Thread by @JMHendersonSr

The @rcfp (Reporters' Committee on Freedom of the Press) will not like today's decision in #McKeevervBarr. "Because the district court has no authority outside Rule 6(e) to disclose grand jury matter, the order of the district court denying McKeever’s petition is Affirmed."

The #McKeever decision rejects the notion that a federal district court can devise new reasons for grand jury disclosures, and binds those courts to the federal rules of criminal procedure. You can read the appeals court's decision here: cadc.uscourts.gov/internet/opini…

The Reporters' Committee's application for an order unsealing the Mueller Grand Jury proceedings is here: rcfp.org/wp-content/upl…

The @rcfp's request stands (if it does) on two legs: first, the district court should unseal exercising its "inherent authority." Second, it should unseal because the Federal Rules of Criminal Procedure authorize it to do so in appropriate cases.

Today's decision strikes one leg out from under the @rcfp, namely that the district court can order the grand jury materials unsealed by exercising its inherent authority.

At this point, the Reporters' petition is like the black knight, in Monty Python and the Holy Grail:

But, the petition is a hopeful monster. It does assert that disclosure is authorized by Rule 6 of the Federal Rules of Criminal Procedure, after all.

But wait!

There's more:

True enough, the petition asserts that Rule 6 provides an additional ground for the district court to order that the grand jury materials be unsealed.

A closer examination of the alleged Rule 6 grounds for such an order, however, show that the Reporters' petition is actually the Black Knight at this point:

The @RCFP claims that three separate exceptions under the Federal Criminal Rules apply to its request. Those three exceptions are: (a) Judicial Proceedings Exception; (b) National Security Exception; and, (c) Government Attorney Exception.

Getting deep in the weeds isn't a helpful exercise, so, I will do my best to fairly brief and assess @RCFP's assertion of these exceptions:

The Reporters' Committee is not a qualified applicant for disclosures that depend on these grounds.

For the national security exception to apply, the disclosure must be made to a small subset of GOVERNMENT OFFICIALS.

@RCFP knows that it is not such an applicant, so it attempts to dress its application up, essentially arguing that the disclosure it seeks would benefit @HouseJudiciary and @HouseIntel Committee and their investigators.

While that assertion might be true, it is insufficient to afford "legal standing" to the Reporters' Committee to bring the disclosure action. If the House Committees desire disclosure, they can pursue it for themselves.

The federal rules do not grant @RCFP the right to do so on the behalf of the House or its Committees.

In like vein, the Reporters assert that the disclosure should be ordered under the "government attorneys" exception.

But their petition never claims that reporters are, themselves, "government attorneys" to whom disclosure may be authorized.

As with the #nationalsecurityexception argument, the Reporters simply assert that the disclosure would benefit the attorneys who are investigators serving the House Judiciary and Intelligence Committees.

The end result of that claim will be that the Reporters' Committee will be found to lack the necessary "standing" to be entitled to obtain disclosure under the "government attorney" exception.

That leaves the @Rcfp with only one nub on which to stand, its assertion of the judicial proceedings exception.

Here again, however, if the federal rule is to have any significance or meaning, the Reporters' Committee's assertion must fail:

Here is exactly what they argue about this exception:

First, they claim that the proceeding they have filed is a judicial proceeding and that, as such, the judicial proceeding disclosure exception applies. This is a bootstraps argument.

If it were correct, no grand jury proceedings would ever be secure from disclosure (an outcome @RCFP might welcome) because the instance a petition for disclosure would be filed, the exception would be satisfied!

Even @RCFP realizes it asks too much of the exception.

Consequently, they also assert that the #judicialproceedingsexception applies to authorize disclosure because of ... wait for it ... the investigative and possible impeachment proceedings contemplated (perhaps) by the House of Representatives.

Here again, @RCFP is bootstrapping, and leapfrogging over the constitutional limits on the power of the courts. If the House wishes to assert that its investigations, even its impeachment proceedings, are, in their nature, judicial proceedings, it is the House's argument to make.

It isn't the right or prerogative of Reporters Committee to speak for the House, to asserts the rights or powers or interests of the House. All in all, @RCFP's application is doomed to fail ... even if it has to be taken on appeal first.

@rcfp @threadreaderapp unroll

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