881 F.2d 1088 (D.C. Cir. 1989), 88-5228, North v. Walsh

Docket Nº:88-5228, 88-5322.
Citation:881 F.2d 1088
Party Name:Oliver L. NORTH, Appellant v. Lawrence E. WALSH, in his official capacities as
Case Date:July 25, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1088

881 F.2d 1088 (D.C. Cir. 1989)

Oliver L. NORTH, Appellant


Lawrence E. WALSH, in his official capacities as

"Independent Counsel" and "Independent Counsel:

Iran/Contra," et al.

Nos. 88-5228, 88-5322.

United States Court of Appeals, District of Columbia Circuit.

July 25, 1989

As Amended in No. 88-5228 Aug. 23, 1989.

Argued March 20, 1989.

Page 1089

Appeal from the United States District Court for the District of Columbia (C.A. No. 87-02700).

Paul Mogin, with whom Brendan V. Sullivan, Jr., Washington, D.C., was on the brief, for appellant.

Barry S. Simon, Terrence O'Donnell, and Nicole K. Seligman, Washington, D.C., also entered appearances for appellant.

Geoffrey S. Stewart, Washington, D.C., with whom Lawrence E. Walsh and John Q. Barrett, Washington, D.C., were on the brief, for appellees.

Leonard Schaitman and Mark B. Stern, Attys., Dept. of Justice, Washington, D.C., also entered appearances, for appellees.

Before RUTH BADER GINSBURG and D.H. GINSBURG, Circuit Judges, and KAUFMAN, [*] Senior Judge.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.


Oliver North seeks to obtain, under the Freedom of Information Act (FOIA), various documents from the Office of Independent Counsel (OIC) concerning the OIC's criminal investigation of North's involvement in the Iran/Contra affair. The district court, on two OIC motions for summary judgment, denied North's FOIA requests; that court relied on claim preclusion, issue preclusion, and FOIA exemption 7(A), which excepts from FOIA's disclosure requirements records or information compiled for law enforcement purposes to the extent that production of the records or

Page 1090

information can reasonably be expected to interfere with enforcement proceedings. For the reasons stated herein, we reverse the district court's grants of summary judgment against North, and we remand for further proceedings consistent with the considerations set forth in this opinion.


    1. The Grand Jury Investigation

      On April 7, 1987, a grand jury investigating the Iran/Contra matter issued a subpoena to appellant Oliver North. Alleging the unconstitutionality of the independent counsel provisions of the Ethics in Government Act, 28 U.S.C. Sec. 49, 591-598 (1982 & Supp. V 1987), North moved, unsuccessfully, to quash the subpoena. The OIC then moved for an order requiring North to show cause why he should not be held in contempt for failing to comply with the grand jury subpoena. As part of his opposition to that motion, North had the court clerk issue a civil trial subpoena to Independent Counsel Lawrence E. Walsh demanding the production of sixteen categories of documents. This subpoena sought, inter alia: documents concerning the employment status and responsibilities of individuals on Walsh's staff; rulings or orders, issued by the Special Division of this court responsible for appointing Independent Counsels, dealing with the Iran/Contra investigation or the employment status of OIC staff; documents relating to contacts between the Special Division and Walsh's staff; documents on the applicability to Walsh's staff of certain conflict of interest statutes and regulations; and documents about OIC efforts to delay or prevent Congress' granting North immunity for his testimony about the Iran/Contra affair. Joint Appendix (J.A.) at 74-78.

      On May 8, Chief Judge Aubrey E. Robinson of the United States District Court for the District of Columbia, without resolving North's attack on the constitutionality of the Ethics Act, denied North's plea for enforcement of his civil subpoena and held North in contempt for refusing to comply with the grand jury subpoena. On appeal, this court vacated the contempt order and instructed the district court to rule on the legal authority of the Independent Counsel and his staff, on nonconstitutional grounds if possible. See Order accompanying In re Sealed Case, 827 F.2d 776 (D.C.Cir.1987) (per curiam). On remand, North again sought enforcement of his subpoena to Walsh. Chief Judge Robinson rejected North's request, In re Sealed Case, Misc. No. 87-0139 (D.D.C. June 24, 1987), Tr. at 52-53, upheld the authority of the Independent Counsel under his appointment by the Attorney General 1 without addressing the constitutionality of the Ethics in Government Act, 2 and again directed North to comply with the grand jury subpoena. 3 In re Sealed Case, 666 F.Supp. 231 (D.D.C.), aff'd, 829 F.2d 50 (D.C.Cir.1987).

    2. North's FOIA Action

      On August 10, 1987, North requested twenty-five categories of documents from the OIC under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982 & Supp. IV 1986). Nine of these categories were the same as those North had designated in connection with the grand jury proceeding. J.A. at 74-78. Four other categories concerned the OIC's contacts with the news media and with Congress, and efforts the OIC had made to insulate its staff from exposure to the congressional testimony of North and others given pursuant to grants of immunity. Id. at 268-72. The OIC denied

      Page 1091

      virtually all of North's requests. North then filed an administrative appeal, which the OIC did not resolve within the twenty working days allotted under FOIA. See 5 U.S.C. Sec. 552(a)(6)(A)(ii).

      On October 2, 1987, North commenced the instant FOIA action in the district court. 4 On January 15, 1988, the OIC moved to dismiss or, alternatively, for partial summary judgment, arguing that the doctrines of claim preclusion (res judicata) and issue preclusion (collateral estoppel) prevented North from obtaining through FOIA documents he had been unable to obtain during the grand jury proceeding. North filed a cross-motion for summary judgment on February 12, 1988. The FOIA action was assigned to Judge Louis F. Oberdorfer.

    3. The Criminal Case and Kastigar Hearing

      While the motions for summary judgment in North's FOIA action were pending, on March 16, 1988, North and three co-defendants, John M. Poindexter, Richard V. Secord, and Albert Hakim, were indicted by the grand jury for their roles in the Iran/Contra affair. North's criminal case was assigned to Judge Gerhard A. Gesell. North, Poindexter, and Hakim then announced that they would move jointly to dismiss their indictments on the ground that, in violation of their fifth amendment rights, the prosecutions were informed by testimony each defendant had given before Congress under a grant of immunity. 5 See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that United States government may compel testimony from an unwilling witness by granting immunity from use, in subsequent criminal proceedings, of the compelled testimony and evidence derived from that testimony).

      On March 24, 1988, Judge Gesell stated that he would hold a preliminary hearing on the defendants' expected "Kastigar" motion. On March 30, North, Poindexter, and Hakim made an informal discovery request to the OIC for documents relating to their Kastigar claims. This request concerned the OIC's contacts with the news media and with Congress, and actions taken or procedures employed by the OIC to ensure that the prosecutions were not tainted by the defendants' immunized testimony before Congress. J.A. at 268-72. The Independent Counsel did not comply with the request.

      On April 7, North, Poindexter, and Hakim moved to dismiss the indictments on Kastigar grounds. On April 13, Judge Gesell issued an order stating that he would hold pretrial on April 25 a preliminary hearing to consider "certain limited Kastigar issues": 1) whether the Independent Counsel had taken "appropriate administrative steps" to insulate his staff from the defendants' immunized testimony; 2) whether the grand jury proceedings had been tainted by that testimony; and 3) whether the Independent Counsel intended to call witnesses at trial whose identities the OIC had discovered from that testimony. J.A. at 229-30. Judge Gesell ordered Independent Counsel Walsh to testify at the April 25 hearing about the measures taken to prevent exposure of his staff to immunized testimony and to furnish to defense counsel documents that Walsh intended to rely on "in this limited respect." Id. at 230. Judge Gesell stated that the defense could examine Walsh and inquire into a speech by Walsh relating to the immunity issue. The defendants could also designate one "grand jury witness" about whom they could question Walsh or one of his assistants, and could call witnesses if they filed a brief offer of proof as to each witness' testimony by April 21. Judge Gesell also ordered Walsh to provide the defendants with a list of witnesses the OIC intended to call at trial and to furnish minutes of grand

      Page 1092

      jury sessions for the court's in camera review. Id. at 230.

      All other Kastigar matters, Judge Gesell directed, would be deferred to a final, post-trial Kastigar hearing. He therefore ordered that, pending the conclusion of the trial, there shall be: no questioning of grand jurors; no broad inquiry into the OIC's tactics, investigating techniques, staffing, and work product; no examination into the thought processes or accuracy of statements of proposed witnesses; and no investigation of families, friends, and social acquaintances of OIC staff, witnesses, grand jurors, or classification experts. Id. at 231.

      On April 22, North, Poindexter, and Hakim subpoenaed Walsh to produce thirty categories of documents at the preliminary Kastigar hearing. Id. at 232-43. The subpoena, like the informal discovery request that preceded it, repeated several requests North earlier advanced in his FOIA pleas. The overlapping categories included documents concerning contacts between the OIC and the news media and Congress, and OIC...

To continue reading