IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Criminal Section
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UNITED STATES OF AMERICA, )
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v. ) Crim. No. 99-9-A
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JULIE HIATT STEELE, )
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Defendants. )
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MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
INDICTMENT UNDER THE FIRST AMENDMENT
The First Amendment requires that this indictment be dismissed for three reasons. First, the indictment on its face seeks to punish protected speech and chills others who may seek to engage in similar protected acts. Second, the obstruction of justice statute is vague and overbroad as applied to the speech in the indictment, thus discouraging others who may wish to engage in related protected activities. Third, the indictment itself and the statements and actions of the Office of the Independent Counsel ("OIC") surrounding the indictment reveal that these charges improperly and unconstitutionally were motivated by the OIC’s desire to suppress and punish Ms. Steele because she exercised her rights to free speech and to petition the government, including her right to criticize and disagree with the OIC.
Because every accusation in the indictment is directly or indirectly aimed at stopping and punishing acts of free political speech and petition, no citizen today is free to exercise his or her First Amendment rights, causing all to steer far clear of protected speech.
The factual question which led to this indictment is a simple one: did Kathleen Willey tell Ms. Steele on the night of November 29, 1993, or soon thereafter, that the President had groped Willey and that Willey was upset about the "grope." Since Newsweek magazine published an article which thrust Ms. Steele into the public eye over her strenuous objections, Ms. Steele has been forced publicly to defend herself against accusations by Willey and the OIC. Accordingly, since her name appeared in that article, Ms. Steele has spoken many times about Willey, the OIC and the alleged "grope." On every occasion, whether it be in a public forum (on national television), or a private one (in a conversation with a friend), Ms. Steele has consistently told the same story: Willey did not tell Ms. Steele that the President "groped" Willey or that Willey was upset about it.
As the indictment alleges, and we agree, Ms. Steele has told her story to reporters. Ms. Steele has told her story to friends. Ms. Steele has signed an affidavit which confirms her story which was never filed in any proceeding anywhere. Finally, Ms. Steele has repeated her already well-publicized story, a story about which the OIC was extremely aware, to FBI agents and the grand jury. Incredibly, she is now charged with three counts of obstruction of justice relating to three different proceedings but based on precisely the same core speech, that is, her repetition in one forum or another of this same story.
On March 10, 1998, Willey testified before a District of Columbia grand jury and on June 11, 1998 Ms. Steele, assured by the OIC that she was neither a subject nor a target, testified before that same grand jury. The OIC maintains that it first focused on Ms. Steele because "Ms. Willey's credibility obviously was important in the scheme of the grand jury investigation [and] Julie Hiatt Steele, ... quite naturally emerged as a witness regarding Ms. Willey's credibility...." Opposition to Motion to Dismiss or Transfer at 7. Evidence in the OIC's possession strongly suggested that Willey was a woman who had serious problems telling the truth. That evidence included not only Willey's contradictory public and private statements and testimony, but also appears in notes made by the FBI during Ms. Steele's interview. There, Ms. Steele confirmed her publicly-available story; she also indicated that Willey had asked her to lie on many other occasions. See FBI Report No. 29D-OIC-LR-35063, dated 3/11/98) (attached at Exhibit 1). And, Linda Tripp has testified several times that Willey has lied about the "grope."
Yet Ms. Steele was repeatedly asked questions about her Newsweek interview during her grand jury appearance. In fact, although she had been a close friend of Willey's for twenty years, Ms. Steele was not asked even one question about Willey's shaky credibility. See November 4, 1998 letter from Ms. Luque to the OIC at 3 (attached as Exhibit 2). See Sealed Exhibit. This dramatic discrepancy in the OIC's stated intention--to assess Willey's credibility-- and its actual behavior--attacking Ms. Steele's credibility--demonstrates the indictment's improper purpose: the OIC never considered the possibility that Ms. Steele might be telling the truth. They never gave her a chance. Instead, they chose Willey for the OIC poster girl, because her story, no matter how full of holes, could harm the president while Ms. Steele's, no matter how substantiated, could help the President. Ms. Steele was a nuisance to be gotten rid of, a critic to be silenced, a thorn in the side of the OIC which had and still has as its goal the destruction of a twice-elected incredibly popular President of the United States.
Ms. Steele was excused on June 1, 1998 after a full day of testifying not about Willey. That same day Ms. Steele filed a civil suit against Newsweek because it had first thrust her and her story into the public eye, against her expressed and adamant wishes, and because the Newsweek story was inaccurate in many regards. On August 7, 1998, Ms. Steele made her ill-fated appearance on the Larry King Live show, accompanied by her attorney in the suit against Newsweek. There she told her story confirming, again, that Willey never told her about the "grope" on the night it allegedly happened.
Ms. Steele and her attorney made negative comments about Willey's credibility and expressed concerns about the methods and motives of the OIC. A Newsweek representative also appeared on the show and calls were taken by the host from around the country about the matters of public concern under discussion, that is, the credibility of the OIC and its witnesses, Ms. Steele's tangential role, and the truth about the political scandal in which Ms. Steele suddenly found herself arrested.
Within four days of that television appearance, Ms. Steele was subpoenaed to appear in Alexandria before a different grand jury than the one before which she and Willey had testified and she was required to produce numerous documents. Pursuant to the subpoena and an order of immunity, Ms. Steele produced to that Virginia grand jury the Larry King Live transcript and the transcript of her grand jury appearance in D.C. During that appearance, the OIC badgered her repeatedly despite assertions of her Fifth Amendment right, and asked questions about the Larry King Live interview, an alleged National Enquirer interview, and incredibly, Willey's pet's kennel. See Grand Jury testimony of Julie Hiatt Steel, E.D. Va., dated August 18, 1998 (hereinafter "Va. Transcript") (attached at Exhibit "4").
On September 1, 1998, Ms. Steele’s attorney, Nancy Luque, wrote the Attorney General and informed her that the OIC had misled Ms. Steele before her first grand jury appearance by claiming she was a "witness," not a target or a subject, when she was really at least a subject, thus inducing Ms. Steele not to assert her Fifth Amendment right. In that same letter, Ms. Luque complained that Ms. Steele's accountant and tax records had been subpoenaed, and asked whether the OIC even had jurisdiction to investigate Ms. Steele. The OIC's displeasure and irritation with Ms. Steele and her counsel for this protected act of petition was demonstrated one month later, when in response to Ms. Luque's objection to one of its many improper, unethical procedures, the OIC staff taunted counsel, sarcastically wondering "Why don't you complain to the Attorney General." See Luque letter dated Nov. 4, 1998 at 5, Exhibit 2.
On November 3, 1998 a scathing editorial critical of the OIC's actions in regard to Ms. Steele appeared on the New York Times editorial page. Anthony Lewis, Is This America?, N.Y. Times, Nov. 3, 1998 at A31 (attached at Exhibit "5"). On November 4th, Ms. Steele's attorney, Ms. Luque, wrote the Attorney General and the Independent Counsel ("IC") a seven page letter, citing numerous serious ethical violations and other prosecutorial misconduct by the OIC, including those raised in her earlier letter. That letter closed with the plea that the matter be referred to the Department of Justice Office of Professional Responsibility.
Ms. Luque emphasized in the letter that the OIC had unjustifiably embarked on an investigation "of every aspect of Ms. Steele’s personal life, apparently because they choose to believe Ms. Willey" (see Exhibit 2, at 2). Incredibly, Ms. Steele's phone records, bank records, tax accountant, tax returns, former counsel and his records as well as her credit records had been subpoenaed and scrutinized. Former friends from all over the country and members of her family, including her daughter and her brother, had been subpoenaed, an extreme invasion of privacy against a witness with no personal knowledge of any crime.
Ms. Luque pointed out that Ms. Steele was never asked one question about Willey’s credibility in the grand jury indicating, again, that the OIC had in fact chosen before Ms. Steele ever appeared to believe Willey regardless of Willey's numerous, contradictory versions of the events surrounding the "grope." The letter also stated the obvious, and one of the more troubling results of the OIC's tactics: Questioning Ms. Steele before the second grand jury about the Larry King Live show and other news contacts had chilled and was intended to chill Ms. Steele's exercise of her First Amendment rights (see Exhibit 2 at 5); indeed, the federal agents authorized and working on behalf of the OIC who questioned neighbors about Ms. Steele's appearance on that news show at the very time they spread false rumors about the legality of Ms. Steele's son's adoption was also intended to and did chill Ms. Steele's and others' First Amendment rights. (Id. at 6).
Within four hours of the arrival of this serious, well-documented effort to seek redress from the government arriving at the OIC and the Department of Justice, Ms. Steele was informed she had become a target. The letter from the staff continued: "Based on my numerous years of …experience and based on my conversations with other experienced prosecutors, including those who have dealt with you, these types of personal attacks by defense counsel usually evince a weak factual defense." See Letter from the OIC to Nancy Luque dated Nov. 4, 1998 (attached at Exhibit "6"). Thus in response to the exercise of Ms. Steele's right to petition the government, the OIC resorted to investigating defense counsel, claiming that because of the criticism, the OIC could assume Ms. Steele had violated the law. That the staff viewed the letter as a personal attack reveals how that office sees the world: you are either with them or against them, a disturbing and ultimately unconstitutional world view which has led to Ms. Steele's indictment. She not "with them," thus she's a "criminal who must be silenced."
Further evidence that the OIC is determined to destroy Ms. Steele's credibility and stop her from speaking out can be found in the IC's testimony in Congress. On November 9th, the IC himself expressed his personal displeasure with Ms. Steele's exercise of her First Amendment rights by attacking her credibility on national television during his presentation of the impeachment referral, a referral which has recently failed to garner even a majority of Senate votes, and which had nothing to do with Ms. Steele. Before the House of Representatives and the entire world, the IC lashed out at Ms. Steele. His face visibly reddened, and so angry he was shaking, he told the nation that her claims, summarized above, were without merit or foundation. See Hearing of the House Judiciary Committee, Nov. 19, 1998, excerpts (attached at Exhibit "7") (see also, Julie Hiatt Steele's Pretrial Motion No. 2, Part II-E).
The indictment against Ms. Steele filed on January 7, 1999 is the first of its kind in America. It charges that Ms. Steele obstructed justice when she allegedly made " a number of important false and misleading statements on the Larry King Live show (Indictment at ¶ 28), when she presented the video and transcript of the Larry King Live show to a grand jury under act of production immunity (id. at ¶ 29), and when she affirmed to the grand jury that her statements on Larry King Live were true. Id. at ¶ 31b.
The indictment directly attacks other acts of clearly protected public speech in addition to Ms. Steele's public statements on the Larry King Live show. Ms. Steele's statements to a Newsweek reporter are included as obstructive acts in Count One, as is an alleged interview with the National Enquirer. Indictment at ¶¶ 12, 13, 14, 37. Her reaffirmation of her story to two friends who were not subpoenaed and who already well knew the consistent story Ms. Steele had made public time and again is charged in Counts One through Three. See id. at ¶¶ 32, 33. And, Count One alleges that when Ms. Steele stated "to a number of persons" that "Willey had never told" her "about President Clinton's alleged sexual advances," she obstructed justice. See id. at ¶ 35.
Following the indictment Ms. Steele has been fearful about talking about the facts of this politically charged incident. Thus, when she appeared on the Larry King Live show on January 19, 1999 to briefly respond to the indictment and to thank her supporters she said, "I think it's real scary, and I guess that's one of the reasons I'm uncomfortable, and it's the same reason I'm here, because I think people need to know that. I think that we all need to think about our First Amendment rights . . . I am afraid of being here." See transcript of Larry King Live, at 16 (CNN television broadcast, Jan. 19, 1999) (hereinafter "LKL, 1/19/99") (attached at Exhibit "8"). During that appearance she also thanked members of the public who had offered moral and financial support, as she was and is without resources. Id. at 19.
That the OIC seeks to punish Ms. Steele for exercising her rights and to insure that she does not exercise them ever again is glaringly demonstrated not just by the indictment and the facts summarized above, but by the OIC's disturbing statements since the indictment. It has sought and obtained a "gag" order to stop Ms. Steele from revealing any of the material released in discovery when there is no legitimate basis for such an order. This investigation is over and will soon proceed to trial. How could the release of exculpatory materials pose grave harm to any valid state interest?
In the hearing on the protective order, the OIC openly made clear that its goal was simply to gag Ms. Steele, to stop her from exercising her First Amendment rights of speech and petition, and to assure that she could not embarrass them further. Thus, the OIC stated in open court that it did not want Ms. Steele "wav[ing] around on the Larry King Live show" or "for political purposes" the discovery she rightfully receives in connection with her own criminal trial, information which will come out in the public trial in any event. See Transcript of Hearing on Motions, United States v. Steele, Cr. No. 99-9-A at 4 (E.D. Va. Jan. 29, 1999) (hereinafter "Motions Hearings") (attached at Exhibit "9"). It admitted proudly that its goal was to "prevent her [Ms. Steele] from further disseminating [information] for impermissible purposes." Id. at 5. Clearly, the OIC seeks to determine what Ms. Steele may say and when and where she may say it.
The OIC is obsessed with stopping Ms. Steele from speaking. Even its recent pleadings continue to belittle and ridicule her for her "willingness and eagerness to publicize" material about the OIC and its investigation. See Government's Opposition to Defendant's Motion for Order to Show Cause Why Designated Documents Should Be Subject to Protective Order at 3). The OIC has criticized Ms. Steele for using her own grand jury testimony as an exhibit to her Motion to Dismiss for Lack of Venue and attacked her for exercising her First Amendment right to raise funds for her defense against this unwarranted, politically-motivated oppressive indictment. The OIC critically referred to these protected acts of speech and petition as "wholesale, unnecessary, dumping of documents . . . for no apparent purpose other than to make them public (perhaps her website for pecuniary gain)." Id. at n5.
In another recent filing the OIC again asserted that it does not believe that Ms. Steele should have attached her own grand jury testimony to her motion and concluded that it must "assume that given Defendant's demonstrated desire to publicize this case, it was attached to her motion in aid of that purpose." See Opposition to Motion to Dismiss Indictment or for Transfer, at 4. This accusation is as unfounded as it is gratuitous.
In this fundamentally political proceeding, Ms. Steele, like any citizen, has every right to take any information lawfully in her possession and do with it what she wants. She is free to criticize the OIC, to win public support for herself, and to raise money for her defense. When any prosecutor is allowed to decide what the defense may argue and how it may make its arguments, when any prosecutor gets to determine what is "necessary" and what is "appropriate," when any prosecutor decides who should be allowed to publicize a matter and the extent to which criticism will be permitted, justice in America is the loser. These facts reveal that district court Judge Robertson was right when he called the tactics of this office, in particular this prosecutor, David G. Barger, "scary." See United States v. Hubbell, 111 F. Supp. 2d 25 (D.D.C. 1998).
The above chronology demonstrates what the public, the Congress and the press already know: this is a political investigation motivated by the OIC's overarching interest in removing the President from office. Even those few who do not agree that every action taken by the OIC has been a political one would acknowledge that every act by the OIC or anyone involved in this matter has serious political ramifications. Thus, every time anyone speaks about this matter it can only be categorized as pure political speech. Every statement is interpreted by the public and the press in terms of whether the information is pro or con Clinton or Starr. The indictment is based primarily on political speech, both public and private. As such, it cannot pass constitutional muster.
The Supreme Court has never swayed from the view that public discussion of government activities and other matters of public concern are fully and fundamentally protected acts of free speech. "[T]here is practically universal agreement that a major purpose of that [the First] Amendment was to protect the free discussion of governmental affairs." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838 (1978). "Thus, speech concerning public affairs is more than self-expression; it is the essence of self government’" McDonald v. Smith, 472 US 479, 489 (1985). Nor does it matter whether the speech occurs in a public forum or in the privacy of one's home, for "[t]here is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbors across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States." McDonald, 472 U.S. at 490.
An indispensable corollary to the right to speak freely on matters of public concern is the right to criticize, even condemn, government actions. Without the latter the former would be an empty, meaningless "right." Thus, "speech critical of the exercise of the State’s power lies at the very center of the First Amendment. …[T]he dissemination of information relating to alleged governmental misconduct, … [is] speech which has traditionally been recognized as lying at the core of the First Amendment.’" Gentile v State Bar of Nevada, 501 U.S. 1030, 1034-35 (1991). "Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized." Rosenblatt v. Baer, 383 U.S. 75, 675-76 (1966). Accordingly, where speech "communicated information, expressed opinion, recited grievances, [and] protested claimed abuses" then it is "expression essential ‘to the end that government may be responsive to the will of the people and that changes may be obtained." McDonald, 472 U.S. at 489 n3. Of course, "injury to official reputation is an insufficient reason ‘for repressing speech that would otherwise be free.’" Landmark Communications, Inc., 435 U.S. at 841-42, quoting New York Times Co. v. Sullivan, (citations omitted). Indeed, the dominant purpose of the First Amendment is "to prohibit the widespread practice of governmental suppression of embarrassing information." New York Times Co. v. United States, 403 U.S. 713, 723-24 (1971).
Nor may any governmental entity dictate what an individual says or believes. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943).
Section 1503 (18 U.S.C. 1503) "protect[s] not only the procedures of the criminal system but also the very goal of that system to achieve justice." United States v. Griffin, 589 F.2d 200, 204 (5th Cir. 1979). "[O]ne of the most important laws," it is "designed to protect witnesses in Federal courts and also to prevent a miscarriage of Justice." Id. quoting Samples v. United States (citations omitted). Section 1503 was originally "enacted as the federal criminal contempt statute" (id.); it is derived from the Act of March 2, 1831 (4 Stat. 487) which outlined the contempt jurisdiction of the United States courts. Id. The Act of March 1831 contained two sections, the first provided for punishments of contempts of court, defined as acts which "obstruct the administration of justice", in the presence of the court or "near thereto"; Section 2 of the Act, from which present Section 1503 is derived, prohibited contempts outside the court, acts which "corruptly … obstruct, or impede or endeavor to obstruct or impede, the due administration of justice." Nye v. United States, 313 U.S. 33, 46-47 (1941). Thus the Act of 1831 sought to proscribe contempt within and without the courtroom. See United States v. Essex, 407 F.2d 214, 216-17 (6th Cir. 1969).
Although these provisions are now found in separate statutes, they are aimed at precisely the same end: protecting the administration of justice. Accordingly, courts often rely on interpretations of the sister contempt statute to interpret the reach of the obstruction statute. see e.g., Essex, 407 F.2d 214, n6 (6th Cir. 1969). As no case has ever been filed under Section 1503 based on extra-judicial statements about a matter of grave public concern, the numerous cases addressing that issue under the sister contempt statute provide the appropriate controlling standard here.
The Supreme Court has consistently used the clear and present danger test to determine the constitutionality of contempt citations. "In a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary can ever constitute a clear and present danger to the administration of justice." Landmark Communications, 435 U.S. at 844. For an extra-judicial statement to constitute an attempt to interfere with the administration of justice, the danger to the pending proceedings must be "extremely serious" and the "degree of imminence extremely high." Bridges v. California, 314 U.S. 252, 263 (1941).
Generally, the Supreme Court has reversed contempt citations for out of court publications because it is rare that out-of-court statements present any danger, much less a clear and present one. See e.g., Wood v. Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v Florida, 328 U.S. 331 (1946). Thus "[t]he fires which [the alleged obstruction] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." Craig v Harney, 331 US 367, 376 (1947). See Hirskopf v. Snead, 594 F2d 356, 369-70 (4th Cir. 1979). The question is "whether the expression ‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’’ Texas v. Johnson, 491 U.S. 397, 409 (1989).
"[T]he great, the indispensable democratic freedoms secured by the First Amendment" have a "preferred place" in our society. Thomas v. Collins, 323 U.S. 516, 529 (1945). "For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger." Id. "The First Amendment is a charter for government, not for an institution of learning. ‘Free trade in ideas’ means free trade in the opportunity to persuade to action, not merely to describe facts." Id. at 537. "Indeed, the whole history of the problem shows it is to the end of preventing action that repression is primarily directed and to preserving the right to urge it that the protections are given." Id.
As the First Amendment precludes a court from finding a contemptuous obstruction when a person makes extra-judicial statements that do not imminently imperial the judicial system, so too the OIC may not punish as obstruction the protected acts of speech here which clearly do not present any danger, much less a clear and present danger. The charges in the indictment include obstruction of justice for talking on the Larry King Live show, for talking to a Newsweek reporter, for allegedly giving an interview to National Enquirer, for talking to two friends, neither of whom were subpoenaed, and for making statements to "numerous other people"
The attempted criminalization of so many acts of protected speech here is fatal to the entire indictment where no act is independent or unrelated. Rather, in each instance Ms. Steele simply reaffirmed her already well-publicized account of the events which had and had not transpired between herself and Willey. Nothing she ever said or did closed any avenue of inquiry or otherwise hampered or blocked the OIC from investigating the matter. See U.S. v. Griffin, 589 F.2d 200, 205 (5th Cir. 1979). When a single-count charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as 'intertwined' and have rested the conviction on both together. Cf. Stromberg v. California, 283 U.S. 359 (1931). See Williams v. North Carolina, 317 U.S. 287, 291-292 (1942).
The obstruction of justice statute, recognized as an extremely broad statute, was never intended to apply and has never been applied to First Amendment activity. The OIC has stretched the statute beyond its intended reach, however, to apply it to such speech, rendering the statute vague and overbroad as applied here and requiring dismissal of the indictment.
Constitutionally sufficient notice may be provided explicitly by statute where "[a] crime and the elements constituting it ... [are] clearly expressed." Connally v. General Const. Co., 269 U.S. 385, 393 (1926). On the other hand, charges may not be derived from a strained, stretched, or novel application of the statute. See United States v. Lanier, 117 S.Ct. 1219, 1225 (1997). The application of a statute to conduct which implicates First Amendment rights must be one which an individual could clearly understand was proscribed and may not be a "novel construction of a criminal statue to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within it's scope." Lanier, 117 S.Ct. at 1225.
This is particularly critical in the area of the First Amendment where the "threat of sanctions may deter their exercise almost as potently as the actual application of the sanctions." NAACP v. Button, 371 U.S. 415, 433 (1963). Thus, a statute applied to First Amendment activity must pass a more stringent vagueness test in this respect than other laws. Village of Hoffman Estates. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982). The requirement of precision and specificity, important where First Amendment rights are burdened by civil statutes, is particularly acute where "legislation imposes criminal penalties in an area permeated by First Amendment interests." Buckley v. Valeo, 424 U.S. 41 (1976). Accordingly, a criminal statute touching First Amendment concerns must "clearly mark the boundary between permissible and impermissible speech." Id.
Section 1503 on its face does not support its application to the acts of speech alleged in the indictment, and no ordinary person could understand that protected speech would be prohibited. See Kolender v. Lawson, 461 U.S. 352 (1983). Ms. Steele is charged under the Omnibus Clause of Section 1503 which "serves as a catchall, ... a clause, ... far more general in scope than the earlier clauses of the statute." United States v. Aguilar, 515 U.S. 593, 598 (1995). It is a broad, general statute susceptible to differing interpretations and untold applications.
In United States v. Poindexter , 951 F.2d 369, 385 (D.C. Cir. 1991), the court of appeals acknowledged that "[c]ourts construing §1503 have adopted a wide variety of interpretations," and that no "clear interpretation of [section 1503], widely adopted and consistently applied" exists. Id. Recognizing the danger of such a broad statute, in Aguilar, the Supreme Court adopted with approval those Circuit Court decisions' which had "place[d] metes and bounds on the very broad language of the catchall provision" of Section 1503. Aguilar, 515 U.S. at 599. There the Court upheld the "nexus" requirement developed in the Tenth, Third, and Eleventh Circuits in their application of Section 1503. Under that test an "act must have a relationship in time, causation, or logic with the judicial proceedings" and "must have the 'natural and probable effect' of interfering with the due administration of justice."
Clearly, this is not a typical obstruction of justice. The typical case involves a defendant who asks a witness to lie, bribes a witness, sends falsified documents to a grand jury, calls a juror at home, or otherwise acts to destroy or falsify evidence. In fact, no case has ever been brought that is remotely like this one, a direct assault on Ms. Steele's exercise of her First Amendment rights. No case has ever charged that a television interview constituted obstruction of justice. No case has ever charged that interviews with national press constituted obstruction. No case has ever charged that the repetition of one's recollection to unsubpoened friends, a story already well publicized and known to those friends, could constitute obstruction. No case has ever charged that repeating your publicly available recollection of events concerning a matter of grave public concern to FBI agents or a grand jury could constitute obstruction of justice. Indeed, no prosecutor has ever so blatantly abused Section 1503 to ruin the credibility of a defense witness before trial.
One court refused to accept a vagueness challenge to Section 1503 because the defendant had acted secretly, not publicly, as here. In United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), the defendant challenged his obstruction conviction for his part in the obtaining and distributing of secret grand jury documents and transcripts based, in part, on his claim that the omnibus clause of Section 1503 was vague and overbroad. Recognizing the harm which flowed from a vague statute which impacted First Amendment freedoms, the court of appeals found that there was "no constitutionally cognizable speech" in Jeter's conduct. "Rather than publish the information to the general public, Jeter clearly attempted to keep his illicit action secret from all persons but the grand jury targets and his other co-conspirators....The primary conduct which is affected by the law at issue must to a substantial extent be the kind of expressive and associational behavior which at least has a colorable claim to the protection of the [First] Amendment." Id. At 678. The indictment, in contrast, charges pure expressive speech as obstruction of justice and thus must be dismissed as vague and overbroad.
Given the breadth of Section 1503, it is not surprising that its sister contempt statutes have been roundly condemned for their vagueness and breadth in First Amendment matters. This Circuit recognized that where contempt statutes aimed at precluding obstruction of justice have been applied to speech, "the standards were so general and vague that they were exceedingly difficult to apply and did little to forewarn speakers for publication about what was proscribed and what was permitted." Hirskopf, 594 F.2d at 365. In Hirskopf, the Fourth Circuit confirmed that one basis for the Supreme Court’s repeated reversals of so many contempt of court convictions based on out of court publications was that the standards were unconstitutionally "vague and general." "Vague rules offend the due process clause…" and those that "restrict expression also offend the first amendment because they chill freedom of speech." Hirskopf, 594 F.2d at 370-71. Thus, the court in Hirskopf stated, out-of-court publications should not be punished "unless their offense be flagrant and done under such circumstances that they should have realized that they were threatening the integrity of the judicial process." Id. at 369.
In the instant case, Ms. Steele’s conduct was neither "flagrant" nor done under "circumstances" which she "should have realized threatened the integrity of the judicial process." Thus, Section 1503 did not provide any notice that Ms. Steele could be charged with obstruction of justice for an appearance on Larry King Live, for magazine interviews or for talking to her friends about this matter of public concern. Nor did the statute provide notice that the mere repetition of those public statements to the FBI and the grand jury could violate that same statute. Given that Section 1503 does not explicitly proscribe the conduct alleged in the indictment and has never been so applied, the OIC has stretched it far beyond its accepted reach, rendering notice and fair warning impossible in violation of the First Amendment.
Additional vagueness problems arise here because of this case's unique circumstances. Ms. Steele, as the facts above show, has told her story consistently and repeatedly. Thus, she could not and did not obstruct any proceeding. She did not block or foreclose any investigative avenue. In fact, the OIC never believed Ms. Steele and never gave her a chance to validate her story. Clearly no "mind of reasonable fortitude," could have been affected by her statements; nor could "anything that obstructed the administration of justice in any sense" possibly arise from her "words.’" See Toledo Newspaper Co. v United States, 247 US, 402, 425 (1918).
In Bridges, a newspaper had been found in contempt for criticism of judges because the convicting judge believed the comments could cause the disorderly administration of justice. The Supreme Court reversed, pointing out that the editorial’s threatened future adverse criticism "was reasonably expected anyway" as any judge in the area knew such criticism would follow from the newspaper in question. "In view of the paper’s long continued militancy in this field," the Supreme Court said, "it is inconceivable that any judge in Los Angeles would expect anything but adverse criticism from it…" 314 U.S. at 272. Thus the news comments "influence on the course of justice can be dismissed as negligible. [W]e find exaggeration in the conclusion that the utterance even ‘tended’ to interfere with justice. If there was electricity in the atmosphere, it was generated by the facts.. " 314 U.S. at 278.
Similarly, in United States v. Knife the district court found that Section 1503 could not apply to a person who had threatened physical injury to the Chief of Police if the Chief did not let a certain individual out of jail. The court found that the defendant's "behavior [far removed from a judicial setting] could only be said to obstruct justice in the most circuitous manner, and to include such behavior within Section 1503 would raise grave constitutional problems." United States v. Knife, 371 F. Supp. 1345, 1348 (D.S.D. 1974). The court went on: "if James Knife's actions were included as a marginal offense falling within Sec. 1503, I fear the vagueness test - that is, whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices - would not be met." Id.
A final consideration which counsels against the application of Sections 1503 and 1001 here is the rule of lenity, described by the Supreme Court as a "sort of 'junior version of the vagueness doctrine.'" Lanier, 117 S.Ct. at 1225. "Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored guideline when the congressional purpose is unclear." Liparota v. United States, 471 U.S. 419, 427 (1985). See United States v. Nofziger, 878 F.2d 442, 452 (D.C. Cir. 1989).
The "text, structure and history" of Sections 1503 and 1001 "fail[s] to establish that the Government's position is unambiguously correct," United States v. Granderson, 511 U.S. 39, 54 (1994). Thus, the rule of lenity requires that the "criminal statute be interpreted in the defendant's favor," not to reach statements about a matter of public concern made to various news organizations and affirmed in statements to friends and others. Nofziger, 878 F.2d at 452.
Ms. Steele's prosecution is unique: She is the only person to be prosecuted by the OIC since it received an expansion of jurisdiction into the area of the Paula Jones lawsuit. That no one else has been indicted suggests a "discriminatory purpose or motive," precisely the kind of selectivity precisely drawn statutes seek to avoid. The OIC has granted immunity to anyone who supports its efforts to destroy the president; those who do not join in that effort are prosecuted, their family and neighbors terrorized, their credibility publicly attacked and the exercise of their fundamental rights ridiculed and punished.
Absent a substantial showing to the contrary, governmental actions are presumed to be motivated solely by proper considerations. United States v. Armstrong, 116 S.Ct. 1480, 1486 (1996). There is no legitimate state interest served, however, where a prosecution is undertaken in retaliation against an individual who has exercised his constitutional rights. See Llewellan v. Rath, 843 F.2d 1103 (8th Cir. 1988). The facts here could not paint a more dramatically stark portrait of a prosecutor's office desperate to squelch public discussion, particularly criticism of its unpopular and unwarranted investigation of the President, generally, and Ms. Steele, in particular. The facts outlined above show beyond question that Ms. Steele alone was singled out for prosecution not only because she refused to support Willey's testimony but also due to her public criticism of the OIC, her petitions for redress, and her pleas that the Attorney General stop the OIC from hounding her and her family.
Equal protection mandates that the decision to prosecute not be based on an unjustifiable factor. But in the First Amendment area that rule is even more strictly applied. Any indictment motivated by an individual's exercise of constitutional rights through participation in political activity must be dismissed. See United States v. Marcum, 16 F.3d 599, 602 (4th Cir. 1994); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) cited by United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997). "[F]or an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'" Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); see also United Sates v Goodwin, 457 U.S. 368, 372 (1982) ; United States v. Jacobs, 4 F.3d 603, 604 (8th Cir. 1993); United States v. Beede, 974 F.2d 948, 951 (8th Cir. 1992).
The OIC never viewed Ms. Steele as a witness who could shed light on Willey’s credibility, and never once asked her a question directly or indirectly about that topic. This has not been a fact-finding mission, rather it has been a vendetta against a woman who is willing to tell the truth, a truth the OIC does not like. As the facts demonstrate, every action taken by the OIC has been a reaction to criticism by Ms. Steele and her attorneys. This indictment for the first time in our history calls public and private statements on matters of grave public concern "crimes." It was motivated by the OIC's interest in punishing Ms. Steele for making those statements because they were critical of the OIC and its chosen witnesses. The OIC has made clear to all others who may try to resist its demands, or who may disagree with those it has chosen to protect with immunity, that they will be indicted or jailed.
"There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise." Bordenkircher, 434 U.S. at 365. Thus, in Blackledge v. Perry, 417 U.S. 21, 27 (1974), where there was a "realistic likelihood of 'vindictiveness,'" the Court held that due process prevented a prosecutor's reindictment of a defendant after his right to appeal was exercised. Clearly then, "if the only objective of a state practice is to discourage the assertion of constitutional rights" as here, "it is 'patently unconstitutional.'" Where First Amendment rights are implicated, however, and the state's action is motivated in any part by retribution or vindictiveness, the indictment must be dismissed. See American Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981) Llewelyn v. Raff, 843 F.2d 1103 (8th Cir. 1998).
The effect of this indictment was "immediately to ... curtail the exercise of First Amendment rights, See Wolff v. Selective Service, 372 F2d 817,823 (2d Cir. 1967). The chill to, indeed, the actual infringement of, protected speech which has occurred in connection with this case shows that the danger of applying this statute to the conduct alleged is not hypothetical. Anyone with knowledge of the events under Starr's microscope would be foolhardy to speak out now, particularly where Ms. Steele's right to speak about her own case has been denied. Presumably the government fears Ms. Steele will continue to speak out about the grand jury and other abuses by the OIC, including why she was chosen for indictment, and why her daughter, accountant, attorney and other friends and relatives were hounded by the OIC and the FBI. Even with this indictment, Ms. Steele has her good name and her credibility. The OIC does not. These continuous dictatorial attempts to control Ms. Steele's opinions and her speech can not be condoned by this court.
The vagueness inherent in the indictment further chills the First Amendment rights of any person who may wish to speak out about the most important political matter of the decade. "It must be recognized that public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist." Bridges v Cal., 314 U.S. 252, 268 (1941). Thus, punishing utterances about a trial or investigation during its pendency "produce their restrictive results at the precise time when public interest in the matters discussed would naturally be at its height. Moreover, the ban is likely to fall not only at a crucial time but upon the most important topics of discussion." Id. Clearly, the chill on First Amendment rights is real and immediate, and it must be resolved by this court quickly before further damage is done.
Because First Amendment rights are of "transcendent value to all society," Bigelow v. Commonwealth of Virginia, 421 U.S. 809, 816 (1975), "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). Delay is intolerable where injury to First Amendment rights may occur, In re Halkin, 598 F.2d at 199, because of the danger of tolerating, in the area of First Amendment freedoms, criminal statutes susceptible of sweeping and improper application which will induce "citizens to 'steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked." Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (citations omitted). Here no further delay should be tolerated. The indictment should be dismissed immediately.
CONCLUSION
For the above reasons, this indictment must be dismissed as violative of the First Amendment.
Respectfully submitted,
REED SMITH SHAW & MCCLAY LLP
_____________________________
Nancy Luque
Rangeley Wallace
1301 K Street, N.W.
Suite 1100 - East Tower
Washington, D.C. 20005
(202) 414-9200
DATED: February 16, 1999
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Dismiss Indictment Under the First Amendment and the Memorandum of Law in Support of Motion to Dismiss Indictment Under The First Amendment was served, via facsimile and first-class mail, this ___ day of February, 1999.
David G. Barger
Associate Independent Counsel
Office of Independent Counsel
2461 Eisenhower Avenue
Suite 1400
Alexandria, VA 22331
_______________________
Nancy Luque