First, some procedural stuff. Under FRAP 40(a)(3), no response to a petition for a panel hearing is permitted without a request from the court, though the rule goes on to say that “ordinarily rehearing will not be granted in the absence of such a request.” Similarly, under FRAP 35(e), “no response may be filed to a petition for an en banc consideration unless the court orders a response.” So we should not expect to see any additional papers filed before the court rules on the petition. If the court does call for a response from the government, it will be a sign that something surprising is potentially afoot. I have already given reasons for thinking that the small size of the First Circuit bench makes en banc review very unlikely. Under FRAP 41(d)(1), the filing of the petition stays the mandate, unless the court orders otherwise.
Now what about the merits? Here are a few observations:
- Much of the petition is taken up with an argument that under Rule 17 of the Federal Rules of Criminal Procedure, the court can quash an unreasonable or oppressive subpoena, and that they had been denied the opportunity to show unreasonableness or oppressiveness. When I read this, I was puzzled—it didn’t sound that familiar. So I took a look at the earlier briefs, or more precisely, at the tables of authorities in the earlier briefs. In the new brief, Rule 17 is cited passim, that is, on so many pages of the brief that it’s impractical to list them all in the table. But in the main brief and the reply brief, it isn’t cited once! So I don’t think the First Circuit is going to pay much heed to application of a rule that Moloney & McIntyre didn’t even cite in the main appeal.
- The petition looks to Justice Powell’s concurrence in Branzburg for support. I think Judge Sentelle does a very good job of explaining why Justice Powell’s concurrence shouldn’t be mistaken for the holding of the case. But more to the point, the main claim they press about Branzburg is that at a minimum the case creates a privilege in cases of bad faith by prosecutors. But the First Circuit already disposed of that claim: “This suit does not fall within that premise. There is no plausible claim here of a bad faith purpose to harass.” It’s hard to see the court revisiting that conclusion, particularly where the evidence sought seems, on the face of it, relevant to a serious crime. Now, one may not think the crime should be prosecuted given its political context, or one may think that the British government is selectively prosecuting cases on one side of the Northern Irish dispute but not the other, or one may think that the government waited too long to investigate, or whatever, but none of this seems to rise to the level of “bad faith purpose to harass,” or so it seems to me.
The likely next happening in the case is the hearing on Boston College’s appeal on September 7. I’ll be there, work permitting, and I’ll let you know how it goes.