Elliot CARLSON, et al., Petitioners-Appellees, v. UNITED STATES of America, Respondent-Appellant.
No. 15-2972
United States Court of Appeals, Seventh Circuit.
Argued February 18, 2016 Decided September 15, 2016
833 F.3d 753
Jaynie Randall Lilley, Mark R. Freeman, Michael S. Raab, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, Daniel W. Gillogly, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellant.
Before WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges.
WOOD, Chief Judge.
During World War II, the U.S. Office of War Information warned the populace that “loose lips sink ships.” See The Phrase Finder, http://www.phrases.org.uk/meanings/237250.html (last visited Sept. 15, 2016). But what if the ships sailed some 70 years before the tongues wag? That is the problem we face in the present case, in which Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that
We find nothing in the text of
I
The story behind our case is a thrilling one, involving espionage, World War II, and legal wrangling. The year is 1942; the setting, the Pacific Theater. After Pearl Harbor was attacked in December 1941, the shocked U.S. Navy sprang into action. The Japanese military hoped to sink the remainder of the U.S. fleet and was aiming to do so in an attack on Midway Island and the Aleutian Islands, nearly 2,000 miles away, in June 1942. The Japanese planned to invade the Aleutians with a small detachment so as to lure U.S. ships out of their safe harbors, then attack those ships with a larger force while simultaneously invading and occupying Midway as the U.S. Navy was distracted. See NORMAN STONE, WORLD WAR TWO 123-24 (2012). Instead, the U.S. Navy forces pulled off a stunning victory, defending Midway and sinking all five carriers that the Japanese had devoted to the operation, as well as some other ships. The victory at Midway was widely seen as a turning point in the Pacific. Id. at 124.
How did the U.S. Navy know its plan would work? Unbeknownst to Japan, the United States had broken some critical Japanese codes some two years earlier. ANTHONY BEEVOR, THE SECOND WORLD WAR 307 (2012). The U.S. Navy was thus able to figure out beforehand that Japan‘s attack on the Aleutians was a feint, and Japan‘s real goal was to overtake Midway and sink U.S. aircraft carriers in the process. STONE, supra, at 123. As the commander-in-chief of the U.S. Pacific Fleet explained in a later report, “[h]ad we lacked early information of the Japanese movement ... the Battle of Midway would have ended far differently.” BEEVOR, supra, at 311.
This explains why senior U.S. officials were so dismayed when the Chicago Tribune blew their secret. On June 7, 1942, the Chicago Tribune‘s banner headline announced victory in the Battle of Midway. Right below, the Tribune dropped another bombshell: “Navy Had Word of Jap Plan to Strike at Sea.” Stanley Johnston, CHICAGO TRIBUNE, June 7, 1942, at A1. The article explained that the United States knew that Japan was planning a minor attack on one American base as a distraction from a major attack on another, and this advance notice enabled the Navy to plan its victorious counterattack. The article appeared to be—and as we now know, in fact was—based on a classified Navy communiqué that alerted naval commanders to the impending attack on Midway Island.
The article‘s publication had immediate consequences: President Roosevelt and high-ranking military officials called for a criminal investigation. The Department of Justice complied, empaneling a grand jury and launching an investigation into whether the article‘s author and other Tribune staff had violated the Espionage Act of 1917. The grand jury heard testimony from an assortment of witnesses, including Tribune personnel, several identified military officers, and three or four unknown officers. Ultimately, the grand jury did not issue any indictments, a decision that the Tribune and other prominent national newspapers hailed as a victory for free speech.
Fast forward to the present, more than 70 years later. Elliot Carlson is a journalist and historian with a special expertise in naval history. He is the author of Joe Rochefort‘s War: The Odyssey of the Code-
Carlson chose the Northern District of Illinois because it was the court that originally had supervisory jurisdiction over the grand jury in question. He argued that this same court has continuing common-law authority over matters pertaining to that grand jury, including any application to unseal grand-jury materials. The convening court, for instance, would have the authority to rule on disclosure pursuant to
Carlson argued that his request satisfied these criteria, and the district court agreed with him. It decided first that it possessed the inherent authority to unseal grand-jury materials in situations outside the scope of
II
Before turning to the merits of the appeal, we must assure ourselves that both the district court and we have jurisdiction over this matter. Because neither Carlson nor any of his fellow petitioner-appellees were parties to the underlying grand jury investigation, we must confirm that at least one of them has standing to bring this claim. See Ezell v. City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011) (“Where at least one plaintiff has standing, jurisdiction is secure[,]” citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). And because Carlson does not invoke a Federal Rule of Criminal Procedure as the basis for granting his petition to obtain the records, relying instead on the court‘s inherent power, we must confirm that we have subject-matter jurisdiction. We solicited supplemental briefs from the parties on these important points.
A
1
As a member of the public, Carlson has standing to assert his claim to the
Carlson‘s injury-in-fact is the denial of access to government documents that he has a right to seek. A plaintiff suffers an injury-in-fact when she is unable to obtain information that is statutorily subject to public disclosure. Federal Elec. Comm‘n v. Akins, 524 U.S. 11, 20-21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998); Public Citizen v. Dep‘t of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). Injury-in-fact can arise from a comparable common-law source. See Spokeo, 136 S.Ct. at 1549; Id. at 1550-53 (Thomas, J., concurring) (explaining that plaintiffs asserting common-law injuries can more easily demonstrate injury-in-fact than others). Carlson needs only a “colorable claim” to a right to access these documents, because “[w]ere we to require more than a colorable claim, we would decide the merits of the case before satisfying ourselves of standing.” See Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 900 (7th Cir. 2012); see also Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009).
Thus the question becomes whether Carlson has a colorable claim of a right to obtain access to these documents. He does. Carlson argues that grand-jury records are court documents; he argues further that under the circumstances of this case he has a right to review them. Although the grand jury operates according to a “tradition of independence,” United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), “[t]he Constitution itself makes the grand jury part of the judicial process.” Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 84 L.Ed. 783 (1940); see also Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (“the powers of the grand jury are ... subject to the supervision of a judge“); Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) (the grand jury is “an arm of the court“); Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959) (“[a] grand jury is clothed with great independence in many areas, but it remains an appendage of the court“) overruled on other grounds by Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); Blair v. United States, 250 U.S. 273, 278, 39 S.Ct. 468, 63 L.Ed. 979 (1919) (“the inquisitorial function of the grand jury ... [is] incident[ to] the judicial power of the United States“).
Because the grand jury is “part of the judicial process,” Cobbledick, 309 U.S. at 327, its “minutes and transcripts” are necessarily “records of the court.” United States v. Procter & Gamble Co., 356 U.S. 677, 684-85, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (Whittaker, J., concurring); see also Standley v. Dep‘t of Justice, 835 F.2d 216, 218 (9th Cir. 1987) (“grand jury materials are records of the district
For public documents such as these, there is no need for Carlson to show that he has any particular connection to the grand jury proceeding. As we explained in Jessup v. Luther, “[r]epresentatives of the press and general public must be given an opportunity to be heard on the question of ... access to documents.” 227 F.3d 993, 997 (7th Cir. 2000); see also Corbitt, 879 F.2d at 228-29 (entertaining newspaper‘s request to see sealed pre-sentence report, and analogizing pre-sentence report to grand jury materials). To hold otherwise would raise First Amendment concerns. Cf. United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982) (recognizing that the “common law right” of public access to court records “supports and furthers many of the same interests which underlie those freedoms protected by the constitution“); Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 604, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (holding First Amendment guarantees access to criminal trials, and limitations on access are subject to strict scrutiny); Butterworth v. Smith, 494 U.S. 624, 630, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (reiterating, in the context of prohibiting a witness from discussing his testimony, “grand juries are expected to operate within the limits of the First Amendment“). That Carlson is a member of the public is sufficient for him to assert his “general right to inspect and copy ... judicial records.” Nixon, 435 U.S. at 597.
The administrative reality that the physical documents are currently housed in a facility operated by the National Archives and Records Administration (NARA), rather than in a storeroom controlled by the district court, does not change this analysis. NARA is an office of the executive branch; it manages archival documents “to ensure their continued preservation by the United States Government.”
Carlson easily satisfies the other two elements of
Our decision in Bond v. Utreras is not to the contrary—indeed, it supports this position. 585 F.3d 1061 (7th Cir. 2009). In Bond, we drew a sharp line between civil pre-trial discovery documents that were never filed with the court and documents that were filed with the court. Id. at 1066. We held that “documents filed in court are presumptively open to the public” and explained that this right of access “is derived from ... common-law,” codified by statute, and any “judicially imposed limitations on this right are subject to the First Amendment.” Id. at 1073-74 (emphasis added) (citing, inter alia,
The grand-jury transcripts that Carlson seeks are not like privately produced civil discovery that never makes it through the courthouse door. They are created under the authority of the grand jury, and they remain at all times under the power of the court. The Supreme Court has said that “[a]t the foundation of our federal government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States.” Blair, 250 U.S. at 280. A grand jury cannot create any materials without the power of the court being used to empanel the grand jury and issue and enforce its subpoenas. Levine, 362 U.S. at 617. Grand-jury transcripts are produced under “the supervision of” the district court, Branzburg, 408 U.S. at 688, and as a result they represent an exercise of the court‘s power; they are “filed with the court,” Bond, 585 F.3d at 1073. They constitute a form of judicial papers.
Because grand-jury transcripts are, in their very nature, judicial documents (just as a transcript of a trial would be), there is no need for them to become part of the judicial proceeding through admission into evidence. Smith v. U.S. Dist. Court for S. Dist. of Ill., 956 F.2d 647, 650 (7th Cir. 1992) (judicial records to which there is a presumptive right of access include “transcripts of proceedings” and “items not admitted into evidence“). Thus, the presumptive right of access attaches and is sufficient to “give members of the public standing.” Bond, 585 F.3d at 1073-74. Carlson asserts a common-law right, and is therefore unlike the journalist in Bond who could point to “no constitutional or common-law right” to un-filed pre-trial
2
Our conclusion that the records Carlson is seeking are court records makes it unnecessary for us to reach his alternative arguments: that they are agency records to which he has a statutory right of access under the Freedom of Information Act,
B
The next question is whether the district court was authorized to entertain this case. We are satisfied that it was. The court had federal-question jurisdiction under
III
A
With the jurisdictional brush cleared away, we are ready to reach the merits. The institution of the grand jury reaches as far back as twelfth century England, when the common law itself was developing. See, e.g., Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1 (1996); Alfredo Garcia, The Fifth Amendment: A Comprehensive and Historical Approach, 29 U. TOL. L. REV. 209, 227-34 (1998). In the United States, it has been understood as “a constitutional fixture in its own right” that operates “in the courthouse and under judicial auspices.” Williams, 504 U.S. at 47.
The grand jury is not a free-floating institution, accountable to no one. It is an “arm of the court,” and thus falls under the supervisory authority of the district court. See Levine, 362 U.S. at 617. It thus follows, as the Supreme Court confirmed both before and after the Criminal Rules were adopted, that the disclosure of sealed grand jury materials is “committed to the discretion of the trial judge.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) (after the Rules were adopted); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (before). The question is how the Federal Rules of Criminal Procedure, and in particular
The matters over which the court exercises supervisory authority range from the mundane to the weighty. They include routine decisions regarding the daily operation of the grand jury when
Given the grand jury‘s role as an independent body, however, the district court‘s supervisory power is “a very limited one.” Williams, 504 U.S. at 50. It does not “permit judicial reshaping of the grand jury institution.” Rather, it may be used only to “preserve or enhance the traditional functioning” of the grand jury. Id. For example, a district court does not have the power to order a prosecutor to present exculpatory evidence to a grand jury. Such an order would be inappropriate because, rather than “enhancing the traditional functioning” of a grand jury, it would “alter the grand jury‘s historical role.” Id. at 50-51.
Yet this limited inherent supervisory power has historically included the discretion to determine when otherwise secret grand-jury materials may be disclosed. Prior to the adoption of the Federal Rules of Criminal Procedure, the Supreme Court held that release of sealed grand jury materials “rests in the sound discretion of the [trial] court” and “disclosure is wholly proper where the ends of justice require it.” Socony-Vacuum Oil Co., 310 U.S. at 233-34.
The advent of the Criminal Rules did not eliminate a district court‘s inherent supervisory power as a general matter.
The Supreme Court has repeatedly stated that permissive rules do not “abrogate the power of the courts” to exercise their historic “inherent power” when doing so does not contradict a rule. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (with respect to
This general principle applies to
B
The government urges, however, that there is a textual basis in the rule that supports its position. We therefore turn to a closer examination of the Rule‘s language.
Subsection (E), that is,
(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 indictment because of a matter that occurred before the grand jury; ...
and at the request of (iii) a foreign government; (iv) tribal government; or (v) U.S. military, all for the purpose of enforcing their respective criminal laws.
The government‘s primary textual argument is that the phrase “[u]nless these rules provide otherwise,” which appears only in
It is far more reasonable to read
Nor can we find language elsewhere in the rule supporting the government‘s exclusivity theory. The government suggests that it is helped by
The few hints that we find in the text of
The history of the rules and the Committee Notes also support our reading of
The government also finds solace in the history of some unsuccessful efforts to change the rules, but this is notoriously unreliable evidence, even for those who are sympathetic to legislative history. And in any event, the Advisory Committee on Criminal Rules noted in the minutes of its meeting that it saw no need for the amendments because the courts had inherent power. We give this history no weight one way or the other.
Finally, we consider the decisions of our sister circuits. There, too, the government stands alone: no court has accepted its position. The Second, Eleventh, and D.C. Circuits have all considered the issue and
The Second Circuit‘s reasoning in Craig is the most comprehensive. In Craig, a historian petitioned for the transcript of the grand jury investigation of Harry Dexter White, an Assistant Secretary of the Treasury accused in 1948 of being a communist spy. Craig, 131 F.3d at 101. The court held that a district court has the inherent power to disclose the materials in exceptional circumstances and noted that historic importance can be a sufficient reason when there is little countervailing need for secrecy. Id. at 105. It emphasized that this inherent power is “consonant with the role of the supervising court and will not unravel the foundations of secrecy upon which the grand jury is premised.” Id. at 103. Thus, given the great weight of authority against the government‘s position, it “reject[ed] the government‘s suggestion that [the court] unsettle this area of good law.” Id. This accords with the Eleventh Circuit‘s comprehensive analysis in Hastings, and the D.C. Circuit‘s briefer reasoning to the same effect in Haldeman. See Hastings, 735 F.2d at 1268; Haldeman, 501 F.2d at 715.
We have already gone so far as to say, in dicta, that “[w]e may not always be bound by a strict and literal interpretation of
The government argues that these opinions are no longer good law after Carlisle and Bank of Nova Scotia. That point falls flat. The Second Circuit‘s Craig decision post-dates both Carlisle and Bank of Nova Scotia, and the government cited them both to that court. And in any event, all that Carlisle and Bank of Nova Scotia say is that a court may not directly contradict a Rule. We have already explained why Carlson is asking for no such thing.
We are persuaded by the logic of Carlson‘s arguments and the approach of our sister circuits, with whom we now join. The text and history of the Rules indicate that
IV
Given that the district court did have the power to exercise its discretion to determine whether to release the requested grand jury materials, the only remaining question is whether it abused that discretion. The government concedes that it did not, and we see nothing in this record that would justify a contrary finding, even had this point not been waived. The district court engaged in a thoughtful and comprehensive analysis of the pros and cons of disclosure before granting Carlson‘s request, and we are content to let its analysis stand.
The district courts retain certain inherent powers, as the Supreme Court reaffirmed in Dietz. One such power relates to their supervision of the disclosure of grand-jury materials. We join with our sister circuits in holding that
SYKES, Circuit Judge, dissenting.
The United States objected, arguing that the secrecy exceptions are exclusive and the court has no authority to disclose grand-jury materials in circumstances not specified in
My colleagues likewise adopt the permissive interpretation and affirm the district court‘s order unsealing the 70-year-old grand-jury materials. I respectfully dissent. In my view, the government‘s interpretation of
The next subsection imposes a broad secrecy norm:
(2) Secrecy.
...
(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).
The very next subsection contains the exceptions to the secrecy rule. As I‘ve noted, most of the exceptions pertain to the authority of the government‘s lawyers to disclose grand-jury materials to other grand juries and to governmental officials as necessary to perform law-enforcement duties in specified circumstances. See
The exception at issue here pertains to the court‘s authority to unseal grand-jury records. It states as follows:
(E) The court may authorize disclosure—at a time, in a manner, and subject to any other 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 indictment because of a matter that occurred before the grand jury; ...
or at the request of the government‘s lawyer when the records are sought by (iii) a foreign government; (iv) a tribal government; or (v) a U.S. military official for the purpose of enforcing their respective criminal laws.
Three of the five circumstances on this list require a request from the government.
It‘s easy to see (and everyone agrees) that none of these exceptions even arguably applies to the petitioners’ request, which is not made by the government or a defendant and has nothing to do with a judicial proceeding. My colleagues, however, read the list of exceptions as permissive, not exhaustive. As they see it, the limiting language in subsection (e)(2)(B)—“unless these rules provide otherwise“—is confined to the secrecy provision (where it appears) and has no effect on the operation of the exceptions. On this reading the exceptions are nonexclusive, leaving the district court with residual inherent authority to disclose grand-jury materials to persons and for purposes not identified in the rule. With respect, I cannot agree.
In my view, the secrecy requirement and its exceptions must be read together as an integrated whole. After all, the provisions appear sequentially and work together. First, subsection (e)(2)(B) imposes a strict nondisclosure rule “unless these rules provide otherwise.” Next, subsection (e)(3) creates a few narrowly tailored exceptions, one of which empowers the court to disclose grand-jury materials to specified persons in specified circumstances. The limiting language in the secrecy provision necessarily means that the exceptions are a closed set: Subsection (e)(2)(B) mandates grand-jury secrecy “unless these rules provide otherwise“; the exceptions in subsection (e)(3) “provide otherwise,” but the court‘s authority to override the secrecy norm is limited to the particular circumstances specified in
As my colleagues interpret the rule, the limiting language in the secrecy provision has no bearing at all on the exceptions; the phrase “unless these rules provide otherwise” is “buried” in subsection (e)(2)(B) and cannot “secretly appl[y]” to the exceptions, which are found in “an entirely different subpart” of the rule. Majority op. at 764. 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.
Indeed, the Supreme Court has recognized that
It goes without saying that the district court‘s inherent authority does not include the power to contravene or circumvent an “express grant of or limitation on the court‘s power contained in a rule or statute.” Dietz v. Bouldin, — U.S. —, 136 S.Ct. 1885, 1892, 195 L.Ed.2d 161 (2016); see also Carlisle v. United States, 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (“Whatever the scope of [the court‘s] ‘inherent power,’ ... it does not
To read the exceptions as permissive rather than exclusive disregards the text of the rule, which mandates secrecy “unless these rules provide otherwise.” The straightforward meaning of this text is that grand-jury secrecy may not be breached except as specifically provided in the rules. To give effect to this limiting language, the list of authorized disclosures in subsection (e)(3)(E) must be interpreted as exclusive, not merely exemplary, leaving the court with no residual authority to disclose grand-jury records to persons and for reasons not covered by the rule—not even reasons of historical significance, surely a beneficial purpose, but one not addressed in the rule.
Accordingly, I cannot join the majority‘s decision to endorse the approach taken by the Second and Eleventh Circuits, both of which have held that the district court retains inherent authority to disclose grand-jury materials in “special circumstances” outside the confines of
On the other hand, the Eighth Circuit interprets the rule as I do. That circuit treats the secrecy exceptions in
Finally, even if the district court retains some residual inherent authority to disclose grand-jury records outside the circumstances specified in
Williams thus reaffirmed the principle that the grand jury is operationally separate from and functionally independent of
It‘s hard to see how this “very limited” authority includes the sweeping power to release grand-jury records to the general public for reasons that strike the judge as socially desirable—here, historical significance. The court‘s inherent authority over its own proceedings extends only to actions that protect and vindicate the judicial process and the judicial institution itself. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 43-44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (explaining that the court‘s inherent authority includes the power to punish contempt, regulate admission to the bar, discipline attorneys for misconduct, dismiss suits for failure to prosecute, and enforce decorum in the courtroom); United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (explaining that the court‘s inherent authority includes the power to protect the integrity of judicial processes). If, as the Supreme Court held in Williams, the court‘s inherent authority over grand-jury procedure is far more limited, I doubt that it includes the power to promulgate new exceptions to grand-jury secrecy completely untethered to any judicial proceeding or for reasons wholly unrelated to the judicial process.2
Accordingly, I would reverse the district court‘s order. The court lacked the authority to unseal the Chicago Tribune grand-jury records based solely on their historical significance, a reason not addressed in