Columbia Professor: Barr Can Release Grand Jury Information But Does Not Want To Do So

As we await the release of the Special Counsel report, there are some curious standards being suggested for the release of grand jury information. Various media organizations have featured experts insisting that Barr could release such information called Rule 6(e) information. That is news for me. I was counsel in one of the largest Rule 6(e) cases, the Rocky Flats Grand Jury case, years ago in Denver. Yet, the Nation has posted an explanation by Columbia University Law Professor Jeffrey Fagan that the rules for such disclosure are “elastic” and Barr could be “creative” in making releases. In my view, that is in direct contradiction with not just long-standing but recent precedent. There should not be just a wildly different account by legal experts on such a question so I would like to explain why such views are misplaced.

Professor Fagan is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School and teaches Epidemiology at the Mailman School of Public Health at Columbia University.

Here is the part of the article that attracted by attention (and was highlighted on Reddit):

“Last week, Barr told members of the Judiciary Committee that he had no choice in the matter because the law requires that a special counsel follow all Justice Department guidelines in the course of an investigation, and they include such a provision. But Columbia University legal scholar Jeffrey Fagan said, in an e-mail exchange, that the guideline is “very elastic.” . . .

Barr also claimed that a recent court ruling precluded him from releasing grand-jury material. According to the decision handed down two weeks ago, judges don’t have inherent authority to release grand-jury testimony, meaning they can’t order their release for reasons other than those spelled out in the law. But Fagan says that Barr could ask a judge to do so under the existing statute. “All he has to do is be somewhat creative and cautious at the same time, reassuring the court that this is not new law or precedent,” he said, adding: ‘If he wanted to. Which it seems he doesn’t. Which is not a surprise to anyone. It’s obvious that he’s playing both sides of that divide in this case, employing a strategy tailored to suit his patron at the White House.'”

I am not sure what being “creative and cautious” would amount to in this circumstances, but I do know what Federal Rule of Criminal Procedure 6(e) says and how it has been interpreted. This information is viewed as strictly barred from disclosure except under narrow conditions. It is true that you can ask for a court order though even that is limited by recent decisions.

Just a week ago, the D.C. Circuit rejected a district court’s claim to have the “inherent supervisory authority” to disclose grand jury matters that are historically significant. Senior Judge Douglas Ginsburg wrote for the majority opinion for himself and Judge Gregory Katsas. Judge Sri Srinivasan dissented. After discussing the reason for the strict secrecy governing grand jury information, the court barred what Professor Fagan might call “creative” logic. In reading Rule 6(e)(2)(B) with the specifically enumerated exceptions to the secrecy requirement  in Rule 6(e)(3), the court concluded that federal law “explicitly require[s] secrecy in all [] circumstances” other than the specifically listed exceptions.

The panel specifically looked at the Nixon precedent from Haldeman v. Sirica where the D.C. Circuit upheld the decision of Chief Judge John Sirica of the U.S. District Court for the District of Columbia to disclose sealed grand jury records to the House Judiciary Committee. The panel questions the “ambiguous logic” of the court in that case but held that Haldeman was not based on inherent authority but rather fell within an express exception to allow for disclosure in “judicial proceedings.” The court ultimately adopts a narrow view in line with the Sixth Circuit and declines “to craft an exception to grand jury secrecy outside the terms of the Rule.”

This brings us back to Professor Fagan’s view that the rule is “very elastic.” It is anything but elastic in the view of the D.C. Circuit. One can certainly disagree with the decision. I argued for such inherent authority in the Rocky Flats case but the D.C. Circuit view is shared by many judges. I am not sure what it means to say that “All [Barr] has to do is be somewhat creative and cautious at the same time, reassuring the court that this is not new law or precedent.” It is precedent in a major rulings and clear on it restrictive interpretation. It is from the same court that issued Haldeman. Thus, I am baffled by the statement that ‘If [Barr] wanted to. Which it seems he doesn’t. Which is not a surprise to anyone. It’s obvious that he’s playing both sides of that divide in this case, employing a strategy tailored to suit his patron at the White House.'” I find that rather unfair to Barr. He is following the long-standing view of the Justice Department that has been steadfastly maintained by a long-line of administrations.

33 thoughts on “Columbia Professor: Barr Can Release Grand Jury Information But Does Not Want To Do So”

    1. His is not an informed opinion. You give his institutional address without noting that he is not a lawyer and was not hired to teach law, you confuse your readers.

      1. “he is not a lawyer and was not hired to teach law’.
        So what? It’s “highly probable ” that he’s read WikiPedia material on the subject,, as well as text “excerpted from” the WikiPedia source.

    2. Why should we clear thinking people have to put up with morons? His underlining thought is to poke his thumb in POTUS eye. If I hear any more of this misguided s**t, I am going to jump off the tallahatchie bridge. and wait for a free rescue, free rehab, free medical care, and a go fund me account, food stamps, free housing, car, smart phone. Let’s see, what else can I think of?

  1. Yet, the Nation has posted an explanation by Columbia University Law Professor Jeffrey Fagan that the rules for such disclosure are “elastic” and Barr could be “creative” in making releases.

    Sounds like the strategy employed by The Firm representing a Chicago mob organization:

    Avery Tolar : Do you think l’m talking about breaking the law?

    Mitch McDeere : No, I’m just trying to figure out how far you want it bent.

    Avery Tolar : As far as you can without breaking it.

  2. In a mystical realm of hysteria and incoherence, we carry out the order of the day: Nullify the Constitution, ignore the law, abet chaos and allow anarchy.
    _______________

    “We’ll know our disinformation program is complete when everything the American public believes is false.”

    – William Casey, CIA Director 1981-1987
    ________________________________

    And the Constitution and Bill of Rights do not provide maximal freedom to individuals while limiting and severely restricting, what is intended by the Founders to be, an infinitesimal government, which exists solely to facilitate the freedom of individuals.

    No, in the minds of the anti-American purveyors of the principles of communism in America, the Constitution states simply, “You all can do anything you want, however you want, whenever you want and wherever you want.”

    Constitutional America is over and has been since the “Reign of Terror” conducted by “Crazy Abe” Lincoln.
    ____________________________________________________________________________________

    “These proceedings are closed!”

    – General MacArthur
    ________________

    With an invaded, conquered, deranged Congress, and a Supreme Court subversive of and silent on the “manifest tenor” of the Constitution, any President, in order to save the republic, would be fully justified in temporarily suspending fundamental law, seizing power, as Abraham Lincoln did, neutralizing anti-American forces, ruling by executive order and reestablishing the dominion of the original Constitution and Bill of Rights.

  3. Dig a little deeper and one can quite probably find a connection to Fagan’s unprofessional opinon and his home political party.

  4. There may be enough in the Mueller report that indicates that a crime has been committed and if Barr were to get the grand jury information he would have what is needed to follow up with indictments that he doesn’t want to make. Barr won’t go there. Congress, otoh, probably will.

    1. If there were enough in the Mueller report to indicate a crime had been committed, that his team had “what is needed to follow up with indictments” why didn’t Mueller issue them already?

      1. batoudsan,
        It’s in there….it’ll just be “redacted”. Stay tuned to hear more about the Barr/ DOJ “redactions’, and that hide all that incriminating evidence😉.
        Mueller remains mute on this, so even if Barr redacted all of the criminal offenses the OSC found as the bases for indictment, Mueller and the rest of the OSC team will not come forward to challenge Barr’s cover-up.
        That’ll leave the door open to all kinds of analytical🧐🤔 speculation about what the redacted portions “really” concealed.
        If you channel surf at all, you will at some point run across an Pencil Neck Schiff interview explaining all of this.

        1. PS ..The Democrats had every right to Chair the House Committees after getting the majority after the 2018 midterms.
          It seems that they would have been better served by appointing a more objective, non- partisan member of the House to chair the House Judiciary and Intelligence Committees.
          Why weren’t Maxine Waters and Rabida Tlaib put in these positions instead of Pencil Neck and Lipo Man?

    1. Would the FISA judges show their faces in public?

      A short few hundred years ago, those officers might be facing a swift Drawing and Quartering or perhaps guillotines.

  5. When you have to wee off the deck where all others can see you don’t want to do so. But you have to or the wee will be in your pants.
    That is where Barr stands.

  6. Excerpted from Rule 6 of the Federal Rules for Criminal Procedure:

    [edit]

    (2) Secrecy.

    (A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).

    [edit]

    (3) Exceptions.

    (A) Disclosure of a grand-jury matter—other than the grand jury’s deliberations or any grand juror’s vote—may be made to:

    (i) an attorney for the government for use in performing that attorney’s duty;

    (ii) any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law; or

    (iii) a person authorized by 18 U.S.C. §3322.

  7. Excerpted from Rule 6 of the Federal Rules for Criminal Procedure:

    (B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attorney’s duty to enforce federal criminal law. An attorney for the government must promptly provide the court that impaneled the grand jury with the names of all persons to whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation of secrecy under this rule.

    [edit]

    (E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter:

    (i) preliminarily to or in connection with a judicial proceeding;

    (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury;

    (iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation;

  8. If, or when, Congress requests or subpoenas Mueller’s grand jury information, then, and only then, can Judge Beryl Howell convene hearings on what grand jury information might be produced to Congress. After those hearings, Judge Howell can make her ruling and issue the court’s order to transmit the agreed upon grand jury information to Congress. It is not AG Barr’s request to make. It is Congress’ request to make. Nor is it AG Barr’s decision to make. It is Judge Howell’s decision to make. However, AG Barr and other Justice Department lawyers can and will no doubt argue in Judge Howell’s court for withholding whatever grand jury information they need to withhold to protect ongoing investigations.

    In the meantime, Roger Stone’s lawyers have filed a motion for discovery of the entire, un-redacted Mueller report under that provision of Rule 6(e) that allows defendants to discover grand jury information necessary to prepare a defense. One would imagine that a fair bit of grand jury information would be contained in the Mueller report. So, if the trial judge for Roger Stone, Judge Amy Berman Jackson, rules in favor of Stone’s discovery motion, then she is going to have to confer with Judge Beryl Howell and who knows how many other defense counsels or Justice Department lawyers to figure out what portions of Mueller’s grand jury information are necessary to prepare a defense for Roger Stone.

    I suspect that Congress will get the grand jury information it requests at around the same time (“?”) that Stone’s defense counsel get their fair share of Mueller’s grand jury information. (Presumably that would have to be before Stone’s trial gets started.) Because there’s no such thing as executive privilege over grand jury information. In fact, there’s no such thing as State secret privilege over grand jury information either. Because the grand jury information belongs to the Judicial branch–not the Executive branch.

    1. About The Federal Rules of Criminal Procedure that include Rule 6 about grand juries from Wikipedia:

      The rules are promulgated by the Supreme Court of the United States, pursuant to its statutory authority under the Rules Enabling Act. [That’s an Act of Congress} The Supreme Court must transmit a copy of its rules to the United States Congress no later than May 1 of the year in which they are to go into effect, and the new rule can then become effective no earlier than December 1 of that year.

      Congress retains the power to reject the Court’s proposed rules or amendments, to modify them, or to enact rules or amendments itself. Congress has rarely rejected the Court’s proposed amendments, though it has frequently passed its own.

      The rules are initially drafted by an Advisory Committee of the Judicial Conference of the United States, which consists of appointed judges, U.S. Department of Justice representatives, practicing lawyers, and legal scholars. After public comment, the draft rules are submitted to the Standing Committee on Rules of Practice and Procedure, which in turn submits them to the Judicial Conference, which finally recommends them to the Supreme Court for approval. The explanatory notes of the drafting Advisory Committee are published with the final adopted rules, and are frequently used as an authority on their interpretation.

      [end excerpt]

      Any argument that alleges that The Congress has no authority to request nor to subpoena the transmittal of grand jury information to The Congress necessarily flies in the face of the fact that Congress has the Constitutional Power and Authority to Enact The Federal Rules of Criminal Procedure including Rule 6 governing Grand Juries.

      1. Excerpted from the Constitution of the United States of America; following the introductory phrase, “Congress shall have the Power . . . ”

        Article I, Section 8, Clause 9:

        To constitute Tribunals inferior to the supreme Court;

        [brief explanation]

        The Constitution provides only for a Supreme Court, and left it to Congress to create lower (“inferior”) courts, and to set their jurisdictions and duties.

        [end excerpt]

        So there, you Flaming Dipsticks with Broken Off Tips, you. Congress has the Constitutional Power and Authority to request and to subpoena Grand Jury information. And, on the odd chance that The Supreme Court “decides” to quash a Congressional subpoena for Grand Jury information, be advised that The Congress has the power to Impeach Justices of the Supreme Court of the United States. And, on the odd chance that The President of the United States tried to prevent the Impeachment of Supreme Court Justices by force of arms . . . (Huh? Whaaaaaa?????) . . . Yeah. You read that right. Now read this:

        This ain’t no party. This ain’t no disco. This ain’t no fooling around.

  9. Clearly The N***** rag (oops) mag has found a useful idiot to provide the rag with what appears to be a learned opinion but is only provided enough sense and learned sense to wash dishes. Nevertheless, a college educated dish washer. Now, what does that say about The N*****?

  10. Disclosing grand jury transcripts is a felony in the Penal Law of New York. Unauthorized disclosure of an indictment is a misdemeanor. I don’t think there’s anything ‘elastic’ about the wording in the code.

    BTW, professor Fagan may be employed by the law school at Columbia. He is not a member of the New York bar and has no law degree. His public advocacy had been devoted to complaining about effective tactics in law enforcement. In a sane society, he would have no position in academe and would be scorned.

    http://webapp.mailman.columbia.edu/mailman_faculty_5/cv/jaf45_Fagan_CV%20_%20Nov%202013.pdf

      1. He appears to have studied in engineering faculties, but his actual research programme was something akin to industrial psychology followed by public policy studies. Not on point for a law faculty or a public health faculty. Very peculiar.

      2. I assume the non-lawyer in question from Columbia is a leftist that believes the law serves only his purposes and can be changed at will to meet his expectations. That is essentially the attitude we are continuously hearing from the leftist political elite and the populous along with their fear of a court that upholds the Constitution.. Very self-centered.

  11. The Professor is applying the standard articulated in Fagan v. I Want to be on CNN (Upper West Side Circuit 2019).

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