Sometimes, legal motions are so improper and constitutionally offensive that the lawyers deserve to suffer personal and professional consequences, along with any supervisors who approved them. Such is the case with a stunningly abusive subpoena issued by the Justice Department against a citizens’ group in Alabama.
Acting through Assistant U.S. Attorney Jason Cheek in Birmingham, the department demanded five years of documents from the Eagle Forum of Alabama which, get this, isn’t even a party to the case being litigated and whose documents have absolutely no bearing on the question at issue in the lawsuit.
It is bad enough that the subpoena, for no discernible legal reason, is demanding 67 months’ worth of voluminous records from a group with a single paid staffer, who has neither the means nor the time to comply. That alone makes the subpoena an act of harassment. What’s worse, the materials requested (all documents, communications, records, polling data, social-media postings, and speeches produced or considered by the Eagle Forum regarding a particular legislative issue) involve the group’s First Amendment speech, deliberative, and associational rights pursuant to citizens’ participation in the political process. In sum, the subpoena is a massive violation of the Eagle Forum’s constitutional rights.
Again, the Eagle Forum and its materials are in no legal way connected to the suit at hand. The suit, Eknes-Tucker v. Marshall, is a battle over the constitutionality of Alabama’s law banning puberty blockers, hormone therapy, and surgery to alter the biological sex of a minor child. The question of whether a law is constitutional has nothing to do with whether it is wise policy, nothing to do with whom its supporters and opponents are, and nothing to do with the reasonableness of the arguments or cleverness of the tactics its supporters used. The question is straightforward: Does the law, as written, violate the Constitution, as written?
To answer that question, the courts need only decide what the words of the law and the words of the Constitution mean and whether or not they conflict. Everything else is extraneous.
The Communist Party USA could hold illegal fundraisers for 10 years to convince Congress to make magenta the official national color, but the question of whether having a national color is constitutional would have nothing to do with who supported the effort or how they supported it. Not a single document from the Communist Party would be relevant to the question of the constitutionality of magenta, and so CPUSA would not be a proper target for a subpoena.
Likewise with the conservative Eagle Forum — except that nobody is even suggesting the Eagle Forum did anything legally wrong. The subpoena is the Biden administration’s way of punishing perfectly legal political activity through expensive legal harassment by a government with limitless resources. It also looks like someone’s opportunity to snoop through the private papers of a group they see as an adversary, all because Eagle Forum dared to act through the political process against the administration’s policy preferences.
On behalf of 53 organizations and individuals nationwide, famed constitutional lawyer Boyden Gray filed a “friend of the court” brief justly protesting the Justice Department’s subpoena. The brief called the government’s action a “transparent and flagrant violation of the First Amendment … with no legitimate purpose. … The government’s message is clear and unmistakable: exercise your rights and participate in the political process at your own peril.”
Voluminous court precedent supports Gray’s arguments, most prominently the 1958 NAACP v. Alabama decision in favor of the civil rights group. It’s not even a close call. The courts should impose sanctions against every Justice Department official who was involved in approving this abusive subpoena.
