House Judiciary June 30th hearing RE Secret Subpoenas - We should have a fulsome conversation about this because it’s bad and really important

If we are truly a nation of laws, with a free and open press and hold our constitutional rights to the first amendment then no administration should use the secret subpoenas as an end run

For background and no I’m not going to regurgitate previous thoughts, opinions and sets of facts previously presented. Notwithstanding if you haven’t read;

• History will prove Bill Barr was Donald Trump’s most dangerous enabler. -updated

• June 30th save the date - House Judiciary coming in hot - like super hot
  
  

Then might I suggest you take a few moments and read both articles — because each of these articles —I took the time to procure the relevant DOJ & FBI guidelines (cough S-I-M-s) documents. I then redlined the important parts and then provided you with various congressional communiques. In the end if you read those two articles it will help you to fully understand what we are going to discuss in this follow up article —it might be a few follow up articles, but for now it’s limited to this one. And the goal is to help you navigate and understand the complexity in a simple less verbose way.

House Judiciary Hearing Witnesses

Ms. Eve Burton -Executive Vice President & Chief Legal Officer, Hearst Corporation. Written Testimony I found this portion interesting

Mr. Tom Burt  -Corporate Vice President, Customer Security & Trust, Microsoft Corporation. Written Testimony - this is by far one of the more interesting and salient as it relates to both 18 U.S.C §§2703, 2705(b)(d)

Their own government is secretly demanding users’ data, without their knowledge, from cloud service providers, exploiting a subsection of the 35-year-old Electronic Communications Privacy Act to prevent notifications of the demand to users by the cloud service providers. By doing so, the government has transformed decades-old criminal investigative techniques into secret surveillance operations— all without rigorous review by courts.

Mr. Jonathan Turley  J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School (full disclosure I intensely dislike Turkey mainly because of his ties to Avenatti and I don’t need to pontificate on my reasons) Written Testimony but I’m intellectually honest enough to say he makes numerous valid points and concrete arguments both pro/con for secret subpoenas. And yes in my industry reading other’s opinions is actually a best practice -provided that you are setting aside one’s personal animus

Ms. Lynn Oberlander Of Counsel, Ballard Spahr LLP - Written Testimony wait a minute are you telling me that I’m not the only one who read the DOJ and FBI Sensitive Investigative Matter(s) aka SIMs - Sheesh okie dokie - I’m going to remind you I gave you the FBI Vault Links on June 14, 2021 - slams head on desk

“The cloud didn’t exist when 18 U.S.C. §2703 was enacted”

18 U.S.C. §2703 - Stored Communications Act —this is what the Government uses to essentially force Google et al to hand over a massive amount of user information and this typically done via an administrative subpoena versus a court authorized warrant - it’s disgusting and one of the many reasons I was never a fan of Rod Rosenstein - back in the day he tried to steam roll one of my firm’s longtime clients. And that’s all I’m going to say on that matter

Let’s talk about 18 U.S.C. § 2705(b) Delayed Notice

Oh you’re not familiar with 18 U.S.C. § 2705(b) Delayed Notification this statute is colloquially known as a “gag order”

(b) PRECLUSION OF NOTICE TO SUBJECT OF GOV￾ERNMENTAL ACCESS

A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under sec￾tion 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order com￾manding a provider of electronic communica￾tions service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the ex￾istence of the warrant, subpoena, or court order.

The court shall enter such an order if it determines..

…that there is reason to believe that notifi￾cation of the existence of the warrant, subpoena, or court order will result in—

(1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evi￾dence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an inves￾tigation or unduly delaying a trial.

For Example in the recent case of: June 28, 2021

In Re: Certain Non Disclosure Orders Issued to Google LLC see ECF link

Stipulation and Order https://ecf.ded.uscourts.gov/doc1/04305263050

To be fair it’s obviously possible that there are legitimate predicates for this Gag Order. Please do not misconstrue this distinction. That of course if there is a sound predicate and/or probable cause that Gag Orders are the correct course of action.

WHEREAS, the Parties agree that certain NDOs should now, in light of current and particularized circumstances, be vacated in their entirety or modified in part to permit limited disclosure, as described below.

NOW THEREFORE, the Parties stipulate that the NDOs identified in Sealed Appendix -Section I below shall be vacated in their entirety immediately upon the Court's approval of this…

Again to be clear this Stipulation and Order might be proper and have the appropriate predicate. And it is highly likely it has nothing to do with the Trump Administration and DOJ targeted the Media and members of Congress. Meaning it is likely this is related to a criminal case…but it’s curious because again when I typed in 18 U.S.C. §2705(b) into LexisNexis this was the 2nd to the to[ hit in my query

Pursuant to the Stipulation of the Parties, and good cause appearing, the Court orders that the NDOs identified in the sealed appendix be vacated or modified as described in the Parties' stipulation above.

Trump Administration Secret Subpoenas

I need to be clear here -- I’m not a reporter and I’m not an attorney —I’m the one that attorneys turn to when they need to test their legal arguments or when they need rock solid research conducted in advance of formulating a legal argument/strategy. I also have a proven track record of providing my readers/followers with actual Court Documents and occasional snark.

I’ve never sought to monetize any of my Twitter or Blog related research. Nor have I sought any kind of notoriety or fame for simply making sure facts cut through the online “screaming goats” and those who traffic in disinformation and misinformation. Notwithstanding the precise moment that I agree to accept money (or compensation of any kind) that is the precise moment you as a reader/follower should become skeptical of my motives. Until such time that occurs I do not take my readers/followers trust for granted and strive to continually earning your trust.

But on this matter — it is serious and it is paramount that facts must reign supreme. Therefore all other prognosticators and/or theories must be held in abeyance —as to allow the facts to take center stage. Because of the nature of the “secret subpoenas” I am guided by the facts available via the public dockets —specifically court documents.

DOJ New York Times Gag Order

On June 8, 2021 filed DDC

New York Times Motion https://ecf.dcd.uscourts.gov/doc1/04518595566
As the Preliminary Statement articulates - there were multiple orders and based on this June 8, 2021 filing the New York Times still does not know the predicate for such a sweeping order.

Exhibit A - https://ecf.dcd.uscourts.gov/doc1/04518595567

EXHIBIT A - DDC Court’s “GAG ORDER”

Off the bat I’d like you to know what that bates header factually tells you -

• the black header *SEALED* that’s the original date a Magistrate Judge in Federal District Court in Washington DC - Date of January 5, 2021 is the date it was entered into the ECF. <—during Trump’s waning days of his presidency

• the blue font “Document 1-1” -that’s because this is an attachment to the main document -not to further confuse you but Exhibit A actually contains multiple exhibits

As you’ll note the Magistrate Judge signed the Order on December 30, 2020 at 9:53PM - DC local time

Six New York Times Reporters Targeted

Look at the itemization from Attachment A - it’s not just the New York Times email - no this was to Google for any “gmail” accounts, from January 14, 2017 thru April 30, 2017. The Government wanted IP addresses, local and long distance telephone “connection” records, temporary IP addresses, other applications such as Google drive, Google location services (Geofencing), Google Voice…

I have been in DC for over 3 decades and I’ve never seen such a broad request for information targeting journalists. This is a fact (not an opinion) the biggest leakers in the Trump White House; Steve Bannon, KellyAnne Conway, Mercedes Schlapp, Jared Kushner, Ivanka Trump and Donald Trump (yes you’re reading that correctly) but this is absolutely astonishing that the DOJ and a Magistrate Judge agreed

Again the questions should be - what did the Government tell the Magistrate Judge - did the DOJ invoke “grave danger” to our National Security… did the DOJ deviate from their SIMs guidelines?

MARCH 3, 2021 Gag Order Partially Lifted

The Magistrate Judge “allowed” Google to disclose to the New York Times Deputy General Counsel, Mr David McCraw about the existence of the Jan6th 5, 2021 Gag Order but Mr McCraw was not allowed to tell the six New York Times Reporters that the Government sought (and likely received) a vast trove of their “personal” Google account information.

CNN’s DOD Reporter Barbara Starr Targeted

Notably - note the Federal District Court - EDVA-Alexandra which actually makes sense because this District has both the Pentagon and the CIA located within its jurisdiction - I assume like many of you that at least two federal district courts were involved - this November (and July) 2020 motions were under seal until June 10, 2021 when Judge Trenga Ordered the docket be unsealed

To be clear the June 2021 Order still leaves numerous filings under seal so the public only gets a portion of the docket and that’s frustrating because the filings most of us want to see “the original motion by the Government” shall remain sealed

November 2020 CNN/Time Warner Objection

Via EDVA-ECF https://ecf.vaed.uscourts.gov/doc1/189110863974

“….order of July 15,2020,issued pursuant to 18 U.S.C.§ 2703(d). As a consequence ofthe October 26 Order—in which Judge Buchanan reversed her prior decision quashing the July 15 Order—Warner Media is required to produce to the government information concerning all emails that a veteran national security reporter working for CNN sent or received during a two-month period. That order captures more than 34,000 communications—including 26,000 communications wholly internal to CNN or Warner Media—during a period in which the reporter published more than 50 news stories on a broad array of topics…”

As a consequence of the government's refusal to tailor its request to information that is relevant and material to its investigation, the July15 Order reaches tens of thousands of records relating to news gathering and reporting activities that are not relevant otherwise to the government's investigation. Rather than abide by the requirements of § 2703(d) and the First Amendment, the government seeks to use the order as an opportunity to gather intelligence about the inner workings of a major news organizations.

January 27, 2021 Biden Admin withdraws

Look I am growing sick and tired of the QANON-for-the-Left speciously attacking the Biden Administration - FFS pull your heads out - because on January 27, 2021 the DOJ withdrew their request/subpoena

See EDVA-ECF link https://ecf.vaed.uscourts.gov/doc1/189011014260

Okay if you’ve made it this far in this article - here’s your reward - House Judiciary Secret Subpoenas Folder- which if I calculated correctly I think I might have saved you >$25.00 in pacer fees - I opted to publish this late tonight because tomorrow will be a full on crazy town reporting - over the course of tonight I’ll upload more court filings to that folder and documents addressed in this Article. Now in my best mom voice - go to bed early, eat a healthy breakfast and be ready for tomorrow xo Filey