Attorney General William Barr testified at length last week, in the House and the Senate, about his ongoing process of redacting the Mueller Report in anticipation of sharing it with Congress and the public this Thursday. There was nothing especially new or groundbreaking in those parts of his testimony. Barr did, however, say several things about redactions that weren’t quite right, or that raised concerns that are worth addressing as DOJ finalizes its redactions. (I discussed most of what follows at greater length in my April 6 post.)
1. Barr testified that he’s “color-coding” the redactions to indicate the basis for each of them. When it comes to information that’s redacted because it allegedly reveals “a matter occurring before the grand jury”–something a government lawyer generally may not disclose, per Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure–such color-coding might create something of a problem if Barr adopts too broad a view of what counts as “matter[s] occurring before the grand jury.”
As I explained in my earlier post, all that Rule 6(e) prohibits is the disclosure of information that “would reveal something about the grand jury’s identity, investigation, or deliberation.” Labow v. DOJ, 831 F.3d 523, 529 (D.C. Cir. 2016); accord Bartko v. DOJ, 898 F.3d 51, 73 (D.C. Cir. 2018). Accordingly, a government attorney may, for example, disclose a document subpoenaed by a grand jury, or describe or cite to such a document, as long as he or she does so in a manner that doesn’t reveal that a grand jury subpoenaed or considered that document. And it’s quite possible that most of the evidence discussed in the Mueller report can be disclosed — or can at a minimum be cited as support for Mueller’s findings — without revealing whether a grand jury subpoenaed or considered it. And where that’s the case, Rule 6(e) does not require a redaction.
If Barr mistakenly redacts such information and also identifies it (by, e.g., color-coding) as “Rule 6(e) material,” he would then be effectively acknowledging something that otherwise wouldn’t have been apparent, namely, that the grand jury considered the redacted information. And then, if and when that information is unredacted–e.g., if a FOIA court concludes that Barr should never have redacted it in the first instance because it wouldn’t have revealed anything about the grand jury’s identity, investigations, or deliberations–its disclosure will then cause the harms that Rule 6(e) is designed to prevent, in a way it would not have done if Barr hadn’t mistakenly redacted it in the first instance. See Labow, 831 F.3d at 530 (“Of course, if the documents are now belatedly released, it might be apparent that they had been subpoenaed by a grand jury given that the potential connection with a grand jury is now known. That fact, however, should not bar disclosure.”)
Barr therefore should not err on the side of assuming Rule 6(e)’s application in cases where it doesn’t clearly apply. He should, in particular, be very careful not to redact information from the Mueller report merely because it refers to documents or testimony that the grand jury considered (or subpoenaed), in circumstances (e.g., citations in support of Mueller’s findings) where such grand jury consideration would not be apparent from the reference in the report itself.
2. Barr testified that with respect to information he redacts from the public version of the report, he’d be open to sharing such information with particular congressional committees, in a confidential setting, if the committees can identify a way to do so that would be lawful.
DOJ can lawfully share all of the redactions other than Rule 6(e) grand jury matters with congressional committees under conditions that will help prevent public dissemination–indeed, that’s the sort of thing the executive branch does quite routinely, and that it presumably must do when DOJ/FBI soon brief the intelligence committees on the counterintelligence aspects of Mueller’s investigation.
And as for Rule 6(e) redactions, DOJ can share such information with at least the members of certain congressional committees, pursuant to one of the exceptions in Rule 6(e) itself. As I wrote earlier:
The second sentence of Rule 6(e)(3)(D) — an exception Congress added in 2004 — provides that “[a]n attorney for the government may … disclose any grand-jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.”
As far as I know there are no judicial decisions discussing who counts as an “appropriate” federal official under this exception. Based upon its plain words, however, the exception would appear to comfortably cover the members of the congressional intelligence committees, at a minimum (as well as the Senate and House leadership who are part of the so-called “Gang of Eight”), whose functions certainly include evaluating how the U.S. should “prevent or respond to” Russia’s “grave hostile threats.” It might also cover, e.g., the members of the judiciary and foreign affairs committees, assuming that they, too, are working to prevent or respond to the Russian threats. …
If this reading is correct, then Barr can include “matter[s] occurring before the grand jury” in the version of the Mueller report he conveys to some congressional committees, even if (perhaps) not to the rest of Congress. If he does so, however, the members of those committees would not be free to disclose the “matter[s] occurring before the grand jury” to the public, because Rule 6 expressly provides that “[a]ny official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”
3. Senator Leahy asked Barr to explain why Rule 6(e) was such an obstacle in light of the fact that Independent Counsel Ken Starr shared with Congress his report about Monica Lewinsky–which was, of course, chock-full of information specifically identified as grand jury matters. Barr responded to Leahy that the Independent Counsel statute (the Ethics in Government Act) itself authorized such disclosure, i.e., that it created an exception to Rule 6(e).
That’s incorrect. To be sure, Starr himself thought that a statutory disclosure obligation imposed upon the Independent Counsel under 28 U.S.C. §595(c) superseded the prohibition of Rule 6(e) (see note 18 of his report), but the Special Division (Judges Sentelle, Butzner and Fay) had already specifically held otherwise. See In re North, 16 F.3d 1234, 1243-44 (D.C. Cir. (Spec. Div.) 1994). Accordingly, when Starr petitioned the Special Division to authorize him to share his report with Congress, the Special Division, per Judge Sentelle, granted that application on the basis of another exception in Rule 6(e) itself, which affords a court the power to authorize disclosure of information revealing grand-jury matters “preliminarily to or in connection with a judicial proceeding.” (This is now Rule 6(e)(3)(E)(i)); back in 1998 it was Rule 6(e)(3)(C)(i).) Apparently the “judicial proceeding” Judge Sentelle had in mind was the House’s potential consideration of articles of impeachment against President Clinton, even though the House had not yet even authorized an investigation concerning possible impeachment.
As I wrote in my earlier post, it’s not clear to me that Judges Sentelle, et al. were right to authorize Starr to disclose his report. The Supreme Court had already held, in United States v. Baggot, 463 U.S. 476, 480 (1983), that the proceeding in question must be “pending or anticipated” and that it’s “not enough to show that some [proceeding] may emerge from the matter in which the material is to be used, or even that [a proceeding] is factually likely to emerge” (emphasis added).
Be that as it may, however, the example of the Starr Report cannot be distinguished away as easily as Attorney General Barr suggested in his testimony last week. If Barr insists that the “judicial proceeding” exception is inapplicable here, it would mean that–contra Judges Sentelle, Butzner and Fay–it was unlawful for Ken Starr to submit his report to Congress.
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|German far-right terror suspects detained in overnight raids | Germany| News and in-depth reporting from Berlin and beyond | DW|
|Mon, 01 Oct 2018 11:21:46 -0400
Some 100 police officers raided several properties in the German states of Saxony and Bavaria early on Monday morning as part of an investigation into a far-right terror group called “Revolution Chemnitz,” named after the eastern German city that was the scene of recent far-right demonstrations following the killing of a German man allegedly by migrants.
The six men arrested, aged between 20 and 30, are suspected of forming a terrorist organization under the leadership of 31-year-old Christian K., who had already been arrested on September 14.
According to Germany’s state prosecutors, the men were planning attacks on “foreigners” and people who did not share their political views. Batons, an air-rifle, and computer hard drives were seized during the raids.
Investigators said the group had tried to acquire semi-automatic firearms, and on September 14 five of the seven suspects, including Christian K., had taken part in a coordinated attack on foreigners in Chemnitz using glass bottles, weighted knuckle gloves, and an electroshock weapon. One man was injured during the incident, which resulted in a number of arrests.
Investigators said there was evidence this had been a “practice run” for a larger attack planned for October 3, a national holiday celebrating Germany’s reunification.
The prosecutors’ statement said the six men were all members of the “hooligan, skinhead, and neo-Nazi scene” in the Chemnitz area, and all considered themselves leading members of the far-right scene in Saxony. Prosecutors believe the group’s aim was “the overthrow of the democratic rule of law” based on their right-wing extremist ideology.
All seven men are due to be arraigned in a federal court on Monday and Tuesday. A spokeswoman for the federal prosecutors, Frauke Köhler, said on Monday that they would be joining forces with Saxony counterparts to investigate “far-right structures” in the state.
Köhler said prosecutors had decided to upgrade the investigation from a criminal to a terrorist one after assessing the group’s internal communications, which showed they had been planning attacks and working to acquire weapons.
Read more: Lessons from Chemnitz – awash in anxiety
The eastern German city of Chemnitz was the scene of several confrontations in late August and early September, after a German-Cuban man died from stab wounds following a fight with two asylum-seekers from Syria and Iraq. The Iraqi suspect was later released.
The death triggered a week of occasionally violent far-right demos and counter-demos, culminating in an anti-racism rock concert that drew a crowd of over 60,000 people. Köhler said the investigators had not yet established whether the suspects were involved in the far-right demos in Chemnitz.
The events have reignited tensions in Germany over the influx of refugees three years ago, with violence involving migrants attracting massive media attention and subsequent political fall-out: the head of Germany’s domestic intelligence agency, Hans-Georg Maassen, lost his job after publicly questioning the authenticity of videos showing migrants being attacked in Chemnitz.
Germany’s failure to address the threat of neo-Nazi violence was brought into sharp relief earlier this year with the end of the five-year trial of Beate Zschäpe, a member of the National Socialist Underground (NSU), a neo-Nazi cell that murdered at least ten people over an eight-year period in the 2000s. Zschäpe was sentenced to life in prison in July.
The NSU remained undetected largely because of systemic investigation failures by German police and intelligence agencies.
On Monday, German Justice Minister Katarina Barley said, “We learned from the crimes of the NSU that we have to be much more alert than before. That goes for the security forces and the judiciary, but also for the whole of society.”
Interior Minister Horst Seehofer welcomed the arrests. “This is the realization of our principle, ‘zero tolerance towards right-wing radicals and far-right extremists’,” he told DPA news agency in Munich. “The threat of terrorism remains high in Germany, which means that we have to be prepared for an attack at any time.”
Read more: Violence in Chemnitz: A timeline of events
Angry mobs take to the streets in Germany
|Accidents Review: Police investigate shooting at Walmart in Hobart, Indiana – WLS-TV – 8:42 AM 10/1/2018 | FBI News Review|
|Mon, 01 Oct 2018 09:20:32 -0400