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Harmeet Dhillon: Violating Customs and Laws to Do the Bidding of the Far Right
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The filings submitted in the Cities Church case on Monday were perhaps most interesting for the substantive motions to dismiss submitted jointly by most of the defendants. Together, they provide a remarkable statement about Harmeet Dhillon’s efforts to turn Civil Rights on its head.The motions include:
- 674 Selective and vindictive: This situates the Cities Church defendants as the targets of Trump’s explicit policy to turn the FACE Act on its head, and reviews the pardons and rewards given to FACE criminals, the phony weaponization report, the refusal to protect LGBTQ-affirming churches, and the ouster of FACE Act prosecutors from Civil Rights. Harmeet Dhillon will now have to answer for her refusal to protect the Civil Rights of those she hates.
- 677 18 USC 241: This argues a failure to state an offense because: 1) the First Amendment only constrains the government 2) the FACE Act as applied to churches is unconstitutional 3) if it weren’t, it would be narrower than as used in the indictment 4) and if not, it was not established law at the time of the protest. Effectively, it ensures that if 687 works, then Count One should fail too.
- 687 Commerce Clause challenge to FACE Act (Declaration): This is an expected challenge to the constitutionality of the FACE Act as applied to churches. Anna Bower wrote about the problem here, and the right-libertarian group Center for Individual Rights has submitted an Amicus.
- 695 Outrageous abuse of customs subpoenas (Declaration): As I explain in below, this is an attempt to throw out the prosecution based on the way HSI used customs subpoenas, which in part serves as a way to attack the way HSI has been used to conduct an investigation the FBI would not.
- 756 Government misconduct AI slop: This replicates an effort made by the assault defendants Pam Bondi turned into trophies, specifically relying on the disclosures from Mohamed Jama, to demand discovery and dismissal because of trophy pictures, especially the AI slop targeting Nekima Levy Armstrong, used here. The targeting of Armstrong is even more abusive than the Bondi trophies were because it implicates the White House for creating disinformation targeting a criminal suspect.
- 760 First Amendment: This argues that under precedents established by bigots like a cross-burner and Westboro Baptist Church, this protest was protected under the First Amendment.
As noted, I’m going to focus on the MTD based on the customs subpoenas.
It is very difficult to throw out an entire prosecution because of clear violations of the Fourth Amendment. The motion to dismiss for violations of customs summonses attempts to throw out an entire prosecution for materials covered by the Third Party Doctrine, the phone and travel records obtained using customs subpoenas. For that reason, the Commerce Clause challenge is far more likely to work that this is.
But in a sense, the motion uses clearly unlawful use of customs subpoenas as a proxy for the unlawful way this investigation was conducted, with Harmeet Dhillon using Homeland Security Investigations goons, the investigative arm of ICE, rather than the FBI which has regulations aimed at preventing politicization, to carry out her personal witch hunt. It may also be an attempt to expose parts of the investigation the government is trying to bury. It explicitly is an attempt to get the court to stop HSI from “us[ing] administrative subpoena power to flout the statutory and constitutional protections governing warrants and the criminal compulsory process,” which might result in a ruling such use is illegal but would not eliminate the case.
The motion builds on the motion for discovery on HSI’s use of customs subpoenas that Thomas Tier submitted in July, and the government’s response, which locked the government into certain positions it may regret.
The argument is fairly simple:
- HSI does not have authority to investigate this alleged crime.
- It certainly can’t use administrative subpoenas to do so.
- Even if it could, the way HSI used administrative subpoenas is abusive.
But before the motion gets into that legal argument it provides specific details about when and how the customs subpoenas were used.
HSI started using customs subpoenas the day after the protest. It continued to issue subpoenas with return dates after DOJ filed charges, and then — much later in the investigation — started issuing prospective summons, one seemingly to track who accessed an Instagram account, another to track one defendant’s prospective travel.
The incident underlying this prosecution occurred on January 18, 2026. HSI began using administrative summonses pursuant to 19 U.S.C. Section 1509[ ]the following day.1 On January 19 and 20, 2026, investigators issued summonses to telecommunications providers, including Verizon, AT&T, T-Mobile, and Inteliquent/Sinch, seeking records associated with numerous telephone numbers. Declaration of Jill A. Brisbois, para. 1 and 2, Exhibits 1 and 2. 2
The exhibits provide more detail about these subpoenas. The first was issued at 10:33ET/9:33CT on January 19.
That was just over a day after Harmeet Dhillon responded to a tweet from Karoline Leavitt at 9:34PM on January 18 describing that senior DOJ officials “and a team of prosecutors and investigators are hard at work tonight.”
It was close to the same time, at 9:42PM on January 19, when Harmeet responded to the Federalist Faceplant’s Sean Davis, insisting they were considering more than civil penalties, and inviting him to call her personally “instead of publicly trash.”
In between, Harmeet exchanged tweets with leading far right trolls — CatTurd, Benny Johnson, “Gunther Eagleman,” Will Chamberlain — accepting “tips” from several (including one, Chamberlain, who has been demanding that DOJ “put down” “Antifa,” including by using the Klan Act, since 2020). She also bitched about the need to get a judge to sign off before she could start arresting people.
According to the summary of all the customs summonses included with the filing, that first summons returned files on several people who were not just not among the first people charged, but who were never charged. Records were returned from William Kelly and Chauntyll Allen, who were charged along with Nekima Levy Armstrong in the initial complaint a day later, as well as Jamael Lundy and Don Lemon, who were charged by indictment on January 29. But the summons also returned records from Bruce Kelly (who might be a relative of William?), two other men who were not (as far as I can tell) ever charged, and a “No Results.”
This is consistent with what I suggested here: that HSI got a cell dump or some other location data from the planning meeting and — as the lawyer for Heather Danae Lewis, the woman who was falsely charged in the superseding indictment suggested — used the cell dump to identify potential suspects and did no more than match driver’s licenses to the video before charging people. HSI appears to have gotten a summons return on Lewis on February 17, ten days before she was charged with two felonies because she went to pick up auction winnings in the same parking lot used by the protestors.
The original complaint referred to Michael Beute as Michael Last Name Unknown; starting on January 26, HSI started using summonses to figure out who had traveled with Don Lemon to Minnesota.
But as the MTD explains, HSI repeatedly asked for phone records on people, then didn’t wait to get the returns of those phone records before they charged them.
Many of those initial summonses required production in early February. The Government charged three defendants by complaint with violations of 18 U.S.C. § 241 issued on January 20, 2026, and those defendants were arrested on January 22, 2026. Doc. 23; 9, 11, 26.
[snip]
The Government continued issuing Section 1509 summonses as the criminal proceedings progressed. Between January 25 and January 28, 2026, investigators issued additional summonses for telecommunications records. See Brisbois Decl., para. 3, Exhibit 3, Lines 7-12.3 On January 26, 2026, investigators expanded their use of Section 1509 beyond telecommunications providers. A summons to Hertz sought rental information concerning a defendant, including payment, insurance, third-party driver, and vehicle information. Brisbois Decl., para. 3, Exhibit 3, Line 9. A summons to Delta sought domestic and international travel and flight information concerning two defendants, including passenger, booking, and payment information. Brisbois Decl., para. 3, Exhibit 3 Line 10.
On January 29, 2026, a federal grand jury returned an indictment charging nine defendants with violating 18 U.S.C § 241 and 248, including the original three charged by Complaint. Doc. 39. At that time, several Section 1509 summonses already issued by investigators remained outstanding, with production dates extending beyond the date of indictment.
[snip]
The summonses issued after the superseding indictment were not confined to obtaining historical telecommunications information. Between March 2 and March 4, investigators issued a Section 1509 summons to Instagram seeking subscriber information and IP/PORT logs associated with a particular account. Brisbois Decl., para. 3, Exhibit 3, Line 53. During the same period, investigators issued airline summonses seeking passenger, booking, payment, contact, and identifying information, as well as “lookout notification” for future travel through June 4, 2026. Brisbois Decl., para. 1 and 3, Exhibit 1 and Exhibit 3, Lines 53, 54, 57, and 60-64.
[snip]
In total, investigators issued 92 administrative summonses pursuant to Section 1509. Of those, eleven were issued before the January 29 indictment; thirty-eight were issued after the January 29, 2026 indictment but before the February 26, 2026 superseding indictment; and forty-three were issued on or after February 26, when all 39 defendants had been indicted.
1 An investigation was not conducted by the FBI into this matter.
2 Exhibits 1 and 2 represent two example summons issued in the course of this investigation.
3 Exhibit 3 is summary chart of the 92 Section 1509 summons produced by the Government.
And HSI does not appear to have integrated this information into legal process reviewed by judges.
The summary shows HSI would have gotten a device identifier from T-Mobile for Thomas Tier by March 2; but Timothy Gerber still referred to his phone only as “light blue IPHONE in a camo otter box case” in a warrant affidavit attested four days later. It shows HSI would have gotten a device identifier from T-Mobile for Jarmel James Perry by February 18, plenty of time to get a warrant before seizing his phone when they arrested him on February 27, but Berger referred to his phone only as “a light blue/silver Apple iPhone in a clear case with black edges” when he finally got a warrant for it on March 10. Similarly, HSI would have gotten a device identifier for Monique Cassandra Cullars-Doty’s iPhone in the same subpoena return as Perry’s data on February 18, but Berger referred to it only as “a dark purple/black Apple iPhone with a clear case” when he got a warrant on March 13.
Either Berger is astoundingly slovenly — and I don’t discount that possibility!! Or he was hiding how they used these summonses to identify people based off their phones, with all that might entail about illegal location surveillance (and, potentially, authorities HSI is using for immigration enforcement).
Remember: Judge Laura Provinzino ordered and should have received all the grand jury transcripts on August 25, just over a week ago. If it is clear defendants are not seeing something that DOJ used to indict these defendants, it could make this and the cell phone motions to suppress more interesting.
That’s what the MTD gets at when it describes how customs summonses were used to “obtain information capable of identifying individuals [and] establish[] associations among them.”
The summonses were used throughout the investigation to obtain information capable of identifying individuals, establishing associations among them, locating witnesses, tracing communications and travel, and generating additional investigative leads. In that way, § 1509 was not used merely to obtain discrete evidence at the margins of an otherwise independently developed prosecution. It became part of the infrastructure through which the Government developed and expanded its investigation. That distinction matters when assessing the Government’s conduct as a whole: the alleged statutory violation was not isolated to a particular piece of evidence, but was embedded in the investigative process itself.
HSI wasn’t using this to conduct a grand jury investigation, which use defendants concede would be legal. It was use to build a network analysis of people opposed to ICE in Minnesota. And this misuse of the customs subpoena authority, defendants argue, is a violation of the Stored Communications Act.
[A] grand jury may continue a bona fide investigation after indictment, but its subpoena power may not be used “for the sole or dominant purpose of preparing a pending indictment for trial.” In re Green Grand Jury Proceedings, 492 F.3d 976, 986 (8th Cir. 2007); United States v. Wadlington, 233 F.3d 1067, 1074 (8th Cir. 2000); United States v. Puckett, 147 F.3d 765, 770 (8th Cir. 1998).
Congress separately prescribed Governmental access to records held by electronic communication and remote computing services through the Stored Communications Act (“SCA”). See 18 U.S.C. § 2703. The SCA permits compelled disclosure of the subscriber information identified in § 2703(c)(2) through an administrative subpoena only when that subpoena is “authorized by a Federal or State statute.” 18 U.S.C. § 2703(c)(2); see United States v. Taylor, 54 F.4th 795, 804–05 (4th Cir. 2022). Section 2703 does not itself create administrative subpoena authority; it presupposes an independently authorized subpoena. Other covered records may require different process, including Section 2703(d) orders or warrants. General discovery or summons authority cannot be used to circumvent the SCA’s specific protections. See FTC v. Netscape Commc’ns Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000).
HSI relied on Section 1509 as the independent authority for its telecommunications demands. If Section 1509 was unavailable for this investigation, those demands were not administrative subpoenas “authorized by a Federal . . . statute” within Section 2703(c)(2). The same records were obtainable, where the governing standards were met, through warrants, Section 2703(d) orders, grand-jury process, or trial subpoenas. See 18 U.S.C. § 2703(c)–(d). The point is not that post-indictment investigation was forbidden; it is that Section 1509 could not become a parallel, agency-issued source of criminal compulsory process untethered to the purposes Congress specified.
There’s much more legal discussion about why HSI can’t conduct this investigation and how this investigation differs from the sex trafficking cases that HSI has been empowered to conduct, discussion that effectively rebuts excuses DOJ offered to Tier’s motion for discovery.
Of most interest to me, though, is that it repeats and expands on a point Tier made in his discovery motion, which as far as I can tell, DOJ totally blew off in its response. Donald Trump already got told he can’t use customs summonses this way.
DHS’s own historical treatment of Section 1509 confirms that investigative authority and Section 1509 summons authority are distinct. CBP’s April 2016 Special Agent Internal Operating Procedures stated that, “[a]bsent a nexus to a Title 8 or Title 19 violation,” a § 1509 summons “may not be used,” and that if an investigation did not meet the limited criteria, use of the summons was “not authorized.” Dep’t of Homeland Sec., Office of Inspector Gen., CBP’s Use of Examination and Summons Authority Under 19 U.S.C. § 1509, OIG-18-18, at 4 (Nov. 16, 2017) (“OIG-18-18”).
In 2017, after CBP used Section 1509 to seek identifying information for the @ALT_USCIS Twitter account, DHS OIG found the purpose unrelated to importation or customs duties and concluded CBP “may have exceeded the scope of its authority under Section 1509.” Id. at 2–4; see also Reporters Comm. for Freedom of the Press v. U.S. Customs & Border Prot., 567 F. Supp. 3d 97, 103 (D.D.C. 2021).
The agency responded by clarifying “the limited contexts in which Section 1509 Summonses may properly be used.” OIG-18-18, at 4. For employee-misconduct investigations, the guidance limited use to misconduct connected to importation, certain exportations, or transportation or storage under bond. Id. at 3. For records from third parties outside § 1508’s customs-recordkeeping regime, including “telecommunications providers, social media outlets, and banks”, the guidance required probable cause to believe the records related to prohibited importation and consultation with agency counsel. Id. at 4–5. OIG concluded that the guidance brought policy “in line with the purpose and language of Title 19.” Id. at 3. CBP then revised procedures and provided training. Id. at 6–7. This history shows that DHS itself has treated investigative authority and § 1509 authority as distinct questions. [link added]
And nevertheless, in an investigation ordered up by him directly, in an investigation that plays a central role in Trump’s efforts (laid out in docket filing 674) to turn abortion protections on their head and instead use the FACE Act to target peaceful protestors, in an investigation with direct, personal, and open involvement from Pam Bondi and Harmeet Dhillon, HSI did use customs subpoenas in that way.
It’s highly unlikely that defendants will succeed with this motion by itself. But if HSI is hiding some of what they did to come up with this investigation, it might lead to interesting places.
And people.
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