INSIGHT: The Looming Litigation Buried in the Mueller Report

On the proverbial “back page” of the March 24 letter from Attorney General William Barr to the various congressional committee chairs regarding Special Counsel Robert Mueller’s report, Barr makes reference to Federal Rule of Criminal Procedure (6)(e).

While the media and political minds will be drawn to the “front page” news—substantive conclusions in the first few pages—the interesting and looming fight rests in what is referred to as “6(e)” material amongst federal prosecutors, as the restrictions on disclosure of secret grand jury material will no doubt cause a collision of all three branches of the government.

Won’t Be Easy

Interestingly, the decision and ability to get the information in the Mueller report released is not likely to be as simple as response to a congressional subpoena. As a “government attorney” within the meaning of federal rules, the attorney general does not have unlimited authority on what to share when it comes to “matters occurring before the grand jury.”

The scope of secrecy afforded to grand jury materials is broad. Church of Scientology Int’l v. DOJ, 30 F.3d 224, 235 (1st Cir. 1994). The ultimate authority on the grand jury process is the judiciary.

The phrase “matters occurring before the grand jury” comes from Rule (6)(e) and is a term of art that federal courts have, for years, been interpreting in a number of circumstances. With regard to the special counsel investigation, the attorney general’s cover letter notes that there have been, among other investigative efforts, “2800 subpoenas,” “500 search warrants” and “500 witness interviews.”

As the attorney general summarizes on Page 4 of his letter, he needs assistance from the special counsel to “identify all information contained in the report” that may be considered protected under Rule 6(e).

What Will Be Released?

The parsing of this report will be difficult, based on the likely length of the report, the extensive use of grand jury subpoenas interchangeably with search warrants and witness interviews, and the challenging and differing ways courts have interpreted “matters occurring before the grand jury.”

In most circumstances, information directly obtained pursuant to a grand jury subpoena and presented to a grand jury, or gained in actual testimony before a grand jury, will be protected. The “[i]nformation actually presented to the grand jury is core Rule 6(e) material that is afforded the broadest protection from disclosure.” In Re Sealed Case No. 99-3091, 192 F.3d 995, 1002 (D.C. Cir. 1999).

But even this protection is not absolute, as documents merely presented to the grand jury that were created or maintained for other reasons may be disclosed as long as doing so does not reveal “the inner workings of the grand jury.” United States v. Rosen, 471 F.Supp.2d 651, 655 (E.D. Va. 2007). This kind of rule and exception are ripe for challenge in the court system.

More indirectly, the reports of witness interviews—if those interviews were conducted following service of a grand jury subpoena and in connection with anticipated grand jury testimony—may be covered by Rule 6(e) even if those particular witnesses never testified in the grand jury.

The grand jury secrecy extends to “not only what has occurred and what is occurring, but also what is likely to occur,” including “the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” In re Motions of Dow Jones & Co., 142 F.3d 496, 500 (D.C. Cir. 1998) (internal quotation marks omitted).

As one court has noted, “No meaningful distinction can be drawn between transcripts and witness interviews conducted outside the grand jury’s presence but presented to it.” In re Grand Jury Matter, 697 F.2d 511, 512 (3rd Cir. 1982).

The Challenges

Again, these standards will likely be used by both Congress and the media to challenge assertions of grand jury secrecy by the Department of Justice.

Search warrant returns and affidavits are typically obtained outside of the grand jury process, so that material would usually not be protected by Rule 6(e). However, if the affidavit used to obtain the warrant relied on information subject to Rule 6(e), that information in the affidavit would also be protected. United States v. Index Newspapers, LLC, 766 F.3d 1072, 1085-86 (9th Cir. 2014) (“Rule 6(e) secrecy extends beyond grand jury transcripts and includes summaries and discussions of grand jury proceedings. See U.S. Indus. Inc. v. United States Dist. Court, 345 F.2d 18, 20–21 (9th Cir.1965).”)

Additionally, the material seized pursuant to the warrant may be considered matters before the grand jury unless it is based on a truly independent investigation. Anaya v. United States, 815 F.2d 1373, 1380 (10th Cir. 1987).

The act of simply presenting this material to the grand jury does not make it protected, but the information and how it was gained must itself be evaluated to determine if there is a compelling interest in maintaining some kind of secrecy.

It is likely that some information in the Mueller report came from an independent source and would not be protected. Lance v. DOJ, 610 F.2d 202, 217 (5th Cir. 1980) (“[T]he disclosure of information obtained from a source independent of the grand jury proceedings, such as a prior government investigation, does not violate Rule 6(e).”).

That possibility is one of the reasons the attorney general is going back to the special counsel for assistance, as those details would likely only be known by the special counsel and his team.

The Battle Begins

The fact that there are significant First Amendment considerations, and room for some discretion left to courts on what constitutes a “matter occurring before the grand jury” suggests that the determination by the attorney general with assistance from the special counsel will only be the beginning of a battle about what is disclosed from the Mueller report, and the end result will likely require a decision by the judiciary.

The scope and complexity of the litigation to challenge these assertions are inevitable as both the media and Congress are likely to make First Amendment and other challenges, the Department of Justice will be asked to respond and take a position, a U.S. district court will need to make a decision, and whatever decision is made will undoubtedly be appealed.

The amount of time until there is a definitive answer on what is or is not released from the Mueller report is likely to be very lengthy.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Joe D. Whitley is a shareholder with Baker Donelson in Atlanta. He is chair of the firm’s Government Enforcement and Investigations Group and represents clients nationally and internationally in white collar criminal matters, regulatory enforcement and corporate internal investigations. Prior to joining the firm, Whitley held several prominent positions in the DOJ, including Acting Associate Attorney General. He can be reached at jwhitley@bakerdonelson.com.

Thomas H. Barnard is a shareholder with Baker Donelson in the firm’s Baltimore office. He is a former Assistant U.S. Attorney, military prosecutor and military defense counsel with more than 20 years of government experience. He can be reached at tbarnard@bakerdonelson.com.

Jonathan Biran is a shareholder with Baker Donelson in the firm’s Baltimore office. Prior to private practice, he was a federal prosecutor for more than 17 years, including serving as Assistant U.S. Attorney for the District of Maryland and the District of Connecticut. He assists companies and individuals who are under investigation by government entities, or who have been sued or charged by prosecutors or other regulators. He can be reached at jbiran@bakerdonelson.com.