Last Friday the folks at Reason confirmed what I suggested on Thursday — that the U.S. Attorney's Office for the Southern District of New York, after hitting Reason with a federal grand jury subpoena to unmask anonymous hyperbolic commenters, secured a gag order that prevented them from writing about it.
Nick Gillespie and Matt Welch describe how it all went down. Read it.
So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.
What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?
The answer lies in the everyday arrogance of unchecked power.
The Subpoena and the Gag Order: Rote Over Substance
Throughout this story some people have suggested that there may be hidden facts, unknown complications, that justify the government's conduct. Now that Reason's journalists can speak, we can see that there's no there there.
First, the subpoena. Some have argued that the Department of Justice must have had information spurring them to use the grand jury to pierce the anonymity of people engaged in protected political speech. Not so. As Reason's report shows, Assistant U.S. Attorney Niketh Velamoor never articulated any specific basis to fear the bluster of these commenters — any more than he did when I spoke to him.
Saturday I interviewed Mike Alissi, publisher of Reason, who confirmed that Velamoor never suggested that he had any basis to view these as true threats. In fact, he seemed uninterested in the distinction between protected speech and true threats, and refused to narrow the subpoena to carve out the patently non-threatening "special place in hell" commenter. There is no secret ticking time bomb, no wizard with a woodchipper, no classified justification.
This was the Department of Justice targeting speech because it could.
Next, the gag order. Reason has published the gag order. As I suspected, the government relied on Title 18, United States Code, section 2705 to justify it. That statute lets a judge issue a gag order prohibiting disclosure of a subpoena if the government proves the following dangers:
(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.
Now look at the gag order:
Upon the application of the United States pursuant to 18 U.S.c. § 2705(b):
1. The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.
And with that, United States Magistrate Judge Frank Maas ordered that American journalists could not report on a government abuse of power for 180 days.
This was not a review by a neutral judicial officer; it was a rubber stamp, obediently regurgitating back the statutory factors without reflection or any finding of fact. The Magistrate took the government's word for it, because of course, the government never misleads federal judges.
Note the "one or more of the following," showing that the finding is formulaic, not based on anything specific. Unduly delaying a trial? How could disclosing the subpoena possibly delay a trial when there are no charges, and never will be any charges because the comments being investigated are so clearly protected by the First Amendment? No. The statutory factors aren't all there because AUSA Velamoor presented actual particularized evidence of them and Judge Maas agreed based on evidence that they were present; they're there because they are in the statute and the government and the court, hand in hand, are just checking off boxes on a form. There is no hint that Judge Maas, let alone Velamoor, gave any consideration to the fact that the targets of the gag order were journalists, or that the underlying subpoena poses grave First Amendment concerns. Here, the theory that executive power will be checked by the court was a farce.
You can buy a rubber stamp for five bucks. Your tax dollars rent a Magistrate's rubber stamp at a hundred fifty thousand a year.
The government hasn't unsealed its application for a gag order. I hope that someone will use legal process to compel it to do so. Here's my prediction: when it comes to light, it will contain no more substantive information than appears on the face of the subpoena. That is, it will merely say "these people said these things, we want their information, therefore, give us a gag order."
Reason also published AUSA Velamoor's letter asking that the gag order be lifted, and the order lifting it. Velamoor correctly noted that the order should be lifted because the subpoena was released to the public on June 8, when I published my initial post, and was widely known to the public. But Velamoor waited 11 days after that post to ask that the order be lifted, and Reason informs me that he only did so when its lawyer was on the brink of filing a motion to lift it. What was the possible justification for keeping Reason gagged for those 11 days?
Judge Frank Maas, by the way, is a colleague of Judge Forrest, the target of the questioned language and the subject of the subpoena. They work in the same courthouse.
Law Enforcement Is Better Than You: The Same Rules Don't Apply To Cops And Their Lawyers — Thug Life!
Gillespie and Welch also describe how AUSA Velamoor conveyed the gag order. Reason's attorney, Gayle Sproul, called Velamoor, told him that she represented Reason, and tried fruitlessly to reason with him. Velamoor blustered, then sought and obtained a gag order. But he didn't send it to Reason's attorney, with whom he had spoken only hours before. Instead, he sent it directly to Alissi, Reason's publisher:
Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena. The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena. The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation.
I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.
Please forward the Order to the attorney and any other individuals who should be aware of it.
Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.
Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.
If I did that, I'd be disciplined. If Gayle Sproul did it, she'd be disciplined. That's because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication. That prevents lawyers from tricking the clients of other lawyers into ignoring their counsel to their detriment. New York's Rule 4.2 of the Rules of Professional Conduct governing lawyers is standard:
In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.
So will Niketh Velamoor be disciplined for breaking this rule?
Don't be ridiculous.
Even if state bars reliably disciplined prosecutors for misconduct — and this never happens — prosecutors are protected by a special rule. Judges — judges just like Judge Frank Maas, who issued the gag order — have decided that prosecutors need the power to make end-runs around lawyers during the investigation phase of cases, and that this conduct is therefore "authorized by law." Courts have decided that it would be too burdensome to require federal prosecutors to abide by local ethical rules, rules that apply to literally every other lawyer in the United States, and too restrictive of law enforcement to prevent them from making such pre-indictment contacts as they see fit.
But consider this incident. What legitimate, ethical need did AUSA Velamoor have to contact Alissi directly instead of responding to Reason's lawyer? How was it necessary for effective law enforcement? How would restricting his communications to Reason's lawyer be burdensome? It wouldn't. But the courts reflect America, and America has embarked upon a course of almost canine deference to police and prosecutors.
It is, too often, enough for police and prosecutors to say they want to do something. Who are judges to say otherwise?
Threats, Deliberate and Indifferent
It's tempting to believe AUSA Niketh Velamoor has some specific hostility towards Reason, or libertarians, or people who comment on the internet. But that's not the truth. His conduct is more consistent with the great tradition of entitlement and arrogance that comes from giving a little man power.
No offense, Mr. Velamoor: I was an entitled, arrogant little douchesquirt when I was a federal prosecutor, too. You can hardly fail to be when you're handed such power over people's lives at twenty-six. "Power doesn't always understand that it is power," Gillespie says aptly. A fish doesn't know it's in water; a prosecutor doesn't necessarily perceive that he or she is swimming in the power to terrify, the power to chill speech, the power to destroy lives with no more reflection than you or I might use to phone in the least demanding task of our day.
The prosecutor is just watching the clock. The job is doing him.
Velamoor's conduct was threatening throughout — not threatening like a stalker or a foe, but threatening like a tired parent who wants obedience and gets angry with anything but quick compliance. The initial form letter accompanying the subpoena noted that while disclosing it was not forbidden, "disclosure of the existence of this investigation might interfere with and impede the investigation." What does it imply when a federal prosecutor tells you that?
Most people interpret it to mean that, if the prosecutor decides you've disclosed it in some undefined way that thwarts his or her investigation, you may be the prosecutor's next target. That's certainly what Velamoor implied when he told me on the phone that he was going to "look into" how I got the subpoena, and what he strongly suggested to Reason's lawyer when he told her that Reason was "coming close" to interfering with a grand jury investigation by doing exactly what they were entitled to do and exactly what the letter said they could do. Later he told Reason that he had "preliminary information" that they had violated the order and that he was "looking into it," yet another threat. It was a threat premised on a lie, since Reason only sent the subpoena to the targeted commenters before the gag order was issued, and because Reason didn't send it to me.
It's easy to dismiss this kind of government intimidation when you're not its target. It's quite another thing to live it.
Reason's staff was concerned from the start. Velamoor delivered the subpoena by calling the Washington D.C. office of Reason, barking at a God-damned intern (bless the poor intern's heart), and demanding know where he could send a federal grand jury subpoena. Once the subpoena arrived, and then quickly after the gag order, the team experienced what both Alissi and Gillespie described to me as alienation and loneliness. They were concerned about discussing the matter even in-house, they knew that they couldn't contact friends and colleagues outside Reason for guidance and support, so they stewed in it on their own. They couldn't find out if other people had experienced the same thing and how they had dealt with it.
As Velamoor repeated his allegations of a violation of the gag order, the impact was more and more chilling. They knew they hadn't done anything wrong, but also knew that didn't matter. "Being innocent doesn't mean you're safe," point out Alissi. Alissi and Gillespie both viewed the subpoena, and the gag order, and the purported investigation of a leak as ridiculous and bizarre — a preposterous waste of resources. Gillespie called the accusations "comical" and admitted his first response was incredulity, building to rage. But what was both deeply concerning and infuriating was that it really didn't matter whether Velamoor was proceeding from malice, from bias, from indifference, from kissing up to a judge, or from sheer incompetence. He had the power to destroy lives no matter how or why he exercised it. The notion that he might launch investigations and prosecutions out of stupidity was, Gillespie said, more frightening than the prospect that he was some sort of Machiavellian genius.
(Which he isn't.)
And so, for the fifteen days from the subpoena to lifting the gag order, Reason's staff fought anger and anxiety, and was held hostage from reporting on an important First Amendment story at the core of their mission. They didn't, and couldn't, know how it would come out, nor how Velamoor would exercise his power over them. Would they have to change what they wrote about? Would they be forced to restrict the free-wheeling nature of their comment section?1 They knew they could fight for their principles — but knew just as well that fight could be financially and personally ruinous, if Velamoor decided to make it so.
Had he chosen to push his power play, Velamoor could have bankrupted Reason.
The Bright Side
This episode invites pessimism. But Nick Gillespie suggests that it should encourage us, because it showed how difficult it has become for the government to get away with silencing us. "We're in a better place in terms of free speech than we've ever been as a country," he says, citing both culture and technology. "It's harder and harder for the government to shut down the conversation." Certainly things didn't go the way the government hoped here.
The challenge is to use Reason's fifteen days of enforced silence as a catalyst, not a deterrent. Technology is only as effective as the people who wield it. We need to be committed to watch for, examine, and report on abuses of power like these. More people need to tell their stories of encounters with it. "No one knows how often this happens, or who is the target," said Gillespie, who emphasized that we ought to be worried about anyone getting a gag order, not just a professional journalist.
"Unless people speak up, and unless people repeat the story, we won't have a good sense of how this power is abused." We also need to resist the temptation to filter our vigilance through partisanship. Many people have responded to this story with comments about the Obama Administration, a purely fatuous reaction, as though Obama has time between his golf outings and Steve Wonder concerts to censor a small magazine — but the danger will remain no matter what flavor of politician is in charge. "Power is nonpartisan," says Gillespie.
In Closing, An Offer
The commenters targeted in the subpoena are probably worried about a knock on the door. That knock may come. I don't think it will be accompanied by an arrest warrant, but it will be accompanied by petty thuggery and the threat of power, banal or not. Commenters: shut up. Ask to talk to a lawyer.
And drop me a line: there are many defense attorneys outraged by this, and we'll find you counsel, pro bono if needed.
I'm indebted to my friend and co-blogger Patrick for his work on this series.
- Reason commenters are still rather put out that we spoke ill of them. Now that this is wrapping up I should make amends, with a nice lunch or a fruit basket or goat porn or a cockpunch or whatever. ▲