“Break the Wheel,” or something, part 3

United States District Judge Patrick Schiltz supervised the Blue Grand Jury that indicted Derek Chauvin et al. on federal civil rights charges following Chauvin’s conviction in state court for the murder of George Floyd. The indictment was sealed, but someone leaked news of the sealed indictment to Star Tribune reporter Andy Mannix.

Mannix’s story was dated April 29, 2021, a few days in advance of the unsealing of the federal indictment. News of the grand jury proceedings as to Chauvin et al. had earlier been leaked and published in February by New York Times reporters Tim Arango and Katie Benner.

Insofar as Mannix’s story reported the then forthcoming federal indictment, it was based on a single unidentified source whose affiliation Mannix did not even hint at. Mannix, moreover, gave readers no idea why his source’s identity could not be disclosed. I noted at the time that the professional misconduct involving the leak conflicted with the ecstatic tone of Mannix’s story.

By court order dated May 5, 2021, Judge Schiltz announced that he was undertaking an investigation of the leaks. In his order Judge Schiltz revealed that he has been supervising the Blue Grand Jury since it was impaneled in June 2019. His order provided this background (footnotes to the cited articles omitted):

On February 23, 2021, the New York Times published an article headlined “With New Grand Jury, Justice Department Revives Investigation Into Death of George Floyd.” On April 29, 2021, the (Minneapolis) Star Tribune published an article headlined “Feds plan to indict Chauvin, other three ex‐officers on civil rights charges.” Both articles provide reason to believe that “matter[s] occurring before the grand jury” were disclosed to reporters in violation of Fed. R. Crim. P. 6(e).

This was the heart of the order:

“A knowing violation of Rule 6, or of any guidelines jointly issued by the Attorney General and the Director of National Intelligence under Rule 6, may be punished as a contempt of court.” Fed. R. Crim. P. 6(e)(7). Courts are authorized to initiate criminal contempt proceedings and, if necessary to the interests of justice, to appoint a private attorney to act as a special prosecutor in those contempt proceedings. Fed. R. Crim. P. 42(a)(2); Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987).

To assist the Court in determining how to proceed with respect to the apparent violation of Fed. R. Crim. P. 6(e), the Court will order the United States and the State of Minnesota to provide the Court with a list of every person to whom a matter occurring before the Blue Grand Jury was disclosed by an employee or agent of either sovereign. The Court will also order the United States to show cause why it is not in the interest of justice for this Court to appoint independent counsel to investigate and possibly prosecute criminal contempt charges relating to the apparent disclosures of matters occurring before the Blue Grand Jury.

Everything in Judge Schiltz’s investigation was to be filed under seal and was, with one exception. I signed up for automated notice of filings in the case from its inception. One day I received notice that a letter had been filed in the investigation. I was disappointed to see that it too was under seal. When I clicked on the numerical docket entry for the letter in the court’s electronic filing system, however, the letter materialized.

I called Judge Schiltz’s chambers to apprise the judge that the letter had not been filed under seal and that I had downloaded a copy. It was a letter by Minnesota Assistant Attorney General Matthew Frank to Judge Schiltz. Judge Schiltz responded to Frank’s letter with a letter of his own that was publicly filed in the court docket:

I write in response to your letter of earlier today, which was not filed under seal despite the docket entry to the contrary.

I first want to express my disappointment at your extraordinarily careless handling of confidential and sensitive information regarding a federal grand jury. I already had serious concerns about whether your office should continue to be entrusted with testimony and other evidence presented before federal grand juries, and your failure to ensure that your letter was filed under seal has certainly done nothing to assuage those concerns….

I reported the exchange with copies of the letters on Power Line in “A glimpse into the Blue Grand Jury investigation.”

Judge Schiltz’s investigation of the leaks cast a wide net including scads of state and federal officials, but Keith Ellison took it personally. He does not mention in Break the Wheel that his office wasn’t the only one investigated. He does not care about the underlying misconduct that was investigated. He seeks to portray himself as a victim. He writes in his memoir: “Of course, my office had nothing to do with the leak. We cooperated fully to prove our innocence, but nonetheless we had to endure an FBI investigation on judge’s orders.” Oh, the suffering humanity.

What really gripes Ellison is Judge Schiltz’s concern that his office might have been the source of the leak. Ellison quotes Judge Schiltz speaking as reflected in what must be a sealed transcript: “I think [there is] reason to believe a federal crime has been committed here, and it could have been committed by someone working for the State. I’m concerned about the State leaking. I was really struck by how many different people were involved in the State side [of the prosecution of Chauvin]. This was a very big Goliath versus a very small David case.”

One would never know it from reading his book, but Ellison’s quotation from what I believe to be a sealed transcript is unintentionally illuminating. It illustrates Judge Schiltz’s concern to protect the important interests served by grand jury secrecy against misconduct by law enforcement officials. It also illustrates the reasonable nature of Judge Schiltz’s concerns about the compliance of Ellison and his office with legal constraints.