At long last, it appears some prosecutors will no longer be putting BS gag orders on their subpoenas. Eastern District of New York judge Raymond J. Dearie has expressed his displeasure with the language found on nearly all subpoenas issued by the Brooklyn, New York US Attorney’s Office.
With the exception of National Security Letters, recipients of subpoenas are free to inform the targets of the documents as well as discuss them publicly. (The exception is financial institutions served in grand jury investigations related to fraud or drug trafficking.) But that doesn’t stop prosecutors and investigators from adding misleading statements to their subpoenas. They can only ask recipients not to disclose anything. They can’t demand it. That’s called “prior restraint” — something the government should be taking great care to avoid. But some still make it appear as though the recipient has no choice but to comply and shut up.
As was covered here earlier, Reason’s website received a subpoena for information on its commenters. Included with the subpoena was a request that Reason not talk about it. Reason’s attorneys understood it was only a request and went ahead and informed the commenters targeted by it. Most recipients won’t do this because prosecutors either utilize deliberately vague wording (making it seem more like a demand than a request) or verbally suggest any disclosure could result in criminal charges for the recipient.
The latter tacic was deployed in the Reason case. When it informed the US Attorney’s office that it would be making the subpoena public, AUSA Niketh Velamoor suggested the site was “coming close” to “interfering with a grand jury investigation.”
Judge Dearie has gone after the US Attorney’s Office in Brooklyn for basically doing the same thing. A subpoena related to a cocaine smuggling investigation issued to a law office contained the following words:
You are hereby directed not to disclose the existence of this subpoena, as it may impede an ongoing investigation.
No subtlety there. This is an order — and an illegal one at that. The battle over that phrase resulted in the discovery of widespread abuse by the prosecutor’s office.
The Gigliotti case suggests that this was not the first time that prosecutors in the Eastern District of New York made such a demand. “Policy was violated multiple times here,” Judge Raymond J. Dearie wrote last week in a ruling, “and it is apparent that such violations are not isolated to this case.”
The lawyers challenging the wording called it “blatantly improper.” The judge called it a “violation.” The office issuing the bogus wording called it something else: “inadvertent.” (It agreed it was “improper,” but refused to take responsibility for crafting the words it crafted.)
Prosecutors said they will fix this going forward, although they were vague enough on details that Dearie had more harsh words for them.
In a decision last week, Judge Dearie called the government’s response “disappointing” and “glib,” saying prosecutors did not outline the scope of the problem or how they would address it.
‘”Now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies,” Judge Dearie wrote.
“The government proceeds at its peril.”
Most likely, the prosecutors will continue to issue verbiage that strongly suggests recipients keep their mouths shut. They’re apparently going to put this wording on a separate piece of paper (rather than on the subpoena itself) from now on, as if that somehow changes the implicit severity of the misleading language.
While it is good to see the office called out for its bogus demands, little will change if it can regularly rely on the ignorance of subpoena recipients to maintain the secrecy it can’t actually demand. The more foreboding the wording sounds, the more likely it is that these “requests” will be complied with. The most honest solution would be to remove the wording entirely, unless nondisclosure is stipulated by statute.