In Re Grand Jury Matter, Antoni Gronowicz

BECKER, Circuit Judge,

concurring:

While I join in Judge Gibbons’ opinion, I write separately because I think it important to explain why, when a grand jury investigation focuses on the truth of a book, the government should be held to a stronger showing than the “scant” requirement of Schofield II, 507 F.2d 963, 967 (3d Cir.1975). This position is not inconsistent with the views of the majority; nor is it at odds with the holding in this case, for although in my view the government made an inadequate showing in the Schofield affidavits relied upon by the district court, Gronowicz has not challenged their sufficiency. Indeed, he has abjured any Scho-field claim, choosing to rely solely on the *991 argument that the first amendment absolutely precludes a grand jury inquiry.

Schofield I and II set out the minimum requirements that the government must meet to survive a challenge to a grand jury subpoena. These cases also make clear that in certain circumstances a court in its discretion may require additional justification for a subpoena. Schofield II, 507 F.2d at 965 . The source of the district court’s discretion in this regard is its supervisory power over grand jury proceedings, which in turn stems from the grand jury’s status as an arm of the court, see Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F.Supp. 1098 , 1103 n. 4 (E.D.Pa. 1976) (Becker, J.). It is the responsibility of the court to preserve the grand jury’s historic role as a bulwark between the individual and the state. Hence, the federal courts have broad supervisory power to prevent grand jury abuse, including the granting of relief from unreasonable and oppressive grand jury process. Id., at 1115 .

The government’s Schofield affidavit avers that a “representative of the Vatican” stated that Gronowicz had not had two hundred hours of conversation with the Pope, that he had asked for but had been denied a private audience with the Pope, and that he had been admitted one or two times in a group or general audience. This affidavit might satisfy the Schofield requirements in an ordinary case. However, in cases which implicate the values so eloquently described in the three dissenting opinions, I doubt that this averment justifies the enforcement of a subpoena duces tecum. More precisely, I find it discomfiting that this investigation proceeded on an anonymous tip, notwithstanding its incorporation in a sworn affidavit. 1

It is difficult, of course, to describe with precision the heightened Schofield showing that I would require where core First Amendment interests are implicated by a grand jury subpoena. Obviously any such jurisprudence would have to develop on a case-by-case basis. I simply wish to note here that when federal district judges are confronted with appropriate motions to quash, limit or enforce grand jury subpoenas, they can, and indeed should, exercise their responsibility to prevent grand jury abuse by insisting that the government invoke the subpoena power only when there is solid foundation for doing so.

The discriminating exercise of supervisory power that I advocate is not tantamount to a First Amendment privilege for targets or subjects of grand jury investigations. In this respect, I agree with Judges Gibbons and Garth. I take issue, however, with Judge Garth’s statement that “[t]he Schofield rule, when met ... supplies all the initial first amendment protections needed before a grand jury,” if by this statement Judge Garth means to suggest that First Amendment concerns cannot support a more stringent Schofield requirement in particular cases. Indeed, I believe that any such notion is in tension with Schofield I and II, and with Branzburg v. Hayes, 408 U.S. 665, 708 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 , where the Supreme Court noted “we do not expect that courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” Although the investigative powers of a grand jury are very broad, United States v. Calandra, 414 U.S. 338, 343 , 94 S.Ct. 613, 617 , 38 L.Ed.2d 561 (1972), I believe it is clear under current law that federal district judges exercising their supervisory power to prevent grand jury abuse can require the government to provide a strong justification for an inquiry before the court unleashes the power of the grand jury in a context where it might chill the exercise of First Amendment rights. In my view, this was an appropriate case for a heightened Schofield show *992 ing. Cf. In re San Juan Star Co., 662 F.2d 108 , 116 (1st Cir.1981) (“ ‘heightened sensitivity’ ” for first amendment concerns appropriate in consideration of order prohibiting dissemination to press of communications produced during discovery) (quoting Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st Cir. 1980)).

Judge Sloviter has posed some provocative hypothetical situations in which the majority’s holding might be thought to undermine important first amendment values. See at 1002. I would be concerned about these and other “worst case” scenarios but for my belief that such efforts to suppress the contents of books for improper reasons would constitute grand jury abuse which could be reined by the exercise of the supervisory power I have described. Proper exercise of that power, in my view, requires more than the perfunctory examination of affidavits, and may be exercised in the context of a formal hearing convened to determine whether the prosecutor is acting in bad faith.

. The government submitted a third Schofield affidavit which the district court accepted for filing but neither read nor relied upon in ruling on the motion to quash the subpoena. This third affidavit contains more detailed information than the earlier ones. In particular, it contains an affidavit from Wladyslaw Cardinal Rubin, of the Vatican Secretariat, confirming the substance of the second Schofield affidavit.