The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before the Court is Patty Merkamp Stemler's motion to vacate this Court's February 13, 2009 contempt finding in United States v. Theodore F. Stevens.*fn1 On that date, the Court held Ms. Stemler and two other senior government attorneys in contempt for violation of the Court's January 21, 2009 Order to produce certain information to the Court and to the defendant, Senator Stevens. Upon consideration of Ms. Stemler's motion, the accompanying memorandum of law and supporting declarations, the entire record in the Stevens case, and for the reasons set forth in this Memorandum Opinion, the Court concludes that the motion to vacate the original contempt finding is DENIED. Nevertheless, because the government later complied with the Court's January 21, 2009 Order and purged the contumacious conduct, the Court finds that the contempt has been lifted. Moreover, as the Court finds it unnecessary to impose sanctions related to its original contempt finding, there remains nothing more for the Court to resolve and this matter is hereby DISMISSED.
Beginning in December 2008, Ms. Stemler, a senior attorney with the United States Department of Justice ("DOJ"), represented the United States in the Stevens case. During that time, Ms. Stemler, along with several other senior DOJ attorneys, was extensively and directly involved with matters related to a complaint filed by FBI Special Agent Chad Joy, which raised serious allegations of prosecutorial and governmental misconduct in the investigation and trial of Senator Stevens (the "Joy Complaint").
As explained herein, based on the record and Ms. Stemler's own pleadings and declarations, it is undisputed that (i) Ms. Stemler was aware of the Court's January 21, 2009 Order and the government's obligation to produce certain information to the defendant; (ii) she understood that the Order required the government to produce that information to the defendant; and (iii) she knew that the defendant had filed a motion to hold the government in contempt for violating the Court's January 21, 2009 Order. Nevertheless, at a hearing on February 13, 2009, the government acknowledged that it had not produced the information to the defendant pursuant to the Court's January 21, 2009 Order. Moreover, the government's attorneys, including Ms. Stemler, offered no excuse or reason for their failure to comply with that Order. Accordingly, because Ms. Stemler and her colleagues were, in fact, in contempt of the Court on February 13, 2009, the Court will not vacate its original contempt finding. Ms. Stemler's motion is therefore DENIED.
The Court notes, however, that the government did belatedly produce the relevant information to the defendant following the Court's contempt finding, and therefore the contempt has been purged. See, e.g., Int'l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 828 (1994) (civil contempt is a coercive tool, and thus a contemnor may purge the contempt by complying with the underlying court order); NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981) (explaining that following the disobedience of a court's order, the court may issue "a conditional order finding the recalcitrant party in contempt and threatening to impose a specified penalty unless the recalcitrant party purges itself of contempt by complying with prescribed purgation conditions"). Because the purgation conditions were fulfilled, the Court does not believe that sanctions based on this civil contempt finding are necessary or appropriate in this instance. See, e.g., Sheet Metal Workers v. EEOC, 478 U.S. 421, 443 (1986) (civil contempt sanctions may be imposed to compensate the complainant for losses sustained). Accordingly, the Court will lift the contempt finding as of the date and time the government complied with the Court's January 21, 2009 Order. The Court finds that nothing more remains for it to do with respect to this contempt finding, and accordingly this matter is DISMISSED.
A. Legal Standard for Contempt
As a threshold matter, Ms. Stemler devotes a significant portion of her memorandum to the argument that this was a civil, as opposed to a criminal, contempt finding. As the Supreme Court has recognized, "whether a contempt is civil or criminal turns on the character and purpose of the sanction involved." Bagwell, 512 U.S. at 827 (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911)). As a general rule, civil contempt is imposed "to compel compliance with an order of the court[.]" Cobell v. Norton, 334 F.3d 1128, 1145 (D.C. Cir. 2003) (citing Bagwell, 512 U.S. at 828). Contempt is civil, therefore, "if the contemnor is able to purge the contempt and obtain his release by committing an affirmative act[.]" Id. at 1147 (citing Bagwell, 512 U.S. at 828). "By contrast, criminal contempt is used to punish, that is, to vindicate the authority of the court following a transgression rather than to compel future compliance." Id. at 1145 (internal quotation omitted). With criminal contempt, "the contemnor cannot avoid or abbreviate [the punishment] through later compliance." Bagwell, 512 U.S. at 829. With this legal framework in mind, the Court agrees that its February 13, 2009 contempt finding was civil in nature, as it was imposed to compel the government to comply with its January 21, 2009 Order to provide the defense with the information related to Agent Joy's whistleblower status and/or protection.
A comprehensive recitation of the pre-trial, trial, and post-trial proceedings in the Stevens case is not necessary for resolution of the instant motion. The Court has previously spent a great deal of time recounting much of the relevant background in a number of written opinions and orders, including the Court's (i) December 19, 2008 Memorandum Opinion and Order; (ii) December 22, 2008 Order; (iii) January 14, 2009 Order; (iv) January 16, 2009 Opinion and Order; (v) January 21, 2009 Opinion and Order; and (vi) February 3, 2009 Order.*fn2 Much of the following summary is taken from those opinions and orders, which provide more detail and are incorporated herein by reference.
1. The Joy Complaint and the Government's Efforts to Seal It
On October 27, 2008, following a five-week jury trial marred by repeated allegations of discovery violations and prosecutorial misconduct, Senator Stevens was convicted of making false statements, based on charges that he failed to report certain gifts on his Senate Financial Disclosure Forms. On December 11, 2008, the government filed a "sealed memorandum," along with a motion to file ex parte and a motion to seal, notifying the Court that on December 2, 2008, the government's attorneys in the case had received a copy of a "self-styled whistleblower complaint" authored by an FBI Special Agent with extensive knowledge of the investigation and trial of Senator Stevens. Doc. No. 300, Sealed Memorandum, Dec. 11, 2008.*fn3 The complaint raised allegations of misconduct by certain government employees involved with the investigation and prosecution of Senator Stevens.
In its motion, the government represented to the Court that it initially received the complaint on December 2, 2008 and over the course of the following days "received additional information, guidance and advice to satisfy itself that any possible statutory and regulatory confidentiality concerns surrounding a request for whistleblower protection had been fully explored and addressed, and would not prohibit a disclosure to the Court at a minimum." Doc. No. 300 at 2. Based on whistleblower and privacy concerns, the government sought to seal the Agent's complaint, and to keep much of the complaint's content from the defense. Senator Stevens strenuously objected to sealing the complaint and insisted that he was entitled to access its contents in their entirety.
On December 19, 2008, following briefing on the government's motion, the Court held a sealed hearing. The hearing was attended by government counsel, including Ms. Stemler, and defense counsel, as well as counsel for the FBI Special Agent who had authored the complaint. Doc. No. 315, Transcript of Hearing, Dec. 19, 2008. Throughout the hearing, Brenda Morris, who spoke on behalf of the government, repeatedly referred the Court to the Agent's attorney, and in addressing the Court, the Agent's attorney repeatedly urged the Court to seal the complaint based on the Agent's desire for "whistleblower protection." Doc. No. 315 at 38, 42. Later that day, the Court issued a lengthy Memorandum Opinion and Order, carefully balancing what the Court understood to be whistleblower and privacy concerns of the government and the Agent on the one hand, with the defendant's constitutional rights on the other. In that Memorandum Opinion and ...