Press Application for Access to Judicial Records Ancillary to Certain Grand Jury Proceedings Concerning Former Vice President Mike Pence ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE PRESS APPLICATION FOR
ACCESS TO JUDICIAL RECORDS
ANCILLARY TO CERTAIN GRAND
Misc. No. 23-35 (JEB)
JURY PROCEEDINGS CONCERNING
FORMER VICE PRESIDENT MIKE
PENCE
MEMORANDUM OPINION
The Special Counsel’s investigation into interference with the transfer of power
following the 2020 presidential election proceeds behind doors that remain closed to the public.
Recently, however, former Vice President Michael R. Pence nudged them ajar when he revealed
in a series of public statements that the grand jury had subpoenaed him, that he had initially
refused to testify, and that this Court had stepped in to referee the resulting constitutional
dispute. Seizing on these revelations, a set of news organizations has asked this Court to disclose
opinions, filings, and hearing transcripts related to Pence’s privilege claim. Although the
Government objects, the Court will grant the request in part, but with sufficient redactions to
preserve grand-jury secrecy.
I. Background
Special Counsel Jack Smith is conducting two investigations related to the 2020
presidential election and its aftermath. See In re New York Times Co., Misc. No. 22-100, 2023
WL 2185826, at *4 (D.D.C. Feb. 23, 2023). The one relevant here “concerns ‘whether any
person or entity unlawfully interfered with the transfer of power following the 2020 presidential
election or the certification of the Electoral College vote held on or about January 6, 2021.’” Id.
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(citation omitted); see Press Release, Dep’t of Justice, Appointment of Special Counsel (Nov. 18,
2022), https://perma.cc/G5K2-ZN7T. Despite the intense media attention, those not part of the
investigation can make only educated guesses about its progress and scope. See David A.
Graham, Don’t Take Your Eye Off Jack Smith, The Atlantic (Apr. 3, 2023),
https://perma.cc/YKN4-GB5Z (“Smith’s probe . . . has overseen an investigation with few
leaks.”).
A. Pence’s Public Statements
In a series of three public statements, Pence narrowed some of that guesswork. First, in
February 2023, he publicly announced that he had received a subpoena from the Special Counsel
to testify before a grand jury and that he intended to resist it. See Melissa Quinn & Jonah
Kaplan, Pence Confirms He’ll Resist Subpoena from Special Counsel in Trump Probes, CBS
News (Feb. 15, 2023), https://perma.cc/73FA-CHET. In an apparent reference to the
Constitution’s Speech or Debate Clause, he stated, “The Constitution of the United States
provides the Executive Branch cannot summon officials in the Legislative Branch into a court in
any other place.” Id.; see U.S. Const. Art. I, § 6 (“[F]or any Speech or Debate in either House,
[Senators and Representatives] shall not be questioned in any other Place.”). Pence added that
he sought to “defend[] the prerogatives that [he] had as president of the Senate to preside over
the joint session of Congress on January 6.” Quinn & Kaplan, supra at 2.
According to media reports, the Special Counsel then moved this Court to compel Pence
to testify in spite of such purported privilege. See Michael Kosnar & Rebecca Shabad, Special
Counsel Investigating Trump Asks Federal Judge to Compel Mike Pence to Give Jan. 6
Testimony, NBC News (Feb. 24, 2023), https://perma.cc/M5RE-XK24. On March 28, 2023,
Pence stepped in to offer his second public update. He appeared in an on-camera interview and
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explained that although there was “a limited amount that [he] c[ould] say about those
proceedings, but when [he] received a subpoena from the Justice Department,” he argued that “it
was not only unprecedented to ask a Vice President to come into court to testify about a
President with whom they served, but [also] . . . unconstitutional, believing that the
Constitution’s speech and debate protections applied to [him] when [he] was serving as president
of the Senate on January the 6th.” Luca Cacciatore, Mike Pence to Newsmax: Jan. 6 Probe’s
Subpoena ‘Unconstitutional’, Newsmax, at 0:20–0:51 (Mar. 28, 2023),
https://www.newsmax.com/newsmax-tv/mike-pence-subpoena-trump/2023/03/28/id/1114166/.
Having confirmed that he had indeed contested the subpoena on constitutional grounds, Pence
then added that “the Court accepted [his] argument” in part and that “the federal judge, really for
the first time in history recognized that the Constitution’s speech and debate provisions do apply
to the Vice President when one is serving as president of the Senate.” Id. at 0:52–0:57, 1:34–
1:46. He clarified that his team was still sorting out “what other testimony might be required”
and whether to appeal the ruling mandating such testimony. See id. at 1:47–1:50.
In a third statement a week later, Pence proclaimed through his spokesperson that he
“will not appeal the Judge’s ruling and will comply with the subpoena as required by law.”
Washington Desk, Pence Won’t Appeal Judge’s Ruling, Paving the Way for His Testimony in
Justice Probe, NPR, (Apr. 5, 2023), https://perma.cc/D3MX-JVMN. Pence nonetheless has not
confirmed that he did actually testify, and any reporting to the contrary remains unsubstantiated.
See Katelyn Polantz & Devan Cole, Former Vice President Pence Testifies to Federal Grand
Jury Investigating Donald Trump & January 6, CNN (Apr. 27, 2023), https://perma.cc/4PFT-
KBZQ (“A spokesman for special counsel Jack Smith’s office and a spokesman for Pence both
declined to comment on Thursday.”); Fin Gómez, Pence Appears for 7 Hours Before Grand Jury,
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CBS News (Apr. 28, 2023), https://perma.cc/4BU2-4RBJ (relying on anonymous sources to
report Pence “appeared for over seven hours before the grand jury”).
B. The Press’s Application
In between Pence’s detailed disclosures, a Press Coalition (comprising ABC News,
Associated Press, Bloomberg, Cable News Network, CBS News, Dow Jones & Co., the E.W.
Scripps Company, LA Times, National Public Radio, NBCUniversal, The New York Times, and
the Washington Post) moved to “access . . . certain judicial records ancillary to the grand jury
investigation(s) into . . . the January 6, 2021[,] certification of th[e] [2020] election’s results.”
ECF No. 1 (Press Application) at 1. The Press seeks “all judicial records pertaining to the
Government’s motion to compel [Pence] to comply with a subpoena that he received on or
around February 9, 2023, calling for his testimony before the grand jury.” Id.
Because the Chief Judge must “hear and determine all matters relating to proceedings
before the grand jury,” the Press’s Motion was assigned to this Court. See LCvR 40.7(b). After
the Court set briefing deadlines on the Press’s Application, see Minute Order of Apr. 5, 2023, the
Government moved to file its Opposition under seal and notified the public of that filing. See
ECF No. 7 (Notice of Filing). The Court granted the Government’s Motion to File Under Seal
with the caveat that it could later order the Government to file a redacted version of its
Opposition on the public docket. See Minute Order of Apr. 20, 2023. The Press, having seen
only the Notice of the Opposition, understandably has filed no Reply. Although that Opposition
was filed under seal, the Court may cite portions in this Opinion that deal exclusively with legal
positions and divulge no facts.
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II. Legal Framework
A. Grand-Jury Secrecy
In general, “the grand jury context presents an unusual setting where privacy and secrecy
are the norm.” In re Grand Subpoena, Judith Miller (Miller III), 438 F.3d 1141, 1150 (D.C. Cir.
2006) (quoting In re Sealed Case (Dow Jones II), 199 F.3d 522, 526 (D.C. Cir. 2000)).
Witnesses “enter the grand jury room alone . . . . No judge presides and none is present.” In re
Motions of Dow Jones & Co. (Dow Jones I), 142 F.3d 496, 498 (D.C. Cir. 1998). Access to
grand-jury materials turns on Federal Rule of Criminal Procedure 6(e)(2), which dictates that
“[o]ther than witnesses, each person present . . . is forbidden from disclosing ‘matters occurring
before the grand jury.’” Id. (quoting Fed. R. Crim. P. 6(e)(2), 6(e)(3)(A)(ii)); see also In re
Sealed Case No. 99-3091, 192 F.3d 995, 1002 (D.C. Cir. 1999). In this Circuit, the court, too,
lacks any “inherent authority” to release matters occurring before the grand jury. McKeever v.
Barr, 920 F.3d 842, 844, 850 (D.C. Cir. 2019). This arrangement “safeguards vital interests,”
including “(1) preserving the willingness and candor of witnesses called before the grand jury;
(2) not alerting the target of an investigation who might otherwise flee or interfere with the grand
jury; and (3) preserving the rights of a suspect who might later be exonerated.” Id. at 844 (citing
Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)).
B. Accessing Ancillary Proceedings
Every so often, including in the current controversy, the grand jury’s business calls for
“judicial proceedings relating to,” but “at arm’s length” from, that body, including resolving a
grand-jury witness’s “motion to . . . quash [a] subpoena” or her invocation “of a testimonial
privilege.” Dow Jones I, 142 F.3d at 498. Documents in such proceedings ancillary to the grand
jury’s work are not themselves subject to grand-jury secrecy but are governed by Rule 6(e)(6),
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which requires that “[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be
kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a
matter occurring before a grand jury.” (Emphasis added.) Hearings on these ancillary
proceedings adhere to a similar rule. See id. R. 6(e)(5) (“[T]he court must close any hearing to
the extent necessary to prevent disclosure of a matter occurring before a grand jury.”). Although
Rule 6(e)(6) displaces any First Amendment or common-law right of access to documents in
ancillary proceedings, see Dow Jones I, 142 F.3d at 500–04, the Rule allows for their release
once sealing them is no longer “necessary” to protect grand-jury secrets.
In assessing the extent of such necessity, the Circuit has explained that Rule 6(e)(6)’s
reference to “a matter occurring before a grand jury” protects “not only what has occurred and
what is occurring, but also what is likely to occur” before that body. Id. at 500. Rule 6(e)(6)
therefore protects information in ancillary documents that reveals “‘the identities of witnesses or
jurors, the substance of testimony’ as well as actual transcripts, ‘the strategy or direction of the
investigation, the deliberations or questions of jurors, and the like.’” Id. (quoting SEC v. Dresser
Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980)).
Although Rule 6(e)(6) “‘does not create a type of secrecy which is waived once public
disclosure occurs,’ . . . it is also true that ‘when information is sufficiently widely known[,] . . . it
has lost its character as Rule 6(e) material.’” Id. at 505 (quoting In re North, 16 F.3d 1234, 1245
(D.C. Cir. 1994)). The Rule’s secrecy requirements therefore yield “when there is no secrecy
left to protect.” In re Grand Jury Subpoena, Judith Miller (Miller IV), 493 F.3d 152, 154 (D.C.
Cir. 2007) (citation omitted). As the Government acknowledges, one of the ways information
loses its Rule 6(e) protection is when a grand-jury witness “intentionally publicize[s]” it. See
ECF No. 6 (Gov’t Opp.) at 14; see also Dow Jones I, 142 F.3d at 496–99, 505 (holding court
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could not deny request for ancillary documents on sole ground that disclosure would reveal
identity of subpoenaed witness where witness’s attorney had already “proclaimed from the
rooftops that his client had been subpoenaed”).
The D.C. Circuit illustrated these principles nearly two decades ago in publishing a
partially redacted decision affirming a contempt order against a grand-jury witness. See In re
Grand Jury Subpoena, Judith Miller (Miller I), 397 F.3d 964, 965 (D.C. Cir. 2005). It then
granted a press request to unseal the redacted portions of its decision once other grand-jury
witnesses publicly detailed admissions they had made to the grand jury that the court’s decision
had redacted. See Miller IV, 493 F.3d at 153–54 (citing televised interview and published
accounts entitled “What I Told the Grand Jury” and “My Role in the Plame Leak Probe”).
“Although not every public disclosure waives Rule 6(e) protections,” the court explained, “one
can safely assume that the ‘cat is out of the bag’ when a grand jury witness . . . discusses his role
on the CBS Evening News.” Id. at 154–55 (quoting In re North, 16 F.3d at 1245). In addition to
unsealing portions of its decision, the court also released segments of the Special Counsel’s ex
parte affidavits to the extent that they “discuss[ed] grand jury matters that ha[d] become widely
known” through public disclosures by “grand jury witnesses themselves.” Id. at 155.
C. Local Rule 6.1
This Court’s Local Criminal Rules set out a mechanism for releasing documents in
ancillary proceedings. Rule 6.1 provides that “[p]apers, orders and transcripts of hearings” in
proceedings ancillary to the grand jury “or portions thereof[] may be made public by the Court
on its own motion or on motion of any person upon a finding that continued secrecy is not
necessary to prevent disclosure of matters occurring before the grand jury.” (Emphasis added.)
Once such a finding has been made, the Circuit has instructed that “where the Rules authorize
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[courts] to do so, [courts] may — and should — release any information so long as it does not
reveal” material that Rule 6(e)(6) protects. In re Grand Jury Subpoena, No. 18-3071, Order at 1
(D.C. Cir. Apr. 23, 2019) (emphasis added). Prior to public release, the Chief Judge will also
“redact[] documents.” Dow Jones I, 142 F.3d at 501, 506 (describing Chief Judge’s release of
former President Clinton’s motion seeking contempt order for violations of grand-jury secrecy);
see, e.g., In re Grand Jury Subpoena No. 7409, No. 18-41, 2019 WL 2169265, at *3, *5 (D.D.C.
Apr. 1, 2019) (ordering release of redacted briefs and transcripts in contempt dispute ancillary to
grand-jury investigation into foreign-election interference); Order and Unsealed Records, Grand
Jury No. 18-41 (June 7, 2019), https://perma.cc/4K53-B3KL (displaying redacted filings,
transcript, and court opinion for public viewing on court website).
This Court’s predecessor recently applied these principles to two requests for documents
concerning the Special Counsel’s investigations into the former President. First, it rejected a
request for filings and transcripts concerning “Trump’s privilege challenge” in the same grand-
jury investigation implicated in the request at issue here. In re New York Times Co., 2023 WL
2185826, at *1–2. Judge Beryl Howell explained that any response to the request would
inevitably disclose grand-jury material that retained Rule 6(e)(6) protection because the only
public reporting on that material relied on unnamed sources rather than “the type of confirmation
by government attorneys, grand jury witnesses, or a privilege holder that the Circuit has found
sufficient to make secrecy no longer necessary.” Id. at *14. Less than a month later, and on the
same grounds, she declined another press request concerning the Special Counsel’s investigation
of Trump’s handling of classified documents. See In re Press App. for Access to Judicial
Records & Proceedings Ancillary to Certain Grand Jury Proceedings Concerning Donald J.
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Trump and the Trump Organization, Misc. No. 22-128, ECF No. 6, at 1–2, 4–5 (D.D.C. Mar. 11,
2023).
III. Analysis
In its current Application, the Press requests documents concerning only Pence’s
ancillary privilege dispute (which may reveal, but is not itself, a matter before the grand jury).
The Court first addresses whether and to what extent these ancillary documents must remain
sealed under Federal Rule 6(e)(6) to conceal any still-protected grand-jury material. It next
considers whether it should exercise its discretion under Local Rule 6.1 to release redacted
copies of such ancillary documents at this time in light of the Government’s sweeping opposition
to the Press’s request.
A. The Press’s Request and Rule 6(e)
The Press seeks to unseal, with any necessary redactions, those “records Pence himself
has publicly discussed.” ECF No. 1 (Mem. in Support of Press App.) at 2. It does so on the
ground that Pence has “publicly acknowledged” the facts underlying the privilege dispute. See
Press App. at 1 (citing Brittany Shepherd, Pence Says ‘Nothing To Hide’ from Grand Jury in
Trump Jan. 6 Probe, ABC News (Mar. 29, 2023), https://perma.cc/4F43-6QQV).
The Court agrees with the Press’s reasoning. As the Government recognizes, Pence’s
public statements disclose his constitutional challenge to the subpoena, this Court’s partial
rejection of that challenge, and his intent to testify before the grand jury. See Opp. at 18.
Collectively, those statements constitute exactly the kind of extensive disclosure by a “grand jury
witness[] . . . that the Circuit has found sufficient to make secrecy no longer necessary.” In re
New York Times Co., 2023 WL 2185826, at *14. “[O]ne can safely assume that the ‘cat is out
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of the bag’” after the feline (or the witness) has conducted a televised interview. Miller IV, 493
F.3d at 155 (quoting In re North, 16 F.3d at 1245).
The heart of what the Press asks for here, and what the Court plans to release, is the legal
discussion surrounding the dispute Pence has already revealed. That includes the analysis
contained in (1) the briefing in support of or in opposition to Pence’s position, (2) a transcript of
the hearing on the issue, and (3) this Court’s Opinion and Order resolving the dispute. See Mem.
at 2. (Although the Press also requests a “Government[] motion to compel Pence’s testimony,”
id., Pence’s disclosures about the grand jury’s subpoena reveal nothing about whether the
Government filed a motion to compel.) Having thus determined that those documents may be
disclosed in some form, the Court next explains precisely what portions should remain sealed
pursuant to Rules 6(e)(5) and 6(e)(6).
Recall that the Court must withhold not only “what has occurred and what is occurring,
but also what is likely to occur” before the grand jury. Dow Jones I, 142 F.3d at 500. As a
result, documents responsive to the Press’s request must be redacted to remove any references to
the parties’ or the Court’s understanding of what, if any, specific testimony the grand jury sought
from Pence or the factual or strategic basis for such subpoena — to the extent that his disclosures
do not already reveal them. Even legal arguments or analyses concerning the scope of the
Speech or Debate privilege that might be tailored to specific anticipated grand-jury testimony or
that rely on past testimony must be redacted to ensure that they do not implicitly divulge
protected information. Given that Pence has revealed the general nature of the grand jury’s
request as concerning at least in part his role “as president of the Senate to preside over the joint
session of Congress on January 6,” Quinn & Kaplan, supra at 2, however, discussions applying
the Speech or Debate privilege to that role may be released.
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The Government, for its part, argues that all documents relevant to Pence’s privilege
dispute “must be kept entirely under seal” because “information protected by Rule 6(e) is
inextricably intertwined with material that is no longer protected” and cannot be redacted out.
See Opp. at 15. That can occur where “matters occurring before the grand jury” are woven “so
tightly” into the ancillary proceeding that “‘redaction is simply not possible,’” Dow Jones I, 142
F.3d at 505 (quoting In re North, 16 F.3d at 1242), or where any necessary redactions would
render what remains “either unintelligible or misleading.” In re New York Times, 2023 WL
2185826, at *10. The Government warns that here, disclosure will inevitably reveal (a) the
existence of separate disputes arising out of the grand jury’s investigation, and (b) the specific
testimony the grand jury sought and may have obtained from Pence. See Opp. at 18–19. Neither
argument is availing.
As to the first, the Court’s review makes clear that appropriate redactions to the parties’
filings, the hearing transcript, and the Court’s Opinion on the Speech or Debate issue can
sufficiently excise discussions of any other procedural or legal disputes arising from this grand-
jury investigation.
Information about any specific testimony the grand jury may seek from Pence, see Opp.
at 20, can be similarly redacted. The Government admits that the witness has “generally
acknowledged that the dispute concerned his duties as President of the Senate on January 6,
2021,” but it emphasizes that he did not “provide any specifics about what he contended the
scope of those duties were, the extent to which he claimed the protection applies, or the acts he
asserted the Clause covers.” Id. The Court believes that it can segregate the legal analysis of the
privilege from any “facts produced from the investigation [that] are so integral to [such] analysis
that revealing the latter would also reveal the former.” In re New York Times, 2023 WL
11218586, at *13. For example, the Government’s claim that specifics “permeated the entirety” of
the hearing transcript leaves unexplained how general discussions of caselaw and hypotheticals
defining the scope of the privilege would reveal anything about what specific information the
grand jury requested. See Opp. at 21; see e.g., Hearing Trans. of Mar. 23, 2023, at 35, In re
Grand Jury Subpoena, Grand Jury No. _ (D.D.C. Mar. 27, 2023) (Pence attorney: “I will go back
to what the court says in Eastland. The privilege, where it applies, sweeps broadly, and it may
protect material that otherwise the government or a private actor in a civil suit might want to
have.”).
“[D]iscrete portions” of the documents the Press seeks can therefore “be redacted without
doing violence to their meaning.” In re Grand Jury Subpoena, Judith Miller (Miller II), 438 F.3d
1138, 1140 (D.C. Cir. 2006). The Press is not asking for subpoenas or transcripts of witness
testimony. It seeks only a set of filings related to a legal dispute concerning the scope of the
Constitution’s Speech or Debate Clause, the mixed outcome of which Pence has already
revealed. See Cacciatore, supra at 3 (Pence explaining that “the Court accepted [his] argument”
that “the [C]onstitution’s speech and debate protections applied to” him while holding that some
“testimony might be required”); Washington Desk, supra at 3 (describing Pence’s disclosure that
“the Judge’s ruling” required he “comply with the subpoena”). Even if the redactions
disproportionately reveal more of one component of the briefing, hearing, or the Court’s decision
than of others, that result will not “mislead[] as to the overall import of the Court’s opinion,”
Opp. at 21, as its bottom-line holding that Pence must comply with the subpoena in part is
already known.
The material protected by Rule 6(e) in the documents the Court releases today is no
“leaven in a loaf of bread” that “cannot be separated out.” In re North, 16 F.3d at 1242
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(releasing documents in their entirety due to scope of prior public disclosure but lamenting
inability to redact). On the contrary, it is crust that may be neatly pared away.
B. Local Rule 6.1 Considerations
Having established that redactions to these ancillary documents can preserve grand-jury
secrecy, the Court turns to whether it should release them at this time. Recall that in the district
court, this discretionary inquiry is rooted in Local Rule 6.1, which states that documents in
proceedings ancillary to the grand jury “or portions thereof, may be made public by the Court . . .
on motion of any person upon a finding that continued secrecy is not necessary to prevent
disclosure of matters occurring before the grand jury.” (Emphasis added.) Where a party
invokes the Local Rule to request materials ancillary to grand-jury proceedings, the district court
is to “duly consider the request” and “if it denies the request, offer some explanation.” Dow
Jones II, 199 F.3d at 523. In asking whether redacted documents should be released, courts
typically assess various discretionary considerations. See, e.g., Miller II, 438 F.3d at 1140 (“If
the public is to see our reasoning, it should also see what informed that reasoning.”); In re Grand
Jury Subpoena, No. 18-3071, Order at 2 (citing public interests in learning about “court’s
reasoning” and “government’s assertion of power”).
The Court concludes here that those discretionary considerations counsel in favor of
release. For one, disclosure “will permit the public” to “see (in part) ‘what informed [the]
reasoning’” behind the Court’s resolution of a novel constitutional dispute. See In re Grand Jury
Subpoena, No. 18-3071, Order at 2 (quoting Miller II, 438 F.3d at 1140) (citation omitted).
Pence’s invocation of the Speech or Debate Clause and this Court’s resolution of the ensuing
controversy carry far-reaching public implications. The Speech or Debate Clause, after all,
“reinforc[es] the separation of powers so deliberately established by the Founders,” United
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States v. Johnson, 383 U.S. 169, 178 (1966), a principle “essential to the preservation of liberty”
in our democracy. Mistretta v. United States, 488 U.S. 361, 380 (1989). Furthermore, as the
Press notes and as Pence’s comments reveal, no other court has applied the Clause to the Vice
President. See Mem. at 7 (quoting Pence’s statement that this is “the first time in history” the
Clause has been so applied); see also Michael Stern, How Much Can the Speech or Debate
Clause Protect Mike Pence?, Lawfare, https://perma.cc/57NV-FKV6 (Feb. 27, 2023) (identifying
“the novel questions presented by Pence’s case and the confusion in the lower courts about the
Speech or Debate Clause generally”). The Court therefore should “release any information” it
can about this significant constitutional dispute “so long as it does not reveal” material protected
by grand-jury secrecy. See In re Grand Jury Subpoena, No. 18-3071, Order at 1.
The Government rejoins that the Court should refrain from disclosure because the
investigation remains ongoing and is proceeding under intense media scrutiny. See Opp. at 16,
22–24. Neither ground changes the Court’s mind.
The Court certainly recognizes that where “the special counsel’s investigation is
ongoing,” the “need for maintaining grand jury secrecy” is “only heighten[ed].” Miller II, 438
F.3d at 1141. It further acknowledges that the disclosures have been made by a grand-jury
witness, not the Government, which has carefully adhered to grand-jury secrecy. See Opp. at 10
& n.5 (pointing out that Government “has not even publicly acknowledged the existence of the
grand jury’s investigation”); cf. In re North, 16 F.3d at 1245 (“[W]hen the media reports
information alleged to be grand jury material, ‘the government is obligated to stand silent’ and
not confirm the information, whether it is accurate or not.”) (quoting Barry v. United States, 740
F. Supp. 888, 891 (D.D.C. 1990)). In support of its appeal to discretionary withholding, the
Government emphasizes the sensitive nature of this particular investigation, invoking
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“compelling law enforcement and privacy interests in maintaining the confidentiality of an
ongoing, preindictment investigation into serious crimes.” Opp. at 23. The Government cites
concerns about “reveal[ing] the nature, direction, and scope of th[e] investigation” in a manner
that might “provide opportunities for potential targets” to tamper with witnesses or evidence. Id.It also expresses concern that any disclosures might “appear to confirm” media reporting about
“as-yet-unconfirmed witnesses, subjects, or targets,” which might in turn make witnesses
hesitant to cooperate or harm the reputation of unindicted persons. Id. at 24.
The Court’s release here, however, is precipitated not by uninformed “media requests
predicated on general leaks,” In re New York Times, 2023 WL 2185826, at *10, but by a grand-
jury witness’s detailed description of one facet of the proceedings. The Government’s concerns
must yield where the documents responsive to a request so precipitated, and once properly
redacted, offer no leads to other witnesses or evidence. A comparison to a case on which the
Government relies illustrates this distinction. This Court’s predecessor reasonably rejected the
Washington Post’s effort to obtain disclosure of “warrant materials issued in separate
investigations” merely “related to” a then-ongoing campaign-finance investigation. Matter of the
Application of WP Co. LLC, 201 F. Supp. 3d 109, 119 (D.D.C. 2016) (internal quotation marks
omitted). Judge Howell found that “the degree of media scrutiny” on the case made it more
likely that the public could guess “‘the names and identities of persons referenced’” in the
separate investigative documents the press sought. Id. at 128 (quoting record). Here, however,
the Press is not seeking information about separate investigations or warrants concerning
additional undisclosed parties; it seeks only documents concerning a single grand-jury witness’s
privilege claim. Responding to that narrow request with appropriate redactions may fill legal
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gaps about the Court’s reasoning, not factual gaps about how the grand jury’s investigation is
proceeding.
The Court is also cognizant that particular care is required where an investigation
proceeds under intense media scrutiny such that filling gaps in public reporting could
inadvertently reveal grand-jury material. This is such a case. See Morning Edition, Judge Is
Expected to Rule Vice President Pence Must Testify in Jan. 6 Attack Probe, NPR,
https://perma.cc/BML8-XZ7V (Mar. 29, 2023) (“Without knowing the exact wording of the
ruling, which remains sealed, . . . . What is the judge saying Pence must talk about? And what is
he saying he can refuse to talk about?”); see also Opp. at 16, 23–24; In re New York Times, 2023
WL 2185826, at *10. Courts in this district, however, have regularly released filings and
transcripts of proceedings ancillary to a grand jury’s investigation while the ongoing
investigation proceeded under close media scrutiny. In one recent example, “the government . . .
agree[d] that Local Criminal Rule 6.1 call[ed] for the release of” the parties’ “redacted briefs and
transcripts” from a contempt proceeding against a corporation subpoenaed by the highly
publicized and then-ongoing grand-jury investigation into foreign interference with the 2016
presidential election. In re Grand Jury Subpoena No. 7409, 2019 WL 2169265, at *4; see Isaac
Chotiner, How the Times Reported the F.B.I. Counterintelligence Investigation into President
Trump: An Interview with the Journalist Adam Goldman, The New Yorker (Jan. 12, 2019),
https://perma.cc/GJ7G-XA6S (describing media attention on Special Counsel Mueller’s
investigation). Indeed, it is typically in response to inquiries from the media that such material is
released. Amid a grand jury’s investigation into “Monica Lewinsky and [then-]President
Clinton,” during which “the press ha[d]” for months “staked out the courthouse, photographing
and attempting to intercept anyone who[] . . . might shed light on the grand jury’s progress,” the
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D.C. Circuit permitted the Chief Judge to release redacted hearing transcripts “consistent with
the limits of Rule 6(e)(6)” and the Court’s Local Rules. Dow Jones I, 142 F.3d at 498, 506.
Nearly two decades later, the Circuit issued a lengthy, minimally redacted opinion in another
high-profile grand-jury-related appeal, this one concerning a contempt order issued against a set
of reporters who refused to comply with a grand jury’s subpoena investigating reporting on the
Iraq War. See Miller I, 397 F.3d at 965 (describing grand-jury investigation as ongoing),
reissued, 438 F.3d 1141 (D.C. Cir. 2006). That redacted opinion previewed the information the
grand jury sought, canvassed the parties’ legal arguments, and detailed the court’s reasoning.
See id. at 967, 976.
Given the Press’s narrow request and this historical context, the Court’s proposed
approach is sufficiently conservative to account for the Government’s concerns about the
ongoing investigation and the media scrutiny surrounding it.
* * *
Local “Rule 6.1 means what it says in providing a limited right of access with respect to
grand jury ancillary proceedings in which continued secrecy is not necessary to prevent
disclosure of matters before the grand jury.” Dow Jones II, 199 F.3d at 527. The Court has
therefore made redactions to the briefs, hearing transcript, and its Opinion and Order “after
necessary consultation with the government . . . to redact text that discloses a ‘matter occurring
before the grand jury,’ while providing public access to the applicable law and legal analysis.”
In re New York Times, 2023 WL 2185826, at *8; see also Miller IV, 493 F.3d at 155 (rejecting
“Special Counsel’s recommendations as to precisely which redacted material we can release” as
“too narrow”). The redacted documents will be “published on the Court’s website for the public
to view.” In re New York Times, 2023 WL 2185826, at *9; see Grand Jury, U.S. District Court
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for D.C., https://www.dcd.uscourts.gov/unsealed-orders-opinions-documents/Grand%20Jury
(last visited May 24, 2023). That publication will occur on June 13, 2023, unless the
Government appeals this decision before that date.
In so acting, the Court reveals only those matters before the grand jury that Pence has
“virtually proclaimed from the rooftops.” Dow Jones I, 142 F.3d at 505. All other 6(e) material
for now remains tucked safely behind the grand jury’s closed doors.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part the Press’s
Application. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: June 9, 2023
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