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The Justice Department Gets Smacked Down

Posted on Saturday, October 22, 2022
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by Outside Contributor
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30 Comments
Justice

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subpoena and declared that he “would have issued an order to quash” the subpoena if the Justice Department had not withdrawn almost all of it.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.

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, 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 Fourteenth Amendment.

Eagle Forum is not a defendant in the lawsuit. It is a small, non-profit 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. Judge 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 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.

Judge Burken 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 of 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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Ty
Ty
1 year ago

When you have a government run by the unelected, the swamp, and a president that relays on a teleprompter for direction, you get this type of criminal authoritarian over reach. If you don’t vote this government out, this will be the justice you will be forced to contend with in America. Don’t forget the additional 85,000 armed IRS agents! So, if your children don’t vote you are better off spending their inheritance!GBA!

Jack
Jack
1 year ago

Finally a judge who follows the law and the constitution.

David Millikan
David Millikan
1 year ago

Excellent article.

Hal
Hal
1 year ago

For those who aren’t paying attention to the tactics of the DemocRats …. their tactics would be the rules they would push if they were a Communistic Party. And it is not difficult to presume if you act along the lines of a Communistic Party, you in truth and fact are a Communistic organization. The DemocRat Party does not seek to GOVERN according to the Constitutional laws … but rather seek to RULE following Communistic tactics. And the DemocRat Party has become very proficient in rigging elections to insure they maintain control of the governance by Rule using phony claims of opposition law-breaking and rigging of elections.

Linda
Linda
1 year ago

God bless Judge Burken and his decision. Protect him and all those fighting the good fight during this terrifying season of a DOJ running amuck and being used to intimidate for political reasons.

Winston Hooker
Winston Hooker
1 year ago

outstanding

Rick
Rick
1 year ago

Thank goodness. Wouldn’t it have been just great if we would have gotten that idiot for a Supreme Court Judge

Lisa Skinner
Lisa Skinner
1 year ago

Biden, the DOJ and FBI should all be removed from the office ls they hold. Communism and tyranny is running rampant with this installed administration

Phil Brown
Phil Brown
1 year ago

How quickly can a free country descend into a partisan police state that unleashes the full force of federal law enforcement as a boot on the necks of their political and ideological opponents? One single administration – one Democratic Party’s executive office weaponizing a corrupt DOJ with massive resources of unlimited money, radical leftwing lawyers and a brutish, compliant FBI given free reign to strong-arm their citizens while an equally radical and corrupt legislature, controlled by that same Democratic Party, provide full cover with no oversight. Just one…one leftist administration with the full cooperation, advocacy, censorship and propaganda afforded them by an even more rabidly leftist, praetorian guard media and their corporate, big tech masters.

anna hubert
anna hubert
1 year ago

Horror stories are just that stories but this nightmare is real and we are grateful for one man that does the proper job

Marcella Covault
Marcella Covault
1 year ago

Why do you think the DOJ/FBI judge-shopped in secret before raiding Mar-a-Lago? Why do you think they don’t want to provide the basis for the warrant? They know that they are following the Communist playbook, and they think they will have immunity in the new Communist America. TRAITORS!

John W Harries
John W Harries
1 year ago

This current administration breaks the law until they are forced to stop, and not most of it is in time.

Carol
Carol
1 year ago

I havs never seen an administration so bent on dicatorship than this one! I saw the Clinton and Obama administrations going down this road but they did it real sneaky while trying to keep a sraight face to the public. But Biden and his thugs hide nothing!!! I already voted early and I pray that red wave comes fast and furious so we can get to a place of sanity, maturity and patriotism again !!!

William C Smith
William C Smith
1 year ago

The “justice” department, particularly the management levels of the FBI needs to be deconstructed, then rebuilt under independent, civilian control and oversight–neither Congress nor Executive need be involved…except to provide adequate funding.

Rik
Rik
1 year ago

They also got “smacked” down by suiing that Christian baker in I believe Seattle who refused “baking” a wedding cake for a Lesbian couple because of her Christian beliefs and WON!

Philip Hammersley
Philip Hammersley
1 year ago

Like all CRIMINALS, DOJ will keep going until someone stops them! This is all about harassment and forcing people to bankrupt themselves through hiring lawyers!

Karole Fedrick
Karole Fedrick
1 year ago

The Alabama bill does not ban puberty blockers, hormone therapy, and surgery “to alter the biological sex of a minor,” because it is IMPOSSIBLE to alter biological sex. The bill bans drugs/surgeries that would alter the gender identity of a minor. There is a HUGE difference. XX or XY are in every human cell with a nucleus. No amount of drugs or surgeries have the ability to alter biological sex. Please, please get the language right.

David
David
1 year ago

Garland has be the first to be impeached IF (I still believe the dems can pull off another cheat) Republicans take over the House.

GTPatriot
GTPatriot
1 year ago

IF…..IF….IF the Repubs gain the house and/or senate this year, hopefully they will not hand the con over to a Rhino like Paul Ryan as they did in 2016. Its common for the repubs to obtain authority and then blow it. Rhinos are lurking everywhere somewhat like land mines. If the repubs can figure our how to do it right, I hope they subpoena and super-grill at extreme heat at least
10 management personnel of FBI and DOJ. The problem with hearings is that there is never
a real “whammy” meaning someone resigns or is jailed. Hearings are typically hot air with no result. I don’t want a hearing. I want a hanging.

Amelia Little
Amelia Little
1 year ago

Good job by Judge Burke. This is the kind of thing that should happen with all the subpoenas by the DOJ/FBI, etc. Too bad there wasn’t hearings on the raids they made on any associate of President Trump and all other conservative organizations. The FBI/DOJ have gotten way too big for their britches and overstep their boundries more and more.

Art
Art
1 year ago

DOJ- Department of Jackbutts. Much better term than the new Gestapo. Lead by the King of Bitterness. He is still trying to work through his issues because of his turn down for the SCOTUS. Just an afterthought. How badly do these DOJ lawyers need a job and what are they paid to manufacture this garbage?????

Michael Quinn
Michael Quinn
1 year ago

I’m still waiting for the “massive, capricious subpoena” for the DOJ to be issued to BLM, Antifa, and the Southern Poverty Law Center. I will not be holding my breath.

David Block
David Block
1 year ago

Finally hear of a judge with true guts. Thank you

Bold
Bold
1 year ago

File a grievance against the DOJ lawyers who touched this. Go after their law licenses. Assess costs against them and the DOJ.

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