In re Capitol Breach Grand Jury Investigations within the Dist. of Columbia

Decision Date16 July 2021
Docket NumberGrand Jury Action No. 21-20 (BAH)
CourtU.S. District Court — District of Columbia

Chief Judge Beryl A. Howell


On January 6, 2021, a joint session of the United States Congress convened at the United States Capitol to carry out the constitutional duty of certifying the vote count of the Electoral College of the 2020 Presidential Election. This ritual of democracy was disrupted by a rioting mob that breached the Capitol and put a temporary halt to the electoral vote count, assaulting members of law enforcement, destroying property, and encouraging others to join in the mayhem along the way. To date, more than 500 individuals located across the country have been charged, in over 175 misdemeanor informations and over 170 indictments, with criminal offenses in this District resulting from their participation in the attack on the Capitol.

The government's investigation into the Capitol attack began almost immediately after January 6, 2021, with the first defendants arrested and charged the next day. See, e.g., Arrest Warrant Return, United States v. Coffman, Crim. No. 21-4 (CKK) (D.D.C. Jan. 7, 2021), ECF No. 3; Arrest Warrant Return, United States v. Leffingwell, Crim. No. 21-5 (ABJ) (D.D.C. Jan. 7, 2021), ECF No. 3; Compl., United States v. Ochs, Crim. No. 21-73-2 (BAH) (D.D.C. Jan. 7, 2021), ECF No. 1. Nearly seven months later, the government has collected massive amounts of information and electronic data in the course of its investigation, which the government describes as "the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence." Gov't's Mem. Regarding Status of Disc. ("Gov't's BledsoeDiscovery Mem.") at 2, United States v. Bledsoe, Crim. No. 21-204 (BAH) (D.D.C. July 12, 2021), ECF No. 53. This evidence ranges from video footage from multiple sources and social media posts to location history data and cell tower data for thousands of devices present inside the Capitol. See id. at 3. Recognizing its obligation to share any exculpatory evidence within this enormous dataset with counsel for the hundreds of Capitol attack defendants, the government retained, on May 28, 2021, an independent contractor, Deloitte Financial Advisory Services, LLP ("Deloitte"), "to assist in document processing, review and production of" this voluminous discovery. Id. at 7. The government represents that use of Deloitte's expertise in this manner "is vital to the United States'[s] ability to review large data/document productions and is essential to [the government's] ability to prosecute these cases effectively," id., and "to ensure that all defendants obtain meaningful access to voluminous information that may contain exculpatory material" while "adequately protecting the privacy and security interests of witnesses and subjects from whom those materials were derived," id. at 9.

Certain of the evidence collected by the government, however, has been presented to grand juries in this District as evidentiary support for felony charges against more than 200 defendants, and "over 6,000" grand jury subpoenas have been issued for the production of significant portions of the information collected by the government. Id. at 4. The number of indictments and subpoenas—and concomitant grand jury activity—is likely to grow as the investigation continues. These materials presented to grand juries are or may be shielded from disclosure to Deloitte by Federal Rule of Criminal Procedure 6(e), which prohibits, with narrowly construed exceptions, the disclosure of "matter[s] occurring before the grand jury," FED. R. CRIM. P. 6(e)(2)(B), to any persons or entities.

This general rule prohibiting disclosure of grand jury material contains certain exceptions, including allowing "[d]isclosure of a grand-jury matter," FED. R. CRIM. P. 6(e)(3)(A), to "any government personnel" that a government attorney "considers necessary to assist in performing that attorney's duty to enforce federal criminal law," FED. R. CRIM. P. 6(e)(3)(A)(ii). The government now seeks an order authorizing disclosure to Deloitte, pursuant to Rule 6(e)(3)(A)(ii), of grand jury matters related to the Capitol attack and materials collected in connection with those matters. Gov't's Mot. Authorize Disclosure of Grand Jury Materials ("Gov't's Mot.") at 1, ECF No. 1. In support of this request, the government contends that Deloitte is properly regarded as "government personnel" within the meaning of the exception. See id. at 6-8. In the alternative—and presented almost as an after-thought in a second supplemental filing to its initial application—the government seeks an order authorizing disclosure under Rule 6(e)(3)(E)(i), which allows a district court to "authorize disclosure . . . of a grand-jury matter," FED. R. CRIM. P. 6(e)(3)(E), "preliminarily to or in connection with a judicial proceeding," FED. R. CRIM. P. 6(e)(3)(E)(i); see Gov't's Second Suppl. Mem. Supp. Mot. Authorize Disclosure of Grand Jury Materials ("Gov't's Second Suppl. Mem.") at 1, ECF No. 4.

Undoubtedly, the government has a genuine need for the highly technical expertise offered by Deloitte to provide litigation support and process efficiently the cumbersome myriad forms of electronic data collected in investigating the Capitol attack. Preventing disclosure of grand jury matters within the voluminous Capitol attack dataset to the government's contractor will require the government "to segregate the substantial body of material that may trigger secrecy obligations under Rule 6(e) and provide case-specific mechanisms for its disclosure." Gov't's Second Suppl. Mem. at 5-6. As the government rightly explains, this requirement "threatens to slow the discovery process, delay contemplated trial proceedings, and underminethe considerable benefits of having a single, secure, searchable database for discovery materials," and further undermines a review process seen by the government "as a practical necessity to comply with its discovery obligations" to produce exculpatory evidence to hundreds of defendants and resolve these cases as expeditiously as possible. Id. at 6.

Nonetheless, for the reasons explained below, the term "government personnel" in Rule 6(e)(3)(A)(ii) permits disclosure of grand jury materials only to employees of public governmental entities and cannot be stretched to include a private contractor such as Deloitte, no matter how compelling the need for disclosure may be. Further, the government has not made a sufficient showing of particularized need to warrant disclosure under Rule 6(e)(3)(E)(i). Disclosure to Deloitte is therefore prohibited, and the government's motion to authorize disclosure based on one or the other of these exceptions must be denied.1

A. January 6, 2021 Attack on the United States Capitol

Two months after the November 3, 2020 presidential election, on January 6, 2021, a joint session of the United States Congress convened at the United States Capitol to certify the vote count of the Electoral College of the 2020 Presidential Election. Gov't's Mot. at 1; see also United States v. Chrestman, Case No. 21-mj-218 (ZMF), 2021 WL 765662, at *2 (D.D.C. Feb. 26, 2021). "The joint session began at approximately 1:00 p.m., with then-Vice President Mike Pence presiding." Chrestman, 2021 WL 765662, at *2. Shortly after, "the United States House of Representatives and the United States Senate adjourned to separate chambers within the Capitol to resolve an objection raised in the joint session." Id. "As the House and Senateproceedings took place, a large crowd of protestors gathered outside the Capitol." Id. Law enforcement officers from the U.S. Capitol Police, who were later joined by officers from the Metropolitan Police Department and other law enforcement agencies, "were present and attempting to keep the crowd away from the Capitol building and the proceedings underway inside." Id. (internal quotation marks and citation omitted); see also Gov't's Mot. at 1; United States v. Owens, Crim. No. 21-286 (BAH), 2021 WL 2188144, at *2 (D.D.C. May 28, 2021).

Soon after 2:00 p.m., a violent mob "forced entry into the U.S. Capitol, including by breaking windows and by assaulting members of law enforcement, as others in the crowd encouraged and assisted those acts." Gov't's Mot. at 1; see also, e.g., Chrestman, 2021 WL 765662, at *2; Owens, 2021 WL 2188144, at *2-4. By one estimate, "the mob on the west side" of the Capitol alone numbered "at least 9,400 people, outnumbering police officers by more than 58 to one." Gov't's Bledsoe Discovery Mem. at 4 (internal quotation marks and citation omitted). "[M]ayhem broke out inside the building, putting an hours-long halt to the electoral vote count while elected representatives, congressional staff, and members of the press hid in terror from the mob." Chrestman, 2021 WL 765662, at *2 (internal citations omitted). "The joint session, and thus the constitutional ritual of confirming the results of the 2020 Presidential Election, was effectively suspended until shortly after 8:00 p.m.," id. (internal quotation marks and citation omitted), when law enforcement was finally "able to clear the Capitol of hundreds of unlawful occupants and ensure the safety of elected officials," Gov't's Mot. at 1.

B. Investigation into Capitol Attack and Collection of Evidence

In the nearly seven months since January 6, 2021, as of July 16, 2021, over 500 individuals have been charged with criminal offenses in this District arising out of their participation in the Capitol attack. The charges against these defendants range from felonies,such as assaults on law enforcement and conspiracy, to misdemeanors, such as disruptive or disorderly conduct in the Capitol or on Capitol grounds, with many defendants facing multiple charges. See U.S. Att'y's Off., D.C., Capitol Breach Cases, U.S....

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