## Facts

- During the Senate impeachment trial, a newspaper reported that some prosecutors in the Office of Independent Counsel (OIC) believed the Independent Counsel should seek a grand jury indictment of the President for perjury and obstruction of justice after the trial concluded.
- The White House and the President (personally) moved in district court for an order to show cause why the OIC or its personnel should not be held in contempt for disclosing grand jury material in violation of Federal Rule of Criminal Procedure 6(e).
- The district court found the article excerpt to be a prima facie Rule 6(e) violation, issued an order to show cause for civil contempt, and appointed the Department of Justice (DOJ) to prosecute the OIC for criminal contempt.
- The OIC asserted the article described internal deliberations and repeated prior public reporting, and did not disclose “matters occurring before the grand jury.”
- The OIC took an interlocutory appeal and obtained an administrative stay while seeking summary reversal of both the show-cause order and the DOJ appointment.

## Issues

1. Whether the article’s statements about possible charges and prosecutors’ internal views constituted “matters occurring before the grand jury” and thus established a prima facie violation of Federal Rule of Criminal Procedure 6(e).
2. Whether, given the asserted Rule 6(e) violation, the district court’s contempt-related orders (including appointing DOJ to prosecute criminal contempt) could stand on interlocutory review.

## Decision

- The court of appeals exercised interlocutory jurisdiction and granted summary reversal.
- The court held the reported information did not constitute “matters occurring before the grand jury” and therefore did not make out a prima facie Rule 6(e) violation.
- Because no prima facie Rule 6(e) violation existed, the district court lacked an adequate basis to issue a contempt show-cause order against the OIC.
- The court also reversed the appointment of DOJ to prosecute the OIC for criminal contempt because the appointment rested on the same erroneous premise that Rule 6(e) had been violated.

## Legal Principles

- Rule 6(e) protects secrecy of grand jury proceedings, not all information connected to an investigation that could later be presented to a grand jury.
- “Matters occurring before the grand jury” generally include the substance of what transpired in the grand jury’s work (such as witness identities and testimony, juror deliberations, and grand jury actions reflecting investigative direction), not generalized descriptions of prosecutorial deliberations or future plans.
- Public reporting that describes potential charges or internal prosecutorial strategy, without revealing specific grand jury evidence, testimony, or decisions, does not by itself establish a prima facie Rule 6(e) violation.
- When the predicate for contempt is the alleged disclosure of grand jury matters, contempt process requires a sufficient threshold showing that the disclosure falls within Rule 6(e).

## Conclusion

The court of appeals reversed contempt-related orders against the OIC because the newspaper account of prosecutors’ views about seeking an indictment described internal strategy and prospective steps, not protected “matters occurring before the grand jury” under Rule 6(e), leaving no valid basis for contempt proceedings.


In re Sealed Case No. 99-3091, 192 F.3d 995 (D.C. Cir. 1999)