                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 IN RE APPLICATION TO UNSEAL                              Misc. No. 18-0019 (BAH)
 DOCKETS RELATED TO THE
 INDEPENDENT COUNSEL’S 1998                               Chief Judge Beryl A. Howell
 INVESTIGATION OF PRESIDENT
 CLINTON



                               MEMORANDUM AND ORDER

       Cable News Network, Inc. (“CNN”) and its journalist Katelyn Polantz have requested,

via letter, dated February 9, 2018, that eight sealed Miscellaneous matters arising from

Independent Counsel Kenneth W. Starr’s investigation in 1998 of then-President William

Jefferson Clinton “be unsealed and made public.” CNN/Polantz Request to Unseal Dockets

Related to the Independent Counsel’s 1998 Investigation of President Clinton (“CNN/Polantz

Unsealing Request”) at 1, ECF No. 1. As CNN correctly points out, each of these dockets

“remains an opaque SEALED vs. SEALED.” Id. Indeed, these docket numbers do not appear

on the Federal Judiciary’s electronic public access service, Public Access to Court Electronic

Records (PACER), because they are being treated as sealed dockets with sealed docket entries.

The Miscellaneous dockets at issue are described by CNN as follows:

           1.   98-mc-095     Bruce Lindsey testimony
           2.   98-mc-096     Sidney Blumenthal testimony
           3.   98-mc-097     Nancy Hernreich testimony
           4.   98-mc-148     Secret Service Testimony
           5.   98-mc-202     White House documents
           6.   98-mc-267     Presidential subpoena
           7.   98-mc-278     Lanny Breuer testimony
           8.   Unknown       Terry Lenzner and Investigative Group Intl., Inc. subpoena.




                                                1
Id. at 1. 1

         The CNN/Polantz Unsealing Request contends that the unsealing of these Miscellaneous

dockets, “as well as all of the contents therein,” id. at 4, is appropriate because (1) “[a]ll of these

matters were widely covered by the media at the time,” id. at 1; (2) these matters, “except for the

Presidential subpoena matter, resulted in a myriad of judicial rulings by this Court, the D.C.

Circuit, and/or the Supreme Court,” id., with information from these matters “published in great

detail in [ ] judicial opinions,” id. at 2; (3) “[t]he identity of the witness or entity at the center of

these sealed cases, as well as a few of the filings from them, were published by the Independent

Counsel in 1998 in an appendix to his report to the House of Representatives,” id.; (4) since

these dockets “appear to relate only to witnesses and entities [sic] compliance with grand jury

subpoenas,” they “likely do not contain the resulting core Rule 6(e) grand jury material,” id. at 3;

and, finally, (5) “[g]iven that the present administration faces the possibility of compelled

presidential testimony and the application of various privileges, there is a keen public interest in

learning more about how those interactions took place during the 1998 clash between an

independent prosecutorial body and the executive branch,” id.

         Seven of the eight Miscellaneous docket numbers at issue are referenced in the report

submitted to the House of Representatives by Independent Counsel Starr, see Communication

from Kenneth W. Starr, Independent Counsel, Transmitting a Referral to the United States House

of Representatives Filed in Conformity with the Requirements of Title 28, United States Code,

Section 595(c) (“Starr Report”), H.R. DOC. NO. 105-310 (1998). In addition, some, but not all,




1
         The Miscellaneous case number for the matter described as “Unknown—Terry Lenzner and Investigative
Group Intl., Inc. subpoena” is not identified in the Starr Report, although the litigation history of this matter is
summarized in an appendix. See Communication from Kenneth W. Starr, Independent Counsel, Transmitting a
Referral to the United States House of Representatives Filed in Conformity with the Requirements of Title 28,
United States Code, Section 595(c) (“Starr Report”), H.R. DOC. NO. 105-310 (1998), Vol. II at 183–200.

                                                          2
of the documents entered on the dockets for these matters appear in full or are summarized in the

appendices to the Starr Report. The D.C. Circuit authorized the Independent Counsel to disclose

to the House of Representatives “all grand jury material that the independent counsel deems

necessary to comply with the requirements of [28 U.S.C.] § 595(c),” based upon the “ʻEx Parte

Motion for Approval of Disclosure of Matters Occurring Before a Grand Jury’ filed by

Independent Counsel [ ] Starr on July 2, 1998,” which ex parte motion remains sealed. See

Order, In re Madison Guaranty Savings & Loan Ass’n, Special Div. No. 94-1 (D.C. Cir. filed

July 7, 1998), reprinted in Starr Report, Vol. II at 10.

       Consequently, the docket numbers for seven of the eight Miscellaneous matters at issue

and any documents from those matters revealed in full in the Starr Report have already been

unsealed and should have been made publicly available. See Starr Report, App. Vol. II, at 193

and 197–99 (disclosing Miscellaneous matter numbers 98-095, 98-096, 98-097, 98-148, 98-202,

98-267, and 98-278). Apparently, after issuance of the Starr Report, no specific direction was

provided to the Clerk’s Office as to which documents included in the Starr Report were to be

disclosed, and the Clerk’s Office rightfully carefully maintains the confidentiality of sealed

matters unless expressly directed to unseal records. The Clerk’s Office is therefore now ordered

to make publicly available promptly on the Court’s Case Management/Electronic Case Filing

(CM/ECF) system and PACER these seven Miscellaneous matter numbers, as well as the

documents from those matters that have been revealed in full in the Starr Report, which

Miscellaneous matter numbers and corresponding unsealed documents are listed in the

attachment to this Order.

       In addition to the records released pursuant to the D.C. Circuit’s July 7, 1998 order,

further examination of the dockets for seven of the eight Miscellaneous matters at issue reveals



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that, in five of those cases—Misc. No. 98-95, Misc. No. 98-96, Misc. No. 98-97, Misc. No. 98-

148, and Misc. No. 98-278—then-Chief Judge Norma Holloway Johnson previously entered

orders unsealing, in full or in part, certain documents, while other documents filed in these

matters were never placed under seal. For example, then-Chief Judge Johnson issued public

orders in these five cases unsealing certain documents in redacted form. The Clerk’s Office is

therefore ordered to make publicly available promptly on the Court’s CM/ECF system and

PACER those previously unsealed, in full or in part, or not filed under seal, documents, which

documents are listed in the attachment to this Order.

        Not all documents in the Miscellaneous matters at issue have been unsealed. In

considering the pending CNN/Polantz Unsealing Request for documents currently under seal in

those matters, the positions of the U.S. Department of Justice (“DOJ”) and relevant stakeholders

are relevant. To that end, DOJ is directed to provide its view, if any, on whether the eight

Miscellaneous matters at issue and corresponding sealed docket entries may be unsealed. DOJ is

also directed to provide notice to the individuals, who were recipients of the grand jury

subpoenas at issue or otherwise involved in these matters, concerning the pending CNN/Polantz

Unsealing Request, so that these individuals have an opportunity to inform the Court of their

views, if any, and address in camera and ex parte any privacy concerns these individuals may

have about the requested unsealing.

        Accordingly, it is hereby

        ORDERED that the Clerk’s Office shall make publicly available promptly on the

Court’s CM/ECF system and PACER the docket numbers Misc. No. 98-95, Misc. No. 98-96,

Misc. No. 98-97, Misc. No. 98-148, Misc. No. 98-202, Misc. No. 98-267, and Misc. No. 98-278;

and it is further



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       ORDERED that, in those cases, the Clerk’s Office shall make any previously unsealed

documents and any documents not filed under seal, as identified in the attachment to this Order,

promptly available to the public; and it is further

       ORDERED that, pending further consideration by this Court, all other documents in

those cases shall remain under seal; and it is further

       ORDERED that the U.S. Department of Justice shall, by February 23, 2018, provide the

Court (1) its views as to whether the documents remaining under seal in the eight Miscellaneous

dockets at issue may be unsealed, (2) confirm that the individuals, who were recipients of the

grand jury subpoenas at issue or otherwise involved in these matters, have been notified of the

CNN/Polantz Request, and (3) provide in camera and ex parte any privacy concerns regarding

such individuals.

       SO ORDERED.

       Date: February 12, 2018




                                                         __________________
                                                         BERYL A. HOWELL
                                                         Chief Judge




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                           ATTACHMENT TO MEMORANDUM AND ORDER
           LIST OF MC MATTERS AND DOCUMENTS TO BE MADE PUBLICLY ACCESSIBLE
Matter No. ECF No.                           Document Title                               Unsealing Order
98-MC-95 9          Memorandum of the White House in Opposition to OIC's Motions Order, In re Madison Guaranty
                    to Compel Bruce R. Lindsey and Sidney Blumenthal to Testify   Savings & Loan Ass'n , Special
                    Concerning Conversations Protected by the Attorney-Client,    Div. No. 94-1 (D.C. Cir. filed
                    Presidential Communications, and Work Product Privileges,     July 7, 1998) ("D.C. Cir.
                    including exhibits (consolidated Opposition for 98-MC-95, 98- Order"); reprinted in Starr
                    MC-96, and 98-MC-97)                                          Report, App. Vol. V at
                                                                                  2025–2138
            70         Memorandum Opinion, dated May 26, 1998 - REDACTED               Order dated May 26, 1998, 98-
                                                                                       MC-95, ECF No. 72 (Johnson,
                                                                                       C.J.) ("5/26/1998 Order")
            71         Order, dated May 26, 1998 - REDACTED                            5/26/1998 Order, 98-MC-95
            72         5/26/1998 Order, 98-MC-95, with attachments:                Order not filed under seal.
                       1. Motion to Compel Bruce R. Lindsey to Testify - REDACTED
                       2. Memorandum of the White House in Opposition to OIC's
                       Motions to Compel Bruce R. Lindsey and Sidney Blumenthal to
                       Testify Concerning Conversations Protected by the Attorney-
                       Client, Presidential Communications, and Work Product
                       Privileges - REDACTED
                       3. Declaration of Charles F.C. Ruff - REDACTED
                       4. Reply Memorandum of the United States of America in
                       Support of Motion to Compel Bruce R. Lindsey to Testify -
                       REDACTED
                       5. Motion to Expedite Consideration of Motions to Compel
                       Testimony - REDACTED


            75         Hearing Transcript, June 1, 1998 - REDACTED                     5/26/1998 Order, 98-MC-95
            76         Hearing Transcript, June 1, 1998 - REDACTED                     5/26/1998 Order, 98-MC-95
            77         Hearing Transcript, June 1, 1998 - REDACTED                     5/26/1998 Order, 98-MC-95
            78         Order dated June 2, 1998, 98-MC-95, ECF No. 78 (Johnson, C.J.) Order not filed under seal.
                       ("6/2/1998 Order")
            79         Brief Amicus Curiae for the United States of America, Acting    6/2/1998 Order, 98-MC-95
                       through the Attorney General, filed June 2, 1998 - REDACTED
Matter No. ECF No.                      Document Title                                       Unsealing Order
98-MC-96 33        Memorandum Opinion, dated May 26, 1998 - REDACTED                 Order dated May 26, 1998, 98-
                                                                                     MC-96, ECF No. 35 (Johnson,
                                                                                     C.J.) ("5/26/1998 Order")
           34       Order, dated May 26, 1998 - REDACTED                             5/26/1998 Order, 98-MC-96
           35       5/26/1998 Order, 98-MC-96, with attachments:                     Order not filed under seal.
                    1. Motion to Compel Sidney Blumenthal to Testify -
                    REDACTED
                    2. Reply Memorandum of the United States of America in
                    Support of Motion to Compel Sidney Blumenthal to Testify -
                    REDACTED
                    3. Motion to Expedite Consideration of Motions to Compel
                    Testimony - REDACTED
           37       Hearing Transcript, June 1, 1998 - REDACTED                      5/26/1998 Order, 98-MC-96
98-MC-97   24       Memorandum Opinion, dated May 26, 1998 - REDACTED                Order dated May 26, 1998, 98-
                                                                                     MC-97, ECF No. 26 (Johnson,
                                                                                     C.J.) ("5/26/1998 Order")
           25       Order, dated May 26, 1998 - REDACTED                             5/26/1998 Order, 98-MC-97
           26       5/26/1998 Order, 98-MC-97, with attachments:                     Order not filed under seal.
                    1. Motion to Expedite Consideration of Motions to Compel
                    Testimony - REDACTED
                    2. Motion to Compel [Redacted] to Testify - REDACTED
                    3. Reply Memorandum of the United States of America in
                    Support of Motion to Compel [Redacted] to Testify -
                    REDACTED
           28       Hearing Transcript, June 1, 1998 - REDACTED                      5/26/1998 Order, 98-MC-97
98-MC-148 6         Motion to Compel [Redacted], [Redacted], and [Redacted] to       Not filed under seal.
                    Testify - REDACTED
           7        Opposition to the Independent Counsel's Motion to Compel -       Not filed under seal.
                    REDACTED
           8        Reply Memorandum of the United States of America in Support      Not filed under seal.
                    of its Motion to Compel [Redacted], [Redacted], and [Redacted]
                    to Testify - REDACTED
           9        Memorandum Opinion, dated May 22, 1998 - REDACTED                Not filed under seal.
           10       Order, dated May 22, 1998 - REDACTED                             Not filed under seal.
           15       Hearing Transcript, May 14, 1998                                 Not filed under seal.
           22       Motion for a Protective Order or in the Alternative Motion to    Not filed under seal.
                    Quash Subpoena - REDACTED
           27       Memorandum Order, dated July 16, 1998 - REDACTED                 Order dated July 16, 1998, 98-
                                                                                     MC-148, ECF No. 28 (Johnson,
                                                                                     C.J.) ("7/16/1998 Order")

           28       7/16/1998 Order, 98-MC-148                                       Order not filed under seal.
Matter No. ECF No.                          Document Title                                  Unsealing Order
98-MC-267 1        Motion of William J. Clinton for Continuance, including exhibits D.C. Cir. Order; reprinted in
                                                                                    Starr Report, App. Vol. VI at
                                                                                    2279–2365
           N/A     Transcript of Status Hearing dated July 28, 1998                 D.C. Cir. Order; reprinted in
                   Transcript does not appear on the CM/ECF docket.                 Starr Report, App. Vol. VI at
                                                                                    2369–2403
98-MC-278 1        Emergency Motion of Lanny A. Breuer to Stay Subpoena -           Not filed under seal.
                   REDACTED
           2       Opposition of the United States of America to Emergency Motion Not filed under seal.
                   to Stay Subpoena - REDACTED
             3          Order, dated August 5, 1998                                     Order dated Jan. 21, 1999, 98-
                                                                                        MC-278, ECF No. 22 (Johnson,
                                                                                        C.J.) ("1/21/1999 Order")

             4          Opposition of the United States to White House's Motion for Stay 1/21/1999 Order
                        Pending Appeal of Order Compelling Lanny Breuer's Testimony

             5          Notice of In Camera Need Submission of the United States of     1/21/1999 Order
                        America
             6          White House's Response to the OIC's In Camera Submission        1/21/1999 Order
             7          Memorandum of the Office of the President in Response to This   1/21/1999 Order
                        Court's Order of August 5, 1998 Concerning a Stay of Any
                        Proceedings Pending Appeal
             8          White House's Memorandum in Support of Mr. Breuer's Assertion 1/21/1999 Order
                        of the Attorney-Client Privilege
             9          Memorandum Order, dated August 7, 1998                        1/21/1999 Order
             10         Memorandum Order, dated August 11, 1998                       D.C. Cir. Order; reprinted in
                                                                                      Starr Report, App. Vol. VI at
                                                                                      2477–87
             11         Notice of Appeal                                              1/21/1999 Order
             12         Notice of Appeal                                              1/21/1999 Order
             13         Notice of Appeal                                              Order dated Sept. 10, 1998, 98-
                                                                                      MC-278, ECF No. 17 (Johnson,
                                                                                      C.J.) ("9/10/1998 Order")

             14         Notice of Appeal                                                9/10/1998 Order
             15         Errata                                                          1/21/1999 Order
             16         Motion of the United States of America to Unseal Notices of     1/21/1999 Order
                        Appeal dated August 21, 1998
             17         9/10/1998 Order, 98-MC-278                                      1/21/1999 Order
             22         1/21/1999 Order, 98-MC-278                                      Order not filed under seal.
