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. No. 18-0019 (BAH)
DOCKETS RELATED TO THE
INDEPENDENT COUNSEL’S 1998 Chief Judge Beryl A. Howell
INVESTIGATION OF PRESIDENT
CLINTON
MEMORANDUM AND ORDER
Cable News Network, Inc. (“CNN”) and its journalist Katelyn Polantz have requested,
via letter, dated February 9, 2018, that eight sealed Miscellaneous matters arising from
Independent Counsel Kenneth W. Starr’s investigation in 1998 of then-President William
Jefferson Clinton “be unsealed and made public.” CNN/Polantz Request to Unseal Dockets
Related to the Independent Counsel’s 1998 Investigation of President Clinton (“CNN/Polantz
Unsealing Request”) at 1, ECF No. 1. As CNN correctly points out, each of these dockets
“remains an opaque SEALED vs. SEALED.” Id. Indeed, these docket numbers do not appear
on the Federal Judiciary’s electronic public access service, Public Access to Court Electronic
Records (PACER), because they are being treated as sealed dockets with sealed docket entries.
The Miscellaneous dockets at issue are described by CNN as follows:
1. 98-mc-095 Bruce Lindsey testimony
2. 98-mc-096 Sidney Blumenthal testimony
3. 98-mc-097 Nancy Hernreich testimony
4. 98-mc-148 Secret Service Testimony
5. 98-mc-202 White House documents
6. 98-mc-267 Presidential subpoena
7. 98-mc-278 Lanny Breuer testimony
8. Unknown Terry Lenzner and Investigative Group Intl., Inc. subpoena.
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Id. at 1. 1
The CNN/Polantz Unsealing Request contends that the unsealing of these Miscellaneous
dockets, “as well as all of the contents therein,” id. at 4, is appropriate because (1) “[a]ll of these
matters were widely covered by the media at the time,” id. at 1; (2) these matters, “except for the
Presidential subpoena matter, resulted in a myriad of judicial rulings by this Court, the D.C.
Circuit, and/or the Supreme Court,” id., with information from these matters “published in great
detail in [ ] judicial opinions,” id. at 2; (3) “[t]he identity of the witness or entity at the center of
these sealed cases, as well as a few of the filings from them, were published by the Independent
Counsel in 1998 in an appendix to his report to the House of Representatives,” id.; (4) since
these dockets “appear to relate only to witnesses and entities [sic] compliance with grand jury
subpoenas,” they “likely do not contain the resulting core Rule 6(e) grand jury material,” id. at 3;
and, finally, (5) “[g]iven that the present administration faces the possibility of compelled
presidential testimony and the application of various privileges, there is a keen public interest in
learning more about how those interactions took place during the 1998 clash between an
independent prosecutorial body and the executive branch,” id.
Seven of the eight Miscellaneous docket numbers at issue are referenced in the report
submitted to the House of Representatives by Independent Counsel Starr, see 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). In addition, some, but not all,
1
The Miscellaneous case number for the matter described as “Unknown—Terry Lenzner and Investigative
Group Intl., Inc. subpoena” is not identified in the Starr Report, although the litigation history of this matter is
summarized in an appendix. See 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. II at 183–200.
2
of the documents entered on the dockets for these matters appear in full or are summarized in the
appendices to the Starr Report. The D.C. Circuit authorized 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 “ʻEx 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. See
Order, In re Madison Guaranty Savings & Loan Ass’n, Special Div. No. 94-1 (D.C. Cir. filed
July 7, 1998), reprinted in Starr Report, Vol. II at 10.
Consequently, the docket numbers for seven of the eight Miscellaneous matters at issue
and any documents from those matters revealed in full in the Starr Report have already been
unsealed and should have been made publicly available. See Starr Report, App. Vol. II, at 193
and 197–99 (disclosing Miscellaneous matter numbers 98-095, 98-096, 98-097, 98-148, 98-202,
98-267, and 98-278). Apparently, after issuance of the Starr Report, no specific direction was
provided to the Clerk’s Office as to which documents included in the Starr Report were to be
disclosed, and the Clerk’s Office rightfully carefully maintains the confidentiality of sealed
matters unless expressly directed to unseal records. The Clerk’s Office is therefore now ordered
to make publicly available promptly on the Court’s Case 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, which
Miscellaneous matter numbers and corresponding unsealed documents are listed in the
attachment to this Order.
In addition to the records released pursuant to the D.C. Circuit’s July 7, 1998 order,
further examination of the dockets for seven of the eight Miscellaneous matters at issue reveals
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that, in five of those cases—Misc. No. 98-95, Misc. No. 98-96, Misc. No. 98-97, Misc. No. 98-
148, and Misc. No. 98-278—then-Chief Judge Norma Holloway Johnson previously entered
orders unsealing, in full or in part, certain documents, while other documents filed in these
matters were never placed under seal. For example, then-Chief Judge Johnson issued public
orders in these five cases unsealing certain documents in redacted form. The Clerk’s Office is
therefore ordered to make publicly available promptly on the Court’s CM/ECF system and
PACER those previously unsealed, in full or in part, or not filed under seal, documents, which
documents are listed in the attachment to this Order.
Not all documents in the Miscellaneous matters at issue have been unsealed. In
considering the pending CNN/Polantz Unsealing Request for documents currently under seal in
those matters, the positions of the U.S. Department of Justice (“DOJ”) and relevant stakeholders
are relevant. To that end, DOJ is directed to provide its view, if any, on whether the eight
Miscellaneous matters at issue and corresponding sealed docket entries may be unsealed. DOJ is
also directed to provide notice to the individuals, who were recipients of the grand jury
subpoenas at issue or otherwise involved in these matters, concerning the pending CNN/Polantz
Unsealing Request, so that these individuals have an opportunity to inform the Court of their
views, if any, and address in camera and ex parte any privacy concerns these individuals may
have about the requested unsealing.
Accordingly, it is hereby
ORDERED that the Clerk’s Office shall make publicly available promptly on the
Court’s CM/ECF system and PACER the docket numbers Misc. No. 98-95, Misc. No. 98-96,
Misc. No. 98-97, Misc. No. 98-148, Misc. No. 98-202, Misc. No. 98-267, and Misc. No. 98-278;
and it is further
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ORDERED that, in those cases, the Clerk’s Office shall make any previously unsealed
documents and any documents not filed under seal, as identified in the attachment to this Order,
promptly available to the public; and it is further
ORDERED that, pending further consideration by this Court, all other documents in
those cases shall remain under seal; and it is further
ORDERED that the U.S. Department of Justice shall, by February 23, 2018, provide the
Court (1) its 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.
SO ORDERED.
Date: February 12, 2018
__________________
BERYL A. HOWELL
Chief Judge
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ATTACHMENT TO MEMORANDUM AND ORDER
LIST OF MC MATTERS AND DOCUMENTS TO BE MADE PUBLICLY ACCESSIBLE
Matter No. ECF No. Document Title Unsealing Order
98-MC-95 9 Memorandum of the White House in Opposition to OIC's Motions Order, In re Madison Guaranty
to Compel Bruce R. Lindsey and Sidney Blumenthal to Testify Savings & Loan Ass'n , Special
Concerning Conversations Protected by the Attorney-Client, Div. No. 94-1 (D.C. Cir. filed
Presidential Communications, and Work Product Privileges, July 7, 1998) ("D.C. Cir.
including exhibits (consolidated Opposition for 98-MC-95, 98- Order"); reprinted in Starr
MC-96, and 98-MC-97) Report, App. Vol. V at
2025–2138
70 Memorandum Opinion, dated May 26, 1998 - REDACTED Order dated May 26, 1998, 98-
MC-95, ECF No. 72 (Johnson,
C.J.) ("5/26/1998 Order")
71 Order, dated May 26, 1998 - REDACTED 5/26/1998 Order, 98-MC-95
72 5/26/1998 Order, 98-MC-95, with attachments: Order not filed under seal.
1. Motion to Compel Bruce R. Lindsey to Testify - REDACTED
2. Memorandum of the White House in Opposition to OIC'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 - REDACTED
3. Declaration of Charles F.C. Ruff - REDACTED
4. Reply Memorandum of the United States of America in
Support of Motion to Compel Bruce R. Lindsey to Testify -
REDACTED
5. Motion to Expedite Consideration of Motions to Compel
Testimony - REDACTED
75 Hearing Transcript, June 1, 1998 - REDACTED 5/26/1998 Order, 98-MC-95
76 Hearing Transcript, June 1, 1998 - REDACTED 5/26/1998 Order, 98-MC-95
77 Hearing Transcript, June 1, 1998 - REDACTED 5/26/1998 Order, 98-MC-95
78 Order dated June 2, 1998, 98-MC-95, ECF No. 78 (Johnson, C.J.) Order not filed under seal.
("6/2/1998 Order")
79 Brief Amicus Curiae for the United States of America, Acting 6/2/1998 Order, 98-MC-95
through the Attorney General, filed June 2, 1998 - REDACTED
Matter No. ECF No. Document Title Unsealing Order
98-MC-96 33 Memorandum Opinion, dated May 26, 1998 - REDACTED Order dated May 26, 1998, 98-
MC-96, ECF No. 35 (Johnson,
C.J.) ("5/26/1998 Order")
34 Order, dated May 26, 1998 - REDACTED 5/26/1998 Order, 98-MC-96
35 5/26/1998 Order, 98-MC-96, with attachments: Order not filed under seal.
1. Motion to Compel Sidney Blumenthal to Testify -
REDACTED
2. Reply Memorandum of the United States of America in
Support of Motion to Compel Sidney Blumenthal to Testify -
REDACTED
3. Motion to Expedite Consideration of Motions to Compel
Testimony - REDACTED
37 Hearing Transcript, June 1, 1998 - REDACTED 5/26/1998 Order, 98-MC-96
98-MC-97 24 Memorandum Opinion, dated May 26, 1998 - REDACTED Order dated May 26, 1998, 98-
MC-97, ECF No. 26 (Johnson,
C.J.) ("5/26/1998 Order")
25 Order, dated May 26, 1998 - REDACTED 5/26/1998 Order, 98-MC-97
26 5/26/1998 Order, 98-MC-97, with attachments: Order not filed under seal.
1. Motion to Expedite Consideration of Motions to Compel
Testimony - REDACTED
2. Motion to Compel [Redacted] to Testify - REDACTED
3. Reply Memorandum of the United States of America in
Support of Motion to Compel [Redacted] to Testify -
REDACTED
28 Hearing Transcript, June 1, 1998 - REDACTED 5/26/1998 Order, 98-MC-97
98-MC-148 6 Motion to Compel [Redacted], [Redacted], and [Redacted] to Not filed under seal.
Testify - REDACTED
7 Opposition to the Independent Counsel's Motion to Compel - Not filed under seal.
REDACTED
8 Reply Memorandum of the United States of America in Support Not filed under seal.
of its Motion to Compel [Redacted], [Redacted], and [Redacted]
to Testify - REDACTED
9 Memorandum Opinion, dated May 22, 1998 - REDACTED Not filed under seal.
10 Order, dated May 22, 1998 - REDACTED Not filed under seal.
15 Hearing Transcript, May 14, 1998 Not filed under seal.
22 Motion for a Protective Order or in the Alternative Motion to Not filed under seal.
Quash Subpoena - REDACTED
27 Memorandum Order, dated July 16, 1998 - REDACTED Order dated July 16, 1998, 98-
MC-148, ECF No. 28 (Johnson,
C.J.) ("7/16/1998 Order")
28 7/16/1998 Order, 98-MC-148 Order not filed under seal.
Matter No. ECF No. Document Title Unsealing Order
98-MC-267 1 Motion of William J. Clinton for Continuance, including exhibits D.C. Cir. Order; reprinted in
Starr Report, App. Vol. VI at
2279–2365
N/A Transcript of Status Hearing dated July 28, 1998 D.C. Cir. Order; reprinted in
Transcript does not appear on the CM/ECF docket. Starr Report, App. Vol. VI at
2369–2403
98-MC-278 1 Emergency Motion of Lanny A. Breuer to Stay Subpoena - Not filed under seal.
REDACTED
2 Opposition of the United States of America to Emergency Motion Not filed under seal.
to Stay Subpoena - REDACTED
3 Order, dated August 5, 1998 Order dated Jan. 21, 1999, 98-
MC-278, ECF No. 22 (Johnson,
C.J.) ("1/21/1999 Order")
4 Opposition of the United States to White House's Motion for Stay 1/21/1999 Order
Pending Appeal of Order Compelling Lanny Breuer's Testimony
5 Notice of In Camera Need Submission of the United States of 1/21/1999 Order
America
6 White House's Response to the OIC's In Camera Submission 1/21/1999 Order
7 Memorandum of the Office of the President in Response to This 1/21/1999 Order
Court's Order of August 5, 1998 Concerning a Stay of Any
Proceedings Pending Appeal
8 White House's Memorandum in Support of Mr. Breuer's Assertion 1/21/1999 Order
of the Attorney-Client Privilege
9 Memorandum Order, dated August 7, 1998 1/21/1999 Order
10 Memorandum Order, dated August 11, 1998 D.C. Cir. Order; reprinted in
Starr Report, App. Vol. VI at
2477–87
11 Notice of Appeal 1/21/1999 Order
12 Notice of Appeal 1/21/1999 Order
13 Notice of Appeal Order dated Sept. 10, 1998, 98-
MC-278, ECF No. 17 (Johnson,
C.J.) ("9/10/1998 Order")
14 Notice of Appeal 9/10/1998 Order
15 Errata 1/21/1999 Order
16 Motion of the United States of America to Unseal Notices of 1/21/1999 Order
Appeal dated August 21, 1998
17 9/10/1998 Order, 98-MC-278 1/21/1999 Order
22 1/21/1999 Order, 98-MC-278 Order not filed under seal.