Barr’s Redaction Process, cont’d

Attorney General William Barr testified at length last week, in the House and the Senate, about his ongoing process of redacting the Mueller Report in anticipation of sharing it with Congress and the public this Thursday.  There was nothing especially new or groundbreaking in those parts of his testimony.  Barr did, however, say one thing about redactions (and the Ken Starr Report) that wasn’t right, and two other things that are worth addressing as DOJ finalizes its redactions.  (I discussed most of what follows at greater length in my April 6 post.)

1.  Barr testified that he’s “color-coding” the redactions to indicate the basis for each of them.  When it comes to information that’s redacted because it allegedly reveals “a matter occurring before the grand jury”–something a government lawyer generally may not disclose, per Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure–such color-coding might create something of a problem if Barr adopts too broad a view of what counts as “matter[s] occurring before the grand jury.”

As I explained in my earlier post, all that Rule 6(e) prohibits is the disclosure of information that “would reveal something about the grand jury’s identity, investigation, or deliberation.”  Labow v. DOJ, 831 F.3d 523, 529 (D.C. Cir. 2016); accord Bartko v. DOJ, 898 F.3d 51, 73 (D.C. Cir. 2018)Accordingly, a government attorney may, for example, disclose a document subpoenaed by a grand jury, or describe or cite to such a document, as long as he or she does so in a manner that doesn’t reveal that a grand jury subpoenaed or considered that document.  And it’s quite possible that most of the evidence discussed in the Mueller report can be disclosed — or can at a minimum be cited as support for Mueller’s findings — without revealing whether a grand jury subpoenaed or considered it.  And where that’s the case, Rule 6(e) does not require a redaction.

If Barr mistakenly redacts such information and also identifies it (by, e.g., color-coding) as “Rule 6(e) material,” he would then be effectively acknowledging something that otherwise wouldn’t have been apparent, namely, that the grand jury considered the redacted information.  And then, if and when that information is unredacted–e.g., if a FOIA court concludes that Barr should never have redacted it in the first instance because it wouldn’t have revealed anything about the grand jury’s identity, investigations, or deliberations–its disclosure will then cause the harms that Rule 6(e) is designed to prevent, in a way it would not have done if Barr hadn’t mistakenly redacted it in the first instance.  See Labow, 831 F.3d at 530 (“Of course, if the documents are now belatedly released, it might be apparent that they had been subpoenaed by a grand jury given that the potential connection with a grand jury is now known. That fact, however, should not bar disclosure.”)

Barr therefore should not err on the side of assuming Rule 6(e)’s application in cases where it doesn’t clearly apply.  He should, in particular, be very careful not to redact information from the Mueller report merely because it refers to documents or testimony that the grand jury considered (or subpoenaed), in circumstances (e.g., citations in support of Mueller’s findings) where such grand jury consideration would not be apparent from the reference in the report itself.

2.  Barr testified that with respect to information he redacts from the public version of the report, he’d be open to sharing such information with particular congressional committees, in a confidential setting, if the committees can identify a way to do so that would be lawful.

DOJ can lawfully share all of the redactions other than Rule 6(e) grand jury matters with congressional committees under conditions that will help prevent public dissemination–indeed, that’s the sort of thing the executive branch does quite routinely, and that it presumably must do when DOJ/FBI soon brief the intelligence committees on the counterintelligence aspects of Mueller’s investigation.

And as for Rule 6(e) redactions, DOJ can share such information with at least the members of certain congressional committees, pursuant to one of the exceptions in Rule 6(e) itself.  As I wrote earlier:

The second sentence of Rule 6(e)(3)(D) — an exception Congress added in 2004 — provides that “[a]n attorney for the government may … disclose any grand-jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.”

As far as I know there are no judicial decisions discussing who counts as an “appropriate” federal official under this exception.  Based upon its plain words, however, the exception would appear to comfortably cover the members of the congressional intelligence committees, at a minimum (as well as the Senate and House leadership who are part of the so-called “Gang of Eight”), whose functions certainly include evaluating how the U.S. should “prevent[] or respond[] to” Russia’s “grave hostile threats.”  It might also cover, e.g., the members of the judiciary and foreign affairs committees, assuming that they, too, are working to prevent or respond to the Russian threats. …

If this reading is correct, then Barr can include “matter[s] occurring before the grand jury” in the version of the Mueller report he conveys to some congressional committees, even if (perhaps) not to the rest of Congress.  If he does so, however, the members of those committees would not be free to disclose the “matter[s] occurring before the grand jury” to the public, because Rule 6 expressly provides that “[a]ny official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”

3.  Senator Leahy asked Barr to explain why Rule 6(e) was such an obstacle in light of the fact that Independent Counsel Ken Starr shared with Congress his report about Monica Lewinsky–which was, of course, chock-full of information specifically identified as grand jury matters.  Barr responded to Leahy that the Independent Counsel statute (the Ethics in Government Act) itself authorized such disclosure, i.e., that it created an exception to Rule 6(e).

That’s incorrect.  To be sure, Starr himself thought that a statutory disclosure obligation imposed upon the Independent Counsel under 28 U.S.C. §595(c) (“An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.”) superseded the prohibition of Rule 6(e) (see note 18 of his report).  The Special Division, however (Judges Sentelle, Butzner and Fay) had already specifically held otherwise with respect to a cognate “shall” requirement of section 595 (“An independent counsel appointed under this chapter shall submit to the Congress annually a report on the activities of the independent counsel, including a description of the progress of any investigation or prosecution conducted by the independent counsel.”).  See In re North, 16 F.3d 1234, 1243-44 (D.C. Cir. (Spec. Div.) 1994).  Accordingly, when Starr petitioned the Special Division to authorize him to share his report with Congress, the Special Division, per Judge Sentelle, granted that application on the basis of another exception in Rule 6(e) itself, which affords a court the power to authorize disclosure of information revealing grand-jury matters “preliminarily to or in connection with a judicial proceeding.”  (This is now Rule 6(e)(3)(E)(i)); back in 1998 it was Rule 6(e)(3)(C)(i).)  Apparently the “judicial proceeding” Judge Sentelle had in mind was the House’s potential consideration of articles of impeachment against President Clinton, even though the House had not yet even authorized an investigation concerning possible impeachment.

As I wrote in my earlier post, it’s not clear to me that Judges Sentelle, et al. were right to authorize Starr to disclose his report.  The Supreme Court had already held, in United States v. Baggot, 463 U.S. 476, 480 (1983), that the proceeding in question must be “pending or anticipated” and that it’s “not enough to show that some [proceeding] may emerge from the matter in which the material is to be used, or even that [a proceeding] is factually likely to emerge” (emphasis added).

Be that as it may, however, the example of the Starr Report cannot be distinguished away as easily as Attorney General Barr suggested in his testimony last week.  If Barr insists that the “judicial proceeding” exception is inapplicable here, it would mean that–contra Judges Sentelle, Butzner and Fay–it was also unavailable to Ken Starr, and thus it was unlawful for Starr to submit his report to Congress.  [UPDATE/CLARIFICATION:  In a tweet, Mike Stern emphasizes that the Special Division in In re North did not deal specifically with subsection 595 (c).  There’d have been no apparent basis, however, for thinking that one of the requirements of section 595 superseded application of Rule 6(e) whereas the other didn’t–which explains why the Special Division invoked the Rule 6(e) exception for “judicial proceedings.”  Indeed, subsection 595(c) expressly provided that “Nothing in this chapter or section 49 of this title shall prevent the Congress or either House thereof from obtaining information in the course of an impeachment proceeding,” but conspicuously contained no similar carve-out for Rule 6(e).] 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).