In re Petition For Order Directing Release Of Records (Lepore v. U.S.)

The general rule that grand jury proceedings are not open to the public, embodied in Federal Rule of Criminal Procedure 6(e)(3), serves important purposes: encouraging uninhibited deliberations by preserving grand jurors’ anonymity, protecting witnesses from retaliation or intimidation, and avoiding alerting suspects to the grand jury’s investigation.  Where disclosure would not threaten those purposes, federal courts in numerous cases have exercised their inherent authority to unseal grand jury records in exceptional circumstances beyond those listed in Rule 6(e).  In several cases, including cases brought by Public Citizen Litigation Group (see, e.g., In re Petition of Kutler), courts have held that one such exceptional circumstance in which courts may order release of grand jury records is where a case is one of significant historical importance.

In this case, historian Jill Lepore sought release of 1971-1972 grand jury records concerning the Pentagon Papers. Over the government’s opposition, the district court granted the request in part. The government appealed. In April 2020, on behalf of American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists, we filed an amicus curiae brief in support of disclosure.

Meanwhile, in February 2020, Public Citizen Litigation Group, American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists had submitted to the Committee on Rules of Practice and Procedure a proposal to amend Rule 6(e) of the Federal Rules of Criminal Procedure. The proposed amendment would make clear that district courts have authority to order disclosure, in appropriate circumstances, of grand jury materials of historical significance. The Committee considered the proposal and the views of the Department of Justice (which supported a revised rule), but in the fall of 2021 voted against revising the rule.

In February 2022, the First Circuit held in the Lepore case that the district court lacked authority to grant the petition to unseal the grand jury records based on their historical importance.