“The Associated Press, Cable News Network, Inc., The New York Times Company, POLITICO LLC, and WP Co., LLC, d/b/a the Washington Post (collectively, the ‘Media Coalition’) request an order unsealing ‘warrants, applications, supporting affidavits, and returns relating to all search, seizure or Stored Communications Act warrants’ (‘Warrant Materials’) filed in this Court relevant to the prosecution of Michael D. Cohen, the former personal attorney for President Donald Trump. See Media Coalition’s Mot. for Public Access to Certain Sealed Warrant Materials (‘Media Coalition’s Mot.’) at 1, ECF No. 1; Mem. Supp. Media Coalition’s Mot. (‘Media Coalition’s Mem.’) at 1, ECF No. 1-1. The government ‘does not oppose the [Media Coalition’s] request for unsealing of the warrants, subject to those redactions necessary to protect ongoing law enforcement matters and respect privacy concerns.’ Gov’t’s Resp. to Media Coalition’s Mot. (‘Gov’t’s Resp.’) at 2, ECF No. 7. For his part, Cohen has interposed no objection. For the reasons set out below, the Media Coalition’s Motion is granted.” In re Access to Certain Sealed Warrant Materials, 2019 U.S. Dist. LEXIS 85285 (D.D.C. May 21, 2019):
Upon consideration of the government’s in camera submission, release of the Warrant Materials with the government’s proposed redactions is justified under the common law right of access to judicial records. Indeed, a “common law presumption of access” attaches to “SCA orders and related materials.” Matter of Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 300 F. Supp. 3d 61, 92 (D.D.C. 2018) (citing United States v. Appelbaum (In re United States), 707 F.3d 283, 291 (4th Cir. 2013)). The government may rebut this presumption, however, “by showing ‘competing interests’ that compel a ‘conclu[sion] that justice [ ] requires’ maintaining a seal.” Id. (quoting Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017)).
Here, the government’s proposed redactions are consistent with those authorized by the S.D.N.Y., protective of the competing interests in the government’s ongoing investigation and third-party privacy interests. These competing interests are strong enough to counterbalance the public’s common law right of access to the Warrant Materials. See United States v. Hubbard, 650 F.2d 293, 315-16 & n.84, 208 U.S. App. D.C. 399 (D.C. Cir. 1980) (explaining that “the tradition of access is not without its time-honored exceptions,” and noting, for example, that “affidavits submitted in support of search warrants are sometimes sealed to protect the secrecy of an ongoing criminal investigation”); see also Metlife, Inc., 865 F.3d at 665 (stating that the presumption of public access “may be outweighed in certain cases by competing interests,” such as “privacy interests asserted”). Accordingly, the government shall file, by May 22, 2019, the redacted versions of the Warrant Materials on the docket of this Miscellaneous action.
Second, the Media Coalition requests a “sunlight date” three months from the date of this Memorandum and Order, at which time sealed portions of the Warrant Materials will become public, “absent a showing by the Government or another interested party that continued sealing is justified.” Media Coalition’s Mem. at 19. The government “has no objection” to submitting a status report on the need for continued sealing on “whatever” date “the Court deems appropriate.” Gov’t’s Resp. at 4. As a result, the government shall submit, by August 22, 2019, a status report explaining any need for continued sealing of any portion of the Warrant Materials.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)