In Re Grand Jury Subpoena Miller

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided February 3, 2006

No. 04-3138

IN RE: GRAND JURY SUBPOENA, JUDITH MILLER

Consolidated with
04-3139, 04-3140

Appeals from the United States District Court
for the District of Columbia
(No. 04mc00407)
(No. 04mc00460)
(No. 04mc00461)

On Amicus Curiae Dow Jones & Co., Inc’s Motion to Unseal
______

Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were
on the motion to unseal and the reply to the government’s
response.

Peter R. Zeidenberg and James P. Fleissner, Deputy
Special Counsels, U.S. Department of Justice, were on the
responses to the motion to unseal.

Before: SENTELLE, HENDERSON, and TATEL, Circuit
Judges.
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Opinion for the Court filed PER CURIAM.

PER CURIAM: Guided by Special Counsel Patrick J.
Fitzgerald, a federal grand jury investigating the public exposure
of a covert CIA agent’s identity subpoenaed two reporters,
Judith Miller of the New York Times and Matthew Cooper of
Time magazine, to give evidence relating to their confidential
sources. After being held in civil contempt for refusing to
comply with the subpoenas, the reporters appealed to this court.
Affirming, we held that neither the First Amendment nor any
applicable common-law privilege excused the reporters from
their obligation as citizens to give the grand jury evidence
relating to possible criminal activity. In re Grand Jury
Subpoena, Judith Miller, 397 F.3d 964, 968-73 (D.C. Cir. 2005).

As we explained in our per curiam opinion, however, “the
Court is not of one mind on the existence of a common law
privilege.” Id. at 973. Specifically:

Judge Sentelle would hold that there is no such common
law privilege for reasons set forth in a separate opinion.
Judge Tatel would hold that there is such a common law
privilege. Judge Henderson believes that we need not,
and therefore should not, reach that question.

Id. Nevertheless, we agreed that, “for the reasons set forth in the
separate opinion of Judge Tatel, . . . if such a privilege applies
here, it has been overcome.” Id.

Relying on ex parte submissions from the special counsel,
Judge Tatel’s opinion explained that the reporters’ testimony
was critical to the investigation, that the grand jury had
exhausted alternative non-reporter sources, and that the public
interest favored compelling disclosure. Id. at 1001-03. Eight
pages of Judge Tatel’s opinion were redacted to preserve grand
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jury secrecy and to protect classified information. See id. at
1002.

Now that the grand jury has returned an indictment against
I. Lewis Libby for perjury, obstruction of justice, and making
false statements to federal investigators, amicus curiae Dow
Jones & Company moves to unseal the eight pages—or, failing
that, portions thereof relating to matters that are now public. See
D.C. Cir. R. 47.1(c). Although objecting to unsealing the
opinion in its entirety, the special counsel informs us that
nothing in the concurring opinion remains classified and agrees
that portions of the redacted opinion may be made public
without jeopardizing grand jury secrecy. We also asked the
special counsel to tell us whether portions of the two affidavits
he initially submitted to this court explaining the need for the
reporters’ cooperation may also be released to the public. In
response, he filed an affidavit expressing his view that,
consistent with the need for grand jury secrecy, portions of one
of the two affidavits may be unsealed.

Reflecting our criminal justice system’s longstanding
commitment to grand jury secrecy, Douglas Oil Co. v. Petrol
Stops Nw., 441 U.S. 211, 218 n.9 (1979) (“Since the 17th
century, grand jury proceedings have been closed to the public,
and records of such proceedings have been kept from the public
eye.”), Rule 6(e) of the Federal Rules of Criminal Procedure
prohibits the disclosure of “matter[s] occurring before the grand
jury,” Fed. R. Crim. P. 6(e)(2), and requires that “[r]ecords,
orders, and subpoenas relating to grand-jury proceedings must
be kept under seal to the extent and as long as necessary to
prevent the unauthorized disclosure of a matter occurring before
a grand jury,” id. R. 6(e)(6). The Supreme Court has advanced
several practical justifications for grand jury secrecy:
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First, if preindictment proceedings were made public,
many prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony.
Moreover, witnesses who appeared before the grand jury
would be less likely to testify fully and frankly, as they
would be open to retribution as well as to inducements.
There also would be the risk that those about to be
indicted would flee, or would try to influence individual
grand jurors to vote against indictment. Finally, by
preserving the secrecy of the proceedings, we assure that
persons who are accused but exonerated by the grand
jury will not be held up to public ridicule.

Douglas Oil, 441 U.S. at 219. Consistent with these purposes,
we have recognized that grand jury secrecy covers “the
identities of witnesses or jurors, the substance of testimony as
well as actual transcripts, the strategy or direction of the
investigation, the deliberations or questions of jurors, and the
like.” In re Dow Jones & Co., Inc., 142 F.3d 496, 500 (D.C.
Cir. 1998) (internal quotation marks omitted).

Grand jury secrecy is not unyielding, however. Judicial
materials describing grand jury information must remain secret
only “to the extent and as long as necessary to prevent the
unauthorized disclosure of a matter occurring before a grand
jury.” Fed. R. Crim. P. 6(e)(6) (emphasis added); cf. Dow
Jones, 142 F.3d at 502 (explaining that identical language in
Rule 6(e)(5) requires courts to open judicial hearings ancillary
to grand jury affairs to the public whenever consistent with
grand jury secrecy). Our case law, moreover, reflects the
common-sense proposition that secrecy is no longer “necessary”
when the contents of grand jury matters have become public.
For example, in the wake of Iran-Contra we ordered the release
of the independent counsel’s report detailing the outcome of his
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investigation, notwithstanding the fact that the report was
primarily based on grand jury testimony. In re North, 16 F.3d
1234 (D.C. Cir. 1994). We reasoned that “[t]here must come a
time . . . when information is sufficiently widely known that it
has lost its character as Rule 6(e) material. The purpose in Rule
6(e) is to preserve secrecy. Information widely known is not
secret.” Id. at 1245. During the grand jury’s investigation into
the Monica Lewinsky matter, we similarly held that staffers at
the Office of the Independent Counsel could not have violated
Rule 6(e) when they told the New York Times they believed
then-President Clinton should be indicted for perjury and
obstruction of justice. In re Sealed Case, 192 F.3d 995, 1001-05
(D.C. Cir. 1999). Although we recognized that revealing a
witness’s identity and naming the target of a grand jury’s
investigation would ordinarily constitute Rule 6(e) violations, id.
at 1004, we found that the staffers “did not reveal any secret, for
it was already common knowledge” both that President Clinton
had testified and that the grand jury was investigating possible
perjury and obstruction charges against him, id. at 1004-05.

For similar reasons, we are satisfied here that there is no
longer any need to keep significant portions of the eight pages
under seal. Libby’s indictment, now part of the public record,
reveals some grand jury matters, and we see little purpose in
protecting the secrecy of grand jury proceedings that are no
longer secret. Because discrete portions of the eight pages can
be redacted without doing violence to their meaning, today we
unseal those portions containing grand jury matters that the
special counsel confirmed in the indictment or that have been
widely reported. (The formerly redacted materials appear in
italics on pages 30-39.) On our own initiative, moreover, we
also unseal parts of one of the special counsel’s affidavits upon
which we relied in concluding that Miller’s evidence was critical
to the grand jury investigation. If the public is to see our
reasoning, it should also see what informed that reasoning.
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But just as some parts of the record may now be made
public, others must remain secret. After reviewing the special
counsel’s submissions, we agree that some information in the
eight pages and in the special counsel’s affidavits
unquestionably remains grand jury material that Rule 6(e)
obligates us to maintain under seal. Its publication at this
juncture could identify witnesses, reveal the substance of their
testimony, and—worse still—damage the reputations of
individuals who may never be charged with crimes. That the
special counsel’s investigation is ongoing only heightens the
need for maintaining grand jury secrecy, for the special counsel
is entitled to conduct his investigation out of the public eye and
with the full cooperation of witnesses who have no fear their
role in the investigation will lightly be disclosed.

It is therefore ORDERED and ADJUDGED that, pursuant
to Circuit Rule 47.1(c), Dow Jones’s motion is granted in part
and denied in part, and that the redacted opinion and ex parte
affidavit shall be placed in the public docket. This order is
without prejudice to Dow Jones’s right to move to unseal
additional materials at a later date.

So ordered.