[00:00:01] Speaker 06: Case number 17-5149, Stuart A. McKeever, appellate versus Jeff Sessions, attorney general. [00:00:08] Speaker 06: Mr. Phillips for the amicus curae, Mr. Hinchelwood for the appellee. [00:01:33] Speaker 04: Good morning and may it please the courts. [00:01:35] Speaker 04: Graham Phillips, the court appointed amicus, arguing on behalf of Mr. McKeever, who's with us here today. [00:01:41] Speaker 04: I'd like to reserve three minutes for rebuttal. [00:01:44] Speaker 04: The primary issue in this appeal is a narrow one. [00:01:46] Speaker 04: Does Rule 6E prevent a district court from exercising inherent authority to release historically significant grand jury records decades after the grand jury has been discharged? [00:01:58] Speaker 04: There are three key reasons that should convince this court that the answer is no. [00:02:02] Speaker 02: First, but just before we get to the merits, could I ask you about Article III standing? [00:02:08] Speaker 02: As I understand it, these records are currently [00:02:13] Speaker 02: controlled by the archives and you've sued the attorney general. [00:02:18] Speaker 02: So your harm is traceable to not the AG's refusal to disclose, but the archivists. [00:02:27] Speaker 02: So why isn't that a traceability, redressability problem? [00:02:30] Speaker 04: I think the good Article III standing analysis is contained in Carlson and we think that the logic of Carlson. [00:02:36] Speaker 02: Defended in Carlson was the United States. [00:02:40] Speaker 02: The United States assumes the archives. [00:02:42] Speaker 02: The Department of Justice does not. [00:02:44] Speaker 04: Right. [00:02:45] Speaker 04: I think the way to look at this case, Your Honor, is although the plaintiff's complaint did name the attorney general as the defendant, I think the better way to understand it is that it is a petition to the court asking the court to release records. [00:03:01] Speaker 04: And I think there are many cases where that has been allowed and has not been considered an Article III. [00:03:06] Speaker 02: Did the court direct an order to the archivist where the archivist isn't a party in the case? [00:03:12] Speaker 04: Well, I think this bears on the question of whether these are judicial records or not. [00:03:16] Speaker 04: And I think the answer is yes, they are. [00:03:18] Speaker 04: And so although they are sort of in the physical custody of the archives, so long as they are court records, then yes, the court can absolutely sort of direct that they be sort of given physically back to the court. [00:03:33] Speaker 04: So I think on that basis, there's Article III standing here. [00:03:36] Speaker 02: I think to say that there's not Article III standing for this type of request would work a fairly significant change in the law. [00:03:55] Speaker 04: Well, again, I think that the district court itself understood this as a request to hit the court for the release of records. [00:04:04] Speaker 04: So I think an issue of who is on the caption of the case should not control the question of article 3. [00:04:09] Speaker 02: Your theory is 61 makes these records of the attorney for the government, which is DOJ, and maybe the court. [00:04:20] Speaker 02: And that's good enough. [00:04:21] Speaker 04: Well, I'm not sure I agree with sort of the first part about it. [00:04:24] Speaker 04: It makes them the records of the government, but the argument is that they're the records of the court. [00:04:31] Speaker 02: The attorney for the government will retain control unless the court orders otherwise. [00:04:36] Speaker 04: That's right. [00:04:37] Speaker 02: So by default, the records are... The problem is the attorney for the government has not in fact retained control. [00:04:46] Speaker 02: Turn the documents over to a separate agency. [00:04:49] Speaker 04: Right. [00:04:53] Speaker 04: That's true. [00:04:54] Speaker 04: I don't think it impacts Article III standing here, but I think the best analysis of this is in Carlson, and we would sort of rely on that analysis. [00:05:09] Speaker 04: So there are three, setting that aside, there are three key reasons that we think should convince this Court that the District Court did have authority here to release these records. [00:05:20] Speaker 04: First, by its plain text, Rule 6E imposes its obligation of secrecy on a precisely enumerated list of people. [00:05:28] Speaker 04: And the District Court is not on that list, and therefore Rule 6E's strictures do not bind the District Court itself in the first place. [00:05:36] Speaker 04: Second, the Advisory Committee on Criminal Rules, which is responsible for proposing and considering amendments to Rule 6, has looked at precisely this issue and has concluded that the courts have properly invoked their inherent authority to make disclosures of this sort, and that there's no reason for this court to second-guess that considered judgment. [00:05:55] Speaker 04: And third, every court to have considered the issue, which includes three courts of appeals, as well as district courts and two other circuits, has concluded that courts do have inherent authority to make certain disclosures of grand jury records that are not specifically addressed in Rule 6. [00:06:10] Speaker 01: Can I just ask you one just detailed question on that last point? [00:06:13] Speaker 01: Which is the Eighth Circuit has this decision in McDougall? [00:06:17] Speaker 01: Yes. [00:06:17] Speaker 01: Isn't that a court that came out the other way? [00:06:20] Speaker 04: I don't think it is, and at the very least, it is not a court that actually sort of considered these particular issues. [00:06:27] Speaker 04: I don't think these arguments were clearly raised and addressed in that decision. [00:06:32] Speaker 04: So I don't think it counts as a court that has squarely considered this and come out the other way. [00:06:39] Speaker 04: And I think on that point, it's notable that I don't believe the government cites McDougall as support for its position here [00:06:47] Speaker 01: It didn't, but I think Judge Sykes' dissent in the Seventh Circuit did cite McDougal in support of her position, which is contrary to yours. [00:06:56] Speaker 01: And it just, I mean, obviously it's not binding on us, but I just, I was struck by the [00:07:03] Speaker 01: by the point that all sides seem to agree that there's no conflict out there, not just I guess I read McDougal to obtain the argument whether disclosure has to come under the auspices of Rule 6 or whether there's some other way to get disclosure. [00:07:18] Speaker 01: And it seemed like McDougal at least addressed that argument and concluded that you have to come within Rule 6. [00:07:23] Speaker 04: I don't think it squarely did just based on the nature of the arguments that were made. [00:07:28] Speaker 04: I understand the point. [00:07:31] Speaker 04: The other thing is that on rereading McDougall, it's not clear to me that what was being requested was the actual underlying records of the grand jury as opposed to [00:07:41] Speaker 04: court records of ancillary proceedings to the grand jury. [00:07:45] Speaker 04: I think she was trying to get access to records relating to a contempt proceeding perhaps. [00:07:50] Speaker 01: And that makes it even stranger than Rule 6 would have been doing the work. [00:07:54] Speaker 04: Well, I mean, Rule 6 does address records in ancillary proceedings. [00:08:01] Speaker 04: I see. [00:08:02] Speaker 04: Rule 65 and 66 are sort of geared toward that. [00:08:07] Speaker 04: And I think that conceivably can make a difference. [00:08:09] Speaker 04: And so I think the fact that that seems to be what Google was addressing. [00:08:14] Speaker 01: Can I take you then to your first argument, which is the textual argument? [00:08:16] Speaker 01: Absolutely. [00:08:17] Speaker 01: OK, so on the text, here's my question. [00:08:19] Speaker 01: So E1 says, [00:08:21] Speaker 01: an attorney for the government will retain control unless the court orders otherwise. [00:08:28] Speaker 01: So let's just assume the standard situation in which an attorney for the government is retaining control. [00:08:33] Speaker 01: I get that it says unless the court orders otherwise, and it seems like your argument is tethered to this notion that there's a distinction between the court and an attorney for the government. [00:08:43] Speaker 01: because an attorney for the government is somebody outside the court and then there's the court itself. [00:08:47] Speaker 01: That's right. [00:08:47] Speaker 01: And I guess I wasn't sure about that because it seems like what's going to happen a lot of times is when a party comes before the court and says release these grand jury documents for any, you name the reason, could be historical significance, could be other things, what they're really saying is tell the government attorney who by default assumption has the documents to give me the documents. [00:09:09] Speaker 01: So at that point it seems like there's not a talismanic distinction between the court itself and the government attorney who by assumption of E1 is holding on to the documents. [00:09:19] Speaker 01: They're the same thing. [00:09:20] Speaker 01: That's not to say you necessarily can't get home. [00:09:23] Speaker 01: It's just that on your, at the end of the day, it's just that on your textual argument I was wondering about that because it seems like [00:09:32] Speaker 01: the rule assumes and some of the cases assume that there's no distinction between the attorney for the government who's holding the documents for the court and the court. [00:09:42] Speaker 04: Well, I do think in practice that is the way it plays out in many cases, because by default, and especially when it's, especially when the grand jury either is still ongoing or has recently been ongoing, especially when you're talking about proceedings that are directly connected to the underlying grand jury, then yes, the government will have them. [00:09:59] Speaker 04: And so it makes sense that the request will practically be directed to them. [00:10:07] Speaker 04: So I think that is true as a practical matter, and it is true that therefore the rule acts as a constraint on what the government itself does. [00:10:17] Speaker 04: But there are instances where the records are, or at least some sorts of records, are in the possession of the court itself. [00:10:26] Speaker 04: And I think in that situation, the text of the rule does not address that situation. [00:10:31] Speaker 01: And what's the practical situation in which that comes up? [00:10:36] Speaker 01: When would I predictably assume that there's a meaningful distinction between the court and the government attorney who under E1 is the presumptive custodian of the documents? [00:10:46] Speaker 04: Well, I think it is rare. [00:10:47] Speaker 04: I think the fact that it's rare is all the more reason to be comfortable with saying that [00:10:53] Speaker 04: that in these sort of unusual circumstances that we've got with these types of requests, that we are not proposing some kind of evasion of the rule that will eviscerate it and make it meaningless. [00:11:09] Speaker 01: Sorry. [00:11:09] Speaker 01: Just one last follow-up. [00:11:11] Speaker 01: But I guess what I'm getting at is, if it's true that in the mind-run of situations, there's not a meaningful distinction between the court itself and the government attorney who's holding the documents, [00:11:22] Speaker 01: subject to the court's override of that, then the exceptions [00:11:29] Speaker 01: like the exceptions in E3E, which are the ones that we're mainly focused on, those seem like they do operate against the court. [00:11:40] Speaker 01: They don't just operate against those people who are outside the court. [00:11:44] Speaker 01: They operate against the court. [00:11:47] Speaker 01: And then the question becomes, OK, then there's those exceptions. [00:11:49] Speaker 01: Are those exceptions the only exceptions, or can you still get around the rule by saying the court still has some residual authority to authorize release? [00:11:57] Speaker 01: But it's a different argument than your threshold textual argument to say that the E3E exceptions still hold when it's the court that has the documents. [00:12:08] Speaker 01: But you can't just get out of those exceptions by saying, no, no, those exceptions only have to do with circumstances in which somebody other than the court is holding it. [00:12:15] Speaker 01: So the rule just doesn't come into play at all. [00:12:17] Speaker 01: Do you understand what I'm saying? [00:12:19] Speaker 04: I think I do. [00:12:21] Speaker 04: But I think, with respect to your previous question, it is the practical case that the government will tend to have the records. [00:12:29] Speaker 04: And so the text of the rule will apply directly. [00:12:33] Speaker 04: But I don't want to suggest that there's no legal difference between the court and the government, because I think there absolutely is. [00:12:46] Speaker 01: I mean, it's sort of, in a way, it dovetails a little bit with the standing questions Judge Katz just asked me, because if there is a distinction, then here the court itself doesn't have the documents. [00:12:58] Speaker 04: Well, the court doesn't physically have the documents, but I think they are court records, and so I think in other instances, the court can say to the government, [00:13:11] Speaker 04: you know, sort of, I'd like the records, please. [00:13:13] Speaker 04: And we cite cases in our reply brief of instances where courts have said to the government, you know, I'd like to look at the grand jury records, please, even instances where district courts have done that sui sponte, because they think something has happened with the grand jury process, and so they say to the government, [00:13:28] Speaker 04: sort of under their E1 authority, give me the grand jury records, at which point the court is in possession of them. [00:13:36] Speaker 04: And at that point, our argument is that it is not, as a matter of the text of Rule 60, it is not constrained by E3E, because that is a situation in which it is not the government disclosing. [00:13:51] Speaker 04: I mean, I think practically that sort of thing rarely happens, if ever. [00:13:57] Speaker 04: And it's really only more in a situation like this, where years after the facts, the court might retake possession of the records for various reasons and then can disclose them and do so in a way that's not contradict rule six. [00:14:13] Speaker 02: If your theory depends on who [00:14:16] Speaker 02: has the records, that's not going to be a limiting principle at all because on your reading of E1, the court, if the government, if the records are in possession of the archivist or DOJ or anybody else, the court can just order the records transferred to the court. [00:14:41] Speaker 02: And then on your theory, you're completely out of the rule, and we're just into nine factor balancing tests. [00:14:49] Speaker 04: So I don't think we are completely out of the rule. [00:14:52] Speaker 04: But in any case, we certainly are not into anything goes land, which I think is the way our argument has been portrayed and is not correct. [00:14:58] Speaker 04: We absolutely do not think. [00:15:00] Speaker 02: So let's just press on that. [00:15:03] Speaker 02: The background rule is C for C. That's correct. [00:15:07] Speaker 02: And then you have this list of exceptions. [00:15:12] Speaker 02: Normal presumption is when Congress enumerates a list, the list is the list and courts don't add to it. [00:15:22] Speaker 02: That presumption is fortified where the list is, [00:15:29] Speaker 02: detailed, reticulated, which fairly describes this. [00:15:34] Speaker 02: We have at least a handful of Supreme Court cases like Bagot and Douglas Oil and Sells, which take the list seriously and they say, [00:15:47] Speaker 02: You have to narrowly construe the elements like what is a pending case, and even when you're within an exception, courts have to exercise discretion narrowly. [00:16:00] Speaker 02: And under your theory, all of that just misses the boat because the party seeking the records in a case like Bagot could say, okay, I've lost under the enumerated exceptions, but now I have my alternative theory under a nine factor balance test or some other test. [00:16:25] Speaker 04: All right, so no, we don't think that in the case of Bagot, the IRS could have just asked the district court, hey, district court, you could just say, hey, it's really important of tax enforcement, it's really important [00:16:40] Speaker 02: And the balancing test says you should look to the purpose of the disclosure and the IRS thinks that's important. [00:16:52] Speaker 02: Why can't the district court entertain that argument on your theory? [00:16:56] Speaker 04: Well, because I think that argument, disclosure in that circumstance, would be tantamount to allowing a circumvention of the exceptions in Rule 6E3B. [00:17:09] Speaker 04: Which is outside the scope of the exception. [00:17:11] Speaker 04: Because it's outside the scope of the exceptions and it's clearly within the scope of the types of disclosures that the rule is intended to, that it's concerned with. [00:17:23] Speaker 02: It's only a little bit outside the scope of the exceptions. [00:17:27] Speaker 02: The exceptions are designed to codify pre-existing practice. [00:17:34] Speaker 02: So on your answer to the circumvention point, the more novel and out of left field the theory is, the more likely it is to produce a disclosure because you say, well, it's not close to the exceptions under the rule, it's just a completely different subject. [00:17:53] Speaker 04: I think in circumstances where the nature of the disclosure is something that [00:17:59] Speaker 04: that the rules shows no sign of having considered, then I think that's a situation in which it can be appropriate if the rules have not sort of addressed that topic to leave that to the sound discretion of the district court. [00:18:13] Speaker 04: And this is part of why I think this reading and this understanding of the rule sort of makes sense structurally. [00:18:19] Speaker 04: And it gets back to your point Judge Cass is about, isn't this a very detailed list, and so don't we? [00:18:25] Speaker 04: So it is detailed, but it's also detailed [00:18:27] Speaker 04: at the front end where it describes who is bound by its obligation of secrecy, it lays out the parties very clearly. [00:18:35] Speaker 02: It covers everyone who would be in the room except the witness who's accepted, I assume, for First Amendment purposes. [00:18:45] Speaker 04: So it does cover everyone who's in the room. [00:18:48] Speaker 02: And your answer to that is, well, the district court isn't on the list. [00:18:52] Speaker 04: The district court is not on the list, and I think it makes sense that the district court is not on the list. [00:18:55] Speaker 04: Again, because I think the way the structure of the rule is set up is that. [00:19:00] Speaker 02: If that's enough to make the list of exceptions non-exclusive, we're just back to where we were where either you have [00:19:12] Speaker 02: a roadmap for complete circumvention, or you have this seemingly anomalous result that the more novel the theory, the more likely you are to get the disclosure? [00:19:24] Speaker 04: I think what it means is that if you're seeking a type of disclosure that the Rules Committee and Supreme Court have not addressed and is not sort of within the nature of the concern of the rule, then it is left to the district court [00:19:39] Speaker 04: And the district court makes the decision whether to allow that disclosure, starting from a strong presumption of non-disclosure. [00:19:46] Speaker 04: We don't dispute that. [00:19:47] Speaker 04: That's absolutely right. [00:19:48] Speaker 04: And so it would only then be in a rare case where disclosure would even be possible. [00:19:56] Speaker 04: I think I should point out, as I said at the beginning, this is an issue that has been addressed by quite a number of courts. [00:20:06] Speaker 04: and has been addressed for quite a while now, going back to the 70s and 80s. [00:20:10] Speaker 02: What's the first case to recognize a historic significance rationale for disclosure? [00:20:18] Speaker 02: When did that happen? [00:20:19] Speaker 04: I think the earliest case is 1987. [00:20:21] Speaker 02: So if we were assessing things by reference to background traditions, which [00:20:30] Speaker 02: on Chief Judge Wood's theory are carried forward and incorporated into the rule. [00:20:34] Speaker 02: If we're back in 1945, pre-rule, and a court is looking at the federal common law, that court would find that notwithstanding, whatever, 200 years of grand jury tradition, there's not a single case authorizing disclosure in a case like this. [00:20:58] Speaker 04: So I think two points to make about that. [00:21:00] Speaker 04: I think certainly what the pre-rule situation would show is that district courts have discretion to lift grand jury secrecy. [00:21:09] Speaker 02: Yes, but exercised only in [00:21:14] Speaker 02: relatively narrow categories of cases and the two big ones seem to be one is to aid government criminal investigations and the other is in aid of pending or impending cases. [00:21:30] Speaker 04: I agree that I can't point you to a case that allowed disclosure for historical significance in this way. [00:21:36] Speaker 04: I think two further points to make about that. [00:21:39] Speaker 04: One, I think that might to some extent be a factor just of the degree to which grand jury proceedings were fully recorded long before the rules. [00:21:48] Speaker 04: It's not clear that they were. [00:21:50] Speaker 04: But even putting that aside, I don't think [00:21:53] Speaker 04: that there needs to have been a clear, long-standing practice of disclosures of precisely this sort in order to say that this is a permissible exercise of a court's power. [00:22:03] Speaker 04: And for that, I would just point to the Supreme Court's decision in Dietz v. Bolden about, Dietz v. Bolden, it's 2016 decision about the [00:22:14] Speaker 04: ability to recall discharged juries. [00:22:17] Speaker 04: And one of the arguments that was made there was that there's no long-standing history of recalling discharged juries, in fact, the opposite. [00:22:25] Speaker 04: And the court said, nonetheless, things have changed. [00:22:28] Speaker 04: And that sort of fact about the history of jury practice did not foreclose recognizing a court's power to recall after discharge. [00:22:42] Speaker 02: Chief Judge Wood, right, which is the best reason decision on your side is that the rule [00:22:51] Speaker 02: was enacted against a background principle of district court discretion to order disclosures. [00:23:00] Speaker 02: And the rule was intended to be preservative rather than transformational. [00:23:09] Speaker 02: And therefore this background tradition [00:23:13] Speaker 02: this background authority survives. [00:23:17] Speaker 02: And I'm not sure that's right, but even if it is right, it seems like what you're asking for here is just something wholly unlike what either the text of the rule has in mind or the background tradition has in mind. [00:23:38] Speaker 04: So I don't think it's that strange from the background tradition. [00:23:41] Speaker 04: I think it is consistent with a long history of courts disclosing, unsealing court records, admittedly in a non-grand jury context, but for the purpose of just informing [00:23:56] Speaker 04: the public about what has transpired in judicial proceedings and furthering greater public knowledge and not connected to the adjudication of particular cases. [00:24:05] Speaker 02: So I think that- You're leading pre-rural cases, so coming back, right, which is codified in a dependent cases theory. [00:24:15] Speaker 04: That's right, that is an instance of that, but I don't... That's a grand jury case. [00:24:20] Speaker 01: Yes. [00:24:21] Speaker 01: You're abstracting away from grand jury cases, and you're saying historical significance justification makes sense in a non-grand jury, or at least exists in a non-grand jury context. [00:24:31] Speaker 01: Right. [00:24:31] Speaker 01: In a grand jury context, Saccone is the principal pre-rual example, and that's obviously not a historical significance case. [00:24:38] Speaker 04: That's correct. [00:24:39] Speaker 04: So what I'd say is we have a clear pre-rual history of district court discretion over grand jury secrecy. [00:24:46] Speaker 04: And we also have a longstanding tradition of inherent authority over court's own records and history conceivably in the non-grand jury context that disclosure of such records for the purpose of [00:25:02] Speaker 04: historical interest and greater public information. [00:25:06] Speaker 02: This is your judicial records theory? [00:25:08] Speaker 04: That's right. [00:25:10] Speaker 02: Judicial records is just legal shorthand for the category of documents that would be subject to a presumptive common law right of access. [00:25:25] Speaker 02: I don't know why that would cases all the judicial records cases in the briefs are ones where [00:25:34] Speaker 02: the legal consequence of calling in a judicial record is to trigger a right of access. [00:25:40] Speaker 02: It just doesn't remotely describe the historic or continuing treatment of grand jury records to say there's a presumptive right of access but can be overcome if the government makes a case-specific showing of need for secrecy. [00:25:56] Speaker 02: The rules are exactly the opposite. [00:25:58] Speaker 04: Well, one thing I don't think fits that bill that we discussed in our brief is, for example, pre-sentence reports. [00:26:04] Speaker 04: Those are another category of records that are presumptively confidential and not just available and there is a sort of a high compelling need standard to get access for third parties to get access to pre-sentence reports. [00:26:19] Speaker 04: But as we say, there are cases that show that public disclosure, again, for purposes similar to what we're addressing here. [00:26:25] Speaker 01: So those don't come within the compass of Rule 6. [00:26:27] Speaker 01: That's right. [00:26:28] Speaker 01: And so I guess the question for us is how to deal with Rule 6. [00:26:31] Speaker 01: And just to make sure I'm mentioning your argument correctly, your argument in result is the same place that, is it Carlson, the name in the Seventh Circuit case, that Carlson gets to? [00:26:43] Speaker 01: Yes. [00:26:43] Speaker 01: But in rationale is not, right? [00:26:45] Speaker 01: Because the rationale of the Seventh Circuit in Carlson was not that the rule doesn't cover documents that the court itself possesses. [00:26:53] Speaker 01: It's that the exceptions set forth in the rule are non-exclusive. [00:26:59] Speaker 01: And so there can be other exceptions. [00:27:01] Speaker 01: And one exception could be for historical significance. [00:27:05] Speaker 01: It's a different – she doesn't have the textual analysis that you have. [00:27:09] Speaker 04: Not in detail, but I'm not sure that it actually is practically a sort of different framework or would lead to any different results. [00:27:18] Speaker 04: I think fundamentally the distinction that that decision draws is the one that we draw, which is that the degree that [00:27:28] Speaker 04: the named types of persons in 6E2 are under a type of sort of more absolute constraint in a way that the court itself is not. [00:27:37] Speaker 01: Well, here's the way I think there could be a distinction is that the way that Carlson looks at it is that, yeah, the rule actually does, insofar as the rule governs, covers disclosures even when the court itself has the documents. [00:27:50] Speaker 01: It's just that the rule doesn't set forth all the exceptions. [00:27:53] Speaker 01: Court can come up with its own exceptions. [00:27:55] Speaker 01: That's, as I understand it, the rationale of Carlson. [00:27:58] Speaker 01: And one of the exceptions, and because the court has an inherent authority to do so, and a good reason could be circumstances of historical significance. [00:28:06] Speaker 01: But we have cases, like for example, a sealed case, where there's language that indicates that insofar as disclosures can be allowed in the grand jury context, those disclosures should fit within one of the most six exceptions. [00:28:20] Speaker 01: And if that's true, then once you get the rule governing disclosures where the court itself has the documents, it becomes more difficult for you than it would be in a Carlson universe, where under Carlson, it doesn't matter if disclosures when the court itself has the documents are governed by the rule, because Carlson says the rule isn't the sum and substance of all exceptions. [00:28:39] Speaker 01: The court can find its own exceptions. [00:28:41] Speaker 01: If you've got a body of law, at least a body of statements, which we appear to have, suggesting that [00:28:46] Speaker 01: disclosures of grand jury documents have to come within one of the Rule 6 exceptions, then it's a problem. [00:28:51] Speaker 01: No? [00:28:53] Speaker 04: I guess I agree that you would have divergent results if you got to the conclusion that sort of tacitly the court itself is bound by Rule 6, Rule 62. [00:29:06] Speaker 04: Then maybe you could. [00:29:08] Speaker 04: I just don't think there's any way, as a matter of text, to get to the place that the Court itself has covered. [00:29:13] Speaker 04: It just, I mean, it clearly is not expressly, and clearly could be expressly. [00:29:18] Speaker 04: As we say, there are many rules, including rules... Rick Carlson assumes that the Court itself has covered, doesn't it? [00:29:25] Speaker 04: I'm not sure it does. [00:29:26] Speaker 04: I can see that it's not perfectly clear on this point. [00:29:31] Speaker 01: Because what was doing the driving work in Carlson was that the exceptions list is not exclusive. [00:29:36] Speaker 01: The court definitely reaches that conclusion. [00:29:40] Speaker 01: I think, correct me if I'm wrong, I think the court says the E3E exceptions, they exist, but it says may. [00:29:48] Speaker 01: And so that just tells you circumstances in which a court can disclose. [00:29:52] Speaker 01: It doesn't tell you all the circumstances in which the court can disclose. [00:29:55] Speaker 01: You can find other exceptions too, and one of them could be for purposes of historical significance. [00:30:00] Speaker 01: Now you still win under that rationale. [00:30:02] Speaker 01: It's just it seems to me it's a different rationale than the one that you're putting forward in your brief. [00:30:05] Speaker 04: It may be sort of in the precise parsing of the text be a different rationale, but I don't think it, again, I don't think it leads to different results in practice. [00:30:16] Speaker 01: It doesn't lead to different results because you still get home under that rationale, but to say that it's precise parsing of the text seems to minimize it a little bit because we have to parse the text because it's the text of the rule that we're contending with. [00:30:27] Speaker 01: And so if the Seventh Circuit's rationale is [00:30:31] Speaker 01: Rule 6 does govern court disclosures when the court itself has the documents, but the court can come up with its own exceptions. [00:30:39] Speaker 01: You still win. [00:30:40] Speaker 01: Definitely you still win. [00:30:42] Speaker 01: But if we have cases that say, wait a minute, for grand jury documents, rule 6 tells you what the exceptions are. [00:30:51] Speaker 01: There's no exceptions outside of rule 6. [00:30:53] Speaker 01: You've got to find your way home within rule 6. [00:30:55] Speaker 01: Then there's more of an obstacle for you. [00:31:01] Speaker 04: I think I agree with the premises and again think that [00:31:08] Speaker 04: that we get by under the text sort of read more narrowly, constrictively in the way that you're suggesting that this court's precedent reads it. [00:31:19] Speaker 04: So I don't think there may be some slight difference there in explanation, but I don't think it makes a difference in outcome here, and I don't see that it makes a difference in outcome in almost any situation I can imagine. [00:31:34] Speaker 04: And again, maybe I'll just sort of close on the narrowness of what we're asking for here. [00:31:41] Speaker 02: Well, so let's talk about narrowness. [00:31:44] Speaker 02: Suppose you're right on discretion. [00:31:49] Speaker 02: If you are asking for a rule that [00:31:56] Speaker 02: Grand Jury records can be disclosed 60 years after the fact when all the interests and secrecy dissipated, right? [00:32:08] Speaker 02: That's narrow and I get that. [00:32:10] Speaker 02: The problem is it's hard to justify. [00:32:13] Speaker 02: So the way you come at it is you say, well, we're outside the rule, and therefore we apply this amorphous nine factor balancing test, and we win under the test. [00:32:28] Speaker 02: I mean, I think I agree with you, you win under the test, but my main concern is the unbounded nature of just throwing everything open to a test like that. [00:32:41] Speaker 04: Right, so here I think this is not, you sort of don't have to go into this blind where you don't have to worry that I'm asking you to open Pandora's box because many other courts have opened this box and there were no calamities inside. [00:32:53] Speaker 04: Again, this has been the rule in a number of other circuits for many years. [00:32:58] Speaker 04: And the number of cases that even ask for such disclosures are rare, as the government acknowledged in its 2011 letter to the Rules Committee, where it's granted is rare. [00:33:10] Speaker 04: And the government has never suggested that in any case from any of these other circuits where these requests have been made and granted, that there has ever been an abuse of discretion or that there has ever been any sort of practical problem resulting from any of these disclosures. [00:33:25] Speaker 04: And further, that disclosures for historical interests like this have not sort of led to other types of inroads into grand jury secrecy. [00:33:36] Speaker 04: So I really think there's a clear historical track record that shows there's not a slippery slope here and that you don't have to worry about subverting grand jury secrecy generally. [00:33:47] Speaker 04: And then just another point on that, we obviously believe that [00:33:50] Speaker 04: our reading of the text is correct and that this is permissible under the rule as it exists. [00:33:56] Speaker 04: But as the episode in 2011, 2012 shows, this is a subject that can be addressed through rulemaking. [00:34:06] Speaker 04: So if what we believe is the correct reading of the rule turns out to have problematic results of some sort, that's not frozen in amber. [00:34:15] Speaker 04: We're not asking you to make a constitutional rule. [00:34:17] Speaker 04: and the Rules Committee could address this. [00:34:20] Speaker 04: And again, I do think it's important to stress again that the Rules Committee has addressed this, looked at this exact issue, and determined that no revision to the rule was necessary because courts were already reasonably exercising their inherent authority. [00:34:36] Speaker 04: I'm way over my time, so I will sit down for now. [00:34:40] Speaker 04: Thank you. [00:34:52] Speaker 03: Good morning, Your Honors. [00:34:54] Speaker 03: I'd like to begin by going directly to where the Court was addressing these questions about the exceptions themselves. [00:35:01] Speaker 02: Can we start on redressability and hopefully clear that up? [00:35:06] Speaker 02: Do you know when the records were transferred from DOJ to the archives? [00:35:12] Speaker 03: I don't know at what time those records were transferred. [00:35:15] Speaker 02: Do you have a position on whether the archivist or DOJ currently controls the records? [00:35:23] Speaker 03: I mean, it's fair to say that the Archives holds the records on behalf of the Department. [00:35:29] Speaker 02: I mean, the Department still has access to those records. [00:35:39] Speaker 02: by operation of that law and get these records put out? [00:35:43] Speaker 03: Certainly, if there was an order directed to the Attorney General to obtain and disclose these records, there would be no obstacle to the Attorney General doing that. [00:35:51] Speaker 03: We would be able to disclose these records if we were so ordered. [00:35:54] Speaker 02: If we thought it necessary, would the archivist have any opposition to being added as a party so we could just reach the merits and not worry about this complication? [00:36:07] Speaker 03: I would have to speak with the archivist, but I assume the answer would be no. [00:36:10] Speaker 03: I mean, they're certainly aware of these cases and have been involved in them. [00:36:14] Speaker 03: But turning to the text of the rule, Your Honor, the Rule 6E, 3E exceptions lay out the only circumstances in which a district court may authorize disclosure of grand jury materials. [00:36:25] Speaker 03: And that's clear both from the text of the rule, the structure of the rule, and this court's decisions and the Supreme Court's decisions addressing those exceptions. [00:36:33] Speaker 01: So it didn't seem like the government thought that at the time of Haldeman. [00:36:35] Speaker 03: Your Honor, that's certainly the case that the government argued both, that the proceeding that issued there fell within one of the Rule 60 exceptions, and that, and took a different, had an alternative argument as well, but that case proceed. [00:36:51] Speaker 01: And you flipped the order, because the argument that you put second actually was the primary argument that the government made, right? [00:36:56] Speaker 03: That's true, Your Honor, but that case also precedes Congress's direct enactment of the unless these rules provide otherwise language in 1962 and 1977. [00:37:05] Speaker 03: It precedes Bank of Nova Scotia, it precedes Carlisle, and it precedes this Court's decisions in both of the NRAE-sealed cases in 1986 and in 2001. [00:37:14] Speaker 03: And at least since the time of NRAE Craig... You're not taking the position then. [00:37:18] Speaker 01: If we thought Haldeman [00:37:20] Speaker 01: It was a non-bank decision. [00:37:21] Speaker 01: If we thought Haldeman stood for the proposition that Rule 6's exceptions don't occupy the field in terms of circumstances in which your injury documents can be disclosed, you're not taking the position of subsequent double binding on us, or are you? [00:37:35] Speaker 03: No, in 1977 it was clear that district courts did not have inherent authority to disclose grand jury records in circumstances not covered by the rule. [00:37:43] Speaker 03: But if there's any doubt on that question, it has been removed since the time of that decision. [00:37:47] Speaker 03: In any event, Haldeman is a mandamus petition that was briefed, argued, and decided in three days and contains no reasoning that would govern the outcome of this case or any other. [00:37:58] Speaker 01: I don't know that you could say it contains no reasoning because it says [00:38:02] Speaker 01: First of all, it allows the disclosure of the documents to the House Judiciary Committee. [00:38:05] Speaker 01: That's correct, Your Honor. [00:38:06] Speaker 01: And in explaining why the argument that Rule 6 would foreclose it doesn't bar the resolution that the on-bank court reached, it says it's substantially for the reasons of something like that set forth by the district court. [00:38:19] Speaker 03: It says, yes, that it was satisfied with the district court's treatment of those questions. [00:38:22] Speaker 03: And the district court's treatment of those questions is itself alternative. [00:38:27] Speaker 03: It offers both the argument that the materials requested fall within an exception to the rule and a broader argument about inherent authority. [00:38:35] Speaker 03: So again, there's nothing to be drawn from Haldeman itself. [00:38:39] Speaker 03: And again, even if you thought there was something in there that maybe this court thought at that time, [00:38:47] Speaker 03: there might be something to that argument. [00:38:49] Speaker 03: There shouldn't be any doubt at this point, particularly after the Supreme Court's decisions and this Court's subsequent decisions in the Enrique Asil case in 1986 and in 2001, both of which made clear, as you were pointing out earlier, that this Court has viewed Rule 6E's exceptions as exclusive. [00:39:05] Speaker 03: which fits entirely with the text of the rule because the exceptions themselves are directed at the court. [00:39:11] Speaker 03: The word may exist to emphasize the discretion the district court has when it considers a request that falls within the text of the rule. [00:39:19] Speaker 01: So under your view of the rule, I take it it's the case that no matter how long ago the documents, the grand jury proceedings completed, even if you have an affidavit submitted by the subject of the grand jury inquiry that says, [00:39:32] Speaker 01: I actually suppose that they're alive, but barely, at the very late stages, not to be too graphic about it. [00:39:39] Speaker 01: And they submit an affidavit, and it says, you know, my interests are the interests that would be the important stakeholder interests here. [00:39:46] Speaker 01: I'm fine with the documents being disclosed. [00:39:49] Speaker 01: So there's no cognizable reason not to disclose the documents. [00:39:53] Speaker 01: Your argument would be that the rule precludes a district court from releasing documents that nobody thinks should be without. [00:40:00] Speaker 03: Yes, Your Honor, and I would also point out that it's not clear that the judgment that there's no cognizable interest is one that it's the district court's place to make or that's one that's so easy to draw. [00:40:12] Speaker 03: It's entirely possible to imagine a robust policy debate about at what point grand jury secrecy should expire, for what purposes, whose interests are being protected. [00:40:23] Speaker 01: The department itself raised those concerns with the advisory committee. [00:40:25] Speaker 01: and when it submitted the proposed amendment to the rule in 2011. [00:40:30] Speaker 01: And I think you don't disagree that when the advisory committee said, we're not going to accept your suggestion, the rationale of the advisory committee was we don't need to because courts have an inherent authority and courts' inherent authority has been exercised responsibly and we're okay with the status quo. [00:40:48] Speaker 03: Your Honor, the minutes of that discussion indicate that at least some people may have taken that view. [00:40:54] Speaker 03: There were also concerns expressed about the substance of the department's proposal, and there was also a view that perhaps this wasn't a significant issue because it was arising infrequently. [00:41:03] Speaker 03: But I would point out, Your Honor, just in the last – in the time this case has been pending, three additional petitions have been brought into district court seeking disclosure under inherent power authority – or theory. [00:41:14] Speaker 03: And I'm aware of at least one other petition that is pending asserting the same thing that was filed before this appeal. [00:41:20] Speaker 03: So we're starting to see these petitions with increasing frequency, and the reality is that [00:41:26] Speaker 03: The rule itself governs here. [00:41:29] Speaker 03: What the advisory committee thought or didn't think isn't relevant to what the rule itself says. [00:41:34] Speaker 01: But just to understand what you think the advisory committee thought, your brief says that the advisory committee apparently believing that district courts had appropriately exercised their inherent authority in addressing petitions for historically interesting grand jury materials. [00:41:47] Speaker 03: Right, so apparently believing that the decisions that had come out had come out correctly in terms of both [00:41:53] Speaker 03: The decision to disclose, which is a separate question and whether or not there was an inherent or in the first place. [00:41:58] Speaker 03: Certainly some members of the committee apparently believe that. [00:42:01] Speaker 03: But your honor, the advisory committee that considered that proposal is only the first step in a long process for a rule to be enacted, which at its conclusion includes. [00:42:09] Speaker 03: the Supreme Court and Congress, and all of the indications we have from those bodies are that they view these exceptions as exclusive. [00:42:16] Speaker 03: And so I would point out as well that both the majority and the descending Carlson declined to place any weight on the advisory committee's minutes, and I think this Court should follow the same practice. [00:42:25] Speaker 03: I mean, it's essentially, you know, failed legislative history, and it's not something that's deserving of weight in interpreting the text of the rule itself. [00:42:32] Speaker 00: Council, these three or four petitions that have been filed during the pendency of this matter, how many invoke an historical justification? [00:42:41] Speaker 03: I believe all of them. [00:42:45] Speaker 03: Certainly at least three of them. [00:42:46] Speaker 00: Do they all post-Date Carlson? [00:42:50] Speaker 03: Three of them do. [00:42:51] Speaker 03: I'm not sure. [00:42:52] Speaker 03: I believe the fourth one may have been filed before Carlson, but in close proximity. [00:42:57] Speaker 02: What's wrong? [00:42:58] Speaker 02: Assuming there's discretion, what's so horrible [00:43:06] Speaker 02: to exercise it responsibly and you could build into the test a strong presumption against disclosure and just say, look, at some point it just becomes silly to worry about records that implicate things regarding people who were long dead. [00:43:29] Speaker 03: Your Honor, the Department doesn't disagree that at some point there should be a time when grand jury secrecy expires and these records can become public, but that doesn't change the fact that a district court hasn't been given the authority to make those decisions and those judgments in the first instance, because again... You're putting all your eggs in the basket of Rule 6 ties our hands. [00:43:50] Speaker 03: Well, that, Your Honor, but also the point is that the decision about under what circumstances and when and the conditions that should be placed on that disclosure are judgments for Congress or the Supreme Court to make, not district courts on an ad hoc basis. [00:44:03] Speaker 03: I mean, you can imagine discussions about the value of these materials, which materials are sufficiently historic or not, and also whether, for example, in a historically significant case, it might have an effect on the candidness of grand jury witnesses if they knew that their testimony might subsequently be disclosed. [00:44:19] Speaker 03: The department's proposal in 2011 would have had the archivist take the first cut at determining which records were sufficiently historically important. [00:44:35] Speaker 03: to warrant disclosure or warrant retention by the government in the first place and then after 30 years would have given limited discretion to district courts to consider petitions for disclosure and then the materials would have presumptively become public after 75 years. [00:44:52] Speaker 03: Now, whether the same proposal would be put forward today or considered today, I [00:44:57] Speaker 03: I can't say, but that's the kind of rule you might imagine the advisory committee considering or enacting if it were to take up this issue and address the question directly. [00:45:10] Speaker 01: But that's what would have given a lot of discretion to district courts. [00:45:12] Speaker 01: Yeah, but discretion. [00:45:13] Speaker 03: Right, but discretion that reflected the considered policy judgment of the rules committees, the Supreme Court, and Congress. [00:45:20] Speaker 03: And that is exactly what we're saying needs to happen here in order for these records to be disclosed. [00:45:27] Speaker 01: What are the Supreme Court cases that you're relying on that you say [00:45:32] Speaker 01: don't allow for exceptions outside the content of the rule? [00:45:36] Speaker 03: Well, Your Honor, just that the Supreme Court has clearly understood these exceptions to be exclusive. [00:45:40] Speaker 03: When this begins, you look at Pittsburgh Plate Glass, which says any disclosure of grand jury records must occur with, you know, is governed by Rule 6E. [00:45:48] Speaker 03: Abbott and Associates repeat similar language. [00:45:51] Speaker 03: Bagot talks about how the exceptions reflect Congress's judgment that not every beneficial purpose or even every valid governmental purpose justifies disclosure. [00:46:00] Speaker 01: It just seems like in all those cases, [00:46:02] Speaker 01: They came up in a context in which it's clear that the rule had language that pertained to the matter at hand. [00:46:12] Speaker 01: And so the question never even came up. [00:46:15] Speaker 01: What about the disclosure that isn't coming up within the contents of the rule? [00:46:19] Speaker 01: It's coming up somewhere else. [00:46:21] Speaker 03: Because I think it's important to recognize that this flows from the tradition of grand jury secrecy. [00:46:26] Speaker 03: The Supreme Court's cases have always emphasized that they want a clear statement from Congress and that you should interpret these exceptions [00:46:33] Speaker 03: more or less narrowly to ensure that grand jury secrecy is preserved. [00:46:36] Speaker 03: Again, Abbott and Associates makes this point, Sells Engineering makes this point, that there is an expectation that these materials will remain secret and that it should only be lifted, that secrecy should only be lifted in limited ways when a party demonstrates a particularized need and that those cases, you're right, have always been litigated within the confines of the rule precisely because of [00:46:58] Speaker 03: that background principle, and there's nothing in the text of Rule 6E that suggests that that background principle was intended to be changed when it was enacted in 1946. [00:47:08] Speaker 03: In fact, the committee emphasized it was codifying the traditional rule of grand jury secrecy, including some exceptions, and then subsequent amendments have made that clear. [00:47:16] Speaker 03: The level of detail and sophistication of the exceptions emphasizes the point. [00:47:21] Speaker 02: On your view, what are we to make? [00:47:26] Speaker 02: the point that the secrecy obligation is imposed on very specific individuals, but the district court is not one of them. [00:47:38] Speaker 03: Your Honor, the point is that the district court is not privy to grand jury matters unless and until a petition is filed or some ancillary proceeding occurs. [00:47:53] Speaker 03: And so the reason the rule doesn't list the district court in Rule 62 is precisely because it doesn't have access to these materials. [00:48:00] Speaker 03: It isn't aware of these secrets. [00:48:01] Speaker 03: until some ancillary proceeding occurs. [00:48:04] Speaker 03: And when that occurs, separate provisions of the rule govern the district court's disposition of those materials. [00:48:11] Speaker 03: So, Your Honor, that's Rule 65 and 66 specifically cover those situations. [00:48:15] Speaker 03: So there's nothing to be [00:48:17] Speaker 03: drawn from that fact, other than that the district court's role here is to be purely reactive. [00:48:22] Speaker 03: It's not an independent player in the system. [00:48:24] Speaker 03: The grand jury's independence ensures that that's the case. [00:48:28] Speaker 03: And for similar reasons, Your Honor, part of the reason it doesn't make sense to think about these in terms of judicial records or executive branch records or some other records, and the reason the rule doesn't speak in terms of records, [00:48:40] Speaker 03: is that the rule is designed to comprehensively govern grand jury secrecy, no matter who has the relevant information, because many different players can have it. [00:48:49] Speaker 03: The grand jurors themselves, who are private citizens, obviously know about matters occurring before the grand jury, the prosecutor, other individuals whom the prosecutor is able to share that information with, and then in the context of one of these proceedings, the district court itself. [00:49:02] Speaker 03: So the reason why it doesn't make sense to talk about these in terms of the judicial records or the executive branch records is precisely because the rule is designed to cover the information regardless of where it's held. [00:49:14] Speaker 01: So you mentioned sales engineering. [00:49:15] Speaker 01: Can I just ask you a question about that? [00:49:16] Speaker 01: So one part of sales engineering, the court [00:49:21] Speaker 01: analyzes the way the advisory committee dealt with a rule and it quotes the advisory committee notes and it characterizes the advisory committee notes as potent evidence and then it says the advisory committee's explanation strongly suggests a particular interpretation. [00:49:37] Speaker 01: So if that's all true, is that type of analysis something that we can feel appropriate in bringing to bear on the advisory committee's actions in 20 with respect to the 2011 proposal? [00:49:49] Speaker 03: No, Your Honor, because that addresses the advisory committee's notes, if I'm recalling correctly, on actually enacted [00:49:56] Speaker 03: And in those circumstances, the Supreme Court has recognized, yes, those notes deserve considerable weight, but where you have literally minutes of a discussion that occurred in the course of declining to pass forward a proposal, there's nothing additional to be drawn from sales engineering on that point. [00:50:13] Speaker 03: If anything, the advisory committee notes that we do have addressing grand jury secrecy emphasize the norm of non-disclosure. [00:50:24] Speaker 03: Rule 61, for example, when it was enacted in 1979, the advisory committee specifically said that the rule did not change the circumstances in which disclosure of grand jury records was permitted. [00:50:35] Speaker 03: In 1946, we have the language about how we're codifying the traditional rule of grand jury secrecy, which encompasses only limited exceptions that the courts previously were able to lift that secrecy. [00:50:46] Speaker 03: So the only invocations we get from the advisory committee notes on the actually enacted rule favor our position. [00:50:54] Speaker 01: Can I take you off that track to a different track? [00:50:58] Speaker 01: I'm interested in what we're supposed to do with Haldeman. [00:51:04] Speaker 01: In particular, if we look through the on-bank court's opinion on Haldeman to Judge Sirica's analysis in the district court, I understood you to be saying, [00:51:11] Speaker 01: There's alternate rationales there. [00:51:12] Speaker 01: One of them is district court inherent authority. [00:51:15] Speaker 01: And another one of them is that the rule itself covers the disclosure. [00:51:20] Speaker 01: And I take it that would mean that the disclosure to the House Judiciary Committee is a disclosure that's preliminary to a judicial proceeding? [00:51:27] Speaker 01: That's correct, Your Honor. [00:51:28] Speaker 01: Is that the rationale under which we do that? [00:51:29] Speaker 01: And where in Judge Cervica's analysis does he adopt that rationale? [00:51:35] Speaker 03: Ron, there's some language in there where he's discussing Rule 6E, and he says that it would be truly incredible if you could disclose this material for purposes of a police disciplinary proceeding. [00:51:46] Speaker 03: And he cites a few other bar disciplinary actions and similar proceedings, but not for the purpose for which it's sought here. [00:51:53] Speaker 03: And so I think Judge Sravicka's opinion, I acknowledge, is difficult to parse. [00:51:58] Speaker 03: But it's certainly not the case that there's a clear rationale that would [00:52:04] Speaker 00: to demonstrate what Haldeman said. [00:52:07] Speaker 00: In answer to Judge McGowan's question, the government said quite clearly that its position in favor of disclosure did not depend upon the nature of the proceedings in the Congress. [00:52:19] Speaker 03: Your Honor, I believe in response to a questioned oral argument, the government did say, and Judge McKinnon in his separate opinion in Holderman, emphasized that he took into account the fact that the government had represented that this proceeding fell within the rule. [00:52:34] Speaker 01: So, again... So that was the dissent. [00:52:36] Speaker 01: So then, and what we care about is what the majority thought, and what the majority thought was what Judge Sirica thought, and then that brings us back to what Judge Sirica thought. [00:52:45] Speaker 01: And on that, [00:52:47] Speaker 01: The part of the opinion that you're talking about, I know we're down on the weeds here, but we have to look into the weeds in order for us to understand what work the on-bank court disposition in Haldeman is doing. [00:52:57] Speaker 01: On that, the way Judge Sirica described it, he does say, [00:53:03] Speaker 01: that in these situations that, you know, bar disciplinary things, and the broadest one at that point was this case of Beagy that was a judge-friendly opinion. [00:53:12] Speaker 01: And the way Judge Sirica describes it is that it's a case that involved circumstances that are, quote, wholly apart from judicial proceedings. [00:53:19] Speaker 01: Close quote. [00:53:20] Speaker 01: which makes it sound like the rationale was that even though the disclosure has nothing to do with judicial proceedings, it's still a disclosure that a court can authorize. [00:53:30] Speaker 03: Well, Your Honor, I mean, Judge Sirica, as I recall, is discussing cases in which a disclosure has been ordered in connection with whatever other court was ordering the disclosure. [00:53:41] Speaker 03: found to be a judicial proceeding, whether or not Judge Sirica would have reached the same result in the first instance is a somewhat separate question from whether or not... Is that what Judge Friendly found in Biagi? [00:53:55] Speaker 03: Biagi is a somewhat unusual case because there you have, again, you have both the government and a witness before the grand jury essentially waiving the protections of Rule 6E and this court has in [00:54:08] Speaker 03: somewhat analogous circumstances in Raynorth or the Judith Miller cases recognize that where there are, where other information has already become public such that, that grand jury information may become public such that it loses its protected character under Rule 6E. [00:54:25] Speaker 01: And so... I'm not understanding that because I thought that's kind of the hypothetical I started off the entire argument with, which is if everybody buys into the notion that there's no reason to have secrecy anymore, [00:54:35] Speaker 01: does the rule prevent disclosure? [00:54:37] Speaker 01: And I thought your position was no, it still prevents disclosure because there's a set of exceptions that the disclosure has to follow. [00:54:44] Speaker 03: Your Honor, certainly I'm not saying that Biagi was correctly decided. [00:54:48] Speaker 03: I'm just saying that there's a rationale in Biagi that is different, again, from what you see here, which is the assertion that no matter what purpose [00:54:56] Speaker 03: the individual is seeking these records for, the district court is permitted to entertain that petition and potentially exercise its discretion to disclose those records. [00:55:08] Speaker 03: So again, even if you think there are sort of these extremely narrow situations in which some inherent authority might exist, which again, we don't believe there are, but even if you thought that, [00:55:18] Speaker 03: What's being sought here is something fundamentally different. [00:55:20] Speaker 01: But did Judge Sirica think that in his opinion? [00:55:22] Speaker 01: Because once he thinks that there's, even if it's a narrow sliver, if there's a narrow sliver outside the rule, then the rule's not doing the work. [00:55:29] Speaker 01: then district courts have authority to go outside the rule. [00:55:32] Speaker 01: And then you may have some very good arguments about how that non-rule authority for disclosure has to be very narrowly cabined given the presumption of grand jury secrecy and all sorts of considerations that would require courts to be very, very careful in exercising that discretion. [00:55:48] Speaker 01: But once we're outside the rule, then it seems like your argument is in a different place. [00:55:53] Speaker 03: Your Honor, again, yes, we have sort of both arguments that we've advanced here, because we do think the rule fully controls, but we also believe that if you don't think that, then a disclosure of this nature is not within a court's inherent power to begin with. [00:56:06] Speaker 02: So if we're outside the rule, what is the non-rule sixth principle of law? [00:56:22] Speaker 02: that would govern this case under which the result would be non-disclosure. [00:56:31] Speaker 03: Well, Your Honor, in terms of what we govern in this case, the question would be whether inherent power extends to making these kinds of judgments. [00:56:38] Speaker 03: And there's nothing in the historical practice, there's nothing in the nature of inherent power itself, which exists to protect judicial proceedings, the proceeding before the court, and the court's own practices that would enable this kind of disclosure. [00:56:55] Speaker 02: So the historic practice [00:56:57] Speaker 02: and the disconnect to the conceptual justification of inherent authority, which is to facilitate adjudication cases. [00:57:07] Speaker 03: That's right, Your Honor, and Williams states this very nicely, because Williams points out that it's there, that the inherent power exists to improve the truth-finding process of the trial or to prevent parties from taking advantage of being able to violate rules [00:57:23] Speaker 03: outside of the context of the courtroom or the trial itself. [00:57:28] Speaker 03: And so those kinds of authorities are exactly what we see generally invoked as inherent power. [00:57:35] Speaker 03: A policy judgment about what kinds of social purposes justify disclosure, the beneficial purposes that Baggett talks about are simply outside of that kind of power. [00:57:45] Speaker 01: And what interests would be served by not allowing disclosure here? [00:57:48] Speaker 03: Your Honor, the interest that we have is in ensuring that the proper bodies are able to make these decisions. [00:57:55] Speaker 03: This is simply not a judgment that courts are empowered to make. [00:57:58] Speaker 01: This is a judgment of... Right, so I understand that, and I don't mean to minimize it at all, but I do understand that argument that we ought to... [00:58:04] Speaker 01: cabin institutions within their properly defined roles. [00:58:09] Speaker 01: That just gets back to whether the rule governs, because obviously you don't take the position that there's some kind of extant problem with allowing district courts to monitor disclosures in this area, because that's exactly what the Department proposed in 2011. [00:58:20] Speaker 01: So I understand the interest in making sure that the rules, that bodies operate within the constraints of rules that are duly promulgated. [00:58:28] Speaker 01: That makes sense to me. [00:58:30] Speaker 01: I'm just wondering, if we just put that one to one side for a second, what's the interest that would be served by not allowing disclosure here just vis-a-vis what we typically talk about with grand jury secrecy? [00:58:42] Speaker 01: Why? [00:58:43] Speaker 03: Well, Your Honor, as I pointed out earlier, [00:58:45] Speaker 03: It's entirely possible that you could have individuals who, if they know that their grand jury testimony may be disclosed at some later time, may or may not be as candid as they would have been. [00:58:56] Speaker 03: But in this case? [00:58:57] Speaker 03: Well, Your Honor, in this case, the fact that there might be a disclosure here is going to inform potentially future grand jurors. [00:59:05] Speaker 01: You can still win even if you think there's not a great interest that would stand in the way of disclosure. [00:59:09] Speaker 01: That's correct. [00:59:09] Speaker 01: But I'm just wondering if you do think there's an interest that stands in the way [00:59:13] Speaker 03: Your Honor, the fact that we're having this discussion and trying to weigh that interest illustrates why that's not a decision that district courts should be making on an ad hoc basis in the first place. [00:59:23] Speaker 03: The fact that we're having this discussion emphasizes that it's a policy judgment that ought to be made either through the rulemaking process with the Supreme Court or by Congress itself, just as it has made that judgment multiple times in the past. [00:59:36] Speaker 01: Thank you, Your Honor. [00:59:45] Speaker 04: I'll try to keep this much briefer. [00:59:47] Speaker 04: Just a few points, starting with the sort of text and structure of the rule and the cases that have interpreted it. [00:59:51] Speaker 04: So on Haldeman, I think the passage that you were discussing, Judge Sharika, about if it can be disclosed for these other reasons, wouldn't it sort of be crazy to think it can't be disclosed for this purpose? [01:00:06] Speaker 04: I think that is an indication of Judge Sharika noting that it is not authorized [01:00:11] Speaker 04: that the disclosure he was doing was not authorized by the rule. [01:00:13] Speaker 04: And it was a sort of, you know, a sort of absurdity argument that, you know, even though this is outside the rule, it just can't be that I'm not allowed to do this. [01:00:28] Speaker 02: in the opposite direction, right? [01:00:31] Speaker 02: Henry sealed this post-Holgaven bag of Douglas Oil cells. [01:00:37] Speaker 02: That's true, but... So we sort of have, you know, one muddy precedent pointing one way and others arguably pointing another. [01:00:45] Speaker 02: I think the takeaway that this issue really is open to us and not controlled, but... [01:00:54] Speaker 04: I think the resolution lies in the textual argument that we've put forward here that there is a distinction between disclosures that are being made by the people specifically enumerated in 6E2. [01:01:12] Speaker 04: And again, to sort of tie that back into Haldeman, again, this textual argument is the argument that the government made in Haldeman. [01:01:19] Speaker 04: And just in passing, I should note, it's also the argument that Judge Howell recently put forth in a recent decision of hers. [01:01:28] Speaker 04: So I don't think this is sort of a kooky out-of-left-field argument. [01:01:32] Speaker 04: I think it is the plain text, and it does help. [01:01:35] Speaker 04: make some sense of how all these decisions fit together. [01:01:39] Speaker 04: Just quickly on Biagi, Judge Friendly is very clear that he is not within the text of Rule 6E. [01:01:47] Speaker 04: And the fact that I don't think it can be explained away as a waiver case, because that is not within 6E. [01:01:55] Speaker 04: And the whole point for disclosure there was that Judge Friendly felt that [01:02:02] Speaker 04: the witness had not accurately disclosed what occurred before the grand jury. [01:02:05] Speaker 04: It was to reveal something that had not been revealed that was the justification for his decision in that case. [01:02:11] Speaker 02: The tag phrase, as I recall, was exceptional circumstances, right? [01:02:16] Speaker 02: Yes. [01:02:17] Speaker 02: Which seems pretty narrow. [01:02:20] Speaker 02: And very different from we have the rule or in the alternative we have a nine factor balancing test. [01:02:28] Speaker 04: Well, I think it speaks to how heavily those factors have to weigh for you to get disclosure when you're in a circumstance not governed by the rule. [01:02:38] Speaker 01: I mean, you're fine with accessible circumstances, I think, right? [01:02:43] Speaker 01: Yes. [01:02:43] Speaker 01: You're fine with an accessible circumstances test. [01:02:45] Speaker 01: You just think these are accessible circumstances. [01:02:46] Speaker 04: That's right. [01:02:47] Speaker 04: And it is the exceptional circumstances that undergirds the decisions of the courts that have allowed for disclosure in historical. [01:02:56] Speaker 02: What's the exceptional circumstance here? [01:02:59] Speaker 02: The passage of time? [01:03:01] Speaker 04: It's a combination of the past. [01:03:02] Speaker 02: It's a policy argument. [01:03:03] Speaker 02: It just doesn't seem very exceptional. [01:03:05] Speaker 04: Oh, I think part of the exceptional just has to be that the nature of the underlying case whose records you're trying to get has to be exceptional. [01:03:11] Speaker 04: If you're trying to get access to the grand jury records of a mugging that occurred in DC in 1956, I don't think you'd get that. [01:03:20] Speaker 01: I think the threshold is do you have a case that's of- You don't think President Eisenhower would have been alerted to that mugging? [01:03:25] Speaker 04: Probably not. [01:03:27] Speaker 04: I don't think J. Edgar Hoover would be keeping an eye on it. [01:03:29] Speaker 04: And I don't think it would be the continued subject of historical and fictional interest today. [01:03:35] Speaker 04: And on this point, I think the district court was clearly with us that this is the type of case that is appropriate for disclosure. [01:03:43] Speaker 04: And we think that's exactly right. [01:03:46] Speaker 04: And I think the government has [01:03:48] Speaker 04: has basically conceded that there is no sort of case-specific reason not to disclose these records, and we think that's right. [01:03:54] Speaker 04: So we would request that this court affirm that the district court has this type of authority and remand this case to allow these records to be released. [01:04:05] Speaker 04: There are no further questions. [01:04:06] Speaker 01: Thank you. [01:04:07] Speaker 01: Thank you, counsel. [01:04:07] Speaker 01: Thank you, counsel. [01:04:08] Speaker 01: The case is submitted. [01:04:09] Speaker 01: Mr. Phillips, you are appointed by the court to present arguments in support of Mr. McKeever's position in the court. [01:04:15] Speaker 01: Thank you for your able assistance. [01:04:19] Speaker 06: Stand, please.