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. ┬áThe 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.