Miami judge in Trump dossier case wants documents made public

Christopher Steele is the author of the Steele dossier, actually a series or uncorroborated opposition-research memoes.
Christopher Steele is the author of the Steele dossier, actually a series or uncorroborated opposition-research memoes.

A South Florida judge overseeing a Cyprus-based entrepreneur’s lawsuit against online news site BuzzFeed for the so-called Trump dossier has set an early December date for both sides to justify why scores of documents should remain secret and withheld from the public.

“The notices filed by the parties to date are woefully inadequate, citing only the existence of a blanket protective order, and do not establish good cause,” U.S. District Judge Ursula Ungaro wrote in a four-page order on Monday.

The judge set Dec. 5 as the date by which the parties should jointly file — under seal — a list of every sealed document, testimony or other information filed in the case. They must say whether they oppose unsealing it, and, in a rebuke to their prolific wordiness, ordered the lawyers, per document, to say why in four sentences or less. The judge underlined the word “short.”

“In an effort to properly execute its duty, the Court intends to promptly audit the sealed filings,” Judge Ungaro wrote.

Jennifer Nelson, attorney for the non-profit Reporters Committee for Freedom of the Press, which is closely watching the suit against BuzzFeed, said it was “a step in the right direction” for Judge Ungaro to demand greater transparency.

“The judge recognizes it is the judge’s role to serve as a gatekeeper here, and to hold the parties to justifying why material should be filed under seal,” Nelson said.

The case involves a defamation lawsuit brought by Aleksej Gubarev, whose Cyprus-based company XBT was identified in the dossier compiled by former British spy Christopher Steele, a Russia expert, that was published in full by BuzzFeed days before Donald J. Trump was sworn in as president in 2017.

The dossier was actually a compilation of uncorroborated opposition research memos, paid for first by persons seeking to thwart Trump’s advance through the GOP primaries and later by a supporter of Democratic rival Hillary Clinton. The document has become the subject of closed-door congressional investigations and is believed to be part of Special Counsel Robert Mueller III’s ongoing probe of possible collusion between Russia and members of the Trump campaign.

XBT and Gubarev, an ethnic Russian with multiple citizenship, were identified on the final page of the 35-page document. It alleged XBT was used as a platform to spread automated computer actions and viruses that contributed to the hack of the Democratic National Committee and subsequent release of private emails. They proved embarrassing enough to trigger the resignation of then-DNC Chairwoman Debbie Wasserman Shultz, the South Florida congresswoman.

Hours after the dossier’s publication, Gubarev vehemently denied to McClatchy any involvement in the hack and expressed surprise. Soon afterward, he brought suit against BuzzFeed, complaining he didn’t get a chance to respond and that his business interests were harmed.

But bringing a lawsuit to trial is risky for Gubarev because it invites a public airing of XBT’s finances, customers and corporate history. For example, a Sept. 21 investigative story by McClatchy and the Miami Herald found companies owned and operated by XBT were either used by or affiliated with companies connected to the spread of two notorious computer viruses — the Gozi virus and the Methbot virus. If the case goes to trial, this is likely to be explored in depth.

Similarly, a November 2017 story by McClatchy spotlighted how anti-piracy groups had, through litigation and regulatory filings, complained about XBT and its affiliate Webzilla. This publicly available article is completely blacked out in public court documents, effectively making it under seal.

The New York Times in October filed a public-interest motion in the case requesting that documents be unsealed. XBT’s lawyers objected on Nov. 1.

“Court proceedings are public proceedings, and the public is entitled to see how the cases are progressing and why they turn out the way they turn out,” said Jonathan Manes, director of the Civil Liberties and Transparency Clinic at the University at Buffalo School of Law and a former lawyer for journalism organizations. “If we can’t read the papers the judge is reading, we don’t know what’s going on.”

There have been at least 48 sealed entries on the court docket just since Sept. 25, and scores of sealed and/or redacted documents since the pre-trial jockeying began in early 2017.

The order from Judge Ungaro, who hears cases in Miami for the U.S. District Court for the Southern District of Florida, stipulated that both sides state whether the sealed “document, testimony, or information has ever been in the public domain, without regard to whether the document, testimony, or information currently is publicly available.”

An earlier version of this story incorrectly identified the Herald article that was redacted in the court files. This has been corrected.

Kevin G. Hall: 202-383-6038, @KevinGHall