The Court of Appeals for the First Circuit has denied the government’s petition for a panel rehearing in the Belfast Project case. As I noted in my post on the petition, the government was not seeking to change the outcome of the case. Rather, it objected to the panel’s reasoning to the extent the panel asserted that the courts had the power to quash a subpoena issued pursuant to a request under the mutual legal assistance treaty. I opined that the court was unlikely to grant the petition, and so it was, though there is no way to know the reasons for the denial.
The First Circuit had called for a response to the petition from Boston College, which indicates that the panel had at least some interest in the government’s arguments. Under FRAP 40(a)(3), no response to a petition is permitted unless the court asks for one. It was somewhat odd to require BC to respond to the petition, since BC did not, as far as I can tell, have a true stake in the outcome of the petition. But I suppose there was no one else to whom the court could look. In any event, I did not comment on BC’s response when it was filed, so in the interests of completeness I am posting it now.
The government is not asking the panel to modify the actual result of the case, i.e., it is not asking that more of the interviews be produced. Instead, it is complaining about some of the reasoning in the decision. The panel held that the district court had the power to quash a subpoena issued under 18 U.S.C. § 3512 in response to an MLAT request. I think the chance of success is fairly low here. For one thing, the chance that any motion for a panel rehearing will be granted is small. But more specifically, I think the panel went out of its way to hold that it had power to quash a subpoena, and it seems unlikely to change its mind. The court was asserting, correctly, that it is not just a rubber stamp in the MLAT process. Now, having said that, I will say that my view of the grounds on which the courts should quash MLAT subpoenas is pretty narrow; I think courts have the power to quash subpoenas if enforcement of the subpoenas would be unconstitutional, but that’s about it.
I think what the panel was doing was asserting the judiciary’s power vis-à-vis the executive in a case where it was not actually exercising the power (because the court had already decided that the subpoena was constitutional)—a Marbury v. Madison-type maneuver.