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The Biden Department of Justice has just suffered a loss in the gender ideology theater of its War on Wrongthink.
Yet in its pursuit of conservative nonprofit Eagle Forum of Alabama, America's preeminent law enforcer demonstrated its transition to the Biden Regime's preeminent thought enforcer is near complete.
First to its defeat: The DOJ's loss comes in the form of a federal judge's order quashing the "overly broad and utterly burdensome" subpoena it issued to the advocacy group—a description that does not do full justice to the disturbing nature of the Department's demands on Eagle Forum.
It issued the subpoena under the auspices of a case, to which Eagle Forum is not even party, that is ground zero in the Biden administration's jihad for "gender-affirming care"—a euphemism for helping transition gender dysphoric children via a regimen that can include puberty blockers and cross-sex hormones, up to the surgical removal of breasts and replacement of genitalia.
The administration is both working to expand access to such "care," and is combating efforts to contract it. As President Joe Biden indicated in a recent interview, he believes no state should be able to bar what amounts to the mutilation of children. "As a moral...and...legal question," Biden said, "I just think it's wrong."
His Justice Department is acting accordingly. In April, it joined others in suing Alabama over its Vulnerable Compassion and Protection Act (VCAP). In so doing, the DOJ made good on a threat it had raised a month earlier, when, in March, radical Civil Rights Division Assistant Attorney General Kristen Clarke penned a letter to state attorneys general nationwide effectively putting them on notice they could face legal action should their states proscribe "gender-affirming care."
VCAP, enacted in May, but halted shortly thereafter due to the litigation, prohibited the prescribing of medication and operating on gender dysphoric children to help transition them under penalty of felony. The Justice Department claimed the bill's prohibitions violated the 14th Amendment's Equal Protection Clause.
Eagle Forum had lobbied for the legislation, and, according to the DOJ, it might have been involved in drafting it. So, in a move not unlike the government's devious effort to use January 6 to seek highly detailed information from myriad individuals at far remove from the claimed issue at hand, in August DOJ issued a subpoena to Eagle Forum under the veneer of a discovery request. It commanded the advocacy group—again, a non-party to the suit, and whose lobbying work is First Amendment-protected activity—to produce eleven categories of documents spanning five and a half years.
The DOJ request covered anything and everything related to VCAP, including, as Eagle Forum detailed in a press release announcing it would be contesting the subpoena: "all private communications with legislators or anyone else regarding VCAP; every note, meeting-minutes, letter, policy goals and strategy effort, speech, presentation materials, research, polling," and more.
Only two people could produce the requested documents, according to filings—a process they have alleged would prove not only irrelevant to the case at hand, but chilling and onerous: volunteer Eagle Forum General Counsel Margaret Clarke, and its sole full-time employee, Executive Director Becky Gerritson.
Clarke wrote in a memo that in its 45 years of advocating for legislation, neither Eagle Forum of Alabama nor its affiliates had ever been subpoenaed over such work.
"If this subpoena is enforced," she wrote, "it will have an unprecedented chilling effect on historically protected constitutional rights and legislative advocacy in Alabama and possibly around America."
What's more, she wrote 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. And all in service of a subpoena lacking in any clear relation to the case at hand: Whether VCAP was constitutional.
She called the DOJ's request "political harassment."
In a separate affidavit, Gerritson—no stranger to government abuse, having testified before the U.S. House in 2013 about the Obama IRS's targeting of the Wetumpka Tea Party group she then led—echoed Clarke's concerns. She asserted 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 to make their views known to their elected officials on public policy matters."
Ironically, as Heritage's Hans von Spakovsky observed:
The right to associate freely with other citizens who share your interests was recognized by the Supreme Court in 1959 in NAACP v. Alabama...in that case, the [also Democrat-led] Alabama state government was harassing the NAACP with similar demands for information due to its work on civil rights issues and legislation.
Facing Eagle Forum's effort to quash the subpoena, and amicus briefs endorsed by dozens of notable signatories, including Spakovsky, the DOJ relented.
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 response to this development, Eagle Forum reiterated to the court that the DOJ continued to "improperly ignore[] the fact that...VCAP...is the product of the Alabama Legislature which enacted it—not...private organizations which have no lawmaking authority whatsoever."
In a subsequent hearing, presiding Judge Liles Burke took the assistant U.S. attorney who signed off on the subpoena, Jason R. Cheek, to the woodshed.
According to a transcript, Judge Burke asked Cheek, "What changed between this subpoena that you filed in good faith today, when it appears you are asking for 1% 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?"
Cheek seemed to walk on eggshells in response, essentially arguing that the pushback it received from Eagle Forum and others influenced the government's decision-making, and that the initial broad subpoena represented something of an opening bid, with the expectation there would be "a conversation, an engagement" with Eagle Forum to follow.
On this latter point, seemingly lacking in self-awareness, Cheek said he was "not faulting" Eagle Forum for filing a motion to quash—as if the nonprofit was somehow being unreasonable by fighting the subpoena.
Judge Burke was nonplussed.
He noted that with such a subpoena as precedent, a future DOJ might well make the same requests of the Southern Poverty Law Center, or the ACLU—that is, threatening progressive organizations with menacing requests. "Is that where you think the Department of Justice thinks we need to go in this country?" Judge Burke asked.
Cheek replied, "That is not a consideration that any of us on this team made."
Days later, Judge Burke issued an order quashing the subpoena, citing the "Government's own conduct."
One can only hope this thoroughly deserving rebuke serves as a deterrent to Merrick Garland DOJ's targeting of political opponents, going forward.
With a seeming red wave afoot, it remains an open question whether the Biden administration will be chastened, or throw all caution to the wind and continue pursuing its political foes with reckless abandon two years out from the next presidential election.
Ben Weingarten is a senior fellow at the London Center for Policy Research, fellow at the Claremont Institute and senior contributor to The Federalist. He is the author of American Ingrate: Ilhan Omar and the Progressive-Islamist Takeover of the Democratic Party (Bombardier, 2020). Ben is the founder and CEO of ChangeUp Media LLC, a media consulting and production company. Subscribe to his newsletter at bit.ly/bhwnews, and follow him on Twitter: @bhweingarten.
The views expressed in this article are the writer's own.
