United States v. Cohen
366 F. Supp. 3d 612
S.D. Ill.2019Background
- On April 9, 2018 the FBI executed Rule 41 and 18 U.S.C. § 2703 search warrants on Michael Cohen's residence, office, hotel room, safe-deposit box, phones, and electronic accounts as part of a grand-jury investigation; Cohen later pled guilty to tax, false-statement, and campaign-finance-related counts.
- Multiple media organizations moved to unseal the warrants, applications, and supporting affidavits (the "Materials"). The Government opposed, citing ongoing investigations and third-party privacy; it submitted ex parte materials for in camera review.
- The Court analyzed both the federal common-law right of access and any First Amendment right to the Materials, treating Rule 41 and § 2703 warrants jointly for common-law purposes but separately under the First Amendment analysis.
- The Court held the Materials are judicial documents and that search warrants and their supporting affidavits attract a strong common-law presumption of access.
- Balancing countervailing interests (risk to ongoing investigations, law-enforcement techniques, cooperating witnesses, and uncharged third-party privacy), the Court ordered partial disclosure with redactions: materials related to resolved tax and false-statement matters and non-criminal conduct to be disclosed; materials implicating ongoing campaign-finance investigations, identities of cooperating/subject individuals, and agents/techniques redacted.
- The Court found no First Amendment right of access to Rule 41 or § 2703 warrant materials in these circumstances (experience and logic do not support constitutional access here) and required the Government to propose redactions and file a status report on any continuing need to redact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common-law presumption of access applies to Rule 41/§2703 warrant materials | Media: Materials are judicial documents, so common-law access should apply and favor unsealing | Gov't: Disclosure would jeopardize ongoing investigations and third-party privacy; SCA/§2703 context permits secrecy | Common-law presumption applies; search warrants and affidavits are judicial documents entitled to strong weight, but disclosure may be limited by countervailing interests; partial unsealing with redactions ordered |
| Whether the SCA (§2703) displaces common-law access | Media: SCA does not categorically mandate sealing, so common-law access remains | Gov't: SCA authorizes notification restraints and secrecy, arguing disclosure risks investigations | Court: SCA contains no categorical statutory presumption against disclosure; common-law analysis applies to §2703 materials |
| Whether the First Amendment confers a right of access to Rule 41 warrant materials | Media: First Amendment protects access to judicial documents and should apply here | Gov't: History and logic don't support constitutional access to warrant materials, which are often sealed during investigations | Court: No First Amendment right of access to Rule 41 warrant materials in this context (experience and logic do not support it) |
| Whether the First Amendment confers a right of access to §2703 warrant materials | Media: §2703 materials should be treated like other judicial records subject to First Amendment access | Gov't: §2703 materials historically kept secret and serve investigative functions; access would harm investigations | Court: No First Amendment right of access to §2703 materials here (no tradition of openness and logic weighs against access) |
Key Cases Cited
- United States v. Erie County, 763 F.3d 235 (2d Cir.) (describing common-law and First Amendment access as related but distinct presumptions)
- Newsday LLC v. County of Nassau, 730 F.3d 156 (2d Cir.) (framework for common-law and First Amendment access)
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (trial-court discretion to limit access to records)
- In re N.Y. Times Co., 577 F.3d 401 (2d Cir.) (analysis of wiretap/search-warrant materials and statutory presumption against disclosure under Title III)
- Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir.) (judicial-document test and access-weight framework)
- United States v. Amodeo (Amodeo II), 71 F.3d 1044 (2d Cir.) (balancing factors for common-law access and privacy counterweights)
- Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132 (2d Cir.) (judicial reliance and relevance for access)
- Wells Fargo Bank v. All Funds on Deposit, 643 F. Supp. 2d 577 (S.D.N.Y.) (common-law presumption for search-warrant affidavits)
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (experience-and-logic test for First Amendment access)
- Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir.) (no First Amendment right to warrant materials pre-indictment)
- Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir.) (limitations on First Amendment access to warrant materials)
- In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569 (8th Cir.) (recognizing First Amendment access in different circuit posture)