Into the Fire: First Case for DC Circuit’s Newest Entails Sealed Comey Probe Record

In this May 6, 2020 photo, Justin Walker testifies before a Senate Judiciary Committee hearing on his nomination to be a U.S. circuit judge for the District of Columbia Circuit on Capitol Hill in Washington. (Jonathan Ernst/Pool Photo via AP)

WASHINGTON (CN) — Clamoring to access a sealed declaration in the original fight for former FBI Director James Comey’s memos, CNN warned the D.C. Circuit on Tuesday that judiciary must resist pressure to become a “sidekick” of President Donald Trump.

Tuesday’s oral arguments marked the first for Trump-appointed U.S. Circuit Judge Justin Walker, who joined the appeals court this month after a contentious nomination. U.S. Circuit Judge Merrick Garland welcomed the recently arrived jurist and jested with both parties to go easy on Walker. 

After the District Court ruled for CNN, the Justice Department is seeking a reversal now.

The lower court had sided with the news outlet last year, saying the common-law right of access to judicial records supported its right to access the secret declaration by FBI official David W. Archey.

Archey supervised the investigation into Russian interference in the 2016 presidential election when serving as the deputy assistant director with the Counterintelligence Division, and the government used his declaration in 2017 to argue against the release of Comey’s explosive memos on a series of conversations with Trump. 

On Tuesday, both the Obama-appointed U.S. Circuit Judge Patricia Millett and Garland questioned the Justice Department’s invocation of national security to keep the declaration locked away.

Garland asked whether the government not classifying the sought-after records was an acknowledgment that there is no possible harm to national security.

The Clinton appointee also shot down the Justice Department’s argument that federal law allows for the government to provide closed-door explanations to the court about the need to keep certain records out of the public’s hands.  

“It provides for it but it doesn’t say anything about it permanently staying that way,” Garland said. 

While Comey’s memos went public more than two years ago, CNN has continued to fight for the Archey declaration. The outlet warned the appeals court on Tuesday that a ruling for the Trump administration at this stage in the litigation would drastically restrict the reach of the courts in granting access to documents that the executive branch decides relate to “intelligence sources or methods.” 

“When it comes to issues of national security, the solution is not for the court to stop asking questions,” CNN attorney Charles Tobin argued. “The court always should be asking questions under the common law.”

Justice Department attorney Thomas Pulham meanwhile leaned on Supreme Court precedent, arguing that the National Security Act categorically protects even nonclassified information on intelligence sources under CIA v. Sims.

“It said that even the risk that a court could order the disclosure of information relating to a source could deter sources from coming forward and providing information to the government,” Pulham said. 

Posing a handful of questions in his first round of arguments on the court, Walker voiced concern that CNN was overly aggressive.

“My worry is if they had been more specific, through an ex parte, in cameradeclaration that provided more specifics, you’d be asking for that now,” the judge said. 

Tobin conceded that he couldn’t say CNN would not have embarked on the path Walker laid out. 

“Your honor, I can’t say that we wouldn’t,” the attorney said, adding: “I think it’s something that the court has to take argument, by argument, by argument.”

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