In Re Grand Jury Subpoena, Miller , 438 F.3d 1138 ( 2007 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided June 29, 2007
No. 04-3138
IN RE: GRAND JURY SUBPOENA, JUDITH MILLER
Consolidated with
04-3139, 04-3140
Appeals from the United States District Court
for the District of Columbia
(No. 04mc00407)
(No. 04mc00460)
(No. 04mc00461)
On Renewed Motion to Unseal of Amici Curiae Dow Jones &
Co., Inc and the Associated Press
______
Theodore J. Boutrous, Jr. was on the renewed motion to
unseal, the supplemental memorandum in support, and the reply
thereto.
James P. Fleissner, Deputy Special Counsel, U.S.
Department of Justice, was on the response to the renewed
motion to unseal.
Before: SENTELLE, HENDERSON, and TATEL, Circuit
Judges.
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Opinion for the Court filed PER CURIAM.
PER CURIAM: We return once again to whether we should
release material redacted from Judge Tatel’s February 15, 2005,
concurring opinion in this matter, In re Grand Jury Subpoena,
Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), reissued 438 F.3d
1141 (D.C. Cir. 2006), as well as from two ex parte affidavits
filed by the Special Counsel. Responding to an earlier motion
filed by Dow Jones, et. al., we unsealed portions of the
concurring opinion and ex parte affidavits because previously
secret grand jury information had been revealed in the
indictment of I. Lewis Libby or had been otherwise widely
reported. In re Grand Jury Subpoena, Judith Miller, 438 F.3d
1138, 1140 (D.C. Cir. 2006).
With the Libby trial now concluded, Dow Jones has
renewed its motion, arguing that additional revelations before
and during trial justify the release of the remaining portions of
the concurring opinion and ex parte affidavits. Specifically,
Dow Jones points to (1) former Deputy Secretary of State
Richard Armitage’s broadly publicized admission that he
disclosed Valerie Plame’s identity to reporters Robert Novak
and Bob Woodward, see, e.g., CBS Evening News (CBS
television broadcast Sept. 7, 2006) (interview with Armitage);
David Johnston, Source in C.I.A. Leak Case Voices Remorse
and Chagrin, N.Y. TIMES, Sept. 8, 2006, at A26; (2) trial
testimony by Novak and Woodward confirming this fact; (3)
Armitage’s further statements that he had cooperated with the
Special Counsel’s investigation from its inception, see, e.g.,
CBS Evening News; Johnston at A26; (4) Novak’s and reporter
Matthew Cooper’s public revelations that they told the grand
jury that presidential advisor Karl Rove also revealed Plame’s
identity to them, see Matthew Cooper, What I Told the Grand
Jury, TIME, July 25, 2005, at 38; Robert Novak, My Role in the
Plame Leak Probe, CHI. SUN-TIMES, July 12, 2005, at 14; and
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(5) public statements by Rove’s attorney that the Special
Counsel had informed Rove that he would not be charged in
connection with this investigation, see, e.g., Lawyer: Rove
Won’t be Charged in CIA Leak Case, CNN.COM, June 13,
2006, http://www.cnn.com/2006/POLITICS/06/13/
rove.cia/index.html.
Instead of limiting its request to the specific portions of the
concurring opinion and ex parte affidavits that relate to these
well-publicized disclosures, Dow Jones argues that there is “an
undeniable and overwhelming public interest in full public
disclosure” of all redacted materials in their entirety. Pet’r’s
Reply in Support of Renewed Mot. to Unseal 1. Asserting that
due to Armitage’s early confession “the Special Counsel already
knew the solution to the mystery that had provoked the
investigation in the first place,” Dow Jones contends that the
public has a right to know what justified subpoenaing reporters
Judith Miller and Matthew Cooper in the first place. Id. at 2–3.
Although the Special Counsel has no objection to unsealing
those portions of the concurring opinion and ex parte affidavits
that refer to grand jury information disclosed at the Libby trial,
he opposes any further disclosure, even of information already
widely reported in the media. The Special Counsel notes that
many of the redacted pages discuss “still-secret grand jury
matters,” including evidence regarding “persons who have not
been, and likely will never be, charged with a criminal offense.”
Gov’t’s Response to Renewed Mot. to Unseal 9–10. According
to the Special Counsel, moreover, “[p]ublic revelations by
persons about their involvement in a grand jury investigation,
even the disclosure of some details, do[] not eliminate the
protections” governing grand jury material. Id. at 10.
Consistent with these views, the Special Counsel submitted a
sealed affidavit identifying the redacted material he believes we
can now make public.
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As we explained in our earlier opinion, the legal principles
governing access to grand jury materials are relatively
straightforward. See In re Grand Jury Subpoena, Judith Miller,
438 F.3d 1138, 1139 (D.C. Cir. 2006). Federal Rule of
Criminal Procedure 6(e) prohibits disclosure of “matter[s]
occurring before the grand jury,” FED. R. CRIM. P. 6(e)(2), and
thus requires that “[r]ecords, orders, and subpoenas relating to
grand-jury proceedings must be kept under seal to the extent
and as long as necessary to prevent the unauthorized disclosure
of a matter occurring before a grand jury,” FED. R. CRIM. P.
6(e)(6). Grand jury investigations are conducted in strict
secrecy to encourage witnesses to testify “fully and frankly,” to
prevent those about to be indicted from fleeing, and to ensure
that “persons who are accused but exonerated by the grand jury
will not be held up to public ridicule.” Douglas Oil Co. v.
Petrol Stops Nw., 441 U.S. 211, 219 (1979). Although public
access plays an important role in other aspects of the judicial
process, “there is no First Amendment right of access to grand
jury proceedings,” nor do First Amendment protections extend
to ancillary materials dealing with grand jury matters, such as
Judge Tatel’s concurring opinion. In re Motions of Dow Jones
& Co., 142 F.3d 496, 499, 502 (D.C. Cir. 1998) (finding no
First Amendment right of access to ancillary hearings relating
to grand jury matters). Indeed, none of the cases Dow Jones
cites in support of its First Amendment argument deals with
grand jury proceedings. See Gentile v. State Bar of Nev., 501
U.S. 1030 (1991) (state restrictions on pre-trial attorney
speech); Press-Enterprise Co. v. Superior Court, 478 U.S. 1(1986) (public access to preliminary hearings); Press-Enterprise
Co. v. Superior Court, 464 U.S. 501 (1984) (public access to
voir dire); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555(1980) (public access to criminal trials); Wash. Post v.
Robinson, 935 F.2d 282 (D.C. Cir. 1991) (public access to plea
agreements).
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Yet as we have also previously pointed out, “[g]rand jury
secrecy is not unyielding” when there is no secrecy left to
protect. In re Grand Jury Subpoena, Judith Miller, 438 F.3d
1138, 1140 (D.C. Cir. 2006). Rule 6(e)(6) requires that
“[r]ecords, orders, and subpoenas relating to grand-jury
proceedings” remain sealed only “to the extent and as long as
necessary to prevent the unauthorized disclosure” of such
matters. Moreover, as we held in In re North, 16 F.3d 1234(D.C. Cir. 1994), when once-secret grand jury material becomes
“sufficiently widely known,” it may “los[e] its character as Rule
6(e) material.” Id. at 1245.
Applying these standards, we reject Dow Jones’s request to
unseal these materials in their entirety. Even if the Armitage
revelation created a compelling public interest in them—and it
is unclear to us why, as Dow Jones asserts, the Special
Counsel’s knowledge that one individual leaked Plame’s
identity calls into question the validity of his continuing
investigation into others who may have unlawfully leaked this
same information—this is irrelevant given that there is no First
Amendment right of access to secret grand jury matters. Rule
6(e) governs what we may or may not release to the public.
Insofar as materials concern still-secret grand jury matters, they
must remain sealed.
That said, as requested by Dow Jones, we will release those
redacted portions of Judge Tatel’s concurring opinion and the
two ex parte affidavits that discuss grand jury matters revealed
either during the Libby trial or by grand jury witnesses
themselves. Although not every public disclosure waives Rule
6(e) protections, one can safely assume that the “cat is out of the
bag” when a grand jury witness—in this case
Armitage—discusses his role on the CBS Evening News. In re
North, 16 F.3d at 1245; see In re Motions of Dow Jones & Co.,
142 F.3d at 505 (noting that where grand jury witness’s attorney
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“virtually proclaimed from the rooftops that his client had been
subpoenaed,” this fact “lost its character as Rule 6(e) material”
(internal quotation marks omitted)). We think the same is true
with respect to the disclosures made by Novak, Cooper, and
Rove’s attorney. We unseal the concurring opinion and the ex
parte affidavits, however, only to the extent that they have been
previously revealed. Grand jury material not yet publicly
disclosed will remain redacted.
While we appreciate the Special Counsel’s
recommendations as to precisely which redacted material we
can release, his proposal was far too narrow. At our direction,
therefore, the Special Counsel has now prepared and filed with
this court a revised affidavit identifying those portions of his
sealed ex parte affidavits discussing grand jury matters that
have become widely known through whatever source—whether
by revelations at the Libby trial or from grand jury witnesses
themselves—and can therefore be released.
It is therefore ORDERED and ADJUDGED that, pursuant
to Circuit Rule 47.1(c), Dow Jones’s motion is granted in part
and denied in part, and that the redacted opinion and ex parte
affidavits shall be placed in the public docket. The formerly
redacted portions of Judge Tatel’s concurring opinion appear in
italics on pages 32–35 and 38–39.
So ordered.