In re Reporters Comm. for Freedom the Press to Unseal Criminal Prosecution of Julian Assange

357 F.Supp.3d 528

IN RE Application of REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS TO UNSEAL CRIMINAL PROSECUTION OF Julian ASSANGE

1:18-mc-37 (LMB/JFA)

United States District Court, E.D. Virginia.

Signed January 30, 2019

Caitlin Veronica Vogus, Reporters Committee for Freedom of the Press, Washington, DC, for Reporters Committee for Freedom of the Press.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is an application filed by the Reporters Committee for Freedom of the Press ("applicant" or the "Committee") seeking an order unsealing judicial records related to what the Committee believes is a criminal prosecution of WikiLeaks founder Julian Assange ("Assange"). The Committee's application will be denied without prejudice.

I.

This application stems from a motion filed by the Government in a criminal prosecution of Seitu Sulayman Kokayi, who was charged with coercion and enticement of a minor. The Government moved to seal the criminal complaint and the supporting affidavit in that case, arguing that "[p]remature disclosure ... would jeopardize the investigation." Government's Motion to Seal Criminal Complaint and Supporting Documents Pursuant to Local Rule 49(B), ¶ 1, United States v. Kokayi, No. 18-mj-406 (E.D. Va. Aug. 22, 2018). Without explanation, the motion twice referred to an individual named "Assange," even though no such individual had been named as a codefendant or mentioned in the Kokayi complaint or supporting affidavit. In the first reference, the motion stated:

The United States has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation. Another procedure short of sealing will not adequately protect the needs of law enforcement at this time because, due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.

Id. ¶ 3. In the second, it stated:

The complaint, supporting affidavit, and arrest warrant, as well as this motion and the proposed order, would need to remain sealed until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter.

Id. ¶ 5 (emphasis added). The Government has characterized its references to "Assange" as "unintentional error." Government's Opp'n to Reporters Committee's Appl. [Dkt. No. 7] ("Gov't's Opp'n") 1.

Although the magistrate judge initially granted the Government's motion to seal the Kokayi complaint, affidavit, arrest warrant, and motion to seal, see Order to Seal, Kokayi, No. 18-mj-406 (E.D. Va. Aug. 24, 2018), those documents (with the exception of the affidavit) were unsealed in early September 2018, after Kokayi had been arrested. See Order, Kokayi, No. 18-mj-406 (E.D. Va. Sept. 4, 2018). Once the motion to seal became public, news outlets and social media users noticed the two references to "Assange" and surmised that the Government had instituted criminal charges against Julian Assange, the well-known founder of WikiLeaks, though there is no public record of such charges having been filed. See Memo. of Points & Authorities in Supp. of the Appl. of the Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange [Dkt. No. 1-4] ("Comm.'s Memo.") 2-3.

The Committee filed this application based on an asserted interest in accessing what it believes are judicial records related to a prosecution of Assange. Specifically, the application "seeks an order unsealing the court records—including, but not limited to, the Court's docket and any criminal complaint, indictment, or other charging document—from the government's criminal prosecution of Assange." Appl. of the Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange [Dkt. No. 1] ¶ 12. The Government opposes the Committee's application on the ground that it has neither confirmed nor denied whether charges have been filed against Assange and cannot be required to disclose that information before an arrest is made.

II.

This case lies at the intersection of two weighty interests. One is the Government's need to be able to investigate criminal activity and successfully bring to justice those charged with criminal conduct. The other is the public's right to access judicial records and proceedings, which is an indispensable feature of the American justice system.

A.

The public and the press share a qualified right to access civil and criminal proceedings and the judicial records filed therein. Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014). This right "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Id. at 266 (citation omitted). For criminal cases, public access "plays a particularly significant role in the functioning of the judicial process" and inures to the benefit of "both the defendant and ... society as a whole." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Indeed, presumptive openness "has long been recognized as an indispensable attribute of an Anglo-American trial." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion).

The right to access judicial records¹ flows from two sources: the common law and the First Amendment. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004). Although they often provide complementary protections, the doctrines are not coextensive. The common law right applies to a broader range of scenarios, but the First Amendment affords a greater degree of substantive protection.

At common law, a presumption of access "extends to all judicial documents and records," Doe, 749 F.3d at 265-66 ; however, that right "is not absolute," Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), and may be rebutted upon a showing of "a ‘significant countervailing interest’ in support of sealing that outweighs the public's interest in openness," In re Application of the United States, 707 F.3d 283, 293 (4th Cir. 2013) (citation omitted).² In determining whether judicial records should be kept under seal, courts consider "whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public's understanding of an important historical event; and whether the public has already had access to the information contained in the records." In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984).

The First Amendment right of access, conversely, "has been extended only to particular judicial records and documents." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). A court faced with a First Amendment right-of-access issue must first "determine the source of the right of access with respect to each document, because only then can it accurately weigh the competing interests at stake." Doe, 749 F.3d at 266 (citation omitted). In determining whether the First Amendment applies to a type of record or proceeding, courts employ the "experience and logic" test, asking "whether the place and process have historically been open to the press and general public" and "whether public access plays a significant positive role in the functioning of the particular process." Balt. Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (citation omitted). Where the First Amendment applies, "access may be restricted only if closure is ‘necessitated by a compelling government interest’ and the denial of access is ‘narrowly tailored to serve that interest.’ " Doe, 749 F.3d at 266 (citation omitted); see Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values .... ").

"[W]hether arising under the First Amendment or the common law," the right of public access to judicial records and proceedings "may be abrogated only in unusual circumstances." Stone, 855 F.2d at 182. The reason for this presumption is simple: "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." Doe, 749 F.3d at 266 (citation omitted).

B.

The parties agree that once an individual has been charged and arrested, both the First Amendment and the common law provide the public with a qualified right to access at least some judicial records in connection with the ongoing prosecution. Charging documents are a quintessential example.³ Historically, the openness of the charging document was intimately connected with the notion of the open trial itself; although government investigations and grand jury deliberations were shrouded in secrecy, formal charges were typically made "either by indictment presented or information filed in court." United States v. Smith, 776 F.2d 1104, 1112 (3d Cir. 1985). As the Third Circuit put it, "This historic tradition of public access to the charging document in a criminal case reflects the importance of its role in the criminal trial process and the public's interest in knowing its contents."See id. ("Knowledge of the charge or charges is essential to an understanding of the trial, essential to an evaluation of the performance of counsel and the court, and, most importantly, essential to an appraisal of the fairness of the criminal process to the accused.").⁴

Of course, that a judicial record is subject to the right of access does not mean that the public is entitled to inspect the...