I have a pen and I have notes, to borrow a phrase. I have notes of comments made by President Trump at the White House reception for conservative media on April 24, 2017 on the occasion of his first hundred days in office. I used my notes to write up my account of the reception for Power Line readers in “At the White House with Trump.”
In a scenario out of Twilight Zone or The Outer Limits, I was served at home with a subpoena by lawyers for plaintiffs in one of the “travel ban” lawsuits from the early days of the Trump administration. The subpoena would have taken my notes away from me. They were going to let me keep my pen.
The story seemed to me illustrative of the will to power of the left as it flexes its muscle on campus, in the media, in the administrative state, and in the courts. It is certainly a story illustrative of the Age of Trump.
My attitude to the subpoena was inspired by the Steely Dan number “Don’t Take Me Alive.” I objected to the subpoena, as I was entitled to do under the Federal Rules of Civil Procedure. Plaintiffs’ attorney Tana Lin wasn’t going to get my notes without a trip to the United States District Court for the District of Minnesota, where I was sure I would get a fair hearing.
The lawsuit was venued in federal district court in Seattle, but the State of Minnesota had joined the litigation as a plaintiff. I urged the plaintiffs’ attorneys to send the Minnesota Attorney General over to the federal district court in St. Paul or Minneapolis to attempt to enforce the subpoena so Minnesota taxpayers could see how the Minnesota AG is spending their money. This is the message I sent to the plaintiffs’ attorney who subpoenaed me:
Dear Ms. Lin: Over the weekend I received your letter dated June 7[, 2017] and the draft subpoena you enclosed in the above referenced matter. Referring to the draft subpoena, your letter advises me to preserve all documents in my custody potentially relevant to the litigation. Your draft subpoena refers to my notes and other documents pertaining to comments made by President Trump at the White House reception for conservative media that I attended on April 24, 2017. You footnote two posts I published on Power Line in connection with the reception.
I find your letter deeply offensive. You seem to think I might have left some Trump bombshell buried in my notes. As you know, the purpose of my posts was reportorial. The premise of your subpoena seems to me like glorified harassment.
You advise me that the litigation is stayed but that Judge Robart has “authorized” you to notify me to seek my confirmation by June 15 that I will comply with your preservation instruction. You may have been “authorized” to send out your letter by Judge Robart—you don’t provide me a copy of his authorization to let me take a look for myself—but as far as I can tell I have no obligation to respond. As Bartleby put it in Melville’s story, I would prefer not to. If you are aware of any rule, law or order imposing a duty on me to respond, please let me know.
The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “nonparty.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading.
Rule 34(c) cross references Rule 45. As a distant nonparty to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity.
This is to notify you that if and when you serve me with a valid subpoena, I intend to object to it under Rule 45. If obligated to comply, I intend to seek the protection of the other provisions of Rule 45 applicable to distant nonparties.
Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson [now Keith Ellison] has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation.
These people are nuts.
Thanks to City Journal editors Brian Anderson, Paul Beston, and Seth Barron, I told my story in the column “Don’t subpoena me, bro.” Nearly three years later, I have just been released from the subpoena (below). The attorney thanks me for my “continuing cooperation,” but that is misleading. I am free at last!