This case concerns whether DOJ can keep secret a manual that it acknowledges it prepared to educate and regulate all federal prosecutors in connection with their constitutional, statutory and ethical disclosure obligations.
The manual addresses the government’s obligations to turn over information to defense lawyers. The defense lawyers association filed a Freedom of Information Act request for a copy of the manual, and filed suit when the request was denied.
The association gained support on Tuesday from law professors and advocacy groups that filed friend-of-the-court briefs.
In a brief filed on behalf of The Constitution Project and the Innocence Project, lawyers from Miller & Chevalier said the case implicated the public’s ability to hold prosecutors accountable for their conduct in criminal cases. One of the Miller & Chevalier lawyers on the brief, Addy Schmitt, is a former counsel and career law clerk to U.S. District Judge Emmet Sullivan, who presided over the Stevens case.
A federal jury in 2008 found Stevens guilty of filing false financial disclosure forms in the U.S. Senate that concealed hundreds of thousands of dollars in gifts, home repairs and other items. The Justice Department dismissed the charges a year later amid allegations that prosecutors withheld favorable information from Stevens’ defense team at Williams & Connolly.
A special court-appointed prosecutor later determined that government lawyers involved in the case did intentionally withhold information from the defense. In January, a federal board voided disciplinary action taken by the Justice Department against two prosecutors, Joseph Bottini and James Goeke, who were involved in the case.
“The context in which DOJ created the Blue Book, in reaction to the public outcry following the unlawful prosecution of Senator Ted Stevens, and the manner in which DOJ has described and used the Blue Book, as a tool to educate prosecutors on their discovery obligations, are fatal to Appellees’ argument that the Blue Book is exempt from disclosure,” Schmitt and Miller & Chevalier attorney Timothy O’Toole wrote.
Justice Department officials, including former Attorney General Eric Holder Jr., touted the manual as part of a new approach to prosecutorial training after the Stevens public corruption case fell apart over misconduct allegations.
U.S. District Judge Colleen Kollar-Kotelly in December sided with the Justice Department, citing the attorney-client privilege.
“The Blue Book is entirely focused on a bedrock transaction in the adversarial trial process—discovery,” Kollar-Kotelly wrote.
A coalition of 63 law professors, represented by New Orleans firm Fishman Haygood, disputed Kollar-Kotelly’s conclusion that the manual was protected by attorney-client privilege.
“Where, as here, government lawyers act offensively as prosecutors, they must prove they created the document in question in contemplation of a specific claim,” Fishman Haygood attorneys wrote. “The district court improperly excused the department of this burden, concluding it is enough that the department created the Blue Book in anticipation of foreseeable litigation. The district court’s holding reads the work product privilege so broadly, no department memoranda could ever be exposed to the light of public scrutiny. “
In the brief filed on behalf of the ACLU, San Francisco attorney John Cline and Allison Ehlert of Ehlert Appeals in El Cerrito, California, said the outcome of the case would determine the Freedom of Information Act’s “continued vitality as an essential tool for ‘citizens to know what their government is up to.’ ”
“If permitted to stand, the district court’s sweeping expansion of the work-product doctrine will not merely block disclosure of the government’s criminal discovery policy, as important as that is; it threatens also to block disclosure of other policy documents prepared by lawyers, including (for example) opinions prepared by DOJ’s Office of Legal Counsel and controlling legal interpretations that affect the privacy rights and other constitutionally protected interests of Americans,” Cline wrote.
The government’s opening brief in the D.C. Circuit is due in late August.
Below: Read the National Association of Criminal Defense Lawyers opening brief.
