In Re: Application to Unseal Dockets Related to the Independent Counsel's 1998 Investigation of President Clinton ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE APPLICATION TO UNSEAL Misc. Action No. 18-00019 (BAH)
DOCKETS RELATED TO THE
INDEPENDENT COUNSEL’S 1998 Chief Judge Beryl A. Howell
INVESTIGATION OF PRESIDENT
CLINTON
MEMORANDUM OPINION
Pending before the Court is a request from petitioner Cable News Network, Inc. (“CNN”)
and its journalist Katelyn Polantz to unseal eleven Miscellaneous dockets associated with the
1998 investigation by Independent Counsel Kenneth W. Starr into the relationship of former
President William Jefferson Clinton with a former White House intern. See generally Request to
Unseal Dockets Related to the Independent Counsel’s 1998 Investigation of President Clinton
(“CNN/Polantz Unsealing Request”), ECF No. 1. Mr. Starr’s investigation of the former President
had begun four years earlier in 1994, when a Special Division of the D.C. Circuit appointed him
as statutory independent counsel to take over an investigation of certain business transactions by
then-President Clinton while he was Governor of Arkansas in the 1980s. In re Madison Guar.
Sav. & Loan Ass’n, No. 94-1, 1994 WL 913274, at *1 (D.C. Cir. Special Div. Aug. 5, 1994). 1
In 1998, shortly after former President Clinton answered written discovery requests in a
civil lawsuit against him involving claims of sexual harassment, the Attorney General, on behalf
1
The Independent Counsel investigation began on January 20, 1994, when then-Attorney General Janet
Reno appointed Robert B. Fiske as “regulatory independent counsel to investigate allegations of questionable
business transactions by then-President William Jefferson Clinton while he was Governor of Arkansas in the
1980’s.” In re Madison Guar. Sav. & Loan, 389 F.3d 1298, 1300 (D.C. Cir. 2004). On August 5, 1994, a Special
Division of the D.C. Circuit appointed Starr as statutory independent counsel to take over Fiske’s investigation. In
re Madison Guar. Sav. & Loan Ass’n, 1994 WL 913274, at *1. Starr served as Independent Counsel until his
resignation on October 18, 1999, at which point Robert W. Ray was sworn in as the final Independent Counsel
overseeing this investigation, a final report for which was issued in 2001. See ROBERT W. RAY, FINAL REPORT OF
THE INDEPENDENT COUNSEL IN RE MADISON GUARANTY SAVINGS AND LOAN ASSOCIATION Vol. I, App. 4 at xxxiv
(Jan. 5, 2001), available at https://www.gpo.gov/fdsys/pkg/GPO-ICREPORT-MADISON/content-detail.html.
1
of the Independent Counsel, requested that the jurisdiction of the Office of Independent Counsel
(“OIC”) be expanded to permit inquiry into “whether Monica Lewinsky or others had violated
federal law in connection with the Jones v. Clinton case.” KENNETH W. STARR,
COMMUNICATION FROM KENNETH W. STARR, INDEPENDENT COUNSEL, TRANSMITTING A
REFERRAL TO THE UNITED STATES HOUSE OF REPRESENTATIVES FILED IN CONFORMITY WITH THE
REQUIREMENTS OF TITLE 28, UNITED STATES CODE, SECTION 595(C) (“Starr Report”), H.R. DOC.
NO. 105-310 (1998), Vol. I at 8. The OIC suspected that the former President may have lied
under oath, in his written responses, about his sexual relations and sought to investigate whether
the former President or his agents had pressured witnesses in the civil case to “lie in order to
benefit the President.” Id. at 2–3, 7–8. A Special Division of the U.S. Court of Appeals for the
District of Columbia Circuit (“Special Division”) approved this request and expanded the OIC’s
authority to investigate “whether Monica Lewinsky or others suborned perjury, obstructed justice,
intimidated witnesses, or otherwise violated federal law,” In re Madison Guar. Sav. & Loan
Ass’n, No. 94-1, 1998 WL 472444, at *1 (D.C. Cir. Special Div. Jan. 16, 1998), reprinted in
Starr Report, Vol. II at 6–7, thereby shifting the focus of the OIC’s investigation from the former
President’s business dealings to his relationship with a former White House intern. 2
This latter investigation culminated, in September 1998, with a report totaling over 8,000
pages, including multiple Appendices and Supplemental Materials, to the U.S. House of
Representatives. In that Report, Starr highlighted three acts of former President Clinton
uncovered in the investigation into the former President’s relationship with a former White
House intern that “may constitute grounds for an impeachment”: (1) “lying under oath,”
2
The expanded authority also permitted the OIC to investigate “related violations of federal criminal law,” “any
obstruction of the due administration of justice,” and “any material false testimony or statement in violation of federal
criminal law, arising out of his investigation.” In re Madison Guar. Sav. & Loan Ass’n, 1998 WL 472444, at *1.
2
(2) “obstructi[ng] justice,” and (3) making “false statements to the American people about his
relationship with Ms. Lewinsky” and “attempt[ing] to conceal the truth about his relationship
with Ms. Lewinsky from the judicial process” in the sexual harassment case. Starr Report, Vol. I
at 165, 204, 210. 3 Among those over 8,000 pages were citations to and quotations from
transcripts of grand jury testimony and other grand jury documents, as well as details about
litigation over compliance with grand jury subpoenas—information that was protected against
disclosure by Federal Rule of Criminal Procedure 6(e) but was nevertheless disclosed pursuant to
an order from the D.C. Circuit’s Special Division, “for purposes of Federal Rule of Criminal
Procedure 6(e)(3)(C)(i),” permitting the Independent Counsel to “disclos[e] [ ] all grand jury
material that the independent counsel deems necessary” to comply with his obligation of
reporting to Congress. Starr Report, Vol. II at 10; see also FED. R. CRIM. P. 6(e)(2)(B)
(prohibiting the disclosure of “matter[s] occurring before the grand jury” with certain
exceptions). 4
Set against this extraordinary unveiling of grand jury material, CNN now seeks to unseal
and make publicly available the docket numbers and documents filed in a total of eleven matters
3
The investigation into former President Clinton’s relationship with a former White House intern did not
result in any criminal charges against any person. The OIC’s original investigation into former President Clinton’s
business and land dealings, however, resulted, in the first year of the investigation, in five indictments and five
convictions, see RAY, supra note 1, Vol. I, App. 5 at cii–cx, three of which indictments predated the OIC and were
initiated by prosecutors in the Eastern District of Arkansas, id. at i. Over the next six years of the OIC investigation,
ten indictments and four convictions were obtained in Year 2 (1995); two indictments and three convictions were
obtained in Year 3 (1996); one conviction was obtained in Year 4 (1997); six indictments and two convictions were
obtained in Year 5 (1998); and one conviction was obtained in Year 6 (1999). Id. at cii–cx.
4
In this order, the Special Division of the D.C. Circuit granted the Independent Counsel’s “Ex Parte Motion
for Approval of Disclosure of Matters Occurring Before a Grand Jury,” which motion remains under seal with the
D.C. Circuit. Starr Report, Vol. II at 10. As noted, the D.C. Circuit predicated the disclosure authorization on
“Federal Rule of Criminal Procedure 6(e)(3)(C)(i),” which is now codified at Rule 6(e)(3)(E)(i) and provides that a
court may authorize disclosure of a grand jury matter “preliminarily to or in connection with a judicial proceeding.”
FED. R. CRIM. P. 6(e)(3)(E)(i). Consideration by the House of Representatives, even in connection with a
constitutionally sanctioned impeachment proceeding, falls outside the common understanding of “a judicial
proceeding.” Cf. In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1268, 1271 (11th Cir.
1984) (concluding that a judicial investigating committee “is at least closely analogous” to a judicial proceeding,
while noting that “impeachment proceedings before Congress, which are a possible outcome of this investigation,
are not by a ‘court,’ although the Congress becomes something like a court for this purpose”).
3
related to the OIC’s investigation of former President Clinton’s relationship with a former White
House intern. These docket numbers were previously under seal, and therefore even the
unsealed documents in these dockets were not publicly available. As an initial matter, upon
receiving CNN’s request, the Court directed the Clerk’s Office to unseal the docket numbers and
captions associated with the seven sealed matters initially identified by CNN and to “make
publicly available promptly” on the Court’s Case Management/Electronic Case Filing (CM/ECF)
system and Public Access to Court Electronic Records (“PACER”) systems these seven
Miscellaneous matter numbers, “as well as the documents from those matters that have been
revealed in full in the Starr Report.” Order, dated Feb. 12, 2018 (“Feb. 12, 2018 Order”) at 3,
ECF No. 3. At the Court’s request, the Department of Justice (“DOJ”) promptly examined all
eleven dockets and provided its views on whether the material in these eleven dockets may be
unsealed. See DOJ Resp. CNN’s Pet. Unseal (“DOJ Resp.”) at 1, ECF No. 20. For the reasons
discussed below, the eleven dockets at issue will be largely unsealed and made publicly
accessible on CM/ECF and PACER.
I. BACKGROUND
Petitioner CNN submitted a request, dated February 9, 2018, to unseal certain
Miscellaneous matters arising from Independent Counsel Starr’s 1998 investigation into then-
President Clinton. See CNN/Polantz Unsealing Request at 1. Specifically, CNN averred that
“these matters were widely covered by the media at the time,” id., and that “basic information”
about some of these matters had been “made public through the Independent Counsel’s
publication” of his final report to the U.S. House of Representatives, id. at 3. See also generally
Starr Report. In its request, CNN identified eight Miscellaneous matters, which it described as
follows:
4
98-mc-095 Bruce Lindsey testimony
98-mc-096 Sidney Blumenthal testimony
98-mc-097 Nancy Hernreich testimony
98-mc-148 Secret Service Testimony
98-mc-202 White House documents
98-mc-267 Presidential subpoena
98-mc-278 Lanny Breuer testimony
Unknown Terry Lenzner and Investigative Group Intl., Inc. subpoena.
CNN/Polantz Unsealing Request at 1. 5
The first seven of these docket numbers are referenced in the Starr Report, and some, but
not all, of the documents entered on the dockets for these matters appear in full or are
summarized in the appendices to the Starr Report. See Starr Report, Vol. II at 183–200; Feb. 12,
2018 Order at 2. This disclosure was permitted by virtue of the D.C. Circuit’s authorization for
the Independent Counsel to disclose to the House of Representatives “all grand jury material that
the independent counsel deems necessary to comply with the requirements of [28 U.S.C.]
§ 595(c),” based upon the “‘Ex Parte Motion for Approval of Disclosure of Matters Occurring
Before a Grand Jury’ filed by Independent Counsel [ ] Starr on July 2, 1998,” which ex parte
motion remains sealed with the D.C. Circuit. Order, In re Madison Guar. Sav. & Loan Ass’n,
Special Div. No. 94-1 (D.C. Cir. filed July 7, 1998), reprinted in Starr Report, Vol. II at 10.
These docket numbers were previously sealed and therefore “remain[ed] an opaque
SEALED vs. SEALED,” CNN/Polantz Unsealing Request at 1, and did not appear on the
Federal Judiciary’s electronic public access service, PACER. Upon receiving CNN’s request,
the Court directed the Clerk’s Office to unseal the docket numbers and captions associated with
the seven identified sealed matters and to “make publicly available promptly on the Court’s Case
5
The Miscellaneous case number for the matter described as “Unknown Terry Lenzner and Investigative
Group Intl., Inc. subpoena” was not identified in the Starr Report, but the litigation history of that matter was
summarized in an Appendix. See Starr Report, Vol. II at 199–200. The Clerk of the Court, through its review of
these files, later identified Misc. No. 98-77 as the corresponding case number. See Minute Order (Mar. 12, 2018).
5
Management/Electronic Case Filing (CM/ECF) system and PACER these seven Miscellaneous
matter numbers, as well as the documents from those matters that have been revealed in full in
the Starr Report.” Feb. 12, 2018 Order at 3. In addition, DOJ was asked to review these eight
dockets to (1) provide the Court with DOJ’s “views as to whether the documents remaining
under seal in the eight Miscellaneous dockets at issue may be unsealed, (2) confirm that the
individuals, who were recipients of the grand jury subpoenas at issue or otherwise involved in
these matters, have been notified of the CNN/Polantz Request, and (3) provide in camera and ex
parte any privacy concerns regarding such individuals.” Id. at 5. DOJ was granted access to the
sealed records at issue to facilitate its review. See Order, dated Feb. 14, 2018, ECF No. 5.
Former President Clinton intervened as of right in order to represent his interests, see
Minute Order (dated Feb. 16, 2018), and provided, on February 23, 2018, his views on whether
the dockets at issue may be unsealed. See generally Status Report of Former President Clinton
(“Clinton Status Report”), ECF No. 15. The former President stated his “belie[f] that a great
deal of the material at issue has already been made public almost twenty years ago in the 211-
page Starr Report, the two-volume, 3183-page Appendices to the Starr Report, and the three-
volume, 4610-page Supplemental Materials to the Starr Report,” but that “there may be in the
sealed dockets material that is still appropriately protected by Rule 6(e) of the Federal Rules of
Criminal Procedure.” Id. at 1–2.
Notably, former President Clinton also identified three additional sealed dockets, “closely
related to those identified by Cable News Network,” which “should now be unsealed.” Id. at 2.
These dockets—Misc. No. 98-55, Misc. No. 98-177, and Misc. No. 98-228—“contain materials
relating to litigation between then-President Clinton and the OIC concerning improper
disclosures (‘leaks’) by the OIC of grand jury material protected by Rule 6(e).” Id. at 3. DOJ
6
was, accordingly, directed to include these three dockets in its review. See Minute Order (Feb.
23, 2018). CNN agreed with unsealing these three dockets, in part because disclosure “would
further satisfy the substantial public interest in learning more about what led to the impeachment
proceedings against President Clinton” and because the OIC “no longer exists and its 1998
investigation has long since concluded.” CNN Resp. to Status Report of Former President
Clinton (“CNN Resp. Status Report”) at 2–3, ECF No. 16.
Former President Clinton also proposed a process by which review of the sealed
materials could occur, stating that “it would be appropriate for [DOJ] to notify [former President
Clinton] of any putatively protected Rule 6(e) materials that affect [the former President], and to
allow counsel to review these materials pursuant to appropriate confidentiality protections (e.g.,
a non-disclosure agreement). [Former President Clinton] will then be in a position to give the
Court knowledgeable notice (in a sealed pleading, as appropriate) of its views.” Clinton Status
Report at 2. With the concurrence of DOJ, this procedure has been adopted: on March 15, 2018,
DOJ sought and was granted permission to disclose certain sealed materials to counsel for former
President Clinton “in order to assist government counsel in evaluating whether particular
information—currently sealed pursuant to Federal Rule of Criminal Procedure 6(e)—remains
privileged and protected by grand jury secrecy.” Gov’t Counsel’s Mot. Allow Counsel for
President Clinton Access to Sealed Materials at 1, ECF No. 17; see also Order, dated March 15,
2018, ECF No. 18.
Upon completion of its review of both the eight dockets identified by CNN and the three
dockets identified by former President Clinton, DOJ responded to CNN’s Petition to Unseal and
proposed particular documents within each of the eleven dockets that should be unsealed in full
or only with redactions, or that should remain under seal. DOJ Resp. at 4–9. DOJ explained
7
that, in its view, any proposed unsealing should be limited to information already disclosed in the
Starr Report—reasoning that grand jury secrecy had been waived—but averred that information
not discussed in the Starr Report should remain under seal. Id. Further, DOJ posited that, “[t]o
the extent Petitioner or Intervenor objects to any redactions pursuant to Criminal Rule 6(e), the
Department’s view—consistent with the text of Rule [6](e)—is that the Court lacks the authority
to unseal grand jury materials for reasons of ‘extreme public interest’ or any other reason outside
the reticulated exceptions to secrecy set forth in Rule 6(e).” Id. at 8. DOJ also stated that
unsealing could be denied “based on the fact that the events underlying the grand jury
proceedings are relatively recent and concern living individuals.” Id. at 9. 6 DOJ simultaneously
filed, ex parte and in camera, a separate submission detailing its proposed redactions and
corresponding reasoning. See generally DOJ Notice of In Camera, Ex Parte Submission, ECF
No. 21; DOJ In Camera, Ex Parte Submission (“DOJ First Subm.”), ECF No. 26.
Any interested parties were invited to respond to DOJ’s proposed action, see Minute
Order (Mar. 26, 2018). CNN was the only party to respond, requesting that the Court “release
the contents of all eleven dockets identified by CNN and President Clinton, in the redacted
format the government proposes in its ex parte submission.” CNN’s Initial Reply Supp. Pet.
Unseal (“CNN Reply”) at 2, ECF No. 22. CNN further asked that the Court “direct the
government to publicly file a redaction log” and sought “leave to file a supplemental reply in
6
The Court is cognizant of this concern regarding the privacy of living individuals and, for that reason, both
(1) required affirmative outreach by DOJ to the individuals affected by any potential unsealing to seek their views,
and (2) invited any interested party to respond to DOJ’s proposed unsealing and redactions. See Feb. 12, 2018
Order at 5; Minute Order (Mar. 26, 2018). Other than CNN, no interested party filed an objection to DOJ’s
proposals. As part of its review of these dockets, DOJ “contacted the individuals (and/or their attorneys) whose
interests are implicated by the proposed unsealing, including Mr. Lindsey, Mr. Blumenthal, Ms. Hernreich, Mr.
Breuer, and counsel for President Clinton, and none objected.” DOJ Resp. at 6 n.5. DOJ also contacted attorneys
for Terry Lenzner. See id. at 7–8; DOJ Second In Camera, Ex Parte Submission (“DOJ Supp. Sub.”) at 1–2, ECF
No. 27.
8
support of its Unsealing Request” after reviewing DOJ’s redactions. Id. 7 Intervenor former
President Clinton has lodged no objections to the redactions or unsealing proposed by DOJ.
After reviewing DOJ’s proposed redactions and the underlying documents in the eleven dockets,
the Court directed DOJ to provide additional information regarding its proposed redactions and
sealing, which DOJ provided on April 13, 2018. See DOJ Second In Camera, Ex Parte
Submission (“DOJ Supp. Subm.”) at 1–2, ECF No. 27. With that supplemental information in
mind, each of the eleven dockets at issue is addressed in turn.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 6(e) prohibits the disclosure of “matter[s] occurring
before the grand jury” and requires that “[r]ecords, orders, and subpoenas relating to grand-jury
proceedings [ ] be kept under seal to the extent and as long as necessary to prevent the
unauthorized disclosure of a matter occurring before a grand jury.” FED. R. CRIM. P. 6(e)(2)(B),
(e)(6). Even when an investigation has concluded, grand jury proceedings generally remain
secret in order to “ensure that ‘persons who are accused but exonerated by the grand jury will not
be held up to public ridicule.’” In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154
(D.C. Cir. 2007) (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)). 8
7
DOJ objects to CNN’s request for a redaction log, arguing that “a private litigant has no right to any Rule
6(e) protected information about what occurs before a grand jury” and that the petition “is not a Freedom of
Information Act (‘FOIA’) request,” DOJ Reply to CNN Resp. to DOJ’s Views on Unsealing at 1, ECF No. 23, such
that a Vaughn index, “describ[ing] the documents withheld or redacted and the FOIA exemptions invoked, and
explain[ing] why each exemption applies,” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir.
2015), is required. The Court agrees. The special process CNN has requested does not comport with grand jury
rules, and this matter is not analogous to a FOIA request.
8
The Supreme Court articulated, in United States v. Procter & Gamble Co., 356 U.S. 677 (1958), six policy
reasons for maintaining the secrecy of grand jury proceedings: “(1) To prevent the escape of those whose indictment
may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons
subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or
tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it;
(4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission
of crimes; [and] (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under
investigation, and from the expense of standing trial where there was no probability of guilt.” Id. at 681 n.6 (internal
quotation marks omitted).
9
Nevertheless, “grand jury secrecy is not unyielding when there is no secrecy left to protect.” Id.
(internal quotation marks and alteration omitted). As the D.C. Circuit has held, “when once-
secret grand jury material becomes ‘sufficiently widely known,’ it may ‘lose its character as Rule
6(e) material.’” Id. (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)).
Grand jury material may also be disclosed under various exceptions listed in Rule 6(e).
As enumerated in Rule 6(e)(3), disclosure of grand jury material, other than the grand jury’s
deliberations or any grand juror’s vote, may be made to “(i) an attorney for the government for
use in performing that attorney’s duty,” “(ii) any government personnel . . . that an attorney for
the government considers necessary to assist in performing that attorney’s duty to enforce federal
criminal law,” or “(iii) a person authorized by 18 U.S.C. § 3322.” FED. R. CRIM. P.
6(e)(3)(A)(i)–(iii). 9 In addition, an attorney for the government may “disclose any grand-jury
matter to another federal grand jury,” FED. R. CRIM. P. 6(e)(3)(C), and may also disclose “any
grand-jury matter involving foreign intelligence, counterintelligence . . . , or foreign intelligence
information . . . to any federal law enforcement, intelligence, protective, immigration, national
defense, or national security official to assist the official receiving the information in the
performance of that official’s duties,” FED. R. CRIM. P. 6(e)(3)(D). Finally, a court may
authorize disclosure, “at a time, in a manner, and subject to any other conditions that it directs,”
9
18 U.S.C. § 3322 provides that “[a] person who is privy to grand jury information” that was either
“received in the course of duty as an attorney for the government” or “disclosed under rule 6(e)(3)(A)(ii)” may
“disclose that information to an attorney for the government for use in enforcing section 951 of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 or for use in connection with any civil forfeiture
provision of Federal law.” 18 U.S.C. § 3322(a). In addition, “[u]pon motion of an attorney for the government, a
court may direct disclosure of matters occurring before a grand jury during an investigation of a banking law
violation to identified personnel of a Federal or State financial institution regulatory agency.” Id. § 3322(b)(1).
10
of grand jury material “preliminarily to or in connection with a judicial proceeding,” among
other circumstances. FED. R. CRIM. P. 6(e)(3)(E)(i). 10
Moreover, as numerous courts have recognized, a district court retains an inherent
authority to unseal and disclose grand jury material not otherwise falling within the enumerated
exceptions to Rule 6(e). See, e.g., Carlson v. United States, 837 F.3d 753, 763 (7th Cir. 2016)
(“Rule 6(e) is ‘but declaratory’ of the long-standing ‘principle’ that ‘disclosure’ of grand jury
materials is ‘committed to the discretion of the trial court.’” (quoting Pittsburgh Plate Glass Co.
v. United States, 360 U.S. 395, 399 (1959)); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997)
(“[P]ermitting departures from Rule 6(e) is fully consonant with the role of the supervising court
and will not unravel the foundations of secrecy upon which the grand jury is premised.”); In re
Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1268 (11th Cir. 1984) (“[I]t is
certain that a court’s power to order disclosure of grand jury records is not strictly confined to
instances spelled out in [Rule 6(e)].”); see also LCrR 6.1 (“Papers, orders and transcripts of
hearings subject to this Rule, or portions thereof, may be made public by the Court on its own
motion or on motion of any person upon a finding that continued secrecy is not necessary to
prevent disclosure of matters occurring before the grand jury.”). “The D.C. Circuit has not
specifically addressed the question of whether courts have inherent authority to order the release
of grand jury records in circumstances not enumerated by Rule 6(e),” In re Petition of Kutler,
10
The other enumerated circumstances for court-authorized disclosure of grand jury materials include “at the
request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that
occurred before the grand jury,” or “at the request of the government” in three circumstances: (1) “when sought by a
foreign court or prosecutor for use in an official criminal investigation”; (2) “if [the government] shows that the
matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an
appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that
law”; or (3) “if [the government] shows that the matter may disclose a violation of military criminal law under the
Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of
enforcing that law.” FED. R. CRIM. P. 6(e)(3)(E)(ii)–(v).
11
800 F. Supp. 2d 42, 47 (D.D.C. 2011), but has affirmed the district court’s exercise of this
inherent disclosure authority, see Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir. 1974)
(indicating “general agreement” with the district court’s exercise of inherent authority to disclose
grand jury material). 11
The district court’s inherent authority to disclose grand jury proceedings is apparent from
both the court’s supervisory authority over grand juries and the plain text of Rule 6(e). Grand
juries have long been recognized as “a part of the judicial process,” Cobbledick v. United States,
309 U.S. 323, 327 (1940), and “an appendage of the court,” Brown v. United States, 359 U.S. 41,
49 (1959), over which the district court exercises supervisory authority, In re Sealed Case, 877
F.2d 976, 981 (D.C. Cir. 1989); see also United States v. Williams, 504 U.S. 36, 47 (1992)
(acknowledging that the grand jury acts “under judicial auspices”); Levine v. United States, 362
U.S. 610, 617 (1960) (“The grand jury is an arm of the court . . . . The Constitution itself makes
the grand jury a part of the judicial process.” (internal quotation marks omitted)). Thus, the
“minutes and transcripts” of the grand jury are “records of the court.” United States v. Procter &
Gamble Co., 356 U.S. 677, 684–85 (1958) (Whittaker, J., concurring); see also Carlson, 837
F.3d at 758–59; Standley v. Dep’t of Justice, 835 F.2d 216, 218 (9th Cir. 1987) (“Grand jury
materials are records of the district court.”); In re Grand Jury Investigation of Cuisinarts, Inc.,
665 F.2d 24, 31 (2d Cir. 1981) (“[G]rand jury proceedings remain the records of the courts, and
courts must decide whether they should be made public.”); United States v. Penrod, 609 F.2d
1092, 1097 (4th Cir. 1979) (concluding that “grand jury minutes . . . are records of the court”).
Indeed, prior to the adoption of the Federal Rules of Criminal Procedure, the Supreme Court had
held that the release of sealed grand jury materials “rests in the sound discretion of the [trial]
11
This question is currently pending before the D.C. Circuit. See McKeever v. Sessions, No. 17-5149 (D.C.
Cir. filed June 26, 2017).
12
court” and that “disclosure is wholly proper where the ends of justice require it.” United States
v. Socony-Vacuum Oil Co., 310 U.S. 150, 233–34 (1940); see also Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 598 (1978) (“Every court has supervisory power over its own records and
files.”).
Rule 6(e) does not eliminate that authority—rather, the plain text of the Rule supports the
court’s inherent disclosure authority. The text of the Rule imposes a rule of secrecy on an
enumerated list of people, stating that, “[u]nless these rules provide otherwise,” the disclosure of
“matter[s] occurring before the grand jury” is prohibited by “a grand juror,” “an interpreter,” “a
court reporter,” “an operator of a recording device,” “a person who transcribes recorded
testimony,” “an attorney for the government,” or “a person to whom disclosure is made under
Rule 6(e)(3)(A)(ii) or (iii).” FED. R. CRIM. P. 6(e)(2)(B)(i)–(vii). 12 The district court is notably
absent from this list of the persons bound by Rule 6(e)’s prohibition on disclosure.
Nor do the “exceptions” listed in Rule 6(e)(3) and, in particular, Rule 6(e)(3)(E), impede
the court’s inherent disclosure authority. District courts are not expressly bound by Rule 6(e)(2)
and, therefore, Rule 6(e)(3)’s exceptions to that rule do not affect the court’s inherent authority.
Moreover, Rule 6(e)(3)(E) lists several circumstances in which the court may, “at a time, in a
manner, and subject to any other conditions that it directs,” authorize the disclosure of grand jury
matter. FED. R. CRIM. P. 6(e)(3)(E). While five specific examples of such situations are listed in
the Rule, see supra, note 10, this list is not exclusive. Indeed, “[t]he presence of limiting
language elsewhere in Rule 6(e),” for example, in Rule 6(e)(2)(B), “indicates that its absence in
(3)(E) is intentional.” Carlson, 837 F.3d at 764. In addition, Rule (6)(e)(3)(E) uses the word
12
Rule 6(e)(3)(A)(ii) permits the disclosure of grand jury matter to “any government personnel—including
those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government
considers necessary to assist in performing that attorney’s duty to enforce federal criminal law.” Rule 6(e)(3)(A)(iii)
permits the disclosure of grand jury matter to “a person authorized by 18 U.S.C. § 3322.” See also supra, note 9.
13
“may,” which “usually implies some degree of discretion,” United States v. Rodgers, 461 U.S.
677, 679 (1983), and also emphasizes the court’s “complete discretion over the manner of
disclosure” for the listed situations, Carlson, 837 F.3d at 765. Indeed, in recognizing that Rule
6(e)(3)(E) is permissive, not exhaustive, numerous courts have held that district courts have
inherent authority to disclose grand jury records in circumstances that are not enumerated in Rule
6(e)(3)(E). See, e.g., Carlson, 837 F.3d at 764–65; Craig, 131 F.3d at 101–03; In re Am.
Historical Ass’n, 49 F. Supp. 2d 274, 285 (S.D.N.Y. 1999) (“[A] district court’s ability to order
release of grand jury materials has never been confined only to application of the exceptions to
the secrecy rule specifically enumerated in Rule 6(e).”); In re Report & Recommendation of June
5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F.
Supp. 1219, 1229 (D.D.C. 1974), aff’d, Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974)
(permitting the disclosure of grand jury materials even when none of the enumerated exceptions
in Rule 6(e)(3)(E) applied).
The court’s inherent authority to disclose grand jury materials resembles, in many ways,
a district court’s inherent authority to hold litigants in contempt. Although judicial contempt
powers are circumscribed both by statute, see 18 U.S.C. § 401, and by the Federal Rules, see
FED. R. CRIM. P. 42, FED. R. CIV. P. 11, 37(b), the Supreme Court has long recognized that
“courts possess inherent authority to initiate contempt proceedings for disobedience to their
orders,” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987); see also Ali
v. Tolbert, 636 F.3d 622, 627 (D.C. Cir. 2011) (acknowledging that even if a litigant’s actions
were not sanctionable under Federal Rule of Civil Procedure 11, “sanctions may nonetheless be
warranted under the district court’s inherent authority”); Barry v. United States, 865 F.2d 1317,
1324 n.6 (D.C. Cir. 1989) (“[C]ourts already possess an inherent authority to punish criminal
14
contempt without additional rules or other legislative enactments.”). Similarly, in the grand jury
context, although various statutes, see, e.g., 18 U.S.C. § 3322, and the Federal Rules of Criminal
Procedure limit the disclosure of grand jury materials, those authorities do not eliminate the
court’s inherent authority to determine, in its discretion, whether to disclose such judicial record
materials. Thus, contrary to DOJ’s position, a court may invoke its “inherent supervisory
authority to order the release of grand jury materials” outside the boundaries of Rule 6(e).
Kutler, 800 F. Supp. 2d at 47.
The D.C. Circuit has yet to provide guidance to district courts exercising their inherent
authority to disclose grand jury materials outside of Rule 6(e). 13 Judges on this Court have
therefore turned to a “non-exhaustive list of factors that a court may consider when making such
an assessment,” id., outlined by the Second Circuit. These factors include:
(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.
Id. at 47–48 (quoting Craig, 131 F.3d at 106). 14 Regarding the third factor—the reason
disclosure is sought—the Second Circuit has held that “nothing ‘prohibits historical interest, on
its own, from justifying the release of grand jury material in an appropriate case.’” Id. (quoting
Craig, 131 F.3d at 105). Rather, “it is ‘entirely conceivable that in some situations historical or
13
The D.C. Circuit has stated, in dicta, that “even if there were once a common law right of access to [grand
jury] materials . . . , the common law has been supplanted by Rule 6(e)(5) and Rule 6(e)(6) of the Federal Rules of
Criminal Procedure.” In re Motions of Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir. 1998). The Circuit has not
explained, however, how a district court should proceed when confronted by a situation in which the enumerated
exceptions in Rule 6(e) do not apply.
14
These factors substantially overlap with those identified in United States v. Hubbard, 650 F.2d 293, 317–22
(D.C. Cir. 1980), but are framed to target more specifically the grand jury context.
15
public interest alone could justify the release of grand jury information.’” Id. (quoting Craig,
131 F.3d at 105).
III. DISCUSSION
In this matter, CNN seeks the unsealing of eleven previously sealed Miscellaneous
dockets, either expressly referenced, or related to dockets referenced, in the Starr Report. CNN
has objected generally to keeping any materials within these eleven dockets under seal. See
CNN Reply at 2. At the Court’s request, DOJ reviewed the dockets at issue and provided its
views on whether to unseal the dockets.
In arguing for the continued sealing of certain materials within these dockets, DOJ avers
that “the Court lacks the authority to unseal grand jury materials for reasons of ‘extreme public
interest,’ or any other reason outside the reticulated exceptions to secrecy set forth in Rule 6(e).”
DOJ Resp. at 8 (quoting CNN/Polantz Unsealing Request at 3). CNN, however, “does not share
the government’s narrow view of the Court’s authority to release grand jury materials” and notes
that DOJ’s view “has been widely rejected.” CNN Resp. at 2 n.1 (citing Carlson, 837 F.3d at
765–66; Craig, 131 F.3d 99; In re Biaggi, 478 F.2d 489 (2d Cir. 1973); In re Petition to Inspect
& Copy, 735 F.2d 1261; and Haldeman, 501 F.2d 714 (D.C. Cir. 1974)). The Court agrees with
CNN. Given the voluminous grand jury materials already disclosed in the Starr Report,
however, even under its “narrow view,” DOJ also concurs with unsealing significant portions of
these sealed dockets. Accordingly, for the reasons discussed below, CNN’s petition is granted in
large part, but certain documents within some of the dockets shall remain under seal. 15
15
DOJ correctly observes that “placeholders in some files indicate that Chief Judge Norma Holloway
Johnson on occasion received certain materials from the Office Independent Counsel and others, ex parte, for the
purpose of showing need or establishing privilege” and that “[t]he ex parte materials themselves were not included
in the files made available to counsel.” DOJ Resp. at 5 n.2. These ex parte materials are not available in the case
files or to the Court and, consequently, are not addressed in this Memorandum Opinion and accompanying order. In
16
As discussed, the Craig factors guide this analysis. Given the nature of the dockets at
issue and their connection to the same grand jury proceedings, the analysis of a particular Craig
factor is often the same for each docket. Specifically, the first factor, the identity of the party
seeking disclosure; the third factor, the reason for seeking disclosure; the fourth factor, the
specific information sought to be disclosed; the fifth factor, how long ago the grand jury
proceedings took place; and the sixth factor, the current status of the principals of the grand jury
proceedings and that of their families, are the same in each case: CNN seeks disclosure of all
documents in each listed docket pertaining to grand jury proceedings that took place two decades
ago, because disclosure “would further satisfy the substantial public interest in learning more
about what led to the impeachment proceedings against President Clinton and in better
understanding past interactions between independent prosecutors and the Executive Branch,”
CNN Resp. Status Report at 2, and “there is much to be learned from reviewing the procedures
utilized to gain compliance with a grand jury subpoena over executive branch objections, both in
proceedings before the court but also as to the pre-conflict interactions between the parties
typically included as exhibits to motions and memoranda.” CNN/Polantz Unsealing Request at
3. Similarly, the principals of the grand jury investigation and their status are the same for each
docket: these dockets arise from a grand jury investigation into former President Clinton, who
notably does not object to the disclosure of these dockets. See Clinton Status Report at 3; DOJ
Resp. at 6 n.5. These five factors weigh heavily in favor of disclosure in each matter.
Several factors, however, differ from docket to docket. These include the second,
seventh, eighth, and ninth factors: “whether the defendant to the grand jury proceeding or the
addition, in Misc. No. 98-55, Misc. No. 98-95, Misc. No. 98-148, Misc. No. 98-177, and Misc. No. 98-228, certain
documents are not in the paper folders for these dockets. If located, these records will be reviewed to determine
whether they should be made publicly available.
17
government opposes the disclosure”; “the extent to which the desired material—either
permissibly or impermissibly—has been previously made public”; “whether witnesses to the
grand jury proceedings who might be affected by disclosure are still alive”; and “the additional
need for maintaining secrecy in the particular case in question.” Craig, 131 F.3d at 106. These
four factors will be considered in turn for each docket.
A. Documents Pertaining to a Separate Judicial Misconduct Investigation
Two documents in each docket pertain to a separate judicial misconduct complaint, in
which the outside attorney named to investigate that complaint sought access, pursuant to Rule
6(e), to numerous sealed records in these dockets. The Independent Counsel in the Clinton
investigation thus filed a motion to permit the outside investigator access to certain grand jury
records, and the Court issued an order on that motion.
These two documents in each of the eleven dockets will remain under seal. Turning to
the Craig factors, DOJ opposes the disclosure of these documents because they show which
documents were involved in the misconduct investigation and, as such, are accompanied by
certain privacy interests not attendant to the other documents at issue in CNN’s request. See
DOJ Resp. at 4. In addition, 28 U.S.C. § 360(a) requires confidentiality with respect to all files
“related to” judicial misconduct investigations, including “all papers, documents, and records of
proceedings.” Further, these documents have never been made publicly available. The
additional need for secrecy is furthered by the weak connection between these documents and the
documents that are the targets of CNN’s unsealing request: in each docket, these two documents
were introduced for the purpose of allowing the outside attorney to investigate the separate
claims of judicial misconduct and offered no factual details or legal conclusions about the OIC
18
investigation. Thus, the two documents in each matter that pertain to the separate judicial
misconduct investigation shall remain under seal. 16
B. Misc. No. 98-55, Misc. No. 98-177, and Misc. No. 98-228
Three matters—Misc. No. 98-55, Misc. No. 98-177, and Misc. No. 98-228—brought by
former President William Jefferson Clinton, Bruce R. Lindsey, and Sidney Blumenthal against
the OIC, concern “litigation between then-President Clinton and the OIC concerning improper
disclosures (‘leaks’) by the OIC of grand jury material protected by Rule 6(e).” Clinton Status
Report at 3. The petitioner in each of these cases requested, between February 9, 1998, and June
16, 1998, that the Court issue an order to show cause why the OIC should not be held in
contempt for violating Rule 6(e), which prohibits prosecutors, grand jurors, and certain other
individuals other than witnesses from disclosing “matter[s] occurring before the grand jury.”
FED. R. CRIM. P. 6(e)(2); see also Clinton Status Report at 2 n.4. By virtue of those prior leaks to
the media, much of the information in these three dockets otherwise protected under Rule 6(e)
was publicly disclosed. See Clinton Status Report at 2 n.4.
These three dockets were consolidated by the Court, which issued a single Order to Show
Cause dated June 19, 1998, granting all three motions. See Misc. No. 98-55, ECF No. 30; Misc.
No. 98-177, ECF No. 16; Misc. No. 98-228, ECF No. 2. The vast majority of the documents in
these matters have already been unsealed by court orders in 1999 or were not filed under seal.
See Order, dated Jan. 4, 1999, Misc. No. 98-55, ECF No. 88; Order, dated Jan. 25, 1999, Misc.
No. 98-55, ECF No. 95; Order, dated Jan. 4, 1999, Misc. No. 98-177, ECF No. 34; Order, dated
16
These documents that will remain under seal are: in Misc. No. 98-55, documents 118 and 119; in Misc. No.
98-77, documents 8 and 9; in Misc. No. 98-95, documents 84 and 85; in Misc. No. 98-96, documents 41 and 42; in
Misc. No. 98-97, documents 30 and 31; in Misc. No. 98-148, documents 43 and 44; in Misc. No. 98-177, document
50 and the docket entry of May 22, 2000; in Misc. No. 98-202, documents 7 and 8; in Misc. No. 98-228, document
33 and the docket entry of May 22, 2000; and in Misc. No. 98-278, documents 23 and 24.
19
Jan. 25, 1999, Misc. No. 98-177, ECF No. 35; Order, dated Jan. 4, 1999, Misc. No. 98-228, ECF
No. 20; Order, dated Jan. 25, 1999, Misc. No. 98-228, ECF No. 21. The dockets, however,
remained under seal, thus preventing public access to these already unsealed materials. In
addition, several documents in each docket—including the Court’s June 19, 1998 Order to Show
Cause resolving each petitioner’s motion for an order to show cause why the OIC should not be
held in contempt for improperly disclosing grand jury material—remain under seal.
The Craig factors weigh in favor of unsealing the documents in these matters, except for
the two documents in each docket related to the judicial misconduct investigation and slight
redactions to two other documents. 17 As for previous disclosure, this factor weighs in favor of
unsealing because “[m]any of the documents in these files are unsealed” and “the underlying
information and testimony was included in the [Starr Report], its Appendices and Supplemental
Materials.” DOJ Resp. at 8. In addition, most of these files do not pertain to particular witnesses
appearing before the grand jury. Some redactions are warranted, however, to prevent the
disclosure of individuals who may or may not have appeared before the grand jury. Such
information remains protected by Rule 6(e), and accordingly, one document in Misc. No. 98-55,
in which the OIC was proposing redactions to a certain document in Misc. No. 98-177, as well as
the one document in Misc. No. 98-177 to which OIC proposed redactions, shall be redacted to
prevent the disclosure of individuals who may or may not have appeared before the grand jury. 18
Finally, the additional need for maintaining the secrecy of these dockets is low, given that
“the grand jury investigation at issue” in these dockets “concluded nearly two decades ago” and
“the subject matter of this litigation did not involve consideration of secret grand jury materials
17
The only party to object to a full unsealing of this docket is DOJ, which objects to the disclosure of the two
documents related to the judicial misconduct investigation described above, supra Part III.A, and the Court agrees
that these two documents shall remain under seal.
18
These documents include Misc. No. 98-55, ECF No. 60, and Misc. No. 98-177, ECF No. 9.
20
but rather the improper disclosure of such information on the public record.” Clinton Status
Report at 3–4. Thus, the Craig factors weigh in favor of unsealing these three dockets with the
exceptions described above and, accordingly, all documents still under seal in Misc. No. 98-55,
Misc. No. 98-177, Misc. No. 98-228, except for the two filings in each matter pertaining to the
separate judicial misconduct investigation and the two redacted documents discussed above,
shall be unsealed. The two excepted documents pertaining to the misconduct investigation shall
remain fully under seal. With the unsealing of these dockets, the previously unsealed materials
will also now be publicly accessible on CM/ECF and PACER.
C. Misc. No. 98-77
This docket concerns a subpoena issued to Terry Lenzner and his company, Investigative
Group International, Inc. (“IGI”). See Starr Report, Vol. II at 199–200. 19 “After hearing reports
that Mr. Lenzner and IGI were researching the private lives of career prosecutors,” the OIC
issued a subpoena to “try to determine whether this was true and, if so, whether this was part of
[a] scheme to obstruct the OIC’s investigation.” Id. at 199. Lawyers for former President
Clinton moved to quash the grand jury subpoena issued to Mr. Lenzner and IGI, claiming
“attorney-client privilege and work product protection.” Id. Mr. Lenzner then “appear[ed],
provide[d] a privilege log of documents, and refuse[d] to reveal the general subject matter of his
retention.” Id. The OIC opposed the motion to quash on the grounds that “the attorney-client
privilege does not protect the general subject matter of retention, amount of fees, or identity of
fee payer.” Id. Ultimately, Mr. Lenzner was ordered to “provide all fee information to the grand
jury,” but “the general subject matter of his retention [wa]s protected by the attorney-client
19
Although the Starr Report does not identify the docket number associated with the “Terry Lenzner
Subpoena” matter, the Clerk’s Office, in its review of the materials at issue in this matter, discovered that this matter
was docketed as Misc. No. 98-77.
21
privilege.” Id. at 200. Neither this docket number nor any of the nine documents it contains has
previously been unsealed, including the Memorandum Opinion issued on July 29, 1998, granting
former President Clinton’s motion to quash.
The Craig factors again counsel in favor of disclosure. As for the second and eighth
factors, both DOJ and counsel for Mr. Lenzner, the witness at issue in this docket, agree that this
matter may be unsealed, with certain redactions to protect Mr. Lenzner’s ongoing privacy
interests. 20 DOJ Supp. Subm. at 1–6. Former President Clinton concurs in Mr. Lenzner’s
position. Id. at 2. Although the Starr Report contains a detailed history of the litigation
surrounding the subpoena issued to Mr. Lenzner, see Starr Report, Vol. II at 199–200, the Starr
Report does not include details regarding Mr. Lenzner’s testimony, the information the OIC had
hoped to elicit from Mr. Lenzner, and other details surrounding Mr. Lenzner’s employment.
Certain redactions to the documents in this matter are therefore warranted, and certain exhibits,
including a copy of the grand jury subpoena issued to Mr. Lenzner, transcripts of grand jury
proceedings, and other records produced to the grand jury, shall remain under seal to protect the
disclosure of specific matters occurring before the grand jury and to respect Mr. Lenzner’s
ongoing privacy interests.
Regarding the seventh and ninth Craig factors, no part of this docket has previously been
made publicly available, although a description of the litigation history appears in the Starr
Report. See id. Thus, an entire eleven-page judicial opinion issued on July 29, 1998, remains
under seal. While the continued secrecy of judicial opinions regarding grand jury matters is
necessary to protect the integrity of an ongoing investigation, that need for secrecy decreases
once the investigation ends and continues to diminish over time. The public has an overarching
20
DOJ objected to the disclosure of the two documents related to the judicial misconduct investigation
analyzed above, supra Part III.A, and the Court agrees that these two documents shall remain under seal.
22
interest in the accessibility of judicial opinions. As the Supreme Court has recognized, judicial
opinions are “valuable to the legal community as a whole” and “are not merely the property of
private litigants.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994).
Indeed, “[a] court’s decrees, its judgments, its orders, are the quintessential business of the
public’s institutions.” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996).
The “presumption in favor of public access to judicial proceedings” is therefore “especially
strong” when examining judicial opinions, id. (quoting Johnson v. Greater Se. Cmty. Hosp.
Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)), and the additional need for maintaining the
secrecy of this judicial opinion is low, especially in light of the extensive public discussion of
this matter in the Starr Report. Thus, given the public interest in judicial opinions and the lack of
objections from the interested parties, the July 29, 1998 Memorandum Opinion shall be unsealed
with one redaction to protect the timing of Mr. Lenzner’s employment, which remains protected
under Rule 6(e) and does not appear to be significant in the reasoning laid out in the July 29,
1998, Memorandum Opinion.
Accordingly, because the Craig factors weigh in favor of disclosure and because the
interested parties do not object to disclosure, this docket and its component documents shall be
unsealed, with the exception of the two documents related to the judicial misconduct
investigation, which shall remain fully under seal, and the redactions discussed above to protect
information pertaining to matters occurring before the grand jury and Mr. Lenzner’s privacy.
D. Misc. No. 98-95, Misc. No. 98-96, Misc. No. 98-97, and Misc. No. 98-278
These four matters—Misc. No. 98-95, Misc. No. 98-96, Misc. No. 98-97, and Misc. No.
98-278—involve the grand jury testimony of Bruce Lindsey, former Deputy White House
Counsel; Sidney Blumenthal, former Assistant to the President; Nancy Hernreich, former Deputy
Assistant to the President and Director of Oval Office Operations; and Lanny Breuer, former
23
Special Counsel to the President, respectively. See Starr Report, Vol. I at vi; id., Vol. II at 185–
93. The first three matters—Misc. No. 98-95, Misc. No. 98-96, and Misc. No. 98-97—were
initiated by the OIC, which moved to compel Mr. Lindsey, Mr. Blumenthal, and Ms. Hernreich
to testify before the grand jury regarding matters for which the witnesses had previously asserted
executive privilege, attorney-client privilege, or work-product protection. See id., Vol. II at 187.
These matters were eventually consolidated and, after a hearing on the issue of executive
privilege, resolved in a single Memorandum Opinion, dated May 1, 1998, granting the motions
to compel as to Mr. Lindsey and Mr. Blumenthal, id. at 188–89, while the White House dropped
its assertions of privilege by Ms. Hernreich, id. at 187. The fourth matter in this set, Misc. No.
98-278, was initiated by Mr. Breuer, who sought an emergency stay of a subpoena requiring him
to testify before the grand jury. Id. at 191–92. Mr. Breuer’s motion for a stay was denied and
the OIC’s motion to compel his testimony was later granted in a Memorandum Order dated
August 11, 1998. Id.
The procedural history of each of these cases is well documented in the Starr Report, id.
at 185–93, and the White House’s Opposition to the Independent Counsel’s Motions to Compel
Bruce R. Lindsey and Sidney Blumenthal to Testify Concerning Conversations Protected by the
Attorney-Client, Presidential Communications, and Work Product Privileges, including exhibits,
was reprinted in full in an Appendix to the Starr Report. See id., Vol. V at 2025–2138. In
addition, several documents in each matter were unsealed by court order during the pendency of
that litigation. Specifically:
• Of the eighty-five documents in Misc. No. 98-95, nine are already unsealed by virtue of
either their inclusion in the Starr Report, see Misc. No. 98-95, ECF No. 9, reprinted in
24
Starr Report, Vol. V at 2025–2138, or a 1998 court order directing their unsealing, see
id., ECF No. 72;
• Of the forty-four documents in Misc. No. 98-96, four are already unsealed by a 1998
court order, see Misc. No. 98-96, ECF No. 35;
• Of the thirty-one documents in Misc. No. 98-97, four are already unsealed by a 1998
court order, see Misc. No. 98-97, ECF No. 26; and
• Of the twenty-nine documents in Misc. No. 98-278, eighteen are already unsealed,
because they were included in the Starr Report, see Misc. No. 98-278, ECF No. 10; a
1998 court order directed their unsealing, see Misc. No. 98-278, ECF Nos. 17, 22; or they
were not filed under seal.
Notably, the August 11, 1998, Memorandum Order in Misc. No. 98-278, granting the
OIC’s motion to compel Mr. Breuer’s testimony, was reprinted in full in the Starr Report, see
Starr Report, Vol. VI at 2477–87, and a redacted version of the consolidated May 1, 1998,
Memorandum Opinion granting the OIC’s motions to compel Mr. Lindsey’s and Mr.
Blumenthal’s testimony has been published, with approximately thirty-six paragraphs redacted.
See generally In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998).
Given this previous disclosure, and the absence of objections from any of the subjects of
these dockets, these four matters will be unsealed. DOJ is the only party to object to the full
disclosure of these dockets. See DOJ First Subm. at 3; DOJ Supp. Subm. at 6. DOJ proposes
redacting one sentence from the consolidated May 1, 1998, Memorandum Opinion in Misc. No.
98-95, Misc. No. 98-96, and Misc. No. 98-97 to protect information about the number of White
House employees who were interviewed by the OIC or who appeared as witnesses before the
25
grand jury. See DOJ Resp. at 5–6; DOJ First Subm. at 3. 21 The Starr Report, however, includes
the August 11, 1998, Memorandum Order from Misc. No. 98-278, stating that:
OIC has issued 23 subpoenas duces tecum to the White House since the
beginning of its investigation and has issued one to President Clinton
individually. Declaration of Julie A. Corcoran ¶ 4. In addition, the OIC
interviewed eighty current or former White House employees during its
investigation and thirty-five current or former White House employees have
testified before the grand jury. Declaration of Patrick F. Fallon, Jr. ¶¶ 4–5.
Starr Report, Vol. VI at 2485. DOJ contends that, because the numbers made public in the Starr
Report differ from the numbers cited more than three months earlier in the consolidated May 1,
1998, Memorandum Opinion, unsealing this sentence in the Memorandum Opinion would reveal
the progress of the investigation as of May 1, 1998. DOJ Supp. Subm. at 6. This argument is
unpersuasive. In the span of a multi-year investigation, it is only logical that the number of
witnesses interviewed or called to testify before the grand jury would increase. Given that the
Starr Report has already disclosed information about the number of White House employees who
were interviewed by the OIC or who appeared before the grand jury, the continued sealing of
such information is unwarranted.
As to the remaining Craig factors, the extent of previous public access to these four
Miscellaneous matters has been significant since the Starr Report contains detailed descriptions
of these matters, a full copy of the White House’s opposition to the motions to compel testimony,
and a complete copy of the August 11, 1998, Memorandum Order in Misc. No. 98-278. See
Starr Report, Vol. II at 185–93; id., Vol. V at 2025–138; id., Vol. VI at 2477–87.
Regarding the eighth Craig factor—whether witnesses to the grand jury proceedings who
might be affected by disclosure are still alive—as part of its review of these dockets, DOJ
21
DOJ also objected to the disclosure of the two documents related to the judicial misconduct investigation
analyzed above, supra Part III.A, and the Court agrees that these two documents shall remain under seal.
26
“contacted the individuals (and/or their attorneys) whose interests are implicated by the proposed
unsealing, including Mr. Lindsey, Mr. Blumenthal, Ms. Hernreich, Mr. Breuer, and counsel for
President Clinton, and none objected.” DOJ Resp. at 6 n.5. The additional need for maintaining
the secrecy of this matter is therefore low, and accordingly, Misc. No. 98-95, Misc. No. 98-96,
Misc. No. 98-97, and Misc. No. 98-278 shall be unsealed, except for the two documents in each
docket that pertain to the separate judicial misconduct investigation, which two documents shall
remain fully under seal. Thus, the May 1, 1998, Memorandum Opinion, which to date has been
available only in highly redacted form, will be unsealed in full.
E. Misc. No. 98-148
The matter docketed at Misc. No. 98-148 concerns “Secret Service Testimony” given
before the grand jury. Starr Report, Vol. II at 197. On March 23, 1998, the OIC deposed former
Secret Service General Counsel John Kelleher, who asserted the “protection function” privilege
and the governmental attorney-client privilege. Id. at 194. The OIC later initiated a judicial
proceeding to compel the testimony of various Secret Service personnel over these claims of
privilege. Id. Five days after the Court ruled that there is no “protective function” privilege for
Secret Service personnel and ordered the OIC to provide “a need showing to overcome
governmental attorney-client privilege as to John Kelleher,” id. at 195, the OIC withdrew its
request that Mr. Kelleher testify before the grand jury, id. The district court’s decision was
affirmed on appeal, id. at 196, and, a week later, six Secret Service personnel received subpoenas
to testify before the grand jury, id. As with the dockets discussed above, extensive details of this
litigation appear in the Starr Report. Id. at 193–97. In addition, nine of the forty-seven
documents in this matter were filed in redacted form, not under seal.
This docket will be unsealed, with certain redactions as necessary to protect ongoing
privacy interests. DOJ is the only party to object to full disclosure of this matter. Specifically,
27
DOJ objects to the disclosure of the names and testimony of two Secret Service employees who
testified before the grand jury, since those two names are not included in the Starr Report or in
any of the documents made public in this matter. See DOJ Resp. at 6–7. 22 These employees’
identities thus remain protected by Rule 6(e) and, given the strength of their privacy interests and
the possibility of prejudice to these unnamed individuals, their names shall be redacted from the
documents being unsealed.
DOJ also urges that further redactions are warranted because “one Secret Service lawyer
litigated the governmental attorney client privilege in response to a grand jury subpoena,” and
“[n]o testimony from that attorney was included” in the Starr Report. DOJ Resp. at 7. The Starr
Report reveals that this lawyer is John Kelleher, former General Counsel of the Secret Service,
who “assert[ed] the ‘protection function’ privilege and the governmental attorney-client
privilege.” Starr Report, Vol. II at 194. DOJ proposes additional redactions to certain
documents to protect information about Mr. Kelleher’s deposition testimony, including the
substance of that testimony and citations to the deposition transcript, which information was not
discussed in the Starr Report. See DOJ Resp. at 7. While deposition testimony ordinarily might
not be considered a “matter occurring before the grand jury,” FED. R. CRIM. P. 6(e)(2)(B), the
parties had agreed that Mr. Kelleher’s deposition would be taken in lieu of live testimony before
the grand jury and that his deposition testimony and the evidence received in the deposition
would constitute grand jury material for the purposes of Rule 6(e). As part of its review of these
matters, DOJ confirmed with Mr. Kelleher that his deposition was taken in lieu of live testimony
before the grand jury. See DOJ Supp. Subm. at 7 & n.3. Accordingly, references to Mr.
22
DOJ also objects to the disclosure of two documents in this matter that pertain to the same judicial
misconduct investigation analyzed above, Part III.A, supra, and the Court agrees that these two documents shall
remain under seal.
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Kelleher’s deposition and the substance of that testimony are protected by Rule 6(e), and
appropriate redactions shall be made to prevent the disclosure of that information.
Regarding previous disclosure, nine documents in this matter were publicly filed,
including the OIC’s motion to compel Secret Service personnel to testify before the grand jury
regarding matters for which they had previously asserted privilege, Misc. No. 98-148, ECF No.
6, and DOJ’s response in opposition to that motion to compel, id., ECF No. 7. These publicly
filed documents included declarations from former Directors of the Secret Service detailing
Secret Service training procedures, methods of protection, the positioning of Secret Service
officers, simulations run by Secret Service, and other details of methods and practices, including
photographs identifying the placement of Secret Service officers around the President. See DOJ
Opp’n OIC Mot. Compel, Ex. 1, Declaration of Lewis C. Merletti, Misc. No. 98-148, ECF No. 7
at 47–101; id., Ex. 3, Declaration of John W. Magaw, Misc. No. 98-148, ECF No. 7 at 102–09;
id., Ex. 4, Declaration of Eljay B. Bowron, Misc. No. 98-148, ECF No. 7 at 110–17. In addition,
many details about the history of this proceeding are recounted in the Starr Report. Starr Report,
Vol. II at 193–97. Thus, given this previous public disclosure, the need to maintain the secrecy
of this docket is low and the Craig factors weigh in favor of unsealing. Accordingly, the thirty-
eight documents remaining under seal in Misc. No. 98-148, shall be unsealed with the redactions
noted above.
F. Misc. No. 98-202
This matter, Misc. No. 98-202, concerns the OIC’s “motion to compel the White House
to comply with grand jury subpoenas for President Clinton’s meeting records and phone logs.”
Id. at 197. As described in the Starr Report, “[t]he White House had been redacting such
documents on relevancy grounds and refusing to provide phone logs unless the OIC gave them a
list of all persons in which the grand jury was interested.” Id. The White House opposed this
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motion, while “tr[ying] to ‘reserve[ ] the right to assert executive privilege over the material.’”
Id. The OIC’s motion was eventually granted in a Memorandum Order issued on June 26, 1998.
Id. at 198. None of the eight documents on this docket, including the June 26, 1998,
Memorandum Order, has previously been unsealed.
Despite the lack of previous public access to these records, the Craig factors again weigh
in favor of unsealing this matter with certain redactions as necessary to protect information still
covered by Rule 6(e). Many details about the document subpoenas at issue were included in the
Starr Report. Nevertheless, DOJ—the only objecting party—contends that certain information
pertaining to the subpoenas ought to be redacted. Specifically, DOJ avers that although the Starr
Report mentions certain documents within the scope of subpoena D1248, including “presidential
call log[s],” a “telephone memorandum,” “diarist schedule notes,” and “daynotes,” id., Vol. V at
1633, certain other types of documents that fell within the scope of subpoena D1248 were not
mentioned in the Report. DOJ First Subm. at 3–5. Given the details given in the Starr Report
about this subpoena, however, and the fact that this subpoena was issued in connection with an
investigation that ended nearly two decades ago, the need for maintaining the secrecy of other
types of documents demanded by this subpoena is low. The only information that remains
protected by Rule 6(e) is the information associated with a second document subpoena, which
subpoena was not identified by number in the Starr Report. Thus, certain redactions will be
made to protect the number of, and specific information targeted by, this subpoena, which is still
protected by Rule 6(e). 23
23
DOJ also objects to the disclosure of the two documents in this matter that pertain to the judicial
misconduct investigation discussed above, Part III.A, supra, and the Court agrees that these two documents shall
remain under seal.
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As for the remaining Craig factors, no objections other than the request for redactions
from DOJ have been lodged. This docket pertains to subpoenas to the White House for
document production and, accordingly, witnesses are unlikely to be prejudiced by disclosure.
Further, for the reasons detailed supra, Part III.C, the overarching interest in the accessibility of
judicial opinions militates strongly in favor of unsealing the June 26, 1998, Memorandum Order
and the legal briefing underlying the judicial record. Finally, as discussed above, the need for
maintaining secrecy is low given the amount of previous disclosure regarding the substance of
this docket and the scope of the subpoenas at issue. Thus, this matter shall be unsealed with the
aforementioned redactions.
G. Misc. No. 98-267
This matter, Misc. No. 98-267, concerns a grand jury subpoena issued to former
President Clinton. Starr Report, Vol. II at 198–99. Former President Clinton moved for a
continuance extending the time within which he could decide whether to testify or oppose the
subpoena, and a hearing was held on this motion. Id. at 199. After negotiations between David
Kendall, former President Clinton’s private attorney, and Robert Bittman, Deputy Independent
Counsel, former President Clinton agreed to testify before the grand jury and withdrew his
motion for a continuance. Id. at 198–99. Both former President Clinton’s motion for a
continuance and the transcript from the hearing on the motion were reprinted in full in the Starr
Report. Id., Vol. VI at 2279–2365; id., Vol. VI at 2369–2403.
Given the nearly full public disclosure of this entire docket, the Craig factors decisively
favor unsealing. The only document remaining under seal is former President Clinton’s
withdrawal of his motion for a continuance. Importantly, counsel for President Clinton—the
witness at issue in this matter—does not object to the unsealing of this docket. DOJ Resp. at 7.
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Moreover, the need to maintain the secrecy of this matter is nullified in the face of the docket’s
near-complete disclosure in the Starr Report. Thus, this docket shall be unsealed in its entirety.
IV. CONCLUSION
DOJ’s prompt attention to this matter and diligence in reviewing the files requested for
unsealing is greatly appreciated. For the foregoing reasons, CNN’s petition is largely granted
and the eleven Miscellaneous dockets at issue—Misc. No. 98-55, Misc. No. 98-77, Misc. No. 98-
95, Misc. No. 98-96, Misc. No. 98-97, Misc. No. 98-148, Misc. No. 98-177, Misc. No. 98-202,
Misc. No. 98-228, Misc. No. 98-267, and Misc. No. 98-278—shall be unsealed in the manner
described above and made publicly accessible on the Court’s CM/ECF and PACER systems.
This Memorandum Opinion unseals certain material that DOJ requested to remain under
seal. Consequently, the unsealing contemplated by this Memorandum Opinion shall be stayed
for a short period of three days, until April 19, 2018, at 12:00 p.m., for DOJ to notify the Court
whether it intends to pursue an appeal of the proposed unsealing.
An appropriate Order accompanies this Memorandum Opinion.
Date: April 16, 2018
__________________________
BERYL A. HOWELL
Chief Judge
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