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In re Application to Unseal Dockets Related to Independent Counsel's 1998 Investigation of President Clinton

United States District Court, District of Columbia

February 12, 2018

IN RE APPLICATION TO UNSEAL DOCKETS RELATED TO THE INDEPENDENT COUNSEL'S 1998 INVESTIGATION OF PRESIDENT CLINTON

          MEMORANDUM AND ORDER

          Beryl A. Howell, Chief Judge

         Cable News Network, Inc. (“CNN”) and its journalist Katelyn Polantz have requested, via letter, dated February 9, 2018, that eight sealed Miscellaneous matters arising from Independent Counsel Kenneth W. Starr's investigation in 1998 of then-President William Jefferson Clinton “be unsealed and made public.” CNN/Polantz Request to Unseal Dockets Related to the Independent Counsel's 1998 Investigation of President Clinton (“CNN/Polantz Unsealing Request”) at 1, ECF No. 1. As CNN correctly points out, each of these dockets “remains an opaque SEALED vs. SEALED.” Id. Indeed, these docket numbers do not appear on the Federal Judiciary's electronic public access service, Public Access to Court Electronic Records (PACER), because they are being treated as sealed dockets with sealed docket entries. The Miscellaneous dockets at issue are described by CNN as follows:

1.

98-mc-095

Bruce Lindsey testimony

3.

98-mc-097

Nancy Hernreich testimony

4.

98-mc-148

Secret Service Testimony

5.

98-mc-202

White House documents

6.

98-mc-267

Presidential subpoena

7.

98-mc-278

Lanny Breuer testimony

8.

Unknown

Terry Lenzner and Investigative Group Intl., Inc. subpoena.

Id. at 1.[1]

         The CNN/Polantz Unsealing Request contends that the unsealing of these Miscellaneous dockets, “as well as all of the contents therein, ” id. at 4, is appropriate because (1) “[a]ll of these matters were widely covered by the media at the time, ” id. at 1; (2) these matters, “except for the Presidential subpoena matter, resulted in a myriad of judicial rulings by this Court, the D.C. Circuit, and/or the Supreme Court, ” id., with information from these matters “published in great detail in [ ] judicial opinions, ” id. at 2; (3) “[t]he identity of the witness or entity at the center of these sealed cases, as well as a few of the filings from them, were published by the Independent Counsel in 1998 in an appendix to his report to the House of Representatives, ” id.; (4) since these dockets “appear to relate only to witnesses and entities [sic] compliance with grand jury subpoenas, ” they “likely do not contain the resulting core Rule 6(e) grand jury material, ” id. at 3; and, finally, (5) “[g]iven that the present administration faces the possibility of compelled presidential testimony and the application of various privileges, there is a keen public interest in learning more about how those interactions took place during the 1998 clash between an independent prosecutorial body and the executive branch, ” id.

         Seven of the eight Miscellaneous docket numbers at issue are referenced in the report submitted to the House of Representatives by Independent Counsel Starr, see Communication from Kenneth W. Starr, Independent Counsel, Transmitting a Referral to the United States House of Representatives Filed in Conformity with the Requirements of Title 28, United States Code, Section 595(c) (“Starr Report”), H.R. Doc. No. 105-310 (1998). In addition, some, but not all, of the documents entered on the dockets for these matters appear in full or are summarized in the appendices to the Starr Report. The D.C. Circuit authorized the Independent Counsel to disclose to the House of Representatives “all grand jury material that the independent counsel deems necessary to comply with the requirements of [28 U.S.C.] § 595(c), ” based upon the “'Ex Parte Motion for Approval of Disclosure of Matters Occurring Before a Grand Jury' filed by Independent Counsel [ ] Starr on July 2, 1998, ” which ex parte motion remains sealed. See Order, In re Madison Guaranty Savings & Loan Ass'n, Special Div. No. 94-1 (D.C. Cir. filed July 7, 1998), reprinted in Starr Report, Vol. II at 10.

         Consequently, the docket numbers for seven of the eight Miscellaneous matters at issue and any documents from those matters revealed in full in the Starr Report have already been unsealed and should have been made publicly available. See Starr Report, App. Vol. II, at 193 and 197-99 (disclosing Miscellaneous matter numbers 98-095, 98-096, 98-097, 98-148, 98-202, 98-267, and 98-278). Apparently, after issuance of the Starr Report, no specific direction was provided to the Clerk's Office as to which documents included in the Starr Report were to be disclosed, and the Clerk's Office rightfully carefully maintains the confidentiality of sealed matters unless expressly directed to unseal records. The Clerk's Office is therefore now ordered to make publicly available promptly on the Court's Case Management/Electronic Case Filing (CM/ECF) system and PACER these seven Miscellaneous matter numbers, as well as the documents from those matters that have been revealed in full in the Starr Report, which Miscellaneous matter numbers and corresponding unsealed documents are listed in the attachment to this Order.

         In addition to the records released pursuant to the D.C. Circuit's July 7, 1998 order, further examination of the dockets for seven of the eight Miscellaneous matters at issue reveals that, in five of those cases-Misc. No. 98-95, Misc. No. 98-96, Misc. No. 98-97, Misc. No. 98-148, and Misc. No. 98-278-then-Chief Judge Norma Holloway Johnson previously entered orders unsealing, in full or in part, certain documents, while other documents filed in these matters were never placed under seal. For example, then-Chief Judge Johnson issued public orders in these five cases unsealing certain documents in redacted form. The Clerk's Office is therefore ordered to make publicly available promptly on the Court's CM/ECF system and PACER those previously unsealed, in full or in part, or not filed under seal, documents, which documents are listed in the attachment to this Order.

         Not all documents in the Miscellaneous matters at issue have been unsealed. In considering the pending CNN/Polantz Unsealing Request for documents currently under seal in those matters, the positions of the U.S. Department of Justice (“DOJ”) and relevant stakeholders are relevant. To that end, DOJ is directed to provide its view, if any, on whether the eight Miscellaneous matters at issue and corresponding sealed docket entries may be unsealed. DOJ is also directed to provide notice to the individuals, who were recipients of the grand jury subpoenas at issue or otherwise involved in these matters, concerning the pending CNN/Polantz Unsealing Request, so that these individuals have an opportunity to inform the Court of their views, if any, and address in camera and ex parte any privacy concerns these individuals may have about the requested unsealing.

         Accordingly, it is hereby

         ORDERED that the Clerk's Office shall make publicly available promptly on the Court's CM/ECF system and PACER the docket numbers Misc. No. 98-95, Misc. No. 98-96, Misc. No. 98-97, Misc. No. 98-148, Misc. No. 98-202, Misc. No. 98-267, and Misc. No. 98-278; and it is further

         ORDERED that, in those cases, the Clerk's Office shall make any previously unsealed documents and any documents not filed under seal, as identified in the attachment to this Order, promptly available to the public; and it is further

         ORDERED that, pending further consideration by this Court, all other documents in those cases shall remain under seal; and it is further

         ORDERED that the U.S. Department of Justice shall, by February 23, 2018, provide the Court (1) its views as to whether the documents remaining under seal in the eight Miscellaneous dockets at issue may be unsealed, (2) confirm that the individuals, who were recipients of the grand jury subpoenas at issue or otherwise involved in these matters, have been notified of the ...


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