Grand Jury Secrecy and the Historian’s Right to Know

Grand jury records can supply a store­house of information to the  historian. In the federal system, every criminal prosecution begins with a grand jury investigation and indictment. Thus, any historical inquiry into a significant crim­inal case can benefit from access to the records of the grand jury proceeding. An examination of grand jury tran­scripts may reveal prosecutorial impro­prieties, conflicts in testimony, and statements of witnesses who are later unavailable to testify. The witnesses’ recollections may also appear in a form that is not shaped by the prosecutor’s or defendant’s theory of the case, as they may be during subsequent stages of the criminal proceedings. Grand jury rec­ords may also contain the record of investigations of controversial matters which did not result in indictments and thus were never aired in public criminal proceedings. In all of these ways, grand jury materials may supply invaluable information to the historian.

Traditionally, however, grand jury records have been shrouded in an impenetrable veil of secrecy. As a result, they have been strictly off limits to his­torians. While many states have liberalized grand jury secrecy by statutes, some of which provide that grand jury rec­ords become public after the passage of time, grand jury secrecy has been closely guarded in the federal system.

Grand jury secrecy is a creature of United States common law under which the courts have inherent supervisory power over grand juries and their rec­ords. The principle of federal grand jury secrecy has been codified in Rule 6(e) of the Federal Rules of Criminal Procedure, which was first adopted by the Supreme Court in 1944 and has since been amended and ratified by Congress. This rule requires grand ju­rors, interpreters, stenographers, and government attorneys to safeguard in­ formation obtained in grand jury pro­ceedings. It does not bind witnesses who testify before the grand jury.

The rule also establishes several ex­ceptions to grand jury secrecy, which have been expanded over time. Under the rule, grand jury materials may be disclosed without a court order to gov­ernment attorneys, government person­nel assisting such attorneys, and other federal grand juries. Disclosure may also be made when a court so orders because the records are needed in con­nection with another judicial proceed­ing or when the defendant needs the records to support a motion to quash the indictment based on matters occur­ring before the grand jury. A 1986 amendment to the rule allows disclosure of grand jury materials by court order to state officials when a government attorney shows that the materials may disclose a violation of state criminal law.

Rule 6(e) has generally prevented ac­cess to grand jury materials for histori­cal inquiries. Since grand jury secrecy persists unless it is lifted by a court order, it prevents disclosure of grand jury materials under the Freedom of Information Act (FOIA) under two dif­ferent rationales. First, if an agency has grand jury records in its files, these records are not “agency records” that are subject to the FOIA, but rather they are court records because they are still within the control of the court that supervised the grand jury. Second, Rule 6(e) is incorporated into the FOIA by an exemption that allows agencies to with­ hold records that are specifically ex­empted from disclosure by statute. Since Congress affirmatively ratified Rule 6(e) in 1977, the rule is a “statute” within the meaning of this exemption.

In order to lift the veil of grand jury secrecy, a historian must file a petition with the court that supervised the grand jury, asking for a court order removing grand jury secrecy from the particular records. There are essentially two as­pects to such a petition.

First, the petitioner must argue that the court has the authority to lift grand jury secrecy for reasons that are not spelled out in Rule 6(e). Neither the public’s right to know nor the historical interest in the material is recognized by the rule as legitimate reasons for lifting the veil of grand jury secrecy. However, the official explanation of the rule recognizes that disclosure of grand jury materials is still left to the discretion of the trial judge, and the Supreme Court has echoed this sentiment. In addition, subsequent amendments to Rule 6(e) confirm that it is a codification of the ever-evolving common law as it has been developed by the courts. Thus, Rule 6(e) has been amended several times to keep pace with judicial decisions that have extended, and sometimes even cre­ated, exceptions to the rule of  grand jury secrecy. Moreover, there are many cases in which courts have gone beyond the terms of Rule 6(e) and have ordered disclosure of grand jury materials for reasons that are not specified in the rule.

The second aspect of the petition consists of the petitioner’s showing that grand jury secrecy should be lifted in the particular case. In determining whether to disclose grand jury materi­als, the court is required to balance the public interest in disclosure against the interest in continuing grand jury secre­cy. The cases also make clear that the burden of proof is on the petitioner who must demonstrate a particularized need for the grand jury records.

The Supreme Court has repeatedly identified several reasons for maintain­ing grand jury secrecy, such as prevent­ing the escape of subjects of the grand jury’s inquiry, preventing interference with the grand jury’s investigation and deliberations, preventing subornation of perjury or other tampering with wit­nesses, encouraging free and untram­meled disclosures to future grand ju­ries, and protecting exonerated persons from negative publicity. These grounds for secrecy legitimately seek to protect the operation of the indictment process and the criminal justice system, which could easily be obstructed by mafia characters wreaking havoc with poten­tial witnesses and innocent persons be­ing the subject of unfounded charges. However, once the grand jury and sub­sequent criminal proceedings have been completed, most of these reasons for grand jury secrecy would seem to disap­pear. The only rationale for secrecy that continues to apply to historical grand juries that returned indictments is the concern that disclosure will deter future witnesses from coming forward and co­ operating with grand jury investiga­tions.

Nonetheless, until this year, no court had ever lifted grand jury secrecy for historical purposes. There had previ­ously been only one such request. In 1977, Alger Hiss and William Reuben asked the United States District Court for the Southern District of New York to issue an order permitting the Depart­ment of Justice to process under the FOIA grand jury  materials pertaining to the investigations and prosecutions of Alger Hiss. The petitioners argued that there was no reason for continuing grand jury secrecy and that the undis­puted historical importance of the Hiss case counseled in favor of removing grand jury secrecy. However, the petitioners did not provide any authority for a disclosure order that goes outside the literal terms of Rule 6(e), nor did they make any showing of a particular­ized need for the grand jury materials. Although government did not oppose the request, the court still denied it on the grounds that Rule 6(e) does not provide for disclosure of grand jury materials for historical purposes and that “a contrary ruling would be a mis­chievous precedent for this Court to establish.”

In January of this year, a court for the first time opened grand jury records for historical reasons. Professor Gary May, an associate professor of history at the University of Delaware, sought grand jury records for a study to be published by Oxford University Press of William Remington, a prominent Commerce Department official who was convicted of perjury in 1953. Professor May filed a petition with the United States District Court for the Southern District of New York in which he argued first that there is ample support for a court to lift grand jury secrecy for reasons that are not expressly set forth in Rule 6(e), princi­pally the accuracy and completeness of the historical record of significant events. Professor May also substantiated his legitimate historical inquiry, and he demonstrated a particularized need for the grand jury records. The American Historical Association submitted an affi­davit in support of Professor May’s peti­tion, which stressed the importance of grand jury records to historical research in general and to the Remington case in particular.

The Remington case offered an excel­lent vehicle for making this legal show­ing because what occurred in the grand jury room was the focus of two trials, two appeals, and two petitions for re­view by the Supreme Court. According­ly, it is also the core of any historical investigation of Remington’s convic­tions. In order to understand Professor May’s “need” for the grand jury materi­als, it is helpful to provide some back­ ground about the Remington case.

In 1948, Elizabeth Bentley, a former Soviet agent turned FBI informer, pub­licly accused William Remington of be­ing a Communist and giving her secret government information. Bentley’s charges initially received a great deal of attention in the press. Later, however, her story was discredited when Reming­ton was exonerated by a loyalty review board and the network and sponsor of Meet the Press, whom Remington had sued for libel, paid Remington approxi­mately $10,000 to drop the case. More­over, although Bentley had repeated her accusations before two grand juries, neither had indicted Remington. But, in June 1950, a third grand jury indicted Remington for perjury for saying that he had never been a member of the Communist Party.

This grand jury, which was the sub­ject of Professor May’s petition, was tainted in several respects. The most serious grand jury impropriety lay in the relationship between the foreman of the grand jury and Elizabeth Bentley. While he was the foreman of the grand jury, the late John Brunini had ar­ranged a publisher for Bentley’s book about her life as a Communist spy and had collaborated with Bentley in preparing and editing the book. It was only after these arrangements were made that Brunini directed the grand jury’s inquiry to Remington. Remington’s lawyers argued that Brunini and Bentley engineered the indictment of Remington so that Bentley would no longer be discredited and her book would sell. Although Bentley denied these charges and the government insisted that no grand jury improprieties had occurred, several jurists agreed with Remington and his lawyers that grand jury impro­prieties had tainted the proceedings.

There were also allegations of grand jury abuse in the way the grand jury interrogated William Remington’s ex­-wife, Ann Remington. During her ap­pearance, Ann Remington initially sup­ported her ex-husband’s version of the events. However, after several hours of extensive cross-examination, she re­versed her story. In his dissent in the second appeal, Appeals Judge Learned Hand quoted at length from Ann Rem­ington’s grand jury testimony and con­cluded that Brunini and the govern­ment prosecutor misstated the law on marital privilege, engaged in “improper coercion,” and employed tactics that “went beyond what I deem permissible.” After his conviction, Remington was murdered in prison by two inmates who detested “Communists.”

Despite the unusual and compelling circumstances presented by the Rem­ington story, the government opposed Professor May’s petition. The govern­ment asserted that there is no authority for the court to release grand jury mate­rials for historical purposes and that cases in which courts have released grand jury records could not support disclosure of historical materials be­cause the public interest in those cases was of a more immediate nature. Judge Whitman Knapp, who heard the case, dismissed this argument by stating “that indicates to me you have a very limited admiration for history.” While Judge Knapp recognized that the general pub­lic might not be particularly  interested in historical events, he felt that “the scholarly section of the public would be and the theory is through them we all learn.”

On January 20, 1987, Judge Knapp granted Professor May’s petition and ordered release of the Remington grand jury transcript. In light of  the alleged grand jury abuse and the undisputed historical significance of the Rem­ington episode, he found “a consider­able public interest in disclosure and no interest in secrecy,” and he concluded that “the public has a strong interest in having its understanding of the admin­istration of justice in this case based on complete and accurate historical evi­dence.” Judge Knapp did not believe that disclosure would deter individuals from coming forward before future grand juries because in this case over thirty-five years had passed and the principals involved in the grand jury proceedings had since died, with the exception of Ann Remington, who had discussed the proceedings with Profes­ sor May. Although the government ini­tially appealed Judge Knapp’s decision, it has since withdrawn the appeal and agreed to process the grand jury rec­ords under the FOIA.

Professor May’s success should pave the way for similar triumphs by other historians. Judge Knapp’s decision opens the door to future such requests. Since the law relies on precedent to such a large degree, a case on the books ordering the release of grand jury mate­ rials for historical purposes is bound to lessen the burden on future requesters, especially in arguing that Rule 6(e) per­mits such disclosure.

Even with this Rule 6(e) stricture removed, there is no right of access to grand jury records—only the opportu­nity to persuade a judge that disclosure is warranted under the circumstances. In order to seek access, the historian must file a petition with the supervisory court, arguing that the public interest in disclosure outweighs the interest in con­tinuing secrecy. The most important aspect of the petition will most likely be the showing that the petitioner has a particularized need for the grand jury records. The Hiss petition failed in large part because it did not make a showing of particularized need. In con­trast, Professor May made such a show­ing in part because of the central role of the grand jury proceedings in the Rem­ington story. While the allegations of grand jury abuse certainly strengthened Professor May’s petition, this type of showing is not essential; a historian can demonstrate a particularized need for the records for other reasons as well.

In order to prevail the petitioner must appeal to the judge’s discretion, and thus the outcome depends on the overall persuasiveness of the historical need for the records and the strength of any competing interests. Judge Knapp took into consideration the passage of time, the death of most of the principals involved in the grand jury proceedings, the interests of the still-living principals, prior disclosures of some of what hap­pened in the grand jury proceedings, and the historical significance of the case and the McCarthy period general­ly. All of these factors counseled in favor of disclosure of the Remington transcript and thus Professor May’s vic­tory, including the serious consideration given to the value of historical accuracy and completeness by Judge Knapp, should be encouraging to others in the historical community to make similar efforts to remove the secrecy barrier to access to grand jury records.