Tuesday, November 6, 2018
by Prof. Dina Haynes, New England School of Law
In October of 2018, the Department of Homeland Security sent a “subpoena/summons” to an immigration attorney. The document stated: “You are requested not to disclose the existence of this summons for an indefinite period of time. The government works for, and at the behest of, the people.” The “subpoena/summons” requested the private attorney to supply “All information related to the Immigration and Customs Enforcement (ICE) memorandum with the subject title of “Litigating Domestic Violence-Based Persecution Claims Following Matter of a A-B-“ dated July 11, 2018; including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.” The document was sent by the Special Agent in Charge within the Office of Professional Responsibility at DHS. The Summons cited 19 U.S.C. § 1509, which is a section of the US Code giving authority to Customs Agents to seek records pertaining to improper import or export of goods to or from the United States. The attorney so summoned also happens to be the private attorney who has for decades compiled the daily deluge of laws, cases, regulations, memos and practice changes within government necessary for immigration lawyers to review to stay current on immigration law and policy. He is a lawyer and a journalist.
DHS appeared to be attempting to use authority conferred to it for the purpose of preventing smuggled, untaxed or counterfeit goods into the United States, to force a private attorney, who also happens to be a journalist, to provide information they sought on an internal “leak.”
Every person in the United States should take heed. This blatant misuse of the law, abuse of a position of authority, warrantless subpoenas and use of administrative “summons” to threaten private attorneys is authoritarian in nature and warns of worse erosion of rights to come. How does the Special Agent in Charge of Professional Responsibility within DHS not know that his fishing attempt vastly exceeds his authority? How does he not know that this warrantless “summons” is being gravely misused as applied? The answer is that he does know, and he doesn’t care. His superiors have consistently demonstrated growing disregard for the rule of law, and for private immigration attorneys. The Attorney General of the United States has called immigration lawyers “dirty” and stated that we work to undermine the law, when speaking before federal employees; his subordinates.
This culture of impunity, this emboldening of federal employees to make hash of the rule of law, is exceedingly troubling.
When officers of the federal government feel unfettered by constitutional restrictions placed upon them, we all lose. When lawyers are collectively maligned and undermined and threatened and called names by the “highest lawyer in the land,” the very foundations of the rule of law are destabilized. When individual lawyers are threatened with malicious prosecution or fake subpoenas by federal employees, the will of all lawyers to continue to fight on behalf of the rights of others is diminished. We are being threatened so that we will exercise prior restraint on ourselves. Our speech is being chilled. The Founding Fathers understood that those two principles were central to the effectiveness of constitutional democracy, free from the tyranny of the majority. If we continue to sit back and let federal employees act in this disgraceful manner, we will have no rule of law left when we need it the most.