I will include weasel words going the other way: it’s *possible* that Higazy agreed to the sealing. It just seems inconsistent with his previous position.

Leaving aside, for the moment, everything else you wrote, I wonder if this might change your mind: The only information from the redacted portion of the Second Circuit opinion that is NOT found in the unsealed materials from the criminal case is the specific details about Higazy’s family.

To give you an idea of what I’m talking about, go to page 8 of the unredacted opinion and look at the block quotes immediately after “Higazy explained why he feared for his family ….” It’s my contention that this was the material that was sealed, and it’s absence from the documents in criminal case indicates why Higazy would ask for everything to be unsealed there, but still seek a protective order in the civil case (or at least not object to one if the government made the initial request).

FWIW, I have an e-mail in to Higazy’s attorney about this. We’ll see if he responds. I’ll report any response, even if it puts egg on my face.

I look forward to any revelations you come up with.

FWIW, I have an e-mail in to Higazy’s attorney about this. We’ll see if he responds. I’ll report any response, even if it puts egg on my face.

Bluster? What exactly have I written that’s bluster? In case you’re unsure of the definition, your claim that bluster is all I’m offering, and your failure to address any substantive argument is “bluster.” Almost text book actually.

See, that’s bluster. Because it comes right before you acknowledge that, while I supposedly failed to address any of your substantive arguments, I actually pointed out clear error in your post, which goes to the very heart of your argument.

Good. Now that you have acknowledged that, people can clearly see that I don’t have to be calling the Clerk of the Second Circuit a liar to conclude that the government requested the sealing of the material for the ulterior motive of protecting the government from embarrassment.

By the way, you might want to correct your post, which continues to say that the anonymous source and the Second Circuit Clerk claimed Higazy requested the redactions. Again, as I said, that is your assumption.

Which is it?

It is both.

My comments to the effect that the material was sealed to protect the government from embarrassment referred to the ulterior motive I suspected on the part of the government. Of course the party requesting the material to be sealed didn’t cite “potential government embarrassment” as the *ostensible* justification — a fact I thought so obvious it wasn’t even worth mentioning explicitly. Any rational reader — at least one reading my post fairly, as opposed to reading it looking for cheap “gotchas” — would easily be able to tell I was talking about the actual (ulterior) reason the material was requested to be sealed, as distinguished from the (ostensible) reason given to the court.

You are straining to find contradictions where none exist.

Nor do I think it obvious that the court would reject a government request to seal the material even if Higazy objected. The court might well conclude that it would be safer for Higazy’s family to seal the material as the government requested.

You have a good point in noting that Dunn’s letter to Judge Rakoff related to the proceeding in which Higazy was held as a material witness, and not the civil suit. But instead of sticking with your one good point, you have made incorrect assumptions and statements about the matter, even as you attack me. Also, you have failed to explain why Higazy would seek full disclosure in the former matter and acquiesce in (or even request) material to be sealed in the civil matter.

His lawyer said as to the earlier matter: “It is both my and Mr. Higazy’s position, that the entire matter should be unsealed.” It is nothing short of bizarre to suggest that this statement is irrelevant to who requested the sealing of material in the civil matter. Why would Higazy and his lawyer have suddenly changed their view of unsealing everything?

I’m kind of losing patience here.

It looks more like you’re losing the argument. But at least you’ll always have your arrogance.

The modus operandi seems to be to a lot of bluster, while papering over the fact that you have misstated things.

Bluster? What exactly have I written that’s bluster? In case you’re unsure of the definition, your claim that bluster is all I’m offering, and your failure to address any substantive argument is “bluster.” Almost text book actually.

I.e. the modus operandi of the typical civil lawyer.

ooh. that hurts …

Let’s keep it simple, my friend. You said, and I quote:

The only evidence regarding whom requested a seal in Higazy v. Templeton comes from an unnamed inside source and the named Clerk of Court, who both claim that Higazy requested the redactions “to protect Higazy and his family.”

See if you can set aside the bluster and answer a very, very simple question.

Did the unnamed source or the named Clerk of the Court actually “claim that Higazy requested the redactions” as you said?

Nope. That was my mistake. Of course, my comments above made clear that who requested the seal in the first place was (a) irrelevant, and (b) highly unlikely to have been the government. But for the sake of argument, let’s just say that the government requested the seal for the safety of Higazy’s family.

Now it’s your turn:

My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment.

Can you acknowledge for the record that your judgment is wrong? And if you can’t, then can you acknowledge that you are calling Wolfe a liar:

Wolfe said the redacted information was originally sealed for the safety of Higazy and his family.

Which is it?

I.e. the modus operandi of the typical civil lawyer.

Let’s keep it simple, my friend. You said, and I quote:

The only evidence regarding whom requested a seal in Higazy v. Templeton comes from an unnamed inside source and the named Clerk of Court, who both claim that Higazy requested the redactions “to protect Higazy and his family.”

See if you can set aside the bluster and answer a very, very simple question.

Did the unnamed source or the named Clerk of the Court actually “claim that Higazy requested the redactions” as you said?

Let’s first see your acknowledgement that, in fact, they didn’t claim that. Then we can move on from there.

Therefore, any theory depending on the assumption that the government was trying to cover up embarrassing information holds no water.

QED

I won’t say I am convinced of that, but I will say it seems to me we cannot assume otherwise at this point. To go back to what you said in the post, at this point any other conclusion is speculation. it may be correct, but we have no basis for believing so other than a suspicion of the government. I am certainly not above that, but it doesn’t seem to be anything more for now. That said, Patterico can keep digging, I would certainly be curious to know definitively.

1) The government requests the material to be filed under seal. It cites protection of the plaintiff. The District Court agrees and does the sealing.

There’s your first major flaw. The court doesn’t just seal anything. There is a process and a bar to meet. Check the Federal Rules of Civil Procedure, Rule 26(c) for example.

The point is that the government wouldn’t have been granted a seal just because some information was potentially embarrassing. If indeed it was the DOJ who requested the seal, the safety of Higazy’s family would have been an appropriate reason to grant the request, and even then Higazy could have objected. It’s difficult to believe that the court would have granted the request if Higazy didn’t want it. Moreover, the seal would have been limited to only that information that may put Higazy’s family in jeopardy — specific details about who they are.

“Then why was all the information about the interview (and alleged coercion) redacted” I hear you ask. Well, the court did that under its own volition, most likely to mask what information was actually being protected. IOW, by redacting nearly the whole paragraph, the opinion still makes sense, yet what bits of info were supposed to be sealed remains a mystery. If the court had done it right in the first place, the redaction would have been much, much smaller, and the allegations against Templeton would have been left in plain view.

Next, regarding your assertion above that “The government requests the material to be filed under seal. It cites protection of the plaintiff.” Here’s what you said in your initial post on Higazy:

My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment.

Now you are backing off that claim and admitting that the government (under your theory) requested the protective order in order to keep certain information about Higazy’s family out of public view in the interest of their safety. Recall that you summarily rejected that claim from the outset:

An anonymous source, who I’m guessing is a government official, told the New York Sun that the omitted material might put people’s safety at risk … Interesting. That makes Howard sound pretty irresponsible — if you believe it. But here’s the thing: you don’t have to take the source’s word for it.

However, you are now saying:

I don’t have to call the clerk of the Second Circuit a liar. I just have to carefully read what she actually said.

But, since Wolfe is saying exactly the same thing as the “anonymous source” (who may have in fact been Wolfe in the first place), you are (or were) saying that Wolfe is not to be believed.

So this is where we stand now.

Things we agree on:

(1) Information was sealed to protect Higazy’s family.

(2) The Clerk of Court and an anonymous source (who may be one and the same) report that the seal was put in place for their protection.

(3) The redactions were done, not at the behest of the DOJ or FBI, but instead sua sponte by the Court which realized its mistake too late.

Things we disagree on:

(1) Who requested the seal.

Accordingly, your original claim cannot stand as stated:

My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment.

In order for you to believe this then:

(A) Wolfe and anonymous source lied, or

(B) The Court was duped by the DOJ, and Higazy never objected to the seal.

No evidence other than the redacted material has been offered in support of such a theory.

Regardless of who requested the seal — and at this point is should be obvious that, in the very least, Higazy agreed to the seal — the purpose was to protect Higazy’s family. Therefore, any theory depending on the assumption that the government was trying to cover up embarrassing information holds no water.

QED

Here’s how I think it happened.

1) The government requests the material to be filed under seal. It cites protection of the plaintiff. The District Court agrees and does the sealing.

2) The case is appealed.

3) The Second Circuit issues a decision that contains material filed under seal.

4) Someone at the Second Circuit notices that the decision contains material that is sealed. The Court, on its own initiative, withdraws the opinion. This does not happen at the request of the Justice Department or FBI. It is the court itself that notices the inclusion of the sealed material and withdraws the opinion.

5) The opinion is reissued without the sealed material.

6) Catherine O’Hagan Wolfe, clerk for the appellate court, says the original Higazy ruling was withdrawn to remove information that should have been sealed. She says that the court made the decision and that it was not done at the request of the Justice Department or the FBI. Her statement is correct — but it refers only to the withdrawal of the appellate opinion, not to the reasons the material was sealed in the District Court.

7) You misinterpret her statements as referring to the original District Court decision to seal the material, when in fact her comments refer to the Second Circuit’s decision to withdraw the opinion.

I don’t have to call the clerk of the Second Circuit a liar. I just have to carefully read what she actually said.

Catherine O’Hagan Wolfe, clerk for the appellate court, said the original Higazy ruling was withdrawn to remove information that should have been sealed. She said that the court made the decision and that it was not done at the request of the Justice Department or the FBI.

What more do you want, Patrick?

No, they didn’t say that. The bolded language is your assumption — one which I believe is unwarranted. Just because the safety of Higazy’s family was the proffered reason for the sealing, that doesn’t mean Higazy requested it.

The proffered reason? So then is Wolfe lying? What’s your theory now?

My “assumption” is based on the only evidence out there about what information was sealed. Even if my assumption is wrong, which seems pretty unlikely, it still makes your assumption complete hogwash.

The letter from Higazy’s attorney, far from being irrelevant (as you claim), indicates a desire to make all information on the case public. Why would that be different in the civil context than it was in the criminal context?

Because the criminal case was under seal for reasons not relevant to a civil case (i.e. the Grand Jury proceedings that are required to be secret by law). Higazy’s lawyer wanted the documents unsealed so he could mount his civil case. What’s the mystery here?

You’re trying so hard to make this redaction thing something that just isn’t, or at least, that you have absolutely zero credible evidence of it being. The court screwed up in releasing the info, which was likely sealed at the request of Higazy since it contained specific information about his family in Egypt. End of story.

I have a hard time believing that the court would OK a seal of that information at the request of the government, especially if Higazy challenged it. It’s his family for cripe’s sake. In order for your assumptions to be correct, the Second Circuit Judge, the Clerk of Court (an appointed position remember), the DOJ, the FBI, Higazy and his lawyer (neither of whom have said word one about this) would all have to be in cahoots. Does that make even a modicum of sense?

I’ll save you the trouble. No, it doesn’t.

The only evidence regarding whom requested a seal in Higazy v. Templeton comes from an unnamed inside source and the named Clerk of Court, who both claim that Higazy requested the redactions “to protect Higazy and his family.”

No, they didn’t say that. The bolded language is your assumption — one which I believe is unwarranted. Just because the safety of Higazy’s family was the proffered reason for the sealing, that doesn’t mean Higazy requested it.

I suspect the government requested the sealing, and offered the safety of Higazy’s family as its ostensible justification for the request (though the government may have had an ulterior motive).

The letter from Higazy’s attorney, far from being irrelevant (as you claim), indicates a desire to make all information on the case public. Why would that be different in the civil context than it was in the criminal context?