Regular readers of this blog (hi Mom!) know that I enjoy it when a court disagrees with the Department of Justice. After all, DOJ usually wins.
A federal judge recently told DOJ that it cannot hire a private company (Deloitte) to help process voluminous information obtained in an investigation because of grand jury secrecy. The judge was right on the law. But is the outcome bad for the targets of that investigation?
Judge Howell’s Opinion
On January 6, there was an armed insurrection at the U.S. Capitol. In case you have been living under a rock, a bunch of people showed up to protest the election results (no problem) and a subset of that group decided to break into the Capitol, injure police officers, and try to overthrow democracy (problem). DOJ started a massive investigation that has so far led to the criminal charges against over 500 people. Over 200 people have been charged through felony indictments.
The investigation is ongoing. It’s been wide ranging and, relevant here, has resulted in gathering a massive amount of electronic data. There is video evidence from cameras in and around the Capitol building, plus the body-worn cameras of the officers there that day. A lot of that is HD quality. Then there is social media evidence, which includes recordings by participants. Because of the amount of information, DOJ wanted to use the international consulting firm Deloitte to manage, store, and process it.
Because of grand jury secrecy rules, DOJ (properly) asked for a court order under Federal Criminal Rule 6(e)(3)(A)(ii). This rule allows DOJ to seek an order allowing it to share grand jury information with “government personnel” who are “necessary to assist in performing [the prosecutor’s] duty to enforce criminal law.” Alternatively, DOJ asked for a court order allowing it to share information under Rule 6(e)(A)(3)(E)(i)—allowing it to share information “preliminarily to or in connection with a judicial proceeding.”
Judge Howell wrote a 54-page opinion denying the government’s request. She concluded that even if Deloitte employees signed robust confidentiality agreements and were subject to background checks, and even if DOJ closely supervised their work, Deloitte employees are not “government personnel” for purposes of Rule 6(e).
There is a 2019 D.C. Circuit case, McKeever v. Barr, 920 F.3d 842, 844 (D.C. Cir. 2019), holding that exceptions to grand jury secrecy must be interpreted “narrowly and literally.” Plus, the list of exceptions is exhaustive, so a court has no inherent authority to create a new exception. Because Deloitte employees are, well, employees of Deloitte and not of DOJ, they are not “government personnel.” (Sometimes, the law is actually pretty straightforward, even if lawyers try to make it complicated.)
There is a circuit split about how to read this rule (attention all Supreme Court practitioners!) but the D.C. Circuit law was clear enough to prevent DOJ from obtaining the court order it requested. Other courts have allowed contract employees to be considered “government personnel” under this rule but McKeever prevented Judge Howell from reaching the same conclusion.
The court also rejected the idea that an order was because it was a request to disclose information “in connection with a judicial proceeding.” Here, some information in the proposed database did relate to indicted cases but other information had to do with cases still being investigated or was simply general information collected. Since DOJ wanted to share all of this information, disclosure was not permitted under this part of Rule 6(e).
Was Judge Howell Right?
Yes, I think she was.
Grand jury secrecy serves important functions to keep information about investigations confidential. Although grand juries vote to indict in most cases, the names of witnesses and unindicted individuals should be kept confidential by the government. There’s no reason to believe that Deloitte would share the information, and it appears that the government tried in good faith to implement measures to limit the risk of disclosure outside of Deloitte, but that ultimately is not enough to overcome the rules here.
It’s a well-reasoned opinion overall and points out that Judge Howell was limited in her authority given McKeever. It’s binding precedent after all. She suggested that she thought DOJ had done its best to preserve grand jury secrecy but that doesn’t mean the rules don’t apply.
What Happens Next?
While this decision is a setback for DOJ, it does not mean that it cannot continue these investigations. It simply creates a logistical problem. The fact is, DOJ has all sorts of private contractors embedded in it that handle grand jury material all the time. Those contractors report to a DOJ building, have DOJ badges (albeit one with a different color stripe to identify them as a contractor), and access internal documents on DOJ servers.
It’s not 100% clear if Judge Howell’s decision affects those contractors. The issue before her was whether DOJ could give access to Deloitte employees not embedded within DOJ at all.
Assuming DOJ thinks it can continue using internal contractors, it could issue a request for proposal (RFP) for this work to bring a contractor in-house to handle it and then pick Deloitte as the contractors. This risks Judge Howell thinking that DOJ is making an end run around her ruling.
To play it safe, DOJ could instead hire temporary employees to handle this work. They will technically need to be “temporary employees” and may come from Deloitte itself. But they can work for DOJ directly to do the work on this project. According to OPM, temporary employees may be hired for one year and the term can then be extended for a second year. These employees “are not entitled to procedural protections from adverse actions or reductions in force. As a condition of employment, they can be separated from employment with minimal notice and with no appeal rights.”
Is this Good for the Targets of this Grand Jury Investigation?
Yes and no.
For people already indicted, it’s not great. This will slow down the production of discovery by DOJ to the defendants and delay their cases. Many people will want their case to be resolved as quickly as possible but until DOJ produces the discovery to their lawyers, it’s tough to work out a resolution (likely a plea agreement) that makes sense.
An RFP process can take some time as could hiring the right temporary employees to do the work. Given that DOJ says it cannot handle the matter right now, this will lead to a further delay. It could be a few months before DOJ can work out the logistics, and that is if the RFP or hiring process moves very quickly.
For people who are only under investigation (and for defendants/targets generally), though, it’s a very good decision. Grand jury secrecy matters. That was a huge crowd of people and there is a decent chance of misidentification or weak evidence against someone. Protecting the confidentiality of the people involved in those cases is the whole purpose of grand jury secrecy.
I may not be a fan of the politics of the people who showed up that day. But they had every right to protest. That’s not illegal and someone who only protested—as opposed to engaging in criminal conduct by breaking into the Capitol, destroying property, harming a police officer and so forth—should not be worried about having their name released to someone outside of DOJ.