In re: App. Cmte. of the Judiciary ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 3, 2020 Decided March 10, 2020
No. 19-5288
IN RE: APPLICATION OF THE COMMITTEE ON THE JUDICIARY,
U.S. HOUSE OF REPRESENTATIVES, FOR AN ORDER
AUTHORIZING THE RELEASE OF CERTAIN GRAND JURY
MATERIALS,
COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF
REPRESENTATIVES,
APPELLEE
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-gj-00048)
Mark R. Freeman, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Hashim M. Mooppan, Deputy Assistant Attorney General, and
Michael S. Raab and Brad Hinshelwood, Attorneys.
Douglas N. Letter, General Counsel, U.S. House of
Representatives, argued the cause for appellee. With him on
2
the brief were Todd B. Tatelman, Deputy General Counsel,
Megan Barbero and Josephine Morse, Associate General
Counsel, Adam A. Grogg and William E. Havemann, Assistant
General Counsel, Jonathan B. Schwartz, Attorney, Annie L.
Owens, Mary B. McCord, and Daniel B. Rice.
Elizabeth B. Wydra, Brianne J. Gorod, and Ashwin P.
Phatak were on the brief for amicus curiae Constitutional
Accountability Center in support of the Committee on the
Judiciary, U.S. House of Representatives.
Before: ROGERS, GRIFFITH, and RAO, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Judge GRIFFITH.
Dissenting opinion by Circuit Judge RAO.
ROGERS, Circuit Judge:
Article I of the United States Constitution
provides that the House of Representatives
“shall have the sole Power of Impeachment.”
U.S. CONST. art. I, § 2, cl. 5. Further, the Senate
“shall have the sole Power to try all
Impeachments.” Id. § 3, cl. 6.
The Committee on the Judiciary of the U.S. House of
Representatives seeks to obtain the redacted grand jury
materials referenced in the Special Counsel’s Report in
connection with its impeachment investigation of President
Donald J. Trump. The district court authorized the disclosure
of these grand jury materials pursuant to the “judicial
proceeding” exception in Federal Rule of Criminal Procedure
3
6(e)(3)(E)(i). For the following reasons, because that
exception encompasses impeachment proceedings and the
Committee has established a “particularized need” for the
grand jury materials, the Order of the district court is affirmed.
I.
In May 2017, Deputy U.S. Attorney General Rod
Rosenstein appointed Robert S. Mueller, III, as Special
Counsel to investigate Russian interference in the 2016
presidential election, including any links or coordination
between the Russian government and individuals associated
with President Trump’s election campaign. As part of this
investigation, a grand jury sitting in the District of Columbia
“issued more than 2,800 subpoenas” and almost 80 witnesses
testified before the grand jury. Special Counsel Robert S.
Mueller, III, Report on the Investigation into Russian
Interference in the 2016 Presidential Election, Vol. I at 13
(March 2019) (“The Mueller Report”). In addition, the Special
Counsel’s Office interviewed “approximately 500 witnesses”
under oath, id., including members of the Administration.
On March 22, 2019, the Special Counsel submitted his
confidential two-volume report to the Attorney General
pursuant to 28 C.F.R. § 600.8(c). Volume I summarizes
Russian interference in the 2016 presidential election and
describes the “numerous links between the Russian
government and the Trump Campaign.” Vol. I at 1–3.
Nevertheless, the Special Counsel concluded that “the
investigation did not establish that members of the Trump
Campaign conspired or coordinated with the Russian
government in its election interference activities.” Id. at 2.
Volume II outlines the Special Counsel’s examination of
whether the President obstructed justice in connection with the
Russia-related investigations. The Special Counsel declined to
4
exonerate the President. Citing to an opinion issued by the
Office of Legal Counsel, the Special Counsel stated that
indicting or criminally prosecuting a sitting President would
violate the separation of powers. Notably, for purposes of the
Committee’s need for the redacted grand jury materials, the
Special Counsel stated that a federal indictment would
“potentially preempt constitutional processes for addressing
presidential misconduct.” Vol. II at 1 (citing U.S. CONST. art.
I, § 2, cl. 5; § 3, cl. 6).
The Attorney General released a public version of the
Mueller Report in April 2019, with redactions for grand jury
materials, and other information that he determined could
compromise ongoing intelligence or law enforcement
activities, harm ongoing criminal matters, or unduly infringe
upon the personal privacy interests of peripheral third parties.
Letter from Attorney General Barr to Senate Judiciary
Chairman Graham and Ranking Member Feinstein, and House
Judiciary Chairman Nadler and Ranking Member Collins (Apr.
18, 2019). The Assistant Attorney General wrote the
Committee that certain members of Congress, including the
Chairman and Ranking Members of the House Judiciary
Committee, could review an unredacted version of the Report,
except for redactions relating to grand jury information, which
the Attorney General claimed he was prohibited from
disclosing to Congress by law citing Rule 6(e). Letter from
Assistant Attorney General Boyd to Senate Judiciary Chairman
Graham and House Judiciary Chairman Nadler (Apr. 18,
2019).
In October 2019, the House of Representatives passed
House Resolution 660, which directed six committees,
including the House Judiciary Committee and the House
Intelligence Committee, to continue their ongoing
impeachment investigations. H. Res. 660, 116th Cong. (2019).
5
On December 18, 2019, the full House adopted two Articles of
Impeachment against President Trump. H. Res. 755, 116th
Cong. (2019). The first Article of Impeachment, “Abuse of
Power,” alleges that President Trump “solicited the
interference of a foreign government, Ukraine, in the
[upcoming] 2020 United States Presidential election.” Id. at 1.
The second Article, “Obstruction of Congress,” alleges that
President Trump “directed the unprecedented, categorical, and
indiscriminate defiance of subpoenas issued by the House of
Representatives.” Id. at 2.
The House Judiciary Committee’s Report on the
Impeachment of President Trump asserts that the conduct
described by these Articles is consistent with the President’s
“inviting and welcoming Russian interference in the 2016
United States Presidential election,” H. Rep. No. 116-346, at
127 (2019), and the President’s “endeavor to impede the
Special Counsel’s investigation into Russian interference . . .
as well as [his] sustained efforts to obstruct the Special Counsel
after learning that he was under investigation for obstruction of
justice,” id. at 159–60. The Committee Report also makes
clear that although two Articles of Impeachment have been
approved, the Committee’s impeachment investigation related
to the Mueller Report is ongoing. Id. at 159 n.928; see also
Appellee’s Supp. Br. 17 (Dec. 23, 2019); Oral Arg. Tr. at 59–
60 (Jan. 3, 2020).
On July 26, 2019, the House Judiciary Committee filed an
application for an order authorizing the release of certain grand
jury materials related to the Mueller Report pursuant to Rule
6(e)(3)(E)(i). The Committee requested three categories of
grand jury materials: (1) all portions of the Mueller Report that
were redacted pursuant to Rule 6(e); (2) any portions of grand
jury transcripts or exhibits referenced in those redactions; and
(3) any underlying grand jury testimony and exhibits that relate
6
directly to certain individuals and events described in the
Mueller Report. The Committee proposed a “focused and
staged disclosure” of the first two categories of material, to be
followed as necessary by disclosure of the third category. In re
App. of Comm. on Judiciary, U.S. House of Representatives,
for an Order Authorizing Release of Certain Grand Jury
Materials (“App. for Mueller Report Grand Jury Materials”),
2019 WL 5485221, at *33 (D.D.C. Oct. 25, 2019) (internal
quotation marks and citation omitted). The Department of
Justice, which is the custodian of the grand jury records, see
Rule 6(e)(1), opposed the application and submitted an ex parte
declaration disclosing the contents of the Rule 6(e) redactions
in Volume II and Appendix C of the Mueller Report for the
district court to review in camera. The record indicates that the
district court reviewed this declaration but that the district court
did not receive or review any of the grand jury materials
redacted in Volume I of the Report, nor any of the grand jury
transcripts or exhibits referenced in these redactions.
On October 25, 2019, the district court granted the
Committee’s application. The district court concluded that a
Senate impeachment trial is a “judicial proceeding” under Rule
6(e). App. for Mueller Report Grand Jury Materials, 2019 WL
5485221, at *11. The court noted that “historical practice, the
Federalist Papers, the text of the Constitution, and Supreme
Court precedent all make clear” that “impeachment trials are
judicial in nature and constitute judicial proceedings.” Id. at
*14; see also id. at *14–19. The court further explained that,
in any event, it was bound by circuit precedent to conclude that
an impeachment trial is a “judicial proceeding,” citing
Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc)
and McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019). App.
for Mueller Report Grand Jury Materials, 2019 WL 5485221,
at *19. The district court also found that the Committee
established a “particularized need” because the Committee’s
7
compelling need for the requested material to “investigate
fully” and “to reach a final determination about conduct by the
President described in the Mueller Report,” id. at *35,
outweighs any remaining grand jury secrecy interests, id. at
*37–38, and the requested disclosure was tailored to this need,
id. at *38.
The district court therefore authorized the disclosure of the
first two categories of requested grand jury information: all
portions of the Mueller Report redacted pursuant to Rule 6(e)
and any portions of grand jury transcripts or exhibits referenced
in those redactions. Id. The court ordered the Department to
provide these materials to the Committee by October 30, 2019.
Id. The court also stated that the Committee could file
additional requests articulating its particularized need for the
third category of grand jury materials requested in its initial
application. Id.The Department appealed and sought a stay pending
appeal from the district court and from this court. The district
court denied a stay pending appeal. This court entered an
administrative stay on October 29, 2019, held oral argument on
the stay motion on November 18, 2019, and then extended the
administrative stay setting the case for expedited briefing and
oral argument on the merits on January 3, 2020.
II.
The Committee asks this court to interpret and apply Rule
6(e) — which is “a familiar judicial exercise.” Zivotofsky ex
rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). Rule 6(e)
codifies the “long-established policy” of maintaining grand
jury secrecy. United States v. Procter & Gamble Co., 356 U.S.
677, 681 (1958). Rule 6(e)(2)(B) provides that “a matter
occurring before the grand jury” must not be disclosed by grand
8
jurors, interpreters, court reporters, government attorneys, or
other persons specifically listed in the Rule. Although Rule
6(e) “makes quite clear that disclosure of matters occurring
before the grand jury is the exception and not the rule,” the Rule
“sets forth in precise terms to whom, under what circumstances
and on what conditions grand jury information may be
disclosed.” McKeever, 920 F.3d at 844 (quoting Fund for
Constitutional Gov’t v. Nat’l Archives & Records Serv., 656
F.2d 856, 868 (D.C. Cir. 1981)), cert. denied, 2020 WL 283746(Jan. 21, 2020). Rule 6(e)(3)(E) provides a list of “exceptions”
to grand jury secrecy, including five circumstances in which a
“court may authorize disclosure . . . of a grand-jury matter.” As
relevant here, Rule 6(e)(3)(E)(i) permits a court to authorize
disclosure “preliminarily to or in connection with a judicial
proceeding,” where the person seeking disclosure has shown a
“particularized need” for the requested grand jury materials,
United States v. Sells Engineering, Inc., 463 U.S. 418, 443
(1983).
The grand jury functions to a large degree at “arm’s
length” from the judicial branch, United States v. Williams, 504
U.S. 36, 47 (1992), but it operates under the auspices of the
district court in which it is convened, see Rule 6(a); 28 U.S.C.
§ 1861 et seq., and “depend[s] on the judiciary in its role as an
investigative body,” United States v. Seals, 130 F.3d 451, 457
(D.C. Cir. 1997). The district court has supervisory jurisdiction
over the grand jury. Morrison v. Olson, 487 U.S. 654, 681 n.20
(1988). Although the district court’s authority over the grand
jury is limited, Williams, 504 U.S. at 47–50, courts may
exercise control over the grand jury in several significant
respects, including the power to summon and empanel the
grand jury and the power to discharge the grand jury, Rule 6(a),
(g). Courts also may control access to the records of a grand
jury investigation conducted under the court’s auspices. As
noted, Rule 6(e) codifies and defines that authority and
9
prescribes the procedures for its exercise. The Committee’s
Rule 6(e)(3)(E)(i) application asks the district court to exercise
its continuing supervisory jurisdiction concerning the grand
jury to authorize and order the release of grand jury records.
Numerous courts have recognized that grand jury records
are court records. Carlson v. United States, 837 F.3d 753, 758–
59 (7th Cir. 2016); Standley v. Dep’t of Justice, 835 F.2d 216,
218 (9th Cir. 1987); In re Grand Jury Investigation of
Cuisinarts, Inc., 665 F.2d 24, 31 (2d Cir. 1981); United States
v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979). “The grand
jury minutes and transcripts are not the property of the
Government’s attorneys, agents or investigators . . . . Instead
those documents are records of the court.” Procter & Gamble
Co., 356 U.S. at 684–85 (Whittaker, J., concurring). But even
where doubt is expressed whether grand jury records are
judicial records, Rule 6(e)(3)(E) vests courts with control over
the disclosure of these records and courts exercise this control
“by ordering ‘an attorney for the government’ who holds the
records to disclose the materials,” McKeever, 920 F.3d at 848
and id. (quoting Rule 6(e)(1)).
Although the grand jury “has not been textually
assigned . . . to any of the branches,” Williams, 504 U.S. at 47,
it “remains an appendage of the court,” Seals, 130 F.3d at 457
(quoting Brown v. United States, 359 U.S. 41, 49
(1959), overruled on other grounds by Harris v. United
States, 382 U.S. 162 (1965)). Grand jury records do not
become Executive Branch documents simply because they are
housed with the Department of Justice. For instance, in the
Freedom of Information Act context, where “documents
remain within the control of the court and the grand jury,” those
documents are not “agency records” and are not subject to
FOIA’s disclosure requirements that otherwise apply to agency
documents even if they are in the possession of the Department
10
of Justice. Tigar & Buffone v. Dep’t of Justice, 590 F. Supp.
1012, 1014–15 (D.D.C. 1984). As the Ninth Circuit has
explained, “were court documents deemed ‘agency records’ for
purposes of the FOIA when held by the [Department], the Act
would encroach upon the authority of the courts to control the
dissemination of its documents to the public.” Warth v. Dep’t
of Justice, 595 F.2d 521, 523 (9th Cir. 1979). This court has
applied similar reasoning to congressional documents
transmitted from Congress to the Executive. Am. Civil
Liberties Union v. CIA, 823 F.3d 655, 667–68 (D.C. Cir. 2016).
In short, it is the district court, not the Executive or the
Department, that controls access to the grand jury materials at
issue here. The Department has objected to disclosure of the
redacted grand jury materials, but the Department has no
interest in objecting to the release of these materials outside of
the general purposes and policies of grand jury secrecy, which
as discussed, do not outweigh the Committee’s compelling
need for disclosure. Even if the Department had not objected
to disclosure, the district court would still need to authorize
disclosure pursuant to Rule 6(e)’s “judicial proceeding”
exception. See, e.g., In re Report & Recommendation of June
5, 1972 Grand Jury Concerning Transmission of Evidence to
House of Representatives (“In re 1972 Grand Jury Report”),
370 F. Supp. 1219, 1227 (D.D.C. 1974). Requests for grand
jury materials pursuant to Rule 6(e)(3)(E)(i) necessarily require
resolution by the courts.
III.
On the merits, the Department maintains that the district
court erred in concluding that Haldeman and McKeever
establish binding precedent on the correct meaning of the term
“judicial proceeding” in Rule 6(e). Appellant’s Br. 13.
Reviewing de novo the district court’s interpretation of Rule
11
6(e), see United States v. McIlwain, 931 F.3d 1176, 1181 (D.C.
Cir. 2019), these precedents establish that a Senate
impeachment trial qualifies as a “judicial proceeding” under
the Rule.
In In re 1972 Grand Jury Report, Chief Judge Sirica
ordered the disclosure of the grand jury report and
accompanying materials to be delivered to the House Judiciary
Committee, which was then engaged in an impeachment
investigation of President Richard M. Nixon. 370 F. Supp. at1230–31. This court denied mandamus relief in Haldeman,
holding that Chief Judge Sirica had not abused his discretion in
ordering the release of these materials. 501 F.2d at 715–16.
Significantly, this court expressed “general agreement with his
handling of these matters,” observing that Chief Judge Sirica
“dealt at length” with the contention that Rule 6(e) limits the
disclosure of grand jury materials “to circumstances incidental
to judicial proceedings and that impeachment does not fall into
that category.” Id. at 715. Judge MacKinnon’s partial
concurrence concluded that the disclosure fit within the Rule
6(e) exception for judicial proceedings. Id. at 717.
Even assuming that the court’s opinion in Haldeman was
“ambiguous” as to whether the disclosure of grand jury
materials to Congress was permitted under the “judicial
proceeding” exception or the court’s inherent authority, see
McKeever, 920 F.3d at 847 n.3, this court’s decision in
McKeever clarified that district courts lack inherent authority
outside of the exceptions listed in Rule 6(e) to order disclosure
of grand jury material, id. at 844, and understood Haldeman to
conclude that impeachment “fit[] within the Rule 6 exception
for ‘judicial proceedings,’” id. at 847 n.3 (quoting Haldeman,
501 F.2d at 717 (MacKinnon, J., concurring in part and
dissenting in part)). The Department now maintains that this
interpretation of Haldeman is not “precedential,” Appellant’s
12
Br. 33–34, but the court’s interpretation of Haldeman was
essential to this court’s reasoning in McKeever. The dissenting
opinion in McKeever rested principally on the view Haldeman
held “that a district court retains discretion to release grand jury
materials outside the Rule 6(e) exceptions.” McKeever, 920
F.3d at 855 (Srinivasan, J., dissenting). In reaching the
contrary conclusion, the majority in McKeever necessarily
interpreted Haldeman to involve an application of Rule 6(e)’s
“judicial proceeding” exception rather than an exercise of
inherent authority.
Neither in Haldeman nor McKeever did this court explain
in detail why impeachment qualifies as a judicial proceeding,
although the en banc court in Haldeman embraced Chief Judge
Sirica’s analysis, 501 F.2d at 715, and the term “judicial
proceeding” in Rule 6(e) “has been given a broad interpretation
by the courts,” In re Sealed Motion, 880 F.2d 1367, 1379–80
(D.C. Cir. 1989) (collecting cases). The district court’s
interpretation in the instant case is further supported by
traditional tools of statutory construction.
The constitutional text confirms that a Senate
impeachment trial is a judicial proceeding. Article I provides
that “[t]he Senate shall have the sole Power to try all
Impeachments” and further states that when the President “is
tried, the Chief Justice shall preside.” U.S. CONST. art. I, § 3,
cl. 6. The Framers of the Constitution also understood
impeachment to involve the exercise of judicial power. For
instance, Alexander Hamilton referred to the Senate’s “judicial
character as a court for the trial of impeachments.” THE
FEDERALIST NO. 65, at 396 (Clinton Rossiter ed., 1961). The
district court here properly concluded that “the Federalist
Papers, the text of the Constitution, and Supreme Court
precedent all make clear” that “impeachment trials are judicial
in nature and constitute judicial proceedings.” App. for
13
Mueller Report Grand Jury Materials, 2019 WL 5485221, at
*14; see id. at *14–18.
The Department objects that the term “judicial
proceeding” in Rule 6(e) is limited to judicial court
proceedings because the ordinary meaning of the term “judicial
proceeding” does not include a proceeding conducted before a
legislative body and the two other provisions of Rule 6(e) that
use the term “judicial proceeding,” Rule 6(e)(3)(F), (G),
unambiguously refer to a court proceeding. Appellant’s Br.
18–19. These arguments are foreclosed by our precedent and
are unpersuasive in any event. The term “judicial proceeding”
has long and repeatedly been interpreted broadly, and courts
have authorized the disclosure of grand jury materials “in an
array of judicial and quasi-judicial contexts” outside of Article
III court proceedings — such as administrative proceedings
before the United States Tax Court, App. for Mueller Report
Grand Jury Materials, 2019 WL 5485221, at *12–13
(collecting cases). So understood, the term “judicial
proceeding” encompasses a Senate impeachment trial over
which the Chief Justice of the Supreme Court presides and the
Senators constitute the jury. That Rule 6(e)’s other references
may contemplate a judicial court proceeding is of little
significance because “the presumption of consistent usage
‘readily yields’ to context,” Util. Air Regulatory Grp. v. EPA,
573 U.S. 302, 320 (2014) (quoting Envtl. Def. v. Duke Energy
Corp., 549 U.S. 561, 574 (2007)).
Additionally, the historical practice supports interpreting
Rule 6(e) to encompass impeachment. Rule 6(e) was adopted
in 1946 to “codif[y] the traditional rule of grand jury secrecy”
that was applied at common law. Sells Eng’g, 463 U.S. at 425.
As summarized by the district court, Congress has repeatedly
obtained grand jury material to investigate allegations of
election fraud or misconduct by Members of Congress. App.
14
for Mueller Report Grand Jury Materials, 2019 WL 5485221,
at *18–19. The Department dismisses this practice because no
example involved impeachment proceedings. Appellant’s Br.
29–32. But these examples evince a common-law tradition,
starting as early as 1811, of providing grand jury materials to
Congress to assist with congressional investigations. See In re
1972 Grand Jury Report, 370 F. Supp. at 1230. And historical
practice reflects at least one example of a court-ordered
disclosure of grand jury materials to the Committee — prior to
the Rule’s enactment — for use in its impeachment
investigation of two federal judges. Conduct of Albert W.
Johnson and Albert L. Watson, U.S. District Judges, Middle
District of Pennsylvania: Hearing before Subcomm. of the H.
Comm. on the Judiciary, 79th Cong., at 63 (1945).
Since Rule 6(e) was enacted, federal courts have
authorized the disclosure of grand jury materials to the House
for use in impeachment investigations involving two presidents
and three federal judges. See generally In re 1972 Grand Jury
Report, 370 F. Supp. 1219 (President Nixon); Order, In re
Madison Guar. Sav. & Loan Ass’n, Div. No. 94-1 (D.C. Cir.
Spec. Div. July 7, 1998) (per curiam) (President Clinton); In re
Request for Access to Grand Jury Materials Grand Jury No.
81-1, Miami (“Hastings”), 833 F.2d 1438 (11th Cir. 1987)
(Judge Alcee Hastings); Order, Nixon v. United States, Civ. No.
H88-0052(G) (S.D. Miss. 1988) (Judge Walter Nixon),
referenced in H.R. Rep. No. 101-36, at 15 (1989); and Order,
In re Grand Jury Investigation of U.S. District Judge G.
Thomas Porteous, Jr., No. 2:09-mc-04346-CVSG (E.D. La.
Aug. 6, 2009). It is only the President’s categorical resistance
and the Department’s objection that are unprecedented. Oral.
Arg. Tr. at 11–12; McGahn, No. 19-5331, Oral Arg. Tr. at 21
(Jan. 3, 2020). In interpreting the Rule, this established
practice deserves “significant weight.” Cf. NLRB v. Noel
Canning, 573 U.S. 513, 524–26 (2014) (emphasis omitted).
15
The Department worries that reading Rule 6(e) to
encompass impeachment proceedings would create separation-
of-powers problems. It maintains that the particularized need
standard for all applicants under Rule 6(e)(3)(E) is “in
considerable tension with the House’s sole power of
impeachment,” Appellant’s Br. 49, and would invite courts to
“pass[] judgment on the legal sufficiency of a particular
impeachment theory,” id. at 50. Courts, however, regularly
apply the particularized need standard to mitigate such
concerns in the impeachment context because the district court
need only decide if the requested grand jury materials are
relevant to the impeachment investigation and authorize
disclosure of such materials without commenting on the
propriety of that investigation. See, e.g., Hastings, 833 F.2d at
1446.
In any event, the Department’s contrary interpretation of
Rule 6(e) would raise as many separation-of-powers problems
as it might solve. The Department implies its interpretation of
the Rule strengthens the House by insulating its “sole power of
impeachment” from judicial interference. But it ignores that
courts have historically provided grand jury records to the
House pursuant to Rule 6(e) and that its interpretation of the
Rule would deprive the House of its ability to access such
records in future impeachment investigations. Where the
Department is legally barred from handing over grand jury
materials without court authorization, judicial restraint does not
empower Congress; it impedes it.
IV.
The Committee has established a particularized need for
the redacted grand jury materials it seeks. The party requesting
the grand jury information must show (1) the material “is
needed to avoid a possible injustice in another judicial
16
proceeding,” (2) “the need for disclosure is greater than the
need for continued secrecy,” and (3) the “request is structured
to cover only material so needed.” Douglas Oil Co. of Cal. v.
Petrol Stops Nw., 441 U.S. 211, 222 (1979). The Supreme
Court characterizes “[t]he Douglas Oil 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.” Sells Eng’g, 463 U.S. at 445. The
Supreme Court has “repeatedly stressed that wide discretion
must be afforded to district court judges in evaluating whether
disclosure is appropriate.” United States v. John Doe, Inc. I,
481 U.S. 102, 116 (1987). The district court’s determination
“is subject to reversal only if that discretion has been abused.”
In re Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986).
The district court did not abuse its discretion. Special
Counsel Mueller prepared his Report with the expectation that
Congress would review it. See Vol. II at 1. The district court
released only those materials that the Special Counsel found
sufficiently relevant to discuss or cite in his Report. Moreover,
the Department has already released information in the Report
that was redacted to avoid harm to peripheral third parties and
to ongoing investigations, thereby reducing the need for
continued secrecy. Finally, the Committee’s particularized
need for the grand jury materials remains unchanged. The
Committee has repeatedly stated that if the grand jury materials
reveal new evidence of impeachable offenses, the Committee
may recommend new articles of impeachment. Appellee’s
Supp. Br. 17 (Dec. 23, 2019); Oral Arg. Tr. at 59–60 (Jan. 3,
2020).
A.
The district court concluded that the Committee needed
the redacted grand jury materials to “investigate fully,” to
“evaluate the bases for the conclusions reached by the Special
17
Counsel,” and to “reach a final determination” about “whether
the President committed an impeachable offense” a question
“that the Special Counsel simply left unanswered.” App. for
Mueller Report Grand Jury Materials, 2019 WL 5485221, at
*35. The district court noted several features of the
impeachment investigation that made the Committee’s need
especially compelling. First, because several individuals were
convicted of making false statements either to Congress or in
connection with the Special Counsel’s investigation, the court
found that the grand jury material at issue “may be helpful in
shedding light on inconsistencies or even falsities in the
testimony of witnesses called in the House’s impeachment
inquiry.” Id. at *34. Second, the district court found that other
sources of information — “such as the public version of the
Mueller Report, the other categories of material redacted from
the Mueller Report, congressional testimony and FBI Form 302
interview reports” — “cannot substitute for the requested grand
jury materials.” Id. at *36. Third, of striking significance, it
was undisputed that “the White House has flatly stated that the
Administration will not cooperate with congressional requests
for information.” Id. (citing Letter from Pat A. Cipollone,
White House Counsel, to Representative Nancy Pelosi,
Speaker of the House, et al. (Oct. 8, 2019)).
On appeal, the Department contends that a “generalized
need” for grand jury materials “to ‘complete the story’ or
‘investigate fully,’ or simply to double-check that witnesses are
not lying, has never been sufficient.” Appellant’s Br. 3. The
Department asserts that the district court’s analysis amounts to
no more than an observation that the grand jury materials may
be relevant to the Committee’s inquiry, id. at 15, and that the
district court should have conducted a redaction-by-redaction
review to determine if the Committee actually needed the
material, Oral Arg. Tr. at 26 (Jan. 3, 2020). Not only does this
ignore the district court’s detailed consideration of the
18
evidentiary obstacles confronting the Special Counsel’s
investigation, App. for Mueller Report Grand Jury Materials,
2019 WL 5485221, at *37, the showing of particularized need
required in the impeachment context is different. The Douglas
Oil standard is “highly flexible” and “adaptable to different
circumstances,” Sells Engineering, 463 U.S. at 445, and courts
have required a line-by-line or witness-by-witness
determination only in cases where grand jury materials are
needed in a future trial to impeach or refresh the recollection of
a specific witness. See, e.g., In re Special Grand Jury 89-2,
143 F.3d 565, 568, 571 (10th Cir. 1998); United States v.
Fischbach & Moore, Inc., 776 F.2d 839, 845–46 (9th Cir.
1985).
In the impeachment context, both this court sitting en banc
in Haldeman and the Eleventh Circuit in Hastings concluded
that when Congress seeks access to grand jury materials to
assist in an impeachment investigation, district courts hand off
all relevant materials to Congress without micromanaging the
evidence. For example, in In re 1972 Grand Jury Report, Chief
Judge Sirica ordered that the “Grand Jury Report and
Recommendation” and accompanying grand jury materials be
delivered to the Committee for use in an impeachment
investigation involving the President. 370 F. Supp. at 1230–
31. The Chief Judge reasoned that “[i]t would be difficult to
conceive of a more compelling need than that of this country
for an unswervingly fair inquiry based on all the pertinent
information.” Id. at 1230 (emphasis added). In making this
determination, Chief Judge Sirica “carefully examined the
contents of the Grand Jury Report” and stated that he was
“satisfied that there can be no question regarding their
materiality to the House Judiciary Committee’s investigation,”
without parsing through the materials to determine which
specific witnesses or lines of testimony were relevant to the
Committee’s investigation. Id. at 1221. This court, in turn,
19
expressed its “general agreement with his handling of these
matters.” Haldeman, 501 F.2d at 715. Similarly, in Hastings,
the Eleventh Circuit authorized the disclosure of all grand jury
materials to the Committee to assist in its impeachment
investigation of Judge Hastings because “without full access to
the grand jury materials, the public may not have confidence
that the Congress considered all relevant evidence.” 833 F.2d
at 1445 (emphasis added).
Applying the particularized need standard in this way in
the impeachment context avoids the potentially problematic
second-guessing of Congress’s need for evidence that is
relevant to its impeachment inquiry. The Constitution grants
to the House of Representatives the “sole Power of
Impeachment.” U.S. CONST. art. I, § 2, cl. 5. In an
impeachment, the House serves as both the grand jury and
prosecutor; it appoints managers to prosecute in the Senate the
Articles of Impeachment that were approved by the House of
Representatives. See H. Res. 798, 116th Cong. (2020)
(appointing managers for the impeachment trial of President
Donald J. Trump). The courts cannot tell the House how to
conduct its impeachment investigation or what lines of inquiry
to pursue, or how to prosecute its case before the Senate, cf.
Old Chief v. United States, 519 U.S. 172, 186 (1997), much
less dictate how the Senate conducts an impeachment trial,
Walter Nixon v. United States, 506 U.S. 224, 230–33 (1993).
B.
Here, the context makes readily apparent that the need for
disclosure is not only greater than the need for continued
secrecy but that the district court findings confirmed the
particularity of the need. The need for grand jury secrecy is
reduced after the grand jury has concluded its work, but courts
still “must consider . . . the possible effect upon the functioning
of future grand juries” such as the need to encourage “frank and
20
full testimony,” Douglas Oil, 441 U.S. at 222, and the risk that
“persons who are accused but exonerated by the grand jury”
will face “public ridicule,” id. at 219. The district court
concluded upon reviewing in detail the findings in the Mueller
Report that any remaining secrecy interests in the redacted
grand jury materials were readily outweighed by the
Committee’s compelling need for the materials in order to
determine whether, or to what extent, links existed between the
Russian government’s efforts to interfere in the 2016 United
States presidential election proceedings and individuals
associated with President Trump’s election campaign. App. for
Mueller Report Grand Jury Materials, 2019 WL 5485221, at
*37–38.
Although the need for continued secrecy remains, the
district court reasonably concluded that this need is reduced by
the Committee’s adoption of special protocols to restrict access
to the grand jury materials in order to maintain their secrecy.
Id. at *37; see Memorandum from Chairman Nadler to
Members of the Committee on the Judiciary re Procedures for
Handling Grand Jury Information (July 26, 2019). The
Department objects that the Committee has the discretion to
make the grand jury material public at any time. Appellant’s
Br. 45. But the district court, relying on Chief Judge Sirica’s
analysis, followed a tradition of satisfaction with these
protocols. App. for Mueller Report Grand Jury Materials,
2019 WL 5485221, at *37. As Chief Judge Sirica explained,
such protocols “insure against unnecessary and inappropriate
disclosure,” dismissing concerns about leaks as “speculation.”
In re 1972 Grand Jury Report, 370 F. Supp. at 1230. Here, too,
the Department offers “no basis on which to assume that the
Committee’s use of the [material] will be injudicious.” Id. In
fact, history supports the conclusion that such protocols are not
an empty gesture. As the district court noted, “Congress has
still not publicly disclosed the entirety of the Watergate grand
21
jury report that Chief Judge Sirica ordered be given to [the
Committee] forty-five years ago, in 1974.” In re App. of
Comm. on Judiciary U.S. House of Representatives for an
Order Authorizing Release of Certain Grand Jury Materials,
No. 19-48, 2019 WL 5608827, at *3 (D.D.C. Oct. 29, 2019)
(denying stay pending appeal).
Additionally, the risk of “public ridicule” decreases where,
as here, there is already “widespread public knowledge about
the details of the Special Counsel’s investigation, which
paralleled that of the grand jury’s, and about the charging and
declination decisions outlined in the Mueller Report.” App. for
Mueller Report Grand Jury Materials, 2019 WL 5485221, at
*37. Cf. In re Grand Jury Subpoena, Judith Miller, 438 F.3d
1138, 1140 (D.C. Cir. 2006); In re North, 16 F.3d 1234, 1245
(D.C. Cir. 1994). The Report was made available to the public
and the Special Counsel testified about it in congressional
hearings. See, e.g., Former Special Counsel Robert S. Mueller,
III on the Investigation into Russian Interference in the 2016
Presidential Election: Hearing Before the H. Perm. Select
Comm. on Intelligence, 116th Cong. 49 (July 24, 2019).
Moreover, the Department recently introduced the grand jury
testimony of senior Trump advisor, Steven Bannon, at Roger
Stone’s criminal trial, United States v. Stone, No. 19-cr-00018
(D.D.C. Nov. 8, 2019), publicly disclosing grand jury materials
concerning a player who was interviewed in connection with
the Special Counsel’s investigation but not indicted.
It is true that “courts have been reluctant to lift
unnecessarily the veil of secrecy.” Douglas Oil, 441 U.S. at
219. In the impeachment context, courts need to be especially
careful in balancing the House’s needs against various ongoing
secrecy interests inasmuch as courts lack authority to restrict
the House’s use of the materials or withdraw them if
improvidently issued or disseminated. In Senate Permanent
22
Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C.
Cir. 2017), this court suggested that the Speech or Debate
Clause bars “ordering a congressional committee to return,
destroy, or refrain from publishing” information already in its
possession. Id. at 1086. But a compelling need for the material
and the public interest may necessitate disclosure. See Illinois
v. Abbott & Assocs., Inc., 460 U.S. 557, 567 n.15 (1983).
Special Counsel Mueller spoke directly to Congress in his
Report, see Vol. II at 1, and stopped short of making any
“ultimate conclusions about the President’s conduct,” id. at 8.
The Department has failed to show in these circumstances that
the district court abused its discretion in agreeing that the
Committee had a compelling need to be able to reach a final
determination about the President’s conduct described in the
Mueller Report. Along with the “public’s interest in a diligent
and thorough [impeachment] investigation,” these
considerations tip the balance toward disclosure. App. for
Mueller Report Grand Jury Materials, 2019 WL 5485221, at
*38; see In re 1972 Grand Jury Report, 370 F. Supp. at 1227.
“Public confidence in a procedure as political and public as
impeachment is an important consideration justifying
disclosure.” Hastings, 833 F.2d at 1445.
C.
Furthermore, the Committee’s request was tailored to its
need. Douglas Oil, 441 U.S. at 222. The Committee requested
three categories of grand jury materials: (1) all portions of the
Mueller Report that were redacted pursuant to Rule 6(e); (2)
any portions of grand jury transcripts or exhibits referenced in
those redactions; and (3) any underlying grand jury testimony
and exhibits that relate directly to certain individuals and
events described in the Mueller Report. Additionally, the
Committee proposed a staged disclosure, starting with the first
two categories of materials. App. for Mueller Report Grand
Jury Materials, 2019 WL 5485221, at *33. The district court
23
reasonably granted this request given the Committee’s
compelling need to be able to make a final determination about
the President’s conduct described in the Mueller Report, id. at
*33, 35, 38, and stated that the Committee could file further
requests articulating its need for the grand jury materials in the
third category, id. at *33.
The Department’s objections to this limited and structured
disclosure are unpersuasive. First, the Department maintains
that the disclosure includes a redaction in Volume II that the
Committee conceded it did not need. Appellant’s Br. 38;
District Ct. Hearing Tr. at 37–38 (Oct. 8, 2019). The
Committee made this concession without knowing what was
underlying the redactions. The district court later reviewed in
camera the grand jury material in Volume II, before
authorizing the release of all grand jury material redacted from
and referenced in both volumes of the Mueller Report. As to
the Committee’s need for the material, the court found that
“[t]he grand jury material relied on in Volume II is
indispensable to interpreting the Special Counsel’s evaluation
of this evidence and to assessing the implications of any
‘difficult issues’ for [the Committee’s] inquiry into obstruction
of justice.” App. for Mueller Report Grand Jury Materials,
2019 WL 5485221, at *35. Given the nature of the two
volumes, the Department offered no persuasive reasons to
conclude that the Committee’s need for the redacted materials
in Volume I was less compelling than the need demonstrated
for Volume II. The court’s determination, of course, is
properly “infused with substantial discretion.” Douglas Oil,
441 U.S. at 223.
Second, the Department maintains that the district court
could not have evaluated whether the requested material was
limited to material relevant to the Committee’s need without
conducting an in camera review of Volume I. Appellant’s Br.
24
38. The district court reviewed the grand jury material redacted
from Volume II of the Mueller Report but not from Volume I.
As a result, the Department notes that the district court only
examined five of the over 240 redactions in the Mueller Report.
Reply Br. 23–24. Here, it was unnecessary for the district court
to conduct an in camera review of the Volume I redactions.
The Committee’s request for the grand jury materials in the
Mueller Report is directly linked to its need to evaluate the
conclusions reached and not reached by the Special Counsel.
In the Special Counsel Mueller’s own estimation, his Report
“contains . . . that information necessary to account for the
Special Counsel’s prosecution and declination decisions and to
describe the investigation’s main factual results.” Vol. I at 13.
The Committee states that it needs the unredacted material to
review these findings and make its own independent
determination about the President’s conduct. The district court
had no reason to question the Committee’s representation
because the Mueller Report itself made clear why the grand
jury materials in Volume I were necessary for the Committee
to review and evaluate in exercise of its constitutional duty.
Courts must take care not to second-guess the manner in which
the House plans to proceed with its impeachment investigation
or interfere with the House’s sole power of impeachment. Cf.
Walter Nixon, 506 U.S. at 230–31.
Of course, courts must not simply rubber stamp
congressional requests for grand jury materials. In cases where
the connection between the grand jury materials and the
Committee’s impeachment investigation is not obvious, further
inquiry by the district court may be needed. For instance,
Committee counsel could be permitted to review the
unredacted grand jury materials in camera to enable a more
detailed explanation of the relevance of particular witnesses,
portions of transcripts, or records. See Oral Arg. Tr. 62–64
(Nov. 18, 2019). Or the district court, in the exercise of its
25
discretion, might decide it should review the unredacted
materials in camera, as occurred here at the Department’s
suggestion, with respect to Volume II of the Mueller Report.
See Redacted Decl. of Bradley Weinsheimer ¶¶ 5–10 (Sept. 13,
2019).
But here, where the Special Counsel stopped short of
making any “ultimate conclusions about the President’s
conduct,” Mueller Report, Vol. II at 8, in part to avoid
preempting the House’s sole power of impeachment, see id. at
1, the Committee has established that it cannot “fairly and
diligently” make a final determination about the conduct
described in both volumes of the Mueller Report “without the
grand jury material referenced” therein. App. for Mueller
Report Grand Jury Materials, 2019 WL 5485221, at *35. In
affirming the disclosure of “the entire grand jury record” to the
Committee, the Eleventh Circuit similarly observed: “The
recommendation of the judicial branch concerning
impeachment of Judge Hastings was based on access to the
whole grand jury record, and that same access should not be
denied Congress.” Hastings, 833 F.2d at 1445. Given the
Committee’s tailored request in the instant case, this court has
no occasion to decide whether granting a request for “all” of
the redacted grand jury materials would have been an abuse of
discretion; that question remains for another day. Here, for
reasons explained, the district court did not abuse its discretion
by ordering the disclosure of all portions of the Mueller Report
redacted pursuant to Rule 6(e) and any grand jury transcripts or
exhibits referenced in those redactions without scrutinizing the
Committee’s need as to each redaction.
Accordingly, because a Senate impeachment trial qualifies
as a “judicial proceeding” pursuant to Rule 6(e) and the
Committee has established a particularized need for the
requested portions of grand jury materials, the district court’s
26
Order is affirmed. The distinction that our dissenting colleague
reads into the district court’s Order between authorizing and
ordering release is not raised by either party and rests on a
flawed premise. See Dissenting Op. at 1–3 (Rao, J.). Our
colleague assumes that the House of Representatives is seeking
compulsory judicial action against the Executive Branch.
Because the Department of Justice is simply the custodian of
the grand jury materials at issue however, the instant case is
unlike inter-branch disputes where Congress issued subpoenas
and directed Executive Branch officials to testify and produce
their relevant documents. See generally Comm. on the
Judiciary v. McGahn, 2019 WL 6312011 (D.D.C. Nov. 25,
2019); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53(D.D.C. 2008).
GRIFFITH, Circuit Judge, concurring: I join the opinion for
the court, but I write separately to address the dissent’s
argument that the district court lacked jurisdiction to compel
disclosure of grand jury materials under Committee on the
Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Feb. 28, 2020).
Unlike McGahn, this case does not involve a suit between the
political branches over executive-branch documents or
testimony. Instead, it involves an application for access to
records of the grand jury, whose disclosure the district court
has traditionally controlled.
As the dissent acknowledges, grand jury records do not
belong to the Executive Branch. See Dissent at 28; see also
Majority at 9-10; In re Grand Jury Investigation of Cuisinarts,
Inc., 665 F.2d 24, 31 & n.10 (2d Cir. 1981). Regardless of
whether grand jury materials are “judicial records,” see Dissent
at 27-28, they do not become executive records simply because
the Department of Justice stores them in file cabinets after the
grand jury completes its investigation. The Department holds
these records subject to the ongoing supervision of the district
court. Accordingly, Rule 6(e) bars the Department from
disclosing these records to Congress without court approval.
See FED. R. CRIM. P. 6(e)(2)(B)(vi); see also J.A. 448 (letter
from the Attorney General stating that he “d[id] not believe that
[he] ha[d] discretion to disclose grand-jury information to
Congress”). Federal courts, including courts in our own circuit,
have approved the disclosure of grand jury materials to the
House of Representatives in seven prior impeachment
proceedings. See Majority at 13-14. Congressional applications
for access to grand jury materials have thus traditionally been
thought capable of (and indeed to require) judicial resolution.
Cf. Raines v. Byrd, 521 U.S. 811, 819 (1997).
The dissent insists that “possession” is the “dispositive
factor” in our jurisdictional analysis: When the court holds the
grand jury materials, it may hand them over; when it does not,
it may not compel the Department to do so. Dissent at 20-23.
2
This argument elevates form over substance. I do not take the
dissent to dispute that the district court could have ordered the
Department to deliver the grand jury materials for in camera
review. Indeed, to assess particularized need, “[d]istrict courts
are often required to conduct an in camera review of grand jury
material requested under [Rule 6(e)’s judicial-proceeding
exception].” In re Sealed Case No. 98-3077, 151 F.3d 1059,
1074 (D.C. Cir. 1998). Had the court done so, it would have
taken possession of the requested materials and could have
provided them directly to the Committee, instead of ordering
the Department to hand them over. See Haldeman v. Sirica, 501
F.2d 714, 715 (D.C. Cir. 1974) (en banc) (approving such a
direct transfer); Dissent at 20-23 (recognizing that courts have
provided grand jury materials to Congress when they possessed
them). If the district court may do that, why can’t it cut itself
out as the intermediary?
I understand the dissent’s concern that ordering the
Executive Branch to provide grand jury records to Congress
could make us a tool of the House in the exercise of its “sole
power of impeachment.” Dissent at 34-39. The Judiciary’s
proper place in an impeachment fight is typically on the
sidelines. See Nixon v. United States, 506 U.S. 224, 228-36
(1993). But, as gatekeepers of grand jury information, we
cannot sit this one out. The House isn’t seeking our help in
eliciting executive-branch testimony or documents. Instead,
it’s seeking access to grand jury records whose disclosure the
district court, by both tradition and law, controls.
In an effort to bring this dispute under McGahn, the dissent
creates a novel distinction between authorization and
compulsion on which its analysis turns. But that distinction is
difficult to square with our precedent and the district court’s
longstanding supervisory power over the grand jury. Our
circuit has never distinguished between authorization and
3
compulsion under Rule 6(e). To the contrary, we’ve said that
“[w]hen the court authorizes . . . disclosure [of grand jury
records], it does so by ordering an attorney for the government
who holds the records to disclose the materials.” McKeever v.
Barr, 920 F.3d 842, 848 (D.C. Cir. 2019) (emphases added)
(internal quotation marks omitted); see also In re Grand Jury,
490 F.3d 978, 986 (D.C. Cir. 2007) (“The federal courts have
the authority under Rule 6(e)(3)(E)(i) to order disclosure to
grand jury witnesses of their own transcripts.” (emphasis
added)). The text of Rule 6(e) also suggests that courts may
order the Department to transfer certain grand jury materials to
another entity. Rule 6(e)(1) provides that “[u]nless the court
orders otherwise, an attorney for the government will retain
control of . . . any transcript [of the grand jury].” As the
Department explained at oral argument, “it just doesn’t seem
like a plausible reading of Rule 6(e) that the District Court
could authorize [disclosure] but that the Department of Justice
would then say well, we don’t want to turn over [the]
information.” Oral Arg. Tr. 7:20-23.
All that aside, the dissent’s distinction between
authorization and compulsion strikes me as untenable on its
own terms. In the dissent’s view, although “[a]uthorization of
disclosure is part of the district court’s supervisory power” over
the grand jury, compulsion is not. Dissent at 1-2. The dissent
explains this distinction by arguing that the court’s
“supervisory power is strictly limited to actions taken . . . in aid
of the grand jury” and that compelling disclosure aids third
parties rather than the grand jury. Id. at 2. But merely
authorizing disclosure also aids third parties rather than the
grand jury. The dissent therefore cannot explain why the
district court has power to permit disclosure in the first place.
Taken to its logical conclusion, the dissent’s theory would
seem to require outright dismissal of this case—a result that the
4
dissent agrees is contrary to history and precedent. See id. at
3-5; see also Majority at 10-14.
More broadly, I’m skeptical of the claim that the district
court’s supervisory authority never extends to aiding third
parties. As the dissent concedes, the district court may issue
compulsory process in the form of contempt orders and grand
jury subpoenas. Dissent at 16-17. But when the court holds
someone in contempt for breaching the grand jury’s secrecy, it
often aids not only the grand jury but also a third party whose
private papers or statements have been unveiled. Moreover, the
district court’s local rules allow the court “on its own motion”
to “ma[ke] public” grand jury materials “upon a finding that
continued secrecy is not necessary to prevent disclosure of
matters occurring before the grand jury.” D.D.C. LOCAL CRIM.
R. 6.1; see also In re Motions of Dow Jones & Co., 142 F.3d
496, 504 (D.C. Cir. 1998). Under this rule, the district court
could presumably compel the Department to make such
materials available to the public. All this suggests that
compulsory process—even for the benefit of third parties—
falls within the district court’s traditional supervisory power.
Finally, although I agree with the dissent that we have an
independent obligation to assure ourselves of our jurisdiction,
we need not chase jurisdictional phantoms. The relationship
between the grand jury and Article III courts is, to put it mildly,
“very under-theorized,” Oral Arg. Tr. 5:21 (counsel for the
Department); see also id. 62:24-63:17 (counsel for the
Committee), and neither party has advanced the dissent’s novel
theory of that relationship. Given the district court’s traditional
supervisory power over the grand jury and the fact that grand
jury records do not belong to the Executive Branch, I am
satisfied that the court had jurisdiction to compel disclosure.
RAO, Circuit Judge, dissenting: The district court in this case
took two distinct actions: first, it authorized disclosure of grand
jury materials to the House Committee on the Judiciary, and
second, it ordered the Department of Justice to release those
materials to the Committee. The majority affirms both orders
and treats them essentially as a single action pursuant to the
district court’s supervisory power over grand juries, and
therefore outside the boundaries of Article III. Yet there are
important distinctions between these two actions. While I agree
that the court may authorize release under Federal Rule of
Criminal Procedure 6(e), a judicial order compelling action by
the executive branch has always been treated as an exercise of
the Article III power.
The majority dismisses the Article III inquiry because
grand jury records are different and outside the traditional
constitutional boundaries. It is true that the grand jury exists
separate from the three departments of the federal government
and that in aiding the grand jury the courts may exercise limited
non-Article III powers. Yet the ancient institution of the grand
jury does not eviscerate the constitutional limits between the
coordinate branches of the federal government. While the
courts and the executive branch each have a distinct
relationship to the grand jury and Rule 6(e) gives both branches
shared responsibility for maintaining grand jury secrecy, the
grand jury context does not change the powers of the judiciary
in relation to the executive branch or to Congress. Thus, a court
may compel action by the executive branch to release grand
jury records only when a proper litigant meets the requirements
of Article III.
As an initial matter, I agree with the majority that at the
time of its order, the district court did not abuse its discretion
in authorizing disclosure of the grand jury materials. An
impeachment investigation is “preliminar[y] to or in
connection with a judicial proceeding.” FED. R. CRIM. P.
6(e)(3)(E)(i). Authorization of disclosure is part of the district
2
court’s supervisory power and does not require Article III
jurisdiction. Yet in the months following the Committee’s
initial petition, the House passed two articles of impeachment
and the Senate conducted an impeachment trial and voted to
acquit President Donald J. Trump. In light of these
circumstances, I would remand to the district court to consider
in the first instance whether the Committee can continue to
demonstrate that its inquiry is preliminary to an impeachment
proceeding and that it has a “particularized need” for disclosure
of the grand jury records.
Separate from authorization, ordering DOJ to turn over the
grand jury documents is an exercise of the Article III judicial
power for which the Committee must have standing. The
majority and the concurrence fail to identify a single case in
which a court has compelled disclosure of grand jury materials
to a party without standing. Waving the banner of grand jury
tradition is not enough to overcome the fundamental principle
of separation of powers that a court may order action by the
executive branch only at the behest of a party with standing.
The constitutional requirements of Article III standing do not
disappear when a party seeks grand jury materials. The district
court’s non-Article III supervisory power is strictly limited to
actions taken by courts in aid of the grand jury. Nothing in Rule
6(e) nor the district court’s supervisory power changes the
constitutional limits on the court’s authority with respect to
third parties who are not part of the grand jury process.
Therefore, the Committee must have standing to obtain a
judicial order compelling the Department to produce grand jury
materials.
The Committee, however, lacks standing in this case.
Under Article III, as confirmed by Raines v. Byrd, 521 U.S. 811(1997), and our recent decision in Committee on the Judiciary
of the U.S. House of Representatives v. McGahn, 2020 WL
3
1125837 (D.C. Cir. Feb. 28, 2020), the Committee has no
standing to enforce directly its subpoena to DOJ for grand jury
materials.1 The reasoning of McGahn means that the
Committee also lacks standing to seek a compulsory order in a
Rule 6(e) proceeding—such relief presents an interbranch
dispute not traditionally cognizable by the judiciary. Although
McGahn leaves open the possibility that a statute may create
legislative standing, Rule 6(e) does not do so here. The Rule
merely permits courts to authorize disclosure. It vests no right
in third parties to obtain such authorization, much less a right
to compulsory process to receive grand jury materials. Rule
6(e) thus provides no basis for the informational injury claimed
by the Committee and cannot provide the prerequisites to the
exercise of the Article III judicial power. Because the
Committee lacks standing, I would vacate the district court’s
order compelling DOJ to disclose the grand jury materials. I
respectfully dissent.
I.
The primary question addressed by the majority concerns
whether the district court could authorize disclosure to the
Committee. On this point, I agree with the majority that the
Committee’s petition could fit within Rule 6(e)’s “judicial
proceeding” exception because it sought the grand jury
materials preliminary to a possible Senate impeachment trial,
1
The House Judiciary Committee’s subpoena to Attorney General
William P. Barr, dated April 18, 2019, seeks “[t]he complete and
unredacted version” of Special Counsel Robert S. Mueller III’s
Report On The Investigation Into Russian Interference In The 2016
Presidential Election (“Mueller Report”), “[a]ll documents
referenced in the Report,” and “[a]ll documents obtained and
investigative materials created by the Special Counsel’s Office.” See
J.A. 190–97.
4
which has always been understood as an exercise of judicial
power. The Constitution vests the Senate with the “sole Power
to try all Impeachments.” U.S. CONST. art. I, § 3, cl. 6. The
Framers understood this clause to vest in the Senate a “distinct”
non-legislative power to act in a “judicial character as a court
for the trial of impeachments.” The Federalist No. 65, at 337
(Alexander Hamilton) (George W. Carey & James McClellan
eds., 2001); see also Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410
(1792) (“[N]o judicial power of any kind appears to be vested
[in Congress], but the important one relative to
impeachments.”); Trump v. Mazars USA, LLP, 940 F.3d 710,
755 (D.C. Cir. 2019) (Rao, J., dissenting) (“[T]he Constitution
confers upon the House and Senate limited judicial powers
over impeachable officials.”), cert. granted, 140 S. Ct. 660(2019).
The Supreme Court has consistently recognized the Senate
as a court of impeachment parallel to the federal courts. For
example, in Mississippi v. Johnson, the Court noted that it was
without authority to restrain the Senate in the conduct of an
impeachment trial because the Senate was sitting “as a court of
impeachment” and “this court [cannot] arrest proceedings in
that court.” 71 U.S. 475, 500–01 (1866); see also Kilbourn v.
Thompson, 103 U.S. 168, 191 (1880) (“The Senate also
exercises the judicial power of trying impeachments.”).
Similarly, we have stated that doctrines ordering the relations
between “state or coordinate federal court[s]” apply to the
Senate when it “sits as the constitutionally-designated court of
impeachment.” Hastings v. United States Senate, 887 F.2d 332,
1989 WL 122685, at *1 (D.C. Cir. Oct. 18, 1989)
(unpublished). The text of the Impeachment Trial Clause and
its consistent interpretation confirm that when sitting for an
impeachment trial, the Senate is a court and the trial a “judicial
proceeding.”
5
At the time of its decision, the district court did not abuse
its discretion in concluding that the Committee had shown a
“particularized need” for the grand jury materials. As the
majority notes, the particularized need inquiry is a “highly
flexible one” that is “adaptable to different circumstances.”
Maj. Op. 16 (quoting United States v. Sells Eng’g, Inc., 463
U.S. 418, 445 (1983)). Impeachment is one such circumstance
to which the standards for particularized need must be uniquely
adapted. Cf. In re Request for Access to Grand Jury Materials
Grand Jury No. 81-1, Miami, 833 F.2d 1438, 1444 (11th Cir.
1987) (“Hastings”) (“[A]pplying the requirements of rule 6(e)
in this context, we hold, taking into account the doctrine of
separation of powers, that a merely generalized assertion of
secrecy in grand jury materials must yield to a demonstrated,
specific need for evidence in a pending impeachment
investigation.”).
Although I agree that the authorization of disclosure was
within the district court’s discretion at the time it issued its
decision, the district court’s analysis was highly fact-bound.
Rule 6(e)’s “preliminarily to or in connection with a judicial
proceeding” exception to grand jury secrecy required the
district court to find that the “primary purpose” of the
Committee’s inquiry was impeachment. See United States v.
Baggot, 463 U.S. 476, 480 (1983). In analyzing that issue, the
district court considered various actions and statements by
legislators and legislative committees and concluded that the
purpose of the Committee’s investigation and its request for the
grand jury materials was to “determine whether to recommend
articles of impeachment.” See In re Application of Comm. on
Judiciary, U.S. House of Representatives, for an Order
Authorizing Release of Certain Grand Jury Materials, 414 F.
Supp. 3d 129, 149 (D.D.C. 2019).
6
Much has happened since the district court authorized
disclosure in October. The House Judiciary Committee
conducted an impeachment investigation, subpoenaed
materials, and heard from witnesses. The House voted in favor
of two articles of impeachment against President Trump. The
Senate then conducted an impeachment trial in which it
considered the House’s evidence, determined that no further
evidence was needed, and entered a judgment of acquittal.
In light of these developments, remand is necessary for the
district court to address whether authorization is still
warranted. A similar analysis of the Committee’s application
today requires ascertaining whether such investigations are
ongoing and, if so, whether their “primary purpose” is to obtain
the grand jury materials for impeachment. The Committee’s
request must fit within one of the Rule 6(e) exceptions and the
only exception claimed by the Committee is that impeachment
is a “judicial proceeding.” Legislative oversight, for example,
would not fit within this exception. If impeachment is no longer
the primary purpose of the Committee’s application, the court
could not authorize disclosure because the grand jury records
would not be sought “preliminarily to or in connection with”
an impeachment trial or inquiry. FED. R. CRIM. P. 6(e)(3)(E)(i).
Similarly, remand is necessary for the district court to
consider whether the Committee continues to have a
particularized need for the requested grand jury materials, or
whether the intervening developments have abrogated or
lessened the Committee’s need for these records. Once again,
this requires a fact-intensive inquiry. In re Sealed Case, 801
F.2d 1379, 1381 (D.C. Cir. 1986) (“[A] district court
[considering a Rule 6(e) application] must ‘weigh carefully the
competing interests in light of the relevant circumstances and
standards.’” (quoting Sells Eng’g, 463 U.S. at 443)). In order
to assess the Committee’s ongoing need for these materials,
7
additional factual information is needed regarding the status of
the Committee’s investigations. The majority relies on
assertions made in briefs filed by the Committee before the
impeachment trial. Maj. Op. 16–18. This generalized interest
standing alone does not speak to the fact-bound inquiry
regarding the ongoing purpose and need for the materials.
Remand is thus necessary for the district court to weigh the
public interest in disclosure against the need to preserve grand
jury secrecy in these changed circumstances. See In re Sealed
Case, 801 F.2d at 1381. Because authorization of disclosure
rests with the sound discretion of the district court, we should
not exercise such discretion in the first instance.
* * *
A reasonable observer might wonder why we are deciding
this case at this time. After all, the Committee sought these
materials preliminary to an impeachment proceeding and the
Senate impeachment trial has concluded. Why is this
controversy not moot? The majority simply turns a blind eye to
these very public events and the parties have not submitted any
additional briefs; however, a few observations are worth
noting. Mootness is a constitutional doctrine following from
the Article III requirement that courts decide only live cases
and controversies. See Conservation Force, Inc. v. Jewell, 733
F.3d 1200, 1204 (D.C. Cir. 2013). Mootness, however, does
not impact the district court’s authorization of disclosure
because authorization is a discretionary action under Rule
6(e)—it is part of the non-Article III supervisory power of the
court over the grand jury. With that said, while mootness per
se does not apply, the changed circumstances require remand
for the reasons already stated. As to the order compelling DOJ
to release the records, Article III limitations apply, as explained
below. Yet because I conclude that the Committee lacks
standing for compulsory process, mootness is irrelevant: The
8
district court lacked jurisdiction at the outset to compel DOJ to
release the grand jury materials.
II.
The constitutional problem presented by this case pertains
not to authorization of disclosure, but to the separate question
of whether the district court had jurisdiction to compel DOJ to
release the grand jury materials to the Committee. In the
months leading up to the House’s formal initiation of an
impeachment inquiry, the Judiciary Committee issued a
subpoena to the Department of Justice for the grand jury
materials relating to Special Counsel Robert S. Mueller III’s
investigation. U.S. Dep’t of Justice, Order No. 3915-2017,
Appointment of Special Counsel to Investigate Russian
Interference with the 2016 Presidential Election and Related
Matters (May 17, 2017); see also J.A. 190–97 (House Judiciary
Committee Subpoena to Attorney General William P. Barr
(Apr. 18, 2019)). When the Department refused to comply and
cited Rule 6(e) as an impediment to any release, the Committee
sought authorization from the district court for the release of
the materials. Notably, in its petition to the district court, the
Committee sought only authorization of disclosure; it did not
ask the court to compel DOJ to release the documents. J.A.
139–40. The district court authorized disclosure, but then went
beyond the relief requested by the Committee and ordered the
Department to turn over the materials. The Committee seeks to
defend that order on appeal.
The Committee’s Rule 6(e) application thus replaced
legislative process (the Committee’s subpoena) with judicial
process (the district court’s order compelling the Department
to turn over the grand jury materials to the House). We have
already held that the Committee lacks standing to use the courts
to enforce its subpoenas against the executive branch. See
9
McGahn, 2020 WL 1125837, at *16. Both the Department and
the Committee maintain, however, that Rule 6(e)
fundamentally changes the analysis in this case. They assert
that the district court’s order was an exercise of the supervisory
power over the grand jury, such that the traditional Article III
requirements of justiciability do not apply. That position,
however, reads too much into Rule 6(e) and the district court’s
traditional supervisory authority.
The crux of my analysis turns on fundamental principles
of separation of powers. First, the mere fact that this case
involves a request for grand jury materials does not alter the
basic constitutional requirement that a court order directing the
executive branch to produce documents to a third party is an
exercise of the Article III power. Here, DOJ has possession of
the grand jury records under the terms of Rule 6(e)(1).2 If DOJ
declines to disclose the documents, a court may not grant a
judicial order to disclose unless the Committee has standing.
Second, nothing in Rule 6(e) changes this basic requirement
and permits the district court to order disclosure of grand jury
materials to a third party that fails to meet the requirements of
standing. Finally, although district courts exercise some
supervisory authority to aid the grand jury with its core
functions, such authority traditionally has not extended to
2
Both the Committee and DOJ characterize the requested documents
as grand jury materials or papers. See, e.g., DOJ Br. 1; Comm. Br. 1.
It might fairly be questioned, however, whether the Mueller Report
is in fact a grand jury document, as it was prepared by Robert Mueller
in his role as the Special Counsel, serving within the Department of
Justice. Thus, the Report might be considered executive branch
papers, to which additional protections might attach. DOJ has not
raised this argument, however, so I consider all the papers as being
encompassed within the umbrella request for grand jury materials.
10
ordering the executive branch to release grand jury materials
to third parties in general, nor to Congress in particular.
The majority’s entire jurisdictional argument rests on the
fact that the question “[was] not raised by either party.” Maj.
Op. 26; see also Concurring Op. 4 (“[N]either party has
advanced the dissent’s novel theory of that relationship.”). Yet
DOJ in fact distinguishes between authorizing and ordering
disclosure when it asserts that ordering disclosure is an exercise
of Article III power, but authorization of disclosure is not. See
DOJ Supp. Br. 3–6. In any event, we have an independent
obligation to ensure jurisdiction before exercising the judicial
power. Here, the district court’s order to DOJ for disclosure of
the grand jury materials required an exercise of Article III
power, because nothing in the grand jury context alters the
court’s power in relation to the executive branch. Suspending
the standing requirements of Article III in this context would
constitute an exception to justiciability not supported by the
Constitution, Rule 6(e), or the general supervisory power over
grand juries.
A.
The Committee and the Department argue that the district
court’s order does not implicate Article III because it was
entered pursuant to the court’s supervisory power over grand
juries. It is true as a general matter that the supervisory power
does not implicate “the essential attributes of the judicial
power.” United States v. Seals, 130 F.3d 451, 457 (D.C. Cir.
1997) (citation and quotation marks omitted). But the
supervisory power “is a circumscribed one,” id., that cannot be
extended by federal courts in a manner that transgresses
constitutional or statutory limits, see Bank of Nova Scotia v.
United States, 487 U.S. 250, 254–55 (1988) (“[E]ven a sensible
and efficient use of the supervisory power … is invalid if it
11
conflicts with constitutional or statutory provisions.”
(quotation marks omitted)). In United States v. Williams, the
Court distinguished the limited supervisory power over the
grand jury from the Article III power, and held that district
courts cannot invoke the supervisory authority to take major
actions “on their own initiative,” or to “alter[] the traditional
relationships between the prosecutor, the constituting court,
and the grand jury itself.” 504 U.S. 36, 50 (1992).
The district court’s supervisory power cannot override
constitutional requirements with respect to parties outside the
grand jury process.3 A judicial order compelling a party to take
an action, be it a mandatory injunction, writ of mandamus, or
other similar form of compulsory relief has always been
understood as an exercise of the Article III judicial power. See,
e.g., Georgia v. Stanton, 73 U.S. 50, 75–76 (1867) (“[I]n order
to entitle the party to the [injunctive] remedy, a case must be
presented appropriate for the exercise of judicial power.”). A
court may therefore issue compulsory orders only at the behest
of a party with Article III standing. See Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009) (“To seek injunctive
relief, a plaintiff must show that he is under threat of suffering
‘injury in fact’ that is concrete and particularized.”).
The judicial power is particularly implicated when a court
issues a compulsory order to the executive branch. See Kendall
v. United States ex rel. Stokes, 37 U.S. 524, 618 (1838) (“[T]he
3
As discussed in greater depth below, the courts have a limited
ability to issue compulsory process to aid and protect grand jury
investigations as part of their traditional supervisory capacity. This
limited non-Article III power has never extended to issuing
compulsory orders for the benefit of third parties, such as the
Committee, who are external to the grand jury process. See infra 13–
19.
12
authority to issue the writ of mandamus to an officer of the
United States, commanding him to perform a specific act,
required by a law of the United States, is within the scope of
the judicial powers of the United States.”). A court may direct
the executive branch only when exercising its Article III
powers. As the Court held in Schlesinger v. Reservists
Committee to Stop the War, a plaintiff must present more than
“generalized grievances” to “seek to have the Judicial Branch
compel the Executive Branch to act in conformity” with
constitutional provisions. 418 U.S. 208, 217 (1974). The Court
emphasized the interrelation of standing and separation of
powers and explained that ruling on constitutional issues “in
the abstract” would “open the Judiciary to an arguable charge
of providing ‘government by injunction.’” Id. at 222.
The courts may interfere with the actions of a co-equal
branch only when deciding a justiciable case or controversy.
Consistent with these basic principles, during the course of
these impeachment investigations, House Committees have not
disputed that standing is required to enforce legislative
subpoenas directed to the executive branch. Indeed, standing
has been the key issue in recent congressional attempts to seek
judicial enforcement of congressional subpoenas.4
B.
Despite these fundamental constitutional requirements, the
Committee maintains it is “counterintuitive” to consider the
requirements of Article III in the context of an application for
grand jury materials because the district court may authorize
4
See McGahn, 2020 WL 1125837; Blumenthal v. Trump, 949 F.3d
14 (D.C. Cir. 2020); Maloney v. Murphy, No. 18-5305 (D.C. Cir.
filed Aug. 14, 2019); U.S. House of Reps. v. Mnuchin, et. al., No. 19-
5176 (D.C. Cir. filed June 14, 2019).
13
disclosure under Rule 6(e) and the court’s supervisory power
over the grand jury exists separate and apart from Article III.
Comm. Supp. Br. 8–9. Intuitions aside, nothing in the text or
structure of Rule 6(e) permits district courts to order disclosure
of grand jury materials when a party does not otherwise have
standing for such relief. Nor does the district court’s residual
supervisory authority extend to issuing compulsory process to
the executive branch on behalf of third parties, rather than on
behalf of the grand jury. While courts exercise some limited
non-Article III powers when supervising the grand jury, the
grand jury context does not allow the courts to suspend Article
III when compelling action by the executive branch.
1.
Rule 6(e) does not alter the separation of powers by
permitting a court to order disclosure by the executive branch
absent standing by a third party. The Federal Rules of Criminal
Procedure have the force and effect of law, and as the Court
has explained, we interpret Rule 6(e) the same way we would
a statute: by looking first to “the Rule’s plain language.” United
States v. John Doe, Inc. I, 481 U.S. 102, 109 (1987); see also
United States v. Petri, 731 F.3d 833, 839 (9th Cir. 2013). As in
all cases of statutory interpretation, we must “accept [Rule
6(e)] as meaning what it says.” John Doe, Inc., 481 U.S. at 109(quotation marks omitted). Under the plain text of Rule 6(e), a
supervising court “may authorize disclosure” of grand jury
materials under limited circumstances. FED. R. CRIM. P.
6(e)(3)(E).
Rule 6(e) codifies and reinforces the requirements of grand
jury secrecy, subject only to certain enumerated exceptions.
We have recently explained that the list of exceptions is
exclusive and that the district court has no “inherent authority”
to order disclosure outside of the circumstances provided for in
14
the Rule. See McKeever v. Barr, 920 F.3d 842, 846 (D.C. Cir.
2019), cert. denied, No. 19-307, 2020 WL 283746 (Jan. 21,
2020). Very few third parties will fit within these
circumscribed exemptions, which do not include, for example,
any provisions for Congress, members of the public, historians,
or the media. As we have explained, “[t]he rule makes quite
clear that disclosure of matters occurring before the grand jury
is the exception and not the rule.” Fund for Constitutional
Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 868
(D.C. Cir. 1981); see also United States v. Rutherford, 509 F.3d
791, 795 (6th Cir. 2007) (explaining that Rule 6(e)(2)(B) is a
powerful “prohibitory rule that prevents the government from
disclosing grand jury matters except in limited
circumstances”). The Supreme Court has explained the Rule
“ensure[s] the integrity of the grand jury’s functions” by
“placing strict controls on disclosure.” Williams, 504 U.S. at 46
& n.6. The text of the Rule’s “judicial proceeding” exception,
which specifies a precise “kind of need that must be shown” to
justify disclosure, “reflects a judgment that not every beneficial
purpose, or even every valid governmental purpose, is an
appropriate reason for breaching grand jury secrecy.” Baggot,
463 U.S. at 480.
The text and structure of Rule 6(e) demonstrate that it does
not create any distinct authority for compulsory process against
the executive branch. The fact that the court “may authorize
disclosure” suggests that the court cannot release the materials
itself. It may only authorize others to do so, presumably the
government attorneys who by default “retain control” of the
grand jury materials. FED. R. CRIM. P. 6(e)(1). The plain
meaning of “authorize” is to “give official permission for” or
to “approve” or “sanction,” not to compel or require. Authorize,
Oxford English Dictionary (3d ed. 2014); see also Authorize,
Webster’s New International Dictionary of the English
Language (2d ed. 1941) (“To give authoritative permission to
15
or for; to empower; warrant.”). Notably, the Rule does not
confer any right to disclosure, but rather leaves disclosure to
the discretion of the district court. See infra 31–34. Thus, under
Rule 6(e), authorizing disclosure does not include compulsion,
but rather refers to lifting grand jury secrecy so that the
executive branch attorney may disclose the materials.
Moreover, the Rule confers substantial authority on the
government attorneys, not only in serving as custodian over
grand jury materials, but in many instances allowing
government attorneys to disclose without court permission. See
FED. R. CRIM. P. 6(e)(3)(A), (C), (D). Even for those
disclosures that must be authorized by the court, three of the
five circumstances require the request for disclosure to be made
by the government. FED. R. CRIM. P. 6(e)(3)(E)(iii)–(v). When
a person petitions for disclosure of a grand jury matter, notice
must be given to an attorney for the government. FED. R. CRIM.
P. 6(e)(3)(F).
The government attorneys and the district court together
play a gatekeeping and supervisory role over grand jury
materials. Both the prosecutor and the district court have an
institutional relationship to the grand jury; yet the Rule does
not change other constitutional arrangements between the
courts and the Executive. Nothing in Rule 6(e) suggests that the
court may compel government attorneys to disclose grand jury
materials to third parties who do not meet Article III
requirements. To the contrary, Rule 6(e) establishes a balance,
requiring the agreement of both the courts and the government
lawyers for disclosure in most instances.
The majority’s position, however, entrusts grand jury
secrecy exclusively to the courts—allowing the district court
not only to authorize, but to compel release. Maj. Op. 26. By
contrast, DOJ’s position that impeachment does not fit within
16
the “judicial proceeding” exception would leave grand jury
secrecy solely to the Executive in this political context. The
grand jury, however, is not an appendage of any one branch.
Rule 6(e) should not be read to upend longstanding principles
of separation of powers, nor to create supremacy of either the
courts or the executive branch over the grand jury. See United
States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977)
(“[G]iven the constitutionally-based independence of each of
the three actors—court, prosecutor and grand jury—we believe
a court may not exercise its ‘supervisory power’ in a way which
encroaches on the prerogatives of the other two unless there is
a clear basis in fact and law for doing so. If the district courts
were not required to meet such a standard, their ‘supervisory
power’ could readily prove subversive of the doctrine of
separation of powers.”).
2.
Rule 6(e) codifies some aspects of grand jury practice and
secrecy but does not cover every aspect of the district court’s
supervisory power. Thus, whether a district court’s non-Article
III power extends to issuing a compulsory order to the
executive branch for the benefit of third parties must also be
considered against the historical background of the supervisory
power. Even though our circuit does not recognize any
“inherent” power in the district court over grand jury
disclosure, see McKeever, 920 F.3d at 849, some supervisory
powers exist alongside Rule 6(e). For example, because a grand
jury does not have the power to compel witness testimony, it
may rely on the supervising court to issue and enforce
compulsory process to aid the grand jury’s investigative
function. Seals, 130 F.3d at 457. Additionally, a court has the
power to protect the integrity of grand jury proceedings by
issuing contempt sanctions to attorneys who violate grand jury
secrecy. See In re Sealed Case No. 98-3077, 151 F.3d 1059,
17
1070 (D.C. Cir. 1998). Even though such exercises of power
by the district court go beyond the strictly administrative, they
are closely connected to aiding the grand jury in the exercise of
its core functions. Compulsory process ordered on behalf of
and at the request of the grand jury is not an exercise of the
Article III power, but instead part of the court’s supervisory
function over the grand jury. Judicial assistance in these limited
circumstances requires no jurisdiction or standing by the grand
jury—because the authority for such process inheres in the
limited relationship between the grand jury and judiciary.
By contrast, third parties who seek grand jury information
stand outside of the historic relationship between the grand jury
and the court. As discussed below, there is no longstanding
tradition of courts ordering disclosure of grand jury materials
to third parties. See infra 33–35. When third parties seek the
disclosure of such presumptively secret information, they
cannot rely on the court’s supervisory authority because such
authority extends only to aiding the grand jury. For instance,
we have drawn a sharp distinction between grand jury
witnesses, who are part of the grand jury process, and third
parties, who are not. See In re Grand Jury, 490 F.3d 978, 988
(D.C. Cir. 2007) (“Preventing a third party from reviewing a
witness’s grand jury testimony is essential to guarantee secrecy
to witnesses; preventing the witness from reviewing the
witness’s own testimony is entirely unnecessary to guarantee
secrecy to witnesses.”); United States v. Moussaoui, 483 F.3d
220, 237 (4th Cir. 2007) (“We are certainly unaware of any
long unquestioned power of federal district courts to order the
Government to disclose non-public materials given to the
defense in a criminal trial to third-party civil plaintiffs involved
in litigation in another jurisdiction.” (internal citation and
quotation marks omitted)). Even the prosecutor, who may issue
subpoenas on behalf of the grand jury, must ground his
authority in the “grand jury investigation, not the prosecutor’s
18
own inquiry” because “[f]ederal prosecutors have no authority
to issue grand jury subpoenas independent of the grand jury.”
Lopez v. Dep’t of Justice, 393 F.3d 1345, 1349–50 (D.C. Cir.
2005).
Only the grand jury and those who are part of the grand
jury process—not a third party—may petition a court for
compulsory process pursuant to the court’s limited supervisory
power.5 The supervisory power of the district court exists to
serve the functions of the grand jury, but the district court
cannot use that power to evade the requirements of Article III
or to expand judicial authority over the executive branch.6 See
Chanen, 549 F.2d at 1313 n.5 (admonishing against adopting a
view of “judicial supervisory powers [over the grand jury] so
broad in scope as to risk serious impairment of the
constitutionally-based independence of the Executive, i. e., the
prosecutor, when acting within his own sphere”).
5
The concurring opinion suggests this argument somehow prevents
authorization of disclosure, Concurring Op. 3; however, Rule 6(e)
specifically allows district courts to authorize disclosure by
government attorneys. See supra Part I. By contrast, neither the Rule
nor the traditional supervisory power suggest the court may compel
disclosure by the executive branch, and the concurrence offers not a
single case or example to support the principle that district courts
may compel disclosure to a party that lacks standing.
6
Furthermore, the available evidence suggests that the scope of the
supervisory power prior to the adoption of Rule 6(e) was similarly
limited. Courts allowed grand jury secrecy to be breached only in
very limited circumstances, and there is no evidence of a tradition of
third parties resorting to the courts to compel disclosure. See
generally Mark Kadish, Behind the Locked Door of an American
Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U.
L. REV. 1, 16–22 (1996).
19
C.
This is not the first time Congress has sought grand jury
information in connection with an impeachment proceeding.
The handful of historical examples demonstrate that Congress
has received grand jury materials; however, courts have not
compelled disclosure of materials from the executive branch.
Since the enactment of Rule 6(e), courts analyzing
congressional requests for grand jury materials have been
careful to authorize rather than compel disclosure and have
recognized the separation of powers concerns present in such
cases.
For example, the Eleventh Circuit upheld an order
authorizing disclosure to the House Judiciary Committee
pursuant to the judicial proceeding exception during the
impeachment of Judge Alcee Hastings. See generally Hastings,
833 F.2d 1438. Authorization was all that was necessary
because DOJ “stated that it ha[d] ‘no objection’ to this
disclosure to the Committee.” Id. at 1441–42. Similarly, in
2007, the House Judiciary Committee petitioned for disclosure
of grand jury materials relevant to its impeachment inquiry into
the conduct of Judge Thomas Porteous. See In re Grand Jury
Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No.
09-mc-04346 (E.D. La. Aug. 6, 2009). The district court held
that the Committee demonstrated a particularized need and
authorized the Department to disclose the materials. Id. at *6.
DOJ did not oppose the request, id. at *2, so no compulsory
process was necessary.
Other courts have recognized that Congress should rely on
legislative process to secure grand jury papers, even after
authorization of disclosure. In In re Grand Jury Investigation
of Ven-Fuel, a House Subcommittee Chairman moved for
disclosure under Rule 6(e). 441 F. Supp. 1299 (M.D. Fla.
20
1977). Only after concluding the Chairman had standing,7 the
court determined that it would enforce the authorization of
disclosure, but nonetheless “request[ed] that the Subcommittee
issue its own subpoena duces tecum to the United States
Attorney for the specific documents desired.” Id. at 1307(emphasis added) (internal citation omitted). The court stressed
that the House should utilize the legislative process to enforce
its legislative demand for documents from the executive
branch. Id. at 1307–08. Respect for the political process
counseled in favor of withdrawing the judiciary from such
clashes to allow the political branches to rely upon their own
processes to resolve disputes over grand jury materials.
Courts also considered congressional requests for grand
jury records in impeachment proceedings prior to the adoption
of Rule 6(e). Rule 6(e) gives possession of grand jury materials
to government attorneys, but before Rule 6(e) possession of
grand jury materials was not uniform—sometimes the records
would be held by the district court and sometimes by the
prosecutor. In the few recorded instances of congressional
attempts to obtain grand jury materials prior to Rule 6(e),
possession appears to have been the dispositive factor.8 For
7
The district court relied on United States v. AT&T, 551 F.2d 384,
391 (D.C. Cir. 1976), to support its determination regarding
congressional standing. As we recognized in McGahn, AT&T’s
standing holding is no longer tenable after Raines. See 2020 WL
1125837, at *11–12.
8
The concurring opinion suggests, incorrectly, that the linchpin of
my position is possession. Concurring Op. 1–2. Yet while the
happenstance of physical possession appears to have been a critical
factor prior to Rule 6(e)’s adoption, Rule 6(e)(1) now establishes the
Executive as the designated custodian of grand jury materials. See
supra 15–16. A court’s power to utilize in camera review in
connection with a Rule 6(e) application does not alter DOJ’s duty to
21
example, during a 1945 impeachment inquiry into two judges,
the House Judiciary Committee requested grand jury materials.
The supervising district court directed its deputy clerk to testify
before the Committee regarding the materials. See, e.g.,
Conduct of Albert W. Johnson and Albert L. Watson, U.S. Dist.
Judges, Middle District of Pennsylvania: Hearing Before
Subcomm. of the H. Comm. on the Judiciary, 79th Cong. 62–
65 (1946). While the majority classifies this as an example of
“court-ordered disclosure,” Maj. Op. 14, it fails to note that the
direction was not to another branch, but simply to the court’s
deputy clerk. Because the district court possessed the grand
jury records, disclosure did not require an exercise of Article
III power, but merely an exercise of discretion to release papers
within the court’s control. By contrast, in a 1924 inquiry into
two congressmen, the House failed to obtain grand jury
materials that were in the possession of the Attorney General.
6 Cannon’s Precedents of the House of Representatives of the
United States § 402 (“Cannon’s”); see also H.R. Rep. No. 68-
282 (1924) (grand jury investigation of John W. Langley and
Frederick N. Zihlman). The House does not appear to have
considered petitioning the supervising court for an order
compelling the Attorney General to turn over the materials.
Both before and after Rule 6(e), the federal courts have not
utilized their limited supervisory authority to compel the
maintain grand jury documents. Neither of the cases cited by the
concurrence supports the claim that the mere availability of in
camera review can be used as a backdoor for a court to compel
disclosure over the objection of the Executive to a party that lacks
standing. To the contrary, both cases involved voluntary compliance
by the Executive. See In re Report & Recommendation of June 5,
1972 Grand Jury Concerning Transmission of Evidence to House of
Representatives, 370 F. Supp. 1219, 1221 (D.D.C. 1974), aff’d,
Haldeman v. Sirica, 501 F.2d714 (D.C. Cir. 1974); In re Sealed Case
No. 98-3077, 151 F.3d at 1068.
22
production of grand jury materials to Congress. The historical
precedents cited by the Constitutional Accountability Center in
its amicus brief are not to the contrary. Not one of the cited
examples involved a court issuing an order to compel
disclosure of grand jury materials to Congress. Rather, these
precedents all involved, at most, only authorization to release
grand jury materials.9 Thus, whenever Congress has received
9
The 1811 Toulmin precedent cited by CAC and the majority did
not involve compulsory process, judicial involvement of any sort, or
even secret grand jury materials. See 3 Asher C. Hinds, Hinds’
Precedents of the House of Representatives § 2488 (“Hinds’”). The
other historical instances CAC cites similarly did not involve
compulsory judicial process. See 2 Hinds’ § 1123; H.R. Rep. No. 57-
1423 (1902) (contested election in which the House received a grand
jury report without evidence of judicial involvement); 6 Cannon’s
§ 74 (1921 contested election in which grand jury materials were
made available to the Senate with no evidence of judicial
involvement); id. § 399 (1924 Senate conduct inquiry in which a
district judge disclosed “some of the[] names” of grand jury
witnesses known to the judge but does not appear to have produced
“minutes of the grand jury proceeding” or the “documentary
evidence which had gone before the grand jury” in response to a
subpoena); Haldeman, 501 F.2d at 715 (“We think it of significance
that the President of the United States, who is described by all parties
as the focus of the report and who presumably would have the
greatest interest in its disposition, has interposed no objection to the
District Court’s action” in disclosing a grand jury report the district
judge possessed); Hastings, 833 F.2d at 1441–42 (“[T]he
Department of Justice has stated that it has ‘no objection’ to this
disclosure to the Committee.”); In re Cisneros, 426 F.3d 409, 412
(D.C. Cir. 2005) (noting the Independent Counsel is “not under the
aegis of either the court or a grand jury” and granting his petition to
disclose materials to Congress); In re Grand Jury Investigation of
Judge Porteous, No. 09-mc-04346, at *6–7 (“[T]he Department of
Justice is authorized to disclose to authorized personnel of the House
of Representatives” grand jury materials related to the Porteous
23
grand jury materials in the past, it was with the cooperation of
the entity that possessed the materials—either the supervising
court, if the materials were within its custody, or the executive
branch, which turned over the materials without being ordered
by a court to do so.10 The foregoing examples demonstrate that
although courts have sometimes authorized disclosure to third
parties pursuant to their supervisory authority or under the
judicial proceeding exception of Rule 6(e), courts have not
compelled disclosure to third parties over the objection of the
executive branch.
* * *
Even in the grand jury context, we are obliged to ensure
that a dispute is within our Article III authority. Nothing in
Rule 6(e), the traditional supervisory power, or historical
practice changes the relationship between the coordinate
branches or the general rule that a court exercises the Article
III judicial power when it issues compulsory process to the
executive branch.
III.
Because a compulsory order to the executive branch in aid
of Congress is an essential attribute of the Article III judicial
power, the Committee must establish standing in order to
investigation and “Department of Justice personnel may discuss”
with the Committee “matters occurring before the grand jury.”).
10
The historical practice also casts doubt on DOJ’s position that an
impeachment cannot be a judicial proceeding. DOJ has previously
consented to the release of materials for impeachment proceedings
and specifically agreed that a “Senate impeachment trial qualifies as
a ‘judicial proceeding,’ and that a House impeachment inquiry is
‘preliminary to’ the Senate trial.” Hastings, 833 F.2d at 1440–41.
24
obtain judicial relief. This Part explains why the Committee
lacks standing to seek compulsory process against the
executive branch for the grand jury materials. First, in light of
Raines and our court’s recent decision in McGahn, the
Committee would not have standing to seek judicial
enforcement of its subpoena to DOJ. Because this case
similarly presents a purely interbranch conflict, the Committee
has no standing to seek a judicial order compelling DOJ to
produce the same papers in the context of a Rule 6(e)
proceeding. Second, although McGahn leaves open the
possibility that legislative standing could be created by statute,
Rule 6(e) creates no informational right to grand jury materials
and the denial of such materials is not a judicially cognizable
injury. Therefore, irrespective of whether a statute could
establish congressional standing, Rule 6(e) does not. Finally,
allowing standing in this context would run against historical
practice and the limited role of the federal judiciary in our
system of separated powers. Raines, 521 U.S. at 819 (standing
requires the dispute to be “traditionally thought to be capable
of resolution through the judicial process” (quotation marks
omitted)).
A.
“[T]he law of [Article] III standing is built on a single
basic idea—the idea of separation of powers.” Raines, 521 U.S.
at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). The
Article III judicial power extends only to cases and
controversies, disputes that present concrete and particularized
injuries to the rights of individuals. A rigorous standing
analysis restricts courts to disputes traditionally within the
judicial power. “The statutory and (especially) constitutional
elements of jurisdiction are an essential ingredient of
separation and equilibration of powers, restraining the courts
from acting at certain times, and even restraining them from
25
acting permanently regarding certain subjects.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). The Court
often decides interbranch conflicts, but only when such
conflicts implicate the rights of private parties. See Raines, 521
U.S. at 820. Conflicts between the executive branch and
Congress are generally settled in the political back and forth,
because each branch has the constitutional motives and means
to defend its own powers and “resist encroachments of the
others.” The Federalist No. 51, at 268–69 (James Madison).
When Congress brings suit against the executive branch,
we must be especially careful to ensure that the suit is properly
within our jurisdiction. As we recently explained, “we lack
authority to resolve disputes between the Legislative and
Executive Branches until their actions harm an entity ‘beyond
the [Federal] Government.’ Without such a harm, any dispute
remains an intramural disagreement about the ‘operations of
government’ that we lack power to resolve.” McGahn, 2020
WL 1125837, at *3 (quoting Raines, 521 U.S. at 834 (Souter,
J., concurring in the judgment)). In McGahn, we held that the
Committee lacks standing to “invoke the jurisdiction of the
federal courts to enforce its subpoena” for the testimony of
former Counsel to the President Donald McGahn. Id. at *7.
McGahn made clear that generalized disputes between
Congress and the Executive are not justiciable because
standing in interbranch disputes is at odds with the
constitutional separation of powers, the nature of the judicial
power, and historical practice. Id.11
11
As McGahn recognized, “we may adjudicate cases concerning
congressional subpoenas that implicate the rights of private parties.”
2020 WL 1125837, at *16 (citing Mazars, 940 F.3d at 723). In Trump
v. Mazars, the House Oversight Committee’s subpoena was directed
to the President’s private accounting firm. Although the subpoena
raised separation of powers concerns and was intertwined with the
26
The framework in McGahn governs the standing inquiry
in the case before us. To begin with, the Committee would not
have standing to enforce its April subpoena for the grand jury
materials—a legislative subpoena against the executive branch
must be enforced through legislative process. The fact that the
Committee here seeks to use the courts to compel production
of the same materials under the aegis of Rule 6(e) does not alter
the standing analysis. The Committee asserts that its
“continued lack of access to the material is a quintessential
informational injury sufficient to confer standing.” Comm.
Supp. Br. 5. The nature of the interbranch dispute and the
relevant constitutional bar in this case is indistinguishable from
McGahn: In both cases the Committee seeks to invoke the
compulsory powers of the federal judiciary in an informational
dispute with the executive branch; however, the Committee’s
alleged “informational injury” is insufficient to confer standing
because federal courts lack constitutional power to issue an
“official actions of the Chief Executive,” Mazars, 940 F.3d at 752
(Rao, J., dissenting), it nonetheless involved private parties. When
determining standing, we focus on the identity of the parties rather
than the issues they seek to adjudicate. Valley Forge Christian Coll.
v. Americans United for Separation of Church & State, Inc., 454 U.S.
464, 485 (1982). Unlike Mazars, this case presents a purely
interbranch dispute between the House and the Executive, over
which this court lacks jurisdiction. Moreover, this case arises in
relation to a formal impeachment inquiry and trial, which raises
concerns regarding justiciability. See Raines, 521 U.S. at 829 (no
standing for suits that are “contrary to historical experience”);
(Walter) Nixon, 506 U.S. 224, 234 (1993) (“[T]he Judiciary … were
not chosen to have any role in impeachments.”). These concerns
were not present in Mazars. See 940 F.3d at 779 n.20 (Rao, J.,
dissenting) (“[T]he Committee has not relied on the impeachment
power for this subpoena …. Congress, the Executive, and the courts
have maintained that requests under the legislative and impeachment
powers may be treated differently.”).
27
injunction in a dispute between Congress and the Executive
when no individual rights are at stake. See McGahn, 2020 WL
1125837, at *3 (“[T]he Committee’s dispute with the
Executive Branch is unfit for judicial resolution because it has
no bearing on the ‘rights of individuals.’” (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 170 (1803))).
The majority insists that this case “is unlike other inter-
branch disputes” and distinguishable from McGahn because
the grand jury is an “appendage of the court” and the
Department of Justice is “simply the custodian of the grand jury
materials.” Maj. Op. 9, 26. The majority further maintains that
“it is the district court, not the Executive or the Department,
that controls access to … grand jury materials.” Id. at 10. These
sweeping claims cannot be squared with Rule 6(e), our cases,
and the history of the grand jury.
The text and structure of Rule 6 make clear that the district
court and the executive branch share responsibility for
maintaining grand jury secrecy and for overseeing appropriate
disclosures. As discussed above, government attorneys have
authority to disclose in some circumstances without court
approval; in other circumstances, the government attorney
must approve the disclosure. See, e.g., FED. R. CRIM P.
6(e)(3)(A)–(D), (E)(iii)–(v). In McKeever, we explained that
the district court cannot release grand jury records on its own
initiative because “Rule 6 assumes the records are in the
custody of the Government, not that of the court” and the
district court may authorize disclosure by an “attorney for the
government.” 920 F.3d at 848 (citing FED. R. CRIM. P. 6(e)(1)).
The majority’s contrary position relies in part on the reasoning
of other circuits that have concluded grand jury records are
“court records” over which the district court can exercise
“inherent authority” because the grand jury is part of the
judicial process. Maj. Op. 9 (citing cases). Yet we have recently
28
stated it is “not at all clear” that grand jury records are “judicial
records” and noted that this court has rejected that conclusion
in other contexts. McKeever, 920 F.3d at 848. Grand jury
documents, like the grand jury itself, belong neither to the
executive branch nor to the courts.
Contrary to the majority’s classification of the grand jury
as part of the judiciary, the Supreme Court has explained that
the grand jury’s “institutional relationship with the Judicial
Branch has traditionally been, so to speak, at arm’s length.”
Williams, 504 U.S. at 47. The Court has also recognized the
important relationship between the prosecutor and the grand
jury. See, e.g., Sells Eng’g, 463 U.S. at 430 (“[A] modern grand
jury would be much less effective without the assistance of the
prosecutor’s office…. [The grand jury] depends largely on the
prosecutor’s office to secure the evidence or witnesses it
requires.”). Government attorneys have strong institutional
reasons for protecting grand jury secrecy in relation to ongoing
and future prosecutions.
Thus, although the grand jury relies on both court and
prosecutor for the exercise of its functions, it is an “appendage”
of neither. The grand jury exists apart from all three branches.
See Williams, 504 U.S. at 47 (“[The grand jury] has not been
textually assigned, therefore, to any of the branches described
in the first three Articles. It ‘is a constitutional fixture in its own
right.’” (quoting Nixon v. Sirica, 487 F.2d 700, 712 n.54 (D.C.
Cir. 1973))); Chanen, 549 F.2d at 1312 (“[T]he functions of the
grand jury are intimately related to the functions of court and
prosecutor …. But … the grand jury is not and should not be
captive to any of the three branches.” (internal citations
omitted)). A district court may supervise the grand jury, but
such supervision does not change the division of power
between the court and the political branches.
29
Because this case is fundamentally an interbranch dispute,
the House may seek judicial process against the executive
branch only if it can demonstrate Article III standing. The
Committee’s claim must fit within the increasingly narrow
exceptions for congressional standing. Here, the Committee
asserts no individual harm to a lawmaker’s personal interests.
Cf. Powell v. McCormack, 395 U.S. 486 (1969) (finding a
justiciable case or controversy for elected Member of Congress
to sue for wrongful exclusion from Congress, which deprived
him of salary and seat). The Committee here is “an institutional
plaintiff” representing the House of Representatives. Comm.
Supp. Br. 11 (quoting Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015)); see also
H.R. Res. 430, 116th Cong. (2019) (authorizing House
Judiciary Committee “to petition for disclosure of” the grand
jury materials at issue “pursuant to Federal Rule of Criminal
Procedure 6(e)”). Although the Court has suggested some
limited standing for state legislatures raising institutional
interests, McGahn forecloses institutional standing for
Congress in suits against the executive branch. See 2020 WL
1125837, at *3–8. McGahn, however, leaves open the question
of whether a “statute authorizing a suit like the Committee’s
would be constitutional.” Id. at *15. It is doubtful whether this
question in fact remains open after Raines, where the Court
noted “[i]t is settled that Congress cannot erase Article III’s
standing requirements by statutorily granting the right to sue to
a plaintiff who would not otherwise have standing.” 521 U.S.
at 820 n.3. Nonetheless, this remains the only possible path for
the Committee’s standing in this case. Assuming a statute
might be able to create standing in an interbranch dispute, I
analyze whether Rule 6(e) creates a legally cognizable injury
sufficient to sustain the Committee’s standing.
30
B.
Congress may “elevat[e] to the status of legally cognizable
injuries concrete, de facto injuries that were previously
inadequate in law.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 578 (1992). Yet as the Court recently explained, a plaintiff
must always demonstrate that it has suffered a sufficiently
“concrete injury even in the context of a statutory violation.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). Thus, the
mere fact that “a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that right,”
“does not mean that a plaintiff automatically satisfies the
injury-in-fact requirement.” Id. We have since elaborated on
the Court’s holding in Spokeo, explaining that “[f]or a statutory
violation to constitute an injury in fact, then, the statute must
protect the plaintiff’s concrete interest—i.e., afford the putative
plaintiff a right to be free of a harm capable of satisfying Article
III.” Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059, 1064
(D.C. Cir. 2019).
The Committee maintains that it has standing because
Rule 6(e) “authorizes court-ordered disclosures” when grand
jury material is sought preliminary to a judicial proceeding, and
the House is therefore “entitled to the material under the Rule.”
Comm. Supp. Br. 5. Contrary to the House’s assertions,
however, Rule 6(e) does not create an entitlement to invoke the
courts’ aid in compelling production of grand jury information.
See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395,
399 (1959) (Rule 6(e) does not confer upon an applicant “a
‘right’ to the delivery to it of the witness’ grand jury
testimony”); see also In re Fed. Grand Jury Proceedings, 760
F.2d 436, 439 (2d Cir. 1985) (explaining that there “is no
‘absolute right’ to … grand jury testimony” under the judicial
proceeding exception). Rather, Rule 6(e) starts from the
premise that “disclosure of matters occurring before the grand
31
jury is the exception and not the rule,” and then proceeds to
“set[] forth in precise terms to whom, under what
circumstances and on what conditions grand jury information
may be disclosed.” McKeever, 920 F.3d at 844 (emphasis
added) (citation and quotation marks omitted).
The decision to authorize the release of grand jury
materials in connection with a judicial proceeding is thus
committed to the sound discretion of the supervising court,
which “may” authorize disclosure “at a time, in a manner, and
subject to any other conditions that it directs.” FED. R. CRIM. P.
6(e)(3)(E). Even then, disclosure is appropriate only if the court
first concludes that “the party seeking material covered by the
exception ha[s] made a sufficiently strong showing of need to
warrant disclosure.” McKeever, 920 F.3d at 846.
Rule 6(e) is thus unlike other statutes and regulations that
require the disclosure of certain categories of information, such
as the Freedom of Information Act. See 5 U.S.C. § 552(providing that agencies “shall make available” to the public
various categories of records and information); Zivotofsky ex
rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 617–18 (D.C. Cir.
2006) (noting that under FOIA “[t]he requester is injured-in-
fact for standing purposes because he did not get what the
statute entitled him to receive”). The Committee’s attempt to
analogize Rule 6(e) to such statutes is misguided. Each of the
cases cited by the Committee to support its theory of
informational injury-in-fact involved claims that a plaintiff was
denied access to information in violation of an express
statutory or regulatory mandate to disclose the information at
issue. For example, the Federal Election Campaign Act of 1971
required that political committees make certain information
public, and so an alleged failure to disclose such information
would constitute a judicially cognizable injury. See FEC v.
Akins, 524 U.S. 11, 21 (1998). Similarly, the Federal Advisory
32
Committee Act, 5 U.S.C. App. 2 § 10, requires release of
information pertaining to certain committees advising the
executive branch. The Court held that a deprivation of such
information constituted an injury sufficient to confer standing.
See Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449–
50 (1989). Because these statutes created affirmative disclosure
obligations, a plaintiff could establish an Article III injury by
alleging a refusal to provide the required information.12
By contrast, Rule 6(e)(3) creates no such injury because it
does not afford any concrete right. Rather, the Rule is purely
permissive, providing that the district court “may authorize
disclosure” of grand jury materials. The existence of an
enumerated exception to grand jury secrecy under Rule 6(e)(3)
is only the starting point. After determining an exception
applies, a supervising court must determine, in its discretion,
whether disclosure of the grand jury materials may be
warranted under the circumstances and whether the applicant
has demonstrated a “particularized need” for the materials. See,
e.g., Sells Eng’g, 463 U.S. at 442–43. Even this permissive
standard refers only to authorization of disclosure, not to
disclosure itself. Moreover, the Court has never held that Rule
6(e)(3) creates a private right of action for a third party to
obtain injunctive relief. See Pittsburgh Plate Glass, 360 U.S.
at 399. Although Rule 6(e)(3) allows the court to remove the
12
The Committee’s attempt to analogize Rule 6(e) to statutes like
FOIA fails for an additional reason. Although Rule 6(e) “ha[s] the
force of law,” Comm. Supp. Br. 6–7 (quoting Deaver v. Seymour,
822 F.2d 66, 70 n.9 (D.C. Cir. 1987)), under the Rules Enabling Act,
a federal rule of criminal procedure cannot vest any substantive right
to information. 28 U.S.C. § 2072(b) (“Such rules shall not abridge,
enlarge or modify any substantive right.”); see also Kontrick v. Ryan,
540 U.S. 443, 453 (2004) (“[I]t is axiomatic” that rules promulgated
pursuant to the Rules Enabling Act “do not create or withdraw
federal jurisdiction.”).
33
shield of grand jury secrecy through authorization, a third party
must look elsewhere for a right of action to compel disclosure.
See Rutherford, 509 F.3d at 793 (“[Rule] 6(e)(3)(E)(i),
pertaining to the disclosure of grand jury documents, cannot be
used to mandate such release.”).
It is instructive that we have held other parts of Rule 6(e)
can be enforced by third parties through a private right of
action. For example, a third party has a “very limited” private
right of action to enforce Rule 6(e)(2)’s secrecy requirement by
seeking “injunctive relief or civil contempt of court through the
district court supervising the grand jury.” In re Sealed Case No.
98-3077, 151 F.3d at 1070 (quotation marks omitted). Rule
6(e)(2) uses the mandatory language “must not disclose,”
which courts have interpreted as vesting a private right that
may be judicially redressable. Rule 6(e)(3), unlike Rule
6(e)(2), does not provide a legal entitlement to compel
production of grand jury materials.13 Thus, a third party such
as the Committee that seeks a court order to compel production
must demonstrate an independent legal right to such materials14
13
Other statutes demonstrate that Congress knows how to vest
district courts with the power to compel production of grand jury
materials. For example, the Jencks Act provides that the government
may be ordered to produce grand jury witness statements. 18 U.S.C.
§ 3500(b). The Act also provides remedies if the government fails to
comply with a court’s disclosure order. 18 U.S.C. § 3500(d).
14
Legal rights to grand jury materials have been found in different
contexts. See, e.g., Gibson v. United States, 403 F.2d 166 (D.C. Cir.
1968) (criminal defendant asserting constitutional rights, such as the
need to obtain potentially exculpatory evidence in a pending criminal
trial); Dennis v. United States, 384 U.S. 855, 869–70 (1966)
(criminal discovery); Illinois v. Abbott & Assocs., Inc., 460 U.S. 557(1983) (Section 4F(b) of the Clayton Act, 15 U.S.C. § 15f(b));
United States v. Procter & Gamble, 356 U.S. 677 (1958) (civil
plaintiff’s discovery rights). Our sister circuits have prevented
34
or possess a judicial device for compelling the materials, such
as a subpoena. See Rutherford, 509 F.3d. at 795 (“[Rule 6(e)]
does not authorize third parties to obtain grand jury materials
from the government against the government’s objections
without a proper device for compelling the documents, such as
a subpoena duces tecum.”).
In sum, Rule 6(e) fails to create a legally cognizable
informational right, the denial of which might constitute an
injury sufficient to support congressional standing. I therefore
need not opine on the broader question left open by McGahn
regarding whether a statute can confer such standing in the first
place.
C.
In addition to conflicting with McGahn and the text of
Rule 6(e)(3), the Committee’s “attempt to litigate this dispute
at this time and in this form is contrary to historical
experience.” Raines, 521 U.S. at 829. This type of interbranch
dispute is not one “traditionally thought to be capable of
resolution through the judicial process.” Allen, 468 U.S. at 752(quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). The fact that
Congress seeks grand jury materials does not erase the
constitutional boundaries between the judiciary and Congress
with respect to impeachment, nor does it displace the separate
parties from using Rule 6(e)(3) to compel disclosure absent a legal
right. For example, in Moussaoui, the Fourth Circuit rejected an
attempt to use Rule 6(e) to “compel the Government to disclose non-
public documents to crime victims involved in a civil action in a
different jurisdiction.” 483 F.3d at 230; see also California v. B.F.
Goodrich Co., 619 F.2d 798, 801 (9th Cir. 1980) (after authorizing
disclosure, adding that “[t]he Attorney General need not disclose the
materials if he objects to their disclosure”).
35
legislative processes that Congress has for obtaining
information.
The Committee initially sought authorization of disclosure
for the Mueller grand jury materials preliminary to an
impeachment proceeding. Yet impeachment is a separate
process that occurs in the House and the Senate, without the
interference or involvement of the courts. Parallel to the
ordinary criminal process, the Constitution vests the power of
impeachment and power to try all impeachments solely in the
House and Senate respectively. U.S. CONST. art. I, § 2, cl. 2,
§ 3, cl. 6. The Constitution carefully separates the criminal
process in the courts from the impeachment process in
Congress. See U.S. CONST. art. I, § 3, cl. 7 (“[T]he Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to
Law.”); The Federalist No. 65, at 340 (Alexander Hamilton).
As the Supreme Court has explained, “the Judiciary, and the
Supreme Court in particular, were not chosen to have any role
in impeachments.” (Walter) Nixon, 506 U.S. at 234.
The text and structure of the Constitution’s provisions
regarding the impeachment power confirm the separation of the
courts from this process. The “risks from overlapping powers
reach their apogee in a presidential impeachment trial.”
(Walter) Nixon v. United States, 938 F.2d 239, 242–43 (D.C.
Cir. 1991), aff’d, 506 U.S. 224. Thus, courts should not
interfere with the exercise of the impeachment powers, and the
House does not have a positive constitutional right to assistance
from the other branches in the exercise of its sole power of
impeachment. See (Walter) Nixon, 506 U.S. at 231(interpreting the word “sole” to exclude any judicial
“assistance or interference” in an impeachment proceeding
(citation omitted)). The House must look to its own powers or
36
those of the court of impeachments, the Senate, for compulsory
aid in an impeachment investigation.
History confirms that both Congress and the courts have
maintained the separation between impeachment and the
judicial process. In the only three previous presidential
impeachment investigations, as well as other impeachments,
the House has never resorted to the courts to compel materials
from the executive branch. As in Raines, “[i]t is evident from
several episodes in our history that in analogous confrontations
between one or both Houses of Congress and the Executive
Branch, no suit was brought on the basis of claimed injury to
official authority or power.” 521 U.S. at 826; see also McGahn,
2020 WL 1125837, at *6 (“Neither interbranch disputes (in
general) nor interbranch information disputes (in particular)
have traditionally been resolved by federal courts.”).
During the impeachment investigation of President Nixon,
the House Judiciary Committee recognized that seeking
judicial assistance would likely weaken the authority of the
House as well as exceed the judicial power of the courts. In its
impeachment report, the Committee held that “it would be
inappropriate to seek the aid of the courts to enforce its
subpoenas against the President” because it would undermine
“the constitutional provision vesting the power of
impeachment solely in the House of Representatives.” H.R.
Rep. No. 93-1305, at 210 (1974) (noting also the “express
denial by the Framers of the Constitution of any role for the
courts in the impeachment process”). The Committee was
concerned that judicial involvement would undermine its
powers because “the court would necessarily have to determine
whether the subpoenaed material was reasonably relevant to
the inquiry.” Id. at 212. The Committee also raised concerns
that the courts would not have “adequate means” to enforce a
congressional subpoena because the only viable remedy for the
37
President’s noncompliance would be impeachment, which
“would ultimately be adjudicated in the Senate.” Id. The House
agreed and, in line with this position, did not seek court orders
to obtain grand jury materials. Instead, it received most
Watergate grand jury materials by order of the President and
on the petition of the Watergate grand jury, without objection
from the executive branch. See Letter from Peter W. Rodino,
Jr., Chairman, House Judiciary Committee, to John J. Sirica,
U.S. District Judge (Mar. 8, 1974); In re Report &
Recommendation of June 5, 1972 Grand Jury Concerning
Transmission of Evidence to House of Representatives, 370 F.
Supp. at 1221.
Similarly, during the impeachment of President Clinton,
the House Judiciary Committee never resorted to the courts to
compel production from the executive branch and instead
relied on the addition of an article of impeachment alleging
insufficient responses from the President to numerous
interrogatories issued by the Committee. See generally H.R.
Rep. No. 105-830 (1998). Moreover, neither the Judiciary
Committee in the impeachment inquiry nor the Senate
Whitewater Committee resorted to the courts to receive grand
jury materials. See S. Rep. No. 104-191, at 9 (1995) (“[G]rand
jury secrecy restrictions forbid the Committee’s participation
in discussions over subpoenas to the White House.”). To the
extent the Judiciary Committee received grand jury materials,
it was not through a Rule 6(e)(3) application filed by the
Committee. Rather, a member of the executive branch, the
Independent Counsel, disclosed the materials to Congress
pursuant to the Ethics in Government Act, 28 U.S.C. § 595(c),
after receiving Rule 6(e) authorization from the Special
Division of this court. See H.R. Rep. No. 105-795, at 32 (1998).
The impeachment of Andrew Johnson also conforms to
this understanding. The “tedious job of taking testimony and
38
searching through documents” was conducted solely by the
House, with no mention of judicial involvement. Michael Les
Benedict, “The Impeachment of President Andrew Johnson,
1867–68” in Congress Investigates at 263–64; cf. Mississippi,
71 U.S. at 501 (noting it would be a “strange spectacle” for the
Court to attempt to “restrain by injunction the Senate of the
United States from sitting as a court of impeachment”).
These historical precedents further reinforce the
availability and effectiveness of legislative process to enforce
informational requests. “Congress (or one of its chambers) may
hold officers in contempt, withhold appropriations, refuse to
confirm the President’s nominees, harness public opinion,
delay or derail the President’s legislative agenda, or impeach
recalcitrant officers.” McGahn, 2020 WL 1125837, at *5. The
ultimate form of accountability for the President is an article of
impeachment. Impeachment is a power the House must
exercise pursuant to its own processes and standards, and self-
help is always available.
Moreover, when sitting as a court of impeachment, the
Senate may issue the same compulsory process and orders as
any other court. It may issue warrants, summons, and
subpoenas, and even arrest and hold individuals who fail to
comply. Indeed, the Senate Rules provide that the Senate, not
the courts, makes determinations regarding relevancy and
compulsory process. See S. Res. 479, 99th Cong. (1986),
reprinted in Senate Manual § 176, 113th Cong. (2014).15
15
During the impeachment trial of President Clinton, Chief Justice
Rehnquist noted that a deposition could be taken only under the
Senate’s authority because “a deposition is an adjunct to a court
proceeding, and it is only from the court that the authority to compel
attendance of witnesses and administer oaths is derived.” Letter from
39
Although the Committee now seeks to reassign the
Senate’s authority to the judiciary, this court has observed that
the Article III courts must apply the same principles of comity
and abstention to the Senate sitting as “the constitutionally-
designated court of impeachment” as it would to any other
“coordinate federal court.” Hastings, 887 F.2d 332, 1989 WL
122685, at *1; see also id. (“[W]e have not found any case in
which the judiciary has issued injunctive or declaratory relief
intercepting ongoing proceedings of the legislative branch.”).
We should decline to issue compulsory process in an
impeachment trial committed to the “sole” discretion of the
Senate.
* * *
Congress has historically relied upon its own
constitutional powers to enforce subpoenas and informational
requests against the executive branch. See McGahn, 2020 WL
1125837, at *7 (“Principles and practice thus agree: The
Committee may not invoke the jurisdiction of the federal courts
to enforce its subpoena.”). “[P]olitical struggle and
compromise” is the Constitution’s chosen method to resolve
interbranch disputes. Barnes v. Kline, 759 F.2d 21, 55 (D.C.
Cir. 1984) (Bork, J., dissenting). With respect to grand jury
records in the possession of the executive branch, no less than
other disputes, the Committee must demonstrate Article III
standing. Here, the Committee can point to no statutory
entitlement to this information and the judicial relief it seeks is
contrary to historical practice and the separation of powers.
Accordingly, the Committee lacks standing to request a court
order compelling DOJ to disclose the grand jury materials.
William Rehnquist, Chief Justice of the United States, to Tom
Harkin, United States Senator (Jan. 25, 1999).
40
IV.
Fundamental principles of separation of powers and the
relation of the grand jury to the three branches necessarily lead
to the conclusion that the Committee cannot fight this
interbranch dispute through the courts. Although it is well
established that a court exercises the Article III judicial power
when issuing a compulsory order to the executive branch, the
fact that the Committee here seeks grand jury materials has
obscured the ordinary justiciability requirements. When
pursuing an impeachment investigation, the Committee may
petition for authorization of disclosure under the “judicial
proceeding” exception in Rule 6(e)(3). Nothing in the Rule,
however, allows the district court to compel the executive
branch to disclose grand jury materials to a party that lacks
standing. The district court’s supervisory power over the grand
jury cannot expand judicial authority over the executive
branch.
The majority refuses to consider the first and most
fundamental question presented in every case—namely
whether we have the power to decide it. Although the majority
and concurrence refer in the abstract to the supervisory power,
they cite not a single case in which a court has ordered the
executive branch to release grand jury materials to a party
without standing. Our duty to ensure that we have jurisdiction
cannot be brushed aside by the expedient agreement of the
executive branch and the House to support the Committee’s
standing. “[E]very federal appellate court has a special
obligation to satisfy itself not only of its own jurisdiction, but
also that of the lower courts in a cause under review, even
though the parties are prepared to concede it.” Steel Co., 523
U.S. at 94 (quotation marks omitted). Acquiescence by the
political branches cannot erase constitutional boundaries. See,
e.g., Free Enter. Fund. v. Pub. Co. Accounting Oversight Bd.,
41
561 U.S. 477, 497 (2010) (“[T]he separation of powers does
not depend on … whether ‘the encroached-upon branch
approves the encroachment.’” (quoting New York v. United
States, 505 U.S. 144, 182 (1992))); Clinton v. New York, 524
U.S. 417, 447 (1998) (support from both political branches for
the Line Item Veto Act could not override the “finely wrought
procedure commanded by the Constitution” (quotation marks
omitted)); INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (“The
assent of the Executive to a bill which contains a provision
contrary to the Constitution does not shield it from judicial
review.”).
In a similar vein, the courts should not defer to the political
branches with respect to protecting the integrity of the Article
III judicial power. Inevitably, there will be times when
institutional interests lead Congress or the Executive to seek
out the courts to resolve messy political matters. In this case,
the House repeatedly asserted that it should be treated as would
“every other litigant” seeking grand jury materials under Rule
6(e). Comm. Br. 51–52; see also Comm. Supp. Br. 12. The
House chose to press its standing in the third branch, rather than
rely on the full and awesome powers of the first.16 Similarly,
the Department of Justice here only selectively invokes Article
16
By contrast, during the Nixon impeachment, the House Judiciary
Committee resisted resort to the courts to enforce impeachment
related process because judicial involvement in impeachment
matters would be inappropriate, and moreover, would weaken
Congress as an institution. See H.R. Rep. No. 93-1305, at 210–12
(1974); see also Raoul Berger, Congressional Subpoenas to
Executive Officials, 75 COLUM. L. REV. 865, 893 (1975) (“[P]ossibly
the Committee was reluctant to surrender a jot of its paramountcy in
conducting an impeachment investigation; and it did have an
ultimate sanction—to add an article for contempt of the House by
refusal to comply with its subpoena. Presidential infringements on
the prerogatives of the House are impeachable.”).
42
III to press for its institutional self-interest. See DOJ Supp. Br.
3–6. The Constitution gives the Executive and Congress the
constitutional means and motives to pursue the interests of their
respective departments. In purely interbranch disputes,
however, those constitutional means do not include judicial
review.
Moreover, the grand jury context does not alter the
justiciability requirements of Article III. The role of the courts
in our system of separated powers is to preserve individual
rather than institutional rights. See Marbury, 5 U.S. (1 Cranch)
at 170 (“The province of the court is, solely, to decide on the
rights of individuals, not to enquire how the executive, or
executive officers, perform duties in which they have a
discretion.”); McGahn, 2020 WL 1125837, at *3 (“[T]he
Committee’s dispute with the Executive Branch is unfit for
judicial resolution because it has no bearing on the ‘rights of
individuals.’” (quoting Marbury, 5 U.S. (1 Cranch) at 170));
see also Antonin Scalia, The Doctrine of Standing as an
Essential Element of the Separation of Powers, 17 SUFFOLK U.
L. REV. 881, 884 (1983). The Article III judicial power does
not include the “amorphous general supervision of the
operations of government.” Raines, 521 U.S. at 829 (citation
and quotation marks omitted). Our Article III courts are
confined to the less flashy but nonetheless vital “species of
contest which is termed a lawsuit.” Barnes, 759 F.2d at 52
(Bork, J., dissenting) (quoting 1 A. De Tocqueville,
Democracy in America 106–07 (T. Bradley ed. 1945)); cf.
Spokeo, 136 S. Ct. at 1551 (Thomas, J., concurring) (“These
limitations [on standing] preserve separation of powers by
preventing the judiciary’s entanglement in disputes that are
primarily political in nature. This concern is generally absent
when a private plaintiff seeks to enforce only his personal
rights against another private party.”).
43
In our constitutional democracy, most decisions are left to
the people and their representatives. The courts play an
essential role in saying what the law is, but they are not all-
purpose umpires, available to referee any dispute between the
other branches. Unless presented with a proper case or
controversy, the courts do not advise or review the acts of the
coordinate branches or the disputes that may arise between
them. As discussed above, these separation of powers concerns
are at their height in the impeachment context. The courts
should have no part of assisting or interfering with
impeachment proceedings. See (Walter) Nixon, 506 U.S. at233–34. Institutional disputes between the executive branch
and Congress often pertain to political arrangements and are
fought under political standards, wholly outside the purview of
the courts.
Furthermore, maintaining careful control over
jurisdictional boundaries is one of the primary mechanisms of
self-defense for the judiciary, because it avoids entangling
unelected judges in the political sparring of the day. See
McGahn, 2020 WL 1125837, at *4 (“Interbranch disputes are
deeply political and often quite partisan…. By restricting the
role of the judiciary, Article III preserves the ‘public
confidence’ in the federal courts.” (quoting Valley Forge
Christian Coll., 454 U.S. at 474)). The political branches seek
judicial resolution of their interbranch dispute today, yet may
tomorrow find the courts an inconvenient interference. If courts
enter the business of resolving interbranch disputes, the branch
losing the judicial contest has every incentive to discredit the
motive and means employed by the judiciary—charges against
which the judiciary has few protections when it has decided a
case outside the boundaries of the judicial power. Moreover, a
judicial decision in these disputes may allow the political
branches to escape accountability for making their case to the
American people and instead deflect responsibility to the
44
courts. That was not the system designed by our Framers. If the
court picks sides in a political dispute, we not only compromise
the boundaries of our own power, but also weaken the political
accountability of the other branches.
Any doubt regarding the unsuitability of the courts for this
interbranch dispute should be put to rest in the circumstances
of this case. The Senate trial of President Trump concluded
more than a month before publication of this opinion. Even
when acting on an expedited basis, courts cannot move with the
alacrity and speed of the political process. And indeed, that
process has moved on without our decisions. The flurry of
supplemental filings recounting the litigating positions of the
President and the House in the impeachment trial, and arguing
that such positions should affect our decisionmaking,
demonstrates the practical impediments to judicial resolution
of these issues.17 In addition to the constitutional limits of the
judicial power, the very structure of the judiciary reinforces
that impeachments and related interbranch information
disputes are not the business of the courts.
17
See, e.g., Letter from Douglas N. Letter, General Counsel, U.S.
House of Representatives, to Mark Langer, Clerk of the Court, U.S.
Court of Appeals for the D.C. Circuit (Jan. 23, 2020) (“[O]ne of
President Trump’s defenses in the impeachment is that the House
should have gone to court to obtain the information he withheld.”);
Letter from Mark R. Freeman, Department of Justice, to Mark
Langer, Clerk of the Court, U.S. Court of Appeals for the D.C.
Circuit (Jan. 28, 2020) (“The extensive, ongoing debate in the Senate
over what evidence the Senate should or should not consider in the
trial underscores the oddity of the Committee’s view.”).
45
* * *
The grand jury context does not eliminate the limits on the
judicial power essential to the Constitution’s separation of
powers. Because I conclude that the House lacks standing to
seek compulsory process against the executive branch in this
context, I would vacate the part of the district court’s order
directing DOJ to disclose the grand jury materials. On the
question of authorization, in light of changed circumstances, I
would remand to the district court to evaluate in the first
instance whether the Committee can demonstrate that it
continues to have a “particularized need” for these grand jury
materials “preliminarily to” impeachment proceedings. For the
foregoing reasons, I respectfully dissent.