Does Gag Order in Ex-Massey Energy CEO's Criminal Case Go Too Far?

By Mark Wilson, Esq. on December 05, 2014 | Last updated on March 21, 2019

It's extremely hard these days to get indictments against corporate officers for corporate wrongdoing, but the feds managed it in the case of Donald Blankenship, the former chief executive of Massey Energy, one of the country's largest coal mining companies.

Blankenship was indicted on federal conspiracy and false statement charges for allegedly covering up mine safety violations that led to an explosion, killing 29 miners at the Upper Big Branch coal mine in West Virginia four years ago. Now, though, a federal court has imposed a gag order on the whole thing.

A Broad Order

Judge Irene C. Berger issued an order November 14 preventing anyone associated with the case, or any alleged victims, or even relatives of actual or alleged victims, from making any statements or talking to the media. The order also required all documents in the case to be filed "directly with the Clerk"; that is, not through PACER and not publicly. Berger's two-page order said it was "necessary to take 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."

A smorgasbord of media outlets, including NPR, The Associated Press, and The Wall Street Journal filed a motion earlier this week to vacate the order, claiming it's overbroad and lacking in any facts or law to support such a large scope, especially in a case as high-profile as Blankenship's.

The news outlets' motion suggests that if any jury pool tainting happened, it's already been done: "While the Upper Big Branch tragedy occurred over four years ago, over the course of time it has received much public attention and scrutiny, including no less than four governmental investigations (including a Congressional inquiry). Blankenship himself has financed the production and distribution of a movie concerning these events."

Where Would You Find an Impartial Juror?

Alison Frankel, writing in a Reuters op-ed, suggests that the Fourth Circuit is no friend of prior restraint, but the case she cites for that proposition -- Doe v. Public Citizen -- isn't quite on target. The court in Public Citizen redacted "virtually all of the facts, expert testimony, and evidence supporting its decision" in its memorandum opinion. There's at least a colorable claim in the Blankenship case that finding a disinterested jury pool before trial is a much more limited claim, and more important to the administration of justice, than redaction once the case is over. The court can still vacate the order after a jury is selected.

But then there's the nagging fact that the explosion happened four years ago. In the intervening time, there were massive federal investigations and a highly publicized $209 million civil settlement in 2011. Given the importance of Massey Energy to West Virginia, and the high profile nature of the explosion and subsequent investigations, you'd be hard pressed to find anyone that doesn't already know about the case.

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