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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN THE MATTER OF THE APPLICATION OF
Misc. Action No. 19-0032 (ABJ)
WP COMPANY LLC

GOVERNMENT’S RESPONSE TO MOTION FOR PUBLIC ACCESS
TO CERTAIN SEALED COURT RECORDS
The United States of America respectfully opposes the Washington Post’s (movant) motion
to unseal certain unredacted records from United States v. Manafort, No. 17-cr-201-ABJ-1
(D.D.C.), and to establish a process for ongoing reevaluation of any remaining redactions. The
Court recently approved narrow redactions to these documents, and no material change of
circumstance warrants further public release. Although the government respectfully disagrees
with aspects of the movant’s argument about the rights of access that apply here, it is unnecessary
for the Court to address those questions. The limited redactions in place are tailored to protect
specific compelling interests—including ongoing investigations and the privacy rights of
uncharged third parties. The movant does not dispute that redaction of such information is
appropriate.

The movant additionally asks the Court to establish a “process” for ongoing

reevaluation of redactions—including a reporting obligation for the government and regular
reassessment of each redaction. But the movant cites no authority for imposing this sort of ongoing
process, which would remain in place indefinitely and would impose reporting requirements on
not just this Office but also other government components that are handling ongoing matters. The
government does not oppose holding this motion in abeyance for a fixed time period and notifying
the Court at that time if there have been any material changes of circumstance.

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STATEMENT
A. Factual Background
On May 17, 2017, then-Acting Attorney General Rod J. Rosenstein appointed Robert S.
Mueller, III, as Special Counsel “to investigate Russian interference with the 2016 presidential
election and related matters.”

Order No. 3915-2017, Appointment of Special Counsel to

Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May
17, 2017). (capitalization omitted). The Order directed authorized the Special Counsel “to conduct
the investigation confirmed by then-FBI Director James B. Comey in testimony before the House
Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or
coordination between the Russian government and individuals associated with the campaign of
President Donald Trump; (ii) any matters that arose or may arise directly from the investigation;
and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).” Id. ¶ (b). 1 The Order further
authorized the Special Counsel “to prosecute federal crimes arising from the investigation of these
matters.” Id. ¶ (c).
The Special Counsel’s investigation has involved multiple lines of inquiry. Many have
been handled in the Special Counsel’s Office. But the Special Counsel has also referred a number
of matters to other offices in the government for investigation. As part of the Special Counsel’s
investigation, on October 27, 2017, a grand jury in this District returned a 12-count indictment in
this Court alleging that Paul J. Manafort, Jr., and a co-defendant committed crimes in connection
with work that they performed for Russia-backed political entities in Ukraine, and on February 23,
2018, a substantially similar five-count superseding indictment, which no longer charged the co-

1

28 C.F.R. § 600.4(a) confers “the authority to investigate and prosecute federal crimes
committed in the course of, and with intent to interfere with, the Special Counsel’s investigation,
such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

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defendant or included certain charges, was unsealed. Manafort, supra, Doc. 202. 2 On September
14, 2018, Manafort pleaded guilty to a superseding criminal information in this Court (Doc. 419),
and agreed to “cooperate fully, truthfully, completely, and forthrightly with the Government and
other law enforcement authorities . . . in any and all matters as to which the Government deems
the cooperation relevant.” Doc. 422, at 6-7. Manafort agreed, among other things, to provide
detailed information about “his participation in and knowledge of all criminal activities.” Id. at 6.
B. Relevant Procedural History And Filings At Issue
The movant seeks unredacted versions of a number of filings and transcripts from United
States v. Manafort, No. 17-cr-201-ABJ-1 (D.D.C.). That case has been transferred from the
Special Counsel’s Office to the U.S. Attorney’s Office, and the attorneys who were principally
responsible for that case are no longer handling the matter. Because of the many motions to seal,
as well as the sealed and unsealed (but redacted) versions of documents on the docket, it is difficult
to discern, in some instances, what docket numbers match what filing. To assist the Court and the
movant, and in the interest of transparency, a discussion of the relevant procedural history and
docket entries follows.
1. Notification of Breach of Plea Agreement
On December 7, 2018, the government notified the Court of its determination that Manafort
had breached his plea agreement by making numerous false statements while purportedly
cooperating with the government. Doc. 459 (motion to file under seal); Doc. 460 (redacted notice);
Doc. 461 (unredacted notice). The government described five areas in which it believed that

2

On February 22, 2018, a grand jury in the Eastern District of Virginia returned an
indictment alleging that Manafort committed various crimes in connection with avoiding taxes on
the proceeds of his work and defrauding several banks. United States v. Manafort, No. 18-cr-83TSE, Doc. 9 (E.D. Va.). On August 21, 2018, a federal jury convicted Manafort on eight counts,
and the court declared a mistrial on ten counts. Doc. 257.

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Manafort had lied to investigators; the government’s filing provided supporting detail for each.
See Docs. 460, 461. The government moved to file an unredacted version under seal and a
narrowly-redacted version publicly, to protect “ongoing law enforcement investigations or
uncharged individuals,” and because “public disclosure of certain information in the submission
could unduly risk harming those efforts,” Doc. 459, at 1; compare Doc. 460 with Doc. 461, and
the Court granted the motion. 12/7/18 Minute Order. On January 7, 2019, Manafort filed a
response. Doc. 469 (motion to file under seal); Doc. 470 (unredacted response); Doc. 472
(redacted response). Manafort moved to file under seal and to file publicly a version conforming
to the government’s prior redactions, Doc. 469; compare Doc. 470 with Doc. 472, and the Court
granted Manafort’s motion. 1/8/19 Minute Order.
On January 8, 2019, the Court ordered the government to submit a detailed factual and
evidentiary basis for its conclusion that Manafort had provided false information to the
government. 1/8/19 Minute Order.

On January 15, 2019, the government filed supporting

declarations and exhibits. Doc. 474 (motion to file under seal); Doc. 476 (redacted materials);
Doc. 477 (unredacted materials). The government again moved to file unredacted documents
under seal and narrowly-redacted documents publicly, to protect “ongoing law enforcement
investigations or uncharged individuals,” and because “public disclosure of certain information in
the submission could unduly risk harming those efforts,” Doc. 474, at 1; compare Doc. 476, with
Doc. 477, and the Court granted the motion, 1/15/19 Minute Order. On January 23, Manafort filed
a reply and moved to file an unredacted version under seal and a redacted version prepared in
consultation with the government, Doc. 480 (motion to file under seal); Doc. 481 (unredacted
reply); Doc. 482 (redacted reply), and the Court granted the motion. 1/23/19 Minute Order.

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On February 4, 2019, the Court held a partially-sealed hearing and ordered the parties to
propose redactions to the transcript. 2/4/19 Minute Order. The government and Manafort prepared
redacted transcripts for public release, Docs. 496, 497, 499, and the Court issued a public, redacted
transcript. 2/7/19 Minute Order; Doc. 498; see also Doc. 510 (Court’s order on certain redactions).
On February 8, 2019, Manafort filed a post-hearing memorandum and a motion to file under seal.
Doc. 501. The Court granted the motion and directed the parties to prepare a redacted version.
2/8/19 Minute Order; see Doc. 502 (unredacted version); Doc. 505 (redacted version). On
February 12, 2019, the government moved to file a short supplement under seal in response to
Manafort’s post-hearing memorandum, Doc. 504 (motion to file under seal); Doc. 507 (sealed
response), and the Court granted the motion. 2/12/19 Minute Order. 3 On February 13, 2019, the
Court held a further hearing, and the parties prepared redacted versions of the transcript for public
release. See 2/14/19 Order; 2/15/19 Minute Order; Docs. 514 & 535; see also 2/26/19 Minute
Order.
On February 26, 2019, the government made an additional, supplemental filing, Doc. 533
(motion to file under seal); Doc. 536 (redacted filing). The Court granted the motion to file under
seal. 2/27/19 Minute Order. On March 1, 2019, Manafort filed a reply and motion to reconsider.
Doc. 538 (motion to file under seal). On March 1, 2019, the Court issued a Minute Order noting
a “clarification of the record” and stating that the clarification did “not alter the Court’s
determination.” 3/1/19 Minute Order. The public order contained certain redactions. Id.

3

The government did not submit a redacted version and instead explained that the short
supplement was law enforcement sensitive.

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2. Sentencing Submissions
Pursuant to this Court’s November 30, 2018, and February 4, 2019 orders, the government
filed its sentencing memorandum on February 22, 2019. Docs. 524, 526, 528. The government
moved to file a sealed version and a public version with limited redactions to protect ongoing
investigations and uncharged individuals, Doc. 524; compare Doc. 526, with Doc. 528, and the
Court granted the motion. 2/23/19 Minute Order.
C. Subsequent Developments
On March 22, 2019, the Special Counsel notified the Attorney General that he had
completed his investigation into Russian interference in the 2016 presidential election. The
Special Counsel, however, referred a number of matters to other offices in the Department of
Justice. Those matters remain ongoing.
ARGUMENT
Invoking both the First Amendment and the common law, movant seeks unsealing of
redacted records from United States v. Manafort, No. 17-cr-201-ABJ-1 (D.D.C.).

Movant

additionally asks the Court to establish a process for ongoing review of these redactions by the
government and the Court. The motion should be denied. Even assuming that a right of access
applies to the records at issue, the records have already been made public with limited redactions
to protect ongoing investigations and the privacy rights of uncharged parties. No material changes
require releasing the redacted material. And the movant cites no authority for imposing an
ongoing, and presumably everlasting, duty on the government and the Court to reevaluate those
redactions. The government does not object, however, to holding this motion in abeyance for a
fixed period of time, so that the government can notify the Court on a fixed, future date whether
any material change in circumstances has occurred.

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I. The Movant Is Not Entitled To The Unsealing Of Additional Materials
In seeking unredacted materials, the movant invokes (Mem. 5-16) a presumptive right of
access to certain judicial proceedings based on both the First Amendment and the common law.
The government respectfully disagrees with aspects of the movant’s analysis. But it is unnecessary
for the Court to address those issues. The movant appears to agree that redactions may remain in
place to protect ongoing investigations and the privacy of uncharged individuals. Because the
current redactions are already tailored to protect those interests, no further unsealing could be
required.
A. The Current Redactions Are Tailored To Protect Compelling Interests
Even assuming that any qualified right of access applied to the records at issue, no further
unsealing is warranted. The parties and the Court did not simply seal these records in their entirety.
Instead, the parties proposed, and the Court approved, tailored redactions to protect ongoing
investigations and uncharged third parties. These redactions were undertaken with great care, in
an effort to make public as much of these records as possible. See, e.g., Doc. 510 (Court’s order
unredacting certain portions of the transcript).

The movant has not disputed that the interests

invoked in the various sealing motions are compelling. See Washington Post v. Robinson, 935
F.2d 282, 291 (D.C. Cir. 1991) (ongoing investigations); Matter of the Application of WP Co. LLC
(Matter of Washington Post), 201 F. Supp. 3d 109, 123-127 (D.D.C. 2016) (privacy of uncharged
parties); see also Virginia Dep’t of State Police v. Washington Post, 386 F.3d 567, 579 (4th Cir.
2004) (ongoing investigations); In re Search Warrant for Secretarial Area Outside Office of
Thomas Gunn, 855 F.2d 569, 574 (8th Cir. 1988) (same); cf. United States v. Briggs, 514 F.2d 794,
802 (5th Cir. 1975) (criticizing the practice of naming unindicted coconspirators because doing
“accuse[s] persons of crime while affording them no forum in which to vindicate themselves.”);

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Justice Manual § 1-7.400(B) (stating Department of Justice policy against commenting on an
ongoing investigation “before charges are publicly filed”).
The redactions at issue were undertaken and approved recently—from December 2018,
through March 2019. No material changes have occurred in these past months. Although the
Special Counsel has concluded his work, he has also referred a number of matters to other offices.
The ongoing investigations that required redactions—many of which were already being
conducted by other offices—remain ongoing. And the privacy interests that warranted redactions
remain the same.
B. The First Amendment Does Not Guarantee A Qualified Right Of Public Access
To Filings About Whether A Defendant Breached A Plea Agreement
Although it is unnecessary to address the issue, the government respectfully disagrees with
the movant’s contention that the qualified First Amendment right of access applies to many of the
records at issue. An asserted right of access can be based on the First Amendment or the common
law. The First Amendment right of access is narrower but is not subject to the same flexible,
multi-factor balancing that courts apply under the common law doctrine. See United States v. ElSayegh, 131 F.3d 158, 160 (D.C. Cir. 1997); compare United States v. Brice, 649 F.3d 793, 795
(D.C. Cir. 2011), with Metlife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661, 665
(D.C. Cir. 2017).

The First Amendment protects a qualified “right of access to criminal

proceedings,” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (Press-Enterprise II),
but that right does not apply to all phases of the criminal process. The public possesses a qualified
First Amendment right of access to judicial proceedings and records only if “(i) there is an
‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a significant positive
role in the functioning of the proceeding.” Brice, 649 F.3d at 795 (quoting Richmond Newspapers,

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Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion)). This narrower First Amendment
right does not apply to materials relating to whether a defendant has breached a plea agreement.
1. The First Amendment guarantees “the freedom of speech, or of the press.” U.S. Const.,
Amend. I. As a means of furthering First Amendment interests, the Supreme Court has recognized
an “implicit,” qualified First Amendment “right of access” for the public to attend criminal trials.
Press-Enterprise II, 478 U.S. at 7 (first quotation from Waller v. Georgia, 467 U.S. 39, 46 (1984));
see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-606 (1982). Two features of
criminal trials led to recognition of that right. First, during an “unbroken, uncontradicted history”
dating back centuries, criminal trials have “been open to all who care to observe” and public access
“inher[ed] in the very nature of a criminal trial.” Richmond Newspapers, 448 U.S. at 564, 573
(plurality opinion); accord Globe Newspaper, 457 U.S. at 605 (criminal trials have “long been
presumptively open,” and that “uniform rule” is virtually without exception); see U.S. Const.
Amend. VI (“the accused shall enjoy the right to a speedy and public trial”). Second, public access
“to criminal trials plays a particularly significant role in the functioning of the judicial process”
because scrutiny by the public “safeguards the integrity of the factfinding process,” “fosters an
appearance of fairness,” and “permits the public to participate.” Globe Newspaper, 457 U.S. at
606; accord Press-Enterprise II, 478 U.S. at 8-9.
Applying those two considerations, the Supreme Court has found a First Amendment right
of access to the jury-selection stage of criminal proceedings, Press-Enterprise Co. v. Superior
Court of California, 464 U.S. 501, 505-513 (1984) (Press-Enterprise I), and to the transcript of a
“preliminary hearing” in a criminal case that “function[ed] much like a full-scale trial,” PressEnterprise II, 478 U.S. at 7. The D.C. Circuit has also found a qualified First Amendment right
of access to completed plea agreements. Brice, 649 F.3d at 799. But the Supreme Court has also

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recognized that “[a]lthough many governmental processes operate best under public scrutiny, it
takes little imagination to recognize that there are some kinds of governmental operations that
would be totally frustrated if conducted openly.” Press-Enterprise II, 478 U.S. at 8-9. As a
“classic example” of a proceeding that demands secrecy, the Court pointed to the grand jury
system. Id. at 9 (citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 (1979)); see
Douglas Oil, 441 U.S. at 218-219 (explaining that revelation of grand jury proceedings would pose
investigatory threats and unjustly harm persons who are accused but not charged).
Accordingly, a claimed First Amendment right of access must meet a two-part “experience
and logic” test. Matter of Washington Post, 201 F. Supp. 3d at 117; see Press-Enterprise II, 478
U.S. at 8-9. To meet the test of experience, the “historical tradition” of public access must be of
“some duration,” In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir.
1985), reflecting an “unbroken, uncontradicted history of openness,” Brice, 649 F.3d at 795
(internal quotation marks omitted). To meet the test of logic, public access must play “a significant
positive role in the functioning of the particular process in question.” Press-Enterprise II, 478
U.S. at 8. Both tests must be satisfied “before a constitutional requirement of access can be
imposed.” Reporters Comm., 773 F.2d at 1332.
2. Applying the “experience and logic” test, the movant has no First Amendment right of
access to materials about whether a defendant has breached his plea agreement. Initially, no
historical tradition of public access attaches to submissions for determining whether a defendant
has breached a plea agreement. Although courts must occasionally adjudicate the question
whether a defendant has breached a plea agreement, this kind of adjudication is uncommon and
has no strong historic pedigree.

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In any event, it would make little logical sense to impose such a constitutional rule. By its
very nature, submissions about whether a cooperating defendant has lied or misled the government
or has otherwise withheld material information requires a careful look at the information that the
defendant provided to the government—including granular details of those interactions, sensitive
facts shared by the defendant, and any grand jury testimony that the defendant provided. This also
requires a detailed look at any extrinsic information that calls the defendant’s cooperation into
question—including other evidence that the government has gathered through various means. It
“takes little imagination” to see why these kinds of records demand secrecy. Cf. Press-Enterprise
II, 478 U.S. at 8-9 (describing grand jury investigations as a “classic example”). To extend a First
Amendment right of access to such proceedings could also put the government in untenable
situations. Where the government believes that a defendant breached a plea agreement, the
government should not be required to give that defendant the benefit of the unfulfilled bargain.
And in some instances the government may also have an ethical duty to notify the Court. But if
notifying a court of a breach were to expose vast troves of information to First Amendment
analysis, the government could find itself forced to choose between protecting important
government and public equities, and zealously enforcing the terms of its plea agreements.
Defendants could use this choice to leverage the government or to otherwise gain an unfair
advantage or the benefit of an unfulfilled bargain. 4
As noted, however, it is unnecessary to decide these questions. The government has made
significant efforts to make public as much of the filings and transcripts about the breach as

4

It is unclear whether a First Amendment right of access applies to the sentencing
submissions at issue here. See United States v. Corbitt, 879 F.2d 224, 229-230 (7th Cir. 1989) (no
First Amendment right to presentence reports); United States v. Thompson, 199 F. Supp. 3d 3, 89 (D.D.C. 2016) (First Amendment right to sentencing memoranda). Because it is unnecessary to
resolve that issue, the government takes no position at this time.

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possible. The movant has not disputed the compelling nature of the interests asserted in redacting
portions of the submissions on this issue. And the government continues to believe that the
redactions are necessary to protect those interests. The Court need not go further to rule on this
motion.
II. The Court Should Not Impose An Ongoing Duty To Report And Review Redaction
The movant additionally urges (Mem. 16-18) that the Court should establish a “process”
for ongoing review of the redactions. Specifically, the movant argues that the government “should
be required to promptly notify the Court with a public filing a motion to unseal when a major event
in the investigation obviates a claimed basis for sealing and redaction.” Mem. 18. The movant
asks that the parties should also be “required to assess” the need for redactions “on a reasonably
regular basis—for example every four weeks.” Id.
The movant cites no authority for imposing this sort of ongoing process, which would
impose a significant and indefinite burden on the government. It is one thing to ask a party when
filing documents or participating in a hearing to suggest appropriate redactions. But it is another
to impose an ongoing duty to report any event that could bear on any of those past redactions and
to regularly reevaluate each and every redaction. Indeed, while the movant is presently seeking
such an order in just one case, the movant’s asserted interests might justify similar orders in all
other cases with public redactions, which could be detrimental to the government.
Such a duty would be especially burdensome here. The Manafort case has been transferred
from the Special Counsel’s Office to the U.S. Attorney’s Office, and the attorneys who were
principally responsible for that case are no longer representing the government in this matter. The
redactions are intended to protect ongoing investigations that are being handled by various
attorneys in various offices. It is unknown how long some of these investigations may remain

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ongoing. And some of the privacy interests that are being protected may persist indefinitely. For
the government to “promptly notify” (Mem. 18) the Court of any relevant development would
impose a duty not just on the attorneys who have taken over responsibility for the Manafort case,
but also on other attorneys throughout this and other offices and their successors. Given the
breadth of the related investigations, it would be extremely burdensome, if not impossible, for the
government to ensure such prompt reporting and to undertake regular reassessment in this case.
The movant’s analogies only underscore the government’s arguments. The movant notes
(Mem. 17) that when an indictment is returned under seal, the order often directs the government
to notify the Court when the defendant is in custody so that the Court can post the relevant
materials. But that scenario involves a single, narrow event—the planned arrest of the indicted
defendant. It does not involve an indefinite and government-wide duty to report a wide range of
events and to reassess a large number of redactions. The movant also analogizes (Mem. 17-18) to
28 C.F.R. § 50.9, which generally directs Department of Justice attorneys to oppose holding certain
kinds of closed proceedings, unless doing so is in the interests of justice. See 28 C.F.R. § 50.9.
The movant notes that where a proceeding is closed and its records are “still sealed 60 days after
termination of the proceeding,” government attorneys should determine if the reasons for closure
are still applicable and, if so, review that question every 60 days. See 28 C.F.R. § 50.9(f). But
that directive concerns proceedings or portions of proceedings that remain entirely closed. Here,
the Court has released transcripts containing certain redactions, making public the fact of the
hearings and much of their content. The circumstances here are analogous to the many instances
in which records are redacted or sealed to protect a variety of different interests. The government
does not understand 28 C.F.R. § 50.9(f) to require indefinite, bimonthly review of every redaction
in every transcript of a closed hearing—the analogy to what the movant seeks here.

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The government, however, understands the movant’s interest in the parties’ reassessing
whether the redactions are necessary. To that end, the government does not oppose holding this
motion in abeyance for a fixed period of time, at which point the government would file a status
report notifying the Court whether any material changes in circumstances have occurred. The
government respectfully suggests that October 15, 2019, would be appropriate.

But the

government respectfully requests that the Court not impose a further and ongoing reporting
requirement.
CONCLUSION
For the foregoing reasons, the motion should be denied or, in the alternative, held in
abeyance until October 15, 2019.

Respectfully submitted,
JESSIE K. LIU
U.S. Attorney for the District of Columbia
By: /s/
Jonathan Kravis
Assistant United States Attorneys
555 4th Street NW
Washington, D.C. 20530

Dated: April 15, 2019

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