Lepore v. United States

Court: U.S. Court of Appeals for the First Circuit

Date Filed: April 12, 2021

Background: In December 2018, Jill Lepore, a historian and staff writer for The New Yorker, requested access to records from two grand juries convened in Boston to investigate the “Pentagon Papers” leak in 1971, one of the most consequential unauthorized disclosures of government information to the news media in history.

The district court ordered the records disclosed, invoking its inherent authority to do so. It also held that it had the authority to unseal some of the materials that had already been partially disclosed under the rules for grand jury secrecy. The government then appealed to the U.S. Court of Appeals for the First Circuit.

Our Position: The First Circuit should affirm the district court’s order authorizing disclosure of the requested grand jury records.

• Under its supervisory authority, a district court has the power to authorize the disclosure of grand jury records to the public in appropriate, exceptional cases, even in circumstances not expressly provided for by Federal Rule of Criminal Procedure 6(e).
• The district court’s application of the factors identified by the U.S. Court of Appeals for the Second Circuit in Craig v. United States appropriately reconciled the importance of grand jury secrecy with the public interest in disclosure.
• Affirming the district court’s disclosure serves the public interest as the historical significance of the requested materials outweighs continued grand jury secrecy. Disclosure is particularly important given the recent uptick in Espionage Act prosecutions against individuals accused of leaking sensitive government information to the news media since 2009.

Quote: “When district courts exercise their inherent authority to disclose grand jury materials, the press, historians, and scholars use that access to create a more complete, accurate public record of historically significant events.”

Related: In a similar case, Reporters Committee attorneys helped historian Elliot Carlson and a coalition of organizations unseal transcripts of witness testimony from a historic 1942 grand jury investigation of the Chicago Tribune. In its 2016 opinion, the U.S. Court of Appeals for the Seventh Circuit held that district courts have inherent supervisory authority to unseal grand jury materials.

In 2019, the Reporters Committee, joined by a coalition of 30 news media organizations, submitted a friend-of-the-court brief urging the U.S. Court of Appeals for the Eleventh Circuit to affirm a district court’s decision unsealing records from a federal grand jury convened to investigate a mass lynching that took place in rural Georgia in 1946.