February 18, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 9244 - Ruben
Castillo, Chief Judge.
WOOD, Chief Judge, and Kanne and Sykes, Circuit Judges.
World War II, the U.S. Office of War Information warned the
populace that "loose lips sink ships." See The
Phrase Finder, http://www.phrases.org.uk/
meanings/237250.html (last visited Sept. 15, 2016). But what
if the ships sailed some 70 years before the tongues wag?
That is the problem we face in the present case, in which
Elliot Carlson, along with a number of scholarly,
journalistic, and historic organizations, seeks access to
grand-jury materials sealed decades ago. The materials
concern an investigation into the Chicago Tribune in
1942 for a story it published revealing that the U.S.
military had cracked Japanese codes. The government concedes
that there are no interests favoring continued secrecy. It
nonetheless resists turning over the materials, on the
sweeping ground that Rule 6(e) of the Federal Rules of
Criminal Procedure entirely eliminates the district
court's common-law supervisory authority over the grand
jury. It takes the position that no one (as far as we can
tell) has the power to release these documents except for one
of the reasons enumerated in Rule 6(e)(3)(E). If that is so,
then Carlson and his allies must fail, because his request is
outside the scope of Rule 6(e).
nothing in the text of Rule 6(e) (or the criminal rules as a
whole) that supports the government's exclusivity theory,
and we find much to indicate that it is wrong. In fact, the
Rules and their history imply the opposite, which is why
every federal court to consider the issue has adopted
Carlson's view that a district court's limited
inherent power to supervise a grand jury includes the power
to unseal grand-jury materials when appropriate. Because the
parties agree that this is an appropriate instance (if, in
fact, the district court has this power) we affirm the order
of the district court.
story behind our case is a thrilling one, involving
espionage, World War II, and legal wrangling. The year is
1942; the setting, the Pacific Theater. After Pearl Harbor
was attacked in December 1941, the shocked U.S. Navy sprang
into action. The Japanese military hoped to sink the
remainder of the U.S. fleet and was aiming to do so in an
attack on Midway Island and the Aleutian Islands, nearly 2,
000 miles away, in June 1942. The Japanese planned to invade
the Aleutians with a small detachment so as to lure U.S.
ships out of their safe harbors, then attack those ships with
a larger force while simultaneously invading and occupying
Midway as the U.S. Navy was distracted. See Norman Stone,
World War Two 123-24 (2012). Instead, the U.S. Navy forces
pulled off a stunning victory, defending Midway and sinking
all five carriers that the Japanese had devoted to the
operation, as well as some other ships. The victory at Midway
was widely seen as a turning point in the Pacific.
Id. at 124.
the U.S. Navy know its plan would work? Unbeknownst to Japan,
the United States had broken some critical Japanese codes
some two years earlier. Anthony Beevor, The Second World War
307 (2012). The U.S. Navy was thus able to figure out
beforehand that Japan's attack on the Aleutians was a
feint, and Japan's real goal was to overtake Midway and
sink U.S. aircraft carriers in the process. Stone,
supra, at 123. As the commander-in-chief of the U.S.
Pacific Fleet explained in a later report, "[h]ad we
lacked early information of the Japanese movement ... the
Battle of Midway would have ended far differently."
Beevor, supra, at 311.
explains why senior U.S. officials were so dismayed when the
Chicago Tribune blew their secret. On June 7, 1942,
the Chicago Tribune's banner headline announced
victory in the Battle of Midway. Right below, the
Tribune dropped another bombshell: "Navy Had
Word of Jap Plan to Strike at Sea." Stanley Johnston,
Chicago Tribune, June 7, 1942, at Al. The article explained
that the United States knew that Japan was planning a minor
attack on one American base as a distraction from a major
attack on another, and this advance notice enabled the Navy
to plan its victorious counterattack. The article appeared to
be-and as we now know, in fact was- based on a classified
Navy communique that alerted naval commanders to the
impending attack on Midway Island.
article's publication had immediate consequences:
President Roosevelt and high-ranking military officials
called for a criminal investigation. The Department of
Justice complied, empaneling a grand jury and launching an
investigation into whether the article's author and other
Tribune staff had violated the Espionage Act of
1917. The grand jury heard testimony from an assortment of
witnesses, including Tribune personnel, several
identified military officers, and three or four unknown
officers. Ultimately, the grand jury did not issue any
indictments, a decision that the Tribune and other
prominent national newspapers hailed as a victory for free
forward to the present, more than 70 years later. Elliot
Carlson is a journalist and historian with a special
expertise in naval history. He is the author of Joe
Rochefort's War: The Odyssey of the Codebreaker Who
Outwitted Yamamoto at Midway, an award-winning book on
the commander who broke one of the Japanese codes. Carlson is
currently writing a book on the Tribune's Midway
article and the ensuing investigation. Carlson and his
co-plaintiffs (to whom we refer in the singular as
"Carlson" for simplicity's sake) filed a
petition in the Northern District of Illinois asking that
court to unseal the transcripts of witness testimony before
the Tribune grand jury.
chose the Northern District of Illinois because it was the
court that originally had supervisory jurisdiction over the
grand jury in question. He argued that this same court has
continuing common-law authority over matters pertaining to
that grand jury including any application to unseal
grand-jury materials. The convening court, for instance,
would have the authority to rule on disclosure pursuant to
Federal Rule of Criminal Procedure 6(e). Carlson acknowledged
that his request falls outside the scope of the circumstances
for releasing grand jury materials enumerated in the Rule.
Nonetheless, relying on In re Craig, 131 F.3d 99 (2d
Cir. 1997), Carlson argued that the district court has the
inherent power to release grand-jury materials in situations
not contemplated by Rule 6(e). He concedes that just as other
inherent powers of the court should not be exercised lightly,
see Dietz v. Bouldin, 136 S.Ct. 1885, 1893 (2016);
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991),
this power too is tightly circumscribed. Craig
identifies numerous factors that a court should weigh when
exercising this limited inherent power.
argued that his request satisfied these criteria, and the
district court agreed with him. It decided first that it
possessed the inherent authority to unseal grand-jury
materials in situations outside the scope of Rule 6(e)(3)(E).
It considered each point identified by Craig and
concluded that disclosure in this case was warranted. It thus
ordered that the transcripts be released. The government has
appealed (and the order has been stayed pending appeal). The
government agrees that if the district court has inherent
authority to unseal grand-jury records, then "the
transcripts have sufficient historical value to warrant
release" under the Craig factors. It argues,
however, that Rule 6(e) contains the exclusive list of
reasons for which a district court may unseal grand-jury
materials, and because historical value is not among them,
the court was wrong to grant Carlson's petition.
turning to the merits of the appeal, we must assure ourselves
that both the district court and we have jurisdiction over
this matter. Because neither Carlson nor any of his fellow
petitioner-appellees were parties to the underlying grand
jury investigation, we must confirm that at least one of them
has standing to bring this claim. See Ezell v. City of
Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011)
("Where at least one plaintiff has standing,
jurisdiction is secure[, ]" citing Vill. Of
Arlington Heights v. Metro. Rous. Dev. Corp., 429 U.S.
252, 264 (1977)). And because Carlson does not invoke a
Federal Rule of Criminal Procedure as the basis for granting
his petition to obtain the records, relying instead on the
court's inherent power, we must confirm that we have
subject-matter jurisdiction. We solicited supplemental briefs
from the parties on these important points.
member of the public, Carlson has standing to assert his
claim to the grand-jury transcripts, because they are public
records to which the public may seek access, even if that
effort is ultimately unsuccessful (perhaps because of
sealing, national security concerns, or other reasons).
Article III of the Constitution limits the federal
courts' power to the adjudication of actual
"Cases" and "Controversies." U.S. CONST.
Art. III. The doctrine of standing has "developed ... to
ensure that federal courts do not exceed" this
authority. Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1547 (2016). To have standing, a plaintiff "must have
(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision." Id. (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). We review
each element in turn.
injury-in-fact is the denial of access to government
documents that he has a right to seek. A plaintiff suffers an
injury-in-fact when she is unable to obtain information that
is statutorily subject to public disclosure. Federal
Elec. Comm'n v. Akins, 524 U.S. 11, 20-21 (1998);
Public Citizen v. Dep't of justice, 491 U.S.
440, 449 (1989). Injury-in-fact can arise from a comparable
common-law source. See Spokeo, 136 S.Ct. at 1549;
Id. at 1550-53 (Thomas, J., concurring) (explaining
that plaintiffs asserting common-law injuries can more easily
demonstrate injury-in-fact than others). Carlson needs only a
"colorable claim" to a right to access these
documents, because "[w]ere we to require more than a
colorable claim, we would decide the merits of the case
before satisfying ourselves of standing." See
Booker-El v. Superintendent, Ind. State Prison, 668
F.3d 896, 900 (7th Cir. 2012); see also Bond v.
Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009).
the question becomes whether Carlson has a colorable claim of
a right to obtain access to these documents. He does. Carlson
argues that grand-jury records are court documents; he argues
further that under the circumstances of this case he has a
right to review them. Although the grand jury operates
according to a "tradition of independence, "
United States v. Williams, 504 U.S. 36, 47 (1992),
"[t]he Constitution itself makes the grand jury part of
the judicial process." Cobbledick v. United
States, 309 U.S. 323, 327 (1940); see also Branzburg
v. Hayes, 408 U.S. 665, 688 (1972) ("the powers of
the grand jury are ... subject to the supervision of a
judge"); Levine v. United States, 362 U.S. 610,
617 (1960) (the grand jury is "an arm of the
court"); Brown v. United States, 359 U.S. 41,
49 (1959) ("[a] grand jury is clothed with great
independence in many areas, but it remains an appendage of
the court") overruled on other grounds by Harris v.
United States, 382 U.S. 162 (1965); Blair v. United
States, 250 U.S. 273, 278 (1919) ("the
inquisitorial function of the grand jury ... [is] incident[
to] the judicial power of the United States").
the grand jury is "part of the judicial process, "
Cobbledick, 309 U.S. at 327, its "minutes and
transcripts" are necessarily "records of the
court." United States v. Procter & Gamble
Co., 356 U.S. 677, 684-685 (1958) (Whittaker, J.,
concurring); see also Standley v. Dep't of
Justice, 835 F.2d 216, 218 (9th Cir. 1987) ("grand
jury materials are records of the district court");
In re Grand Jury Investigation of Cuisinarts, Inc.,
665 F.2d 24, 31 (2d Cir. 1981)
("Cuisinarts") (same); United States
v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (same).
And because they are records of the court, Carlson has a
right to petition for access to them: the public has "a
general right to inspect and copy public records and
documents, including judicial records and documents."
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589,
597 (1978). The denial at the threshold of the right to
petition for access inflicts an injury-in-fact on Carlson.
See Akins, 524 U.S. at 20-21; Public
Citizen, 491 U.S. at 449. That his petition is not
guaranteed to be granted, because a court may find a valid
justification for denying him access, in no way destroys his
standing to seek the documents. See Nixon, 435 U.S.
at 598-99; United States v. Corbitt, 879 F.2d 224,
228 (7th Cir. 1989). To hold otherwise would amount to
denying standing to everyone who cannot prevail on the
merits, an outcome that fundamentally misunderstands what
standing is. See Booker-El, 668 F.3d at 900;
Bond, 585 F.3d at 1073.
public documents such as these, there is no need for Carlson
to show that he has any particular connection to the grand
jury proceeding. As we explained in Jessup v.
Luther, "[representatives of the press and general
public must be given an opportunity to be heard on the
question of ... access to documents." 227 F.3d 993, 997
(7th Cir. 2000); see also Corbitt, 879 F.2d at
228-29 (entertaining newspaper's request to see sealed
pre-sentence report, and analogizing pre-sentence report to
grand jury materials). To hold otherwise would raise First
Amendment concerns. Cf. United States v. Edwards,
672 F.2d 1289, 1294 (7th Cir. 1982) (recognizing that the
"common law right" of public access to court
records "supports and furthers many of the same
interests which underlie those freedoms protected by the
constitution"); Globe Newspaper Co. v. Sup. Ct.for
Norfolk Cnty., 457 U.S. 596, 604, 607 (1982) (holding
First Amendment guarantees access to criminal trials, and
limitations on access are subject to strict scrutiny);
Butterworth v. Smith, 494 U.S. 624, 630 (1990)
(reiterating, in the context of prohibiting a witness from
discussing his testimony, "grand juries are expected to
operate within the limits of the First Amendment"). That
Carlson is a member of the public is sufficient for him to
assert his "general right to inspect and copy ...
judicial records." Nixon, 435 U.S. at 597.
administrative reality that the physical documents are
currently housed in a facility operated by the National
Archives and Records Administration (NARA), rather than in a
storeroom controlled by the district court, does not change
this analysis. NARA is an office of the executive branch; it
manages archival documents "to ensure their continued
preservation by the United States Government." 44 U.S.C.
§ 2107(1). The Judiciary uses NARA to store old paper
case files. See National Archives,
www.archives.gov/research/cat-alog/ (last visited
Sept. 15, 2016) (search for court records). Rule 6(e)(1)
explains that after the conclusion of a grand-jury
investigation, the government's attorneys will
"retain control" of grand-jury materials,
"[u]nless the court orders otherwise." This
indicates that the grand-jury materials are subject to the
court's control. The Committee Notes on Rule 6 further
make this clear by explaining that the amendment was enacted
to "accord with present practice, " but that the
Committee "specifically recognized ... that the court in
a particular case may have reason to order otherwise."
Fed. R. Crim. P. 6(e), Committee Notes 1979. Even when
grand-jury materials are in the custody of government
attorneys, they "remain the records of the courts, and
courts must decide whether they should be made public."
Cuisinarts, 655 F.2d at 31.
easily satisfies the other two elements of Article III
standing. His injury-in-fact is traceable to the
respondent's denial of access to the grand-jury
materials. That injury would be redressed by a court order
granting him the relief he seeks-access to the transcript.
Thus, Carlson has standing to seek access to grand jury
decision in Bond v. Utreras is not to the
contrary-indeed, it supports this position. 585 F.3d 1061
(7th Cir. 2009). In Bond, we drew a sharp line
between civil pre-trial discovery documents that were never
filed with the court and documents that were filed with the
court. Id. at 1066. We held that "documents
filed in court are presumptively open to the
public" and explained that this right of access "is
derived from ... common-law, " codified by statute, and
any "judicially imposed limitations on this right are
subject to the First Amendment." Id. at 1073-74
(emphasis added) (citing, inter alia, 28 U.S.C.
§ 452; Globe Newspaper Co., 457 U.S. at
603-06). We emphasized that although a court may ultimately
decide to shield certain documents from the public, the
"general right of public access ... is enough to give
members of the public standing" to seek them.
Id. at 1074. In contrast, there is no statutory,
rule-based, common-law, or constitutional right of the public
to obtain discovery documents that are never filed with the
court (and that is typically the status of the overwhelming
majority of the documents exchanged in civil discovery). A
non-party thus has no right to intervene to seek them.
Id. at 1074-76 (citing SEC v.
TheStreet.com, 273 F.3d 222, 233 n.11 (2d Cir. 2001)).
grand-jury transcripts that Carlson seeks are not like
privately produced civil discovery that never makes it
through the courthouse door. They are created under the
authority of the grand jury, and they remain at all times
under the power of the court. The Supreme Court has said that
"[a]t the foundation of our federal government the
inquisitorial function of the grand jury and the compulsion
of witnesses were recognized as incidents of the judicial
power of the United States." Blair, 250 U.S. at
280. A grand jury cannot create any materials without the
power of the court being used to empanel the grand jury and
issue and enforce its subpoenas. Levine, 362 U.S. at
617. Grand-jury transcripts are produced under "the
supervision of" the district court, Branzburg,
408 U.S. at 688, and as a result they represent an exercise
of the court's power; they are "filed with the
court, " Bond, 585 F.3d at 1073. They
constitute a form of judicial papers.
grand-jury transcripts are, in their very nature, judicial
documents (just as a transcript of a trial would be), there
is no need for them to become part of the judicial proceeding
through admission into evidence. Smith v. U.S. Dist.
Court for S. Dist. of III, 956 F.2d 647, 650 (7th Cir.
1992) (judicial records to which there is a presumptive right
of access include "transcripts of proceedings" and
"items not admitted into evidence"). Thus, the
presumptive right of access attaches and is sufficient to
"give members of the public standing."
Bond, 585 F.3d at 1073-74. Carlson asserts a
common-law right, and is therefore unlike the journalist in
Bond who could point to "no un-filed pre-trial
discovery materials. Id. at 1066. And we reiterate
that the fact that a rule of criminal procedure or another
compelling reason might lead to the denial of Carlson's
request in no way affects his standing.
conclusion that the records Carlson is seeking are court
records makes it unnecessary for us to reach his alternative
arguments: that they are agency records to which he has a
statutory right of access under the Freedom of Information
Act, 5 U.S.C. § 552, or NARA's enabling statute and
implementing regulations, 44 U.S.C. § 2108(a); or that
he has an independent common-law right to petition the court
for access to them, which gives him an independent basis for
next question is whether the district court was authorized to
entertain this case. We are satisfied that it was. The court
had federal-question jurisdiction under 28 U.S.C. § 1331
because this is an action "arising under the
Constitution, laws, or treaties of the United States."
Id. That Carlson is relying primarily on federal
common law does not change this analysis. See Nat'l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471
U.S. 845, 850 (1985). Because the case raises a substantial
question relating to the scope and meaning of Rule 6(e),
federal-question jurisdiction is also proper under
Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Trust for S. Cal.,463 U.S. 1, 28, 103 (1983).
See also TurnerlOzanne v. Hy-man/Power, 111 F.3d
1312, 1316 (7th Cir. 1997). Resolving that question requires
an examination of the relation between the Federal Rules of
Criminal Procedure and a long-standing ...