DHS's investigation of a man who emailed a DHS lawyer is over — but not the concerns it raises

After 99 days, DHS retracted an administrative subpoena targeting a man following his exercise of his First Amendment rights — but never explained why it was investigating him.

The Trump administration withdrew a retaliatory administrative subpoena last week — 99 days after the Department of Homeland Security initially targeted a man for sending an eminently reasonable and non-threatening email to a DHS lawyer who was quoted in a newspaper article.

The third-party administrative subpoena path — a request for information not signed by any judge and sent to someone who holds relevant information but is not the target of the request — is rife with constitutional and other concerns at any time. It is particularly alarming in this era.

Although the February 5 withdrawal of the administrative subpoena affecting Jon Doe, the pseudonym used to identify the man targeted, ends his challenge to it, his lawyers from the ACLU wrote in a court filing on Tuesday that there is ample evidence of repeat “misuse of administrative subpoenas to retaliate against individuals who had communicated opposition to or concern about DHS’s immigration enforcement operations”

Further, they wrote, the withdrawal of these administrative subpoenas when challenged — as they did with Jon — “also forestalls a court ruling on the common allegations of legal and constitutional violations.“

In other words, these anti-constitutional efforts from DHS targeting people for exercising their First Amendment rights will, undoubtedly, continue.

This all began when Jon Doe, the pseudonym used to identify the man, wrote an email asking the DHS lawyer to “err on the side of caution” in addressing the asylum case described in The Washington Post article that Doe read.

The email of the lawyer, Joseph Dernbach, was publicly available in a quick Google search.

That should have been the end of it, but, not in the Trump administration.

DHS sent an administrative subpoena — not signed by any judge — to Google just four hours after Jon sent his email.

In the administrative subpoena, the government sought extensive information about Jon’s email account with Google.

Jon’s initial efforts to push back against this authoritarianism did not prompt the government to back down — the opposite happened — but, due to Jon’s efforts, he was able to prevent Google from complying with the subpoena.

There was a cost. As the Post reporter who had written the October 30 story, John Woodrow Cox, later wrote of Jon’s experience after receiving notification of the administrative subpoena:

Eventually, on February 2, Jon — who had secured legal help from the ACLU — filed a motion in federal court to quash the subpoena.

The filings opened up the alarming past three months Jon had experienced since sending the four-sentence email.

In a declaration, Jon detailed that morning of November 17, when two Homeland Security Investigations agents and a local law enforcement officer came to his door and the HSI agents asked him about the email.

He also explained his feelings after they left:

On February 3, the day after the motion was filed, Cox published his Post story about what was going on with Jon.

On February 5, DHS “retracted“ the subpoena and Jon’s lawyers were told “that the investigation of [Jon] had been concluded.“

In a conversation informing Jon’s lawyers of those developments, the ACLU explained on Tuesday, the government lawyer “did not provide explanation of the basis for investigating [Jon] nor assurances that there were not and would not be any other legal demands for [Jon]’s information in relation to the facts of this Motion.”