In Re Petition Records Release v.
Brad Hinshelwood, Attorney, Civil Division, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Andrew E. Lelling, United States Attorney, and Michael S. Raab, Attorney, Civil Division, were on brief, for Appellant.
Jacob M. Schriner-Briggs,** with whom Charles Crain, Media Freedom & Information Access Clinic, Abrams Institute, Yale Law School, Jonathan M. Albano, Noah J. Kaufman, and Morgan Lewis & Bockius LLP were on brief, for Appellee.
Bruce D. Brown, Katie Townsend, Lin Weeks, and Reporters Committee for Freedom of the Press on brief for Reporters Committee for Freedom of the Press and 39 Media Organizations, amici curiae.
Scott L. Nelson, Allison M. Zieve, and Public Citizen Litigation Group on brief for American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists, amici curiae.
February 28,
KAYATTA, Circuit Judge. This case traces its origins to grand juries empaneled in 1971 to consider possible criminal charges arising out of the publication of excerpts from the so-called Pentagon Papers, a government study of the Vietnam War. At the request of historian Jill Lepore, the district court ordered the release of sealed archival records of the grand jury proceedings. The court stayed its order pending this timely appeal by the government. For the following reasons, we find that a federal court does not have the authority to order the release of grand jury records based on a finding that historical interest in the records outweighs any countervailing considerations. Accordingly, we reverse both the order of the district court and its judgment in favor of the petitioner. Our reasoning follows.
I.
Beginning in 1971, the New York Times published excerpts of the Pentagon Papers obtained from Daniel Ellsberg, an analyst who had helped prepare them. The Nixon Administration sought to enjoin their publication — to no avail. See New York Times Co. v. United States, 403 U.S. 713 (1971).1
That same year, authorities investigating how Ellsberg had obtained, copied, and
Decades later, Popkin and his grand jury experience piqued the interest of Harvard history professor and author Jill Lepore. Working on a book about Popkin‘s former employer, the Simulmatics Corporation, Lepore decided “that she needed to know more” about the grand jury investigations in which Popkin had been caught up.
Upon learning that the grand jury records she sought were under indefinite seal at the National Archives in Boston, Lepore filed a Freedom of Information Act (FOIA) request seeking their release. In short order, her request was denied “to preserve the secrecy of grand jury proceedings per
Rather than appealing the denial of her FOIA request, Lepore filed a petition in the federal district court seeking release of the records “pursuant to
II.
“Unlike an ordinary judicial inquiry, where publicity is the rule, grand jury proceedings are secret.” Levine v. United States, 362 U.S. 610, 617 (1960). Grand jury proceedings and records have been “kept from the public eye” since the 17th century. Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979). Today, this common-law “rule of grand jury secrecy” remains “an integral part of our criminal justice system.” Id. The Supreme Court has identified a “public interest in [this] secrecy,” id. at 223, explaining:
[I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are
accused but exonerated by the grand jury will not be held up to public ridicule.
Of course, secrecy can sometimes undercut other important aims. Cognizant of this fact, Congress has affirmed in
- preliminarily to or in connection with a judicial proceeding;
- 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;
- at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation;
- 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
- 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.
III.
The district court read
Unlike the district court, we do not glean from the recordkeeping provisions of
IV.
Having rejected the district court‘s finding that
A.
As a general matter, it is clear that federal courts have inherent authority to take some actions not expressly authorized
For example, courts possess inherent authority to “impose silence, respect, and decorum,” Anderson v. Dunn, 6 Wheat. 204, 227 (1821); require “submission to their lawful mandates,” id.; “fashion an appropriate sanction for conduct which abuses the judicial process,” Chambers, 501 U.S. at 44-45; “hear a motion in limine,” Dietz v. Bouldin, 579 U.S. 40, 45 (2016); entertain a “motion to dismiss for forum non conveniens,” id.; and generally to “manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases,” id. at 47 (collecting cases).
That being said, the Supreme Court long ago warned that inherent power “ought to be exercised with great caution,” Ex parte Burr, 9 Wheat. 529, 531 (1824). And it has more recently repeated that admonition. See Chambers, 501 U.S. at 44 (“Because of their very potency, inherent powers must be exercised with restraint and discretion.“); Degen, 517 U.S. at 823 (“The extent of these powers must be delimited with care, for there is a danger of overreaching when one branch of the Government, without benefit of cooperation or correction from the others, undertakes to define its own authority.“). Importantly for our purposes, the Court has twice emphasized that “the exercise of an inherent power must be a ‘reasonable response to the problems and needs’ confronting the court‘s fair administration of justice.” Dietz, 579 U.S. at 45 (quoting Degen, 517 U.S. at 823-24).
The Supreme Court in Dietz held that “district courts have a limited inherent power to rescind a discharge order and recall a jury in a civil case” — a power which should be wielded “cautiously” and whose use should be reviewed “carefully.” Id. at 54. As we will shortly explain, a district court undoubtedly has greater power to manage a trial jury than a grand jury. But we assume that the Court‘s discussions of inherent authority in Dietz are also applicable to the case at hand. In Dietz, the Court explained that it had “never precisely delineated the outer boundaries of a district court‘s inherent powers,” but had “recognized certain limits on those powers.” Id. at 45. The Court then outlined two limits on the exercise of inherent authority. One is that “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.” Id. The other is that “the exercise of an inherent power must be a ‘reasonable response to the problems and needs’ confronting the court‘s fair administration of justice.” Id. (quoting Degen, 517 U.S. at 823-24).
The Supreme Court has also recognized that courts have at least some authority over grand jury proceedings. United States v. Williams, 504 U.S. 36, 45-47 (1992). But a court‘s inherent authority over the grand jury is even narrower than its authority over matters before the court itself. Id. The Supreme Court has explained that “any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings.” Id. at 50. That is because the grand jury is an independent entity that has “not been textually assigned . . . to any of the [three] branches” of government. Id. at 47. Although the grand jury operates “under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm‘s length.” Id.
Lepore argues that the courts’ inherent authority over some aspects of grand jury proceedings, even if limited, is broad enough to empower a district court to order the release of grand jury materials in circumstances not covered by
On one side of the split, the Second and Seventh Circuits have held “that
On the other side of the split, four circuits have concluded “that
This circuit has yet to weigh in on whether
That being said, we need not decide in this case whether district courts possess some inherent authority to order the release of secret grand jury materials for reasons other than those identified in
B.
1.
As the foregoing discussion of inherent authority makes clear — both generally and in relation to grand jury proceedings — it cannot be exercised unless it is a “‘reasonable response to the problems and needs’ confronting the court‘s fair administration of justice.” Dietz, 579 U.S. at 45 (quoting Degen, 517 U.S. at 823-24). Prior to the 1944 adoption of
Our own past reliance on inherent authority in In re Grand Jury Proceedings fits comfortably within this mold: We concluded that the district court‘s order was rooted in its inherent power “to impose secrecy orders incident to matters occurring before [it].” 417 F.3d at 26. The matter at hand concerned the integrity of an ongoing grand jury proceeding, and the order was aimed at “protecting [that] grand jury investigation from further abuse by one who ha[d] already demonstrated a capacity and intention to frustrate
So while we may assume without deciding that there exists the inherent authority to order disclosure of grand jury materials in circumstances not expressly anticipated by
2.
In the last few decades, some courts have nevertheless disclosed grand jury materials because of their historical significance. See, e.g., In re Petition of Am. Hist. Ass‘n, 49 F. Supp. 2d 274, 277-78 (S.D.N.Y. 1999) (grand jury transcripts related to the espionage investigation of Alger Hiss); In re Petition of Kutler, 800 F. Supp. 2d 42, 43, 48-50 (D.D.C. 2011) (Richard Nixon‘s grand jury testimony). The circuit authority first to embrace this new justification for the exercise of inherent powers is Craig, in which the Second Circuit held that it is “entirely conceivable that in some situations historical or public interest alone could justify the release of grand jury information.” 131 F.3d at 105. The court reasoned that because the exercise of inherent authority to release grand jury records involves a “highly discretionary” and “fact-sensitive” inquiry, it precludes any rigid rule that “a certain factor — like historical interest — can never suffice as a matter of law” to permit the disclosure of grand jury records. Id. at 105-06. Rather, the court developed a non-exhaustive, nine-factor test to guide a court‘s exercise of its inherent authority. Id. at 106.
Craig‘s approach departs from the traditional, restrained approach to wielding inherent judicial powers, at least where historically significant records do not implicate any ongoing proceedings. To be sure, improving the public‘s knowledge of history can further the interests of justice as broadly understood. See generally, e.g., Jill Lepore, These Truths: A History of the United States (2018). But courts’ inherent authority concerns the administration of justice in our legal system. Toward that end, the exercise of inherent authority to order the disclosure of secret grand jury materials permits courts to “protect [legal] proceedings and judgments,” Degen, 517 U.S. at 823 — not to serve some more expansive notion of the public good. See Carlson, 837 F.3d 753 at 771 (Sykes, J., dissenting) (“It‘s hard to see how [a district court‘s] ‘very limited’ authority [over the grand jury] includes the sweeping power to release grand-jury records to the general public for reasons that strike the judge as socially desirable.” (quoting Williams, 504 U.S. at 50)).
Instead, Craig places significant weight on the fact that courts possess broad discretion in applying the
Craig does raise a fair policy question: What reason is there not to release now, for example, records of a grand jury proceeding conducted over a century ago? See 131 F.3d at 105 & n.9 (positing an imagined grand jury investigation into Abraham Lincoln‘s assassination). But the more apt question, in our view, is whether a federal judge should be the one to decide and act on that question, and in so doing resolve the additional questions that must be answered to limn the boundaries of what is disclosable based on assessments of historical significance. To name just a few such questions: How does a court determine whether particular records are historically significant?6 Can an affected party exercise veto power even if the general public has a strong interest in disclosure? And when has enough time passed — both to make records a matter of “history” and to sufficiently diminish the countervailing interest in grand jury secrecy?7
Given the “restraint” that ought to govern courts’ use of their inherent authority, Chambers, 501 U.S. at 44, such an endeavor strikes us as too far removed from the more specific interest — “the court‘s fair administration of justice” — that provides the principal and principled limitation on a court‘s exercise of inherent authority, Dietz, 579 U.S. at 45. And
These observations lead us to reject the reasoning of those few courts that have relied on their inherent authority to order disclosure of grand jury materials based on historical significance absent a need to ensure the fair administration of justice in a legal proceeding. Given this conclusion, we need not and do not define the exact contours of a court‘s inherent power to disclose grand jury materials when the fair administration of justice in a proceeding is at issue.10
3.
Three loose ends remain. First, Lepore argues that courts have latitude to disclose grand jury records because they are judicial records. But calling grand jury records judicial records does not change our calculus. We recognize that in general a court has “supervisory power over its own records and files.” Nixon v. Warner Commc‘ns, Inc., 435 U.S. 589, 597-98 (1978). But a court‘s power over grand jury records is surely diminished by its “arm‘s-length” relationship to the grand jury. Williams, 504 U.S. at 47. More fundamentally, we have assumed that courts do indeed retain some inherent power to disclose grand jury records. The question in this case is the proper scope of that power. Pointing to the mere fact that grand jury records may be called judicial records does not meaningfully advance the resolution of that question.
Second, Lepore insists that disclosing historically significant records would not
Finally, Lepore argues that the Advisory Committee on Criminal Rules understands courts to possess inherent authority to disclose historically significant materials. She relies on meeting minutes from 2012 — more than three decades after Congress enacted relevant provisions of
V.
For the foregoing reasons, we reverse both the order of the district court requiring the disclosure of the grand jury materials and the judgment entered in favor of petitioner.