But it shouldn’t matter whether critics of a prosecution are on the mark or off of it. Their right to criticize the government for such prosecutions should be above question. But, in reality, apparently it isn’t. Assistant United States Attorney Tanya Treadway was enraged by the criticism of Siobhan Reynolds and her Pain Relief Network. Treadway took the astounding step of demanding that a court gag Reynolds and her organization, asserting that Reynolds had “a sycophantic or parasitic relationship” with the defendants Treadway was prosecuting, and that she was using the case “to further her own personal interests.” To Treadway, speech ought not be free if the speaker is advancing a personal interest. That’s an odd interpretation of the First Amendment, and not one that the judge was willing to accept.
Treadway was not deterred by the federal judiciary’s minimal resistance to her efforts at censorship. Having failed to use one tool — a gag order — she resorted to the federal prosecutor’s favorite tool: the grand jury.
Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later. Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target’s motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that “Hey, we’ve got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues.” 99% of the time, the grand jurors wouldn’t look up from their newspapers, hoping they’d get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don’t make me laugh until I throw up.
Tanya Treadway knows all of that. So, thwarted in her demand for a gag order to silence the critics of her little battle in the Great War on Drugs, she turned to the more reliable weapon of the grand jury.