[00:00:01] Speaker 02:
Phase number 21-5128, in rate application of Los Angeles Times Communications LLC to unseal court records, Los Angeles Times Communications LLC appellant versus United States.

[00:00:13] Speaker 02:
Ms.

[00:00:13] Speaker 02:
Townsend for the appellant, Ms.

[00:00:15] Speaker 02:
Danello for the appellee.

[00:00:18] Speaker 04:
All right, the court will allow 15 minutes for petitioner and then 10 minutes for the government.

[00:00:29] Speaker 04:
with petitioner having a right to reply.

[00:00:32] Speaker 04:
And then we will adjourn briefly to go into an ex-party session where the government will continue its argument.

[00:00:45] Speaker 04:
Council for petitioner may proceed.

[00:00:48] Speaker 01:
Thank you.

[00:00:49] Speaker 01:
Good morning, your honors.

[00:00:50] Speaker 01:
May it please the court?

[00:00:51] Speaker 01:
The clearest path to the proper disposition of this appeal is the common law.

[00:00:55] Speaker 01:
The government does not dispute, nor could it,

[00:00:58] Speaker 01:
that the sealed search warrant application and related materials at issue here are judicial records and thus subject to a strong presumption of public access under the common law.

[00:01:07] Speaker 01:
Accordingly, in ruling on the Los Angeles Times motion to unseal those materials,

[00:01:12] Speaker 01:
The district court was required under this court under this circuits precedent to apply the six factor Hubbard test and maintain those materials under seal only if it concluded that ceiling was necessary after considering considering all of the relevant facts and circumstances of this particular case.

[00:01:30] Speaker 01:
And after weighing the interests advanced by the parties in light of the public interest.

[00:01:34] Speaker 01:
and the duty of the courts.

[00:01:36] Speaker 01:
The district court did not do so here.

[00:01:38] Speaker 01:
Rather than apply the Hubbard factors to determine whether the public's common law right to inspect these specific judicial records was overcome and whether redaction was feasible, the district court instead crafted a bright line rule holding that the public's common law right is always categorically overcome as to an entire class of judicial records, search warrant materials related to law enforcement investigations,

[00:02:03] Speaker 01:
that have not been, quote, acknowledged by the government.

[00:02:07] Speaker 01:
This bright line test, even if it were applicable on the facts here, which it is not, is wholly incompatible with the very fact-specific non-categorical six-factor Hubbard test, and it is irreconcilable with this court's decisions, including its recent 2020 decision in Henry Leopold,

[00:02:24] Speaker 01:
that make clear that the Hubbard factors must be applied to ensure that courts fully account for all of the relevant private and public interests at stake.

[00:02:33] Speaker 00:
Simply put, the district court I just asked, I mean, it's just a little bit of an awkward conversation, of course, because I can't drill down into particulars and you don't know the particulars.

[00:02:46] Speaker 00:
So I apologize about that.

[00:02:49] Speaker 00:
But

[00:02:49] Speaker 00:
Isn't it true at a fairly high level of generality that there is no tradition of openness with respect to investigatory materials, investigating criminal investigations that are either ongoing

[00:03:15] Speaker 00:
or closed and did not result in the government filing any charges.

[00:03:22] Speaker 00:
To the contrary, there's pretty strong tradition that when the government doesn't release materials like that.

[00:03:33] Speaker 01:
I think there is a strong tradition of access, Your Honor, particularly relevant to both the common law analysis and the First Amendment analysis to search warrant materials post-execution.

[00:03:44] Speaker 01:
And in fact, the government's brief acknowledges that, that frequently, most frequently following execution of a warrant, not just the warrant and the return are unsealed and made public, but the search warrant application and supporting materials are as well.

[00:04:00] Speaker 01:
The fact or status, let's say, of a government's investigation, whether there is an ongoing investigation, whether the investigation is closed, other facts and circumstances that may be relevant don't go to whether or not the right of access applies in the first instance, but rather speak to whether or not and to what extent the right of access might be overcome in a particular case.

[00:04:23] Speaker 01:
And I think that's the beauty, quite frankly, of the Hubbard test and why it served as this court's lodestar.

[00:04:30] Speaker 01:
for decades, it takes into account the specific facts and circumstances of the case, it would take into account or should have taken into account, for example, the strength of the privacy interests any privacy interests asserted here, in light of the fact that Senator Burr himself had acknowledged

[00:04:47] Speaker 01:
The investigation at many points in time publicly had acknowledged the fact of the search warrant connected to the investigation when he stepped down the following day from his chairmanship of the Senate Intelligence Committee.

[00:05:00] Speaker 01:
There was lots of information that would affect that should have come into play with respect to the district court's analysis of the six Hubbard factors, factors that were just completely not addressed at all by the district court in her opinion.

[00:05:19] Speaker 01:
I'd like to point out your honor the fact that this appeal is the LA Times first opportunity to argue that a categorical approach to sealing judicial records is clear legal error under the circuit's precedent, I think is an unfortunate result of the wholly sealed ex parte nature of the proceedings below.

[00:05:37] Speaker 01:
not only did permitting the government to make all of its arguments, including purely legal arguments under seal, deprive the public of its right of access to the government's briefing, but it also deprived the LA Times of their opportunity to confront and counter the arguments made by the government.

[00:05:52] Speaker 01:
And as a result, it appears to have significantly distorted the outcome in the district court.

[00:05:57] Speaker 01:
Had the LA Times known, for example, that the government would argue to the district court that it was dispositive, that DOJ had not, quote,

[00:06:04] Speaker 01:
publicly acknowledged its investigation into stock trades made by Senator Burr and Gerald Fouth, the Senator's brother-in-law, who is himself a high-level federal government official.

[00:06:15] Speaker 01:
The LA Times could have and would have pointed out to the district court the fact that a DOJ spokesman had confirmed closure of that investigation to multiple news outlets.

[00:06:23] Speaker 01:
And it most certainly would have argued to the district court, as it has argued to this court, that as a legal matter, that is not the correct test to begin with.

[00:06:31] Speaker 01:
As I stated in response to Judge Katz's your questions, the status of the investigation, whether or not charges have been filed, the extent of information in the public domain about the investigation.

[00:06:41] Speaker 01:
and the source of that information, including whether, as here, the targets of the investigation as a public official has spoken publicly about the investigation.

[00:06:50] Speaker 01:
These are specific facts and circumstances that a district court considers and must consider when applying Hubbard.

[00:06:57] Speaker 04:
One of the questions I had is accepting your point about being disadvantaged because you didn't know specifically how the government

[00:07:11] Speaker 04:
was going to argue, you did know about the factors and there was nothing to bar your client, as I understand it, from arguing beyond what it knew the government had argued in this case, if you understand what I'm trying to say.

[00:07:37] Speaker 04:
In other words, you knew about certain facts, not only regarding the Senator, but other matters.

[00:07:48] Speaker 04:
And those matters could have been identified for the district court in terms of the Hubbard factors.

[00:07:56] Speaker 04:
No, or am I just misunderstanding what your position was before the district court?

[00:08:03] Speaker 01:
And we did, Your Honor, when we moved to unseal those materials, signed the Hubbard test, pointed the district court to relevant facts.

[00:08:11] Speaker 01:
We were not aware at the time, and quite frankly, it's surprising that the government would take the position that this investigation that had been widely reported on by the media that had been spoken about, not just by Senator Burr, but by Senate Majority Leader McConnell, that this was a non-public investigation.

[00:08:29] Speaker 01:
We weren't anticipating a situation where the entire

[00:08:32] Speaker 01:
entire proceedings, including every piece of the government's argument below, would be sealed and that we would have no opportunity.

[00:08:38] Speaker 04:
Well, in fairness to you and your client, you knew the factors were there and you knew that the district court had to address them.

[00:08:52] Speaker 04:
And to make your strongest case, why wouldn't you have just put forth for the district court in anticipation

[00:09:01] Speaker 04:
that the government either might make certain arguments or not point out certain matters.

[00:09:09] Speaker 04:
I'm just not clear about that.

[00:09:10] Speaker 04:
I understand obviously in these ex-party proceedings you're at a disadvantage, but here where you're coming in, and I understand your point about the common law right of access, you have to overcome the presumption.

[00:09:27] Speaker 04:
But given the question Judge Katz has argued, not argued, but asked you about, isn't it generally understood how these closed investigations or ongoing investigations into the possibility of criminal conduct are handled at the department?

[00:09:53] Speaker 04:
I'm just not clear about that.

[00:09:55] Speaker 04:
In other words, may not have anything to do with how this case is resolved, but I just wanted to understand in my own mind that while you may have come in thinking you had a clear right, nevertheless, you had to anticipate that maybe the government would take a different position.

[00:10:11] Speaker 04:
And for reasons perhaps that Judge Katz's question signaled,

[00:10:21] Speaker 01:
And we did your honor make a showing below with respect to our understanding based on the public statements made by Senator Burr based on.

[00:10:28] Speaker 01:
confirmation by DOJ spokesman that the Department of Justice investigation, at least, was closed.

[00:10:35] Speaker 01:
We certainly understand, based on the most recent disclosures made by the SEC in October, that the SEC has an ongoing, or at least did, as of October, have ongoing investigations, insider trading investigations, into Senator Burr's trades, into Mr. Fath's trades, to the extent that- Well, I have some experience working with the media, and

[00:10:57] Speaker 04:
The media doesn't take things at face value and has all kinds of contacts within the departments.

[00:11:07] Speaker 04:
And I'm just surprised that some of these matters weren't pursued, although I can understand why a prosecutor might have not cooperated in any way.

[00:11:28] Speaker 04:
with answering your questions.

[00:11:33] Speaker 01:
Well, at the time that the district court entered its ruling, though it was not a named DOJ spokesperson, multiple news outlets reported that the DOJ had confirmed

[00:11:46] Speaker 01:
That the investigation was closed.

[00:11:49] Speaker 01:
We now, again, know from more recent SEC public filings that that was that that the investigation Department of Justice also confirmed to Mr foul that its investigation into his trades were closed as well that's information that he disclosed on the public docket.

[00:12:07] Speaker 01:
The, the salient point your honor is that even though and I understand that we're you're limited in the way that you can ask me questions and I'm somewhat therefore limited in the way that I can respond, but I think the salient point.

[00:12:21] Speaker 01:
Even in a situation like perhaps this situation where the district court is required to redact certain facts that it might be relevant to an unsealing motion that doesn't relieve the district court of its obligation to apply each of the Hubbard factors and.

[00:12:39] Speaker 04:
My questions, excuse me counsel, but my questions are premised on the notion that.

[00:12:47] Speaker 04:
litigants often don't assume that the other party is going to make its arguments.

[00:12:54] Speaker 01:
And in this situation, Your Honor, I think the LA Times motion to unseal cited the Hubbard factors indicated that the right was not overcome, particularly where Harris pointing to

[00:13:08] Speaker 01:
the specific privacy interests that might be implicated here that Senator, with respect to Senator Burr, that he had publicly acknowledged the investigation.

[00:13:16] Speaker 01:
This is a situation involving more targeting a sitting United States Senator.

[00:13:21] Speaker 01:
The public interest was particularly strong.

[00:13:23] Speaker 01:
Those arguments were made to the district court.

[00:13:25] Speaker 01:
I think what the LA Times was not anticipating and could not have anticipated, quite frankly, based

[00:13:32] Speaker 01:
on this circuit's precedent and the way that the Hubbard factors are typically applied is that the government would presumably argue for and the district court would apply a bright line test that ignored those facts.

[00:13:46] Speaker 01:
No, I understand.

[00:13:47] Speaker 04:
But was the argument presented to the district court, for example, that once Senator Burr had publicly stated that the investigation, he had received notice at the

[00:14:01] Speaker 04:
investigation was closed.

[00:14:09] Speaker 04:
While that didn't tell anyone anything about the extent of the investigation, still wasn't that an acknowledgement that there was an investigation.

[00:14:22] Speaker 04:
That's all I'm trying to get at here.

[00:14:25] Speaker 01:
We framed it within the context, and I would frame it, Your Honor, within the context of the Hubbard factors.

[00:14:30] Speaker 01:
The fact that Senator Burr was upfront about and public about the existence of the investigation indicates a diminished privacy interest in not disclosing.

[00:14:40] Speaker 01:
And I think this goes to the heart of precisely what's frankly wrong with the district court's ruling, which is that the district court, for example, took into account

[00:14:48] Speaker 01:
potential stigma to Senator Burr and perhaps Mr felt as well of being associated with this investigation when that cat was well out of the bag and that shouldn't have been a factor therefore in considering whether or not the common law presumption was overcome in this particular in this particular case.

[00:15:13] Speaker 01:
Your honors, I realize I have just a few.

[00:15:15] Speaker 05:
Just one thing, sorry, the history with respect to search warrants, is that relevant to determine whether these are common law judicial records or only for your First Amendment claim?

[00:15:28] Speaker 01:
The tradition of public access is relevant to the First Amendment claim, your honor.

[00:15:32] Speaker 01:
This circuit's precedent looks

[00:15:34] Speaker 01:
with respect to application of the common law to whether or not the records are judicial records, their judicial records based on the adjudicatory the role they play in the adjudicatory process so I don't think there's any question that these are, these are judicial records.

[00:15:48] Speaker 05:
regardless of how would history at all, if it all factor into the Hubbard factors, other than maybe privacy interests or do we have precedent factoring history of access into the Hubbard factors?

[00:16:03] Speaker 05:
I don't mean to mix categories here, but I'm trying to sort of figure out how that might bear on anything.

[00:16:09] Speaker 05:
Or is it simply that you might have overlapping privacy arguments in the two contexts?

[00:16:13] Speaker 01:
I think there may be overlapping argument, and I don't mean to suggest that the status of the government's investigation is irrelevant, for example, to the Hubbard analysis, to the strength of the property and privacy interests that might be implicated, which can include government law enforcement interests, for example.

[00:16:33] Speaker 01:
So it isn't as though that's an irrelevant factor, but I think it's built into the Hubbard test with respect to the comp under the common law.

[00:16:41] Speaker 01:
And I think here, particularly given the more recent disclosures by the SEC which I think also not only

[00:16:50] Speaker 01:
call into question the need for sealing, but I think Colin to question quite frankly that the the information that's been provided to this court by the government, the information that was provided to the district court by the government below what representations were made if any about the SEC is claimed need for continued secrecy, when it appears that the SEC has not claimed any law enforcement need at all whatsoever.

[00:17:10] Speaker 01:
for continued secrecy in more recent filings that it has made in the Southern District of New York.

[00:17:16] Speaker 01:
So I think particularly in light of those more recent facts, all of that, Your Honor, goes into the hopper, let's say, of the Hubbard analysis.

[00:17:26] Speaker 01:
It's all part of the specific facts and circumstances that court should look at when determining whether and to what extent the right is overcome.

[00:17:33] Speaker 05:
Well, the SEC disclosure wasn't before the district court.

[00:17:37] Speaker 05:
So is that something we would apply here on our own, or would we have to remand it for the district court to do that?

[00:17:46] Speaker 01:
So I think it's, I would say those disclosures are relevant for, I'd make three points there, Your Honor.

[00:17:50] Speaker 01:
I think, one, this court has its own independent obligation to determine the appropriateness of maintaining its own records under seal, which includes the redacted portions of the government's brief that we have moved to unseal, that motion's pending before Your Honors.

[00:18:05] Speaker 01:
The appendix which consists of the records below, as well as after today, the transcript of the expert a portion of oral argument, which we would also ask the unsealed to the greatest extent possible.

[00:18:22] Speaker 01:
the current state of information in the public domain is relevant to this court's determination.

[00:18:28] Speaker 01:
More directly to your question, with respect to the record that was before the district court, the additional further acknowledgments that have now been made by the SEC were not before the district court.

[00:18:40] Speaker 01:
At the same time, as we argued in our opening brief before we even saw all those additional disclosures, the district court failed to apply the Hubbard test, which is an error of law.

[00:18:50] Speaker 01:
There were key facts that weren't

[00:18:52] Speaker 01:
that were not applied.

[00:18:53] Speaker 01:
And so I don't think with respect to remand that it's an either sort of either or all or nothing response.

[00:19:00] Speaker 01:
I think our position is that the court should reverse.

[00:19:05] Speaker 01:
There are likely pieces of information that this court will determine, particularly now in light of the SEC's disclosure disclosures cannot and should not remain under seal.

[00:19:17] Speaker 01:
We would take the position that those materials should be unsealed or that information should be

[00:19:20] Speaker 01:
unsealed immediately.

[00:19:22] Speaker 01:
To the extent there are closer questions, we recognize that it's his court's practice to remand to the district court to apply the Hubbard factors in the first instance.

[00:19:30] Speaker 01:
So I think that sort of hybrid approach would be appropriate here, Your Honor.

[00:19:36] Speaker 04:
All right.

[00:19:36] Speaker 04:
Anything further?

[00:19:37] Speaker 04:
Thank you.

[00:19:38] Speaker 04:
Let us hear from the government.

[00:19:45] Speaker 03:
May it please the court?

[00:19:47] Speaker 03:
Elizabeth Dinello for the United States.

[00:19:51] Speaker 03:
The district court did not err in denying the motions to unseal.

[00:19:56] Speaker 03:
Before I go any farther, let me just note that for the purpose of convenience at this oral argument, I will refer to the alleged search warrant as the search warrant.

[00:20:09] Speaker 03:
That is not intended as a public acknowledgement of the existence of the search warrant.

[00:20:15] Speaker 03:
And like appellant, I will focus on the district court's ruling under the common law.

[00:20:21] Speaker 03:
what this court has called the broader but weaker right of access.

[00:20:25] Speaker 03:
The district court here was well aware of the presumption of access.

[00:20:31] Speaker 03:
It knew that the target of the search warrant was a sitting United States Senator, and it acknowledged Appellant's argument that there was a particularly strong public interest in disclosure.

[00:20:43] Speaker 03:
But based on the full record,

[00:20:46] Speaker 03:
the court found that compelling individual privacy and government interests outweighed the public's interest in disclosure.

[00:20:55] Speaker 05:
That was a proper balancing under Hubbard and the court- Can you point me in the district, using the public opinion, of course, where the discussion section by the district court you say is, where do you find that court factoring in

[00:21:17] Speaker 05:
presumption in favor of disclosure and the arguments in favor of disclosure or addressing the arguments of public interest in disclosure raised by LA Times.

[00:21:29] Speaker 03:
The court first referenced at page

[00:21:39] Speaker 03:
At page five of the course- That's the background section.

[00:21:43] Speaker 05:
I'd like to know where in the analysis of the, so that's why I said in the discussion section, which starts on page 10.

[00:21:50] Speaker 03:
Well, let me just go straight to the conclusion on page nine, where the court finds that, assuming that these materials exist,

[00:22:08] Speaker 03:
That various privacy and government interest in the contents of the search warrant materials.

[00:22:15] Speaker 03:
would outweigh the public's interest in disclosure.

[00:22:20] Speaker 05:
That's the end of the balancing analysis, but I don't see any actual discussion.

[00:22:27] Speaker 05:
There's no acknowledgement in the analysis section here of the presumption of the arguments.

[00:22:38] Speaker 05:
It's just described as like a generic public interest in disclosure.

[00:22:41] Speaker 05:
There's no discussion of

[00:22:43] Speaker 05:
public status, what the nature of a privacy interest is or isn't.

[00:22:48] Speaker 05:
I mean, it's really pretty, it's all it seems to talk about is, I mean, nature of privacy interest from the public interest perspective, obviously.

[00:22:59] Speaker 03:
The court here, I mean, to start, Your Honor.

[00:23:04] Speaker 03:
District Court, as in any case, is presumed to know and apply the law.

[00:23:10] Speaker 03:
The court here was obviously well aware of the law in Hubbard, which it laid out and obviously dealt with before.

[00:23:17] Speaker 05:
You've got pretty clear precedent that even when you say the test, but if you don't, if your application doesn't reflect the test, just saying the test upfront, but when you get to the actual application,

[00:23:31] Speaker 05:
We can't discern it.

[00:23:34] Speaker 05:
Very smart judge, no doubt, knows what the law is.

[00:23:37] Speaker 05:
But in the analysis section, I think you're having trouble as well as me.

[00:23:41] Speaker 05:
All you've got in her analysis section is, would outweigh the public's interest in disclosure.

[00:23:47] Speaker 03:
Well, the court a number of times uses outweigh override, indicating that it is doing a balancing.

[00:23:55] Speaker 03:
Furthermore, nothing in either Hubbard or any of the cases that follow

[00:24:00] Speaker 03:
require a judge to do a factor by factor analysis.

[00:24:04] Speaker 03:
Indeed, we're not aware of any authority that where there's a judicially

[00:24:08] Speaker 03:
create a multi-factor test, a judge has to explain.

[00:24:13] Speaker 05:
Well, we've been pretty clear that this is a case-by-case, the Huppertest is a case-by-case record-specific application.

[00:24:20] Speaker 05:
And so the problem here isn't that the district court didn't sort of number them and go through them with little headings or anything like that.

[00:24:30] Speaker 05:
I think, as your answer just pointed out to me, is we can't even find

[00:24:35] Speaker 05:
a sentence in the analysis section, acknowledging or discussing the public interest in favor of disclosure.

[00:24:44] Speaker 05:
That's more than just a technical argument that they didn't sort of march through every little thing.

[00:24:51] Speaker 03:
But the whole point of this litigation was the appellant's argument that there was this heightened public interest and needed disclosure.

[00:25:02] Speaker 03:
The district court in its opinion and its public opinion was in a difficult position because it was being asked to assess and explain to the public and to appellant

[00:25:17] Speaker 03:
why it was denying these motions to unseal without revealing whether.

[00:25:23] Speaker 05:
How would discussing the public interest, acknowledging the public interests in disclosure?

[00:25:28] Speaker 05:
Right, they've been able to articulate public interests in disclosure.

[00:25:33] Speaker 03:
Because they are assuming that the search

[00:25:37] Speaker 03:
That is premised on their argument that the search warrant exists.

[00:25:42] Speaker 03:
If the district court here had focused on the particular interests, it would have necessarily revealed that there had been a search warrant of the phone of Senator Burr.

[00:25:53] Speaker 05:
The district court did a pretty fine job of assuming things and arguing that way as you've been doing here.

[00:25:59] Speaker 05:
Right.

[00:26:02] Speaker 03:
And my point is that here,

[00:26:05] Speaker 03:
It was a given coming in.

[00:26:07] Speaker 03:
The court had obviously read the pleadings.

[00:26:10] Speaker 03:
It quoted at page seven the appellant's argument that there was a particularly strong public interest at stake.

[00:26:18] Speaker 03:
It was aware of appellant's arguments in the pleadings that there was a heightened public interest, that the public and the media needed access to these materials in order to scrutinize the grounds for the search warrant.

[00:26:35] Speaker 03:
So here, the whole context of the litigation is this argument that there is a heightened public interest.

[00:26:43] Speaker 05:
And so on the district court, in its opinion, but just a heightened public interest and presumption, presumption in favor, assuming these records exist, there's a presumption in favor of their disclosure as judicial records.

[00:26:55] Speaker 05:
I'm not talking about First Amendment here.

[00:26:57] Speaker 05:
I'm talking about the common law.

[00:26:58] Speaker 05:
There's a presumption in favor of disclosure.

[00:27:02] Speaker 03:
And here, Your Honor.

[00:27:04] Speaker 05:
Which is a heightened public interest.

[00:27:07] Speaker 05:
There's a presumption.

[00:27:08] Speaker 05:
And that presumption gets us to an already skewed balance, which we also have to pile on the public interest.

[00:27:15] Speaker 05:
If assuming these documents exist, what is the public interest?

[00:27:21] Speaker 03:
Again, the district court here is presumed to know and apply the law correctly.

[00:27:27] Speaker 03:
And there's nothing to indicate that the court here didn't understand the law.

[00:27:31] Speaker 03:
And if I may, your honor, just move on, because I see already I'm running short on time.

[00:27:35] Speaker 03:
Just want to respond to a couple of points of appellant.

[00:27:39] Speaker 03:
The court here did not.

[00:27:41] Speaker 00:
Can I just press you a little more on that?

[00:27:44] Speaker 00:
I suspect we'll give you time to make your points.

[00:27:47] Speaker 00:
But I mean, you're right.

[00:27:49] Speaker 00:
The district court could not put on the public record

[00:27:58] Speaker 00:
whatever interests, if any, would cut in favor of maintaining confidentiality, if any, right?

[00:28:10] Speaker 00:
But on the other side of the balance, talking about activities of a sitting Senator, talking about allegations of

[00:28:27] Speaker 00:
insider trading, which is by members of Congress, which is currently very much in the public discourse.

[00:28:40] Speaker 00:
District court can talk about all of that, and there's not even a sentence about it.

[00:28:53] Speaker 00:
There are no confidentiality limits on the district court's ability to acknowledge that.

[00:28:59] Speaker 00:
On that side of the balance, talk about those considerations and weigh them.

[00:29:05] Speaker 03:
Well, if the question is whether the court could have written its opinion in a different way, yes, it could have.

[00:29:16] Speaker 03:
Whether the court is concerned that the district court didn't

[00:29:23] Speaker 03:
know and apply the law correctly.

[00:29:25] Speaker 03:
There's no indication here that the court did not.

[00:29:30] Speaker 03:
In fact, the court's reference to the particularly strong interest indicates that the court was sensitive to the heightened public interest in this case.

[00:29:40] Speaker 03:
the opinion is what it is.

[00:29:41] Speaker 05:
Erin, the privacy and now there's, there's, you know, just discussion, I was a generically about privacy interests and closed investigations.

[00:29:52] Speaker 05:
Assuming there was such a thing here, just look, you will just assume it for the purpose of this point.

[00:29:59] Speaker 05:
Where is there any discussion or recognition of diminished privacy interests when someone's

[00:30:09] Speaker 05:
a public official.

[00:30:12] Speaker 05:
Conduct involves

[00:30:15] Speaker 05:
their performance of public duties.

[00:30:17] Speaker 05:
This isn't a case we've had other cases about.

[00:30:21] Speaker 05:
Even if you're a public official, something very private going on in your life, that's not this case, as it's brought to us.

[00:30:27] Speaker 05:
And it's, at least as the LA Times has laid out, there's plenty of, well, it's not just plenty of reporting.

[00:30:35] Speaker 05:
You have Senator Burr on the record talking about

[00:30:43] Speaker 05:
this matter, certainly when he says it was closed.

[00:30:51] Speaker 05:
Mitch McConnell talking about an investigation.

[00:30:56] Speaker 05:
And so where did the district court factor that in to the discussion of the privacy problem?

[00:31:06] Speaker 03:
The short answer is the district court did not express that

[00:31:13] Speaker 03:
The district court.

[00:31:16] Speaker 05:
Senator House, Senator Burris position might factor in, but with respect to the didn't address that aspect of privacy only addressed it only addressed one side of the privacy arguments in this case.

[00:31:32] Speaker 03:
Right, but the court also recognized this goes to your question about Senator Burr's public announcement that the court recognized there's a second distinct privacy interest by a target.

[00:31:47] Speaker 03:
And that is in the contents of the investigative materials.

[00:31:51] Speaker 05:
And whereas here you have- I agree that district court talked about privacy on one side here, but you just agreed with me district court didn't even talk about privacy, the other side of the privacy balance here.

[00:32:06] Speaker 03:
No, I think we are reading the court's opinion correctly.

[00:32:12] Speaker 03:
The court didn't mention that.

[00:32:13] Speaker 03:
But what I'm suggesting, Your Honor, is that the court nonetheless is presumed to have understood these interests and appropriately recognize the countervailing interests on the other side.

[00:32:27] Speaker 03:
I did just want to just follow up, though, on your point about the Senator's acknowledgement of the investigation and respond to Ms.

[00:32:41] Speaker 03:
Townsend's

[00:32:42] Speaker 03:
point that he also acknowledged the search warrant.

[00:32:45] Speaker 03:
He did not.

[00:32:46] Speaker 03:
He never said anything about the existence of the search warrant, nor has the Department of Justice, nor has the SEC.

[00:32:53] Speaker 03:
The only basis for the media reports is that unauthorized disclosure by the unnamed law enforcement official.

[00:33:00] Speaker 05:
He did say the FBI came

[00:33:04] Speaker 05:
to visit, I'm just, I'm giving you a quote here of what he said.

[00:33:08] Speaker 03:
There are plenty of reasons that the FBI can come visit, including coming and asking for consent to search.

[00:33:13] Speaker 03:
That certainly doesn't disclose the fact of a search warrant.

[00:33:16] Speaker 03:
Or as the district court pointed out, he still has a privacy interest in the contents of materials and their potentially privacy interest.

[00:33:25] Speaker 05:
But then there's countervailing arguments as to, speaking all hypothetically here.

[00:33:30] Speaker 05:
But I'm really privacy concerns or reduce privacy concerns that aren't discussed.

[00:33:36] Speaker 05:
Where did the district court had a brief line about the fact that there had been public reporting?

[00:33:51] Speaker 05:
Didn't seem to matter.

[00:33:52] Speaker 05:
I forget the exact.

[00:33:54] Speaker 05:
These are on page.

[00:33:57] Speaker 05:
It's Joint Appendix 12.

[00:33:59] Speaker 05:
These interests are no less great where some of the relevant information has been reported on in the news media.

[00:34:07] Speaker 05:
On the other hand, we have cases that have found, we have case after case that has found extensive media coverage, very relevant under the Hubbard factors.

[00:34:18] Speaker 05:
Well, how did she deal with, how does this opinion address that aspect of Hubbard under our case law?

[00:34:26] Speaker 05:
How does it put weight on that?

[00:34:27] Speaker 05:
Where does it put weight on that?

[00:34:30] Speaker 03:
Well, again, you're asking me where in the opinion that we're both reading at the same time, Your Honor,

[00:34:36] Speaker 03:
What the court did recognize was that there had been no acknowledgement by the government of the search warrant or any disclosure of the contents of the materials.

[00:34:51] Speaker 03:
So regardless whether there was common knowledge of the investigation, member Hubbard too at page 318, when it talks about the public access factor, talks about access through legitimate

[00:35:07] Speaker 05:
there are a lot of news articles, news reports about a supposed search warrant as well, a lot.

[00:35:14] Speaker 03:
Right, but they all derive from the same source.

[00:35:17] Speaker 05:
No, no, many, many of them named their own sources.

[00:35:24] Speaker 05:
All right, well, the variety of sources and their articulations that I read.

[00:35:29] Speaker 04:
I think what we're pressing you on is, is the government's position that the district court adequately considers the Hubbard analysis by reciting the factors and adding a conclusory statement about the ultimate

[00:35:57] Speaker 04:
analysis by the district court.

[00:36:01] Speaker 04:
Because contrary to a statement I thought you made earlier, and maybe I misunderstood what you said, we have remanded a number of cases to the district court.

[00:36:13] Speaker 04:
to complete a Harvard analysis.

[00:36:16] Speaker 04:
And simply reciting the factors is not enough.

[00:36:19] Speaker 04:
Simply the presumption that the district court applies the law correctly is not enough.

[00:36:25] Speaker 04:
And I realize these are very fact-specific.

[00:36:28] Speaker 04:
But your statements here and in your brief seem to be close to saying, if you acknowledge you know about this test, if you recite the factors so we know you're aware of the factors,

[00:36:41] Speaker 04:
and you have a conclusory statement, that's enough.

[00:36:45] Speaker 04:
And yet I think our circuit president has strongly indicated that's not enough, wouldn't you agree?

[00:36:53] Speaker 03:
The district court did not simply recite the factors and then have a conclusory statement at the end.

[00:37:01] Speaker 04:
Well, what I'm getting at is Justice and Judge Millett's questions have honed in on the fact that we don't have an analysis as such.

[00:37:14] Speaker 03:
The district court, well, first, let me just back up and say that.

[00:37:20] Speaker 03:
Where the court has remanded, it's because either the district court as in Leopold added a factor that was not relevant to the Hubbard test or more typically the district court has not applied Hubbard at all.

[00:37:37] Speaker 03:
Here the district court did engage in a balancing as evidenced by its use of words like override and outweigh.

[00:37:47] Speaker 03:
the district court simply didn't go into the level of detail that the court is suggesting was required.

[00:37:59] Speaker 03:
Why wouldn't it?

[00:38:00] Speaker 04:
But again, this is down to, let me, you're a very experienced prosecutor here.

[00:38:06] Speaker 04:
Why wouldn't it be preferable to have the court deal

[00:38:16] Speaker 04:
in some detail with these factors so that at least by the time the case comes to appeal, if it comes to appeal, we don't have the situation that we have now where we can't find things, we don't see things.

[00:38:33] Speaker 04:
And given that there is a presumption here

[00:38:40] Speaker 04:
wouldn't that be a more appropriate way for the district court to proceed?

[00:38:45] Speaker 04:
That's all I'm trying to understand.

[00:38:46] Speaker 04:
And I don't quite understand the government's argument.

[00:38:49] Speaker 04:
And I realize you're hindered in responding, but.

[00:38:52] Speaker 03:
At this point where the case is on appeal, and the question is whether the district court abused its discretion in its application of the Hubbard test,

[00:39:11] Speaker 03:
The district court did not err as a matter of law because the opinion reflects that it did apply the Huber test and did do a balancing.

[00:39:21] Speaker 03:
So what it comes down to are two problems that I'm hearing articulated.

[00:39:26] Speaker 03:
One is that the court didn't express in more detail how it was weighing the factors.

[00:39:35] Speaker 03:
And certainly that would have been helpful.

[00:39:37] Speaker 03:
but was that an abuse of discretion?

[00:39:40] Speaker 03:
We suggest not.

[00:39:41] Speaker 05:
Just to correct, I'm sorry.

[00:39:45] Speaker 05:
In any detail, it's not a question of more detail, in any detail at all.

[00:39:50] Speaker 05:
And so that's the way in which we have to ask the abuse of discretion standards.

[00:39:53] Speaker 05:
So if you could answer in any detail, not in more detail, that's a very different abuse of discretion question.

[00:39:59] Speaker 03:
Well, the district court did recognize and admittedly in a cursory manner,

[00:40:06] Speaker 03:
the particularly strong public interest in access.

[00:40:10] Speaker 03:
So it wasn't as if the court ignored that factor altogether.

[00:40:15] Speaker 03:
But taking your point, Judge Millett, even if it's any detail, the district court here was not required to weigh the particular factor.

[00:40:26] Speaker 03:
As I said, when a judge is analyzing sentencing factors under 1353A, a judge is not required to

[00:40:36] Speaker 03:
explain how it weighs any particular factor.

[00:40:39] Speaker 03:
All that's necessary is that the court consider the factors and explain it so that the public and this court can review it.

[00:40:48] Speaker 03:
And here the court did that.

[00:40:50] Speaker 05:
It indicated that it- We said that same analysis applies to hubrative factors in the common law, right?

[00:40:55] Speaker 05:
A judicial actress access with its very powerful presumption in favor of disclosure.

[00:41:01] Speaker 05:
Do you see a pattern in our cases that we-

[00:41:04] Speaker 05:
Do it the same way we do 1353 sentencing factor discussions.

[00:41:08] Speaker 03:
Well, the point is that with any time that a district judge is asked to engage in a balancing test and here we start with a presumption.

[00:41:17] Speaker 03:
Yeah, no, I don't.

[00:41:18] Speaker 03:
I don't know.

[00:41:19] Speaker 05:
This is proposition while you're pronouncing that any time there's a multifactor test.

[00:41:25] Speaker 05:
We treat them all the same.

[00:41:26] Speaker 05:
Our precedent says we don't require to march through things.

[00:41:31] Speaker 05:
If there's some generic body of law that says any multi-factor test, good enough for government work is the rule.

[00:41:37] Speaker 05:
And I'm asking whether you discern in our precedent, our Hubbard precedent, in common law, right of judicial access precedent, that same sort of attitude.

[00:41:47] Speaker 05:
There's maybe reasons for differences with different legal issues, different multi-factor tests.

[00:41:55] Speaker 03:
Well, first, Your Honor, I just want to take issue with the expression you used, good enough for government work, because we in the government try and turn square corners.

[00:42:08] Speaker 03:
So I do not accept that analogy.

[00:42:12] Speaker 03:
So that's it.

[00:42:15] Speaker 03:
When you say, do I discern that in the court's case law in Hubbard and cases since then,

[00:42:23] Speaker 03:
There's nothing in those cases to suggest that the traditional roles that apply when judges are asked to apply their discretion in weighing factors is any different for Hubbard than it is in other contexts.

[00:42:39] Speaker 03:
If the court now finds that Hubbard is different and that a judge is required to express how it weighs certain factors, then

[00:42:50] Speaker 03:
write that opinion and remand to the district court.

[00:42:54] Speaker 03:
But our point is that based on the court's case law as a whole, we don't see any requirement for the district court here to do more than explain how it reached the decision it did.

[00:43:07] Speaker 03:
All right.

[00:43:09] Speaker 04:
Anything further?

[00:43:10] Speaker 00:
I guess I'll ask you this in private too, but just in general on the SEC disclosures, if you assume for the sake of argument that there are judicial records and that some of the materials discussed

[00:43:38] Speaker 00:
in the SEC filings overlap with some of the issues addressed in any judicial records that might exist.

[00:43:48] Speaker 00:
Don't we at least have to remand for the district court to consider the extent to which the SEC filing undercuts the continued basis for keeping any records secret?

[00:44:07] Speaker 03:
the SEC's pleadings disclosed a substantial amount of the materials that were in the search warrant materials, then that could be a basis for remand.

[00:44:26] Speaker 03:
I can't answer the court's question in public session.

[00:44:29] Speaker 04:
All right, so why don't we hear from counsel for petitioner?

[00:44:36] Speaker 01:
Thank you, Your Honor.

[00:44:37] Speaker 01:
And just briefly to respond to a few points made by Ms.

[00:44:40] Speaker 01:
Donnello, I think this court's precedent is clear that the district court is obligated to apply the six-factor Hubbard test with specificity to account for all the various private public interests at stake and to set forth its reasoning with sufficient specificity in order for it to be reviewed by this court.

[00:44:59] Speaker 01:
Most recently in CNN v. FBI,

[00:45:02] Speaker 01:
This court dealt with the district court order that did report to apply each of the Hubbard factors.

[00:45:07] Speaker 01:
This court found reversible error because each of the factors wasn't applied correctly and didn't take into account with this court deemed to be important additional national security context that was implicated in that case.

[00:45:18] Speaker 01:
You can go back to the 1980s to NRA national broadcasting company where this court found reversible error because the district court that would have purported to apply the Huber test did not gave quote short shrift to the the interest in favor of disclosure in that case.

[00:45:35] Speaker 01:
So the notion that this court's precedent existing president doesn't support

[00:45:39] Speaker 01:
requirement that the district court apply Hubbard with specificity I think is unsupported.

[00:45:45] Speaker 01:
I want to be clear too that our objections to the district court's order are not mere semantics.

[00:45:51] Speaker 01:
They're not just about how the district court authored the opinion because it felt constrained in terms of what it could put into the public record.

[00:46:02] Speaker 01:
It is

[00:46:03] Speaker 01:
Evident from the face of the order that the district court considered interests that may be present in other cases but are decidedly not present here, including purported stigma to Senator Burr from disclosure of the existence of the DOJ's investigation.

[00:46:17] Speaker 01:
At the same time, it is also evident from the face of the order that the district court did not consider interests decidedly present here.

[00:46:24] Speaker 01:
I think the district courts reliance on WP2 and its conclusion that that district court decision dictated the results underscores that the district court was doing exactly what the district court said it was doing.

[00:46:38] Speaker 01:
which was applying a categorical rule that quote no disclosure of search warrant materials would be appropriate in a closed non public investigation that has not resulted in criminal charges, and where privacy and governmental interests may be implicated which is effectively

[00:46:55] Speaker 01:
any case in which the government has not, quote, acknowledged the existence of the investigation in a very, seemingly very particular, particular way.

[00:47:04] Speaker 01:
So this is not just a semantics issue.

[00:47:06] Speaker 01:
It's not a dispute about the district court's reasoning not being fulsome enough.

[00:47:11] Speaker 01:
We think it is evident from the opinion itself that the district court applied the wrong standard, which is, as this court has made clear in Leopold and in Unite Against FBI,

[00:47:20] Speaker 01:
though motions to unseal, decisions to seal and unseal are typically reviewed for abuse of discretion, to the extent the court applied the wrong standard, that is a legal error.

[00:47:30] Speaker 01:
With that, Your Honor, we would ask if there are no additional questions with the court reverse.

[00:47:35] Speaker 04:
Thank you, counsel.

[00:47:39] Speaker 04:
We will continue argument ex parte, and the deputy clerk, please close this.

[00:47:49] Speaker 04:
argument and advise us when we may proceed with the ex parte argument.

[00:47:57] Speaker 02:
This honorable court is not adjourned until Friday, February 4th at 930 a.m.