United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 1998 Decided May 5, 1998
No. 98-3033
In re: Motions of Dow Jones & Company, Inc., et al.
Consolidated with
No. 98-3034
Appeals from the United States District Court
for the District of Columbia
(98ms00058)
(98ms00087)
Theodore J. Boutrous, Jr. argued the cause and filed the
briefs for appellants.
W. Neil Eggleston argued the cause for appellee The White
House. With him on the brief was Charles F.C. Ruff, Coun-
sel to the President.
David E. Kendall argued the cause for appellee President
William J. Clinton. With him on the brief was Max Stier.
Jamie S. Gardner argued the cause for appellee Francis D.
Carter, Esq. With her on the brief was Charles J. Ogletree,
Jr.
Nathaniel H. Speights argued the cause and filed the brief
for appellee Monica Lewinsky.
Before: Randolph, Rogers, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: On January 16, 1998, at the
request of the Attorney General, a special division of this
court issued an order expanding the prosecutorial jurisdiction
of Independent Counsel Kenneth W. Starr.1 The order--
which the special division released to the public--authorized
Starr to investigate "whether Monica Lewinsky or others
suborned perjury, obstructed justice, intimidated witnesses,
or otherwise violated federal law ... in dealing with wit-
nesses, potential witnesses, attorneys, or others concerning
the civil case Jones v. Clinton"; and "to investigate any
person or entity who has engaged in unlawful conspiracy or
who has aided or abetted any federal offense, as necessary to
resolve" the first matter.
Thereafter, a grand jury here began receiving evidence
about Monica Lewinsky and President Clinton, and others, or
so appellants in this case tell us. Since mid-January the
press has staked out the courthouse, photographing and
attempting to intercept anyone who, because of his or her
suspected status as witness or lawyer in the investigation,
might shed light on the grand jury's progress. Some individ-
uals have paused to give their versions of what transpired
during their grand jury appearances; others have refused to
be interviewed or to give a public statement.
The press, naturally desiring more information, moved for
access to district court hearings and pleadings related to the
grand jury's investigation.2 Under Rule 407(3) of the United
__________
1 Judges Sentelle, Butzner, and Fay sit on the Division for the
Purpose of Appointing Independent Counsels.
2 Appellants are Dow Jones & Company, Inc.; the Los Angeles
Times; ABC, Inc.; the Associated Press; Cable News Network,
States District Court for the District of Columbia, the Chief
Judge shall "hear and determine all matters relating to
proceedings before the grand jury." D.D.C.R. 407(3). Such
"ancillary" matters may arise for a number of reasons.
Grand juries summon witnesses and documents with subpoe-
nas. Witnesses, including custodians of documents, report on
the scheduled date not to a courtroom, but to a hallway
outside the room where the grand jury is sitting. The
witness must enter the grand jury room alone, without his or
her lawyer. No judge presides and none is present. See
Sara S. Beale et al., Grand Jury Law and Practice s 4.10, at
4-44 (2d ed. 1997). Inside the grand jury room are sixteen to
twenty-three grand jurors, one or more prosecuting attor-
neys, and a court reporter. 18 U.S.C. s 3321; Fed. R. Crim.
P. 6(a)(1), (d) & (e). The witness is sworn, and questioning
commences, all to the end of determining whether "there is
adequate basis for bringing a criminal charge." United
States v. Williams, 504 U.S. 36, 51 (1992). Other than
witnesses, each person present in the grand jury room or
otherwise assisting the prosecutor is forbidden from disclos-
ing "matters occurring before the grand jury," Fed. R. Crim.
P. 6(e)(2) & (3)(A)(ii).
"Although the grand jury normally operates, of course, in
the courthouse and 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.
Still, at many points, from service of the subpoena through
the completion of the witness's grand jury appearance, judi-
cial proceedings relating to the grand jury may take place.
The judge may be called upon to decide a witness's motion to
postpone the date of testimony or to quash the subpoena. If
a witness refuses to answer questions on the basis of a
testimonial privilege, such as attorney-client or husband-wife,
the grand jury may seek a court order compelling the witness
to answer. This may be done forthwith, through an oral
__________
Inc.; CBS Broadcasting, Inc.; Fox News Network; National
Broadcasting Company, Inc.; The New York Times Company;
Time Inc.; USA Today; and The Washington Post.
presentation to the court, see, e.g., Levine v. United States,
362 U.S. 610, 612 (1960), or upon the filing of pleadings,
followed by a hearing. A hearing will also be needed if a
witness asserts his or her privilege against self-incrimination,
and the prosecutor seeks an order from the court granting
the witness immunity. See 18 U.S.C. s 6003(a).
These appeals are from the Chief Judge's denial of motions
concerning two such ancillary proceedings and from her
denial of a broader motion to govern access to all future
ancillary proceedings stemming from the grand jury's investi-
gation.3 In chronological order, the press filed its first
motion on March 5th, seeking "access to any and all proceed-
ings and papers ... as well as any orders or rulings issued by
the Court concerning assertions by Francis D. Carter of
objections to the grand jury subpoena." The motion also
requested "access to transcripts" of hearings to the extent
they had "already occurred." (Carter, we are told, was an
attorney for Monica Lewinsky.) Next, on March 9th, the
press moved for the establishment of "procedures relating to
public access to judicial proceedings and records in connec-
tion with the investigation being conducted by Independent
Counsel Kenneth W. Starr." On March 11th, the press
moved for "access to any hearings, and transcripts of such
hearings ... concerning the motion to show cause filed by
President Clinton against Independent Counsel Kenneth W.
Starr for alleged violations of grand jury secrecy."
We will take up first the motion requesting the Chief Judge
to establish procedures governing public access to the hear-
__________
3 While no one has questioned our jurisdiction to hear these
appeals, we have assured ourselves that appellate jurisdiction exists.
See 28 U.S.C. s 1291; Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949); In re Reporters Comm. for Freedom of the Press,
773 F.2d 1325, 1330 (D.C. Cir. 1985). We are also certain that
although part of the case deals with the Chief Judge's refusal to
allow the press to attend hearings now concluded, the capable-of-
repetition-yet-evading-review doctrine saves the case from moot-
ness. See Gannett Co. v. DePasquale, 443 U.S. 368, 377-78 (1979);
Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478
U.S. 1, 6 (1986).
ings and to papers in all of the proceedings relating to the
grand jury. Although the press framed its motion in terms of
access to proceedings "to resolve privilege claims or other
legal issues," it seems mainly interested in proceedings in-
volving the assertions of testimonial privileges in response to
grand jury subpoenas, and in President Clinton's motion for
an order to show cause why the Office of the Independent
Counsel should not be found in contempt. Among other
things, the press requested the Chief Judge to provide ad-
vance public notice of hearings; to grant its counsel opportu-
nity to be heard regarding closure; and to require "all
motions, orders, and other judicial records filed in connection
with the grand jury proceeding be docketed on the public
record." The Chief Judge ruled that the press had neither a
common law nor a First Amendment right of access and
declined to adopt "movants' extraordinary procedures." The
Chief Judge also found it "inappropriate and contrary to Rule
6(e) to require any materials filed in connection with grand
jury proceedings to be docketed on the public record or
unsealed without an express order from this Court. Even
releasing the matters to be heard by the Court runs the risk
of disclosing 'matters occurring before the grand jury.' Fed.
R. Crim P. 6(e)." The press maintains that the "blanket
closure of judicial proceedings" and the failure to provide
"procedural safeguards prior to closure" violate the First
Amendment. See Brief for Appellants at 9.
A settled proposition, one the press does not contest, is
this: there is no First Amendment right of access to grand
jury proceedings. The Fifth Amendment makes the "Grand
Jury" an essential element of the federal criminal justice
system. A grand jury is a body that conducts its business in
private. The Framers knew this as well as we do. "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." Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211, 218 n.9 (1979); see also United
States v. Procter & Gamble, 356 U.S. 677, 681 (1958); Pitts-
burgh Plate Glass Co. v. United States, 360 U.S. 395, 399
(1959).
The secrecy of grand jury proceedings is today preserved
through Fed. R. Crim. P. 6(e). Grand jurors, prosecutors,
stenographers and others are forbidden from disclosing "mat-
ters occurring before the grand jury." 4 This phrase--"mat-
ters occurring before the grand jury"--includes not only what
has occurred and what is occurring, but also what is likely to
occur. Encompassed within the rule of secrecy are "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." SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.
Cir. 1980) (en banc); Fund for Constitutional Gov't v. Na-
tional Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir.
1981).
With respect to ancillary judicial proceedings, "the court
shall order a hearing on matters affecting a grand jury
proceeding to be closed to the extent necessary to prevent
disclosure of matters occurring before a grand jury." Fed. R.
Crim. P. 6(e)(5).5 Furthermore, "records, orders and subpoe-
nas relating to grand jury proceedings shall remain under
seal to the extent and for such time as necessary to prevent
disclosure of matters occurring before a grand jury." Fed. R.
Crim. P. 6(e)(6). The Advisory Committee believed that the
rules did "not violate any constitutional right of the public or
media to attend" such ancillary proceedings because no such
constitutional right exists. Fed. R. Crim. P. 6(e)(5) advisory
__________
4 Rule 6(e)(2) General Rule of Secrecy.
A grand juror, an interpreter, a stenographer, an operator of
a recording device, a typist who transcribes recorded testimo-
ny, an attorney for the government, or any person to whom
disclosure is made under paragraph 3(A)(ii) of this subdivision
shall not disclose matters occurring before the grand jury,
except as otherwise provided for in these rules. No obligation
of secrecy may be imposed on any person except in accordance
with this rule. A knowing violation of Rule 6 may be punished
as a contempt of court.
5 "Counsel or others allowed to be present at the closed hearing
may be put under a protective order by the court." Fed. R. Crim.
P. 6(e)(5) advisory committee's note.
committee's note. The Supreme Court and Congress must
have thought the same. See Supreme Court Order of April
28, 1983, authorizing the Chief Justice to transmit then-
proposed Rules 6(e)(5) and 6(e)(6) to Congress.
In light of Rule 6(e), the constitutionality of which is not
questioned, the press must take a narrow view of the purport-
ed First Amendment right of access. It cannot, and does not,
claim a right to attend every minute of every hearing ancil-
lary to the grand jury's investigation and it does not seek full
disclosure of all pleadings and other papers filed in connection
with such hearings. The press is not entitled, by the Consti-
tution or by rule, to information about "matters occurring
before the grand jury." But the press thinks the First
Amendment entitles it to whatever else remains.
As to pleadings and papers, the press has no basis for
complaint. A rule of the district court, not mentioned in the
press's opening or reply brief, gives it the most it could
expect from its constitutional claim. Local Rule 302 deals
with motions, applications, and orders "filed in connection
with a grand jury subpoena or other matter occurring before
a grand jury." 6 "Papers, orders, transcripts of hearings
subject to this Rule, or portions thereof, may be made public
by the Court on its own motion or on motion of any person
upon a finding that continued secrecy is not necessary to
__________
6 Local Rule 302 provides:
A motion or application filed in connection with a grand jury
subpoena or other matter occurring before a grand jury, all
other papers filed in support of or in opposition to such a
motion or application, and all orders entered by the Court in
connection therewith, shall be filed under seal. Such a motion
or application shall be assigned a Miscellaneous case number.
All hearings on matters affecting a grand jury proceeding shall
be closed, except for contempt proceedings in which the alleged
contemnor requests a public hearing. Papers, orders and
transcripts of hearings subject to this Rule, or portions thereof,
may be made public by the Court on its own motion or on
motion of any person upon a finding that continued secrecy is
not necessary to prevent disclosure of matters occurring before
the grand jury.
prevent disclosure of matters occurring before the grand
jury." D.D.C.R. 302.7 A portion of a transcript filed in these
appeals and the representations of non-press counsel at oral
argument convince us that the Chief Judge is implementing
Rule 302 by redacting documents. It appears that any delay
in the release of redacted documents is, at least in part,
attributable to some of the attorneys who participated in the
__________
7 Other district courts similarly implement Fed. R. Crim. P.
6(e)(5) and (6). See, e.g., C.D. Cal. R. 8.3 (proceedings involving
applications for immunity, motions to quash subpoenas, and "other
contested matters affecting grand jury proceedings prior to the
indictment stage" shall be "closed to the public"); N.D. Ill. R. 1.04
("all records ... which relate to grand juries including grand jury
subpoenas ... docket of grand jury proceedings, motions and
orders relating to grand jury subpoenas ... shall be suppressed
and released only on order of the Chief Judge"); S.D. Ind. R. 10.1(c)
("All motions, orders, and other filings pertaining to matters before
[the] grand jury shall ... be maintained by the Clerk under seal,
without necessity for a motion to seal or order"); D. Mass. R.
106.1(b) (all subpoenas, motions, pleadings, and other documents
filed with the clerk concerning or contesting grand jury proceedings
shall be sealed and impounded unless otherwise ordered by the
court); E.D. Mich. R. 6.1 ("a motion or application filed in connec-
tion with a grand jury subpoena or other matter occurring before a
grand jury, all other papers filed in support of or in opposition to
such a motion or application, and all orders entered by the Court in
connection therewith, shall be filed under seal"); D. Mont. R. 105-4
("grand jury matters, praecipes, subpoenas and returns will not be
disclosed ... without an order of court"); E.D. Pa. R. 6.1(c)(4) ("all
motions, affidavits or other papers relative to legal proceedings
relating to grand jury investigations shall be automatically im-
pounded, i.e., filed under seal by the Clerk of the Court"); M.D.
Tenn. R. 6(b)(4) ("[a]ll matters pertaining to the grand jury ...
shall be placed and maintained under seal by the Clerk of the Court
absent a specific order from a district judge to the contrary"); W.D.
Wash. R. 6(h)(2) (clerk "shall accept for filing under seal without the
need for further judicial authorization all motions and accompanying
papers designated by counsel as related to Grand Jury matters");
E.D. Wis. R. 21.01 ("all subpoenas, motions, pleadings and other
documents ... concerning or contesting ongoing grand jury pro-
ceedings shall be treated as sealed documents").
ancillary proceedings and who were ordered some time ago to
prepare redacted copies for the Chief Judge's review. The
Chief Judge's adherence to Rule 302 is also demonstrated by
her order of February 24, 1998, granting the press's motion
to unseal certain papers filed by President Clinton in connec-
tion with his motion for an order to show cause.
As to attendance at ancillary hearings, local Rule 302
states, "All hearings on matters affecting a grand jury pro-
ceeding shall be closed, except for contempt proceedings in
which the alleged contemnor requests a public hearing."
Rule 302 could be read as requiring the courtroom to be
closed regardless of whether the hearing will reveal matters
occurring before the grand jury. We seriously doubt that
this reading is correct. Given Rule 6(e)(5)--ancillary pro-
ceedings shall "be closed to the extent necessary to prevent
disclosure of matters occurring before a grand jury"--local
Rule 302 appears to mean only that, as an initial matter, all
proceedings relating to the grand jury shall be closed, subject
to an order opening the proceedings. On the limited record
we have before us, we cannot be certain how the Chief Judge
has interpreted the local rule. At any rate, the press has
mounted no direct argument against the constitutionality of
Rule 302; as we said before, its briefs do not even mention it.
Whether, on the stricter reading, the rule would exceed the
district court's authority to implement Rule 6(e)(5) is there-
fore an issue that has not been properly raised and one we do
not decide. See Fed. R. Crim. P. 57(a)(1) (providing that
district court rules "shall be consistent with" Acts of Con-
gress and rules adopted pursuant to 28 U.S.C. s 2072).
As a matter of judicial administration, initially closing all
ancillary proceedings makes good sense. If a hearing is
about something "affecting" a grand jury investigation, there
will nearly always be a danger of revealing grand jury
matters.8 Consider a challenge to a witness's claim of a
__________
8 District court hearings on the motions filed by the press in
this matter are of course an exception. These motions related to
the grand jury but obviously revealed nothing about its workings.
For that reason, we ordered the Chief Judge's orders denying the
testimonial privilege. The prosecutor appears before the
Chief Judge seeking an order to compel testimony. The
witness's identity, the fact that he was subpoenaed to testify,
the fact that he invoked the privilege in response to ques-
tions, the nature of the questions asked--all these would be,
according to our precedent, SEC v. Dresser Industries, Inc.,
628 F.2d at 1382, "matters occurring before the grand jury."
To suppose that the First Amendment compels the court to
conduct such hearings by placing the witness behind a screen
and by emptying the courtroom each time a grand jury
matter reaches the tip of an attorney's or the judge's tongue
is to suppose the ridiculous. We fully agree with Judge
Becker, writing for the court in United States v. Smith, 123
F.3d 140, 153 (3d Cir. 1997), that "courts cannot conduct their
business that way," nor should they be compelled to do so.
Of course, some ancillary proceedings might be conducted
in such a way that there is no danger of grand jury matters
being revealed. Rule 6(e)(5) binds the courts of appeals (and
the Supreme Court) as well as the district courts. See Fed.
R. Crim. P. 1 & 54(a). In cases on appeal from orders issued
in ancillary proceedings, which we usually caption "In re
Sealed Case," we have sometimes taken portions of briefs and
other papers under seal, and then held the oral argument in
open court after assuring ourselves that no grand jury matter
would be discussed. On other occasions, we have closed the
courtroom for oral argument. In administering Rule 6(e)(5),
appellate courts have a comparative advantage over district
courts. We do not hear from witnesses. Oral arguments on
appeal are always preceded by written arguments, usually
filed well in advance. The briefs refine the legal points of
contention and enable us to determine whether discussion of
grand jury matters at oral argument will be needed. In the
district court, ancillary proceedings generally proceed at a
more rapid pace, the proceedings are typically not as struc-
tured, issues are not always as highly refined, witnesses may
__________
motions to be unsealed. We think it safe to say that ancillary
hearings of this sort are not the focus of the press's First Amend-
ment claim.
be present, and written presentations may be abbreviated. A
proceeding in the district court to quash a subpoena, or to
compel testimony, or to immunize a witness would, it seems
to us, almost invariably reveal matters occurring before the
grand jury, and thus may properly be closed to the public.
In ancillary proceedings dealing with other subjects, however,
it may be difficult to determine at the outset whether grand
jury matters might wind up being discussed. In all events, if
the Chief Judge can allow some public access without risking
disclosure of grand jury matters--either because the subject
of the proceeding removes the danger or because the pro-
ceedings may be structured to prevent the risk without
disruption or delay (see United States v. R. Enterprises, 498
U.S. 292, 298 (1991))--Rule 6(e)(5) contemplates that this
shall be done. But it will be done because the Federal Rules
of Criminal Procedure confer this authority on district courts,
not because the First Amendment demands it.
Recognizing a First Amendment right to force ancillary
proceedings to be conducted without referring to grand jury
matters would create enormous practical problems in judicial
administration, and there is no strong history or tradition in
favor of doing so. The Supreme Court ruled in Gannett Co.
v. DePasquale, 443 U.S. 368 (1979), that the First Amend-
ment did not entitle members of the media to attend a
pretrial suppression hearing, at least so long as they could
receive copies of the transcript at a later date after the
danger of prejudice to the defendant had passed. The Court
reached the opposite conclusion in Press-Enterprise Co. v.
Superior Court (Press-Enterprise II), 478 U.S. 1, 12, 13
(1986), holding that a "qualified First Amendment right of
access attaches to preliminary hearings in California"--that
is, probable cause hearings "sufficiently like a trial to justify"
the conclusion that they should be open. One of the main
differences between the two cases was that although the
"near uniform practice of state and federal courts has been to
conduct preliminary hearings in open court," Press-
Enterprise II, 478 U.S. at 10; see also id. at 8, the Court in
Gannett could identify no long-standing tradition of public
access to pretrial suppression hearings. 443 U.S. at 384-93.
There is likewise no such tradition regarding ancillary pro-
ceedings relating to the grand jury. See, e.g., Levine, 360
U.S. at 615, stating with regard to such a proceeding, "the
courtroom had been properly, indeed, necessarily cleared." 9
The press directs us to a 1980 report by the General Account-
ing Office--a report concerning the need to improve grand
jury secrecy before the adoption of Rules 6(e)(5) and 6(e)(6)--
as evidence that there is a "tradition of accessibility" to
ancillary hearings. See Brief for Appellants at 17-19. The
GAO Report, however, did not suggest that there was any
widespread or longstanding history of openness. Rather,
GAO discovered a divergence of opinion among judges about
whether "proceedings ancillary to the grand jury proceedings
... should be open to the public." Comptroller General,
More Guidance and Supervision Needed Over Federal Grand
__________
9 In this Circuit, proceedings concerning compliance with grand
jury subpoenas and objections to subpoenas on the ground of
privilege are sealed in the district court. See Sealed v. Sealed, No.
95-446 (D.D.C. filed Dec. 12, 1995), rev'd and remanded, In re
Sealed Case, 124 F.3d 230 (D.C. Cir. 1997) (motion to quash on
grounds of attorney-client and work-product privileges), cert. grant-
ed sub nom. Swidler & Berlin v. United States, 118 S. Ct. 1358
(1998); Sealed v. Sealed, No. 95-377 (D.D.C. filed Nov. 6, 1995),
rev'd and remanded, In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)
(action to compel production of subpoenaed documents which were
withheld on basis of attorney-client privilege and work product
immunity). Other courts also routinely close hearings on motions
to quash grand jury subpoenas. See In re Grand Jury Proceed-
ings, 867 F.2d 539, 540 n.1 (9th Cir. 1988) ("All documents and
briefs in this matter have been filed under seal to protect the
secrecy of ongoing grand jury proceedings. The true names of
appellant Doe and his former attorney Mary Roe are not revealed
in this opinion."); In re Two Grand Jury Subpoenae Duces Tecum,
769 F.2d 52, 53 (2d Cir. 1985) ("Appellant is the custodian of records
of a corporation whose name, along with the briefs and records in
this case, remains under seal to protect the secrecy of the grand
jury proceedings."); In re Grand Jury Empanelled March 8, 1983,
579 F. Supp. 189, 192 (E.D. Tenn. 1984) (ordering that hearings
relating to motions to quash grand jury subpoenas be closed and
"motions, responses to motions, and briefs which tend to reveal the
substance of grand jury subpoenas" be sealed).
Jury Proceedings 5 (1980). "Of the 15 judges we interviewed
in 6 districts, 7 routinely hold preindictment proceedings in
open court, 4 routinely close them, and 4 decide when to open
or close them on a case-by-case basis." Id. at 8-9. We
therefore agree with Smith, 123 F.3d at 149, that neither the
press nor any member of the public has a First Amendment
right to demand that the Chief Judge conduct open ancillary
hearings in a way that would not reveal grand jury matters.
Accord In re Grand Jury Subpoena (John Doe No. 4), 103
F.3d 234, 242 (2d Cir. 1996); In re Subpoena to Testify Before
Grand Jury Directed to Custodian of Records, 864 F.2d 1559
(11th Cir. 1989).
The press also tells us that, at least with respect to
disputes about executive privilege, there is a tradition of open
proceedings. See Brief for Appellants at 11-14. Many of the
instances identified, however, arose in response to congres-
sional inquiries, or trial subpoenas, the most famous of which
is United States v. Nixon, 418 U.S. 683 (1974). It is true that
Chief Judge Sirica held an open hearing on President Nixon's
very public refusal to comply with a grand jury subpoena
duces tecum on the grounds of executive privilege. See In re
Grand Jury Subpoena, 360 F. Supp. 1, 9 (D.D.C. 1973). But
this example surely proves too much. Chief Judge Sirica's
opinion, and we assume the transcript of the hearing itself,
contains references to numerous "matters occurring before
the grand jury" within Rule 6(e)'s meaning. See, e.g., id. at 3,
10, 11. Yet in this case the press concedes that the First
Amendment confers no right of access to such matters.
Furthermore, Chief Judge Sirica conducted the hearing be-
fore adoption of Rule 6(e)(5). As against this example stands
the most recent case we heard dealing with an assertion of
executive privilege during a grand jury proceeding. In that
case, the district court closed the hearing to the public and
our opinion revealed no grand jury matter. See Sealed v.
Sealed, No. 95-192 (D.D.C. filed June 7, 1995), vacated and
remanded, In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).
There can be no doubt that assertions of executive privilege
are rightly matters of intense public interest. But there have
been too few examples of open ancillary hearings dealing with
the privilege in the grand jury context to suggest any kind of
trend, let alone an "unbroken, uncontradicted history." Rich-
mond Newspapers v. Virginia, 448 U.S. 555, 573 (1980)
(Burger, C.J.); see also id. at 565-68. There also can be no
doubt of the value of public scrutiny of assertions of executive
privilege. But as the Supreme Court emphasized in Press-
Enterprise II, grand jury proceedings give rise to strong
countervailing considerations. "[I]t takes little imagination to
recognize that there are some kinds of government operations
that would be totally frustrated if conducted openly. A
classic example is that the 'proper functioning of our grand
jury system depends upon the secrecy of grand jury proceed-
ings.' " 478 U.S. at 8-9 (quoting Douglas Oil, 441 U.S. at
218). The press in this case is not, in any event, barred from
receiving non-protected details about what transpired before
the court. The "denial of access," thus, is "not absolute but
only temporary." Gannett, 443 U.S. at 393. Local Rule 302
provides that on the motion of "any person," or sua sponte,
the court may make publicly available "portions" of "tran-
scripts" of ancillary proceedings "upon a finding that contin-
ued secrecy is not necessary to prevent disclosure of matters
occurring before the grand jury." During oral argument,
counsel for the White House informed us that the process of
redacting transcripts of proceedings involving executive privi-
lege was underway, pursuant to the Chief Judge's directive.
A problem remains. If the press is given no access to the
fact that some sort of ancillary proceeding has taken place, or
will take place, it may be unable to invoke Rule 302. In
Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir.
1991), we held that there was a First Amendment right of
access to plea agreements because these "have traditionally
been open to the public and public access to them enhances
both the basic fairness of the criminal proceeding and the
appearance of fairness." Id. at 288. In light of this, we also
held that trial courts must follow specific procedural prerequi-
sites before granting a motion to seal. Included among these
were an opportunity to be heard, specific findings on the
record, and entry on the public docket. Id. at 289. Here,
although we have found no such right of access under the
Constitution, and hence no "procedural component" of the
First Amendment violated by the Chief Judge's refusal to
enter items under seal on the public docket, we have also
recognized that local Rule 302 provides a limited means for
disclosing non-secret matters. The rule requires that mo-
tions or applications filed in connection with matters occur-
ring before a grand jury "shall be assigned a Miscellaneous
case number." The press tells us that "all papers filed with
the Clerk's office that have any relation at all to grand jury
proceedings are filed under seal and are not included in the
public docket," Brief for Appellants at 39. We can under-
stand why a descriptive caption on a case might reveal grand
jury matters, but we cannot understand why a designation
such as "In re Grand Jury Proceedings," followed by a
miscellaneous case number would have that consequence.
The Chief Judge, in her memorandum opinion, did not explain
why, in light of Rule 302, there has been such a blanket
sealing of the docket. As to this subject, we will therefore
remand the case for reconsideration.
The press has also advanced what it calls a common law
right of access to ancillary proceedings, a right resting on the
Supreme Court's recognition of a common law right of access
to "inspect and copy judicial records." Nixon v. Warner
Communications, 435 U.S. 589, 598 (1978); see also Washing-
ton Legal Found. v. United States Sentencing Comm'n, 89
F.3d 897, 902 (D.C. Cir. 1996). The common law right,
however, is not absolute. See United States v. Hubbard, 650
F.2d 293, 315 (D.C. Cir. 1980) (listing "time-honored excep-
tions") (quoting Nixon, 435 U.S. at 598). There is, for
instance, no right of access to "documents which have tradi-
tionally been kept secret for important policy reasons."
Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th
Cir. 1989); see also United States v. Corbitt, 879 F.2d 224,
228 n.2 (7th Cir. 1989); In re Nat'l Broad. Co., 635 F.2d 945,
952 n.4 (2d Cir. 1980). Although some have identified a
common law tradition of public access to criminal trials, this
never extended to preindictment, pretrial proceedings involv-
ing a grand jury. Gannett Co., 443 U.S. 368, indicates as
much. In any event, even if there were once a common law
right of access to materials of the sort at issue here, the
common law has been supplanted by Rule 6(e)(5) and Rule
6(e)(6) of the Federal Rules of Criminal Procedure. These
Rules, not the common law, now govern. See In re Grand
Jury Subpoena (John Doe No. 4), 103 F.3d 234, 237 (2d Cir.
1996).
Much of what we have already written relates to the press's
motions regarding the two specific ancillary proceedings. In
the first of these, the press sought access to proceedings,
papers, orders, and rulings "concerning assertions by Francis
D. Carter of objections to the grand jury subpoena issued by
the Independent Counsel." See Motion for Access to Pro-
ceedings Concerning Objections (filed Mar. 5, 1998). The
Chief Judge, relying on Fed. R. Crim. P. 6(e)(5) and (6), found
that "access to these matters poses a significant risk of
disclosing information which has occurred or which may occur
before the grand jury." We have held that "matters occur-
ring before the grand jury" include "the identities of wit-
nesses." Fund for Constitutional Gov't, 656 F.2d at 869; see
also In re Grand Jury Proceedings, 914 F.2d 1372, 1374 (9th
Cir. 1990) (noting that the government is not free to "publish
lists of prospective or former grand jury witnesses"); In re
Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir.
1980) ("We construe the secrecy provisions of Rule 6(e) to
apply not only to disclosures of events which have already
occurred before the grand jury, such as a witness's testimony,
but also to disclosures of matters which will occur, such as
statements which reveal the identity of persons who will be
called to testify."). The Chief Judge may have believed that
to have granted even the press's motion for redacted versions
of transcripts or other papers would have been to confirm the
identity of a person the grand jury had subpoenaed. Cf.
Andresen v. Maryland, 427 U.S. 463, 474 (1976) (noting that
"the very act of production may constitute a compulsory
authentication of incriminating information").10 If the blanket
__________
10 The Chief Judge's order denying the motion mentioned Mr.
Carter by name. We do not view this as confirming his status as
denial of the motion rested on that ground, we do not believe
it can be sustained. By the time of the Chief Judge's order it
was no longer a secret that the grand jury had subpoenaed
Carter. Carter's attorney virtually proclaimed from the roof-
tops that his client had been subpoenaed to testify before the
grand jury. See, e.g., Lewinsky Ex-Lawyer Fights to Keep
His Notes from Starr, Boston Globe, Mar. 5, 1998, at A13;
Toni Locy, Ex-Intern's First Attorney Seeks to Have Subpoe-
na Quashed, Wash. Post, Mar. 5, 1998, at A14; CBS Morning
News (CBS television broadcast, Mar. 5, 1998); All Things
Considered (NPR radio broadcast, Mar. 4, 1998); David
Willman & Robin Wright, Ex-Lewinsky Lawyer Fights Starr
Subpoena, L.A. Times, Mar. 3, 1998, at A1; John Mintz,
Lewinsky's First Lawyer is Defended, Wash. Post, Feb. 5,
1998, at A1. It is true that "Rule 6(e) does not create a type
of secrecy which is waived once public disclosure occurs." In
re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994) (quoting Barry
v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990)). But it
is also true that "when information is sufficiently widely
known ... it has lost its character as Rule 6(e) material." Id.
Carter's identity as a person subpoenaed to appear before the
grand jury has become such information, not because of press
reports relying on unnamed sources, but because Carter's
attorney decided to reveal this fact to the public. Cf. United
States v. R. Enterprises, 498 U.S. at 294-96.
Still, the Chief Judge may have refused to provide redacted
versions of the material requested by the press (as local Rule
302 contemplates) for reasons other than protecting the se-
crecy of Carter's identity. The particular items, documents,
or testimony the grand jury seeks from Carter are not
matters of public record, nor are Carter's specific grounds for
resisting. Such "matters occurring before the grand jury"
may have been woven tightly into the ancillary proceeding
involving Carter, so tightly that the Chief Judge believed that
none of the material could be released. In a similar situation,
__________
someone called by the grand jury. The Chief Judge merely para-
phrased the press's own submission.
the special division of this court recognized that sometimes
"redaction is simply not possible." In re North, 16 F.3d at
1242. While this may have been the Chief Judge's reasoning,
we cannot tell from the explanation given in her order. Our
only recourse, therefore, is to vacate the order insofar as it
denied the motion for redacted versions of the transcript and
other papers and remand the case for reconsideration.
The final issue deals with the press's motion for public
access to hearings and transcripts relating to President Clin-
ton's motion to show cause. In response to an earlier press
motion requesting unsealing, the Chief Judge conducted a
Rule 302 analysis, stating: "After having reviewed the Presi-
dent's motion for order to show cause and the accompanying
materials, the Court finds that continued sealing of that
motion is not necessary to prevent disclosure of matters
occurring before the grand jury." In ruling on the motion for
access to hearings and transcripts, however, the Chief Judge
found that "access to the transcripts poses a significant risk
of disclosing information which has occurred or which may
occur before the grand jury." The judge did not mention
whether redacted transcripts might be made public, although
Rule 302 states that the court may release "portions" of
papers, orders, and transcripts of hearings. D.D.C.R. 302.
The Chief Judge's silence on the subject stems from the
press's failure to make it clear that it was requesting only
redacted versions of the transcripts. The press proposed an
order, but the order did not mention the possibility of redac-
tion and it seems clear to us that the Chief Judge did not
believe a motion for a redacted copy had been made. Thus,
as matters now stand, the press has requested only an entire
unredacted transcript of the proceedings. We have no reason
to doubt the Chief Judge's judgment that releasing the entire
transcript would threaten to reveal grand jury matters. The
show cause motion itself concerns claims that the Indepen-
dent Counsel had been leaking grand jury material to the
press. To decide such a motion one would naturally need to
know whether any of the published reports actually men-
tioned matters that had occurred before the grand jury. If,
however, the press clearly requests redacted versions of these
transcripts in the future, we are confident that the Chief
Judge would act on the motion consistent with the limits of
Rule 6(e)(6) and local Rule 302.
* * *
We remand for reconsideration the Chief Judge's order
insofar as it denies the motion for entry of items on the public
docket and vacate and remand the Chief Judge's order deny-
ing the motion for redacted papers, orders, and transcripts in
the Carter proceeding. In all other respects, the orders are
affirmed.
So ordered.