We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ACCESS TO GRAND JURY RECORDS ISSUE BEING URGED AT SUPREME COURT

In an April 8, 2019, post, I reported on a U.S. Court of Appeals for the District of Columbia Circuit decision denying some 60-year old grand jury records sought by historian Stuart McKeever for a book he was writing. His request did not fit any of the reasons for disclosure specified in Federal Rule of Criminal Procedure 6(e)(2)(B), but Stuart argued that beyond the limitations of the rule, the district court had “inherent authority” to disclose historically significant grand jury matters. The district court agreed, but the D.C. Circuit reversed.

Last week, Stuart filed a petition for writ of certiorari with the Supreme Court, represented by the D.C. office of big-law firm Latham & Watkins. What makes the petition likelier to be granted is interest already being shown by the House Judiciary Committee, which is fighting to see the grand jury transcripts from the Mueller investigation by advancing the same argument. Like Stuart McKeever, the House demand for records cannot be pigeon-holed into any permissible use subsection of F.R.Crim.P. 6(e)(2)(B). So, like Stuart, the Judiciary Committee is arguing that the court had the inherent authority to release the records.

A Supreme Court decision finding that courts had inherent authority to release grand jury records could benefit inmates seeking grand jury records for post-conviction proceedings. A decision on the petition for certiorari will not come until late this year.

McKeever v. Barr, Case No. 19-307 (Supreme Court, filed Sept. 5, 2019)

National Law Journal, Justices Could Decide If Judges Have Power to Release Grand Jury Records (Sept. 6)

– Thomas L. Root