305 F. Supp. 2d 723 (E.D. Mich. 2003)
INTRODUCTION
This case began just six days after the September 11, 2001 terrorist attacks on New York and Washington, D.C., when three of the Defendants were found at an apartment where federal and state law enforcement officials had hoped to locate an individual on the FBI’s “watch list” of suspected terrorists or associates of known terrorists. These arrests generated a substantial amount of media coverage, in light of the public emotions aroused in the immediate wake of the September 11 attacks and the link to a man suspected of associating with terrorists. This attention only increased as the Government augmented its initial document fraud charges with more serious terrorism-related charges, and as it began to appear that this might well be (and, in fact, was) the first case to proceed to trial on terrorism-related charges since the September 11 attacks.
Against this backdrop of momentous national tragedy, heightened public and media interest, and the challenge of ensuring a fair trial for individuals of Middle Eastern origin in a case involving allegations of terrorism-related activities, the parties and their counsel quickly and unanimously suggested that the Court enter an order regulating public statements by the parties or their attorneys concerning this case. Thus, in the early days of this case, the Court issued a stipulated Order Concerning Public Communications by Parties or Lawyers, which was signed by counsel for all parties. Generally speaking, this Order prohibited the public disclosure of information that had a reasonable likelihood of interfering with a fair trial or otherwise prejudicing the proceedings.
This Order generally achieved its purpose, despite a number of challenging developments during the course of these proceedings. Some lamentable incidents did arise, however, and two of the more serious of these directly involved this Nation’s highest law enforcement official, United States Attorney General John Ashcroft. Specifically, the Attorney General referred to this case at two separate press briefings in Washington, D.C., once near the outset of this case and again in the middle of the trial. In the first instance, Attorney General Ashcroft erroneously stated that the three Defendants arrested on September 17, 2001 were “suspected of having knowledge of the September 11th attacks.” On the second occasion, the Attorney General referred to a cooperating Government witness who had just completed his trial testimony, opining that this individual’s testimony had “been of value, substantial value” to the Government.
Defendants raised contemporaneous and strenuous objections to these incidents, and some immediate prophylactic steps were taken. The Court elected at the time, however, to defer its ultimate disposition of these matters until after the trial, in order to avoid disruption of pretrial preparations and the conduct of the trial itself. Defendants now have renewed their objections, through a formal motion requesting that the Court order the Attorney General to show cause why he should not be held in contempt for violating the Court’s Order regarding public communications. To date, the Court has issued only a more limited Order, directing the Attorney General to show cause in writing why he should not be compelled to appear for a hearing to address Defendants’ motion.
As is evident from the foregoing, this matter poses a considerable challenge to the Court, demanding the reconciliation of a number of important, and sometimes competing, judicial and institutional concerns. First and foremost, it is the duty of this Court to ensure that Defendants have been afforded a fair trial consistent with the guarantees and dictates of our Constitution. Next, it cannot be gainsaid that this or any Court must stand behind its orders and apply them equally to all, without regard for station or title. As a coequal branch of government under this Nation’s constitutional design, the judiciary is entitled to the respect of executive and legislative officials, no matter how senior or subordinate. At the same time, however, this Court recognizes that it may not trespass upon or unduly impede the functions entrusted by the Framers to the other branches of government.
As weighty and nuanced as these considerations might be, the present matter ultimately is amenable to resolution through the process routinely employed by the courts — namely, the application of the relevant legal standards to the facts of this particular case. The pertinent facts here are largely undisputed, and the governing law is reasonably well settled. For the reasons stated below, the Court finds that the Attorney General’s public statements about this case violated the terms of the Court’s Order regarding communications, if perhaps only inadvertently. The Court further determines, however, that there is insufficient evidence of willful misconduct or prejudice to the rights of Defendants to warrant the drastic and constitutionally problematic measures of instituting criminal contempt proceedings against the Attorney General or compelling him to appear at a hearing and give testimony concerning his actions.
Nevertheless, in light of the particular circumstances surrounding the Attorney General’s conduct, which will be detailed below, the Court finds that it cannot simply ignore repeated violations of its Order. The Attorney General’s Office exhibited a distressing lack of care in issuing potentially prejudicial statements about this case, one of which came after senior Justice Department officials were directly and expressly advised by the Court, on two separate occasions, that the Order had been entered and would be strictly applied to all, including the Attorney General and his staff. In addition, the Court is concerned that, despite the explicit warnings given in this case, the Attorney General apparently did not take sufficient steps to reform the procedures used in his Office, in order to ensure that staff members with significant prosecutorial experience carefully review any proposed references to pending cases to verify that they comport with all applicable ethical guidelines and court orders.
Despite his unquestioned duty to address the Nation on matters of public concern, and his more specific responsibility to keep the Nation informed of the Justice Department’s efforts in the war on terror, the Attorney General has an equally vital and unyielding obligation, as the Nation’s chief prosecutor, to ensure that defendants are accorded the fair trial guaranteed to them under our Constitution. In this case, this essential balance was jeopardized, even after the Court had issued specific warnings. Accordingly, the Court finds that a public and formal judicial admonishment of the Attorney General is the appropriate sanction to address this concern.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Circumstances Surrounding the Entry of the October 23, 2001 Order Concerning Public Communications by Parties or Lawyers
In order to place this matter in its proper context, it is necessary to recall the circumstances that led to the entry of the October 23, 2001 Order, and to recount the several occasions when the Court was called upon to address issues relating to this Order.
In the early days of this case, Defendants filed a motion in which they quoted the following statement by Justice Oliver Wendell Holmes:
The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.
(Defendants’ 11/29/2001 Motion for Continuance in Light of Excessive and Inflammatory Pretrial Publicity, Br. in Support at 1 (quoting Patterson v. People of Colorado ex rel. Attorney General of Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907))). This same motion was accompanied by a list of hundreds of reports in the local, national, and worldwide media regarding Defendants and this case, with nearly all of these articles also mentioning the September 11, 2001 attacks on New York and Washington, D.C.
Such a juxtaposition was to be expected under the circumstances. Three of the four Defendants in this case were apprehended just six days after September 11, by Detroit Joint Terrorism Task Force agents who were looking for Nabil Al-Marabh, an individual listed on an FBI “watch list” of people suspected to be involved in some way in terrorist activities. The agents sought to interview Al-Marabh as someone who might have knowledge regarding the September 11 attacks, and the apartment where they sought him, at 2653 Norman Street in Detroit, Michigan, listed Al-Marabh’s name on the mailbox.
Upon arriving at the Norman Street residence, the agents did not find Al-Mar-abh, but instead were greeted at the door by Defendant Karim Koubriti. Mr. Koubriti gave permission for the agents to follow him inside the apartment, where Defendants Koubriti, Ahmed Hannan, and Farouk Ali-Haimoud were found to be living as apparent transients, with no furniture to speak of and their clothing kept in duffel bags, suitcases, and garbage bags. A search of the premises revealed several suspicious items, including fraudulent passports, visas, social security cards, and alien registration cards. The agents also discovered a day planner which contained references to an American military base in Turkey, an “American foreign minister,” and a Jordanian airport, as well as sketches which purportedly depicted airport flight lines, aircraft, and runways. In addition, two SkyChef/Detroit Metropolitan Airport badges were found in the apartment, bearing the pictures of Defendants Koubriti and Hannan.
Against this backdrop, certain practical concerns were evident to the parties and the Court alike. In the immediate wake of September 11, terrorism task force agents had apprehended three young men of Middle Eastern origin in an apartment previously occupied by an individual on the FBI’s “watch list” of people suspected of terrorist ties. A number of suspicious items, including fraudulent identification papers, had also been found in this apartment. It was inevitable, under these circumstances, that media reports of Defendants’ arrest and indictment would be accompanied by references to the September 11 attacks. This, of course, suggested the very real danger that the potential pool of jurors would associate Defendants with the tragic events of that day.
Yet, the Government has never alleged, either at the outset or at any other point in these lengthy proceedings, that these Defendants had any connection whatsoever to the terrorist attacks on New York and Washington, D.C. Nor did any of the evidence offered at trial even suggest such a link. Indeed, the initial indictment in this case charged Defendants solely with document fraud. The first charges and allegations of terrorism-related activities did not appear until the grand jury returned the Second Superseding Indictment on August 28, 2002, nearly a year after Defendants Koubriti, Hannan, and Ali-Haimoud were taken into custody.
The demographics of the greater Detroit area posed an additional concern. In the wake of September 11 and the publicity surrounding Defendants’ arrest, tensions and sensitivities were extremely high in this area, a community which includes the largest Middle Eastern population outside of the Middle East. This raised the prospect that this case might become a focal point in the escalating community debate about larger social and political issues.
It was immediately apparent to the Court and counsel, therefore, that a number of steps were necessary to “lower the volume” concerning this case, in order to ensure that it was tried in court rather than the media and that prospective jurors did not form preconceived notions that might jeopardize Defendants’ right to a fair trial. Various such measures have been employed throughout these proceedings, including the preparation of a detailed 26-page questionnaire to explore the attitudes of prospective jurors and their awareness of the media reports about this case, extensive individual voir dire of each prospective juror, and the empaneling of an anonymous jury.
See United States v. Koubriti, 252 F.Supp.2d 424, 426-27 (E.D.Mich.2003) (describing the questionnaires given to prospective jurors); United States v. Koubriti, 252 F.Supp.2d 418, 419-20 (E.D.Mich.2003) (addressing the selection of an anonymous jury).
In addition, in the very early days of this case, the parties and the Court quickly agreed upon the terms of a “gag order” governing public communications about this case. At an initial status conference convened shortly after Defendants were arrested and initially charged, counsel for both the Government and Defendants suggested that such an order would be appropriate, and the Court readily agreed. The Court then invited counsel to draft and agree upon the language of this proposed order, and they returned within a few days to present their proposal.
Counsel’s suggested language was incorporated, essentially without alteration, into the October 23, 2001 Order that forms the basis for Defendants’ present motion. This “Order Concerning Public Communications by Parties or Lawyers” is quite brief, and provides in its entirety:
Upon agreement of the Defendants and their attorneys and the attorneys for the Government, and to prevent the reasonable likelihood of prejudicial pretrial publicity and to protect the due administration of justice, it is ORDERED that:
A. None of the lawyers appearing in this case or any persons associated with them will release or authorize the release of information or opinion about this criminal proceeding which a reasonable person would expect to be disseminated by any means of public communication, if there is a reasonable likelihood that such disclosure will interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice.
B. All counsel shall take reasonable precautions to prevent all persons who have been or are now participants in or associated with the investigations conducted by the prosecution and defense from making any statements or releasing any documents that are not in the public record and that are reasonably expected to be publicly disseminated which would be likely to materially prejudice the fairness of this criminal proceeding.
(10/23/2001 Order at 1-2.) This stipulated Order was signed by counsel for the Government and for all Defendants who were then in the case, was promptly entered by the Court, and has remained in effect at all times from October 23, 2001 until the Court vacated it at the close of trial in June of 2003.
B. The Court’s Efforts to Enforce the October 23, 2001 Order
Through their present motion, Defendants assert that the Attorney General has violated the October 23, 2001 Order on two occasions, first within a few days after its entry, and then again during the trial in the spring of 2003. In addition, other incidents arose during the course of these proceedings that have implicated the terms of this Order, requiring the Court to convene conferences and correspond with counsel regarding these matters.
The first such incident occurred just eight days after the Order was entered, at a Washington, D.C. press briefing held by the Attorney General on October 31, 2001. At this news conference, the Attorney General gave a progress report on the “war on terror” that had been commenced following the September 11 attacks, announcing various steps that the Department of Justice had taken “to enhance our ability to protect the United States from the threat of terrorist aliens.” (Government’s Response, Ex. A, 10/31/2001 Briefing Tr. at 1.) These steps included the formation of a Foreign Terrorist Tracking Task Force, the implementation of measures authorized under the recently-enacted USA Patriot Act, and the designation of various groups as terrorist organizations under the Act. As a preface to his more specific remarks on these subjects, the Attorney General stated:
Forty years ago, the Department of Justice, under Attorney General Robert Kennedy, undertook an extraordinary law enforcement campaign to root out and to dismantle organized crime. The Kennedy Justice Department, it is said, would arrest a mobster for spitting on the sidewalk, if it would aid in the war against organized crime.
In the war on terror, it is [the] policy of this Justice Department to be equally aggressive. We will arrest and detain any suspected terrorist who has violated the law. If suspects are found not to have links to terrorism or not to have violated the law, they’ll be released. But terrorists who are in violation of the law will be convicted, in some cases be deported, and in all cases be prevented from doing further harm to Americans.
Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks. It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism.
Three Michigan men suspected of having knowledge of the September 11th attacks, for example, were arrested on charges of possessing false documents. In addition to a day planner containing notations in Arabic and what appeared to be a diagram of an airport flight line, agents found false immigration forms, a fraudulent U.S. visa and a false alien identification card in the apartment of the three men.
These statements about Defendants were prominently reported in both the local and the national media. Concerned that these remarks might violate the prohibition on prejudicial public communications about this case, the Court immediately convened a November 2, 2001 in camera off-the-record conference with the U.S. Attorney for this District, defense counsel, and then-Assistant Attorney General Michael Chertoff, the head of the Justice Department’s Criminal Division. Through this measure, the Court sought to alert the Attorney General, the members of his staff, and all counsel of record in the case that the October 23, 2001 Order must be adhered to and would be strictly enforced. The Court also sought to swiftly rectify any prejudice to Defendants as a result of the Attorney General’s comments and the ensuing publicity, by urging the Justice Department to immediately make clear that the Government lacked any evidence linking Defendants to the events of September 11. At the same time, the Court deemed it more appropriate at the time to address this matter in a non-public, off-the-record conference rather than a formal proceeding, in order to prevent this seemingly isolated incident from itself becoming a spectacle, and thereby diverting the attention and resources of the parties, counsel, and the Court away from the preparation of this case for trial.
During the course of this November 2, 2001 conference, Assistant Attorney General Chertoff stated that he understood the Court’s concerns, apologized for any disruption in the proceedings as a result of the Attorney General’s remarks, and represented that no further such incidents would occur during this case. The Court, in turn, instructed Mr. Chertoff to take steps to ensure that the Attorney General and his staff were fully apprised of the terms of the October 23, 2001 Order and the importance of avoiding any further public comments that might run afoul of this Order.
In addition, the Court addressed the potential prejudice to Defendants by urging Mr. Chertoff to pursue the release of a Justice Department statement specifically retracting the Attorney General’s remark that Defendants were “suspected of having knowledge of the September 11th attacks.” The Department issued a press release that very same day, stating that “[a]t this time the Department of Justice does not take the position that the three Michigan men had knowledge of the September 11 events.” (Government’s Response, Ex. B, 11/2/2001 DOJ Statement.)
Over the next several months, there were no further disclosures or statements implicating the terms of the October 23, 2001 Order. During this time, the Government continued its investigation, and indicated through counsel that it would soon determine whether to pursue a superseding indictment that would include terrorism-related charges. This process culminated in the Second Superseding Indictment, which was issued on August 28, 2002, and which charged for the first time that Defendants had provided material support or resources to terrorists.
Upon learning of this impending indictment and its terrorism-related charges, the Court anticipated that there might be heightened media and public attention to this case, as well as increased demand for counsel to comment upon this development. Accordingly, on the morning of August 28, 2002, the date the indictment was expected to be (and ultimately was) handed down, the Court delivered to all counsel a letter reminding them of the obligations imposed under the October 28, 2001 Order:
The Court has been advised by the Government that it will be seeking a superseding indictment today which will include terrorist-related charges. The Court has also been advised that the Government will be issuing a press release with the anticipated superseding indictment.
In view of the “gag” order in place in this case — and in anticipation of a return of a superseding indictment — I instructed the Government to provide me with a copy of the proposed press release. I have now reviewed the press release to insure that it is purely descriptive of the charges in nature. No press conference is to be held in conjunction with a return of the superseding indictment or press release.
Should the superseding indictment issue, I have also instructed the Government to provide all defense lawyers with copies of the superseding indictment and press release prior to release to the media. In addition, I will permit defense counsel to respond to the media concerning the superseding indictment and press release in a limited, non-inflammatory manner.
Under no circumstances should any attorney or party contact the media prior to any issuance of a superseding indictment by the Grand Jury.
I instruct all counsel and parties to use restraint and caution in responding to media inquiries concerning the superseding indictment and the ease in general, and remind counsel that, although I have permitted this limited media comment, the gag order remains in place.
(8/28/2002 Letter to Counsel at 1-2.)
Beyond attempting to anticipate and forestall any untoward public comment about the impending indictment and its terrorism-related charges, the Court’s letter to counsel also was motivated by a specific and highly troubling incident. On the evening of August 27, 2002, the day before the grand jury handed down this indictment, a Fox television network news reporter announced a “breaking story” about the forthcoming indictment. Strikingly, this nationally televised report included language which was quite similar, if not identical, to the language of the Second Superseding Indictment issued the next day. Apart from the obvious implications to the October 23, 2001 Order, this apparent leak arguably violated Federal Rule of Criminal Procedure 6(e), which imposes strict secrecy requirements on grand jury proceedings.
But this was not all. The next evening, after the indictment had issued, a report aired on an MSNBC nightly news program regarding this case. During this program, an MSNBC news reporter read English translations of select, inflammatory portions of Arabic language tapes that had been seized in the initial raid of Defendants’ apartment back on September 17, 2001. These translated passages had not been included in the indictment and, what is more, they were presented to the viewers as derived from the evidentiary record in this case. Although it is not clear whether the MSNBC reporter had gained access to the tapes actually seized from the apartment or the Government’s translations of these tapes, it was at least evident that the reporter had learned something about this case that was not a matter of public knowledge at the time — namely, that these tapes were among the items seized from Defendants’ apartment on the date of their arrest.
Perhaps not surprisingly, given these leaks that apparently came from Government sources, and in light of the serious terrorism-related charges contained in the Second Superseding Indictment, one of the defense attorneys elected to speak out to the local and national media in a fashion that did not comport with the Court’s admonition to “use restraint and caution” in public comments concerning the indictment. This attorney stated to the Detroit media, for example, that the charges against his client were based on the “uncorroborated briefing of this snitch, [Yous-sef] Hmimssa,” and that “[w]hat’s kind of scary about this is that basically every Arab person in the country is one snitch away from being on the business end of a terrorism indictment.” David Ashenfelter, Prosecutors Seeking New Indictments Against Terror Suspects, Detroit Free Press, Aug. 28, 2002 (quoting defense attorney Kevin Ernst). In an exercise of admirable professional restraint, however, the remaining defense attorneys refrained from offering any public comments in response to the outpouring of media and public interest surrounding the grand jury’s return of terrorism-related charges.
Faced with this rash of apparent leaks and public statements concerning the charges and allegations of the Second Superseding Indictment, the Court convened an in camera telephonic hearing on October 7, 2002 with the two senior attorneys from the U.S. Attorney’s Office for this District, defense counsel, and Deputy Attorney General Lawrence D. Thompson, who appeared on behalf of the Attorney General’s Office in Washington, D.C. At this conference, the Court first recounted the incidents that had occurred to date regarding the October 23, 2001 Order. The Court then addressed the Deputy Attorney General, expressing its concern that “the message didn’t get through” at the Court’s prior, off-the record conference with then-Assistant Attorney General Chertoff. (10/7/2002 Conference Tr. at 12.) The Court further stated:
[T]he reason why I wanted you [ie., Deputy Attorney General Thompson] to participate was because I know you are very much involved in the policy decisions here. And I’m not implying in any way [that] you are responsible for any of this. I want to quickly add that. But you seem to me to be the person, short of the Attorney General, who could make it clear to everybody in the [Justice] Department, that I view this with the greatest degree of seriousness. And to get that message through, not just to the lawyers and the prosecutors and the agents who are involved, but to the political people as well, because I don’t believe they’re getting the message.
Thus far, all I have done is talk[ ]. I’ve tried to make it clear to everybody that I view the gag order not only as important to the administration of this case, and to the parties here to ensure a fair trial, but I believe that it is in the best interest of all of the parties that this case be conducted in court through formal proceedings, hearings, conferences with the Court, motions, pleadings, and not tried in the media.
We’re heading into a stage in this case in which the[re] — I’ve got to make some very difficult decisions .... But one thing I have to be certain of, I have to be able to trust counsel .... If I cannot, we will not be able to conduct this case.
So, by virtue of this conference, I’m not doing this, as I said, as a formal order to show cause to anybody. But by virtue of this conference, I’m putting everybody on notice [that] there w[ill] be no violations. There are no free passes. And Mr. Deputy Attorney General, I hope you will pass that along. If the[re are] any more violations by the Government, ... I will impose sanctions, which may include a request to the Office of Professional Responsibility to investigate.
I am determined not to make this a public spectacle, ... because I think that would not serve the overall purpose. Because if we do all this in public, then it raises the profile of the case and it becomes even harder to ensure a fair jury, not just here in Detroit, but anywhere .... I didn’t initiate the gag order, but I intend to keep it in place until further order of the Court and I intend to enforce it.
(Id. at 12-16.)
In response to the Court’s remarks, the Deputy Attorney General stated that he was “not aware of anyone, any employee of the [Justice] Department, being involved in any pre-indictment leak.” (Id. at 17.) Nonetheless, Mr. Thompson assured the Court that he had read the October 23, 2001 Order, and that he would “bring [the Court’s] concerns to the attention of the appropriate people here at the Department” and “make certain that we do everything we possibly can to bring to the attention [of] our employees the absolute[ ] necessity to not only obey all court orders, [but] make certain all defendants receive fair and just trials.” (Id.) He further stated that he would confer with the senior officials in the local U.S. Attorney’s Office “to make certain that we’ve explored all the possibilities in communicating your concerns, Your Honor, and court order to the appropriate people here at the DOJ who may deal with this case [or] who may have knowledge of this case.” (Id. at 18.)
Following up on these assurances, the Court requested that the Deputy Attorney General address this matter in a memo “and make sure that this memo is confidentially given circulation, not just to the folks in the Criminal Division [of the Department of Justice], but anybody who is involved in this case and to the folks in the Attorney General’s Office.” (Id. at 21.) Deputy Attorney General Thompson agreed, and issued an October 16, 2002 memorandum to the Attorney General’s Office and other Department of Justice entities discussing the issues addressed at the October 7, 2002 conference with the Court. Specifically, this memo set forth the terms of the October 23, 2001 Order, noted that the Second Superseding Indictment apparently had been leaked the evening before it was handed down, and observed that “[t]his case has generated a substantial amount of interest, especially in the Detroit area.” (10/16/2002 Thompson Memo at 1-2.) The memo closed with the directive that Department employees “avoid making any statement about this case except in strict compliance with the Court’s order, applicable rules, and Department policy as set forth in Section 1-7.000 of the United States Attorneys’ Manual.” (Id. at 2.)
Following this flurry of activity immediately surrounding the return of the Second Superseding Indictment, trial preparations proceeded over the next several months without public comment by counsel or the parties. A lengthy jury selection process began on February 21, 2003, when prospective jurors were summoned to the Court and asked to complete a detailed, 26-page questionnaire. Among other inquiries, prospective jurors were asked whether they had seen, heard, or read anything about Defendants or this case. If so, the jurors were asked whether what they had learned would prevent them from rendering a fair and impartial verdict based solely on the evidence presented in court.
The jury selection process continued in court on March 18, 2003, when prospective jurors were subjected to extensive individual voir dire. Again, some of this questioning concerned pretrial publicity. This lengthy and painstaking process continued for seven days, concluding on March 26, 2003 with the final selection of a panel of sixteen jurors and alternates. That same day, the trial formally began with the opening statements of the parties.
It is fair to characterize Youssef Hmims-sa as one of the Government’s key witnesses. Although Mr. Hmimssa was among the Defendants named in the initial indictment, the charges against him were severed because of his agreement to cooperate with the Government and testify against the other Defendants. In all, he testified for five days at trial, including three days of vigorous cross-examination. This testimony directly and specifically detailed various terrorism-related activities engaged in by each of the Defendants. Mr. Hmimssa concluded his testimony on April 17, 2003, just short of the midpoint of trial.
That same day, April 17, 2003, Attorney General Ashcroft held a press conference in Washington, D.C. to address the Justice Department’s efforts to prevent any domestic acts of terrorism arising from the war in Iraq. During the course of his remarks, the Attorney General noted that various individuals had recently been charged with engaging in terrorism-related activities. The Attorney General then stated:
Also, during this same time, the Justice Department took guilty pleas from four individuals who are providing cooperation to the United States as part of their plea agreements. I want to emphasize the value of the guilty pleas with agreements to cooperate. The information in a guilty plea obviously assists us in detaining and disrupting the activities of those who are not associated with the plea. The person pleading guilty goes to jail, but the information helps us disrupt activities of others who are not a party to that particular litigation.
Ernest James Ujaama in Seattle pled guilty to providing goods and services to the Taliban.
Two defendants in Buffalo pleaded guilty for providing material support to al Qaeda.
And Youssef — I’m having trouble with this one — Youssef Hmimssa pled guilty to multiple criminal charges and is currently cooperating in the Detroit cell case. His testimony is — has been of value, substantial value, in that respect.
Our — such cooperation is a critical tool in our war against terrorism, and when those who may be contemplating terrorist activity are aware of the fact that there are others who had been involved in the terrorist network who are cooperating and providing information, we believe that is a destabilizing, disrupting influence on any who might be seeking to engage in terrorist acts.
(Government’s Response, Ex. C, 4/17/2003 Press Conference Tr. at 3-4.) This press conference apparently was televised, and the Attorney General’s comments about Youssef Hmimssa were widely reported in the Detroit media.
The following morning at trial, Defendants immediately moved for a mistrial, on the ground that the Attorney General had improperly attempted to bolster the credibility of a Government witness. Defense counsel further expressed the intention to seek an order to show cause why the Attorney General should not be held in contempt of Court, but no formal motion actually was made at the time.
In response to the motion for mistrial, the Court first addressed the jury regarding another, unrelated matter, and then questioned the jury as follows:
The second issue that I want to raise with the jury is — -relates to my ongoing admonition to you not to read anything about the case, not to watch anything on television about the case, not to listen to anything on the radio about the case. My question to you is, in the last day or so, have any of you either heard directly, even though inadvertently, anything in the media or read anything in the paper about any government official commenting on any of the issues or any of the people or any of the witnesses involved in this case? Any government official whatsoever? Any of you heard anything in the radio, seen anything on television, read anything in the paper about any government official commenting about any of the issues in this case or any of the people or witnesses in this case?
(4/18/2003 Trial Tr. at 3641-42.) The jurors were asked to raise their hands if their response was affirmative, and none did so. Both the Government and defense counsel were then offered an opportunity to conduct further voir dire on this matter, and neither side elected to do so. Based on the jury’s response, the Court denied Defendants’ motion for mistrial for lack of a showing of prejudice.
Regarding defense counsel’s reference to the issue of contempt, the Court stated that any such motion by Defendants would be addressed following the trial. The Court then added:
Suffice it to say, given all of the history here, ... I was distressed to see the Attorney General commenting in the middle of a trial about the credibility of a witness who has just gotten off the stand. I believe the Attorney General is subject to the orders of this Court, [and] I believe the Attorney General believes he’s subject to the orders of this Court.
... [M]uch more concretely], much more specifically], the Attorney General has been specifically put on notice about the Court’s view of the scope of its gag order[ ][and] the Court’s belief that the Attorney General is subject to the gag order[]. And the Court’s specific indication to all Justice Department employees subject to the gag order, including the Attorney General, that they were not to comment on the merits or substantive issues involved in the case.
I am concerned that the Attorney General’s comment about the credibility of a witness in the middle of trial could potentially implicate the conditions of the gag order.
I would only restate that which I’ve said many times before. The Court entered this gag order at the inception of the case at the request of the parties; all of the parties, including the Justice Department. I think it’s worked, with some minor glitches, I think it’s worked to the benefit of all of the parties. Before the order was entered, I specifically asked all attorneys to review the terms of the gag order with all of their clients. I was advised that was done. I then did it, again, on a number of other occasions and I was advised that that was done. So I am concerned and distressed to wake up this morning to find the Attorney General commenting on the testimony of a witness that has appeared in this case during trial.
(4/18/03 Trial Tr. at 3635-37.)
Later that day, a Justice Department spokesperson addressed the Attorney General’s remarks at his April 17 press conference. The spokesperson stated that “[t]his was a wide-ranging press conference discussing many different matters in the public record,” and that “[w]e certainly had no intent to contravene the judge’s wishes regarding publicity.” David Ashenfelter, Judge Wants Ashcroft Out of Terror Trial, Detroit Free Press, April 19, 2003 (quoting a DOJ spokesperson).
Following this incident, the parties continued presenting their proofs for several more weeks, and counsel gave their closing arguments on May 20, 2003. The jury deliberated over seven days, and returned its verdict on June 3, 2003. One Defendant, Farouk Ali-Haimoud, was acquitted on all charges. A second, Ahmed Hannan, was convicted solely on a document fraud conspiracy charge. The two remaining Defendants, Karim Koubriti and Abdel-Ilah Elmardoudi, were convicted on both the document fraud conspiracy and terrorism-related charges.
C. Procedural Background of the Present Motion
Defendants brought the present motion on August 28, 2003, requesting that the Attorney General be required to show cause why he should not be found to have violated the Court’s October 23, 2001 Order. Upon reviewing this submission, the Court issued an August 29, 2003 Order directing the Attorney General to address the threshold question whether he should be required to personally appear at a hearing on Defendants’ motion. The Government responded to the Court’s Order on September 12, 2003, arguing that the Attorney General should not be compelled to appear because, as a matter of law, he had not willfully disobeyed the October 23, 2001 Order as necessary to warrant contempt proceedings. On September 22, 2003, Defendants filed a reply in further support of their motion.
On September 26, 2003, the Court held an in camera, off-the-record conference to address various issues raised by Defendants’ motion. The U.S. Attorney for this District, his chief Assistant, and all defense counsel were present, as well as two very senior officials from the Attorney General’s Office in Washington, D.C. This meeting was intended as an opportunity for those present to express their views on this sensitive and difficult matter with the greatest degree of candor, and to allow for a certain amount of “brainstorming” and open exchange as to the most appropriate way to proceed.
Although, as noted, the Government’s response to Defendants’ motion was not accompanied by any sort of statement from the Attorney General himself, the Attorney General has now personally addressed this matter in a November 26, 2003 letter to the Court. This letter states:
With this letter, I hope to address the Court’s concerns about two statements that I made over the past two years regarding United States v. Koubriti, et al. I write this not only as the Attorney General of the United States, but also as an officer of the court. The Department of Justice’s legal position has been laid out in the brief that we filed with the Court on September 12, 2003, but I want personally to address your concerns.
This was, of course, a very important terrorism case for our nation and the Department of Justice, and as the Attorney General, I have a duty to keep the American people informed of the Department’s progress against terrorism. Even so, I would certainly never want to do anything that could hinder a fair trial or jeopardize the convictions. Your initial Order, which was agreed to by all parties, instructed that persons associated with the case should not make statements about the case if there is a reasonable likelihood that such disclosure would interfere with a fair trial or otherwise prejudice the due administration of justice. In retrospect, I can appreciate how these two statements, however brief and passing, taken either individually or collectively could have been considered by the Court to be a breach of that part of the Court’s Order. Let me assure you, however, that my remarks were entirely inadvertent. I had no intent either to disregard the Court’s Order or to disrupt the ongoing trial proceedings, much less cause prejudice to the defendants. The statements at issue were unfortunately included during two of many press conferences in which I discussed the Department’s extensive ongoing efforts in the war on terrorism. I regret making these statements, which resulted in a disruptive impact on the Court’s management of the proceedings and had the effect of diverting the Court’s and counsels’ time and attention from other matters.
I appreciate the Court’s painstaking efforts during trial and earlier during voir dire to ensure that no prejudice in fact resulted from the statements at issue. But even if, as set forth in the Department’s brief, my remarks did not prejudice the defendants, or were not reasonably likely to do so, I made a mistake in making statements that could have been considered by the Court to be a breach of the Court’s Order. And for that I apologize to the Court and counsel.
Please be assured that I have communicated to my staff our need to be more careful when including references to ongoing cases when drafting remarks. I take these matters very seriously and will make every effort to ensure that the difficulties occasioned in this instance will be avoided in the future.
(Attorney General 11/26/2003 Letter at 1-2.)
In response to this letter, defense counsel submitted a letter to the Court on December 9, 2003, which states in part:
[I]t was the position of the defense in this matter that the Attorney General was and is personally responsible for his actions and that his earlier response to our motion was insufficient in that it was not a personal response. It was merely a pleading filed by a third party. Finally, it has been the position of the defendants that no one really knows whether the jurors were completely candid about their exposure to the public comments by the Attorney General. While there was no actual harm.discerned from the jurors in our interviews subsequent to the trial, certainly there was always the potential for harm that we should be concerned with as the case law provides.
A lawyer, who is bound by the rules of ethics and the Constitution of the United States, should know better than to comment on the testimony of a government witness while a trial is pending. In his personal letter to the Court, the Attorney General attempts to minimize the consequences of his actions. He attempts to deny his intent to interfere by characterizing his comments as inadvertent and, while he assures the Court that he takes these matters very seriously, he does not convince defense counsel that this conduct should not be addressed .... Further, to say that he believes that his comments were not reasonably likely to prejudice the defendants sends a message loud and clear that he does not understand the nature of his wrongful conduct or the gravamen of his offensive remarks.
The integrity of the system as a whole is at stake. Mr. Ashcroft’s comments were widely reported, both on television and in the news media. They were available electronically and could very easily have been inadvertently discovered by one of the jurors in the ease. More importantly, because of the broad coverage, it is extremely likely that jurors’ families and friends would happen upon the improper comments and mention them to a juror in our case.
The Attorney General of the United States has many functions. His perceived function of informing the public conflicts with the defendants’ right to a fair trial. How many other trials will there be during his tenure as the Attorney General? What has been learned? Counsel are not convinced that his apology is sufficient. Furthermore, counsel are not convinced that given the choice between his perceived duty to keep the American people informed, and an individual’s right to a fair trial, that he would recognize his sacred obligation to insure that all defendants receive a fair trial without interference.
This Court has discretion as to whether or not to receive the Attorney General’s letter as an acceptable response to our motion, and to determine whether his letter is sufficiently contrite and whether his apology is sufficient .... Obviously, the question of whether to take this matter further is within the discretion of the Court....
The defendants respectfully request three things if the Court were to make a decision at this time. First, that a finding be made that the Attorney General’s conduct is subject to this Court’s orders and that it was improper. Secondly, that there should be a finding that there was no superior duty on the part of an Attorney General that transcended the defendants’ right to a fair trial. Finally, that Mr. Ashcroft be, in some fashion, sanctioned for his behavior.
(Defense Counsel 12/9/2003 Letter at 1-3.)
Having considered all of these facts, circumstances, and submissions, the Court now is prepared to rule on Defendants’ motion. This Opinion and Order sets forth the Court’s rulings.
ANALYSIS
A. The Law Governing Defendants’ Motion
In their motion, Defendants contend that the Attorney General’s statements regarding this case at his October 31, 2001 and April 17, 2003 press briefings implicated two of the three subsections of the federal contempt statute, 18 U.S.C. § 401. This statute provides:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as —
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
18 U.S.C. § 401.
Because the Attorney General made his statements in Washington, D.C., subsection (1) does not apply here. See Nye v. United States, 313 U.S. 33, 48-52, 61 S.Ct. 810, 815-17, 85 L.Ed. 1172 (1941) (statutory requirement of misbehavior “in [the Court’s] presence or so near thereto” connotes physical proximity). Defendants maintain, however, that subsection (2) is applicable by virtue of the Attorney General’s status as an officer of the Court, and that subsection (3) is triggered by the Attorney General’s purported violation of the October 23, 2001 Order.
As it happens, subsection (2) does not apply here. Admittedly, attorneys often are characterized as “officers of the court” — and, indeed, the Attorney General himself stated in his November 26, 2003 letter in this case that he was writing “as an officer of the court.” Yet, in a decision directly construing the language of § 401(2), the Supreme Court held that the term “officers” as used in this provision is limited to “the group of persons who serve as conventional court officers and are regularly treated as such in the laws.” Cammer v. United States, 350 U.S. 399, 405, 76 S.Ct. 456, 459, 100 L.Ed. 474 (1956). In so ruling, the Court cited the range of federal statutes governing traditional court officers and employees, see Cammer, 350 U.S. at 405, 76 S.Ct. at 459 (citing 28 U.S.C. §§ 601-963), statutes which do not encompass attorneys appearing before a court. Accordingly, the Court concluded that lawyers are not court “officers” within the reach of § 401(2). Cammer, 350 U.S. at 407-08, 76 S.Ct. at 460; see also United States v. Griffin, 84 F.3d 820, 832 n. 8 (7th Cir.1996); United States v. Time, 21 F.3d 635, 641 (5th Cir.1994); In re Holloway, 995 F.2d 1080, 1081-82 (D.C.Cir.1993), cert. denied, 511 U.S. 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190 (1994); Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 897 n. 10 (3d Cir.1992).
This leaves only subsection (3) of the contempt statute, which authorizes the Court to punish “[disobedience or resistance to its lawful writ, process, order, rule, decree, or command].” 18 U.S.C. § 401(3). By its express terms, this provision is triggered only by “disobedience or resistance” to a court’s order. See In re Smothers, 322 F.3d 438, 441 (6th Cir.2003). This act of disobedience or resistance must be willful — that is, a “deliberate or intended violation” of the court’s order, “as distinguished from an accidental, inadvertent or negligent violation.” Smothers, 322 F.3d at 442 (internal quotations and citations omitted). In addition, the court’s order must be reasonably definite and specific, and the alleged violator must have been on notice of this directive. See Downey v. Clauder, 30 F.3d 681, 686 (6th Cir.1994); United States v. Cutler, 58 F.3d 825, 834 (2d Cir.1995); United States v. West, 21 F.3d 607, 609 (5th Cir.1994).
Though § 401(3) and the relevant case law define the substantive legal standards with reasonable clarity, procedural considerations introduce an additional level of complexity to the present matter. In particular, a contempt proceeding under § 401 may be either criminal or civil in nature, and the required procedures are markedly different depending on this “civil” versus “criminal” determination. See Doumey, 30 F.3d at 685-86. The Supreme Court has explained:
“Criminal contempt is a crime in the ordinary sense,” Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968), and “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings,” Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429-1430, 99 L.Ed.2d 721 (1988). See In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911) (privilege against self-incrimination, right to proof beyond a reasonable doubt). For “serious” criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U.S., at 199, 88 S.Ct., at 1481, see also Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701-2702, 41 L.Ed.2d 897 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.
International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-27, 114 S.Ct. 2552, 2556-57, 129 L.Ed.2d 642 (1994) (footnote omitted).
As Bagwell acknowledges, “[although the procedural contours of the two forms of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear.” Bagwell, 512 U.S. at 827, 114 S.Ct. at 2557 (footnote omitted). The Sixth Circuit has provided some guidance on this topic, stating:
The distinction between civil and criminal contempt lies in the purpose of the court’s mandate. Civil contempt sanctions are designed to enforce compliance with court orders and to compensate injured parties for losses sustained. Criminal contempt sanctions, on the other hand, are imposed to vindicate the authority of the court by punishing past acts of disobedience. Accordingly, a fine that is payable to the complainant as compensation for damages caused by the contemnor’s noncompliance or that is contingent upon performing the act required by the court’s order is civil in nature, while an unconditionally payable fine is criminal.
Downey, 30 F.3d at 685 (internal quotations and citations omitted).
Similarly, Bagwell observes that imprisonment imposed as a contempt sanction is coercive, and hence civil, where “the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus carries the keys of his prison in his own pocket.” Bagwell, 512 U.S. at 828, 114 S.Ct. at 2558 (internal quotations and citations omitted). “By contrast, a fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a completed act of disobedience, such that the contemnor cannot avoid or abbreviate the confinement through later compliance.” Bagwell, 512 U.S. at 828-29, 114 S.Ct. at 2558 (internal quotations and citation omitted).
Here, any sanction potentially faced by the Attorney General under § 401(3) plainly must be characterized as criminal rather than civil. The trial in this case having already concluded, any sanction would not be designed to ensure future compliance with the Court’s orders. Nor is there any way, under the circumstances, to meaningfully “compensate” the parties for any “losses” that might have been incurred as a result of the Attorney General’s conduct. Rather, any sanction imposed at this juncture would be wholly punitive in nature, designed to “vindicate the authority of the court by punishing past acts of disobedience.” Downey, 30 F.3d at 685. Moreover, if it were determined that punishment was warranted under § 401(3), the Attorney General could do nothing at this point to “cure” any past violation and avoid this result.
Because any contempt proceeding would be criminal in nature, the process would be governed by Federal Rule of Criminal Procedure 42(a). This Rule provides:
(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.
(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:
(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare a defense; and
(C) state the essential facts constituting the charged criminal contempt and describe it as such.
(2) Appointing a Prosecutor. 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. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.
Fed.R.Crim.P. 42(a). In addition, as noted earlier, the traditional protections attendant to criminal charges would apply, such as the privilege against self-incrimination and the right to proof beyond a reasonable doubt. With these standards in mind, the Court turns to Defendants’ motion.
B. The Court Finds an Insufficient Basis for Charging the Attorney General with Criminal Contempt of Court.
As is evident from the foregoing discussion of the applicable law, a criminal contempt proceeding is an intricate and rigorous process, governed by the stringent procedures demanded in our system of justice in order to charge and convict a defendant. Where the potential defendant is the United States Attorney General, the Nation’s highest law enforcement official, this process becomes considerably more complex, implicating such core constitutional concerns as the separation of powers between the judicial and executive branches. Nonetheless, the Court’s duties and inquiries remain the same, and necessarily cannot vary with the station of the individual involved. Upon applying the relevant criminal contempt standards here, the Court concludes that while the Attorney General’s statements about this case constituted violations of the October 23, 2001 Order, the record lacks evidence of willfulness that might warrant contempt charges against the Attorney General.
As stated earlier, a contempt charge under § 401(3) requires proof of a willful violation of a reasonably definite and specific court order. The order at issue here, of course, is the Court’s October 23, 2001 Order regulating counsel’s public communications about the case. Specifically, this Order prohibited the “release of information or opinion about this criminal proceeding which a reasonable person would expect to be disseminated by any means of public communication, if there is a reasonable likelihood that such disclosure will interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice.” The question before the Court, then, is whether the Attorney General’s statements at his October 31, 2001 and April 17, 2003 press briefings concerning matters related to this case constituted willful violations of the October 23, 2001 Order. This inquiry, in turn, has three separate parts: (1) Was the Court’s Order reasonably definite and specific? (2) Did the Attorney General’s comments, either individually or collectively, constitute a violation of this Order? and (3) Was any violation of the Order willful? The Court addresses each of these points in turn.
As a threshold matter, the Court readily concludes that its October 23, 2001 Order was sufficiently definite and specific to sustain a contempt charge under § 401(3). The “reasonable likelihood of prejudice” standard set forth in the Order precisely tracks the language of Disciplinary Rule 7-107 of the American Bar Association’s Model Code of Professional Responsibility, the precursor to the ABA’s Model Rules of Professional Conduct. Several states have adopted this standard for regulating the public statements of attorneys about pending cases in which they appear, and at least two Courts of Appeals have held that this standard passes constitutional muster. See In re Morrissey, 168 F.3d 134, 139-40 (4th Cir.), cert. denied, 527 U.S. 1036, 119 S.Ct. 2394, 144 L.Ed.2d 794 (1999); Cutler, supra, 58 F.3d at 835-36.
Thus, there is nothing inherently unfamiliar or indefinite in the Court’s instruction to refrain from public statements that bear a “reasonable likelihood” of prejudice.
More importantly, the parties themselves, both the Government and Defendants alike, proposed the language contained in the October 23, 2001 Order. Then, having offered this language, counsel for the Government and Defendants alike expressly stipulated to the entry of this Order. As set forth earlier, and as further addressed below, the Court and counsel discussed the Order on a number of occasions, with the Court clearly expressing its views as to the sorts of communications that were permissible and prohibited. Throughout all of this, the Government has never once indicated any uncertainty about the obligations imposed under the Order, not even in response to Defendants’ present motion. Nor does the Government challenge the Order as an unconstitutional restraint upon the Attorney General’s duty to communicate with the public regarding matters of executive policy. Under these circumstances, indefiniteness provides no defense, and the Government does not contend otherwise.
The next question, therefore, is whether the Attorney General violated the October 23, 2001 Order in his two public statements about this case. As an initial matter, the Court observes that the Attorney General himself conceded, in his November 26, 2003 letter to the Court, that “[i]n retrospect” he could “appreciate how these two statements, however brief and passing, taken either individually or collectively could have been considered by the Court to be a breach of ... the Court’s Order.” (Attorney General 11/26/2003 Letter at 1.) While this may not constitute an express admission that the statements violated the Order, it nonetheless is a direct acknowledgment of the potentially violative and prejudicial effect of these statements. Beyond the Attorney General’s own acknowledgment, moreover, additional considerations compel the Court to conclude that its Order was violated.
Specifically, beginning with the October 31, 2001 press briefing, the Attorney General stated on this occasion that the three Defendants arrested on September 17, 2001 were “suspected of having knowledge of the September 11th attacks.” As the Government now concedes, this remark “was unfortunately mistaken.” (Government’s Response at 11.) The Government has never alleged or produced any evidence that Defendants had any involvement with or knowledge of the September 11 terrorist attacks, and the Department of Justice issued a retraction to this effect shortly after the Attorney General made this comment.
There is ample basis to conclude that this statement violated the October 23, 2001 Order. One can scarcely imagine a stronger condemnation than association with the worst attack ever perpetrated on U.S. soil. This was all the more true at the time of the Attorney General’s remarks, just over a month after the tragic events of September 11. To misstate the Government’s allegations and evidence on such a highly-charged and emotional issue surely was “reasonably] likel[y]” to “interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice” in this case. Indeed, in listing examples of disclosures that are “more likely than not to have a material prejudicial effect on a proceeding,” the commentary to the ABA Model Rules cites the public release of information “that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.” ABA Model Rules of Professional Conduct, Rule 3.6, cmt. 5.
In arguing that there was no violation, the Government points out (i) that the Attorney General’s statement was a passing remark made during the course of a lengthy press briefing, (ii) that this incident occurred nearly 18 months before trial, and (iii) that the Department of Justice issued a retraction just two days later. Viewed in this larger context, the Government contends that the danger of prejudice was minimal. As proof of this, the Government notes that the extensive individual jury voir dire before trial failed to disclose any actual prejudice — each juror who was selected professed an ability to distinguish between the September 11 attacks and the charges in this case, and none reported having been influenced by any erroneous statement or allegation regarding Defendants’ purported knowledge of the attacks. As the Government observes, “evidence that the [attorney]-generated publicity did not in fact taint the jury pool may be relevant to the issue whether those statements were likely to interfere with a fair trial.” Cutler, 58 F.3d at 836 (citing Gentile, 501 U.S. at 1047, 111 S.Ct. at 2730 (Kennedy, J., dissenting in part)).
Yet, Gentile and its progeny cut as much against the Government’s position as for it. Both Chief Justice Rehnquist and Justice Kennedy recognized, for example, that statements made “well in advance of trial” pose less of a danger of prejudice. Gentile, 501 U.S. at 1079, 111 S.Ct. at 2747 (Rehnquist, C.J., dissenting in part); 501 U.S. at 1044, 111 S.Ct. at 2729 (Kennedy, J., dissenting in part). But their separate opinions also observed that “damaging” and “highly inflammatory” statements are not so readily cured through the passage of time. 501 U.S. at 1044, 111 S.Ct. at 2729 (Kennedy, J., dissenting in part); 501 U.S. at 1079, 111 S.Ct. at 2747 (Rehnquist, C.J., dissenting in part). As noted, it is difficult to envision a statement more damaging or inflammatory than one which links a criminal defendant to the events of September 11.
Moreover, a statement made even in the early stages of a criminal proceeding can still be quite prejudicial if, for example, it is “timed to have maximum impact, when public interest in the case [i]s at its height immediately after [the defendant] [i]s indicted.” Gentile, 501 U.S. at 1079, 111 S.Ct. at 2747 (Rehnquist, C.J., dissenting in part); see also Cutler, 58 F.3d at 837. A prompt retraction would not necessarily cure this prejudice, because the impact of pretrial publicity “must be judged at the time a statement is made.” Gentile, 501 U.S. at 1047, 111 S.Ct. at 2730 (Kennedy, J., dissenting in part); see also Cutler, 58 F.3d at 836. Here, the Attorney General’s initial statement was made shortly after Defendants were indicted, and in the immediate aftermath of September 11 when public anxiety and demands for swift justice were at their height. Though the Justice Department is to be commended for its prompt retraction, it is not self-evident that the Department’s clarifying statement was as widely distributed and reported as the Attorney General’s initial remarks, so that any danger of prejudice was quickly and thoroughly dispelled.
Consequently, the Court finds that the Attorney General’s statement at the October 31, 2001 press briefing violated the Court’s October 23, 2001 Order. Although it appeared that this statement had been forgotten by the time of trial, and although the extensive voir dire revealed no actual prejudice to Defendants’ right to a fair trial, the Court cannot help but conclude that an unfounded statement linking an individual of Middle Eastern origin to the September 11 attacks is reasonably likely to prejudice this individual’s subsequent criminal trial. Indeed, everyone involved in this case recognized the prejudicial effect of such a link, and one of the principal aims of voir dire was to ensure that jurors did not unfairly associate Defendants with the attacks on New York and Washington, D.C. While this line of inquiry undoubtedly would have been pursued even in the absence of any statement suggesting such a connection, this merely highlights the importance, under the circumstances presented here, of avoiding any remarks that might exacerbate this known concern.
The surrounding context, in short, heightened rather than reduced the likelihood that the Attorney General’s statement might interfere with a fair trial.
Turning to the Attorney General’s second statement regarding this case, this occurred on April 17, 2003, in the fourth week of an eleven-week trial. That same day, one of the Government’s key witnesses, Youssef Hmimssa, had just concluded his fifth and final day of testimony. At a Washington, D.C. press conference, the Attorney General cited Mr. Hmimssa as one of several examples of cooperating witnesses who had provided assistance in the Government’s war on terror. Specifically, the Attorney General noted that Hmimssa had “pled guilty to multiple criminal charges and [wa]s currently cooperating in the Detroit cell case,” and he stated that Hmimssa’s “testimony is — has been of value, substantial value, in that respect.”
The Court finds that these April 17, 2003 remarks, like the statements at the October 31, 2001 press briefing, violated the October 23, 2001 Order. Notably, the Attorney General’s more recent statement, like his earlier one, falls within a category of disclosures deemed “more likely than not to have a material prejudicial effect” in the commentary accompanying the ABA Model Rules. See ABA Model Rules of Professional Conduct, Rule 3.6, cmt. 5 (citing statements relating to “the character, credibility, [or] reputation ... of a party, suspect in a criminal investigation or witness” as potentially problematic). The witness in question here, Youssef Hmimssa, was a focal point of the Government’s case, and he had just stepped down from the witness stand at the time the Attorney General referred to him. Moreover, it is perhaps an understatement to say that Mr. Hmimssa’s credibility was at issue, with defense counsel having just concluded three days of vigorous cross-examination. Against this backdrop, the Attorney General’s statement that Hmimssa’s “testimony ... has been of value, substantial value,” plainly was “reasonably] likel[y]” to “interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice.”
In maintaining otherwise, the Government cites many of the same factors addressed above with regard to the October 31, 2001 statement. The Government again notes, for example, that the Attorney General’s brief reference to this case was only a small part of a lengthy press conference addressing a myriad of subjects related to the war on terror. The Government further points to the clarification offered by a Justice Department spokesperson the very next day, stating that “[w]e certainly had no intent to contravene the judge’s wishes regarding publicity.” Moreover, there was little danger, in the Government’s view, that Defendants’ fair trial rights would actually be prejudiced, in light of the Court’s repeated and strict instruction that the jurors were to avoid reading or viewing any reports or statements about the case. Finally, the Government argues that the statement itself did not reflect any attempt to bolster the credibility of a witness, but rather was a more general observation about the valuable role of cooperating individuals in the war on terror.
Addressing the last of these points first, the Court fails to see how a potentially innocent interpretation renders the Attorney General’s statement any less violative of the October 23, 2001 Order. It is perhaps possible that this statement, viewed in the context of the Attorney General’s broader discussion about the importance of persons who agree to cooperate, could be construed as highlighting the “substantial value” of Youssef Hmimssa’s cooperation, versus the testimony itself. It is also true, as the Government points out, that the Attorney General’s remarks fall short of the “blunt comments” cited by the Sixth Circuit as instances of improper vouching — a statement by a prosecutor, for example, that “I think he [the witness] was candid” and “I think he is honest.” United States v. Francis, 170 F.3d 546, 550 (6th Cir.1999) (internal quotations and citation omitted).
Yet, there is no escaping the brute fact that the Attorney General expressly referred to Youssef Hmimssa’s testimony as having “substantial value,” and that this remark immediately followed the observation that Hmimssa was “currently cooperating” in this case. Surely, Hmimssa’s testimony would not be of “substantial value” to the Government if the Attorney General did not deem it to be credible. Just as clearly, this testimony would not be of “substantial value” to the Government’s efforts in this case unless the jury elected to credit it — and, significantly, the jury had not yet commenced its deliberations. This sort of statement, then, comes quite close to the second form of improper vouching identified in Francis — namely, “comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.” Francis, 170 F.3d at 550. Consequently, even assuming that the Attorney General’s statement could be given a less problematic interpretation, it is equally or far more likely that it could be construed quite literally as an expression of the “substantial value” of the testimony of a key Government witness in a pending trial. This very real prospect of mischief, in the Court’s view, is more than sufficient to trigger the “reasonable likelihood of prejudice” prohibition set forth in the October 23, 2001 Order.