Can somebody explain to me what the hell is going on in Jacob Sullum’s latest post at Reason‘s Hit&Run blog? Here’s the background:
Last week Kansas physician Stephen Schneider and his wife, Linda, who worked as a nurse in his practice, were sentenced to 30 and 33 years, respectively, for painkiller prescriptions the Drug Enforcement Administration considered inappropriate.
Not everyone believed they were guilty, especially Siobhan Reynolds, founder of the Pain Relief Network (PRN), who tried to draw publicity to their plight. For that, Tanya Treadway, the assistant U.S. attorney who prosecuted the Schneiders, began her own campaign against Reynolds, only she used a grand jury.
Supposedly looking for evidence of obstruction of justice, Treadway obtained subpoenas that demanded, among other things, communications between Reynolds and the Schneiders, a PRN-produced video on the conflict between drug control and pain control, and documents related to a PRN-sponsored billboard in Wichita that proclaimed, “Dr. Schneider never killed anyone.” This investigation followed Treadway’s unsuccessful attempt to obtain a gag order prohibiting Reynolds from talking about the Schneiders’ case.
This is where it gets really weird. The AP’s Roxana Gegeman reports:
Siobhan Reynolds, president of the Pain Relief Network, has asked the nation’s highest court to quash subpoenas issued to her and her nonprofit group and make public the proceedings against her. The usually public court docket–which includes court documents, hearing dates and other case information–has been sealed in her case in a federal district court in Kansas and 10th Circuit Court of Appeals.
Even at the U.S. Supreme Court, there was scant public record showing her case existed until last week, when the court agreed to make a redacted version of her appeal available while it decides whether to take the case.
I know grand jury proceedings are supposed to be secret, but I’m kind of shocked that the targets of a grand jury can be prohibited from talking about their attempts to fight the subpoena.
Reynolds’ attorney, Robert Corn-Revere of Washington, D.C., said the case is unusual because most secret proceedings involve some kind of national security and this one does not. Federal prosecutors have declined to talk about their reasons for pursuing the case in secret.
Well, I’ll talk about the reason: Federal prosecutors are colossal dicks. Oh, sure, they sometimes nail real bad guys, but that’s kind of their job description, and it doesn’t excuse this kind of bullshit.
Actually, one federal lawyer sort-of talked about it:
Acting Solicitor General Neal Kumar Katyal has opposed unsealing the case or even making her full petition to the Supreme Court available. The document contains confidential grand jury material, he said in a written response to the court.
Wait a minute. Reynolds, the target of the grand jury, has stuff in her petition that is confidential grand jury material? How did that happen? And if she already has it, who are they hiding it from? What grand jury confidentially remains when someone not involved in the proceedings has information about them? And when did Reynolds acquire a duty to protect grand jury confidentiality?
The only scenario I can think of that doesn’t offend the First Amendment is if during her attempt to quash the subpoena she somehow received grand jury materials under the condition that she keep them confidential. I don’t even know if that’s possible. And you’d think somebody involved with the story would have mentioned it.
One more twist. The Institute For Justice and the Reason Foundation filed an amicus brief on Reynolds’ behalf. You and I can’t see it, though, because this brief, filed by outsiders to the original proceedings, is somehow covered by the gag order:
Before I wrote this post, I checked with Geoffrey Michael, the lead attorney on the I.J./Reason brief, to make sure it was OK to make the file available here. He thought that was fine, since the brief did not contain any secret grand jury information. But he has since informed me that the 10th Circuit’s clerk says the brief should not be published, which is why it is no longer here. This instruction illustrates the ridiculously broad notion of grand jury secrecy at play in this case, since the amicus brief is based entirely on publicly available information. Scott Michelman, the ACLU attorney who is representing Reynolds, told me he was not allowed to share his U.S. District Court brief opposing the subpoenas, although he was free to reiterate the arguments it contained.
The War On Drugs has almost completely destroyed the Fourth Amendment, so I guess statist pigs like Tanya Treadway and Neal Kumar Katyal have decided to take a run at the First Amendment.
I’ll let Jacob Sullum have the last word:
I’d like to show you the Reason/I.J. brief defending Reynolds’ First Amendment rights, but I’m not allowed to!