First Circuit, Departing from Second Circuit, Holds that Federal Courts Lack Authority to Release Grand Jury Records in “Historically Significant” Cases

In In Re Petition Records Release (Lepore v. United States), No. 20-1836 (1st Cir. Feb. 28, 2022), the First Circuit sidesteps whether federal courts have inherent authority to release grand jury proceedings from long-completed cases, outside of Fed. R. Crim. P. 6(e). It instead holds, whether or not such power exists, it cannot be exercised solely to release “historically significant” materials.

“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 . . . . Beginning in 1971, the New York Times published excerpts of the Pentagon Papers obtained from Daniel Ellsberg, an analyst who had helped prepare them . . . . 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 and his grand jury experience became a subject of interest for Harvard University historian Jill Lapore, who unsuccessfully requested the records from the Justice Department under the Freedom of Information Act. “Lapore 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 district court granted the relief but the First Circuit reverses.

The panel addresses the circuit split about whether Fed. R. Civ. 6(e)(3) furnishes the sole grounds for judicially releasing federal grand jury records. That subsection provides a list of exceptions to grand-jury secrecy, though none of them cover a request for “historically significant” materials. The First Circuit notes that the Second and Seventh Circuit have recognized the federal courts’ inherent power to release such records outside of Rule 6, while the D.C., Sixth, Eighth, and Eleventh Circuits hold that Rule 6(e) is “exhaustive.”

The panel concludes that it need not wade into this split, though, because the avowed ground in this case for releasing the materials—that they are “historically significant”—should not be recognized.

The panel acknowledges that some district courts and the Second Circuit in In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997), have permitted release of grand jury materials solely on grounds of historic significance. But it holds that “Craig’s approach departs from the traditional, restrained approach to wielding inherent judicial powers, at least where historically significant records do not implicate any ongoing proceedings.” The federal judiciary’s inherent authority narrowly concerns “the administration of justice in our legal system” and is not a free-floating authority to do public good.

Craig places significant weight on the fact that courts possess broad discretion in applying the Rule 6(e) exceptions . . . . We see little logic in such reasoning. Whether a court has discretion in applying an exception says little about whether a court has the discretion to create other exceptions, or about the scope of any such discretion. The existence and contours of any residual discretion to disclose grand jury materials are better located in the precedent we have reviewed in the prior section of this opinion. And as we have explained, that precedent anchors any such discretion in the court’s inherent authority to take steps necessary to further the fair administration of justice in a legal proceeding.”

Ultimately the decision of whether the seal should be lifted from “historically significant” grand jury records, holds the First Circuit, is properly a legislative rather than judicial one. “The administration of justice in a particular proceeding falls well within [the federal judicial] expertise; the gauging of historical significance, less so. Rather, such an endeavor strikes us as a task better suited to Congress, or the Rules Committees.”

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