In my earlier post on the Trump administration’s apparently imminent application for the release of grand jury testimony from the Jeffrey Epstein investigation, I explained that, despite governing Rule 6(e)’s ostensible limitation of the circumstances in which courts are empowered to authorize disclosure of presumptively secret grand jury materials,

the Justice Department and the federal courts usually take that the position that, because the court has “supervisory” authority over the grand jury, judges have authority to unseal and disclose grand jury materials even if such disclosure would not be in literal compliance with the rule.

For many years, I was a federal prosecutor in the Southern District of New York, where the most recent federal investigation of Epstein (and the eventual trial of Ghislaine Maxwell) took place. But I retired from the SDNY more than two decades ago, and I haven’t kept current on the jurisprudence of grand jury disclosure in the Second Circuit, whose decisions control SDNY cases. So I’ve done some poking around.

As far as I can tell, without having done the kind of research I’d do if I were litigating a case, the Second Circuit instructs that the exceptions set forth in Rule 6(e)(3) (which I outlined in my earlier post) presumptively bind district judges, but that there is authority in “special circumstances” to authorize disclosure outside the exceptions. That is, the courts have “supervisory” authority over the grand jury, and while secrecy rules are not to be ignored, they are not “absolute.”

That was the Second Circuit’s reasoning in an important 1997 decision in In Re Petition of Bruce Craig, written by Judge Jose Cabranes, a stellar jurist. It’s an interesting case, involving a doctoral student who was writing his dissertation on Harry Dexter White, a top Treasury Department official in President Franklin D. Roosevelt’s wartime administration and later the U.S. executive director of the then–newly formed International Monetary Fund. White was found to have passed classified intelligence to the Soviet Union. He resigned from the IMF in 1948 upon learning that the Justice Department had ordered a grand jury investigation. (White’s activities had been exposed by Whittaker Chambers and Elizabeth Bentley.)

Craig sought the White grand jury testimony for scholarly research, which is not an exception to Rule 6(e) secrecy. The Second Circuit upheld District Judge Shira Scheindlin’s denial of that application.

The Second Circuit agreed with Judge Scheindlin’s observation that “if courts granted disclosure whenever the public had an interest in grand jury proceedings, Rule 6(e) would be eviscerated.” Still, courts have discretion and there are no absolutes. Instead, Judge Cabranes wrote:

Mindful that there is no talismanic formula or rigid set of prerequisites, we offer the following non-exhaustive list of factors that a trial court might want to consider when confronted with these highly discretionary and fact-sensitive “special circumstances” motions: (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; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material–either permissibly or impermissibly–has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question.

While the significance of each individual factor will obviously vary from case to case, two factors seem especially important — and they cut in opposite directions in the Epstein situation.

First, it matters if the government itself is making the disclosure application, or is at least supportive of disclosure. “The government’s position should be paid considerable heed,” the Second Circuit reasoned, because “if the government supports a motion for disclosure, that should serve as a preliminary indication that the need for secrecy is not especially strong.”

Second, however, whether a grand jury proceeding is relatively recent matters, not least because people whose reputations and possibly other interests could be prejudiced by disclosure will still be alive:

Time matters in several ways. First, if historical interest in a specific case has persisted over a number of years, that serves as an important indication that the public’s interest in release of the information is substantial. (Hence the hypotheticals [earlier in the opinion] involving John Wilkes Booth and Aaron Burr.) Second, the passage of time erodes many of the justifications for continued secrecy. See [the Supreme Court’s ruling in Douglas Oil v. Petrol Stops Northwest (1979)] … (noting that the interests in grand jury secrecy are reduced after the grand jury has ended its activities). Third, the passage of time eventually, and inevitably, brings about the death of the principal parties involved in the investigations, as well as that of their immediate families. And the continued existence and vulnerability of such parties is, of itself, a factor that a court should consider. [Citing an unpublished SDNY opinion from 1987, “concluding that, in light of the death of the principals, ‘we find a considerable public interest in disclosure and no interest in secrecy’”).

To sum up, the need for secrecy cannot be overcome merely by public curiosity. The fact that the Trump Justice Department is seeking disclosure will be important to the SDNY court because it will signal that there is no further investigative-secrecy imperative. Yet that may be eclipsed by the facts that (a) many affected people, who have never been charged with crimes, might object to disclosure; and (b) they will be able to argue that disclosure is not supported by the text of Rule 6(e)(3).