Yesterday I wrote about how United States District Judge John F. Walter issued an illegitimate prior restraint order against the L.A. Times, ordering it not to publish — and to depublish — information derived from a plea agreement made available on PACER, the federal court's docketing system. This morning Judge Walter held a hearing on the issue. I attended. Judge Walter vacated the order, but not without blasting the press and attempting to justify his actions. He did not succeed.
When he issued the temporary restraining order against the Los Angeles times last Saturday, Judge Walter originally set the hearing on the matter — to decide whether to make the temporary order permanent – for July 18, 2018. As soon as the parties filed their briefs on Monday, he advanced the hearing to today, Tuesday. It was clear from that move that he would likely vacate the order. He took the bench promptly and read from a written order. Federal practitioners can spot the pattern: when the judge starts a ruling by explaining the merits of one side's arguments, that's the side that's going to lose. That was the case here.
Judge Walter explained that he had determined that defendant John Saro Balian's plea agreement should have been filed under seal, but that an error by a docketing clerk led to it being captioned as under seal but nevertheless available on PACER. He explained that he had been informed of the issue on Saturday July 14th, and that he was "terribly concerned" that Mr. Balian or his family would be subjected to physical harm if the information became public. He didn't specify the information, but from context it's perfectly clear: the plea agreement shows that Mr. Balian has agreed to cooperate against other figures in the investigation, who include the Mexican Mafia and Armenian crime families. Judge Walter said that he found that he found that prior restraint was justified because the harm threatened was "great and certain," based in part on his own experience trying gang and organized crime cases. As convention requires, he described himself as a strong proponent of the First Amendment, but said that that the circumstances justified the order, particularly because at the time he issued the order it wasn't clear how the Los Angeles Times reporter got the plea agreement.
Judge Walter explained that circumstances had now changed: he now knew how the plea agreement got out, had determined that it wasn't through misconduct by the press, noted that the government and defense had now had the opportunity to protect the defendant and his family, and noted that the information was now public. He therefore denied the request for a longer-term order and vacated his prior order, and said the Times could print what it wanted. But he didn't leave it without harsh criticism of the Times. He suggested that the reporter should have waited for an order from him rather than running the story once she heard the defense protest that the plea agreement should have been under seal. He suggested the Times was wrong to run information about a document that it knew was intended to be under seal — he described it as "exploiting an honest mistake by a docketing clerk."
Balian's lawyer, Craig Missakian, did not quarrel with Judge Walter's ruling vacating the order, saying that the Court couldn't "unring the bell" once the information was in the public record. he complained that the Times had not protected the rights of "a man in chains," and instead had acted irresponsibly to print information for no legitimate purpose.
The Los Angeles Times' attorney, Kelli Sager of Davis Wright Tremaine, was fuming during all of this. One of the hardest things you learn as a lawyer is to sit down and shut up when you're winning. She was winning. But she stood up to defend the Times from the accusations by Judge Walter and the defense. This wasn't wrong: the accusations against the Times deserved refutation even if Judge Walters was lifting the order. Sager asserted that Missakian had misled the Court, suggesting that the Times had gotten the plea agreement through nefarious means even though he knew that the order was available on PACER. She politely but forcefully argued that Judge Walter's justifications did not satisfy legal precedent. Citing the Pentagon Papers case, she pointed out that the Supreme Court refused to support prior restraint even when classified information was wrongfully leaked, and there could be no justification for the Court's action here. Judge Walter responded with the classic criminal court's "think of the children" argument — "I was concerned about somebody's life, and if I erred, I wanted to err on the side of protecting the defendant." That's not the law. Judge Walter ended the hearing, asking Ms. Sager to inform the Ninth Circuit that it would not have to consider her emergency writ of mandate motion because the issue was now moot.
So the Los Angeles Times won, as it should have. But it should never have been subjected to the order in the first place. There was no legal basis for it. The standard the Court articulated — that the danger was "great and certain" — is not the law and not remotely plausible. Prior restraint would only be permissible if there were a compelling government interest and the restraint were necessary to protect that interest and the restraint was the least restrictive means to protect the interest. It wasn't. As Ms. Sager pointed out, the correct response to a fear for Balian's safety was to physically protect him, not to stop people from talking about his cooperation.
The safety justification was particularly unconvincing because of the circumstances of the case. Balian's lawyer and Judge Walter suggested that the story about the cooperation agreement put Balian in danger by notifying gangs that he was cooperation. This is utter nonsense. As I explained yesterday, multiple factors in the public record already strongly suggested that Balian was cooperating. He was a dirty copy pleading guilty to helping criminal organizations, he agreed to delay indictment for weeks, and he waived indictment and pleaded guilty early in the case to an information rather than an indictment. All of those factors suggest cooperation to anyone knowledgeable about federal criminal procedure. Judge Walter's response to that point — which Sager raised — was that "an inference or suspicion is not the same as knowing." That might be true for a court, but criminal organizations don't have high standards of legal proof to decide you're a cooperator. The Mexican Mafia does not wait for admissible proof establishing clear and convincing evidence. As Balian's case shows, these gangs have law enforcement sources. They are experienced with the justice system. They have lawyers experienced with the justice system. If the defense, government, and Court were not already assuming that the Mexican Mafia thought Balian was cooperating and protecting him accordingly, they were being wantonly reckless with his life. Moreover, the mere act of ordering a newspaper to depublish a story served to emphasize the cooperation far more widely and loudly than any newspaper story could have. Judge Walter's entire theory of cause for the prior restraint is nonsensical under any standard, let alone the extreme standard required for prior restraint.
It's good that Judge Walter vacated his order. But it's unacceptable that he issued it in the first place, and unbecoming and regrettable that he blasted the press for printing important information about a federal case. A dirty cop cooperating against gangs is news. They were right to publish. He was wrong to issue the order, and wrong to try to justify it.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/07/17/federal-court-vacates-prior-restraint-order-against-la-times-but-blasts-press-in-attempt-to-justify-it/
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