In Re: Sealed Case

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided September 7, 1999

Redacted Version Issued September 13, 1999

In re: Sealed Case No. 99-3091

(Office of Independent Counsel Contempt Proceeding)

Consolidated with

99-3092

Appeal from the United States District Court

for the District of Columbia

(No. 99ms00038)

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ON A MOTION FOR SUMMARY REVERSAL OR STAY

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Kenneth W. Starr, Independent Counsel, Paul Rosenzweig,

Associate Independent Counsel, Donald T. Bucklin, and An-

drew W. Cohen, for appellant the United States.

James K. Robinson, Assistant Attorney General, Michael

E. Horowitz, Deputy Assistant Attorney General, and Lisa

Simotas, Attorney, for the Attorney General.

David E. Kendall, Nicole K. Seligman, Alicia L. Marti, for

William J. Clinton.

W. Neil Eggleston, Timothy K. Armstrong, for the Office

of the President.

Before: Wald, Silberman, and Henderson, Circuit Judges

Opinion for the Court filed Per Curiam.

PER CURIAM: The Office of Independent Counsel (OIC)

seeks summary reversal of the district court's order to show

cause why OIC should not be held in contempt for violating

the grand jury secrecy rule, and its order appointing the

United States Department of Justice as prosecutor of OIC in

a criminal contempt proceeding. In the alternative, OIC

seeks a stay of those orders pending appeal. We conclude we

have jurisdiction to consider the interlocutory appeal and

grant the motion for summary reversal.

I.

On January 31, 1999, while the Senate was trying President

William J. Clinton on articles of impeachment, the New York

Times published a front page article captioned "Starr is

Weighing Whether to Indict Sitting President." As is rele-

vant here, the article reported:

Inside the Independent Counsel's Office, a group of

prosecutors believes that not long after the Senate trial

concludes, Mr. Starr should ask the grand jury of 23 men

and women hearing the case against Mr. Clinton to indict

him on charges of perjury and obstruction of justice, the

associates said. The group wants to charge Mr. Clinton

with lying under oath in his Jones deposition in January

1998 and in his grand jury testimony in August, the

associates added.

The next day, the Office of the President (the White House)

and Mr. Clinton jointly filed in district court a motion for an

order to show cause why OIC, or the individuals therein,

should not be held in contempt for disclosing grand jury

material in violation of Federal Rule of Criminal Procedure

6(e).1 The White House and Mr. Clinton pointed to several

excerpts from the article as evidence of OIC's violations of

the grand jury secrecy rule.

OIC responded that the matters disclosed in the article

merely rehashed old news reports and, in any event, did not

fall within Rule 6(e)'s definition of "matters occurring before

the grand jury." OIC also submitted a declaration from

Charles G. Bakaly, III, then-Counselor to the Independent

Counsel, regarding his communications with the author of the

article, Don Van Natta, Jr. Bakaly declared, among other

things, that in his conversations with Van Natta about wheth-

er the Independent Counsel could indict the President while

still in office, "I refused to confirm or comment on what

Judge Starr or the OIC was thinking or doing." According to

OIC, the declaration was for the purpose of demonstrating

that even if the matters disclosed were grand jury material,

OIC was not the source of the information in the article.

Notwithstanding the foregoing, Independent Counsel Ken-

neth W. Starr asked the Federal Bureau of Investigation to

provide OIC assistance in conducting an internal leak investi-

gation. The Department of Justice authorized the FBI to do

so, and as a result of the investigation, [

]2 Consequently, OIC took ad-

ministrative action against Bakaly and referred the matter to

the Department of Justice for a criminal investigation and

decision. OIC informed the district court of these develop-

ments, withdrew Bakaly's declaration, and abandoned its

argument that OIC was not the source of the information

disclosed in the New York Times article. Although OIC

noted that "the article regrettably discloses sensitive and

confidential internal OIC information," it continued to main-

tain that the information was not protected by Rule 6(e).

__________

1 That rule provides in relevant part: "[A]n attorney for the

government ... shall not disclose matters occurring before the

grand jury, except as otherwise provided in these rules...."

2 Bold brackets signify sealed material.

Troubled by these developments, the district court ordered

Bakaly and OIC to show cause why they should not be held in

civil contempt for a violation of Rule 6(e), concluding that the

portion of the New York Times article quoted above revealed

grand jury material and constituted a prima facie violation of

Rule 6(e). [

] The district court scheduled a consolidated

show cause hearing, ordered the FBI and OIC to produce in

camera all their relevant investigative reports, and required

the FBI agents involved in the investigation to appear to

testify. In accordance with this court's holding in In re

Sealed Case No. 98-3077, 151 F.3d 1059, 1075-76 (D.C. Cir.

1998), the district court ordered that the proceedings be

closed and ex parte.

Convinced that the district court had misinterpreted this

court's precedent, OIC and Bakaly asked the district court to

certify for interlocutory appeal the question of the proper

scope of Rule 6(e). The district court denied the request,

referring only to its previous orders. In the meantime, DOJ

entered an appearance as counsel for the potential FBI

witnesses and sought a stay of the proceedings, including

Bakaly's requests for discovery, pending the completion of its

criminal investigation. The district court granted the stay,

and on July 13, DOJ notified the district court by letter that

it had completed its investigation. [

]

One day later, on July 14th, the district court sua sponte

issued an order appointing DOJ to serve as prosecutor of the

contempt charges against Bakaly and OIC. The district

court explained its unexpected inclusion of OIC in DOJ's

prosecution: "DOJ's letter only refers to the contempt

charges lodged against Mr. Bakaly. However, the Court also

needs to resolve the closely related allegations against the

OIC. The Court believes that these matters are best re-

solved through a single contempt proceeding involving both

Mr. Bakaly and the OIC." Although the district court decid-

ed to afford Bakaly and OIC the protections of criminal law,

it left open the possibility of civil, or a combination of civil and

criminal, contempt sanctions. The district court also sched-

uled a pre-trial status conference for July 23.

Both DOJ and OIC responded immediately. In another

letter to the court, DOJ asked the district court to withdraw

its referral of OIC for prosecution. DOJ explained that

based on its investigation, there was no factual basis for

proceeding with a criminal contempt prosecution against the

OIC in connection with the New York Times article. In

addition, DOJ stated its view that the district court lacked

authority to proceed against OIC for criminal contempt be-

cause Rule 6(e) only applies to individuals, OIC cannot be

held vicariously liable for acts of its staff, and OIC is entitled

to sovereign immunity.

OIC filed an emergency motion to vacate the district

court's July 14 order, objecting to being named as a criminal

defendant and to the entry of an order without affording the

parties an opportunity to respond to DOJ's first letter. OIC

also argued that there was no factual basis for the order, and

raised numerous legal objections, including the argument that

OIC is entitled to sovereign immunity from a criminal con-

tempt proceeding.

Faced with having to enter an appearance as a criminal

defendant at the status conference scheduled for July 23, and

not having obtained a ruling from the district court on the

emergency motion, on July 22, OIC noted an ex parte appeal

from the district court's March 25 and July 14 orders and

filed a motion for summary reversal or, in the alternative,

stay pending appeal.3 Because the criminal contempt pro-

ceedings were scheduled to commence immediately, we issued

__________

3 OIC also filed a petition for writ of mandamus in the event

this court does not have jurisdiction over the interlocutory appeal.

an administrative stay of those proceedings so that we would

have sufficient opportunity to consider the merits of the

motion. To obtain an adversarial viewpoint on what we

consider to be the dispositive issue in this case, we ordered

Mr. Clinton and the White House, along with DOJ and OIC,

to brief the question whether the alleged disclosures in the

New York Times article relied upon by the district court in

ordering a criminal contempt proceeding constitute a prima

facie violation of Rule 6(e).

II.

Before reaching that issue, we explain the basis of our

jurisdiction over this interlocutory appeal. OIC claims that

as a federal agency it is immune from criminal contempt

charges. It is well established that "[t]he United States, as

sovereign, is immune from suit save as it consents to be sued

..., and the terms of its consent to be sued in any court

define that court's jurisdiction to entertain the suit." United

States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omit-

ted). Based on its claim of sovereign immunity, OIC con-

tends that the district court's ruling is immediately appeal-

able as a collateral order. We agree.

In order to qualify as a collateral order, the challenged

order must "conclusively determine the disputed question,

resolve an important issue completely separate from the

merits of the action, and be effectively unreviewable on

appeal from a final judgment." Coopers & Lybrand v. Live-

say, 437 U.S. 463, 468 (1978). Here, the district court failed

to respond to OIC's motion to vacate and allowed to stand its

order requiring OIC to appear as a criminal defendant at a

status conference. Given these circumstances, we understand

the district court to have conclusively rejected OIC's claim of

immunity. That determination resolves an important issue

separate from the merits of the contempt charge.

As to the remaining factor, federal sovereign immunity is

an immunity from suit, not simply a defense to liability on the

merits. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Con-

sequently, the right to be free from the burdens of trial is

effectively unreviewable on appeal from a final judgment.

See, e.g., Midland Asphalt Corp. v. United States, 489 U.S.

794, 800-01 (1989) ("[D]eprivation of the right not to be tried

satisfies the ... requirement of being 'effectively unreview-

able on appeal from a final judgment.' "). Although the

Seventh Circuit has concluded in a civil case that the federal

government, as opposed to a state or foreign sovereign, does

not have a right to an interlocutory appeal based on a claim of

sovereign immunity, see Pullman Constr. Indus., Inc. v.

United States, 23 F.3d 1166, 1169 (7th Cir. 1994); see also

Alaska v. United States, 64 F.3d 1352, 1355-57 (9th Cir. 1995)

(following Pullman), the Seventh Circuit based its decision in

large part on the premise that the Administrative Procedure

Act (APA), 5 U.S.C. s 702, waives federal sovereign immunity

for equitable relief.4 As discussed below, it is far from clear

that Congress has waived federal sovereign immunity in the

context of criminal contempt. We think that OIC's substan-

tial claim of immunity from the proceedings ordered by the

district court suffices to entitle OIC to an interlocutory

appeal.

III.

In deciding that the federal government was not entitled to

an interlocutory appeal based on sovereign immunity, the

Seventh Circuit broadly stated: "Now that 5 U.S.C. s 702

exposes the United States to equitable relief,5 it is difficult to

__________

4 That section of the APA provides in relevant part:

A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review

thereof. An action in a court of the United States seeking

relief other than money damages and stating a claim that an

agency or an officer or employee thereof acted ... in an official

capacity or under color of legal authority shall not be dismissed

nor relief therein be denied on the ground that it is against the

United States or that the United States is an indispensable

party.

5 But cf. Department of the Army v. Blue Fox, Inc., 119 S.Ct.

687, 691 (1999) (Section 702 makes distinction between specific relief

speak of federal sovereign immunity as a 'right not to be

sued.' " Pullman, 23 F.3d at 1168. It concluded that "[f]ed-

eral sovereign immunity today is nothing but a condensed

way to refer to the fact that monetary relief is permissible

only to the extent Congress has authorized it.... " Id. The

Ninth Circuit agreed that "federal sovereign immunity [is]

more accurately considered a right to prevail at trial, i.e., a

defense to payment of damages." Alaska, 64 F.3d at 1355

(emphasis in original).6

We rather doubt that federal sovereign immunity is so

limited, especially in the unique circumstances presented

here. "A waiver of the Federal Government's sovereign im-

munity must be unequivocally expressed in [the] statutory

text." Lane v. Pena, 518 U.S. 187, 192 (1996). We know of

no statutory provision expressly waiving federal sovereign

immunity from criminal contempt proceedings.

We need not decide this issue of first impression, howev-

er, because there is another ground upon which we can

dispose of this case that does not raise constitutional con-

cerns.7 As we recently concluded, although a federal court

__________

and substitute relief, not equitable and nonequitable categories of

remedies).

6 There are cases suggesting otherwise. In the civil context,

the Fifth Circuit has held that the United States is immune from

suit under Rule 6(e), see McQueen v. Bullock, 907 F.2d 1544 (5th

Cir.1990), and the Eighth Circuit has held that the United States

has not waived sovereign immunity for civil contempt under 18

U.S.C. s 401, which gives the court power to punish contempt by

fine or imprisonment, see Coleman v. Espy, 986 F.2d 1184 (8th

Cir.1993). Neither of these cases, however, takes into account the

waiver of immunity in 5 U.S.C. s 702. Cf. Armstrong v. Executive

Office of the President, 821 F.Supp. 761 (D.D.C) (discussing waiver

in 5 U.S.C. s 702, holding United States in civil contempt of court,

and imposing coercive fines), rev'd on other grounds, 1 F.3d 1274

(D.C. Cir. 1993).

7 We assume federal sovereign immunity "is derived from

article III, section 2, of the Constitution," Bartlett ex rel. Neuman

v. Bowen, 824 F.2d 1240, 1248 (D.C. Cir.1987) (joint statement

generally must determine whether it has jurisdiction over a

case before reaching its merits, see Steel Co. v. Citizens for

a Better Env't, 118 S.Ct. 1003, 1012 (1998), "a less than pure

jurisdictional question, need not be decided before a merits

question." United States ex rel. Long v. SCS Business &

Technical Inst., Inc., 173 F.3d 890, 894 (D.C. Cir. 1999)

(supplemental opinion) (Eleventh Amendment immunity is-

sue need not be decided before merits); accord Parella v.

Retirement Bd. of the Rhode Island Employees' Retirement

Sys., 173 F.3d 46 (1st Cir. 1999); but see United States ex

rel. Foulds v. Texas Tech Univ., 171 F.3d 279 (5th Cir.

1999); Seaborn v. Florida Dep't of Corrections, 143 F.3d

1405 (1st Cir. 1998), cert. denied, 119 S.Ct. 1038 (1999).

Federal sovereign immunity, like the state sovereign immu-

nity at issue in Long, differs from the classic "jurisdictional"

limitations of Article III in that immunity can be waived.

See FDIC v. Meyer, 510 U.S. at 475 ("Absent a waiver,

sovereign immunity shields the Federal Government and its

agencies from suit.") (emphasis added); Idaho v. Coeur d'Al-

ene Tribe of Idaho, 521 U.S. 261, 267 (1997) ("The [Elev-

enth] Amendment ... enacts a sovereign immunity from

suit, rather than a nonwaivable limit on the Federal Judicia-

ry's subject-matter jurisdiction."). Given the "quasi-

jurisdictional or 'hybrid' status," Long, 173 F.3d at 893, of

federal sovereign immunity, we are not required to decide

that issue before the merits. Moreover, taking pendent

jurisdiction and disposing of this case on the merits has the

added virtues of avoiding a constitutional issue of first im-

pression, see Rendall-Speranza v. Nassim, 107 F.3d 913

(D.C. Cir. 1997) (allowing interlocutory appeal based on for-

eign sovereign immunity claim, but declining to decide im-

munity issue, which was both difficult and implicated foreign

relations), while providing much needed clarification on an

important issue--that is, the proper scope of Rule 6(e)--that

__________

dissenting from the vacatur of orders and from the denials of

rehearing en banc), although there is some debate over whether it

is a constitutional doctrine and, if so, its source in the Constitution,

see Scott C. Idleman, The Demise of Hypothetical Jurisdiction in

the Federal Courts, 52 Vand. L. Rev. 235, 349 n.354 (1999).

has arisen in this court on several occasions, and is likely to

recur.

IV.

Turning, then, to the merits of this case, we conclude that

the disclosures made in the New York Times article do not

constitute a prima facie violation of Rule 6(e). A prima facie

violation based on a news report is established by showing

that the report discloses "matters occurring before the grand

jury" and indicates that sources of the information include

government attorneys. See Barry v. United States, 865 F.2d

1317, 1321 (D.C. Cir. 1989). Because OIC has withdrawn its

argument that none of its attorneys was the source of the

disclosures in the New York Times article at issue here, the

only remaining issue is whether those disclosures qualify as

"matters occurring before the grand jury." Fed. R. Crim. P.

6(e)(2).8

The district court concluded that only one excerpt from the

New York Times article constituted a prima facie violation of

Rule 6(e). That excerpt, quoted in full supra at __, disclosed

the desire of some OIC prosecutors to seek, not long after the

conclusion of the Senate trial, an indictment of Mr. Clinton on

perjury and obstruction of justice charges, including lying

under oath in his deposition in the Paula Jones matter and in

his grand jury testimony. These statements, according to the

district court, reveal a specific time frame for seeking an

indictment, the details of a likely indictment, and the direction

a group of prosecutors within OIC believes the grand jury

investigation should take. Not surprisingly, Mr. Clinton and

the White House agree with the district court's expansive

reading of Rule 6(e). OIC takes a narrow view of the Rule's

coverage, arguing that matters occurring outside the physical

presence of the grand jury are covered only if they reveal

grand jury matters. DOJ generally supports OIC with re-

__________

8 OIC contends that as an entity rather than an individual, it is

not subject to Rule 6(e). It is unnecessary to decide this issue

given our conclusion that there is no prima facie violation of Rule

6(e).

spect to the Rule's coverage, but emphasizes the importance

of the context and concreteness of disclosures.

The key to the district court's reasoning is its reliance on

this court's definition of "matters occurring before the grand

jury." In In re Motions of Dow Jones & Co., 142 F.3d 496,

500 (D.C. Cir. ), cert. denied, 119 S.Ct. 60 (1998), we noted

that this phrase encompasses "not only what has occurred

and what is occurring, but also what is likely to occur,"

including "the identities of witnesses or jurors, the substance

of testimony as well as actual transcripts, the strategy or

direction of the investigation, the deliberations or questions of

jurors, and the like." Id. (internal quotation omitted). In the

earlier contempt proceeding against Independent Counsel

Starr, however, we cautioned the district court about "the

problematic nature of applying so broad a definition, especial-

ly as it relates to the 'strategy or direction of the investiga-

tion,' to the inquiry as to whether a government attorney has

made unauthorized disclosures." In re Sealed Case No. 98-

3077, 151 F.3d at 1071 n.12. Despite the seemingly broad

nature of the statements in Dow Jones, we have never read

Rule 6(e) to require that a "veil of secrecy be drawn over all

matters occurring in the world that happen to be investigated

by a grand jury." Securities & Exch. Comm'n v. Dresser

Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc).

Indeed, we have said that "[t]he disclosure of information

'coincidentally before the grand jury [which can] be revealed

in such a manner that its revelation would not elucidate the

inner workings of the grand jury' is not prohibited." Senate

of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574,

582 (D.C. Cir. 1987)(quoting Fund for Constitutional Gov't v.

National Archives and Records Serv., 656 F.2d 856, 870 (D.C.

Cir. 1981)). Thus, the phrases "likely to occur" and "strategy

and direction" must be read in light of the text of Rule 6(e)--

which limits the Rule's coverage to "matters occurring before

the grand jury"--as well as the purposes of the Rule.

As we have recited on many occasions,

Rule 6(e) ... protects several interests of the criminal

justice system: "First, if preindictment proceedings were

made public, many prospective witnesses would be hesi-

tant to come forward voluntarily, knowing that those

against whom they testify would be aware of that testi-

mony. Moreover, witnesses who appeared before the

grand jury would be less likely to testify fully and

frankly, as they would be open to retribution as well as

to inducements. There also would be the risk that those

about to be indicted would flee, or would try to influence

individual grand jurors to vote against indictment. Fi-

nally, by preserving the secrecy of the proceedings, we

assure that persons who are accused but exonerated by

the grand jury will not be held up to public ridicule."

In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C.

Cir.1998)(quoting Douglas Oil Co. v. Petrol Stops Northwest,

441 U.S. 211, 219 (1979)); see also Fund for Constitutional

Gov't, 656 F.2d at 869 (same). These purposes, as well as the

text of the Rule itself, reflect the need to preserve the secrecy

of the grand jury proceedings themselves. It is therefore

necessary to differentiate between statements by a prosecu-

tor's office with respect to its own investigation, and state-

ments by a prosecutor's office with respect to a grand jury's

investigation, a distinction of the utmost significance upon

which several circuits have already remarked. See, e.g.,

United States v. Rioux, 97 F.3d 648, 662 (2d Cir.1996)("Most

of the media surrounding the Rioux investigation ... dis-

cussed federal 'investigations,' without actually discussing

matters before the grand jury."); In re Grand Jury Subpoe-

na, 920 F.2d 235, 242 (4th Cir.1990) ("[I]nformation produced

by criminal investigations paralleling grand jury investiga-

tions does not constitute matters 'occurring before the grand

jury' if the parallel investigation was truly independent of the

grand jury proceedings."); Blalock v. United States, 844 F.2d

1546, 1551 (11th Cir.1988) ("[T]he agents could not have

violated Rule 6(e)(2) merely by allowing the Georgia Power

investigators to be present during the questioning of poten-

tial grand jury witnesses.... To have violated Rule 6(e)(2)

... the agents must have disclosed to the Georgia Power

investigators information revealing what had transpired, or

will transpire, before the grand jury.") (emphasis added); In

re Grand Jury Investigation ["Lance"], 610 F.2d 202, 217

(5th Cir.1980) ("[T]he disclosure of information obtained from

a source independent of the grand jury proceedings, such as a

prior government investigation, does not violate Rule 6(e).").

Information actually presented to the grand jury is core

Rule 6(e) material that is afforded the broadest protection

from disclosure. Prosecutors' statements about their investi-

gations, however, implicate the Rule only when they directly

reveal grand jury matters. To be sure, we have recognized

that Rule 6(e) would be easily evaded if a prosecutor could

with impunity discuss with the press testimony about to be

presented to a grand jury, so long as it had not yet occurred.

Accordingly, we have read Rule 6(e) to cover matters "likely

to occur." And even a discussion of "strategy and direction

of the investigation" could include references to not yet

delivered but clearly anticipated testimony. See Lance, 610

F.2d at 216-17 and n.4. But that does not mean that any

discussion of an investigation is violative of Rule 6(e). In-

deed, the district court's Local Rule 308(b)(2), which governs

attorney conduct in grand jury matters, recognizes that pros-

ecutors often have a legitimate interest in revealing aspects of

their investigations "to inform the public that the investiga-

tion is underway, to describe the general scope of the investi-

gation, to obtain assistance in the apprehension of a suspect,

to warn the public of any dangers, or otherwise aid in the

investigation."

It may often be the case, however, that disclosures by the

prosecution referencing its own investigation should not be

made for tactical reasons, or are in fact prohibited by other

Rules or ethical guidelines. For instance, prosecutors may be

prohibited by internal guidelines, see, e.g., United States

Attorney Manual s 1-7.530, from discussing the strategy or

direction of their investigation before an indictment is

sought.9 This would serve one of the same purposes as Rule

__________

9 But see Eric H. Holder and Kevin A. Ohlson, Dealing with

the Media in High-Profile White Collar Cases: The Prosecutor's

Dilemma, in White Collar Crime, at B-1, B-1 to B-2 (1995) ("[I]n

cases involving well-known people, the public has a right to be kept

6(e): protecting the reputation of innocent suspects. But a

court may not use Rule 6(e) to generally regulate prosecutori-

al statements to the press. The purpose of the Rule is only

to protect the secrecy of grand jury proceedings.

Thus, internal deliberations of prosecutors that do not

directly reveal grand jury proceedings are not Rule 6(e)

material. As the Fifth Circuit stated in circumstances similar

to those presented here,

[a] discussion of actions taken by government attor-

neys or officials--e.g., a recommendation by the Justice

Department attorneys to department officials that an

indictment be sought against an individual--does not

reveal any information about matters occurring before

the grand jury. Nor does a statement of opinion as to an

individual's potential criminal liability violate the dictates

of Rule 6(e). This is so even though the opinion might be

based on knowledge of the grand jury proceedings, pro-

vided, of course, the statement does not reveal the grand

jury information on which it is based.

Lance, 610 F.2d at 217; accord United States v. Smith, 787

F.2d 111, 115 (3d Cir. 1986)("We agree with the Fifth Circuit

that a statement of opinion by a Justice Department attorney

as to an individual's potential criminal liability does not

violate the dictates of Rule 6(e)...."). It may be thought

that when such deliberations include a discussion of whether

an indictment should be sought, or whether a particular

individual is potentially criminally liable, the deliberations

have crossed into the realm of Rule 6(e) material. This

ignores, however, the requirement that the matter occur

__________

reasonably informed about what steps are being taken to pursue

allegations of wrongdoing so that they can determine whether

prosecutors are applying the law equally to all citizens. This point

has become particularly pertinent in recent years because powerful

figures increasingly seem to characterize criminal investigations of

their alleged illegal conduct as 'political witch hunts.' This type of

epithet only serves to unfairly impugn the motives of prosecutors

and to undermine our legal system, and should not go unan-

swered.").

before the grand jury. Where the reported deliberations do

not reveal that an indictment has been sought or will be

sought, ordinarily they will not reveal anything definite

enough to come within the scope of Rule 6(e).

For these reasons, the disclosure that a group of OIC

prosecutors "believe" that an indictment should be brought at

the end of the impeachment proceedings does not on its face,

or in the context of the article as a whole, violate Rule 6(e).10

We acknowledge, as did OIC, that such statements are trou-

bling, for they have the potential to damage the reputation of

innocent suspects. But bare statements that some assistant

prosecutors in OIC wish to seek an indictment do not impli-

cate the grand jury; the prosecutors may not even be basing

their opinion on information presented to a grand jury.

The fact that the disclosure also reveals a time period for

seeking the indictment of "not long after the Senate trial

concludes" does not in any way indicate what is "likely to

occur" before the grand jury within the meaning of Rule 6(e).

That disclosure reflects nothing more than a desire on the

part of some OIC prosecutors to seek an indictment at that

time, not a decision to do so. The general uncertainty as to

whether an indictment would in fact be sought (according to

the article, only some prosecutors in OIC thought one should

be) leads us to conclude that this portion of the article did not

reveal anything that was "occurring before the grand jury."

Nor does it violate the Rule to state the general grounds

for such an indictment--here, lying under oath in a deposition

and before the grand jury--where no secret grand jury

material is revealed. In ordinary circumstances, Rule 6(e)

covers the disclosure of the names of grand jury witnesses.

Therefore, the statement that members of OIC wished to

seek an indictment based on Mr. Clinton's alleged perjury

before a grand jury would ordinarily be Rule 6(e) material.

In this case, however, we take judicial notice that the Presi-

dent's status as a witness before the grand jury was a matter

__________

10 Indeed, the article stated that Independent Counsel Starr

had not himself made any decision on whether to bring an indict-

ment.

of widespread public knowledge well before the New York

Times article at issue in this case was written; the President

himself went on national television the day of his testimony to

reveal this fact. Cf. Dow Jones, 142 F.3d at 505 ("Carter's

identity as a person subpoenaed to appear before the grand

jury has [lost its character as 6(e) material] ... because

Carter's attorney decided to reveal this fact to the public.").

Where the general public is already aware of the information

contained in the prosecutor's statement, there is no additional

harm in the prosecutor referring to such information.11 See

In Re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994) ("There

must come a time ... when information is sufficiently widely

known that it has lost its character as Rule 6(e) material.

The purpose in Rule 6(e) is to preserve secrecy. Information

widely known is not secret."); see also In re Petition of Craig

v. United States, 131 F.3d 99, 107 (2d Cir. 1997) ("[T]he

extent to which the grand jury material in a particular case

has been made public is clearly relevant because even partial

previous disclosure often undercuts many of the reasons for

secrecy.").12 Therefore, it cannot be said that OIC "disclosed"

the name of a grand jury witness, in violation of Rule 6(e), by

referring to the President's grand jury testimony.13

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11 The prosecutor must still be careful, of course, when making

such statements not to reveal some aspect of the grand jury

investigation which is itself still cloaked in secrecy.

12 We agree with DOJ that consideration of whether material

presumptively within the scope of Rule 6(e) has lost its secrecy

should be considered at the prima facie stage. Here, the question

is easily answered by reference to matters of which the court may

take judicial notice, therefore there is no need for OIC to be put to

the burden and distraction of an evidentiary hearing to rebut the

allegations of a Rule 6(e) violation. See In re Sealed Case No. 98-

3077, 151 F.3d at 1075 (once prima facie case established, govern-

ment required to "come forward with evidence, in whatever form

the district court requires (including affidavits, depositions, produc-

tion of documents, or live testimony)").

13 Of course, a prosecutor is not free to leak grand jury

material and then make a self serving claim that the matter is no

longer secret. Cf. In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)

Similarly, it would ordinarily be a violation of Rule 6(e) to

disclose that a grand jury is investigating a particular person.

Thus, the statement that a grand jury is "hearing the case

against Mr. Clinton" would be covered by Rule 6(e) if it were

not for the fact that the New York Times article did not

reveal any secret, for it was already common knowledge well

before January 31, 1999, that a grand jury was investigating

alleged perjury and obstruction of justice by the President.

Once again, the President's appearance on national television

confirmed as much.

V.

In light of our conclusion that the excerpt from the New

York Times article does not constitute a prima facie violation

of Rule 6(e), we reverse and remand with instructions to

dismiss the Rule 6(e) contempt proceedings against OIC.

Because we have granted OIC's request for summary rever-

sal, we dismiss as moot the alternative request for a stay, as

well as the consolidated petition for mandamus. The admin-

istrative stay is lifted.

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("We do not intend to formulate a rule that once a leak of Rule 6(e)

material has occurred, government attorneys are free to ignore the

pre-existing bond of secrecy.").