Trial judges have discretion to unseal grand jury records – 7th Circuit

September 16, 2016

(Reuters) – Only once in U.S. history has the federal government tried to prosecute a mainstream news organization under the Espionage Act for reporting on a classified document, according to the Reporters Committee for Freedom of the Press.

In 1942, in the teeth of World War II, the U.S. got wind of a Japanese plan to lure the U.S. Navy into a trap in the Aleutian Islands. The ploy would have allowed the Japanese to destroy what remained of the Pacific fleet and to capture the island Midway, at the northwest end of the Hawaiian islands. But U.S. cryptographers had broken Japan’s code. Instead of exposing the fleet when Japan feinted in the Aleutians, the Navy pulled off a stirring defense of Midway, sinking four Japanese carriers and a heavy cruiser in the battle.

The Chicago Tribune learned about the code-cracking operation from a classified Navy communiqué. On the same day the newspaper reported on the defense of Midway, it revealed that the Navy had gotten advance word of Japan’s plan.

The story outraged the federal government’s highest ranks. President Franklin Roosevelt and senior military officials demanded a criminal investigation. The Justice Department empaneled a grand jury to determine whether the Chicago Tribune had violated the Espionage Act. As the 7th U.S. Circuit Court of Appeals recounted in an opinion issued Thursday, “the grand jury heard testimony from an assortment of witnesses, including Tribune personnel, several identified military officers, and three or four unknown officers.” Grand jurors did not ultimately issue any indictments.

The journalist and historian Elliot Carlson is writing a book about the Tribune’s Midway article and the ensuing investigation. Obviously, the records of the 1942 grand jury would be a goldmine for him. In 2014, along with several journalism and history groups, Carlson petitioned for release of witness transcripts from the grand jury investigation of the newspaper.

On Thursday, in a split decision, a three-judge 7th Circuit panel ruled that the records can be unsealed. The panel majority, Judges Diane Wood and Michael Kanne, concluded that the Federal Rules of Criminal Procedure do not prohibit trial judges from unsealing grand jury records at their discretion. They agreed with the lower court overseeing this case, U.S. District Judge Ruben Castillo of Chicago, that the historical significance of the documents outweighs the secrecy accorded grand jury proceedings.

“The advent of the criminal rules did not eliminate a district court’s inherent supervisory power as a general matter,” the 7th Circuit said. “The Supreme Court has repeatedly stated that permissive rules do not ‘abrogate the power of the courts’ to exercise their historic ‘inherent power’ when doing so does not contradict a rule.”

7th Circuit Judge Diane Sykes, in dissent, agreed with the government that the federal rules allow judges to unseal grand jury records only in the limited circumstances specified in the rules, such as disclosure in connection with a trial or to a foreign or tribal government. Judges do not have the authority, according to Judge Sykes, to order the release of grand jury materials just because they are historically significant.

But the 7th Circuit majority said there is plenty of precedent for judicial discretion over grand jury materials, both before and after the Federal Rules of Criminal Procedure were adopted in the 1940s. In an opinion by Judge Wood, the majority said it “makes no sense” to read the federal rules to restrict judges’ authority to unseal records only to the examples included in the text. The 7th Circuit said, in fact, that every federal court to have considered 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.”

The 7th Circuit particularly relied on the 2nd Circuit’s 1997 opinion in In re Petition of Bruce Craig, which established a balancing test for when grand jury materials may be unsealed in the interests of history. It also cited precedent from the 11th and District of Columbia Circuits (the D.C. Circuit case involved the grand jury investigation of Watergate), as well as the U.S. Supreme Court’s 1959 ruling in Pittsburgh Plate Glass v. U.S., in which the justices said of grand jury materials, “The federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. Our cases announce the same principle.” (Contradicting the majority, Judge Sykes’ dissent said the 8th Circuit, in an opinion stemming from a grand jury investigation of President Bill Clinton’s Whitewater land deal, found courts’ discretion to be limited to the circumstances laid out in the federal rules.)

Petitions to unseal grand jury records are rare, said Katie Townsend of the Reporters Committee, who argued at the 7th Circuit for Carlson and the groups calling for disclosure of the Tribune records. The bar for breaching grand jury secrecy, Townsend said, remains very high even after Thursday’s ruling by the 7th Circuit.

But Townsend said she was very happy about the 7th Circuit’s “important and groundbreaking” finding that members of the public have standing to request the unsealing of grand jury materials, and district courts have jurisdiction to rule on those requests. No previous court has examined standing and jurisdiction, Townsend said, so the 7th Circuit’s discussion may encourage other journalists and historians to ask to see grand jury transcripts.

Townsend said the Reporters Committee was also gratified to be involved in a case stemming from the only Espionage Act investigation of journalists. At the time the group got involved in the litigation over the 1942 Tribune grand jury materials, journalists’ exposure to prosecution for reporting on leaked classified documents was very much in the news. Townsend is looking forward to seeing why the 1942 grand jury, in the midst of war, decided not to issue indictments after the Tribune’s disclosure.

“Today, you wonder if this would even go to a grand jury,” Townsend said.

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