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By Matthew Russell Lee, Video, thread, Patreon

SDNY COURTHOUSE, Aug 4 – The U.S. Treasury employee accused in October 2018 of leaking Suspicious Activity Reports about Paul Manafort and others, Natalie Edwards, pleaded guilty to one count on January 13, 2020 before U.S. District Court Southern District of New York Judge Gregory H. Woods.

  Edwards got a plea agreement for between zero and six months and a $9500 fine which her lawyer afterward told Inner City Press was a standard fine. Video here; live tweeted thread of plea proceeding here. More on Patreon here.

 On July 21 Judge Woods held a 5 pm proceeding at which he was asked to treat Edwards' filings as if they had never been filed, and withhold them from the Press and public.

Inner City Press immediately filed opposition, to Judge Woods chambers, copying the new defense lawyer Stephanie M. Carvlin and AUSA Daniel Richenthal, below.

 On July 22, after docketing Inner City Press' letter or application, Judge Woods to his credit  provided time to Edwards or her lawyer to respond: "ORDER as to Natalie Mayflower Sours Edwards. On July 21, 2020, a representative of Inner City Press requested that the Court file on the public docket of this case copies of materials that the defendant had previously submitted to the Court ex parte. See Dkt. No. 60.... The Court directs that counsel for the defendant respond to the application no later than July 30, 2020. To the extent that the United States wishes to be heard with respect to the application it is directed to respond by the same date. Any reply in support of the application must be filed no later than August 6, 2020."

 Now on August 4, Inner City Press has filed its reply, including: "Press Access in US v. Edwards, 19-cr-64 (GHW) - Timely reply in support of application   Dear Judge Woods:   

 I write pursuant to your July 22, 2020 order and in further support of the July 21 application for press and public access to submissions to this Court by defendant Natalie Mayflower Sours Edwards, that triggered a judicial conference. They are judicial documents, contrary to the July 30 opposition submitted by Edwards' counsel.   

Given that Edwards' submissions triggered judicial action - a conference - they are even more judicial document than, for example, the documents submitted in support of a motion to compel discovery in Alexander Interactive, Inc. v. Adorama, Inc., 12-cv-6608 (Castel / Francis), 2014 WL 4346174,at *2 (S.D.N.Y. Sept. 2, 2014) (they "presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents.) 

  See also, In re Omnicom Grp., 2006 WL 3016311 at *2. (a "series of letter briefs with accompanying exhibits…certainly qualify as judicial documents"); Schiller v. City of N.Y., No. 04 CIV. 7921(KMK) 2006 WL 2788256, at *1 (S.D.N.Y. Sept. 27, 2006)(briefs and supporting papers submitted in connection with a dispute over the confidentiality of discovery materials were "created by or at the behest of counsel and presented to a court in order to sway a judicial decision" and were therefore "judicial documents that trigger the presumption of public access").   

  Here, defendant Edwards who has pleaded guilty made submissions to this court triggering a conference. They were not scheduling communications - no conference had been announced. In any event, the Second Circuit has observed that a document is a judicial document “not only if the judge actually relied upon it, but also if ‘the judge should have considered or relied upon [it], but did not.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 n.3 (2d Cir. 2016) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). 

  This Court in Docket No. 48 stated that "Earlier today, the Court received an ex parte submission from the defendant via email. The Court wishes to schedule a conference to discuss the issues raised by that submission."  That was the Court acting on, and considering, the document.

 The Court continued: "To the extent that the submission contains information of a sensitive or classified nature, the information should be shared with defense counsel in a manner that complies with applicable law and regulation." The proper approach here may be partial redaction, not withdrawal in full. That would be a terrible precedent.    The Court clearly considered and assessed the documents: "The Court's preliminary assessment of the submission suggests that the Court should share a substantial portion of the submission with both parties and their counsel in order to permit the Court and the parties to evaluate and fully address the issues raised." The goal was for the Court to fully address the issues in the documents. They are judicial documents. 

   In fact, Assistant US Attorney Richenthal on July 7, 2020 wrote into the docket to "request[] that at least one category of information provided to the Court, but currently redacted by the defendant from the Government’s view, be promptly released to the Government... information, including but not limited to names, concerning alleged whistleblowers involved in or related to the conduct at issue in this case. The Government understands that the submissions provided to the Court are not so redacted." It is imperative that these documents, on which the Court held conference(s) and seeks or sought to fully address, be released.   

 At least at that time, the US Attorney's Office / DOJ appeared to foresee appropriate docketing of the documents. AUSA Richenthal notes that some information "would be redacted from any public filing pursuant to Federal Rule of Criminal Procedure 49.1.   

 The US Attorney's Office / DOJ stated in that letter, "[w]hile both the First Amendment and common law rights of access to judicial documents, and this Court’s individual rules, require that the defendant’s submissions be publicly docketed" (emphasis added).

 It was true that, and it remains true now, even if the US Attorney's Office / DOJ is for some reason no longer arguing for it, as least as of this writing.    Inner City Press and I agree with that previous US Attorney's Office letter "that the Court could find that any privilege or corresponding work product protection was waived by the provision of such communications to the Court, given the potential ramifications of such a waiver. Likewise, we are "unaware of any authority permitting an ex parte submission, whether in whole or in part, by a defendant in connection with sentencing."

Nor has Edwards' counsel, formally given the opportunity, provided any such authority.     See also, e.g., United States v. Dwyer, 15-cr-385-2 (Nathan), 2016 WL 2903271, at *2 (S.D.N.Y. May 18, 2016) (denying defendant’s request to submit sentencing letter to court without providing a copy to government).

The US Attorney's Office argued in this case, "a] contrary approach would fail to provide the Court with the full picture of relevant facts and circumstances—and thus what it needs to impose a fair sentence." This also applies to the impacted and interested public.     Counsel for Edwards appears to misunderstand the purpose for which Judge Engelmayer's actions in Randall were cited - even granting the danger faced by a police witness, after Inner City Press' application the possibility of press and public review was provided, albeit in a separate courtroom in 40 Foley Square. In Griffith, the counsel for the defendant (who had not pleaded guilty) quickly reversed his request to withhold or seal documents.  

 In this case it is not even a matter of sealing or redaction - the attempt is to withdraw the documents as if there were never part of the case. This would be a terrible precedent, in terms of press access and transparency; it is unacceptable. If some limited redactions are needed to protect national security or other information subject to withholding, that is perhaps acceptable. Counsel's argument that the public has no interest in this portion of this high profile political whistleblower / leaker case should be rejected. Oral argument or presentation may be beneficial on these issues - either telephonically or in person, as I have been covering this case from the SDNY Press Room throughout.   

 For the reasons stated, the documents should be made part of the record and be made available to the press and public.   Respectfully submitted,  Matthew Russell Lee, Inner City Press." Watch this site.

  Back in January the allocution almost broke down when Judge Woods asked Edwards if she knew what she did was wrong. She mentioned that word whistleblower then got cut off.

  After Assistant US Attorney Maurene Comey and her colleagues conferred with Agnifilo and
Jacob Kaplan, also with Brafman & Associates, the plea got back on track. Edwards said she knew the disclosure to BuzzFeed was not authorized.

  Outside the SDNY courthouse afterward, Inner City Press and others puts questions to Agnifilo. Inner City Press asked if Edwards had sought whistleblower status. Agnifilo said genially that he declined to answer. He added that he will be seeking a non incarceratory sentence. The sentencing is set for June 9 at 4 pm. Watch this site. More on Patreon here.

Back on January 30, 2019 on Worth Street, Inner City Press asked her Kaplan about a statement made during the initial proceeding, that another person's device was also search. Kaplan acknowledged that had been said, adding that he didn't know who it was. Video here, Vine here.  

Here's from what was announced in the Complaint in October 2018: "Beginning in approximately October 2017, and lasting until the present, EDWARDS unlawfully disclosed numerous SARs to a reporter (“Reporter-1”), the substance of which were published over the course of approximately 12 articles by a news organization for which Reporter-1 wrote (“News Organization-1”). The illegally disclosed SARs pertained to, among other things, Paul Manafort, Richard Gates, the Russian Embassy, Mariia Butina, and Prevezon Alexander. EDWARDS had access to each of the pertinent SARs and saved them – along with thousands of other files containing sensitive government information – to a flash drive provided to her by FinCEN. She transmitted the SARs to Reporter-1 by means that included taking photographs of them and texting the photographs to Reporter-1 over an encrypted application. In addition to disseminating SARs to Reporter-1, EDWARDS sent Reporter-1 internal FinCEN emails appearing to relate to SARs or other information protected by the BSA, and FinCEN nonpublic memoranda, including Investigative Memos and Intelligence Assessments published by the FinCEN Intelligence Division, which contained confidential personal, business, and/or security threat assessments. At the time of EDWARDS’s arrest, she was in possession of a flash drive appearing to be the flash drive on which she saved the unlawfully disclosed SARs, and a cellphone containing numerous communications over an encrypted application in which she transmitted SARs and other sensitive government information to Reporter-1." We'll have more on this.

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