Government Watch / Politics

The Justice Department Gets Smacked Down

Justice Department

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subpoena and declared that he “would have issued an order to quash” the subpoena if the Justice Department had not withdrawn almost all of it.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

Reprinted with Permission from - PJ Media by - Hans A. Von Spakovsky And Zack Smith

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3 months ago

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

David Block
3 months ago

Finally hear of a judge with true guts. Thank you

Michael Quinn
3 months 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.

3 months 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?????

Amelia Little
3 months 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.

3 months 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.

3 months 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.

Karole Fedrick
3 months 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.

Philip Hammersley
3 months 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!

3 months 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!

William C Smith
3 months 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.

Jon Kirsch
3 months ago

Just like anything the “government” funds, they will have a say in what happens within the recipient’s walls. for example, look at schools, colleges, universities and more. IF you do not follow their dictate, THEN you will lose your funding!

3 months ago

The President is *supposed* to be our civilian control. I’m curious, exactly how would this new civilian control work?

Oddly enough though, I agree with you, but on a much larger scale. A *lot* (almost all) of DC bureaucracy should be moved out from under the President and run as independent agencies with either nationally elected boards/governors or broken up into regional agencies with boards/governors appointed by the relevant State governments or elected regionally. I’m talking most of the 3 letter acronyms like FAA, FTC, SEC, EPA, FCC, etc. (Also, a lot of those agencies should be made shells that are responsible for merely coordinating efforts/communications between relevant State agencies, i.e. not be rule-making).

My argument for doing so is that one vote every four years between two people is simply not enough say for the American people to have in how such a major part of the government is run. The President should be elected primarily on two roles, Head of State and Commander-in-Chief. We should have separate votes for the people who will oversee various aspects of the economy, finances, environment, etc. The best way to protect ourselves from a bad President is to remove power from the office.

The cool thing is, we could do this today. All it takes is using the “compacts between the States” power granted to Congress in the Constitution — which doesn’t even require Presidential approval. Congress approves the compact, States sign on and Congress dissolves/restricts the Federal agency (unfortunately that part would require Presidential signature but the language authorizing the compact could make it clear that the new agency takes precedence over the old Federal agency).

3 months 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 !!!

John W Harries
3 months ago

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

Marcella Covault
3 months 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!

anna hubert
3 months ago

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

Phil Brown
3 months 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.

3 months ago
Reply to  Phil Brown

While pulling the trigger can happen quickly, the ground work for it has been being laid for decades. Biden couldn’t do this without a lot of what has happened in the last half century or even dating back to FDR. That is exactly what conservatives have been warning about all along, once the power is given and the structures put it place it can turn on you and be abused surprisingly quickly — that is why such power should have never been given in the first place.

Lisa Skinner
3 months 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

3 months ago
Reply to  Lisa Skinner

You are so right!

3 months ago
Reply to  Lisa Skinner

So very much agree, alas, let us not forget those others in the house, congress and the senate that should also be removed, tried and locked up for their tyrannical overreach has been strong signs of treason in the highest form, at least that I’ve ever known in my lifetime! God Bless America ❤️

3 months ago

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

Winston Hooker
3 months ago


3 months 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.

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