But what is good news for McCabe may be bad news for federal prosecutors—not just because their failure would be nearly unprecedented but also because the public disclosure of the proceedings of a grand jury is illegal, and anyone who is responsible for that disclosure is potentially subject to either civil or even criminal contempt proceedings.
Let’s unpack this a bit.
Federal Rule of Criminal Procedure 6(e) .. https://www.law.cornell.edu/rules/frcrmp/rule_6 .. is, in effect, a rule of grand jury secrecy. It provides, with certain limited exceptions, that grand jurors and attorneys for the government who are participating in a grand jury investigation may not disclose publicly any “matter occurring before the grand jury.”
In the main, this rule is a well-understood limitation on what government lawyers may say in public about the investigations they are conducting. It is part of the reason that “no comment” is the answer they give most frequently to inquiries from the press.
- First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. -
To that end, the law takes the secrecy requirement sufficiently seriously that “knowing violations” of the secrecy rule by government attorneys (or, less frequently, grand jurors themselves or court reporters) may be punished as contempt of court. As with all such contempts, the court has the option of choosing to allege a civil contempt or to make a criminal referral.
***
Cases of great public significance are no stranger to allegations of violations of the grand jury secrecy rules. To cite one example from a seemingly bygone era, then-D.C. Mayor Marion Barry brought a civil complaint against the U.S. government .. https://law.justia.com/cases/federal/appellate-courts/F2/865/1317/102224/ .. alleging that Justice Department attorneys had leaked significant grand jury material to the press, prejudicially impugning his reputation. In that case, the U.S. Court of Appeals for the D.C. Circuit set out the standard for such a complaint—to initiate a contempt proceeding, the alleged victim (here Barry) would need to make out a prima facie case that Rule 6(e) had been violated. As the court put it: “It is generally understood that a prima facie case of a violation of Rule 6(e) (2) is made when ‘the media reports disclosed information about “matters occurring before the grand jury” and indicated that the sources of the information included attorneys and agents of the Government.’”
If a prima facie case is made out, then the court, according to the Barry court:
- must conduct a “show cause” hearing to determine whether the Government was responsible for the pre-indictment publicity and whether any information disclosed by the Government concerned matters occurring before the grand jury. At this hearing, the burden shifts to the Government to come forward with evidence to negate the prima facie case. If after such a hearing the trial court determines that remedial action is warranted, it may order the Government to take steps to stop any publicity emanating from its employees. -
In addition to the equitable relief of ordering the government to modify its behavior, the court is also authorized to impose contempt sanctions including, in at least one instance, an order to dissolve a grand jury and prevent it from proceeding further.
***
The construction of a “show cause” hearing on alleged violations is one that is fraught with potential for embarrassing or disrupting the prosecution. Even if, in the end, the claim is found to lack merit, the mere fact that a putative defendant can secure such a hearing is often a significant development, both legally and in the political sphere.
One example (with which I am personally and painfully familiar) involved allegations made by President Clinton and his team that the Office of Independent Counsel (OIC) Kenneth Starr had leaked grand jury information to the press. Twice, these claims were the subject of appeal to the D.C. Circuit. I was on Starr’s team at the time, and handling these leak allegations was one of my most significant responsibilities. If you pull up the old briefs on the matter, you’ll find my name on many of them.
The first time .. https://law.justia.com/cases/federal/appellate-courts/F3/151/1059/497749/ , the district court had found that Clinton had made out a prima facie case and authorized a show cause proceeding that was to include subpoenas to the OIC, limited depositions, and, in the end, testimony before the district court by the federal prosecutors. That court decided that a fully adversarial proceeding was inappropriate (as it risked too greatly the disclosure of even more grand jury material), and it remanded the case to the district court to consider other methods of inquiry (including, for example, an ex parte or in camera proceeding). In the end, to resolve this matter the district court appointed a special master to conduct an independent inquiry. Unless I missed some recent development, that in camera report by the special master remains under seal to this day .. https://www.americanoversight.org/watchdog-asks-court-to-unseal-1999-report-on-leaks-by-independent-counsel-ken-starrs-office .
The second complaint against Starr was even more substantial .. https://caselaw.findlaw.com/us-dc-circuit/1277884.html , arising from an apparent leak of information about the potential that Starr was considering a post-impeachment indictment of the president. In this instance, the district court went so far as to purport to appoint the Justice Department as the prosecutor of a criminal contempt case against the OIC (as well as one individual member of the OIC). On appeal, the court resolved the matter by “differentiat[ing] between statements by a prosecutor’s office with respect to its own investigation, and statements by a prosecutor’s office with respect to a grand jury’s investigation.” Only the latter, it concluded, were within the ambit of the prohibition on disclosing “matters occurring before the grand jury.” Or, to put it more bluntly, a prosecutor saying, “I want to indict the president after impeachment” was not a statement about something that had occurred before the grand jury. By contrast, saying, “I presented an indictment to the grand jury” or, even, “I will present an indictment next week” would reveal such a matter. In the end, in this case, the D.C. Circuit concluded that the information in the article in question was more in the nature of an investigative matter than a grand jury matter and vacated the district court’s decision to proceed with criminal contempt.
***
So, what does this mean today? If the news is to be taken at face value, there is a possibility that the grand jury investigating Andrew McCabe has returned “no true bill.” Would a news report to that effect be prima facie evidence that the government has violated Rule 6(e)?
Maybe. To begin with, as I read the reporting, the return of no true bill has yet to be confirmed explicitly. We can infer that fact from the publicly reported promise of an imminent indictment, the meeting of the grand jury, and the failure of any true bill of indictment to be publicly returned. Such an event, if it has occurred, and if it were publicly disclosed would clearly satisfy the first prong of the prima facie test for a violation of Rule 6(e). The presentation of a bill of indictment and the vote on it would manifestly be matters that occurred before the grand jury.
To date, the news articles are likewise ambiguous as to the second prong of the prima facie case—that the information disclosed was disclosed by an attorney or agent of the government. None of the news articles that I’ve read make such a claim explicitly. To be sure, it is a reasonable inference that government attorneys are the source of this information, as they are the only people likely to have the information in the first place. And that inference is probably enough to make out a prima facie case, whose proof standard is, after all, rather low.
And so, even at this juncture, it seems to me that the chief judge supervising the grand jury has grounds to inquire if she wishes to do so. The case for doing so will be stronger still if (or when) a more well-sourced news report is published. And in that case, the show cause proceedings will be interesting indeed.
Support For President Donald Trump’s Impeachment Higher Than Nixon, Clinton | Hardball | MSNBC
"IMPT. DOJ Pursuit Of Trump Vendetta Against McCabe Takes Odd Turn | Rachel"
Oct 8, 2019
MSNBC
Steve Kornacki goes to the big board to break down the latest polling behind the impeachment inquiry. Support for President Trump’s impeachment is higher than when Presidents Nixon and Clinton were beginning to face their own impeachment inquiries. Aired on 10/7/19.
In favor of inquiry absolute majority. In favor of impeachment mid-40s. Nixon was 38% in favor of impeachment. Clinton started at 31%. When inquiry began Nixon's approval rating with his own party was 55%. Clinton's was 89%. Trump's today is 89%.
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Rachel Maddow On Possible 2nd Whistleblower & Impeachment | The Last Word | MSNBC
Oct 5, 2019
MSNBC
Rachel Maddow joins Lawrence O’Donnell to discuss the breaking news that a potential 2nd whistleblower with “more direct information” might come forward to corroborate the whistleblower complaint that launched an impeachment investigation. Aired on 10/04/19.
Every time your “pResident” tells a witness not to testify, what the people hear is, ”There’s a shitload of corruption I need all of you to keep your mouths shut about.”
Noted: Clinton apologized profusely, to the nation. Woodward, and the rest of us, expect Trump, win or lose, will not apologize.
Both Nixon and Clinton were in their 2nd term and weren't up for reelection.
After the "smoking gun" tapes came out Goldwater and the Senate Republican leaders went to see Nixon. Got out the whisky, and Nixon asked, "How many votes will i have in the Senate?" Goldwater said, "Mr. President, there are 4 votes for you. I am not one of them." The next day Nixon said he was going to resign.
Peter Bakers says we might have a similar result as in Clinton's case in the Senate, but this time their will be a court of appeal. 2020. Today few Republicans are defending what the president had done in asking a foreign country to help in the 2020 election. Still, they are attacking the process. The parties are much more polarized today, and Trump still has supporters. Woodward feels the Democrats should take it easy, broaden the inquiry to include other things Trump has done rather than focusing only on the Ukraine phone call. Big question will the facts matter, or will the president's lying maintain his base support.
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