Rules 16 and 26.2 of the Federal Rules of Criminal Procedure, the Jencks Act (18 U.S.C. §3500), Brady v. Maryland, and Giglio v. United States impose upon all federal prosecutors an obligation to disclose exculpatory and impeachment information.
DOJ Guides to Prosecutors
There are two primary sources that guide the 93 Assistant U.S. Attorneys in the U.S., Puerto Rico, Guam, Virgin Islands, and Mariana Islands about how these obligations must be fulfilled: Section 9-5.001 of the United States Attorneys Manual (USAM) and the Federal Criminal Discovery Blue Book (“Blue Book”).
US Attorney’s Blue Book
The USAM is a public record; the Blue Book is not.
In fact, the Blue Book is such a closely guarded secret that the Justice Department (DOJ) has strenuously fought for the past several years in court to prevent criminal defense attorneys from accessing it.
NACDL Files FOIA, Law Suit for Disclosure of Blue Book
In December 2012, the National Association of Criminal Defense Lawyers (NACDL) filed a Freedom of Information Act (FOIA) request seeking disclosure of the Blue Book with the DOJ. That request was denied by the agency in February 2013. The NACDL appealed the denial, and that appeal was rejected by the DOJ in June 2013.
Having exhausted administrative remedies, the NACDL in February 2014, filed a formal complaint in the United States District Court for the District of Columbia against the Executive Office of the U.S. Justice Department.
Court Orders Blue Book Privileged by Attorney Work Product
This complaint triggered a flurry of legal actions and decisions that culminated on July 19, 2016 when the D.C. Court of Appeals issued a ruling that upheld a lower court order denying the NACDL’s complaint on the legal premise that the Blue Book is privileged under the “attorney work product” rule.
Just what is the Blue Book?
In October 2008, federal prosecutors engaged in the prosecution of former Alaskan U.S. Senator Ted Stevens methodically and deliberately committed some of the worst acts of prosecutorial misconduct in U.S. Justice Department history. The massive misconduct had serious ethical and legal implications for all those involved in that political witch hunt prosecution.
What’s Inside the Blue Book
The Blue Book was the DOJ’s response to the legal fiasco of the Sen. Stevens prosecution. It is a manual that guides DOJ prosecutors “in the practice of discovery in criminal prosecutions.” As the D.C. Court of Appeals put it:
“[The Blue Book] contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.”
When it created the Blue Book, the DOJ never intended for it to be seen either by criminal defense attorneys or the general public. It is a “top secret” kind of work manual designed instruct prosecutors not only how to fulfill their discovery obligations but, we suspect, to teach them how to “legally” avoid honoring those obligations as well.
In the FOIA proceedings, Susan Gerson, the Assistant Director of the FOIA/Privacy Act Staff of the Executive Office for U.S. Attorneys, outlined the following purposes of the Blue Book to justify its non-disclosure as they were outlined in the Court of Appeals decision:
- The Blue Book is exempt from disclosure pursuant to FOIA Exemptions 5 and 7(E);
- The Blue Book “was signed to provide advice regarding the law and practice and to serve as a litigation manual to be used by all DOJ prosecutors and paralegals” in their cases;
- The Blue Book was “created in anticipation of reasonably foreseeable litigation,” namely, federal criminal prosecutions;
- The Blue Book “describes the nature and scope of [federal prosecutors’] discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules of Criminal Procedure;”
- The Blue Book consists of “nine chapters, written by DOJ prosecutors with expertise in a wide range of discovery-related topics,” addressing disclosure duties under the Jencks Act, Brady, Rule 16 FRCP, items protected from disclosure, the use of protective orders, and the use of ex parte and in camera submissions in discovery;
- The Blue Book is not a “neutral analysis of the law” but rather “contains confidential legal analysis and strategies to support the Government’s investigations and prosecutions;”
- As opposed to the USAM, which sets forth statements of DOJ policy, the Blue Book is an “internal manual containing litigation strategies” … that offers “practical ‘how-to’ advice” to federal prosecutors about “how to handle different scenarios and problems;”
- The Blue Book discusses “the types of challenges [prosecutors] may encounter in the course of prosecutions and potential responses and approaches,” which includes a contemplation of “facts that may arise in judicial proceedings” and evaluates “how a court would likely consider those facts;”
- Disclosure of the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases;”
- Disclosure of the Blue Book would provide anyone, including opposing counsel, with “unprecedented insight into the thought processes of federal prosecutors;”
- Disclosure of the Blue Book would thus “undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the [DOJ’s] handling of federal prosecution;” and
- Finally, disclosure of the Blue Book would “severely hamper the adversarial process, as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions.
Attorney/Work Product Privilege
For these reasons, and others, the DOJ argued in the district court and before the court of appeals that the Blue Book should enjoy non-disclosure status under the well-established attorney work product privilege. Agreeing with the DOJ, the D.C. Circuit said:
“Courts have long recognized that materials prepared by one’s attorney in anticipation of litigation are generally privileged from discovery by one’s adversary. The attorney work product privilege applies in both civil and criminal cases. The privilege aims primarily to protect ‘the integrity of the adversary trial process itself.’ It does so by ‘providing a working attorney with a ‘’zone of privacy’’ within which to think, plan, weigh facts and evidence, and candidly evaluate a client’s case, and prepare legal theories.’ Without the privilege, ‘much of what is now put down in writing would remain unwritten’ because ‘an attorney’s thoughts, heretofore inviolate, would not be his own.’ Protecting attorney work product from disclosure prevents attorneys from litigating ‘on wits borrowed from the adversary.’”
We respectfully disagree with the court of appeals.
Federal Prosecutors Engaged in Misconduct
Even after the Ted Stevens scandal, scores of DOJ prosecutors have engaged in misconduct.
According to a March 2014 reports by Project on Government Oversight (POGO), “an internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.”
POGO noted that “as a general practice, the Justice Department does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. The result: The Department, its lawyers, and the internal watchdog office itself are insulated from meaningful scrutiny and accountability.”
The D.C. Circuit’s decision will perpetuate the shroud of secrecy the DOJ has clothed itself with.
With the court of appeals’ blessing, the DOJ does not want to disclose the Blue Book not to protect prosecutors’ work product but to keep criminal defense attorneys from understanding when and how its prosecutors fail to fulfill their discovery-related obligations.
Instances of Federal Prosecutorial Misconduct
What types of misconduct did the DOJ’s own Office of Professional Responsibility (OPR) find its post-Ted Stevens investigation? They are listed below:
- 48 allegations that federal attorneys misled courts, including 20 instances in which OPR determined the violations were intentional;
- 29 allegations that federal prosecutors failed to provide exculpatory information to defendants, including 1 instance OPR concluded was intentional;
- 13 allegations that Justice Department personnel violated constitutional or civil rights;
- 4 allegations of abuse of investigative or prosecutorial authority or general prosecutorial misconduct, including 3 instances in which OPR determined that the violations were intentional;
- 3 allegations that prosecutors abused the grand jury or indictment process; and
- 1 allegation of “overzealous prosecution.”
Does Blue Book Aid Prosecutors in Manipulating Discovery?
The OPR’s investigation revealed that prosecutorial misconduct is systemic in the DOJ, and that the wrongdoing spanned two political administrations. This leads us to believe that the Blue Book exists not to offer a professional and ethical guide for DOJ prosecutors in discovery-related issues but as a manual to teach them how to manipulate the process and not get caught, as they did in the Ted Stevens case.