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In re Application of Reporters Committee

United States District Court, E.D. Virginia, Alexandria Division

January 30, 2019

In re APPLICATION OF REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS TO UNSEAL CRIMINAL PROSECUTION OF JULIAN ASSANGE

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Before the Court is an application filed by the Reporters Committee for Freedom of the Press ("applicant" or the "Committee") seeking an order unsealing judicial records related to what the Committee believes is a criminal prosecution of WikiLeaks founder Julian Assange ("Assange"). The Committee's application will be denied without prejudice.

         I.

         This application stems from a motion filed by the Government in a criminal prosecution of Seitu Sulayman Kokayi, who was charged with coercion and enticement of a minor. The Government moved to seal the criminal complaint and the supporting affidavit in that case, arguing that "[p]remature disclosure ... would jeopardize the investigation." Government's Motion to Seal Criminal Complaint and Supporting Documents Pursuant to Local Rule 49(B), ¶ 1. United States v. Kokayi, No. 18-mj-406 (E.D. Va. Aug. 22, 2018). Without explanation, the motion twice referred to an individual named "Assange," even though no such individual had been named as a codefendant or mentioned in the Kokayi complaint or supporting affidavit. In the first reference, the motion stated:

The United States has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation. Another procedure short of sealing will not adequately protect the needs of law enforcement at this time because, due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.

Id. ¶ 3. In the second, it stated:

The complaint, supporting affidavit, and arrest warrant, as well as this motion and the proposed order, would need to remain sealed until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter.

Id. ¶ 5 (emphasis added). The Government has characterized its references to "Assange" as "unintentional error." Government's Opp'n to Reporters Committee's Appl. [Dkt. No. 7] ("Gov't's Opp'n") 1.

         Although the magistrate judge initially granted the Government's motion to seal the Kokayi complaint, affidavit, arrest warrant, and motion to seal, see Order to Seal, Kokayi, No. 18-mj-406 (E.D. Va. Aug. 24, 2018), those documents (with the exception of the affidavit) were unsealed in early September 2018, after Kokayi had been arrested. See Order, Kokayi, No. 18-mj-406 (E.D. Va. Sept. 4, 2018). Once the motion to seal became public, news outlets and social media users noticed the two references to "Assange" and surmised that the Government had instituted criminal charges against Julian Assange, the well-known founder of WikiLeaks, though there is no public record of such charges having been filed. See Memo, of Points & Authorities in Supp. of the Appl. of the Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange [Dkt. No. 1-4] ("Comm.'s Memo.") 2-3.

         The Committee filed this application based on an asserted interest in accessing what it believes are judicial records related to a prosecution of Assange. Specifically, the application "seeks an order unsealing the court records-including, but not limited to, the Court's docket and any criminal complaint, indictment, or other charging document-from the government's criminal prosecution of Assange." Appl. of the Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange [Dkt. No. 1] ¶ 12. The Government opposes the Committee's application on the ground that it has neither confirmed nor denied whether charges have been filed against Assange and cannot be required to disclose that information before an arrest is made.

         II.

         This case lies at the intersection of two weighty interests. One is the Government's need to be able to investigate criminal activity and successfully bring to justice those charged with criminal conduct. The other is the public's right to access judicial records and proceedings, which is an indispensable feature of the American justice system.

         A.

         The public and the press share a qualified right to access civil and criminal proceedings and the judicial records filed therein. Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014). This right "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Id. at 266 (citation omitted). For criminal cases, public access "plays a particularly significant role in the functioning of the judicial process" and inures to the benefit of "both the defendant and ... society as a whole." Globe Newspaper Co. v. Superior Court,457 U.S. 596, 606 (1981). Indeed, presumptive openness "has long ...


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