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In recent news, the U.S. Justice Department obtained a warrant to search Mar-a-Lago for potentially sensitive documents retained by former President Donald Trump. This case highlights the importance of transparency in the government’s acquisition of warrants and other criminal-investigative authorities from federal courts. In this article, we delve into the broader context of how federal courts typically approach public access to warrant materials.
The Right to Review Federal Court Filings
Your ability to review federal court filings is rooted in two sources: the First Amendment and the common law. While the common law right applies to a wider range of documents, it is easier for parties seeking secrecy to overcome. On the other hand, the First Amendment right is narrower but stronger. Both sources share a common logic – the public’s confidence in the court system is eroded when important judicial decisions are made behind closed doors and sealed records are presented as conclusive to the public.
However, in the context of warrants, investigators often argue that various interests warrant departure from the presumption of transparency. The Justice Department’s request to seal the affidavit for the Mar-a-Lago warrant highlights some common objections: public access could compromise ongoing investigations, hinder evidence collection and testimony, expose witnesses, and damage the reputation of uncharged individuals.
Diverse Approaches to Public Access
The balance of interests in each jurisdiction and case shapes the landscape of public access to warrant materials. For example, the U.S. Court of Appeals for the Ninth Circuit draws a clear distinction between closed investigations and those without indictments, a perspective often supported by the Justice Department. In contrast, we, along with several other circuit courts, believe that treating the investigation’s status as just one factor enhances the effort to strike a balance between transparency and other relevant interests. This can be achieved by redacting sensitive details rather than concealing entire records. As for the U.S. Court of Appeals for the Eleventh Circuit, they have yet to adopt a specific approach and may ultimately address the question of access to the Mar-a-Lago affidavit.
Unsealing in the Spotlight
It was somewhat surprising, though not unprecedented, to witness the government’s agreement to unseal any information within the ongoing investigation of former President Trump. Even in closed cases, the Justice Department often resists disclosing information it would rather keep hidden. For instance, we have been advocating for public access in the Los Angeles Times’ case regarding the government’s closed insider-trading investigation of U.S. Sen. Richard Burr (R-N.C.). The acknowledgment of the investigation’s existence required intervention from the U.S. Court of Appeals for the D.C. Circuit, despite Burr openly discussing it. Only recently did the Justice Department yield on many of the initial redactions requested for the search warrant materials.
The challenging task of upholding transparency continues, even after the attention on the Mar-a-Lago search wanes. We have recently initiated another matter on behalf of a media coalition seeking to unseal judicial records related to the FBI’s warrants executed at the Laredo home and campaign office of U.S. Rep. Henry Cuellar (D-Texas) earlier this year. As these cases arise, we hope the Justice Department will internalize the view expressed by the current attorney general during his tenure on the D.C. Circuit: that the public’s right of access to judicial records is a fundamental aspect of the rule of law, and transparency should be the norm, not the exception.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press utilizes integrated advocacy to defend and promote press rights in the realm of technology and press freedom. This includes protecting reporter-source confidentiality, examining electronic surveillance law and policy, and addressing content regulation online and in other media. The TPFP is led by Reporters Committee attorney Gabe Rottman and Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary.