How the Feds Blocked Me from Covering a Pill Mill Trial
You might call me a poster boy for an era of darkness, delays, denials, and intimidation under President Barack Obama.
Potter Stewart U.S. Post Office and Courthouse, Cincinnati, Ohio (Photo by Carol M. Highsmith/Buyenlarge/Getty Images)
If you took President Obama at his word, this was supposed to be a golden age for investigative journalism in America.
On his first day in office, the Commander-in-Chief penned a memo encouraging executive agencies to adopt a "presumption in favor of disclosure" when processing Freedom of Information Act (FOIA) requests. The White House later rolled out the details of an "unprecedented level of openness" it was determined to bring to Washington. In 2013, Obama famously said he's running the "most transparent administration in history."
It hasn't quite worked out that way.
In fact, Obama has a transparency record that ranges from disappointing to downright scary. His administration has aggressively prosecuted leakers, spied on the Associated Press, restricted access for photographers, and practiced "retroactive redaction" on court transcripts, among other eyebrow raisers. The list of news outlets to report on these and other shortcomings span the ideological spectrum, and include Slate, the Atlantic, Columbia Journalism Review, Democracy Now!, National Review, Bloomberg, Mother Jones, Reason, Politico, and the Washington Post.
As for the Freedom of Information Act, last March, the AP reported the Obama administration had set a new record for withholding FOIA requests. And a recent House Oversight Committee report called "FOIA Is Broken" describes how, less than four months after Obama issued his "presumption of openness" memo in 2009, White House lawyers issued a second, non-public memo, "reminding all Executive Branch agencies... [that] all documents and records that implicate the White House in any way... must receive an extra layer of review."
In other words, the administration was saying one thing and doing another.
I offer these sweeping claims as a prelude to my own story because, without it, I'm just a wild-eyed freelancer with a crazy tale. In the wider context of President Obama's treatment of the press, however, you might call me a poster boy for an era of darkness, delays, denials, and intimidation.
In 2009, I learned that one of my dad's med school classmates had been accused of dealing prescription drugs. The 35-page indictment claimed that Dr. Paul Volkman—whom my dad remembered as a nerdy, bespectacled chess enthusiast—had, over the course of more than four years, made millions distributing more than 1.5 million pain pills. The scheme caused the overdose deaths of "at least 14 people," prosecutors said. If true, this made him one of the most prolific and deadly prescription drug dealers in US history.
I was about to enroll in a Columbia University graduate writing program when I learned about the case, and I got excited about the idea of making Volkman's story my first book. For the next three years, I went into reporting overdrive, crisscrossing the eastern half of the United States, interviewing doctors about pain, addiction, and opioid medications like Vicodin and OxyContin. I drove to Chicago to visit Volkman, who was eager to convince me of his innocence as he awaited trial. And I frequently shuttled to Portsmouth, Ohio, the burnt-out former industrial town on the Ohio River—"America's pill mill capital" and "ground zero in the pill explosion," according to former LA Times reporter Sam Quinones—where Volkman's alleged crimes took place.
It was during one of these trips to southern Ohio, in 2010, that a Drug Enforcement Administration (DEA) agent approached me about my project. The agent somehow knew I had interviewed people on both sides of the case, and he named a person—the mother of one of Volkman's former patients—I had spoken with a few days earlier. He repeatedly asked me if I was aware of the potential for my journalism to do harm. Before handing me a business card and walking away, he mentioned the possibility that I could be charged with witness tampering.
Later that day, shit really got weird when I received a Facebook message from a former Volkman patient I had recently interviewed.
Seven months later, in March of 2011, the Volkman trial began in Cincinnati. And, as opening arguments took place, I was sitting in the courtroom, wearing a tie and scribbling furiously in a notebook. On day four of the trial, though, during a break in the proceedings, I was handed a subpoena in the hallway outside the courtroom. The document, filed by the prosecutor, commanded me to report to the courthouse the following morning "FOR TESTIMONY."
This didn't make much sense. No one had previously approached me about testifying, and since I had first learned about the case more than a year and a half after the indictment, I had no first-hand knowledge of Volkman's clinics. But I was now on the witness list, which prevented me from re-entering the courtroom.
The trial stretched for another two months, and my call to testify never came. I had been locked out, and without the backing of a major news organization, I didn't have the resources to fight the subpoena and regain a spot in the courtroom.
Still, I continued to work on the story.
After the trial ended with Volkman's conviction, in May, I did my best to reconstruct what I'd missed. I eventually got a hold of most of the trial transcripts, but the other half of the trial record—the toxicology reports, photographs, emails, and more than 200 other exhibits jurors had seen—proved much more difficult to get my hands on. My initial requests to court clerks, the prosecutor, and the judge were all denied. (The sixth amendment guarantees all citizens a public trial. Why wouldn't the evidence remain public when the trial ended, I wondered.) So on February 1, 2012, I filed a FOIA request for the materials the jury had seen. To avoid any confusion, I included the 16-page list of exhibits with my request.
In order to fully appreciate what happened next, you would have to stop here and wait three years—1,108 days, to be exact. That's how long it took President Obama's Department of Justice to answer my question, "May I see the evidence that sent a man to prison for four consecutive life terms?"
The first agency that received my request, the Executive Office for US Attorneys, held it for nine months before charging me a $154 "review fee," and transferring it to the DEA, which had investigated Volkman. The DEA then took another two years and two months to complete the request, often waiting months between sending packages of heavily-redacted pages. Thanks to a second FOIA request for the processing notes from my first request, I know that, at one point, my request was forwarded to the wrong DEA field office, where it was accidentally deleted.
By the time I filed a lawsuit against the DEA in March of 2015 (with the help of my state ACLU and two pro-bono attorneys, Neal McNamara and Jessica Jewell), the DEA had been processing my request for more than 800 days, withheld more than 85 percent of the pages it had processed, and "released" mostly useless documents, like blank patient-examination sheets and slideshow pages with all of the key information blocked out. The FOIA-focused news site MuckRock called my experience a "nightmare."
That nightmare still isn't over.
As I write this, the lawsuit remains unresolved. A recently issued motion-filing timeline for the case shows that a final ruling won't arrive until this summer, at the earliest—months after the fifth anniversary of the Volkman verdict. It's small consolation that my FOIA request has turned me into a minor celebrity in the government-transparency world. When the House Oversight Committee released that "FOIA Is Broken" report in January, I was the lone journalist quoted in the executive summary: "I often describe the handling of my FOIA request as the single most disillusioning experience of my life." (The DOJ, DEA, and White House did not respond to requests for comment for this article.)
I voted for Obama twice. I'm often inspired by his speeches. And as a freelancer, I'm hugely grateful for my Obamacare coverage. Despite all of my experiences, I still find the man hard to dislike.
But none of this changes what I've experienced over the last five and a half years.
I began reporting on the Volkman case not long after my first journalism internship. Back then, I didn't know a DEA agent would hint at the prosecutorial power of the federal government to get me to back off from reporting. I didn't know subpoenas could be used as courtroom-ejection devices. I didn't know a judge would recommend sending DEA or FBI agents to Columbia to confirm my enrollment (see page 89 of the trial transcript from the day I was subpoenaed), or, later, personally deny my request for evidence once the trial ended. I didn't know that, despite ample evidence to the contrary, a DOJ representative would testify before a congressional committee about the agency's sparkling FOIA record—testimony that prompted the committee chair to tell her she lived in "la la land." I didn't know that that same DOJ, would, after years of FOIA stonewalling, continue to fight against the release of trial evidence in response to my FOIA lawsuit.
This administration's attitude toward journalism is summed up nicely in an exchange from the Volkman trial courtroom on the day I was subpoenaed: March 7, 2011. After the jury had been dismissed, the judge spoke with the prosecutor about the 25-year-old graduate student—which is to say me—who had been barred from re-entering the courtroom:
If you had shown me the prosecutor's peculiar "at this point" phrasing in 2008, I might not have thought much of it. Today, though, after seven years of so-called transparency, it sounds like a threat.
And it still scares me.
Follow Philip Eil on Twitter.
- VICE US
- PRESCRIPTION DRUGS
- Views My Own
- Vice Blog
- freedom of information act
- pill mills