United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2011 Decided December 9, 2011

No. 10-5372

IN RE: CONTEMPT FINDING IN UNITED STATES V. STEVENS,

WILLIAM M. WELCH AND BRENDA K. MORRIS,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-mc-00273)

Mark H. Lynch and Catherine E. Stetson argued the cause

for appellants. With them on the briefs were Simone E. Ross,

William W. Taylor III, Chuck Rosenberg, and Michele W.

Sartori.

Steven H. Goldblatt, appointed by the court, argued the

cause as amicus curiae in support of the lower court’s

judgement. With him on the brief was Doug Keller, Supervisory

Attorney.

Before: ROGERS and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Circuit Judge EDWARDS.
2

ROGERS, Circuit Judge: The issue in this appeal is whether

the district court erred in holding two Justice Department

attorneys in contempt without affording them the procedural

protections provided by Rule 42(a) of the Federal Rules of

Criminal Procedure for criminal contempt. We hold there was

no error. The character and nature of the contempt were civil. 

Its purpose was to compel the production of documents to the

defendant as the district court had ordered. The contempt was

purged upon their production, the contempt was lifted, and no

sanctions were imposed because the contempt finding had

prompted compliance with the district court’s order. 

I.

In October 2008, after a trial that the district court

characterized as “marred by repeated allegations of discovery

violations and prosecutorial misconduct,” In re Contempt

Finding in United States v. Stevens, (“Contempt Finding”), 744

F. Supp. 2d 253, 256 (D.D.C. Oct. 12, 2010), a jury convicted a

sitting United States Senator of accepting gifts without reporting

their value on his campaign disclosure forms, in violation of 18

U.S.C. § 1001(a)(1) & (2). Prior to sentencing, the Justice

Department received on December 2, 2008 a self-styled

“whistleblower” complaint from FBI Special Agent Chad Joy. 

The complaint alleged misconduct by certain government

employees involved in the investigation and prosecution, but not

William M. Welch or Brenda K. Morris, the two Justice

Department attorneys now before this court who are,

respectively, the Chief and Principal Deputy Chief of the Public

Integrity Section, Criminal Division. The Department notified

the district court ex parte on December 11, 2008 by sealed

memorandum and requested the Joy complaint be filed under

seal. On December 19, after a sealed hearing attended by Welch

and Morris and at which Joy’s attorney asked that the complaint
3

be sealed based on Joy’s desire for whistleblower protection, the

district court ordered the Department to give an unredacted copy

of the complaint to the defendant and that a redacted copy of the

complaint be filed on the public docket.

A second hearing was held on January 14, 2009 regarding

whether, as the Department requested, redacted names should be

made public, including Joy’s. Welch advised the district court

that Joy did not qualify for whistleblower status. The district

court, concerned that it had been mislead at the December 19

hearing, sought to determine when Joy had been denied

whistleblower status. Morris stated Joy “had been given a letter

as early as December 4th telling him he had been denied

whistleblower status.” Status Hr’g Tr. Jan. 14, 2009 at 17. When

the district court inquired why it had not been informed, Welch

and Morris stated neither they nor the Public Integrity Section

had known. After further questioning, the district court stated

that it wanted a declaration from the Attorney General stating

who knew what when and told Welch and Morris that they had

an obligation to inform the district court that Joy had been

denied whistleblower status either before the December 19

hearing or as soon as they learned. The district court’s revised

order read:

ORDERED that the government produce all

communications to, from, or between anyone in [the

Office of Public Integrity], and any other office within

the D[epartment], including, but not limited to, the

[Office of Inspector General, the Office of Professional

Responsibility], the FBI, and the U.S. Attorney’s office

for the District of Alaska, between November 15, 2008

and the present, regarding the complaint filed by Agent

Joy, to be filed under seal with the Court, with a copy

provided to the defendant pursuant to the protective
4

order already in place in this case, by no later than

January 30, 2009.

Order Jan. 21, 2009 at 18.

On January 30, 2009, the Department filed its response, ex

parte, providing the documents to the district court for in

camera inspection. An accompanying memorandum stated that

“[r]ead literally, the January 21 Order would require the

disclosure of any communication ‘to, from, or between anyone

in [the Office of Public Integrity], and any other office within

[the Department]’ between November 15, 2008 and January 21,

2009,” related to Joy’s complaint, including communications

irrelevant to whether the Department had misled the court. 

Gov’t’s Submission in Response to the Court’s Jan. 21, 2009

Order at 12. The Department accordingly limited its production

to documents concerning who within the Department knew

about Joy’s whistleblower status and when they knew it, and

objected to any broader disclosure. It asked for a two-week stay

of the January 21 order if the district court disagreed, so the

Department could seek reconsideration or appellate review. The

Department provided only a redacted version of its

memorandum to the defendant, stating “it has become apparent

that compliance would require the production of substantial

amounts of privileged and work-product protected materials.” 

Id. at 13. It requested advance notice of any decision by the

district court to release the documents to the defendant. The

memorandum was signed by Patty Stemler, the chief of the

Appellate Section, Criminal Division, Welch, and Morris. 

On February 2, 2009, the defendant moved for the district

court to “hold the government in contempt and require

immediate compliance with the January 21 Order.” Sen.

Stevens’s Mot. to Dismiss or for a New Trial, or in the

Alternative, Mot. to Hold Gov’t in Contempt for Violating
5

Court’s Jan. 21, 2009 Order at 12. The motion argued that

although the January 21 order was “unambiguous,” and the

district court had warned that motions for reconsideration be

filed well in advance of the deadline and parties refrain from ex

parte communications, the Department had not turned over the

documents nor sought reconsideration of the district court’s

order, but instead “simply violated the Order and filed a lastminute ‘conditional’ request for a stay that could not have been

acted upon before the compliance deadline.” Id. at 7 (emphasis

in original). Arguing further that “[t]he government has

flagrantly disobeyed the Court’s order,” the motion urged that

“only a contempt sanction can ensure compliance.” Id. at 11. 

The motion cited authority for using civil contempt to ensure

compliance with a court order for document production, see id.

at 11–12 (citing Fannie Mae Securities Litigation, 552 F.3d 814,

823–24 (D.C. Cir. 2009)), and argued that to the extent the

Department claims the documents are privileged “those

documents should be ordered produced to the defense as a

remedy for the government’s contempt,” id. at 12.

On February 3, 2009, the district court ordered the

Department to respond to the motion by February 9 and to

“include a detailed privilege log for each communication it

seeks to withhold,” with points and authorities. Order Feb. 3,

2009 at 3. It also called for a declaration from “an official with

oversight responsibility for the Civil Division . . . and any and

all relevant communications between attorneys in the Civil

Division and attorneys within the Public Integrity Section or the

Appellate Section of the Criminal Division.” Id. at 5. The

Department timely filed its response, “waiv[ing] any assertion

of work-product protection that might otherwise apply to those

documents in the privilege log for which no specific basis for

protection is provided.” Gov’t’s Consolidated Resp. to the

Court’s Feb. 3, 2009 Order and to Def’s Mot. to Dismiss or for

a New Trial, or in the Alternative, Mot. to hold the Gov’t in
6

Contempt at 3 n.1. The Department also insisted that “nothing

in the record of this case suggests that the Court must sanction

the Government to ensure its compliance with court orders.” Id.

at 14–15. 

At a status hearing on February 13, 2009, Kevin Driscoll,

for the Department, advised the district court that the

Department was not asserting work-product privilege for

“approximately 33 documents” and would turn them over to the

defendant “forthwith.” Status Hr’g Tr. Feb. 13, 2009 at 10, 11. 

He explained the Department had yet to turn them over to the

defendant because it was waiting to see if the district court

agreed with its interpretation of the January 21 order, but he

conceded there was “no reason” these documents had not been

produced to the defendant. Id. at 11. The district court

thereupon found Welch, Morris, Stemler and Driscoll in

contempt, stating that the court had ordered the documents to be

turned over to the defendant or to invoke a privilege and that the

Department advises “there’s no reason why they weren’t turned

over.” Id. Observing it would “deal with whatever sanctions

are appropriate at the conclusion of this case,” id., the district

court ordered that “those documents [be] turned over today

before the close of business . . . [by] five o’clock,” id. at 11–12. 

The Department turned over the documents to the defendant

later that day.

By minute order of February 14, 2009, the district court, 

“[u]pon reflection,” sua sponte withdrew its finding of contempt

with respect to Driscoll. Minute Order Feb. 14, 2009. Stating

it had held four Department attorneys in contempt “for failure to

comply with this Court’s January 21, 2009 and February 3, 2009

Orders, after the attorneys acknowledged that they had no reason

for failing to comply with the Orders, they simply had not

complied,” the district court noted that “Driscoll did not sign the

relevant pleadings, has not filed an appearance in this case, and
7

appears to have been brought in by his supervisors only recently

for the limited purpose of addressing a discrete issue.” Id. By

contrast, “the three senior [Department] attorneys present at the

hearing did sign the relevant pleadings and have been working

on the specific issues related to the Court’s January 21, 2009 and

February 3, 2009 Orders for months.” Id. Thus, “under the

circumstances, it was those attorneys’, and not Mr. Driscoll’s,

responsibility to ensure that the government compiled with the

Court’s Orders.” Id. 

On June 2, 2009, Stemler filed a motion to vacate the

contempt finding on the ground that she was wrongly held in

criminal contempt because she did not have the requisite intent

to act wrongfully and was not afforded the procedural

protections required by Criminal Rule 42(a). Stemler’s motion

was placed on the miscellaneous docket as In re: Contempt

Finding in United States v. Stevens, Civil Miscellaneous, No.

1:09-mc-273. Stemler, Welch, and Morris were listed as

petitioners; a copy of the February 14, 2009 minute order in the

criminal case was the first docket entry. 

On October 12, 2010, the district court denied Stemler’s

motion to vacate the contempt finding, but lifted the contempt

finding nunc pro tunc as to Stemler, Welch, and Morris because

they had purged themselves of contempt on February 13, 2009,

and dismissed the case. See Order Oct. 12, 2010; Contempt

Finding, 744 F. Supp. 2d at 264. The district court stated that

Stemler, Welch, and Morris had been held in civil contempt

because the contempt was coercive in nature and they had

purged themselves of the contempt when they turned over the

documents to the defendant. Contempt Finding, 744 F. Supp. 2d

at 256, 264. Concluding that the Department’s “belated

production of all documents required by the Court’s January 21,

2009 Order mooted any need for coercion,” the district court

“therefore finds that the contempt has been purged, and finds it
8

appropriate to lift the contempt finding of February 13, 2009 as

of the date and time at which the government complied with the

January 21, 2009 Order.” Id. at 264 (internal quotation marks

and citations omitted). “Accordingly, Ms. Stemler, Mr. Welch,

and Ms. Morris are no longer in contempt for their violation of

the Court’s January 21, 2009 Order.” Id.

Welch and Morris appeal, contending that the district

court’s contempt finding was criminal, procedurally improper,

and should be vacated. Our review is de novo.

1

 See Salazar ex.

rel. Salazar v. Dist. of Columbia, 602 F.3d 431, 436–37 (D.C.

Cir. 2010); United States v. Gatling, 96 F.3d 1511, 1521 (D.C.

Cir. 1996).

 

II.

The framework for determining whether a contempt is civil

or criminal is described in a series of Supreme Court cases,

notably in Gompers v. Bucks Stove & Range Co., 221 U.S. 418

(1911). There, the Supreme Court acknowledged that

“[c]ontempts are neither wholly civil or altogether criminal,”

and observed that “it may not always be easy to classify a

particular act as belong to either one of these two classes.” Id.

at 441. The Court instructed, “[i]t is not the fact of punishment,

but rather its character and purpose, that often serve to

distinguish between the two classes of cases. If it is for civil

contempt the punishment is remedial, and for the benefit of the

complainant. But if it is for criminal contempt the sentence is

punitive, to vindicate the authority of the court.” Id. Drawing

on Gompers in Hicks on Behalf of Feiock v. Feiock, 485 U.S.

1

 This court appointed amicus to present arguments in support

of the February 13, 2009 finding of contempt, Order No. 1300685

(D.C. Cir. Mar. 30, 2011), and expresses appreciation for his 

assistance.
9

624 (1988), the Court stated that “conclusions about the

purposes for which relief is imposed are properly drawn from an

examination of the character of the relief itself,” not from “the

subjective intent of a State’s laws and its courts.” Id. at 635–36. 

In International Union, United Mine Workers v. Bagwell, 512

U.S. 821 (1994), the Court summarized the distinction, stating

that civil contempt is ordinarily used to compel compliance with

a court order, although in some circumstances a civil contempt

sanction may be designed to “compensate[] the complainant for

losses sustained.” Id. at 829. By contrast, criminal contempt is

used to punish, that is, to vindicate the authority of the court

following a transgression rather than to compel future

compliance or to aid the complainant. Id. at 828.

“Under that analysis, this case is straightforward and the

district court correctly characterized the contempt as civil.”

Amicus Br. 25. The February 13, 2009 order had as its purpose

to compel the Department’s production of documents to the

defendant in accordance with the January 21, 2009 order. This

is a classic use for civil contempt. “Contempts such as failure

to comply with document discovery” are “appropriate for

imposition through civil proceedings” because they “impede the

court’s ability to adjudicate the proceedings before it and thus

touch upon the core justification for the contempt power.” 

Bagwell, 512 U.S. at 833. The defendant’s motion for contempt

focused on ensuring the documents were turned over as the

district court had ordered on January 21, 2009. This coercive

purpose was confirmed in the February 13 contempt finding and

the February 14 minute order. The absence of sanctions did not

— as in Cobell v. Norton, 334 F.3d 1128, 1145 (D.C. Cir.

2003), on which Welch and Morris rely — obscure the nature

of the contempt. As amicus points out: The district court

confirmed in its memorandum opinion of October 12, 2010 that

Welch and Morris had purged themselves of contempt when

they turned over the documents. It lifted the contempt and
10

imposed no sanctions because the contempt finding had

prompted them to comply with the district court’s prior order. 

Because they were not sanctioned, and because the contempt

was purged, Welch and Morris were held in civil contempt. See

Salazar, 602 F.3d at 438.

Welch and Morris contend the district court’s February 13,

2009 contempt ruling was a finding of criminal contempt for

three reasons: (1) The district court stated it intended to impose

sanctions at a later date; (2) the alleged contempt was not

immediately purged by the Department’s compliance with the

district court’s January 21, 2009 order; and (3) the district court

punished them by reprimanding them in open court for what it

characterized as “outrageous” behavior by the Department.2

As regards their first point, Welch and Morris maintain that

at no point did the district court suggest that compliance by the

Department would be adequate to purge the contempt and its

“stated intention to impose sanctions at a later date should be

dispositive of the criminal nature of the contempt.” Appellants’

Br. 21. In fact, the district court told them at the February 13,

2

 Welch and Morris state in a footnote of their opening brief

that the district court abused its discretion in finding them to be in

civil contempt because their failure to comply with the district court’s

order was an “oversight.” Appellants’ Br. 26 n.11. This argument

would be waived because it appears only in a footnote, without

citation to authority or to the record. Doe v. Exxon Mobil Corp., 654

F.3d 11, 50 n.37 (D.C. Cir. 2011); see also NLRB v. Blevins Popcorn

Co., 659 F.2d 1173, 1184 n.67 (D.C. Cir. 1981) (holding that “[s]ince

the purpose [of civil contempt] is remedial it matters not with what

intent the [contemnor] did the prohibited act”) (quoting McComb v.

Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). On reply,

however, they clarify that they “are not arguing that they were

improperly held in civil, as opposed to criminal, contempt.” Reply Br.

12 n.3
11

2009 hearing precisely what they needed to do: turn over the 30

or so documents before 5 p.m. that day. Whether or not they

were explicitly told the contempt would be thereby purged, it

was in fact purged once they complied with the district court’s

order, a classic identifier of civil contempt. See Bagwell, 512

U.S. at 828. 

Second, they note that the district court left the contempt

standing after the Department complied with the January 21,

2009 order, after lifting the finding as to Driscoll on February

14, 2009. Reliance on the timing of the district court’s decision

to lift the contempt is misplaced. Welch and Morris, who are

experienced attorneys at the Department, could have asked the

district court for clarification of the nature of the contempt at

the February 13 hearing or afterwards, yet they never did. The

fact that the district court did not act sua sponte the following

day as to Welch and Morris as it did for Driscoll, either to

reverse itself or lift their contempt, is of no moment. The

district court identified a relevant distinction between their

status and Driscoll’s. And the district court decided to postpone

consideration of sanctions because, as they knew, it was in the

midst of the criminal trial where, prior to sentencing, a

complaint had been filed alleging misconduct by the

Department. When the district court did address sanctions, it

concluded there was no need for them in view of the

Department’s “belated production” of the required documents,

and lifted the contempt as of the time of production. Contempt

Finding, 744 F. Supp. 2d at 264. Moreover, they misread the

February 14, 2009 minute order as confirming their contempt,

Reply Br. 7, when, in fact, the district court was recounting

what it had done the day before. In relying on Driscoll’s

statement on February 13, 2009 that the Department would

“forthwith” produce the documents, Reply Br. 9, they ignore the

distinction between a promise to take action and action that

should already have been completed.
12

Third, Welch and Morris maintain that the district court’s

reprimand constituted criminal contempt. Relying on Cobell v.

Norton, 334 F.3d 1128 (D.C. Cir. 2003), they suggest a

reprimand, particularly where the contemnor is a public official

acting in his or her official capacity, is a criminal contempt. 

They focus on the following italicized words used by the district

court in finding the prosecution team in contempt:

I’ll deal with the sanctions associated with the

[contempt] at a later date, but that’s outrageous for the

Department of Justice, the largest law firm on this

planet, to come before a federal judge and say, yeah,

Judge, you know, we recognized your order, we

realized it, and we just haven’t gotten around to

complying with it, and we really don’t have a good

faith reason or any reason for not having complied

with it. That is not acceptable in this court and that’s

the reason why I’m adjudicating those attorneys in

contempt. 

Status Hr’g Tr. Feb. 13, 2009 at 13 (emphasis added). They

assert that these words are “the hallmarks of a punitive

contempt order,” Appellants’ Br. 25, illustrated by the district

court’s characterization of the failure to comply with the

January 21, 2009 order as “outrageous” and “not acceptable.” 

In finding them in contempt, they conclude, the district court

sought to “[v]indicat[e] a perceived affront to its authority,”

Appellants’ Br. 25, which they maintain is the purpose of

criminal contempt and not an interest addressed by civil

contempt. 

All three grounds that Welch and Morris present for the

conclusion they were held in criminal contempt focus primarily

on what the district court said or did despite the Supreme

Court’s instruction that conclusions about the type of contempt
13

are to be drawn from an examination of the relief itself. See,

e.g., Bagwell, 512 U.S. at 828; Hicks, 485 U.S. at 635–36. They

resist the idea that the district court might sua sponte impose an

unconditional compensatory sanction, which is compatible with

civil contempt, see Local 28 of Sheet Metal Workers’ Int’l Ass’n

v. EEOC, 478 U.S. 421, 443 (1986); see generally 4 Dep’t of

Justice Crim. Resource Manual, Tests for Distinguishing

Between Civil and Criminal Contempt, 9 § 757 (2011), or

determine, as occurred, no further sanction was required. 

Further, they cite no case in which remarks like those on which

they rely were held to transform civil contempt into criminal

contempt, and their reliance on Cobell is misplaced. 

In Cobell, the district court stated in a published opinion

that the Interior Department was “an embarrassment to the

federal government,” noted that it was “saddened and disgusted

by the Department’s intransigence,” and stated that the Secretary

and Assistant Secretary could “now rightfully take their place .

. . in the pantheon of unfit trustee-delegates.” 334 F.3d at 1136

(citing Cobell v. Norton, 226 F. Supp.2d 1, 125, 113, 161

(D.D.C. 2002) (“Cobell Contempt Opinion”)). The district

court’s 152 page opinion followed a 29-day bench trial on the

contempt charges in a class action that had resulted in multiple

appeals and the district court had criticized the responses of

several Administrations to its orders. See, e.g., id. at 1134. On

appeal this court concluded the contempt was criminal in view

of the district court’s “exceedingly strong words” in finding the

defendants in contempt, suggesting it intended the finding as a

reprimand, id. at 1146, and the lack of “any suggestion that the

defendants could yet comply [with its orders] and thereby purge

themselves of the contempt,” id. at 1147. This court observed

that the district court had accused the Secretary and Assistant

Secretary of “committ[ing] a fraud on the Court.” See id. at

1145 (quoting Cobell Contempt Opinion, 226 F. Supp.2d at

161). Here, by contrast, the district court’s extemporaneous
14

remarks upon finding Department attorneys in contempt were

significantly less harsh than the district court’s statements in the

Cobell Contempt Opinion. For better or for worse, commenting

that a party’s conduct is “unacceptable” or even “outrageous” is

neither unprecedented nor exceptional in the course of trial

litigation. See Amicus Br. 37 n.3 (citing cases from the Second,

Fifth, and D.C. Circuits). By using such language the district

courts ensure the “incidental effect” of a finding of civil

contempt will be “a vindication of the court’s authority” to issue

the original order. Gompers, 221 U.S. at 443. This incidental

effect does not change the nature of the contempt. See id. 

 Accordingly, because the purpose and character of the

contempt found on February 13, 2009 were civil in nature, the

district court did not err by failing to provide Welch and Morris

with the procedural protections afforded by Federal Rule of

Criminal Procedure 42(a), we affirm the February 13, 2009 and

October 12, 2010 orders. See Contempt Finding, 744 F. Supp.2d

at 264.
EDWARDS, Senior Circuit Judge, concurring: I am pleased

to join the opinion for the court. I write separately to respond

briefly to Appellants’ claim that they have been stigmatized. I

fully understand the personal and professional concerns raised

by Appellants, but I am unpersuaded by their legal argument.

Appellants contend that “[t]he District Court ‘adjudicat[ed]’

[them] in contempt because it believed that their purported

failure to comply with the January 21, 2009 order was

‘outrageous’ and ‘not acceptable.’” Opening Br. of Appellants

at 25. According to Appellants, the comments of the District

Court “are the hallmarks of a punitive [criminal] contempt

order.” Id. As the opinion for the court makes clear, this claim

is without merit. 

Given the fallacy of Appellants’ principal claim, the

disposition of this case does not seem difficult. On the record

before us, there can be little doubt that Appellants were cited for

civil, not criminal, contempt. It is also noteworthy that

Appellants “are not arguing that they were improperly held in

civil, as opposed to criminal, contempt.” Reply Br. at 12 n.3. 

Therefore, “[b]ecause the contempt has been purged, the issue

presented by appellant[s] is moot.” United States v. Griffin, 816

F.2d 1, 7 n.4 (D.C. Cir. 1987) (citation omitted). One wonders,

then, why Appellants have pursued this appeal. 

During oral argument, Appellants’ counsel essentially

claimed that Appellants were seriously stigmatized by the strong

words used by the District Court and that this stigma has

impaired their good standing in the legal profession. Counsel

went so far as to suggest that, going forward, Appellants will be

required to list themselves as criminal contemnors on state bar

reports, personnel records, and job applications. As I understand

their argument, Appellants seem to believe that, because the

stigmatizing effects of their contempt citations are so great, “the

contempt finding here was unmistakably punitive – and

therefore criminal – in nature.” Opening Br. of Appellants at 26. 

They want their day in court, in an adjudication over what they

believe are citations for criminal contempt, to clear their names. 
2

I understand Appellants’ apparent desire for public vindication,

for I certainly know that no responsible member of the legal

profession relishes being accused of “outrageous” and

“[un]acceptable” conduct in judicial proceedings. Indeed, no

good attorney looks to be publicly accused of failing in her or

his professional responsibilities, whether or not the accusation

arises in the context of a contempt citation. The problem here

is that Appellants’ argument is a classic non sequitur. There is

no viable connection between the premise of Appellants’

argument – i.e., they were seriously stigmatized by a strong

judicial admonition – and their conclusion – i.e., they were held

in criminal contempt.

First, to clarify this on the record, it simply cannot be so

that, following the issuance of our judgment in this case,

Appellants will be required to list themselves as criminal

contemnors on state bar reports, personnel records, job

applications, or any other such papers. Such a disclosure would

be a fabrication. Our decision in this case confirms, once and

for all, that Appellants’ conduct in this case did not result in a

finding of criminal contempt. Therefore, Appellants can never

face the opprobrium that might have come had they been held in

criminal contempt. 

Second, Appellants’ concerns over the possible stigmatizing

effects of the civil contempt citations are undoubtedly serious

and sincere. But these concerns surely cannot, without more,

support their position. The record in this case shows, without

much doubt, that the District Court clearly did not intend to

“punish” the Appellants for “failing to comply” with the court’s

orders. Cobell v. Norton, 334 F.3d 1128, 1147 (D.C. Cir. 2003)

(citation and internal quotation marks omitted). Nor was the

District Court principally concerned with vindicating its own

authority, see Int’l Union, United Mine Workers v. Bagwell, 512

U.S. 821, 828 (1994), when it held Appellants in contempt on

February 13, 2009; rather, the court was seeking to compel the
3

production of documents pursuant to its January 21, 2009 order. 

Everything that the District Court did following the issuance of

its February 13, 2009 order confirmed this. Save for the civil

contempt citations, which obviously served to coerce the

production of the disputed documents, Appellants were never

sanctioned for the delayed production of documents. 

Finally, as the opinion for the court notes, it is no answer

for Appellants to complain that the District Court left the

contempt citations standing for an unduly long period of time

after the Department of Justice complied with the court’s

January 21, 2009 order. Appellants could have acted to resolve

the situation by simply filing a motion with the District Court

seeking clarification on sanctions. Indeed, it seems ironic that

Appellants never sought clarification even as they seemingly felt 

that the unresolved civil contempt citations further stigmatized

their professional reputations beyond the initial effects of the

strong words used by the District Court when the citations were

issued. Appellants may have had what they felt were good

reasons for avoiding further interactions with the District Court

during the pendency of the criminal trial. But the District Court

cannot be blamed for Appellants’ failure to seek clarification, if

this was a matter of serious concern to them. I do not take

Appellants’ concerns lightly, but I find no support for their 

claim that the District Court’s delay in lifting the contempt

finding made them criminal contemnors in the eyes of the law.