Federal prosecutors decline to confirm Don Lemon phone records seizure

Defendants seek case dismissal, citing more than 90 administrative summonses

Federal prosecutors declined on Monday to say whether they obtained journalist Don Lemon’s phone records through an unusual administrative summons, according to a court filing from Lemon’s legal team. The disclosure comes as legal experts have argued that the Department of Homeland Security is misusing a statute intended for customs investigations to collect records on journalists and other targets.

In January, DHS served Verizon with an administrative summons for Lemon’s phone records covering December 19 through January 20, his lawyers wrote. The request did not come from a grand jury — the typical vehicle for criminal investigative subpoenas — nor was it a court-approved search warrant. Instead, DHS issued it unilaterally under 19 USC 1509, a law giving the department authority to investigate records related to customs matters.

Legal experts have argued the government is abusing that authority to gather records on journalists, activists, unions, nonprofits, and online critics, and that the practice runs afoul of the Fourth Amendment’s privacy protections. The summons is also unusual in that, unlike a grand jury subpoena, companies are not required to comply — they can force the government to go to court to enforce the demand.

Records the government has produced to Lemon’s lawyers leave it unclear whether Verizon complied with the January request, his attorneys wrote. Lemon’s lawyers contacted prosecutors on Friday for clarity and had not received a response as of Monday.

The Justice Department declined to comment. Verizon and DHS did not return requests for comment.

Lemon was charged in January with conspiring to violate federal laws that protect religious expression after he covered a protest at a church in Saint Paul, Minnesota, where activists said a pastor was a member of Immigration and Customs Enforcement. He is among dozens of defendants charged in connection with the demonstration.

DHS used the same Section 1509 authority to secretly obtain six months of telephone records from T-Mobile for Georgia Fort, an independent journalist who, like Lemon, was covering the protest and was subsequently charged. Fort’s lawyers said in a filing last month they were “stunned” the government had obtained the records without notifying Fort or giving her a chance to contest the demand.

The government’s effort was especially alarming, Fort’s lawyers said, because a magistrate judge in the case had previously rejected a separate effort to obtain YouTube records on Fort and Lemon. In that ruling, the judge told the government that special protections apply when the government seeks records from journalists, and that the government must give reporters a chance to challenge the effort.

Lemon’s lawyers filed their Monday submission on the same day nearly all defendants in the case moved to have the case dismissed, citing in part the government’s use of 1509 summonses. In a joint filing, the defendants wrote that the government had issued more than 90 administrative summonses in the case for telephone, airline, social media, car rental, and employment records. They argued DHS lacked the legal authority to investigate the matter at all.

“The Government acted beyond the authority Congress conferred on it, repeatedly invoked a purpose-limited customs summons to obtain evidence in an unrelated domestic criminal investigation, and continued doing so throughout an active prosecution,” the defendants wrote. “The scale, duration, and deliberate use of that compulsory power are central to whether the Government’s conduct crossed the constitutional boundary into outrageous Government conduct.”

Prosecutors have defended their use of 1509 summonses, even though the case has no apparent customs connection. In a brief earlier this year, they pointed to language in the statute that says summonses can be used “for ensuring compliance with the laws of the United States administered by the United States Customs Service.” Because U.S. Customs was folded into DHS, the agency is entitled to use the summons in any case involving a law the department enforces, prosecutors argued. They added that because the protesters went to the St. Paul church looking for an ICE official who was also a pastor there, a potential crime was committed against a DHS official, which makes the summons proper.

Lawyers for the defendants rejected that reasoning in Monday’s filing. The statute’s language does not give DHS subpoena power over every law the department “happens to investigate,” they wrote.

“DHS therefore inherited Customs’ Section 1509 authority subject to the same limits Congress imposed,” they wrote. “The reorganization changed who could exercise that authority, not its scope.”