Zoe Tillman writes for The National Law Journal, an American Lawyer affiliate.
The U.S. Justice Department came under intense scrutiny last month following revelations that it had reviewed reporter telephone and email records in government leaks cases. One leak case turned heads for another reason: the discovery of errors by court staff that kept unsealed documents out of the public eye.
U.S. District Chief Judge Royce Lamberth in Washington released an order May 23 disclosing administrative missteps that left unsealed search warrants and other documents off of the public dockets. "The Court apologizes to the public and the media," Lamberth wrote.
It was a rare public mea culpa from a federal judge. The errors promoted a review by the clerk’s office of all search warrant records dating to 2004 to make sure sealed and unsealed materials were properly handled. Lawyers who practice in the court didn’t see the slip-up as a sign of a systemic problem, but the errors, the attorneys said, represented a breach of the court’s duty to the public.
The case involved the high-profile prosecution of Stephen Jin-Woo Kim, a former government adviser accused of leaking classified information about North Korea. As part of the investigation, the Justice Department secured a search warrant for Fox News reporter James Rosen’s emails. The warrant was among the unsealed documents that failed to make it onto the public docket until recently.
"The public can only hold the system accountable if they know what’s going on," said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press. "You have to know what’s going on to know what you think of it."
The clerk of the court, Angela Caesar, declined to comment. In an interview shortly after he releasing his order last month, Lamberth said that an initial review suggested the mistakes were the result of human error in the clerk’s office. He said he was embarrassed by the situation. "We’re a public institution; we’re accountable to the public," he said. "We shouldn’t allow this to happen."
Laura Handman, a First Amendment specialist and partner at Davis Wright Tremaine, commended Lamberth for publicly acknowledging the errors and said the court was taking the right steps to figure out what happened and to fix it. Besides the records review, Lamberth directed court staff to create a section on the court’s website where the public can to review unsealed search warrants.
"Regrettably, these mistakes happen, and this very important information has not been available to the public," Handman said.
ORDER SHOULD HAVE BEEN UNSEALED
According to Lamberth’s order, the first administrative error happened in November 2010, when the clerk’s office failed to place an unsealed order on the public record.
Lamberth, in the 2010 order, found that the government wasn’t required to give notice to a subscriber whose emails were the subject of a search warrant — in this case, Rosen.
The ruling was notable in light of growing interest in the Justice Depart­ment’s pursuit of leaks cases, Handman said. The issue came back into the spotlight last month after The Associated Press publicly disclosed that the Justice Department reviewed two months of phone records for a group of AP reporters and editors.
Lamberth said he learned in late May that his 2010 order was never unsealed, after reporters asked about it. (Kim, represented by Chadbourne & Parke’s Abbe Lowell, is due in court on June 4 for a status conference.)
A year after the first administrative errors in Kim’s case, the clerk’s office again failed to enter a series of unsealed search warrants and related materials into the public record as ordered by a judge in November 2011. The documents included the warrant for Rosen’s emails. According to Lamberth, the clerk’s office put the unsealed materials on the public record on May 16 after fielding questions from the press.
Lamberth said it appeared supervisors in the clerk’s office who were supposed to make sure court orders were carried out failed to do so. He said the court was reviewing how it handled quality control.
Washington solo practitioner Pleasant Brodnax III, who litigates in the federal trial court, described the errors as an aberration. "It has been my experience that transparency is the rule, rather than the exception, with this Court," he said via email.
Solo practitioner Richard Gilbert, legislative chairman of the District of Colum­bia Association of Criminal Defense Lawyers, said he was concerned about the number of documents the court allowed to stay under seal.
The switch to electronic docketing in U.S. federal courts made it harder for reporters and the public to access search warrants, Leslie said. Unlike paper copies that used to be available for review in clerks’ offices, he said, warrants weren’t as easily accessible through the electronic system. The fact that the public has to pay to access electronic files is another barrier, he said.
Given the significance of Lamberth’s 2010 order on the search warrant disclosure and broader public interest in the Obama administration’s pursuit of leaks cases, Handman said, "had all of this been revealed two-plus years ago, it would have put that much more focus on it."