In Re Application of  Reporters’ Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange,  No. 2:18-cv-00037 (LMB/JFA).

 Julian Assange, Wikileaks founder and ostensible figure of interest in investigations into interference with the 2016 presidential election, was disclosed, by reported inadvertence, as the subject of criminal processes in a November court filing.  The Reporters’ Committee for Freedom of the Press has moved the federal court in the Eastern District of Virginia to unseal the criminal records

At oral argument on November 27, 2018, the government resisted unsealing vociferously, arguing that there is no right to unsealing prior to arrest.  The Reporters’ Committee, by contrast, maintains that the ‘right’ is one of access, either under the constitution or common law, making it the government’s responsibility to demonstrate with specificity any reason requiring sealing court records.  

In recent post-argument supplemental memorandum, the Reporters’ Committee offers that the government’s position that there is a general “pre-arrest” exception to First Amendment and common law rights of access to the courts has no foundation in law or fact.  The government must demonstrate why any claimed exception to open proceedings is justified on an individualized basis. This has not and cannot be done in this case, where Assange has already been identified, where he is doubtlessly aware of the imminence of proceedings, and where, having sought sanctuary in the Ecuadorian embassy in London for years, his location is well known to United States’ authorities, and his opportunities for flight less than optimal.  

It is the type of record, not custodial status, that controls decisions to seal or to unseal, the Reporters’ Committee asserts.  The constitutional and common law presumption of access cannot be overcome by general assertions, particularly where no case exists supporting the ideas that rights of access either do not exist or ought not apply prior to custody.  The government’s July, 2018 disclosures of indictments against Russian intelligence officers, all prior to arrest, flatly contradicts the government’s current position.

Neither can the government’s desire to preserve the integrity of ongoing investigations be supported by generalities, the Reporters’ Committee submits:  the government must present specific information demonstrating that a particular investigation would be harmed by disclosures. Where interest in Assange and Wikileaks has been widely publicly known for some time, there can be no reason to withhold public records.  

Of central importance are the critical  is the First Amendment principles in issue in any government determination to prosecute Assange because of Wikileaks’ publications. A prosecution for publication will affect both the press and the public, making public proceedings all the more significant.

The government in response reiterates that no case can be found in which disclosures (or denials) of a charging instrument was ordered pre-arrest.  It is immaterial whether the document in question is a docket, a charging instrument, a warrant, or an indictment, for it cannot be argued that the rules permitting sealing by a magistrate judge,  promulgated by the United States Supreme Court, can be disregarded absent a determination of fundamental constitutional or Enabling Act error.

That some documents are unsealed before arrest does not mean all should be, the government asserts, particularly where deference is due the court which made the determination to withhold.  The determination to seal should be respected absent a showing of prejudice or harm to the public interest. There are cases that uphold the adequacy of rights to challenge sealing orders occurring after public disclosure of indictments or the execution of (definitionally) ex parte search warrants.  

Neither does the press’ surmise about who the subject of any court filing may be compel the government to confirm or deny the validity of the press’ guess. There is no government compulsion to disclose whether an individual is not charged or charged under seal.

It is not known how long the court will take to rule.   

Assange – Reporters’ Committee Supplemental Memo of Points and Authorities

Assange – Government’s Response to Reporters’ Committee Supplemental Memorandum