Yet the issue for the court’s consideration was Cohen’s motion to bar the government from reviewing the materials seized, which he filed publicly. It would probably have been better if Judge Wood had held the hearing under seal; she could later have issued a public decision that explained her ruling on the legal question without disclosing client names or any other factual information related to the investigation that may have arisen. The judge instead elected to proceed publicly, but she still should have limited the open-court discussion to argument about the legal issue, retreating in camera for any discussion of client names.
In any event, the prosecutors could easily have handed Cohen’s attorney, Stephen Ryan, a grand-jury subpoena demanding disclosure of the client identities. That would have required Ryan to reveal the identities to the grand jury, but not to the public. Clearly, the prosecutors and Ryan were aware of this: As The Atlantic’s Natasha Bertrand tweeted yesterday, Ryan was prepared to surrender the information to the government under seal.
Apparently, Judge Wood was initially disposed to let that happen. Then, however, the judge allowed Robert Balin, an attorney for the New York Times and CNN, to intervene. Balin, the Times reports, argued that potential embarrassment was not a sufficient reason to withhold the purported client’s name from the public. The judge was somehow persuaded by this frivolous contention. Without providing Hannity any notice and opportunity to be heard on the matter, she directed that his name be disclosed in open court.
The flaw in Balin’s argument is patent. It is true that, if the public has a legal right to know a piece of information, the fact that the information is likely to embarrass someone is not sufficient cause to suppress it. But the public has no right to know the names of people who are relevant to an investigation – even if they are suspected of wrongdoing. Furthermore, even when the government arrests someone or formally accuses someone of a crime in an indictment, the names of uncharged persons are not disclosed. (That is why you see such references as “Cooperating Witness No. 1,” “Unindicted Co-conspirator No. 3,” or “Corporation X” in charging documents.)
Though they apparently chose not to remind Judge Wood of this longstanding policy, government lawyers are well aware of it. The United States Attorneys Manual admonishes that “in all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties.” Unless a person has been formally charged with a crime, not only should the government avoid publicly naming the person; federal prosecutors are further schooled to avoid even an “unnecessarily-specific description.” In other words, while calling Hannity “Client No. 3” would have been proper, even referring to him as “S.H.” would have transgressed the policy. There is no justification for publicizing his full name.
https://www.nationalreview.com/2018/04/sean-hannity-outing-violates-legal-standards/
In any event, the prosecutors could easily have handed Cohen’s attorney, Stephen Ryan, a grand-jury subpoena demanding disclosure of the client identities. That would have required Ryan to reveal the identities to the grand jury, but not to the public. Clearly, the prosecutors and Ryan were aware of this: As The Atlantic’s Natasha Bertrand tweeted yesterday, Ryan was prepared to surrender the information to the government under seal.
Apparently, Judge Wood was initially disposed to let that happen. Then, however, the judge allowed Robert Balin, an attorney for the New York Times and CNN, to intervene. Balin, the Times reports, argued that potential embarrassment was not a sufficient reason to withhold the purported client’s name from the public. The judge was somehow persuaded by this frivolous contention. Without providing Hannity any notice and opportunity to be heard on the matter, she directed that his name be disclosed in open court.
The flaw in Balin’s argument is patent. It is true that, if the public has a legal right to know a piece of information, the fact that the information is likely to embarrass someone is not sufficient cause to suppress it. But the public has no right to know the names of people who are relevant to an investigation – even if they are suspected of wrongdoing. Furthermore, even when the government arrests someone or formally accuses someone of a crime in an indictment, the names of uncharged persons are not disclosed. (That is why you see such references as “Cooperating Witness No. 1,” “Unindicted Co-conspirator No. 3,” or “Corporation X” in charging documents.)
Though they apparently chose not to remind Judge Wood of this longstanding policy, government lawyers are well aware of it. The United States Attorneys Manual admonishes that “in all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties.” Unless a person has been formally charged with a crime, not only should the government avoid publicly naming the person; federal prosecutors are further schooled to avoid even an “unnecessarily-specific description.” In other words, while calling Hannity “Client No. 3” would have been proper, even referring to him as “S.H.” would have transgressed the policy. There is no justification for publicizing his full name.
https://www.nationalreview.com/2018/04/sean-hannity-outing-violates-legal-standards/
