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 has filed a petition seeking a rehearing before the panel of the Court of Appeals for the First Circuit that decided the most recent Belfast Project appeal.
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.
The First Circuit has issued what may well be the last opinion, in the US courts at least, in the Belfast Project case. Readers who would like to get up to speed on the case can find my prior coverage under the “Special Coverage” menu at the top of the screen.
The main point in the decision, which was a partial victory for Boston College, was that Judge Young had abused his discretion by ordering the production of many, but not all, of the interviews. This part of the decision is pretty unsatisfying, because the interviews themselves were submitted under seal. So we cannot judge for ourselves whether the First Circuit’s criticism of Judge Young’s decision was well-founded. But the First Circuit was clear on an important underlying point: the subpoenas called for the production only of interviews that related to the McConville murder and disappearance.
The court held, correctly, that it had the power to quash a subpoena, even if the subpoena was issued pursuant to a request under an MLAT. The Ninth Circuit had reached this result in In re 840 140th Ave. NE, 634 F.3d 557 (9th Cir. 2011), the case of the day from February 2, 2011. But the Ninth Circuit case stands for the proposition that the court has the power to refuse to enforce a subpoena that is unconstitutional. The First Circuit’s discussion of whether it should exercise its power turned only on whether each of the interviews was within the scope of the subpoenas, which is, from my perspective anyway, not a very interesting question. I don’t think anyone ever seriously argued that the government could require the production of any document whatsoever, whether or not it was within the scope of its own subpoenas. The only interesting point to note here is that the court rejected BC’s argument that because the case raised First Amendment sensitivities, a heightened standard of relevance applied. No, said the court, relevance and responsiveness to the subpoenas was to be judged under the ordinary rules applicable in all cases.
Boston College has the right to seek a rehearing en banc, or to seek review by the Supreme Court, or both. Supreme Court review seems exceedingly unlikely. Judge Boudin took senior status while the case was pending and did not participate in the decision, and while the case was pending Judge Kayatta was confirmed by the Senate. Thus the case was decided by two of the five judges in regular active service. Because a majority of those five judges were not on the panel, a petition for a rehearing en banc is not plainly futile, as it was in Moloney & McIntyre’s case. But a rehearing en banc remains a long-shot in my opinion.