Elbert P. Tuttle U.S. Court of Appeals Building, Atlanta. (Photo: Rebecca Breyer/ALM)

The U.S. Department of Justice is battling historians and journalists over whether federal judges can unseal grand jury transcripts in old cases of historical significance.

The matter will be argued next month before all 12 judges of the U.S. Court of Appeals for the Eleventh Circuit in a case stemming from the 1946 lynching of two African American couples at the Moore's Ford Bridge in Walton County, Georgia.

In February, an Eleventh Circuit panel split 2-1 in favor of a Maryland historian seeking a transcript of the grand jury that investigated the lynching, for which no one was ever charged.

The full Eleventh Circuit voted to rehear the case, asking lawyers to address whether the court should scrap its 1984 precedent allowing federal judges to unseal grand jury records in an "exceptional situation."

Journalists, historians, archivists and others have asked to weigh in on the side of historian Anthony Pitch, who died in June and whose case has been continued by his wife.

"The Court's inherent power to release grand jury records advances two core values—the need to inform the public about government conduct and the need to restore faith in the judiciary for communities whose confidence in the courts has been shattered" by lynchings and other abuses, read a brief submitted by Carlton Fields lawyers Richard Ovelmen and David Karp in Miami. They represent Gilbert King, who has written books about lynching, and the First Amendment Foundation, a Tallahassee, Florida, nonprofit.

The amicus briefs argue the 1984 precedent, known as Hastings, 735 F.2d 1261, is sound, but doubts were evident on the Eleventh Circuit panel in February.

Judge Adalberto Jordan, who concurred with Judge Charles Wilson in upholding the ruling for the historian, said he would have decided the Hastings case differently. He also noted federal judges rejected an effort by U.S. Attorney General Eric Holder in 2011 to change grand jury secrecy rules that would have established procedures for unsealing grand jury records.

Visiting Senior Judge James L. Graham of the Southern District of Ohio, sitting by designation, dissented from the February decision. He wrote, "I believe that judges should not be so bold as to grant themselves the authority to decide that the historical significance exception should exist and what the criteria should be."

Wilson wrote for the majority that the case's role in the civil rights movement and the passage of more than 70 years, among other factors, meant it served as a historically significant exception to keeping the transcripts secret.