Dems' resistance stymies DOJ in Stephen Miller doxxing case

Driving the news: Late Wednesday, U.S. Magistrate Judge Lindsey Vaala denied the FBI's petition for a warrant to search the smartphone owned by the suspect in the case, a 66-year-old retiree named Barbara Wien.

• The Justice Department plans to appeal, a source told Axios.
• The FBI wants to examine Wien's phone to see if she lied to investigators or was part of a group that might pose a risk to Miller and his family.

Weeks earlier, in a related state investigation, a progressive prosecutor in Arlington, Va., made an unusual request by essentially siding with the defense to persuade a state judge to limit the search and keep the data from the FBI.

• "The position of the judge and the justice system in Northern Virginia is, Stephen Miller deserves this, so it shouldn't be investigated," a senior administration official said. "This is just about gathering evidence to see if there should be an arrest. And the judges are blocking it."
• Wien's lawyer said she broke no laws and is a harmless academic "in the field of peace studies." He accused DOJ of trying to quash lawful dissent.

The big picture: Miller and his family were moved from their Arlington home to a military base as the Wien case has unfolded.

• Other high-level Trump administration officials also have been moved to bases, a sign of the GOP leaders' alarm about angry protests, the assassination of Charlie Kirk and the assassination attempts on Donald Trump.
• "A lot of administration officials feel it's a problem that you have to live in Virginia or D.C. or Maryland. But the criminal justice system will not protect you and your family," a White House official said.

The backstory: The case began Sept. 11, when Wien was spotted posting flyers in Miller's Arlington neighborhood.

• The flyers included a photo of Miller with a red circle and cross through it and said, "NO NAZIS IN NOVA," court records show.
• The flyers listed Miller's home address and a QR code that linked to the Instagram account of the activist group Arlington Neighbors United for Humanity (ANUFH).

Wien walked by the Millers' home that day and made eye contact with Miller's wife, podcaster Katie Miller, who was on her front porch, according to a search warrant affidavit.

• Wien made an "I'm watching you" gesture by pointing her index and middle finger to her eye, a frame grab from a Secret Service surveillance video shows.

Zoom in: The encounter with Wien — 24 hours after the assassination of Kirk, a friend of the Millers — was enough for investigators to think the activist had violated Virginia's law against doxxing and a similar federal statute.

• The FBI sought a warrant for Wien's phone but was twice rebuffed by Vaala (the second time came Wednesday).
• So the Millers went to Virginia State Police, which took the case to a local judge, Judith Wheat, who authorized the warrant on Oct. 1.

Between the lines: State and federal law enforcement officials say the search warrant's prompt approval reflected how routine the request was. They say it stands in stark contrast to how Vaala handled the same request.

• When police seized Wien's phone Oct. 1, she spoke with FBI officials who then alleged that she misled investigators, according to a court filing described to Axios. Based on that, the FBI asked for another search warrant, which Vaala denied.
• Vaala contributed to the presidential campaigns of Presidents Obama and Biden before her appointment to the bench in 2022.

The intrigue: The Wien case took a partisan turn Oct. 2, after the locally elected Arlington prosecutor, Democrat Parisa Dehghani-Tafti, reacted negatively to the FBI's involvement and sided with the defense in calling for limits on the search warrant.

• The state judge then amended her warrant to limit the search and the sharing of information with the FBI.
• Deghani-Tafti's Facebook page has posts critical of Stephen Miller and the Trump administration. On Instagram, she follows ANUFH, which Wien is a member of and that's referred to in the Miller flyer.
• Dehghani-Tafti told Axios she has "performed my duties with integrity and objectivity, and I continue to do so. I have acted in every way to uphold the rule of law."

What they're saying: "A prosecutor is usually on the same team as the investigators trying to make a case. But in this case, it's the opposite. She's been stymying the investigation, it appears," said Richard Cullen, counselor to Virginia Gov. Glenn Youngkin (R), who was brought into the case along with Virginia's Attorney General Jason Miyares' office.

• "In all my years, I've never seen anything like the way this case is being handled," said an investigator involved with the case.

The other side: Wien's attorney, Bradley R. Haywood, said Miyares' office shouldn't be involved and was raising "hogwash" arguments to justify intruding into the case.

• "No charges have been brought. No subsequent search warrants have been sought or been issued," Haywood said, adding that Wien wants her phone back. "State police are unlawfully holding this property."
• Wien didn't commit a crime, he said. "It could not be clearer. This is protected speech."