Opinion
1:22-MC-756
10-20-2022
IN RE APPLICATION OF PENNLIVE, YORK DAILY RECORD, AND YORK DISPATCH TO UNSEAL COURT RECORDS
BRIAN M. BOYNTON, Principal Deputy Assistant Attorney, General Civil Division, ELIZABETH J. SHAPIRO, Deputy Director Civil Division Federal Programs Branch, Leslie Cooper Vigen, Trial Attorney (DC Bar No. 1019782) Civil Division Federal Programs Branch United States Department of Justice, Counsel for the United States.
(Ex Parte and Under Seal)
BRIAN M. BOYNTON, Principal Deputy Assistant Attorney, General Civil Division, ELIZABETH J. SHAPIRO, Deputy Director Civil Division Federal Programs Branch, Leslie Cooper Vigen, Trial Attorney (DC Bar No. 1019782) Civil Division Federal Programs Branch United States Department of Justice, Counsel for the United States.
GOVERNMENTS OPPOSITION TO APPLICATION OF PENNLIVE, YORK DAILY RECORD, AND YORK DISPATCH TO UNSEAL COURT RECORDS
Schwab, Magistrate Judge.
TABLE OF CONTENTS
INTRODUCTION ....................................1
BACKGROUND....................................2
A. The Government's Investigation....................................2
B. The Search Warrant....................................3
C. The Application to Unseal Court Records....................................8
APPLICABLE LAW....................................10
A. The Common Law Right of Access....................................10
B. The First Amendment....................................11
ARGUMENT....................................13
A. The Common Law Does Not Support Unsealing....................................13
B. The First Amendment Does Not Support Unsealing....................................22
CONCLUSION....................................27
TABLE OF AUTHORITIES
Cases
Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989).................................................15, 22, 23, 26
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979) ....................16
Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596 (1982).........................................................................11, 12
In re Avandia, 924 F.3d 662 (3d Cir. 2019)....................21
In re Capital Cities/ABC, Inc. 's Application for Access to Sealed Transcripts, 913 F.2d 89 (3d Cir. 1990)....................19
In re Cendant Corp., 260 F.3d 183 (3d Cir. 2001)......................................;.........10, 11, 13, 15
In re EyeCare Physicians of Am., 100 F.3d 514 (7th Cir. 1996).....................................................15, 20, 21
In re L.A. Times Commc'ns LLC, 28 F.4th 292 (D.C. Cir. 2022).........................................................14, 19
In re N.Y. Times Co., 585 F.Supp.2d 83 (D.D.C. 2008).........................................................19
In re Search of1993 Jeep Grand Cherokee, 958 F.Supp. 205 (D. Del. 1996)............................................................15
In re Search of Fair Finance, 692 F.3d 424 (6th Cir. 2012)...............................................22, 23, 25, 26
In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569 (8th Cir. 1988)...............................................20, 24, 25, 26
Miller v. Ind. Hosp., 16 F.3d 549 (3d Cir. 1994)....................................................................11
N. Jersey Media Grp. Inc. v. United States, 836 F.3d 421 (3d Cir. 2016)................................................10, 11, 14, 26
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978).........................................................................10, 11
Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994)....................................................................10
Press-Enter. Co. v. Superior Ct. of Cal. for Riverside Cnty., 478 U.S. 1 (1986).............................................................................12, 25
Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989).......................................................passim United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995)
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994)
United States v. Criden, 648 F.2d 814 (3d Cir. 1981)
United States v. Sealed Search Warrants, 868 F.3d 385 (5th Cir. 2017).....................................................14, 15, 16
United States v. Smith, 123 F.3d 140 (3d Cir. 1997)
United States v. Smith (Smith 1), 776 F.2d 1104 (3d Cir. 1985)....................................................16, 17, 18
United States v. Thomas, 905 F.3d 276 (3d Cir. 2018)
Statutes
18 U.S.C. § 371...............................2
18 U.S.C. § 1001 ...............................2
18 U.S.C. § 1512...............................2
Other Authorities
JUSTICE MANUAL § 1-7.400..............................8
INTRODUCTION
A group of media organizations (the Applicants) urge this Court to take the extraordinary step of unsealing a search warrant and associated materials obtained in connection with a highly sensitive, high-profile, active investigation concerning former and current senior-level government officials. The Justice Department has never publicly confirmed any specifics about this investigation, nor has it revealed the detailed facts discussed in the search warrant affidavit. Granting Applicants' requested relief would compromise the government's efforts to investigate serious crimes that threatened the lawful and orderly certification of the 2020 presidential election results. It would also unjustly implicate uncharged individuals in criminal acts without providing them any forum in which to clear their names.
Although the application is replete with generalities about the public right of access, Applicants fail to identify any precedent in which a court has unsealed a warrant application concerning an ongoing, confidential investigation, prior to indictment, and over the government's objection. In such cases, courts have routinely recognized that the confidentiality interests of the ongoing investigation outweigh the interest in public access. The application seeking unsealing should be denied at this time.
BACKGROUND
A. The Government's Investigation
[Redacted]
As part of this investigation, the government is looking into the involvement of U.S. Representative Scott Perry, the congressional representative for Pennsylvania's 10th District.
[Redacted]
[Redacted]
A federal grand jury has been empaneled in the District of Columbia to investigate these matters. To date, no charges have been filed, and the government's investigation remains ongoing.
B. The Search Warrant
On August 2, 2022, the government applied for and received from Magistrate Judge Susan E. Schwab a Rule 41 warrant for the search of Rep. Perry's person, and the search and seizure of Rep. Perry's cellular telephone and associated records and information in the possession, custody, or control of AT&T. See In re Search of the Person of Scott Perry, DOB May 27, 1962, and Information Associated with the Subject Phone, l:22-mc-602 *SEALED* (M.D. Pa. Aug. 2, 2022).
The 76-page affidavit filed in support of the government's application contains detailed, sensitive information about:
• the swearing government agent, ¶¶ 3-5;
• the specific target offenses, ¶ 21;
• PII, including phone numbers and email addresses, of Rep. Perry and numerous other individuals, e.g., ¶¶ 1,8, 10-12, 14-15, 40-41, 47-50, 75-76;
• [Redacted]
• [Redacted]
• specific communications between Rep. Perry and others, including:
• [Redacted]
• [Redacted]
• [Redacted]
• [Redacted]
• [Redacted]
The affidavit assembles this sensitive information into a narrative that explains that probable cause existed to believe that [Redacted] [Redacted] government. Although a search warrant is not a formal allegation of a crime, the affidavit's narrative, if unsealed, would essentially levy such allegations [Redacted]. Because the affidavit and other materials contained sensitive information, the government also sought and received from Magistrate Judge Schwab an order sealing the application, affidavit, and other related materials.
FBI agents executed the warrant on August 9, 2022. Although the government has never acknowledged the existence of the warrant, shortly after it was executed, Rep. Perry issued a statement to Fox News stating that FBI agents had visited him and seized his cell phone. See Paul Steinhauser, Trump ally Rep. Scott Perry says the FBI seized his cell phone one day after Mar-a-Lago raid, Fox News (Aug. 9, 2022, 5:57 PM), https://perma.cc/YQ2E-VUA8.
The government subsequently obtained on August 18, 2022, in the District of Columbia a second warrant authorizing a search of the contents of the forensic extraction of Rep. Perry's cell phone based on probable cause that it contains evidence of federal crimes. That warrant and the related materials are likewise under seal.
Also on August 18, 2022, Rep. Perry publicly filed an emergency motion for return of seized property, in which he disclosed that the warrant at issue here had authorized seizure of Rep. Perry's cell phone, that law enforcement intended to transport the seized device “to Washington, D.C., or to the DOJ-OIG forensic laboratory,” and that the warrant also authorized seizure of records and information associated with Rep. Perry's cell phone number in the possession, custody, or control of AT&T. See Emergency Mot. for Return of Seized Property, Perry v. United States, 1:22-mc-79, ECF No. 1 at 2 (D.D.C. Aug. 18, 2022). The motion also summarized conversations between Rep. Perry's counsel and DOJ representatives regarding the review of seized materials to determine whether the protections of the Speech or Debate Clause apply. Id. at 2-3. It revealed nothing about the affidavit's narrative or any of the detailed, nonpublic information it contains.
Rep. Perry subsequently requested that the court hold his emergency motion in abeyance in light of ongoing discussions with the government regarding a process to prevent disclosure of information protected by the Speech or Debate Clause. Request to Hold in Abeyance Emergency Mot., Perry v. United States, ECF No. 3 (D.D.C. Aug. 24, 2022). Indeed, the warrant authorizing the government to search the extraction from Rep. Perry's cell phone is subject to special procedures which allow Rep. Perry to access and review the data prior to the government for the limited purpose of withholding any Speech or Debate Clause material. To date, over two months after the issuance of the second warrant, Rep. Perry has yet to complete the Speech or Debate privilege log required by the special procedures, and the government has been unable to access or review any of the material from Rep. Perry's phone.
Although certain events discussed in the affidavit have been the subject of media reports or disclosed in connection with congressional investigations, consistent with Justice Department policy, the government has never publicly confirmed the existence of or otherwise commented on the warrant or the investigation, [Redacted] [Redacted]; see also JUSTICE MANUAL § 1-7.400 (“DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”).
C. The Application to Unseal Court Records
On September 29, 2022, Applicants filed an application seeking disclosure of sealed warrant materials that would reveal the specifics of an ongoing investigation, before the government has even had the opportunity to review the information obtained pursuant to the search warrant. Specifically, Applicants requested an order “unsealing the executed warrant, the warrant application, any supporting affidavits, the return, the docket sheet, any subsequent warrants issued, and any other judicial records related to the warrant.” App. of PennLive et al. to Unseal Court Records ¶ 2, ECF No. 1. The application cites a number of media reports connecting the search of Rep. Perry's cell phone to the ongoing investigation regarding attempts to overturn the results of the 2020 presidential election. Id. ¶¶ 11-12. It also cites information made public concerning Rep. Perry's involvement in the DOJ letter scheme as a result of congressional investigations. Id. ¶¶ 13-14. To date, however, DOJ has not addressed publicly any of this reporting, or the overlap between its investigation and ongoing congressional investigations, outside of the previously discussed high-level statement by the Deputy Attorney General.
Applicants urge this Court to unseal the warrant materials and a large swath of related materials-including a subsequent warrant- pursuant to the common-law and First Amendment rights to access judicial records. See Mem. ISO App. of PennLive et al. to Unseal Court Records (Mem.), ECF No. 2. They assert that significant public interest exists in connection with the execution of a search warrant upon a sitting Member of Congress, both due to separation-of-powers concerns and because Rep. Perry is facing a contested election in a few short weeks. But the public interest in the events discussed in detail in the affidavit is significantly outweighed by the government's interest in maintaining confidentiality regarding the specifics of an ongoing investigation involving top government officials that DOJ has not publicly confirmed, in which no charges have been brought, and where the government has not yet had the opportunity to review the materials seized. And disclosure of the warrant materials would risk exacerbating any harm done to Rep. Perry's reelection bid as a result of the search by reviving public interest in the matter shortly before the election, and implicating Rep. Perry and others in crimes with which they have not been charged and without providing them with a forum in which to clear their names.
APPLICABLE LAW
A. The Common-Law Right of Access
Courts have long recognized a common-law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). That right, however, “is not absolute.” Id. at 598. It is “narrower” than the right under the First Amendment. N Jersey Media Grp. Inc. v. United States, 836 F.3d 421, 434 (3d Cir. 2016).
“Whether or not a document or record is subject to the right of access turns on whether that item is considered to be a ‘judicial record.'” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994)). This inquiry asks “whether a document has been filed with the court” or was “otherwise somehow incorporated or integrated into a district court's adjudicatory proceedings.” Id. It also considers whether the item was “relevant to the performance of the judicial function and useful in the judicial process.” N. Jersey Media, 836 F.3d at 435 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)).
Where the presumption does apply, the district court must balance “the strong common law presumption of access” against “the factors militating against access.” In re Cendant, 260 F.3d at 194. The party opposing disclosure has the burden to articulate “that the material is the kind of information that courts will protect” and that “disclosure will work a clearly defined and serious injury to the party seeking closure.” Id. (quoting Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994)). Ultimately, “the decision as to access is one best left to the sound discretion of the trial court,” taking into account “the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 599.
B. The First Amendment
The First Amendment creates a right of public access to criminal trials. See Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596, 603-06 (1982). The right extends to certain other criminal proceedings and records. See Press-Enter. Co. v. Superior Ct. of Cal. for Riverside Cnty., 478 U.S. 1, 7 (1986) (Press-Enterprise 11). To determine whether a First Amendment right of access to a particular criminal proceeding exists, courts apply a two-part test: (1) whether the proceeding has “historically been open to the press and the general public”; and (2) whether “public access plays a significant positive role in the functioning of the particular process in question.'” Id. at 8-9. This is referred to as the ‘“experience' and ‘logic' test.” United States v. Smith, 123 F.3d 140, 147 (3d Cir. 1997).
Like the common-law presumption, the First Amendment right to access “is not absolute.” Globe Newspaper, 457 U.S. at 606. It may be overcome by demonstrating “a compelling governmental interest” that “is narrowly tailored to serve that interest.” Id. at 606-07. In ordering closure, a court must articulate that interest and make “findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise II, 478 U.S. at 9-10. The court also must consider any “reasonable alternatives to closure.” Id. at 14.
ARGUMENT
The government has a compelling interest in preserving the confidentiality of this ongoing investigation, including the specific details regarding its nature, scope, and direction, and the identities of uncharged individuals. That the government has neither publicly acknowledged the investigation, nor brought charges in connection with it, distinguish this case from other instances in which courts have granted access to search warrant materials. The relief Applicants seek here is unprecedented under these circumstances. Disclosure would be improper under either the common law or the First Amendment.
A. The Common Law Does Not Support Unsealing.
The qualified common-law right of access to judicial records does not support unsealing here. As an initial matter, it is not settled in this Circuit that the presumption applies to warrant materials. But assuming it does, the preindictment search warrant materials at issue should remain under seal because their disclosure would inflict a serious and clearly defined injury upon the government with respect to its ongoing investigation. See Tn re Cendant, 260 F.3d at 194. Even the limited disclosure of the search warrant docket or a redacted version of the affidavit would harm the government by confirming the existence of the investigation, and the focus on Rep. Perry. And redaction of the warrant affidavit would be impracticable due to the numerous references to unindicted third parties, [Redacted] and information revealing the nature, scope, and direction of the investigation.
The Third Circuit has never opined upon whether preindictment search warrant applications and supporting affidavits are “judicial records” to which the common law presumption of access applies. It has, however, held that documents constitute judicial records where they are filed with a court “as an aid to the judge in rendering a decision or for some other judicial purpose.” N. Jersey Media, 836 F.3d at 435-36. Applying a similar test, the D.C. Circuit recently held that search warrant materials qualified as “judicial records” because they are “intended to influence a judicial decision to find probable cause to issue a warrant.” See In re L.A. Times Commc'ns LLC, 28 F.4th 292, 297 (D.C. Cir. 2022). Most circuit courts to have considered the issue have found that the common law presumption of access applies to preindictment search warrants. See United States v. Sealed Search Warrants, 868 F.3d 385, 396 (5th Cir. 2017); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65-66 (4th Cir. 1989); but see Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989) (common-law right of access inapplicable to preindictment search warrants because of their similarity to grand jury transcripts and lack of “a history of access” or “an important public need” justifying access). The one district court within this Circuit to have confronted the issue applied the common-law presumption to search warrant materials without analysis. See In re Search of1993Jeep Grand Cherokee, 958 F.Supp. 205, 209 (D. Del. 1996).
Assuming arguendo that the Third Circuit would apply the common-law presumption of access to preindictment search warrants, the “strong presumption” is significantly outweighed by “factors militating against access.” In re Cendant, 260 F.3d at 193-94. Two serious harms weigh heavily against unsealing preindictment warrant materials. First, there is a risk that “the unsealing of pre-indictment warrant materials would threaten an ongoing investigation” by revealing its nature and scope. See Sealed Search Warrants, 868 F.3d at 395; accord In re EyeCare Physicians of Am., 100 F.3d 514, 519 (7th Cir. 1996). Moreover, “prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony,” and “persons identified as being under suspicion of criminal activity might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction.” Times Mirror, 873 F.2d at 1215 (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979)).
Second, “the publication of a warrant could damage an unindicted target's reputation while leaving no judicial forum to rehabilitate that reputation.” Sealed Search Warrants, 868 F.3d at 395. In analogous circumstances, the Third Circuit found the harms of disclosure of unindicted co-conspirators in a bill of particulars outweighed the First Amendment and common-law presumptions of access. United States v. Smith, 776 F.2d 1104, 1115 (3d Cir. 1985) (Smith 1). Publication of the list would “communicate to the general public that the named individuals ... are guilty, or may be guilty, of a felony involving breaches of the public trust” without providing them “an opportunity to prove their innocence in a trial.” Id. at 1113-14. It could cause not just “mere embarrassment,” but might be “career ending for some” and “inflict serious injury on the reputations of all,” some of whom were “public officials” or “public employees.” Id. at 1114. In light of these serious harms, the Third Circuit had “no hesitancy” in concluding that “compelling governmental interest [s]” outweighed the presumption of access. Id.
These two categories of harms militate against disclosure here. Because the government's investigation is ongoing, unsealing would risk irreparable harm by revealing the nature, scope, and direction of the investigation. As discussed, the government has never publicly disclosed the investigation or its scope. It has not confirmed the existence of the warrant at issue. It has not disclosed any of [Redacted] Nor has it confirmed the specific target offenses it is investigating or brought any charges. And to date, the government has not yet accessed or reviewed the information that was the subject of the warrant. In these circumstances, disclosure of the warrant materials, and confirmation of the specifics of the investigation could seriously impair the government's ability to continue its investigation unimpeded, and without prematurely alerting targets as to its direction.
In addition, as in Smith I, the disclosure of the warrant materials would risk serious harm to the reputation of unindicted individuals without providing them a judicial forum in which to attempt to clear their names. See 776 F.2d at 1113-15. [Redacted].
Applicants hardly contest that compelling governmental interests counsel against disclosure here. See Mem. 12-14. But they argue that (1) publicly available information undercuts the government's interest in confidentiality; and (2) release of redacted documents would adequately protect the government's compelling interests. Both arguments fail.
First, Applicants cite no case in which a court unsealed a warrant because individuals outside the investigating governmental entity revealed information about an ongoing investigation. Instead, their cited cases exclusively concern situations where an investigation had concluded and, in many instances, the government had already publicly disclosed the information sought to be sealed. See In re L.A. Tinies, 28 F.4th at 296-98; In re Capital Cities/ABC, Inc.'s Application for Access to Sealed Transcripts, 913 F.2d 89, 95 (3d Cir. 1990); United States v. Criden, 648 F.2d 814, 822 (3d Cir. 1981); In re N.Y. Times Co., 585 F.Supp.2d 83, 90-91 (D.D.C. 2008).
Nor are Applicants correct that Rep. Perry's statements about the warrant, or independent media reporting, undercut the government's compelling interest in confidentiality. Even if the Court were to take these third-party disclosures into account in its balancing test, see In re L.A. Times, 28 F.4th at 298, the government continues to have a compelling interest in avoiding official confirmation of the warrant application, which reveals information about the existence, nature, and scope of its investigation. Maintaining secrecy as to these details is critical to the government's efforts to pursue its investigation without interference.
Second, release of a redacted version of the warrant materials would not sufficiently address the government's overriding interest in maintaining the confidentiality of an ongoing investigation. The Third Circuit has recognized that sealing entire documents is appropriate where releasing redacted portions would not adequately protect compelling governmental interests. See United States v. Thomas, 905 F.3d 276, 283 (3d Cir. 2018) (“redacting only a portion of the document. . . would not sufficiently protect [the government's] interests in confidentiality of sensitive information”).
Moreover, redaction is not a practical alternative to sealing here because the number of redactions required would render the resulting documents meaningless-potentially even misleading. See In re EyeCare Physicians, 100 F.3d at 519. In an analogous situation, the Eighth Circuit affirmed a district court's determination that “line-byline redaction” of sealed search warrant materials “was not practicable” where “[v]irtually every page contain[ed] multiple references to wiretapped telephone conversations or to individuals other than the subjects of the search warrants[,] or revealted] the nature, scope and direction of the government's on-going investigation.” In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988). The same analysis applies here: the warrant affidavit is replete with references to uncharged individuals; specific, undisclosed communications; [Redacted] and other information that reveals “the nature, scope and direction” of the in progress investigation. See id.
Thus, although the Court must conduct a “document-by-document” assessment to support a decision to maintain documents under seal, see In re Avandia, 924 F.3d 662, 677 (3d Cir. 2019), it is entirely within its discretion to determine that the serious harms associated with disclosure of an as-yet-unconfirmed government investigation require the sealing of all materials related to a preindictment search warrant application- including the docket-and that redaction is not a viable alternative, accord, e.g., In re EyeCare Physicians, 100 F.3d at 519.
Finally, Applicants are incorrect insofar as they suggest that the Justice Department's motion to unseal the warrant in the search of former President Trump's Mar-a-Lago residence weighs in favor of unsealing the search warrant materials here. Mem. 15. The search of a former President's residence was unprecedented in United States history and precipitated intense media scrutiny. Under those unique circumstances, the Justice Department moved to unseal the warrant and property receipt, and the court granted that request. See In re Sealed Search Warrant, 22-MJ-8332, ECF Nos. 18, 41 (S.D. Fla. Aug. 5, 2022). In contrast, the government here does not seek the unsealing of warrant materials, and the common-law right of access does not support it.
B. The First Amendment Does Not Support Unsealing
Nor does the First Amendment support Applicants' request to unseal the warrant materials. Although the Third Circuit has not yet addressed this issue, three Circuits have held that there is no First Amendment right to access documents filed in search warrant proceedings in an active criminal investigation. The only Circuit to have disagreed acknowledged that the government's compelling law enforcement interests could necessitate sealing notwithstanding the public's First Amendment rights.
The Ninth Circuit, the Fourth Circuit, and the Sixth Circuit have all found that the First Amendment does not provide a right to access preindictment warrant materials. See In re Search of Fair Finance, 692 F.3d 424, 432-33 (6th Cir. 2012); Baltimore Sun, 886 F.2d at 64-65; Times Mirror, 873 F.2d at 1213-15. Applying the “experience and logic” test, each of these courts first found that there was no historical tradition of public access to preindictment warrant materials. See In re Search of Fair Finance, 692 F.3d at 433; Baltimore Sun, 886 F.2d at 64-65; Times Mirror, 873 F.2d at 1213-15. Next, each court found that the “damage to the criminal investigatory process” far outweighed the public's interest in disclosure. Times Mirror, 873 F.2d at 1215; see also In re Search of Fair Finance, 692 F.3d at 432; Baltimore Sun, 886 F.2d at 64-65. Potential harms included identifying information sources that could be compromised by disclosure; endangering confidential witnesses; “reveal[ing] the government's preliminary theory of the crime”; allowing potential suspects to “destroy evidence” or “flee”; chilling the government's ability to disclose information in support of a warrant application; and disclosing the identities of innocent persons. See In re Search of Fair Finance, 692 F.3d at 432. The Sixth Circuit also held that the public lacks any First Amendment rights in “docket sheets of search warrant proceedings.” Id. at 433.
The Eighth Circuit alone has recognized a First Amendment right of public access to search warrant materials. It first found that, “although the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court without seal.” In re Gunn, 855 F.2d at 573. Second, it found that “public access to documents filed in support of search warrants is important to the public's understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct.” Id. Accordingly, it held that the First Amendment right of access extends to search warrant materials, even where an investigation is ongoing. Id.
Nonetheless, recognizing that the right “is not absolute,” the Eighth Circuit held that the government's compelling interests outweighed it. Id. at 574. The court concluded that the government's ongoing investigation constituted a compelling interest, as unsealing the affidavits would reveal “the nature, scope and direction of the government's investigation and the individuals and specific projects involved,” creating “a substantial probability that the government's ongoing investigation would be severely compromised.” Id.
This Court should follow the overwhelming weight of authority to hold that there is no First Amendment right of public access to warrant materials in an ongoing investigation. The claimed right fails both prongs of the “experience and logic” test. First, there is no historical tradition of access to search warrant proceedings. Contrary to Applicants' assertions, the Third Circuit's observation that the common law right of access contributed to “the development of First Amendment jurisprudence” does not undercut this clear historical precedent. Contra Mem. 10 (quoting United States v. Antar, 38 F.3d 1348, 1361 (3d Cir. 1994)). This is particularly true given that the Third Circuit has never recognized a common-law right of access to warrant materials. Instead, as the Ninth and Sixth Circuits recognized, the government “has always been able to restrict access to warrant materials by requesting a sealing order, which courts have granted freely upon a showing that a given criminal investigation requires secrecy.” Times Mirror, 873 F.2d at 1214; see also In re Search of Fair Finance, 692 F.3d at 430-31.
Second, the “logic” prong requires the court to assess ‘“whether public access plays a significant positive role in the functioning of the particular process in question.'” Press-Enterprise II, 478 U.S. at 8. The Eighth Circuit held that public access to search warrant materials would promote transparency and accountability. See In re Gunn, 855 F.2d at 573. But it-like Applicants here-failed to consider the negative effects of public access on the functioning of the search warrant process, such as compromising ongoing investigations and exposing unindicted individuals to reputational harm. The Eighth Circuit found that those compelling interests were present on the facts of In re Gunn, see Id. at 574, but it failed to recognize, as other Circuits have, that such interests exist whenever there is an ongoing investigation, see In re Search of Fair Finance, 692 F.3d at 432; Baltimore Sun Co., 886 F.2d at 64; Times Mirror, 873 F.2d at 1215.
Thus, although public access to warrant materials may promote legitimate values, the severe harms that would ensue preclude a finding that “public access plays a meaningfully positive role in the functioning” of the search warrant process. N. Jersey Media, 836 F.3d at 433.
Even if the Court were to recognize a First Amendment right of public access to search warrant materials, it should find that compelling governmental and individual interests outweigh that right on the facts of this case. As discussed, compelling law-enforcement and privacy interests weigh in favor of sealing, and no reasonable alternative exists. See supra, pp. 15-22.
CONCLUSION
The application to unseal court records should be denied.
CERTIFICATE OF WORD-COUNT COMPLIANCE
I hereby certify that the foregoing brief complies with the wordcount limit described in Local Rule 7.8(b)(2). The brief contains 4,998 words, as measured by Microsoft Word's word-count feature, not counting the title page, tables, signature block, or certificates.