As readers of this series now know, US District Court Judge Jed Rakoff is knowledgeable in the laws governing the release of "judicial records" and in the backstory of what happens on Wall Street. Judge Rakoff also issued a string of decisions unsealing the wiretap applications and interim reports used to justify time extensions of those wiretaps in the Eliot Spitzer prostitution case, aka the Emperor’s Club case.
The New York Times is hot on the trail of why the feds, who normally have more important things to do, were investigation a prostitution ring where there were no aggravating factors that we know of (like drug distribution. violence, human trafficking, etc.).
Contrary to what you might think based upon a sweeping statement made by the Times, Judge Rakoff’s decision is NOT giving them a walk through the AUSA’s entire investigative file, or even all of the Grand Jury material. All Judge Rakoff has the power to give to the NYT right now are "judicial records".
Under a case called Amodeo, a judicial record is whatever the judge read, saw, or heard, and used to make a decision in the case. There is a presumption that judicial records should be public, so that the public can know if the judge is doing a good job (competence), and whether he is gaming his decision (corruption).
But, right now, because the correct motion is not before him, Judge Rakoff does not have the power to give the NYT access to the rest of the Grand Jury material.
So, I found part of the February decision very interesting because it seemed to be laying out a road map for the Times to get the rest of the GJ material.
In the instant case, there is an obvious interest in obtaining information about the origins of the investigation that led, ultimately, to the resignation of the Governor of New York. Indeed a Congressional Committee has even called for the examination of the reasons underlying the initial decision to undertake the investigation. . . .
Why is this important? Because as I told you a long time ago, a motion can be made under Rule 6(e) to unseal Grand Jury material for use in a Congressional Hearing.
Rule 6(e)(3)(E)(i) allows for the unsealing of grand jury material for use "preliminary to or in connection with a judicial proceeding." In order to do that, a motion would be made before Judge Rakoff, and there would have to be a showing that Congress had a "particularized need" for the GJ information, and that it would be used preliminary to or in connection with a judicial proceeding.
But how does that help Congress? Where is the trial?
There is prior case law, for example Halderman v. Sirica, and a bunch of "in re grand jury…" cases that hold that a Congressional investigation in furtherance of a possible impeachment is indeed a judicial proceeding.
Who might be the subject of such an impeachment inquiry? Any person in a Senate confirmed position who might have made the decision to abuse his or her office to do a political hit job on a sitting Governor.
If, if, if there really was a political hit put out on Spitzer, and if the investigation was improper, Congress has the option of impeaching after the fact. Which means that a properly supported motion could be made to Judge Rakoff to unseal the entire Grand Jury file to a Congressional Committee holding hearings that could result in impeachment.
So, the judge is giving the New York Times those things within his power to give now, and laying out a trail of breadcrumbs that should alert them about how to possibly get the rest released–if they can gin up a Congressional Committee to ask for them.
In case the Times did not notice, I thought it my duty to point it out to them. I think there is a Pulitzer in it for the first outlet to figure out the back story of this case.
This is the final part of a three-part series.