DC District Court Overrides Judge John Facciola's Orders, Grants DOJ Request For Gag Order On Subpoenaed Companies

from the throwing-a-shoulder-into-the-government dept

It appears Washington, DC magistrate judge John Facciola is still making the government earn everything it asks for. Facciola is the judge who has been sending the government back to its desk to rewrite overly broad warrants seeking electronic data. In one of these cases, the government decided that it would rather go "judge shopping" all the way across the country rather than narrow its request, but was shot down by a California district court judge.



Facciola's orders are the basis for two memorandums recently issued by DC District Court Judge Richard Roberts concerning a case still mostly under seal as part of federal grand jury investigation. (The government also asked for these to be filed under seal, but that has obviously been declined.)

The government challenges two orders issued by Magistrate Judge John Facciola regarding the government's application for an order under 18 U.S.C. The first order invited Twitter, Inc. to intervene as a respondent and file a notice with the court on whether Twitter intended to be heard on the merits of the government's application. The second order instructed the government to file a public, redacted copy of its application and draft order.

On March 27, 2014, the government filed what it styled as an appeal from the magistrate judge's two orders regarding the government's application for an order under 18 U.S.C. The government moved to vacate the orders issued by the magistrate judge and moved for the district court to grant its application for a nondisclosure order. In addition, the government moved to seal the appeal and resulting order.

The government styles its challenge as an appeal, but the reference is a misnomer. With the exception of authority granted by Federal Rule of Criminal Procedure 58 concerning misdemeanor proceedings handled by a magistrate judge under 18 U.S.C. 3401, the district court does not exercise appellate power. See, United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011) ("The magistrate judge is not an inferior court, and the district court does not stand in an appellate capacity over the magistrate.") For the reasons explained below, the government's appeal will be considered as an objection to the magistrate judge's two orders.

Because the express terms of 18 U.S.C. 2705(b) and applicable legal precedent governing public access to grand jury proceedings and materials do not support the first order inviting Twitter [and Yahoo] to intervene or the second order instructing the government to file a public, redacted copy of the non-disclosure application, the orders will be vacated.

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Facciola also issued a similar order for Yahoo, the other company being subpoenaed. Both sets of orders invited the companies to challenge both the gag order preventing them from informing their customer(s) of the government's interest in their data. The government understandably wasn't thrilled with these orders and filed an appeal (of sorts) seeking to have Facciola's orders vacated. The District Court notes that the judicial system -- at this level -- doesn't exactly work this way.This faux pas by the government is explained a bit further in a footnote, as is the judge's rationale for treating this as an "objection," rather than an "appeal."Several more pages of judicial rationale follow, pointing out that grand jury deliberations aresubject to transparency and that Facciola erred by suggesting Twitter and Yahoo could either challenge the gag order or inform their customers. Judge Roberts points out that there's very little either company can offer in terms of judging the "merit" of the government's gag order, or the subpoena itself. Further discussions also defer to "government knows best" mentality, suggesting that any notification would "jeopardize" ongoing investigations. That this investigation is tied to a grand jury slams the door shut on any appeal of the gag order.So, the government gets its win, but it had to put in a little extra paperwork. It hoped these documents would be sealed as well, but you can't win them all, especially when memos in question contain only one redactable sentence each. If this is how the last few months have gone in Facciola's court, it's little wonder the government has been making road trips to other venues.

Filed Under: dc district court, doj, gag order, john facciola, richard roberts, subpoenas

Companies: twitter, yahoo