Today's order states:
Now that the grand jury has returned an indictment against I. Lewis Libby for perjury, obstruction of justice, and making false statements to federal investigators, amicus curiae Dow Jones & Company moves to unseal the eight pages--or, failing that, portions thereof relating to matters that are now public. See D.C. Cir. R. 47.1©. Although objecting to unsealing the opinion in its entirety, the special counsel informs us that nothing in the concurring opinion remains classified and agrees that portions of the redacted opinion may be made public without jeopardizing grand jury secrecy. We also asked the special counsel to tell us whether portions of the two affidavits he initially submitted to this court explaining the need for the reporters' cooperation may also be released to the public. In response, he filed an affidavit expressing his view that, consistent with the need for grand jury secrecy, portions of one of the two affidavits may be unsealed.
....we are satisfied here that there is no longer any need to keep significant portions of the eight pages under seal. Libby's indictment, now part of the public record, reveals some grand jury matters, and we see little purpose in protecting the secrecy of grand jury proceedings that are no longer secret. Because discrete portions of the eight pages can be redacted without doing violence to their meaning, today we unseal those portions containing grand jury matters that the
special counsel confirmed in the indictment or that have been widely reported. (The formerly redacted materials appear in italics on pages 30-39.) On our own initiative, moreover, we also unseal parts of one of the special counsel's affidavits upon which we relied in concluding that Miller's evidence was critical to the grand jury investigation. If the public is to see our reasoning, it should also see what informed that reasoning.
....But just as some parts of the record may now be made public, others must remain secret. After reviewing the special counsel's submissions, we agree that some information in the eight pages and in the special counsel's affidavits unquestionably remains grand jury material that Rule 6(e) obligates us to maintain under seal. Its publication at this juncture could identify witnesses, reveal the substance of their testimony, and--worse still--damage the reputations of
individuals who may never be charged with crimes. That the special counsel's investigation is ongoing only heightens the need for maintaining grand jury secrecy, for the special counsel is entitled to conduct his investigation out of the public eye and with the full cooperation of witnesses who have no fear their role in the investigation will lightly be disclosed.
