Memo to United States Attorney’s offices across the nation: The AUSAs in the Southern District of New York, the one in Manhattan, think they’re better than you. They are the elite, the best, the smartest, the toughest. They will not be questioned. They will not Reason.
Since Ken White at Popehat revealed that libertarian website Reason received a subpoena for every bit of information they could conceivably offer about certain commenters, it’s come back to an AUSA in the Southern District of New York, a kid named Niketh Velamoor, who found his way to the office through the usual Harvard law, judicial clerkship, biglaw seat-warming, path.
Ken first did the lawyerly, and right, thing by calling Niketh before publishing the subpoena, lest he somehow impair a serious investigation that didn’t appear on the surface of the flamingly idiotic subpoena. It was the proper thing to do. Just because the investigation appears ridiculous on its surface doesn’t mean there isn’t something serious lurking beneath.
Did Niketh thank him for his concern in reaching out? Nope. Instead, he fed him some equivocal nonsense to create an innuendo of fear that he might be violating a court order by disclosing the subpoena.
AUSA Velamoor told me during our call on June 5, 2015 that he “believed” there was a gag order.
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.
The situation has since come to fruition, with the gag order rescinded, Nick Gillespie of Reason explaining in detail what happened now that he’s free to do so, replete with all the fear-mongering innuendo Niketh tried to pull on him and Reason’s attorney, Gayle Sproul, whom Niketh circumvented in his effort to use his office to bully Reason into compliance with his mad power.
Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was “coming close” to interfering with the grand jury investigation. The call ended abruptly.
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.
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?
It appears that Ken’s notification of Niketh came back to Reason in the form of yet more threats:
Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters’ constitutional rights and laying out the timeline of Reason’s notification to them. Velamoor told her that he now had “preliminary information” suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was “looking into it further.”
Oh my, the Niketh is “looking into it further.” A good American would certainly bend to his will, now that he had “preliminary information” that Reason violated the court order.
But the guys at Reason were not only good Americans, but people with the fortitude not to be scared by Niketh’s implicit threats. Before the gag order issued, they informed the commenters subject to the subpoena of its existence, and determined that if any of them wished to assert their First Amendment rights and fight, Reason would stand behind them.
As it turned out, the commenters chose not to fight, and Reason complied. Frankly, it’s unfortunate they did, but understandable. To fight a pointless and expensive battle, no matter how wrong and ridiculous the subpoena, sucks resources from other things. If the commenters didn’t care, then it was not the time for Reason to draw a line in the sand.
But all of this embarrassing effort, the innuendo of threats and criminality to cow the players into submission, comes back to a kid named Niketh. He may have been told by his supervisor to make this happen because the SDNY isn’t going to let angry comments on the internet pass when they have the ability to smack people around for their insolence. But how it was to happen, what words were to emit from the telephone, were left entirely to Niketh.
After writing about the subpoena, I got a completely anonymous tip that there was, in fact, a gag order. I sent it over to Ken, who later got a tip as well. I didn’t take mine seriously, as that’s the nature of anon tips; without knowing the source, and given that they sell keyboards to anyone, I can’t go out on a limb by relying on it.
But now that the information has come out, there remains one issue to address. The United States Attorney’s office for the Southern District of New York handles some very serious stuff, and has some of the smartest, toughest prosecutors I’ve ever fought with. They are every bit as good as they think they are. But Niketh Velamoor brought humiliation down on the office.
This was an exercise in ridiculousness, and Niketh’s contribution was to make his office look as petty, irresponsible, over-bearing and full of shit as any AUSA could possibly do. As Preet Bharara takes down the leaders in Albany for failing to give the public their honest services, he should spend a little time looking in his own backyard for how some of his assistants aren’t doing any better.