well i think this this varies on the question of whether these are judicial records or not and i think the answer is yes they are and so although they're sort of in the physical custody of the archives so long as they are court records then yes the court can absolutely serve direct that they be sort of given physically back to the court so i think on that basis there's article three standing here i think to say that there's not article three standing for this type of request would woodworker a fairly significant secrecy are precisely enumerated list of people and the district court is not on that list and therefore all sixty strictures do not bind the district court itself in the first place second the advisory committee on criminal rules which considered judgment and third every court have considered the issue which includes three courts of appeals as well as district courts and two other circuits has concluded that course do you have inherent authority to make certain disclosures of granger records that are not specifically not a court that actually sort of considered these particular issues i don't think these arguments were clearly raised and addressed in that decision and so i don't think it is i don't think it counts as a as a court that has squarely consider so i don't think i don't think it's great we did just based on the nature of the arguments that were made i understand the point the other thing is that i and rereading if you go it's not clear to me that what was being requested was the actual underlying re the grand jury as opposed to court records of ancillary proceedings to the grand jury i think she was trying to get access to records relating to a contempt proceeding perhaps and then and then if he was really there then the rule six would have been doing the work well i mean will six does does address records in ancillary proceedings i see rule sixty five and sixty six are sort of geared toward that and i think that conceivably can this notion that there's a distinction between the court and an attorney for the government because an attorney for the government to somebody outside the court and then there's the court itself that's right and i guess i wasn't sure about that because it seemed like what's going to happen a lot of times here is when a party comes before the court so and at that point it seems like there's not a talismanic distinction between the court itself and the governor the third government attorney who by assumption of the one is holding on to the documents they're the same thing it's not to say you know sincerely can't get home it's just going on here at the end of the day which is that on your textual argument i was wondering about that because it seems like the rule assumes and some of the cases assume that there's no distinction between the attorney for the government who's holding the documents for the court and the court what i do think in practice that that is the way it plays out in many cases because by default and especially when it's especially the grand jury either is still ongoing work or has recently been ongoing you know especially when you're i think that is true as a practical matter and it is true that that therefore the rule acts as a constraint on what the government itself does but it there are instances where where the records are or at least some sorts of records are in the possession of the court itself i think in that situation the text of the rule does not address that situation and when what's the practical situation comes up when it's done when when i predictably assume that that in these sort of unusual circumstances that we've got with these types of requests that we are we are not proposing some kind of evasion of the rule that will if this raid it and make it meaningless  court's override then the exceptions like the exceptions in the re which are the ones that were mainly focused on those seem like they do operate against the court they don't just operate against those people who are outside the court they operate against the court and then the question becomes ok to the then there's exemptions are those exceptions the only exceptions or can you still get around the with especially your previous question it it is the practical case that the government will well tend to have the records and so that the text the role was applied correctly but i don't i don't want to suggest that there's no legal difference between the court and say to the government you know sort of i'd like the record please and wi fi cases in our reply brief of instances where courts have said to the government you know i'd like to look at the grand jury records please you can instances where just records have done that so it's fanti because they practically that sort of that sort of thing really happens if ever and it's really only in a more in a situation like this where years after the facts the court might retake possession of the records for various reasons and then can  re certainly are not in to anything goes land which i think this is the way our going to has been for trading is not correct we absolutely do not think the left so let's just press on right the background will is seekers that's correct and circumvention point the more novel an out of left field the furious the more likely it is to produce disclosure because you say well it's not close to the sections under the rule i just a completely different subject if i think in circumstances where the nature of the disclosure is something that that the rules shows no sign of having considered and i think that's a situation in which it would be  this i think what it means is that if you're not if you're seeking a type of disclosure that the rules committee and supreme court would have not been addressed and it's not sort of within that the nature of the concern of the rule then then it is left to the district court and the district court makes the decision whether to allow that disclosure starting from a strong presumption of non disclosure we don't we don't dispute that that's absolutely right and so it's it would only then be in a addressed for quite a while now going back to the seventy's and eighty's and what's the first case to recognize a story so here is rationale disclosure one that i think the earliest cases nine hundred eighty seven r so if we were assessing things by reference to background traditions wish and she just woods theory or character or were incorporated into the rule of we're back in nineteen forty significance in this way i think through for the points made about that one i think that that might to some extent be a factor just of the degree to which grand jury proceedings were fully recorded long before the rules it's not it's not clear they were but even putting that aside i don't think that there needs to have been a clear longstanding practice of disclosures of precisely this sort in order to say that this is a permissible exercise of a court's power and for that i would just point to the supreme court's decision in d c bolden about r d t bolden it's twenty sixteen decision about that the ability to recall discharge juries and one of the arguments that was made there that there's no long standing history of recalling just charged juries in fact the opposite in the court said nonetheless things have changed and this this that sort of fact about the history of jury practice did not for background so i don't i don't think it's that strange from the background tradition i think it is consistent with a long history of course of disclosing unsealing court records admittedly you know in a non grand jury context but for the purpose of just informing the public about what has transpired in judicial proceedings and furthering greater public knowledge and not not connected to the adjudication of particular cases greater public information is your judicial record siri that's right and so i think i just will writers use yes legal short hand or the category of documents that would be reports though those are another category of records that are presumptively confidential and not just available and there there is a sort of a high compelling need standard to get access for a third for third parties to get access to presents report a different he doesn't have the actual analysis that you have not in detail but i'm not sure that it actually is practically it sort of different framework or would lead to any different result i think i think fundamentally the distinction that that decision draws is is the one that we draw which is that the the degree of construe that the named in of types of persons in sixty two or under a type of be circumstances of historical significance but we have cases like for example seal case where there's language that indicates that insofar as disclosures can be allowed in the grand jury context those disclosure should fit within one of the  if that's true then once you get the rule governing disclosure of where the court itself has the documents becomes more difficult for you than it would be across in the universe we're on across and doesn't matter if it's closures on the the court itself how the documents are governed by the rule because carls two then then maybe you could i just don't think there's any way as a matter of tax to get to the place that that the court itself is covered it is just me it clearly is not expressly and clearly could be expressed as we say there there are many rules including rules all citizens of the courts on the cover and i'm not sure it does that i can see that that is not perfectly clear on this point but because what was doing the driving working carlson was that the exceptions circumstances in which a court can disclose it doesn't tell you all the circumstances in which the court can disclose you can find other exceptions too and one of them could be for purposes of historical significance now you don't need to win under that rationale it just it seems to me is a different yell than the one  the exceptions are there's no exceptions outside and since you've got to find your way home with him bill says then there's more of an obstacle for you and i think i agree with the premises and and a don't think that there may be some slight difference there in explanation but i i don't think it makes a difference in outcome here and i don't see that it makes that out a difference in outcome in almost any situation i can imagine  open pandora's box because many other courts have opened this box and there were no calamities inside again it's this has been the rule in a number of other circuits for many years and the number of cases that even ask for such disclosure are rare as the government acknowledges it acknowledged in its twenty eleven letter to the rules committee where it's granted is rare and the government has never suggested that in any case from any of these other circuits where these requests have been made and granted that there has ever been an abuse of discretion or that there is and ever been any sort of practical problem resulting from any of these disclosures and further that that that disclosures for historical interest like this have not sort of lead to other types of inroads into the into grand jury secrecy so i just i really think there's a clear historical track record that shows there's not a slippery slope here and that we that you don't have to worry about subverting grand jury secrecy generally and then just already reasonably exercising their inherent authority i'm way over my time so i will say i will sit down for now thank you thank you thank you records i mean it's fair to say that the archives holds the records on behalf of the department the department still has access to those records and herman retain control so the order against  i would have to speak york especially the answer would be no i mean they are they're certainly aware of these cases and have been involved in them but turning to the text the rule your honor the rule sixty three exceptions lay out the only circumstances in which  authorize disclosure of grand jury materials and that's clear both from the text of the rule the structure of the rule and this court's decisions in the supreme court's decisions addressing those exactly does the money government of the hall and your honor that's  certainly the case that the government argued both that the proceeding at issue there fell within one of the rule sixty exceptions and that and took a different you had an alternative argument as well but that case your seed and you put the order seven it was clear that just records do not have an you're an authority to disclose grand jury records and circumstances not covered by the rule but if there's any doubt on that question has been removed since the time of that decision in any event halderman is ok and mandamus petition that  to course treatment of those questions from the just request creature treatment of those questions is itself alternative that it offers both the argument that the materials requested fall within an exception to the rule and a broader argument about inherent authority so again there's nothing to be drawn from halderman itself and again even if you thought there was something in there that was that maybe this court thought at that time there might be something to that argument there shouldn't be any doubt at this which fits entirely with the text of the rule because the exceptions themselves or directly to the court the word may exist to emphasize the discretion just record has when it considers a request that falls within the text of the rule so it under you and your view of interest is one that it's the just records place to make or this one is so easy to draw it's entirely possible to imagine a robust policy debate about at what point grand jury secrecy should expire for what purpose that at least some people may have taken that view there were also concerns expressed about the substance of the department's proposal there was also a view that perhaps this wasn't a significant issue because it was a arising infrequently but i would point out your honor just in the last in the time this case ha been pending three additional petitions have been brought in the district court seeking disclosure under inherent power authority and for the theory and an additional way of at least one other petition that is pending asserting the same thing that was filed before this appeal so we're starting to see these petitions with increasing frequency and the reality is that if the wall itself governs here what the advisory committee thought or didn't thought or didn't think isn't relevant to what the rule itself says but just in a just understand what you think come out correctly in terms of both the decision to disclose which is a separate question and whether or not there was an error in first place certainly some members of the committee apparently believe that but your honor invite your committee that consider that proposal is only the first step in a long process for a rule to be enacted which at its conclusion includes the supreme court and congress and all of the indications we have from those bodies are that they view these exceptions as exclusive and so i would point out as well the both a majority in the dissenting chorus and declined to place secrecy expires and these records can become public but that doesn't change the fact that a district court hasn't been given the authority to make those decisions and those judgments in the first instance because if you know all you well that you are but also the point is that the decision about under what circumstances and when and the conditions that should be placed on that disclosure are judgments for congress or the supreme court to make not just records on an ad hoc basis and you can imagine discussions about the value of these materials which materials are sufficiently historic or not and also whether you know for example in a historically significant case it might have an effect on the candidness of grand jury witnesses if they knew that their testimony might suddenly be disclose believe become public after seventy five years now whether the same proposal you put forward today or considered today i can't say but that's the kind of will you might imagine the advisory committee considering or in acting if it just that the supreme court has clearly understood these exceptions to be exclusive and this begins you look at pittsburgh plate glass which says any disclosure of grand jury records must occur with it you know is governed by rules six he added an associates repeat similar language bagot talks about how the exceptions reflect congress's judgment that not every beneficial purpose or even every valid governmental purpose justifies disclosure it just though seems like in all those cases they came up with contact in a context in which it's clear that the rule had language that pertained to the matter at hand and so there is the question everybody came up what about the disclosure and it isn't coming up within the confines of the  it's coming from somewhere else but your honor because i think it's important to recognize that this flows from the tradition of grand jury secrecy to supreme court cases have always emphasized that they don't want a clear statement from congress and that you should interpret these exceptions more or less narrowly to ensure that grand jury secrecy is preserved again abbot and associates makes this point cells engineering makes this point that there is an expectation of these materials will remain secret and that it should only be lifted that only be lifted in limited ways when a party demonstrates a particularized need and that those cases you're right have always been litigated within the confines of the rule precisely because of that background principle and there's nothing in the text of will succeed  very specific just records if you want to the point is that the district court is not privy to grand jury matters when it  petition is filed or some ancillary proceeding occurs and so the reason the world doesn't list the district court in rule sixty two is precisely because it is not doesn't have access to these materials isn't aware of these secrets until some ancillary proceeding occurs and when that occurs separate provisions of the rule govern the district courts just position of those materials so your honor that's rule sixty five and sixty six specifically cover those situations so there's nothing to be drawn from that fact other than that the district was well here is to be purely reactive it's not an independent player in the system the grand jury's independence ensures that that's the case and for similar reasons your honor part of the reason it doesn't make sense to think about these in terms of different players can have it that grand jurors themselves were private citizens obviously know about matters occurring before the grand jury the prosecutor other individuals in the prosecutor's able to share that information with and then in the context of one of these proceedings the district court itself so the reason why it doesn't make sense to talk about these in terms of additional records of the executive branch records is precisely because the rules designed to cover the information were garbus of where itself you can measure cell and he has a question about so one part of cells engineering the court analyzes the way the advisory committee dealt with a rule and it quotes the advisory committee knows and characterize  proposal no your honor because that addresses the advisory committees notes if i'm recalling correctly on actually enacted rule and in those circumstances the supreme court has recognized yes those notes deserve considerable weight but where you have literally minutes of a discussion that occurred in the course of the climbing to task or proposal there's nothing additional to be drawn from cells engineering on that point if anything the advisory committee notes that we do have addressing grand jury secrecy emphasize the norm of non disclosure rule sixty one for example when it was an action one hundred seventy nine advisory committee specifically said that the rule did not change the circumstances in which disclosure of grand jury records was in particular if we look through the on bank course that he didn't haul them into jersey because analysis in the district or the well i understood you to be saying there are alternate rationales there one of them is just recorded here at the ready and another one one of one of them is that the rule itself cover actions and someone proceedings but not for the purpose for which it sought here and so it's i think we just rick is opinion i acknowledge is difficult to parse but it's certainly not the case that there is a clear rationale that because what you are i believe in response to a question in oral argument the government did say and judge mckiernan hears separative and you can hold them and emphasized that he took into account the fact that the government had represented that this proceeding fell within the rule about i know we're down in the east here but we we have to look into the weeds in order for us to understand what i'm working on bank or disposition on and is doing on that the way judge sirica described it he did he does say  is discussing cases involved in which a disclosure has been ordered in connection with what whatever other court was ordering the disclosure found to be a judicial proceeding whether or not the record would have reached the same result in the first instance somewhat separate question from whether or not and now it is that which i finally found the judge in biagi is a somewhat unusual case because there you have again you have a both the government and a witness before the grand jury essentially waiving the protections of rule six e and this court has in somewhat analogous circumstances in re north of the judith miller cases recognize that where there are where other information has already become  decided i'm just saying that there's a rationale and biagi that is different again from what you see here which is the assertion that no matter what purpose the individual is seeking these records for the just record is permitted to entertain that petition and potentially exercise his discretion to disclose those records so again even if you think there are sort of these extremely narrow situations in which some inherent authority might exist which again we don't believe there are but even if you thought that was being sought here is something fundamentally definite got to really think that it has because once the things that there's even if the narrow sliver if there's a narrow sliver outside the rule and the rules are not doing the work and then just records have authority to go outside the rule in the you may have some very good arguments about how that non rule authority for disclosure has to be very nearly happened given the presumption of injury secrecy and all sorts of considerations that would require force to be very very careful  this case the question should be whether inherent power extends to making these kinds of judgments and there's nothing in your store of a practice there's nothing in the nature of inherent power itself which exists to protect judicial proceedings the proceeding process of the trial or to prevent parties from taking advantage of being able to violate rules outside of the context of the courtroom or the trial itself and so those kinds of authorities are exactly what we see generally invoke is inherent power a policy judgment about what kinds of social purposes justify disclosure of the beneficial purposes that baggage talks about are simply outside of that kind of power and what interest wi here your honor the interest that we have is in ensuring that the proper bodies are able to make these decisions this is simply not a judgment the courts are empowered to make this is a judgment right so i understand that and i don't mean to minimize it all but i  do understand the argument that we ought to have been institutions with and properly defined roles and that just gets back to one of the rumors because he obviously you don't take a position that there's some kind of next problem with allowing just recourse to monitor disclosure this area because that's exactly what the department has a lot of so i understand the interest in making sure that the rules that bodies operate within the constraints of rules that are duly policy that make sense to me i'm just wondering if could put that one to one side or say what's the interest that would be served by not allowing disclosure here just these of you who we typically talk about with your secrecy why well your honor as i pointed out earlier it's entirely possible that you could have individuals who you know if they know that their grand jury testimony may be disclosed at some later time may or may not be as candid as they would have been in the cities in the you know your honor in this case the fact that there might be a disclosure interest illustrates why that's not a decision a district court should you making on an ad hoc basis in the first place the fact that we're having this discussion emphasizes that it's a policy judgment that ought to be made either through the rule making process with the supreme court or by congress itself just that judgment multiple times in the past if it can be disclosed for these other reasons wouldn't it sort of be crazy to think can't be disclosed for this purpose i think that is an indication of just surekha noting that it is not authorized the use of using was not authorized by the world and it was a sort of you know we put forth here that there is a distinction between this disclosures that are being made by the people specifically enumerated in sixty two and again to sort of tie that back into halderman again this is this textual argument is kooky out of left field are going i think it is the plain text and it does help make some sense of how all of these decisions fit together and just quickly on the i g that just frankly is very clear that he is not within the text of  rule sixty and the fact that i don't think can be explained away as a as a waiver case because that that is not within sixty and the whole point for disclosure there was that the that judge finally felt combination of the patent policy are just dozens i think i think are the exceptional it just has to be that the nature of the underlying case whose records you're trying to get has to be exceptional if you're trying to get access to the granger records of a mugging that occurred right and i don't i think the government has has basically conceded that there is no sort of case specific reason not to disclose these records and we think that's right so we would request that this court affirmed that the district court has this type of authority and