Business Crimes Hotline

To Release or Not Release Grand Jury Documents? The D.C. Circuit Says No.

In a decision that some believe may have massive implications for the release of the Mueller Report, the D.C. Circuit recently ruled that courts lack discretion to release documents provided to grand juries.

The split 2:1 decision dealt with an investigation from 1957, that of the disappearance of a political activist and Columbia University professor, Jesus de Galidez. Mr. Galindez's disappearance and death is the subject of an upcoming book by Stuart McKeever, a former attorney turned non-fiction writer. Mr. McKeever sought the documents from the initial grand jury investigation into Mr. Galindez's case for use in his next publication, and petitioned a lower court for their release. The release had been denied for being overly broad in its scope. In denying the request, however, the district court noted that it had the inherent authority to disclose these and other grand jury records in cases of historical significant. The Justice Department Appealed.

In ruling for the Justice Department, the D.C. Circuit asserted that courts are bound to maintain the secrecy of grand juries unless the federal rules of civil procedure explicitly allowed for disclosure. Cautioning against district courts making decisions based on their own interpretations of public policy and historical significance would “render the detailed list of exceptions merely precatory and impermissibly enable the  to 'circumvent' or 'disregard' a Federal Rule of Criminal Procedure”, wrote Judges Ginsburg and Katsas. Judge Srinivasan however, disagreed, citing precedent allowing for the release of Watergate documents based on the district court's exercise of discretion.

The ruling may come into the spotlight as groups lobby for the release of Special Counsel Mueller's report and the grand jury records from the investigation. While this particular decision may still be appealed, the decision raises obstacles for those who would like greater insight into the grand jury process.

— Surya Kundu, Mayer Brown