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AND EX PARTE
GOVERNMENT'S RESPONSE TO
THE COURT'S JU LY 19.2016 ORDER
The United States, by and through its attorney, the United States Attorney
for the District of Columbia, respectfully submits its Response to the Court's July
19, 2016, Order drrecting the Government to address the following: "
(2)
1 and
respectively.
BackEround
On February 22, 2016, the Washington Post ("the Post") filed a motion for
public access to certain sealed court records "relating to search warrants issued in
connection with the investigations by the United States Attorney's Of6ce for the
District of Columbia (the 'USAO') into campaign frnance corruption during the 2010
election of Vincent C. Gray ("Mayor Gray") as mayor of the District of Columbia,
2
and related investigations into Mayor Gray, Jeffrey E. Thompson and Eugenia L.
Harris, the formal conclusion of which was recently announced by the USAO (the
'Election Investigations')." See Post's Mot. (Doc. No. 1) at 1. On March 24,2O16, the
initial
Response was filed under seal and ex parte. See Doc. No. 7 (Notice of
April
Filing).
On
its
In
accordance
with the
to the
Election
proposed redactions
Investigation warrant materials on April 8, 2016 and its final redactions to those
materials on April f5, 2016. See Doc. Nos. 8 &14. Therefore, on April 15, 2016,
redacted versions of the Election Investigation warrant materials were released to
the public.
In its Initial Response, the government did not oppose the Washington Post's
motion
certain
ee id..
at
9.
d. at 4.
for public
access
to certain
on May 24, 2016, and that, after reviewing the Memorandum of Interview, the U.S.
Attorney's Offrce has declined to proceed with criminal charges against any
individuals involved in the investigation." Id. aL 3.
access
and
requested "some limited access to the Government's ex parte filings in this case, or,
in the alternative, requests a conference with the Court to discuss potential ways to
4
provide the Post with the opportunity to respond to arguments against disclosure of
l.
Post's
30). In this
response,
On July 19, 2016, the Court directed the Government to address the
following: "(1) whether the government has taken any steps and,
if
so, to identiS,
such steps, to noti$r any individuals whose privacy interests may be implicated
through the additional disclosure requested by WP; (2) whether the government
asserts any compelling interest
disclosure in this case and,
if
under (1) above; and (3) whether the government's prior submissions docketed at
[26] and [30-1] in this case may be frled in redacted form on the public docket."
Discussion
I.
II.
Doc. 26 at 3).
A.
Both the First Amendment and the common iaw provide possible bases for an
interested party to seek public access to criminal proceedings and documents.
See
1z
re Application of New York Times Co. for Access to Certain Sealed Court Records
("In re New York Times"),585 F. Supp. 2d 83, 87 (D.D.C. 2008). As explained in/ra,
however, these rights are "qualified." A court may restrict public access in light of
competing interests.
1.
"[]n
to
criminal proceedings," under the First Amendment, "courts must analyze two
factors," commonly referred to as the "experience and logic"
Times,585 F. Supp. 2d
test. 1n re New
York
process have historically been open to the press and general public." 1d. Second, the
court must determine "'whether public access plays a significant positive role in the
functioning of the particular process is question."' Id. (quoting Press'Enterprise
u. Superior
Co.
Court, 478 U.S. 1, 8-9 (1986)). "[T]he First Amendment right of access is
'qualified,' and is not absolute." Id. at 90. The government may, therefore, offer
compelling reason that a particular criminal proceeding or record should remain out
of public view. See id..z "Under the First Amendment qualified right of access test,
the government must demonstrate that total restriction of the right of access is
narrowly tailored to accomplish its compelling interests." Id. at 91.
The issue presented in In re New York Times was "whether or not there [was]
a First
Amendment qualified
right of
access
an
investigation has concluded." 585 F. Supp. 2d at 88. "Applying the 'experience' and
'logic' test
in the first
instance
Using the "experience and logic" test, the D.C. Circuit has held that the First Amendment
quafified right ofaccess extends to plea agreements. See Washington Posl v. Robinson,935 F.2d
282,287-288 (D.C. Cir. l99l).
8
of the Supreme
Court's
Id. at 88,
90. First, with respect to the "experience" prong, the court concluded that "[t]he
post-investigation warrant materials sought
in this
available to the public, and therefore meet the first prong of the Supreme Court's
First Amendment qualified right of access test." Id. at 88. Second, with respect to
"logic" prong, the court reasoned that the "openness of judicial processes and
documents gives assurance that established procedures are being followed and that
deviations wiII become known and corrected." Id'. at 90 (internal quotation marks
omitted).3
2.
In
found that there was a common law right of access to warrant materials after an
investigation has concluded. 585 F. Supp. 2d at 92. But, "[w]hen making a decision
whether or not the public has the right to inspect judicial documents under the
common Iaw test, the
Iight of the relevant facts and circumstances of the particular case." 1d. Borrowing
3 Having concluded that there was a First Amendment qualified right of access to postinvestigation warrant materials, the court in In re New York ftr?res concluded that the
govemment, in that particular case, had "not present[ed] a compelling interest in keeping the
materials secret[.]" 585 F. Supp. 2d at90.
the six-factor test from United States u. Hubbard,650 F.zd 293 (D.C. Cir. 1981), the
court in In re New York Times considered:
(1) the need for public access to the documents at rssue; (2)
public use of the documents; (3) the fact of objection and
identity of those objecting to disclosure; (4) the strength of
generalized property and privacy interests asserted; (5)
possibility of prejudice; and (6) the purposes for which
documents were introduced.
585 F. Supp. 2d
at
92.a
the
the
the
the
the
discretion," held that "the common law factors favor disclosure" in that particular
case.
Id. at
B.
93.
Legal Analysili
The court deemed the sixth Hubbard factor to be inapplicable under the circumstances. See
re New York Times,585 F. Supp. 2d at 92 n.13.
l0
,,
5 On April 14, 2016, the Washington Post published an article discussing accounts that
"Ii]nvestigators last year began asking questions about the ages ofThompson's sexual partners to
determine whether he had committed a crime" and that "lp]rosecutors also conducted interviews
about money and gifts Thompson gave young men, and about whether he did so to hide sexual
relationships." See Ann E. Marinow, "Case against ex-D.C. mayor Gray stalled over claims key
witness had credibilitv issue." https://www.washingtonp ost.com/local/publ ic-salety/case-againstex-dc-mayor-gray-stal led-over-claims-key-witness-had-credibility -issue/201 6/04/ 1.1/1 1205 53e0l8f- I I e6-9203-7b8670959b88 story.html last visited June l. 2016
ll
t2
l3
l4
the
respectivell,.
(Enclosures)
l5
and 2 are
26 and
30.1,
Respectfully Submitted,
CHANNING D. PHILLIPS
D.C. Bar No. 415793
United States Attorney
For the District of Columbia
Michael K. Atkinson
D.C. Bar No. 430517
Assistant United States Attorney
By:
DERRICK L. WILLIAMS
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
202-252-7898
Derrick.Williams2@usdoi. sov
t6