The U.S. Justice Department has withdrawn its subpoena of Indiana raw dairy farmer David Hochstetler to appear before a federal grand jury.

He was scheduled to testify tomorrow in Detroit, in connection with an outbreak of illnesses linked by public health officials, including the U.S. Food and Drug Administration, to the milk of his Forest Grove Dairy. But yesterday he received a certified letter saying that his subpoena was being withdrawn. 

Ross Goldstein, a U.S. Justice Department trial attorney, noted in the letter that Hochstetler had previously stated to him that Hochstetler wouldn’t answer questions or produce documents based on his Fifth Amendment constitutional rights. “Based on your representation that Forest Grove Dairy is a sole proprietorship and that you refuse to produce any responsive documents based on the assertion of rights guaranteed by the Fifth Amendment of the U.S. Constitution against self incrimination, I write to advise you that you are released from the subpoena until further notice.” He was advised to retain all documents in the case.

Sheriff Brad Rogers of Elkhart County, IndianaWhile it’s not clear exactly what kind of maneuvering led to the federal pullback, one factor working for Hochstetler may have been the efforts of his county sheriff, Brad Rogers of Elkhart County. He wrote a letter  to the Justice Department warning it not to conduct inspections of Hochstetler’s farm without a warrant from a local judge. In the process, he got into a debate over the limits of federal power and the U.S. Constitution with the Justice Department’s Goldstein.

Earlier this month, Rogers emailed Goldstein that there had been “a number of inspections and attempted inspections on (Hochstetler’s) farm…” He warned that “any further attempts to inspect this farm without a warrant signed by a local judge, based on probable cause, will result in Federal inspectors’ removal or arrest for trespassing by my officers or I.”

That prompted Goldstein to cite the U.S. Constitution’s “Supremacy Clause,” which he said “has been interpreted since the earliest days of this nation to mean that federal law trumps state law whenever the two conflict.”

Goldstein argued further that the Federal Food Drug and Cosmetic Act allowed federal agents “to enter Mr. Hochstetler’s property…without a warrant at all–pursuant to a long line of federal cases…” Moreover, he warned the sheriff that federal agents could arrest him– “that the ‘refusal to permit entry or inspection as authorized by section 374’ is in itself a federal criminal offense, which under certain circumstances is a felony punishable by imprisonment for up to three years…”

During an interview, Rogers responded to Goldstein’s argument, “When you assert that federal law trumps state law, it is a distortion of the intent, content and extent of the supreme law of the land–the U.S. Constitution-seen through a myopic and misunderstood view of Article VI, section 2 (The Supremacy Clause).”

He also asserted that “the Food, Drug, and Cosmetic Act could be deemed unconstitutional if and when challenged vis-a-vis the Tenth Amendment juxtaposed with The Commerce Clause.”

He added that “our form of government was based on the principle that all officials exist to secure ‘Life, Liberty, and the Pursuit of Happiness.’…Such ‘cosmetic’ regulations will never ‘trump’ those principles. The citizen in question is a good man and has committed no crime. He is an upstanding member of this community. He does not have to allow access to his property for the FDA to conduct random inspections.”

Aside from the sheriff-prosecutor debate, the affair had received publicity via this blog and an article I wrote for Food Safety News, detailing how extensive testing of Hochstetler’s milk in 2010 had shown no signs of campylobacter, and how FDA officials had targeted Hochstetler and another farmer, Richard Hebron, of Family Farms Co-op, in meetings in 2009.

The matter of Hebron and the grand jury is still up in the air. He was scheduled to testify before the federal grand jury with Hochstetler tomorrow in Detroit. He told me he is currently in the process of working with the Farm-to-Consumer Legal Defense Fund to submit documentation to the Justice Department that his farm also is not registered as a corporation or a cooperative, but is a sole proprietorship.

When I asked Hochstetler, who is Amish, whether he was relieved about the turn of events, he said, “I never got too excited about it. It is spiritual warfare between good and evil and if we have God on our side, we will win.”

The grand jury investigation of Hochstetler and Hebron is directly related to tomorrow’s Raw Milk Freedom Riders event in Wisconsin and Illinois.

The Raw Milk Freedom Riders are challenging the interstate ban on raw milk shipments, which is the federal regulation used to go after Hochstetler and Hebron. The event tomorrow will involve a group of Chicago mothers, acting as “agents” on behalf of other moms, traveling to Wisconsin to pick up milk at a raw dairy there and returning with it to a Chicago park, where a demonstration will be held. There’s a report on the demonstration as well in the current Food Safety News.

The FDA has failed to recognize agents acting on behalf of individual consumers as being outside the realm of the federal prohibition. The rally will be at Independence Park, 3850 West Irving Park Road, Chicago, IL. 60618, from 11:30 to 2.

One final reason to attend: you’ll get to meet Michael Schmidt, the raw dairy farmer who is traveling from Canada to attend the rally. Given all that is going on north of the border to stamp out raw milk, it’s pretty amazing that he would take time to come to come to this American rally. I hope to see some of you there.