Holding that search warrants issued under the Stored Communications Act are subject to a "common law presumption of access," the chief judge of the U.S. District Court for the District of Columbia has unsealed five search warrants and related materials obtained by former Special Counsel Robert Mueller in the investigation of Michael Cohen, subject to limited redactions. Judge Beryl Howell's May 21 order follows a similar order earlier this year by a judge in the Cohen prosecution in the Southern District of New York that unsealed warrant materials issued by that court.

The rulings, taken together, solidify the presumption that the public has a right to obtain search warrant applications and related materials, whether they are traditional search warrants issued under Federal Rule of Criminal Procedure 41 or applications to search electronic records referred to as warrants under the SCA, 18 U.S.C. § 2703. Both orders also set a "sunlight date"—a deadline for complete unsealing of the records absent a showing by the government or another interested party that the omitted and redacted information should remain sealed.

Mr. Cohen, the former personal attorney for President Donald Trump, pleaded guilty in 2018 to tax evasion, bank fraud, and campaign finance violations, and separately to lying to House and Senate committees investigating Russian interference in the 2016 election. The Special Counsel's Office began investigating him as part of its probe into contacts between Russians and the Trump campaign, but handed off most of the case to prosecutors in the Southern District of New York after uncovering evidence of unrelated financial crimes.

After Cohen's guilty pleas, a coalition of news organizations including The New York Times, ABC, The Associated Press, CNN, the New York Daily News, Dow Jones, Newsday, the New York Post and CBS sought access to search warrants and SCA warrants related to the Cohen prosecution. Judge William Pauley III, who presided over the first criminal case and Cohen's sentencing, ordered the warrant materials unsealed under the common-law right of public access to judicial records. United States v. Cohen, 366 F. Supp. 3d 612 (S.D.N.Y. 2019). Judge Pauley ordered that the materials be redacted to exclude information that would jeopardize ongoing investigations or invade the privacy of potentially innocent third parties. He also ordered the government to submit a status report three months after the order explaining the need for any continued redaction of the materials.

The warrant materials released under Judge Pauley's order referred by case number to four search warrants Judge Howell had approved in the summer and fall of 2017. A media coalition comprising AP, CNN, The Times, Politico and the Washington Post filed a motion to unseal the records relating to those warrants and any others whose existence was publicly unknown.

Rather than opposing any release of warrant materials, as government attorneys have done in other cases related to the Mueller probe, prosecutors did not oppose unsealing the warrant materials as long as they were redacted to shield the same kinds of information redacted under Judge Pauley's order. At the media coalition's request, Judge Howell undertook an independent review of the government's proposed redactions and ordered the materials released subject to those redactions. Like Judge Pauley, Judge Howell ordered the government to file a status report in three months on whether redacted portions should remain sealed.

In contrast to the materials released in New York, which contained both SCA warrants and traditional Rule 41 search warrants, all of the Washington warrants were issued under the SCA. Although the statute (and the forms the government uses for such requests) refers to "warrants," court orders under the SCA are more akin to subpoenas because they operate as requests to the third-party service providers to turn over information in digital storage and allow the recipient—who is not the target of the investigation—to move to quash.

That distinction has led some judges, including Judge Howell, to hold that SCA warrants are not subject to First Amendment rights of access that apply to traditional search warrants. However, Judge Howell ruled in 2018 that SCA warrants are subject to the broader but weaker common-law presumption of access for judicial records. In re Leopold, 300 F. Supp. 3d 61 (D.D.C. 2018). Judge Howell ruled in Leopold that there was no right of access to SCA warrant materials related to an ongoing investigation, although D.C. federal courts have allowed access to some traditional search warrants when they are returned to the clerk or after an indictment has been issued.

Regarding the Cohen warrants, both courts held that the common-law presumption of access to SCA warrants required the release of those materials, subject to the same kinds of redactions that can apply where the First Amendment provides the right of access. Judge Pauley's ruling did not differentiate between the kinds of redactions allowed for traditional warrants and SCA warrants. These holdings indicate that, in practice, common-law access to SCA warrant materials can be as helpful as First Amendment-based access to traditional warrant materials.

The rulings' "sunshine dates" are also a significant practical development. Before these rulings, only a few courts had imposed deadlines for court records to be completely unsealed, meaning that news organizations would have to ask the court for access at some point in the future without necessarily knowing if any underlying investigations had concluded. The "sunshine dates" set by Judge Howell and Judge Pauley are precedent for wider use of this tool to put the burden of justifying continued sealing on the government or other interested parties, rather than putting the onus on news organizations or the public to ask for unsealing.

Ballard attorneys Jay Ward Brown and Matthew E. Kelley represented the media coalition that won access to the warrant materials in the District of Columbia.

Ballard Spahr Media and Entertainment Group attorneys advise news organizations on access to government records and proceedings and the full range of legal issues that arise in newsgathering.


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