Rejected Search Warrant Applications Raise Further Questions About the Federal Case Against Don Lemon
· Reason
About a month after federal prosecutors accused former CNN anchor Don Lemon and eight other people of violating civil rights laws by disrupting a Minnesota church service, Timothy Gerber, a special agent at the Department of Homeland Security (DHS), sought to support that case by requesting five search warrants. Gerber wanted to obtain information about the YouTube and iPhone accounts used by several of the defendants. But as court records unsealed this week show, his affidavits were so deficient that a federal magistrate judge rejected them twice, after which the government withdrew the applications.
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That embarrassing episode adds a ridiculous wrinkle to a case that seemed dubious to begin with. The indictment stems from an obnoxious protest that opponents of the Trump administration's immigration crackdown staged at Cities Church in St. Paul on January 18. They targeted that church because one of its pastors, David Easterwood, was a supervisor at the Immigration and Customs Enforcement field office in St. Paul.
That rationale was morally nonsensical, and some of the protesters clearly committed misdemeanors under Minnesota law (trespassing and disorderly conduct) by remaining in the church after they were asked to leave and self-righteously haranguing the worshipers. But the decision to charge them with federal crimes, including a conspiracy count punishable by up to 10 years in prison, looked like politically motivated overkill, and the charges against Lemon—who was indisputably covering the protest for his YouTube show, albeit in a highly biased way—seemed like an assault on freedom of the press.
Gerber's unsuccessful warrant applications, which cast doubt on the competence and legal knowledge of DHS investigators, raise further questions about this case. "None of the five applications establish probable cause to believe that evidence of a crime will be found in the places to be searched," U.S. Magistrate Judge John F. Docherty wrote in a February 24 order. He added that "all of the warrant applications improperly refer the Court to material outside the search warrant application itself." And although Gerber had asked that the applications be kept under seal, Docherty noted, the government had not filed "a motion to seal" or "a proposed order."
In each application, Gerber aimed to establish probable cause by referring Docherty to the allegations in the January 29 indictment against Lemon et al., which he said were "incorporated by reference." But "search warrants are required to be self-contained wholes, capable of being evaluated on 'the four corners' of the application," Docherty noted. "A direction that the reader go look up some other document and review it for
probable cause is improper, and the Court would be justified in stopping its probable cause analysis at this point."
If Docherty ignored that principle and "found probable cause after consulting the
indictment," he added, "each defendant would have a motion to suppress that in the Court's opinion would be guaranteed success. In addition, it is the job of the government, not of the Court, to connect the facts that are claimed to constitute probable cause into a coherent narrative. In these five cases, the Court is simply directed to go read the indictment and make of it what it will, without any effort at all on the government's part to explain how the facts in the indictment constitute probable cause."
Docherty nevertheless looked at the indictment "in order to be thorough." He still "found no facts at all that support probable cause."
One of the applications sought a warrant that would compel Google to produce information about Lemon's YouTube channel. Although the indictment mentions Lemon's show, Docherty noted, it says nothing about YouTube. He also perceived a more serious problem.
The application "seeks 'subscriber information in any form kept,' including the names of subscribers, the mailing addresses, residential addresses, business addresses, and email addresses of subscribers, the telephone numbers of subscribers, and the Internet Protocol addresses from which [The Don Lemon Show] was accessed, among other information," Docherty wrote. Yet Gerber made "no attempt" to "explain why the compilation by the government of a comprehensive index of subscribers to [The Don Lemon Show] is evidence that a crime was committed," and "it is hard to see how such information could be relevant."
Gerber also wanted YouTube information about Georgia Fort, another journalist charged in the indictment. Neither Gerber's affidavit nor the indictment said anything about Fort "having a YouTube channel," Docherty noted. "And again, the government seeks comprehensive subscriber information."
Gerber did slightly better in a third application for a YouTube warrant, noting the titles of two videos that were posted by "DaWoke Farmer" on January 28. "It seems from context that the government alleges that YouTube channel 'DaWoke Farmer' is connected somehow to defendant Ian Kelly," Docherty wrote. "The trouble is that nowhere in the affidavit, and nowhere in the indictment, is there even an attempt to connect Mr. Kelly to 'DaWoke Farmer.'"
The YouTube content that Gerber described "appears to be paradigmatic political speech protected by the First Amendment," Docherty said. "Today we had the honor of protesting David Easterwood's church with Nekima Armstrong!" the title of one video said, referring to the main organizer, who is also named in the indictment. The other video was titled "No Rest for Demons!" DaWoke Farmer added that "if you support Kristi Noem [the DHS secretary at the time] you are a demon!" While such speech may be "rude" and "disrespectful," Docherty said, the titles of the videos (the only information about them in the affidavit) provided "nothing from which the Court can find" that YouTube records about the account are "likely to contain evidence" of a crime.
Gerber also sought information about two iPhone accounts. Although he provided numbers that he said were associated with Armstrong and another defendant, Ian Austin, he did not explain how he knew that. Nor did he provide sufficient reason to believe that the iPhone records would contain evidence of a crime.
"The affidavit states, in conclusory fashion, that 'ARMSTRONG used the SUBJECT DEVICE to communicate with co-conspirators,'" Docherty noted, but it "provides nothing more, such as who she communicated with, when, or, most importantly, how the government knows this number goes with this phone." Docherty also questioned the breadth of the information that Gerber wanted about the account he identified as Austin's: "App store logs? iTunes store records? Records of web-based access to Apple services? If any of this is remotely relevant, the government has not explained how."
Gerber tried again on March 6, although this time he did not seek a warrant for Armstrong's phone records. In response, Docherty said he was relieved to learn that the YouTube information sought by the government was not as broad as the original applications suggested. "The Court was concerned, when these three search warrant applications were originally submitted, that the request for search and seizure of 'subscriber' information meant the government was seeking to compile a list of people who had viewed the videos produced by these three defendants," he wrote in a March 6 order. "That issue appears to have been resolved, and the Court is now satisfied that these three search warrant applications seek only information concerning the use of their YouTube channels by the three named defendants themselves."
Docherty nevertheless saw another potential problem with those three applications. He noted that the Privacy Protection Act says a government employee investigating or prosecuting a criminal offense may not "search for or seize" work product or documentary materials "possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication."
Docherty said that provision, which aims to protect freedom of the press, might be relevant to the YouTube warrant applications, all of which involved a "form of public communication." One question, he noted, was whether the information that the government sought was still "possessed" by Lemon, Fort, and Kelly, even though it was stored on YouTube's servers. If not, it might not be shielded from disclosure under the Privacy Protection Act. But even assuming that protection applies, the law makes an exception when "there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate."
If Lemon, Fort, and Kelly "do not possess the materials sought, but YouTube does," Docherty wrote, "then (a) the exception to the proscription on searches does not apply because there is not probable cause to believe that YouTube committed the crimes being prosecuted but (b) the Privacy Protection Act might not apply because YouTube also is not a person who is preparing a broadcast." He noted that the government "has not provided any guidance on this point, preferring to stay silent on the entire question of the applicability of the Privacy Protection Act."
In addition to the issue of statutory interpretation, Docherty said, there was the question of whether the Justice Department had followed its own rules, which require that the government's lawyers "follow certain procedures when seeking materials from members of the press." As far as he could tell, "almost none of the procedures set out in the regulations seem to have been followed in this case."
There was "no indication that negotiations with these defendants occurred, and the
applications are not narrowly drawn," Docherty noted. "There is no indication that the defendants were 'given reasonable and timely notice' of the impending warrant." He added that "the Court will benefit from adversarial briefing and argument on
these issues." In the meantime, he said, "the Court cannot foresee any harm that will come from advising the defendants that these three warrants have been applied for."
Docherty also revisited the proposed warrant for Austin's telephone records. "There is no indication in the affidavit that Mr. Austin was seen using his phone to take photographs or videos while at Cities Church, no allegation that any such photographs or videos have turned up on social media, and no indication that Mr. Austin used his phone to communicate, via voice, email, or text, with other defendants," he wrote. "The application, in short, does not come close to establishing a nexus between the crime charged and the telephone records whose seizure is sought; therefore probable cause is lacking."
On March 26, the government told Docherty it was withdrawing its warrant applications. "Other options were available," the government's lawyers conceded in a May 15 brief that was primarily devoted to arguing that the Privacy Protection Act does not apply in this case. They added that "the subject data was of limited value, and, in retrospect, the list of items to be seized did warrant some tailoring."
Those admissions, like Gerber's apparent incomprehension of probable cause, do not reflect well on the government's care in pursuing this case. When prosecutors have "other options" that do not involve scrutinizing journalistic activity, they should use them, especially when the information they are seeking has "limited value" in making their case. And it should go without saying that "tailoring" of warrant applications is necessary to comply with the Fourth Amendment's prohibition of unreasonable searches and seizures.
"These failed search warrants are what happens when incompetent prosecutors pursue political vendettas instead of justice," says Caitlin Vogus, senior advocacy adviser at the Freedom of the Press Foundation. In addition to Lemon and Fort, she notes, photographer Junn Bollmann faces similar charges in a separate indictment based on his presence at the Cities Church protest. "Having or watching a YouTube channel aren't crimes, and neither is reporting on a protest," Vogus adds. "Before the Department of Justice embarrasses itself even more, it should immediately drop the prosecutions of Don Lemon, Georgia Fort, and Junn Bollmann."
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