Grand jury material becomes key battle-line in Mueller report fight

Attorney General William BarrWilliam Pelham BarrInspector general testifies on FBI failures: Five takeaways Budowsky: Would John McCain back impeachment? Former Trump lawyer Michael Cohen asks judge to reduce sentence MORE dug in his heels Tuesday, resisting Democratic demands that he hand over special counsel Robert MuellerRobert (Bob) Swan MuellerTrump says he'll release financial records before election, knocks Dems' efforts House impeachment hearings: The witch hunt continues Speier says impeachment inquiry shows 'very strong case of bribery' by Trump MORE’s full report and increasing the odds that Democrats will issue a subpoena.

In a closely watched appearance before a House subcommittee, Barr stuck to his plan to release a redacted version of Mueller’s report publicly and to Congress “within a week,” despite growing calls from House Democrats that he hand over Mueller’s full report — absent redactions — immediately.


He also said he would not ask a federal court to allow him to release grand jury materials, which are subject to secrecy under Federal Rule of Criminal Procedure 6(e).

“The chairman of the Judiciary Committee is free to go to court if he feels one of those exceptions is applicable,” Barr said during a series of exchanges with Rep. Ed CaseEdward (Ed) CaseMORE (D-Hawaii). “My intention is not to ask for it at this stage.”

Rule 6(e) generally provides that grand jury proceedings be kept secret, with a few exceptions allowing a judge to grant a court order to release them.

“In case someone shows me a provision in 6(e) that permits its release, Congress doesn’t get 6(e),” Barr said.

A judge can disclose a grand jury matter to a government attorney for use in performing their duties, such as running an ongoing investigation, or to government personnel in order to enforce federal criminal laws.

A judge can also disclose grand jury information to federal, state or other officials when there is a threat from a hostile foreign power, terrorism or intelligence service in order to prevent or respond to the activities.

And judges can also order the disclosure of grand jury material that is “preliminarily to or in connection with a judicial proceeding,” which in some cases has allowed for grand jury materials to be shared with Congress.

In remarks to reporters following Barr’s testimony, House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerHouse passes bill that would give legal status to thousands of undocumented farmworkers Collins accusing Democrats of 'tearing down a world leader' GOP calls for minority hearing on impeachment, threatens procedural measures MORE (D-N.Y.) all but guaranteed he would issue a subpoena for Mueller’s full report as well as the underlying evidence once Barr produces the restricted report, unless the attorney general changes course.

“We have established that we’ve done everything we could to cooperate with the attorney general, to cooperate with the department, but he hasn’t reciprocated,” Nadler said. “We need this material to do our job.”


Barr’s public testimony, scheduled to discuss the Justice Department’s budget proposal, was dominated by questions about his handling of Mueller’s report following the conclusion of the 22-month special counsel probe just under three weeks ago.

It’s not clear how much of Mueller’s report will be redacted because of grand jury secrecy rules. The statute ostensibly covers witness testimony, votes by grand jurors and grand jury proceedings, but evidence uncovered during the investigation that was later presented to the grand jury could also be interpreted as falling under Rule 6(e).

“In general, the government takes a pretty robust view of that sort of thing,” said Jack Sharman, a white-collar defense attorney and former special counsel to Congress during the Whitewater investigation. “They don’t want you to know about the documents presented to the grand jury witnesses any more than they want you to see what the grand jury says.”  

Nadler has signaled he’s willing to go to court to fight for the release of grand jury material, saying Congress is entitled to it in his panel’s efforts to investigate President TrumpDonald John TrumpThe Hill's Morning Report - Sponsored by AdvaMed - House panel expected to approve impeachment articles Thursday Democrats worried by Jeremy Corbyn's UK rise amid anti-Semitism Warren, Buttigieg duke it out in sprint to 2020 MORE and his administration.

He and other Democrats have argued that Barr is straying from the norm by denying these materials, pointing to past precedents such as the Watergate investigation under the Nixon administration and the Whitewater probe during the Clinton administration, led by Kenneth Starr.

They argue that those two independent counsels sought to make public grand jury information by going to court, something they note Barr is refusing to do.

“Every other attorney general in his position has gone to court to request that the material be turned over in its unredacted entirety to Congress,” said Rep. Jamie RaskinJamin (Jamie) Ben RaskinDemocrats gear up for high-stakes Judiciary hearing Lawmakers to watch during Wednesday's impeachment hearing Pelosi faces tough choices on impeachment managers MORE (D-Md.). “So he’s completely rewritten the role of the attorney general here. He essentially wants to be judge, jury, executioner and Congress all bundled up into one.”

However, Republicans say Nadler is out of line, arguing he would need to launch an official impeachment inquiry in order to get his hands on the grand jury materials. They’ve also noted that Starr was operating under a different statute than Mueller, who had different disclosure requirements.

“Bill Barr is following that regulation to the letter of the regulation or the law, and now Jerry NadlerJerrold (Jerry) Lewis NadlerHouse passes bill that would give legal status to thousands of undocumented farmworkers Collins accusing Democrats of 'tearing down a world leader' GOP calls for minority hearing on impeachment, threatens procedural measures MORE and the Democrats don’t like the regulation. The hypocrisy is stunning,” Rep. John RatcliffeJohn Lee RatcliffeTrump, first lady take part in National Christmas Tree lighting Lawmakers to watch during Wednesday's impeachment hearing House Republicans on Judiciary strategize ahead of Wednesday's impeachment hearing MORE (R-Texas) told The Hill.

Barr is likely to face more questions about the Mueller investigation when he appears before a Senate Appropriations subcommittee Wednesday, his second day of Capitol Hill testimony this week.

Barr did signal Tuesday that he is willing to work with the House and Senate judiciary committees on releasing other restricted information from Mueller’s report to Congress after he unveils the public version, including classified national security information under “appropriate” safeguards, but he did not offer any commitments.

Barr also said the redactions made to the report would be color-coded by category and footnoted so that the public knows why the Justice Department decided to redact those portions.

He plans to redact four categories of information: grand jury material, information that could reveal intelligence sources and methods, details that could compromise ongoing investigations, and information impacting “peripheral” third parties.

“Within a week, I will be in a position to release the report to the public and then I will engage with the chairmen of the Judiciary committees about that report and any further requests that they have,” Barr told lawmakers.

Meanwhile, Nadler said Tuesday that Barr’s commitments were not enough and that he would subpoena for the report “very quickly” if Barr sends a heavily restricted version to Congress.

“Anything short of the entire report and underlying evidence would be inadequate,” Nadler said.