A U.S. district judge is deliberating on whether or not to enact sanctions against the Department of Justice (DOJ) on behalf of Eagle Forum of Alabama (EFA).
U.S. District Judge Liles Burke heard arguments on Wednesday regarding a motion by the EFA and the Southeast Law Institute (SLI) to sanction the DOJ for issuing an unlawful subpoena.
In September 2022, the DOJ demanded all information related to the non-profit's legislative activities promoting the Alabama Vulnerable Child Compassion and Protection Act (VCAP), which banned transgender hormones and surgeries for people under 19. Immediately after Gov. Kay Ivey signed VCAP, then-White House press secretary Jen Psaki threatened Alabama officials by saying they were being "put on notice" by the DOJ and the Department of Health and Human Services, vowing President Joe Biden would hold them accountable.
The DOJ's subpoena initially requested 11 broad categories of information pertaining to VCAP. The DOJ came back later and lowered the list to only five items. On Oct. 7, 2022, EFA's attorney reportedly received an email stating the DOJ was withdrawing the subpoena. Then, fewer than two hours later, EFA's attorney received a voicemail from a DOJ attorney saying the email was sent by mistake and they did want one item not listed on the original subpoena.
In October 2022, Burke officially quashed the DOJ's subpoena, saying the burden of the requested material "outweighs any slight relevance it may have." According to Burke, the requested information was unnecessary to determine the heart of the DOJ's case, that the VCAP is constitutional under the 14th Amendment.
EFA filed for sanctions in November 2022, claiming "the issuance of these subpoenas was in fact political harassment and that the Government's true intent in issuing these subpoenas was to try to intimidate EFA and other like-minded groups of citizens into silence and to stay out of the political process going forward."
Attorneys for EFA acknowledge the extent of the sanctions is up to the court. However, the proposed sanctions include compensation its personnel incurred in fighting the subpoena, attorney's fees and punitive sanctions for the "egregious nature of the Government's misconduct."
Attorneys for the federal government argued that, since they filed the subpoena in good faith without knowing the burden the subpoena would impose on EFA, saying there was "no evidence the U.S. had any untoward motives."
While the DOJ's attorneys do not dispute Burke quashing the subpoena, they did claim it fell "within the normal bounds of civil advocacy."
Furthermore, the DOJ argued the sanctions should be facially removed since it amended its initial request to remove any potential undue burden to EFA.
John Graham, the attorney speaking for EFA, said the U.S. government does "not get much credit" for lessening the demands in the subpoena due to the amount of time that elapsed between the original subpoena and the DOJ's amendment.
According to attorneys, Burke's decision could be released in a matter of days.
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