Anthony Pitch was a historian researching the Moore’s Ford Lynching of 1946, considered the last mass lynching in American history.  Shortly after the murders took place, President Truman ordered the FBI to investigate, and a district court judge subsequently convened a grand jury that subpoenaed 106 witnesses.  Despite the investigation, however, no indictments were brought, and the murders were never solved.  In February 2014, Pitch petitioned the U.S. District Court for the Middle District of Georgia to unseal grand jury transcripts.  Although the court initially denied the petition because there was no evidence of any grand jury records, it subsequently agreed to unseal the records after Pitch found evidence of records at the National Archives.  The government appealed to the Eleventh Circuit, which affirmed the district court’s decision in February 2019.  Subsequently, the Eleventh Circuit decided to hear the case en banc, or before all of the Eleventh Circuit’s active judges.  In September 2019, CAC filed an amicus curiae brief, requesting that the en banc court affirm the district court’s decision to release the grand jury materials. 

Our brief made several points.  First, the brief explained that the tradition of maintaining the secrecy of grand jury proceedings is not absolute, and courts have regularly disclosed grand jury materials in appropriate circumstances throughout American history, both before and after the adoption of the Federal Rules of Criminal Procedure.

Second, the brief argued that the Federal Rules did not abrogate courts’ inherent authority to release grand jury materials.  For one thing, the text of those Rules does not clearly demonstrate that purpose. Rule 6(e) requires that “[n]o obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B),” and Rule 6(e)(2)(B) does not include district court judges in its list of individuals who “must not disclose a matter occurring before the grand jury.”  Moreover, Rule 6(e)(3)(E) identifies certain circumstances in which district courts “may” disclose grand jury information but does not state that those are the only circumstances in which district courts may disclose grand jury information.

The Advisory Committee history confirms this interpretation.  The Advisory Committee made clear when the Rules were enacted that it intended to “continue the traditional practice of secrecy on the part of members of the grand jury, except when the court permits a disclosure.”  Moreover, the advisory committee considered the very question at issue here in 2011 and concluded that “in the rare cases where disclosure of historic materials had been sought, the district judges acted reasonably in referring to their inherent authority.”

Finally, the brief argued that district courts should be permitted to exercise their inherent authority to disclose materials of historical importance. The typical justifications for the secrecy of grand jury records—such as incentivizing witnesses to testify and preventing defendants from fleeing—are necessarily less salient decades after cases are closed.  And those justifications are clearly outweighed where records of critical moments in our nation’s history are shrouded by the veil of grand jury secrecy.

The Eleventh Circuit held that district courts have no inherent authority to disclose grand jury records outside the listed exceptions in Rule 6(e) of the Federal Rules. The dissenting judges, however, agreed with the textual argument in CAC’s brief, noting that “[w]ithout a clear expression of the desire to displace courts’ inherent power to disclose grand jury materials, the reasonable interpretation of the rule is a permissive one” that allows exceptions other than those listed.