On Friday Ed Moloney and Anthony McIntyre filed their petition for a writ of certiorari in the Belfast Project case. The filing of the petition extends Justice Breyer’s stay of the First Circuit’s mandate at least until the Supreme Court decides whether to grant the petition and hear the case on the merits.

The petition raises two questions for review. First, did the First Circuit deny M&M their right to be heard in a way that conflicts with the Second Circuit’s decision in New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006), or various Supreme Court decisions? Second, did the First Circuit err in holding that the Intel factors do not apply when a court is faced with a request for judicial assistance pursuant to an MLAT under 18 USC [section] 3512?

I am as puzzled as ever by the first argument. What can M&M mean? Suppose you and I were best friends and you confessed to me that you had committed a crime in the UK after I promised to keep your secret, and then the government, acting at the UK’s request under the MLAT, issued a subpoena to me, and suppose I resisted the subpoena and made a First Amendment argument. Friendship is socially useful, I said, and there is an important societal value in allowing friends to confide in one another without fear that they would be turned into agents of the state for evidence-gathering. And so I ought to have a privilege to refuse to disclose your confession. This is the same kind of argument M&M make, and indeed, the same kind of argument that justifies most modern evidentiary privileges, though of course I’ve picked an example that is obviously weaker than M&M’s argument. I sue to prevent the government from compelling my testimony. The court reads my complaint and grants the government’s motion to dismiss without hearing evidence. Would anyone say that my First Amendment or Due Process rights had been violated? I think the answer has to be no, because it is obvious that I failed to state a claim on which relief can be granted. This is just how common law pretrial procedure works. I have no right to get past the pleading stage if, assuming the truth of every fact I assert in the complaint, I cannot prevail as a matter of law. Here, M&M argued that something about their role as oral historians justifies them in refusing to comply with the subpoena. If the courts determine that that is wrong as a matter of law, then why should they be entitled to an evidentiary hearing?

The clearest sign that this argument is wrong is that M&M do not identify any facts that they would have offered that they did not already allege in their complaint. They argue that they should have been allowed to put on evidence that the UK was acting in bad faith and for an improper purpose and that the subpoena threatened their personal safety. But they made those arguments to the court, and the lower court’s decision was, in effect, a holding that even if what M&M said were true they were not entitled to relief. Again, it’s difficult to see what more they were entitled to from a procedural point of view. It could be that the First Circuit erred in holding that nothing M&M had claimed justified their fears for their safety, for example, or that nothing justified their claim that the UK had acted in bad faith, but it’s difficult to see the Supreme Court granting review on that basis, as it does not sit to correct the errors of the lower courts.

Let’s look at Gonzales, the case that, according to M&M, creates the circuit split. Gonzales holds that there is a right to bring an action for a declaratory judgment to challenge a government subpoena on First Amendment grounds. But I don’t see that Gonzales holds that the plaintiff in such a case always has a right to an evidentiary hearing. I see no conflict between Gonzales and this case, where M&M did bring an action. The courts in Boston dismissed their action not because they had no right to bring it, but because their substantive First Amendment theory failed as a matter of law.

The second issue is novel—M&M want to require courts applying 18 USC [section] 3512 to undertake an Intel analysis, as they would under 28 USC [section] 1782. I think there is a problem with the premise of the argument. The premise is that the Intel factors are always relevant in [section] 1782 cases. But is that right? In most cases, where a foreign litigant makes the [section] 1782 application, the answer is yes. But what if the foreign litigant, instead of approaching the US court directly, obtains a letter of request from the foreign court under the Hague Evidence Convention? In that case, the United States is obligated by treaty to execute the request to the extent required by the Convention, and so I question whether it is appropriate for a court to deny the request on discretionary Intel grounds, e.g., the foreign court’s receptivity to the evidence, evasion of foreign proof-gathering restrictions, etc. Of course, the court always has the power to deny a request that is unconstitutional or that would invade an evidentiary privilege. But I don’t think it’s proper to analogize an ordinary [section] 1782 request with a [section] 3512 request. The correct question is how a [section] 1782 request made by a foreign judicial authority under the Hague Evidence Convention would be treated. In any event, I think that In re Erato (2d Cir. 1993) shows why M&M’s argument fails. There, the court expressly held that a [section] 1782 analysis is inappropriate in an MLAT case because the MLAT involved (there the US/Netherlands MLAT) was self-executing and overrode any contrary requirements of [section] 1782.

I am not in the Supreme Court prediction business, but it remains my sense that the Court will deny cert. and that if it grants cert. M&M’s claims should not succeed. But I’ve been wrong before!