DOJ Urges Court To Seal Filings Regarding Trump Grand Jury, If Such A Thing Exists, Which They Cannot Confirm Or Deny

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It’s no secret that Donald Trump has tried to use executive privilege to block law enforcement investigations. We saw him run that ploy in Judge Aileen Cannon’s courtroom with respect to his purloined classified documents, only to have the Eleventh Circuit curb stomp him and put an end to the whole shambolic exercise. But another privilege fight has been playing out more quietly in DC with respect to the grand jury investigating Trump’s role in the January 6 Capitol Riot.

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Recently that fight broke out into the open when Politico reporter Kyle Cheney and the New York Times’s Charlie Savage sued to unseal the legal arguments put forward by both sides in Trump’s failed attempt to use privilege to block his former White House employees from testifying before the grand jury.

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Importantly, the reporters are not seeking the substance of the officials’ testimony. What they want is the briefs hashing out Trump’s claims of executive privilege, as well as the Special Counsel’s opposition.

In response, Chief Judge Beryl Howell issued one of the longest minute orders on record, and perhaps the only one using the word “ironically.” We’ll spare you the 403-word block quote and hit the highlights.

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The court requested a briefing by February 13 addressing:

(1) The Court’s authority to unseal judicial opinions, in whole or in part, related to grand jury investigations, whether ongoing or closed, under either Federal Rule of Criminal Procedure 6 or Local Criminal Rule 6.1, given the holding in McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019), that disclosures of matters occurring before the grand jury are restricted to the enumerated list in Federal Rule of Criminal Procedure 6(e)(3)(E), and that Rule 6(e)(1) and (2) do not authorize a court to unseal matters before a grand jury, even though Judges are not included on the list of “persons [who] must not disclose a matter occurring before the grand jury,” compare Pets.’ Application for Access at 7-8, ECF No. 1;

[…]

and 2) To the extent that the holding in McKeever may be reconciled with the D.C. Circuit’s routine unsealing, at least in part, of judicial opinions related to ongoing grand jury investigations, see, e.g., In re Sealed Case, 932 F.3d 915 (D.C. Cir. 2019); In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013), in reliance on redactions or substitution of names as a means to prevent the disclosure of a matter before the grand jury, see In re Sealed Case No. 99-3091, 192 F.3d 995, 1002 (D.C. Cir. 1999)

[…]

[E]xplain (a) how this may be accomplished here when petitioners seek a specific judicial decision, and related submissions, in connection with a publicly announced Special Counsel investigation, and (b) whether, ironically, judicial decisions arising from grand jury matters garnering little to no press attention may necessitate fewer redactions to preserve grand jury secrecy than those judicial decisions arising from grand jury matters subject to intense press attention such that the latter decisions may not be released by the Court at all.

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Essentially, the court asked the parties to reconcile binding Circuit precedent from the 2019 case McKeever v. Barr, limiting judicial discretion to unseal grand jury materials, with the court’s “routine unsealing” of grand jury materials while relying on redactions to shield the identity of parties. Of course, no redaction bars are going to shield the identity of the former president — particularly when the case has been the subject daily front page stories.

Might this unique circumstance impose an additional responsibility on the court to redact grand jury filings, Judge Howell wonders aloud.

Unsurprisingly, the media plaintiffs suggest it does not.

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“As this Court observed, it would be ironic indeed if the fact that a grand jury was the subject of widespread public attention meant that records of proceedings ancillary to that grand jury would have to be kept secret, while similar proceedings regarding obscure grand juries could be made public with redactions,” they argue in answer to the second question. And they point out that there are no secrets to protect here, since everyone already knows that Judge Howell overruled Trump’s executive privilege arguments and ordered Pence’s aides, Greg Jacob and Marc Short, to testify. So, they argue, the court doesn’t need to go heavy with the redaction pen, since the point of Federal Rule of Criminal Procedure 6(e) is to protect actual secrets.

As to the first question, the plaintiffs also note that, “The holding in McKeever does not affect the settled practice of releasing redacted judicial records of proceedings ancillary to a grand jury,” adding that the requested pleadings aren’t grand jury materials at all, but “unquestionably judicial records over which this Court has inherent authority.”

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Also unsurprisingly, the Justice Department does not favor disclosure. Because, hello, DOJ gonna DOJ.

Prosecutors will agree that McKeever leaves room for a District Court judge to “unseal judicial opinions related to grand jury investigations, in whole or in part, where the information released does not reveal ‘a matter occurring before a grand jury.’” But they caution that the sacrosanct grand jury secrecy rule requires “determining whether any portion of a judicial opinion ancillary to an alleged grand jury proceeding may be released is a fact-bound inquiry that may result in a determination that no material may be released at all, or that no material may be released at that time.”

Let’s take a wildass guess that the DOJ likes the “no material may be released at all” option. Particularly in light of their answers to the final part of court’s order:

[T]here is a far greater risk in a high-profile matter that any disclosure by a court might reveal or confirm that unindicted individuals were under investigation by a grand jury, which would harm their reputational and privacy interests without providing them any forum in which to clear their names. See id. This Court has recognized a similar principle in a different context, observing that redactions are not always adequate to protect the interests served by secrecy where a matter is the subject of intense media scrutiny.

[…]

Thus, to advance the policy goals underlying grand jury secrecy, it may well be necessary for a court to more frequently decline to release judicial opinions ancillary to grand jury investigations in matters that are the subject of intense press attention as opposed to matters that have attracted little public attention.

The government ends its filing with a footnote reminding us that this is all a giant hypothetical, and, notwithstanding the wall-to-wall media coverage of the two grand juries investigating Donald Trump for crimes related to January 6 and his retention of classified documents, “nothing in this brief should be read to specifically reference, or to confirm or deny, any alleged grand jury investigation.”

Because the DOJ is nothing if not committed to the bit.

APPLICATION OF THE NEW YORK TIMES COMPANY AND CHARLIE SAVAGE FOR ACCESS TO CERTAIN DOCKETS, ORDERS, LEGAL BRIEFING, AND ARGUMENT TRANSCRIPTS ANCILLARY TO JANUARY 6 GRAND JURY PROCEEDINGS [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Courts, Department of Justice, Donald Trump, Georgia, Grand Jury