'Gobsmacked': Trump's DOJ seeks to dismiss lawsuit alleging Biden censorship by proxy

President Trump's Justice Department no longer seeks a stay of a lawsuit by former New York Times journalist Alex Berenson against Biden administration officials for alleged censorship by proxy for his COVID-19 views, and wants it dismissed by U.S. District Judge Jessica Clarke on the same grounds as she dismissed Berenson's claims against private defendants including Pfizer CEO Albert Bourla last month.

U.S. Attorney for the Southern District of New York Jay Clayton made the request in a letter Friday to Clarke, leaving Berenson "gobsmacked," as the independent journalist wrote in his newsletter Monday.

"Since 2022, I’ve built a long record of how the Biden administration violated my First Amendment rights in 2021, and the rights of all Covid unvaccinated people to hear me" on the platform then known as Twitter, even finding "as close to a smoking gun" as possible last fall, Berenson wrote. 

"Now the Trump administration is basically saying it doesn’t care about either - and standing with Pfizer, just days after forcing out Dr. Vinay Prasad," he said, referring to the gene therapy regulator who left following outrage over his pressure on Sarepta to pause distribution of its Duchenne’s Muscular Dystrophy drug pending investigation of three patient deaths.

Clarke dismissed Berenson's claims against Bourla, former Biden White House senior advisor Andy Slavitt and Scott Gottlieb, a Pfizer board member who formerly led the first Trump administration's Food and Drug Administration, on July 14 and didn't give him a chance to replead.

Berenson doesn't have legal standing for a First Amendment claim against Slavitt because "he cannot obtain any remedy (injunctive relief or damages under Bivens) against Slavitt," and pertaining to all private defendants, "he has not sufficiently alleged any discriminatory animus against a recognized protected class" and "has not sufficiently alleged facts demonstrating an underlying breach of a contract" under New York law, Clarke wrote.

Trump's DOJ had earlier agreed to stay the lawsuit against federal defendants while it decided whether to change its predecessor's approach, but ultimately decided to keep it largely the same, arguing "all of the reasoning" in Clarke's July 14 order "also applies to the federal individual capacity defendants and supports dismissal of the claims against them."

Clayton made one change, flagged by Berenson, no longer arguing that Berenson's suit "fails to state a plausible First Amendment claim."

Trump's executive actions mean there's no relief left for Berenson, Clayton claimed, citing the order against federal actions and taxpayer resources that "would unconstitutionally abridge the free speech of any American citizen," such as pressuring social media companies to "moderate, deplatform, or otherwise suppress speech."

The order also said the administration would "identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech" and ordered the attorney general to review the past administration's activities and submit a report with "recommendations for appropriate remedial actions," Clayton said.

"This hurts," Berenson wrote. "I cheered the administration’s first-day executive order criticizing Biden’s censorship efforts. I believed Donald J. Trump wanted to defend free speech. Instead his administration has sided with Biden and the same federal court in New York that made his life so difficult. I’d like to believe he just doesn’t know about the suit, but I have done everything possible to try to tell him."