Sunday, February 5, 2006

Grand Jury Secrecy - Libby Case

The Washington Post reports here on the DC Circuit Court of Appeal's Order releasing previously undisclosed grand jury material related to the Libby case. The actual court Order releasing the information is here. The court states that the release of part of this previously undisclosed document came about because:

"Now that the grand jury has returned an indictment against I. Lewis Libby for perjury, obstruction of justice, and making false statements to federal investigators, amicus curiae Dow Jones & Company moves to unseal the eight pages—or, failing that, portions thereof relating to matters that are now public."

The rationale for the release of some of this information now is explained as follows by the court:

"to prevent the unauthorized disclosure of a matter occurring before a grand jury.' Fed. R. Crim. P. 6(e)(6) (emphasis added); cf. Dow Jones, 142 F.3d at 502 (explaining that identical language in Rule 6(e)(5) requires courts to open judicial hearings ancillary to grand jury affairs to the public whenever consistent with grand jury secrecy). Our case law, moreover, reflects the common-sense proposition that secrecy is no longer 'necessary' when the contents of grand jury matters have become public."Grand jury secrecy is not unyielding, however. Judicial materials describing grand jury information must remain secret only 'to the extent and as long as necessary

But not everything will be released.  As stated by the court:

"That the special counsel’s investigation is ongoing only heightens the need for maintaining grand jury secrecy, for the special counsel is entitled to conduct his investigation out of the public eye and with the full cooperation of witnesses who have no fear their role in the investigation will lightly be disclosed."

The previously redacted Order that now has portions disclosed can be found on the Wall Street Journal website here.  But the more interesting question is what is on pages 34-37 of Judge Tatel's concurring opinion. It starts by saying "Regarding Cooper" and is then redacted.  It sounds like Special Prosecutor Fitzgerald is still working on this case.


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