Senate Secrecy: Can the Votes of Senators on President Trump’s Impeachment be Withheld from the Voting Public?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone evaluate the suggestion made by some that the votes of senators on President Trump’s impeachment can and should be private. Amar and Mazzone argue that while the text of the Constitution alone does not foreclose secrecy, structural, prudential, and logistical considerations strongly disfavor a secret vote on the matter.

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In The Matter of the Application of Subpoena 2018R00776

Docket: 19-3124

Opinion Date: January 10, 2020

Judge: Roth

Areas of Law: Civil Procedure, Communications Law, Constitutional Law

ABC stores its subscribers’ data on the cloud. ABC received a grand jury subpoena issued under 18 U.S.C. 2703(c)(2), ordering it to produce the non-content data of one of its subscribers, as part of a criminal investigation. The subpoena was accompanied by a nondisclosure order (NDO), prohibiting ABC from notifying any person, except its lawyers, of the existence of the subpoena for one year. Weeks later, a magistrate issued a search warrant directing ABC to produce content-specific data for the same account, with another NDO. ABC complied. The subscriber filed for bankruptcy. ABC moved to modify the NDOs to permit it to notify the bankruptcy trustee of the existence of the subpoena and warrant, arguing that the NDOs are content-based restrictions and prior restraints that infringe upon its First Amendment rights. ABC asserted the bankruptcy trustee had a duty to uncover and assert causes of action against the debtor’s officers and directors. The district court found that 18 U.S.C. 2705(b) implicates the First Amendment rights of service providers and that such an NDO passes strict scrutiny. The Third Circuit affirmed the denial of ABC’s motion to amend the NDOs. The governmental interest in maintaining grand jury secrecy is sufficiently strong for the NDOs to withstand strict scrutiny; the restriction is the least restrictive means of serving that interest and is narrowly tailored, being limited to one year.