The Biden Justice Department just suffered a major loss in the gender ideology front in its War on Wrongthink. The little-discussed but significant defeat comes in the form of a federal judge’s order quashing a chilling subpoena into a conservative advocacy group, Eagle Forum of Alabama, that dared to take a position on transgenderism the DOJ can’t abide.
DOJ issued that subpoena under a case that is ground zero in the Biden administration’s jihad for “gender-affirming care.” As we’ve discussed, that “care” includes helping gender dysphoric children transition via puberty blockers and cross-sex hormones, up to surgically removing genitalia.
As President Biden said in a recent interview, he believes no state should have the right to prevent the mutilation of children. His Justice Department is prosecuting accordingly. In April, it joined others in suing Alabama over its Vulnerable Compassion and Protection Act (VCAP). VCAP, enacted in May, but halted thereafter due to the litigation, prohibits “gender-affirming care” for minors under penalty of felony. DOJ claims it violates the 14th Amendment’s Equal Protections Clause.
Eagle Forum had lobbied for the legislation. According to the DOJ, it might have been involved in drafting it.
So, in a move that would make the January 6 Committee blush, in August, as part of its discovery process, DOJ issued a subpoena commanding Eagle Forum—again, an advocacy group, whose work is constitutionally protected, and a *non-party to the case*—to produce eleven categories of documents covering five-and-a-half years’ worth of material.
The documents demanded included not just legislation drafts, but: all private communications with legislators or anyone else regarding VCAP; every note, meeting-minutes, letter…speech, presentation materials, research, polling…and documents pertaining to publicly-posted social media and webpages, etc.
Only two people could produce the requested documents—a process they alleged would be not only chilling, but complex and costly: Eagle Forum’s volunteer General Counsel, Margaret Clarke, and its sole full-time employee, Executive Director Becky Gerritson.
Clarke said that in 45 years advocating for legislation, neither Eagle Forum nor its affiliates had ever been subpoenaed over its work. “If this subpoena is enforced,” she wrote, “it will have an unprecedented chilling effect on historically protected Constitutional rights and legislative advocacy…”
She added in an affidavit that complying with the subpoena would require her to personally review thousands of documents, identify and segregate privileged ones, and redact them.
She called it “political harassment.” Gerritson came to national attention when she testified to the U.S. House in 2013 about the IRS’s abusive actions in allegedly targeting the Wetumpka Tea Party group she then led.
In an affidavit echoing Clarke, she wrote that the “harassment and retaliation” by subpoena “for simple communications with the public and…elected officials to carry out our lawful purpose” would “set a precedent that would stifle other citizens who want to exercise their constitutional right[s]…”
Amid Eagle Forum’s bid to quash the subpoena, and blowback from numerous organizations that filed amicus briefs on Eagle Forum’s behalf, the DOJ backed down. On October 7, it told the court it had “narrowed” its subpoena from 11 categories of documents to one: “any medical studies or literature referenced” in one section of VCAP.
In a subsequent hearing, the presiding federal Judge Liles Burke took the Assistant U.S. Attorney who signed off on the subpoena to task. He asked of him, “What changed between this subpoena that you filed in good faith today, when it appears you are asking for 1 percent of what you were originally asking?” The judge added that when he looked at the initial subpoena, he saw it as “vastly overbroad and unduly burdensome,” and wondered, “how in the world could what the Department of Justice is asking for possibly be relevant to this case and its outcome?”
After all, what does a group’s lobbying for legislation have to do with the constitutionality of the legislation? The AUSA hemmed and hawed, essentially arguing the government felt the heat from critics, and that it had expected Eagle Forum to bargain.
Judge Burke said that a DOJ in a future administration could well make the same intrusive, fishing expedition requests of leftist groups lobbying for legislation, like the Southern Poverty Law Center, or ACLU. “Is that where you think the Department of Justice thinks we need to go in this country?” the judge asked.
Days later, Judge Burke quashed the subpoena, citing the “Government’s own conduct,” and noting that its “eleventh-hour ‘narrowing’” showed its illegitimacy. The DOJ’s loss is a win for Eagle Forum, and America, but it suggests a level of politicization and weaponization we’ve covered repeatedly that renders the DOJ perhaps beyond repair.
If the next Congress and/or president don’t do something about it, we risk seeing the rule of law perish.