Federal Contractor Denied Access to Capitol Riot Grand Jury Records

(CN) — In a move that is likely to slow down prosecution of hundreds of criminal cases related to the Jan. 6 attack on the U.S. capitol, a federal judge in Washington rejected the government’s request to disclose grand jury materials to a private contractor hired to organize the evidence into a database.

In May, the Justice Department hired independent contractor Deloitte Financial Advisory Services to set up a database cataloging materials and evidence that the FBI has collected in connection with the Capitol riot. The government agreed to pay Deloitte $6.1 million to assist with document processing and discovery production.

Arguing that Deloitte’s expertise is essential to its ability to efficiently and effectively prosecute the cases, the government sought authorization to disclose grand jury matters related to the Capitol breach to the contractor and its personnel.

But Chief U.S. District Judge Beryl Howell rejected the request Friday, finding that the government had not shown that there was a “particularized need” to give the contractor’s staff access to grand jury records connected with possible criminal trials in nearly 500 currently pending cases.

In a 54-page ruling, Howell wrote that “the threat to grand jury secrecy posed by blanket disclosure to Deloitte is pronounced and cannot be outweighed by mere expediency.”

The government had argued that Deloitte would create a system to enhance prosecutors’ ability to comply with discovery obligations and protect defendants’ right to a fair trial by sharing exculpatory evidence.

The trove of data accumulated in the investigation has been described by the government as “the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence,” according to the ruling.

The evidence includes more than 14,000 hours of Capitol surveillance footage; over 300,000 tips from members of the public; location history data and cell tower data for thousands of electronic devices present inside the Capitol building during the insurrection; and more than 2 million posts, replies, videos, and images from the right-wing social media platform Parler.

Procedural rules prohibit, with only narrow exceptions, the disclosure of matters occurring before a grand jury to anyone outside the jury. The exceptions include allowing disclosure of materials to government personnel that an attorney for the government “considers necessary to assist in performing that attorney’s duty to enforce federal criminal law.”

The government has argued that Deloitte should be regarded as government personnel because it has been retained to help federal prosecutors in the performance of their duties.

“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,” Howell's opinion states.

But the judge ruled that the law only permits disclosure of grand jury materials to employees of public governmental entities.

The law “cannot be stretched to include a private contractor such as Deloitte, no matter how compelling the need for disclosure may be,” Howell wrote.

Howell cautioned that “unlimited disclosure” of grand jury materials to Deloitte could have unintended and undesirable effects.

The identity of witnesses testifying before the grand jury would be revealed to the contractor, “introducing the risk of chilling ‘the willingness and candor of witnesses called before the grand jury.’" The disclosure could also alert potential targets of the investigation who might decide to flee or interfere with the grand jury, according to the ruling.

Howell also pointed out that sharing grand jury materials with Deloitte “means that the materials to be disclosed may have been collected in connection with investigations of individuals who are never targeted, never charged, or exonerated.”

The ruling will likely delay prosecutions as the government works through the daunting process of producing discovery to defense attorneys.

A spokesperson for the Justice Department did not immediately respond to a request for comment Friday.

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