The Volokh Conspiracy
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No Pseudonymity for Attempt to Get President-Elect Trump Disqualified and to Allow Him to Be Privately Prosecuted
From Doe v. Chutkan, decided today by Chief Judge James Boasberg (D.D.C.):
In this pro se lawsuit, Plaintiff John Doe seeks, first, a court declaration that President- elect Trump is constitutionally ineligible to serve as President and the Supreme Court's recent decision holding otherwise is "void"; and, second, an order requiring Defendants Judge Tanya Chutkan and Attorney General Merrick Garland to preserve and provide Plaintiff grand-jury materials and other documents so that he and other private citizens may "prosecute" President-elect Trump.
Plaintiff moves here to proceed pseudonymously on the ground that bringing this lawsuit will "expose [him] to retribution." As Plaintiff has not made the detailed showing required to overcome the presumption in favor of disclosure, the Court will deny the Motion, subject to any further consideration by the United States District Judge to whom this case is randomly assigned….
Generally, a complaint must identify the plaintiffs. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." As a result, the court must "'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure'" ….
The court concludes that the public interest in identifying the plaintiff is especially strong here:
[Plaintiff] aims to remake large swaths of the American constitutional landscape. It is hard to imagine a case in which the "public interest in open and transparent proceedings" would be more "intensified."
The court also concludes that it would be especially unfair to the defendants to allow plaintiff to sue pseudonymously while "'disparag[ng]' multiple 'government employees,' including one of the Defendants" through "his vituperative filings." (Courts have often held that it's especially unfair for plaintiffs to shield their own names while impugning the reputation of individual defendants.) The court concludes that this is not a case where pseudonymity can be justified by a concern for personal privacy:
Nowhere in his Motion or Complaint does Plaintiff suggest that this lawsuit will touch on anything related to him, much less the kind of "sensitive and highly personal" information that can weigh in favor of pseudonymity, such as information related to "sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors."
And it rejects plaintiff's argument that he should be pseudonymous to avoid retribution against him:
Doe asserts that … bringing this lawsuit will "expose" him to "retribution" from the President-elect's incoming Administration and its supporters. Plaintiffs' claims, however, are "speculative and unsubstantiated." To be sure, his Motion notes instances in which supporters of the President-elect have reportedly lashed out at those they perceived as a legal or political threat to the President-elect. Indeed, as the Motion partially points out, both the Special Counsel who prosecuted the President-elect and the judge of this Court assigned to that case (whom the Plaintiff has made a putative Defendant here) had their homes "swatted."
But Plaintiff's claims of impending retribution are ultimately too bare and attenuated. This case is a far cry from those in which the second factor has supported anonymity. Rather than offer "detailed declarations supported by [his] prior experiences" or those of others similarly situated, he invokes examples of Soviet and North Korean repression. Because he provides no concrete basis upon which to conclude that this lawsuit might provoke retaliatory "physical or mental harm" from the President-elect's allies and supporters, his allegations are "conclusory" and therefore "must be rejected."…
