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Susan McDougal will not get access to court documents related to her civil contempt case for refusing to testify before a grand jury investigating Whitewater in the 1990s.
On Monday, the 8th U.S. Circuit Court of Appeals said McDougal doesn’t have a common law right to access the grand jury documents and that she hasn’t shown she has any particular need for the documents.
McDougal told the Court of Appeals she wants the documents to help her write a screenplay or novel about alleged coercive tactics of independent counsel Kenneth W. Starr, who was investigating the Whitewater Development Corp. business venture.
The Whitewater real estate transactions were a source of controversy throughout the Clinton administration since Bill and Hillary Clinton were business partners with McDougal.
In a twist, Judge Stephen N. Limbaugh Jr., cousin of the talk show host who helped fan the flames of the Whitewater scandal, sat in on the case as a visiting judge.
McDougal, her former husband, James B. McDougal, and former Gov. Jim Guy Tucker were among those found guilty of fraud or conspiracy charges related to the deal, though the Clintons were never charged. In August 1996, McDougal was sentenced to two years in prison.
She was subpoenaed to testify before the Whitewater grand jury the next month and again in 1998, but she refused both times. In 1996, she was incarcerated for 18 months for civil contempt before she began serving her 24-month sentence for her felony convictions.
In her fight to gain access to the grand jury material, McDougal argued she had a common law right to the court records and that the court has supervisory power over its own records and files. But the 8th Circuit didn’t accept her argument.
Although there is a right to access court records, “there is no common law right of access to grand jury materials,” Circuit Judge Diana E. Murphy, of Minneapolis, wrote for the unanimous panel. The court noted Federal Rule of Criminal Procedure 6(e) establishes a “general rule of confidentiality” for grand jury matters. McDougal didn’t argue that her request falls under one of the recognized exceptions to grand jury secrecy, the court said.
Disclosure is authorized if grand jury documents are needed for a judicial proceeding, if a defendant can show that some act before the grand jury is grounds to dismiss an indictment or if the government requests it.
Even if McDougal had established one of these exceptions permitted disclosure in her case, she still had to show a “particularized need for grand jury material,” which she didn’t do, the court said.
McDougal didn’t mention her writing in plans in the U.S. District Court in Jonesboro, Ark., but simply argued that there was no longer any need for the record to be sealed.
“Although the interest in grand jury secrecy may be reduced after an investigation is completed, there is no provision in Rule 6(e) specifically authorizing disclosure at the conclusion of the proceedings,” Murphy wrote, citing Douglas Oil Co. of Cal. v. Petrol Stops Northwest, a 1979 U.S. Supreme Court decision.
McDougal also didn’t ask the lower court judge to review the sealed record to determine whether any materials were sealed in error, the 8th Circuit said. Senior Circuit Judge Pasco M. Bowman, of Kansas City, served as the trial judge after all of the district judges in Arkansas recused themselves.
McDougal was represented by Brian G. Brooks, a solo practitioner in Greenbrier, Ark., and Bobby McDaniel, of McDaniel & Wells in Jonesboro, Ark. Brooks referred questions to McDaniel, who was out of town and did not return phone calls seeking comment.
A U.S. Department of Justice spokeswoman also did not comment.
Limbaugh, a judge on the U.S. District Court in St. Louis, and Circuit Judge Lavenski R. Smith, of Little Rock, concurred with Murphy’s opinion.
The case is U.S. v. McDougal, 08-2524.
