Spitzer Wiretap Info Back Under Wraps

Appeals court overturns Times-litigated ruling allowing access

Ever since March 10, 2008, when The New York Times broke the story that then-New York governor Eliot Spitzer was linked to a prostitution ring, questions have lingered over the federal government’s role, interest, and history in the case that brought down the governor.

One set of documents that could shed light on the matter are materials related to the wiretap that ensnared Spitzer, including the applications investigators filed with New York-based district court judges requesting permission tap a cell phone used by the Emperor’s Club prostitution service—the service used, in turn, by Spitzer.

And today a three-judge panel at the Second Circuit Court of Appeals ruled in a case being waged by The New York Times that the general public has no right to see those records.

“We appreciate that this panel gave serious consideration to what was a novel issue, even if we are disappointed with the decision,” Times counsel David McCraw (who has contributed to CJR) told CJR shortly after reading the ruling.

The case began in December 2008, when the Times moved to unseal the wiretap materials. In February 2009, Judge Jed Rakoff of the Southern District of New York agreed with the request. He ruled that the applications were court records, and that court records carry a long presumption of public access. Furthermore, Rakoff held that a federal wiretapping statute makes it clear that judges have the discretion to release wiretap applications if there is “good cause” to do so—and the judge determined that Congress, in writing that standard, meant to allow judges to weigh the public’s common-law right to access the documents as they would any other judicial record in making their determinations.

Even though Spitzer and sixty-six other people were mentioned in the documents, concerns about privacy were abated by the Times’s agreement with the government to accept copies with Spitzer’s name intact, and all others redacted.

“As much as we value public access, we didn’t see a court as likely to rule against their privacy interests,” said McCraw. But McCraw argued that Spitzer, by virtue of his being a public official at the time of the taps, and through his subsequent public addressing of the subject, however circumspect, had greatly diminished his privacy concerns.

In entering the redaction agreement, the government indicated that it too had no trouble with Spitzer’s name remaining legible if a court were to order the documents to be released. But Spitzer himself does, as he attempted to intervene with a privacy claim. But he didn’t raise an objection with Rakoff, until after the judge had ruled in the Times’s favor and the government had initiated its appeal. Rakoff said that the ex-governor was simply too late, writing, “This Court is not without sympathy for Mr. Spitzer’s desire to avoid another round of the salacious coverage that has attended his involvement with the Emperor’s Club. Sympathy, however, can neither create jurisdiction nor obviate untimeliness.”

Rakoff’s ruling was stayed while the government sought an appeal at the Second Circuit. And in today’s ruling, the appellate court overturned Rakoff, ruling that The New York Times’s request did not meet the “good cause” standard—one, judges noted, defined neither by Congress in its 1968 statute nor by the Supreme Court. While the panel agreed with Rakoff that the wiretap applications were indeed judicial records, they found that those applications were—like other classes of court records involving trade secrets, grand juries, or other sensitive matters—not subject to release. (Spitzer was allowed to participate at the appellate level on an amicus basis, but his or any other privacy concerns are absent from the ruling.)

Key to the decision was the appellate court’s finding that Congress, in drafting the “good cause” standard, had meant to supercede the common-law tradition of open access, rather than incorporating or adopting it. Furthermore, the court pointed to 25-year-old Second Circuit precedent (interestingly enough, stemming from NBC’s request to see similar documents after Wayne Newton famously sued the network for a report suggesting he maintained links to Las Vegas mafiosi): the finding that the only parties with a chance of meeting the statute’s “good cause” standard are those aggrieved by the wire tap—people, in other words, whose conversations were captured by the tap.

“We believe the law is broader than that,” said McCraw. “We still believe that public access to these records is important to monitoring the work of law enforcement.”

The New York Times is weighing an appeal to the full Second Circuit.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.