The criminal case of United States v. George Santos has taken a turn that resembles his public persona. His attorney has filed a Response to two motions to identify the sureties who have co-signed Mr. Santos's $500,000.00 bond. Mr. Santos's attorney, as expected, opposes both motions, one of which was filed on behalf of the New York Times and the other one of which was filed on behalf of ABC News and a number of other news organizations. Download United States v. Santos Response of George Santos. Doc. No. 17 filed 06.05.23 (E.D.N.Y. Cr. Case No. 23-CR-197)
In the Response, Mr. Santos does not argue the actual law and does not prove the facts of his Response.
On the law, the Santos Response argues that the standard for sealing documents that supposedly applies in the Third Circuit, should apply in this case pending within the Second Circuit. According to the Response, the parties seeking to overcome secrecy must prove a compelling interest and offer a narrowly tailored means to secrecy. This is not the law, not in the Second Circuit and not in the Third Circuit, either.
The burden everywhere is on the party asking for the secrecy to prove that secrecy serves a compelling interest and is narrowly tailored to serve that interest. The Santos Response turns the burden of proof on its head, removing his burden to prove secrecy and trying to shift the burden over to the parties seeking disclosure, which of course is the opposite of the law in every federal Circuit, in the Second Circuit ignored in the Santos Response, as well as in the Third Circuit.
(Parenthetically, the Santos Response argues for some reason that settlement agreements in civil cases are not sealed under Third Circuit case law. Third Circuit law is to the contrary, and has been to the contrary for almost 40 years, but the Response does not address it: Bank of Am. Nat'l Trust & Sav's Ass'n v. Hotel Rittenhouse Assoc's, 800 F.2d 339, 343-44 (3d Cir. 1986) (holding that "the court's approval of a settlement or action on a motion are matters for which the public has a right to know about and evaluate.").)
Even applying the test prevailing in the Third Circuit, then, the result is compelling that sureties on a bond for the release of a Member of the United States Congress on criminal charges is 'a matter for which the public has a right to know about and evaluate.' In its own Order in this case Setting Conditions of Release and Appearance Bond, this Court previously required that the co-signing sureties identify themselves on the bond. Download United States v. Santos Order Setting Conditions of Release and Appearance Bond filed 05.10.23 (E.D.N.Y. Cr. Case No. 23-CR-197) ( "cosigned by the financially responsible sureties identified on this bond"). The only way to know that the sureties are "financially responsible" is for the Court to accept that as proven, the sureties having been "identified on the bond." Since the Court must approve the sureties as "financially responsible" for the $500,000.00 bond which they co-signed on behalf of the Member of Congress in this criminal case, this is a matter about which the public has a right to know and evaluate and the identities of the sureties are crucial to this evaluation.
. The Santos Response also fails to meet its burden to prove the facts which are put forward to support it. In the Response, Mr. Santos contends that his sureties would be harassed and perhaps even hurt if their identities were revealed to the public. As factual "support," Mr. Santos attached one (1) hidden report of one (1) labelled threat supposedly called in to the Capital Police Department; we do not know if these representations are true, because Mr. Santos has hidden the report from us and requested that it be sealed, no further explanation given beyond his asking that it be sealed from public view.
In the end, Mr. Santos's argument is that the two sureties that co-signed his bond (a third pulled out of co-signing it, he says), which again is a $500,000.00 bond in a criminal case against a Member of Congress, should not be made known to the public.
Resolution of this matter seems simple enough: The Magistrate Judge should order the sureties' identities to be disclosed to the public in this peculiar case.
Postscript of Wednesday, June 7, 2023:
After this article was written, and on the same day, U.S. Magistrate Judge Anne Y. Shields ordered disclosure of the identity of the sureties who co-signed the bond in this criminal proceeding against a Member of Congress. However, the Order is under seal and so is the Bond along with the identity of the sureties, at least until Friday, June 9, 2023. That is the deadline set by the Magistrate Judge for any appeal from this Order to the U.S. District Judge.
While as noted the Order of June 6, 2023 is sealed, the docket entry for this Order is open to the public. Here is the text of the docket entry for this sealed Order in United States v. Santos, Order entered by Shields, USMJ, filed June 6, 2023 (E.D.N.Y. Cr. Case No. 23-Cr-197):
ORDER: 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. So Ordered by Magistrate Judge Anne Y. Shields on 6/6/2023. (GO) (Entered: 06/06/2023)
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