Various helpful friends have told me that my Completely Definitive Account of New York Attorney General Letitia James’ lawfare against the VDARE Foundation was too long and too rhetorical (aka too vitriolic about NYAG James. But it made me feel better!). So here’s a tl;dr version.
The tl;dr of the tl;dr: we have not yet been charged with anything. NYAG James is simply trying to batter us to death with subpoena demands, falsely insinuating to courts that we may have misappropriated assets to buy the Berkeley Springs Castle in West Virginia for our personal benefit, although she has long been supplied with proof that we did not.
Our legal fees already exceed $300,000, for an organization whose annual budget is typically $600-$800,000. It is a miracle, and a tribute to our heroic donors, that we have been able to survive thus far.
The VDARE Foundation is a 501(c)(3) charity that aims to educate Americans about the downside of mass immigration. This is controversial, but not illegal (yet). The VDARE Foundation was registered in New York State in 1999, a less Politically Correct time. It is perfectly normal for 501(c)(3) charities to be registered in states other than those in which they have a physical presence. However, New York State has to give its consent for a 501(c)(3) to leave its jurisdiction. (And may retain jurisdiction even after that.)
NYAG James, who has ex officio oversight over the VDARE Foundation, is notorious for politically motivated lawfare. She ran for office vowing to prosecute President Donald J. Trump and the National Rifle Association and subsequently did so. Another, little-known, example: In August 2022, she tried to intimidate the tiny Cornerstone Church in Batavia, NY out of hosting an event featuring President Trump’s son Eric and former National Security Advisor General Michael Flynn.
In mid-2022, without the legally required warning, we learned from Facebook that NYAG James had issued two subpoenas about our transactions with it (odd because Facebook, also without warning, had already suppressed VDARE.com’s account in the run-up to the 2020 Presidential Election — as well my personal account and that of my wife and business partner Lydia — making the entirely false claim that we were operating a bot farm).
Ominously, and betraying political motivation, in both cases the Facebook subpoenas were issued on NYAG Letitia James’ behalf by someone called Rick Sawyer, who is described as “Special Counsel for Hate Crimes.”
Subsequently, in June 2022, also without warning, i.e., without the normal courtesy communication with us to resolve any possible concerns, NYAG James subpoenaed the VDARE Foundation with a staggering 44 separate demands, most of them of no conceivable relevance to any oversight function she could conceivably claim to exercise, e.g., details of our libel action against the New York Times [Subpoena PDF].
Significantly, she made no mention of our litigation against the City of Colorado Springs for announcing it would not extend police protection to our 2017 proposed conference — no doubt because it was a patently unconstitutional violation of First Amendment precedent established in the 1960s Civil Rights era.
In the current Politically Correct environment, the VDARE Foundation has increasingly serious difficulty procuring legal (or any other professional) services at all — all this stuff about John Adams representing the British soldiers accused in the Boston Massacre although himself a Patriot, once the pride of the American legal profession, has gone down the toilet. And VDARE.com is basically just a mom-and-pop operation. So complying with NYAG James’ sweeping demands was unusually onerous.
Nevertheless, as evidence of good faith, by December 2022 we had produced over 7,000 pages of documents to AG NYAG Letitia James. We had engaged a third-party custodian to sort through our 40 gigabytes of emails, the equivalent of perhaps millions of pages, because we needed to protect the identities of our vendors, writers, volunteers and donors. And our lawyers’ review of those emails was well under way.
Despite all this, in early December, we received a peremptory email from NYAG James’ office demanding that the VDARE Foundation, within ten days, disclose its constitutionally protected information, reveal previously redacted (because we want to protect donors, writers and correspondents) information in the first 7,000 pages of production; complete review of the 40 gigabytes of emails (ditto); and produce a complete redaction log for the entirety of its production. (N.B. we know that NYAG James cannot be trusted to keep this information in confidence because she has, e.g., leaked Niki Haley’s donor information.)
At this point, with NYAG James’ bad faith irrefutably evident, we filed a complaint in Federal Court for declaratory and injunctive relief. In other words, we want an official declaration that James’ harassment has violated our First Amendment rights, and we want the Court to halt, or at least more narrowly tailor, her attempt to enforce the subpoenas. [Complaint as Filed PDF]
Normally, the fact that we filed first should have meant that our First Amendment argument would have been heard in Federal Court. But, after asking us for extra time to respond allegedly because of COVID and the Christmas Season, NYAG James exploited our lawyers’ professional courtesy to file against us in New York State Court anyway. In doing so, she again violated procedural norms. [Memo of Law PDF]
Equally shockingly, and with unprecedented speed — as in, the next business day after filings were completed — New York State Judge Sabrina Kraus ruled against us, uncritically accepting NYAG Letitia James’ false assertions as to why she had cause to want disclosure. Kraus even endorsed NYAG James’ demand that we provide the names of pseudonymous writers.
This is particularly telling because NYAG James had ostentatiously eschewed asking for the names of pseudonymous writers in her response to our Federal suit — presumably because of its flagrant First Amendment implication. This violates the doctrine of judicial estoppel, which explicitly precludes litigants from making contradictory claims in different courts.
Of course, we appealed. But, again with unprecedented speed, the Appeals Court rejected our stay pending appeal. See ruling here. Note the net effect of NYAG Letitia James’ aggression: We are now forced to fight this ruinously expensive war on TWO fronts — in Federal Court and in New York State Court. In fact, THREE fronts — because we are still being forced to prepare production to comply with NYAG Letitia James’ demands in case we lose. See The Process Is The Punishment,
Given the vast array of documents we have supplied to NYAG James, the complaints she is referencing in her demand for more disclosure are malevolently trivial.
For example, she claims Lydia and I did not specify, on one filing, that we are married. But we have the same last name. And we have repeatedly, perhaps boringly, celebrated our 2007 marriage on the VDARE.com website, which she has admitted she stalks. Manifestly, there was no intent to deceive.
NYAG James’s key insinuation: that the VDARE Foundation bought the Berkeley Springs Castle in WV as a personal residence for the Brimelow family. But we have provided documentation that we bought it because we have discovered we could not rely on corporations or government authorities to defend our First Amendment right to hold conferences — and the holding of conferences is critical to our role in advancing immigration reform.
The reality: The Brimelow family no longer owns a home. But our shelter dollars now go to support the Berkeley Springs Castle complex. We have always paid independently determined rent for our time living in the castle, and now for the small cottage on the grounds that we have subsequently occupied.
NYAG James also insinuates that we transferred assets purchased by the VDARE Foundation to a for-profit corporation that Lydia “controls.” But NYAG James knows that this for-profit corporation, part of our perfectly normal prudential restructuring after we were forced into the real estate business, is in fact owned by the VDARE Foundation — NOT by Lydia personally. Every step of the Berkeley Springs Castle transaction was carefully monitored by expensive lawyers — because we were well aware that we were susceptible to scrutiny by a malicious and unscrupulous politically motivated regulator. But that seems to make no difference to NYAG James.
Significantly, NYAG James refused to meet with our lawyers to discuss our disclosure on these allegedly key points. She has just continued to harass us by subpoena.
The Federal Court will now (1) rule that NYAG James has secured enough disclosure by now and should file charges or cut bait; or (2) rule that the VDARE Foundation should make a more narrowly tailored disclosure; or (3) turn the matter back to the state court.
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