The subpoena's breadth indicated that its aim was not to investigate a possible crime (in this case, violation of the Espionage Act) but to prevent the dissemination of classified material. This appears to be an unprecedented use of a grand jury subpoena, which is supposed to be used to obtain information, not suppress it.
The ACLU filed a motion to quash the subpoena, arguing that the government was abusing the grand jury process to achieve what amounted to a prior restraint on speech, aimed at stopping the ACLU from publicizing the document's contents. At a Dec. 11 hearing, U.S. District Judge Jed Rakoff seemed inclined to agree.
"There seems to be a huge difference between investigating a wrongful leak of a classified document and demanding all copies of it," Rakoff noted. "I wonder what the authority is for using a grand jury subpoena for that purpose." He also alluded to the 1971 "Pentagon Papers" case, in which the U.S. Supreme Court said the government may not prevent publication of classified material unless it would cause "direct, immediate, and irreparable damage to our Nation or its people."
One week after that hearing, the Justice Department, suddenly realizing "the grand jury can obtain the evidence necessary to its investigation from other sources," dropped its subpoena. The document, deemed "secret" just a year ago based on criteria that are hard to fathom, was declassified on Dec. 15 for reasons equally mysterious. This is the sort of thing that gives secrets a bad name.
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