by Paul Alan Levy
In my blog post yesterday about developments in the litigation over the search warrant to DreamHost, I recounted the encouraging signs from DC Superior Court Chief Judge Morin’s written order and colloquys with counsel during oral argument at a hearing this week about his determination to protect the privacy rights of anonymous Internet users who communicated with the Trump inauguration protest web site, or who provided their names to activists so that they could receive updates from that web site. At the hearing, as readers can see from the hearing transcript that I linked from the blog post, the lawyer who appeared for the Government at that hearing assured the judge that he understood what the judge was demanding and that the Government would comply with the judge’s conditions in a new proposed order.
Just as I was ready to press “publish” on that blog post, the Government submitted its promised proposed order enforcing the warrant. I confess that I was horrified: that proposal was so far from what Judge Morin said he wanted, and so far from what Government counsel said he would deliver, that I was left wondering whether the problem is that the Trump Administration is represented in this case by a disingenuous lawyer, or whether the problem is that the new proposed order was prepared by other lawyers who were not at the hearing and also did not review the transcript of the hearing (which was not ready until very late yesterday afternoon). The proposed order is unsigned.
Today, meeting the judge's timetable that responses be filed within twenty-four hours, we submitted our response on behalf of the intervenors, including both a brief explaining what parts of the government’s proposal we dispute, and how we would revise that proposal, as well as a markup of the proposed order that attempts to be true to Judge Morin’s rulings, even ones with which we disagreed (although at the same time we ask the judge to revisit one very significant issue). DreamHost has also filed a response to the Government’s proposal.
Given the lateness of the hour, I leave it to readers to review the papers submitted by both sides and see whether they share our concern at the continued efforts of the Trump Administration to invade the political discussions of the vast majority of Trump opponents whose response to his election remained entirely peaceful, basically taking advantage of the foolishness of a small number of individuals who carried out a riot during the inauguration and, according to an undercover police officer, deliberately planned to riot.
This is a president who has no tolerance for dissent, and we shall all have to be on our guard against the misuse of the judicial process to oppress his opponents. We must hope that Judge Morin will persist in holding the prosecutors to the First Amendment protections that he has enunciated to date.