Amicus Curiae Brief — Stuart A. McKeever, Petitioner v. William P. Barr, Attorney General

No. 19-307

IN THE

Supreme Court of the United States

STUART A. MCKEEVER,

Petitioner,

v.

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

BRIEF AMICUS CURIAE OF

CONSTITUTIONAL ACCOUNTABILITY CENTER

IN SUPPORT OF PETITIONER

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

ASHWIN P. PHATAK

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street N.W., Ste. 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

October 7, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

1

ARGUMENT .........................................................

4

I.

THERE IS A LONG HISTORY OF

COURTS EXERCISING THEIR INHERENT AUTHORITY TO DISCLOSE

GRAND JURY MATERIALS IN APPROPRIATE CIRCUMSTANCES. ...................

4

THE FEDERAL RULES OF CRIMINAL

PROCEDURE DID NOT ELIMINATE

COURTS’ INHERENT AUTHORITY TO

DISCLOSE GRAND JURY MATERIALS

8

III. A COURT’S INHERENT AUTHORITY

TO DISCLOSE GRAND JURY MATERIALS INCLUDES THE AUTHORITY TO

RELEASE HISTORICALLY SIGNIFICANT MATERIALS. ..................................

18

CONCLUSION ....................................................

22

II.

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Atwell v. United States,

162 F. 97 (4th Cir. 1908) ........................

7, 13

Blair v. United States,

250 U.S. 273 (1919) ................................

5

Carlisle v. United States,

517 U.S. 416 (1996) ................................ 11, 17

Carlson v. United States,

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

2, 12

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ..................................

2, 9

Chevron U.S.A. Inc. v. Echazabal,

536 U.S. 73 (2002) ..................................

10

Cobbledick v. United States,

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

16

Costello v. United States,

350 U.S. 359 (1956) ................................

5

Dietz v. Bouldin,

136 S. Ct. 1885 (2016) ............................ 10, 17

Douglas Oil Co. of Cal. v. Petrol Stops Nw.,

441 U.S. 211 (1979) ........................ 5, 16, 19, 20

In re Am. Historical Ass’n,

49 F. Supp. 2d 274 (S.D.N.Y. 1999) ....... 13, 20

In re Craig,

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

2, 18

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

In re Grand Jury Investigation of William

H. Pflaumer & Sons, Inc.,

53 F.R.D. 464 (E.D. Pa. 1971)................

14

In re Grand Jury Proceedings,

4 F. Supp. 283 (E.D. Pa. 1933) ..............

6

In re Grand Jury Proceedings,

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

11

In re Hastings,

735 F.2d 1261 (11th Cir. 1984) ............. 2, 13, 15

In re Kutler,

800 F. Supp. 2d 42 (D.D.C. 2011) .......... 13, 20

In re Report & Recommendation of June 5,

1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives,

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

19

Levine v. United States,

362 U.S. 610 (1960) ................................

16

Link v. Wabash R.R. Co.,

370 U.S. 626 (1962) ........................ 3, 10, 11, 17

Metzler v. United States,

64 F.2d 203 (9th Cir. 1933) ....................

8

Miss. Publ’g Corp. v. Murphree,

326 U.S. 438 (1946) ................................

12

Pitch v. United States,

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

2

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395 (1959) ................................

16

Richmond Newspapers, Inc. v. Virginia,

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

20

Schiavone v. Fortune,

477 U.S. 21 (1986) ..................................

12

Schmidt v. United States,

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

13

United States v. Am. Med. Ass’n,

26 F. Supp. 429 (D.D.C. 1939) ...............

13

United States v. Anzelmo,

319 F. Supp. 1106 (E.D. La. 1970).........

14

United States v. Baggot,

463 U.S. 476 (1983) ................................

18

United States v. Calandra,

414 U.S. 338 (1974) ................................

5

United States v. Farrington,

5 F. 343 (N.D.N.Y. 1881)........................

6

United States v. Garcia,

420 F.2d 309 (2d Cir. 1970) ...................

15

United States v. John Doe, Inc. I,

481 U.S. 102 (1987) ................................

16

United States v. Sells Eng’g, Inc.,

463 U.S. 418 (1983) ................................

5

United States v. Smith,

27 F. Cas. 1186 (C.C.D.N.Y. 1806) ........

6, 7

v

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Socony-Vacuum Oil Co.,

Inc.,

310 U.S. 150 (1940) ........................... 2, 8, 12, 16

United States v. Williams,

504 U.S. 36 (1992) ..................................

10

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ................................

2, 10

Constitutional Provisions and Legislative Materials

Act of July 30, 1977, Pub. L. No. 95-78, 91

Stat. 319 ...............................................

14

Fed. R. Crim. P. 6(e)(2)(A) ...................... 3, 9, 10

Fed. R. Crim. P. 6(e)(2)(B) ...................... 3, 9, 10

Fed. R. Crim. P. 6(e)(3) ...........................

9

Fed. R. Crim. P. 6(e)(3)(A)(ii) ..................

14

Fed. R. Crim. P. 6(e)(3)(B) ......................

11

Fed. R. Crim. P. 6(e)(3)(E) ...................... 3, 9, 11

Fed. R. Crim. P. 6(e) 1944 advisory committee’s note 1 ...................................... 3, 12, 13

Fed. R. Crim. P. 6(e) advisory committee’s

1977 amendment ..................................

14

Fed. R. Crim. P. 6(e) advisory committee’s

1983 amendment ..................................

14, 15

U.S. Const. amend. V ..............................

5

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

Richard M. Calkins, Grand Jury Secrecy,

63 Mich. L. Rev. 455 (1965) ...................

5

Michael A. Foster, Cong. Research Serv.,

R45456, Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight (2019) ...................

6

Mark Kadish, Behind the Locked Door of

an American Grand Jury: Its History, Its

Secrecy, and Its Process, 24 Fla. St. U. L.

Rev. 1 (1996) ........................................... 5, 6, 7

Letter from Eric H. Holder, Jr., Attorney

General, Dep’t of Justice, to The Honorable Reena Raggi, Chair, Advisory Committee on the Criminal Rules (Oct. 18,

2011) ....................................................... 15, 20

Minutes, Committee on Rules of Practice

and Procedure (June 11-12, 2012) .........

John Somers, The Security of Inglish-Mens

Lives, or the Trust, Power, and Duty of

the Grand Jurys of England (London,

Benjamin Alsop 1682) ............................

4, 16

5

1

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and with

legal scholars to improve understanding of the Constitution and preserve the rights, freedoms, and structural safeguards that our nation’s charter guarantees.

CAC has a strong interest in the grand jury as an institution and the circumstances under which grand

jury materials may be disclosed. CAC accordingly has

an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Grand jury records are ordinarily kept secret. But

this rule of secrecy is not—indeed, has never been—

absolute. Long before the Federal Rules of Criminal

Procedure were enacted, courts routinely disclosed

grand jury materials when the interests of justice

made such disclosure appropriate. And in the decades

since, courts across the country have exercised their

inherent authority to release grand jury materials, including materials of historical importance.

The court below, however, in a divided decision, ignored this history and long-standing precedent on the

theory that the Federal Rules abrogated the inherent

1 Counsel for all parties received notice at least 10 days prior

to the due date of amicus’s intention to file this brief; all parties

have consented to the filing of this brief. Under Rule 37.6 of the

Rules of this Court, amicus states that no counsel for a party authored this brief in whole or in part, and no counsel or party made

a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus or its counsel

made a monetary contribution to its preparation or submission.

2

authority that district courts have long possessed to

disclose historically important grand jury materials.

Under the lower court’s theory, a district court may

never release grand jury materials pursuant to its inherent authority, even in cases involving important

moments in American history, and even decades after

those cases were closed. That is wrong, and it directly

conflicts with decisions from the Second, Seventh, and

Eleventh Circuits. See Carlson v. United States, 837

F.3d 753 (7th Cir. 2016); In re Craig, 131 F.3d 99 (2d

Cir. 1997); In re Hastings, 735 F.2d 1261, 1268 (11th

Cir. 1984).2 This Court should step in to correct the

error of the court below and resolve this split of authority.

Nearly a century ago, this Court made clear that

although “[g]rand jury testimony is ordinarily confidential . . . disclosure is wholly proper” “after the grand

jury’s functions are ended . . . where the ends of justice

require it.” United States v. Socony-Vacuum Oil Co.,

Inc., 310 U.S. 150, 233-34 (1940). The Federal Rules

of Criminal Procedure did nothing to change that rule.

Indeed, although “the exercise of the inherent power of

lower federal courts can be limited by statute and

rule,” this Court has made clear that courts should not

“‘lightly assume that Congress . . . intended to depart

from established principles’ such as the scope of a

court’s inherent power.” Chambers v. NASCO, Inc.,

501 U.S. 32, 47 (1991) (quoting Weinberger v. RomeroBarcelo, 456 U.S. 305, 313 (1982)). Instead, there

must be a “clear[] expression of purpose” showing that

Congress

“intended

to

abrogate

[a]

well-

2 While the Eleventh Circuit is currently revisiting this issue

in Pitch v. United States, 925 F.3d 1224 (11th Cir. 2019), a circuit

split will remain no matter how that case is decided.

3

acknowledged” inherent power. Link v. Wabash R.R.

Co., 370 U.S. 626, 631-32 (1962).

The relevant Federal Rule of Criminal Procedure—Rule 6(e)—does not suggest, let alone clearly express, that it was adopted to abrogate courts’ inherent

authority to disclose grand jury materials. To the contrary, the Rule explicitly states that “[n]o obligation of

secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B),” Fed. R. Crim. P.

6(e)(2)(A), and district court judges are excluded from

the list of persons in Rule 6(e)(2)(B) who “must not disclose a matter occurring before the grand jury,” Fed.

R. Crim. P. 6(e)(2)(B). Moreover, although Rule

6(e)(3)(E) identifies certain circumstances in which

district courts “may” disclose grand jury information,

it nowhere states that those are the only circumstances in which district courts may disclose grand

jury information. Fed. R. Crim. P. 6(e)(3)(E). Nor does

the provision state—or even suggest—that it was intended to abrogate courts’ inherent power.

The Advisory Committee’s statements regarding

Rule 6(e) over the last 75 years—which the court below

failed to even mention, let alone analyze—only underscore this interpretation. In 1946 when the Rules were

enacted, the Advisory Committee Notes explicitly

stated that Rule 6(e) was intended to “continue[] the

traditional practice of secrecy on the part of members

of the grand jury, except when the court permits a disclosure.” Fed. R. Crim. P. 6(e) 1944 advisory committee’s note 1 (emphasis added). And in 2011, the Advisory Committee considered the exact question raised

in this petition—whether courts have inherent authority to release historically significant materials that

would not otherwise be covered by a Rule 6(e) exception—and concluded that “in the rare cases where disclosure of historic materials had been sought, the

4

district judges acted reasonably in referring to their

inherent authority.” Minutes, Committee on Rules of

Practice and Procedure, at 44 (June 11-12, 2012).

Finally, a district court’s disclosure of materials of

historical significance is hardly an abuse of the discretion allowed by the Federal Rules. The typical justifications for the secrecy of grand jury records—such as

incentivizing witnesses to testify and preventing defendants from fleeing—are necessarily less salient decades after cases are closed. And those justifications

may be outweighed in especially important cases,

where records of critical moments in our nation’s history are shrouded by the veil of grand jury secrecy. See

Pet. 30 (“Whether district courts have inherent authority to release grand jury records . . . implicates

fundamental constitutional values, the transparency

of judicial proceedings, and the public’s ability to understand important events in our Nation’s history.”).

For all these reasons, this Court should grant the petition.

ARGUMENT

I.

THERE IS A LONG HISTORY OF COURTS

EXERCISING THEIR INHERENT AUTHORITY TO DISCLOSE GRAND JURY MATERIALS IN APPROPRIATE CIRCUMSTANCES.

The grand jury is a centuries-old institution, and

while there is a long tradition of maintaining the secrecy of grand jury deliberations, that practice has

never been absolute. To the contrary, there is a long

history of grand jury materials being disclosed where

courts concluded that the interests of justice required

it.

“[A]n English institution,” the grand jury was

“brought to this country by the early colonists and incorporated in the Constitution by the Founders.”

5

Costello v. United States, 350 U.S. 359, 362 (1956); see

United States v. Calandra, 414 U.S. 338, 342 (1974)

(“The institution of the grand jury is deeply rooted in

Anglo-American history.”); United States v. Sells

Eng’g, Inc., 463 U.S. 418, 423 (1983) (“The grand jury

has always occupied a high place as an instrument of

justice in our system of criminal law—so much so that

it is enshrined in the Constitution.”). Specifically, the

Fifth Amendment provides that “[n]o person shall be

held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a

Grand Jury.” U.S. Const. amend. V. In other words,

under the Fifth Amendment, the government may not

indict an individual for a federal felony except with the

consent of a grand jury. Blair v. United States, 250

U.S. 273, 280 (1919) (“By the Fifth Amendment a presentment or indictment by grand jury was made essential to hold one to answer for a capital or otherwise infamous crime . . . .”).

Even before the grand jury was enshrined in the

Constitution, “grand jury proceedings [were] closed to

the public, and records of such proceedings [were] kept

from the public eye.” Douglas Oil Co. of Cal. v. Petrol

Stops Nw., 441 U.S. 211, 218 n.9 (1979) (citing Richard

M. Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455,

457 (1965)). Legal scholars in England, like John Somers, explained that “grand jurors were sworn not to disclose the subjects of the inquiry, the witnesses, or any

of the evidence,” and were also prohibited from revealing “their own personal knowledge, the knowledge of

their fellow jurors, their investigative plans, or their

deliberations.” Mark Kadish, Behind the Locked Door

of an American Grand Jury: Its History, Its Secrecy,

and Its Process, 24 Fla. St. U. L. Rev. 1, 14-15 (1996)

(citing John Somers, The Security of Inglish-Mens

6

Lives, or the Trust, Power, and Duty of the Grand Jurys of England 43 (London, Benjamin Alsop 1682)).

The Grand Jury Clause in the U.S. Constitution

incorporated this tradition, making “grand jury secrecy an implicit part of American criminal jurisprudence.” Id. at 16. Importantly, however, the general

rule of grand jury secrecy was “not unyielding.” Michael A. Foster, Cong. Research Serv., R45456, Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight 5 (2019). Instead,

the rule of secrecy was “relaxed [to] permit[] disclosure

whenever the interest of justice requires,” and the decision whether to disclose grand jury materials was

left “largely within the discretion of the court whose

grand jury is concerned.” In re Grand Jury Proceedings, 4 F. Supp. 283, 284 (E.D. Pa. 1933); see United

States v. Farrington, 5 F. 343, 346 (N.D.N.Y. 1881)

(“[i]t is only practicable” for courts to exercise “a salutary supervision over the proceedings of a grand jury”

by “removing the veil of secrecy whenever evidence of

what has transpired before them becomes necessary to

protect public or private rights”).

Most exceptions to grand jury secrecy developed in

response to criminal defendants’ arguments that the

grand jury had heard improper evidence or that some

other type of misconduct had infected the grand jury

proceedings. Foster, supra, at 5. For instance, in

United States v. Smith, decided only a few years after

the Bill of Rights was ratified, a New York district

court held that a defendant could challenge an indictment on the theory that illegal evidence was introduced to a grand jury. 27 F. Cas. 1186 (C.C.D.N.Y.

1806). The prosecution argued that a grand jury was

meant to be “independent, and irresponsible; judging

for themselves as to the grounds on which they will

prefer an accusation, and that no one has a right to

7

investigate or to know what evidence they have had

before them.” Id. at 1188. Defense counsel responded

that “no unlawful act done in the grand jury, is such a

secret as jurors are bound by their oaths to keep.” Id.

at 1189. The court agreed with the defense, holding

that although the grand jury itself is bound to “keep[]

its deliberations secret,” the court is entitled to determine whether the grand jury has acted “according to

the rules of law.” Id. at 1188. The court therefore “implicitly accept[ed] the defense argument” that secrecy

was in part intended to “protect[] the individual accused and, consequently, could be lifted where secrecy

defeated that purpose.” Kadish, supra, at 17.

Later cases came to a similar conclusion. In Atwell

v. United States, the Fourth Circuit held that the policy of grand jury secrecy alone did not shield a grand

juror from being questioned about the evidence he considered while serving (though the court prevented the

juror from testifying for other reasons). 162 F. 97, 98,

101, 103 (4th Cir. 1908). The court acknowledged that

secrecy was important “during the sittings and deliberations of the grand jury” because otherwise the

grand jury’s role “to make a preliminary and ex parte

investigation . . . could easily be impeded by persons

fearing indictment.” Id. at 100. Moreover, although

the court suggested there should be “indefinite secrecy

as to the discussions and vote of the individual members of the jury,” it held that the “evidence adduced before the grand jury” could sometimes be made public

“after such jury has made its presentment and indictment, publication thereof has been made, the grand

jury finally discharged, and the defendant is in custody.” Id. At that point, the court held, secrecy must

be maintained “[t]o the full extent necessary to fulfill

the ends of justice, and no further.” Id. (emphasis

added).

8

In Metzler v. United States, the Ninth Circuit similarly held that “[a]fter the [grand jury’s] indictment

has been found and made public and the defendants

apprehended, the policy of the law does not require the

same secrecy as before.” 64 F.2d 203, 206 (9th Cir.

1933). To the contrary, “[w]here the ends of justice can

be furthered thereby and when the reasons for secrecy

no longer exist, the policy of the law requires that the

veil of secrecy be raised.” Id. Thus, the court permitted an assistant U.S. attorney to read into evidence his

shorthand notes of grand jury proceedings in which

certain defendants had confessed. Id.

Building on this precedent, this Court recognized

nearly a century ago that grand jury materials need

not always remain secret. Although “[g]rand jury testimony is ordinarily confidential,” the Court reasoned,

“after the grand jury’s functions are ended, disclosure

is wholly proper where the ends of justice require it.”

Socony-Vacuum Oil Co., 310 U.S. at 233, 234 (citing

Metzler, 64 F.2d at 206).

***

In short, there is a long history of courts exercising

their inherent authority to disclose grand jury materials in appropriate circumstances, notwithstanding the

general tradition of grand jury secrecy. The Federal

Rules of Criminal Procedure did not eliminate that inherent authority, as the next Section shows.

II. THE FEDERAL RULES OF CRIMINAL PROCEDURE DID NOT ELIMINATE COURTS’

INHERENT AUTHORITY TO DISCLOSE

GRAND JURY MATERIALS.

In 1946, the Federal Rules of Criminal Procedure

were enacted, including several provisions governing

grand jury procedures. Rule 6(e) codified grand jury

9

secrecy principles that had, up until that time, been a

part of the common law enforced by courts. Rule

6(e)(2)(A) states that “[n]o obligation of secrecy may be

imposed on any person except in accordance with Rule

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

in turn, lists seven categories of persons who, “[u]nless

these rules provide otherwise, . . . must not disclose a

matter occurring before the grand jury”: grand jurors,

interpreters, court reporters, operators of a recording

device, people who transcribe recorded testimony, government attorneys, and people to whom a disclosure is

made under Rule 6(e)(3)(A)(ii) or (iii). Fed. R. Crim. P.

6(e)(2)(B). Notably, district court judges do not appear

on this list.

Rule 6(e)(3) provides “[e]xceptions” to the secrecy

rules, Fed. R. Crim. P. 6(e)(3), and subsection (E)

states that “[t]he court may authorize disclosure—at a

time, in a manner, and subject to any other conditions

that it directs—of a grand-jury matter” in five specified circumstances. Fed. R. Crim. P. 6(e)(3)(E). Nothing about Rule 6(e), however, suggests that those five

specified circumstances are the only circumstances in

which district courts may authorize a disclosure. And

nothing about Rule 6(e) suggests—let alone clearly

states—that it was intended to abrogate courts’ longstanding inherent authority to disclose grand jury materials in certain circumstances. Rather, Rule 6(e)’s

text, 75 years of Advisory Committee history, and this

Court’s precedents all make clear that courts retain inherent authority to release grand jury materials.

1. Although “[i]t is true that the exercise of the

inherent power of lower federal courts can be limited

by statute and rule, . . . ‘we do not lightly assume that

Congress has intended to depart from established

principles’ such as the scope of a court’s inherent

power.”

Chambers, 501 U.S. at 47 (quoting

10

Weinberger, 456 U.S. at 313); see Dietz v. Bouldin, 136

S. Ct. 1885, 1891 (2016) (explaining that the Federal

Rules of Civil Procedure “set out many of the specific

powers of a federal district court,” “[b]ut they are not

all encompassing”); United States v. Williams, 504

U.S. 36, 50-51 (1992) (permitting federal courts to exercise inherent power where doing so would not “alter

the grand jury’s historical role,” but rather would “preserve []or enhance the traditional functioning of the institution”). Thus, this Court looks for a “clear[] expression of purpose,” indicating that Congress “intended to

abrogate [a] well-acknowledged” inherent power.

Link, 370 U.S. at 631-32.

The language of Rule 6(e) does not eliminate

courts’ inherent authority to release grand jury materials for reasons other than those specified in Rule

6(e)(3)(E) because it does not offer a “clear[] expression

of purpose” indicating congressional intent to “abrogate” this long-standing authority, id. Indeed, district

court judges are conspicuously excluded from the list

of persons in Rule 6(e)(2)(B) who “must not disclose a

matter occurring before the grand jury.” Fed. R. Crim.

P. 6(e)(2)(B). This exclusion is strong evidence that the

Rule’s drafters did not intend for it to impose the same

secrecy requirements on district court judges that it

did on other individuals. And courts’ exclusion from

that list is especially noteworthy in light of subsection

(A), which explicitly commands that “[n]o obligation of

secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).” Fed. R. Crim. P.

6(e)(2)(A); see Chevron U.S.A. Inc. v. Echazabal, 536

U.S. 73, 81 (2002) (noting that the expressio unius

canon applies when “circumstances support[] a

11

sensible inference that the term left out must have

been meant to be excluded”).3

Moreover, Rule 6(e)(3)(E) states simply that courts

“may authorize disclosure.” Fed. R. Crim. P. 6(e)(3)(E)

(emphasis added). This “permissive language of the

Rule—which merely authorizes” a court to release

grand jury materials in certain circumstances—does

not suggest “that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative,” to release materials for other reasons, Link, 370

U.S. at 630. Significantly, nothing in the Rule’s text

indicates that the specified circumstances are the exclusive circumstances in which disclosure may be

made. Indeed, if the Rule’s drafters had intended the

Rule 6(e)(3)(E) circumstances to be exclusive, the Rule

could easily have stated that courts “may only” release

materials in the specified circumstances. Cf. Fed. R.

Crim. P. 6(e)(3)(B) (person “may use that information

only to assist an attorney” (emphasis added)). But that

is not what it says.

The court below suggested that this interpretation

“render[s] the detailed list of exceptions merely precatory and impermissibly enable[s] the court to ‘circumvent’ or ‘disregard’ a Federal Rule of Criminal Procedure.” Pet. App. 6a. (quoting Carlisle v. United States,

517 U.S. 416, 426 (1996)). However, as the Seventh

Circuit explained, “it would be entirely reasonable for

the rulemakers to furnish a list that contains

Notably, grand jury witnesses are not listed in Rule

6(e)(2)(B), and for that reason courts have held that they are generally not covered by secrecy rules either, unless a court determines otherwise. See, e.g., In re Grand Jury Proceedings, 417

F.3d 18, 26 (1st Cir. 2005) (noting that “[w]itnesses are not listed

in Rule 6(e)(2)(B),” but permitting district courts to “accommodate rare exceptions” to that rule “premised on inherent judicial

power”).

3

12

frequently invoked reasons to disclose grand-jury materials, so that the court knows that no special hesitation is necessary in those circumstances.” Carlson,

837 F.3d at 764-65. It is much more difficult to understand why the drafters of the Rule would have excluded district court judges from the list of persons

who are prevented from disclosing grand jury materials if they intended the secrecy requirement to apply

to judges no less than to the persons explicitly enumerated in the Rule.

2. Even if the Rule’s text were not clear enough,

the Advisory Committee, which plays a pivotal role in

crafting the Rules, has made its view crystal clear for

75 years: Rule 6(e) does not abrogate a district court’s

inherent authority to disclose grand jury materials.

Cf. Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (“Although the Advisory Committee’s comments do not

foreclose judicial consideration of the Rule’s validity

and meaning, the construction given by the Committee

is ‘of weight.’” (quoting Miss. Publ’g Corp. v. Murphree,

326 U.S. 438, 444 (1946))). The court below failed to

even mention, let alone analyze, this history from the

Advisory Committee.

First and foremost, at the time the Rules were enacted, the Advisory Committee Notes explicitly stated

that Rule 6(e) was intended to “continue[] the traditional practice of secrecy on the part of members of the

grand jury, except when the court permits a disclosure.”

Fed. R. Crim. P. 6(e) 1944 advisory committee’s note 1

(emphasis added). As described above, the traditional

practice of secrecy gave courts inherent authority to

release grand jury materials “where the ends of justice

require it.” Socony-Vacuum Oil Co., 310 U.S. at 234.

Indeed, the 1944 Advisory Committee Notes cite

three cases, all of which stand for the proposition that

district courts have discretion to release grand jury

13

materials publicly where appropriate. Fed. R. Crim.

P. 6(e) 1944 advisory committee’s note 1; see Schmidt

v. United States, 115 F.2d 394, 397 (6th Cir. 1940)

(“Logically, the responsibility for relaxing the rule of

secrecy and of supervising any subsequent inquiry

should reside in the court . . . . It is a matter which appeals to the discretion of the court when brought to its

attention.” (citations omitted)); United States v. Am.

Med. Ass’n, 26 F. Supp. 429, 430 (D.D.C. 1939) (“Neither indictment, arrest of the accused, nor expiration

of the jury term will operate to release a juror from the

oath of secrecy, as the defendants here contend. That

can only be done by a court acting in a given case when

in its judgment the ends of justice so require.” (citations omitted)); Atwell, 162 F. at 99-101 (described supra at 7).

Furthermore, “exceptions to the secrecy rule generally have developed through conformance of Rule 6

to the ‘developments wrought in decisions of the federal courts,’ not vice versa.” In re Am. Historical Ass’n,

49 F. Supp. 2d 274, 286 (S.D.N.Y. 1999) (quoting In re

Hastings, 735 F.2d at 1268 (emphasis omitted)); see In

re Kutler, 800 F. Supp. 2d 42, 45-46 (D.D.C. 2011) (“as

new exceptions outside of those enumerated in Rule

6(e) have gained traction among the courts, the scope

of the rule has followed suit”). In other words, in response to court decisions permitting disclosure in contexts not encompassed by the existing exceptions, the

Advisory Committee did not amend the Rule to make

clear that such disclosures were inappropriate; rather,

it amended the Rule to add those contexts to the existing list of exceptions.

For example, in 1977, Congress amended Rule

6(e)’s exception permitting “attorney[s] for the government” to view grand jury materials to include “such

government personnel as are deemed necessary by an

14

attorney for the government to assist an attorney for

the government in the performance of such attorney’s

duty to enforce Federal criminal law.” Act of July 30,

1977, Pub. L. No. 95-78, § 2, 91 Stat. 319, 319.4 This

change was important because “there [are] often government personnel assisting the Justice Department

in grand jury proceedings.” Fed. R. Crim. P. 6(e) advisory committee’s 1977 amendment.

As the Advisory Committee Notes explain, however, that change came after several courts had already held that non-attorney government personnel

could access grand jury materials. Id. For instance,

the Notes cite In re Grand Jury Investigation of William H. Pflaumer & Sons, Inc., which permitted IRS

agents to view grand jury documents when assisting

government attorneys. 53 F.R.D. 464, 476-77 (E.D. Pa.

1971); see United States v. Anzelmo, 319 F. Supp. 1106,

1116 (E.D. La. 1970) (similar for SEC attorneys who

did not fit within the Rule’s definition of “attorneys for

the government”).

The Notes explained that

“[a]lthough case law is limited, the trend seems to be

in the direction of allowing disclosure to government

personnel who assist attorneys for the government in

situations where their expertise is required.” Fed. R.

Crim. P. 6(e) advisory committee’s 1977 amendment.

Likewise, in 1983, Rule 6(e)(3)(C) was amended to

permit “the attorney for the government to make disclosure of matters occurring before one grand jury to

another federal grand jury.” Fed. R. Crim. P. 6(e)

Today, that provision similarly reads: “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.”

Fed. R. Crim. P.

6(e)(3)(A)(ii).

4

15

advisory committee’s 1983 amendment. Importantly,

the Notes explained that “[e]ven absent a specific provision to that effect, the courts have permitted such disclosure in some circumstances.” Id. (emphasis added);

see id. (citing United States v. Garcia, 420 F.2d 309 (2d

Cir. 1970), which permitted the use of grand jury

minutes before another grand jury). In short, “the exceptions permitting disclosure were not intended to ossify the law, but rather are subject to development by

the courts in conformance with the rule’s general rule

of secrecy.” In re Hastings, 735 F.2d at 1269.

Finally, the Advisory Committee recently considered the exact question at issue here—whether courts

have inherent authority to release historically important materials—and it agreed that they do have

such authority. In 2011, the Attorney General argued

to the Advisory Committee that Rule 6(e) should be

amended “to allow district courts to permit the disclosure, in appropriate circumstances, of archival grandjury materials of great historical significance.” Letter

from Eric H. Holder, Jr., Attorney General, Dep’t of

Justice, to The Honorable Reena Raggi, Chair, Advisory Committee on the Criminal Rules, at 1 (Oct. 18,

2011) (“Holder Letter”). According to the Attorney

General, this amendment was necessary because “federal courts have no inherent authority to develop rules

that circumvent or conflict with the Federal Rules,”

and the courts that had applied a “‘historical significance’ exception to Rule 6(e) threaten[ed] to undermine” the Rule. Id.

The Advisory Committee explicitly rejected this argument because, in its view, courts have inherent authority to release historically important grand jury

material. All members of a subcommittee that examined the issue, except for Department of Justice representatives, agreed that the proposed amendment did

16

not need to be pursued. The full advisory committee

“concurred in the recommendation and concluded that

in the rare cases where disclosure of historic materials

had been sought, the district judges acted reasonably

in referring to their inherent authority.” Minutes,

Committee on Rules of Practice and Procedure, at 44

(June 11-12, 2012).

3. This Court’s precedents support the conclusion

that the Federal Rules did not abrogate courts’ inherent authority to disclose grand jury materials. Generally speaking, this interpretation accords with this

Court’s repeated insistence that district courts have

substantial flexibility when they oversee grand juries,

including in determining whether to disclose grand

jury materials. After all, “[t]he grand jury is an arm of

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

(1960); see Cobbledick v. United States, 309 U.S. 323,

327 (1940) (“The Constitution itself makes the grand

jury a part of the judicial process.”). To that end, “a

court called upon to determine whether grand jury

transcripts should be released necessarily is infused

with substantial discretion.” Douglas Oil Co., 441 U.S.

at 223; see United States v. John Doe, Inc. I, 481 U.S.

102, 116 (1987) (“stress[ing] that wide discretion must

be afforded to district court judges in evaluating

whether disclosure is appropriate”); Pittsburgh Plate

Glass Co. v. United States, 360 U.S. 395, 400 (1959)

(“disclosure is wholly proper where the ends of justice

require it” (quoting Socony-Vacuum Oil Co., 310 U.S.

at 234)). And speaking specifically about Rule 6(e),

this Court has emphasized that the Rule is “but declaratory” of the “principle”—adopted by “the federal trial

courts as well as the Courts of Appeals”—that “disclosure [i]s committed to the discretion of the trial judge.”

Id. at 399.

17

Moreover, this case is analogous to cases in which

this Court has held that the Federal Rules of Civil Procedure did not abrogate courts’ inherent authority.

For example, in Link v. Wabash Railroad Co., the

Court held that Rule 41(b)—which permits a party to

move to dismiss for failure to prosecute—did not implicitly abrogate a court’s inherent authority to dismiss a case for failure to prosecute sua sponte. 370

U.S. at 630. And in Dietz v. Bouldin, the Court held

that Rule 51(b)(3)—which permits a court to “instruct

the jury at any time before the jury is discharged”—

did not implicitly abrogate a court’s inherent authority

to rescind a discharge order and reassemble a jury to

provide further instructions. 136 S. Ct. at 1893. In

each case, the Rules did not explicitly authorize the

district court action, but this Court approved the

courts’ exercises of their authority because they had a

historical basis and were not “contrary to any express

grant of or limitation on the district court’s power contained in a rule or statute.” Id. So too here: as explained above, a district court’s exercise of inherent

authority to release grand jury materials does not contravene the Rules and has a lengthy historical pedigree.

The court below cited Carlisle v. United States, 517

U.S. 416, but that case is entirely inapposite. Pet. App.

6a. There, this Court held that district courts could

not exercise inherent supervisory power to “effectively

annul[]” Rule 29(c) by granting a post-verdict motion

for judgment of acquittal filed outside the time limit

expressly prescribed by the Rule. 517 U.S. at 426.

Here, as explained above, the list of persons who

“must” maintain secrecy does not include district court

judges; the Rule simply lists five circumstances in

which courts “may” disclose grand jury materials. It is

hardly “annulling” the Rule for courts to exercise

18

inherent authority to disclose materials in certain

other exceptional circumstances.

The court below also cited United States v. Baggot,

463 U.S. 476 (1983), see Pet. App. 6a, which noted that

the Rule 6(e) exceptions act as “an affirmative limitation on the availability of court-ordered disclosure of

grand jury materials,” Baggot, 463 U.S. at 479. But

that case considered only the question whether Rule

6(e)(3)(C)(i) itself permitted the disclosure of grand

jury materials to the IRS as part of an investigation to

determine civil tax liability. Id. at 477. No party in

that case appears to have argued that disclosure was

warranted under the court’s inherent authority, and

this Court never addressed that question in its opinion.

***

For all of these reasons, the Federal Rules did not

eliminate courts’ long-standing inherent authority to

release grand jury materials in exceptional circumstances. As the next Section argues, those exceptional

circumstances should include the release of historically important materials decades after a case is concluded.

III. A COURT’S INHERENT AUTHORITY TO

DISCLOSE GRAND JURY MATERIALS INCLUDES THE AUTHORITY TO RELEASE

HISTORICALLY SIGNIFICANT MATERIALS.

This Court should also grant certiorari to make

clear that courts’ inherent authority to release grand

jury materials includes the power to release historically significant materials where, as here, decades

have passed since the case was concluded. Cf. In re

Craig, 131 F.3d at 105 (“[t]o the extent that the John

Wilkes Booth or Aaron Burr conspiracies, for example,

19

led to grand jury investigations, historical interest

might by now overwhelm any continued need for secrecy”). The court below did not even address this

question because it believed—wrongly—that courts retained no inherent authority whatsoever to release

grand jury materials.

This Court has explained that grand jury secrecy

serves several important purposes: to incentivize prospective witnesses to come forward voluntarily, to ensure witnesses testify “fully and frankly,” to prevent

those about to be indicted from fleeing or attempting

to influence individual grand jurors, and to ensure

that persons “who are accused but exonerated by the

grand jury will not be held up to public ridicule.”

Douglas Oil Co., 441 U.S. at 219. Releasing grand jury

materials of historical interest is consistent with these

principles. In cases that were closed decades ago,

“[t]here is no need to protect against flight on anyone’s

part, to prevent tampering with or restraints on witnesses or jurors, to protect grand jury deliberations,

[or] to safeguard unaccused or innocent persons with

secrecy.” In re Report & Recommendation of June 5,

1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives, 370 F. Supp.

1219, 1229 (D.D.C. 1974); see Douglas Oil Co., 441 U.S.

at 223 (“as the considerations justifying secrecy become less relevant, a party asserting a need for grand

jury transcripts will have a lesser burden in showing

justification”). To be sure, releasing grand jury materials could lead to information that might be embarrassing to individuals who were not indicted by the

grand jury, but that factor is less salient decades after

a case has closed.

There is also a substantial public interest in learning about momentous events in our nation’s history,

and there is often salient information that can be

20

discovered only by releasing decades-old grand jury

materials. See generally Richmond Newspapers, Inc.

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

concurring in the judgment) (“the public has an intense need and a deserved right to know about the administration of justice”). Indeed, in the rare instances

that courts have concluded that the release of historical grand jury materials was appropriate, they have

concerned issues of significance in the history of our

nation, important facts regarding which were

shrouded behind the veil of grand jury secrecy. These

examples include the contents of President Nixon’s

grand jury testimony associated with Watergate, see

In re Kutler, 800 F. Supp. 2d at 43-44, and the materials associated with Alger Hiss and allegations of Russian espionage in the middle of the twentieth century,

see In re Am. Historical Ass’n, 49 F. Supp. 2d at 27778. Yet under the theory of the court below, the important historical materials that were disclosed in

these cases should have remained secret. No principle

of secrecy should be so absolute as to lock away these

important records forever, especially once the reasons

justifying secrecy have largely dissipated.

Indeed, even the government has in the past

agreed as a policy matter that materials of historic significance should be released in exceptional circumstances. In 2011, when the Advisory Committee was

considering a change to the rules, the Justice Department endorsed the “fundamentally correct . . . insight”

that “in long-closed cases of enduring historical significance, the public’s interest in access to the primarysource records of our national history may on occasion

overwhelm any continued need for secrecy.” Holder

Letter at 5 (internal citation and quotation omitted);

see id. at 4 (“historians have an understandable desire

for access, many decades after the investigations have

21

closed, to grand-jury records concerning the Watergate

investigation, the espionage trial of the Rosenbergs,

and similar matters of enduring historical resonance—

provided that interests in personal privacy and governmental functions are taken into account and appropriately weighed”). The government simply believed

that the Rules should be amended to include this exception, a proposal the Advisory Committee rejected

based on its understanding that courts retained inherent authority to release such materials.

Finally, the experience of courts applying their inherent authority demonstrates that there will not be a

flood of disclosure of grand jury materials, as the court

below feared, Pet. App. 14a-15a. After all, that courts

have authority to disclose grand jury materials does

not mean that they always will, and there is every reason to expect that courts will, as this Court has urged,

exercise their disclosure authority sparingly and remain “reluctant to lift unnecessarily the veil of secrecy

from the grand jury” unless “justice may demand.”

Douglas Oil Co., 441 U.S. at 219. This case is a good

example. Although the district court recognized that

it retained inherent authority to release materials of

historical significance, it concluded that the request at

issue was overbroad. See Pet. App. 2a-3a. Unfounded

speculation that district courts will not exercise their

discretion responsibly provides no basis for depriving

courts of the authority to release grand jury material

when exceptional circumstances warrant it.

22

CONCLUSION

For the foregoing reasons, amicus urges the Court

to grant the Petition for a Writ of Certiorari.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

ASHWIN P. PHATAK

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Ste 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

October 7, 2019

* Counsel of Record