The United States Law Week

Mueller Report Release Could Be Slowed By Historian’s Loss (1)

April 5, 2019, 6:27 PMUpdated: April 5, 2019, 11:25 PM

Historian Stuart McKeever can’t have access to grand jury evidence involving the 1957 indictment of an FBI agent, a federal appeals court ruled in a divided opinion that legal experts say could effectively make the public wait longer to see the Mueller report.

“There needs to be some kind of ongoing legislative inquiry—whether for impeachment or something else—in order to obtain the Mueller report given today’s D.C. Circuit decision,” said former federal prosecutor Harry Sandick of the April 5 decision that’s unrelated to the special counsel’s Russia investigation.

Absent such an inquiry, McKeever’s appellate loss—which limits a judge’s ability to release grand jury material—could pose hurdles to making Mueller’s full report public, raising the question whether the decision could have the effect of spurring such an inquiry against President Donald Trump.

“If the House Judiciary Committee set up an impeachment inquiry, I don’t think there’s any question that the court would have the inherent authority to release grand jury material,” said Michael M. Conway, who was counsel to the House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974.

Members of Congress have demanded the full report from Attorney General William Barr, who concluded that Trump didn’t obstruct justice although Mueller declined to come to a conclusion on the obstruction question, Barr said in a letter to lawmakers.

Mueller did not see it fit to charge conspiracy or coordination with Russian election interference efforts, Barr said.

Yet despite the mainly-Democratic clamoring for all of Mueller’s findings, House Judiciary Chairman Jerry Nadler of New York has stopped short of launching an official impeachment probe thus far.

The Justice Department did not immediately respond to a request for comment.

Barr has said he is working on determining what sensitive material needs to be redacted in the report as pressure mounts from Nadler, other members of Congress, and the public.

Book Research, Professor Disappearance

McKeever made the request while researching a book about the 1956 disappearance of Columbia University Professor Jesus de Galindez Suarez, and his possible assassination by agents of Dominican Republic dictator Rafael Trujillo. McKeever was interested in FBI Agent John Frank because he later worked for Trujillo’s regime, according to the court.

The district court in Washington said it had inherent authority to grant McKeever’s request, but it was too broad. The government responded that grant jury proceedings must be kept secret and limited to the exceptions to that rule in Federal Rule of Criminal Procedure 6(e).

The district court erred by assuming its inherent supervisory authority trumped the list of exception in Rule 6(e), Judge Douglas H. Ginsburg wrote for the majority. There simply is no exception for historically significant evidence, the court said. Judge Gregory G. Katsas joined the opinion.

There is, however, a circuit split on the issue, with the Second, Seventh, and Eleventh circuits saying there may be times, such as when grand jury evidence is historically significant, it may be released outside the bounds of Rule 6(e). But the Sixth and Eighth circuits adhere to the view courts can’t craft exceptions that aren’t already listed in the rule, the court said.

Yet the circuit opinion might not be the last word on the subject within D.C., Conway observed. He noted that McKeever could appeal to a full panel of the appeals court to try to overturn the three-judge panel’s decision.

Dissenting Judge Sri Srinivasan said that D.C. Circuit precedent allows district court disclosures beyond Rule 6(e)'s exceptions.

McKeever represented himself, with the assistance of Graham E. Phillips, Washington. The Justice Department represented the government.

The case is McKeever v. Barr, 2019 BL 121708, D.C. Cir., No. 17-5149, 4/5/19.

(Recasts lead, and adds comments from legal experts on potential impact of court decision.)

To contact the reporters on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com; Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; C. Reilly Larson at rlarson@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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