In re Press Application for Access to Judicial Records in Case No. 23-SC-31

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

Misc. No. 23-84 (JEB)

United States District Court, District of Columbia

November 29, 2023

MEMORANDUM OPINION

JAMES E. BOASBERG, Chief Judge

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).

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 18 U.S.C. § 2705(b), to prohibit Twitter from revealing the contents or existence of the warrant to another party. Id., ECF No. 2 (NDO Application). Then-Chief Judge Beryl A. Howell granted both requests. Id., ECF Nos. 3 (NDO), 4 (Warrant). The Government also successfully moved to seal the search-warrant docket. Id. 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. Id., 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, 77 F.4th 815, 829, 832 (D.C. Cir. 2023). It thus affirmed the denial of Twitter's motion to vacate and stay in an opinion that was initially sealed. Id. at 836.

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, 77 F.4th 815 (decided July 18, 2023; reissued August 9, 2023); id. 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, id., 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. Id., 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 12. 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.

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. Id. 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), 628 F.Supp.3d 55, 62 (D.D.C. 2022) (quoting In re Application of WP Co. LLC, 201 F.Supp.3d 109, 117 (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), 142 F.3d 496, 498 (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 searchwarrant 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 jury took to ‘summon witnesses and documents.'” Twitter Resp. at 4 (quoting Dow Jones I, 142 F.3d at 498). 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., 2023 WL 2185826, at *4 n.6 (D.D.C. Feb. 23, 2023). But even the Press seems...