We recently made this observation about justice following three controversial rulings by the U.S. Supreme Court earlier this year: “Justice is dispensed, and laws are interpreted, by the Court today based more on ideology than on prior precedent with legitimate constitutional interpretations.”
An April 5, 2019 split panel decision by the D.C. Court of Appeals in McKeever v. Barr vividly illustrates this observation. In McKeever, the court affirmed a district court’s order denying release of grand jury matters in a 1957 indictment, which McKeever sought during research for a book he was writing.
U.S, Attorney General William Barr has made clear to the public that he will redact all grand jury material compiled during the 22-month investigation by Special Counsel Robert Mueller into whether Donald Trump’s 2016 presidential campaign coordinated efforts with Russians to secure the American presidency.
In response to Barr’s grand jury redaction declaration, the Reporters Committee filed a request in the U.S. District Court for the District of Columbia for an order to have the grand jury materials “cited, quoted, or referenced” in the Mueller report released to the public.
Courts Can Release Grand Jury Testimony
The question is whether the Court has the authority to order the Attorney General to release the grand jury material inasmuch as Rule 6(e) of the Federal Rules of Criminal Procedure encases grand jury proceedings in secrecy. This procedural rule, however, does not insulate from disclosure documents and information either presented to or considered by a grand jury.
At least four federal circuits—the D.C. Circuit, Second Circuit, Seventh Circuit and Eleventh Circuit—have ruled that a federal district court has an “inherent authority” to order the release of grand jury materials.
In fact, as recent as September 2018, the Chief Judge of the D.C. District Court and the judge presiding over the Mueller grand jury, Beryl A. Howell, ruled in In re Unsealed Dockets that she “retains an inherent authority to unseal and disclose grand jury material not otherwise falling within the enumerated exceptions of Rule 6(e).”
The courts have identified nine factors a district court judge should consider before exercising their “inherent authority” to release grand jury materials beyond the Rule 6(e) exceptions:
- The identity of the party seeking disclosure;
- Whether the defendant to the grand jury proceeding or the government opposes the disclosure;
- Why disclosure is being sought in the particular case;
- What specific information is being sought for disclosure;
- How long ago did the grand jury proceedings took place;
- The current status of the principals of the grand jury proceedings and that of their families;
- The extent to which the desired material—either permissibly or impermissibly—has been previously made public;
- Whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and
- The additional need for maintaining secrecy in the particular case in question.
This “inherent authority” rule is consistent with the Supreme Court’s interpretation that Rule 6(e) is “declaratory” of the long-standing “principle” that “disclosure” of grand jury materials is “committed to the discretion of the trial court.”
Discretion of Courts and Political Ideology
But here is where political ideology superseded this historical judicial interpretation in the McKeever decision.
McKeever flies in the face of the D.C. Circuit’s own 1974 historic precedent in Haldeman v. Sirica in which the court recognized a district judge’s inherent authority to order the release of grand jury materials. McKeever also flatly rejected three other federal circuits and a host of district court rulings, like the one made by Judge Howell last September, recognizing the “inherent authority” rule.
McKeever will now present a major (almost certainly an insurmountable) obstacle not only for the Reporters Committee, but for House Democrats or any other interested parties trying to secure the release of the grand jury materials in the Mueller probe.
And here is why McKeever is a politically ideological decision.
Its two majority judges are Republican appointees: Douglas H. Ginsburg appointed by President Reagan and Gregory G. Katsas appointed by Trump. The dissenting judge was Sri Srinivasan, an Obama appointee.
During his confirmation hearings, Katsas—a White House Deputy Counsel at the time—said he not only worked on the White House’s response to the expected Mueller report but also lent his legal expertise to President Trump’s travel ban orders, the White House decision to phase out protections for “Dreamers,” and the president’s widely discredited voter fraud commission—all purely ideological issues.
Like President Trump’s Supreme Court appointee, Neil Gorsuch, who swore to uphold the court’s prior precedents but who has since ignored several historical precedents in an effort to impose his political ideology, rather than constitutional interpretation on the court’s decision-making, Katsas also swore to uphold D.C. Circuit precedents but who conveniently chose to ignore Haldeman v. Sirica in McKeever because it served the interest of the president and Attorney General Barr in their coordinated efforts to suppress all the findings damaging to the president in the Mueller report.
Douglas Ginsburg also has a politically checkered background.
Appointed by Reagan to replace Judge Robert Bork’s failed nomination to the Supreme Court, Ginsburg’s nomination survived a mere nine days before he was forced to withdraw from the nomination after “disclosures about his personal and ethical conduct stirred a storm of criticism,” the New York Times reported.
Like Katsas, Ginsburg had, at the time of his Supreme Court nomination, a habit of using his legal positions to benefit his personal interests.
The Times reported that the ethical concerns that thwarted Ginsburg’s Supreme Court nomination “arose about his action as a Justice Department official in handling a cable television case when he was an investor in a cable company.”
And, of course, history informs us that the Bork and Ginsburg debacles paved the way for Justice Anthony M. Kennedy to secure a consolation seat on the Supreme Court—and whose abrupt retirement in June 2018 quickly opened the door for Trump to nominate D.C. Circuit Court of Appeals Judge Brett Kavanaugh to the high court.
What goes Around Comes Around
In a virulent phrase spewed out to Senate Democrats during his contentious confirmation hearings, Kavanaugh shocked the legal community with the warning to Democrats and anyone else who opposed his nomination that “what goes around comes around.”
The McKeever ruling by judges Ginsburg and Katsas can reasonably be construed as a fulfillment of Justice Kavanaugh’s warning of “what goes around comes around.”
McKeever was not handed down in a political vacuum.
Judges Ginsburg and Katsas—both of whom have bitter historical issues with Democrats—understood Trump would benefit and Democrats would suffer because of their McKeever decision.
Republican federal judges like Gorsuch, Kavanaugh, and Katsas are particularly bound to Trump’s political ideology via conservative groups like the Federalist Society and the Heritage Foundation and to protect everything flowing from that ideology, regardless of its legal and social impact.
We suspect that, because of McKeever, the Mueller grand jury materials will not see the light of day until a Democrat is appointed Attorney General of the United States.
And American will continue to experience, probably for the next generation, the seeds of bitter political and social divisions sewn by Kavanaugh angry warning of “what goes around comes around.”