Appeals court affirms judges can release secret grand jury records

https://www.politico.com/blogs/under-the-radar/2019/02/11/appeals-court-release-secret-grand-jury-records-1164440

Appeals court affirms judges can release secret grand jury records

By JOSH GERSTEIN

02/11/2019 06:49 PM EST

An Atlanta-based federal appeals court, acting in the case of a 75-year-old Georgia lynching, has reaffirmed the rights of federal judges to release grand jury records that are typically kept secret.

The decision Monday from a split 11th Circuit panel came in one of a pair of cases that legal experts are closely watching for a potential impact on the Justice Department’s latitude to make public the results of special counsel Robert Mueller’s investigation into alleged ties between the Trump campaign and Russia.

An 11th Circuit ruling is unlikely to serve as a binding precedent for any aspect of Mueller’s D.C.-based inquiry, but backers of the investigation have been eager for courts to signal that grand jury materials can be released in extraordinary cases and that the list of explicit exceptions in federal court rules is not all-inclusive.

However, one judge on the three-judge appeals court panel sharply dissented from the ruling, prompting one lawyer involved to speculate that the issue may wind up at the Supreme Court in the near future.

The majority on the 11th Circuit panel rejected the Justice Department’s efforts to overturn a District Court judge’s ruling that granted the historian and author Anthony Pitch’s request for access to records about the federal grand jury inquiry into the murders of two African-American couples in Walton County, Ga., in 1946.

The panel concluded that it lacked the authority to set aside a 1984 ruling from the same federal appeals court upholding a judge’s decision that he has “inherent authority” to let a judicial discipline committee see grand jury records pertaining to then-Judge Alcee Hastings, who was later impeached and removed from office. Hastings is now a Democratic congressman from Florida.

In the new decision, Judge Charles Wilson said the 1946 lynching merited added attention because of its role in U.S. history.

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“The Moore’s Ford Lynching is clearly an event of exceptional historical significance,” Wilson wrote, joined by Judge Adalberto Jordan.

“Compared to the journalist or the family member of a victim that seeks access to the details of a salacious unsolved crime, the Moore’s Ford Lynching is historically significant because it is closely tied to the national civil rights movement,” added Wilson, an appointee of President Bill Clinton. “Many consider it to be the last mass lynching in American history. There has been, and continues to be, national media attention and widespread public interest in the murders.”

Wilson noted the Justice Department’s argument that a 1996 Supreme Court decision foreclosed the notion that judges have inherent authority to release grand jury records. However, he said that decision didn’t deal directly with grand jury secrecy so was not a basis to overturn the longstanding 11th Circuit precedent allowing such releases.

An Ohio-based district court judge serving on the appeals court panel, James Graham, warned that the ruling would create a multitude of problems by eroding the tradition of keeping grand jury testimony and deliberations secret.

“I believe that judges should not be so bold as to grant themselves the authority to decide that the historical significance exception should exist and what the criteria should be,” Graham wrote.

Graham said continuing interest in the lynching was a reason to maintain secrecy about the investigation, not invade it, even if those directly involved are long dead.

“That an event has exceptional historical significance cuts both ways. With the principal parties having passed away and the investigation gone cold, one might conclude the matter is stale and the need for secrecy over. Yet, exceptional significance suggests a continued interest in, and impact from, the event,” the judge wrote.

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“The vitality of the community’s continued interest raises possible repercussions for the living descendants and relatives of those individuals whom the grand jury records will identify as being suspects, witnesses and grand jurors. The modern public rightly views the lynching and failure to indict as a horrific injustice, and many perceive it to have been the work of the Ku Klux Klan…. I would hold that the reputational interests protected by [the secrecy rule] include those of subsequent generations,” added Graham, who was appointed by President Ronald Reagan.
Wielding Graham’s dissent, the Justice Department could ask the full bench of the 11th Circuit to take up the issue or seek review at the Supreme Court. A department spokesman declined to comment on Monday’s ruling.

The lawyer pressing for release of the records on the lynching investigation, Joe Bell Jr. of Rockaway, N.J., said on Monday he believed it is possible the fight could wind up at the Supreme Court.

“I think it might lead to a decision from the highest court in the country setting forth the factors for release of grand jury material,” Bell said. “There has to be some consistency across the country.”

Bell hailed the majority’s ruling said the facts around the investigation into the 1946 lynching deserved to come to light.

“I’m ecstatic about the decision,” the attorney told POLITICO. “It’s been a five-year quest to seek the record: 2,790 people were interviewed, 106 appeared before the grand jury. Four people were murdered in a barbaric fashion and not one person was indicted or brought to justice.”

Pitch said on Monday he is “impatient” to get the records.

“We are on the edge of nearing full disclosure of a shocking case of a rigged jury, and testimony which an FBI observer at the time said was full of lies,” the author added via email.

Jordan, one of the judges in the majority, wrote a concurring opinion saying that he was initially inclined to favor overturning the 11th Circuit’s 1984 precedent because it seemed “too open-ended.”

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However, Jordan said he ultimately concluded that courts had acted responsibly when wrestling with requests for disclosure of grand jury secrets for historical purposes. The Obama appointee also noted that in 2011 the Justice Department proposed revising the grand jury rules to create an exception for material of historical interest, but that judges and other legal experts concluded that was unnecessary.

Several other circuits, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

However, the St. Louis-based 8th Circuit indicated in a 2009 case stemming from independent counsel Ken Starr’s Whitewater investigation that courts don’t have authority beyond that specifically laid out in the rule.

The D.C. Circuit is currently mulling a request for disclosure of grand jury records about the investigation into the 1956 disappearance of a Columbia University lecturer who was critical of the government of the Dominican Republic at the time. When the case was argued in September, at least one judge seemed to view it as unwise for the courts to make disclosures untethered to any formal authority.

Even if the courts soured entirely on disclosures of materials of historical interest, Mueller’s office might still have a mechanism to get permission to release grand jury material in connection with his expected report. One explicit exception to grand jury secrecy covers disclosures related to judicial proceedings.

During Watergate, a D.C. Circuit ruling appeared to bless the release of grand jury material sought by Congress in connection with a potential impeachment of President Richard Nixon. The District Court judge overseeing the jury said the impeachment process amounted to the kind of judicial proceeding in which such releases were authorized.

CORRECTION: This story has been corrected to reflect the 11th circuit’s split decision on the release of grand jury records.

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