exceptions that reflect policy judgments about what purposes justify lifting that secrecy i just record lacks authority to circumvent the rule by invoking its inherent authority to order disclosure so many based on academic interest about what occurred before the grand jury that's not what we've said in the eleventh circuit before is that you know hastings in a nice and berger we said that the court does have the inherent authority to disclose it to a grand jury proceeding information in exceptional circumstances that is so high up how do we say that the district court here abused its discretion when it relied on binding eleventh circuit authority your honor two points about that first this court did say that in hastings your honor in azan berg what this court said is it noted the government's argument that the supreme intervening supreme court precedent bank of nova scotia and carlisle rendering the holding of hastings no longer a good law but declined to decide that question because it didn't need to to resolve the case in front of it so i wanted to focus the court on those opinions bank of nova scotia and carlisle both say that it just a court cannot use its inherent authority to circumvent or could make decisions that rules of criminal procedure of which rule sixty is a part and there's nothing in the reasoning of those opinions that there's no way to square the reasoning of hastings with the reasoning of bank of nova scotia and carlisle and in fact i haven't seen an attempt in this case t the point is simply that at the time hastings was decided bank of nova scotia and carlyle had not yet been decided by the supreme court and this court in hastings made a decision that has subsequently been you know is not reconcilable with those cases because your honor rule sixty itself is exclusive it says in rule sixty two unless these rules provide otherwise there should be no disclosure of grand jury information and then i exceed three can i ask your question before you dive into the rest of your argument  initial would i want to make sure i get this right you are affirmatively deciding not to challenge the district court's exercise of discretion if it had the authority to go outside of rule six your position is the district court had no authority whatsoever to depart from the language of rule six and therefore it  but if we disagree with you on that point you have not made an argument that exercising discretion was also error you are i'm want to answer that in two parts of the the bottom line answer is yes the district court's i guess i just question if the c apply we are not contesting the application of those factors in this case now i've would like to come back judge will sometimes he was pressing me about the hastings decision we have said that even if hastings is still good law even if you believe bas extol binds this court the exercise that the district court still lacked inherent power to make a disclosure solely on the basis of historical interest hastings does itself doesn't give the district court that authority because hastings is very narrowly reasoned and addresses only very limited circumstances but if we look at some of the other circuits they have district judges have parents already disclose grand jury proceedings for historical purposes the second a divided decision directly ruled on this question and we obviously recognize that but the bottom line is the reasoning of those cases still cannot be squared with carl and bank of nova scotia which and cannot be square with the actual text of the rule unless these rules provide otherwise says will sixty two there will be no disclosure grand jury materials and will sixty three addresses the circumstances in which for the most part these rules provide otherwise specific exceptions that are just so specific situations in which a district court may authorize the disclosure of grand jury materials how do you square that argument notwithstanding carlyle and bank of nova scotia with the courts use of supervisory power in earlier cases cases which have not been overruled your honor i'm not sure if you're referring to cases that predate rule six no i'm not talking about the grand jury context i'm talking about scenarios where the court has chosen to do things in the exercise of its supervisory power over the federal courts that are not dictated by the language of any rule or statute we're going to meet we don't deny that there is inherent authority that district courts possess and this gets to the points about the nature of inherent authority in this case and why we think even if these things is still binding on this panel which again we don't believe it is but even if it by fraud to regulate admission to the bar those types of judgments which are about protecting the court's ability to function are what inherent power exists for this is a judgment about what social purposes what beneficial purpose to use the language from bagot justified disclosure of grand jury materials and that is a policy judgment that has been made repeatedly by congress so if the alligator if the allegation is that the your pitch your trip was trying to uncover or develop a theory on war that that grand jury proceeding had been a sham from the beginning where would your argument go that still wouldn't cover it's still not covered by any of the exceptions you're gonna know who the inherent power issues are you just mentioned about protecting additional process your honor the specific situations in which just records exercised inherent power to disclose grand jury records prior to the rule addressed a judicial proceeding actually occurring before the court so a situation where for example a defendant in a criminal case said i believe there was misconduct before the grand jury that led to mind eichmann a district court had discretion to order disclosure of grand jury information in order to determine whether in  when it's at ridglea enacted codifies precisely those situations it contained an exception for use of grand jury materials in traditional proceedings and for a procedure for defendants to petition for grand jury matters when they believed misconduct led to their indictment i know but we're moving to your second argument which is your alternative fallback argument which is accepting grudgingly that hastings still binds the panel and that there is a pocket of inherent authority under which district courts can act there was no pending proceeding in hastings correct or so why what makes hastings different from this case your honor it was an after the fact thing that's correct your honor but hastings the court in hastings rested its reasoning on three principles the first was at the root the could be disclosure requested was closely analogous to an existing exception there were the second was that there were specific indications in statutory text and legislative history that congress intended for disclosure to occur in those circumstances and the third was that it directly affected the functioning and independence and credibility of the judiciary because you had a  proceeding judicial misconduct proceeding following the indictment of the sitting federal judge on bribery charges so i go back to my question if if if the claim here was and the district court verified it by its review of the district of the grand jury materials that the grand jurors had been bribed in this case to return a no true bill does hastings allow the exercise of discretion your honor i still think in that circumstance you have to explain how that was consistent with carlyle and bank of nova scotia never know what do you see we're moving to your second alternative argument i've moved past the first your honor i think in that circumstance the answer is maybe but again that's fundamentally different from the kind of judgment that's taking place here member i know we have to write an opinion in this case and we have to also figure out what's going to guide district courts in this court in the future and so those difficult questions at the margin are important to figure out as well they are but they're not presented here this is not a defense but that's you know that's a hole that's no help well your honor the point is that the guiding principle for the exercise of inherent power has always been the protection of indication as usual in closed civil rights cold cases but they have not been enacted perhaps they will be there can be changes that take place to the rule making process or through congressional action that would provide for disclosures records and our point is simply that those judgments should be made by the policymaking bodies not by district courts on an ad hoc basis making judgments about what sufficiently historic or sufficiently long ago and of course a policy that supports  jury information yesterday and so i mean it's been so long you know there are objections not to these particular records but the problem is that the judgments about how long is long who might be called to testify in a case that's their own notoriety on the seats now i'm talking about a and a current individual who gets called to testify in a case that everybody knows is going to be of great historical interest and if they know their testimony will be disclosed it may affect their conduct but the fact is that's a factor that the district court would take into consideration is my discretion not to disclose grand jury materials because i want to protect and that why we have district judges that's also why congress has specific and the supreme court to reach will making capacity has specifically enumerated the circumstances in which disclosure is permissible to make those judgments those judgments are not judgments to be made in the course of a hoc inherent power consideration it's a question about what purpose is justified disclosure whether it's all historical records or only some of them how long it's been too long you know for example the rule as it currently stands permits disclosures to state officials for the purpose of enforcing criminal law but not civil law and that reflects a judgment by congress and by the supreme court is really making capacity that criminal purposes justify the lifting of grand jury secrecy but civil purposes don't and those kinds of policy judgments are not something that a district court does through its inherent power why aren't the drink grand jury transcripts part of the record in this case talking about disclosure good morning may it please the court learned counsel joseph j bell from the great state of new jersey of the law firm of balance of us on behalf of the petitioner anthony pitch with the court's indulgence i'd like to recognize and tonya lin that hayes the granddaughter of the late roger malcolm the victim in this tragedy along with cassandra green of the morris ford committee my client respect fully request that this court should affirm the united states district court's opinion and order the release of the moore's ford grand jury transcripts the appellee petition and has demonstrated the exceptional circumstances the historical significance consonant with the policy and spirit of rule sixty and the holdings and sister circuits of the second and said and most importantly here in the eleventh circuit in the hastings answered your question in the eyes of one person a given proceeding might be exceptional and extraordinary and groundbreaking and of historical significance to another person they might not how are we supposed to write an opinion that provides guidance on that point obviously to mr pitch and to the family members this cases of incredible importance all but another case in another jurisdiction might well be as important and as historical for other individuals it maybe so why wouldn't this potentially open the door to anyone who is interested in a prior grand jury proceeding to request disclosure i believe in this particular case the historical stipulated by the united states district attorney in the middle district mr peterman it's a cold case for african americans were shot at considerable range  tortured found in gagged the victim's george w dorsey a five year veteran coming back from the pacific and african front returning victor victim his wife may whom the coroner's notes indicated suffered a death by violence rodger malcolm tied and bound shot in the face with a shotgun received that last to his face his wife sustained ghastly  and was also assassinated all victims were shot multiple times with both pistols and shotguns had cracked skulls shattered limbs gaping wounds and shredded flesh the gran g b i records reveal they were shot over sixty times and i'm sure your honor if there are other cases that are analogous to that case a bar this court like any other circuit would weigh certain facts and circumstances as judge treadwell did a law no no i'm certainly not disputing the circumstances of this horrific event but to other individuals for example other journalists other than your client another grand jury proceeding in another place involving some event that was of historical significance there might also in that journalist's mind warrant disclosure what line are we supposed to draw the supervisory inherent authority of district court judges to weigh it on a case by case basis so no standard at all will this theory that is the historical exception or exceptional circumstances using the craig factors as the court did in the second circuit if that's the case and what the reason for the exceptions the reasons for the exceptions that the lawyers outgrown its primitive stage of formalism where the precise rule is the sovereign talisman and every exception thereof is fatal to this court has been on the cutting edge it's been on the cutting edge with with hastings it's been on the cutting age in the district court with the with judge treadwell's decision but here you have in this particular analogous situation you had twenty seven hundred ninety people interviewed one hundred six people testified before a grand jury and no one no one to this date has been brought to justice it was also i mean i understand the reason for the rule and there's a policy argument behind it because we want to encourage witnesses who are called to testify before a grand jury and want to encourage them to testify they ought to be able to know that testimony is going to be kept secret and encourages truthful testimony but this is seventy two years after the date your honor but i'm i feel like i might be called a testify before a grand jury tomorrow and i might want my testimony to remain secret for the next one hundred years and it probably will be but we're saying that this case and using the factors and employed by the craig court outweigh any secrecy interest that the government may have it's the passage of time is defo it's also the fact that the grand jury is not a free floating institution that i might i might want my grand jury testimony to remain a secret long after of the part of this earth particularly in a case as horrific as this i'm wondering why that doesn't increase our concern for the secrecy of these proceedings because there are no witnesses that are alive  was not only did this happen in one nine hundred forty six what about family members of the witnesses or the grand jurors a part of those are still alive aren't they don't they have an interest in the reputation of their families and does the reputation of their families outweigh why we don't have and the answer to the question of why does that's not going to happen is it because there is not going to be any prosecution and there's not going to be any prosecution they've deemed today cold or a close case so so the purpose then is to try to malign someone dollars not to malign somebody is to try to find that we're figure out why this horrific event occurred there's a historical event it also had if you let's flip let's and again no one is questioning the hook the horrible circumstances that led to this grand jury investigation or to minimize the effect on relatives or surviving family members but would your position be the same if an indictment had been returned against one person in that case you know i believe in that particular case they thought we're just going to indict the person we think is the ringleader and that person was indicted prosecuted convicted and now mr pitch wants to know why other people were not indicted given that it had to involve more than one person would you still get disclosure i think if one person had been indicted for that or a series of persons had been indicted one person on my hypotheticals one person one person being indicted i would would have been a possibility no that's not a possibility as a hypothetical question so the same way that i asked mr difficult questions about line drawing i'm trying to ask you from a different perspective and i'm trying to figure out what is it that makes a difference is it the fact that none of the witnesses are still alive  is it the fact that no one was charged that's also correct so if someone was charged that makes a difference i think we would have that would have ended the inquiry and the process of why we're here today i think that this court has that inherent supervisory authority if the grand jury charge somebody and that person was acquitted because that person was seen as a low level person who was in the wrong place at the wrong time and not criminally culpable so there was an indictment but there were acquittals would you get disclosure i guess it would depend upon the factors of why we were seeking the release of the records same question for the historical exception yeah same same thing he want to foster put in mr pitch wants to know what happened in that grand jury room what the grand jurors learned that led them to charge only one person who ended up being acquitted same  issue just a twist to the fact is you would you think you get disclosure i'm not sure i know though that in this particular case and i can only go by this particular case and the decisions most recently in the carlson case out of the seventh circuit were noted historian asked for release of records from seventy two years ago regarding the japanese a breaking of the code of the japanese naval code and the rich in the records were released to that person only because they felt that the passage of time was so great that the there was that the passage of time created that historical exception and that the the interest of you balance the interest would secrecy in the release of the documents the balance favored the release of the grand jury testimony but there was a six pretty strong dissent in that case extol that was only in dissent the majority i know but we're talking about what the seventh circuit did and that view of the panel was not unanimous no dissenting the dissenting judge thought that more weight should have been placed on the limits created by rule sixty but i think that know when hastings came out some people thought that was a good decision back then because it allowed judges to figure out what they thought was for the the public good and bypassed the strictures that were placed on place by rule six see i don't think there's been abused by any of the judiciary in connection with the release of records no on another and i'm not i'm not using the word abuse i'm just saying that there were some who did not think that hastings who was correctly decided because it allowed judges to substitute their views of what was in the public interest for language that was in the grand jury rule but didn't the pittsburgh plate glass case of the united states supreme court indicate that disclosure of sealed grand jury materials is committed to the inherent supervisory decision in that particular case and also the committee notes in rule six he indicated as well the advisory committee notes that grand jury records are not strictly conferred to instances specifically spelled out in the rule and along with rule fifty seven of the rules as well that the the court can address issues that are not absolutely contained or forbidden in the r the transcript would be considerable to the public perception to as well again against the war the transcripts were considerable to the public's perception and record for the source of information as to what transpired in the moore well let me tell you where my mind is right now going to if we were deciding this case on a clean slate without hastings i might agree with the court's i mean you're bound by those six hastings based on carlson and we didn't do it here i'd like to start there are two or three points about that first in this court concluded that it didn't need to reach that question and it obviously it's a it's an ask to have this court conclude that it's prior precedent has been overruled and the isenberg court quite sensibly said we don't need to decide that question we're going to know the arguments been made but it doesn't matter for these purposes so  authority that europe has to be clearly on the end it's not clearly on point because it and concern a district courts exercise its inherent authority to disclose grand jury proceedings that those cases do not as i pointed out carlyle specifically says you can't circumvent or conflict with the federal rules of criminal procedure of which this is a part and we know from witnesses vs way ems that it just records authority over the grand jury is even less so hastings in my mind that's fair enough your honor so then there are three ways that this court would have to go beyond the reasoning of hastings to affirm the district court here the first is that you would have to explain how the exercise of inherent power in  consistent with carlisle and bank of nova scotia which this court has never done second you would have you don't claim don't we don't have to do that but if you are if we're bound by prior precedent we are again because the second point you would have to explain why the reasoning of hastings which is quite narrow and limited to circumstances closely analogous to an existing exception and based on a direct congressional indications in congressional text and legislative history disclosure is appropriate even though those factors are absent here but you have been challenge the exercise of discretion in this case your i thought that's the i thought that's the question we started off with no your honor because this is an error of law to conclude that there is inherent power to make a disclosure arise purpose correct so you're not you're not again let's go back to the first question you're not challenging the district court of balancing of factors within the historical exception right correct your honor if there is a historical exception but hastings doesn't establish a if your question is how did it abused its discretion it committed an error of law here and an error of law is always an abuse of discretion as this court has made clear many times and so your honor the third way in which you have to go beyond hastings to affirm the district court here would have to conclude that inherent power reaches this type of judgment a policy judgment about what circumstances justify disclosure of grand jury materials it's not clear all of his things didn't it did whatever you think of it it involved a policy judgment at the end of the day whether or not disclosure was warranted in terms to form but a policy judgment entirely consistent with other exercises of inherent authority because inherent authority remember exists to protect you vindicate the judicial process and hastings is a case involving an indictment of a sitting federal judge for bribery and if that doesn't implicate those exact types of a case in which the judge was acquitted that's correct  honor and i'm not here to tell you that hastings was correctly decided but the bottom line is that that exercise of inherent power whatever you might think of its relationship to the rule its relationship to carlisle and bank of nova scotia is fundamentally different in from a judgment that certain purposes justified disclosure even though the rule doesn't provide for them so for example there's no reason on you know if i just report exercises this kind of inherent authority is step outside the rules it could always disclose materials for use in a civil proceeding run by a state even though the rule explicitly says only criminal proceedings justify the lifting of grand jury secrecy the point is the supreme court has repeatedly said first actually in pittsburgh plate glass which my colleague mentioned in the book the important line from pittsburgh plate glass your honor is that any disclosure of grand jury minutes is covered by federal rule of civil criminal procedure succeed promulgated by this district court cannot and it reflects policy judgments about what purposes justify disclosure and that sort of judgment should be made by congress or the supreme court its will making capacity there are no further questions