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By Matthew Russell Lee

FEDERAL COURTHOUSE, July 17 – Two months after Michael Cohen received a three year sentence in the US District Court for the Southern District of New York, on February 7 Judge William H. Pauley III issued an order on how much information gathered during the investigation should be made public.

Now on July 17, Judge Pauley has denied the government's attempt to withhold, and ordered that it be filed on the public docket on July 18 at 11 am - an hour and a half after fellow SDNY Judge Richard M. Berman is set to issue his Jeffrey Epstein bond decision three stories below. From Judge Pauley's July 17 order: " On July 15, 2019, the Government submitted a status report and proposed redactions to the Materials ex parte and under seal. The Government now represents that it has concluded the aspects of its investigation that justified the continued sealing of the portions of the Materials relating to Cohen’s campaign finance violations. Although the Government agrees that the majority of the campaign finance portions of the Materials may be unsealed, it requests limited redactions to those portions to protect third-party privacy interests.  After reviewing the Government’s status report and proposed redactions, this Court denies the Government’s request. In particular—and in contrast to the private nature of Cohen’s business transactions—the weighty public ramifications of the conduct described in the campaign finance portions warrant disclosure. See United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (explaining that “financial records of a wholly owned business, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public”). Moreover, the involvement of most of the relevant third-party actors is now public knowledge, undercutting the need for continued secrecy. See United States v. Basciano, 2010 WL 1685810, at *4 (E.D.N.Y. Apr. 23, 2010) (“Shielding third parties from unwanted attention arising from an issue that is already public knowledge is not a sufficiently compelling reason to justify withholding judicial documents from public scrutiny.”). On balance, the “strong presumption of public access” to search warrants and search warrant materials under the common law far outweighs the weakened privacy interests at play here. See Cohen, 366 F. Supp. 3d at 621-22 (collecting cases).  3  The campaign finance violations discussed in the Materials are a matter of national importance. Now that the Government’s investigation into those violations has concluded, it is time that every American has an opportunity to scrutinize the Materials. Indeed, the common law right of access—a right so enshrined in our identity that it “predate[s] even the Constitution itself”—derives from the public’s right to “learn of, monitor, and respond to the actions of their representatives and representative institutions.” United States v. Erie Cty., 763 F.3d 235, 238-39 (2d Cir. 2014).  Accordingly, the Government is directed to file the July 15, 2019 status report and the Materials on the public docket on July 18, 2019 at 11:00 a.m." Watch this site.

On February 20, Judge Pauley has granted an order pushing back Cohen's date of surrender to prison from March 6 to May 6, on the basis of a "more fulsome letter" submitted by his lawyers on February 12 - under seal.

  While much of the interest is in Cohen and, behind him, President Donald Trump, Pauley's order addresses the need for public oversight of Federal authorities including judges. From the SDNY decision in U.S. v. Cohen, 18-cr-00602: "the presumption of access is at its core tethered to the need for public monitoring of the federal courts and their exercise of judicial power. Cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 847 (5th Cir. 1993) (explaining that “[t]he public’s right to information does not protect the same interests that the right of access is designed to protect”). As the Second Circuit explained, Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions. Amodeo II, 71 F.3d at 1050." While a fine basis, this would militate not only for the release of search warrant records but more transparency and accessibilty day to day in the courts, something lacking even the day before in the presentment of Afghan national Haji Abdul Sattar Barakzai a/k/a Manaf for allegedly supporting the Taliban with heroin imports and sales, click here for that.

   Judge Pauley's February 7 order provides, "The Government is directed to submit a sealed, ex parte copy of the Materials by February 28, 2019 with proposed redactions in highlights consistent with this Opinion & Order. After reviewing the proposed redactions, this Court will direct the Government to file the redacted Materials on the public docket in this action."

   Previously from outside the Court in the Cohen case on December 12 surrounded by a sea of cameras and tripods, Inner City Press live-streamed: see Periscope broadcasts here and here. A week before that in Courtroom 12A there was a guilty verdict in the UN bribery trial...

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