Marion E. Pitch v. United States

953 F.3d 1226

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 27, 2020
• Docket: 17-15016
• Status: Published

Opinion

Case: 17-15016 Date Filed: 03/27/2020 Page: 1 of 104

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-15016 ________________________

D.C. Docket No. 5:14-mc-00002-MTT

MARION E. PITCH, The Personal Representative of the Estate of Anthony S. Pitch,

Plaintiff – Appellee,

LAURA WEXLER,

Intervenor,

versus

UNITED STATES OF AMERICA,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of Georgia ________________________

(March 27, 2020) Case: 17-15016 Date Filed: 03/27/2020 Page: 2 of 104

Before ED CARNES, Chief Judge, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, TJOFLAT, and MARCUS, Circuit Judges.*

TJOFLAT, Circuit Judge:

The grand jury, as an institution, has long been understood as a

“constitutional fixture in its own right,” operating independently of any branch of

the federal government. United States v. Williams, 504 U.S. 36, 47, 112 S. Ct.

1735, 1742 (1992) (internal quotation marks omitted). That independence allows

the grand jury to serve as a buffer between the government and the people with

respect to the enforcement of the criminal law. But the ability of the grand jury to

serve this purpose depends upon maintaining the secrecy of its proceedings. The

long-established policy of upholding the secrecy of the grand jury helps to protect

the innocent accused from facing unfounded charges, encourages full and frank

testimony on the part of witnesses, and prevents interference with the grand jury’s

deliberations. See Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219, 99 S.

Ct. 1667, 1673 (1979).

* Judges Gerald Bard Tjoflat and Stanley Marcus were members of the en banc Court that heard oral argument in this case. Judges Tjoflat and Marcus took senior status on November 19, 2019, and December 6, 2019, respectively, and both have elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(2). Judges Robert J. Luck and Barbara Lagoa joined the Court on November 19, 2019, and December 6, 2019, respectively, and did not participate in these en banc proceedings. 2 Case: 17-15016 Date Filed: 03/27/2020 Page: 3 of 104

Rule 6 of the Federal Rules of Criminal Procedure, which governs matters

related to the grand jury, continues this traditional practice of secrecy. In

particular, Rule 6(e) codifies the traditional rule of grand jury secrecy and provides

a comprehensive framework for determining whether and under what conditions

the records of grand jury proceedings may be released. The issue we must decide

is whether a district court may order the release of grand jury materials in

circumstances not explicitly covered by Rule 6(e).

In this case, Anthony S. Pitch, an author and historian, petitioned the U.S.

District Court for the Middle District of Georgia for the grand jury transcripts

related to the Moore’s Ford Lynching—a horrific event involving the murders of

two African American couples for which no one has ever been charged—to be

used in his book about the lynching. His request admittedly did not fall within any

of Rule 6(e)’s stated exceptions to the general rule of grand jury secrecy. The

District Court nonetheless granted his petition, relying on our decision in In re

Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th

Cir. 1984). In Hastings, we held that a district court may, pursuant to its inherent,

supervisory power over the grand jury, authorize the disclosure of grand jury

records outside of Rule 6(e)’s enumerated exceptions in certain “exceptional

circumstances.” Id. at 1268–69. Here, the District Court found that the historical

significance of the grand jury’s investigation, and the critical role the records of 3 Case: 17-15016 Date Filed: 03/27/2020 Page: 4 of 104

that investigation would play in enhancing the historical record on this tragic event,

amounted to “exceptional circumstances” that justified the Court’s use of its

inherent power to order disclosure. In re Pitch, 275 F. Supp. 3d 1373, 1383 (M.D.

Ga. 2017), aff’d sub nom. Pitch v. United States, 915 F.3d 704 (11th Cir. 2019),

reh’g en banc granted, opinion vacated, 925 F.3d 1224 (11th Cir. 2019).

A panel of this Court, “bound by our decision in Hastings,” affirmed the

District Court’s exercise of its inherent, supervisory power to authorize disclosure

of grand jury records outside the confines of Rule 6(e) for matters of historical

significance. 915 F.3d at 707; see also id. at 713 (Jordan, J., concurring) (“Given

our decision in Hastings, I do not see how we can say that the district court abused

its discretion in relying on its inherent authority.”). We reheard the case en banc to

reconsider our holding in Hastings—that district courts have inherent power to go

beyond the exceptions listed in Rule 6(e)—and to determine whether, if such

inherent power does exist, district courts may exercise that power to recognize an

exception to grand jury secrecy for matters of historical significance. We now

hold that Rule 6(e) is exhaustive, and that district courts do not possess inherent,

supervisory power to authorize the disclosure of grand jury records outside of Rule

6(e)(3)’s enumerated exceptions. We therefore overrule our holding in Hastings to

the contrary.

4 Case: 17-15016 Date Filed: 03/27/2020 Page: 5 of 104

I.

To appreciate why Pitch is seeking the grand jury records in a decades-old

case, we begin by describing the incident that prompted the grand jury’s

investigation and the continued interest in that investigation. In July 1946, a crowd

of people in Walton and Oconee Counties, Georgia gathered as two African

American couples were dragged from a car and brutally murdered in what some

consider to be the last mass lynching in American history. The event, known as

the Moore’s Ford Lynching, sparked national outrage and eventually led both the

Georgia Bureau of Investigation (“GBI”) and the Federal Bureau of Investigation

(“FBI”) to investigate the murders. In late 1946, after approximately four months

of investigation, a federal grand jury was convened in the U.S. District Court for

the Middle District of Georgia in Athens. The grand jury heard sixteen days of

testimony from countless witnesses, but nonetheless failed to charge anyone with

the murders. The case remains unsolved.

The circumstances surrounding the Moore’s Ford Lynching, and especially

the grand jury’s failure to indict, continue to draw attention from activists and

scholars alike. The Moore’s Ford Memorial Committee—a group of politicians,

civil rights activists, and victims’ relatives—gather each year to lead a rally and a

reenactment in honor of the victims. The GBI and FBI have reopened their

investigations into the lynching several times over the past seven decades, but to 5 Case: 17-15016 Date Filed: 03/27/2020 Page: 6 of 104

no avail. More recently, in 2007, over three thousand pages of the FBI

investigation file were released to the public under a Freedom of Information Act

request. The records of the proceedings before the 1946 grand jury are one of the

few records related to the Moore’s Ford Lynching that remain sealed.

Enter Anthony S. Pitch. Pitch was a historian who authored several books

about major historic events, such as President Abraham Lincoln’s assassination

and the British invasion of Washington in 1814. His latest work, published in

March 2016, focused on the Moore’s Ford Lynching. Seeking additional source

material for his book, Pitch petitioned the District Court in 2014 to unseal the

federal grand jury records related to the Moore’s Ford Lynching. The District

Court initially denied the petition because there was no evidence that the records

existed. Pitch renewed his petition in 2017, after learning that the transcripts of the

grand jury testimony may be located at the National Archives in Washington, D.C.

The District Court ordered the Government to produce the records for in camera

inspection, and the Government filed the transcripts under seal.

This time, the District Court granted Pitch’s request and ordered the

transcripts unsealed. Although the District Court acknowledged that “Pitch’s

request does not fit within any of Rule 6(e)’s exceptions,” it invoked its inherent

power to release the transcripts under our reasoning in Hastings. 275 F. Supp. 3d

at 1381–83. 6 Case: 17-15016 Date Filed: 03/27/2020 Page: 7 of 104

In Hastings, the Judicial Investigating Committee of the Eleventh Circuit

sought access to the records of the grand jury that had indicted District Judge

Alcee Hastings on bribery charges—charges for which Hastings was later tried and

acquitted—to determine whether Hastings should be disciplined for violations of

the Code of Judicial Conduct. 735 F.2d at 1263. We noted 1 that the Committee’s

request did not quite fall within the exception in then-Rule 6(e)(3)(C)(i)—now

Rule 6(e)(3)(E)(i)—for disclosures, “preliminarily to or in connection with a

judicial proceeding,” since the investigation of Hastings was not a judicial

proceeding in the “strict legal sense.” Id. at 1271–72.2 Nonetheless, we held that

the District Court properly exercised its inherent, supervisory power over the grand

jury to authorize release of the materials outside the strict bounds of Rule 6(e). Id.

at 1272.3 In doing so, we explained that Rule 6(e)’s exceptions “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.” Id. at 1269 (citing Fallen v.

1 The panel that decided Hastings was composed of three non-Eleventh Circuit judges selected by the Chief Justice of the U.S. Supreme Court pursuant to 28 U.S.C. § 291. All Eleventh Circuit judges had recused themselves because of the conflict presented by the underlying investigation of a district judge within the Eleventh Circuit. 2 We explained, however, that the proceedings “closely mirror[ed] Justice Holmes’s definition” of a “judicial inquiry”: “[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.” Id. at 1271 (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29 S. Ct. 67, 69 (1908)). 3 We did so largely because we believed the committee’s proceeding was so “closely akin” to the judicial-proceeding exception. Id. 7 Case: 17-15016 Date Filed: 03/27/2020 Page: 8 of 104

United States, 378 U.S. 139, 142, 84 S. Ct. 1689, 1691 (1964)). District courts

therefore retained “inherent power beyond the literal wording of Rule 6(e)” to

authorize disclosure of grand jury materials not explicitly covered by the rule. Id.

at 1268. We cautioned, however, that district courts may only act outside Rule

6(e) in “exceptional circumstances consonant with the rule’s policy and spirit.” Id.

at 1269.

In this case, a divided panel of this Court affirmed that the District Court

appropriately exercised its substantial discretion under Hastings when it decided to

release the records of the Moore’s Ford grand jury pursuant to its inherent,

supervisory power. Pitch, 915 F.3d at 713. Specifically, the panel explained that

“[u]nder the proper circumstances, grand jury records on a matter of exceptional

historical significance may trigger a district court’s inherent authority to disclose

them.” Id. at 710. Put differently, the “exceptional historical significance” of the

grand jury records may constitute the “exceptional circumstances” described in

Hastings that would justify the district court in exercising its inherent power to

disclose the records, even though no Rule 6(e) exception applies. See Hastings,

735 F.2d at 1269. In determining whether the facts that Pitch presented amounted

to “exceptional circumstances,” the panel (like the District Court) balanced the

public interest in the continued secrecy of the grand jury records against the need

for disclosure, id. at 709–10 (citing Hastings, 735 F.2d at 1272, 1275; Douglas Oil, 8 Case: 17-15016 Date Filed: 03/27/2020 Page: 9 of 104

441 U.S. at 223, 99 S. Ct. at 1675), relying primarily on the multi-factor test

outlined by the Second Circuit in In re Petition of Craig, 131 F.3d 99, 106 (2d Cir.

1997). 4 It ultimately found that, because of the substantial historical interest in the

records, which has persisted over time, and the relatively low risk that any

witnesses, suspects, or their immediate family members would be intimidated,

persecuted, or arrested, the District Court did not abuse its discretion in unsealing

the grand jury materials. Pitch, 915 F.3d at 711–13.

We voted to rehear the case en banc to determine whether we should

overrule our holding in Hastings—that district courts have inherent power to go

beyond the exceptions listed in Rule 6(e) to order the disclosure of grand jury

records—and, if not, whether a district court may exercise its inherent power to

recognize a historical-significance exception to the general rule of grand jury

4 The Second Circuit in In re Petition of Craig developed the following “non-exhaustive list of factors” for a trial court to weigh when applying the Douglas Oil balancing test to the disclosure of historically significant grand jury records: (i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question. 131 F.3d at 106. 9 Case: 17-15016 Date Filed: 03/27/2020 Page: 10 of 104

secrecy.5

II.

The questions before us implicate the long-established policy that grand jury

proceedings in federal courts should be kept secret. See United States v. Sells

Eng’g, Inc., 463 U.S. 418, 424, 103 S. Ct. 3133, 3138 (1983); United States v.

Procter & Gamble Co., 356 U.S. 677, 681, 78 S. Ct. 983, 986 (1958). The

Supreme Court has long “recognized that the proper functioning of our grand jury

system depends upon the secrecy of grand jury proceedings.” Douglas Oil, 441

U.S. at 218, 99 S. Ct. at 1672 (citing Procter & Gamble, 356 U.S. at 681, 78 S. Ct.

at 986). That secrecy serves several vital purposes, including:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to

5 Pitch passed away while this case was pending en banc. We granted the unopposed motion to substitute Marion E. Pitch, the personal representative of Anthony Pitch’s estate, as the Petitioner-Appellee in this appeal pursuant to Federal Rule of Appellate Procedure 43(a). We also asked the parties to file supplemental letter briefs to address whether the appeal is moot in light of Pitch’s death. Pitch’s Estate and his family have expressed their intent to carry out Pitch’s research; they intend to review the grand jury transcripts and to use those transcripts to complete the book that Pitch had been working on until his untimely death. To that end, they sought the assistance of Laura Wexler, another historian who, like Pitch, has authored a book on the Moore’s Ford Lynching. Ms. Wexler separately filed a motion to intervene in this appeal, claiming that she had a similar interest in securing the release of the grand jury records so that she could complete her own scholarly work on the Moore’s Ford Lynching. We granted the motion to intervene. In light of the substitution of Pitch’s Estate and the addition of Ms. Wexler as a party—and the apparent agreement between the two parties to complete the project for which the grand jury records were originally sought—we find that this appeal is not moot. 10 Case: 17-15016 Date Filed: 03/27/2020 Page: 11 of 104

encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

Id. at 219 n.10, 99 S. Ct. at 1673 n.10 (alteration in original) (quoting Procter &

Gamble, 356 U.S. at 681–82 n.6, 78 S. Ct. at 986 n.6). Accordingly, both

Congress and the Supreme Court have consistently stood ready to defend the

secrecy of the grand jury against any unwarranted intrusions. Sells Eng’g, 463

U.S. at 425, 103 S. Ct. at 3138.

Rule 6(e) codified the traditional rule of grand jury secrecy. Id. Since its

promulgation in 1946, Rule 6(e) has governed the disclosure of grand jury records.

Illinois v. Abbott & Assocs., 460 U.S. 557, 566, 103 S. Ct. 1356, 1361 (1983).

Even so, Pitch argues that Rule 6(e) is not exhaustive, and thus does not eliminate

district courts’ inherent, supervisory power over the grand jury to authorize

disclosure in circumstances not covered by the rule. Relying on Carlson v. United

States, 837 F.3d 753, 763 (7th Cir. 2016), he argues that Rule 6(e) is merely

permissive, and as such does not “abrogate the power of the courts” to exercise

their historic “inherent power” in the absence of a contradictory Rule 6(e)

provision. Accordingly, he says, since Rule 6(e) does not cover the type of

disclosure requested here, “[a] judge may regulate [the] practice in any manner

consistent with federal law, these rules, and the local rules of the district [court].” 11 Case: 17-15016 Date Filed: 03/27/2020 Page: 12 of 104

Fed. R. Crim. P. 57(b); see also Carlson, 837 F.3d at 762 (explaining that Rule

57(b) informs a district court what it may do when the Federal Rules of Criminal

Procedure are otherwise silent).

Since we first interpreted Rule 6(e) in Hastings, several other circuits have

considered whether district courts may authorize the disclosure of grand jury

records outside the circumstances listed in that rule. Some agree with Pitch and so

have held, like we did in Hastings, that district courts may invoke their inherent,

supervisory authority over the grand jury to permit the disclosure of grand jury

records outside the text of Rule 6(e). See Carlson, 837 F.3d at 763–66; In re

Petition of Craig, 131 F.3d at 103; see also McKeever v. Barr, 920 F.3d 842, 853–

55 (D.C. Cir. 2019) (Srinivasan, J., dissenting), cert. denied, 140 S. Ct. 597 (2020);

cf. In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005) (holding that a

district court may exercise its inherent judicial power to impose an obligation of

secrecy on a grand jury witness, even though witnesses are not covered by Rule

6(e)(2)(B)’s secrecy requirement). Other circuits have refused to authorize the

disclosure of grand jury records outside of Rule 6(e)’s stated exceptions to the

general rule of secrecy, finding those exceptions to be exhaustive. See McKeever,

920 F.3d at 845; United States v. McDougal, 559 F.3d 837, 840–41 (8th Cir. 2009)

(“‘Because the grand jury is an institution separate from the courts, over whose

functioning the courts do not preside,’ . . . courts will not order disclosure absent a 12 Case: 17-15016 Date Filed: 03/27/2020 Page: 13 of 104

recognized exception to Rule 6(e) or a valid challenge to the original sealing order

or its implementation.” (alteration omitted) (quoting Williams, 504 U.S. at 47, 112

S. Ct. at 1742)); In re Grand Jury 89-4-72, 932 F.2d 481, 488 (6th Cir. 1991)

(“[W]ithout an unambiguous statement to the contrary from Congress, we cannot,

and must not, breach grand jury secrecy for any purpose other than those embodied

by the Rule.”); see also Carlson, 837 F.3d at 767–68 (Sykes, J., dissenting).6

We now depart from our analysis in Hastings, and join the Sixth, Eighth,

and District of Columbia Circuits in their interpretation of Rule 6(e). We disagree

with Pitch that Rule 6(e) is merely a permissive rule—“a rule that permits a court

to do something and does not include any limiting language.” Carlson, 837 F.3d at

763. To the contrary, Rule 6(e) provides an exhaustive list of detailed

circumstances in which a district court may authorize disclosure. It lays out a

general rule of secrecy followed by a set of carefully considered exceptions that

6 Three other circuits have also suggested, in dicta, that Rule 6(e)’s exceptions are exhaustive. See United States v. Educ. Dev. Network Corp., 884 F.2d 737, 740 (3d Cir. 1989) (“Rule 6(e)(2) provides in general that matters occurring before the grand jury may not be disclosed. Disclosure of such matters may only be made under the narrow exceptions listed in Rule 6(e)(3).” (emphasis added)); In re J. Ray McDermott & Co., Inc., 622 F.2d 166, 172 (5th Cir. 1980) (“Rule 6(e) . . . permit[s] disclosure of grand jury materials in certain specific circumstances. A district court to whom application for disclosure is made does exercise discretion in granting disclosure but may not thereby enlarge the exceptions to grand jury secrecy.” (emphases added)); In re Grand Jury Subpoenas, Apr., 1978, at Baltimore, 581 F.2d 1103, 1108–09 (4th Cir. 1978) (“Rule 6(e), as recently amended, provides generally that materials secured by the grand jury in the course of its investigation shall not be disclosed except as authorized in subsection (2).” (emphasis added) (footnote omitted)). 13 Case: 17-15016 Date Filed: 03/27/2020 Page: 14 of 104

limit the district court’s authority to disclose the records of a grand jury’s

proceedings. The rule thus leaves no room for district courts to fashion new

exceptions beyond those listed in Rule 6(e). We therefore hold that Rule 6(e) by

its plain terms limits disclosures of grand jury materials to the circumstances

enumerated therein.

A.

Rule 6(e) covers both the recording of the grand jury’s proceedings and the

disclosure of those records. With respect to disclosure, Rule 6(e)(2), entitled

“Secrecy,” announces a general rule of secrecy. It mandates that various persons

who participate before the grand jury, other than witnesses, “must not disclose a

matter occurring before the grand jury,” “[u]nless these rules provide otherwise.”

Fed. R. Crim. P. 6(e)(2)(B).7

Rule 6(e)(3) then lays out a set of five detailed “[e]xceptions” to this general

rule of nondisclosure. Fed. R. Crim. P. 6(e)(3). It provides that a government

attorney may, 8 without prior court approval, disclose grand jury records to other

7 Rule 6(e)(2)(B) lists seven individuals who are prohibited from disclosing a matter occurring before the grand jury: 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, and a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). 8 Under Rule 6(e)(1), the grand jury records remain in the custody and control of a government attorney, unless the district court orders otherwise. Thus, as a practical matter, it is the government—and not the district court—that actually discloses the grand jury records. 14 Case: 17-15016 Date Filed: 03/27/2020 Page: 15 of 104

government attorneys or officials for use in performing the attorneys’ duties, or to

other grand juries for the purpose of conducting criminal or intelligence

investigations. See Fed. R. Crim. P. 6(e)(3)(A)–(D). It then specifies that a “court

may authorize disclosure—at a time, in a manner, and subject to any other

conditions that it directs—of a grand-jury matter” (1) “preliminarily to or in

connection with a judicial proceeding,” Fed. R. Crim. P. 6(e)(3)(E)(i), (2) “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,” Fed. R. Crim.

P. 6(e)(3)(E)(ii), or (3) at the request of the government for use in a foreign, state,

tribal, or military criminal investigation, Fed. R. Crim. P. 6(e)(3)(E)(iii)–(v).

The text and structure of Rule 6(e) thus indicate that the rule is not merely

permissive. Rather, it imposes a general rule of nondisclosure, then instructs that

deviations from that rule are not permitted “[u]nless these rules provide

otherwise,” and then provides a detailed list of exceptions that specifies precisely

when the rules “provide otherwise.”

“Where Congress explicitly enumerates certain exceptions to a general

prohibition, additional exceptions are not to be implied, in the absence of evidence

of a contrary legislative intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–

17, 100 S. Ct. 1905, 1910 (1980). We find nothing in the text of Rule 6(e) to

indicate an intent to permit a district court to go beyond the enumerated 15 Case: 17-15016 Date Filed: 03/27/2020 Page: 16 of 104

exceptions. The Rule does not, for example, introduce the exceptions with a term

like “including,” which might indicate that the exceptions are merely illustrative.

See McKeever, 920 F.3d at 845. Nor does it contain a residual exception that

might accommodate the judicial fashioning of new exceptions in addition to the

ones listed. See id.

In fact, the text of Rule 6(e) suggests just the opposite intent. The drafters of

Rule 6(e)(2) permitted deviations from the general rule of secrecy only when the

“rules provide otherwise”—not when the court provides otherwise. That choice of

language is significant because in another subsection of Rule 6(e), the drafters

directly and unambiguously gave the district court the power to act outside the text

of the rule. Rule 6(e)(1) provides: “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.” Fed. R. Crim. P. 6(e)(1) (emphasis

added). This subsection demonstrates that the drafters of Rule 6 knew how to craft

a provision granting the district court the authority to act outside the text of the

rule, but intentionally chose not to do so in Rule 6(e)(2). Their decision to use the

phrase “[u]nless these rules provide otherwise,” instead of the phrase “[u]nless the

court orders otherwise” from the immediately preceding subsection, indicates that

the drafters intended the general rule of secrecy to be breached only in accordance

with the Federal Rules of Criminal Procedure, and not that a district court had the 16 Case: 17-15016 Date Filed: 03/27/2020 Page: 17 of 104

power to do so outside the confines of the rule. See Carlson, 837 F.3d at 770

(Sykes, J., dissenting) (“The straightforward meaning of th[e] text [of the rule,

which mandates secrecy ‘unless these rules provide otherwise’] is that grand-jury

secrecy may not be breached except as specifically provided in the rules.”). This

intentional choice of language highlights the drafters’ understanding that disclosure

should be limited to the text of Rule 6(e).

Our interpretation of Rule 6(e) as exhaustive is consistent with the Supreme

Court’s warning that we must be reluctant to conclude that a breach of grand jury

secrecy has been authorized in the absence of a clear indication in a Rule or statute.

Sells Eng’g, 463 U.S. at 425, 103 S. Ct. at 3138; see also Abbott & Assocs., 460

U.S. at 572–73, 103 S. Ct. at 1364 (explaining that while Congress “has the power

to modify the rule of secrecy . . . the rule is so important, and so deeply-rooted in

our traditions, that we will not infer that Congress has exercised such a power

without affirmatively expressing its intent to do so”). Indeed, while the Supreme

Court has not yet addressed the question, the Court has on several occasions

suggested that Rule 6(e) is exclusive. See McKeever, 920 F.3d at 846 (collecting

cases). As early as 1959, the Supreme Court recognized that “any disclosure of

grand jury minutes is covered by [Rule] 6(e).” Pittsburgh Plate Glass Co. v.

United States, 360 U.S. 395, 398, 79 S. Ct. 1237, 1240 (1959). And when

interpreting the exception in Rule 6(e) for grand jury matters “preliminarily to or in 17 Case: 17-15016 Date Filed: 03/27/2020 Page: 18 of 104

connection with a judicial proceeding,” the Supreme Court explained that the

exception “is, on its face, an affirmative limitation on the availability of court-

ordered disclosure of grand jury materials.” United States v. Baggot, 463 U.S. 476,

479, 103 S. Ct. 3164, 3167 (1983). More recently, the Supreme Court described

Rule 6(e) as “placing strict controls on disclosure of ‘matters occurring before the

grand jury.’” Williams, 504 U.S. at 46 n.6, 112 S. Ct. at 1741–42 n.6 (citing Sells

Eng’g, 463 U.S. 418, 103 S. Ct. 3133).

The contrary interpretation proposed by Pitch—that Rule 6(e)(3)(E)’s

exceptions are only permissive—would render the detailed list of exceptions to

Rule 6(e)(2) merely precatory. It is hard to imagine why Congress and the Rules

Committee would bother to craft and repeatedly amend these detailed exceptions if

they were meant only to be an illustration of when a district court may authorize

the disclosure of grand jury records. We therefore disagree with the Seventh

Circuit that it is “entirely reasonable” to infer that Congress and the Supreme Court

intended the list as a guideline of frequently invoked reasons for disclosing grand

jury materials, simply to indicate to the district court that it should not hesitate to

authorize disclosure in those cases. See Carlson, 837 F.3d at 764–65.

In fact, the Supreme Court has recognized that the exceptions listed in Rule

6(e)(3) “reflect[] a judgment that not every beneficial purpose, or even every valid

governmental purpose, is an appropriate reason for breaching grand jury secrecy.” 18 Case: 17-15016 Date Filed: 03/27/2020 Page: 19 of 104

Baggot, 463 U.S. at 480, 103 S. Ct. 3167 (interpreting what is now Rule

6(e)(3)(E)(i)). Pitch’s interpretation of Rule 6(e) would thus permit district courts

to circumvent the policy judgments made by Congress and the Supreme Court that

grand jury secrecy should be relaxed for certain purposes and not others. It would

allow a single district court to disrupt the balance struck by Congress and the

Supreme Court to create such new exceptions as it thinks make good public

policy,9 contrary to the express limitation on the district court’s power contained in

Rule 6(e). See Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016); McKeever, 920

F.3d at 845; see also Carlisle v. United States, 517 U.S. 416, 426, 116 S. Ct. 1460,

1466 (1996) (“Whatever the scope of this ‘inherent power,’ however, it does not

include the power to develop rules that circumvent or conflict with the Federal

Rules of Criminal Procedure.”).

9 The problem is amplified here, as the creation of a historical-significance exception involves two layers of policy judgments. The first is the decision to recognize an exception for matters of historical significance generally. The second involves deciding what it means for something to be so “historically significant” that the interest in disclosure outweighs any interest that the grand jurors, witnesses, and future generations, among others, have in maintaining the secrecy of the proceedings. Under Pitch’s interpretation of Rule 6(e), then, a single district judge would have the authority to substitute his or her own judgments on these policy questions on a case-by-case basis, with the inevitable result that the exceptions to the general rule of grand jury secrecy would vary from one court to the next across the nation. Without consistent guidance as to when grand jury testimony may be disclosed, future witnesses may be deterred from testifying before the grand jury, and potential grand jurors may be deterred from serving on grand juries, fearing that a judge may someday decide that the subject-matter of the grand jury’s investigation was so important that it should no longer be kept secret. See Douglas Oil, 441 U.S. at 222, 99 S. Ct. at 1674. The uncertainty would have a chilling effect on future grand jury witnesses and would render the grand jury as an institution inoperable. See, e.g., id. at 218, 99 S. Ct. at 1672 (recognizing the importance of secrecy to the proper functioning of the grand jury system). 19 Case: 17-15016 Date Filed: 03/27/2020 Page: 20 of 104

For these reasons, we find that the text of Rule 6(e) is best understood as

limiting the disclosure of grand jury materials to the circumstances carefully

defined in Rule 6(e)(3)(E). We therefore agree with the Government that Rule

6(e)(3)(E)’s list of exceptions to the general rule of grand jury secrecy is exclusive,

and that district courts may not rely on their inherent, supervisory power to

authorize disclosure of grand jury materials outside the bounds of that rule. To the

extent that we held in Hastings that such inherent power does exist, that holding is

overruled.

B.

Pitch’s textual arguments to the contrary are not persuasive. Pitch first

argues that district courts are not bound by the obligation of secrecy in Rule

6(e)(2), because the district court is not on the list of people in Rule 6(e)(2)(B) to

whom the obligation of secrecy applies. Rule 6(e)(2)(A) provides 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) then lists the seven

people who are prohibited from disclosing any matter occurring before the grand

jury: 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, and other government personnel to whom disclosure is made under

the rules or by statute. Fed. R. Crim. P. 6(e)(2)(B). The district court is absent 20 Case: 17-15016 Date Filed: 03/27/2020 Page: 21 of 104

from this list. Accordingly, the argument goes, the district court cannot be bound

by the obligation of secrecy in Rule 6(e)(2).

Pitch’s argument is difficult to square with how the grand jury operates in

practice. The grand jury is by design an institution independent from the Judicial

Branch. Williams, 504 U.S. at 47–48, 112 S. Ct. at 1742–43 (citing United States

v. Calandra, 414 U.S. 338, 343, 94 S. Ct. 613, 617 (1974)). Accordingly, the

district court neither presides over the grand jury nor monitors its proceedings. Id.

at 48, 112 S. Ct. at 1742 (citing Calandra, 414 U.S. at 343, 94 S. Ct. at 617). In

fact, Rule 6 does not permit the district judge to be present in the grand jury room

at all. See Fed. R. Crim. P. 6(d). The extent of the district court’s “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,” or

to enforcing grand jury subpoenas. Williams, 504 U.S. at 47–48, 112 S. Ct. at

1742–43 (citing Calandra, 414 U.S. at 343, 94 S. Ct. at 617).

It is not surprising, then, that district courts are not included in Rule

6(e)(2)(B). The individuals listed in Rule 6(e)(2)(B) are those who are either

present in the grand jury room during its proceedings or who are otherwise made

privy to the grand jury’s proceedings because Rule 6(e)(3) explicitly so provides.

Unlike the individuals listed, the district court is not a participant in the grand jury

proceedings, and thus is not ordinarily privy to those proceedings unless and until a 21 Case: 17-15016 Date Filed: 03/27/2020 Page: 22 of 104

party raises an issue having to do with the grand jury, see, e.g., Fed. R. Crim. P.

6(e)(3)(E)(ii), or the district court is called upon by the grand jury to enforce a

subpoena. In fact, Rule 6(e)(1) contemplates that, in the ordinary case, a

government attorney maintains custody of the grand jury records—not the court.10

Therefore, the district court’s absence from Rule 6(e)(2)(B) does not mean that the

district court has no secrecy obligations with respect to grand jury proceedings.

Second, Pitch points to the text of Rule 6(e)(3)(E), which prefaces its list of

exceptions with the following phrase: “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 . . . .” Pitch argues that the use of the word “may” here implies “some

degree of discretion,” which supports a permissive (rather than exclusive) reading

of Rule 6(e)(3)(E)’s enumerated exceptions. See Carlson, 837 F.3d at 765

(quoting United States v. Rodgers, 461 U.S. 677, 706, 103 S. Ct. 2132, 2149

(1983)).

To be sure, a district court must exercise a degree of discretion in deciding

whether to release grand jury materials under Rule 6(e). But it does not follow that

Rule 6(e) is merely permissive. “May” in this context means only that, even if a

10 See supra note 8. When the district court authorizes disclosure under Rule 6(e)(3)(E), then, it must do so by ordering a government attorney to disclose the grand jury records that are in his or her possession. See McKeever, 920 F.3d at 848. In effect, the court releases the government attorney from his or her obligation of secrecy under Rule 6(e)(2)(B). 22 Case: 17-15016 Date Filed: 03/27/2020 Page: 23 of 104

request for grand jury materials falls within one of Rule 6(e)(3)(E)’s enumerated

exceptions, a district court may nonetheless exercise its discretion to deny the

request. A petitioner is not entitled to the release of grand jury materials simply

because his or her request falls within a listed exception to grand jury secrecy. A

district court must still exercise its “substantial discretion” to weigh “the extent of

the need for continuing grand jury secrecy, the need for disclosure, and the extent

to which the request was limited to that material directly pertinent to the need for

disclosure.” Douglas Oil, 441 U.S. at 223–24, 99 S. Ct. at 1675.

The Supreme Court recognized as much in Pittsburgh Plate Glass when it

stated that “Rule 6(e) is but declaratory” of the principle that the disclosure of

grand jury materials is committed to the discretion of the trial court. 360 U.S at

399, 79 S. Ct. at 1240. Pitch reads Pittsburgh Plate Glass as supporting the

proposition that district courts have broad discretion to release grand jury materials

outside of Rule 6(e)’s enumerated exceptions. But in fact, Pittsburgh Plate Glass

involved a request for disclosure under one of Rule 6(e)’s enumerated exceptions.

See id. at 396 n.1, 79 S. Ct. at 1239 n.1; see also id. at 398, 79 S. Ct. at 1240

(“Petitioners concede, as they must, that any disclosure of grand jury minutes is

covered by [Rule] 6(e).”). Thus, “[t]he only ‘discretion’ at issue involved the

district court’s determination whether the party seeking material covered by the

exception had made a sufficiently strong showing of need to warrant disclosure.” 23 Case: 17-15016 Date Filed: 03/27/2020 Page: 24 of 104

McKeever, 920 F.3d at 846 (citing Pittsburgh Plate Glass, 360 U.S. at 398–99, 79

S. Ct. at 1240); accord Douglas Oil, 441 U.S. at 217–24, 99 S. Ct. at 1672–75

(describing the same discretion). While a district court’s determination whether to

order disclosure under Rule 6(e) necessarily involves some degree of discretion,

that discretion is limited by the text of the rule. Pittsburgh Plate Glass does not

suggest otherwise.

III.

Pitch also makes two arguments based on the Advisory Committee’s notes

to Rule 6. First, Pitch points to language in the Advisory Committee note to the

original Rule 6(e), which states that the rule “continues the traditional practice of

secrecy on the part of members of the grand jury, except when the court permits a

disclosure.” Fed. R. Crim. P. 6 original advisory committee’s note (emphasis

added) (citing Schmidt v. United States, 115 F.2d 394 (6th Cir. 1940); Atwell v.

United States, 162 F. 97 (4th Cir. 1908); United States v. Am. Med. Ass’n, 26 F.

Supp. 429 (D.D.C. 1939)). Pitch argues that, as we said in Hastings, this language

demonstrates with “certain[ty] that a court’s power to order disclosure of grand

jury records is not strictly confined to instances spelled out in the rule.” See

Hastings, 735 F.2d at 1268.

We disagree. Like the current version of Rule 6(e), the original version of

24 Case: 17-15016 Date Filed: 03/27/2020 Page: 25 of 104

the rule specified precisely when a court may “permit[] a disclosure.”11 It first

provided that grand jury matters may be disclosed to government attorneys for use

in the performance of their duties without any involvement by the court. Fed. R.

Crim. P. 6(e), 327 U.S. 827, 837 (1945). It then provided two specific

circumstances in which disclosure was permitted only when directed by the court:

first, when disclosure was sought “preliminarily to or in connection with a judicial

proceeding,” and second, “at the request of the defendant upon a showing that

grounds may exist for a motion to dismiss the indictment because of matters

occurring before the grand jury.” Id. at 838. There is nothing in the text of the rule

to indicate that the phrase “except when the court permits a disclosure” referred to

discretionary disclosures beyond those two exceptions outlined in the rule itself.

We read the Advisory Committee’s note as referring to the exceptions in the text of

11 The full text of Rule 6(e), as originally enacted, read: SECRECY OF PROCEEDINGS AND DISCLOSURE. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons. Fed. R. Crim. P. 6(e), 327 U.S. 827, 837–38 (1945). 25 Case: 17-15016 Date Filed: 03/27/2020 Page: 26 of 104

the rule.

Our understanding of the Advisory Committee’s note is consistent with the

cases cited therein. All three of the cases cited by the Advisory Committee dealt

with the question whether a defendant may interrogate the members of the grand

jury that had returned an indictment against him for the purpose of gathering

evidence to challenge the sufficiency of that indictment. See Schmidt, 115 F.2d at

395; Atwell, 162 F. at 98; Am. Med. Ass’n, 26 F. Supp. at 429. And in each of

those three cases the court exercised its discretion to determine whether and to

what extent the grand jurors’ oath of secrecy may be relaxed to permit an inquiry

into the adequacy of the indictment. See Schmidt, 115 F.2d at 397 (holding that it

is the court’s responsibility to determine whether, in its discretion, to relax the rule

of grand jury secrecy, and determining that the defendants had impermissibly

obtained affidavits from the grand jurors in violation of the grand jurors’ oath of

secrecy and without prior application to or permission from the court); Atwell, 162

F. at 99–100, 103 (weighing reasons for and against the policy of grand jury

secrecy and reversing the district court’s decision to hold a grand juror in contempt

for disclosing a grand jury witness’s testimony to the defendants, in violation of

the grand juror’s oath of secrecy); Am. Med. Ass’n, 26 F. Supp. at 430–31 (holding

that only the court may release a grand juror from his oath of secrecy, and finding

that the defendants’ bare assertions that the indictment was inadequate were 26 Case: 17-15016 Date Filed: 03/27/2020 Page: 27 of 104

insufficient to trump the “public policy demand[ing] a lasting secrecy” on the part

of the grand jurors).

The issue decided in these cases was explicitly addressed by the original

version of Rule 6(e), which provided that “a juror . . . may disclose matters

occurring before the grand jury only when . . . permitted by the court at the request

of the defendant upon a showing that grounds may exist for a motion to dismiss the

indictment because of matters occurring before the grand jury.” Fed. R. Crim. P.

6(e), 827 U.S. at 837–38. In other words, Rule 6(e) adopted the holdings of these

cases that (1) in certain circumstances, and upon a proper showing, allegations of

impropriety before the grand jury may justify relaxing the rule of grand jury

secrecy, and (2) even where such circumstances exist, a defendant must receive

authorization from the court to access any grand jury information.

We therefore think that this note, when understood in conjunction with the

cases cited, refers only to the exceptions listed in the rule that provide for when a

district court may “permit[] a disclosure.” It does not mean that a district court

may permit disclosure in other circumstances that it deems worthy.12 Understood

in this context, the Advisory Committee’s note in fact reinforces that Rule 6(e)

12 At oral argument we asked Pitch’s counsel whether there were any other pre-Rule 6 cases in which a district court had allowed the disclosure of grand jury records to the general public, as Pitch requests here. Counsel could not cite any cases in which a district court had authorized such a broad disclosure, and we have found none. 27 Case: 17-15016 Date Filed: 03/27/2020 Page: 28 of 104

codified all the instances in which a district court may authorize the disclosure of

grand jury materials. And other Advisory Committee notes underscore that Rule

6(e) is best understood as exclusive. See Fed. R. Crim. P. 6 advisory committee’s

note to 2002 amendment (“Rule 6(e) continues to spell out the general rule of

secrecy of grand-jury proceedings and the exceptions to that general rule.”

(emphasis added)).

Second, Pitch argues that the Advisory Committee explicitly recognized in

2012 that district courts possess the inherent authority to authorize the disclosure

of historically significant grand jury records. In 2012, the Advisory Committee

rejected a proposal from the Attorney General that would have amended Rule 6(e)

to explicitly provide for the disclosure of historically significant grand jury

materials. In doing so, the Committee reached a “consensus that, in the rare cases

where disclosure of historically significant materials had been sought, district

judges had reasonably resolved applications by reference to their inherent

authority.” Advisory Committee on Criminal Rules, Minutes of Apr. 22–23, 2012,

at 7, https://www.uscourts.gov/sites/default/files/fr_import/criminal-min-04-

2012.pdf.

We do not give much weight to the Committee’s decision not to recommend

an amendment to the rule, especially forty-three years after Congress had directly

28 Case: 17-15016 Date Filed: 03/27/2020 Page: 29 of 104

enacted most of the critical language itself.13 As the Supreme Court has reiterated,

“[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate

tool of statutory interpretation,” because by definition it could have had no effect

on the congressional vote. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242, 131 S. Ct.

1068, 1081 (2011) (citing District of Columbia v. Heller, 554 U.S. 570, 605, 128 S.

Ct. 2783, 2805 (2008); Jones v. United States, 526 U.S. 227, 238, 119 S. Ct. 1215,

1221 (1999); United States v. Mine Workers, 330 U.S. 258, 281–82, 67 S. Ct. 677,

690 (1947)); accord U.S. Steel Mining Co. v. Director, OWCP, 719 F.3d 1275,

1283 n.9 (11th Cir. 2013) (reasoning that a senator’s statement made two days after

enactment of a statute did not—as post-enactment legislative history—constitute

legitimate legislative history, and declining to consider it in interpreting the

statute). The same reasoning applies here to the committee’s minutes. Indeed,

even the Seventh Circuit in Carlson—which reached the opposite conclusion that

we do with respect to district courts’ inherent power to authorize disclosure of

13 Congress amended Rule 6(e) directly in 1977. See Federal Rules of Criminal Procedure Act Amendments, Pub. L. No. 95-78, 91 Stat. 319 (1977). Rule 6(e) was subsequently amended in 1979, 1983, and 1985, and was rearranged in large part in 2002 as part of the general restyling of the Federal Rules of Criminal Procedure. Non-substantive changes were also made in 2006 to accommodate the effect that the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, Title VI, § 6501(a), 118 Stat. 3760, had on Rule 6, and again in 2014 to update a citation. However, while the subsections of the rule may have changed (for example, the 2002 amendments moved certain exceptions from Rule 6(e)(3)(C) to 6(e)(3)(E), where they are now located) the relevant language for our purposes has remained substantially unchanged since 1977. 29 Case: 17-15016 Date Filed: 03/27/2020 Page: 30 of 104

grand jury materials outside Rule 6(e)—refused to give this failure to amend Rule

6(e) any weight. 837 F.3d at 765. As it correctly acknowledged, “the history of

some unsuccessful efforts to change the rules . . . is notoriously unreliable

evidence, even for those who are sympathetic to legislative history.” Id. The

Advisory Committee minutes are especially unreliable considering that they reflect

statements made not by Congress or the Supreme Court—the only institutions with

the authority to change the rule—but by a subcommittee of judges and other legal

professionals. We decline the opportunity to use such “history” to supplement the

text of Rule 6(e), which plainly permits a district court to authorize the disclosure

of grand jury materials only in the circumstances listed in Rule 6(e)(3)(E).14

14 For similar reasons, we do not believe, as our dissenting colleague does, that the Civil Rights Cold Case Records Collection Act of 2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019) (codified at 44 U.S.C. § 2107) (“Cold Case Act”)—which was enacted forty years after Congress enacted most of the relevant language of Rule 6(e) itself—prevents us from adopting the most natural interpretation of the text of Rule 6(e). See post at 76 (Rosenbaum, J., dissenting). While subsequent legislation “declaring the intent of an earlier statute” may be entitled to great weight in interpreting that statute, Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 380–81, 89 S. Ct. 1794, 1801 (1969), the Cold Case Act does not declare anything about the meaning of Rule 6(e). It simply permits the newly established Civil Rights Cold Case Records Review Board to “request the Attorney General to petition any court in the United States to release any information relevant to civil rights cold cases that is held under the injunction of secrecy of a grand jury.” Pub. L. No. 115-426 at § 8(a)(2)(A). It then provides that “a request for disclosure of civil rights cold case records under this Act shall be deemed to constitute a showing of particularized need under rule 6 of the Federal Rules of Criminal Procedure.” Id. at § 8(a)(2)(B). It says nothing about the scope of the court’s authority under Rule 6 to grant the Attorney General’s request and authorize the release of grand jury materials in a civil rights cold case. It says nothing about what Rule 6 means. Nonetheless, the dissent divines from this language that Congress must have thought that courts had the inherent authority to authorize the release of these types of grand jury materials outside the confines of Rule 6, since Rule 6(e) does not clearly permit the release of civil rights cold case records. Post at 85–86 (Rosenbaum, J., dissenting). But our task is not to discern 30 Case: 17-15016 Date Filed: 03/27/2020 Page: 31 of 104

IV.

For the foregoing reasons, we hold that Rule 6(e) is exhaustive. District

courts may only authorize the disclosure of grand jury materials if one of the five

exceptions listed in Rule 6(e)(3)(E) applies; they do not possess the inherent,

supervisory power to order the release of grand jury records in instances not

covered by the rule. We therefore overrule our holding in Hastings that district

courts have inherent power to authorize the release of grand jury materials outside

the confines of Rule 6(e).

REVERSED.

Congress’s unexpressed beliefs. It is to interpret the objective meaning of the text of Rule 6(e). Because the Cold Case Act on its face says nothing about the meaning of Rule 6(e), it is not entitled to great weight in interpreting that Rule. It certainly does not support abandoning the most natural reading of the text of Rule 6(e). 31 Case: 17-15016 Date Filed: 03/27/2020 Page: 32 of 104

WILLIAM PRYOR, Circuit Judge, joined by ED CARNES, Chief Judge, and NEWSOM, BRANCH, GRANT, TJOFLAT, and MARCUS, Circuit Judges, concurring:

I concur in the majority’s opinion, but I write separately to explain why the

result reached in In re Petition to Inspect and Copy Grand Jury Materials

(Hastings), 735 F.2d 1261 (11th Cir. 1984), was right, even though its reasoning,

which we overrule today, was wrong. In short, the “judicial proceeding” exception,

Fed. R. Crim. P. 6(e)(3)(E)(i), plainly permitted the limited disclosure of the grand

jury records to the Investigating Committee of the Judicial Council of the Eleventh

Circuit in Hastings.

In 1981, a grand jury indicted Judge Alcee L. Hastings of the United States

District Court for the Southern District of Florida for soliciting a $150,000 bribe in

return for reducing the sentences of convicted mobsters, but a federal jury

acquitted him at trial. Hastings, 735 F.2d at 1263; The Impeachment Trial of Alcee

L. Hastings (1989) U.S. District Judge, Florida, U.S. SENATE,

https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hast

ings.htm (last visited Jan. 10, 2020). Following his acquittal, “suspicions arose that

Hastings had lied and falsified evidence during the trial.” The Impeachment Trial,

supra. In response to a complaint filed by two federal judges that Hastings’ actions

violated the Code of Judicial Conduct, the Chief Judge of the Eleventh Circuit

32 Case: 17-15016 Date Filed: 03/27/2020 Page: 33 of 104

formed a five-judge Committee, 28 U.S.C. § 372(c)(4) (1982), to investigate.

Hastings, 735 F.2d at 1263–64.

During the investigation, the Committee petitioned the Southern District of

Florida for access to the grand jury records from Hastings’ criminal case. Id. at

1264. Hastings intervened to oppose the request on the ground that any disclosure

would not fall within an exception in Rule 6(e)(3). Id. Although the district court

agreed with Hastings that the request did not fall within any express exception in

Rule 6(e)(3), it concluded that Rule 6(e)(3) did not abrogate the inherent powers of

the federal courts to release grand jury information in other circumstances. Id. at

1265, 1267. So the district court relied on that purported inherent power to grant

the Committee’s petition. Id.

On appeal, every judge of our Court recused, so the Chief Justice of the

United States designated three judges from sister circuits to serve as a panel to hear

the appeal. Id. at 1265 n.3. That special panel affirmed. Id. at 1275. It decided that

the “district court’s belief that it had inherent power beyond the literal wording of

Rule 6(e) [was] amply supported.” Id. at 1268. And, it concluded “special

circumstances” existed due to the nature of the judicial investigation and the

breadth of the Committee’s authorizing statute. Id. at 1268–69.

In reaching its decision, the panel equivocated about whether the disclosure

might fall within the exception for disclosures made “preliminarily to or in 33 Case: 17-15016 Date Filed: 03/27/2020 Page: 34 of 104

connection with a judicial proceeding.” Id. at 1271 (quoting Fed. R. Crim. P.

6(e)(3)(E)(i)). The panel explained that the proceeding before the Eleventh Circuit

Judicial Council and its investigatory Committee was plainly a “judicial inquiry”

based on the composition of the Council and Committee and the statutory

protections afforded the accused. Id. at 1271–72. But it doubted whether the

proceeding satisfied the definition of “judicial proceeding” first articulated by

Judge Learned Hand. Id. (“[A] judicial proceeding . . . includes any proceeding

determinable by a court.” (quoting Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir.

1958)). In the end, the panel affirmed the disclosure in part because the proceeding

was at least “closely akin” to a judicial proceeding, even if it was not “a judicial

proceeding in the strict legal sense” of the term. Id. at 1272.

After a three-year investigation, which included “hearing testimony from

over 100 witnesses and receiving approximately 2800 exhibits,” the Committee

concluded in a report to the Judicial Council that Hastings solicited a monetary

bribe, committed perjury, and tampered with evidence. Alan I. Baron, The Curious

Case of Alcee Hastings, 19 Nova L. Rev. 873, 874 (1995); see also The

Impeachment Trial, supra. The Judicial Council then referred the complaint to the

Judicial Conference of the United States, which “concurred in the Council’s

assessment that . . . impeachment may be warranted” and “certified this

34 Case: 17-15016 Date Filed: 03/27/2020 Page: 35 of 104

determination to the House of Representatives.” Hastings v. Judicial Conference of

U.S., 829 F.2d 91, 93 (D.C. Cir. 1987).

The House approved 17 articles of impeachment, and the Senate convicted

Hastings on 8 articles. The Impeachment Trial, supra. President pro tempore

Robert C. Byrd ordered Hastings removed from office but did not disqualify

Hastings from holding future office. Id. Indeed, Hastings currently serves as a

United States Representative from Florida. Id.

In my view, the Hastings panel had no reason to doubt whether the judicial-

proceeding exception applied. The disclosure of the grand jury records was plainly

“in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i). That is,

Hastings reached the right result, even if for the wrong reason.

Consider first the ordinary meaning of the term “judicial proceeding.” When

Rule 6(e)(3)(E)(i) was adopted, Black’s Law Dictionary defined “judicial

proceeding” as “any proceeding wherein judicial action is invoked and taken.”

Judicial Proceeding, Black’s Law Dictionary (4th ed. 1951). It in turn defined

“judicial action” to include “the investigation and determination of . . . facts”

“[w]hen an inferior officer or board is charged with an administrative act, the

performance of which depends upon and requires the existence or ascertainment of

facts.” Judicial Action, Black’s Law Dictionary (4th ed. 1951) (“An adjudication

upon rights of parties who in general appear or are brought before tribunal by 35 Case: 17-15016 Date Filed: 03/27/2020 Page: 36 of 104

notice or process, and upon whose claims some decision or judgment is

rendered. . . . Action of a court upon a cause, by hearing it, and determining what

shall be adjudged or decreed between the parties, and with which is the right of the

case.”); see also Judicial Proceeding, Black’s Law Dictionary (11th ed. 2019)

(“Any court proceeding; any proceeding initiated to procure an order or decree,

whether in law or in equity.”). Indeed, courts have long given “[t]he term judicial

proceeding . . . a broad interpretation.” In re Sealed Motion, 880 F.2d 1367, 1379–

80 (D.C. Cir. 1989) (collecting cases); see also In re In re Comm. on the Judiciary,

U.S. House of Representatives, No. 19-5288, 2020 WL 1149883, at *1, 5 (D.C.

Cir. Mar. 10, 2020) (citing In re Sealed Motion to support conclusion that an

impeachment proceeding qualifies as a “judicial proceeding” within the meaning

of Rule 6(e)(3)(E)(i)). Predating the passage of Rule 6, some courts defined

“judicial proceedings” “as proceedings before a court or a judge.” Lybrand v. The

State Co., 184 S.E. 580, 583 (S.C. 1936); see also Campbell v. N.Y. Evening Post,

Inc., 157 N.E. 153, 155 (N.Y. 1927). And soon after the passage of Rule 6, courts

continued to explain that “[t]he term judicial proceeding is not restricted to trials,

but includes every proceeding of a judicial nature before a court or official clothed

with judicial or quasi judicial power.” Richeson v. Kessler, 255 P.2d 707, 709

(Idaho 1953); accord Jarman v. Offutt, 80 S.E.2d 248, 251 (N.C. 1954); Quasi

Judicial, Black’s Law Dictionary (4th ed. 1951) (“A term applied to the action, 36 Case: 17-15016 Date Filed: 03/27/2020 Page: 37 of 104

discretion, etc., of public administrative officers, who are required to investigate

facts, or ascertain the existence of facts, and draw conclusions from them, as a

basis for their official action, and to exercise discretion of a judicial nature.”).

Consider next the Judicial Conduct and Disability Act of 1980, which

governed the complaint against Hastings. The Act required the chief judge of each

circuit to form a Judicial Council to oversee the administration of justice within the

circuit, including the review of ethics complaints against judges. See 28 U.S.C.

§§ 332(a)(1), (d), 372(c)(6) (1982). The Judicial Council consisted solely of

Article III judges who were statutorily “authorized to hold hearings, to take sworn

testimony, and to issue subpoenas.” Id. § 332 (a)(4), (d)(1). The Act required the

chief judge of a circuit where a complaint against a judge was filed to review the

complaint and take one of three actions. He could by “written order stating his

reasons” either “dismiss the complaint” or “conclude the proceeding.” Id.

§ 372(c)(3). Both the complainant and the accused judge could petition the Judicial

Council for review of that decision if desired. Id. § 372(c)(10). Otherwise, the Act

required the chief judge to create a special committee, again composed of only

federal judges, to investigate the complaint. Id. § 372(c)(4). The Committee then

conducted as “extensive” an investigation “as it consider[ed] necessary” and, like

the Judicial Council, had full subpoena powers. Id. § 372(c)(5), (c)(9)(A).

37 Case: 17-15016 Date Filed: 03/27/2020 Page: 38 of 104

The Act provided rights to the accused judge and complainant and required

specific procedures for every investigation. The accused judge was entitled to

receive written notice of the investigation, to appear in person or by counsel before

the Committee, to submit written briefing, “to present oral and documentary

evidence, to compel the attendance of witnesses or the production of documents,

[and] to cross-examine witnesses.” Id. § 372(c)(4)(C), (c)(11). A complainant also

was entitled to appear before the Committee if he “could offer substantial

information.” Id. § 372(c)(11)(C). The statute provided for mileage allowance and

witness fees paid out of the funds appropriated for the courts and commensurate

with the rate provided for witnesses appearing in federal court. 28 U.S.C.

§ 604(h)(1) (1982); id. § 1821. After the Committee completed its investigation, it

was required to draft a report containing “the findings of the investigation and the

committee’s recommendations for necessary and appropriate action.” Id.

§ 372(c)(5). The Committee then forwarded its report to the Judicial Council. Id.

The Judicial Council acted as the decisionmaker on the complaint. It

reviewed the Committee’s report and recommendation, and it could also conduct

additional investigation, including holding hearings. Id. §§ 332(d)(1),

372(c)(6)(A). The Act then empowered the Judicial Council to take several

different actions, including “censuring or reprimanding” the accused judge and

certifying the matter to the Judicial Conference to determine whether the judge 38 Case: 17-15016 Date Filed: 03/27/2020 Page: 39 of 104

should be referred to Congress for impeachment. Id. at § 372(c)(6), (c)(7). Any

“written order to implement any action . . . by a judicial council . . . [had to] be

made available to the public through the appropriate clerk’s office of the court of

appeals.” Id. § 372(c)(15). And ordinarily “each such order” was “accompanied by

written reasons.” Id. In any event, the Judicial Council was required to provide

“written notice” of any decision to both the complainant and the accused judge. Id.

§ 372(c)(6)(C), (c)(7)(C). Any complainant or judge “aggrieved by” the action

could petition for review by the Judicial Conference of the United States, id.

§ 372(c)(10), which was composed of the Chief Justice, the chief judge of each

circuit, and one district judge of each circuit, id. § 331. In sum, the proceedings

included the taking of evidence and ordinarily culminated in a publicly available

written order that affected the rights of the accused judge and that was appealable

to the Judicial Conference.

The ordinary meaning of “judicial proceeding” plainly included the process

required by the Judicial Conduct and Disability Act. Once a complaint was

forwarded to a special investigating committee, federal judges had to investigate,

preside, find facts, and issue orders that affected the accused’s rights. See Lybrand,

184 S.E. at 583 (defining “judicial proceedings” “as proceedings before a court or

a judge”); Campbell, 157 N.E. at 155 (same); Richeson, 255 P.2d at 709 (defining

a “judicial proceeding” as “every proceeding of a judicial nature before a court or 39 Case: 17-15016 Date Filed: 03/27/2020 Page: 40 of 104

official clothed with judicial or quasi judicial power”); Jarman, 80 S.E.2d at 251

(same). The accused judge was afforded the opportunity to present evidence and

argument. The complainant and the accused judge could petition for review of the

Judicial Council’s order, which was ordinarily public and accompanied by written

reasons. See Judicial Action, Black’s Law Dictionary (4th ed. 1951) (“An

adjudication upon rights of parties who in general appear or are brought before

tribunal by notice or process, and upon whose claims some decision or judgment is

rendered. . . . Action of a court upon a cause, by hearing it . . . .”). So the

misconduct proceedings in Hastings bore all the hallmarks of a “judicial

proceeding.”

The definition provided by Judge Hand in Doe also covered the proceeding

in Hastings, despite the special panel’s doubts. See Hastings, 735 F.2d at 1271.

Judge Hand defined “judicial proceeding” as including “any proceeding

determinable by a court, having for its object the compliance of any person, subject

to judicial control, with standards imposed upon his conduct in the public interest,

even though such compliance is enforced without the procedure applicable to the

punishment of crime.” Doe, 255 F.2d at 120. Judge Hand stressed that a narrower

interpretation of “judicial proceeding” “would not only be in the teeth of the

language employed, but would defeat any rational purpose that can be imputed to”

the judicial-proceeding exception of Rule 6. Id. The Judicial Council, composed of 40 Case: 17-15016 Date Filed: 03/27/2020 Page: 41 of 104

federal judges, is “[a]n organ of the government, belonging to the judicial

department, whose function is the application of the laws to controversies brought

before it and the public administration of justice.” Court, Black’s Law Dictionary

(4th ed. 1951). And the purpose of review of the complaint by the Judicial Council

was to assure Hastings had not “engaged in conduct prejudicial to the effective and

expeditious administration of the business of the courts” or in violation of either

the Constitution or the Code of Judicial Conduct. See 28 U.S.C. § 372(c)(1),

(c)(7)(B)(i); Hastings, 735 F.2d at 1263. So that “proceeding determinable by a

court ha[d] for its object the compliance of” judges with “standards imposed . . . in

the public interest.” Doe, 255 F.2d at 120.

The proceeding in Hastings also qualified as a “judicial proceeding” under

Supreme Court precedent. The Supreme Court has explained that “judicial

proceedings” are proceedings that call upon a court “to investigate, declare, and

enforce ‘liabilities as they [stand] on present or past facts and under laws supposed

already to exist.’” D.C. Court of Appeals v. Feldman, 460 U.S. 462, 479 (1983)

(quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908)). The

adjudication of a “present right” is “the essence of a judicial proceeding.” Id. at

481. “The form of the proceeding is not significant” in evaluating whether a

proceeding is judicial. In re Summers, 325 U.S. 561, 567 (1945). “It is the nature

and effect which is controlling.” Id. Indeed, the Court found a state supreme 41 Case: 17-15016 Date Filed: 03/27/2020 Page: 42 of 104

court’s proceeding on a bar petition “judicial,” even though the state court had “not

treated [the proceeding] as judicial” and its clerk had not “enter[ed] [the

proceeding] in the file, on a docket, or on a judgment roll.” Id. at 563, 567. That

the state court considered the petition “on its merits” and “passed an order which

[was] validated by the signature of the presiding officer” sufficed to make the

proceeding “judicial.” Id. at 567–68. Similarly, the Court found a D.C. Circuit

proceeding on a bar petition “judicial” even though the petitioner failed to “cite

case authority” or “make any explicitly legal contentions.” Feldman, 460 U.S. at

481. The D.C. Circuit “consider[ed] policy and equitable arguments” in evaluating

the petition, which is “essentially [a] judicial inquir[y].” Id.

The process in Hastings offered “the essence of a judicial proceeding”

despite the fact that it did not “assume the form commonly associated with judicial

proceedings.” Id. at 481–82. When reviewing the complaint, the Council was

required to consider policy, the Code of Judicial Conduct, and the “good

Behaviour” requirement of Article III, U.S. Const. art III, § 1. That is, it was

required to evaluate the complaint “on [the] merits,” Summers, 325 U.S. at 567,

and “on present or past facts and under laws [or policies] supposed already to

exist,” Feldman, 460 U.S. at 479 (internal quotation marks omitted). The Council

was then required to issue an order on the complaint that would affect Hastings’

“present right[s],” id., by possibly requesting he voluntarily retire, temporarily 42 Case: 17-15016 Date Filed: 03/27/2020 Page: 43 of 104

ordering that no other cases be assigned to him, censuring or reprimanding him, or

recommending him to the Judicial Conference for impeachment consideration. 28

U.S.C. § 372(c)(6)(B), (c)(7)(B). And because the disclosure of the grand jury

materials in Hastings was for use in the misconduct proceeding, the disclosure was

plainly “in connection with a judicial proceeding.” United States v. Baggott, 463

U.S. 476, 479–80 (1983) (approving the “sensibl[e] understand[ing of] the term ‘in

connection with,’ [as] refer[ring] to a judicial proceeding already pending” where

“the primary purpose of disclosure is . . . to assist in . . . conduct[ing] a judicial

proceeding”).

Our sister circuit has concluded that certain proceedings by the Fifth Circuit

Judicial Council are “judicial in nature.” In re McBryde, 117 F.3d 208, 221 (5th

Cir. 1997). In that case, the Chief Judge of the Northern District of Texas

reassigned two cases from another district judge to himself. Id. at 215. That district

judge disagreed with the reassignment and requested review by the Fifth Circuit

Judicial Council by filing a complaint under the Judicial Conduct and Disability

Act of 1980—the same proceedings as those initiated in Hastings. Id. at 217, 227.

The Chief Judge of the Fifth Circuit referred the matter to a special investigatory

committee, which held a hearing, heard testimony, and took evidence. Id. at 217.

After the committee forwarded its report and recommendation, the Judicial Council

concluded the reassignments were warranted and issued an order reassigning the 43 Case: 17-15016 Date Filed: 03/27/2020 Page: 44 of 104

cases. Id. The district judge petitioned the Fifth Circuit for a writ of mandamus

preventing the reassignment. Id. at 219. The Fifth Circuit was then confronted with

the question whether it could issue a preemptory writ to the Judicial Council. Id. It

examined whether the Judicial Council should be viewed “as an administrative

body subservient to the judiciary,” which would then allow it to review the order

on mandamus. Id. at 220.

The Fifth Circuit acknowledged that the Judicial Council acts in an

administrative capacity in some circumstances but concluded that “it acted as a

court in this case.” Id. at 221 (citing Feldman, 460 U.S. at 477). That the Judicial

Council took sworn testimony, examined records, and issued its order “because of

alleged misconduct,” supported that these proceedings were “judicial in nature.”

Id. Because the proceeding was not “administrative,” it could not issue a writ to the

Judicial Council. Id. (stopping short of definitively calling the Judicial Council a

“judicial body” because that question only mattered if the parties sought relief

from the Supreme Court); cf. Chandler v. Judicial Council of Tenth Cir. of the

U.S., 398 U.S. 74, 102–03 (1970) (Harlan, J., concurring) (“[A]t least in the

issuance of orders to district judges to regulate the exercise of their official duties,

the Judicial Council acts as a judicial tribunal for purposes of this Court’s appellate

jurisdiction under Article III. . . . [There is] no doubt that the Councils’ architects

44 Case: 17-15016 Date Filed: 03/27/2020 Page: 45 of 104

regarded the authority granted the Councils as closely bound up with the process of

judging itself.”).

Several of our sister circuits’ decisions that attorney disciplinary proceedings

can be “judicial proceedings” within the meaning of Rule 6(e)(3)(E)(i) also support

the result in Hastings. So long as there is substantial judicial involvement in the

process, like the disciplinary proceedings being held before a judicial tribunal, our

sister circuits have concluded that these disciplinary proceedings are “preliminarily

to or in connection with a judicial proceeding.” See In re Grand Jury 89-4-72, 932

F.2d 481, 485–86 (6th Cir. 1991); In re Fed. Grand Jury Proceedings, 760 F.2d

436, 438–39 (2d Cir. 1985); In re Barker, 741 F.2d 250, 254–55 (9th Cir. 1984);

United States v. Bates, 627 F.2d 349, 351 (D.C. Cir. 1980); Doe, 255 F.2d at 120.

We too have said in dicta that we agree that “proceedings to discipline attorneys

where bar committees act as an arm of the court are part of judicial proceedings

because this function has been assigned to the judiciary from time immemorial.” In

re J. Ray McDermott & Co., 622 F.2d 166, 170–71 (5th Cir. 1980) (holding

disclosure of grand jury records to the Federal Energy Regulatory Commission

impermissible because the hearings before the Commission were not “closely tied

to” a judicial proceeding).

In short, there is no reason to distinguish judicial disciplinary proceedings

from those of attorney disciplinary proceedings or from the decision in McBryde 45 Case: 17-15016 Date Filed: 03/27/2020 Page: 46 of 104

calling these proceedings “judicial in nature.” The disclosure of grand jury

documents in Hastings was plainly “in connection with a judicial proceeding,” so

the result in Hastings, although not its reasoning, was right.

46 Case: 17-15016 Date Filed: 03/27/2020 Page: 47 of 104

JORDAN, Circuit Judge, concurring in the judgment:

This is a difficult case, as illustrated by the circuit split on the issue. I agree

with the court that the better view is that the exceptions set out in Rule 6(e) to the

general requirement of grand jury secrecy are exclusive. See Carlson v. United

States, 837 F.3d 753, 769–70 (7th Cir. 2016) (Sykes, J., dissenting); McKeever v.

Barr, 920 F.3d 842, 844–49 (D.C. Cir. 2019). “Inherent authority” is not available

to create additional exceptions because “the exercise of an inherent power cannot be

contrary to any express grant of or limitation on the district court’s power contained

in a rule or statute.” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (citations

omitted). I therefore concur in the judgment.

I write separately for two reasons. First, it seems to me that the concept of

grand jury secrecy is not as neat as the court suggests. Second, given the circuit

split, I encourage the Judicial Conference’s Advisory Committee on Criminal Rules

to address whether Rule 6(e) should be amended to permit the disclosure of grand

jury materials for matters of exceptional historical significance.

*******

As the court recognizes, the rule of grand jury secrecy is firmly entrenched in

our criminal justice system. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441

U.S. 211, 218 n.9 (1979). The court identifies five oft-cited reasons animating the

need for secrecy: (1) to prevent the escape of the accused whose indictment might 47 Case: 17-15016 Date Filed: 03/27/2020 Page: 48 of 104

be contemplated; (2) to ensure the utmost freedom to grand jury deliberations and

prevent tampering with jurors; (3) to prevent perjury or tampering with witnesses;

(4) to encourage free sharing of information from people who may have knowledge

of a crime; and (5) to protect an innocent accused who is exonerated. See Maj. Op.

at 10–11 (quoting Douglas Oil, 441 U.S. at 219 n.10). This list—which was

“summarized” from decades of case law and treatises on the subject—glosses over

the evolution in thinking about the reasons for grand jury secrecy and does not tell

the whole story about the federal judiciary’s approach to secrecy before the adoption

of the Federal Rules of Criminal Procedure.

From its inception in England, the rule of secrecy appears to have functioned

to secure the grand jury’s independence from the crown. See Richard Calkins, The

Fading Myth of Grand Jury Secrecy, 1 J. Marshall J. Prac. & Proc. 18, 18–19 (1967).

As the grand jury continued to evolve in England, the secrecy component became

seen as a means to prevent escape by suspected criminals. See George Edwards, Jr.,

The Grand Jury 116 (1906) [Legal Classics Library ed. 2003]. See also Mark

Kadish, Behind the Locked Doors of an American Grand Jury: Its History, its

Secrecy, and its Process, 24 FL. ST. U. L. REV. 1, 13 (1996) (explaining that, during

the grand jury’s beginnings in England, secrecy was part of the process in order to

prevent escape by offenders). In the early days of the republic, American and

English commentators alike held “many diverse views” regarding the reasons for 48 Case: 17-15016 Date Filed: 03/27/2020 Page: 49 of 104

secrecy, while others attacked these views and the need for grand jury secrecy more

generally. See Edwards, The Grand Jury, at 116 & nn.80–83. One late 1800s

American commentator focused on two prominent reasons for secrecy, while

criticizing the concept: to give the government a proper advantage in conducting its

investigation, and to provide grand jurors freedom from fear or restraint. See Eugene

Stevenson, Our Grand Jury System, 8 Crim. L. Mag. & Rep. 711, 720 (1886). By

the early twentieth century, many courts had already begun to recite the full set of

traditional justifications for secrecy later set out in Douglas Oil. See, e.g., Schmidt

v. United States, 115 F.2d 394, 396–97 (6th Cir. 1940) (citing United States v.

Amazon Chem. Corp., D.C., 55 F.2d 254, 261 (D. Md. 1931)).

Whatever the reasons for secrecy in the pre-Rules era, when the grand jury’s

functions had concluded courts had the authority to disclose materials “where the

ends of justice require[d] it.” United States v. Socony-Vacuum Oil Co., 310 U.S.

150, 234 (1940) (citation omitted). Courts facing the question of whether to disclose

grand jury materials looked to the specific circumstances before them to determine

whether the need for secrecy had dissipated. For example, several pre-Rules cases

concluded that the need for secrecy was lessened after the grand jury had made its

presentment and indictment, the indictment had been made public, the grand jury

had been discharged, and/or the accused was in custody. See Atwell v. United States,

162 F. 97, 99–101 (4th Cir. 1908) (holding that the rule of secrecy did not preclude 49 Case: 17-15016 Date Filed: 03/27/2020 Page: 50 of 104

a grand juror, post-indictment, from disclosing evidence presented to the grand jury);

Metzler v. United States, 64 F.2d 206 (9th Cir. 1923) (allowing an assistant U.S.

attorney present at the grand jury to read in evidence at trial from shorthand notes

taken at the proceedings because “[a]fter the indictment has been found and made

public and the defendants apprehended, the policy of the law does not require the

same secrecy as before”) (citations omitted); In re Grand Jury Proceedings, 4 F.

Supp. 283, 285 (E.D. Pa. 1933) (“The fact that the grand jury has adjourned and been

discharged has often been considered as one reason for abandoning secrecy as to its

deliberations.”). In these cases, concerns about an escaping offender or tampering

with jurors and witnesses were no longer at issue.

Likewise, other pre-Rules cases involving challenges to the evidence

supporting an indictment concluded that it would be proper to relax the rule of

secrecy to prevent abuses in the grand jury proceeding itself. See Murdick v. United

States, 15 F.2d 965, 967–68 (8th Cir. 1926) (“There is no divinity surrounding [the

grand jury’s] action, and the court has the right to go behind the secrecy imposed

upon a grand jury as to its proceedings, where the interests of justice demand it.”);

United States v. Byoir, 147 F.2d 336, 336–37 (5th Cir. 1945) (acknowledging that a

court “had discretionary authority to permit disclosure of what happened before the

grand jury when necessary to advance the cause of justice,” and affirming an order

allowing the defendant to examine grand jury minutes related to evidence as to him, 50 Case: 17-15016 Date Filed: 03/27/2020 Page: 51 of 104

and relieving the stenographer of his secrecy obligation to allow him to testify before

the court); McKinney v. United States, 199 F. 25, 27 (8th Cir. 1912) (noting that

“doubtless in extreme instances a court may do what is needful to prevent clear

injustice or an abuse of judicial process” at the grand jury stage). Indictments had

already been returned in these cases, so again concerns such as protecting innocent

and/or exonerated accused persons were naturally not relevant and did not support

maintaining the veil of secrecy.

Consistent with this circumstance-specific approach, even when courts in the

pre-Rules era determined that disclosure was appropriate, they recognized

distinctions among the types of materials sought to be obtained, and the policy

reasons to afford greater secrecy to some kinds of records and information (e.g.,

juror discussions and votes). In the words of one court, “infinite secrecy” might be

desired for discussions and votes of individual jurors to protect them from the “the

malice and consequent injury growing out of his neighbor’s knowledge that he had

advocated or voted for a presentment against him.” Atwell, 162 F. at 100. See also

United States v. Farrington, 5 F. 343, 347 (N.D.N.Y. 1881) (“[W]henever it

becomes essential to ascertain what has transpired before a grand jury it may be

shown, no matter by whom; and the only limitation is that it may not be shown how

the individual jurors voted or what they said during their investigations . . . because

this cannot serve any of the purposes of justice.”) (citations omitted); McKinney, 199 51 Case: 17-15016 Date Filed: 03/27/2020 Page: 52 of 104

F. at 38 (Sanborn, J., dissenting) (“[T]he modern and the true rule is that the veil of

secrecy may be removed from all the proceedings before the grand jury, except the

votes and sayings of the grand jurors . . . .”) (citations omitted).

The guidepost for disclosure in each of these pre-Rules cases was only

whether the ends of justice would be furthered. See Metzler, 64 F.2d at 206; In re

Grand Jury Proceedings, 4 F. Supp. at 285. At least one circuit court—somewhat

inverting the default—said that secrecy should be maintained “[t]o the full extent

necessary to fulfill the ends of justice, and no further.” Atwell, 162 F. at 100. This

broad standard gave courts substantial discretion to decide whether disclosure was

appropriate after weighing the need for secrecy against competing concerns.

In 2012, the Advisory Committee on Criminal Rules decided not to proceed

with a proposal from then–Attorney General Eric Holder to amend to Rule 6(e) to

allow disclosure for historically significant grand jury materials. See Judicial

Conference Committee on Rules of Practice and Procedure Minutes, June 11–12,

2012, at 44. See also Summary of the Report of the Judicial Conference Committee

on Rules of Practice and Procedure, Sept. 2012, at 32–33. The proposal was not

rejected out of the concern the majority hints at—that it would be difficult to

determine when something was “so ‘historically significant’ that the interest in

disclosure outweighs the interest of that the grand jurors, witnesses, and future 52 Case: 17-15016 Date Filed: 03/27/2020 Page: 53 of 104

generations, among others, have in maintaining the secrecy of the proceedings.” See

Maj. Op. 19 n.9. On the contrary, the Advisory Committee believed that amendment

of Rule 6 “would be premature” and that “district judges had reasonably resolved”

applications for disclosure on these grounds. See Summary of the Report of the

Judicial Conference Committee on Rules of Practice and Procedure, Sept. 2012, at

33.1

Although the Advisory Committee deemed Attorney General Holder’s

proposed amendment unnecessary, its determination implicitly contemplated that a

historical importance exception might be ripe for consideration at some future date.

Given the current circuit split and the Supreme Court’s recent denial of certiorari on

the issue, see McKeever v. Barr, No. 19-307, 2020 WL 283746 (U.S. Jan. 21, 2020),

it appears that day is upon us. See id. at *1 (Breyer, J., respecting the denial of

certiorari) (noting that this is an “important question” that the Rules Committee “can

and should revisit”). I therefore urge the Advisory Committee on Criminal Rules to

1 A copy of Attorney General Holder’s proposal is attached as an appendix to the Court’s opinion. The proposed amendment would permit disclosure of grand jury materials of exceptional historical significance that are at least 30 years old and that have become part of the permanent records of the National Archives under 44 U.S.C. § 2107. See Letter from Attorney General Eric Holder to Judge Reena Raggi, Chair of the Judicial Conference’s Advisory Committee on Criminal Rules, Oct. 18, 2011, at 6–8, 6 n.3. As to cases at least 30 years old, the proposed amendment would authorize district courts to determine whether disclosure is warranted on a case-by-case basis. See id. at 6–8. Records 75 years or older would become available to the public under the same standards applicable to other records in the National Archives. See id. at 6, 8 (citation omitted). 53 Case: 17-15016 Date Filed: 03/27/2020 Page: 54 of 104

consider whether Rule 6(e) should be amended to permit the disclosure of grand jury

materials for matters of exceptional historical significance and, if so, under what

circumstances.2

With these thoughts, I concur in the judgment.

2 Ms. Pitch’s motion for leave to file a supplemental brief suggests that an amendment to Rule 6 indeed may be the only way of obtaining the grand jury records. Congress has provided a means to access materials like the Moore’s Ford Lynching grand jury records in the Civil Rights Cold Case Records Collection Act of 2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019) (codified at 44 U.S.C. § 2107 note). But according to Ms. Pitch, apparently there have not been any congressional appropriations. Nor have there been any appointments to the Review Board charged with evaluating petitions under the Act. 54 Case: 17-15016 Date Filed: 03/27/2020 Page: 55 of 104

WILSON, Circuit Judge, joined by MARTIN, as to Parts II and III, and JILL PRYOR, Circuit Judges, dissenting:

For nearly 40 years, our precedent has been consistent with both history and

the text of Rule 6(e). It has been the law in this Circuit that district courts have

inherent authority to order the disclosure of sealed grand jury materials outside of

Rule 6(e)’s list of enumerated exceptions. We previously stated:

Although Rule 6(e)(3) enumerates the exceptions to the traditional rule of grand jury secrecy, the Supreme Court and this Court have recognized that the district courts have inherent power beyond the literal wording of Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3) is but declaratory of that authority.

United States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir. 2004) (citing

Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 398–99 (1959)).

The fountainhead for this precedent in our Circuit is In re Petition to

Inspect and Copy Grand Jury Materials, where we held that “a petition by a

judicial investigating committee presents one of the occasions when a district

court may act outside the strict bounds of Rule 6(e), in reliance upon its

historic supervisory power.” 735 F.2d 1261, 1273 (11th Cir. 1984)

[hereinafter Hastings]. 1 Our reasoning in Hastings has been adopted by two

1 Before our decision in Hastings, the Second Circuit reached the same conclusion in In re Biaggi, 478 F.2d 489, 490–94 (2d Cir. 1973) (holding that—despite Rule 6(e)’s enumerated exceptions—grand jury secrecy is not absolute and therefore, “under the special circumstances” of that case, disclosure was to the public’s benefit and would not undermine the values protected by the “rule of secrecy”). 55 Case: 17-15016 Date Filed: 03/27/2020 Page: 56 of 104

other circuits. See, e.g., Carlson v. United States, 837 F.3d 753, 766 (7th Cir.

2016); In re Petition of Craig, 131 F.3d 99, 103 (2d Cir. 1997).2

Today, we do an about-face and hold that “Rule 6(e) is exhaustive.”

Majority Op. at 4, 31. Now, “[d]istrict courts may only authorize the

disclosure of grand jury materials if one of the five exceptions listed in Rule

6(e)(3)(E) applies; they do not possess the inherent, supervisory authority to

order the release of grand jury records in instances not covered by the rule.”

Id. at 30.

I dissent for two reasons.

First, this case does not justify an abrupt departure from several

decades of settled Eleventh Circuit precedent, especially to overrule a district

judge’s well-reasoned decision relying on that precedent.

“[N]o judicial system could do society’s work if it eyed each issue afresh in

every case that raised it.” Chicago Truck Drivers, Helpers & Warehouse Union

(Indep.) Pension Fund v. Steinberg, 32 F.3d 269, 272 (7th Cir. 1994). “Indeed, the

2 Two additional circuits—the First and the Tenth—have acknowledged that district courts may release grand jury materials outside Rule 6(e)’s enumerated exceptions. See In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st Cir. 2005) (holding that Rule 6(e)’s “phrasing can, and should, accommodate rare exceptions premised on inherent judicial power” and endorsing our holding in Aisenberg); In re Special Grand Jury 89-2, 450 F.3d 1159, 1178–79 (10th Cir. 2006) (recognizing that there is “substantial support” for the notion that courts may order disclosure using their “inherent authority,” even when Rule 6(e) does not apply). 56 Case: 17-15016 Date Filed: 03/27/2020 Page: 57 of 104

very concept of the rule of law underlying our own Constitution requires such

continuity over time that a respect for precedent is, by definition, indispensable.”

United States v. Aman, 31 F.3d 550, 554 (7th Cir. 1994).

That is not to say that this Court lacks the authority to revisit prior precedent

in a case of exceptional importance when the “prior judicial ruling should come to

be seen so clearly as error that its enforcement was for that very reason doomed.”

Id. But, there is a high bar for en banc review. It “is not favored,” and will

ordinarily not be conducted unless it is necessary to resolve an intra-Circuit split or

“involves a question of exceptional importance.” Fed. R. App. P. 35(a). This

appeal falls into neither category.

The majority says times have changed, and it interprets the rule

differently now. But our precedent should not zigzag back and forth based on

the outcome of each case. Moreover, release of grand jury materials is not an

everyday occurrence—before this case, district courts in the Eleventh Circuit

had only unsealed grand jury transcripts, over an objection, twice since the

Court was established in 1981.3 See Aisenberg, 358 F.3d at 1331; Hastings,

735 F.2d at 1264–65, 1275. And if a district judge abuses that authority, there

3 Moreover, the Department of Justice has admitted that, nationwide, the use of inherent authority to disclose grand jury records has been “rare.” See Advisory Comm. on Crim. Rules, Agenda Book 223 (Apr. 2012). 57 Case: 17-15016 Date Filed: 03/27/2020 Page: 58 of 104

is a safeguard—the exercise of that discretion is subject to our review. See

Aisenberg, 358 F.3d at 1350–52.

In short, while the underlying circumstances in this case were

exceptional, the underlying opinion was not. Therefore, I would maintain our

long-standing precedent permitting district judges to exercise their inherent

supervisory authority to unseal grand jury records “in an appropriate factual

situation.” See Hastings, 735 F.2d at 1272.

More importantly, I dissent because we correctly interpreted the text of

Rule 6(e) the first time around, and the second. I advance this argument in

three parts. First, our decision in Hastings was in line with the common-law

tradition of courts exercising their inherent authority to disclose grand jury

materials in circumstances both “mundane” and “weighty.” See Carlson, 837

F.3d at 762. Second, Hastings was in harmony with the Federal Rules of

Criminal Procedure because Rule 6(e) did not eliminate the inherent authority

of district courts to disclose grand jury materials in extraordinary

circumstances. And third, Rule 6(e)’s history further demonstrates that the

rule did not and does not abrogate district courts’ authority to disclose grand

jury materials.

58 Case: 17-15016 Date Filed: 03/27/2020 Page: 59 of 104

District courts have limited inherent power to supervise grand jury

proceedings; the existence of that power is supported by its history and use.

Before the advent of the Federal Rules of Criminal Procedure, there was no

question as to whether district courts had discretion to relax the traditional rule of

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

Supreme Court said as much: “Grand jury testimony is ordinarily confidential. But

after the grand jury’s functions are ended, disclosure is wholly proper where the

ends of justice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150,

233–34 (1940) (citation omitted).

It is true that grand juries are functionally independent from district courts,

but they remain “an arm of the court,” Levine v. United States, 362 U.S. 610, 617

(1960), and operate “under general instructions from the court[s] to which [they

are] attached,” Cobbledick v. United States, 309 U.S. 323, 327 (1940); see also In

re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 680 n.4 (8th Cir. 1986)

(stating that the grand jury “acts under the inherent supervision of the court”). 4 For

4 I use the phrase “functionally independent” advisedly, because the Supreme Court has recognized that the grand jury has a degree of independence from courts. However, the Court has not decided the extent of that independence. Compare Levine, 362 U.S. at 617 (“The grand jury is an arm of the court . . . . The Constitution itself makes the grand jury a part of the judicial process.”) (citation omitted) (internal quotation mark omitted), with United States v. Williams, 504 U.S. 36, 47 (1992) (“Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length.”). As I explain infra, this functional 59 Case: 17-15016 Date Filed: 03/27/2020 Page: 60 of 104

example, though the grand jury “must initiate prosecution for . . . federal crimes,”

it “does so under general instructions from the court,” and “from time to time, it

reports its findings” to the court. Cobbledick, 309 U.S. at 327. Furthermore, to

subpoena a witness, a grand jury may appeal “to the court under whose aegis the

grand jury sits.” Levine, 362 U.S. at 617. And several courts have recognized that

grand jury records are court records. See Carlson, 837 F.3d at 758 (“Because the

grand jury is part of the judicial process, its minutes and transcripts are necessarily

records of the court.” (citation omitted) (internal quotation marks omitted));

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

“[g]rand jury materials are records of the district court”); In re Grand Jury

Investigation of Cuisinarts, Inc., 665 F.2d 24, 31 (2d Cir. 1981) (same); United

States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (same); see also United

States v. Procter & Gamble Co., 356 U.S. 677, 685 (1958) (Whittaker, J.,

concurring).

To be sure, a court’s inherent supervisory power over grand juries is “very

limited” and “not remotely comparable to the power” that a court maintains over

its own proceedings. Williams, 504 U.S. at 50. Grand juries’ functional

independence prevents “judicial reshaping of the grand jury institution.” Id.

independence means, at a minimum, that courts’ inherent supervisory power over grand juries is limited in nature. See Williams, 504 U.S. at 50. 60 Case: 17-15016 Date Filed: 03/27/2020 Page: 61 of 104

Therefore, courts’ supervisory power is used to “preserve or enhance the

traditional functioning of the grand jury.” Carlson, 837 F.3d at 762 (internal

quotation mark omitted).

Within the inherent supervisory power of district courts is “the discretion to

determine when otherwise secret grand-jury materials may be disclosed.” Id.

Though grand juries are subject to a general rule of secrecy, that secrecy has never

been absolute. See Michael A. Foster, Cong. Research Serv., R45456, Federal

Grand Jury Secrecy: Legal Principles and Implications for Congressional

Oversight 5 (2019) (stating that the general rule of grand jury secrecy is “not

unyielding”). Instead, the rule of secrecy has been relaxed and disclosure

permitted “whenever the interest of justice requires,” and that decision “rests

largely within the discretion of the court.” In re Grand Jury Proceedings, 4 F.

Supp. 283, 284 (E.D. Pa. 1933); see also United States v. Farrington, 5 F. 343, 346

(N.D.N.Y. 1881) (stating that “[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”). This is because grand jury secrecy is derived

from common law, and like any common-law fixture, it has changed in both its

61 Case: 17-15016 Date Filed: 03/27/2020 Page: 62 of 104

scope and purpose.5 See Douglas Oil Co. of Ca. 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)).

This history is crucial to our understanding of Rule 6(e) and its effects on the

courts’ inherent power to disclose grand jury materials. It demonstrates that Rule

6(e) is “not the true source of the district court’s power with respect to grand jury

records, but rather is a codification of standards pertaining to the scope of the

power entrusted to the discretion of the district court.” Hastings, 735 F.2d at 1268.

In other words, Rule 6(e) is only “declaratory” of the traditional common-law rule

that the disclosure of grand jury materials is “committed to the discretion of the

trial judge.” Pittsburgh Plate Glass Co., 360 U.S. at 399.

The majority ignores this history and examines Rule 6(e) as if it has no

backdrop. But we read rules “against the entire background of existing customs,

practices, rights, and obligations” already existing in common law and not

expressly displaced by statute. See David L. Shapiro, Continuity and Change in

Statutory Interpretation, 67 N.Y.U. L. REV. 921, 925 (1992); see also Astoria Fed.

Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104, 108 (1991) (recognizing that

“Congress is understood to legislate against a background of common-law . . .

5 The grand jury and grand jury secrecy are components of our English political heritage that were transplanted into our federal common law. See Douglas Oil Co. of Ca. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979). 62 Case: 17-15016 Date Filed: 03/27/2020 Page: 63 of 104

principles”). And although district courts’ inherent power may be limited by

statute and rule, we are not permitted to “lightly assume that Congress has 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); see also Link v.

Wabash R.R. Co., 370 U.S. 626, 630–32 (1962). Thus, to have displaced that

inherent power, Rule 6 would need a “clear[] expression of [that] purpose,” Link,

370 U.S. at 631–32, or for there to be a contradiction between the power and the

rule, see Dietz v. Bouldin, 579 U.S. ____, ____, 136 S. Ct. 1885, 1892 (2016). As

explained below, Rule 6(e) has neither.

In statutory (and rule) interpretation, we are expected to hold tight to

the words of the law. But the majority flouts that command by discerning a

clear expression of exhaustiveness in Rule 6(e) that is not at all evident. The

unambiguous words of Rule 6(e) do not clearly demonstrate an intention to

abrogate courts’ inherent authority to release grand jury materials. Nor do the

words of Rule 6(e) conflict with the exercise of that authority.

Rule 6(e)—entitled “Recording and Disclosing the Proceedings”—

contains three subparts, of which only two are important in this case: 6(e)(2)

(Secrecy) and 6(e)(3) (Exceptions). Rule 6(e)(2)(A) states that “[n]o

obligation of secrecy may be imposed on any person except in accordance

63 Case: 17-15016 Date Filed: 03/27/2020 Page: 64 of 104

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 jury.” The rule then lists seven types of persons to which

secrecy applies: grand jurors, interpreters, court reporters, operators of a

recording device, persons who transcribe recorded testimony, attorneys for

the government, and persons to whom disclosure was made under either Rule

6(e)(3)(A)(ii) or (iii). District court judges appear nowhere on this list.

Rule 6(e)(3) provides exceptions to secrecy rules. Subparts (A), (B),

(C), and (D) of that rule describe circumstances in which grand jury materials

may be disclosed without court permission. Subpart (E) describes

circumstances in which courts may authorize disclosure. It says that a “court

may authorize disclosure—at a time, in a manner, and subject to any other

conditions that it directs—of a grand-jury matter” under certain

circumstances. Fed. R. Crim. P. 6(e)(3)(E) (emphasis added). Those

circumstances are

(i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; (iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation; (iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or 64 Case: 17-15016 Date Filed: 03/27/2020 Page: 65 of 104

foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or (v) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law.

Id. Nothing in this language suggests the court’s ability to disclose is restricted to

only these circumstances.

The majority claims that the clause “[u]nless these rules provide

otherwise”—which appears only in Rule 6(e)(2)(B)—applies to all of Rule 6(e)

and is proof of a clear intent to eliminate a court’s inherent power to disclose grand

jury materials in all circumstances except those listed in subpart (e)(3)(E).

Majority Op. at 15–17. That is a strained interpretation. I cannot think of a basis

in statutory interpretation (or any interpretation for that matter) that would allow

the majority to copy the exclusivity requirement from subpart (e)(2)(B)—which

excludes courts and judges from those who are barred from disclosure—and paste

it into subpart (e)(3)(E). See Carlson, 837 F.3d at 764. Nor does the majority

provide any basis in statutory construction for this interpretation.

Instead, the majority says that the “text and structure” of Rule 6(e) support

its interpretation. Majority Op. at 15. But far from offering support for the

majority’s interpretation, the text and structure of the rule undermine it. In fact, the

65 Case: 17-15016 Date Filed: 03/27/2020 Page: 66 of 104

text of the rule explicitly prohibits the majority’s interpretation: “No 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, as the Carlson majority noted, the

fact that limiting language exists elsewhere in Rule 6(e), but not in (3)(E), proves

“that its absence in (3)(E) was intentional.” See 837 F.3d at 764. Therefore, the

right reading is the plain one: the unless-these-rules-provide-otherwise limitation in

Rule 6(e)(2)(B) applies only to those listed in (e)(2)(B). Courts and judges are not

listed there, so they are unaffected by that provision.

The majority attempts yet another end run around the plain text. It

concludes that, given the limited role of courts in grand jury proceedings, the

absence of “courts” or “judges” from Rule 6(e)(2)(B) is understandable and “does

not mean that the district court has no secrecy obligations with respect to grand

jury proceedings.” Majority Op. at 22. But that is the right answer to the wrong

question. As explained above, there is no doubt that district courts have secrecy

obligations under common law. See supra at 61. The right question is whether

Rule 6(e)(2)(B) clearly alters district court secrecy obligations so that they are

absolute in all circumstances except those listed in Rule 6(e)(3). In other words,

does Rule 6(e)(2)(B) clearly evince a purpose to eliminate district courts’ inherent

authority over grand jury materials? See Link, 370 U.S. at 631–32. The answer is

66 Case: 17-15016 Date Filed: 03/27/2020 Page: 67 of 104

no. Rule 6(e)(2)(B) does not include courts or judges, so they cannot be

constrained by the unless-these-rules-provide-otherwise limitation.

Having stripped the majority’s interpretation of its (e)(2)(B) disguise, our

focus next turns to Rule 6(e)(3)(E), which explains when the court “may authorize

disclosure.” Fed. R. Crim. P. 6(e)(3)(E). That language is plainly permissive.6

“[T]he ‘word’ may . . . implies some degree of discretion.” See Carlson, 837 F.3d

at 765 (citing United States v. Rodgers, 461 U.S. 677, 706 (1983)). And

permissive language does not compel the conclusion that it was the purpose of the

rule to abrogate the courts’ inherent power to disclose grand jury materials. See

Link, 370 U.S. at 630–32. The rule’s text is devoid of terms of exclusivity; it only

specifies some circumstances in which disclosure is authorized. The rule’s drafters

used limiting language in other parts of Rule 6 but omitted such language from the

only part of the rule that discusses courts. We should view that choice as

intentional and not mistaken.

In a sleight of hand, the majority suggests that while the Supreme Court has

not squarely addressed the issue in this case, it “has on several occasions suggested

6 Some of our sister circuits that have considered this issue have come to this same conclusion. See Carlson, 837 F.3d at 766 (“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.”); Craig, 131 F.3d at 102 (“Although, by delimiting the exceptions to grand jury secrecy, Rule 6(e)(3) governs almost all requests for the release of grand jury records, this court has recognized that there are certain ‘special circumstances’ in which release of grand jury records is appropriate even outside of the boundaries of the rule.”). 67 Case: 17-15016 Date Filed: 03/27/2020 Page: 68 of 104

that Rule 6(e) is exclusive.” Majority Op. at 17. Yet none of the cases it cites,

either implicitly or explicitly, analyzed the scope of a district court’s inherent

authority to disclose grand jury materials. See Pittsburgh Plate Glass Co., 360

U.S. at 396 (holding that a “trial court did not err in refusing to make . . . grand

jury testimony available to [defendants] for . . . cross-examination”); United States

v. Baggot, 463 U.S. 476, 479 (1983) (holding that disclosure for use in a tax audit

was not “preliminarily to or in connection with a judicial proceeding” within the

meaning of then Rule 6(e)(3)(c)(i), now 6(e)(3)(E)(i)); Williams, 504 U.S. at 55

(holding that a district court may not dismiss an otherwise valid indictment on the

ground that the government failed to disclose substantial exculpatory evidence to

the grand jury).

The majority also complains that this interpretation of Rule 6(e)(3)(E) would

make the enumerated exceptions to Rule 6(e) “merely precatory.” Majority Op. at

18. Quite the contrary. As the Seventh Circuit explained, it is not unreasonable to

infer that the rule’s drafters provided a list of frequent invocations to disclose

grand jury material, “so that the court knows that no special hesitation is necessary

in those circumstances.” See Carlson, 837 F.3d at 765. That inference is far more

reasonable than guessing that the rule’s drafters excluded district court judges from

the list of persons prevented from disclosing grand jury materials, and yet intended

the secrecy requirement to apply to them anyway. Especially given that, as

68 Case: 17-15016 Date Filed: 03/27/2020 Page: 69 of 104

explained further below, “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) (emphasis added).

Moreover, continuing to recognize district courts’ limited inherent authority

to release grand jury materials would not “circumvent or conflict with the Federal

Rules of Criminal Procedure.” See Carlisle v. United States, 517 U.S. 416, 426

(1996). A district court’s decision to disclose grand jury materials in extraordinary

circumstances would not annul any portion of Rule 6, nor could exercising that

authority contradict Rule 6(e)(3)(E)’s permissive language.

For those reasons, it seems plain to me that the rule did not expressly

eliminate courts’ inherent authority to release grand jury materials.

C.

If the text of Rule 6(e) were not clear enough, the history of the rule and the

Advisory Committee Notes also support our instinct in Hastings: Rule 6(e) was

meant to codify—not “ossify”—the common law. 7 See 735 F.2d at 1269. Rule 6

was 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.

7 “[A]lthough [Advisory Committee Notes] do not foreclose judicial consideration of the Rule’s validity and meaning, the construction given by the Committee is of weight.” Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (internal quotation mark omitted). 69 Case: 17-15016 Date Filed: 03/27/2020 Page: 70 of 104

Crim. P. 6 advisory committee’s notes to 1944 adoption (emphasis added). In

other words, in the first iteration of the rule, the drafters intended for courts to

maintain their power to disclose grand jury materials “where the ends of justice

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

Committee Notes even cite cases that held that district courts have discretion to

relax the rule of secrecy. See Fed. R. Crim. P. 6(e) advisory committee’s notes to

1944 adoption (citing 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, of which the grand jury is a part

and under the general instructions of which it conducted its ‘judicial inquiry.’ 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) (stating that nothing can “release a juror from the oath of secrecy” but “a

court acting in a given case [may do so] when in its judgment the ends of justice so

require”); Atwell v. United States, 162 F. 97, 100–03 (4th Cir. 1908)).

Since the adoption of Rule 6, courts have exercised the authority to order

disclosure in a variety of cases not expressly provided for in the rule. And Rule

6(e) has been frequently amended to conform to “subsequent developments

wrought in decisions of the federal courts” and not vice versa. Hastings, 735 F.2d

at 1268; see Am. Historical Ass’n, 49 F. Supp. 2d at 286; In re Kutler, 800 F. Supp.

70 Case: 17-15016 Date Filed: 03/27/2020 Page: 71 of 104

2d 42, 45–46 (D.D.C. 2011). Three examples are instructive. In 1977, the rule

was amended to allow disclosure to government personnel who assist prosecutors

with the grand jury. The Advisory Committee Notes explain that change followed

a trend of cases allowing this kind of disclosure. See Fed. R. Crim. P. 6(e)

advisory committee’s notes to 1977 amendment (citing In re William H. Pflaumer

& Sons, Inc., 53 F.R.D. 464 (E.D. Pa. 1971)). Then, in 1983, the rule was further

amended to allow disclosure to other federal grand juries. The Advisory

Committee Notes explain that “[e]ven absent a specific provision to that effect, the

courts have permitted such disclosure in some circumstances.” See Fed. R. Crim.

P. 6 advisory committee’s notes to 1983 amendment (citing Socony-Vacuum Oil

Co., 310 U.S. at 150; United States v. Garcia, 420 F.2d 309 (2d Cir. 1970)).

Finally, in 1985, the rule was amended to allow disclosure to state and local

government employees, following the example in In re 1979 Grand Jury

Proceedings, 479 F. Supp. 93 (E.D.N.Y. 1979). See Fed. R. Crim. P. 6 advisory

committee’s notes to 1985 amendment.

This amendment history underscores that Rule 6(e) was never intended to

“strictly confine[]” the instances in which disclosure of grand jury materials is

appropriate. Hastings, 735 F.2d at 1268; see id. at 1269; Carlson, 837 F.3d at 765.

This history demonstrates that the Advisory Committee accepted and adopted these

subsequent developments by adding them to the existing list of exceptions. Had

71 Case: 17-15016 Date Filed: 03/27/2020 Page: 72 of 104

the rule eliminated courts’ inherent power to disclose grand jury material beyond

the enumerated exceptions, the Advisory Committee would have amended the rule

and included a clear expression of that intent.

A recent Advisory Committee action supports this viewpoint. In 2012, the

Advisory Committee considered the exact question at issue in this case and

reaffirmed that Rule 6(e) is permissive and not exhaustive.8 In 2011, the

Department of Justice proposed an amendment to Rule 6(e) that would have

“allow[ed] district courts to permit the disclosure, in appropriate circumstances, of

archival grand-jury materials of great historical significance.” See Advisory

Comm. On Crim. Rules, Agenda Book 217 (Apr. 2012); see generally id. at 209–

271. The Department even put forward the same hobbled argument the majority

has: “federal courts have no inherent authority to develop rules that circumvent or

conflict with the Federal Rules,” and the courts that had applied “historical

significance exception[s] to Rule 6(e) threaten[ed] to undermine” the rule. Id. at

217. But the Advisory Committee rejected the proposal because it viewed it as

unnecessary. The Committee explained, that “in the rare cases where disclosure of

historically significant materials had been sought, district judges had reasonably

8 The majority rightly acknowledges that Advisory Committee minutes are different from Advisory Committee Notes and the text of the rule itself, and they cannot be given much weight. I rely on these minutes only to the extent that they demonstrate that learned minds—namely, judges and other legal professionals—also recognize that the inherent authority of district courts to relax grand jury secrecy is unaltered by Rule 6(e). 72 Case: 17-15016 Date Filed: 03/27/2020 Page: 73 of 104

resolved applications by reference to their inherent authority.” Advisory Comm.

on Crim. Rules, Minutes 7 (Apr. 2012).

* * *

In sum, the majority’s view is anti-textual and anti-historical. The text and

history of the Rules support the conclusion that Rule 6(e)(3)(E) was not intended to

abrogate courts’ inherent power to disclose grand jury materials, as the rule

remains subject to the common law that preceded it. See Hastings, 735 F.2d at

1268. Without a clear expression of the desire to displace courts’ inherent power

to disclose grand jury materials, the reasonable interpretation of the rule is a

permissive one: Rule 6(e) was intended to codify traditional law, not ossify it. See

id. at 1269. And the exercise of the inherent power to disclose grand jury materials

does not conflict with the rule.

Because the district court had the inherent authority to disclose grand jury

materials, I would affirm its decision that the facts in this case present exceptional

circumstances justifying the exercise of that authority.9

9 I have provided only an abridged analysis of this issue here. For a fuller analysis, including a detailed discussion of the Craig factors, see Pitch v. United States, 915 F.3d 704, 709–13 (11th Cir. 2019), reh’g en banc granted and opinion vacated, 925 F.3d 1224 (11th Cir. 2019). 73 Case: 17-15016 Date Filed: 03/27/2020 Page: 74 of 104

“[W]hile district courts have inherent authority to act outside Rule 6(e)(3),

any inherent disclosure authority is exceedingly narrow.” Aisenberg, 358 F.3d at

1347. “[C]ourts are not empowered to act outside Rule 6(e) in other than

exceptional circumstances consonant with the rule’s policy and spirit.” Hastings,

735 F.2d at 1269 (emphasis added). Exceptional circumstances exist when the

need for disclosure outweighs the public interest in continued secrecy. See id. at

1272–73 (quoting Douglas Oil, 441 U.S. at 223 (“[T]he court’s duty in a case of

this kind is to weigh carefully the competing interests in light of the relevant

circumstances and standards announced by this Court.”)); id. at 1275. And in the

proper circumstances, grand jury records on a matter of exceptional historical

significance may trigger a district court’s inherent authority to disclose them. See

Craig, 131 F.3d at 106 (outlining a “non-exhaustive list of factors that a trial court

might want to consider when confronted with these highly discretionary and fact-

sensitive” motions).

Here, the district judge appropriately recognized that the Pitch petition was

not a run-of-the-mill Rule 6 petition. The records are more than 70 years old.

There are no surviving witnesses or grand jurors. And no one disagrees that the

Moore’s Ford Lynching is an exceptional historical event, tied to the Civil Rights

Movement. For nearly 100 years, mass lynchings were the dual-purpose weapon

of the Klan’s war for white supremacy: they served to both eradicate large numbers

74 Case: 17-15016 Date Filed: 03/27/2020 Page: 75 of 104

of African Americans and terrorize generations more. Punctuating that century of

terror, the Moore’s Ford mass lynching is thought to be the last in our history. Of

course, given the importance of grand jury secrecy, the burden on the petitioner is

high in cases like these. It takes an event so profound in our country’s dark past—

so demanding of deep study and thought—to overcome that burden. After

balancing the competing interests, it seems obvious to me that this case would

meet that burden and that disclosure outweighs the interest in continued secrecy.

To conclude, I would maintain our Circuit’s precedent that district courts

have an inherent power to disclose grand jury materials. That power is limited and

should be invoked advisedly. That was done here, and so I would affirm.

75 Case: 17-15016 Date Filed: 03/27/2020 Page: 76 of 104

ROSENBAUM, Circuit Judge, dissenting:

I agree that the Majority Opinion’s reading of Rule 6(e)(2) is the most natural

one: Rule 6(e)(2) sets forth a general rule of secrecy, and Rule 6(e)(3) provides the

only exceptions to that rule. Maj. Op. at 15–16. But a major problem with that

interpretation precludes it from being the correct one: we know for a fact that

Congress itself—which, of course, is the branch that adopted Rule 6—does not agree

with it. In fact, Congress has enacted recent legislation that depends for its

operability on construing Rule 6(e) not to abrogate the courts’ common-law inherent

power to authorize release of grand-jury materials when appropriate, even in the

absence of an articulated exception under Rule 6(e). The Majority Opinion has no

answer to this problem.

To show why Rule 6(e) necessarily preserves the courts’ common-law

inherent authority to permit release of grand-jury materials, Section I of this dissent

briefly reviews the origins of Rule 6(e)—the common law. Section II.A then

demonstrates that Congress, in legislating against this common-law background,

necessarily and undoubtedly retained courts’ common-law inherent power to

authorize release of grand-jury materials, even in the absence of an express

exception to Rule 6(e). 1 As proof of this fact, I explain how the viability of a 2018

1 Judge Wilson and some of our sister Circuits have reached this same ultimate conclusion that Rule 6(e) preserves courts’ common-law inherent power to authorize release of grand-jury 76 Case: 17-15016 Date Filed: 03/27/2020 Page: 77 of 104

law depends on this construction of Rule 6(e). Section II.B shows that, in contrast

to the Majority Opinion’s unsupported view to the contrary, Supreme Court

precedent forcefully validates the conclusion that where, as here, the efficacy of a

later Congress’s legislative enactment necessarily depends on that later Congress’s

plausible construction of an earlier law, it is entitled to deference. Finally, Section

III establishes that Congress’s reading of its own enactment is consistent with

Supreme Court precedent.

Judge Wilson’s dissent ably reviews courts’ traditional supervisory power

over grand juries, so I do not cover that again here, see Wilson Dissent at 59–63 &

n.5, except to emphasize that before Rule 6(e)’s enactment, courts had the power to

disclose grand-jury materials when appropriate. The Majority Opinion does not

dispute this fact.

That common-law historical background, see Douglas Oil Co. of Cal. v.

Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979), is crucial to our interpretation of

Rule 6(e) because “Congress is understood to legislate against a background of

common-law principles.” Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010)

(quoting Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991))

materials outside the specified exceptions to Rule 6(e). See Carlson v. United States, 837 F.3d 753, 766–67 (7th Cir. 2016); In re Petition of Craig, 131 F.3d 99, 102–03 (2d Cir. 1997). 77 Case: 17-15016 Date Filed: 03/27/2020 Page: 78 of 104

(quotation marks and ellipses omitted). And when a statute “covers an issue

previously governed by the common law, we interpret the statute with the

presumption that Congress intended to retain the substance of the common law.” Id.

(citing Isbrandtsen Co., Inc. v. Johnson, 343 U.S. 779, 783 (1952)).

As Judge Wilson explains, under the common law, courts always had the

inherent authority to permit the breach of grand-jury secrecy when circumstances so

required. And since Rule 6(e) was intended to “codif[y] the traditional rule of grand

jury secrecy,” see United States v. Sells Eng’g, Inc., 463 U.S. 418, 425 (1983), we

cannot lightly conclude that Rule 6(e) jettisoned that common-law inherent

authority. See United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 233–34

(1940). To the contrary, we must keep this historical background in mind when we

consider the meaning of Rule 6(e).

That brings me to a review of Congress’s understanding of Rule 6(e). Despite

the attraction of Rule 6’s most natural reading, that construction does not control our

decision here, where “a clearly expressed legislative intention to the contrary” exists.

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

We do not have to wonder whether Congress intended Rule 6(e) to preserve courts’

common-law-based inherent authority to permit the disclosure of grand-jury records;

78 Case: 17-15016 Date Filed: 03/27/2020 Page: 79 of 104

we know that Congress understands Rule 6(e) to do just that. That’s because less

than two years ago, it enacted the Civil Rights Cold Case Records Collection Act of

2018, Pub. L. No. 115-426, 132 Stat. 5489 (2019) (codified at 44 U.S.C. § 2107)

(the “Cold Case Act”). And as the Majority Opinion does not deny, see Maj. Op. at

30 n.14, a significant chunk of that Act can function only if Rule 6(e) preserves

courts’ inherent authority to allow the release of grand-jury materials.

The Cold Case Act is a vital tool in trying to bring at least some form of

closure to a deplorable chapter in our history—that of violence against racial

minorities. Broadly described, the law requires the Archivist of the United States to

establish and disclose to the public a collection of records relating to unsolved civil-

rights cases that arose from January 1, 1940, through December 31, 1979. See Pub.

L. No. 115-426 at §§ 2(1)–(3), 3(a)–(b). The Senate committee that recommended

passage of the law noted that the records are “valuable for researchers, journalists,

historians, and those interested in solving these unsolved crimes,” and that “public

disclosure of information may actually increase the likelihood of enforcement by

crowdsourcing the materials.” Civil Rights Cold Case Records Collection Act of

2018: Report of the Committee on Homeland Security and Governmental Affairs, S.

Rep. No. 115-424, 115th Cong., 2d Sess. 2 (2018) (“Senate Rpt.”).

To allow for a deeper understanding of the covered civil-rights cases, the Cold

Case Act creates a multi-step mechanism for the United States Attorney General to

79 Case: 17-15016 Date Filed: 03/27/2020 Page: 80 of 104

seek court-authorized release of grand-jury materials to the public. As relevant here,

under that process, the Attorney General can petition the relevant court for the

disclosure of the grand-jury records. See Pub. L. No. 115-426 at § 8(a). Then, the

court determines whether the requested materials should be released.

But here’s the part that’s important for our analysis of Rule 6(e): significantly,

the Cold Case Act is not a freestanding grant of authority—separate and apart from

Rule 6(e)—to the courts to authorize the release of grand-jury materials. Rather, the

Act expressly anticipates that a court will be able to authorize the disclosure of any

covered grand-jury records through only the Rule 6 mechanism.

In this respect, the statute specifies that “[a] request for disclosure of civil

rights cold case records under this Act shall be deemed to constitute a showing of

particularized need under rule 6 of the Federal Rules of Criminal Procedure.” Id.

at § 8(a)(2)(B) (emphasis added). Not only does the statute expressly invoke only

Rule 6 as the mechanism under which the Attorney General can seek to obtain

disclosure of grand-jury materials, but the reference to “particularized need” is also

significant. That is the standard the Supreme Court has articulated for determining

when a court may authorize release of grand-jury materials under Rule 6(e).2

2 The Majority Opinion correctly notes that disclosures made under Rule 6(e)(3)(A)–(D) may occur without court approval. Maj. Op. at 14–15. But for two reasons, these exceptions clearly do not authorize disclosure of the grand-jury records sought under the Cold Case Act. First, the Cold Case Act requires the Attorney General to petition a court in the United States for the release of grand-jury materials. See Pub. L. No. 115-426 at § 8(a)(2)(A). So it cannot be the case 80 Case: 17-15016 Date Filed: 03/27/2020 Page: 81 of 104

Rule 6(e)(3)(E) sets forth Rule 6(e)’s articulated exceptions under which a

court may authorize release of grand-jury materials. Yet it is not enough for a party

seeking disclosure to point to an exception under Rule 6(e)(3)(E); rather, movants

must also “show that the material they seek is needed to avoid a possible injustice in

another judicial proceeding, that the need for disclosure is greater than the need for

continued secrecy, and that their request is structured to cover only material so

needed.” Douglas Oil, 441 U.S. at 222; see Sells Eng’g, 463 U.S. at 443 (“We have

consistently construed the Rule, however, to require a strong showing of

particularized need for grand jury materials before any disclosure will be

permitted.”) (emphasis added) (citations omitted).

We must presume that Congress deliberately used the term “particularized

need.” As the Supreme Court has explained, “if a word is obviously transplanted

from another legal source . . . it brings the old soil with it.” Evans v. United States,

504 U.S. 255, 260 n.3 (1992)) (quoting Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). Indeed, “[a]ny word or phrase that

comes before a court for interpretation is . . . . part of an entire corpus juris. So, if

possible, it should no more be interpreted to clash with the rest of that corpus than it

that any of these self-executing exceptions in Rule 6(e)(3)(A)–(D) authorize disclosure under the Act. And second, even the most cursory review of these exceptions—which permit disclosure for law-enforcement purposes to other government attorneys or personnel assisting government attorneys (Rule 6(e)(3)(A)(i)–(iii)), to a separate grand jury (Rule 6(e)(3)(C)), or in limited circumstances to foreign intelligence officials (Rule 6(e)(3)(D))—reveals that, by their terms, they do not authorize disclosure of grand-jury materials to the general public. 81 Case: 17-15016 Date Filed: 03/27/2020 Page: 82 of 104

should be interpreted to clash with other provisions of the same law.” Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 39, at 252

(2012); cf. Holloway v. United States, 526 U.S. 1, 9 (1999) (recognizing that “it is

reasonable to presume that Congress was familiar with the cases and the scholarly

writing” concerning its laws) (citing Cannon v. University of Chicago, 441 U.S. 677,

696–68 (1979)). So rather than creating a new exception, the plain language of

Section 8(a)(2)(B) of the Cold Case Act requires courts considering Cold Case Act

requests from the Attorney General to act under only Rule 6(e).

But significantly, when we look at the specific exceptions Rule 6(e) authorizes

for a court to allow disclosure, we readily find that not a single one permits a court

to authorize the Attorney General’s disclosure of grand-jury materials to the public.

To show why that is so, I review the articulated exceptions.

Rule 6(e)(3)(E)(i) permits the disclosure of materials “preliminarily to or in

connection with a judicial proceeding.” As the Supreme Court has explained, under

this exception to Rule 6(e), “it is not enough to show that some litigation may emerge

from the matter in which the material is to be used, or even that litigation is factually

likely to emerge.” United States v. Baggot, 463 U.S. 476, 480 (1983). Rather, “[t]he

focus is on the actual use to be made of the material. If the primary purpose of

disclosure is not to assist in preparation or conduct of a judicial proceeding,

disclosure under [this exception] is not permitted.” Id.

82 Case: 17-15016 Date Filed: 03/27/2020 Page: 83 of 104

In contrast, the primary purpose of the Cold Case Act is to provide public

access to the records of the covered cold cases, for educational, historical, and

scholarly uses. Perhaps in a rare case, the public’s research into the released

materials may yield enough evidence to allow a governmental agency to reopen a

cold case if it desires to do so and not all suspects are dead. But even accounting for

that exceptional circumstance, the primary purpose of the Cold Case Act is, most

certainly, not to assist in preparation or conduct of a judicial proceeding. Indeed, a

covered civil-rights case from the 1940-1979 period is subject to the Act for the very

reason that the Attorney General has no promising leads that would suffice to

identify and indict a living potential defendant. So this exception has no bearing

here.

Next, Rule 6(e)(3)(E)(ii) allows for breach of grand-jury secrecy that comes

“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.” Under the Cold

Case Act, though, the Attorney General—not an indicted defendant—is the one

authorized to request disclosure of the grand-jury materials. Besides, a defendant

obtains the grand-jury materials under this exception for the purpose of seeking to

dismiss his indictment, not to release them to the public. So this exception has no

bearing here.

83 Case: 17-15016 Date Filed: 03/27/2020 Page: 84 of 104

Rule 6(e)(3)(E)(iii) authorizes disclosure of grand-jury records “at the request

of the government, when sought by a foreign court or prosecutor for use in an official

criminal investigation.” But while the materials the Attorney General asks for under

the Cold Case Act are at the request of the government, she does not seek them for

Rule 6(e)(3)(iii)’s required purpose—that is, because they are “sought by a foreign

court or prosecutor for use in an official criminal investigation.” Cf. Baggot, 463

U.S. at 480. This exception also does not authorize release to the Attorney General

for disclosure to the general public. So this exception has no bearing here.

Like Rule 6(e)(3)(E)(iii), Rule 6(e)(3)(E)(iv) permits disclosure at the

government’s request, but this time, only if the government “shows that the matter

may disclose a violation of State, Indian tribal, or foreign criminal law, as long as

the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign

government official for the purpose of enforcing that law.” Again, though, the

exception does not authorize disclosure by the government to the general public, as

the Cold Case Act requires. And on top of that, release of records under the Cold

Case Act is not “for the purpose of enforcing [state, Indian tribal, or foreign criminal

law].” Cf. Baggot, 463 U.S. at 480. So this exception has no bearing here.

Finally, Rule 6(e)(3)(E)(v) allows for disclosure “at the request of the

government if it shows that the matter may disclose a violation of military criminal

law under the Uniform Code of Military Justice, as long as the disclosure is to an

84 Case: 17-15016 Date Filed: 03/27/2020 Page: 85 of 104

appropriate military official for the purpose of enforcing that law.” Once again, the

exception does not authorize disclosure by the government to the general public, as

the Cold Case Act requires. Nor is release of records under the Cold Case Act “for

the purpose of enforcing [military criminal law under the Uniform Code of Military

Justice].” Cf. Baggot, 463 U.S. at 480. So this exception has no bearing here.

That’s it. We’re fresh out of Rule 6(e)(3)(E) specified exceptions. And just

to avoid any doubt, I note that Rule 6(e) also does not authorize disclosure merely

upon a showing of “particularized need.”

So how under Rule 6(e) did Congress expect a court to authorize the Attorney

General’s disclosure of cold-case-civil-rights grand-jury materials? Obviously, it

construed Rule 6(e) to somehow endow courts with that authority. Otherwise, we

would have to assume that Congress enacted the grand-jury-records-release

mechanism of the Cold Case Act knowing that it would be an exercise in futility.

That can’t be right. Indeed, “one of the most basic interpretive canons” requires us

to construe a statute “so that effect is given to all its provisions, so that no part will

be inoperative or superfluous, void or insignificant.” Corley v. United States, 556

U.S. 303, 314 (2009) (citation and quotation marks omitted).

Then why did Congress view Rule 6(e) to permit courts to authorize the

Attorney General’s release of cold-case-civil-rights grand-jury materials to the

public? There’s only one possible answer: Congress construed Rule 6(e) to

85 Case: 17-15016 Date Filed: 03/27/2020 Page: 86 of 104

maintain from the common-law tradition the inherent authority of courts to release

grand-jury materials upon an appropriate showing—that of “particularized need.”

As I have noted, the Majority Opinion does not deny this. Rather, it fudges a

bit, acknowledging only that under the Majority Opinion’s construction of Rule 6(e),

“Rule 6(e) does not clearly permit the release of civil rights cold case [grand-jury]

records.” Maj. Op. at 30 n.14.

That is quite an understatement of the problem with the Majority Opinion’s

interpretation of Rule 6(e): Rule 6(e)’s express exceptions neither clearly nor

unclearly permit the release of Cold Case Act grand-jury materials. They simply

don’t allow the disclosure of Cold Case grand-jury materials at all. Even the

Majority Opinion does not try to explain how, under its view of Rule 6(e), the grand-

jury-release provisions of the Cold Case Act can be operable—even in an unclear

way. And no wonder—there is no way.

Because the Majority Opinion cannot deny that the Cold Case Act proves that

Congress construes Rule 6(e) to retain courts’ common-law inherent power to

authorize disclosure of grand-jury materials outside of rule 6(e)’s enumerated

exceptions, it is reduced to arguing that we should simply ignore Congress’s

interpretation of Rule 6(e) because Congress revealed it in the Cold Case Act. Not

86 Case: 17-15016 Date Filed: 03/27/2020 Page: 87 of 104

only does this interpretation contradict Supreme Court precedent, but it also defies

logic.

The Supreme Court has long held that “subsequent legislation declaring the

intent of an earlier statute is entitled to great weight in statutory construction.”

Loving v. United States, 517 U.S. 748, 770 (1996) (cleaned up and citations omitted);

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 n.8 (1969) (describing this

proposition as a “venerable” principle and citing in support Alexander v. Mayor &

Commonalty of Alexandria, 9 U.S. 1 (1809); United States v. Freeman, 44 U.S. 556

(1845); Stockdale v. Ins. Cos., 87 U.S. 323 (1874)). The Majority Opinion tries to

escape this “venerable” principle by contending that “the Cold Case Act does not

declare anything about the meaning of Rule 6(e),” since it does not expressly

mention Rule 6(e) in its text (other than to require the Attorney General to obtain

grand-jury materials from the courts through the Rule 6(e) process). Maj. Op. at 30

n.14.

But Supreme Court precedent shows that Congress can declare its intent

expressly or implicitly. See Almendarez-Torres v. United States, 523 U.S. 224, 237

(1998). As the Majority Opinion correctly observes, Congress can, for example,

state in later legislation what the earlier law “mean[s],” id. (citing Fed. Hous. Admin.

v. Darlington, Inc., 358 U.S. 84, 90 (1958)), or it may “seek to clarify an earlier

enacted general term.” Id. (citing Red Lion, 395 U.S. at 380–81).

87 Case: 17-15016 Date Filed: 03/27/2020 Page: 88 of 104

But just as effectively, Congress can express its intent through implicit means,

such as by enacting a law that “depend[s] for [its] effectiveness upon clarification

… of an earlier statute.” Id. (citing Seatrain Shipbuilding Corp. v. Shell Oil Co., 444

U.S. 572, 595–96 (1980)); see also Loving, 517 U.S. at 770. This is so because a

later statute that relies for operability on a particular construction of an earlier law

“is either a legislative exposition of a power formerly granted, or the grant of a new

power.” Alexander, 9 U.S. at 8; see also Freeman, 44 U.S. at 564– 65 (“[I]f it can

be gathered from a subsequent statute in pari materia, what meaning the legislature

attached to the words of a former statute, they will amount to a legislative declaration

of its meaning, and will govern the construction of the first statute.”); see also Scalia

& Garner, Reading Law § 39, at 252 (“Several acts in pari materia, and relating to

the same subject, are to be taken together, and compared in the construction of them,

because they are considered as having one object in view, and as acting upon one

system.”) (citation and quotation marks omitted).

This makes perfect sense. “With respect to subsequent legislation[,] . . .

Congress has proceeded formally through the legislative process.” South Carolina

v. Regan, 465 U.S. 367, 378 n.17 (1984) (cleaned up and citations omitted). And if

Congress had enough votes to pass legislation that depends for its efficacy on a

particular plausible interpretation of an earlier law, it by definition had enough votes

to enact legislation that expressly adopts the necessary construction of the earlier

88 Case: 17-15016 Date Filed: 03/27/2020 Page: 89 of 104

law. 3 That it did not do so proves only that it had no reason to believe that, in the

future (and in violation of separation-of-powers principles), we would insist on

imposing our own opposing construction of the earlier law, even though that

interpretation would render Congress’s most recent enactment nonfunctional.

Otherwise, we would have to believe that Congress went to the trouble of enacting

the grand-jury provisions of the Cold Case Act knowing full well that they could

never function. That would make about as much sense as concrete life preservers.

Yet the Majority Opinion simply dismisses the fact that the Cold Case Act’s

grand-jury-records-release provisions are inoperable under its interpretation of Rule

6(e), arguing that “the Cold Case Act on its face says nothing about the meaning of

Rule 6(e).” Maj. Op. at 31 n.14 (emphasis added). This argument completely

3 So if Congress did believe that Rule 6 stripped courts of inherent authority to authorize the release of grand-jury materials, it could have changed the rule to accommodate the Cold Case Act. Indeed, Congress substantively amended Rule 6 as recently as 2011 to “allow[] a judge to take a grand jury return by video teleconference.” Fed. R. Crim. P. 6 advisory committee’s note to 2011 amendments. Nothing prevented it from again amending it in 2018, to enable the operability of the Cold Case Act, if it had construed Rule 6(e) not to have preserved courts’ inherent authority. After all, it made changes to several other Federal Rules of Criminal Procedure that year. For example, Rule 12.4 (“Disclosure Statement”) was amended in 2018 to specify the deadline for filing a Rule 12.4(a) statement and to allow the government to “show[] good cause” for why it need not file a statement identifying any organization victim of an alleged criminal activity. See Fed. R. Crim. P. 12.4 advisory committee’s note to 2018 amendments. Likewise, Congress made multiple changes to Rule 49 (“Serving and Filing Papers”), including introducing subsections (a)(3) and (a)(4) that list the permissible means of service. See Fed. R. Crim. P. 49 advisory committee’s note to 2018 amendments. And Rule 45 (“Computing and Extending Time”) was amended to reflect the revisions to Rule 49. See Fed. R. Crim. P. 45 advisory committee’s note to 2018 amendments. That Congress did not amend Rule 6(e) when it enacted the Cold Case Act, which depends for functionality on the construction of Rule 6(e) that recognizes courts’ continuing inherent power to order release of grand-jury records outside an articulated exception, therefore demonstrates that Congress did not need to do so, since Rule 6(e) already included courts’ inherent authority to release grand-jury materials. 89 Case: 17-15016 Date Filed: 03/27/2020 Page: 90 of 104

ignores the Supreme Court precedent I have reviewed above, which holds that a later

Congress’s legislation that relies for its efficacy on a particular plausible

interpretation of an earlier Congress’s law necessarily declares the meaning of the

earlier law—even if it does not do so explicitly. And the Majority Opinion brushes

aside this principle that the Supreme Court has relied on without exception for more

than two-hundred years, without so much as citing a single authority supporting its

position. See Maj. Op. at 30–31 n.14. This sinks the Majority Opinion faster than

the concrete life preserver its analysis would saddle onto the Cold Case Act.

We must always keep in mind that construing a statute or rule is not an

academic exercise; our aim is to read it as Congress intended. After all, Congress,

not the Judiciary, holds the legislative power. Often, it is hard to know precisely

what congressional intent was, so we rely on the most natural interpretation of the

text. That rule generally makes sense. But where, as here, congressional

construction of the rule we are interpreting is objectively and undeniably

determinable from another legislative enactment and is consistent with the common-

law background against which the rule was adopted, we have no business imposing

our own conflicting interpretation of the rule—especially when doing so invalidates

portions of another law and violates more than two-hundred years of Supreme Court

precedent.

90 Case: 17-15016 Date Filed: 03/27/2020 Page: 91 of 104

This conclusion is, of course, at odds with the Majority Opinion’s assertion

that the Supreme Court “has on several occasions suggested that Rule 6(e) is

exclusive.” Maj. Op. at 17. Respectfully, I believe the Majority Opinion has it

wrong.

Consider Sells Engineering, which the Majority Opinion cites. The Supreme

Court’s language in that case suggests the Court reached the same conclusion that I

have, which is that Rule 6(e) imports the common-law tradition of courts’ inherent

power to authorize disclosure. There, after reiterating the critical importance of

grand-jury secrecy, the Court explained that “[i]n the absence of a clear indication

in a statute or Rule, we must always be reluctant to conclude that a breach of this

secrecy has been authorized.” Sells Eng’g, 463 U.S. at 425 (citation omitted).

Significantly, the Court used the term “reluctant” to describe the approach a

court should take in evaluating whether to authorize a breach of grand-jury secrecy

not “clear[ly] indicat[ed] in a statute or Rule.” In other words, while the general rule

requires that a court permit only expressly authorized disclosures, rare exceptions

are sometimes appropriate. If that were not the case, the Supreme Court would have

simply said that “in the absence of a clear indication in a statute or Rule, we must

conclude that a breach of this secrecy has not been authorized.” That it instead only

cautioned “reluctan[ce]” in finding authorization to release grand-jury materials in

the absence of an express exception implicitly acknowledges the continuing

91 Case: 17-15016 Date Filed: 03/27/2020 Page: 92 of 104

authority of courts to go beyond the enumerated exceptions in Rule 6(e)(3) in at least

some—albeit quite rare—circumstances.

The other cases that the Majority Opinion relies on fare no better. The

Majority Opinion invokes Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395,

398 (1959), for the proposition that “any disclosure of grand jury minutes is covered

by [Rule] 6(e).” Maj. Op. at 17. But significantly, the Supreme Court made this

statement in the context of determining that release of grand-jury testimony of a trial

witness was governed ultimately by Rule 6(e), not by Jencks v. United States, 353

U.S. 657 (1957). It neither had reason to opine nor did it opine on whether Rule

6(e)’s listed exceptions are exclusive when Rule 6 controls a potential disclosure.

The Majority Opinion’s reliance on the Supreme Court’s statement in Baggot,

463 U.S. at 479, that Rule 6(e)’s exception for release of grand-jury materials

“preliminarily to or in connection with a judicial proceeding” “is, on its face, an

affirmative limitation on the availability of court-ordered disclosure of grand jury

materials,” is similarly misplaced. Maj. Op. at 17–18. In Baggot, the Supreme Court

was interpreting the “preliminarily to or in connection with a judicial proceeding”

exception to Rule 6(e). At the outset of its analysis, the Court made the statement

the Majority Opinion invokes. In context, it is clear that the Court was simply

identifying the provision it was analyzing—a provision that each party agreed was

the relevant one and argued the terms of which supported its position. So as in

92 Case: 17-15016 Date Filed: 03/27/2020 Page: 93 of 104

Pittsburgh Plate Glass, the Court had no reason to consider—and did not in fact

consider—whether Rule 6(e)’s listed exceptions are exclusive when Rule 6 controls

a potential disclosure.

Finally, the Majority Opinion points to United States v. Williams, 504 U.S. 36

(1992), for the proposition that Rule 6(e) “plac[es] strict controls on disclosure of

matters occurring before the grand jury.” Maj. Op. at 18 (citing id. at 46 n.6)

(cleaned up). Williams wasn’t even about disclosure of grand-jury information at

all. Rather, the question there concerned whether a district court had the power to

dismiss an otherwise-valid indictment because the government did not disclose to

the grand jury “substantial exculpatory evidence” in its possession. Williams, 504

U.S. at 37–38.

In concluding courts do not enjoy that authority, the Court gave examples of

the circumstances under which a court may rely on its supervisory power to dismiss

an indictment, specifically referring to situations where the government has violated

certain rules created “to ensure the integrity of the grand jury’s functions.” Id. at 46.

In a footnote, it listed several such rules. One of those listed was Rule 6(e), described

in passing in the terms the Majority Opinion quotes. Id. at 46 n.6. In context, it is

clear that the Court was not referring to aspects of Rule 6(e) that address the courts’

authority to permit release of grand-jury materials but rather to the parts of Rule 6(e)

that allow release of grand-jury materials without the courts’ authorization. And in

93 Case: 17-15016 Date Filed: 03/27/2020 Page: 94 of 104

any case, at no time in Williams did the court evaluate—or have any reason to

evaluate—whether Rule 6(e)’s listed exceptions are exclusive.

Thus, Supreme Court precedent does not “suggest[] that Rule 6(e) is

exclusive.” Maj. Op. at 17. If anything, it supports the opposite conclusion.

In short, we don’t have to guess whether Congress intended to maintain

courts’ common-law inherent power to authorize release of grand-jury materials in

appropriate circumstances. We know indisputably that it did. Otherwise, we must

accept that Congress created the grand-jury-records-release mechanism of the Cold

Case Act knowing that no way to utilize that provision exists. That would be

nonsensical. When, as here, a later Congress’s statutory enactment depends for its

efficacy on a particular plausible interpretation of an earlier law, that later

Congress’s interpretation is entitled, under longstanding Supreme Court precedent,

to “great weight.” Loving, 517 U.S. at 770 (cleaned up and citations omitted). And

well it should be, in line with the proper roles of the Legislative and Judicial

branches. The Majority Opinion offers no answer to this sturdy principle. Because

the Majority Opinion does not defer to Congress’s plausible legislative interpretation

of Rule 6(e), I respectfully dissent.

94 Case: 17-15016 Date Filed: 03/27/2020 Page: 95 of 104

95 Case: 17-15016 Date Filed: 03/27/2020 Page: 96 of 104

96 Case: 17-15016 Date Filed: 03/27/2020 Page: 97 of 104

97 Case: 17-15016 Date Filed: 03/27/2020 Page: 98 of 104

98 Case: 17-15016 Date Filed: 03/27/2020 Page: 99 of 104

99 Case: 17-15016 Date Filed: 03/27/2020 Page: 100 of 104

100 Case: 17-15016 Date Filed: 03/27/2020 Page: 101 of 104

101 Case: 17-15016 Date Filed: 03/27/2020 Page: 102 of 104

102 Case: 17-15016 Date Filed: 03/27/2020 Page: 103 of 104

103 Case: 17-15016 Date Filed: 03/27/2020 Page: 104 of 104