Carlson v. United States, 15–2972

Citation837 F.3d 753
Decision Date15 September 2016
Docket NumberNo. 15–2972,15–2972
Parties Elliot Carlson, et al., Petitioners–Appellees, v. United States of America, Respondent–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Brendan J. Healey, Attorney, Mandell Menkes, LLC, Chicago, IL, KatieLynn Boyd Townsend, Attorney, Reporters Committee for Freedom of the Press, Washington, DC, for PetitionersAppellees.

Jaynie Randall Lilley, Mark R. Freeman, Michael S. Raab, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, Daniel W. Gillogly, Attorney, Office of the United States Attorney, Chicago, IL, for RespondentAppellant.

Amir C. Tayrani, Attorney, Gibson, Dunn & Crutcher LLP, Washington, DC, for Amici Curiae David Ardia, John Q. Barrett, David C. Cole, Joshua Dressler, David A. Goldberger.

Before Wood, Chief Judge, and Kanne and Sykes, Circuit Judges.

WOOD

, Chief Judge.

During World War II, the U.S. Office of War Information warned the populace that “loose lips sink ships.” See The Phrase Finder, http://www.phrases.org.uk/meanings/237250.html (last visited Sept. 15, 2016). But what if the ships sailed some 70 years before the tongues wag? That is the problem we face in the present case, in which Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that Rule 6(e) of the Federal Rules of Criminal Procedure

entirely eliminates the district court's common-law supervisory authority over the grand jury. It takes the position that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carlson and his allies must fail, because his request is outside the scope of Rule 6(e).

We find nothing in the text of Rule 6(e)

(or the criminal rules as a whole) that supports the government's exclusivity theory, and we find much to indicate that it is wrong. In fact, the Rules and their history imply the opposite, which is why every federal court to consider the issue has adopted Carlson's view that a district court's limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate. Because the parties agree that this is an appropriate instance (if, in fact, the district court has this power) we affirm the order of the district court.

I

The story behind our case is a thrilling one, involving espionage, World War II, and legal wrangling. The year is 1942; the setting, the Pacific Theater. After Pearl Harbor was attacked in December 1941, the shocked U.S. Navy sprang into action. The Japanese military hoped to sink the remainder of the U.S. fleet and was aiming to do so in an attack on Midway Island and the Aleutian Islands, nearly 2,000 miles away, in June 1942. The Japanese planned to invade the Aleutians with a small detachment so as to lure U.S. ships out of their safe harbors, then attack those ships with a larger force while simultaneously invading and occupying Midway as the U.S. Navy was distracted. See NORMAN STONE, WORLD WAR TWO 123–24 (2012). Instead, the U.S. Navy forces pulled off a stunning victory, defending Midway and sinking all five carriers that the Japanese had devoted to the operation, as well as some other ships. The victory at Midway was widely seen as a turning point in the Pacific. Id. at 124.

How did the U.S. Navy know its plan would work? Unbeknownst to Japan, the United States had broken some critical Japanese codes some two years earlier. ANTHONY BEEVOR, THE SECOND WORLD WAR 307 (2012). The U.S. Navy was thus able to figure out beforehand that Japan's attack on the Aleutians was a feint, and Japan's real goal was to overtake Midway and sink U.S. aircraft carriers in the process. STONE , supra, at 123. As the commander-in-chief of the U.S. Pacific Fleet explained in a later report, [h]ad we lacked early information of the Japanese movement ... the Battle of Midway would have ended far differently.” BEEVOR , supra , at 311.

This explains why senior U.S. officials were so dismayed when the Chicago Tribune blew their secret. On June 7, 1942, the Chicago Tribune 's banner headline announced victory in the Battle of Midway. Right below, the Tribune dropped another bombshell: “Navy Had Word of Jap Plan to Strike at Sea.” Stanley Johnston, CHICAGO TRIBUNE , June 7, 1942, at A1. The article explained that the United States knew that Japan was planning a minor attack on one American base as a distraction from a major attack on another, and this advance notice enabled the Navy to plan its victorious counterattack. The article appeared to be—and as we now know, in fact was—based on a classified Navy communiqué that alerted naval commanders to the impending attack on Midway Island.

The article's publication had immediate consequences: President Roosevelt and high-ranking military officials called for a criminal investigation. The Department of Justice complied, empaneling a grand jury and launching an investigation into whether the article's author and other Tribune staff had violated the Espionage Act of 1917. The grand jury heard testimony from an assortment of witnesses, including Tribune personnel, several identified military officers, and three or four unknown officers. Ultimately, the grand jury did not issue any indictments, a decision that the Tribune and other prominent national newspapers hailed as a victory for free speech.

Fast forward to the present, more than 70 years later. Elliot Carlson is a journalist and historian with a special expertise in naval history. He is the author of Joe Rochefort's War: The Odyssey of the Codebreaker Who Outwitted Yamamoto at Midway , an award-winning book on the commander who broke one of the Japanese codes. Carlson is currently writing a book on the Tribune 's Midway article and the ensuing investigation. Carlson and his co-plaintiffs (to whom we refer in the singular as “Carlson” for simplicity's sake) filed a petition in the Northern District of Illinois asking that court to unseal the transcripts of witness testimony before the Tribune grand jury.

Carlson chose the Northern District of Illinois because it was the court that originally had supervisory jurisdiction over the grand jury in question. He argued that this same court has continuing common-law authority over matters pertaining to that grand jury, including any application to unseal grand-jury materials. The convening court, for instance, would have the authority to rule on disclosure pursuant to Federal Rule of Criminal Procedure 6(e)

. Carlson acknowledged that his request falls outside the scope of the circumstances for releasing grand jury materials enumerated in the Rule. Nonetheless, relying on In re Craig , 131 F.3d 99 (2d Cir. 1997), Carlson argued that the district court has the inherent power to release grand-jury materials in situations not contemplated by Rule 6(e). He concedes that just as other inherent powers of the court should not be exercised lightly, see Dietz v. Bouldin , –––U.S. ––––, 136 S.Ct. 1885, 1893, 195 L.Ed.2d 161 (2016) ; Chambers v. NASCO, Inc. , 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), this power too is tightly circumscribed. Craig identifies numerous factors that a court should weigh when exercising this limited inherent power.

Carlson argued that his request satisfied these criteria, and the district court agreed with him. It decided first that it possessed the inherent authority to unseal grand-jury materials in situations outside the scope of Rule 6(e)(3)(E)

. It considered each point identified by Craig and concluded that disclosure in this case was warranted. It thus ordered that the transcripts be released. The government has appealed (and the order has been stayed pending appeal). The government agrees that if the district court has inherent authority to unseal grand-jury records, then “the transcripts have sufficient historical value to warrant release” under the Craig factors. It argues, however, that Rule 6(e) contains the exclusive list of reasons for which a district court may unseal grand-jury materials, and because historical value is not among them, the court was wrong to grant Carlson's petition.

II

Before turning to the merits of the appeal, we must assure ourselves that both the district court and we have jurisdiction over this matter. Because neither Carlson nor any of his fellow petitioner-appellees were parties to the underlying grand jury investigation, we must confirm that at least one of them has standing to bring this claim. See Ezell v. City of Chicago , 651 F.3d 684, 696 n.7 (7th Cir. 2011)

(“Where at least one plaintiff has standing, jurisdiction is secure[,] citing Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ). And because Carlson does not invoke a Federal Rule of Criminal Procedure as the basis for granting his petition to obtain the records, relying instead on the court's inherent power, we must confirm that we have subject-matter jurisdiction. We solicited supplemental briefs from the parties on these important points.

A

As a member of the public, Carlson has standing to assert his claim to the grand-jury transcripts, because they are public records to which the public may seek access, even if that effort is ultimately unsuccessful (perhaps because of sealing, national security concerns, or other reasons). Article III of the Constitution limits the federal courts' power to the adjudication of actual Cases and “Controversies.” U.S. CONST. Art. III. The doctrine of standing has “developed ... to ensure...

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