We reported on a bizarre subpoena issued by the U.S. Justice Department to the Eagle Forum of Alabama on Sept. 20. In spite of the strong opposition from literally dozens of conservative organizations to the Eagle Forum’s motion for quashing (i.e. The subpoena was thrown out by the Justice Department lawyers despite the strong opposition from dozens of conservative organizations supporting the Eagle Forum’s motion to quash (i.e.
It gets even better. According to a transcript, federal Judge Liles C. Burke criticized the Justice Department’s “vastly broad and unduly burdensome subpoena” and stated that he would have issued an order to annul the subpoena had the Justice Department not withdrawn nearly all of it. Burke indicated that he was open to the possibility of imposing sanctions on the Justice Department.
This case is worth a quick review. After Alabama passed the Vulnerable Children Compassion and Protection Act, left-wing advocacy groups as well as the Biden Justice Dept sued. The law bans hormone therapy, puberty blockers, and surgery to alter the biological sexual sex of minors. They claim that the law is in violation of the Equal Protection Clause under the Fourteenth Amendment.
Eagle Forum is not named as a defendant in this lawsuit. It is a non-profit membership group with many volunteers — ordinary citizens — as well as two employees, one of whom is full-time, and one of which is half-time. Because they were concerned about this issue, its members did what every citizen is entitled to do under the First Amendment. They made speeches, organized meetings, and spoke out to their state legislators.
Because of their advocacy, the Justice Department issued a huge, expansive subpoena to the Eagle Forum and its volunteers requesting everything they had done or said over the past five years. This was clearly an attempt to intimidate, deter, and punish the Eagle Forum for exercising their First Amendment rights on a policy matter that the Biden administration disagreed with.
We have already pointed out that nothing the Justice Department demanded had any relevance to this lawsuit, since the Eagle Forum was not the legislature that passed the law. Judge Burke also echoed this point, asking “how in the hell could what the Department of Justice asks for possibly be relevant to this case and its outcomes?” Given that the issue is “whether this statute is constitutional?”
Jason Cheek, Justice Department lawyer, was asked by the judge why the department suddenly changed from asking for “everything we know of subpoena” to asking for “just really one thing”. Subpoena just prior to the hearing. The lawyer could only provide a few words of explanation about the “amicus papers” filed by many organizations and his complaint that the Eagle Forum had not previously met with the department to discuss narrowing the scope of the subpoena. After so many organizations filed briefs against his subpoena, he complained repeatedly that “this thing had grown some legs”.
The Justice Department decided to withdraw the disgraceful subpoena because of the strong opposition from multiple organizations. This opposition resulted in additional costs and time for the Justice Department, as well as the Eagle Forum and the many organizations that contributed amicus briefs to the Forum’s defense.
John Graham, the Eagle Forum’s lawyer, stated that the federal court rule regarding allowable discovery in court cases “does not impose such an obligation” on the target to attempt to negotiate a deal with the Justice Department. Graham correctly stated that the rule requires those “serving subpoenas — the federal government here — to take reasonable measures to avoid imposing undue cost and burden on the recipient” and also authorizes sanctions against a party and attorney who fail to comply with the rules.
The Justice Department lawyers did not adhere to their professional and ethical duty to ensure they don’t engage in abusive discovery that is unreasonable and burdensome. In fact, the judge pointed out that the new “narrowed subpoena” was not really narrowed, but it was asking for additional information that had not been requested originally by the Justice Department.
Judge Burken warned the department about the severe consequences of its bad behavior:
Administrations are subject to change approximately every four years or eight. What is the new standard? They will send subpoenas in legislation to all advocacy organizations. They want emails to their members, social media posts, and other things that were not discussed in the advocacy. Is this where the Department of Justice believes we should go in this country? This will, I can assure you, be directed at the Southern Poverty Law Center and the ACLU. Are we there yet?
Subpoenas such as this one are clearly designed to harass conservative policy-makers in order to silence them, prevent their active participation in democratic legislative processes, and discourage citizens from deliberating about joining organizations like the Eagle Forum.
This abusive discovery is a violation of the First Amendment rights to membership organizations to free speech, to associate with other believers, and to speak to elected officials and other government officials regarding public policy issues that are important to them.
This is lawfare at its worst.