Judge denies public access to search warrant in Richard Burr insider trading investigation
“In closed investigations, not recognized by the government, public access to documents has always been limited, and the petitioner presents no reason to believe that the important interests that lawyers against such access would not be present in this case, ”wrote Howell, a former adviser to the Senate Judiciary Committee who was appointed to the bench by President Barack Obama.
Howell said the disclosure of any material – which she has not confirmed to exist – could impact “important privacy interests” as well as “government investigative interests.” She kept part of her opinion under seal and refused the Times’ access request to access a sealed submission the Department of Justice made on the matter.
Katie Townsend, the lawyer for the Journalists Committee for Press Freedom who filed the unsealing petition on behalf of The Times, said no decision has yet been made on whether to appeal.
“In a situation like this, where it has been publicly reported that a search warrant has been executed as part of a criminal investigation into stock transactions by a sitting United States Senator, the public interest in l ‘access to the documents of the higher search warrant. And that is true whether or not the investigation has ended without any charges being laid, ”Townsend said. “We are very disappointed with the court’s decision and are evaluating the next steps.”
While Howell pointed out that the Justice Department never officially confirmed the investigation, Townsend noted that Burr publicly acknowledged the investigation. Indeed, in January of this year, he issued a statement welcoming the conclusion of the investigation.
Some proponents of better access to court records said they were troubled by Howell’s ruling because it threatened to obscure information about the conduct of public officials and because it seemed unaware that many federal courts automatically unsealed most of their search warrants.
“It’s offensive,” said Seamus Hughes, a George Washington University researcher and renowned expert for scouring unsealed court files for overlooked information. “This will drastically restrict public access to court records. … Search warrants provide a significant level of sunshine in a democracy. “
Hughes said that whatever privacy concerns are present in the personal files, they are clearly diminished for a US Senator. “The privacy bar should be lower for a public official, ”he said.
Hughes also noted that while Howell seemed to suggest that secrecy is or should be the default standard for search warrant files in cases where no charges are laid, many places are not.
“Search warrants are regularly unsealed for reasons that have nothing to do with whether or not a criminal case is brought,” he said. “The Western District of Virginia automatically cancels the vast majority of search warrants after a certain period of time. Connecticut is doing the exact same thing. … Some redact [portions.] Most don’t. … To say it’s unheard of is, I think, a bit of an exaggeration.
Burr’s attorney, Alice Fisher, did not immediately respond to an email Wednesday evening requesting comment on the decision.
Technically, Howell’s decision sets no precedent. But in practice, it is binding – at least for now – on similar cases that arise in Washington, as requests to unseal the seals would likely be directed to her as long as she is the chief justice.
Howell’s decision surprised some court observers, as she has generally been a strong advocate for greater disclosure of court records. At the request of a journalist, she instituted a major overhaul of the way the court registers and manages various cases, facilitating the process of disclosing certain information on various internet and telephone recording requests. And she sometimes has insisted on public disclosure of court opinions even when prosecutors have argued they should be kept fully under seal.
Disclosure: Gerstein sits on the steering committee of the Journalists’ Committee for Freedom of the Press.