Motions of Dow Jones & Co., In re

• Decision Date: 05 May 1998
• Docket Number: Nos. 98-3033 and 98-3034,s. 98-3033 and 98-3034
• Parties: In re: MOTIONS OF DOW JONES & COMPANY, INC., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 496

142 F.3d 496

330 U.S.App.D.C. 48

In re: MOTIONS OF DOW JONES & COMPANY, INC., et al.

Nos. 98-3033 and 98-3034.

United States Court of Appeals District of Columbia Circuit.

Argued April 8, 1998.

Decided May 5, 1998.

Appeals from the United States District Court for the District of Columbia (98ms00058) (98ms00087).

Theodore J. Boutrous, Jr. argued the cause and filed the briefs for appellants.

W. Neil Eggleston argued the cause for appellee The White House. With him on the brief was Charles F.C. Ruff, Counsel to the President.

David E. Kendall argued the cause for appellee President William J. Clinton. With him on the brief was Max Stier.

Jamie S. Gardner argued the cause for appellee Francis D. Carter. With her on the brief was Charles J. Ogletree, Jr.

Nathaniel H. Speights argued the cause and filed the brief for appellee Monica Lewinsky.

Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.

RANDOLPH, Circuit Judge:

On January 16, 1998, at the request of the Attorney General, a special division of this court issued an order expanding the prosecutorial jurisdiction of Independent Counsel Kenneth W. Starr. ¹ The order--which the special division released to the public--authorized Starr to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law ... in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton"; and "to investigate any person or entity who has engaged in unlawful conspiracy or who has aided or abetted any federal offense, as necessary to resolve" the first matter.

Thereafter, a grand jury here began receiving evidence about Monica Lewinsky and President Clinton, and others, or so appellants in this case tell us. Since mid-January the press has staked out the courthouse, photographing and attempting to intercept anyone who, because of his or her suspected status as witness or lawyer in the investigation, might shed light on the grand jury's progress. Some individuals have paused to give their versions of what transpired during their grand jury appearances; others have refused to be interviewed or to give a public statement.

The press, naturally desiring more information, moved for access to district court hearings and pleadings related to the grand jury's investigation. ² Under Rule 407(3) of the United States District Court for the District of Columbia, the Chief Judge shall "hear and determine all matters relating to proceedings before the grand jury." D.D.C.R. 407(3). Such "ancillary" matters may arise for a number of reasons. Grand juries summon witnesses and documents with subpoenas. Witnesses, including custodians of documents, report on the scheduled date not to a courtroom, but to a hallway outside the room where the grand jury is sitting. The witness must enter the grand jury room alone, without his or her lawyer. No judge presides and none is present. See SARA S. BEALE ET AL., GRAND JURY LAW AND PRACTICE § 4.10, at 4-44 (2d ed.1997). Inside the grand jury room are sixteen to twenty-three grand jurors, one or more prosecuting attorneys, and a court reporter. 18 U.S.C. § 3321; FED.R.CRIM.P. 6(a)(1), (d) & (e). The witness is sworn, and questioning commences, all to the end of determining whether "there is adequate basis for bringing a criminal charge." United States v. Williams, 504 U.S. 36, 51, 112 S.Ct. 1735, 1744, 118 L.Ed.2d 352 (1992). Other than witnesses, each person present in the grand jury room or otherwise assisting the prosecutor is forbidden from disclosing "matters occurring before the grand jury," FED.R.CRIM.P. 6(e)(2) & (3)(A)(ii).

"Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length." Williams, 504 U.S. at 47, 112 S.Ct. at 1742. Still, at many points, from service of the subpoena through the completion of the witness's grand jury appearance, judicial proceedings relating to the grand jury may take place. The judge may be called upon to decide a witness's motion to postpone the date of testimony or to quash the subpoena. If a witness refuses to answer questions on the basis of a testimonial privilege, such as attorney-client or husband-wife, the grand jury may seek a court order compelling the witness to answer. This may be done forthwith, through an oral presentation to the court, see, e.g., Levine v. United States, 362 U.S. 610, 612, 80 S.Ct. 1038, 1040-41, 4 L.Ed.2d 989 (1960), or upon the filing of pleadings, followed by a hearing. A hearing will also be needed if a witness asserts his or her privilege against self-incrimination, and the prosecutor seeks an order from the court granting the witness immunity. See 18 U.S.C. § 6003(a).

These appeals are from the Chief Judge's denial of motions concerning two such ancillary proceedings and from her denial of a broader motion to govern access to all future ancillary proceedings stemming from the grand jury's investigation. ³ In chronological order, the press filed its first motion on March 5th, seeking "access to any and all proceedings and papers ... as well as any orders or rulings issued by the Court concerning assertions by Francis D. Carter of objections to the grand jury subpoena." The motion also requested "access to transcripts" of hearings to the extent they had "already occurred." (Carter, we are told, was an attorney for Monica Lewinsky.) Next, on March 9th, the press moved for the establishment of "procedures relating to public access to judicial proceedings and records in connection with the investigation being conducted by Independent Counsel Kenneth W. Starr." On March 11th, the press moved for "access to any hearings, and transcripts of such hearings ... concerning the motion to show cause filed by President Clinton against Independent Counsel Kenneth W. Starr for alleged violations of grand jury secrecy."

We will take up first the motion requesting the Chief Judge to establish procedures governing public access to the hearings and to papers in all of the proceedings relating to the grand jury. Although the press framed its motion in terms of access to proceedings "to resolve privilege claims or other legal issues," it seems mainly interested in proceedings involving the assertions of testimonial privileges in response to grand jury subpoenas, and in President Clinton's motion for an order to show cause why the Office of the Independent Counsel should not be found in contempt. Among other things, the press requested the Chief Judge to provide advance public notice of hearings; to grant its counsel opportunity to be heard regarding closure; and to require "all motions, orders, and other judicial records filed in connection with the grand jury proceeding be docketed on the public record." The Chief Judge ruled that the press had neither a common law nor a First Amendment right of access and declined to adopt "movants' extraordinary procedures." The Chief Judge also found it "inappropriate and contrary to Rule 6(e) to require any materials filed in connection with grand jury proceedings to be docketed on the public record or unsealed without an express order from this Court. Even releasing the matters to be heard by the Court runs the risk of disclosing 'matters occurring before the grand jury.' FED. R. CRIM P. 6(e)." The press maintains that the "blanket closure of judicial proceedings" and the failure to provide "procedural safeguards prior to closure" violate the First Amendment. See Brief for Appellants at 9.

A settled proposition, one the press does not contest, is this: there is no First Amendment right of access to grand jury proceedings. The Fifth Amendment makes the "Grand Jury" an essential element of the federal criminal justice system. A grand jury is a body that conducts its business in private. The Framers knew this as well as we do. "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." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n. 9, 99 S.Ct. 1667, 1672-73 n. 9, 60 L.Ed.2d 156 (1979); see also United States v. Procter & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 985-86, 2 L.Ed.2d 1077 (1958); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240-41, 3 L.Ed.2d 1323 (1959).

The secrecy of grand jury proceedings is today preserved through FED. R.CRIM. P. 6(e). Grand jurors, prosecutors, stenographers and others are forbidden from disclosing "matters occurring before the grand jury." ⁴ This phrase--"matters occurring before the grand jury"--includes not only what has occurred and what is occurring, but also what is likely to occur. Encompassed within the rule of secrecy are "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." SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.1980) (en banc); Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981).

With respect to ancillary judicial proceedings, "the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury." FED. R.CRIM. P. 6(e)(5). ⁵ Furthermore, "records, orders and subpoenas relating to grand jury proceedings shall remain under seal to the extent and for such time as necessary to prevent disclosure of matters occurring before a grand jury." FED. R.CRIM. P. 6(e)(6). The Advisory Committee believed that the rules did "not violate any constitutional right of the public or media to attend" such ancillary proceedings because no such constitutional right exists. FED....