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The NeWYorkTimes
Company

 

David McCraw
Vice President 8:
Deputy General Counsel

620 Eighth Avenue
New York, NY 10018
tel 212556-4031

fax 212556-4634
mccraw@nytimes.com

October 11, 2018

VIA FEDERAL EXPRESS

Judge William H. Pauley, 
United States Courthouse
500 Pearl St.

New York, NY 10007-1312

Re: United States v. Cohen, 18-cr-602 Request to Unseal Materials
Dear Judge Pauley:

I write on behalf of The New York Times Company (?The Times?) to seek an order unsealing
materials (the ?Materials?) related to searches conducted in the above-referenced case, United
States v. Cohen. Speci?cally, The Times seeks copies of the search warrants, search warrant
applications, supporting af?davits, court orders, and returns on executed warrants related to
searches done on Michael?s Cohen?s residence, hotel room, of?ce, cell phones, and safe deposit
boxes on April 9, 2018, as well as similar applications and supporting documents pertaining to
searches of Mr. Cohen?s electronic communications pursuant to 18 U.S.C. 2703. If Your
Honor prefers, we are prepared to move by formal motion to intervene and seek the unsealing.
We make this request pursuant to the public?s right of access to judicial records, grounded in
both the federal common law and the First Amendment.1 Both the Government and the defense
oppose this application.

 

The right of access is an af?rmative, enforceable public right, and the standing of the press to
enforce it is well settled. See, e. g, Globe Newspaper Co. v. Superior Court, 457 US. 596, 609
n.25 (1982); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004).

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I. BACKGROUND

The Materials sought here relate to searches conducted by the Government in its investigation of
Defendant Michael Cohen. On April 9, 2018, the FBI executed warrants for the residence, hotel
room, of?ce, safe deposit boxes, and two cell phones of Mr. Cohen. (Cohen v. United States, 18?
mj-3161, Dkt. 1, at 3.) In addition, searches of Mr. Cohen?s electronic communications were also
conducted. (Id. at Mr. Cohen quickly moved for a temporary restraining order
preventing the Government from reviewing the seized records, claiming that the documents were
subject to the attorney-client privilege. (Id) The Government opposed the motion. It argued that
Mr. Cohen was being investigated not for his conduct as a lawyer, but ?for criminal conduct that
largely centers on his personal business dealings.? (Id at 1.) The Government also disclosed that
it had previously obtained search warrants for several of Mr. Cohen?s email accounts, and that a
privilege review of those emails revealed that Mr. Cohen was ?performing little to no legal
work.? (Id. at 13.) Ultimately, the Court appointed a special master to conduct a privilege review
of the seized materials. (Id, Dkt. 30.) The special master ?led her ?nal report on August 16,
2018, and the Court adopted its recommendations on August 20. Dkts. 101, 103.)

Subsequently, Mr. Cohen pleaded guilty to eight criminal charges. (United States v. Cohen, 18-
cr-602, docket entry for August 21, 2018.) Five of those counts relate to Mr. Cohen?s purely
?personal business dealings? namely, his failure to pay taxes on income he earned through
ownership of taxi medallions. (United States v. Cohen, 18-cr?602, Dkt. 2, at 2-6.) The other three
counts, which relate to bank transactions and improper contributions to President Trump?s
election campaign, implicate Mr. Cohen?s conduct in his capacity as the President?s lawyer and
so-called ?fixer.? (Id. at 10-19.) At his plea hearing, Mr. Cohen declared that he made the
campaign contributions ?in coordination with and at the direction" of President Trump.3

Mr. Cohen is due to be sentenced on December 12, 2018. (Id, docket entry for August 21, 2018.)
II. ARGUMENT

Both the federal common law and First Amendment endow the public with a right of access to
judicial documents, including search warrant materials. While that right can be overcome by
certain countervailing interests at times, the parties face a particular heavy burden in trying to
justify shielding judicial documents from public View where, as here, the Government?s
investigation has concluded and the public interest in the materials is immense. For the reasons
set forth below, The Times respectfully requests that the Court unseal the Materials.

 

2 We understand that additional searches related to the case were also conducted. They are not included
in this application but we reserve the right to seek access to materials from those searches at a later date.
3 William Rashbaum. et a1. Michael Cohen Says He Arranged Payments to Women at Trump '5
Direction,? The New York Times (Aug. 21, 2018),



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A. The Common Law Right of Access Requires that the Materials Be Unsealed

 

Second Circuit law governing the public?s common law right of access to judicial records is well
established. Any ?judicial document? is subject to a presumption of access. Lugosch v. Pyramid
C0. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). The Second Circuit among other federal
appellate courts - has squarely held that search warrant materials are judicial documents to
which the common law right of access attaches. See In re Application of Newsday, Inc, 895 F.2d
74, 79 (2d Cir. 1990) (af?rming order releasing search warrant af?davit based on common law
right of access to judicial records); see also, e. In re Boston Herald, Inc, 321 F.3d 174, 194
n.9 (lst Cir. 2003); United States v. Bus. of Custer Battle?eld Museum Store Located at
Interstate 90, Exit 514, S. of Billings, Mont, 658 F.3d 1188, 1194 (9th Cir. 2011). And the only
appellate court to have considered the question has held that court orders issued under 18 U.S.C.
2703(d) as well as motions seeking such orders are subject to a common law right of
access. In re US. for an Order Pursuant to 18 US. C. Section 2 703 (D), 707 F.3d 283, 290 (4th
Cir. 2013). Under Lugosch, judicial documents must be released unless countervailing interests
require withholding. Lugosch, 435 F.3d at 119.

I . The presumption of access to the Materials is particularly weighty

The weight of the presumption of access turns on the nature of the speci?c document at issue,
taking into account ?the role of the material at issue in the exercise of Article judicial power
and the resultant value of such information to those monitoring the federal courts.? Lugosch, 435
F.3d at 119 (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995)) (internal
marks omitted). Once the court has determined the weight of that presumption, it must then
balance the value of public disclosure against ?countervailing factors.? Bernstein v. Bernstein
Litowitz Berger Grossmann LLP, 814 F.3d 132, 143 (2d Cir. 2016). Courts within the Circuit
have explained that the presumption of access to materials related to search warrants in
concluded cases is not set aside. Indeed, search warrant materials ?go to the heart of the
judicial function?: they inform the judicial determination to grant a search warrant, which in turn
affects the rights of individuals to be free from unreasonable searches and seizures of their
property. In re Search Warrant, 2016 WL 7339113, at *3 (S.D.N.Y. Dec. 19, 2016); see also
United States v. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 584 (S.D.N.Y.
2009); In re Sealed Search Warrants Issued June 4 5, 2008, 2008 WL 5667021, at *3

(N .D.N.Y. July 14, 2008) (noting that documents ??led in connection with the two search
warrants adjudicated the right of individuals under the Fourth Amendment not to be subjected to
government intrusion absent a judicial determination of suf?cient cause,? a right ?held among
this country?s highest values?). The result is that the presumption of access to search warrant
materials carries ?the maximum possible weight.? In re Sealed Search Warrants Issued June 4 
5, 2008, 2008 WL 5667021, at see also In re Search Warrant, 2016 WL 7339113, at All
Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d at 584.

The public interest in openness is particularly high in this case. The Materials relate to the
Government?s criminal investigation of a person who was for a long time the personal lawyer to
and close associate of the President of the United States. Mr. Cohen undertook some of his
criminal conduct in his capacity as the President?s associate, and he alleges at his direction.
Even if the focus of this investigation was initially on Mr. Cohen?s ?personal business dealings,?

3
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its scope ultimately became much bigger than that. At the same time, the President and his
suppouters have suggested that the investigation was politically motivated and not based on the
rule of law.4 Simply put. the public interest in knowing the underlying bases for the investigation
could not be higher.

2. The countervailing factors do not overcome the presumption of access to the
Materials

The burden rests on the parties to establish that some countervailing factors should set aside the
public?s right of access. We know of none in the record as it stands. Typically, the
?countervailing factors? that can overcome the presumption of access to a judicial document are
?the danger of impairing law enforcement or judicial ef?ciency? and ?the privacy interests of
those resisting disclosure.? Bernstein, 814 F.3d at 143. Neither factor appears to have anything
more than marginal weight here.

First, any risk of impairing law enforcement interests is minimal because the Government?s
investigation of Mr. Cohen has concluded. See id. (interests favoring secrecy were ?wea 
because disclosure would not ?reveal details of an ongoing investigation?). More to the point,
Mr. Cohen has pleaded guilty to all the charges against him. And to the extent there are any
ongoing investigations related to Mr. Cohen?s, any sensitive law enforcement information in the
documents can be redacted. See United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995).

Second, the legitimate privacy interests in the Materials appear negligible or nonexistent. These
are business records from a highly public prosecution, not records of a personal or intimate
nature. See, e. Bernsten v. O?Reilly, 307 F. Supp. 3d 161, 170 (S.D.N.Y. 2018) (assertion of
?generalized ?privacy interests?? insuf?cient to overcome right of access); In re New York Times
Co., 828 F.2d 110, 116 (2d Cir. 1987) (extent of public knowledge of sealed material factors into
a court?s decision to grant access). Any information that is genuinely private can be protected
through targeted redactions.

B. The First Amendment Right of Access Equally Compels Unsealing of the Materials

The legal principles governing the First Amendment right of access to judicial records are
equally well settled. The First Amendment right provides a second and independent basis for
unsealing. The right attaches to a large array of judicial records and gives the public a
constitutional right to inspect those records, absent a showing of an overriding public interest
that justi?es sealing. See, e. g, Lugosch, 435 F.3d at 124 (common law and constitutional right to
judicial documents in civil case); Pellegrino, 380 F.3d at 92-93 (unsealing of court dockets under
the First Amendment); United States v. Suarez, 880 F.2d 626, 630 (2d Cir. 1989) (First
Amendment right to documents in a criminal case).

 

4 Michael D. Shear, Trump Denounces F.B.I. Raid on His Lawyer?s Office as ?Attack on Our
Country?, The New York Times (April 9, 2018), 


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The Supreme Court has developed a two-part test, based on ?experience? and ?logic,? for
determining whether the First Amendment right attaches to particular documents. See Press-
Enterprise Co. v. Superior Court of California, 478 US. 1, 8 (1986); see also Pellegrino, 380
F.3d at 92. Under the experience prong, the court considers whether the document has
historically been open to the press and the public. Press-Enterprise, 478 US. at 8. The logic
prong concerns ?whether public access plays a signi?cant positive role in the functioning of the
particular process in question.? Id

The Second Circuit has not decided whether a First Amendment right of access applies to search
warrant materials. See Newsday, 895 F.2d at 78. The argument that it does is compelling,
however, both in terms of ?experience? and ?logic.? Though ?the process of issuing search
warrants has traditionally not been conducted in an open fashion, search warrant applications and
receipts are routinely ?led with the clerk of court without seal.? In re Search Warrant for
Secretarial Area Outside Of?ce oqunn, 855 F.2d 569, 573 (8th Cir. 1988). And as discussed
above, access to search warrant materials aids the public in monitoring the Government?s use of
its extraordinary search and seizure powers. Unsurprisingly, a number of courts have concluded
that a First Amendment right of access attaches to search warrant materials. See id. 
quali?ed ?rst amendment right of public access extends to the documents ?led in support of
search warrants?); United States v. Loughner, 769 F. Supp. 2d 1188, 1193 (D. Ariz. 2011)
(?nding a First Amendment right of access to search warrant documents at the ?post-
investigation, post-indictment? stage of a criminal proceeding); In the Matter of the Application
of The New York Times Company For Access to Certain Sealed Court Records, 585 F. Supp. 2d
83, 94 (D.D.C. 2008) (granting access to sealed search warrants, warrant applications and
supporting materials under the First Amendment).

For the same reasons set forth above in respect to the common law right, the First Amendment
right of access to the Materials is not overcome by any countervailing interest. Where the First
Amendment applies, it can be ?overcome only by an overriding interest based on ?nding that
[scaling] is essential to preserve higher values and is narrowly tailored to serve the interest.?
Press-Enterprise Co. v. Superior Court of California, 464 US. 501, 510 (1984); see also
Lugosch, 435 F.3d at 124 (citing In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987)).
That is a heavier burden than the one imposed by the common law. Lugosch, 435 F.3d at 126.

CONCLUSION

For all of the foregoing reasons, The Times respectfully requests that the Materials be made
public, or, alternatively, that the Government and Mr. Cohen be required to demonstrate why the
records should remain under seal. If they seek to do so, The Times respectfully requests an
opportunity to reply and otherwise be heard.

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We thank the Court for its consideration of this matter.

submitted,

a. 1' 




David E. McCraw

cc: Counsel of Record (by email)

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