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.¹Indeed, the issue only could arise because of the unusual posture of the case. Since BC had already produced the documents to the court for an in camera inspection, the importance of relevance to the court’s handling of the subpoena was obscured. Suppose that BC had not provided the interviews for in camera inspection but had simply produced those it thought were within the scope of the subpoena. If the government disagreed and thought that more interviews were relevant, it would have to seek relief from the court, which would plainly have had the power to order additional production or not, depending on its decision on relevance and responsiveness. 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.

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  Indeed, the issue only could arise because of the unusual posture of the case. Since BC had already produced the documents to the court for an in camera inspection, the importance of relevance to the court’s handling of the subpoena was obscured. Suppose that BC had not provided the interviews for in camera inspection but had simply produced those it thought were within the scope of the subpoena. If the government disagreed and thought that more interviews were relevant, it would have to seek relief from the court, which would plainly have had the power to order additional production or not, depending on its decision on relevance and responsiveness.