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Seventy-year old grand jury materials are to be released



By Laura Mallory

August of 1942 marks the first and only time in the history of the United States in which the federal government attempted to prosecute a major newspaper for allegedly violating the Espionage Act, which prohibits the disclosure of classified information which was limited or restricted by the government for national security reasons. In 1942, the Tribune published a story “Navy Had Word Of Jap Plan to Strike At Sea,” which suggested that the Navy had detailed information regarding Japan’s plan to attack prior to the actual attack.

The story also cited to reliable sources in Navy Intelligence. It appeared that the story was based on information obtained as a result of the U.S. Navy successfully cracking the radio codes used by the Japanese. As a result of Franklin D. Roosevelt’s request for a federal investigation of the Tribune for violations of the Espionage Act, a grand jury convened and heard testimony and investigated the alleged violations.

No indictments were issued as a result of the grand jury hearing. Almost seventy five years later, a naval historian requested the federal district court in Chicago to unseal the transcripts of what transpired at that grand jury hearing.

Court’s inherent authority
In support of the request, the historian asserted the public has a compelling interest in the release of the sought information due to the historical significance of that grand jury proceeding and a court has inherent authority to order disclosure of grand jury transcripts under certain circumstances. The request was opposed by the U.S. government, which took the position that “historical significance” is not a reason upon which grand jury transcripts may be disclosed.

There is a long standing tradition that what occurs before a grand jury shall be kept secret, however, a rule provides a few enumerated exceptions to this general rule which allow for the disclosure of grand jury materials under certain situations. However, it was undisputed by both the historian and the US government that none of the enumerated exceptions apply in the present situation. The issue became whether courts have inherent authority to release the requested information for a reason other than the enumerated exceptions.

The court analyzed other cases which provide that a federal court cannot exercise its inherent authority if it would conflict with a rule or statute. However, here, the rule enumerating the circumstances under which grand jury materials may be released does not forbid the release of grand jury materials based on historical significance, rather, it is silent as to that basis.

The court found that a court can utilize its inherent authority as long as it is done in a manner consistent with federal law and rules. Furthermore, the court found that the language of the rule providing the enumerated exceptions is not exclusive, so the enumerated exceptions are not the only circumstances under which the release of grand jury material is permitted.

In its determination of whether the materials should be released, the court considered the relationship between the government and the press, specifically as to matters impacting national security; the amount of time that has passed since the grand jury proceedings; the fact that most of the witnesses involved in the investigation have passed away and the fact the government failed to identify any national security issues that would come as a result of the release of the materials. As a result, based its inherent authority, the court ordered the grand jury transcripts to be released.




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