As new personnel at the Department of Justice settle in, you have to wonder what kinds of debris they’re finding stashed in the sofa cushions, left over from the Trump administration.
One of these messes was uncovered this week when a court filing revealed the DOJ had used a grand jury subpoena in late November to seek subscriber records for a Twitter account that mocks Rep. Devin Nunes, R-Calif.
Twitter had challenged the subpoena on First Amendment grounds, and a recently unsealed motion included a copy of the subpoena as well as email correspondence with the prosecutor. It is not clear exactly what is going on here, but it smacks of potential criminalization of political speech and abuse of authority.
The subpoena indicates it was authorized by a prosecutor in the U.S. Attorney’s Office for the District of Columbia while it was being led by Michael Sherwin, who had been a close aide to then-Attorney General William Barr. The subpoena sought disclosure of subscriber records of the Twitter account @NunesAlt, a parody account that ridicules the California Republican and ally of former President Donald Trump.
When Twitter’s lawyers questioned the legal authority for the subpoena, the prosecutor said in an email that the investigation was based on potential violations of 18 U.S.C. Section 875(c), which is a federal statute that makes it a crime to communicate interstate threats to kidnap or harm the person of another.
The prosecutor declined to identify the threatening tweet. Twitter responded by filing a motion to quash the subpoena, noting its review of the account’s tweets revealed no threatening content but only posts relating to current events, government policies and Nunes himself. Current DOJ leadership withdrew the subpoena in the spring, according to The New York Times.
The motion filed by Twitter stated the subpoena may relate to Nunes’ “repeated efforts to unmask individuals behind parody accounts critical of him,” noting the congressman had unsuccessfully sued Twitter and appeared to have a pending lawsuit against the owners of mock accounts with names such as @DevinNunesMom and @DevinCow.
If these allegations are correct, this abuse should concern anyone who cares about civil liberties. The First Amendment protects speech critical of government officials, including speech made anonymously.
The government may restrict certain speech where the restriction is narrowly tailored to achieve a compelling government interest under a standard known as strict scrutiny. A subpoena issued in furtherance of a legitimate law enforcement purpose would meet this test. But if there is not a genuine law enforcement purpose for the subpoena, such as a bona fide threat investigation, then the grand jury subpoena seeking First Amendment-protected content fails the strict scrutiny test.
In addition to the subpoena itself, the prosecutor obtained a gag order directing the recipient to refrain from disclosing the existence of the subpoena — a fairly common occurrence when grand jury subpoenas are issued. Such orders also pose First Amendment concerns but can pass muster when they are narrowly tailored to serve the compelling government interest of protecting the secrecy of the investigation so the target does not destroy evidence, tamper with witnesses or flee.
But if the underlying subpoena is not issued in good faith, then there is no compelling government interest to justify the prior restraint of the gag order, either. This overreach would violate free speech rights. In a nation that values the right to speak out against government officials, such an abuse would be deeply concerning.
In addition to civil liberties concerns, this potential abuse of a grand jury subpoena creates an additional concern for prosecutors, who rely on subpoena power to conduct investigations into violations of criminal laws. Accusations of abuse could threaten their ability to use this important tool in the future even in legitimate cases.
Prosecutors use grand jury subpoenas to obtain witness testimony, documents and “other tangible things,” such as bank records, travel receipts and, sometimes, subscriber information for social media accounts. Unlike a search warrant, a grand jury subpoena requires no court finding of probable cause.
Instead, a prosecutor may issue a subpoena under the authority of a grand jury as long as there is any reasonable probability that it will produce information that is relevant to a matter under investigation. The prosecutor is accountable only to the grand jury, which is later notified of all subpoenas issued in its name and all items produced in response to them. A court becomes involved only if a recipient challenges the subpoena or if the investigation materializes into criminal charges.
When I was a federal prosecutor, I was instructed that this significant power to issue grand jury subpoenas and to seek gag orders came with the responsibility to use these tools with scrupulous restraint within the strict confines of the law. A prosecutor must ensure an investigation is properly predicated on factual allegations that could potentially constitute a federal offense.
Grand jury subpoenas are used to build cases against targets such as white-collar criminals, corrupt public officials and money-laundering drug kingpins. Sometimes, grand jury subpoenas are used to identify the subscribers to social media accounts that are used to make threats. In such cases, the prosecutor is made aware of the content of the threatening post, determines whether it meets the legal requirements of a true threat to harm the person of another, opens an investigation under the relevant statute and authorizes the subpoena.
It would be highly improper to issue a grand jury subpoena, as Twitter alleges here, to identify a subscriber for political purposes. And it would violate grand jury secrecy rules to share the subscriber’s name with others so he could be sued.
In addition to inflicting harm on the subscriber, this abuse could spark a backlash against the DOJ. Critics would use this example to argue the power of prosecutors to use grand jury subpoenas should be checked or curtailed.
Skepticism about the use of subpoena power could also force prosecutors in court battles to disclose facts to justify their conduct, possibly compromising investigations. The result could be a diminished ability to use this valuable tool to investigate serious violations of federal law.
Perhaps Twitter’s suspicions are unfounded and a factual predicate existed to issue the grand jury subpoena in this case, but there is a sufficient basis in the public domain for the DOJ’s Office of Professional Responsibility to investigate to determine whether misconduct occurred. If so, the DOJ should hold the offenders accountable to send a strong message to support civil liberties and emphasize the responsibilities that accompany the powers of the prosecutor.
The members of the new administration were able to act swiftly to withdraw the subpoena and clean up this mess before it could spread. But they must dread whatever else may be lurking under the rugs at the Department of Justice.