Chief Judge Boasberg on Politico's Request for Grand Jury Records Related to FBI Director Kash Patel's 2023 Appearance

A short excerpt from yesterday’s longish decision by Chief Judge James Boasberg (D.D.C.) in In re Application of Politico LLC for Access to Judicial Records Ancillary to Certain Grand Jury Proceedings Concerning Kashyap Patel:

In 2023, a grand jury in this district indicted then-former President Donald J. Trump and an associate for mishandling classified documents and impeding the ensuing investigation. In the course of its investigation leading up to the indictment, the grand jury subpoenaed Kashyap Patel, who now serves as Director of the Federal Bureau of Investigation. As both the Government and Patel himself later revealed, he resisted the subpoena before this Court’s predecessor ordered him to testify—which he eventually did under a grant of immunity.

Earlier this year, the news organization Politico filed an Application seeking access to the court records generated by Patel’s unsuccessful efforts to contest the subpoena. The Government subsequently released redacted versions of these records, but Politico now seeks further unsealing. Contrary to Politico’s contentions, the Government has correctly articulated the categories of information related to Patel’s testimony that can—and cannot—be disclosed. Even by those terms, however, the Government’s proposed redactions appear to the Court to be overbroad. It will therefore order the Government to propose a new set of redactions that map onto the categories it acknowledges can be divulged or justify why the existing redactions are appropriately narrow….

In general, “the grand jury context presents an unusual setting where privacy and secrecy are the norm.” Witnesses “enter the grand jury room alone …. No judge presides and none is present.” Access to grand-jury materials turns on Federal Rule of Criminal Procedure 6(e)(2), which dictates that “[o]ther than witnesses, each person present … is forbidden from disclosing ‘matters occurring before the grand jury.’” This arrangement “safeguards vital interests,” including “(1) preserving the willingness and candor of witnesses called before the grand jury; (2) not alerting the target of an investigation who might otherwise flee or interfere with the grand jury; and (3) preserving the rights of a suspect who might later be exonerated.”

Through Federal Rule of Criminal Procedure 6(e), Congress “codifie[d] the traditional rule of grand jury secrecy.” In this Circuit, a court lacks any “inherent,” freestanding “authority” to release matters occurring before the grand jury beyond what Rule 6(e) permits….

The grand jury’s business occasionally calls for “judicial proceedings relating to,” but “at arm’s length” from, the grand jury itself, including to resolve a witness’s “motion to … quash [a] subpoena.” Records of such proceedings ancillary to the grand jury’s work are not themselves subject to grand-jury secrecy but are instead governed by Rule 6(e)(6), which requires that “[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.” Although Rule 6(e)(6) displaces any First Amendment or common-law right of access to documents in ancillary proceedings, the Rule allows for their release once sealing them is no longer “necessary” to protect grand-jury secrets.

In assessing the extent of such necessity, the Circuit has explained that Rule 6(e)(6)’s protection of “a matter occurring before a grand jury” encompasses “not only what has occurred and what is occurring, but also what is likely to occur” before that body. The Rule therefore protects information in ancillary documents that reveals “‘the identities of witnesses or jurors, the substance of testimony’ as well as actual transcripts, ‘the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.’”Although Rule 6(e)(6) protection “does not create a type of secrecy which is waived” as soon as “public disclosure occurs,” once “information is sufficiently widely known[,] … it has lost its character as Rule 6(e) material.” The Rule’s secrecy requirements therefore yield only “when there is no secrecy left to protect.” …

This Court’s Local Criminal Rules set out a mechanism for releasing documents in ancillary proceedings. Rule 6.1 provides that “[p]apers, orders and transcripts of hearings” in proceedings ancillary to the grand jury “or portions thereof[ ] may be made public by the Court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.” …

[T]he Government has already disclosed redacted versions of the opinions and orders concerning Patel’s efforts to contest the grand-jury subpoena issued to him. Politico nonetheless presses two points. First, it argues that the redactions exceed what is necessary to protect grand-jury secrecy under Rule 6(e) because disclosures here should not be limited—as the Government maintains—to what has already been revealed by the Special Counsel or by Patel in his congressional testimony. Second, the news organization contends that, in any event, it has a standalone First Amendment right to access those documents that supersedes any secrecy strictures imposed by Rule 6(e).

The Court disagrees on both scores and concludes that the Government is correct that the scope of releases here must hew only to what has already been publicly disclosed by the Special Counsel and by Patel. The Court finds, however, that those redactions appear to be overbroad in certain places. It will therefore order the Government to submit a new set of proposed redactions consistent with this Opinion or explain why it believes that the current redactions are still somehow justified.

In the sections below, the Court first addresses to what degree any issues relating to Patel’s grand-jury testimony have been disclosed such that they lose their secrecy protection. It then turns to whether the Government’s redactions are sufficiently narrow….

Read the full decision for more details.

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