Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?
On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to Reason.com in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.
In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting Reason.com from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling Reason.com that the Department of Justice asked, but did not require, that the subpoena be kept secret.
Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit Reason.com from disclosing or discussing the grand jury subpoena.
This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.
Is There A Gag Order?
Since my June 8 post, I've become convinced that it is likely that there is an under-seal gag order, probably obtained on Thursday, June 4, 2015, purporting to prohibit Reason.com from disclosing the existence of the grand jury subpoena. The U.S. Attorney's Office would have gotten such an order by making an under-seal application to a United States Magistrate Judge under authority discussed below, and obtaining an under-seal order in return. It's impossible to obtain such filings from the courts until the matter is unsealed.
Here's my reasoning.
First, AUSA Velamoor told me during our call on June 5, 2015 that he "believed" there was a gag order. I was skeptical at the time because it doesn't make sense to issue a subpoena to a libertarian news organization before you have the gag order in hand. I am now less skeptical, and to the extent I suggested that AUSA Velamoor might not have been honest with me, I withdraw that suggestion, and apologize to him.
Second, in thinking about the call with AUSA Velamoor, I remember that he asked me when someone gave me the subpoena. In retrospect, that inquiry makes sense if he obtained a gag order after issuing the subpoena, such that the timing of the disclosure was legally significant.
Third, Reason has now gone ten days without commenting on the story. This story — the federal government using grand jury subpoenas to uncover anonymous commenters — is squarely in Reason's wheelhouse, and would normally provoke justifiable outrage from them. A slight delay in commenting was consistent with them waiting until their lawyers figured out what was going on; this prolonged silence strongly suggests compulsion.
Reason declined to comment on this post. So did the U.S. Attorney's Office.1
Fourth, and perhaps least persuasive, two2 anonymous sources have asserted that a gag order issued after the subpoena. One source stated simply that a gag order was issued after the subpoena. Another stated, in some detail, that the gag order was served on June 4, after I received the subpoena, and that Reason's lawyers are fighting in court to lift it. I view anonymous sources with skepticism, particularly when they don't provide me with proof (as the source of the subpoena did). However, the sources are corroborated by the factors above.
There's Precedent And Statutory Authority For Such A Gag Order
In the subpoena in question, the U.S. Attorney's office didn't seek the content of any communications. It only sought identifying information about commenters. That, I believe, is why it was able to use a grand jury subpoena under Title 18, U.S.C., Section 2703(c)(2), rather than requiring a warrant under the provisions of that statute applying to stored communications.3
When the government issues a subpoena under Section 2703, it can ask the court under Title 18, United States Code, section 2705(b) for a gag order prohibiting the recipient of the subpoena from disclosing it:
(b) Preclusion of Notice to Subject of Governmental Access.— A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703 (b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in—
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
As Eugene Volokh noted last year, a handful of judges have begun to push back against overuse of this provision, requiring more serious showings of need or putting time limits on the gag periods. For instance, in Texas, a federal judge put limits on a government gag request in a related context:
Upon further deliberation, the court is convinced that setting a fixed expiration date on sealing and non-disclosure of electronic surveillance orders[2] is not merely better practice, but required by law: in particular, the First Amendment prohibition against prior restraint of speech and the common law right of public access to judicial records.
Similarly, a San Jose judge recently refused to grant the government an indefinite gag order:
Meanwhile, were the court to grant the government's request, Yahoo! would be prohibited from ever sharing the existence of the subpoena with anyone-even years after the grand jury moved on to other things. In an era of increasing public demand for transparency about the extent of government demands for data from providers like Yahoo!, this cannot stand.
But published opinions on this matter are few. The vast majority of such requests are processed without any notice or public statement.
It's important to understand that this statute is a significant departure from normal grand jury procedure. Normally grand jury secrecy binds the government, but not the recipients of subpoenas or the witnesses. That's because the grand jury is supposed to be a mechanism to protect the rights of individuals and prevent public investigations from harming the reputation of innocent people. This statute changes that rule dramatically by forbidding witnesses and recipients from talking about the subpoena, even if they have a substantial interest in doing so.
Such is the case here.
The Gag Order — And The Government's Apparent Continued Support Of It — Is Outrageous And Contemptible — It Is Un-American
Unless the government has evidence we don't know about — and there's reason to doubt that — it is shocking and outrageous that the U.S. Attorney's Office sought a gag order and continues to enforce it.
Think about it. This is an order telling an American publication that writes about freedom and abuse of government power that it can't talk about an abuse of government power. It is classic prior restraint, which is one of the most disfavored forms of censorship in American law.
I won't repeat my analysis of why the comments targeted are clearly not true threats, and why the issuance of the subpoena in the first place was a chilling abuse of discretion. But the gag order is an additional, more contemptible abuse of power. The government apparently convinced some magistrate of one or more of these factors justified gagging American journalists:
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
I suspect that once this whole matter is unsealed, we'll see that the government had no specific facts — other than the mere existence of the crude hyperbolic comments — supporting any of these factors. In other words, I suspect they won't have any rationale that they couldn't apply every single time they try to unmask commenters on the internet. Some commentators have suggested that the prior existence of other more elaborate and more "true" threats justify inquiry into these, because the government wants to see if the hotheads here and the hotheads there are one and the same. But that would mean that any time a public official receives any potentially true threat, all heated rhetoric about them is a proper target for secret investigation. The government ought only seek to muzzle journalists in the most extreme circumstances, and judges ought only permit it on the most persuasive of evidence.
It gets worse. The government did not merely seek an order gagging a magazine about a subpoena designed to pierce the anonymity of people commenting about a controversial case on a political website. The government has, apparently, continued to insist that the gag order be maintained even after the existence and content of the subpoena has been very widely publicized. What conceivable justification can there be now to prohibit Reason.com from discussing the subpoena, the gag order, and their significance? At this point, the gag order on Reason doesn't prevent the commenters from learning anything. The only thing it prevents is Reason discussing, and criticizing, and questioning the government's decision to subpoena commenters and gag them.
I concede the possibility of some bizarre "What if there's a wizard with a wood chipper?" scenario where the government has specific information that these commenters are (despite the non-true-threat nature of their comments) imminent physical threats. But if that's the case, why did the U.S. Attorney's Office serve the subpoena before it got the gag order? That makes no sense whatsoever.
Reason magazine is critical of the criminal justice system in general and the amoral and ruinous Great War on Drugs in particular. The people who comment on its posts are also critical of those things, using language that I don't like but that is clearly protected by the First Amendment. Federal prosecutors in New York have embarked on a campaign to compel Reason to pierce the anonymity of its community of political commentators, and has forbidden them from discussing that very use of power. The potential for harassment of dissenting individuals and publications is vast. The fact that the government here not only sought a gag order but maintained it after the subpoena became public demonstrated that the power will be abused.
There is no right more important than the right to criticize and question the government. It is the right upon which all other rights rely, without which all other rights are defenseless. Its suppression here is despicable. More people should demand that the U.S. Attorney's Office explain its extraordinary exercise of power.
Will you be one of them? Will your publication be one of them?
Or will you simply be next?
- Here's what I asked the office: I write with respect to a grand jury subpoena to Reason.com issued on June 2, 2015.
Is the USAO SDNY able to confirm that there is a gag order in place prohibiting Reason.com from disclosing the existence of the subpoena?
Is the USAO SDNY able to confirm that said gag order was issued on June 3, 2015, after the subpoena was issued?
Can the USAO SDNY comment on why it did not seek the gag order until after issuing the subpoena?
Can the USAO SDNY comment on what factors under 18 U.S.C. section 2705 it asserts justify a gag order? ▲
- I should say nominally two anonymous sources claim that the government obtained a gag order. The problem with anonymous sources is that one can pretend to be many. ▲
- Laws about computers tend to be unintelligible. I suspect that Reason.com is treated as a "provider of electronic communication service" under the statute because people can communicate through comments. Twitter, for instance, has been treated as a provider of electronic communication service. ▲
Last 5 posts by Ken White
- Lawsplainer: Did Gawker Aid and Abet Extortion? Nah. - July 20th, 2015
- Living To Make A Difference - July 10th, 2015
- Judge Lisa Gorcyca Doesn't Hate Kids. Judge Lisa Gorcyca Hates Failure To Submit. - July 9th, 2015
- What Did A Federal Prosecutor Need To Get A Gag Order On Reason Magazine? Pitifully Little. - July 9th, 2015
- Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not? - July 8th, 2015
It seems like this is all around really dumb on the part of the US Attorney's office. The gag order may shut Reason up while they fight it, but in doing this, they've imposed on very important rights of a legal adversary who can draw upon substantial resources to fight them.
Moreso than 99.9% of abuses of grand jury powers, targeting Reason is almost a fair fight. Reason is ideologically dedicated, has financial resources, and knows who to call to mount a really good first amendment case. Reason has a really good chance of winning against the gag order (since this a content based prior restraint of core political speech). In the process, it may create a binding precedent that hampers the US Attorney's office in the future.
Anyone in the area have a woodchipper that could be easily stolen and left on the courthouse lawn?
Assuming this all gets eventually dismissed as the nonsense that it is, what remedies does Reason have to recoup their attorney's fees and potentially see some sort of punitive action taken against this clearly unconstitutional conduct (assuming it is indeed proven to be just that)?
Thanks for writing this up. What a mess.
I'm wondering (since they're overreaching already): Could a gag order be extended to include other places, e.g. Popehat?
Maybe sites should have "gag order canaries" (like warrant canaries). Or would removing a post saying "We aren't under any gag order" constitute a violation of the gag order?
I wouldn't be so sure that Reason has access to "substantial resources," as Peter puts it. I'm not privy to current financial info, but it's always been a pretty hand-to-mouth place. They'd need to raise special money for such a court fight, and it's hard to do that if you can't talk about the case.
I'm sure that attempting to out-clever gag orders is a strategy that's just never going to work.
What I am wondering is whether the utter unconstitutionality/lawlessness of a gag order is a viable defense for violating it. If there's not a Kafkaesque presumption that one has a duty to follow even the most blatantly illegal orders, 'speak up and let them try to enforce it' seems like a much more attractive strategy.
sorrykb,
Do you really think they won't talk about this for a stretch of ten days?
That's why with warrant canaries they're periodically updated, and if they haven't been updated in a while you assume that there's a gagged warrant, under the assumption that the government can't order you to lie. Of course, that hasn't been tested in court yet.
@Peter H – but it all doesn't matter. Suppose that once Reason has the opportunity to fight it, their lawyers are able to show those from the USAO were wrong, and that the gag should be lifted now in any case.
So what? The only thing that happens is that the gag is lifted. But there are no adverse consequences to the government, the USAO, or their attorneys. Even if they lose, they'll just go do it again, without even as much as a slap on the wrist.
You do realize the obvious problems with having a precedent that stops enforcing gag orders after they've been broken once? For one, anyone could leak something anonymously, then be free to speak publically about it.
Of course it couldn't possibly happen could it?
https://en.m.wikipedia.org/wiki/First_they_came_…
A good guess for when they were served with the gag order:
Right before Gillespie posted asking people to stop talking about it.
Thanks for the continuing coverage on this – prior restraint and prosecutorial overreach only ever seems to get textured when there's press early in the process (afterwards the reviewing courts just bounce because it's stale, and it's hard to prove up pernicious effect broadly, though we're inching towards less so).
Also wanted to mention that posting direct links to Popehat articles on Facebook seems to be slightly broken, in that the title of the article isn't presented when the link posts. It's been this way since the site revamp, which has otherwise been pleasant enough. It only matters if you think Facebook is where people will see/share links to your articles… and it's my experience that substantial numbers do (at least on my feed). Seems like it would be a quick fix, and probably not a moving target.
The only reason I can think of to impose the gag order after the subpoena was on the front page of CNN is to prevent Reason.com from getting any traffic or making any money off this debaucle. It seems like a petty attempt to punish them for making the government look bad.
But that would mean that any time a public official receives any potentially true threat, all heated rhetoric about them is a proper target for secret investigation
I'm waiting for a prosecutor to argue that since the suspect in some case is a man, all men are under reasonable suspicion. Nay, all humans.
Jake: what about the reason I posted above; to avoid precedent of ignoring gag orders after they've been breached?
It is not clear to me in the least, why recipients of these types of orders don't facilitate disclosure of the gag order outside the relevant jurisdiction.
You know the sort of thing I'm talking about – like how UK 'super-injunctions' and 'D-notices' serve only to prevent UK-domiciled entities from talking about it (in the vain hope that the peasantry won't seek the story outside the castle walls)… meanwhile anyone with an interchoobs connection can obtain the story from sources outside the .gov portcullis.
Given that .gov could not seal its asshole with both hands, a litre of StopLeak and a 9" buttplug, there is little likelihood of ever being able to prove that such a leak came from the target of the (ball-)gag order and not (1) abysmal (i.e., .gov-competent) data security; or (2) some gobby twat who 'works'* for .gov.
Reason is not actually a person, and so can't be intimidated by .gov's high-school dropouts with badges and guns: the leak should be made by the legal fiction as opposed to any person who works there… that's easy enough to set up – just have a 15 year old write a script to steal a PDF and post it to DropBox.
[works*: recipients of tax dollars do not 'work' in the sense of providing a service that is voluntarily demanded. They receive welfare as a result of being so existentially pointless that they have no alternative but to suck at the tax tit in order to cadge a living.]
Also,
Thank you again Ken.
I owe you 2 steak dinners now.
Thank you, Virginia, for reminding us all that Reason needs money and cannot (particularly) ask. I'm going there right now to help them.
Piedmont asked:
No, I don't. I was just wondering about the wisdom of using "gag order canaries" more generally as a practice (although I really wouldn't want to call it that — It conjures up images of someone choking on some poor little bird just trying to sing… but maybe that's just me).
Kratoklastes: Do you mean a Defence advisory? D-Notices haven't been called that since the collapse of communism in Europe, partly because they weren't actually 'notices' but, formally, requests. They couldn't really be enforced and initially the system was not only voluntary but self-policed.
It was a bit like the 'no prior restraint' rule of US law in that a newspaper (say) could release the information anyway. The government could then bring an action to punish the newspaper for the consequences, and wilful release in the face of a defence notice would be an aggravating factor.
Problems arose because post-war they were so rarely used that newspapers really could and did plead ignorance of them. Ignorance of the law is no excuse, but defence advisories were not laws.
Superinjunctions are a different matter, but they too are not quite what they seem. Sooner or later such blunt instruments can be used in power struggles among the elite, which causes undesirable consequences.
This is another interesting overreach by a prosecutor (and they're invoking 1st amendment issues along the way, so it's doubly relevant):
http://arstechnica.com/tech-policy/2015/06/mpaa-says-1st-amendment-protects-studios-from-google-fishing-expedition/
One of the things we're missing is that the gag order prevents anyone from knowing if reason.com is fighting the subpoena itself (never mind the gag order) or if they've already complied.
^L
At the risk of allowing lawyers a laugh at a non-lawyer, I wonder what sanctions can be raised against the AUSA and anyone else involved once this whole thing is discovered to be "a fluffy mountain of crap"? (Pablo Picasso, Epic Rap Battles of History) I know an ethics complaint before the bar would be an exercise in futility, but maybe it should be done anyway just to serve notice that We're Watching And We're Not Happy.
Unfortunately, prosecutors enjoy an extreme degree of immunity for their actions. The chances of this particular AUSA suffering personally from it is pretty much nil, despite the fact that we now all know that he's the AUSA version of Nickelback.
Very soon after your first article came out, Reason also asked its commenters not to mention the case on its own blog site. I believe its owners are not only under a gag order, they're also afraid of being found in contempt because a commenter mentions the case there.
This seems to me a clear case of the law being misused, again, to shut up opponents of the administration. If I thought a Popehat Signal would do any good I'd suggest one — but I'm sure they can call on the people at Cato, if nobody else.
jdgalt:
That would explain why the Reason "blowhards" invaded (or took refuge in) the Popehat.thread.
jdgalt:
We don't know why Mister Gillespie wrote the post asking Reason commenters not to mention this, but it certainly hasn't stopped them from doing so.
Someone's public career will be over after this, and the next monkey replacing him or her will be more afraid of pulling tiger's tail.
Asking libertarians not to do something is like waving a red flag at a bull. There isn't any way
The JacketNick has been an editor at reason.com this long and not figured that out by now.@Sinij – that's not how it works. When the next person comes in to replace the tail puller, they need to make an example of the tiger so that all other tigers understand that it is safer to tolerate tail-pulling.
Just how broad are gag orders? If I receive a gag order, and wish to file a motion opposing it, I assume I can talk to my lawyer about it, right? If I'm trying to secure representation, can I tell a lawyer who doesn't currently represent me about the subpoena so that they know what I'm hiring them to do? Can I post a general advertisement for a lawyer to represent me in filing a motion opposing the subpoena? Can I solicit funds to hire a lawyer to file a motion to oppose the subpoena? Given that Reason isn't a natural person, I take it people within Reason can discuss the subpoena among themselves? I take it filing a motion doesn't violate the gag order, even if the motion is filed in a court that was not previously aware of the subpoena? Can I call my congressman and complain about the subpoena? If a publicly traded company receives a subpoena, can they tell their stockholders? Can the board members be told? If the company is a partnership, can the partners be informed?
Richard Smart; of all the motherfuckers, you are the motherfuckist,
I remember a similar story a few years back — the Phoenix New Times, in a story accusing Sheriff Joe Arpaio of having some questionable real estate deals, included the sheriff's home address. As it turns out, there's a law in Arizona against putting law enforcement officials' addresses online (although (1) it's legal to do it in print and (2) the address was already published on county websites).
Arpaio's office launched a frivolous grand jury investigation against the New Times. When the paper reported on that investigation, the publishers were arrested (picked up from their homes around 10 PM). As you note in this story, this is an inversion of the intent of the confidentiality requirement in a grand jury investigation; it's intended to protect the accused, not to put them in jail.
I remember the story getting some small but significant amount of national attention, and pretty universal condemnation; even people who love Arpaio and hate the New Times felt it was pretty out of line.
Arpaio blamed it all on a subordinate and fired him, which is what he usually does any time he's accused of any wrongdoing.
Why thank you, Mr Atkinson. I think.
I may be being pedantic and/or stupid, but you used a variation of the same phrasing twice: "an under-seal gag order purporting to prohibit Reason.com". I'm wondering if I'm understanding you right; are you trying to say it doesn't really prohibit Reason?
If I said I was showing you "A document purporting to be official", it would be one that says it's official (but is implied to likely not be); if it's "an order purporting to prohibit Reason" it would be one that appears to prohibit (but is implied to likely not actually), right? I always thought it was like "ostensibly".
Dick Smart, people like me who are libertarian appreciate Popehats defense of free speech of any sort. Unlike smug dicks like you that seem threatened by people who speak their minds. That is all.
We can only hope sinji, we can only hope that fed lawyers get called out.
Doesn't seem to happen much no matter which tribe is running the show, so I'm not holding my breath.
This is not America any more.
America, RIP
Most transparent Administration, Ever!
When your main goal in intimidation of your critics, 'Gag Orders' give you a nice stick to beat them over the head if they complain, and more important, it doesn't allow them to ask around and discover that DOJ is doing it to *all* the critics.
After all, it's not like they still have the IRS to 'audit' you. The Tea Party illuminated their technique.
It will help if comments would call out the person's Name. Just "the AUSA" doesn't ring. If this person ever runs for elected office, or otherwise requires the support of the public, it's his NAME that we'll see, then. It's Niketh Velamoor. Remember: No Support! It's Niketh Velamoor.
Do not support Niketh Velamoor.
You guys do know that prosecutors are also attorneys, right, and they're subject to discipline by their various licensing jurisdictions for unethical practices? Particularly involving fraud or deceit before the court? It does not need to be as bad as what Nifong did, and judicial immunity is not a defense.
NK, I suggest you read these posts before you talk about attorneys losing their licenses. AFAIK, none of the involved attorneys has lost their license.
Not sure Reason has deep pockets to defend itself, but it does have a donate button on the web site and a comment box where you can enter for your legal defense fund.
Dear "Mike",
"That is all" seems like rather a lot. I'm sorry you feel that way.
Not sure how you read feeling "threatened by people who speak their minds" into a one-sentence post, but perhaps the word "blowhards" had something to do with it. It was not my word, hence the quotation marks.
I am not now, nor have I ever been, resident in America. I have no dog in your fights (and in particular I have no interest in libertarianism, or indeed any other -ism). Consequently, you and your ilk are no threat to me. If that is being smug, I can live with it. I would politely request that your aim improve. Please pick your enemies more carefully, or you will make more of them.
This place shines a unique light on the (mal)practice of law in the US, which should interest any citizen of the world. Even some of the comments. I had not been aware of the fabulous Sheriff Arpaio, for example, till Thad's comment above induced me to look up his career on Wikipedia. Others from the peanut gallery are less enlightening.
That said, freedom of speech is worth defending. Bravo. Keep it up.
Can they gag order us all? Shouldn't we all just post, everywhere we can think of, in the most hyperbolic, "non-true threat", manner possible as protest?
Obviously, I mean, in addition to raising awareness of the Reason.com thing and helping them financially if possible…
"Asking libertarians not to do something is like waving a red flag at a bull. There isn't any way The Jacket Nick has been an editor at reason.com this long and not figured that out by now."
@Rob – I half expect that this was the entire point of the ask. The AUSA (likely with stupidity aforethought) got pissed off that his star chamber was about to be exposed, and demanded that Reason "say something."
So we have near certainty a gag order was issued by AUSA Niketh Velamoor at the behest of Preet Bharara to publisher Reason.com to muzzle public criticism of prosecutorial abuse antithetical to the First Amendment.
Any update on the venality of the AUSA issuing the subpoena and subsequent gag order just to grease* a judge they appear before in court?
*metaphorically speaking, not literally
Ahh, I remember when I was this naive. If only I could return to those halcyon days.
Sheesh, half of Reason's chat-hens have changed their pseudonyms to clever and in-your-face variations on a wood-chipper theme. If that's not a bold "Fuck you!" to the DOJ, I don't know what is.
@jdgalt
Not that this in any way invalidates the fear, given the government's overreach thus far, but shouldn't the owners of the site be protected by Section 230? The site owners can't possibly be expected to control what their commenters talk about, and the gag order can't reasonably be applied to a public forum such as a comment thread. The government shouldn't be able to claim that an anonymous commenter discussing the subpoena counts as the owners of the site violating the gag order.
Dad would yell at me quite sternly, and was he ever scary in uniform, then snap at me further to quit crying or he'd give me something to cry about. And I'd stand there pissing my pants thinking what a fuckhead. What went wrong Niketh, Preet, can't you break the cycle, or are you two your own special evil?
I hope I'm not a tinfoil hat nut but the whole situation feels too much like it's intended to chill free speech as we get closer to a national election. I know this judge/AUSA aren't an arm of the Democratic party (necessarily), but in light of what happened to the various tea party organization at the hands of the IRS, well, I can't help wondering if federal agencies aren't being used to suppress unpopular (with them) opinions. Knee-capping Reason, punishing and distracting them, when an actual semi-libertarian candidate has a realistic chance at the presidency is too coincidental.
So when the AUSA originally gave you the, "I believe there is a gag order…" business, was that because even HE is not allowed to confirm whether Reason is under a gag order? Yet, simultaneously, he wanted you to know that you shouldn't know what you know and wondered how you knew it?
Lady Bertrum, I don't think it has anything to do with partisan politics and has everything to do with preserving the state.
The power of the courts, the power of the prosecutors, the power of judges all spring from the supremacy of the government over the people who live in its territory. And that supremacy is largely based on the people's belief that the state is too powerful to fight.
For example, most people comply with subpoenas that are hurtful to them. They comply our of fear of the poenas, the punishment, that is threatened for non-compliance. The state has the capacity to punish a couple of thousand people for non-compliance, but not hundreds of thousands or millions of people. If people stopped complying en masse, the power of a subpoena would disappear and the courts would be rendered ineffectual.
Silk Road was the manifestation of a new capability that allows people to evade punishment. For a few years, people could safely purchase contraband safely, and the state was struggling to stop it. It was a direct challenge to those who believe the laws of the state should be supreme, since it enabled widespread disobedience.
Moreover, I think the allegation that the Dread Pirate Roberts attempted to hire a hitman was on the minds of the people prosecuting him. Philosophers in the crypto-anarchist movement have put a significant amount of thought into use of assasinations to completely upend the power relationship between the state and its people (see Jim Bell's Assasination Politics for a major example), and the advances in crypto-currencies are starting to make some of these things technically feasible.
I suspect that the gag order wasn't intended to silence criticism. I suspect that the prosecutors are really starting to fear that people who hold the state in contempt might be able to organize ad hoc conspiracies that fund and carry out rebellious acts such as assassinations.
I think it's laughable; I've met many members of the Reason commentariat, and we are very much "the best revenge is living well" types. We'll give the state the finger, but we are very much not the sort of people to scream "
to your tents, O Israel!to your woodchippers, O Reasonoids!" Subtract the businessmen, the economists, the family men, the lawyers, the farmers, and all you are left with are a bunch of computer programmers. Sure, we have nicole, who is the worst, but she'll correct a judge's grammar, not shoot him.But I bet the AUSA has none of this knowledge. All he has is his hatred of anarchy and his fear of anarchists.
I'm afraid those who expect something to come of this outrage (other than Reason losing a bunch of money and feeling chastened) are deluding themselves. Those of you who read Reason (as I do, and I comment, too) might know the phrase 'AND NOTHING ELSE HAPPENED'. And that's what's going to happen.
NOTHING.
Nobody will lose their license. Nobody at the DoJ will be shamed. Nobody will apologize. Nobody will even care. And our rights will take another enormous hit.
Are there stars on the ceiling of the court room where this gag order may have been issued?
But you just proved it with your nutty conspiracy theory. Not that Democrats and their minions in the DOJ aren't really, really afraid of an unorganized, contradictory, philosophically inconsistent "political movement" which exists almost entirely within the echo chambers of obscure internet chat rooms. Gary Johnson's 1% of the popular vote in 2012 sent the political establishment a clear message — don't mess with libertarians!
tarran June 19, 2015 at 9:35 am:
The two are not mutually exclusive.
Elementary google-fu will yield at least some tentative indication about the political leanings of both Niketh Varadaraj Velamoor and Preet Bharara.
A quick search at campaignmoney.com indicates:
Mr. Velamoor donated some $2050 in 2008 and $1,624 in 2012 to a fund called Obama for America.
Someone named Preetinder Bharara of Bethesda, MD, who claimed to be employed by the United States Senate Judiciary Committee at the time, donated $1000 in 2008 to that same fund.
Does this prove partisan political motivation for issuing the subpoenas to Reason? No. Nor does it disprove such motivation.
But, if evidence of any partisan political motivation does emerge, those contributions do suggest the nature of such partisanship.
Now, if you will excuse me, I have a clutch of chat-eggs to attend. If they don't hatch, I will have to throw them into the wood-chipper — but only after taking them out back and shooting them first, of course.
I think the fact that these guys donated to the presidential candidates of Barack Obama is meaningless. Reason savages both Democrats and Republicans. You could just as easily claim that a donation to Romney and Jeb Bush as evidence of partisanly motivated animus towards the magazine.
There are far worse things being said on actual partisan sites – and ones that are far more widely read than Reason(!) – by partisan commenters who would love to see their political enemies sent to camps. This rationale could be turned on Salon or Breitbart far more easily and far more effectively.
I don't think the partisan politics hypotheses survive any inspection. I think if they genuinely think that the commenters might be plotting assassinations, then it's a fear that we anarchists are organizing.
If they don't genuinely believe that there was possibly some conspiracy, but were being disingenuous, then I think such a subpoena would be it's an attempt to suppress people badmouthing their office. But to suppress, one must make public examples, and gag orders don't accomplish that. A weapon whose existence is kept secret can't act as a deterrent. Thus they would be trying to solely intimidate Reason magazine into silence, which is pretty nonsensical given that the Silk Road case is being discussed in more widely read technical sites – some of which were taking a similarly uncharitable editorial line toward the prosecutors.
I think that the AUSA genuinely believed that some of the people commenting on Reason were intending to harass, intimidate or even harm the judge. It could have been the two non-regular participants listed in the offending 'chat'; who knows where those guys hang out and what they plot, scheme or discuss there?
A wait and see attitude, and possibly setting aside some money to contribute to Agammamon and Rhywun's defense fund should they need one, is – I think – the most appropriate response to this silly yet disturbing episode.
Yes. http://reason.com/blog/2015/06/19/government-stifles-speech
According to Reason, yes they did.
1. Am I right that the only purpose of a gag order is to avoid alerting the suspect who is being investigated? If so, once the investigation is public knowledge, the gag order has no legitimate purpose.
2. I wish Reason would defy the gag order. We need to get some precedent on this, and some public slapdown. The case might moot out otherwise. COuld some rich person offer to pay for their defense? I might help with $10,000 or so– Reason people, give me a call if you're interested and maybe I'll commit to it.
Eric: The order has been vacated. https://d1ai9qtk9p41kl.cloudfront.net/assets/db/14347464025850.pdf See the comment before yours for the Reason story on it.
Good to see Reason acknowledge that , facing a subpoena , they sing like a canary.
SIV: they did say they gave the commenters the chance to contest it, and none did.
"None of the six commenters informed us that they would be filing motions to oppose the U.S. Attorney's subpoena. Therefore we complied with the subpoena on the deadline of June 9."
Ken was right. The stalker is here. That means everything is going to plan.
Ken, I now owe you a Diamond Jim at Lawry's.
Scooby June 19, 2015 at 3:07 pm:
I hope all practicing lawyers reading Popehat read that Reason link carefully.
Silly me, I thought that ABA Model Rules of Professional Conduct (or some jurisdictions' equivalent rules) provided:
I wonder what Velamoor's reason for disregarding that rule was.
I'm sure he'll be glad to explain.
Dang! Popehat doesn't miss anything. Congratulations!
Just saw this tweet, via comments at Reason:
I don't usually read twitter, or entire comment threads at Reason. So I posted my previous comment without knowing Popehat already had it covered. That's my story and I'm sticking to it.
I'll expand this weekend. But the short answer is that he was allowed to do that — to contact a represented party in an attempt to intimidate them — because this is America and we make special rules for prosecutors.
And then you wonder why someone was calling for woodchippers, even if it was tongue in cheek.
Reasonoids declare victory!
Wait, what?
http://reason.com/blog/2015/06/19/government-stifles-speech
Hear that, "Todd"? I'm offering to go out to dinner with a stranger and pick up the tab because of you. There are good people, and then there's you.
I don't blame Reason for complying with the subpoena. They had little chance of successfully fighting it. I figured my own motion would have as little chance of success, and there was not much time to act for a very intimidated private citizen on his own dime. I didn't realize at the time that if I had filed my own motion, they would have refused to comply with the subpoena.
Mostly, I am very glad this is out in public for all to see.
BTW, while I am not the high-volume, high-recognition commenter some at Reason are, I have a very long history of participation on the site.
Take that Betteridge's law of headlines.
I wondered about this. From what was quoted in Nick and Matt's post, it struck me that they hadn't made the situation clear in the email they sent to commenters, which is unfortunate.
At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena.
If this is how Ms. Sproul "entered her appearance" in the case, then the subsequent service of the gag order and the cover letter directly to Mr. Alissi was not only proper but necessary. Keeping it simple, Ms. Sproul was not credentialed to either receive process or to be given confidential information about the case.
What next?
Ought someone to enter a complaint with the New York Bar Association about the specific prosecutors? In this kind of case, it isn't enough to just win. To deter future misbehavior by prosecutors, going on offense is necessary.
Also, we need to stigmatize the judge or magistrate who authorized the gag order. What is his name? One might even suggest impeachment.
There's an "actual innocence" rule for attorney misconduct. If Reason or the commenters had contested the subpoena or the gag order and had won, then there would be a case against the prosecutor and possibly (but doubtful) against the magistrate for ethical violations. When they threw in the towel, it was all over. It was a judicial admission that the subpoena and gag order were lawful. Vae victis. If you want your rights, you have to defend them.
The problem with all this deep legal stuff — '"actual innocence' rule," "…if the commenters had contested … and had won…," "judicial admission" and so on is that a layman doesn't know what hes acquiescing to simply by not acting, and acting is expensive — just getting enough legal help to understand it all is expensive — and risky in its own right.
The law has become unknowable and unmanageable for the common man, and that's tyrannical.
Indeed. Submitting to a legal action constitutes an admission that it's lawful? That is unbelievably absurd. It's clear that judges and prosecutors have baked every possible protection for themselves into our legal system. Screw the common man.
@ Jordan
It's more a matter of "If you won't stand up and say 'No, this is wrong', why should anyone else?"
It's absurd to expect all victims of injustice to stand against the might of the State, given the incredible expense (in both time and money) required, and the low likelihood of success in many cases. And since the legal codes in this country are enormously complex and voluminous, it's also absurd to expect victims of injustice to even know when they're the victim of injustice. Prosecutors shouldn't get a free pass just because their victims didn't realize it until after the fact.
No lawn at that courthouse, but there is some kind of war memorial plaza. It would be funny but probably not helpful to the Woodchipper 6.
@NK
Because it is? Just a thought.
To be clear (for a non-lawyer): when facing actions initiated by the court, if you believe them to be unlawful you must contest them or else be presumed to concede their legality, but when facing actions initiated by the police, if you believe them to be unlawful you should* immediately comply and rely upon the courts to identify the illegality for you?
I already recognize that there is no requirement to comply with illegal police actions, but personal safety compels compliance as the only prudent course of action.
That's not what courts sometimes say. a story I recall from Volokh
There is indeed such a presumption. Gompers v. Buck Stove, 221 U.S. 418 (1911). The presumption also requires prescience, in that you can be punished for violating the injunction through behavior occurring prior to the injunction. Id. at 422.