The Mueller Report made headlines across the country.  Upon its release, portions of the report were redacted, sparking outrage from some of the President’s critics.  Attorney General William Barr and the Department of Justice attributed his decision to withhold parts of the report on the grounds that some of it contained protected grand jury information subject to the secrecy requirements of Federal Rule of Criminal Procedure (FRCP) 6(e).  What are the secrecy requirements surrounding federal grand jury proceedings and should we be surprised by the decision to withhold?  Further, are there exceptions to the FRCP which may allow disclosure and should they be invoked here?

Section 6(e) of the FRCP provides that certain individuals involved in grand jury proceedings cannot disclose what they heard or saw.  These individuals are not only the grand jurors themselves, but also the government attorney(s) presenting the case, the court reporter, interpreters, and a few others.  Secrecy is intended to prevent the individuals testifying before the grand jury from either disappearing or harassing the grand jurors; it also encourages the witnesses’ full and complete disclosure.  The fear is that if grand jury proceedings were subject to disclosure before an indictment issues, many witnesses may be hesitant to come forward and voluntarily testify for fear of recourse from the individual(s) being indicted or from the public for controversial cases.  Further, the justice system wants persons who are initially accused, but later exonerated by the grand jury, to avoid the public ridicule of being the subject of a grand jury investigation.

Nondisclosure requirements are applicable to nearly every aspect of the proceedings, but there are a few exceptions.  One such exception allows information from the grand jury to be given to a government attorney to perform his or her duties or to government personnel deemed necessary by a government attorney to assist the attorney in performing his or her duties.  Such personnel can only use the information to help the government attorney to perform his or her duty to enforce federal criminal law.  These disclosures can be made without judicial approval.  The judge who oversaw the grand jury proceedings can also authorize disclosure upon request for use in connection with a judicial proceeding or at the government’s request for use in an official criminal investigation.

The exception does not clearly encompass disclosing grand jury information to Congress or the public at large.  Additionally, there is generally a significant amount of gray area and inconsistency surrounding which pieces of information constitute “matters before the grand jury” that are exempt from disclosure.  While some courts have chosen not to extend the information barrier in Rule 6(e) to congressional inquiries, others have authorized disclosure in special or exceptional circumstances.  It is well settled that information such as live testimony and transcripts of proceedings are exempted, however, the mere fact that information, records, or documents have been presented to the grand jury does not preclude disclosure in other proceedings.  For instance, business records that are otherwise not exempt from a disclosure request in litigation are not sheltered merely because they were presented in a grand jury investigation.

By the same token, some records or documents may be covered by the grand jury’s secrecy even if otherwise discoverable, depending upon how a request for presentation is made.  Requests seeking “all documents subpoenaed by the grand jury” would likely not be permitted as tending to potentially disclose the nature or scope of the grand jury’s investigation.  In contrast, broader requests for “all evidence” regarding a particular matter or occurrence are more likely to be acceptable if the requester would not be able to pick out the specific documents that the grand jury may have used in its investigation.

Congress has only been able to access grand jury information twice in the country’s history—once for the Watergate scandal during President Nixon’s administration, and once for the Starr Report during President Clinton’s administration.  Both occasions involved the House of Representatives opening impeachment proceedings, which courts have classified as quasi-judicial in nature.  In contrast, the Mueller Report focuses on the potential Russian interference in the 2016 presidential election—a matter not presently involving impeachment proceedings.  This difference may or may not serve as an absolute bar to disclosing the report’s full contents.  Although AG Barr is a government attorney who must abide by the secrecy provisions in Rule 6(e), he could seek permission from the district court where the grand jury proceeding was held to disclose the grand jury matters in Mueller’s report.

As noted in the Watergate case by Judge Sirica, once an investigation has ended, many grand jury secrecy concerns disappear, leading to perhaps a greater tendency based on public policy to favor at least limited disclosure subject to judicial approval.  In this regard, the portions of the otherwise redacted report could be disclosed solely to Congress with strict limitations to respect the secrecy requirements.  Understanding the law surrounding federal grand juries gives us a glimpse as to why they might have been and will likely remain redacted.

With contribution from Sarah Rothermel, J.D. Widener Law Commonwealth.