United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Filed August 14, 2001
Division No. 94-2
In re: Alphonso Michael (Mike) Espy
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
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Motion for the Public Release of Final Report
Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
O R D E R
It is ORDERED, ADJUDGED and DECREED that the
Motion of the Independent Counsel to release the final report
is granted.
The effects of this order to release shall be stayed for ten
days or until such time as the Supreme Court shall act upon
an application for stay, whichever shall last occur. The
purpose of this decretal paragraph is to permit any party
desiring to do so to seek a stay from the Supreme Court. If
no such stay is sought within the period granted by this
paragraph, then this stay shall be lifted. To achieve these
ends, it is ordered that counsel for any party seeking a stay
from the Supreme Court shall notify the Clerk of the United
States Court of Appeals for the District of Columbia Circuit
of that fact upon the filing of application for such stay, and
shall further notify the Clerk promptly upon learning of the
disposition of such application.
` Per Curiam
For the Court:
Mark J. Langer, Clerk
by
Marilyn R. Sargent
Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Filed August 14, 2001
Division No. 94-2
In re: Alphonso Michael (Mike) Espy
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
---------
Motion for the Public Release of Final Report
Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
Opinion for the Court filed by Presiding Judge Sentelle.
Concurring opinion filed by Senior Circuit Judge Cudahy.
Sentelle, Presiding Judge: This matter comes before us
on the Motion of the Independent Counsel ("IC") appointed
by the Court for the investigation of matters relating to
former Secretary of Agriculture Alphonso Michael Espy to
authorize public release of the final report of his investigation.
The IC has prepared the report pursuant to 28 U.S.C.
s 594(h) which requires that "[a]n independent counsel shall
... (B) before the termination of the independent counsel's
office under section 596(b), file a final report with the division
of the court, setting forth fully and completely a description
of the work of the independent counsel, including the disposi-
tion of all cases brought."
He addresses his motion to the Court pursuant to
s 594(h)(2) which authorizes the Court to "release to the
Congress, the public, or any appropriate person, such por-
tions of the report made under this subsection as the division
of the court considers appropriate."
As we have noted before, the reporting requirement is a
unique feature of the now-lapsed statute creating the unique
office of independent counsel. See In re North, 16 F.3d 1234,
1239 (D.C. Cir., Spec. Div. 1994) (per curiam) (noting that "no
precedent ... clearly guides our hand" in dealing with ques-
tions arising from the reporting requirement). The issuance
of a document issued by a prosecutor, not of itself under the
aegis of either the court or the grand jury, yet potentially
harmful to the reputation of persons investigated is certainly
troubling, and we have found it troubling in our prior pro-
ceedings under this statute. See generally id. at 16 F.3d
1234. Especially is this so given that such a report often, as
in this case, contains grand jury material governed by the
confidentiality provisions of Fed. R. Crim. P. 6(e).
Rule 6(e) Problems
Rule 6(e) declares that "an attorney for the government
... shall not disclose matters occurring before the Grand
Jury, except as otherwise provided for in these rules." Fed.
R. Crim. P. 6(e)(2). The independent counsel is an attorney
for the government and his release of grand jury material is
covered by Rule 6(e). In re North, 16 F.3d at 1242. Thus,
insofar as the report carries with it grand jury material, that
material may not be released to the public "except as other-
wise provided for in" the Federal Rules of Criminal Proce-
dure. In the past, we have found the relevant authority in
Fed. R. Crim. P. 6(e)(3)(C): "Disclosure otherwise prohibited
by this rule of matters occurring before the grand jury may
also be made--(i) when so directed by a court preliminary to
or in connection with a judicial proceeding." That exception
to the grand jury secrecy rule empowers courts to authorize
release of otherwise secret material governed by Rule 6(e), in
judicial proceedings. We have held that the Court's function
in the release of reports is a judicial proceeding, In re North,
16 F.3d at 1244. Therefore, this exception does apply to
permit the release of material otherwise covered by the rule if
we find such release to be otherwise lawful and appropriate.
The second difficulty which we have confronted in the past
is the assertion that only the court which empanels a grand
jury has jurisdiction over the release of grand jury material.
We have, however, authoritatively rejected that proposition,
holding that 28 U.S.C. s 594(h)(2), which empowers this
Special Division to " 'make such orders as are appropriate to
protect the rights of any individual named in such (indepen-
dent counsel's) report ...,' " taken in the context, confers
upon this Court the necessary jurisdiction, regardless of
whether that jurisdiction would otherwise be exclusive with
the empaneling court. In re Sealed Motion, 880 F.2d 1367,
1374-75 (D.C. Cir., Spec. Div. 1989) (per curiam) (quoting 28
U.S.C. s 594(h)(2)). Indeed, in Morrison v. Olson, the Su-
preme Court "compared the 'functions that the Special Divi-
sion is empowered to perform ... to functions that federal
judges perform in other contexts, such as deciding whether to
allow disclosure of matters occurring before the grand jury.' "
Id. at 1374 (quoting Morrison v. Olson, 487 U.S. 654, 681
(1988) (emphasis and ellipses supplied in In re Sealed Mo-
tion.) While the Supreme Court's language is obviously not a
holding, this strong dicta provided support for our holding in
In re Sealed Motion that the Division does possess the
necessary jurisdiction to make the Rule 6(e)(C) disclosure
determination.
We therefore remain satisfied that we have jurisdiction to
enter the order prayed by the Independent Counsel.
Propriety of Disclosure
In determining whether or not to order the disclosure of
independent counsel reports, and specifically of grand jury
materials contained therein, we adopted in In re North an
analysis weighing four not necessarily exclusive factors:
[1] whether the subjects of the investigations have al-
ready been disclosed to the public;
[2] whether the subjects do not object to the filings
being released to the public;
[3] whether the filings contain information which is
already publicly known; and
[4] whether the court filings consist of legal or factual
rulings in a case which should be publicly available to
understand the court's rules and precedents or to follow
the developments in a particular matter.
16 F.3d at 1237 (quoting Sen. Rep. No. 123, 100th Cong., 1st
Sess. 21 (1987), reprinted in 1987 U.S.C.C.A.N. 2150, 2170).
We apply those four parts today.
We first ask "whether the subjects of the investigations
have already been disclosed to the public." The subjects of
the investigation have already been officially disclosed in the
course of criminal trials. Therefore this factor weighs in
favor of disclosure.
We second ask "whether the subjects do not object to the
filings being released to the public." We have provided the
same opportunity in this case for comment that we provided
in In re North and in numerous other independent counsel
investigations. While we have received numerous comments,
only one comment, filed on behalf of three related individuals,
addresses the question of disclosure. As in In re North "the
vast majority of the persons named in the Report have not
expressed an opinion one way or the other." In In re North,
we determined that "counting noses does not decide the
question." Id. at 1240. Here, as in In re North, "[e]ven if
only one person objected, and fairness compellingly directed
withholding for his sake, we could withhold the Report...."
Id. In the prior case we found that on balance "this factor
[weighed] against release, but only slightly." Id. In the
matter before us, we have examined the single objection.
While we find it not at all frivolous, we further note that the
comment itself, while opposing publication, further requests
that "at a minimum ... this letter be appended to the
report." The report as contemplated will include the filing of
that letter. On balance, we conclude that this factor weighs
in favor of release, though only slightly.
The third factor, "whether the filings contain information
which is already publicly known," weighs most strongly in
favor of release. In In re North we noted that "[n]ot only is
the information widely known, it is widely known incorrectly."
Id. We therefore concluded that a more complete version of
the information coupled with the opportunity for comment by
the persons named created a strong impetus for release. The
same is true in the matter before us. As the one objecting
comment notes, "most of the story" about which the commen-
ter is concerned "was disclosed in a public forum, Secretary
Espy's trial." While the commenter goes on to note that the
report of the Independent Counsel arguably misleads the
reader about certain facts of the "story," the commenter's
own document which is to be filed with the report rebuts or at
least responds to the Independent Counsel's version. There-
fore, we conclude that the public interest in full disclosure of
that which has been partially or misleadingly disclosed al-
ready weighs in favor of the granting of publication.
The fourth factor "whether the court filings consist of legal
or factual rulings in a case which should be publicly available
to understand the court's rules and precedents or to follow
the developments in a particular matter"--as in In re North
is not of great weight on either side of the scale. By no
means does the report consist entirely or even marginally of
such rulings. If this factor weighs at all, it therefore weighs
against disclosure, but it does not weigh very much. As in In
re North, "[i]f our answer had been 'yes,' that might be a
factor tipping towards release. Where the answer is 'no,' it
affects the balance little one way or the other." Id. at 1241.
We therefore conclude as we did in In re North that the
motion for publication of the Independent Counsel's report,
inclusive of an appendix containing all comments filed by
persons named in the report, is granted. As in the prior case
we are filing contemporaneously herewith an order staying
publication for a period of ten days so that any party affected
by this order may if any such party so wishes seek a further
stay from the Supreme Court.
So ordered.
Cudahy, Senior Circuit Judge, concurring.
I concur fully in Judge Sentelle's opinion for the majority.
I write separately only to offer a further comment on the
difficult balance between fairness to the persons investigated
and the public interest in full disclosure, which is touched
upon by Judge Sentelle here and was explored more fully in
the leading precedent, In re: North, 16 F.3d 1234 (D.C. Cir.
1994). As the majority notes here, "The issuance of a docu-
ment issued by a prosecutor, not of itself under the aegis of
either the court or the grand jury, yet potentially harmful to
the reputation of persons investigated is certainly troubling,
and we have found it troubling in our prior proceedings under
this statute." Ante, at 2.
This investigation was perhaps unique in the annals of the
independent counsels in that its principal subject, Secretary
of Agriculture Michael Espy, was indicted on 39 counts by a
grand jury and acquitted on all counts by a trial jury after a
two-month trial. It is certainly not my role to comment on
those unique circumstances, although I will suggest that the
final report does little to explain why matters turned out as
they did.
I perhaps bring an unusual perspective to the matters
covered by this final report, since I presided for a number of
years over a firm intensively regulated by the United States
Department of Agriculture under the Meat Inspection Act.
So I fully understand the sensitivity of relations between such
firms and their managements and agents and officials of the
Department of Agriculture. This report at several points, in
attempting to establish the importance of this investigation,
cites Upton Sinclair's classic, The Jungle, whose purpose was
to expose labor conditions in the meatpacking industry but
which led instead to the passage of the Meat Inspection Act
in 1907.
The report, which with appendices is more than 400 pages
long, also includes a defense of the independent counsel
procedure against charges of excessive delay and cost and of
having a distorted focus. This is a bit of special pleading,
which is likely to be viewed skeptically. But it is fair
comment. The report also predictably deplores the injection
of politics into appraisals of an independent counsel's work,
though--considering that the subjects of theses investigations
are at the highest levels of political power--one could hardly
expect things to be sanitized against politics.
Trying to strike some kind of appropriate balance between
fairness to those investigated--whether convicted or acquit-
ted--or even indicted--and the public interest in disclosure of
how things looked to the prosecutor at various stages of the
investigations and the prosecutions may be almost impossible.
But in the last analysis, in this as in many similar situations,
public disclosure, with whatever safeguards can be put in
place, seems the more prudent course.