The first thing a judge would point out is that what Congress is demanding that Barr do is illegal – namely, disclose grand jury material to Congress. In Wednesday’s circus of a hearing, Chairman Nadler pointed out that there was a time when federal prosecutors would have joined with Congress to seek a court order permitting disclosure. Yes … but what Nadler conveniently neglected to mention was that this was before last month, when the D.C. Circuit federal appeals court – whose jurisprudence controls the dispute between Congress and the attorney general – decided McKeever v. Barr.
That case holds that a court has no authority to order disclosure unless it is pursuant to an exception to grand-jury secrecy explicitly spelled out in Rule 6(e) of the Federal Rules of Criminal Procedure (which governs grand jury matters). In the old days that Nadler was talking about, there was a theory in the law that a court has residual “supervisory” powers over the grand jury that empowered judges to order disclosure outside Rule 6(e). McKeever rejects that theory.
District judges in Washington are bound to follow McKeever. So a court could not order disclosure. Then there is the other embarrassing point a judge would make. Rule 6(e) is Congress’ own law. Meaning Congress has the power to amend it. Any judge would, therefore, have to ask House Democrats, “While you were doing all this ranting and raving and holding the attorney general in contempt, have any of you fine lawmakers proposed a two-line amendment to Rule 6(e) that would authorize disclosure to Congress in special counsel investigations?”