Over the past couple of years, there has been a fair amount of controversy about the role played by Trump Administration official Mick Mulvaney in a land deal gone bad and his efforts to manipulate the law to protect himself from losses while dumping the losses on his investors. The controversy came up during his confirmation hearing in 2017 and has continued as he has risen in responsibility within the Administration. One Mulvaney company foreclosed on a loan made to a different Mulvaney company, and the investor who was frozen out counterclaimed. Three deposition transcripts, including the deposition of Mulvaney himself, were presented to the South Carolina trial court in connection with summary judgment motions, but after the Mulvaney interests prevailed, all of the parties joined together in a motion to keep under seal both the summary judgment briefing and all of the evidence submitted with that briefing.
Georgetown law professor Adam Levitin, who had used the Mulvaney transaction in his classes on financial restructuring, noticed the sealing, which prevented him from writing a fully informed blog piece about the case. Moreover, Senator Jeff Merkley has been quoted as expressing concern that Mulvaney was less than fully candid in his answers to questions during the confirmation process, and the South Carolina trial court ruled that the candor of his answers would be a proper subject for questioning during Mulvaney’s deposition. Public Citizen and no doubt many others would like to explore whether his deposition answers fully addressed those concerns.
Many thanks to Jay Bender, a top South Carolina media lawyer with Baker, Ravenel and Bender, for co-counseling on these motions.
Therefore, Levitin and Public Citizen have now sought leave to intervene for the purpose of seeking the unsealing of the briefs and evidence in the case. Levitin's affidavit explains why unsealing matters from a scholarly perspective. Our motions in such cases have commonly invoked both the common law and the First Amendment as a basis for unsealing, but here we were able to invoke the South Carolina constitution as well, because the South Carolina Supreme Court has held that the Open Courts provision (Section 9 of the state's Declaration of Rights) provides an additional source of authority requiring disclosure of court records.
One little oddity in this case. The litigation here was fought among companies; strictly speaking, the sealing motion was filed by companies. But when I wrote to the companies' counsel to ask about the justifications for sealing, the lawyer who got back to me was very candid about what was at stake: he told me that he "represent[ed] Mr. Mulvaney." So I feel comfortable about piercing the corporate veil and attributing the secrecy to Mulvaney personally. It remains to be seen whether Mulvaney is able to present evidence supporting the need for sealing of any part of records.
UPDATE:
In an order styled "sua sponte," and taking no explicit note of our motions to intervene and unseal, the judge revoked his sealing order. The entire set of files is now up on the court's electronic docket, although due to an apparent scanning error, every other four pages of the deposition transcripts are missing.
