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ARGUED DECEMBER 14, 2018
NO. 18-3071
_______________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________________________________________
IN RE GRAND JURY SUBPOENA
_______________________________________________________________
Appeal from the United States District Court for the District of Columbia
No. 1:18-mj-0041
_______________________________________________________________
MOTION TO UNSEAL
_______________________________________________________________
LEE ROSS CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York City, York 10166-0193
(212) 351.4000
EMILY RIFF
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
(303) 298-5700

THEODORE J. BOUTROUS
Counsel of Record
THEANE EVANGELIS
GIBSON, DUNN &
CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 900713197
(213) 229.7000
tboutrous@gibsondunn.com
BRUCE D. BROWN
KATIE TOWNSEND
REPORTERS COMMITTEE
FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1020
Washington, DC 20005
Phone: 202.795.9300
Facsimile: 202.795.9310

Counsel for Movant Reporters Committee for Freedom of the Press

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TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT OF FACTS ........................................................................................3
I.

This Action Commences Without Public Access. ................................3

II.

This Court Closes Public Access to the Appellate Proceedings. ..........4

III.

This Court Publishes an a Judgment and Redacted Opinion
Revealing Additional Detail About the Case. .......................................5

ARGUMENT .............................................................................................................7
I.

II.

The First Amendment Renders Overbroad this Appeal’s Blanket
Seal. .......................................................................................................7
A.

The Public Has a First Amendment Right of Access to
Appellate Proceedings. ...............................................................8

B.

The Public Has a Right of Access to Contempt Proceedings. ..12

C.

Particularly Where this Court’s Opinion was Filed Publicly,
Blanket Sealing of these Proceedings Cannot Serve Any
Compelling Governmental Interest. ..........................................18

Blanket Sealing of the Record, Briefs, and Argument Transcripts
in this Contempt Appeal Violates the Common Law Right of
Access. .................................................................................................20

CONCLUSION ........................................................................................................23

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TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Cryovac Inc.,
805 F.2d 1 (1st Cir. 1986) ................................................................................... 21
In re Capital Cities/ABC, Inc.’s
Application for Access to Sealed Transcripts, 913 F.2d 89 (3d Cir.
1990) ................................................................................................................... 18
Carducci v. Regan,
714 F.2d 171 (D.C. Cir. 1983) ............................................................................ 10
Dhiab v. Trump,
852 F.3d 1087 (D.C. Cir. 2017) .......................................................................... 14
Doe v. Mattis,
889 F.3d 745 (D.C. Cir. 2018) ......................................................................10, 20
Doe v. Pub. Citizen,
749 F.3d 246 (4th Cir. 2014) ................................................................................ 8
Douglas Oil Co. v. Petrol Stops Nw.,
441 U.S. 211 (1979) ......................................................................................15, 16
Ex parte Drawbaugh,
2 App. D.C. 404 (1894) ........................................................................................ 9
EEOC v. Nat’l Children’s Ctr., Inc.,
98 F.3d 1406 (D.C. Cir. 1996) ......................................................................22, 23
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ........................................................................................7, 18
In re Grand Jury Matter,
906 F.2d 78 (3d Cir. 1990) ................................................................................. 15
In re Grand Jury Subpoena, Judith Miller,
438 F.3d 1138 (D.C. Cir. 2006) ............................................................................ 8
In re Grand Jury Subpoena, Judith Miller,
493 F.3d 152 (D.C. Cir. 2007) ............................................................................ 19
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TABLE OF AUTHORITIES
(continued)
Page(s)
Grosjean v. Am. Press Co.,
297 U.S. 233 (1936) ............................................................................................ 11
Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821 (1994) ................................................................................14, 15, 17
In re Iowa Freedom of Info. Council,
724 F.2d 658 (8th Cir. 1983) .............................................................................. 15
In re Knight Publ’g. Co.,
743 F.2d 231 (4th Cir. 1984) .............................................................................. 20
In re Krynicki,
983 F.2d 74 (7th Cir. 1992) ............................................................................9, 10
Levine v. United States,
362 U.S. 610 (1960) ..................................................................................2, 14, 17
Metlife, Inc. v. Fin. Stability Oversight Council,
865 F.3d 661 (D.C. Cir. 2017)............................................................8, 10, 21, 22
In re Motions of Dow Jones & Co.,
142 F.3d 496 (D.C. Cir. 1998) .....................................................................passim
Mueller v. Raemisch,
740 F.3d 1128 (7th Cir. 2014) ............................................................................ 11
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,
684 F.3d 286 (2d Cir. 2012) .........................................................................13, 14
In re N.Y. Times Co.,
828 F.2d 110 (2d Cir. 1987) ................................................................................. 8
N.Y. Times Co. v. United States,
403 U.S. 944 (1971) .............................................................................................. 9
Newsday LLC v. Cty. of Nassau,
730 F.3d 156 (2d Cir. 2013) .........................................................................14, 15

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TABLE OF AUTHORITIES
(continued)
Page(s)
In re Oliver,
333 U.S. 257 (1948) ............................................................................................ 14
Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) .....................................................................................passim
Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) .............................................................................................. 7, 8
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ............................................................................................ 12
S. Union Co. v. United States,
567 U.S. 343 (2012) ............................................................................................ 17
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ............................................................................ 12
In re Sealed Case,
124 F.3d 230 (D.C. Cir. 1997) ............................................................................ 13
In re Sealed Case,
199 F.3d 522 (D.C. Cir. 2000) ............................................................................ 13
Ex parte Terry,
128 U.S. 289 (1888) ............................................................................................ 14
United States v. Hubbard,
650 F.2d 293 (D.C. Cir. 1980) ......................................................................21, 22
United States v. Amodeo,
71 F.3d 1044 (2d Cir. 1995) ............................................................................... 11
United States v. Doe,
356 F. App’x 488 (2d Cir. 2009) ........................................................................ 20
United States v. El-Sayegh,
131 F.3d 158 (D.C. Cir. 1997) ......................................................................20, 21

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TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Index Newspapers LLC,
766 F.3d 1072 (9th Cir. 2014) ......................................................................15, 17
United States v. Moussaoui,
65 F. App’x 881 (4th Cir. 2003) ........................................................................... 9
Washington Post v. Robinson,
935 F.2d 282 (D.C. Cir. 1991) ..............................................................7, 8, 13, 19
Wilson v. Am. Motors Corp.,
759 F.2d 1568 (11th Cir. 1985) .......................................................................... 11
Rules
U.S. Const., amend I .........................................................................................passim
Rules
Federal Rule of Criminal Procedure 6(e)(5) ............................................................ 16

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MOTION TO UNSEAL
The Reporters Committee for Freedom of the Press (the “Reporters
Committee” or “RCFP”) is a nonprofit association dedicated to defending the First
Amendment and newsgathering rights of journalists, including by vindicating the
public’s constitutional and common law rights of access to judicial proceedings
and court records. Pursuant to Circuit Rule 47.1(c), the Reporters Committee
respectfully moves the Court to unseal the briefs, the record, and the oral argument
transcripts in this appeal.
INTRODUCTION
This Court’s judgment and opinion affirming the contempt order in this
appeal were rightly filed publicly. For the first time in this litigation, the Court
permitted the public to understand the nature of these proceedings—including the
imposition of apparently hefty monetary fines—the arguments the parties had
advanced, a limited and tailored account of the underlying facts, and the outcome.
But public access to the documents supporting a decision—briefs, oral
argument transcript, and record—is just as important as public access to the
decision itself. As the Chief Justice has explained, the judiciary is “the most
transparent branch in government.” Chief Justice John G. Roberts, Remarks at
2018 Federal Judicial Conference of the Fourth Circuit (June 29, 2018). At

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present, however, with the exception of the Court’s judgment and a redacted
version of its opinion, the record in this appeal remains sealed.
The public unquestionably has a right of access to appellate proceedings,
which can only be overcome if, and to the extent that, sealing is necessary to serve
a compelling governmental interest. One possible justification for sealing portions
of the appellate record here may be preservation of grand jury secrecy. That
interest is compelling but not alone sufficient to abrogate the public’s right of
access to all documents, including the oral argument transcript, in this appeal.
Even contempt proceedings—including those arising from grand jury
investigations—are presumed open to public scrutiny, Levine v. United States, 362
U.S. 610, 616 (1960), just like appellate proceedings. The presumption that the
public has a right to access and observe appellate litigation in our nation’s courts is
thus no less robust where the appeal is from a district court order of contempt.
Even though this case was litigated entirely in secret from the beginning
until this Court issued its judgment, this Court appropriately recognized that the
public’s right of access outweighs whatever governmental interest the parties had
presented to justify their months-long blanket seal of these proceedings. This
Court’s public filings make clear that continued blanket sealing of the record
simply cannot be justified.

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The Reporters Committee therefore brings this motion to unseal, because the
First Amendment and common law rights of access to this Court’s proceedings and
records require at least some form of publicly accessible documents in this dispute.
RCFP respectfully requests that this Court direct that public, redacted versions of
the briefs and record in this appeal and a redacted oral argument transcript be filed.
STATEMENT OF FACTS
I.

This Action Commences Without Public Access.
This case commenced in the district court in August 2018. The case—

including its docket—was filed entirely under seal. No. 1:18-gj-00041 (D.D.C.
Aug. 18, 2018). In September 2018, the district court issued a secret ruling, which
was appealed. No. 18-3068 (D.C. Cir. Sept. 25, 2018). This Court dismissed that
appeal for lack of jurisdiction on October 3, 2018. Id. One week later, a new
appeal (the instant one) ensued from the same district court case. No. 18-3071
(D.C. Cir. Oct. 10, 2018).
Almost immediately, these proceedings captured the public’s and press’s
attention. See Katelyn Polantz, et al., Mystery Mueller mayhem at a Washington
court, CNN (Dec. 15, 2018), https://www.cnn.com/2018/12/14/politics/muellergrand-jury-mysterious-friday/index.html (“Polantz, Mystery”) (reporting on
courthouse activity contemporaneously with district court proceedings); Josh
Gerstein & Darren Samuelsohn, Mueller link seen in mystery grand jury appeal,
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Politico (Oct. 24, 2018), https://www.politico.com/story/2018/10/24/muellerinvestigation-grand-jury-roger-stone-friend-938572; Michael S. Schmidt, Mueller
Is Fighting a Witness in Court. Who Is It?, N.Y. Times (Dec. 15, 2018),
https://www.nytimes.com/2018/12/15/us/politics/special-counsel-subpoena.html.
II.

This Court Closes Public Access to the Appellate Proceedings.
“More than a dozen reporters” planned to attend oral argument on December

14, or—because it was sealed—report on the matter from public areas of the
courthouse surrounding the courtroom. Darren Samuelsohn & Josh Gerstein,
Reporters shooed away as mystery Mueller subpoena fight rages on, Politico, Dec.
14, 2018, https://www.politico.com/story/2018/12/14/mystery-mueller-subpoenafight-1065409. But the reporters were “shooed away,” and the Court sealed not
only the courtroom, but the entire courthouse floor. Id. Subsequently, “at least 20
journalists” spread out around the courthouse and pooled their resources to
communicate about who and what they saw throughout the building. Zoe Tillman,
There Was Drama At Court Today And Maybe It Involved Mueller’s Investigation
But Who Knows, BuzzFeed (Dec. 14, 2018),
https://www.buzzfeednews.com/article/zoetillman/robert-mueller-sealed-grandjury-court-drama.
The removal of the public from the entire floor where the oral argument
occurred “surprised many people familiar with the federal building’s practices.”
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Samulsohn & Gerstein, Reporters Shooed Away. The decision was called
“unusual,” id., and “extreme,” Polantz, Mystery.
III. This Court Publishes an a Judgment and Redacted Opinion Revealing
Additional Detail About the Case.
Four days after oral argument, this Court issued an unsealed three-page
judgment, providing some factual and legal information about the proceedings.
No. 18-3071 (D.C. Cir. Dec. 18, 2018) (“Op.”). The judgment affirmed the district
court’s order holding a foreign-owned company (the “Corporation”) in contempt,
with monetary fines increasing each day it refused to comply. Op. 1.
In the judgment, this Court rejected the Corporation’s argument that it was
immune from a grand jury subpoena under the Foreign Sovereign Immunities Act.
The Court reviewed the government’s sealed and ex parte submissions, concluding
that the subpoena fell within the Act’s exception for commercial activities. Op. 23. This Court also held that it had subject matter jurisdiction, rejecting the
Corporation’s written arguments and “a new theory” introduced at oral argument.
Op. 2. Finally, this Court concluded it was “unconvinced that Country A’s law
truly prohibits the Corporation from complying with the subpoena.” Op. 3. While
not revealing what laws were at issue, this Court stated “[t]he text of the foreign
law provision the Corporation relies on does not support its position” and the
Corporation’s submissions (including from a foreign regulator) “lack[ed] critical
indicia of reliability.” Id.
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The judgment deepened public interest in this matter, offering “tantalizing
clues to a mystery that has riveted Washington journalists and legal insiders.”
Charlie Savage, Washington’s Mystery Witness Turns Out to Be a Corporation,
N.Y. Times (Dec. 18, 2018),
https://www.nytimes.com/2018/12/18/us/politics/mystery-witness-corporationrobert-mueller.html. But the clues only continued the “guessing game”
surrounding the case. Devlin Barrett, Prosecutors win court fight over secret
subpoena of a foreign company, Wash. Post (Dec. 18, 2018),
https://www.washingtonpost.com/world/national-security/prosecutors-win-courtfight-over-secret-subpoena-of-a-foreign-company/2018/12/18/b56dafac-031511e9-b5df-5d3874f1ac36_story.html?utm_term=.098ccd82d846.
On December 22, 2018, the Corporation applied to the Supreme Court for a
stay of the contempt ruling and for leave to file its application under seal. The next
day, Chief Justice Roberts temporarily stayed the contempt order, “including the
accrual of monetary penalties,” pending the filing of a response and further order.
In re Grant Jury Subpoena, Applicant, No. 18A669 (S. Ct. Dec. 23, 2018). On
December 28, an unidentified party responded to the application, and the applicant
replied on January 2, 2019. All documents remain sealed.
On January 7, 2019, an undisclosed party moved for leave to file a petition
for writ of certiorari under seal with redacted copies for the public record. In re
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Grand Jury Subpoena, No. 18M93 (docketed Jan. 8, 2019). That motion remains
pending and does not appear to be publicly available. On January 8, 2019, the
Supreme Court denied the stay application. That same day, this Court issued a 28page, redacted opinion, expanding on its earlier judgment.
ARGUMENT
I.

The First Amendment Renders Overbroad this Appeal’s Blanket Seal.
The First Amendment creates a presumptive “right of access” to a wide

range of judicial proceedings. Press-Enterprise Co. v. Superior Court, 478 U.S. 1
(1986) (“Press-Enterprise II”) (preliminary hearings); Press-Enterprise Co. v.
Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I”) (voir dire); Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (criminal trials). Building
on these seminal cases, this Court declared that “[t]he first amendment guarantees
the press and the public a general right of access to court proceedings and court
documents unless there are compelling reasons demonstrating why it cannot be
observed.” Washington Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991).
“[T]wo complementary considerations” govern whether a particular judicial
proceeding is subject to the First Amendment presumption of access. PressEnterprise II, 478 U.S. at 8. The first is “whether the place and process have
historically been open to the press and general public.” Id. The second is
“whether public access plays a significant positive role in the functioning of the
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particular process in question.” Id. Where a qualified right of access exists, “the
proceedings cannot be closed unless specific, on the record findings are made
demonstrating that ‘closure is essential to preserve higher values and is narrowly
tailored to serve that interest.’” Id. at 13-14 (citation omitted).
Here, the public has a qualified First Amendment right of access to this
appeal. Where a court can file a fully reasoned, redacted opinion, briefs, the
record, and the oral argument transcript can be similarly accessible. This Court
should direct the public filing of redacted versions of the briefs, the record, and the
oral argument transcript in this appeal.
A.

The Public Has a First Amendment Right of Access to Appellate
Proceedings.

The First Amendment “guarantees” a “right of access to...court documents,”
Washington Post, 935 F.2d at 287, and no “court documents” are more central to
the appellate process than the oral argument transcript, briefs, and record sought by
this motion. See Doe v. Pub. Citizen, 749 F.3d 246, 267-68 (4th Cir. 2014) (noting
that right applies “to materials submitted in conjunction with judicial proceedings
that themselves would trigger the right of access.”); In re N.Y. Times Co., 828 F.2d
110, 114 (2d Cir. 1987). Accordingly, the briefs and the record—the source
material from which a court draws to perform its Article III duty to decide cases
and controversies—are subject to a right of access. See Metlife, Inc. v. Fin.
Stability Oversight Council, 865 F.3d 661, 667-69 (D.C. Cir. 2017) (right of access
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attached to briefs and joint appendix). “If the public is to see our reasoning, it
should also see what informed that reasoning.” In re Grand Jury Subpoena, Judith
Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006).
Unsurprisingly, public access to appellate documents extends far back in this
Court’s history. In Ex parte Drawbaugh, for example, this Court rejected an
appellant’s attempt to seal the records in a patent appeal because an “attempt to
maintain secrecy, as to the records of this court, would seem to be inconsistent
with the common understanding of what belongs to a public court of record, to
which all persons have the right of access, and to its records, according to long
established usage and practice.” 2 App. D.C. 404, 407-08 (1894).
Likewise, “[t]here can be no question that the First Amendment guarantees a
right of access by the public to oral arguments in the appellate proceedings of th[e]
court” because oral arguments “have historically been open to the public, and the
very considerations that counsel in favor of openness of criminal trial support a
similar degree of openness in appellate proceedings.” United States v. Moussaoui,
65 F. App’x 881, 890 (4th Cir. 2003); In re Krynicki, 983 F.2d 74, 76 (7th Cir.
1992) (“Public argument is the norm.”).
This principle of openness has not abated even despite the strongest
countervailing interests. See N.Y. Times Co. v. United States, 403 U.S. 944 (1971)
(denying motion “to conduct part of the oral arguments involving [Pentagon
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Papers-related] matters in camera”). In a case involving national security interests,
for example, this Court held a bifurcated oral argument and published redacted
briefs, because of the “presumption of public access to judicial proceedings.” Doe
v. Mattis, 889 F.3d 745, 751 (D.C. Cir. 2018); id. at Apr. 5, 2018 Dkt. Entry.
By the logic of Press-Enterprise, the public’s right of access to briefs,
arguments, and records promotes judicial legitimacy and allows the public to learn
of and understand significant issues of public concern. Judges “claim
legitimacy...by reason.” In re Krynicki, 983 F.2d at 75. Although they “deliberate
in private,” they “issue public decisions after public arguments based on public
records.” Id. The public needs the entire triumvirate: “[a]ny step that withdraws
an element of the judicial process from public view makes the ensuing decision
look more like fiat.” Id.
Thus, publishing an opinion, but keeping briefs and record under seal, does
not “maintain[] the integrity and legitimacy of an independent Judicial Branch.”
Metlife, 865 F.3d at 663. “Without access to the sealed materials, it is impossible
to know which parts of those materials persuaded the court and which failed to do
so (and why).” Id. at 668. Knowing what materials persuaded the Court is
essential: Courts do “not sit as self-directed boards of legal inquiry and research,
but essentially as arbiters of legal questions presented and argued by the parties
before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Citizens
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who cannot see the underlying briefing or arguments will have more difficulty
trusting the result, thereby undermining judicial legitimacy.
The right of access to appellate proceedings also promotes the public’s
understanding of issues of public concern. The First Amendment ensures “an
informed and enlightened public,” Grosjean v. Am. Press Co., 297 U.S. 233, 247
(1936), because a “people who mean to be their own Governors, must arm
themselves with the power which knowledge gives,” Letter from James Madison to
W. T. Barry, August 4, 1822, 9 Writings of James Madison 103 (Hunt ed. 1910).
When parties litigate to the highest courts in the land on a matter of intense public
interest with only the court’s final decision available for the citizenry to see, the
public is denied information it needs “to appreciate fully the [] significant events at
issue in public litigation and the workings of the legal system.” Wilson v. Am.
Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985).
Here, this Court’s decision is public, but the broader record’s blanket
“[s]ecrecy makes it difficult for the public (including the bar) to understand the
grounds and motivations of a decision, why the case was brought (and fought), and
what exactly was at stake in it.” Mueller v. Raemisch, 740 F.3d 1128, 1135-36
(7th Cir. 2014); see also United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.
1995) (observing that public monitoring of the courts “is not possible without
access to…documents that are used in the performance of Article III functions”).
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The decision rejects the Corporation’s written and oral arguments, Op. 2-3, its
apparently “[un]reliab[le]” “submissions,” Op. 3, and upholds the district court’s
sanction, Op. 1. But by keeping all but the finished products under wraps, the
courts ask the public “to accept what they are prohibited from observing.”
Richmond Newspapers, Inc. v. Virginia,, 448 U.S. 555, 572 (1980) (opinion of
Burger, C.J.).
B.

The Public Has a Right of Access to Contempt Proceedings.

That this appeal arises out of contempt proceedings does not eradicate the
First Amendment right. Grand jury secrecy is, to be sure, a compelling interest. In
some circumstances, therefore, the presumption of public access yields because
access would “almost invariably reveal matters occurring before the grand jury.”
In re Motions of Dow Jones & Co., 142 F.3d 496, 502 (D.C. Cir. 1998). But the
presumption is maintained when a party seeks, as the Reporters Committee does
here, a more modest goal: to access the briefs, record, and argument transcript
underlying a public judgment and opinion. See id. at 500 (noting Local Rule 302
authorizes access to “pleadings and papers” and comports with public’s
“constitutional claim” of access). Access to these documents does not run similar
risks. See, e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), Dkt. Entry Aug.
25, 1997 (unsealing “the briefs filed by the parties” because media company did
not seek “access to the subpoenas themselves” or “any other [documents] which
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would reveal” grand jury matters); In re Sealed Case (“Dow Jones II”), 199 F.3d
522 (D.C. Cir. 2000) (public argument); In re Sealed Case, 124 F.3d 230 (D.C.
Cir. 1997), rev’d sub nom. Swidler & Berlin v. United States, 524 U.S. 399 (1998),
Dkt. Entry Jan. 12, 1998 (granting “motion to unseal the transcript of oral
argument” that was conducted in camera), Dkt. Entry Apr. 23, 1998 (granting
“motion to unseal a portion of the record”). Under the Press-Enterprise test,
history and logic dictate that a right of public access applies to the contempt
proceedings at issue here.
The right of access to contempt proceedings begins with the indisputable
right of access to criminal trials. Since the Norman Conquest, public criminal
trials have allowed “people not actually attending [to] have confidence that
standards of fairness are being observed … and that deviations will become
known.” Press-Enterprise I, 464 U.S. at 508. “Openness thus enhances both the
basic fairness of the criminal trial and the appearance of fairness so essential to
public confidence in the system.” Id. (citation omitted).
Following this historic tradition, courts have declared that the public has a
qualified First Amendment right of access to numerous types of judicial
proceedings. The right applies to nearly all facets of a criminal trial. See, e.g.,
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 297-98 (2d Cir.
2012) (collecting cases); see also Wash. Post, 935 F.2d 282 (public access to plea
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agreements). And “[e]very circuit to consider the issue has concluded that” that
same “right of public access applies to civil” proceedings, too. Dhiab v. Trump,
852 F.3d 1087, 1099 (D.C. Cir. 2017) (Rogers, J., concurring in part and
concurring in the judgment) (collecting cases).
Given the opacity of the record to date, it remains unclear what type of
penalty—civil or criminal—the district court imposed here. See Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 830-31 (1994) (noting the
“elusive distinction between criminal and civil contempt fines”); compare Op. 1
(noting penalty that appears to be civil), with Op. 2 (discussing the ability of a
foreign sovereign “to raise an immunity defense in a criminal case”). If anything,
that opacity simply underscores the need for greater access.
In any event, the “First Amendment ‘does not distinguish between criminal
and civil proceedings.’” Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d
Cir. 2013) (quoting NY Civil Liberties Union, 684 F.3d at 298) (holding that public
right of access applies to civil contempt proceedings). There is a long history of
requiring that contempt proceedings be public to check a court’s power, which can
be “arbitrary in its nature and liable to abuse.” Levine, 362 U.S. at 615 (citing Ex
parte Terry, 128 U.S. 289, 313 (1888)); In re Oliver, 333 U.S. 257, 265-73 (1948).
Because the distinction between civil and criminal contempt is “elusive” and often
without a difference, see Int’l Union, 512 U.S. at 830-31, numerous courts have
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held that the public’s right of access applies equally to civil and criminal contempt
proceedings. United States v. Index Newspapers LLC, 766 F.3d 1072, 1092 (9th
Cir. 2014) (unsealing civil contempt docket, while “consider[ing] any redactions
the government may request”); Newsday LLC, 730 F.3d at 164; In re Iowa
Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983); see also In re Grand
Jury Matter, 906 F.2d 78, 86-87 (3d Cir. 1990) (holding that right attaches where
incarceration is a possible penalty); cf. Dow Jones, 142 F.3d at 502, 506 (directing
district court to consider what redacted documents could be publicly filed in grandjury subpoena litigation). Contempt proceedings that arise from grand jury
investigations are not immune, either, from the public’s right of access. Index
Newspapers LLC, 766 F.3d at 1095-97. Because criminal and “civil contempt
proceedings ... carry the threat of coercive sanctions,” the right of public access
attaches equally to both proceedings. Newsday LLC, 730 F.3d at 164.
And logic makes clear why public access to grand jury contempt
proceedings in particular causes no injury, as a general matter, to grand jury
secrecy. Grand jury secrecy really represents four “distinct interests.” Douglas
Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218-19 (1979). Those four interests are
that, in the absence of secrecy, (1) witnesses might not come forward, “knowing
that those against whom they testify would be aware” of their testimony; (2)
because of this same fear of retribution, witnesses who do appear “would be less
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likely to testify fully and frankly”; (3) individuals about to be indicted “would flee
or would try to influence individual grand jurors to vote against indictment”; and
(4) persons accused, but ultimately “exonerated by the grand jury,” might be “held
up to public ridicule.” Id at 219.
If anything, recognition of the public’s right of access to contempt
proceedings serves these interests. Allowing tailored public access will encourage
a reticent witness to comply with a grand jury investigation by making clear the
potential penalties for failing to do so. Such a witness would even be less likely to
flee, because the penalty for flight is being held in contempt. Moreover, the
witness’s identity could be preserved through redaction if necessary, see infra Pt.
I.C. Likewise, any risk that a vindicated accused could be “ridicule[d]” can be
mitigated through appropriate, limited redactions, see infra at Pt. I.C.
The Federal Rules of Criminal Procedure underscore that the source of this
appeal—a grand-jury contempt order—does not minimize the public’s right of
access to it. In fact, Rule 6(e)(5) acknowledges that sealing contempt proceedings
is “subject to any right to an open hearing,” and that district courts “must close any
hearing” only “to the extent necessary to prevent disclosure of the matter occurring
before the grand jury.” Rule 6(e)(5) thus codifies the public right of access to
contempt proceedings, recognizing that such a right can be rebutted as
“necessitated” to justify the compelling interest of preserving grand jury secrecy.
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See Press-Enterprise I, 464 U.S. at 510. Blanket sealing of all proceedings—
hardly the least-restrictive means available, see infra Pt. I.C—cannot possibly be
“necessitated,” here, particularly after release of this Court’s judgment and more
fulsome, redacted opinion.
“Public access” to contempt proceedings “provides a check on the process
by ensuring that the public may discover when a witness has been held in contempt
and held in custody.” Index Newspapers, 766 F.3d at 1093; see Levine, 362 U.S. at
615-16.1 And contempt proceedings may well be attenuated from the actual
content of a grand jury investigation, meaning that “[l]ogic favors greater public
access to these transcripts and filings because they are less likely to disclose
sensitive matters relating to the grand jury’s investigation.” Index Newspapers,
766 F.3d at 1094-95 (discussing filings regarding continued confinement
proceedings). At bottom, there can be no question that the public has a right of
access to contempt proceedings. There can thus be no doubt that the public has a

1

It is of no moment that the Corporation was not incarcerated. Any argument that
a qualified right of access can never apply to monetary penalties would require
the conclusion that the public never has a right of access to any corporate
contempt proceeding because corporations cannot be jailed. Likewise, monetary
penalties can have serious implications and unquestionably cannot be imposed
without constitutional safeguards. See Int’l Union, 512 U.S. at 831-32; cf. S.
Union Co. v. United States, 567 U.S. 343, 360 (2012) (holding that Apprendi
applies to criminal fines).
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right of access to the briefs submitted in this appeal and to the oral argument
transcript.
C.

Particularly Where this Court’s Opinion was Filed Publicly,
Blanket Sealing of these Proceedings Cannot Serve Any
Compelling Governmental Interest.

The public’s First Amendment right of access to contempt proceedings does
not mandate disclosure of the entire record in and of itself—nor does RCFP request
such relief. The “presumption of openness,” Press-Enterprise I, 464 U.S. at 510, is
just that—a presumption. But where the government “‘attempts to deny the right
of access in order to inhibit the disclosure of sensitive information, it must be
shown that the denial is necessitated by a compelling governmental interest, and is
narrowly tailored to serve that interest.’” Id. (quoting Globe Newspaper Co., 457
U.S. at 606-07). “The interest is to be articulated along with findings specific
enough that a reviewing court can determine whether the closure order was
properly entered.” Id.
At this stage in this appeal, there have been no public findings made to
articulate why the briefs, record, and oral argument transcript must be withheld
wholesale, so the Reporters Committee’s ability to challenge the blanket sealing of
the proceeding—or any portion thereof, for that matter—is limited. See In re
Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d
89, 95 (3d Cir. 1990) (noting that party moving to unseal “was at a severe
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disadvantage” because the movant “had absolutely no information concerning [the
documents’] particular subject matter” or the “government interests”).
Nonetheless, there is no compelling interest to withhold the parties’ briefs and oral
argument transcripts in toto. Indeed, that this Court could file a judgment and
redacted version of its opinion publicly, outlining the parties’ legal arguments and
at least part of the underlying factual circumstances of the appeal, demonstrates
that at least some portions of the proceedings may be open to public view without
jeopardizing any compelling governmental interest in grand jury secrecy, or
otherwise.
Because at least some portions of this record can “only...confirm to the
public what [is] already validated by [] official source[s],” keeping such
information under seal can hardly be justified by any “compelling interest” and
thus must be disclosed. Wash. Post, 935 F.2d at 292; In re Grand Jury Subpoena,
Judith Miller, 493 F.3d 152, 154-55 (D.C. Cir. 2007) (ordering the “release” of
“those redacted portions of [the] concurring opinion and the two ex parte affidavits
that discuss grand jury matters” where “the ‘cat is out of the bag’” given that one
grand jury witness “discusse[d] his role on the CBS Evening News”); Dow Jones,
142 F.3d at 505 (noting that when grand jury witness’s attorney “virtually
proclaimed from the rooftops that his client had been subpoenaed,” that fact was
no longer protected by grand jury secrecy).
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Redacting portions of documents is a more narrowly tailored (and thus lessrestrictive) alternative to withholding them wholesale. See United States v. Doe,
356 F. App’x 488, 490 (2d Cir. 2009) (Where “a party seeks to seal the record of
criminal proceedings totally and permanently, the burden is heavy indeed.”); In re
Knight Publ’g. Co., 743 F.2d 231, 234 (4th Cir. 1984) (citing Press-Enterprise).
In Dow Jones, for instance, this Court remanded so that the trial court could
consider whether redactions, rather than sealing whole documents, would be
possible. 142 F.3d at 502, 506. This Court should do the same for these appellate
proceedings, particularly since the Court is well positioned to avoid inadvertent
disclosure of secret grand jury information: Because arguments are over, the Court
can carefully choose what may be redacted from the oral argument transcript and
briefs without any risk of disclosure, while appropriately respecting the public’s
right of access to these appellate proceedings. See Doe, 889 F.3d. at 751.
II.

Blanket Sealing of the Record, Briefs, and Argument Transcripts in this
Contempt Appeal Violates the Common Law Right of Access.
“The common law right of access to judicial records antedates the

Constitution,” United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997), and
serves as a second source of a right to unseal the oral argument, briefing, and
record in the case. That right attaches to the judicial records sought by this motion.
The oral argument transcript, briefing, and record are all “materials on which [the]
court relie[d] in determining the litigants’ substantive rights.” El-Sayegh, 131 F.3d
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at 162 (quoting Anderson v. Cryovac Inc., 805 F.2d 1, 13 (1st Cir. 1986)). As this
Court explained, the “reason parties file briefs” is to “affect the court’s decision,”
so the common law right attaches to them. Metlife, 865 F.3d at 667. The same
must be true of oral argument transcripts: there “is no doubt” that oral argument, a
verbal extension of the briefs, “play[s] a central role in the adjudicatory process.”
Id. Finally, just as courts rely on briefs, judicial review “requires the court to
consider the record” to make a decision. Id. The briefs, the record, and the oral
argument transcript are all subject to the common law right of access.
This Court applies a six-part test to determine whether the “strong
presumption in favor of public access ... may be outweighed in certain cases by
competing interest.” Metlife, 865 F.3d at 665. When a court considers “a motion
to seal or unseal, it should weigh: (1) the need for public access to the documents
at issue; (2) the extent of previous public access to the documents; (3) the fact that
someone has objected to disclosure, and the identity of that person; (4) the strength
of any property and privacy interests asserted; (5) the possibility of prejudice to
those opposing disclosure; and (6) the purposes for which the documents were
introduced during the judicial proceedings.” Id. (internal quotation marks
omitted); see also United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir.
1980).

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The first two factors unquestionably favor disclosure.2 Most importantly,
the public needs access to the documents. As described above, oral argument,
record evidence, and briefs are at the core of the judicial “adversarial system.”
And when the court issues a “public opinion,” as the Court did here, the public is
entitled to “access” to the judicial records that the court considered and relied on to
reach its decision. Metlife, 865 F.3d at 668. The lack of previous public access to
the documents sought by this motion only highlights the problem: the public
cannot gauge for itself the soundness of the ongoing proceedings. Moreover, this
Court’s judgment and opinion explicitly referred to counsel’s arguments, including
those at oral argument, and “there is a ‘need for public access’ in those instances
where ‘the documents at issue are specifically referred to in the [court’s] public
decision.’” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir.
1996) (cleaned up) (quoting Hubbard, 650 F.2d at 318). Finally, the documents
were introduced during the judicial proceedings for the purpose of persuading
judges, which lies at the core of the common law right of access. See Metlife, 865
F.3d at 668-69. “Given” that the factors on balance favor unsealing “and the
strong presumption in favor of public access,” it is “error” to completely seal all

2

Given the dearth of public facts or explanations for why materials have been
sealed, RCFP cannot presently address the third through fifth factors but, in any
event, any such objections or interests will be minimally affected, and redactions
can mitigate any prejudice.
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but two documents—the judgment and opinion—in this litigation. Nat’l
Children’s Ctr., 98 F.3d at 1410.
CONCLUSION
For the foregoing reasons, this motion to unseal the briefs, record, and oral
argument transcript should be granted.

Respectfully submitted,

January 9, 2019
LEE ROSS CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York City, York 10166-0193
(212) 351.4000
EMILY RIFF
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
(303) 298-5700

_/s/ Theodore J. Boutrous______
THEODORE J. BOUTROUS
Counsel of Record
GIBSON, DUNN & CRUTCHER
LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
(213) 229.7000
tboutrous@gibsondunn.com
BRUCE D. BROWN
KATIE TOWNSEND
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1020
Washington, DC 20005
Phone: 202.795.9300
Facsimile: 202.795.9310

Counsel for Movant Reporters Committee for Freedom of the Press

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CERTIFICATE OF COMPLIANCE
1.

This Motion to Unseal complies with the type-volume limitation of

Federal Rules of Appellate Procedure 27(d) because it contains 5187 words,
excluding the parts of the motion exempted by Federal Rule of Appellate
Procedure 32(f); and
2.

This Motion to Unseal complies with the typeface requirements of

Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of
Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New
Roman font.

January 9, 2019

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

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CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of January, 2019, I caused the foregoing
Motion to Unseal to be electronically filed with the Clerk of the Court for the
United States Court of Appeals for the District of Columbia Circuit by using the
Court’s CM/ECF system. I further certify that four copies of this motion were
filed with the clerk, pursuant to Circuit Rule 27(b), by hand delivery to the clerk,
pursuant to Circuit Rule 25(d). Because the parties and their counsel are not
currently public, we are unable to effect service of the Motion to Unseal on the
parties.

January 9, 2019

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

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1,
the Reporters Committee for Freedom of the Press certifies that it is an
unincorporated association of reporters and editors with no parent corporation and
no stock.
January 9, 2019

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

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CERTIFICATE OF PARTIES
Because the identity of the parties is not public, the Reporters Committee for
Freedom of the Press is not able to provide a certificate of parties, intervenors, and
amici who have appeared before the district court and are in this court, pursuant to
Circuit Rules 27(a)(4) and 28(a)(1)(A).

Date January 9, 2019

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

4