Will we ever see ‘Mueller report’?

cases. Perhaps more importantly, much of any “Mueller report” would almost inevitably reveal materials presented during the grand jury proceedings. Yet federal law dictates that grand jury proceedings are secret. There are exceptions. Grand jury materials, for example, such as testimony and documents can be revealed in connection with a judicial proceeding at the request of the government, for state or Indian tribal law enforcement purposes, attorney disbarment proceedings or in connection with a violation of military criminal law. But they can’t be revealed to Congress or the public unless under these exceptions. The Department of Justice has vigorously opposed, in court, efforts by Congress to obtain such materials. In connection with the congressional investigation of the E.F. Hutton mail and wire fraud case in the 1980s, a congressional committee subpoenaed records that had been reviewed by the grand jury and the Department of Justice filed an action to prevent disclosure. Grand jury records and prosecutors’ decisions about individual cases are shielded from public view to protect those who may have been investigated but not charged. The press conference about the investigation into Hillary Clinton’s emails held by former FBI Director James Comey in July 2016 was widely criticized by former Department of Justice officials and prosecutors of both parties for deviating from this policy. Comey acknowledged he was departing from normal procedure. Rod Rosenstein, the deputy attorney general, explained the policy best. Comey “laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook case example of what prosecutors…are taught not to do.” Given all these limitations, in the words of NYU professor and legal ethicist Stephen Gillers, the prosecutor has two choices: “Indict or shut up.” Finally, there is the Watergate precedent. The grand jury investigating Watergate prepared a sealed report, with assistance from special counsel Leon Jaworski, and requested permission from the court to release it to the House Judiciary Committee. The committee had requested such a report as necessary for its impeachment inquiry into crimes Nixon was alleged to have committed related to the Watergate burglary. The court determined that Rule 6(e) permitted transmission to the House, despite its restrictions on disclosure and no unambiguous exception for disclosure to Congress. Nixon did not challenge the decision. The public did not, however, see it for decades. It remained sealed until 2018, when a judge released most of it in response to a lawsuit. The release of the Watergate grand jury’s report happened under a narrow and specific set of circumstances related to a House committee’s impeachment investigation. It remains a serious legal question whether release to Congress of the Mueller grand jury’s deliberations would be barred by the law. No such House proceeding is underway. And there are a lot of “ifs” that would apply were such a committee to request access to any Mueller grand jury report: Even if impeachment of Trump were to be considered by the House, if the committee requested grand jury records, if the grand jury wanted to provide the House with testimony and if a judge allowed it, it is unlikely that Trump would respond as Nixon did and fail to appeal the decision. Of course, Congress could attempt to subpoena the report. That would undoubtedly produce prolonged litigation. None of this is to say that the “Mueller report” will not ultimately see the light of day. Rather, there are significant legal and procedural hurdles to overcome in making it public and no clear precedent which can be relied on to predict such an outcome. The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.