838 F.2d 476 (D.C. Cir. 1988), 87-5261, In re Sealed Case

Docket Nº:87-5261, 87-5264 and 87-5265.
Citation:838 F.2d 476
Party Name:In re SEALED CASE (Three Cases).
Case Date:January 22, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 476

838 F.2d 476 (D.C. Cir. 1988)

In re SEALED CASE (Three Cases).

Nos. 87-5261, 87-5264 and 87-5265.

United States Court of Appeals, District of Columbia Circuit

January 22, 1988

Argued Sept. 16, 1987.

As Amended Feb. 5, 1988.

Probable Jurisdiction Noted Feb. 22, 1988.

See 108 S.Ct. 1010.

Page 477

Appeals from the United States District Court for the District of columbia.

Barry S. Simon with whom Brendan V. Sullivan, Jr., Nicole K. Seligman, Jacob A. Stein and Robert F. Muse, Washington, D.C., were on the joint brief, for appellants in 87-5261 and 87-5265.

Thomas S. Martin with whom Anthony C. Epstein, David E. Zerhusen, David W. DeBruin and Carl S. Nadler, Washington, D.C., were on the brief, for appellant in 87-5264.

Earl C. Dudley, Jr., Deputy Independent Counsel, with whom Alexia Morrison, Independent Counsel and Richard C. Otto, Deputy Independent Counsel, Washington, D.C., were on the brief, for appellee in 87-5261, 87-5264 and 87-5265.

Douglas N. Letter, Dept. of Justice, with whom James M. Spears, Acting Asst. Atty. Gen., Robert J. Cynkar, Deputy Asst. Atty. Gen., Robert E. Kopp, William Kanter, Neil Koslowe, Jay S. Bybee, Dept. of Justice, Washington, D.C., were on the brief, for amicus curiae, U.S., urging reversal.

Steven R. Ross, General Counsel to the Clerk, U.S. House of Representatives, with whom Charles Tiefer, Deputy General Counsel, Michael L. Murray and Janina Jaruzelski, Asst Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., were on the brief, for amicus curiae, Speaker and Bipartisan Leadership Group of the U.S. House of Representatives, urging affirmance.

Herbert J. Miller, Jr., Randall J. Turk and Stephen L. Braga, Washington, D.C., were on the brief, for amicus curiae, Michael K. Deaver, urging reversal.

Eric R. Glitzenstein and Alan B. Morrison, Washington, D.C., were on the brief, for amicus curiae, Public Citizen, urging affirmance.

Donald J. Simon, Washington, D.C., Cass Sunstein, Laurence H. Tribe, Cambridge, Mass., Archibald Cox and Philip B. Heyman, Washington, D.C., were on the brief, for amicus curiae, Common Cause, urging affirmance.

Rex E. Lee, Irvin B. Nathan, Washington, D.C., and Robert MacCrate, New York City, were on the brief, for amicus curiae, American Bar Ass'n, urging affirmance.

Lawrence E. Walsh, Independent Counsel, Paul L. Friedman, Guy Miller Struve and James E. McCollum, Jr., Associate Counsel, Washington, D.C., were on the brief, for amicus curiae, Independent Counsel Lawrence E. Walsh, urging affirmance.

Michael Davidson, Senate Legal Counsel, Ken U. Benjamin, Jr., Deputy Senate Legal Counsel, Morgan J. Frankel and Susan B. Fine, Asst. Senate Legal Counsel, U.S. Senate, Washington, D.C., were on the brief, for amicus curiae, U.S. Senate, urging affirmance.


Page 478

SILBERMAN, Circuit Judge:

Three former government officials, Theodore B. Olson, previously Assistant Attorney General, Office of Legal Counsel, Carol E. Dinkins, previously Assistant Attorney General, Lands Division, 1 and Edward C. Schmults, previously Deputy Attorney General of the United States, appeal from a district court judgment rejecting their challenge to the authority of a federal prosecutor, the independent counsel, appointed under the provisions of the Ethics in Government Act of 1978, 28 U.S.C. Secs. 49, 591-598 (1982 & Supp. III) (the "Act"), to issue subpoenas compelling the testimony of these appellants before a grand jury concerning actions taken while they served in their governmental positions. 2 Appellants contend that the Act on which the independent counsel's authority is based is unconstitutional. We agree with appellants, and so we reverse the district court order holding appellants in contempt for failing to answer the subpoenas.


The criminal investigation involved in this case arose out of a heated dispute over document production between the Executive and Legislative Branches. In September 1982, two subcommittees of the House of Representatives requested the Environmental Protection Agency ("EPA") to provide them with internal EPA documents pertaining to the clean-up of hazardous waste sites. The House was concerned that the Reagan administration was expending funds so as to aid Republican candidates in the 1982 Senate elections. At the direction of the Department of Justice, the EPA made some documents available but refused to grant access to enforcement-sensitive documents on the grounds that their release would interfere with law enforcement efforts. After negotiations between the two branches failed, the two subcommittees issued subpoenas to the Administrator of the EPA. The Administrator, invoking executive privilege by order of the President, refused to comply with the subpoenas. The House of Representatives responded by citing the Administrator for contempt, at which point the Administrator and the United States together filed a lawsuit against the House. Eventually, by March of 1983, the Administrator and the two subcommittees reached agreement on document production.

Ancillary to this running battle between Congress and the Executive, a subcommittee of the House Judiciary Committee began an investigation into the Justice Department's role in the EPA document controversy. On March 10, 1983, as part of that investigation, the subcommittee heard testimony from Assistant Attorney General Olson. At the completion of the investigation, the Judiciary Committee issued a lengthy report, over the vigorous dissent of the Republican members of the Committee, containing charges of serious wrongdoing by senior Department of Justice officials. REPORT ON INVESTIGATION OF THE ROLE OF THE DEPARTMENT OF JUSTICE IN THE WITHHOLDING OF ENVIRONMENTAL PROTECTION AGENCY DOCUMENTS FROM CONGRESS IN 1982-83, H.R.REP. NO. 435, 99th Cong., 1st Sess. (1985).

Based on this report, in December 1985 the Judiciary Committee requested the Attorney General to conduct a preliminary investigation, as required by the independent counsel provisions of the Ethics in Government Act, into possible violations of federal law on the part of several administration officials who appeared before the Judiciary Committee, including former Assistant Attorney General Olson. The Act applies to the President and Vice President, the Director and Deputy Director of the Central Intelligence Agency, cabinet-level officials, various other officials in the Department of Justice and in the Executive Office of the President, and high level officials

Page 479

on the President's campaign committee. 28 U.S.C. Sec. 591.

Under the Act, the Attorney General must begin an investigation, to be completed within ninety days, if he finds the information of wrongdoing given him "sufficient to constitute grounds to investigate." 28 U.S.C. Sec. 592. During this preliminary investigation, the Attorney General's investigative resources are severely limited; he has "no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas." Id. If the Attorney General "finds reasonable grounds to believe that further investigation is warranted," then he must refer the matter to the Independent Counsel Division of the United States Court of Appeals for the District of Columbia Circuit (the "Special Court"). 3 Thus, at this initial investigatory stage, the Attorney General's role is quite restricted--he is directed to decide not if prosecution is probably warranted but merely whether more investigation is needed, and in making this limited determination he is denied the usual truth-finding tools of a prosecutor.

On April 10, 1986 the Attorney General asked the Special Court to appoint an independent counsel to investigate

[w]hether the conduct of former Assistant Attorney General Theodore Olson in giving testimony at a hearing of the Subcommittee on Monopolies and Commercial Law of the House Judiciary Committee on March 10, 1983, and later revising that testimony, regarding the completeness of the Office of Legal Counsel's response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. Sec. 1505, Sec. 1001, or any other provision of federal criminal law.

Report of the Attorney General Pursuant to 28 U.S.C. Sec. 592(c) (1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report ("Report of Attorney General") at 2-3 (footnote omitted). The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." Id. at 11.

The Judiciary Committee's request for an investigation also pointed to possible wrongdoing by Edward Schmults and Carol Dinkins. The Attorney General concluded, however, that there were no reasonable grounds to believe that further investigation of these allegations was warranted and so did not refer these matters to the independent counsel. Id. at 22, 47-48. In deciding whether to refer a matter to the independent counsel, the Attorney General is required by Sec. 592(c)(1) of the Act to "comply with the written or other established policies of the Department of Justice with respect to the enforcement of criminal laws." The decision concerning Schmults and Dinkins was made in accordance with a Department of Justice policy that criminal prosecutions not be commenced "if there is no reasonable prospect that an unbiased jury would return a criminal conviction." Report of the Attorney General at 26.

In April of 1986 the Special Court appointed James McKay as independent counsel. Shortly thereafter, upon McKay's...

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