In 1974, D.C. District Court Judge John Sirica ordered that a report prepared by the Watergate grand jury be turned over to the House Judiciary Committee, so they could use it as it decided whether to impeach President Nixon.
Forty-five years later, a remarkably similar sequence of events may be about to play out. With Special Counsel Robert Mueller’s investigation complete, Congress is ramping up its own investigations, as it determines whether to initiate proceedings to impeach the President. And to help inform its investigation, Congress reasonably wants to see the full unredacted Mueller Report and the underlying materials.
To get them, Congress will need to go to a different D.C. District Court Judge—Beryl Howell, the judge who impaneled the grand jury that worked with Mueller over the course of his investigation. But a recent, divided ruling by a three-judge panel of the D.C. Circuit Court of Appeals wrongly limits her authority to disclose grand jury materials—and could have significant implications beyond the Mueller report, as well.
In McKeever v. Barr, the D.C. Circuit was considering a historian’s request for grand jury information related to a 1950s kidnapping that he spent decades researching. The court concluded that he wasn’t entitled to the information because, in its view, district courts do not have inherent authority to disclose grand jury materials. Rather, they can only disclose them if the disclosure can be justified under one of several exceptions spelled out in the Federal Rules of Criminal Procedure. McKeever acknowledged that none of those exceptions applied in his case.
That decision was wrong—at odds with the history of grand juries, the text of the federal rule it was interpreting, and that court’s own precedent. There is a long history of courts being permitted to disclose grand jury materials pursuant to their inherent authority overseeing grand juries, and the federal rule the McKeever case majority cited was not meant to supplant that authority. Indeed, the majority’s conclusion that the rule’s text eliminated judges’ inherent authority was utterly unpersuasive. The majority’s ruling also conflicts with a prior decision of the full D.C. Circuit that affirmed Judge Sirica’s decision to disclose the Watergate grand jury materials to the House Judiciary Committee.
Importantly, the three-judge D.C. Circuit panel decision does not necessarily prevent Judge Howell from releasing the Mueller grand jury materials to Congress. All three judges in McKeever agreed that district court judges can disclose grand jury materials to Congress under some circumstances, and even the majority concluded that a district court judge releasing materials to a House Committee in connection with an impeachment investigation would fall within one of those specified exceptions because it would be “preliminary to or in connection with a judicial proceeding.”
Congress has good arguments that it should be able to get the Mueller grand jury materials pursuant to that exception, but some commentators have argued that McKeever prevents Congress from getting these materials until there’s a formal impeachment proceeding. And even if those commentators are wrong, McKeever’s implications extend far beyond the big-ticket investigations of presidents and other federal officials who might be impeached. There are many cases where the public would benefit from disclosure of grand jury information—for example, in an environmental or discrimination case, or in a case of historic significance. Prior to McKeever, district court judges had authority to disclose such materials; now, in the D.C. Circuit, they do not.
Fortunately, McKeever may not be around for long. McKeever filed a petition last week asking the full D.C. Circuit to hear the case and overturn the panel decision. This is the quintessential case where such review by a full court of appeals is appropriate because the panel’s decision not only conflicts with its prior decision in the Watergate case, but also because it conflicts with the decisions of other courts of appeals. That means that whether a district court can disclose grand jury material will turn, in part, on where in the country it sits. There’s no reason that the answer to such an important question should turn on geographic happenstance, which is why the existence of a conflict with other circuits is a prime reason why courts grant petitions like the one McKeever filed.
As McKeever said in his filing with the court, “the question presented in this case is important” because grand jury “disclosures can vindicate important public value values of transparency and historical understanding, and they advance public confidence in the judicial system;” it’s particularly important now. Hopefully, the full D.C. Circuit will take this opportunity to correct the three-judge panel’s mistake.
Brianne Gorod is Chief Counsel of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text, history and values.