We Cannot Be Silenced

[ACT For America]
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JUDGE CASTIGATES JUSTICE DEPT!

Judge Rebukes Biden DOJ for ‘Overbroad, Burdensome’ Subpoena of
Conservative Group 

Hans von Spakovsky / Zack Smith | October 21, 2022 | Condensed

On Sept. 20, we reported on an outrageous subpoena served by the
U.S. Justice Department on the Eagle Forum of Alabama. Fortunately, in
the face of vigorous opposition expressed in amicus briefs filed by
literally dozens of conservative organizations supporting the Eagle
Forum’s motion to quash (i.e., throw out) the subpoena, Justice
Department lawyers caved and narrowed their request—as the judge in
the case put it—to “1%” of what they were demanding before.

It gets better.

At a hearing on Oct. 14 on the motion, according to a transcript we
have obtained, federal Judge Liles C. Burke castigated the Justice
Department for its “vastly overbroad and unduly burdensome”
subpoena and declared that he “would have issued an order to
quash” the subpoena if the Justice Department had not withdrawn
almost all of it. And Burke hinted that he would be open to
considering sanctions against the Justice Department. Click here to
Impeach Garland and Wray.
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A QUICK REFRESHER ABOUT THIS CASE IS IN ORDER: THE USUAL LEFT-WING
ADVOCACY GROUPS AND THE BIDEN JUSTICE DEPARTMENT SUED ALABAMA AFTER IT
PASSED THE VULNERABLE CHILD COMPASSION AND PROTECTION ACT
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WHICH BANS PUBERTY BLOCKERS, HORMONE THERAPY, AND SURGERY TO ALTER THE
BIOLOGICAL SEX OF A MINOR. THEY CLAIM THE LAW VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE 14TH AMENDMENT.

[Protect Children's Innocence]
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[Click Here. ACTNOW]
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Eagle Forum is not a defendant in the lawsuit. It’s a small,
nonprofit membership organization with lots of volunteers—ordinary
citizens—and two employees, one full-time and one half-time. Its
members, who were concerned over this issue, did what all of us have
the right to do under the First Amendment. They spoke out, made
speeches, organized meetings, and talked to their state legislators.

But because of their advocacy, they were targeted by the Justice
Department with a massive, capacious subpoena that sought everything
the Eagle Forum and its volunteers have done or said for the last five
years on this issue. It was clearly an attempt to intimidate the
organization, deter its activism, and perhaps punish them for
exercising their First Amendment rights on a policy issue the Biden
administration disagreed with.

As we pointed out before, nothing that the Justice Department was
demanding had any relevance whatsoever to this lawsuit, since the
Eagle Forum is not the legislature that passed this law. Burke himself
echoed that point when he asked, “how in the world could what the
Department of Justice is asking for possibly be relevant to this case
and its outcome,” given that the issue is “whether or not this
statute is constitutional”?

The judge asked Justice Department lawyer Jason Cheek why the
department had suddenly gone from “asking for [an] ‘everything we
can think of subpoena’ down to [a] ‘we just really actually one
need one thing’” subpoena just before the hearing. The only answer
the lawyer was able to squeak out was the “amicus briefs filed by
numerous organizations” and his complaint that the Eagle Forum did
not first have a “conversation” with the department to negotiate a
narrowing of the scope of the subpoena. He repeatedly complained that
“this thing has grown some legs” after so many groups filed briefs
opposing his subpoena.

In other words, only because there was vigorous opposition to the
subpoena by multiple organizations did the Justice Department decide
to withdraw its disgraceful subpoena. And that opposition entailed
costs and time to not only the Eagle Forum, but the dozens of
organizations that came to the Eagle Forum’s defense via amicus
briefs.

Furthermore, the lawyer for the Eagle Forum, John Graham, pointed out
that the applicable federal court rule on allowable discovery in a
court case “imposes no such obligation” on the target to try to
negotiate a “deal” with the Justice Department. The rule, as
Graham correctly said, requires those “serving a subpoena—the
federal government, in this case—to take reasonable steps to avoid
imposing undue burden and expense on the recipient of the subpoena,
and authorizes sanctions on a party or attorney who fails to
comply.”

Added Graham: “Rule 45 leaves no room for a party or attorney to
issue an untimely, facially overbroad and unduly burdensome subpoena
and expect to work out the details later.”

Here, Justice Department lawyers failed entirely to abide by their
ethical and professional duty to ensure that they do not engage in
abusive discovery that is burdensome and, as the judge said, “not
reasonably calculated to lead to the discovery of admissible
evidence.” In fact, the judge noted that the new “narrowed”
subpoena wasn’t really narrowed at all, it was asking for new
information not even originally requested by the Justice Department.

BURKE WARNED THE DEPARTMENT ABOUT THE DIRE CONSEQUENCES OF ITS
MISBEHAVIOR:

_Administrations change every four years, or at least every eight. Is
the new standard going to be that these kind of subpoenas go out in
legislation to any advocacy organization, and they want emails to
their members, they want social media posts, they want things that the
group just considered in their advocacy?_

_… Is that where you think the Department of Justice thinks we need
to go in this country? Because I promise you this, at some point this
will be aimed at the Southern Poverty Law [Center] and the ACLU, and
their efforts, as well. Is this where we need to go?_

IT IS CLEAR THAT SUBPOENAS LIKE THIS ONE ARE INTENDED TO HARASS THOSE
WHO ARE ON THE CONSERVATIVE SIDE OF POLICY DEBATES IN ORDER TO CHILL
THEIR SPEECH, DETER THEIR ACTIVE PARTICIPATION IN THE DEMOCRATIC,
LEGISLATIVE PROCESS, AND DISCOURAGE CITIZENS FROM CONTRIBUTING TO OR
OTHERWISE AFFILIATING WITH ORGANIZATIONS LIKE THE EAGLE FORUM.

Such abusive discovery threatens the First Amendment rights
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membership organizations to engage in free speech, associate with
others who share their beliefs, and speak to their elected
representatives and other government officials about public policy
issues that concern them.

IT IS LAWFARE AT ITS WORST.

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