UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE PRESS APPLICATION FOR ACCESS TO JUDICIAL RECORDS IN CASE NO. 23-SC-31, IN THE MATTER Misc. No. 23-84 (JEB) OF THE SEARCH OF INFORMATION THAT IS STORED AT PREMISES CONTROLLED BY TWITTER, INC.

MEMORANDUM OPINION

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.

I. Background

In November 2022, Attorney General Merrick B. Garland appointed Jack Smith as

Special Counsel to investigate, in part, “whether any person or entity unlawfully interfered with

the transfer of power following the 2020 presidential election or the certification of the Electoral

College vote held on or about January 6, 2021.” See Dep’t of Justice, Appointment of Special

Counsel (Nov. 18, 2022), https://perma.cc/G5K2-ZN7T. That appointment led to a grand-jury

investigation, which in turn resulted in an indictment. United States v. Trump, No. 23-257, ECF

No. 1 (D.D.C. Aug. 1, 2023) (Indictment).

1 A. Search-Warrant Application

In the course of his investigation into election interference, the Special Counsel sought a

search warrant directing Twitter to produce data and records related to the @realDonaldTrump

account. In re Twitter, No. 23-31, ECF No. 1 (D.D.C. Jan. 17, 2023) (Warrant Application).

That application was supported by a law-enforcement affidavit intended to establish probable

cause for the search. Id. (Affidavit). Alongside the Warrant Application, the Government

requested a nondisclosure order pursuant to

(b), to prohibit Twitter from

revealing the contents or existence of the warrant to another party.

ECF No. 2 (NDO

Application). Then-Chief Judge Beryl A. Howell granted both requests.

ECF Nos. 3

(NDO), 4 (Warrant). The Government also successfully moved to seal the search-warrant

docket.

ECF No. 6 (Mot. to Seal); Minute Order of Feb. 2, 2023 (granting motion).

None too pleased with its obligations under the Warrant and the NDO, Twitter moved to

vacate the NDO on First Amendment grounds and to stay its obligation to comply with the

Warrant; when Judge Howell denied its requests, Twitter appealed.

ECF Nos. 7 (Mot. to

Vacate and Stay), 29 (Order Denying Vacatur and Stay), 30 (Accompanying Op.), 33 (Notice of

Appeal). The D.C. Circuit was unpersuaded by the company’s contentions that “the

nondisclosure order [was] a content-based prior restraint on speech” and that “declining to stay

the enforcement of the warrant pending . . . adjudication of Twitter’s First Amendment challenge

. . . contradicted the Supreme Court’s mandated safeguards in First Amendment cases.” In re

Sealed Case,

(D.C. Cir. 2023). It thus affirmed the denial of Twitter’s

motion to vacate and stay in an opinion that was initially sealed.

.

2 B. Unsealing Prior to Suit

Before the Press Coalition even filed this Application, much of the docket comprising the

proceedings had already been unsealed in full or in part, and some of the information in the still-

sealed documents has otherwise been made public by the Government. To start, on August 1,

2023, Trump was indicted on four felonies related to his alleged attempts to overturn the results

of the 2020 presidential election. See Indictment at 1. The week after the Indictment became

public, the D.C. Circuit unsealed its opinion affirming the denial of Twitter’s motion to vacate

with redactions confined to a single footnote. See In re Sealed Case,

(decided July

18, 2023; reissued August 9, 2023);

at 831 n.6. This Court then sua sponte ordered briefing

on whether Judge Howell’s affirmed Opinion and Order should remain sealed. In re Twitter,

Minute Order of Aug. 10, 2023. Pursuant to the Government and Twitter’s joint response to that

Order,

ECF No. 49 (Joint Status Report), this Court unsealed 509 pages of materials from the

district-court litigation, including briefing, orders, and opinions; 303 pages were unredacted and

206 contained minor redactions.

ECF Nos. 50-1, 50-2.

C. Press Application

That first wave of unsealing did not satisfy the Press Coalition. On August 21, 2023, it

thus filed the present Application seeking access to “all warrant application materials, . . . all

sealing-related motions and orders,” the search-warrant docket sheet, and any other judicial

records “as to which there is no longer a compelling need for secrecy.” ECF No. 1 (App.) at 1–

2. Twitter joined as an interested party and filed a Response that largely echoed the Press’s

position. See ECF No. 8 (Twitter Resp.) at 2. In its Opposition, the Government agreed to

further unsealing, see ECF No. 15 (Gov’t Resp.) at 2, which prompted the Court to enter an

Order making public the docket sheet and most of the entries thereon. See ECF No. 19.

3 With that act of unsealing, the documents still at issue in this Application were finally

crystalized: 1) the Warrant Application; 2) the Warrant Application’s lengthy supporting

Affidavit; 3) the Warrant that issued, which is nearly identical to the Application; 4) the NDO

Application; and 5) the Government’s Ex Parte Opposition — along with its exhibits — to

Twitter’s motion to vacate the NDO and stay the warrant. See Gov’t Resp. at 11 (listing these

materials); ECF No. 16 (Press Reply) at 1–2 (same). Finally, Twitter submits that Judge

Howell’s partially unsealed Opinion (which redacts information that appears in the previous

documents) should be unsealed “in full.” Twitter Resp. at 8.

One final piece of procedural history: this Court has already acted on the Application in

part. Three weeks ago, it ordered an ex parte hearing with the Government to discuss the

viability of releasing certain still-sealed documents with redactions. See Minute Order of Nov.

9, 2023. Following that hearing, on November 17, it ordered that several documents that

contained very little sensitive information or were already public (some in redacted form) be

released in part. See ECF No. 21 (Order to Release Documents). Those documents comprise the

Warrant Application, the issued Warrant, the NDO Application, the Government’s Ex Parte

Opposition, and several exhibits thereto.

Still, hundreds of pages of documents — namely,

the Warrant’s supporting Affidavit, several exhibits to the Ex Parte Opposition, and redacted

pages of various partially unsealed documents — remain sealed. The Court now turns to

whether that should remain the case.

II. Analysis

“The public’s right of access to judicial records derives from two independent sources:

the common law and the First Amendment.” In re L.A. Times Commc’ns LLC (L.A. Times III),

4

, 62 (D.D.C. 2022) (quoting In re Application of WP Co. LLC,

(D.D.C. 2016)). As the Press relies on both in seeking access to the search-warrant

documents, the Court addresses them in turn. Before such examination, the Court must decide

whether a preliminary hurdle — Federal Rule of Criminal Procedure 6(e) — blocks the way to

some of what the Press seeks.

The Government claims that Rule 6(e) supplants the common-law and First Amendment

rights of access to some of the materials at issue here. See Gov’t Resp. at 11 (contending that

common-law right of access applies “to the majority of the materials sought here (except to the

extent they reveal still-secret matters occurring before the grand jury)”); id. at 8, 13 (similar).

That Rule addresses grand-jury secrecy and limits disclosure of matters occurring there. The

grand jury’s business may also call for “judicial proceedings relating to,” but “at arm’s length”

from, that body, including the resolution of a grand-jury witness’s “motion to . . . quash [a]

subpoena” or her invocation “of a testimonial privilege.” Dow Jones & Co. (Dow Jones I),

(D.C. Cir. 1998). Records of such proceedings ancillary to the grand jury’s work

are not themselves subject to grand-jury secrecy but are governed by Rule 6(e)(6), which

requires that “[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept

under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a

matter occurring before a grand jury.” (Emphasis added.) Where it applies, Rule 6(e)(6)

displaces any First Amendment or common-law right of access. See Dow Jones I, 142 F.3d at

500–04.

Twitter contends that Rule 6(e)’s protections have no application here because a search-

warrant application, unlike a motion to quash a grand-jury subpoena, for example, is neither

“itself a grand jury proceeding” nor “an ‘ancillary’ proceeding stemming from actions the grand

5 jury took to ‘summon witnesses and documents.’” Twitter Resp. at 4 (quoting Dow Jones I,

). Further, it posits, the Government’s “decision to rely on materials taken from a

grand jury in this proceeding does not render it a proceeding ancillary to the grand jury’s work.”

ECF No. 18 (Twitter Reply) at 6. Twitter is partially correct because “[s]earch warrants . . . are

not subject to Rule 6(e), even when the warrant is issued to obtain evidence as part of an ongoing

grand jury investigation.” In re New York Times Co.,

, at *4 n.6 (D.D.C. Feb.

23, 2023). But even the Press seems to concede that, nonetheless, portions of the sealed

materials at issue here enjoy Rule 6(e) protection. See Press Reply at 2–3. Indeed, although the

Rule “does not require . . . that a veil of secrecy be drawn over all matters . . . that happen to be

investigated by a grand jury,” it does “protect the identities of witnesses or jurors, the substance

of testimony, the strategy or direction of the investigation, the deliberations or questions of

jurors, and the like.” SEC v. Dresser Indus., Inc.,

, 1382 (D.C. Cir. 1980). At

least some of the information in the sealed documents would fit into these categories.

Ultimately, the Court need not decide this issue because even under the common-law and

First Amendment right-of-access standards, continued sealing is appropriate. The Court moves

on to that analysis now.

A. Common-Law Right of Access

A common-law right of access attaches to “judicial records,” a term defined as those

“documents intended to influence a judge’s decisionmaking.” In re L.A. Times Commc’ns LLC

(L.A. Times II),

, 297 (D.C. Cir. 2022) (cleaned up). There is no dispute that the

documents in question — viz., a search-warrant application along with its supporting materials

and its issued counterpart, a nondisclosure-order application, a Government brief with exhibits,

and Judge Howell’s Opinion — fit that definition.

at 296–97 (characterizing memoranda and

6 “search warrant materials” as judicial records); Gov’t Resp. at 9 n.2 (assuming for purposes of

Response that warrant materials at issue are judicial records).

“The starting point in considering” an Application like this “is a strong presumption in

favor of public access to judicial proceedings.” Hardaway v. D.C. Hous. Auth.,

(D.C. Cir. 2016) (quoting EEOC v. Nat’l Children’s Ctr., Inc.,

(D.C. Cir.

1996)). When a party seeks to overcome this presumption and seal court records, courts engage

in the six-factor inquiry described in United States v. Hubbard,

(D.C. Cir. 1980).

Those factors are:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

Nat’l Children’s Ctr.,

(citing Hubbard, 650 F.2d at 317–22). The Court will

address each separately.

1. Factor One

The first factor, “the need for public access to the documents at issue,” weighs in favor of

disclosure. To start, “[t]he public has an especially strong interest in reviewing documents

‘specifically referred to in the trial judge’s public decision.’” Vanda Pharms., Inc. v. Food &

Drug Admin.,

, 52 (D.D.C. 2021) (citation omitted); In re Grand Jury

Subpoena, Judith Miller (Miller I),

(D.C. Cir. 2006) (“If the public is to see

our reasoning, it should also see what informed that reasoning.”). Here, Judge Howell made

significant reference to the Warrant Affidavit and Ex Parte Opposition in her now-mostly-public

decision. See, e.g., In re Twitter, ECF No. 50-1 (Partially Unsealed Materials) at 172 (citing

7 “lengthy Warrant Affidavit” supporting implementation of nondisclosure order); id. at 183

(crediting Government’s argument that “secrecy interests are particularly salient here . . . based

on the evidence outlined in its ex parte opposition”). Although the sealed materials are cited in

the opinion selectively, “the public also has a transparency interest in knowing what record

evidence the Court saw fit to exclude from its explanation of the reasons underlying its ultimate

decision.” Vanda Pharms., Inc., 539 F. Supp. 3d at 53.

In addition, the presumption of transparency is “accentuated in cases” like this one

“where the government is a party.” United States v. All Assets Held at Bank Julius Baer & Co.,

, 81 (D.D.C. 2020) (cleaned up). That rule comes from the insight that public

attention can act as a strong corrective to government abuses of power. See Hyatt v. Lee,

(D.D.C. 2017) (citing the “strong [public] interest in monitoring not only

functions of the courts but also the positions that . . . elected officials and government agencies

take in litigation”). And, as the Press points out, this case is not just any criminal matter

implicating government practices; it is one of historic proportions with massive significance to

the body politic. See App. at 4–5; cf. United States v. Harris,

, 17–18 (D.D.C.

2016) (“Given the nature of Defendant’s [campaign-finance] offenses, the Court finds that this is

clearly a matter of public interest.”). Significant public interests thus hang in the balance.

Twitter also asserts a particularized interest in unveiling the materials in question:

nondisclosure, it says, leaves it with “a substantially diminished capacity to craft policies

concerning non-disclosure orders, communicate with [its] users about those orders, . . . and,

when necessary, challenge those orders in court.” Twitter Resp. at 11. In so arguing, Twitter

merely articulates a specific manifestation of the general public interest in “understanding what

needs to be pleaded” or “what evidence needs to be put forward” to succeed in like cases. Vanda

8 Pharms., Inc., 539 F. Supp. 3d at 52 (cleaned up). For that reason, Twitter’s concerns do not add

to the heft of this factor.

The Government, for its part, “does not dispute the significant public interest in the

investigation” or suggest that the remaining nonpublic information is irrelevant to understanding

Judge Howell’s decision. See Gov’t Resp. at 11–12. It nevertheless contends that “given the

extensive amount of information to which the public is already privy[,] . . . the need for public

access to the still-sealed documents at issue here is low.” Id. at 11. In elaborating, however, it

states only that the public interest “is far outweighed by the governmental interest in maintaining

the integrity of its continuing investigation and [assorted] privacy interests.” Id. at 12. While

that might be true, it is not an argument against the existence of an appreciable public interest in

the documents in question. The Court will conduct such balancing later in the Hubbard analysis.

2. Factor Two

The second factor — the extent of previous public access — is neutral on the question of

unsealing because the documents contain an unruly mix of secret and public facts. Some of the

details in the sealed materials are not just nonpublic, but are arguably related to the operation of

the grand jury, a type of information ordinarily protected by the most stringent of secrecy rules.

Balancing out that fact, conversely, the documents also refer to a good deal of publicly available

evidence. In the Government’s words, “the affidavit interweaves into its narrative facts made

public elsewhere—such as in the indictment, in unrelated court filings, . . . in congressional

proceedings,” and in “press reports.” Gov’t Resp. at 4, 14. Some of those widely known facts

nonetheless remain sensitive, as unsealing them would allow the public to discern which facts

the Government views as reliable and relevant and give readers insight into the “scope and

direction” of its investigation. In re Sealed Search Warrant,

, 1262 (S.D.

). By contrast, the Court strains to understand how revealing facts already included in

the public indictment — as opposed to facts made public elsewhere in, say, press reports —

would divulge any new information about the focus of the Government’s investigation. The

facts at issue, then, run the gamut from highly sensitive to entirely public.

Conducting the Hubbard analysis separately for the public and nonpublic facts within the

sealed documents would entail hard work for little reward. The Government raises serious

practical concerns with redacting all but entirely public and non-sensitive information, which is

“inextricably intermingled” with more sensitive details. See Gov’t Resp. at 14. Having

reviewed the documents, the Court agrees that a piecemeal treatment of their contents would

serve little purpose; the required redactions would leave them difficult to read and of little value

to the public above and beyond what it already has access to. Cf. Miller I,

(unsealing subpoena in part where investigation ongoing because “discrete portions of the eight

pages can be redacted without doing violence to their meaning”). Where redactions are clearly

practicable, moreover, the Court has already ordered unsealing. See Order to Release

Documents. To sum up, this factor does not move the needle in either direction because of the

mix of secret, somewhat public, and fully public particulars weaved together in the documents.

The third, fourth, and fifth Hubbard factors, by contrast, support nondisclosure.

3. Factor Three

As for the third, “the fact that a party moves to seal the record weighs in favor of the

party’s motion.” Zapp v. Zhenli Ye Gon,

(D.D.C. 2010). The

Government’s opposition to unsealing therefore adds slightly to the case for nondisclosure.

10 4. Factor Four

The fourth Hubbard factor, “the strength of any property and privacy interest asserted,”

lends moderate support to the Government’s position. Two distinct privacy interests are at stake

here: those of “the swearing government agent” and those of “individuals and entities (in

addition to former President Trump) that the government considers relevant to the investigation.”

Gov’t Resp. at 3. As to the first, protecting law enforcement from “being harassed and

intimidated” mid-investigation is important. In re Sealed Search Warrant, 622 F. Supp. 3d at

1263; United States v. All Petroleum, No. 23-882 (D.D.C. May 2, 2023), ECF No. 4 at 4 (D.D.C.

April 10, 2023) (countenancing “a privacy interest that implicates potentially grave threats to a

sensitive maritime operation and the individuals engaged in it”). The investigating law-

enforcement officers involved in this case must be kept anonymous to allow the Government to

proceed unhampered in its investigative efforts.

As to the second privacy issue, the Government rightly states that, “[a]lthough a search

warrant is not a formal allegation of a crime, the affidavit’s narrative, if unsealed, would

essentially levy such allegations against . . . unindicted individuals.” Gov’t Resp. at 4. “[T]he

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.” In re WP Co.,

; see

(collecting cases recognizing this in FOIA context); L.A. Times III, 628

F. Supp. 3d at 67–68 (similar). That privacy interest is particularly weighty for those not

“provided a forum in which to refute the government’s accusations,” such as those not yet

charged with a crime. In re WP Co.,

. On top of all that, the media

spotlight trained on the instant investigation heightens the reputational concerns here. The above

militates in favor of sealing under the fourth Hubbard factor.

11 The Press resists this conclusion, submitting that some of those individuals implicated by

unsealing are public figures who have “diminished expectations of privacy.” Press Reply at 5.

To be sure, the D.C. Circuit has instructed that in applying Hubbard, courts must assess whether

privacy interests are attenuated because “the very subject of the investigation has acknowledged

it” or “the investigation involved actions taken by a public official in his public capacity.” L.A.

Times II, 28 F.4th at 298. The Press acknowledges that its arguments likely do not apply to all

the witnesses and conspirators, some of whom “may be otherwise-private citizens.” Press Reply

at 5. But it neglects to recognize that, even for those its arguments might apply to, “[a]ttenuation

of privacy rights . . . does not equate with extinguishment of those rights.” L.A. Times III, 628

F. Supp. 3d at 68. The Press also does not claim that a majority of the individuals targeted in this

investigation have confessed to such status. Cf. id. at 69 (finding privacy rights of unindicted

public officials so attenuated as to allow disclosure because they publicly disclosed details of

investigation themselves). The privacy concerns of nonpublic individuals involved, together

with the reduced but extant interests of any public officials, align the fourth factor squarely in

favor of sealing.

As with the second factor, redactions are no silver bullet. As the court overseeing a

similar request to unseal warrant materials relating to the search of Mar-a-Lago concluded,

“[T]he public notoriety and controversy about this search [makes it] likely that even witnesses

who are not expressly named in the Affidavit would be quickly and broadly identified over social

media and other communication channels, which could lead to them being harassed and

intimidated.” In re Sealed Search Warrant, 622 F. Supp. 3d at 1263; see also In re WP Co.,

(concluding that “due to the degree of media scrutiny already garnered,”

redaction of search-warrant materials was “insufficient to protect . . . compelling privacy,

12 reputational, and due process interests”). Here, the media has already engaged in speculation

about redacted identities of those discussed in the Indictment. See, e.g., Holly Bailey et al., Here

Are The Trump Co-Conspirators Described in The DOJ Indictment, Wash. Post (Aug. 1, 2023),

https://perma.cc/QX8G-KPN5 (reporting on possible identities of unnamed co-conspirators).

The fourth factor accordingly weighs in favor of sealing the documents as a whole.

5. Factor Five

The fifth factor — prejudice to the party opposing disclosure — is the weightiest factor in

this case. Although Trump has been indicted, “investigation of other individuals continues.”

Special Counsel Jack Smith Delivers Statement, U.S. Dep’t of Justice (Aug. 1, 2023),

https://perma.cc/MJ5V-AVJ6. The Government accordingly hopes to keep private “details about

the government’s investigative methods, including the precise information it sought from the

materials Twitter was ordered to produce; specific events and individuals of interest to the

investigation; and the government’s internal procedures for warrant execution.” Gov’t Resp. at

3. Zooming out, unsealing would make plain “the scope or direction of the continuing

investigation.” Id. at 4. The Court agrees that these are compelling interests that deserve

significant weight. See In re WP Co.,

(“[E]nsuring that investigators are

able [to] obtain information and assistance from individuals with direct knowledge of criminal

conduct is critical to law enforcement efforts and the government’s compelling interest in

protecting the public.”).

In Twitter’s view, “[N]ow that the target of the investigation has been publicly indicted

and arraigned (and through those actions, witnesses and subjects have been alerted to how they

fit within the investigation and prosecution),” sealing is no longer necessary. See Twitter Resp.

at 3–4. On the contrary, the need for secrecy remains “heighten[ed]” even after an indictment

13 has been issued, as long as the investigation is ongoing. See Miller I,

(holding,

following an indictment, that “the special counsel is entitled to conduct his investigation out of

the public eye and with the full cooperation of witnesses who have no fear their role in the

investigation will lightly be disclosed”). Twitter’s assumption that the Indictment has laid bare

all there is to know about the investigation is insufficient to discount the Government’s

compelling interest in conducting its investigation in secret.

6. Factor Six

The final Hubbard factor — the purposes for which the documents were introduced —

favors unsealing for reasons similar to those discussed concerning the first factor. Disclosure is

the norm where “the parties explicitly intend the Court to rely on the sealed materials in

adjudicating their dispute.” Vanda Pharms., 539 F. Supp. 3d at 57 (cleaned up). “The more

relevant [information] is to the central claims of the litigation, the stronger the presumption of

unsealing the [information] becomes.” Harris, 204 F. Supp. 3d at 17–18; see CNN v. FBI,

(D.C. Cir. 2021) (“When a sealed document is considered as part of judicial

decisionmaking, the sixth factor will oftentimes carry great weight.”). There is no doubt that the

sealed materials were central to Judge Howell’s decision to issue the warrant and NDO and that

this factor thus supports disclosure.

* * *

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.

14 B. Constitutional Right of Access

The First Amendment separately requires courts to make criminal proceedings open and

available to the public under certain circumstances. To determine when this constitutional right

of access has force, courts consider the two factors known as the “experience and logic” test: (1)

whether “there has been a tradition of accessibility” to the proceedings in question; and (2)

whether public access would “play[] a particularly significant positive role in the actual

functioning of the process.” Press-Enterprise Co. v. Superior Court of Cal. for Riverside Cnty.

(Press-Enterprise II),

, 9–11 (1986). If the right of access applies, the Government can

overcome it only by showing that “closure is essential to preserve higher values and is narrowly

tailored to serve that interest.”

at 13–14 (citation omitted).

In arguing that no right of access applies here, the Government does not disaggregate the

experience and logic components of this test. It instead argues in a blanket fashion that the right

is inapplicable to search-warrant materials involved in an ongoing investigation. See Gov’t

Resp. at 17–18. The Press similarly does not discuss experience separately from logic, nor does

it levy a meaningful response to the Government’s argument. See App. at 5 (citing authority for

proposition that right of access applies to search-warrant materials at investigation’s conclusion);

Press Reply at 6 (baldly asserting that the “Government does not meaningfully dispute whether

the First Amendment right of access applies to these records”). Twitter’s arguments, by contrast,

do track the test. Addressing the experience prong, it contends that warrant materials are

“‘historically open to the public’ because . . . they fall within the well-established common law

right of access.” Twitter Resp. at 11 (citation omitted). As for logic, Twitter says, transparency

in the warrant process gives the public a chance to assess judicial reasoning and deters courts

15 from acting “as a rubber stamp for the police.”

(citation omitted). The Court will, like

Twitter, adhere to the test and take experience and logic one at a time.

First up is experience. The historical practice is somewhat muddled, but it suggests that

the First Amendment does not open search warrants and related documents to public

examination when an investigation is ongoing. Search-warrant applications traditionally have

been filed ex parte and thus out of the public’s view. And while executed warrants “are

routinely filed with the clerk of court without seal,” In re Search Warrant for Secretarial Area

Outside Off. of Gunn,

, 573 (8th Cir. 1988), that does not necessarily bespeak a

“history of unrestricted access.” Times Mirror Co. v. United States,

(9th

Cir. 1989). When it comes to an active investigation, the Government “has always been able to

restrict access to warrant materials by requesting a sealing order, which courts have granted

freely upon a showing that a given criminal investigation requires secrecy.” Id.; see also In re

Search of Fair Finance,

(6th Cir. 2012) (“We find no evidence . . . of

documents filed in search warrant proceedings historically being made open to the press and

public [after the search is executed].”); Baltimore Sun Co. v. Goetz,

(4th Cir.

1989) (“[P]roceedings for the issuance of search warrants are not open.”); United States v. All

Funds on Deposit at Wells Fargo,

(S.D.N.Y. 2009) (“Warrant

application proceedings are highly secret in nature and have historically been closed to the press

and public[.]”). The option of secrecy to protect an investigation is a hallmark of search-warrant

proceedings.

Neither the Press nor Twitter offers arguments to overcome this history. To start, the

Press misses the mark insofar as it implies that because Trump has been indicted, the instant

search warrant does not, in fact, implicate an ongoing investigation. See App. at 5 (citing cases

16 involving closed investigations). The Court has no reason to doubt the Government’s

representation that its investigation into 2020 election interference continues. See Gov’t Resp. at

15. Twitter comes closer by pointing out that the common-law right of access covers search-

warrant materials without regard to the existence of an ongoing investigation. Such a common-

law right is an “appropriate consideration to take into account when examining the scope of the

First Amendment.” In re New York Times Co.,

(D.D.C. 2008). That

factor alone, however, does not outweigh the clearly limited historical access outlined above.

See In re Search of Fair Finance,

(rejecting dispositive influence of common-law

right of access); United States v. El-Sayegh,

(D.C. Cir. 1997) (calling

common-law right “broader” than that created by First Amendment). Experience is therefore

against the Press.

Nor does it fare any better on the logic factor. In light of the law-enforcement interests at

stake, disclosing warrant materials mid-investigation would not position the public to play a

“‘significant positive role in the functioning’ of the proceeding.” Times Mirror Co., 873 F.2d at

1214–15 (quoting Press-Enterprise II, 478 U.S. at 13–14). To be sure, public participation might

work certain salutary effects on the warrant process, just as public access “may operate as a curb

on prosecutorial or judicial misconduct” in other criminal proceedings. See In re Gunn, 855 F.2d

at 573. Still, those effects are dwarfed by “the damage to the criminal investigatory process that

could result from open warrant proceedings.” Times Mirror Co.,

; see also In re

New York Times Co.,

(“[W]ith respect to warrants, openness plays a

significant positive role in the functioning of the criminal justice system, at least at the post-

investigation stage.”) (emphasis added). For instance, revealing the subjects of an investigation

and the Government’s information sources mid-investigation could result in flight, evidence

17 destruction, or other forms of obstruction. This potential for serious harm does not always

dissipate at the first indictment’s return. As the Fourth Circuit has recognized, sealing after that

point may still be necessary because “the affidavit may describe continuing investigations,

disclose information gleaned from wiretaps that have not yet been terminated, or reveal the

identity of informers whose lives would be endangered.” Baltimore Sun Co.,

; see

also In re Search of Fair Finance,

(similar). That is precisely the situation here.

As such, neither factor in the Press-Enterprise II test indicates that there is a First Amendment

right of access to these warrant materials.

While this Circuit has not yet embraced such a conclusion in a precedential decision, it

has noted in an unpublished one arising in the FOIA context that “there is no clear tradition of

public access to search warrant materials related to an ongoing investigation.” Computer

Professionals for Social Responsibility v. Secret Service,

(D.C. Cir. Jan. 5,

1993). Indeed, the Circuit had the benefit of the opposing view announced by the Eighth Circuit

when it so held. See

(citing In re Gunn,

(8th Cir. 1988)). The Court

accordingly has little trouble joining the near-unanimous chorus of judicial opinions that the

public enjoys no constitutional right to obtain warrant materials relating to an ongoing

investigation.

Even accepting for the sake of argument that a qualified right of access existed, the

Press’s First Amendment argument would fall short. The Eighth Circuit’s treatment of such a

qualified right in In re Gunn is telling. That court noted that the “[r]ecognition of a qualified

First Amendment right of access . . . does not mean that the [sealed materials] must

automatically be disclosed.” In re Gunn, 855 F.2d at 574 (citation omitted). First, it concluded

that the fact of an ongoing investigation was enough to meet the Government’s burden of

18 showing a compelling interest. Id. (taking note of “substantial probability that the government’s

on-going investigation would be severely compromised if the sealed documents were released”).

It also determined that “line-by-line redaction of the sealed documents was not practicable”

because “[v]irtually every page contain[ed] multiple references to” sensitive information. Id. As

explained already, the Government has shown here that the extensive redactions necessary to

protect its investigation would render the documents of little meaning or value to the public. The

Court is therefore satisfied that sealing the documents entirely is a justified and narrowly tailored

course of action.

III. Conclusion

For the foregoing reasons, the Court will deny what remains of the Press’s Application.

A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: November 29, 2023

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