In Re Petition Records Release v.

United States Court of Appeals
For the First Circuit

No. 20-1836

IN RE: PETITION FOR ORDER DIRECTING RELEASE OF RECORDS

JILL LEPORE,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges,
and Laplante,* District Judge.

Brad Hinshelwood, Attorney, Civil Division, with whom Jeffrey
Bossert Clark, Acting Assistant Attorney General, Andrew E.
Lelling, United States Attorney, and Michael S. Raab, Attorney,
Civil Division, were on brief, for Appellant.
Jacob M. Schriner-Briggs,** with whom Charles Crain, Media
Freedom & Information Access Clinic, Abrams Institute, Yale Law
School, Jonathan M. Albano, Noah J. Kaufman, and Morgan Lewis &

* Of the District of New Hampshire, sitting by designation.
** On May 5, 2021, the Court granted leave for Jacob M.
Schriner-Briggs, a law student, to participate in oral argument
pursuant to 1st Cir. R. 46.0(f).
Bockius LLP were on brief, for Appellee.
Bruce D. Brown, Katie Townsend, Lin Weeks, and Reporters
Committee for Freedom of the Press on brief for Reporters Committee
for Freedom of the Press and 39 Media Organizations, amici curiae.
Scott L. Nelson, Allison M. Zieve, and Public Citizen
Litigation Group on brief for American Historical Association,
American Society for Legal History, National Security Archive,
Organization of American Historians, and Society of American
Archivists, amici curiae.

February 28, 2022
 KAYATTA, Circuit Judge. This case traces its origins to

grand juries empaneled in 1971 to consider possible criminal

charges arising out of the publication of excerpts from the so-

called Pentagon Papers, a government study of the Vietnam War. At

the request of historian Jill Lepore, the district court ordered

the release of sealed archival records of the grand jury

proceedings. The court stayed its order pending this timely appeal

by the government. For the following reasons, we find that a

federal court does not have the authority to order the release of

grand jury records based on a finding that historical interest in

the records outweighs any countervailing considerations.

Accordingly, we reverse both the order of the district court and

its judgment in favor of the petitioner. Our reasoning follows.

I.

Beginning in 1971, the New York Times published excerpts

of the Pentagon Papers obtained from Daniel Ellsberg, an analyst

who had helped prepare them. The Nixon Administration sought to

enjoin their publication -- to no avail. See New York Times Co.

v. United States, 403 U.S. 713 (1971).1

That same year, authorities investigating how Ellsberg

had obtained, copied, and disseminated the Pentagon Papers

1 The Administration also tried and failed to prevent the
papers' publication by the Washington Post, id. at 714, which had
begun printing excerpts after the New York Times.

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empaneled two federal grand juries in Boston. Among those who

received a grand jury subpoena was Samuel Popkin, a political

scientist who had crossed paths with Ellsberg while working in

Vietnam. Popkin ultimately refused to testify about some topics,

was held in civil contempt, and appealed to this court. See United

States v. Doe, 460 F.2d 328 (1st Cir. 1972) (affirming in part and

reversing in part). He spent eight days in jail. The grand jury

that had subpoenaed Popkin was discharged without securing any

further testimony from him.

Decades later, Popkin and his grand jury experience

piqued the interest of Harvard history professor and author Jill

Lepore. Working on a book about Popkin's former employer, the

Simulmatics Corporation, Lepore decided "that she needed to know

more" about the grand jury investigations in which Popkin had been

caught up.

Upon learning that the grand jury records she sought

were under indefinite seal at the National Archives in Boston,

Lepore filed a Freedom of Information Act (FOIA) request seeking

their release. In short order, her request was denied "to preserve

the secrecy of grand jury proceedings per 5 U.S.C. § 552(b)(3),

pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure."

Rather than appealing the denial of her FOIA request,

Lepore filed a petition in the federal district court seeking

release of the records "pursuant to Federal Rule of Criminal

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Procedure 6(e)." Lepore did not argue that Rule 6(e) expressly

authorized release of the records she sought. Rather, she claimed

that the court possessed the inherent authority to release the

records. The government moved to dismiss, but the district court

granted Lepore's petition and ordered the records released,

subject to considering redactions for especially sensitive

material. In so ruling, the district court relied on two

rationales. First, the court held that Rule 6(e)(6) authorized

the disclosure. Second, it held that, apart from Rule 6, the

court's inherent authority authorized the disclosure because of

the records' possible interest to historians and the absence of

any remaining practical countervailing considerations. After

briefly describing the regime that governs grand jury records, we

address each rationale in turn.

II.

"Unlike an ordinary judicial inquiry, where publicity is

the rule, grand jury proceedings are secret." Levine v. United

States, 362 U.S. 610, 617 (1960). Grand jury proceedings and

records have been "kept from the public eye" since the

17th century. Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211,

218 n.9 (1979). Today, this common-law "rule of grand jury

secrecy" remains "an integral part of our criminal justice system."

Id. The Supreme Court has identified a "public interest in [this]

secrecy," id. at 223, explaining:

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 [I]f 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.
Id. at 219.

Of course, secrecy can sometimes undercut other

important aims. Cognizant of this fact, Congress has affirmed in

Federal Rule of Criminal Procedure 6(e)(3) the adoption of certain

exceptions to the secrecy norm. Subsections (A)–(D) authorize

certain disclosures that may be made without court approval.

Subsection (E) specifies five circumstances in which a "court may

authorize disclosure," as follows:

(i) preliminarily to or in connection with a
judicial proceeding;

(ii) 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;

(iii) at the request of the government, when
sought by a foreign court or prosecutor for
use in an official criminal investigation;

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 (iv) at the request of the government if it
shows that the matter may disclose a violation
of State, Indian tribal, or foreign criminal
law, as long as the disclosure is to an
appropriate state, state-subdivision, Indian
tribal, or foreign government official for the
purpose of enforcing that law; or

(v) at the request of the government if it
shows that the matter may disclose a violation
of military criminal law under the Uniform
Code of Military Justice, as long as the
disclosure is to an appropriate military
official for the purpose of enforcing that
law.

Fed. R. Crim. P. 6(e)(3)(E)(i)–(v). But unless and until the

disclosure of grand jury materials is authorized, Rule 6(e)(6)

provides 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."

III.

The district court read Rule 6(e)(6) as implicitly

authorizing disclosure in this case. The court reasoned that it

was "no longer necessary to keep the materials in question under

seal" because they were "nearly fifty years old, ha[d] been the

subject of contemporaneous newspaper articles, and ha[d] been

partially disclosed in both public court filings and statements

made by grand jury witnesses."

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 Unlike the district court, we do not glean from the

recordkeeping provisions of Rule 6(e)(6) a negative implication

permitting the release of grand jury records. The rule says

nothing about when or for what reason disclosure can be authorized.

Rather, it simply calls for sealing such records to the extent

necessary to "prevent [their] unauthorized disclosure."

Rule 6(e)(6) thus does not directly address the questions of when

and how disclosure is authorized.

IV.

Having rejected the district court's finding that

Rule 6(e)(6) authorized the disclosure of the grand jury materials

in this case, we turn to whether the court had inherent authority

to release the records in circumstances not enumerated in

Rule 6(e)(3). We conclude that, even assuming such authority

exists, it does not empower a court to order disclosure based only

on a finding that historical interest in grand jury materials

outweighs any countervailing considerations.

A.

As a general matter, it is clear that federal courts

have inherent authority to take some actions not expressly

authorized by rule or statute when such actions are needed to

facilitate or safeguard legal proceedings. Courts "invested with

the judicial power of the United States have certain inherent

authority to protect their proceedings and judgments in the course

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of discharging their traditional responsibilities." Degen v.

United States, 517 U.S. 820, 823 (1996).2 It "has long been

understood that 'certain implied powers must necessarily result to

our Courts of justice from the nature of the institution,' powers

'which cannot be dispensed with in a Court, because they are

necessary to the exercise of all others.'" Chambers v. NASCO,

Inc., 501 U.S. 32, 43 (1991) (internal brackets omitted) (quoting

United States v. Hudson, 7 Cranch 32, 34 (1812)). These powers

are "governed not by rule or statute but by the control necessarily

vested in courts to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases." Link v. Wabash

R.R. Co., 370 U.S. 626, 630–31 (1962).

For example, courts possess inherent authority to

"impose silence, respect, and decorum," Anderson v. Dunn, 6 Wheat.

204, 227 (1821); require "submission to their lawful mandates,"

id.; "fashion an appropriate sanction for conduct which abuses the

judicial process," Chambers, 501 U.S. at 44–45; "hear a motion in

limine," Dietz v. Bouldin, 579 U.S. 40, 45 (2016); entertain a

"motion to dismiss for forum non conveniens," id.; and generally

to "manage their dockets and courtrooms with a view toward the

efficient and expedient resolution of cases," id. at 47 (collecting

cases).

2 This authority is variously referred to as implied power,
inherent authority, supervisory authority, or supervisory power.

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 That being said, the Supreme Court long ago warned that

inherent power "ought to be exercised with great caution," Ex parte

Burr, 9 Wheat. 529, 531 (1824). And it has more recently repeated

that admonition. See Chambers, 501 U.S. at 44 ("Because of their

very potency, inherent powers must be exercised with restraint and

discretion."); Degen, 517 U.S. at 823 ("The extent of these powers

must be delimited with care, for there is a danger of overreaching

when one branch of the Government, without benefit of cooperation

or correction from the others, undertakes to define its own

authority."). Importantly for our purposes, the Court has twice

emphasized that "the exercise of an inherent power must be a

'reasonable response to the problems and needs' confronting the

court's fair administration of justice." Dietz, 579 U.S. at 45

(quoting Degen, 517 U.S. at 823–24).

The Supreme Court in Dietz held that "district courts

have a limited inherent power to rescind a discharge order and

recall a jury in a civil case" -- a power which should be wielded

"cautiously" and whose use should be reviewed "carefully." 579

U.S. at 54. As we will shortly explain, a district court

undoubtedly has greater power to manage a trial jury than a grand

jury. But we assume that the Court's discussions of inherent

authority in Dietz are also applicable to the case at hand. In

Dietz, the Court explained that it had "never precisely delineated

the outer boundaries of a district court's inherent powers," but

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had "recognized certain limits on those powers." Id. at 45. The

Court then outlined two limits on the exercise of inherent

authority. One is that "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." Id. The other is

that "the exercise of an inherent power must be a 'reasonable

response to the problems and needs' confronting the court's fair

administration of justice." Id. (quoting Degen, 517 U.S. at 823–

24).

The Supreme Court has also recognized that courts have

at least some authority over grand jury proceedings. United States

v. Williams, 504 U.S. 36, 45–47 (1992). But a court's inherent

authority over the grand jury is even narrower than its authority

over matters before the court itself. Id. The Supreme Court has

explained that "any power federal courts may have to fashion, on

their own initiative, rules of grand jury procedure is a very

limited one, not remotely comparable to the power they maintain

over their own proceedings." Id. at 50. That is because the grand

jury is an independent entity that has "not been textually

assigned . . . to any of the [three] branches" of government. Id.

at 47. Although the grand jury operates "under judicial auspices,

its institutional relationship with the Judicial Branch has

traditionally been, so to speak, at arm's length." Id.

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 Lepore argues that the courts' inherent authority over

some aspects of grand jury proceedings, even if limited, is broad

enough to empower a district court to order the release of grand

jury materials in circumstances not covered by Rule 6(e). Whether

this is so is a matter on which our sister circuits are divided.

On one side of the split, the Second and Seventh Circuits

have held "that Rule 6(e)(3)(E) is permissive, not exclusive,

and . . . does not eliminate the district court's long-standing

inherent supervisory authority to . . . ensure the proper

functioning of a grand jury," including by "unseal[ing] grand jury

materials in circumstances not addressed by Rule 6(e)(3)(E)."

Carlson v. United States, 837 F.3d 753, 766–67 (7th Cir. 2016);

see also In re Petition of Craig, 131 F.3d 99, 101–03 (2d Cir.

1997) (reaffirming that "release of grand jury records [may be]

appropriate even outside of the boundaries of [Rule 6(e)(3)]"

(citing In re Biaggi, 478 F.2d 489, 494 (2d Cir. 1973)

(supplemental opinion)).

On the other side of the split, four circuits have

concluded "that Rule 6(e) is exhaustive, and that district courts

do not possess inherent, supervisory power to authorize the

disclosure of grand jury records outside of Rule 6(e)(3)'s

enumerated exceptions." Pitch v. United States, 953 F.3d 1226,

1229 (11th Cir. 2020) (en banc), cert. denied, 141 S. Ct. 624

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(2020)3; see also McKeever v. Barr, 920 F.3d 842, 850 (D.C. Cir.

2019) ("[A] district court has no authority outside Rule 6(e) to

disclose grand jury matter."), cert. denied, 140 S. Ct. 597 (2020);

United States v. McDougal, 559 F.3d 837, 840 (8th Cir. 2009)

("[C]ourts will not order disclosure absent a recognized exception

to Rule 6(e) or a valid challenge to the original sealing order or

its implementation."); In re Grand Jury 89-4-72, 932 F.2d 481, 488

(6th Cir. 1991) ("[A court] cannot, and must not, breach grand

jury secrecy for any purpose other than those embodied by

[Rule 6]").4

This circuit has yet to weigh in on whether Rule 6(e)

exhausts the universe of possible justifications for disclosing

grand jury materials. We have, however, considered the materially

different question whether Rule 6(e)(2)(A) exhausts the universe

of persons who "must not" disclose grand jury matters. We found

3Pitch overruled the Eleventh Circuit's prior decision in
In re Petition to Inspect & Copy Grand Jury Materials (Hastings),
735 F.2d 1261 (11th Cir. 1984), which held that a district court's
"inherent, supervisory power over the grand jury" allowed it to
"authorize the disclosure of grand jury records outside of
Rule 6(e)'s enumerated exceptions in certain 'exceptional
circumstances.'" Pitch, 953 F.3d at 1229 (quoting Hastings, 735
F.2d at 1269).
4In re Grand Jury 89-4-72 considered then-extant
Rule 6(e)(3)(C)(i), which permitted disclosures "sought
'preliminarily to or in connection with a judicial proceeding'"
upon showing "a compelling need for disclosure" that "overcome[s]
the general presumption in favor of grand jury secrecy." 932 F.2d
at 483 (quoting Rule 6(e)(3)(C)(i)).

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that it does not. See In re Grand Jury Proc., 417 F.3d 18, 26

(1st Cir. 2005).

That being said, we need not decide in this case whether

district courts possess some inherent authority to order the

release of secret grand jury materials for reasons other than those

identified in Rule 6(e)(3). Rather, we need only decide the

following narrower question: Assuming that district courts

possess some inherent authority to order the release of sealed

grand jury materials in circumstances not covered by the Rule 6(e)

exceptions, may they do so because the materials are considered

historically significant? To that question, we turn next.

B.

1.

As the foregoing discussion of inherent authority makes

clear -- both generally and in relation to grand jury proceedings

-- it cannot be exercised unless it is a "'reasonable response to

the problems and needs' confronting the court's fair

administration of justice." Dietz, 579 U.S. at 45 (quoting Degen,

517 U.S. at 823–24). Prior to the 1944 adoption of Rule 6(e),

courts discussed the circumstances in which the fair

administration of justice justified ordering the release of grand

jury materials. See, e.g., United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 233–34 (1940) ("[A]fter the grand jury's

functions are ended, disclosure is wholly proper where the ends of

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justice require it."); Metzler v. United States, 64 F.2d 203, 206

(9th Cir. 1933) ("Where the ends of justice can be furthered

thereby and when the reasons for [grand jury] secrecy no longer

exist, the policy of the law requires that the veil of secrecy be

lifted."). Consonant with this understanding of inherent judicial

power, courts recognized their ability to disclose grand jury

materials to refresh a witness's recollection at trial, Socony-

Vacuum Oil, 310 U.S. at 233–34; "to prevent abuse in grand jury

proceedings," Murdick v. United States, 15 F.2d 965, 968 (8th Cir.

1926); and, "in extreme instances," to "do what is needful to

prevent clear injustice or an abuse of judicial process," McKinney

v. United States, 199 F. 25, 27 (8th Cir. 1912). All of these

examples feature a common element -- a focus on furthering the

administration of justice within a particular legal proceeding.

Our own past reliance on inherent authority in In re

Grand Jury Proceedings fits comfortably within this mold: We

concluded that the district court's order was rooted in its

inherent power "to impose secrecy orders incident to matters

occurring before [it]." 417 F.3d at 26. The matter at hand

concerned the integrity of an ongoing grand jury proceeding, and

the order was aimed at "protecting [that] grand jury investigation

from further abuse by one who ha[d] already demonstrated a capacity

and intention to frustrate the investigation." Id. at 27. In

other words, the court's "exercise of [its] inherent power" was "a

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'reasonable response to the problems and needs' confronting the

court's fair administration of justice" in an ongoing proceeding.

Dietz, 579 U.S. at 45 (quoting Degen, 517 U.S. at 823–24).

Rule 6(e) -- which, as Lepore herself argues, "reflects

rather than creates the relationship between federal courts and

grand juries," Craig, 131 F.3d at 102 -- reinforces the link

between disclosure and safeguarding the fair administration of

justice. The purposes for which a court may disclose grand jury

materials under Rule 6(e) invariably relate to administering

judicial proceedings, protecting the integrity of the legal

process, and facilitating the prosecution of a criminal offense.

See Fed. R. Crim. P. 6(e)(3)(E)(i)–(v).

So while we may assume without deciding that there exists

the inherent authority to order disclosure of grand jury materials

in circumstances not expressly anticipated by Rule 6(e)(3),5 we

find in the foregoing no license to order disclosure for purposes

other than protecting or furthering the fair administration of

justice.

2.

In the last few decades, some courts have nevertheless

disclosed grand jury materials because of their historical

5 This assumption obviates the need to engage with Lepore's
contention that Rule 6(e) imposes no secrecy obligations on courts
or judges in the first instance.

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significance. See, e.g., In re Petition of Am. Hist. Ass'n, 49 F.

Supp. 2d 274, 277–78 (S.D.N.Y. 1999) (grand jury transcripts

related to the espionage investigation of Alger Hiss); In re

Petition of Kutler, 800 F. Supp. 2d 42, 43, 48–50 (D.D.C. 2011)

(Richard Nixon's grand jury testimony). The circuit authority

first to embrace this new justification for the exercise of

inherent powers is Craig, in which the Second Circuit held that it

is "entirely conceivable that in some situations historical or

public interest alone could justify the release of grand jury

information." 131 F.3d at 105. The court reasoned that because

the exercise of inherent authority to release grand jury records

involves a "highly discretionary" and "fact-sensitive" inquiry, it

precludes any rigid rule that "a certain factor -- like historical

interest -- can never suffice as a matter of law" to permit the

disclosure of grand jury records. Id. at 105–06. Rather, the

court developed a non-exhaustive, nine-factor test to guide a

court's exercise of its inherent authority. Id. at 106.

Craig's approach departs from the traditional,

restrained approach to wielding inherent judicial powers, at least

where historically significant records do not implicate any

ongoing proceedings. To be sure, improving the public's knowledge

of history can further the interests of justice as broadly

understood. See generally, e.g., Jill Lepore, These Truths: A

History of the United States (2018). But courts' inherent

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authority concerns the administration of justice in our legal

system. Toward that end, the exercise of inherent authority to

order the disclosure of secret grand jury materials permits courts

to "protect [legal] proceedings and judgments," Degen, 517 U.S. at

823 -- not to serve some more expansive notion of the public good.

See Carlson, 837 F.3d 753 at 771 (Sykes, J., dissenting) ("It's

hard to see how [a district court's] 'very limited' authority [over

the grand jury] includes the sweeping power to release grand-jury

records to the general public for reasons that strike the judge as

socially desirable." (quoting Williams, 504 U.S. at 50)).

Perhaps unsurprisingly, then, Craig has little to say

about the traditional contours of courts' inherent authority.

Indeed, it does not cite Degen, and thus fails to engage with that

case's "counsel [of] restraint in resorting to inherent power."

517 U.S. at 823. Nor does Craig cite Williams, ignoring its

teaching that "any power federal courts may have to fashion . . .

rules of grand jury procedure is a very limited one, not remotely

comparable to the power they maintain over their own proceedings."

504 U.S. at 50. And Craig predated Dietz, in which the Supreme

Court reiterated that "[t]he exercise of an inherent power must be

a 'reasonable response to the problems and needs' confronting the

court's fair administration of justice." 579 U.S. at 45 (quoting

Degen, 517 U.S. at 823–24).

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 Instead, Craig places significant weight on the fact

that courts possess broad discretion in applying the Rule 6(e)

exceptions. Id. at 102, 104. We see little logic in such

reasoning. Whether a court has discretion in applying an exception

says little about whether a court has the discretion to create

other exceptions, or about the scope of any such discretion. The

existence and contours of any residual discretion to disclose grand

jury materials are better located in the precedent we have reviewed

in the prior section of this opinion. And as we have explained,

that precedent anchors any such discretion in the court's inherent

authority to take steps necessary to further the fair

administration of justice in a legal proceeding.

Craig does raise a fair policy question: What reason is

there not to release now, for example, records of a grand jury

proceeding conducted over a century ago? See 131 F.3d at 105 &

n.9 (positing an imagined grand jury investigation into Abraham

Lincoln's assassination). But the more apt question, in our view,

is whether a federal judge should be the one to decide and act on

that question, and in so doing resolve the additional questions

that must be answered to limn the boundaries of what is disclosable

based on assessments of historical significance. To name just a

few such questions: How does a court determine whether particular

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records are historically significant?6 Can an affected party

exercise veto power even if the general public has a strong

interest in disclosure? And when has enough time passed -- both

to make records a matter of "history" and to sufficiently diminish

the countervailing interest in grand jury secrecy?7

Given the "restraint" that ought to govern courts' use

of their inherent authority, Chambers, 501 U.S. at 44, such an

endeavor strikes us as too far removed from the more specific

interest -- "the court's fair administration of justice" -- that

provides the principal and principled limitation on a court's

exercise of inherent authority, Dietz, 579 U.S. at 45. And even

if we were otherwise willing to wade into these uncertain waters,

the Supreme Court has held that a court abuses its discretion when

it releases grand jury materials based on "an evaluation entirely

beyond [the court's] expertise." Douglas Oil, 441 U.S. at 228–

6 Lepore's own work demonstrates that historical
significance is a broad and evolving concept. E.g., Jill Lepore,
Book of Ages: The Life and Opinions of Jane Franklin (2013)
(National Book Award Finalist chronicling the life of Benjamin
Franklin's youngest sister, who lived and died in relative
obscurity in her own time); Jill Lepore, Just the Facts, Ma'am:
Fake memoirs, factual fictions, and the history of history, New
Yorker, Mar. 24, 2008, https://www.newyorker.com/magazine/
2008/03/24/just-the-facts-maam (opining that history
"should . . . tell the story of ordinary people").
7 Lepore contends that fifty years should be enough, but that
is not self-evident. Harvard University, for example, apparently
maintains student and employee records under seal for eighty years.
Bruce A. Kimball & Daniel R. Coquillette, The Intellectual Sword:
Harvard Law School, the Second Century app. J (2020).

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29. The administration of justice in a particular proceeding falls

well within that expertise; the gauging of historical

significance, less so. Rather, such an endeavor strikes us as a

task better suited to Congress,8 or the Rules Committees.9

These observations lead us to reject the reasoning of

those few courts that have relied on their inherent authority to

order disclosure of grand jury materials based on historical

significance absent a need to ensure the fair administration of

justice in a legal proceeding. Given this conclusion, we need not

8Indeed, Congress has at least twice enacted legislation
authorizing disclosure of historically significant grand jury
materials. See President John F. Kennedy Assassination Records
Collection Act of 1992, Pub. L. No. 102-526, §§ 4(a)(1), 10(a)(2),
106 Stat. 3443, 3445, 3456 (codified at 44 U.S.C. § 2107 note);
Civil Rights Cold Case Records Collection Act of 2018, Pub. L.
No. 115-426, § 8(a)(2), 132 Stat. 5489, 5501 (2019) (codified at
44 U.S.C. § 2107 note). And draft legislation presently pending
before a House subcommittee would permit the release of grand jury
materials related to the FBI surveillance program known as
COINTELPRO. See COINTELPRO Full Disclosure Act, H.R. 2998, 117th
Cong. §§ 2(a), 7(a)(2) (2021). Should Congress enact some version
of that bill into law, it presumably will reflect legislative
factfinding and a broad consensus about the propriety of
authorizing the records' release.
9The Advisory Committee on Criminal Rules has twice rejected
proposals to amend Rule 6(e) to permit disclosure of historically
significant grand jury records. During its most recent
consideration of such an amendment, a subcommittee "gather[ed] the
views of experienced prosecutors, defense counsel, historians,
journalists, and others affected by grand jury secrecy" and
compared multiple proposals. Memorandum from Professors Sara Sun
Beale & Nancy King, Reporters, to the Members of the Advisory Comm.
on Crim. Rules, at 2–3 (Oct. 6, 2021). At least when the
administration of justice in a legal proceeding is not at issue,
such a process seems more conducive to considered policymaking
than is piecemeal adjudication based on inherently limited input.

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and do not define the exact contours of a court's inherent power

to disclose grand jury materials when the fair administration of

justice in a proceeding is at issue.10

3.

Three loose ends remain. First, Lepore argues that

courts have latitude to disclose grand jury records because they

are judicial records. But calling grand jury records judicial

records does not change our calculus. We recognize that in general

a court has "supervisory power over its own records and files."

Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597–98 (1978). But

a court's power over grand jury records is surely diminished by

its "arm's-length" relationship to the grand jury. Williams, 504

U.S. at 47. More fundamentally, we have assumed that courts do

indeed retain some inherent power to disclose grand jury records.

The question in this case is the proper scope of that power.

Pointing to the mere fact that grand jury records may be called

judicial records does not meaningfully advance the resolution of

that question.

Second, Lepore insists that disclosing historically

significant records would not offend the principles the Supreme

10 While Lepore's declaration filed in the district court
suggests the possibility that the materials at issue may disclose
some misconduct or abuse in the 1971 grand jury proceedings, her
brief on appeal advances no argument along these lines. More to
the point, she fails to identify any proceeding in which fair
administration might require releasing the records she seeks.

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Court articulated in Williams because it would not

"reshap[e] . . . the grand jury institution" or "substantially

alter[] the traditional relationship[]" between the court and the

grand jury. 504 U.S. at 50. But even if the power the district

court exercised is not the kind of conduct that Williams held to

be "certainly" impermissible, id., that still leaves unanswered

the question whether the court possessed that power in the first

place. We have concluded that it did not.

Finally, Lepore argues that the Advisory Committee on

Criminal Rules understands courts to possess inherent authority to

disclose historically significant materials. She relies on

meeting minutes from 2012 -- more than three decades after Congress

enacted relevant provisions of Rule 6(e). The government counters

that these minutes are akin to "[p]ost-enactment legislative

history," which "is not a legitimate tool of statutory

interpretation." Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242

(2011). In any event, reporters to the Advisory Committee on

Criminal Rules more recently opined that "the issue of inherent

authority is a question of the constitutional authority of

Article III courts, which the Committee has no authority to

resolve." Memorandum from Professors Sara Sun Beale & Nancy King,

Reporters, to the Members of the Advisory Comm. on Crim. Rules,

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at 13 (Oct. 6, 2021).11

V.

For the foregoing reasons, we reverse both the order of

the district court requiring the disclosure of the grand jury

materials and the judgment entered in favor of petitioner.

11 This is not to say that the Committee lacks the authority
to amend Rule 6(e) to permit disclosure of historically significant
grand jury records if the Committee were so convinced.

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