USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 1 of 9 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 _______________________________________________________________ REPLY IN FURTHER SUPPORT OF MOTION TO UNSEAL _______________________________________________________________ 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 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 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 2 of 9 REPLY IN FURTHER SUPPORT OF MOTION TO UNSEAL The Reporters Committee for Freedom of the Press (the “Reporters Committee”) appreciates the government’s agreement that filings in this matter may be unsealed. The parties should indeed file public versions of their briefs, and a version of the oral argument transcript in this Court should be released to the public. Response of the United States to Motion to Unseal at 2 (“Government’s Response”) (Feb. 5, 2019). The Reporters Committee also has no objection to referring the request for record redactions to the district court, provided that the redactions can be implemented in a timely manner. That said, particularly given the government’s view that the public has no right of access to the filings in this matter, Government’s Response at 5-6, the Reporters Committee respectfully reserves the right to challenge redactions the parties propose in this Court or in the district court. The government errs in suggesting that Federal Rule of Criminal Procedure 6(e) requires the redaction of the name of the witness at issue in this case: “Country A” or the “Corporation.” Response at 3 n.1. Nothing in Rule 6(e), nor this Court’s decision in In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998), prohibits a witness from revealing its own participation in a grand jury proceeding. To the contrary, Rule 6(e)(2)(B) lists the only people who are prohibited from disclosing a matter occurring before the grand jury. That list does 1 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 3 of 9 not include witnesses. 1 And Rule 6(e) expressly states that “[n]o obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).” Appellant, the witness here, appears to have no interest in seeking to preserve the secrecy of its identity or its penalty. Country A’s Response to the Reporters Committee for Freedom of the Press’s Mot. to Unseal (“Response”) at 1 (Jan. 16, 2019). Because the witness does not object to the public release of its identity and the Federal Rules not only do not prohibit the release of this information, but also expressly exempt witnesses from the obligation of secrecy, the Reporters Committee respectfully requests that the government and the witness refrain from redacting this information in its unsealed filings. Such a redaction would not be consistent with the First Amendment or the public’s common law right of access. Where, as here, a grand jury witness subjected to contempt proceedings does not object to the disclosure of its identity to the public, that information should not be sealed. Finally, the Reporters Committee has noted that filings it has made in this Court have been filed under seal on the Court’s docket. The Reporters Committee 1 Particularly when a witness is subject to contempt proceedings, prohibiting it from sharing publicly its identity or its punishment would present serious First Amendment and due process concerns. 2 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 4 of 9 has been advised by the Clerk’s Office that only the Court itself can unlock these filings to allow the public to view them. None of these filings contain any information that should be sealed, and the Reporters Committee respectfully requests that the Court direct that all documents filed by the Reporters Committee be made publicly available via the Public Access to Court Electronic Records (PACER) system. The Reporters Committee further joins the government in requesting that the government’s filings relating to the Motion to Unseal—as well as those submitted by Appellant—be made accessible via PACER as well. See Mot. of the United States to Unseal the Response of the United States to Mot. to Unseal (Feb. 6, 2019). 3 USCA Case #18-3071 Document #1772302 February 6, 2019 Filed: 02/06/2019 Page 5 of 9 Respectfully submitted, 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 _/s/ Theodore J. Boutrous_____ 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 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 4 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 6 of 9 CERTIFICATE OF COMPLIANCE 1. This Reply Brief in Further Support of the Motion to Unseal complies with the type-volume limitation of Federal Rules of Appellate Procedure 27(d) because it contains 590 words, excluding the parts of the motion exempted by Federal Rule of Appellate Procedure 32(f); and 2. This Reply Brief in Further Support of the 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. February 6, 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 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 7 of 9 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of February, 2019, I caused the foregoing Reply Brief in Further Support of the 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 Statement were filed with the clerk, pursuant to Circuit Rule 27(b), by hand delivery to the clerk, pursuant to Circuit Rule 25(d). February 6, 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 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 8 of 9 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. February 6, 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 3 USCA Case #18-3071 Document #1772302 Filed: 02/06/2019 Page 9 of 9 CERTIFICATE OF PARTIES Pursuant to Circuit Rules 27(a)(4) and 28(a)(1)(A), the Reporters Committee for Freedom of the Press hereby certifies that the United States has appeared before the district court and this Court. Because the identity of the Appellant is not public, the Reporters Committee is not able to furnish a certificate of all parties, intervenors, and amici who have appeared before the district court and are in this Court. Date February 6, 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