Lepore v. United States (In re Order Directing Release of Records)
| Citation | 27 F.4th 84 |
| Decision Date | 28 February 2022 |
| Docket Number | No. 20-1836,20-1836 |
| Parties | IN RE: PETITION FOR ORDER DIRECTING RELEASE OF RECORDS Jill Lepore, Petitioner, Appellee, v. United States of America, Respondent, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Brad Hinshelwood, Attorney, Civil Division, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Andrew E. Lelling, United States Attorney, and Michael S. Raab, Attorney, Civil Division, were on brief, for Appellant.
Jacob M. Schriner-Briggs,** with whom Charles Crain, Media Freedom & Information Access Clinic, Abrams Institute, Yale Law School, Jonathan M. Albano, Noah J. Kaufman, and Morgan Lewis & Bockius LLP were on brief, for Appellee.
Bruce D. Brown, Katie Townsend, Lin Weeks, and Reporters Committee for Freedom of the Press on brief for Reporters Committee for Freedom of the Press and 39 Media Organizations, amici curiae.
Scott L. Nelson, Allison M. Zieve, and Public Citizen Litigation Group on brief for American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists, amici curiae.
Before Lynch and Kayatta, Circuit Judges, and Laplante,* District Judge.
This case traces its origins to grand juries empaneled in 1971 to consider possible criminal charges arising out of the publication of excerpts from the so-called Pentagon Papers, a government study of the Vietnam War. At the request of historian Jill Lepore, the district court ordered the release of sealed archival records of the grand jury proceedings. The court stayed its order pending this timely appeal by the government. For the following reasons, we find that a federal court does not have the authority to order the release of grand jury records based on a finding that historical interest in the records outweighs any countervailing considerations. Accordingly, we reverse both the order of the district court and its judgment in favor of the petitioner. Our reasoning follows.
Beginning in 1971, the New York Times published excerpts of the Pentagon Papers obtained from Daniel Ellsberg, an analyst who had helped prepare them. The Nixon Administration sought to enjoin their publication -- to no avail. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).1
That same year, authorities investigating how Ellsberg had obtained, copied, and disseminated the Pentagon Papers empaneled two federal grand juries in Boston. Among those who received a grand jury subpoena was Samuel Popkin, a political scientist who had crossed paths with Ellsberg while working in Vietnam. Popkin ultimately refused to testify about some topics, was held in civil contempt, and appealed to this court. See United States v. Doe, 460 F.2d 328 (1st Cir. 1972) (affirming in part and reversing in part). He spent eight days in jail. The grand jury that had subpoenaed Popkin was discharged without securing any further testimony from him.
Decades later, Popkin and his grand jury experience piqued the interest of Harvard history professor and author Jill Lepore. Working on a book about Popkin's former employer, the Simulmatics Corporation, Lepore decided "that she needed to know more" about the grand jury investigations in which Popkin had been caught up.
Upon learning that the grand jury records she sought were under indefinite seal at the National Archives in Boston, Lepore filed a Freedom of Information Act (FOIA) request seeking their release. In short order, her request was denied "to preserve the secrecy of grand jury proceedings per 5 U.S.C. § 552(b)(3), pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure."
Rather than appealing the denial of her FOIA request, Lepore filed a petition in the federal district court seeking release of the records "pursuant to Federal Rule of Criminal Procedure 6(e)." Lepore did not argue that Rule 6(e) expressly authorized release of the records she sought. Rather, she claimed that the court possessed the inherent authority to release the records. The government moved to dismiss, but the district court granted Lepore's petition and ordered the records released, subject to considering redactions for especially sensitive material. In so ruling, the district court relied on two rationales. First, the court held that Rule 6(e)(6) authorized the disclosure. Second, it held that, apart from Rule 6, the court's inherent authority authorized the disclosure because of the records' possible interest to historians and the absence of any remaining practical countervailing considerations. After briefly describing the regime that governs grand jury records, we address each rationale in turn.
"Unlike an ordinary judicial inquiry, where publicity is the rule, grand jury proceedings are secret." Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960). Grand jury proceedings and records have been "kept from the public eye" since the 17th century. Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Today, this common-law "rule of grand jury secrecy" remains "an integral part of our criminal justice system." Id. The Supreme Court has identified a "public interest in [this] secrecy," id. at 223, 99 S.Ct. 1667, explaining:
[I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.
Of course, secrecy can sometimes undercut other important aims. Cognizant of this fact, Congress has affirmed in Federal Rule of Criminal Procedure 6(e)(3) the adoption of certain exceptions to the secrecy norm. Subsections (A)–(D) authorize certain disclosures that may be made without court approval. Subsection (E) specifies five circumstances in which a "court may authorize disclosure," as follows:
Fed. R. Crim. P. 6(e)(3)(E)(i)–(v). But unless and until the disclosure of grand jury materials is authorized, Rule 6(e)(6) provides that "[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury."
The district court read Rule 6(e)(6) as implicitly authorizing disclosure in this case. The court reasoned that it was "no longer necessary to keep the materials in question under seal" because they were "nearly fifty years old, ha[d] been the subject of contemporaneous newspaper articles, and ha[d] been partially disclosed in both public court filings and statements made by grand jury witnesses."
Unlike the district court, we do not glean from the recordkeeping provisions of Rule 6(e)(6) a negative implication permitting the release of grand jury records. The rule says nothing about when or for what reason disclosure can be authorized. Rather, it simply calls for sealing such records to the extent necessary to "prevent [their] unauthorized disclosure." Rule 6(e)(6) thus does not directly address the questions of when and how disclosure is authorized.
Having rejected the district court's finding that Rule 6(e)(6) authorized the disclosure of the grand jury materials in this case, we turn to whether the court had inherent authority to release the records in circumstances not enumerated in Rule 6(e)(3). We conclude that, even assuming such authority exists, it does not empower a court to order disclosure based only on a finding that historical interest in grand jury materials outweighs any countervailing considerations.
As a general matter, it is clear that federal courts have inherent authority to take some actions not expressly authorized by rule or statute when such actions are needed to facilitate or safeguard legal proceedings. Courts "invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities." Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996).2 It "has long been understood that ‘certain implied powers must necessarily result to our Courts of justice from the nature of the institution,’ powers ‘which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.’ " Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (internal brackets omitted) (quoting United States v. Hudson, 7 Cranch 32, 34, 11 U.S. 32, 3...
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