from the forget-the-subpoena dept
Over the past few days, a bunch of experts have started to weigh in on just how dangerous and scary the gag order is -- way beyond the original subpoena. As we noted in the original post about the gag order, it's quite clear that Velamoor had no legitimate reason for requesting a gag order, and that's supported by the fact that the eventual gag order -- approved by federal magistrate judge Frank Maas -- doesn't actually give a reason, but just lists out all of the possible reasons a gag order is allowed:
The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.Basically none of those make sense here. The actual application for the gag order filed by Velamoor has not been released -- though I've put in a FOIA request for it -- but it seems quite likely that no actual issue was raised -- but Maas gave the rubber stamp anyway. In response to all of this, there has been some really great analysis worth highlighting.
First up, Popehat teed off on this by highlighting how it appears that Velamoor was on something of a power trip just because he could get away with it:
Velamoor's conduct was threatening throughout — not threatening like a stalker or a foe, but threatening like a tired parent who wants obedience and gets angry with anything but quick compliance. The initial form letter accompanying the subpoena noted that while disclosing it was not forbidden, "disclosure of the existence of this investigation might interfere with and impede the investigation." What does it imply when a federal prosecutor tells you that?There's a lot more in Popehat's piece, which is worth reading (including one more point we'll make below). Next up we have Scott Greenfield who didn't mince words about Velamoor's actions pointing out that almost every move he made was clearly designed to intimidate. This starts with Velamoor telling Ken White (during his call to Velamoor) that he "believed" there was a gag order:
Most people interpret it to mean that, if the prosecutor decides you've disclosed it in some undefined way that thwarts his or her investigation, you may be the prosecutor's next target. That's certainly what Velamoor implied when he told me on the phone that he was going to "look into" how I got the subpoena, and what he strongly suggested to Reason's lawyer when he told her that Reason was "coming close" to interfering with a grand jury investigation by doing exactly what they were entitled to do and exactly what the letter said they could do. Later he told Reason that he had "preliminary information" that they had violated the order and that he was "looking into it," yet another threat. It was a threat premised on a lie, since Reason only sent the subpoena to the targeted commenters before the gag order was issued, and because Reason didn't send it to me.
It's easy to dismiss this kind of government intimidation when you're not its target. It's quite another thing to live it.
Nobody “believes” there is a gag order. There either is or isn’t, and if there was, there isn’t a chance in hell that Niketh wasn’t absolutely certain about it. There was no “he believed” involved. What this reflects is that he wanted to impart the scare of a gag order without revealing that there was a gag order. Because it didn’t apply to Popehat, and couldn’t prevent Ken from publishing the subpoena. Likely, Niketh didn’t want Ken to add a prior restraint on this silliness on top of the absurdity of the subpoena itself.Then there's the threat that Velamoor made to Reason itself upon finding out that Ken White had the subpoena, telling Reason that it was "coming close" to interfering with the investigation. Again, Greenfield points out how ridiculous that is.
See that “coming close” thing? That’s a test of fortitude, carefully taught in baby prosecutor school, that by hinting that someone may be, kinda, sorta, on the edge of committing a federal offense, it will scare the crap out of some cowardly lawyer and their fearful client, so as to obtain submission and obedience.Instapundit's Glenn Reynolds also stepped in to call this what it was: an attempt to chill free speech:
Do you want to court disaster? Do you want to become the target of a federal investigation yourself? Do you really want to take on the vast power of the United States of America by challenging the Niketh?
Bharara's office isn't talking, but I suspect that the purpose of this exercise is to chill speech: To send a signal that whether or not the First Amendment protects your right to talk smack about a federal judge, you'd be wise not to do so if you don't want to attract the attention of the feds, who might choose to share your information with employers or the news media. Consider it a sort of prosecutorial brush-back pitch, if you like.And, finally, we've got Paul Levy who compares the intimidation campaign to a similar situation involving Room Eight, a NY politics blog:
Of course, the First Amendment term for "brush-back pitch" is "chilling effect." The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That's an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.
As in the Room Eight case, the United States Attorney’s Office for the Southern District of New York brought both the office’s prosecutorial power and the normal complaisance of federal judges in its invocation to bear to try to block the disclosure of the existence of the subpoena. The AUSA moved not only to block general publication but more specifically by giving notice to the anonymous commenters so that they could, if they wished, retain counsel to seek to have the subpoena quashed on First Amendment grounds.Levy then points out that it would be useful to know what kind of guidelines the DOJ has for requesting such gag orders (I've FOIA'd that as well...).
Should we be content with the precedent set for free speech because passionate journalism succeeded in getting this gag order set aside? Or should we try to learn from this experience through a thorough investigation of the precise reasons why the US Attorney’s office believed that it was necessary to curb public disclosure of the grand jury subpoena. Does that office, or does the Justice Department generally, have any guidelines governing applications for gag orders of this sort? Are their any guidelines about the circumstances under which it is appropriate for AUSA’s to throw their weight around by threatening to investigate subpoena recipients for interfering with a criminal investigation (thus securing an informal gag order through intimidation)? Should there be such guidelines? If there are guidelines, did the AUSA in this case follow them (and does that mean that the guidelines need to be tightened)? This might well be an apt subject for investigation by a congressional government oversight committee or judiciary committee.There was one separate issue that both Levy and Ken White at Popehat called out -- which is that Velamoor not only played all these games, but he also reached out directly to Reason after Reason had its attorney contact him. This is... generally a big no no in legal settings. Despite already having spoken to Reason's lawyer, Velamoor sent Reason publisher Mike Alissi the following email:
As Paul Levy notes in his piece, this is questionable:
Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena. The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena. The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation.
I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.
Please forward the Order to the attorney and any other individuals who should be aware of it.
Niketh V. Velamoor
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007
the AUSA sent the gag order with a cover letter directly to Reason’s editor even though he knew that Reason was represented by counsel. Query whether this letter violated the ethical rules governing contact by counsel with a party represented by counsel – certainly to me this is typical of arrogance from a high-powered office, some of whose lawyers consider themselves so elite as to be less bound by the ethical rules that govern other lawyers...Ken White has more details on this noting that it is not technically a violation, because US Attorneys have separate rules they get to play by, but it's still rather shocking, and speaks to another example of an intimidation threat:
The whole thing speaks incredibly poorly to the US Attorney's Office in the Southern District of NY (probably the highest profile US Attorney's office). It's unlikely that anyone will actually do anything about this, but it seems like the sort of thing that (at the very least) Congress ought to be investigating.
Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.
Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.
If I did that, I'd be disciplined. If Gayle Sproul did it, she'd be disciplined. That's because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication. That prevents lawyers from tricking the clients of other lawyers into ignoring their counsel to their detriment. New York's Rule 4.2 of the Rules of Professional Conduct governing lawyers is standard:
In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.
So will Niketh Velamoor be disciplined for breaking this rule?
Don't be ridiculous.
Even if state bars reliably disciplined prosecutors for misconduct — and this never happens — prosecutors are protected by a special rule. Judges — judges just like Judge Frank Maas, who issued the gag order — have decided that prosecutors need the power to make end-runs around lawyers during the investigation phase of cases, and that this conduct is therefore "authorized by law." Courts have decided that it would be too burdensome to require federal prosecutors to abide by local ethical rules, rules that apply to literally every other lawyer in the United States, and too restrictive of law enforcement to prevent them from making such pre-indictment contacts as they see fit.