In Re Sealed Case No.

99-3091 192 F.3d 995 (1999)

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Nature of the Case

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Facts

The New York Times published a front-page article captioned 'Starr is Weighing Whether to Indict Sitting President.' As is relevant 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 Office of the President (the White House) and Mr. Clinton jointly filed 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 2 of Federal Rule of Criminal Procedure 6(e). 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 whether 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. After an FBI investigation, it was discovered that Bakaly was the source of the story. The OIC took administrative 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 developments, 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 maintain that the information was not protected by Rule 6(e). 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). 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 sua sponte issued an order appointing DOJ to serve as prosecutor of the contempt charges against Bakaly and OIC. 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. DOJ stated its view that the district court lacked authority to proceed against OIC for criminal contempt because 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. An appeal was taken, and the appeals court issued an administrative stay of those proceedings.