The orders inviting Twitter to intervene and instructing the government to file a public, redacted copy of the nondisclosure application are not supported by the text of 18 U.S.C. § 2705(b), Rule 6(e) of the Federal Rules of Criminal Procedure, or the applicable D.C. Circuit precedent regarding access to grand jury-related materials. Accordingly, the magistrate judge’s orders will be vacated. Because the government has met its required showing under § 2705(b), the government’s application for a non-disclosure order will be granted, and the government’s request to seal the application and resulting order under Rule 6(e)(6) of the Federal Rules of Criminal Procedure will be granted.
In this ex ante, and also ex parte process, magistrate judges are called on to review the reasonableness of execution procedures like seize first, search second in the sterile isolation of their chambers. All that is available for review comes from the government. No defendant or defense counsel is present. There are no hearings, no witnesses, no briefs and no debate. Instead, a magistrate judge is left to predict what would or would not be reasonable in executing the warrant without any hard, ripe facts. This is hardly a recipe for success.