Politico and the New York Times had sought to unseal proceedings into what they called “urgent matters of national significance” concerning Trump’s attempt to prevent cooperation with the investigation into efforts to unlawfully interfere with the transfer of power from him to Joe Biden after the 2020 election. The probe includes the Jan. 6, 2021, attack on the Capitol and efforts by supporters, including some of Trump’s attorneys, to substitute Trump allies for certified electors from some states Biden won.
Howell opened her 32-page opinion with citations to a litany of court precedents upholding transparency as critical to the integrity and legitimacy of the judicial system and decrying the creation of “secret law” as anathema to democracy. But Howell said a controversial 2019 decision by the federal appeals court in Washington greatly reducing judges’ authority to disclose grand jury matters in favor of prosecutors meant Trump matters would remain secret “for now, and perhaps forever.”
“If public interest in a significant and historical event or high-level government officials could serve as the sole ground to justify disclosure of grand jury materials in exceptional circumstances, petitioners’ case here would be exceptionally strong,” Howell wrote. “Unfortunately for petitioners, that is not the standard for disclosure.”
Howell’s ruling stemming from grand jury subpoenas issued last year to two aides of former vice president Mike Pence came as a raft of top Trump officials this winter have received similar summons and invoked executive privilege, attorney-client privilege or other constitutionally grounded legal arguments to avoid testifying, including Pence himself, former Trump chief of staff Mark Meadows, and a number of Trump’s attorneys. President Biden and his Justice Department have generally opposed such efforts.
Still, the Justice Department argued that because other parties — such as Trump — and witnesses had not publicly acknowledged the grand jury proceedings and the proceeding began before the government acknowledged the existence of the special counsel investigation, no unsealing was authorized.
Howell as chief judge has exclusive jurisdiction over all federal grand jury matters in Washington, and while she is set to turn over that responsibility to a successor next month, her ruling is likely to hold for matters under investigation by special counsel Jack Smith — including the post 2020 election period and the retention of classified documents and possible obstruction at Trump’s home in Florida.
The news organizations filed a suit in October after a legal fight spilled into the open regarding grand jury testimony by former Pence aides, Marc Short, his chief of staff as vice president, and attorney Greg Jacob.
Both Short and Jacob had windows into key events on Jan. 6, as both were with Pence at the Capitol that day, and later testified with Pence’s approval before the House Jan. 6 committee. Jacob also told the committee that two days before the riot, private Trump attorney John Eastman conceded that the plot to have Pence help overturn the election was illegal.
Last fall, the U.S. Circuit Court of Appeals for the District of Columbia Circuit refused to postpone grand jury testimony by Short after Howell issued a sealed ruling in September apparently granting a government motion to compel his appearance, ruling that prosecutors had overcome Trump’s claim of confidentiality by showing Short likely possessed information important to the Jan. 6 investigation not available from other sources.
The suing news outlets said they were not seeking to delve into the facts or direction of the grand jury investigation or to identify witnesses or jurors, which are subject to understandable secrecy. Instead they sought to open spinoff or “ancillary” proceedings creating new law regarding the historically important question of limits of the confidentiality of Oval Office communications.
Trump’s attorneys have defended executive privilege claims, warning that rulings to the contrary could damage the presidency by weakening the ability of chief executives to receive unvarnished advice from their inner circle. Allowing a sitting president to waive executive privilege of a predecessor unilaterally also could politicize and defeat the purpose of the privilege, they said.
Federal judges in Washington over the decades have released grand jury materials in landmark cases from former president Richard M. Nixon’s grand jury testimony and other materials in the investigation of the Watergate break-in that led to his resignation, to fights over subpoenas issued by special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election.
But in McKeever v. Barr, the D.C. Circuit in April 2019 struck down judges’ “inherent authority” to release such materials when the public interest outweighs the need for secrecy, finding such interests however significant value fall outside the limited exceptions to grand jury secrecy.
Howell warned that the D.C. Circuit’s ruling created a split with other U.S. appeals courts and conflicted with another federal criminal rule permitting courts to unseal grand jury orders when secrecy was no longer “necessary,” and empowered prosecutors as gatekeepers to the detriment of the public’s ability to “scrutinize government activities at this critical stage of criminal investigations.”
Still, Howell said, “The result is that judicial decisions and other records in a grand jury investigation of significant public interest and national importance may remain under seal for years if not forever.”
A Justice Department spokesman declined comment.
In a statement, New York Times spokeswoman Danielle Rhoades Ha said, “We are disappointed in the ruling. We will make a decision about whether to pursue further legal steps once we’ve had time to process the opinion that sets forth the rationale for the decision.”
A Politico spokesman said it was also evaluating next steps, and “is committed to the principle that a government of, for, and by the people is transparent with the people on such an important matter.”
