Attorney General William Barr is under fire from congressional Democrats for refusing to release a fully unredacted copy of special counsel Robert Mueller’s report. It seems not to matter to them that it is illegal for the attorney general to reveal the redacted information.
In fact, that may be an attractive feature for the Democrats because they can act tough and proclaim that we’re in a “constitutional crisis,” while knowing that Barr will not suffer any injury because the law is on his side.
Much of what remains redacted in the Mueller report is secret grand jury testimony the attorney general cannot legally disclose. Rule 6(e) of the Federal Rules of Criminal Procedure prohibits him from releasing that information. It similarly prohibits judges from releasing that information except within certain narrow exceptions. And there’s good reason for that.
If grand jury proceedings were routinely unsealed, witnesses would be less likely to come forward or testify fully and honestly. Witnesses could suffer retaliation, and people who were accused but exonerated by the grand jury might suffer public ridicule or censure.
Despite this, the 2nd, 7th, and 11th U.S. Circuit Courts of Appeals have held that district judges have the inherent authority to release grand jury records that the judge, in his or her sole discretion, decides are “historically significant.”
The 11th Circuit’s opinion was recently vacated, and the court will re-examine the issue en banc. These three courts reasoned that the power to disclose historically significant grand jury records is inherent in the lower courts because they supervise the grand jury.
The D.C. Circuit (the governing jurisdiction for Congress and the Department of Justice) has rejected these cases, and the 6th and 8th Circuits have held that courts lack inherent authority over grand juries.
These three circuits correctly recognize that the grand jury is separate from the courts. Judges, therefore, do not have the authority to disclose grand jury records except to the extent that Congress has permitted them to in Rule 6(e).
Strict adherence to Rule 6(e) is correct for another reason: It prevents judges from disclosing grand jury records based on their personal policy preferences.
The test of “historical significance” is amorphous; it can mean whatever a judge wants it to mean. In short, this test easily can become a cloaking device for a judge’s policy preferences.
As Thomas Jipping of The Heritage Foundation discussed recently, judges should not decide cases based on their personal preferences. And they should not expand their power—particularly in ways that let them decide cases based on their personal preferences—when Congress has expressly delineated their powers.
With the circuit courts split, and a political fight raging over redacted grand jury records in the Mueller report, the Supreme Court soon may take up the issue. The court should settle the matter and hold that the lower courts lack inherent authority to expand Rule 6(e) beyond its text.