United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 24, 2005
Division No. 95-1
IN RE: HENRY G. CISNEROS
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ORDER
It is ORDERED, ADJUDGED, and DECREED that the
motion of the Independent Counsel to release the Final Report
and all comments not directed to Section V is granted in part and
denied in part; and that the motion of certain individuals named
in the Report to order that the Report not be released is granted
in part and denied in part. Specifically, the Court orders that the
Independent Counsel, with all deliberate speed, prepare for
release and make release of the now pending Final Report,
except for that portion designated as Section V.
It is FURTHER ORDERED that the Independent Counsel
prepare a sealed appendix consisting of Section V as ordered
modified in the accompanying opinion and the comments
directed to that Section for retention in the archives of the Court
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and for release to the Congress of the United States as
hereinafter ordered.
Specifically, the Independent Counsel shall prepare for
delivery copies of the sealed appendix for the use of the
Majority and Minority Leaders of the United States Senate; the
Speaker, Majority and Minority Leaders of the United States
House of Representatives; the Chairman and Ranking Minority
Member of the Senate Judiciary Committee; and the Chairman
and Ranking Minority Member of the Judiciary Committee of
the United States House of Representatives for circulation to
such of their members and staff as they deem necessary in the
pursuit of their legislative and oversight functions. Should the
Congress or its officials deem it necessary to circulate the
contents of the appendix beyond the members and staff of the
Congress, it is requested that the Congress give the Special
Division of the United States Court of Appeals for the District
of Columbia Circuit due notice of such intent, in order that the
Court may give notice to the Independent Counsel and parties
named in the Report as may be necessary under the
circumstances. Should the Special Division have ceased to
function by such time, it is then requested that the notice be
delivered to the Clerk of the United States Court of Appeals for
the District of Columbia.
On the Court’s own motion, the Court concludes that while
the complete termination of the Office of the Independent
Counsel in the above-captioned matter is not currently
appropriate under the standards set forth in 28 U.S.C. §
596(b)(2), the substantive duties of the Independent Counsel are
complete, and it is therefore ordered that the Independent
Counsel shall continue the operation of his office only to the
extent necessary to fulfill the following duties: (1) respond to
application for attorneys’ fees; (2) publish the Final Report; (3)
complete archiving responsibilities; (4) perform any remaining
3
administrative functions attendant to closing down his office.
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 Untied 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
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 24, 2005
Division No. 95-1
IN RE: HENRY G. CISNEROS
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
Opinion for the Special Division filed by Presiding Judge
SENTELLE.
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 concerning former
Secretary of Housing and Urban Development, Henry G.
Cisneros, to authorize public release of the Final Report of his
investigation. Other movants have sought an order of the Court
sealing the Report of the Independent Counsel in toto or in part.
The IC prepared the Report in question pursuant to 28 U.S.C. §
594(h), which requires that “before the termination of the
independent counsel’s office,” the independent counsel shall
“file a final report with the division of the court, setting forth
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fully and completely a description of the work of the
independent counsel, including the disposition of all cases
brought.” 28 U.S.C. § 594(h)(1)(B).
Background
By way of background, on May 24, 1995, the Special
Division appointed David M. Barrett as Independent Counsel to
investigate and, if necessary, prosecute offenses arising from
allegedly false statements that Secretary Cisneros had made to
the Federal Bureau of Investigation during the background
investigation leading to his appointment as HUD Secretary. In
September of 1997, the Independent Counsel obtained an
indictment of Linda Medlar, Cisneros’s mistress, for making
false statements to the Independent Counsel and the FBI. The
same indictment charged relatives of Medlar with bank fraud
and making false statements to federally insured financial
institutions. All defendants ultimately pleaded guilty.
In December of 1997, the Independent Counsel obtained
indictments of Cisneros, Medlar, and two of Cisneros’s
employees for making false statements to federal officials in the
1992-93 background investigation, and conspiring to make false
statements. After Medlar agreed to cooperate with the
prosecution in return for a dismissal of the charges against her,
Cisneros pleaded guilty to a misdemeanor count of lying to the
FBI. Charges against the remaining defendants were then
dismissed at the OIC’s request.
Based on evidence developed during the investigation to
that date, the Independent Counsel continued investigation as to
possible obstruction of justice offenses committed during the
investigation. The continuing investigation also concerned tax
matters for the year 1992, over which the Independent Counsel
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had gained jurisdiction by an amending order in March of 1997.1
The investigation ended recently. At the close of those
investigations, the Independent Counsel is obligated to file the
Report presently before the Court. Section V of the current
Report covers investigations of alleged obstructions of justice
and tax-related matters conducted largely after the conclusion of
all plea and sentencing provisions under the original grant of
jurisdiction.
The IC and the parties address their motions to this Court
pursuant to § 594(h)(2), which authorizes the Court to “release
to the Congress, the public, or any appropriate person, such
portions of a report made under this subsection as the Division
of the Court considers appropriate.”
On at least two prior occasions, we have noted that this
“reporting requirement is a unique feature of the now-lapsed
statute creating the unique office of independent counsel.” In re
Espy, 259 F.3d 725, 728 (D.C. Cir., Spec. Div., 2001). See also
In re North, 16 F.3d 1234, 1239 (D.C. Cir., Spec. Div., 1994).
Investigations conducted by other federal prosecutors normally
result in indictments, informations, or no official document of
any sort. The issuance of the unique independent counsel report,
a document issued by a prosecutor not under the aegis of either
the court or a grand jury, yet potentially harmful to the
reputations of persons investigated but not indicted or otherwise
charged, is “certainly troubling,” and in our prior considerations
of motions for release like the one before us today we have
found those considerations most vexing. In re Espy, 259 F.3d
1
While the Attorney General supported the proposed
expansion for the year 1992, the Independent Counsel also sought
jurisdiction to investigate tax offenses in the tax years 1989, 1991, and
1993. The Independent Counsel did not obtain those expansions of his
jurisdiction.
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at 728; see also In re North, 16 F.3d at 1236. This problem is
especially vexatious considering that such reports, as in North,
Espy, and the present case, often contain 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”
“must not disclose a matter occurring before the grand jury,”
“unless these rules provide otherwise.” Fed. R. Crim. P.
6(e)(2). As the independent counsel is an attorney for the
government, any release of grand jury material by him,
including his final report, falls within the protective provisions
of Rule 6(e). In re Espy, 259 F.3d at 728; In re North, 16 F.3d
at 1242. Under that rule, insofar as the report exposes grand
jury material, the material so exposed may not be released to the
public, except as provided for in the Federal Rules of Criminal
Procedure. On prior occasions we have found authority for
release in Fed. R. Crim. P. Rule 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.” In
re Espy, 259 F.3d at 728.2 Noting that this 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 ruled that the court’s function in
2
Subsequent to In re Espy, Congress amended Rule 6(e)
several times. See, e.g., Pub. L. No. 107-56, 115 Stat. 272, § 203(a)(1)
(the Patriot Act). The current text of Rule 6(e) differs in form but not
in substance. See Fed. R. Crim. P. 6(e)(3)(E)(i) (“The court may
authorize disclosure–at a time, in a manner, and subject to any other
conditions that it directs–of a grand jury matter preliminarily to or in
connection with a judicial proceeding.”).
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determining whether to release such reports is a judicial
proceeding. Id.; see also In re North, 16 F.3d at 1244. Thus, we
may order the release of the material in the report before us “if
we find such release to be otherwise lawful and appropriate.” In
re Espy, 259 F.3d at 728; see also Morrison v. Olson, 487 U.S.
654, 681 (1988) (comparing “the functions that the Special
Division 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”).
Therefore, as in In re North and In re Espy, we are satisfied
that we have jurisdiction to enter the order prayed by the
Independent Counsel. This does not, however, end the inquiry
as to whether we should grant the order releasing the material;
that is, we must still determine whether such release would be
otherwise lawful and appropriate.
Propriety of Disclosure
On the prior occasions on which we have issued opinions
governing the propriety of disclosure of independent counsel
reports, and more specifically of grand jury materials contained
in such reports, we have applied an analysis weighing four not
necessarily exclusive factors:
[1] whether the subjects of the investigations have already
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
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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.
In re North, 16 F.3d at 1237 (quoted and applied in In re Espy,
259 F.3d at 729). We again apply those factors to the Cisneros
Report.
We first ask “whether the subjects of the investigations have
already been disclosed to the public.” In both In re North and
In re Espy we found that the subjects had been officially
disclosed in the course of criminal trials. Therefore, in those
cases we found that the first factor weighed in favor of release.
In the present investigation, at least as to the parts of the
investigation contained in Section V of the Report, the same is
not true. Some subjects may have been disclosed; others have
not. That part of the investigation did not result in indictments,
certainly fostered no trials, and concerned individuals whose
identities have not been generally disclosed to the public. The
only appearances of the subjects in any proceedings were to the
grand jury under the secrecy rule of 6(e). In the present case,
factor one weighs against disclosure, at least as to Section V.
The second factor asks “whether the subjects do not object
to the filings being released to the public.” In In re North, In re
Espy, and the present investigation, as well as other independent
counsel investigations, we have provided opportunity for
comment. In In re North and In re Espy, we found that by far
the greatest number of subjects had not used that commenting
opportunity to object to the release of the Report. In the present
case many commenters, either implicitly or explicitly, question
the propriety of release. We therefore find that the second factor
weighs against a release of that portion of the Report dealing
with matters not explored in the criminal proceedings against
Secretary Cisneros or anyone else indicted as a result of the
7
investigation. Thus, we find that as to Section V of the Report,
but not the balance of the Report, that factor weighs against
release. As to the portions not contained in Section V, we do
not find sufficient objection to warrant withholding of the
Report.
Our reasoning with respect to the third factor overlaps that
applicable to the second factor. That factor asks “whether the
filings contain information which is already public known.” In
In re North, we noted that “[n]ot only is the information widely
known, it is widely known incorrectly.” In re North, 16 F.3d at
1240. 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.” In re
Espy, 259 F.3d at 729. Applying that reasoning in In re Espy,
we noted that the only objecting commenter in that case himself
pointed out that “most of the story” about which the commenter
was concerned “was disclosed in a public forum, Secretary
Espy’s trial.” Id. Again, the same is not true as to the matters
contained in Section V of the Report. As to those matters
directly concerned with Secretary Cisneros and persons
associated with him which were disclosed in the criminal
proceedings against Cisneros, those generally fall outside
Section V of the Report. As to them, this factor weighs in favor
of release. However, the matters contained in Section V
generally concern investigations that were conducted and grand
jury material that came into being or was accumulated after the
Cisneros proceedings. Therefore, this factor weighs against the
release of Section V of the Report.
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,” was of little weight in
either the In re North or In re Espy cases. See In re Espy, 259
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F.3d at 730; In re North, 16 F.3d at 1241. As we noted in those
cases, if that factor had generated an affirmative answer, it might
strongly weigh in favor of release. However, in this case, as in
In re Espy, we determine that “[b]y no means does the Report
consist entirely or even marginally of such rulings.” 259 F.3d
at 730. This is especially true of the Section V material.
Therefore, while this may not be the most important of the four
factors, it weighs little with respect to most of the Report, but
weighs negatively with respect to Section V.
While we concluded in In re North and In re Espy that the
motions for publication of the Independent Counsel’s Report,
together with comments filed by the persons named in the
Report, should be granted, here we make that ruling as to the
greater portion of the Report, that is, the parts contained in all
sections except Section V. We therefore order that the Report
of the Independent Counsel, together with commenters named
in parts of the Report other than Section V, should be published
to the public. With respect to Section V, the motion of the
Independent Counsel is denied, and we order that Section V of
the Report be not publicly disclosed. This same ruling applies
to those comments directed to the material in that section.
Release to Congress
As noted above, the statute provides that “the court may
release to the Congress, the public, or any appropriate persons
such portions of the report made under this subsection as the
Division of the Court considers appropriate.” 28 U.S.C. §
594(h)(2) (italics supplied). We are aware that there is
congressional interest in the contents of this Report. See
Editorial, 10 Years and Counting, N.Y. Times, Oct. 6, 2005, at
A36; Jonathan Weisman, Cisneros Convicted in ‘99, But the
Probe Goes On, Wash. Post, Oct. 1, 2005, at A1. The
continuing expenditure of government funds and resources
9
under the now-lapsed statute is obviously a matter within the
responsibility and concern of the Congress. We therefore have
provided in the accompanying order that the entire Report,
inclusive of Section V, be provided to appropriate officials of
the Congress for such distribution to other Members as they
deem necessary in the pursuit of congressional duties. We note
that in a separate order directed to the Independent Counsel, we
have provided for discrete deletions from all versions of the
Final Report in order to protect extremely confidential
information.
Conclusion
In summary, we grant the Independent Counsel’s motion to
publish his Report to the extent of the material concerning the
investigation of Secretary Cisneros and persons associated with
him; we however deny the motion as to the publication of
material contained in Section V of the Report except to the
extent set forth above as to the publication of the Report to the
Congress of the United States.
So ordered.