Sealed Motion, In re
| Decision Date | 21 July 1989 |
| Docket Number | No. M,M |
| Citation | 880 F.2d 1367,279 U.S.App.D.C. 294 |
| Parties | In re SEALED MOTION. Divisionisc.-2. . (Division for the Purpose of Appointing IndependentCounsel Ethics in Government Act of 1978, as Amended) |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before MacKINNON, Presiding, BUTZNER and PELL, Senior Circuit judges.
Independent Counsel moves the court to reconsider its Order to release to a witness the transcript of his testimony as a witness before the grand jury in this proceeding under the Ethics in Government Act. 1 Movant (Independent Counsel) contends that the rule applicable to ordinary criminal proceedings applies to the instant case. However, such contention does not give adequate consideration to the sui generis nature of the Independent Counsel Act and its specific provisions. We therefore hold that as a grand jury "witness" in an independent counsel proceeding, said witness is entitled to a copy of his testimony since no indictment was returned and the Final Report has been filed. In any event, the record shows the existence of the requisite "particularized need"--"in connection with a judicial proceeding." Independent Counsel's motion to reconsider is accordingly denied.
The Independent Counsel Reauthorization Act of 1987, 28 U.S.C. Sec. 591 et seq., and its predecessors have specifically empowered this division of the court, in the exercise of its judicial discretion, to ensure that individuals "named" in a final report of an independent counsel's investigation of high government officials are treated fairly and justly. The Act primarily applies only to the highest level officials of government and confers extraordinary "power and responsibility" upon independent counsels to investigate such high-level officials and to file a complete report of the investigation whether or not any indictments are returned. Specifically, the Act specially "directs" the court to protect the rights of any "individual named" in the report. To this end, 28 U.S.C. Sec. 594(h)(2) provides: "The division of the court shall make such orders as are appropriate to protect the rights of any individual named in such [final] reports." The legislative history of the Ethics in Government Act, supra, emphasizes this duty. 2
One mechanism designed to ensure fairness to "named" individuals authorizes the court, in its discretion, to disclose relevant portions of an independent counsel's report, prior to its public release, to any individual named in a report and to authorize such individuals to submit "comments or factual information" that the court may, in its discretion, find to be appropriate for inclusion in an appendix to a final report upon its public release. 3 (Hereafter the "comment proceeding".). This proceeding implements the congressional intent that individuals named in an independent counsel's report be treated fairly. In the instant case, fairness considerations are heightened due to interests of the highest national importance. The court finds it important as to the witness (a high government official), the government and the public that he be given every reasonable opportunity to ensure the accuracy of the Independent Counsel's Report as to him and his conduct. At all times relevant hereto the named witness was serving in a high government position.
The Independent Counsel Act, 28 U.S.C. Sec. 591 et seq., is sui generis in many aspects. It was a product of Congress' and the public's recurrent concerns, most recently aroused by "Watergate," and the earlier history of Tea Pot Dome and the Truman Tax Scandals, see In re Olson, 818 F.2d 34 (D.C.Cir.1987), that the Executive Branch could not be expected to be politically impartial, or be perceived to be politically impartial, in investigating and making prosecutorial decisions involving high ranking officials in the Executive Branch.
The President and the Attorney General must have policy control to make discretionary enforcement decisions. However, where the alleged criminal conduct of high level officials is involved, this argument must bow to the fundamental principle that no man can be a prosecutor or judge in his own case.
S.Rep. No. 170, 95th Cong., 1st Sess. 5, March 16, 1977.
The Independent Counsel Act provides for the special division of the court to appoint independent counsels who have considerable independence from the Executive in pursuing an investigation and possible prosecution of a subject. The Act subjects only the highest officials in our government to investigation by a prosecutor who is specially appointed and independent from the normal constraints and checks on prosecutorial power. Moreover, the Act requires the Independent Counsel to file a report even though no indictment is returned. This is contrary to the practice in federal grand jury investigations. 4 Because of an independent counsel's special powers, Congress provided special procedures described above, to ensure fairness to the targets of such investigations and to those touched by investigations. The present dispute over the original motion by the witness for his grand jury testimony arises over the proper balance between the prerogatives of the Independent Counsel and the rights of one of those swept up in the investigation.
The legislative history of the Act demonstrates that Congress appreciated the unique nature of the Independent Counsel office it created and the dangers the law posed to all touched by an investigation. The critical feature of the Act is that an independent counsel, because he investigates high ranking members in the Executive Branch, has a very large measure of independence from the executive.
One of the serious problems with the appointment of a truly independent special prosecutor is that there is no one [except, in limited circumstances, the court] supervising the activities of the special prosecutor. Inherent in such a situation is the possibility of a runaway prosecutor or a special prosecutor who does not bring the prosecutions that should be brought.
S.Rep. No. 95-170 p. 70. Congress sought to ameliorate some of these problems by requiring that an independent counsel file a final report with this division of the court. Congress viewed the report as a "very important" means to "insure the accountability of a special prosecutor." Id. In such reports, an independent counsel must "set forth fully and completely a description of the investigative work of the independent counsel" even though no indictment was returned. 28 U.S.C. Sec. 594(h)(1)(B). Thus, in most cases, the court, the Congress, the Department of Justice and, ultimately, the public would have access to "a detailed and official record of the activities of the special prosecutor [independent counsel] which may be reviewed and analyzed at the appropriate time." S.Rep. 95-170 p. 70-71. Filing a report that may be made public where no indictment is returned is a complete departure from the authority of an United States Attorney following the return of a no bill by a grand jury. 5
In addition, the Act provides a check, referred to above, on the discretion of an independent counsel by providing individuals named in a final report with an opportunity to submit comments that may be added as an appendix to the report. Congress created the comment proceeding in an effort to ensure fairness and accuracy in the final report of a "truly independent special prosecutor." To this end, the Act also vests jurisdiction in this division of the court to "make such orders as are appropriate to protect the rights of any individual named in such [Independent Counsel] report...." Section 594(h)(2). This authority vested in the special court provides a highly desirable check on what would otherwise allow an independent counsel to file an unbridled final report.
Congress thus found it necessary to make the comment proceeding available to provide some protection for targets, witnesses and affected parties in independent counsel investigations.
The named witness contends that the general "rule of grand jury secrecy does not prohibit disclosure to a witness of his own grand jury testimony." Motion to Release at 2. Conversely, the Independent Counsel asserts that the general rule of grand jury secrecy, Federal Rule of Criminal Procedure 6(e)(2), requires that the witness make a "strong showing of a particularized need" to gain access to his own grand jury testimony. Motion in Opposition at 3.
Whether a grand jury witness is entitled to his own grand jury testimony has sparked conflicting rulings and observations in the federal courts. The Supreme Court has not passed on this precise question. 6 We conclude that because the right to secrecy in grand jury proceedings belongs to the grand jury witness, a grand jury witness named in an independent counsel's report is entitled to a transcript of his own testimony absent a clear showing by the government that other interests outweigh the witness' right to such transcript.
In Bursey v. United States, 466 F.2d 1059 (9th Cir.1972), a unanimous panel of the Ninth Circuit held that where grand jury witnesses are confronted with "repititious questioning," concepts of fundamental fairness inherent in due process require that the witness be protected from unfair exposure to a perjury prosecution. The court granted the defendants' motion for a transcript of their prior grand jury testimony, to avoid unfairness, unless the government could demonstrate "some particularized and substantial reasons" to oppose the motion. Bursey at 1080 (citing United States v. Projansky, 44 F.R.D. 550 (S.D.N.Y.1968).
The following year in United States v. Fitch, 472 F.2d 548 (9th Cir.1973), a different Ninth Circuit panel stated in a footnote that "[g]rand jury witnesses are not entitled as a matter of right to a transcript of testimony given before...
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