A federal appeals court ruled Friday that courts do not have an inherent authority to release grand jury information protected under a federal statute, a decision that could play a role in the release of information included in special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE’s report.
The panel of judges for the U.S. Court of Appeals for the D.C. Circuit was divided in its 2-1 decision in the case of a writer seeking to unseal grand jury records surrounding the 1956 disappearance of a Columbia University professor.
The author, Stuart McKeever, had argued that courts have the inherent power to release sealed grand jury records, as long as they remain in the courts’ possession.
But the court found in favor of the Department of Justice (DOJ), agreeing that the existing rules on when grand jury information can be made public are specific and that courts do not have the power to release it.
“Indeed, as the Government explains, a district court is not ordinarily privy to grand jury matters unless called upon to respond to a request to disclose grand jury matter,” Judge Douglas Ginsburg wrote in the court’s opinion.
But Judge Sri Srinivasan wrote in the dissenting opinion that the court’s previous ruling that grand jury information be shared with the House Judiciary Committee during Watergate allows for other exemptions to be made outside of the statute’s existing exemptions.
“Our decision thus settled that a district court retains discretion to release grand jury matter to a House Committee in the specific context of an impeachment inquiry,” Srinivasan wrote, arguing that decision opened the door to other kinds of exemptions.
Legal experts had pointed the decision as potentially playing a role in the release of Mueller’s report, which contains grand jury information protected under the federal statute.
A DOJ spokesperson said in a statement Thursday that each page of Mueller’s report was marked as potentially containing grand jury information. Attorney General William BarrBill BarrThe Hill's Morning Report - US warns Kremlin, weighs more troops to Europe Jan. 6 committee chair says panel spoke to William Barr William Barr's memoir set for release in early March MORE has said that the DOJ is working to redact that and other information from the report before making it public.
DOJ has not requested that the grand jury information be exempted from the statute, and observers noted that Friday’s ruling makes it all the less likely that Barr will make that demand.
Marty Lederman, a law professor at Georgetown University and a former deputy assistant attorney general, tweeted that the opinion "pretty much guarantees — at least in the near-term — that DOJ won't ask" a federal judge to release the grand jury information to Congress.
"But that was never a realistic prospect, anyway, in light of DOJ's current view that courts have no such inherent power," he continued. "Importantly, this *does not* mean that there should be major redactions of [grand jury] info from the Mueller report."
Democrats are calling for the report to be released in its entirety, saying they don’t trust the Justice Department to only redact the necessary information. The House Judiciary Committee earlier this week authorized a subpoena to request the full Mueller report.