MEMORANDUM OPINION
AMY
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
Defendant
Roger J. Stone, Jr. has filed a number of motions attacking
the validity of the indictment pending against him. He asks
the Court to dismiss the indictment, to enjoin the
prosecution, and to order the government to provide discovery
related to the decision to bring this case in the first
place. While the Court will require the government to provide
the defendant with the bulk of the material redacted from the
Report of the Special Counsel that relates to him, it
concludes that the defense has not identified any legal
grounds that would support dismissing or enjoining this
action or authorizing discovery into the prosecutors'
internal deliberations. Indeed, the defendant acknowledged at
oral argument that many of his theories for why the
indictment is invalid are foreclosed by Supreme Court and
D.C. Circuit precedent that this Court is required to follow.
Thus, with the limited exception of the motion to compel the
production of the Report of the Special Counsel, which will
be granted in part, the motions will be denied. This opinion
does not assess, and it should not be interpreted as
expressing any point of view about, the strength of the
government's case. Defendant is presumed to be innocent
unless and until the government proves his guilt beyond a
reasonable doubt.
BACKGROUND
This
case arises out of the investigation conducted by Special
Counsel Robert S. Mueller III. On May 17, 2017, pursuant to
28 U.S.C. §§ 509, 510, and 515, Acting Attorney
General Rod J. Rosenstein appointed Mueller to serve as
Special Counsel for the United States Department of Justice.
Appointment of Special Counsel to Investigate Russian
Interference with the 2016 Presidential Election and Related
Matters, Order No. 3915-2017,
https://www.justice.gov/opa/press-release/file/967231/download
(“Appointment Order”). The Appointment Order
authorized the Special Counsel to investigate
(i) any links and/or coordination between the Russian
government and individuals associated with the campaign of
President Donald Trump; and
(ii) any matters that arose or may arise directly from the
investigation; and
(iii) any other matters within the scope of 28 C.F.R. §
600.4(a)[1]
and to
prosecute federal crimes arising out of them. Id.
¶¶ (b)-(c).
On
January 24, 2019, a grand jury returned a seven-count
indictment against defendant Roger Stone for obstructing a
congressional proceeding, lying to Congress, and tampering
with a witness to that proceeding. See Indictment
[Dkt. # 1]. According to the indictment, defendant is a
political consultant who served as an official on Donald
Trump's presidential campaign until approximately August
2015. Id. ¶ 4.
The
indictment alleges that in mid-2016, the Democratic National
Committee (“DNC”) learned that its computer
systems had been hacked, id. ¶¶ 1-2, and
that from approximately July through November of 2016, an
entity identified as “Organization 1” released
tens of thousands of documents stolen from the DNC and from
the personal email account of the campaign chairman of
then-presidential candidate Hillary Clinton. Id.
¶ 3. During this time period, defendant made public and
private statements that he had been in communication with the
head of Organization 1 about its releases of information that
would be damaging to the Clinton campaign. Id.
¶¶ 5, 6, 13, 14.
After
the November 2016 election, the U.S. House of Representatives
Permanent Select Committee on Intelligence
(“HPSCI”) was one of the congressional committees
that undertook to investigate Russian interference in the
2016 presidential election. Id. ¶¶ 7, 18.
As part of its investigation, the Committee asked defendant
to appear before it and to produce certain documents.
Id. ¶ 19. Defendant testified under oath before
the Committee on September 26, 2017, and the indictment
alleges that he made false statements to the Committee, lied
about whether he possessed the documents requested by the
Committee, id. ¶¶ 20-35, and attempted to
prevent another person from contradicting the allegedly false
account he had provided to the Committee. Id.
¶¶ 36-39. Stone is charged with one count of
obstruction of a proceeding of the House Committee (Count
One), id. ¶¶ 40-41; five counts of making
false statements to the Committee (Counts Two through Six),
id. ¶¶ 42-43; and one count of witness
tampering (Count Seven). Id. ¶¶ 44-45.
STANDARD
OF REVIEW
A
criminal defendant may move to dismiss an indictment before
trial based on a “defect in the indictment, ”
Fed. R. Crim. P. 12(b)(3)(B), including constitutional
challenges. See United States v. Eshetu, 863 F.3d
946, 952 (D.C. Cir. 2017), vacated in part on reh'g
on other grounds, 898 F.3d 36 (D.C. Cir. 2018);
United States v. Seuss, 474 F.2d 385, 387 n.2 (1st
Cir. 1973). “When considering a motion to dismiss an
indictment, a court assumes the truth of [the
indictment's] factual allegations.” United
States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015).
ANALYSIS
In the
set of overlapping dispositive and discovery motions to be
addressed in this opinion, the defendant raises the following
issues:
• In his motion to dismiss, defendant argues that his
indictment for making false statements to a Congressional
committee violates the principle of separation of
powers enshrined in the Constitution because
the legislative branch did not specifically refer the matter
to the executive branch for prosecution. See
Def's Mot. to Dismiss [Dkt. # 69] and Mem. of P. & A.
in Supp. of his Motion to Dismiss (“Def's
Mem.”) at 2-4.[2] Defendant's motion to dismiss due to
defects in the indictment also contends that the indictment
is invalid on this basis. Def's Mot. to Dismiss Pursuant
to Fed. R. Crim. Proc. 12(b)(3)(B) [Dkt. # 72] (“Defect
Mot”) at 1-4.
• Defendant argues that his indictment was unlawfully
obtained and should be dismissed because the appointment and
funding of the Special Counsel violated the
Appropriations Clause of the
Constitution. Def's Mem. at 4-16. He also seeks to enjoin
the prosecution on this basis. Mot. to Enjoin the Prosecution
[Dkt. # 71] (“Mot. to Enjoin”).
• Defendant argues that the Vesting Clause
and the Take Care Clause of the Constitution
prohibit any investigation of a President by the executive
branch, and that since his indictment grew out of such an
unlawful investigation, it must be dismissed. Def's Mem.
at 16-30.
• Defendant submits that his indictment was obtained in
violation of the Appointments
Clause of the Constitution because the Special
Counsel was not appointed or commissioned by the President,
and therefore, the charges must be dismissed. Def's Mem.
at 30-31.
• Under Rule 12(b)(3)(B) and United States
v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008,
the defendant seeks the dismissal of that portion of Count
One - charging obstruction of a congressional investigation -
that alleges he failed to turn over documents to the
Committee. Defect Mot. at 5-6. He argues that a failure to
produce documents voluntarily in the absence of a subpoena
cannot be the basis for a criminal charge. Id.
• Finally, defendant posits that he has been targeted
for prosecution due to his support of the President's
candidacy and his other First Amendment activities, and he
asks the Court to compel the prosecution to provide him with
an unredacted copy of the Special Counsel's report and to
authorize him to conduct other discovery to uncover evidence
related to his claim of selective
prosecution. Mot. to Compel Complete Report of
the Special Counsel [Dkt. # 70] (“Mot. to
Compel”); Mot. for Disc. Regarding Selective
Prosecution [Dkt. # 73] (“Disc. Mot.”).
As will
be set forth in more detail below, none of these theories
warrants dismissal of the indictment or an order enjoining
the prosecution, and beyond receiving portions of the Mueller
Report, the defendant may not embark on discovery concerning
the prosecutors' charging decisions.
I.
The Lack of a Congressional Referral Does Not Require
Dismissal of the Case.
Defendant
Stone has moved to dismiss Count One, which charges him with
obstructing the investigation conducted by the House
Permanent Select Committee on Intelligence, and Counts Two
through Six, which charge him with falsifying or concealing
material facts in his testimony before the Committee, on the
grounds that the matter was not referred to the Special
Counsel by Congress.[3] Def's Mem. at 2-4; see also
Defect Mot. at 1-4 (making the same argument). He proclaims,
without citing any legal authority, that the Executive
“may only act upon alleged criminal activity impacting
the Legislative Branch upon the receipt of a
‘referral' from Congress.” Def's Mem. at
2. The motion to dismiss on this basis will be denied.
Defendant
contends first that it would violate the separation of powers
principles embodied in the Constitution if the Court were to
permit this case to proceed. Def's Mem. at 2-4. “To
do so would allow the Executive Branch to invade and impede
Congress' right to conduct inquires, ” in violation
of the separation of powers doctrine. Id. at 3;
see also Id. at 4 (stating that “[t]o allow
the Executive Branch to roam the Halls of Congress to look
for prosecutable offenses sans a referral from the
Legislative Branch would violate the separation of powers
doctrine”). But the defendant misapprehends the
fundamental allocation of authority established in the
Constitution and ignores clear precedent that recognizes the
Executive's unfettered responsibility for law
enforcement.
The
Supreme Court has stated unequivocally: “the Executive
Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case.” United States
v. Nixon, 418 U.S. 683, 693 (1974). This long-settled
authority to initiate charges “lies at the core of the
Executive's duty to see to the faithful execution of the
laws.” Cmty. for Creative Non-Violence v.
Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); see
also United States v. Fokker Servs. B.V., 818 F.3d 733,
741 (D.C. Cir. 2016) (same). The Attorney General and his
designees are authorized to discharge this duty by statute
and under the authority of Article II of the Constitution.
Nixon, 418 U.S. at 694; see also 28 U.S.C.
§ 516 (“Except as otherwise authorized by law, the
conduct of litigation in which the United States . . . is
interested . . . is reserved to officers of the Department of
Justice, under the direction of the Attorney
General.”); 28 U.S.C. §§ 503, 509, 510, 515,
519, 547. Consequently, “[t]he Attorney General and
United States Attorneys retain ‘broad discretion'
to enforce the Nation's criminal laws.” United
States v. Armstrong, 517 U.S. 456, 464 (1996), citing
Wayte v. United States, 470 U.S. 598, 607 (1985).
Defendant's
argument is also inconsistent with the plain text of the
charging statutes, which do not specify the need for a
congressional referral as an element of the offense or a
prerequisite for prosecution. The false statements statute
imposes sanctions on:
whoever, in any matter within the
jurisdiction of the . . . legislative . . . branch of the
Government of the United States, knowingly and willfully . .
. makes any materially false, fictitious, or
fraudulent statement or representation . . . .
18 U.S.C. § 1001(a)(2) (emphasis added). Subsection (c)
identifies the particular legislative matters covered by the
provision, including: “any investigation or review,
conducted pursuant to the authority of any committee,
subcommittee, commission or office of the Congress.” 18
U.S.C. § 1001(c)(2). The repetition of the word
“any” reflects the intention to give the
provision broad scope, and when Congress enacted the
provision, it did not include any requirement that the matter
be referred for prosecution by the legislative body involved.
This is telling because Congress has spoken clearly when it
did intend to impose such a requirement: the statutory
provisions governing prosecution for contempt of Congress
expressly provide for a certification by Congress to the
United States Attorney for prosecution. See 2 U.S.C.
§§ 192, 194
Similarly,
the obstruction statute does not require a congressional
referral to prosecute. It covers:
[w]hoever corruptly, or by threats or force, or by any
threatening letter or communication influences, obstructs, or
impedes or endeavors to influence, obstruct, or impede . . .
the due and proper exercise of the power of inquiry under
which any inquiry or investigation is being had by either
House, or any committee of either House or any joint
committee of the Congress.
18 U.S.C. § 1505. So there is nothing in the charging
statutes curtailing the Attorney General's independent
power to investigate and prosecute these crimes.
In the
absence of constitutional or statutory support for his
position, defendant points the Court to the Rules of
Procedure for the Permanent Select Committee on Intelligence.
He speculates that the Special Counsel learned about the
substance of his testimony through some improper means, and
assumes that the then-minority members of the Committee must
have violated its internal Rule 12(a)(1)(D), which prohibits
Committee members from disclosing “the substance of any
hearing that was closed to the public.” Defect Mot. at
2.[4]
He posits that “[w]hatever made the Special
Counsel's Office aware of Stone's testimony to
Congress, or more precisely, characterized it as false and
drew attention to it, amounts to a violation of the House
rules because it was not formally and explicitly authorized
by the Committee.” Id.
There
is no precedent that would authorize the dismissal of an
indictment based on pure conjecture; nor has the defendant
pointed to any authority that holds that an alleged violation
of internal House Committee rules could invalidate an
indictment returned by a grand jury. Moreover,
defendant's motion fails to mention the fact that the
defendant brought attention to the substance of his HPSCI
testimony himself, by publicly releasing his written remarks
in advance of the hearing and by holding a press conference -
while still on Capitol Hill - immediately afterwards.
Gov't Opp. to Defect Mot. [Dkt. # 93] (“Defect
Opp.”) at 10-11, citing Interview with Roger Stone
(Sept. 26, 2017),
http://www.cnn.com/TRANSCRIPTS/1709/26/ip.02.html. Indeed,
Stone publicly mused that some of the legislators present
doubted his credibility: “I don't think that
members of the committee buy some of my claims, but they have
no evidence to the contrary.” Id. at 11,
quoting Interview with Roger Stone (Sept. 26, 2017).
Defendant did not deny these facts in his reply brief or at
the hearing. See Def.'s Reply to Defect Opp.
[Dkt. # 112] (“Defect Reply”); Tr. at 18.
The
Court also rejects any suggestion that the HPSCI hearing
transcript was improperly disclosed to the Department of
Justice. The record shows that the Department's Office of
Legislative Affairs formally requested that the Committee
provide the hearing transcript and other materials concerning
defendant to the Department of Justice. Tr. at 18:20-25; Ex.
A, Defect Opp. [Dkt. # 93-1] (“HPSCI Letter”). On
December 20, 2018, the then-Chair of the Committee, Devin
Nunes, transmitted the information to the Department
“[p]ursuant to a Committee vote” and “with
no restrictions on use by the [Special Counsel's Office]
or other components of the Department of Justice.”
HPSCI Letter at 1-2; see also Tr. at 8:21-9:4. At
the hearing, the defense conceded that there was nothing
improper about that exchange:
THE COURT: The committee transmitted the transcript to the
Office of Legislative Affairs at the Department of Justice .
. . . So, reading the transcript didn't violate any House
rule, if the chair of the committee - not some minority
member - passed it on; is that correct?
MR. BUSCHEL: I think that - that they certainly can share the
transcript, sure.
Tr. at
18:20-19:5.
Therefore,
defendant's argument that the prosecution is founded upon
an improper disclosure of information is unavailing, and he
can hardly claim that the Special Counsel reached out and
grabbed this issue without congressional participation or
assent.[5]
Finally,
defendant argues that in the absence of a congressional
referral, the government failed to establish the element of
materiality that is necessary to establish a violation of the
false statements statute. See 18 U.S.C. §
1001(a)(2); Defect Reply at 2. In Stone's view, the
indictment fails to state an offense since there was
“no allegation that Stone's voluntary testimonies
were deemed by the Committee to be ‘material,
'” Defect Reply at 3, and he insists that the lack
of a congressional referral proves his point because
“had the [HPSCI's] functions been impeded, a
referral would have been called for.” Id. at
2. Additionally, he argues that the grand jury lacked a basis
to find materiality “[a]bsent grand jury testimony
representing the Committee's views and an allegation that
the Committee communicated to the grand jury that Stone
impeded its work.” Id.; see also
Defect Mot. at 3 (“Without a referral and without a
presentation of any witness in the Committee room when Stone
testified, no one testified before the Grand Jury that
Stone's testimony was material to the House
Committee's investigation.”).
Defendant
misunderstands the law of materiality and the fundamental
nature of a motion to dismiss an indictment. First, the
Supreme Court has held that a statement is materially false
if it has “a natural tendency to influence, or [is]
capable of influencing, the decision of the decisionmaking
body to which it was addressed.” United States v.
Gaudin, 515 U.S. 506, 509 (1995). “A statement
‘need not actually influence an agency in order to be
material.'” United States v. Verrusio, 762
F.3d 1, 20 (D.C. Cir. 2014), quoting United States v.
Moore, 612 F.3d 698, 701 (D.C. Cir. 2010). So defendant
is incorrect as matter of law when he insists that the
government must prove that the alleged false statements
actually “impeded” the HPSCI's investigation.
And there is also no requirement that the government rely on
direct evidence to prove this element; it can be inferred by
the jury. As the D.C. Circuit explained in Verrusio,
the government is not obligated to “‘present any
testimony or other evidence specifically for the purpose of
establishing the materiality of [the defendant's] false
statement.' Rather, the jury can infer from other
evidence that the false statement ‘was capable of
affecting' the agency's functions.” 762 F.3d at
20-21, quoting Moore, 612 F.3d. at 702; see also
Gaudin, 515 U.S. at 512.[6] In any event, defendant's
complaints about the sufficiency of the evidence are
premature given the allegations in the indictment.
At this
stage of the proceedings, the Court “assumes the truth
of [the indictment's] factual allegations.”
Ballestas, 795 F.3d at 149. Dismissal “is
granted only in unusual circumstances” since it
“directly encroaches upon the fundamental role of the
grand jury.” Id. at 148. Importantly, an
indictment “need only contain ‘a plain, concise,
and definite written statement of the essential facts
constituting the offense charged.'” Id. at
149, quoting Fed. R. Crim. P. 7(c).
Here
the indictment plainly alleges that defendant's false
statements to the HPSCI were material. See
Indictment ¶ 43 (“[T]he defendant ROGER JASON
STONE, JR., knowingly and willfully made and caused to be
made materially false, fictious, and fraudulent statements
and representations.”). So the indictment satisfies
Rule 7(c).
Moreover,
it is not up to the Court to question whether the grand jury
had an adequate basis to come to this conclusion.
See Defect Reply at 2 (arguing that the grand jury
lacked evidence of materiality in the absence of a
congressional referral or witness). It is well established
that courts lack the authority to assess the sufficiency of
the evidence underlying a finding of probable cause. The
Supreme Court has emphasized:
“[A]n indictment ‘fair upon its face,' and
returned by a ‘properly constituted grand jury,
'” . . . “conclusively determines the
existence of probable cause” to believe the defendant
perpetrated the offense alleged. And
“conclusively” has meant, case in and case out,
just that. We have found no “authority for looking into
and revising the judgment of the grand jury upon the
evidence, for the purpose of determining whether or not the
finding was founded upon sufficient proof.” To the
contrary, “the whole history of the grand jury
institution” demonstrates that “a challenge to
the reliability or competence of the evidence”
supporting a grand jury's finding of probable cause
“will not be heard.” The grand jury gets to say -
without any review, oversight, or second-guessing - whether
probable cause exists to think that a person committed a
crime.
Kaley v. United States, 571 U.S. 320, 328 (2014)
(internal citations omitted).
Therefore,
the Court finds that that the lack of a congressional
referral has no bearing on the materiality element, the
indictment satisfies Rule 7(c), and there is no basis for
dismissing the false statements counts for failure to state
an offense under Rule 12(b)(3)(B)(v). Since the
defendant's contention that a congressional referral was
necessary is contrary to both the charging statutes and
“long-settled understandings about the independence of
the Executive with regard to charging decisions, ”
Fokker Servs., 818 F.3d at 738, and the lack of a
referral does not undermine the validity of the indictment,
the Court will deny defendant's motion to dismiss Counts
One through Six on those grounds.
II.
The Case Will Not Be Dismissed and the Prosecution Will Not
Be Enjoined Because the Special Counsel's Investigation
Does Not Violate the Appropriations Clause of the
Constitution.
Defendant
next seeks both the dismissal of the indictment and an
injunction halting the proceedings against him on the ground
that his prosecution violates the Appropriations Clause of
the Constitution. Def.'s Mem. at 4-16; Mot. to Enjoin.
The Appropriations Clause provides that “No Money shall
be drawn from the Treasury, but in Consequence of
Appropriations made by Law.” U.S. Const. art. I, §
9, cl. 7. It gives Congress “exclusive power over the
federal purse . . . ‘mean[ing] simply that no money can
be paid out of the Treasury unless it has been appropriated
by an act of Congress.'” Rochester Pure Waters
Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992),
quoting Cincinnati Soap Co. v. United States, 301
U.S. 308, 321 (1937). Defendant argues that because funding
for the Special Counsel's investigation was not
authorized by Congress, the Court must dismiss the indictment
obtained in contravention of the Constitution, Def.'s
Mem. at 4-16, and issue a permanent injunction against his
prosecution. Mot. to Enjoin.
A.
Defendant's request for equitable relief is
misplaced.
At the
outset, the Court notes that the proper avenue for defendant
to mount a legal challenge to the prosecution is through a
motion to dismiss under Federal Rule of Criminal Procedure
12. Thus, the motion for an injunction will be denied in
light of traditional abstention principles, the lack of a
showing of irreparable harm, and the availability of an
adequate remedy at law.
The
abstention doctrine was developed in the context of requests
to enjoin state criminal proceedings, but it has been applied
to attempts to enjoin ongoing federal prosecutions as well.
Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987);
Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. 2015). In
Younger v. Harris, 401 U.S. 37 (1971), the Supreme
Court held that a defendant was not entitled to federal
equitable relief against a state court prosecution where the
injury he faces was “solely that incidental to every
criminal proceeding brought lawfully and in good
faith.” Id. at 49 (internal quotation marks
omitted). According to the Court, this was not the sort of
“irreparable” harm needed to justify
extraordinary equitable relief: “[c]ertain types of
injury, in particular, the cost, anxiety, and inconvenience
of having to defend against a single criminal prosecution,
could not by themselves be considered ‘irreparable'
in the special legal sense of that term.” Id.
at 46. Unless the “irreparable injury” was
“both great and immediate, ” and involved a
“threat to the plaintiff's federally protected
rights . . . that [could not] be eliminated by his defense
against a single criminal prosecution, ” the Court
found that federal courts should abstain from interference
with state criminal proceedings. Id. Thereafter, the
Supreme Court has generally “upheld federal injunctions
to restrain state criminal proceedings only where the
threatened prosecution chilled exercise of First Amendment
rights.” Deaver, 822 F.2d at 69, citing
Wooley v. Maynard, 430 U.S. 705 (1977) (holding that
a federal court was not precluded from granting equitable
relief to enjoin prosecution where a state statute made it a
crime to obscure the words “Live Free or Die” on
a car license plate).[7] And here, defendant is not being
prosecuted for violating a law that specifically restricts
free expression.
While
it is true that the Supreme Court also premised the
Younger decision, in part, on principles of
federalism, Younger, 401 U.S. at 44 (“[T]he
National Government will fare best if the States and their
institutions are left free to perform their separate
functions in their separate ways.”), the D.C. Circuit
found abstention to be appropriate when it rejected an
attempt to use a civil action to stave off a federal criminal
prosecution as well. In Deaver v. Seymour, a former
White House official who was the subject of an investigation
being pursued by an independent counsel appointed under the
Ethics in Government Act was informed that the independent
counsel was about to ask the grand jury to return an
indictment. 822 F.2d at 67. The next day, he brought a civil
action for declaratory and injunctive relief that would stay
the prosecution while he challenged the constitutionality of
the independent counsel's authority. Id. at
67-68.[8]The trial court denied the motion for a
preliminary injunction, and the D.C. Circuit affirmed, citing
Younger. Id. at 68-69, citing 401 U.S. at 46.
The
Deaver opinion explained: “[e]ven were we
disposed to agree entirely with appellant's
constitutional argument, we think he has no right to an
injunction restraining a pending indictment in a federal
court, ” id. at 68, and it made it clear that
“defendants cannot, by bringing ancillary equitable
proceedings, circumvent federal criminal procedure.”
Id. at 71.
In
reaching its decision in Deaver, the D.C. Circuit
addressed its previous opinion in Juluke v. Hodel,
811 F.2d 1553 (D.C. Cir. 1987), in which it had refused to
dismiss a federal civil action seeking an injunction to
enjoin future prosecutions under allegedly unconstitutional
federal regulations.[9] The Juluke Court stated that the
Younger doctrine does not necessarily control a
federal civil proceeding to enjoin a federal criminal
prosecution because the same federalism concerns are not
present. Juluke, 811 F.2d at 1556-57. But the Court
also observed that a federal court may refuse to consider a
claim for injunctive relief if it would be “inefficient
to do so, because the same issues - the validity and
applicability of the regulations - would be decided in the
criminal action.” Id. at 1557. And the Court
emphasized the fact that the Juluke plaintiffs were
not seeking to enjoin any existing prosecutions; they sued to
enjoin future arrests for violations of the federal
regulations at issue, and therefore, the adjudication of
their criminal cases would not afford them the relief they
sought. Id.
The
Deaver Court did not view Juluke as an
impediment to dismissing Deaver's case. The opinion
reported that the Court could find no prior case in which a
federal court had enjoined a federal prosecutor's
investigation or presentment of an indictment.
Deaver, 822 F.2d at 69. More important, the
Court observed that when a prosecutor brings a case in
federal court, after indictment, defendants have “a
federal forum in which to assert their defenses - including
those based on the Constitution.” Id. The
Court recognized that a federal defendant would be afforded
an opportunity under Federal Rule of Criminal Procedure 12(b)
to move to dismiss an indictment based on defects in the
prosecution. Id. at 70. And the Court held that
because “[t]hese rules provide adequate, although
limited, opportunities for defendants to challenge
shortcomings in prosecutorial authority, ” it is
through these procedures, not equitable remedies, that a
criminal defendant should raise the alleged shortcomings and
constitutional concerns regarding his prosecution.
Id. at 71.
Twenty-eight
years after Deaver, in Jarkesy v. SEC, a
case involving an action against the Securities and Exchange
Commission by an investment adviser and manager seeking to
terminate administrative enforcement proceedings charging
them with securities fraud, the D.C. Circuit underscored that
the presence of federalism concerns was not a prerequisite
for abstaining from interfering in criminal proceedings:
True, Younger abstention is grounded in
considerations of federalism not implicated here. But the
rule derives from “the basic doctrine of equity
jurisprudence that courts of equity should not act, and
particularly should not act to restrain a criminal
prosecution, when the moving party has an adequate remedy at
law and will not suffer irreparable injury.”
Jarkesy, 803 F.3d at 26, quoting Younger,
401 U.S. at 43-44.
Stone's
motion to enjoin the prosecution falls squarely within the
scope of the Deaver and Jarkesy decisions
and the well-established limits on the invocation of
equitable remedies. Stone does not seek to enjoin any future
prosecution, see Stone's Reply to Corrected
Response to Motion to Dismiss and Enjoin [Dkt. # 110]
(“Def.'s Reply to Mot. to Dismiss”) at 14-15,
and the issue he raises in his request for an injunction -
that the appointment of the Special Counsel violated the
Appropriations Clause - is an issue that not only can be, but
has been, raised in a motion to dismiss filed under Rule
12(b). See Def.'s Mem. at 4-16. Stone identifies
no constitutional deprivation that he will suffer as a result
of the pendency of this case; while defendant states that the
“prosecution will drain Mr. Stone's resources and
damage his reputation, ” Def.'s Reply to Mot. to
Dismiss at 15, the Supreme Court has expressly rejected the
contention that this type of harm warrants federal
intervention. Younger, 401 U.S. at 46. Thus, an
injunction enjoining the prosecution or other equitable
remedies would be inappropriate, and the motion will be
denied.[10] The motion would have been denied in any
event since, as set forth below, it fails on legal grounds as
well.
B.
The 1987 permanent appropriation funds investigations by
special counsel appointed pursuant to 28
U.S.C. §§ 509, 510, and 515, including those
subject to the 1999 Special Counsel Regulation.
To
analyze the defendant's argument, it is necessary to
review the statute that authorizes the appointment of special
counsel, the Department of Justice regulations governing the
attorneys after they are appointed, and the history of the
now-expired Ethics in Government Act.
In a
statute enacted in 1966, Congress vested “[a]ll
functions” of the Department of Justice, and its
officers, agencies, and employees, in the Attorney General of
the United States. 28 U.S.C. § 509. The nation's
chief law enforcement officer is empowered by this law to
delegate any of those functions: “[t]he Attorney
General may from time to time make such provisions as he
considers appropriate authorizing the performance by any
other officer [or] employee, ” id. § 510,
and the statute expressly permits him to appoint and retain
an attorney from outside of the Department to act as
“special assistant to the Attorney General or special
attorney.” Id. § 515(a), (b).
“[A]ny attorney specially appointed by the Attorney
General under law, may, when ...