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IN RE REPORT & RECOMMENDATION OF JUNE 5

March 18, 1974

In re REPORT AND RECOMMENDATION OF JUNE 5, 1972 GRAND JURY CONCERNING TRANSMISSION OF EVIDENCE TO the HOUSE OF REPRESENTATIVES

Sirica, Chief Judge.


The opinion of the court was delivered by: SIRICA

On March 1, 1974, in open court, the June 5, 1972 Grand Jury lodged with the Court a sealed Report. The materials comprised in that Report were filed by the Court and ordered held under seal pending further disposition. The materials were accompanied by a two-page document entitled Report and Recommendation which is in effect a letter of transmittal describing in general terms the Grand Jury's purpose in preparing and forwarding the Report and the subject matter of its contents. The transmittal memorandum further strongly recommends that accompanying materials be submitted to the Committee on the Judiciary of the House of Representatives for its consideration. The Grand Jury states it has heard evidence that it regards as having a material bearing on matters within the primary jurisdiction of the Committee in its current inquiry, and notes further its belief that it ought now to defer to the House of Representatives for a decision on what action, if any, might be warranted in the circumstances.

After having had an opportunity to familiarize itself with the contents of the Report, the Court invited all counsel who might conceivably have an interest in the matter, without regard to standing, to state their positions concerning disposition. *fn1" The President's position, through counsel, is that he has no recommendation to make, suggesting that the matter is entirely within the Court's discretion. *fn2" He has requested that should the Report be released, his counsel have an opportunity to review and copy the materials. *fn3" The House Judiciary Committee through its Chairman has made a formal request for delivery of the Report materials. *fn4" The Special Prosecutor has urged on behalf of the Grand Jury that its Report is authorized under law and that the recommendation to forward the Report to the House be honored. *fn5" Finally, attorneys for seven persons named in an indictment returned by the same June, 1972 Grand Jury on March 1, 1974, just prior to delivery of the Grand Jury Report, *fn6" have generally objected to any disclosure of the Report, and in one instance recommended that the Report be expunged or returned to the Jury. *fn7"

 Having carefully examined the contents of the Grand Jury Report, the Court is satisfied that there can be no question regarding their materiality to the House Judiciary Committee's investigation. Beyond materiality, of course, it is the Committee's responsibility to determine the significance of the evidence, and the Court offers no opinion as to relevance. The questions that must be decided, however, are twofold: (1) whether the Grand Jury has power to make reports and recommendations, (2) whether the Court has power to disclose such reports, and if so, to what extent.

 I.

 Without attempting a thorough exposition, the Court, as a basis for its discussion, notes here some principal elements in the development and authority of the grand jury. Initially, the grand jury, or its forerunner, was employed to supply the monarch with local information regarding criminal conduct and was wholly a creature of the crown. As the grand jury gained institutional status, however, it began to act with a degree of independence, and in some cases refused to indict persons whom the state sought to prosecute. *fn8" Thereafter it became common for grand juries to serve the dual function of both charging and defending. By virtue of the Fifth Amendment, grand jury prerogatives were given institutional status in the United States, and grand juries have ever since played a fundamental role in our criminal justice system. *fn9"

 The grand jury is most frequently characterized as an adjunct or arm of the judiciary. While such a characterization is in the general sense accurate, it must be recognized that within certain bounds, the grand jury may act independently of any branch of government. The grand jury may pursue investigations on its own without the consent or participation of a prosecutor. *fn10" The grand jury holds broad power over the terms of charges it returns, *fn11" and its decision not to bring charges is unreviewable. Furthermore, the grand jury may insist that prosecutors prepare whatever accusations it deems appropriate and may return a draft indictment even though the government attorney refuses to sign it. *fn12"

 We come thus to the question of whether grand jury prerogatives extend to the presentation of documents that disclose evidence the jury has gathered but which do not indict anyone. The sort of presentment mentioned above, where government attorneys decline to start the prosecutorial machinery by withholding signature from a draft indictment, is in the correct sense such a report since grand jury findings are disclosed independent of criminal proceedings, and it appears that nowhere has grand jury authority for this practice been denied, particularly not in this Circuit. *fn13" Nevertheless, where the jury's product does not constitute an indictment for reasons other than an absent signature, there is some disagreement as to its propriety.

 It should be borne in mind that the instant Report is not the first delivered up by a grand jury, and that, indeed grand juries have historically published reports on a wide variety of subjects. *fn14" James Wilson, a signer of both the Declaration of Independence and the Constitution and later an Associate Justice of the Supreme Court made these pertinent observations in 1791:

 
The grand jury are a great channel of communication, between those who make and administer the laws, and those for whom the laws are made and administered. All the operations of government, and of its ministers and officers, are within the compass of their view and research. They may suggest public improvements, and the modes of removing public inconveniences: they may expose to public inspection, or to public punishment, public bad men, and public bad measures. *fn15"

 On this historical basis, with reliance as well upon principles of sound public policy, a number of federal courts have upheld and defined the general scope of grand jury reportorial prerogatives. In In Re Presentment of Special Grand Jury Impaneled January, 1969, 315 F. Supp. 662 (D. Md. 1970), Chief Judge Thomsen received a "presentment" describing the course of an investigation by a Baltimore grand jury into possible corruption related to a federal construction project. The "presentment" also outlined indictments which the grand jury was prepared to return in addition to other indictments handed up with the "presentment," but noted that the United States Attorney had been directed not to sign them. The "presentment" was held under seal while interested parties argued its disposition, and was then released publicly in modified form. The grand jury's common law powers, Chief Judge Thomsen ruled, "include the power to make presentments, sometimes called reports, calling attention to certain actions of public officials, whether or not they amounted to a crime." *fn16"

 Chief Judge Thomsen also cited Judge Wisdom's concurring opinion in United States v. Cox, 342 F.2d 167 (5th Cir.) cert. denied 381 U.S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700 (1965), for the proposition that, whether used frequently or infrequently, there is no reason to suppose that the powers of our constitutional grand jury were intended to differ from those of its "English progenitor." *fn17" In the Cox case four of the seven judges of the Fifth Circuit sitting en banc held that courts may order the United States Attorney to assist a grand jury by drafting "forms of indictment" according to the jury's wishes, while a different four-three combination ruled that the prosecutor could not be compelled to sign the presentment and thereby concur, on behalf of the executive branch, in prosecution. Judge Brown observed, without challenge from his brethren,

 
To me the thing [is] this simple: the Grand Jury is charged to report. It determines what it is to report. It determines the form in which it reports. *fn18"

 The Fifth Circuit recently had an opportunity to consider the specific question of grand jury reports, but was able to "pretermit the issue" as raised by a state court judge unfavorably mentioned in the report. In Re Grand Jury Proceedings, 479 F.2d 458 (5th Cir. 1973). The court found that the portions of the report dealing with purely local affairs were of no concern to a federal grand jury and should be expunged. The remainder of the report was left intact, however, and Judge Ainsworth writing for the court observed, citing a lengthy footnote:


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