Santos’ Secret Sureties

Whether it’s Sam Bankman-Fried or George Santos, law is often crafted in the wake of people we despise, or at least for whom we hold little sympathy. Magistrate Judge Anne Shields (EDNY) ordered that the names of the sureties for Santos’ release be made public. The order has been sealed in order to allow Santos an opportunity to appeal the decision to the district court.

ORDER: For the reasons contained in the attached Order, the motions to unseal the identities of the Suretors who signed the Bond for Defendant’s pretrial release, filed herein at Docket Entries 13 and 14, are granted. To allow Defendant to appeal this ruling to the District Court, the Clerk of the Court is directed to maintain the attached decision and all previously sealed documents, including the Bond, under seal. Any appeal of this Order must be filed by noon on Friday, June 9, 2023. So Ordered by Magistrate Judge Anne Y. Shields on 6/6/2023.

If this had been some run-of-the-mill federal defendant, no one would ask or care who the sureties were, but Santos is big news and salacious readers want to know who would be so awful as to put their financial well-being at risk for this lying mutt. But that’s not the argument made by the media seeking disclosure of the sureties’ identities. While including the generic “public’s right to know” argument, and trivializing the interests of the sureties in not being publicly reviled, or worse, for their involvement with or connection to Santos, the New York Times offered some substantive arguments as well.

The public interest in openness is particularly strong in this case. The surety records relate to three individuals who have committed large sums of money to ensure that Rep. Santos can remain at liberty, pending further proceedings. This presents an obvious opportunity for political influence, given Rep. Santos’s elected position and his dependence on these suretors. {If the suretors are not family members, the surety also may be contrary to Congressional ethics rules. See generally House Ethics Manual (2008).} That risk is further heightened by the fact that the very crimes Rep. Santos has been charged with involve abusing the political process for personal gain.

The public also has an interest in ensuring that Rep. Santos duly appears in court and, thus, an interest in exercising democratic oversight of the effectiveness of the bond. For the bond to be effective, first, the suretors must be individuals with sufficient influence or connection to Rep. Santos that forfeiture of their security would deter him from flight. Second, the amount of the forfeiture must be sufficient that the impact on the suretor would similarly deter flight. And, at the same time, the suretors would need to be free from circumstances that would undermine bail’s intended purpose. For example, a suretor who owed sums of money to Rep. Santos potentially would not be appropriate.

The second argument, that the public has “an interest in exercising democratic oversight of the effectiveness of the bond,” There is no such thing, nor should there be. Not only are the discretionary decisions of the judiciary not subject to “democratic oversight,” but the judicial branch is structured to be insulated from the whims of the public.

That the Times’ lawyers proffered such a nonsensical argument suggests they were grasping at straws, throwing whatever they could dream up against the wall to see what would stick. When a party has a strong argument, it’s tactically dubious to dilute it with an argument that’s facially frivolous.

But the first paragraph above makes a far more rational argument, that signing the bond as a financially responsible person for Santos’ release “presents an obvious opportunity for political influence.” If the surety is a person who has a natural affinity for Santos, a family member or close family friend, then this argument would carry little weight. If, on the other hand, it was someone who could seek benefit from Santos’ position in Congress, then it would indeed raise a serious issue of improper political influence.

However, the resolution of this issue, as well as any House Ethics question, could be determined, at least in the first instance, by the court’s review of the sureties’ relationship in camera, and only after a determination is made that there is any potential merit to the argument would the equities then tip in favor of public disclosure.

That said, there is a very real question whether this argument, even though unfrivolous, is sincere, or merely a subterfuge to obtain the names to splash them across the paper and subject the sureties to personal ridicule, condemnation and its consequences and perhaps even physical damage of property or personal harm. It cannot go unnoticed that it has become commonplace for people to engage in attacks against those who support or are connected to loathsome people. It cannot go unnoticed that Santos is roundly despised.

But the bigger issues isn’t whether the sureties for George Santos are at risk, but whether sureties for people the public despises going forward will have a legitimate fear that their names will appear in the pages of the New York Times, to be hated, attacked or otherwise suffer for having chosen to help someone the public hates.

Last time, it was Sam Bankman-Fried. This time, it’s George Santos. Next time, it will be another defendant whom some portion of the public hates. If that’s likely to happen, who would ever be willing to sign on as a surety? It was hard enough before, even when no one cared about their identity, to get people to serve as FRPs so that the FBI or DEA would scrutinize their finances and perhaps deem them complicit because they agreed to stand up for a defendant. Given that the newspapers want to put their identities on blast, the willingness of any rational person to be surety will go from slim to none.

7 thoughts on “Santos’ Secret Sureties

  1. Mike V.

    “Last time, it was Sam Bankman-Fried. This time, it’s George Santos. Next time, it will be another defendant whom some portion of the public hates. If that’s likely to happen, who would ever be willing to sign on as a surety?”

    And that, I’d bet, is the goal in their heart of hearts. Those they disapprove of have no right to breathe free air.

    1. Paleo

      And of course the NYT has been an advocate for bail reform so that more people don’t rot in jail waiting for their trial. But as with all folks dominated by politically hypocrisy the Times thinks that this good idea should apply only to people they have sympathy for or for people who engage in rightthink. Everyone else can just suck it up.

  2. Keith

    But the first paragraph above makes a far more rational argument, that signing the bond as a financially responsible person for Santos’ release “presents an obvious opportunity for political influence.”

    Sure, and we have public disclosure rules and ethics rules relating to donations to candidates and elected officials that could be applicable. But as this was a donation to him, but rather a benefit he realizes from a tangential use of money, that’s a stretch.

    But even assuming it’s legit – wouldn’t a simpler answer be to release the names, upon request, solely to an established governmental oversight committee?

    Does the public ordinarily get to have oversight of judicial sureties? Does the public ordinarily get to have oversight of election finance rules?

    Should the public get to upend bail procedures because the NYTs want to scream yes to those questions?

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