United States Court of Appeals, District of Columbia Circuit
Stuart A. McKeever, Appellant
William P. Barr, Attorney General, Appellee
September 21, 2018
from the United States District Court for the District of
Columbia (No. 1:13-mc-00054)
E. Phillips, appointed by the court, argued the cause for
appellant as amicus curiae in support of appellant. With him
on the briefs were Roman Martinez and Nathanael D.S.R.
Porembka, appointed by the court.
A. McKeever, pro se, was on the brief for appellant.
C. Tayrani was on the brief for amicus curiae Legal Scholars
in support of appellant.
Hinshelwood, Attorney, U.S. Department of Justice, argued the
cause for appellee. With him on the brief was Jessie K. Liu,
U.S. Attorney, and Michael S. Raab and Mark R. Freeman,
Attorneys. Elizabeth J. Shapiro, Attorney, entered an
Before: Srinivasan and Katsas, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
Ginsburg. Senior Circuit Judge
Stuart A. McKeever appeals an order of the district court
denying his petition to release grand jury records from the
1957 indictment of a former agent of the Federal Bureau of
Investigation, which McKeever sought in the course of his
research for a book he is writing. The district court,
lacking positive authority, asserted it has inherent
authority to disclose historically significant grand jury
matters but denied McKeever's request as overbroad. On
appeal, the Government argues the district court does not
have the inherent authority it claims but rather is limited
to the exceptions to grand jury secrecy listed in Federal
Rule of Criminal Procedure 6(e).
agree with the Government. Accordingly, we affirm the order
of the district court denying McKeever's petition for the
release of grand jury matters.
Columbia University Professor Jesús de Galíndez
Suárez disappeared from New York City. News media at
the time believed Galíndez, a critic of the regime of
Dominican Republic dictator Rafael Trujillo, was kidnapped
and flown to the Dominican Republic and there murdered by
Trujillo's agents. Witness Tells of Galindez
Pilot's Death, N.Y. Times (Apr. 6, 1964); Dwight D.
Eisenhower, The President's News Conference of April 25,
1956, in Public Papers of the Presidents of the United States
440-41 (1956). To this day, the details of
Galíndez's disappearance remain a mystery.
McKeever has been researching and writing about the
disappearance of Professor Galíndez since 1980. In
2013 McKeever petitioned the district court for the
"release of grand jury records in the Frank case,"
referring to the 1957 investigation and indictment of John
Joseph Frank, a former FBI agent and CIA lawyer who later
worked for Trujillo, and who McKeever believed was behind
Galíndez's disappearance. The grand jury indicted
Frank for charges related to his failure to register as a
foreign agent pursuant to the Foreign Agents Registration Act
of 1938 but never indicted him for any involvement in
Galíndez's murder. See Frank v. United
States, 262 F.2d 695, 696 (D.C. Cir. 1958).
district court asserted it has "inherent supervisory
authority" to disclose grand jury matters that are
historically significant, but nevertheless denied
McKeever's request after applying the multifactor test
set out In re Craig, 131 F.3d 99, 106 (2d Cir.
1997). Although several of the nine non-exhaustive factors
favored disclosure, the district court read McKeever's
petition as seeking release of all the grand jury
"testimony and records in the Frank case," which it
held was overbroad. McKeever duly appealed.
review de novo the district court's assertion of inherent
authority to disclose what we assume are historically
significant grand jury matters. Cf. United States v.
Doe, 934 F.2d 353, 356 (D.C. Cir. 1991). Because we hold
the district court has no such authority, we need not
determine whether it abused its discretion in denying
McKeever's petition as overbroad.
Supreme Court has long maintained that "the proper
functioning of our grand jury system depends upon the secrecy
of grand jury proceedings." Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 218 (1979). That
secrecy safeguards vital interests in (1) preserving the
willingness and candor of witnesses called before the grand
jury; (2) not alerting the target of an investigation who
might otherwise flee or interfere with the grand jury; and
(3) preserving the rights of a suspect who might later be
exonerated. Id. at 219. To protect these important
[b]oth the Congress and [the Supreme] Court have consistently
stood ready to defend [grand jury secrecy] against
unwarranted intrusion. In the absence of a clear indication
in a statute or Rule, we must always be reluctant to conclude
that a breach of this secrecy has been authorized.
United States v. Sells Engineering, Inc.,
463 U.S. 418, 425 (1983).
have said before, Federal Rule of Criminal Procedure 6(e)
"makes quite clear that disclosure of matters occurring
before the grand jury is the exception and not the rule"
and "sets forth in precise terms to whom, under what
circumstances and on what conditions grand jury information
may be disclosed." Fund of Constitutional Gov't
v. Nat'l Archives & Records Serv., 656 F.2d 856,
868 (D.C. Cir. 1981). The full text of Rule 6(e) is
reproduced in the Appendix. Of particular relevance here,
Rule 6(e)(2)(B) sets out the general rule of grand jury
secrecy and provides a list of "persons" who
"must not disclose a matter occurring before the grand
jury" "[u]nless these rules provide
otherwise." Rule 6(e)(3) then sets forth a detailed list
of "exceptions" to grand jury secrecy, including in
subparagraph (E) five circumstances in which a "court
may authorize disclosure ... of a grand-jury matter." As
McKeever does not claim his request comes within any
exception, the question before us is whether the list of
exceptions is exhaustive, as the Government argues.
agree with the Government's understanding of the Rule.
Rule 6(e)(2)(B) instructs that persons bound by grand jury
secrecy must not make any disclosures about grand jury
matters "[u]nless these rules provide otherwise."
The only rule to "provide otherwise" is Rule
6(e)(3). Rules 6(e)(2) and (3) together explicitly require
secrecy in all other circumstances. See Andrus v. Glover
Constr. Co., 446 U.S. 608, 616-17 (1980) ("Where
Congress explicitly enumerates certain exceptions to a
general prohibition, additional exceptions are not to be
implied, in the absence of evidence of a contrary legislative
the list of enumerated exceptions is so specific bolsters our
conclusion. For example, the first of the five discretionary
exceptions in Rule 6(e)(3)(E) permits the court to authorize
disclosure of a grand jury matter "preliminarily to or
in connection with a judicial proceeding." Rule
6(e)(3)(E)(i). The second exception allows for disclosure
"at the request of a defendant who shows that a ground
may exist to dismiss the indictment because of a matter that
occurred before the grand jury." Rule 6(e)(3)(E)(ii).
The other three exceptions provide that a court may authorize
disclosure to certain non-federal officials "at the
request of the government" to aid in the enforcement of
a criminal law, Rule 6(e)(3)(E)(iii)-(v); those provisions
implicitly bar the court from releasing materials to aid in
enforcement of civil law. Each of the exceptions can clearly
be seen, therefore, as the product of a carefully considered
policy judgment by the Supreme Court in its rulemaking
capacity, and by the Congress, which in 1977 directly enacted
Rule 6(e) in substantially its present form. See Fund for
Constitutional Gov't, 656 F.2d at 867. In
interpreting what is now Rule 6(e)(3)(E)(i), for example, the
Supreme Court stressed that the exception "reflects a
judgment that not every beneficial purpose, or even every
valid governmental purpose, is an appropriate reason for
breaching grand jury secrecy." United States v.
Baggot, 463 U.S. 476, 480 (1983).
Government emphasizes, McKeever points to nothing in Rule
6(e)(3) that suggests a district court has authority to order
disclosure of grand jury matter outside the enumerated
exceptions. The list of exceptions in Rule 6(e)(3) does not
lead with the term "including," nor does it have a
residual exception. Cf., e.g., Fed.R.Civ.P. 60(b)
(permitting the court to relieve a party from a final
judgment or order for five listed reasons as well as
"any other reason that justifies relief").
contrary reading proposed by McKeever - which would allow the
district court to create such new exceptions as it thinks
make good public policy - would render the detailed list of
exceptions merely precatory and impermissibly enable the
court to "circumvent" or "disregard" a
Federal Rule of Criminal Procedure. Carlisle v. United
States, 517 U.S. 416, 426 (1996); see also Dietz v.
Bouldin, 136 S.Ct. 1885, 1888 (2016) (The exercise of an
inherent power "cannot be contrary to any express grant
of, or limitation on, the district court's power
contained in a rule or statute").
effort to limit the natural consequences of his proposal,
McKeever explains that the district court should be allowed
to fashion new exceptions to grand jury secrecy only if they
are "so different from the types of disclosures
addressed by Rule 6(e)(3)(E) that no negative inference can
be drawn." Amicus Reply Br. 14-16. That reasoning,
however, ignores the likelihood that disclosures "so
different" from the ones explicitly permitted by the
rule are so far removed from permissible purposes of
disclosure that the drafters saw no need even to mention
understanding that deviations from the detailed list of
exceptions in Rule 6(e) are not permitted is fully in keeping
with Supreme Court precedent. Though the Court has not
squarely addressed the present question, its Rule 6 opinions
cast grave doubt upon the proposition that the district court
has authority to craft new exceptions. McKeever does not cite
any case - and we can find none - in which the Supreme Court
upheld a disclosure pursuant to the district court's
inherent authority after Rule 6 was enacted. The Supreme
Court once suggested in a dictum that Rule 6 "is but
declaratory" of the principle that disclosure of a grand
jury matter is "committed to the discretion of the trial
judge," Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395, 399 (1959), but none of the cases
it cited suggests a court has discretion to disclose grand
jury materials apart from Rule 6. To the contrary, the Court
said "any disclosure of grand jury [materials] is
covered" by Rule 6(e). Id. at 398. The
disclosure sought in that case - in order to cross-examine a
witness in civil litigation - plainly fell within the
exception for use "in connection with a judicial
proceeding." Id. at 396 n.1 (quoting rule). The
only "discretion" at issue involved the district
court's determination whether the party seeking material
covered by the exception had made a sufficiently strong
showing of need to warrant disclosure. See id. at
398-99; see also Douglas Oil, 441 U.S. at 217-24
(describing same discretion). Indeed, the Court has at least
four times since suggested the exceptions in Rule 6(e) are
exclusive. In Baggot, 463 U.S. at 479-80, the Court
prohibited disclosure of a witness's grand jury testimony
for use in a civil investigation by the Internal Revenue
Service. The Court held a civil tax audit was not
"preliminary to [n]or in connection with a judicial
proceeding" and therefore did not come within the
exception in what is now Rule 6(e)(3)(E)(i). In reaching its
conclusion, the Court explained that the exception at issue
is "on its face, an affirmative limitation on the
availability of court-ordered disclosure of grand jury
materials." Id. at 479; see also Illinois
v. Abbott & Assocs., Inc., 460 U.S. 557, 567 (1983)
(Rule 6(e)(3)(C) "authorize[s]" the court "to
permit certain disclosures that are otherwise prohibited by
the General Rule of Secrecy"); United States v.
Williams, 504 U.S. 36, 46 n.6 (1992) (describing Rule
6(e), which "plac[es] strict controls on disclosure of
'matters occurring before the grand jury, '" as
one of those "few, clear rules which were carefully
drafted and approved by this Court and by the Congress to
ensure the integrity of the grand jury's
functions"); Sells Engineering, 463 U.S. at 425
("In the absence of a clear indication in a statute or
Rule, we must always be reluctant to conclude that a breach
of this secrecy has been authorized").
understanding of Rule 6(e) is also supported by this
court's precedents, which require a district court to hew
strictly to the list of exceptions to grand jury secrecy. For
example, In re Sealed Case, 801 F.2d 1379, 1381
(D.C. Cir. 1986), we said Rule 6(e)(2) "provides that
disclosure of 'matters occurring before the grand
jury' is prohibited unless specifically permitted by one
of the exceptions set forth in Rule 6(e)(3)." A few
years later, we reiterated this point In re Sealed
Case, 250 F.3d 764, 768 (D.C. Cir. 2001), when we held
that statements made by government attorneys to a qui tam
court about a witness's grand jury testimony were an
impermissible disclosure outside the strictures of Rule 6(e).
In so holding, we rejected the Government's then-position
that there is a place for implied exceptions to the Rule:
"the Rule on its face prohibits such a communication
because it does not except it from the general
prohibition." Id. at 769. It would be most
peculiar to have stressed then that the exceptions in Rule
6(e) "must be narrowly construed," id.
769, yet to hold now that they may be supplemented by
makes three arguments to the contrary. The first is that Rule
6(e) imposes no obligation of secrecy upon the district court
itself because the district court is not on the list of
"persons" to whom grand jury secrecy applies per
Rule 6(e)(2). See Rule 2(e)(2)(A) ("No
obligation of secrecy may be imposed on any person except in
accordance with Rule 6(e)(2)(B)"). Therefore, the
argument goes, the two Sealed Cases discussed above
are inapplicable here because they deal with disclosures by
government attorneys, not by the court itself, and the court
has authority to order disclosure of grand jury matters
because these materials are "judicial records" over
which the court has inherent authority. Amicus Br. 24-25
(citing, inter alia, Carlson v. United States, 837
F.3d 753, 758-59 (7th Cir. 2016) (concluding grand jury
records are "records of the court" over which the
district court can exercise inherent authority because the
grand jury is "part of the judicial process")).
not agree that the omission of the district court from the
list of "persons" in Rule 6(e)(2) supports
McKeever's claim. Rule 6 assumes the records are in the
custody of the Government, not that of the court: When the
court authorizes their disclosure, it does so by ordering
"an attorney for the government" who holds the
records to disclose the materials. See Rule 6(e)(1)
("Unless the court orders otherwise, an attorney for the
government will retain control of the recording, the
reporter's notes, and any transcript" of the grand
jury proceeding). Because an "attorney for the
government" is one of the "persons" subject to
grand jury secrecy in Rule 6(e)(2)(B), the Rule need not also
list the district court as a "person" in order to
make the court, as a practical matter, subject to the
strictures of Rule 6. Indeed, as the Government explains, a
district court is not ordinarily privy to grand jury matters
unless called upon to respond to a request to disclose grand
jury matter. As to whether records of a grand jury proceeding
are "judicial records" - a term not found in Rule 6
- we note the teaching of the Supreme Court that although the
grand jury may act "under judicial auspices," its
"institutional relationship with the Judicial Branch has
traditionally been, so to speak, at arm's length,"
Williams, 504 U.S. at 47; it is therefore not at all
clear that when Rule 6(e)(2)(B) mentions a "matter
appearing before the grand jury," it is referring to a
"judicial record." The Supreme Court has never said
as much, and we, albeit in another context, have twice said
the opposite: "[T]he concept of a judicial record
'assumes a judicial decision,' and with no such
decision, there is 'nothing judicial to record."
SEC v. Am. Int'l Grp., 712 F.3d 1, 3 (D.C. Cir.
2013) (quoting United States v. El-Sayegh, 131 F.3d
158, 162 (D.C. Cir. 1997)).
second argument, which was recently accepted by the Seventh
Circuit in Carlson, is that the advent of Rule 6 did
not eliminate the district court's preexisting authority
at common law to disclose grand jury matters because courts
"do not lightly assume" a federal rule reduces the
"scope of a court's inherent power."
Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991)
(citation omitted). A federal rule that "permits a court
to do something and does not include any limiting
language" therefore "should not give rise to a
negative inference that it abrogates the district court's
inherent power without a 'clear expression of [that]
purpose.'" Carlson, 837 F.3d at 763
(quoting Link v. Wabash R.R. Co., 370 U.S. 626,
631-32 (1962)) (alterations in original). In this telling,
because Rule 6 did not contain a "clear expression"
that it displaced the district court's preexisting
authority, the court remains free to craft new exceptions;
the rulemakers simply furnished the list of detailed
exceptions "so that the court knows that no special
hesitation is necessary in those circumstances."
Id. at 764-65.
account of Rule 6 is difficult to square with the text of the
Rule, which we have examined above. The "limiting
language," id. at 763, the Seventh Circuit
sought is plain: Rule 6(e)(2) prohibits disclosure of a grand
jury matter "unless these rules provide otherwise."
Yet the Seventh Circuit dismisses this instruction because a
limitation "buried" in Rule 6(e)(2) could not
"secretly appl[y]" to "an entirely different
subpart," Carlson, 837 F.3d at 764, never mind
that this subpart follows immediately after Rule 6(e)(2) as
Rule 6(e)(3). Because we believe it is necessary to read the
exceptions in subpart (e)(3) in conjunction with the general
rule in subpart (e)(2), we agree with Judge Sykes's
dissent in Carlson:
As my colleagues interpret the rule, the limiting language in
the secrecy provision has no bearing at all on the
exceptions.... But the two provisions cannot be read in
isolation. They appear together in subpart (e), sequentially,
and govern the same subject matter. The exceptions plainly
modify the general rule of nondisclosure. Treating the
exceptions as merely exemplary puts the two provisions at
cross-purposes: If the district court has inherent authority
to disclose grand-jury materials to persons and in
circumstances not listed ...