U.S. Supreme Court building in Washington, D.C. Photo: Diego M. Radzinschi/ALM

An 82-year-old researcher who has spent decades searching for an answer to the disappearance of a critic of former Dominican Republic dictator Rafael Trujillo is asking the U.S. Supreme Court to rule that district courts have inherent authority to release grand jury materials, a decision that could spill over into Congress' quest to obtain grand jury evidence from the special counsel.

Stuart McKeever has been seeking a limited release of grand jury materials from the more than 60-year-old criminal prosecution of a former FBI agent believed to have been involved in the vanishing of Columbia University professor Jesus de Galindez from New York City in 1956.

On appeal, a divided panel of the U.S. Court of Appeals for the D.C. Circuit ruled in April that district courts lack inherent authority to disclose grand jury materials outside the terms of Federal Criminal Procedure Rule 6(e). Senior Judge Douglas Ginsburg, joined by Judge Gregory Katsas, wrote that district courts are limited to the exceptions to grand jury secrecy listed in Rule 6(e).

"The contrary reading proposed by McKeever—which would allow the district court to create such new exceptions as it thinks make good public policy—would render the detailed list of exceptions merely precatory and impermissibly enable the court to 'circumvent' or 'disregard' a Federal Rule of Criminal Procedure," wrote Ginsburg.

Judge Sri Srinivsan dissented. He wrote that his reading of the court's 1974 en banc decision in Haldeman v. Scirica allows a district court to release grand jury materials in circumstances beyond those expressly identified in Rule 6(e).

The broader issue of access to grand jury records is now a central part of the House Judiciary Committee's fight to view material gathered by the special counsel in the Russia investigation. Lawyers for the House have claimed the records are releasable as part of the House impeachment inquiry, and also because courts have the inherent power to release grand jury records.

A July 26 application filed by the House seeking access to the special counsel's grand jury records noted the ongoing dispute about whether judges can, on their own, order the disclosure of grand jury records. The filing further noted the split among federal appeals courts on that issue.

"In the event McKeever is subject to further review, the Committee respectfully preserves its argument with respect to this Court's inherent authority to authorize disclosure of grand jury materials," House general counsel Doug Letter wrote in the court filing.

In the Supreme Court, McKeever, represented by Latham & Watkins partner Roman Martinez, urges the justices to decide "whether district courts have inherent authority to release grand jury materials in extraordinary circumstances, such as when the case is historically significant and the public interest strongly favors disclosure."

Martinez, in an interview, said, "These requests, when they do come up, seem to be generally reasonable and targeted on things people should know about. When time passes and privacy concerns dissipate, we can trust district courts to be reasonable, and if there is a mistake, we still have appellate courts."

Martinez's then-associate Graham Phillips was originally appointed as amicus to support McKeever's side in the D.C. Circuit. "I supervised the project and appeared on the briefs," Martinez said. "Graham left Latham to join the D.C. Solicitor General's Office. When we lost the panel decision, I was hired by McKeever directly to handle the rehearing petition, and now the cert petition."

In his petition, Martinez tells the justices that McKeever's case "raises important questions about the inherent authority of federal courts, the transparency of our judicial system, and the public's ability to understand important events in our Nation's history."

He notes that federal appellate courts have recognized district courts' inherent authority to release grand jury records in special circumstances where the public interest outweighs the need for continued secrecy. He points, for example, to releases involving Alger Hiss's espionage for the Soviet Union, intelligence leaks during World War II, and the Watergate scandal.

"In this case, however, a divided panel of the D.C. Circuit held that Federal Rule of Criminal Procedure 6(e) eliminates that inherent authority to release grand jury materials—even when the records at issue have significant historical value and the need for secrecy has dissipated over the course of decades," wrote Martinez in his petition.

The government also has recognized this inherent authority in the past, wrote Martinez, although it opposed McKeever's request.

The petition also argues that review should be granted because the D.C. Circuit decision created a circuit split with the Second, Seventh and Eleventh circuits, and also rejected the position of the Advisory Committee on Criminal Rules, which in 2011 confirmed that Rule 6(e)'s secrecy obligation does not directly apply to the district court.

The rule's terms are "straightforward," according to Martinez. District courts are not on the rule's list of entities bound by secrecy. Rule 6(e)'s text and history, he wrote, show that it continued the district courts' preexisting authority over grand jury records, including the ability to release such records in special circumstances, he wrote.

The D.C. Circuit decision's "anti-textual, anti-historical, one-size-fits-all approach misreads Rule 6(e)'s language and disserves the public's compelling interest in knowing our Nation's past," Martinez concluded.

U.S. Solicitor General Noel Francisco has not yet responded to the petition.

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