UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: SEALED CASE


99-3091b

D.C. Cir. 1999


*	*	*


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 


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


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).




__________

n 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


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 




__________

n 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


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 




__________

n 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 




__________

n 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.


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 Busi- ness & Technical Inst., Inc., 173
F.3d 890, 894 (D.C. Cir.  1999) (supplemental opinion) (Eleventh
Amendment immuni- ty issue need not be decided before merits); accord
Parella  v. Retirement Bd. of the Rhode Island Employees' Retire- ment
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 sover- eign immunity 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 ("Ab- sent a waiver,
sovereign immunity shields the Federal Gov- ernment and its agencies
from suit.") (emphasis added);  Idaho v. Coeur d'Alene Tribe of Idaho,
521 U.S. 261, 267  (1997) ("The [Eleventh] Amendment ... enacts a
sovereign  immunity from suit, rather than a nonwaivable limit on the 
Federal Judiciary'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 pen- dent jurisdiction and
disposing of this case on the merits has  the added virtues of
avoiding a constitutional issue of first  impression, 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




__________

n 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 2, 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




__________

n 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 


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 testi- mony 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 proble- matic
nature of applying so broad a definition, especially as it  relates to
the 'strategy or direction of the investigation,' 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


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 nec- essary to differentiate
between statements by a prosecutor's  office with respect to its own
investigation, and statements by  a prosecutor's office with respect
to a grand jury's investiga- tion, 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 ... discussed 
federal 'investigations,' without actually discussing matters  before
the grand jury."); In re Grand Jury Subpoena, 920  F.2d 235, 242 (4th
Cir. 1990) ("[I]nformation produced by  criminal investigations
paralleling grand jury investigations  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


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 


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




__________

n 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


[a] discussion of actions taken by government attorneys  or
officials--e.g., a recommendation by the Justice De- partment
attorneys to department officials that an indict- ment 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


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 




__________

n 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-


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 




__________

n 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 "dis- closed" the name of a grand jury witness, in violation
of Rule  6(e), by referring to the President's grand jury




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n 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, 
government required to "come forward with evidence, in whatever  form
the district court requires (including affidavits, depositions, 
production 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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n ("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.").