In the Matter of the Application of Wp Company LLC D/B/A/ the Washington Post for Access to Certain Sealed Court Records , 201 F. Supp. 3d 109 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN THE MATTER OF THE APPLICATION
OF WP COMPANY LLC d/b/a THE Civil Action No. 16-mc-351 (BAH)
WASHINGTON POST FOR ACCESS TO Chief Judge Beryl A. Howell
CERTAIN SEALED COURT RECORDS
MEMORANDUM OPINION
The WP Company LLC d/b/a The Washington Post (the “Post”) filed this action seeking
the unsealing of search warrant materials “relating to” the investigation by the United States
Attorney’s Office for the District of Columbia (“USAO”) into alleged campaign finance
violations during the 2010 District of Columbia mayoral election (the “Campaign Finance
Investigation”). See Mot. Public Access Certain Sealed Ct. Recs. (“Post’s Mot.”), ECF No. 1.
After the Post’s motion was granted in part and denied in part, In re the Application of WP Co.
(“Wash. Post I”), No. CV 16-MC-351 (BAH), 2016 WL 1604976 (D.D.C. Apr. 1, 2016),
materials filed in connection with eighteen search warrants, issued between February 2012 and
January 2015, were unsealed and made publicly accessible with limited redactions. Contending
that the government has yet to unseal search warrants filed in furtherance of concededly
“ancillary investigations” of Jeffrey E. Thompson, who was prosecuted as part of the Campaign
Finance Investigation, the Post now seeks the unsealing of these additional warrant materials.
See Suppl. Submission Supp. Post’s Mot. (“Post’s Suppl.”) at 2, ECF No. 27.1 For the reasons
set out below, the Post’s request for further unsealing in this case is denied.
1
The Post also sought the unsealing of any of the government’s ex parte filings in this action that have not
already been made publicly accessible in redacted form. This part of the Post’s request was granted, see Min.
Orders, dated July 27, 2016 and Aug. 2, 2016, and the Post was provided an opportunity to respond to the redacted
versions of the government’s memoranda that were made publicly accessible as part of the Court’s consideration of
the remainder of the Post’s present request for additional disclosure.
1
I. BACKGROUND
Though styled as a “supplemental memorandum,” the Post’s latest filing is more easily
understood as a new motion to unseal documents that, in the Post’s view, “relate to” the
Campaign Finance Investigation but were not previously unsealed in response to the Post’s
original motion in this action. 2 Indeed, while submitting that it “does not know precisely . . . the
current posture” of this action, Post’s Suppl. at 1, the Post brought its present request nearly three
months after resolution of the Post’s original motion, Wash. Post I, 2016 WL 1604976, and a
week after the case was administratively closed, see Min. Entry, dated June 8, 2016.
Nonetheless, as explained below, see infra Part II.B.1, because the Post now seeks access to
materials that were not at issue in the Court’s disposition of the Post’s original motion, the Post’s
present request for additional disclosure must be considered on its own merits. To that end, to
determine whether any additional disclosure is warranted under either the First Amendment or
the common law, the factual and procedural history preceding the Post’s present motion is
briefly summarized.
This action began in earnest on February 19, 2016, when the government and Jeffrey E.
Thompson jointly moved for a protective order governing the production of materials turned
over to Thompson as a part of his prosecution arising out of the Campaign Finance Investigation.
See Protect. Order Governing Mats. Prod. Def., United States v. Thompson, No. 14-cr-49 (CKK)
(D.D.C. Feb. 22, 2016), ECF No. 49. Three days later, the Post initiated this case by moving,
2
Although the Post’s present request is treated as a new motion to unseal, if the Post’s characterization were
correct and this request focused on the same search warrant materials covered by the original motion, the present
request could alternatively be construed as a motion, pursuant to Federal Rule of Civil Procedure 59(e), for
reconsideration of the Court’s partial denial of the Post’s original motion. Under the stringent standard applicable to
such a motion, the Post’s present request “need not be granted unless the . . . court finds that there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004). While this heightened standard is not
applied here, the Post’s present request for additional disclosure is nonetheless denied.
2
pursuant to Local Rule of Criminal Procedure 57.6, for the unsealing of “court records relating to
search warrants issued in connection with” the Campaign Finance Investigation and any “related
investigations” of three individuals linked to the alleged campaign finance violations in that
investigation. See Post’s Mot. at 1.3
“Specifically, the Post [sought] access to: the search warrants, applications, supporting
affidavits, court orders, and returns relating to the [Campaign Finance Investigation] . . . ,
whether or not the warrant was issued and/or executed.” Id. at 1. In support, the Post explained
that this investigation “concerned issues at the very core of the First Amendment—the integrity
of the District of Columbia’s elections and its public officials.” Id. at 3. Moreover, asserting a
“similarly strong interest in more fully reporting on these matters to the public,” id. (citing Decl.
Laura R. Handman (Feb. 22, 2016), ECF No. 1-3), the Post contended it has a qualified right of
access, under both the First Amendment and the common law, to any warrant materials filed in
furtherance of the Campaign Finance Investigation. See Mem. Supp. Mot. Public Access Certain
Sealed Ct. Recs. (“Post’s Mem.”) at 10–26, ECF No. 1-2. On March 24, 2016, the government
submitted a sealed, ex parte response to the Post’s motion, see Gov’t’s Notice of Filing, ECF No.
7, which has since been partially unsealed, see Order on Mot. Part. Unseal, ECF No. 21. As set
out in the redacted response, the government did not object to the unsealing of warrant materials
tied to the Campaign Finance Investigation with appropriate redactions to protect the privacy
interest of individuals named in the documents to be disclosed. Gov’t’s Resp. Post’s Mot.
(“Gov’t’s Resp.”) at 7–9, ECF No. 22.
3
Local Rule of Criminal Procedure 57.6 directs, inter alia, “[a]ny news organization or other interested
person” seeking relief “relating to any aspect of the proceedings in a criminal case” to file an application in the
Miscellaneous Docket of the Court setting forth “a statement of the applicant’s interest in the matter as to which
relief is sought, a statement of facts and a specific prayer for relief.”
3
Reviewing these submissions, the Court construed the Post’s motion to seek “only
warrant materials related to the now-closed Campaign Finance Investigations.” Wash. Post I,
2016 WL 1604976, at *2 n.2. Consequently, the Court granted in part and denied in part the
Post’s motion, and directed the government to file copies of the relevant warrant materials, with
redactions to protect: “(1) the identities of uncharged third parties, (2) the identities and personal
identifiers of any confidential informants, and (3) any personal identifying or contact
information.” Id. at *3. Following an in camera review, and certain limited additional
redactions, the government released redacted versions of more than ninety documents, totaling
nearly 1000 pages, for public review on April 15, 2016. See Gov’t’s Final Redactions, ECF No.
18.
While this action was pending, the sentencing of Thompson in the parallel criminal action
was approaching. In connection with that sentencing, the government, on May 26, 2016,
indicated its intention to submit a supplemental filing in the instant case that “may impact the
content of the parties’ memorand[a] in aid of sentencing and their respective allocutions at the
sentencing hearing.” Gov’t’s Consent Mot. Extend Time File Parties’ Mems. Aid Sentencing &
Cont. Sent. Hr’g at 3, United States v. Thompson, No. 14-cr-49 (CKK), ECF No. 54. The
government has since clarified that certain materials currently under seal describe aspects of
Thompson’s “substantial assistance that did not result in public charges.” Gov’t’s Mem. Aid
Sent. (“Gov’t’s Thompson Sent. Mem.”) at 16 n.8, United States v. Thompson, No. 14-cr-49
(CKK) (D.D.C. July 15, 2016), ECF No. 59. Specifically, the government explained that
“arguably impeaching evidence related to other alleged conduct” had been identified “that
potentially could have been used to undermine [Thompson’s] credibility as a trial witness.” Id.
at 18. While choosing not to sponsor Thompson as a trial witness, the government emphasized
4
that it was “unable to corroborate the most serious allegations related to [Thompson]’s other
conduct, [and therefore] declined to pursue criminal charges related to such conduct.” Id. at 18
n.9.
On June 3, 2016, the government made a supplemental filing, under seal and ex parte, in
the instant case, which is now publicly available in redacted form. See Gov’t’s Suppl. Resp.
Post’s Mot. (“Gov’t’s Suppl.”), ECF No. 37-1. In this redacted filing, the government explains
that it has “completed its final witness interview” and “has declined to proceed with criminal
charges against any of the individuals involved” in certain unidentified investigations. Id. at 3.
Noting both this Court’s prior recognition of the important governmental and individual privacy
interests potentially harmed by the Post’s requested disclosure, as well as Thompson’s earlier
stated interest in maintaining records related to him under seal, the government explained that it
would be “impractical” to protect these interests through targeted redactions. Id. at 6.
In response to the government’s supplemental filing, the Post filed its present request for
additional unsealing on June 15, 2016. See Post’s Suppl. The Post’s supplemental filing cites
the newspaper’s own recent reporting that, during its investigation of alleged campaign finance
violations, the USAO uncovered and investigated allegations concerning unrelated personal
conduct involving Thompson. Id. at 4–5. Specifically, the Post points to information, based on
“confidential and on-the-record sources,” that investigators pursued allegations regarding
Thompson’s sexual relationships, as well as efforts to conceal these relationships from the
public. Id. According to the Post’s reporting, the investigation of this separate personal conduct
ultimately influenced the USAO’s charging decisions in relation to the Campaign Finance
Investigation and, as such, was “plainly critical to the progress and outcome of” that
investigation. Id. at 5. The Post notes, however, that the search warrant materials unsealed
5
under the Court’s prior orders in this case “did not include any materials related” to any such
personal conduct investigations. Id.
With the government’s revelation about “impeaching evidence related to other alleged
conduct” by Thompson, Gov’t’s Thompson Sent. Mem. at 18, the Post now clarifies that its
original motion sought not only warrant materials issued in connection with the Campaign
Finance Investigation, but also any such materials arising from “related” investigations involving
three individuals targeted by the USAO. Post’s Suppl. at 7. The Post acknowledges that it is
unaware of “the full scope of these ‘related investigations’ . . . , or whether those investigations
were formally concluded along with the [Campaign Finance Investigation].” Id. Nonetheless,
proceeding on the assumption that additional warrant materials falling within the scope of its
motion remain under seal, the Post now asserts the public’s right to access any such material.
The government responded to the Post’s supplemental filing on June 29, 2016, which response
has since been made publicly available in redacted form. See Gov’t’s Resp. Wash. Post’s Suppl.
Submission Supp. Post’s Mot., ECF No. 37-2.
On July 19, 2016, the Court directed the government to provide, under seal, further
information regarding its efforts to notify any individuals whose interests may be harmed
through the additional disclosure sought by the Post, as well as any compelling interest that may
be harmed through such disclosure. Min. Order, dated July 19, 2016. In compliance with this
Order, the government submitted an additional sealed filing on July 26, 2016. See Gov’t’s
Notice of Filing, ECF No. 32; Gov’t’s Resp. Court’s July 19, 2016 Order (Sealed), ECF No. 36.
As with the government’s prior ex parte submissions, a redacted version of this most recent
6
response has since been filed on the public docket. See Min. Order, dated Aug. 2, 2016; Gov’t’s
Resp. Court’s July 19, 2016 Order, ECF No. 44.4
Finally, after initially identifying himself as an “interested party” in this litigation in
March 2016, see Jeffrey E. Thompson’s Consent Mot. Enlargement Time File Opp’n, ECF No.
5, Thompson moved on August 3, 2016, for an order denying the Post’s present request for
disclosure of additional warrant materials, Mot. Deny Public Access Certain Ct. Recs.
(“Thompson Mot.”), ECF No. 45. In addition to “defer[ring] to,” but not “adopt[ing] the facts
which are alleged in the record of this matter,” Thompson explains that, in March 2012, federal
agents “executed search warrants in connection with” an unspecified investigation and seized
various items that included “more than twenty-three million pages of documents.” Id. at 3
(quoting In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013)). Contending that any public interest
in further disclosure “does not override his privacy and property rights,” Thompson joins the
government in opposing the unsealing of any additional warrant materials in this case. Id.
In light of these filings, the Court allowed the Post to supplement its own prior
submissions in support of its request for further unsealing. Min. Order, dated Aug. 1, 2016. The
Post having done so, Suppl. Submission Supp. Post’s Mot. Opp’n Thompson Mot. (“Post’s
Suppl. Reply”), ECF No. 46, its request for additional disclosure in response to its motion is now
ripe for review.
4
In order for the Court’s reasoning to be fully discussed here, portions of the filings cited herein are
unsealed, while the full documents remain sealed. See United States v. Reeves, 586 F.3d 20, 22 n.1 (D.C. Cir. 2009)
(unsealing the defendant’s presentence investigation report “to the limited extent referenced in [the] opinion,” but
maintaining that “the full document shall remain physically withheld from public review”) (citing United States v.
Parnell, 524 F.3d 166, 167 n.1 (2d Cir. 2008) (per curiam)).
7
II. DISCUSSION
The Post asserts two pertinent bases for seeking additional disclosure beyond that
provided in response to the Post’s initial motion. 5 First, the Post suggests that the Court
misinterpreted the scope of the Post’s original motion to encompass only those materials
stemming directly from the Campaign Finance Investigation. Post’s Suppl. at 7. Thus, the Post
now reiterates that it seeks “not only [w]arrant [m]aterials ‘issued in connection’ with the
[Campaign Finance Investigation], but also those issued in connection with ‘related
investigations into Mayor [Vincent] Gray, Jeffrey E. Thompson and Eugenia C. Harris.’” Id.
(emphasis in original) (quoting Post’s Mot. at 1); see also Post’s Suppl. Reply at 2 (“[T]he Post
renews its request for access to any additional sealed [w]arrant [m]aterials connected to the
investigations that the [g]overnment has now confirmed are complete.”).
Second, supposing that the government opposes disclosure of any additional warrant
materials “because of the private nature of the facts being investigated,” the Post argues that
“such privacy interests can be adequately addressed by redaction of names and identifying
information about confidential informants.” Post’s Suppl. at 9 (citing In re Application of New
York Times Co. for Access to Certain Sealed Court Records (“In re New York Times”), 585 F.
Supp. 2d 83, 91 (D.D.C. 2008)); Post’s Suppl. Reply at 2–3. Further, the Post argues that “any
privacy interests Thompson retains in the sealed materials is diminished by the fact that he has
been charged with (and pleaded guilty to) the crimes that were investigated in the” Campaign
Finance Investigation. Post’s Suppl. Reply at 3. For this reason, the Post argues that the public’s
5
While the Post also argues that the public enjoys a constitutional right of access to search warrants during
the pendency of an investigation and regardless of whether an investigation has been formally closed, Post’s Suppl.
at 7–8, this Court need not opine about this particular circumstance since the government has made clear that the
unrelated investigations at issue in the Post’s supplemental motion are closed, see Gov’t’s Thompson Sent. Mem. at
18; Gov’t’s Suppl. at 3; Post’s Suppl. Reply at 2.
8
interest in learning additional information regarding individuals targeted in the Campaign
Finance Investigation outweighs any remaining interests in continued closure of relevant warrant
materials. Id. at 3–4.
Following a summary of the legal framework guiding the Court’s analysis, these asserted
grounds for additional disclosure under either the First Amendment or the common law will be
considered in turn.
A. APPLICABLE LEGAL PRINCIPLES
“The public’s right of access to judicial records derives from two independent sources:
the common law and the First Amendment,” In re Fort Totten Metrorail Cases, 960 F. Supp. 2d
2, 5 (D.D.C. 2013) (citing United States v. El-Sayegh, 131 F.3d 158, 160–61 (D.C. Cir. 1997)),
each of which is examined below.
1. First Amendment Right of Public Access to Judicial Proceedings
The First Amendment guarantees a qualified right of public access to criminal
proceedings and related court documents. Globe Newspaper Co. v. Superior Court 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); see also Wash. Post
9
v. Robinson, 935 F.2d 282, 287–288 (D.C. Cir. 1991). Under this so-called “‘experience and
logic’ test,” Ctr. for Nat’l Sec. Studies 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 unconsummatedplea agreements. See
Brice, 649 F.3d at 795–96 (citing authorities).
Even where the First Amendment provides a right of public access, however, this right is
“‘qualified’ and is not absolute.” In re New York Times, 585 F. Supp. 2d at 90; see also Brice,
649 F.3d at 795. In particular, the presumption of public access may be overridden upon a
showing by the government 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, 935 F.2d at 290). Thus, for example, the
D.C. Circuit has held that documents underlying material witness warrants in a prosecution for
sexual abuse, which contained “intensely private and painful information about [two juvenile
victims’] medical and mental health issues,” may be withheld under the First Amendment on the
ground that disclosure, even with redaction of the witnesses’ names, would “entail a grotesque
invasion of the victims’ privacy.” Brice, 649 F.3d at 795, 797. 6
6
The Circuit assumed, without deciding, that the First Amendment guarantees a public right of access to
material witness proceedings. Brice, 649 F.3d at 796.
10
2. Common Law Right of Access to Public Records
In addition to the right of access guaranteed by the First Amendment, the D.C. Circuit has
recognized a “broader, but weaker, common law right” of access to public records, including
certain “judicial records.” El-Sayegh, 131 F.3d at 160 (D.C. Cir. 1997) (citing Wash. Legal
Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 898 (D.C. Cir. 1996)). Much like the First
Amendment analysis described above, “the decision whether a document must be disclosed
pursuant to the common law right of access involves a two-step inquiry.” Wash. Legal Found.,
89 F.3d at 902. First, the court “must decide whether the document sought is a ‘public record,’”
id. (internal quotation mark omitted), with a document’s status as a covered “judicial record”
dependent on “the role it plays in the adjudicatory process.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3
(D.C. Cir. 2013) (explaining that the common law protects the public’s right to inspect and copy
“those ‘government documents created and kept for the purpose of memorializing or recording
an official action, decision, statement, or other matter of legal significance, broadly conceived’”
(quoting Wash. Legal Found., 89 F.3d at 905)).
Like the First Amendment, however, the common law provides only a qualified right of
public access to covered judicial records. Thus, to determine whether a covered judicial record
must be disclosed, the court must “balance the government’s interest in keeping the document
secret against the public’s interest in disclosure.” Wash. Legal Found., 89 F.3d at 902. While
the “starting point” of this analysis is the “strong presumption in favor of public access to
judicial proceedings,” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996),
the D.C. Circuit has identified six factors in determining whether disclosure is compelled under
the common law: “(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,
11
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,” id. (citing United States v.
Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980)).
B. THE POST’S REQUEST FOR ADDITIONAL DISCLOSURE IS DENIED
By its nature, the Post’s request for access to materials currently under seal addresses
sensitive information not previously disclosed to the broader public. As a result, the parties’
submissions necessarily leave some ambiguity as to the precise contours of the parties’
arguments for and against additional disclosure in this case.
Nonetheless, based on the portions of these filings that have been made publicly
available, the Post’s present request centers on search warrants issued in connection with the
investigation of Thompson’s personal conduct unrelated to the activities at issue in the Campaign
Finance Investigation. For its part, the Post has consistently asserted an interest in public
disclosure of warrant materials related to any such investigation on the theory that evidence
uncovered elsewhere influenced the course of the Campaign Finance Investigation. Post’s
Suppl. at 2; Post’s Suppl. Reply at 3–4. The government has acknowledged both here and in
Thompson’s sentencing proceedings that it investigated alleged conduct involving Thompson
before ultimately declining to pursue any charges against individuals implicated in this separate
investigation. Gov’t’s Thompson Sent. Mem. at 18 & n.9; Gov’t’s Suppl. at 3, 6. Finally,
Thompson himself has indicated that investigators executed an unspecified number of search
warrants on his property in March 2012. Thompson Mot. at 3.
Since the Court’s prior decision in this case addressed only those warrants that were
issued in furtherance of the Campaign Finance Investigation itself, which resulted in public
12
indictments and successful prosecutions of a number of individuals, the Court did not have
occasion to consider whether public access to such materials stemming from any separate
investigations into unrelated, uncharged personal conduct is guaranteed under either the First
Amendment or the common law. With this issue now squarely before the Court, the Post’s
asserted bases for additional disclosure in this case are now each considered in turn.
1. Warrants Issued in Connection with Separate Investigations Fall
Outside the Scope of the Court’s Initial Order
In seeking additional disclosure, the Post does not suggest that the government has failed
to disclose warrant materials issued in connection with the Campaign Finance Investigation per
se. Instead, the Post seeks disclosure of warrant materials issued in separate investigations
involving Thompson that it considers “related to” the Campaign Finance Investigation. Post’s
Suppl. at 6–7 (emphasis added). As noted, the government has acknowledged the existence of
“arguably impeaching evidence related to other alleged conduct . . . that potentially could have
been used to undermine [Thompson’s] credibility as a trial witness.” Gov’t’s Thompson Sent.
Mem. at 18. Positing that this evidence was “plainly critical to the progress and outcome of the”
Campaign Finance Investigation, the Post argues that the public maintains a manifest interest in
disclosure of the details of any separate investigations involving Thompson. Post’s Suppl. at 5.
Thus, the Post asserts an interest in examining the details of any separate investigation to better
understand and assess the USAO’s decision-making in the Campaign Finance Investigation. Id.
at 7.
To a degree, the Post’s contention that evidence uncovered through other investigations
involving Thompson influenced the course and outcome of the Campaign Finance Investigation
finds some support in the government’s public filings. Indeed, the government has
acknowledged publicly that it uncovered evidence related to alleged conduct unrelated to the
13
political activities at issue in the Campaign Finance Investigation that the government viewed as
affecting Thompson’s credibility as a trial witness. Gov’t’s Thompson Sent. Mem. at 18. At the
same time, however, the government has indicated that Thompson provided substantial
assistance to authorities in numerous successful prosecutions arising from the Campaign Finance
Investigation. Id. at 16–17. In any event, even assuming that evidence obtained through
separate investigations influenced the ultimate resolution of the Campaign Finance Investigation,
the Post’s suggestion that the public thus maintains an equivalent interest in the details of these
unrelated investigations is unpersuasive.
In describing the public’s interest in the Campaign Finance Investigation, the Post
explained that its requested disclosure “will help shed significant light on a lengthy series of
highly public investigations that had significant, direct impact on D.C. politics, and will provide
the public with valuable insight into how the USAO carried out its responsibilities to investigate
these critical issues.” Post’s Mem. at 9. In so doing, the Post emphasized that the Campaign
Finance Investigation “implicated the highest levels of government in the city” and “concerned
issues at the very core of the First Amendment—the integrity of the city’s elections and its public
officials.” Id. at 2, 22. Recognizing these important considerations, as well as the limited
interest in continued closure given the public prosecutions concluding that long-term
investigation, the government conceded that “maintaining blanket secrecy on the specific records
sought from the Campaign Finance Investigation is not necessary.” Wash. Post I, 2016 WL
1604976, at *2.
By contrast, the materials the Post now seeks to unseal stem not from the public
investigation and prosecution of prominent local elected officials and mayoral candidates, but
from undisclosed and uncharged allegations levied against private citizens. While the Post
14
would portray these unrelated allegations as inexorably linked to the Campaign Finance
Investigation, see Post’s Suppl. at 7, any such link is essentially incidental. Indeed, the
disclosure the Post seeks would provide, at best, limited additional information regarding the
course and resolution of the Campaign Finance Investigation. At the same time, as discussed
below, infra Parts II.B.2.b, II.B.2.c, the Post’s present request implicates important individual
and law enforcement interests not previously at issue in this case. For this reason, to determine
whether any additional unsealing is warranted, the Court must consider whether the disclosure
the Post now seeks is guaranteed under either the Constitution or the common law.
2. No Further Disclosure is Warranted under the First Amendment
In disposing of the Post’s initial motion, the Court held that the First Amendment
protects public access to warrant materials associated with searches conducted during the course
of the now-closed Campaign Finance Investigation. Wash. Post I, 2016 WL 1604976, at *2.
With the Post now seeking disclosure of similar materials stemming from any other, unrelated
investigations, the Court must now consider whether the additional disclosure the Post seeks is
similarly warranted. As explained below, in contrast to the materials previously unsealed in this
case, the warrant materials remaining under seal implicate compelling individual and law
enforcement interests that outweigh any public interest in further disclosure.
a) Prior Ruling Regarding Campaign Finance Investigation Material
With limited binding precedent on this issue, the Court’s prior consideration of the Post’s
asserted right of access to post-investigation search warrant materials drew largely on the
thorough reasoning set out by former Chief Judge Royce Lamberth in In re Application of New
York Times Co. for Access to Certain Sealed Court Records (“In re New York Times”), 585 F.
Supp. 2d 83 (D.D.C. 2008). As here, the In re New York Times Court considered the request by
15
a national newspaper to unseal search warrant materials arising out of a high-profile criminal
investigation in the District of Columbia. Id. at 86–87. Specifically, the New York Times (the
“Times”) sought access, under both the First Amendment and the common law, to warrant
materials related to the search of property owned by an individual identified as a “person of
interest” in the criminal investigation of the mailing of anthrax to members of Congress and the
media soon after the September 11, 2001 terrorist attacks. Id. While this individual was
eventually cleared of any wrongdoing, the search of his property was widely known after it “was
covered as a live media event with helicopter footage of the search in progress.” Id. Such was
the public’s interest in the matter that, even after the suicide of the government’s sole suspect in
the case and the government’s decision to formally close the investigation, the Times sought
access to various warrants that had not been disclosed to the public. Id.
Applying the “experience and logic” test described above, the In re New York Times
Court held that the First Amendment provides a right of public access to post-investigation
warrant materials. See id. at 88–90. In reaching this conclusion, the court observed that “post-
investigation warrant materials . . . have historically been available to the public,” and that
“warrant applications and receipts are routinely filed with the clerk of court without seal.” Id. at
88 (citing FED. R. CRIM. P. 41(i), among other authorities). Further, the court emphasized that
public access to such materials plays a “significant positive role in the functioning of the
criminal justice system, at least at the post-investigation stage,” with disclosure serving “as a
check on the judiciary because the public can ensure that judges are not merely serving as a
rubber stamp for the police.” Id. at 90 (citing authorities).
Reviewing this non-binding authority, this Court agreed that the First Amendment
provides a qualified right of access to warrants issued in connection with the closed Campaign
16
Finance Investigation. Wash. Post I, 2016 WL 1604976, at *2. Having concluded that a
constitutional right of access attached to these materials, the Court further considered whether a
compelling interest necessarily would be harmed by their disclosure. Id. Observing that the
Campaign Finance Investigation is “now closed, and the prosecutions arising from this
investigation widely known,” the Court found no compelling privacy, reputational or law
enforcement interest would be adversely affected by the requested disclosure, since any
remaining privacy interests could be sufficiently protected through appropriate redactions. Id. 7
The Post would now extend this prior holding to allow for public access to all warrants
issued in connection with any now-closed investigations involving Thompson and others that are
“related” to the Campaign Finance Investigation. In the Post’s view, “under this Court’s prior
orders in this case, the Post and the public have a qualified right under the First Amendment to
access court records associated with searches in furtherance of [these] now closed
investigations.” Post’s Suppl. Reply at 2. As explained below, however, this attempt to
generalize the Court’s narrow holding in resolving the Post’s original motion overlooks
important individual and law enforcement interests that distinguish the Post’s present request
from the disclosure already granted in this case.
b) Compelling Individual Interests
The Post’s present effort to obtain access to warrants issued in previously undisclosed
investigations involving Thompson and others directly impacts three distinct, yet overlapping
individual interests. First, the mere association with alleged criminal activity as the subject or
target of a criminal investigation carries a stigma that implicates an individual’s reputational
interest. Second, the substance of the allegations of criminal conduct may reveal details about
7 Indeed, the government conceded that full sealing of the warrants underlying that investigation was no
longer warranted. Wash. Post I, 2016 WL 1604976, at *2 (citing Govt.’s Resp. at 7).
17
otherwise private activities that significantly implicate an individual’s privacy interests,
particularly when those allegations touch on intimate or otherwise salacious details of private
affairs. Finally, where, as here, 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.
Recognizing these compelling interests, the public’s First Amendment right of access
does not automatically attach to search warrants issued in any closed criminal investigations.
Most notably, contrary to the Post’s broad conception of its right to review post-investigation
warrant materials in this case, courts have been reluctant to recognize even a qualified public
right to access to such materials where, as here, an investigation concludes without indictment.
See, e.g., United States v. All Funds on Deposit at Wells Fargo Bank in San Francisco,
California, in Account No. 7986104185, Held in the Name of Account Servs. Inc., & All Prop.
Traceable Thereto, 643 F. Supp. 2d 577, 583 (S.D.N.Y. 2009) (explaining that, where the only
proceedings “bearing any connection” to sealed warrant materials were the “application
proceedings in connection with which the warrants were issued,” the “‘experience’ prong of the
experience and logic test does not support” a First Amendment right of access). Indeed, without
an indictment, even a “closed” investigation is more analogous to a federal grand jury
proceeding, to which no public right of access attaches, than the sort of public criminal
proceeding that lies at the core of the First Amendment.
Unlike criminal trials, grand jury proceedings are presumptively secret. Given the
potential for evidence presented to a grand jury to cause serious harm to a person’s privacy and
due process interests, the Federal Rules of Criminal Procedure ensure that such proceedings
remain closed. Rule 6(e) strictly prohibits public disclosure of any “matter[s] occurring before
18
[a] grand jury,” FED. R. CRIM. P. 6(e)(2), with similar protections afforded to “[r]ecords, orders,
and subpoenas relating to grand-jury proceedings,” FED. R. CRIM. P. 6(e)(6). Thus, even where
an investigation has concluded, grand jury proceedings generally remain secret in order to
“ensure that ‘persons who are accused but exonerated by the grand jury will not be held up to
public ridicule.’” In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007)
(quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)). Recognizing the
important individual interests protected by grand jury secrecy, the Circuit has held that,
“[a]lthough public access plays an important role in other aspects of the judicial process, ‘there is
no First Amendment right of access to grand jury proceedings,’ nor do First Amendment
protections extend to ancillary materials dealing with grand jury matters.” Id. (quoting In re
Motions of Dow Jones & Co., 142 F.3d 496, 499, 502 (D.C. Cir. 1998)).
Much the same, the compelling interests protected by grand jury secrecy are apparent in
other settings in which disclosure is sought of materials regarding a criminal investigation and
the individuals involved, where the investigation did not result in a successful prosecution. For
example, in the context of litigation over the proper scope of disclosure under the Freedom of
Information Act, 5 U.S.C. § 552, the D.C. Circuit has identified the individual “privacy interests
at stake” for persons subject to criminal investigations, including “avoiding the stigma of having
[the subject’s] name associated with a criminal investigation” and “keeping secret the fact that
they were subjects of a law enforcement investigation,” as well as “a second, distinct privacy
interest in the contents of the investigative files.” Citizens for Responsibility & Ethics in Wash.
v. U.S. Dep’t of Justice, 746 F.3d 1082, 1091–92 (D.C. Cir. 2014) (emphasis omitted). These
substantial privacy and reputational interests extend to the target or subject of the criminal
investigation as well as to third parties who may be mentioned or somehow involved in the
19
investigation. Id. at 1092 n.3; see also Hodge v. FBI, 703 F.3d 575, 580–81 (D.C. Cir. 2013)
(“[W]e have recognized that private citizens—such as witnesses, informants, and suspects—have
particularly strong privacy interests.”); Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984)
(“[I]ndividuals have a strong interest in not being associated unwarrantedly with alleged criminal
activity.”); Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 864
(D.C. Cir. 1981) (“There can be no clearer example of an unwarranted invasion of personal
privacy than to release to the public that another individual was the subject of an FBI
investigation.” (quoting Baez v. U.S. Dep’t of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980))).
The D.C. Circuit has clearly expressed its view that “defendants whose prosecutions ended in
acquittal or dismissal have a much stronger privacy interest in controlling information
concerning those prosecutions than defendants who were ultimately convicted,” noting that
“[t]he presumption of innocence stands as one of the most fundamental principles of our system
of criminal justice: defendants are considered innocent unless and until the prosecution proves
their guilt beyond a reasonable doubt.” ACLU v. U.S. Dep’t of Justice, 750 F.3d 927, 933 (D.C.
Cir. 2014).
Moreover, as a general matter, “[t]he Due Process Clause of the Fifth Amendment
protects an individual from governmental accusations of criminal misconduct without providing
a proper forum for vindication.” Doe v. Hammond, 502 F. Supp. 2d 94, 101 (D.D.C. 2007)
(citing authorities). While this protection has been recognized most often in the context of
individuals named as unindicted co-conspirators in an indictment, this protection “extends to
other criminal accusations made by a government attorney, including accusations in factual
proffers and other court memoranda.” Id. at 102 (recognizing this broader interest, but
explaining that exclusion from the immunity provision of a criminal plea agreement does not
20
constitute an accusation (citing United States v. Crompton Corp., 399 F. Supp. 2d 1047, 1049
(N.D. Cal. 2005))); see also In re Interested Party 1, 530 F. Supp. 2d 136, 144 (D.D.C. 2008)
(same); United States v. Korean Air Lines Co., 505 F. Supp. 2d 91, 96 (D.D.C. 2007) (same).
Federal prosecutors are entrusted with broad authority to compel production of
information and formally accuse an individual of criminal wrongdoing. Mindful of the attendant
risks associated with the misapplicationwhether intentional or inadvertentof this powerful
authority, courts have consistently warned against “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.” United States v. Smith, 985 F.
Supp. 2d 506, 526 (S.D.N.Y. 2013); see also Certain Interested Individuals, John Does I-V, Who
Are Employees of McDonnell Douglas Corp. v. Pulitzer Pub. Co., 895 F.2d 460, 467 (8th Cir.
1990) (“Disclosure [of search warrant materials, which included descriptions of intercepted
communications involving unindicted individuals,] would place those individuals in essentially
the same precarious position as unindicted co-conspirators.”); United States v. Smith, 776 F.2d
1104, 1113–14 (3d Cir. 1985) (explaining that inclusion, in a bill of particulars, of names of
unindicted individuals who prosecutors contended “could conceivably be considered as
unindicted co-conspirators” constituted a “predictable injur[y] to the reputations of the named
individuals [that was] likely to be irreparable”); In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981)
(explaining that “no legitimate governmental interests could be served by stigmatizing private
citizens as criminals while not naming them as defendants” (citing United States v. Briggs, 514
F.2d 794, 805, 802 & n.13 (5th Cir. 1975))). But see United States v. Kott, 380 F. Supp. 2d
1122, 1125 (C.D. Cal. 2004), aff’d, 135 F. App’x 69 (9th Cir. 2005) (finding the “danger of
unfounded character assassination in [the search warrant] context [in]sufficient to constitute a
21
compelling governmental interest in maintaining the secrecy of the [warrant materials]”).
Echoing these consistent admonitions from the courts, the United States Attorneys’ Manual
pointedly notes that “there is ordinarily no legitimate governmental interest served by the
government[]” leveling a public allegation of wrongdoing against an uncharged party, and “this
is true regardless of what criminal charges may be contemplated by the Assistant United States
Attorney against the third-party for the future.” USAM § 9–27.760 (internal quotation marks
and citation omitted).
Indeed, the recognition of these compelling individual interests animates the requirement
that prosecutors bring allegations of wrongdoing exclusively through the criminal justice system,
where these interests are protected by means of grand jury secrecy and other constitutional
safeguards. For this reason, the possibility of improper disclosure is particularly troubling where
a law-enforcement investigation is closed without even the submission of evidence to a grand
jury. 8 As the Eight Circuit has explained:
[W]here no indictments have issued against persons allegedly involved in criminal
activity, there is a clear suggestion that, whatever their truth, the Government
cannot prove these allegations. The court of public opinion is not the place to seek
to prove them. If the Government has such proof, it should be submitted to a grand
jury, an institution developed to protect all citizens from unfounded charges. All
citizens, whatever their real or imagined past history, are entitled to the protection
of a grand jury proceeding.
Certain Interested Individuals, 895 F.2d at 466–67; see also Smith, 985 F. Supp. 2d at 526
(same, quoting Certain Interested Individuals). In this sense, disclosure of investigatory
materials that have not been submitted to a grand jury or otherwise resulted in public criminal
8
Although the parties’ submissions on this point are less than clear, Thompson’s citation to In re Sealed
Case, 716 F.3d 603 (D.C. Cir. 2013) in describing the warrants at issue here, see Thompson Mot. at 3–4, suggests
that certain evidence obtained through these warrants was submitted to one or more grand juries. While heavily
redacted, the D.C. Circuit’s decision in that case makes clear that the warrants under consideration there were
“executed . . . as part of a grand jury investigation.” In re Sealed Case, 716 F.3d at 604.
22
charges potentially deprives accused individuals of even the most basic protections of our
criminal justice system and risks irreparably damaging the reputations and privacy of
presumptively innocent citizens. See ACLU, 750 F.3d at 934–935 (“[D]efendants [who] have
been acquitted or had the relevant charges dismissed . . . have a significant and justified interest
in avoiding additional and unnecessary publicity. For example, someone who had been acquitted
of accounting fraud after a full and fair trial, moved on with his life, and started a family might
be especially dismayed were his neighbors, friends, and family to learn about his previous
prosecution due to the publicity associated with the release of the requested information.”).
In this light, the Post’s present request is distinguishable from its original request in a
number of important respects. First, as the Post emphasizes, the USAO conducted the Campaign
Finance Investigation largely in public view, with prosecutors openly announcing their intention
to investigate allegations of illegal fundraising tied to the 2010 mayoral campaign in early 2011.
Post’s Mem. at 4. As a result, many of the allegations levied against the public officials targeted
by investigators were widely known even before these individuals were indicted, with some of
the physical searches giving rise to the sought-after warrants in this case widely reported in the
media. Id. In fact, the Post itself notes that the then-U.S. Attorney for the District of Columbia
publicly discussed the impact of the ongoing investigation on the then-Mayor’s reelection
campaign in the spring of 2014. Id. at 5. In this way, the Campaign Finance Investigation giving
rise to the released warrant materials closely resembled the investigation at issue in In re New
York Times. In both cases, unsealed warrant materials stemmed from a publicly acknowledged
investigation of widely known allegations of misconduct, significantly minimizing the risk that
the requested disclosure would raise new privacy and reputational concerns.
23
By contrast, the Post now seeks access to materials arising from investigations that have
not been publicly discussed and involve presumptively innocent conduct bearing no relationship
to the wrongdoing at issue in the Campaign Finance Investigation. Exposure of previously
unacknowledged allegations, which resulted in no criminal charges, thus more readily raises the
significant possibility of “stigmatizing private citizens as criminals while not naming them as
defendants.” In re Smith, 656 F.2d at 1106. As such, the Post’s contention that these separate
investigations influenced the course and outcome of the Campaign Finance Investigation, Post’s
Suppl. at 4–5, is of no moment. The mere fact that these separate investigations coincided with
the Campaign Finance Investigation, and may even have affected the course and resolution of
that investigation, has no bearing on the reputational and due process interests at stake in the
requested disclosure. Accord Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir.
1989) (denying access to search warrant materials while an investigation is ongoing and
explaining that “persons named in [search] warrant papers will have no forum in which to
exonerate themselves if the warrant materials are made public before indictments are returned”).
Second, compelling personal privacy interests implicated by the Post’s present request
militate strongly against additional disclosure in this case. Importantly, the Post’s present
request is not limited to the unsealing of information confirming that searches were conducted
during the course of the separate Thompson investigation. Instead, the Post seeks access to
“applications, supporting affidavits, court orders, and returns” associated with any such warrants.
Post’s Mot. at 1. While a warrant itself conveys relatively few details regarding an alleged
crime, these supporting materials include detailed information regarding the government’s basis
24
for concluding that a crime has been committed and that evidence of that crime will be
discovered in a specified location. 9
As the government notes, the Post has reported that “prosecutors also conducted
interviews about money and gifts Thompson gave young men, and about whether he did so to
hide sexual relationships.” Gov’t’s Resp. Court’s July 19, 2016 Order at 11 n.5 (quoting Ann E.
Marimow, Case Against Ex-D.C. Mayor Gray Stalled over Claims Key Witness Had Credibility
Issue, WASH. POST (Apr. 14, 2016), https://www.washingtonpost.com/local/public-safety/case-
against-ex-dc-mayor-gray-stalled-over-claims-key-witness-had-credibility-issue/2016/04/14/
1f20553e-018f-11e6-9203-7b8670959b88_story.html). Assuming this report to be accurate, the
D.C. Circuit and the Supreme Court have long recognized the compelling individual privacy
interest in maintaining as secret such sensitive personal information. See Press-Enter. Co. v.
Superior Court of California, 464 U.S. 501, 511 (1984) (recognizing as a “compelling interest”
maintaining as private “deeply personal matters that [a] person has legitimate reasons for
keeping out of the public domain”); Hubbard, 650 F.2d at 324 (recognizing the “[v]alid privacy
interest[] . . . in documents which reveal the intimate details of individual lives, sexual or
otherwise, whether or not they concern innocent third parties” (internal quotation marks and
footnote omitted)).
The Post relies on non-binding, out-of-circuit authority to contend that “general ‘privacy
and reputational concerns typically don’t provide sufficient reason to overcome a qualified First
Amendment right of access,’” Post’s Suppl. Reply at 3 (quoting United States v. Loughner, 769
9
For example, compare the earliest-issued warrant already released in this case, Search and Seizure Warrant,
USA v. Dell Laptop Computer [Redacted] and Blackberry Bold 9700 [Redacted], 12-mj-179 (Feb. 28, 2012), ECF
No. 6-6, with the affidavit supporting the government’s application for that warrant, Gov’t’s Aff. Supp. App. Under
Rule 41 for Warrant Search and Seize, USA v. Dell Laptop Computer [Redacted] and Blackberry Bold 9700
[Redacted], 12-mj-179 (Feb. 28, 2012), ECF No. 6-2.
25
F. Supp. 2d 1188, 1196 (D. Ariz. 2011)); see also In re New York Times, 585 F. Supp. 2d at 93
n.14 (“[C]ourts that have identified legally cognizable privacy interests have done so with more
specificity than a blanket statement that one has a right to get on with his life.”). Here, however,
the disclosure envisioned by the Post highlights specific reputational and privacy interests. In
fact, far from contesting the government’s characterization of these materials, the Post itself
asserts that the materials remaining under seal likely would address intimate personal details
regarding Thompson’s sexual preferences and partners. Post’s Suppl. at 4–5. Moreover, the
Post’s reporting suggests that Thompson actively sought to ensure that this information remained
private. Id.
In addition to Thompson, as instructed by the Court, the USAO took steps to “notify any
individuals whose privacy interests may be implicated through the additional disclosure”
requested by the Post. Min. Order, dated July 19, 2016. In response, the government represents
that it has notified individuals potentially affected by the Post’s present request in order to
explain the content of the Post’s request and provide context as to the interests at stake. Gov’t’s
Resp. Court’s July 19, 2016 Order (Sealed) at 5–6. Unsurprisingly, those individuals contacted
by the USAO echoed the concerns raised by the government in contesting the Post’s motion and
joined the government in opposing any further unsealing in this case. Id.
In sum, absent prior public disclosure of the details of these separate investigations,
revelation of presumptively innocent conduct would constitute a serious invasion of the personal
privacy of any individuals identified in any such materials, as well as their reputational and due
process interests. Accord Brice, 649 F.3d at 797 (holding that revealing “private and painful”
information regarding then-juvenile victims’ physical and mental health could constitute a
“grotesque invasion of the victims’ privacy”).
26
c) Compelling Law Enforcement Interests
Finally, beyond these important individual privacy, reputational, and due process
interests, compelling law enforcement interests likewise weigh against disclosure of search
warrant materials not yet made public in this case.
Specifically, as explained above, supra Part I, Thompson provided substantial assistance
to prosecutors in the Campaign Finance Investigation, including assisting in the investigation and
prosecution of eight other targets of that investigation. Gov’t’s Thompson Sent. Mem. at 16–18.
For obvious reasons, ensuring that investigators are able obtain information and assistance from
individuals with direct knowledge of criminal conduct is critical to law enforcement efforts and
the government’s compelling interest in protecting the public. Such is the significance of this
interest that, where an informant has not already been identified, the government is generally
permitted “to withhold from disclosure the identity of persons who furnish information of
violations of law to officers charged with enforcement of that law.” Smith v. Lanier, 726 F.3d
166, 167 (D.C. Cir. 2013) (quoting Roviaro v. United States, 353 U.S. 53, 59 (1957)); see also
Roviaro, 353 U.S. at 59 (noting this interest in preserving 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”). While Thompson’s identity and assistance to the USAO has now been publicly
acknowledged, the government’s interest in preserving its ability to work with witnesses to
obtain information regarding suspected crimes is directly implicated by the Post’s request for
additional disclosure in this case. Indeed, much as anonymity serves to ensure potential
witnesses are free to provide information without fear of reprisal, preserving as secret intimate
27
details of an individual’s personal life and conduct helps to ensure that witnesses are willing to
step forward to assist important criminal investigations.
The Post’s present request, however, turns this basic intuition on its head. In the Post’s
view, it is precisely because an individual may serve as a witness against a high-profile
defendant that the public maintains an interest in other, unrelated investigations that may have a
bearing on that witness’s credibility. The Court recognizes the significant public interest
generated by the Post’s reporting in this case, which the Post correctly notes touches on matters
of significant public concern. Nonetheless, the notion that, by assisting investigators and
agreeing to serving as a potential witness in a high-profile criminal investigation, an individual’s
intimate life and unrelated personal conduct become fodder for public inspection is simply
inconsistent with the government’s recognized interest in preserving its ability to work with the
public to root out criminal behavior.
d) Redactions Would Not Sufficiently Protect Compelling Interests
Finally, due to the degree of media scrutiny already garnered by the instant action, the
government asserts that “the public will be able to easily determine the names and identities of
the persons referenced in the requested documents,” and that even “limited redactions would
invite conjecture and speculation about the involvement by the affected persons or others in the
allegations discussed in the requested materials.” Gov’t’s Resp. Court’s July 19, 2016 Order
(Sealed) at 13, 15. As a result, the Court concludes redaction of the requested materials is
insufficient to protect adequately the compelling privacy, reputational, and due process interests
identified by the government and Thompson, and, consequently, full closure of the sealed
warrant materials sought by the Post is the least restrictive means of protecting these compelling
interests.
28
* * *
In short, the Post’s effort to obtain additional disclosure by means of its acknowledged
right of access to search warrants issued under the Campaign Finance Investigation amounts to
little more than bootstrapping. Even assuming the public maintains a First Amendment right to
search warrants issued in closed, non-public investigations, the Post’s submissions in support of
its request for further disclosure readily demonstrate that any additional unsealing likely would
significantly infringe upon the personal due process, reputational, and privacy interests of
individuals implicated in those materials and would likewise raise the substantial probability of
harming important law enforcement interests.
Accordingly, the Post’s request, pursuant to the First Amendment, to unseal any post-
investigation warrant materials not previously disclosed is denied. Accord Redacted Mem. Op.,
United States v. Thompson, No. 14-cr-49 (CKK), ECF No. 66 (concluding that, while the First
Amendment provides a qualified right of access to sentencing materials, the government has
demonstrated a compelling interest in sealing materials, like the warrant materials at issue here,
“outlining areas of [Thompson’s] substantial assistance that did not result in public charges”).
3. No Further Disclosure is Warranted under the Common Law
Having concluded that the First Amendment compels no additional disclosure in response
to the Post’s motion, the Court turns next to the Post’s suggestion that the unsealing of search
warrant materials it seeks is guaranteed under the weaker common law right of access to judicial
records. As before, while a common law right of access attaches to the post-investigation
warrant materials the Post seeks, the compelling privacy, reputational, due process, and law
enforcement interests identified above easily offset any limited public interest in additional
disclosure in this case.
29
The D.C. Circuit has not addressed the degree to which the common law provides a
qualified right of access to search warrant materials either before or after an investigation has
concluded. A number of other Circuits, however, have recognized such a right, subject to the
weighing of interests described above, to warrant materials after an investigation has concluded.
See United States v. Bus. of Custer Battlefield Museum & Store Located at Interstate 90, Exit
514, S. of Billings, Mont. (“Custer Battlefield Museum”), 658 F.3d 1188, 1192 (9th Cir. 2011)
(citing authorities from the Second, Fourth, Seventh, and Eighth Circuits). Upon consideration
of these authorities, the Court agrees that “[a]ffidavits in support of seizure or search warrants
are central to a court’s probable cause determination,” and, therefore, “clearly fall within the
definition of ‘judicial documents.’” Id. at 1193 (internal quotation marks omitted) (quoting All
Funds on Deposit at Wells Fargo, 643 F. Supp. 2d at 583). Thus, at least where an investigation
has concluded, a common law right of public access generally attaches to such materials. 10
Nonetheless, for the reasons articulated above, compelling privacy and due process interests of
persons who have not been charged outweigh any limited public interest in further disclosure in
this case.
Here, all but one of the factors identified by the D.C. Circuit in considering the public’s
common law right of access to judicial records point strongly in favor of continued sealing of
warrant materials in this case. Most significantly, as previously noted, supra Part II.B.2.b, the
Post itself asserts that the materials it seeks to unseal touch upon highly intimate personal details,
10
For its part, the Post relies on non-binding authority in this Circuit to contend that “the status of the
investigation is simply one factor to be weighed in the court’s discretionary determination whether the common law
right of access mandates disclosure of particular records.” Post’s Suppl. at 8 (citing In re New York Times, 585 F.
Supp. 2d at 92–93). Other courts, however, have categorically barred access under the common law to “warrant
materials in the midst of a pre-indictment investigation,” on the ground that such records “traditionally [have] been
kept secret for important policy reasons.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006) (quoting Times Mirror Co., 873 F.2d at 1219). In any event, as previously explained, supra n.5, because the
unrelated investigations at issue here are closed, the Court need not consider whether a common law right of access
attaches to warrant materials in ongoing criminal investigations.
30
including sexual preferences and relationships that are not known to the public. In the context of
the common law right of access, the D.C. Circuit and others have long recognized the “[v]alid
privacy interest[] . . . in documents which reveal the intimate details of individuals lives, sexual
or others, whether or not they concern innocent third parties.” See Hubbard, 650 F.2d at 324
(internal quotation marks and footnote omitted); see also Application of Newsday, Inc., 895 F.2d
74, 79 (2d Cir. 1990) (“[T]he common law right of access is qualified by recognition of the
privacy rights of the persons whose intimate relations may thereby be disclosed . . . .”). Beyond
this significant privacy interest, the individual due process, reputational, and law enforcement
concerns described above, supra Parts II.B.2.b, II.B.2.c, further counsel against additional
disclosure in this case. Given the public’s limited access to the information contained in the
sought-after materials, further disclosure would tangibly harm these interests. Apparently
recognizing this risk, both the government itself and each of the individuals whose interests may
be impaired oppose further unsealing in this case. Gov’t’s Resp. Court’s July 19, 2016 Order
(Sealed) at 5–6; see supra Part II.B.2.b.
Relying on In re New York Times, as well as its own reporting, the Post contends that the
private details it believes would be revealed in the sealed materials “are now largely out in the
open,” Post’s Suppl. at 9, thus mitigating any further harm through additional disclosure. As
previously discussed, however, see supra Part II.B.2.b, the present case is readily distinguishable
from In re New York Times in that none of the investigative information giving rise to the sealed
materials at issue here has been publicly acknowledged by the USAO. Apparently conceding
this important distinction, the Post relies on informal “conversations with . . . confidential and
on-the-record sources” to suggest that the information it has reported is now widely
acknowledged. Post’s Suppl. at 4.
31
Setting aside the troubling suggestion that unauthorized disclosures from law
enforcement agents or the USAO have the effect of extinguishing the privacy, reputational, and
due process interests of uncharged third parties, the fact remains that the documents the Post
seeks are not publicly available and the Post’s reporting to date offers scant information
regarding their supposed contents. For this reason, the additional disclosure the Post seeks is
highly likely to significantly infringe on the compelling interests identified above.
Weighed against these important individual privacy, reputational, and due process
interests and law enforcement interests, the Post’s asserted need for public access to the sought-
after materials falls well short of meriting further disclosure in this case. Indeed, as noted above,
supra Part II.B.1, the public interest in evidence of conduct unrelated to the campaign activities
underlying the Campaign Finance Investigation is highly attenuated from the core public
interests identified by the Post in its initial motion. The conduct described by the Post bears no
direct relationship to matters of public trust or the integrity of the District’s elections. Instead,
the public’s interest in disclosure stems from a tangential interest in learning more about the
broader context of the USAO’s Campaign Finance Investigation. While the public’s interest in
holding its elected officials accountable is indeed strong, this secondary interest in gleaning
additional information regarding the credibility of potential witnesses in high-profile criminal
prosecutions is simply insufficient to overcome the compelling interests described above.
Consequently, no further unsealing is warranted under the common law in response to the
Post’s present motion. Accord Redacted Mem. Op., United States v. Thompson, No. 14-cr-49
(CKK), ECF No. 66 (holding that the government “advanced several strong and compelling
interests that outweigh the common law qualified right of access” to sentencing materials, like
32
the warrant materials at issue here, “outlining areas of [Thompson’s] substantial assistance that
did not result in public charges”).
III. CONCLUSION
In denying the Post’s request for additional unsealing in this case, the Court is mindful
that today’s result may be met with some disappointment by the Post and even the USAO.
Though motivated by different incentives, both these parties have interests in disclosure.
Specifically, a full airing of the information available to the USAO in connection with the
Campaign Finance Investigation likely would serve not only to sate the public’s desire for
additional insight into an investigation that continues to hold some mystery, but would also help
explain and perhaps vindicate USAO decisions that have come under intense public scrutiny.
Indeed, it is easy to imagine circumstances in which law enforcement agents or prosecutors
facing evidentiary or legal issues that frustrate their ability to bring formal criminal charges opt
to disregard important individual and even law enforcement interests in order to preserve their
own personal professional reputations. The government properly resisted that temptation in this
case. As the D.C. Circuit has pointed out in a different context, “the government, having brought
the full force of its prosecutorial power to bear against individuals it ultimately failed to prove
actually committed crimes, has a special responsibility—a responsibility it is fulfilling here—to
protect such individuals from further public scrutiny.” ACLU, 750 F.3d at 935.
In the end, “[t]he job of protecting [individual privacy and reputational] interests rests
heavily upon the shoulders of the trial judge, since all the parties who may be harmed by
disclosure are typically not before the court.” Matter of New York Times Co., 828 F.2d 110, 116
(2d Cir. 1987); see also ACLU, 750 F.3d at 935 (observing that “[s]uch balancing decisions,”
involving weighing the “substantial privacy interest at stake” for “defendants who were acquitted
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or had their cases dismissed . . . against the public interest in disclosure . . . [,] generally
speaking, are among the most challenging sorts of cases that judges face”). Here, in light of the
compelling individual and law enforcement interests described above, no further disclosure is
warranted in this case under either the First Amendment or the public’s common law right of
access to judicial materials. Even assuming the records the Post seeks are not categorically
excluded from disclosure, any value in exposing additional details of separate investigations
conducted by the USAO into unrelated conduct of individuals targeted in the Campaign Finance
Investigation is easily outweighed by compelling privacy, reputational, due process, and law
enforcement interests in continued sealing of these materials. For this reason, the Post’s request
for additional unsealing in this case is denied.
Date: August 18, 2016
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S. District Court
for the District of Columbia, ou=Chief Judge,
email=Howell_Chambers@dcd.uscourts.gov, c=US
__________________________
Date: 2016.08.18 14:06:54 -04'00'
BERYL A. HOWELL
Chief Judge
34