Case 15-2972 Document 39 Filed 09 15 2016 Pages 34 In the United States Court of Appeals For the Seventh Circuit ____________________ No 15-2972 ELLIOT CARLSON et al Petitioners-Appellees v UNITED STATES OF AMERICA Respondent-Appellant ____________________ Appeal from the United States District Court for the Northern District of Illinois Eastern Division No 14 C 9244 -- Ruben Castillo Chief Judge ____________________ ARGUED FEBRUARY 18 2016 -- DECIDED SEPTEMBER 15 2016 ____________________ Before WOOD Chief Judge and KANNE and SYKES Circuit Judges WOOD Chief Judge During World War II the U S Office of War Information warned the populace that loose lips sink ships See The Phrase Finder http www phrases org uk meanings 237250 html last visited Sept 15 2016 But what if the ships sailed some 70 years before the tongues wag That is the problem we face in the present case in which Elliot Carl- Case 15-2972 Document 39 Filed 09 15 2016 2 Pages 34 No 15-2972 son along with a number of scholarly journalistic and historic organizations seeks access to grand-jury materials sealed decades ago The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U S military had cracked Japanese codes The government concedes that there are no interests favoring continued secrecy It nonetheless resists turning over the materials on the sweeping ground that Rule 6 e of the Federal Rules of Criminal Procedure entirely eliminates the district court's common-law supervisory authority over the grand jury It takes the position that no one as far as we can tell has the power to release these documents except for one of the reasons enumerated in Rule 6 e 3 E If that is so then Carlson and his allies must fail because his request is outside the scope of Rule 6 e 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 In fact the Rules and their history imply the opposite which is why every federal court to consider the issue has adopted Carlson's view that a district court's limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate Because the parties agree that this is an appropriate instance if in fact the district court has this power we affirm the order of the district court I The story behind our case is a thrilling one involving espionage World War II and legal wrangling The year is 1942 the setting the Pacific Theater After Pearl Harbor was attacked in December 1941 the shocked U S Navy sprang into action The Japanese military hoped to sink the remainder of Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 3 the U S fleet and was aiming to do so in an attack on Midway Island and the Aleutian Islands nearly 2 000 miles away in June 1942 The Japanese planned to invade the Aleutians with a small detachment so as to lure U S ships out of their safe harbors then attack those ships with a larger force while simultaneously invading and occupying Midway as the U S Navy was distracted See NORMAN STONE WORLD WAR TWO 123-24 2012 Instead the U S Navy forces pulled off a stunning victory defending Midway and sinking all five carriers that the Japanese had devoted to the operation as well as some other ships The victory at Midway was widely seen as a turning point in the Pacific Id at 124 How did the U S Navy know its plan would work Unbeknownst to Japan the United States had broken some critical Japanese codes some two years earlier ANTHONY BEEVOR THE SECOND WORLD WAR 307 2012 The U S Navy was thus able to figure out beforehand that Japan's attack on the Aleutians was a feint and Japan's real goal was to overtake Midway and sink U S aircraft carriers in the process STONE supra at 123 As the commander-in-chief of the U S Pacific Fleet explained in a later report h ad we lacked early information of the Japanese movement the Battle of Midway would have ended far differently BEEVOR supra at 311 This explains why senior U S officials were so dismayed when the Chicago Tribune blew their secret On June 7 1942 the Chicago Tribune's banner headline announced victory in the Battle of Midway Right below the Tribune dropped another bombshell Navy Had Word of Jap Plan to Strike at Sea Stanley Johnston CHICAGO TRIBUNE June 7 1942 at A1 The article explained that the United States knew that Japan Case 15-2972 4 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 was planning a minor attack on one American base as a distraction from a major attack on another and this advance notice enabled the Navy to plan its victorious counterattack The article appeared to be--and as we now know in fact was-- based on a classified Navy communique that alerted naval commanders to the impending attack on Midway Island The article's publication had immediate consequences President Roosevelt and high-ranking military officials called for a criminal investigation The Department of Justice complied empaneling a grand jury and launching an investigation into whether the article's author and other Tribune staff had violated the Espionage Act of 1917 The grand jury heard testimony from an assortment of witnesses including Tribune personnel several identified military officers and three or four unknown officers Ultimately the grand jury did not issue any indictments a decision that the Tribune and other prominent national newspapers hailed as a victory for free speech Fast forward to the present more than 70 years later Elliot Carlson is a journalist and historian with a special expertise in naval history He is the author of Joe Rochefort's War The Odyssey of the Codebreaker Who Outwitted Yamamoto at Midway an award-winning book on the commander who broke one of the Japanese codes Carlson is currently writing a book on the Tribune's Midway article and the ensuing investigation Carlson and his co-plaintiffs to whom we refer in the singular as Carlson for simplicity's sake filed a petition in the Northern District of Illinois asking that court to unseal the transcripts of witness testimony before the Tribune grand jury Carlson chose the Northern District of Illinois because it was the court that originally had supervisory jurisdiction over Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 5 the grand jury in question He argued that this same court has continuing common-law authority over matters pertaining to that grand jury including any application to unseal grandjury materials The convening court for instance would have the authority to rule on disclosure pursuant to Federal Rule of Criminal Procedure 6 e Carlson acknowledged that his request falls outside the scope of the circumstances for releasing grand jury materials enumerated in the Rule Nonetheless relying on In re Craig 131 F 3d 99 2d Cir 1997 Carlson argued that the district court has the inherent power to release grandjury materials in situations not contemplated by Rule 6 e He concedes that just as other inherent powers of the court should not be exercised lightly see Dietz v Bouldin 136 S Ct 1885 1893 2016 Chambers v NASCO Inc 501 U S 32 44 1991 this power too is tightly circumscribed Craig identifies numerous factors that a court should weigh when exercising this limited inherent power Carlson argued that his request satisfied these criteria and the district court agreed with him It decided first that it possessed the inherent authority to unseal grand-jury materials in situations outside the scope of Rule 6 e 3 E It considered each point identified by Craig and concluded that disclosure in this case was warranted It thus ordered that the transcripts be released The government has appealed and the order has been stayed pending appeal The government agrees that if the district court has inherent authority to unseal grand-jury records then the transcripts have sufficient historical value to warrant release under the Craig factors It argues however that Rule 6 e contains the exclusive list of reasons for which a district court may unseal grand-jury materials and because historical value is not among them the court was wrong to grant Carlson's petition Case 15-2972 Document 39 Filed 09 15 2016 6 Pages 34 No 15-2972 II Before turning to the merits of the appeal we must assure ourselves that both the district court and we have jurisdiction over this matter Because neither Carlson nor any of his fellow petitioner-appellees were parties to the underlying grand jury investigation we must confirm that at least one of them has standing to bring this claim See Ezell v City of Chicago 651 F 3d 684 696 n 7 7th Cir 2011 Where at least one plaintiff has standing jurisdiction is secure citing Vill Of Arlington Heights v Metro Hous Dev Corp 429 U S 252 264 1977 And because Carlson does not invoke a Federal Rule of Criminal Procedure as the basis for granting his petition to obtain the records relying instead on the court's inherent power we must confirm that we have subject-matter jurisdiction We solicited supplemental briefs from the parties on these important points A 1 As a member of the public Carlson has standing to assert his claim to the grand-jury transcripts because they are public records to which the public may seek access even if that effort is ultimately unsuccessful perhaps because of sealing national security concerns or other reasons Article III of the Constitution limits the federal courts' power to the adjudication of actual Cases and Controversies U S CONST Art III The doctrine of standing has developed to ensure that federal courts do not exceed this authority Spokeo Inc v Robins 136 S Ct 1540 1547 2016 To have standing a plaintiff must have 1 suffered an injury in fact 2 that is fairly traceable to the challenged conduct of the defendant and Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 7 3 that is likely to be redressed by a favorable judicial decision Id citing Lujan v Defenders of Wildlife 504 U S 555 560-61 1992 We review each element in turn Carlson's injury-in-fact is the denial of access to government documents that he has a right to seek A plaintiff suffers an injury-in-fact when she is unable to obtain information that is statutorily subject to public disclosure Federal Elec Comm'n v Akins 524 U S 11 20-21 1998 Public Citizen v Dep't of Justice 491 U S 440 449 1989 Injury-in-fact can arise from a comparable common-law source See Spokeo 136 S Ct at 1549 Id at 1550-53 Thomas J concurring explaining that plaintiffs asserting common-law injuries can more easily demonstrate injury-in-fact than others Carlson needs only a colorable claim to a right to access these documents because w ere we to require more than a colorable claim we would decide the merits of the case before satisfying ourselves of standing See Booker-El v Superintendent Ind State Prison 668 F 3d 896 900 7th Cir 2012 see also Bond v Utreras 585 F 3d 1061 1073 7th Cir 2009 Thus the question becomes whether Carlson has a colorable claim of a right to obtain access to these documents He does Carlson argues that grand-jury records are court documents he argues further that under the circumstances of this case he has a right to review them Although the grand jury operates according to a tradition of independence United States v Williams 504 U S 36 47 1992 t he Constitution itself makes the grand jury part of the judicial process Cobbledick v United States 309 U S 323 327 1940 see also Branzburg v Hayes 408 U S 665 688 1972 the powers of the grand jury are subject to the supervision of a judge Levine v United States 362 U S 610 617 1960 the grand jury Case 15-2972 8 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 is an arm of the court Brown v United States 359 U S 41 49 1959 a grand jury is clothed with great independence in many areas but it remains an appendage of the court overruled on other grounds by Harris v United States 382 U S 162 1965 Blair v United States 250 U S 273 278 1919 the inquisitorial function of the grand jury is incident to the judicial power of the United States Because the grand jury is part of the judicial process Cobbledick 309 U S at 327 its minutes and transcripts are necessarily records of the court United States v Procter Gamble Co 356 U S 677 684-685 1958 Whittaker J concurring see also Standley v Dep't of Justice 835 F 2d 216 218 9th Cir 1987 grand jury materials are records of the district court In re Grand Jury Investigation of Cuisinarts Inc 665 F 2d 24 31 2d Cir 1981 Cuisinarts same United States v Penrod 609 F 2d 1092 1097 4th Cir 1979 same And because they are records of the court Carlson has a right to petition for access to them the public has a general right to inspect and copy public records and documents including judicial records and documents Nixon v Warner Commc'ns Inc 435 U S 589 597 1978 The denial at the threshold of the right to petition for access inflicts an injury-in-fact on Carlson See Akins 524 U S at 20-21 Public Citizen 491 U S at 449 That his petition is not guaranteed to be granted because a court may find a valid justification for denying him access in no way destroys his standing to seek the documents See Nixon 435 U S at 598-99 United States v Corbitt 879 F 2d 224 228 7th Cir 1989 To hold otherwise would amount to denying standing to everyone who cannot prevail on the merits an outcome that fundamentally misunderstands what standing is See Booker-El 668 F 3d at 900 Bond 585 F 3d at 1073 Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 9 For public documents such as these there is no need for Carlson to show that he has any particular connection to the grand jury proceeding As we explained in Jessup v Luther r epresentatives of the press and general public must be given an opportunity to be heard on the question of access to documents 227 F 3d 993 997 7th Cir 2000 see also Corbitt 879 F 2d at 228-29 entertaining newspaper's request to see sealed pre-sentence report and analogizing pre-sentence report to grand jury materials To hold otherwise would raise First Amendment concerns Cf United States v Edwards 672 F 2d 1289 1294 7th Cir 1982 recognizing that the common law right of public access to court records supports and furthers many of the same interests which underlie those freedoms protected by the constitution Globe Newspaper Co v Sup Ct for Norfolk Cnty 457 U S 596 604 607 1982 holding First Amendment guarantees access to criminal trials and limitations on access are subject to strict scrutiny Butterworth v Smith 494 U S 624 630 1990 reiterating in the context of prohibiting a witness from discussing his testimony grand juries are expected to operate within the limits of the First Amendment That Carlson is a member of the public is sufficient for him to assert his general right to inspect and copy judicial records Nixon 435 U S at 597 The administrative reality that the physical documents are currently housed in a facility operated by the National Archives and Records Administration NARA rather than in a storeroom controlled by the district court does not change this analysis NARA is an office of the executive branch it manages archival documents to ensure their continued preservation by the United States Government 44 U S C 2107 1 The Judiciary uses NARA to store old paper case Case 15-2972 10 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 files See National Archives www archives gov research catalog last visited Sept 15 2016 search for court records Rule 6 e 1 explains that after the conclusion of a grand-jury investigation the government's attorneys will retain control of grand-jury materials u nless the court orders otherwise This indicates that the grand-jury materials are subject to the court's control The Committee Notes on Rule 6 further make this clear by explaining that the amendment was enacted to accord with present practice but that the Committee specifically recognized that the court in a particular case may have reason to order otherwise FED R CRIM P 6 e Committee Notes 1979 Even when grand-jury materials are in the custody of government attorneys they remain the records of the courts and courts must decide whether they should be made public Cuisinarts 655 F 2d at 31 Carlson easily satisfies the other two elements of Article III standing His injury-in-fact is traceable to the respondent's denial of access to the grand-jury materials That injury would be redressed by a court order granting him the relief he seeks--access to the transcript Thus Carlson has standing to seek access to grand jury materials Our decision in Bond v Utreras is not to the contrary--indeed it supports this position 585 F 3d 1061 7th Cir 2009 In Bond we drew a sharp line between civil pre-trial discovery documents that were never filed with the court and documents that were filed with the court Id at 1066 We held that documents filed in court are presumptively open to the public and explained that this right of access is derived from common-law codified by statute and any judicially imposed limitations on this right are subject to the First Amendment Id at 1073-74 emphasis added citing inter alia 28 Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 11 U S C 452 Globe Newspaper Co 457 U S at 603-06 We emphasized that although a court may ultimately decide to shield certain documents from the public the general right of public access is enough to give members of the public standing to seek them Id at 1074 In contrast there is no statutory rule-based common-law or constitutional right of the public to obtain discovery documents that are never filed with the court and that is typically the status of the overwhelming majority of the documents exchanged in civil discovery A non-party thus has no right to intervene to seek them Id at 1074-76 citing SEC v TheStreet com 273 F 3d 222 233 n 11 2d Cir 2001 The grand-jury transcripts that Carlson seeks are not like privately produced civil discovery that never makes it through the courthouse door They are created under the authority of the grand jury and they remain at all times under the power of the court The Supreme Court has said that a t the foundation of our federal government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States Blair 250 U S at 280 A grand jury cannot create any materials without the power of the court being used to empanel the grand jury and issue and enforce its subpoenas Levine 362 U S at 617 Grand-jury transcripts are produced under the supervision of the district court Branzburg 408 U S at 688 and as a result they represent an exercise of the court's power they are filed with the court Bond 585 F 3d at 1073 They constitute a form of judicial papers Because grand-jury transcripts are in their very nature judicial documents just as a transcript of a trial would be there Case 15-2972 Document 39 Filed 09 15 2016 12 Pages 34 No 15-2972 is no need for them to become part of the judicial proceeding through admission into evidence Smith v U S Dist Court for S Dist of Ill 956 F 2d 647 650 7th Cir 1992 judicial records to which there is a presumptive right of access include transcripts of proceedings and items not admitted into evidence Thus the presumptive right of access attaches and is sufficient to give members of the public standing Bond 585 F 3d at 1073-74 Carlson asserts a common-law right and is therefore unlike the journalist in Bond who could point to no constitutional or common-law right to un-filed pre-trial discovery materials Id at 1066 And we reiterate that the fact that a rule of criminal procedure or another compelling reason might lead to the denial of Carlson's request in no way affects his standing 2 Our conclusion that the records Carlson is seeking are court records makes it unnecessary for us to reach his alternative arguments that they are agency records to which he has a statutory right of access under the Freedom of Information Act 5 U S C 552 or NARA's enabling statute and implementing regulations 44 U S C 2108 a or that he has an independent common-law right to petition the court for access to them which gives him an independent basis for standing B The next question is whether the district court was authorized to entertain this case We are satisfied that it was The court had federal-question jurisdiction under 28 U S C 1331 because this is an action arising under the Constitution laws or treaties of the United States Id That Carlson is relying Case 15-2972 Document 39 Filed 09 15 2016 No 15-2972 Pages 34 13 primarily on federal common law does not change this analysis See Nat'l Farmers Union Ins Cos v Crow Tribe of Indians 471 U S 845 850 1985 Because the case raises a substantial question relating to the scope and meaning of Rule 6 e federal-question jurisdiction is also proper under Franchise Tax Bd of State of Cal v Constr Laborers Vacation Trust for S Cal 463 U S 1 28 103 1983 See also Turner Ozanne v Hyman Power 111 F 3d 1312 1316 7th Cir 1997 Resolving that question requires an examination of the relation between the Federal Rules of Criminal Procedure and a long-standing common-law right thus necessarily raising a substantial federal question Appellate jurisdiction is proper because the district court's order requiring disclosure finally resolves the only matter that was at issue See 28 U S C 1291 III A With the jurisdictional brush cleared away we are ready to reach the merits The institution of the grand jury reaches as far back as twelfth century England when the common law itself was developing See e g 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 Alfredo Garcia The Fifth Amendment A Comprehensive and Historical Approach 29 U TOL L REV 209 227-34 1998 In the United States it has been understood as a constitutional fixture in its own right that operates in the courthouse and under judicial auspices Williams 504 U S at 47 The grand jury is not a free-floating institution accountable to no one It is an arm of the court and thus falls under the supervisory authority of the district court See Levine 362 Case 15-2972 14 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 U S at 617 It thus follows as the Supreme Court confirmed both before and after the Criminal Rules were adopted that the disclosure of sealed grand jury materials is committed to the discretion of the trial judge Pittsburgh Plate Glass Co v United States 360 U S 395 399 1959 after the Rules were adopted United States v Socony-Vacuum Oil Co 310 U S 150 234 1940 before The question is how the Federal Rules of Criminal Procedure and in particular Rule 6 e affect this power The inherent supervisory power of the court over the grand jury is well established The Constitution itself makes the grand jury a part of the judicial process Levine 362 U S at 617 For example a grand jury may initiate prosecutions only under general instructions from the court to which it is attached and to which from time to time it reports its findings Id see also 18 U S C 3331 district court's power to summon grand jury FED R CRIM P 6 a same And the grand jury may rely on the court's authority to compel a witness to appear only because it is an arm of the court Levine 362 U S at 617 see also 28 U S C 1826 a district court's power to issue subpoena FED R CRIM P 17 a same In re Grand Jury Proceedings 507 F 2d 963 965 n 2 3d Cir 1975 discussing the same The matters over which the court exercises supervisory authority range from the mundane to the weighty They include routine decisions regarding the daily operation of the grand jury when Rule 6 is ambiguous on a particular detail For example prior to 1979 Rule 6 d stated that recording grand-jury proceedings was optional-- a stenographer or operator of a recording device may be present while the grand jury is in session --but it did not specify who decided what Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 15 to do Every court to consider the issue said that this decision was left to the discretion of the trial court See United States v Price 474 F 2d 1223 1225 9th Cir 1973 recordation of grand jury proceedings should be routine and nonrecordation should be permissible only in exceptional circumstances United States v Aloisio 440 F 2d 705 708 n 2 7th Cir 1971 Schlinsky v United States 379 F 2d 735 740 1st Cir 1967 noting prosecutor's practice of not recording and stating w hether under our supervisory power we should now condemn this practice for the future is not presented Given the grand jury's role as an independent body however the district court's supervisory power is a very limited one Williams 504 U S at 50 It does not permit judicial reshaping of the grand jury institution Rather it may be used only to preserve or enhance the traditional functioning of the grand jury Id For example a district court does not have the power to order a prosecutor to present exculpatory evidence to a grand jury Such an order would be inappropriate because rather than enhancing the traditional functioning of a grand jury it would alter the grand jury's historical role Id at 50-51 Yet this limited inherent supervisory power has historically included the discretion to determine when otherwise secret grand-jury materials may be disclosed Prior to the adoption of the Federal Rules of Criminal Procedure the Supreme Court held that release of sealed grand jury materials rests in the sound discretion of the trial court and disclosure is wholly proper where the ends of justice require it SoconyVacuum Oil Co 310 U S at 233-34 The advent of the Criminal Rules did not eliminate a district court's inherent supervisory power as a general matter Case 15-2972 16 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 Rule 57 b recognizes that the rules are not designed to be comprehensive instead it says when there is no controlling law a judge may regulate practice in any manner consistent with federal law these rules and local rules of the district FED R CRIM P 57 b This Rule has remained substantively the same since the original 1944 version To be sure the court is powerless to contradict the Rules where they have spoken just as the court cannot contradict a statute Dietz 136 S Ct at 1892 Carlisle v United States 517 U S 416 420-21 1996 Bank of Nova Scotia v United States 487 U S 250 255 1988 But it is Rule 57 b not Carlisle or Bank of Nova Scotia that informs us what a court may do when the Rules are silent The Supreme Court has repeatedly stated that permissive rules do not abrogate the power of the courts to exercise their historic inherent power when doing so does not contradict a rule Link v Wabash R R Co 370 U S 626 1962 with respect to FED R CIV P 41 b Just this year it said so again Dietz 136 S Ct at 1891-92 A permissive rule--that is a rule that permits a court to do something and does not include any limiting language--should not give rise to a negative inference that it abrogates the district court's inherent power without a clear expression of that purpose Link 370 U S at 631-32 G Heileman Brewing Co v Joseph Oat Corp 871 F 2d 648 652 7th Cir 1989 mere absence of language in the federal rules specifically authorizing or describing a particular judicial procedure should not and does not give rise to a negative implication of prohibition This general principle applies to Rule 6 which has been construed not to eliminate the limited inherent supervisory authority the district courts have historically wielded over the administration of a grand jury As the Supreme Court put it Case 15-2972 Document 39 Filed 09 15 2016 No 15-2972 Pages 34 17 Rule 6 e is but declaratory of the long-standing principle that disclosure of grand jury materials is committed to the discretion of the trial court Pittsburgh Plate Glass Co 360 U S at 399 Since then the Court has stressed that wide discretion must be afforded to district court judges in evaluating whether disclosure is appropriate United States v John Doe Inc I 481 U S 102 116 1987 Pittsburgh Plate Glass Co 360 U S at 400 This Court has long held that there are occasions when the trial judge may in the exercise of his discretion order the minutes of a grand jury witness produced for use on his cross-examination at trial Certainly disclosure is wholly proper where the ends of justice require it internal citations and quotation marks omitted Douglas Oil Co of California v Petrol Stops Northwest 441 U S 221 223 1979 W e emphasize that a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion see also Procter Gamble Co 356 U S at 689 Thus the existence of Rule 6 does not by itself eliminate the court's power to address situations that the Rule does not describe B The government urges however that there is a textual basis in the rule that supports its position We therefore turn to a closer examination of the Rule's language Rule 6 e is entitled Recording and Disclosing the Proceedings of the grand jury Subpart 1 requires that the proceedings be recorded Subpart 2 is entitled secrecy Rule 6 e 2 A states that no obligations of secrecy may be imposed on any person except in accordance with Rule 6 e 2 B Rule 6 e 2 B provides that u nless these rules provide otherwise the following persons must not disclose a matter occurring before the grand Case 15-2972 18 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 jury The list identifies seven types of people who fall within that prohibition a grand juror an interpreter a court reporter an operator of a recording device a person who transcribes recorded testimony an attorney for the government or a person to whom disclosure is made under Rule 6 e 3 A ii or iii Rule 6 e 3 sets out some exceptions to the norm of nondisclosure Subsection A B and C of Rule 6 e 3 describe when grand jury materials can be disclosed without the court's permission--for instance to other government attorneys or other grand juries--and contain limitations on the purposes for which that disclosed information can be used Subsection D relates to foreign intelligence and similar materials it is not involved here Subsection E that is Rule 6 e 3 E is the section at issue here it describes disclosures that the court may authorize It 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 and at the request of iii a foreign government iv tribal government or v U S military all for the purpose of enforcing their respective criminal laws FED R CRIM P 6 e 3 E Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 19 The government's primary textual argument is that the phrase u nless these rules provide otherwise which appears only in Rule 6 e 2 B somehow carries over to all of Rule 6 and provides conclusive proof that the court's power in subpart 3 E is limited to the purposes listed under that heading This makes no sense either as a reading of Rule 6 e or as a general matter of statutory or rule construction The government provides no explanation for why a limitation buried in subsection B of subpart 2 of Rule 6 e secretly applies to the rule as a whole or even worse as it seems to be saying to an entirely different subpart We do not know of any principle of interpretation supporting this position nor could the government provide us with any examples at oral argument It is far more reasonable to read Rule 6 e 2 B as specifying unless these rules provide otherwise which persons are bound to keep grand-jury materials secret and then to read Rule 6 e 3 E as telling the court to whom it may authorize disclosure without indicating anywhere that the list is exclusive There is nothing odd or counterintuitive in having one rule for disclosures that may not occur without court supervision and a different rule for disclosures specifically ordered by the court Nor can we find language elsewhere in the rule supporting the government's exclusivity theory The government suggests that it is helped by Rule 6 e 6 which states r ecords 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 This tells us that disclosure of matters occurring before a grand jury is the exception and not the rule Fund for Constitutional Gov't Case 15-2972 20 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 v Nat'l Archives Records Serv 656 F 2d 856 868 D C Cir 1981 But it says nothing about when disclosures are unauthorized The few hints that we find in the text of Rule 6 e all indicate that the list in subpart 3 E is not exclusive The presence of limiting language elsewhere in Rule 6 e in 2 B indicates that its absence in 3 E is intentional FED R CRIM P 6 e 2 B A rule of nonexclusivity does not mean that Rule 6 e 3 E is pointless it would be entirely reasonable for the rulemakers to furnish a list that contains frequently invoked reasons to disclose grand-jury materials so that the court knows that no special hesitation is necessary in those circumstances In addition the permissive language of Rule 6 e 3 E provides some support for Carlson's position it uses the word may which usually implies some degree of discretion United States v Rodgers 461 U S 677 706 1983 It also underscores that when ordering disclosure pursuant to 6 e 3 E the court has complete discretion over the manner of disclosure at a time in a manner and subject to any other condition it directs While this discretionary language presumably refers to discretion within the confines of Rule 6 e 3 E it provides some support for the general proposition that courts have discretion when unsealing records The history of the rules and the Committee Notes also support our reading of Rule 6 e 3 E The Federal Rules of Criminal Procedure first appeared in 1944 the modern version of Rule 6 e was enacted directly by Congress in 1977 See Pub L No 95-78 2 a 91 Stat 319 319 1977 see generally In re Grand Jury Proceedings Miller Brewing Co 687 F 2d 1079 1087 7th Cir 1982 discussing history of the 1977 amendments vacated in part on other grounds 717 F 2d 1136 7th Cir 1983 Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 21 Since that time there have been stylistic revisions but the substance of what is now Rule 6 e 3 E is unchanged The Committee Notes to which we give some weight see Schiavone v Fortune 477 U S 21 31 1986 also indicate that the Rule does not displace a court's limited inherent power to address situations not contemplated by the Rules Rule 6 was first enacted 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 Committee Notes 1944 It has been updated in response to court practices but one of those practices has been the recognition of the district court's wide discretion to address new situations as they arise In the specific context of Rule 6 e 's secrecy requirement 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 re Kutler 800 F Supp 2d 42 45 D D C 2011 finding that special circumstances justified release of grand-jury records The Supreme Court in Douglas Oil Co of California acknowledged that the Rules Committee updated Rule 6 in response to courts' recognition of the occasional need for litigants to have access to grand jury materials 441 U S at 220 To the same effect the Southern District of New York observed that 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 274 285 S D N Y 1999 quoting In re Hastings 735 F 2d 1261 1268 11th Cir 1984 The government also finds solace in the history of some unsuccessful efforts to change the rules but this is notoriously unreliable evidence even for those who are sympathetic to Case 15-2972 22 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 legislative history And in any event the Advisory Committee on Criminal Rules noted in the minutes of its meeting that it saw no need for the amendments because the courts had inherent power We give this history no weight one way or the other Finally we consider the decisions of our sister circuits There too the government stands alone no court has accepted its position The Second Eleventh and D C Circuits have all considered the issue and held that Rule 6 e 3 E contains a permissive not exhaustive list of reasons for release of grand jury materials See Craig 131 F 3d at 101-03 In re Biaggi 478 F 2d 489 2d Cir 1973 Hastings 735 F 2d at 1268 Haldeman v Sirica 501 F 2d 714 D C Cir 1974 en banc And the government acknowledged at oral argument that no district court has bought its theory either See e g Am Historical Ass'n 49 F Supp 2d at 285 In re Report Recommendation of June 5 1972 Grand Jury 370 F Supp 1219 1229 D D C 1974 The Second Circuit's reasoning in Craig is the most comprehensive In Craig a historian petitioned for the transcript of the grand jury investigation of Harry Dexter White an Assistant Secretary of the Treasury accused in 1948 of being a communist spy Craig 131 F 3d at 101 The court held that a district court has the inherent power to disclose the materials in exceptional circumstances and noted that historic importance can be a sufficient reason when there is little countervailing need for secrecy Id at 105 It emphasized that this inherent power is 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 Thus given the great weight of authority against the government's position Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 23 it reject ed the government's suggestion that the court unsettle this area of good law Id This accords with the Eleventh Circuit's comprehensive analysis in Hastings and the D C Circuit's briefer reasoning to the same effect in Haldeman See Hastings 735 F 2d at 1268 Haldeman 501 F 2d at 715 We have already gone so far as to say in dicta that w e may not always be bound by a strict and literal interpretation of Rule 6 e in the situation where there is some extraordinary and compelling need for disclosure in the interest of justice and little traditional need for secrecy remains In re Special Feb 1975 Grand Jury 662 F 2d 1232 1238 7th Cir 1981 aff'd on other grounds sub nom United States v Baggot 463 U S 476 1983 see also Corbitt 879 F 2d at 239 it is clear that disclosure of grand jury materials in situations not governed by Rule 6 e should be an uncommon occurrence Miller Brewing Co 687 F 2d at 1088 district court may not always be bound by a strict and literal interpretation of Rule 6 e The Tenth Circuit has likewise acknowledged that some relief may be proper under the court's inherent authority when there is a compelling need to unseal grand jury records for reasons not mentioned in Rule 6 e In re Special Grand Jury 892 450 F 3d 1159 1178 10th Cir 2006 The government argues that these opinions are no longer good law after Carlisle 517 U S 416 and Bank of Nova Scotia 487 U S 250 That point falls flat The Second Circuit's Craig decision post-dates both Carlisle and Bank of Nova Scotia and the government cited them both to that court And in any event all that Carlisle and Bank of Nova Scotia say is that a court may not directly contradict a Rule We have already explained why Carlson is asking for no such thing Case 15-2972 Document 39 Filed 09 15 2016 24 Pages 34 No 15-2972 We are persuaded by the logic of Carlson's arguments and the approach of our sister circuits with whom we now join The text and history of the Rules indicate that Rule 6 e 3 E is permissive not exclusive and it does not eliminate the district court's long-standing inherent supervisory authority to make decisions as needed to ensure the proper functioning of a grand jury While this inherent supervisory authority is limited to preserv ing or enhanc ing the traditional functioning of the grand jury Williams 504 U S at 50 that includes the power to unseal grand jury materials in circumstances not addressed by Rule 6 e 3 E See Pittsburgh Plate Glass Co 360 U S at 399-400 IV Given that the district court did have the power to exercise its discretion to determine whether to release the requested grand jury materials the only remaining question is whether it abused that discretion The government concedes that it did not and we see nothing in this record that would justify a contrary finding even had this point not been waived The district court engaged in a thoughtful and comprehensive analysis of the pros and cons of disclosure before granting Carlson's request and we are content to let its analysis stand The district courts retain certain inherent powers as the Supreme Court reaffirmed in Dietz One such power relates to their supervision of the disclosure of grand-jury materials We join with our sister circuits in holding that Rule 6 e 3 E does not displace that inherent power It merely identifies a permissive list of situations where that power can be used We therefore AFFIRM the order of the district court Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 25 SYKES Circuit Judge dissenting Rule 6 of the Federal Rules of Criminal Procedure comprehensively governs the conduct of grand-jury proceedings and subpart e of the rule requires that all matters occurring before the grand jury must be kept secret subject to certain narrow exceptions See FED R CRIM P 6 e 2 B e 3 E The petitioners here--a group of historians and journalists--asked the district court to unseal grand-jury records from a World War II-era espionage investigation described in fascinating detail in Chief Judge Wood's opinion The documents have historical significance but none of the rule's exceptions to secrecy even arguably applies To get around this impediment the petitioners argued that the exceptions are permissive not exclusive and the district court has inherent authority to unseal grand-jury materials for reasons not covered by the rule--here historical interest The United States objected arguing that the secrecy exceptions are exclusive and the court has no authority to disclose grand-jury materials in circumstances not specified in Rule 6 e 3 E The district judge sided with the petitioners and construed the rule's exceptions as only exemplary Relying on the court's inherent authority and applying a multifactor test developed by the Second Circuit in In re Craig 131 F 3d 99 106 2d Cir 1997 the judge ordered the grand-jury records unsealed My colleagues likewise adopt the permissive interpretation and affirm the district court's order unsealing the 70-yearold grand-jury materials I respectfully dissent In my view the government's interpretation of Rule 6 e 3 E is the correct one Treating the rule's list of authorized disclosures as merely permissive is inconsistent with the text and structure of the rule I would reverse the district court's order Case 15-2972 Document 39 26 Filed 09 15 2016 Pages 34 No 15-2972 Rule 6 e codifies the traditional rule of grand jury secrecy United States v Sells Eng'g Inc 463 U S 418 425 1983 together with certain narrow exceptions most of which deal with information sharing between federal prosecutors and other governmental agents for law-enforcement purposes See FED R CRIM P 6 e 3 Rule 6 e is captioned Recording and Disclosing the Proceedings and begins by establishing a recording requirement Except while the grand jury is deliberating or voting all proceedings must be recorded by a court reporter or suitable recording device Id RULE 6 e 1 The rule then designates the government's lawyer as the custodian of the record 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 Id The next subsection imposes a broad secrecy norm 2 Secrecy 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 Case 15-2972 Document 39 Filed 09 15 2016 No 15-2972 Pages 34 27 vii a person to whom disclosure is made under Rule 6 e 3 A ii or iii FED R CRIM P 6 e 2 B emphases added This list of persons bound by the nondisclosure obligation includes all participants in the grand jury's proceedings except witnesses The very next subsection contains the exceptions to the secrecy rule As I've noted most of the exceptions pertain to the authority of the government's lawyers to disclose grand-jury materials to other grand juries and to governmental officials as necessary to perform law-enforcement duties in specified circumstances See id RULE 6 e 3 A - D These authorized disclosures require no court intervention The exception at issue here pertains to the court's authority to unseal grand-jury records It states as follows 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 Case 15-2972 28 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 or at the request of the government's lawyer when the records are sought by iii a foreign government iv a tribal government or v a U S military official for the purpose of enforcing their respective criminal laws Id RULE 6 e 3 E 1 Three of the five circumstances on this list require a request from the government Id RULE 6 e 3 E iii - v A fourth permits the court to order disclosure at the request of a defendant seeking dismissal of an indictment Id RULE 6 e 3 E ii The only provision that contemplates release of grand-jury materials to a member of the general public is subsection e 3 E i which authorizes the court to order disclosure preliminarily to or in connection with a judicial proceeding The Supreme Court has held that this exception applies only when the purpose of the disclosure is to assist in preparation or conduct of a judicial proceeding that is pending or anticipated United States v Baggot 463 U S 476 480 1983 It's easy to see and everyone agrees that none of these exceptions even arguably applies to the petitioners' request which is not made by the government or a defendant and has nothing to do with a judicial proceeding My colleagues however read the list of exceptions as permissive not exhaustive As they see it the limiting language in subsection e 2 B -- unless these rules provide otherwise --is confined to the secrecy provision where it appears and has no effect on the 1 The rest of subpart e establishes rules for sealing indictments closing court hearings collateral to grand-jury proceedings maintaining grandjury records under seal and punishing knowing violations of Rule 6 by contempt See FED R CRIM P 6 e 4 - 7 Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 29 operation of the exceptions On this reading the exceptions are nonexclusive leaving the district court with residual inherent authority to disclose grand-jury materials to persons and for purposes not identified in the rule With respect I cannot agree In my view the secrecy requirement and its exceptions must be read together as an integrated whole After all the provisions appear sequentially and work together First subsection e 2 B imposes a strict nondisclosure rule unless these rules provide otherwise Next subsection e 3 creates a few narrowly tailored exceptions one of which empowers the court to disclose grand-jury materials to specified persons in specified circumstances The limiting language in the secrecy provision necessarily means that the exceptions are a closed set Subsection e 2 B mandates grand-jury secrecy unless these rules provide otherwise the exceptions in subsection e 3 provide otherwise but the court's authority to override the secrecy norm is limited to the particular circumstances specified in Rule 6 e 3 E As my colleagues interpret the rule the limiting language in the secrecy provision has no bearing at all on the exceptions the phrase unless these rules provide otherwise is buried in subsection e 2 B and cannot secretly appl y to the exceptions which are found in an entirely different subpart of the rule Majority op at 19 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 grand-jury materials to persons and in Case 15-2972 30 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 circumstances not listed in subsection e 3 E the limiting phrase unless these rules provide otherwise in the secrecy provision is ineffectual Indeed the Supreme Court has recognized that Rule 6 e is on its face an affirmative limitation on the availability of court-ordered disclosure of grand jury materials Baggot 463 U S at 479 Baggot held that the district court's authority to disclose grand-jury materials preliminarily to or in connection with a judicial proceeding does not include the authority to order disclosure to the Internal Revenue Service in connection with the determination of a taxpayer's civil tax liability Id at 480-82 The Court explained that Rule 6 e reflects a judgment that not every beneficial purpose or even every valid governmental purpose is an appropriate reason for breaching grand jury secrecy Id at 480 It goes without saying that the district court's inherent authority does not include the power to contravene or circumvent an express grant of or limitation on the court's power contained in a rule or statute Dietz v Bouldin 136 S Ct 1885 1892 2016 see also Carlisle v United States 517 U S 416 426 1996 Whatever the scope of the court's 'inherent power ' it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure Bank of Nova Scotia v United States 487 U S 250 254 1988 holding that a district court cannot invoke its inherent authority to circumvent the harmless-error inquiry required by Rule 52 a of the Federal Rules of Criminal Procedure Rule 6 e is an express limitation on the court's inherent authority It codifies the common-law rule of grand-jury secrecy subject to certain narrowly delimited exceptions and requires Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 31 that secrecy be maintained unless the rules specifically authorize disclosure To read the exceptions as permissive rather than exclusive disregards the text of the rule which mandates secrecy unless these rules provide otherwise The straightforward meaning of this text is that grand-jury secrecy may not be breached except as specifically provided in the rules To give effect to this limiting language the list of authorized disclosures in subsection e 3 E must be interpreted as exclusive not merely exemplary leaving the court with no residual authority to disclose grand-jury records to persons and for reasons not covered by the rule--not even reasons of historical significance surely a beneficial purpose but one not addressed in the rule Accordingly I cannot join the majority's decision to endorse the approach taken by the Second and Eleventh Circuits both of which have held that the district court retains inherent authority to disclose grand-jury materials in special circumstances outside the confines of Rule 6 e In re Craig 131 F 3d at 104-06 In re Hastings 735 F 2d 1261 1268-69 11th Cir 1984 My colleagues include the D C Circuit on this list of permissive circuits citing Haldeman v Sirica 501 F 2d 714 D C Cir 1974 en banc I think that's right but it bears noting that the Haldeman order simply announces the en banc court's agreement with the district judge's decision it contains no reasoning Id at 715 On the other hand the Eighth Circuit interprets the rule as I do That circuit treats the secrecy exceptions in Rule 6 e 3 E as exclusive United States v McDougal 559 F 3d 837 840 8th Cir 2009 C ourts will not order disclosure absent a recognized exception to Rule 6 e or a valid Case 15-2972 32 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 challenge to the original sealing order or its implementation For the reasons I've already explained I come down on the Eighth Circuit's side of this interpretive divide Finally even if the district court retains some residual inherent authority to disclose grand-jury records outside the circumstances specified in Rule 6 e I question whether this authority encompasses the power to fashion a new exception to the rule of grand-jury secrecy based solely on historical interest As the Supreme Court has explained the grand jury is independent of the court it is not textually assigned to any of the branches described in the first three Articles but is a constitutional fixture in its own right United States v Williams 504 U S 36 47 1992 internal quotation marks omitted T he whole theory of its function is that it belongs to no branch of the institutional Government serving as a kind of buffer or referee between the Government and the people Id And a lthough the grand jury normally operates in the courthouse and under judicial auspices its institutional relationship with the Judicial Branch has traditionally been so to speak at arm's length Id Williams thus reaffirmed the principle that the grand jury is operationally separate from and functionally independent of the court id at 47-50 and explained that the judge's direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office id at 47 As such any power federal courts may have to fashion on their own initiative rules of grand jury procedure is a very limited one not remotely comparable to the power they maintain over their own proceedings Id at 50 Case 15-2972 No 15-2972 Document 39 Filed 09 15 2016 Pages 34 33 It's hard to see how this very limited authority includes the sweeping power to release grand-jury records to the general public for reasons that strike the judge as socially desirable--here historical significance The court's inherent authority over its own proceedings extends only to actions that protect and vindicate the judicial process and the judicial institution itself See e g Chambers v NASCO Inc 501 U S 32 43- 44 1991 explaining that the court's inherent authority includes the power to punish contempt regulate admission to the bar discipline attorneys for misconduct dismiss suits for failure to prosecute and enforce decorum in the courtroom United States v Hasting 461 U S 499 505 1983 explaining that the court's inherent authority includes the power to protect the integrity of judicial processes If as the Supreme Court held in Williams the court's inherent authority over grand-jury procedure is far more limited I doubt that it includes the power to promulgate new exceptions to grand-jury secrecy completely untethered to any judicial proceeding or for reasons wholly unrelated to the judicial process 2 2 There are certainly good policy arguments to amend Rule 6 e to give the district court discretionary authority to unseal historically significant grand-jury records when the reasons for maintaining secrecy have abated Indeed the Department of Justice proposed such an amendment in 2011 See generally Letter from Hon Eric H Holder Jr Att'y Gen to Hon Reena Raggi Chair Advisory Comm on the Criminal Rules Oct 18 2011 http www uscourts gov rules-policies archives suggestions hon-eric-hholder-jr-11-cr-c In June 2012 the Federal Advisory Committee on the Criminal Rules rejected the proposal See Judicial Conference Comm on Rules of Practice and Procedure Minutes of Meeting June 11-12 2012 at 44 http www uscourts gov rules-policies archives meeting-minutes committee-rules-practice-and-procedure-june-2012 The minutes reflect that the committee saw no need for the amendment concluding that in the Case 15-2972 34 Document 39 Filed 09 15 2016 Pages 34 No 15-2972 Accordingly I would reverse the district court's order The court lacked the authority to unseal the Chicago Tribune grandjury records based solely on their historical significance a reason not addressed in Rule 6 e 3 E rare cases where disclosure of historic materials had been sought the district judges acted reasonably in referring to their inherent authority Id My colleagues decline to give this history any weight one way or the other majority op at 22 and I agree                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu