Manuals, guidelines, and laws give U.S. Attorney Preet Bharara discretion over the prosecution of activists.
The same Federal prosecutor, who has acknowledged a public role in fighting for Government reform, will wield greater authority to prosecute activists in the Trump protest era.
Progress Queens files notice to appeal a ruling denying the release of records from, and sanctions against, DOJ.
The ruling capped litigation in U.S. District Court in Brooklyn over a FOIA Request seeking records about the Government's prosecution of activists.
By LOUIS FLORES
As New Yorkers increasingly protest against the regressive policies, such as the Muslim travel ban, of the administration of President Donald Trump, citizen activities, such as participating in political demonstrations, may become a subject of interest to Federal prosecutors, according to research collected by Progress Queens.
The interest of Federal prosecutors in the protest activities of activists is sourced in Federal manuals applicable to U.S. Attorneys, including in some provisions in the United States Attorneys' Manual and the 2008 Attorney General's Guidelines for the Federal Bureau of Investigation's Domestic Operations.
In New York, the Federal prosecutors, who could assert jurisdiction over investigations of the peaceful and lawful protests of citizens, are U.S. Attorney Preet Bharara of Manhattan and U.S. Attorney Robert Capers of Brooklyn. For this report, the role of U.S. Attorney Bharara will serve as a focus due to his public campaign to fight corruption, including corruption in Government, and for his acknowledgement that the public has a role in fighting to reform Government. The information reviewed for this report was obtained, in part, from a lawsuit filed by the publisher of Progress Queens against the U.S. Department of Justice seeking records about the policies, procedures, and manuals applicable to the Government's prosecution of activists. Many questions remain unanswered, because the DOJ has refused to release records it has acknowledged to exist and that are highly likely to exist. Assistant U.S. Attorneys Rukhsanah Singh and Kathleen Mahoney in Brooklyn and Assistant U.S. Attorney Angela George in Washington, DC, opposed or thwarted efforts made by Progress Queens for the release of the requested records. Chief Magistrate Judge Roanne Mann and U.S. District Court Judge Joan Azrack ruled against Progress Queens in lower court proceedings that sought the release of the requested records. Progress Queens has filed a notice to appeal the Hon. Judge Azrack's ruling.
Nationally, the Federal investigation and prosecution of activists has taken place even though several elected and public officials have given lip service to the rights of activists, including such high-ranking officials as those, who set policy at the DOJ, including former President Barack Obama and former Attorneys General Eric Holder and Loretta Lynch. But the nominal words of these public officials are contradicted by information and records reviewed for this report.
The dissonance of public officials, who reportedly support a role for the public in determining matters of their own governance, on the one hand, but who also play a critical role in the implementing or supervising the prosecution of activists, on the other hand, can be no more vivid than in U.S. Attorney Bharara. The top Federal prosecutor for New York's southern district, U.S. Attorney Bharara has stated numerous times, including during an interview on a WNYC 93.9 FM radio talk show, that he can't use his office to prosecute his way into a better Government and that the public has a role to play in pressuring elected officials to be more accountable and responsive to the public. But U.S. Attorney Bharara and his office, the various Assistant U.S. Attorneys involved in Progress Queens' FOIA Lawsuit, and some Federal judges have refused to consider that they themselves are creating, in part, the conditions that enable an unresponsive Government that is headed by corrupt public officials.
Because New York is on the vanguard on activism for Government reform and accountability, community activists can organize demonstrations and social movements that can grow in scale and impact. When activists are targeted by the New York Police Department, there is an impression made amongst activists that the local police department is solely responsible for disrupting the citizen activities of activists. Sometimes, that is true, as when several individual NYPD officers disrupted a protest calling for a Wall Street transaction tax to pay for a single payer healthcare system outside a campaign fundraiser for former First Lady Hillary Rodham Clinton. Because the DOJ has sought to keep secret its agency law that governs the prosecution of activists, the public has been deprived of information and records about the policies and procedures that allow Federal law enforcement officials to delegate to local police departments the investigation of activists.
According to some provisions in the United States Attorneys' Manual, information-sharing from local police departments can roll-up to Federal law enforcement agencies. Sometimes, information-sharing can take place due to inter-agency arrangements ; according to information provided to Progress Queens by a spokesperson for the FBI, officers of the NYPD will share information with agents of the FBI for large gatherings of protesters, for purposes of situational awareness, and for issues of logistics that may impact the work of the FBI. This information sharing could include the sharing of protest permits applied for by activists if locations for protests may impact the FBI. Because the FBI is located in an office building situated off of Foley Square, large-scale demonstrations in the Civic Center of Manhattan may trigger FBI supervision, according to these parameters. A request made by Progress Queens to the NYPD for information about recent large-scale protests that have taken place in Foley Square against President Trump's Muslim travel ban were unanswered, further cloaking in secret possible inter-agency work that may be targeting or monitoring activists.(Whenever the FBI becomes involved, supervision by the U.S. Attorney's Office can get triggered under notification provisions, looping in the involvement of Federal prosecutors.) Other times, information sharing can move in a top-to-bottom direction, in other words, from Federal agents to local police department officers, due to procedures or manuals.
Increased Federal prosecutorial jurisdiction over New York activism
Because the First Family resides, at least part-time, in Manhattan, and because of the burgeoning protest movement against President Donald Trump, jurisdiction over protests that may be situated at or near Trump Tower may fall on Federal prosecutors. After then President Obama had been embarrassed by LGBT civil rights activists seeking to overturn the U.S. Armed Services discriminatory "Don't Ask, Don't Tell" policy, President Obama struck back at activists. In 2011, President Obama signed into law the Federal Restricted Buildings and Grounds Improvement Act. The law, in part, allowed activists to be prosecuted if they demonstrated in or near proximity to buildings or grounds were the President or any other Secret Service-protected Government official was visiting. Under that law, any demonstrations at or within proximity of Trump Tower now fall under U.S. Attorney Bharara's jurisdiction. News that the U.S. Department of Defense was considering becoming a tenant in Trump Tower served to notify the public that Federal officials would likely increase their jurisdiction over activities at or near Trump Tower.
Some information about how activists are being becoming the targets of law enforcement surveillance will be emerging from litigation over the release of records under the State's Freedom of Information Law. One such lawsuit, by a group of activists, has succeeded in the issuance of a Court order compelling the release of records from the NYPD about surveillance of Black Lives Matter activists. In the State Court case about Black Lives Matter activists, the Hon. Judge Manuel Mendez ruled that the NYPD must release records that the NYPD have acknowledged to exist, some of which the NYPD had claimed were exempt. The admission of the existence of records, including records that were claimed to be exempt, followed an initial FOIL Response made by the NYPD that no responsive records existed, according to the Order. (Meanwhile, in the unrelated Federal litigation over records requested under the Freedom of Information Act, the judges in the Brooklyn Federal FOIA Lawsuit ruled that the DOJ was not obligated to comply with FOIA and, thus, there was no material release of records being sought, including records that were admitted by the DOJ to exist, besides a partial release of records made at the discretion of the DOJ.)
The stark contrast in jurisprudence between the State Court and Brooklyn Federal Court may reflect differences in legal sensitivity about the roles of local and Federal law enforcement agencies in the investigation or prosecution of activists. Because of restrictions that have varied over time on Federal law enforcement agencies on each of the monitoring of protected activities of activists and the targeting of activists for their ideology, some of the prohibited policing and prosecutorial work being done against activists may be being delegated from Federal agencies to local police departments. Even if actual policing duties are delegated from one restricted agency to an unrestricted agency, information sharing also between law enforcement agencies can overcome investigative restrictions. Information sharing can take place when officers from various agencies serve on inter-agency task forces or in multiple agency roles, according to information obtained by Progress Queens.
Despite restrictions or regulations on some of the types of investigative activities undertaken by Federal law enforcement agents, those restrictions or regulations may not exist for local police departments. During various times, there have been First Amendment considerations applicable to FBI agents conducting investigations of activists. It is not known if there are any First Amendment considerations applicable to Federal prosecutors. Because of the silence emanating from the office of U.S. Attorney Bharara, he may wield unlimited discretion over the prosecution of activists, as shown by the issuance of a Grand Jury subpoena for records of comments posted on Reason.com. The uneven application of First Amendment considerations may lead to legal arbitrage between law enforcement agencies, wherein the agencies with the fewest restrictions conduct investigations of activists. Such a system is ripe for abuse, some Government reform activists have told Progress Queens.
Even with some restrictions on the NYPD's authorities to investigate activists imposed by the Handschu agreement, other local police departments, which are not subject to such restrictions, may have more discretion to violate the First Amendment rights of activists to assemble, to freely associate, and to engage in speech about Government reform. The Handschu agreement is a consent decree entered in a continuing State Court case that regulates, in part, some of the NYPD's discretion to monitor and investigate the political activities of citizens.
Activist Keegan Stephan told Progress Queens that, "Local police can get away with it more," he said, referring to violations of First Amendment rights, adding that if a law enforcement agency should not be collecting information about citizens' peaceful protest activities, then "they shouldn't be collecting it" via information-sharing arrangements with other law enforcement agencies, either.
In the last year, numerous requests were made to the press office of U.S. Attorney Bharara, asking questions about the process by which activists would get prosecuted for peaceful activism. All those requests for information or interviews were either ignored or denied. In 2015, U.S. Attorney Bharara sought to investigate, with the possibility of prosecution, citizens who posted troll-like comments about a U.S. District Court judge on the Reason.com Web site. The actions by the office of U.S. Attorney Bharara, which included issuing a Grand Jury subpoena for records about the activists, were denounced by defenders of the First Amendment, including by the Editorial Board of The New York Post.
Surveillance of activists can only take place if law enforcement investigators establish a predicate to believe that there may be criminality or a danger to the public, revealing the possibility of an institutional bias against citizens seeking civic engagement.
Despite concerns that Federal law enforcement agents went public in 2010 with a reported terrorism investigation of Midwest peace activists solely based on their ideology, Federal law enforcement agents have appeared undeterred by controversy over investigating activists solely based on their activism. This month, Federal law enforcement agents went public with another reported terrorism investigation of activists, this time of those opposing the Dakota access pipeline, according to a report published by The Guardian.
At times, press reports mention the role of prosecutors when activists become targeted for prosecution. According to statistics published by The New York Times, the office of District Attorney Cyrus Vance, Jr. (D-Manhattan) prosecuted approximately 600 of the 2,600 activists, who were arrested during the Occupy Wall Street demonstrations. Other times, the role of specific prosecutors goes unmentioned. In The Guardian's report about the reported investigation of the Dakota access pipeline opponents, the report invoked the ongoing threat of the prosecution of activists, but the report failed to name acting U.S. Attorney Christopher Myers, the top Federal for North Dakota, as having jurisdiction and discretion to possibly prosecute the anti-pipeline activists.
One central challenge facing citizens, who engage in peaceful protest activities, is that Federal law enforcement agencies view their job as "sorting out" protected activities of activists from other activities, which Federal law enforcement officials fear will lead to violence or social disruption. There appears to be an institutional bias against popular activism, particularly when the philosophy of activism, such as that which underpins the work of the MAP Model for social movement planning by Bill Moyer, may call for activism to form large-scale social movements to press the Government for reform and accountability. Social movements -- the very vehicle that has led to breakthroughs in civil rights, equality, and Government accountability -- are viewed with suspicion by Federal law enforcement agents.
The irony is not lost on some Government reform activists that U.S. Attorney Bharara, who may have had an unreported role in monitoring or delegating the prosecution of Occupy Wall Street activists, is himself a self-professed advocate for Government reform and accountability ; yet, at the same time, he publicly professes that he is counting on the public to play a role in holding public officials accountable.
Since the near-recent Government's prosecution of each of Lt. Daniel Choi, a key LGBT activist most visibly responsible for escalating the necessary political pressure to overturn of the discriminatory "Don't Ask, Don't Tell" policy of the U.S. Armed Services, and the now-late Aaron Swartz, an advocate for open data on the Internet, activists have been concerned about the role of Federal prosecutors in targeting activists for prosecution. Despite these concerns, no mainline civil rights group has requested that U.S. Attorney Bharara publicly address this subject in the same way that some Government reform groups welcome U.S. Attorney Bharara to speak publicly about the work of his office to fight insider trading or corrupt elected officials. As it is, the office of U.S. Attorney Bharara has fought efforts made by Progress Queens to release records about some of his speeches, possibly indicating a bias against transparency.
If there are no First Amendment considerations for prosecutors overseeing investigations of activists, then prosecutors may therefore believe that police officers violate no First Amendment rights of activists when police thwart activists.
If law enforcement agencies and prosecutors have no First Amendment considerations in the investigation and prosecution of activists, a corollary to this circumstance is that police officers, who thwart activists, are not guilty of violating activists' First Amendment rights. When activists have complained to police oversight agencies in New York about alleged misconduct of NYPD officers, police oversight agencies have routinely found that police officers were not guilty of violating the rights of activists to freely assembly and to engage in speech about the function of their Government. During the Occupy Wall Street protests in New York City, the office of District Attorney Vance declined to bring criminal charges against Deputy Inspectors Anthony Bologna and Johnny Cardona for notable misconduct in their interactions with activists. When the publisher of Progress Queens filed a complaint with the Civilian Complaint Review Board against NYPD officers for interrupting a protest outside a fundraiser for former First Lady Clinton, the executive director of the agency issued a notification that no wrong-doing could be proven, despite the existence of video evidence.
The lack of a legal framework to protect citizens engaging in activism or participating in a social movement to effect reforms of Government contradicts not only some of the guidelines applicable to Federal law enforcement agents but also statements made by U.S. Attorney Bharara. As prosecutors press Federal criminal charges against activists in the Trump era, including for engaging in protests, which largely took place peacefully around Inauguration week-end, Government reform activists are worried that Federal prosecutors, who are nominally tasked with being just in the enforcement of the law, will propagate a discriminatory view of activists.
Speaking generally of the peaceful work of activists, who are only seeking a method of participation in Government, Mr. Stephan said of the absence of information about the targeted prosecution of activists : "We can't pretend that it doesn't exist. Protesters are being criminalized."
- 2017-02-06 Order (NYPD FOIL Lawsuit) [Scribd]
- 2017-02-10 Notice Of Appeal (Flores v DOJ) [Archive.org]
- 2017-01-18 Joan Azrack Order (Flores v DOJ) [Archive.org]