This week, U.S. District Court Judge Liles Burke quashed a subpoena that the Justice Department had issued to Eagle Forum of Alabama, which was one of the most oppressive and unconstitutional subpoenas that I had ever seen. The fight over this one subpoena may have been one of the biggest civil-rights cases of the year. Let me explain why and what would be at stake if the Justice Department had been allowed to get away with beating up Eagle Forum.
If you’re not familiar with the backstory, here it is. In May, the Alabama Legislature passed the Vulnerable Child Compassion and Protection Act (VCAP), which prohibits physicians from giving minors sex-altering surgeries, cross-sex hormones and puberty blockers. After the ACLU sued, Judge Burke blocked the parts of the law that prohibited the hormones and puberty blockers. The state appealed, and the Alabama Center for Law and Liberty filed a brief in its support.
Meanwhile, when Washington liberals heard that Alabamians decided to protect their kids from life-altering mutilation, they were even more triggered than Liz Cheney when she hears the word “Trump.” Just as never-Trumpers can’t leave the former president alone, neither could Joe Biden’s Justice Department leave Alabama’s conservatives alone for daring to defend our children. So, in a move that totally doesn’t resemble authoritarian secret-police tactics, the Justice Department hunted down the Alabama conservative group that lobbied for this bill—Eagle Forum of Alabama—and demanded to see its papers.
Which ones, you may ask? Basically, all of them! The Justice Department wanted “every email that has anything to do with VCAP, to a legislator, to the governor, to the lieutenant governor, to another lobbyist, to a third party,” as well as “social media posts,” “policy objectives,” “strategy,” “opinion data,” and “meeting notes.”
Translation: “You insolent people. How dare you talk to your representatives! What do you think this is, democracy or something?”
Just as if the SS or KGB showed up and demanded to search all your papers, the Justice Department’s request here wasn’t just about searching for information. It was about intimidation, not only to Eagle Forum but to anyone who was watching and dared to question the prevailing liberal orthodoxy. “These right-wingers were introducing a radical new idea that there are only two sexes!” (The fact that everyone and their mother believed that up until like five minutes ago appears to be irrelevant.) “This radical new idea must be crushed in its infancy,” they reasoned. So how do you do that? By using the full force of the federal government to harass small grassroots groups until they can’t take it anymore and back out of the fight.
Fortunately, conservatives were not content to back down. Word of the Justice Department’s oppression spread quickly to conservative allies across the state and the country. Overall, 53 conservative entities (including the Alabama Center for Law and Liberty) and distinguished persons joined an amicus brief, sounding the alarm that the Justice Department’s actions struck at the heart of the First Amendment’s guarantee of free speech. The Justice Department did not appear to be prepared for that level of pushback. It responded by dropping most of the subpoenas, but it tried to get away with keeping a limited class of requests. Fortunately, Judge Burke did not let them get away even with that, quashing the subpoena entirely. As the Heritage Foundation put it, the Justice Department got “smacked down.”
For those who have never been dragged into a lawsuit, the discovery process can be highly destructive if it’s abused. Discovery is designed to freely get information to the people who need it. But if unscrupulous lawyers want to take advantage of their power to gather information, they can truly put a person through a torture chamber as they try to comply with everything they’re asked to do. Our Fourth Amendment was designed to protect from such unreasonable searches, and our First Amendment was designed to protect the right of the people to speak freely without such harassment tactics in response.
The Justice Department is supposed to be a sheepdog that protects the sheep from wolves. But in this case, Biden’s Justice Department proved itself not to be a sheepdog but a wolf that will prey on the sheep without mercy. Fortunately, as the overwhelming show of support from our allies demonstrated, there are still sheepdogs that will fight the wolf on the day he comes.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
Don’t miss out! Subscribe to our newsletter and get our top stories every weekday morning.
