Marion E. Pitch v. United States

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15016
________________________
D.C. Docket No. 5:14-mc-00002-MTT
MARION E. PITCH,
The Personal Representative of the Estate of Anthony S. Pitch,
Plaintiff – Appellee,
LAURA WEXLER,
Intervenor,
versus
UNITED STATES OF AMERICA,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 27, 2020)
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Before ED CARNES, Chief Judge, WILSON, WILLIAM PRYOR, MARTIN,
JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT,
TJOFLAT, and MARCUS, Circuit Judges.*
TJOFLAT, Circuit Judge:
The grand jury, as an institution, has long been understood as a
“constitutional fixture in its own right,” operating independently of any branch of
the federal government. United States v. Williams, 504 U.S. 36, 47, 112 S. Ct.
1735, 1742 (1992) (internal quotation marks omitted). That independence allows
the grand jury to serve as a buffer between the government and the people with
respect to the enforcement of the criminal law. But the ability of the grand jury to
serve this purpose depends upon maintaining the secrecy of its proceedings. The
long-established policy of upholding the secrecy of the grand jury helps to protect
the innocent accused from facing unfounded charges, encourages full and frank
testimony on the part of witnesses, and prevents interference with the grand jury’s
deliberations. See Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219, 99 S.
Ct. 1667, 1673 (1979).
*
Judges Gerald Bard Tjoflat and Stanley Marcus were members of the en banc Court that
heard oral argument in this case. Judges Tjoflat and Marcus took senior status on November 19,
2019, and December 6, 2019, respectively, and both have elected to participate in this decision
pursuant to 28 U.S.C. § 46(c)(2). Judges Robert J. Luck and Barbara Lagoa joined the Court on
November 19, 2019, and December 6, 2019, respectively, and did not participate in these en banc
proceedings.
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Rule 6 of the Federal Rules of Criminal Procedure, which governs matters
related to the grand jury, continues this traditional practice of secrecy. In
particular, Rule 6(e) codifies the traditional rule of grand jury secrecy and provides
a comprehensive framework for determining whether and under what conditions
the records of grand jury proceedings may be released. The issue we must decide
is whether a district court may order the release of grand jury materials in
circumstances not explicitly covered by Rule 6(e).
In this case, Anthony S. Pitch, an author and historian, petitioned the U.S.
District Court for the Middle District of Georgia for the grand jury transcripts
related to the Moore’s Ford Lynching—a horrific event involving the murders of
two African American couples for which no one has ever been charged—to be
used in his book about the lynching. His request admittedly did not fall within any
of Rule 6(e)’s stated exceptions to the general rule of grand jury secrecy. The
District Court nonetheless granted his petition, relying on our decision in In re
Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th
Cir. 1984). In Hastings, we held that a district court may, pursuant to its inherent,
supervisory power over the grand jury, authorize the disclosure of grand jury
records outside of Rule 6(e)’s enumerated exceptions in certain “exceptional
circumstances.” Id. at 1268–69. Here, the District Court found that the historical
significance of the grand jury’s investigation, and the critical role the records of
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that investigation would play in enhancing the historical record on this tragic event,
amounted to “exceptional circumstances” that justified the Court’s use of its
inherent power to order disclosure. In re Pitch, 275 F. Supp. 3d 1373, 1383 (M.D.
Ga. 2017), aff’d sub nom. Pitch v. United States, 915 F.3d 704 (11th Cir. 2019),
reh’g en banc granted, opinion vacated, 925 F.3d 1224 (11th Cir. 2019).
A panel of this Court, “bound by our decision in Hastings,” affirmed the
District Court’s exercise of its inherent, supervisory power to authorize disclosure
of grand jury records outside the confines of Rule 6(e) for matters of historical
significance. 915 F.3d at 707; see also id. at 713 (Jordan, J., concurring) (“Given
our decision in Hastings, I do not see how we can say that the district court abused
its discretion in relying on its inherent authority.”). We reheard the case en banc to
reconsider our holding in Hastings—that district courts have inherent power to go
beyond the exceptions listed in Rule 6(e)—and to determine whether, if such
inherent power does exist, district courts may exercise that power to recognize an
exception to grand jury secrecy for matters of historical significance. We now
hold that Rule 6(e) is exhaustive, and that district courts do not possess inherent,
supervisory power to authorize the disclosure of grand jury records outside of Rule
6(e)(3)’s enumerated exceptions. We therefore overrule our holding in Hastings to
the contrary.
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I.
To appreciate why Pitch is seeking the grand jury records in a decades-old
case, we begin by describing the incident that prompted the grand jury’s
investigation and the continued interest in that investigation. In July 1946, a crowd
of people in Walton and Oconee Counties, Georgia gathered as two African
American couples were dragged from a car and brutally murdered in what some
consider to be the last mass lynching in American history. The event, known as
the Moore’s Ford Lynching, sparked national outrage and eventually led both the
Georgia Bureau of Investigation (“GBI”) and the Federal Bureau of Investigation
(“FBI”) to investigate the murders. In late 1946, after approximately four months
of investigation, a federal grand jury was convened in the U.S. District Court for
the Middle District of Georgia in Athens. The grand jury heard sixteen days of
testimony from countless witnesses, but nonetheless failed to charge anyone with
the murders. The case remains unsolved.
The circumstances surrounding the Moore’s Ford Lynching, and especially
the grand jury’s failure to indict, continue to draw attention from activists and
scholars alike. The Moore’s Ford Memorial Committee—a group of politicians,
civil rights activists, and victims’ relatives—gather each year to lead a rally and a
reenactment in honor of the victims. The GBI and FBI have reopened their
investigations into the lynching several times over the past seven decades, but to
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no avail. More recently, in 2007, over three thousand pages of the FBI
investigation file were released to the public under a Freedom of Information Act
request. The records of the proceedings before the 1946 grand jury are one of the
few records related to the Moore’s Ford Lynching that remain sealed.
Enter Anthony S. Pitch. Pitch was a historian who authored several books
about major historic events, such as President Abraham Lincoln’s assassination
and the British invasion of Washington in 1814. His latest work, published in
March 2016, focused on the Moore’s Ford Lynching. Seeking additional source
material for his book, Pitch petitioned the District Court in 2014 to unseal the
federal grand jury records related to the Moore’s Ford Lynching. The District
Court initially denied the petition because there was no evidence that the records
existed. Pitch renewed his petition in 2017, after learning that the transcripts of the
grand jury testimony may be located at the National Archives in Washington, D.C.
The District Court ordered the Government to produce the records for in camera
inspection, and the Government filed the transcripts under seal.
This time, the District Court granted Pitch’s request and ordered the
transcripts unsealed. Although the District Court acknowledged that “Pitch’s
request does not fit within any of Rule 6(e)’s exceptions,” it invoked its inherent
power to release the transcripts under our reasoning in Hastings. 275 F. Supp. 3d
at 1381–83.
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In Hastings, the Judicial Investigating Committee of the Eleventh Circuit
sought access to the records of the grand jury that had indicted District Judge
Alcee Hastings on bribery charges—charges for which Hastings was later tried and
acquitted—to determine whether Hastings should be disciplined for violations of
the Code of Judicial Conduct. 735 F.2d at 1263. We noted 1 that the Committee’s
request did not quite fall within the exception in then-Rule 6(e)(3)(C)(i)—now
Rule 6(e)(3)(E)(i)—for disclosures, “preliminarily to or in connection with a
judicial proceeding,” since the investigation of Hastings was not a judicial
proceeding in the “strict legal sense.” Id. at 1271–72.2 Nonetheless, we held that
the District Court properly exercised its inherent, supervisory power over the grand
jury to authorize release of the materials outside the strict bounds of Rule 6(e). Id.
at 1272.3 In doing so, we explained that Rule 6(e)’s exceptions “were not intended
to ossify the law, but rather are subject to development by the courts in
conformance with the rule’s general rule of secrecy.” Id. at 1269 (citing Fallen v.
1
The panel that decided Hastings was composed of three non-Eleventh Circuit judges
selected by the Chief Justice of the U.S. Supreme Court pursuant to 28 U.S.C. § 291. All
Eleventh Circuit judges had recused themselves because of the conflict presented by the
underlying investigation of a district judge within the Eleventh Circuit.
2
We explained, however, that the proceedings “closely mirror[ed] Justice Holmes’s
definition” of a “judicial inquiry”: “[a] judicial inquiry investigates, declares and enforces
liabilities as they stand on present or past facts and under laws supposed already to exist. That is
its purpose and end.” Id. at 1271 (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29
S. Ct. 67, 69 (1908)).
3
We did so largely because we believed the committee’s proceeding was so “closely
akin” to the judicial-proceeding exception. Id.
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United States, 378 U.S. 139, 142, 84 S. Ct. 1689, 1691 (1964)). District courts
therefore retained “inherent power beyond the literal wording of Rule 6(e)” to
authorize disclosure of grand jury materials not explicitly covered by the rule. Id.
at 1268. We cautioned, however, that district courts may only act outside Rule
6(e) in “exceptional circumstances consonant with the rule’s policy and spirit.” Id.
at 1269.
In this case, a divided panel of this Court affirmed that the District Court
appropriately exercised its substantial discretion under Hastings when it decided to
release the records of the Moore’s Ford grand jury pursuant to its inherent,
supervisory power. Pitch, 915 F.3d at 713. Specifically, the panel explained that
“[u]nder the proper circumstances, grand jury records on a matter of exceptional
historical significance may trigger a district court’s inherent authority to disclose
them.” Id. at 710. Put differently, the “exceptional historical significance” of the
grand jury records may constitute the “exceptional circumstances” described in
Hastings that would justify the district court in exercising its inherent power to
disclose the records, even though no Rule 6(e) exception applies. See Hastings,
735 F.2d at 1269. In determining whether the facts that Pitch presented amounted
to “exceptional circumstances,” the panel (like the District Court) balanced the
public interest in the continued secrecy of the grand jury records against the need
for disclosure, id. at 709–10 (citing Hastings, 735 F.2d at 1272, 1275; Douglas Oil,
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441 U.S. at 223, 99 S. Ct. at 1675), relying primarily on the multi-factor test
outlined by the Second Circuit in In re Petition of Craig, 131 F.3d 99, 106 (2d Cir.
1997). 4 It ultimately found that, because of the substantial historical interest in the
records, which has persisted over time, and the relatively low risk that any
witnesses, suspects, or their immediate family members would be intimidated,
persecuted, or arrested, the District Court did not abuse its discretion in unsealing
the grand jury materials. Pitch, 915 F.3d at 711–13.
We voted to rehear the case en banc to determine whether we should
overrule our holding in Hastings—that district courts have inherent power to go
beyond the exceptions listed in Rule 6(e) to order the disclosure of grand jury
records—and, if not, whether a district court may exercise its inherent power to
recognize a historical-significance exception to the general rule of grand jury
4
The Second Circuit in In re Petition of Craig developed the following “non-exhaustive
list of factors” for a trial court to weigh when applying the Douglas Oil balancing test to the
disclosure of historically significant grand jury records:
(i) the identity of the party seeking disclosure; (ii) whether the defendant to the
grand jury proceeding or the government opposes the disclosure; (iii) why
disclosure is being sought in the particular case; (iv) what specific information is
being sought for disclosure; (v) how long ago the grand jury proceedings took
place; (vi) the current status of the principals of the grand jury proceedings and that
of their families; (vii) the extent to which the desired material—either permissibly
or impermissibly—has been previously made public; (viii) whether witnesses to the
grand jury proceedings who might be affected by disclosure are still alive; and (ix)
the additional need for maintaining secrecy in the particular case in question.
131 F.3d at 106.
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secrecy.5
II.
The questions before us implicate the long-established policy that grand jury
proceedings in federal courts should be kept secret. See United States v. Sells
Eng’g, Inc., 463 U.S. 418, 424, 103 S. Ct. 3133, 3138 (1983); United States v.
Procter & Gamble Co., 356 U.S. 677, 681, 78 S. Ct. 983, 986 (1958). The
Supreme Court has long “recognized that the proper functioning of our grand jury
system depends upon the secrecy of grand jury proceedings.” Douglas Oil, 441
U.S. at 218, 99 S. Ct. at 1672 (citing Procter & Gamble, 356 U.S. at 681, 78 S. Ct.
at 986). That secrecy serves several vital purposes, including:
(1) To prevent the escape of those whose indictment may be
contemplated; (2) to insure the utmost freedom to the grand jury in its
deliberations, and to prevent persons subject to indictment or their
friends from importuning the grand jurors; (3) to prevent subornation
of perjury or tampering with the witnesses who may testify before [the]
grand jury and later appear at the trial of those indicted by it; (4) to
5
Pitch passed away while this case was pending en banc. We granted the unopposed
motion to substitute Marion E. Pitch, the personal representative of Anthony Pitch’s estate, as the
Petitioner-Appellee in this appeal pursuant to Federal Rule of Appellate Procedure 43(a). We
also asked the parties to file supplemental letter briefs to address whether the appeal is moot in
light of Pitch’s death. Pitch’s Estate and his family have expressed their intent to carry out
Pitch’s research; they intend to review the grand jury transcripts and to use those transcripts to
complete the book that Pitch had been working on until his untimely death. To that end, they
sought the assistance of Laura Wexler, another historian who, like Pitch, has authored a book on
the Moore’s Ford Lynching. Ms. Wexler separately filed a motion to intervene in this appeal,
claiming that she had a similar interest in securing the release of the grand jury records so that
she could complete her own scholarly work on the Moore’s Ford Lynching. We granted the
motion to intervene. In light of the substitution of Pitch’s Estate and the addition of Ms. Wexler
as a party—and the apparent agreement between the two parties to complete the project for
which the grand jury records were originally sought—we find that this appeal is not moot.
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encourage free and untrammeled disclosures by persons who have
information with respect to the commission of crimes; (5) to protect
innocent accused who is exonerated from disclosure of the fact that he
has been under investigation, and from the expense of standing trial
where there was no probability of guilt.
Id. at 219 n.10, 99 S. Ct. at 1673 n.10 (alteration in original) (quoting Procter &
Gamble, 356 U.S. at 681–82 n.6, 78 S. Ct. at 986 n.6). Accordingly, both
Congress and the Supreme Court have consistently stood ready to defend the
secrecy of the grand jury against any unwarranted intrusions. Sells Eng’g, 463
U.S. at 425, 103 S. Ct. at 3138.
Rule 6(e) codified the traditional rule of grand jury secrecy. Id. Since its
promulgation in 1946, Rule 6(e) has governed the disclosure of grand jury records.
Illinois v. Abbott & Assocs., 460 U.S. 557, 566, 103 S. Ct. 1356, 1361 (1983).
Even so, Pitch argues that Rule 6(e) is not exhaustive, and thus does not eliminate
district courts’ inherent, supervisory power over the grand jury to authorize
disclosure in circumstances not covered by the rule. Relying on Carlson v. United
States, 837 F.3d 753, 763 (7th Cir. 2016), he argues that Rule 6(e) is merely
permissive, and as such does not “abrogate the power of the courts” to exercise
their historic “inherent power” in the absence of a contradictory Rule 6(e)
provision. Accordingly, he says, since Rule 6(e) does not cover the type of
disclosure requested here, “[a] judge may regulate [the] practice in any manner
consistent with federal law, these rules, and the local rules of the district [court].”
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Fed. R. Crim. P. 57(b); see also Carlson, 837 F.3d at 762 (explaining that Rule
57(b) informs a district court what it may do when the Federal Rules of Criminal
Procedure are otherwise silent).
Since we first interpreted Rule 6(e) in Hastings, several other circuits have
considered whether district courts may authorize the disclosure of grand jury
records outside the circumstances listed in that rule. Some agree with Pitch and so
have held, like we did in Hastings, that district courts may invoke their inherent,
supervisory authority over the grand jury to permit the disclosure of grand jury
records outside the text of Rule 6(e). See Carlson, 837 F.3d at 763–66; In re
Petition of Craig, 131 F.3d at 103; see also McKeever v. Barr, 920 F.3d 842, 853–
55 (D.C. Cir. 2019) (Srinivasan, J., dissenting), cert. denied, 140 S. Ct. 597 (2020);
cf. In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005) (holding that a
district court may exercise its inherent judicial power to impose an obligation of
secrecy on a grand jury witness, even though witnesses are not covered by Rule
6(e)(2)(B)’s secrecy requirement). Other circuits have refused to authorize the
disclosure of grand jury records outside of Rule 6(e)’s stated exceptions to the
general rule of secrecy, finding those exceptions to be exhaustive. See McKeever,
920 F.3d at 845; United States v. McDougal, 559 F.3d 837, 840–41 (8th Cir. 2009)
(“‘Because the grand jury is an institution separate from the courts, over whose
functioning the courts do not preside,’ . . . courts will not order disclosure absent a
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recognized exception to Rule 6(e) or a valid challenge to the original sealing order
or its implementation.” (alteration omitted) (quoting Williams, 504 U.S. at 47, 112
S. Ct. at 1742)); In re Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir. 1991)
(“[W]ithout an unambiguous statement to the contrary from Congress, we cannot,
and must not, breach grand jury secrecy for any purpose other than those embodied
by the Rule.”); see also Carlson, 837 F.3d at 767–68 (Sykes, J., dissenting).6
We now depart from our analysis in Hastings, and join the Sixth, Eighth,
and District of Columbia Circuits in their interpretation of Rule 6(e). We disagree
with Pitch that Rule 6(e) is merely a permissive rule—“a rule that permits a court
to do something and does not include any limiting language.” Carlson, 837 F.3d at
763. To the contrary, Rule 6(e) provides an exhaustive list of detailed
circumstances in which a district court may authorize disclosure. It lays out a
general rule of secrecy followed by a set of carefully considered exceptions that
6
Three other circuits have also suggested, in dicta, that Rule 6(e)’s exceptions are
exhaustive. See United States v. Educ. Dev. Network Corp., 884 F.2d 737, 740 (3d Cir. 1989)
(“Rule 6(e)(2) provides in general that matters occurring before the grand jury may not be
disclosed. Disclosure of such matters may only be made under the narrow exceptions listed in
Rule 6(e)(3).” (emphasis added)); In re J. Ray McDermott & Co., Inc., 622 F.2d 166, 172 (5th
Cir. 1980) (“Rule 6(e) . . . permit[s] disclosure of grand jury materials in certain specific
circumstances. A district court to whom application for disclosure is made does exercise
discretion in granting disclosure but may not thereby enlarge the exceptions to grand jury
secrecy.” (emphases added)); In re Grand Jury Subpoenas, Apr., 1978, at Baltimore, 581 F.2d
1103, 1108–09 (4th Cir. 1978) (“Rule 6(e), as recently amended, provides generally that
materials secured by the grand jury in the course of its investigation shall not be disclosed except
as authorized in subsection (2).” (emphasis added) (footnote omitted)).
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limit the district court’s authority to disclose the records of a grand jury’s
proceedings. The rule thus leaves no room for district courts to fashion new
exceptions beyond those listed in Rule 6(e). We therefore hold that Rule 6(e) by
its plain terms limits disclosures of grand jury materials to the circumstances
enumerated therein.
A.
Rule 6(e) covers both the recording of the grand jury’s proceedings and the
disclosure of those records. With respect to disclosure, Rule 6(e)(2), entitled
“Secrecy,” announces a general rule of secrecy. It mandates that various persons
who participate before the grand jury, other than witnesses, “must not disclose a
matter occurring before the grand jury,” “[u]nless these rules provide otherwise.”
Fed. R. Crim. P. 6(e)(2)(B).7
Rule 6(e)(3) then lays out a set of five detailed “[e]xceptions” to this general
rule of nondisclosure. Fed. R. Crim. P. 6(e)(3). It provides that a government
attorney may, 8 without prior court approval, disclose grand jury records to other
7
Rule 6(e)(2)(B) lists seven individuals who are prohibited from disclosing a matter
occurring before the grand jury: a grand juror, an interpreter, a court reporter, an operator of a
recording device, a person who transcribes recorded testimony, an attorney for the government,
and a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).
8
Under Rule 6(e)(1), the grand jury records remain in the custody and control of a
government attorney, unless the district court orders otherwise. Thus, as a practical matter, it is
the government—and not the district court—that actually discloses the grand jury records.
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government attorneys or officials for use in performing the attorneys’ duties, or to
other grand juries for the purpose of conducting criminal or intelligence
investigations. See Fed. R. Crim. P. 6(e)(3)(A)–(D). It then specifies that a “court
may authorize disclosure—at a time, in a manner, and subject to any other
conditions that it directs—of a grand-jury matter” (1) “preliminarily to or in
connection with a judicial proceeding,” Fed. R. Crim. P. 6(e)(3)(E)(i), (2) “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,” Fed. R. Crim.
P. 6(e)(3)(E)(ii), or (3) at the request of the government for use in a foreign, state,
tribal, or military criminal investigation, Fed. R. Crim. P. 6(e)(3)(E)(iii)–(v).
The text and structure of Rule 6(e) thus indicate that the rule is not merely
permissive. Rather, it imposes a general rule of nondisclosure, then instructs that
deviations from that rule are not permitted “[u]nless these rules provide
otherwise,” and then provides a detailed list of exceptions that specifies precisely
when the rules “provide otherwise.”
“Where Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the absence of evidence
of a contrary legislative intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–
17, 100 S. Ct. 1905, 1910 (1980). We find nothing in the text of Rule 6(e) to
indicate an intent to permit a district court to go beyond the enumerated
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exceptions. The Rule does not, for example, introduce the exceptions with a term
like “including,” which might indicate that the exceptions are merely illustrative.
See McKeever, 920 F.3d at 845. Nor does it contain a residual exception that
might accommodate the judicial fashioning of new exceptions in addition to the
ones listed. See id.
In fact, the text of Rule 6(e) suggests just the opposite intent. The drafters of
Rule 6(e)(2) permitted deviations from the general rule of secrecy only when the
“rules provide otherwise”—not when the court provides otherwise. That choice of
language is significant because in another subsection of Rule 6(e), the drafters
directly and unambiguously gave the district court the power to act outside the text
of the rule. Rule 6(e)(1) provides: “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.” Fed. R. Crim. P. 6(e)(1) (emphasis
added). This subsection demonstrates that the drafters of Rule 6 knew how to craft
a provision granting the district court the authority to act outside the text of the
rule, but intentionally chose not to do so in Rule 6(e)(2). Their decision to use the
phrase “[u]nless these rules provide otherwise,” instead of the phrase “[u]nless the
court orders otherwise” from the immediately preceding subsection, indicates that
the drafters intended the general rule of secrecy to be breached only in accordance
with the Federal Rules of Criminal Procedure, and not that a district court had the
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power to do so outside the confines of the rule. See Carlson, 837 F.3d at 770
(Sykes, J., dissenting) (“The straightforward meaning of th[e] text [of the rule,
which mandates secrecy ‘unless these rules provide otherwise’] is that grand-jury
secrecy may not be breached except as specifically provided in the rules.”). This
intentional choice of language highlights the drafters’ understanding that disclosure
should be limited to the text of Rule 6(e).
Our interpretation of Rule 6(e) as exhaustive is consistent with the Supreme
Court’s warning that we must be reluctant to conclude that a breach of grand jury
secrecy has been authorized in the absence of a clear indication in a Rule or statute.
Sells Eng’g, 463 U.S. at 425, 103 S. Ct. at 3138; see also Abbott & Assocs., 460
U.S. at 572–73, 103 S. Ct. at 1364 (explaining that while Congress “has the power
to modify the rule of secrecy . . . the rule is so important, and so deeply-rooted in
our traditions, that we will not infer that Congress has exercised such a power
without affirmatively expressing its intent to do so”). Indeed, while the Supreme
Court has not yet addressed the question, the Court has on several occasions
suggested that Rule 6(e) is exclusive. See McKeever, 920 F.3d at 846 (collecting
cases). As early as 1959, the Supreme Court recognized that “any disclosure of
grand jury minutes is covered by [Rule] 6(e).” Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395, 398, 79 S. Ct. 1237, 1240 (1959). And when
interpreting the exception in Rule 6(e) for grand jury matters “preliminarily to or in
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connection with a judicial proceeding,” the Supreme Court explained that the
exception “is, on its face, an affirmative limitation on the availability of court-
ordered disclosure of grand jury materials.” United States v. Baggot, 463 U.S. 476,
479, 103 S. Ct. 3164, 3167 (1983). More recently, the Supreme Court described
Rule 6(e) as “placing strict controls on disclosure of ‘matters occurring before the
grand jury.’” Williams, 504 U.S. at 46 n.6, 112 S. Ct. at 1741–42 n.6 (citing Sells
Eng’g, 463 U.S. 418, 103 S. Ct. 3133).
The contrary interpretation proposed by Pitch—that Rule 6(e)(3)(E)’s
exceptions are only permissive—would render the detailed list of exceptions to
Rule 6(e)(2) merely precatory. It is hard to imagine why Congress and the Rules
Committee would bother to craft and repeatedly amend these detailed exceptions if
they were meant only to be an illustration of when a district court may authorize
the disclosure of grand jury records. We therefore disagree with the Seventh
Circuit that it is “entirely reasonable” to infer that Congress and the Supreme Court
intended the list as a guideline of frequently invoked reasons for disclosing grand
jury materials, simply to indicate to the district court that it should not hesitate to
authorize disclosure in those cases. See Carlson, 837 F.3d at 764–65.
In fact, the Supreme Court has recognized that the exceptions listed in Rule
6(e)(3) “reflect[] a judgment that not every beneficial purpose, or even every valid
governmental purpose, is an appropriate reason for breaching grand jury secrecy.”
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Baggot, 463 U.S. at 480, 103 S. Ct. 3167 (interpreting what is now Rule
6(e)(3)(E)(i)). Pitch’s interpretation of Rule 6(e) would thus permit district courts
to circumvent the policy judgments made by Congress and the Supreme Court that
grand jury secrecy should be relaxed for certain purposes and not others. It would
allow a single district court to disrupt the balance struck by Congress and the
Supreme Court to create such new exceptions as it thinks make good public
policy,9 contrary to the express limitation on the district court’s power contained in
Rule 6(e). See Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016); McKeever, 920
F.3d at 845; see also Carlisle v. United States, 517 U.S. 416, 426, 116 S. Ct. 1460,
1466 (1996) (“Whatever the scope of this ‘inherent power,’ however, it does not
include the power to develop rules that circumvent or conflict with the Federal
Rules of Criminal Procedure.”).
9
The problem is amplified here, as the creation of a historical-significance exception
involves two layers of policy judgments. The first is the decision to recognize an exception for
matters of historical significance generally. The second involves deciding what it means for
something to be so “historically significant” that the interest in disclosure outweighs any interest
that the grand jurors, witnesses, and future generations, among others, have in maintaining the
secrecy of the proceedings. Under Pitch’s interpretation of Rule 6(e), then, a single district judge
would have the authority to substitute his or her own judgments on these policy questions on a
case-by-case basis, with the inevitable result that the exceptions to the general rule of grand jury
secrecy would vary from one court to the next across the nation. Without consistent guidance as
to when grand jury testimony may be disclosed, future witnesses may be deterred from testifying
before the grand jury, and potential grand jurors may be deterred from serving on grand juries,
fearing that a judge may someday decide that the subject-matter of the grand jury’s investigation
was so important that it should no longer be kept secret. See Douglas Oil, 441 U.S. at 222, 99 S.
Ct. at 1674. The uncertainty would have a chilling effect on future grand jury witnesses and
would render the grand jury as an institution inoperable. See, e.g., id. at 218, 99 S. Ct. at 1672
(recognizing the importance of secrecy to the proper functioning of the grand jury system).
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For these reasons, we find that the text of Rule 6(e) is best understood as
limiting the disclosure of grand jury materials to the circumstances carefully
defined in Rule 6(e)(3)(E). We therefore agree with the Government that Rule
6(e)(3)(E)’s list of exceptions to the general rule of grand jury secrecy is exclusive,
and that district courts may not rely on their inherent, supervisory power to
authorize disclosure of grand jury materials outside the bounds of that rule. To the
extent that we held in Hastings that such inherent power does exist, that holding is
overruled.
B.
Pitch’s textual arguments to the contrary are not persuasive. Pitch first
argues that district courts are not bound by the obligation of secrecy in Rule
6(e)(2), because the district court is not on the list of people in Rule 6(e)(2)(B) to
whom the obligation of secrecy applies. Rule 6(e)(2)(A) provides that “[n]o
obligation of secrecy may be imposed on any person except in accordance with
Rule 6(e)(2)(B).” Fed. R. Crim. P. 6(e)(2)(A). Rule 6(e)(2)(B) then lists the seven
people who are prohibited from disclosing any matter occurring before the grand
jury: a grand juror, an interpreter, a court reporter, an operator of a recording
device, a person who transcribes recorded testimony, an attorney for the
government, and other government personnel to whom disclosure is made under
the rules or by statute. Fed. R. Crim. P. 6(e)(2)(B). The district court is absent
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from this list. Accordingly, the argument goes, the district court cannot be bound
by the obligation of secrecy in Rule 6(e)(2).
Pitch’s argument is difficult to square with how the grand jury operates in
practice. The grand jury is by design an institution independent from the Judicial
Branch. Williams, 504 U.S. at 47–48, 112 S. Ct. at 1742–43 (citing United States
v. Calandra, 414 U.S. 338, 343, 94 S. Ct. 613, 617 (1974)). Accordingly, the
district court neither presides over the grand jury nor monitors its proceedings. Id.
at 48, 112 S. Ct. at 1742 (citing Calandra, 414 U.S. at 343, 94 S. Ct. at 617). In
fact, Rule 6 does not permit the district judge to be present in the grand jury room
at all. See Fed. R. Crim. P. 6(d). The extent of the district court’s “involvement in
the functioning of the grand jury has generally been confined to the constitutive
one of calling the grand jurors together and administering their oaths of office,” or
to enforcing grand jury subpoenas. Williams, 504 U.S. at 47–48, 112 S. Ct. at
1742–43 (citing Calandra, 414 U.S. at 343, 94 S. Ct. at 617).
It is not surprising, then, that district courts are not included in Rule
6(e)(2)(B). The individuals listed in Rule 6(e)(2)(B) are those who are either
present in the grand jury room during its proceedings or who are otherwise made
privy to the grand jury’s proceedings because Rule 6(e)(3) explicitly so provides.
Unlike the individuals listed, the district court is not a participant in the grand jury
proceedings, and thus is not ordinarily privy to those proceedings unless and until a
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party raises an issue having to do with the grand jury, see, e.g., Fed. R. Crim. P.
6(e)(3)(E)(ii), or the district court is called upon by the grand jury to enforce a
subpoena. In fact, Rule 6(e)(1) contemplates that, in the ordinary case, a
government attorney maintains custody of the grand jury records—not the court.10
Therefore, the district court’s absence from Rule 6(e)(2)(B) does not mean that the
district court has no secrecy obligations with respect to grand jury proceedings.
Second, Pitch points to the text of Rule 6(e)(3)(E), which prefaces its list of
exceptions with the following phrase: “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 . . . .” Pitch argues that the use of the word “may” here implies “some
degree of discretion,” which supports a permissive (rather than exclusive) reading
of Rule 6(e)(3)(E)’s enumerated exceptions. See Carlson, 837 F.3d at 765
(quoting United States v. Rodgers, 461 U.S. 677, 706, 103 S. Ct. 2132, 2149
(1983)).
To be sure, a district court must exercise a degree of discretion in deciding
whether to release grand jury materials under Rule 6(e). But it does not follow that
Rule 6(e) is merely permissive. “May” in this context means only that, even if a
10
See supra note 8. When the district court authorizes disclosure under Rule 6(e)(3)(E),
then, it must do so by ordering a government attorney to disclose the grand jury records that are
in his or her possession. See McKeever, 920 F.3d at 848. In effect, the court releases the
government attorney from his or her obligation of secrecy under Rule 6(e)(2)(B).
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request for grand jury materials falls within one of Rule 6(e)(3)(E)’s enumerated
exceptions, a district court may nonetheless exercise its discretion to deny the
request. A petitioner is not entitled to the release of grand jury materials simply
because his or her request falls within a listed exception to grand jury secrecy. A
district court must still exercise its “substantial discretion” to weigh “the extent of
the need for continuing grand jury secrecy, the need for disclosure, and the extent
to which the request was limited to that material directly pertinent to the need for
disclosure.” Douglas Oil, 441 U.S. at 223–24, 99 S. Ct. at 1675.
The Supreme Court recognized as much in Pittsburgh Plate Glass when it
stated that “Rule 6(e) is but declaratory” of the principle that the disclosure of
grand jury materials is committed to the discretion of the trial court. 360 U.S at
399, 79 S. Ct. at 1240. Pitch reads Pittsburgh Plate Glass as supporting the
proposition that district courts have broad discretion to release grand jury materials
outside of Rule 6(e)’s enumerated exceptions. But in fact, Pittsburgh Plate Glass
involved a request for disclosure under one of Rule 6(e)’s enumerated exceptions.
See id. at 396 n.1, 79 S. Ct. at 1239 n.1; see also id. at 398, 79 S. Ct. at 1240
(“Petitioners concede, as they must, that any disclosure of grand jury minutes is
covered by [Rule] 6(e).”). Thus, “[t]he only ‘discretion’ at issue involved the
district court’s determination whether the party seeking material covered by the
exception had made a sufficiently strong showing of need to warrant disclosure.”
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McKeever, 920 F.3d at 846 (citing Pittsburgh Plate Glass, 360 U.S. at 398–99, 79
S. Ct. at 1240); accord Douglas Oil, 441 U.S. at 217–24, 99 S. Ct. at 1672–75
(describing the same discretion). While a district court’s determination whether to
order disclosure under Rule 6(e) necessarily involves some degree of discretion,
that discretion is limited by the text of the rule. Pittsburgh Plate Glass does not
suggest otherwise.
III.
Pitch also makes two arguments based on the Advisory Committee’s notes
to Rule 6. First, Pitch points to language in the Advisory Committee note to the
original Rule 6(e), which states that the rule “continues the traditional practice of
secrecy on the part of members of the grand jury, except when the court permits a
disclosure.” Fed. R. Crim. P. 6 original advisory committee’s note (emphasis
added) (citing Schmidt v. United States, 115 F.2d 394 (6th Cir. 1940); Atwell v.
United States, 162 F. 97 (4th Cir. 1908); United States v. Am. Med. Ass’n, 26 F.
Supp. 429 (D.D.C. 1939)). Pitch argues that, as we said in Hastings, this language
demonstrates with “certain[ty] that a court’s power to order disclosure of grand
jury records is not strictly confined to instances spelled out in the rule.” See
Hastings, 735 F.2d at 1268.
We disagree. Like the current version of Rule 6(e), the original version of
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the rule specified precisely when a court may “permit[] a disclosure.”11 It first
provided that grand jury matters may be disclosed to government attorneys for use
in the performance of their duties without any involvement by the court. Fed. R.
Crim. P. 6(e), 327 U.S. 827, 837 (1945). It then provided two specific
circumstances in which disclosure was permitted only when directed by the court:
first, when disclosure was sought “preliminarily to or in connection with a judicial
proceeding,” and second, “at the request of the defendant upon a showing that
grounds may exist for a motion to dismiss the indictment because of matters
occurring before the grand jury.” Id. at 838. There is nothing in the text of the rule
to indicate that the phrase “except when the court permits a disclosure” referred to
discretionary disclosures beyond those two exceptions outlined in the rule itself.
We read the Advisory Committee’s note as referring to the exceptions in the text of
11
The full text of Rule 6(e), as originally enacted, read:
SECRECY OF PROCEEDINGS AND DISCLOSURE. Disclosure of matters occurring
before the grand jury other than its deliberations and the vote of any juror may be
made to the attorneys for the government for use in the performance of their duties.
Otherwise a juror, attorney, interpreter or stenographer may disclose matters
occurring before the grand jury only when so directed by the court preliminarily to
or in connection with a judicial proceeding or when permitted by the court at the
request of the defendant upon a showing that grounds may exist for a motion to
dismiss the indictment because of matters occurring before the grand jury. No
obligation of secrecy may be imposed upon any person except in accordance with
this rule. The court may direct that an indictment shall be kept secret until the
defendant is in custody or has given bail, and in that event the clerk shall seal the
indictment and no person shall disclose the finding of the indictment except when
necessary for the issuance and execution of a warrant or summons.
Fed. R. Crim. P. 6(e), 327 U.S. 827, 837–38 (1945).
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the rule.
Our understanding of the Advisory Committee’s note is consistent with the
cases cited therein. All three of the cases cited by the Advisory Committee dealt
with the question whether a defendant may interrogate the members of the grand
jury that had returned an indictment against him for the purpose of gathering
evidence to challenge the sufficiency of that indictment. See Schmidt, 115 F.2d at
395; Atwell, 162 F. at 98; Am. Med. Ass’n, 26 F. Supp. at 429. And in each of
those three cases the court exercised its discretion to determine whether and to
what extent the grand jurors’ oath of secrecy may be relaxed to permit an inquiry
into the adequacy of the indictment. See Schmidt, 115 F.2d at 397 (holding that it
is the court’s responsibility to determine whether, in its discretion, to relax the rule
of grand jury secrecy, and determining that the defendants had impermissibly
obtained affidavits from the grand jurors in violation of the grand jurors’ oath of
secrecy and without prior application to or permission from the court); Atwell, 162
F. at 99–100, 103 (weighing reasons for and against the policy of grand jury
secrecy and reversing the district court’s decision to hold a grand juror in contempt
for disclosing a grand jury witness’s testimony to the defendants, in violation of
the grand juror’s oath of secrecy); Am. Med. Ass’n, 26 F. Supp. at 430–31 (holding
that only the court may release a grand juror from his oath of secrecy, and finding
that the defendants’ bare assertions that the indictment was inadequate were
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insufficient to trump the “public policy demand[ing] a lasting secrecy” on the part
of the grand jurors).
The issue decided in these cases was explicitly addressed by the original
version of Rule 6(e), which provided that “a juror . . . may disclose matters
occurring before the grand jury only when . . . permitted by the court at the request
of the defendant upon a showing that grounds may exist for a motion to dismiss the
indictment because of matters occurring before the grand jury.” Fed. R. Crim. P.
6(e), 827 U.S. at 837–38. In other words, Rule 6(e) adopted the holdings of these
cases that (1) in certain circumstances, and upon a proper showing, allegations of
impropriety before the grand jury may justify relaxing the rule of grand jury
secrecy, and (2) even where such circumstances exist, a defendant must receive
authorization from the court to access any grand jury information.
We therefore think that this note, when understood in conjunction with the
cases cited, refers only to the exceptions listed in the rule that provide for when a
district court may “permit[] a disclosure.” It does not mean that a district court
may permit disclosure in other circumstances that it deems worthy.12 Understood
in this context, the Advisory Committee’s note in fact reinforces that Rule 6(e)
12
At oral argument we asked Pitch’s counsel whether there were any other pre-Rule 6
cases in which a district court had allowed the disclosure of grand jury records to the general
public, as Pitch requests here. Counsel could not cite any cases in which a district court had
authorized such a broad disclosure, and we have found none.
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codified all the instances in which a district court may authorize the disclosure of
grand jury materials. And other Advisory Committee notes underscore that Rule
6(e) is best understood as exclusive. See Fed. R. Crim. P. 6 advisory committee’s
note to 2002 amendment (“Rule 6(e) continues to spell out the general rule of
secrecy of grand-jury proceedings and the exceptions to that general rule.”
(emphasis added)).
Second, Pitch argues that the Advisory Committee explicitly recognized in
2012 that district courts possess the inherent authority to authorize the disclosure
of historically significant grand jury records. In 2012, the Advisory Committee
rejected a proposal from the Attorney General that would have amended Rule 6(e)
to explicitly provide for the disclosure of historically significant grand jury
materials. In doing so, the Committee reached a “consensus that, in the rare cases
where disclosure of historically significant materials had been sought, district
judges had reasonably resolved applications by reference to their inherent
authority.” Advisory Committee on Criminal Rules, Minutes of Apr. 22–23, 2012,
at 7, https://www.uscourts.gov/sites/default/files/fr_import/criminal-min-04-
2012.pdf.
We do not give much weight to the Committee’s decision not to recommend
an amendment to the rule, especially forty-three years after Congress had directly
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enacted most of the critical language itself.13 As the Supreme Court has reiterated,
“[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate
tool of statutory interpretation,” because by definition it could have had no effect
on the congressional vote. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242, 131 S. Ct.
1068, 1081 (2011) (citing District of Columbia v. Heller, 554 U.S. 570, 605, 128 S.
Ct. 2783, 2805 (2008); Jones v. United States, 526 U.S. 227, 238, 119 S. Ct. 1215,
1221 (1999); United States v. Mine Workers, 330 U.S. 258, 281–82, 67 S. Ct. 677,
690 (1947)); accord U.S. Steel Mining Co. v. Director, OWCP, 719 F.3d 1275,
1283 n.9 (11th Cir. 2013) (reasoning that a senator’s statement made two days after
enactment of a statute did not—as post-enactment legislative history—constitute
legitimate legislative history, and declining to consider it in interpreting the
statute). The same reasoning applies here to the committee’s minutes. Indeed,
even the Seventh Circuit in Carlson—which reached the opposite conclusion that
we do with respect to district courts’ inherent power to authorize disclosure of
13
Congress amended Rule 6(e) directly in 1977. See Federal Rules of Criminal
Procedure Act Amendments, Pub. L. No. 95-78, 91 Stat. 319 (1977). Rule 6(e) was
subsequently amended in 1979, 1983, and 1985, and was rearranged in large part in 2002 as part
of the general restyling of the Federal Rules of Criminal Procedure. Non-substantive changes
were also made in 2006 to accommodate the effect that the Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458, Title VI, § 6501(a), 118 Stat. 3760, had on Rule 6,
and again in 2014 to update a citation. However, while the subsections of the rule may have
changed (for example, the 2002 amendments moved certain exceptions from Rule 6(e)(3)(C) to
6(e)(3)(E), where they are now located) the relevant language for our purposes has remained
substantially unchanged since 1977.
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grand jury materials outside Rule 6(e)—refused to give this failure to amend Rule
6(e) any weight. 837 F.3d at 765. As it correctly acknowledged, “the history of
some unsuccessful efforts to change the rules . . . is notoriously unreliable
evidence, even for those who are sympathetic to legislative history.” Id. The
Advisory Committee minutes are especially unreliable considering that they reflect
statements made not by Congress or the Supreme Court—the only institutions with
the authority to change the rule—but by a subcommittee of judges and other legal
professionals. We decline the opportunity to use such “history” to supplement the
text of Rule 6(e), which plainly permits a district court to authorize the disclosure
of grand jury materials only in the circumstances listed in Rule 6(e)(3)(E).14
14
For similar reasons, we do not believe, as our dissenting colleague does, that the Civil
Rights Cold Case Records Collection Act of 2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019)
(codified at 44 U.S.C. § 2107) (“Cold Case Act”)—which was enacted forty years after Congress
enacted most of the relevant language of Rule 6(e) itself—prevents us from adopting the most
natural interpretation of the text of Rule 6(e). See post at 76 (Rosenbaum, J., dissenting). While
subsequent legislation “declaring the intent of an earlier statute” may be entitled to great weight
in interpreting that statute, Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 380–81, 89 S. Ct. 1794,
1801 (1969), the Cold Case Act does not declare anything about the meaning of Rule 6(e). It
simply permits the newly established Civil Rights Cold Case Records Review Board to “request
the Attorney General to petition any court in the United States to release any information
relevant to civil rights cold cases that is held under the injunction of secrecy of a grand jury.”
Pub. L. No. 115-426 at § 8(a)(2)(A). It then provides that “a request for disclosure of civil rights
cold case records under this Act shall be deemed to constitute a showing of particularized need
under rule 6 of the Federal Rules of Criminal Procedure.” Id. at § 8(a)(2)(B). It says nothing
about the scope of the court’s authority under Rule 6 to grant the Attorney General’s request and
authorize the release of grand jury materials in a civil rights cold case. It says nothing about
what Rule 6 means.
Nonetheless, the dissent divines from this language that Congress must have thought that
courts had the inherent authority to authorize the release of these types of grand jury materials
outside the confines of Rule 6, since Rule 6(e) does not clearly permit the release of civil rights
cold case records. Post at 85–86 (Rosenbaum, J., dissenting). But our task is not to discern
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IV.
For the foregoing reasons, we hold that Rule 6(e) is exhaustive. District
courts may only authorize the disclosure of grand jury materials if one of the five
exceptions listed in Rule 6(e)(3)(E) applies; they do not possess the inherent,
supervisory power to order the release of grand jury records in instances not
covered by the rule. We therefore overrule our holding in Hastings that district
courts have inherent power to authorize the release of grand jury materials outside
the confines of Rule 6(e).
REVERSED.
Congress’s unexpressed beliefs. It is to interpret the objective meaning of the text of Rule 6(e).
Because the Cold Case Act on its face says nothing about the meaning of Rule 6(e), it is not
entitled to great weight in interpreting that Rule. It certainly does not support abandoning the
most natural reading of the text of Rule 6(e).
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WILLIAM PRYOR, Circuit Judge, joined by ED CARNES, Chief Judge, and
NEWSOM, BRANCH, GRANT, TJOFLAT, and MARCUS, Circuit Judges,
concurring:
I concur in the majority’s opinion, but I write separately to explain why the
result reached in In re Petition to Inspect and Copy Grand Jury Materials
(Hastings), 735 F.2d 1261 (11th Cir. 1984), was right, even though its reasoning,
which we overrule today, was wrong. In short, the “judicial proceeding” exception,
Fed. R. Crim. P. 6(e)(3)(E)(i), plainly permitted the limited disclosure of the grand
jury records to the Investigating Committee of the Judicial Council of the Eleventh
Circuit in Hastings.
In 1981, a grand jury indicted Judge Alcee L. Hastings of the United States
District Court for the Southern District of Florida for soliciting a $150,000 bribe in
return for reducing the sentences of convicted mobsters, but a federal jury
acquitted him at trial. Hastings, 735 F.2d at 1263; The Impeachment Trial of Alcee
L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,
https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hast
ings.htm (last visited Jan. 10, 2020). Following his acquittal, “suspicions arose that
Hastings had lied and falsified evidence during the trial.” The Impeachment Trial,
supra. In response to a complaint filed by two federal judges that Hastings’ actions
violated the Code of Judicial Conduct, the Chief Judge of the Eleventh Circuit
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formed a five-judge Committee, 28 U.S.C. § 372(c)(4) (1982), to investigate.
Hastings, 735 F.2d at 1263–64.
During the investigation, the Committee petitioned the Southern District of
Florida for access to the grand jury records from Hastings’ criminal case. Id. at
1264. Hastings intervened to oppose the request on the ground that any disclosure
would not fall within an exception in Rule 6(e)(3). Id. Although the district court
agreed with Hastings that the request did not fall within any express exception in
Rule 6(e)(3), it concluded that Rule 6(e)(3) did not abrogate the inherent powers of
the federal courts to release grand jury information in other circumstances. Id. at
1265, 1267. So the district court relied on that purported inherent power to grant
the Committee’s petition. Id.
On appeal, every judge of our Court recused, so the Chief Justice of the
United States designated three judges from sister circuits to serve as a panel to hear
the appeal. Id. at 1265 n.3. That special panel affirmed. Id. at 1275. It decided that
the “district court’s belief that it had inherent power beyond the literal wording of
Rule 6(e) [was] amply supported.” Id. at 1268. And, it concluded “special
circumstances” existed due to the nature of the judicial investigation and the
breadth of the Committee’s authorizing statute. Id. at 1268–69.
In reaching its decision, the panel equivocated about whether the disclosure
might fall within the exception for disclosures made “preliminarily to or in
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connection with a judicial proceeding.” Id. at 1271 (quoting Fed. R. Crim. P.
6(e)(3)(E)(i)). The panel explained that the proceeding before the Eleventh Circuit
Judicial Council and its investigatory Committee was plainly a “judicial inquiry”
based on the composition of the Council and Committee and the statutory
protections afforded the accused. Id. at 1271–72. But it doubted whether the
proceeding satisfied the definition of “judicial proceeding” first articulated by
Judge Learned Hand. Id. (“[A] judicial proceeding . . . includes any proceeding
determinable by a court.” (quoting Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir.
1958)). In the end, the panel affirmed the disclosure in part because the proceeding
was at least “closely akin” to a judicial proceeding, even if it was not “a judicial
proceeding in the strict legal sense” of the term. Id. at 1272.
After a three-year investigation, which included “hearing testimony from
over 100 witnesses and receiving approximately 2800 exhibits,” the Committee
concluded in a report to the Judicial Council that Hastings solicited a monetary
bribe, committed perjury, and tampered with evidence. Alan I. Baron, The Curious
Case of Alcee Hastings, 19 Nova L. Rev. 873, 874 (1995); see also The
Impeachment Trial, supra. The Judicial Council then referred the complaint to the
Judicial Conference of the United States, which “concurred in the Council’s
assessment that . . . impeachment may be warranted” and “certified this
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determination to the House of Representatives.” Hastings v. Judicial Conference of
U.S., 829 F.2d 91, 93 (D.C. Cir. 1987).
The House approved 17 articles of impeachment, and the Senate convicted
Hastings on 8 articles. The Impeachment Trial, supra. President pro tempore
Robert C. Byrd ordered Hastings removed from office but did not disqualify
Hastings from holding future office. Id. Indeed, Hastings currently serves as a
United States Representative from Florida. Id.
In my view, the Hastings panel had no reason to doubt whether the judicial-
proceeding exception applied. The disclosure of the grand jury records was plainly
“in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i). That is,
Hastings reached the right result, even if for the wrong reason.
Consider first the ordinary meaning of the term “judicial proceeding.” When
Rule 6(e)(3)(E)(i) was adopted, Black’s Law Dictionary defined “judicial
proceeding” as “any proceeding wherein judicial action is invoked and taken.”
Judicial Proceeding, Black’s Law Dictionary (4th ed. 1951). It in turn defined
“judicial action” to include “the investigation and determination of . . . facts”
“[w]hen an inferior officer or board is charged with an administrative act, the
performance of which depends upon and requires the existence or ascertainment of
facts.” Judicial Action, Black’s Law Dictionary (4th ed. 1951) (“An adjudication
upon rights of parties who in general appear or are brought before tribunal by
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notice or process, and upon whose claims some decision or judgment is
rendered. . . . Action of a court upon a cause, by hearing it, and determining what
shall be adjudged or decreed between the parties, and with which is the right of the
case.”); see also Judicial Proceeding, Black’s Law Dictionary (11th ed. 2019)
(“Any court proceeding; any proceeding initiated to procure an order or decree,
whether in law or in equity.”). Indeed, courts have long given “[t]he term judicial
proceeding . . . a broad interpretation.” In re Sealed Motion, 880 F.2d 1367, 1379–
80 (D.C. Cir. 1989) (collecting cases); see also In re In re Comm. on the Judiciary,
U.S. House of Representatives, No. 19-5288, 2020 WL 1149883, at *1, 5 (D.C.
Cir. Mar. 10, 2020) (citing In re Sealed Motion to support conclusion that an
impeachment proceeding qualifies as a “judicial proceeding” within the meaning
of Rule 6(e)(3)(E)(i)). Predating the passage of Rule 6, some courts defined
“judicial proceedings” “as proceedings before a court or a judge.” Lybrand v. The
State Co., 184 S.E. 580, 583 (S.C. 1936); see also Campbell v. N.Y. Evening Post,
Inc., 157 N.E. 153, 155 (N.Y. 1927). And soon after the passage of Rule 6, courts
continued to explain that “[t]he term judicial proceeding is not restricted to trials,
but includes every proceeding of a judicial nature before a court or official clothed
with judicial or quasi judicial power.” Richeson v. Kessler, 255 P.2d 707, 709
(Idaho 1953); accord Jarman v. Offutt, 80 S.E.2d 248, 251 (N.C. 1954); Quasi
Judicial, Black’s Law Dictionary (4th ed. 1951) (“A term applied to the action,
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discretion, etc., of public administrative officers, who are required to investigate
facts, or ascertain the existence of facts, and draw conclusions from them, as a
basis for their official action, and to exercise discretion of a judicial nature.”).
Consider next the Judicial Conduct and Disability Act of 1980, which
governed the complaint against Hastings. The Act required the chief judge of each
circuit to form a Judicial Council to oversee the administration of justice within the
circuit, including the review of ethics complaints against judges. See 28 U.S.C.
§§ 332(a)(1), (d), 372(c)(6) (1982). The Judicial Council consisted solely of
Article III judges who were statutorily “authorized to hold hearings, to take sworn
testimony, and to issue subpoenas.” Id. § 332 (a)(4), (d)(1). The Act required the
chief judge of a circuit where a complaint against a judge was filed to review the
complaint and take one of three actions. He could by “written order stating his
reasons” either “dismiss the complaint” or “conclude the proceeding.” Id.
§ 372(c)(3). Both the complainant and the accused judge could petition the Judicial
Council for review of that decision if desired. Id. § 372(c)(10). Otherwise, the Act
required the chief judge to create a special committee, again composed of only
federal judges, to investigate the complaint. Id. § 372(c)(4). The Committee then
conducted as “extensive” an investigation “as it consider[ed] necessary” and, like
the Judicial Council, had full subpoena powers. Id. § 372(c)(5), (c)(9)(A).
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The Act provided rights to the accused judge and complainant and required
specific procedures for every investigation. The accused judge was entitled to
receive written notice of the investigation, to appear in person or by counsel before
the Committee, to submit written briefing, “to present oral and documentary
evidence, to compel the attendance of witnesses or the production of documents,
[and] to cross-examine witnesses.” Id. § 372(c)(4)(C), (c)(11). A complainant also
was entitled to appear before the Committee if he “could offer substantial
information.” Id. § 372(c)(11)(C). The statute provided for mileage allowance and
witness fees paid out of the funds appropriated for the courts and commensurate
with the rate provided for witnesses appearing in federal court. 28 U.S.C.
§ 604(h)(1) (1982); id. § 1821. After the Committee completed its investigation, it
was required to draft a report containing “the findings of the investigation and the
committee’s recommendations for necessary and appropriate action.” Id.
§ 372(c)(5). The Committee then forwarded its report to the Judicial Council. Id.
The Judicial Council acted as the decisionmaker on the complaint. It
reviewed the Committee’s report and recommendation, and it could also conduct
additional investigation, including holding hearings. Id. §§ 332(d)(1),
372(c)(6)(A). The Act then empowered the Judicial Council to take several
different actions, including “censuring or reprimanding” the accused judge and
certifying the matter to the Judicial Conference to determine whether the judge
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should be referred to Congress for impeachment. Id. at § 372(c)(6), (c)(7). Any
“written order to implement any action . . . by a judicial council . . . [had to] be
made available to the public through the appropriate clerk’s office of the court of
appeals.” Id. § 372(c)(15). And ordinarily “each such order” was “accompanied by
written reasons.” Id. In any event, the Judicial Council was required to provide
“written notice” of any decision to both the complainant and the accused judge. Id.
§ 372(c)(6)(C), (c)(7)(C). Any complainant or judge “aggrieved by” the action
could petition for review by the Judicial Conference of the United States, id.
§ 372(c)(10), which was composed of the Chief Justice, the chief judge of each
circuit, and one district judge of each circuit, id. § 331. In sum, the proceedings
included the taking of evidence and ordinarily culminated in a publicly available
written order that affected the rights of the accused judge and that was appealable
to the Judicial Conference.
The ordinary meaning of “judicial proceeding” plainly included the process
required by the Judicial Conduct and Disability Act. Once a complaint was
forwarded to a special investigating committee, federal judges had to investigate,
preside, find facts, and issue orders that affected the accused’s rights. See Lybrand,
184 S.E. at 583 (defining “judicial proceedings” “as proceedings before a court or
a judge”); Campbell, 157 N.E. at 155 (same); Richeson, 255 P.2d at 709 (defining
a “judicial proceeding” as “every proceeding of a judicial nature before a court or
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official clothed with judicial or quasi judicial power”); Jarman, 80 S.E.2d at 251
(same). The accused judge was afforded the opportunity to present evidence and
argument. The complainant and the accused judge could petition for review of the
Judicial Council’s order, which was ordinarily public and accompanied by written
reasons. See Judicial Action, Black’s Law Dictionary (4th ed. 1951) (“An
adjudication upon rights of parties who in general appear or are brought before
tribunal by notice or process, and upon whose claims some decision or judgment is
rendered. . . . Action of a court upon a cause, by hearing it . . . .”). So the
misconduct proceedings in Hastings bore all the hallmarks of a “judicial
proceeding.”
The definition provided by Judge Hand in Doe also covered the proceeding
in Hastings, despite the special panel’s doubts. See Hastings, 735 F.2d at 1271.
Judge Hand defined “judicial proceeding” as including “any proceeding
determinable by a court, having for its object the compliance of any person, subject
to judicial control, with standards imposed upon his conduct in the public interest,
even though such compliance is enforced without the procedure applicable to the
punishment of crime.” Doe, 255 F.2d at 120. Judge Hand stressed that a narrower
interpretation of “judicial proceeding” “would not only be in the teeth of the
language employed, but would defeat any rational purpose that can be imputed to”
the judicial-proceeding exception of Rule 6. Id. The Judicial Council, composed of
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federal judges, is “[a]n organ of the government, belonging to the judicial
department, whose function is the application of the laws to controversies brought
before it and the public administration of justice.” Court, Black’s Law Dictionary
(4th ed. 1951). And the purpose of review of the complaint by the Judicial Council
was to assure Hastings had not “engaged in conduct prejudicial to the effective and
expeditious administration of the business of the courts” or in violation of either
the Constitution or the Code of Judicial Conduct. See 28 U.S.C. § 372(c)(1),
(c)(7)(B)(i); Hastings, 735 F.2d at 1263. So that “proceeding determinable by a
court ha[d] for its object the compliance of” judges with “standards imposed . . . in
the public interest.” Doe, 255 F.2d at 120.
The proceeding in Hastings also qualified as a “judicial proceeding” under
Supreme Court precedent. The Supreme Court has explained that “judicial
proceedings” are proceedings that call upon a court “to investigate, declare, and
enforce ‘liabilities as they [stand] on present or past facts and under laws supposed
already to exist.’” D.C. Court of Appeals v. Feldman, 460 U.S. 462, 479 (1983)
(quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908)). The
adjudication of a “present right” is “the essence of a judicial proceeding.” Id. at
481. “The form of the proceeding is not significant” in evaluating whether a
proceeding is judicial. In re Summers, 325 U.S. 561, 567 (1945). “It is the nature
and effect which is controlling.” Id. Indeed, the Court found a state supreme
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court’s proceeding on a bar petition “judicial,” even though the state court had “not
treated [the proceeding] as judicial” and its clerk had not “enter[ed] [the
proceeding] in the file, on a docket, or on a judgment roll.” Id. at 563, 567. That
the state court considered the petition “on its merits” and “passed an order which
[was] validated by the signature of the presiding officer” sufficed to make the
proceeding “judicial.” Id. at 567–68. Similarly, the Court found a D.C. Circuit
proceeding on a bar petition “judicial” even though the petitioner failed to “cite
case authority” or “make any explicitly legal contentions.” Feldman, 460 U.S. at
481. The D.C. Circuit “consider[ed] policy and equitable arguments” in evaluating
the petition, which is “essentially [a] judicial inquir[y].” Id.
The process in Hastings offered “the essence of a judicial proceeding”
despite the fact that it did not “assume the form commonly associated with judicial
proceedings.” Id. at 481–82. When reviewing the complaint, the Council was
required to consider policy, the Code of Judicial Conduct, and the “good
Behaviour” requirement of Article III, U.S. Const. art III, § 1. That is, it was
required to evaluate the complaint “on [the] merits,” Summers, 325 U.S. at 567,
and “on present or past facts and under laws [or policies] supposed already to
exist,” Feldman, 460 U.S. at 479 (internal quotation marks omitted). The Council
was then required to issue an order on the complaint that would affect Hastings’
“present right[s],” id., by possibly requesting he voluntarily retire, temporarily
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ordering that no other cases be assigned to him, censuring or reprimanding him, or
recommending him to the Judicial Conference for impeachment consideration. 28
U.S.C. § 372(c)(6)(B), (c)(7)(B). And because the disclosure of the grand jury
materials in Hastings was for use in the misconduct proceeding, the disclosure was
plainly “in connection with a judicial proceeding.” United States v. Baggott, 463
U.S. 476, 479–80 (1983) (approving the “sensibl[e] understand[ing of] the term ‘in
connection with,’ [as] refer[ring] to a judicial proceeding already pending” where
“the primary purpose of disclosure is . . . to assist in . . . conduct[ing] a judicial
proceeding”).
Our sister circuit has concluded that certain proceedings by the Fifth Circuit
Judicial Council are “judicial in nature.” In re McBryde, 117 F.3d 208, 221 (5th
Cir. 1997). In that case, the Chief Judge of the Northern District of Texas
reassigned two cases from another district judge to himself. Id. at 215. That district
judge disagreed with the reassignment and requested review by the Fifth Circuit
Judicial Council by filing a complaint under the Judicial Conduct and Disability
Act of 1980—the same proceedings as those initiated in Hastings. Id. at 217, 227.
The Chief Judge of the Fifth Circuit referred the matter to a special investigatory
committee, which held a hearing, heard testimony, and took evidence. Id. at 217.
After the committee forwarded its report and recommendation, the Judicial Council
concluded the reassignments were warranted and issued an order reassigning the
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cases. Id. The district judge petitioned the Fifth Circuit for a writ of mandamus
preventing the reassignment. Id. at 219. The Fifth Circuit was then confronted with
the question whether it could issue a preemptory writ to the Judicial Council. Id. It
examined whether the Judicial Council should be viewed “as an administrative
body subservient to the judiciary,” which would then allow it to review the order
on mandamus. Id. at 220.
The Fifth Circuit acknowledged that the Judicial Council acts in an
administrative capacity in some circumstances but concluded that “it acted as a
court in this case.” Id. at 221 (citing Feldman, 460 U.S. at 477). That the Judicial
Council took sworn testimony, examined records, and issued its order “because of
alleged misconduct,” supported that these proceedings were “judicial in nature.”
Id. Because the proceeding was not “administrative,” it could not issue a writ to the
Judicial Council. Id. (stopping short of definitively calling the Judicial Council a
“judicial body” because that question only mattered if the parties sought relief
from the Supreme Court); cf. Chandler v. Judicial Council of Tenth Cir. of the
U.S., 398 U.S. 74, 102–03 (1970) (Harlan, J., concurring) (“[A]t least in the
issuance of orders to district judges to regulate the exercise of their official duties,
the Judicial Council acts as a judicial tribunal for purposes of this Court’s appellate
jurisdiction under Article III. . . . [There is] no doubt that the Councils’ architects
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regarded the authority granted the Councils as closely bound up with the process of
judging itself.”).
Several of our sister circuits’ decisions that attorney disciplinary proceedings
can be “judicial proceedings” within the meaning of Rule 6(e)(3)(E)(i) also support
the result in Hastings. So long as there is substantial judicial involvement in the
process, like the disciplinary proceedings being held before a judicial tribunal, our
sister circuits have concluded that these disciplinary proceedings are “preliminarily
to or in connection with a judicial proceeding.” See In re Grand Jury 89-4-72, 932
F.2d 481, 485–86 (6th Cir. 1991); In re Fed. Grand Jury Proceedings, 760 F.2d
436, 438–39 (2d Cir. 1985); In re Barker, 741 F.2d 250, 254–55 (9th Cir. 1984);
United States v. Bates, 627 F.2d 349, 351 (D.C. Cir. 1980); Doe, 255 F.2d at 120.
We too have said in dicta that we agree that “proceedings to discipline attorneys
where bar committees act as an arm of the court are part of judicial proceedings
because this function has been assigned to the judiciary from time immemorial.” In
re J. Ray McDermott & Co., 622 F.2d 166, 170–71 (5th Cir. 1980) (holding
disclosure of grand jury records to the Federal Energy Regulatory Commission
impermissible because the hearings before the Commission were not “closely tied
to” a judicial proceeding).
In short, there is no reason to distinguish judicial disciplinary proceedings
from those of attorney disciplinary proceedings or from the decision in McBryde
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calling these proceedings “judicial in nature.” The disclosure of grand jury
documents in Hastings was plainly “in connection with a judicial proceeding,” so
the result in Hastings, although not its reasoning, was right.
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JORDAN, Circuit Judge, concurring in the judgment:
This is a difficult case, as illustrated by the circuit split on the issue. I agree
with the court that the better view is that the exceptions set out in Rule 6(e) to the
general requirement of grand jury secrecy are exclusive. See Carlson v. United
States, 837 F.3d 753, 769–70 (7th Cir. 2016) (Sykes, J., dissenting); McKeever v.
Barr, 920 F.3d 842, 844–49 (D.C. Cir. 2019). “Inherent authority” is not available
to create additional exceptions because “the exercise of an inherent power cannot be
contrary to any express grant of or limitation on the district court’s power contained
in a rule or statute.” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (citations
omitted). I therefore concur in the judgment.
I write separately for two reasons. First, it seems to me that the concept of
grand jury secrecy is not as neat as the court suggests. Second, given the circuit
split, I encourage the Judicial Conference’s Advisory Committee on Criminal Rules
to address whether Rule 6(e) should be amended to permit the disclosure of grand
jury materials for matters of exceptional historical significance.
*******
As the court recognizes, the rule of grand jury secrecy is firmly entrenched in
our criminal justice system. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441
U.S. 211, 218 n.9 (1979). The court identifies five oft-cited reasons animating the
need for secrecy: (1) to prevent the escape of the accused whose indictment might
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be contemplated; (2) to ensure the utmost freedom to grand jury deliberations and
prevent tampering with jurors; (3) to prevent perjury or tampering with witnesses;
(4) to encourage free sharing of information from people who may have knowledge
of a crime; and (5) to protect an innocent accused who is exonerated. See Maj. Op.
at 10–11 (quoting Douglas Oil, 441 U.S. at 219 n.10). This list—which was
“summarized” from decades of case law and treatises on the subject—glosses over
the evolution in thinking about the reasons for grand jury secrecy and does not tell
the whole story about the federal judiciary’s approach to secrecy before the adoption
of the Federal Rules of Criminal Procedure.
From its inception in England, the rule of secrecy appears to have functioned
to secure the grand jury’s independence from the crown. See Richard Calkins, The
Fading Myth of Grand Jury Secrecy, 1 J. Marshall J. Prac. & Proc. 18, 18–19 (1967).
As the grand jury continued to evolve in England, the secrecy component became
seen as a means to prevent escape by suspected criminals. See George Edwards, Jr.,
The Grand Jury 116 (1906) [Legal Classics Library ed. 2003]. See also Mark
Kadish, Behind the Locked Doors of an American Grand Jury: Its History, its
Secrecy, and its Process, 24 FL. ST. U. L. REV. 1, 13 (1996) (explaining that, during
the grand jury’s beginnings in England, secrecy was part of the process in order to
prevent escape by offenders). In the early days of the republic, American and
English commentators alike held “many diverse views” regarding the reasons for
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secrecy, while others attacked these views and the need for grand jury secrecy more
generally. See Edwards, The Grand Jury, at 116 & nn.80–83. One late 1800s
American commentator focused on two prominent reasons for secrecy, while
criticizing the concept: to give the government a proper advantage in conducting its
investigation, and to provide grand jurors freedom from fear or restraint. See Eugene
Stevenson, Our Grand Jury System, 8 Crim. L. Mag. & Rep. 711, 720 (1886). By
the early twentieth century, many courts had already begun to recite the full set of
traditional justifications for secrecy later set out in Douglas Oil. See, e.g., Schmidt
v. United States, 115 F.2d 394, 396–97 (6th Cir. 1940) (citing United States v.
Amazon Chem. Corp., D.C., 55 F.2d 254, 261 (D. Md. 1931)).
Whatever the reasons for secrecy in the pre-Rules era, when the grand jury’s
functions had concluded courts had the authority to disclose materials “where the
ends of justice require[d] it.” United States v. Socony-Vacuum Oil Co., 310 U.S.
150, 234 (1940) (citation omitted). Courts facing the question of whether to disclose
grand jury materials looked to the specific circumstances before them to determine
whether the need for secrecy had dissipated. For example, several pre-Rules cases
concluded that the need for secrecy was lessened after the grand jury had made its
presentment and indictment, the indictment had been made public, the grand jury
had been discharged, and/or the accused was in custody. See Atwell v. United States,
162 F. 97, 99–101 (4th Cir. 1908) (holding that the rule of secrecy did not preclude
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a grand juror, post-indictment, from disclosing evidence presented to the grand jury);
Metzler v. United States, 64 F.2d 206 (9th Cir. 1923) (allowing an assistant U.S.
attorney present at the grand jury to read in evidence at trial from shorthand notes
taken at the proceedings because “[a]fter the indictment has been found and made
public and the defendants apprehended, the policy of the law does not require the
same secrecy as before”) (citations omitted); In re Grand Jury Proceedings, 4 F.
Supp. 283, 285 (E.D. Pa. 1933) (“The fact that the grand jury has adjourned and been
discharged has often been considered as one reason for abandoning secrecy as to its
deliberations.”). In these cases, concerns about an escaping offender or tampering
with jurors and witnesses were no longer at issue.
Likewise, other pre-Rules cases involving challenges to the evidence
supporting an indictment concluded that it would be proper to relax the rule of
secrecy to prevent abuses in the grand jury proceeding itself. See Murdick v. United
States, 15 F.2d 965, 967–68 (8th Cir. 1926) (“There is no divinity surrounding [the
grand jury’s] action, and the court has the right to go behind the secrecy imposed
upon a grand jury as to its proceedings, where the interests of justice demand it.”);
United States v. Byoir, 147 F.2d 336, 336–37 (5th Cir. 1945) (acknowledging that a
court “had discretionary authority to permit disclosure of what happened before the
grand jury when necessary to advance the cause of justice,” and affirming an order
allowing the defendant to examine grand jury minutes related to evidence as to him,
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and relieving the stenographer of his secrecy obligation to allow him to testify before
the court); McKinney v. United States, 199 F. 25, 27 (8th Cir. 1912) (noting that
“doubtless in extreme instances a court may do what is needful to prevent clear
injustice or an abuse of judicial process” at the grand jury stage). Indictments had
already been returned in these cases, so again concerns such as protecting innocent
and/or exonerated accused persons were naturally not relevant and did not support
maintaining the veil of secrecy.
Consistent with this circumstance-specific approach, even when courts in the
pre-Rules era determined that disclosure was appropriate, they recognized
distinctions among the types of materials sought to be obtained, and the policy
reasons to afford greater secrecy to some kinds of records and information (e.g.,
juror discussions and votes). In the words of one court, “infinite secrecy” might be
desired for discussions and votes of individual jurors to protect them from the “the
malice and consequent injury growing out of his neighbor’s knowledge that he had
advocated or voted for a presentment against him.” Atwell, 162 F. at 100. See also
United States v. Farrington, 5 F. 343, 347 (N.D.N.Y. 1881) (“[W]henever it
becomes essential to ascertain what has transpired before a grand jury it may be
shown, no matter by whom; and the only limitation is that it may not be shown how
the individual jurors voted or what they said during their investigations . . . because
this cannot serve any of the purposes of justice.”) (citations omitted); McKinney, 199
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F. at 38 (Sanborn, J., dissenting) (“[T]he modern and the true rule is that the veil of
secrecy may be removed from all the proceedings before the grand jury, except the
votes and sayings of the grand jurors . . . .”) (citations omitted).
The guidepost for disclosure in each of these pre-Rules cases was only
whether the ends of justice would be furthered. See Metzler, 64 F.2d at 206; In re
Grand Jury Proceedings, 4 F. Supp. at 285. At least one circuit court—somewhat
inverting the default—said that secrecy should be maintained “[t]o the full extent
necessary to fulfill the ends of justice, and no further.” Atwell, 162 F. at 100. This
broad standard gave courts substantial discretion to decide whether disclosure was
appropriate after weighing the need for secrecy against competing concerns.
*******
In 2012, the Advisory Committee on Criminal Rules decided not to proceed
with a proposal from then–Attorney General Eric Holder to amend to Rule 6(e) to
allow disclosure for historically significant grand jury materials. See Judicial
Conference Committee on Rules of Practice and Procedure Minutes, June 11–12,
2012, at 44. See also Summary of the Report of the Judicial Conference Committee
on Rules of Practice and Procedure, Sept. 2012, at 32–33. The proposal was not
rejected out of the concern the majority hints at—that it would be difficult to
determine when something was “so ‘historically significant’ that the interest in
disclosure outweighs the interest of that the grand jurors, witnesses, and future
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generations, among others, have in maintaining the secrecy of the proceedings.” See
Maj. Op. 19 n.9. On the contrary, the Advisory Committee believed that amendment
of Rule 6 “would be premature” and that “district judges had reasonably resolved”
applications for disclosure on these grounds. See Summary of the Report of the
Judicial Conference Committee on Rules of Practice and Procedure, Sept. 2012, at
33.1
Although the Advisory Committee deemed Attorney General Holder’s
proposed amendment unnecessary, its determination implicitly contemplated that a
historical importance exception might be ripe for consideration at some future date.
Given the current circuit split and the Supreme Court’s recent denial of certiorari on
the issue, see McKeever v. Barr, No. 19-307, 2020 WL 283746 (U.S. Jan. 21, 2020),
it appears that day is upon us. See id. at *1 (Breyer, J., respecting the denial of
certiorari) (noting that this is an “important question” that the Rules Committee “can
and should revisit”). I therefore urge the Advisory Committee on Criminal Rules to
1
A copy of Attorney General Holder’s proposal is attached as an appendix to the Court’s
opinion. The proposed amendment would permit disclosure of grand jury materials of exceptional
historical significance that are at least 30 years old and that have become part of the permanent
records of the National Archives under 44 U.S.C. § 2107. See Letter from Attorney General Eric
Holder to Judge Reena Raggi, Chair of the Judicial Conference’s Advisory Committee on Criminal
Rules, Oct. 18, 2011, at 6–8, 6 n.3. As to cases at least 30 years old, the proposed amendment
would authorize district courts to determine whether disclosure is warranted on a case-by-case
basis. See id. at 6–8. Records 75 years or older would become available to the public under the
same standards applicable to other records in the National Archives. See id. at 6, 8 (citation
omitted).
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consider whether Rule 6(e) should be amended to permit the disclosure of grand jury
materials for matters of exceptional historical significance and, if so, under what
circumstances.2
*******
With these thoughts, I concur in the judgment.
2
Ms. Pitch’s motion for leave to file a supplemental brief suggests that an amendment to
Rule 6 indeed may be the only way of obtaining the grand jury records. Congress has provided a
means to access materials like the Moore’s Ford Lynching grand jury records in the Civil Rights
Cold Case Records Collection Act of 2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019) (codified
at 44 U.S.C. § 2107 note). But according to Ms. Pitch, apparently there have not been any
congressional appropriations. Nor have there been any appointments to the Review Board charged
with evaluating petitions under the Act.
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WILSON, Circuit Judge, joined by MARTIN, as to Parts II and III, and JILL
PRYOR, Circuit Judges, dissenting:
For nearly 40 years, our precedent has been consistent with both history and
the text of Rule 6(e). It has been the law in this Circuit that district courts have
inherent authority to order the disclosure of sealed grand jury materials outside of
Rule 6(e)’s list of enumerated exceptions. We previously stated:
Although Rule 6(e)(3) enumerates the exceptions to the
traditional rule of grand jury secrecy, the Supreme Court and this
Court have recognized that the district courts have inherent
power beyond the literal wording of Rule 6(e)(3) to disclose
grand jury material and that Rule 6(e)(3) is but declaratory of that
authority.
United States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir. 2004) (citing
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398–99 (1959)).
The fountainhead for this precedent in our Circuit is In re Petition to
Inspect and Copy Grand Jury Materials, where we held that “a petition by a
judicial investigating committee presents one of the occasions when a district
court may act outside the strict bounds of Rule 6(e), in reliance upon its
historic supervisory power.” 735 F.2d 1261, 1273 (11th Cir. 1984)
[hereinafter Hastings]. 1 Our reasoning in Hastings has been adopted by two
1
Before our decision in Hastings, the Second Circuit reached the same conclusion in In
re Biaggi, 478 F.2d 489, 490–94 (2d Cir. 1973) (holding that—despite Rule 6(e)’s enumerated
exceptions—grand jury secrecy is not absolute and therefore, “under the special circumstances”
of that case, disclosure was to the public’s benefit and would not undermine the values protected
by the “rule of secrecy”).
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other circuits. See, e.g., Carlson v. United States, 837 F.3d 753, 766 (7th Cir.
2016); In re Petition of Craig, 131 F.3d 99, 103 (2d Cir. 1997).2
Today, we do an about-face and hold that “Rule 6(e) is exhaustive.”
Majority Op. at 4, 31. Now, “[d]istrict courts may only authorize the
disclosure of grand jury materials if one of the five exceptions listed in Rule
6(e)(3)(E) applies; they do not possess the inherent, supervisory authority to
order the release of grand jury records in instances not covered by the rule.”
Id. at 30.
I dissent for two reasons.
I.
First, this case does not justify an abrupt departure from several
decades of settled Eleventh Circuit precedent, especially to overrule a district
judge’s well-reasoned decision relying on that precedent.
“[N]o judicial system could do society’s work if it eyed each issue afresh in
every case that raised it.” Chicago Truck Drivers, Helpers & Warehouse Union
(Indep.) Pension Fund v. Steinberg, 32 F.3d 269, 272 (7th Cir. 1994). “Indeed, the
2
Two additional circuits—the First and the Tenth—have acknowledged that district
courts may release grand jury materials outside Rule 6(e)’s enumerated exceptions. See In re
Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005) (holding that Rule 6(e)’s “phrasing can,
and should, accommodate rare exceptions premised on inherent judicial power” and endorsing
our holding in Aisenberg); In re Special Grand Jury 89-2, 450 F.3d 1159, 1178–79 (10th Cir.
2006) (recognizing that there is “substantial support” for the notion that courts may order
disclosure using their “inherent authority,” even when Rule 6(e) does not apply).
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very concept of the rule of law underlying our own Constitution requires such
continuity over time that a respect for precedent is, by definition, indispensable.”
United States v. Aman, 31 F.3d 550, 554 (7th Cir. 1994).
That is not to say that this Court lacks the authority to revisit prior precedent
in a case of exceptional importance when the “prior judicial ruling should come to
be seen so clearly as error that its enforcement was for that very reason doomed.”
Id. But, there is a high bar for en banc review. It “is not favored,” and will
ordinarily not be conducted unless it is necessary to resolve an intra-Circuit split or
“involves a question of exceptional importance.” Fed. R. App. P. 35(a). This
appeal falls into neither category.
The majority says times have changed, and it interprets the rule
differently now. But our precedent should not zigzag back and forth based on
the outcome of each case. Moreover, release of grand jury materials is not an
everyday occurrence—before this case, district courts in the Eleventh Circuit
had only unsealed grand jury transcripts, over an objection, twice since the
Court was established in 1981.3 See Aisenberg, 358 F.3d at 1331; Hastings,
735 F.2d at 1264–65, 1275. And if a district judge abuses that authority, there
3
Moreover, the Department of Justice has admitted that, nationwide, the use of inherent
authority to disclose grand jury records has been “rare.” See Advisory Comm. on Crim. Rules,
Agenda Book 223 (Apr. 2012).
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is a safeguard—the exercise of that discretion is subject to our review. See
Aisenberg, 358 F.3d at 1350–52.
In short, while the underlying circumstances in this case were
exceptional, the underlying opinion was not. Therefore, I would maintain our
long-standing precedent permitting district judges to exercise their inherent
supervisory authority to unseal grand jury records “in an appropriate factual
situation.” See Hastings, 735 F.2d at 1272.
II.
More importantly, I dissent because we correctly interpreted the text of
Rule 6(e) the first time around, and the second. I advance this argument in
three parts. First, our decision in Hastings was in line with the common-law
tradition of courts exercising their inherent authority to disclose grand jury
materials in circumstances both “mundane” and “weighty.” See Carlson, 837
F.3d at 762. Second, Hastings was in harmony with the Federal Rules of
Criminal Procedure because Rule 6(e) did not eliminate the inherent authority
of district courts to disclose grand jury materials in extraordinary
circumstances. And third, Rule 6(e)’s history further demonstrates that the
rule did not and does not abrogate district courts’ authority to disclose grand
jury materials.
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A.
District courts have limited inherent power to supervise grand jury
proceedings; the existence of that power is supported by its history and use.
Before the advent of the Federal Rules of Criminal Procedure, there was no
question as to whether district courts had discretion to relax the traditional rule of
secrecy. See Schmidt v. United States, 115 F.2d 394, 397 (6th Cir. 1940). The
Supreme Court said as much: “Grand jury testimony is ordinarily confidential. But
after the grand jury’s functions are ended, disclosure is wholly proper where the
ends of justice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
233–34 (1940) (citation omitted).
It is true that grand juries are functionally independent from district courts,
but they remain “an arm of the court,” Levine v. United States, 362 U.S. 610, 617
(1960), and operate “under general instructions from the court[s] to which [they
are] attached,” Cobbledick v. United States, 309 U.S. 323, 327 (1940); see also In
re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 680 n.4 (8th Cir. 1986)
(stating that the grand jury “acts under the inherent supervision of the court”). 4 For
4
I use the phrase “functionally independent” advisedly, because the Supreme Court has
recognized that the grand jury has a degree of independence from courts. However, the Court
has not decided the extent of that independence. Compare Levine, 362 U.S. at 617 (“The grand
jury is an arm of the court . . . . The Constitution itself makes the grand jury a part of the judicial
process.”) (citation omitted) (internal quotation mark omitted), with United States v. Williams,
504 U.S. 36, 47 (1992) (“Although the grand jury normally operates, of course, in the courthouse
and under judicial auspices, its institutional relationship with the Judicial Branch has
traditionally been, so to speak, at arm’s length.”). As I explain infra, this functional
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example, though the grand jury “must initiate prosecution for . . . federal crimes,”
it “does so under general instructions from the court,” and “from time to time, it
reports its findings” to the court. Cobbledick, 309 U.S. at 327. Furthermore, to
subpoena a witness, a grand jury may appeal “to the court under whose aegis the
grand jury sits.” Levine, 362 U.S. at 617. And several courts have recognized that
grand jury records are court records. See Carlson, 837 F.3d at 758 (“Because the
grand jury is part of the judicial process, its minutes and transcripts are necessarily
records of the court.” (citation omitted) (internal quotation marks omitted));
Standley v. Dep’t of Justice, 835 F.2d 216, 218 (9th Cir. 1987) (holding that
“[g]rand jury materials are records of the district court”); In re Grand Jury
Investigation of Cuisinarts, Inc., 665 F.2d 24, 31 (2d Cir. 1981) (same); United
States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (same); see also United
States v. Procter & Gamble Co., 356 U.S. 677, 685 (1958) (Whittaker, J.,
concurring).
To be sure, a court’s inherent supervisory power over grand juries is “very
limited” and “not remotely comparable to the power” that a court maintains over
its own proceedings. Williams, 504 U.S. at 50. Grand juries’ functional
independence prevents “judicial reshaping of the grand jury institution.” Id.
independence means, at a minimum, that courts’ inherent supervisory power over grand juries is
limited in nature. See Williams, 504 U.S. at 50.
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Therefore, courts’ supervisory power is used to “preserve or enhance the
traditional functioning of the grand jury.” Carlson, 837 F.3d at 762 (internal
quotation mark omitted).
Within the inherent supervisory power of district courts is “the discretion to
determine when otherwise secret grand-jury materials may be disclosed.” Id.
Though grand juries are subject to a general rule of secrecy, that secrecy has never
been absolute. See Michael A. Foster, Cong. Research Serv., R45456, Federal
Grand Jury Secrecy: Legal Principles and Implications for Congressional
Oversight 5 (2019) (stating that the general rule of grand jury secrecy is “not
unyielding”). Instead, the rule of secrecy has been relaxed and disclosure
permitted “whenever the interest of justice requires,” and that decision “rests
largely within the discretion of the court.” In re Grand Jury Proceedings, 4 F.
Supp. 283, 284 (E.D. Pa. 1933); see also United States v. Farrington, 5 F. 343, 346
(N.D.N.Y. 1881) (stating that “[i]t is only practicable” for courts “to exercise a
salutary supervision over the proceedings of a grand jury” by “removing the veil of
secrecy whenever evidence of what has transpired before them becomes necessary
to protect public or private rights”). This is because grand jury secrecy is derived
from common law, and like any common-law fixture, it has changed in both its
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scope and purpose.5 See Douglas Oil Co. of Ca. v. Petrol Stops Nw., 441 U.S. 211,
218 n.9 (1979) (citing Richard M. Calkins, Grand Jury Secrecy, 63 Mich. L. Rev.
455, 457 (1965)).
This history is crucial to our understanding of Rule 6(e) and its effects on the
courts’ inherent power to disclose grand jury materials. It demonstrates that Rule
6(e) is “not the true source of the district court’s power with respect to grand jury
records, but rather is a codification of standards pertaining to the scope of the
power entrusted to the discretion of the district court.” Hastings, 735 F.2d at 1268.
In other words, Rule 6(e) is only “declaratory” of the traditional common-law rule
that the disclosure of grand jury materials is “committed to the discretion of the
trial judge.” Pittsburgh Plate Glass Co., 360 U.S. at 399.
The majority ignores this history and examines Rule 6(e) as if it has no
backdrop. But we read rules “against the entire background of existing customs,
practices, rights, and obligations” already existing in common law and not
expressly displaced by statute. See David L. Shapiro, Continuity and Change in
Statutory Interpretation, 67 N.Y.U. L. REV. 921, 925 (1992); see also Astoria Fed.
Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104, 108 (1991) (recognizing that
“Congress is understood to legislate against a background of common-law . . .
5
The grand jury and grand jury secrecy are components of our English political heritage
that were transplanted into our federal common law. See Douglas Oil Co. of Ca. v. Petrol Stops
Nw., 441 U.S. 211, 218 n.9 (1979).
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principles”). And although district courts’ inherent power may be limited by
statute and rule, we are not permitted to “lightly assume that Congress has intended
to depart from established principles such as the scope of a court’s inherent
power.” Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 630–32 (1962). Thus, to have displaced that
inherent power, Rule 6 would need a “clear[] expression of [that] purpose,” Link,
370 U.S. at 631–32, or for there to be a contradiction between the power and the
rule, see Dietz v. Bouldin, 579 U.S. ____, ____, 136 S. Ct. 1885, 1892 (2016). As
explained below, Rule 6(e) has neither.
B.
In statutory (and rule) interpretation, we are expected to hold tight to
the words of the law. But the majority flouts that command by discerning a
clear expression of exhaustiveness in Rule 6(e) that is not at all evident. The
unambiguous words of Rule 6(e) do not clearly demonstrate an intention to
abrogate courts’ inherent authority to release grand jury materials. Nor do the
words of Rule 6(e) conflict with the exercise of that authority.
Rule 6(e)—entitled “Recording and Disclosing the Proceedings”—
contains three subparts, of which only two are important in this case: 6(e)(2)
(Secrecy) and 6(e)(3) (Exceptions). Rule 6(e)(2)(A) states that “[n]o
obligation of secrecy may be imposed on any person except in accordance
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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 jury.” The rule then lists seven types of persons to which
secrecy applies: grand jurors, interpreters, court reporters, operators of a
recording device, persons who transcribe recorded testimony, attorneys for
the government, and persons to whom disclosure was made under either Rule
6(e)(3)(A)(ii) or (iii). District court judges appear nowhere on this list.
Rule 6(e)(3) provides exceptions to secrecy rules. Subparts (A), (B),
(C), and (D) of that rule describe circumstances in which grand jury materials
may be disclosed without court permission. Subpart (E) describes
circumstances in which courts may authorize disclosure. It says that a “court
may authorize disclosure—at a time, in a manner, and subject to any other
conditions that it directs—of a grand-jury matter” under certain
circumstances. Fed. R. Crim. P. 6(e)(3)(E) (emphasis added). Those
circumstances are
(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;
(iii) at the request of the government, when sought by a
foreign court or prosecutor for use in an official criminal
investigation;
(iv) at the request of the government if it shows that the
matter may disclose a violation of State, Indian tribal, or
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foreign criminal law, as long as the disclosure is to an
appropriate state, state-subdivision, Indian tribal, or
foreign government official for the purpose of enforcing
that law; or
(v) at the request of the government if it shows that the
matter may disclose a violation of military criminal law
under the Uniform Code of Military Justice, as long as the
disclosure is to an appropriate military official for the
purpose of enforcing that law.
Id. Nothing in this language suggests the court’s ability to disclose is restricted to
only these circumstances.
The majority claims that the clause “[u]nless these rules provide
otherwise”—which appears only in Rule 6(e)(2)(B)—applies to all of Rule 6(e)
and is proof of a clear intent to eliminate a court’s inherent power to disclose grand
jury materials in all circumstances except those listed in subpart (e)(3)(E).
Majority Op. at 15–17. That is a strained interpretation. I cannot think of a basis
in statutory interpretation (or any interpretation for that matter) that would allow
the majority to copy the exclusivity requirement from subpart (e)(2)(B)—which
excludes courts and judges from those who are barred from disclosure—and paste
it into subpart (e)(3)(E). See Carlson, 837 F.3d at 764. Nor does the majority
provide any basis in statutory construction for this interpretation.
Instead, the majority says that the “text and structure” of Rule 6(e) support
its interpretation. Majority Op. at 15. But far from offering support for the
majority’s interpretation, the text and structure of the rule undermine it. In fact, the
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text of the rule explicitly prohibits the majority’s interpretation: “No obligation of
secrecy may be imposed on any person except in accordance with Rule
6(e)(2)(B).” Fed. R. Crim. P. 6(e)(2)(A). And, as the Carlson majority noted, the
fact that limiting language exists elsewhere in Rule 6(e), but not in (3)(E), proves
“that its absence in (3)(E) was intentional.” See 837 F.3d at 764. Therefore, the
right reading is the plain one: the unless-these-rules-provide-otherwise limitation in
Rule 6(e)(2)(B) applies only to those listed in (e)(2)(B). Courts and judges are not
listed there, so they are unaffected by that provision.
The majority attempts yet another end run around the plain text. It
concludes that, given the limited role of courts in grand jury proceedings, the
absence of “courts” or “judges” from Rule 6(e)(2)(B) is understandable and “does
not mean that the district court has no secrecy obligations with respect to grand
jury proceedings.” Majority Op. at 22. But that is the right answer to the wrong
question. As explained above, there is no doubt that district courts have secrecy
obligations under common law. See supra at 61. The right question is whether
Rule 6(e)(2)(B) clearly alters district court secrecy obligations so that they are
absolute in all circumstances except those listed in Rule 6(e)(3). In other words,
does Rule 6(e)(2)(B) clearly evince a purpose to eliminate district courts’ inherent
authority over grand jury materials? See Link, 370 U.S. at 631–32. The answer is
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no. Rule 6(e)(2)(B) does not include courts or judges, so they cannot be
constrained by the unless-these-rules-provide-otherwise limitation.
Having stripped the majority’s interpretation of its (e)(2)(B) disguise, our
focus next turns to Rule 6(e)(3)(E), which explains when the court “may authorize
disclosure.” Fed. R. Crim. P. 6(e)(3)(E). That language is plainly permissive.6
“[T]he ‘word’ may . . . implies some degree of discretion.” See Carlson, 837 F.3d
at 765 (citing United States v. Rodgers, 461 U.S. 677, 706 (1983)). And
permissive language does not compel the conclusion that it was the purpose of the
rule to abrogate the courts’ inherent power to disclose grand jury materials. See
Link, 370 U.S. at 630–32. The rule’s text is devoid of terms of exclusivity; it only
specifies some circumstances in which disclosure is authorized. The rule’s drafters
used limiting language in other parts of Rule 6 but omitted such language from the
only part of the rule that discusses courts. We should view that choice as
intentional and not mistaken.
In a sleight of hand, the majority suggests that while the Supreme Court has
not squarely addressed the issue in this case, it “has on several occasions suggested
6
Some of our sister circuits that have considered this issue have come to this same
conclusion. See Carlson, 837 F.3d at 766 (“The text and history of the Rules indicate that Rule
6(e)(3)(E) is permissive, not exclusive, and it does not eliminate the district court’s long-standing
inherent supervisory authority to make decisions as needed to ensure the proper functioning of a
grand jury.”); Craig, 131 F.3d at 102 (“Although, by delimiting the exceptions to grand jury
secrecy, Rule 6(e)(3) governs almost all requests for the release of grand jury records, this court
has recognized that there are certain ‘special circumstances’ in which release of grand jury
records is appropriate even outside of the boundaries of the rule.”).
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that Rule 6(e) is exclusive.” Majority Op. at 17. Yet none of the cases it cites,
either implicitly or explicitly, analyzed the scope of a district court’s inherent
authority to disclose grand jury materials. See Pittsburgh Plate Glass Co., 360
U.S. at 396 (holding that a “trial court did not err in refusing to make . . . grand
jury testimony available to [defendants] for . . . cross-examination”); United States
v. Baggot, 463 U.S. 476, 479 (1983) (holding that disclosure for use in a tax audit
was not “preliminarily to or in connection with a judicial proceeding” within the
meaning of then Rule 6(e)(3)(c)(i), now 6(e)(3)(E)(i)); Williams, 504 U.S. at 55
(holding that a district court may not dismiss an otherwise valid indictment on the
ground that the government failed to disclose substantial exculpatory evidence to
the grand jury).
The majority also complains that this interpretation of Rule 6(e)(3)(E) would
make the enumerated exceptions to Rule 6(e) “merely precatory.” Majority Op. at
18. Quite the contrary. As the Seventh Circuit explained, it is not unreasonable to
infer that the rule’s drafters provided a list of frequent invocations to disclose
grand jury material, “so that the court knows that no special hesitation is necessary
in those circumstances.” See Carlson, 837 F.3d at 765. That inference is far more
reasonable than guessing that the rule’s drafters excluded district court judges from
the list of persons prevented from disclosing grand jury materials, and yet intended
the secrecy requirement to apply to them anyway. Especially given that, as
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explained further below, “exceptions to the secrecy rule generally have developed
through conformance 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,
286 (S.D.N.Y. 1999) (emphasis added).
Moreover, continuing to recognize district courts’ limited inherent authority
to release grand jury materials would not “circumvent or conflict with the Federal
Rules of Criminal Procedure.” See Carlisle v. United States, 517 U.S. 416, 426
(1996). A district court’s decision to disclose grand jury materials in extraordinary
circumstances would not annul any portion of Rule 6, nor could exercising that
authority contradict Rule 6(e)(3)(E)’s permissive language.
For those reasons, it seems plain to me that the rule did not expressly
eliminate courts’ inherent authority to release grand jury materials.
C.
If the text of Rule 6(e) were not clear enough, the history of the rule and the
Advisory Committee Notes also support our instinct in Hastings: Rule 6(e) was
meant to codify—not “ossify”—the common law. 7 See 735 F.2d at 1269. Rule 6
was enacted to “continue[] the traditional practice of secrecy on the part of
members of the grand jury, except when the court permits a disclosure.” Fed. R.
7
“[A]lthough [Advisory Committee Notes] do not foreclose judicial consideration of the
Rule’s validity and meaning, the construction given by the Committee is of weight.” Schiavone
v. Fortune, 477 U.S. 21, 31 (1986) (internal quotation mark omitted).
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Crim. P. 6 advisory committee’s notes to 1944 adoption (emphasis added). In
other words, in the first iteration of the rule, the drafters intended for courts to
maintain their power to disclose grand jury materials “where the ends of justice
require it.” See Socony-Vacuum Oil Co., 310 U.S. at 234. The Advisory
Committee Notes even cite cases that held that district courts have discretion to
relax the rule of secrecy. See Fed. R. Crim. P. 6(e) advisory committee’s notes to
1944 adoption (citing Schmidt v. United States, 115 F.2d 394, 397 (6th Cir. 1940)
(“Logically, the responsibility for relaxing the rule of secrecy and of supervising
any subsequent inquiry should reside in the court, of which the grand jury is a part
and under the general instructions of which it conducted its ‘judicial inquiry.’ It is
a matter which appeals to the discretion of the court when brought to its attention.”
(citations omitted)); United States v. Am. Med. Ass’n, 26 F. Supp. 429, 430 (D.D.C.
1939) (stating that nothing can “release a juror from the oath of secrecy” but “a
court acting in a given case [may do so] when in its judgment the ends of justice so
require”); Atwell v. United States, 162 F. 97, 100–03 (4th Cir. 1908)).
Since the adoption of Rule 6, courts have exercised the authority to order
disclosure in a variety of cases not expressly provided for in the rule. And Rule
6(e) has been frequently amended to conform to “subsequent developments
wrought in decisions of the federal courts” and not vice versa. Hastings, 735 F.2d
at 1268; see Am. Historical Ass’n, 49 F. Supp. 2d at 286; In re Kutler, 800 F. Supp.
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2d 42, 45–46 (D.D.C. 2011). Three examples are instructive. In 1977, the rule
was amended to allow disclosure to government personnel who assist prosecutors
with the grand jury. The Advisory Committee Notes explain that change followed
a trend of cases allowing this kind of disclosure. See Fed. R. Crim. P. 6(e)
advisory committee’s notes to 1977 amendment (citing In re William H. Pflaumer
& Sons, Inc., 53 F.R.D. 464 (E.D. Pa. 1971)). Then, in 1983, the rule was further
amended to allow disclosure to other federal grand juries. The Advisory
Committee Notes explain that “[e]ven absent a specific provision to that effect, the
courts have permitted such disclosure in some circumstances.” See Fed. R. Crim.
P. 6 advisory committee’s notes to 1983 amendment (citing Socony-Vacuum Oil
Co., 310 U.S. at 150; United States v. Garcia, 420 F.2d 309 (2d Cir. 1970)).
Finally, in 1985, the rule was amended to allow disclosure to state and local
government employees, following the example in In re 1979 Grand Jury
Proceedings, 479 F. Supp. 93 (E.D.N.Y. 1979). See Fed. R. Crim. P. 6 advisory
committee’s notes to 1985 amendment.
This amendment history underscores that Rule 6(e) was never intended to
“strictly confine[]” the instances in which disclosure of grand jury materials is
appropriate. Hastings, 735 F.2d at 1268; see id. at 1269; Carlson, 837 F.3d at 765.
This history demonstrates that the Advisory Committee accepted and adopted these
subsequent developments by adding them to the existing list of exceptions. Had
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the rule eliminated courts’ inherent power to disclose grand jury material beyond
the enumerated exceptions, the Advisory Committee would have amended the rule
and included a clear expression of that intent.
A recent Advisory Committee action supports this viewpoint. In 2012, the
Advisory Committee considered the exact question at issue in this case and
reaffirmed that Rule 6(e) is permissive and not exhaustive.8 In 2011, the
Department of Justice proposed an amendment to Rule 6(e) that would have
“allow[ed] district courts to permit the disclosure, in appropriate circumstances, of
archival grand-jury materials of great historical significance.” See Advisory
Comm. On Crim. Rules, Agenda Book 217 (Apr. 2012); see generally id. at 209–
271. The Department even put forward the same hobbled argument the majority
has: “federal courts have no inherent authority to develop rules that circumvent or
conflict with the Federal Rules,” and the courts that had applied “historical
significance exception[s] to Rule 6(e) threaten[ed] to undermine” the rule. Id. at
217. But the Advisory Committee rejected the proposal because it viewed it as
unnecessary. The Committee explained, that “in the rare cases where disclosure of
historically significant materials had been sought, district judges had reasonably
8
The majority rightly acknowledges that Advisory Committee minutes are different from
Advisory Committee Notes and the text of the rule itself, and they cannot be given much weight.
I rely on these minutes only to the extent that they demonstrate that learned minds—namely,
judges and other legal professionals—also recognize that the inherent authority of district courts
to relax grand jury secrecy is unaltered by Rule 6(e).
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resolved applications by reference to their inherent authority.” Advisory Comm.
on Crim. Rules, Minutes 7 (Apr. 2012).
* * *
In sum, the majority’s view is anti-textual and anti-historical. The text and
history of the Rules support the conclusion that Rule 6(e)(3)(E) was not intended to
abrogate courts’ inherent power to disclose grand jury materials, as the rule
remains subject to the common law that preceded it. See Hastings, 735 F.2d at
1268. Without a clear expression of the desire to displace courts’ inherent power
to disclose grand jury materials, the reasonable interpretation of the rule is a
permissive one: Rule 6(e) was intended to codify traditional law, not ossify it. See
id. at 1269. And the exercise of the inherent power to disclose grand jury materials
does not conflict with the rule.
III.
Because the district court had the inherent authority to disclose grand jury
materials, I would affirm its decision that the facts in this case present exceptional
circumstances justifying the exercise of that authority.9
9
I have provided only an abridged analysis of this issue here. For a fuller analysis,
including a detailed discussion of the Craig factors, see Pitch v. United States, 915 F.3d 704,
709–13 (11th Cir. 2019), reh’g en banc granted and opinion vacated, 925 F.3d 1224 (11th Cir.
2019).
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“[W]hile district courts have inherent authority to act outside Rule 6(e)(3),
any inherent disclosure authority is exceedingly narrow.” Aisenberg, 358 F.3d at
1347. “[C]ourts are not empowered to act outside Rule 6(e) in other than
exceptional circumstances consonant with the rule’s policy and spirit.” Hastings,
735 F.2d at 1269 (emphasis added). Exceptional circumstances exist when the
need for disclosure outweighs the public interest in continued secrecy. See id. at
1272–73 (quoting Douglas Oil, 441 U.S. at 223 (“[T]he court’s duty in a case of
this kind is to weigh carefully the competing interests in light of the relevant
circumstances and standards announced by this Court.”)); id. at 1275. And in the
proper circumstances, grand jury records on a matter of exceptional historical
significance may trigger a district court’s inherent authority to disclose them. See
Craig, 131 F.3d at 106 (outlining a “non-exhaustive list of factors that a trial court
might want to consider when confronted with these highly discretionary and fact-
sensitive” motions).
Here, the district judge appropriately recognized that the Pitch petition was
not a run-of-the-mill Rule 6 petition. The records are more than 70 years old.
There are no surviving witnesses or grand jurors. And no one disagrees that the
Moore’s Ford Lynching is an exceptional historical event, tied to the Civil Rights
Movement. For nearly 100 years, mass lynchings were the dual-purpose weapon
of the Klan’s war for white supremacy: they served to both eradicate large numbers
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of African Americans and terrorize generations more. Punctuating that century of
terror, the Moore’s Ford mass lynching is thought to be the last in our history. Of
course, given the importance of grand jury secrecy, the burden on the petitioner is
high in cases like these. It takes an event so profound in our country’s dark past—
so demanding of deep study and thought—to overcome that burden. After
balancing the competing interests, it seems obvious to me that this case would
meet that burden and that disclosure outweighs the interest in continued secrecy.
* * *
To conclude, I would maintain our Circuit’s precedent that district courts
have an inherent power to disclose grand jury materials. That power is limited and
should be invoked advisedly. That was done here, and so I would affirm.
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ROSENBAUM, Circuit Judge, dissenting:
I agree that the Majority Opinion’s reading of Rule 6(e)(2) is the most natural
one: Rule 6(e)(2) sets forth a general rule of secrecy, and Rule 6(e)(3) provides the
only exceptions to that rule. Maj. Op. at 15–16. But a major problem with that
interpretation precludes it from being the correct one: we know for a fact that
Congress itself—which, of course, is the branch that adopted Rule 6—does not agree
with it. In fact, Congress has enacted recent legislation that depends for its
operability on construing Rule 6(e) not to abrogate the courts’ common-law inherent
power to authorize release of grand-jury materials when appropriate, even in the
absence of an articulated exception under Rule 6(e). The Majority Opinion has no
answer to this problem.
To show why Rule 6(e) necessarily preserves the courts’ common-law
inherent authority to permit release of grand-jury materials, Section I of this dissent
briefly reviews the origins of Rule 6(e)—the common law. Section II.A then
demonstrates that Congress, in legislating against this common-law background,
necessarily and undoubtedly retained courts’ common-law inherent power to
authorize release of grand-jury materials, even in the absence of an express
exception to Rule 6(e). 1 As proof of this fact, I explain how the viability of a 2018
1
Judge Wilson and some of our sister Circuits have reached this same ultimate conclusion
that Rule 6(e) preserves courts’ common-law inherent power to authorize release of grand-jury
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law depends on this construction of Rule 6(e). Section II.B shows that, in contrast
to the Majority Opinion’s unsupported view to the contrary, Supreme Court
precedent forcefully validates the conclusion that where, as here, the efficacy of a
later Congress’s legislative enactment necessarily depends on that later Congress’s
plausible construction of an earlier law, it is entitled to deference. Finally, Section
III establishes that Congress’s reading of its own enactment is consistent with
Supreme Court precedent.
I.
Judge Wilson’s dissent ably reviews courts’ traditional supervisory power
over grand juries, so I do not cover that again here, see Wilson Dissent at 59–63 &
n.5, except to emphasize that before Rule 6(e)’s enactment, courts had the power to
disclose grand-jury materials when appropriate. The Majority Opinion does not
dispute this fact.
That common-law historical background, see Douglas Oil Co. of Cal. v.
Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979), is crucial to our interpretation of
Rule 6(e) because “Congress is understood to legislate against a background of
common-law principles.” Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010)
(quoting Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991))
materials outside the specified exceptions to Rule 6(e). See Carlson v. United States, 837 F.3d
753, 766–67 (7th Cir. 2016); In re Petition of Craig, 131 F.3d 99, 102–03 (2d Cir. 1997).
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(quotation marks and ellipses omitted). And when a statute “covers an issue
previously governed by the common law, we interpret the statute with the
presumption that Congress intended to retain the substance of the common law.” Id.
(citing Isbrandtsen Co., Inc. v. Johnson, 343 U.S. 779, 783 (1952)).
As Judge Wilson explains, under the common law, courts always had the
inherent authority to permit the breach of grand-jury secrecy when circumstances so
required. And since Rule 6(e) was intended to “codif[y] the traditional rule of grand
jury secrecy,” see United States v. Sells Eng’g, Inc., 463 U.S. 418, 425 (1983), we
cannot lightly conclude that Rule 6(e) jettisoned that common-law inherent
authority. See United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 233–34
(1940). To the contrary, we must keep this historical background in mind when we
consider the meaning of Rule 6(e).
II.
A.
That brings me to a review of Congress’s understanding of Rule 6(e). Despite
the attraction of Rule 6’s most natural reading, that construction does not control our
decision here, where “a clearly expressed legislative intention to the contrary” exists.
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
We do not have to wonder whether Congress intended Rule 6(e) to preserve courts’
common-law-based inherent authority to permit the disclosure of grand-jury records;
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we know that Congress understands Rule 6(e) to do just that. That’s because less
than two years ago, it enacted the Civil Rights Cold Case Records Collection Act of
2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019) (codified at 44 U.S.C. § 2107)
(the “Cold Case Act”). And as the Majority Opinion does not deny, see Maj. Op. at
30 n.14, a significant chunk of that Act can function only if Rule 6(e) preserves
courts’ inherent authority to allow the release of grand-jury materials.
The Cold Case Act is a vital tool in trying to bring at least some form of
closure to a deplorable chapter in our history—that of violence against racial
minorities. Broadly described, the law requires the Archivist of the United States to
establish and disclose to the public a collection of records relating to unsolved civil-
rights cases that arose from January 1, 1940, through December 31, 1979. See Pub.
L. No. 115-426 at §§ 2(1)–(3), 3(a)–(b). The Senate committee that recommended
passage of the law noted that the records are “valuable for researchers, journalists,
historians, and those interested in solving these unsolved crimes,” and that “public
disclosure of information may actually increase the likelihood of enforcement by
crowdsourcing the materials.” Civil Rights Cold Case Records Collection Act of
2018: Report of the Committee on Homeland Security and Governmental Affairs, S.
Rep. No. 115-424, 115th Cong., 2d Sess. 2 (2018) (“Senate Rpt.”).
To allow for a deeper understanding of the covered civil-rights cases, the Cold
Case Act creates a multi-step mechanism for the United States Attorney General to
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seek court-authorized release of grand-jury materials to the public. As relevant here,
under that process, the Attorney General can petition the relevant court for the
disclosure of the grand-jury records. See Pub. L. No. 115-426 at § 8(a). Then, the
court determines whether the requested materials should be released.
But here’s the part that’s important for our analysis of Rule 6(e): significantly,
the Cold Case Act is not a freestanding grant of authority—separate and apart from
Rule 6(e)—to the courts to authorize the release of grand-jury materials. Rather, the
Act expressly anticipates that a court will be able to authorize the disclosure of any
covered grand-jury records through only the Rule 6 mechanism.
In this respect, the statute specifies that “[a] request for disclosure of civil
rights cold case records under this Act shall be deemed to constitute a showing of
particularized need under rule 6 of the Federal Rules of Criminal Procedure.” Id.
at § 8(a)(2)(B) (emphasis added). Not only does the statute expressly invoke only
Rule 6 as the mechanism under which the Attorney General can seek to obtain
disclosure of grand-jury materials, but the reference to “particularized need” is also
significant. That is the standard the Supreme Court has articulated for determining
when a court may authorize release of grand-jury materials under Rule 6(e).2
2
The Majority Opinion correctly notes that disclosures made under Rule 6(e)(3)(A)–(D)
may occur without court approval. Maj. Op. at 14–15. But for two reasons, these exceptions
clearly do not authorize disclosure of the grand-jury records sought under the Cold Case Act. First,
the Cold Case Act requires the Attorney General to petition a court in the United States for the
release of grand-jury materials. See Pub. L. No. 115-426 at § 8(a)(2)(A). So it cannot be the case
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Rule 6(e)(3)(E) sets forth Rule 6(e)’s articulated exceptions under which a
court may authorize release of grand-jury materials. Yet it is not enough for a party
seeking disclosure to point to an exception under Rule 6(e)(3)(E); rather, movants
must also “show that the material they seek is needed to avoid a possible injustice in
another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that their request is structured to cover only material so
needed.” Douglas Oil, 441 U.S. at 222; see Sells Eng’g, 463 U.S. at 443 (“We have
consistently construed the Rule, however, to require a strong showing of
particularized need for grand jury materials before any disclosure will be
permitted.”) (emphasis added) (citations omitted).
We must presume that Congress deliberately used the term “particularized
need.” As the Supreme Court has explained, “if a word is obviously transplanted
from another legal source . . . it brings the old soil with it.” Evans v. United States,
504 U.S. 255, 260 n.3 (1992)) (quoting Frankfurter, Some Reflections on the Reading
of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). Indeed, “[a]ny word or phrase that
comes before a court for interpretation is . . . . part of an entire corpus juris. So, if
possible, it should no more be interpreted to clash with the rest of that corpus than it
that any of these self-executing exceptions in Rule 6(e)(3)(A)–(D) authorize disclosure under the
Act. And second, even the most cursory review of these exceptions—which permit disclosure for
law-enforcement purposes to other government attorneys or personnel assisting government
attorneys (Rule 6(e)(3)(A)(i)–(iii)), to a separate grand jury (Rule 6(e)(3)(C)), or in limited
circumstances to foreign intelligence officials (Rule 6(e)(3)(D))—reveals that, by their terms, they
do not authorize disclosure of grand-jury materials to the general public.
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should be interpreted to clash with other provisions of the same law.” Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 39, at 252
(2012); cf. Holloway v. United States, 526 U.S. 1, 9 (1999) (recognizing that “it is
reasonable to presume that Congress was familiar with the cases and the scholarly
writing” concerning its laws) (citing Cannon v. University of Chicago, 441 U.S. 677,
696–68 (1979)). So rather than creating a new exception, the plain language of
Section 8(a)(2)(B) of the Cold Case Act requires courts considering Cold Case Act
requests from the Attorney General to act under only Rule 6(e).
But significantly, when we look at the specific exceptions Rule 6(e) authorizes
for a court to allow disclosure, we readily find that not a single one permits a court
to authorize the Attorney General’s disclosure of grand-jury materials to the public.
To show why that is so, I review the articulated exceptions.
Rule 6(e)(3)(E)(i) permits the disclosure of materials “preliminarily to or in
connection with a judicial proceeding.” As the Supreme Court has explained, under
this exception to Rule 6(e), “it is not enough to show that some litigation may emerge
from the matter in which the material is to be used, or even that litigation is factually
likely to emerge.” United States v. Baggot, 463 U.S. 476, 480 (1983). Rather, “[t]he
focus is on the actual use to be made of the material. If the primary purpose of
disclosure is not to assist in preparation or conduct of a judicial proceeding,
disclosure under [this exception] is not permitted.” Id.
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In contrast, the primary purpose of the Cold Case Act is to provide public
access to the records of the covered cold cases, for educational, historical, and
scholarly uses. Perhaps in a rare case, the public’s research into the released
materials may yield enough evidence to allow a governmental agency to reopen a
cold case if it desires to do so and not all suspects are dead. But even accounting for
that exceptional circumstance, the primary purpose of the Cold Case Act is, most
certainly, not to assist in preparation or conduct of a judicial proceeding. Indeed, a
covered civil-rights case from the 1940-1979 period is subject to the Act for the very
reason that the Attorney General has no promising leads that would suffice to
identify and indict a living potential defendant. So this exception has no bearing
here.
Next, Rule 6(e)(3)(E)(ii) allows for breach of grand-jury secrecy that comes
“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.” Under the Cold
Case Act, though, the Attorney General—not an indicted defendant—is the one
authorized to request disclosure of the grand-jury materials. Besides, a defendant
obtains the grand-jury materials under this exception for the purpose of seeking to
dismiss his indictment, not to release them to the public. So this exception has no
bearing here.
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Rule 6(e)(3)(E)(iii) authorizes disclosure of grand-jury records “at the request
of the government, when sought by a foreign court or prosecutor for use in an official
criminal investigation.” But while the materials the Attorney General asks for under
the Cold Case Act are at the request of the government, she does not seek them for
Rule 6(e)(3)(iii)’s required purpose—that is, because they are “sought by a foreign
court or prosecutor for use in an official criminal investigation.” Cf. Baggot, 463
U.S. at 480. This exception also does not authorize release to the Attorney General
for disclosure to the general public. So this exception has no bearing here.
Like Rule 6(e)(3)(E)(iii), Rule 6(e)(3)(E)(iv) permits disclosure at the
government’s request, but this time, only if the government “shows that the matter
may disclose a violation of State, Indian tribal, or foreign criminal law, as long as
the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign
government official for the purpose of enforcing that law.” Again, though, the
exception does not authorize disclosure by the government to the general public, as
the Cold Case Act requires. And on top of that, release of records under the Cold
Case Act is not “for the purpose of enforcing [state, Indian tribal, or foreign criminal
law].” Cf. Baggot, 463 U.S. at 480. So this exception has no bearing here.
Finally, Rule 6(e)(3)(E)(v) allows for disclosure “at the request of the
government if it shows that the matter may disclose a violation of military criminal
law under the Uniform Code of Military Justice, as long as the disclosure is to an
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appropriate military official for the purpose of enforcing that law.” Once again, the
exception does not authorize disclosure by the government to the general public, as
the Cold Case Act requires. Nor is release of records under the Cold Case Act “for
the purpose of enforcing [military criminal law under the Uniform Code of Military
Justice].” Cf. Baggot, 463 U.S. at 480. So this exception has no bearing here.
That’s it. We’re fresh out of Rule 6(e)(3)(E) specified exceptions. And just
to avoid any doubt, I note that Rule 6(e) also does not authorize disclosure merely
upon a showing of “particularized need.”
So how under Rule 6(e) did Congress expect a court to authorize the Attorney
General’s disclosure of cold-case-civil-rights grand-jury materials? Obviously, it
construed Rule 6(e) to somehow endow courts with that authority. Otherwise, we
would have to assume that Congress enacted the grand-jury-records-release
mechanism of the Cold Case Act knowing that it would be an exercise in futility.
That can’t be right. Indeed, “one of the most basic interpretive canons” requires us
to construe a statute “so that effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant.” Corley v. United States, 556
U.S. 303, 314 (2009) (citation and quotation marks omitted).
Then why did Congress view Rule 6(e) to permit courts to authorize the
Attorney General’s release of cold-case-civil-rights grand-jury materials to the
public? There’s only one possible answer: Congress construed Rule 6(e) to
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maintain from the common-law tradition the inherent authority of courts to release
grand-jury materials upon an appropriate showing—that of “particularized need.”
B.
As I have noted, the Majority Opinion does not deny this. Rather, it fudges a
bit, acknowledging only that under the Majority Opinion’s construction of Rule 6(e),
“Rule 6(e) does not clearly permit the release of civil rights cold case [grand-jury]
records.” Maj. Op. at 30 n.14.
That is quite an understatement of the problem with the Majority Opinion’s
interpretation of Rule 6(e): Rule 6(e)’s express exceptions neither clearly nor
unclearly permit the release of Cold Case Act grand-jury materials. They simply
don’t allow the disclosure of Cold Case grand-jury materials at all. Even the
Majority Opinion does not try to explain how, under its view of Rule 6(e), the grand-
jury-release provisions of the Cold Case Act can be operable—even in an unclear
way. And no wonder—there is no way.
Because the Majority Opinion cannot deny that the Cold Case Act proves that
Congress construes Rule 6(e) to retain courts’ common-law inherent power to
authorize disclosure of grand-jury materials outside of rule 6(e)’s enumerated
exceptions, it is reduced to arguing that we should simply ignore Congress’s
interpretation of Rule 6(e) because Congress revealed it in the Cold Case Act. Not
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only does this interpretation contradict Supreme Court precedent, but it also defies
logic.
The Supreme Court has long held that “subsequent legislation declaring the
intent of an earlier statute is entitled to great weight in statutory construction.”
Loving v. United States, 517 U.S. 748, 770 (1996) (cleaned up and citations omitted);
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 n.8 (1969) (describing this
proposition as a “venerable” principle and citing in support Alexander v. Mayor &
Commonalty of Alexandria, 9 U.S. 1 (1809); United States v. Freeman, 44 U.S. 556
(1845); Stockdale v. Ins. Cos., 87 U.S. 323 (1874)). The Majority Opinion tries to
escape this “venerable” principle by contending that “the Cold Case Act does not
declare anything about the meaning of Rule 6(e),” since it does not expressly
mention Rule 6(e) in its text (other than to require the Attorney General to obtain
grand-jury materials from the courts through the Rule 6(e) process). Maj. Op. at 30
n.14.
But Supreme Court precedent shows that Congress can declare its intent
expressly or implicitly. See Almendarez-Torres v. United States, 523 U.S. 224, 237
(1998). As the Majority Opinion correctly observes, Congress can, for example,
state in later legislation what the earlier law “mean[s],” id. (citing Fed. Hous. Admin.
v. Darlington, Inc., 358 U.S. 84, 90 (1958)), or it may “seek to clarify an earlier
enacted general term.” Id. (citing Red Lion, 395 U.S. at 380–81).
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But just as effectively, Congress can express its intent through implicit means,
such as by enacting a law that “depend[s] for [its] effectiveness upon clarification
… of an earlier statute.” Id. (citing Seatrain Shipbuilding Corp. v. Shell Oil Co., 444
U.S. 572, 595–96 (1980)); see also Loving, 517 U.S. at 770. This is so because a
later statute that relies for operability on a particular construction of an earlier law
“is either a legislative exposition of a power formerly granted, or the grant of a new
power.” Alexander, 9 U.S. at 8; see also Freeman, 44 U.S. at 564– 65 (“[I]f it can
be gathered from a subsequent statute in pari materia, what meaning the legislature
attached to the words of a former statute, they will amount to a legislative declaration
of its meaning, and will govern the construction of the first statute.”); see also Scalia
& Garner, Reading Law § 39, at 252 (“Several acts in pari materia, and relating to
the same subject, are to be taken together, and compared in the construction of them,
because they are considered as having one object in view, and as acting upon one
system.”) (citation and quotation marks omitted).
This makes perfect sense. “With respect to subsequent legislation[,] . . .
Congress has proceeded formally through the legislative process.” South Carolina
v. Regan, 465 U.S. 367, 378 n.17 (1984) (cleaned up and citations omitted). And if
Congress had enough votes to pass legislation that depends for its efficacy on a
particular plausible interpretation of an earlier law, it by definition had enough votes
to enact legislation that expressly adopts the necessary construction of the earlier
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law. 3 That it did not do so proves only that it had no reason to believe that, in the
future (and in violation of separation-of-powers principles), we would insist on
imposing our own opposing construction of the earlier law, even though that
interpretation would render Congress’s most recent enactment nonfunctional.
Otherwise, we would have to believe that Congress went to the trouble of enacting
the grand-jury provisions of the Cold Case Act knowing full well that they could
never function. That would make about as much sense as concrete life preservers.
Yet the Majority Opinion simply dismisses the fact that the Cold Case Act’s
grand-jury-records-release provisions are inoperable under its interpretation of Rule
6(e), arguing that “the Cold Case Act on its face says nothing about the meaning of
Rule 6(e).” Maj. Op. at 31 n.14 (emphasis added). This argument completely
3
So if Congress did believe that Rule 6 stripped courts of inherent authority to authorize
the release of grand-jury materials, it could have changed the rule to accommodate the Cold Case
Act. Indeed, Congress substantively amended Rule 6 as recently as 2011 to “allow[] a judge to
take a grand jury return by video teleconference.” Fed. R. Crim. P. 6 advisory committee’s note
to 2011 amendments. Nothing prevented it from again amending it in 2018, to enable the
operability of the Cold Case Act, if it had construed Rule 6(e) not to have preserved courts’
inherent authority. After all, it made changes to several other Federal Rules of Criminal Procedure
that year. For example, Rule 12.4 (“Disclosure Statement”) was amended in 2018 to specify the
deadline for filing a Rule 12.4(a) statement and to allow the government to “show[] good cause”
for why it need not file a statement identifying any organization victim of an alleged criminal
activity. See Fed. R. Crim. P. 12.4 advisory committee’s note to 2018 amendments. Likewise,
Congress made multiple changes to Rule 49 (“Serving and Filing Papers”), including introducing
subsections (a)(3) and (a)(4) that list the permissible means of service. See Fed. R. Crim. P. 49
advisory committee’s note to 2018 amendments. And Rule 45 (“Computing and Extending
Time”) was amended to reflect the revisions to Rule 49. See Fed. R. Crim. P. 45 advisory
committee’s note to 2018 amendments. That Congress did not amend Rule 6(e) when it enacted
the Cold Case Act, which depends for functionality on the construction of Rule 6(e) that recognizes
courts’ continuing inherent power to order release of grand-jury records outside an articulated
exception, therefore demonstrates that Congress did not need to do so, since Rule 6(e) already
included courts’ inherent authority to release grand-jury materials.
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ignores the Supreme Court precedent I have reviewed above, which holds that a later
Congress’s legislation that relies for its efficacy on a particular plausible
interpretation of an earlier Congress’s law necessarily declares the meaning of the
earlier law—even if it does not do so explicitly. And the Majority Opinion brushes
aside this principle that the Supreme Court has relied on without exception for more
than two-hundred years, without so much as citing a single authority supporting its
position. See Maj. Op. at 30–31 n.14. This sinks the Majority Opinion faster than
the concrete life preserver its analysis would saddle onto the Cold Case Act.
We must always keep in mind that construing a statute or rule is not an
academic exercise; our aim is to read it as Congress intended. After all, Congress,
not the Judiciary, holds the legislative power. Often, it is hard to know precisely
what congressional intent was, so we rely on the most natural interpretation of the
text. That rule generally makes sense. But where, as here, congressional
construction of the rule we are interpreting is objectively and undeniably
determinable from another legislative enactment and is consistent with the common-
law background against which the rule was adopted, we have no business imposing
our own conflicting interpretation of the rule—especially when doing so invalidates
portions of another law and violates more than two-hundred years of Supreme Court
precedent.
III.
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This conclusion is, of course, at odds with the Majority Opinion’s assertion
that the Supreme Court “has on several occasions suggested that Rule 6(e) is
exclusive.” Maj. Op. at 17. Respectfully, I believe the Majority Opinion has it
wrong.
Consider Sells Engineering, which the Majority Opinion cites. The Supreme
Court’s language in that case suggests the Court reached the same conclusion that I
have, which is that Rule 6(e) imports the common-law tradition of courts’ inherent
power to authorize disclosure. There, after reiterating the critical importance of
grand-jury secrecy, the Court explained that “[i]n the absence of a clear indication
in a statute or Rule, we must always be reluctant to conclude that a breach of this
secrecy has been authorized.” Sells Eng’g, 463 U.S. at 425 (citation omitted).
Significantly, the Court used the term “reluctant” to describe the approach a
court should take in evaluating whether to authorize a breach of grand-jury secrecy
not “clear[ly] indicat[ed] in a statute or Rule.” In other words, while the general rule
requires that a court permit only expressly authorized disclosures, rare exceptions
are sometimes appropriate. If that were not the case, the Supreme Court would have
simply said that “in the absence of a clear indication in a statute or Rule, we must
conclude that a breach of this secrecy has not been authorized.” That it instead only
cautioned “reluctan[ce]” in finding authorization to release grand-jury materials in
the absence of an express exception implicitly acknowledges the continuing
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authority of courts to go beyond the enumerated exceptions in Rule 6(e)(3) in at least
some—albeit quite rare—circumstances.
The other cases that the Majority Opinion relies on fare no better. The
Majority Opinion invokes Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395,
398 (1959), for the proposition that “any disclosure of grand jury minutes is covered
by [Rule] 6(e).” Maj. Op. at 17. But significantly, the Supreme Court made this
statement in the context of determining that release of grand-jury testimony of a trial
witness was governed ultimately by Rule 6(e), not by Jencks v. United States, 353
U.S. 657 (1957). It neither had reason to opine nor did it opine on whether Rule
6(e)’s listed exceptions are exclusive when Rule 6 controls a potential disclosure.
The Majority Opinion’s reliance on the Supreme Court’s statement in Baggot,
463 U.S. at 479, that Rule 6(e)’s exception for release of grand-jury materials
“preliminarily to or in connection with a judicial proceeding” “is, on its face, an
affirmative limitation on the availability of court-ordered disclosure of grand jury
materials,” is similarly misplaced. Maj. Op. at 17–18. In Baggot, the Supreme Court
was interpreting the “preliminarily to or in connection with a judicial proceeding”
exception to Rule 6(e). At the outset of its analysis, the Court made the statement
the Majority Opinion invokes. In context, it is clear that the Court was simply
identifying the provision it was analyzing—a provision that each party agreed was
the relevant one and argued the terms of which supported its position. So as in
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Pittsburgh Plate Glass, the Court had no reason to consider—and did not in fact
consider—whether Rule 6(e)’s listed exceptions are exclusive when Rule 6 controls
a potential disclosure.
Finally, the Majority Opinion points to United States v. Williams, 504 U.S. 36
(1992), for the proposition that Rule 6(e) “plac[es] strict controls on disclosure of
matters occurring before the grand jury.” Maj. Op. at 18 (citing id. at 46 n.6)
(cleaned up). Williams wasn’t even about disclosure of grand-jury information at
all. Rather, the question there concerned whether a district court had the power to
dismiss an otherwise-valid indictment because the government did not disclose to
the grand jury “substantial exculpatory evidence” in its possession. Williams, 504
U.S. at 37–38.
In concluding courts do not enjoy that authority, the Court gave examples of
the circumstances under which a court may rely on its supervisory power to dismiss
an indictment, specifically referring to situations where the government has violated
certain rules created “to ensure the integrity of the grand jury’s functions.” Id. at 46.
In a footnote, it listed several such rules. One of those listed was Rule 6(e), described
in passing in the terms the Majority Opinion quotes. Id. at 46 n.6. In context, it is
clear that the Court was not referring to aspects of Rule 6(e) that address the courts’
authority to permit release of grand-jury materials but rather to the parts of Rule 6(e)
that allow release of grand-jury materials without the courts’ authorization. And in
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any case, at no time in Williams did the court evaluate—or have any reason to
evaluate—whether Rule 6(e)’s listed exceptions are exclusive.
Thus, Supreme Court precedent does not “suggest[] that Rule 6(e) is
exclusive.” Maj. Op. at 17. If anything, it supports the opposite conclusion.
IV.
In short, we don’t have to guess whether Congress intended to maintain
courts’ common-law inherent power to authorize release of grand-jury materials in
appropriate circumstances. We know indisputably that it did. Otherwise, we must
accept that Congress created the grand-jury-records-release mechanism of the Cold
Case Act knowing that no way to utilize that provision exists. That would be
nonsensical. When, as here, a later Congress’s statutory enactment depends for its
efficacy on a particular plausible interpretation of an earlier law, that later
Congress’s interpretation is entitled, under longstanding Supreme Court precedent,
to “great weight.” Loving, 517 U.S. at 770 (cleaned up and citations omitted). And
well it should be, in line with the proper roles of the Legislative and Judicial
branches. The Majority Opinion offers no answer to this sturdy principle. Because
the Majority Opinion does not defer to Congress’s plausible legislative interpretation
of Rule 6(e), I respectfully dissent.
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