An Institution “at Arm’s Length”: Reconsidering Supervisory Power over the Federal Grand Jury

Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority.

Several courts of appeals have held that district court judges may exercise inherent supervisory power in authorizing the release of grand jury records. Judges may consider the public interest in disclosure, compare it to the institutional interest in secrecy, and decide for themselves. Other circuits find no such power.

The circuits have reached an impasse on the text of the Rule alone, with each side offering compelling but incomplete justifications for their interpretation. This Comment provides an alternative path forward. By examining the history of the grand jury and the relationship between the Federal Rules and common law supervisory power, this Comment argues that district court judges lack inherent supervisory power over the grand jury to order disclosure. Courts that follow the exhaustive position—that Rule 6(e)(3) limits the exceptions when a court may authorize disclosure—better align with the understanding of the grand jury as an independent body. Conscious of this historical positioning, this Comment returns to both influential and overlooked Supreme Court precedent and offers a more contextually grounded interpretation of each. Judges have discretion to act within the bounds of Rule 6(e), not outside of it.