For anyone who has never had the joy of reading a warrant application, it consists of many pages of squiggly lines, most of which appear in every application. It’s called boilerplate, the words, sentences, paragraphs, the citations, parentheticals and footnotes, that someone crafted to meet the statutory language and saved on a computer deep in the bowels of the United States Attorneys office. Whenever a new warrant is sought, someone presses the “paste” key and, boom, there ya go.
If you’re a Magistrate Judge, this pathetic excuse to kill trees ends up on your bench, day after day, as if you would actually read it. As if it might say something that wasn’t said in every warrant application ever placed on your desk. If it wasn’t fascinating the first ten times, it surely wasn’t fascinating the last thousand. And you thought the job of mag was all fun and games?
But Eastern District of New York Magistrate Judge James Orenstein got tired of flipping through the first 24 pages of the application in search of the three lines of actual substantive content, only to find nothing there.
In my role as the Duty Magistrate Judge for May 10, 2016, see Rules for the Division of Business among District Judges for the Eastern District of New York 50.S(b), I have received fifteen separate applications, each with one of the two captions set forth above, each submitted in hard copy by hand but not yet filed on the court’s docket, and each seeking an order pursuant to 18 U.S.C. § 2705(b) commanding the recipient of a subpoena not to disclose the subpoena’s existence to any person. In each case, the application relies on a boilerplate recitation of need that includes no particularized information about the underlying criminal investigation. For the reasons set forth below, I now deny each application without prejudice to renewal upon a more particularized showing of need sufficient to support a finding that disclosure of the existence of a given subpoena will result in any of the harms that the pertinent statute lists as a basis for such a restraint.
The applications required the recipient, in these cases internet companies like Facebook, not to reveal to the targets of the warrant that the government was nabbing their info. The justification for concealment was statutory.
The court shall enter such an order if it determines that there is reason to believe that notification 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 evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
18 U.S.C. § 2705(b) (emphasis added).
Makes sense, right? So write it up, track the statutory language, throw it in the pile and get it signed. Work, work, work. Except for one detail.
[T]he sole fact that the government posits in each case in support of a non-disclosure order is that the pertinent subpoena “relates to an ongoing criminal investigation that is neither public nor known to all of the targets of the investigation[.]” From this premise, the government concludes that the subpoena’s “disclosure may alert the targets to the ongoing investigation.” (emphasis added). Having thus sought to demonstrate the possibility of tipping off a target to the existence of an investigation, the government then reasons that disclosure of the subpoena therefore “will seriously jeopardize the investigation, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, and/ or change patterns of behavior.” (emphasis added). Moreover, the government notes that “[s]ome of the evidence in this investigation is stored electronically.” As a result, the government concludes, “[i]f alerted to the existence of the subpoena, the subjects under investigation could destroy that evidence.” (emphasis added). I respectfully disagree with the government’s reasoning. (Citations omitted.)
In other words, it was all rhetorical without a single fact, specific to anything in any of the cases in which the government sought a non-disclosure order, to show why, in that particular case, non-disclosure was needed.
The significance of Judge Orenstein’s refusal to go along with the usual is, to be blunt, radical. Regularity is what makes the system work. Repeating the same empty words and phrases allowed the wheels to keep grinding. Oh sure, when you’re the defendant, it’s all about you, but to the system, it’s hundreds, thousands, millions of pages of paper that are required because of the need to keep up the pretense that prosecutors and courts comply with laws that protect us and safeguard our constitutional rights.
Do you have any idea how much effort would be required to actually write papers particularized for every case, every investigation? If the government was required to provide facts, specific to the case it was working on, every time they needed a judge to sign off on a warrant, the system would collapse and the prosecutors would never make it to happy hour on time. It would be a disaster.
Yet, Magistrate Judge Orenstein did the unthinkable. He did his job.
The Magistrate’s Revolt, the refusal of the first tier of judges who are expected to close their eyes and sign anything a prosecutor puts in front of them, mindlessly, thoughtlessly, in conflict with what they know to be the law but under pain of being smacked by a district judge for their exercise of integrity, responsibility, intelligence and fidelity to the Constitution and the law, lives in Brooklyn. Magistrate Judge James Orenstein refused to sign his name to boilerplate. He did what a judge is supposed to do.