DOJ declaration : No First Amendment guidelines exist for the Federal prosecution of activists

By LOUIS FLORES

In a filing made with the U.S. District Court for New York's eastern district, the U.S. Department of Justice made the representation that, at least for purposes of the U.S. Attorney's Office for the District of Columbia, no guidelines exist that address the First Amendment issues when Federal prosecutors bring criminal charges against activists for their activism.

This representation was made by Daniel Van Horn, an Assistant U.S. Attorney, who identified himself as the chief of the Civil Division for the U.S Attorney's Office in the nation's capital. The representation was made in a declaration that was filed by the DOJ following the issuance of an order by the Hon. Chief Magistrate Judge Roanne Mann.

Throughout the litigation that was commenced in 2015 by the publisher of Progress Queens, the only time that the DOJ has produced any records that materially address the the request filed in 2013 under the Freedom of Information Act, or FOIA, has been as a result of orders issued by the Court. The Court order that produced the latest declaration came after the DOJ began dispositive motion practise in an effort to quickly shut down the FOIA litigation.

"I represent to the Court without reservation that there are no USAO-DC records, either in electronic or hard copy format, of guidelines, policies, procedures, and/or protocols concerning how the USAO-DC balances the First Amendment rights of activists when making charging decisions or undertaking prosecutions of activists arising from their participation in protests or demonstrations which involve acts of civil disobedience or violations of criminal laws," Mr. Van Horn wrote, in relevant part, adding that, "When First Amendment issues are presented in cases handled by the USAO-DC, those issues are addressed by applying applicable legal principals to the specific facts presented in the particular case or matter, not by application of a rigid, pre-determined policy."

Mr. Van Horn's declaration rests, in part, on information provided by Assistant U.S. Attorney Angela George, who prosecuted the Government's criminal case against Lt. Daniel Choi. In 2010, Lt. Choi participated with other activists in a demonstration outside the White House, targeting President Barack Obama, demanding that he support the repeal of the discriminatory "Don't Ask, Don't Tell" policy, or DADT, of the U.S. military against LGBT servicemembers.

Despite the non-violent nature of the protest participated by the activists outside the White House in furtherance of LGBT civil rights, the Government was resolute in prosecuting Lt. Choi for his activism, even after the U.S. Congress repealed DADT, and President Obama signed the repeal into law.

In exchanges of communication, including during telephone conferences, between the publisher of Progress Queens and counsel for the DOJ, and in Court filings made by the DOJ it was established that Ms. George had received a copy of the FOIA request at a time before the DOJ claimed that it had lost the file for the FOIA request. Yet, for unknown reasons, it was never established why Ms. George withheld the FOIA request from the DOJ.

It was also shown that Ms. George claimed that she did not have a manual with respect to the prosecution of activists, even though the DOJ produced sections from the U.S. Attorneys' Manual that provided guidelines for handling the prosecutions of individuals participating in demonstrations.

Despite questions about Ms. George's credibility, some of the representations made by Mr. Van Horn in the declaration relied on information provided by Ms. George.

"Protesters' actions were ... catalysts for change"

The declaration by Mr. Van Horn included a copy of a letter sent by U.S. Rep. Mark Pocan (D-WI) to then Attorney General Eric Holder, asking the DOJ to cease prosecuting former servicemembers for their activism to overturn the discriminatory DADT policy.

"Like those in the civil rights movement before, the protesters' actions brought attention to the issue and were catalysts for change," U.S. Rep. Pocan wrote, referring to the activism of servicemembers, such as Lt. Choi. The letter noted how the DOJ had ceased to defend the discriminatory Defense of Marriage Act, or DOMA, and U.S. Rep. Pocan asked the DOJ to apply the same principal of justice to the prosecution of activists, writing, in relevant part, "Similar to how you did not defend DOMA, I ask you to consider not prosecuting cases related to these DADT protests."

U.S. Rep. Pocan's letter was dated 27 March 2013, one day before the criminal trial against Lt. Choi resumed following an unsuccessful appeal. The DOJ waited until several months after Lt. Choi had been found guilty of criminal charges related to his activism before it replied to U.S. Rep. Pocan's letter, asserting that the DOJ "does not seek to prosecute any individuals for engaging in lawful protests," wrote Peter Kadzik, then the principal deputy assistant attorney general at the DOJ.

The Court has asked the publisher of Progress Queens to respond to the Mr. Van Horn's declaration.

In the FOIA litigation, the DOJ is represented by Assistant U.S. Attorney Rukhsanah Singh from the U.S. Attorney's Office for New York's eastern district.

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