Yesterday, Judge James E. Boasberg, the chief judge of the Federal District Court for the District of Columbia, made public some previously secret material about attorney-client privilege fights in the grand jury investigations that led to President Trump’s indictment for trying to overturn the 2020 election and for retaining classified documents. I wrote about it in this New York Times article, which is also about the Knight First Amendment Institute’s attempt to make public the hidden Jack Smith report in the documents case.
I had to do some work to assess what was new in this trove and am posting it below in case it is useful to anyone.
For background, normally grand jury rules require keeping secret information such investigations. But if the government acknowledges that certain matters surrounding a grand jury investigation happened, that rule no longer applies. The public knew from news reporting that there were extensive closed-door fights over grand jury subpoenas to associates of Trump for documents and testimony in 2022 and 2023, but the actual briefs, arguments and rulings were sealed.
In the fall of 2022, Kyle Cheney/Politico and I/The New York Times separately asked to unseal materials about Trump’s attempt to use executive privilege to block grand jury subpoenas in the election investigation. The chief judge at the time, Judge Beryl Howell, who had overseen that litigation, ruled against us in early 2023 on the ground that there had been no formal acknowledgement that such litigation had occurred. At that point, The Times dropped out of the effort, but Politico kept going by appealing her ruling. Before the appeals court could address the matter, the government acknowledged the executive privilege fights in open court. The appeals court said Judge Howell had been right at the time, but the subsequent acknowledgement changed matters and sent it back down. The Justice Department did not dispute that the grand jury secrecy rule no longer covered that material, and it curated a set of files — still heavily redacted in places — that it thought could now be made public. In October, Judge Boasberg ordered its disclosure. Here’s the Times’ story about that disclosure and Politico’s.
Then, earlier this year, I wrote to Judge Boasberg to make a similar request regarding materials from those fights over assertions of attorney-client and attorney work-product privilege in both the election and documents cases, citing similar official disclosures about their existence. Judge Boasberg ruled last month that there had been sufficient public acknowledgement of the former, though not of the latter, to warrant disclosure. The Justice Department again curated a set of files, which the judge ordered posted on the public docket. We have not yet decided whether we will challenge any of the redactions or whether there might be additional responsive files not in this trove.
Some of these files are new, while many are the same ones from the October trove but with previously blacked-out portions now visible.
Here is a quick and dirty guide I put together about what is in each.
What’s in the new material versus what was in released last fall
| # in new, more fulsome set | # in original | description | Discussion |
| 22-gj-25 USCA 22-3073 | Probably Marc Short and Greg Jacob, who testified Oct 13, 2022 | ||
| 1 | Docket in J6 grand jury case 22-gj-25, 6 pages | ||
| 2 | 1 | Sept. 28, 2022, order from Howell, 3 pages, 22-gj-25 | A few words about a-c priv |
| 3 | 2 | Sept. 28, 2022, opinion from Howell, 40 pages, 22-gj-25 | Extensive discussion of a-c priv, esp pgs 30-36 which were blacked out in earlier version |
| 4 | 3 | Oct. 6, 2022 order, 2 pages, 22-gj-25 | A few words about a-c priv |
| 5 | 4 | Oct. 6, 2022, ruling, 8 pages, 22-gj-25 | |
| 22-gj-33 USCA 23-03002 | probably Cipollone and Philbin, who testified early Dec | ||
| 6 | Docket for a J6 grand jury case 22-gj-33 | ||
| 7 | 5 | Nov. 19, 2022, order, 4 pages, 22-gj-33 | A few words about a-c priv |
| 8 | 6 | Nov. 19, 2022, opinion, 41 pages, 22-gj-33 | Extensive discussion of a-c priv |
| 9 | 7 | Dec. 18, 2022, order, 2 pages, 22-gj-33 | A few words about a-c priv |
| 10 | 8 | Dec. 18, 2022, opinion, 10 pages, 22-gj-33 | Extensive discussion of a-c priv |
| 11 | 9 | Jan. 23, 2023, opinion and order, 6 pages, 22-gj-33 | A few words about a-c priv |
| 22-gc-39 USCA 23-3003 | One witness, maybe Ken Cuccinelli, who reportedly testified Jan 26? | ||
| 12 | Docket for grand jury 22-gc-39, 5 pages | ||
| 13 | 10 | Dec. 9, 2022, order, 2 pages, 22-gc-39 | A few words about a-c priv |
| 14 | 11 | Dec. 9, 2022, opinion, 40 pages, 22-gc-39 | Extensive discussion of a-c priv |
| 15 | 12 | Jan. 10, 2022, order, 2 pages, 22-gc-39 | A few words about a-c priv |
| 16 | 13 | Jan. 10, 2022, opinion, 10 pages, 22-gc-39 | Extensive discussion of a-c priv |
| 23-GJ-10, USCA 23-3035 and 23-3036 | docs case subpoenas to Corcoran and Little | ||
| 17 | Docket for subpoenas GJ42-17 and GJ42-69, 11 pages | ||
| 18 | March 20, 2023, hearing transcript, 38 pages, 23-gj-10 | mostly redacted but passage with a ruling from the bench denying stay pending appeal | |
| 23-gj-12 Smith report says this is 23-3043 | Post Jack Smith, one of two bulk cases for eight total remaining J6 executive branch witnesses | ||
| 14 | March 15, 2023, order, 3 pages, 23-gj-12 | ||
| 15 | March 15, 2023, opinion, 46 pages, 23-gj-12 | ||
| 16 | April 3, 2023, hearing transcript, 38 pages, 23-gj-12 | ||
| 23-gj-13 Smith report says this is 23-3049 | Post Jack Smith, the other of two bulk cases for eight total remaining J6 executive branch witnesses | ||
| 17 | March 25, 2023, opinion 18 pages, 23-gj-13 | ||
| 18 | April 10, 2023 hearing, 10 pages, 23-gj-13 |