Maynooth University
Department of Law Roinn Dlí Ollscoil Mhá Nuad
Seth Barrett Tillman, Associate
Professor
Maynooth University School of Law and
Criminology
Scoil an Dlí agus na Coireolaíochta
Ollscoil Mhá Nuad
New House—#53
County Kildare W23 F2H6
Ireland
November 10, 2026
Dianne T. Renwick, Presiding Justice of the First Department
New York State Supreme Court
Appellate Division, First Department
27 Madison Avenue
New York, NY 10010
United States of America
RE:
The First Department’s Practice of Sealing Briefs in Criminal Appeals
Dear Presiding Justice Renwick:
I am a U.S.
national who lives and teaches law abroad (in Ireland). I recently filed an
amicus brief in a case before the First Department. See Brief of Professor Seth Barrett Tillman and Landmark
Legal Foundation as Amici Curiae in Support of Defendant-Appellant
Donald J. Trump, People of the State of New York v. President Donald J. Trump,
App. No. 2025-00648 (N.Y. App. Div. 1st Dep’t, brief filed: Oct. 29, 2025),
Doc. No. 72. As of a few weeks ago, the Appellant (President Trump) had filed
an opening brief, afterwards four amicus briefs were filed (including one by
the United States Department of Justice), and, subsequently, an opposition
brief was filed by Manhattan District Attorney Bragg’s office. All those briefs
were newsworthy, as is the case itself. All those briefs were posted on
Westlaw. Then, suddenly, some weeks before the oral argument, the opening brief
and the four amicus briefs were removed from Westlaw. I inquired from Westlaw,
and I was told that the briefs were removed from Westlaw’s public database at
the direction of the First Department’s Clerk’s Office. I thereafter made
inquiries at the Clerk’s Office. I was informed that it is the regular policy
of the First Department (and, perhaps, other departments of the Appellate Division)
to put briefs under seal in criminal (but not civil) matters. Furthermore, I
have been told that the policy here is that the briefs in criminal matters will
remain under seal even after a final judgment is issued by the First
Department.
I bring the Clerk’s Office’s policy to your attention.
This policy is entirely inconsistent with the practice of other state appellate
courts and all federal courts (e.g., the U.S. Supreme Court), and it is also
inconsistent with the practice of courts of record abroad (e.g., the High Court
of Australia). Obviously, there are limited exceptions for matters involving
certain sexual offenses, cases involving minors, and national security cases.
But I see no reason justifying a blanket policy across all criminal
appeals—particularly, where, as here, the case is one of public interest, and where,
as here, the appeal involves primarily matters of law, as opposed to
confidential facts (e.g., Social Security Numbers). Even if a brief strayed
into noting some confidential fact, the widespread U.S. practice is for the
party seeking confidentiality to supply a redacted version of its brief for
public access, thereby, leaving the court with access to the confidential
information in the nonredacted brief. My own First Department amicus brief
involves no such confidential facts—in its entirety, it discusses pure matters
of law. Why should it be sealed?
I have also been told that the media and other third
parties will be denied copies of such briefs if they specifically request such
access in person at the premises of the First Department and the Clerk’s Office.
The U.S. Supreme Court has recognized a constitutional and common law right to
inspect judicial documents. See U.S. Const. amend. I; Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978). Moreover, the First Department
case, about which I am writing you, is a matter of public interest to the
people of New York and to the entire nation, and the specific issues being
litigated (as far as I know) are entirely ones of public record.
If your Court were adjudicating criminal trial
court proceedings before a jury, then I would understand limiting access
to briefs until the jury was released. At least in some circumstances, jury
bias, in connection to access to briefs, can be a legitimate concern. But yours
is an appellate court operating without a jury. Limiting access to
briefs in order to preclude jury bias is no explanation for the Clerk’s
Office’s policy. And continuing to limit access after the First Department
should reach a final judgment is even more difficult to understand.
Additionally, the
Clerk’s Office’s policy of restricting access to briefs is not an effective
seal. Each of the briefs which the Clerk’s Office has refused to grant public
access is otherwise available directly from the parties (should a party choose
to distribute its brief) and otherwise available on the internet. For example,
the United States Department of Justice’s amicus brief[1]
was posted online by a news,
business, and legal publisher here: [76-motion-for-leave-to-file-amicus-brief.pdf].
One could hardly blame the publisher for posting this brief—as the electronic document
is not marked “Under Seal” by the NYSCEF system, within the document’s header,
or otherwise splashed across the brief’s pages. In other words, the “seal” here
only keeps the public from having easy access from the Court and Clerk’s Office,
but the seal does not otherwise keep the document under wraps. Why have a seal
when it is ineffective?
Finally, let me reiterate, on or about
October 16, 2026, Westlaw (apparently, operating under instructions from the First
Department’s Clerk’s Office) actively removed from its database President Trump’s
brief (his opening brief), and, at the same time, Westlaw also actively removed
all four amicus briefs (all of which supported Trump). Westlaw removed these
briefs some weeks before the November 5, 2026 oral argument in this
case. During that time, Westlaw had posted District Attorney Bragg’s brief, but
it only removed Bragg’s brief after the oral argument—that is, the brief
was removed on or about November 9, 2026. So the policy to seal briefs, at
issue here, does not appear entirely evenly enforced. I am not alleging any
nefarious bias. But when a court or other government body removes documents
from public access, mistakes and inconsistent actions of this sort are bound to
happen. And the natural, expected, and predictable upshot will be a loss of
public confidence in the unbiased administration of public justice. I am sure
no one wants that.
Sincerely,
Seth Barrett
Tillman
cc: Susanna
Molina Rojas, Clerk of the First Department (by e-mail)
Attorney(s) for
President Trump (by e-mail)
Attorney(s) for
District Attorney Bragg (by e-mail)
Attorney(s)
for Amici (by e-mail)
Maynooth University Department of Law, Maynooth University,
Maynooth, Co. Kildare, Ireland Roinn Dlí Ollscoil Mhá Nuad, Ollscoil Mhá Nuad,
Maigh Nuad, Co. Chill Dara, Éire. T
+353 1 474 7265 E law@mu.ie
W www.maynoothuniversity.ie/law
[1] Brief for the United
States as Amicus Curiae in Support of Defendant Appellant, People of the
State of New York v. Donald J. Trump, App. No. 2025-00648 (N.Y. App. Div. 1st
Dep’t, brief filed: Nov. 7, 2025), Doc. No. 76. For a list of all the briefs
filed to date, consult the public docket. Otherwise, see Seth Barrett Tillman, People
of the State of New York v. Trump: Briefs and Other Filings (N.Y. App. Div. 1st
Dep’t), New Reform Club (Nov.
12, 2025, 4:08 AM) (updated), https://reformclub.blogspot.com/2025/11/people-of-state-of-new-york-v-trump.html.
-------------------------------------------------
E-mail from Westlaw/ThomsonReuters to Seth Barrett Tillman (October 19, 2026):
[start]
I wanted to update you on the briefs. Four of the five were removed from Westlaw because the court has indicated they are not released to the public.
The one brief that is available to the public can be accessed here: 2026 WL 2393795
We will also be adding the reply brief filed on 10/16/2026. The court has confirmed it is available to the public, and we will add it as soon as we receive the court-filed copy we requested.
Please let me know if you have any questions.
[end]
Tillman’s note: The brief at 2026 WL 2393795 was, subsequently, removed by Westlaw. And the promised reply was never (as far as I know) added to the Westlaw database. In any event, that brief is not available online at this juncture (November 15, 2026)
-------------------------------------------------
E-mail from the Clerk of the Court, First Department of the Appellate Division of the Supreme Court of New York to Seth Barrett Tillman (November 13, 2026):
[start]
Dear Professor Tillman,
This email is in response to your November 10, 2026 letter addressed to Presiding Justice Renwick, concerning the briefs in the People v Trump matter.
Please be advised that the record and briefs in this matter are sealed in the Appellate Division because there is an order issued by the trial court sealing the record. When the appellant filed the record in the Appellate Division, it was accompanied by a copy of the sealing order. As a matter of practice and procedure, if a sealing order is issued at the trial level, whether it is a civil or criminal matter, we will mark the matter sealed at the Appellate Division. The reason for this is simple – the briefs may refer to sealed documents. Should a party choose to distribute its brief, we have no control over that party’s decision.
With respect to your representation that the Clerk’s Office directed Westlaw to remove the briefs from its database, I asked the Clerk’s Office staff and was told that no such directive was given to Westlaw. However, any person who has inquired about the briefs and/or record has been informed that the matter is sealed.
Very truly yours,
[end]
-------------------------------------------------
Seth Barrett Tillman, ‘Public Access to Court Records,’ New Reform Club (Nov. 15, 2026, 5:32 AM), <https://reformclub.blogspot.com/2026/11/public-access-to-court-records.html>;
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