United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided June 29, 2007

No. 04-3138

IN RE: GRAND JURY SUBPOENA, JUDITH MILLER

Consolidated with

04-3139, 04-3140

Appeals from the United States District Court

for the District of Columbia

(No. 04mc00407)

(No. 04mc00460)

(No. 04mc00461)

On Renewed Motion to Unseal of Amici Curiae Dow Jones &

Co., Inc and the Associated Press

______

Theodore J. Boutrous, Jr. was on the renewed motion to

unseal, the supplemental memorandum in support, and the reply

thereto.

James P. Fleissner, Deputy Special Counsel, U.S.

Department of Justice, was on the response to the renewed

motion to unseal. 

Before: SENTELLE, HENDERSON, and TATEL, Circuit

Judges.
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Opinion for the Court filed PER CURIAM.

PER CURIAM: We return once again to whether we should

release material redacted from Judge Tatel’s February 15, 2005,

concurring opinion in this matter, In re Grand Jury Subpoena,

Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), reissued 438 F.3d

1141 (D.C. Cir. 2006), as well as from two ex parte affidavits

filed by the Special Counsel. Responding to an earlier motion

filed by Dow Jones, et. al., we unsealed portions of the

concurring opinion and ex parte affidavits because previously

secret grand jury information had been revealed in the

indictment of I. Lewis Libby or had been otherwise widely

reported. In re Grand Jury Subpoena, Judith Miller, 438 F.3d

1138, 1140 (D.C. Cir. 2006). 

With the Libby trial now concluded, Dow Jones has

renewed its motion, arguing that additional revelations before

and during trial justify the release of the remaining portions of

the concurring opinion and ex parte affidavits. Specifically,

Dow Jones points to (1) former Deputy Secretary of State

Richard Armitage’s broadly publicized admission that he

disclosed Valerie Plame’s identity to reporters Robert Novak

and Bob Woodward, see, e.g., CBS Evening News (CBS

television broadcast Sept. 7, 2006) (interview with Armitage);

David Johnston, Source in C.I.A. Leak Case Voices Remorse

and Chagrin, N.Y. TIMES, Sept. 8, 2006, at A26; (2) trial

testimony by Novak and Woodward confirming this fact; (3)

Armitage’s further statements that he had cooperated with the

Special Counsel’s investigation from its inception, see, e.g.,

CBS Evening News; Johnston at A26; (4) Novak’s and reporter

Matthew Cooper’s public revelations that they told the grand

jury that presidential advisor Karl Rove also revealed Plame’s

identity to them, see Matthew Cooper, What I Told the Grand

Jury, TIME, July 25, 2005, at 38; Robert Novak, My Role in the

Plame Leak Probe, CHI. SUN-TIMES, July 12, 2005, at 14; and
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(5) public statements by Rove’s attorney that the Special

Counsel had informed Rove that he would not be charged in

connection with this investigation, see, e.g., Lawyer: Rove

Won’t be Charged in CIA Leak Case, CNN.COM, June 13,

2006, http://www.cnn.com/2006/POLITICS/06/13/

rove.cia/index.html. 

Instead of limiting its request to the specific portions of the

concurring opinion and ex parte affidavits that relate to these

well-publicized disclosures, Dow Jones argues that there is “an

undeniable and overwhelming public interest in full public

disclosure” of all redacted materials in their entirety. Pet’r’s

Reply in Support of Renewed Mot. to Unseal 1. Asserting that

due to Armitage’s early confession “the Special Counsel already

knew the solution to the mystery that had provoked the

investigation in the first place,” Dow Jones contends that the

public has a right to know what justified subpoenaing reporters

Judith Miller and Matthew Cooper in the first place. Id. at 2–3.

Although the Special Counsel has no objection to unsealing

those portions of the concurring opinion and ex parte affidavits

that refer to grand jury information disclosed at the Libby trial,

he opposes any further disclosure, even of information already

widely reported in the media. The Special Counsel notes that

many of the redacted pages discuss “still-secret grand jury

matters,” including evidence regarding “persons who have not

been, and likely will never be, charged with a criminal offense.”

Gov’t’s Response to Renewed Mot. to Unseal 9–10. According

to the Special Counsel, moreover, “[p]ublic revelations by

persons about their involvement in a grand jury investigation,

even the disclosure of some details, do[] not eliminate the

protections” governing grand jury material. Id. at 10.

Consistent with these views, the Special Counsel submitted a

sealed affidavit identifying the redacted material he believes we

can now make public. 
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As we explained in our earlier opinion, the legal principles

governing access to grand jury materials are relatively

straightforward. See In re Grand Jury Subpoena, Judith Miller,

438 F.3d 1138, 1139 (D.C. Cir. 2006). Federal Rule of

Criminal Procedure 6(e) prohibits disclosure of “matter[s]

occurring before the grand jury,” FED. R. CRIM. P. 6(e)(2), and

thus requires that “[r]ecords, orders, and subpoenas relating to

grand-jury proceedings must be kept under seal to the extent

and as long as necessary to prevent the unauthorized disclosure

of a matter occurring before a grand jury,” FED. R. CRIM. P.

6(e)(6). Grand jury investigations are conducted in strict

secrecy to encourage witnesses to testify “fully and frankly,” to

prevent those about to be indicted from fleeing, and to ensure

that “persons who are accused but exonerated by the grand jury

will not be held up to public ridicule.” Douglas Oil Co. v.

Petrol Stops Nw., 441 U.S. 211, 219 (1979). Although public

access plays an important role in other aspects of the judicial

process, “there is no First Amendment right of access to grand

jury proceedings,” nor do First Amendment protections extend

to ancillary materials dealing with grand jury matters, such as

Judge Tatel’s concurring opinion. In re Motions of Dow Jones

& Co., 142 F.3d 496, 499, 502 (D.C. Cir. 1998) (finding no

First Amendment right of access to ancillary hearings relating

to grand jury matters). Indeed, none of the cases Dow Jones

cites in support of its First Amendment argument deals with

grand jury proceedings. See Gentile v. State Bar of Nev., 501

U.S. 1030 (1991) (state restrictions on pre-trial attorney

speech); Press-Enterprise Co. v. Superior Court, 478 U.S. 1

(1986) (public access to preliminary hearings); Press-Enterprise

Co. v. Superior Court, 464 U.S. 501 (1984) (public access to

voir dire); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980) (public access to criminal trials); Wash. Post v.

Robinson, 935 F.2d 282 (D.C. Cir. 1991) (public access to plea

agreements).
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Yet as we have also previously pointed out, “[g]rand jury

secrecy is not unyielding” when there is no secrecy left to

protect. In re Grand Jury Subpoena, Judith Miller, 438 F.3d

1138, 1140 (D.C. Cir. 2006). Rule 6(e)(6) requires that

“[r]ecords, orders, and subpoenas relating to grand-jury

proceedings” remain sealed only “to the extent and as long as

necessary to prevent the unauthorized disclosure” of such

matters. Moreover, as we held in In re North, 16 F.3d 1234

(D.C. Cir. 1994), when once-secret grand jury material becomes

“sufficiently widely known,” it may “los[e] its character as Rule

6(e) material.” Id. at 1245. 

Applying these standards, we reject Dow Jones’s request to

unseal these materials in their entirety. Even if the Armitage

revelation created a compelling public interest in them—and it

is unclear to us why, as Dow Jones asserts, the Special

Counsel’s knowledge that one individual leaked Plame’s

identity calls into question the validity of his continuing

investigation into others who may have unlawfully leaked this

same information—this is irrelevant given that there is no First

Amendment right of access to secret grand jury matters. Rule

6(e) governs what we may or may not release to the public.

Insofar as materials concern still-secret grand jury matters, they

must remain sealed. 

That said, as requested by Dow Jones, we will release those

redacted portions of Judge Tatel’s concurring opinion and the

two ex parte affidavits that discuss grand jury matters revealed

either during the Libby trial or by grand jury witnesses

themselves. Although not every public disclosure waives Rule

6(e) protections, one can safely assume that the “cat is out of the

bag” when a grand jury witness—in this case

Armitage—discusses his role on the CBS Evening News. In re

North, 16 F.3d at 1245; see In re Motions of Dow Jones & Co.,

142 F.3d at 505 (noting that where grand jury witness’s attorney
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“virtually proclaimed from the rooftops that his client had been

subpoenaed,” this fact “lost its character as Rule 6(e) material”

(internal quotation marks omitted)). We think the same is true

with respect to the disclosures made by Novak, Cooper, and

Rove’s attorney. We unseal the concurring opinion and the ex

parte affidavits, however, only to the extent that they have been

previously revealed. Grand jury material not yet publicly

disclosed will remain redacted.

While we appreciate the Special Counsel’s

recommendations as to precisely which redacted material we

can release, his proposal was far too narrow. At our direction,

therefore, the Special Counsel has now prepared and filed with

this court a revised affidavit identifying those portions of his

sealed ex parte affidavits discussing grand jury matters that

have become widely known through whatever source—whether

by revelations at the Libby trial or from grand jury witnesses

themselves—and can therefore be released.

It is therefore ORDERED and ADJUDGED that, pursuant

to Circuit Rule 47.1(c), Dow Jones’s motion is granted in part

and denied in part, and that the redacted opinion and ex parte

affidavits shall be placed in the public docket. The formerly

redacted portions of Judge Tatel’s concurring opinion appear in

italics on pages 32–35 and 38–39.

So ordered.