a specific trigger so long as the court is satisfied that the disclosure is for use in an actual or potential impeachment proceeding. After all, the rule explicitly refers to a disclosure “preliminarily to” a proceeding, which means that the proceeding need not yet have been instituted. See United States v. Baggot, 463 U.S. 476, 479 (1983) (confirming this reading). Furthermore, the rule gives the court ample tools to control the method and conditions of disclosure, thus allowing it to ensure that the material will actually be used for the purposes contemplated by the rule. Thus, there is  little reason to demand some formal step toward impeachment before disclosure may be authorized.

This conclusion is bolstered by the Special Division’s action in 1998 when it authorized independent counsel Ken Starr “to deliver to the House of Representatives materials that the Independent Counsel determines constitute information of the type described in 28 U.S.C. § 595(c).” Section 595(c) was a provision of the now defunct independent counsel statute 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.”

At the time the Special Division issued this order, the House had not initiated an impeachment inquiry. Nonetheless, the panel provided that its “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).” Thus, the Special Division evidently did not believe it was necessary for the House to have taken any formal (or even informal) step toward impeachment in order to authorize disclosure under the “judicial proceeding” exception.

Professor Lederman suggests that the Special Division’s order may have been inconsistent with the Supreme Court’s ruling in Baggot, where the Court stated a proceeding must be “pending or anticipated” to qualify under the “judicial proceeding” exception. However, the Baggot Court focused on the “primary purpose of disclosure,” noting that the rule “contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated.” Unlike in Baggot, where the primary purpose of disclosure was not for a judicial proceeding but an IRS audit, the primary purpose of Starr’s disclosure was to determine whether the information constituted grounds for impeachment of President Clinton. This was a use directly related to an identifiable “judicial proceeding” and therefore seems to satisfy the Baggot requirements.

Chief Judge Norma Holloway Johnson’s order with respect to the Freeh/LaBella memos, discussed in my last post, likewise counsels against a strict or formalistic reading of Rule 6(e)’s “judicial proceeding” exception. At the time of her order, the House had instituted a formal impeachment inquiry, but that inquiry was focused on the Starr report, not the separate campaign finance issues discussed in the Freeh/LaBella memos. Moreover, Congress had been seeking access to these memos for non-impeachment purposes. Nonetheless, Judge Johnson, using the power to set conditions on disclosure under Rule 6(e)(3)(E), permitted limited disclosure so that the House Judiciary committee could make a determination whether the information in the memoranda was either relevant to its existing inquiry or provided grounds to expand that inquiry into additional areas.

In short, the McKeever opinion establishes that impeachment is a “judicial proceeding” for purposes of Rule 6(e)’s exception, and both the language o the rule and practice/precedent support a practical approach, such as proposed in my last post, to determining whether redacted portions of the Mueller report should be made available to the House Judiciary committee. Under that approach, the committee would obtain limited access to the unreacted report in order to determine whether it wishes to make a further request for disclosure pursuant to Rule 6(e)’s “judicial proceeding” exception. It should not be necessary to formally begin impeachment proceedings before the committee could obtain such limited access.

Of course, were DOJ to object to the proposal on the ground that no impeachment inquiry has been initiated, the House can always respond by passing H. Res. 257.