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In re Sealed Case

United States Court of Appeals for the District of Columbia Circuit · 1998 · Constitutional Law

Constitutional LawGrand jury secrecyMandamusRule 6(e)Federal Rule of Criminal Procedure 6(e)(2)grand jury secrecyshow cause hearingprima facie case

Facts

Movants in the district court sought an order requiring Independent Counsel Kenneth Starr and/or his staff to show cause why they should not be held in contempt for violating Rule 6(e)(2) by leaking grand jury information to the press. They supported their motions with news reports describing sources as persons close to Starr, and the district court found those reports established a prima facie case under Barry. Reading Barry to require an adversarial show cause hearing, the district court ordered production of requested documents with Rule 6(e) material redacted, permitted limited depositions about press policies and contacts, and allowed subpoenas for similar testimony at the hearing. The Independent Counsel argued these procedures threatened disclosure of confidential investigative information and would burden an ongoing grand jury investigation.

Issue

Whether the court of appeals could use mandamus to review the district court's interlocutory procedural orders in this Rule 6(e)(2) proceeding, and if so, whether the district court erred by requiring discovery and an adversarial evidentiary show cause hearing rather than ex parte, in camera rebuttal procedures. More specifically, the question was how a district court should conduct the rebuttal phase of a Rule 6(e)(2) ancillary civil proceeding once a prima facie case has been established.

Rule

Mandamus is available only when the petitioner has no other adequate means to obtain relief and the right to issuance of the writ is clear and indisputable. In an ancillary civil proceeding under Rule 6(e)(2), once a prima facie case is established under Barry, the government bears the burden of rebutting it, and during an ongoing grand jury investigation that rebuttal should ordinarily be submitted ex parte and in camera to the district court; if the submission conclusively rebuts the prima facie case, the show cause order should be discharged, and if it does not, the court may find a violation and proceed to remedy, using additional in camera, ex parte factfinding tools only if necessary.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal grand jury in Chicago is actively investigating public corruption. After several newspaper stories quote sources described as "people close to the prosecutors," Devon Pike obtains a prima facie Rule 6(e)(2) finding, and the district judge orders the prosecution team to sit for limited depositions and produce communications logs with reporters. The lead prosecutor seeks mandamus instead of refusing compliance and waiting for a contempt order.

Is mandamus most likely available?

Explanation. Mandamus may issue when there is no other adequate means to obtain relief and the right to relief is clear and indisputable. In this Rule 6(e)(2) ancillary civil setting, the contempt path is inadequate because a party cannot know in advance whether any contempt would be civil or criminal, and civil contempt may not be immediately appealable. In addition, compelled discovery and adversarial process during an ongoing grand jury matter create irreparable harms that a later appeal cannot undo.