In re: Sealed Case

• Decision Date: 07 September 1999
• Docket Number: Nos. 99-3091,No. 99-3091,99-3092,99-3091,s. 99-3091
• Citation: 192 F.3d 995
• Parties: (D.C. Cir. 1999) In re: Sealed Case(Office of Independent Counsel Contempt Proceeding)
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 995

192 F.3d 995 (D.C. Cir. 1999)

In re: Sealed Case No. 99-3091(Office of Independent Counsel Contempt Proceeding)

Nos. 99-3091, 99-3092

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided September 7, 1999

Redacted Version Issued September 13, 1999

Rehearing En Banc Denied Nov. 9, 1999^*

Appeal from the United States District Court for the District of Columbia(No. 99ms00038)

Kenneth W. Starr, Independent Counsel, Paul Rosenzweig, Associate Independent Counsel, Donald T. Bucklin, and Andrew 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.

ON A MOTION FOR SUMMARY REVERSAL OR STAY

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 relevant 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 whether 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 Kenneth W. Starr asked the Federal Bureau of Investigation to provide OIC assistance in conducting an internal leak investigation. The Department of Justice authorized the FBI to do so, and as a result of the investigation, [

]² Consequently, OIC took administrative 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 developments, 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 maintain that the information was not protected by Rule 6(e).

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 resolved through a single contempt proceeding involving both Mr. Bakaly and the OIC." Although the district court decided 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 scheduled 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 because 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 contempt 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 proceedings were scheduled to commence immediately, we issued 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 omitted). Based on its claim of sovereign immunity, OIC contends that the district court's ruling is immediately appealable 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. Livesay, 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...