Legal Sidebari
Grand Jury Secrecy and Impeachment:
Implications of D.C. Circuit Ruling on the
Special Counsel’s Report
March 20, 2020
Following the conclusion of Special Counsel Robert S. Mueller III’s investigation of Russian interference
in the 2016 election and related matters, the Attorney General released a public version of the Special
Counsel’s report concerning the investigation, with redactions. Many of the redactions related to matters
occurring before the grand jury that had been convened in the investigation, as Rule 6(e) of the Federal
Rules of Criminal Procedure (Rule 6(e)) provides for the secrecy of grand jury proceedings unless an
exception applies. Certain Members of Congress were offered the opportunity to review a less redacted
version of the report, but the Attorney General has maintained that Rule 6(e) prohibited the disclosure of
grand jury information even to Congress.
In July 2019, the House Judiciary Committee filed an application in federal district court for an order
authorizing the Department of Justice (DOJ) to release, among other things, the portions of the Special
Counsel’s report that were redacted pursuant to Rule 6(e). The Committee argued that it needed the
redacted portions of the report to determine whether to recommend articles of impeachment against the
President, and that authorizing DOJ to release of the grand jury material was thus permissible pursuant to
a Rule 6(e) exception for disclosures “preliminarily to or in connection with a judicial proceeding.” The
district court granted the Committee’s request, and, on March 10, 2020, a panel of the U.S. Court of
Appeals for the D.C. Circuit (D.C. Circuit) affirmed that decision in a 2-1 ruling. The appellate court
ruling, should it stand, appears to establish a favorable framework for Congress to obtain grand jury
materials in the course of future impeachment investigations. This Sidebar accordingly provides an
overview of Rule 6(e) governing grand jury secrecy and the “judicial proceeding” exception, addresses
the appellate court decision regarding the Special Counsel’s report, and briefly discusses some possible
implications of the decision.
Federal Rule of Criminal Procedure 6(e)
To protect the innocent, encourage full disclosure by witnesses, and prevent those under scrutiny from
fleeing, among other things, Rule 6(e) establishes the secrecy of grand jury proceedings by setting out a
list of persons, including grand jurors and “attorney[s] for the government,” who “must not disclose a
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matter occurring before the grand jury” unless the Federal Rules of Criminal Procedure “provide
otherwise.” The prohibition is indefinite (i.e., the secrecy interest is not eliminated merely because a
grand jury has completed its investigation and either issued an indictment or declined to do so). However,
Rule 6(e) also contains a series of exceptions to the general rule of grand jury secrecy that permit
disclosure of grand jury matters under certain circumstances. Many of the exceptions require a court order
before any disclosure of a grand jury matter may occur.
One exception in particular permits a court to “authorize disclosure—at a time, in a manner, and subject
to any other conditions that it directs—of a grand-jury matter . . . preliminarily to or in connection with a
judicial proceeding.” A person seeking grand jury materials pursuant to this exception may file a “petition
to disclose” in the district where the grand jury convened. The Rule does not define the term “judicial
proceeding,” but some courts have viewed the exception as extending beyond actual court proceedings to
include certain administrative or “quasi-judicial” proceedings (for example, attorney disciplinary
proceedings). Additionally, several federal courts have authorized disclosure of grand jury materials to
Congress in the impeachment context, though these orders generally have not contained significant
analysis of how an impeachment trial fits within the “judicial proceeding” exception. Regardless,
assuming a particular proceeding constitutes a “judicial proceeding” for purposes of the Rule, disclosure
must still be “preliminarily to or in connection with” that proceeding. The Supreme Court has said that the
relevant inquiry in this respect is the purpose and use for which the information is being requested: “If the
primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure
. . . is not permitted.”
A person or entity seeking court-authorized disclosure based on the “judicial proceeding” exception must
also establish a “particularized need” for the materials at issue, which requires a showing that the
materials are “needed to avoid a possible injustice in another judicial proceeding, that the need for
disclosure is greater than the need for continued secrecy, and that their request is structured to cover only
material so needed.” The Supreme Court has characterized this “particularized need” standard as a
“highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of
secrecy are greater in some situations than in others.”
Application for Grand Jury Materials in the Special Counsel’s Report
In its application seeking (among other things) authorization for disclosure of the grand jury information
in the Special Counsel’s report, the House Judiciary Committee argued that it needed the information as
part of its investigation “to determine whether the Committee should recommend articles of impeachment
against the President” based on the facts contained in the report. (The President was subsequently
impeached based on distinct allegations.) According to the Committee, a Senate impeachment trial is a
“judicial proceeding” within the meaning of Rule 6(e), and a Committee investigation to determine
whether to recommend articles of impeachment “is ‘preliminar[y] to’ the impeachment trial” for purposes
of the Rule. The Committee also asserted that it had a “particularized need” for the materials, as (1) the
materials were “necessary for the Committee to assess the meaning and implications” of the Special
Counsel’s report, including with respect to particular circumstances that could bear on impeachable
offenses; (2) the need for the information far outweighed the need for continued secrecy given prior
public disclosures and that a “high degree of ‘continued secrecy’ could in fact be maintained” through
confidentiality protocols adopted by the Committee; and (3) the Committee had tailored its request to
cover only “critical” materials, i.e., “information that the Special Counsel deemed sufficiently significant
to be included or referenced in the Report itself,” among other things.
DOJ opposed the Committee’s application, however, asserting that “judicial proceedings” are “legal
proceedings governed by law that take place in a judicial forum before a judge or magistrate,” and thus
Senate removal proceedings do not fit within the meaning of the term. Additionally, even assuming a
Senate impeachment trial could be considered a judicial proceeding, DOJ argued that the Committee’s
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investigation at that point was “too far removed’ and “laden with contingencies” to be considered
“preliminar[y] to” the proceeding. Finally, DOJ maintained that the Committee did not carry its burden of
demonstrating a “particularized need” for the grand jury materials. According to DOJ, Committee
leadership already had access to 99.9% of the relevant material from the Special Counsel’s report, and the
Committee’s explanation for why it needed the remaining 0.1% was speculative.
In an opinion issued October 25, 2019, the district court agreed with the Committee that its investigation
was “preliminar[y] to” the “judicial proceeding” of a Senate impeachment trial and that the Committee
had shown a particularized need for the grand jury information in the Special Counsel’s report. The court
accordingly ordered DOJ to provide the Committee promptly with all portions of the Special Counsel’s
report that were redacted pursuant to Rule 6(e), among other things.
DOJ then appealed to the D.C. Circuit, largely reiterating the arguments it had made in the district court
and asserting that the House of Representatives’ approval of two articles of impeachment in the interim
“fundamentally alter[ed]” the case, as the distinct issues underlying those articles had become “the sole
focus of the Committee’s impeachment inquiry” such that there was “no further need, let alone a
particularized need,” for grand jury information from the Special Counsel’s report. DOJ also claimed that
allowing the district court’s decision to stand would create “substantial constitutional difficulties” because
of Rule 6(e)’s recognition that a court may authorize disclosure with conditions. In DOJ’s view, this
provision “would likely be unconstitutional as applied to impeachment proceedings,” because the
Constitution’s separation of powers preclude the judiciary from enforcing such conditions against
Members of Congress. DOJ thus argued that the difficulty in applying part of Rule 6(e) in the context of
impeachment was “a compelling reason to doubt that congressional proceedings are ‘judicial
proceeding[s]’ under the Rule.” In response, the Committee maintained on appeal that the requested
materials were still needed, because they would bear on issues “in the rapidly unfolding impeachment
proceedings” and remained “central to the Committee’s ongoing inquiry into the President’s conduct.”
The Committee additionally averred that it would actually create constitutional problems to deny the
Committee access to the grand jury materials, as that outcome would effectively “authorize the Executive
Branch to withhold material that the House needs to carry out its impeachment function.”
In a 2-1 decision, a panel of the D.C. Circuit affirmed the district court’s order on March 10, 2020. The
majority opinion recognized that Supreme Court and circuit precedent, including a 1974 en banc decision
addressing the disclosure of grand jury materials to the House Judiciary Committee in connection with its
impeachment investigation of President Nixon, established that a Senate impeachment trial is a “judicial
proceeding” under the Rule to which a Committee investigation may be preliminary. The majority also
viewed the text of the Constitution, history, and past practice as all supporting the same conclusion. And it
rejected DOJ’s argument that authorizing disclosure would raise separation-of-powers concerns, noting
that judicial refusal to grant congressional access to grand jury materials in an impeachment investigation
when DOJ itself is barred from releasing them without court authorization would “not empower
Congress” but would rather “impede[]” it. Finally, the majority affirmed that the House Judiciary
Committee had shown a “particularized need” for the grand jury materials in the Special Counsel’s report,
emphasizing the “highly flexible” nature of the inquiry. The majority concluded the Committee’s need
“remain[ed] unchanged” despite the approved articles of impeachment because the Committee had
“repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the
Committee may recommend new articles of impeachment.” Rejecting the view that the redacted grand
jury information required line-by-line examination, the majority acknowledged a “compelling need to be
able to reach a final determination about the President’s conduct described in the” report overall and
observed that it could not “tell the House how to conduct its impeachment investigation or what lines of
inquiry to pursue.” The majority also recognized that the request was sufficiently tailored to its need and
that in light of the public interest in a thorough investigation and special protocols the Committee adopted
to restrict access to the grand jury materials, the need for continued secrecy was outweighed by the need
for disclosure.
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One judge on the panel dissented. Notably, the dissenting judge largely agreed with the majority on the
central issues in the case. However, the judge dissented on grounds that were not raised or disputed by the
parties: in the dissenting judge’s view, while the district court could rightfully “authorize” DOJ to disclose
the grand jury materials pursuant to Rule 6(e), it lacked the power to order DOJ to do so. Specifically, the
dissent looked to the text of Rule 6(e), which speaks of a court “authoriz[ing] disclosure,” and determined
that the text permits a court to exercise its traditional supervisory authority over grand juries by removing
the impediment that would otherwise bar DOJ (which typically acts as the custodian of grand jury records
under the Rules) from disclosing grand jury materials. However, from the dissent’s perspective, Rule 6(e)
does not authorize the judiciary to compel the executive branch to turn over such materials, as such an
action would constitute a core exercise of judicial power requiring the party seeking the materials (in this
case, the Committee) to demonstrate standing—i.e., a concrete injury and certain other prerequisites—
under Article III of the Constitution. And this, in the dissent’s view, the Committee could not do, because
a different panel of the D.C. Circuit recently held in Committee on the Judiciary of the U.S. House of
Representatives v. McGahn that the House Judiciary Committee lacked standing to use the courts to
enforce a subpoena against the executive branch. (The D.C. Circuit has since vacated the judgment in
McGahn in the course of granting review by the full court.)
In response, the majority noted that “[n]umerous courts have recognized that grand jury records are court
records” and “do not become Executive Branch documents simply because they are housed with” DOJ.
Thus, according to the majority, “it is the district court, not the Executive or the [DOJ], that controls
access to the grand jury materials at issue,” and a district court merely “exercise[s] its continuing
supervisory jurisdiction concerning the grand jury” in using that control to “order[] ‘an attorney for the
government’ who holds the records to disclose the materials” pursuant to a Rule 6(e) exception. A
separate concurrence—written by the author of the McGahn opinion—additionally accused the dissent of
“chas[ing] jurisdictional phantoms,” recognizing that although “the relationship between the grand jury
and Article III courts is, to put it mildly, ‘very under-theorized,’” the case before the court did “not
involve a suit between the political branches over executive-branch documents or testimony” but simply
“an application for access to records of the grand jury, whose disclosure the district court has traditionally
controlled.”
Implications
The D.C. Circuit’s recent decision appears to support fairly broad congressional access to grand jury
information in the impeachment context. The majority opinion held, in a far less equivocal fashion than
prior cases, that an impeachment inquiry is “preliminar[y] to” a “judicial proceeding” such that grand jury
materials may be disclosed to Congress. The court also seemed to take a flexible and deferential approach
to Congress’s assertion of a “particularized need” for the materials in that context.
As such, should the decision stand, it would appear to constitute a favorable precedent for
Congress to obtain grand jury materials (at least in the District of Columbia) in the course of
future impeachment investigations, even where DOJ objects and judicial compulsion is required.
However, DOJ could request that the panel or full court rehear the case, and eventual Supreme
Court review is also a possibility, meaning that multiple avenues still exist for the decision
potentially to be overturned. Regardless of the ultimate outcome with respect to the grand jury
information in the Special Counsel’s report, Congress is free to amend Rule 6(e) to permit or
restrict disclosure in circumstances not currently addressed by the Rule, as it has done in the past.
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Author Information
Michael A. Foster
Legislative Attorney
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