Legal Analysis

Barr Says He Can’t Release Full Mueller Report Due to Recent Court Decision. He’s Right, But There’s an Exception.

U.S. Attorney General William Barr testified before a House Appropriations subcommittee Tuesday morning, and members of Congress grilled him over his intention to redact portions of Special Counsel Robert Mueller‘s Russia report. Barr said he would black out information including intelligence sources and methods, information on peripheral/uncharged third parties, information that would jeopardize ongoing Justice Department prosecutions, and grand jury information.

That last category that has been a major sticking point for Democratic lawmakers, so the issue came up again during the hearing. Rule 6(e) of the Federal Rules of Criminal Procedure covers grand jury information and when a court can order that such information may be disclosed.

Rep. Tom Graves (R-Ga.) noted that House Democrats have discussed issuing a subpoena to compel Barr to release an unredacted version of Mueller’s report. Graves asked Barr what might happen should he refuse to comply.

“I’m not on the Judiciary Committee, my understanding is though they’ve issued a subpoena to you to release the full report. Would that put you in violation of federal law?” Graves asked.

“In the current situation, I don’t think I have the latitude to release 6(e) material,” Barr said. “As to the other categories, as I said, I’m willing to discuss those with the judiciary committees.”

Barr then said, “there’s been a recent case decided in the District of Columbia just, I think within the last week, on this that 6(e) material is not releasable.”

He was referring to McKeever v. Barr, which was decided April 5.  That decision ruled that courts only have the authority to order the release of grand jury information if it falls squarely within the exceptions listed in Rule 6(e). Stuart McKeever, an author who was researching a decades-old case related to the 1956 disappearance of Columbia University professor Jesus Galindez, sought grand jury information from a related case, but the D.C. Circuit said that this is not permitted by Rule 6(e).

That rule says that courts can order the release of grand jury information in five specific situations:

(i) preliminarily to or in connection with a judicial proceeding;

(ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury;

(iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation;

(iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or

(v) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law.

The McKeever decision did make a significant note, however, that could turn out to be relevant to the Mueller report. In a footnote, Senior Circuit Judge Douglas Ginsburg recognized that grand jury information pertaining to the Watergate investigation was ordered to be released to Congress in 1974. Ginsburg clarified that because this was in regards to an impeachment investigation, it was akin to a judicial proceeding, which is one of the 6(e) exceptions.

That means that, according to the McKeever decision, Barr is correct in saying that he cannot be compelled by a court to release grand jury information in Mueller’s report … at this point in time. Should the House decide to initiate an impeachment investigation, they may have better luck.

Barr said he expects a redacted version of the report to be released some time next week.

[Image via CNN screengrab]

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