By Austin Nolen
The Third Circuit Court of Appeals heard oral arguments yesterday over whether or not a list of unindicted co-conspirators in the “Bridgegate” scandal is a public record. One person named on the list, so far identified only as “John Doe” appealed a lower court order requiring the list to be unsealed.
The fight over the names, which drew the U.S. Attorney for New Jersey himself to argue before the appeals court in Philadelphia, began when William Baroni and Bridget Kelly requested the government provide them with the list to prepare for their defense. The two were indicted last year for their alleged role in the Bridgegate scheme.
The government denied that Baroni and Kelly had a right to the list, but provided it voluntarily. One copy was also provided to the court, along with a request to seal. In court yesterday, Paul Fishman, the U.S. Attorney for New Jersey, claimed this was done because “the defense had been talking about leaking information to the media.”
Once the media learned a copy had been given to the court, however, a coalition requested access to the document under both the First Amendment and common law rights to access judicial documents.
After trial judge Susan Wigenton ordered the list to be provided to the media, “John Doe” intervened for the first time to request that she reconsider, and when that request was denied, Doe appealed to the Third Circuit.
During the argument, attorneys for the media and Doe laid claim to important values of transparency on the one hand and privacy on the other, but the release of the list will ultimately depend on a technical legal issue. Oral arguments centered on two main questions: whether or not the document is subject to a right of access and if it is, whether it can still be sealed.
A First Amendment right of access to access criminal proceedings, based on the Anglo-American tradition of open trials, was first recognized by the U.S. Supreme Court in Richmond Newspapers, Inc. v. Virginia, while the common law right of access is a direct inheritance from the British legal tradition. The legal questions asked under the two standards are separate and may result in different conclusions with respect to the same document.
The media coalition claimed that the document is a bill of particulars, a formal legal document similar to an indictment which the Third Circuit has previously found to be presumably public under the First Amendment. The media also claim that merely by providing the list to the court, it became subject to access under the common law.
Doe and the government, on the other hand, claim that the document is neither a bill of particulars nor was it truly filed with the court. U.S. Attorney Fishman conceded that “we could definitely have been clearer” in designating the document, but said that the document was still ultimately a private discovery document.
The stakes for both sides on this question are high: as Judge Kent A. Jordan, who aggressively questioned all parties throughout the two-hour hearing, told media lawyer Bruce Rosen, if the media lose on this first issue, it’s “game over” for access to the document.
Even if the media win this question, however, Doe and the government pointed out that the privacy interests of the co-conspirators may still trump the right to access the names. Rosen countered by arguing that, because the case involves high-profile political figures and public officials, “everyone on this list has already been publicly identified in some way.
Doe’s lawyer, Jenny Kramer, and Rosen ended their arguments with pleas about privacy and the public interest. As Kramer said in closing, “Rosen says the ink is already in the milk, but that’s not true. We’re asking the court not to open the pen.”
Rosen, in contrast, argued that “this issue has taken center stage in New Jersey and national politics.”
John Doe’s Appeal Brief:
Media Appeal Brief:
Government Appeal Brief:
John Doe Reply to Media and Government:
Media Response to Government:
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