How They Spent Their Summer Vacation

A decision today from Chief Judge Boasberg of the United States District Court for the District of Columbia

The legal news cycle has seen lazier summers. In one of many noteworthy events, a federal grand jury indicted former president Donald J. Trump this June for retaining and concealing classified documents after the conclusion of his presidential term. Reporters have since been hard at work, setting vacation plans aside to wade through the lengthy indictment. Having observed that the indictment contains detailed accounts of Trump’s discussions with his attorneys (which are normally protected by the attorney-client privilege), a set of news organizations now asks this Court to disclose how the Government obtained them. Because any such disclosure would infringe on grand-jury secrecy, however, the Court must deny the request.

Continuing secrecy prevails notwithstanding a certain voluble source

The only identifiable individual who may have had some direct knowledge and who commented on that reporting is Trump, the target of the investigation. Although statements made by the holder of the privilege could be considered relevant, Trump’s statements called the reporting “Fake News” and suggested at most that the grand jury sought to learn what his attorneys knew, not necessarily that it asked for their accounts of their communications with him or that any such effort was successful. See Faulders, et al., supra.; Dawsey, et al., supra. The Court declines to read more into those statements.

Nor has the June Indictment confirmed those anonymous reports. The Press surmises that the Indictment “undoubtedly” reveals that the Government obtained Attorneys 1 and 2’s communications directly from them and over their invocation of the attorney-client privilege, see App. at 1, because it recounts the attorneys’ communications with Trump in such detail. See Mem. at 6. That may be true, but it is ultimately only one of several plausible inferences that may be drawn from the indictment. The Government is correct to point out that the indictment “demonstrates only that [it] obtained these communications — not through what means, in what form, or from whom.” Opp. at 14 (listing as alternative possibilities Trump’s waiver of the privilege or external sources). Indeed, the Press’s Application underscores that disclosure by this Court would reveal inner workings of the grand jury’s process that are not already public. It emphasizes that the public “has been left in the dark as to how the Government could have successfully obtained” records of these attorneys’ communications with Trump “given the customarily robust protections of attorney-client privilege and/or the attorney work product doctrine.” Mem. at 2; see also id. at 7 (similar). Revealing the particulars or outcome of any such dispute would therefore necessarily reveal whether the grand jury sought and ultimately obtained testimony from particular attorneys and on what basis.

The Press attempts to analogize to two recent releases of records relating to ancillary grand-jury proceedings, but neither moves the needle.

(Mike Frisch)