We have written before in praise of D.C. federal Judge Emmet G. Sullivan—the judge who named a special prosecutor to investigate the Department of Justice following its corrupted prosecution of former Alaska Senator Ted Stevens. Judge Sullivan also presides over the Freedom of Information Act lawsuit by Judicial Watch. Thanks to his continued questioning—and refusal to accept the blanket denials of the Department of Justice—Judicial Watch continues to uncover the shenanigans of the IRS and Lois Lerner’s lynch squad, along with the IRS’s destruction of evidence that could link the White House to the political targeting of non-profit organizations.
Judge Sullivan has now struck another blow for fairness. He issued a bold decision reining in overreaching prosecutors and truncating their tactical abuse of a rule that allows them to have witnesses bring documents to a trial. The judge called a halt to the Department of Justice’s longstanding practice of “inviting” compliance with trial court subpoenas by the pre-trial delivery of documents directly to the prosecutor. Rule 17 of the Federal Rules of Criminal Procedure requires that the documents be brought to court.
Why does this make a difference?
A Rule 17 subpoena is issued under the seal and authority of the court. Most everyone, in the face of a subpoena on behalf of the government, wants to be done with it as soon as possible. The opportunity to comply without taking the documents to court itself if far more than an invitation. It is a strong message that it is what the Department of Justice expects. Compliance informally outside of court is quicker and less hassle. Despite the fact the subpoena is issued through the clerk of the federal court, the defense doesn’t know it’s been issued immediately.
If the person receiving the subpoena immediately accepts the government’s “invitation” and takes the documents directly to the government,” the government adds yet another pre-trial missile to its already loaded silos. There could be evidence in those documents to which the defense is entitled because it is favorable to its case. At the same time, the defense doesn’t even know the documents have been given to the government. The government has a triple advantage: additional time, sole access, and complete control. The rule is not intended to the give the government additional pretrial discovery or an out-of-court advantage.
Judge Sullivan “gets it” and his opinion, issued on Friday, begins with a bang: “The government’s power when prosecuting a criminal case is not infinite. Nor does it extend to any power not specifically forbidden by law.” Comparing the government’s baseless arguments to the conduct of a “grade-schooler seeking to avoid detention,” Judge Sullivan held: “The government in this case has overstepped Rule 17.”
Judge Sullivan noted that the “government claims to have a longstanding practice of ‘inviting’ subpoenaed parties to make a pretrial production to it directly, but cannot articulate the legal basis for doing so.” The government claimed it was entitled to receive documents immediately under these subpoenas because “nothing in law prohibits” the government from doing so.
But Judge Sullivan read the Rule, and he is holding the government to it.
“Rule 17 does not authorize pretrial production without court approval. The government’s inability to provide legal support for its actions is telling: there is no support.” The judge recognized the “independent duty” of the court to review the propriety of subpoenas issued under its seal and subject to its sanctions. While the rule gives the court the ability to require production of documents “in court before trial,” it does not give that authority to the government.
The “subpoenas were just a fishing expedition” for additional evidence, and Judge Sullivan just cut the prosecutors’ line.
We are encouraged each time a member of our independent and equal third branch of government, empowered by Article III of our Constitution, protects the rights of the individual against the abuses of our government—as our Framers intended. It’s called the Rule of Law.
