Cogan Ramps Up Pressure on Northern District

Eastern District Judge Brian M. Cogan has faulted the U.S. Attorney’s Office in Syracuse for offering pabulum rather than specific facts to defend the continued sealing of court documents being sought by the Associated Press.

Cogan, who sits in the Brooklyn-based Eastern District of New York, last week rejected the Northern District office’s letter submission and ordered it to submit a brief in support of its position that the documents should remain out of public view. Read Cogan’s order.

The AP is seeking the documents because of the revelation that the sealed file contains relevant information to business dealings between Donald Trump, the front runner for the Republican presidential nomination, and a mob-connected figure, Felix Sater.

Sater pled guilty to a $400 million pump-and-dump stock swindle in 1998 and agreed to cooperate with the prosecution. In exchange for his cooperation the court file of his criminal case was sealed. Over a decade later, Sater was fined $25,000 but sentenced to no jail time.

The case before Cogan involves a criminal contempt investigation of two New York lawyers, which at its root has claims that one of them used documents from Sater’s sealed file to sue him for using his court-afforded anonymity to pull off a far larger real estate fraud. The tangled route from the 1998 sealing order and the contempt investigation being overseen by Cogan is laid out in a WiseLawNY article posted on March 21.

In seeking access to the file, AP is seeking to build upon prior reporting that Trump had licensed the use of his name to major projects such as Trump SoHo and Trump International in Fort Lauderdale to a development company where Sater was a principal. Both projects failed and ended in litigation.

AP and other news organizations have reported that, even after learning of Sater’s criminal past, Trump in 2010 tapped Sater for a business development role with the title of senior advisor. Trump was also reported to have given Sater an office on the same floor as his at the Trump Organization headquarters.

When Cogan ordered an investigation of the two New York lawyers for contempt, Frederick Oberlander and Richard Lerner, the US. Department of Justice instructed the Northern District of New York to handle the probe because the Eastern District had reached the underlying cooperation agreement with Sater.

Both the Eastern and Northern districts have filed submissions at Cogan’s directive in response to AP’s motion to release approximately 200 documents contained in the investigative file. Cogan has created a separate public file in connection with the AP’s motion (16-mc-706) while keeping the investigative file (16-mc-557) under seal. Cogan has instructed litigants to file all submissions to the sealed file so that he can screen them before placing them in the public file. Read the order.

That system has produced an anomalous result. The Eastern District’s three-page letter, with an appendix itemizing its views as to which documents in the file should be unsealed, is in the public file. Meanwhile, the Northern District response remains in the sealed file even though Cogan’s April 26 order, criticizing the response is in the public file.

This leaves the Northern District at a disadvantage. Cogan’s one-paragraph order quotes a flaccid explanation offered by the Syracuse-based office for continued sealing of nine documents i.e. that those documents “protect, and continue to protect, where appropriate, important and countervailing interests outweighing public disclosure.”

That sounds like an exceedingly poor explanation when sealing can only be justified upon a showing of particularized need. But, without access to the Northern District’s full submission, there is no way to assess the validity of Cogan’s reasoning.

Indeed, the public would not even be aware that the reports the Northern District is trying to shield from disclosure are nine reports that it has submitted to Cogan on the status of its investigation. The public is only aware of that information because it is contained in the Eastern District’s letter, which is a part of the public file.

In his March 3 order, addressing AP’s unsealing motion, Cogan severely criticized the prosecution, without differentiating between the Eastern and Northern districts, for failing conclude the investigation of Oberlander and Lerner, which has been pending for four years. He wrote, “it is hard to fathom how the Government expects to receive continued assistance from informants when the Government’s inaction here demonstrates only that, once assistance is procured, the informant will be hung out to dry, left to fend for himself.” Read the order.

In rejecting the Northern District’s submission, Cogan further ramps up pressure on the lead prosecutorial agency to take action to bring the two alleged leakers to heal. This is so even though the sensitive information that he cites has having been leaked has long been in the public domain and much of the underlying criminal file has likewise been unsealed. See WiseLawNY, March 12 article.

A hearing on AP’s motion to unseal is now scheduled for May 10.

 

DanielJWise©2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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