‘Sleeper’ case could torpedo Mueller report
It might even keep the special counsel from sending a report to Congress, shaking Democrats’ hopes that such a document could provide the impetus for impeachment proceedings.
By JOSH GERSTEIN
A little-noticed court case stemming from the apparent murder of a Columbia University professor six decades ago could keep special counsel Robert Mueller from publishing any information about the Trump campaign and Russia that he obtains through a Washington grand jury.
The substance of the case is entirely unrelated to Mueller’s investigation into whether any of President Donald Trump’s associates aided Russia’s efforts to intervene in the 2016 election.
But if a Washington appeals court set to hear the murder-related case next month sides with the Justice Department and rules that judges don’t have the freedom to release grand jury information that is usually kept secret, it could throw a monkey wrench into any plans Mueller has to issue a public report on his probe’s findings, lawyers following the issue said.
And it might even keep the special counsel from sending a report to Congress, shaking Democrats’ hopes that such a document could provide the impetus for impeachment proceedings against the president.
“It is a sleeper case,” Harvard Law professor Alex Whiting said. “If the D.C. Circuit were to accept the Department of Justice’s arguments…that would have potentially enormous implications for the future of the information from the Mueller investigation. That could close out a path by which that information becomes public.”
The case at the appeals court was brought by attorney and author Stuart McKeever, who has spent decades investigating the disappearance of Jesus Galindez, a Columbia university professor and political activist who vanished in New York City in 1956. His body was never found, but there are indications that he was kidnapped and flown to the Dominican Republic, where he may have been killed.
The unsolved 62-year-old mystery, which also sweeps in the death of an American pilot and two trials in Washington of a man charged with being an unregistered Dominican Republic agent, is so colorful and convoluted that it inspired a 2003 film starring Harvey Keitel, “The Galindez File.”
McKeever, 82, wants a judge to release secret testimony given to a DC-based grand jury that investigated Galindez’s disappearance. But the Justice Department argues that judges don’t have “inherent authority” to release such information unless it falls under exemptions approved by Congress, which don’t apply in the Galindez case — or in many others, including potentially Mueller’s investigation.
“I’ve been on the journey almost 40 years to tell this story,” McKeever said Sunday in a phone interview from his South Carolina home. “The Justice Department does not want this case to break the dam.”
The arguments in McKeever’s case next month will take place at the D.C. Circuit Court of Appeals in Washington — two floors above where Mueller’s grand jury meets.
A spokesman for Mueller’s office declined to comment on whether his team is tracking the McKeever case, but one lawyer closely following the Trump-Russia probe said Mueller’s allies are aware of the problems the McKeever case could cause for the special counsel.
“There are people who are interested in the options open to Mr. Mueller and his investigation who recognize the potential significance of this case,” said Philip Lacovara, an attorney who served as a prosecutor on the Watergate special counsel team. “It certainly could complicate matters.”
If Democrats win control of the House in November, the whole debate is likely academic. In that scenario, the House Judiciary Committee could subpoena any report as part of an impeachment inquiry. A judge would likely approve that request because of a D.C. Circuit ruling in 1974 that approved transmission of a report to the House on President Richard Nixon’s actions in Watergate.
It’s if Republicans keep the House — and there’s no such subpoena — that the McKeever decision could take on added importance. At issue is a federal court rule that governs grand jury secrecy and lays out several exceptions permitting disclosures. There is no exemption in the rule that explicitly authorizes a report to the public or to Congress for potential use in impeachment proceedings.
The law used to appoint independent counsels in the 1980s and 1990s had a provision for such a report to Congress and was the mechanism used for the 1998 report that led to the impeachment of President Bill Clinton.
However, that law expired in 1999. Mueller was appointed under Justice Department regulations that are similar to the earlier statute, but there’s no provision in those rules that ensures secret grand jury testimony can be made public, as there was under the old independent counsel law.
Trump lawyer Rudy Giuliani has said Mueller’s office is preparing a report on his findings, but the exact mechanism by which it would be disclosed is unclear. Experts on grand jury secrecy say the public assumption that Mueller can simply publish his conclusions could be wrong, especially if the appeals court sides with the Justice Department in the McKeever case next month.
“The question of how information obtained by Mueller in his investigation will ultimately become public is a pressing one, and it’s a complicated question,” Whiting said.
Adding to the political drama around the McKeever case: the judges drawn to decide it. The three-judge panel announced by the court last week leans Republican, which is unusual since most of the D.C. Circuit’s active judges are Democrats. In addition, the panel will include the appeals court’s only Trump appointee, Judge Greg Katsas. Also assigned to the case: Judge Douglas Ginsburg, a Reagan appointee, and Judge Sri Srinivasan, an Obama appointee.
The McKeever case is already affecting another politically sensitive disclosure fight: a pending request from CNN for access to records of various grand jury court battles during the Clinton years.
Last week, the Justice Department agreed to release a special master’s report from one of those cases. The report, detailing an investigation into alleged grand jury leaks, did not mention Brett Kavanaugh, the Trump Supreme Court nominee who served as a member of independent counsel Ken Starr’s staff.
A Justice Department spokesman declined to explain why the agency approved release of that report but is fighting to keep information in other grand jury-related cases under wraps. However, the spokesman pointed to a legal brief where Justice attorneys argued that the special master’s report did not contain any grand jury secrets that had not previously been released.
There are ways the D.C. Circuit panel could defuse the McKeever case without impacting Mueller. For instance, the judges could send the matter back to the district court to consider a narrowed request the author has made for the records related to his case. The appeals court panel could also say explicitly that it is not opining on potential disclosures to Congress or those regarding impeachment inquiries.
“It depends on how narrowly or broadly they want to write the opinion,” said Boston College law professor Mike Cassidy, an expert on grand juries.
Cassidy said there are precedents for grand juries releasing public reports, particularly at the state and local level, as with the one issued last week in Pennsylvania over sex abuse by Roman Catholic priests.
At least two other appeals courts, the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have issued rulings that found judges could order grand jury-related disclosures that weren’t explicitly authorized elsewhere.
McKeever says he’s not as concerned about the impact his case could have on the Mueller probe as he is about the prospect that he could be denied information that could shed light on what he believes is possible U.S. government involvement in the disappearance of the Columbia professor, Galindez, who was a critic of the dictator and U.S. ally who led the Dominican Republic at the time, Rafael Trujillo.
McKeever says he worries that the appeals court could issue a ruling that shuts down historians, authors and journalists from being able to investigate cases that grand juries dropped or didn’t finish. Eight prominent historians filed a brief backing his position.
“My whole goal here is to tell the story on every single level, all the ramifications,” McKeever said. “Who’s in charge of the truth here?”