                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

    IN THE MATTER OF THE APPLICATION
    OF WP COMPANY LLC d/b/a THE                              Civil Action No. 16-mc-351 (BAH)
    WASHINGTON POST FOR ACCESS TO                            Chief Judge Beryl A. Howell
    CERTAIN SEALED COURT RECORDS



                                       MEMORANDUM OPINION

         The WP Company LLC d/b/a The Washington Post (the “Post”) filed this action seeking

the unsealing of search warrant materials “relating to” the investigation by the United States

Attorney’s Office for the District of Columbia (“USAO”) into alleged campaign finance

violations during the 2010 District of Columbia mayoral election (the “Campaign Finance

Investigation”). See Mot. Public Access Certain Sealed Ct. Recs. (“Post’s Mot.”), ECF No. 1.

After the Post’s motion was granted in part and denied in part, In re the Application of WP Co.

(“Wash. Post I”), No. CV 16-MC-351 (BAH), 2016 WL 1604976 (D.D.C. Apr. 1, 2016),

materials filed in connection with eighteen search warrants, issued between February 2012 and

January 2015, were unsealed and made publicly accessible with limited redactions. Contending

that the government has yet to unseal search warrants filed in furtherance of concededly

“ancillary investigations” of Jeffrey E. Thompson, who was prosecuted as part of the Campaign

Finance Investigation, the Post now seeks the unsealing of these additional warrant materials.

See Suppl. Submission Supp. Post’s Mot. (“Post’s Suppl.”) at 2, ECF No. 27.1 For the reasons

set out below, the Post’s request for further unsealing in this case is denied.




1
         The Post also sought the unsealing of any of the government’s ex parte filings in this action that have not
already been made publicly accessible in redacted form. This part of the Post’s request was granted, see Min.
Orders, dated July 27, 2016 and Aug. 2, 2016, and the Post was provided an opportunity to respond to the redacted
versions of the government’s memoranda that were made publicly accessible as part of the Court’s consideration of
the remainder of the Post’s present request for additional disclosure.

                                                         1
I.       BACKGROUND

         Though styled as a “supplemental memorandum,” the Post’s latest filing is more easily

understood as a new motion to unseal documents that, in the Post’s view, “relate to” the

Campaign Finance Investigation but were not previously unsealed in response to the Post’s

original motion in this action. 2 Indeed, while submitting that it “does not know precisely . . . the

current posture” of this action, Post’s Suppl. at 1, the Post brought its present request nearly three

months after resolution of the Post’s original motion, Wash. Post I, 2016 WL 1604976, and a

week after the case was administratively closed, see Min. Entry, dated June 8, 2016.

Nonetheless, as explained below, see infra Part II.B.1, because the Post now seeks access to

materials that were not at issue in the Court’s disposition of the Post’s original motion, the Post’s

present request for additional disclosure must be considered on its own merits. To that end, to

determine whether any additional disclosure is warranted under either the First Amendment or

the common law, the factual and procedural history preceding the Post’s present motion is

briefly summarized.

         This action began in earnest on February 19, 2016, when the government and Jeffrey E.

Thompson jointly moved for a protective order governing the production of materials turned

over to Thompson as a part of his prosecution arising out of the Campaign Finance Investigation.

See Protect. Order Governing Mats. Prod. Def., United States v. Thompson, No. 14-cr-49 (CKK)

(D.D.C. Feb. 22, 2016), ECF No. 49. Three days later, the Post initiated this case by moving,



2
          Although the Post’s present request is treated as a new motion to unseal, if the Post’s characterization were
correct and this request focused on the same search warrant materials covered by the original motion, the present
request could alternatively be construed as a motion, pursuant to Federal Rule of Civil Procedure 59(e), for
reconsideration of the Court’s partial denial of the Post’s original motion. Under the stringent standard applicable to
such a motion, the Post’s present request “need not be granted unless the . . . court finds that there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004). While this heightened standard is not
applied here, the Post’s present request for additional disclosure is nonetheless denied.

                                                           2
pursuant to Local Rule of Criminal Procedure 57.6, for the unsealing of “court records relating to

search warrants issued in connection with” the Campaign Finance Investigation and any “related

investigations” of three individuals linked to the alleged campaign finance violations in that

investigation. See Post’s Mot. at 1.3

         “Specifically, the Post [sought] access to: the search warrants, applications, supporting

affidavits, court orders, and returns relating to the [Campaign Finance Investigation] . . . ,

whether or not the warrant was issued and/or executed.” Id. at 1. In support, the Post explained

that this investigation “concerned issues at the very core of the First Amendment—the integrity

of the District of Columbia’s elections and its public officials.” Id. at 3. Moreover, asserting a

“similarly strong interest in more fully reporting on these matters to the public,” id. (citing Decl.

Laura R. Handman (Feb. 22, 2016), ECF No. 1-3), the Post contended it has a qualified right of

access, under both the First Amendment and the common law, to any warrant materials filed in

furtherance of the Campaign Finance Investigation. See Mem. Supp. Mot. Public Access Certain

Sealed Ct. Recs. (“Post’s Mem.”) at 10–26, ECF No. 1-2. On March 24, 2016, the government

submitted a sealed, ex parte response to the Post’s motion, see Gov’t’s Notice of Filing, ECF No.

7, which has since been partially unsealed, see Order on Mot. Part. Unseal, ECF No. 21. As set

out in the redacted response, the government did not object to the unsealing of warrant materials

tied to the Campaign Finance Investigation with appropriate redactions to protect the privacy

interest of individuals named in the documents to be disclosed. Gov’t’s Resp. Post’s Mot.

(“Gov’t’s Resp.”) at 7–9, ECF No. 22.




3
           Local Rule of Criminal Procedure 57.6 directs, inter alia, “[a]ny news organization or other interested
person” seeking relief “relating to any aspect of the proceedings in a criminal case” to file an application in the
Miscellaneous Docket of the Court setting forth “a statement of the applicant’s interest in the matter as to which
relief is sought, a statement of facts and a specific prayer for relief.”

                                                           3
       Reviewing these submissions, the Court construed the Post’s motion to seek “only

warrant materials related to the now-closed Campaign Finance Investigations.” Wash. Post I,

2016 WL 1604976, at *2 n.2. Consequently, the Court granted in part and denied in part the

Post’s motion, and directed the government to file copies of the relevant warrant materials, with

redactions to protect: “(1) the identities of uncharged third parties, (2) the identities and personal

identifiers of any confidential informants, and (3) any personal identifying or contact

information.” Id. at *3. Following an in camera review, and certain limited additional

redactions, the government released redacted versions of more than ninety documents, totaling

nearly 1000 pages, for public review on April 15, 2016. See Gov’t’s Final Redactions, ECF No.

18.

       While this action was pending, the sentencing of Thompson in the parallel criminal action

was approaching. In connection with that sentencing, the government, on May 26, 2016,

indicated its intention to submit a supplemental filing in the instant case that “may impact the

content of the parties’ memorand[a] in aid of sentencing and their respective allocutions at the

sentencing hearing.” Gov’t’s Consent Mot. Extend Time File Parties’ Mems. Aid Sentencing &

Cont. Sent. Hr’g at 3, United States v. Thompson, No. 14-cr-49 (CKK), ECF No. 54. The

government has since clarified that certain materials currently under seal describe aspects of

Thompson’s “substantial assistance that did not result in public charges.” Gov’t’s Mem. Aid

Sent. (“Gov’t’s Thompson Sent. Mem.”) at 16 n.8, United States v. Thompson, No. 14-cr-49

(CKK) (D.D.C. July 15, 2016), ECF No. 59. Specifically, the government explained that

“arguably impeaching evidence related to other alleged conduct” had been identified “that

potentially could have been used to undermine [Thompson’s] credibility as a trial witness.” Id.

at 18. While choosing not to sponsor Thompson as a trial witness, the government emphasized



                                                  4
that it was “unable to corroborate the most serious allegations related to [Thompson]’s other

conduct, [and therefore] declined to pursue criminal charges related to such conduct.” Id. at 18

n.9.

       On June 3, 2016, the government made a supplemental filing, under seal and ex parte, in

the instant case, which is now publicly available in redacted form. See Gov’t’s Suppl. Resp.

Post’s Mot. (“Gov’t’s Suppl.”), ECF No. 37-1. In this redacted filing, the government explains

that it has “completed its final witness interview” and “has declined to proceed with criminal

charges against any of the individuals involved” in certain unidentified investigations. Id. at 3.

Noting both this Court’s prior recognition of the important governmental and individual privacy

interests potentially harmed by the Post’s requested disclosure, as well as Thompson’s earlier

stated interest in maintaining records related to him under seal, the government explained that it

would be “impractical” to protect these interests through targeted redactions. Id. at 6.

       In response to the government’s supplemental filing, the Post filed its present request for

additional unsealing on June 15, 2016. See Post’s Suppl. The Post’s supplemental filing cites

the newspaper’s own recent reporting that, during its investigation of alleged campaign finance

violations, the USAO uncovered and investigated allegations concerning unrelated personal

conduct involving Thompson. Id. at 4–5. Specifically, the Post points to information, based on

“confidential and on-the-record sources,” that investigators pursued allegations regarding

Thompson’s sexual relationships, as well as efforts to conceal these relationships from the

public. Id. According to the Post’s reporting, the investigation of this separate personal conduct

ultimately influenced the USAO’s charging decisions in relation to the Campaign Finance

Investigation and, as such, was “plainly critical to the progress and outcome of” that

investigation. Id. at 5. The Post notes, however, that the search warrant materials unsealed



                                                 5
under the Court’s prior orders in this case “did not include any materials related” to any such

personal conduct investigations. Id.

       With the government’s revelation about “impeaching evidence related to other alleged

conduct” by Thompson, Gov’t’s Thompson Sent. Mem. at 18, the Post now clarifies that its

original motion sought not only warrant materials issued in connection with the Campaign

Finance Investigation, but also any such materials arising from “related” investigations involving

three individuals targeted by the USAO. Post’s Suppl. at 7. The Post acknowledges that it is

unaware of “the full scope of these ‘related investigations’ . . . , or whether those investigations

were formally concluded along with the [Campaign Finance Investigation].” Id. Nonetheless,

proceeding on the assumption that additional warrant materials falling within the scope of its

motion remain under seal, the Post now asserts the public’s right to access any such material.

The government responded to the Post’s supplemental filing on June 29, 2016, which response

has since been made publicly available in redacted form. See Gov’t’s Resp. Wash. Post’s Suppl.

Submission Supp. Post’s Mot., ECF No. 37-2.

       On July 19, 2016, the Court directed the government to provide, under seal, further

information regarding its efforts to notify any individuals whose interests may be harmed

through the additional disclosure sought by the Post, as well as any compelling interest that may

be harmed through such disclosure. Min. Order, dated July 19, 2016. In compliance with this

Order, the government submitted an additional sealed filing on July 26, 2016. See Gov’t’s

Notice of Filing, ECF No. 32; Gov’t’s Resp. Court’s July 19, 2016 Order (Sealed), ECF No. 36.

As with the government’s prior ex parte submissions, a redacted version of this most recent




                                                  6
response has since been filed on the public docket. See Min. Order, dated Aug. 2, 2016; Gov’t’s

Resp. Court’s July 19, 2016 Order, ECF No. 44.4

        Finally, after initially identifying himself as an “interested party” in this litigation in

March 2016, see Jeffrey E. Thompson’s Consent Mot. Enlargement Time File Opp’n, ECF No.

5, Thompson moved on August 3, 2016, for an order denying the Post’s present request for

disclosure of additional warrant materials, Mot. Deny Public Access Certain Ct. Recs.

(“Thompson Mot.”), ECF No. 45. In addition to “defer[ring] to,” but not “adopt[ing] the facts

which are alleged in the record of this matter,” Thompson explains that, in March 2012, federal

agents “executed search warrants in connection with” an unspecified investigation and seized

various items that included “more than twenty-three million pages of documents.” Id. at 3

(quoting In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013)). Contending that any public interest

in further disclosure “does not override his privacy and property rights,” Thompson joins the

government in opposing the unsealing of any additional warrant materials in this case. Id.

        In light of these filings, the Court allowed the Post to supplement its own prior

submissions in support of its request for further unsealing. Min. Order, dated Aug. 1, 2016. The

Post having done so, Suppl. Submission Supp. Post’s Mot. Opp’n Thompson Mot. (“Post’s

Suppl. Reply”), ECF No. 46, its request for additional disclosure in response to its motion is now

ripe for review.




4
         In order for the Court’s reasoning to be fully discussed here, portions of the filings cited herein are
unsealed, while the full documents remain sealed. See United States v. Reeves, 586 F.3d 20, 22 n.1 (D.C. Cir. 2009)
(unsealing the defendant’s presentence investigation report “to the limited extent referenced in [the] opinion,” but
maintaining that “the full document shall remain physically withheld from public review”) (citing United States v.
Parnell, 524 F.3d 166, 167 n.1 (2d Cir. 2008) (per curiam)).


                                                         7
II.      DISCUSSION

         The Post asserts two pertinent bases for seeking additional disclosure beyond that

provided in response to the Post’s initial motion. 5 First, the Post suggests that the Court

misinterpreted the scope of the Post’s original motion to encompass only those materials

stemming directly from the Campaign Finance Investigation. Post’s Suppl. at 7. Thus, the Post

now reiterates that it seeks “not only [w]arrant [m]aterials ‘issued in connection’ with the

[Campaign Finance Investigation], but also those issued in connection with ‘related

investigations into Mayor [Vincent] Gray, Jeffrey E. Thompson and Eugenia C. Harris.’” Id.

(emphasis in original) (quoting Post’s Mot. at 1); see also Post’s Suppl. Reply at 2 (“[T]he Post

renews its request for access to any additional sealed [w]arrant [m]aterials connected to the

investigations that the [g]overnment has now confirmed are complete.”).

         Second, supposing that the government opposes disclosure of any additional warrant

materials “because of the private nature of the facts being investigated,” the Post argues that

“such privacy interests can be adequately addressed by redaction of names and identifying

information about confidential informants.” Post’s Suppl. at 9 (citing In re Application of New

York Times Co. for Access to Certain Sealed Court Records (“In re New York Times”), 585 F.

Supp. 2d 83, 91 (D.D.C. 2008)); Post’s Suppl. Reply at 2–3. Further, the Post argues that “any

privacy interests Thompson retains in the sealed materials is diminished by the fact that he has

been charged with (and pleaded guilty to) the crimes that were investigated in the” Campaign

Finance Investigation. Post’s Suppl. Reply at 3. For this reason, the Post argues that the public’s




5
          While the Post also argues that the public enjoys a constitutional right of access to search warrants during
the pendency of an investigation and regardless of whether an investigation has been formally closed, Post’s Suppl.
at 7–8, this Court need not opine about this particular circumstance since the government has made clear that the
unrelated investigations at issue in the Post’s supplemental motion are closed, see Gov’t’s Thompson Sent. Mem. at
18; Gov’t’s Suppl. at 3; Post’s Suppl. Reply at 2.

                                                          8
interest in learning additional information regarding individuals targeted in the Campaign

Finance Investigation outweighs any remaining interests in continued closure of relevant warrant

materials. Id. at 3–4.

       Following a summary of the legal framework guiding the Court’s analysis, these asserted

grounds for additional disclosure under either the First Amendment or the common law will be

considered in turn.

       A.      APPLICABLE LEGAL PRINCIPLES

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

the common law and the First Amendment,” In re Fort Totten Metrorail Cases, 960 F. Supp. 2d

2, 5 (D.D.C. 2013) (citing United States v. El-Sayegh, 131 F.3d 158, 160–61 (D.C. Cir. 1997)),

each of which is examined below.

               1.        First Amendment Right of Public Access to Judicial Proceedings

       The First Amendment guarantees a qualified right of public access to criminal

proceedings and related court documents. Globe Newspaper Co. v. Superior Court for Norfolk

Cty., 457 U.S. 596, 603–04 (1982). Bolstered by the Sixth Amendment’s express right for a

“public trial” in “all criminal prosecutions,” U.S. CONST. amend. VI, public access to criminal

trials forms the core of this First Amendment constitutional right, see Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555, 575 (1980) (explaining that “it would be difficult to single out any

aspect of government of higher concern and importance to the people than the manner in which

criminal trials are conducted”). A similar right of access has been found to arise wherever “(i)

there is an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a

significant positive role in the functioning of the proceeding.” United States v. Brice, 649 F.3d

793, 795 (D.C. Cir. 2011) (quoting Richmond Newspapers, 448 U.S. at 573); see also Wash. Post



                                                 9
v. Robinson, 935 F.2d 282, 287–288 (D.C. Cir. 1991). Under this so-called “‘experience and

logic’ test,” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934 (D.C. Cir.

2003), “both these questions must be answered affirmatively before a constitutional requirement

of access” attaches, In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C.

Cir. 1985). Applying this standard, the Supreme Court has recognized a First Amendment right

of access to criminal trials, voir dire proceedings, and preliminary hearings, while the D.C.

Circuit has extended such a right to completedbut not unconsummatedplea agreements. See

Brice, 649 F.3d at 795–96 (citing authorities).

        Even where the First Amendment provides a right of public access, however, this right is

“‘qualified’ and is not absolute.” In re New York Times, 585 F. Supp. 2d at 90; see also Brice,

649 F.3d at 795. In particular, the presumption of public access may be overridden upon a

showing by the government that “(1) closure serves a compelling interest; (2) there is a

substantial probability that, in the absence of closure, this compelling interest would be harmed;

and (3) there are no alternatives to closure that would adequately protect the compelling

interest.” Brice, 649 F.3d at 796 (quoting Wash. Post, 935 F.2d at 290). Thus, for example, the

D.C. Circuit has held that documents underlying material witness warrants in a prosecution for

sexual abuse, which contained “intensely private and painful information about [two juvenile

victims’] medical and mental health issues,” may be withheld under the First Amendment on the

ground that disclosure, even with redaction of the witnesses’ names, would “entail a grotesque

invasion of the victims’ privacy.” Brice, 649 F.3d at 795, 797. 6




6
         The Circuit assumed, without deciding, that the First Amendment guarantees a public right of access to
material witness proceedings. Brice, 649 F.3d at 796.

                                                        10
               2.      Common Law Right of Access to Public Records

       In addition to the right of access guaranteed by the First Amendment, the D.C. Circuit has

recognized a “broader, but weaker, common law right” of access to public records, including

certain “judicial records.” El-Sayegh, 131 F.3d at 160 (D.C. Cir. 1997) (citing Wash. Legal

Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 898 (D.C. Cir. 1996)). Much like the First

Amendment analysis described above, “the decision whether a document must be disclosed

pursuant to the common law right of access involves a two-step inquiry.” Wash. Legal Found.,

89 F.3d at 902. First, the court “must decide whether the document sought is a ‘public record,’”

id. (internal quotation mark omitted), with a document’s status as a covered “judicial record”

dependent on “the role it plays in the adjudicatory process.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3

(D.C. Cir. 2013) (explaining that the common law protects the public’s right to inspect and copy

“those ‘government documents created and kept for the purpose of memorializing or recording

an official action, decision, statement, or other matter of legal significance, broadly conceived’”

(quoting Wash. Legal Found., 89 F.3d at 905)).

       Like the First Amendment, however, the common law provides only a qualified right of

public access to covered judicial records. Thus, to determine whether a covered judicial record

must be disclosed, the court must “balance the government’s interest in keeping the document

secret against the public’s interest in disclosure.” Wash. Legal Found., 89 F.3d at 902. While

the “starting point” of this analysis is the “strong presumption in favor of public access to

judicial proceedings,” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996),

the D.C. Circuit has identified six factors in determining whether disclosure is compelled under

the common law: “(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,



                                                 11
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,” id. (citing United States v.

Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980)).

       B.      THE POST’S REQUEST FOR ADDITIONAL DISCLOSURE IS DENIED

       By its nature, the Post’s request for access to materials currently under seal addresses

sensitive information not previously disclosed to the broader public. As a result, the parties’

submissions necessarily leave some ambiguity as to the precise contours of the parties’

arguments for and against additional disclosure in this case.

       Nonetheless, based on the portions of these filings that have been made publicly

available, the Post’s present request centers on search warrants issued in connection with the

investigation of Thompson’s personal conduct unrelated to the activities at issue in the Campaign

Finance Investigation. For its part, the Post has consistently asserted an interest in public

disclosure of warrant materials related to any such investigation on the theory that evidence

uncovered elsewhere influenced the course of the Campaign Finance Investigation. Post’s

Suppl. at 2; Post’s Suppl. Reply at 3–4. The government has acknowledged both here and in

Thompson’s sentencing proceedings that it investigated alleged conduct involving Thompson

before ultimately declining to pursue any charges against individuals implicated in this separate

investigation. Gov’t’s Thompson Sent. Mem. at 18 & n.9; Gov’t’s Suppl. at 3, 6. Finally,

Thompson himself has indicated that investigators executed an unspecified number of search

warrants on his property in March 2012. Thompson Mot. at 3.

       Since the Court’s prior decision in this case addressed only those warrants that were

issued in furtherance of the Campaign Finance Investigation itself, which resulted in public



                                                 12
indictments and successful prosecutions of a number of individuals, the Court did not have

occasion to consider whether public access to such materials stemming from any separate

investigations into unrelated, uncharged personal conduct is guaranteed under either the First

Amendment or the common law. With this issue now squarely before the Court, the Post’s

asserted bases for additional disclosure in this case are now each considered in turn.

               1.      Warrants Issued in Connection with Separate Investigations Fall
                       Outside the Scope of the Court’s Initial Order

        In seeking additional disclosure, the Post does not suggest that the government has failed

to disclose warrant materials issued in connection with the Campaign Finance Investigation per

se. Instead, the Post seeks disclosure of warrant materials issued in separate investigations

involving Thompson that it considers “related to” the Campaign Finance Investigation. Post’s

Suppl. at 6–7 (emphasis added). As noted, the government has acknowledged the existence of

“arguably impeaching evidence related to other alleged conduct . . . that potentially could have

been used to undermine [Thompson’s] credibility as a trial witness.” Gov’t’s Thompson Sent.

Mem. at 18. Positing that this evidence was “plainly critical to the progress and outcome of the”

Campaign Finance Investigation, the Post argues that the public maintains a manifest interest in

disclosure of the details of any separate investigations involving Thompson. Post’s Suppl. at 5.

Thus, the Post asserts an interest in examining the details of any separate investigation to better

understand and assess the USAO’s decision-making in the Campaign Finance Investigation. Id.

at 7.

        To a degree, the Post’s contention that evidence uncovered through other investigations

involving Thompson influenced the course and outcome of the Campaign Finance Investigation

finds some support in the government’s public filings. Indeed, the government has

acknowledged publicly that it uncovered evidence related to alleged conduct unrelated to the

                                                 13
political activities at issue in the Campaign Finance Investigation that the government viewed as

affecting Thompson’s credibility as a trial witness. Gov’t’s Thompson Sent. Mem. at 18. At the

same time, however, the government has indicated that Thompson provided substantial

assistance to authorities in numerous successful prosecutions arising from the Campaign Finance

Investigation. Id. at 16–17. In any event, even assuming that evidence obtained through

separate investigations influenced the ultimate resolution of the Campaign Finance Investigation,

the Post’s suggestion that the public thus maintains an equivalent interest in the details of these

unrelated investigations is unpersuasive.

       In describing the public’s interest in the Campaign Finance Investigation, the Post

explained that its requested disclosure “will help shed significant light on a lengthy series of

highly public investigations that had significant, direct impact on D.C. politics, and will provide

the public with valuable insight into how the USAO carried out its responsibilities to investigate

these critical issues.” Post’s Mem. at 9. In so doing, the Post emphasized that the Campaign

Finance Investigation “implicated the highest levels of government in the city” and “concerned

issues at the very core of the First Amendment—the integrity of the city’s elections and its public

officials.” Id. at 2, 22. Recognizing these important considerations, as well as the limited

interest in continued closure given the public prosecutions concluding that long-term

investigation, the government conceded that “maintaining blanket secrecy on the specific records

sought from the Campaign Finance Investigation is not necessary.” Wash. Post I, 2016 WL

1604976, at *2.

       By contrast, the materials the Post now seeks to unseal stem not from the public

investigation and prosecution of prominent local elected officials and mayoral candidates, but

from undisclosed and uncharged allegations levied against private citizens. While the Post



                                                 14
would portray these unrelated allegations as inexorably linked to the Campaign Finance

Investigation, see Post’s Suppl. at 7, any such link is essentially incidental. Indeed, the

disclosure the Post seeks would provide, at best, limited additional information regarding the

course and resolution of the Campaign Finance Investigation. At the same time, as discussed

below, infra Parts II.B.2.b, II.B.2.c, the Post’s present request implicates important individual

and law enforcement interests not previously at issue in this case. For this reason, to determine

whether any additional unsealing is warranted, the Court must consider whether the disclosure

the Post now seeks is guaranteed under either the Constitution or the common law.

               2.      No Further Disclosure is Warranted under the First Amendment

         In disposing of the Post’s initial motion, the Court held that the First Amendment

protects public access to warrant materials associated with searches conducted during the course

of the now-closed Campaign Finance Investigation. Wash. Post I, 2016 WL 1604976, at *2.

With the Post now seeking disclosure of similar materials stemming from any other, unrelated

investigations, the Court must now consider whether the additional disclosure the Post seeks is

similarly warranted. As explained below, in contrast to the materials previously unsealed in this

case, the warrant materials remaining under seal implicate compelling individual and law

enforcement interests that outweigh any public interest in further disclosure.

                       a)      Prior Ruling Regarding Campaign Finance Investigation Material

       With limited binding precedent on this issue, the Court’s prior consideration of the Post’s

asserted right of access to post-investigation search warrant materials drew largely on the

thorough reasoning set out by former Chief Judge Royce Lamberth in In re Application of New

York Times Co. for Access to Certain Sealed Court Records (“In re New York Times”), 585 F.

Supp. 2d 83 (D.D.C. 2008). As here, the In re New York Times Court considered the request by



                                                 15
a national newspaper to unseal search warrant materials arising out of a high-profile criminal

investigation in the District of Columbia. Id. at 86–87. Specifically, the New York Times (the

“Times”) sought access, under both the First Amendment and the common law, to warrant

materials related to the search of property owned by an individual identified as a “person of

interest” in the criminal investigation of the mailing of anthrax to members of Congress and the

media soon after the September 11, 2001 terrorist attacks. Id. While this individual was

eventually cleared of any wrongdoing, the search of his property was widely known after it “was

covered as a live media event with helicopter footage of the search in progress.” Id. Such was

the public’s interest in the matter that, even after the suicide of the government’s sole suspect in

the case and the government’s decision to formally close the investigation, the Times sought

access to various warrants that had not been disclosed to the public. Id.

       Applying the “experience and logic” test described above, the In re New York Times

Court held that the First Amendment provides a right of public access to post-investigation

warrant materials. See id. at 88–90. In reaching this conclusion, the court observed that “post-

investigation warrant materials . . . have historically been available to the public,” and that

“warrant applications and receipts are routinely filed with the clerk of court without seal.” Id. at

88 (citing FED. R. CRIM. P. 41(i), among other authorities). Further, the court emphasized that

public access to such materials plays a “significant positive role in the functioning of the

criminal justice system, at least at the post-investigation stage,” with disclosure serving “as a

check on the judiciary because the public can ensure that judges are not merely serving as a

rubber stamp for the police.” Id. at 90 (citing authorities).

       Reviewing this non-binding authority, this Court agreed that the First Amendment

provides a qualified right of access to warrants issued in connection with the closed Campaign



                                                 16
Finance Investigation. Wash. Post I, 2016 WL 1604976, at *2. Having concluded that a

constitutional right of access attached to these materials, the Court further considered whether a

compelling interest necessarily would be harmed by their disclosure. Id. Observing that the

Campaign Finance Investigation is “now closed, and the prosecutions arising from this

investigation widely known,” the Court found no compelling privacy, reputational or law

enforcement interest would be adversely affected by the requested disclosure, since any

remaining privacy interests could be sufficiently protected through appropriate redactions. Id. 7

        The Post would now extend this prior holding to allow for public access to all warrants

issued in connection with any now-closed investigations involving Thompson and others that are

“related” to the Campaign Finance Investigation. In the Post’s view, “under this Court’s prior

orders in this case, the Post and the public have a qualified right under the First Amendment to

access court records associated with searches in furtherance of [these] now closed

investigations.” Post’s Suppl. Reply at 2. As explained below, however, this attempt to

generalize the Court’s narrow holding in resolving the Post’s original motion overlooks

important individual and law enforcement interests that distinguish the Post’s present request

from the disclosure already granted in this case.

                          b)       Compelling Individual Interests

        The Post’s present effort to obtain access to warrants issued in previously undisclosed

investigations involving Thompson and others directly impacts three distinct, yet overlapping

individual interests. First, the 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. Second, the substance of the allegations of criminal conduct may reveal details about


7       Indeed, the government conceded that full sealing of the warrants underlying that investigation was no
longer warranted. Wash. Post I, 2016 WL 1604976, at *2 (citing Govt.’s Resp. at 7).

                                                        17
otherwise private activities that significantly implicate an individual’s privacy interests,

particularly when those allegations touch on intimate or otherwise salacious details of private

affairs. Finally, where, as here, a criminal investigation does not result in an indictment or other

prosecution, a due process interest arises from an individual being accused of a crime without

being provided a forum in which to refute the government’s accusations.

       Recognizing these compelling interests, the public’s First Amendment right of access

does not automatically attach to search warrants issued in any closed criminal investigations.

Most notably, contrary to the Post’s broad conception of its right to review post-investigation

warrant materials in this case, courts have been reluctant to recognize even a qualified public

right to access to such materials where, as here, an investigation concludes without indictment.

See, e.g., United States v. All Funds on Deposit at Wells Fargo Bank in San Francisco,

California, in Account No. 7986104185, Held in the Name of Account Servs. Inc., & All Prop.

Traceable Thereto, 643 F. Supp. 2d 577, 583 (S.D.N.Y. 2009) (explaining that, where the only

proceedings “bearing any connection” to sealed warrant materials were the “application

proceedings in connection with which the warrants were issued,” the “‘experience’ prong of the

experience and logic test does not support” a First Amendment right of access). Indeed, without

an indictment, even a “closed” investigation is more analogous to a federal grand jury

proceeding, to which no public right of access attaches, than the sort of public criminal

proceeding that lies at the core of the First Amendment.

       Unlike criminal trials, grand jury proceedings are presumptively secret. Given the

potential for evidence presented to a grand jury to cause serious harm to a person’s privacy and

due process interests, the Federal Rules of Criminal Procedure ensure that such proceedings

remain closed. Rule 6(e) strictly prohibits public disclosure of any “matter[s] occurring before



                                                 18
[a] grand jury,” FED. R. CRIM. P. 6(e)(2), with similar protections afforded to “[r]ecords, orders,

and subpoenas relating to grand-jury proceedings,” FED. R. CRIM. P. 6(e)(6). Thus, even where

an investigation has concluded, grand jury proceedings generally remain secret in order to

“ensure that ‘persons who are accused but exonerated by the grand jury will not be held up to

public ridicule.’” In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007)

(quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)). Recognizing the

important individual interests protected by grand jury secrecy, the Circuit has held that,

“[a]lthough public access plays an important role in other aspects of the judicial process, ‘there is

no First Amendment right of access to grand jury proceedings,’ nor do First Amendment

protections extend to ancillary materials dealing with grand jury matters.” Id. (quoting In re

Motions of Dow Jones & Co., 142 F.3d 496, 499, 502 (D.C. Cir. 1998)).

       Much the same, the compelling interests protected by grand jury secrecy are apparent in

other settings in which disclosure is sought of materials regarding a criminal investigation and

the individuals involved, where the investigation did not result in a successful prosecution. For

example, in the context of litigation over the proper scope of disclosure under the Freedom of

Information Act, 5 U.S.C. § 552, the D.C. Circuit has identified the individual “privacy interests

at stake” for persons subject to criminal investigations, including “avoiding the stigma of having

[the subject’s] name associated with a criminal investigation” and “keeping secret the fact that

they were subjects of a law enforcement investigation,” as well as “a second, distinct privacy

interest in the contents of the investigative files.” Citizens for Responsibility & Ethics in Wash.

v. U.S. Dep’t of Justice, 746 F.3d 1082, 1091–92 (D.C. Cir. 2014) (emphasis omitted). These

substantial privacy and reputational interests extend to the target or subject of the criminal

investigation as well as to third parties who may be mentioned or somehow involved in the



                                                 19
investigation. Id. at 1092 n.3; see also Hodge v. FBI, 703 F.3d 575, 580–81 (D.C. Cir. 2013)

(“[W]e have recognized that private citizens—such as witnesses, informants, and suspects—have

particularly strong privacy interests.”); Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984)

(“[I]ndividuals have a strong interest in not being associated unwarrantedly with alleged criminal

activity.”); Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 864

(D.C. Cir. 1981) (“There can be no clearer example of an unwarranted invasion of personal

privacy than to release to the public that another individual was the subject of an FBI

investigation.” (quoting Baez v. U.S. Dep’t of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980))).

The D.C. Circuit has clearly expressed its view that “defendants whose prosecutions ended in

acquittal or dismissal have a much stronger privacy interest in controlling information

concerning those prosecutions than defendants who were ultimately convicted,” noting that

“[t]he presumption of innocence stands as one of the most fundamental principles of our system

of criminal justice: defendants are considered innocent unless and until the prosecution proves

their guilt beyond a reasonable doubt.” ACLU v. U.S. Dep’t of Justice, 750 F.3d 927, 933 (D.C.

Cir. 2014).

       Moreover, as a general matter, “[t]he Due Process Clause of the Fifth Amendment

protects an individual from governmental accusations of criminal misconduct without providing

a proper forum for vindication.” Doe v. Hammond, 502 F. Supp. 2d 94, 101 (D.D.C. 2007)

(citing authorities). While this protection has been recognized most often in the context of

individuals named as unindicted co-conspirators in an indictment, this protection “extends to

other criminal accusations made by a government attorney, including accusations in factual

proffers and other court memoranda.” Id. at 102 (recognizing this broader interest, but

explaining that exclusion from the immunity provision of a criminal plea agreement does not



                                                20
constitute an accusation (citing United States v. Crompton Corp., 399 F. Supp. 2d 1047, 1049

(N.D. Cal. 2005))); see also In re Interested Party 1, 530 F. Supp. 2d 136, 144 (D.D.C. 2008)

(same); United States v. Korean Air Lines Co., 505 F. Supp. 2d 91, 96 (D.D.C. 2007) (same).

       Federal prosecutors are entrusted with broad authority to compel production of

information and formally accuse an individual of criminal wrongdoing. Mindful of the attendant

risks associated with the misapplicationwhether intentional or inadvertentof this powerful

authority, courts have consistently warned against “the unfairness of being stigmatized from

sensationalized and potentially out-of-context insinuations of wrongdoing,” particularly where

individuals lack the opportunity “to clear their names at trial.” United States v. Smith, 985 F.

Supp. 2d 506, 526 (S.D.N.Y. 2013); see also Certain Interested Individuals, John Does I-V, Who

Are Employees of McDonnell Douglas Corp. v. Pulitzer Pub. Co., 895 F.2d 460, 467 (8th Cir.

1990) (“Disclosure [of search warrant materials, which included descriptions of intercepted

communications involving unindicted individuals,] would place those individuals in essentially

the same precarious position as unindicted co-conspirators.”); United States v. Smith, 776 F.2d

1104, 1113–14 (3d Cir. 1985) (explaining that inclusion, in a bill of particulars, of names of

unindicted individuals who prosecutors contended “could conceivably be considered as

unindicted co-conspirators” constituted a “predictable injur[y] to the reputations of the named

individuals [that was] likely to be irreparable”); In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981)

(explaining that “no legitimate governmental interests could be served by stigmatizing private

citizens as criminals while not naming them as defendants” (citing United States v. Briggs, 514

F.2d 794, 805, 802 & n.13 (5th Cir. 1975))). But see United States v. Kott, 380 F. Supp. 2d

1122, 1125 (C.D. Cal. 2004), aff’d, 135 F. App’x 69 (9th Cir. 2005) (finding the “danger of

unfounded character assassination in [the search warrant] context [in]sufficient to constitute a


                                                 21
compelling governmental interest in maintaining the secrecy of the [warrant materials]”).

Echoing these consistent admonitions from the courts, the United States Attorneys’ Manual

pointedly notes that “there is ordinarily no legitimate governmental interest served by the

government[]” leveling a public allegation of wrongdoing against an uncharged party, and “this

is true regardless of what criminal charges may be contemplated by the Assistant United States

Attorney against the third-party for the future.” USAM § 9–27.760 (internal quotation marks

and citation omitted).

         Indeed, the recognition of these compelling individual interests animates the requirement

that prosecutors bring allegations of wrongdoing exclusively through the criminal justice system,

where these interests are protected by means of grand jury secrecy and other constitutional

safeguards. For this reason, the possibility of improper disclosure is particularly troubling where

a law-enforcement investigation is closed without even the submission of evidence to a grand

jury. 8 As the Eight Circuit has explained:

         [W]here no indictments have issued against persons allegedly involved in criminal
         activity, there is a clear suggestion that, whatever their truth, the Government
         cannot prove these allegations. The court of public opinion is not the place to seek
         to prove them. If the Government has such proof, it should be submitted to a grand
         jury, an institution developed to protect all citizens from unfounded charges. All
         citizens, whatever their real or imagined past history, are entitled to the protection
         of a grand jury proceeding.

Certain Interested Individuals, 895 F.2d at 466–67; see also Smith, 985 F. Supp. 2d at 526

(same, quoting Certain Interested Individuals). In this sense, disclosure of investigatory

materials that have not been submitted to a grand jury or otherwise resulted in public criminal




8
          Although the parties’ submissions on this point are less than clear, Thompson’s citation to In re Sealed
Case, 716 F.3d 603 (D.C. Cir. 2013) in describing the warrants at issue here, see Thompson Mot. at 3–4, suggests
that certain evidence obtained through these warrants was submitted to one or more grand juries. While heavily
redacted, the D.C. Circuit’s decision in that case makes clear that the warrants under consideration there were
“executed . . . as part of a grand jury investigation.” In re Sealed Case, 716 F.3d at 604.

                                                         22
charges potentially deprives accused individuals of even the most basic protections of our

criminal justice system and risks irreparably damaging the reputations and privacy of

presumptively innocent citizens. See ACLU, 750 F.3d at 934–935 (“[D]efendants [who] have

been acquitted or had the relevant charges dismissed . . . have a significant and justified interest

in avoiding additional and unnecessary publicity. For example, someone who had been acquitted

of accounting fraud after a full and fair trial, moved on with his life, and started a family might

be especially dismayed were his neighbors, friends, and family to learn about his previous

prosecution due to the publicity associated with the release of the requested information.”).

       In this light, the Post’s present request is distinguishable from its original request in a

number of important respects. First, as the Post emphasizes, the USAO conducted the Campaign

Finance Investigation largely in public view, with prosecutors openly announcing their intention

to investigate allegations of illegal fundraising tied to the 2010 mayoral campaign in early 2011.

Post’s Mem. at 4. As a result, many of the allegations levied against the public officials targeted

by investigators were widely known even before these individuals were indicted, with some of

the physical searches giving rise to the sought-after warrants in this case widely reported in the

media. Id. In fact, the Post itself notes that the then-U.S. Attorney for the District of Columbia

publicly discussed the impact of the ongoing investigation on the then-Mayor’s reelection

campaign in the spring of 2014. Id. at 5. In this way, the Campaign Finance Investigation giving

rise to the released warrant materials closely resembled the investigation at issue in In re New

York Times. In both cases, unsealed warrant materials stemmed from a publicly acknowledged

investigation of widely known allegations of misconduct, significantly minimizing the risk that

the requested disclosure would raise new privacy and reputational concerns.




                                                 23
       By contrast, the Post now seeks access to materials arising from investigations that have

not been publicly discussed and involve presumptively innocent conduct bearing no relationship

to the wrongdoing at issue in the Campaign Finance Investigation. Exposure of previously

unacknowledged allegations, which resulted in no criminal charges, thus more readily raises the

significant possibility of “stigmatizing private citizens as criminals while not naming them as

defendants.” In re Smith, 656 F.2d at 1106. As such, the Post’s contention that these separate

investigations influenced the course and outcome of the Campaign Finance Investigation, Post’s

Suppl. at 4–5, is of no moment. The mere fact that these separate investigations coincided with

the Campaign Finance Investigation, and may even have affected the course and resolution of

that investigation, has no bearing on the reputational and due process interests at stake in the

requested disclosure. Accord Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir.

1989) (denying access to search warrant materials while an investigation is ongoing and

explaining that “persons named in [search] warrant papers will have no forum in which to

exonerate themselves if the warrant materials are made public before indictments are returned”).

       Second, compelling personal privacy interests implicated by the Post’s present request

militate strongly against additional disclosure in this case. Importantly, the Post’s present

request is not limited to the unsealing of information confirming that searches were conducted

during the course of the separate Thompson investigation. Instead, the Post seeks access to

“applications, supporting affidavits, court orders, and returns” associated with any such warrants.

Post’s Mot. at 1. While a warrant itself conveys relatively few details regarding an alleged

crime, these supporting materials include detailed information regarding the government’s basis




                                                 24
for concluding that a crime has been committed and that evidence of that crime will be

discovered in a specified location. 9

        As the government notes, the Post has reported that “prosecutors also conducted

interviews about money and gifts Thompson gave young men, and about whether he did so to

hide sexual relationships.” Gov’t’s Resp. Court’s July 19, 2016 Order at 11 n.5 (quoting Ann E.

Marimow, Case Against Ex-D.C. Mayor Gray Stalled over Claims Key Witness Had Credibility

Issue, WASH. POST (Apr. 14, 2016), https://www.washingtonpost.com/local/public-safety/case-

against-ex-dc-mayor-gray-stalled-over-claims-key-witness-had-credibility-issue/2016/04/14/

1f20553e-018f-11e6-9203-7b8670959b88_story.html). Assuming this report to be accurate, the

D.C. Circuit and the Supreme Court have long recognized the compelling individual privacy

interest in maintaining as secret such sensitive personal information. See Press-Enter. Co. v.

Superior Court of California, 464 U.S. 501, 511 (1984) (recognizing as a “compelling interest”

maintaining as private “deeply personal matters that [a] person has legitimate reasons for

keeping out of the public domain”); Hubbard, 650 F.2d at 324 (recognizing the “[v]alid privacy

interest[] . . . in documents which reveal the intimate details of individual lives, sexual or

otherwise, whether or not they concern innocent third parties” (internal quotation marks and

footnote omitted)).

        The Post relies on non-binding, out-of-circuit authority to contend that “general ‘privacy

and reputational concerns typically don’t provide sufficient reason to overcome a qualified First

Amendment right of access,’” Post’s Suppl. Reply at 3 (quoting United States v. Loughner, 769




9
         For example, compare the earliest-issued warrant already released in this case, Search and Seizure Warrant,
USA v. Dell Laptop Computer [Redacted] and Blackberry Bold 9700 [Redacted], 12-mj-179 (Feb. 28, 2012), ECF
No. 6-6, with the affidavit supporting the government’s application for that warrant, Gov’t’s Aff. Supp. App. Under
Rule 41 for Warrant Search and Seize, USA v. Dell Laptop Computer [Redacted] and Blackberry Bold 9700
[Redacted], 12-mj-179 (Feb. 28, 2012), ECF No. 6-2.

                                                        25
F. Supp. 2d 1188, 1196 (D. Ariz. 2011)); see also In re New York Times, 585 F. Supp. 2d at 93

n.14 (“[C]ourts that have identified legally cognizable privacy interests have done so with more

specificity than a blanket statement that one has a right to get on with his life.”). Here, however,

the disclosure envisioned by the Post highlights specific reputational and privacy interests. In

fact, far from contesting the government’s characterization of these materials, the Post itself

asserts that the materials remaining under seal likely would address intimate personal details

regarding Thompson’s sexual preferences and partners. Post’s Suppl. at 4–5. Moreover, the

Post’s reporting suggests that Thompson actively sought to ensure that this information remained

private. Id.

       In addition to Thompson, as instructed by the Court, the USAO took steps to “notify any

individuals whose privacy interests may be implicated through the additional disclosure”

requested by the Post. Min. Order, dated July 19, 2016. In response, the government represents

that it has notified individuals potentially affected by the Post’s present request in order to

explain the content of the Post’s request and provide context as to the interests at stake. Gov’t’s

Resp. Court’s July 19, 2016 Order (Sealed) at 5–6. Unsurprisingly, those individuals contacted

by the USAO echoed the concerns raised by the government in contesting the Post’s motion and

joined the government in opposing any further unsealing in this case. Id.

       In sum, absent prior public disclosure of the details of these separate investigations,

revelation of presumptively innocent conduct would constitute a serious invasion of the personal

privacy of any individuals identified in any such materials, as well as their reputational and due

process interests. Accord Brice, 649 F.3d at 797 (holding that revealing “private and painful”

information regarding then-juvenile victims’ physical and mental health could constitute a

“grotesque invasion of the victims’ privacy”).



                                                  26
                       c)     Compelling Law Enforcement Interests

       Finally, beyond these important individual privacy, reputational, and due process

interests, compelling law enforcement interests likewise weigh against disclosure of search

warrant materials not yet made public in this case.

       Specifically, as explained above, supra Part I, Thompson provided substantial assistance

to prosecutors in the Campaign Finance Investigation, including assisting in the investigation and

prosecution of eight other targets of that investigation. Gov’t’s Thompson Sent. Mem. at 16–18.

For obvious reasons, ensuring that investigators are able 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. Such is the significance of this

interest that, where an informant has not already been identified, the government is generally

permitted “to withhold from disclosure the identity of persons who furnish information of

violations of law to officers charged with enforcement of that law.” Smith v. Lanier, 726 F.3d

166, 167 (D.C. Cir. 2013) (quoting Roviaro v. United States, 353 U.S. 53, 59 (1957)); see also

Roviaro, 353 U.S. at 59 (noting this interest in preserving witness anonymity “recognizes the

obligation of citizens to communicate their knowledge of the commission of crimes to law-

enforcement officials and, by preserving their anonymity, encourages them to perform that

obligation”). While Thompson’s identity and assistance to the USAO has now been publicly

acknowledged, the government’s interest in preserving its ability to work with witnesses to

obtain information regarding suspected crimes is directly implicated by the Post’s request for

additional disclosure in this case. Indeed, much as anonymity serves to ensure potential

witnesses are free to provide information without fear of reprisal, preserving as secret intimate




                                                27
details of an individual’s personal life and conduct helps to ensure that witnesses are willing to

step forward to assist important criminal investigations.

        The Post’s present request, however, turns this basic intuition on its head. In the Post’s

view, it is precisely because an individual may serve as a witness against a high-profile

defendant that the public maintains an interest in other, unrelated investigations that may have a

bearing on that witness’s credibility. The Court recognizes the significant public interest

generated by the Post’s reporting in this case, which the Post correctly notes touches on matters

of significant public concern. Nonetheless, the notion that, by assisting investigators and

agreeing to serving as a potential witness in a high-profile criminal investigation, an individual’s

intimate life and unrelated personal conduct become fodder for public inspection is simply

inconsistent with the government’s recognized interest in preserving its ability to work with the

public to root out criminal behavior.

                       d)      Redactions Would Not Sufficiently Protect Compelling Interests

        Finally, due to the degree of media scrutiny already garnered by the instant action, the

government asserts that “the public will be able to easily determine the names and identities of

the persons referenced in the requested documents,” and that even “limited redactions would

invite conjecture and speculation about the involvement by the affected persons or others in the

allegations discussed in the requested materials.” Gov’t’s Resp. Court’s July 19, 2016 Order

(Sealed) at 13, 15. As a result, the Court concludes redaction of the requested materials is

insufficient to protect adequately the compelling privacy, reputational, and due process interests

identified by the government and Thompson, and, consequently, full closure of the sealed

warrant materials sought by the Post is the least restrictive means of protecting these compelling

interests.



                                                 28
                                    *            *               *

        In short, the Post’s effort to obtain additional disclosure by means of its acknowledged

right of access to search warrants issued under the Campaign Finance Investigation amounts to

little more than bootstrapping. Even assuming the public maintains a First Amendment right to

search warrants issued in closed, non-public investigations, the Post’s submissions in support of

its request for further disclosure readily demonstrate that any additional unsealing likely would

significantly infringe upon the personal due process, reputational, and privacy interests of

individuals implicated in those materials and would likewise raise the substantial probability of

harming important law enforcement interests.

        Accordingly, the Post’s request, pursuant to the First Amendment, to unseal any post-

investigation warrant materials not previously disclosed is denied. Accord Redacted Mem. Op.,

United States v. Thompson, No. 14-cr-49 (CKK), ECF No. 66 (concluding that, while the First

Amendment provides a qualified right of access to sentencing materials, the government has

demonstrated a compelling interest in sealing materials, like the warrant materials at issue here,

“outlining areas of [Thompson’s] substantial assistance that did not result in public charges”).

                3.         No Further Disclosure is Warranted under the Common Law

        Having concluded that the First Amendment compels no additional disclosure in response

to the Post’s motion, the Court turns next to the Post’s suggestion that the unsealing of search

warrant materials it seeks is guaranteed under the weaker common law right of access to judicial

records. As before, while a common law right of access attaches to the post-investigation

warrant materials the Post seeks, the compelling privacy, reputational, due process, and law

enforcement interests identified above easily offset any limited public interest in additional

disclosure in this case.



                                                 29
         The D.C. Circuit has not addressed the degree to which the common law provides a

qualified right of access to search warrant materials either before or after an investigation has

concluded. A number of other Circuits, however, have recognized such a right, subject to the

weighing of interests described above, to warrant materials after an investigation has concluded.

See United States v. Bus. of Custer Battlefield Museum & Store Located at Interstate 90, Exit

514, S. of Billings, Mont. (“Custer Battlefield Museum”), 658 F.3d 1188, 1192 (9th Cir. 2011)

(citing authorities from the Second, Fourth, Seventh, and Eighth Circuits). Upon consideration

of these authorities, the Court agrees that “[a]ffidavits in support of seizure or search warrants

are central to a court’s probable cause determination,” and, therefore, “clearly fall within the

definition of ‘judicial documents.’” Id. at 1193 (internal quotation marks omitted) (quoting All

Funds on Deposit at Wells Fargo, 643 F. Supp. 2d at 583). Thus, at least where an investigation

has concluded, a common law right of public access generally attaches to such materials. 10

Nonetheless, for the reasons articulated above, compelling privacy and due process interests of

persons who have not been charged outweigh any limited public interest in further disclosure in

this case.

         Here, all but one of the factors identified by the D.C. Circuit in considering the public’s

common law right of access to judicial records point strongly in favor of continued sealing of

warrant materials in this case. Most significantly, as previously noted, supra Part II.B.2.b, the

Post itself asserts that the materials it seeks to unseal touch upon highly intimate personal details,


10
          For its part, the Post relies on non-binding authority in this Circuit to contend that “the status of the
investigation is simply one factor to be weighed in the court’s discretionary determination whether the common law
right of access mandates disclosure of particular records.” Post’s Suppl. at 8 (citing In re New York Times, 585 F.
Supp. 2d at 92–93). Other courts, however, have categorically barred access under the common law to “warrant
materials in the midst of a pre-indictment investigation,” on the ground that such records “traditionally [have] been
kept secret for important policy reasons.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006) (quoting Times Mirror Co., 873 F.2d at 1219). In any event, as previously explained, supra n.5, because the
unrelated investigations at issue here are closed, the Court need not consider whether a common law right of access
attaches to warrant materials in ongoing criminal investigations.

                                                         30
including sexual preferences and relationships that are not known to the public. In the context of

the common law right of access, the D.C. Circuit and others have long recognized the “[v]alid

privacy interest[] . . . in documents which reveal the intimate details of individuals lives, sexual

or others, whether or not they concern innocent third parties.” See Hubbard, 650 F.2d at 324

(internal quotation marks and footnote omitted); see also Application of Newsday, Inc., 895 F.2d

74, 79 (2d Cir. 1990) (“[T]he common law right of access is qualified by recognition of the

privacy rights of the persons whose intimate relations may thereby be disclosed . . . .”). Beyond

this significant privacy interest, the individual due process, reputational, and law enforcement

concerns described above, supra Parts II.B.2.b, II.B.2.c, further counsel against additional

disclosure in this case. Given the public’s limited access to the information contained in the

sought-after materials, further disclosure would tangibly harm these interests. Apparently

recognizing this risk, both the government itself and each of the individuals whose interests may

be impaired oppose further unsealing in this case. Gov’t’s Resp. Court’s July 19, 2016 Order

(Sealed) at 5–6; see supra Part II.B.2.b.

       Relying on In re New York Times, as well as its own reporting, the Post contends that the

private details it believes would be revealed in the sealed materials “are now largely out in the

open,” Post’s Suppl. at 9, thus mitigating any further harm through additional disclosure. As

previously discussed, however, see supra Part II.B.2.b, the present case is readily distinguishable

from In re New York Times in that none of the investigative information giving rise to the sealed

materials at issue here has been publicly acknowledged by the USAO. Apparently conceding

this important distinction, the Post relies on informal “conversations with . . . confidential and

on-the-record sources” to suggest that the information it has reported is now widely

acknowledged. Post’s Suppl. at 4.



                                                 31
        Setting aside the troubling suggestion that unauthorized disclosures from law

enforcement agents or the USAO have the effect of extinguishing the privacy, reputational, and

due process interests of uncharged third parties, the fact remains that the documents the Post

seeks are not publicly available and the Post’s reporting to date offers scant information

regarding their supposed contents. For this reason, the additional disclosure the Post seeks is

highly likely to significantly infringe on the compelling interests identified above.

        Weighed against these important individual privacy, reputational, and due process

interests and law enforcement interests, the Post’s asserted need for public access to the sought-

after materials falls well short of meriting further disclosure in this case. Indeed, as noted above,

supra Part II.B.1, the public interest in evidence of conduct unrelated to the campaign activities

underlying the Campaign Finance Investigation is highly attenuated from the core public

interests identified by the Post in its initial motion. The conduct described by the Post bears no

direct relationship to matters of public trust or the integrity of the District’s elections. Instead,

the public’s interest in disclosure stems from a tangential interest in learning more about the

broader context of the USAO’s Campaign Finance Investigation. While the public’s interest in

holding its elected officials accountable is indeed strong, this secondary interest in gleaning

additional information regarding the credibility of potential witnesses in high-profile criminal

prosecutions is simply insufficient to overcome the compelling interests described above.

        Consequently, no further unsealing is warranted under the common law in response to the

Post’s present motion. Accord Redacted Mem. Op., United States v. Thompson, No. 14-cr-49

(CKK), ECF No. 66 (holding that the government “advanced several strong and compelling

interests that outweigh the common law qualified right of access” to sentencing materials, like




                                                  32
the warrant materials at issue here, “outlining areas of [Thompson’s] substantial assistance that

did not result in public charges”).

III.   CONCLUSION

       In denying the Post’s request for additional unsealing in this case, the Court is mindful

that today’s result may be met with some disappointment by the Post and even the USAO.

Though motivated by different incentives, both these parties have interests in disclosure.

Specifically, a full airing of the information available to the USAO in connection with the

Campaign Finance Investigation likely would serve not only to sate the public’s desire for

additional insight into an investigation that continues to hold some mystery, but would also help

explain and perhaps vindicate USAO decisions that have come under intense public scrutiny.

Indeed, it is easy to imagine circumstances in which law enforcement agents or prosecutors

facing evidentiary or legal issues that frustrate their ability to bring formal criminal charges opt

to disregard important individual and even law enforcement interests in order to preserve their

own personal professional reputations. The government properly resisted that temptation in this

case. As the D.C. Circuit has pointed out in a different context, “the government, having brought

the full force of its prosecutorial power to bear against individuals it ultimately failed to prove

actually committed crimes, has a special responsibility—a responsibility it is fulfilling here—to

protect such individuals from further public scrutiny.” ACLU, 750 F.3d at 935.

       In the end, “[t]he job of protecting [individual privacy and reputational] interests rests

heavily upon the shoulders of the trial judge, since all the parties who may be harmed by

disclosure are typically not before the court.” Matter of New York Times Co., 828 F.2d 110, 116

(2d Cir. 1987); see also ACLU, 750 F.3d at 935 (observing that “[s]uch balancing decisions,”

involving weighing the “substantial privacy interest at stake” for “defendants who were acquitted



                                                 33
or had their cases dismissed . . . against the public interest in disclosure . . . [,] generally

speaking, are among the most challenging sorts of cases that judges face”). Here, in light of the

compelling individual and law enforcement interests described above, no further disclosure is

warranted in this case under either the First Amendment or the public’s common law right of

access to judicial materials. Even assuming the records the Post seeks are not categorically

excluded from disclosure, any value in exposing additional details of separate investigations

conducted by the USAO into unrelated conduct of individuals targeted in the Campaign Finance

Investigation is easily outweighed by compelling privacy, reputational, due process, and law

enforcement interests in continued sealing of these materials. For this reason, the Post’s request

for additional unsealing in this case is denied.



        Date: August 18, 2016
                                                                           Digitally signed by Hon. Beryl A. Howell
                                                                           DN: cn=Hon. Beryl A. Howell, o=U.S. District Court
                                                                           for the District of Columbia, ou=Chief Judge,
                                                                           email=Howell_Chambers@dcd.uscourts.gov, c=US

                                                         __________________________
                                                                           Date: 2016.08.18 14:06:54 -04'00'




                                                         BERYL A. HOWELL
                                                         Chief Judge




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