In re the Application of Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-00037-LMB-JFA (E.D. Va._ Hearing on Motion on November 27, 2018.
Just days ago the media reported that Wikileaks founder Julian Assange was the subject of a federal indictment stemming from Special Counsel Robert Mueller’s investigation into Russian interference in the U.S. 2016 presidential election.
The grand jury proceedings leading to the charge, as well as the charge itself, were intended to remain under seal with the court. The Department of Justice offered that the disclosure was inadvertent, a failure in proofreading.
Nothing piques the curiosity so much as a government gaffe of this magnitude. A leak about a leaker, inadvertent or, one might speculate, perhaps not, cannot help but excite public interest, particularly where, as here, years have passed and the special counsel proceedings have borne little prosecutorial fruit and even less public disclosure. Add to this the somewhat exotic nature of Assange’s years-long exile in the sanctuary of the Ecuadorian Embassy in London, and the mix is as potent as those fond of intrigue might hope.
As guardian of and advocate for the right of access to the courts, both under the Federal Constitution and at common law, the Reporters Committee for Freedom of the Press has moved the U.S. District Court for the Eastern District of Virginia to unseal all the records purportedly relating to Assange.
In its opposing memorandum and at argument on the Reporters Committee motion today, the United States vigorously objected to the request for unsealing, particularly where the government states it has no obligation to confirm or deny the existence of a charge at all at this point, notwithstanding the erroneous disclosure.
The government has argued that where there has not yet been an arrest, even if there has been an inadvertent disclosure of a name, the court has no obligation to, and should not, open its records. To announce publicly the pendency of proceedings would serve no policy of public access, the government has suggested. To the contrary, disclosure prior to arrest would confer an unwarranted benefit on a defendant, enabling him or her to order personal affairs and repair to a location well beyond the powers of the court.
The court has taken the matter under advisement.
The parties’ memoranda of law: