United States District Court, District of Columbia
IN RE APPLICATION FOR ACCESS TO CERTAIN SEALED WARRANT MATERIALS
MEMORANDUM OPINION AND ORDER
BERYL
A. HOWELL Chief Judge
The
Associated Press, Cable News Network, Inc., The New York
Times Company, POLITICO LLC, and WP Co., LLC, d/b/a the
Washington Post (collectively, the “Media
Coalition”) request an order unsealing “warrants,
applications, supporting affidavits, and returns relating to
all search, seizure or Stored Communications Act
warrants” (“Warrant Materials”) filed in
this Court relevant to the prosecution of Michael D. Cohen,
the former personal attorney for President Donald Trump.
See Media Coalition's Mot. for Public Access to
Certain Sealed Warrant Materials (“Media
Coalition's Mot.”) at 1, ECF No. 1; Mem. Supp.
Media Coalition's Mot. (“Media Coalition's
Mem.”) at 1, ECF No. 1-1. The government “does
not oppose the [Media Coalition's] request for unsealing
of the warrants, subject to those redactions necessary to
protect ongoing law enforcement matters and respect privacy
concerns.” Gov't's Resp. to Media
Coalition's Mot. (“Gov't's Resp.”) at
2, ECF No. 7. For his part, Cohen has interposed no
objection. For the reasons set out below, the Media
Coalition's Motion is granted.
I.
BACKGROUND
Different
warrant records, which were filed in the U.S. District Court
for the Southern District of New York and related to
Cohen's prosecution, were unsealed earlier this year by
that court. See generally United States v. Cohen,
366 F.Supp.3d 612 (S.D.N.Y. 2019); Order, United States
v. Cohen, No. 18-cr-602 (S.D.N.Y. Mar. 18, 2019), ECF
No. 42 (“Cohen Order”). Those records
refer to some of the Warrant Materials sought by the Media
Coalition here. See Media Coalition's Mem. at
3-4. Specifically, between July and November 2017, the
Special Counsel's Office of the U.S. Department of
Justice (“SCO”) obtained five search warrants,
pursuant to 18 U.S.C. §§ 2703(a), (b), and (c), in
this Court, for emails and other content information
associated with various email accounts used by Cohen, in
connection with the SCO's investigation of Russian
interference into the 2016 Presidential election.
The SCO
subsequently referred aspects of its investigation of Cohen
to the U.S. Attorney's Office for the Southern District
of New York. Gov't's Resp. at 2. The U.S.
Attorney's Office for the Southern District of New York
then sought and obtained additional search warrants related
to Cohen, and, pursuant to those warrants, on April 9, 2018,
the Federal Bureau of Investigation “executed searches
of Cohen's residence, hotel room, office, safe deposit
box, cell phones, and electronic communications.”
Cohen, 366 F.Supp.3d at 618.
A few
months later, on August 21, 2018, Cohen pled guilty in the
U.S. District Court for the S.D.N.Y. to “five counts of
tax evasion based on his failure to report over $ 4 million
in taxable income to the Internal Revenue Service, one count
of making false statements to financial institutions to
obtain a $ 500, 000 home equity line of credit, and two
counts of campaign finance violations based on his
involvement with hush payments to women who threatened to
disclose details of their extra-marital affairs with a
candidate for federal office.” Id. Separately,
on November 29, 2018, Cohen pled guilty in the same court to
“one count of making false statements to the Senate
Select Committee on Intelligence and the House Permanent
Select Committee on Intelligence.” Id. at 618
n.1.
After
Cohen's guilty pleas, a group of media organizations,
some of which have joined the instant motion, successfully
sought in the S.D.N.Y. the unsealing of warrant materials
filed in that district, relating to the FBI's April 9,
2018 searches. Id. at 618. Those warrant materials
were unsealed with redactions necessary to protect (1) the
government's ongoing investigation “pertaining to
or arising from Cohen's campaign finance crimes, ”
id. at 623; (2) “the names of the special
agents who signed the search warrant applications and
submitted supporting affidavits, ” id.; (3)
“the paragraphs of the search warrant affidavits
describing the agents' experience or law enforcement
techniques and procedures, ” id.; (4)
“the privacy interests of uncharged third parties,
” who may “be stigmatized from sensationalized
and potentially out-of-context insinuations of wrongdoing,
” without the ability “to clear their names at
trial, ” id. at 625 (internal quotation marks
and citation omitted); and (5) “the email addresses of
Michael Cohen and others, as well as Cohen's phone
numbers, apartment number, and safety deposit box number,
” Cohen Order at 1.
The
documents unsealed in the S.D.N.Y. referred to four of the
five prior warrants approved by this Court, docketed, under
seal, at 17-mj-503, 17-mj-570, 17-mj-854, and 17-mj-855,
see Media Coalition's Mem. at 3-4, which
warrants were sought by the SCO as part of its investigation
into Russia's attempts to influence the 2016 Presidential
election. Thus, the Media Coalition now seeks, pursuant to
Local Criminal Rule 57.6, an order unsealing the Warrant
Materials, which include the four warrants referenced in the
unsealed S.D.N.Y. documents and “any other warrants
issued in this District related to the Cohen prosecution that
remain publicly unknown.” Media Coalition's Mem. at
8.
As
noted, the government “does not oppose” the Media
Coalition's request for unsealing, but “requests
that the Court authorize redactions consistent with those
authorized . . . in the SDNY litigation.”
Gov't's Resp. at 4. The Media Coalition concurs in
these redactions. See Media Coalition's Reply at
1, ECF No. 8 (“All that remains for the Court, then, is
to determine which, if any, redactions to the Warrant
Materials are both narrowly tailored and necessary to protect
the Government's asserted compelling interests in
protecting the integrity of ongoing investigations and
shielding the identities of certain uncharged third
parties.”); id. at 3 (“[T]his Court
should independently review the Government's proposed
redactions and determine which, if any, are absolutely
necessary to serve the interests asserted, as other courts
presented with these issues have done.” (citing
Cohen, 366 F.Supp.3d at 624)).
Although
Cohen was served with the Media Coalition's Motion and
given time to respond, Cohen has neither appeared in this
action nor otherwise objected to the requested unsealing.
See Media Coalition's Certificate of Service at
2, ECF No. 1-2; Min. Order (Apr. 3, 2019) (providing deadline
for Michael Cohen's counsel to respond to the Media
Coalition's Motion). The Media Coalition's Motion is
now ripe for resolution.
II.
DISCUSSION
The
Media Coalition asks for two forms of relief: (1) disclosure
of the Warrant Materials to the public, pursuant to the
common law right of access, following in camera
review and approval of the government's proposed
redactions; and (2) a “sunlight date, ” at which
time the Warrant Materials will become fully public, absent a
showing by the government or another interested party that
the Warrant Materials should continue to be redacted.
See Media Coalition's Mem. at 14-15; Media
Coalition's Reply at 1, 4. The government agrees to both
forms of relief, discussed in turn below. See
Gov't's Resp. at 3.
First,
the Media Coalition requests unsealing of the Warrant
Materials after in camera review of the
government's proposed redactions. The Media Coalition
initially sought wholesale disclosure of the Warrant
Materials and suggested, in the alternative, targeted
redactions to protect any competing interests. See
Media Coalition's Mem. at 13-14 (“[I]t is difficult
to conceive of circumstances that would be sufficient to
overcome the public interest in release of the Warrant
Materials.”). In response, the government proposed to
make redactions, consistent with those permitted in the
S.D.N.Y., to “protect ongoing law enforcement matters
and respect privacy concerns.” Gov't's Resp. at
3. The government explained that even though the instant
motion concerns different Warrant Materials, relating to
search warrants obtained in this District by the SCO before
the investigation was referred to the S.D.N.Y, “the
issues presented” here and in the S.D.N.Y. litigation
are “substantially similar, including the law
enforcement interests implicated by unsealing of certain
portions of the Warrant Materials.” Id. at 2.
In view
of the government's proposal, the Media Coalition
narrowed its initially broad request for wholesale unsealing
and agreed to the subject matter of the government's
proposed redactions, while requesting that the Court
independently review the redactions to ensure they are
necessary. See Media Coalition's Reply at 1
(“The Media Coalition respectfully requests that this
Court undertake an independent review of the Government's
proposed redactions to ensure that the maximum amount of
information about this consequential matter is provided to
the public.”). Thus, the government submitted for
in camera review proposed redactions
“consistent with those authorized . . . in the
similar” S.D.N.Y. litigation. Gov't's Ex ...