April 11, 2019 – Attorney General Barr repeated in his testimony before House and Senate appropriators this week that he intends to redact grand jury material from the version of the Mueller report that he sends to Congress. He also made clear that he does not intend to seek court permission to release grand jury testimony to Congress or the public. That raises the interesting question of why the Department of Justice was demanding documents and hauling witnesses before the grand jury to testify regarding the president, if DOJ knew 1) that its policy prevented it from bringing criminal charges against the president and 2) that it would not share the grand jury testimony with Congress, which has the power to impeach. Was the special counsel off on a lark, abusing the power of the grand jury in a hollow exercise? Of course not. Barr’s position is untenable. Congress must receive the unredacted Mueller report, including grand jury material.
Given Mueller’s previous indictments and all that we already know about the Trump campaign’s and administration’s dealings with Russians, as well as Trump’s public attempts to undermine the investigation, Congress has an obligation to obtain all of the fruits of Mueller’s investigation. Even before release of Mueller’s report, it has a constitutional obligation to investigate. That obligation will become irresistible once it obtains the report.
Indeed, both Mueller and Barr made congressional demands for the complete report and supporting material essential; Mueller by including in his report that his investigation did not exonerate Trump of obstruction of justice and Barr by including Mueller’s language in his letter summarizing Mueller’s conclusions. Mueller alerted Congress that he had uncovered substantial evidence that warranted congressional attention. Congress would behave irresponsibly if it failed to respond with a demand for all of the evidence.
Barr’s unwillingness to seek court approval to release grand jury material is tellingly consistent with his longstanding hostility to Mueller’s investigation. The unsolicited 19-page memorandum that he shared with DOJ and Trump’s legal team before his nomination called the obstruction of justice inquiry “fatally misconceived.” His unsurprising, ham-handed effort to override Mueller by exonerating Trump of obstructing justice gave Trump a helpful talking point. His conclusion, however, lacked legal effect, since DOJ would not indict Trump. Rather, its principal effect was to confirm his allegiance to the Trump team and to convince Congress that he does not deserve the benefit of the doubt.
Barr’s unwillingness to share grand jury material means that he intends to withhold massive amounts of evidence from Congress, in addition to redacting from the report’s narrative information extracted from that evidence. According to Barr, Mueller issued over 2800 subpoenas. Those subpoenas produced volumes of grand jury testimony and documents that Barr intends to conceal. Unless Barr adopts a very narrow view of what constitutes grand jury material – an unlikely prospect – the report sent to Congress will resemble swiss cheese and the supporting material – if any –will be sliced thin.
Barr could petition Chief Judge Howell of the D.C. District Court, who supervised the grand jury, for an order lifting the secrecy of material generated by the grand jury. While Rule 6(e) of the Federal Rules of Criminal Procedure imposes secrecy on grand jury proceedings, it contains exceptions that should allow release in this matter. Several courts have held that courts also retain inherent authority to release grand jury material, but the D.C. Circuit effectively took that option away last week in an unrelated case. In doing so, however, it appeared to reaffirm that one of the 6(e) exceptions should apply here.
That exception allows release of material “preliminary to or in connection with a judicial proceeding.” Grand jury material related to Watergate, Ken Starr’s investigation of Clinton, and the prosecution of Judge Alcee Hastings was released to Congress pursuant, in part, to this exception. Courts determined that impeachment was a judicial proceeding.
Trump supporters will argue that the exception does not apply because Congress has not authorized a formal impeachment inquiry. Republicans see political advantage in goading the majority into a vote to authorize impeachment proceedings. The exception, however, explicitly contemplates that the material may be produced “preliminary to” a judicial proceeding. Congress needs the information to know whether it should launch a formal impeachment inquiry. Notably, the House had not opened a formal inquiry when Starr delivered his report to Congress. The House can strengthen its legal hand by stating openly – and truthfully — that it needs the information to determine whether an impeachment inquiry is warranted.
Since Barr will not petition for release of grand jury material, the House Judiciary Committee will have to subpoena the report. When Barr refuses to include grand jury material, the committee may hold him in contempt and file suit to enforce its contempt order. In the end, the House is likely to prevail. The judicial proceeding exception provides an avenue for the court to serve the enormous public interest in Congress seeing the full Mueller report.
House Judiciary Committee Chair Nadler appears intent on serving a subpoena as soon as Barr produces a redacted report. He should, since the enforcement process will take time.
In a final effort to convince Trump that he is completely in the fold (and that he should not be trusted by Congress), Barr testified to his concern that the FBI had spied on Trump’s campaign. He plans to look into this Trump conspiracy theory. Trump wanted a protector as his Attorney General. He chose wisely.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. www.afj.org