In Re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 16, 1998
No. 98-3069
In Re: Sealed Case No. 98-3069
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BEFORE: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel and Garland, Circuit Judges.
O R D E R
Upon consideration of appellant's Suggestion for Rehearing
In Banc, and the absence of a request by any member of the
court for a vote, it is
ORDERED that the suggestion be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Robert A. Bonner
Deputy Clerk
A statement of Circuit Judge Silberman concurring in the
denial of rehearing in banc is attached.
Circuit Judges Sentelle and Garland did not participate
in this matter.
Silberman, Circuit Judge, concurring in the denial of re-
hearing in banc: This is the first time in 13 years on this
Court that I have seen a petition for rehearing or an appel-
lant's brief that does not state the identity of the party
petitioning or appealing in the caption of the brief. See
Petition for Rehearing and Suggestion for Rehearing In Banc
(cover page) (reprinted in the Appendix to this opinion).
There is a good reason. It is now established beyond dispute
that, under the Ethics in Government Act, the Independent
Counsel stands in place of the Attorney General and repre-
sents the United States in any proceeding within his or her
jurisdiction. See 28 U.S.C. s 594(a) (1994) (providing that the
Independent Counsel has "full power and independent au-
thority to exercise all investigative and prosecutorial func-
tions and powers of the Department of Justice [and] the
Attorney General"). The Independent Counsel's briefs there-
fore are captioned as the briefs of the United States. The
Attorney General, apparently all too aware of this problem,
filed a petition without identifying, in its caption, the party
she is representing. Yet on the first page of the brief she
purports to represent the United States. See Petition for
Rehearing and Suggestion for Rehearing In Banc at 1 ("The
United States, acting through the Attorney General . . . .").
That is analytically impossible. We cannot have two opposing
lawyers before us representing the same named party. See
United States v. ICC, 337 U.S. 426, 430 (1949) (recognizing
general principle that "no person may sue himself"); see also
United States v. Providence Journal Co., 485 U.S. 693, 706
(1988) (finding startling the proposition that "there is more
than one 'United States' that may appear before this Court").
Nor is this simply a matter of captioning. Even if under
certain circumstances it can be thought that two entities of
the executive branch can litigate against themselves under
Article III, see United States v. Nixon, 418 U.S. 683, 694-97
(1974) (holding justiciable a suit between the special prosecu-
tor and the President); United States v. ICC, 337 U.S. at 432(permitting suit between ICC and Attorney General either on
the grounds that private railroads were the real parties in
interest or that the ICC is an independent agency), the
Attorney General lacks prudential standing under the Ethics
in Government Act. That Act provides that the Independent
Counsel replaces the Attorney General with respect to all
matters within the Independent Counsel's prosecutorial juris-
diction. See 28 U.S.C. s 594(a). Indeed, the Act specifically
mandates that the Department of Justice and the Attorney
General "suspend all investigations and proceedings regard-
ing" the subject matter of the Independent Counsel's investi-
gation. See U.S.C. s 597(a). Unless the Independent Coun-
sel agrees in writing to permit the Department of Justice to
continue its involvement in the case, see id.,1 the Attorney
General is permitted to file only an amicus brief in such a
proceeding. See 28 U.S.C. s 597(b). An amicus brief, of
course, would be inadequate here because if the Attorney
General is not permitted to "represent" the United States
(the Treasury Department) neither is any other government
lawyer. It seems clear to me then that no one in the United
States Government, speaking for the government, has stand-
ing to oppose the Independent Counsel in this proceeding,
and, therefore, neither we nor the district court have jurisdic-
tion over this case.2
__________
1 As we have said before, the "principal aim of [section 597(a)]
is to 'prevent[ ] investigations by the Department of Justice which
would duplicate and possibly impede the work of Independent
Counsel.' " United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.
1994) (quoting In Re: Sealed Case, 829 F.2d 50, 56 (D.C. Cir.
1987)). Accordingly, courts have previously rejected the Attorney
General's attempts to appeal decisions that an Independent Counsel
chose not to pursue. See, e.g., United States v. North, 713 F. Supp.
1441, 1441 (D.D.C. 1989) (remarking that the Attorney General's
attempt to appeal was "frivolous and at odds with the purposes of
the laws establishing the Independent Counsel"); see also United
States v. Fernandez, 887 F.2d 465, 469 (4th Cir. 1989) (holding that
Congress intended the special prosecutor to "exercise the power to
appeal with independence from the Department of Justice").
2 See John Q. Barrett, All or Nothing, or Maybe Cooperation:
Attorney General Power, Conduct, and Judgment in Relation to
the Work of an Independent Counsel, 49 Mercer L. Rev. 519, 537 n.
86 (1998) (noting that this court, in an unpublished opinion (of
Judges Wald, Ruth Bader Ginsburg, and myself), dismissed an
appeal of Attorney General Thornburgh in the North case on the
grounds that he had no standing).
That, as should be apparent, means that it is up to the
Independent Counsel--the surrogate Attorney General in this
matter--to decide whether the "privilege" asserted by the
Secret Service as a government entity should be recognized.
It might be thought that it is somewhat anomalous to permit
an Independent Counsel to decide on his or her own whether
the Secret Service should be compelled to testify before a
grand jury investigating the President of the United States.
But the Ethics in Government Act contemplates that an
Independent Counsel--performing the role of Attorney Gen-
eral--would determine the appropriate balance between na-
tional security and law enforcement interests in a particular
case. See s 594(a)(6). Indeed, that was one of the very
reasons this court, see In Re: Sealed Case, 838 F.2d 476, 503
(D.C. Cir. 1988), and later Justice Scalia in dissent, see
Morrison v. Olson, 487 U.S. 654, 708 (1988) (Scalia, J.,
dissenting), thought the statute unconstitutional. But the
Supreme Court majority brushed those concerns aside. So
Congress and the Supreme Court have crossed that bridge.
Of course the President is entitled to personal representa-
tion against the Independent Counsel and it would be open to
him to assert any personal privilege, but it seems even more
farfetched than is the present claim to conclude that he would
have a personal protection privilege--which I suppose is why
the case is postured as it is. But the notion, about which the
panel was dubious, that the newly minted Secret Service
Protection Privilege is being asserted by the Treasury De-
partment, independent of the President, seems to me to be a
constitutional absurdity.3 The Attorney General is, in effect,
acting as the President's counsel under the false guise of
representing the United States, contrary to the whole pur-
pose and structure of the Ethics in Government Act. I am
mindful of the terrible political pressures and strains of
__________
3 See In Re: Sealed Case, 1998 WL 370584, at *6 (D.C. Cir. Jul.
7, 1998). That the supposed privilege furthers the interest of the
Secret Service is not a reason to conclude that, if such a privilege
were recognized, it would belong to the Secret Service and not the
President. After all, the attorney-client privilege very much serves
lawyers' interest, but it can only be asserted by the client.
conscience that bear upon senior political appointees of the
Justice Department when an Independent Counsel (or special
prosecutor) is investigating the President of the United
States. Those strains are surely exacerbated when the Presi-
dent's agents declare "war" on the Independent Counsel.
See, e.g., Meet the Press (NBC television broadcast, Jan. 25,
1998) (interview with James Carville), transcript available in
1998 WL 8609952. (Can it be said that the President of the
United States has declared war on the United States?) The
Act, however, limits the options that the Attorney General
can legally (and honorably) pursue. Litigating against the
Independent Counsel in this case as the representative of the
United States is not among them.4 See United States v.
Wilson, 26 F.3d 142, 150 (D.C. Cir. 1994) (stating that "the
principal aim of the independent counsel provisions is to
guard the court-appointed prosecutor from undue influence
by the Administration in general and the DOJ in particu-
lar ") (emphasis added); see also S. Rep. No. 170, 95th Cong.,
2d Sess. 66 (1977), reprinted in 1978 U.S. Code Cong. &
Admin. News 4216, 4282 ("The whole purpose of [the Act] is
defeated if a special prosecutor is not independent and does
not have clear authority to conduct a criminal investigation
and prosecution without interference, supervision, or control
by the Department of Justice.").5 Although I think the panel
opinion is substantively correct, I would dismiss the case as
outside our jurisdiction.
__________
4 In pleadings before the Supreme Court, filed on the same day
that our order denying rehearing issued, the Department more
forthrightly, if not more persuasively, named Secretary Rubin and
the Director of the United States Secret Service as the named
parties.
5 Quite contrary to the actions of the Justice Department in
this case, the Act specifically mandates that the Justice Department
provide assistance to the Independent Counsel. See 28 U.S.C.
s 594(d)(1).
A p p e n d i x
[ORAL ARGUMENT HEARD ON JUNE 26, 1998]
No. 98-3069
______________________________________________________________________
______________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________________________
IN RE: SEALED CASE
________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
______________________________________
PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING IN BANC
________________________________________
JANET RENO
Attorney General
FRANK W. HUNGER
Assistant Attorney General
STEPHEN W. PRESTON
Deputy Assistant Attorney
General
OF COUNSEL: MARK B. STERN
(202) 514-5089
EDWARD S. KNIGHT MICHAEL S. RAAB
General Counsel (202) 514-4053
U.S. Dep't of Treasury MARIA SIMON
(202) 514-1278
THOMAS E. DOUGHERTY Attorneys, Appellate Staff
Senior Counsel Civil Division
U.S. Secret Service U.S. Department of Justice
601 D Street, N.W., Room 9108
Washington, D.C. 20530-0001
______________________________________________________________________
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