Judge Calls Out Prosecutors For Bogus Subpoena Gag Orders

from the it's-a-request,-not-a-demand dept

Tue, Jan 12th 2016 3:49pm — Tim Cushing

At long last, it appears some prosecutors will no longer be putting BS gag orders on their subpoenas. Eastern District of New York judge Raymond J. Dearie has expressed his displeasure with the language found on nearly all subpoenas issued by the Brooklyn, New York US Attorney's Office.

With the exception of National Security Letters, recipients of subpoenas are free to inform the targets of the documents as well as discuss them publicly. (The exception is financial institutions served in grand jury investigations related to fraud or drug trafficking.) But that doesn't stop prosecutors and investigators from adding misleading statements to their subpoenas. They can only ask recipients not to disclose anything. They can't demand it. That's called "prior restraint" -- something the government should be taking great care to avoid. But some still make it appear as though the recipient has no choice but to comply and shut up.

As was covered here earlier, Reason's website received a subpoena for information on its commenters. Included with the subpoena was a request that Reason not talk about it. Reason's attorneys understood it was only a request and went ahead and informed the commenters targeted by it. Most recipients won't do this because prosecutors either utilize deliberately vague wording (making it seem more like a demand than a request) or verbally suggest any disclosure could result in criminal charges for the recipient.

The latter tacic was deployed in the Reason case. When it informed the US Attorney's office that it would be making the subpoena public, AUSA Niketh Velamoor suggested the site was "coming close" to "interfering with a grand jury investigation."

Judge Dearie has gone after the US Attorney's Office in Brooklyn for basically doing the same thing. A subpoena related to a cocaine smuggling investigation issued to a law office contained the following words:

You are hereby directed not to disclose the existence of this subpoena, as it may impede an ongoing investigation.

No subtlety there. This is an order -- and an illegal one at that. The battle over that phrase resulted in the discovery of widespread abuse by the prosecutor's office.

The Gigliotti case suggests that this was not the first time that prosecutors in the Eastern District of New York made such a demand. “Policy was violated multiple times here,” Judge Raymond J. Dearie wrote last week in a ruling, “and it is apparent that such violations are not isolated to this case.”

The lawyers challenging the wording called it "blatantly improper." The judge called it a "violation." The office issuing the bogus wording called it something else: "inadvertent." (It agreed it was "improper," but refused to take responsibility for crafting the words it crafted.)

Prosecutors said they will fix this going forward, although they were vague enough on details that Dearie had more harsh words for them.

In a decision last week, Judge Dearie called the government’s response “disappointing” and “glib,” saying prosecutors did not outline the scope of the problem or how they would address it.

'“Now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies,” Judge Dearie wrote.

“The government proceeds at its peril.”

Most likely, the prosecutors will continue to issue verbiage that strongly suggests recipients keep their mouths shut. They're apparently going to put this wording on a separate piece of paper (rather than on the subpoena itself) from now on, as if that somehow changes the implicit severity of the misleading language.

While it is good to see the office called out for its bogus demands, little will change if it can regularly rely on the ignorance of subpoena recipients to maintain the secrecy it can't actually demand. The more foreboding the wording sounds, the more likely it is that these "requests" will be complied with. The most honest solution would be to remove the wording entirely, unless nondisclosure is stipulated by statute.

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Filed Under: brooklyn attorney's office, gag order, raymond dearie, subpoena

20 Comments

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Anonymous Coward, 12 Jan 2016 @ 4:18pm

I lack any useful knowledge of the law outside of what TD and Popehat tell me explicitly, so I'll go ahead and ask a potentially dumb question: can subpoenas be FOIA'd?
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Anonymous Coward, 12 Jan 2016 @ 4:36pm

Re:
Depends on the state, but:
If the case has been resolved, generally yes.
If there is still an ongoing investigation, possibly. No in some states.
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Lawrence D’Oliveiro, 12 Jan 2016 @ 4:38pm

Isn’t “Grand Jury Investigation” An Oxymoron?
Grand juries seem to be used as political tools, able to frame or drop charges as the prosecutors wish.

I can’t think of any country in the world, other than the US, which feels the need for them.
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Anonymous Coward, 12 Jan 2016 @ 4:46pm

Re:
5 U.S. Code Subchapter II - ADMINISTRATIVE PROCEDURE

5 U.S.C. § 551 - Definitions
For the purpose of this subchapter—

(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—
(A) …
(B) the courts of the United States;
(C) …
(D) …
…

5 U.S. Code § 552 - Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows: . . .
(Emphasis added.)
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Coyne Tibbets (profile), 12 Jan 2016 @ 5:50pm

How they will correct it
This is how they will correct the problem, by posting this in subpoenas from now on:

Warning: impeding an investigation by disclosure of the existence of this subpoena may result in a $250,000 fine, 20 years imprisonment, or both.

See? No "order" there.
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Anonymous Coward, 12 Jan 2016 @ 6:10pm

Re:
Cool, thanks both. And www.law.cornell.edu is now bookmarked.
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G Thompson (profile), 12 Jan 2016 @ 7:15pm

Re: Isn’t “Grand Jury Investigation” An Oxymoron?
Spain?

Oh wait... they stopped in early 1800's.
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Anonymous Coward, 12 Jan 2016 @ 8:00pm

This varies from office to office. Many law enforcement agencies have contacted my company (a web host) prior to issuing the subpoena and ask us if we will voluntarily withhold disclosure, or if we require a judge-signed nondisclosure order to accompany the subpoena. Most of the time, they sound perfectly willing to get the order if needed. Some are less than thrilled at the idea... but like I said, it varies by office.
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Anonymous Coward, 12 Jan 2016 @ 8:08pm

Isn't the term for that intimidation of witnesses? Something carries hefty jail time for those criminals that do such a thing
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Anonymous Coward, 12 Jan 2016 @ 8:10pm

Re: Re:
That rarely happens when the government views itself as above the laws and decides they don't have to follow the laws they imprison other people for not following.
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Anonymous Coward, 12 Jan 2016 @ 9:15pm

Re:
I wonder how many purse-snatchers, on the occasion of their first arrest, are released with instructions to be a bit more alert to curtailing the most egregious violations of the law that might occur while pursuing their cash-acquisition activities.
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Anonymous Coward, 12 Jan 2016 @ 9:15pm

So sad
When you can trust criminals more than prosecutors the failures of our legal system really start to stand out.
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That One Guy (profile), 12 Jan 2016 @ 9:54pm

No, no it doesn't
'“Now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies,” Judge Dearie wrote.

“The government proceeds at its peril.”

Tough sounding words, but ultimately empty. What's the judge going to do when they violate the rules again, give them an even sterner warning not to do it again in the future? Perhaps with the threat of a really harsh look and some finger wagging?

Until those sending out the gag orders face actual personal penalties for their actions, they have no reason to stop, and as a result won't.
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Anonymous Coward, 12 Jan 2016 @ 10:22pm

Re: No, no it doesn't
"Until those sending out the gag orders face actual personal penalties for their actions, they have no reason to stop, and as a result won't."

I think that was the hint that in the future they might. In this sort of situation, where they're on notice, they don't have qualified immunity anymore.
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Anonymous Coward, 13 Jan 2016 @ 8:15am

Re: No, no it doesn't
OK, since I already got comfy asking dumb questions in an earlier comment, here are some more open questions:

Can all other judges in the Eastern District o' NY just keep letting the bad subpoenas slide and ignore handing out the 'severe remedies' (or even pusillanimous remedies) that Dearie's threatened?

Do Dearie or other judges ever look at the subpoenas proactively, or only at the request of an attorney? IOW, does someone have to have a lawyer who's aware of both the wording violations and Dearie's displeasure with them before anything could possibly happen?

Long ago, reading about immunities given to people in the various parts of the legal system, I could swear I read that prosecutors can't be held personally criminally responsible for breaking the law in the course of any of their normal duties. I think the example was that even egregious lying during a trial was OK (case could be ruined, but no criminal charges brought against prosecutor), while tampering with evidence could land the prosecutor in jail since evidence related activities are part of a LEO's duties, not a prosecutor's. If so, what sort of penalties could Dearie hand out?
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Anonymous Coward, 13 Jan 2016 @ 9:21am

Re: Re: No, no it doesn't
… what sort of penalties could Dearie hand out?
• Findlaw: Criminal Contempt of Court

• 18 U.S.C. § 401 - Power of court
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

• FRCrimP Rule 42 Criminal Contempt
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Anonymous Coward, 13 Jan 2016 @ 11:13am

Re: Re: Re: No, no it doesn't
I was definitely wandering down the wrong path doing it on my own... lucky for me I enjoy playing the doofus half of a Socratic dialog. I'm starting to think I shouldn't be approaching the law the same way as mathematics.

Now I get to go read Kalina v. Fletcher.
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Anonymous Coward, 13 Jan 2016 @ 3:29pm

Re: Re: Re: Re: No, no it doesn't
• Article I, Section 2
The House of Representatives . . . shall have the sole power of impeachment.
• Article I, Section 3
The Senate shall have the sole power to try all impeachments. . . .

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
(Emphasis added.)

United States v Nixon (1974)
The issue whether a President can be cited for contempt could itself engender protracted litigation.
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Anonymous Coward, 13 Jan 2016 @ 3:50pm

Re: Re: Re: Re: Re: No, no it doesn't
(
The issue whether a President can be cited for contempt could itself engender protracted litigation.
Jones v Clinton (E.D.Ark. 1999)
This lawsuit involved private actions allegedly taken by the President before his term of office began, and the contumacious conduct on the part of the President was undertaken in his role as a litigant in a civil case and did not relate to his duties as President.
)
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Anonymous Coward, 13 Jan 2016 @ 7:24pm

Re: Re: Re: Re: Re: Re: No, no it doesn't
And I thought xkcd was addictive.
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