There is a brilliant article in the current issue of the Stanford Law Review, one of the most prestigious in America. Its past editors have included one Chief Justice of the Supreme Court, William Rehnquist and one Supreme Court Justice, Sandra Day O’Connor and a host of federal district judges, appeal judges and legal luminaries. An article like this, prominently featured in the December 5th edition, is not something to be ignored.
So what about the merits of the author’s, Stanford Law School student Will Havemann’s, argument? Havemann begins with a relatively standard account of the Supreme Court’s Branzburg decision. By “relatively standard account”, I mean the kind of account you could find in many law review articles and lower court decisions before the last few years. This account says, in short, that in Branzburg four justices held that there is no First Amendment reporter’s privilege to refuse to respond to a grand jury subpoena but that Justice Powell, who supplied the fifth vote, thought that there was some sort of privilege, based on a balancing of interests test, and that Justice Powell’s view correctly states the law. The problem with that view, as I wrote in August, is that in light of the DC Circuit’s decision in the Judith Miller case and the First Circuit’s decision in the Belfast Project case, it seems wrong on the merits. Now, maybe Justice Powell’s concurrence does control and the First and DC Circuits are wrong, but Havemann doesn’t defend that view, even though the premise of the second part of his article is precisely that Justice Powell’s view is right. Havemann acknowledges that the First Circuit may well have reached the right outcome, but he thinks the court made a mistake of law by not balancing interests a la Justice Powell. I think we cannot give much weight to this portion of Havemann’s argument insofar as he doesn’t justify his view about the meaning of Branzburg. Moreover, I think Havemann misses the force of Judge Lynch’s argument. As I read her decision in the Belfast Project case, she is saying that even if it is proper to weigh interests, Branzburg provides a stronger case for a privilege than the Belfast Project case does, and thus in light of Branzburg there is no privilege in the Belfast Project case a fortiori.
Havemann recognizes the policy implications of the First Circuit’s decision for future MLAT cases:
Mutual legal assistance treaties render this problem international in scope. If any country with whom the United States has an MLAT agreement may require the DOJ to subpoena confidential information on its behalf, endeavors like the Belfast Project could be annexed by foreign governments whose criminal justice interests differ substantially from our own.
But as he notes, the Attorney General has discretion to refuse to execute a request for assistance under an MLAT on public policy grounds. He does not defend the view that a court, rather than the executive branch, is the right institution to decide when it is appropriate to refuse to grant a request for judicial assistance from another government.
In short, Havemann’s piece is a well-written student article, but it should not change our underlying view of the case.