Wednesday, November 29, 2023

Pressing Need

An attention-grabbing opinion of the United States District Court for the District of Columbia (Chief Judge Boasberg)

In an attention-grabbing development last summer in the classified-documents case against former President Donald J. Trump, the Government raised a potential conflicts issue. This Court thus held a hearing to determine whether attorney Stanley Woodward’s simultaneous representation of Waltine Nauta — one of the former President’s co defendants — and an individual referred to as “Trump Employee 4” gave rise to any ethical conflicts. In the course of seeking a similar conflicts hearing in the Southern District of Florida some days later, the Government publicly released many but not all of the documents related to the hearing conducted in D.C. Believing that newsworthy information may lie behind closed doors, a Press Coalition now seeks to unseal the remaining materials. The Government, for its part, concedes that most of the documents in dispute can be released with minor redactions. It, however, strongly opposes the Application as to one of the filings made in support of its request for a hearing. Although the Court has ordered much material to be released, it draws the line at this last request.

Grand jury secrecy

The Press’s basic error lies in its assumption that all of the relevant materials are now subject to disclosure just because some of them are...

Taking the disclosures made to date and the documents still in dispute together, the Court agrees with the Government that the disputed filings should remain under seal at this time. These documents are “replete with still-secret matters that occurred before the grand jury,” material that is well beyond the scope of the Government’s disclosures in the Southern District of Florida. See Opp. at 8. Since this material does not come within the disclosures made thus far and has not been otherwise authoritatively disclosed by the Government or a grand-jury witness, “Rule 6(e) protections remain intact.” In re New York Times Co., 2023 WL 2185826, at *10 (D.D.C. Feb. 23, 2023). As such, these materials “must be kept under seal” until an authoritative disclosure that covers this information is made. See Fed. R. Crim. P. 6(e)(6).

The judge entered a separate order as to Twitter

As part of the Special Counsel’s investigation into election interference, the Government sought and obtained a search warrant for Twitter’s records associated with the @realDonaldTrump account. After the investigation yielded an indictment of former President Trump, a Press Coalition and Twitter sought to unseal documents associated with the warrant. Since then, large swaths of these proceedings have been unsealed with the Government’s consent, though several documents remain under lock and key. The Court now concludes that further disclosure is not warranted and will thus deny what remains of the Press Application.

A question of balance

As any reader keeping score has observed, the Hubbard analysis in this case is mixed. Ultimately, the undeniable need to protect an ongoing criminal investigation tips the balance toward the Government’s request to continue sealing. There may yet come a time when press access becomes appropriate, but at present the Application is a premature bid for sensitive information pertaining to an active investigation.

(Mike Frisch)

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