First Amendment

Application to Release Grand Jury Material Quoted in Mueller Report

Since I've been blogging today about public rights of access to sealed files, I thought I'd pass this along.

|The Volokh Conspiracy |

It was filed by the Reporters Committee for Freedom of the Press. Note that grand jury material, unlike material filed in civil or criminal cases, has traditionally been kept secret, and the Court has held that tradition counts for a lot when it comes to the right of access to government docume. Public access to grand jury material is thus more the exception than the rule, and I can't speak with confidence about what the court will do here.

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  1. I can’t imagine a scenario where it would be appropriate to divulge grand jury material; this certainly isn’t it.

    1. Yeah, seems like it should be a tough sell that we should release grand jury information for no criminal action whatsoever,

      But I have little doubt they will find a judge to say that it should be done.

      1. Nothing turns right-wingers into big-government fans (government secrecy, especially) like a chance to protect a Republican elected official from facts.

        1. I don’t think this is about protecting government secrets, in all honesty. I tend to think this is more about protecting innocent people whose names may have surfaced during the investigations in front of the grand jury. For example, I could envision a scenario where a prosecutor asks who a person (lets say General Flynn, as an example) under investigation had lunch with on a certain day. And someone’s name comes up….it could be a distant relative, a friend, whatever. The point is, this person had nothing to do with politics at all. Making that public will absolutely destroy this innocent persons reputation, given the proclivities of mass media today.

          I think you would agree that this would be wrong. In the pursuit of justice, one cannot perpetuate injustice against the innocent to achieve it.

          That to me is a good enough reason to keep grand jury arguments and deliberations under seal. Maybe there is a way around this, but I do not see it. Do you?

    2. How about if the request comes from the Select Committee on Presidential Impeachment of the House of Representatives of the United States? Can you imagine any scenario where that one should not be complied with?

      1. I would think that might be acceptable — using similar techniques used for some highly sensitive material in the past. Perhaps no copies, limited access to a subset of house members, viewing in a secure room while under surveillance, and no detailed note taking (certainly no direct quotes), Also those viewing it not being allowed to discuss/reveal the material with anyone except others who were authorized and did, in fact, view the materials.

        Then, if that prompts a thread, the House can then, without any reference to the Grand Jury testimony, hold House hearings (public and/or private) where the witnesses have immediate and easy access to counsel and both “sides” have a chance to ask questions and call additional witnesses.

        1. BadLib, at those hearings, what happens if a witness offers materially different testimony than he/she did before the grand jury. Can the grand jury testimony be used publicly then, to impeach the witness?to charge the witness with perjury, or obstruction?

          It seems that you suggest it’s okay for a few in the House to see the full report, so long as steps are taken to keep the full House from finding out, and steps also to thwart any use of the information to increase political support for impeachment.

          If you had to choose between the tradition of grand jury secrecy, and the integrity of the impeachment process, would you really choose in the name of the former to overturn the latter?

      2. Yes, where they seek grand jury records.

      3. I think any the President would be well advised to refuse to disclose any information to said committee.

        What are they going to do, impeach him twice?

  2. This morning on fake news CNN, the host invoked the Starr report, reminisced about the stacks of copies of the Starr report being delivered to Congress, and asked her panel why the Mueller report was being handled so differently. Everybody speculated about the why that might be, but with nary a mention of the fact that the Independent Counsel Statute required that such a report be sent to Congress, and that this act was allowed to expire by bipartisan consensus.

    1. In addition to not being investigators, the media isn’t too big on very basic research it seems.

      Remember when CNN HAD a reputation that could be ruined?

      1. Basic research either gives a reporter reason to run with the story they were going to anyway, in which case it’s redundant, or gives them reservations about running with it, in which case they still do run it, but might feel bad about doing so.

        That being the case, what’s the point in doing it?

    2. This morning on fake news CNN

      Disappointing to see you get down there into that Trumpist rhetoric.

      1. He ain’t right about much, but when he’s right, he’s right.

        1. Fake news is tin-foil hat BS. CNN sucks and is often lazy, but some kind of liberal cabal making stuff up they are not.

          1. Fake News is a problem only if it is the result of deliberate malice, but Fake News that results from laziness or vacuum is above criticism.

            1. Yeah, but that’s not fake news, much less Fake News.

              Add in that Trump just calls all news that makes him look bad fake news and I find the brand more partisan than trenchant.

              1. Remember when fake news used to strictly be for entertainment and for grandparents to argue about? Like whether or not Bat-Boy was going to go to college or not (National Enquirer) ? (Archie and Edith sing) “Those were the days…”

                1. I did have a time in late High School when I collected the Weekly World News.

              2. The problem is that there are too many examples of genuine fake news around, that the media ran with because it was “too good to check”.

                The hat toss story, for instance. Which is still up at many media sites without correction.

                Or all those stories about what went down during meetings according to “anonymous sources” who are contradicted on record by everybody at the meeting.

                1. The problem is you continue to make up the thoughts of people you don’t like to shore up your chosen narrative.

        2. @TIP,

          That’s bullshit and I suspect you know it.

          “Fake News” had a meaning before Trump misappropriated it to smear newsers that piss him off. To my knowledge he’s never applied it to actual Fake News. Unlike his own assertions, which are almost reliably false, the outlets he calls Fake News are correct more often than not, sometimes even by his own tacit admission when he does one of his customary narrative u-turns.

          Not only is Fake News by definition never accurate, but what also distinguishes it from reputable journalism, which inevitably makes mistakes, is that Fake News’ falsity is deliberate. By design falsity is one of its defining characteristics. And no, that does not describe CNN, MSNBC or WaPo, any more than it does Fox News or Breitbart, which as vile as they are, also aren’t Fake News.

          Are you really OK with Trump’s relentless gaslighting assault on objective reality?

          1. “…the outlets he calls Fake News are correct more often than not…”

            That’s some pretty high standards you got there. Is that really the hill you want to die on? “How dare Trump call CNN fake news, when fake news is by definition never accurate, and CNN is accurate more often than never!”

            You guys are getting terribly worked up over semantics.

            And yes, Trump is full of shit too. But he is correct that what passes for journalism is largely bullshit.

            1. Not to nitpick, but “more often than not” (what I said) is accurate more frequently than “more often than never” (your characterization of what I said) by about infinity percent.

              As for my sorry standards, I chose the artificially low “more often than not” to avoid arguments, demands for links, etc., but also to make a point. The accuracy of statements Trump calls Fake News is one factor that makes them Absolutely Not Fake News. But the other factor, deliberate falsity, is independently sufficient to disqualify Trump’s critics from Fake News. Even if the Washington Post was wrong 49% of the time, while it would be a terrible newspaper, because its errors aren’t deliberate it still wouldn’t be Fake News.

              Why do the semantics matter? Because Trump doesn’t just debase language because he’s an ignoramus. He does it because it serves his demagogic project. In this case, by calling the MSM something they aren’t, hundreds of times, he’s convinced otherwise intelligent people like you that there’s some kind of equivalence (“Trump is full of shit too”) between his press critics who, whatever their faults, rarely if ever deliberately lie, and the most profligate liar the White House has seen in living memory.

              If that’s OK with you, maybe because it owns the libs, what can I say? Tribalism is an ethic of sorts, I suppose. I just hope you’re honest with yourself about it, even if you don’t cop to it publicly.

              1. Yeah, I got titchy because it’s propaganda, and I don’t like seeing it creep into the more intellecutal and moderate conservatives around here.

              2. “In this case, by calling the MSM something they aren’t, hundreds of times, he’s convinced otherwise intelligent people like you…”

                You, my friend, are falling for MSM propaganda. You think the reason I, and many others who are not fans of Trump, think that the media is full of shit is because Trump says so?

                Journalists love to claim blame Trump for distrust in the media because it absolves them of responsibly, but distrust in the media is the fault of the media.

                And as a consumer of media, I really don’t care whether they’re deliberately false or false through sloppiness and confirmation bias. If they’re wrong, they’re wrong.

                1. MSM propaganda

                  See, that’s BS right there. Neglegance, for sure. Bias, perhaps. Propaganda? Take off your tin foil.

                  1. The claim that Trump is undermining the free press by criticizing them? Absolutely propaganda. Sure, many propagandists believe their own propaganda, but it’s still self-serving propaganda.

                    1. And what’s up with the gal from MSNBC trying to get stories spiked on behalf of the DNC, anyway?

                    2. If a President threatening to investigate and de-license journalists, calling them “Enemy of the People,” and so inciting rally attendees that reporters have needed police escort to get out of an arena safely doesn’t undermine a free press, what would you call it?

                    3. Any one call call the media “enemies of the people” if they want. And I’m not sure what incident you’re referring to, but I haven’t seen any Trump “inciting” anybody in any meaningful sense. The media loves to claim that Trump’s criticism is incitement, but that’s one of the many reasons that they are full of shit.

                    4. And of course we have Amanpour on CNN suggesting that the FBI should have shut down the “lock her up” chants…

      2. I can’t speak for TIP, but as a conservative I can assure you I’ve hated the American news media since well before Trump announced his candidacy. It’s so strange when people accuse me of parroting the President for saying the same things I’ve been saying my entire adult life.

        1. Good to see the conservative attempts to close-off all but their channels is working.

          But anyhow, hating the media != saying it’s fake. No one’s a huge fan, but ignoring it as made up is a whole ‘nother level.

          1. So now hating that basically all the channels are yours is an attempt to close off all but our own channels?

            1. Thinking all the channels are liberal is part of the problem.

              1. Given that we have lived in a news culture where two entire generations were sold the bullshit line that Walter Cronkite and Dan Rather were centrist, I’m having trouble seeing your point.

                1. Seeing as how said generations managed to have no shortage of conservatives despite listening to such awful extremists, maybe your sense of what counts as centrist is actually the issue.

              2. “Thinking all the channels are liberal is part of the problem.”

                Not all of the channels are liberal, but there are plenty of stats that show that the media is overwhelmingly dominated by liberals. So stories that advance a left-wing agenda are more likely to get reported uncritically by a variety of outlets. Today’s largely BS coverage of the wage gap is an example. Fox news reports its share of bullshit, but that bullshit (along with some of its accurate reporting) is “fact checked” by loads of other outlets.

    3. “Independent Counsel Statute required that such a report be sent to Congress”

      I’m curious about this and honestly don’t completely understand the distinctions involved. The independent counsel stature once required a report be submitted to Congress and that provision is lacking in the current law.

      Our friends on the Right repeatedly emphasize this – being frantically eager to bury Mueller’s report so the public never sees it – but by itself the change means little to my eye. Even though the report doesn’t automatically go to Congress, they can subpoena on their own accord, right?

      On the other hand, why should a proviso requiring a report be submitted to Congress invalidate the rules of grand jury secrecy in the case of Starr, while those rules still apply in the case of Mueller? If it is absolutely not permitted now, why would it have been permitted then? Did anything in the law then specifically reference grand jury testimony? Absent that, why wouldn’t Starr’s report have just been written to reflect the limitation of the law? Have standards really changed from Starr to Mueller?

      I admit not knowing the subtleties here, and welcome reasoned / rational correction.

      1. “I’m curious about this and honestly don’t completely understand the distinctions involved. The independent counsel stature once required a report be submitted to Congress and that provision is lacking in the current law.”

        Kenneth Starr was operating under the Independent Counsel Act,enacted by Congress and signed by the President, which set standards for the appointment of an Independent Counsel and for how he was to proceed. That statute required Starr to deliver his final report to Congress. But that Act was allowed to expire and was not renewed or replaced by Congress. Mueller, on the other hand, was appointed by the Attorney General pursuant to regulations adopted by the DOJ, authorized only by a law allowing the DOJ to adopt necessary regulations for its efficient operations. Under DOJ regulations, Mueller was acting as a direct subordinate of the AG, and was required to transmit his report ONLY to the AG. It was within the discretion of the AG how much or how little of the report to turn over to Congress. Congress COULD HAVE avoided any confusion or dispute over whether or not it was entitled to see the report by renewing or re-enacting the Independent Counsel Act, or something similar. But that would have required Congress to accept accountability for the Act, and a Congressperson, as a rule, never does anything for which he or she might be held accountable.

      2. Here I think is the text of the law as it existed for Starr’s investigation. Jump to ? 595 on page 48.

        A report to Congress was mandatory.
        Grand jury testimony is not specifically called out that I can find.
        The Special Prosecutor had considerable discretion to decide what to include in the report.
        However, that discretion was bounded by (b)(2) which required “the reasons for not prosecuting”.

        My read of the current law does not require any report at all, much less a compelled listing of the reasons for not prosecuting. Absent such a requirement, I would assume the normal rules about grand jury confidentiality would reassert themselves.

        Can Congress subpoena detail subject to grand jury confidentiality? I honestly don’t know. It’s worth pointing out that they haven’t issued any such subpoena yet. And I’m not willing to speculate why.

      3. “On the other hand, why should a proviso requiring a report be submitted to Congress invalidate the rules of grand jury secrecy in the case of Starr, while those rules still apply in the case of Mueller?”

        IIUC Ken Starr had to ask the judge to release the materials in order to make his report to Congress.

        1. “IIUC Ken Starr had to ask the judge to release the materials in order to make his report to Congress”

          Well, that’s to the point, easily confirmed, plus I got to learn what “IIUC” means. So, with my new broader understanding I have two conclusions, two questions, and one surety

          The conclusions :

          (1) The old law requirement Starr produce a report is irrelevant to the release of grand jury testimony. An excuse; a red herring. The mechanism then required to make testimony public is unchanged today.

          (2) Barr, who made a strong commitment to maximum transparency during his confirmation, can petition the court just like Jaworski in 1974 and Starr in 1998.

          The questions :

          (1) Will he? Excuse my cynicism, no.

          (2) Can Congress? Let’s say the House of Representatives, which voted 420-to-0 to demand public release of the Mueller Report. I assume yes. If reporters can, why not the House Judiciary Committee?

          The surety :

          I’m absolutely certain everyone here agrees with those 420 House members or the 77% of American people demanding the full report released. This must particularly be true of Trump’s supporters, who can then luxuriate in the full details of his exoneration….

          1. Could be. Despite breathless claims from some quarters that Trump et al are trying to bury the report, I haven’t really seen any evidence of that. Personally I could care less if it is released. If it is, I’m certain that there will be breathless reports from some quarters that certain parts of the reports are proof that Trump is the worst criminal ever, and equally breathless claims from other quarters that the report shows an attempt to overthrow the presidency.

            1. Um, technically it’s possible to try to overthrow the worst criminal ever. Just like you could murder a mob boss. So there isn’t really a contradiction there, Trump could be an awful guy who actually was the victim of an attempted coup.

            2. I have no idea what the report contains. Here’s four somewhat-reasonable predictions for when the report is made public

              (1) All the talk of “attempted coup” will dry up instantly. Only the real deadenders will be left hawking that drivel.

              (2) The case for obstruction of justice will be strong, the counterarguments constitutional not factual. Mueller refused to make a call because he considers it a political issue and – bless his heart – he’s the least political special counsel I’ve ever seen.

              (3) The scope of Russia’s measures to influence the election will be even larger than publicly known now.

              (4) There will be tawdry embarrassing sleaze on Trump. (I just consider this a given. Anytime you look closely at Trump there’s tawdry embarrassing sleaze)

              1. “The case for obstruction of justice will be strong, the counterarguments constitutional not factual.”

                The case for obstruction is already largely constitutional/statutory. For example, Trump has said that the fired Comey partially because he thought the Russia thing was “a made up story”. Different people have different views on whether or not this is obstruction. And Comey has said that Trump said to lay off Flynn because he was a good guy. IIRC Trump denies this. But different people also have different views on whether or not this is obstruction. You think the report has more facts than this? I guess we’ll see.

                1. (1) Do I assume there’s more evidence / incidents pertaining to obstruction than the two items you list? Yes I do, but we’ll see.

                  (2) The quote I have on the motivation of Comey’s firing is this : “I faced great pressure because of Russia. That’s taken off.” Of course this is from a transcript of Trump speaking to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov.

                  That raises two questions : First, I don’t know where your quote is from, but can you think of a better situation for Donald John Trump to let his hair down and freely unburden than meeting with Russian officials in the Oval Office? I can’t. Where else would he be more at ease? The second question : Is everyone in Russia named Sergey ?!?

                  1. “Is everyone in Russia named Sergey ?!?”

                    No, the guy Obama chose to “let his hair down” about having more flexibility after the election was named Dimitri.

      4. “The independent counsel stature once required a report be submitted to Congress and that provision is lacking in the current law.”

        You are missing the point that there is no current law. The independent counsel act had a sunset clause, and the last time it expired, at least 2 presidential administrations ago, Congress neither renewed it, nor enacted anything to take it’s place.

        Mueller was appointed as special prosecutor, supposedly under the inherent authority of the AG. The DOJ enacted some regulations way back (the first time the independent council act was allowed to lapse) to supposedly govern special prosecutors.

  3. Slightly OT, but I have it on good authority that Orin Kerr has been named Monica Lewinsky’s official law blogger.

    1. I’ll go out on a limb and bet he’s the only Conspirator who’s been complimented as a Jew by Weev and re-tweeted by Monica Lewinsky.

      1. And participated in an April Fools Day gag that took in the NYT.

  4. It seems a bit odd for this to be decided prior to the AG’s release of the edited version. What if the redactions done make it pretty much clear that not much further would be gained in the public interest by un-redacting the names and methods that might be indicated? GJ precedent is strong, and it’s a bit bizarre for this to come up while the AG *and the original authoring team* are working on the very initial public release.

    It’s not like they’re permanently Sharpie-ing over the underlying release document and sending the originals to the shredder.

    1. If you don’t perceive some chance that this administration attempt — perhaps by measures including destruction of documents — to prevent its successors from reviewing information that might be inconvenient, I have a Trump University course credit for sale. Make that as many Trump University vouchers as you are willing to purchase.

      1. So, absent a criminal indictment, or other basis for a evidence protection order, why would the Trump administration be less entitled to destroy documents than any prior administration?

      2. You think they’ll use bleach-bit, or smash the media with hammers?

        1. Maybe they’ll use WhatsApp, and claim to be forwarding screenshots?

      3. It’s not like Mueller has been sent to the gulag. If the report is buried, distorted significantly, or otherwise meaningfully deviates from what he submitted, he can step in front of a camera at any time.

        1. Republicans seem content to enable Republicans to make all of the judgment calls, and announcements, in this context.

          They seem to have changed from the Benghazi-birther-server days.

          For now, anyway.

          Carry on, clingers.

        2. I think he’s better served by uncertainty; He found diddly squat against Trump, (I’m actually shocked that he couldn’t nail him on SOMETHING, Trump is more squeaky clean than I’d ever have guessed.) but by keeping the report secret it frees people to think that there’s dirt in it.

          That’s likely why he threw in that line about not exonerating Trump of obstruction. You don’t have to exonerate somebody when you didn’t have a case for them being guilty in the first place.

          1. Where do you buy your glasses?

  5. Personally, I’m getting tired of this nonsense and these demands for “immediate and full release”.

    It’s a report. It needs to be edited to block classified and/or grand jury testimony. In accordance with the law. That takes time for a 400 page report, and 2 weeks is not at all unreasonable. It’s already been more than 2 years, what’s another 2 weeks?

    If the report was just released, without any redactions, Democrats would likely be howling that it violated the law, it revealed sources, and it affected any future trials, and they’d try to indict Trump based on that.

    I’ve got no worries about the report somehow disappearing. I’m sure Mueller and at least 3 other people have copies of it somewhere. Mueller will probably testify before Congress on it at some point. If anything is blocked out that shouldn’t be, Mueller will let them know.

    1. None of those restrictions apply to Congress, yet the DoJ is still reluctant.

      I don’t know that Barr’s summary is misleading, but the GOP sure seems to think they know.

      Democrats would likely be howling
      You shouldn’t need to speculate about counterfactuals to make your case.

      1. Actually, those restrictions do apply to Congress, unless Congress gets a court authorized subpoena otherwise. Look up the regulations.

        Moreover, classified information regulations apply to Congress as well. To give a direct example, the FISA warrants on Carter Page (which one might expect could be part of the Mueller report) are still heavily redacted and haven’t been seen by all of Congress unredacted.

        1. Where are these regs? Because in analogy to the tribunal, I would not expect Congress to be considered the public in it’s oversight role.

          classified information regulations apply to Congress as well
          Now I know this is not true. At least so far as Congress’ clearance process is not based on executive action at all – it tends to follow committee assignments.

          Plus, of course, a warrant’s contents is going to be a lot more raw; it’s not the same as a report.

          1. “Where are the regs”

            https://www.justia.com/criminal/docs/frcrimp/ Rule 6

            Feel free to find the special Congress exemption, where they don’t need a court to sign off first.

            Classified information regs do apply to Congress. The 535 members of Congress do not all have top secret clearance. Each individual cannot walk in, pick out whatever they want from the CIA or FBI mainframe, make a copy, and walk out. What they have is oversight, which is different. As as you’ve noted, the certain committees have certain rights to request information. For example, under the Intelligence act of 1980, the Intelligence Subcommittee has certain rights. But again, I’ll refer you back to the Nunes memo, and the classified information issues that surrounded it. Nunes (head of the intelligence subcommittee) could see certain things. But a Freshman congressman on the interior subcommittee might not be able to.

            “Of course a warrant’s report is going to be a lot more raw”.

            Based on what knowledge exactly??? You’re comparing Grand Jury testimony to indict, information that is classically kept secret, to a warrant application for surveillance, which is also classically kept secret.

    2. Gee I don’t know. Perhaps it’s because some of us don’t trust Trump, and by extension, Trump’s minion, Barr.

      1. But you trust Mueller?

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