IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

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 : 

In Re SPECIAL PROCEEDINGS : Misc. No. 09-0198 (EGS) 

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MEMORANDUM OPINION

 Pending before the Court are two motions to permanently 

seal from public disclosure the Report to the Honorable Emmet G. 

Sullivan of Investigation Conducted Pursuant to the Court’s 

April 7, 2009 Order (“Mr. Schuelke’s Report” or “Report”).1

 For 

the reasons discussed herein, the Court DENIES the motions and 

ORDERS that Mr. Schuelke shall provide an unredacted version of 

this Memorandum Opinion to each of the attorneys who received 

copies of the Report, pursuant to the Court’s November 21, 2011 

Order and the executed Confidentiality Agreement. It is further 

ORDERED that Mr. Schuelke file his Report on the public docket 

on March 15, 2012, after the subject attorneys are afforded an 

                                                            

1

 In addition to the two motions, two individuals or entities 

filed objections to publicly disclosing Mr. Schuelke’s Report, 

and one entity filed a memorandum in support of publicly 

releasing the Report, but these individuals and entities did not 

specifically move the Court for their requested relief. 

Nevertheless, as discussed infra Part I.B., the Court has 

considered and will address all arguments made in opposition to 

and in support of public disclosure, regardless of whether they 

were made by motion, memorandum, or notice. As also discussed 

infra Part I.B., the Department of Justice and two of the 

subject attorneys filed pleadings indicating that they do not 

oppose release of the Report. 
   

2 

opportunity to submit their comments or objections to Mr. 

Schuelke by no later than March 8, 2012. Mr. Schuelke shall 

include any such submissions as addenda to the published Report. 

It is further ORDERED that when the Report is made public, the 

individuals who are subject to the Confidentiality Agreement as 

a condition to having access to the Report shall be released 

from that Confidentiality Agreement. It is further ORDERED that 

on March 15, 2012, all pleadings related to Mr. Schuelke’s 

Report and filed in response to the Court’s November 21, 2011 

Order shall be unsealed and placed on the public docket. 

Finally, it is further ORDERED that on March 15, 2012, an 

unredacted version of this Memorandum Opinion shall be placed on 

the public docket.2

 

 To deny the public access to Mr. Schuelke’s Report under 

the circumstances of this case would be an affront to the First 

Amendment and a blow to the fair administration of justice. In 

July 2008, attorneys in the Public Integrity Section of the 

Department of Justice indicted a public official for allegedly 

failing to report gifts on his public disclosure forms. The 

attorneys then tried the defendant in the most public manner 

                                                            

2

 Because this Memorandum Opinion references information that is 

currently under seal, the Court has made limited redactions to 

this Opinion. In view of the Court’s decision to publicly 

release Mr. Schuelke’s Report and the various pleadings 

discussed herein on March 15, 2012, the Court will also post an 

unredacted version of this Memorandum Opinion on that date. 
   

3 

possible, and when they obtained a guilty verdict, they held a 

press conference to proclaim victory to the public. As a result 

of that verdict, the public official lost his bid for reelection, which tipped the balance of power in the United States 

Senate. 

 Meanwhile, in the face of serious and mounting allegations 

of prosecutorial misconduct throughout the trial and post-trial 

proceedings, the attorneys repeatedly represented to the Court 

and to the public that there was no wrongdoing and no cause to 

question the integrity of either the indictment or the verdict. 

Only when faced with uncontroverted evidence that the attorneys 

had committed Brady violations3

 did the government come before 

the Court and publicly move to dismiss the indictment and vacate 

the verdict. And only at that point did the government seek to 

turn this public proceeding into a private one, assuring the 

Court that it would investigate the prosecutors internally 

through its confidential Office of Professional Responsibility 

process. 

The U.S. Court of Appeals for the District of Columbia 

Circuit has said, following Supreme Court precedent, that First 

Amendment access to criminal proceedings “serves an important 

function of monitoring prosecutorial or judicial misconduct.” 

Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) 

                                                            

3 Brady v. Maryland, 373 U.S. 83 (1963). 
   

4 

(citations omitted). Mr. Schuelke’s five-hundred-page Report 

concludes that “the investigation and prosecution of Senator 

Stevens were permeated by the systematic concealment of 

significant exculpatory evidence which would have independently 

corroborated [his] defense and his testimony, and seriously 

damaged the testimony and credibility of the government’s key 

witness.” Mr. Schuelke’s Report at 1. 

It is not an overstatement to say that the dramatic events 

during and after the Stevens trial, and particularly the 

government’s decision to reverse course and move to vacate the 

verdict, led to a continuing national public discourse on 

prosecutorial misconduct and whether and what steps should be 

taken to prevent it. Withholding the Report from the public and 

leaving the public with only the information from the trial and 

immediate post-trial proceedings would be the equivalent of 

giving a reader only every other chapter of a complicated book, 

distorting the story and making it impossible for the reader to 

put in context the information provided. The First Amendment, 

the public, and our system of justice demand more. 

I. Introduction 

A. The Court’s November 21, 2011 Order 

On April 7, 2009, in response to a series of allegations 

and confirmed instances of prosecutorial misconduct during and 

following the five-week trial of U.S. Senator Theodore F. 
   

5 

Stevens (“the Stevens trial”), the Court appointed Henry F. 

Schuelke, III, to investigate and prosecute such criminal 

contempt proceedings as may be appropriate against the six 

Department of Justice attorneys responsible for the prosecution 

of Senator Stevens (“the subject attorneys”). See Order 

Appointing Henry F. Schuelke, United States v. Stevens, No. 08-

cr-231 (D.D.C. Apr. 7, 2009) (“April 7, 2009 Order”). 

On November 21, 2011, the Court issued an Order indicating, 

inter alia, that Mr. Schuelke had informed the Court that his 

investigation was concluded and had submitted a five-hundredpage report to the Court in camera. Order Regarding Report of 

Henry F. Schuelke, III, and Setting Forth Instructions for 

Further Proceedings at 12 (“November 21, 2011 Order”). The 

Court’s Order went on to note that based on their exhaustive 

investigation, Mr. Schuelke and his esteemed colleague, Mr. 

William B. Shields, had concluded that the investigation and 

prosecution of Senator Stevens were “permeated by the systematic 

concealment of significant exculpatory evidence which would have 

independently corroborated [his] defense and his testimony, and 

seriously damaged the testimony and credibility of the 

government’s key witness.” Id. at 3 (citing Mr. Schuelke’s 

Report at 1). The Court then concluded: 

While providing the public with the full results of 

Mr. Schuelke’s investigation has been and remains the 

Court’s intent, in view of the Amended Protective 
   

6 

Order entered in these proceedings on December 13, 

2009, and this Circuit’s holding in In re North, 16 

F.3d 1234 (D.C. Cir. 1994), the Court has determined 

that Mr. Schuelke’s complete report should not be made 

public at least until the Department of Justice has 

had the opportunity to review the report. The Court 

has further determined that it is appropriate to 

afford the subject attorneys and Senator Stevens’s 

attorneys the opportunity to review the report, under 

the terms and conditions set forth [in the Order]. 

The Court will then consider any objections to making 

Mr. Schuelke’s Report public[.] 

 

Id. at 7. 

B. The Pleadings Filed in Response to the Court’s 

November 21, 2011 Order 

In response to the Court’s November 21, 2011 Order, the 

Department of Justice filed a Motion to File On Public Docket 

the Notice of Department of Justice Regarding Materials 

Referenced in Mr. Schuelke’s Report. The Court granted that 

motion on January 9, 2012. The Department of Justice’s Notice 

advised the Court that it “does not intend to file a motion 

regarding Mr. Schuelke’s report” and that “[t]he government does 

not contend that there is any legal prohibition on the 

disclosure of any references in Mr. Schuelke’s report to grand 

jury material, court authorized interceptions of wire 

communications, or any sealed pleadings or transcripts that have 

now been unsealed.” Notice of Dep’t of Justice Regarding 

Materials Referenced in Mr. Schuelke’s Report, at 1-2 (“DOJ 

Notice”). In addition, the Department of Justice informed the 

Court that it was not asserting any deliberative process or 
   

7 

attorney-work product privilege with respect to the information 

contained in Mr. Schuelke’s Report. Id. at 2. 

Each of the six subject attorneys filed notices, motions 

and/or memoranda of law in response to the Court’s November 21, 

2011 Order.4

 Two of the subject attorneys informed the Court 

that they either agree or do not object to the public release of 

the Report. See Brenda Morris Concurs with the Court’s Intent, 

as Stated in its November 21, 2011 Order, to Release the Full 

Report (“Morris Submission”) and Sealed Notice filed by William 

M. Welch II (“Welch Notice”). Two of the subject attorneys 

filed motions to seal the Report. See Motion to Permanently 

Seal the Report filed by Edward P. Sullivan (“Sullivan Motion”) 

and Motion Opposing Public Release of Report by Henry F. 

Schuelke, III filed by Nicholas Marsh (“Marsh Motion”). 

Finally, two of the subject attorneys filed notices or memoranda 

opposing release of the Report. See Joseph W. Bottini’s 

Submission in Response to the Court’s November 21, 2011 Order 

(“Bottini Submission”) and Memorandum of Law Opposing 

Publication of the Schuelke Report filed by James Goeke (“Goeke 

Memorandum”). These four pleadings opposing release raise 

overlapping objections and arguments against publicly releasing 

                                                            

4

 One of the subject attorneys, Nicholas Marsh, died on September 

26, 2010, while Mr. Schuelke’s investigation was ongoing. A 

pleading was filed on behalf of Mr. Marsh’s estate, which the 

Court will refer to as Mr. Marsh’s pleading. 
   

8 

the Report, and the Court will therefore analyze and discuss 

them collectively as the “opposing attorneys’” pleadings and/or 

arguments.5 Specifically, the opposing attorneys argue that 

(1) because Mr. Schuelke’s investigation was a “grand jurystyle” investigation, it should be bound by the grand jury 

secrecy rules and precedent, particularly where, as here, the 

investigating body is not indicting or recommending criminal 

prosecution (and therefore the allegations will not be subject 

to adversarial proceedings); (2) the Court should not follow the 

D.C. Circuit’s approach to releasing the Independent Counsel’s 

report in In re North, 16 F.3d 1234 (D.C. Cir. 1994) (“North”), 

or, if the Court does follow that approach, the Court should 

conclude that the factors identified in that case do not weigh 

                                                            

5

 This is not to say that the pleadings are equally comprehensive 

or that each of the opposing attorneys made all of the same 

arguments. Compare, e.g., the twenty-two-page Sullivan Motion 

(including extensive case law and analysis) and thirteen-page 

Marsh Motion (including considerable case law and analysis) with

the two-page Bottini Submission (citing no legal authority) and 

the four-page Goeke Memorandum (citing three cases with little 

to no analysis). Although four of the six subject attorneys 

noted their opposition to releasing the Report, only two of them 

strenuously object and raise legal bases for withholding the 

Report from the public. Nevertheless, because the general 

objections to publicly releasing the Report are common to each 

of the pleadings and all four opposing attorneys seek the same 

relief, i.e., keeping the Report from the public, the Court will 

consider the pleadings collectively. It is important to make 

clear, however, that at times the Court is attributing all of 

the arguments made to all four of the opposing attorneys, where 

in most instances the argument, and certainly any analysis, were 

in reality only proffered by one and sometimes two of the 

opposing attorneys. 
   

9 

in favor of releasing Mr. Schuelke’s Report; and (3) there is no 

First Amendment right of access to Mr. Schuelke’s Report. See,

e.g., Sullivan Motion at 6, 12, 17; Marsh Motion at 5, 8, 10-11. 

Finally, one entity filed a memorandum urging the Court to 

release the Report (1) in view of the highly public nature of 

the Stevens trial, the First Amendment right to access these 

proceedings and the common law right to access judicial records; 

and (2) because if the Court were to consider the North factors, 

those factors weigh heavily in favor of release. See Memorandum 

in Support of Public Access to Mr. Schuelke’s Report filed by 

Williams & Connolly LLP (“Stevens Memorandum”).6,7

Upon careful consideration of the various points and 

authorities raised for and against public disclosure of Mr. 

Schuelke’s Report, the relevant statutory and case law, the 

entire record in the Stevens proceedings, and the highly unique 

circumstances present in this case, and for the reasons 

discussed below, the Court concludes that (1) the public has an 

overriding and compelling right to access the Report, and that 

                                                            

6

 Senator Stevens died on August 9, 2010, while Mr. Schuelke’s 

investigation was ongoing. The attorneys at Williams & Connolly 

who represented Senator Stevens throughout the Stevens

proceedings filed a pleading, which the Court will refer to as 

Senator Stevens’s pleading. 

7

 In addition to the pleadings already discussed, one individual 

or entity filed a motion to modify Mr. Schuelke’s Report. See

Motion for Modifications to Report filed by Bill J. Allen. That 

motion was later withdrawn. Notice of Bill J. Allen Regarding 

Mr. Schuelke’s Amended Report. 
   

10 

right is protected by the First Amendment; (2) Mr. Schuelke’s 

investigation differed in significant respects from a grand jury 

proceeding and is not bound by the grand jury secrecy rules, and 

moreover the reasons underlying the secrecy of grand jury 

proceedings are for the most part not relevant in this case; and 

(3) the D.C. Circuit’s approach in North is instructive, and the 

factors identified in that case as relevant to determining 

whether to publicly release a special prosecutor’s report 

overwhelmingly counsel in favor of publicly releasing the Report 

under these circumstances. Accordingly, the Court will order 

Mr. Schuelke to file his Report on the public docket. In order 

to address any claimed prejudice to the subject attorneys, 

however, the Court will first afford them another opportunity to 

submit objections or comments to Mr. Schuelke to be published as 

addenda to the Report, similar to the process followed in North

and subsequent cases.8 

                                                            

8

 The Court notes that at least two of the opposing attorneys 

imply in their pleadings that they were not “invited” to comment 

on the substance of the Report. See Marsh Motion at 11 (“We do 

not understand the Court’s order to invite comments on the 

substance of the report and we do not undertake that effort 

here.”); Goeke Memorandum at 3 (“While we understand that the 

Court’s November 21, 2011 Order did not invite Mr. Goeke and the 

other government attorneys to rebut the substance of the 

Schuelke Report . . . .”). The Court’s November 21, 2011 Order, 

however, specifically and explicitly provided that opportunity. 

See November 21, 2011 Order at 10-11 (“It is further ORDERED 

that any other individual seeking to withhold from the public 

information contained in Mr. Schuelke’s Report shall file a 

motion under seal, and, if appropriate, any comments or factual 
   

11 

II. Discussion 

A. The First Amendment Right of Access to Judicial 

Proceedings 

The First Amendment to the United States Constitution 

provides the public with a right of access to judicial 

proceedings where (i) “the place and process have historically 

been open to the press and general public”; and (ii) “public 

access plays a significant positive role in the functioning of 

the particular process in question.” Press-Enterprise Co. v. 

Sup. Ct. of Cal. (“Press-Enterprise II”), 478 U.S. 1, 8 (1986); 

see also Press-Enterprise Co. v. Sup. Ct. of Cal. (“PressEnterprise I”), 464 U.S. 501, 505-10 (1984); Globe Newspaper Co. 

v. Sup. Ct. for Norfolk Cnty., 457 U.S. 596, 605-06 (1982); 

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573-74 

(1980). 

1. Criminal Trials – Including the Stevens Trial – Have 

Historically Been Open to the Public 

a. Relevant Case Law 

The right of access is not limited to the criminal trial 

itself, but extends to many pre- and post-trial documents and 

proceedings. See, e.g., Press-Enterprise II, 478 U.S. at 10-13 

(First Amendment right of access to adversarial pre-trial 

preliminary hearings); Press-Enterprise I, 464 U.S. at 510-11 

                                                                                                                                                                                               

information regarding the Report, by no later than January 6, 

2012, and shall provide the basis and nature of the relief 

sought.”) (emphasis added). 
   

12 

(First Amendment right to access voir dire proceedings); United 

States v. Ignasiak, Nos. 09-10596, 09-16005, and 10-11074, 2012 

WL 149314, *15-16 (11th Cir. Jan. 19, 2012) (First Amendment 

right of access to government’s post-trial pleading revealing 

impeachment information of one of its key witnesses where 

government argued that the witness’s privacy interest justified 

keeping the information under seal); In re Search Warrant for 

Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th 

Cir. 1988) (First Amendment right of access to documents 

supporting search warrants); Applications of Nat’l Broad. Co. v. 

Presser, 828 F.2d 340, 344-45 (6th Cir. 1987) (First Amendment 

right of access to pretrial documents); CBS, Inc. v. U.S. Dist. 

Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825-26 (9th Cir. 

1985) (First Amendment right of access to post-trial documents 

regarding potential sentence reduction); Associated Press v. 

U.S. Dist. Ct. for Cent. Dist. of Cal., 705 F.2d 1143, 1145 (9th 

Cir. 1983) (First Amendment right of access to pretrial 

documents); In re Access to Jury Questionnaires, No. 10-SP-1612, 

2012 WL 140425, *4-5 (D.C. Jan. 19, 2012) (First Amendment right 

of access to written juror questionnaires). 

Although First Amendment access to criminal proceedings is 

not absolute, the standard to overcome the presumption of 

openness is a demanding one: 
   

13 

The presumption of openness may be overcome only by an 

overriding interest based on findings that closure is 

essential to preserve higher values and is narrowly 

tailored to serve that interest. The interest is to 

be articulated along with findings specific enough 

that a reviewing court can determine whether the 

closure order was properly entered. 

Press-Enterprise I, 464 U.S. at 510; see also United States v. 

Brice, 649 F.3d 793, 796-97 (D.C. Cir. 2011) (assuming without 

deciding that the First Amendment affords access to material 

witness proceedings but upholding trial court’s closure of the 

proceedings, where opening such proceedings would reveal 

“private and painful” information related to then-juvenile 

victims’ physical and mental health, constitute a “grotesque 

invasion of the victims’ privacy[,]” and trial court made 

finding that no alternatives to closure could protect the 

compelling privacy interests). 

b. The Public Nature of the Stevens Trial 

As noted above, criminal trials have historically been open 

to the public. See, e.g., Globe Newspaper Co., 457 U.S. at 603-

06; Richmond Newspapers, 448 U.S. at 564-74. The Stevens trial 

was certainly no exception. In fact, recognizing from the 

outset the significant public interest in the case, the Court 

took extensive steps to ensure that members of the public and 

the media had access to all aspects of the proceedings.9

 See, 

                                                            

9

 The Supreme Court has recognized that the public may obtain its 

access to judicial proceedings through the media. See Richmond 
   

14 

e.g., Order, Stevens, No. 08-231 (Sept. 19, 2008) (setting aside 

reserved seats in the courtroom for members of the public and 

the media as well as providing an “overflow” courtroom with live 

audio and video transmittal of the proceedings). 

The public’s interest in and right to access the Stevens

trial was not merely a theoretical one. Rather, the trial 

received nearly unprecedented media coverage. By the Court’s 

estimation, for the 25 days of trial (including jury selection 

and deliberation), a total of 51 stories about the Stevens case 

ran in the front sections of the Washington Post and the New 

York Times. It is important to note, as the memorandum filed by 

Williams and Connelly points out, that this media attention was 

welcomed and even fostered by the prosecutors. See Stevens 

Memorandum at 1-2. The government issued a press release on the 

day it indicted Senator Stevens, and Matthew Friedrich, the 

Acting Assistant Attorney General for the Criminal Division, 

held a press conference to proclaim the news. See Press 

                                                                                                                                                                                               

Newspapers, 448 U.S. at 572-73 (“Instead of acquiring 

information about trials by firsthand observation or by word of 

mouth from those who attended, people now acquire it chiefly 

through the print and electronic media. In a sense, this 

validates the media claim of functioning as surrogates for the 

public. While media representatives enjoy the same right of 

access as the public, they often are provided special seating 

and priority of entry so that they may report what people in 

attendance have seen and heard. This ‘contribute[s] to public 

understanding of the rule of law and to comprehension of the 

functioning of the entire criminal justice system . . . .’” 

(quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 587 

(1976) (Brennan, J., concurring in judgment))). 
   

15 

Release, U.S. Dep’t of Justice, U.S. Senator Indicted on False 

Statement Charges (July 29, 2008), available at

http://www.justice.gov/opa/pr/2008/July/08-crm-668.html (last 

visited Feb. 6, 2012); Senator Ted Stevens Indictment, C-Span 

Video Library (July 29, 2008), http://www.cspanvideo.org/program/280113-1 (accessed by searching “Ted 

Stevens Indictment” and limiting the date range to July 29, 

2008) (last visited Feb. 6, 2012). The Department of Justice 

posted each day’s trial exhibits on its website. On the day of 

the verdict, Mr. Friedrich stood with the trial team outside the 

courthouse and pronounced to the television cameras that “[t]he 

Department is proud of this team, not only for this trial, but 

for the investigation that led to it.” Senator Stevens Verdict 

News Conference Tr. at 00:03:23, C-Span Video Library (Oct. 27, 

2008), http://www.c-spanvideo.org/appearance/554818464 (last 

visited Feb. 6, 2012). 

The public’s interest in the Stevens trial did not end 

after the verdict, nor did this Court’s efforts to protect that 

interest. Two months after the verdict, when the government 

sought to seal a complaint alleging prosecutorial misconduct 

filed by the FBI agent who had co-led the investigation of 

Senator Stevens, the Court issued an opinion concluding that the 

public had a First Amendment right to access the FBI agent’s 

post-trial complaint and the government’s pleadings related 
   

16 

thereto. See United States v. Stevens, Crim. No. 08-231 (EGS), 

2008 WL 8743218, *8 (D.D.C. Dec. 19, 2008). Following the D.C. 

Circuit’s decision in Washington Post v. Robinson, the Court 

specifically found that access to the agent’s complaint and any 

resulting proceedings would be likely to serve the important 

function of monitoring prosecutorial misconduct, especially 

where motions made during the trial raised the same or similar 

allegations as those in the agent’s complaint, and the complaint 

specifically included allegations of such misconduct. Id. 

(citing Robinson, 935 F.2d at 288). As discussed infra, the 

same conclusion applies to Mr. Schuelke’s Report. 

c. Mr. Schuelke’s Report is Related to the Stevens

Trial 

The opposing attorneys argue that there is no First 

Amendment right of access to Mr. Schuelke’s Report because it is 

an investigative document and there is no “unbroken, 

uncontradicted history” of access to such reports, which are the 

equivalent of grand jury materials to which the First Amendment 

does not provide a right of access. See Sullivan Motion at 20-

21; Marsh Motion at 10. The opposing attorneys’ arguments based 

on grand jury secrecy are discussed infra Part II.B. As for 

their contention that the First Amendment does not provide 
   

17 

access to the Report because it is an investigatory document 

unrelated to the Stevens trial, that argument is misplaced.10

Mr. Schuelke’s Report relates and pertains to the Stevens

prosecution, as did the FBI agent’s post-trial complaint 

alleging prosecutorial misconduct in the investigation and trial 

of Senator Stevens. Rather than moving to dismiss the 

indictment with prejudice, had the government filed a notice or 

other pleading with the Court informing the Court that the 

government had discovered post-trial that the prosecution team 

had committed additional Brady violations, the Court would have 

held an evidentiary hearing or otherwise taken steps to learn 

the extent of the misconduct and determine whether sanctions or 

other remedies, including criminal contempt proceedings, were 

                                                            

10 Nor is it significant that the clerk’s office created a 

miscellaneous case number for filings in these contempt 

proceedings. This administrative act has no bearing on whether 

the Report is a judicial document relating to the Stevens case, 

which, of course, it is. In fact, this is precisely the 

position taken by two of the subject attorneys in the Court of 

Appeals when they appealed this Court’s decision related to a 

finding of civil contempt. See In re Contempt Finding in United 

States v. Stevens, Case No. 10-5372 (D.C. Cir.), Motion to 

Include District Court Docket in United States v. Stevens, 08-

cr-231 (D.D.C.), in the Record on Appeal (“Following its 

decision to hold Appellants in contempt, the District Court 

created a separate docket, In re Contempt Finding in United 

States v. Stevens, 09-mc-273-EGS (D.D.C.), for further contempt 

proceedings, which did not include entries for orders, filings, 

and transcripts that are at the heart of the contempt finding. . 

. . Only by including the docket entries in United States v. 

Stevens can this Court have ready access to all of the 

information necessary to render a full and fair decision in this 

appeal.”). The D.C. Circuit affirmed this Court’s decision on 

December 9, 2011. 663 F.3d 1270 (D.C. Cir. 2011). 
   

18 

appropriate. The public would certainly have enjoyed a First 

Amendment right of access to those proceedings, under the wellestablished precedent discussed above. However, in view of the 

government’s unopposed motion to dismiss the indictment and 

because Senator Stevens had a liberty interest at stake, it 

would have been inappropriate to defer ruling on the 

government’s motion in order to embark on such proceedings. 

Accordingly, during a public hearing on the government’s 

motion held in the Stevens case, the Court appointed Mr. 

Schuelke to investigate and prosecute any criminal contempt 

proceedings as may be appropriate. See Transcript of Hearing 

46:12 – 47:15, Stevens, No. 08-231 (April 7, 2009) (“April 7, 

2009 Tr.”). In appointing Mr. Schuelke, the Court explicitly 

stated that “the Court has an obligation to determine what 

happened here and respond appropriately, and I intend to do so.” 

Id. 47:20-22. The Court also made clear that the public would 

have access to that information. See id. 46:9-11. (“This court 

has an independent obligation to ensure that any misconduct is 

fully investigated and addressed in an appropriate public 

forum.”). Only after appointing Mr. Schuelke did the Court 

grant the government’s motion to dismiss. Id. 48:17-20. 

After a highly publicized trial and months of post-trial 

proceedings during which the prosecution team repeatedly denied 

any wrongdoing and zealously defended the guilty verdict it had 
   

19 

obtained, the opposing attorneys cannot now circumvent the First 

Amendment and any public accountability by relying on the 

government’s eleventh-hour motion to dismiss the indictment with 

prejudice.11 The First Amendment right of access “serves an 

important function of monitoring prosecutorial or judicial 

misconduct.” Robinson, 935 F.2d at 288 (citing Press-Enterprise 

II, 478 U.S. at 8; Globe Newspaper Co., 457 U.S. at 605-06). 

That includes a right of access to Mr. Schuelke’s Report under 

the circumstances of this case. 

2. Access to Mr. Schuelke’s Report Will Play a 

Significant Positive Role in Informing the Public 

Regarding Criminal Trials in General and the Stevens

Case in Particular 

The second step in the First Amendment analysis, whether 

access to the proceeding or document will play a significant 

role in informing the public regarding the matter at issue, is 

also satisfied here. As the Court stated during the April 7, 

2009 hearing on the government’s motion to dismiss the 

indictment, this was a case with many “dramatic and 

unfortunately many shocking and disturbing moments.” April 7, 

2009 Tr. at 3:14-16. Frequently during the trial, the Court was 

                                                            

11 In fact, just two months before the government’s dramatic move 

to dismiss the indictment, the prosecution team told the Court 

that there was no need for any post-trial discovery and that 

“the government is confident that [its response to the 

Defendant’s post-trial motions] will resolve the need for 

further inquiry into the allegations as they relate to the trial 

and the convictions of the Defendant.” See Gov’t’s Proposed 

Scheduling Order at 1, Stevens (Feb. 6, 2009). 
   

20 

presented with persuasive arguments by the defense that the case 

should be dismissed or a mistrial declared because of 

prosecutorial misconduct. See, e.g., Senator Stevens’s Mot. to 

Dismiss Indictment or for Mistrial, Stevens, No. 08-231 (Sept. 

28, 2008); Def.’s Emergency Mot. to Dismiss Case or for Mistrial 

Due to Gov’t’s Continuing Brady Violations, Stevens (Oct. 2, 

2008); Def.’s Mot. to Dismiss Case or for Mistrial Due to 

Gov’t’s Failure to Comply with Fed. R. Crim. Proc. 16(a)(1)(E), 

Stevens (Oct 8, 2008). 

In response to those arguments, the subject attorneys 

repeatedly responded that the mistakes were “unintentional,” 

“inadvertent,” and/or “immaterial.” For example, when the 

government failed to produce the exculpatory grand jury 

testimony of prospective government witness Rocky Williams, the 

prosecutors claimed that the testimony was immaterial. See

Gov’t’s Opp’n to Def.’s Mot. to Dismiss or for New Trial, 

Stevens (Sept. 29, 2008). When the government sent Mr. Williams 

back to Alaska without first advising the defense or the Court, 

the prosecutors asserted that they were acting in “good faith.” 

Trial Transcript, Oct. 2, 2008, p.m., at 42. When government 

counsel told the Court that the government’s key witness, Bill 

Allen, had not been re-interviewed the day before the hearing on 

its Brady disclosures, this was a “mistaken understanding.” 

Gov’t’s Opp’n to Def.’s Motion to Dismiss Due to Alleged 
   

21 

Misconduct at 15 (Oct. 6, 2008). When the government failed to 

turn over exculpatory statements from Dave Anderson, another 

government witness, the prosecutors claimed that the statements 

were immaterial. Trial Transcript, Oct. 8, 2008, p.m. at 58, 

62, 64, 67. When the government failed to turn over a grand 

jury transcript containing exculpatory information, the 

prosecutors claimed that it was “inadvertent.” Trial 

Transcript, Oct. 6, 2008, p.m. at 95. When the government used 

“business records” that the government knew to be false, the 

prosecutors said that it was unintentional. Trial Transcript, 

Oct. 8, 2008, p.m. at 76. When the government failed to produce 

the bank records of Bill Allen and then surprised the defense at 

trial with Bill Allen’s check, it claimed that this, too, was 

immaterial to the defense. Trial Transcript, Oct. 8, 2008, a.m. 

at 3. 

Notwithstanding mounting evidence to the contrary, the 

Court accepted the prosecutors’ representations and declined to 

dismiss the case or declare a mistrial (though the Court did 

take other steps to ameliorate the prejudice to the defense). 

Had the Court known of the misconduct and the information 

concealed by the government, as documented in the Schuelke 

Report, those decisions would have been different. 

As the Court noted in its November 21, 2011 Order, Mr. 

Schuelke and Mr. Shields found that the investigation and 
   

22 

prosecution of Senator Stevens were “permeated by the systematic 

concealment of significant exculpatory evidence which would have 

independently corroborated [his] defense and his testimony, and 

seriously damaged the testimony and credibility of the 

government’s key witness.” See Nov. 21, 2011 Order at 3 

(quoting Mr. Schuelke’s Report at 1). Mr. Schuelke and Mr. 

Shields found that at least some of this concealment was willful 

and intentional, and related to many of the issues raised by the 

defense during the course of the Stevens trial. In addition, 

they found evidence of concealment and misconduct previously 

unknown to the Court and to the defense, even after the 

government moved to dismiss the indictment. For these reasons, 

access to the Report would certainly play a positive role in 

informing the public of the flaws in the criminal trial of 

Senator Stevens.12 

                                                            

12 It is also significant to this analysis that the information 

revealed as a result of the government’s motion to dismiss the 

indictment and vacate the verdict in the Stevens case, and this 

Court’s decision to appoint Mr. Schuelke to investigate the 

subject attorneys, had dramatic implications for two other 

individuals convicted by the Public Integrity Section as part of 

the “Polar Pen Investigation” of Alaska political corruption. 

Peter Kott, former Speaker of the Alaska House of 

Representatives, and Victor H. Kohring, a former member of the 

Alaska House of Representatives, had been convicted and were 

serving prison sentences on bribery and extortion-related 

charges when the government moved to dismiss the Stevens case 

and the Court appointed Mr. Schuelke. Because of these events, 

in April 2009, Mr. Kott and Mr. Kohring moved for release from 
   

23 

Moreover, access to the Report will also play a positive 

role in the public’s understanding of the Court’s decision with 

respect to criminal contempt proceedings in this case. As noted 

in the Court’s November 21, 2011 Order, despite his findings of 

significant, widespread, and at times intentional misconduct, 

Mr. Schuelke is not recommending any prosecution for criminal 

contempt. See Nov. 21, 2011 Order at 4. This is because in 

order to prove criminal contempt beyond a reasonable doubt under 

18 U.S.C. § 401(3), the contemnor must disobey an order that is 

sufficiently “clear and unequivocal at the time it is issued.” 

Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Mr. 

Schuelke concluded that no such order existed in this case. 

                                                                                                                                                                                               

custody and for disclosure of all Brady material in their own 

cases. In June 2009, the government uncovered Brady material in 

both cases and asked the Ninth Circuit to remand the cases to 

the District Court of Alaska and to immediately release Kott and 

Kohring on personal recognizance. The Ninth Circuit granted the 

requested relief. See Order, U.S. v. Kohring, Case No. 08-30170 

(9th Cir. June 10, 2009) Doc. No. 41; Order, U.S. v. Kott, Case 

No. 07-30496 (9th Cir. June 10, 2009) Doc. No. 59. In March 

2011, the Ninth Circuit found that information suppressed by the 

government in both cases was favorable and material to the 

defense and that the prosecution violated Brady and Giglio v. 

United States, 405 U.S. 150 (1972). The Court of Appeals 

vacated the convictions and remanded the cases to the District 

Court for new trials. See United States v. Kohring, 637 F.3d 

895 (9th Cir. 2011); United States v. Kott, 423 F. App’x 736 

(9th Cir. 2011). On October 21, 2011, both men pleaded guilty 

and were sentenced to time served. Richard Mauer, Corruption 

Trials Ended; Kott, Kohring Plead Guilty, Sentenced to Time 

Served, ANCHORAGE DAILY NEWS (Oct. 22, 2011). 
   

24 

Rather, the Court accepted the repeated representations of the 

subject prosecutors that they were familiar with their discovery 

obligations, were complying with those obligations, and were 

proceeding in good faith. See Nov. 21, 2011 Order at 4-5. 

Having appointed Mr. Schuelke to “investigate and prosecute” 

criminal contempt proceedings as appropriate, the Court accepts 

his findings and conclusions. The public can neither understand 

the basis for Mr. Schuelke’s findings and conclusions, however, 

nor the basis for the Court’s decision to accept those findings 

and conclusions, without access to the Report. 

Further, it is not insignificant to the analysis of the 

public’s right of access to Mr. Schuelke’s Report that the 

public bore the cost not only of the Stevens trial and posttrial proceedings, which resulted in the government seeking 

permission to dismiss the indictment with prejudice and vacate 

the verdict, but also the costs associated with Mr. Schuelke’s 

investigation, and the costs associated with the subject 

attorneys’ legal representation throughout that investigation. 

See, e.g., Joe Palazzo, A Long Career Near the Spotlight But 

Rarely In It, MAIN JUSTICE (July 17, 2009), 

http://www.mainjustice.com/2009/07/17/a-long-career-near-thespotlight-but-rarely-in-it/ (noting that the federal judiciary 

was paying Mr. Schuelke for the investigation (at a “fraction” 

of his usual rate) and also paying the lawyers representing the 
   

25 

subject attorneys); Brad Heath, Taxpayers Pay to Defend 

Prosecutors in Ted Stevens Case, USA TODAY, Feb. 2, 2012. 

It would be a disservice to the public to require the 

public to bear these costs, only to deny it the right to access 

the previously undisclosed facts relevant to the public trial of 

Senator Stevens and uncovered by Mr. Schuelke’s investigation. 

In fact, the government recently made a similar argument in 

successfully opposing a defendant’s motion to seal a consent 

judgment. See Plaintiff’s Memorandum of Points and Authorities 

in Opposition to the Defendant’s Motion to Seal Document, United 

States v. Harry L. Thomas, 06-cv-497 (DAR), Doc. No. 30, at 2-3 

(“Since this debt involves guarantees by the United States paid 

on the original promissory notes, it involves the public funds 

used to pay the guarantees. The public must have access to the 

information it needs to appraise the Government’s work in 

protecting and preserving these public funds and in implementing 

the public policy behind guaranteed student loans.”). 

Finally, access to the Report will play a significant role 

in the public’s understanding of criminal trials and safeguard 

against future prosecutorial misconduct, considerations the 

courts have consistently found weigh heavily in favor of the 

right of access. See, e.g., Press-Enterprise II, 478 U.S. at 12 

(stating that public access to criminal proceedings, 

particularly those where no jury is present, provides a 
   

26 

“safeguard against the corrupt or overzealous prosecutor”);

Globe Newspaper Co., 457 U.S. at 606 (“Public scrutiny of a 

criminal trial enhances the quality and safeguards the integrity 

of the factfinding process, with benefits to both the defendant 

and to society as a whole.”); Richmond Newspapers, 448 U.S. at 

569 (finding that open criminal trials “discouraged [ ] the 

misconduct of participants”); Robinson, 935 F.2d at 288 (“The 

first amendment protects public access to [] court proceedings . 

. . and serves an important function of monitoring prosecutorial 

or judicial misconduct.” (citations omitted)). 

The Stevens case has come not only to symbolize the dangers 

of an overzealous prosecution and the risks inherent when the 

government does not abide by its discovery obligations, but it 

has also been credited with changing the way other courts, 

prosecutors, and defense counsel approach discovery in criminal 

cases. See, e.g., Amanda Coyne, Could Botched Ted Stevens 

Prosecution Prompt Federal Legal System Reform?, ALASKA DISPATCH

(Nov. 28, 2011), available at

http://www.alaskadispatch.com/article/could-botched-ted-stevensprosecution-prompt-federal-legal-system-reform (recognizing 

attention the Stevens case has received in Washington, D.C., and 

around the country); David Ingram, Ted Stevens Became a Symbol 

for Prosecutorial Misconduct, THE BLOG OF LEGAL TIMES (Aug. 10, 

2010, 4:22 PM), http://legaltimes.typepad.com/blt/2010/08/ted-
   

27 

stevens-became-a-symbol-for-prosecutorial-misconduct.html 

(noting that Stevens has drawn “national attention to the 

obligations of prosecutors to turn over exculpatory evidence”); 

DLA Piper’s Zeidenberg on Prosecutorial Misconduct, Stevens and 

Lindsey, 25 CORP. CRIME REPORTER 48 (Dec. 13, 2011), available at

http://corporatecrimereporter.com/zeidenberg12132011.htm 

(stating that judges are taking allegations of prosecutorial 

misconduct more seriously as a result of Stevens); Carrie 

Johnson, Court Ruling Reignites Debate Over Sharing Evidence, 

NPR (Jan. 12, 2012), available at 

http://www.npr.org/2012/01/12/145102823/court-ruling-reignitesdebate-over-sharing-evidence (“Ever since the Ted Stevens 

fiasco, there have been a lot of nervous people in the Justice 

Department — all worried about the consequences of making a bad 

decision.”). 

In revealing what happened in the Stevens case, Mr. 

Schuelke’s Report sheds significant light on these important 

issues. 

3. The Opposing Attorneys Have Made No Showing of a 

Compelling Interest that Necessitates Closure, Nor 

Have They Shown that No Alternatives to Closure Will 

Adequately Protect Any Such Interest 

As noted supra, the First Amendment right of access to 

criminal proceedings is not absolute, but the presumption of 

openness is overcome only by a compelling interest and a showing 
   

28 

that no alternatives to closure can adequately protect that 

interest. See Press-Enterprise I, 464 U.S. at 510. The 

opposing attorneys have made no such showing in this case. 

While objecting generally to release of the Report as unfair and 

prejudicial to the opposing attorneys’ privacy and reputational 

interests, those attorneys have not specified any compelling 

interest that would meet their high burden to justify keeping 

the Report under seal.13 See, e.g., Press-Enterprise II, 478 

U.S. at 14-15 (holding that state interest in preventing 

inflammation of public opinion against defendant, and informing 

potential jurors of exculpatory information wholly inadmissible 

at the actual trial, did not justify closing preliminary 

hearing); Globe Newspaper Co., 457 U.S. at 607-10 (concluding 

that state interests in protecting minor victims of sex crimes 

from trauma and embarrassment and in encouraging victims to come 

forward and testify did not justify mandatory rule closing 

criminal trials during testimony of such minor victims); 

Richmond Newspapers, 448 U.S. at 580-81 (holding state interest 

in completing trial proceedings for defendant, who had been 

tried four times, in part because prospective jurors were 

exposed to extensive media coverage, insufficient to close trial 

                                                            

13 Nor have any of the opposing attorneys contended that the 

Report is factually inaccurate, with the exception of Mr. 

Bottini, who asserted that the Report “contains inaccuracies” 

but identified none. Bottini Submission at 2. 
   

29 

proceedings); Robinson, 935 F.2d at 290-92 (finding state 

interests in maintaining secrecy of grand jury proceedings, not 

compromising ongoing criminal investigation, and protecting 

safety of defendant and his family did not justify sealing plea 

agreement when defendant’s involvement in case, and ongoing 

cooperation with police, were already within the public 

knowledge); cf. Brice, 649 F.3d at 796-97 (assuming without 

deciding that First Amendment affords access to material witness 

proceedings but upholding trial court’s closure of the 

proceedings, where opening such proceedings would reveal 

“private and painful” information related to then-juvenile 

victims’ physical and mental health, constitute a “grotesque 

invasion of the victims’ privacy[,]” and trial court made 

finding that no alternatives to closure could protect the 

compelling privacy interest (internal citation and quotation 

marks omitted)). 

Here, the identity of the subjects was known from the 

outset of the investigation, the matters under investigation 

were largely known to the public from the outset and arose from 

the subject attorneys’ conduct during the proceedings in a 

highly-publicized criminal trial, and some of the subject 

attorneys have themselves made statements to the media regarding 

Mr. Schuelke’s investigation. Under these circumstances, the 

opposing attorneys have not established an interest sufficiently 
   

30 

compelling to justify withholding the Report.14 Moreover, as 

discussed below, the opposing attorneys’ arguments that the 

First Amendment right of access is inapplicable because Mr. 

Schuelke’s investigation was akin to a grand jury proceeding are 

unavailing. 

B. The Nature of the Schuelke Investigation 

The opposing attorneys’ principal argument against publicly 

releasing Mr. Schuelke’s Report is that the investigation 

conducted by Mr. Schuelke was “substantially the same as a grand 

jury proceeding and should be bound by the same secrecy rules 

governing grand jury investigations.” Sullivan Motion at 6; see 

also Marsh Motion at 5; Goeke Memorandum at 1. The opposing 

attorneys maintain that the reasons underlying the grand jury 

secrecy rules are equally applicable to Mr. Schuelke’s 

investigation and that it would be unfair and prejudicial to the 

subject attorneys to release the Report when those attorneys 

will have no opportunity to challenge the Report’s findings in 

an adversarial proceeding. See, e.g., Sullivan Motion at 8-12; 

Marsh Motion at 11; Goeke Memorandum at 3. The Court will 

discuss each of these arguments in turn. 

                                                            

14 Having concluded that the public has a First Amendment right 

of access to Mr. Schuelke’s Report, the Court need not determine 

whether there is also a common law right of access to the Report 

as a judicial document. Stevens Memo at 6-8. 
   

31 

1. Grand Jury Secrecy 

Grand jury secrecy is a long-established principle central 

to our criminal justice system. See, e.g., Douglas Oil Co. v. 

Petrol Stops Northwest, 441 U.S. 211, 219 n.9 (1979) (“Since the 

17th century, grand jury proceedings have been closed to the 

public, and records of such proceedings have been kept from the 

public eye. The rule of grand jury secrecy was imported into 

our federal common law and is an integral part of our criminal 

justice system.” (internal citations omitted)). The reasons for 

such secrecy are also well-established. 

First, if preindictment proceedings were made public, 

many prospective witnesses would be hesitant to come 

forward voluntarily, knowing that those against whom 

they testify would be aware of that testimony. 

Moreover, witnesses who appeared before the grand jury 

would be less likely to testify fully and frankly, as 

they would be open to retribution as well as to 

inducements. There also would be the risk that those 

about to be indicted would flee, or would try to 

influence individual grand jurors to vote against 

indictment. Finally, by preserving the secrecy of the 

proceedings, we assure that persons who are accused 

but exonerated by the grand jury will not be held up 

to public ridicule. 

Douglas Oil, 441 U.S. at 219. For these reasons, Federal Rule 

of Criminal Procedure 6(e)(2)(B) prohibits disclosure of 

“matter[s] occurring before the grand jury.” 

 The opposing attorneys’ reliance on this principle falters, 

however, because (a) Mr. Schuelke’s investigation was not 

conducted as part of a grand jury proceeding; (b) Rule 6(e) does 
   

32 

not apply to Mr. Schuelke’s investigation; and (c) the reasons 

underlying the need for grand jury secrecy are largely 

inapplicable to Mr. Schuelke’s investigation and the resulting 

Report. 

a. Mr. Schuelke’s Investigation Did Not Include a 

Grand Jury Proceeding and Differed in Important 

Respects from a Grand Jury Proceeding 

The Fifth Amendment to the United States Constitution 

provides in part that no person can be charged with a “capital, 

or otherwise infamous” crime without a presentment or indictment 

of a Grand Jury.15 Federal Rule of Criminal Procedure 6 governs 

the grand jury process, including summoning and discharging the 

grand jurors, the requisite number of grand jurors, who may be 

present when the grand jury is in session, who may be present 

when the grand jury is voting, and the requirements and 

exceptions to grand jury secrecy. Federal grand juries are 

summoned by the United States District Court for a particular 

district, and they are administered by that court, which 

receives any indictments the grand jury returns. Fed. R. Crim. 

P. 6. Grand jurors take an oath, typically administered by the 

chief judge of the district court to which the grand jury was 

summoned. See, e.g., U.S. v. Williams, 504 U.S. 36, 47 (1992). 

                                                            

15 An individual can waive her right to an indictment by grand 

jury, in which case a prosecutor can file with the court a 

charging document known as an “Information,” which need not be 

approved or even presented to a grand jury. Fed. R. Crim. P. 

7(b). 
   

33 

This Court appointed Mr. Schuelke during the Stevens case 

to “investigate and prosecute such criminal contempt proceedings 

as may be appropriate” against the subject attorneys, pursuant 

to Federal Rule of Criminal Procedure 42(a)(2).16 April 7, 2009 

Order. Neither Mr. Schuelke, Mr. Shields, nor any of the 

individuals or subjects appeared before a grand jury in relation 

to Mr. Schuelke’s investigation. See Declaration of Henry F. 

Schuelke, III (“Schuelke Decl.”) ¶ 4. 

At least one of the opposing attorneys relies on In re 

Special Proceedings, 373 F.3d 37 (1st Cir. 2004), for the 

argument that Mr. Schuelke’s investigation was “substantially 

the same” as a grand jury proceeding. Sullivan Motion at 6. In 

In re Special Proceedings, the U.S. Court of Appeals for the 

                                                            

16 Rule 42(a)(2) provides that the court “must request that the 

contempt be prosecuted by an attorney for the government, unless 

the interest of justice requires the appointment of another 

attorney.” Fed. R. Crim. P. 42(a)(2). Where, as here, the 

government attorneys are involved or possible subjects of the 

prosecution, the court may choose to appoint a non-government 

attorney. See, e.g., In re Special Proceedings, 373 F.3d 37, 43 

(1st Cir. 2004) (upholding district court’s decision to appoint 

non-government attorney under Fed. R. Crim. P. 42(a)(2) where 

the district court had “multiple reasons for concern about 

having the government handle the matter[,]” including that the 

prosecution was a potential source of the leak being 

investigated in the contempt proceeding); see also Young v. 

United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 800-01 

(1987) (“While contempt proceedings are sufficiently criminal in 

nature to warrant the imposition of many procedural protections, 

their fundamental purpose is to preserve respect for the 

judicial system itself. As a result, courts have long had, and 

must continue to have, the authority to appoint private 

attorneys to initiate such proceedings when the need arises.”). 
   

34 

First Circuit concluded with little discussion or analysis that 

the “principal reasons for grand jury secrecy” applied with 

equal force to the special prosecutor’s investigation, and that 

“[w]hat the special prosecutor is currently doing is 

sufficiently like what a grand jury would do to make the analogy 

decisive.” 373 F.3d at 47. 

That case is of limited relevance here, however. As an 

initial matter, the Court notes that the First Circuit’s 

conclusion about the analogy between the special prosecutor and 

the grand jury was in the context of a discussion of “an 

ancillary matter” before that court, i.e., whether to unseal 

four documents and a deposition transcript.17 Id. at 46. 

Second, and more importantly, the First Circuit’s decision was 

made during an ongoing investigation, where the need for secrecy 

is more compelling. See id. at 46-47. Finally, the 

investigation in that case focused on finding the source of a 

leak that violated the district court’s protective order, and 

the scope and subjects of the investigation may not have been 

publicly known or even known to the subjects themselves, 

requiring a greater level of secrecy. See id. at 40-41. In 

                                                            

17 The principal issue before the court in In re Special 

Proceedings was a subject’s challenge to the district court’s 

appointment of a private attorney, rather than a government 

attorney, to prosecute contempt proceedings. As discussed supra

n.16, the Court of Appeals rejected the subject’s multiple 

arguments and affirmed the district court’s appointment of a 

non-government attorney. 
   

35 

this case, Mr. Schuelke’s investigation has concluded. 

Moreover, the scope and subjects of the investigation have 

always been publicly known and, as discussed infra Part 

II.B.1.c, the reasons underlying grand jury secrecy, including 

the two reasons cited by the First Circuit in In re Special 

Proceedings, i.e., “to protect the innocent against unfair 

publicity and to prevent tampering or escape by targets[,]” 373 

F.3d at 47, are largely inapplicable to the unique circumstances 

in this case. 

In the present case, not only was Mr. Schuelke’s 

investigation completely unrelated to and unaffiliated with any 

grand jury, it also differed in many significant ways from the 

grand jury process. For example, although Mr. Schuelke was 

authorized by the Court to subpoena witnesses, none of the 

subjects was subpoenaed; rather they appeared for deposition 

voluntarily. Schuelke Decl. ¶ 3. Moreover, whereas witnesses 

in the grand jury are not permitted to have their counsel 

present in the grand jury, each of the subjects and other 

witnesses deposed in this case was represented by counsel, and 

counsel not only appeared with their client at the deposition, 

but also were permitted freely to ask questions during the 

depositions. See Schuelke Decl. ¶ 3. Significantly, and unlike 

many grand jury investigations, the subjects here were provided 

with the same underlying documents and information made 
   

36 

available by the Justice Department to Mr. Schuelke, who adopted 

an open-file discovery policy. See Schuelke Decl. ¶ 2. 

Finally, not only were the subjects of Mr. Schuelke’s 

investigation publicly known from the outset – indeed, they were 

announced in open court, named in the Court’s Order appointing 

Mr. Schuelke, and widely covered in the media – but the subjects 

knew from the outset that the Court intended to make public Mr. 

Schuelke’s findings; in fact, the public’s right to know of any 

misconduct during the Stevens case was the impetus for 

appointing Mr. Schuelke. See April 7, 2009 Tr. 46:7-11 (“[T]he 

events and allegations in this case are too serious and too 

numerous to be left to an internal investigation that has no 

public accountability. This court has an independent obligation 

to ensure that any misconduct is fully investigated and 

addressed in an appropriate public forum.”); April 7, 2009 Order 

(identifying subjects); see also Neil A. Lewis, Tables Turned on 

Prosecution in Stevens Case, N.Y. TIMES, Apr. 8, 2009, at A1 

(detailing Judge Sullivan’s order to conduct an external 

investigation and naming its subjects); James Oliphant, Ted 

Stevens’ Charges Dismissed as Judge Excoriates Prosecutors, L.A.

TIMES, Apr. 8, 2009; Del Quentin Wilber, Judge Orders Probe of 

Attorneys in Stevens Case; Prosecutor Misconduct Alleged in 

Former Senator’s Trial, WASH. POST, Apr. 8, 2009, at A01. 
   

37 

b. Rule 6(e) Does Not Apply to Mr. Schuelke’s 

Investigation 

Federal Rule of Criminal Procedure 6(e) requires grand jury 

secrecy with certain exceptions.18 Because the rule governs 

grand jury proceedings, it does not apply to Mr. Schuelke’s 

investigation. Nevertheless, the opposing attorneys argue that 

because the investigation was “like” a grand jury proceeding, 

the secrecy rules should apply. At least one opposing attorney 

cites to In re Sealed Case 00-5116, 237 F.3d 657 (D.C. Cir. 

2004), for support. See Sullivan Motion at 7, n.3. This 

argument is unpersuasive. In In re Sealed Case 00-5116, the 

D.C. Circuit considered whether an investigation by the FEC had 

to be handled under seal. See 237 F.3d at 661-62. The court 

looked to the FEC’s statutory enforcement scheme and concluded: 

The plain language of these provisions and the overall 

purpose and structure of the statutory scheme create a 

strong confidentiality interest analogous to that 

protected by Federal Rule of Criminal Procedure 

6(e)(6). In both contexts, secrecy is vital “to 

protect [an] innocent accused who is exonerated from 

                                                            

18 The exceptions in the Rule providing for when grand jury 

information may be made public are not exclusive. See, e.g., In 

re Kutler, 800 F. Supp. 2d 42, 45 (D.D.C. 2011) (“Consistent 

with this principle, it has been the initiative of courts—

through the exercise of their inherent authority regarding grand 

jury records—that has shaped the development of Rule 6(e). 

Since its adoption by the Supreme Court in 1944, the rule has 

been amended to reflect ‘subsequent developments wrought in 

decisions of the federal courts.’ These amendments confirm that 

courts’ ability to order the disclosure of grand jury records 

has never been confined by Rule 6(e)’s enumerated exceptions.” 

(citation omitted)). 
   

38 

disclosure of the fact that he has been under 

investigation.” 

Id. at 667 (citations omitted). 

In this case, there is no such statutory or regulatory 

enforcement scheme requiring confidentiality. Moreover, as 

discussed supra, the subjects of the investigation, the fact 

that they were under investigation, and the matters and scope of 

the investigation have been widely publicized from the outset. 

 Next, the opposing attorneys argue that the protective 

orders entered by this Court during Mr. Schuelke’s investigation 

provide for confidentiality of the discovery material produced 

by the Department of Justice during the investigation, including 

pre-existing grand jury material covered by Rule 6(e), and 

therefore Mr. Schuelke’s Report “contains the equivalent of 

grand jury material prohibited from disclosure by grand jury 

secrecy rules.” Sullivan Motion at 8; see also Marsh Motion at 

7, 10. Fatal to the opposing attorneys’ argument, however, are 

the facts that (a) the Protective Orders entered by the Court at 

the request of the Department of Justice provided the Department 

of Justice – not the subject attorneys – certain protections 

with respect to the material it was producing to Mr. Schuelke 

and to the subject attorneys; and (b) in response to the Court’s 

November 21, 2011 Order directing the Department of Justice 

pursuant to the Amended Protective Order to file a motion if it 
   

39 

believed “any of the Material(s) or sealed pleadings or 

transcripts identified by Mr. Schuelke in his Report should be 

withheld from the public,” the Department of Justice: 

[A]dvise[d] the court that it does not intend to file 

a motion regarding Mr. Schuelke’s report. The 

government does not contend there is any legal 

prohibition on the disclosure of any references in Mr. 

Schuelke’s report to grand jury material, courtauthorized interceptions of wire communications, or 

any sealed pleadings or transcripts that have now been 

unsealed. Moreover, in order to be as cooperative as 

possible with Mr. Schuelke’s investigation, the 

Department did not withhold any information from Mr. 

Schuelke on the basis of a privilege belonging to the 

government, such as the deliberative process or 

attorney-work product privilege, and therefore asserts 

no such privilege now with respect to the information 

contained in Mr. Schuelke’s report. 

DOJ Notice at 1-2 (citing Fed. R. Crim. P. 6(e)(3)(E)(i); 18 

U.S.C. § 2517(2)) (footnote omitted). 

Accordingly, release of the Report does not violate any 

legal or procedural rules requiring confidentiality or secrecy. 

c. The Reasons Underlying Grand Jury Secrecy are 

Largely Inapplicable to Mr. Schuelke’s 

Investigation 

As cited previously, the reasons for grand jury secrecy are 

well established: 

First, if preindictment proceedings were made public, 

many prospective witnesses would be hesitant to come 

forward voluntarily, knowing that those against whom 

they testify would be aware of that testimony. 

Moreover, witnesses who appeared before the grand jury 

would be less likely to testify fully and frankly, as 

they would be open to retribution as well as to 

inducements. There also would be the risk that those 

about to be indicted would flee, or would try to 
   

40 

influence individual grand jurors to vote against 

indictment. Finally, by preserving the secrecy of the 

proceedings, we assure that persons who are accused 

but exonerated by the grand jury will not be held up 

to public ridicule. 

Douglas Oil, 441 U.S. at 218-19. 

These reasons are largely inapplicable to Mr. Schuelke’s 

investigation. First, the subjects in this matter are all 

government attorneys, and each of them knew or had reason to 

know what witnesses Mr. Schuelke would likely be interviewing or 

deposing, most of whom were other government attorneys or 

employees. As for the non-subject witnesses, because the 

subjects and scope of the investigation were publicly known from 

the outset and the investigation itself was the source of 

considerable media attention, any hesitation to “come forward 

voluntarily” could not be alleviated by secrecy. 

Second, because the subjects are government attorneys, as 

were most of the other witnesses, the Court assumes that the 

risk that these individuals would be “less likely to testify 

fully and frankly” or that they would be “open to retribution as 

well as to inducements” is minimal, regardless of the level of 

secrecy afforded by Mr. Schuelke’s investigation. Similarly, 

the risk that the subjects might flee seems remote (in fact, the 

subjects remain attorneys employed by the Department of 

Justice), as does the risk that they would try to influence Mr. 

Schuelke or Mr. Shields to recommend against prosecution. 
   

41 

Moreover, Mr. Schuelke and Mr. Shields are both well-respected 

attorneys with a wealth of experience, including prosecutorial 

experience, and highly unlikely to be susceptible to any such 

attempts to influence their decisions in this matter.19 

The final factor, protecting the accused from “public 

ridicule,” is discussed below, though it is worth noting here 

that the public has been well aware of the identity of the 

subjects from the outset. 

2. Potential Prejudice to the Subject Attorneys 

The opposing attorneys argue that grand juries may not 

accuse a person of criminal misconduct unless they return a 

valid indictment, and that grand juries may not issue reports or 

presentments if the investigation does not lead to an 

indictment. See Sullivan Motion at 9-10 (citing authorities). 

Because Mr. Schuelke and Mr. Shields are not recommending that 

                                                            

19 Mr. Schuelke served in the Judge Advocate General’s Corps, 

U.S. Army, including as a Military Judge in the U.S. Army 

Judiciary. Mr. Schuelke is also a former Assistant United 

States Attorney for the District of Columbia, and has served as 

Special Counsel to the U.S. Senate Committee on Foreign 

Relations, Special Counsel to the U.S. Senate Select Committee 

on Ethics, a member of this court’s Committee on Grievances, and 

currently serves as Special Counsel to the District of Columbia 

Commission on Judicial Disabilities and Tenure. He has 

practiced white-collar criminal defense for thirty-two years. 

Mr. Shields served as an Assistant District Attorney in the New 

York County District Attorney’s Office, and later as a Special 

Assistant Attorney General in New York, where he led 

investigations and prosecutions of health care fraud. Mr. 

Shields has practiced white-collar criminal defense for twentyfour years. 
   

42 

the subject attorneys be prosecuted for criminal contempt, the 

opposing attorneys contend that the Report should remain sealed, 

based on the same reasons that grand juries are prohibited from 

issuing reports in cases where there is no indictment. 

As the opposing attorneys point out, there are compelling 

reasons to prohibit grand juries from issuing reports in cases 

where there will not be an indictment. See Sullivan Motion at 

9-10; Marsh Motion at 11. For example, grand juries are not 

adversarial proceedings, nor are they governed by the rules of 

evidence, so the grand jury can “hear any rumor, tip, hearsay, 

or innuendo it wishes, in secret, with no opportunity for crossexamination.” In re Grand Jury Proceedings, Special Grand Jury 

89-2 (Rocky Flats Grand Jury), 813 F. Supp. 1451, 1463 (D. Colo. 

1992) (citation omitted). Moreover, “[t]he grand jury is not 

required to hear or consider evidence which would exonerate a 

target of an investigation, and the fairness of its methods is 

unreviewable.” Id. Finally, as two opposing attorneys argue, 

“a report issued by a non-indicting grand jury making 

accusations against an uncharged individual causes the 

individual to suffer public stigma and reputational damage 

without affording the individual any meaningful opportunity to 

rebut the allegations.” Sullivan Motion at 10; see also Marsh 

Motion at 11-12. 
   

43 

The Court is not insensitive to this issue and recognizes 

that Mr. Schuelke is not recommending criminal contempt 

proceedings. Nevertheless, the unique circumstances of this 

case are distinct from the concerns expressed by the opposing 

attorneys and the Rocky Flats court, and any claimed prejudice 

to the subject attorneys is further addressed by the Court’s 

decision to permit the subject attorneys to submit comments for 

publication with the Report.20 

First, although Mr. Schuelke’s investigation was not an 

adversarial proceeding, the subject attorneys were represented 

by counsel, who were permitted and did ask questions during the 

depositions of their clients. See Schuelke Decl. ¶ 3. The 

subjects were also provided access to the underlying evidence 

and therefore had the opportunity to, and did, present defenses. 

                                                            

20 One of the opposing attorneys argues that the Report should be 

permanently sealed because Rule 42 does not authorize or 

contemplate such a report. See Sullivan Motion at 21, n.10. 

That argument is unpersuasive. Rule 42 and the case law 

authorize the Court to appoint a non-government attorney to 

prosecute criminal contempt proceedings if it is in the interest 

of justice. See Young, 481 U.S. at 800-01; In re Special 

Proceedings, 373 F.3d at 43. The purpose of the Rule is to 

“preserve respect for the judicial system itself.” Young, 481 

at 800. It seems incongruous that the Rule would authorize the 

court to appoint such an attorney but not permit the attorney to 

meaningfully report back to the court after investigating the 

matter at issue. Such a result would be inconsistent with the 

Rule’s purpose to “preserve respect for the judicial system 

itself.” A detailed written report is all the more appropriate 

in a complex case such as this, requiring review of more than 

150,000 pages of documents, numerous depositions, and extensive 

research. 
   

44 

See Id. ¶ 2. In fact, this is evident from the deposition 

testimony excerpted at length in the Report. Moreover, while 

Mr. Schuelke’s investigation was not specifically governed by 

the rules of evidence, given the nature and scope of the 

investigation and its subjects, as well as Mr. Schuelke and Mr. 

Shields’ experience investigating, prosecuting and defending 

criminal matters, see supra n.19, there should be no concern 

regarding their inclination to consider or be susceptible to 

“rumor, tip, hearsay, or innuendo.”21 In addition, as is clear 

from his Report, Mr. Schuelke did consider evidence favorable to 

the subjects of his investigation, and drew certain conclusions 

based on that evidence. Releasing Mr. Schuelke’s Report will 

actually subject the “fairness of [his] methods” to review. 

Rocky Flats, 813 F. Supp. at 1463. 

Finally, the need to guard against any public stigma and 

reputational damage in releasing the Report is diminished by the 

unique circumstances of this case. Here, both the issues under 

investigation and the subjects of the investigation have been 

known and widely publicized from the outset, as they stemmed 

from very public proceedings. The subjects were also on notice 

from the outset that the Court intended the results of the 

investigation to be public because the Court announced that 

                                                            

21 The Report makes abundantly clear that its findings and 

conclusions are based exclusively on the documentary record and 

witness testimony. 
   

45 

intent during the April 7, 2009 hearing when it appointed Mr. 

Schuelke. April 7, 2009 Tr. at 46:7-11 (“[T]he events and 

allegations in this case are too serious and too numerous to be 

left to an internal investigation that has no public 

accountability. This court has an independent obligation to 

ensure that any misconduct is fully investigated and addressed 

in an appropriate public forum.”). In fact, at least some of 

the subject attorneys themselves have made statements to the 

press about the investigation. See, e.g., Mike Scarcella, 

Judge: Ted Stevens Investigation Reveals Prosecutorial 

Misconduct, THE BLOG OF LEGAL TIMES (Nov. 21, 2011, 11:57 AM), 

http://legaltimes.typepad.com/blt/2011/11/judge-ted-stevensinvestigation-reveals-proseuctorial-misconduct.html; Mike 

Scarcella, Appeals Court Backs Civil Contempt Ruling in Ted 

Stevens Case, THE BLOG OF LEGAL TIMES (Dec. 9, 2011 4:57 PM), 

http://legaltimes.typepad.com/blt/2011/12/appeals-court-backscivil-contempt-ruling-in-ted-stevens-case.html. 

Moreover, it is significant that two of the six subject 

attorneys either do not oppose and/or favor publicly releasing 

the Report. In addition, all of the subject attorneys work for 

the Department of Justice and were investigated by the 

Department’s Office of Professional Responsibility (“OPR”), 

presumably regarding the same conduct investigated by Mr. 

Schuelke, and the Department of Justice has reviewed Mr. 
   

46 

Schuelke’s Report.22 Accordingly, the subject attorneys’ 

employer is already aware of the information in the Report, and 

therefore any argument that they will suffer professional damage 

from release of the Report is speculative. 

Nevertheless, in order to address any claimed prejudice 

that could result from releasing the Report when its findings 

will not be subjected to an adversarial proceeding, the Court 

will afford the subject attorneys another opportunity to submit 

comments on the Report. See supra n.8. Those comments shall be 

published with the Report, to enable the public to consider the 

subject attorneys’ comments simultaneously with the Report. 

This is in keeping with the process followed by the D.C. Circuit 

in In re North and subsequent cases, where there were similar 

concerns about publicly releasing a report containing 

                                                            

22 The Court notes that while the government promised, both in 

its April 1, 2009 Motion to Dismiss and at the April 7, 2009 

hearing, to share the results of its OPR investigation at least 

with the Court, if not the public, the Court has yet to either 

see that report or be invited to see that report. See Mot. of 

the United States to Set Aside Verdict and Dismiss Indictment 

With Prejudice at 2, Stevens (Apr. 1, 2009); April 7, 2009 Tr. 

at 14:24-15:3. The Attorney General has, however, recognized 

the very public nature of the Stevens case and its aftermath. 

Oversight of the U.S. Department of Justice: Hearing before the 

Senate Judiciary Comm., Webcast at 66:00 - 66:10 (Nov. 8, 2011), 

http://www.judiciary.senate.gov/hearings/hearing.cfm?id 

=9b6937d5e931a0b792d258d9b32d21a8 (last visited Feb. 2, 2012), 

(“I want to share as much of [the OPR report] as we possibly can 

given the very public nature of that matter and the very public 

nature of the decision I made to dismiss the case[.]”). 

 

 
   

47 

allegations that would not be subjected to an adversarial 

process. See North, 16 F.3d at 1236, 1241; see also In re 

Cisneros, 426 F.3d 409, 413-14 (D.C. Cir. 2005); In re Espy, 259 

F.3d 725, 729 (D.C. Cir. 2001). 

C. The D.C. Circuit’s Decision in In re North

 In the case of In re North, the D.C. Circuit considered 

whether to publicly release the Independent Counsel’s report on 

the Iran-Contra investigation. 16 F.3d 1234. To be clear, the 

expired Independent Counsel statute is obviously not directly 

applicable to this case. Nevertheless, the Circuit’s analysis 

in North is instructive. In North, as here, the court was faced 

with objections to publicly releasing the Independent Counsel’s 

report based on arguments that (1) it was unfair to release a 

report raising allegations of wrongdoing when those allegations 

would not be tested by an adversarial process; and (2) the 

report contained grand jury material subject to Federal Rule of 

Criminal Procedure 6(e)’s secrecy requirements. As discussed 

supra Part II.B., those are the same arguments raised by the 

subject attorneys opposed to releasing Mr. Schuelke’s Report. 

 In the final analysis, and not without reservations, the 

North court determined that the report should be released, with 

the inclusion of an appendix consisting of comments from persons 

named in the report. 16 F.3d at 1241. The court reached that 

determination after weighing four factors, and it later used the 
   

48 

same framework and reached the same or similar conclusions in 

two subsequent cases involving whether to release reports by two 

other Independent Counsel. See id. at 1240-41; Cisneros, 426 

F.3d at 413-14; Espy, 259 F.3d at 729-30. 

 This Court has already determined, as discussed supra Part 

II.A, that the First Amendment right of access compels 

disclosure of Mr. Schuelke’s Report. A brief discussion of the 

factors set forth in North, however, demonstrates that those 

factors also overwhelmingly weigh in favor of disclosure. Those 

factors are: 

(1) whether the subjects of the investigation have 

already been disclosed to the public; (2) whether the 

subjects do not object to the filings being released 

to the public; (3) whether the filings contain 

information which is already publicly known[;] and (4) 

whether the [c]ourt filings consist of legal or 

factual rulings in a case which should be publicly 

available to understand the court’s rules and 

precedents or to follow developments in a particular 

matter. 

North, 16 F.3d at 1240; see also Cisneros, 426 F.3d at 413; 

Espy, 259 F.3d at 729. 

1. Whether the Subjects of the Investigation Have 

Already Been Disclosed to the Public 

This factor obviously requires little discussion or 

analysis. As discussed throughout, the subject attorneys were 

named in the Court’s public order appointing Mr. Schuelke, have 

been identified in any number of articles regarding the 
   

49 

investigation, and several have made statements to the media 

themselves about Mr. Schuelke’s investigation. 

2. Whether the Subjects Do Not Object to the Filings 

Being Released to the Public 

As previously noted, four of the six subject attorneys 

oppose releasing Mr. Schuelke’s Report – though the degree and 

extent of their opposition varies. See supra n.5. One of the 

subject attorneys, on the other hand, “welcomes” release of the 

Report, and the sixth subject attorney does not oppose release. 

See Morris Submission; Welch Notice. It is not possible, nor 

would it be appropriate under the unique circumstances in this 

case, to release only those portions that relate to the nonopposing attorneys. See, e.g., North, 16 F.3d at 1240 (“Movants 

seeking release and movants opposing are the subjects of 

accounts as intertwined and inseparable as fibers within the 

strands of a woven rope.”). Accordingly, while this factor 

independently might weigh against release, it is heavily 

outweighed by the other factors under North and for all of the 

reasons discussed previously in this decision. 

3. Whether the Filings Contain Information Which is 

Already Publicly Known 

This factor weighs heavily in favor of disclosure. Not 

only does the Report relate to representations made and actions 

taken by the subject attorneys during and leading up to the 

highly-publicized Stevens trial, it also reveals underlying 
   

50 

facts that counter or contradict some of those actions and 

representations. In other words, withholding the Report leaves 

the public in some cases with only the wrong or misleading 

information.23 See North, 16 F.3d at 1240 (“Not only is the 

information widely known, it is widely known incorrectly.”). 

4. Whether the Court Filings Consist of Legal or 

Factual Rulings In a Case Which Should Be Publicly 

Available to Understand the Court’s Rules and 

Precedents or to Follow Developments in a Particular 

Matter 

Finally, this factor also weighs heavily in favor of 

disclosure.24 Again, the extent to which the media and the 

                                                            

23 Merely by way of example, these include revelations that Rocky 

Williams believed that his time was being included in the 

Christensen bills, which supported the defense’s contention that 

the Senator and Mrs. Stevens believed they were paying for the 

VECO employee’s time in the Christensen bills; the prosecutors 

dismissed this argument made by the defense while concealing the 

favorable statements made by Williams. Similarly, the 

prosecutors made a number of representations to the Court 

regarding Bill Allen and Bambi Tyree that are now known to be 

false. The Court made a number of rulings based on these 

misrepresentations, including limiting the defense’s ability to 

cross-examine Allen about those issues. In addition, the 

government notified Allen’s attorney just before trial that an 

active state investigation into Allen’s sex with minors had 

“merit,” and Allen’s counsel informed the government that Allen 

would assert his Fifth Amendment privilege if asked about these 

matters. The government concealed all of this from the defense 

and from the Court. And of course, there are the revelations in 

the Report regarding the “CYA” testimony. Withholding Mr. 

Schuelke’s Report under these circumstances leaves the public 

with incomplete and inaccurate information about the matters 

involved in the Stevens trial and uncovered by Mr. Schuelke’s 

investigation. 

24 Curiously, one opposing attorney argues that because Mr. 

Schuelke’s Report contains “substantial allegations of 
   

51 

public followed the developments in the Stevens trial is nearly 

unprecedented. As the Court said in its November 21, 2011 

Order, 

The public availability of the results of Mr. 

Schuelke’s Report will facilitate the public’s 

understanding of the Court’s rulings in the Stevens

case and the constitutional and procedural 

requirements inherent in our criminal justice system, 

and will better enable the public to follow and place 

in context the developments in the Stevens case, all 

of which, again, were widely publicized at the time. 

November 21, 2011 Order at 12. 

Moreover, as discussed supra, the Stevens trial and its 

aftermath have led to an ongoing national dialogue regarding the 

constitutional and procedural requirements – or lack thereof – 

that protect defendants in the criminal justice system. See, 

e.g., Mike Scarcella, Divided on Discovery; A Bare Majority of 

Judges Would Impose Stricter Rules on Prosecutors, NATIONAL LAW 

JOURNAL, Mar. 14, 2011 (explaining that Stevens led to a call for 

                                                                                                                                                                                               

‘concealment and serious misconduct that was previously 

unknown,’” the Report “could not possibly help explain the 

Court’s rulings in United States v. Stevens or assist the public 

in following developments in a trial that ended in 2008.” Marsh 

Motion at 10 (quoting the Court’s November 21, 2011 Order). In 

other words, the opposing attorney appears to argue that because 

the information was concealed from the defense and the public 

long enough for the government to move to dismiss the indictment 

(upon discovery by new Department of Justice attorneys that some 

of the information previously withheld from the defense by the 

subject attorneys would at least require a new trial), the 

evidence of that concealment and misconduct could never have a 

bearing on what occurred in the Stevens trial and should never 

come to light. The Court finds this argument utterly devoid of 

merit. 
   

52 

the Judicial Conference Criminal Rules Committee to reconsider 

expanding prosecutors’ discovery obligations; according to a 

survey by the Federal Judicial Center, 51 percent of federal and 

magistrate judges favor changing Federal Rule of Criminal 

Procedure 16 to require the disclosure of all exculpatory 

information to the defense); American Bar Association, Select 

Committee Report on the ABA Annual Meeting 14 (Sept. 2, 2011), 

available at 

http://www.americanbar.org/groups/leadership/2011_annual_house_m

tg_docs.html (follow “Select Committee Report (September 7, 

2011)” hyperlink) (noting approval by ABA House of Delegates of 

Criminal Committee Resolution 105D, urging governments to adopt 

formal disclosure rules requiring prosecutors to disclose 

exculpatory evidence to defense) (last visited Feb. 6, 2012); 

MODEL CRIMINAL CODE, 18 U.S.C. § 3014 (Draft Proposed by Nat’l Ass’n 

of Criminal Defense Lawyers 2011), available at 

http://www.nacdl.org/NewsReleases.aspx?id=20531 (follow “NACDL 

Proposed 18 USC § 3014” hyperlink at bottom of page) (requiring 

prosecutors to disclose information favorable to the defendant) 

(last visited Feb. 6, 2012). The exhaustive efforts of Mr. 

Schuelke and Mr. Shields, which involved review of more than 

150,000 pages of documents, twelve depositions, witness 

interviews, and a comprehensive understanding of the 

government’s investigation, charges, pre-trial and trial 
   

53 

proceedings, not only in the Stevens matter, but also in 

relevant aspects of at least two other federal prosecutions 

brought by the Department of Justice’s Public Integrity Section 

against Alaskan state officials, can greatly inform that 

national discussion.25,26 

III. Conclusion 

As set forth above, the public has a First Amendment right 

of access to Mr. Schuelke’s Report. In fact, under the 

circumstances of this case, it would be a disservice and an 

injustice to withhold the results of the Report, particularly 

                                                            

25 See supra n.12. 

 

26 As noted supra, n.16, Rule 42(a)(2) authorizes the court to 

appoint a private attorney to prosecute a criminal contempt 

proceeding where the “interest of justice” so requires. The 

purpose of the rule is “to preserve respect for the judicial 

system itself.” See Young, 481 U.S. at 800-01. While the need 

to initiate criminal contempt proceedings, and to make such an 

appointment in the interest of justice, is thankfully rare, when 

it does arise, the rule’s purpose of “preserving respect for the 

judicial system” depends on the willingness of a private 

attorney to accept and carry out such an appointment. Here, the 

appointment to investigate the six subject attorneys and 

determine the extent of any prosecutorial misconduct in the 

Stevens case was a tremendous undertaking, both because of the 

scope and the nature of the investigation. The Court is 

profoundly grateful first and foremost to Mr. Schuelke, and also 

to his colleague Mr. Shields and the law firm of Janis, Schuelke 

& Wechsler, for the significant resources they invested in this 

matter over the course of nearly three years. The Court is 

particularly appreciative of what is so evident in the Report, 

and that is the thoughtful, diligent, fair, and sensitive way in 

which Mr. Schuelke and Mr. Shields approached their 

responsibilities pursuant to this appointment. In the Court’s 

view, their professionalism does indeed “preserve respect for 

the judicial system itself.” 
   

54 

where the Court indicated from the outset that it would make the 

Report public. Mr. Schuelke’s Report chronicles significant 

prosecutorial misconduct in a highly publicized investigation 

and prosecution brought by the Public Integrity Section against 

an incumbent United States Senator. The government’s ill-gotten 

verdict in the case not only cost that public official his bid 

for re-election, the results of that election tipped the balance 

of power in the United States Senate. That the government later 

moved to dismiss the indictment with prejudice and vacate the 

verdict months after the trial does not eradicate the 

misconduct, nor should it serve to shroud that misconduct in 

secrecy. The First Amendment serves the important function of 

monitoring prosecutorial misconduct, but the public cannot 

monitor the misconduct in the Stevens case without access to the 

results of Mr. Schuelke’s investigation, which are detailed in 

his five-hundred-page Report. 

Accordingly, it is hereby 

ORDERED that the two motions to withhold the Report are 

DENIED; it is further 

ORDERED that Mr. Schuelke shall distribute an unredacted 

version of this Memorandum Opinion to all attorneys who received 

copies of the Report, pursuant to the Court’s November 21, 2011 

Order and the executed Confidentiality Agreement; it is further 
   

55 

ORDERED that by no later than March 8, 2012, each subject 

attorney may submit to Mr. Schuelke four paper copies and one 

electronic copy of written comments or objections to be filed as 

addenda to Mr. Schuelke’s Report; it is further 

ORDERED that Mr. Schuelke shall file his Report on the 

public docket on March 15, 2012, which shall include as addenda 

to the Report any comments or objections received from the 

subject attorneys; it is further 

ORDERED that when the Report is made public, the 

individuals who are subject to the Confidentiality Agreement as 

a condition to having access to the Report shall be released 

from that Confidentiality Agreement; it is further 

ORDERED that on March 15, 2012, all pleadings related to 

Mr. Schuelke’s Report and filed in response to this Court’s 

November 21, 2011 Order shall be unsealed and placed on the 

public docket; finally, it is further 

ORDERED that on March 15, 2012, an unredacted version of 

this Memorandum Opinion shall be placed on the public docket. 

An appropriate Order accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan 

 United States District Court Judge 

 February 8, 2012