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U.S. Attorney Motion Opposing DCNF requests to unseal FBI raid affadavits and other materials justifying the search of Dennis Nathan Cain, a protected whistleblower
Original Title
U.S. Attorney Motion Opposing DCNF Request to Unseal FBI Raid Documents, December 7, 20128
U.S. Attorney Motion Opposing DCNF requests to unseal FBI raid affadavits and other materials justifying the search of Dennis Nathan Cain, a protected whistleblower
U.S. Attorney Motion Opposing DCNF requests to unseal FBI raid affadavits and other materials justifying the search of Dennis Nathan Cain, a protected whistleblower
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE: LETTER REQUEST OF s
THE DAILY CALLER NEWS = MISC. NO. 18-3122-SAG
FOUNDATION TO UNSEAL *
SEARCH WARRANT OF is
‘A PREMISES LOCATED IN *
UNION BRIDGE, MD *
RESPONSE IN OPPOSITION TO LETTER REQUEST TO UNSEAL,
;EARCH WARRANT AND. [ATERIALS
The United States of America, by and through its representative, the U.S. Attorney's Office
for the District of Maryland, submits this response to a letter filed in the above-captioned matter
by the website, The Daily Caller, requesting that the Court unseal search warrant materials in an
ongoing criminal investigation. The request should be denied. Public disclosure of any search
warrant materials would seriously jeopardize the integrity of the ongoing investigation. Continued
sealing is essential in order to guard against possible tampering of witnesses and destruction of
evidence, to maintain the ability of the grand jury to investigate this matter, and to prevent the
disclosure of sensitive investigative techniques and methods
These warrant materials reveal investigative sources, factual assumptions, and legal
theories, as well as evidence that has been gathered, including through sensitive investigative
methods. Facts set forth in these warrant materials reveal what has been searched and indicate what
hhas not yet been searched. Making this type of information pubic while this investigation is
ongoing could harm the government's ability to find additional relevant evidence. Moreover,
where, as here, the facts set forth in the warrant are interwoven with sensitive investigative
information, the possibility of a line-by-line redaction is not practicable. As set forth below, the
Fourth Circuit has routinely held that in an ongoing investigation, these government interestsprevail over the public's qualified right of access. Accordingly, the search wartant materials at
issue should remain under seal until further order of the Court.
BACKGROUND
On November 15, 2018, the Court issued the search warrant at issue in this ease and sealed
the warrant materials.
On November 29, 2018, The Daily Caller, a news and opinion website, published a story
purporting to describe the November 19, 2018 execution of a search warrant by the Federal Bureau
of Investigation (FBI) at a premises located in Union Bridge, Maryland.
On November 30, 2018, this Court received a letter from The Daily Caller News
Foundation (“The Daily Caller”) asking the Court to unseal “the underlying documents” related
to the search warrant executed at the premises. See 18-1322-SAG, ECF No. 6 (filed Nov. 30,
2018). Inits letter, The Daily Caller stated that “the documents should be unsealed in light of the
‘urgent publie interest in this matter.” The letter makes no other argument for unsealing, and cites
no legal authority that would support unsealing of the warrant.
LEGAL AUTHORITY
“(T]he press does not have a first amendment right of access to an affidavit for a search
warrant.” Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989). Rather, “the press and
public enjoy a qualified common law right of access . . . to judicial records including affidavits
supporting investigative search warrants.” Media Gen. Operations, inc. v. Buchanan, 417 F.3d
424, 429 (ath Cir. 2005) (citing Goers, 886 F.2d at 64-65) (emphasis added). “Common law rights
provide the press and the public with less access than First Amendment rights.” Id.
+ Available at hitps://dailycaller.com/2018/11/29/fbi-whistleblower-clinton-uranium/
(accessed Dec. 1, 2018).‘The decision to grant or deny access to judicial records under the common law right is “left
to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts
and circumstances of the particular case.” Nixon v. Warner Comme'ns, Inc., 435 U.S. $89, 599
(1978). The Fourth Circuit has held that in reviewing requests to unseal search warrants, a court
may deny access to search warrant documents if sealing is “essential to preserve higher values
and is narrowly tailored to serve that interest." Goetz, 886 F.2d at 65-66 (quoting Press-Enterprise
Co. v. Superior Court of California, 464 U.S. 501, $10 (1984)). A decision to seal or grant access
to warrant papers is reviewed for abuse of discretion. Goetz, 886 F.2d at 65; In re Washington Post
Co., 807 F.2d 383, 390 (4th Cir. 1986).
ARGUMENT
1. Sealing Is Essential to Protect the Government's Ongoing Criminal Investigation.
Where, as here, a criminal investigation is ongoing, sealing is essential to maintain the
integrity of the investigation and to prevent the harms that would flow from public disclosure.
Media Gen. Operations, inc., 417 F.3d at 431 (“[T]he governments interest in continuing its
‘ongoing criminal investigation outweighs the petitioners’ interest in having the document opened
to the press and the public. ..."); see also In re EyeCare Physicians, 100 F.3d $14, 517-19 (7th
Cir. 1996) (affirming denial of motion to unseal because “disclosure of the affidavits might very
likely impair the on-going criminal investigation”).
Several harms would follow from unsealing the search warrant during the government's
ongoing criminal investigation, as described herein and further in the government's sealed
supplement, First, unsealing would expose details of the government’s investigation and impact
the government’s ability to secure charges in this matter. “[T]he identity of unnamed subjects not
yet charged would be revealed; there may be mistaken notions conceming . . . who may be