Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

The 11th Circuit Court of Appeals is weighing in on the question of revealing grand jury information as House Democrats spar with the Justice Department for details of the Mueller investigation. | Ric Feld/AP Photo Appeals court to revisit grand jury secrecy

A federal appeals court announced Tuesday that its full, 12-judge bench plans to revisit whether judges have the authority to disclose usually secret grand jury information in exceptional cases.

The Atlanta-based 11th Circuit Court of Appeals said it plans to take up, en banc, a case involving a historian’s request for access to records of a federal grand jury investigation into the 1946 lynching of two African-American couples in Walton County, Ga.

Legal disputes about access to grand jury information are drawing unusual attention at the moment because of a standoff between the House Judiciary Committee and Attorney General Bill Barr over access to various materials related to special counsel Robert Mueller’s Trump-Russia probe.

Part of that fight is a disagreement over whether lawmakers are entitled to see testimony and evidence that is typically kept secret because it was obtained by a grand jury.

The 11th Circuit’s brief order Tuesday wiped out the victory historian Anthony Pitch won in February, when a court panel voted 2-1, to uphold a lower-court order allowing disclosure of the records.

The Justice Department has steadfastly opposed disclosure in such cases, saying that judges can only permit release through six explicit exceptions to the grand jury secrecy rule. However, government lawyers did not seek en banc rehearing of the decision.

The court’s order Tuesday said an unidentified 11th Circuit judge acting on his or her own sought a vote on further review of the case. A majority of the court’s active judges agreed.

It’s unclear precisely what triggered the rehearing, but Pitch’s attorney, Joe Bell, told POLITICO he believes it may be some combination of factors including a heated dissent by a district court judge who sat on the 11th Circuit panel and a conflicting, 2-1 ruling issued in April by the D.C. Circuit on a similar case involving another author, Stuart McKeever. He has asked the full D.C. Circuit to rehear his case, and there was a sign last month that they might do so.

“I know it probably involves the McKeever decision and it might also be that everyone saw what’s going on with Mueller in Washington and they want to come out with some sort of united front,” Bell said.

Whatever the 11th Circuit ultimately does, it won’t iron out disagreements among courts on the issue.

Other appeals courts, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

However, the St. Louis-based 8th Circuit indicated in a 2009 case stemming from independent counsel Ken Starr’s Whitewater investigation that courts don’t have authority beyond that specifically laid out in the rule.

A Justice Department spokesperson did not respond to a request for comment on the 11th Circuit’s announcement.

The case in question involves the July 1946 lynching of two married couples — George and Mae Murray Dorsey, and Roger and Dorothy Malcom — on Moore’s Ford Bridge. The killings were the subject of Pitch’s 2016 book, “The Last Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town.“

Bell said he remains convinced that sunlight is needed with regard to the actions the government did and did not take to investigate the post-World War II lynching.

“I’m ready to argue this in front of the 12-member panel, and I’m going to continue to bang the drum for justice. Hopefully, I’ll prevail because I’m on the right side of history,” the New Jersey-based attorney said. “These are unavailable witnesses in a cold case. I want to know what really happened. What is the fear?”

