No Easy Answers

Friday, December 29, 2006

Dow Jones Motion to Unseal - November 2, 2005

CADC Case No. 04-3138

One of the Motions of Dow Jones, to unseal the Opinion and Affidavits of the prosecutor in the cases In re: Grand Jury Subpoenas, Judith Miller et al, is a matter of public record.

       11/2/05   MOTION filed (5 copies) by Amicus Curiae Dow Jones & Co.,
                 Inc. in Nos. 04-3138, 04-3139, 04-3140 (certificate of mail
                 service date 11/2/05) to unseal [929790-1].

The text of the above-noted November 2, 2005 motion is reproduced below, as a hand transcription. It was followed, of course, by a Government Response & Resulting Court Opinion.

In contrast to the November 2, 2005 Motion being a "matter of public record," last year's Reply by movant Dow Jones, and the recent (December 20, 2006) Motion to Unseal ...

       12/6/05   REPLY filed [935817-1] (5 copies) by Amicus Curiae Dow
                 Jones Co Inc, et al. (certificate of service dated 12/6/05)
                 to a response to the motion unseal. [929790-1]

       12/20/06  MOTION filed (Captioned MOTION of AMICI CURAIE DOW JONES
                 and the AP to UNSEAL)(5 copies) by Amicus Curiae for
                 Appellant Dow Jones Co Inc in 04-3138, Amicus Curiae for
                 Appellant Assoc Press in 04-3138 (certificate of service
                 dated 12/20/06 ) [1012356-1]

... are themselves SEALED at the Circuit Court of Appeals, according to the document retrieval and copying service authorized by the United States Circuit Court of Appeals for the District of Columbia.

If that is had been in fact true, I find more than a hint of irony that a Motion to Unseal is itself sealed, where the movant is asking for relief on the grounds of making more information available to the public. The movants (Dow Jones and Associated Press), who could make the material public, aren't making the material public.

That suggests that Dow Jones' current (December 2006) motion contains information pertinent to subpoenas to Miller, Cooper and Time other than what is relevant in the Libby case, and the Court, in an exercise of prudent judgment, is unwilling to be used as a publication tool for Dow Jones.


The clerk of the court and the document retrieval service were in error. The December 20, 2006 Motion to Unseal is emphatically NOT filed under seal.

December 20, 2006 Motion to Unseal





On Appeal From The United States District Court
For the District Of Columbia


Theodore J. Boutrous, Jr.
Thomas H. Dupree, Jr.
1050 Connecticut Avenue N.W.
Washington, D.C 20036

Jack M. Weiss
200 Park Avenue, 47th Floor
New York, NY 10166-0193

Attorneys for Amicus Curiae


    Pursuant to Fed. R. App. P. 27 and D.C. Circuit Rules 27 and 47.1, amicus Dow Jones & Company, Inc. respectfully moves this Court to unseal the redacted portions of Judge Tatel's opinion in this case. See 397 F.3d 964, 1002; slip op. at 30-39 (attached as Exhibit A). 1


    This case arises from the disclosure of Valerie Plame's identity as a CIA operative. On February 15, 2005, a panel of this Court affirmed the district court's refusal to quash grand jury subpoenas issued to New York Times reporter Judith Miller, Time magazine reporter Matthew Cooper, and Time, Inc.

    In so holding, the panel split three ways as to whether the common law and Federal Rule of Evidence 501 recognized a reporter's confidential source privilege. The panel agreed, however, that "if [a common law] privilege applies here, it has been overcome" by the Special Counsel's ex parte evidentiary proffer that purportedly established the need for the reporters' testimony and documents. 397 F.3d at 973; slip op. at 17. The panel stated that on this point it was adopting the reasoning of Judge Tatel's concurring opinion, which devoted eight pages to

1 Dow Jones filed its corporate disclosure statement in its amicus brief submitted October 25, 2004.

explaining how the Special Counsel, with his "voluminous classified filings," had "met his burden of demonstrating that the information [sought from reporters] is both critical and unobtainable from any other source." 397 F.3d at 1002 (Tatel, J., concurring); slip op. at 30. Those pages, however, were redacted from the versions of the opinion made available to the reporters and the public on the basis that they contained nonpublic grand jury information protected from disclosure pursuant to Federal Rule of Criminal Procedure 6(e). 397 F.3d at 1002; slip op. at 30-39.

    On October 28, 2005, the grand jury indicted I. Lewis "Scooter" Libby, the then-Chief of Staff to the Vice President of the United States, on charges arising out of the Special Counsel's investigation. The indictment, attached hereto as Exhibit B, describes conversations Mr. Libby allegedly had with Ms, Miller and Mr. Cooper as forming the factual basis for certain charges. Shortly after the release of the indictment, the Special Counsel held a press conference in which he discussed the indictment and his investigation in more detail. A transcript of the press conference is attached hereto as Exhibit C.

    As shown below, this Court should now unseal the redacted pages of Judge Tatel's opinion in their entirety or, at a minimum, unseal those portions that are no longer protected under Rule 6(e) in light of the indictment, the Special Counsel's public statements, and the public statements of the witnesses themselves.



    Federal Rule of Criminal Procedure 6(e)(6) provides that orders relating to grand jury proceedings must be kept under seal only "to the extent and as long as necessary" to prevent the unauthorized disclosure of grand jury matters. See also D.C. Circuit Rule 47.1(c)("[a] party or any other interested person may move at any time to unseal any portion of the record in this court"); D.D.C. Local Rule 6.1 (district court may make public sealed documents concerning grand jury proceedings if the court determines "that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury").

    In In re: Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998), this Court held that although there is no First Amendment right of access to judicial records and proceedings ancillary to the grand jury, public disclosure of such materials is warranted if doing so will not endanger grand jury secrecy. Indeed, "Rule 6(e)(5) contemplates that this shall be done." 142 F. 3d at 502 (emphasis added). The Court explained that while "[i]t is true that Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs . . . it is also true that when information is sufficiently widely known . . . it has lost its character as Rule 6(e) material." Id. at 505 (internal quotations and citations omitted).

    Accordingly, this Court has directed that its opinions be unsealed when their content no longer qualifies as Rule 6(e) material. See, e.g., In re Lindsey, 158 F.3d


1263, 1265-66 (D.C.Cir. 1998)(ordering "that the redacted portions of this Court's opinion . . . are no longer protected from public disclosure by Rule 6(e)" and that "the entire opinion of this Court . . . shall be unsealed"); In re: Sealed Case, 162 F.3d 670, 671-72 (D.C.Cir. 1998)(unsealing opinion of the Court).

    Here, the grand jury's indictment and the Special Counsel's public statements strongly suggest that the redacted portions of Judge Tatel's opinion are no longer protected from public disclosure by Rule 6(e). Among other things, the indictment discloses conversations Mr. Libby allegedly had with Ms. Miller and Mr. Cooper. Exh B. at p6, ¶14; p7, ¶17; p8, ¶¶22-24. The indictment also discloses Mr. Libby's statements to the FBI concerning those conversations, id. at p9, ¶26; p17, ¶¶2-3, as well as his (and apparently the reporters') grand jury testimony about the conversations. Id. at pp11-14, ¶¶32-33; pp20-22, ¶¶2-3. Indeed, the indictment includes lengthy verbatim quotations from Mr. Libby's grand jury testimony concerning his conversation with Mr,. Cooper. Id. at p20, ¶2.

    More generally, the indictment discloses the nature and "major focus" of the grand jury's investigation, as well as the various matters that were material in the investigation, including "[w]hether and when LIBBY disclosed to members of the media that [Plame] was employed by the CIA." Id at pp9-10, ¶¶27-29.

    Similarly, in his press conference following issuance of the indictment, the Special Counsel disclosed that "Mr. Libby was the first official known to have told


a reporter when he talked to Judith Miller in June of 2003 about Valerie [Plame]." Exh. C at 1. See also id. at 3-5 (discussing Mr. Libby's conversations with Ms,. Miller and Mr. Cooper and stating that "It's important to focus on what it is that Mr. Libby said to the reporters"); id. at 10-11, 25 (discussing need for reporters' testimony). Indeed, the Special Counsel explicitly recognized that while "this grand jury investigation has been conducted in secret . . . [w]e are now going from a grand jury investigation to an indictment, a public charge and a public trial. The rules will be different." Id. at 5.

    It is also relevant that Ms. Miller and Mr. Cooper, and other witnesses who appeared before the grand jury or have otherwise testified -- including Tim Russert on NBC News and Walter Pincus of the Washington Post -- have publicly disclosed the substance of their testimony. See Judith Miller, My Four Hours Testifying in the Federal Grand Jury Room, N.Y.Times, Oct. 16, 2005, at A31; Matthew Cooper, What Scooter Libby and I talked About, Time, Nov. 7, 2005, at 42; NBC Nightly News Transcript, Tim Russert Shares His Involvement in CIA Leak Case, Oct. 28, 2005; Walter Pincus, Anonymous Sources: Their Use in a Time of Prosecutorial Interest, Nieman Reports 27 (Summer 2005)(all attached as Exhibit D).

    Due to the extensive public discussion of these facts, it appears that the redacted portions of Judge Tatel's opinion, or at minimum certain parts of them


have now "lost [their] character as Rule 6(e) material" and are no longer protected from disclosure. In re Motions of Dow Jones & Co., 142 F.3d at 505 (quotation omitted). The Dow Jones decision makes clear that where, as here, prosecutors and witnesses have made grand jury information widely known, continued secrecy is unwarranted. Moreover, if a motion to unseal is denied in whole or in part, a court must explain the specific basis for its decision to keep information secret. See 142 F.3d at 505 (when "we cannot tell from the explanation given in [the district court's] order" the basis of denying public access to court filings, "[o]ur only recourse . . . is to vacate the order insofar as it denied the motion for redacted versions of the transcript and other papers and remand the case for reconsideration").

    Finally, these proceedings involve a matter of great public importance that has already received considerable publicity. In Washington Post v. Robinson, 935 F.2d 282 (D.C.Cir. 1991), this Court emphasized "the critical importance of contemporaneous access . . . to the public's role as overseer of the criminal justice process." Id. at 287 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980)(Brennan, J., concurring)). Here, unsealing the redacted portions of Judge Tatel's opinion will enable the public to scrutinize the basis for this Court's ruling, and to understand why this Court concluded that any common law reporter's privilege was overcome.



    For the reasons set forth above, this Court should unseal the redacted portions of Judge Tatel's opinion in full or in part.

Dated: November 2, 2005

Respectfully Submitted,

Theodore J. Boutrous, Jr.
Thomas H. Dupree, Jr.
1050 Connecticut Avenue N.W.
Washington, D.C 20036

Jack M. Weiss
200 Park Avenue, 47th Floor
New York, NY 10166-0193

Attorneys for amicus curiae


Link to Government Response & Resulting Court Opinion


^_~ ~_^

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