Meet the new boss, same as the old boss. When Donald Trump lost the 2020 election, Democrats licked their chops at their ability to pry into grand-jury records relating to Russia-gate and other investigations into the former president. Trump tried to head that off by having his Department of Justice demand stricter secrecy on grand-jury records.
Now that Joe Biden’s in charge, however, the DoJ has decided to … er … embrace Trump’s proposal, and then some:
The Justice Department is pushing for rule changes that would put a 50-year delay on when courts can consider releasing material from federal grand juries, according to documents and interviews, and would separately allow gag orders to be applied more broadly to witnesses.
While the recommendations were made during the Trump administration, President Biden’s Justice Department is still seeking the changes, even as critics oppose what they say would be a significant expansion of secrecy around federal courts and investigations. …
The Justice Department fought all the way to the Supreme Court to keep the Mueller grand jury material under wraps. The issue was declared moot after Congress completed impeachment proceedings; but if the proposed rules are enacted, they could push back any revelations about the Mueller grand jury until 2069.
The White House is insisting that this isn’t a big change in direction. When Eric Holder was AG, they told the Washington Post, he proposed a 30-year block on release of grand jury records. That, however, was in the Days Before Trump, and before House Democrats launched two unsuccessful impeachment attempts to remove him from office. And take note that the new demand from Biden’s DoJ specifically and explicitly argues that the 30-year block is in fact too short:
“[W]e now think 30 years is too short,” Wroblewski wrote, adding that Congress does not release “information involving personal data relating to a specific living person” for 50 years. “We also no longer believe that Rule 6(e) materials should ever be presumptively available to the public,” he wrote. “Grand jury secrecy should be preserved except in the most extraordinary cases of historical value.”
So this is a change from the Obama administration’s position and a full adoption of the Trump administration argument. It’s also a curious move to take now. Democrats still had hopes of getting to the grand-jury records in the Mueller probe to head off another Trump run at the presidency in 2024. Trump has other legal woes in New York that could make this a moot point, but Merrick Garland is effectively disarming them up front against Trump. Joe Biden’s activist base is not going to take kindly to that.
That includes the ACLU:
Jennifer Stisa Granick, an attorney with the American Civil Liberties Union, has asked the rules committee to reject the proposal, writing that it “suggests an almost insurmountably high standard that would allow the release of only the most historically significant records decades after their immediate relevance. This increased secrecy would percolate through the entire legal system with damaging results.”
The Biden/Garland DoJ added an apparently new wrinkle to this demand, too. They want to allow prosecutors to obtain broad gag orders preventing witnesses from disclosing their testimony to grand juries on their own as well. Courts have issued such orders in narrow contexts, but the new rule would essentially give prosecutors carte blanche to keep witnesses from talking about their testimony. That would not just impede First Amendment rights of those involved in such investigations, it would also cut off a potential workaround for Democrats if applied to the Mueller grand jury witnesses.
One has to wonder why Garland and Biden are pressing this case at all, let alone now. Is it just the kind of routine bureaucratic expansion and CYA we normally expect, or did something more specific prompt it?