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.