In Re Special Proceedings ( 2012 )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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In Re SPECIAL PROCEEDINGS : Misc. No. 09-0198 (EGS)
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MEMORANDUM OPINION
Pending before the Court are two motions to permanently
seal from public disclosure the Report to the Honorable Emmet G.
Sullivan of Investigation Conducted Pursuant to the Court’s
April 7, 2009 Order (“Mr. Schuelke’s Report” or “Report”).1 For
the reasons discussed herein, the Court DENIES the motions and
ORDERS that Mr. Schuelke shall provide an unredacted version of
this Memorandum Opinion to each of the attorneys who received
copies of the Report, pursuant to the Court’s November 21, 2011
Order and the executed Confidentiality Agreement. It is further
ORDERED that Mr. Schuelke file his Report on the public docket
on March 15, 2012, after the subject attorneys are afforded an
1
In addition to the two motions, two individuals or entities
filed objections to publicly disclosing Mr. Schuelke’s Report,
and one entity filed a memorandum in support of publicly
releasing the Report, but these individuals and entities did not
specifically move the Court for their requested relief.
Nevertheless, as discussed infra Part I.B., the Court has
considered and will address all arguments made in opposition to
and in support of public disclosure, regardless of whether they
were made by motion, memorandum, or notice. As also discussed
infra Part I.B., the Department of Justice and two of the
subject attorneys filed pleadings indicating that they do not
oppose release of the Report.
opportunity to submit their comments or objections to Mr.
Schuelke by no later than March 8, 2012. Mr. Schuelke shall
include any such submissions as addenda to the published Report.
It is further ORDERED that when the Report is made public, the
individuals who are subject to the Confidentiality Agreement as
a condition to having access to the Report shall be released
from that Confidentiality Agreement. It is further ORDERED that
on March 15, 2012, all pleadings related to Mr. Schuelke’s
Report and filed in response to the Court’s November 21, 2011
Order shall be unsealed and placed on the public docket.
Finally, it is further ORDERED that on March 15, 2012, an
unredacted version of this Memorandum Opinion shall be placed on
the public docket.2
To deny the public access to Mr. Schuelke’s Report under
the circumstances of this case would be an affront to the First
Amendment and a blow to the fair administration of justice. In
July 2008, attorneys in the Public Integrity Section of the
Department of Justice indicted a public official for allegedly
failing to report gifts on his public disclosure forms. The
attorneys then tried the defendant in the most public manner
2
Because this Memorandum Opinion references information that is
currently under seal, the Court has made limited redactions to
this Opinion. In view of the Court’s decision to publicly
release Mr. Schuelke’s Report and the various pleadings
discussed herein on March 15, 2012, the Court will also post an
unredacted version of this Memorandum Opinion on that date.
2
possible, and when they obtained a guilty verdict, they held a
press conference to proclaim victory to the public. As a result
of that verdict, the public official lost his bid for re-
election, which tipped the balance of power in the United States
Senate.
Meanwhile, in the face of serious and mounting allegations
of prosecutorial misconduct throughout the trial and post-trial
proceedings, the attorneys repeatedly represented to the Court
and to the public that there was no wrongdoing and no cause to
question the integrity of either the indictment or the verdict.
Only when faced with uncontroverted evidence that the attorneys
had committed Brady violations3 did the government come before
the Court and publicly move to dismiss the indictment and vacate
the verdict. And only at that point did the government seek to
turn this public proceeding into a private one, assuring the
Court that it would investigate the prosecutors internally
through its confidential Office of Professional Responsibility
process.
The U.S. Court of Appeals for the District of Columbia
Circuit has said, following Supreme Court precedent, that First
Amendment access to criminal proceedings “serves an important
function of monitoring prosecutorial or judicial misconduct.”
Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991)
3
Brady v. Maryland, 373 U.S. 83 (1963).
3
(citations omitted). Mr. Schuelke’s five-hundred-page Report
concludes that “the investigation and prosecution of Senator
Stevens were permeated by the systematic concealment of
significant exculpatory evidence which would have independently
corroborated [his] defense and his testimony, and seriously
damaged the testimony and credibility of the government’s key
witness.” Mr. Schuelke’s Report at 1.
It is not an overstatement to say that the dramatic events
during and after the Stevens trial, and particularly the
government’s decision to reverse course and move to vacate the
verdict, led to a continuing national public discourse on
prosecutorial misconduct and whether and what steps should be
taken to prevent it. Withholding the Report from the public and
leaving the public with only the information from the trial and
immediate post-trial proceedings would be the equivalent of
giving a reader only every other chapter of a complicated book,
distorting the story and making it impossible for the reader to
put in context the information provided. The First Amendment,
the public, and our system of justice demand more.
I. Introduction
A. The Court’s November 21, 2011 Order
On April 7, 2009, in response to a series of allegations
and confirmed instances of prosecutorial misconduct during and
following the five-week trial of U.S. Senator Theodore F.
4
Stevens (“the Stevens trial”), the Court appointed Henry F.
Schuelke, III, to investigate and prosecute such criminal
contempt proceedings as may be appropriate against the six
Department of Justice attorneys responsible for the prosecution
of Senator Stevens (“the subject attorneys”). See Order
Appointing Henry F. Schuelke, United States v. Stevens, No. 08-
cr-231 (D.D.C. Apr. 7, 2009) (“April 7, 2009 Order”).
On November 21, 2011, the Court issued an Order indicating,
inter alia, that Mr. Schuelke had informed the Court that his
investigation was concluded and had submitted a five-hundred-
page report to the Court in camera. Order Regarding Report of
Henry F. Schuelke, III, and Setting Forth Instructions for
Further Proceedings at 12 (“November 21, 2011 Order”). The
Court’s Order went on to note that based on their exhaustive
investigation, Mr. Schuelke and his esteemed colleague, Mr.
William B. Shields, had concluded that the investigation and
prosecution of Senator Stevens were “permeated by the systematic
concealment of significant exculpatory evidence which would have
independently corroborated [his] defense and his testimony, and
seriously damaged the testimony and credibility of the
government’s key witness.” Id. at 3 (citing Mr. Schuelke’s
Report at 1). The Court then concluded:
While providing the public with the full results of
Mr. Schuelke’s investigation has been and remains the
Court’s intent, in view of the Amended Protective
5
Order entered in these proceedings on December 13,
2009, and this Circuit’s holding in In re North, 16
F.3d 1234 (D.C. Cir. 1994), the Court has determined
that Mr. Schuelke’s complete report should not be made
public at least until the Department of Justice has
had the opportunity to review the report. The Court
has further determined that it is appropriate to
afford the subject attorneys and Senator Stevens’s
attorneys the opportunity to review the report, under
the terms and conditions set forth [in the Order].
The Court will then consider any objections to making
Mr. Schuelke’s Report public[.]
Id. at 7.
B. The Pleadings Filed in Response to the Court’s
November 21, 2011 Order
In response to the Court’s November 21, 2011 Order, the
Department of Justice filed a Motion to File On Public Docket
the Notice of Department of Justice Regarding Materials
Referenced in Mr. Schuelke’s Report. The Court granted that
motion on January 9, 2012. The Department of Justice’s Notice
advised the Court that it “does not intend to file a motion
regarding Mr. Schuelke’s report” and that “[t]he government does
not contend that there is any legal prohibition on the
disclosure of any references in Mr. Schuelke’s report to grand
jury material, court authorized interceptions of wire
communications, or any sealed pleadings or transcripts that have
now been unsealed.” Notice of Dep’t of Justice Regarding
Materials Referenced in Mr. Schuelke’s Report, at 1-2 (“DOJ
Notice”). In addition, the Department of Justice informed the
Court that it was not asserting any deliberative process or
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attorney-work product privilege with respect to the information
contained in Mr. Schuelke’s Report. Id. at 2.
Each of the six subject attorneys filed notices, motions
and/or memoranda of law in response to the Court’s November 21,
2011 Order.4 Two of the subject attorneys informed the Court
that they either agree or do not object to the public release of
the Report. See Concurs with the Court’s Intent,
as Stated in its November 21, 2011 Order, to Release the Full
Report (“ Submission”) and Sealed Notice filed by
(“ Notice”). Two of the subject attorneys
filed motions to seal the Report. See Motion to Permanently
Seal the Report filed by (“ Motion”)
and Motion Opposing Public Release of Report by Henry F.
Schuelke, III filed by (“ Motion”).
Finally, two of the subject attorneys filed notices or memoranda
opposing release of the Report. See
Submission in Response to the Court’s November 21, 2011 Order
(“ Submission”) and Memorandum of Law Opposing
Publication of the Schuelke Report filed by (“
Memorandum”). These four pleadings opposing release raise
overlapping objections and arguments against publicly releasing
4
One of the subject attorneys, Nicholas Marsh, died on September
26, 2010, while Mr. Schuelke’s investigation was ongoing. A
pleading was filed on behalf of Mr. Marsh’s estate, which the
Court will refer to as Mr. Marsh’s pleading.
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the Report, and the Court will therefore analyze and discuss
them collectively as the “opposing attorneys’” pleadings and/or
arguments.5 Specifically, the opposing attorneys argue that
(1) because Mr. Schuelke’s investigation was a “grand jury-
style” investigation, it should be bound by the grand jury
secrecy rules and precedent, particularly where, as here, the
investigating body is not indicting or recommending criminal
prosecution (and therefore the allegations will not be subject
to adversarial proceedings); (2) the Court should not follow the
D.C. Circuit’s approach to releasing the Independent Counsel’s
report in In re North, 16 F.3d 1234 (D.C. Cir. 1994) (“North”),
or, if the Court does follow that approach, the Court should
conclude that the factors identified in that case do not weigh
5
This is not to say that the pleadings are equally comprehensive
or that each of the opposing attorneys made all of the same
arguments. Compare, e.g., the twenty-two-page Motion
(including extensive case law and analysis) and thirteen-page
Motion (including considerable case law and analysis) with
the two-page Submission (citing no legal authority) and
the four-page Memorandum (citing three cases with little
to no analysis). Although four of the six subject attorneys
noted their opposition to releasing the Report, only two of them
strenuously object and raise legal bases for withholding the
Report from the public. Nevertheless, because the general
objections to publicly releasing the Report are common to each
of the pleadings and all four opposing attorneys seek the same
relief, i.e., keeping the Report from the public, the Court will
consider the pleadings collectively. It is important to make
clear, however, that at times the Court is attributing all of
the arguments made to all four of the opposing attorneys, where
in most instances the argument, and certainly any analysis, were
in reality only proffered by one and sometimes two of the
opposing attorneys.
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in favor of releasing Mr. Schuelke’s Report; and (3) there is no
First Amendment right of access to Mr. Schuelke’s Report. See,
e.g., Motion at 6, 12, 17; Motion at 5, 8, 10-11.
Finally, one entity filed a memorandum urging the Court to
release the Report (1) in view of the highly public nature of
the Stevens trial, the First Amendment right to access these
proceedings and the common law right to access judicial records;
and (2) because if the Court were to consider the North factors,
those factors weigh heavily in favor of release. See Memorandum
in Support of Public Access to Mr. Schuelke’s Report filed by
(“ Memorandum”).6,7
Upon careful consideration of the various points and
authorities raised for and against public disclosure of Mr.
Schuelke’s Report, the relevant statutory and case law, the
entire record in the Stevens proceedings, and the highly unique
circumstances present in this case, and for the reasons
discussed below, the Court concludes that (1) the public has an
overriding and compelling right to access the Report, and that
6
7
In addition to the pleadings already discussed, one individual
or entity filed a motion to modify Mr. Schuelke’s Report. See
Motion for Modifications to Report filed by . That
motion was later withdrawn.
9
right is protected by the First Amendment; (2) Mr. Schuelke’s
investigation differed in significant respects from a grand jury
proceeding and is not bound by the grand jury secrecy rules, and
moreover the reasons underlying the secrecy of grand jury
proceedings are for the most part not relevant in this case; and
(3) the D.C. Circuit’s approach in North is instructive, and the
factors identified in that case as relevant to determining
whether to publicly release a special prosecutor’s report
overwhelmingly counsel in favor of publicly releasing the Report
under these circumstances. Accordingly, the Court will order
Mr. Schuelke to file his Report on the public docket. In order
to address any claimed prejudice to the subject attorneys,
however, the Court will first afford them another opportunity to
submit objections or comments to Mr. Schuelke to be published as
addenda to the Report, similar to the process followed in North
and subsequent cases.8
8
The Court notes that at least two of the opposing attorneys
imply in their pleadings that they were not “invited” to comment
on the substance of the Report. See Motion at 11 (“We do
not understand the Court’s order to invite comments on the
substance of the report and we do not undertake that effort
here.”); Memorandum at 3 (“While we understand that the
Court’s November 21, 2011 Order did not invite and the
other government attorneys to rebut the substance of the
Schuelke Report . . . .”). The Court’s November 21, 2011 Order,
however, specifically and explicitly provided that opportunity.
See November 21, 2011 Order at 10-11 (“It is further ORDERED
that any other individual seeking to withhold from the public
information contained in Mr. Schuelke’s Report shall file a
motion under seal, and, if appropriate, any comments or factual
10
II. Discussion
A. The First Amendment Right of Access to Judicial
Proceedings
The First Amendment to the United States Constitution
provides the public with a right of access to judicial
proceedings where (i) “the place and process have historically
been open to the press and general public”; and (ii) “public
access plays a significant positive role in the functioning of
the particular process in question.” Press-Enterprise Co. v.
Sup. Ct. of Cal. (“Press-Enterprise II”), 478 U.S. 1, 8 (1986);
see also Press-Enterprise Co. v. Sup. Ct. of Cal. (“Press-
Enterprise I”), 464 U.S. 501, 505-10 (1984); Globe Newspaper Co.
v. Sup. Ct. for Norfolk Cnty., 457 U.S. 596, 605-06 (1982);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573-74
(1980).
1. Criminal Trials – Including the Stevens Trial – Have
Historically Been Open to the Public
a. Relevant Case Law
The right of access is not limited to the criminal trial
itself, but extends to many pre- and post-trial documents and
proceedings. See, e.g., Press-Enterprise II, 478 U.S. at 10-13(First Amendment right of access to adversarial pre-trial
preliminary hearings); Press-Enterprise I, 464 U.S. at 510-11
information regarding the Report, by no later than January 6,
2012, and shall provide the basis and nature of the relief
sought.”) (emphasis added).
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(First Amendment right to access voir dire proceedings); United
States v. Ignasiak, Nos. 09-10596, 09-16005, and 10-11074, 2012
WL 149314, *15-16 (11th Cir. Jan. 19, 2012) (First Amendment
right of access to government’s post-trial pleading revealing
impeachment information of one of its key witnesses where
government argued that the witness’s privacy interest justified
keeping the information under seal); In re Search Warrant for
Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th
Cir. 1988) (First Amendment right of access to documents
supporting search warrants); Applications of Nat’l Broad. Co. v.
Presser, 828 F.2d 340, 344-45 (6th Cir. 1987) (First Amendment
right of access to pretrial documents); CBS, Inc. v. U.S. Dist.
Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825-26 (9th Cir.
1985) (First Amendment right of access to post-trial documents
regarding potential sentence reduction); Associated Press v.
U.S. Dist. Ct. for Cent. Dist. of Cal., 705 F.2d 1143, 1145 (9th
Cir. 1983) (First Amendment right of access to pretrial
documents); In re Access to Jury Questionnaires, No. 10-SP-1612,
2012 WL 140425, *4-5 (D.C. Jan. 19, 2012) (First Amendment right
of access to written juror questionnaires).
Although First Amendment access to criminal proceedings is
not absolute, the standard to overcome the presumption of
openness is a demanding one:
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The presumption of openness may be overcome only by an
overriding interest based on findings that closure is
essential to preserve higher values and is narrowly
tailored to serve that interest. The interest is to
be articulated along with findings specific enough
that a reviewing court can determine whether the
closure order was properly entered.
Press-Enterprise I, 464 U.S. at 510; see also United States v.
Brice, 649 F.3d 793, 796-97 (D.C. Cir. 2011) (assuming without
deciding that the First Amendment affords access to material
witness proceedings but upholding trial court’s closure of the
proceedings, where opening such proceedings would reveal
“private and painful” information related to then-juvenile
victims’ physical and mental health, constitute a “grotesque
invasion of the victims’ privacy[,]” and trial court made
finding that no alternatives to closure could protect the
compelling privacy interests).
b. The Public Nature of the Stevens Trial
As noted above, criminal trials have historically been open
to the public. See, e.g., Globe Newspaper Co., 457 U.S. at 603-
06; Richmond Newspapers, 448 U.S. at 564-74. The Stevens trial
was certainly no exception. In fact, recognizing from the
outset the significant public interest in the case, the Court
took extensive steps to ensure that members of the public and
the media had access to all aspects of the proceedings.9 See,
9
The Supreme Court has recognized that the public may obtain its
access to judicial proceedings through the media. See Richmond
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e.g., Order, Stevens, No. 08-231 (Sept. 19, 2008) (setting aside
reserved seats in the courtroom for members of the public and
the media as well as providing an “overflow” courtroom with live
audio and video transmittal of the proceedings).
The public’s interest in and right to access the Stevens
trial was not merely a theoretical one. Rather, the trial
received nearly unprecedented media coverage. By the Court’s
estimation, for the 25 days of trial (including jury selection
and deliberation), a total of 51 stories about the Stevens case
ran in the front sections of the Washington Post and the New
York Times. It is important to note, as the memorandum filed by
points out, that this media attention was
welcomed and even fostered by the prosecutors. See
Memorandum at 1-2. The government issued a press release on the
day it indicted Senator Stevens, and Matthew Friedrich, the
Acting Assistant Attorney General for the Criminal Division,
held a press conference to proclaim the news. See Press
Newspapers, 448 U.S. at 572-73 (“Instead of acquiring
information about trials by firsthand observation or by word of
mouth from those who attended, people now acquire it chiefly
through the print and electronic media. In a sense, this
validates the media claim of functioning as surrogates for the
public. While media representatives enjoy the same right of
access as the public, they often are provided special seating
and priority of entry so that they may report what people in
attendance have seen and heard. This ‘contribute[s] to public
understanding of the rule of law and to comprehension of the
functioning of the entire criminal justice system . . . .’”
(quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 587
(1976) (Brennan, J., concurring in judgment))).
14
Release, U.S. Dep’t of Justice, U.S. Senator Indicted on False
Statement Charges (July 29, 2008), available at
http://www.justice.gov/opa/pr/2008/July/08-crm-668.html (last
visited Feb. 6, 2012); Senator Ted Stevens Indictment, C-Span
Video Library (July 29, 2008), http://www.c-
spanvideo.org/program/280113-1 (accessed by searching “Ted
Stevens Indictment” and limiting the date range to July 29,
2008) (last visited Feb. 6, 2012). The Department of Justice
posted each day’s trial exhibits on its website. On the day of
the verdict, Mr. Friedrich stood with the trial team outside the
courthouse and pronounced to the television cameras that “[t]he
Department is proud of this team, not only for this trial, but
for the investigation that led to it.” Senator Stevens Verdict
News Conference Tr. at 00:03:23, C-Span Video Library (Oct. 27,
2008), http://www.c-spanvideo.org/appearance/554818464 (last
visited Feb. 6, 2012).
The public’s interest in the Stevens trial did not end
after the verdict, nor did this Court’s efforts to protect that
interest. Two months after the verdict, when the government
sought to seal a complaint alleging prosecutorial misconduct
filed by the FBI agent who had co-led the investigation of
Senator Stevens, the Court issued an opinion concluding that the
public had a First Amendment right to access the FBI agent’s
post-trial complaint and the government’s pleadings related
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thereto. See United States v. Stevens, Crim. No. 08-231 (EGS),
2008 WL 8743218, *8 (D.D.C. Dec. 19, 2008). Following the D.C.
Circuit’s decision in Washington Post v. Robinson, the Court
specifically found that access to the agent’s complaint and any
resulting proceedings would be likely to serve the important
function of monitoring prosecutorial misconduct, especially
where motions made during the trial raised the same or similar
allegations as those in the agent’s complaint, and the complaint
specifically included allegations of such misconduct. Id.(citing Robinson, 935 F.2d at 288). As discussed infra, the
same conclusion applies to Mr. Schuelke’s Report.
c. Mr. Schuelke’s Report is Related to the Stevens
Trial
The opposing attorneys argue that there is no First
Amendment right of access to Mr. Schuelke’s Report because it is
an investigative document and there is no “unbroken,
uncontradicted history” of access to such reports, which are the
equivalent of grand jury materials to which the First Amendment
does not provide a right of access. See Motion at 20-
21; Motion at 10. The opposing attorneys’ arguments based
on grand jury secrecy are discussed infra Part II.B. As for
their contention that the First Amendment does not provide
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access to the Report because it is an investigatory document
unrelated to the Stevens trial, that argument is misplaced.10
Mr. Schuelke’s Report relates and pertains to the Stevens
prosecution, as did the FBI agent’s post-trial complaint
alleging prosecutorial misconduct in the investigation and trial
of Senator Stevens. Rather than moving to dismiss the
indictment with prejudice, had the government filed a notice or
other pleading with the Court informing the Court that the
government had discovered post-trial that the prosecution team
had committed additional Brady violations, the Court would have
held an evidentiary hearing or otherwise taken steps to learn
the extent of the misconduct and determine whether sanctions or
other remedies, including criminal contempt proceedings, were
10
Nor is it significant that the clerk’s office created a
miscellaneous case number for filings in these contempt
proceedings. This administrative act has no bearing on whether
the Report is a judicial document relating to the Stevens case,
which, of course, it is. In fact, this is precisely the
position taken by two of the subject attorneys in the Court of
Appeals when they appealed this Court’s decision related to a
finding of civil contempt. See In re Contempt Finding in United
States v. Stevens, Case No. 10-5372 (D.C. Cir.), Motion to
Include District Court Docket in United States v. Stevens, 08-
cr-231 (D.D.C.), in the Record on Appeal (“Following its
decision to hold Appellants in contempt, the District Court
created a separate docket, In re Contempt Finding in United
States v. Stevens, 09-mc-273-EGS (D.D.C.), for further contempt
proceedings, which did not include entries for orders, filings,
and transcripts that are at the heart of the contempt finding. .
. . Only by including the docket entries in United States v.
Stevens can this Court have ready access to all of the
information necessary to render a full and fair decision in this
appeal.”). The D.C. Circuit affirmed this Court’s decision on
December 9, 2011. 663 F.3d 1270 (D.C. Cir. 2011).
17
appropriate. The public would certainly have enjoyed a First
Amendment right of access to those proceedings, under the well-
established precedent discussed above. However, in view of the
government’s unopposed motion to dismiss the indictment and
because Senator Stevens had a liberty interest at stake, it
would have been inappropriate to defer ruling on the
government’s motion in order to embark on such proceedings.
Accordingly, during a public hearing on the government’s
motion held in the Stevens case, the Court appointed Mr.
Schuelke to investigate and prosecute any criminal contempt
proceedings as may be appropriate. See Transcript of Hearing
46:12 – 47:15, Stevens, No. 08-231 (April 7, 2009) (“April 7,
2009 Tr.”). In appointing Mr. Schuelke, the Court explicitly
stated that “the Court has an obligation to determine what
happened here and respond appropriately, and I intend to do so.”
Id. 47:20-22. The Court also made clear that the public would
have access to that information. See id. 46:9-11. (“This court
has an independent obligation to ensure that any misconduct is
fully investigated and addressed in an appropriate public
forum.”). Only after appointing Mr. Schuelke did the Court
grant the government’s motion to dismiss. Id. 48:17-20.
After a highly publicized trial and months of post-trial
proceedings during which the prosecution team repeatedly denied
any wrongdoing and zealously defended the guilty verdict it had
18
obtained, the opposing attorneys cannot now circumvent the First
Amendment and any public accountability by relying on the
government’s eleventh-hour motion to dismiss the indictment with
prejudice.11 The First Amendment right of access “serves an
important function of monitoring prosecutorial or judicial
misconduct.” Robinson, 935 F.2d at 288 (citing Press-Enterprise
II, 478 U.S. at 8; Globe Newspaper Co., 457 U.S. at 605-06).
That includes a right of access to Mr. Schuelke’s Report under
the circumstances of this case.
2. Access to Mr. Schuelke’s Report Will Play a
Significant Positive Role in Informing the Public
Regarding Criminal Trials in General and the Stevens
Case in Particular
The second step in the First Amendment analysis, whether
access to the proceeding or document will play a significant
role in informing the public regarding the matter at issue, is
also satisfied here. As the Court stated during the April 7,
2009 hearing on the government’s motion to dismiss the
indictment, this was a case with many “dramatic and
unfortunately many shocking and disturbing moments.” April 7,
2009 Tr. at 3:14-16. Frequently during the trial, the Court was
11
In fact, just two months before the government’s dramatic move
to dismiss the indictment, the prosecution team told the Court
that there was no need for any post-trial discovery and that
“the government is confident that [its response to the
Defendant’s post-trial motions] will resolve the need for
further inquiry into the allegations as they relate to the trial
and the convictions of the Defendant.” See Gov’t’s Proposed
Scheduling Order at 1, Stevens (Feb. 6, 2009).
19
presented with persuasive arguments by the defense that the case
should be dismissed or a mistrial declared because of
prosecutorial misconduct. See, e.g., Senator Stevens’s Mot. to
Dismiss Indictment or for Mistrial, Stevens, No. 08-231 (Sept.
28, 2008); Def.’s Emergency Mot. to Dismiss Case or for Mistrial
Due to Gov’t’s Continuing Brady Violations, Stevens (Oct. 2,
2008); Def.’s Mot. to Dismiss Case or for Mistrial Due to
Gov’t’s Failure to Comply with Fed. R. Crim. Proc. 16(a)(1)(E),
Stevens (Oct 8, 2008).
In response to those arguments, the subject attorneys
repeatedly responded that the mistakes were “unintentional,”
“inadvertent,” and/or “immaterial.” For example, when the
government failed to produce the exculpatory grand jury
testimony of prospective government witness Rocky Williams, the
prosecutors claimed that the testimony was immaterial. See
Gov’t’s Opp’n to Def.’s Mot. to Dismiss or for New Trial,
Stevens (Sept. 29, 2008). When the government sent Mr. Williams
back to Alaska without first advising the defense or the Court,
the prosecutors asserted that they were acting in “good faith.”
Trial Transcript, Oct. 2, 2008, p.m., at 42. When government
counsel told the Court that the government’s key witness, Bill
Allen, had not been re-interviewed the day before the hearing on
its Brady disclosures, this was a “mistaken understanding.”
Gov’t’s Opp’n to Def.’s Motion to Dismiss Due to Alleged
20
Misconduct at 15 (Oct. 6, 2008). When the government failed to
turn over exculpatory statements from Dave Anderson, another
government witness, the prosecutors claimed that the statements
were immaterial. Trial Transcript, Oct. 8, 2008, p.m. at 58,
62, 64, 67. When the government failed to turn over a grand
jury transcript containing exculpatory information, the
prosecutors claimed that it was “inadvertent.” Trial
Transcript, Oct. 6, 2008, p.m. at 95. When the government used
“business records” that the government knew to be false, the
prosecutors said that it was unintentional. Trial Transcript,
Oct. 8, 2008, p.m. at 76. When the government failed to produce
the bank records of Bill Allen and then surprised the defense at
trial with Bill Allen’s check, it claimed that this, too, was
immaterial to the defense. Trial Transcript, Oct. 8, 2008, a.m.
at 3.
Notwithstanding mounting evidence to the contrary, the
Court accepted the prosecutors’ representations and declined to
dismiss the case or declare a mistrial (though the Court did
take other steps to ameliorate the prejudice to the defense).
Had the Court known of the misconduct and the information
concealed by the government, as documented in the Schuelke
Report, those decisions would have been different.
As the Court noted in its November 21, 2011 Order, Mr.
Schuelke and Mr. Shields found that the investigation and
21
prosecution of Senator Stevens were “permeated by the systematic
concealment of significant exculpatory evidence which would have
independently corroborated [his] defense and his testimony, and
seriously damaged the testimony and credibility of the
government’s key witness.” See Nov. 21, 2011 Order at 3
(quoting Mr. Schuelke’s Report at 1). Mr. Schuelke and Mr.
Shields found that at least some of this concealment was willful
and intentional, and related to many of the issues raised by the
defense during the course of the Stevens trial. In addition,
they found evidence of concealment and misconduct previously
unknown to the Court and to the defense, even after the
government moved to dismiss the indictment. For these reasons,
access to the Report would certainly play a positive role in
informing the public of the flaws in the criminal trial of
Senator Stevens.12
12
It is also significant to this analysis that the information
revealed as a result of the government’s motion to dismiss the
indictment and vacate the verdict in the Stevens case, and this
Court’s decision to appoint Mr. Schuelke to investigate the
subject attorneys, had dramatic implications for two other
individuals convicted by the Public Integrity Section as part of
the “Polar Pen Investigation” of Alaska political corruption.
Peter Kott, former Speaker of the Alaska House of
Representatives, and Victor H. Kohring, a former member of the
Alaska House of Representatives, had been convicted and were
serving prison sentences on bribery and extortion-related
charges when the government moved to dismiss the Stevens case
and the Court appointed Mr. Schuelke. Because of these events,
in April 2009, Mr. Kott and Mr. Kohring moved for release from
22
Moreover, access to the Report will also play a positive
role in the public’s understanding of the Court’s decision with
respect to criminal contempt proceedings in this case. As noted
in the Court’s November 21, 2011 Order, despite his findings of
significant, widespread, and at times intentional misconduct,
Mr. Schuelke is not recommending any prosecution for criminal
contempt. See Nov. 21, 2011 Order at 4. This is because in
order to prove criminal contempt beyond a reasonable doubt under
18 U.S.C. § 401(3), the contemnor must disobey an order that is
sufficiently “clear and unequivocal at the time it is issued.”
Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Mr.
Schuelke concluded that no such order existed in this case.
custody and for disclosure of all Brady material in their own
cases. In June 2009, the government uncovered Brady material in
both cases and asked the Ninth Circuit to remand the cases to
the District Court of Alaska and to immediately release Kott and
Kohring on personal recognizance. The Ninth Circuit granted the
requested relief. See Order, U.S. v. Kohring, Case No. 08-30170
(9th Cir. June 10, 2009) Doc. No. 41; Order, U.S. v. Kott, Case
No. 07-30496 (9th Cir. June 10, 2009) Doc. No. 59. In March
2011, the Ninth Circuit found that information suppressed by the
government in both cases was favorable and material to the
defense and that the prosecution violated Brady and Giglio v.
United States, 405 U.S. 150 (1972). The Court of Appeals
vacated the convictions and remanded the cases to the District
Court for new trials. See United States v. Kohring, 637 F.3d
895 (9th Cir. 2011); United States v. Kott, 423 F. App’x 736
(9th Cir. 2011). On October 21, 2011, both men pleaded guilty
and were sentenced to time served. Richard Mauer, Corruption
Trials Ended; Kott, Kohring Plead Guilty, Sentenced to Time
Served, ANCHORAGE DAILY NEWS (Oct. 22, 2011).
23
Rather, the Court accepted the repeated representations of the
subject prosecutors that they were familiar with their discovery
obligations, were complying with those obligations, and were
proceeding in good faith. See Nov. 21, 2011 Order at 4-5.
Having appointed Mr. Schuelke to “investigate and prosecute”
criminal contempt proceedings as appropriate, the Court accepts
his findings and conclusions. The public can neither understand
the basis for Mr. Schuelke’s findings and conclusions, however,
nor the basis for the Court’s decision to accept those findings
and conclusions, without access to the Report.
Further, it is not insignificant to the analysis of the
public’s right of access to Mr. Schuelke’s Report that the
public bore the cost not only of the Stevens trial and post-
trial proceedings, which resulted in the government seeking
permission to dismiss the indictment with prejudice and vacate
the verdict, but also the costs associated with Mr. Schuelke’s
investigation, and the costs associated with the subject
attorneys’ legal representation throughout that investigation.
See, e.g., Joe Palazzo, A Long Career Near the Spotlight But
Rarely In It, MAIN JUSTICE (July 17, 2009),
http://www.mainjustice.com/2009/07/17/a-long-career-near-the-
spotlight-but-rarely-in-it/ (noting that the federal judiciary
was paying Mr. Schuelke for the investigation (at a “fraction”
of his usual rate) and also paying the lawyers representing the
24
subject attorneys); Brad Heath, Taxpayers Pay to Defend
Prosecutors in Ted Stevens Case, USA TODAY, Feb. 2, 2012.
It would be a disservice to the public to require the
public to bear these costs, only to deny it the right to access
the previously undisclosed facts relevant to the public trial of
Senator Stevens and uncovered by Mr. Schuelke’s investigation.
In fact, the government recently made a similar argument in
successfully opposing a defendant’s motion to seal a consent
judgment. See Plaintiff’s Memorandum of Points and Authorities
in Opposition to the Defendant’s Motion to Seal Document, United
States v. Harry L. Thomas, 06-cv-497 (DAR), Doc. No. 30, at 2-3
(“Since this debt involves guarantees by the United States paid
on the original promissory notes, it involves the public funds
used to pay the guarantees. The public must have access to the
information it needs to appraise the Government’s work in
protecting and preserving these public funds and in implementing
the public policy behind guaranteed student loans.”).
Finally, access to the Report will play a significant role
in the public’s understanding of criminal trials and safeguard
against future prosecutorial misconduct, considerations the
courts have consistently found weigh heavily in favor of the
right of access. See, e.g., Press-Enterprise II, 478 U.S. at 12(stating that public access to criminal proceedings,
particularly those where no jury is present, provides a
25
“safeguard against the corrupt or overzealous prosecutor”);
Globe Newspaper Co., 457 U.S. at 606 (“Public scrutiny of a
criminal trial enhances the quality and safeguards the integrity
of the factfinding process, with benefits to both the defendant
and to society as a whole.”); Richmond Newspapers, 448 U.S. at
569 (finding that open criminal trials “discouraged [ ] the
misconduct of participants”); Robinson, 935 F.2d at 288 (“The
first amendment protects public access to [] court proceedings .
. . and serves an important function of monitoring prosecutorial
or judicial misconduct.” (citations omitted)).
The Stevens case has come not only to symbolize the dangers
of an overzealous prosecution and the risks inherent when the
government does not abide by its discovery obligations, but it
has also been credited with changing the way other courts,
prosecutors, and defense counsel approach discovery in criminal
cases. See, e.g., Amanda Coyne, Could Botched Ted Stevens
Prosecution Prompt Federal Legal System Reform?, ALASKA DISPATCH
(Nov. 28, 2011), available at
http://www.alaskadispatch.com/article/could-botched-ted-stevens-
prosecution-prompt-federal-legal-system-reform (recognizing
attention the Stevens case has received in Washington, D.C., and
around the country); David Ingram, Ted Stevens Became a Symbol
for Prosecutorial Misconduct, THE BLOG OF LEGAL TIMES (Aug. 10,
2010, 4:22 PM), http://legaltimes.typepad.com/blt/2010/08/ted-
26
stevens-became-a-symbol-for-prosecutorial-misconduct.html
(noting that Stevens has drawn “national attention to the
obligations of prosecutors to turn over exculpatory evidence”);
DLA Piper’s Zeidenberg on Prosecutorial Misconduct, Stevens and
Lindsey, 25 CORP. CRIME REPORTER 48 (Dec. 13, 2011), available at
http://corporatecrimereporter.com/zeidenberg12132011.htm
(stating that judges are taking allegations of prosecutorial
misconduct more seriously as a result of Stevens); Carrie
Johnson, Court Ruling Reignites Debate Over Sharing Evidence,
NPR (Jan. 12, 2012), available at
http://www.npr.org/2012/01/12/145102823/court-ruling-reignites-
debate-over-sharing-evidence (“Ever since the Ted Stevens
fiasco, there have been a lot of nervous people in the Justice
Department — all worried about the consequences of making a bad
decision.”).
In revealing what happened in the Stevens case, Mr.
Schuelke’s Report sheds significant light on these important
issues.
3. The Opposing Attorneys Have Made No Showing of a
Compelling Interest that Necessitates Closure, Nor
Have They Shown that No Alternatives to Closure Will
Adequately Protect Any Such Interest
As noted supra, the First Amendment right of access to
criminal proceedings is not absolute, but the presumption of
openness is overcome only by a compelling interest and a showing
27
that no alternatives to closure can adequately protect that
interest. See Press-Enterprise I, 464 U.S. at 510. The
opposing attorneys have made no such showing in this case.
While objecting generally to release of the Report as unfair and
prejudicial to the opposing attorneys’ privacy and reputational
interests, those attorneys have not specified any compelling
interest that would meet their high burden to justify keeping
the Report under seal.13 See, e.g., Press-Enterprise II, 478
U.S. at 14-15 (holding that state interest in preventing
inflammation of public opinion against defendant, and informing
potential jurors of exculpatory information wholly inadmissible
at the actual trial, did not justify closing preliminary
hearing); Globe Newspaper Co., 457 U.S. at 607-10 (concluding
that state interests in protecting minor victims of sex crimes
from trauma and embarrassment and in encouraging victims to come
forward and testify did not justify mandatory rule closing
criminal trials during testimony of such minor victims);
Richmond Newspapers, 448 U.S. at 580-81 (holding state interest
in completing trial proceedings for defendant, who had been
tried four times, in part because prospective jurors were
exposed to extensive media coverage, insufficient to close trial
13
Nor have any of the opposing attorneys contended that the
Report is factually inaccurate, with the exception of
, who asserted that the Report “contains inaccuracies”
but identified none. Submission at 2.
28
proceedings); Robinson, 935 F.2d at 290-92 (finding state
interests in maintaining secrecy of grand jury proceedings, not
compromising ongoing criminal investigation, and protecting
safety of defendant and his family did not justify sealing plea
agreement when defendant’s involvement in case, and ongoing
cooperation with police, were already within the public
knowledge); cf. Brice, 649 F.3d at 796-97 (assuming without
deciding that First Amendment affords access to material witness
proceedings but upholding trial court’s closure of the
proceedings, where opening such proceedings would reveal
“private and painful” information related to then-juvenile
victims’ physical and mental health, constitute a “grotesque
invasion of the victims’ privacy[,]” and trial court made
finding that no alternatives to closure could protect the
compelling privacy interest (internal citation and quotation
marks omitted)).
Here, the identity of the subjects was known from the
outset of the investigation, the matters under investigation
were largely known to the public from the outset and arose from
the subject attorneys’ conduct during the proceedings in a
highly-publicized criminal trial, and some of the subject
attorneys have themselves made statements to the media regarding
Mr. Schuelke’s investigation. Under these circumstances, the
opposing attorneys have not established an interest sufficiently
29
compelling to justify withholding the Report.14 Moreover, as
discussed below, the opposing attorneys’ arguments that the
First Amendment right of access is inapplicable because Mr.
Schuelke’s investigation was akin to a grand jury proceeding are
unavailing.
B. The Nature of the Schuelke Investigation
The opposing attorneys’ principal argument against publicly
releasing Mr. Schuelke’s Report is that the investigation
conducted by Mr. Schuelke was “substantially the same as a grand
jury proceeding and should be bound by the same secrecy rules
governing grand jury investigations.” Motion at 6; see
also Motion at 5; Memorandum at 1. The opposing
attorneys maintain that the reasons underlying the grand jury
secrecy rules are equally applicable to Mr. Schuelke’s
investigation and that it would be unfair and prejudicial to the
subject attorneys to release the Report when those attorneys
will have no opportunity to challenge the Report’s findings in
an adversarial proceeding. See, e.g., Motion at 8-12;
Motion at 11; Memorandum at 3. The Court will
discuss each of these arguments in turn.
14
Having concluded that the public has a First Amendment right
of access to Mr. Schuelke’s Report, the Court need not determine
whether there is also a common law right of access to the Report
as a judicial document. Memo at 6-8.
30
1. Grand Jury Secrecy
Grand jury secrecy is a long-established principle central
to our criminal justice system. See, e.g., Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 219 n.9 (1979) (“Since the
17th century, grand jury proceedings have been closed to the
public, and records of such proceedings have been kept from the
public eye. The rule of grand jury secrecy was imported into
our federal common law and is an integral part of our criminal
justice system.” (internal citations omitted)). The reasons for
such secrecy are also well-established.
First, if preindictment proceedings were made public,
many prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony.
Moreover, witnesses who appeared before the grand jury
would be less likely to testify fully and frankly, as
they would be open to retribution as well as to
inducements. There also would be the risk that those
about to be indicted would flee, or would try to
influence individual grand jurors to vote against
indictment. Finally, by preserving the secrecy of the
proceedings, we assure that persons who are accused
but exonerated by the grand jury will not be held up
to public ridicule.
Douglas Oil, 441 U.S. at 219. For these reasons, Federal Rule
of Criminal Procedure 6(e)(2)(B) prohibits disclosure of
“matter[s] occurring before the grand jury.”
The opposing attorneys’ reliance on this principle falters,
however, because (a) Mr. Schuelke’s investigation was not
conducted as part of a grand jury proceeding; (b) Rule 6(e) does
31
not apply to Mr. Schuelke’s investigation; and (c) the reasons
underlying the need for grand jury secrecy are largely
inapplicable to Mr. Schuelke’s investigation and the resulting
Report.
a. Mr. Schuelke’s Investigation Did Not Include a
Grand Jury Proceeding and Differed in Important
Respects from a Grand Jury Proceeding
The Fifth Amendment to the United States Constitution
provides in part that no person can be charged with a “capital,
or otherwise infamous” crime without a presentment or indictment
of a Grand Jury.15 Federal Rule of Criminal Procedure 6 governs
the grand jury process, including summoning and discharging the
grand jurors, the requisite number of grand jurors, who may be
present when the grand jury is in session, who may be present
when the grand jury is voting, and the requirements and
exceptions to grand jury secrecy. Federal grand juries are
summoned by the United States District Court for a particular
district, and they are administered by that court, which
receives any indictments the grand jury returns. Fed. R. Crim.
P. 6. Grand jurors take an oath, typically administered by the
chief judge of the district court to which the grand jury was
summoned. See, e.g., U.S. v. Williams, 504 U.S. 36, 47 (1992).
15
An individual can waive her right to an indictment by grand
jury, in which case a prosecutor can file with the court a
charging document known as an “Information,” which need not be
approved or even presented to a grand jury. Fed. R. Crim. P.
7(b).
32
This Court appointed Mr. Schuelke during the Stevens case
to “investigate and prosecute such criminal contempt proceedings
as may be appropriate” against the subject attorneys, pursuant
to Federal Rule of Criminal Procedure 42(a)(2).16 April 7, 2009
Order. Neither Mr. Schuelke, Mr. Shields, nor any of the
individuals or subjects appeared before a grand jury in relation
to Mr. Schuelke’s investigation. See Declaration of Henry F.
Schuelke, III (“Schuelke Decl.”) ¶ 4.
At least one of the opposing attorneys relies on In re
Special Proceedings, 373 F.3d 37 (1st Cir. 2004), for the
argument that Mr. Schuelke’s investigation was “substantially
the same” as a grand jury proceeding. Motion at 6. In
In re Special Proceedings, the U.S. Court of Appeals for the
16
Rule 42(a)(2) provides that the court “must request that the
contempt be prosecuted by an attorney for the government, unless
the interest of justice requires the appointment of another
attorney.” Fed. R. Crim. P. 42(a)(2). Where, as here, the
government attorneys are involved or possible subjects of the
prosecution, the court may choose to appoint a non-government
attorney. See, e.g., In re Special Proceedings, 373 F.3d 37, 43
(1st Cir. 2004) (upholding district court’s decision to appoint
non-government attorney under Fed. R. Crim. P. 42(a)(2) where
the district court had “multiple reasons for concern about
having the government handle the matter[,]” including that the
prosecution was a potential source of the leak being
investigated in the contempt proceeding); see also Young v.
United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 800-01
(1987) (“While contempt proceedings are sufficiently criminal in
nature to warrant the imposition of many procedural protections,
their fundamental purpose is to preserve respect for the
judicial system itself. As a result, courts have long had, and
must continue to have, the authority to appoint private
attorneys to initiate such proceedings when the need arises.”).
33
First Circuit concluded with little discussion or analysis that
the “principal reasons for grand jury secrecy” applied with
equal force to the special prosecutor’s investigation, and that
“[w]hat the special prosecutor is currently doing is
sufficiently like what a grand jury would do to make the analogy
decisive.” 373 F.3d at 47.
That case is of limited relevance here, however. As an
initial matter, the Court notes that the First Circuit’s
conclusion about the analogy between the special prosecutor and
the grand jury was in the context of a discussion of “an
ancillary matter” before that court, i.e., whether to unseal
four documents and a deposition transcript.17 Id. at 46.
Second, and more importantly, the First Circuit’s decision was
made during an ongoing investigation, where the need for secrecy
is more compelling. See id. at 46-47. Finally, the
investigation in that case focused on finding the source of a
leak that violated the district court’s protective order, and
the scope and subjects of the investigation may not have been
publicly known or even known to the subjects themselves,
requiring a greater level of secrecy. See id. at 40-41. In
17
The principal issue before the court in In re Special
Proceedings was a subject’s challenge to the district court’s
appointment of a private attorney, rather than a government
attorney, to prosecute contempt proceedings. As discussed supra
n.16, the Court of Appeals rejected the subject’s multiple
arguments and affirmed the district court’s appointment of a
non-government attorney.
34
this case, Mr. Schuelke’s investigation has concluded.
Moreover, the scope and subjects of the investigation have
always been publicly known and, as discussed infra Part
II.B.1.c, the reasons underlying grand jury secrecy, including
the two reasons cited by the First Circuit in In re Special
Proceedings, i.e., “to protect the innocent against unfair
publicity and to prevent tampering or escape by targets[,]” 373
F.3d at 47, are largely inapplicable to the unique circumstances
in this case.
In the present case, not only was Mr. Schuelke’s
investigation completely unrelated to and unaffiliated with any
grand jury, it also differed in many significant ways from the
grand jury process. For example, although Mr. Schuelke was
authorized by the Court to subpoena witnesses, none of the
subjects was subpoenaed; rather they appeared for deposition
voluntarily. Schuelke Decl. ¶ 3. Moreover, whereas witnesses
in the grand jury are not permitted to have their counsel
present in the grand jury, each of the subjects and other
witnesses deposed in this case was represented by counsel, and
counsel not only appeared with their client at the deposition,
but also were permitted freely to ask questions during the
depositions. See Schuelke Decl. ¶ 3. Significantly, and unlike
many grand jury investigations, the subjects here were provided
with the same underlying documents and information made
35
available by the Justice Department to Mr. Schuelke, who adopted
an open-file discovery policy. See Schuelke Decl. ¶ 2.
Finally, not only were the subjects of Mr. Schuelke’s
investigation publicly known from the outset – indeed, they were
announced in open court, named in the Court’s Order appointing
Mr. Schuelke, and widely covered in the media – but the subjects
knew from the outset that the Court intended to make public Mr.
Schuelke’s findings; in fact, the public’s right to know of any
misconduct during the Stevens case was the impetus for
appointing Mr. Schuelke. See April 7, 2009 Tr. 46:7-11 (“[T]he
events and allegations in this case are too serious and too
numerous to be left to an internal investigation that has no
public accountability. This court has an independent obligation
to ensure that any misconduct is fully investigated and
addressed in an appropriate public forum.”); April 7, 2009 Order
(identifying subjects); see also Neil A. Lewis, Tables Turned on
Prosecution in Stevens Case, N.Y. TIMES, Apr. 8, 2009, at A1
(detailing Judge Sullivan’s order to conduct an external
investigation and naming its subjects); James Oliphant, Ted
Stevens’ Charges Dismissed as Judge Excoriates Prosecutors, L.A.
TIMES, Apr. 8, 2009; Del Quentin Wilber, Judge Orders Probe of
Attorneys in Stevens Case; Prosecutor Misconduct Alleged in
Former Senator’s Trial, WASH. POST, Apr. 8, 2009, at A01.
36
b. Rule 6(e) Does Not Apply to Mr. Schuelke’s
Investigation
Federal Rule of Criminal Procedure 6(e) requires grand jury
secrecy with certain exceptions.18 Because the rule governs
grand jury proceedings, it does not apply to Mr. Schuelke’s
investigation. Nevertheless, the opposing attorneys argue that
because the investigation was “like” a grand jury proceeding,
the secrecy rules should apply. At least one opposing attorney
cites to In re Sealed Case 00-5116, 237 F.3d 657 (D.C. Cir.
2004), for support. See Motion at 7, n.3. This
argument is unpersuasive. In In re Sealed Case 00-5116, the
D.C. Circuit considered whether an investigation by the FEC had
to be handled under seal. See 237 F.3d at 661-62. The court
looked to the FEC’s statutory enforcement scheme and concluded:
The plain language of these provisions and the overall
purpose and structure of the statutory scheme create a
strong confidentiality interest analogous to that
protected by Federal Rule of Criminal Procedure
6(e)(6). In both contexts, secrecy is vital “to
protect [an] innocent accused who is exonerated from
18
The exceptions in the Rule providing for when grand jury
information may be made public are not exclusive. See, e.g., In
re Kutler, 800 F. Supp. 2d 42, 45 (D.D.C. 2011) (“Consistent
with this principle, it has been the initiative of courts—
through the exercise of their inherent authority regarding grand
jury records—that has shaped the development of Rule 6(e).
Since its adoption by the Supreme Court in 1944, the rule has
been amended to reflect ‘subsequent developments wrought in
decisions of the federal courts.’ These amendments confirm that
courts’ ability to order the disclosure of grand jury records
has never been confined by Rule 6(e)’s enumerated exceptions.”
(citation omitted)).
37
disclosure of the fact that he has been under
investigation.”
Id. at 667 (citations omitted).
In this case, there is no such statutory or regulatory
enforcement scheme requiring confidentiality. Moreover, as
discussed supra, the subjects of the investigation, the fact
that they were under investigation, and the matters and scope of
the investigation have been widely publicized from the outset.
Next, the opposing attorneys argue that the protective
orders entered by this Court during Mr. Schuelke’s investigation
provide for confidentiality of the discovery material produced
by the Department of Justice during the investigation, including
pre-existing grand jury material covered by Rule 6(e), and
therefore Mr. Schuelke’s Report “contains the equivalent of
grand jury material prohibited from disclosure by grand jury
secrecy rules.” Motion at 8; see also Motion at
7, 10. Fatal to the opposing attorneys’ argument, however, are
the facts that (a) the Protective Orders entered by the Court at
the request of the Department of Justice provided the Department
of Justice – not the subject attorneys – certain protections
with respect to the material it was producing to Mr. Schuelke
and to the subject attorneys; and (b) in response to the Court’s
November 21, 2011 Order directing the Department of Justice
pursuant to the Amended Protective Order to file a motion if it
38
believed “any of the Material(s) or sealed pleadings or
transcripts identified by Mr. Schuelke in his Report should be
withheld from the public,” the Department of Justice:
[A]dvise[d] the court that it does not intend to file
a motion regarding Mr. Schuelke’s report. The
government does not contend there is any legal
prohibition on the disclosure of any references in Mr.
Schuelke’s report to grand jury material, court-
authorized interceptions of wire communications, or
any sealed pleadings or transcripts that have now been
unsealed. Moreover, in order to be as cooperative as
possible with Mr. Schuelke’s investigation, the
Department did not withhold any information from Mr.
Schuelke on the basis of a privilege belonging to the
government, such as the deliberative process or
attorney-work product privilege, and therefore asserts
no such privilege now with respect to the information
contained in Mr. Schuelke’s report.
DOJ Notice at 1-2 (citing Fed. R. Crim. P. 6(e)(3)(E)(i); 18
U.S.C. § 2517(2)) (footnote omitted).
Accordingly, release of the Report does not violate any
legal or procedural rules requiring confidentiality or secrecy.
c. The Reasons Underlying Grand Jury Secrecy are
Largely Inapplicable to Mr. Schuelke’s
Investigation
As cited previously, the reasons for grand jury secrecy are
well established:
First, if preindictment proceedings were made public,
many prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony.
Moreover, witnesses who appeared before the grand jury
would be less likely to testify fully and frankly, as
they would be open to retribution as well as to
inducements. There also would be the risk that those
about to be indicted would flee, or would try to
39
influence individual grand jurors to vote against
indictment. Finally, by preserving the secrecy of the
proceedings, we assure that persons who are accused
but exonerated by the grand jury will not be held up
to public ridicule.
Douglas Oil, 441 U.S. at 218-19.
These reasons are largely inapplicable to Mr. Schuelke’s
investigation. First, the subjects in this matter are all
government attorneys, and each of them knew or had reason to
know what witnesses Mr. Schuelke would likely be interviewing or
deposing, most of whom were other government attorneys or
employees. As for the non-subject witnesses, because the
subjects and scope of the investigation were publicly known from
the outset and the investigation itself was the source of
considerable media attention, any hesitation to “come forward
voluntarily” could not be alleviated by secrecy.
Second, because the subjects are government attorneys, as
were most of the other witnesses, the Court assumes that the
risk that these individuals would be “less likely to testify
fully and frankly” or that they would be “open to retribution as
well as to inducements” is minimal, regardless of the level of
secrecy afforded by Mr. Schuelke’s investigation. Similarly,
the risk that the subjects might flee seems remote (in fact, the
subjects remain attorneys employed by the Department of
Justice), as does the risk that they would try to influence Mr.
Schuelke or Mr. Shields to recommend against prosecution.
40
Moreover, Mr. Schuelke and Mr. Shields are both well-respected
attorneys with a wealth of experience, including prosecutorial
experience, and highly unlikely to be susceptible to any such
attempts to influence their decisions in this matter.19
The final factor, protecting the accused from “public
ridicule,” is discussed below, though it is worth noting here
that the public has been well aware of the identity of the
subjects from the outset.
2. Potential Prejudice to the Subject Attorneys
The opposing attorneys argue that grand juries may not
accuse a person of criminal misconduct unless they return a
valid indictment, and that grand juries may not issue reports or
presentments if the investigation does not lead to an
indictment. See Motion at 9-10 (citing authorities).
Because Mr. Schuelke and Mr. Shields are not recommending that
19
Mr. Schuelke served in the Judge Advocate General’s Corps,
U.S. Army, including as a Military Judge in the U.S. Army
Judiciary. Mr. Schuelke is also a former Assistant United
States Attorney for the District of Columbia, and has served as
Special Counsel to the U.S. Senate Committee on Foreign
Relations, Special Counsel to the U.S. Senate Select Committee
on Ethics, a member of this court’s Committee on Grievances, and
currently serves as Special Counsel to the District of Columbia
Commission on Judicial Disabilities and Tenure. He has
practiced white-collar criminal defense for thirty-two years.
Mr. Shields served as an Assistant District Attorney in the New
York County District Attorney’s Office, and later as a Special
Assistant Attorney General in New York, where he led
investigations and prosecutions of health care fraud. Mr.
Shields has practiced white-collar criminal defense for twenty-
four years.
41
the subject attorneys be prosecuted for criminal contempt, the
opposing attorneys contend that the Report should remain sealed,
based on the same reasons that grand juries are prohibited from
issuing reports in cases where there is no indictment.
As the opposing attorneys point out, there are compelling
reasons to prohibit grand juries from issuing reports in cases
where there will not be an indictment. See Motion at
9-10; Motion at 11. For example, grand juries are not
adversarial proceedings, nor are they governed by the rules of
evidence, so the grand jury can “hear any rumor, tip, hearsay,
or innuendo it wishes, in secret, with no opportunity for cross-
examination.” In re Grand Jury Proceedings, Special Grand Jury
89-2 (Rocky Flats Grand Jury), 813 F. Supp. 1451, 1463 (D. Colo.
1992) (citation omitted). Moreover, “[t]he grand jury is not
required to hear or consider evidence which would exonerate a
target of an investigation, and the fairness of its methods is
unreviewable.” Id. Finally, as two opposing attorneys argue,
“a report issued by a non-indicting grand jury making
accusations against an uncharged individual causes the
individual to suffer public stigma and reputational damage
without affording the individual any meaningful opportunity to
rebut the allegations.” Motion at 10; see also
Motion at 11-12.
42
The Court is not insensitive to this issue and recognizes
that Mr. Schuelke is not recommending criminal contempt
proceedings. Nevertheless, the unique circumstances of this
case are distinct from the concerns expressed by the opposing
attorneys and the Rocky Flats court, and any claimed prejudice
to the subject attorneys is further addressed by the Court’s
decision to permit the subject attorneys to submit comments for
publication with the Report.20
First, although Mr. Schuelke’s investigation was not an
adversarial proceeding, the subject attorneys were represented
by counsel, who were permitted and did ask questions during the
depositions of their clients. See Schuelke Decl. ¶ 3. The
subjects were also provided access to the underlying evidence
and therefore had the opportunity to, and did, present defenses.
20
One of the opposing attorneys argues that the Report should be
permanently sealed because Rule 42 does not authorize or
contemplate such a report. See Motion at 21, n.10.
That argument is unpersuasive. Rule 42 and the case law
authorize the Court to appoint a non-government attorney to
prosecute criminal contempt proceedings if it is in the interest
of justice. See Young, 481 U.S. at 800-01; In re Special
Proceedings, 373 F.3d at 43. The purpose of the Rule is to
“preserve respect for the judicial system itself.” Young, 481
at 800. It seems incongruous that the Rule would authorize the
court to appoint such an attorney but not permit the attorney to
meaningfully report back to the court after investigating the
matter at issue. Such a result would be inconsistent with the
Rule’s purpose to “preserve respect for the judicial system
itself.” A detailed written report is all the more appropriate
in a complex case such as this, requiring review of more than
150,000 pages of documents, numerous depositions, and extensive
research.
43
See Id. ¶ 2. In fact, this is evident from the deposition
testimony excerpted at length in the Report. Moreover, while
Mr. Schuelke’s investigation was not specifically governed by
the rules of evidence, given the nature and scope of the
investigation and its subjects, as well as Mr. Schuelke and Mr.
Shields’ experience investigating, prosecuting and defending
criminal matters, see supra n.19, there should be no concern
regarding their inclination to consider or be susceptible to
“rumor, tip, hearsay, or innuendo.”21 In addition, as is clear
from his Report, Mr. Schuelke did consider evidence favorable to
the subjects of his investigation, and drew certain conclusions
based on that evidence. Releasing Mr. Schuelke’s Report will
actually subject the “fairness of [his] methods” to review.
Rocky Flats, 813 F. Supp. at 1463.
Finally, the need to guard against any public stigma and
reputational damage in releasing the Report is diminished by the
unique circumstances of this case. Here, both the issues under
investigation and the subjects of the investigation have been
known and widely publicized from the outset, as they stemmed
from very public proceedings. The subjects were also on notice
from the outset that the Court intended the results of the
investigation to be public because the Court announced that
21
The Report makes abundantly clear that its findings and
conclusions are based exclusively on the documentary record and
witness testimony.
44
intent during the April 7, 2009 hearing when it appointed Mr.
Schuelke. April 7, 2009 Tr. at 46:7-11 (“[T]he events and
allegations in this case are too serious and too numerous to be
left to an internal investigation that has no public
accountability. This court has an independent obligation to
ensure that any misconduct is fully investigated and addressed
in an appropriate public forum.”). In fact, at least some of
the subject attorneys themselves have made statements to the
press about the investigation. See, e.g., Mike Scarcella,
Judge: Ted Stevens Investigation Reveals Prosecutorial
Misconduct, THE BLOG OF LEGAL TIMES (Nov. 21, 2011, 11:57 AM),
http://legaltimes.typepad.com/blt/2011/11/judge-ted-stevens-
investigation-reveals-proseuctorial-misconduct.html; Mike
Scarcella, Appeals Court Backs Civil Contempt Ruling in Ted
Stevens Case, THE BLOG OF LEGAL TIMES (Dec. 9, 2011 4:57 PM),
http://legaltimes.typepad.com/blt/2011/12/appeals-court-backs-
civil-contempt-ruling-in-ted-stevens-case.html.
Moreover, it is significant that two of the six subject
attorneys either do not oppose and/or favor publicly releasing
the Report. In addition, all of the subject attorneys work for
the Department of Justice and were investigated by the
Department’s Office of Professional Responsibility (“OPR”),
presumably regarding the same conduct investigated by Mr.
Schuelke, and the Department of Justice has reviewed Mr.
45
Schuelke’s Report.22 Accordingly, the subject attorneys’
employer is already aware of the information in the Report, and
therefore any argument that they will suffer professional damage
from release of the Report is speculative.
Nevertheless, in order to address any claimed prejudice
that could result from releasing the Report when its findings
will not be subjected to an adversarial proceeding, the Court
will afford the subject attorneys another opportunity to submit
comments on the Report. See supra n.8. Those comments shall be
published with the Report, to enable the public to consider the
subject attorneys’ comments simultaneously with the Report.
This is in keeping with the process followed by the D.C. Circuit
in In re North and subsequent cases, where there were similar
concerns about publicly releasing a report containing
22
The Court notes that while the government promised, both in
its April 1, 2009 Motion to Dismiss and at the April 7, 2009
hearing, to share the results of its OPR investigation at least
with the Court, if not the public, the Court has yet to either
see that report or be invited to see that report. See Mot. of
the United States to Set Aside Verdict and Dismiss Indictment
With Prejudice at 2, Stevens (Apr. 1, 2009); April 7, 2009 Tr.
at 14:24-15:3. The Attorney General has, however, recognized
the very public nature of the Stevens case and its aftermath.
Oversight of the U.S. Department of Justice: Hearing before the
Senate Judiciary Comm., Webcast at 66:00 - 66:10 (Nov. 8, 2011),
http://www.judiciary.senate.gov/hearings/hearing.cfm?id
=9b6937d5e931a0b792d258d9b32d21a8 (last visited Feb. 2, 2012),
(“I want to share as much of [the OPR report] as we possibly can
given the very public nature of that matter and the very public
nature of the decision I made to dismiss the case[.]”).
46
allegations that would not be subjected to an adversarial
process. See North, 16 F.3d at 1236, 1241; see also In re
Cisneros, 426 F.3d 409, 413-14 (D.C. Cir. 2005); In re Espy, 259
F.3d 725, 729 (D.C. Cir. 2001).
C. The D.C. Circuit’s Decision in In re North
In the case of In re North, the D.C. Circuit considered
whether to publicly release the Independent Counsel’s report on
the Iran-Contra investigation. 16 F.3d 1234. To be clear, the
expired Independent Counsel statute is obviously not directly
applicable to this case. Nevertheless, the Circuit’s analysis
in North is instructive. In North, as here, the court was faced
with objections to publicly releasing the Independent Counsel’s
report based on arguments that (1) it was unfair to release a
report raising allegations of wrongdoing when those allegations
would not be tested by an adversarial process; and (2) the
report contained grand jury material subject to Federal Rule of
Criminal Procedure 6(e)’s secrecy requirements. As discussed
supra Part II.B., those are the same arguments raised by the
subject attorneys opposed to releasing Mr. Schuelke’s Report.
In the final analysis, and not without reservations, the
North court determined that the report should be released, with
the inclusion of an appendix consisting of comments from persons
named in the report. 16 F.3d at 1241. The court reached that
determination after weighing four factors, and it later used the
47
same framework and reached the same or similar conclusions in
two subsequent cases involving whether to release reports by two
other Independent Counsel. See id. at 1240-41; Cisneros, 426
F.3d at 413-14; Espy, 259 F.3d at 729-30.
This Court has already determined, as discussed supra Part
II.A, that the First Amendment right of access compels
disclosure of Mr. Schuelke’s Report. A brief discussion of the
factors set forth in North, however, demonstrates that those
factors also overwhelmingly weigh in favor of disclosure. Those
factors are:
(1) whether the subjects of the investigation have
already been disclosed to the public; (2) whether the
subjects do not object to the filings being released
to the public; (3) whether the filings contain
information which is already publicly known[;] and (4)
whether the [c]ourt filings consist of legal or
factual rulings in a case which should be publicly
available to understand the court’s rules and
precedents or to follow developments in a particular
matter.
North, 16 F.3d at 1240; see also Cisneros, 426 F.3d at 413;
Espy, 259 F.3d at 729.
1. Whether the Subjects of the Investigation Have
Already Been Disclosed to the Public
This factor obviously requires little discussion or
analysis. As discussed throughout, the subject attorneys were
named in the Court’s public order appointing Mr. Schuelke, have
been identified in any number of articles regarding the
48
investigation, and several have made statements to the media
themselves about Mr. Schuelke’s investigation.
2. Whether the Subjects Do Not Object to the Filings
Being Released to the Public
As previously noted, four of the six subject attorneys
oppose releasing Mr. Schuelke’s Report – though the degree and
extent of their opposition varies. See supra n.5. One of the
subject attorneys, on the other hand, “welcomes” release of the
Report, and the sixth subject attorney does not oppose release.
See Submission; Notice. It is not possible, nor
would it be appropriate under the unique circumstances in this
case, to release only those portions that relate to the non-
opposing attorneys. See, e.g., North, 16 F.3d at 1240 (“Movants
seeking release and movants opposing are the subjects of
accounts as intertwined and inseparable as fibers within the
strands of a woven rope.”). Accordingly, while this factor
independently might weigh against release, it is heavily
outweighed by the other factors under North and for all of the
reasons discussed previously in this decision.
3. Whether the Filings Contain Information Which is
Already Publicly Known
This factor weighs heavily in favor of disclosure. Not
only does the Report relate to representations made and actions
taken by the subject attorneys during and leading up to the
highly-publicized Stevens trial, it also reveals underlying
49
facts that counter or contradict some of those actions and
representations. In other words, withholding the Report leaves
the public in some cases with only the wrong or misleading
information.23 See North, 16 F.3d at 1240 (“Not only is the
information widely known, it is widely known incorrectly.”).
4. Whether the Court Filings Consist of Legal or
Factual Rulings In a Case Which Should Be Publicly
Available to Understand the Court’s Rules and
Precedents or to Follow Developments in a Particular
Matter
Finally, this factor also weighs heavily in favor of
disclosure.24 Again, the extent to which the media and the
23
24
Curiously, one opposing attorney argues that because Mr.
Schuelke’s Report contains “substantial allegations of
50
public followed the developments in the Stevens trial is nearly
unprecedented. As the Court said in its November 21, 2011
Order,
The public availability of the results of Mr.
Schuelke’s Report will facilitate the public’s
understanding of the Court’s rulings in the Stevens
case and the constitutional and procedural
requirements inherent in our criminal justice system,
and will better enable the public to follow and place
in context the developments in the Stevens case, all
of which, again, were widely publicized at the time.
November 21, 2011 Order at 12.
Moreover, as discussed supra, the Stevens trial and its
aftermath have led to an ongoing national dialogue regarding the
constitutional and procedural requirements – or lack thereof –
that protect defendants in the criminal justice system. See,
e.g., Mike Scarcella, Divided on Discovery; A Bare Majority of
Judges Would Impose Stricter Rules on Prosecutors, NATIONAL LAW
JOURNAL, Mar. 14, 2011 (explaining that Stevens led to a call for
‘concealment and serious misconduct that was previously
unknown,’” the Report “could not possibly help explain the
Court’s rulings in United States v. Stevens or assist the public
in following developments in a trial that ended in 2008.”
Motion at 10 (quoting the Court’s November 21, 2011 Order). In
other words, the opposing attorney appears to argue that because
the information was concealed from the defense and the public
long enough for the government to move to dismiss the indictment
(upon discovery by new Department of Justice attorneys that some
of the information previously withheld from the defense by the
subject attorneys would at least require a new trial), the
evidence of that concealment and misconduct could never have a
bearing on what occurred in the Stevens trial and should never
come to light. The Court finds this argument utterly devoid of
merit.
51
the Judicial Conference Criminal Rules Committee to reconsider
expanding prosecutors’ discovery obligations; according to a
survey by the Federal Judicial Center, 51 percent of federal and
magistrate judges favor changing Federal Rule of Criminal
Procedure 16 to require the disclosure of all exculpatory
information to the defense); American Bar Association, Select
Committee Report on the ABA Annual Meeting 14 (Sept. 2, 2011),
available at
http://www.americanbar.org/groups/leadership/2011_annual_house_m
tg_docs.html (follow “Select Committee Report (September 7,
2011)” hyperlink) (noting approval by ABA House of Delegates of
Criminal Committee Resolution 105D, urging governments to adopt
formal disclosure rules requiring prosecutors to disclose
exculpatory evidence to defense) (last visited Feb. 6, 2012);
MODEL CRIMINAL CODE, 18 U.S.C. § 3014 (Draft Proposed by Nat’l Ass’n
of Criminal Defense Lawyers 2011), available at
http://www.nacdl.org/NewsReleases.aspx?id=20531 (follow “NACDL
Proposed 18 USC § 3014” hyperlink at bottom of page) (requiring
prosecutors to disclose information favorable to the defendant)
(last visited Feb. 6, 2012). The exhaustive efforts of Mr.
Schuelke and Mr. Shields, which involved review of more than
150,000 pages of documents, twelve depositions, witness
interviews, and a comprehensive understanding of the
government’s investigation, charges, pre-trial and trial
52
proceedings, not only in the Stevens matter, but also in
relevant aspects of at least two other federal prosecutions
brought by the Department of Justice’s Public Integrity Section
against Alaskan state officials, can greatly inform that
national discussion.25,26
III. Conclusion
As set forth above, the public has a First Amendment right
of access to Mr. Schuelke’s Report. In fact, under the
circumstances of this case, it would be a disservice and an
injustice to withhold the results of the Report, particularly
25
See supra n.12.
26
As noted supra, n.16, Rule 42(a)(2) authorizes the court to
appoint a private attorney to prosecute a criminal contempt
proceeding where the “interest of justice” so requires. The
purpose of the rule is “to preserve respect for the judicial
system itself.” See Young, 481 U.S. at 800-01. While the need
to initiate criminal contempt proceedings, and to make such an
appointment in the interest of justice, is thankfully rare, when
it does arise, the rule’s purpose of “preserving respect for the
judicial system” depends on the willingness of a private
attorney to accept and carry out such an appointment. Here, the
appointment to investigate the six subject attorneys and
determine the extent of any prosecutorial misconduct in the
Stevens case was a tremendous undertaking, both because of the
scope and the nature of the investigation. The Court is
profoundly grateful first and foremost to Mr. Schuelke, and also
to his colleague Mr. Shields and the law firm of Janis, Schuelke
& Wechsler, for the significant resources they invested in this
matter over the course of nearly three years. The Court is
particularly appreciative of what is so evident in the Report,
and that is the thoughtful, diligent, fair, and sensitive way in
which Mr. Schuelke and Mr. Shields approached their
responsibilities pursuant to this appointment. In the Court’s
view, their professionalism does indeed “preserve respect for
the judicial system itself.”
53
where the Court indicated from the outset that it would make the
Report public. Mr. Schuelke’s Report chronicles significant
prosecutorial misconduct in a highly publicized investigation
and prosecution brought by the Public Integrity Section against
an incumbent United States Senator. The government’s ill-gotten
verdict in the case not only cost that public official his bid
for re-election, the results of that election tipped the balance
of power in the United States Senate. That the government later
moved to dismiss the indictment with prejudice and vacate the
verdict months after the trial does not eradicate the
misconduct, nor should it serve to shroud that misconduct in
secrecy. The First Amendment serves the important function of
monitoring prosecutorial misconduct, but the public cannot
monitor the misconduct in the Stevens case without access to the
results of Mr. Schuelke’s investigation, which are detailed in
his five-hundred-page Report.
Accordingly, it is hereby
ORDERED that the two motions to withhold the Report are
DENIED; it is further
ORDERED that Mr. Schuelke shall distribute an unredacted
version of this Memorandum Opinion to all attorneys who received
copies of the Report, pursuant to the Court’s November 21, 2011
Order and the executed Confidentiality Agreement; it is further
54
ORDERED that by no later than March 8, 2012, each subject
attorney may submit to Mr. Schuelke four paper copies and one
electronic copy of written comments or objections to be filed as
addenda to Mr. Schuelke’s Report; it is further
ORDERED that Mr. Schuelke shall file his Report on the
public docket on March 15, 2012, which shall include as addenda
to the Report any comments or objections received from the
subject attorneys; it is further
ORDERED that when the Report is made public, the
individuals who are subject to the Confidentiality Agreement as
a condition to having access to the Report shall be released
from that Confidentiality Agreement; it is further
ORDERED that on March 15, 2012, all pleadings related to
Mr. Schuelke’s Report and filed in response to this Court’s
November 21, 2011 Order shall be unsealed and placed on the
public docket; finally, it is further
ORDERED that on March 15, 2012, an unredacted version of
this Memorandum Opinion shall be placed on the public docket.
An appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Court Judge
February 8, 2012
55