In re Special Proceedings

• Decision Date: 08 February 2012
• Docket Number: Misc. No. 09–0198 (EGS).
• Parties: In re SPECIAL PROCEEDINGS.
• Court: U.S. District Court — District of Columbia

842 F.Supp.2d 232

In re SPECIAL PROCEEDINGS.

Misc. No. 09–0198 (EGS).

United States District Court,

District of Columbia.

Feb. 8, 2012.

George J. Terwilliger, III, Robert J. Bittman, White & Case, L.L.P., Washington, DC, for Movant.

Henry Frederick Schuelke, III, Washington, DC, pro se.

Kenneth Leonard Wainstein, Jeffrey S. Nestler, Sara S. Zdeb, O'Melveny & Myers, L.L.P., Washington, DC, for Joseph W. Bottini.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Pending before the Court are two motions to permanently seal from public disclosure the Report to the Honorable Emmet G. Sullivan of Investigation Conducted Pursuant to the Court's April 7, 2009 Order (“Mr. Schuelke's Report” or “Report”).¹ For the reasons discussed herein, the Court DENIES the motions and ORDERS that Mr. Schuelke shall provide an unredacted version of this Memorandum Opinion to each of the attorneys who received copies of the Report, pursuant to the Court's November 21, 2011, 825 F.Supp.2d 203, 2011 WL 5828550 (D.D.C.2011), Order and the executed Confidentiality Agreement. It is further ORDERED that Mr. Schuelke file his Report on the public docket on March 15, 2012, after the subject attorneys are afforded an opportunity to submit their comments or objections to Mr. Schuelke by no later than March 8, 2012. Mr. Schuelke shall include any such submissions as addenda to the published Report. It is further ORDERED that when the Report is made public, the individuals who are subject to the Confidentiality Agreement as a condition to having access to the Report shall be released from that Confidentiality Agreement. It is further ORDERED that on March 15, 2012, all pleadings related to Mr. Schuelke's Report and filed in response to the Court's November 21, 2011 Order shall be unsealed and placed on the public docket. Finally, it is further ORDERED that on March 15, 2012, an unredactedversion of this Memorandum Opinion shall be placed on the public docket.²

To deny the public access to Mr. Schuelke's Report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice. In July 2008, attorneys in the Public Integrity Section of the Department of Justice indicted a public official for allegedly failing to report gifts on his public disclosure forms. The attorneys then tried the defendant in the most public manner possible, and when they obtained a guilty verdict, they held a press conference to proclaim victory to the public. As a result of that verdict, the public official lost his bid for reelection, which tipped the balance of power in the United States Senate.

Meanwhile, in the face of serious and mounting allegations of prosecutorial misconduct throughout the trial and post-trial proceedings, the attorneys repeatedly represented to the Court and to the public that there was no wrongdoing and no cause to question the integrity of either the indictment or the verdict. Only when faced with uncontroverted evidence that the attorneys had committed Brady violations ³ did the government come before the Court and publicly move to dismiss the indictment and vacate the verdict. And only at that point did the government seek to turn this public proceeding into a private one, assuring the Court that it would investigate the prosecutors internally through its confidential Office of Professional Responsibility process.

The U.S. Court of Appeals for the District of Columbia Circuit has said, following Supreme Court precedent, that First Amendment access to criminal proceedings “serves an important function of monitoring prosecutorial or judicial misconduct.” Washington Post v. Robinson, 935 F.2d 282, 288 (D.C.Cir.1991) (citations omitted). Mr. Schuelke's five-hundred-page Report concludes that “the investigation and prosecution of Senator Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness.” Mr. Schuelke's Report at 1.

It is not an overstatement to say that the dramatic events during and after the Stevens trial, and particularly the government's decision to reverse course and move to vacate the verdict, led to a continuing national public discourse on prosecutorial misconduct and whether and what steps should be taken to prevent it. Withholding the Report from the public and leaving the public with only the information from the trial and immediate post-trial proceedings would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided. The First Amendment, the public, and our system of justice demand more.

I. IntroductionA. The Court's November 21, 2011 Order

On April 7, 2009, in response to a series of allegations and confirmed instances of prosecutorial misconduct during and following the five-week trial of U.S. Senator Theodore F. Stevens (“the Stevens trial”), the Court appointed Henry F. Schuelke, III, to investigate and prosecute such criminal contempt proceedings as may be appropriate against the six Department of Justice attorneys responsible for the prosecution of Senator Stevens (“the subject attorneys”). See Order Appointing Henry F. Schuelke, United States v. Stevens, No. 08–cr–231, 2009 WL 6525926 (D.D.C. Apr. 7, 2009) (“April 7, 2009 Order”).

On November 21, 2011, the Court issued an Order indicating, inter alia, that Mr. Schuelke had informed the Court that his investigation was concluded and had submitted a five-hundred-page report to the Court in camera. Order Regarding Report of Henry F. Schuelke, III, and Setting Forth Instructions for Further Proceedings at 12 (“November 21, 2011 Order”). The Court's Order went on to note that based on their exhaustive investigation, Mr. Schuelke and his esteemed colleague, Mr. William B. Shields, had concluded that the investigation and prosecution of Senator Stevens were “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness.” Id. at 3 (citing Mr. Schuelke's Report at 1). The Court then concluded:

While providing the public with the full results of Mr. Schuelke's investigation has been and remains the Court's intent, in view of the Amended Protective Order entered in these proceedings on December 13, 2009, and this Circuit's holding in In re North, 16 F.3d 1234 (D.C.Cir.1994), the Court has determined that Mr. Schuelke's complete report should not be made public at least until the Department of Justice has had the opportunity to review the report. The Court has further determined that it is appropriate to afford the subject attorneys and Senator Stevens's attorneys the opportunity to review the report, under the terms and conditions set forth [in the Order]. The Court will then consider any objections to making Mr. Schuelke's Report public[.]

Id. at 7.

B. The Pleadings Filed in Response to the Court's November 21, 2011 Order

In response to the Court's November 21, 2011 Order, the Department of Justice filed a Motion to File On Public Docket the Notice of Department of Justice Regarding Materials Referenced in Mr. Schuelke's Report. The Court granted that motion on January 9, 2012. The Department of Justice's Notice advised the Court that it “does not intend to file a motion regarding Mr. Schuelke's report” and that “[t]he government does not contend that there is any legal prohibition on the disclosure of any references in Mr. Schuelke's report to grand jury material, court authorized interceptions of wire communications, or any sealed pleadings or transcripts that have now been unsealed.” Notice of Dep't of Justice Regarding Materials Referenced in Mr. Schuelke's Report, at 1–2 (“DOJ Notice”). In addition, the Department of Justice informed the Court that it was not asserting any deliberative process or attorney-work product privilege with respect to the information contained in Mr. Schuelke's Report. Id. at 2.

Each of the six subject attorneys filed notices, motions and/or memoranda of law in response to the Court's November 21, 2011 Order.⁴ Two of the subject attorneys informed the Court that they either agree or do not object to the public release of the Report. See Brenda Morris Concurs with the Court's Intent, as Stated in its November 21, 2011 Order, to Release the Full Report (“Morris Submission”) and Sealed Notice filed by William M. Welch II (“Welch Notice”). Two of the subject attorneys filed motions to seal the Report. See Motion to Permanently Seal the Report filed by Edward P. Sullivan (“Sullivan Motion”) and Motion Opposing Public Release of Report by Henry F. Schuelke, III filed by Nicholas Marsh (“Marsh Motion”). Finally, two of the subject attorneys filed notices or memoranda opposing release of the Report. See Joseph W. Bottini's Submission in Response to the Court's November 21, 2011 Order (“Bottini Submission”) and Memorandum of Law Opposing Publication of the Schuelke Report filed by James Goeke (“Goeke Memorandum”). These four pleadings opposing release raise overlapping objections and arguments against publicly releasing the Report, and the Court will therefore analyze and discuss them collectively as the “opposing attorneys' ” pleadings and/or arguments. ⁵ Specifically, the opposing attorneys argue that (1) because Mr. Schuelke's investigation was a “grand jury-style” investigation, it should be bound by the grand jury secrecy rules and precedent, particularly where, as here, the investigating body is not indicting or recommending criminal prosecution (and therefore the allegations will not be subject to adversarial proceedings); (2) the Court should not follow the D.C. Circuit's...