Washingtonpost.com
Thursday, July 16, 1998

The following is the text of the orders issued by the U.S. Court of Appeals on July 16 refusing to block Secret Service testimony. Also included is a statement by Circuit Judge Laurence Silberman in which he calls the Justice Department's case "analytically impossible" and a "constitutional absurdity." Footnotes have been omitted.

In re: Sealed Case

BEFORE: Williams, Ginsburg, and Randolph, Circuit Judges

ORDER

Upon consideration of the emergency motion for a stay and an order under the All Writs Act pending disposition of the petition for rehearing in banc; and the opposition thereto, it is

ORDERED that the request of the Department of Justice for a stay pending the filing, and eventual disposition, of a petition for a writ of certiorari in the Supreme Court be denied. The motion of the Department of Justice for an order, under the All Writs Act, 28 U.S.C. § 1851(a), postponing the testimony of seven Secret Service officers before the grand Jury is denied. The administrative stay issued on July 16, 1998, is continued until 12 noon July 17, 1998, to give the Department of Justice an opportunity to seek relief from the Supreme Court.

The Department of Justice has not made a sufficient showing that irreparable harm will result unless a stay and an order are issued, and it has not made a sufficient showing that it will ultimately prevail in establishing the privilege it alleges, See D.C. CIR. R. 8(a)(1). The privilege is said to be necessary because, without it, the President will distance himself from Secret Service agents charged with the duty of protecting him. See In re Sealed Case, No. 98-3069 (D.C. Cir. July 7, 1998). The harm asserted is future harm, depending on a prediction about what the President will do in the absence of the privilege. This court has ruled that the privilege does not exist; no judge on the court has even requested a vote on the Justice Department's suggestion for rehearing en banc. If harm of the sort the Department envisions is now occurring, it therefore must be because the President does not believe the Supreme Court will sustain the privilege. Neither a stay nor an order under the All Writs Act can alter or prevent that alleged harm. Testimony today by Secret Service agents regarding past events cannot change our ruling. And such testimony cannot affect how the Supreme Court will rule. We also believe, for the reasons stated in our opinion of July 7, 1998, that the Justice Department's likelihood of success before the Supreme Court is insufficient to warrant further delay in the grand jury's investigation.

Per Curiam

In Re: Sealed Case

BEFORE: Williams, Ginsburg and Randolph, Circuit Judges

ORDER

Upon consideration of appellant's petition for rehearing filed July 14, 1998, it is

ORDERED that the petition be denied.

Per Curiam

In Re: Sealed Case

BEFORE: Edwards, Chief Judge; Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges

Upon consideration of appellant's Suggestion for Rehearing In Banc and the absence of a request by any member of the court for a vote, it is

ORDERED that the suggestion be denied.

Per Curiam

A statement of Circuit Judge Silberman concurring in the denial of rehearing in banc is attached.

Circuit Judges Sentelle and Garland did not participate in this matter.

In Re: Sealed Case, No. 98-3069

SILBERMAN, Circuit Judge, concurring in the denial of rehearing en banc: This is the first time in 13 years on this Court that I have seen a petition for rehearing or an appellant's brief that does not state the identity of the party petitioning or appealing in the caption of the brief. There is a good reason. It is now established beyond dispute that the Independent Counsel stands in place of the Attorney General and represents the United States in any proceeding within his or her jurisdiction. See 28 U.S.C. § 594(a) (1994) (providing that the Independent Counsel has "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General"). The Independent Counsel's briefs therefore are captioned as the briefs of the United States. The Attorney General apparently all too aware of this problem, filed a petition without identifying, in its caption, the party she is representing. Yet on the first page of the brief she purports to represent the United States. That is analytically impossible. We cannot have two opposing lawyers before us representing the same named party. See United States v. Interstate Commerce Commission, 337 U.S. 426, 430 (1949) (recognizing general principle that "no person may sue himself"); see also United States v. Providence Journal Co., 485 U.S. 693, 706 (1988) (finding startling the proposition that "there is more than one 'United States' that may appear before this Court").

Nor is this simply a matter of captioning. Even if under certain circumstances it can be thought that two entities of the executive branch can litigate against themselves under Article III, see United States v. Nixon, 418 U.S. 683, 694-97 (1974) (holding justiciable a suit between the special prosecutor and the President); United States v. ICC, 337 U.S. at 432 (permitting suit between ICC and Attorney General either on the grounds that private railroads were the real parties in interest or that the ICC is an independent agency), the Attorney General lacks prudential standing under the Ethics in Government Act. That Act provides that the Independent Counsel replaces the Attorney General with respect to all matters within the Independent Counsel's prosecutorial jurisdiction. See 28 U.S.C. § 594(a). Indeed, the Act specifically mandates that the Department of Justice and the Attorney General "suspend all investigations and proceedings regarding" the subject matter of the Independent Counsel's investigation. See U.S.C. § 597(a). Unless the Independent Counsel agrees in writing to permit the Department of Justice to continue its involvement in the case, see id., the Attorney General is permitted to file only an amicus brief in such a proceeding. See 28 U.S.C. § 597(b). An amicus brief, of course, would be inadequate here because if the Attorney General is not permitted to "represent" the United States (the Treasury Department) neither is any other government lawyer. It seems clear to me then that no one in the United States Government, speaking for the government, has standing to oppose the Independent Counsel in this proceeding, and, therefore, neither we nor the district court have jurisdiction over this case.

That, as should be apparent, means that it is up to the Independent Counsel – the surrogate Attorney General in this matter – to decide whether the "privilege" asserted by the Secret Service as a government entity should be recognized. It might be thought that it is somewhat anomalous to permit an Independent Counsel to decide on his or her own whether the Secret Service should be compelled to testify before a grand jury investigating the President of the United States. But the Ethics in Government Act contemplates that an Independent Counsel – performing the role of Attorney General – would determine the appropriate balance between national security and law enforcement interests in a particular case. See § 594(a)(6). Indeed, that was one of the very reasons this court, see In Re: Sealed Case, 838 F.2d 476,503 (D.C. Cir. 1988), and later Justice Scalia in dissent, see Morrison v. Olson, 487 U.S. 654, 708 (1998) (Scalia, J., dissenting), thought the statute unconstitutional. But the Supreme Court majority brushed those concerns aside. So Congress and the Supreme Court have crossed that bridge.

Of course the President is entitled to personal representation against the Independent Counsel and it would be open to him to assert any personal privilege, but it seems even more farfetched than is the present claim to conclude that he would have a personal protection privilege – which I suppose is why the case is postured as it is. But the notion, about which the panel was dubious, that the newly minted Secret Service Protection Privilege is being asserted by the Treasury Department, independent of the President, seems to me to be a constitutional absurdity. The Attorney General is, in effect, acting as the President's counsel under the false guise of representing the United States, contrary to the whole purpose and structure of the Ethics in Government Act. I am mindful of the terrible political pressures and strains of conscience that bear upon senior political appointees of the Justice Department when an Independent Counsel (or special prosecutor) is investigating the President of the United States. Those strains are surely exacerbated when the President's agents literally and figuratively "declare war" on the Independent Counsel (can it be said that the President of the United States has declared war on the United States?). The Act, however, limits the options that the Attorney General can legally (and honorably) pursue. Litigating against the Independent Counsel in this case is not among them. See United States v. Wilson, 26 F.3d 142, 150 (D.C. Cir. 1994) (stating that "the principal aim of the independent counsel provisions is to guard the court-appointed prosecutor from undue influence by the Administration in general and the DOJ in particular") (emphasis added); see also S. REP. No. 170, 95th Cong., 2d Sess. 66 (1977), reprinted in 1978 U.S. CODE CONG. & ADMIN. NEWS 4216, 4282 ("The whole purpose of [the Act] is defeated if the special prosecutor is not independent and does not have clear authority to conduct a criminal investigation and prosecution without interference, supervision, or control by the Department of Justice."). Although I think the panel opinion is substantively correct, I would dismiss the case as outside out jurisdiction.