On August 18, 2022, after a hearing that was open to the public but not livestreamed, Magistrate Judge Bruce E. Reinhart denied the governments position that the affidavit used to obtain the search warrant should not be released even in redacted form: ““Government has not met its burden of showing that the entire affidavit should remain sealed.” The Magistrate set up a process for the feds to submit proposed redactions to the Magistrate.
On August 5, 2022, the Court issued a search warrant for the Premises after finding probable cause that evidence of multiple federal crimes would be found at the Premises (“the Warrant”). An FBI Special Agent’s sworn affidavit (“the Affidavit”) provided the facts to support the probable cause finding….I do not need to resolve whether the First Amendment right of access applies here. As a practical matter, the analyses under the common law and the First Amendment are materially the same. Both look to whether (1) the party seeking sealing has a sufficiently important interest in secrecy that outweighs the public’s right of access and (2) whether there is a less onerous (or, said differently, a more narrowly tailored) alternative to sealing. As discussed more fully below, in this case, both tests lead to the same conclusion….Protecting the integrity and secrecy of an ongoing criminal investigation is a well-recognized compelling governmental interest….In the context of an ongoing criminal investigation, the legitimate governmental concerns include whether: (1) witnesses will be unwilling to cooperate and provide truthful information if their identities might be publicly disclosed; (2) law enforcement’s ability to use certain investigative techniques in the future may be compromised if these techniques become known to the public; (3) there will be an increased risk of obstruction of justice or subornation of perjury if subjects of investigation know the investigative sources and methods; and (4) if no charges are ultimately brought, subjects of the investigation will suffer reputational damage….As the Government aptly noted at the hearing, these concerns are not hypothetical in this case. One of the statutes for which I found probable cause was 18 U.S.C. § 1519, which prohibits obstructing an investigation. Also, as some of the media Intervenors have reported, there have been increased threats against FBI personnel since the search….Given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated….
The Magistrate then went through the factors in favor of the government:
Balancing the Government’s asserted compelling need for sealing against the public’s interest in disclosure, I give great weight to the following factors:
• There is a significant likelihood that unsealing the Affidavit would harm legitimate privacy interests by directly disclosing the identity of the affiant as well as providing evidence that could be used to identify witnesses. As discussed above, these disclosures could then impede the ongoing investigation through obstruction of justice andwitness intimidation or retaliation. This factor weighs in favor of sealing.• The Affidavit discloses the sources and methods used by the Government in its ongoing investigation. I agree with the Government that the Affidavit “contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).” ECF No. 59 at 8. Disclosure of these facts would detrimentally affect this investigation and future investigations. This factor weighs in favor of sealing.• The Affidavit discusses physical aspects of the Premises, which is a location protected by the United States Secret Service. Disclosure of those details could affect the Secret Service’s ability to carry out its protective function. This factor weighs in favor of sealing.• As the Government concedes, this Warrant involves “matters of significant public concern.” ECF No. 59 at 7. Certainly, unsealing the Affidavit would promote public understanding of historically significant events. This factor weighs in favor of disclosure….
No one disputes that there has been much public discourse aboutthis Warrant and the related investigation. ECF No. 67 at 7-9 (summarizing issues of public discussion). Nevertheless, much of the information being discussed is based on anonymous sources, speculation, or hearsay; the Government has not confirmed its accuracy.
In any event, these arguments ignore that the contents of the Affidavit identify not just the facts known to the Government, but the sources and methods (i.e., the witnesses and the investigative techniques) used to gather those facts. That information is not known to the public. For the reasons discussed above, the Government has a compelling reason not to publicize that information at this time….
After weighing all the relevant factors, I find that the Government has met its burden of showing good cause/a compelling interest that overrides any public interest in unsealing the full contents of the Affidavit.
The Magistrate then ruled that redaction would be most appropriate, but reserved the option of holding back the entirety of the affidavit:
I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government.The Government argues that even requiring it to redact portions of the Affidavit that could not reveal agent identities or investigative sources and methods imposes an undue burden on its resources and sets a precedent that could be disruptive and burdensome in future cases. I do not need to reach the question of whether, in some other case, these concerns could justify denying public access; they very well might. Particularly given the intense public and historical interest in an unprecedented search of a former President’s residence, the Government has not yet shown that these administrative concerns are sufficient to justify sealing.I therefore reject the Government’s argument that the present record justifies keeping the entire Affidavit under seal.
What to read into this? It seems the Magistrate may be going wobbly. By holding out the possibility that he may change his mind, the Magistrate has incentivized the feds to engage in almost complete redaction to render the released document meaningless.
Don’t expect much at the end of this process.
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