Reverse the outrageous gag order in Don Blankenship criminal case

December 2, 2014

Donald Blankenship, the former chairman and CEO of Massey Energy, has spent the past five years agitating for public attention in order to clear his name.

In 2009, an explosion at Massey’s Upper Big Branch mine in West Virginia killed 29 workers in the worst mining disaster in recent U.S. history. Blankenship, of course, was already well known in West Virginia before the tragedy. He headed the state’s biggest coal company and was so lavish a political contributor that in 2009 the U.S. Supreme Court had to step in to disqualify a state Supreme Court justice to whom Blankenship had contributed $3 million from hearing Massey’s appeal of a $50 million jury verdict against the company. But after state and federal investigators began to look into Massey’s safety violations at the Upper Big Branch mine, Blankenship devoted himself to blaming others for the disaster.

He made frequent television appearances, started his own blog and sponsored a 49-minute documentary that claims federal mining regulations led to the Upper Big Branch disaster. Based on the letters he exchanged publicly with the U.S. senator from West Virginia, the Democratic former governor Joe Manchin, Blankenship was well aware that the Justice Department intended to bring a case against those responsible for the explosion. He surely knew that he was under scrutiny. Yet he nevertheless seemed to be confident that public debate would show the tragedy was not his fault.

Federal prosecutors indicted Blankenship last month for conspiring to violate safety regulations in order to boost Massey’s profits and for deceiving regulators and investors about the company’s safety compliance. On the day of the indictment, West Virginia U.S. Attorney Booth Goodwin issued a press release summarizing the charges. A lawyer for Blankenship told Ken Ward, a longtime reporter at the Gazette newspaper in Charleston, West Virginia, that his client “is entirely innocent of these charges. He will fight them and he will be acquitted.” Family members of several victims of the explosion told the Gazette they were glad Blankenship was finally being called to account.

Those were all completely appropriate public statements on a case of intense interest not only in West Virginia but all over the country. A CEO who wields outsize political influence facing federal charges for boardroom decisions that allegedly led to 29 deaths? I can’t think of a white-collar prosecution of greater consequence than this one.

Yet under a gag-and-seal order issued the day after Blankenship’s indictment by U.S. District Judge Irene Berger of Beckley, West Virginia, no one with an actual connection to the case – not Blankenship, his lawyers, prosecutors, potential witnesses, investigators, victims or their families – is permitted to speak publicly about the case.

Nor are documents from the case available through the federal courts’ electronic records system. If you try to view them, you receive a message, “This image is not available for viewing by non-court users.” Even the indictment, which the Justice Department emailed to journalists and posted publicly at the West Virginia U.S. attorney’s website, can’t be viewed or downloaded from the court. The U.S. attorney’s office also took it down after the gag-and-seal order was issued. My link comes from the Justice Department’s old email announcing charges against Blankenship. And the only reason I’m able to link to the gag order is that the Gazette obtained a copy from the court clerk in Beckley – the only document the clerk’s office said it was authorized to provide – and posted it online.

Neither side asked for the gag order. Judge Berger issued it on her own initiative. She said in the order that she was taking extreme precautions “to insure that the government and the defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during trial.” (The brief description of the gag order on the public electronic docket doesn’t include this explanation and – just to remind you – the order itself is not available through the court’s public records website. We only know the judge’s reasoning because the clerk emailed the gag order to the Gazette.)

On Monday, a coalition of media organizations, including The Wall Street Journal, The Charleston Gazette and National Public Radio, moved to intervene in the Blankenship case to ask Judge Berger to vacate the gag and seal order. As of Tuesday afternoon, even a description of their motion wasn’t yet listed on the Blankenship docket. Once again, I’m relying on a Gazette link to the document.

The news companies, represented by DiTrapano Barrett DiPiero McGinley & Simmons, made the arguments you would expect: Criminal proceedings are presumptively open to the public; gag-and-seal orders are supposed to be tailored narrowly and issued only when there’s a real and immediate threat to fairness, not at the beginning of a case, without notice to anyone; Judge Berger’s order impinges on the First Amendment rights of journalists to report the news and of victims to speak to the media; and pretrial publicity in a newsworthy case has never been deemed a good enough reason to black out coverage.

There is copious precedent in the 4th U.S. Circuit Court of Appeals to back the news organizations’ arguments against gag-and-seal orders, including the decision just last summer in Company Doe v. Public Citizen. In that case, the appeals court unsealed the records of litigation between the Consumer Product Safety Commission and a company that had been permitted to challenge the CPSC anonymously to protect its reputation. The 4th Circuit’s truly stirring opinion, written by Judge Henry Floyd, said that public access to court records “promotes not only the public’s interest in monitoring the functioning of the courts but also the integrity of the judiciary.”

That’s the real problem with Judge Berger’s gag and seal order: It diminishes faith in judicial integrity. By throwing the Blankenship case into darkness, she’s not assuring its fairness. She’s assuring public ignorance, which, in turn, leads to cynicism. Potential jurors might well be less influenced by the indictment’s allegations or news accounts of victims’ comments than by suspicion that Blankenship is using his wealth and influence to suppress disclosures. Murkiness is more insidious than transparency.

Blankenship has been reviled since the Upper Big Branch explosion for putting profits before the safety of Massey workers. Whatever else you can say about the man, he has shown – before his indictment but not before he had reason to suspect it was coming – that he’s not afraid to confront his accusers publicly.

It’s not fair of Judge Berger to deny him that opportunity. Unseal the case records.

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