Michael K. Deaver v. Whitney North Seymour, Jr., as Independent Counsel

D.H. GINSBURG, Circuit Judge,

concurring:

It is a “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 if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), quoted approvingly in Juluke v. Hodel, 811 F.2d 1553, 1557 (D.C.Cir.1987).1 *72The district court applied this rule in denying Michael Deaver’s request for a preliminary injunction preventing independent counsel Whitney North Seymour, Jr. from seeking an indictment from the grand jury. On appeal we must decide whether the district court abused its discretion in so holding. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975); Juluke v. Hodel, 811 F.2d at 1558.

As the court has explained, see at 66, 67-68, Deaver challenges the constitutionality of the independent counsel provisions of the Ethics in Government Act, 28 U.S.C. §§ 49, 591-98 (1982 & Supp. Ill 1985), and he claims that, if indicted, he would suffer the “continuing destruction of his business,” “injury to his reputation and dignity,” and “the expenditure of substantial resources in his defense.” It is clear that this type of harm does not rise to the level of “irreparable injury”:

Certain 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. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.

Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751-52 (citation omitted). It is of no moment that Deaver bases his challenge upon the alleged unconstitutionality of the office of independent counsel; injunctive relief is not granted

even if [the complained-of] statutes are unconstitutional. “No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.”

Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 966, 85 L.Ed. 1416 (1941), quoting Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420-21, 85 L.Ed. 577 (1941). See Younger v. Harris, 401 U.S. at 49, 91 S.Ct. at 753. The district court therefore did not abuse its discretion in denying injunctive relief here, because “the injury that [Deaver] faces is solely ‘that incidental to every criminal proceeding brought lawfully and in good faith.’ ”2

*73Younger v. Harris, 401 U.S. at 49, 91 S.Ct. at 753, quoting Douglas v. City of Jeannette, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943).3 Because I read the court’s decision to rest ultimately upon the same basis, see at 69, I concur.

. In Juluke, this court indicated that the federalism concerns underlying Younger in the context of a federal court asked to enjoin a state prosecution did not operate "in a situation involving civil and criminal proceedings in separate federal court actions.” 811 F.2d at 1556 (emphasis in *72original). At the same time, however, we reaffirmed the broad equitable principle announced in Younger and quoted in the text. Accordingly, after quoting this passage from Younger, the court in Juluke stated:

To the extent that [this equitable doctrine] suggests that the District Court judge in the civil case had discretion to defer action in the proceeding before him pending resolution of the criminal case, the principle is unexceptional____
The only conceivable reason not to consider the claim for injunctive relief in the civil case was that it would have been inefficient to do so, because the same issues — the validity and applicability of the regulations — would be decided in the criminal action. That, however, merely restates the traditional test for denying the consideration of equitable relief — that there is an adequate remedy available at law. We find this reason persuasive as to whether one court may enjoin an ongoing prosecution in another court.

Id. at 1557. The court then proceeded to determine whether the district court had abused its discretion in denying injunctive relief as against arrests for future conduct ("They never sought to enjoin the existing prosecutions." Id.), and relied upon the Younger line of cases for guidance as to when it is appropriate to grant equitable relief. I apply the Younger cases in order to determine whether injunctive relief against a single prosecution is appropriate, applying the same equitable principles as did the court in Juluke.

. Deaver claims that indictment will result in the "continuing destruction of his business," but this harm does not compare to that relied upon in Doran v. Salem Inn. In that case, the Court, on a “close" call, upheld the grant of injunctive relief to bars which were threatened with prosecution for employing topless dancers. It was undisputed that "absent preliminary relief, they would suffer a substantial loss of business and perhaps even bankruptcy” if forced to comply with the law. 422 U.S. at 932, 95 S.Ct. at 2568. Here, unlike in Doran, business interests would suffer only indirectly from indictment, as a result of the harm to Deaver’s reputation. Such harm is not only more conjectural than that in Doran, but is also intimately linked with the "discomfiture” of prosecution that must be borne "even by an innocent person.” Cobbled*73ick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940).

. Deaver contends that, due to the alleged constitutional infirmities in the office of independent counsel, any indictment here would not be "brought lawfully." A further reading of Douglas indicates that this phrase was meant to distinguish the situation in Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), in which a union sought injunctive relief barring the New Jersey police from continuing their practice of repeatedly removing from Jersey City union members engaged in leafletting and “compell[ing] them to board ferry boats destined for New York." Id. at 501, 59 S.Ct. at 958. In light of these facts, the Court stated that the "exclusion, removal, personal restraint and interference, by force and violence, are accomplished without authority of law and without promptly bringing the persons taken into custody before a judicial officer for hearing.” Id. at 505, 59 S.Ct. at 959. It was in this sense that the criminal proceedings in Hague were not "brought lawfully.”

In Deaver’s case, conversely, he has available to him the legal remedies provided in the criminal process — certainly post-indictment, as the court indicates, and perhaps even pre-indictment if the narrow circumstances contemplated in United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971) arise (“If ... [a] subpoena is unduly burdensome or otherwise unlawful, [the petitioner] may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him.”). In these circumstances, where the petitioner has not shown irreparable harm, a court of equity may not grant civil injunctive relief and thereby supplant the criminal process. See Juluke v. Hodel, 811 F.2d at 1557-58, and cases cited in n. 20.