I seem to remember a time when the Justice Department of the United States was an organization that had earned a high reputation for respect of the citizenry and behaving within the law. It's amazing how fast these things can be lost.
Buried at page A17 of the print version of today's New York Times is an article by Stephanie Clifford headlined "Secrecy Orders By Prosecutors On Subpoenas Draw Criticism." The article reports on a recent decision by Judge Raymond Dearie of the Eastern District of New York in the case of United States v. Gigliotti, in which Dearie was highly critical of prosecutors for ignoring their constitutional obligations. I cannot find a publicly-available version of the opinion, so I will rely on the excerpts quoted in the Times.
It seems that the government was investigating the Gigliotti family for involvement in drug dealing or other illegal activities. On March 11, 2015, the prosecutors of the Eastern District of New York issued a subpoena seeking information from the Gigliottis' accounting firm, Zuccarello, Zerillo & Co. Here is a copy of the cover page of the subpoena. The cover page contains the following legend in all capital letters:
YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.
Now, where exactly do federal prosecutors come off throwing a line like that into their subpoenas? For those unaware, here is a brief summary of the law on this subject: Prosecutors and members of grand juries are sworn to secrecy as to their activities, but members of the public who receive a subpoena or are otherwise asked for information are under no duty of confidentiality, and have a First Amendment right to speak as they may see fit. The prosecutors may request citizens to keep quiet to assist the investigation, but that is only a request.
There's plenty of case law on this subject that makes it absolutely clear that the prosecutors do not have the right to direct citizens to remain silent about government investigations. In most parts of the criminal law, Congress has not purported to legislate on this subject. But then there is the area of so-called "National Security Letters," in which Congress by statute has purported not only to authorize the FBI, in cases involving "national security," to demand information from citizens, but also to compel the citizens to remain silent and not tell the subject or anyone else that the request has been received. Does that sound to you like it's OK under the First Amendment? The Second Circuit certainly didn't think so. In a 2008 case called Doe v. Mukasey, 549 F.3d 861, the Second Circuit ruled that the statutory provisions authorizing the FBI to compel such non-disclosure were unconstitutional, and that if a citizen who received a National Security Letter declined to keep it confidential, the burden would be on the government to obtain a court order requiring confidentiality, absent which the citizen would be free to speak.
So the Gigliotti subpoena did not by any means come against a blank slate. The prosecutors were completely aware that their "direction" to Zuccarello Zarillo was completely lawless, but they just went ahead and issued it anyway because they thought they could get away with it. What's the chance that some little accounting firm in Queens reads all the Second Circuit opinions and knows what their rights are?
Needless to say, Judge Dearie (by the way, himself a former U.S. Attorney for the Eastern District of New York -- during the Reagan administration) was not happy. According to the Times article, Judge Dearie in October instructed the prosecutors to "explain how and why the language was added to the subpoenas." But in response the prosecutors declined to set out "the scope of the problem or how they planned to address it," and instead merely said that the language was "inadvertent" and "improper." Well, I can tell you the scope of the problem. Take a look at the cover page of that subpoena. It's their form. In other words, they were putting this language on essentially all the subpoenas. There was nothing "inadvertent" about this. They were engaging in systemic intentionally lawless conduct, and now they have lied about it to a judge.
Oh, and who was the U.S. Attorney for the Eastern District of New York when this subpoena was issued back in March, and when this improper language somehow crept "inadvertently" into the Eastern District's subpoena form? That would be Loretta Lynch. A few weeks later, on April 23, she was confirmed as Attorney General of the United States. Her confirmation was somewhat controversial, for reasons that included her support for Obama's immigration enforcement regime (or lack thereof), but as far as I can find, the subject of her issuing unconstitutional gag orders to the citizenry did not come up.
And in other news about the "Justice" Department, we learn from the Washington Post on November 23 that so-called "civil forfeitures" to the federal government have exploded to the point that in 2014 they exceeded all losses from burglaries in the United States. Here is their chart:
Notice that as recently as 2008 (end of the Bush administration) asset forfeitures to the federal government were well under $2 billion annually, and only about a third as much as burglary losses. But somehow under Obama the asset forfeitures to the federal government have exploded to well over $5 billion per year. What's going on? Law enforcement has turned to predation upon the citizenry, with the poor and the marginal most at risk. From a Washington Post investigatory report in September 2014:
[A]n aggressive brand of policing [is spreading] that has spurred the seizure of hundreds of millions of dollars in cash from motorists and others not charged with crimes...Thousands of people have been forced to fight legal battles that can last more than a year to get their money back. Behind the rise in seizures is a little-known cottage industry of private police-training firms… A thriving subculture of road officers…now competes to see who can seize the most cash and contraband, describing their exploits in the network’s chat rooms and sharing “trophy shots” of money and drugs. Some police advocate highway interdiction as a way of raising revenue for cash-strapped municipalities.
That quote deals mostly with state and local law enforcement, but the explosion in the federal seizures shows that they are doing the same or very similar things. Here is a summary from the Institute of Justice on the scope of the problem. Or read my article from April 5 on how the feds systematically steal luxury cars from people who try to sell them to buyers in China.
I can't say that I expect much in the way of better behavior from Justice during the term of the current administration. The question is, will a new administration bring about any reform, or is the formerly respected "Justice" Department now corrupted beyond hope of recovery?