9th Circuit Holds that Documents Delivered to Government Attorneys in Response to Grand Jury Subpoena Grand Jury Matters Subject to FRCrP Rule 6(e)'s Secrecy Requirement (2/3/26; 2/4/26)

I write today on facets of Rule 6(e)(2), Federal Rules of Criminal Procedure, relating to grand jury secrecy. Rule 6 may be viewed here. Rule 6(e)(2) in part relevant to this blog entry requires that Government personnel participating in a grand jury investigation “must not disclose a matter occurring before the grand jury." Rule 6(e)(2)(B).

In Kalbers v. Volkswagen AG, ___ F.4th ___ (9th Cir. 1/30/26), CA9 here and GS here [to come], the Court held in a FOIA proceeding that Rule 6(e)(2) applies to documents delivered in response to a grand jury subpoena. Professor Kalbers sought Volkswagen’s Counsel’s responsive “file” containing millions of documents that Volkswagen, a target or subject, delivered in response to the grand jury subpoena. I think the case assumes that at least some portion of the documents were never presented to, summarized, or otherwise considered by the grand jury. The Court held that subpoena-responsive documents are grand jury matters subject to Rule 6(e)’s secrecy requirement and therefore are not disclosable under FOIA. The reasoning appears solid to me. I won’t track the reasoning here because it is not necessary for the focus of this blog entry.

 An issue I have spent time on is whether documents delivered by a subject or target of a grand jury investigation to attorneys for the Government conducting a grand jury investigation without a grand jury subpoena can be subject to Rule 6(e). Would it matter whether the attorneys for the Government asked nicely (pretty please) or threatened a grand jury subpoena (or some shade of gray between those extremes)? Would it matter if the Government sent the request in a letter (like the Branerton letter that must precede formal discovery in Tax Court proceedings)? What if in such a letter (or other communication), the Government mentioned that the person from whom the documents were sought was a target or subject of a grand jury proceeding? What if the person from whom the documents were sought had earlier received a letter notifying of grand jury target or subject status and the Government attorneys' participation in that investigation (i.e., no notice that the DOJ attorneys were also conducting an independent investigation)?

A tangentially related issue to this is whether, in a tax crimes case, DOJ Attorneys have authority to conduct at the same time (i) a grand jury investigation of potential tax crimes; and (ii) an independent DOJ investigation of the same tax crimes? Such a parallel investigation would necessarily involve grand jury matters bleeding into the so-called independent DOJ tax crimes investigation. Is that an improper use of grand jury matters in violation of Rule 6(e)?

Still another question in the context of the last paragraph is whether DOJ even has authority to investigate tax crimes independently of a grand jury investigation? In my past tilting with DOJ, DOJ attorneys have insisted that DOJ attorneys (then in the Tax Division) may investigate tax crimes independently of the grand jury. I have never been convinced that that is true. Some practitioners may remember William Webster’s statement that “CI is the only agency that can investigate potential criminal violations of the Internal Revenue Code.” William Webster, Review of the Internal Revenue Service’s Criminal Investigation Division (April 1999), to Charles O.  Rossotti, Commissioner IRS, Publication 3388 (4-1999), here ((known popularly as the “Webster Report;” bold-face supplied by JAT). Webster was no uninformed bystander making off-the-cuff claims; he had been a district and appellate judge, Director of the FBI, and director of the CIA (see Wikipedia here) who was appointed to make this Review with a substantial budget and team to get it right.

Of course, DOJ can certainly be an attorney for the Government in a grand jury investigation of tax crimes, but the question I raise here is whether DOJ has authority to investigate tax crimes independent of a grand jury investigation. Certainly, William Webster would have said so in his report if he thought or were aware that DOJ had independent authority to investigate tax crimes.

I thought I would have some opportunity to litigate this issue in United States v. Stein, a tax crimes case involving the KPMG BLIPS and other tax shelters which produced many opinions in SDNY and CA 2. The litigation involved the prosecution of 19 KPMG-related defendants in the 2000s. But, my client and 12 others were dismissed after much district court thrrashing around and  before I got to present that issue. See United States v. Stein, 541 F.3d 130 (2d Cir 2008), here (affirming the dismissal). That issue came up Stein because the DOJ attorneys (who served as attorneys for the Government in the grand jury proceeding) making the decision that a KPMG-employed person who was subject or target of the grand jury investigation was not “cooperating” in proffer sessions conveyed that information to KPMG who then fired the person. The question I thought would be worth pursuing was whether that notification to  KPMG to punish the noncooperating person was a violation of Rule 6(e) which it certainly would be if the Government attorneys were functioning solely as attorneys for the Government assisting the grand jury without independent authority to investigate tax crimes. (I also thought that the Government attorneys conveyed to KPMG that my client was not cooperating by virtue of invoking the Fifth Amendment privilege in the actual grand jury proceeding.)

The foregoing is a high-level discussion of areas of the law with many complexities, but I think it is a fair summary that others may be inspired to pursue further in appropriate circumstances.

JAT Comments:

1. Added 2/4/26 11:00am:  CNN today has this report that DOJ discovered that it’s persecutor-in-chief (perhaps clown but not in chief), Ed Martin, had disclosed grand jury material. Hannah Rabinowitz, Evan Perez & Paula Reid, Justice Department review found Trump ally Ed Martin improperly leaked grand jury material in probe of president’s foes (CNN 2/4/26), here. If true, the disclosure would violated Rule 6(e) and subject Martin to a criminal contempt charge. In addition, the article reports an allegation that “Martin initially denied sharing the material with unauthorized people when asked by department leaders, but emails soon surfaced showing that Martin had in fact shared the grand jury material.” Martin’s denial is also criminally chargeable as a false statement under 18 USC 1001. What do readers think is the likelihood of Martin being charged by this DOJ and, if charged, getting a Presidential pardon? Another instance of Trump’s many amateur hour appointments political actors to positions that should not be political and actors who are not very smart.

 JAT Diversion on William Webster:

1. Fun Fact (at least for me although a diversion for the subject of this blog entry): I handled a Government appeal from a case District Judge Webster decided for the taxpayer in a § 482 case. Liberty Loan Corp. v.  United States, 359 F.Supp. 158 (E.D.Mo.1973),  here. The Government won the case on appeal, reversing Judge Webster when he had already ascended to the Eighth Circuit. Liberty Loan Corp. v. United States, 498 F.2d 224 (8^th Cir. 1974), here. The reason Liberty Loan is on my mind is not just the coincidence of Judge Webster, but I see that Liberty Loan is cited twice in the Government’s Petition for Rehearing in 3M Company v. United States, 154 F.4^th  574 (8^th Cir. 2025). See Petition for Rehearing En Banc, filed 1/29/26, at p. 17, CL here and TN here. (I am not sure that the cited local page from Liberty Loan stands for the proposition that the Government proffers; nevertheless, I guess, one has to go with what one has.)