Can Congress access evidence uncovered by the special counsel?
© Greg Nash

As the various congressional investigations proceed alongside Special Counsel Robert Mueller’s investigation, the question arises whether Congress could ever access evidence uncovered by him and his team. The special counsel is not charged with providing a public accounting of his work. Indeed, the results of a criminal investigation are typically publicly revealed only if a prosecutor brings criminal charges and presents evidence in court to prove those charges.

If no such charges are brought here — which could happen for a variety of evidentiary, legal, or policy reasons — the public would nonetheless have an interest in the evidence uncovered during the investigation. Judicial precedent suggests a possible path for Congress to obtain access to that evidence at the conclusion of the special counsel’s investigation.

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There are a host of reasons that Mueller’s investigation may not result in criminal charges. As to foreign actors, non-criminal measures such as sanctions, covert actions, or diplomacy may ultimately be deemed the most effective way of responding to the interference in the presidential election.

 

As to any conduct by U.S. citizens that falls within the scope of the special counsel’s investigation, there is a spectrum of possibilities, including that no crime may have been committed (for example, if there is identifiable misconduct that does not meet all of the technical requirements of federal criminal statutes), revealing certain evidence of criminal conduct may undermine significant intelligence activities, or certain evidence may be inadmissible in court under evidentiary rules.

As to President Trump in particular, the Department of Justice’s Office of Legal Counsel, which provides controlling opinions on legal questions within the executive branch of the federal government, has long held the view that the indictment and criminal prosecution of a sitting president would unduly interfere with his ability to perform his constitutional duties and would thus violate the constitutional separation of power. The special counsel, who operates under a delegation from the U.S. deputy attorney general in his role as acting attorney general, is bound by this opinion.

For these various reasons, it would be imprudent to draw any conclusions from the special counsel’s decision not to bring any criminal charges if, in fact, no charges are brought. Regardless of whether any criminal cases are filed, there are significant policy and national security interests at stake for Congress to investigate. On an issue of such great public importance, Congress may seek access to the special counsel’s investigative files after the investigation has closed. Historically, the Justice Department has not provided to Congress investigative files concerning open investigations, even in response to subpoenas, for two principal reasons.

First, under Federal Rule of Criminal Procedure 6(e), Justice Department attorneys have a strict legal obligation to protect the confidentiality of matters occurring before the grand jury. Second, the attorneys have a broader duty to protect the integrity of ongoing investigations and to prevent congressional pressures from influencing the course of an investigation. Department participation in publicity about facts under investigation could also jeopardize any indictments that may be filed, possibly leading to dismissal.

With respect to closed cases, however, Justice Department officials have released to Congress materials that are not subject to Rule 6(e)’s confidentiality requirement. That requirement remains in place even after an investigation has closed, and none of the exceptions in the rule allows department attorneys to disclose grand jury material to a congressional committee.

Absent either an overriding statute that authorizes such a disclosure or a court order as discussed below, Rule 6(e) could effectively prohibit Congress from obtaining evidence gathered by the special counsel. Although courts have adopted different standards as to what Rule 6(e) protects, it can, if construed broadly by cautious prosecutors, encompass much of the evidence gathered during a criminal investigation.

Notwithstanding these general principles, the Office of the Independent Counsel (OIC), in connection with its investigation of President Clinton, provided to the House Judiciary Committee a report and documentary evidence relevant to impeachment, including grand jury material. In doing so, the OIC concluded that its statutory obligation to advise the Committee of any substantial and credible information that may constitute grounds for impeachment authorized the disclosure despite Rule 6(e)’s requirements. The Special Division of the U.S. Court of Appeals for the D.C. Circuit — which had appointed the Independent Counsel — agreed.

The special counsel has no such statutory mandate that overrides Rule 6(e), and, even if he did, its predicates might not be satisfied. Department regulations require the acting attorney general to notify the chairman and the ranking member of the judiciary committees of the House and Senate, where he overrules an action proposed by the special counsel, but any such notification must be “consistent with applicable law,” including Rule 6(e).

Several U.S. courts of appeals, however, have held that Rule 6(e) does not prohibit courts from exercising their inherent supervisory authority over grand jury proceedings and releasing grand jury materials where warranted. In 1974, the U.S. Court of Appeals for the D.C. Circuit, in Haldeman v. Sirica, approved the disclosure of a grand jury report and evidence to the House Judiciary Committee, which was then examining possible grounds for impeaching President Nixon.

Other courts have approved the release of grand jury materials to a judicial committee considering whether to recommend impeachment of a federal judge, a historian researching an accusation that a former federal official had been a communist spy, and researchers seeking information about an investigation into a newspaper for publishing military secrets during World War II. While some of these cases involved decades-old facts (significantly reducing the interest in grand jury secrecy), the cases also adopt a flexible approach that requires courts to consider a number of contextual factors, including an assessment of the purpose for which the materials are sought.

So long as the congressional and special counsel investigations are proceeding concurrently, it will be essential for them to communicate to ensure that the committees investigate effectively without impinging on the work of Mueller and his team. Once the special counsel’s investigation has concluded, however, the committees — considering the importance of the issues and the need for a full public accounting — may well be justified in seeking access to the special counsel’s investigative file. They would have some compelling precedent on their side.

Brent Wible is a counsel with Freshfields Bruckhaus Deringer LLP in Washington, D.C. He previously served as a federal prosecutor in New York and Washington, D.C. and as a special assistant to President Obama in the Office of the White House Counsel.


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