A federal appeals court signaled Wednesday that it is inclined to give journalists another chance to argue for public release of the Justice Department’s basis for obtaining a search warrant in 2020 for Sen. Richard Burr’s phone as part of an insider trading investigation.
Justice Department officials informed Burr (R-N.C.) in January 2021 that the criminal investigation was closed, but last May, Chief Judge Beryl Howell of the federal district court in Washington issued a sweeping opinion denying the Los Angeles Times’ request to see what justified the unusual search warrant aimed at an incumbent senator.
During arguments on the issue Wednesday, all three D.C. Circuit Court of Appeals judges assigned to the newspaper’s appeal criticized Howell’s ruling for failing to address key factors established for disputes about public access to court records.
“You’re talking about activities of a sitting senator. You’re talking about alleged insider trading by members of Congress — Congress which is very much in the public discourse,” said Judge Greg Katsas, an appointee of President Donald Trump. “There’s not even a sentence about it.”
“We can’t even find a sentence in the analysis section acknowledging and discussing the public interest in disclosure,” said Judge Patricia Millett, who was appointed by President Barack Obama. “It only addressed one side of the privacy arguments in this case.”
Judge Judith Rogers said Howell’s decision denying access articulated the factors and made a “conclusory” statement that any right of access had been overcome by privacy interests and the government’s law-enforcement interests, but never really explained why.
“I think our circuit precedent has strongly indicated that’s not enough,” said Rogers, an appointee of President Bill Clinton. “We don’t have an analysis.”
According to news reports, the search warrant was reportedly issued as part of an investigation into whether Burr, the then-chairman of the Senate Intelligence Committee, used information from official briefings on the perils of the coronavirus to make stock trades that earned money or saved him from the major market downturn in early 2020.
While the Justice Department never formally acknowledged the search, unnamed law enforcement officials did confirm the end of the investigation last year. However, at Wednesday’s arguments, Justice Department lawyer Elizabeth Danello described those statements as “unauthorized disclosures.”
Danello ultimately conceded that some of the things the appeals judges were searching for in Howell’s opinion just weren’t there.
“The opinion is what it is,” said Danello, who is assigned to the U.S. Attorney’s Office in Washington. “The court nonetheless is presumed to have understood these interests…. There’s nothing to indicate that the court here didn’t understand the law.”
At one point, Millett suggested that the government’s argument was that even if Howell didn’t explain how the factors applied to the Burr filings, simply invoking them was “good enough for government work.”
Danello, a deputy chief in the U.S. Attorney’s appellate division, took umbrage at that language. “We in the government try to turn square corners, so I do not accept that analogy,” she said.
Howell’s opinion on the Burr-related filings prompted alarm from news organizations and transparency advocates because it seemed to suggest that search warrant records in cases where no charges are filed should remain secret forever. That conflicts with the longstanding practices of many federal, state and local courts where such records are routinely unsealed after a specified amount of time or once an investigation is concluded.
The decision also seemed to import the practices of law enforcement agencies, which have traditionally been more secretive, to the courts, which have typically been more open. At one point Wednesday, Katsas also seemed to blur those lines. “There’s pretty strong tradition that… the government doesn’t release materials like that,” he said.
The lawyer for the Times, Katie Townsend of the Reporters Committee for Freedom of the Press, insisted that there is actually a “strong tradition” of public access to search warrants.
Townsend also said the government’s insistence that the Burr probe was a secret was at odds with the Justice Department’s comments to the media and with Burr’s own statement announcing the closure of the DOJ probe. “That cat was well out of the bag,” she said.
It now appears that part of the government’s opposition to unsealing the Burr warrant materials may have been driven by a Securities and Exchange Commission investigation that remained ongoing after the criminal probe was dropped. As of last May, the SEC’s role wasn’t public, but it emerged officially in October when the commission sought a court order in New York forcing Burr’s brother-in-law Gerald Fauth to give a deposition in that inquiry.
After hearing about 45 minutes of arguments Wednesday that were public through an audio feed streamed online, the judges had an exchange with the Justice Department lawyer in private to discuss aspects of Howell’s ruling and the case that remain under seal.
While the judges did not rule immediately, after the public session it appeared likely the appeals court will remand the case to Howell with instructions to look at the issue again and explain her conclusion in more detail.
Disclosure: Josh Gerstein is a member of the steering committee of the Reporters Committee for Freedom of the Press.
