Some genius in Bronx District Attorney Rob Johnson’s office decided to try to play the subpoena game. No, not the dreaded “office subpoena” this time, but a subpoena for the identity of an anonymous blogger who was posting about the close and loving relationship between the Bronx Republican and Democratic parties. Who knew there was a Bronx Republican Party? That must be one lonely office.
The subpoena was served on New York political blog Room Eight, and the subpoena had a little twist. It contained the statement
The only problem is that they can’t do that. There is no law that allows the DA to order anyone to conceal the existence of such a subpoena. And it certainly sounds like an order. The DA’s spokesman, Steven Reed, also claimed “not uncommon for subpoenas to include nondisclosure language in order to protect an investigation.” Nowhere do the words “pretty please” appear. So he’s saying they break the law regularly?
To its enormous credit, Room Eight fought the subpoena and, as reported in the New York Times, Johnson’s office decided to “withdraw” it, which is code for ran away with its tail between its legs after it got caught abusing its power. Again.
The New York Times reports this evening that a spokesman for the District Attorney – over whose name the original subpoena, dated last October, went out – says Johnson was “not aware that a subpoena was sent nor was he aware of the content of the comments, until after the subpoena was sent. The district attorney reviewed the matter, determined that a subpoena was not necessary at this time, and directed that it be withdrawn.”
So, let’s add up the issues. Rob Johnson’s office abused its power. Issued a subpoena with an unlawful command. Rob Johnson knew nothing about it. And rather than admit his error, claimed that it was “not necessary,” suggesting that his office issues unnecessary subpoenas.
All in all, it really doesn’t make the Bronx District Attorney’s office look particularly professional.
And, just to provide some contextual background to the situation, Room Eight graciously thanks its pro bono counsel, “talented, dynamic lawyer at the Public Citizen Litigation Group, Paul Alan Levy, a national expert on online free speech” and “our smart, thorough, generous, and knowledgeable local counsel — Charlie Spada and Deepa Rajan.” But as noted, “not every blogger will be lucky enough to find pro bono counsel like ours, and few can afford to pay for lawyers.”
Any chance these factors may have emboldened the Bronx DA to try to play fast and loose here? Nah, they would never do that. After all, the District Attorney is the good guy.
H/T Orin Kerr at VC
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Dealing with public humiliation, or potential for public humiliation, is unfair and unjust. These individuals are paid by the citizens of New York to defend the law, not abuse it to flush out the person sending negative information about them.
I’ve been following this for over two years, and I think I can shed a little light.
The person known as the Republican Dissident is widely believed to be a former acquaintance of Jay Savino, the current Bronx GOP chairman and unsuccessful candidate for State Senate in 2006, and has a bitter grudge against him. You can read many of the comments in the DA’s subpoena, http://www.citizen.org/documents/finalsubpoena.pdf
In 2006, this person set up over a dozen blogs attacking Savino. They’re still up. Just Google “Jay Savino.” This person also made numerous, unproven charges of wrongdoing against Savino (and anyone who associates with him) on blogs run by the NY Press, the NY Observer, and the now-defunct Urban Elephants (UE), a NYC GOP blog. This person even attacked Savino’s family, including his dying father. The administrators of these sites often “zapped” this person’s posts and comments because he made unproven charges and personal attacks against anyone who challenged him. This person also frequently threatened to have people investigated because they associated or defended Savino on the blogs. The attacks against Savino and anyone who breathes on him continued long after the 2006 election, through 2007 and this year.
At UE, this person was caught engaging in “sock puppetry,” posting favorable comments to his own posts. He did the same thing at Room 8. (He also blogged with the names “Lefty Schwartz” and “Citizens for a Clean and Fair Government” at Room 8. These posts are still up. See http://www.r8ny.com/blog/citizens_for_a_clean_and_fair_government
and
http://www.r8ny.com/blog/lefty_schwartz
The Republican Dissident also obtained confidential documents such as driver’s records, mortage records, and tax records and posted them on Room 8. If someone accessed your personal records in order to publicly harrass and embarrass you, wouldn’t you like to know how the person got them?
Clearly, this person has engaged in cyber-stalking, cyber-bullying, harrassment, and unauthorized access of confidential records in order to get revenge against a former acquaintance.
If a former acquaintance did this you for over two years, even if you are a public figure, wouldn’t you go to the authorities?
Assuming everything you’ve written to be accurate, going to the authorities to seek aid is fine. But that doesn’t have anything to do with the use of the command in the subpoena not disclose its existence without a court order. It’s that part of the subpoena that’s addressed here, but whether the investigation was appropriate.
Notably, Rob Johnson walked away from the fight.
“it really doesn’t make the Bronx District Attorney’s office look particularly professional.”
Actually what it does is make the DA look unfit to hold public office.
As someone who is about to become a US citizen I have zero time for public officials who either don’t understand the Bill of Rights or don’t respect it. These are the rights that underpin America’s claim to be the home of freedom…
Actually, the Bronx DA is investigating death threats that Bronx GOP chairman Jay Savino and Dawn Sandow, a GOP operative working at the Bronx Board of Elections, have been receiving. See http://blogs.villagevoice.com/runninscared/archives/2008/07/bronx_gop_chair.php
The threats even mention their children.
Could the Bronx DA’s office have handled this better? Sure. But the idea that he is trying to silence dissdent, as the Room Eight administrators have alleged, is B.S.
(Also, Johnson has been Bronx DA for 21 years. He has often earned criticism like all elected officials. Has ever tried to use his office to silent dissent? No.)
Since the post had nothing to do with the reason for an investigation, but rather the DA’s scam in trying to keep force the blog to keep it secret, I can only attribute your comment to some misguided political soldier roaming the internet to salvage Savino’s bad press.
Don’t know. Don’t care. Do care when the subpoena contains an unlawful command to force a recipient’s silence. Odd that it happens in a case involving Bronx GOP chairman Jay Savino. This isn’t the first investigation of death threats in the Bronx, so that pig doesn’t fly.
When you and your family start getting death threats from some psycho out there who doesn’t like you for whatever reason, I’m sure you’ll view things differently.
And I’m sure that the Bronx DA won’t engage in unlawful conduct on my behalf, as I’m no political party boss.
Freebird,
I think you miss the point. Johnson’s office can issue subpoenas. He just should not stick a caveat in them that try to scare the receiver of the subpoena into seeing a lawyer about it or challenging it.
People have a right to say that they received a subpoena. D.A.’s have a right to issue them and try to keep their investigations secret. They do not have a right to misinform, or to cost people money fighting the subpoena if it is unwarranted. Hence he either mistated or tried to mislead the receiver of the subpoena or his office issued it without cause and should reimburse pro bono counsel the time he took to fight it.
Finally, as to your comments, I don’t know Mr. Savino well, I am sure he wants who ever is screwing with him, to stop and I think he has a legitmate right to be ticked off about the behavior. I am not sure if it is illegal but it may be. To that end, while I am sure Mr. Savino is appreciative of the efforts of the people in the District Attorney’s office to uncover any wrong doing, I sincerely doubt he would condone the morality of a public official misleading a member of the public he serves on Mr. Savino’s behalf.
As for me, I would not want to be Mr. Savino, but I for sure would not want a moral taint to a prosecution. it is better to live life as a free lion, than to live the life of a herded lamb.
Freedom and safety must be worked in tandem. Sacraficing Freedom for Safety is for sure the end of freedom, and not a guarantee of long term safety.