With news that Special Counsel Robert Mueller has begun using grand juries to conduct his investigation, there are now questions about where it might all lead. Of course, it might lead nowhere: at the end of the investigation Mueller might conclude that the evidence is insufficient to warrant criminal charges. Or it might lead to somewhere significant: Trump campaign and administration officials being charged with crimes related to Russian interference with the U.S. presidential election or with other crimes discovered during the investigation.
But what if the investigation discloses sufficient evidence of crimes or impeachable acts committed by President Trump, but Mueller concludes that he cannot indict a sitting President (either because that’s his own reading of the law or he is required to follow the view of the Justice Department’s Office of Legal Counsel on this question)? And what if the investigation discloses misconduct by Trump administration officials that does not rise to the level of criminality? In either case, what, if anything, could Mueller do with the information that has been gathered during the course of the grand jury investigation?
There are three possible options which have received little or no attention despite the flurry of commentary about Mueller’s investigation, including: (1) a public/confidential disclosure of evidence to Congress via a congressional subpoena; and (2) a public report out of the grand jury using a special procedural device. We will discuss a third option in a piece later this week, which goes beyond reporting and toward a possible greater vindication of the public interest in criminal justice.
I. Disclosure to Congress: An open door
Congress could likely subpoena the grand jury evidence for the purpose of considering impeachment of Trump (though of course this would presently require the agreement of Republicans).
Disagreement exists as to whether a sitting President can be criminally indicted. Assume for a moment that Mueller concludes that the answer is that he cannot, or that Deputy Attorney General Rod Rosenstein informs Mueller that he is bound by a 2000 OLC opinion concluding that a President is immune from criminal indictment while sitting in office. How might the evidence Mueller’s team has accumulated then find its way to Congress?
Ordinarily, Federal Rule of Criminal Procedure 6(e) imposes secrecy on any “matter occurring before the grand jury” (there may be some wiggle room to argue that documents subpoenaed by the grand jury do not necessarily reveal a matter occurring before the grand jury, see In re Grand Jury Impaneled Oct. 2, 1978 (79-2), 510 F.Supp. 112, 113-15 (D.D.C. 1981), and therefore could be disclosed without contravening Rule 6, but let’s assume that there would be a bulk of evidence, including witness testimony, that indisputably fell within Rule 6’s mandate). Rule 6(e) contains a handful of exceptions that permit, for example, disclosure to other government lawyers to enforce the federal criminal law, disclosure of foreign intelligence information to appropriate (and listed) officials or agencies, and disclosures ordered by the court “preliminarily to or in connection with a judicial proceeding.”
None of the exceptions contained in Rule 6(e) plainly permit disclosure to Congressional investigative committees. However, the analysis does not stop there. Several Circuit Courts of Appeal have held that courts have the inherent authority to order disclosure of grand jury materials even outside of the constraints and exceptions of Rule 6(e), with different courts offering tests to determine the narrow circumstances when this would be permitted. See, e.g., Carlson v. United States, 837 F.3d 753 (7th Cir. 2016); In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997); In re Petition of Stanley Kutler, 800 F.Supp.2d 42 (D.D.C. 2011) (permitting disclosure of Richard Nixon’s Watergate grand jury testimony).
Specifically, there is clear precedent for the disclosure of grand jury materials to Congress for purposes of impeachment. The Court of Appeals for the D.C. Circuit affirmed Judge Sirica’s order transmitting a report from the grand jury to the House Judiciary Committee for consideration of impeachment of Richard Nixon. Judge Sirica found that Rule 6(e) aimed to do no more than codify the “traditional practice of secrecy” of the grand jury, a practice which the judge found to be narrow but not inconsistent with the disclosure to Congress for purposes of impeachment. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).
More recently, the Eleventh Circuit considered the issue in the case of Judge Alcee Hastings, a federal district court judge from Florida who was first prosecuted and acquitted for federal bribery charges, and then impeached on the basis of the same evidence by the House and Senate in 1988 (Hastings went on to win election to the House of Representatives in 1993, a position he continues to hold today). After Hastings’ acquittal, first an Investigating Committee of the Judicial Council of the Eleventh Circuit (“the Investigating Committee”) and then the House Judiciary Committee sought the grand jury materials for purposes of considering whether Hastings should be impeached. The Eleventh Circuit affirmed confidential disclosure to the Investigating Committee (so no public disclosure), relying on its inherent authority and after concluding that disclosure was warranted because of the societal importance of impeachment and the analogous nature of an impeachment proceeding to a judicial one. In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261 (11th Cir. 1984).
When the Eleventh Circuit later considered whether the grand jury materials could be provided to the House Judiciary Committee, the parties then agreed that impeachment was a “judicial proceeding” within the meaning of Rule 6(e) and that therefore a court could order disclosure under the terms of that Rule. The Eleventh Circuit found that disclosure to the Judiciary Committee was warranted for essentially the same reasons it allowed disclosure to the Investigating Committee. The court found, however, that it could not order the Judiciary Committee to maintain confidentiality, as this would impinge on Congress’s constitutional authorities, and noted that while the Committee said that confidentiality rules would apply to the documents, the Committee was free to change its mind and make them public. In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F2d 1438 (11th Cir. 1987). In sum, therefore, the Eleventh Circuit suggested two separate legal bases to order disclosure of grand jury materials to a congressional body considering impeachment, relying either on the court’s inherent authority or on the “judicial proceeding” exception of Rule 6(e). And the Eleventh Circuit recognized that the Congress may subsequently choose to make that material public.
These precedents strongly indicate, therefore, that Congress would have no difficulty subpoenaing the results of Mueller’s grand jury investigation should that inquiry end without an indictment of Trump, but with some indication that impeachment might nonetheless be warranted. (The same would be true for other executive branch officials if Congress believed that the grand jury materials could assist in the consideration of their impeachment). And this result would make perfect sense. Although grand jury secrecy serves important interests, and generally restricts the use of powerful investigative tools to a determination only of whether crimes have been committed, where the question of impeachment is on the table, the interests tilt toward disclosure. Particularly if one concludes that Trump cannot be criminally indicted (because that avenue is constitutionally barred for a sitting President) and that the only recourse is impeachment if he has committed crimes or serious misconduct, it would plainly be in the public interest for Congress to have access to all available evidence when considering the grave question of impeachment. Of course, Congress could use its own subpoena powers to reproduce Mueller’s investigation and collect all the evidence itself, but this would result in months if not years of delay for no identifiable reason. What if Congress wanted the grand jury information but not tied to any real prospect or stated interest in impeachment? It is an open question whether the societal interest in a particular Congressional investigation would also inspire courts to allow grand jury information to be handed over. Some of the existing cases that we have discussed appear to hinge on the connection to an impeachment proceeding or the prospect of impeachment.
Now what about other members of the Trump campaign and/or administration? What if Mueller found evidence of misconduct by these officials that fell short of criminality? Here it seems more likely that grand jury secrecy would prevail. Assuming that Congress was not considering impeachment of these officials (a scenario that we address above), the arguments for disclosure might be less compelling.
II. A report to the public: A highly limited option
As an alternative, Mueller could turn to 18 U.S.C. 3333 which allows a “special grand jury” to issue public reports “concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.” At first blush, there might seem to be some potential here. But there are numerous barriers. First, a minor hurdle is that Mueller would have to convene a special grand jury pursuant to 18 USC 3331, which permits the impaneling of a special grand jury in any district of more than four million people or if authorized by a senior official in the DOJ. Moreover, the statute is narrow and would apply only to misconduct in office (so not during the campaign) and only if it involved “organized criminal activity.” While the DOJ has defined this term broadly to include “any criminal activity collectively undertaken,” it nonetheless requires some evidence of criminal activity to which the alleged misconduct relates. One possible narrow opening might be if the grand jury investigation uncovered evidence that administration officials had organized themselves to obstruct the investigation in ways that constituted misconduct or malfeasance, but fell short of indictable criminal conduct. In that limited case, section 3333 would provide an avenue for Mueller to generate a public report of officials’ activities related to the obstruction of justice.
Perhaps a bigger problem with either presentment (regarding any person aside from the President) or a special grand jury report is an institutional one. Prosecutors place great store in the principle that either you indict following an investigation, and allow the subject of the indictment to defend himself or herself in court, or you stay quiet. This is why many experienced prosecutors had difficulty with James Comey’s public statements regarding the Hillary Clinton email investigation. Disparaging the targets of investigations or disclosing damning information about them without allowing them any avenue to defend themselves is generally considered unfair, and it is often likely to reduce the legitimacy and credibility of the prosecution office. Moreover, it could thrust the Mueller into the uncertain and treacherous position of determining what constitutes “misconduct” or “misfeasance” short of criminal conduct and how far such reporting should go. It seems likely that Mueller would be particularly sensitive about avoiding taking any steps that could discredit the office of the special counsel, and would therefore be loath to go down any path that might end with him offering public disclosures about the activities of public officials without charging them. The counter-argument is that there is a strong public interest in knowing of evidence of misconduct of serving public officials and that in fact the work and role of the special counsel could be questioned if this information were kept secret. In addition, Mueller may find that this White House’s misrepresentation of the truth and attempts to undermine investigations requires a public airing of some of the findings. He may also think that the White House has an extraordinary platform to defend its officials in the face of disparaging information. In the unlikely event that Mueller finds himself in the position of having to consider whether to recommend a special grand jury report, these are the factors that he will have to consider.
[For the follow-on piece by Goodman and Whiting, see “An Untold Option for Mueller: Grand Jury “Presentment” as an Alternative to Indicting Trump.”]