Petition for Writ of Certiorari — Stuart A. McKeever, Petitioner v. William P. Barr, Attorney General

Supreme Court briefSep 5, 2019

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No. _______

In the

Supreme Court of the United States

STUART A. MCKEEVER,

Petitioner,

WILLIAM P. BARR,

ATTORNEY GENERAL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROMAN MARTINEZ

Counsel of Record

ERIC J. KONOPKA

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

roman.martinez@lw.com

Counsel for Petitioner

QUESTION PRESENTED

Federal Rule of Criminal Procedure 6(e) imposes

an “obligation of secrecy” on specific, listed persons

connected to a grand jury, including government

attorneys, grand jurors, and court reporters—but not

district courts. The Rule also contains several express

“Exceptions” to this secrecy obligation, which allow

disclosure of grand jury materials in certain

circumstances.

Openly disagreeing with the Second, Seventh, and

Eleventh Circuits, the D.C. Circuit below held that

Rule 6(e)’s secrecy obligation categorically binds

district courts, and it thus denied that district courts

have any “authority outside Rule 6(e) to disclose

grand jury matter.” App. 17a. In those other circuits,

however, district courts retain inherent authority

over grand jury records and may release such records

in limited circumstances not expressly covered by

Rule 6(e)—including, as relevant here, in historically

significant cases when continued secrecy no longer

serves a meaningful purpose.

The question presented is:

Whether district courts have inherent authority to

release grand jury materials in extraordinary

circumstances, such as when the case is historically

significant and the public interest strongly favors

disclosure.

LIST OF RELATED PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(b)(iii),

Petitioner states that there are no proceedings

directly related to the case in this Court.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

LIST OF RELATED PROCEEDINGS ...................... ii

TABLE OF AUTHORITIES ...................................... v

OPINIONS AND ORDERS BELOW ......................... 1

JURISDICTION ......................................................... 1

RULE PROVISION INVOLVED ............................... 1

INTRODUCTION ...................................................... 1

STATEMENT OF THE CASE ................................... 5

A. The Galíndez Affair ......................................... 5

B. Facts And Procedural History ........................ 9

REASONS FOR GRANTING THE WRIT............... 14

A. The D.C. Circuit Openly Created A Circuit

Split Over The Question Presented .............. 15

B. The D.C. Circuit Misinterpreted Rule 6(e) ... 22

C. The Question Presented Is Important And

Warrants This Court’s Review...................... 30

CONCLUSION ......................................................... 34

TABLE OF CONTENTS—Continued

Page

APPENDIX

Opinion of the United States Court of Appeals

for the District of Columbia Circuit, Stuart

A. McKeever v. William P. Barr, 920 F.3d

842 (D.C. Cir. 2019) ............................................1a

Memorandum Opinion & Order of the United

States District Court for the District of

Columbia, In re Petition of Stuart

McKeever, Misc. Action No. 13-54 (RCL)

(D.D.C. May 23, 2017) ......................................28a

Order of the United States Court of Appeals for

the District of Columbia Circuit Denying

Rehearing En Banc, No. 17-5149 (D.C. Cir.

July 22, 2019) ....................................................41a

Federal Rule of Criminal Procedure 6(e) ...............42a

TABLE OF AUTHORITIES

Page(s)

CASES

In re Applications for Orders Directing the

Review or Release of Certain Grand Jury

Testimony of Biaggi,

478 F.2d 489 (2d Cir. 1973) ...........................11, 16

Carlisle v. United States,

517 U.S. 416 (1996) ..............................................28

Carlson v. United States,

837 F.3d 753 (7th Cir. 2016)........................ passim

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ...................................... 4, 23, 28

Cobbledick v. United States,

309 U.S. 323 (1940) ..............................................22

Dietz v. Bouldin,

136 S. Ct. 1885 (2016)..........................................23

Douglas Oil Co. of California v. Petrol Stops

Northwest,

441 U.S. 211 (1979) ..............................................29

Frank v. United States,

262 F.2d 695 (D.C. Cir. 1958) ................................8

In re Grand Jury 89-4-72,

932 F.2d 481 (6th Cir. 1991)..........................13, 21

TABLE OF AUTHORITIES—Continued

Page(s)

In re Grand Jury Investigation of

Cuisinarts, Inc.,

665 F.2d 24 (2d Cir. 1981), cert. denied,

460 U.S. 1068 (1983) ............................................23

In re Grand Jury Proceedings,

417 F.3d 18 (1st Cir. 2005), cert. denied,

546 U.S. 1088 (2006) ......................................19, 20

In re Grand Jury Subpoena Duces Tecum,

797 F.2d 676 (8th Cir. 1986)................................22

In re Grand Jury Subpoenas, April, 1978, at

Baltimore,

581 F.2d 1103 (4th Cir. 1978), cert.

denied, 440 U.S. 971 (1979) .................................21

Haldeman v. Sirica,

501 F.2d 714 (D.C. Cir. 1974) (en banc) ........13, 24

Henderson v. United States,

568 U.S. 266 (2013) ..............................................22

Irizarry v. United States,

553 U.S. 708 (2008) ..............................................22

In re J. Ray McDermott & Co.,

622 F.2d 166 (5th Cir. 1980)................................21

Levine v. United States,

362 U.S. 610 (1960) .................................. 22, 23, 29

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Link v. Wabash Railroad Co.,

370 U.S. 626 (1962) ..............................................23

Murdick v. United States,

15 F.2d 965 (8th Cir. 1926), cert. denied,

274 U.S. 752 (1927) ..............................................25

Nixon v. Warner Communications, Inc.,

435 U.S. 589 (1978) ..............................................23

In re Petition of American Historical

Association, et al. for Order Directing

Release of Grand Jury Minutes,

49 F. Supp. 2d 274 (S.D.N.Y. 1999) ....................32

In re Petition of Craig for Order Directing

Release of Grand Jury Minutes,

131 F.3d 99 (2d Cir. 1997) ........................... passim

In re Petition to Inspect & Copy Grand Jury

Materials,

735 F.2d 1261 (11th Cir.), cert. denied,

469 U.S. 884 (1984) ........................ 3, 11, 13, 16, 26

In re Petition of Kutler,

800 F. Supp. 2d 42 (D.D.C. 2011) ........................32

Pitch v. United States,

915 F.3d 704 (11th Cir. 2019)..............................18

Pitch v. United States,

925 F.3d 1224 (11th Cir. 2019)............................18

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395 (1959) ........................................16, 25

Proctor v. National Archives & Records

Administration,

__ F.R.D. __, 2019 WL 2163004 (N.D.

Cal. 2019) .............................................................20

In re Report & Recommendation of June 5,

1972 Grand Jury,

370 F. Supp. 1219 (D.D.C. 1974) .........................24

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ..............................................30

Schmidt v. United States,

115 F.2d 394 (6th Cir. 1940)................................25

In re Special Grand Jury 89-2,

450 F.3d 1159 (10th Cir. 2006)............................20

Standley v. Department of Justice,

835 F.2d 216 (9th Cir. 1987)................................23

United States v. Aisenberg,

358 F.3d 1327 (11th Cir.), cert. denied,

543 U.S. 868 (2004) ........................................17, 20

United States v. Davila,

569 U.S. 597 (2013) ..............................................22

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Educational Development

Network Corp.,

884 F.2d 737 (3d Cir. 1989), cert. denied,

494 U.S. 1078 (1990) ............................................21

United States v. McDougal,

559 F.3d 837 (8th Cir. 2009)..........................13, 21

United States v. Penrod,

609 F.2d 1092 (4th Cir. 1979), cert.

denied, 446 U.S. 917 (1980) .................................23

United States v. Procter & Gamble Co.,

356 U.S. 677 (1958) ........................................23, 29

United States v. Socony-Vacuum Oil Co.,

310 U.S. 150 (1940) ..............................................23

United States v. Williams,

504 U.S. 36 (1992) ..........................................22, 23

STATUTES AND RULES

28 U.S.C. § 1254(1)......................................................1

Federal Rule of Criminal Procedure 6(e)

advisory committee’s note to 1944

adoption ................................................................25

Federal Rule of Criminal Procedure 6(e)(1) .............27

Federal Rule of Criminal Procedure 6(e)(2) .............27

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Rule of Criminal Procedure

6(e)(2)(A).......................................................2, 3, 24

Federal Rule of Criminal Procedure

6(e)(2)(B).................................................................2

Federal Rule of Criminal Procedure 6(e)(3) ...............2

Supreme Court Rule 10(a) ........................................14

OTHER AUTHORITIES

Advisory Comm. on Crim. Rules, Agenda

Book (Apr. 2012),

https://www.uscourts.gov/

sites/default/files/fr_import/

CR2012-04.pdf ............................. 26, 29, 30, 31, 32

Advisory Comm. on Crim. Rules, Minutes

(Apr. 2012),

https://www.uscourts.gov/sites/

default/files/fr_import/criminalmin-04-2012.pdf .............................................26, 31

Alan A. Block, Violence, Corruption, and

Clientelism: The Assassination of Jesús

de Galíndez, 1956, 16 Social Justice 64

(1989) ..............................................................6, 8, 9

Milton Bracker, Trujillo’s Rule Denounced

in Missing Scholar’s Book, N.Y. Times,

May 29, 1956 ..........................................................6

TABLE OF AUTHORITIES—Continued

Page(s)

Milton Bracker, U.S. Jury Pushes Galindez

Inquiry, N.Y. Times, Aug. 22, 1957.......................7

Elliot Carlson, Stanley Johnston’s Blunder:

The Reporter Who Spilled the Secrets

Behind the U.S. Navy’s Victory at

Midway (2017) .....................................................33

103 Cong. Rec. 13405 (1957) .......................................8

Costly Whitewash of Black Charges, Life,

June 9, 1958 ...........................................................7

Junot Díaz, The Brief Wondrous Life of

Oscar Wao (2007) ...................................................9

Morrey Dunie & Albon B. Hailey,

Dominican Probe Holds D.C. Lawyer,

Washington Post & Times-Herald, May

14, 1957 ..................................................................7

Dwight D. Eisenhower, The President’s

News Conference of April 25, 1956, in

Public Papers of the Presidents of the

United States (1956) ..............................................8

Federal Jury Pushing Quiz of Galindez

Case, N.Y. Post, May 14, 1957 ..............................6

Foreign Relations of the United States,

1955–1957 (Volume VI), American

Republics: Multilateral; Mexico;

Caribbean (John P. Glennon ed., 1987) ............7, 8

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Graham Hovey, Intrigue in Dominican

Republic: Mystery Thriller Without

Solution, Minneapolis Tribune, Dec. 23,

1957 ................................................................6, 7, 8

Herbert L. Matthews, Galindez Case: New

Chapter in Dominican Mystery, N.Y.

Times, Dec. 15, 1957 ..........................................6, 7

Stuart A. McKeever, El rapto de Galíndez y

su importancia en las relaciones entre

Washington y Trujillo (2016)...............................10

Stuart A. McKeever, The Galindez Case

(2013) ....................................................................10

Stuart A. McKeever, The President’s

Private Eye (1990) ..................................................9

Stuart A. McKeever, Professor Galíndez:

Disappearing from Earth (2018) .........................10

New Chapter, Old Mystery, Newsweek, Dec.

30, 1957 ..................................................................8

Report of the Attorney General to the

Congress of the United States on the

Administration of the Foreign Agents

Registration Act of 1938, as Amended,

for the Period January 1, 1955 to

December 31, 1959 (June 1960),

https://www.justice.gov/nsd-fara/

page/file/991956/download ....................................8

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Katherine Rosenberg-Douglas, 1942

Tribune Story Implied Americans

Cracked Japanese Code. Documents

Show Why Reporter Not Indicted,

Chicago Tribune (Oct. 28, 2017),

https://www.chicagotribune.com/news/

breaking/ct-met-tribune-espionage-actbook-web-post-out-20171024-story.html ............32

The Story of a Dark International

Conspiracy, Life, Feb. 25, 1957 .............................6

Tad Szulc, Witness Tells of Galindez Pilot’s

Death, N.Y. Times, Apr. 6, 1964............................7

David Talbot, The Devil’s Chessboard:

Allen Dulles, the CIA, and the Rise of

America’s Secret Government (2015) .....................9

Mario Vargas Llosa, The Feast of the Goat

(Edith Grossman trans., 2001) (2000) ..................9

Manuel Vázquez Montalbán, Galíndez

(Carol & Thomas Christensen trans.,

1992) (1990)............................................................9

Tim Weiner, Enemies: A History of the FBI

(2012) ......................................................................9

Benjamin Weiser, Nixon Lobbied Grand

Jury to Indict Hiss in Espionage Case,

Transcripts Reveal, N.Y. Times, Oct. 12,

1999 ......................................................................32

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

36 West’s Criminal Law, News–NL 15,

District court did not have inherent

authority to disclose grand jury records

(May 3, 2019) .......................................................20

PETITION FOR A WRIT OF CERTIORARI

Petitioner Stuart A. McKeever respectfully

petitions this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeals (App. 1a–27a)

is reported at 920 F.3d 842 (D.C. Cir. 2019). The order

of the court of appeals denying rehearing en banc

(App. 41a) is unreported.

The district court’s

memorandum opinion and order denying release of

grand jury materials (App. 28a–40a) is unreported.

JURISDICTION

The court of appeals entered its opinion and

judgment on April 5, 2019. App. 1a. On July 22, 2019,

the court of appeals denied a timely petition for

rehearing en banc. This Court has jurisdiction under

28 U.S.C. § 1254(1).

RULE PROVISION INVOLVED

Federal Rule of Criminal Procedure 6(e) is

reproduced at App. 42a–48a.

INTRODUCTION

This case raises important questions about the

inherent authority of federal courts, the transparency

of our judicial system, and the public’s ability to

understand important events in our Nation’s history.

For decades, courts of appeals have recognized that

district courts have inherent authority to disclose

grand jury records in special circumstances where the

public interest outweighs any need for continued

secrecy. Pursuant to that authority, courts have

allowed the American public to learn important

information about such seminal events as the Moore’s

Ford lynching of African Americans in Georgia, Alger

Hiss’s espionage for the Soviet Union, intelligence

leaks during World War II, and the Watergate

scandal.

In this case, however, a divided panel of the D.C.

Circuit held that Federal Rule of Criminal Procedure

6(e) eliminates that inherent authority to release

grand jury materials—even when the records at issue

have significant historical value and the need for

secrecy has dissipated over the course of decades.

Over a dissent from Judge Srinivasan, the court

openly created a circuit split with decisions by the

Second, Seventh, and Eleventh Circuits. It also

rejected the position of the Advisory Committee on

Criminal Rules, which recently confirmed that Rule

6(e)’s secrecy obligation does not directly apply to the

district court. This Court should grant certiorari to

resolve this split and correct the D.C. Circuit’s

misinterpretation of the Rule.

Rule 6(e)’s terms are straightforward.

Rule

6(e)(2)(A) provides the baseline for grand jury secrecy:

“No obligation of secrecy may be imposed on any

person except in accordance with Rule 6(e)(2)(B).”

Rule 6(e)(2)(B), in turn, requires that specific, listed

persons “not disclose a matter occurring before the

grand jury” “[u]nless these rules provide otherwise.”

That list includes various persons connected to the

grand jury, including government attorneys, grand

jurors, and court reporters. See Fed. R. Crim. P.

6(e)(2)(B). Rule 6(e)(3) then lists various “Exceptions”

to the secrecy requirement.

Notably, the district court that supervises the

grand jury is not on Rule 6(e)(2)(B)’s list of persons

governed by the Rule’s “obligation of secrecy.” The

Second, Seventh, and Eleventh Circuits have thus

held that Rule 6(e) leaves room for district courts to

exercise their established inherent authority to

release grand jury records when the need for

disclosure far outweighs the interest in continued

secrecy. The First and Tenth Circuits have signaled

that they would reach the same conclusion. Indeed,

that is the only result consistent with the Rule’s text,

which unequivocally forbids courts from recognizing

any “obligation of secrecy . . . except in accordance

with Rule 6(e)(2)(B).” Fed. R. Crim. P. 6(e)(2)(A).

The D.C. Circuit below, however, understood the

Rule very differently. Even though Rule 6(e)(2)’s

secrecy obligation applies—by its terms—only to the

listed persons, the court nonetheless read that list as

also covering the district court. Based on that

atextual premise, the court held that district courts

have no authority to disclose grand jury materials

outside the scope of the Rule. The D.C. Circuit

reached this conclusion in open defiance of the circuits

that have ruled the other way.

This Court should review that decision for three

overarching reasons.

First, the D.C. Circuit’s

interpretation of Rule 6(e) avowedly “differs from that

of some other circuits.” App. 15a (citing, inter alia, In

re Petition of Craig for Order Directing Release of

Grand Jury Minutes (“In re Craig”), 131 F.3d 99, 105

(2d Cir. 1997); Carlson v. United States, 837 F.3d 753,

767 (7th Cir. 2016); In re Petition to Inspect & Copy

Grand Jury Materials (“In re Hastings”), 735 F.2d

1261, 1272 (11th Cir.), cert. denied, 469 U.S. 884

(1984)). The disagreement is sharpest between the

D.C. and Seventh Circuits: The D.C. Circuit called

the Seventh Circuit’s “account of Rule 6 . . . difficult

to square with the text,” App. 12a, whereas the

Seventh Circuit said the D.C. Circuit’s approach

“makes no sense.” Carlson, 837 F.3d at 764. The

circuit split will not disappear on its own.

Second, the D.C. Circuit’s holding is mistaken.

This Court does not “lightly assume” that Federal

Rules eliminate a court’s inherent authority.

Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991)

(citation omitted). And Rule 6(e)’s text and history

show that it continued—and did not extinguish—

district courts’ preexisting authority over grand jury

records, including the ability to release such records

in special circumstances. The government argued in

favor of that understanding of the Rule decades ago,

and it accords with the Advisory Committee’s

longstanding interpretation, as reaffirmed most

recently in 2011.

Third, the question presented in this case is

important. Our judicial system rightly prizes grand

jury secrecy. But there are narrow circumstances in

which the need for secrecy has dissipated and the

public interest favors disclosure. District courts

should be empowered to exercise reasoned discretion

to authorize limited disclosure of grand jury materials

in those circumstances, just as they have for decades.

Those disclosures can vindicate important public

values of transparency and historical understanding,

and they advance public confidence in the judicial

system. The government itself recognized as much in

2011, when it urged the Advisory Committee to

amend the rule to expressly authorize the kind of

disclosure at issue here.

The Advisory Committee ultimately rejected that

request—but only because it believed that district

courts already had inherent authority to release

historically significant grand jury materials. In doing

so, the Committee relied on comments from esteemed

judges and prosecutors, including now-retired

District Judge D. Lowell Jensen and former Attorney

General (and District Judge) Michael Mukasey, who

uniformly opined that district courts have carefully

and responsibly exercised that authority for decades.

The Advisory Committee’s conclusion was

absolutely right, and the D.C. Circuit lost its way in

rejecting it. This Court should grant review to correct

that error and hold that Rule 6(e)’s text does not

preclude district courts from disclosing historically

significant grand jury materials in the sorts of

circumstances presented here.

STATEMENT OF THE CASE

Petitioner Stuart A. McKeever is an 82-year-old

researcher and writer who has devoted decades of his

life to uncovering the truth behind the 1956 Galíndez

affair, a significant episode of twentieth century

United States history that remains shrouded in

mystery decades later. As part of that quest, he is

seeking a limited release of grand jury materials from

a related criminal prosecution that concluded more

than sixty years ago. The district court (Lamberth,

J.) recognized its authority to grant his request, but

the D.C. Circuit reversed.

A. The Galíndez Affair

1. On March 12, 1956, Jesús de Galíndez

vanished from New York City. A scholar and lecturer

at Columbia University, Galíndez was also an

outspoken critic of General Rafael Trujillo, then the

dictator of the Dominican Republic. Galíndez had

previously fled his native Spain during the Civil War,

first to France and then to the Dominican Republic.

Although he had worked for a time as a legal advisor

to the Trujillo regime, he became disenchanted with

its excesses and left for the United States in 1946. See

Alan A. Block, Violence, Corruption, and Clientelism:

The Assassination of Jesús de Galíndez, 1956, 16

Social Justice 64, 79 (1989).

In 1956, Galíndez presented his doctoral

dissertation, The Era of Trujillo, a harsh critique of

the dictator’s rule. See id. at 79–80; Milton Bracker,

Trujillo’s Rule Denounced in Missing Scholar’s Book,

N.Y. Times, May 29, 1956, at 1. Thirteen days after

that presentation, Galíndez disappeared without a

trace. See Block, supra, at 80; Bracker, supra, at 1.

He was never seen or heard from again.

At the time, it was widely suspected that Trujillo’s

henchmen had kidnapped Galíndez, taken him to the

Dominican Republic, and murdered him. See, e.g.,

Federal Jury Pushing Quiz of Galindez Case, N.Y.

Post, May 14, 1957. The plot thickened still further

in December 1956, when American pilot Gerald

Murphy disappeared as well.

Graham Hovey,

Intrigue in Dominican Republic: Mystery Thriller

Without Solution, Minneapolis Tribune, Dec. 23,

1957.1 Murphy had piloted the plane that spirited

Galíndez from New York to the Dominican Republic.

Herbert L. Matthews, Galindez Case: New Chapter

in Dominican Mystery, N.Y. Times, Dec. 15, 1957, at

6B.

After Murphy vanished, the Trujillo regime

announced that he had been murdered by his co-pilot,

who then conveniently hanged himself in a

1 See also The Story of a Dark International Conspiracy,

Life, Feb. 25, 1957, at 24.

Dominican jail. Hovey, supra. American authorities

quickly suspected that the Trujillo regime was to

blame, however, and those suspicions were eventually

confirmed by a prison warden who had witnessed

Murphy’s murder.

Tad Szulc, Witness Tells of

Galindez Pilot’s Death, N.Y. Times, Apr. 6, 1964, at

12; see also Foreign Relations of the United States,

1955–1957 (Volume VI), American Republics:

Multilateral; Mexico; Caribbean 884 (John P. Glennon

ed., 1987).

2. By early 1957, a federal grand jury in the

District of Columbia was investigating the Galíndez–

Murphy case. A key subject of the inquiry was John

Joseph Frank, an ex-FBI agent and former lawyer for

the CIA whom Trujillo had paid to investigate

Galíndez. See Hovey, supra.2 But the evidence

indicated that Frank had done far more than just

investigate: Using the pseudonym “John Kane,” he

had paid for the chartered plane (piloted by Murphy)

that carried Galíndez to the Dominican Republic. See

Costly Whitewash of Black Charges, Life, June 9,

1958, at 105–06; Matthews, supra, at 6B.

The United States considered charging Frank

with conspiring to kidnap Galíndez.

Foreign

Relations, supra, at 913–14, 916. In the end, though,

Frank was indicted only for failing to register as an

agent of a foreign power.

A Washington jury

convicted Frank, but the D.C. Circuit overturned the

conviction because the prosecutor had linked him to

the “disappearance of the Dominican exile Galíndez

See also, e.g., Milton Bracker, U.S. Jury Pushes Galindez

Inquiry, N.Y. Times, Aug. 22, 1957, at 6; Morrey Dunie & Albon

B. Hailey, Dominican Probe Holds D.C. Lawyer, Washington

Post & Times-Herald, May 14, 1957.

and

the

aviator

Gerald

Murphy,”

whose

“disappearance in circumstances that suggested

murder was a matter of common knowledge.” Frank

v. United States, 262 F.2d 695, 696 (D.C. Cir. 1958).

Frank’s retrial ended in a nolo contendere plea; he

paid a modest fine and served no jail time. Report of

the Attorney General to the Congress of the United

States on the Administration of the Foreign Agents

Registration Act of 1938, as Amended, for the Period

January 1, 1955 to December 31, 1959, at 10–11 (June

1960).3 Frank died almost thirty years ago, in 1991.

3. The Galíndez affair has been called “one of this

century’s more fantastic real-life mysteries,” Hovey,

supra, and “[o]ne of the great mystery stories of

modern times,” New Chapter, Old Mystery,

Newsweek, Dec. 30, 1957.

At the time, the

kidnapping and likely murder provoked national

outcry and an “outpouring of American media and

congressional attention,” as well as FBI and State

Department interest in the police investigation. See

Block, supra, at 80; Foreign Relations, supra, at 877–

79.4

Galíndez’s disappearance has captured the public

imagination for many years. It has been discussed in

scholarly articles and works of history, and it was the

subject of a 2002 documentary film, Galíndez (Ana

Available at https://www.justice.gov/nsd-fara/page/file/

991956/download.

See also, e.g., Dwight D. Eisenhower, The President’s

News Conference of April 25, 1956, in Public Papers of the

Presidents of the United States 440–41 (1956) (reporter asking

the President whether Galíndez “was assassinated by agents of

the Trujillo dictatorship” on U.S. soil); 103 Cong. Rec. 13405–06,

13410–11, 14959–60 (1957).

Díez director, 2002).5 It has also lived on in various

works of fiction. For example, Manuel Vázquez

Montalbán won Spain’s National Prize for Fiction for

his novel Galíndez, in which an American Ph.D.

candidate investigates the mystery.6

Galíndez’s

death is a plot point in Nobel laureate Mario Vargas

Llosa’s The Feast of the Goat.7 And Galíndez’s likely

fate—“gagged, bagged, and dragged” to the

Dominican Republic—is also described in Junot

Díaz’s Pulitzer Prize-winning novel, The Brief

Wondrous Life of Oscar Wao.8

Yet despite the public attention, the full truth of

what happened to Galíndez—and who was

responsible—has never been fully revealed.

B. Facts And Procedural History

1. McKeever is an author and retired lawyer who

has been researching and writing about the Galíndez

case since 1980. App. 2a. He included a chapter on

the subject in his book The President’s Private Eye

(1990), a biography of the New York City detective

who had investigated Galíndez’s disappearance in the

1950s. In the ensuing decades, McKeever dug deeper

into the case, scouring archives and interviewing

See Block, supra; David Talbot, The Devil’s Chessboard:

Allen Dulles, the CIA, and the Rise of America’s Secret

Government 316–30 (2015); Tim Weiner, Enemies: A History of

the FBI 487 (2012).

Manuel Vázquez Montalbán, Galíndez (Carol & Thomas

Christensen trans., 1992) (1990).

Mario Vargas Llosa, The Feast of the Goat 81–90 (Edith

Grossman trans., 2001) (2000).

8 Junot Díaz, The Brief Wondrous Life of Oscar Wao 96–

97 & n.11 (2007).

witnesses. He eventually explored the subject in a

full-length book, Spanish-language and expanded

editions of which were published, respectively, by the

Dominican Academy of History and the City

University of New York’s Dominican Studies

Institute. See Stuart A. McKeever, The Galindez Case

(2013); Stuart A. McKeever, El rapto de Galíndez y su

importancia en las relaciones entre Washington y

Trujillo (2016); Stuart A. McKeever, Professor

Galíndez: Disappearing from Earth (2018).

Over the years, however, one invaluable source of

information has remained off-limits to McKeever: the

records of the grand jury that indicted Frank over

sixty years ago. McKeever believes that those records

could shed light on whether agents of the U.S.

Government were involved in the kidnapping and

whether witnesses lied during the investigation.

2. In 2013, while completing his book, McKeever

filed a pro se motion asking the U.S. District Court for

the District of Columbia—which had convened and

supervised the Frank grand jury—to release the

records. App. 2a. He argued that release was in the

public interest due to their historical significance. Id.

at 38a–39a. McKeever also explained that the long

passage of time had eliminated any need for

continued secrecy. Id. at 37a. Accordingly, McKeever

asked the district court to order release of the records

either under Federal Rule of Criminal Procedure 6(e)

or pursuant to its inherent authority. Id. at 28a.

The government opposed McKeever’s motion. It

correctly observed that no provision of Rule 6(e)

governed McKeever’s request. The government then

argued, first and foremost, that the request was

improper because “no disclosure of grand jury

information is permissible outside the strictures of

Rule 6(e).” Id. at 34a.

In May 2017, Judge Lamberth rejected the

government’s Rule 6(e) argument as “unconvincing.”

Id. His decision noted that ever since a 1973 Second

Circuit opinion by Chief Judge Friendly, a long line of

authority has “recognized there may be ‘special

circumstances’ in which release of grand jury records

is appropriate even outside the boundaries of the

rule.” App. 32a (quoting In re Craig, 131 F.3d at 102,

in turn quoting In re Applications for Orders Directing

the Review or Release of Certain Grand Jury

Testimony of Biaggi (“In re Biaggi”), 478 F.2d 489, 494

(2d Cir. 1973) (Friendly, C.J., Suppl. Op.)); see id. at

32a–33a (discussing, inter alia, Carlson, 837 F.3d at

76, and In re Hastings, 735 F.2d at 1268–69). Judge

Lamberth also stressed that these authorities are

“consistent with . . . the text and history of the rule.”

Id. at 35a.

Judge Lamberth’s opinion then made clear that

many reasons favor discretionary release of the grand

jury records that McKeever sought. He agreed that

“[a] case involving lethal operations by United States

citizens acting as foreign agents inside the United

States” is historically significant, id. at 38a–39a, and

that McKeever is a bona fide author seeking the

records for the legitimate purpose of furthering his

research into the Galíndez case, id. at 37a. He also

found that “[n]early sixty years have passed since the

grand jury held its hearings,” and hence “the

principals and witnesses who might be affected by

disclosure of the records are likely deceased.” Id.

Even though Judge Lamberth recognized the

strength of McKeever’s request and his inherent

authority to grant it, he denied the request as

overbroad. He did so based on his understanding that

McKeever was “presumptively” seeking access to “all”

of the testimony and records in the Frank grand jury

file. Id. at 39a–40a. Judge Lamberth did not consider

whether McKeever’s pro se request could be narrowed

to the testimony of particular witnesses.

3. On appeal to the D.C. Circuit, McKeever

clarified that instead of demanding the entire Frank

file, he was seeking only the testimony of eight

specific individuals who he believed had testified

before the grand jury. Motion to Expand Record at 1,

McKeever v. Barr, No. 17-5149 (“McKeever”) (D.C. Cir.

filed Sept. 18, 2017). The government’s principal

response was to urge the court to reject Judge

Lamberth’s interpretation of Rule 6(e) and hold that

district courts categorically lack authority to disclose

grand jury material outside the terms of that Rule. In

a split decision issued in April 2019, the D.C. Circuit

agreed with the government’s broad legal theory and

rejected McKeever’s request solely on that basis.

The majority reached its conclusion based on its

understanding of Rule 6(e). It began by explaining

that “Rule 6(e)(2)(B) instructs that persons bound by

grand jury secrecy must not make any disclosures

about grand jury matters ‘[u]nless these rules provide

otherwise.’” App. 4a–5a (alteration in original). And

“[t]he only rule to ‘provide otherwise’ is Rule 6(e)(3),”

id. at 5a, which lists “Exceptions” to Rule 6(e)(2)’s

secrecy obligation but conveys no express “authority

to order disclosure of grand jury matter outside [of

them],” id. at 6a. Hence, according to the majority,

“Rules 6(e)(2) and (3) together explicitly require

secrecy in all other circumstances.” Id. at 5a. The

majority further held that although the district court

is not among the entities contained in Rule 6(e)(2)(B)’s

list of those bound by the secrecy obligation, it is

nonetheless subject to that obligation, at least “as a

practical matter,” because grand jury records are in

the custody of government attorneys who are so

bound. Id. at 11a.

The majority frankly admitted that its “view of

Rule 6(e) differs from that of some other circuits”—

namely the Second, Seventh, and Eleventh Circuits.

Id. at 15a (citing, inter alia, In re Craig, 131 F.3d at

105, Carlson, 837 F.3d at 767, and In re Hastings, 735

F.2d at 1272). And it specifically criticized Chief

Judge Wood’s recent analysis of Rule 6(e) for the

Seventh Circuit as “difficult to square with the text.”

Id. at 12a. The majority did assert, however, that its

analysis of Rule 6(e) was consistent with decisions

from the Sixth and Eighth Circuits, which it

characterized as having “turned down an invitation to

craft and exception to grand jury secrecy outside the

terms of [Rule 6(e)],” id. at 15a; see id. at 16a (citing

In re Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir.

1991), and United States v. McDougal, 559 F.3d 837,

840 (8th Cir. 2009)), as well as with dicta from three

other circuits, id. at 16a & n.4.

Judge Srinivasan dissented. In his view, one

consideration was dispositive: In Haldeman v. Sirica,

501 F.2d 714 (D.C. Cir. 1974) (en banc), the D.C.

Circuit had “faced the contention that a district

court’s authority to disclose grand jury materials is

confined to the exceptions in Rule 6(e),” App. 23a, and

had “affirmed [the district court’s] understanding

that a district court retains discretion to release

grand jury materials outside the Rule 6(e)

exceptions,” id. at 26a. Judge Srinivasan also

emphasized that the majority’s decision had created a

circuit split. See id. at 27a (“[M]y reading of

Haldeman squares with the reading of the decision

adopted by each our sister circuits to have interpreted

it.”).9

REASONS FOR GRANTING THE WRIT

This case satisfies all the traditional criteria for

certiorari. See Sup. Ct. R. 10(a). In holding that

Federal Rule of Criminal Procedure 6(e) imposes a

secrecy obligation on district courts and that the

Rule’s exceptions to that obligation are exhaustive,

the D.C. Circuit expressly disagreed with the Second,

Seventh, and Eleventh Circuits. The decision below

is also in significant tension with rulings from the

First and Tenth Circuits, though it claimed to find

support in rulings from the Third, Fourth, Fifth,

Sixth, and Eighth Circuits. However one looks at it,

the confusion and disarray in the federal appellate

courts is palpable. The undisputed, clear circuit split

is reason enough for this Court to grant review.

Certiorari is also warranted because the D.C.

Circuit misconstrued Rule 6(e)’s text and history. The

Rule imposes a secrecy obligation on certain persons,

but not on the district court that convenes and

supervises the grand jury. The “Exceptions” found in

the Rule thus have no bearing on district courts’

power to release grand jury materials in special

circumstances. Instead, as numerous courts, the

Advisory Committee on Criminal Rules, and the

government itself have previously observed, Rule 6(e)

continues courts’ preexisting authority over grand

jury records. That includes the power to disclose

9 The D.C. Circuit denied McKeever’s subsequent petition

for rehearing en banc. App. 41a.

them, when appropriate, in unusual cases of

historical significance.

Finally, the question presented here is important.

Nobody—not even the government—disputes that

there are circumstances outside of Rule 6(e) in which

grand jury materials should be released. But the D.C.

Circuit’s flat prohibition prevents courts from even

considering such disclosures, even when there is a

strong public interest in them and no countervailing

need for secrecy.

The D.C. Circuit’s interpretation of Rule 6(e) has

no sound basis in law or policy. The petition should

be granted.

A. The D.C. Circuit Openly Created A Circuit

Split Over The Question Presented

The D.C. Circuit below admittedly created a

circuit split on the question whether district courts

have inherent authority to release grand jury records

in limited circumstances not covered by Rule 6(e).

The court’s decision expressly acknowledged its

disagreement with the Second, Seventh, and

Eleventh Circuits—and the decision is also in serious

tension with rulings by the First and Tenth Circuits.

This Court’s intervention is needed to resolve the split

and restore a uniform interpretation of Rule 6(e).

1. For decades until the D.C. Circuit’s decision in

this case, other federal courts of appeals had

repeatedly and explicitly recognized that district

courts have inherent authority to release grand jury

records in extraordinary circumstances.

a. The Second Circuit came first. In In re Biaggi,

a mayoral candidate who had testified before a grand

jury asked that his testimony be publicly released to

rebut allegations that he had asserted his Fifth

Amendment privilege against self-incrimination. 478

F.2d 489, 490–91 (2d Cir. 1973). In an opinion by

Chief Judge Friendly, the court interpreted Rule 6(e)

to embody a tradition of grand jury secrecy that is

“older than our Nation itself.” Id. at 491 (quoting

Pittsburgh Plate Glass Co. v. United States, 360 U.S.

395, 399 (1959)). And, the court said, grand jury

materials should usually be released only when

authorized by one of Rule 6(e)’s exceptions to grand

jury secrecy—none of which, it conceded, applied. Id.

at 492–93. But the court nonetheless held that the

rule favoring secrecy was not absolute, and that

disclosure was appropriate. It reasoned that “under

the special circumstances of this case,” id. at 494,

including the candidate’s misleading public

statements, disclosure was in the public interest and

would not harm the values protected by “the rule of

secrecy,” id. at 493.

The Second Circuit later reiterated its inherent

authority holding in In re Craig, 131 F.3d 99 (2d Cir.

1997).

Writing for the court, Judge Calabresi

recognized that “Rule 6(e)(3) governs almost all

requests for the release of grand jury records,” but

that “there are certain ‘special circumstances’ in

which release of grand jury records is appropriate

even outside of the boundaries of the rule.” Id. at 102

(quoting In re Biaggi, 478 F.2d at 494). Moreover, the

court made clear, “historical or public interest alone”

can “justify the release of grand jury information” if,

for example, the “historical interest . . . overwhelm[s]

any continued need for secrecy.” Id. at 105.

b. The Eleventh Circuit has also recognized

district courts’ “inherent power beyond the literal

wording of Rule 6(e),” calling it “amply supported.” In

re Hastings, 735 F.2d 1261, 1268 (11th Cir.), cert.

denied, 469 U.S. 884 (1984). In In re Hastings, the

district court granted a Judicial Council Investigating

Committee access to the records of a grand jury that

had returned a bribery indictment against a federal

judge. Id. at 1263. The court acknowledged that Rule

6(e) is “normally controlling,” and that no provision of

the Rule expressly allowed disclosure. Id. at 1268. It

discerned, however, that “the rule is not the true

source of the district court’s power with respect to

grand jury records.” Id. Rather, Rule 6(e) codifies

“standards pertaining to the scope of the power

entrusted to the discretion of the district court” and

has been “shaped” over time by the exercise of that

discretion. Id. Thus, the Eleventh Circuit held, “it is

certain that a court’s power to order disclosure of

grand jury records is not strictly confined to instances

spelled out in the rule.” Id. It ultimately affirmed the

district court’s balancing of the need for the grand

jury records against the interest in secrecy. See id. at

1273–75.

The Eleventh Circuit has reaffirmed these

principles in subsequent cases, too. In United States

v. Aisenberg, for example, the district court “ordered

wholesale disclosure” of grand jury transcripts largely

to give the public insight into police and prosecutorial

misconduct that had come to light. 358 F.3d 1327,

1336 (11th Cir.), cert. denied, 543 U.S. 868 (2004).

Although the Eleventh Circuit reversed the district

court’s order, it reaffirmed In re Hastings’s holding

that “district courts have inherent power beyond the

literal wording of Rule 6(e)(3) to disclose grand jury

material.” Id. at 1347.10

10 A panel of the Eleventh Circuit later applied In re

Hastings and upheld the release of grand jury materials relating

c. Most recently, the Seventh Circuit joined the

Second and Eleventh Circuits in holding that district

courts have “inherent supervisory authority . . . to

unseal grand jury materials in circumstances not

addressed by” Rule 6(e). Carlson v. United States, 837

F.3d 753, 766–67 (7th Cir. 2016). There, a historian

sought, and the district court released, records from a

grand jury that had investigated the leak of a Navy

communiqué during World War II. See id. at 756–57.

On behalf of the court, Chief Judge Wood first

recognized that courts have long exercised inherent

supervisory authority over the grand jury, which “has

historically included the discretion to determine when

otherwise secret grand-jury materials may be

disclosed.” Id. at 762. The court then noted that

“[t]he advent of the Criminal Rules did not eliminate

a district court’s inherent supervisory power,” either

“as a general matter” or with respect to the grand jury

specifically. Id. at 762–63.

The Seventh Circuit rejected the government’s

counterargument that the phrase “[u]nless these

rules provide otherwise” in Rule 6(e)(2)(B) shows that

courts may not disclose grand jury records except as

specified in Rule 6(e)(3)(E). Id. at 763–64 (alteration

in original) (citation omitted). The court found that

to the 1946 Moore’s Ford Lynching—considered by some to be

the “last mass lynching in American history”—in which “two

African American couples were dragged from a car and shot

multiple times.” Pitch v. United States, 915 F.3d 704, 707 (11th

Cir. 2019); see id. at 709–11. The Eleventh Circuit subsequently

granted rehearing en banc in Pitch, vacating the panel opinion

and asking the parties to submit briefs addressing the scope of a

district court’s authority to release grand jury materials. See

Pitch v. United States, 925 F.3d 1224 (11th Cir. 2019). The case

is still pending.

that argument “makes no sense, either as a reading

of Rule 6(e) or as a general matter of statutory (or

rule) construction.” Id. at 764. Among other things,

the court said, “the government provides no

explanation why a limitation buried in [Rule

6(e)(2)(B)] secretly applies to the rule as a whole, or

even worse . . . to an entirely different subpart.” Id.

Finally, the Seventh Circuit stressed that “[t]he

few hints . . . in the text of Rule 6(e) all indicate that

the list in subpart (3)(E) is not exclusive,” and that its

reading of Rule 6(e) accords with the views of the

Advisory Committee on Criminal Rules and every

court that had considered the issue. Id.; see id. at

765–66. Accordingly, it upheld the district court’s

release of the grand jury records at issue, which

undisputedly had significant historical value. Id. at

767.

d. In addition to the courts noted above, the First

and Tenth Circuits have issued decisions signaling

that they too believe that district courts can release

grand jury materials in appropriate cases. Although

these courts have not yet expressly granted such a

disclosure, their analyses confirm the majority view

that Rule 6(e) does not extinguish the inherent

authority of district courts with respect to grand jury

secrecy.

In In re Grand Jury Proceedings, for example, the

First Circuit held that district courts may impose a

secrecy obligation on grand jury witnesses—even

though Rule 6(e)(2)(A) states that “[n]o obligation of

secrecy may be imposed on [them].” 417 F.3d 18, 26

(1st Cir. 2005) (Boudin, C.J.), cert. denied, 546 U.S.

1088 (2006). The court refused to read Rule 6(e) to

wipe out the district court’s authority to regulate

grand jury secrecy, holding that the Rule’s “phrasing

can, and should, accommodate rare exceptions

premised on inherent judicial power.” Id. In doing so,

the court endorsed the Eleventh Circuit’s statement

that “[a]lthough Rule 6(e)(3) enumerates the

exceptions to the traditional rule of grand jury secrecy

. . . the district courts have inherent power beyond the

literal wording of Rule 6(e)(3) to disclose grand jury

material.” Id. at 26 n.9 (second alteration in original)

(quoting Aisenberg, 358 F.3d at 1347).

Similarly, in In re Special Grand Jury 89-2, the

Tenth Circuit recognized that Rule 6(e) does not

curtail district courts’ inherent authority over grand

jury disclosures. 450 F.3d 1159, 1178 (10th Cir.

2006). There, grand jurors bound by a secrecy

obligation asked for permission to release

information. The Tenth Circuit indicated that “some

relief may be proper under the court’s inherent

authority,” although it remanded the case to the

district court to consider that issue in the first

instance. Id.

2. There is no question that the D.C. Circuit’s

ruling in this case directly conflicts with the decisions

highlighted above. Indeed, the court forthrightly

acknowledged the circuit split, conceding that its

“view of Rule 6(e) differs from that of [the Second,

Seventh, and Eleventh] circuits.” App. 15a (citing,

inter alia, In re Craig, Carlson, and In re Hastings);

see also, e.g., Proctor v. Nat’l Archives & Records

Admin., __ F.R.D. __, 2019 WL 2163004, at *5 (N.D.

Cal. 2019) (noting the circuit split); accord 36 West’s

Criminal Law News–NL 15, District court did not

have inherent authority to disclose grand jury records

(May 3, 2019) (same).

The D.C. Circuit’s decision grappled at greatest

length with the Seventh Circuit’s decision in Carlson.

After summarizing Chief Judge Wood’s opinion, the

court dismissed her reasoning as “difficult to square

with the text of the Rule.” App. 12a. Instead, it

agreed with Judge Sykes’s dissenting opinion, which

it quoted extensively. Id. at 13a.

Notably, the D.C. Circuit claimed that five other

circuits supported its own view that Rule 6(e) is

exclusive and bars district courts from exercising

inherent authority to release grand jury materials.

The court asserted that both the Sixth and Eighth

Circuits had “turned down an invitation to craft an

exception to grand jury secrecy outside the terms of

the Rule” (albeit in factual circumstances quite unlike

those at issue here). Id. at 15a; see id. at 16a (citing

In re Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir.

1991), and United States v. McDougal, 559 F.3d 837,

840 (8th Cir. 2009)). The D.C. Circuit also claimed

that “[a]t least three other circuits have expressed the

same view in dicta.” App. 16a & n.4 (citing United

States v. Educ. Dev. Network Corp., 884 F.2d 737, 740

(3d Cir. 1989), cert. denied, 494 U.S. 1078 (1990), In

re Grand Jury Subpoenas, Apr., 1978, at Baltimore,

581 F.2d 1103, 1108–09 (4th Cir. 1978), cert. denied,

440 U.S. 971 (1979), and In re J. Ray McDermott &

Co., 622 F.2d 166, 172 (5th Cir. 1980)).11

11 As McKeever noted in his petition for rehearing en banc,

the Sixth and Eighth Circuit decisions identified by the D.C.

Circuit are distinguishable, insofar as (1) In re Grand Jury 89-472 addressed only Rule 6(e)’s “judicial proceedings” exception,

932 F.2d at 483; and (2) McDougal declined a request to unseal

records of a defendant’s contempt hearing, 559 F.3d at 839–40.

McKeever agrees that the discussion of the district court’s

authority in the Third, Fourth, and Fifth Circuit decisions is

dicta at best.

The bottom line is that at least five circuits have

weighed in on the question presented and concluded

that district courts have inherent authority in

matters of grand jury secrecy, including the power to

release grand jury materials in appropriate

circumstances. On the other side of the split, the D.C.

Circuit—and, by that court’s telling, at least five other

circuits—have held the opposite.

There is obviously no reason Rule 6(e)’s grand jury

provisions should be applied differently across the

country.

Indeed, this Court has often granted

certiorari to resolve disputes over the proper

interpretation of the Criminal Rules. See, e.g., United

States v. Davila, 569 U.S. 597, 605, 609–12 (2013)

(resolving split over the consequences of a violation of

Fed. R. Crim. P. 11(c)(1)); Henderson v. United States,

568 U.S. 266, 270, 279 (2013) (resolving split over

Fed. R. Crim. P. 52(b)’s plain error standard); Irizarry

v. United States, 553 U.S. 708, 713–16 (2008)

(resolving split over the applicability of Fed. R. Crim.

P. 32(h) to Sentencing Guidelines variances). The

Court should do the same thing here.

B. The D.C. Circuit Misinterpreted Rule 6(e)

Certiorari is also warranted because the D.C.

Circuit’s understanding of Rule 6(e) is mistaken.

1. Although the grand jury is functionally

independent from the judiciary, United States v.

Williams, 504 U.S. 36, 48 (1992), it is still “an arm of

the court,” Levine v. United States, 362 U.S. 610, 617

(1960), and operates “under general instructions from

the court to which it is attached,” Cobbledick v. United

States, 309 U.S. 323, 327 (1940). It “therefore acts

under the inherent supervision of the court.” In re

Grand Jury Subpoena Duces Tecum, 797 F.2d 676,

680 n.4 (8th Cir. 1986) (citing, inter alia, Levine, 362

U.S. at 617). To be sure, courts’ inherent supervisory

authority over the grand jury is “very limited.”

Williams, 504 U.S. at 50. But courts have nonetheless

exercised it in matters “rang[ing] from the mundane

to the weighty.” Carlson, 837 F.3d at 762; see id.

(giving examples).

Numerous courts have recognized that grand jury

records are court records. See id. at 758–59; Standley

v. Dep’t of Justice, 835 F.2d 216, 218 (9th Cir. 1987);

In re Grand Jury Investigation of Cuisinarts, Inc., 665

F.2d 24, 31 (2d Cir. 1981), cert. denied, 460 U.S. 1068

(1983); United States v. Penrod, 609 F.2d 1092, 1097

(4th Cir. 1979), cert. denied, 446 U.S. 917 (1980); see

also United States v. Procter & Gamble Co., 356 U.S.

677, 684–85 (1958) (Whittaker, J., concurring). And

just as courts have always had the inherent authority

to control access to their other records, they have long

been able to disclose grand jury records when, in their

“sound discretion,” they conclude that “the ends of

justice require it.” United States v. Socony-Vacuum

Oil Co., 310 U.S. 150, 233–34 (1940); see Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).

2. Although “the exercise of the inherent power of

lower federal courts can be limited by statute and

rule,” the Federal Rules do not, as a general matter,

eliminate that power. Chambers v. NASCO, Inc., 501

U.S. 32, 47 (1991); see Link v. Wabash R.R. Co., 370

U.S. 626, 630–32 (1962). When analyzing whether a

Rule eliminates inherent authority as to a particular

subject, this Court typically looks for a “clear[]

expression of purpose” in the Rule, Link, 370 U.S. at

631–32, or for contradiction between the power and

the Rule, see Dietz v. Bouldin, 136 S. Ct. 1885, 1892

(2016). Rule 6(e) does not clearly evince a purpose to

eliminate courts’ long-established inherent authority

to release grand jury materials.

Nor does it

necessarily conflict with the exercise of that

authority.

Rule 6(e) itself does not cut off district courts’

preexisting authority to release grand jury materials.

Rule 6(e)(2)(A) defines the scope of grand jury secrecy,

reading: “No obligation of secrecy may be imposed on

any person except in accordance with Rule 6(e)(2)(B).”

That subpart, in turn, requires that, “[u]nless these

rules provide otherwise, the following persons must

not disclose a matter occurring before the grand jury.”

It goes on to list seven categories of “persons”—

including government attorneys, grand jurors, and

court reporters—who are connected to the grand jury.

Notably, Rule 6(e)(2)(B) does not include the district

court. As a result, Rule 6(e)(2)(A) forbids placing an

“obligation of secrecy” on it.

Over forty years ago, the government espoused the

same interpretation of Rule 6(e) that McKeever

advances here. In Haldeman v. Sirica (“Haldeman”),

501 F.2d 714 (D.C. Cir. 1974) (en banc), the Watergate

grand jury asked that its report be turned over to the

House Judiciary Committee, and the district court

obliged. See In re Report & Recommendation of June

5, 1972 Grand Jury, 370 F. Supp. 1219, 1221 (D.D.C.

1974). Arguing in favor of that result on appeal, the

government told the D.C. Circuit:

[T]he wording of [Rule 6(e)] itself makes

entirely clear that it simply does not apply

to a case such as this, where disclosure by

the court is involved. Instead the rule is a

housekeeping provision intended to restrict

disclosure of information only by jurors,

attorneys and other court personnel,

subject to the discretion of the Court. This

restriction, which does not apply to the

court itself, is expressly made exclusive

....

Haldeman Mem. for the United States 18–19 (filed

Mar. 21, 1974) (footnotes omitted); see Haldeman

Transcript of Oral Argument at 41 (filed Mar. 21,

1974) (arguing that the district court “exercis[ed] his

historic inherent power as the judge” in deciding that

“the public interest” in disclosure “outweighed the

historic function to be served by secrecy”).12

That understanding of the Rule makes perfect

sense. As this Court has recognized, “Rule 6(e) is but

declaratory” of the principle that disclosure of grand

jury materials is “committed to the discretion of the

trial judge.” Pittsburgh Plate Glass Co., 360 U.S. at

399.

And

the

Rule’s

history

confirms

this

understanding. At the time the Rule was adopted, the

Advisory Committee on Criminal Rules made clear

that the Rule would simply “continue[] the traditional

practice of secrecy . . . except when the court permits

a disclosure.”

Fed. R. Crim. P. 6(e) advisory

committee’s note to 1944 adoption. The Committee

endorsed a then-recent decision holding that district

courts have “discretion” to “relax[] the rule of secrecy”

when appropriate. Schmidt v. United States, 115 F.2d

394, 397 (6th Cir. 1940); see also Murdick v. United

12 Excerpts of these documents are part of the D.C.

Circuit’s docket for this case. See McKeever Addendum to Reply

Brief for Court-Appointed Amicus Curiae in Support of

Appellant (filed June 25, 2018).

States, 15 F.2d 965, 968 (8th Cir. 1926) (recognizing

that a court’s “inherent power” gives it “the right to go

behind the secrecy imposed upon a grand jury . . .

where the interests of justice demand it”), cert.

denied, 274 U.S. 752 (1927). This history shows that

Rule 6(e) was never intended to “strictly confine[]” the

instances in which disclosure of grand jury materials

is appropriate. In re Hastings, 735 F.2d at 1268; see

id. at 1269.

The Advisory Committee recently reaffirmed its

longstanding view. In 2011, the Department of

Justice proposed an amendment to Rule 6(e) that

would have expressly allowed courts to disclose

historically significant grand jury materials in certain

circumstances. See Advisory Comm. on Crim. Rules,

Agenda Book 217–26 (Apr. 2012) (“Agenda Book”).13

After surveying Rule 6(e)’s text, history, precedent,

and policy—and considering detailed submissions

from former Attorney General (and District Judge)

Michael Mukasey and now-retired District Judge D.

Lowell Jensen, among others—the Committee

rejected the proposed amendment as unnecessary. Id.

at 210; see id. at 209–71. The Committee explained

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 Comm. on Crim.

Rules, Minutes 7 (Apr. 2012) (“Minutes”) (emphasis

added).14

13 Available at https://www.uscourts.gov/sites/default/files/

fr_import/CR2012-04.pdf.

14 Available at https://www.uscourts.gov/sites/default/files/

fr_import/criminal-min-04-2012.pdf.

3. The D.C. Circuit’s contrary opinion rests on a

flawed reading of Rule 6(e). The court below correctly

recognized that, under Rule 6(e)(2), “persons bound by

grand jury secrecy must not make any disclosures

about grand jury matters ‘[u]nless these rules provide

otherwise.’” App. 4a–5a (alteration in original). Its

takeaway: Since Rule 6(e)(3) is “[t]he only rule to

‘provide otherwise,’” the “Exceptions” found in Rule

6(e)(3) are necessarily exhaustive and thus eliminate

any inherent authority the district court otherwise

might have to disclose grand jury materials. Id. at 5a.

That reasoning is mistaken. Rule 6(e)(3)(E)’s

“Exceptions” are to the rule of secrecy established in

Rule 6(e)(2). But Rule 6(e)(2) imposes a secrecy

obligation only on a specific list of people connected to

the grand jury—such as grand jurors, government

attorneys, and court reporters. Crucially, the list does

not include the district court itself. Rule 6(e)(3)(E)’s

exceptions to Rule 6(e)(2) therefore have no bearing

on district courts’ inherent authority over grand jury

records—as the government itself made clear in

Haldeman. See supra at 24–25.

The D.C. Circuit tried to evade this textual point

by asserting that “Rule 6 assumes the [grand jury’s]

records are in the custody of the Government, not that

of the court.” App. 11a. On this view, Rule 6(e)(2)’s

secrecy obligation—which does apply to government

attorneys—also binds the court, at least as “a

practical matter.” Id. But that is simply not the case.

Rule 6(e)(1) states that “an attorney for the

government will retain control” of grand jury

materials “[u]nless the court orders otherwise.” A

court may thus take possession of the materials itself,

at which point it is outside the scope of Rule 6(e)(2)’s

prohibition on disclosures by government attorneys.

That is precisely what other courts have sanctioned,

and what McKeever seeks here.

The D.C. Circuit’s other arguments also lack

merit.

For example, the court asserted that

recognizing district courts’ inherent authority to

disclose grand jury materials would render Rule

6(e)(3)’s “detailed list of exceptions” to grand jury

secrecy “merely precatory.” Id. at 6a. Not so. Rule

6(e)(3) serves (at least) two purposes. First, it lists

common scenarios in which disclosure of grand jury

materials is allowed. And second, it informs district

courts’ exercise of discretion on disclosure requests,

whether or not specifically addressed by Rule 6(e).

See Carlson, 837 F.3d at 764–65 (rejecting this

argument); see generally Carlisle v. United States, 517

U.S. 416, 426 (1996).

Nor do this Court’s precedents weigh against

inherent authority. See App. 6a–8a. Although the

D.C. Circuit cited several of this Court’s cases, it

acknowledged that “the Court has not squarely

addressed the present question.” Id. at 7a. In fact,

the cited cases never “addressed the present question”

at all. None of them even purported to analyze the

scope of district courts’ inherent authority to disclose

grand jury materials. This Court has not answered

the question presented, implicitly or explicitly, and

the court below was wrong to suggest otherwise.

Finally, the D.C. Circuit’s concern about the

proliferation of disclosure requests—and the

potential for rampant over-disclosure—is overblown.

App. 14a–15a. Like all inherent powers, the inherent

power to disclose grand jury materials “must be

exercised with restraint and discretion.” Chambers,

501 U.S. at 44. That’s especially true in this context,

since, “[u]nlike an ordinary judicial inquiry, . . . grand

jury proceedings are secret.” Levine, 362 U.S. at 617;

see In re Craig, 131 F.3d at 104 (“[W]hether to make

public the ordinarily secret proceedings of a grand

jury investigation is one of the broadest and most

sensitive exercises of careful judgment that a trial

judge can make.”). In considering disclosure requests,

courts must adhere to a “baseline presumption

against disclosure,” In re Craig, 131 F.3d at 104, seek

guidance and constraints in the policies underpinning

grand jury secrecy, and order disclosure only when a

strong showing of need outweighs the interest in

continued secrecy. See Douglas Oil Co. of Cal. v.

Petrol Stops Nw., 441 U.S. 211, 222–23 (1979); Procter

& Gamble Co., 356 U.S. at 681 n.6; In re Craig, 131

F.3d at 106.

All available evidence indicates that courts have

reasonably exercised their inherent power to disclose

grand jury materials. For example, even though the

Department of Justice proposed to delimit courts’

authority to release historically significant grand jury

records, see supra at 26, it admitted that courts’

exercise of their inherent authority had been “rare,”

Agenda Book 223.

Former Attorney General Mukasey has agreed

with that assessment. In opposing the Justice

Department’s 2011 proposal to amend Rule 6, he

carefully reviewed district courts’ disclosure practices

in recent decades. Judge Mukasey opined that the

track record “reflect[s] careful and informed exercise

by courts of the authority to authorize disclosure even

outside the four corners of Rule 6(e)”—and it

emphatically does not show judges “running amok

and forcing unwarranted disclosures.” Id. at 253. As

he rightly concluded: “Rule 6(e) ain’t broke,” so there

is “no reason to fix it.” Id. Other esteemed

commentators—including Judge Jensen (who

previously chaired the Advisory Committee) and

former U.S. Attorneys Robert Fiske and Otto

Obermaier—have echoed his view. See id. at 211–12,

235–45. The D.C. Circuit should have heeded their

counsel.

C. The Question Presented Is Important And

Warrants This Court’s Review

Whether district courts have inherent authority to

release grand jury records is an important question

that implicates fundamental constitutional values,

the transparency of judicial proceedings, and the

public’s ability to understand important events in our

Nation’s history.

Court records and proceedings—particularly in

criminal cases—are presumptively open, and for good

reason: “[T]he public has an intense need and a

deserved right to know about the administration of

justice,” which implicates First Amendment and

other constitutional values. Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555, 604 (1980) (Blackmun,

J., concurring in the judgment).

The presumptive secrecy of grand jury proceedings

is an important and justified departure from the

norm—but it is not absolute. That secrecy should give

way when it no longer serves a significant purpose

and the public interest favors disclosure. See, e.g., In

re Craig, 131 F.3d at 105.

The Department of Justice acknowledged as much

when it proposed to amend Rule 6(e) in 2011. See

supra at 26. At the time, it agreed that “the public’s

interest in access to the primary-source records of our

national history” will sometimes “‘overwhelm any

continued need for [grand jury] secrecy.’” Agenda

Book 221 (quoting In re Craig, 131 F.3d at 105). After

the Advisory Committee rejected the government’s

proposal, the Department’s representative stated that

although “the Department will continue to object to

requests for disclosure” based on inherent authority,

it “does think the prudent policy is to permit release

under appropriate circumstances.” Minutes 8.

The government has not backtracked from that

policy view: In this very case, it informed the D.C.

Circuit that “[t]he government agrees that grand jury

secrecy ought not last forever.” McKeever Br. for

Appellee 14 (filed June 4, 2018). And in Carlson, the

government stated:

As a matter of policy, the United States

shares the district court’s sense that, in

criminal cases of enduring historical

importance, the need for continued grand

jury secrecy may eventually be outweighed

by the public’s legitimate interest in

preserving and accessing the documentary

legacy of our government.

Corrected Br. for Respondent-Appellant United

States 40–41, Carlson v. United States, 837 F.3d 753

(7th Cir. 2016) (No. 15-2972), ECF No. 16.

The Department of Justice is not alone in its

support of that policy. The Archivist of the United

States, for one, “has welcomed the development by the

courts of the special circumstances exception to Rule

6(e) for historically significant grand-jury material,”

because it allows “public access to highly sought-after

grand-jury materials from a small number of the

criminal case files that are permanently preserved in

the National Archives.” Agenda Book 257.

Indeed, as far as McKeever is aware, nobody

favors a blanket prohibition on disclosure of

historically significant grand jury materials. And

that’s for good reason.

The small number of

authorized disclosures for reasons of historical

significance have concerned momentous events in our

Nation’s history—including the “last mass lynching in

American History,” see supra note 10; spying by

government officials for the Soviet Union, see In re

Petition of Am. Historical Ass’n, et al. for Order

Directing Release of Grand Jury Minutes, 49 F. Supp.

2d 274, 278–79, 291–97 (S.D.N.Y. 1999); a major

intelligence leak during World War II, see Carlson,

837 F.3d at 756–57; and Watergate, see In re Petition

of Kutler, 800 F. Supp. 2d 42, 43–44, 48–49 (D.D.C.

2011).

Moreover, grand jury records have contributed

significantly to the public’s understanding of these

events. After a district court released grand jury

records from the Alger Hiss espionage investigation,

for example, the public definitively learned that thenCongressman Richard Nixon had “blatantly lobbied

grand jurors to indict Hiss,” but had used a “more

subtle and sophisticated . . . approach than his critics

ha[d] ever given him credit for.”15 And after the

Seventh Circuit decided Carlson, records revealed

that a Navy Admiral had “torpedoed” the grand jury

investigation into a reporter who had leaked the

Navy’s own secrets.16

15 Benjamin Weiser, Nixon Lobbied Grand Jury to Indict

Hiss in Espionage Case, Transcripts Reveal, N.Y. Times, Oct. 12,

1999, at A25.

16 Katherine

Rosenberg-Douglas, 1942 Tribune Story

Implied Americans Cracked Japanese Code. Documents Show

These important facts might well have remained

sealed forever had courts not wisely granted access to

grand jury records. That result would serve no one—

least of all the American public.

The D.C. Circuit’s categorical bar on disclosure

leaves no room to consider circumstances that could

justify release of grand jury records in particular

cases. That anti-textual, anti-historical, one-size-fitsall approach misreads Rule 6(e)’s language and

disserves the public’s compelling interest in knowing

our Nation’s past.

This case offers an ideal

opportunity for this Court to overturn the D.C.

Circuit’s outlier ruling and ensure that Rule 6(e) is

applied

uniformly—and

correctly—across

the

country.

Why Reporter Not Indicted, Chicago Tribune (Oct. 28, 2017),

https://www.chicagotribune.com/news/breaking/ct-met-tribuneespionage-act-book-web-post-out-20171024-story.html; see also

Elliot Carlson, Stanley Johnston’s Blunder: The Reporter Who

Spilled the Secrets Behind the U.S. Navy’s Victory at Midway

(2017).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROMAN MARTINEZ

Counsel of Record

ERIC J. KONOPKA

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

roman.martinez@lw.com

Counsel for Petitioner

September 5, 2019

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the District of Columbia Circuit, Stuart

A. McKeever v. William P. Barr, 920 F.3d

842 (D.C. Cir. 2019) ............................................1a

Memorandum Opinion & Order of the United

States District Court for the District of

Columbia, In re Petition of Stuart

McKeever, Misc. Action No. 13-54 (RCL)

(D.D.C. May 23, 2017) ......................................28a

Order of the United States Court of Appeals for

the District of Columbia Circuit Denying

Rehearing En Banc, No. 17-5149 (D.C. Cir.

July 22, 2019) ....................................................41a

Federal Rule of Criminal Procedure 6(e) ...............42a

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT

Stuart A. MCKEEVER, Appellant

William P. BARR, Attorney General, Appellee

No. 17-5149

Argued September 21, 2018

Decided April 5, 2019

920 F.3d 842

Before: Srinivasan and Katsas, Circuit Judges,

and GINSBURG, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge

Srinivasan.

Ginsburg, Senior Circuit Judge:

Historian Stuart A. McKeever appeals an order of

the district court denying his petition to release grand

jury records from the 1957 indictment of a former

agent of the Federal Bureau of Investigation, which

McKeever sought in the course of his research for a

book he is writing. The district court, lacking positive

authority, asserted it has inherent authority to

disclose historically significant grand jury matters

but denied McKeever’s request as overbroad. On

appeal, the Government argues the district court does

not have the inherent authority it claims but rather

is limited to the exceptions to grand jury secrecy listed

in Federal Rule of Criminal Procedure 6(e).

We agree with the Government. Accordingly, we

affirm the order of the district court denying

McKeever’s petition for the release of grand jury

matters.

I. Background

In 1956 Columbia University Professor Jesús de

Galíndez Suárez disappeared from New York City.

News media at the time believed Galíndez, a critic

of the regime of Dominican Republic dictator Rafael

Trujillo, was kidnapped and flown to the Dominican

Republic and there murdered by Trujillo’s agents.

Witness Tells of Galindez Pilot’s Death, N.Y. TIMES

(Apr. 6, 1964); Dwight D. Eisenhower, The President’s

News Conference of April 25, 1956, in Public Papers

of the Presidents of the United States 440–41 (1956).

To this day, the details of Galíndez’s disappearance

remain a mystery.

Stuart McKeever has been researching and

writing about the disappearance of Professor

Galíndez since 1980. In 2013 McKeever petitioned

the district court for the ‘‘release of grand jury records

in the Frank case,’’ referring to the 1957 investigation

and indictment of John Joseph Frank, a former FBI

agent and CIA lawyer who later worked for Trujillo,

and who McKeever believed was behind Galíndez’s

disappearance. The grand jury indicted Frank for

charges related to his failure to register as a foreign

agent pursuant to the Foreign Agents Registration

Act of 1938 but never indicted him for any

involvement in Galíndez’s murder. See Frank v.

United States, 262 F.2d 695, 696 (D.C. Cir. 1958).

The district court asserted it has ‘‘inherent

supervisory authority’’ to disclose grand jury matters

that are historically significant, but nevertheless

denied McKeever’s request after applying the

multifactor test set out In re Craig, 131 F.3d 99, 106

(2d Cir. 1997). Although several of the nine nonexhaustive factors favored disclosure, the district

court read McKeever’s petition as seeking release of

all the grand jury ‘‘testimony and records in the Frank

case,’’ which it held was overbroad. McKeever duly

appealed.1

We review de novo the district court’s assertion of

inherent authority to disclose what we assume are

historically significant grand jury matters. Cf. United

States v. Doe, 934 F.2d 353, 356 (D.C. Cir. 1991).

Because we hold the district court has no such

authority, we need not determine whether it abused

its discretion in denying McKeever’s petition as

overbroad.2

II. Analysis

The Supreme Court has long maintained that ‘‘the

proper functioning of our grand jury system depends

upon the secrecy of grand jury proceedings.’’ Douglas

Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218,

99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). That secrecy

safeguards vital interests in (1) preserving the

willingness and candor of witnesses called before the

grand jury; (2) not alerting the target of an

investigation who might otherwise flee or interfere

with the grand jury; and (3) preserving the rights of a

McKeever appeared pro se in the district court but on

appeal has been ably assisted by a court-appointed amicus

curiae.

Although the records at issue here were transferred from

the Department of Justice to the National Archives, we

understand the DOJ has legal control over them. See FED. R.

CRIM. P. 6(e)(1) (‘‘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’’).

An order directing the Attorney General to release the records

would, therefore, redress McKeever’s alleged injury.

suspect who might later be exonerated. Id. at 219, 99

S.Ct. 1667. To protect these important interests,

[b]oth the Congress and [the Supreme] Court

have consistently stood ready to defend [grand

jury secrecy] against unwarranted intrusion.

In 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.

United States v. Sells Engineering, Inc., 463 U.S. 418,

425, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983).

As we have said before, Federal Rule of Criminal

Procedure 6(e) ‘‘makes quite clear that disclosure of

matters occurring before the grand jury is the

exception and not the rule’’ and ‘‘sets forth in precise

terms to whom, under what circumstances and on

what conditions grand jury information may be

disclosed.’’ Fund of Constitutional Gov’t v. Nat’l

Archives & Records Serv., 656 F.2d 856, 868 (D.C. Cir.

1981). The full text of Rule 6(e) is reproduced in the

Appendix.

Of particular relevance here, Rule

6(e)(2)(B) sets out the general rule of grand jury

secrecy and provides a list of ‘‘persons’’ who ‘‘must not

disclose a matter occurring before the grand jury’’

‘‘[u]nless these rules provide otherwise.’’ Rule 6(e)(3)

then sets forth a detailed list of ‘‘exceptions’’ to grand

jury secrecy, including in subparagraph (E) five

circumstances in which a ‘‘court may authorize

disclosure . . . of a grand-jury matter.’’ As McKeever

does not claim his request comes within any

exception, the question before us is whether the list of

exceptions is exhaustive, as the Government argues.

We agree with the Government’s understanding of

the Rule. Rule 6(e)(2)(B) instructs that persons bound

by grand jury secrecy must not make any disclosures

about grand jury matters ‘‘[u]nless these rules provide

otherwise.’’ The only rule to ‘‘provide otherwise’’ is

Rule 6(e)(3). Rules 6(e)(2) and (3) together explicitly

require secrecy in all other circumstances. See

Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17,

100 S.Ct. 1905, 64 L.Ed.2d 548 (1980) (‘‘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’’).

That the list of enumerated exceptions is so

specific bolsters our conclusion. For example, the first

of the five discretionary exceptions in Rule 6(e)(3)(E)

permits the court to authorize disclosure of a grand

jury matter ‘‘preliminarily to or in connection with a

judicial proceeding.’’ Rule 6(e)(3)(E)(i). The second

exception allows for disclosure ‘‘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.’’ Rule 6(e)(3)(E)(ii).

The other three exceptions provide that a court may

authorize disclosure to certain non-federal officials

‘‘at the request of the government’’ to aid in the

enforcement of a criminal law, Rule 6(e)(3)(E)(iii)-(v);

those provisions implicitly bar the court from

releasing materials to aid in enforcement of civil law.

Each of the exceptions can clearly be seen, therefore,

as the product of a carefully considered policy

judgment by the Supreme Court in its rulemaking

capacity, and by the Congress, which in 1977 directly

enacted Rule 6(e) in substantially its present form.

See Fund for Constitutional Gov’t, 656 F.2d at 867. In

interpreting what is now Rule 6(e)(3)(E)(i), for

example, the Supreme Court stressed that the

exception ‘‘reflects a judgment that not every

beneficial purpose, or even every valid governmental

purpose, is an appropriate reason for breaching grand

jury secrecy.’’ United States v. Baggot, 463 U.S. 476,

480, 103 S.Ct. 3164, 77 L.Ed.2d 785 (1983).

As the Government emphasizes, McKeever points

to nothing in Rule 6(e)(3) that suggests a district court

has authority to order disclosure of grand jury matter

outside the enumerated exceptions. The list of

exceptions in Rule 6(e)(3) does not lead with the term

‘‘including,’’ nor does it have a residual exception. Cf.,

e.g., FED. R. CIV. P. 60(b) (permitting the court to

relieve a party from a final judgment or order for five

listed reasons as well as ‘‘any other reason that

justifies relief’’).

The contrary reading proposed by McKeever –

which would allow the district court to create such

new exceptions as it thinks make good public policy –

would render the detailed list of exceptions merely

precatory and impermissibly enable the court to

‘‘circumvent’’ or ‘‘disregard’’ a Federal Rule of

Criminal Procedure. Carlisle v. United States, 517

U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996);

see also Dietz v. Bouldin, ––– U.S. ––––, 136 S.Ct.

1885, 1888, 195 L.Ed.2d 161 (2016) (The exercise of

an inherent power ‘‘cannot be contrary to any express

grant of, or limitation on, the district court’s power

contained in a rule or statute’’).

In an effort to limit the natural consequences of

his proposal, McKeever explains that the district

court should be allowed to fashion new exceptions to

grand jury secrecy only if they are ‘‘so different from

the types of disclosures addressed by Rule 6(e)(3)(E)

that no negative inference can be drawn.’’ Amicus

Reply Br. 14-16. That reasoning, however, ignores

the likelihood that disclosures ‘‘so different’’ from the

ones explicitly permitted by the rule are so far

removed from permissible purposes of disclosure that

the drafters saw no need even to mention them.

Our understanding that deviations from the

detailed list of exceptions in Rule 6(e) are not

permitted is fully in keeping with Supreme Court

precedent. Though the Court has not squarely

addressed the present question, its Rule 6 opinions

cast grave doubt upon the proposition that the district

court has authority to craft new exceptions.

McKeever does not cite any case – and we can find

none – in which the Supreme Court upheld a

disclosure pursuant to the district court’s inherent

authority after Rule 6 was enacted. The Supreme

Court once suggested in a dictum that Rule 6 ‘‘is but

declaratory’’ of the principle that disclosure of a grand

jury matter is ‘‘committed to the discretion of the trial

judge,’’ Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395, 399, 79 S.Ct. 1237, 3 L.Ed.2d 1323

(1959), but none of the cases it cited suggests a court

has discretion to disclose grand jury materials apart

from Rule 6. To the contrary, the Court said ‘‘any

disclosure of grand jury [materials] is covered’’ by

Rule 6(e). Id. at 398, 79 S.Ct. 1237. The disclosure

sought in that case – in order to cross-examine a

witness in civil litigation – plainly fell within the

exception for use ‘‘in connection with a judicial

proceeding.’’ Id. at 396 n.1, 79 S.Ct. 1237 (quoting

rule). The only ‘‘discretion’’ at issue involved the

district court’s determination whether the party

seeking material covered by the exception had made

a sufficiently strong showing of need to warrant

disclosure. See id. at 398-99, 79 S.Ct. 1237; see also

Douglas Oil, 441 U.S. at 217-24, 99 S.Ct. 1667

(describing same discretion). Indeed, the Court has

at least four times since suggested the exceptions in

Rule 6(e) are exclusive. In Baggot, 463 U.S. at 47980, 103 S.Ct. 3164, the Court prohibited disclosure of

a witness’s grand jury testimony for use in a civil

investigation by the Internal Revenue Service. The

Court held a civil tax audit was not ‘‘preliminary to

[n]or in connection with a judicial proceeding’’ and

therefore did not come within the exception in what is

now Rule 6(e)(3)(E)(i). In reaching its conclusion, the

Court explained that the exception at issue is ‘‘on its

face, an affirmative limitation on the availability of

court-ordered disclosure of grand jury materials.’’ Id.

at 479, 103 S.Ct. 3164; see also Illinois v. Abbott &

Assocs., Inc., 460 U.S. 557, 567, 103 S.Ct. 1356, 75

L.Ed.2d 281 (1983) (Rule 6(e)(3)(C) ‘‘authorize[s]’’ the

court ‘‘to permit certain disclosures that are otherwise

prohibited by the General Rule of Secrecy’’); United

States v. Williams, 504 U.S. 36, 46 n.6, 112 S.Ct. 1735,

118 L.Ed.2d 352 (1992) (describing Rule 6(e), which

‘‘plac[es] strict controls on disclosure of ‘matters

occurring before the grand jury,’’’ as one of those ‘‘few,

clear rules which were carefully drafted and approved

by this Court and by the Congress to ensure the

integrity of the grand jury’s functions’’); Sells

Engineering, 463 U.S. at 425, 103 S.Ct. 3133 (‘‘In 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’’).

Our understanding of Rule 6(e) is also supported

by this court’s precedents, which require a district

court to hew strictly to the list of exceptions to grand

jury secrecy. For example, In re Sealed Case, 801 F.2d

1379, 1381 (D.C. Cir. 1986), we said Rule 6(e)(2)

‘‘provides that disclosure of ‘matters occurring before

the grand jury’ is prohibited unless specifically

permitted by one of the exceptions set forth in Rule

6(e)(3).’’ A few years later, we reiterated this point In

re Sealed Case, 250 F.3d 764, 768 (D.C. Cir. 2001),

when we held that statements made by government

attorneys to a qui tam court about a witness’s grand

jury testimony were an impermissible disclosure

outside the strictures of Rule 6(e). In so holding, we

rejected the Government’s then-position that there is

a place for implied exceptions to the Rule: ‘‘the Rule

on its face prohibits such a communication because it

does not except it from the general prohibition.’’ Id.

at 769. It would be most peculiar to have stressed

then that the exceptions in Rule 6(e) ‘‘must be

narrowly construed,’’ id. 769, yet to hold now that

they may be supplemented by unwritten additions.3

McKeever and our dissenting colleague cite Haldeman v.

Sirica, 501 F.2d 714 (D.C. Cir. 1974) – which permitted the

disclosure of a sealed grand jury report to aid in the inquiry by

the House Judiciary Committee into possible grounds for

impeachment of President Nixon – as stepping outside the strict

bounds of Rule 6(e). As the dissent acknowledges, however, our

opinion in ‘‘Haldeman . . . contains no meaningful analysis of

Rule 6(e)’s terms.’’ Rather, the court’s opinion is ambiguous as

to its rationale, expressing only a ‘‘general agreement’’ with the

district court’s decision. Id. at 715. The reasoning of the district

court is itself ambiguous; its holding that ‘‘[p]rinciples of grand

jury secrecy do not bar this disclosure’’ is based in part upon

various policy considerations; in part upon the view that grand

jury matters may lawfully be made available to the House of

Representatives as ‘‘a body that in this setting acts simply as

another grand jury’’; and in part upon the view that it ‘‘seems

incredible that grand jury matters should lawfully be available

to disbarment committees and police disciplinary investigations

and yet be unavailable to the House of Representatives in a

proceeding of so great import as an impeachment investigation.’’

See In re Report & Recommendation of June 5, 1972 Grand Jury

10a

McKeever makes three arguments to the contrary.

The first is that Rule 6(e) imposes no obligation of

secrecy upon the district court itself because the

district court is not on the list of ‘‘persons’’ to whom

grand jury secrecy applies per Rule 6(e)(2). See Rule

2(e)(2)(A) (‘‘No obligation of secrecy may be imposed

on any person except in accordance with Rule

6(e)(2)(B)’’). Therefore, the argument goes, the two

Sealed Cases discussed above are inapplicable here

because they deal with disclosures by government

attorneys, not by the court itself, and the court has

authority to order disclosure of grand jury matters

because these materials are ‘‘judicial records’’ over

Concerning Transmission of Evidence to House of

Representatives, 370 F.Supp. 1219, 1228-30 (D.D.C. 1974); id. at

1228 n.39 (citing Special Feb. 1971 Grand Jury v. Conlisk, 490

F.2d 894, 897 (7th Cir. 1973) (police disciplinary investigation)),

and id. at 1229 n.41 (citing Doe v. Rosenberry, 255 F.2d 118, 120

(2d Cir. 1958) (disbarment committee)), both decided per the

‘‘judicial proceeding’’ exception in Rule 6(e).

The dissent also notes that the district court in Haldeman

favorably cited Judge Friendly’s opinion In re Biaggi, 478 F.2d

489 (2d Cir. 1973), which authorized a disclosure not covered by

any Rule 6(e) exception. But Biaggi was carefully limited to the

‘‘special circumstances’’ of that case, id. at 494, in which a grand

jury witness, who is not subject to any secrecy obligation in the

first place, sought disclosure only of his own testimony. See id.

at 492-93. Judge Friendly carefully noted that, if the witness

had not sought his own testimony, then disclosure would have

been improper ‘‘[n]o matter how much, or how legitimately, the

public may want to know’’ how the witness had testified. Id. at

493.

In any event, we read Haldeman as did Judge MacKinnon in

his separate opinion concurring in part, as fitting within the

Rule 6 exception for ‘‘judicial proceedings.’’ See 501 F.2d at 717.

Doing so reads the case to cohere, rather than conflict, with the

Supreme Court and D.C. Circuit precedents discussed above,

which both predate and postdate Haldeman.

11a

which the court has inherent authority. Amicus Br.

24-25 (citing, inter alia, Carlson v. United States, 837

F.3d 753, 758-59 (7th Cir. 2016) (concluding grand

jury records are ‘‘records of the court’’ over which the

district court can exercise inherent authority because

the grand jury is ‘‘part of the judicial process’’)).

We do not agree that the omission of the district

court from the list of ‘‘persons’’ in Rule 6(e)(2)

supports McKeever’s claim. Rule 6 assumes the

records are in the custody of the Government, not that

of the court: When the court authorizes their

disclosure, it does so by ordering ‘‘an attorney for the

government’’ who holds the records to disclose the

materials. See Rule 6(e)(1) (‘‘Unless the court orders

otherwise, an attorney for the government will retain

control of the recording, the reporter’s notes, and any

transcript’’ of the grand jury proceeding). Because an

‘‘attorney for the government’’ is one of the ‘‘persons’’

subject to grand jury secrecy in Rule 6(e)(2)(B), the

Rule need not also list the district court as a ‘‘person’’

in order to make the court, as a practical matter,

subject to the strictures of Rule 6. Indeed, as the

Government explains, a district court is not ordinarily

privy to grand jury matters unless called upon to

respond to a request to disclose grand jury matter. As

to whether records of a grand jury proceeding are

‘‘judicial records’’ – a term not found in Rule 6 – we

note the teaching of the Supreme Court that although

the grand jury may act ‘‘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, 112 S.Ct. 1735; it is

therefore not at all clear that when Rule 6(e)(2)(B)

mentions a ‘‘matter appearing before the grand jury,’’

it is referring to a ‘‘judicial record.’’ The Supreme

12a

Court has never said as much, and we, albeit in

another context, have twice said the opposite: ‘‘[T]he

concept of a judicial record ‘assumes a judicial

decision,’ and with no such decision, there is ‘nothing

judicial to record.’’ SEC v. Am. Int’l Grp., 712 F.3d 1,

3 (D.C. Cir. 2013) (quoting United States v. El-Sayegh,

131 F.3d 158, 162 (D.C. Cir. 1997)).

McKeever’s second argument, which was recently

accepted by the Seventh Circuit in Carlson, is that the

advent of Rule 6 did not eliminate the district court’s

preexisting authority at common law to disclose

grand jury matters because courts ‘‘do not lightly

assume’’ a federal rule reduces the ‘‘scope of a court’s

inherent power.’’ Chambers v. NASCO, Inc., 501 U.S.

32, 47, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (citation

omitted). A federal rule that ‘‘permits a court to do

something and does not include any limiting

language’’ therefore ‘‘should not give rise to a negative

inference that it abrogates the district court’s

inherent power without a ‘clear[] expression of [that]

purpose.’’’ Carlson, 837 F.3d at 763 (quoting Link v.

Wabash R.R. Co., 370 U.S. 626, 631-32, 82 S.Ct. 1386,

8 L.Ed.2d 734 (1962)) (alterations in original). In this

telling, because Rule 6 did not contain a ‘‘clear

expression’’ that it displaced the district court’s

preexisting authority, the court remains free to craft

new exceptions; the rulemakers simply furnished the

list of detailed exceptions ‘‘so that the court knows

that no special hesitation is necessary in those

circumstances.’’ Id. at 764-65.

That account of Rule 6 is difficult to square with

the text of the Rule, which we have examined above.

The ‘‘limiting language,’’ id. at 763, the Seventh

Circuit sought is plain:

Rule 6(e)(2) prohibits

disclosure of a grand jury matter ‘‘unless these rules

13a

provide otherwise.’’

Yet the Seventh Circuit

dismisses this instruction because a limitation

‘‘buried’’ in Rule 6(e)(2) could not ‘‘secretly appl[y]’’ to

‘‘an entirely different subpart,’’ Carlson, 837 F.3d at

764, never mind that this subpart follows

immediately after Rule 6(e)(2) as Rule 6(e)(3).

Because we believe it is necessary to read the

exceptions in subpart (e)(3) in conjunction with the

general rule in subpart (e)(2), we agree with Judge

Sykes’s dissent in Carlson:

As my colleagues interpret the rule, the

limiting language in the secrecy provision has

no bearing at all on the exceptions. . . . But the

two provisions cannot be read in isolation.

They appear together in subpart (e),

sequentially, and govern the same subject

matter. The exceptions plainly modify the

general rule of nondisclosure. Treating the

exceptions as merely exemplary puts the two

provisions at cross-purposes: If the district

court has inherent authority to disclose grandjury materials to persons and in circumstances

not listed in subsection (e)(3)(E), the limiting

phrase ‘‘unless these rules provide otherwise’’

in the secrecy provision is ineffectual.

Id. at 769.

McKeever’s third contention is that the purposes

of grand jury secrecy would not be served by denying

disclosure in this case; the passage of time and likely

death of all witnesses in Frank’s grand jury

proceeding have rendered continued secrecy

pointless.

Of course, these considerations are

irrelevant if the district court lacks authority to create

new exceptions to Rule 6(e). In any event, it is not

14a

clear that continued secrecy serves no purpose in this

case. First, privacy interests can persist even after a

person’s death. See New York Times Co. v. Nat’l

Aeronautics & Space Admin., 920 F.2d 1002, 10091010 (D.C. Cir. 1990). Second, as the Supreme Court

noted in Douglas Oil, there is likely to be a chilling

effect on what a witness is willing to say to a grand

jury if there is a risk the court will later make the

witness’s testimony public. 441 U.S. at 219, 99 S.Ct.

1667. The effect of an exception must be evaluated ex

ante, not ex post. For example, if a witness in Frank’s

grand jury proceedings had known that the public

might learn about his testimony in the future – and

that his words could be immortalized in a book – then

his willingness to testify ‘‘fully and frankly,’’ id., could

have been affected. Furthermore, the risk of a

witness’s testimony being disclosed would grow as

district courts continue over time to create additional

exceptions to grand jury secrecy.

Our concern is not merely hypothetical; as the

Government points out, there has been a steady

stream of requests for disclosures since the district

court first claimed inherent authority In re Petition of

Kutler, 800 F.Supp.2d 42, 50 (D.D.C. 2011) (granting

request to disclose President Nixon’s grand jury

testimony about Watergate due to its historical

importance). See In re Application to Unseal Dockets

Related to the Independent Counsel’s 1998

Investigation of President Clinton, 308 F.Supp.3d 314,

335-36 (D.D.C. 2018) (ordering disclosure of grand

jury materials related to the investigation of

President Clinton’s business dealings and his

relationship with a White House intern); Sennett v.

Dep’t of Justice, 962 F.Supp.2d 270, 283-84 (D.D.C.

2013) (permitting the FBI to withhold grand jury

15a

information in response to a Freedom of Information

Act request despite the requester’s argument for an

exception to grand jury secrecy for historically

important material); In re Nichter, 949 F.Supp.2d

205, 212-13 (D.D.C. 2013) (denying disclosure of

certain grand jury records about Watergate in part

because at least one of the subjects of the testimony

was alive); In re Shepard, 800 F.Supp.2d 37, 39-40

(D.D.C. 2011) (denying as overbroad a request for

disclosure of ‘‘all testimony and materials associated

with every witness before three [Watergate] grand

juries’’).

We recognize that our view of Rule 6(e) differs

from that of some other circuits. See, e.g., Carlson,

837 F.3d at 767, discussed above; In re Craig, 131 F.3d

at 105 (recognizing it is ‘‘entirely conceivable that in

some situations historical or public interest alone

could justify the release of grand jury information’’

because they constitute ‘‘special circumstances’’ in

which release of grand jury records is appropriate

outside the bounds of Rule 6); In re Hastings, 735 F.2d

1261, 1272 (11th Cir. 1984) (allowing a district court

to ‘‘act outside the strict bounds of Rule 6(e), in

reliance upon its historic supervisory power’’ to

disclose grand jury matters to a judicial investigating

committee); Pitch v. United States, 915 F.3d 704, 707

(11th Cir. 2019) (affirming an order to unseal

historically significant grand jury matter ‘‘[b]ecause

we are bound by our decision in Hastings’’). For all

the reasons set forth above, we simply cannot agree.

Instead, we agree with the Sixth Circuit, which

has turned down an invitation to craft an exception to

grand jury secrecy outside the terms of the Rule:

16a

We are not unaware of those commentators

who have urged the courts to make grand jury

materials more accessible to administrative

agencies in an effort to reduce duplicative

investigations. Rule 6(e)(3)(C)(i) is not a rule of

convenience;

without

unambiguous

statement to the contrary from Congress, we

cannot, and must not, breach grand jury

secrecy for any purpose other than those

embodied by the Rule.

In re Grand Jury 89-4-72, 932 F.2d 481, 488 (1991)

(citation omitted). The Eighth Circuit expressed the

same view in United States v. McDougal, 559 F.3d

837, 840 (2009):

McDougal’s argument invoking . . . the ‘‘[c]ourt’s

supervisory power over its own records and

files’’ is unpersuasive. . . . ‘‘[B]ecause the grand

jury is an institution separate from the courts,

over whose functioning the courts do not

preside,’’ United States v. Williams, 504 U.S.

36, 47 [112 S.Ct. 1735, 118 L.Ed.2d 352] (1992),

courts will not order disclosure absent a

recognized exception to Rule 6(e) . . . .

Just so.4

At least three other circuits have expressed the same

view in dicta. See United States v. Educ. Dev. Network Corp.,

884 F.2d 737, 740 (3d Cir. 1989); In re Grand Jury Subpoenas,

Apr., 1978, at Baltimore, 581 F.2d 1103, 1108–09 (4th Cir. 1978);

In re J. Ray McDermott & Co., Inc., 622 F.2d 166, 172 (5th Cir.

1980).

17a

III. Conclusion

Because the district court has no authority outside

Rule 6(e) to disclose grand jury matter, the order of

the district court denying McKeever’s petition is

Affirmed.

Appendix

Federal Rule of Criminal Procedure 6: The

Grand Jury

(e) Recording

and

Disclosing

the

Proceedings.

(1) Recording the Proceedings. Except while

the grand jury is deliberating or voting, all

proceedings must be recorded by a court reporter

or by a suitable recording device. But the

validity of a prosecution is not affected by the

unintentional failure to make a recording.

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.

(2) Secrecy.

(A) No obligation of secrecy may be imposed on

any person except in accordance with Rule

6(e)(2)(B).

(B) Unless these rules provide otherwise, the

following persons must not disclose a matter

occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

18a

(v) a person who transcribes recorded

testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made

under Rule 6(e)(3)(A)(ii) or (iii).

(3) Exceptions.

(A) Disclosure of a grand-jury matter – other

than the grand jury’s deliberations or any

grand juror’s vote – may be made to:

(i) an attorney for the government for use in

performing that attorney’s duty;

(ii) any government personnel – including

those of a state, state subdivision, Indian tribe,

or foreign government – that an attorney for

the government considers necessary to assist in

performing that attorney’s duty to enforce

federal criminal law; or

(iii) a person authorized by 18 U.S.C. § 3322.

(B) A person to whom information is disclosed

under Rule 6(e)(3)(A)(ii) may use that

information only to assist an attorney for the

government in performing that attorney’s

duty to enforce federal criminal law. An

attorney for the government must promptly

provide the court that impaneled the grand

jury with the names of all persons to whom

a disclosure has been made, and must certify

that the attorney has advised those persons

of their obligation of secrecy under this rule.

any grand-jury matter to another federal

grand jury.

(D) An attorney for the government may disclose

any grand-jury matter involving foreign

19a

intelligence, counterintelligence (as defined

in 50 U.S.C. § 3003), or foreign intelligence

information (as defined in Rule 6(e)(3)(D)(iii))

to any federal law enforcement, intelligence,

protective, immigration, national defense, or

national security official to assist the official

receiving the information in the performance

of that official’s duties. An attorney for the

government may also disclose any grandjury matter involving, within the United

States or elsewhere, a threat of attack or

other grave hostile acts of a foreign power or

its agent, a threat of domestic or

international sabotage or terrorism, or

clandestine intelligence gathering activities

by an intelligence service or network of a

foreign power or by its agent, to any

appropriate federal, state, state subdivision,

Indian tribal, or foreign government official,

for the purpose of preventing or responding

to such threat or activities.

(i) Any official who receives information under

Rule 6(e)(3)(D) may use the information only as

necessary in the conduct of that person’s

official duties subject to any limitations on the

unauthorized disclosure of such information.

Any state, state subdivision, Indian tribal, or

foreign government official who receives

information under Rule 6(e)(3)(D) may use the

information only in a manner consistent with

any guidelines issued by the Attorney General

and the Director of National Intelligence.

(ii) Within a reasonable time after disclosure is

made under Rule 6(e)(3)(D), an attorney for the

government must file, under seal, a notice with

20a

the court in the district where the grand jury

convened stating that such information was

disclosed and the departments, agencies, or

entities to which the disclosure was made.

(iii) As used in Rule 6(e)(3)(D), the term

‘‘foreign intelligence information’’ means:

(a) information, whether or not it concerns a

United States person, that relates to the ability

of the United States to protect against–

• actual or potential attack or other grave

hostile acts of a foreign power or its agent;

• sabotage or international terrorism by a

foreign power or its agent; or

• clandestine intelligence activities by an

intelligence service or network of a foreign

power or by its agent; or

(b) information, whether or not it concerns a

United States person, with respect to a foreign

power or foreign territory that relates to–

• the national defense or the security of the

United States; or

• the conduct of the foreign affairs of the

United States.

(E) The court may authorize disclosure – at a

time, in a manner, and subject to any other

conditions that it directs – of a grand-jury

matter:

(i) preliminarily to or in connection with a

judicial proceeding;

(ii) at the request of a defendant who shows

that a ground may exist to dismiss the

indictment because of a matter that occurred

before the grand jury;

21a

(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 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.

(F) A petition to disclose a grand-jury matter

under Rule 6(e)(3)(E)(i) must be filed in the

district where the grand jury convened. . . .

[Remainder of Rule 6 omitted.]

22a

Srinivasan, Circuit Judge, dissenting:

The central issue in this case is whether a district

court can authorize the release of grand jury

materials in circumstances beyond those expressly

identified in Rule 6(e) of the Federal Rules of Criminal

Procedure. If not, grand jury materials falling outside

Rule 6(e)’s exceptions cannot be released even if there

is a strong public interest favoring disclosure and no

enduring interest in secrecy. My colleagues read Rule

6 to compel that result. In my respectful view,

however, our court’s en banc decision in Haldeman v.

Sirica, 501 F.2d 714 (1974), allows for district court

disclosures beyond Rule 6(e)’s exceptions.

Rule 6(e) “codifies the traditional rule of grand

jury secrecy.” United States v. Sells Eng’g, Inc.,

463 U.S. 418, 425 (1983). The Rule imposes an

obligation of secrecy on certain persons, Rule 6(e)(2),

but then sets out five exceptions to that obligation,

Rule 6(e)(3)(A)–(E). The first four exceptions allow

for disclosure without a need for district court

authorization. The last exception describes five

circumstances in which “[t]he court may authorize

disclosure . . . of a grand-jury matter.”

Rule

6(e)(3)(E)(i)–(v) (emphasis added). None of those

circumstances applies in this case.

The crucial question for our purposes, then, is

whether Rule 6(e)(3)’s exceptions identify the only

circumstances in which a district court may authorize

disclosure of grand jury materials. Or, alternatively,

does a court retain inherent discretion to consider

releasing

grand

jury

materials

other

circumstances—potentially including, as relevant

here, for reasons of historical significance?

23a

In Haldeman, this court, sitting en banc, faced the

contention that a district court’s authority to disclose

grand jury materials is confined to the exceptions in

Rule 6(e). The district court in that case had ordered

the disclosure of materials from the Watergate grand

jury to the House Judiciary Committee for its

consideration

investigating

the

possible

impeachment of President Nixon. Only one of the

exceptions in Rule 6(e) even arguably applied: when

disclosure occurs “preliminarily to or in connection

with a judicial proceeding.” See Rule 6(e)(3)(E)(i).

The petitioners in Haldeman asked our court to

prohibit the district court from releasing the grand

jury materials to the House Judiciary Committee. We

declined to do so and instead sustained the district

court’s disclosure order. 501 F.2d at 716. Our

decision thus settled that a district court retains

discretion to release grand jury matter to a House

Committee in the specific context of an impeachment

inquiry.

But what are the implications of our decision in

Haldeman for a district court’s authority to release

grand jury materials outside the impeachment

context? And, in particular, does a district court

possess inherent discretion to consider disclosure

beyond the specific exceptions set out in Rule 6(e)—

including, as relevant here, for reasons of historical

significance?

The petitioners in Haldeman argued no. They

believed the district court lacked discretion to disclose

the grand jury materials to the House Judiciary

Committee unless the circumstances fit within the

Rule 6(e) exception for judicial proceedings. They

“asserted, both in the District Court and here, that

the discretion ordinarily reposed in a trial court to

24a

make such disclosure of grand jury proceedings as he

deems in the public interest is, by the terms of Rule

6(e) . . . limited to circumstances incidental to judicial

proceedings and that impeachment does not fall into

that category.” Id. at 715.

In rejecting the petitioners’ argument, we said

that the district judge, Chief Judge Sirica, “ha[d]

dealt at length with this contention,” that we were “in

general agreement with his handling of the[]

matter[],” and that “we fe[lt] no necessity to expand

his discussion.” Id. Our decision thereby subscribed

to Chief Judge Sirica’s rationale for his disclosure

order. The question for our purposes, then, is whether

he ordered the disclosure on an understanding that

he had inherent discretion to release grand jury

materials outside the Rule 6(e) exceptions, or whether

he instead believed he was confined to those

exceptions but that the disclosure to the House

Judiciary Committee fit within the exception for

judicial proceedings.

I understand Chief Judge Sirica to have adopted—

and thus our court to have ratified—the former

understanding. He began his analysis by stating

that, as to “the question of disclosure,” “judicial

authority” is “exclusive.”

In re Report &

Recommendation of June 5, 1972 Grand Jury, 370

F.Supp. 1219, 1226 (D.D.C. 1974). He noted decisions

that had assessed the propriety of disclosure by

weighing, “among other criteria, judicial discretion

over grand jury secrecy, the public interest, and

prejudice to persons named by the [grand jury]

report.” Id. at 1227. Those considerations led him to

conclude “that delivery to the Committee is eminently

proper, and indeed, obligatory.” Id.

25a

Judge Sirica identified the “only significant

objection to disclosure” to be “the contention that

release . . . is absolutely prohibited by Rule 6(e).” Id.

He emphasized, though, 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.” Id. (emphasis in original). He reviewed

decisions addressing the exception for judicial

proceedings and concluded that the “difficulty in

application of Rule 6(e) to specific fact situations

likely arises from the fact that its language regarding

‘judicial proceedings’ can imply limitations on

disclosure much more extensive than were apparently

intended.” Id. at 1229.

Of particular salience, Judge Sirica favorably

referenced a then-recent “opinion written by Chief

Judge Friendly” in which “the Second Circuit held

that Rule 6(e) did not bar public disclosure of grand

jury minutes[] wholly apart from judicial

proceedings.” Id. (emphasis added). The Second

Circuit had found that the judicial-proceeding

exception was “inapplicable” because the court had

“not been told of any judicial proceeding preliminary

to or in connection with which the . . . grand jury

testimony may be relevant.” In re Biaggi, 478 F.2d

489, 492 (2d Cir. 1973). But the court still allowed

disclosure, even though no Rule 6(e) exception

applied. Id. at 492–93; see id. at 493–94 (Hays, J.,

dissenting) (noting that the majority allowed

disclosure even though it “concede[d] that the present

situation does not present a case for the application of

any of the exceptions specified in the Rule”).

Judge Sirica, in concluding that “[p]rinciples of

grand jury secrecy do not bar [the] disclosure” at issue

in Haldeman, explained that he was “persuaded to

26a

follow the lead . . . of Judges Friendly and Jameson”

in Biaggi. 370 F.Supp. at 1230. He also listed

additional decisions he was “persuaded to follow” in

which disclosure had been authorized. Id. Those

decisions, like Biaggi, did not involve disclosures

justified on the theory that they fell within any Rule

6(e) exception. I thus understand Judge Sirica to

have ordered disclosure on the understanding that he

retained inherent discretion to release grand jury

materials outside of Rule 6(e)’s exceptions.

Granted, Judge Sirica at one point described the

House Judiciary Committee as “a body that in this

setting acts simply as another grand jury.” Id. But,

as his reliance on Biaggi and the other decisions

shows, he did not compare the Committee to “another

grand jury” on any theory that the Committee’s

investigation implicated the judicial-proceedings

exception. In fact, the Advisory Committee later

added an exception allowing disclosures from one

grand jury to another, reasoning that such a transfer

fell outside the pre-existing judicial-proceedings

exception. See Rule 6(e)(3)(C) advisory committee’s

note to 1983 amendment. Rather, Judge Sirica

compared the Committee to “another grand jury” to

convey that the Committee likewise would “insure

against unnecessary and inappropriate disclosure.”

370 F.Supp. at 1230.

For those reasons, when our court in Haldeman

endorsed Judge Sirica’s approach, we in my view

affirmed his understanding that a district court

retains discretion to release grand jury materials

outside the Rule 6(e) exceptions.

To be sure,

Haldeman—unlike my colleagues’ careful opinion in

this case—contains no meaningful analysis of Rule

6(e)’s terms. But Rule 6(e) has not changed since

27a

Haldeman in any way material to the issue we

address today. And my reading of Haldeman squares

with the reading of the decision adopted by each of our

sister circuits to have interpreted it. See Pitch v.

United States, 915 F.3d 704, 710 n.5 (11th Cir. 2019);

Carlson v. United States, 837 F.3d 753, 766 (7th Cir.

2016). It also squares with the Advisory Committee’s

evident reason for declining to add a Rule 6(e)

exception for historically-significant materials—viz.,

that district courts already authorized such

disclosures as a matter of their inherent authority.

See Pitch, 915 F.3d at 715 (Jordan, J., concurring). It

is also consistent with various decisions relied on by

my colleagues, see supra at 845–47 & n.3, none of

which dealt with whether courts can order disclosures

outside of Rule 6(e)’s exceptions.

Because my colleagues conclude that district

courts lack authority to release grand jury materials

outside the Rule 6(e) exceptions, they have no

occasion to decide whether, if district courts do have

that authority, the district court in this case

appropriately declined to exercise it. I therefore do

not reach that issue either. But on the threshold

question of whether district courts have discretion to

consider disclosures beyond Rule 6(e), I respectfully

dissent from my colleagues’ view based on my

different reading of our decision in Haldeman.

28a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IN RE PETITION OF

STUART MCKEEVER

)

) Misc. Action No. 13) 54 (RCL)

)

MEMORANDUM OPINION & ORDER

Before the Court is petitioner’s Motion for Release

of Grand Jury Testimony and Records in the Matter

of United States vs. John Joseph Frank a/k/a/ “John

Kane” [1]. Upon consideration of the motion, the

government’s opposition [10] and reply thereto [13],

and the applicable law, the Court will deny the

motion, for the reasons set forth below.

I. BACKGROUND

Stuart McKeever, an independent researcher and

author, is seeking the release of grand jury testimony

and records related to the indictment of John Joseph

Frank in May 1957. Petitioner argues that both

Federal Rule of Criminal Procedure 6(e) and the

Court’s “inherent supervisory authority” over grand

juries empower the Court to order the requested

disclosure.1

He further raises the nine-factor

The Court observes that the petitioner has cited to a nonexistent subsection of the Federal Rules of Criminal Procedure,

§ 6(e)(3)(c)(i), as the basis of his rule-based argument. The

petitioner also curiously did not incorporate paragraphs 18 or 19

of his complaint into his argument concerning the Court’s

inherent authority. Nevertheless, this Court construes liberally

motions filed by pro se litigants, and will accordingly do so here.

See Bowman v. lddon, 848 F.3d 1034, 1039 (D.C. Cir. 2017).

29a

balancing test articulated by the Second Circuit in In

re Petition of Craig, 131 F.3d 99 (2d Cir.1997), as

militating in favor of that disclosure. The government

opposes the petition, arguing 1) the requested

disclosure falls outside the exceptions to grand jury

secrecy set forth in Federal Rule of Criminal

Procedure 6(e), 2) the Craig court’s analysis is

contrary to Supreme Court precedent, and 3) that, in

any event, the Frank case lacks the historical

significance that weighed in favor of disclosure in

other cases.

The material at issue concerns former law

enforcement agent and attorney John Joseph Frank,

allegedly also known as “John Kane.” According to

news reports, Frank graduated from Georgetown

University and Georgetown University Law Center,

spent nearly eight years as a Special Agent of the

Federal Bureau of Investigation in the 1940s, a few

more years as a lawyer for the Central Intelligence

Agency, and then left government service for the

private practice of law. [13-4]2

On May 13, 1957, a federal grand jury in the

District of Columbia indicted Frank for failure to

Registration Act of 1938 (FARA), June 8, 1938, ch.

327, 52 Stat. 631 (22 §§ 611 to 621), accusing Frank of

acting on behalf of the regime of Dominican dictator

Rafael Trujillo. The grand jury that indicted Frank

was reportedly investigating the disappearances of

Petitioner’s reply [13] includes 19 pages of uncited

narrative, except to the petitioner’s own prior work, explaining

the historical significance of the Galindez matter. The Court

makes no findings as to the accuracy or truth of either the

narrative or the attached press reports.

30a

Jesus Maria de Galindez, a Columbia University

professor critical of the Trujillo regime, and Gerald

Murphy, an American pilot suspected of having

something to do with Galindez’s disappearance.

Galindez was last seen in New York City on March

12, 1956.

Petitioner has been researching the Galindez

disappearance and surrounding events since 1980.

Motion for Release of Grand Jury Testimony and

Records at *2 [1]. His research has led him to

conclude that Frank masterminded the Galindez

kidnapping on orders from Trujillo, using Murphy to

covertly fly Galindez from New York to the Dominican

Republic to be tortured and murdered by Dominican

agents. Id. at *3. Murphy himself was then killed in

the Dominican Republic in December 1956, petitioner

claims, by Dominican agents to keep him from talking

about the Galindez kidnapping.

Frank was never charged with having a role in the

Galindez or Murphy disappearances, but was

convicted by a jury on the FARA charges. That

conviction was reversed by the Court of Appeals,

however, because prosecutors made prejudicial

statements during trial linking Frank to the

“Galindez-Murphy affair.” Frank v. U.S., 262 F.2d

695 (D.C. Cir. 1958).

II. DISCUSSION

In In re Petition of Stanly Kutler, 800 F.Supp.2d

42 (D.D.C., 2011), this Court authorized the

disclosure of President Richard Nixon’s grand jury

testimony and associated materials of the Watergate

Special Prosecution Force (WSPF), subject to the

review procedures of the National Archives and

Records Administration (NARA). Mr. McKeever asks

31a

the Court to find that his requested materials also

merit disclosure under the standards articulated in

Kutler. For its part, the government, which did not

appeal the Kutler ruling, argues here that this Court

was wrong to grant disclosure in the former case, that

the Second Circuit was wrong in its articulation of the

“special circumstances” doctrine that this Court

applied, and that, regardless of the above, disclosure

outside of Rule 6(e) would be inappropriate here.

A. Standard for Disclosure of Grand Jury

Records

There is a tradition in the United States—one that

is “older than our Nation itself”—that proceedings

before a grand jury should remain secret. In re

Biaggi, 478 F.2d 489, 491 (2d Cir. 1973) (quoting

Pittsburgh Plate Glass Co. v. United States, 360 U.S.

295, 399 (1959)). This tradition is codified in Federal

Rule of Criminal Procedure 6(e). See Douglas Oil Co.

v. Petrol Stops Nw., 441 U.S. 211, 218–19 n.9 (1979).

The rule of secrecy is justified by a number of law

enforcement and criminal justice objectives,

including:

(1) [t]o 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; [and] (5) to protect

32a

[the] 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.

United States v. Procter & Gamble Co., 356 U.S. 677,

681–82 n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)

(quoting United States v. Rose, 215 F.2d 617, 628–29

(3d Cir.1954)).

But the rule of grand jury secrecy is not without

exceptions. These exceptions, which “have developed

historically alongside the secrecy tradition,” are

codified in Rule 6(e)(3). In re Petition of Craig, 131

F.3d 99, 102 (2d Cir.1997). The exceptions recognized

in Rule 6(e)(3) were codified to promote the efficiency

of law enforcement and the criminal justice process

after a series of overly restrictive judicial rulings that

preceded the rule’s enactment. See S. Rep. 95-354,

1977 U.S.C.C.A.N. 527; Carlson, 837 F.3d at 765

(according the Committee notes “some weight”). The

enacted Rule 6(e) did not “define” prosecutors’

abilities to disclose grand jury material, but merely

“facilitate[d]” it in light of some rulings to the

contrary. S. Rep. 95-354, 1977 U.S.C.C.A.N. at 52932.

In addition to those exceptions articulated in Rule

6(e)(3), courts have recognized there may be “special

circumstances in which release of grand jury records

is appropriate even outside the boundaries of the

rule.” Craig, 131 F.3d at 102 (quoting Biaggi, 478

F.2d at 494 (supplemental opinion) (internal

quotations omitted) (holding that Rule 6(e) did not bar

the public disclosure of grand jury minutes, even

where no Rule 6(e) exception applied, when sought by

the grand jury witness himself)). In Craig, the Second

33a

Circuit embraced the “special circumstances”

exception first recognized by Chief Judge Friendly in

Biaggi, holding that “permitting departures from

Rule 6(e) is fully consonant with the role of the

supervising court and will not unravel the

foundations of secrecy upon which the grand jury is

premised.” Id. at 103.

The Craig court explained that the special

circumstances exception “is consistent with the

origins of Rule 6(e), which reflects rather than creates

the relationship between federal courts and grand

juries.” Id. (citing Pittsburgh Plate Glass Co., 360

U.S. at 399, 79 S.Ct. 1237 (explaining 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 judge”)). Judge Calabresi, writing for the

court, noted that the Second Circuit was not alone in

this view. See id. at 103 & nn.3–4 (citing In re

Hastings, 735 F.2d 1261, 1268–69 (11th Cir.1984)

(describing courts’ “inherent power” to authorize the

disclosure of grand jury records outside of Rule 6(e))).

Since Craig, the Seventh Circuit has likewise

declared that circuit’s recognition of district courts’

inherent authority to disclose grand jury information

outside of the strictures of Rule 6(e). Carlson v.

United States, 837 F.3d 753 (7th Cir. 2016).

In granting the Kutler petition to unseal President

Nixon’s grand jury testimony, this Court agreed that

“special circumstances” may justify the release of

grand jury materials outside the bounds of Rule 6(e).

The Court found that the special circumstances

exception, first applied in the Second Circuit, is wellgrounded in district courts’ inherent supervisory

authority to order the release of grand jury materials.

Moreover, the exception, by its very nature, applies

34a

only in exceptional circumstances, requiring a

nuanced and fact-intensive assessment of whether

disclosure is justified.

The government’s argument that no disclosure of

grand jury information is permissible outside the

strictures of Rule 6(e) remains unconvincing. The

government relies heavily on the Supreme Court’s

instruction that a district court’s inherent power

“does not include the power to develop rules that

circumvent or conflict with the Federal Rules of

Criminal Procedure.” Carlisle v. United States, 517

U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996)

(holding that a district court had no authority to grant

a motion for judgment of acquittal filed one day

outside of Rule 29(c)’s time limit); see also Bank of

Nova Scotia v. United States, 487 U.S. 250, 254–55,

108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (holding that

a district court could not invoke its supervisory power

to circumvent Rule 52(a)’s harmless error standard).

But that principle is inapplicable here, where the

relevant rules are silent as to other circumstances

that may merit disclosure. See also Carlson, 837 F.3d

at 755 (“We find nothing in the text of Rule 6(e) (or

the criminal rules as a whole) that supports the

government’s exclusivity theory, and we find much to

indicate that it is wrong.”).

Indeed, Carlisle dealt with a district court that

had “contradicted the plain language” of Rule 29(c) by

“effectively annull[ing]” its specified time limit.

Carlisle, 517 U.S. at 426, 116 S.Ct. 1460. In contrast,

courts have historically exercised their supervisory

power to develop appropriate exceptions to the rule of

grand jury secrecy. See In re Hastings, 73 5 F .2d

1261, 1268–69 (11th Cir.1984) (tracing the history of

how courts’ inherent power has shaped Rule 6(e)); In

35a

re Report and Recommendation of June 5, 1972 Grand

Jury, 370 F.Supp. 1219, 1229 (D.D.C.1974) (citing

Biaggi for the proposition that Rule 6(e) “remains

subject to the law or traditional policies that gave it

birth”). Nothing in Carlisle precludes the exercise of

that power in “exceptional circumstances consonant

with the rule’s policy and spirit.” Hastings, 735 F.2d

at 1269.

Contrary to the facts of Carlisle, the Court’s

decision today is consistent with, or at least certainly

does not contradict the text and history of the rule.3

See also Carlson. at 764–65. Further, the fact

remains that it would make little sense for a rule of

criminal procedure to include provisions for

permissive disclosure for purposes other than

contemporary law enforcement and criminal justice

functions that constitute at least four of the five

interests the tradition of grand jury secrecy is meant

It is noteworthy that the inherent supervisory power of

the Court over a grand jury is also implicitly recognized in more

than a dozen provisions of Rule 6. See, e.g., §§ (a)(l) (summoning

grand juries), (a)(2) (providing for judicial discretion as to

alternate grand jurors); (c) (appointing a foreperson);

(e)(l) (determining control of records of proceedings); (e)(3)(B)

(oversight of Rule 6(e)(3)(A)(ii) disclosures); (e)(3)(D)(ii)

(oversight of Rule 6(e)(3)(D) disclosures); (e)(3)(E) (discretion to

authorize contemporary disclosures for ongoing proceedings or

law enforcement purposes); (e)(3)(F) (oversight of Rule

6(e)(3)(E)(i) disclosures); (e)(5) (closing hearings “to the extent

necessary” to prevent disclosure of a matter occurring (in the

present tense) before a grand jury); (e)(7) (discretion concerning

contempt findings); (g) (discharging grand juries); (h) (discretion

to excuse grand jurors). In addition, the history of the Notes of

the Advisory Committee on Rules are replete with

acknowledgements of courts’ discretion concerning disclosure of

grand jury information in a variety of circumstances.

36a

to protect.4 Cf. Procter & Gamble, 356 U.S. at 681–82

n. 6. See also S. Rep. 95-354, 1977 U.S.C.C.A.N. at

531 (indicating that the restrictions on disclosure

enumerated in Rule 6(e) sought “to allay the concerns

of those” who feared the possibility of prosecutorial

misconduct via improper disclosures of grand jury

investigations, not abuses of judicial discretion).

Instead, it is left to the district court’s sound

discretion, as it was prior to 1977, to hear petitions for

disclosure on their merits, and grant them, in whole

or in part, if and when it is appropriate to do so. The

factors enumerated in In re Petition of Craig, 131 F.3d

99 (2d Cir. 1997), appropriately guide a district court

in the exercise of its discretion to unseal grand jury

records. These factors include:

(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

Indeed, although there is no First Amendment right of

access to grand jury proceedings, In re Motions of Dow Jones &

Co., 142 F.3d 496, 499 (D.C. Cir. 1998), it is antithetical to our

system of government to say that some class of public records is,

forever and always, off-limits even from consideration for public

release, even after the underlying practical needs for secrecy in

the records has long since lapsed. In a constitutional democracy

that values openness and transparency in government records,

no matter how sensitive, Cf. 5 U.S.C. § 552; Exec. Order. 13526,

§ 3.l(a), it is imperative that the Court look to the underlying

purpose of any rule calling for nearly unqualified secrecy of a

class of records for perpetuity.

37a

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.

Id. at 106. See also Carlson v. United States, 837 F.3d

753 (7th Cir. 2016).

B. Merits of the Petition

The Craig factors enumerated above properly

balance special circumstances that might justify

disclosure against the need to maintain grand jury

secrecy. In Kutler, this Court found the relevant

factors to weigh in favor of unsealing President

Nixon’s testimony and associated WSPF materials.

Specifically, the Court held that the undisputed

historical interest in the narrowly-tailored request for

records outweighed the need to maintain the secrecy

of those records. Here, too, the Court will consider

those factors in determining whether petitioner has

demonstrated that the disclosure of grand jury

records related to John Frank is justified.

The court finds several of the Craig factors would

favor disclosure in this case. Mr. McKeever himself is

a bona fide author who has been researching this case

since 1980, and has published a book on it. Disclosure

is being sought for reasons in accord with that

purpose – furthering Mr. McKeever’s research on the

topic. Nearly sixty years have passed since the grand

jury held its hearings, and the principals and

witnesses who might be affected by disclosure of the

records are likely deceased.

38a

The government argues, however, that even under

Craig’s special circumstances test, the petition fails to

meet that test because the historical value of the

Frank case does not rise to the level of meriting

release. Although not by itself determinative, “the

government’s position should be paid considerable

heed.” In re Craig, 131 F.3d at 106. The government’s

opposition, however, would best be framed in the

context of the historic reasons for the tradition of

grand jury secrecy. Cf. Procter & Gamble, 356 U.S. at

681–82 n. 6. Instead, the government’s main focus is

on the historic value of the requested records, or lack

thereof. See, e.g., Memorandum in Opposition at *24

[10] (arguing there is “no basis to believe that the

records here are of exceptional historic importance.”).

Any qualitative judgment about what events are

properly considered “historic” necessarily includes a

great degree of subjectivity. The Court agrees with

the government to the extent that it is objectively true

that the Galindez kidnapping does not carry the

lasting impact on the structure of our civics and

culture that the Watergate scandal does. But it also

is simply not credible to argue that there is not

historic value in studying the details of a case

involving an individual who served as a federal agent

in what is arguably the nation’s premier law

enforcement agency, then an attorney at what is

arguably the nation’s premier intelligence agency,

who was subsequently employed by and took orders

from an unfriendly foreign government, possibly to

include the abduction from the United States and

murder of a refugee.

A case involving lethal

operations by United States citizens acting as foreign

39a

agents inside the United States is not merely

“interesting.” Id. at **22, 23.5

Nevertheless, Mr. McKeever’s petition seeks a far

broader range of records than what was sought in

Kutler, and the sheer breadth of Mr. McKeever’s

petition renders disclosure outside of Rule 6(e)

inappropriate. See also In re Shepard, 800 F.Supp.2d

37 (D.D.C. 2011). Rather than the grand jury

testimony of a single witness, Mr. McKeever seeks the

release of unspecified, and thus presumptively all,

“testimony and records in the Frank case . . .” Motion

for Release of Grand Jury Testimony and Records

at** 1, 4 [1]. “There are obvious differences between

releasing one witness’s testimony, the full transcript,

or merely the minutes of the proceeding.” Craig, 131

F .3d at 106. Indeed, the government represents that

such disclosure would amount to “thousands of pages

documents

and

numerous

witnesses.”

Memorandum in Opposition *2 [10]. Thus, the fourth

Craig factor, which addresses the scope of information

sought, weighs heavily against disclosure.

Furthermore, the sheer volume of material

requested implicates at least one of the secrecy

concerns recognized by the Supreme Court – that of

protecting the privacy of individuals who may have

been subjects of the grand jury’s investigation, but

were never indicted. See United States v. Procter &

Gamble Co., 356 U.S. 677, 681–82 n. 6, 78 S.Ct. 983,

The Court notes that, if there is indeed a credible factual

basis for petitioner’s allegation that then-active U.S.

government agents were also involved, see [1] at **6-7; [13] at

**14-15, 29, that would tend to weigh even more heavily in favor

of disclosure. Mere speculation, however, can be accorded no

weight.

40a

2 L.Ed.2d 1077 (1958) (noting that, among the goals

achieved by grand jury secrecy is protecting an

innocent accused who has been exonerated “from

disclosure of the fact that he has been under

investigation”) (quoting United States v. Rose, 215

F.2d 617, 628–29 (3d Cir.1954)). See also In re

Nichter, 949 F.Supp.2d 205, 213-14 (D.D.C. 2013).

Although most privacy protections do not extend to

deceased individuals, the involvement of persons in

criminal proceedings who themselves are never

indicted or tried nevertheless is presumed to merit

continued secrecy, with only the rarest of exceptions,

as recognized in Kutler. Additionally, Mr. McKeever’

s blanket request for all the records associated with

the case makes it impossible for the Court to assess

the status of the families of the principals or

witnesses involved in the Frank investigation.

III. CONCLUSION

For these reasons, it is hereby

ORDERED that Mr. McKeever’s Petition [1] is

DENIED.

SO ORDERED this 22nd day of May, 2017.

s/ Royce C. Lamberth

ROYCE C. LAMBERTH

United States District

Court

41a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 17-5149

September Term, 2018

1:13-mc-00054-RCL

Filed On: July 22, 2019

Stuart A. McKeever,

Appellant

William P. Barr, Attorney General,

Appellee

BEFORE: Garland, Chief Judge; Henderson,

Rogers, Tatel, Griffith, Srinivasan,

Millett, Pillard, Wilkins, Katsas, and

Rao, Circuit Judges

ORDER

Appellant’s petition for rehearing en banc and the

response thereto were circulated to the full court, and

a vote was requested. Thereafter, a majority of the

judges eligible to participate did not vote in favor of

the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken R. Meadows

Deputy Clerk

42a

Federal Rule of Criminal Procedure 6(e)

Rule 6. The Grand Jury

***

(e) Recording and Disclosing the Proceedings.

(1) Recording the Proceedings. Except while the

grand jury is deliberating or voting, all

proceedings must be recorded by a court reporter

or by a suitable recording device. But the validity

of a prosecution is not affected by the

unintentional failure to make a recording. 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.

(2) Secrecy.

(A) No obligation of secrecy may be imposed on

any person except in accordance with Rule

6(e)(2)(B).

(B) Unless these rules provide otherwise, the

following persons must not disclose a matter

occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded

testimony;

(vi) an attorney for the government; or

43a

(vii) a person to whom disclosure is made

under Rule 6(e)(3)(A)(ii) or (iii).

(3) Exceptions.

(A) Disclosure of a grand-jury matter—other

than the grand jury’s deliberations or any

grand juror’s vote—may be made to:

(i) an attorney for the government for use in

performing that attorney’s duty;

(ii) any government personnel—including

those of a state, state subdivision, Indian

tribe, or foreign government—that an

attorney for the government considers

necessary to assist in performing that

attorney’s duty to enforce federal criminal

law; or

(iii) a person authorized by 18 U.S.C.

§ 3322.

(B) A person to whom information is disclosed

under Rule 6(e)(3)(A)(ii) may use that

information only to assist an attorney for the

government in performing that attorney’s duty

to enforce federal criminal law. An attorney for

the government must promptly provide the

court that impaneled the grand jury with the

names of all persons to whom a disclosure has

been made, and must certify that the attorney

has advised those persons of their obligation of

secrecy under this rule.

disclose any grand-jury matter to another

federal grand jury.

44a

(D) An attorney for the government may

disclose any grand-jury matter involving

foreign intelligence, counterintelligence (as

defined in 50 U.S.C. § 3003), or foreign

intelligence information (as defined in Rule

6(e)(3)(D)(iii)) to any federal law enforcement,

intelligence, protective, immigration, national

defense, or national security official to assist

the official receiving the information in the

performance of that official’s duties.

attorney for the government may also disclose

any grand-jury matter involving, within the

United States or elsewhere, a threat of attack

or other grave hostile acts of a foreign power or

its agent, a threat of domestic or international

sabotage or terrorism, or clandestine

intelligence gathering activities by an

intelligence service or network of a foreign

power or by its agent, to any appropriate

federal, state, state subdivision, Indian tribal,

or foreign government official, for the purpose

of preventing or responding to such threat or

activities.

(i) Any official who receives information

under Rule 6(e)(3)(D) may use the

information only as necessary in the

conduct of that person’s official duties

subject to any limitations on the

unauthorized

disclosure

such

information. Any state, state subdivision,

Indian tribal, or foreign government official

who receives information under Rule

6(e)(3)(D) may use the information only in a

manner consistent with any guidelines

45a

issued by the Attorney General and the

Director of National Intelligence.

(ii) Within a reasonable time after

disclosure is made under Rule 6(e)(3)(D), an

attorney for the government must file,

under seal, a notice with the court in the

district where the grand jury convened

stating that such information was disclosed

and the departments, agencies, or entities

to which the disclosure was made.

(iii) As used in Rule 6(e)(3)(D), the term

”foreign intelligence information” means:

(a) information, whether or not it

concerns a United States person, that

relates to the ability of the United States

to protect against—

• actual or potential attack or other

grave hostile acts of a foreign power or

its agent;

• sabotage or international terrorism

by a foreign power or its agent; or

• clandestine intelligence activities by

an intelligence service or network of a

foreign power or by its agent; or

(b) information, whether or not it

concerns a United States person, with

respect to a foreign power or foreign

territory that relates to—

• the national defense or the security

of the United States; or

• the conduct of the foreign affairs of

46a

the United States.

(E) The court may authorize disclosure—at a

time, in a manner, and subject to any other

conditions that it directs—of a grand-jury

matter:

(i) preliminarily to or in connection with a

judicial proceeding;

(ii) at the request of a defendant who shows

that a ground may exist to dismiss the

indictment because of a matter that

occurred before the grand jury;

(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 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.

(F) A petition to disclose a grand-jury matter

under Rule 6(e)(3)(E)(i) must be filed in the

district where the grand jury convened. Unless

the hearing is ex parte—as it may be when the

government is the petitioner—the petitioner

47a

must serve the petition on, and the court must

afford a reasonable opportunity to appear and

be heard to:

(i) an attorney for the government;

(ii) the parties to the judicial proceeding;

and

(iii) any other person whom the court may

designate.

(G) If the petition to disclose arises out of a

judicial proceeding in another district, the

petitioned court must transfer the petition to

the other court unless the petitioned court can

reasonably determine whether disclosure is

proper. If the petitioned court decides to

transfer, it must send to the transferee court

the material sought to be disclosed, if feasible,

and a written evaluation of the need for

continued grand-jury secrecy. The transferee

court must afford those persons identified in

Rule 6(e)(3)(F) a reasonable opportunity to

appear and be heard.

(4) Sealed Indictment. The magistrate judge to

whom an indictment is returned may direct that

the indictment be kept secret until the defendant

is in custody or has been released pending trial.

The clerk must then seal the indictment, and no

person may disclose the indictment’s existence

except as necessary to issue or execute a warrant

or summons.

(5) Closed Hearing. Subject to any right to an open

hearing in a contempt proceeding, the court must

close any hearing to the extent necessary to

48a

prevent disclosure of a matter occurring before a

grand jury.

(6) Sealed Records.

Records, orders, and

subpoenas relating to grand-jury proceedings

must be kept under seal to the extent and as long

as necessary to prevent the unauthorized

disclosure of a matter occurring before a grand

jury.

(7) Contempt. A knowing violation of Rule 6, or of

any guidelines jointly issued by the Attorney

General and the Director of National Intelligence

under Rule 6, may be punished as a contempt of

court.

***

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.