Nos. 18A669, 18M93 & 18-948

IN THE

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IN RE GRAND JURY SUBPOENA

ON APPLICATION FOR A STAY AND MOTION FOR
LEAVE TO FILE A PETITION FOR A WRIT OF
CERTIORARI UNDER SEAL

REPLY IN SUPPORT OF MOTION TO INTERVENE

AMIR C. TAYRANI
AARON SMITH*
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
(202) 955.8500
*Admitted only in Alabama

THEODORE J. BOUTROUS
Counsel of Record
THEANE EVANGELIS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
(213) 229.7000
tboutrous@gibsondunn.com

LEE ROSS CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166-0193
(212) 351.4000

EMILY RIFF
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
(303) 298.5700

Counsel for Proposed Intervenor Reporters Committee for
Freedom of the Press
January 28, 2019

 The Reporters Committee for Freedom of the Press (the “Reporters Committee”)
is a nonprofit organization dedicated to defending the First Amendment and the
newsgathering rights of journalists and the public.1

On January 9, 2019, the

Reporters Committee moved for leave to intervene in this matter for the purpose of
filing a Motion to Unseal. Petitioner has not opposed intervention. On January 25,
2019, the government filed a response in this Court, opposing the Reporters
Committee’s Motion to Intervene.2 The Reporters Committee respectfully submits
this reply in further support of its Motion.
Although the Reporters Committee appreciates the government’s agreement that
broad swaths of these previously blanket-sealed proceedings need not be sealed,
Opp’n to Mot. to Intervene at 2-3 (filed Jan. 25, 2019) (“Opposition”), intervention is
warranted here despite that agreement. Neither of the parties to these proceedings
has an interest in protecting the public’s right of access—and, in fact, the government
denies that the public has any right of access at all, Opposition at 2. Because the
Reporters Committee is a third party and has a longstanding and demonstrated
interest in protecting the public’s right of access, the Reporters Committee can serve

1

Pursuant to Rule 29.6 of the Rules of this Court, the Reporters Committee discloses that it is an
unincorporated nonprofit association of reporters and editors with no parent corporation and no
stock.

2

The government’s opposition appears untimely, as it was filed sixteen days after the Reporters
Committee moved to intervene. See Sup. Ct. R. 21(4) (“Any response to a motion shall be filed as
promptly as possible . . . , and, in any event, within 10 days of receipt, unless the Court or a
Justice, or the Clerk under Rule 30.4, orders otherwise.”). Because the identity of the parties to
these proceedings was sealed at that time, the Reporters Committee was unable to effectuate
service itself on the date of filing. The Motion to Intervene was placed on the public, electronic
docket on January 15, 2019, but the Reporters Committee is unsure whether the Clerk’s Office
provided notice of the Motion to the parties at an earlier date.

1

 as a “surrogate[] for the public.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 573 (1980). The Reporters Committee “asserts a right directly and substantially
related to the litigation, a right of access to court proceedings and documents born of
the common law and the First Amendment.” Jessup v. Luther, 227 F.3d 993, 998 (7th
Cir. 2000). For that reason, the lower courts have long conceived of intervention as
the preferred mechanism to protect the “longstanding tradition of public access to
court records.” E.E.O.C. v Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir.
1998) (quotation marks omitted); Mot. to Intervene at 5-6 (collecting cases).
Intervention is particularly appropriate so that the Reporters Committee can
challenge specific redactions by the parties that do nothing to further the
government’s claimed interest in maintaining the secrecy of a matter occurring before
a grand jury. Although this Court can direct that the parties file public, redacted
versions of materials, the parties have no incentive to propose the narrowly tailored
redactions the Constitution and common law require. Nor are the parties likely to
challenge each other’s proposed redactions. Permitting intervention by a third party
that can stand in for the public’s interest will promote community respect for the rule
of law by ensuring that proposed redactions in this proceeding are tested in the
crucible of adversarial proceedings. Simply put, a third party can ensure that any
redactions in this case—one that has garnered significant public attention—are
narrowly tailored.
Any redactions the parties propose should be rigorously scrutinized, particularly
given the parties’ longstanding penchant for over-sealing—one that has continued
2

 even in the most recent filings before this Court. For instance, the public version of
the Petition for a Writ of Certiorari filed in this case inexplicably redacts the names
of the attorney(s) and law firm representing Petitioner. Redacted Pet. for a Writ of
Cert. 38 (public version filed Jan. 22, 2019). Notwithstanding those redactions, the
government has revealed Petitioner’s counsel’s name (and law firm) to counsel for the
Reporters Committee.

Specifically, when the government served by email its

response to the Reporters Committee’s Motion to Intervene, the government cc’d
Petitioner’s attorney. Rather than objecting to this revelation, Petitioner’s counsel
responded to the full email group and acknowledged receipt. Based on these emails,
counsel for the Reporters Committee now knows the names of the law firm and
counsel representing Petitioner in this case despite the over-redacted Petition. The
parties plainly do not believe that there is a compelling reason under Federal Rule of
Criminal Procedure 6(e) or otherwise to keep secret the identity of Petitioner’s
counsel, having revealed it to a non-party public interest group whose mission
includes ensuring public access to and public dissemination of information. This
disclosure alone warrants unsealing. See In re Motions of Dow Jones & Co., 142 F.3d
496, 505 (D.C. Cir. 1998) (noting that where “attorney decided to reveal” name of
“person subpoenaed to appear before the grand jury,” such information was “no longer
a secret”).
Moreover, no party has justified publicly why the disclosure of Petitioner’s own
identity to the public would harm the secrecy of a matter occurring before the grand
jury—particularly where contempt sanctions have been imposed by the district court
3

 and affirmed by the court of appeals. Nor is the government likely to offer such an
explanation unless the Reporters Committee is permitted to intervene and litigate
the core questions presented in its proposed Motion to Unseal, as the government
denies any First Amendment or common law right of access exists here. Opposition
at 2. As the Reporters Committee explained, there is a longstanding history in this
country that contempt proceedings and appellate proceedings are open to public
access. See Proposed Mot. to Unseal at Arg. Pt. I.A-I.B. The parties therefore must
justify why redacting the name of the company now held in contempt is narrowly
tailored to protect a matter occurring before a grand jury—or any other compelling
governmental interest. See Proposed Mot. to Unseal at Arg. Pt. I.C.
Finally, neither party identifies any cognizable prejudice that it would face if this
Court permits intervention. Nor could they. The Reporters Committee agrees that
preventing the disclosure of a matter occurring before a grand jury is a compelling
governmental interest and that narrowly-tailored redactions in support of that aim
are generally permissible. By challenging specific, unnecessary redactions in the
parties’ proposed public versions of filings, the Reporters Committee will cause no
prejudice to any party, cause no undue delay, and will not threaten any asserted
interest in maintaining the secrecy of a matter occurring before a grand jury. By
contrast, the public’s interest—one the Reporters Committee is well-suited to
protect—is indisputably harmed when redactions that do not serve any compelling
interest are left unchallenged. See, e.g., Grove Fresh Distribs., Inc. v. Everfresh Juice
Co., 24 F.3d 893, 897 (7th Cir. 1994) (noting that when disclosure is appropriate
4

 "access should be immediate and contemporaneous" because the "newsworthiness of
a particular story is often fleeting" and "[e]ach passing day" that disclosure is delayed
"may constitute a separate and cognizable infringement of the First Amendment"
(quotation marks omitted)), superseded by rule on other grounds as stated in Bond v.

Utreras, 585 F.3d 1061 (7th Cir. 2009).
For the foregoing reasons, the Reporters Committee respectfully requests that
this Court grant the Motion to Intervene.

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Respectfully submitted.

AMIR C. TAYRANI
AARON SMITH*
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
(202) 955.8500
*Admitted only in Alabama

THEODORE J. BOUTROUS
Counsel of Record
THEANE EVANG ELIS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
(213) 229.7000
tboutrous@gibsondunn.com

LEE ROSS CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166-0193
(212) 351.4000

EMILY RIFF
GIBSON, DUNN & CRUTCHER L:f,,P
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
(303) 298.5700

Counsel for Proposed Intervenor
Reporters Committee for Freedom of the Press
January 28, 2019

5

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