Application of Los Angeles Times Communications LLC to Unseal Court Records ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE APPLICATION OF LOS ANGELES Miscellaneous Action No. 21-16 (BAH)
TIMES COMMUNICATIONS LLC TO
UNSEAL COURT RECORDS Chief Judge Beryl A. Howell
MEMORANDUM OPINION AND ORDER
In May 2021, this Court denied Los Angeles Times Communications LLC’s (“petitioner”
or “L.A. Times”) application to unseal court records pertaining to what was then a hypothetical
search warrant—the existence of which the U.S. Department of Justice (“DOJ”) had declined
publicly to confirm—that allegedly had been executed on then-U.S. Senator Richard Burr’s
cellphone a year earlier in connection with an insider-trading investigation. See In re L.A. Times
Commc’ns LLC, No. 21-mc-16 (BAH), 2021 WL 2143551, at *1 (D.D.C. May 26, 2021). The
D.C. Circuit reversed the denial of petitioner’s application and remanded with instructions to
reconsider whether, given new public disclosures by another government agency about the
investigation after this Court’s decision had issued and “Senator Burr’s public acknowledgment
of the Justice Department’s investigation,” unsealing of the still-hypothetical search warrant
materials would be appropriate under the common law right of access to judicial records. See In
re L.A. Times Commc’ns LLC, 28 F.4th 292, 295 (D.C. Cir. 2022).
On remand, in response to this Court’s order, see Min. Order (May 19, 2022), DOJ
publicly acknowledged, for the first time in over a year of litigation, that the search warrant
sought by petitioner in fact existed, Notice in Resp. to Ct.’s May 19, 2022 Min. Order, ECF No.
24, and filed on the public docket a highly redacted version of the search warrant as well as
associated submissions, see Gov’t’s Mot. & Mem. Supp. Continued Sealing of Certain Parts of
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Search Warrant Materials (“Gov’t’s Mot.”), ECF No. 25; Sealed Document filed by Gov’t in
Resp. to Order of the Ct., Revised Redacted Search Warrant Materials, ECF No. 34-1.
Following additional back-and-forth with DOJ, now pending before the Court is DOJ’s motion to
preserve under seal redacted portions of the search warrant and related court records in this
closed investigation that resulted in no prosecution of former Senator Burr, see generally Gov’t’s
Mot., while petitioner wants all redacted information disclosed.
For the reasons explained below, the government’s motion is granted in part and denied
in part.
I. BACKGROUND
On May 13, 2020, the government presented, and this Court granted under seal, a warrant
to search the cellphone of Senator Burr as part of a now closed investigation into allegations of
insider training and securities fraud, in violation of 15 U.S.C. § 78j(b) and 18 U.S.C. § 1348,
respectively. See Gov’t’s Mot., Ex. A, Redacted Search Warrant Materials. The government
“sought to determine whether Senator Burr sold or purchased stock based on non-public
information relating to the COVID-19 pandemic that he received by virtue of his position as a
United States Senator, in violation of the Stop Trading on Congressional Knowledge Act”
(“STOCK Act”), codified at 15 U.S.C. §§ 78j(b), 78u-1(g). Gov’t’s Mot. at 2.
Later the same day that the warrant issued under seal, the L.A. Times published a story
reporting “that Senator Burr had been served with a search warrant and that his cellphone had
been seized in connection with an alleged investigation by the Justice Department into his stock
trades.” In re L.A. Times Commc’ns LLC, 28 F.4th at 295; see also Del Quentin Wilber &
Jennifer Haberkorn, FBI Serves Warrant on Senator in Investigation of Stock Sales Linked to
Coronavirus, L.A. TIMES (May 13, 2020), http://lat.ms/2N0cTNh. The D.C. Circuit described
the factual context for the warrant as follows, citing a news report:
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On February 13, 2020, Senator Richard Burr and his wife sold stocks valued
between $628,000 and $1.72 million, as disclosed in mandatory Senate filings.
Soon after, the stock market fell sharply as news about the COVID-19 pandemic
spread. Because, shortly before those sales, Senator Burr had received briefings on
the pandemic in his capacity as a Senator and member of the Senate Committee on
Health, Education, Labor and Pensions, the February 13 trades quickly garnered
media scrutiny and public attention. See, e.g., Eric Lipton & Nicholas
Fandos, Senator Richard Burr Sold a Fortune in Stocks as G.O.P. Played Down
Coronavirus Threat, N.Y. TIMES (Mar. 19, 2020),
https://www.nytimes.com/2020/03/19/us/politics/richard-burr-stocks-sold-
coronavirus.html.
In re L.A. Times Commc’ns LLC, 28 F.4th at 295. The D.C. Circuit noted that, in January 2021,
Senator Burr issued a statement announcing the conclusion of DOJ’s investigation into his stock
transactions, again citing a report by a news outlet. Id. (citing Vanessa Romo, DOJ Drops
Insider Trading Investigation Into Sen. Richard Burr, NPR (Jan. 19, 2021),
https://www.npr.org/202l/01/19/958622574/doj-drops-insider-trading-investigation-into-sen-
richard-burr (“NPR Report)). According to that cited NPR Report, Senator Burr’s statement
consisted of the following: “Tonight, the Department of Justice informed me that it has
concluded its review of my personal financial transactions conducted early last year. The case is
now closed.” NPR Report.
Nine months after the warrant issued under seal, petitioner asked this Court, on February
24, 2021, to unseal any court records pertaining to the search warrant executed on Senator Burr’s
cellphone, asserting a right of access to any such records under both the common law and First
Amendment. Pet’r’s Mot. to Unseal Court Records, ECF No. 1. 1 Specifically, petitioner sought
disclosure of “all materials associated with the search warrant, including the search warrant
application, supporting affidavits, the search warrant itself, the return, the docket sheet, and any
1
This petition was filed pursuant to this Court’s Local Criminal Rule 57.6, authorizing “[a]ny news
organization” seeking “relief relating to a criminal investigative or grand jury matter, [to] file an application for such
relief with the Court.” D.D.C. LCRR 57.6. When such application “pertains to a criminal investigative or grand jury
matter to which no judge has been assigned,” the matter is “referred by the Clerk to the Chief Judge for
determination,” id., and, in accordance with this rule, this matter was reassigned to the undersigned Chief Judge on
May 11, 2021, see Notice of Reassignment, ECF No. 15.
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other judicial records connected to the search warrant served on Senator Burr” (collectively,
“search warrant materials”). In re L.A. Times Commc’ns LLC, 2021 WL 2143551, at *1 (internal
citations omitted). Petitioner also subsequently moved to unseal the government’s ex parte and
sealed opposition to its motion for disclosure. Pet’r’s Mot. to Unseal Sealed Mot. for Leave to
File Doc. Under Seal, ECF No. 11.
In the ensuing litigation before this Court and the D.C. Circuit—until remand—DOJ
never publicly recognized the existence of either the search warrant materials or any DOJ
investigation into Senator Burr. See Gov’t’s Mot. at 3 (explaining that when L.A. Times
commenced litigation for public disclosure of search warrant materials, the government “had not
publicly acknowledged that it had conducted an investigation regarding Senator Burr, and
certainly had not confirmed the existence of the” search warrant materials); In re L.A. Times
Commc’ns LLC, 2021 WL 2143551, at * 1 (“The United States Department of Justice has never
acknowledged the existence of an investigation into Senator Burr.”). That posture thus required
this Court to treat the existence of the search warrant materials as little more than speculation by
a media organization. This posture necessarily hampered public and detailed consideration of
whether the hypothetical search warrant petitioner posited should be unsealed and, if so, to what
extent. Nonetheless, this Court “assum[ed] the existence of the requested search warrant
materials” to resolve petitioner’s claim. Id. at *5.
On May 26, 2021, petitioner’s motions to unseal the search warrant materials and related
court records were denied based on the conclusion that, “[a]ssuming . . . the requested materials
exist, and that the qualified public right of access attaches, no disclosure of search warrant
materials would be appropriate in a closed, non-public investigation that has not resulted in
criminal charges, and where individual privacy and governmental interests may be implicated.”
Id. at *3.
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On appeal, DOJ continued to decline to acknowledge the existence of the search warrant
materials, requiring the Circuit likewise to review petitioner’s request for unsealing as one for
“hypothesized search warrant materials.” In re L.A. Times Commc’ns LLC, 28 F.4th at 297. In
the intervening months between this Court’s denial, in May 2021, of petitioner’s unsealing
requests, and appellate review, “the Securities and Exchange Commission (‘SEC’) filed an
enforcement action in the U.S. District Court for the Southern District of New York for a
subpoena issued to Senator Burr’s brother-in-law, Gerald Fauth,” disclosing in public filings
“that [the SEC] was investigating stock trades by Senator Burr and Mr. Fauth, and that its
investigation paralleled an investigation by the Justice Department.” Id. at 296. On March 18,
2022, given “the public disclosures in [that] SEC investigation, the Senator’s public
acknowledgment of the Justice Department investigation, and this court’s precedent governing
the application of the Hubbard test,” id. at 298, the Circuit remanded this case with instructions
that this Court “reconsider its common law analysis.” Id. at 295. The Circuit also cited “[a]
separate declaration by Fauth’s counsel [that] recounted a conversation in which Justice
Department prosecutors stated that the criminal investigation of Fauth was closed. Decl. of F.
Joseph Warin (counsel for Gerald Fauth), SEC v. Fauth, No. 1:21-mc-00787, at 3–4 (S.D.N.Y.
Oct. 27, 2021).” Id. at 296.
Upon issuance of the Circuit’s mandate on May 10, 2022, see Mandate of U.S. Court of
Appeals, ECF No. 20, the parties submitted a joint status report proposing a schedule for remand
proceedings in this matter, which implied—for the first time in over a year of litigation—that
DOJ now publicly acknowledged the existence of both the search warrant materials and the
Justice Department’s investigation into Senator Burr. See, e.g., May 18, 2022 Joint Status
Report at 3, ECF No. 23 (noting “Petitioner’s position that the Government should be required to
submit to the Court . . . its proposed redactions to the Materials”). DOJ was directed to confirm
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whether this was in fact an acknowledgement of the existence of the search warrant materials for
purposes of remand, thereby “put[ting] this matter in a different posture.” Min. Order (May 19,
2022). In response, on May 24, 2022, DOJ notified the Court that it “now acknowledges the
existence of the Materials, for reasons that include the public recognition of the Government’s
investigation by other individuals and entities.” Gov’t’s Resp. to Ct.’s Min. Order (“Gov’t’s
May 24, 2022 Resp.”), ECF No. 24. A scheduling order to govern remand proceedings was
subsequently entered directing DOJ to file, “on the public docket,” a public version of the search
warrant materials concerning Senator Burr that were now acknowledged to exist, “along with
any brief addressing why” any portions of those materials should remain under seal. Min. Order
(May 27, 2022).
DOJ then submitted, on the public docket, proposed redacted copies of the search warrant
materials sought by petitioner—including the warrant application, search warrant, supporting
affidavit, and docket sheet, Gov’t’s Mot., Ex. A, Redacted Search Warrant Materials—and later,
at the Court’s direction, see Min. Order (July 30, 2022), a motion and accompanying
memorandum supporting continued sealing of the redacted portions of the search warrant
materials, Gov’t’s Supp. Mem. Pursuant to Court’s Min. Order (“Gov’t’s Supp. Mem.”) at 2,
ECF No. 29. On August 12, 2022, the Court directed DOJ “to specify in detail” why redacted
portions of the search warrant materials required continued sealing in light of the SEC
disclosures, the D.C. Circuit’s remand instructions, and Circuit law permitting disclosure of
information “coincidentally before the grand jury” that does not “elucidate” the grand jury’s
“inner workings.” Min. Order (Aug. 12, 2022) (citing Senate of Puerto Rico v. U.S. Dep’t of
Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)).
DOJ responded by reducing the extent of its proposed redactions of the search warrant
materials, see Gov’t’s Resp. to Order of the Ct., ECF No. 31 (explanation of redactions);
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Proposed Redactions, ECF No. 32, but those revised redactions continued to raise questions
about compliance with the Circuit’s mandate. Consequently, the Court held an ex parte and
sealed proceeding with the government on August 19, 2022, in which it conducted a line-by-line
review of DOJ’s proposed redactions to elicit an explanation as to how each proposal either met
the Circuit’s mandate or fell short. The result of that proceeding is the government’s latest
response to the August 12 Order, see Gov’t’s Add’l Supplement in Resp. to Order of the Ct.,
ECF No. 33, with renewed, but substantially fewer, redactions than previously submitted,
Gov’t’s Revised Redacted Search Warrant Materials, ECF No. 34-1. Petitioner opposes DOJ’s
request for continued sealing of portions of the search warrant materials. Pet’r’s Opp’n to
Continued Sealing (“Pet’r’s Opp’n”) at 18, ECF No. 26. 2 DOJ’s motion for continued partial
sealing is now ripe for review.
II. LEGAL STANDARD
“The public’s right of access to judicial records derives from two independent sources:
the common law and the First Amendment.” In the Matter of the Application of WP Co. LLC
(“Application of WP”), 201 F. Supp. 3d 109, 117 (D.D.C. 2016) (citing In re Fort Totten
Metrorail Cases, 960 F. Supp. 2d 2, 5 (D.D.C. 2013)). As in the Court’s prior decision, each of
these potential avenues for unsealing of the search warrant materials are addressed in turn.
A. Common Law Right of Access
While “there is a ‘strong presumption in favor of public access to judicial proceedings,’
including judicial records,” Leopold v. United States, 964 F.3d 1121, 1127 (D.C. Cir. 2020)
(Garland, J.) (quoting United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980)), “not all
2
Petitioner also moves the Court to take judicial notice of public filings in SEC v. Fauth, 21-mc-178
(S.D.N.Y.), an enforcement action commenced by the SEC in the Southern District of New York against Gerald
Fauth, Senator Burr’s brother-in-law, in which action the SEC disclosed that Senator Burr had been subject to a
parallel investigation by DOJ regarding his stock trades. Pet’r’s Req. for Judicial Notice, ECF No. 27. The
government does not oppose this request, see generally Gov’t’s Reply to Pet’r’s Opp’n (“Gov’t’s Reply”), ECF No.
28, and petitioner’s motion for judicial notice is accordingly granted.
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documents filed with courts are judicial records” subject to this presumption, id. at 1128 (quoting
SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013)); see also Am. Int’l Grp., 712 F.3d at 4
(finding consultant reports were not judicial records because district court “made no decisions
about them or . . . otherwise relied on them”); United States v. El-Sayegh, 131 F.3d 158, 163
(D.C. Cir. 1997) (finding plea agreement that played no role in any adjudicatory function was not
judicial record). Instead, “whether something is a judicial record depends on the role it plays in
the adjudicatory process.” Leopold, 964 F.3d at 1128 (internal citation omitted). Documents and
other materials filed in court “intended to influence the court” are judicial records. Id.Even where documents qualify as judicial records, the common law “right to inspect and
copy judicial records is not absolute,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
(1978), and “may be outweighed by competing interests,” Leopold, 964 F.3d at 1127. The
Supreme Court has instructed, “the decision as to access is one best left to the sound discretion of
the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the
particular case.” Nixon, 435 U.S. at 599. In this Circuit, the competing interests that may
overcome the presumption favoring public access to judicial records have been “crafted [] into a
six-factor test” originating in Hubbard. Leopold, 964 F.3d at 1127. The Hubbard six-factor test
“has consistently served as our lodestar” by “ensur[ing] that we fully account for the various
public and private interests at stake,” MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d
661, 666 (D.C. Cir. 2017), in evaluating motions to seal or to unseal and provide public access to
judicial records, whether filed in criminal, criminal investigative, or civil matters.
The Hubbard test considers:
(1) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to disclosure,
and the identity of that person; (4) the strength of any property and privacy interests
asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the
purposes for which the documents were introduced during the judicial proceedings.
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Leopold, 964 F.3d at 1131 (ordering unsealing in criminal investigative matters) (quoting
Metlife, 865 F.3d at 665); see also id. at 1129–30 (explaining that unless “Congress has spoken
directly to the issue at hand,” the “common-law standard enshrined in the Hubbard balancing
test” governs “[]sealing decisions” (internal quotation marks omitted) (quoting Metlife, 865 F.3d
at 669)); Hubbard, 650 F.2d at 317–22.
B. First Amendment Right of Access
The First Amendment guarantees a qualified right of public access to criminal
proceedings and related court documents. Globe Newspaper Co. v. Superior Ct. for Norfolk Cty.,
457 U.S. 596, 603–04 (1982). Bolstered by the Sixth Amendment’s express right for a “public
trial” in “all criminal prosecutions,” U.S. CONST. amend. VI, public access to criminal trials
forms the core of this First Amendment constitutional right, see Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 575 (1980) (explaining that “it would be difficult to single out any aspect
of government of higher concern and importance to the people than the manner in which
criminal trials are conducted”). A similar right of access has been found to arise wherever
“(i) there is an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a
significant positive role in the functioning of the proceeding.” United States v. Brice, 649 F.3d
793, 795 (D.C. Cir. 2011) (quoting Richmond Newspapers, 448 U.S. at 573). Under this so-
called “‘experience and logic’ test,” Ctr. for Nat’l Sec. Stud. v. U.S. Dep’t of Justice, 331 F.3d
918, 934 (D.C. Cir. 2003), “both these questions must be answered affirmatively before a
constitutional requirement of access” attaches, In re Reporters Comm. for Freedom of the Press,
773 F.2d 1325, 1332 (D.C. Cir. 1985). Applying this standard, the Supreme Court has
recognized a First Amendment right of access to criminal trials, voir dire proceedings, and
preliminary hearings, while the D.C. Circuit has extended such a right to completed—but not
uncompleted—plea agreements. See Brice, 649 F.3d at 795–96 (citing authorities).
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Even where the First Amendment provides a right of public access, however, this right is
“‘qualified’ and is not absolute.” In re Application of N.Y. Times Co. for Access to Certain
Sealed Ct. Recs., 585 F. Supp. 2d 83, 90 (D.D.C. 2008) (“In re New York Times”); see also
Brice, 649 F.3d at 795. In particular, the presumption of public access may be overridden upon a
showing that “(1) closure serves a compelling interest; (2) there is a substantial probability that,
in the absence of closure, this compelling interest would be harmed; and (3) there are no
alternatives to closure that would adequately protect the compelling interest.” Brice, 649 F.3d at
796 (quoting Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991)).
III. DISCUSSION
This Court was directed to reconsider, on remand, “whether sealing is still justified in
view of the Hubbard factors or whether redaction would be an appropriate alternative.” In re
L.A. Times Commc’ns LLC, 28 F.4th at 297. Notwithstanding “that this matter is now in a
different posture”—given both DOJ’s recent acknowledgement on remand of the existence of the
search warrant materials for the first time in the course of litigation before either this Court or the
D.C. Circuit, see Gov’t’s May 24, 2022 Resp. at 1, and the public disclosures made by the SEC
in other pending litigation that arose after this Court’s initial decision—consistent with the
Circuit’s mandate, the Court concludes that limited unsealing of the search warrant materials,
albeit more limited than DOJ proposes, remains “an appropriate alternative” to full unsealing
here, In re L.A. Times Commc’ns LLC, 28 F.4th at 297.
In its latest filing, DOJ proposed two categories of redactions: (1) those aimed at
protecting third-party privacy interests, including, among other things, the “private financial
information” of third parties, Gov’t’s Mot. at 2; “information gained from the cooperation of
private third-party witnesses,” id.; and the descriptions of DOJ’s “law enforcement techniques
and processes in the course of the investigation,” id.; Gov’t’s Add’l Supplement in Resp. to
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Order of the Ct. at 1; and (2) those meant to preserve the due process interests of investigative
targets “against whom the probable cause allegations in the warrant were made” but were not
charged with any criminal offenses. Id. The continued sealing of the former category of
information (“Category 1”) is appropriate under the Hubbard factors and the First Amendment.
As to the latter category (“Category 2”), the due process concerns for targets of criminal
investigations are serious, particularly in a closed investigation resulting in no formal criminal
charges, and certainly persist here. Nevertheless, for reasons further explained below, both the
privacy and due process interests of the targets named in the search warrant materials fall by the
wayside in the context of this case where those targets publicly acknowledged DOJ’s
investigation into their conduct by reporting in public fora that the investigation into their own
conduct was closed. Such public disclosure, compounded by the fact that “the investigation
involved actions taken by a public official in his public capacity,” In re L.A. Times Commc’ns
LLC, 28 F.4th at 298, sufficiently diminishes any privacy or due process interests for the strong
presumption in favor of public access to prevail, requiring disclosure of Category 2 information.
A. Common Law Analysis
The first Hubbard factor—the need for public access to the materials at issue—weighs
against additional unsealing of Category 1 information, but not so for Category 2 information. 3
To start, in directing reconsideration of the need for public access to the search warrant
materials, the D.C. Circuit identified a “powerful public interest in learning of a sitting Senator’s
potential violation of insider-trading laws based on information acquired in his official capacity.”
L.A. Times Commc’ns LLC, 28 F.4th at 298. Releasing information about the identities of third
parties and details about law enforcement’s investigative techniques does not aid that “powerful
3
The search warrant materials at issue are indisputably judicial records, as Hubbard first requires courts to
consider. See In re L.A. Times Commc’ns LLC, 28 F.4th at 296–97; Pet’r’s Opp’n at 14–15; Gov’t’s Mot. at 6, 11
(acknowledging Hubbard’s first inquiry regarding a “judicial record” status then considering the Hubbard factors as
applied to judicial records in this case).
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public interest.” DOJ’s proposed limited unsealing of the search warrant materials provides
documentary confirmation and additional context regarding the criminal investigation into
Senator Burr for possible violations of the STOCK Act, including what steps were undertaken by
law enforcement to conduct an investigation, providing ample transparency in this particular
investigation. See Revised Redacted Search Warrant Materials.
To the extent petitioner seeks additional access to the search warrant materials “to gain
insight into the [Justice] Department’s internal decision-making processes” or “ultimate charging
decisions,” further unsealing of the search warrant materials would, in DOJ’s view, see Gov’t’s
Mot. at 11, prove unhelpful, and the Court agrees. The internal decision-making that led to the
decision not to pursue formal criminal charges occurred after issuance of the search warrant,
which plainly issued when the investigation was ongoing. The search warrant materials simply
do not reflect whatever countervailing information subsequently informed the prosecutorial
decision to close the investigation without charges. Instead, as the government points out, the
search warrant materials—particularly the affidavit in support of the warrant—amount to “only a
snapshot in time of the Department’s understanding of the conduct at issue in the investigation.”
Gov’t’s Mot. at 10. Indeed, the fact that the search warrant materials reflect merely a “snapshot
in time” was among the significant concerns expressed initially by this Court in denying the
disclosure in this closed investigation that resulted in no criminal charges due to the need to
avoid unfairly tarring the targets with charges of criminal wrongdoing based merely on probable
cause, without their having the opportunity presented by the procedural mechanism of a public
trial to dispute and vindicate their conduct. See In re L.A. Times Commc’ns LLC, 2021
WL 2143551, at *4. In any event, further disclosure of the search warrant materials would “not
inform the public whether the government’s understanding of the facts later changed” and how
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that changed understanding affected the investigation and eventual charging decisions. Gov’t’s
Reply at 3.
On the other hand, the “powerful public interest in learning of a sitting Senator’s
potential violation of insider-trading laws based on information acquired in his official capacity,”
In re L.A. Times Commc’ns. LLC, 28 F.4th at 298, cannot be gainsaid. As petitioner correctly
posits, additional unsealing would “shin[e] a light on the Government’s investigation of political
corruption,” Pet’r’s Opp’n at 1 (internal citations omitted), to understand “whether the
separation-of-powers concerns raised by a search targeting a member of a coordinate branch
were given appropriate weight,” id., and to provide the public an opportunity “to evaluate the
basis upon which the search was authorized in the first place,” id. at 3. See also id. at 4
(asserting additional unsealing is needed so “the public [can] understand how weak or strong the
Government’s original basis for investigating Senator Burr was, which in turn would inform the
public’s understanding of whether the government had the evidence but nevertheless pulled its
punches” (internal citations omitted)). Petitioner is right as those arguments pertain to Category
2 information, which the SEC filings, media reporting, and public statements have already
disclosed, even though this closed investigation resulted in no criminal charges.
In sum, as to the first Hubbard factor, the public interest weighs heavily to support
further unsealing of Category 2 information about targets subject to investigation for misuse of a
public office, see In re L.A. Times Commc’ns LLC, 28 F.4th at 298, certainly to the extent such
information already has been disclosed in other fora or otherwise confirmed, including, as here,
by the targets themselves in public statements that DOJ had closed an investigation into their
conduct, id. at 295–96 (citing public statements by former Senator Burr and Gerald Fauth’s
counsel).
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The second Hubbard factor requires examination of the extent of previous public access
to the search warrant materials. The Category 1 information, which remains redacted in the
search warrant materials, has not been previously public. DOJ’s proposed redactions of
Category 2 information are insufficiently reflective of the information already available in the
public domain through media coverage, Senator Burr and Fauth’s own public statements, and
disclosures in the SEC proceedings, including information that DOJ conducted an investigation
into Senator Burr and Gerald Fauth; that a warrant issued to search Senator Burr’s phone; and
that the investigation into both Burr and Fauth concluded without charges. See Gov’t’s Mot. at
12. This factor therefore calls for additional disclosure of Category 2 information.
The third, fourth, and fifth Hubbard factors—which as aptly put by petitioner “ask
variations o[f] the same question: to what extent harm to legitimate interests, including privacy
or law enforcement interests, would result from unsealing,” Pet’r’s Opp’n at 8—cut both ways:
favoring continued sealing of Category 1 but not Category 2 information.
Disclosure of warrant materials may implicate the privacy interests of third parties,
whether they are witnesses, informants, or other suspects. Application of WP, 201 F. Supp. 3d at
123; see also Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984). Governmental interests can
likewise be implicated by unsealing of closed investigation materials, as the government may
generally “withhold from disclosure the identity of persons who furnish information of violations
of law to officers charged with enforcement of that law.” Application of WP, 201 F. Supp. 3d at
127 (citing Smith v. Lanier, 726 F.3d 166, 167 (D.C. Cir. 2013)). Preservation of witness
anonymity “recognizes the obligation of citizens to communicate their knowledge of the
commission of crimes to law-enforcement officials and, by preserving their anonymity,
encourages them to perform that obligation.” Roviaro v. United States, 353 U.S. 53, 59 (1957);
see also United States v. Sells Eng’g, Inc., 463 U.S. 418, 424–25 (1983) (explaining policy
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reasons undergirding grand jury secrecy that “many prospective witnesses would be hesitant to
come forward voluntarily, knowing that those against whom they testify would be aware of that
testimony. Moreover, witnesses who appeared before the grand jury would be less likely to
testify fully and frankly, as they would be open to retribution as well as to inducements,”
(quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979))). Each of these
compelling interests is implicated here and ground DOJ’s “object[ion] to further disclosure of the
Materials,” at least in Category 1. Gov’t’s Mot. at 12.
As DOJ persuasively explains, additional unsealing of the search warrant materials that
would reveal “extensive details of interviews with private third-party witnesses whose role in the
investigation is not publicly known” may compromise not only those third-party witnesses’
reputations and livelihoods but also the government’s own “law enforcement interest in
maintaining its ability to secure cooperation from witnesses in the future.” Gov’t’s Mot. at 10.
Further disclosure may also compromise the confidentiality of the government’s investigative
techniques and “cause the subjects of other investigations to change their conduct to evade
detection and otherwise thwart future investigations of similar allegations.” Id.; see also Gov’t’s
Reply at 4 (noting continued sealing is necessary to prevent the “chilling effect that disclosure
would have on the scope and quality of evidence that government investigators are willing to
include in search warrant applications”). These privacy and law enforcement interests central to
the Category 1 redactions accordingly counsel against additional disclosure of such information,
which as noted has not been previously disclosed. The proposed redactions detail identifying
information about third parties and their contributions to the investigation and related law
enforcement techniques and processes, the release of which poses significant risk of triggering
the harms highlighted by DOJ.
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Category 2 information pertaining to Senator Burr and Fauth are a different story. DOJ
notes that “[b]ecause the [Justice] Department’s investigation concluded without an indictment,
Senator Burr holds acute individual interests against disclosure analogous to those in the grand
jury context,” including “the stigma that would affect [his] reputation; privacy interests regarding
the details of his financial transactions that are included in the warrant; and his inability to refute
the Department’s early—and ultimately unavailing—allegations because the investigation never
progressed to a courtroom.” Gov’t’s Mot. at 9. Petitioner counters that these “claimed privacy
and law enforcement interests are not compelling in light . . . of information that is already
public” about the Justice Department’s investigation into Senator Burr. Pet’r’s Opp’n at 17.
Full disclosure of the search warrant materials prepared at an earlier stage of the
government’s now-closed investigation into Senator Burr and other targets, “without providing a
proper forum for vindication,” straddle a fine line with the limits of the Due Process Clause of
the Fifth Amendment. Application of WP, 201 F. Supp. 3d at 123; id. at 122 (when “a criminal
investigation does not result in an indictment or other prosecution, a due process interest arises
from an individual being accused of a crime without being provided a forum in which to refute
the government’s accusations”); accord United States v. John Doe, Inc. I, 481 U.S. 102, 109 n.5
(1987) (describing that grand jury secrecy is meant to, inter alia, “protect [the] innocent accused
who is exonerated from disclosure of the fact that he has been under investigation, and from the
expense of standing trial where there was no probability of guilt” (citing United States v. Procter
& Gamble Co., 356 U.S. 677, 681, n.6 (1958))); McKeever v. Barr, 920 F.3d 842, 844 (D.C. Cir.
2019) (“[Grand jury] secrecy safeguards vital interests in . . . preserving the rights of a suspect
who might later be exonerated” (citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. at 219)).
As this Court has previously explained, once an investigation closes without charges, the subject
of the criminal investigation retains significant privacy interests tied to the public disclosure of
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investigation materials, such as avoiding “the unfairness of being stigmatized from
sensationalized and potentially out-of-context insinuations of wrongdoing,’ particularly where
individuals lack the opportunity ‘to clear their names at trial,” Application of WP, 201 F. Supp.
3d at 124 (internal quotations and citation omitted); accord Illinois v. Abbott & Assocs., Inc., 460
U.S. 557, 566 n.11 (1993) (“[G]rand jury secrecy has traditionally been invoked to justify the
limited procedural safeguards available to witnesses and persons under investigation.”); United
States v. Johnson, 319 U.S. 503, 513 (1943) (underscoring “the indispensable secrecy of grand
jury proceedings—as important for the protection of the innocent as for the pursuit of the
guilty”), as well as “‘a second, distinct privacy interest in the contents of the investigative files,’”
Application of WP, 201 F. Supp. 3d at 123 (quoting Citizens for Resp. & Ethics in Wash. v. U.S.
Dep’t of Justice, 746 F.3d 1082, 1091–92 (D.C. Cir. 2014)). The D.C. Circuit contemplated that
delicate balance, noting that Senator Burr’s position as an elected official and his decision to
acknowledge the existence of the government’s investigation may “attenuate[]” his privacy
interests implicated by public release of the search warrant materials. L.A. Times Commc’ns
LLC, 28 F.4th at 298; see also Pet’r’s Opp’n at 9.
Attenuation of privacy rights that public figures experience does not equate with
extinguishment of those rights. See L.A. Times Commc’ns LLC, 28 F.4th at 298. Unsealing all
information regarding targets of DOJ investigations, regardless of the targets’ statuses as public
figures, upsets the due process protections provided by the procedural guardrails that apply to
criminal matters. See, e.g., U.S. CONST. amend. V. The Hubbard balancing test is the “lodestar”
in this Circuit to fully account for public and private interests, Metlife, 865 F.3d at 666, but those
interests must yield to concerns that individuals suspected of criminal wrongdoing, but
uncharged for such actions, lack due process to challenge uncorroborated or premature
allegations levied by a force so powerful and influential as the U.S. Department of Justice. This
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concern that the government in its prosecutorial posture may serve as the last word—and
potentially, the worst word—on a person’s conduct is one of the underlying policy reasons for
Federal Rule of Criminal Procedure 6(e), which codifies the strict secrecy applicable to
proceedings of a grand jury tasked with making probable cause determinations for felony
criminal charges. See Leopold, 964 F.3d at 1130; John Doe, Inc. I, 481 U.S. at 109 n.5;
McKeever v. Barr, 920 F.3d at 844; In re Motions of Dow Jones & Co., 142 F.3d 496, 499, 503–
04 (D.C. Cir. 1998); FED. R. CRIM. P. 6(e). That protection was valued by the Framers, see In re
Motions of Dow Jones & Co., 142 F.3d at 499, and remains of paramount importance today.
Facts and context matter, however, and here support disclosure of the Category 2
redactions. See United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991) (“As we have
observed, ‘what is reasonable depends on the context.’” (quoting New Jersey v. T.L.O., 469 U.S.
325, 337 (1985))). Even the secrecy attendant to grand jury material under Federal Rule of
Criminal Procedure 6(e) dissipates to the extent information is “sufficiently widely known.” In
re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007) (“[W]hen once-
secret grand jury material becomes ‘sufficiently widely known,’ it may ‘los[e] its character as
Rule 6(e) material.’” (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994))). See also In re
Motions of Dow Jones & Co., 142 F.3d at 505 (holding that individual’s “identity as a person
subpoenaed to appear before the grand jury” is not protected under Rule 6(e), “not because of
press reports relying on unnamed sources, but because [the individual]’s attorney decided to
reveal this fact to the public.”). As the D.C. Circuit highlighted in this case, the significant
public disclosure and acknowledgement of key facts concerning this now-closed investigation—
namely those made by the targets of the investigation themselves (i.e., former Senator Burr and
Gerald Fauth)—diminishes both the privacy and due process interests of those targets. As such,
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Hubbard’s third, fourth, and fifth factors weigh against DOJ’s request for continued sealing of
Category 2 information.
Finally, regarding the sixth and last Hubbard factor—the purpose for which the
documents were introduced during judicial proceedings—the Circuit observed that “[a]lthough
the relevance of this factor may vary from case to case, it will ‘oftentimes carry great weight’
when ‘a sealed document is considered as part of judicial decisionmaking.’” L.A. Times
Commc’ns LLC, 28 F.4th at 298 (quoting CNN Inc. v. FBI, 984 F.3d 114, 120 (D.C. Cir. 2021)).
Here, the search warrant materials were “central to [the] court’s probable cause determination,”
Application of WP, 201 F. Supp. 3d at 129 (citations omitted), and consequently weigh heavily in
favor of disclosure except to the extent that countervailing and compelling interests dictate
otherwise. In this analysis, the Court concludes that the compelling privacy and law enforcement
interests at stake for third parties and law enforcement techniques and processes favors continued
sealing of the Category 1 redactions but the unsealing of Category 2 information due to already
available and “sufficiently widely known” public disclosures.
The government’s Ex Parte Response in Opposition to Petitioner’s Motion to Unseal
Court Records, ECF No. 12, however, remains fully under seal despite forming “part of” this
Court’s “judicial decision-making” process to resolve petitioner’s initial motion to unseal the
then-hypothetical search warrant materials. L.A. Times Commc’ns LLC, 28 F.4th at 298. Now
that the existence of the search warrant materials is no longer disputed, DOJ will be directed to
submit on the public docket a public version of this opposition brief, with any redactions tracking
those now approved for the search warrant materials.
In a full accounting of the Hubbard factors, Category 1 information concerning the
interests of third parties and law enforcement investigative techniques and processes in the
search warrant materials that the government proposes to maintain under seal, may continue to
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be sealed. The Category 2 information relevant to the government’s investigation into Senator
Burr and Gerald Fauth’s conduct that DOJ seeks to shield under the Due Process Clause shall be
disclosed as instructed in the Order.
B. First Amendment Analysis
The D.C. Circuit has had no occasion to decide whether there is a First Amendment right
of public access to search warrant materials in matters that did not culminate in criminal charges.
See, e.g., L.A. Times Commc’ns LLC, 28 F.4th at 297 (only considering petitioner’s claim to the
search warrant materials under common law and “not . . . reach[ing] the L.A. Times’ arguments
under the First Amendment”); In re New York Times, 585 F. Supp. 2d at 88 (“This Circuit has
not entertained the question . . . whether or not there is a First Amendment qualified right of
access to warrant materials after an investigation has concluded.”). Even assuming that a
qualified right of access under the First Amendment applies to search warrants issued in a closed
investigation, the compelling privacy and law enforcement interests discussed supra plainly
offset any presumption of public access to Category 1 information beyond the limited unsealing
proposed by the government here. Accordingly, as the common-law analysis explains, Category
2 information may be disclosed in the specific factual context of this matter given prior public
disclosure of this information.
IV. CONCLUSION AND ORDER
For the foregoing reasons, DOJ’s proposed redactions in its latest proposed redacted
version of the search warrant and supporting affidavit, ECF No. 34-1, are appropriate to protect
third-party privacy interests—including private financial information of third parties;
information gained from the cooperation of private third-party witnesses; and descriptions of the
government’s law enforcement techniques and processes in the course of the investigation—and
thus will be retained. DOJ’s proposed redactions intended to preserve the due process interests
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of investigative targets against whom the probable cause allegations in the warrant were made
without any criminal charges being brought must be disclosed. Accordingly, it is hereby
ORDERED that DOJ’s Motion for Continued Sealing, ECF No. 25, is GRANTED IN
PART AND DENIED IN PART; it is further
ORDERED that DOJ shall, by September 5, 2022, file on the public docket a redacted
version of the Revised Redacted Search Warrant Materials, ECF No. 34-1, with the following
additional disclosures in the Affidavit in Support of an Application Under Rule 41 for a Warrant
to Search and Seize: (1) in Paragraph 4, disclose all proposed redactions; (2) in Paragraph 59,
disclose the first 3 lines of the paragraph, i.e., words 12–43 in the first sentence; (3) in
Paragraph 61, disclose the entire first, third, and fifth sentences, the first 9 words and the last 15
words in the second sentence, and the first 9 words and the last 12 words in the fourth sentence;
it is further
ORDERED that Los Angeles Times Communications LLC’s Motion to Take Judicial
Notice, ECF No. 27, is GRANTED; and it is further
ORDERED that DOJ file on the public docket a public version of its Sealed Opposition,
ECF No. 12, by September 5, 2022, with redactions consistent with this Memorandum Opinion
and Order.
SO ORDERED.
This is a final and appealable Order.
Date: August 29, 2022
__________________________
BERYL A. HOWELL
Chief Judge
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