Amicus Curiae Brief — Department of Justice, Petitioner v. House Committee on the Judiciary

Nos. 19-1328

IN THE

Supreme Court of the United States

___________

UNITED STATES DEPARTMENT OF JUSTICE,

Petitioner,

v.

COMMITTEE ON THE JUDICIARY OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,

Respondent.

___________

On Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

__________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

ASHWIN P. PHATAK

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 21, 2020

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT.................................................................

1

ARGUMENT .........................................................

6

I. THERE IS A LONG HISTORY OF GRAND

JURY MATERIALS BEING DISCLOSED

IN APPROPRIATE CIRCUMSTANCES,

AND THE FEDERAL RULES OF CRIMINAL PROCEDURE MAINTAIN THAT

LONG-STANDING LEGAL TRADITION ..

6

II. COURTS HAVE ROUTINELY DISCLOSED GRAND JURY MATERIALS TO

CONGRESS TO FURTHER ITS IMPEACHMENT FUNCTION .........................

12

III. THE DISTRICT COURT ORDER AUTHORIZING THE RELEASE OF THE

GRAND JURY MATERIALS SHOULD BE

UPHELD.......................................................

20

CONCLUSION ....................................................

23

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Atwell v. United States,

162 F. 97 (4th Cir. 1908) ..................

2, 9, 11

Blair v. United States,

250 U.S. 273 (1919) ..........................

7

Costello v. United States,

350 U.S. 359 (1956) ..........................

6

Doe v. Rosenberry,

255 F.2d 118 (2d Cir. 1958) .............

3, 12

Douglas Oil Co. of Cal. v. Petrol Stops Nw.,

441 U.S. 211 (1979) .......................... 5, 7, 20, 22

Haldeman v. Sirica,

501 F.2d 714 (D.C. Cir. 1974) ..........

4, 16

In re Cisneros,

426 F.3d 409 (D.C. Cir. 2005) ..........

19, 22

In re Espy,

259 F.3d 725 (D.C. Cir. 2001) ..........

18

Order, In Re: Grand Jury Investigation of

U.S. Dist. Judge G. Thomas Porteous,

Jr., No. 2:09-mc-04346-CVSG (E.D. La.

Aug. 6, 2009) .....................................

18

In re Grand Jury Investigation of Uranium

Indus., No. 78-0173, 1979 WL 1661

(D.D.C. Aug. 16, 1979) .....................

17

Court Order, In Re: Grand Jury Proceeding, No. 09-30737

(5th Cir. Nov. 12, 2009) ....................

18

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

In re Grand Jury Proceedings,

4 F. Supp. 283 (E.D. Pa. 1933) ........

2, 8, 10

In re Grand Jury Proceedings of Grand

Jury No. 81-1 (Miami),

669 F. Supp. 1072 (S.D. Fla. 1987) .. 17, 18, 23

In re North,

16 F.3d 1234 (D.C. Cir. 1994) ..........

18

In re Petition to Inspect & Copy Grand

Jury Materials,

735 F.2d 1261 (11th Cir. 1984) ........

11

In re Report & Recommendation of June 5,

1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives,

370 F. Supp. 1219 (D.D.C. 1974) .....

passim

McKeever v. Barr,

920 F.3d 842 (D.C. Cir. 2019) ..........

4, 16

Metzler v. United States,

64 F.2d 203 (9th Cir. 1933) ..............

2, 9, 10

Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395 (1959) ..........................

11

Schmidt v. United States,

115 F.2d 394 (6th Cir. 1940) ............

11

Special Feb. 1971 Grand Jury v. Conlisk,

490 F.2d 894 (7th Cir. 1973) ............

3, 12

United States v. Am. Med. Ass’n,

26 F. Supp. 429 (D.D.C. 1939) .........

11

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Calandra,

414 U.S. 338 (1974) ..........................

6

United States v. Farrington,

5 F. 343 (N.D.N.Y. 1881) ..................

8

United States v. Sells Eng’g, Inc.,

463 U.S. 418 (1983) ..........................

6

United States v. Smith,

27 F. Cas. 1186 (C.C.D.N.Y. 1806) ..

8

United States v. Socony-Vacuum Oil Co.,

Inc.,

310 U.S. 150 (1940) ..........................

2, 10

Constitutional Provisions and Legislative Materials

Conduct of Albert W. Johnson and Albert L.

Watson, U.S. District Judges, Middle District of Pennsylvania: Hearing before Subcomm. Of the H. Comm. on the Judiciary,

79th Cong. (1945) ......................................

14

H.R. Rep. No. 111-427 (2010) ......................

18

H.R. Rep. No. 116-346 (2019) ...................... 4, 20

H.R. Res. 660, 116th Cong. (2019) ...............

20

U.S. Const. amend. V ...................................

6

28 U.S.C. § 594 (2014) ..................................

18

v

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

Application of the Comm. on the Judiciary,

In re Application of Comm. on Judiciary,

U.S. House of Reps., for an Order Authorizing Release of Certain Grand Jury Materials, 414 F. Supp. 3d 129 (D.D.C. 2019)

(No. 19-gj-48) ................................... 2, 19, 22, 23

A Sitting President’s Amenability to Indictment

and

Criminal

Prosecution,

24 Op. O.L.C. 222 (2000) ...........................

21

Richard M. Calkins, Grand Jury Secrecy,

63 Mich. L. Rev. 455 (1965) ......................

7

Cannon’s Precedents of the House of Representatives (1921) ....................................... 13, 14

Fed. R. Crim. P. 6(e)(2) ................................

10

Fed. R. Crim. P. 6(e)(3)(E)(i) ........................ 3, 11

Fed. R. Crim. P. 6(e) 1944 advisory committee’s note ............................................... 3, 11, 15

The Federalist No. 65 (Clinton Rossiter ed.,

1961) (Hamilton) .......................................

13

Michael A. Foster, Cong. Research Serv.,

R45456, Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight (2019) ...................... 7, 8

Hinds’ Precedents of the House of Representatives (1907) ......................................... 3, 12, 13

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Mark Kadish, Behind the Locked Door of an

American Grand Jury: Its History, Its Secrecy,

and

Its

Process,

24 Fla. St. U. L. Rev. 1 (1996) .................. 7, 8

Special Counsel Robert S. Mueller, III, U.S.

Dep’t of Justice, Report on the Investigation into Russian Interference in the 2016

Presidential Election (Mar. 2019) ......... 1, 5, 21

John Somers, The Security of Inglish-Mens

Lives, or the Trust, Power, and Duty of the

Grand Jurys of England (London, Benjamin Alsop 1682) .........................................

7

1

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive

promise of our Constitution’s text, history, and values.

CAC works in our courts, through our government,

and with legal scholars to improve understanding of

the Constitution and preserve the rights, freedoms,

and structural safeguards that our nation’s charter

guarantees. CAC thus has a strong interest in the

grand jury as an institution and the circumstances under which grand jury materials may be disclosed.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In March 2019, Special Counsel Robert Mueller issued a detailed report of his investigation into Russia’s

interference in the 2016 election, as well as President

Trump’s many efforts to obstruct that investigation.

See Special Counsel Robert S. Mueller, III, U.S. Dep’t

of Justice, Report on the Investigation into Russian Interference in the 2016 Presidential Election (Mar. 2019)

(“Mueller Report”). However, the version of the report

that was released publicly—including to Members of

Congress—was significantly redacted. Specifically,

several key portions of the report that referenced

grand jury proceedings or materials were omitted pursuant to Federal Rule of Criminal Procedure 6(e),

1 The parties have consented to the filing of this brief and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amicus state that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or their counsel made a monetary contribution to its preparation

or submission.

2

which governs when and to whom grand jury materials may be disclosed. The House Judiciary Committee—seeking to exercise “due diligence” in its impeachment investigation by “gathering and assessing all relevant evidence” related to the Mueller Report’s findings, Application of the Comm. on the Judiciary at 2,

In re Application of Comm. on Judiciary, U.S. House

of Reps., for an Order Authorizing Release of Certain

Grand Jury Materials, 414 F. Supp. 3d 129 (D.D.C.

2019) (No. 19-gj-48)—filed an application with the district court requesting that it release to the Committee

those portions of the report redacted as grand jury materials, as well as any underlying grand jury transcripts or exhibits that are referenced in the redacted

portions of the report or that are related to actions of

the President that the Committee is investigating.

The district court properly granted the Committee’s

request.

Although “[g]rand jury testimony is ordinarily confidential,” this Court has made clear that “after the

grand jury’s functions are ended, disclosure is wholly

proper where the ends of justice require it.” United

States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150,

233-34 (1940); see In re Grand Jury Proceedings, 4 F.

Supp. 283, 284 (E.D. Pa. 1933) (“the rule of secrecy has

long since been relaxed by permitting disclosure whenever the interest of justice requires,” and that determination “rests largely within the discretion of the court

whose grand jury is concerned”). Thus, courts have

long permitted the release of grand jury materials under certain circumstances. See, e.g., Metzler v. United

States, 64 F.2d 203 (9th Cir. 1933); Atwell v. United

States, 162 F. 97 (4th Cir. 1908).

Against that background, when grand jury secrecy

was codified in the Federal Rules of Criminal Procedure in 1946, those Rules incorporated the long-

3

standing view that courts should have discretion to

disclose grand jury materials under certain circumstances. Indeed, the Advisory Committee that promulgated those rules explained that Rule 6(e) was intended to “continue[] the traditional practice of secrecy

on the part[] of members of the grand jury, except when

the court permits a disclosure.” Fed. R. Crim. P. 6(e)

1944 advisory committee’s note 1 (emphasis added).

To that end, the Rule explicitly permits a court to authorize disclosure of grand jury materials in certain

circumstances, including “preliminarily to or in connection with a judicial proceeding,” Fed. R. Crim. P.

6(e)(3)(E)(i), and courts have disclosed grand jury materials pursuant to that Rule in a variety of circumstances, see, e.g., Special Feb. 1971 Grand Jury v. Conlisk, 490 F.2d 894, 896-98 (7th Cir. 1973) (disclosure to

police department investigating corruption); Doe v.

Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958) (disclosure to bar association investigating one of its members).

Most pertinent here, Congress has received grand

jury materials to further its impeachment and investigative functions both before and after the passage of

the Federal Rules. For example, as early as 1811, a

grand jury in the Mississippi Territory forwarded to

the House of Representatives its presentment specifying charges against federal territorial judge Harry

Toulmin, which set in motion a House inquiry regarding whether to initiate formal impeachment proceedings. 3 Hinds’ Precedents of the House of Representatives § 2488, at 984-85 (1907); see In re Report & Recommendation of June 5, 1972 Grand Jury Concerning

Transmission of Evidence to the House of Representatives, 370 F. Supp. 1219, 1230 & n.47 (D.D.C. 1974)

(“June 5, 1972 Grand Jury”) (citing this early example

of disclosure of grand jury materials). And following

4

the passage of the Federal Rules, courts have disclosed

grand jury materials to Congress for use in impeachment investigations. Most prominently, the D.C. District Court permitted the transfer of a grand jury report concerning allegedly illegal conduct by President

Richard Nixon to the House Judiciary Committee in

1974. June 5, 1972 Grand Jury, 370 F. Supp. 1219.

The en banc D.C. Circuit approved of that decision,

Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir. 1974)

(en banc), and a D.C. Circuit panel recently clarified

that, in its view, that report was released under “the

Rule 6 exception for ‘judicial proceedings,’” McKeever

v. Barr, 920 F.3d 842, 847 n.3 (D.C. Cir. 2019).

That history demonstrates that courts may disclose grand jury materials to Congress under Rule 6(e)

to further Congress’s impeachment function, and the

House Judiciary Committee’s request for the grand

jury materials associated with Special Counsel

Mueller’s report plainly furthers that function. The

House continues to be engaged in an impeachment inquiry. See Resp. Br. 12-13; see also H.R. Rep. No. 116346, at 159 n.928 (2019) (Committee “has continued

and will continue” its impeachment investigation concerning the Russia investigation); Pet. App. 17a (lower

court noting that the House has “repeatedly stated

that if the grand jury materials reveal new evidence of

impeachable offenses, the Committee may recommend

new articles of impeachment”). And the House’s request satisfies the criteria the Supreme Court has recognized that “[p]arties seeking grand jury transcripts

under Rule 6(e) must” satisfy: “the material they seek

is needed to avoid a possible injustice in another judicial proceeding, . . . the need for disclosure is greater

than the need for continued secrecy, and . . . their request is structured to cover only material so needed.”

5

Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S.

211, 222 (1979).

First, failing to disclose these materials would result in injustice: although the Special Counsel concluded that the President engaged in serious misconduct, he did not indict him on the theory that Congress—not the Department of Justice—is the institution that must hold the President accountable. See 2

Mueller Report at 1 & n.2 (pointing to “constitutional

processes for addressing presidential misconduct”).

Congress should not now be prevented from viewing

information relevant to its impeachment deliberations

because that evidence was also presented to a grand

jury.

Second, the need for disclosure is obviously greater

than the need for continued secrecy. “It would be difficult to conceive of a more compelling need . . . for an

unswervingly fair inquiry based on all the pertinent

information” than an impeachment inquiry into the

President. June 5, 1972 Grand Jury, 370 F. Supp. at

1230. And the need for secrecy is lessened where the

Committee seeks disclosure to only a limited number

of authorized individuals in Congress, not the broader

public. See Douglas Oil Co., 441 U.S. at 223 (“as the

considerations justifying secrecy become less relevant,

a party asserting a need for grand jury transcripts will

have a lesser burden in showing justification”).

Third, the request covers only material the Committee needs: “[t]he redacted grand-jury material

bears on whether the President committed impeachable offenses, including by obstructing the Special

Counsel’s investigation.” Resp. Br. 9.

In short, the Committee’s request is both narrowly

tailored and critical to its ability to investigate the

President and make an informed decision regarding

6

whether to impeach him. This Court should affirm the

decision of the court below.

ARGUMENT

I. THERE IS A LONG HISTORY OF GRAND

JURY MATERIALS BEING DISCLOSED IN

APPROPRIATE CIRCUMSTANCES, AND

THE FEDERAL RULES OF CRIMINAL PROCEDURE MAINTAIN THAT LONG-STANDING LEGAL TRADITION.

The grand jury is a centuries-old institution, and

while there is a long tradition of maintaining the secrecy of grand jury deliberations, grand jury secrecy

has never been absolute. Throughout the development

of the federal grand jury in American law, grand jury

materials have regularly been made public where

courts concluded that the interests of justice required

it. And the Federal Rules of Criminal Procedure,

which today govern grand jury proceedings, codified

that tradition.

“[A]n English institution,” the grand jury was

“brought to this country by the early colonists and incorporated in the Constitution by the Founders.” Costello v. United States, 350 U.S. 359, 362 (1956); see

United States v. Calandra, 414 U.S. 338, 342 (1974)

(“The institution of the grand jury is deeply rooted in

Anglo-American history.”); United States v. Sells

Eng’g, Inc., 463 U.S. 418, 423 (1983) (“The grand jury

has always occupied a high place as an instrument of

justice in our system of criminal law—so much so that

it is enshrined in the Constitution.”). Specifically, the

Fifth Amendment provides that “[n]o person shall be

held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a

Grand Jury.” U.S. Const. amend. V. In other words,

under the Fifth Amendment, the government may not

7

indict an individual for a federal felony except with the

consent of a grand jury. Blair v. United States, 250

U.S. 273, 280 (1919) (“By the Fifth Amendment a presentment or indictment by grand jury was made essential to hold one to answer for a capital or otherwise infamous crime . . . .”).

Even before the grand jury was enshrined in the

Constitution, “grand jury proceedings [were] closed to

the public, and records of such proceedings [were] kept

from the public eye.” Douglas Oil Co., 441 U.S. at 218

n.9 (citing Richard M. Calkins, Grand Jury Secrecy, 63

Mich. L. Rev. 455, 457 (1965)). Legal scholars in England, like John Somers, explained that “grand jurors

were sworn not to disclose the subjects of the inquiry,

the witnesses, or any of the evidence,” and were also

prohibited from revealing “their own personal

knowledge, the knowledge of their fellow jurors, their

investigative plans, or their deliberations.” Mark Kadish, Behind the Locked Door of an American Grand

Jury: Its History, Its Secrecy, and Its Process, 24 Fla.

St. U. L. Rev. 1, 14-15 (1996) (citing John Somers, The

Security of Inglish-Mens Lives, or the Trust, Power,

and Duty of the Grand Jurys of England 43 (London,

Benjamin Alsop 1682)).

The Grand Jury Clause in the U.S. Constitution

incorporated this tradition, making “grand jury secrecy an implicit part of American criminal jurisprudence.” Id. at 16. Importantly, however, the general

rule of grand jury secrecy was “not unyielding.” Michael A. Foster, Cong. Research Serv., R45456, Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight 5 (2019). Instead,

the rule of secrecy was “relaxed [to] permit[] disclosure

whenever the interest of justice requires,” and the decision whether to disclose grand jury materials was

left “largely within the discretion of the court whose

8

grand jury is concerned.” In re Grand Jury Proceedings, 4 F. Supp. at 284; see United States v. Farrington,

5 F. 343, 346 (N.D.N.Y. 1881) (“[i]t is only practicable”

for courts to exercise “a salutary supervision over the

proceedings of a grand jury” by “removing the veil of

secrecy whenever evidence of what has transpired before them becomes necessary to protect public or private rights”).

Most exceptions to grand jury secrecy developed in

response to criminal defendants’ arguments that the

grand jury had heard improper evidence or that some

other type of misconduct had infected the grand jury

proceedings. Foster, supra, at 5. For instance, in

United States v. Smith, decided only a few years after

the Bill of Rights was ratified, a New York district

court held that a defendant could challenge an indictment on the theory that illegal evidence was introduced to a grand jury. 27 F. Cas. 1186 (C.C.D.N.Y.

1806). The prosecution argued that a grand jury was

meant to be “independent, and irresponsible; judging

for themselves as to the grounds on which they will

prefer an accusation, and that no one has a right to

investigate or to know what evidence they have had

before them.” Id. at 1188. Defense counsel responded

that “no unlawful act done in the grand jury, is such a

secret as jurors are bound by their oaths to keep.” Id.

at 1189. The court agreed with the defense, holding

that although the grand jury itself is bound to “keep[]

its deliberations secret,” the court is entitled to determine whether it has acted “according to the rules of

law.” Id. at 1188. The court therefore “implicitly accept[ed] the defense argument” that secrecy was in

part intended to “protect[] the individual accused and,

consequently, could be lifted where secrecy defeated

that purpose.” Kadish, supra, at 17.

9

Later cases reached a similar conclusion. In Atwell v. United States, the Fourth Circuit held that the

policy of grand jury secrecy alone did not shield a

grand juror from being questioned about the evidence

he considered while serving (though the court prevented the juror from testifying for other reasons). 162

F. at 98, 101, 103. The court acknowledged that secrecy was important “during the sittings and deliberations of the grand jury” because otherwise the grand

jury’s role “to make a preliminary and ex parte investigation . . . could easily be impeded by persons fearing

indictment.” Id. at 100. Moreover, although the court

suggested there should be “indefinite secrecy as to the

discussions and vote of the individual members of the

jury,” it held that the “evidence adduced before the

grand jury” could sometimes be made public “after

such jury has made its presentment and indictment,

publication thereof has been made, the grand jury finally discharged, and the defendant is in custody.” Id.

At that point, the court held that secrecy must be

maintained “[t]o the full extent necessary to fulfill the

ends of justice, and no further.” Id. (emphasis added).

And in Metzler v. United States, the Ninth Circuit

held that “[a]fter the [grand jury’s] indictment has

been found and made public and the defendants apprehended, the policy of the law does not require the same

secrecy as before.” 64 F.2d at 206. To the contrary,

“[w]here the ends of justice can be furthered thereby

and when the reasons for secrecy no longer exist, the

policy of the law requires that the veil of secrecy be

raised.” Id. Thus, the court permitted an assistant

U.S. attorney to read into evidence his shorthand

notes of grand jury proceedings in which certain defendants had confessed. Id.

Finally, in In re Grand Jury Proceedings, a district

court allowed grand jury material from an

10

investigation regarding an alleged conspiracy to violate the National Prohibition Act to be introduced in a

civil case regarding the revocation of a liquor license.

4 F. Supp. at 284. The court noted that the secrecy

rules were “designed for the protection of the witnesses

who appear and for the purpose of allowing a wider

and freer scope to the grand jury itself.” Id. at 284-85.

But “[i]n every case the court is called upon to balance

two policies, the one requiring secrecy, the other disclosure.” Id. at 285. As the court explained “the fact

that the grand jury has adjourned and been discharged

has often been considered as one reason for abandoning secrecy as to its deliberations.” Id. at 285. Moreover, “[i]t is . . . not the only circumstance which may

move the court, nor is it essential to the exercise of its

discretion. It yields to the general consideration

whether the ends of justice will be furthered by the disclosure.” Id. On that basis, the court allowed the

grand jury material to be introduced in the case.

Building on this precedent, this Court recognized

nearly a century ago that grand jury materials need

not always remain secret. Although “[g]rand jury testimony is ordinarily confidential,” the Court reasoned,

“after the grand jury’s functions are ended, disclosure

is wholly proper where the ends of justice require it.”

Socony-Vacuum Oil Co., 310 U.S. at 233, 234 (citing

Metzler, 64 F.2d 203).

In 1946, the Federal Rules of Criminal Procedure

were enacted, including several provisions governing

grand jury procedures. Notably, Rule 6(e) codified

grand jury secrecy principles that had, up until that

time, been a part of the common law enforced by

courts, prohibiting grand jurors, government attorneys, and others from disclosing a matter occurring before the grand jury and any materials associated with

that matter. See Fed. R. Crim. P. 6(e)(2). In keeping

11

with the practice of courts before the Rules’ enactment,

however, the Rules do not foreclose all disclosure of

grand jury materials. Instead, as the Advisory Committee Notes explain, Rule 6(e) was intended to “continue[] the traditional practice of secrecy on the part of

members of the grand jury, except when the court permits a disclosure.” Fed. R. Crim. P. 6(e) 1944 advisory

committee’s note 1 (emphasis added). The Notes then

cite three cases, all of which stand for the proposition

that district courts have discretion to release grand

jury materials publicly where appropriate. Id.; see

Schmidt v. United States, 115 F.2d 394, 397 (6th Cir.

1940); United States v. Am. Med. Ass’n, 26 F. Supp.

429, 430 (D.D.C. 1939); Atwell, 162 F. at 99-101. As

this Court explained following the Rules’ enactment,

“the federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge,”

and “Rule 6(e) is but declaratory” of “the same principle.” Pittsburgh Plate Glass Co. v. United States, 360

U.S. 395, 399 (1959). To that end, Rule 6(e) explicitly

enumerates several exceptions to the secrecy requirement, including, most importantly for this case, permitting a court to authorize disclosure “preliminarily

to or in connection with a judicial proceeding.” Fed. R.

Crim. P. 6(e)(3)(E)(i).

In the years since the Rule was adopted, courts

have routinely permitted the disclosure of grand jury

materials in a variety of circumstances where the interests of justice required it. See, e.g., In re Petition to

Inspect & Copy Grand Jury Materials, 735 F.2d 1261,

1263 (11th Cir. 1984) (permitting grand jury materials

regarding a federal judge’s indictment to be transferred to the Investigating Committee of the Judicial

Council of the Eleventh Circuit as part of its investigation into whether to recommend impeachment);

12

Special Feb. 1971 Grand Jury, 490 F.2d at 895 (permitting grand jury transcripts pertinent to an alleged

criminal conspiracy and corruption among police officers to be released to a Chicago Police Department’s

board of inquiry); Doe, 255 F.2d at 119-20 (permitting

grand jury testimony regarding an attorney’s alleged

corruption and criminal activity to be released to the

Grievance Committee of the New York City Bar Association).

***

In short, there is a long history of grand jury materials being disclosed notwithstanding the general

tradition of grand jury secrecy, and the Federal Rules

of Criminal Procedure maintained that practice. As

the next Section describes, courts have been especially

willing to permit disclosure of grand jury materials to

Congress to further Congress’s impeachment function.

II. COURTS HAVE ROUTINELY DISCLOSED

GRAND JURY MATERIALS TO CONGRESS

TO FURTHER ITS IMPEACHMENT FUNCTION.

The House has sometimes been described as “a

grand jury . . . to the nation,” with “the duty . . . to

examine into the conduct of public officers.” 3 Hinds’

Precedents of the House of Representatives § 1729, at

85-86 (describing 1818 House resolution that formed a

committee to investigate whether federal clerks and

other officers “have conducted themselves improperly

in their official duties”); see id. § 2342, at 714 (noting,

in the debates over the impeachment inquiry of Justice

Samuel Chase in 1804, that “[t]he analogy between the

function of the House in this matter [impeachment]

and that of a grand jury was correct and forcible”); id.

§ 2505, at 1009 (Rep. Henry L. Dawes noting in the

impeachment inquiry of Judge Mark W. Delahay that

13

“[t]he Senate is a perpetual court of impeachment, and

in presenting these articles we act only as a grand

jury”); see generally The Federalist No. 65, at 396

(Clinton Rossiter ed., 1961) (Hamilton) (referring to

Senate’s “judicial character as a court for the trial of

impeachments”).

Because the House effectively acts as a grand jury

when investigating public officers and deciding

whether to impeach them, it has a special need for

grand jury materials pertaining to those public officers’ misdeeds. Indeed, there is a long tradition of both

bodies of Congress receiving grand jury materials,

both before and after the passage of the Federal Rules

of Criminal Procedure.

As early as 1811, a county grand jury in the Mississippi Territory forwarded to the House of Representatives its presentment specifying charges against

federal territorial judge Harry Toulmin for consideration in a possible impeachment action. 3 Hinds’ Precedents of the House of Representatives § 2488, at 98485. Indeed, the House “inquiry as to Judge Toulmin

was set in motion by action of a grand jury forwarded

by a Territorial legislature.” Id. at 984 (emphasis

added). While the House eventually “declined to order

a formal investigation,” id. at 985, what is significant

for these purposes is that it received the grand jury

materials, and so far as amicus is aware, that disclosure was not controversial at the time.

There are many similar examples prior to the

adoption of the Federal Rules. See, e.g., 2 id. § 1123,

at 700 (describing congressional investigation of election fraud in St. Louis in 1902 in which a committee

received “a report of a grand jury which sat in St.

Louis” that described “a conspiracy entered into by

leading officials of sitting Member’s party”); 6 Cannon’s Precedents of the House of Representatives § 74,

14

at 99 (1921) (noting, in Senate inquiry into contested

election, that a grand jury had conducted a thorough

investigation “[a]nd everything before the grand jury

which was deemed at all relevant was introduced at

Grand Rapids, and the entire testimony at Grand Rapids was available to [the Senate] committee which, on

the part of the Senate, examined into this matter”); id.

§ 399, at 565 (noting, in 1924 Senate inquiry into Senator Burton Wheeler, that a committee chairman sent

“a telegram to the presiding judge of the court in Montana asking for the minutes of the grand jury proceedings, the names of the witnesses, and the documentary

evidence which had gone before the grand jury,” and

received that information).

Indeed, just a year before the Federal Rules took

effect, a district court judge in the Middle District of

Pennsylvania approved the application of the counsel

for the House Judiciary Committee to view grand jury

materials relevant to its impeachment investigation of

two federal judges. See Conduct of Albert W. Johnson

and Albert L. Watson, U.S. District Judges, Middle

District of Pennsylvania: Hearing before Subcomm. Of

the H. Comm. on the Judiciary, 79th Cong., at 62-63

(1945), https://tinyurl.com/y3yzjjhr. Specifically, the

court approved the House’s request “for permission to

use for its business the transcript of testimony of witnesses appearing before the . . . grand jury . . . together

with all the exhibits introduced in evidence before said

grand jury.” Id. at 63.

This practice persisted following the enactment of

the Federal Rules. In 1974, a district court permitted

the House Judiciary Committee to receive a grand jury

report concerning allegedly illegal conduct by President Nixon. See June 5, 1972 Grand Jury, 370 F.

Supp. 1219. In that case, the grand jury “heard evidence that it regard[ed] as having a material bearing

15

on matters within the primary jurisdiction of the Committee in its current inquiry [into the President],” and

lodged with the court a sealed report that it wished to

be transmitted to the Committee. Id. at 1221. After

concluding that the grand jury had the power to issue

a report, independent of a prosecutor’s decision to indict, id. at 1226, the court considered the propriety of

disclosure. The court noted that “[w]here, as here, a

report is clearly within the bounds of propriety, . . . [a

court] should presumptively favor disclosure to those

for whom the matter is a proper concern and whose

need is not disputed.” Id. at 1227. The court observed

that “[t]he Report’s subject [President Nixon] is referred to in his public capacity, and, on balance with

the public interest, any prejudice to his legal rights

caused by disclosure to the Committee would be minimal.” Id. Indeed, “the President would not be left

without a forum in which to adjudicate any charges

against him that might employ Report materials.” Id.

And while the court also noted that President Nixon

himself “[did] not object to release,” id., its decision

made clear that his acquiescence was only one of many

factors that made disclosure appropriate.

The court also rejected the idea that Rule 6(e) prohibited disclosure of the report to the Judiciary Committee. Citing the Advisory Committee Notes for the

proposition that the Rule “continues the traditional

practice of secrecy . . . , except when the court permits

a disclosure,” Fed. R. Crim. P. 6(e) 1944 advisory committee’s note 1, the court reasoned that “Rule 6(e)[,]

which was not intended to create new law, remains

subject to the law or traditional policies that gave it

birth,” June 5, 1972 Grand Jury, 370 F. Supp. at 1229.

None of those policies, in the court’s view, “dictate[d]

that in this situation disclosure to the Judiciary Committee be withheld.” Id. Indeed, examining the

16

justifications this Court had previously given for grand

jury secrecy, the court noted that the grand jury’s work

was complete, so “[t]here 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, [or] to safeguard unaccused or innocent

persons with secrecy.” Id. Moreover, the court noted

that it was

deal[ing] in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United

States. It would be difficult to conceive of a

more compelling need than that of this country

for an unswervingly fair inquiry based on all

the pertinent information.

Id. at 1230. Believing that these considerations might

even justify public disclosure, the court concluded that

at the very least they provided “ample basis for disclosure to a body that in this setting acts simply as another grand jury”—the House of Representatives. Id.

This was especially so given that the Committee had

“taken elaborate precautions to insure against unnecessary and inappropriate disclosure of these materials.” Id. In short, the court concluded that Congress

should be able to see this grand jury material.

The en banc D.C. Circuit affirmed the district

court’s decision and stated that it was “in general

agreement with” the district court’s handling of the

“question of the grand jury’s power to report.” Haldeman, 501 F.2d at 715. And earlier this year, a D.C.

Circuit panel again recognized the propriety of the release of the Nixon grand jury materials to the House

Judiciary Committee, clarifying that, in its view, those

materials were released under “the Rule 6 exception

for ‘judicial proceedings.’” McKeever, 920 F.3d at 847

n.3 (citing Haldeman, 501 F.2d at 717).

17

Similarly, in 1987, a federal court in Miami permitted the disclosure to the House Judiciary Committee of the record of a grand jury that indicted Judge

Alcee Hastings to further the Committee’s impeachment investigation into whether Hastings solicited a

bribe to influence a judicial decision. In re Grand Jury

Proceedings of Grand Jury No. 81-1 (Miami), 669 F.

Supp. 1072, 1073 (S.D. Fla. 1987) (“Miami Grand

Jury”). Specifically applying the Rule 6(e) judicial-proceedings exception, the court held that “[t]here can be

little doubt that an impeachment trial by the Senate is

a ‘judicial proceeding’ in every significant sense and

that a House investigation preliminary to impeachment is within the scope of the Rule.” Id. at 1075-76;

see id. at 1076 (noting that Article III, section 3 provides that “[t]he trial of all Crimes, except in Cases of

Impeachment, shall be by Jury,” and that Article I

uses the terms “cases of impeachment,” “try,” “convicted,” and “judgment” in reference to impeachment).

According to the court, “[t]he fact that senators rather

than Article III judges decide the case does not make

it any less judicial; it merely points to a jurisdictional

choice made by the framers for political and historical

reasons.” Id.; see In re Grand Jury Investigation of

Uranium Indus., No. 78-0173, 1979 WL 1661, at *7

(D.D.C. Aug. 16, 1979) (noting that a House impeachment investigation “certainly was preliminarily to or

in connection with a contemplated trial presided over

by the Chief Justice of the United States—very much

a judicial proceeding”). Having concluded that Rule

6(e) permitted disclosure to the House as part of an

impeachment inquiry, the court also declined to place

any limitations on the House’s access to the materials,

reasoning that “[i]t is within the province of the House

Committee to review all of the information, including

the grand jury record,” and that the “request of the

Chairman of the Committee on the Judiciary satisfies

18

the standard of particularized need for disclosure of

the record.” Miami Grand Jury, 669 F. Supp. at 107778.

Likewise, in 2010, a Louisiana district court approved the release of grand jury materials to the House

Judiciary Committee for use in its impeachment investigation of Judge G. Thomas Porteous, Jr. See H.R.

Rep. No. 111-427, at 8-10 (2010). The court reasoned

that the Committee had “an interest in conducting a

full and fair impeachment inquiry,” and for that reason “[d]isclosure of the requested documents [was]

warranted.” Order at 3, In Re: Grand Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No.

2:09-mc-04346-CVSG (E.D. La. Aug. 6, 2009) (Dkt. No.

10). Moreover, the court concluded that the request

was “not overly broad” because “[a]ny testimony or materials obtained by the grand jury or grand juries in

question that pertain to Judge Porteous are certainly

relevant to the scope of the Judiciary Committee’s inquiry.” Id. at 6. The Fifth Circuit summarily affirmed

that Order. Court Order, In Re: Grand Jury Proceeding, No. 09-30737 (5th Cir. Nov. 12, 2009).

Finally, in a set of cases applying the now-lapsed

independent counsel statute, several district courts

permitted the disclosure of grand jury materials to the

public, sometimes reserving sensitive materials for

only Congress. Under that statute, an independent

counsel, prior to his or her termination, was required

to submit a report to the Special Division of the court

“setting forth fully and completely a description of the

work of the independent counsel, including the disposition of all cases brought.” 28 U.S.C. § 594(h)(1)(B)

(2014). In multiple decisions, the D.C. Circuit approved the public release of those reports, even though

they contained grand jury matters. See, e.g., In re

19

Espy, 259 F.3d 725, 728-30 (D.C. Cir. 2001); In re

North, 16 F.3d 1234, 1242-45 (D.C. Cir. 1994).

Notably, in one case, the D.C. Circuit gave special

solicitude to Congress in light of its need for such materials. In In re Cisneros, the court held that most of a

report generated by an independent counsel concerning a former Secretary of Housing and Urban Development should be released to the public, but it held that

Section V of the report should be released to congressional leadership alone. 426 F.3d 409, 410-11 (D.C.

Cir. 2005). That section dealt with “investigations of

alleged obstructions of justice and tax-related matters,” id. at 412, which “did not result in indictments,

certainly fostered no trials, and concerned individuals

whose identities [had] not been generally disclosed to

the public,” only the grand jury, id. at 413. While the

court concluded that Section V should not be disclosed

to the public, it acknowledged that the report was “obviously a matter within the responsibility and concern

of the Congress” and therefore ordered that Section V

be transmitted “to appropriate officials of the Congress

for such distribution to other Members as they deem

necessary in the pursuit of congressional duties.” Id.

at 415.2

***

In short, there is a long history, beginning early in

the Republic and continuing to modern times, of Congress receiving grand jury materials in furtherance of

its impeachment function. As the next Section explains, the Committee’s request for grand jury

2 As the Committee noted in its Application in the district

court, in almost all of these cases, the Department of Justice advocated in favor of releasing grand jury materials to Congress to

aid congressional impeachment and other investigations. See Application of the Comm. on the Judiciary, supra, at 20-21 nn. 31-32.

20

materials in this case fits well within that long-standing tradition.

III. THE DISTRICT COURT ORDER AUTHORIZING THE RELEASE OF THE GRAND

JURY MATERIALS SHOULD BE UPHELD.

In this case, the House Judiciary Committee has

requested the portions of Special Counsel Mueller’s report that the Department of Justice redacted pursuant

to Rule 6(e), as well as any underlying grand jury transcripts or exhibits referenced in the portions of the report that were redacted and that are related to certain

actions of the President that the Committee is investigating. That request falls well within the historical

tradition of Congress receiving grand jury materials

pursuant to its impeachment function, and this Court

should affirm the decision of the court below.

Disclosure is permissible here because the House

continues to consider the impeachment of President

Trump. See Resp. Br. 12-13; see also H.R. Res. 660,

116th Cong., at 1 (2019) (Committee’s “ongoing investigation[]” is “part of the existing House of Representatives inquiry” into impeachment); H. R. Rep. No. 116346, at 159 n.928 (2019) (Committee “has continued

and will continue” its impeachment investigation concerning the Russia investigation). Moreover, the Committee has made the showing this Court has stated is

required when “[p]arties seek[] grand jury transcripts

under Rule 6(e)”: “the material they seek is needed to

avoid a possible injustice in another judicial proceeding,” “the need for disclosure is greater than the need

for continued secrecy,” and “their request is structured

to cover only material so needed.” Douglas Oil Co., 441

U.S. at 222.

First, failure to disclose the material the Committee is requesting would necessarily cause injustice.

21

The Special Counsel concluded that the President engaged in serious misconduct, and yet his report made

clear that the Department of Justice would not indict

the President based on long-standing Department policy prohibiting the indictment of a sitting President.

See 2 Mueller Report at 1 (“Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, . . . this Office accepted [the Office of Legal

Counsel’s] legal conclusion [that a sitting President

cannot be indicted] for the purpose of exercising prosecutorial jurisdiction.”); see also A Sitting President’s

Amenability to Indictment and Criminal Prosecution,

24 Op. O.L.C. 222, 222, 260 (2000). In light of that

policy, Mueller pointed to “constitutional processes for

addressing presidential misconduct”—referring, of

course, to impeachment. 2 Mueller Report at 1 & n.2.

It would be a miscarriage of justice if Congress were

prevented from viewing information plainly relevant

to the “constitutional processes for addressing presidential misconduct” simply because that evidence was

also presented to a grand jury.

Second, the need for disclosure is obviously greater

than the need for continued secrecy. The Committee

is carrying out one of its gravest duties: considering

the impeachment of a president. As the district court

explained when considering the disclosure of grand

jury information regarding President Nixon, “it should

not be forgotten that we deal in a matter of the most

critical moment to the Nation, an impeachment investigation involving the President of the United States.

It would be difficult to conceive of a more compelling

need than that of this country for an unswervingly fair

inquiry based on all pertinent information.” June 5,

1972 Grand Jury, 370 F. Supp. at 1230. And here the

Committee needs the information it has requested:

22

“[t]he redacted grand-jury material bears on whether

the President committed impeachable offenses, including by obstructing the Special Counsel’s investigation.” Resp. Br. 9; see Application of the Comm. on the

Judiciary, supra, at 21-22 (explaining how the redacted passages involve information that is critical to

the Committee’s inquiry).

On the flip side, the need for secrecy is lessened

given that the Committee seeks disclosure only to a

limited number of authorized individuals. As the

Committee itself has explained, it “issued protocols to

protect the confidentiality of any grand-jury material

obtained . . . based on those successfully used to protect grand-jury material disclosed to the House during

the investigation of President Nixon.” Resp. Br. 9.

Because the Committee has “taken elaborate precautions to insure against unnecessary and inappropriate

disclosure of these materials,” June 5, 1972 Grand

Jury, 370 F. Supp. at 1230, the considerations in favor

of secrecy are far less persuasive. See Douglas Oil Co.,

441 U.S. at 223 (“as the considerations justifying secrecy become less relevant, a party asserting a need for

grand jury transcripts will have a lesser burden in

showing justification”); cf. In re Cisneros, 426 F.3d at

415 (permitting the disclosure of certain more sensitive information only to Congress and not the broader

public). Moreover, the fact that the grand jury has

completed its work means that “[t]here 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, [or] to safeguard unaccused or innocent persons with secrecy.” June 5, 1972

Grand Jury, 370 F. Supp. at 1229.

Finally, the request covers only material the Committee needs: “information that the Special Counsel

deemed sufficiently significant to be included or

23

referenced in the Report itself; any grand jury materials that bear directly on or provide context regarding

the President’s state of mind; and grand jury materials

that describe actions taken by the central witness to

the Committee’s investigation, Don McGahn.” Application of the Comm. on the Judiciary, supra, at 50.

This request is eminently reasonable, especially given

the gravity of the subject matter that the Committee

is investigating. Cf. Miami Grand Jury, 669 F. Supp.

at 1077 (“It is within the province of the House Committee to review all of the information.” (emphasis

added)).

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgment of the court of appeals.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

ASHWIN P. PHATAK

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 21, 2020

* Counsel of Record