In Re Motions of Dow Jones & Co.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 1998 Decided May 5, 1998

No. 98-3033

In re: Motions of Dow Jones & Company, Inc., et al.

Consolidated with

No. 98-3034

Appeals from the United States District Court

for the District of Columbia

(98ms00058)

(98ms00087)

Theodore J. Boutrous, Jr. argued the cause and filed the

briefs for appellants.

W. Neil Eggleston argued the cause for appellee The White

House. With him on the brief was Charles F.C. Ruff, Coun-

sel to the President.

David E. Kendall argued the cause for appellee President

William J. Clinton. With him on the brief was Max Stier.

Jamie S. Gardner argued the cause for appellee Francis D.

Carter, Esq. With her on the brief was Charles J. Ogletree,

Jr.

Nathaniel H. Speights argued the cause and filed the brief

for appellee Monica Lewinsky.

Before: Randolph, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: On January 16, 1998, at the

request of the Attorney General, a special division of this

court issued an order expanding the prosecutorial jurisdiction

of Independent Counsel Kenneth W. Starr.1 The order--

which the special division released to the public--authorized

Starr to investigate "whether Monica Lewinsky or others

suborned perjury, obstructed justice, intimidated witnesses,

or otherwise violated federal law ... in dealing with wit-

nesses, potential witnesses, attorneys, or others concerning

the civil case Jones v. Clinton"; and "to investigate any

person or entity who has engaged in unlawful conspiracy or

who has aided or abetted any federal offense, as necessary to

resolve" the first matter.

Thereafter, a grand jury here began receiving evidence

about Monica Lewinsky and President Clinton, and others, or

so appellants in this case tell us. Since mid-January the

press has staked out the courthouse, photographing and

attempting to intercept anyone who, because of his or her

suspected status as witness or lawyer in the investigation,

might shed light on the grand jury's progress. Some individ-

uals have paused to give their versions of what transpired

during their grand jury appearances; others have refused to

be interviewed or to give a public statement.

The press, naturally desiring more information, moved for

access to district court hearings and pleadings related to the

grand jury's investigation.2 Under Rule 407(3) of the United

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1 Judges Sentelle, Butzner, and Fay sit on the Division for the

Purpose of Appointing Independent Counsels.

2 Appellants are Dow Jones & Company, Inc.; the Los Angeles

Times; ABC, Inc.; the Associated Press; Cable News Network,

States District Court for the District of Columbia, the Chief

Judge shall "hear and determine all matters relating to

proceedings before the grand jury." D.D.C.R. 407(3). Such

"ancillary" matters may arise for a number of reasons.

Grand juries summon witnesses and documents with subpoe-

nas. Witnesses, including custodians of documents, report on

the scheduled date not to a courtroom, but to a hallway

outside the room where the grand jury is sitting. The

witness must enter the grand jury room alone, without his or

her lawyer. No judge presides and none is present. See

Sara S. Beale et al., Grand Jury Law and Practice s 4.10, at

4-44 (2d ed. 1997). Inside the grand jury room are sixteen to

twenty-three grand jurors, one or more prosecuting attor-

neys, and a court reporter. 18 U.S.C. s 3321; Fed. R. Crim.

P. 6(a)(1), (d) & (e). The witness is sworn, and questioning

commences, all to the end of determining whether "there is

adequate basis for bringing a criminal charge." United

States v. Williams, 504 U.S. 36, 51 (1992). Other than

witnesses, each person present in the grand jury room or

otherwise assisting the prosecutor is forbidden from disclos-

ing "matters occurring before the grand jury," Fed. R. Crim.

P. 6(e)(2) & (3)(A)(ii).

"Although the grand jury normally operates, of course, in

the courthouse and under judicial auspices, its institutional

relationship with the Judicial Branch has traditionally been,

so to speak, at arm's length." Williams, 504 U.S. at 47.

Still, at many points, from service of the subpoena through

the completion of the witness's grand jury appearance, judi-

cial proceedings relating to the grand jury may take place.

The judge may be called upon to decide a witness's motion to

postpone the date of testimony or to quash the subpoena. If

a witness refuses to answer questions on the basis of a

testimonial privilege, such as attorney-client or husband-wife,

the grand jury may seek a court order compelling the witness

to answer. This may be done forthwith, through an oral

__________

Inc.; CBS Broadcasting, Inc.; Fox News Network; National

Broadcasting Company, Inc.; The New York Times Company;

Time Inc.; USA Today; and The Washington Post.

presentation to the court, see, e.g., Levine v. United States,

362 U.S. 610, 612 (1960), or upon the filing of pleadings,

followed by a hearing. A hearing will also be needed if a

witness asserts his or her privilege against self-incrimination,

and the prosecutor seeks an order from the court granting

the witness immunity. See 18 U.S.C. s 6003(a).

These appeals are from the Chief Judge's denial of motions

concerning two such ancillary proceedings and from her

denial of a broader motion to govern access to all future

ancillary proceedings stemming from the grand jury's investi-

gation.3 In chronological order, the press filed its first

motion on March 5th, seeking "access to any and all proceed-

ings and papers ... as well as any orders or rulings issued by

the Court concerning assertions by Francis D. Carter of

objections to the grand jury subpoena." The motion also

requested "access to transcripts" of hearings to the extent

they had "already occurred." (Carter, we are told, was an

attorney for Monica Lewinsky.) Next, on March 9th, the

press moved for the establishment of "procedures relating to

public access to judicial proceedings and records in connec-

tion with the investigation being conducted by Independent

Counsel Kenneth W. Starr." On March 11th, the press

moved for "access to any hearings, and transcripts of such

hearings ... concerning the motion to show cause filed by

President Clinton against Independent Counsel Kenneth W.

Starr for alleged violations of grand jury secrecy."

We will take up first the motion requesting the Chief Judge

to establish procedures governing public access to the hear-

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3 While no one has questioned our jurisdiction to hear these

appeals, we have assured ourselves that appellate jurisdiction exists.

See 28 U.S.C. s 1291; Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949); In re Reporters Comm. for Freedom of the Press,

773 F.2d 1325, 1330 (D.C. Cir. 1985). We are also certain that

although part of the case deals with the Chief Judge's refusal to

allow the press to attend hearings now concluded, the capable-of-

repetition-yet-evading-review doctrine saves the case from moot-

ness. See Gannett Co. v. DePasquale, 443 U.S. 368, 377-78 (1979);

Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478

U.S. 1, 6 (1986).

ings and to papers in all of the proceedings relating to the

grand jury. Although the press framed its motion in terms of

access to proceedings "to resolve privilege claims or other

legal issues," it seems mainly interested in proceedings in-

volving the assertions of testimonial privileges in response to

grand jury subpoenas, and in President Clinton's motion for

an order to show cause why the Office of the Independent

Counsel should not be found in contempt. Among other

things, the press requested the Chief Judge to provide ad-

vance public notice of hearings; to grant its counsel opportu-

nity to be heard regarding closure; and to require "all

motions, orders, and other judicial records filed in connection

with the grand jury proceeding be docketed on the public

record." The Chief Judge ruled that the press had neither a

common law nor a First Amendment right of access and

declined to adopt "movants' extraordinary procedures." The

Chief Judge also found it "inappropriate and contrary to Rule

6(e) to require any materials filed in connection with grand

jury proceedings to be docketed on the public record or

unsealed without an express order from this Court. Even

releasing the matters to be heard by the Court runs the risk

of disclosing 'matters occurring before the grand jury.' Fed.

R. Crim P. 6(e)." The press maintains that the "blanket

closure of judicial proceedings" and the failure to provide

"procedural safeguards prior to closure" violate the First

Amendment. See Brief for Appellants at 9.

A settled proposition, one the press does not contest, is

this: there is no First Amendment right of access to grand

jury proceedings. The Fifth Amendment makes the "Grand

Jury" an essential element of the federal criminal justice

system. A grand jury is a body that conducts its business in

private. The Framers knew this as well as we do. "Since

the 17th century, grand jury proceedings have been closed to

the public, and records of such proceedings have been kept

from the public eye." Douglas Oil Co. v. Petrol Stops

Northwest, 441 U.S. 211, 218 n.9 (1979); see also United

States v. Procter & Gamble, 356 U.S. 677, 681 (1958); Pitts-

burgh Plate Glass Co. v. United States, 360 U.S. 395, 399

(1959).

The secrecy of grand jury proceedings is today preserved

through Fed. R. Crim. P. 6(e). Grand jurors, prosecutors,

stenographers and others are forbidden from disclosing "mat-

ters occurring before the grand jury." 4 This phrase--"mat-

ters occurring before the grand jury"--includes not only what

has occurred and what is occurring, but also what is likely to

occur. Encompassed within the rule of secrecy are "the

identities of witnesses or jurors, the substance of testimony"

as well as actual transcripts, "the strategy or direction of the

investigation, the deliberations or questions of jurors, and the

like." SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.

Cir. 1980) (en banc); Fund for Constitutional Gov't v. Na-

tional Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir.

1981).

With respect to ancillary judicial proceedings, "the court

shall order a hearing on matters affecting a grand jury

proceeding to be closed to the extent necessary to prevent

disclosure of matters occurring before a grand jury." Fed. R.

Crim. P. 6(e)(5).5 Furthermore, "records, orders and subpoe-

nas relating to grand jury proceedings shall remain under

seal to the extent and for such time as necessary to prevent

disclosure of matters occurring before a grand jury." Fed. R.

Crim. P. 6(e)(6). The Advisory Committee believed that the

rules did "not violate any constitutional right of the public or

media to attend" such ancillary proceedings because no such

constitutional right exists. Fed. R. Crim. P. 6(e)(5) advisory

__________

4 Rule 6(e)(2) General Rule of Secrecy.

A grand juror, an interpreter, a stenographer, an operator of

a recording device, a typist who transcribes recorded testimo-

ny, an attorney for the government, or any person to whom

disclosure is made under paragraph 3(A)(ii) of this subdivision

shall not disclose matters occurring before the grand jury,

except as otherwise provided for in these rules. No obligation

of secrecy may be imposed on any person except in accordance

with this rule. A knowing violation of Rule 6 may be punished

as a contempt of court.

5 "Counsel or others allowed to be present at the closed hearing

may be put under a protective order by the court." Fed. R. Crim.

P. 6(e)(5) advisory committee's note.

committee's note. The Supreme Court and Congress must

have thought the same. See Supreme Court Order of April

28, 1983, authorizing the Chief Justice to transmit then-

proposed Rules 6(e)(5) and 6(e)(6) to Congress.

In light of Rule 6(e), the constitutionality of which is not

questioned, the press must take a narrow view of the purport-

ed First Amendment right of access. It cannot, and does not,

claim a right to attend every minute of every hearing ancil-

lary to the grand jury's investigation and it does not seek full

disclosure of all pleadings and other papers filed in connection

with such hearings. The press is not entitled, by the Consti-

tution or by rule, to information about "matters occurring

before the grand jury." But the press thinks the First

Amendment entitles it to whatever else remains.

As to pleadings and papers, the press has no basis for

complaint. A rule of the district court, not mentioned in the

press's opening or reply brief, gives it the most it could

expect from its constitutional claim. Local Rule 302 deals

with motions, applications, and orders "filed in connection

with a grand jury subpoena or other matter occurring before

a grand jury." 6 "Papers, orders, transcripts of hearings

subject to this Rule, or portions thereof, may be made public

by the Court on its own motion or on motion of any person

upon a finding that continued secrecy is not necessary to

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6 Local Rule 302 provides:

A motion or application filed in connection with a grand jury

subpoena or other matter occurring before a grand jury, all

other papers filed in support of or in opposition to such a

motion or application, and all orders entered by the Court in

connection therewith, shall be filed under seal. Such a motion

or application shall be assigned a Miscellaneous case number.

All hearings on matters affecting a grand jury proceeding shall

be closed, except for contempt proceedings in which the alleged

contemnor requests a public hearing. Papers, orders and

transcripts of hearings subject to this Rule, or portions thereof,

may be made public by the Court on its own motion or on

motion of any person upon a finding that continued secrecy is

not necessary to prevent disclosure of matters occurring before

the grand jury.

prevent disclosure of matters occurring before the grand

jury." D.D.C.R. 302.7 A portion of a transcript filed in these

appeals and the representations of non-press counsel at oral

argument convince us that the Chief Judge is implementing

Rule 302 by redacting documents. It appears that any delay

in the release of redacted documents is, at least in part,

attributable to some of the attorneys who participated in the

__________

7 Other district courts similarly implement Fed. R. Crim. P.

6(e)(5) and (6). See, e.g., C.D. Cal. R. 8.3 (proceedings involving

applications for immunity, motions to quash subpoenas, and "other

contested matters affecting grand jury proceedings prior to the

indictment stage" shall be "closed to the public"); N.D. Ill. R. 1.04

("all records ... which relate to grand juries including grand jury

subpoenas ... docket of grand jury proceedings, motions and

orders relating to grand jury subpoenas ... shall be suppressed

and released only on order of the Chief Judge"); S.D. Ind. R. 10.1(c)

("All motions, orders, and other filings pertaining to matters before

[the] grand jury shall ... be maintained by the Clerk under seal,

without necessity for a motion to seal or order"); D. Mass. R.

106.1(b) (all subpoenas, motions, pleadings, and other documents

filed with the clerk concerning or contesting grand jury proceedings

shall be sealed and impounded unless otherwise ordered by the

court); E.D. Mich. R. 6.1 ("a motion or application filed in connec-

tion with a grand jury subpoena or other matter occurring before a

grand jury, all other papers filed in support of or in opposition to

such a motion or application, and all orders entered by the Court in

connection therewith, shall be filed under seal"); D. Mont. R. 105-4

("grand jury matters, praecipes, subpoenas and returns will not be

disclosed ... without an order of court"); E.D. Pa. R. 6.1(c)(4) ("all

motions, affidavits or other papers relative to legal proceedings

relating to grand jury investigations shall be automatically im-

pounded, i.e., filed under seal by the Clerk of the Court"); M.D.

Tenn. R. 6(b)(4) ("[a]ll matters pertaining to the grand jury ...

shall be placed and maintained under seal by the Clerk of the Court

absent a specific order from a district judge to the contrary"); W.D.

Wash. R. 6(h)(2) (clerk "shall accept for filing under seal without the

need for further judicial authorization all motions and accompanying

papers designated by counsel as related to Grand Jury matters");

E.D. Wis. R. 21.01 ("all subpoenas, motions, pleadings and other

documents ... concerning or contesting ongoing grand jury pro-

ceedings shall be treated as sealed documents").

ancillary proceedings and who were ordered some time ago to

prepare redacted copies for the Chief Judge's review. The

Chief Judge's adherence to Rule 302 is also demonstrated by

her order of February 24, 1998, granting the press's motion

to unseal certain papers filed by President Clinton in connec-

tion with his motion for an order to show cause.

As to attendance at ancillary hearings, local Rule 302

states, "All hearings on matters affecting a grand jury pro-

ceeding shall be closed, except for contempt proceedings in

which the alleged contemnor requests a public hearing."

Rule 302 could be read as requiring the courtroom to be

closed regardless of whether the hearing will reveal matters

occurring before the grand jury. We seriously doubt that

this reading is correct. Given Rule 6(e)(5)--ancillary pro-

ceedings shall "be closed to the extent necessary to prevent

disclosure of matters occurring before a grand jury"--local

Rule 302 appears to mean only that, as an initial matter, all

proceedings relating to the grand jury shall be closed, subject

to an order opening the proceedings. On the limited record

we have before us, we cannot be certain how the Chief Judge

has interpreted the local rule. At any rate, the press has

mounted no direct argument against the constitutionality of

Rule 302; as we said before, its briefs do not even mention it.

Whether, on the stricter reading, the rule would exceed the

district court's authority to implement Rule 6(e)(5) is there-

fore an issue that has not been properly raised and one we do

not decide. See Fed. R. Crim. P. 57(a)(1) (providing that

district court rules "shall be consistent with" Acts of Con-

gress and rules adopted pursuant to 28 U.S.C. s 2072).

As a matter of judicial administration, initially closing all

ancillary proceedings makes good sense. If a hearing is

about something "affecting" a grand jury investigation, there

will nearly always be a danger of revealing grand jury

matters.8 Consider a challenge to a witness's claim of a

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8 District court hearings on the motions filed by the press in

this matter are of course an exception. These motions related to

the grand jury but obviously revealed nothing about its workings.

For that reason, we ordered the Chief Judge's orders denying the

testimonial privilege. The prosecutor appears before the

Chief Judge seeking an order to compel testimony. The

witness's identity, the fact that he was subpoenaed to testify,

the fact that he invoked the privilege in response to ques-

tions, the nature of the questions asked--all these would be,

according to our precedent, SEC v. Dresser Industries, Inc.,

628 F.2d at 1382, "matters occurring before the grand jury."

To suppose that the First Amendment compels the court to

conduct such hearings by placing the witness behind a screen

and by emptying the courtroom each time a grand jury

matter reaches the tip of an attorney's or the judge's tongue

is to suppose the ridiculous. We fully agree with Judge

Becker, writing for the court in United States v. Smith, 123

F.3d 140, 153 (3d Cir. 1997), that "courts cannot conduct their

business that way," nor should they be compelled to do so.

Of course, some ancillary proceedings might be conducted

in such a way that there is no danger of grand jury matters

being revealed. Rule 6(e)(5) binds the courts of appeals (and

the Supreme Court) as well as the district courts. See Fed.

R. Crim. P. 1 & 54(a). In cases on appeal from orders issued

in ancillary proceedings, which we usually caption "In re

Sealed Case," we have sometimes taken portions of briefs and

other papers under seal, and then held the oral argument in

open court after assuring ourselves that no grand jury matter

would be discussed. On other occasions, we have closed the

courtroom for oral argument. In administering Rule 6(e)(5),

appellate courts have a comparative advantage over district

courts. We do not hear from witnesses. Oral arguments on

appeal are always preceded by written arguments, usually

filed well in advance. The briefs refine the legal points of

contention and enable us to determine whether discussion of

grand jury matters at oral argument will be needed. In the

district court, ancillary proceedings generally proceed at a

more rapid pace, the proceedings are typically not as struc-

tured, issues are not always as highly refined, witnesses may

__________

motions to be unsealed. We think it safe to say that ancillary

hearings of this sort are not the focus of the press's First Amend-

ment claim.

be present, and written presentations may be abbreviated. A

proceeding in the district court to quash a subpoena, or to

compel testimony, or to immunize a witness would, it seems

to us, almost invariably reveal matters occurring before the

grand jury, and thus may properly be closed to the public.

In ancillary proceedings dealing with other subjects, however,

it may be difficult to determine at the outset whether grand

jury matters might wind up being discussed. In all events, if

the Chief Judge can allow some public access without risking

disclosure of grand jury matters--either because the subject

of the proceeding removes the danger or because the pro-

ceedings may be structured to prevent the risk without

disruption or delay (see United States v. R. Enterprises, 498

U.S. 292, 298 (1991))--Rule 6(e)(5) contemplates that this

shall be done. But it will be done because the Federal Rules

of Criminal Procedure confer this authority on district courts,

not because the First Amendment demands it.

Recognizing a First Amendment right to force ancillary

proceedings to be conducted without referring to grand jury

matters would create enormous practical problems in judicial

administration, and there is no strong history or tradition in

favor of doing so. The Supreme Court ruled in Gannett Co.

v. DePasquale, 443 U.S. 368 (1979), that the First Amend-

ment did not entitle members of the media to attend a

pretrial suppression hearing, at least so long as they could

receive copies of the transcript at a later date after the

danger of prejudice to the defendant had passed. The Court

reached the opposite conclusion in Press-Enterprise Co. v.

Superior Court (Press-Enterprise II), 478 U.S. 1, 12, 13

(1986), holding that a "qualified First Amendment right of

access attaches to preliminary hearings in California"--that

is, probable cause hearings "sufficiently like a trial to justify"

the conclusion that they should be open. One of the main

differences between the two cases was that although the

"near uniform practice of state and federal courts has been to

conduct preliminary hearings in open court," Press-

Enterprise II, 478 U.S. at 10; see also id. at 8, the Court in

Gannett could identify no long-standing tradition of public

access to pretrial suppression hearings. 443 U.S. at 384-93.

There is likewise no such tradition regarding ancillary pro-

ceedings relating to the grand jury. See, e.g., Levine, 360

U.S. at 615, stating with regard to such a proceeding, "the

courtroom had been properly, indeed, necessarily cleared." 9

The press directs us to a 1980 report by the General Account-

ing Office--a report concerning the need to improve grand

jury secrecy before the adoption of Rules 6(e)(5) and 6(e)(6)--

as evidence that there is a "tradition of accessibility" to

ancillary hearings. See Brief for Appellants at 17-19. The

GAO Report, however, did not suggest that there was any

widespread or longstanding history of openness. Rather,

GAO discovered a divergence of opinion among judges about

whether "proceedings ancillary to the grand jury proceedings

... should be open to the public." Comptroller General,

More Guidance and Supervision Needed Over Federal Grand

__________

9 In this Circuit, proceedings concerning compliance with grand

jury subpoenas and objections to subpoenas on the ground of

privilege are sealed in the district court. See Sealed v. Sealed, No.

95-446 (D.D.C. filed Dec. 12, 1995), rev'd and remanded, In re

Sealed Case, 124 F.3d 230 (D.C. Cir. 1997) (motion to quash on

grounds of attorney-client and work-product privileges), cert. grant-

ed sub nom. Swidler & Berlin v. United States, 118 S. Ct. 1358

(1998); Sealed v. Sealed, No. 95-377 (D.D.C. filed Nov. 6, 1995),

rev'd and remanded, In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)

(action to compel production of subpoenaed documents which were

withheld on basis of attorney-client privilege and work product

immunity). Other courts also routinely close hearings on motions

to quash grand jury subpoenas. See In re Grand Jury Proceed-

ings, 867 F.2d 539, 540 n.1 (9th Cir. 1988) ("All documents and

briefs in this matter have been filed under seal to protect the

secrecy of ongoing grand jury proceedings. The true names of

appellant Doe and his former attorney Mary Roe are not revealed

in this opinion."); In re Two Grand Jury Subpoenae Duces Tecum,

769 F.2d 52, 53 (2d Cir. 1985) ("Appellant is the custodian of records

of a corporation whose name, along with the briefs and records in

this case, remains under seal to protect the secrecy of the grand

jury proceedings."); In re Grand Jury Empanelled March 8, 1983,

579 F. Supp. 189, 192 (E.D. Tenn. 1984) (ordering that hearings

relating to motions to quash grand jury subpoenas be closed and

"motions, responses to motions, and briefs which tend to reveal the

substance of grand jury subpoenas" be sealed).

Jury Proceedings 5 (1980). "Of the 15 judges we interviewed

in 6 districts, 7 routinely hold preindictment proceedings in

open court, 4 routinely close them, and 4 decide when to open

or close them on a case-by-case basis." Id. at 8-9. We

therefore agree with Smith, 123 F.3d at 149, that neither the

press nor any member of the public has a First Amendment

right to demand that the Chief Judge conduct open ancillary

hearings in a way that would not reveal grand jury matters.

Accord In re Grand Jury Subpoena (John Doe No. 4), 103

F.3d 234, 242 (2d Cir. 1996); In re Subpoena to Testify Before

Grand Jury Directed to Custodian of Records, 864 F.2d 1559

(11th Cir. 1989).

The press also tells us that, at least with respect to

disputes about executive privilege, there is a tradition of open

proceedings. See Brief for Appellants at 11-14. Many of the

instances identified, however, arose in response to congres-

sional inquiries, or trial subpoenas, the most famous of which

is United States v. Nixon, 418 U.S. 683 (1974). It is true that

Chief Judge Sirica held an open hearing on President Nixon's

very public refusal to comply with a grand jury subpoena

duces tecum on the grounds of executive privilege. See In re

Grand Jury Subpoena, 360 F. Supp. 1, 9 (D.D.C. 1973). But

this example surely proves too much. Chief Judge Sirica's

opinion, and we assume the transcript of the hearing itself,

contains references to numerous "matters occurring before

the grand jury" within Rule 6(e)'s meaning. See, e.g., id. at 3,

10, 11. Yet in this case the press concedes that the First

Amendment confers no right of access to such matters.

Furthermore, Chief Judge Sirica conducted the hearing be-

fore adoption of Rule 6(e)(5). As against this example stands

the most recent case we heard dealing with an assertion of

executive privilege during a grand jury proceeding. In that

case, the district court closed the hearing to the public and

our opinion revealed no grand jury matter. See Sealed v.

Sealed, No. 95-192 (D.D.C. filed June 7, 1995), vacated and

remanded, In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).

There can be no doubt that assertions of executive privilege

are rightly matters of intense public interest. But there have

been too few examples of open ancillary hearings dealing with

the privilege in the grand jury context to suggest any kind of

trend, let alone an "unbroken, uncontradicted history." Rich-

mond Newspapers v. Virginia, 448 U.S. 555, 573 (1980)

(Burger, C.J.); see also id. at 565-68. There also can be no

doubt of the value of public scrutiny of assertions of executive

privilege. But as the Supreme Court emphasized in Press-

Enterprise II, grand jury proceedings give rise to strong

countervailing considerations. "[I]t takes little imagination to

recognize that there are some kinds of government operations

that would be totally frustrated if conducted openly. A

classic example is that the 'proper functioning of our grand

jury system depends upon the secrecy of grand jury proceed-

ings.' " 478 U.S. at 8-9 (quoting Douglas Oil, 441 U.S. at

218). The press in this case is not, in any event, barred from

receiving non-protected details about what transpired before

the court. The "denial of access," thus, is "not absolute but

only temporary." Gannett, 443 U.S. at 393. Local Rule 302

provides that on the motion of "any person," or sua sponte,

the court may make publicly available "portions" of "tran-

scripts" of ancillary proceedings "upon a finding that contin-

ued secrecy is not necessary to prevent disclosure of matters

occurring before the grand jury." During oral argument,

counsel for the White House informed us that the process of

redacting transcripts of proceedings involving executive privi-

lege was underway, pursuant to the Chief Judge's directive.

A problem remains. If the press is given no access to the

fact that some sort of ancillary proceeding has taken place, or

will take place, it may be unable to invoke Rule 302. In

Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir.

1991), we held that there was a First Amendment right of

access to plea agreements because these "have traditionally

been open to the public and public access to them enhances

both the basic fairness of the criminal proceeding and the

appearance of fairness." Id. at 288. In light of this, we also

held that trial courts must follow specific procedural prerequi-

sites before granting a motion to seal. Included among these

were an opportunity to be heard, specific findings on the

record, and entry on the public docket. Id. at 289. Here,

although we have found no such right of access under the

Constitution, and hence no "procedural component" of the

First Amendment violated by the Chief Judge's refusal to

enter items under seal on the public docket, we have also

recognized that local Rule 302 provides a limited means for

disclosing non-secret matters. The rule requires that mo-

tions or applications filed in connection with matters occur-

ring before a grand jury "shall be assigned a Miscellaneous

case number." The press tells us that "all papers filed with

the Clerk's office that have any relation at all to grand jury

proceedings are filed under seal and are not included in the

public docket," Brief for Appellants at 39. We can under-

stand why a descriptive caption on a case might reveal grand

jury matters, but we cannot understand why a designation

such as "In re Grand Jury Proceedings," followed by a

miscellaneous case number would have that consequence.

The Chief Judge, in her memorandum opinion, did not explain

why, in light of Rule 302, there has been such a blanket

sealing of the docket. As to this subject, we will therefore

remand the case for reconsideration.

The press has also advanced what it calls a common law

right of access to ancillary proceedings, a right resting on the

Supreme Court's recognition of a common law right of access

to "inspect and copy judicial records." Nixon v. Warner

Communications, 435 U.S. 589, 598 (1978); see also Washing-

ton Legal Found. v. United States Sentencing Comm'n, 89

F.3d 897, 902 (D.C. Cir. 1996). The common law right,

however, is not absolute. See United States v. Hubbard, 650

F.2d 293, 315 (D.C. Cir. 1980) (listing "time-honored excep-

tions") (quoting Nixon, 435 U.S. at 598). There is, for

instance, no right of access to "documents which have tradi-

tionally been kept secret for important policy reasons."

Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th

Cir. 1989); see also United States v. Corbitt, 879 F.2d 224,

228 n.2 (7th Cir. 1989); In re Nat'l Broad. Co., 635 F.2d 945,

952 n.4 (2d Cir. 1980). Although some have identified a

common law tradition of public access to criminal trials, this

never extended to preindictment, pretrial proceedings involv-

ing a grand jury. Gannett Co., 443 U.S. 368, indicates as

much. In any event, even if there were once a common law

right of access to materials of the sort at issue here, the

common law has been supplanted by Rule 6(e)(5) and Rule

6(e)(6) of the Federal Rules of Criminal Procedure. These

Rules, not the common law, now govern. See In re Grand

Jury Subpoena (John Doe No. 4), 103 F.3d 234, 237 (2d Cir.

1996).

Much of what we have already written relates to the press's

motions regarding the two specific ancillary proceedings. In

the first of these, the press sought access to proceedings,

papers, orders, and rulings "concerning assertions by Francis

D. Carter of objections to the grand jury subpoena issued by

the Independent Counsel." See Motion for Access to Pro-

ceedings Concerning Objections (filed Mar. 5, 1998). The

Chief Judge, relying on Fed. R. Crim. P. 6(e)(5) and (6), found

that "access to these matters poses a significant risk of

disclosing information which has occurred or which may occur

before the grand jury." We have held that "matters occur-

ring before the grand jury" include "the identities of wit-

nesses." Fund for Constitutional Gov't, 656 F.2d at 869; see

also In re Grand Jury Proceedings, 914 F.2d 1372, 1374 (9th

Cir. 1990) (noting that the government is not free to "publish

lists of prospective or former grand jury witnesses"); In re

Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir.

1980) ("We construe the secrecy provisions of Rule 6(e) to

apply not only to disclosures of events which have already

occurred before the grand jury, such as a witness's testimony,

but also to disclosures of matters which will occur, such as

statements which reveal the identity of persons who will be

called to testify."). The Chief Judge may have believed that

to have granted even the press's motion for redacted versions

of transcripts or other papers would have been to confirm the

identity of a person the grand jury had subpoenaed. Cf.

Andresen v. Maryland, 427 U.S. 463, 474 (1976) (noting that

"the very act of production may constitute a compulsory

authentication of incriminating information").10 If the blanket

__________

10 The Chief Judge's order denying the motion mentioned Mr.

Carter by name. We do not view this as confirming his status as

denial of the motion rested on that ground, we do not believe

it can be sustained. By the time of the Chief Judge's order it

was no longer a secret that the grand jury had subpoenaed

Carter. Carter's attorney virtually proclaimed from the roof-

tops that his client had been subpoenaed to testify before the

grand jury. See, e.g., Lewinsky Ex-Lawyer Fights to Keep

His Notes from Starr, Boston Globe, Mar. 5, 1998, at A13;

Toni Locy, Ex-Intern's First Attorney Seeks to Have Subpoe-

na Quashed, Wash. Post, Mar. 5, 1998, at A14; CBS Morning

News (CBS television broadcast, Mar. 5, 1998); All Things

Considered (NPR radio broadcast, Mar. 4, 1998); David

Willman & Robin Wright, Ex-Lewinsky Lawyer Fights Starr

Subpoena, L.A. Times, Mar. 3, 1998, at A1; John Mintz,

Lewinsky's First Lawyer is Defended, Wash. Post, Feb. 5,

1998, at A1. It is true that "Rule 6(e) does not create a type

of secrecy which is waived once public disclosure occurs." In

re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994) (quoting Barry

v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990)). But it

is also true that "when information is sufficiently widely

known ... it has lost its character as Rule 6(e) material." Id.

Carter's identity as a person subpoenaed to appear before the

grand jury has become such information, not because of press

reports relying on unnamed sources, but because Carter's

attorney decided to reveal this fact to the public. Cf. United

States v. R. Enterprises, 498 U.S. at 294-96.

Still, the Chief Judge may have refused to provide redacted

versions of the material requested by the press (as local Rule

302 contemplates) for reasons other than protecting the se-

crecy of Carter's identity. The particular items, documents,

or testimony the grand jury seeks from Carter are not

matters of public record, nor are Carter's specific grounds for

resisting. Such "matters occurring before the grand jury"

may have been woven tightly into the ancillary proceeding

involving Carter, so tightly that the Chief Judge believed that

none of the material could be released. In a similar situation,

__________

someone called by the grand jury. The Chief Judge merely para-

phrased the press's own submission.

the special division of this court recognized that sometimes

"redaction is simply not possible." In re North, 16 F.3d at

1242. While this may have been the Chief Judge's reasoning,

we cannot tell from the explanation given in her order. Our

only recourse, therefore, is to vacate the order insofar as it

denied the motion for redacted versions of the transcript and

other papers and remand the case for reconsideration.

The final issue deals with the press's motion for public

access to hearings and transcripts relating to President Clin-

ton's motion to show cause. In response to an earlier press

motion requesting unsealing, the Chief Judge conducted a

Rule 302 analysis, stating: "After having reviewed the Presi-

dent's motion for order to show cause and the accompanying

materials, the Court finds that continued sealing of that

motion is not necessary to prevent disclosure of matters

occurring before the grand jury." In ruling on the motion for

access to hearings and transcripts, however, the Chief Judge

found that "access to the transcripts poses a significant risk

of disclosing information which has occurred or which may

occur before the grand jury." The judge did not mention

whether redacted transcripts might be made public, although

Rule 302 states that the court may release "portions" of

papers, orders, and transcripts of hearings. D.D.C.R. 302.

The Chief Judge's silence on the subject stems from the

press's failure to make it clear that it was requesting only

redacted versions of the transcripts. The press proposed an

order, but the order did not mention the possibility of redac-

tion and it seems clear to us that the Chief Judge did not

believe a motion for a redacted copy had been made. Thus,

as matters now stand, the press has requested only an entire

unredacted transcript of the proceedings. We have no reason

to doubt the Chief Judge's judgment that releasing the entire

transcript would threaten to reveal grand jury matters. The

show cause motion itself concerns claims that the Indepen-

dent Counsel had been leaking grand jury material to the

press. To decide such a motion one would naturally need to

know whether any of the published reports actually men-

tioned matters that had occurred before the grand jury. If,

however, the press clearly requests redacted versions of these

transcripts in the future, we are confident that the Chief

Judge would act on the motion consistent with the limits of

Rule 6(e)(6) and local Rule 302.

* * *

We remand for reconsideration the Chief Judge's order

insofar as it denies the motion for entry of items on the public

docket and vacate and remand the Chief Judge's order deny-

ing the motion for redacted papers, orders, and transcripts in

the Carter proceeding. In all other respects, the orders are

affirmed.

So ordered.