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Carlson v. United States

United States District Court, N.D. Illinois, Eastern Division

June 10, 2015

ELLIOT CARLSON, et al., Petitioners,


RUBÉN CASTILLO, Chief District Judge.

Elliot Carlson ("Carlson"), a naval historian and author, along with the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History (collectively, "Petitioners") filed a petition (the "Petition") requesting the release of transcripts of witness testimony given during a grand jury investigation of the Chicago Tribune (the "Tribune ") in August 1942. (R. 1, Pet. at 2; R. 4, Pet'rs' Mem. at 1-2.) For the reasons stated below, the Court grants Petitioners' request.


On June 7, 1942, the Tribune published a front-page story headlined, "Navy Had Word Of Jap Plan to Strike At Sea." (R. 4, Pet'rs' Mem. at 2.) The author was Tribune war correspondent Stanley Johnston, who had been traveling aboard the U.S. Naval ship the USS Barnett. (Id.; R. 4-1, Carlson Decl. ¶ 11.) The article cited "reliable sources in naval intelligence" and suggested that the Navy had detailed information regarding Japan's military plan to attack the United States at Midway in advance of the battle. (R. 4, Pet'rs' Mem. at 2-3.) The article appeared to have been based on a classified dispatch revealing that the Navy had successfully cracked the radio codes used by the Japanese to encrypt their communications. (Id. at 3.) Other newspapers, including the New York News and the Washington Times-Herald, republished the Tribune story. (R. 4, Pet'rs' Mem. at 3; R. 4-1, Carlson Decl. ¶ 16.) The Tribune article angered high-ranking military officials, as well as President Franklin D. Roosevelt, who called for a federal investigation of the Tribune for violations of the Espionage Act of 1917.[1] (R. 4, Pet'rs' Mem. at 3.)

In August 1942, the United States Department of Justice ("DOJ") convened a grand jury in Chicago to investigate whether Tribune staff, including Johnston and managing editor J. Loy Maloney, had violated the Espionage Act. (Id. ) The grand jury heard testimony from Rear Admiral Frederick C. Sherman, Commander Morton Seligman, Lieutenant Commander Edward O'Donnell, Lieutenant Commander Edward Elridge, and four unknown officers. (Id. ) Maloney and Wayne Thomis of the Tribune also testified, as did Ralph Sharp of the New York Daily News and Frank Waldrop of the Washington Times-Herald. (Id. ) On August 19, 1942, the grand jury declined to issue any indictments. (Id. ) The Tribune proclaimed this decision as a victory for the First Amendment, and the following day ran a front-page story that included a depiction of the Tribune Tower as a citadel for press freedom. (R. 1, Pet. at 4.) The Tribune investigation marks the first and only time in U.S. history that the federal government attempted to prosecute a major newspaper for an alleged violation of the Espionage Act. (Id. at 5.)

On November 18, 2014, Petitioners filed the Petition requesting that the Court unseal the transcripts of witness testimony given during the grand jury investigation of the Tribune. (R. 1, Pet.) Carlson is in the process of writing a book to be published by the Naval Institute Press concerning the Tribune scandal. (R. 4-1, Carlson Dec1.113.) In researching his book, he has spent the past two years conducting extensive research of newspaper archives, presidential libraries, and other repositories of historical information. (Id. ¶ 5.) He has also filed several Freedom of Information Act ("FOIA") requests, and as a result has received extensive information related to the government's investigation of the Tribune, including 2, 500 pages of DOJ materials and 1, 000 pages of Federal Bureau of Investigation ("FBI") records. (Id. ¶ 6.) These files include summaries of interviews of Navy personnel conducted by government investigators, transcripts of DOJ interviews with Johnston and Malone, and correspondence between the Navy, DOJ, FBI, and Tribune staff members. (Id. 16-7.) These records, however, did not include the transcripts of the witnesses' testimony before the grand jury. (Id. ) At present, the transcripts remain under seal at a National Archives and Records Administration ("NARA") facility in College Park, Maryland.[2] (Id. ¶ 9.)

Carlson and a coalition of historical organizations now seek to have the transcripts released. (R. 4, Pet'rs' Mem. at 2-3.) They argue that the public has a compelling interest in the release of this information because of the historical significance of the Tribune investigation. (Id. at 3-4.) The government opposes Petitioners' request, and argues that "historical significance" is not a permitted reason for disclosing grand jury transcripts under the Federal Rules of Criminal Procedure. (R. 11, Gov't's Opp'n at 7.) In reply, Petitioners argue that this Court has inherent authority to order disclosure of grand jury transcripts in special circumstances, and that it is appropriate to do so in this case. (R. 13, Pet'rs' Reply at 1-2.)


Article III of the U.S. Constitution provides: "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. CONST. art. III § 1. It has long been recognized that federal courts are vested with certain inherent authority in the exercise of their duties. See Degen v. United States, 517 U.S. 820, 823 (1996) ("Courts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities."); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980) ("The inherent powers of federal courts are those which are necessary to the exercise of all others.' (citation omitted)). "These powers are governed not by rule or statute but by the control necessarily vested in the courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Chambers v. NASCO, 501 U.S. 32, 43 (1991) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962)). Thus, federal courts may, in certain circumstances, "formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983).

The scope of this inherent authority, however, is not without limits. "Because of their very potency, inherent powers must be exercised with restraint and discretion." Chambers, 501 U.S. at 44; see also 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."). In particular, courts are not permitted to exercise their inherent authority to create new laws or invalidate existing laws, as "courts can only interpret congressional acts. They cannot legislate." De Soto Sec. Co. v. Comm'n of Internal Revenue, 235 F.2d 409, 411 (7th Cir. 1956); see also Bank of Novia Scotia v. United States, 487 U.S. 250, 254 (1988) ("It is well established that even a sensible and efficient use of the supervisory power... is invalid if it conflicts with constitutional or statutory provisions.' (citation omitted)). Any other interpretation "would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." United States v. Payner, 447 U.S. 727, 737 (1980).


I. Whether the Court has Authority to Release the Transcripts

There is a long-standing tradition in the United States, "older than our Nation itself, " that grand jury proceedings are to be kept secret. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959). The Supreme Court has outlined several reasons for maintaining grand jury secrecy:

(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; and (5) to protect the innocent accused who is ...

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