In re Application of Committee on Judiciary, U.S. House of Representatives

          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 ...