Elliot Carlson v. United States , 837 F.3d 753 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2972
ELLIOT CARLSON, et al.,
Petitioners-Appellees,
v.
UNITED STATES OF AMERICA,
Respondent-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9244 — Rubén Castillo, Chief Judge.
____________________
ARGUED FEBRUARY 18, 2016 — DECIDED SEPTEMBER 15, 2016
____________________
Before WOOD, Chief Judge, and KANNE and SYKES, Circuit
Judges.
WOOD, Chief Judge. During World War II, the U.S. Office of
War Information warned the populace that “loose lips sink
ships.” See The Phrase Finder, http://www.phrases.org.uk/
meanings/237250.html (last visited Sept. 15, 2016). But what if
the ships sailed some 70 years before the tongues wag? That
is the problem we face in the present case, in which Elliot Carl-
2 No. 15-2972
son, along with a number of scholarly, journalistic, and his-
toric organizations, seeks access to grand-jury materials
sealed decades ago. The materials concern an investigation
into the Chicago Tribune in 1942 for a story it published reveal-
ing that the U.S. military had cracked Japanese codes. The
government concedes that there are no interests favoring con-
tinued secrecy. It nonetheless resists turning over the materi-
als, on the sweeping ground that Rule 6(e) of the Federal
Rules of Criminal Procedure entirely eliminates the district
court’s common-law supervisory authority over the grand
jury. It takes the position that no one (as far as we can tell) has
the power to release these documents except for one of the
reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carl-
son and his allies must fail, because his request is outside the
scope of Rule 6(e).
We find nothing in the text of Rule 6(e) (or the criminal
rules as a whole) that supports the government’s exclusivity
theory, and we find much to indicate that it is wrong. In fact,
the Rules and their history imply the opposite, which is why
every federal court to consider the issue has adopted Carl-
son’s view that a district court’s limited inherent power to su-
pervise a grand jury includes the power to unseal grand-jury
materials when appropriate. Because the parties agree that
this is an appropriate instance (if, in fact, the district court has
this power) we affirm the order of the district court.
I
The story behind our case is a thrilling one, involving es-
pionage, World War II, and legal wrangling. The year is 1942;
the setting, the Pacific Theater. After Pearl Harbor was at-
tacked in December 1941, the shocked U.S. Navy sprang into
action. The Japanese military hoped to sink the remainder of
No. 15-2972 3
the U.S. fleet and was aiming to do so in an attack on Midway
Island and the Aleutian Islands, nearly 2,000 miles away, in
June 1942. The Japanese planned to invade the Aleutians with
a small detachment so as to lure U.S. ships out of their safe
harbors, then attack those ships with a larger force while sim-
ultaneously invading and occupying Midway as the U.S.
Navy was distracted. See NORMAN STONE, WORLD WAR TWO
123–24 (2012). Instead, the U.S. Navy forces pulled off a stun-
ning victory, defending Midway and sinking all five carriers
that the Japanese had devoted to the operation, as well as
some other ships. The victory at Midway was widely seen as
a turning point in the Pacific. Id. at 124.
How did the U.S. Navy know its plan would work? Unbe-
knownst to Japan, the United States had broken some critical
Japanese codes some two years earlier. ANTHONY BEEVOR, THE
SECOND WORLD WAR 307 (2012). The U.S. Navy was thus able
to figure out beforehand that Japan’s attack on the Aleutians
was a feint, and Japan’s real goal was to overtake Midway and
sink U.S. aircraft carriers in the process. STONE, supra, at 123.
As the commander-in-chief of the U.S. Pacific Fleet explained
in a later report, “[h]ad we lacked early information of the
Japanese movement … the Battle of Midway would have
ended far differently.” BEEVOR, supra, at 311.
This explains why senior U.S. officials were so dismayed
when the Chicago Tribune blew their secret. On June 7, 1942,
the Chicago Tribune’s banner headline announced victory in
the Battle of Midway. Right below, the Tribune dropped an-
other bombshell: “Navy Had Word of Jap Plan to Strike at
Sea.” Stanley Johnston, CHICAGO TRIBUNE, June 7, 1942, at A1.
The article explained that the United States knew that Japan
4 No. 15-2972
was planning a minor attack on one American base as a dis-
traction from a major attack on another, and this advance no-
tice enabled the Navy to plan its victorious counterattack. The
article appeared to be—and as we now know, in fact was—
based on a classified Navy communiqué that alerted naval
commanders to the impending attack on Midway Island.
The article’s publication had immediate consequences:
President Roosevelt and high-ranking military officials called
for a criminal investigation. The Department of Justice com-
plied, empaneling a grand jury and launching an investiga-
tion into whether the article’s author and other Tribune staff
had violated the Espionage Act of 1917. The grand jury heard
testimony from an assortment of witnesses, including Tribune
personnel, several identified military officers, and three or
four unknown officers. Ultimately, the grand jury did not is-
sue any indictments, a decision that the Tribune and other
prominent national newspapers hailed as a victory for free
speech.
Fast forward to the present, more than 70 years later. Elliot
Carlson is a journalist and historian with a special expertise
in naval history. He is the author of Joe Rochefort’s War: The
Odyssey of the Codebreaker Who Outwitted Yamamoto at Midway,
an award-winning book on the commander who broke one of
the Japanese codes. Carlson is currently writing a book on the
Tribune’s Midway article and the ensuing investigation. Carl-
son and his co-plaintiffs (to whom we refer in the singular as
“Carlson” for simplicity’s sake) filed a petition in the North-
ern District of Illinois asking that court to unseal the tran-
scripts of witness testimony before the Tribune grand jury.
Carlson chose the Northern District of Illinois because it
was the court that originally had supervisory jurisdiction over
No. 15-2972 5
the grand jury in question. He argued that this same court has
continuing common-law authority over matters pertaining to
that grand jury, including any application to unseal grand-
jury materials. The convening court, for instance, would have
the authority to rule on disclosure pursuant to Federal Rule
of Criminal Procedure 6(e). Carlson acknowledged that his re-
quest falls outside the scope of the circumstances for releasing
grand jury materials enumerated in the Rule. Nonetheless, re-
lying on In re Craig, 131 F.3d 99 (2d Cir. 1997), Carlson argued
that the district court has the inherent power to release grand-
jury materials in situations not contemplated by Rule 6(e). He
concedes that just as other inherent powers of the court
should not be exercised lightly, see Dietz v. Bouldin, 136 S. Ct.
1885, 1893 (2016); Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991), this power too is tightly circumscribed. Craig identifies
numerous factors that a court should weigh when exercising
this limited inherent power.
Carlson argued that his request satisfied these criteria, and
the district court agreed with him. It decided first that it pos-
sessed the inherent authority to unseal grand-jury materials
in situations outside the scope of Rule 6(e)(3)(E). It considered
each point identified by Craig and concluded that disclosure
in this case was warranted. It thus ordered that the transcripts
be released. The government has appealed (and the order has
been stayed pending appeal). The government agrees that if
the district court has inherent authority to unseal grand-jury
records, then “the transcripts have sufficient historical value
to warrant release” under the Craig factors. It argues, how-
ever, that Rule 6(e) contains the exclusive list of reasons for
which a district court may unseal grand-jury materials, and
because historical value is not among them, the court was
wrong to grant Carlson’s petition.
6 No. 15-2972
II
Before turning to the merits of the appeal, we must assure
ourselves that both the district court and we have jurisdiction
over this matter. Because neither Carlson nor any of his fellow
petitioner-appellees were parties to the underlying grand jury
investigation, we must confirm that at least one of them has
standing to bring this claim. See Ezell v. City of Chicago, 651
F.3d 684, 696 n.7 (7th Cir. 2011) (“Where at least one plaintiff
has standing, jurisdiction is secure[,]” citing Vill. Of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977)).
And because Carlson does not invoke a Federal Rule of Crim-
inal Procedure as the basis for granting his petition to obtain
the records, relying instead on the court’s inherent power, we
must confirm that we have subject-matter jurisdiction. We so-
licited supplemental briefs from the parties on these im-
portant points.
A
1
As a member of the public, Carlson has standing to assert
his claim to the grand-jury transcripts, because they are public
records to which the public may seek access, even if that effort
is ultimately unsuccessful (perhaps because of sealing, na-
tional security concerns, or other reasons). Article III of the
Constitution limits the federal courts’ power to the adjudica-
tion of actual “Cases” and “Controversies.” U.S. CONST. Art.
III. The doctrine of standing has “developed … to ensure that
federal courts do not exceed” this authority. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). To have standing, a plain-
tiff “must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and
No. 15-2972 7
(3) that is likely to be redressed by a favorable judicial deci-
sion.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992)). We review each element in turn.
Carlson’s injury-in-fact is the denial of access to govern-
ment documents that he has a right to seek. A plaintiff suffers
an injury-in-fact when she is unable to obtain information that
is statutorily subject to public disclosure. Federal Elec. Comm’n
v. Akins, 524 U.S. 11, 20–21 (1998); Public Citizen v. Dep’t of Jus-
tice, 491 U.S. 440, 449 (1989). Injury-in-fact can arise from a
comparable common-law source. See Spokeo, 136 S. Ct. at
1549; Id. at 1550–53 (Thomas, J., concurring) (explaining that
plaintiffs asserting common-law injuries can more easily
demonstrate injury-in-fact than others). Carlson needs only a
“colorable claim” to a right to access these documents, be-
cause “[w]ere we to require more than a colorable claim, we
would decide the merits of the case before satisfying our-
selves of standing.” See Booker-El v. Superintendent, Ind. State
Prison, 668 F.3d 896, 900 (7th Cir. 2012); see also Bond v. Utre-
ras, 585 F.3d 1061, 1073 (7th Cir. 2009).
Thus the question becomes whether Carlson has a colora-
ble claim of a right to obtain access to these documents. He
does. Carlson argues that grand-jury records are court docu-
ments; he argues further that under the circumstances of this
case he has a right to review them. Although the grand jury
operates according to a “tradition of independence,” United
States v. Williams, 504 U.S. 36, 47 (1992), “[t]he Constitution
itself makes the grand jury part of the judicial process.” Cob-
bledick v. United States, 309 U.S. 323, 327 (1940); see also
Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (“the powers of
the grand jury are … subject to the supervision of a judge”);
Levine v. United States, 362 U.S. 610, 617 (1960) (the grand jury
8 No. 15-2972
is “an arm of the court”); Brown v. United States, 359 U.S. 41,
49 (1959) (“[a] grand jury is clothed with great independence
in many areas, but it remains an appendage of the court”)
overruled on other grounds by Harris v. United States, 382 U.S.
162 (1965); Blair v. United States, 250 U.S. 273, 278 (1919) (“the
inquisitorial function of the grand jury … [is] incident[ to] the
judicial power of the United States”).
Because the grand jury is “part of the judicial process,”
Cobbledick, 309 U.S. at 327, its “minutes and transcripts” are
necessarily “records of the court.” United States v. Procter &
Gamble Co., 356 U.S. 677, 684–685 (1958) (Whittaker, J., concur-
ring); see also Standley v. Dep’t of Justice, 835 F.2d 216, 218 (9th
Cir. 1987) (“grand jury materials are records of the district
court”); In re Grand Jury Investigation of Cuisinarts, Inc., 665
F.2d 24, 31 (2d Cir. 1981) (“Cuisinarts”) (same); United States v.
Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (same). And be-
cause they are records of the court, Carlson has a right to pe-
tition for access to them: the public has “a general right to in-
spect and copy public records and documents, including ju-
dicial records and documents.” Nixon v. Warner Commc'ns,
Inc., 435 U.S. 589, 597 (1978). The denial at the threshold of the
right to petition for access inflicts an injury-in-fact on Carlson.
See Akins, 524 U.S. at 20–21; Public Citizen, 491 U.S. at 449. That
his petition is not guaranteed to be granted, because a court
may find a valid justification for denying him access, in no
way destroys his standing to seek the documents. See Nixon,
435 U.S. at 598–99; United States v. Corbitt, 879 F.2d 224, 228
(7th Cir. 1989). To hold otherwise would amount to denying
standing to everyone who cannot prevail on the merits, an
outcome that fundamentally misunderstands what standing
is. See Booker-El, 668 F.3d at 900; Bond, 585 F.3d at 1073.
No. 15-2972 9
For public documents such as these, there is no need for
Carlson to show that he has any particular connection to the
grand jury proceeding. As we explained in Jessup v. Luther,
“[r]epresentatives of the press and general public must be
given an opportunity to be heard on the question of … access
to documents.” 227 F.3d 993, 997 (7th Cir. 2000); see also Cor-
bitt, 879 F.2d at 228–29 (entertaining newspaper’s request to
see sealed pre-sentence report, and analogizing pre-sentence
report to grand jury materials). To hold otherwise would raise
First Amendment concerns. Cf. United States v. Edwards, 672
F.2d 1289, 1294 (7th Cir. 1982) (recognizing that the “common
law right” of public access to court records “supports and fur-
thers many of the same interests which underlie those free-
doms protected by the constitution”); Globe Newspaper Co. v.
Sup. Ct. for Norfolk Cnty., 457 U.S. 596, 604, 607 (1982) (holding
First Amendment guarantees access to criminal trials, and
limitations on access are subject to strict scrutiny); Butterworth
v. Smith, 494 U.S. 624, 630 (1990) (reiterating, in the context of
prohibiting a witness from discussing his testimony, “grand
juries are expected to operate within the limits of the First
Amendment”). That Carlson is a member of the public is suf-
ficient for him to assert his “general right to inspect and copy
… judicial records.” Nixon, 435 U.S. at 597.
The administrative reality that the physical documents are
currently housed in a facility operated by the National Ar-
chives and Records Administration (NARA), rather than in a
storeroom controlled by the district court, does not change
this analysis. NARA is an office of the executive branch; it
manages archival documents “to ensure their continued
preservation by the United States Government.” 44 U.S.C.
§ 2107(1). The Judiciary uses NARA to store old paper case
10 No. 15-2972
files. See National Archives, www.archives.gov/research/cat-
alog/ (last visited Sept. 15, 2016) (search for court records).
Rule 6(e)(1) explains that after the conclusion of a grand-jury
investigation, the government’s attorneys will “retain con-
trol” of grand-jury materials, “[u]nless the court orders other-
wise.” This indicates that the grand-jury materials are subject
to the court’s control. The Committee Notes on Rule 6 further
make this clear by explaining that the amendment was en-
acted to “accord with present practice,” but that the Commit-
tee “specifically recognized … that the court in a particular
case may have reason to order otherwise.” FED. R. CRIM. P.
6(e), Committee Notes 1979. Even when grand-jury materials
are in the custody of government attorneys, they “remain the
records of the courts, and courts must decide whether they
should be made public.” Cuisinarts, 655 F.2d at 31.
Carlson easily satisfies the other two elements of Article
III standing. His injury-in-fact is traceable to the respondent’s
denial of access to the grand-jury materials. That injury would
be redressed by a court order granting him the relief he
seeks—access to the transcript. Thus, Carlson has standing to
seek access to grand jury materials.
Our decision in Bond v. Utreras is not to the contrary—in-
deed, it supports this position. 585 F.3d 1061 (7th Cir. 2009).
In Bond, we drew a sharp line between civil pre-trial discovery
documents that were never filed with the court and docu-
ments that were filed with the court. Id. at 1066. We held that
“documents filed in court are presumptively open to the pub-
lic” and explained that this right of access “is derived from …
common-law,” codified by statute, and any “judicially im-
posed limitations on this right are subject to the First Amend-
ment.” Id. at 1073–74 (emphasis added) (citing, inter alia, 28
No. 15-2972 11
U.S.C. § 452; Globe Newspaper Co., 457 U.S. at 603–06). We em-
phasized that although a court may ultimately decide to
shield certain documents from the public, the “general right
of public access … is enough to give members of the public
standing” to seek them. Id. at 1074. In contrast, there is no stat-
utory, rule-based, common-law, or constitutional right of the
public to obtain discovery documents that are never filed with
the court (and that is typically the status of the overwhelming
majority of the documents exchanged in civil discovery). A
non-party thus has no right to intervene to seek them. Id. at
1074–76 (citing SEC v. TheStreet.com, 273 F.3d 222, 233 n.11 (2d
Cir. 2001)).
The grand-jury transcripts that Carlson seeks are not like
privately produced civil discovery that never makes it
through the courthouse door. They are created under the au-
thority of the grand jury, and they remain at all times under
the power of the court. The Supreme Court has said that “[a]t
the foundation of our federal government the inquisitorial
function of the grand jury and the compulsion of witnesses
were recognized as incidents of the judicial power of the
United States.” Blair, 250 U.S. at 280. A grand jury cannot cre-
ate any materials without the power of the court being used
to empanel the grand jury and issue and enforce its subpoe-
nas. Levine, 362 U.S. at 617. Grand-jury transcripts are pro-
duced under “the supervision of” the district court,
Branzburg, 408 U.S. at 688, and as a result they represent an
exercise of the court’s power; they are “filed with the court,”
Bond, 585 F.3d at 1073. They constitute a form of judicial pa-
pers.
Because grand-jury transcripts are, in their very nature, ju-
dicial documents (just as a transcript of a trial would be), there
12 No. 15-2972
is no need for them to become part of the judicial proceeding
through admission into evidence. Smith v. U.S. Dist. Court for
S. Dist. of Ill., 956 F.2d 647, 650 (7th Cir. 1992) (judicial records
to which there is a presumptive right of access include “tran-
scripts of proceedings” and “items not admitted into evi-
dence”). Thus, the presumptive right of access attaches and is
sufficient to “give members of the public standing.” Bond, 585
F.3d at 1073–74. Carlson asserts a common-law right, and is
therefore unlike the journalist in Bond who could point to “no
constitutional or common-law right” to un-filed pre-trial dis-
covery materials. Id. at 1066. And we reiterate that the fact that
a rule of criminal procedure or another compelling reason
might lead to the denial of Carlson’s request in no way affects
his standing.
2
Our conclusion that the records Carlson is seeking are
court records makes it unnecessary for us to reach his alterna-
tive arguments: that they are agency records to which he has
a statutory right of access under the Freedom of Information
Act, 5 U.S.C. § 552, or NARA’s enabling statute and imple-
menting regulations, 44 U.S.C. § 2108(a); or that he has an in-
dependent common-law right to petition the court for access
to them, which gives him an independent basis for standing.
B
The next question is whether the district court was author-
ized to entertain this case. We are satisfied that it was. The
court had federal-question jurisdiction under 28 U.S.C. § 1331because this is an action “arising under the Constitution, laws,
or treaties of the United States.” Id. That Carlson is relying
No. 15-2972 13
primarily on federal common law does not change this anal-
ysis. See Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845, 850 (1985). Because the case raises a substantial
question relating to the scope and meaning of Rule 6(e), fed-
eral-question jurisdiction is also proper under Franchise Tax
Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 28, 103 (1983). See also Turner/Ozanne v. Hy-
man/Power, 111 F.3d 1312, 1316 (7th Cir. 1997). Resolving that
question requires an examination of the relation between the
Federal Rules of Criminal Procedure and a long-standing
common-law right, thus necessarily raising a substantial fed-
eral question. Appellate jurisdiction is proper because the dis-
trict court’s order requiring disclosure finally resolves the
only matter that was at issue. See 28 U.S.C. § 1291.
III
A
With the jurisdictional brush cleared away, we are ready
to reach the merits. The institution of the grand jury reaches
as far back as twelfth century England, when the common law
itself was developing. See, e.g., Mark Kadish, Behind the Locked
Door of an American Grand Jury: Its History, Its Secrecy, and Its
Process, 24 FLA. ST. U. L. REV. 1 (1996); Alfredo Garcia, The Fifth
Amendment: A Comprehensive and Historical Approach, 29 U.
TOL. L. REV. 209, 227–34 (1998). In the United States, it has been
understood as “a constitutional fixture in its own right” that
operates “in the courthouse and under judicial auspices.” Wil-
liams, 504 U.S. at 47.
The grand jury is not a free-floating institution, accounta-
ble to no one. It is an “arm of the court,” and thus falls under
the supervisory authority of the district court. See Levine, 362
14 No. 15-2972
U.S. at 617. It thus follows, as the Supreme Court confirmed
both before and after the Criminal Rules were adopted, that
the disclosure of sealed grand jury materials is “committed to
the discretion of the trial judge.” Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395, 399 (1959) (after the Rules were
adopted); United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
234 (1940) (before). The question is how the Federal Rules of
Criminal Procedure, and in particular Rule 6(e), affect this
power.
The inherent supervisory power of the court over the
grand jury is well established. The “Constitution itself makes
the grand jury a part of the judicial process.” Levine, 362 U.S.
at 617. For example, a grand jury may initiate prosecutions
only “under general instructions from the court to which it is
attached and to which, from time to time, it reports its find-
ings.” Id.; see also 18 U.S.C. § 3331 (district court’s power to
summon grand jury); FED. R. CRIM. P. 6(a) (same). And the
grand jury may rely on the court’s authority to “compel a wit-
ness to appear” only because it is an “arm of the court.” Lev-
ine, 362 U.S. at 617; see also 28 U.S.C. § 1826(a) (district court’s
power to issue subpoena); FED. R. CRIM. P. 17(a) (same); In re
Grand Jury Proceedings, 507 F.2d 963, 965 n.2 (3d Cir. 1975) (dis-
cussing the same).
The matters over which the court exercises supervisory
authority range from the mundane to the weighty. They in-
clude routine decisions regarding the daily operation of the
grand jury when Rule 6 is ambiguous on a particular detail.
For example, prior to 1979, Rule 6(d) stated that recording
grand-jury proceedings was optional—“a stenographer or
operator of a recording device may be present while the grand
jury is in session”—but it did not specify who decided what
No. 15-2972 15
to do. Every court to consider the issue said that this decision
was left to the discretion of the trial court. See United States v.
Price, 474 F.2d 1223, 1225 (9th Cir. 1973) (“recordation of
grand jury proceedings should be routine and nonrecordation
should be permissible only in exceptional circumstances”);
United States v. Aloisio, 440 F.2d 705, 708 & n.2 (7th Cir. 1971);
Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967) (not-
ing prosecutor’s practice of not recording and stating,
“[w]hether, under our supervisory power … we should now
… condemn [this practice] for the future, is not presented.”).
Given the grand jury’s role as an independent body, how-
ever, the district court’s supervisory power is “a very limited
one.” Williams, 504 U.S. at 50. It does not “permit judicial re-
shaping of the grand jury institution.” Rather, it may be used
only to “preserve or enhance the traditional functioning” of
the grand jury. Id. For example, a district court does not have
the power to order a prosecutor to present exculpatory evi-
dence to a grand jury. Such an order would be inappropriate
because, rather than “enhancing the traditional functioning”
of a grand jury, it would “alter the grand jury’s historical role.”
Id. at 50–51.
Yet this limited inherent supervisory power has histori-
cally included the discretion to determine when otherwise se-
cret grand-jury materials may be disclosed. Prior to the adop-
tion of the Federal Rules of Criminal Procedure, the Supreme
Court held that release of sealed grand jury materials “rests
in the sound discretion of the [trial] court” and “disclosure is
wholly proper where the ends of justice require it.” Socony-
Vacuum Oil Co., 310 U.S. at 233–34.
The advent of the Criminal Rules did not eliminate a dis-
trict court’s inherent supervisory power as a general matter.
16 No. 15-2972
Rule 57(b) recognizes that the rules are not designed to be
comprehensive; instead, it says, “when there is no controlling
law … [a] judge may regulate practice in any manner con-
sistent with federal law, these rules, and local rules of the dis-
trict.” FED. R. CRIM. P. 57(b). (This Rule has remained substan-
tively the same since the original 1944 version.) To be sure,
the court is powerless to contradict the Rules where they have
spoken, just as the court cannot contradict a statute. Dietz, 136
S. Ct. at 1892; Carlisle v. United States, 517 U.S. 416, 420–21
(1996); Bank of Nova Scotia v. United States, 487 U.S. 250, 255
(1988). But it is Rule 57(b), not Carlisle or Bank of Nova Scotia,
that informs us what a court may do when the Rules are silent.
The Supreme Court has repeatedly stated that permissive
rules do not “abrogate the power of the courts” to exercise
their historic “inherent power” when doing so does not con-
tradict a rule. Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (with
respect to FED. R. CIV. P. 41(b)). Just this year, it said so again.
Dietz, 136 S. Ct. at 1891–92. A permissive rule—that is, a rule
that permits a court to do something and does not include any
limiting language—should not give rise to a negative infer-
ence that it abrogates the district court’s inherent power with-
out a “clear[] expression of [that] purpose.” Link, 370 U.S. at631–32; G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d
648, 652 (7th Cir. 1989) (“mere absence of language in the fed-
eral rules specifically authorizing or describing a particular
judicial procedure should not, and does not, give rise to a neg-
ative implication of prohibition”).
This general principle applies to Rule 6, which has been
construed not to eliminate the limited inherent supervisory
authority the district courts have historically wielded over the
administration of a grand jury. As the Supreme Court put it,
No. 15-2972 17
Rule 6(e) is “but declaratory” of the long-standing “principle”
that “disclosure” of grand jury materials is “committed to the
discretion of the trial court.” Pittsburgh Plate Glass Co., 360 U.S.
at 399. Since then, the Court has “stressed that wide discretion
must be afforded to district court judges in evaluating
whether disclosure is appropriate.” United States v. John Doe,
Inc. I, 481 U.S. 102, 116 (1987); Pittsburgh Plate Glass Co., 360
U.S. at 400 (“This Court has long held that there are occasions
when the trial judge may in the exercise of his discretion order
the minutes of a grand jury witness produced for use on his
cross-examination at trial. Certainly disclosure is wholly
proper where the ends of justice require it.” (internal citations
and quotation marks omitted)); Douglas Oil Co. of California v.
Petrol Stops Northwest, 441 U.S. 221, 223 (1979) (“[W]e empha-
size that a court called upon to determine whether grand jury
transcripts should be released necessarily is infused with sub-
stantial discretion.”); see also Procter & Gamble Co., 356 U.S. at
689. Thus, the existence of Rule 6 does not, by itself, eliminate
the court’s power to address situations that the Rule does not
describe.
B
The government urges, however, that there is a textual ba-
sis in the rule that supports its position. We therefore turn to
a closer examination of the Rule’s language. Rule 6(e) is enti-
tled “Recording and Disclosing the Proceedings [of the grand
jury].” Subpart (1) requires that the proceedings be recorded.
Subpart (2) is entitled “secrecy.” Rule 6(e)(2)(A) states that “no
obligations of secrecy may be imposed on any person except
in accordance with Rule 6(e)(2)(B).” Rule 6(e)(2)(B) provides
that “[u]nless these rules provide otherwise, the following
persons must not disclose a matter occurring before the grand
18 No. 15-2972
jury … .” The list identifies seven types of people who fall
within that prohibition: a grand juror; an interpreter; a court
reporter; an operator of a recording device; a person who
transcribes recorded testimony; an attorney for the govern-
ment; or a person to whom disclosure is made under Rule
6(e)(3)(A)(ii) or (iii). Rule 6(e)(3), sets out some exceptions to
the norm of nondisclosure. Subsection (A), (B), and (C) of Rule
6(e)(3) describe when grand jury materials can be disclosed
without the court’s permission—for instance, to other govern-
ment attorneys or other grand juries—and contain limitations
on the purposes for which that disclosed information can be
used. Subsection (D) relates to foreign intelligence and similar
materials; it is not involved here.
Subsection (E), that is, Rule 6(e)(3)(E), is the section at is-
sue here: it describes disclosures that the court may authorize.
It states:
(E) The court may authorize disclosure—at a time, in a
manner, and subject to any other conditions that it di-
rects—of a grand jury matter
(i) preliminarily to or in connection with a judi-
cial proceeding;
(ii) at the request of a defendant who shows
that a ground may exist to dismiss the indict-
ment because of a matter that occurred before
the grand jury; …
and at the request of (iii) a foreign government; (iv) tribal gov-
ernment; or (v) U.S. military, all for the purpose of enforcing
their respective criminal laws. FED. R. CRIM. P. 6(e)(3)(E).
No. 15-2972 19
The government’s primary textual argument is that the
phrase “[u]nless these rules provide otherwise,” which ap-
pears only in Rule 6(e)(2)(B), somehow carries over to all of
Rule 6 and provides conclusive proof that the court’s power
in subpart (3)(E) is limited to the purposes listed under that
heading. This makes no sense, either as a reading of Rule 6(e)
or as a general matter of statutory (or rule) construction. The
government provides no explanation for why a limitation
buried in subsection (B) of subpart (2) of Rule 6(e) secretly ap-
plies to the rule as a whole, or even worse (as it seems to be
saying) to an entirely different subpart. We do not know of
any principle of interpretation supporting this position, nor
could the government provide us with any examples at oral
argument.
It is far more reasonable to read Rule 6(e)(2)(B) as specify-
ing, “unless these rules provide otherwise,” which persons
are bound to keep grand-jury materials secret, and then to
read Rule 6(e)(3)(E) as telling the court to whom it “may” au-
thorize disclosure, without indicating anywhere that the list
is exclusive. There is nothing odd or counterintuitive in hav-
ing one rule for disclosures that may not occur without court
supervision, and a different rule for disclosures specifically
ordered by the court.
Nor can we find language elsewhere in the rule support-
ing the government’s exclusivity theory. The government
suggests that it is helped by Rule 6(e)(6), which states,
“[r]ecords, orders, and subpoenas relating to grand-jury pro-
ceedings must be kept under seal to the extent and as long as
necessary to prevent the unauthorized disclosure[.]” This tells
us that “disclosure of matters occurring before a grand jury is
the exception and not the rule.” Fund for Constitutional Gov’t
20 No. 15-2972
v. Nat’l Archives & Records Serv., 656 F.2d 856, 868 (D.C. Cir.
1981). But it says nothing about when disclosures are “unau-
thorized.”
The few hints that we find in the text of Rule 6(e) all indi-
cate that the list in subpart (3)(E) is not exclusive. The presence
of limiting language elsewhere in Rule 6(e), in (2)(B), indicates
that its absence in (3)(E) is intentional. FED. R. CRIM. P.
6(e)(2)(B). A rule of nonexclusivity does not mean that Rule
6(e)(3)(E) is pointless: it would be entirely reasonable for the
rulemakers to furnish a list that contains frequently invoked
reasons to disclose grand-jury materials, so that the court
knows that no special hesitation is necessary in those circum-
stances. In addition, the permissive language of Rule
6(e)(3)(E) provides some support for Carlson’s position: it
uses the word “may,” which “usually implies some degree of
discretion.” United States v. Rodgers, 461 U.S. 677, 706 (1983). It
also underscores that, when ordering disclosure pursuant to
6(e)(3)(E), the court has complete discretion over the manner
of disclosure (“at a time, in a manner, and subject to any other
condition it directs”). While this discretionary language pre-
sumably refers to discretion within the confines of Rule
6(e)(3)(E), it provides some support for the general proposi-
tion that courts have discretion when unsealing records.
The history of the rules and the Committee Notes also sup-
port our reading of Rule 6(e)(3)(E). The Federal Rules of Crim-
inal Procedure first appeared in 1944; the modern version of
Rule 6(e) was enacted directly by Congress in 1977. See Pub.
L. No. 95-78 § 2(a), 91 Stat. 319, 319 (1977); see generally In re
Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1087
(7th Cir. 1982) (discussing history of the 1977 amendments)
vacated in part on other grounds, 717 F.2d 1136 (7th Cir. 1983).
No. 15-2972 21
Since that time, there have been stylistic revisions, but the
substance of what is now Rule 6(e)(3)(E) is unchanged. The
Committee Notes, to which we give some weight, see Schia-
vone v. Fortune, 477 U.S. 21, 31 (1986), also indicate that the
Rule does not displace a court’s limited inherent power to ad-
dress situations not contemplated by the Rules.
Rule 6 was first enacted to “continue[] the traditional prac-
tice of secrecy on the part of members of the grand jury, ex-
cept when the court permits a disclosure.” FED. R. CRIM. P. 6,
Committee Notes 1944. It has been updated in response to
court practices, but one of those practices has been the recog-
nition of the district court’s wide discretion to address new
situations as they arise. In the specific context of Rule 6(e)’s
secrecy requirement, “as new exceptions outside of those enu-
merated in Rule 6(e) have gained traction among the courts,
the scope of the rule has followed suit.” In re Kutler, 800 F.
Supp. 2d 42, 45 (D.D.C. 2011) (finding that special circum-
stances justified release of grand-jury records). The Supreme
Court in Douglas Oil Co. of California acknowledged that the
Rules Committee updated Rule 6 in response to courts’
“recognition of the occasional need for litigants to have access
to grand jury materials.” 441 U.S. at 220. To the same effect,
the Southern District of New York observed that “exceptions
to the secrecy rule generally have developed through con-
formance of Rule 6 to the ‘developments wrought in decisions
of the federal courts,’ not vice versa.” In re Am. Historical Ass’n,
49 F. Supp. 2d 274, 285 (S.D.N.Y. 1999) (quoting In re Hastings,
735 F.2d 1261, 1268 (11th Cir. 1984)).
The government also finds solace in the history of some
unsuccessful efforts to change the rules, but this is notoriously
unreliable evidence, even for those who are sympathetic to
22 No. 15-2972
legislative history. And in any event, the Advisory Commit-
tee on Criminal Rules noted in the minutes of its meeting that
it saw no need for the amendments because the courts had
inherent power. We give this history no weight one way or
the other.
Finally, we consider the decisions of our sister circuits.
There, too, the government stands alone: no court has ac-
cepted its position. The Second, Eleventh, and D.C. Circuits
have all considered the issue and held that Rule 6(e)(3)(E) con-
tains a permissive, not exhaustive, list of reasons for release
of grand jury materials. See Craig, 131 F.3d at 101–03; In re
Biaggi, 478 F.2d 489 (2d Cir. 1973); Hastings, 735 F.2d at 1268;
Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc). And
the government acknowledged at oral argument that no dis-
trict court has bought its theory either. See, e.g., Am. Historical
Ass’n, 49 F. Supp. 2d at 285; In re Report & Recommendation of
June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1229 (D.D.C. 1974)
The Second Circuit’s reasoning in Craig is the most com-
prehensive. In Craig, a historian petitioned for the transcript
of the grand jury investigation of Harry Dexter White, an As-
sistant Secretary of the Treasury accused in 1948 of being a
communist spy. Craig, 131 F.3d at 101. The court held that a
district court has the inherent power to disclose the materials
in exceptional circumstances and noted that historic im-
portance can be a sufficient reason when there is little coun-
tervailing need for secrecy. Id. at 105. It emphasized that this
inherent power is “consonant with the role of the supervising
court and will not unravel the foundations of secrecy upon
which the grand jury is premised.” Id. at 103. Thus, given the
great weight of authority against the government’s position,
No. 15-2972 23
it “reject[ed] the government’s suggestion that [the court] un-
settle this area of good law.” Id. This accords with the Elev-
enth Circuit’s comprehensive analysis in Hastings, and the
D.C. Circuit’s briefer reasoning to the same effect in Haldeman.
See Hastings, 735 F.2d at 1268; Haldeman, 501 F.2d at 715.
We have already gone so far as to say, in dicta, that “[w]e
may not always be bound by a strict and literal interpretation
of Rule 6(e) in the situation where there is some extraordinary
and compelling need for disclosure in the interest of justice,
and little traditional need for secrecy remains[.]” In re Special
Feb., 1975 Grand Jury, 662 F.2d 1232, 1238 (7th Cir. 1981) aff'd
on other grounds sub nom., United States v. Baggot, 463 U.S. 476(1983); see also Corbitt, 879 F.2d at 239 (“it is clear that disclo-
sure of grand jury materials in situations not governed by
Rule 6(e) should be an uncommon occurrence.”); Miller Brew-
ing Co., 687 F.2d at 1088 (district court “may not always be
bound by a strict and literal interpretation of Rule 6(e)”). The
Tenth Circuit has likewise acknowledged that “some relief
may be proper under the court’s inherent authority” when
there is a compelling need to unseal grand jury records for
reasons not mentioned in Rule 6(e). In re Special Grand Jury 89-
2, 450 F.3d 1159, 1178 (10th Cir. 2006).
The government argues that these opinions are no longer
good law after Carlisle, 517 U.S. 416, and Bank of Nova Scotia,
487 U.S. 250. That point falls flat. The Second Circuit’s Craig
decision post-dates both Carlisle and Bank of Nova Scotia, and
the government cited them both to that court. And in any
event, all that Carlisle and Bank of Nova Scotia say is that a court
may not directly contradict a Rule. We have already ex-
plained why Carlson is asking for no such thing.
24 No. 15-2972
We are persuaded by the logic of Carlson’s arguments and
the approach of our sister circuits, with whom we now join.
The text and history of the Rules indicate that Rule 6(e)(3)(E)
is permissive, not exclusive, and it does not eliminate the dis-
trict court’s long-standing inherent supervisory authority to
make decisions as needed to ensure the proper functioning of
a grand jury. While this inherent supervisory authority is lim-
ited to “preserv[ing] or enhanc[ing] the traditional function-
ing” of the grand jury, Williams, 504 U.S. at 50, that includes
the power to unseal grand jury materials in circumstances not
addressed by Rule 6(e)(3)(E). See Pittsburgh Plate Glass Co., 360
U.S. at 399–400.
IV
Given that the district court did have the power to exercise
its discretion to determine whether to release the requested
grand jury materials, the only remaining question is whether
it abused that discretion. The government concedes that it did
not, and we see nothing in this record that would justify a
contrary finding, even had this point not been waived. The
district court engaged in a thoughtful and comprehensive
analysis of the pros and cons of disclosure before granting
Carlson’s request, and we are content to let its analysis stand.
The district courts retain certain inherent powers, as the
Supreme Court reaffirmed in Dietz. One such power relates to
their supervision of the disclosure of grand-jury materials. We
join with our sister circuits in holding that Rule 6(e)(3)(E) does
not displace that inherent power. It merely identifies a per-
missive list of situations where that power can be used. We
therefore AFFIRM the order of the district court.
No. 15-2972 25
SYKES, Circuit Judge, dissenting. Rule 6 of the Federal Rules
of Criminal Procedure comprehensively governs the conduct
of grand-jury proceedings, and subpart (e) of the rule requires
that all matters occurring before the grand jury must be kept
secret, subject to certain narrow exceptions. See FED. R. CRIM.
P. 6(e)(2)(B), (e)(3)(E). The petitioners here—a group of histo-
rians and journalists—asked the district court to unseal
grand-jury records from a World War II–era espionage inves-
tigation described in fascinating detail in Chief Judge Wood’s
opinion. The documents have historical significance, but none
of the rule’s exceptions to secrecy even arguably applies. To
get around this impediment, the petitioners argued that the
exceptions are permissive, not exclusive, and the district court
has inherent authority to unseal grand-jury materials for rea-
sons not covered by the rule—here, historical interest.
The United States objected, arguing that the secrecy excep-
tions are exclusive and the court has no authority to disclose
grand-jury materials in circumstances not specified in Rule
6(e)(3)(E). The district judge sided with the petitioners and
construed the rule’s exceptions as only exemplary. Relying on
the court’s “inherent authority” and applying a multifactor
test developed by the Second Circuit in In re Craig, 131 F.3d
99, 106 (2d Cir. 1997), the judge ordered the grand-jury rec-
ords unsealed.
My colleagues likewise adopt the permissive interpreta-
tion and affirm the district court’s order unsealing the 70-year-
old grand-jury materials. I respectfully dissent. In my view,
the government’s interpretation of Rule 6(e)(3)(E) is the cor-
rect one. Treating the rule’s list of authorized disclosures as
merely permissive is inconsistent with the text and structure
of the rule. I would reverse the district court’s order.
26 No. 15-2972
Rule 6(e) “codifies the traditional rule of grand jury se-
crecy,” United States v. Sells Eng’g, Inc., 463 U.S. 418, 425 (1983),
together with certain narrow exceptions, most of which deal
with information sharing between federal prosecutors and
other governmental agents for law-enforcement purposes. See
FED. R. CRIM. P. 6(e)(3). Rule 6(e) is captioned “Recording and
Disclosing the Proceedings” and begins by establishing a re-
cording requirement: “Except while the grand jury is deliber-
ating or voting, all proceedings must be recorded by a court
reporter or suitable recording device.” Id. RULE 6(e)(1). The
rule then designates the government’s lawyer as the custodian
of the record: “Unless the court orders otherwise, an attorney
for the government will retain control of the recording, the
reporter’s notes, and any transcript prepared from those
notes.” Id.The next subsection imposes a broad secrecy norm:
(2) Secrecy.
…
(B) Unless these rules provide otherwise, the fol-
lowing persons must not disclose a matter occur-
ring before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of a recording device;
(v) a person who transcribes recorded
testimony;
(vi) an attorney for the government; or
No. 15-2972 27
(vii) a person to whom disclosure is
made under Rule 6(e)(3)(A)(ii) or (iii).
FED. R. CRIM. P. 6(e)(2)(B) (emphases added). This list of per-
sons bound by the nondisclosure obligation includes all par-
ticipants in the grand jury’s proceedings except witnesses.
The very next subsection contains the exceptions to the se-
crecy rule. As I’ve noted, most of the exceptions pertain to the
authority of the government’s lawyers to disclose grand-jury
materials to other grand juries and to governmental officials
as necessary to perform law-enforcement duties in specified
circumstances. See id. RULE 6(e)(3)(A)–(D). These authorized
disclosures require no court intervention.
The exception at issue here pertains to the court’s authority
to unseal grand-jury records. It states as follows:
(E) The court may authorize disclosure—at a
time, in a manner, and subject to any other con-
ditions that it directs—of a grand-jury matter:
(i) preliminarily to or in connection with
a judicial proceeding;
(ii) at the request of a defendant who
shows that a ground may exist to dismiss the
indictment because of a matter that occurred
before the grand jury; …
28 No. 15-2972
or at the request of the government’s lawyer when the records
are sought by (iii) a foreign government; (iv) a tribal govern-
ment; or (v) a U.S. military official for the purpose of enforc-
ing their respective criminal laws. Id. RULE 6(e)(3)(E).1
Three of the five circumstances on this list require a re-
quest from the government. Id. RULE 6(e)(3)(E)(iii)–(v). A
fourth permits the court to order disclosure “at the request of
a defendant” seeking dismissal of an indictment. Id.RULE 6(e)(3)(E)(ii). The only provision that contemplates re-
lease of grand-jury materials to a member of the general pub-
lic is subsection (e)(3)(E)(i), which authorizes the court to or-
der disclosure “preliminarily to or in connection with a judi-
cial proceeding.” The Supreme Court has held that this excep-
tion applies only when the purpose of the disclosure is “to
assist in preparation or conduct of a judicial proceeding” that
is “pending or anticipated.” United States v. Baggot, 463 U.S.
476, 480 (1983).
It’s easy to see (and everyone agrees) that none of these
exceptions even arguably applies to the petitioners’ request,
which is not made by the government or a defendant and has
nothing to do with a judicial proceeding. My colleagues, how-
ever, read the list of exceptions as permissive, not exhaustive.
As they see it, the limiting language in subsection (e)(2)(B)—
“unless these rules provide otherwise”—is confined to the se-
crecy provision (where it appears) and has no effect on the
1 The rest of subpart (e) establishes rules for sealing indictments, closing
court hearings collateral to grand-jury proceedings, maintaining grand-
jury records under seal, and punishing knowing violations of Rule 6 by
contempt. See FED. R. CRIM. P. 6(e)(4)–(7).
No. 15-2972 29
operation of the exceptions. On this reading the exceptions
are nonexclusive, leaving the district court with residual in-
herent authority to disclose grand-jury materials to persons
and for purposes not identified in the rule. With respect, I can-
not agree.
In my view, the secrecy requirement and its exceptions
must be read together as an integrated whole. After all, the
provisions appear sequentially and work together. First, sub-
section (e)(2)(B) imposes a strict nondisclosure rule “unless
these rules provide otherwise.” Next, subsection (e)(3) creates
a few narrowly tailored exceptions, one of which empowers
the court to disclose grand-jury materials to specified persons
in specified circumstances. The limiting language in the se-
crecy provision necessarily means that the exceptions are a
closed set: Subsection (e)(2)(B) mandates grand-jury secrecy
“unless these rules provide otherwise”; the exceptions in sub-
section (e)(3) “provide otherwise,” but the court’s authority to
override the secrecy norm is limited to the particular circum-
stances specified in Rule 6(e)(3)(E).
As my colleagues interpret the rule, the limiting language
in the secrecy provision has no bearing at all on the excep-
tions; the phrase “unless these rules provide otherwise” is
“buried” in subsection (e)(2)(B) and cannot “secretly appl[y]”
to the exceptions, which are found in “an entirely different
subpart” of the rule. Majority op. at 19. But the two provisions
cannot be read in isolation. They appear together in subpart
(e), sequentially, and govern the same subject matter. The ex-
ceptions plainly modify the general rule of nondisclosure.
Treating the exceptions as merely exemplary puts the two
provisions at cross-purposes: If the district court has inherent
authority to disclose grand-jury materials to persons and in
30 No. 15-2972
circumstances not listed in subsection (e)(3)(E), the limiting
phrase “unless these rules provide otherwise” in the secrecy
provision is ineffectual.
Indeed, the Supreme Court has recognized that Rule 6(e)
“is, on its face, an affirmative limitation on the availability of
court-ordered disclosure of grand jury materials.” Baggot, 463
U.S. at 479. Baggot held that the district court’s authority to
disclose grand-jury materials “preliminarily to or in connec-
tion with a judicial proceeding” does not include the author-
ity to order disclosure to the Internal Revenue Service in con-
nection with the determination of a taxpayer’s civil tax liabil-
ity. Id. at 480–82. The Court explained that Rule 6(e) “reflects
a judgment that not every beneficial purpose, or even every
valid governmental purpose, is an appropriate reason for
breaching grand jury secrecy.” Id. at 480.
It goes without saying that the district court’s inherent au-
thority does not include the power to contravene or circum-
vent an “express grant of or limitation on the … court’s power
contained in a rule or statute.” Dietz v. Bouldin, 136 S. Ct. 1885,
1892 (2016); see also Carlisle v. United States, 517 U.S. 416, 426
(1996) (“Whatever the scope of [the court’s] ‘inherent power,’
… it does not include the power to develop rules that circum-
vent or conflict with the Federal Rules of Criminal Proce-
dure.”); Bank of Nova Scotia v. United States, 487 U.S. 250, 254
(1988) (holding that a district court cannot invoke its inherent
authority to circumvent the harmless-error inquiry required
by Rule 52(a) of the Federal Rules of Criminal Procedure).
Rule 6(e) is an express limitation on the court’s inherent au-
thority. It codifies the common-law rule of grand-jury secrecy
subject to certain narrowly delimited exceptions and requires
No. 15-2972 31
that secrecy be maintained unless the rules specifically au-
thorize disclosure.
To read the exceptions as permissive rather than exclusive
disregards the text of the rule, which mandates secrecy “unless
these rules provide otherwise.” The straightforward meaning
of this text is that grand-jury secrecy may not be breached ex-
cept as specifically provided in the rules. To give effect to this
limiting language, the list of authorized disclosures in subsec-
tion (e)(3)(E) must be interpreted as exclusive, not merely ex-
emplary, leaving the court with no residual authority to dis-
close grand-jury records to persons and for reasons not cov-
ered by the rule—not even reasons of historical significance,
surely a beneficial purpose, but one not addressed in the rule.
Accordingly, I cannot join the majority’s decision to en-
dorse the approach taken by the Second and Eleventh Cir-
cuits, both of which have held that the district court retains
inherent authority to disclose grand-jury materials in “special
circumstances” outside the confines of Rule 6(e). In re Craig,
131 F.3d at 104–06; In re Hastings, 735 F.2d 1261, 1268–69 (11th
Cir. 1984). My colleagues include the D.C. Circuit on this list
of permissive circuits, citing Haldeman v. Sirica, 501 F.2d 714(D.C. Cir. 1974) (en banc). I think that’s right, but it bears not-
ing that the Haldeman order simply announces the en banc
court’s agreement with the district judge’s decision; it contains
no reasoning. Id. at 715.
On the other hand, the Eighth Circuit interprets the rule as
I do. That circuit treats the secrecy exceptions in
Rule 6(e)(3)(E) as exclusive. United States v. McDougal,
559 F.3d 837, 840 (8th Cir. 2009) (“[C]ourts will not order dis-
closure absent a recognized exception to Rule 6(e) or a valid
32 No. 15-2972
challenge to the original sealing order or its implementa-
tion.”). For the reasons I’ve already explained, I come down
on the Eighth Circuit’s side of this interpretive divide.
Finally, even if the district court retains some residual in-
herent authority to disclose grand-jury records outside the
circumstances specified in Rule 6(e), I question whether this
authority encompasses the power to fashion a new exception
to the rule of grand-jury secrecy based solely on historical in-
terest. As the Supreme Court has explained, the grand jury is
independent of the court; it is not “textually assigned … to
any of the branches described in the first three Articles” but
“is a constitutional fixture in its own right.” United States v.
Williams, 504 U.S. 36, 47 (1992) (internal quotation marks omit-
ted). “[T]he whole theory of its function is that it belongs to
no branch of the institutional Government, serving as a kind
of buffer or referee between the Government and the people.”
Id. And “[a]lthough the grand jury normally operates … in the
courthouse and under judicial auspices, its institutional rela-
tionship with the Judicial Branch has traditionally been, so to
speak, at arm’s length.” Id.Williams thus reaffirmed the principle that the grand jury
is operationally separate from and functionally independent
of the court, id. at 47–50, and explained that the judge’s “direct
involvement in the functioning of the grand jury has generally
been confined to the constitutive one of calling the grand ju-
rors together and administering their oaths of office,” id. at 47.
As such, “any power federal courts may have to fashion, on
their own initiative, rules of grand jury procedure is a very
limited one, not remotely comparable to the power they main-
tain over their own proceedings.” Id. at 50.
No. 15-2972 33
It’s hard to see how this “very limited” authority includes
the sweeping power to release grand-jury records to the gen-
eral public for reasons that strike the judge as socially desira-
ble—here, historical significance. The court’s inherent author-
ity over its own proceedings extends only to actions that pro-
tect and vindicate the judicial process and the judicial institu-
tion itself. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 43–
44 (1991) (explaining that the court’s inherent authority in-
cludes the power to punish contempt, regulate admission to
the bar, discipline attorneys for misconduct, dismiss suits for
failure to prosecute, and enforce decorum in the courtroom);
United States v. Hasting, 461 U.S. 499, 505 (1983) (explaining
that the court’s inherent authority includes the power to pro-
tect the integrity of judicial processes). If, as the Supreme
Court held in Williams, the court’s inherent authority over
grand-jury procedure is far more limited, I doubt that it in-
cludes the power to promulgate new exceptions to grand-jury
secrecy completely untethered to any judicial proceeding or
for reasons wholly unrelated to the judicial process.2
2 There are certainly good policy arguments to amend Rule 6(e) to give the
district court discretionary authority to unseal historically significant
grand-jury records when the reasons for maintaining secrecy have abated.
Indeed, the Department of Justice proposed such an amendment in 2011.
See generally Letter from Hon. Eric H. Holder, Jr., Att’y Gen., to Hon. Reena
Raggi, Chair, Advisory Comm. on the Criminal Rules (Oct. 18, 2011),
http://www.uscourts.gov/rules-policies/archives /suggestions/hon-eric-h-
holder-jr-11-cr-c.
In June 2012 the Federal Advisory Committee on the Criminal Rules
rejected the proposal. See Judicial Conference Comm. on Rules of Practice
and Procedure, Minutes of Meeting June 11–12, 2012, at 44,
http://www.uscourts.gov/rules-policies/archives/meeting-minutes/ com-
mittee-rules-practice-and-procedure-june-2012. The minutes reflect that
the committee saw no need for the amendment, concluding that “in the
34 No. 15-2972
Accordingly, I would reverse the district court’s order. The
court lacked the authority to unseal the Chicago Tribune grand-
jury records based solely on their historical significance, a rea-
son not addressed in Rule 6(e)(3)(E).
rare cases where disclosure of historic materials had been sought, the dis-
trict judges acted reasonably in referring to their inherent authority.” Id.My colleagues decline to give this history any weight “one way or the
other,” majority op. at 22, and I agree.