Michael K. Deaver v. Whitney North Seymour, Jr., as Independent Counsel
822 F.2d 66
D.C. Cir.
1987
Check Treatment

*1 SILBERMAN, Before WILLIAMS and GINSBURG, Judges. Circuit Opinion for the Court filed Judge Circuit SILBERMAN. Separate Concurring Statement filed Judge Circuit D.H. GINSBURG. SILBERMAN, Judge: Circuit This challenge case involves a by former Deputy White House Chief of Staff Mi- chael K. Deaver to the constitutionality of provisions counsel Act, Ethics in Government 28 U.S.C. §§ (1982 591-98 Supp. 1985). Ill & Deaver complaint filed a civil also, federal district F.Supp. seeking declaratory re- lief Whitney counsel Seymour, North Jr.’s continued exercise of prosecutorial authority. Following the dis- trict court’s denial of his pre- motion for a liminary injunction, appealed to this court and moved for Emergency Stay preserve quo the status until we deter- mined the constitutionality vel non Act. He stay absent a imminent, would suffer harm the form of a criminal indictment obtained by Seymour. In an Order dated March 1987, we held that Deaver’s lawsuit consti- impermissible tuted an preemptive civil proceeding. to a criminal Ac- cordingly, we denied the motion for Emer- *2 motion, gency Stay, tion, and on our own Deputy sum- the Attorney General May on applied to marily special affirmed the district court’s denial a division of this appointment court for of preliminary injunction. independent of a then an We or- counsel.2 The application detailed dered the case remanded to the district attempts by lobby Deaver to the White to dismiss court with directions the com- House on clients, behalf of two the Govern- plaint. explain that We now decision. ment of Canada and the Commonwealth of Rico, requested Puerto and investigation I. to determine prosecution whether was war- From 1981 until Michael Deaver ranted for violations of 18 U.S.C. § as House Deputy served White Chief of (1982)3 any or other federal criminal law. and to the Staff Assistant President of the later, One week the appointed May In of United States. left Whitney Seymour, North Jr. to serve as position his at the White House and estab- independent counsel. organizing After a firm of lished the Michael K. Deaver and arranging staff and grand for a jury, Sey- Associates, lobbying association of which began mour investigation nine-month into Thereafter, president. he is the Deaver’s lobbying Deaver’s February activities. On government contacts with officials on be- 24, 1987, Seymour informed Deaver that he object half of his clients became the of grand was about to ask the jury to return public scrutiny. April On five an indictment. The day, next Deaver filed members of the United States Senate wrote this claiming civil action the Ethics in Attorney and, pursuant General to Government Act is unconstitutional be- 595(e) (1982),1 requested U.S.C. the § cause prosecutorial it vests authority, appointment independent of an counsel to belongs which exclusively to the Executive investigate lobbying Deaver’s activities. branch, in an subject individual who is not growing public Amid speculation concern- presidential appointment, to control, or re- ing possible impropriety the of his contacts moval. Deaver moved enjoin preliminar- to with former White House associates on ily Seymour’s efforts to obtain an indict- clients, of his behalf Deaver himself re- ment, contending that irrep- immediate and quested that an ap- counsel be arable harm equitable would befall him if pointed. Finding grounds reasonable granted. relief were not He asserted that warrant investigation prosecu- further or if Seymour’s halted, activities were not 595(e) provides: 1. Section provides assignment 2. The Act for the of three Judges majority majority party A Circuit to a of division of the United States members or a majority nonmajority party Appeals of all members of Court of for the District of Columbia Judiciary the Committee on the of either purpose appointing indepen- Circuit for the Congress may request writing House of the dent counsels. See 28 U.S.C. 49 If the Attorney apply ap- that the pointment General for the General, Attorney upon completion prelimi- of a counsel. Not a[n] nary investigation, grounds” finds "reasonable thirty days receipt later than after the of such investigation prosecu- to believe that further or request, days a the or not later than fifteen after warranted, or, days ninety tion is if within after completion preliminary investigation of a receiving preliminar- "information” sufficient to respect of the matter with to which the re- ily investigate person, fails to find that no made, later, quest Attorney whichever is the warranted, investigation or then provide General shall any written notification of Attorney apply General "shall to the division Attorney action the General has taken in appointment indepen- of the court for of a[n] and, response request applica- to such if no 592(c)(1) (1982). dent counsel." 28 U.S.C. § tion has been made to the division of the Attorney General recused himself from this court, why application such was not made. appointed Deputy Attorney matter and Gen- provided Such written notification shall be place. eral to act in his persons making the committee on which the serve, request shall and not be revealed to any party, except prohibits high-level third the committee 3. Section 207 former may, upon lobbying either on its own or employees government initiative under General, request Attorney public make certain circumstances in connection with mat- portion portions such of such notification they responsibility govern- ters for which had judgment preju- as will not in the committee’s ment officials. rights dice the individual. “continuing stay administrative and parties would suffer destruction ordered the supplemental business,” to file briefs. “injury reputation to his dignity,” expenditure “the substan- March considering On in his defense.” tial resources briefs, supplemental we dissolved our ad- stay, ministrative denied Deaver’s Emer- temporarily The district court restrained gency Stay, Motion for affirmed the dis- seeking Seymour from an indictment. La- *3 trict court’s denial of his pre- motion for a ter, however, applying four-part test liminary injunction, and remanded the case in by Washington set out this court Metro. with directions to dismiss the complaint. Tours, Holiday Comm’n v. Area Transit 841, Inc., (D.C.Cir.1977), II. preliminary denied the motion for a court, The applying district the Holiday injunction. The district court concluded test, thought necessary Tours it to consid- might Deaver that harm suffer as the appellant er the likelihood that would suc- criminal indictment result of a was not ceed on the merits of his constitutional irreparable because there existed an ade- authority indepen- of the law, quate remedy at since Deaver could dent counsel. We do not. Even were we charges move to dismiss the under Federal disposed agree entirely appellant’s with 12(b)(1) Rule of Criminal Procedure for “de- argument, constitutional we think he has prosecution.” in fects the institution of the right injunction no restraining to an pend- The court also concluded that Deaver had ing indictment a federal court. failed to demonstrate the likelihood of ulti- rule, dating traditional back to the because, mate success on the merits in the English division between of courts law and view, district proba- court’s the Act would equity, jurisdic- was that the latter had “no bly not be found to offend the Constitution. prosecution, tion punishment over the Finally, public the court concluded the in- pardon or the of crimes or misdemeanors” required any possible terest violations enjoin and therefore could not pro- criminal speedily prosecuted, of the criminal law be ceedings, Sawyer, 200, 210, In re 124 U.S. likely an allowing interest most secured (1888). 31 L.Ed. 402 De- Seymour immediately to seek an indict- parting somewhat from this rule around ment. century, Supreme the turn of the Court Although applica- the denial Deaver’s permitted certain cases federal courts to preliminary injunction tion for a is an inter- injunctions against issue state court crimi- locutory appealable order under 28 U.S.C. proceedings threatened federal 1292(a)(1) (1982),4 the district court in § rights. See, e.g., constitutional Dobbins v. addition certified for this court’s review the 223, Angeles, 241, 18, Los 195 U.S. question constitutionality vel non of 22, (1904)(court equity may L.Ed. 169 “controlling question the Act as a of law” enjoin prosecution under void law where pursuant 1292(b) (1982).5 to 28 U.S.C. § property rights would otherwise be de- immediately appealed the district stroyed); Raich, Truax v. sought emergency injunc- court’s order and (1915)(court 60 L.Ed. 131 preclude tive pend- relief to an indictment enjoin enforcement of unconstitutional ing our five-day review. We entered a criminal law when protect right essential to 1292(a)(1) provides controlling Section question "[T]he courts of such order involves a appeals jurisdiction appeals shall have from: ground law as to which there is substantial (1) Interlocutory orders of the district courts of opinion for difference of and that an immedi- granting, continuing, the United States ... ifying, refusing mod- appeal may materially ate from the order dissolving injunctions____" litiga- advance the ultimate termination of the 1292(a)(1) (1982). 28 U.S.C. § tion, writing he shall so state in in such order. Appeals may thereupon, The Court of in its 1292(b) provides: 5. Section discretion, permit appeal to be taken from judge, making When a district in a civil order____ such appealable action an order not otherwise un- 1292(b) (1982). 28 U.S.C. section, opinion der this shall be of the livelihood). injunction A federal exercise of to earn First rights, see, Amendment prevent from e.g., Wooley was available to state officers Maynard, 705, instituting “under ex S.Ct. (1977) (threat- L.Ed.2d 752 traordinary circumstances where the dan ened enforcement of unconstitutional stat- ger loss constitutional requiring ute “Live [of Free or Die” motto on great right both and immediate.” See plate against car license was] covering those up Boykin, 271 46 motto); Fenner v. U.S. Inn, Inc., Doran v. Salem S. Ct. L.Ed.2d 648 (ordinance banning topless dancing, en- however, Court, recently More trou- forcement of which threatens to bankrupt comity, tightened bled notions of petitioner); Pfister, Dombrowski v. granting injunctions criteria for proceed- that interfere with state criminal (1965)(civilrights repeatedly pros- workers “cost, ings, holding anxiety, and that the ecuted broadly under state law regulating *4 having against inconvenience of to defend speech).6 See also v. Thompson, Steffel single prosecution” a criminal are not rec- 452, 1209, 415 U.S. 94 S.Ct. 39 L.Ed.2d 505 ognized irreparable injuries justifying as an (1974) (granting declaratory relief to hand- Harris, equitable remedy. Younger 401 v. repeatedly bill distributors threatened with U.S, 37, 46, 746, 751-52, 91 27 L.Ed.2d S.Ct. arrest). In all other cases that arisen have (1971). Jury 669 also Bokulich See v. period, person in that asserting a consti- County, 394 Commission Greene U.S. tutional process criminal has 97, 98, 767, 768, 89 22 L.Ed.2d 109 S.Ct. thought adequate been to have an non-in- (1969); Spielman Co., Motor Sales Inc. v. junctive remedy; may raise his constitu- 678, 681, 295 55 Dodge, U.S. S.Ct. 79 tional claim as a defense in the state crimi- (1935). Although surely L.Ed. 1322 it is proceedings, once initiated. person may true that an innocent suffer great reputation property harm to his recently recognized We have that while crime, by being erroneously accused of a Younger the line of cases constricts feder prose- all citizens must submit to a criminal prosecutions, al intervention in state it does brought good larger cution in faith so that necessarily petition control a for a fed preserved. societal interests be injunction ongoing eral civil to restrain an Jeannette, 157, Douglas City v. 319 U.S. proceeding. criminal See Juluke v. federal 163, 877, 880-81, 63 87 L.Ed. 1324 Hodel, 1553, (D.C.Cir. 1556-57 (1943); Beal v. Missouri R.R. Pacific 1987). Nevertheless, in no case that we 418, 420-21, Corp., 312 U.S. 61 S.Ct. have been has a federal able discover (1941). 85 L.Ed. 577 As Justice Frankfurt- enjoined prosecutor’s a federal inves explained, “[b]earing er the discomfiture tigation presentment of an indictment. prosecution and cost of a for crime even course, prosecutor typically Of a federal person painful an innocent is one of the court,7 brings only thereby cases in federal obligations citizenship.” Cobbledick v. indictment, affording defendants, States, United 309 U.S. 60 S.Ct. in federal forum which to assert their de (1940). L.Ed. including those based on the Con fenses— Thus, decades, past in stitution. Because these defendants are few the Su- preme already guaranteed upheld injunctions Court has federal access to a federal court, proceedings only surprising subjects to restrain state it is not that criminal investigation gained where the chilled federal in threatened have never ns. Dombrowski, 37, 47-49, 746, 752-753, alleged plaintiffs In 27 L.Ed.2d had 91 S.Ct. faith, prosecutions brought Dombrowski). their in bad see (discussing 482, 1118-19, yet 380 U.S. at 85 S.Ct. at allegation rely Court did not seem to on this as Columbia, In the District of the United States primary ordering injunc- basis for that an charges Attorney may prosecute also Harris, granted. Younger tion be But see junctive prosecutors.8 der the collateral order doctrine. See Co Moreover, noted, the district court Rule hen v. Corp., Ind. Loan Beneficial 12(b)(1)of the Federal Rules of Criminal 1225-26, permits any Procedure defendant to raise L.Ed. 1528 The Court permit has motion, after indictment but before tri- interlocutory appeal ted of the denial of al, a defense based on “defects the insti- motions to bail, reduce excessive Stack v. prosecution.”9 tution of the Deaver’s chal- Boyle, lenge essentially that —a contention that (1951), to dismiss an indictment on double a constitutional defect in there would be jeopardy grounds, States, Abney v. United any prosecution growing the institution of investiga- out of the counsel’s , (1977) and to prosecution against dismiss a By implication, the existence tion. of Rule congressman prohibited by Speech 12(b)(1)suggests appellant’s constitu- Constitution, and Debate Clause of the Hel challenge is not to tional be raised in a Meanor, stoski v. preindictment civil action. This 2445, (1979).10 case, L.Ed.2d 30 In each implication strengthened by the tradition- appeal immediate necessary was because reluctance, discussed, al which we have petitioner had the violation of a equity court to interfere with criminal specific right guaranteed by the Constitu proceedings. ap- And we think the limited legal practical tion “the value of which pealability denying of district court orders destroyed would be if it were not vindicat pretrial motions criminal cases makes ed before trial.” Hollywood Car, Motor implication bring Deaver cannot 458 U.S. at (quoting S.Ct. at 3083 *5 12(b)(l)-type this Rule claim to our court MacDonald, United States v. 435 U.S. inescapable. A district court’s denial of a 56 L.Ed.2d 18 pretrial ordinarily motion is not considered (1978)). appealable “final decision” under 28 argues Deaver 1291; U.S.C. the defendant must there- § investigation counsel’s important violates trial, only fore stand after conviction rights and that this violation cannot ade- may bring the issue to the Court of quately be remedied at a later date. He Appeals. Hollywood See United States v. being contends that he is forced to defend Co., Inc., Motor Car 102 charges himself brought (1982); by private a mere vigilante. citizen—a Bird, It is United States v. 709 F.2d 390 (5th Cir.1983). true that the burden of being haled into Supreme The Court has de- parted pretender throne, court application from this of the “final so to judgment speak, rule” in only completely criminal cases on cannot be remedied once occasions; begins, three in each case it found the a trial for the defendant would still effectively district court’s decision Yet, final un- have indignity. suffered the without system. Congress, the District of Columbia by legislation, delays See D.C. unless their im- 23-101(c) (1981). Code Ann. § plementation put amends them. Once and/or effect, into the Federal Rules have the force of (but hold) actually Juluke assumed did not (1982). law. See 18 U.S.C. 3771 See also that federal courts extend Doran and Woo- Hungate, Changes in the Federal Rules Crimi- ley justify enjoining to future arrests and Procedure, (1975). nal 61 A.B.AJ. 1203 prosecutions that chill the exercise of First rights. Amendment See 811 F.2d at 1557. Helstoski, Applying the rationale of three cir- asserting Deaver is neither a violation of First permitted sitting cuit courts have federal offi- rights complaining Sey- Amendment nor immunity prosecution cials mour's who claim on threatened indictment chills future be- separation powers grounds bring havior. to interloc- utory appeals from the denial of their motions 9. The Federal Rules of Criminal Procedure are Myers, to dismiss. See United States v. 635 F.2d comprehensive pleading, prac- a tice, set of rules of (2d Cir.1980) (Member Congress); United procedure prose- for federal criminal (11th Cir.1982) Hastings, States v. 681 F.2d 706 Supreme given cutions. The Court has been (federal Claiborne, judge); United States v. authority by prescribe statute to such rules and (9th Cir.1984) (federal judge). F.2d 842 present Congress them to the for examination. later, proposed days rules take effect 90 us, deciding questions squarely an issue not before constitutional if at possible. all that Deaver’s it un- Auth., doubt claim—were Valley we See Ashwander Tennessee 12(b)(1) successfully raised in a mo- 288, 346-48, Rule 466, 482-84, indictment—would be immediate- (Brandeis, J., tion after concur under the collateral order ex- ly appealable ring). principle particularly strong This is judgment to final rule. Unlike ception constitutionality when of a federal stat in the cases described the defendants challenged. Hastings ute v. Judi above, does not assert a constitu- States, cial the United Conference trial, right merely to stand tional but (D.C.Cir.1985), F.2d de cert. — Seymour qualified is not claims that nied, -, Assuming prosecution. arguen- direct appellant L.Ed.2d If acquit correct, rights contention is do Deaver’s charges brought against him, ted of the we vindicated a reversal of can be obliged of course would not be to decide See, e.g., Hollywood Motor conviction. this constitutional issue.11 Car, 458 U.S. at 102 S.Ct. at 3084 Congress has established a comprehen- (defendant’s prosecutorial vindictiveness governing sive set of rules federal criminal through post-convic- be remedied claim can prosecutions Federal Rules of Crimi- —the MacDonald, appeal); tion United States v. These provide Procedure. rules ade- although limited, quate, opportunities for (1978) (objection to trial 56 L.Ed.2d defendants to shortcomings speedy grounds appealable on trial based prosecutorial authority. The judg- final conviction); only after States v. United rule, moreover, ment generally prevents Cir.1986) (10th Taylor, bringing appeals defendants from af- until (claims misconduct, prosecutorial includ- ter conviction. We cannot allow Deaver grand ing improper use of state officers thereby encourage avoid these rules—and investigation, appealable convic- jury disruptive litigation by a flood of civil — tion); Bird, (claim 709 F.2d at 392 bringing his constitutional defense in an plea bargain agree- violated Prospective suit. civil defend- prosecute not to on ment can be vindicated cannot, by bringing ancillary equitable ants Thus, post-conviction appeal). Deav- *6 proceedings, circumvent federal criminal bring er this same claim a Rule to procedure. motion, 12(b)(1) the likely we think it final judgment rule would of a appeal bar GINSBURG, Judge, Circuit D.H. concur- of denial that motion until after conviction. ring: bring Were to allow Deaver to a civil we challenge, rights ap- with of its attendant equity jurispru It is a doctrine of “basic peal, begins, before even we act, equity dence of should not that courts thereby judg- undermine the final would particularly and should not act to restrain a ment rule. prosecution, moving par when the criminal challengé ty adequate remedy at will

That Deaver’s is a serious one has an law and far-ranging eq if troubling injury with and constitution not suffer denied Harris, argu Younger his 401 implications support al does not uitable relief.” v. 43-44, judi 91 ment for accelerated and S.Ct. 27 L.Ed.2d unorthodox U.S. Indeed, (1971), substantially approvingly in v. quoted cial review. it weak 669 Juluke Hodel, (D.C.Cir.1987).1 obligation We to ens it. have an avoid may appellant in 11. The district the consti- since not raise the issue court’s certification of suit question question controlling the did. tutional as a manner he 1292(b) (1982) law under 28 does not U.S.C. sure, Juluke, disposition. our that issue affect To be 1. In court indicated that the federal- this controlling proceed- underlying Younger be in the context well in the criminal ism concerns indictment, but, enjoin prose- ing would asked to a state follow Deaver’s of a federal court course, terms, involving 1292(b), operate by section does not did "in a situation its cution not And, apply proceedings. separate to criminal as we in have civil and criminal feder- explained, controlling (emphasis in the issue in 811 F.2d at 1556 cannot be this al court actions.” against applied deny- this rule in eliminated defense a sin- The district request prelimi- prosecution. for a ing gle Michael Deaver’s criminal independent nary injunction preventing Harris, Younger v. 401 U.S. at Seymour, Jr. from Whitney North counsel (citation omitted). at 751-52 It is of no grand jury. from the seeking an indictment moment that Deaver bases his whether the appeal we must decide On alleged upon unconstitutionality of the its discretion in so district court abused counsel; injunctive office of Inn, Inc., holding. Doran v. Salem See granted relief is not 922, 931-32, 2567- U.S. complained-of] even if statutes are [the (1975); Hodel, 68, 45 L.Ed.2d 648 Juluke v. unconstitutional. “No citizen or member 811 F.2d at community prose- is immune from explained, has at As the court see cution, good faith, alleged for his crim- 67-68, challenges the constitution- pros- inal acts. imminence of such a provisions ality of the counsel though ecution even to be unau- Act, in Government of the Ethics U.S.C. thorized and hence unlawful is not alone 1985), (1982 Supp. & Ill and 591-98 §§ ground equity for relief in which exerts that, indicted, if he claims he would suffer extraordinary powers only prevent its to “continuing destruction of his busi- irreparable injury plaintiff who ness,” “injury reputation digni- to his and seeks its aid.” expenditure ty,” and “the of substantial Buck, Watson v. U.S. in his defense.” resources It clear (1941),quoting type this of harm does not rise to the Beal “irreparable injury”: v. Corp., level of Missouri Railroad Pacific U.S. 85 L.Ed. types injury, particular, Certain Harris, Younger cost, anxiety, and inconvenience hav- at at 753. The district ing against single to defend criminal court therefore did not abuse its prosecution, discretion could themselves be here, denying injunctive relief “irreparable” special in the because considered Instead, legal injury solely “the faces is sense that term. [Deaver] plaintiff’s federally protect- every proceed- ‘that incidental to threat to the ”2 rights ing brought good lawfully ed must be one that cannot be and in faith.’ time, however, original). Id.), enjoin existing prosecutions." At the same we re- principle equitable upon Younger guid- affirmed the broad an- relied line of cases for Younger quoted in the appropriate grant eq- nounced in text. ance as to when it is Accordingly, quoting passage this apply Younger uitable relief. I cases in Younger, the court in Juluke stated: order to determine whether equitable single prosecution appropriate, ap- To the extent that [this doctrine] suggests judge plying equitable principles that the District Court in the the same as did the *7 civil case had discretion to defer action in the proceeding court in Juluke. pending before him resolution of case, principle unexcep- 2. Deaver claims indictment will result in the criminal tional____ business," "continuing destruction of but only compare upon conceivable reason not to consider this harm does not to that relied case, Court, injunctive the claim for relief in the civil case in Doran v. Salem Inn. In that call, grant upheld injunctive was that it would have been inefficient to do on a “close" so, validity prose because the same issues—the relief to bars which threatened with applicability regulations employing topless be de- cution for dancers. It was —would That, however, relief, undisputed preliminary they cided in the criminal action. that "absent merely denying restates the traditional test for would suffer a substantial loss of business and bankruptcy” equitable perhaps comply the consideration of relief—that even if forced to 932, adequate remedy there is an available at law. with the law. 422 U.S. at 95 S.Ct. at 2568. Here, Doran, persuasive We find this reason as to whether unlike in business interests would indictment, may enjoin ongoing prosecution only indirectly one court suffer as a re reputation. in another court. of the harm to Deaver’s Such sult only conjectural proceeded than that in Id. at 1557. The court then to deter- harm is not more Doran, intimately mine whether the district had its but is also linked with the court abused denying injunctive that must be discretion in relief as "discomfiture” ("They sought person.” an innocent Cobbled arrests for future conduct never borne "even 49, Harris, Younger 401 U.S. at v. 753, quoting Douglas City

at v. Jean nette, S.Ct. (1943).3 I read the

87 L.Ed. 1324 Because ultimately upon to rest

court’s decision basis,

same see at I concur.

UNITED STATES INTERNATIONAL COMMISSION, Appellant,

TRADE

v.

TENNECO WEST.

No. 86-5505. Appeals,

United States Court of

District of Columbia Circuit.

Argued March

Decided June States, dy 505, judicial hearing.” ick 540, 541, officer v. United S.Ct. before a for Id. at L.Ed. at It was in this that the S.Ct. 959. sense Hague were not "brought lawfully.” that, 3. Deaver contends due to con indepen case, stitutional infirmities in the office conversely, In Deaver’s available has counsel, any dent indictment would not be here legal provided to him the crimi- remedies lawfully." reading "brought Doug A further process certainly post-indictment, as the — phrase indicates, las indicates that this was meant to dis perhaps pre-indict- even C.I.O., tinguish Hague the situation in contemplated ment if the narrow circumstances (1939), S.Ct. Ryan, in United States v. sought barring which a union arise *8 Jersey police continuing (“If subpoena unduly the New from their ... burdensome [a] removing unlawful, practice repeatedly Jersey petitioner] otherwise refuse [the City engaged leafletting litigate comply questions union members and those in the “compell[ing] ferry them boats contempt to board des event or similar are circumstances, him.”). brought against tined for New York." Id. at 59 S.Ct. at 958. In these facts, light petitioner In of these the Court stated that the where harm, has not shown removal, "exclusion, personal grant equity may and in restraint civil court of terference, violence, thereby supplant the crimi- force and are accom Hodel, plished process. authority F.2d at without of law and without See Juluke v. 1557-58, bringing promptly persons cited in n. 20. taken into custo- and cases