Objecting to an abundance of sealed and redacted records in the criminal case against Paul Manafort, the president’s former campaign chairman, The Washington Post petitioned a federal court Thursday to open those records to public view.
The paper’s motion cited “the profound public interest in these proceedings” — as well as in the overall investigation by special counsel Robert S. Mueller III into Russia’s efforts to interfere with the 2016 presidential election, which has swept up Manafort and scores of others. “The investigation, which concerns the integrity of this country’s elections, goes to the core of the interests protected by the First Amendment,” the motion, filed in U.S. District Court in Washington, said.
The filing comes as Manafort, 69, faces sentencing Thursday in Virginia and next Wednesday in Washington.
He pleaded guilty in Washington to two conspiracy counts of hiding millions he earned as an unregistered lobbyist for Ukrainian politicians over a decade and, after he was charged in October 2017, attempting to tamper with witnesses.
He was convicted at a federal trial in Alexandria in August on related charges of bank and tax fraud.
At issue are redacted or sealed filings, sentencing memos, hearing transcripts and more than 800 pages of exhibits submitted after the special counsel’s office alleged in November that Manafort voided his cooperation agreement with prosecutors in Washington by lying to them about five subjects over more than 50 hours of interviews before and after his guilty plea.
Prosecutors submitted the materials to substantiate their allegations but did so under seal or with heavy redactions, arguing that information related to uncharged individuals or ongoing criminal investigations, including secret grand jury matters, should not become public.
“The long-standing principle of open criminal proceedings deserves to be sustained in this important case, especially considering that it comes in the context of an investigation into the integrity of a presidential election and relentless attacks on the investigation itself,” Washington Post Executive Editor Martin Baron said in a statement.
The Supreme Court has recognized the public’s right of access to records under the First Amendment and common law, including to pre- and post-trial documents and court proceedings. However, courts have upheld that the presumption of access can be overcome when the government proves it has a “compelling interest” to protect, such as grand jury secrecy, individuals’ privacy or a pending law enforcement investigation.
But such exceptions must be narrowly tailored and can be time-limited, courts have found, given the impact on core First Amendment rights and the principles of self-government and government transparency.
Federal judges in Washington have upheld the public’s right to access criminal case materials, particularly in closed investigations, finding that the government can keep matters sealed only by showing a substantial probability that disclosing them would harm the compelling interest at stake and that no alternatives would adequately protect them.
Such exceptions may include materials that refer to uncharged third parties or confidential informants, potentially harming the reputations of innocent people or the ability of the government to obtain evidence in future investigations.
The Post argues that the court in Manafort’s case should be more selective when barring materials from public view, ensuring that a compelling interest indeed exists.
“The Post acknowledges that protection of ongoing criminal investigations has been recognized as a compelling interest that could justify sealing, at least as a general matter,” the motion said. “But courts are not permitted to simply rubber-stamp the government’s assertions on this front — the Court must make specific findings showing that the sealing of any material is narrowly tailored to actually serve that interest.”
U.S. District Judge Amy Berman Jackson in Washington ruled last month that Manafort breached his cooperation agreement, exposing the defendant to stiffer punishment at sentencing.
In response to a question by Manafort attorney Kevin M. Downing of when the government might move to unseal materials, Jackson said she was open to motions by either side or third parties, including the news media. She noted that search warrant materials in Manafort’s case were partially unsealed last summer.
Jackson found that Manafort lied about three of the five subjects alleged by prosecutors. She ruled the subjects were material to the special counsel’s investigation of links between Trump campaign officials and Russia’s interference in the 2016 election, but did not elaborate on the aspects that made them key.
Prosecutors have said one topic about which Manafort lied goes “very much to the heart of what the special counsel’s office is investigating,” namely potential links between Trump officials and Russia’s interference in the election that brought Donald Trump to the White House.
While details are unclear and heavily redacted, court filings show the government focused on Manafort’s interactions with a Russian political operative and longtime employee of his consulting business in Ukraine, Konstantin Kilimnik, whom the FBI has assessed has links to Russian intelligence, and particularly on an Aug. 2, 2016, meeting in a New York City cigar bar at the height of the campaign.
Prosecutors said Manafort lied about the meeting at the Grand Havana Room in Manhattan, and unsealed portions of transcripts suggest that Manafort and Kilimnik may have exchanged key information about a potential peace plan in Ukraine important to Russia, as well as possibly internal Trump campaign polling data.
“The allegation that Paul Manafort breached his plea agreement by lying to investigators is of intense public interest, and the special counsel has noted that it centers on material issues that go ‘very much to the heart’ of what that office has been examining,” Baron said. “And yet this supremely high-profile, politically contentious case is unfolding with key documents having been heavily redacted or entirely sealed from public view.”
The Post’s attorneys, Laura R. Handman and Eric J. Feder of the Davis Wright Tremaine law firm, asked Jackson to unseal the records after giving the government 10 days to respond.
The Post also asked that the judge require prosecutors to notify the court within seven days once any related pending investigation is ending, for potential further unsealing of materials, and to justify the continued sealing of any remaining material every four weeks.
Spencer S. Hsu contributed to this report.