Stuart McKeever v. William Barr

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2018 Decided April 5, 2019
No. 17-5149
STUART A. MCKEEVER,
APPELLANT
v.
WILLIAM P. BARR, ATTORNEY GENERAL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-mc-00054)
Graham E. Phillips, appointed by the court, argued the
cause for appellant as amicus curiae in support of appellant.
With him on the briefs were Roman Martinez and Nathanael
D.S.R. Porembka, appointed by the court.
Stuart A. McKeever, pro se, was on the brief for appellant.
Amir C. Tayrani was on the brief for amicus curiae Legal
Scholars in support of appellant.
Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Jessie
K. Liu, U.S. Attorney, and Michael S. Raab and Mark R.
2
Freeman, Attorneys. Elizabeth J. Shapiro, Attorney, entered
an appearance.
Before: SRINIVASAN and KATSAS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Dissenting opinion filed by Circuit Judge SRINIVASAN.
GINSBURG, Senior Circuit Judge: Historian Stuart A.
McKeever appeals an order of the district court denying his
petition to release grand jury records from the 1957 indictment
of a former agent of the Federal Bureau of Investigation, which
McKeever sought in the course of his research for a book he is
writing. The district court, lacking positive authority, asserted
it has inherent authority to disclose historically significant
grand jury matters but denied McKeever’s request as
overbroad. On appeal, the Government argues the district court
does not have the inherent authority it claims but rather is
limited to the exceptions to grand jury secrecy listed in Federal
Rule of Criminal Procedure 6(e).
We agree with the Government. Accordingly, we affirm
the order of the district court denying McKeever’s petition for
the release of grand jury matters.
I. Background
In 1956 Columbia University Professor Jesús de Galíndez
Suárez disappeared from New York City. News media at the
time believed Galíndez, a critic of the regime of Dominican
Republic dictator Rafael Trujillo, was kidnapped and flown to
3
the Dominican Republic and there murdered by Trujillo’s
agents. Witness Tells of Galindez Pilot’s Death, N.Y. TIMES
(Apr. 6, 1964); Dwight D. Eisenhower, The President’s News
Conference of April 25, 1956, in Public Papers of the
Presidents of the United States 440–41 (1956). To this day, the
details of Galíndez’s disappearance remain a mystery.
Stuart McKeever has been researching and writing about
the disappearance of Professor Galíndez since 1980. In 2013
McKeever petitioned the district court for the “release of grand
jury records in the Frank case,” referring to the 1957
investigation and indictment of John Joseph Frank, a former
FBI agent and CIA lawyer who later worked for Trujillo, and
who McKeever believed was behind Galíndez’s disappearance.
The grand jury indicted Frank for charges related to his failure
to register as a foreign agent pursuant to the Foreign Agents
Registration Act of 1938 but never indicted him for any
involvement in Galíndez’s murder. See Frank v. United States,
262 F.2d 695, 696 (D.C. Cir. 1958).
The district court asserted it has “inherent supervisory
authority” to disclose grand jury matters that are historically
significant, but nevertheless denied McKeever’s request after
applying the multifactor test set out In re Craig, 131 F.3d 99,
106 (2d Cir. 1997). Although several of the nine non-
exhaustive factors favored disclosure, the district court read
McKeever’s petition as seeking release of all the grand jury
“testimony and records in the Frank case,” which it held was
overbroad. McKeever duly appealed. 1
1
McKeever appeared pro se in the district court but on appeal has
been ably assisted by a court-appointed amicus curiae.
4
We review de novo the district court’s assertion of inherent
authority to disclose what we assume are historically
significant grand jury matters. Cf. United States v. Doe, 934
F.2d 353, 356 (D.C. Cir. 1991). Because we hold the district
court has no such authority, we need not determine whether it
abused its discretion in denying McKeever’s petition as
overbroad. 2
II. Analysis
The Supreme Court has long maintained that “the proper
functioning of our grand jury system depends upon the secrecy
of grand jury proceedings.” Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211, 218 (1979). That secrecy safeguards
vital interests in (1) preserving the willingness and candor of
witnesses called before the grand jury; (2) not alerting the
target of an investigation who might otherwise flee or interfere
with the grand jury; and (3) preserving the rights of a suspect
who might later be exonerated. Id. at 219. To protect these
important interests,
[b]oth the Congress and [the Supreme] Court have
consistently stood ready to defend [grand jury secrecy]
against unwarranted intrusion. In the absence of a clear
indication in a statute or Rule, we must always be
2
Although the records at issue here were transferred from the
Department of Justice to the National Archives, we understand the
DOJ has legal control over them. See FED. R. CRIM. P. 6(e)(1)
(“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”). An order directing the
Attorney General to release the records would, therefore, redress
McKeever’s alleged injury.
5
reluctant to conclude that a breach of this secrecy has
been authorized.
United States v. Sells Engineering, Inc., 463 U.S. 418, 425
(1983).
As we have said before, Federal Rule of Criminal
Procedure 6(e) “makes quite clear that disclosure of matters
occurring before the grand jury is the exception and not the
rule” and “sets forth in precise terms to whom, under what
circumstances and on what conditions grand jury information
may be disclosed.” Fund of Constitutional Gov’t v. Nat’l
Archives & Records Serv., 656 F.2d 856, 868 (D.C. Cir. 1981).
The full text of Rule 6(e) is reproduced in the Appendix. Of
particular relevance here, Rule 6(e)(2)(B) sets out the general
rule of grand jury secrecy and provides a list of “persons” who
“must not disclose a matter occurring before the grand jury”
“[u]nless these rules provide otherwise.” Rule 6(e)(3) then sets
forth a detailed list of “exceptions” to grand jury secrecy,
including in subparagraph (E) five circumstances in which a
“court may authorize disclosure ... of a grand-jury matter.” As
McKeever does not claim his request comes within any
exception, the question before us is whether the list of
exceptions is exhaustive, as the Government argues.
We agree with the Government’s understanding of the
Rule. Rule 6(e)(2)(B) instructs that persons bound by grand
jury secrecy must not make any disclosures about grand jury
matters “[u]nless these rules provide otherwise.” The only rule
to “provide otherwise” is Rule 6(e)(3). Rules 6(e)(2) and (3)
together explicitly require secrecy in all other circumstances.
See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)
(“Where Congress explicitly enumerates certain exceptions to
a general prohibition, additional exceptions are not to be
6
implied, in the absence of evidence of a contrary legislative
intent”).
That the list of enumerated exceptions is so specific
bolsters our conclusion. For example, the first of the five
discretionary exceptions in Rule 6(e)(3)(E) permits the court to
authorize disclosure of a grand jury matter “preliminarily to or
in connection with a judicial proceeding.” Rule 6(e)(3)(E)(i).
The second exception allows for disclosure “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.” Rule 6(e)(3)(E)(ii). The other three exceptions provide
that a court may authorize disclosure to certain non-federal
officials “at the request of the government” to aid in the
enforcement of a criminal law, Rule 6(e)(3)(E)(iii)-(v); those
provisions implicitly bar the court from releasing materials to
aid in enforcement of civil law. Each of the exceptions can
clearly be seen, therefore, as the product of a carefully
considered policy judgment by the Supreme Court in its
rulemaking capacity, and by the Congress, which in 1977
directly enacted Rule 6(e) in substantially its present form. See
Fund for Constitutional Gov’t, 656 F.2d at 867. In interpreting
what is now Rule 6(e)(3)(E)(i), for example, the Supreme
Court stressed that the exception “reflects a judgment that not
every beneficial purpose, or even every valid governmental
purpose, is an appropriate reason for breaching grand jury
secrecy.” United States v. Baggot, 463 U.S. 476, 480 (1983).
As the Government emphasizes, McKeever points to
nothing in Rule 6(e)(3) that suggests a district court has
authority to order disclosure of grand jury matter outside the
enumerated exceptions. The list of exceptions in Rule 6(e)(3)
does not lead with the term “including,” nor does it have a
residual exception. Cf., e.g., FED. R. CIV. P. 60(b) (permitting
the court to relieve a party from a final judgment or order for
7
five listed reasons as well as “any other reason that justifies
relief”).
The contrary reading proposed by McKeever – which
would allow the district court to create such new exceptions as
it thinks make good public policy – would render the detailed
list of exceptions merely precatory and impermissibly enable
the court to “circumvent” or “disregard” a Federal Rule of
Criminal Procedure. Carlisle v. United States, 517 U.S. 416,
426 (1996); see also Dietz v. Bouldin, 136 S. Ct. 1885, 1888
(2016) (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”).
In an effort to limit the natural consequences of his
proposal, McKeever explains that the district court should be
allowed to fashion new exceptions to grand jury secrecy only
if they are “so different from the types of disclosures addressed
by Rule 6(e)(3)(E) that no negative inference can be drawn.”
Amicus Reply Br. 14-16. That reasoning, however, ignores the
likelihood that disclosures “so different” from the ones
explicitly permitted by the rule are so far removed from
permissible purposes of disclosure that the drafters saw no need
even to mention them.
Our understanding that deviations from the detailed list of
exceptions in Rule 6(e) are not permitted is fully in keeping
with Supreme Court precedent. Though the Court has not
squarely addressed the present question, its Rule 6 opinions
cast grave doubt upon the proposition that the district court has
authority to craft new exceptions. McKeever does not cite any
case – and we can find none – in which the Supreme Court
upheld a disclosure pursuant to the district court’s inherent
authority after Rule 6 was enacted. The Supreme Court once
suggested in a dictum that Rule 6 “is but declaratory” of the
8
principle that disclosure of a grand jury matter is “committed
to the discretion of the trial judge,” Pittsburgh Plate Glass Co.
v. United States, 360 U.S. 395, 399 (1959), but none of the
cases it cited suggests a court has discretion to disclose grand
jury materials apart from Rule 6. To the contrary, the Court
said “any disclosure of grand jury [materials] is covered” by
Rule 6(e). Id. at 398. The disclosure sought in that case – in
order to cross-examine a witness in civil litigation – plainly fell
within the exception for use “in connection with a judicial
proceeding.” Id. at 396 n.1 (quoting rule). The 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. See id. at 398-99; see also Douglas Oil, 441 U.S.
at 217-24 (describing same discretion). Indeed, the Court has
at least four times since suggested the exceptions in Rule 6(e)
are exclusive. In Baggot, 463 U.S. at 479-80, the Court
prohibited disclosure of a witness’s grand jury testimony for
use in a civil investigation by the Internal Revenue Service.
The Court held a civil tax audit was not “preliminary to [n]or
in connection with a judicial proceeding” and therefore did not
come within the exception in what is now Rule 6(e)(3)(E)(i).
In reaching its conclusion, the Court explained that the
exception at issue is “on its face, an affirmative limitation on
the availability of court-ordered disclosure of grand jury
materials.” Id. at 479; see also Illinois v. Abbott & Assocs.,
Inc., 460 U.S. 557, 567 (1983) (Rule 6(e)(3)(C) “authorize[s]”
the court “to permit certain disclosures that are otherwise
prohibited by the General Rule of Secrecy”); United States v.
Williams, 504 U.S. 36, 46 n.6 (1992) (describing Rule 6(e),
which “plac[es] strict controls on disclosure of ‘matters
occurring before the grand jury,’” as one of those “few, clear
rules which were carefully drafted and approved by this Court
and by the Congress to ensure the integrity of the grand jury’s
functions”); Sells Engineering, 463 U.S. at 425 (“In the
9
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”).
Our understanding of Rule 6(e) is also supported by this
court’s precedents, which require a district court to hew strictly
to the list of exceptions to grand jury secrecy. For example, In
re Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986), we said
Rule 6(e)(2) “provides that disclosure of ‘matters occurring
before the grand jury’ is prohibited unless specifically
permitted by one of the exceptions set forth in Rule 6(e)(3).”
A few years later, we reiterated this point In re Sealed Case,
250 F.3d 764, 768 (D.C. Cir. 2001), when we held that
statements made by government attorneys to a qui tam court
about a witness’s grand jury testimony were an impermissible
disclosure outside the strictures of Rule 6(e). In so holding, we
rejected the Government’s then-position that there is a place
for implied exceptions to the Rule: “the Rule on its face
prohibits such a communication because it does not except it
from the general prohibition.” Id. at 769. It would be most
peculiar to have stressed then that the exceptions in Rule 6(e)
“must be narrowly construed,” id. 769, yet to hold now that
they may be supplemented by unwritten additions. 3
3
McKeever and our dissenting colleague cite Haldeman v. Sirica,
501 F.2d 714 (D.C. Cir. 1974) – which permitted the disclosure of a
sealed grand jury report to aid in the inquiry by the House Judiciary
Committee into possible grounds for impeachment of President
Nixon – as stepping outside the strict bounds of Rule 6(e). As the
dissent acknowledges, however, our opinion in “Haldeman …
contains no meaningful analysis of Rule 6(e)’s terms.” Rather, the
court’s opinion is ambiguous as to its rationale, expressing only a
“general agreement” with the district court’s decision. Id. at 715.
The reasoning of the district court is itself ambiguous; its holding
that “[p]rinciples of grand jury secrecy do not bar this disclosure” is
10
based in part upon various policy considerations; in part upon the
view that grand jury matters may lawfully be made available to the
House of Representatives as “a body that in this setting acts simply
as another grand jury”; and in part upon the view that it “seems
incredible that grand jury matters should lawfully be available to
disbarment committees and police disciplinary investigations and yet
be unavailable to the House of Representatives in a proceeding of so
great import as an impeachment investigation.” See In re Report &
Recommendation of June 5, 1972 Grand Jury Concerning
Transmission of Evidence to House of Representatives, 370 F. Supp.
1219, 1228-30 (D.D.C. 1974); id. at 1228 n.39 (citing Special Feb.
1971 Grand Jury v. Conlisk, 490 F.2d 894, 897 (7th Cir. 1973)
(police disciplinary investigation)), and id. at 1229 n.41 (citing Doe
v. Rosenberry, 255 F.2d 118, 120 (2d Cir. 1958) (disbarment
committee)), both decided per the “judicial proceeding” exception in
Rule 6(e).
The dissent also notes that the district court in Haldeman favorably
cited Judge Friendly’s opinion In re Biaggi, 478 F.2d 489 (2d Cir.
1973), which authorized a disclosure not covered by any Rule 6(e)
exception. But Biaggi was carefully limited to the “special
circumstances” of that case, id. at 494, in which a grand jury witness,
who is not subject to any secrecy obligation in the first place, sought
disclosure only of his own testimony. See id. at 492-93. Judge
Friendly carefully noted that, if the witness had not sought his own
testimony, then disclosure would have been improper “[n]o matter
how much, or how legitimately, the public may want to know” how
the witness had testified. Id. at 493.
In any event, we read Haldeman as did Judge MacKinnon in his
separate opinion concurring in part, as fitting within the Rule 6
exception for “judicial proceedings.” See 501 F.2d at 717. Doing so
reads the case to cohere, rather than conflict, with the Supreme Court
and D.C. Circuit precedents discussed above, which both predate and
postdate Haldeman.
11
McKeever makes three arguments to the contrary. The
first is that Rule 6(e) imposes no obligation of secrecy upon the
district court itself because the district court is not on the list of
“persons” to whom grand jury secrecy applies per Rule 6(e)(2).
See Rule 2(e)(2)(A) (“No obligation of secrecy may be
imposed on any person except in accordance with Rule
6(e)(2)(B)”). Therefore, the argument goes, the two Sealed
Cases discussed above are inapplicable here because they deal
with disclosures by government attorneys, not by the court
itself, and the court has authority to order disclosure of grand
jury matters because these materials are “judicial records” over
which the court has inherent authority. Amicus Br. 24-25
(citing, inter alia, Carlson v. United States, 837 F.3d 753, 758-
59 (7th Cir. 2016) (concluding grand jury records are “records
of the court” over which the district court can exercise inherent
authority because the grand jury is “part of the judicial
process”)).
We do not agree that the omission of the district court from
the list of “persons” in Rule 6(e)(2) supports McKeever’s
claim. Rule 6 assumes the records are in the custody of the
Government, not that of the court: When the court authorizes
their disclosure, it does so by ordering “an attorney for the
government” who holds the records to disclose the materials.
See Rule 6(e)(1) (“Unless the court orders otherwise, an
attorney for the government will retain control of the recording,
the reporter’s notes, and any transcript” of the grand jury
proceeding). Because an “attorney for the government” is one
of the “persons” subject to grand jury secrecy in Rule
6(e)(2)(B), the Rule need not also list the district court as a
“person” in order to make the court, as a practical matter,
subject to the strictures of Rule 6. Indeed, as the Government
explains, a district court is not ordinarily privy to grand jury
matters unless called upon to respond to a request to disclose
grand jury matter. As to whether records of a grand jury
12
proceeding are “judicial records” – a term not found in Rule 6
– we note the teaching of the Supreme Court that although the
grand jury may act “under judicial auspices,” its “institutional
relationship with the Judicial Branch has traditionally been, so
to speak, at arm’s length,” Williams, 504 U.S. at 47; it is
therefore not at all clear that when Rule 6(e)(2)(B) mentions a
“matter appearing before the grand jury,” it is referring to a
“judicial record.” The Supreme Court has never said as much,
and we, albeit in another context, have twice said the opposite:
“[T]he concept of a judicial record ‘assumes a judicial
decision,’ and with no such decision, there is ‘nothing judicial
to record.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir.
2013) (quoting United States v. El-Sayegh, 131 F.3d 158, 162
(D.C. Cir. 1997)).
McKeever’s second argument, which was recently
accepted by the Seventh Circuit in Carlson, is that the advent
of Rule 6 did not eliminate the district court’s preexisting
authority at common law to disclose grand jury matters because
courts “do not lightly assume” a federal rule reduces the “scope
of a court’s inherent power.” Chambers v. NASCO, Inc., 501
U.S. 32, 47 (1991) (citation omitted). A federal rule that
“permits a court to do something and does not include any
limiting language” therefore “should not give rise to a negative
inference that it abrogates the district court's inherent power
without a ‘clear[] expression of [that] purpose.’” Carlson, 837
F.3d at 763 (quoting Link v. Wabash R.R. Co., 370 U.S. 626,
631-32 (1962)) (alterations in original). In this telling, because
Rule 6 did not contain a “clear expression” that it displaced the
district court’s preexisting authority, the court remains free to
craft new exceptions; the rulemakers simply furnished the list
of detailed exceptions “so that the court knows that no special
hesitation is necessary in those circumstances.” Id. at 764-65.
13
That account of Rule 6 is difficult to square with the text
of the Rule, which we have examined above. The “limiting
language,” id. at 763, the Seventh Circuit sought is plain: Rule
6(e)(2) prohibits disclosure of a grand jury matter “unless these
rules provide otherwise.” Yet the Seventh Circuit dismisses
this instruction because a limitation “buried” in Rule 6(e)(2)
could not “secretly appl[y]” to “an entirely different subpart,”
Carlson, 837 F.3d at 764, never mind that this subpart follows
immediately after Rule 6(e)(2) as Rule 6(e)(3). Because we
believe it is necessary to read the exceptions in subpart (e)(3)
in conjunction with the general rule in subpart (e)(2), we agree
with Judge Sykes’s dissent in Carlson:
As my colleagues interpret the rule, the limiting
language in the secrecy provision has no bearing at all
on the exceptions.... But the two provisions cannot be
read in isolation. They appear together in subpart (e),
sequentially, and govern the same subject matter. The
exceptions plainly modify the general rule of
nondisclosure. Treating the exceptions as merely
exemplary puts the two provisions at cross-purposes: If
the district court has inherent authority to disclose
grand-jury materials to persons and in circumstances
not listed in subsection (e)(3)(E), the limiting phrase
“unless these rules provide otherwise” in the secrecy
provision is ineffectual.
Id. at 769.
McKeever’s third contention is that the purposes of grand
jury secrecy would not be served by denying disclosure in this
case; the passage of time and likely death of all witnesses in
Frank’s grand jury proceeding have rendered continued
secrecy pointless. Of course, these considerations are
irrelevant if the district court lacks authority to create new
14
exceptions to Rule 6(e). In any event, it is not clear that
continued secrecy serves no purpose in this case. First, privacy
interests can persist even after a person’s death. See New York
Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d
1002, 1009-1010 (D.C. Cir. 1990). Second, as the Supreme
Court noted in Douglas Oil, there is likely to be a chilling effect
on what a witness is willing to say to a grand jury if there is a
risk the court will later make the witness’s testimony public.
441 U.S. at 219. The effect of an exception must be evaluated
ex ante, not ex post. For example, if a witness in Frank’s grand
jury proceedings had known that the public might learn about
his testimony in the future – and that his words could be
immortalized in a book – then his willingness to testify “fully
and frankly,” id., could have been affected. Furthermore, the
risk of a witness’s testimony being disclosed would grow as
district courts continue over time to create additional
exceptions to grand jury secrecy.
Our concern is not merely hypothetical; as the
Government points out, there has been a steady stream of
requests for disclosures since the district court first claimed
inherent authority In re Petition of Kutler, 800 F. Supp. 2d 42,
50 (D.D.C. 2011) (granting request to disclose President
Nixon’s grand jury testimony about Watergate due to its
historical importance). See In re Application to Unseal
Dockets Related to the Independent Counsel’s 1998
Investigation of President Clinton, 308 F. Supp. 3d 314, 335-
36 (D.D.C. 2018) (ordering disclosure of grand jury materials
related to the investigation of President Clinton’s business
dealings and his relationship with a White House intern);
Sennett v. Dep’t of Justice, 962 F. Supp. 2d 270, 283-84
(D.D.C. 2013) (permitting the FBI to withhold grand jury
information in response to a Freedom of Information Act
request despite the requester’s argument for an exception to
grand jury secrecy for historically important material); In re
15
Nichter, 949 F. Supp. 2d 205, 212-13 (D.D.C. 2013) (denying
disclosure of certain grand jury records about Watergate in part
because at least one of the subjects of the testimony was alive);
In re Shepard, 800 F. Supp. 2d 37, 39-40 (D.D.C. 2011)
(denying as overbroad a request for disclosure of “all testimony
and materials associated with every witness before three
[Watergate] grand juries”).
We recognize that our view of Rule 6(e) differs from that
of some other circuits. See, e.g., Carlson, 837 F.3d at 767,
discussed above; In re Craig, 131 F.3d at 105 (recognizing it is
“entirely conceivable that in some situations historical or
public interest alone could justify the release of grand jury
information” because they constitute “special circumstances”
in which release of grand jury records is appropriate outside the
bounds of Rule 6); In re Hastings, 735 F.2d 1261, 1272 (11th
Cir. 1984) (allowing a district court to “act outside the strict
bounds of Rule 6(e), in reliance upon its historic supervisory
power” to disclose grand jury matters to a judicial investigating
committee); Pitch v. United States, 915 F.3d 704, 707 (11th
Cir. 2019) (affirming an order to unseal historically significant
grand jury matter “[b]ecause we are bound by our decision in
Hastings”). For all the reasons set forth above, we simply
cannot agree.
Instead, we agree with the Sixth Circuit, which has turned
down an invitation to craft an exception to grand jury secrecy
outside the terms of the Rule:
We are not unaware of those commentators who have
urged the courts to make grand jury materials more
accessible to administrative agencies in an effort to
reduce duplicative investigations. Rule 6(e)(3)(C)(i) is
not a rule of convenience; without an unambiguous
statement to the contrary from Congress, we cannot,
16
and must not, breach grand jury secrecy for any purpose
other than those embodied by the Rule.
In re Grand Jury 89-4-72, 932 F.2d 481, 488 (1991) (citation
omitted). The Eighth Circuit expressed the same view in
United States v. McDougal, 559 F.3d 837, 840 (2009):
McDougal’s argument invoking ... the “[c]ourt’s
supervisory power over its own records and files” is
unpersuasive.... “[B]ecause the grand jury is an
institution separate from the courts, over whose
functioning the courts do not preside,” United States v.
Williams, 504 U.S. 36, 47 (1992), courts will not order
disclosure absent a recognized exception to Rule 6(e)
....
Just so. 4
III. Conclusion
Because the district court has no authority outside Rule
6(e) to disclose grand jury matter, the order of the district court
denying McKeever’s petition is
Affirmed.
4
At least three other circuits have expressed the same view in dicta.
See United States v. Educ. Dev. Network Corp., 884 F.2d 737, 740
(3d Cir. 1989); In re Grand Jury Subpoenas, Apr., 1978, at
Baltimore, 581 F.2d 1103, 1108–09 (4th Cir. 1978); In re J. Ray
McDermott & Co., Inc., 622 F.2d 166, 172 (5th Cir. 1980).
17
Appendix
Federal Rule of Criminal Procedure 6: The Grand Jury
(e) Recording and Disclosing the Proceedings.
(1) Recording the Proceedings. Except while the grand
jury is deliberating or voting, all proceedings
must be recorded by a court reporter or by a
suitable recording device. But the validity of a
prosecution is not affected by the unintentional
failure to make a recording. 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.
(2) Secrecy.
(A) No obligation of secrecy may be imposed on
any person except in accordance with Rule
6(e)(2)(B).
(B) Unless these rules provide otherwise, the
following persons must not disclose a matter
occurring before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of a recording device;
(v) a person who transcribes recorded
testimony;
(vi) an attorney for the government; or
(vii) a person to whom disclosure is made
under Rule 6(e)(3)(A)(ii) or (iii).
(3) Exceptions.
(A) Disclosure of a grand-jury matter – other than
the grand jury's deliberations or any grand
juror's vote – may be made to:
18
(i) an attorney for the government for use in
performing that attorney's duty;
(ii) any government personnel – including
those of a state, state subdivision, Indian
tribe, or foreign government – that an
attorney for the government considers
necessary to assist in performing that
attorney's duty to enforce federal
criminal law; or
(iii) a person authorized by 18 U.S.C. §
3322.
(B) A person to whom information is disclosed
under Rule 6(e)(3)(A)(ii) may use that
information only to assist an attorney for the
government in performing that attorney’s duty
to enforce federal criminal law. An attorney for
the government must promptly provide the
court that impaneled the grand jury with the
names of all persons to whom a disclosure has
been made, and must certify that the attorney
has advised those persons of their obligation of
secrecy under this rule.
(C) An attorney for the government may disclose
any grand-jury matter to another federal grand
jury.
(D) An attorney for the government may disclose
any grand-jury matter involving foreign
intelligence, counterintelligence (as defined in
50 U.S.C. § 3003), or foreign intelligence
information (as defined in Rule 6(e)(3)(D)(iii))
to any federal law enforcement, intelligence,
protective, immigration, national defense, or
national security official to assist the official
receiving the information in the performance
of that official's duties. An attorney for the
19
government may also disclose any grand-jury
matter involving, within the United States or
elsewhere, a threat of attack or other grave
hostile acts of a foreign power or its agent, a
threat of domestic or international sabotage or
terrorism, or clandestine intelligence gathering
activities by an intelligence service or network
of a foreign power or by its agent, to any
appropriate federal, state, state subdivision,
Indian tribal, or foreign government official,
for the purpose of preventing or responding to
such threat or activities.
(i) Any official who receives information
under Rule 6(e)(3)(D) may use the
information only as necessary in the
conduct of that person's official duties
subject to any limitations on the
unauthorized disclosure of such
information. Any state, state
subdivision, Indian tribal, or foreign
government official who receives
information under Rule 6(e)(3)(D) may
use the information only in a manner
consistent with any guidelines issued by
the Attorney General and the Director of
National Intelligence.
(ii) Within a reasonable time after disclosure
is made under Rule 6(e)(3)(D), an
attorney for the government must file,
under seal, a notice with the court in the
district where the grand jury convened
stating that such information was
disclosed and the departments, agencies,
or entities to which the disclosure was
made.
20
(iii) As used in Rule 6(e)(3)(D), the term
“foreign intelligence information”
means:
(a) information, whether or not it
concerns a United States person,
that relates to the ability of the
United States to protect against–
• actual or potential attack or
other grave hostile acts of a
foreign power or its agent;
• sabotage or international
terrorism by a foreign power
or its agent; or
• clandestine intelligence
activities by an intelligence
service or network of a foreign
power or by its agent; or
(b) information, whether or not it
concerns a United States person,
with respect to a foreign power or
foreign territory that relates to–
• the national defense or the
security of the United States;
or
• the conduct of the foreign
affairs of the United States.
(E) The court may authorize disclosure – at a time,
in a manner, and subject to any other
conditions that it directs – of a grand-jury
matter:
(i) preliminarily to or in connection with a
judicial proceeding;
(ii) at the request of a defendant who shows
that a ground may exist to dismiss the
21
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
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.
(F) A petition to disclose a grand-jury matter under
Rule 6(e)(3)(E)(i) must be filed in the district
where the grand jury convened....
[Remainder of Rule 6 omitted.]
SRINIVASAN, Circuit Judge, dissenting: The central issue
in this case is whether a district court can authorize the release
of grand jury materials in circumstances beyond those
expressly identified in Rule 6(e) of the Federal Rules of
Criminal Procedure. If not, grand jury materials falling outside
Rule 6(e)’s exceptions cannot be released even if there is a
strong public interest favoring disclosure and no enduring
interest in secrecy. My colleagues read Rule 6 to compel that
result. In my respectful view, however, our court’s en banc
decision in Haldeman v. Sirica, 501 F.2d 714 (1974), allows
for district court disclosures beyond Rule 6(e)’s exceptions.
Rule 6(e) “codifies the traditional rule of grand jury
secrecy.” United States v. Sells Eng’g, Inc., 463 U.S. 418, 425
(1983). The Rule imposes an obligation of secrecy on certain
persons, Rule 6(e)(2), but then sets out five exceptions to that
obligation, Rule 6(e)(3)(A)–(E). The first four exceptions
allow for disclosure without a need for district court
authorization. The last exception describes five circumstances
in which “[t]he court may authorize disclosure . . . of a grand-
jury matter.” Rule 6(e)(3)(E)(i)–(v) (emphasis added). None
of those circumstances applies in this case.
The crucial question for our purposes, then, is whether
Rule 6(e)(3)’s exceptions identify the only circumstances in
which a district court may authorize disclosure of grand jury
materials. Or, alternatively, does a court retain inherent
discretion to consider releasing grand jury materials in other
circumstances—potentially including, as relevant here, for
reasons of historical significance?
In Haldeman, this court, sitting en banc, faced the
contention that a district court’s authority to disclose grand jury
materials is confined to the exceptions in Rule 6(e). The
district court in that case had ordered the disclosure of materials
from the Watergate grand jury to the House Judiciary
Committee for its consideration in investigating the possible
2
impeachment of President Nixon. Only one of the exceptions
in Rule 6(e) even arguably applied: when disclosure occurs
“preliminarily to or in connection with a judicial proceeding.”
See Rule 6(e)(3)(E)(i).
The petitioners in Haldeman asked our court to prohibit
the district court from releasing the grand jury materials to the
House Judiciary Committee. We declined to do so and instead
sustained the district court’s disclosure order. 501 F.2d at 716.
Our decision thus settled that a district court retains discretion
to release grand jury matter to a House Committee in the
specific context of an impeachment inquiry.
But what are the implications of our decision in Haldeman
for a district court’s authority to release grand jury materials
outside the impeachment context? And, in particular, does a
district court possess inherent discretion to consider disclosure
beyond the specific exceptions set out in Rule 6(e)—including,
as relevant here, for reasons of historical significance?
The petitioners in Haldeman argued no. They believed the
district court lacked discretion to disclose the grand jury
materials to the House Judiciary Committee unless the
circumstances fit within the Rule 6(e) exception for judicial
proceedings. They “asserted, both in the District Court and
here, that the discretion ordinarily reposed in a trial court to
make such disclosure of grand jury proceedings as he deems in
the public interest is, by the terms of Rule 6(e) . . . limited to
circumstances incidental to judicial proceedings and that
impeachment does not fall into that category.” Id. at 715.
In rejecting the petitioners’ argument, we said that the
district judge, Chief Judge Sirica, “ha[d] dealt at length with
this contention,” that we were “in general agreement with his
handling of the[] matter[],” and that “we fe[lt] no necessity to
3
expand his discussion.” Id. Our decision thereby subscribed
to Chief Judge Sirica’s rationale for his disclosure order. The
question for our purposes, then, is whether he ordered the
disclosure on an understanding that he had inherent discretion
to release grand jury materials outside the Rule 6(e) exceptions,
or whether he instead believed he was confined to those
exceptions but that the disclosure to the House Judiciary
Committee fit within the exception for judicial proceedings.
I understand Chief Judge Sirica to have adopted—and thus
our court to have ratified—the former understanding. He
began his analysis by stating that, as to “the question of
disclosure,” “judicial authority” is “exclusive.” In re Report &
Recommendation of June 5, 1972 Grand Jury, 370 F. Supp.
1219, 1226 (D.D.C. 1974). He noted decisions that had
assessed the propriety of disclosure by weighing, “among other
criteria, judicial discretion over grand jury secrecy, the public
interest, and prejudice to persons named by the [grand jury]
report.” Id. at 1227. Those considerations led him to conclude
“that delivery to the Committee is eminently proper, and
indeed, obligatory.” Id.Judge Sirica identified the “only significant objection to
disclosure” to be “the contention that release . . . is absolutely
prohibited by Rule 6(e).” Id. He emphasized, though, 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.” Id. (emphasis in original). He reviewed decisions
addressing the exception for judicial proceedings and
concluded that the “difficulty in application of Rule 6(e) to
specific fact situations likely arises from the fact that its
language regarding ‘judicial proceedings’ can imply
limitations on disclosure much more extensive than were
apparently intended.” Id. at 1229.
4
Of particular salience, Judge Sirica favorably referenced a
then-recent “opinion written by Chief Judge Friendly” in which
“the Second Circuit held that Rule 6(e) did not bar public
disclosure of grand jury minutes[] wholly apart from judicial
proceedings.” Id. (emphasis added). The Second Circuit had
found that the judicial-proceeding exception was
“inapplicable” because the court had “not been told of any
judicial proceeding preliminary to or in connection with which
the . . . grand jury testimony may be relevant.” In re Biaggi,
478 F.2d 489, 492 (2d Cir. 1973). But the court still allowed
disclosure, even though no Rule 6(e) exception applied. Id. at
492–93; see id. at 493–94 (Hays, J., dissenting) (noting that the
majority allowed disclosure even though it “concede[d] that the
present situation does not present a case for the application of
any of the exceptions specified in the Rule”).
Judge Sirica, in concluding that “[p]rinciples of grand jury
secrecy do not bar [the] disclosure” at issue in Haldeman,
explained that he was “persuaded to follow the lead . . . of
Judges Friendly and Jameson” in Biaggi. 370 F. Supp. at 1230.
He also listed additional decisions he was “persuaded to
follow” in which disclosure had been authorized. Id. Those
decisions, like Biaggi, did not involve disclosures justified on
the theory that they fell within any Rule 6(e) exception. I thus
understand Judge Sirica to have ordered disclosure on the
understanding that he retained inherent discretion to release
grand jury materials outside of Rule 6(e)’s exceptions.
Granted, Judge Sirica at one point described the House
Judiciary Committee as “a body that in this setting acts simply
as another grand jury.” Id. But, as his reliance on Biaggi and
the other decisions shows, he did not compare the Committee
to “another grand jury” on any theory that the Committee’s
investigation implicated the judicial-proceedings exception. In
fact, the Advisory Committee later added an exception
5
allowing disclosures from one grand jury to another, reasoning
that such a transfer fell outside the pre-existing judicial-
proceedings exception. See Rule 6(e)(3)(C) advisory
committee’s note to 1983 amendment. Rather, Judge Sirica
compared the Committee to “another grand jury” to convey
that the Committee likewise would “insure against unnecessary
and inappropriate disclosure.” 370 F. Supp. at 1230.
For those reasons, when our court in Haldeman endorsed
Judge Sirica’s approach, we in my view affirmed his
understanding that a district court retains discretion to release
grand jury materials outside the Rule 6(e) exceptions. To be
sure, Haldeman—unlike my colleagues’ careful opinion in this
case—contains no meaningful analysis of Rule 6(e)’s terms.
But Rule 6(e) has not changed since Haldeman in any way
material to the issue we address today. And my reading of
Haldeman squares with the reading of the decision adopted by
each of our sister circuits to have interpreted it. See Pitch v.
United States, 915 F.3d 704, 710 n.5 (11th Cir. 2019); Carlson
v. United States, 837 F.3d 753, 766 (7th Cir. 2016). It also
squares with the Advisory Committee’s evident reason for
declining to add a Rule 6(e) exception for historically-
significant materials—viz., that district courts already
authorized such disclosures as a matter of their inherent
authority. See Pitch, 915 F.3d at 715 (Jordan, J., concurring).
It is also consistent with various decisions relied on by my
colleagues, see supra at 7–9 & n.3, none of which dealt with
whether courts can order disclosures outside of Rule 6(e)’s
exceptions.
Because my colleagues conclude that district courts lack
authority to release grand jury materials outside the Rule 6(e)
exceptions, they have no occasion to decide whether, if district
courts do have that authority, the district court in this case
appropriately declined to exercise it. I therefore do not reach
6
that issue either. But on the threshold question of whether
district courts have discretion to consider disclosures beyond
Rule 6(e), I respectfully dissent from my colleagues’ view
based on my different reading of our decision in Haldeman.