United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2011 Decided December 9, 2011
No. 10-5372
IN RE: CONTEMPT FINDING IN UNITED STATES V. STEVENS,
WILLIAM M. WELCH AND BRENDA K. MORRIS,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-mc-00273)
Mark H. Lynch and Catherine E. Stetson argued the cause
for appellants. With them on the briefs were Simone E. Ross,
William W. Taylor III, Chuck Rosenberg, and Michele W.
Sartori.
Steven H. Goldblatt, appointed by the court, argued the
cause as amicus curiae in support of the lower court’s
judgement. With him on the brief was Doug Keller, Supervisory
Attorney.
Before: ROGERS and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Senior Circuit Judge EDWARDS.
2
ROGERS, Circuit Judge: The issue in this appeal is whether
the district court erred in holding two Justice Department
attorneys in contempt without affording them the procedural
protections provided by Rule 42(a) of the Federal Rules of
Criminal Procedure for criminal contempt. We hold there was
no error. The character and nature of the contempt were civil.
Its purpose was to compel the production of documents to the
defendant as the district court had ordered. The contempt was
purged upon their production, the contempt was lifted, and no
sanctions were imposed because the contempt finding had
prompted compliance with the district court’s order.
I.
In October 2008, after a trial that the district court
characterized as “marred by repeated allegations of discovery
violations and prosecutorial misconduct,” In re Contempt
Finding in United States v. Stevens, (“Contempt Finding”), 744
F. Supp. 2d 253, 256 (D.D.C. Oct. 12, 2010), a jury convicted a
sitting United States Senator of accepting gifts without reporting
their value on his campaign disclosure forms, in violation of 18
U.S.C. § 1001(a)(1) & (2). Prior to sentencing, the Justice
Department received on December 2, 2008 a self-styled
“whistleblower” complaint from FBI Special Agent Chad Joy.
The complaint alleged misconduct by certain government
employees involved in the investigation and prosecution, but not
William M. Welch or Brenda K. Morris, the two Justice
Department attorneys now before this court who are,
respectively, the Chief and Principal Deputy Chief of the Public
Integrity Section, Criminal Division. The Department notified
the district court ex parte on December 11, 2008 by sealed
memorandum and requested the Joy complaint be filed under
seal. On December 19, after a sealed hearing attended by Welch
and Morris and at which Joy’s attorney asked that the complaint
3
be sealed based on Joy’s desire for whistleblower protection, the
district court ordered the Department to give an unredacted copy
of the complaint to the defendant and that a redacted copy of the
complaint be filed on the public docket.
A second hearing was held on January 14, 2009 regarding
whether, as the Department requested, redacted names should be
made public, including Joy’s. Welch advised the district court
that Joy did not qualify for whistleblower status. The district
court, concerned that it had been mislead at the December 19
hearing, sought to determine when Joy had been denied
whistleblower status. Morris stated Joy “had been given a letter
as early as December 4th telling him he had been denied
whistleblower status.” Status Hr’g Tr. Jan. 14, 2009 at 17. When
the district court inquired why it had not been informed, Welch
and Morris stated neither they nor the Public Integrity Section
had known. After further questioning, the district court stated
that it wanted a declaration from the Attorney General stating
who knew what when and told Welch and Morris that they had
an obligation to inform the district court that Joy had been
denied whistleblower status either before the December 19
hearing or as soon as they learned. The district court’s revised
order read:
ORDERED that the government produce all
communications to, from, or between anyone in [the
Office of Public Integrity], and any other office within
the D[epartment], including, but not limited to, the
[Office of Inspector General, the Office of Professional
Responsibility], the FBI, and the U.S. Attorney’s office
for the District of Alaska, between November 15, 2008
and the present, regarding the complaint filed by Agent
Joy, to be filed under seal with the Court, with a copy
provided to the defendant pursuant to the protective
4
order already in place in this case, by no later than
January 30, 2009.
Order Jan. 21, 2009 at 18.
On January 30, 2009, the Department filed its response, ex
parte, providing the documents to the district court for in
camera inspection. An accompanying memorandum stated that
“[r]ead literally, the January 21 Order would require the
disclosure of any communication ‘to, from, or between anyone
in [the Office of Public Integrity], and any other office within
[the Department]’ between November 15, 2008 and January 21,
2009,” related to Joy’s complaint, including communications
irrelevant to whether the Department had misled the court.
Gov’t’s Submission in Response to the Court’s Jan. 21, 2009
Order at 12. The Department accordingly limited its production
to documents concerning who within the Department knew
about Joy’s whistleblower status and when they knew it, and
objected to any broader disclosure. It asked for a two-week stay
of the January 21 order if the district court disagreed, so the
Department could seek reconsideration or appellate review. The
Department provided only a redacted version of its
memorandum to the defendant, stating “it has become apparent
that compliance would require the production of substantial
amounts of privileged and work-product protected materials.”
Id. at 13. It requested advance notice of any decision by the
district court to release the documents to the defendant. The
memorandum was signed by Patty Stemler, the chief of the
Appellate Section, Criminal Division, Welch, and Morris.
On February 2, 2009, the defendant moved for the district
court to “hold the government in contempt and require
immediate compliance with the January 21 Order.” Sen.
Stevens’s Mot. to Dismiss or for a New Trial, or in the
Alternative, Mot. to Hold Gov’t in Contempt for Violating
5
Court’s Jan. 21, 2009 Order at 12. The motion argued that
although the January 21 order was “unambiguous,” and the
district court had warned that motions for reconsideration be
filed well in advance of the deadline and parties refrain from ex
parte communications, the Department had not turned over the
documents nor sought reconsideration of the district court’s
order, but instead “simply violated the Order and filed a last-
minute ‘conditional’ request for a stay that could not have been
acted upon before the compliance deadline.” Id. at 7 (emphasis
in original). Arguing further that “[t]he government has
flagrantly disobeyed the Court’s order,” the motion urged that
“only a contempt sanction can ensure compliance.” Id. at 11.
The motion cited authority for using civil contempt to ensure
compliance with a court order for document production, see id.
at 11–12 (citing Fannie Mae Securities Litigation, 552 F.3d 814,
823–24 (D.C. Cir. 2009)), and argued that to the extent the
Department claims the documents are privileged “those
documents should be ordered produced to the defense as a
remedy for the government’s contempt,” id. at 12.
On February 3, 2009, the district court ordered the
Department to respond to the motion by February 9 and to
“include a detailed privilege log for each communication it
seeks to withhold,” with points and authorities. Order Feb. 3,
2009 at 3. It also called for a declaration from “an official with
oversight responsibility for the Civil Division . . . and any and
all relevant communications between attorneys in the Civil
Division and attorneys within the Public Integrity Section or the
Appellate Section of the Criminal Division.” Id. at 5. The
Department timely filed its response, “waiv[ing] any assertion
of work-product protection that might otherwise apply to those
documents in the privilege log for which no specific basis for
protection is provided.” Gov’t’s Consolidated Resp. to the
Court’s Feb. 3, 2009 Order and to Def’s Mot. to Dismiss or for
a New Trial, or in the Alternative, Mot. to hold the Gov’t in
6
Contempt at 3 n.1. The Department also insisted that “nothing
in the record of this case suggests that the Court must sanction
the Government to ensure its compliance with court orders.” Id.
at 14–15.
At a status hearing on February 13, 2009, Kevin Driscoll,
for the Department, advised the district court that the
Department was not asserting work-product privilege for
“approximately 33 documents” and would turn them over to the
defendant “forthwith.” Status Hr’g Tr. Feb. 13, 2009 at 10, 11.
He explained the Department had yet to turn them over to the
defendant because it was waiting to see if the district court
agreed with its interpretation of the January 21 order, but he
conceded there was “no reason” these documents had not been
produced to the defendant. Id. at 11. The district court
thereupon found Welch, Morris, Stemler and Driscoll in
contempt, stating that the court had ordered the documents to be
turned over to the defendant or to invoke a privilege and that the
Department advises “there’s no reason why they weren’t turned
over.” Id. Observing it would “deal with whatever sanctions
are appropriate at the conclusion of this case,” id., the district
court ordered that “those documents [be] turned over today
before the close of business . . . [by] five o’clock,” id. at 11–12.
The Department turned over the documents to the defendant
later that day.
By minute order of February 14, 2009, the district court,
“[u]pon reflection,” sua sponte withdrew its finding of contempt
with respect to Driscoll. Minute Order Feb. 14, 2009. Stating
it had held four Department attorneys in contempt “for failure to
comply with this Court’s January 21, 2009 and February 3, 2009
Orders, after the attorneys acknowledged that they had no reason
for failing to comply with the Orders, they simply had not
complied,” the district court noted that “Driscoll did not sign the
relevant pleadings, has not filed an appearance in this case, and
7
appears to have been brought in by his supervisors only recently
for the limited purpose of addressing a discrete issue.” Id. By
contrast, “the three senior [Department] attorneys present at the
hearing did sign the relevant pleadings and have been working
on the specific issues related to the Court’s January 21, 2009 and
February 3, 2009 Orders for months.” Id. Thus, “under the
circumstances, it was those attorneys’, and not Mr. Driscoll’s,
responsibility to ensure that the government compiled with the
Court’s Orders.” Id.
On June 2, 2009, Stemler filed a motion to vacate the
contempt finding on the ground that she was wrongly held in
criminal contempt because she did not have the requisite intent
to act wrongfully and was not afforded the procedural
protections required by Criminal Rule 42(a). Stemler’s motion
was placed on the miscellaneous docket as In re: Contempt
Finding in United States v. Stevens, Civil Miscellaneous, No.
1:09-mc-273. Stemler, Welch, and Morris were listed as
petitioners; a copy of the February 14, 2009 minute order in the
criminal case was the first docket entry.
On October 12, 2010, the district court denied Stemler’s
motion to vacate the contempt finding, but lifted the contempt
finding nunc pro tunc as to Stemler, Welch, and Morris because
they had purged themselves of contempt on February 13, 2009,
and dismissed the case. See Order Oct. 12, 2010; Contempt
Finding, 744 F. Supp. 2d at 264. The district court stated that
Stemler, Welch, and Morris had been held in civil contempt
because the contempt was coercive in nature and they had
purged themselves of the contempt when they turned over the
documents to the defendant. Contempt Finding, 744 F. Supp. 2d
at 256, 264. Concluding that the Department’s “belated
production of all documents required by the Court’s January 21,
2009 Order mooted any need for coercion,” the district court
“therefore finds that the contempt has been purged, and finds it
8
appropriate to lift the contempt finding of February 13, 2009 as
of the date and time at which the government complied with the
January 21, 2009 Order.” Id. at 264 (internal quotation marks
and citations omitted). “Accordingly, Ms. Stemler, Mr. Welch,
and Ms. Morris are no longer in contempt for their violation of
the Court’s January 21, 2009 Order.” Id.
Welch and Morris appeal, contending that the district
court’s contempt finding was criminal, procedurally improper,
and should be vacated. Our review is de novo.1 See Salazar ex.
rel. Salazar v. Dist. of Columbia, 602 F.3d 431, 436–37 (D.C.
Cir. 2010); United States v. Gatling, 96 F.3d 1511, 1521 (D.C.
Cir. 1996).
II.
The framework for determining whether a contempt is civil
or criminal is described in a series of Supreme Court cases,
notably in Gompers v. Bucks Stove & Range Co., 221 U.S. 418
(1911). There, the Supreme Court acknowledged that
“[c]ontempts are neither wholly civil or altogether criminal,”
and observed that “it may not always be easy to classify a
particular act as belong to either one of these two classes.” Id.
at 441. The Court instructed, “[i]t is not the fact of punishment,
but rather its character and purpose, that often serve to
distinguish between the two classes of cases. If it is for civil
contempt the punishment is remedial, and for the benefit of the
complainant. But if it is for criminal contempt the sentence is
punitive, to vindicate the authority of the court.” Id. Drawing
on Gompers in Hicks on Behalf of Feiock v. Feiock, 485 U.S.
1
This court appointed amicus to present arguments in support
of the February 13, 2009 finding of contempt, Order No. 1300685
(D.C. Cir. Mar. 30, 2011), and expresses appreciation for his
assistance.
9
624 (1988), the Court stated that “conclusions about the
purposes for which relief is imposed are properly drawn from an
examination of the character of the relief itself,” not from “the
subjective intent of a State’s laws and its courts.” Id. at 635–36.
In International Union, United Mine Workers v. Bagwell, 512
U.S. 821 (1994), the Court summarized the distinction, stating
that civil contempt is ordinarily used to compel compliance with
a court order, although in some circumstances a civil contempt
sanction may be designed to “compensate[] the complainant for
losses sustained.” Id. at 829. By contrast, criminal contempt is
used to punish, that is, to vindicate the authority of the court
following a transgression rather than to compel future
compliance or to aid the complainant. Id. at 828.
“Under that analysis, this case is straightforward and the
district court correctly characterized the contempt as civil.”
Amicus Br. 25. The February 13, 2009 order had as its purpose
to compel the Department’s production of documents to the
defendant in accordance with the January 21, 2009 order. This
is a classic use for civil contempt. “Contempts such as failure
to comply with document discovery” are “appropriate for
imposition through civil proceedings” because they “impede the
court’s ability to adjudicate the proceedings before it and thus
touch upon the core justification for the contempt power.”
Bagwell, 512 U.S. at 833. The defendant’s motion for contempt
focused on ensuring the documents were turned over as the
district court had ordered on January 21, 2009. This coercive
purpose was confirmed in the February 13 contempt finding and
the February 14 minute order. The absence of sanctions did not
— as in Cobell v. Norton, 334 F.3d 1128, 1145 (D.C. Cir.
2003), on which Welch and Morris rely — obscure the nature
of the contempt. As amicus points out: The district court
confirmed in its memorandum opinion of October 12, 2010 that
Welch and Morris had purged themselves of contempt when
they turned over the documents. It lifted the contempt and
10
imposed no sanctions because the contempt finding had
prompted them to comply with the district court’s prior order.
Because they were not sanctioned, and because the contempt
was purged, Welch and Morris were held in civil contempt. See
Salazar, 602 F.3d at 438.
Welch and Morris contend the district court’s February 13,
2009 contempt ruling was a finding of criminal contempt for
three reasons: (1) The district court stated it intended to impose
sanctions at a later date; (2) the alleged contempt was not
immediately purged by the Department’s compliance with the
district court’s January 21, 2009 order; and (3) the district court
punished them by reprimanding them in open court for what it
characterized as “outrageous” behavior by the Department.2
As regards their first point, Welch and Morris maintain that
at no point did the district court suggest that compliance by the
Department would be adequate to purge the contempt and its
“stated intention to impose sanctions at a later date should be
dispositive of the criminal nature of the contempt.” Appellants’
Br. 21. In fact, the district court told them at the February 13,
2
Welch and Morris state in a footnote of their opening brief
that the district court abused its discretion in finding them to be in
civil contempt because their failure to comply with the district court’s
order was an “oversight.” Appellants’ Br. 26 n.11. This argument
would be waived because it appears only in a footnote, without
citation to authority or to the record. Doe v. Exxon Mobil Corp., 654
F.3d 11, 50 n.37 (D.C. Cir. 2011); see also NLRB v. Blevins Popcorn
Co., 659 F.2d 1173, 1184 n.67 (D.C. Cir. 1981) (holding that “[s]ince
the purpose [of civil contempt] is remedial it matters not with what
intent the [contemnor] did the prohibited act”) (quoting McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). On reply,
however, they clarify that they “are not arguing that they were
improperly held in civil, as opposed to criminal, contempt.” Reply Br.
12 n.3
11
2009 hearing precisely what they needed to do: turn over the 30
or so documents before 5 p.m. that day. Whether or not they
were explicitly told the contempt would be thereby purged, it
was in fact purged once they complied with the district court’s
order, a classic identifier of civil contempt. See Bagwell, 512
U.S. at 828.
Second, they note that the district court left the contempt
standing after the Department complied with the January 21,
2009 order, after lifting the finding as to Driscoll on February
14, 2009. Reliance on the timing of the district court’s decision
to lift the contempt is misplaced. Welch and Morris, who are
experienced attorneys at the Department, could have asked the
district court for clarification of the nature of the contempt at
the February 13 hearing or afterwards, yet they never did. The
fact that the district court did not act sua sponte the following
day as to Welch and Morris as it did for Driscoll, either to
reverse itself or lift their contempt, is of no moment. The
district court identified a relevant distinction between their
status and Driscoll’s. And the district court decided to postpone
consideration of sanctions because, as they knew, it was in the
midst of the criminal trial where, prior to sentencing, a
complaint had been filed alleging misconduct by the
Department. When the district court did address sanctions, it
concluded there was no need for them in view of the
Department’s “belated production” of the required documents,
and lifted the contempt as of the time of production. Contempt
Finding, 744 F. Supp. 2d at 264. Moreover, they misread the
February 14, 2009 minute order as confirming their contempt,
Reply Br. 7, when, in fact, the district court was recounting
what it had done the day before. In relying on Driscoll’s
statement on February 13, 2009 that the Department would
“forthwith” produce the documents, Reply Br. 9, they ignore the
distinction between a promise to take action and action that
should already have been completed.
12
Third, Welch and Morris maintain that the district court’s
reprimand constituted criminal contempt. Relying on Cobell v.
Norton, 334 F.3d 1128 (D.C. Cir. 2003), they suggest a
reprimand, particularly where the contemnor is a public official
acting in his or her official capacity, is a criminal contempt.
They focus on the following italicized words used by the district
court in finding the prosecution team in contempt:
I’ll deal with the sanctions associated with the
[contempt] at a later date, but that’s outrageous for the
Department of Justice, the largest law firm on this
planet, to come before a federal judge and say, yeah,
Judge, you know, we recognized your order, we
realized it, and we just haven’t gotten around to
complying with it, and we really don’t have a good
faith reason or any reason for not having complied
with it. That is not acceptable in this court and that’s
the reason why I’m adjudicating those attorneys in
contempt.
Status Hr’g Tr. Feb. 13, 2009 at 13 (emphasis added). They
assert that these words are “the hallmarks of a punitive
contempt order,” Appellants’ Br. 25, illustrated by the district
court’s characterization of the failure to comply with the
January 21, 2009 order as “outrageous” and “not acceptable.”
In finding them in contempt, they conclude, the district court
sought to “[v]indicat[e] a perceived affront to its authority,”
Appellants’ Br. 25, which they maintain is the purpose of
criminal contempt and not an interest addressed by civil
contempt.
All three grounds that Welch and Morris present for the
conclusion they were held in criminal contempt focus primarily
on what the district court said or did despite the Supreme
Court’s instruction that conclusions about the type of contempt
13
are to be drawn from an examination of the relief itself. See,
e.g., Bagwell, 512 U.S. at 828; Hicks, 485 U.S. at 635–36. They
resist the idea that the district court might sua sponte impose an
unconditional compensatory sanction, which is compatible with
civil contempt, see Local 28 of Sheet Metal Workers’ Int’l Ass’n
v. EEOC, 478 U.S. 421, 443 (1986); see generally 4 Dep’t of
Justice Crim. Resource Manual, Tests for Distinguishing
Between Civil and Criminal Contempt, 9 § 757 (2011), or
determine, as occurred, no further sanction was required.
Further, they cite no case in which remarks like those on which
they rely were held to transform civil contempt into criminal
contempt, and their reliance on Cobell is misplaced.
In Cobell, the district court stated in a published opinion
that the Interior Department was “an embarrassment to the
federal government,” noted that it was “saddened and disgusted
by the Department’s intransigence,” and stated that the Secretary
and Assistant Secretary could “now rightfully take their place .
. . in the pantheon of unfit trustee-delegates.” 334 F.3d at 1136
(citing Cobell v. Norton, 226 F. Supp.2d 1, 125, 113, 161
(D.D.C. 2002) (“Cobell Contempt Opinion”)). The district
court’s 152 page opinion followed a 29-day bench trial on the
contempt charges in a class action that had resulted in multiple
appeals and the district court had criticized the responses of
several Administrations to its orders. See, e.g., id. at 1134. On
appeal this court concluded the contempt was criminal in view
of the district court’s “exceedingly strong words” in finding the
defendants in contempt, suggesting it intended the finding as a
reprimand, id. at 1146, and the lack of “any suggestion that the
defendants could yet comply [with its orders] and thereby purge
themselves of the contempt,” id. at 1147. This court observed
that the district court had accused the Secretary and Assistant
Secretary of “committ[ing] a fraud on the Court.” See id. at
1145 (quoting Cobell Contempt Opinion, 226 F. Supp.2d at
161). Here, by contrast, the district court’s extemporaneous
14
remarks upon finding Department attorneys in contempt were
significantly less harsh than the district court’s statements in the
Cobell Contempt Opinion. For better or for worse, commenting
that a party’s conduct is “unacceptable” or even “outrageous” is
neither unprecedented nor exceptional in the course of trial
litigation. See Amicus Br. 37 n.3 (citing cases from the Second,
Fifth, and D.C. Circuits). By using such language the district
courts ensure the “incidental effect” of a finding of civil
contempt will be “a vindication of the court’s authority” to issue
the original order. Gompers, 221 U.S. at 443. This incidental
effect does not change the nature of the contempt. See id.
Accordingly, because the purpose and character of the
contempt found on February 13, 2009 were civil in nature, the
district court did not err by failing to provide Welch and Morris
with the procedural protections afforded by Federal Rule of
Criminal Procedure 42(a), we affirm the February 13, 2009 and
October 12, 2010 orders. See Contempt Finding, 744 F. Supp.2d
at 264.
EDWARDS, Senior Circuit Judge, concurring: I am pleased
to join the opinion for the court. I write separately to respond
briefly to Appellants’ claim that they have been stigmatized. I
fully understand the personal and professional concerns raised
by Appellants, but I am unpersuaded by their legal argument.
Appellants contend that “[t]he District Court ‘adjudicat[ed]’
[them] in contempt because it believed that their purported
failure to comply with the January 21, 2009 order was
‘outrageous’ and ‘not acceptable.’” Opening Br. of Appellants
at 25. According to Appellants, the comments of the District
Court “are the hallmarks of a punitive [criminal] contempt
order.” Id. As the opinion for the court makes clear, this claim
is without merit.
Given the fallacy of Appellants’ principal claim, the
disposition of this case does not seem difficult. On the record
before us, there can be little doubt that Appellants were cited for
civil, not criminal, contempt. It is also noteworthy that
Appellants “are not arguing that they were improperly held in
civil, as opposed to criminal, contempt.” Reply Br. at 12 n.3.
Therefore, “[b]ecause the contempt has been purged, the issue
presented by appellant[s] is moot.” United States v. Griffin, 816
F.2d 1, 7 n.4 (D.C. Cir. 1987) (citation omitted). One wonders,
then, why Appellants have pursued this appeal.
During oral argument, Appellants’ counsel essentially
claimed that Appellants were seriously stigmatized by the strong
words used by the District Court and that this stigma has
impaired their good standing in the legal profession. Counsel
went so far as to suggest that, going forward, Appellants will be
required to list themselves as criminal contemnors on state bar
reports, personnel records, and job applications. As I understand
their argument, Appellants seem to believe that, because the
stigmatizing effects of their contempt citations are so great, “the
contempt finding here was unmistakably punitive – and
therefore criminal – in nature.” Opening Br. of Appellants at 26.
They want their day in court, in an adjudication over what they
believe are citations for criminal contempt, to clear their names.
2
I understand Appellants’ apparent desire for public vindication,
for I certainly know that no responsible member of the legal
profession relishes being accused of “outrageous” and
“[un]acceptable” conduct in judicial proceedings. Indeed, no
good attorney looks to be publicly accused of failing in her or
his professional responsibilities, whether or not the accusation
arises in the context of a contempt citation. The problem here
is that Appellants’ argument is a classic non sequitur. There is
no viable connection between the premise of Appellants’
argument – i.e., they were seriously stigmatized by a strong
judicial admonition – and their conclusion – i.e., they were held
in criminal contempt.
First, to clarify this on the record, it simply cannot be so
that, following the issuance of our judgment in this case,
Appellants will be required to list themselves as criminal
contemnors on state bar reports, personnel records, job
applications, or any other such papers. Such a disclosure would
be a fabrication. Our decision in this case confirms, once and
for all, that Appellants’ conduct in this case did not result in a
finding of criminal contempt. Therefore, Appellants can never
face the opprobrium that might have come had they been held in
criminal contempt.
Second, Appellants’ concerns over the possible stigmatizing
effects of the civil contempt citations are undoubtedly serious
and sincere. But these concerns surely cannot, without more,
support their position. The record in this case shows, without
much doubt, that the District Court clearly did not intend to
“punish” the Appellants for “failing to comply” with the court’s
orders. Cobell v. Norton, 334 F.3d 1128, 1147 (D.C. Cir. 2003)
(citation and internal quotation marks omitted). Nor was the
District Court principally concerned with vindicating its own
authority, see Int’l Union, United Mine Workers v. Bagwell, 512
U.S. 821, 828 (1994), when it held Appellants in contempt on
February 13, 2009; rather, the court was seeking to compel the
3
production of documents pursuant to its January 21, 2009 order.
Everything that the District Court did following the issuance of
its February 13, 2009 order confirmed this. Save for the civil
contempt citations, which obviously served to coerce the
production of the disputed documents, Appellants were never
sanctioned for the delayed production of documents.
Finally, as the opinion for the court notes, it is no answer
for Appellants to complain that the District Court left the
contempt citations standing for an unduly long period of time
after the Department of Justice complied with the court’s
January 21, 2009 order. Appellants could have acted to resolve
the situation by simply filing a motion with the District Court
seeking clarification on sanctions. Indeed, it seems ironic that
Appellants never sought clarification even as they seemingly felt
that the unresolved civil contempt citations further stigmatized
their professional reputations beyond the initial effects of the
strong words used by the District Court when the citations were
issued. Appellants may have had what they felt were good
reasons for avoiding further interactions with the District Court
during the pendency of the criminal trial. But the District Court
cannot be blamed for Appellants’ failure to seek clarification, if
this was a matter of serious concern to them. I do not take
Appellants’ concerns lightly, but I find no support for their
claim that the District Court’s delay in lifting the contempt
finding made them criminal contemnors in the eyes of the law.