USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 1 of 39 United States Court of Appeals for the District of Columbia Circuit No. 20-5143 IN RE MICHAEL T. FLYNN, Petitioner. On Petition for a Writ of Mandamus to the United States District Court for the District of Columbia. BRIEF AMICI CURIAE OF ELEVEN MEMBERS OF THE UNITED STATES HOUSE OF REPRESENTATIVES IN SUPPORT OF PETITIONER AND REVERSAL JEROME M. MARCUS Counsel of Record 1121 North Bethlehem Pike, Suite 60-242 Spring House, Pennsylvania 19477 Tel.: (215) 885-2250 jmarcus@marcusauerbach.com Counsel for Amici Members of the United States House of Representatives June 1, 2020 COUNSEL PRESS, LLC (202) 783-7288 * (888) 277-3259 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 2 of 39 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici. The parties, intervenors, and amici appearing before the district court are listed in the Emergency Petition for a Writ of Mandamus filed by Petitioner Michael T. Flynn. In this Court, in addition to the parties, intervenors, and amici listed in the Petition and the present filers, to the best of the knowledge of the undersigned attorney for amici, motions for leave to file amicus briefs have been filed by 16 individuals who served on the Watergate Special Prosecutions Force (the “Watergate Prosecutors”), and by a group of former federal judges. The amici on behalf of whom this brief is filed are eleven Members of the U.S. House of Representatives: Congressman Louie Gohmert, Congressman Andy Biggs, Congressman Mike Johnson, Congressman Bill Flores, Congressman Jody Hice, Congressman Paul Gosar, Congressman Ted Budd, Congressman Andy Harris, Congressman Ron Wright, Congressman Ralph Norman and Congressman W. Gregory Steube. B. Rulings Under Review. The ruling under review is the determination by the District Court to appoint an amicus curiae to advise the trial court on the question whether that court should grant or deny the unopposed Motion of Defendant to Dismiss the Indictment. i USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 3 of 39 C. Related Cases. This case has not previously been before this Court. There are no pending related cases. Dated: June 1, 2020 Respectfully submitted, By: /s/ Jerome M. Marcus Jerome M. Marcus Attorney for Amici Curiae ii USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 4 of 39 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. iv INTEREST OF AMICI CURIAE .............................................................................1 ARGUMENT ............................................................................................................2 I. CONGRESS HAS GRANTED TO THE ATTORNEY GENERAL AND HIS SUBORDINATES THE SOLE RIGHT TO ENFORCE FEDERAL CRIMINAL LAW ............................................................ 2 II. THE HISTORY OF THE ETHICS IN GOVERNMENT ACT PROVISIONS RELATING TO THE APPOINTMENT OF INDEPENDENT COUNSEL SHOWS THAT CONGRESS EXPLICITLY CHOSE TO REMOVE THE COURTS FROM ANY INVOLVEMENT IN THE CONDUCT OF FEDERAL CRIMINAL CASES, AND THAT CHOICE MUST BE RESPECTED BY THE COURTS ...................................................... 4 III. THE LAW OF THE SEPARATION OF POWERS DICTATES CLEARLY THAT THE TRIAL COURT HAS SET DOWN UPON THE WRONG PATH.............................................................. 7 IV. HISTORY REVEALS THE GRAVE DANGERS OF A COURT’S ABANDONING NEUTRALITY TO PRESS FOR CONVICTION .................................................................................. 10 CONCLUSION .......................................................................................................12 iii USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 5 of 39 TABLE OF AUTHORITIES CASES: In re Olson, 818 F.2d 34 (D.C. Cir. 1987) ....................................................................................4 Nixon v. Administrator of General Services, 433 U.S. 425 (1977) ............................................................................................. 3, 4 United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) ............................................................................. 8, 9 United States v. Cowan, 524 F.2d 504 (5th Cir. 1975)..................................................................... 8, 9, 10, 12 United States v. Hamm, 659 F.2d 624 (5th Cir. Unit A, 1981) ................................................................. 8, 10 United States v. Haldeman, 502 F.2d 375 (D.C. Cir. 1974) ................................................................................11 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ..................................................................................................2 CONSTITUTIONAL PROVISIONS AND STATUTES: U.S. Const., Art. II ....................................................................................................4 Ethics in Government Act, Title VI, Pub. L. 95-521 ........................................... 5, 7 Judiciary Act of 1789 (ch. 20, sec. 35, 1 Stat. 73, 92-93) ........................................2 The Act to Establish the Department of Justice (1870) (ch. 150, 16 Stat. 162) ...............................................................................................2 28 U.S.C. § 501 .........................................................................................................2 28 U.S.C. § 510 .........................................................................................................3 iv USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 6 of 39 28 U.S.C. § 515 .........................................................................................................3 28 U.S.C. § 516 .........................................................................................................3 LEGISLATIVE MATERIALS: S. Hrg. 106-131, Feb. 24, Mar. 3, 17, 24, and Apr. 14, 1999, available at https://www.govinfo.gov/content/pkg/CHRG-106shrg56376/html/CHRG106shrg56376.htm.....................................................................................................5 v USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 7 of 39 INTEREST OF AMICI CURIAE Amici are eleven Members of the U.S. House of Representatives: Congressman Louie Gohmert, Congressman Andy Biggs, Congressman Mike Johnson, Congressman Bill Flores, Congressman Jody Hice, Congressman Paul Gosar, Congressman Ted Budd, Congressman Andy Harris, Congressman Ron Wright, Congressman Ralph Norman and Congressman W. Gregory Steube. Amici are Members of Congress responsible, under Article I of the Constitution, for enacting legislation authorizing the Executive Branch in general, and the Department of Justice, in particular, to carry out criminal prosecutions, as well as legislation establishing the lower federal courts and investing them with power under Article III of the Constitution to sit in judgment in such prosecutions. As such, amici have an interest in ensuring that the Executive can and does carry out its duty to prosecute federal crimes and that such enforcement is not impeded by improper judicial action. 1 party’s counsel authored this brief in whole or in part. No party, party’s counsel, or any other person or entity (other than pro bono counsel for amici) contributed money that was intended to fund preparing or submitting this brief. Counsel for amici certify that a separate brief is necessary in order to present the unique perspective of amici as Members of Congress. Counsel for amici further certify that they inquired whether counsel for Petitioner, and for the government, would consent to the filing of this brief; that Petitioner took no position, but that amici had not received any response to that inquiry from the government by the time of preparation for filing; and that Respondent (the district court) neither opposes nor consents to the filing of briefs by amici. Amici have moved for this Court’s leave to file this brief. 1 1 No 1 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 8 of 39 ARGUMENT I. CONGRESS HAS GRANTED TO THE ATTORNEY GENERAL AND HIS SUBORDINATES THE SOLE RIGHT TO ENFORCE FEDERAL CRIMINAL LAW Justice Jackson’s famous Youngstown concurrence teaches that the powers of the Executive Branch are at their zenith when the Constitution’s grant of authority in Article II is seconded by statutes explicitly vesting power and authority in the Executive. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-637 (1952). That is emphatically the case here with respect to the power of the Executive Branch in general, and the Justice Department in particular under the direction of the Attorney General, to have the exclusive right and duty to exercise prosecutorial discretion and to control the prosecution of the case against this defendant. The Office of the Attorney General was created by the Judiciary Act of 1789 (ch. 20, sec. 35, 1 Stat. 73, 92-93). The Act to Establish the Department of Justice (hereinafter “DOJ Act”), enacted in 1870, (ch. 150, 16 Stat. 162), created that Department as "an executive department of the government of the United States" with the Attorney General as its head. 28 U.S.C. §501. The Act explicitly vests in the Attorney General the exclusive power to initiate criminal cases: The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and 2 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 9 of 39 proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. 28 U.S.C. §515. Section 516, entitled Conduct of Litigation Reserved to Justice Department directs: the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. In Section 510, the Act further authorizes the Attorney General to delegate this power to any subordinate: The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. These provisions create a simple, clearly defined set of responsibilities – an allocation of powers that is completely consistent with the allocation made by the Constitution itself, which directs in Article II that the President alone is charged with the duty to “take care that the laws are faithfully executed.” As the Supreme Court instructed in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), the issue, when any transgression is suspected of the rule barring interference with Article II powers, is “whether a challenged rule ‘prevents the Executive Branch from accomplishing its constitutionally assigned functions.’" 433 U.S. at 443 (citing United States v. Nixon, 418 U.S. at 711-712). If 3 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 10 of 39 the statutes set forth above are to be acknowledged at all, it is apparent that what the trial court has attempted to do here is exactly what the Supreme Court in Nixon v. Administrator said may not be done. Indeed, the trial court’s clearly stated purpose was precisely to prevent the Executive Branch from exercising prosecutorial discretion. By calling for briefing on whether the court should acquiesce in the Government’s decision to dismiss the indictment in this case, or instead choose some other course opposed by the Attorney General, the trial court revealed clearly its intention to substitute its own judgment for the prosecutor’s on whether such dismissal should take place. That is the dictionary definition of “prevent[ing] the Executive Branch from accomplishing” the function assigned, exclusively to the Justice Department, by Congress. II. THE HISTORY OF THE ETHICS IN GOVERNMENT ACT PROVISIONS RELATING TO THE APPOINTMENT OF INDEPENDENT COUNSEL SHOWS THAT CONGRESS EXPLICITLY CHOSE TO REMOVE THE COURTS FROM ANY INVOLVEMENT IN THE CONDUCT OF FEDERAL CRIMINAL CASES, AND THAT CHOICE MUST BE RESPECTED BY THE COURTS For the vast majority of U.S. history, federal criminal prosecutions were initiated and maintained by and at the discretion of the Department of Justice, pursuant to the Executive’s enforcement powers under Article II of the U.S. Constitution. See U.S. Const., Art. II; In re Olson, 818 F.2d 34, 41–43 (D.C. Cir. 1987). The statutory provisions set out above were the only ones governing control 4 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 11 of 39 over the prosecution of federal crimes, even those allegedly committed by highranking executive branch officials. Any deviations from this system were accomplished by Executive Order or other unilateral, and temporary, executive action. In 1978, however, in the wake of the Watergate scandal, Congress tried something new. In Title VI of the Ethics in Government Act, Congress created a mechanism whereby an “independent counsel” could be appointed, upon the request of the Attorney General, by a panel of judges known as the Special Division. See Pub.L. 95-521, amending Title 28 of the U.S. Code. But as the expiration date on the independent counsel provisions of the Act drew near in 1999, it became clear—to a bipartisan assemblage of those tasked with making the laws of this country as well as those tasked with enforcing them—that the Special Division / Independent Counsel framework was unworkable. In hearings before the Senate Committee on Governmental Affairs on the Future of the Independent Counsel Act,2 the legislators themselves were clear:  “[T]his Congress, on a bipartisan basis, cannot believe that this law can be repaired. It is fundamentally, institutionally flawed.” Statement of Sen. Torricelli (D-N.J.). S. Hrg. 106-131, Feb. 24, Mar. 3, 17, 24, and Apr. 14, 1999, available at https://www.govinfo.gov/content/pkg/CHRG-106shrg56376/html/CHRG106shrg56376.htm. 2 5 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 12 of 39  “I made a mistake. Four years ago, I voted to reauthorize this law. A number of my Republican colleagues came to me and said that there had been excessive efforts made under this law that cannot be justified. I thought they overstated the case. They did not. I sit here today readily acknowledging to the Chairman and other Members of the panel that I made a mistake in that vote.” Sen. Durbin (D-IL).  “[I]t is my firm view now, Mr. Chairman, that the time has come to make midcourse corrections. My own view, to summarize the statement that I prepared in the interest of time, my own view is that the act ought to expire.” Hon. Howard H. Baker, Jr., (former Senate Majority Leader, R-TN). In remarks before the House Judiciary Subcommittee in March of 1999, thenDeputy Attorney General Eric Holder echoed the sentiments above: “it takes a closeup view of the operation of the Independent Counsel Act to understand that it has serious flaws. The Department of Justice has reluctantly come to the conclusion that the structural flaws we have identified here cannot be fixed. . . . “[t]he Act was supposed to increase trust in our government; unfortunately, it has diminished it.”3 Independent Counsel Kenneth Starr and Attorney General Janet Reno together “led the way in arguing that the law should be allowed to lapse.”4 Prepared Remarks for Deputy Attorney General Eric Holder, House Judiciary Subcommittee (Mar. 2, 1999, 2:00 P.M.), available at https://www.justice.gov/archive/dag/testimony/ictestimonydag.htm (quoting article in the public press by Robert Bork). 3 4 https://www.washingtonpost.com/wpsrv/politics/special/counsels/stories/counsel06 3099.htm 6 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 13 of 39 And so Congress decided. The legislature thus made a well-documented, bipartisan judgment to reject division of the power to prosecute, and the investment of part of that power in the courts – through the Ethics in Government Act provision directing judicial appointment of a Special Prosecutor upon motion of the Attorney General. Congress has instead chosen to return to the regime set forth in the Act to Establish the Department of Justice, which vests exclusive power in the Attorney General to control all criminal cases, including this one. III. THE LAW OF THE SEPARATION OF POWERS DICTATES CLEARLY THAT THE TRIAL COURT HAS SET DOWN UPON THE WRONG PATH Because the basic separation of powers principles are clear, and are addressed in the brief submitted on behalf of General Flynn, we believe it will be helpful to this Court to address the submission of The Watergate Prosecutors, who have chosen to file an amicus brief of their own. That brief marshals not even one case doing what those amici ask this Court to do -- deny a motion to withdraw a guilty plea when the government consents to that motion. On the contrary: the actual result in all of the Watergate Prosecutors’ cases on point are the reverse of what they ask this Court to do, and instead exactly what the United States seeks here – reversal of a trial court’s refusal to acquiesce in the prosecutor’s decision to withdraw an indictment after a finding of guilt. 7 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 14 of 39 Thus, for example, in United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973), this Court reversed a trial court’s rejection of the prosecutor’s request that an indictment be dismissed -- after conviction – so that the defendant could plead to a lesser charge. And in United States v. Hamm, 659 F.2d 624 (5th Cir. Unit A, 1981)(en banc), the Fifth Circuit reversed a trial court’s rejection of a plea agreement, holding that examination of the prosecution’s basis for proceeding as it did was limited to checking whether the prosecutor “has accepted a bribe or because he desires to attend a social event instead of attend upon the court in the trial of the case or because he personally dislikes the victim of the crime.” 659 F.2d at 630. The Watergate prosecutors have left uncited another decision from the Fifth Circuit which is perhaps more relevant. In United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), a trial judge denied a Rule 48(a) motion to withdraw a guilty plea in which the government had joined. Instead, the trial judge appointed an amicus to attack the government’s position in much the same way that the Watergate Prosecutors do here. Once in place, that court-appointed lawyer “impugn[ed] the good faith of the government[‘s]” decision to agree with the withdrawal motion id. at 513, suggesting it had been reached for nefarious reasons. The Executive Branch prosecutors opposed this effort, and when the trial judge rejected their view, they appealed to the Fifth Circuit. In an opinion that states all of the same separation of powers principles that drove the results in Hamm and 8 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 15 of 39 Ammidror, the Fifth Circuit agreed with the Executive Branch prosecutors, overruled the trial judge, and allowed withdrawal of the guilty plea and dismissal of the indictment. In that case, however, the prosecutors whose judgment was being questioned were the very Watergate Prosecutors who have taken it upon themselves to appear before this Court as amici. The court-appointed lawyer who opposed them had argued that their decision should not be respected by the courts because it “was calculated to facilitate the surreptitious performance of the plea agreement negotiated one month earlier between [defendant] and the Watergate Special Prosecution Force, and thus dispense with the trial of the Texas case.” Id. at 513514. Cowan re-emphasizes something that in our day should be, if anything, even more obvious now than it was then: the courts simply cannot put themselves in the position of declaring that some prosecutors are good, and should be trusted, while others are bad, so their prosecutorial judgments will be second-guessed. Judge Hill, the trial judge in the Cowan case, did not trust the good faith of the Watergate Prosecutors there before him, and who are now before this Court as amici. He therefore was not prepared to respect their decision that the United States would agree with the defendant that the defendant’s plea should be withdrawn and his 9 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 16 of 39 indictment dismissed. The Fifth Circuit instructs us that that is the wrong calculation to make. As Cowan makes clear, a federal judge’s declaration that “these prosecutors are good, and I will trust them, while those prosecutors are bad and cannot be relied upon,” would not just endanger – it would destroy – the credibility of the one branch of government that has a duty of neutrality. For let there be no mistake: when the Watergate Prosecutors’ brief repeatedly describes General Flynn as “politically connected,” Br. at 2, 5, it is not only, or even primarily, him they are attacking. Their actual target is the people to whom he is said to be politically connected: the United States Attorney for the District of Columbia, and the Attorney General of the United States. It is the judgment, and the subjective motivations, of these prosecutors that the Watergate Prosecutors are asking this Court to second-guess. Cowan, and Hamm, and the rest of the cases that the Watergate Prosecutors have cited, make clear that down this road lies the complete politicization of the courts. IV. HISTORY REVEALS THE GRAVE DANGERS OF A COURT’S ABANDONING NEUTRALITY TO PRESS FOR CONVICTION Recently revealed documents regarding the Watergate prosecutions reveal the grave danger posed by the perception that a court has taken sides. The exhibits attached hereto as Exhibit A, taken from National Archives files relating to the 10 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 17 of 39 Watergate Special Counsel, show that a substantial series of ex parte meetings took place during the pendency of the Watergate investigation, between the Watergate Prosecutors and then-Chief Judge Sirica.5 The nature and extent of these meetings was not disclosed at the time.6 An inquiry to Chief Judge Sirica from counsel for one of the Watergate defendants, asking whether such meetings had occurred at all, is also included here as an exhibit. It was left unanswered. Defendants’ request for an evidentiary hearing on, inter alia, the nature of these contacts, was denied. This Court affirmed that denial per curiam without hearing oral argument, over the vigorous dissent of Judge MacKinnon. See United States v. Haldeman, 377 F.Supp. 1312 (D.D.C. 1974), aff’d, 502 F.2d 375 (D.C. Cir. 1974)(MacKinnon, J., dissenting). We call these meetings to this Court’s attention only for one purpose: because of the Watergate Prosecutors’ decision not to disclose them (and indeed to oppose disclosure) when the meetings took place and when the cases they concerned were still active. They made that decision, there can be no doubt, because public awareness that the court that would sit in judgment had met privately with one side These materials were first brought to light in G. Shepard, The Real Watergate Scandal (Washington, D.C. 2015). 5 Leon Jaworski’s memoir of his work as the Special Prosecutor, The Right and the Power (New York, 1976), references one of these meetings, which took place before a crucial hearing, but says only that it took place to “go over the [hearing’s] agenda.” See id. at 103. 6 11 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 18 of 39 to discuss the assignment of particular judges to particular cases, as well as other important substantive decisions, would have gravely undermined public confidence in the court’s impartiality. And upon that impartiality depended – and still depends – the court’s legitimacy. If that is lost, all is lost. Judge Sullivan’s orders in this case gravely endanger at least the public appearance of his impartiality. Like Federal District Judge Hill in the Cowan case discussed above, Judge Sullivan has made clear that he does not agree with or respect the judgment of the prosecutors before him that a case should be ended. Like Judge Hill, Judge Sullivan has appointed an amicus to attack that decision – something that Judge Sullivan’s appointee as amicus had already done publicly before he was appointed as Judge Sullivan’s amicus-- and to present to Judge Sullivan a different course and authority allowing him to pursue that course. CONCLUSION The Watergate Prosecutors’ own actions as prosecutors in the Cowan case, and as otherwise discussed above, reflect their insistence that prosecutorial judgments must be respected by the courts. It reflects as well their own acute awareness that no court adjudicating any criminal trial – much less the trial of a high political profile defendant – can be perceived as partial. The judge trying such a case must appear to be, and actually be, neutral. 12 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 19 of 39 Judge Sullivan’s orders in this case, like his public statements (such as his inquiry as to why General Flynn was not charged with “treason”) eliminate, at a minimum, the appearance of his impartiality. Those orders should be reversed. This matter should be assigned to a trial court judge who is, and who appears to be, a neutral decisor between the parties to this case. When the Watergate Defendants appealed to this Court from Judge Sirica’s order refusing to allow investigation into, or full disclosure of, the nature of his contact with the prosecution, the American Civil Liberties Union appeared as an amicus curiae in this Court in support of Defendants’ effort to find out what had actually happened. The conclusion of that brief, attached hereto as Exhibit B, states matters accurately: Particularly where the subject matter of the prosecution involves alleged unlawful conduct by high ranking government officials in the course of their duties, the judiciary should exercise meticulous care to assure that the integrity of the judicial process is not itself brought into question. Respectfully submitted, Jerome M. Marcus Counsel of Record 1121 N. Bethlehem Pike, Suite 60-242 Spring House, PA 19477 (215) 885-2250 jmarcus@marcusauerbach.com Counsel to Amici Members of the United States House of Representatives Dated: June 1, 2020 13 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 20 of 39 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed R. App. P. 17(d)(2)(A) because it contains 2,941 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e)(1). This brief complies with the typeface and type style requirements of Fed. R. App. P. 27(d)(1)(E) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times Roman type. Respectfully submitted, Jerome M. Marcus Counsel of Record 1121 N. Bethlehem Pike, Suite 60-242 Spring House, PA 19477 (215) 885-2250 jmarcus@marcusauerbach.com Counsel to Amici Members of the United States House of Representatives Dated: June 1, 2020 14 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 21 of 39 EXHIBIT A USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 IVATE RG,,T E S P EC IAL PROSEC UTION FORCE Un ited St :~ :el Depa rt me nt of -'"'tite 14 25 K Street , N.W. W;•shingto n, D.C. 20005 Decef'tb er 27, 1 9 7 3 PI\.L : sex Honorable John J. Sirica Chief Judge United States District Court for the District of Columbia \vashington, D. c. 20001 Dear Chief Judge Sirica: lihen Nessrs. Ruth, Lacovara, Ben-Veniste and I met Vlith you and Judge Gesell at your reques t on Friday, December 14, you suggeste d that i t 1\' ould be helpful if t>Te could provide you 'tTith some sense of t he caseload that 1.;e lvould be generat J.ng for the Cour t over the next severa l months. I have reviewed the status of the investigations currently under \vay with my task force leaders, and have put together ~rha ·t I believe is a reasonable projection of the scale of indict ments that may be r e turned b e ttveen th e beginning of the ne\~ year and the end o f April. -- In January and F ebru ary , I for esee the possibility that the grand juries may r et urn three multi-defendant indictments that;. would take approximately a "Yieek each to try. During that time I can calculate approx imately three additional indictments th a t might consume hro "Y!eeks each of trial. Another case might last for three weeks. I also anticipate that, should an indict.rnent b e voted in another area actively under investigation at the present, it would take from four to six \•leeks to try the c ase . And finally, I believe that by the end of January or the beginning of .E'ebruary we may have an indictment in a case that could well take t hree months to try . Looking ahead to Harch and April, I have reason to anticipate two or three indictments that may involve oneHeck trials, one involving a t~IO-Heek trial , a nd another possibly l eading to a three-t·leek trial . Of course, t her e are a number of other matte rs curr ently at the prelimi n ary stages of investigation which migh t bt~ r e ady for indictme n t during 1-tarch a nd t>.pril as v1ell. Added t o the cas e s referred Page 22 of 39 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 .• 2 - to above are a number or relatively straightforward cases that, if not terminated by an agreed upon plea of guilty, should take no more than a day or two to try . I am sure you can appreciate that the estimates I have given are extremely rough. It is, of course, possible that the grand jury \'Till elect not to return indictments in some of these areas. In addition, t~illingness by potential defendants to agree to plead guilty before or after indictment may substantially reduce the number or len.gth of the trials. It . is my opinion, hot-rever, that the estimates I have given, t~hile perhaps erring on the side of being overly inclusive, will provide you '1-Tith information that you may find helpful in planning for the assignment ·of cases during the early part of the new year. 'No doubt in making your mm assessment of caseload you will consider the time that \vill be consumed bett.-een ind.i ctments and trials in these cases by pre-trial motions, particularly ~~tions for continuances or transfers based on pre-trial publicity, including the report of the Ervin Committee which is scheduled to be released in the Spring. If further information or detail would be helpful, I "rould be happy to respond to any questions you may have. Let me take this opportunity to express again my deepest appreciation for the extremely careful and responsible way you have been handling these matters and for the courtesies you have extended to me and to my staff. Sincerely, LEON JAWORSKI Special Prosecutor cc: l'tr. Jaworski Hr. Ruth !>'a-. Lacovara Task Force Leaders Files Page 23 of 39 USCA Case #20-5143 Document #1845190 WATERGATE SPECIAL PROSECUTION FORCE Filed: 06/01/2020 OEPARTME:"iT Of Page 24 of 39 J lSfi CE Memorandum DATE: January 21, 1974 TO Leon Jaworski Special Prosecutor£ fROM Philip A. Lacovara Counsel to the Spe · 1 Prosecutor Sl.l'6JEC1': Presentment by !'Ia terga te Grand Jury Concerning the Pre·s~a·ent As part of our con s ideration o f the most appropriate wa y of dealing with ev i dence tending to implicate the President i n the Watergate cover-up, we have d i scuss ed the po s sibility of advising the grand jury that i t may return a presentment setting forth its vie~1s of the President's complicity even though it might be determined as a matter of la\4 or policy that the President should not be indicted. Peter Kreindler was asked to prepare a memorandum on this subject and he has reached the conclu.sion, reflected in the attached memorandum, that submission of such a presentment by the grand jury would be constitutional. I have been discussing this subject with him since the .beginning of his research and am familiat· with the authorities. I agree with his analysis and conclusions in all respects. If you agree that presentment in lieu of either indictment or non-action is the proper mode to pursue, there remains the question of procedure . Specifically, ·t he relative rarit~' with .which presentments a.re filed in federal courts makes it desirable to advise Chief · Judge Sirica in advance of this proposed course. It would be most unfortunate, for example, for the grand jury to return a presentment without fore1.;arning and then have the judge summarily refuse to receive it because of his lack of awareness of the basis for such a submission. However, it is also questionable whether we should discuss this procedure with the chief judge before t .he grand jury, whose decision 1.;ould be invo1.ved, has had an opportunity to consider this possible course . Yet there 1.;ould be some risk in discussing such an approach with the grand jury, and perhaps planting a seed that could not be unsown, before the judge has a t least tenta tively indicated t hat he wo uld be prepared to accep t such a presentment. USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 - 2 - In light of all of the foregoing factors, I recommend the following course: l. That you decide formally and as quickly as possible wha.t advice you want given to the grand jury in your capacity as its counsel on the questions of (a) the President's indictability as a matter of law, (b) the policy factors concerning indictment of an incumbent President, and (c) the propriety of the grand jury's submission of a presentment naming the President, eit.h er in open court or under seal, with a request that it be forwarded to the House Committee on the Judiciary . My own recommendation is that the grand jury be told (a) we believe that the President can constitutionally be indicted for the crime of obstruction of justice but that the question is subject to considerable doubt, and therefore (b), in light of the severe dislocations that would immediately flow from the naming of a sitting President as a criminal defendant, it would be preferable to leave formal proceedings to the House of Representatives. With regard to (c) the grand jury should be advised that it may return a presentm.c nt, which states its conclusions based on the evidence it has heard but l~hich does not initiate a criminal proceeding, and I would propose that the presentment be submitted under seal to the chief judge, with a request that it be forwarded to the House Judiciary Committee after counsel for the President have been given an opportunity to submit any objections, either on the law or the facts, that they may have. 2. After you make the foregoing decisions, I recommend that you or I or both appear before the grand jury, at the conclusion of the presentation of the tapes, to advise them of these determinations. They should ·candidly be told that it is not certain how the court will respond to the submission of a presentment but should be advised that this matter will be discussed with the chief judge if the grand jury is inclined to return a presentment involving the President. 3, If the grand jury indicates its tendency toward returning a presentment, ,,,;e should schedule a conference with Chief Judge Sirica to apprise him in advance of this possible development. I would be prepared to submit a memorandum of law to him at such a meeting, if he indicated an interest in receiving it. , Page 25 of 39 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 - 3 - 4. At any such meeting we should recoiT'lllend to Judge S:i.rica that the presentment be received by hirn under seal, with disclosure only of the fact that the grand jury has made a submission to him, and that the ~~te House be given ten days to review the presentment and to make objections to its filing and t .r ansmission. Attachment cc: Mr. Ruth (w/attachment} Mr. Kreindler (w/o attachment) Mr. Ben-Veniste (w/o attachment) Page 26 of 39 USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 27 of 39 LJ/flC - Feb· """' uy 12/1974 <"'L~ d'v ( /\,,...-tv ( v·V"u· tvJ.I'-'yv?... _;:...&- CONFIDENTIAL On Honday, February 11, I met with the Judge at which time several matters room. \~ere covered as we sat alone in the jury He again indicated that provided the indictments came down in time he wou~d take the Watergate Case, stating that he had been urged to do so by any number of Judges from across the nation the most recent of them being those who were in attendance with him at a meeting in Atlanta. He expressed the opinion that these indictments should be returned as soon as possible. He also stated that henceforth all guilty pleas would be taken by him. We ta.ilORD, B'ART JO V. MORG4.N, .JA . I"'R"'Nk H. St'ftiC.I"·-11!''WIL.J..V._,.. C. RO\..L..OW CKAIItt..-CS .1~ STEI.t..C JOkH J. CA.Ih400Y, "'" · JAW C.$ t:'O WAAD A8t..AA'O 1 CARMODY 8c 'WILSON 6111 l'lf'TEitNYH ~TREET, NORTHWEST WASHINGTON, 0 , C., eOOOI5 Page 34 of 39 MA~YI,...AHO Or,.ICC: ? ... Ot WtSCO N SIH AV tNUE. OC:n·4C.!!SCA.. '-t,i._,.'rt..ANO :rOOtiniL this m'srrr<-:,r:anclun. }fglgtenL IIav:i-n<; r.ci.rc1 t--he lloj-nts; arlii Aulhoriti.cs atril Joj-nt' It{J:i.cLtrvi.'L i:ilc:cl i:y fl^{-'-'1'ttrantrr :i,n s'.tp1ior-t r-.rf tlic-i-:: l'iot-.i o;r USCA Case #20-5143 1 Document #1845190 Filed: 06/01/2020 Page 37 of 39 to Disclnalify, rve file this memorandum to-support de_ fendantst rights to an evid.entiar:y hearitrg on their motion. rf theyl pro'e the assertions upor-I vririch their motior-r is grou'ded ue berieve tire motion to disgualify ; should be granl-cd. The disqual,rfication pror.,isj.ons of l.B U.S.C., sections l-44 and 45s are manclatory upon a j*c1ge wiro has I "a personal bias or prejudice . in favor of any adve::se pa::tyr" "'a substantial- i..terestr,, has ,,been of counsel" ol: "has been a rnater:iar rvitnessu itr counection vrith any pr.c:eecling before hin. The statutes rest upon l a fundanrcntal pri-nciple of proceclurar clr.re proccss frequently a1>plied,b), the Supreme Court: "No man is per_ mittecl to try.l""" rvhere he r:as an interest in the out* i come. " ftr r:e ] ]r:gg.\!sgn, 349 U. S. t-33 , 136 (1955 ) . The stringl.rrcv of tij.s ruJ-e ,,may sonetines bar- tr-j,al hrr -..t1 .rJ l ju-dges vrho J:ave no actual bias a.nd who noukl t1o thei.r: ; very bes;t i-o iveigh tire scarcs of jusi-ice eguarly betrveen contendi.ng pairtie,s. i3ut to per:fo:m ii:s liigh funcL-ion r I i,n the I)csL rvi:1' : t -i nstice must sittisfy thi: a1:i>r,-ar-ancc of v. _V:ff rc{__s_t_{*, 3/iB u.S. J-I." rd., justj.cc.' lift!-! ;-a-t 136. sec alEro [:orxii]o'rrcalth coa.ti*qs corj?q::afon rr. cg"Ujf c,ff!9_!_!"i?lt9l.!.)1*!exp9xX, 393 U.s. 7.4s, t4B (196s) ("any- t::i,buiiiil- porinittecl by J.art i-o i,-r1, citscs ol: coni:roversics rrot- only must be unbiased, but al-so nrr.rst- avoid I the appeariir^rce'of b.i,i:.s") ; cf . (]e27). Thei !gr:]g_)l v. Q.]31o, 273 U.S, 5l 0 :nar:datory' p::clr,'i.sions of tire clis<;u.a1.j.ficatj.on st:atutes I:erve de:err frequentll, yo"onniz,ecl by lor..rer fccleral courl*s. fn \clle5:!l1 \'. Unitrrd_,St.;rtcs.r, 249 F.Zd 737, 74I I -2- USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 38 of 39 (5th Cir. 1957), cert. denicd, 356 U.s. 919 (1958), the statute rras cotrstrued to require disqualification if a judge has "a prior knowlcclge of the facts or plior interest in an issue arising out of t-hem. " Similarly, in Uni.Led s!q!eF_ v. Vasrljdi, 160 r.2d 631 , 632 (3rd Cir. 1947), it vras held that a disL::ict judqe lvho r^,';rs a dj-strict ai:torney v;hen a crirninal d.ofendant vras tried and convicted in his ju::isdicl,ion shoul.d have disqualified himself from a moli-on to vacate tl're sentence. The Courl of Appeals pointed out that. " [i]n reaching this cor-rcl-usion we desi::e to makc it abunclantly clear that we entcrtairr no doubt of thc fa.irncss or impartiality of Judge." Id. at 632. See al-so Unil.cd slalee v. I:!al1el, BB F.Supp. 1007 (D. l'Iai:re 1950) (former U;,i'uccj SLa-Les iLtorney rrusi: ri-isclualify himselr as juctge the District in any case ar:j.sing duri-tig hi.s tenur:e eis Uniled S{:ates Attorircl') . If tjre al. l.oclerLions put fonirarcl b1' de'-endauts; as tlrc L.,asis for their rtotion .u:e provcd, r.re l:elierrc tirc mo't:lon shoulcl be g::;rnterl . I)articul.arly r.;)rere the subj ect matter of j-ho 1:rosccui:iotr irr,,,olr,es al-fcgecl unlavful concJ.uct by hj.gh--ranlcing governinelrL of ficials j.rr tlre cou:rse. of the:ir cluties, tlre jucliciary should e>;erc-ise meticulous: care to assure that the integrity of tire judiciarl process is j LseLf rrot brought into clucstion. Rcspectf [.\ ul- ,,,, -l-r,' Subni ttecl t (, \ , '1.(.-\' I'tELVrhr 1,,. I'rur,F lune::i. r--.an Ci.r'i, 22 L-as;t 40t.lt I Libcrties Strcrc:t: Nctv Yol:Jr, l'Jr,:w Yorll l-001.6 Uni.otr USCA Case #20-5143 Document #1845190 Filed: 06/01/2020 Page 39 of 39 CERTIFICATE OF SERVICE I hereby certify that on June 1, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Respectfully submitted, Jerome M. Marcus Counsel of Record 1121 N. Bethlehem Pike, Suite 60-242 Spring House, PA 19477 (215) 885-2250 jmarcus@marcusauerbach.com Counsel to Amici Members of the United States House of Representatives 2