Breathtaking Abuse of the Constitution

Joe Arpaio, Andy Thomas and Dennis Wilenchik hit New Times with grand jury subpoenas

A A A Comments (194) By Michael Lacey and Jim Larkin Thursday, Oct 18 2007

This newspaper and its editorial staff — both current and former — are the targets of unprecedented grand jury subpoenas dated August 24.

The initial grand jury subpoena named New Times Media LLC.; that's us, Michael Lacey (right) and Jim Larkin. We founded Phoenix New Times in 1970 in reaction to the war in Vietnam; our newspaper company has since expanded across America. The two of us live here, our kids go to school here, and we begin every day confronting the issues of journalism here. In nearly 40 years of work, this is our first joint byline. (You see, grand juries have their positive side.)
Giulio Sciorio
The initial grand jury subpoena named New Times Media LLC.; that's us, Michael Lacey (right) and Jim Larkin. We founded Phoenix New Times in 1970 in reaction to the war in Vietnam; our newspaper company has since expanded across America. The two of us live here, our kids go to school here, and we begin every day confronting the issues of journalism here. In nearly 40 years of work, this is our first joint byline. (You see, grand juries have their positive side.)
The most outrageous part of the over-the-top New Times subpoena is this section demanding the identities of our Web site readers, plus their Internet viewing habits. See full text of the subpoena here.
The most outrageous part of the over-the-top New Times subpoena is this section demanding the identities of our Web site readers, plus their Internet viewing habits. See full text of the subpoena here.

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The authorities are also using the grand jury subpoenas in an attempt to research the identity, purchasing habits, and browsing proclivities of our online readership.

It is, we fear, the authorities' belief that what you are about to read here is against the law to publish. But there are moments when civil disobedience is merely the last option. We pray that our judgment is free of arrogance.

These are the issues as we understand them.

In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly unhinged cat's paw, special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present."

Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.

In addition to the omnibus subpoena, which referred to our writer Stephen Lemons directly, reporters John Dougherty and Paul Rubin were targeted with individual subpoenas.

More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004.

Every individual who looked at any story, review, listing, classified, or retail ad over a period of years.

The seemingly picayune matter of Sheriff Arpaio's home address getting printed at the bottom of an opinion column on our Internet site — and the very real issue of commercial property investments the sheriff hid from public view — have now erupted into a courtroom donnybrook against a backdrop of illegal immigration disputes, Mexican drug cartels, the Minutemen, political ambition, and turf disputes between prosecutors and the judiciary.

And given the diva-like drama that Arpaio attaches to even the mundane, you can add to the grand jury tension the paranoia of a Keystone Kops assassination "plot" against "America's toughest sheriff."

Behind these operatic and public developments, an ethical stain has spread over the secret proceedings of the grand jury.

Special prosecutor Wilenchik has sabotaged the integrity of the investigation.

Not content with using the hidden power of sweeping grand jury subpoenas, the government's lawyer attempted to get the ear of the sitting judge — out of earshot of New Times' attorneys.

Special prosecutor Wilenchik used a politically potent emissary in a behind-the-curtain attempt to set up a meeting between the judge overseeing the grand jury and Wilenchik.

In a hastily called hearing October 11, the judge labeled Wilenchik's attempt to set up an ex parte discussion "absolutely inappropriate."

In our humble opinion, Wilenchik's clumsy intervention behind the scenes with the judge was well beyond "inappropriate." Wilenchik's behavior raised the issue of an attempt to rig a grand jury already veiled in official secrecy.

In our deliberations, we faced the obvious: A grand jury investigation is a fearsome thing; a tainted grand jury is a tipping point.

We intend now to break the silence and resist.

This is hardly the first time — even if the scope here is breathtaking — that law enforcement attempted to use a grand jury to get at the confidential records of reporters or editors. But the contemptuousness of this troika of ambitious politicos is reflected in their attempt to target the readers of New Times.

In a grandiose insult to the Constitution, Arpaio, Thomas, and Wilenchik used the grand jury to subpoena the online profiles of anyone who viewed four specific articles on the sheriff.

The pertinent section of the secret grand jury subpoena reads, in part: "All internet web site information for the Phoenix New Times internet site related to the web pages . . . [four specific articles on the sheriff]. The information should include, but not be limited to: The Internet Protocol addresses of any and all visitors to each page of . . . [four specific articles on the sheriff]. . ."

Energized, perhaps, by this mugging of Constitutional safeguards, Arpaio, Thomas, and Wilenchik then shot the moon. The grand jury subpoena also demands Web site profiles of anyone and everyone who visited New Times online over the past two and a half years, not merely readers who viewed articles on the sheriff.

The subpoena demands: "Any and all documents containing a compilation of aggregate information about the Phoenix New Times Web site created or prepared from January 1, 2004 to the present, including but not limited to :

A) which pages visitors access or visit on the Phoenix New Times website;

B) the total number of visitors to the Phoenix New Times website;

C) information obtained from 'cookies,' including, but not limited to, authentication, tracking, and maintaining specific information about users (site preferences, contents of electronic shopping carts, etc.);

D) the Internet Protocol address of anyone that accesses the Phoenix New Times website from January 1, 2004 to the present;

E) the domain name of anyone that has accessed the Phoenix New Times website from January 1, 2004 to the present;

F) the website a user visited prior to coming to the Phoenix New Times website;

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