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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

April 16, 2018

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

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         Pending before the Court is a request from petitioner Cable News Network, Inc. (“CNN”) and its journalist Katelyn Polantz to unseal eleven Miscellaneous dockets associated with the 1998 investigation by Independent Counsel Kenneth W. Starr into the relationship of former President William Jefferson Clinton with a former White House intern. See generally Request to Unseal Dockets Related to the Independent Counsel's 1998 Investigation of President Clinton (“CNN/Polantz Unsealing Request”), ECF No. 1. Mr. Starr's investigation of the former President had begun four years earlier in 1994, when a Special Division of the D.C. Circuit appointed him as statutory independent counsel to take over an investigation of certain business transactions by then-President Clinton while he was Governor of Arkansas in the 1980s. In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1994 WL 913274, at *1 (D.C. Cir. Special Div. Aug. 5, 1994).[1]

         In 1998, shortly after former President Clinton answered written discovery requests in a civil lawsuit against him involving claims of sexual harassment, the Attorney General, on behalf of the Independent Counsel, requested that the jurisdiction of the Office of Independent Counsel (“OIC”) be expanded to permit inquiry into “whether Monica Lewinsky or others had violated federal law in connection with the Jones v. Clinton case.” Kenneth W. Starr, 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), Vol. I at 8. The OIC suspected that the former President may have lied under oath, in his written responses, about his sexual relations and sought to investigate whether the former President or his agents had pressured witnesses in the civil case to “lie in order to benefit the President.” Id. at 2-3, 7-8. A Special Division of the U.S. Court of Appeals for the District of Columbia Circuit (“Special Division”) approved this request and expanded the OIC's authority to investigate “whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law, ” In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1998 WL 472444, at *1 (D.C. Cir. Special Div. Jan. 16, 1998), reprinted in Starr Report, Vol. II at 6-7, thereby shifting the focus of the OIC's investigation from the former President's business dealings to his relationship with a former White House intern.[2]

         This latter investigation culminated, in September 1998, with a report totaling over 8, 000 pages, including multiple Appendices and Supplemental Materials, to the U.S. House of Representatives. In that Report, Starr highlighted three acts of former President Clinton uncovered in the investigation into the former President's relationship with a former White House intern that “may constitute grounds for an impeachment”: (1) “lying under oath, ” (2) “obstructi[ng] justice, ” and (3) making “false statements to the American people about his relationship with Ms. Lewinsky” and “attempt[ing] to conceal the truth about his relationship with Ms. Lewinsky from the judicial process” in the sexual harassment case. Starr Report, Vol. I at 165, 204, 210.[3] Among those over 8, 000 pages were citations to and quotations from transcripts of grand jury testimony and other grand jury documents, as well as details about litigation over compliance with grand jury subpoenas-information that was protected against disclosure by Federal Rule of Criminal Procedure 6(e) but was nevertheless disclosed pursuant to an order from the D.C. Circuit's Special Division, “for purposes of Federal Rule of Criminal Procedure 6(e)(3)(C)(i), ” permitting the Independent Counsel to “disclos[e] [ ] all grand jury material that the independent counsel deems necessary” to comply with his obligation of reporting to Congress. Starr Report, Vol. II at 10; see also Fed. R. Crim. P. 6(e)(2)(B) (prohibiting the disclosure of “matter[s] occurring before the grand jury” with certain exceptions).[4]

         Set against this extraordinary unveiling of grand jury material, CNN now seeks to unseal and make publicly available the docket numbers and documents filed in a total of eleven matters related to the OIC's investigation of former President Clinton's relationship with a former White House intern. These docket numbers were previously under seal, and therefore even the unsealed documents in these dockets were not publicly available. As an initial matter, upon receiving CNN's request, the Court directed the Clerk's Office to unseal the docket numbers and captions associated with the seven sealed matters initially identified by CNN and to “make publicly available promptly” on the Court's Case Management/Electronic Case Filing (CM/ECF) system and Public Access to Court Electronic Records (“PACER”) systems these seven Miscellaneous matter numbers, “as well as the documents from those matters that have been revealed in full in the Starr Report.” Order, dated Feb. 12, 2018 (“Feb. 12, 2018 Order”) at 3, ECF No. 3. At the Court's request, the Department of Justice (“DOJ”) promptly examined all eleven dockets and provided its views on whether the material in these eleven dockets may be unsealed. See DOJ Resp. CNN's Pet. Unseal (“DOJ Resp.”) at 1, ECF No. 20. For the reasons discussed below, the eleven dockets at issue will be largely unsealed and made publicly accessible on CM/ECF and PACER.

         I. BACKGROUND

         Petitioner CNN submitted a request, dated February 9, 2018, to unseal certain Miscellaneous matters arising from Independent Counsel Starr's 1998 investigation into then-President Clinton. See CNN/Polantz Unsealing Request at 1. Specifically, CNN averred that “these matters were widely covered by the media at the time, ” id., and that “basic information” about some of these matters had been “made public through the Independent Counsel's publication” of his final report to the U.S. House of Representatives, id. at 3. See also generally Starr Report. In its request, CNN identified eight Miscellaneous matters, which it described as follows:

98-mc-095 Bruce Lindsey testimony
98-mc-096 Sidney Blumenthal testimony
98-mc-097 Nancy Hernreich testimony
98-mc-148 Secret Service Testimony
98-mc-202 White House documents
98-mc-267 Presidential subpoena
98-mc-278 Lanny Breuer testimony
Unknown Terry Lenzner and Investigative Group Intl., Inc. subpoena.

         CNN/Polantz Unsealing Request at 1.[5]

         The first seven of these docket numbers are referenced in the Starr Report, and 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. See Starr Report, Vol. II at 183-200; Feb. 12, 2018 Order at 2. This disclosure was permitted by virtue of the D.C. Circuit's authorization for 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 with the D.C. Circuit. Order, In re Madison Guar. Sav. & Loan Ass'n, Special Div. No. 94-1 (D.C. Cir. filed July 7, 1998), reprinted in Starr Report, Vol. II at 10.

         These docket numbers were previously sealed and therefore “remain[ed] an opaque SEALED vs. SEALED, ” CNN/Polantz Unsealing Request at 1, and did not appear on the Federal Judiciary's electronic public access service, PACER. Upon receiving CNN's request, the Court directed the Clerk's Office to unseal the docket numbers and captions associated with the seven identified sealed matters and 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.” Feb. 12, 2018 Order at 3. In addition, DOJ was asked to review these eight dockets to (1) provide the Court with DOJ's “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 CNN/Polantz Request, and (3) provide in camera and ex parte any privacy concerns regarding such individuals.” Id. at 5. DOJ was granted access to the sealed records at issue to facilitate its review. See Order, dated Feb. 14, 2018, ECF No. 5.

         Former President Clinton intervened as of right in order to represent his interests, see Minute Order (dated Feb. 16, 2018), and provided, on February 23, 2018, his views on whether the dockets at issue may be unsealed. See generally Status Report of Former President Clinton (“Clinton Status Report”), ECF No. 15. The former President stated his “belie[f] that a great deal of the material at issue has already been made public almost twenty years ago in the 211-page Starr Report, the two-volume, 3183-page Appendices to the Starr Report, and the three-volume, 4610-page Supplemental Materials to the Starr Report, ” but that “there may be in the sealed dockets material that is still appropriately protected by Rule 6(e) of the Federal Rules of Criminal Procedure.” Id. at 1-2.

         Notably, former President Clinton also identified three additional sealed dockets, “closely related to those identified by Cable News Network, ” which “should now be unsealed.” Id. at 2. These dockets-Misc. No. 98-55, Misc. No. 98-177, and Misc. No. 98-228-“contain materials relating to litigation between then-President Clinton and the OIC concerning improper disclosures (‘leaks') by the OIC of grand jury material protected by Rule 6(e).” Id. at 3. DOJ was, accordingly, directed to include these three dockets in its review. See Minute Order (Feb. 23, 2018). CNN agreed with unsealing these three dockets, in part because disclosure “would further satisfy the substantial public interest in learning more about what led to the impeachment proceedings against President Clinton” and because the OIC “no longer exists and its 1998 investigation has long since concluded.” CNN Resp. to Status Report of Former President Clinton (“CNN Resp. Status Report”) at 2-3, ECF No. 16.

         Former President Clinton also proposed a process by which review of the sealed materials could occur, stating that “it would be appropriate for [DOJ] to notify [former President Clinton] of any putatively protected Rule 6(e) materials that affect [the former President], and to allow counsel to review these materials pursuant to appropriate confidentiality protections (e.g., a non-disclosure agreement). [Former President Clinton] will then be in a position to give the Court knowledgeable notice (in a sealed pleading, as appropriate) of its views.” Clinton Status Report at 2. With the concurrence of DOJ, this procedure has been adopted: on March 15, 2018, DOJ sought and was granted permission to disclose certain sealed materials to counsel for former President Clinton “in order to assist government counsel in evaluating whether particular information-currently sealed pursuant to Federal Rule of Criminal Procedure 6(e)-remains privileged and protected by grand jury secrecy.” Gov't Counsel's Mot. Allow Counsel for President Clinton Access to Sealed Materials at 1, ECF No. 17; see also Order, dated March 15, 2018, ECF No. 18.

         Upon completion of its review of both the eight dockets identified by CNN and the three dockets identified by former President Clinton, DOJ responded to CNN's Petition to Unseal and proposed particular documents within each of the eleven dockets that should be unsealed in full or only with redactions, or that should remain under seal. DOJ Resp. at 4-9. DOJ explained that, in its view, any proposed unsealing should be limited to information already disclosed in the Starr Report-reasoning that grand jury secrecy had been waived-but averred that information not discussed in the Starr Report should remain under seal. Id. Further, DOJ posited that, “[t]o the extent Petitioner or Intervenor objects to any redactions pursuant to Criminal Rule 6(e), the Department's view-consistent with the text of Rule [6](e)-is that the Court lacks the authority to unseal grand jury materials for reasons of ‘extreme public interest' or any other reason outside the reticulated exceptions to secrecy set forth in Rule 6(e).” Id. at 8. DOJ also stated that unsealing could be denied “based on the fact that the events underlying the grand jury proceedings are relatively recent and concern living individuals.” Id. at 9.[6] DOJ simultaneously filed, ex parte and in camera, a separate submission detailing its proposed redactions and corresponding reasoning. See generally DOJ Notice of In Camera, Ex Parte Submission, ECF No. 21; DOJ In Camera, Ex Parte Submission (“DOJ First Subm.”), ECF No. 26.

         Any interested parties were invited to respond to DOJ's proposed action, see Minute Order (Mar. 26, 2018). CNN was the only party to respond, requesting that the Court “release the contents of all eleven dockets identified by CNN and President Clinton, in the redacted format the government proposes in its ex parte submission.” CNN's Initial Reply Supp. Pet. Unseal (“CNN Reply”) at 2, ECF No. 22. CNN further asked that the Court “direct the government to publicly file a redaction log” and sought “leave to file a supplemental reply in support of its Unsealing Request” after reviewing DOJ's redactions. Id.[7] Intervenor former President Clinton has lodged no objections to the redactions or unsealing proposed by DOJ. After reviewing DOJ's proposed redactions and the underlying documents in the eleven dockets, the Court directed DOJ to provide additional information regarding its proposed redactions and sealing, which DOJ provided on April 13, 2018. See DOJ Second In Camera, Ex Parte Submission (“DOJ Supp. Subm.”) at 1-2, ECF No. 27. With that supplemental information in mind, each of the eleven dockets at issue is addressed in turn.

         II. LEGAL STANDARD

         Federal Rule of Criminal Procedure 6(e) prohibits the disclosure of “matter[s] occurring before the grand jury” and requires that “[r]ecords, orders, and subpoenas relating to grand-jury proceedings [ ] be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.” Fed. R. Crim. P. 6(e)(2)(B), (e)(6). Even when an investigation has concluded, grand jury proceedings generally remain secret in order to “ensure that ‘persons who are accused but exonerated by the grand jury will not be held up to public ridicule.'” In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007) (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)).[8] Nevertheless, “grand jury secrecy is not unyielding when there is no secrecy left to protect.” Id. (internal quotation marks and alteration omitted). As the D.C. Circuit has held, “when once-secret grand jury material becomes ‘sufficiently widely known, ' it may ‘lose its character as Rule 6(e) material.'” Id. (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)).

         Grand jury material may also be disclosed under various exceptions listed in Rule 6(e). As enumerated in Rule 6(e)(3), disclosure of grand jury material, other than the grand jury's deliberations or any grand juror's vote, may be made to “(i) an attorney for the government for use in performing that attorney's duty, ” “(ii) any government personnel . . . that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law, ” or “(iii) a person authorized by 18 U.S.C. § 3322.” Fed. R. Crim. P. 6(e)(3)(A)(i)-(iii).[9] In addition, an attorney for the government may “disclose any grand-jury matter to another federal grand jury, ” Fed. R. Crim. P. 6(e)(3)(C), and may also disclose “any grand-jury matter involving foreign intelligence, counterintelligence . . ., or foreign intelligence information . . . to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties, ” Fed. R. Crim. P. 6(e)(3)(D). Finally, a court may authorize disclosure, “at a time, in a manner, and subject to any other conditions that it directs, ” of grand jury material “preliminarily to or in connection with a judicial proceeding, ” among other circumstances. Fed. R. Crim. P. 6(e)(3)(E)(i).[10]

         Moreover, as numerous courts have recognized, a district court retains an inherent authority to unseal and disclose grand jury material not otherwise falling within the enumerated exceptions to Rule 6(e). See, e.g., Carlson v. United States, 837 F.3d 753, 763 (7th Cir. 2016) (“Rule 6(e) is ‘but declaratory' of the long-standing ‘principle' that ‘disclosure' of grand jury materials is ‘committed to the discretion of the trial court.'” (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959)); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997) (“[P]ermitting departures from Rule 6(e) is fully consonant with the role of the supervising court and will not unravel the foundations of secrecy upon which the grand jury is premised.”); In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1268 (11th Cir. 1984) (“[I]t is certain that a court's power to order disclosure of grand jury records is not strictly confined to instances spelled out in [Rule 6(e)].”); see also LCrR 6.1 (“Papers, orders and transcripts of hearings subject to this Rule, or portions thereof, may be made public by the Court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.”). “The D.C. Circuit has not specifically addressed the question of whether courts have inherent authority to order the release of grand jury records in circumstances not enumerated by Rule 6(e), ” In re Petition of Kutler, 800 F.Supp.2d 42, 47 (D.D.C. 2011), but has affirmed the district court's exercise of this inherent disclosure authority, see Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir. 1974) (indicating “general agreement” with the district court's exercise of inherent authority to disclose grand jury material).[11]

         The district court's inherent authority to disclose grand jury proceedings is apparent from both the court's supervisory authority over grand juries and the plain text of Rule 6(e). Grand juries have long been recognized as “a part of the judicial process, ” Cobbledick v. United States, 309 U.S. 323, 327 (1940), and “an appendage of the court, ” Brown v. United States, 359 U.S. 41, 49 (1959), over which the district court exercises supervisory authority, In re Sealed Case, 877 F.2d 976, 981 (D.C. Cir. 1989); see also United States v. Williams, 504 U.S. 36, 47 (1992) (acknowledging that the grand jury acts “under judicial auspices”); Levine v. United States, 362 U.S. 610, 617 (1960) (“The grand jury is an arm of the court . . . . The Constitution itself makes the grand jury a part of the judicial process.” (internal quotation marks omitted)). Thus, the “minutes and transcripts” of the grand jury are “records of the court.” United States v. Procter & Gamble Co., 356 U.S. 677, 684-85 (1958) (Whittaker, J., concurring); see also Carlson, 837 F.3d at 758-59; Standley v. Dep't of Justice, 835 F.2d 216, 218 (9th Cir. 1987) (“Grand jury materials are records of the district court.”); In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 31 (2d Cir. 1981) (“[G]rand jury proceedings remain the records of the courts, and courts must decide whether they should be made public.”); United States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979) (concluding that “grand jury minutes . . . are records of the court”). Indeed, prior to the adoption of the Federal Rules of Criminal Procedure, the Supreme Court had held that the release of sealed grand jury materials “rests in the sound discretion of the [trial] court” and that “disclosure is wholly proper where the ends of justice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-34 (1940); see also Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978) (“Every court has supervisory power over its own records and files.”).

         Rule 6(e) does not eliminate that authority-rather, the plain text of the Rule supports the court's inherent disclosure authority. The text of the Rule imposes a rule of secrecy on an enumerated list of people, stating that, “[u]nless these rules provide otherwise, ” the disclosure of “matter[s] occurring before the grand jury” is prohibited by “a grand juror, ” “an interpreter, ” “a court reporter, ” “an operator of a recording device, ” “a person who transcribes recorded testimony, ” “an attorney for the government, ” or “a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).” Fed. R. Crim. P. 6(e)(2)(B)(i)-(vii).[12] The district court is notably absent from this list of the persons bound by Rule 6(e)'s prohibition on disclosure.

         Nor do the “exceptions” listed in Rule 6(e)(3) and, in particular, Rule 6(e)(3)(E), impede the court's inherent disclosure authority. District courts are not expressly bound by Rule 6(e)(2) and, therefore, Rule 6(e)(3)'s exceptions to that rule do not affect the court's inherent authority. Moreover, Rule 6(e)(3)(E) lists several circumstances in which the court may, “at a time, in a manner, and subject to any other conditions that it directs, ” authorize the disclosure of grand jury matter. Fed. R. Crim. P. 6(e)(3)(E). While five specific examples of such situations are listed in the Rule, see supra, note 10, this list is not exclusive. Indeed, “[t]he presence of limiting language elsewhere in Rule 6(e), ” for example, in Rule 6(e)(2)(B), “indicates that its absence in (3)(E) is intentional.” Carlson, 837 F.3d at 764. In addition, Rule (6)(e)(3)(E) uses the word “may, ” which “usually implies some degree of discretion, ” United States v. Rodgers, 461 U.S. 677, 679 (1983), and also emphasizes the court's “complete discretion over the manner of disclosure” for the listed situations, Carlson, 837 F.3d at 765. Indeed, in recognizing that Rule 6(e)(3)(E) is permissive, not exhaustive, numerous courts have held that district courts have inherent authority to disclose grand jury records in circumstances that are not enumerated in Rule 6(e)(3)(E). See, e.g., Carlson, 837 F.3d at 764-65; Craig, 131 F.3d at 101-03; In re Am. Historical Ass'n, 49 F.Supp.2d 274, 285 (S.D.N.Y. 1999) (“[A] district court's ability to order release of grand jury materials has never been confined only to application of the exceptions to the secrecy rule specifically enumerated in Rule 6(e).”); In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F.Supp. 1219, 1229 (D.D.C. 1974), aff'd, Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (permitting the disclosure of grand jury materials even when none of the enumerated exceptions in Rule 6(e)(3)(E) applied).

         The court's inherent authority to disclose grand jury materials resembles, in many ways, a district court's inherent authority to hold litigants in contempt. Although judicial contempt powers are circumscribed both by statute, see 18 U.S.C. § 401, and by the Federal Rules, see Fed. R. Crim. P. 42, Fed.R.Civ.P. 11, 37(b), the Supreme Court has long recognized that “courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, ” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987); see also Ali v. Tolbert, 636 F.3d 622, 627 (D.C. Cir. 2011) (acknowledging that even if a litigant's actions were not sanctionable under Federal Rule of Civil Procedure 11, “sanctions may nonetheless be warranted under the district court's inherent authority”); Barry v. United States, 865 F.2d 1317, 1324 n.6 (D.C. Cir. 1989) (“[C]ourts already possess an inherent authority to punish criminal contempt without additional rules or other legislative enactments.”). Similarly, in the grand jury context, although various statutes, see, e.g., 18 U.S.C. ยง 3322, and the Federal Rules of Criminal Procedure limit the disclosure of grand jury materials, those authorities do not eliminate the ...


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