Yesterday Ed Moloney and Anthony McIntyre filed their reply brief in their appeal of Judge Young’s denial of their motion for leave to intervene and his dismissal of their claims against Attorney General Holder. Much of the brief is taken up with the intervention issue, which is puzzling to me. If I were one of the appellate judges, here’s what I would say to Moloney & McIntyre’s lawyers at the oral argument: After your motion for leave to intervene was denied, you filed a new complaint that asserted all of the theories that your proposed intervenors’ complaint asserted (N.B., I haven’t checked back with the documents to verify that the two complaints had all of the same theories). You lost on the merits. Maybe the judge was right and maybe he was wrong, but why should we allow you to make those arguments twice?

On what I think is the key question for M&M’s MLAT claims, namely the express provision in the MLAT that bars private actions, M&M don’t have anything new that in my view could overcome the treaty’s plain language. They argue that the treaty imposes non-discretionary duties on the Attorney General. I think they are wrong about this: Article 18(1) does provide that the parties “shall” consult, but only “at the request of either.” It seems pretty clear that no consultation is required in every case. M&M also point to Article 1bis, which provides that “Assistance shall not be available for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.” But this hardly seems to put a non-discretionary duty on the Attorney General. In any event, even if the Attorney General has a clear duty under the treaty, it is not one that M&M can enforce, since it seems clear under Article 3 and under general principles of standing that M&M lack standing to enforce the treaty’s provisions.

M&M argue that the courts should have as much discretion to refuse to issue a subpoena the Attorney General requests under the MLAT as they have to refuse to issue a subpoena an interested person seeks under 28 U.S.C. § 1782. I think M&M are wrong about this, but even if they were right, it seems to me that it would be difficult to justify refusal to issue this subpoena even under the § 1782 standards. The factors to be considered all seem to weigh in favor of the subpoena (assuming that there is no evidentiary privilege—if there is a privilege, then the privilege will trump the subpoena whether considered under § 1782 or under any other statute):

1. Is the target of the subpoena a party to the foreign proceeding? No. Boston College will not be a party to any criminal proceedings in the United Kingdom, so the UK could not simply use its own discovery mechanisms to get the information it seeks.
2. Would the foreign tribunal be receptive to the evidence sought? It seems to me that since it is the UK government seeking the evidence, it would be wrong to second-guess to UK’s own views as to what evidence is or is not relevant to proceedings in its courts.
3. Is the UK trying to circumvent limits on UK discovery? I don’t think anyone has suggested this is so.
4. Is the discovery unduly burdensome? I don’t think so. The amount of material that was within the scope of the subpoena was not very much compared to discovery in many cases, which can be voluminous

The main issue in the case, I think, is the First Amendment issue: does the First Amendment give Boston College a basis to refuse to turn over the documents, because they were gathered as part of an oral history project? I think this is really BC’s argument to make, not M&M’s, but as I have said repeatedly, I think the court could come out either way on this.

A last note, which is really not substantive: please, please stop using “subpoenae” as the plural of “subpoena.” I know Judge Young started it. But “subpoena” is not a real Latin word, so I don’t see why we should give it a Latin plural. If you need authority for this, just look at Black’s Law Dictionary.

Photo credit: Patricia Drury (license)