*2 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
,
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.
,
Ct. 1667, 1673 (1979).
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)
,
Ga. 2017),
aff’d sub nom. Pitch v. United States
,
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.
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 *6 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.
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.
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.
*8
United States
,
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
,
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
,
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 *10 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.
,
Procter & Gamble Co.
,
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
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,
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.
,
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
,
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
,
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 *14 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 *15 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.
,
See McKeever
,
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
*17
power to do so outside the confines of the rule.
See Carlson
,
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
,
United States
,
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
,
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.”
*19
Baggot
,
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 *21 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
,
at 48,
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 *22 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
,
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
*23
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
,
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,
See id.
at 396 n.1,
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
,
United States
,
We disagree. Like the current version of Rule 6(e), the original version of *25 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),
We read the Advisory Committee’s note as referring to the exceptions in the text of *26 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
,
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),
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) *28 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
*29
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
,
1068, 1081 (2011) (citing
District of Columbia v. Heller
,
Ct. 2783, 2805 (2008);
Jones v. United States
,
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).
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)
,
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
,
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 *33 formed a five-judge Committee, 28 U.S.C. § 372(c)(4) (1982), to investigate.
Hastings
,
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 *34 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
,
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
*35
determination to the House of Representatives.”
Hastings v. Judicial Conference of
U.S.
,
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
*36
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
,
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.
,
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).
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 *39 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
,
The definition provided by Judge Hand in
Doe
also covered the proceeding
in
Hastings
, despite the special panel’s doubts.
See Hastings
,
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
,
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
,
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
,
Our sister circuit has concluded that certain proceedings by the Fifth Circuit
Judicial Council are “judicial in nature.”
In re McBryde
,
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 *44 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
,
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
,
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.
,
In short, there is no reason to distinguish judicial disciplinary proceedings from those of attorney disciplinary proceedings or from the decision in McBryde *46 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.
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
,
Barr
,
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 *48 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 F L . S T . U. L. R EV . 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 *49 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.
,
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
,
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
,
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
,
The guidepost for disclosure in each of these pre-Rules cases was only
whether the ends of justice would be furthered.
See Metzler
,
* * * * * * * 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 *53 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,
* * * * * * * With these thoughts, I concur in the judgment. *55 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
,
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.”
[hereinafter
Hastings
].
[1]
Our reasoning in
Hastings
has been adopted by two
*56
other circuits.
See, e.g.
,
Carlson v. United States
,
2016);
In re Petition of Craig
,
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
,
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
,
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
,
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.
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
,
It is true that grand juries are functionally independent from district courts,
but they remain “an arm of the court,”
Levine v. United States
,
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
,
independence means, at a minimum, that courts’ inherent supervisory power over grand juries is
limited in nature.
See Williams
,
Therefore, courts’ supervisory power is used to “preserve or enhance the
traditional functioning of the grand jury.”
Carlson
,
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
,
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
,
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.
,
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. R EV . 921, 925 (1992); see also Astoria Fed.
Sav. & Loan Ass’n. v. Solimino
,
*63
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.
,
Wabash R.R. Co.
,
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 *64 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 *65 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
,
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
*66
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
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
,
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
,
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
,
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
,
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
,
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
,
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
*70
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.
,
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
,
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,
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.
,
P. 6 advisory committee’s notes to 1983 amendment (citing
Socony-Vacuum Oil
Co.
,
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
,
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
,
This history demonstrates that the Advisory Committee accepted and adopted these subsequent developments by adding them to the existing list of exceptions. Had *72 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 *73 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
,
2019).
“[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
,
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 *75 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.
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 *77 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.
,
(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
,
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.
,
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.
,
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; *79 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 *80 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]
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
,
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
,
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
,
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
,
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.
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
,
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
*85
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
,
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 *86 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 *87 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
,
But Supreme Court precedent shows that Congress can declare its intent
expressly or implicitly.
See Almendarez-Torres v. United States
,
v. Darlington, Inc.
,
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
,
This makes perfect sense. “With respect to subsequent legislation[,] . . .
Congress has proceeded formally through the legislative process.”
South Carolina
v. Regan
,
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 *90 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. *91 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
,
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 *92 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
,
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 *93 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
,
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 *94 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
,
Notes
[*] 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.
[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.
,
[3] We did so largely because we believed the committee’s proceeding was so “closely akin” to the judicial-proceeding exception. Id.
[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.
[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.
[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.
,
[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.
[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
,
[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
,
[11] The full text of Rule 6(e), as originally enacted, read:
S ECRECY OF P ROCEEDINGS AND D ISCLOSURE . 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),
[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.
[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.
[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.
,
[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).
[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.
[1] Before our decision in
Hastings
, the Second Circuit reached the same conclusion in
In
re Biaggi
,
[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
,
[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).
[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.
,
[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
,
[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).
[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
[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
[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.