What is Attorney General William Barr doing with removing grand jury information from the Mueller report before disclosing it? While rules govern grand jury secrecy, they contain room for interpretation. Barr’s very decision to engage in this process to keep parts of the report hidden from Congress is a danger sign. If Barr is using grand jury secrecy rules as a shield to prevent disclosure of the Mueller report, he may find himself suffering blowback from Congress and the public.

The Attorney General’s second letter regarding Special Counsel Robert Mueller’s report stated that the report will be released to Congress and the public after Barr and his staff have made “redactions that are required.” He lists four categories for redaction: (1) grand jury material; (2) material that potentially compromises intelligence source and methods; (3) material that could affect “ongoing matters,” including ones the Special Counsel has referred to other parts of the Justice Department; and (4) “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” While any one of those categories might be interpreted broadly enough to conceal large swaths of Mueller’s findings, grand jury material is one that permits Barr great discretion in defining its scope.

In his first letter, Barr highlighted Federal Rule of Criminal Procedure 6(e), which provides that an attorney for the government must not disclose a “matter occurring before the grand jury”—though with some relevant exceptions that Barr did not discuss. Many reasons exist for grand jury secrecy – to prevent flight of a target, to insure deliberations free from interference, to prevent witness tampering, to promote candor from witnesses, and to protect the reputations of those under investigation who are not ultimately charged. See United States v. Proctor & Gamble Co., 356 U.S. 677, 681, n. 6 (1959). As an “attorney for the government,” Barr has a legal obligation to comply with the rule.

Defining the Scope of Grand Jury Information

Certainly, grand jury witness testimony comes within the definition of a “matter occurring before the grand jury,” but some courts have defined the scope of the rule more broadly than that. The D.C. Circuit, which likely controls here, has held that Rule 6(e) covers disclosure of “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.” SEC v. Dresser Industries, 628 F.2d 1368, 1382 (D.C. Cir. 1980). That definition leaves a great deal of room for interpretation.

Some courts have taken the position that reports of interviews of witnesses in anticipation that they will testify before the grand jury qualify as matters occurring before the grand jury, that is, if that information “may reveal what occurred before the grand jury.” Martin v. Consultants and Administrators, 966 F.2d 1078, 1097 (7th Cir. 1992). Other courts have held that if the report of an interview was not itself presented to the grand jury, then the report does not become grand jury material. Anaya v. United States, 815 F.2d 1373, 1380 (10th Cir. 1987). Barr’s initial letter to Congress from March 24 stated that Mueller’s team interviewed approximately 500 witnesses. If Barr wanted to prevent the disclosure of the reports from these interviews, he could try to take the position that they were conducted in anticipation that the witnesses would testify before the grand jury, and redact from Mueller’s report the names of the witnesses and the substance of their statements. He would face significant obstacles potentially including reports conducted for the counterintelligence investigation and those conducted before a grand jury ever formed. But that is not to say Barr would not try this route, and, in the event the Department gets challenged in court, fight it out there.

Documents also may become 6(e) material when subpoenaed by a grand jury if they would reveal what the grand jury considered. In Fund for Constitutional Government v. National Archives, 656 F.2d 856, 869 (D.C. Cir. 1981), the court included within the scope of 6(e) “documents considered by the grand jury.” Even pre-existing documents created for an independent purpose but subpoenaed by the grand jury may, in some cases, be covered by 6(e) where the documents are sought to discover what the grand jury obtained rather than for their own intrinsic value. United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). Barr could share the documents with Congress without violating 6(e), but the fact that they were obtained for a grand jury investigation is the part that would be secret.

According to Barr’s initial letter, Mueller’s grand jury issued 2,800 subpoenas. Grand jury subpoenas are most often used to seek records from third parties, such as banks and service providers. A single subpoena might yield thousands of pages of documents in response. With 2,800 subpoenas served, Mueller and his team likely obtained thousands if not millions of pages of documents. If the actual reason for the disclosure of the documents were to inform the public that they were obtained by the grand jury, the documents themselves or even a list of the documents could arguably be grand jury material covered by Rule 6(e). If Barr takes this view, then he might redact reference to them in Mueller’s report. Once again, the question is how far Barr tries to push the envelope within his zone of discretion.

A very expansive view of 6(e) protection could also prevent the disclosure of materials obtained in a search warrant. Ordinarily, items obtained by search warrant are not considered matters occurring before the grand jury even if a grand jury is investigating the same subject. In re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207, 210 (D.R.I. 1980). However, the Fourth Circuit has stated that where a government agent used search warrants and subpoenas to obtain information indiscriminately, the official may become an “agent of the grand jury,” causing the materials to merge under the protection of 6(e). In re Grand Jury Subpoena, 920 F.2d 235, 243 (4th Cir. 1990). Barr’s letter indicates that Mueller executed 500 search warrants, likely yielding voluminous documents. If Barr were to take the aggressive Fourth Circuit approach to search warrant materials, then he could potentially try to shield from disclosure any reference to them.

Barr might consider even Mueller’s own analysis to be grand jury material protected by Rule 6(e). In Fund for Constitutional Government, 656 F.2d at 869, the court included within the scope of 6(e) “conclusions reached as a result of the grand jury investigations.” One of the great curiosities about Mueller’s report is his failure to reach a conclusion as to whether President Trump obstructed justice. Did Mueller believe that the evidence was inconclusive? Or did he find that while the evidence was sufficient, he was unsure whether charges should be filed for obstruction of justice against the president as a matter of law in light of his role as head of the executive branch? Or was he instead deferring to Congress to decide whether the evidence proved a high crime or misdemeanor for which impeachment is appropriate? Of course, this presumes that evidence of obstruction was presented to the grand jury, which there is good reason to think it was not. Many questions also abound over Mueller’s conclusion that the “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” If “conclusions reached as a result of the grand jury investigations” are broadly understood and protected from disclosure under Rule 6(e), then we might not learn the answers under an expansive reading by Barr of the rule’s requirements, or more properly we would not learn whether the grand jury considered the evidence.

Exceptions that Authorize Release of Grand Jury Information

One check on Barr’s discretion is the courts. While Barr, as “an attorney for the government,” must adhere to the secrecy provisions of Rule 6(e), he could seek permission from the district court to disclose to Congress the grand jury material in Mueller’s report. As Judge John Sirica noted in the Watergate case, once an investigation has ended, many grand jury secrecy considerations disappear. “There is no need to protect against flight on anyone’s part, to prevent tampering with or restraints on witnesses or jurors, to protect grand jury deliberations, to safeguard unaccused or innocent persons with secrecy.” In Re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1229 (D.D.C. 1974). In deciding that the report of the grand jury investigating Watergate should be disclosed to Congress, the court noted that “secrecy must prevail during deliberations, and that any later disclosure will occur at the court’s discretion.” Id. at 1228. Trial courts have discretion to disclose grand jury material “where the need for it outweighs the public interest in secrecy.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979). Even if disclosing the report to the public compromises too much secrecy, Barr could make a more limited to request for disclosure only to Congress.

If Barr were looking for a way to disclose the report to Congress, he might also find authority under Rule 6(e)(3)(D). That section permits an attorney for the government to disclose a grand jury matter involving counterintelligence to “any federal…official” to assist in that official’s duties, and permits disclosure of grand jury matters involving “grave hostile acts of a foreign power” or intelligence gathering by foreign powers to “any appropriate federal . . . government official” for the purpose of responding to such threats. Mueller’s investigation has been characterized as, in part, a counterintelligence investigation, seeking to identify links between the Trump campaign and the Russian government. So long as the content of the report satisfies the definition of this rule, members of the Senate and House intelligence committees may qualify as appropriate federal government officials, which the rule does not define. The rule provides that the government official receiving the information may use it “only as necessary in the conduct of that person’s official duties.” The attorney for the government could make this disclosure with only notice to, rather than permission from, the court.

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Barr finds himself in a position of great power. He could use Rule 6(e) to try to conceal large portions of Mueller’s report. If, however, he is committed to maximum transparency, as he pledged during his confirmation hearings, then he has a path to fulfilling that commitment by seeking court permission to disclose the report either to the public or Congress or by using any authority he has to provide the report to Congress with notice to the court.

For its part, Congress could request Barr reveal the criteria he is applying in making redactions—since the devil is in his exact interpretation of “grand jury information”—and why he has failed to use authority he possesses to skip the redaction process and provide the report to Congress under exceptions codified in the very rule he’s invoked for nondisclosure.

If Barr does not invoke the exceptions to grand jury secrecy and provide Mueller’s report, he may find himself defending a subpoena from Congress. Instead, he could score political points for the administration by agreeing to an outcome that is inevitable anyway.