United States District Court, District of Columbia
In re APPLICATION OF THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, FOR AN ORDER AUTHORIZING THE RELEASE OF CERTAIN GRAND JURY MATERIALS
MEMORANDUM OPINION DIRECTING DOJ TO UNSEAL PORTION OF
DECLARATION IMPROPERLY REDACTED UNDER FED.R. CRIM. P.
6(e)
Beryl
A. Howell Chief Judge.
The
Department of Justice (“DOJ”), in an effort to
bolster its position that the House of Representative's
Committee on the Judiciary (“HJC”) “has
failed to establish a particularized need for the requested
grand jury materials” from Special Counsel Robert S.
Mueller III's Report on the Investigation Into
Russian Interference In The 2016 Presidential Election
(“the Mueller Report”), DOJ's Resp. to App.
of HJC for an Order Authorizing Release of Certain Grand Jury
Materials (“DOJ Resp.”), at 30 (capitalization
altered), ECF No. 20, filed an ex parte, in camera
declaration about the grand jury-material redactions in
Volume II of the Mueller Report, see Min. Ord. (Sept. 12,
2019), which Volume focused on possible obstruction of
justice by the President. DOJ publicly filed a redacted
version of the declaration. See DOJ Resp., Ex. 10, Decl. of
Associate Deputy Attorney General (“ADAG”)
Bradley Weinsheimer (“Redacted ADAG Decl.”), ECF
No. 20-10. Never having seen the grand jury information
redacted from the Mueller Report or the unredacted ADAG
Declaration, HJC raises no objection to the appropriateness
of DOJ's redactions under Federal Rule of Criminal
Procedure 6(e). That Rule provides that government attorneys,
among others, “must not disclose a matter occurring
before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B).
The
unredacted ADAG Declaration indicated that DOJ broadly
interpreted Rule 6(e) as cloaking in secrecy the identities
of individuals who did not testify before the grand jury.
DOJ's assertion that identifying individuals who did
not testify before the grand jury as part of the Mueller
investigation would reveal “a matter occurring before
the grand jury” is without merit and rejected.
Accordingly, DOJ must refile a redacted version of the ADAG
Declaration with the first sentence, part of the second
sentence, and the final sentence of paragraph four
unredacted.
I.
BACKGROUND
HJC has
filed an application for an order authorizing the release of
certain grand jury materials related to the Special
Counsel's investigation, including the information
redacted pursuant to Rule 6(e) from the public version of the
Mueller Report. See HJC's App. for an Order Authorizing
the Release of Certain Grand Jury Materials (“HJC
App.”), ECF No. 1.[1] To obtain such an order of disclosure,
HJC must show a particularized need to use the requested
material “preliminarily to or in connection with a
judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i);
see also United States v. Sells Eng'g, Inc., 463
U.S. 418, 443 (1983). DOJ has vigorously opposed the
requested disclosure, see generally DOJ Resp., and,
as noted above, submitted the ADAG Declaration to demonstrate
that HJC could not meet its burden of establishing a
particularized need for the grand jury material cited in the
Report's Volume II. See DOJ Resp. at 5 n.1 (noting
submission of “sealed declaration further addressing
the issue of particularized need” and explaining need
for sealing “because it contains factual information
that is itself subject to protection under Rule 6(e)”).
The
ADAG Declaration “describe[d] the redacted information
[in Volume II], and other grand jury matters relevant to the
court's consideration.” Redacted ADAG Decl. ¶
3. Those descriptions were crafted to serve DOJ's view
that Volume II's redactions for grand jury secrecy were
limited. See Id. ¶ 3 (“In the 182 pages
of Volume II of the Mueller Report, only 5 pages contain
redactions of brief references to matters occurring before
the grand jury . . . .”); see also DOJ Resp. at 31
(stating that “redacted grand jury information
comprises less than 2% of the overall Report, and in Volume
II . . . 99.9% of the Report is unredacted.”). In
pressing this view, and in revealing to the Court the
material redacted from Volume II, DOJ intended to support its
argument that “[t]he Committee provides no reason to
believe that anything useful to their investigation into the
President lies under those redactions.” DOJ Resp. at
31.
Advancing
this same argument, paragraph four of the ADAG Declaration,
which is redacted in full in the public version, addressed
individuals of special interest to the Committee -
individuals whose FBI Interview Reports
(“FD-302s” or “302s”) HJC has
requested because those 302s are referenced in Volume II. See
HJC App., Ex. O, Letter from Representative Jerrold Nadler,
Chairman, House Committee on the Judiciary, to Attorney
General William P. Barr and Pat Cipollone, Counsel to the
President (May 24, 2019), at 5, ECF No. 1-16; see also
DOJ's Supplemental Submission in Resp. to Min. Ord. of
Oct. 8, 2019 (“DOJ Supp.”) at 3, ECF No. 40
(“The Committee's request for certain FBI-302s
contained a finite list of individuals. Identifying
individuals who did not testify would necessarily reveal
those who did testify. This is the precisely the case in
paragraph four of the first [ADAG] Declaration.”
(internal citations omitted)). Paragraph four begins by
identifying an individual who did not testify before the
grand jury. It goes on to state that some individuals whose
302s were requested by HJC did testify before the grand jury
and then to identify those individuals. The paragraph
concludes by identifying a second individual who did not
testify before the grand jury.
DOJ
made clear its purpose for filing both an ex parte, in
camera and a public, redacted version of the ADAG
Declaration, but this strategy has also had an unintended
consequence: it exposed to the Court the interpretation of
Rule 6(e)'s obligation of secrecy that DOJ had applied in
redacting the declaration - and, presumably, in redacting the
Mueller Report. At the hearing on HJC's petition, DOJ
expressly disagreed with the proposition that “a
witness who does not testify before the grand jury and is
simply interviewed by the FBI is not protected by
6(e).” Hr'g Tr. at 53:21-53:24, ECF No. 38,
prompting the Court to order supplemental briefing about
“why paragraph [four], in the sealed [declaration],
needs to continue to be redacted, ” Id. at
54:20- 54:22; Min. Ord. (Oct. 8, 2019). The Court recognized
that DOJ's position “may have implications for the
. . . scope of the redactions applied by the Department of
Justice on the entire Mueller Report.” Hr'g Tr. at
55:19-55:22.
In its
supplemental filing, DOJ defended the redaction of paragraph
four of the ADAG Declaration. See DOJ Supp. at 2-3.
Recognizing the Court's concern that similar redactions
had been applied to the Mueller Report, DOJ proactively has
assured the Court that “[t]he Mueller Report . . .
contains no redactions for the purpose of protecting the
identities of those who did not testify before the grand
jury.” Id. at 3.
HJC has
not challenged the scope of the redactions made to the
Mueller Report pursuant to Rule 6(e). See Hr'g
Tr. at 4:20-4:24; id. at 5:3-5:4 (HJC's counsel
stated that “we have not raised any concerns about
accuracy [of the redactions made for grand jury
secrecy].”). With respect to the declaration, HJC
recognizes that, without seeing the redacted text, it
“cannot test the accuracy of DOJ's assertion”
of grand jury secrecy. HJC's Resp. to DOJ's Second
Supplemental Submission (“HJC Resp.”) at 2, ECF
No. 41. Rather than place its trust in DOJ's redactions,
HJC asks the Court to evaluate whether the information in
paragraph four is covered by Rule 6(e). Id. HJC
further “requests . . . access to any Rule 6(e)
material in paragraph four, ” if the Court determines
that the paragraph is properly redacted “and
subsequently rules in the Committee's favor on the merits
of the Committee's Rule 6(e) application.”
Id.
II.
ANALYSIS
The
critical phrase “matter occurring before the grand
jury” is undefined in Rule 6(e), and has been described
by the D.C. Circuit to encompass, at its “core, ”
“[i]nformation actually presented to the grand
jury.” In re Sealed No. 99-3091 (Office of
Indep. Counsel Contempt Proceeding), 192 F.3d 995, 1002
(D.C. Cir. 1999) (per curiam). Clear examples of secret grand
jury material include transcripts and summaries of
proceedings or witness testimony before the grand jury, as
well as the questions or deliberations of grand jurors.
See, e.g., Hodge v. FBI, 703 F.3d 575, 580
(D.C. Cir. 2003); Fund for Constitutional Gov't v.
Nat'l Archives & Records Serv., 656 F.2d 856,
869 (D.C. Cir. 1981).
The
meaning of “matter[s] occurring before the grand
jury” can extend further to information “that
would ‘tend to reveal some secret aspect of the grand
jury's investigation, including” the
“strategy” or future “direction of the
investigation.'” Bartko v. Dep't of
Justice, 898 F.3d 51, 73 (D.C. Cir. 2018) (quoting
Hodge, 703 F.3d at 580 (D.C. Cir. 2003)); see
also, e.g., In re Motions of Dow Jones &
Co., 142 F.3d 496, 499-500 (D.C. Cir. 1998) (citing
SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382
(D.C. Cir. 1980) (en banc))).[2] The D.C. Circuit, however, has
“cautioned . . . about ‘the problematic nature of
applying so broad a definition, '” In re
Sealed No. 99-3091, 192 F.3d at 1001 (quoting In re
Sealed No. 98-3077, 151 F.3d 1059, 1071 n.12 (D.C. Cir.
1998) (per curiam)), and has emphasized that Rule 6(e) does
not allow DOJ to “draw a veil of secrecy . . . over all
matters occurring in the world that happen to be investigated
by a grand jury, ” Labow v. Dep't of
Justice, 831 F.3d 523, 529 (D.C. Cir. 2016) (alteration
in original) (internal quotation marks omitted) (quoting
Senate of P.R. v. Dep't of Justice, 823 F.2d
574, 582 (D.C. Cir. 1987)); see also Citizens for
Responsibility & Ethics in Wash. v. Dep't of
Justice, 746 F.3d 1082, 1100 (D.C. Cir. 2014)
(“[T]here is no per se rule against disclosure
of any and all information which has reached the grand jury
chambers, let alone any and all information which could reach
the grand jury.” (alteration in original) (citation
omitted) (internal quotation marks omitted)). Indeed, Rule
6(e) does not bar “the disclosure of information
‘coincidentally before the grand jury [which can] be
revealed in such a manner that its revelation would not
elucidate the inner workings of the grand jury, '”
In Re Sealed No. 99-3091, 192 F.3d at 1002 (quoting
Senate of P.R., 823 F.2d at 582) (alteration in
original).
As
already noted, the identity of an individual who testified
before the grand jury is clearly a “matter occurring
before the grand jury.” See e.g.,
Hodge, 703 F.3d at 580; 1 Wright & Miller, at
§ 106.[3] This is true in the most literal ...