Giorgi Rtskhiladze v. Robert S. Mueller, Iii, Special Counsel for the Investigation Into Russian…

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 30, 2023 Decided August 9, 2024
No. 21-5243
GIORGI RTSKHILADZE,
APPELLANT
v.
ROBERT S. MUELLER, III, SPECIAL COUNSEL FOR THE
INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016
PRESIDENTIAL ELECTION AND UNITED STATES DEPARTMENT
OF JUSTICE,
APPELLEES
Consolidated with 22-3037
Appeals from the United States District Court
for the District of Columbia
(No. 1:20-cv-01591)
(No. 1:21-gj-00048)
Jerome A. Madden argued the cause and filed the briefs for
appellant.
Sean R. Janda, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were

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Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Michael S. Raab, Attorney.
Before: SRINIVASAN, Chief Judge, WALKER and PAN,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: In 2017, Special Counsel Robert
S. Mueller III began investigating allegations of Russian
government interference in the previous year’s presidential
election. To that end he empaneled a grand jury. One of the
witnesses who testified before it was Giorgi Rtskhiladze.1
When the Department of Justice released a redacted
version of Mueller’s final report, it included information that
allegedly injured Rtskhiladze. So he sued, seeking both
equitable and monetary relief. He also filed a separate
application to obtain a copy of the transcript of his grand jury
testimony.
The district court decided that Rtskhiladze lacked standing
to bring his equitable claims; that he failed to state a claim for
damages; and that he was not entitled to obtain a copy of the
transcript.2
We hold that Rtskhiladze has standing to bring all his
claims. So we remand for the district court to consider the
1 Rtskhiladze is pronounced “Ske-LAHD-zuh” in the audio version
of his memoir. https://www.youtube.com/watch?v=XJd9eWU8qgk.
2 Rtskhiladze brought a separate damages claim against DOJ and
Special Counsel Mueller personally. But the district court held that
Rtskhiladze abandoned this claim before appeal, and in any event, he
forfeited all arguments about this claim in his appellate brief.

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merits of the equitable claims that it dismissed for lack of
standing. However, we agree with the district court that
Rtskhiladze has failed to state a claim for damages. We also
agree with the decision to deny Rtskhiladze’s request to obtain
a copy of the transcript of his grand jury testimony.
I. Background
Giorgi Rtskhiladze was born in the Republic of Georgia,
which was then part of the Soviet Union. In the 1990s, he
moved to the United States and later became an American
citizen.
In 2016, rumors surfaced of “tapes” in Russia that might
create difficulties for Donald Trump’s presidential campaign.
JA 51. That year, Rtskhiladze sent a text message to Michael
Cohen, an attorney for candidate Trump. The text said
Rtskhiladze had: “Stopped flow of some tapes from Russia.”
JA 50 ¶ 31.
After President Trump’s election, DOJ appointed Special
Counsel Robert S. Mueller III to investigate allegations that
Russia had interfered in the election. Mueller empaneled a
grand jury and called Rtskhiladze as a witness. He then wrote
a report to DOJ about his findings. DOJ released a version of
the report to the public, which redacted (among other things)
references to grand jury materials.
The public report discusses Rtskhiladze in several places,
including footnote 112. See Special Counsel Robert S.
Mueller, III, Report on the Investigation into Russian
Interference in the 2016 Presidential Election, Volume II at 27
n.112 (March 2019), https://perma.cc/LBG3-8CHQ (“Mueller
Report”). That footnote contained several inaccuracies.

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First, it falsely called Rtskhiladze “Russian” when he is a
Georgian-American. Id. Second, it inaccurately quoted the
text that Rtskhiladze sent to Michael Cohen.3 Third,
Rtskhiladze says the footnote was vaguely drafted and created
false insinuations about his conduct.4
3 Compare Mueller Report, Volume II at 27 n.112, with JA 50 ¶ 31
(emphases added to illustrate discrepancy).
Inaccurate: “Stopped flow of
tapes from Russia but not sure
if there’s anything else. Just so
you know . . . .”
Accurate: “Stopped flow of
some tapes from Russia but not
sure if there’s anything else.
Just so u know . . .”
4 The footnote reads:
Comey 1/7/17 Memorandum, at 1-2; Comey 11/15/17 302,
at 3. Comey’s briefing included the Steele reporting’s
unverified allegation that the Russians had compromising
tapes of the President involving conduct when he was a
private citizen during a 2013 trip to Moscow for the Miss
Universe Pageant. During the 2016 presidential campaign,
a similar claim may have reached candidate Trump. On
October 30, 2016, Michael Cohen received a text from
Russian businessman Giorgi Rtskhiladze that said,
“Stopped flow of tapes from Russia but not sure if there’s
anything else. Just so you know . . . .” 10/30/16 Text
Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes”
referred to compromising tapes of Trump rumored to be
held by persons associated with the Russian real estate
conglomerate Crocus Group, which had helped host the
2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18
302, at 12. Cohen said he spoke to Trump about the issue
after receiving the texts from Rtskhiladze. Cohen 9/12/18
302, at 13. Rtskhiladze said he was told the tapes were
fake, but he did not communicate that to Cohen.
Rtskhiladze 5/10/18 302, at 7.
Mueller Report, Volume II at 27 n.112.

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According to Rtskhiladze, the Mueller Report’s
deficiencies harmed his reputation and cost him several
business deals — not the least because footnote 112 garnered
widespread media attention. He also alleges the deficiencies
altered the Georgian government’s plans to name Rtskhiladze
an “Honorary Consul,” which fell through after the report’s
release. JA 85.
Rtskhiladze later sued Mueller and DOJ. Invoking the
Administrative Procedure Act, the Declaratory Judgment Act,
and the Privacy Act, Rtskhiladze sought equitable relief:
specifically, a declaration that footnote 112 was inaccurate and
an order requiring DOJ to amend it. He also sought damages
under the Privacy Act.
While the suit was pending, the United States Senate
issued its own report about whether Russia interfered in the
2016 presidential election. The Senate Report included new
details about Rtskhiladze, correctly identified him as a
Georgian-American, and properly quoted the relevant text
message. See Senate Select Committee on Intelligence, 116th
Cong., Russian Active Measures Campaigns and Interference
in the 2016 U.S. Election, Volume V at 658-660 (November
2020), https://perma.cc/M4FL-75QV.
Reasoning that the Senate Report “is an independent and
unchallenged source of” the Mueller Report’s “facts and
implications,” the district court dismissed Rtskhiladze’s
equitable claims for lack of standing. JA 108. For the same
reason, the district court held that Rtskhiladze lacked standing
to seek damages for harms inflicted after the Senate Report’s
publication. As for damages before that point, the district court
held that Rtskhiladze had failed to state a claim.
Rtskhiladze appealed those decisions.

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To prepare for his appeal, Rtskhiladze started a second
action. He asked the district court for permission to review a
transcript of his grand jury testimony, take notes about it, and
prepare a declaration summarizing it for the court in his first
action. The district court granted each of those requests, which
are not in dispute.
Rtskhiladze also sought to obtain a copy of the transcript
of his grand jury testimony. His plan was to share that copy
with the public. See Oral Arg. Tr. at 6, 9-10. The district court
denied his request.
Rtskhiladze appealed that decision as well.
II. Analysis
We consider three issues: (1) Rtskhiladze’s equitable
claims; (2) his damages claim; and (3) his alleged right to
obtain a copy of the transcript of his grand jury testimony.
A. Equitable Claims
Rtskhiladze has standing to bring his equitable claims. See
U.S. Const. art. III.5
To establish standing, a plaintiff must demonstrate he has
“(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016).
5 Our review is de novo. Center for Law & Education v. Department
of Education, 396 F.3d 1152, 1156 (D.C. Cir. 2005).

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DOJ does little to dispute that Rtskhiladze has alleged an
injury caused by the Mueller Report. More saliently, DOJ says
that the court cannot equitably redress any such injury.
According to DOJ, the (accurate) Senate Report eliminated the
ongoing effects of the (inaccurate) Mueller Report.
We disagree. A government report (like the Senate
Report) does not extinguish the harm from an earlier
government report (like the Mueller Report) “where
reputational injury derives directly from an unexpired and
unretracted government action.” Foretich v. United States, 351
F.3d 1198, 1213 (D.C. Cir. 2003). “Case law is clear” in other
contexts that such an “injury satisfies the requirements of
Article III standing to challenge that action” — and the same is
true here in the Privacy Act context. Id.; cf. 5 U.S.C.
§ 552a(d)(2)(B)(i), (g)(2)(A).
The Mueller Report remains “unexpired and unretracted.”
Foretich, 351 F.3d at 1213. That’s because the Senate cannot
retract a report issued by DOJ, nor did the Senate Report
purport to do so. So the Mueller Report could continue to harm
Rtskhiladze in at least two ways. First, someone may find the
Mueller Report but not the Senate Report — in which case the
Mueller Report would still cause Rtskhiladze’s alleged injury.
Alternatively, readers of both reports may continue to believe
Mueller. After all, Congress neither speaks for DOJ, nor
speaks infallibly. Either way, a court could redress the ongoing
injury by ordering DOJ to correct the Mueller Report.
Such readers are not hypothetical here: Rtskhiladze
presented evidence that one of his reputational harms could be
solved by a “retraction” issued “from the Attorney General.”
See JA 120 n.2 (cleaned up). In other words, the alleged and
ongoing injury is traceable to DOJ’s Mueller Report, and it
could still be redressed by an order to correct it.

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DOJ argues that Rtskhiladze has no right to a full
retraction of the Mueller Report’s references to him because
some are accurate, and it’s the accurate information that’s
harming Rtskhiladze’s reputation. Perhaps. But in a
defamation suit, truth is a defense — not an impediment to
standing. See White v. Fraternal Order of Police, 909 F.2d
512, 518 (D.C. Cir. 1990). And though this is not a defamation
suit, the same logic applies. The (partial) truth of the Mueller
Report is a defense for DOJ — not a barrier to stop Rtskhiladze
from bringing his equitable claims.
We therefore reverse the district court’s decision to
dismiss Rtskhiladze’s equitable claims for lack of standing and
remand to the district court to address DOJ’s motion to dismiss
them for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).6
B. Damages Claim
Like the district court, we hold that Rtskhiladze has
standing to seek damages for injuries that DOJ allegedly
inflicted before the Senate Report’s release. Unlike the district
court, we hold that Rtskhiladze also has standing to seek
damages for injuries inflicted after that point.
As we explained above, the Mueller Report could still
harm Rtskhiladze regardless of what is in the Senate Report.
So for the same reasons Rtskhiladze has standing to seek
6 The district court did not consider the merits of Rtskhiladze’s
equitable claims (unlike his damages claim). Though DOJ briefed
merits arguments about why the equitable claims fail, we see no
reason to deviate from our “general practice” of remanding for the
district court to address those arguments in the first instance. See
Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 956 (D.C. Cir. 2016).

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equitable relief to redress ongoing injuries, he has standing to
seek monetary relief for those injuries.7
That said, Rtskhiladze has failed to plausibly state a claim
for monetary relief. See Fed. R. Civ. P. 12(b)(6).8
Recall that he sued for damages under the Privacy Act.
That Act requires plaintiffs seeking damages to show (among
other things) that a federal agency’s conduct was “intentional
or willful.” 5 U.S.C. § 552a(g)(4). The conduct “must be so
patently egregious and unlawful that anyone undertaking the
conduct should have known it unlawful.” Laningham v. United
States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (cleaned
up).
On appeal, Rtskhiladze has forfeited any argument that he
plausibly alleged “intentional or willful” conduct by DOJ.
Instead, he cites common-law defamation precedents. But this
is not a defamation suit, and the Privacy Act’s explicit text
requires Rtskhiladze to allege “intentional or willful” conduct.
5 U.S.C. § 552a(g)(4). So here, common law cases are not on
point.
7 On appeal, DOJ tries to rebut the district court’s analysis by offering
an alternative source of Rtskhiladze’s alleged injury — an August
2017 New Yorker article discussing Rtskhiladze’s connection to
President Trump. But that argument is belied by the facts. The
Georgian government began the process of appointing Rtskhiladze
as an “Honorary Consul” in the “summer and fall of 2017,” and
terminated his candidacy once the Mueller Report was released
almost two years later. JA 45, 85. The district court was right to
conclude that, given this timeline, Rtskhiladze plausibly alleged that
the Mueller Report (and not the article) harmed him.
8 Our review is de novo. See Momenian v. Davidson, 878 F.3d 381,
387 (D.C. Cir. 2017).

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Because Rtskhiladze has not even attempted to meet the
Privacy Act’s requirements, we affirm the district court’s
dismissal of his damages claim.
C. Obtaining the Grand Jury Transcript
The district court did not err by denying Rtskhiladze’s
request to obtain a copy of the transcript of his grand jury
testimony. By “obtain,” we mean gaining control of a
transcript copy rather than accessing one already in the
government’s control. See Fed. R. Crim. P. 6(e)(1). And by
“copy,” we mean a transcript not prepared by a witness (or his
attorneys) taking notes while he accesses the transcript of his
testimony.
1. Burden of Proof
Before assessing the district court’s decision, we must
resolve a threshold dispute. DOJ says Rtskhiladze bears the
burden of demonstrating a need to obtain a copy of the
transcript of his grand jury testimony. But Rtskhiladze says the
burden is on DOJ to establish why his request should be denied.
Rtskhiladze’s argument relies on two of our cases. But
neither provides the support he needs.
The first is In re Sealed Motion, 880 F.2d 1367 (D.C. Cir.
1989). There, we held that “a grand jury ‘witness’ in an
independent counsel proceeding” was “entitled to a copy of his
testimony” when “no indictment was returned and the Final
Report ha[d] been filed.” Id. at 1368. But that case was unique
because the Independent Counsel Act was “sui generis.” Id. at
1369.

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Students of the 1980s and ‘90s may remember that the Act
provided for an independent counsel with special powers
insulating him from executive-branch control, including
removal protections. See 28 U.S.C. § 596(a). “Because of an
independent counsel’s special powers, Congress provided
special procedures . . . to ensure fairness to the targets of such
investigations and to those touched by investigations.” In re
Sealed Motion, 880 F.2d at 1369-70 (emphasis added). And
those procedures implied an exception to “the general rule of
grand jury secrecy.” Id. at 1370.
Because the Independent Counsel Act expired long ago, In
re Sealed Motion does not control here. Though Mueller was
a special counsel, he was not an independent counsel. He
lacked some of the “special powers” enjoyed by the
independent counsels of the ‘80s and ‘90s — including
statutory protections against at-will removal. Id. at 1369; see
also 28 U.S.C. § 596(a)(1).
Outside of the independent counsel process, proceedings
are governed by “the general rule of grand jury secrecy”
in Federal Rule of Criminal Procedure 6(e). See In re Sealed
Motion, 880 F.2d at 1370; Fed. R. Crim. P. 6(e)(2)(B) (“Unless
these rules provide otherwise,” grand jurors, government
attorneys, and other specified personnel “must not disclose a
matter occurring before the grand jury . . . .”). Thus Rule
6(e) — and not the special procedure outlined in the
Independent Counsel Act — governs here.
Rtskhiladze relies on a second case: In re Grand Jury, 490
F.3d 978 (D.C. Cir. 2007). It held that grand jury “secrecy
rules” — the provisions of Federal Rule of Criminal Procedure
6(e) — “are no justification for denying witnesses access to
their own transcripts.” Id. at 989 (emphasis added in part).

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But on appeal, Rtskhiladze does not seek “access” to his
transcript — he already got that. And In re Grand Jury limited
its holding to “access” — not to obtaining a copy of the
transcript, which Rtskhiladze could keep as a record and
release to the public. See 490 F.3d at 987 (noting
commentators’ failure to “distinguish[ ] between having access
and obtaining a copy”); see also Oral Arg. Tr. at 6, 9-10. In
fact, In re Grand Jury expressly left open the question of what
factors “would justify denying copies of transcripts.” 490 F.3d
at 989-90.
To answer that open question, we apply the same
framework used in In re Grand Jury. We “weigh the
competing interests of the Government and grand jury
witnesses” given “the open-ended text of Rule 6(e)(3)(E)(i) and
the general analytical approach of the cases.” Id. at 987; see
also Fed. R. Crim. P. 6(e)(3)(E) (“The court may authorize
disclosure — at a time, in a manner, and subject to any other
conditions that it directs — of a grand-jury matter:
(i) preliminarily to or in connection with a judicial
proceeding . . . .”).9
First consider a witness’s interest in obtaining a copy of
his grand testimony. It is minimal — at least when, as here, he
has already received access to the transcript and has been
afforded a discretionary opportunity to take notes. See In re
Grand Jury, 490 F.3d at 990 (“We leave to the sound discretion
of the district court whether . . . to allow the witnesses or their
9 Rtskhiladze notes that Federal Rule of Criminal Procedure 6(e)
imposes secrecy requirements on the government, but not on
witnesses who testify before the grand jury. See In re Grand Jury,
490 F.3d at 989. True enough. But that does not mean we can ignore
Rule 6(e) in this case, or abandon the interest-balancing approach we
have developed when applying the Rule. See id. at 980, 987-88.

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attorneys to take notes.”). Unless the district court says
otherwise, such a witness could even write out his own version
of the transcript in his notes. He could take this self-made
transcript, walk outside, and “stand on the courthouse steps [to]
tell the public everything the witness was asked and answered.”
Id. at 989. That kind of witness can, in other words, do just
about everything that he might want to do by obtaining a copy.
Now consider the relevant interest of DOJ. That interest
is primarily in limiting “the possibility of witness intimidation”
to encourage honest testimony. Id. When it comes to a witness
obtaining a transcript of grand jury testimony, that interest is
significant. “[I]f a witness could routinely obtain a copy of the
grand jury transcript,” a third party could “pressure the witness
to obtain the transcript and to give it to that third party.” Id.
And the “fear of being forced to disclose the transcript to a
threatening third party could deter witnesses from testifying
freely and candidly in the first place.” Id.
DOJ’s interest is far less significant when the issue is
transcript access (what Rtskhiladze was granted) rather than
obtaining a copy of the transcript (what Rtskhiladze was
denied). Witnesses with access remain free to protect
themselves by misleading any third parties who threaten them.
Consider that someone like a court reporter preparing a
transcript copy has every incentive to be complete and
accurate. Conversely, if a witness transcribes the transcript in
his notes, he could alter or omit details if needed to protect
himself. So “denying witnesses access to their own transcripts
to help prevent witnesses from talking to others makes little
sense.” Id.; see also id. at 990 (“Grand jury witnesses are not
substantially more likely to face pressure to divulge
information about their grand jury testimony if they can review
their transcript in private than if they have to recall their
testimony from memory.”).

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That difference — between DOJ’s interest in blocking
transcript access (In re Grand Jury) and its interest in blocking
a witness from obtaining a copy of the transcript (this
case) — explains why the interest balancing is not identical in
the two cases.
To sum up, the district court should weigh the interests of
the government against those of the witness when deciding
whether a witness can obtain a copy of his grand jury
transcript. So the district court was correct when it refused to
create a rule automatically permitting witnesses to obtain a
copy of their grand jury transcripts. The burden is on the
witness to provide an interest of his own for the district court
to consider. And when the district court weighs that interest
against the government’s, we will review its decision for an
abuse of discretion. See id. at 990.
2. Review of the District Court’s Exercise of Discretion
Applying abuse-of-discretion review, we have little
trouble affirming the decision of the district court.
Rtskhiladze’s interest in obtaining a copy of his transcript
is minimal. He fails to convincingly explain what he would
gain by obtaining a copy of a transcript he has already accessed
and could have transcribed. While we do not rule out the
possibility that some future witness might provide a convincing
reason for obtaining a copy of the transcript of his grand jury
testimony, Rtskhiladze has provided none here. In contrast,

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DOJ has a significant interest in not chilling the testimony of
future grand jury witnesses.10
We therefore hold that the district court did not abuse its
discretion when it denied Rtskhiladze’s request to obtain a
copy of his grand jury transcript.
III. Conclusion
The district court held that Rtskhiladze lacked standing to
bring his equitable claims. We reverse that decision and
remand those claims.
We agree with the district court that Rtskhiladze has
standing to bring his damages claim for alleged injuries
suffered before the Senate Report’s release. But unlike the
district court, we conclude that Rtskhiladze also has standing
to sue for damages for alleged harms after the Senate Report’s
release.
Though Rtskhiladze has standing to sue for damages, he
has failed to state a claim for which relief can be granted. So
we affirm the district court’s dismissal of that claim.
10 Rtskhiladze says he should be allowed to publish a copy to
counteract DOJ’s alleged publication of other parts of his testimony
that portray him a negative light. But he never identifies where DOJ
made those disclosures. None of footnote 112 was redacted to block
grand jury information — though much of the Mueller Report is
redacted for that reason — and the footnote does not cite grand jury
testimony at any point. And the footnote contains citations to other
sources that Rtskhiladze does not challenge.

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Finally, the district court concluded that Rtskhiladze is not
entitled to obtain a copy of his grand jury transcript. That
decision was not an abuse of discretion, so we affirm.
So ordered.

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