So, the Second Circuit Court of Appeals has ruled (pdf) in the case where the New York Times is trying to get the wiretap applications from the Emperor’s Club prostitution investigation that led to the downfall of Eliot Spitzer. Previously, the District Court had ruled that the Times had established "good cause" why the wiretap applications should be unsealed and available to the public as a judicial record. The District Court judge, Jed Rakoff went on to leave a little trail of breadcrumbs about how NYT might pry loose additional information at a later time via congressional hearings (I take it). This assumes that whatever the Times would find in the applications would be interesting enough that some congressional committee would be galvanized into action. Judge Rakoff ought to know, he reviewed those applications in camera before issuing his ruling.

Bad news for those who were waiting with bated breath to see what was in the wiretap applications: the Second Circuit has overturned Judge Rakoff’s decision–it said that "good cause" had not been established. They also found that New York Times did not have standing to demand the unsealing of the records because they were not an "aggrieved party," that is, they were not a party who had been wiretapped, or had an interest of theirs affected by the existence of the wiretap.

However, the appellate court left a few breadcrumbs as well. They go ahead and admit they have been unable to find a SCOTUS case defining "good cause" in this context. They hang their entire analysis on NBC v. DOJ, 735 F.2d 51 (2^nd Cir.1984), a case where they previously found that the party trying to unseal wiretap applications was found to lack standing as an aggrieved party. Seemed like a gilded invitation to take this to Supreme Court.

The 2^nd Circuit decision did not deal with the elephant in the room, namely that there are suspicions about the origins of the investigation and DOJ should not be allowed to cover up wrongdoing–if any occurred–by cutting a deal with the defendants so that the wiretap applications were never unsealed and turned over in discovery.

The NBC decision, wherein NBC sought to unseal wiretap information to defend itself in a libel suit relating to stories it had aired suggesting that Wayne Newton was mixed up with the mafia, involved very different competing interests. Part of the reasoning relating to NBC was that there were ongoing law enforcement needs at stake, like protecting the confidentiality of informants as well as privacy issues.

However, here there is no ongoing investigation and Judge Rakoff , after reviewing the documents, said that any such concerns could easily be dealt with, in these documents, by redactions.

Further, unlike the NBC case, here DOJ has a clear conflict of interest because it is the integrity of a DOJ investigation that has been called into question and DOJ alone holds the information that would clear up any suspicions, one way or the other. A neutral judge having reviewed the actual materials requested, concluded that there was something in them of sufficient public importance to order them unsealed in redacted form.

Back during the height of furor over the firing of eight US Attorney’s, Sheldon Whitehouse gave a speech at CitiBar in which he said that he had reviewed information, not all of which he was able to talk about, that caused him to form a serious concern that maybe US Attorney’s Offices were being used at political hit squads (my term not his). We know from his book that David Inglesias felt that he was being pressured into doing a hit. Whether others may have done so on their own initiative, or because they were pressured to do so, remains a mystery.

In that context, and in the context of the controversy concerning the prosecution of Don Siegelman, the decision to call up a sitting governor–who you have not indicted–and tell him about the embarrassing (but apparently not indictable) fruits of your Grand Jury investigation (how much GJ material was discussed? Rule 6e anyone?), seems odd at best. Certainly they were not trying to "flip" Eliot Spitzer?

I assumed from the first time I heard about this motion that it was going to end up going to the Supreme Court. No matter who won 2nd Circuit, I didn’t think it should end there. This is such an important issue of balancing privacy rights vs. government transparency and accountability. Really important. Much more important than whether NBC was going to lose a libel case to Wayne Newton.

Oh, and to the extent that the Emperor’s Club investigation may have been iffy, that would make the American People, and their right to know what the government is doing in their name, the aggrieved party.