Oral Argument Summary: McKeever v. Sessions

On Sept. 21, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in McKeever v. Sessions. Judge Douglas Ginsburg, Judge Sri Srinivasan, and Judge Gregory Katsas reviewed the D.C. District Court’s denial of Stuart McKeever’s petition for the release of records of a grand jury investigation into the 1956 disappearance of Columbia University professor Jesus Galindez.

The case concerns the court’s power to release material protected under grand jury secrecy, and has interesting implications for efforts by Benjamin Wittes, Jack Goldsmith, and Stephen Bates to unseal the impeachment “roadmap” prepared by Watergate Special Prosecutor Leon Jaworski—as well as the possible release of any report prepared by Special Counsel Robert Mueller. If the appeals court decides that district courts do not have inherent authority to disclose grand jury materials, it could become more difficult for Mueller to make public information related to the Russia investigation that he obtains through a grand jury. A recording of the oral argument is available here.

On consideration in this appeal are three questions:

1. Whether Rule 6(e) of the Federal Rules of Criminal Procedure, which governs grand jury proceedings, applies in cases where grand jury materials are possessed by a court.
2. If so, whether Rule 6(e), which prohibits disclosure of any “matter occurring before the grand jury” by selected individuals, presents an exhaustive list of exceptions to the rule of grand jury secrecy, or whether a district court has the inherent authority to disclose grand jury materials in situations outside those exceptions.
3. If the Rule 6(e) exceptions are not exhaustive, in which instances it is appropriate for district courts to exercise their inherent authority to release such materials.

Graham Phillips, the court-appointed amicus curiae arguing on behalf of the petitioner, has barely begun his argument before Katsas interjects. The judge wants to know whether the petition is redressable by the court, noting that the grand jury records are controlled by archivists at the National Archives, rather than the attorney general—so therefore the petitioner’s harm may not be traceable to the respondent. Phillips points to Carlson v. United States, a decision by the U.S. Court of Appeals for the Seventh Circuit, to argue that a district court can order grand jury records to be released as records of the courts, notwithstanding the fact that they are in the custody of archivists.

Phillips summarizes his three main points: First, the district court itself is not bound by the obligation of secrecy imposed by Rule 6(e); second, that the Advisory Committee on Criminal Rules has concluded that district courts may properly invoke their inherent authority to disclose grand jury records; and finally, that every court that has considered the issue has concluded that district courts have the inherent authority to make these types of disclosures.

Srinivasan challenges Phillips’ third contention, suggesting that United States v. McDougal, a decision by the U.S. Court of Appeals for the Eighth Circuit, states that disclosure must fall within the auspices of the Rule 6(e) exceptions. Phillips responds by asserting that the McDougal court did not consider the particular issues at question in the present case. Rather, McDougal considered court records of proceedings ancillary to grand jury proceedings, as opposed to McKeever, which directly concerns grand jury records.

Srinivasan then pivots to Phillips’ textual argument. Looking to the text of Rule 6(e)(1), which states that “an attorney of the government” will retain control of grand jury records “unless the court orders otherwise,” Srinivasan suggests that there is no real distinction between an attorney for the government and the court, because any petitioner seeking disclosure of the documents would have to get the court to issue an order to the attorney for the government—blurring any practical distinction between the two. This matters because, if there is no distinction between the court and the government’s attorney for purposes of Rule 6(e), the court would be bound by the rule.

Phillips responds by arguing that, in some instances, records are within the possession of the court itself, and therefore a real distinction exists between the court and an attorney for the government, upon whom Rule 6(e) restrictions apply. Srinivasan then asks if Phillips can provide an example of any of those instances. Phillips says that such instances are rare, but argues that this is a reason for the court to feel comfortable adopting the position that a district court can disclose records outside the exceptions in Rule 6(e) without making the rule meaningless. While there is often no practical difference between the court and the government in these circumstances, he says, he does not agree that there is no legal difference.

Srinivasan notes that in this case, the court does not have the records in question—they remain with the National Archives. Phillips argues that the records are court documents, so the court need only request them from the archives in order to possess and then release them.

Katsas retorts that this would be no limiting principle at all, because the court could order the records transferred to the court, thus escaping the restriction of Rule 6(e) and replacing it with a test created by the court. Phillips pushes back, arguing that his theory would only provide district courts with the discretion to disclose records when the rule shows no sign of having considered the nature of the disclosure. Katsas appears unconvinced, suggesting that such a rule would either allow complete circumventions of the exceptions or would lead to the anomalous result in which a court’s decision to disclose records was based on whether the theory of disclosure was sufficiently novel. Phillips points out that there would remain a strong presumption of nondisclosure, so disclosure would only be possible in rare circumstances.

Katsas then turns to Phillips’s specific theory of disclosure—that the records in question in this case should be disclosed because of their historic significance. He observes that before Rule 6(e) was written in 1946, federal common law had never recognized historic significance among the narrow exceptions to grand jury secrecy. Phillips says that there need not have been a longstanding practice of disclosures of this sort for it to be a permissible exercise of the court’s power. In response, Katsas posits that the rule was intended to be preservative rather than transformational, and that Phillips’s request seems to be one that neither the text of the rule nor its background tradition had in mind.

Phillips says that his request actually is consistent with the judicial tradition of disclosing records if doing so is in the public interest—which predates Rule 6(e)—although he admits that tradition occurs in a non-grand jury context. Srinivasan reenters the discussion by reframing Phillips’s interpretation of relevant “pre-rule” case law. Before the establishment of Rule 6(e), the historic significance justification was used outside the grand jury context—but in the grand jury context, the principal pre-rule example of disclosure discretion does not rest on historical significance. Phillips agrees with Srinivasan, while reasserting his point that district courts maintain inherent authority over judicial records.

Katsas again challenges what he characterizes as Phillips’s “judicial records” theory. He says that designating records as judicial records triggers a common law right of access, which does not describe the treatment of grand jury records. Phillips attempts to refute that characterization by citing pre-sentencing reports, which are outside the grand jury context but have a presumption of secrecy rather than access.

The court and Phillips then engage in back-and-forth about the differences in the rationale of the petitioner and that of the Seventh Circuit in Carlson. While each line of reasoning would allow disclosure, Srinivasan says, Phillips’s theory is that disclosure is permitted because the district court possesses the records and is not itself bound by Rule 6(e), whereas according to Carlson, the exceptions to Rule 6(e) are not exclusive. (Historical significance might be such an exception, for example.) Srinivasan views Carlson as standing for the proposition that Rule 6(e) applies to instances in which a district court holds the documents. He adds that because there are cases that suggest that all disclosures of grand jury records are governed by Rule 6(e), the judicial records theory might be less successful than the logic of the court in Carlson, which held that courts are bound by Rule 6 in the context of grand jury proceedings but that its exceptions are not exhaustive.

Phillips attempts to refute this point by arguing that case law could—but does not—indicate that Rule 6(e) expressly covers district courts when they are in possession of records. Srinivasan responds by suggesting that the Seventh Circuit in Carlson considered itself bound by Rule 6(e). If the court adopted the logic of Carlson, Srinivasan says, the appellant would still win, but the judicial records theory presents more of an obstacle. Phillips appears to concede the point.

Seeking to wrap up his argument, Phillips seeks to demonstrate to the court that the rule he proposes it adopt is a narrow one. Katsas expresses concern that operating outside the scope of Rule 6(e) would in fact require the court to apply an unbounded balancing test. Phillips, in response, points to other jurisdictions, and says that such an approach to disclosures has not led a subversion of grand jury secrecy. He adds that, if necessary, the subject could be addressed through rulemaking, so the rule the court adopts need not be permanent. Phillips closes his argument by noting that the Advisory Committee considered amending Rule 6(e) but decided such action wasn’t necessary because courts were reasonably exercising their inherent authority.

Arguing for the government is Brad Hinshelwood, whom Katsas quickly questions on the redressability issue. They engage in a back-and-forth about whether the Department of Justice or the National Archives holds the records, and Hinshelwood acknowledges that the department retains legal control. Katsas suggests adding the National Archives as a party to the case to resolve any remaining redressability issues, and Hinshelwood says he thinks that would be possible.

Hinshelwood then makes his textual argument. He argues that it is clear from Rule 6(e)’s text and structure, and from Supreme Court and D.C. Circuit precedent, that the exceptions delineated in Rule 6(e) lay out the only circumstances in which a district court may disclose grand jury materials.

Srinivasan jumps in, contrasting the government’s textual position in this case with the one it took in Haldeman v. Sirica, a case decided by the D.C. Circuit. Hinshelwood posits that the government in Haldeman adopted the two theories, one of which stated that the grand jury proceedings at issue fell within the enumerated exceptions to Rule 6(e). Srinivasan presses him by asserting that the alternative theory was in fact the government’s primary argument. Hinshelwood replies that that theory preceded congressional action and subsequent D.C. Circuit and Supreme Court decisions affecting interpretation of Rule 6.

If the court understood Haldeman as standing for the proposition that the only exceptions to Rule 6(e) are listed in the rule, Srinivasan asks, would those later cases be binding? Hinshelwood responds by continuing to try to minimize the court’s reliance on the case. Any doubt about whether the exceptions are exhaustive following Haldeman has since been removed, he says, adding that Haldeman contains no reasoning applicable to the present case.

Srinivasan pushes back on that contention. He points out that the Haldeman court found that Rule 6(e) did not bar the disclosure at issue for the reasons set out by the district court. Hinshelwood suggests that that language is not helpful in the present case: district’s offered alternative reasons for its decision, one of which was that the proceedings fell into one of the Rule’s enumerated exceptions and the other about the inherent authority of the court. Hinshelwood concludes discussion of Haldeman by repeating his contention that any doubt about the court’s inherent authority resulting from that case should have since been resolved, and shifts once again back to his textual argument.

Next, Srinivasan poses a hypothetical. Does the appellee’s interpretation of the rule preclude disclosure of grand jury documents where the proceedings occurred long ago and there is no cognizable reason not to release the documents?

Yes, Hinshelwood replies. He adds that it is not a district court’s position to make the determination that there could be no cognizable interest in withholding documents. One could imagine a robust policy debate about when grand jury records should be released.

Srinivasan then notes that, in 2011, the Advisory Committee on Rules of Criminal Procedure adopted the position that district courts have the inherent authority to disclosure grand jury records. The committee declined to accept a Department of Justice proposal related to a proposed amendment to Rule 6(e), reasoning that the courts were exercising their inherent authority responsibly.

Hinshelwood says that there may have been other reasons why the committee declined the department’s proposal, and notes that in the time the present case has been pending, at least three others cases have been filed seeking disclosure under the inherent authority theory. He adds the committee’s view on inherent authority is not relevant, because it is the rule itself that governs. Hinshelwood then argues that the positions of members of the advisory committee on issues of inherent authority do not deserve any weight, since the committee is one part of a rulemaking process that also involves Congress and the Supreme Court, both of which view the Rule 6(e) exceptions as exclusive.

Ginsburg then asks how many of the petitions filed during pendency of this case also invoked a historical justification for disclosure, and if they postdate Carlson. Hinshelwood believes that all the petitions invoke a historical justification and that three postdate Carlson, while the fourth was filed before but in close proximity to that decision.

Katsas then asks what would be so horrible about trusting district courts’ discretion in this kind of case, especially if the court builds into the test a strong presumption against disclosure. At some point, he asks, isn’t it silly to worry about records that implicate things about people who are long dead? Hinshelwood responds that the Department of Justice agrees with the notion that at some point, grand jury records should become public. But he argues that this does not change the fact that district courts do not have the inherent authority to disclosure the documents.

Katsas asks if Hinshelwood is putting all his eggs in the textual argument basket regarding the exclusivity of Rule 6(e) exceptions. He suggests that he is not: Aside from courts lacking the inherent authority to make these disclosures, from a policy perspective it is better that Congress or the Supreme Court set guidelines on conditions for disclosure rather than allowing decisions to occur in district courts on an ad hoc basis, especially since, Hinshelwood suggests, one could imagine debate about whether a policy of disclosure in historic significance cases could affect the candidness of grand jury witnesses.

Srinivasan goes back to the Department of Justice’s 2011 proposal related to the proposed amendment of Rule 6(e). How did the proposal affect the district court’s discretion to disclose? That proposal, Hinshelwood explains, suggested a process whereby archivists would take the first cut at determining which records were apt for disclosure; district courts would get limited discretion to make disclosure determinations after 30 years; and after 75 years, the documents would actually be disclosed. Srinivasan points out that that would still allow considerable discretion by the district courts, but Hinshelwood points out that that would be taking into account the considered policy positions of key stakeholders. That, he says, is what should happen here before records are disclosed.

Srinivasan and Hinshelwood then consider the proper interpretation of Supreme Court cases related to grand jury records disclosure. Srinivasan asks Hinshelwood which Supreme Court cases he interprets to foreclose exceptions outside the rule. Hinshelwood cites a number of cases, including Pittsburgh Plate Glass v. U.S.; U.S. v. Baggot and Illinois v. Abbott & Assocs, Inc. But Srinivasan distinguishes those cases—the question currently before this court never came up, he says, as in each of those cases, there was language in Rule 6(e) relevant to the matter at hand. Hinshelwood responds that the issue should be litigated within the confines of the rule precisely because of the principle that exceptions should be construed narrowly and only in cases of particularized need.

Hinshelwood then pivots to the history of Rule 6(e). He argues that there is nothing in the history of the rule that suggests Congress intended to change this background principle of grand jury secrecy when it codified that secrecy, with some exceptions, in 1946. Subsequent amendments have made that clear.

Katsas chimes in to ask about the judicial records theory. What should we make of the argument that Rule 6(e) imposes an obligation of secrecy on specific parties, he asks, but the district court is not one of them? Hinshelwood replies that that is because the district court isn’t privy to grand jury matters unless and until a petition is filed or ancillary proceedings occur, at which point other provisions of Rule 6(e) govern the court’s disposition of the materials.

Hinshelwood then seizes the opportunity to make a broader point about the operation of the rule: He says that a grand jury’s independence ensures that the district court is reactive, rather than an independent player. Furthermore, he adds, it does not make sense to think in terms of who controls the records, because the rule is designed to cover information regardless of where it is held.

Srinivasan goes back to Hinshelwood’s earlier contention that the opinion of the advisory committee is of limited importance in answering the question of courts’ inherent authority to disclose documents. He points to U.S. v. Cells Engineering, in which the Supreme Court characterized the advisory committee’s notes as suggesting a certain interpretation of Rule 6(e). He asks if the court can bring that to bear on the advisory committee’s actions with respect to the 2011 proposal.

No, Hinshelwood says. Because the advisory committee notes cited by the court in Cells Engineering were notes on an enacted rule, they may deserve some weight. But he distinguishes the notes from the 2011 proposal, arguing that since that proposal was never enacted they do not merit much weight. If anything, he adds, advisory committee notes we have emphasize the norm of nondisclosure.

Srinivasan then shifts back to the alternative rationales offered by the court in Haldeman. One was inherent authority; is the other, he asks Hinshelwood, that the rule itself covers the disclosure because the disclosure made to the House Judiciary Committee was preliminary to a judicial proceeding? That is correct, Hinshelwood replies.

Srinivasan asks where the district court adopted that rationale in Haldeman. Hinshelwood cites bits and pieces of the court’s opinion, but acknowledges the opinion is difficult to parse. Nonetheless, he adds, there is no rationale in the opinion applicable to McKeever.

Ginsburg asks, in Haldeman, didn’t the government clearly say that its position didn’t depend on the nature of the proceedings in Congress? Hinshelwood cites the dissenting opinion of Judge George MacKinnon, but Srinivasan cuts him off—what we care about, Srinivasan says, is the majority’s opinion as reflected in the district court’s ruling. We must get into the weeds of District Judge John Sirica’s opinion, Srinivasan says, to truly understand what the Haldeman court is doing. Doesn’t that opinion, by citing In re Biaggi, suggest that a court can authorize disclosure even when they are unrelated to judicial proceedings? Hinshelwood responds that Biaggi concerned grand jury information that had already been made public, and therefore secrecy was already waived.

Srinivasan interjects: Isn’t that the hypothetical I started out the entire argument with—that disclosure is warranted when everyone agrees it is appropriate? Not quite, Hinshelwood responds. Even if you think that case stands for the proposition that there are narrow situations in which discretion exists, he says, what is being sought here is fundamentally different.

Srinivasan seizes on the point. Once there is a narrow sliver outside the rule, he says, then the rule is not doing all the work, and district courts have authority to go outside the rule. Doesn’t that put your argument in a different place? Hinshelwood replies that the appellee has advanced both arguments, and that if courts can go outside the rule—which the government doesn’t agree they can—disclosure still would not be appropriate in this case.

Katsas joins in. If we go outside the rule, he asks, what governing principle apart from Rule 6(e) would result in non-disclosure? The question is whether the court’s inherent power extends to these kinds of judgments, Hinshelwood replies. He adds that neither historical practice nor the nature of inherent power itself would enable this type of disclosure. Katsas clarifies his point, saying that the goal of a court’s inherent authority is to facilitate adjudication of cases.

Hinshelwood delves further into the purpose of inherent authority. Citing U.S. v. Williams, he argues that inherent authority exists to improve the truth-finding process at trial or to prevent parties from violating rules outside the context of the courtroom or trial itself. A policy judgment regarding what social purposes justify disclosure grand jury material is outside the scope of that power.

Srinivasan asks what interests would be served by not allowing disclosure. Hinshelwood says that grand jury witnesses might be reluctant to be as candid in the future if they know their testimony could be released. But Srinivasan pushes for more information on the government’s interest in this particular case, suggesting that the government can “still win” even if it does not think there is an interest standing in the way of disclosure in the case at hand. The fact we are having this discussion, Hinshelwood says, is a reason why courts should not be making these decisions on an ad hoc basis in the first place.

Hinshelwood finishes.

Phillips begins his rebuttal by citing Haldeman, interpreting Sirica’s opinion as indicating that the judge did not believe that disclosure was explicitly authorized by the rule, and that the district court was empowered to release the material simply because it would be absurd for it not to be able to. Katsas asks: Aren’t there cases that cut in the other direction? Why not acknowledge that this issue is not foreclosed by precedent? Phillips, pointing to the government’s position in Haldeman and language recently used in an opinion by Chief Judge Beryl Howell of the District Court for the District of Columbia, argues that the issue is settled by proper interpretation of the text of Rule 6(e). He then attempts to refute the notion that Biaggi authorized disclosure only because the pertinent information had already been made public; Phillips argues that the justification for disclosure in that case was to reveal information that had not previously been revealed.

Katsas delves more deeply into the reason for disclosure in Biaggi. Wasn’t the justification “exceptional circumstances,” which is far more narrow than a “nine-factor balancing test”? Yes, Phillips suggests, adding that he is fine with an exceptional circumstances test because he thinks the present case reflects an exceptional circumstance.

Is passage of time an exceptional circumstance? Katsas asks. Phillips argues that it is the nature of the underlying case that is exceptional. He proffers an example: An Eisenhower-era New York City mugging case probably would not count as exceptional. Seizing on what he calls the government’s concession that there is no case-specific reason not to disclose in this instance, Phillips closes his argument by contending that the material in this case is appropriate for disclosure and requesting both the court affirm that the district court’s authority to release the material and remand the case to allow the records to be released.