Day: January 8, 2013

OK folks have we thought about this enough?  We have a federal subpoena out to the folks at NOLA Media Group asking for all the skinny on 11 internet commenters.  One of the post Katrina NOLA police murder cases involving civilians is in danger of getting verdicts set aside.  And the former Goatherder in Chief has asked for an evidentiary hearing. Days later Federal prosecutors contested Broussard’s motion arguing his guilty plea precluded such a line of inquiry.  And then I started getting emails from observers with criminal defense experience and those off blog comments were enlightening.  I’ll preface the rest of this post by saying I know very little about the practice of criminal law in the Federal Court system beyond the fact it is hard for a defendant to win at trial.

With that said there are some important points that were made and the first regards the Team Horn subpoena to NOLA Media Group for information on those 11 commenters. I’ll let a knowledgeable reader explain:

As part of their law enforcement mission the Feds can issue a subpoena to ensure that the law is being observed. They don’t need even a suspicion that the law may have been violated to issue a subpoena. That the newspaper is (1) objecting, (2) asking the Feds to disclose the basis for the subpoena, and (3) questioning whether the DOJ has authority to request the information under the Inspector General Act is curious and raises issues. For example, if the DOJ indulges the newspaper’s opposition and does not respond by saying, “Make the return on the subpoena or we’ll seek a contempt citation against your publisher.” it will indicate a lack of resolve and perhaps a political approach by the DOJ in the investigation.

Insofar as the merits are concerned, the paper can’t object, because it is not any of the commenters who have that right instead. The newspaper has no standing to act to ensure the DOJ is complying with law. That’s a right that belongs to the commenters and there’s no 1st Amendment issue involved. If there were it would have been asserted already. Furthermore, federal law enforcement need not give a basis for issuing the subpoena. They can issue a subpoena to check whether the law is being observed even without a suspicion of criminal activity. They need not give the basis to the newspaper. Asking for the basis for the subpoena is like asking for information so the paper can expand on the story. Thus, not only are the merits entirely in favor of the DOJ, the paper insulted the DOJ.

The newspaper is defending itself, not the commenters.

This raises interesting questions and lots have been raised of late regarding that Federal subpoena to NOLA including by Jason Berry over at AZ. The rumor mill is in overdrive as to any connection between the subpoena and Fred Heebe’s various defamation lawsuits against former members of the US Attorney’s office.  Until something else comes out I’m sticking with my theory that Heebe did not need an insider beyond his own legal team to divine Perricone and Mann were posting to NOLA.com. Continue reading “Let’s drill down a bit on the latest developments in USA v Broussard: A playing on the internet update.”