Judge decides not to remove self from subpoena case

A federal judge decided Wednesday not to remove himself from a case involving a subpoena seeking information about people who posted online comments on a Review-Journal story about a criminal tax trial.

The American Civil Liberties Union of Nevada had filed a motion to recuse U.S. District Judge Kent Dawson because of his history with cases involving Robert Kahre and tax protester Irwin Schiff.

But the judge denied the motion, saying the ACLU was making "a big stretch" by arguing that a reasonable person might see a potential bias against Kahre, whose criminal case spurred the comments that federal prosecutors deemed threats.

The first grand jury subpoena to the Review-Journal demanded the identities of dozens of online commenters who posted on the May 26 story about Kahre's ongoing trial on tax evasion charges.

The newspaper resisted the subpoena and later complied with a narrower request for information about two posts that authorities deemed threats.

One poster called the jurors "12 dummies" who "should be hung" if they convict Kahre. The second commenter wanted to wager "quatloos," a form of money on "Star Trek," that one of the prosecutors wouldn't reach his next birthday.

The ACLU, representing four anonymous commenters, is fighting the original subpoena.

Dawson did not address the issue surrounding the subpoena and the threats, but he did say, "I certainly have seen a lot worse than has been presented here."

In its motion to recuse Dawson, the civil rights group argued that the public might perceive bias because of the judge's involvement in a civil case with Kahre and the judge's need for protection when he presided over the Schiff criminal trial.

"Nobody is suggesting actual bias in this case, your honor. We are not questioning your integrity or state of mind in this case," ACLU lawyer Judy Cox said.

The ACLU argued that Dawson saw a potential bias when he recused himself from the Kahre criminal case, which was originally assigned to him.

Dawson explained that he removed himself from the criminal case because his sanctions against Kahre in the civil case were being challenged in the 9th Circuit Court of Appeals. Also, Dawson's brother had just begun working for the law firm that represented Swiss Casinos, which had been sued by Kahre in the civil case.

The ACLU also argued that the public might infer that Dawson was biased against tax protesters in general because he was put under the protection of the U.S. Marshals Service during the Schiff trial.

Dawson said he never feared for his life and took the protection only at the urging of the marshals. He also pointed out that anti-tax advocates during the Schiff trial slashed tires and poured acid on the vehicles of IRS agents. One juror had rocks thrown through her windshield.

"The activities in the Kahre trial do no rise to anywhere near the level of that in the Schiff case," Dawson said.

The judge said he would decide the case based on case law, not personal opinions.

"The court is not concerned about being fair and unbiased in this matter," he said.

Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.