WASHINGTON — The Justice Department is pushing for rule changes that would put a 50-year delay on when courts can consider releasing material from federal grand juries, according to documents and interviews, and would separately allow gag orders to be applied more broadly to witnesses.
While the recommendations were made during the Trump administration, President Joe Biden’s Justice Department is still seeking the changes, even as critics oppose what they say would be a significant expansion of secrecy around federal courts and investigations.
Grand jury secrecy is a cornerstone of American criminal justice. Much of what is said in grand juries — where citizens, guided by a prosecutor, consider whether to indict someone for alleged crimes — is never made public.
But judges occasionally rule that some other interest merits the release of grand jury information.
That happened in the Watergate case that led to Richard Nixon’s resignation as president, and it happened in special counsel Robert Mueller’s investigation into then-President Donald Trump, when a district court and an appeals court found that some grand jury material should be shared with Congress as it prepared for impeachment.
The Justice Department fought all the way to the Supreme Court to keep the Mueller grand jury material under wraps. The issue was declared moot after Congress completed impeachment proceedings; but if the proposed rules are enacted, they could push back any revelations about the Mueller grand jury until 2069.
If such a rule had been in place during Watergate, the grand jury material that was released to Congress in the early 1970s, or publicly in the last decade, might not have been available until 2023 or 2024.
The changes to federal grand jury rules — which prosecutors and defense lawyers often refer to as “6(e)” — were recommended in a memo last year from senior Justice Department lawyer Jonathan Wroblewski to Michael Garcia, a New York State appellate judge and former federal prosecutor who serves on the advisory committee of criminal rules.
Jennifer Stisa Granick, an attorney with the American Civil Liberties Union, has asked the rules committee to reject the proposal, writing that it “suggests an almost insurmountably high standard that would allow the release of only the most historically significant records decades after their immediate relevance. This increased secrecy would percolate through the entire legal system with damaging results.”
A Justice Department spokesman said the legal fight over the Mueller grand jury had no impact on the department’s desire to amend the rules, noting that during the Obama administration, then-Attorney General Eric Holder sought a similar change, albeit for a 30-year time period.
The department, spokesman Josh Stueve said, “has maintained support for the release of archival grand jury materials of great historical significance after several decades have passed and no living person or ongoing investigation will be prejudiced or harmed.”
He said the rule change would mean “greater openness, not less,” since some courts “have ruled that judges cannot release historically important grand jury material because there is no explicit authorization for such release in the rules.”
Stueve also said there are “sound public policy reasons” for grand jury secrecy, “including protecting the innocent.”
Prosecutors and defense lawyers zealously guard grand jury secrecy, often for different reasons; law enforcement officials don’t want sensitive investigations to fall apart because the suspects learn what prosecutors know, while lawyers for suspects and witnesses don’t want their clients’ reputations damaged, particularly in cases where no charges are ever filed.
In opposing the release of the Mueller grand jury material, Justice Department lawyers argued that it should be off-limits because impeachment did not qualify as a “judicial proceeding” — one of the few exceptions to grand jury secrecy. The department has suggested a Watergate-era court ruling was wrong in finding that impeachment proceedings are exempt from grand jury secrecy rules.
Now, the Justice Department is pushing to prevent judges from even considering the release of such material for 50 years.
“We believe an amendment to Rule 6(e) would be appropriate to authorize the release of grand jury records of ‘exceptional historical significance’ in certain circumstances after 50 years,” Wroblewski, the Justice Department official, wrote in the letter to the rules committee.
“[W]e now think 30 years is too short,” Wroblewski wrote, adding that Congress does not release “information involving personal data relating to a specific living person” for 50 years. “We also no longer believe that Rule 6(e) materials should ever be presumptively available to the public,” he wrote. “Grand jury secrecy should be preserved except in the most extraordinary cases of historical value.”
The rules committee is part of a lengthy process of considering and finalizing rule changes that ultimately goes through the Supreme Court and can be altered by Congress.
The Justice Department has also proposed a second change to grand jury rules — explicitly allowing prosecutors to get nondisclosure orders, also called gag orders, to prevent witnesses from sharing details of grand jury investigations.
Prosecutors frequently obtain such gag orders for cases involving internet and financial services companies. But not every federal court agrees that such orders should be imposed, and the new proposal would make it possible for prosecutors to extend such gag orders well beyond those industries to any grand jury witness they wanted to prevent from talking.
The letter says the change is necessary “to protect ongoing investigations,” and proposes language that would allow prosecutors to impose 90-day gag orders that could be extended for longer if deemed necessary.
Such a change could generate more criticism for the department, which has already faced an outcry over its use of gag orders when seizing reporters’ phone or email records as part of leak investigations. (On Monday, Attorney General Merrick Garland announced the Justice Department would no longer seek reporters’ communication records except in very limited, specific circumstances.)
Orin Kerr, a law professor at the University of California at Berkeley, told the “6(e)” subcommittee of the rules panel in April that there can be good reasons for some nondisclosure orders but that the Justice Department proposal was “too broad.”
“It’s one thing to have a standard for nondisclosure on internet service providers who are third parties and don’t really have any interest in disclosing, and another thing to have a rule that applies to anyone and everyone,” he said. “It’s not clear how often the government would use this, but whenever you adopt a clear rule allowing something, it’s always possible” it will increase the number of such gag orders.
Granick, the ACLU lawyer, also objected to the gag-order proposal, writing to the panel last week that expanding “the use of already problematic gag orders would interfere with congressional and judicial oversight” of the Justice Department.