Updated at 4:31 p.m.
The U.S. Court of Appeals for the D.C. Circuit today unsealed a ruling in a dispute that features a prominent Washington businessman who’s caught up in an investigation of corruption in the 2010 mayoral campaign.
Jeffrey Thompson, who has not been charged with a crime, is one of several individuals under scrutiny for possible campaign finance violations during Mayor Vincent Gray's 2010 mayoral run; Gray (D) has not been charged with a crime. Thompson is being investigated in connection with an unlawful $650,000 "shadow campaign" that supported Gray.
Thompson appealed a trial judge's order rejecting his challenge to the government's plan to review evidence seized last year from his home and office. The redacted opinion didn't offer new information about the case or the status of the grand jury investigation. But the decision did include a few hints as to Thompson's legal defense strategies, at least in the minds of the judges. (The opinion doesn’t mention Thompson by name, but he was identified as the subject of the proceedings in trial court documents.)
The appeals court initially issued its decision in March under seal. The Reporters Committee for Freedom of the Press, on behalf of ALM Media Properties LLC (the Legal Times' parent company) and The Washington Post, urged the court to release the full opinion or a redacted version.
Thompson's lawyer, Williams & Connolly partner Brendan Sullivan Jr., declined to comment.
FBI agents executed search warrants against Thompson in March 2012. They seized more than 60 boxes of evidence, as well as computers, cell phones and other electronic devices. According to court filings, agents collected more than 23 million pages of documents.
Thompson challenged the use of a government "filter" team to review evidence for privileged information and asked for the return of evidence that fell outside the scope of the search warrants. U.S. District Chief Judge Royce Lamberth denied the motions.
According to the D.C. Circuit opinion, Thompson and the government reached an agreement in January on how to identify privileged information – it didn't offer details on the agreement – so the appeal was limited to Thompson's motions for the return of evidence.
The three-judge panel found Thompson's motions ran counter to case law barring appeals in the middle of a case. Under precedent governing motions to return evidence, Judge Thomas Griffith wrote, Thompson could only appeal the denial of his motions if they was part of an independent proceeding and satisfied two prongs: first, that the motions were "solely" for the return of property and, second, that they weren't tied to an ongoing criminal prosecution.
The court said Thompson's motions failed the first test because he wasn't only seeking the return of his property. They found he was trying to manage the review of evidence in a way that would aid his legal strategies in the grand jury investigation and during a future trial.
The opinion revealed Thompson had concerns about information stored electronically. According to the court, his lawyers wanted a waiver of the "plain view doctrine," meaning the government couldn't use information outside the scope of the warrant at trial even if it was in plain view during the search of an electronic device. "That would be a benefit to [redacted] at trial, and it has nothing to do with the return of property," Griffith wrote.
Thompson also asked that law enforcement not be allowed to review much, if not all, of the evidence for a period of time so he and an independent third-party could screen it first. The D.C. Circuit panel found that such a delay "could shape the course of the criminal investigation and the content of the case the government will present at trial."
The motions, the court found, "are an integral part of [redacted] strategy before the grand jury and at a possible trial."
Chief Judge Merrick Garland and Judge Brett Kavanaugh also heard the case, which was argued in September.