Caught and Released

The State Attorney forecloses but does not exonerate.

As you may have heard, the Miami-Dade State Attorney's Office has closed its preliminary inquiry into Ariel’s phishing operation. The May 19, 2026 memo, signed by ASA Tim VanderGiesen and Chief Assistant Howard Rosen, concludes there is insufficient evidence of criminal activity to warrant further inquiry and declines to issue subpoenas to confirm what we already know.

Like I told the Miami Herald, this news is mildly disappointing but unsurprising. Sure, it would have been deeply satisfying to see the tables turned on Ariel, the James Patterson of anonymous ethics complaints, just for once, but as every informed observer told me over the past year, the State Attorney was never going to run with this. That office is notoriously (and perhaps justifiably) loath to wade into matters that are even tangentially political unless they’re simply too big to ignore, not to mention the fact that taking this one on would expose edge cases regulators and prosecutors alike typically prefer to leave unexplored.

This doesn’t mean the close-out was wrong as an exercise of agency discretion. It just means it should not be read as a pure and disinterested application of the law.

Respectfully, sir, I disagree

Let me say upfront that I appreciate that VanderGiesen didn't phone it in here. Well, let me qualify that. He didn’t phone in the memo. He definitely phoned in the broader inquiry. Apparently, his office interviewed the City Manager and the Chief of Police, neither of whom is a custodian of anything relevant. But it did not reach out to the plaintiff in the John Doe lawsuit who actually has the underlying records. It did not, for that matter, reach out to me—the person who broke the story and has been documenting it for the better part of a year. The Miami Herald managed to find me. The State Attorney's Office, somehow, could not.

Still, the memo itself is carefully written and the legal framework he applies is defensible on its face. I just think he got it wrong, particularly on the public records question. And I think the way he got it wrong is worth walking through, because it illustrates how a defensible framework, applied without proper engagement with the facts, can produce a conclusion the facts don’t actually support.

VanderGiesen concludes that the polling records are not public records because, in his formulation, there was nothing connecting Ariel’s activity to the City. He writes:

…public officials are not precluded from speaking about public affairs in their personal capacity. Every conversation or action does not become “in connection with the transaction of official business” just because the person is an office holder. For example, when an incumbent elected official runs for re-election, the elected official is not acting in an official capacity while campaigning even though he or she may be discussing city related matters. What if, in the instant case, the polls said, “paid for by the committee to re-elect Commissioner X”?

This is true but irrelevant. It defeats a straw man. No one is claiming that "every conversation or action" of an elected official constitutes the transaction of official business. The concern is specifically with Ariel's People Count USA surveys, none of which could reasonably be considered speech concerning generic "public affairs" or mere "discussions of city related matters." They were two-way communications regarding specific items pending before the commission, e.g. annexation and November elections (and who knows what else). They were disseminated while commission votes were pending. More importantly, they were sent (by Ariel himself) to his colleagues on the commission. They contained multiple pages of questions, replete with dialogue response boxes, designed to both probe and influence the recipient’s thinking on items Ariel was about to vote on.

Imagine for a moment that instead of a push poll, we were talking about an ordinary email sent by a member of the commission to each of his colleagues on the dais. Imagine that email contained all the substance of Ariel's polls, all the same statements, questions, and response options on items pending before the Commission. Would that email constitute legitimate private speech about public affairs? Would it be considered an innocent, generalized statement regarding city-related matters? Would any elected official in his right mind ever send such an email?

Of course not. Sunshine Law prohibits a commissioner from soliciting his colleagues' substantive positions on matters pending before the Commission outside a public meeting, and the hypothetical email does exactly that. The situation gets infinitely worse the moment we add the element of deception, with the sending commissioner concealing his identity to dupe his colleagues into thinking they are responding to an independent party rather than a fellow commissioner.

That kind of communication is exactly what the Sunshine Law is meant to reach, whether or not any colleague was foolish enough to reply. And because the Sunshine Law identifies inter-commissioner communications on pending business as governmental in character, the records of that activity meet Chapter 119’s test for public records as well.

This, in essence, is the public records argument.

Note that this doesn’t create a slippery slope where every opinion poll an elected official happens to receive automatically becomes a public record. The overwhelming majority of polls clear no such bar, because the overwhelming majority of polls are not what we are dealing with here. Ariel's surveys were sent by a sitting commissioner. They were directed in part to his colleagues on the dais. They asked substantive questions about specific items pending before the Commission, while votes on those items were active. They invited open-ended responses through dialogue boxes. And they were engineered to tie individual responses, including those of fellow commissioners, back to real identities. That combination is what brings the records within Chapter 119.

This thought experiment exposes the category error at the heart of VanderGiesen's analysis. City commissioners are not permitted to solicit their colleagues’ substantive positions on those votes outside of public meetings. That prohibition doesn’t disappear because the commissioner doing it decides to format his inquiries as a multiple-choice questionnaire and slap the word “survey” across the top. Quite the loophole that would be, huh? Every Sunshine violation in Florida would be just one Survey Monkey template away from being reframed as private opinion research.

The prohibition also doesn't disappear because the commissioner sent the same instrument to thousands of residents alongside his colleagues. Burying a prohibited communication in a larger distribution does not unbury it. The colleagues still received it. The substantive solicitation still occurred. If anything, the broad distribution makes the deception more elaborate, not the violation more excusable.

Political polls and surveys are not categorically exempt from public records, and they are not categorically private speech. What they are depends entirely on what’s in them, who they’re sent to, and what they’re designed to do.

This is where VanderGiesen's own authority works against him. He cites Lindke v. Freed for the unremarkable point that elected officials can engage in private polling. What he overlooks is what Lindke actually requires, namely that an official's communications be analyzed by what they are, not by what they call themselves.

The Supreme Court was quite explicit on this. The inquiry under Lindke is functional and fact-intensive. It looks at the content of the communication, the audience, the context, and the purpose. It does not stop at the label.

VanderGiesen does not perform that analysis. He characterizes Ariel's communications as "polling" throughout the memo without examining what the communications contained, who received them, or what they were designed to do. A communication that functions as a Sunshine-evading inquiry to a fellow officeholder is not insulated by the fact that it uses a survey template and looks and feels like an opinion poll. He treats the label as if it answered the question. Lindke says the opposite.

Speaking of labels, it’s hard to overlook the irony of VanderGiesen’s rhetorical question: “What if, in the instant case, the polls said, “paid for by the committee to re-elect Commissioner X”?

Allow me to answer that, Mr. VanderGiesen. If Ariel's polls had carried that disclaimer, they would have identified the speaker, located the communication within Florida's campaign finance framework, signaled to recipients that they were looking at regulated political speech by a disclosed political actor, and triggered the obligations that come with it.

What the disclaimer wouldn't do is transform Ariel’s use of a fake identity to extract, among others, his colleagues’ positions on pending votes into innocuous private speech.

Make no mistake, any schmuck off the street is free to poll the public sans disclosure. But Ariel isn't some schmuck off the street. I mean, he is a schmuck, but not of the off-the-street variety. He's an elected official, and what he deployed weren’t opinion polls in any meaningful sense but rather Sunshine violations designed to look like opinion polls.

There are other issues with VanderGiesen's analysis I could harp on, but the most important remaining one is the circular reasoning that runs through the memo from beginning to end.

VanderGiesen's central conclusion is that the State cannot find sufficient evidence of a connection to official business to warrant subpoenas. He supports this by noting that the Mayor's complaint, interviews with the City Manager, and interviews with the Chief of Police did not establish such a connection. What he does not note is that none of those sources is the custodian of the relevant records. The City Manager cannot tell you what was in Ariel's surveys, neither can the Chief of Police.

The truth is no one other than Ariel can tell you what was in those surveys because he himself took them down within hours of my original exposé. Therefore, VanderGiesen's conclusion that the surveys were not connected to the City is a conclusion about something he never saw. One cannot evaluate evidence one hasn’t examined.

To put it another way, the records show no connection to the City because the records have not been examined. The records have not been examined because the State Attorney has not issued subpoenas. The State Attorney has not issued subpoenas because the threshold for doing so requires evidence of a connection to the City. Round and round we go.

And before anyone suggests the threshold for an investigative subpoena is some unmet high bar, let's be clear about what the standard actually is. Florida prosecutorial subpoenas at the inquiry stage operate under a reasonable-suspicion threshold, not probable cause. The memo itself acknowledges as much. What is already on the public record clears it with room to spare. A John Doe lawsuit tied the People Count USA operation to infrastructure connected to Ariel. The surveys were deployed to a list that included his colleagues on the Commission during active votes. They were taken offline within hours of exposure. And Ariel has refused to deny involvement for over a year. The reasonable-suspicion bar was cleared a long time ago.

Anyway, that’s enough about VanderGiesen’s memo. The whole criminal angle was fun to fantasize about, but it was never going anywhere. That’s just not how the machine works.

Besides, while the memo forecloses a criminal investigation, it does not exonerate. It is not a finding that the conduct was permissible, much less ethical. Taken at its very best, the most Ariel gets out of VanderGiesen’s analysis is that he didn’t commit a crime.

Well, I disagree, but let’s set that aside. Not being a crime is not the same as being right. Is a fifty-year-old man sleeping with an eighteen-year-old girl a crime? Nope. Is it gross? Absolutely.

That's Ariel in a nutshell. He took a position of trust and used it as a tool for the kind of conduct that, in any healthy society, ends careers. And judging by the way he has spent the last year running from this story, Ariel knows as well as anyone that it already ended his.

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PS: I had literally just put the finishing touches on this post when, lo and behold, one of Ariel's infamous statements landed in my inbox. In it, Ariel asserts that VanderGiesen's memorandum is "unambiguous" that the allegations against him were "baseless" and that "there was no wrongdoing. None." This, he tells us, is "not a matter of interpretation" but "a matter of fact."

As I covered in this post, there are a few problems with that. The memorandum does not find the allegations baseless. It does not find no wrongdoing. It does not even determine who conducted the polling—which in itself tells you all you need to know about how seriously the State Attorney took this matter. Still, VanderGiesen wrote, in plain English, "it is not necessary to determine who conducted the polling in the instant case." Thus Ariel, as usual, is full of shit.

The rest of the statement consists of Ariel’s usual hyperbolic counteraccusations, e.g. authoritarian tactics, suppression of dissent, weaponization of political machinery, destruction of reputations, etc., all of which is pretty rich coming from the guy who spent at least a year running a covert surveillance operation against his own constituents through a fabricated civic entity. Physician, heal thyself.

I'll leave you with this parting thought. If Ariel believes a single word of what he wrote, he should sue the ever living shit out of me. It is FAFO season, after all, and if I'm the smear merchant he claims I am, then Lord knows I deserve some finding out. While he's at it, he should run for reelection. And not just run—run specifically on this. He is, by his own account, the victim of a vast political conspiracy, of authoritarian tactics, of third-world levels of oppression and demonization. What a story! He should use it. Keep it front and center, every speech, every mailer, every door-knock, all the way to election day. Please, Ariel. I'm a resident. Put me first. Do it for me.