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George Santos's Bail Guarantors Must Be Disclosed—but the Order so Holding Is Sealed Pending Appeal
(The appeal is an appeal to the District Court, so it will likely be resolved fairly quickly.) [UPDATE 6/20/23: The District Court affirmed the disclosure order; the guarantors' names will be released 6/22, at least unless they "seek to withdraw from" being guarantors.]
From Magistrate Judge Anne Shields (E.D.N.Y.) today, in U.S. v. Santos:
For the reasons contained in the attached Order, the motions to unseal the identities of the Suretors who signed the Bond for Defendant's pretrial release, filed herein at Docket Entries 13 and 14, are granted. To allow Defendant to appeal this ruling to the District Court, the Clerk of the Court is directed to maintain the attached decision and all previously sealed documents, including the Bond, under seal. Any appeal of this Order must be filed by noon on Friday, June 9, 2023.
Here's more on the backstory, from a post of mine on the subject when the motion to unseal was filed:
[Here's an excerpt from] the New York Times' letter motion requesting access to this information …:
The surety records play a significant role in this Court's exercise of its Article III power. The Second Circuit, among other federal appellate courts, has held that the public has a common law right of access to bail hearings. [See, e.g.,] Associated Press v. U.S. Dist. Court for Cent. Dist. of California (9th Cir. 1983) (holding that "pretrial documents, such as those dealing with the question whether [the defendant] should be incarcerated prior to trial … are often important to a full understanding of the way in which the judicial process and the government as a whole are functioning"); United States v. Chagra (5th Cir. 1983) ("Pretrial release proceedings require decisions that attract significant public interest, and invite legitimate and healthy public scrutiny.").
The public interest in openness is particularly strong in this case. The surety records relate to three individuals who have committed large sums of money to ensure that Rep. Santos can remain at liberty, pending further proceedings. This presents an obvious opportunity for political influence, given Rep. Santos's elected position and his dependence on these suretors. {If the suretors are not family members, the surety also may be contrary to Congressional ethics rules. See generally House Ethics Manual (2008).} That risk is further heightened by the fact that the very crimes Rep. Santos has been charged with involve abusing the political process for personal gain.
The public also has an interest in ensuring that Rep. Santos duly appears in court and, thus, an interest in exercising democratic oversight of the effectiveness of the bond. For the bond to be effective, first, the suretors must be individuals with sufficient influence or connection to Rep. Santos that forfeiture of their security would deter him from flight. Second, the amount of the forfeiture must be sufficient that the impact on the suretor would similarly deter flight. And, at the same time, the suretors would need to be free from circumstances that would undermine bail's intended purpose. For example, a suretor who owed sums of money to Rep. Santos potentially would not be appropriate….
[T]he legitimate privacy interests in the surety records appear negligible. The Second Circuit has held that where the privacy of third parties is at issue, courts should consider (1) whether the subject matter is traditionally considered private rather than public; (2) the nature and degree of injury resulting from disclosure; and (3) the reliability of the information contained in the record.
These factors are not a barrier to unsealing. The identity of a suretor is traditionally public. There is no obvious harm that would rise to the level to justify sealing: there is no allegation of wrongdoing by the suretors and there is nothing improper about posting bond for a defendant. And third, the reliability of the information—that certain individuals signed Rep. Santos's bond—is not in question.
For more general background on the constitutional and common-law right of access to court records and court hearings, see the full motion, which is quite readable. I don't know as much about the right of access to criminal records as I do about the right of access to civil records, but the Times' argument strikes me as sound; I'll post an update if Santos's lawyers (or the government's lawyers) file an opposition.
UPDATE: See also this post about a similar controversy in the Samuel Bankman-Fried case.
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Congratulations to Jeremy A. Chase and Alexandra Settlemayer (Davis Wright Tremaine) and Dana R. Green (The New York Times Company), attorneys for the newsgatherers seeking to end concealment of the relevant judicial records.
I never thought I would see the day when a Republican would pretend to be gay to get elected!?!
When the going gets weird, the weird turn pro . . .
— Dr. Hunter S. Thompson
Who says he’s only pretending?
That too. It seems difficult to sift fact from fantasy with respect to Rep. Santos, particularly in the context of his assertions.
I sense he will be incarcerated unless he can bargain for freedom using information about others.
Either way, he lies about so much the fact he didn’t lie about his sexual orientation is man bites dog. Quite frankly I think it has to do with abortion and so most people think a gay man would be pro-choice which would be important in this particular Republican leaning district.
Eras of political prosecutions never end well.
We have an 8th Amendment for a reason, a King was abusing certain rights and we fought a war over it, arguably two (1812 as well) and where are all the small-l liberals reminding us that the sole purpose of bail is to ensure he shows for trial, and that he is presumed innocent, and the rest?
And while I didn’t quite understand the distinction between family members and others raising the bail under the Congressional rules, it isn’t possible to require a Congressman to waive his 8th Amendment rights, is it?!? Valero v. Buckley held that it wasn’t possible to require a waiver of his First Amd rights….
And what about the Horse Doctor’s implication that this is a political prosecution?
‘Eras of political prosecutions never end well.’
Eras of one side declaring they are above the law don’t end great either.
Certainly, court records should generally be open, including bail records to make sure the guarantors aren’t acting collusively to provide mere nominal security.
On the other hand, nowadays there’s the danger that there will be pressure campaigns against anyone who puts up bail for an unpopular defendant. The presumption of innocence might be considered less important than the need to lock up the enemies of the regime. In addition to official denials of bail (an abuse against which Brennan and Marshal, for once, correctly dissented), there could be *unofficial* denials of bail by making it personally risky for anyone to bail out the “wrong” person.
Pretty sure that when someone is being accused of financial crimes, that “who’s paying to keep him on the streets” is a lot more relevant then many other cases.
That said, that bail amount is ridiculous. The guy is a congressman, he’s not running.