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.