Deaver v. Seymour

• Decision Date: 15 June 1987
• Docket Number: No. 87-5056,87-5056
• Citation: 822 F.2d 66
• Parties: Michael K. DEAVER, Appellant, v. Whitney North SEYMOUR, Jr., as Independent Counsel, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 66

822 F.2d 66

261 U.S.App.D.C. 334

Michael K. DEAVER, Appellant, v. Whitney North SEYMOUR, Jr., as Independent Counsel, et al.

No. 87-5056.

United States Court of Appeals, District of Columbia Circuit.

June 15, 1987.

Before SILBERMAN, WILLIAMS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Separate Concurring Statement filed by Circuit Judge D.H. GINSBURG.

SILBERMAN, Circuit Judge:

This case involves a challenge by former White House Deputy Chief of Staff Michael K. Deaver to the constitutionality of the independent counsel provisions of the Ethics in Government Act, 28 U.S.C. Secs. 49, 591-98 (1982 & Supp. III 1985). Deaver filed a civil complaint in federal district court seeking declaratory and injunctive relief from independent counsel Whitney North Seymour, Jr.'s continued exercise of prosecutorial authority. Following the district court's denial of his motion for a preliminary injunction, Deaver appealed to this court and moved for an Emergency Stay to preserve the status quo until we determined the constitutionality vel non of the Act. He alleged that absent a stay he would suffer imminent, irreparable harm in the form of a criminal indictment obtained by Seymour. In an Order dated March 17, 1987, we held that Deaver's lawsuit constituted an impermissible preemptive civil challenge to a criminal proceeding. Accordingly, we denied the motion for Emergency Stay, and on our own motion, summarily affirmed the district court's denial of a preliminary injunction. We then ordered the case remanded to the district court with directions to dismiss the complaint. We now explain that decision.

I.

From 1981 until 1985, Michael Deaver served as White House Deputy Chief of Staff and Assistant to the President of the United States. In May of 1985, Deaver left his position at the White House and established the firm of Michael K. Deaver and Associates, a lobbying association of which he is the president. Thereafter, Deaver's contacts with government officials on behalf of his clients became the object of public scrutiny. On April 23, 1986, five members of the United States Senate wrote to the Attorney General and, pursuant to 28 U.S.C. Sec. 595(e) (1982), ¹ requested the appointment of an independent counsel to investigate Deaver's lobbying activities. Amid growing public speculation concerning the possible impropriety of his contacts with former White House associates on behalf of his clients, Deaver himself requested that an independent counsel be appointed. Finding reasonable grounds to warrant further investigation or prosecution, the Deputy Attorney General on May 22, 1986 applied to a special division of this court for appointment of an independent counsel. ² The application detailed alleged attempts by Deaver to lobby the White House on behalf of two clients, the Government of Canada and the Commonwealth of Puerto Rico, and requested an investigation to determine whether prosecution was warranted for violations of 18 U.S.C. Sec. 207 (1982) ³ or any other federal criminal law.

One week later, the court appointed Whitney North Seymour, Jr. to serve as independent counsel. After organizing a staff and arranging for a grand jury, Seymour began a nine-month investigation into Deaver's lobbying activities. On February 24, 1987, Seymour informed Deaver that he was about to ask the grand jury to return an indictment. The next day, Deaver filed this civil action claiming the Ethics in Government Act is unconstitutional because it vests prosecutorial authority, which belongs exclusively to the Executive branch, in an individual who is not subject to presidential appointment, control, or removal. Deaver moved to enjoin preliminarily Seymour's efforts to obtain an indictment, contending that immediate and irreparable harm would befall him if equitable relief were not granted. He asserted that if Seymour's activities were not halted, he would suffer the "continuing destruction of his business," "injury to his reputation and dignity," and "the expenditure of substantial resources in his defense."

The district court temporarily restrained Seymour from seeking an indictment. Later, however, applying the four-part test set out by this court in Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977), the court denied the motion for a preliminary injunction. The district court concluded that any harm Deaver might suffer as the result of a criminal indictment was not irreparable because there existed an adequate remedy at law, since Deaver could move to dismiss the charges under Federal Rule of Criminal Procedure 12(b)(1) for "defects in the institution of the prosecution." The court also concluded that Deaver had failed to demonstrate the likelihood of ultimate success on the merits because, in the district court's view, the Act would probably not be found to offend the Constitution. Finally, the court concluded the public interest required that any possible violations of the criminal law be speedily prosecuted, an interest most likely secured by allowing Seymour immediately to seek an indictment.

Although the denial of Deaver's application for a preliminary injunction is an interlocutory order appealable under 28 U.S.C. Sec. 1292(a)(1) (1982), ⁴ the district court in addition certified for this court's review the question of the constitutionality vel non of the Act as a "controlling question of law" pursuant to 28 U.S.C. Sec. 1292(b) (1982). ⁵ Deaver immediately appealed the district court's order and sought emergency injunctive relief to preclude an indictment pending our review. We entered a five-day administrative stay and ordered the parties to file supplemental briefs.

On March 17, 1987, after considering the supplemental briefs, we dissolved our administrative stay, denied Deaver's Emergency Motion for Stay, affirmed the district court's denial of his motion for a preliminary injunction, and remanded the case with directions to dismiss the complaint.

II.

The district court, applying the Holiday Tours test, thought it necessary to consider the likelihood that appellant would succeed on the merits of his constitutional challenge to the authority of the independent counsel. We do not. Even were we disposed to agree entirely with appellant's constitutional argument, we think he has no right to an injunction restraining a pending indictment in a federal court.

The traditional rule, dating back to the English division between courts of law and equity, was that the latter had "no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors" and therefore could not enjoin criminal proceedings, In re Sawyer, 124 U.S. 200, 210, 8 S.Ct. 482, 487, 31 L.Ed. 402 (1888). Departing somewhat from this rule around the turn of the century, the Supreme Court in certain cases permitted federal courts to issue injunctions against state court criminal proceedings that threatened federal constitutional rights. See, e.g., Dobbins v. Los Angeles, 195 U.S. 223, 241, 25 S.Ct. 18, 22, 49 L.Ed. 169 (1904) (court of equity may enjoin prosecution under void law where property rights would otherwise be destroyed); Truax v. Raich, 239 U.S. 33, 38, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915) (court may enjoin enforcement of unconstitutional criminal law when essential to protect right to earn a livelihood). A federal injunction was available to prevent state officers from instituting criminal proceedings "under extraordinary circumstances where the danger of irreparable loss [of a constitutional right was] both great and immediate." See Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926).

More recently however, the Court, troubled by notions of comity, tightened the criteria for granting federal injunctions that interfere with state criminal proceedings, holding that the "cost, anxiety, and inconvenience of having to defend against a single criminal prosecution" are not recognized as irreparable injuries justifying an equitable remedy. Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751-52, 27 L.Ed.2d 669 (1971). See also Bokulich v. Jury Commission of Greene County, 394 U.S. 97, 98, 89 S.Ct. 767, 768, 22 L.Ed.2d 109 (1969); Spielman Motor Sales Co., Inc. v. Dodge, 295 U.S. 89, 96, 55 S.Ct. 678, 681, 79 L.Ed. 1322 (1935). Although it is surely true that an innocent person may suffer great harm to his reputation and property by being erroneously accused of a crime, all citizens must submit to a criminal prosecution brought in good faith so that larger societal interests may be preserved. See Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 880-81, 87 L.Ed. 1324 (1943); Beal v. Missouri Pacific R.R. Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420-21, 85 L.Ed. 577 (1941). As Justice Frankfurter explained, "[b]earing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940).

Thus, in the past few decades, the Supreme Court has upheld federal injunctions to restrain state criminal proceedings only where the threatened prosecution chilled exercise of First Amendment rights, see, e.g., Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (threatened enforcement of unconstitutional statute requiring "Live Free or Die" motto on car license plate against those covering up motto); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (ordinance banning topless dancing, enforcement of which threatens to bankrupt petitioner); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (civil rights workers repeatedly prosecuted under state law broadly regulating speech). ⁶ See also Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (granting declaratory relief to handbill...