Legal Doc: Jonathan Pollard's Petition to the United States Supreme Court for a Writ of Certiorari

QUESTION PRESENTED

The United States Court of Appeals for the District of Columbia Circuit, in a two-to-one ruling, held that the doctrine of separation of powers precludes the exercise of subject matter jurisdiction, by a United States district court, over a defendants post-conviction motion to allow his successor counsel access to classified docket materials considered by the district court prior to sentencing, if the purpose of the desired access is to enable counsel to study the court record in order to make an application for executive clemency. The Court of Appeals reached this conclusion sua sponte even though the district courts protective order, pursuant to which the documents were placed under seal, expressly contemplated access by successor counsel with court approval.

The Court of Appeals held that, because the objective of the desired access was to enable counsel to prepare a clemency application with knowledge of the full court record, and because the decision whether or not to grant clemency is constitutionally allocated to the Executive Branch, it would somehow violate the doctrine of separation of powers if the court were to exercise its jurisdiction in order to decide whether or not to grant the motion for access to the courts own docket.

This extreme and unprecedented application of the doctrine of separation of powers is incompatible with longstanding principles established by this Court, and is in conflict with the approach to the doctrine followed in the Fourth, Fifth, Sixth, and Ninth Circuits.

This petition, which implicates the fundamental issue of the scope and breadth of the doctrine of separation of powers, presents the following question:

Where a federal district court has placed classified court docket materials under seal pursuant to a protective order which expressly provides for future access to the docket materials with court approval, does the separation of powers doctrine mandate that the court lacks subject matter jurisdiction to allow security-cleared successor counsel access to its docket materials simply because counsels objective in seeking access is to study the court record in order to prepare and submit a clemency application?

THE PARTIES

The parties below are listed in the caption. In addition, the following appeared below as amici curiae on behalf of petitioner Jonathan J. Pollard: The National Association of Criminal Defense Lawyers; The American Civil Liberties Union of the National Capital Area; the American Association of Jewish Lawyers and Jurists; and various law professors and other distinguished individuals.

Page #

QUESTION PRESENTED................................................................................................................ i

THE PARTIES ii

TABLE OF CONTENTS................................................................................................................. iii

TABLE OF CITED AUTHORITIES................................................................................................. v

TABLE OF APPENDICES.............................................................................................................. vi

OPINIONS BELOW....................................................................................................................... vi

BASIS FOR JURISDICTION IN THIS COURT............................................................................. 1

STATEMENT OF THE CASE......................................................................................................... 1

Background....................................................................................................................................... 2

A. The Protective Order........................................................................................................ 2

B. New Counsel Enter the Case and Obtain Security Clearance............................................. 4

C. The Governments Opposition to Executive Clemency....................................................... 4

D. The Access Motion........................................................................................................... 4

E. The Motion for Modification.............................................................................................. 6

F. The Bryant Letter.............................................................................................................. 7

G. The November 12, 2003 Order........................................................................................ 9

H. The Decision of the Court of Appeals................................................................................ 9

1. The Majority Opinion.............................................................................................. 10

2. The Dissent............................................................................................................. 10

I. The En Banc Petition....................................................................................................... 12

REASONS FOR GRANTING THE PETITION............................................................................ 12

Summary Of Argument.................................................................................................................... 12

THE COURT SHOULD GRANT CERTIORARI TO DEFINE THE SCOPE AND BREADTH OF THE DOCTRINE OF SEPARATION OF POWERS, PARTICULARLY WITH RESPECT TO THE RELATIONSHIP BETWEEN THE EXECUTIVE AND JUDICIAL BRANCHES 13

A. The Doctrine of Separation of Powers Does Not Mandate A Rigid and Absolute Separation of the Three Branches of Government 14

B. The Doctrine of Separation of Powers Requires a Pragmatic Evaluation of the Impact of the Exercise by the Court of Subject Matter Jurisdiction Over the Access Motion on the Presidents Clemency Authority..................... 16

C. The Approach to the Separation of Powers Taken by the Majority Below Conflicts Directly With the Approach Taken by the Fourth, Fifth, Sixth and Ninth Circuits................................................................................................... 19

D. The Majoritys Approach Unwittingly Resulted in a Violation of the Doctrine of Separation of Powers 21

CONCLUSION 22

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

CERTIFICATE OF SERVICE

TABLE OF CITED AUTHORITIES

Federal Cases

Buckley v. Valeo,
424 U.S. 1 (1976)................................................................................................................ 15, 16

Duplantier v. U.S.,
606 F.2d 654 (5th Cir. 1979)...................................................................................................... 20

Humphreys Executor v. United States,
295 U.S. 602 (1935).................................................................................................................. 14

Mistretta v. United States,
488 U.S. 361 (1988)............................................................................................................ 17, 18

Morrison v. Olson,
487 U.S. 654 (1988).................................................................................................................. 18

Nixon v. Administrator of General Services,
433 U.S. 425 (1977)................................................................................................ 14, 15, 18, 19

United States ex. rel. Kaloudis v. Shaughnessy,
180 F.2d 489 (2d Cir. 1950)...................................................................................................... 10

United States v. El-Sayegh,
131 F.3d 158 (D.C. Cir. 1997)................................................................................................... 17

United States v. Moussaoui,
382 F.3d 453 (4^th Cir. 2004), cert. denied, __ U.S. __,
125 S.Ct. 1670 (2005)............................................................................................................... 19

United States v. Nixon,
418 U.S. 683 (1974).................................................................................................................. 15

United States v. Pollard,
2005 U.S. App. LEXIS 24393 (D.C. Cir. Nov. 10, 2005)...................................................... 1, 12

United States v. Pollard,
290 F. Supp. 2d 165 (D.D.C. 2003)........................................................................................ vii, 9

United States v. Ray,
375 F.3d 980 (9th Cir. 2004)...................................................................................................... 20

United States v. Williams,
15 F.3d 1356 (6^th Cir.), cert. denied, 513 U.S. 966 (1994)........................................................ 20

State Cases

28 U.S.C. § 1254(1)......................................................................................................................... 1

Statutes and Rules

1 Joseph Story, Commentaries on the Constitution
of the United States, Section 525 (M. Bigelow, 5^th ed. 1905)....................................................... 15

The Federalist No. 47 (J. Cooke ed. 1961)..................................................................................... 14

TABLE OF APPENDICES

Appendix A ... Opinion of the United States Court of Appeals for the District of Columbia Circuit, decided July 22, 2005
Appendix B ... Order of the United States District Court for the District of Columbia, filed November 12, 2003
Appendix C ... Memorandum Order of the United States District Court for the District of Columbia dated and filed January 12, 2001
Appendix D ... Order (per curiam) of the United States Court of Appeals for the District of Columbia Circuit, filed November 10, 2005

OPINIONS BELOW

The opinion of the United States Court of Appeals for the District of Columbia Circuit dated July 22, 2005 is reported at United States v. Pollard, 416 F.3d 48 (D.C. Cir. 2005) (Appendix A).

The Court of Appeals affirmed:

(a) A Memorandum Order of the U.S. District Court for the District of Columbia dated and filed January 12, 2001, which denied Pollards Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order. (Not reported.) (Appendix C) (A-440)[1]

(b) An Order of the U.S. District Court for the District of Columbia dated August 7, 2001 and entered August 9, 2001, which denied Pollards Motion for Reconsideration of the January 12, 2001 Memorandum Order. (Not reported.) (A-635)

(c) An Order of the U.S. District Court for the District of Columbia, filed November 12, 2003, which denied Pollards Motion for Modification of the Courts January 12, 2001 Memorandum Order Based Upon the Governments August 3, 2001 Letter. This Order is reported at United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003). (Appendix B) (A-866)

BASIS FOR JURISDICTION IN THIS COURT

The Court of Appeals entered its opinion and order on July 22, 2005. Petitioner filed a timely petition for rehearing en banc, which was denied on November 10, 2005. See United States v. Pollard, 2005 U.S. App. LEXIS 24393 (D.C. Cir. Nov. 10, 2005)(per curiam).

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

On July 22, 2005, a divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed, on separation of powers grounds, Orders of the United States District Court for the District of Columbia which denied the motion by petitioner Jonathan J. Pollard to allow his security-cleared counsel access to classified pre-sentencing memoranda and related materials that had been filed with the district court in 1987 (the Access Motion). The documents had been placed under seal pursuant to a protective order (A-72) (the Protective Order) which explicitly contemplated future access by, inter alia, successor counsel with proper clearance, subject to court approval.

Petitioner was sentenced to life in prison in 1987, following a guilty plea. Prior to sentencing, the Government and the defense (through prior counsel) submitted pre-sentencing memoranda to the Court. Classified portions of the memoranda were redacted by the Court Security Officer. The redactions totaled approximately 40 pages. The unredacted materials (the Docket Materials) were placed under seal by the district court pursuant to the Protective Order.

No subsequent representative of petitioner has seen the Docket Materials. Current counsel, who have the appropriate security clearance, seek access so that they can study the full record in order to prepare and submit an application for executive clemency. The Access Motion, made pursuant to the Protective Order, sought access to the Docket Materials in a secure Government facility, under strict conditions of confidentiality.

Because the Government below expressly conceded subject matter jurisdiction over the Access Motion, the issue was not briefed. However, at oral argument in the Court of Appeals, one member of the panel (Sentelle, C.J.) sua sponte questioned the courts jurisdiction.

In a written opinion by a divided panel issued July 22, 2005, the majority (Sentelle and Henderson, C.JJ.) held that, due to the constitutional allocation of the clemency power to the President, the doctrine of separation of powers mandates that federal courts lack jurisdiction to allow access to their own dockets if the objective of the access is to enable counsel to prepare and submit an application for executive clemency. United States v. Pollard, 416 F.3d 48, 56-57 (D.C. Cir. 2005).

The dissent (Rogers, C.J.) found that a federal district court unquestionably has jurisdiction to allow access to its own docket, and that the separation of powers does not mandate a contrary result even if the objective of the access is to prepare a clemency application. The dissent reasoned that allowing access to its own docket materials is plainly within the province of the court, is contemplated by the Protective Order, and would not interfere in any way with the Presidents clemency power. Id. at 58-61 (Rogers, J. dissenting).

Background

A. The Protective Order

On June 4, 1986, pursuant to a written Plea Agreement, petitioner pleaded guilty to conspiracy to commit espionage. Petitioner had delivered classified information to the State of Israel. (A-32)

Prior to sentencing, the Government and the defense each submitted memoranda to the Court. Pursuant to a Protective Order (A-72), a Court Security Officer redacted portions deemed classified. The classified portions were placed under seal. (A-295)

Inter alia, the Protective Order contemplated future access by security-cleared non-governmental persons (such as successor counsel) with permission of the Court:

All other individuals other than defendant, above-named defense counsel, appropriately cleared Department of Justice employees, and personnel of the originating agency, can obtain access to classified information and documents only after having been granted the appropriate security clearances by the Department of Justice through the Court Security Officer and the permission of this Court.

(A-73) (emphasis added).

Four documents were redacted: a Declaration of Secretary of Defense Caspar Weinberger (A-450-469); a memorandum personally prepared by petitioner (A-471-533); a memorandum prepared by petitioners then-attorney, Richard Hibey (A-535-582); and the Governments reply (A-584-609). In addition, the minutes of a sidebar conference held during sentencing were placed under seal. (A-612) The redactions totaled approximately 40 pages. (A-638)

Prior to sentencing, petitioner and his then-attorney were allowed access to the Docket Materials. (A-391) However, since the sentencing nearly 19 years ago, no one representing petitioner has been allowed to see the Docket Materials. (A-296) A heavily redacted version is in the public record. (A-450-613)

On March 4, 1987, petitioner was sentenced to life in prison. (A-155) He has been incarcerated continuously since his arrest on November 21, 1985. (A-28) Petitioner is currently serving his twenty-first year of a life sentence.

B. New Counsel Enter the Case and Obtain Security Clearance

On May 17, 2000, petitioner retained the undersigned (Eliot Lauer and Jacques Semmelman) as pro bono counsel.

Counsel applied for security clearance for the express and sole purpose of seeing the Docket Materials. On November 2, 2000, following a thorough investigation, the United States Department of Justice (DOJ) granted Mr. Lauer Top Secret security clearance.[2] Nevertheless, the DOJ thereafter refused to stipulate to access under the Protective Order. (A-294)

C. The Governments Opposition to Executive Clemency

Seeking relief from his life sentence, petitioner has sought executive clemency on several occasions. Each application has been met with fierce opposition from the DOJ. (A-398-399, 403) The record below reflects that DOJ personnel have been unilaterally allowed access by the DOJ to copies of the sealed Docket Materials specifically in connection with the DOJs opposition to executive clemency. (A-754, 766, 769, 773)

D. The Access Motion

On November 29, 2000, counsel for petitioner filed an Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order, which asked the Court, in accordance with the Protective Order, to add Mr. Lauers name to the list of persons designated in the Protective Order as authorized to see the Docket Materials (the Access Motion). (A-289)

In an affidavit, Mr. Lauer explained that, with then-President Clinton in the final weeks of his administration, petitioners counsel required access to the Docket Materials to represent petitioner in connection with a clemency application:

In order to represent [petitioner] effectively, it is essential for counsel to see what is in the sealed docket materials, so that (consistent with maintaining the confidentiality of the materials) counsel may address and respond to arguments by those who oppose executive relief on the basis of what is set forth in the sealed materials.

(A-296)

The Access Motion was not a discovery motion. Counsel was only asking to see Docket Materials that had already been shown to petitioner and his prior counsel, and submitted to the Court prior to sentencing.

On December 8, 2000, the Government filed its Opposition to the Access Motion. (A-327) Inter alia, the Government asserted that counsel had no need-to-know what was in the Docket Materials. (A-331) The Government stated that the Docket Materials were irrelevant to clemency and the mere possibility that those opposing executive relief may cite the sealed materials was insufficient to demonstrate a need-to-know. (A-331, 334)

At oral argument in the district court, the Government continued to insist that the Docket Materials were irrelevant to the clemency process. The Government asserted that there was no need-to-know because the Docket Materials were outdated, dormant, and of no conceivable relevance to a clemency determination. (A-427-428) The Government argued that materiality and relevance are the touchstones of need-to-know. (A-428) Contending that it doesnt make sense why President Clinton would be using a damage assessment that was written over a decade ago, the Government emphasized that if the President isnt using Secretary Weinbergers materials, then there is no relevance and there is no materiality. . . . They havent demonstrated such a use to this Court. And so they cant make the need to know. (A-426-427)

By Memorandum Order dated January 12, 2001, the district court (Johnson, J.) denied the Access Motion. (Appendix C) The court did not express any concern, based upon the separation of powers or otherwise, about its jurisdiction to adjudicate the Access Motion.

On January 19, 2001, counsel for petitioner filed a timely Motion for Reconsideration. (A-444) On August 7, 2001, the district court (Johnson, J.) issued an Order denying the Motion for Reconsideration. (A-635) Again, the court expressed no concern about the separation of powers or about its jurisdiction.

E. The Motion for Modification

In addition to opposing the Access Motion on the ground that there was no need-to-know, the Government represented to the district court that, notwithstanding the security clearance bestowed on Mr. Lauer by the DOJ, Mr. Lauer was not eligible to see the Docket Materials because he did not have the proper security clearance, namely, Secure Compartmented Information (SCI). (A-333, 424, 438) The district court (Johnson, J.) accepted the Governments representation as another basis for denying the Access Motion. (A-440) However, the representation turned out to be untrue.

In the aftermath of the Governments representation to the district court that the DOJ had somehow granted defense counsel inadequate security clearance, defense counsel complained to the DOJ for having granted a security clearance now said to be inadequate for the sole purpose for which the clearance was sought, namely, to allow access to the Docket Materials. Counsel again requested that the DOJ accord the appropriate security clearance to enable counsel to have access to the Docket Materials. (A-659-660)

In response, by letter dated August 3, 2001 (the August 3, 2001 Letter), DOJ Court Security Officer Michael P. Macisso wrote:

Even though your background investigations will support SCI access, there are other criteria which must be met, including an SCI indoctrination briefing and a need to know determination from the Court or the government. . . . Absent a need to know ruling from the Court or the government, the Department of Justice will not be able to upgrade your clearance level or provide you access to this material.

(A-650) (emphasis added). The August 3, 2001 Letter thus conceded what the Government had effectively denied in Courtthat the Governments background investigation will support SCI access, and that (following a briefing) SCI access will be given automatically if counsel has a need to know. (A-650)

The Government never told the district court that any impediment to SCI clearance would be obviated upon determination of a need-to-know. To the contrary, the Government created the false impression that clearance would remain an insurmountable obstacle even if the Court found that counsel had a need-to-know. (A-333, 424)

On August 16, 2001, counsel for petitioner filed a Motion for Modification of the Courts January 12, 2001 Memorandum Order Based Upon the Governments August 3, 2001 Letter. (A-650)

F. The Bryant Letter

On September 10, 2001, Assistant Attorney General Daniel J. Bryant responded to a request by Congressman Anthony Weiner of New York for information concerning who, if anyone, had been afforded access by the DOJ to copies of the Docket Materials since petitioners sentencing in 1987. (A-663-664, 754) Mr. Bryants letter contained another startling admission:

With regard to the number of persons having access to the documents since Mr. Pollards sentencing, we can only provide the number of visits recorded in the log of the Security and Emergency Planning Staff. There were 25 instances of access recorded between November 19, 1993 and January 12, 2001. In some instances, a single individual accessed the documents on more than one occasion.

(A-754) (emphasis added). This admission repudiated the premise of the Governments Opposition to the Access Motion that there was no need-to-know because the Docket Materials had become outdated and irrelevant, and were of no interest whatsoever. (A-331-334, 427-428)

Since the Government insists it has only allowed access to the Docket Materials to those with a need-to-know (A-655), the Bryant Letter effectively conceded that on 25 occasions between 1993 and 2001 the DOJ had unilaterally determined that someone had a need-to-know.

The Bryant Letter did not disclose the circumstances under which the DOJ had allowed the 25 instances of access. However, since the Docket Materials comprise pre-sentencing memoranda and sentencing minutes, and do not comprise defense or intelligence files, it is apparent that these instances of Government access were all in connection with initiatives related to petitioner (as opposed to unrelated inspections for defense or intelligence purposes). At least one instance of DOJ access has been directly linked to the DOJs opposition to executive clemency in response to a request for clemency made by then-Israeli Prime Minister Yitzhak Rabin to then-President Clinton. (A-754, 766, 769, 773)

On May 9, 2002, counsel filed a Motion to Enlarge the Scope of the Pending Motion for Modification, to include the Bryant Letter. (A-749) The motion was granted. (A-783)

G. The November 12, 2003 Order

By Order dated March 4, 2002, the district court case was reassigned to Hon. Thomas F. Hogan. (A-734) On September 2, 2003, Judge Hogan heard oral argument on the Motion for Modification. (A-784) No jurisdictional objection was raised by the Government or by the Court. On November 12, 2003, Judge Hogan denied the Motion for Modification, without expressing any jurisdictional or separation of powers concerns. (A-865) See United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003) (Appendix B).

H. The Decision of the Court of Appeals

Appellant timely appealed from the January 12, 2001 Order, the August 7, 2001 Order, and the November 12, 2003 Order. (A-665, 869)

In an opinion issued July 22, 2005, a divided panel of the D.C. Circuit affirmed. Even though the Governments brief had expressly conceded jurisdiction based upon the specific terms of the Protective Order (Govt Brief at p. 44 n.25), the majority (Sentelle and Henderson, C.JJ.) ruled sua sponte that, notwithstanding the terms of the Protective Order, due to the doctrine of separation of powers a federal court lacks jurisdiction to hear a motion for access to classified court docket materials if the objective of the desired access is to make a clemency application. United States v. Pollard, 416 F.3d 48, 56-57 (D.C. Cir. 2005) (Appendix A).

Judge Rogers dissented, finding, in light of the Protective Order, that jurisdiction plainly exists to allow access to the Docket Materials irrespective of the motivation for seeking access, and that granting access in this case would not infringe in any way on the Presidents clemency power or otherwise violate the separation of powers.[3] Id., 416 F.3d at 58-61 (Rogers, J., dissenting).

1. The Majority Opinion

The majority held that we lack the authority to compel the executive branch to disclose any documents for the purposes of a clemency petition, and that it is entirely out of our power to compel discovery of or access to documents for the sake of a clemency petition. Pollard, 416 F.3d at 57. The stated rationale was that [t]he Constitution entrusts clemency decisions to the Presidents sole discretion and clemency is a matter of grace, over which courts have no review[.] Id. at 57 (quoting United States ex. rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950)).

2. The Dissent

In a dissenting opinion, Judge Rogers noted the absence of legitimate separation of powers concerns and concluded that the district court unquestionably had jurisdiction to grant access to the Docket Materials. Pollard, 416 F.3d at 58-61 (Rogers, J., dissenting).

The dissent observed that the Docket Materials were created for [petitioners] sentencing, filed with the district court, and sealed pursuant to a Protective Order. Id. at 58. The dissent also noted that [p]ursuant to the Protective Order, persons not identified therein, such as [petitioners] current counsel, may obtain access after receiving security clearance, which includes a need to know, and obtaining the permission of the district court. Id. at 58. On these facts, there is no jurisdictional bar to the courts consideration of the access motion[.] Id. at 61.

The dissent explained that the majoritys reasoning ignore[d] the fact . . . that the documents at issue were created as part of a judicial process and are governed by the Protective Order. Id. at 59. While the Docket Materials are nominally in the custody of the Justice Departments Security and Emergency Planning Staff, the district court has continuing control over them on account of the perpetual Protective Order[.] Id. at 59. The logical implication of the majoritys view is that the district court would be in the untenable position of lacking jurisdiction over motions that relate to documents that were filed with it and over which it has continuing control. Id. at 59.

The dissent noted that while the majority hypothesizes a conflict with the Presidents clemency power under the Constitution, neither the request for access nor the Courts grant of access poses interference with the Presidents clemency power. Id. at 58. And the court today never explains how the district courts exercise of jurisdiction over the access motion impairs or interferes with the Presidents clemency power, and, indeed, it cannot because the motion does not involve the Presidents constitutional prerogative to grant clemency or even the process by which the President decides whether or not to grant clemency[.] Id. at 60.

The dissent found that nothing in the Access Motion impaired in any way the workings of the Executive in the clemency process:

The access motion does not relate to the Presidents decision regarding clemency, as he remains free to review, ignore, act on, or fail to act on any petition for clemency that Pollards counsel might file, regardless of whether a court determines that his counsel may have access to classified documents to prepare such a petition. Thus, the Presidents constitutional duty is not only unimpaired by the access motion, it is wholly unaffected by it.

Id. at 60 (emphasis added).

The dissent concluded by observing that [i]t is curious that the court relies on separation-of-powers principles to preclude federal court review, ignoring the logical implications of our precedent. Id. at 61 (emphasis added).

I. The En Banc Petition

Petitioner timely petitioned for en banc review. The Court of Appeals directed the Government to respond.

On November 10, 2005, the Court of Appeals denied the petition without opinion. United States v. Pollard, 2005 U.S. App. LEXIS 24393 (D.C. Cir. Nov. 10, 2005) (per curiam) (Appendix D).

REASONS FOR GRANTING THE PETITION

Summary Of Argument

The Court of Appeals unprecedented application of the doctrine of separation of powers led it to conclude that, because the objective in seeking access is in connection with a clemency application, the doctrine deprived the district court of jurisdiction to decide who may have access to its very own Docket Materials. This approach to the doctrine of separation of powers is incompatible with longstanding principles established by this Court, and conflicts with the approach followed in the Fourth, Fifth, Sixth and Ninth Circuits.

Instead of basing its decision on the objective of the desired access, which is irrelevant to the separation of powers, the majority should have analyzed the practical impact of deciding the Access Motion on the Executives clemency power, and should have made a determination regarding the potential for disruption of, or interference with, the Presidents power to grant or deny clemency.

The dissent conducted such an analysis and concluded that no separation of powers concerns were implicated. The majority conducted no such analysis, basing its decision entirely on the untenable rationale that because clemency is an Executive function, the Judiciary lacks jurisdiction to decide a motion that seeks access to a judicial docket if the purpose is to see the court record in order to make an effective clemency application.

The D.C. Circuits unprecedented decision has far-reaching implications. If allowed to stand, it would render the Judiciary powerless in the face of any linkage, however attenuated, to the processes of another Branch of government, even in the absence of any intrusion on the other Branchs constitutional authority.

The doctrine of separation of powers is not so restrictive. The D.C. Circuits decision warrants review by this Court.

THE COURT SHOULD GRANT CERTIORARI TO
DEFINE THE SCOPE AND BREADTH OF THE DOCTRINE OF
SEPARATION OF POWERS, PARTICULARLY WITH RESPECT TO THE
RELATIONSHIP BETWEEN THE EXECUTIVE AND JUDICIAL BRANCHES

Petitioner respectfully submits that the majoritys application of the doctrine of separation of powers is incompatible with fundamental principles established by this Court, and is in conflict with the approach followed in other circuits, including the Fourth, Fifth, Sixth, and Ninth Circuits.

The D.C. Circuits Opinion should not be allowed to stand unreviewed. This Court should grant certiorari in order to define the scope and breadth of the doctrine of separation of powers, particularly with respect to the relationship between the Executive and Judicial Branches.

The doctrine of separation of powers requires a careful and thorough analysis into the respective functions of the affected Branches. The analysis must evaluate the extent to which the proposed conduct of one Branch (in this case, the Judiciary) would interfere with or impede the workings of the other Branch (in this case, the Executive).

The majority below performed no such analysis, choosing instead to hold, in effect, that even absent any impact on the authority of the Executive Branch, the doctrine somehow prohibited the district court from exercising jurisdiction over a motion seeking access to its own Docket Materials.

A. The Doctrine of Separation of Powers Does Not Mandate
A Rigid and Absolute Separation of the Three Branches of Government

This case does not involve any judicial intrusion whatsoever on the constitutional authority of the Executive Branch. Indeed, it is difficult to imagine a scenario that involves any lesser intrusion by the Judiciary into that authority. Yet, the majority held that, simply because clemency is petitioners ultimate objective, judicial adjudication of the Access Motion under the Courts Protective Order would somehow constitute a violation of the separation of powers.

This Court has long held that the doctrine of separation of powers does not mandate a rigid and absolute separation of the three Branches of government. Rather, each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others[.] Humphreys Executor v. United States, 295 U.S. 602, 629 (1935)(emphasis added).

In rejecting a rigid demarcation, this Court has expressly endorsed James Madisons flexible approach to the doctrine. According to Madison, separation of powers d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul [sic] over the acts of each other, but rather that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted. The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961)(emphasis in original) (cited with approval in Nixon v. Administrator of General Services, 433 U.S. 425, 443 n.5 (1977)).

Madisons approach was later endorsed by Joseph Story, who wrote:

But when we speak of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution. This has been shown with great clearness and accuracy by the authors of the Federalist.

1 Joseph Story, Commentaries on the Constitution of the United States, Section 525 (M. Bigelow, 5^th ed. 1905)(cited with approval in Nixon, 433 U.S. at 443 n.5).

This fundamental principlethat the separation of powers is not rigid and absolutehas been reaffirmed by this Court time and time again. Buckley v. Valeo, 424 U.S. 1, 121 (1976)(Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government.); Nixon v. Administrator of General Services, 433 U.S. 425, 442-443 (1977) (rejecting as archaic the notion of an airtight separation of authority among the three Branches); United States v. Nixon, 418 U.S. 683, 707 (1974)(the separate powers were not intended to operate with absolute independence).

At oral argument in the Court of Appeals, the Government had conceded that the Protective Order, by its terms, provides for access beyond that allowed in other cases. Whereas in other cases, protective orders typically confine access to the pre-conviction litigation process, the Protective Order in this case is not so circumscribed. Government counsel explained:

[T]oday these protective ordersthese CIPA protective orders are drafted more carefully, shall we say, to circumscribe their use more directly to the casethe criminal case, and not for other purposes.

(Tr. Mar. 15, 2005 oral argument at p. 29.) As petitioners counsel urged (unsuccessfully) at oral argument, the majority should have found jurisdiction based upon the specific terms of the Protective Order, leaving for another day and another case the issue of whether the more circumscribed form of protective order in use today would likewise provide a basis for jurisdiction. The majority chose not to take that approach, instead deciding this case under a rationale that creates a far-ranging precedent that defines the parameters of the doctrine of separation of powers in a way that cannot be reconciled with logic or precedent.

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court observed that in the view of the founders of this nation:

[A] hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Id. at 121. The D.C. Circuits majority opinion not only imposes a hermetic sealing off, but seals off the Branches to such degree that even defense counsels motivation somehow results in the Judicial Branch losing its jurisdiction and control over its own Docket Materials. This illogical result cannot be reconciled with even the most rigid legitimate interpretation of the doctrine of separation of powers.

This Court should grant certiorari to repudiate the untenable approach to the separation of powers taken by the majority below.

B. The Doctrine of Separation of Powers Requires a Pragmatic Evaluation of the Impact of the Exercise by the Court of Subject Matter Jurisdiction Over the Access Motion on the Presidents Clemency Authority

The majority performed no analysis of the practical impact that a judicial exercise of subject matter jurisdiction would have on the Presidents clemency authority.

The majority did not explain, or attempt to explain, how allowing counsel access to materials in a courts docket would interfere with or impede in any way the Presidents power to grant or deny clemency, or how allowing such access would violate the principle that courts may not review clemency decisions.

While petitioner surely hopes that affording his counsel access to the Docket Materials will, ultimately, affect the Presidents discretionary clemency decision to his benefit, that is very far indeed from finding that allowing access would interfere with or impede the Presidents constitutional authority to make the clemency decision.

Indeed, the majority did not engage in any analysis into the appropriate functions of the Executive and Judicial Branches in this context, or how a judicial determination of the merits of the Access Motion could impact those functions. In the absence of interference with, or disruption of, the constitutional authority of the Executive Branch over clemency decisions, there is no violation of the separation of powers. See Mistretta v. United States, 488 U.S. 361, 410 (1988)(negligible threat to independence of one Branch is insufficient to constitute violation of separation of powers).

The majority also did not explain how allowing access to the Docket Materialsprepared for litigation, submitted to the district court, shown to petitioner and his prior counsel, and placed under seal by the district court pursuant to a Protective Orderwould constitute inappropriate compulsion of the Executive Branch to disclose documents.

The Docket Materials were part of the adjudicatory process that resulted in petitioners life sentence. They are unquestionably judicial records. See Pollard, 416 F.3d at 58-59 (Rogers, J., dissenting)(the Docket Materials are certainly judicial records); see also United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997)(what makes a document a judicial record . . . is the role it plays in the adjudicatory process.).

The Governments brief had expressly conceded that the classified information is contained in court documents and subject to a court-issued Protective Order (Govt Brief at p. 42) (emphasis added), and had also expressly conceded the district courts jurisdiction over the access issue in this case because the terms of the Protective Order reserve that role for the court. (Govt Brief at p. 44 n.25) Nevertheless, the majority held that allowing access to the Docket Materials would violate the separation of powers, without regard to the impact (if any) on the Executives power that would result from the Courts exercise of jurisdiction over the Access Motion.

The dissent analyzed the impact of exercising jurisdiction and concluded that the Presidents constitutional duty is not only unimpaired by the access motion, it is wholly unaffected by it. Pollard, 416 F.3d at 60 (Rogers, J., dissenting). The majority did not explicitly challenge this conclusion, but instead treated it as irrelevant, and took the approach that the doctrine of separation of powers draws a rigid demarcation between the Executive and Judicial Branches without regard to the impact, if any, that the conduct of the Judiciary would have on Executive power.

The majoritys approach is fundamentally incompatible with longstanding precedent in this Court.

In applying the doctrine of separation of powers, this Court has regularly examined the practical impact the exercise of authority by one Branch would have on the power of another Branch. See, e.g., Mistretta v. United States, 488 U.S. 361, 380-83, 393 (1988)(in applying the doctrine of separation of powers, courts must utilize flexible, functional analysis that examines practical consequences; in light of fact that three branches of government need not be entirely separate and distinct, doctrine requires caution against aggrandizement or encroachment, rather than a hermetic division among the Branches); Morrison v. Olson, 487 U.S. 654 (1988)(applying pragmatic standard in upholding judicial appointment of independent counsel); Nixon v. Administrator of General Services, 433 U.S. 425, 442-443 (1977) (taking into account the contemporary realities of our political system, expressly reaffirming the more pragmatic, flexible approach of Madison in the Federalist Papers and later of Mr. Justice Story, and concluding no violation of separation of powers where statute which required former President to deliver archives to administrator did not disrupt[] the proper balance between the coordinate branches or prevent[] the Executive Branch from accomplishing its constitutionally assigned functions.).

In Nixon v. Administrator of General Services, this Court held:

[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.

Id., 433 U.S. at 443.

This Court should grant certiorari to repudiate the approach taken by the majority below, in favor of a pragmatic approach that assesses the practical impact of the proposed conduct.

C. The Approach to the Separation of Powers Taken by the Majority Below Conflicts
Directly With the Approach Taken by the Fourth, Fifth, Sixth and Ninth Circuits

In other circuits, the approach to the doctrine of separation of powers is pragmatic and flexible. In those circuits, a violation of the doctrine of separation of powers cannot be premised on conduct by one branch that has no impact whatsoever on the constitutional authority of the other branch. Indeed, in those circuits, violation of the doctrine requires more than some theoretical or incidental impact by the conduct of one branch on the authority of another branch. See United States v. Moussaoui, 382 F.3d 453, 468 (4^th Cir. 2004), cert. denied, __ U.S. __, 125 S.Ct. 1670 (2005)(Separation of powers does not mean . . . that each branch is prohibited from any activity that might have an impact on another.) (emphasis in original); Duplantier v. U.S., 606 F.2d 654, 667 (5th Cir. 1979)(the separation of powers doctrine does not require three airtight departments of government. Rather, the doctrine operates to prohibit one branch of government from unduly impeding the operation of a coordinate branch of government . . . [T]he proper inquiry focuses on the extent to which it prevents the (affected branch) from accomplishing its constitutionally assigned functions. . . . Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.) (internal citations omitted) (emphasis added); United States v. Williams, 15 F.3d 1356, 1360-1364 (6^th Cir.), cert. denied, 513 U.S. 966 (1994)(applying pragmatic test for violation of separation of powers, including whether exercise of authority by judiciary so disrupts the balance of power amongst the three branches as to undermine the purpose of the separation of powers, i.e., protecting against the danger of centralized power); United States v. Ray, 375 F.3d 980, 995 (9th Cir. 2004)(separation of powers doctrine mandates only that each branch be entirely free from the control or coercive influence, direct or indirect, of either of the others) (internal citations omitted).

By contrast, the D.C. Circuits majority opinion expands the scope of the separation of powers doctrine far beyond that of these other circuits, and holds that the doctrine can be violated readily (for example, based on defense counsels state of mind), and without regard to the impact, if any, the proposed conduct would have on the other branch. By holding that exercising jurisdiction over the Access Motion would violate the separation of powers, the majority below redefined the doctrine. This Court should grant certiorari so it can repudiate the approach taken by the D.C. Circuits majority.

D. The Majoritys Approach Unwittingly Resulted
in a Violation of the Doctrine of Separation of Powers

Ironically, in its zeal to establish a rigid demarcation and airtight separation between the Executive and Judicial Branches, the majority created a precedent that violates, rather than furthers, legitimate separation of powers concerns by effectively transferring an inherently Judicial functioncontrol over access to a courts docket materialsto the Executive Branch.

The effect of the majoritys holding is that the very same DOJ that is so opposed to executive clemency for petitioner is now entrusted with de facto control over judicial Docket Materials and given the unfettered power to decide who may or may not have access to those Docket Materials. The record below indicates that the DOJ has unilaterally afforded access to copies of the sealed Docket Materials specifically in connection with the DOJs opposition to executive clemency. (A-754, 766, 769, 773) Yet, the DOJ denies access to counsel for petitioner with proper security clearance, who wish to review the Docket Materials in a secure government facility in order to prepare and submit a clemency application. The DOJ is not neutral and is not an arm of the Judiciary. It should not be delegated the Judiciarys control over its own Docket Material.

By ruling as it did, the majority below established a precedent that raises extremely serious separation of powers concerns in a manner apparently not contemplated by the majority. Judge Rogers correctly noted that the majority was ignoring the logical implications of our precedent. Pollard, 416 F.3d at 61 (Rogers, J., dissenting).

This Court should grant certiorari so that it can consider, upon full briefing and argument, whether to reverse a precedent that, we respectfully submit, incorrectly limits the jurisdiction of the federal courts, and incorrectly delineates the scope of the doctrine of separation of powers.

CONCLUSION

For the foregoing reasons, petitioner respectfully requests that the Supreme Court grant review of this matter.

Respectfully submitted,

Eliot Lauer

Counsel of Record

Jacques Semmelman

CURTIS, MALLET-PREVOST,

COLT & MOSLE LLP

101 Park Avenue

New York, NY 10178

Phone: (212) 696-6000

- and

1200 New Hampshire Avenue, N.W.
Suite 430

Washington, D.C. 20036

Phone: (202) 452-7373

Attorneys for Petitioner

Jonathan Jay Pollard

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

CERTIFICATE OF SERVICE

Robyn Cocho certifies as follows under penalty of perjury:

On February ___, 2006, I caused to be served by overnight mail, postage prepaid, a true copy of the foregoing Petition for Writ of Certiorari on:

Mary McCord, Esq.

Office of the United States Attorney

Judiciary Center Building

555 Fourth Street, N.W.

Washington, D.C. 20530

On February ___, 2006, I caused to be served by overnight mail, postage prepaid, a true copy of the foregoing Petition for Writ of Certiorari on the following amicus counsel below:

Arthur Spitzer, Esq.

American Civil Liberties Union

1400 Twentieth Street

Washington, D.C. 20036

Brett Walter, Esq.

Morrison & Foerster LLP

1650 Tysons Boulevard

Suite 300

McLean, VA 22101

Professor Kenneth Lasson

University of Baltimore School of Law

1420 N. Charles Street

Baltimore, MD 21201

Robert Weinberg, Esq.

American Association of Jewish Lawyers and Jurists

5171 North 37^th Road

Arlington, VA 22207

ROBYN COCHO

[1] Citations in the form A-__ are to the Joint Appendix below.

[2] Mr. Semmelman, a former Assistant U.S. Attorney, received the same clearance shortly thereafter. (A-650)

[3] Judge Rogers concluded that counsel had no need-to-know what was in the Docket Materials. Pollard, 416 F.3d at 61-63 (Rogers, J., dissenting). The majority expressly did not reach the issue of whether counsel had a need-to-know. Id., 416 F.3d at 56-57. Accordingly, should this Court reverse, the Court below would have to address the issue of need to know.

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