WASHINGTON — A federal appeals court indicated Wednesday it may overturn a judge’s ruling that blocked the public’s access to a search warrant for Sen. Richard Burr’s cellphone, which was part of an investigation into his stock trades.
All three judges on the appellate panel in Washington were critical of a District Court judge’s ruling in May that rejected a request by the Times to review the sealed warrant and affidavit that prosecutors used to justify obtaining the senator’s phone.
Federal agents and prosecutors at the time were investigating whether Burr, a North Carolina Republican, illegally used information from congressional briefings about the coronavirus to sell $1.65 million in stock before the pandemic hit. Burr’s lawyers announced in January 2021 that the Justice Department had notified them it would not bring charges.
Katie Townsend, an attorney for the Times who works for the Reporters Committee for Freedom of the Press, argued on Wednesday at the U.S. Court of Appeals for the D.C. Circuit that the public has an interest in accessing the records and that the lower court judge misapplied the law in rejecting the newspaper’s request to review them.
“It’s incredibly important for the court of appeals to give access to the underlying documents,” Townsend said in an interview after the arguments.
The appeal came in response to a terse, yet sweeping 10-page ruling by Chief U.S. District Judge Beryl Howell that found “no disclosure of search warrant materials would be appropriate in a closed, non-public investigation that has not resulted in criminal charges, and where individual privacy and government interests may be implicated.”
The appeals court judges, however, were concerned that Howell did not conduct a proper and detailed analysis weighing the public interest in accessing the records against those of Burr and the government in keeping them secret.
“We can’t even find a sentence in the analysis section acknowledging and discussing the public interest in favor of disclosure,” Judge Patricia Millett said. “It only addressed one side of the privacy arguments in this case.”
Judge Greg Katsas seemed perplexed that Howell did not take into consideration the records involved “the activities of a sitting senator. You’re talking about alleged insider trading by members of Congress, which is currently very much in the public discourse.”
It is not clear when the panel will issue an opinion. The court can either uphold Howell’s ruling, order the release of the records or direct the judge to more fully consider the newspaper’s legal arguments.
Elizabeth Danello, the Justice Department’s lawyer, argued during the hearing that Howell had carefully weighed all the issues in the case and the panel should reject the Times’ appeal. “Whether the court could have written the opinion in a different way, it could have,” Danello said, adding “the court was sensitive to a heightened public interest in this case.”
Danello did not acknowledge that a search warrant was obtained by the FBI nor a Justice Department investigation of Burr.
Burr, who is not seeking reelection, was one of several senators — including Democratic Sen. Dianne Feinstein of California — whose sales and purchases of stock were scrutinized by the Justice Department to see if they violated a congressional insider-trading law. But his was the only case in which warrants were obtained. All such investigations were closed without charges being filed.
The senator appears to remain under some legal scrutiny. The Securities and Exchange Commission is conducting its own civil probe into the stock trades by Burr and his brother-in-law, Gerald Fauth. The agency disclosed the investigation in court papers it filed in October, as part of an effort to compel Fauth to testify in its probe.
The filings noted that Burr sold $1.652 million in stocks — “all but one of the equities in his and his wife’s” retirement account — on Feb. 13, 2020, at a time when he had “material nonpublic information concerning Covid-19 and its potential impact on the U.S. and global economies.” It noted that Fauth sold stocks shortly after speaking to Burr that same day. Attorneys for Burr and Fauth did not immediately respond to an email seeking comment.
