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Case 1:20-cr-00330-PAE Document 809 Filed 08/11/25 Page 13 of 31

276, 285–87 (2d Cir. 2022) (“Lawyers’ Committee for 9/11”). The doctrine is based on the
district court’s supervisory authority over the grand juries it empanels. In re Craig, 131 F.3d at
102 & n.2. It today is recognized in the Second and Seventh Circuits, but not elsewhere.12

The Second Circuit has set out a “non-exhaustive list of [nine] factors that a trial court
might want to consider when confronted with these highly discretionary and fact-sensitive
‘special circumstances’ motions.” Id. at 106. These are:

(i) the identity of the party seeking disclosure;

(ii) whether the defendant to the grand jury proceeding or the government opposes
the disclosure;

(iii) why disclosure is being sought in the particular case;

(iv) what specific information is being sought for disclosure;

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12 Most Circuits to address the issue have held that the only justifications for disclosing grand
jury matters are those set out in Rule 6(e)(3). See, e.g., McKeever v. Barr, 920 F.3d 842, 843,
850 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 597 (2020); In re Grand Jury 89-4-72, 932 F.2d
481, 488 (6th Cir. 1991); United States v. McDougal, 559 F.3d 837, 841 (8th Cir. 2009); Pitch v.
United States, 953 F.3d 1226, 1241 (11th Cir. 2020) (en banc), cert. denied, 141 S. Ct. 624
(2020). The Seventh Circuit is in accord with the Second Circuit that a district court may order
the release of grand jury materials upon a showing of special circumstances. See Carlson v.
United States, 837 F.3d 753, 766–67 (7th Cir. 2016). The First Circuit has held that a district
court may not authorize disclosure of grand jury materials based on their historical or public
interest, but has left open whether a court could do so “when the fair administration of justice in
a proceeding is at issue.” Lepore v. United States, 27 F.4th 84, 93–94 (1st Cir. 2022).

Before the D.C. Circuit’s 2019 decision finding Rule 6(e) to supply the only bases for disclosure,
district courts in that Circuit had considered—and sometimes granted—petitions to disclose
grand jury materials of historical importance, citing the Second Circuit’s precedents recognizing
their authority to permit such disclosures. Compare In re Petition of Kutler, 800 F. Supp. 2d 42,
50 (D.D.C. 2011) (granting request to disclose President Nixon’s grand jury testimony about
Watergate due to its historical importance), and In re Application to Unseal Dockets Related to
the Independent Counsel’s 1998 Investigation of President Clinton, 308 F. Supp. 3d 314, 330–36
(D.D.C. 2018) (ordering disclosure of some grand jury materials related to the investigation of
President Clinton’s business dealings and his relationship with a White House intern), with In re
Shepard, 800 F. Supp. 2d 37, 39–40 (D.D.C. 2011) (denying as overbroad request for disclosure
of all testimony and materials associated with every witness before three Watergate grand juries),
and In re Nichter, 949 F. Supp. 2d 205, 212–13 (D.D.C. 2013) (denying disclosure of certain
grand jury records about Watergate because at least one subject of the testimony was still alive).

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