In Re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided September 7, 1999
Redacted Version Issued September 13, 1999
In re: Sealed Case No. 99-3091
(Office of Independent Counsel Contempt Proceeding)
Consolidated with
99-3092
Appeal from the United States District Court
for the District of Columbia
(No. 99ms00038)
---------
ON A MOTION FOR SUMMARY REVERSAL OR STAY
---------
Kenneth W. Starr, Independent Counsel, Paul Rosenzweig,
Associate Independent Counsel, Donald T. Bucklin, and An-
drew W. Cohen, for appellant the United States.
James K. Robinson, Assistant Attorney General, Michael
E. Horowitz, Deputy Assistant Attorney General, and Lisa
Simotas, Attorney, for the Attorney General.
David E. Kendall, Nicole K. Seligman, Alicia L. Marti, for
William J. Clinton.
W. Neil Eggleston, Timothy K. Armstrong, for the Office
of the President.
Before: Wald, Silberman, and Henderson, Circuit Judges
Opinion for the Court filed Per Curiam.
PER CURIAM: The Office of Independent Counsel (OIC)
seeks summary reversal of the district court's order to show
cause why OIC should not be held in contempt for violating
the grand jury secrecy rule, and its order appointing the
United States Department of Justice as prosecutor of OIC in
a criminal contempt proceeding. In the alternative, OIC
seeks a stay of those orders pending appeal. We conclude we
have jurisdiction to consider the interlocutory appeal and
grant the motion for summary reversal.
I.
On January 31, 1999, while the Senate was trying President
William J. Clinton on articles of impeachment, the New York
Times published a front page article captioned "Starr is
Weighing Whether to Indict Sitting President." As is rele-
vant here, the article reported:
Inside the Independent Counsel's Office, a group of
prosecutors believes that not long after the Senate trial
concludes, Mr. Starr should ask the grand jury of 23 men
and women hearing the case against Mr. Clinton to indict
him on charges of perjury and obstruction of justice, the
associates said. The group wants to charge Mr. Clinton
with lying under oath in his Jones deposition in January
1998 and in his grand jury testimony in August, the
associates added.
The next day, the Office of the President (the White House)
and Mr. Clinton jointly filed in district court a motion for an
order to show cause why OIC, or the individuals therein,
should not be held in contempt for disclosing grand jury
material in violation of Federal Rule of Criminal Procedure
6(e).1 The White House and Mr. Clinton pointed to several
excerpts from the article as evidence of OIC's violations of
the grand jury secrecy rule.
OIC responded that the matters disclosed in the article
merely rehashed old news reports and, in any event, did not
fall within Rule 6(e)'s definition of "matters occurring before
the grand jury." OIC also submitted a declaration from
Charles G. Bakaly, III, then-Counselor to the Independent
Counsel, regarding his communications with the author of the
article, Don Van Natta, Jr. Bakaly declared, among other
things, that in his conversations with Van Natta about wheth-
er the Independent Counsel could indict the President while
still in office, "I refused to confirm or comment on what
Judge Starr or the OIC was thinking or doing." According to
OIC, the declaration was for the purpose of demonstrating
that even if the matters disclosed were grand jury material,
OIC was not the source of the information in the article.
Notwithstanding the foregoing, Independent Counsel Ken-
neth W. Starr asked the Federal Bureau of Investigation to
provide OIC assistance in conducting an internal leak investi-
gation. The Department of Justice authorized the FBI to do
so, and as a result of the investigation, [
]2 Consequently, OIC took ad-
ministrative action against Bakaly and referred the matter to
the Department of Justice for a criminal investigation and
decision. OIC informed the district court of these develop-
ments, withdrew Bakaly's declaration, and abandoned its
argument that OIC was not the source of the information
disclosed in the New York Times article. Although OIC
noted that "the article regrettably discloses sensitive and
confidential internal OIC information," it continued to main-
tain that the information was not protected by Rule 6(e).
__________
1 That rule provides in relevant part: "[A]n attorney for the
government ... shall not disclose matters occurring before the
grand jury, except as otherwise provided in these rules...."
2 Bold brackets signify sealed material.
Troubled by these developments, the district court ordered
Bakaly and OIC to show cause why they should not be held in
civil contempt for a violation of Rule 6(e), concluding that the
portion of the New York Times article quoted above revealed
grand jury material and constituted a prima facie violation of
Rule 6(e). [
] The district court scheduled a consolidated
show cause hearing, ordered the FBI and OIC to produce in
camera all their relevant investigative reports, and required
the FBI agents involved in the investigation to appear to
testify. In accordance with this court's holding in In re
Sealed Case No. 98-3077, 151 F.3d 1059, 1075-76 (D.C. Cir.
1998), the district court ordered that the proceedings be
closed and ex parte.
Convinced that the district court had misinterpreted this
court's precedent, OIC and Bakaly asked the district court to
certify for interlocutory appeal the question of the proper
scope of Rule 6(e). The district court denied the request,
referring only to its previous orders. In the meantime, DOJ
entered an appearance as counsel for the potential FBI
witnesses and sought a stay of the proceedings, including
Bakaly's requests for discovery, pending the completion of its
criminal investigation. The district court granted the stay,
and on July 13, DOJ notified the district court by letter that
it had completed its investigation. [
]
One day later, on July 14th, the district court sua sponte
issued an order appointing DOJ to serve as prosecutor of the
contempt charges against Bakaly and OIC. The district
court explained its unexpected inclusion of OIC in DOJ's
prosecution: "DOJ's letter only refers to the contempt
charges lodged against Mr. Bakaly. However, the Court also
needs to resolve the closely related allegations against the
OIC. The Court believes that these matters are best re-
solved through a single contempt proceeding involving both
Mr. Bakaly and the OIC." Although the district court decid-
ed to afford Bakaly and OIC the protections of criminal law,
it left open the possibility of civil, or a combination of civil and
criminal, contempt sanctions. The district court also sched-
uled a pre-trial status conference for July 23.
Both DOJ and OIC responded immediately. In another
letter to the court, DOJ asked the district court to withdraw
its referral of OIC for prosecution. DOJ explained that
based on its investigation, there was no factual basis for
proceeding with a criminal contempt prosecution against the
OIC in connection with the New York Times article. In
addition, DOJ stated its view that the district court lacked
authority to proceed against OIC for criminal contempt be-
cause Rule 6(e) only applies to individuals, OIC cannot be
held vicariously liable for acts of its staff, and OIC is entitled
to sovereign immunity.
OIC filed an emergency motion to vacate the district
court's July 14 order, objecting to being named as a criminal
defendant and to the entry of an order without affording the
parties an opportunity to respond to DOJ's first letter. OIC
also argued that there was no factual basis for the order, and
raised numerous legal objections, including the argument that
OIC is entitled to sovereign immunity from a criminal con-
tempt proceeding.
Faced with having to enter an appearance as a criminal
defendant at the status conference scheduled for July 23, and
not having obtained a ruling from the district court on the
emergency motion, on July 22, OIC noted an ex parte appeal
from the district court's March 25 and July 14 orders and
filed a motion for summary reversal or, in the alternative,
stay pending appeal.3 Because the criminal contempt pro-
ceedings were scheduled to commence immediately, we issued
__________
3 OIC also filed a petition for writ of mandamus in the event
this court does not have jurisdiction over the interlocutory appeal.
an administrative stay of those proceedings so that we would
have sufficient opportunity to consider the merits of the
motion. To obtain an adversarial viewpoint on what we
consider to be the dispositive issue in this case, we ordered
Mr. Clinton and the White House, along with DOJ and OIC,
to brief the question whether the alleged disclosures in the
New York Times article relied upon by the district court in
ordering a criminal contempt proceeding constitute a prima
facie violation of Rule 6(e).
II.
Before reaching that issue, we explain the basis of our
jurisdiction over this interlocutory appeal. OIC claims that
as a federal agency it is immune from criminal contempt
charges. It is well established that "[t]he United States, as
sovereign, is immune from suit save as it consents to be sued
..., and the terms of its consent to be sued in any court
define that court's jurisdiction to entertain the suit." United
States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omit-
ted). Based on its claim of sovereign immunity, OIC con-
tends that the district court's ruling is immediately appeal-
able as a collateral order. We agree.
In order to qualify as a collateral order, the challenged
order must "conclusively determine the disputed question,
resolve an important issue completely separate from the
merits of the action, and be effectively unreviewable on
appeal from a final judgment." Coopers & Lybrand v. Live-
say, 437 U.S. 463, 468 (1978). Here, the district court failed
to respond to OIC's motion to vacate and allowed to stand its
order requiring OIC to appear as a criminal defendant at a
status conference. Given these circumstances, we understand
the district court to have conclusively rejected OIC's claim of
immunity. That determination resolves an important issue
separate from the merits of the contempt charge.
As to the remaining factor, federal sovereign immunity is
an immunity from suit, not simply a defense to liability on the
merits. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Con-
sequently, the right to be free from the burdens of trial is
effectively unreviewable on appeal from a final judgment.
See, e.g., Midland Asphalt Corp. v. United States, 489 U.S.
794, 800-01 (1989) ("[D]eprivation of the right not to be tried
satisfies the ... requirement of being 'effectively unreview-
able on appeal from a final judgment.' "). Although the
Seventh Circuit has concluded in a civil case that the federal
government, as opposed to a state or foreign sovereign, does
not have a right to an interlocutory appeal based on a claim of
sovereign immunity, see Pullman Constr. Indus., Inc. v.
United States, 23 F.3d 1166, 1169 (7th Cir. 1994); see also
Alaska v. United States, 64 F.3d 1352, 1355-57 (9th Cir. 1995)
(following Pullman), the Seventh Circuit based its decision in
large part on the premise that the Administrative Procedure
Act (APA), 5 U.S.C. s 702, waives federal sovereign immunity
for equitable relief.4 As discussed below, it is far from clear
that Congress has waived federal sovereign immunity in the
context of criminal contempt. We think that OIC's substan-
tial claim of immunity from the proceedings ordered by the
district court suffices to entitle OIC to an interlocutory
appeal.
III.
In deciding that the federal government was not entitled to
an interlocutory appeal based on sovereign immunity, the
Seventh Circuit broadly stated: "Now that 5 U.S.C. s 702
exposes the United States to equitable relief,5 it is difficult to
__________
4 That section of the APA provides in relevant part:
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking
relief other than money damages and stating a claim that an
agency or an officer or employee thereof acted ... in an official
capacity or under color of legal authority shall not be dismissed
nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable
party.
5 But cf. Department of the Army v. Blue Fox, Inc., 119 S. Ct.
687, 691 (1999) (Section 702 makes distinction between specific relief
speak of federal sovereign immunity as a 'right not to be
sued.' " Pullman, 23 F.3d at 1168. It concluded that "[f]ed-
eral sovereign immunity today is nothing but a condensed
way to refer to the fact that monetary relief is permissible
only to the extent Congress has authorized it.... " Id. The
Ninth Circuit agreed that "federal sovereign immunity [is]
more accurately considered a right to prevail at trial, i.e., a
defense to payment of damages." Alaska, 64 F.3d at 1355 (emphasis in original).6
We rather doubt that federal sovereign immunity is so
limited, especially in the unique circumstances presented
here. "A waiver of the Federal Government's sovereign im-
munity must be unequivocally expressed in [the] statutory
text." Lane v. Pena, 518 U.S. 187, 192 (1996). We know of
no statutory provision expressly waiving federal sovereign
immunity from criminal contempt proceedings.
We need not decide this issue of first impression, howev-
er, because there is another ground upon which we can
dispose of this case that does not raise constitutional con-
cerns.7 As we recently concluded, although a federal court
__________
and substitute relief, not equitable and nonequitable categories of
remedies).
6 There are cases suggesting otherwise. In the civil context,
the Fifth Circuit has held that the United States is immune from
suit under Rule 6(e), see McQueen v. Bullock, 907 F.2d 1544 (5th
Cir.1990), and the Eighth Circuit has held that the United States
has not waived sovereign immunity for civil contempt under 18
U.S.C. s 401, which gives the court power to punish contempt by
fine or imprisonment, see Coleman v. Espy, 986 F.2d 1184 (8th
Cir.1993). Neither of these cases, however, takes into account the
waiver of immunity in 5 U.S.C. s 702. Cf. Armstrong v. Executive
Office of the President, 821 F. Supp. 761 (D.D.C) (discussing waiver
in 5 U.S.C. s 702, holding United States in civil contempt of court,
and imposing coercive fines), rev'd on other grounds, 1 F.3d 1274 (D.C. Cir. 1993).
7 We assume federal sovereign immunity "is derived from
article III, section 2, of the Constitution," Bartlett ex rel. Neuman
v. Bowen, 824 F.2d 1240, 1248 (D.C. Cir.1987) (joint statement
generally must determine whether it has jurisdiction over a
case before reaching its merits, see Steel Co. v. Citizens for
a Better Env't, 118 S. Ct. 1003, 1012 (1998), "a less than pure
jurisdictional question, need not be decided before a merits
question." United States ex rel. Long v. SCS Business &
Technical Inst., Inc., 173 F.3d 890, 894 (D.C. Cir. 1999)
(supplemental opinion) (Eleventh Amendment immunity is-
sue need not be decided before merits); accord Parella v.
Retirement Bd. of the Rhode Island Employees' Retirement
Sys., 173 F.3d 46 (1st Cir. 1999); but see United States ex
rel. Foulds v. Texas Tech Univ., 171 F.3d 279 (5th Cir.
1999); Seaborn v. Florida Dep't of Corrections, 143 F.3d
1405 (1st Cir. 1998), cert. denied, 119 S. Ct. 1038 (1999).
Federal sovereign immunity, like the state sovereign immu-
nity at issue in Long, differs from the classic "jurisdictional"
limitations of Article III in that immunity can be waived.
See FDIC v. Meyer, 510 U.S. at 475 ("Absent a waiver,
sovereign immunity shields the Federal Government and its
agencies from suit.") (emphasis added); Idaho v. Coeur d'Al-
ene Tribe of Idaho, 521 U.S. 261, 267 (1997) ("The [Elev-
enth] Amendment ... enacts a sovereign immunity from
suit, rather than a nonwaivable limit on the Federal Judicia-
ry's subject-matter jurisdiction."). Given the "quasi-
jurisdictional or 'hybrid' status," Long, 173 F.3d at 893, of
federal sovereign immunity, we are not required to decide
that issue before the merits. Moreover, taking pendent
jurisdiction and disposing of this case on the merits has the
added virtues of avoiding a constitutional issue of first im-
pression, see Rendall-Speranza v. Nassim, 107 F.3d 913 (D.C. Cir. 1997) (allowing interlocutory appeal based on for-
eign sovereign immunity claim, but declining to decide im-
munity issue, which was both difficult and implicated foreign
relations), while providing much needed clarification on an
important issue--that is, the proper scope of Rule 6(e)--that
__________
dissenting from the vacatur of orders and from the denials of
rehearing en banc), although there is some debate over whether it
is a constitutional doctrine and, if so, its source in the Constitution,
see Scott C. Idleman, The Demise of Hypothetical Jurisdiction in
the Federal Courts, 52 Vand. L. Rev. 235, 349 n.354 (1999).
has arisen in this court on several occasions, and is likely to
recur.
IV.
Turning, then, to the merits of this case, we conclude that
the disclosures made in the New York Times article do not
constitute a prima facie violation of Rule 6(e). A prima facie
violation based on a news report is established by showing
that the report discloses "matters occurring before the grand
jury" and indicates that sources of the information include
government attorneys. See Barry v. United States, 865 F.2d
1317, 1321 (D.C. Cir. 1989). Because OIC has withdrawn its
argument that none of its attorneys was the source of the
disclosures in the New York Times article at issue here, the
only remaining issue is whether those disclosures qualify as
"matters occurring before the grand jury." Fed. R. Crim. P.
6(e)(2).8
The district court concluded that only one excerpt from the
New York Times article constituted a prima facie violation of
Rule 6(e). That excerpt, quoted in full supra at __, disclosed
the desire of some OIC prosecutors to seek, not long after the
conclusion of the Senate trial, an indictment of Mr. Clinton on
perjury and obstruction of justice charges, including lying
under oath in his deposition in the Paula Jones matter and in
his grand jury testimony. These statements, according to the
district court, reveal a specific time frame for seeking an
indictment, the details of a likely indictment, and the direction
a group of prosecutors within OIC believes the grand jury
investigation should take. Not surprisingly, Mr. Clinton and
the White House agree with the district court's expansive
reading of Rule 6(e). OIC takes a narrow view of the Rule's
coverage, arguing that matters occurring outside the physical
presence of the grand jury are covered only if they reveal
grand jury matters. DOJ generally supports OIC with re-
__________
8 OIC contends that as an entity rather than an individual, it is
not subject to Rule 6(e). It is unnecessary to decide this issue
given our conclusion that there is no prima facie violation of Rule
6(e).
spect to the Rule's coverage, but emphasizes the importance
of the context and concreteness of disclosures.
The key to the district court's reasoning is its reliance on
this court's definition of "matters occurring before the grand
jury." In In re Motions of Dow Jones & Co., 142 F.3d 496,
500 (D.C. Cir. ), cert. denied, 119 S. Ct. 60 (1998), we noted
that this phrase encompasses "not only what has occurred
and what is occurring, but also what is likely to occur,"
including "the identities of witnesses or jurors, the substance
of testimony as well as actual transcripts, the strategy or
direction of the investigation, the deliberations or questions of
jurors, and the like." Id. (internal quotation omitted). In the
earlier contempt proceeding against Independent Counsel
Starr, however, we cautioned the district court about "the
problematic nature of applying so broad a definition, especial-
ly as it relates to the 'strategy or direction of the investiga-
tion,' to the inquiry as to whether a government attorney has
made unauthorized disclosures." In re Sealed Case No. 98-
3077, 151 F.3d at 1071 n.12. Despite the seemingly broad
nature of the statements in Dow Jones, we have never read
Rule 6(e) to require that a "veil of secrecy be drawn over all
matters occurring in the world that happen to be investigated
by a grand jury." Securities & Exch. Comm'n v. Dresser
Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc).
Indeed, we have said that "[t]he disclosure of information
'coincidentally before the grand jury [which can] be revealed
in such a manner that its revelation would not elucidate the
inner workings of the grand jury' is not prohibited." Senate
of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574,
582 (D.C. Cir. 1987)(quoting Fund for Constitutional Gov't v.
National Archives and Records Serv., 656 F.2d 856, 870 (D.C.
Cir. 1981)). Thus, the phrases "likely to occur" and "strategy
and direction" must be read in light of the text of Rule 6(e)--
which limits the Rule's coverage to "matters occurring before
the grand jury"--as well as the purposes of the Rule.
As we have recited on many occasions,
Rule 6(e) ... protects several interests of the criminal
justice system: "First, if preindictment proceedings were
made public, many prospective witnesses would be hesi-
tant to come forward voluntarily, knowing that those
against whom they testify would be aware of that testi-
mony. 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. Fi-
nally, 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."
In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C.
Cir.1998)(quoting Douglas Oil Co. v. Petrol Stops Northwest,
441 U.S. 211, 219 (1979)); see also Fund for Constitutional
Gov't, 656 F.2d at 869 (same). These purposes, as well as the
text of the Rule itself, reflect the need to preserve the secrecy
of the grand jury proceedings themselves. It is therefore
necessary to differentiate between statements by a prosecu-
tor's office with respect to its own investigation, and state-
ments by a prosecutor's office with respect to a grand jury's
investigation, a distinction of the utmost significance upon
which several circuits have already remarked. See, e.g.,
United States v. Rioux, 97 F.3d 648, 662 (2d Cir.1996)("Most
of the media surrounding the Rioux investigation ... dis-
cussed federal 'investigations,' without actually discussing
matters before the grand jury."); In re Grand Jury Subpoe-
na, 920 F.2d 235, 242 (4th Cir.1990) ("[I]nformation produced
by criminal investigations paralleling grand jury investiga-
tions does not constitute matters 'occurring before the grand
jury' if the parallel investigation was truly independent of the
grand jury proceedings."); Blalock v. United States, 844 F.2d
1546, 1551 (11th Cir.1988) ("[T]he agents could not have
violated Rule 6(e)(2) merely by allowing the Georgia Power
investigators to be present during the questioning of poten-
tial grand jury witnesses.... To have violated Rule 6(e)(2)
... the agents must have disclosed to the Georgia Power
investigators information revealing what had transpired, or
will transpire, before the grand jury.") (emphasis added); In
re Grand Jury Investigation ["Lance"], 610 F.2d 202, 217
(5th Cir.1980) ("[T]he disclosure of information obtained from
a source independent of the grand jury proceedings, such as a
prior government investigation, does not violate Rule 6(e).").
Information actually presented to the grand jury is core
Rule 6(e) material that is afforded the broadest protection
from disclosure. Prosecutors' statements about their investi-
gations, however, implicate the Rule only when they directly
reveal grand jury matters. To be sure, we have recognized
that Rule 6(e) would be easily evaded if a prosecutor could
with impunity discuss with the press testimony about to be
presented to a grand jury, so long as it had not yet occurred.
Accordingly, we have read Rule 6(e) to cover matters "likely
to occur." And even a discussion of "strategy and direction
of the investigation" could include references to not yet
delivered but clearly anticipated testimony. See Lance, 610
F.2d at 216-17 and n.4. But that does not mean that any
discussion of an investigation is violative of Rule 6(e). In-
deed, the district court's Local Rule 308(b)(2), which governs
attorney conduct in grand jury matters, recognizes that pros-
ecutors often have a legitimate interest in revealing aspects of
their investigations "to inform the public that the investiga-
tion is underway, to describe the general scope of the investi-
gation, to obtain assistance in the apprehension of a suspect,
to warn the public of any dangers, or otherwise aid in the
investigation."
It may often be the case, however, that disclosures by the
prosecution referencing its own investigation should not be
made for tactical reasons, or are in fact prohibited by other
Rules or ethical guidelines. For instance, prosecutors may be
prohibited by internal guidelines, see, e.g., United States
Attorney Manual s 1-7.530, from discussing the strategy or
direction of their investigation before an indictment is
sought.9 This would serve one of the same purposes as Rule
__________
9 But see Eric H. Holder and Kevin A. Ohlson, Dealing with
the Media in High-Profile White Collar Cases: The Prosecutor's
Dilemma, in White Collar Crime, at B-1, B-1 to B-2 (1995) ("[I]n
cases involving well-known people, the public has a right to be kept
6(e): protecting the reputation of innocent suspects. But a
court may not use Rule 6(e) to generally regulate prosecutori-
al statements to the press. The purpose of the Rule is only
to protect the secrecy of grand jury proceedings.
Thus, internal deliberations of prosecutors that do not
directly reveal grand jury proceedings are not Rule 6(e)
material. As the Fifth Circuit stated in circumstances similar
to those presented here,
[a] discussion of actions taken by government attor-
neys or officials--e.g., a recommendation by the Justice
Department attorneys to department officials that an
indictment be sought against an individual--does not
reveal any information about matters occurring before
the grand jury. Nor does a statement of opinion as to an
individual's potential criminal liability violate the dictates
of Rule 6(e). This is so even though the opinion might be
based on knowledge of the grand jury proceedings, pro-
vided, of course, the statement does not reveal the grand
jury information on which it is based.
Lance, 610 F.2d at 217; accord United States v. Smith, 787
F.2d 111, 115 (3d Cir. 1986)("We agree with the Fifth Circuit
that a statement of opinion by a Justice Department attorney
as to an individual's potential criminal liability does not
violate the dictates of Rule 6(e)...."). It may be thought
that when such deliberations include a discussion of whether
an indictment should be sought, or whether a particular
individual is potentially criminally liable, the deliberations
have crossed into the realm of Rule 6(e) material. This
ignores, however, the requirement that the matter occur
__________
reasonably informed about what steps are being taken to pursue
allegations of wrongdoing so that they can determine whether
prosecutors are applying the law equally to all citizens. This point
has become particularly pertinent in recent years because powerful
figures increasingly seem to characterize criminal investigations of
their alleged illegal conduct as 'political witch hunts.' This type of
epithet only serves to unfairly impugn the motives of prosecutors
and to undermine our legal system, and should not go unan-
swered.").
before the grand jury. Where the reported deliberations do
not reveal that an indictment has been sought or will be
sought, ordinarily they will not reveal anything definite
enough to come within the scope of Rule 6(e).
For these reasons, the disclosure that a group of OIC
prosecutors "believe" that an indictment should be brought at
the end of the impeachment proceedings does not on its face,
or in the context of the article as a whole, violate Rule 6(e).10
We acknowledge, as did OIC, that such statements are trou-
bling, for they have the potential to damage the reputation of
innocent suspects. But bare statements that some assistant
prosecutors in OIC wish to seek an indictment do not impli-
cate the grand jury; the prosecutors may not even be basing
their opinion on information presented to a grand jury.
The fact that the disclosure also reveals a time period for
seeking the indictment of "not long after the Senate trial
concludes" does not in any way indicate what is "likely to
occur" before the grand jury within the meaning of Rule 6(e).
That disclosure reflects nothing more than a desire on the
part of some OIC prosecutors to seek an indictment at that
time, not a decision to do so. The general uncertainty as to
whether an indictment would in fact be sought (according to
the article, only some prosecutors in OIC thought one should
be) leads us to conclude that this portion of the article did not
reveal anything that was "occurring before the grand jury."
Nor does it violate the Rule to state the general grounds
for such an indictment--here, lying under oath in a deposition
and before the grand jury--where no secret grand jury
material is revealed. In ordinary circumstances, Rule 6(e)
covers the disclosure of the names of grand jury witnesses.
Therefore, the statement that members of OIC wished to
seek an indictment based on Mr. Clinton's alleged perjury
before a grand jury would ordinarily be Rule 6(e) material.
In this case, however, we take judicial notice that the Presi-
dent's status as a witness before the grand jury was a matter
__________
10 Indeed, the article stated that Independent Counsel Starr
had not himself made any decision on whether to bring an indict-
ment.
of widespread public knowledge well before the New York
Times article at issue in this case was written; the President
himself went on national television the day of his testimony to
reveal this fact. Cf. Dow Jones, 142 F.3d at 505 ("Carter's
identity as a person subpoenaed to appear before the grand
jury has [lost its character as 6(e) material] ... because
Carter's attorney decided to reveal this fact to the public.").
Where the general public is already aware of the information
contained in the prosecutor's statement, there is no additional
harm in the prosecutor referring to such information.11 See
In Re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994) ("There
must come a time ... when information is sufficiently widely
known that it has lost its character as Rule 6(e) material.
The purpose in Rule 6(e) is to preserve secrecy. Information
widely known is not secret."); see also In re Petition of Craig
v. United States, 131 F.3d 99, 107 (2d Cir. 1997) ("[T]he
extent to which the grand jury material in a particular case
has been made public is clearly relevant because even partial
previous disclosure often undercuts many of the reasons for
secrecy.").12 Therefore, it cannot be said that OIC "disclosed"
the name of a grand jury witness, in violation of Rule 6(e), by
referring to the President's grand jury testimony.13
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11 The prosecutor must still be careful, of course, when making
such statements not to reveal some aspect of the grand jury
investigation which is itself still cloaked in secrecy.
12 We agree with DOJ that consideration of whether material
presumptively within the scope of Rule 6(e) has lost its secrecy
should be considered at the prima facie stage. Here, the question
is easily answered by reference to matters of which the court may
take judicial notice, therefore there is no need for OIC to be put to
the burden and distraction of an evidentiary hearing to rebut the
allegations of a Rule 6(e) violation. See In re Sealed Case No. 98-
3077, 151 F.3d at 1075 (once prima facie case established, govern-
ment required to "come forward with evidence, in whatever form
the district court requires (including affidavits, depositions, produc-
tion of documents, or live testimony)").
13 Of course, a prosecutor is not free to leak grand jury
material and then make a self serving claim that the matter is no
longer secret. Cf. In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)
Similarly, it would ordinarily be a violation of Rule 6(e) to
disclose that a grand jury is investigating a particular person.
Thus, the statement that a grand jury is "hearing the case
against Mr. Clinton" would be covered by Rule 6(e) if it were
not for the fact that the New York Times article did not
reveal any secret, for it was already common knowledge well
before January 31, 1999, that a grand jury was investigating
alleged perjury and obstruction of justice by the President.
Once again, the President's appearance on national television
confirmed as much.
V.
In light of our conclusion that the excerpt from the New
York Times article does not constitute a prima facie violation
of Rule 6(e), we reverse and remand with instructions to
dismiss the Rule 6(e) contempt proceedings against OIC.
Because we have granted OIC's request for summary rever-
sal, we dismiss as moot the alternative request for a stay, as
well as the consolidated petition for mandamus. The admin-
istrative stay is lifted.
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("We do not intend to formulate a rule that once a leak of Rule 6(e)
material has occurred, government attorneys are free to ignore the
pre-existing bond of secrecy.").