Thanks to all of you who followed along with the liveblog or commented! I enjoyed covering the event for you.
As predicted, this turned out to be an easy case—so easy that the government’s lawyer barely had to say two words. There was really no answer, on a doctrinal level, to the judge’s observation that the MLAT forbade private actions, and on a practical level, there was no answer to the judge’s observation that even if he allowed that McIntyre and Moloney had standing, he had already weighed the various considerations and found that the interviews ought to be produced. McIntyre and Moloney offered to produce evidence from others engaged in oral history projects attesting to the importance of confidentiality in their work, but the judge responded that he knew oral history was important and that he had already taken that point into account in making his earlier decision.
So where are we now? Here is my understanding of where the case stands.
- Boston College’s Motion to Quash (First Subpoena). The judge has denied the motion to quash the first subpoena, the one directed specifically at the Price and Hughes materials. Boston College has not appealed.
- Boston College’s Motion to Quash (Second Subpoena). After an in camera review, the judge made a written order specifying the interviews that must be turned over to the UK authorities. The government has moved for reconsideration of the order, which declined to require a review of transcripts or recordings that had not yet been reviewed for responsiveness. Boston College may choose to appeal this order.
- McIntyre & Moloney’s Motion for Leave to Intervene. The judge denied McIntyre & Moloney’s attempt to intervene in the motion to quash case. They took an appeal, and obtained a stay of the judge’s decision requiring turnover of documents to the UK. The appeal is pending.
- McIntyre & Moloney’s complaint against the Attorney General. The judge dismissed their complaint today. They will likely take an appeal, and the appeal will probably be consolidated with their appeal of the denial of their motion for leave to intervene.
The briefs in the appeal will be filed in February, and argument will likely be held in March. It will be interesting to see whether, in the time they have, McIntyre and Moloney can pursue their political remedies (asking members of Congress to pressure the Department of Justice, for example, to cease cooperation with the UK, although I think that outcome must be unlikely) to conclusion. As I’ve been saying for a while, their real arguments are political arguments, not legal arguments. It will also be interesting to see whether Boston College appeals from the order regarding the additional transcripts to be turned over.
One interesting coda: the judge seemed to hint that among the materials the parties had submitted under seal are documents showing what the Attorney General did to comply with what Moloney and McIntyre say are his obligations under the MLAT. Of course, there’s no way to know whether that’s so.