Thursday, August 18, 2016

District Judge Rejects WaPo's Motion to Unseal Records in Spin-Off of D.C. Campaign Finance Investigation

Chief Judge Beryl A. Howell (D.D.C.) today rejected the Washington Post's motion to unseal certain records in a criminal investigation that amounted to a spin-off of the U.S. Attorney's Office investigation into campaign finance violations during the 2010 D.C. mayoral election.

The case revolves around Jeffrey E. Thompson, a fundraiser for former D.C. Mayor Vincent Gray. Thompson and others were prosecuted as part of the U.S. Attorney's Office's investigation into campaign finance shenanigans in the 2010 mayoral election. (Thompson was just sentenced to three months in prison, $10,000 in fines, and 36 months of probation.) Some of the warrants in that case were sealed, and the Post moved successful to unseal them.

While pressing the campaign finance case, the U.S. Attorney's Office uncovered other, potentially criminal information about Thompson. In particular, the Post claimed that the Office uncovered information about Thompson's sexual relationships and his efforts to conceal them. The U.S. Attorney's Office declined to prosecute Thompson, but the Office told the court that the information could have been used to undermine Thompson's credibility as a witness in the campaign finance case. (Indeed, the government ultimately did not sponsor Thompson as a witness.)

WaPo moved to unseal the warrants in the second investigation, arguing that these were really a part of its initial request for warrants in the campaign finance investigation (because the information in the second investigation was directly linked to the campaign finance investigation by way of Thompson's credibility as a witness).

But despite having granted WaPo's motion for warrants in the campaign finance investigation, the court denied WaPo's motion for the second set of warrants. The court explained that while the First Amendment provides a qualified right of access to judicial records, the interests weighed differently here. As to the individual privacy 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 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.

As to the law enforcement interests:

While Thompson's identity and assistance to the [U.S. Attorney's Office] 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.

The court also rejected the Post's argument for open judicial records under the common law.

The ruling means that WaPo won't get any sealed information from the second investigation into Thompson, unless and until it successfully appeals.

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