259 F.3d 725 (D.C. Cir. 2001)
In re:  Alphonso Michael (Mike) Espy
Division No. 94-2
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 14, 2001

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[Copyrighted Material Omitted]


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Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended


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Before:  Sentelle, Presiding, Fay and Cudahy, Senior  Circuit Judges.


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Opinion for the Court filed by Presiding Judge Sentelle.


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Concurring opinion filed by Senior Circuit Judge Cudahy.


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Motion for the Public Release of Final Report

O R D E R

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It is ORDERED, ADJUDGED and DECREED that the  Motion of the Independent Counsel to release the final report  is granted.


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The effects of this order to release shall be stayed for ten  days or until such time as the Supreme Court shall act upon  an application for stay, whichever shall last occur.  The  purpose of this decretal paragraph is to permit any party  desiring to do so to seek a stay from the Supreme Court.  If  no such stay is sought within the period granted by this  paragraph, then this stay shall be lifted.  To achieve these ends, it is ordered that counsel for any party seeking a stay  from the Supreme Court shall notify the Clerk of the United  States Court of Appeals for the District of Columbia Circuit  of that fact upon the filing of application for such stay, and  shall further notify the Clerk promptly upon learning of the  disposition of such application.

Sentelle, Presiding Judge:

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This matter comes before us  on the Motion of the Independent Counsel ("IC") appointed  by the Court for the investigation of matters relating to  former Secretary of Agriculture Alphonso Michael Espy to  authorize public release of the final report of his investigation. The IC has prepared the report pursuant to 28 U.S.C.              594(h) which requires that "[a]n independent counsel shall  ... (B) before the termination of the independent counsel's  office under section 596(b), file a final report with the division  of the court, setting forth fully and completely a description  of the work of the independent counsel, including the disposition of all cases brought." He addresses his motion to the Court pursuant to              594(h)(2) which authorizes the Court to "release to the  Congress, the public, or any appropriate person, such portions of the report made under this subsection as the division  of the court considers appropriate."


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As we have noted before, the reporting requirement is a  unique feature of the now-lapsed statute creating the unique  office of independent counsel.  See In re North, 16 F.3d 1234,  1239 (D.C. Cir., Spec. Div. 1994) (per curiam) (noting that "no  precedent ... clearly guides our hand" in dealing with questions arising from the reporting requirement).  The issuance  of a document issued by a prosecutor, not of itself under the  aegis of either the court or the grand jury, yet potentially  harmful to the reputation of persons investigated is certainly  troubling, and we have found it troubling in our prior proceedings under this statute.  See generally id. at 16 F.3d  1234.  Especially is this so given that such a report often, as  in this case, contains grand jury material governed by the  confidentiality provisions of Fed. R. Crim. P. 6(e).

Rule 6(e) Problems

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Rule 6(e) declares that "an attorney for the government  ... shall not disclose matters occurring before the Grand  Jury, except as otherwise provided for in these rules."  Fed.  R. Crim. P. 6(e)(2).  The independent counsel is an attorney  for the government and his release of grand jury material is  covered by Rule 6(e).  In re North, 16 F.3d at 1242.  Thus,  insofar as the report carries with it grand jury material, that  material may not be released to the public "except as otherwise provided for in" the Federal Rules of Criminal Procedure.  In the past, we have found the relevant authority in  Fed. R. Crim. P. 6(e)(3)(C):  "Disclosure otherwise prohibited  by this rule of matters occurring before the grand jury may  also be made--(i) when so directed by a court preliminary to  or in connection with a judicial proceeding."  That exception  to the grand jury secrecy rule empowers courts to authorize  release of otherwise secret material governed by Rule 6(e), in  judicial proceedings.  We have held that the Court's function  in the release of reports is a judicial proceeding, In re North,  16 F.3d at 1244.  Therefore, this exception does apply to  permit the release of material otherwise covered by the rule if  we find such release to be otherwise lawful and appropriate.


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The second difficulty which we have confronted in the past  is the assertion that only the court which empanels a grand  jury has jurisdiction over the release of grand jury material. We have, however, authoritatively rejected that proposition,  holding that 28 U.S.C.             594(h)(2), which empowers this  Special Division to " 'make such orders as are appropriate to  protect the rights of any individual named in such (independent counsel's) report ...,' " taken in the context, confers  upon this Court the necessary jurisdiction, regardless of  whether that jurisdiction would otherwise be exclusive with  the empaneling court.  In re Sealed Motion, 880 F.2d 1367,  1374-75 (D.C. Cir., Spec. Div. 1989) (per curiam) (quoting 28  U.S.C.             594(h)(2)).  Indeed, in Morrison v. Olson, the Supreme Court "compared the 'functions that the Special Division is empowered to perform ... to functions that federal  judges perform in other contexts, such as deciding whether to  allow disclosure of matters occurring before the grand jury.' " Id. at 1374 (quoting Morrison v. Olson, 487 U.S. 654, 681  (1988) (emphasis and ellipses supplied in In re Sealed Motion.)  While the Supreme Court's language is obviously not a  holding, this strong dicta provided support for our holding in  In re Sealed Motion that the Division does possess the  necessary jurisdiction to make the Rule 6(e)(C) disclosure  determination.


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We therefore remain satisfied that we have jurisdiction to  enter the order prayed by the Independent Counsel.

Propriety of Disclosure

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In determining whether or not to order the disclosure of  independent counsel reports, and specifically of grand jury  materials contained therein, we adopted in In re North an  analysis weighing four not necessarily exclusive factors:


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[1] whether the subjects of the investigations have already been disclosed to the public;


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[2] whether the subjects do not object to the filings being released to the public;


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[3] whether the filings contain information which is already publicly known;  and


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[4] whether the court filings consist of legal or factual rulings in a case which should be publicly available to understand the court's rules and precedents or to follow the developments in a particular matter.


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16 F.3d at 1237 (quoting Sen. Rep. No. 123, 100th Cong., 1st  Sess. 21 (1987), reprinted in 1987 U.S.C.C.A.N. 2150, 2170). We apply those four parts today.


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We first ask "whether the subjects of the investigations  have already been disclosed to the public."  The subjects of  the investigation have already been officially disclosed in the  course of criminal trials.  Therefore this factor weighs in  favor of disclosure.


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We second ask "whether the subjects do not object to the  filings being released to the public."  We have provided the  same opportunity in this case for comment that we provided  in In re North and in numerous other independent counsel  investigations.  While we have received numerous comments,  only one comment, filed on behalf of three related individuals,  addresses the question of disclosure.  As in In re North "the  vast majority of the persons named in the Report have not  expressed an opinion one way or the other."  In In re North,  we determined that "counting noses does not decide the  question."  Id. at 1240.  Here, as in In re North, "[e]ven if  only one person objected, and fairness compellingly directed  withholding for his sake, we could withhold the Report...." Id.  In the prior case we found that on balance "this factor  [weighed] against release, but only slightly."  Id.  In the  matter before us, we have examined the single objection. While we find it not at all frivolous, we further note that the  comment itself, while opposing publication, further requests  that "at a minimum ... this letter be appended to the  report."  The report as contemplated will include the filing of  that letter.  On balance, we conclude that this factor weighs  in favor of release, though only slightly.


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The third factor, "whether the filings contain information  which is already publicly known," weighs most strongly in favor of release.  In In re North we noted that "[n]ot only is  the information widely known, it is widely known incorrectly." Id.  We therefore concluded that a more complete version of  the information coupled with the opportunity for comment by  the persons named created a strong impetus for release.  The  same is true in the matter before us.  As the one objecting  comment notes, "most of the story" about which the commenter is concerned "was disclosed in a public forum, Secretary  Espy's trial."  While the commenter goes on to note that the  report of the Independent Counsel arguably misleads the  reader about certain facts of the "story," the commenter's  own document which is to be filed with the report rebuts or at  least responds to the Independent Counsel's version. Therefore, we conclude that the public interest in full disclosure of  that which has been partially or misleadingly disclosed already weighs in favor of the granting of publication.


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The fourth factor "whether the court filings consist of legal  or factual rulings in a case which should be publicly available  to understand the court's rules and precedents or to follow  the developments in a particular matter"--as in In re North  is not of great weight on either side of the scale.  By no  means does the report consist entirely or even marginally of  such rulings.  If this factor weighs at all, it therefore weighs  against disclosure, but it does not weigh very much.  As in In  re North, "[i]f our answer had been 'yes,' that might be a  factor tipping towards release.  Where the answer is 'no,' it  affects the balance little one way or the other."  Id. at 1241.


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We therefore conclude as we did in In re North that the  motion for publication of the Independent Counsel's report,  inclusive of an appendix containing all comments filed by  persons named in the report, is granted.  As in the prior case  we are filing contemporaneously herewith an order staying  publication for a period of ten days so that any party affected  by this order may if any such party so wishes seek a further  stay from the Supreme Court.


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So ordered.


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Cudahy, Senior Circuit Judge, concurring.


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I concur fully in Judge Sentelle's opinion for the majority. I write separately only to offer a further comment on the  difficult balance between fairness to the persons investigated  and the public interest in full disclosure, which is touched  upon by Judge Sentelle here and was explored more fully in  the leading precedent, In re:  North, 16 F.3d 1234 (D.C. Cir.  1994).  As the majority notes here, "The issuance of a document issued by a prosecutor, not of itself under the aegis of  either the court or the grand jury, yet potentially harmful to  the reputation of persons investigated is certainly troubling,  and we have found it troubling in our prior proceedings under  this statute."  Ante, at 728.


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This investigation was perhaps unique in the annals of the  independent counsels in that its principal subject, Secretary  of Agriculture Michael Espy, was indicted on 39 counts by a  grand jury and acquitted on all counts by a trial jury after a  two-month trial.  It is certainly not my role to comment on  those unique circumstances, although I will suggest that the  final report does little to explain why matters turned out as  they did.


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I perhaps bring an unusual perspective to the matters  covered by this final report, since I presided for a number of  years over a firm intensively regulated by the United States  Department of Agriculture under the Meat Inspection Act. So I fully understand the sensitivity of relations between such  firms and their managements and agents and officials of the  Department of Agriculture.  This report at several points, in  attempting to establish the importance of this investigation,  cites Upton Sinclair's classic, The Jungle, whose purpose was  to expose labor conditions in the meatpacking industry but  which led instead to the passage of the Meat Inspection Act  in 1907.


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The report, which with appendices is more than 400 pages  long, also includes a defense of the independent counsel  procedure against charges of excessive delay and cost and of  having a distorted focus.  This is a bit of special pleading,  which is likely to be viewed skeptically.  But it is fair comment.  The report also predictably deplores the injection  of politics into appraisals of an independent counsel's work,  though--considering that the subjects of theses investigations  are at the highest levels of political power--one could hardly  expect things to be sanitized against politics.


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Trying to strike some kind of appropriate balance between  fairness to those investigated--whether convicted or acquitted--or even indicted--and the public interest in disclosure of  how things looked to the prosecutor at various stages of the  investigations and the prosecutions may be almost impossible. But in the last analysis, in this as in many similar situations,  public disclosure, with whatever safeguards can be put in  place, seems the more prudent course.

