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In a 54-page decision, Washington-based U.S. District Court Judge Beryl Howell rejected government arguments that contractor’s personnel would be considered the equivalent of government employees under the provisions relating to the secrecy of the grand jury rules. She also said prosecutors had failed to demonstrate there was a “special need” to give Deloitte staff access to grand jury documents.
“The term ‘government personnel’ is best interpreted, in accordance with much of the district court case law, to include only employees of public government entities,” wrote Howell, who oversees grand jury affairs in as chief justice of the Washington-based court.
“Deloitte, a private company contracted by the government on a non-exclusive basis, is a private government entity rather than a public one, and its staff are employees of the company rather than the government. [The grand jury secrecy rule] therefore does not allow disclosure of grand jury matters to Deloitte and its employees, ”Howell added.
Spokesmen for the Department of Justice and the U.S. Attorney’s Office in Washington did not immediately respond to requests for comment.
Howell argued that prosecutors’ request, fundamentally, was to simplify their obligations to provide evidence to defendants. That, on its own, she said, is not enough to justify lifting the grand jury secrecy.
“Disclosures of information to the grand jury must be justified by more than the need for the government to effectively separate the wheat from the chaff,” she said.
Howell’s decision appeared to be heavily influenced by his experience in a recent case involving a historian seeking the records of a grand jury investigation into the disappearance of a Columbia professor and political activist in the 1950s.
Howell ruled in favor of the historian, concluding that judges had discretion to disclose grand jury documents in compelling circumstances not specifically permitted by the secrecy rule. But the DC Circuit Court of Appeals overturned Howell and found the judges did not have that discretion.
The judge suggested in her opinion that the Justice Department interpreted the rule strictly in this case, but would like it to be interpreted more liberally now that prosecutors could use some leeway to deal with the case. massive investigation of January 6. She described the new position of prosecutors as “a timely relaxation of the government’s position.”
Howell also expressed concern that the government’s broad request to share “all” grand jury documents with Deloitte “means that the disclosure documents may have been collected as part of investigations into people who are never targeted, never charged or cleared ”.
“Since the government’s request is also forward-looking, applying to any related matter that has not yet been brought before a grand jury, the documents to be disclosed to Deloitte may relate to persons still under investigation who could be charged or exonerated in the future, “she added. .
This, she said, could frighten witnesses concerned that the extensive sharing of evidence could alert outsiders to the scope and direction of the Justice Department’s Capitol Riot investigation.
“The guarantees built into the government’s contract with Deloitte therefore do not allay fears that mass disclosure to this private entity may undermine the interests of grand jury secrecy, especially in such a high-profile and historically important investigation,” he said. writes Howell.
While prosecutors have said they plan to disclose most of their evidence to all defendants in order to meet constitutional obligations to share “exculpatory” evidence, Howell suggested that many defendants do not have the right to see all the evidence gathered by the grand jury.
“As the precedent clearly shows, a defendant charged with offenses arising from the attack on the Capitol is likely facing an uphill battle to secure disclosure of the documents presented to the grand jury who indicted him,” the judge wrote in chief. “Yet by government logic and the two-step disclosure process it envisions, Deloitte, a private company, would have better access to grand jury documents in any Capitol Attack case than any other. individual defendant is entitled to receive in his own case. “
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