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In Re Special Proceedings

February 8, 2012

IN RE SPECIAL PROCEEDINGS


The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Court Judge

MEMORANDUM OPINION

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").*fn1 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 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 unredacted version of this Memorandum Opinion shall be placed on the public docket.*fn2

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 re-election, 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*fn3 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.Introduction

A.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 (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.*fn4 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.*fn5 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 approach to releasing the Independent Counsel's report in In re North, 16 F.3d 1234 (D.C. Cir. 1994) ("North"), or, if the Court does follow that approach, the Court should conclude that the factors identified in that case do not weigh in favor of releasing Mr. Schuelke's Report; and (3) there is no First Amendment right of access to Mr. Schuelke's Report. See, e.g., Sullivan Motion at 6, 12, 17; Marsh Motion at 5, 8, 10-11.

Finally, one entity filed a memorandum urging the Court to release the Report (1) in view of the highly public nature of the Stevens trial, the First Amendment right to access these proceedings and the common law right to access judicial records; and (2) because if the Court were to consider the North factors, those factors weigh heavily in favor of release. See Memorandum in Support of Public Access to Mr. Schuelke's Report filed by Williams & Connolly LLP ("Stevens Memorandum").*fn6 *fn7

Upon careful consideration of the various points and authorities raised for and against public disclosure of Mr. Schuelke's Report, the relevant statutory and case law, the entire record in the Stevens proceedings, and the highly unique circumstances present in this case, and for the reasons discussed below, the Court concludes that (1) the public has an overriding and compelling right to access the Report, and that right is protected by the First Amendment; (2) Mr. Schuelke's investigation differed in significant respects from a grand jury proceeding and is not bound by the grand jury secrecy rules, and moreover the reasons underlying the secrecy of grand jury proceedings are for the most part not relevant in this case; and (3) the D.C. Circuit's approach in North is instructive, and the factors identified in that case as relevant to determining whether to publicly release a special prosecutor's report overwhelmingly counsel in favor of publicly releasing the Report under these circumstances. Accordingly, the Court will order Mr. Schuelke to file his Report on the public docket. In order to address any claimed prejudice to the subject attorneys, however, the Court will first afford them another opportunity to submit objections or comments to Mr. Schuelke to be published as addenda to the Report, similar to the process followed in North and subsequent cases.*fn8

II.Discussion

A.The First Amendment Right of Access to Judicial Proceedings

The First Amendment to the United States Constitution provides the public with a right of access to judicial proceedings where (i) "the place and process have historically been open to the press and general public"; and (ii) "public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Sup. Ct. of Cal. ("Press-Enterprise II"), 478 U.S. 1, 8 (1986); see also Press-Enterprise Co. v. Sup. Ct. of Cal. ("Press-Enterprise I"), 464 U.S. 501, 505-10 (1984); Globe Newspaper Co. v. Sup. Ct. for Norfolk Cnty., 457 U.S. 596, 605-06 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573-74 (1980).

1.Criminal Trials -- Including the Stevens Trial -- Have Historically Been Open to the Public

a.Relevant Case Law

The right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings. See, e.g., Press-Enterprise II, 478 U.S. at 10-13 (First Amendment right of access to adversarial pre-trial preliminary hearings); Press-Enterprise I, 464 U.S. at 510-11 (First Amendment right to access voir dire proceedings); United States v. Ignasiak, Nos. 09-10596, 09-16005, and 10-11074, 2012 WL 149314, *15-16 (11th Cir. Jan. 19, 2012) (First Amendment right of access to government's post-trial pleading revealing impeachment information of one of its key witnesses where government argued that the witness's privacy interest justified keeping the information under seal); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (First Amendment right of access to documents supporting search warrants); Applications of Nat'l Broad. Co. v. Presser, 828 F.2d 340, 344-45 (6th Cir. 1987) (First Amendment right of access to pretrial documents); CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825-26 (9th Cir. 1985) (First Amendment right of access to post-trial documents regarding potential sentence reduction); Associated Press v. U.S. Dist. Ct. for Cent. Dist. of Cal., 705 F.2d 1143, 1145 (9th Cir. 1983) (First Amendment right of access to pretrial documents); In re Access to Jury Questionnaires, No. 10-SP-1612, 2012 WL 140425, *4-5 (D.C. Jan. 19, 2012) (First Amendment right of access to written juror questionnaires).

Although First Amendment access to criminal proceedings is not absolute, the standard to overcome the presumption of openness is a demanding one:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press-Enterprise I, 464 U.S. at 510; see also United States v. Brice, 649 F.3d 793, 796-97 (D.C. Cir. 2011) (assuming without deciding that the First Amendment affords access to material witness proceedings but upholding trial court's closure of the proceedings, where opening such proceedings would reveal "private and painful" information related to then-juvenile victims' physical and mental health, constitute a "grotesque invasion of the victims' privacy[,]" and trial court made finding that no alternatives to closure could protect the compelling privacy interests).

b.The Public Nature of the Stevens Trial

As noted above, criminal trials have historically been open to the public. See, e.g., Globe Newspaper Co., 457 U.S. at 603-06; Richmond Newspapers, 448 U.S. at 564-74. The Stevens trial was certainly no exception. In fact, recognizing from the outset the significant public interest in the case, the Court took extensive steps to ensure that members of the public and the media had access to all aspects of the proceedings.*fn9 See, e.g., Order, Stevens, No. 08-231 (Sept. 19, 2008) (setting aside reserved seats in the courtroom for members of the public and the media as well as providing an "overflow" courtroom with live audio and video transmittal of the proceedings).

The public's interest in and right to access the Stevens trial was not merely a theoretical one. Rather, the trial received nearly unprecedented media coverage. By the Court's estimation, for the 25 days of trial (including jury selection and deliberation), a total of 51 stories about the Stevens case ran in the front sections of the Washington Post and the New York Times. It is important to note, as the memorandum filed by Williams and Connelly points out, that this media attention was welcomed and even fostered by the prosecutors. See Stevens Memorandum at 1-2. The government issued a press release on the day it indicted Senator Stevens, and Matthew Friedrich, the Acting Assistant Attorney General for the Criminal Division, held a press conference to proclaim the news. See Press Release, U.S. Dep't of Justice, U.S. Senator Indicted on False Statement Charges (July 29, 2008), available at http://www.justice.gov/opa/pr/2008/July/08-crm-668.html (last visited Feb. 6, 2012); Senator Ted Stevens Indictment, C-Span Video Library (July 29, 2008), http://www.cspanvideo.org/program/280113-1 (accessed by searching "Ted Stevens Indictment" and limiting the date range to July 29, 2008) (last visited Feb. 6, 2012). The Department of Justice posted each day's trial exhibits on its website. On the day of the verdict, Mr. Friedrich stood with the trial team outside the courthouse and pronounced to the television cameras that "[t]he Department is proud of this team, not only for this trial, but for the investigation that led to it." Senator Stevens Verdict News Conference Tr. at 00:03:23, C-Span Video Library (Oct. 27, 2008), http://www.c-spanvideo.org/appearance/554818464 (last visited Feb. 6, 2012).

The public's interest in the Stevens trial did not end after the verdict, nor did this Court's efforts to protect that interest. Two months after the verdict, when the government sought to seal a complaint alleging prosecutorial misconduct filed by the FBI agent who had co-led the investigation of Senator Stevens, the Court issued an opinion concluding that the public had a First Amendment right to access the FBI agent's post-trial complaint and the government's pleadings related thereto. See United States v. Stevens, Crim. No. 08-231 (EGS), 2008 WL 8743218, *8 (D.D.C. Dec. 19, 2008). Following the D.C. Circuit's decision in Washington Post v. Robinson, the Court specifically found that access to the agent's complaint and any resulting proceedings would be likely to serve the important function of monitoring prosecutorial misconduct, especially where motions made during the trial raised the same or similar allegations as those in the agent's complaint, and the complaint specifically included allegations of such misconduct. Id. (citing Robinson, 935 F.2d at 288). As discussed infra, the same conclusion applies to Mr. Schuelke's Report.

c.Mr. Schuelke's Report is Related to the Stevens Trial

The opposing attorneys argue that there is no First Amendment right of access to Mr. Schuelke's Report because it is an investigative document and there is no "unbroken, uncontradicted history" of access to such reports, which are the equivalent of grand jury materials to which the First Amendment does not provide a right of access. See Sullivan Motion at 20-21; Marsh Motion at 10. The opposing attorneys' arguments based on grand jury secrecy are discussed infra Part II.B. As for their contention that the First Amendment does not provide access to the Report because it is an investigatory document unrelated to the Stevens trial, that argument is misplaced.*fn10

Mr. Schuelke's Report relates and pertains to the Stevens prosecution, as did the FBI agent's post-trial complaint alleging prosecutorial misconduct in the investigation and trial of Senator Stevens. Rather than moving to dismiss the indictment with prejudice, had the government filed a notice or other pleading with the Court informing the Court that the government had discovered post-trial that the prosecution team had committed additional Brady violations, the Court would have held an evidentiary hearing or otherwise taken steps to learn the extent of the misconduct and determine whether sanctions or other remedies, including criminal contempt proceedings, were appropriate. The public would certainly have enjoyed a First Amendment right of access to those proceedings, under the well-established precedent discussed above. However, in view of the government's unopposed motion to dismiss the indictment and because Senator Stevens had a liberty interest at stake, it would have been inappropriate to defer ruling on the government's motion in order to embark on such proceedings.

Accordingly, during a public hearing on the government's motion held in the Stevens case, the Court appointed Mr. Schuelke to investigate and prosecute any criminal contempt proceedings as may be appropriate. See Transcript of Hearing 46:12 -- 47:15, Stevens, No. 08-231 (April 7, 2009) ("April 7, 2009 Tr."). In appointing Mr. Schuelke, the Court explicitly stated that "the Court has an obligation to determine what happened here and respond appropriately, and I intend to do so." Id. 47:20-22. The Court also made clear that the public would have access to that information. See id. 46:9-11. ("This court has an independent obligation to ensure that any misconduct is fully investigated and addressed in an appropriate public forum."). Only after appointing Mr. Schuelke did the Court grant the government's motion to dismiss. Id. 48:17-20.

After a highly publicized trial and months of post-trial proceedings during which the prosecution team repeatedly denied any wrongdoing and zealously defended the guilty verdict it had obtained, the opposing attorneys cannot now circumvent the First Amendment and any public accountability by relying on the government's eleventh-hour motion to dismiss the indictment with prejudice.*fn11 The First Amendment right of access "serves an important function of monitoring prosecutorial or judicial misconduct." Robinson, 935 F.2d at 288 (citing Press-Enterprise II, 478 U.S. at 8; Globe Newspaper Co., 457 U.S. at 605-06). That includes a right of access to Mr. Schuelke's Report under the circumstances of this case.

2.Access to Mr. Schuelke's Report Will Play a Significant Positive Role in Informing the Public Regarding Criminal Trials in General ...


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