Thoroughly Reframed: The First Circuit Cuts Through the Haze

Start in the hallway, and look for little gestures.

A panel of judges from the First Circuit heard arguments today -- listen to them here -- in the pair of appeals filed by Belfast Project researchers Ed Moloney and Anthony McIntyre. But first there was a long wait, as the judges heard a challenge to the Defense of Marriage Act in a courtroom that had no open public seats. So everyone filing in for the arguments over the Boston College archival material stood around in a remarkably pleasant seventh-floor hallway, where the federal judiciary should open a bed and breakfast to take advantage of the awesome waterfront views.

Then the DoMA case ended, the courtroom emptied, and the people in the hallway filed in for the Belfast Project hearing. The result of that repopulation of an empty courtroom was clear enough. At one point, a judge asked a question that, as legal blogger Ted Folkman wrote shortly after the hearing, "sparked some laughter from the side of the courtroom where the Moloney & McIntyre partisans were sitting."

Like guests at a wedding, observers at the hearing lined up behind their sides: a team of lawyers from the U.S. Attorney's Office watched from the public seats on the center-right behind their colleague arguing the case, while (for example) the lawyers who wrote the ACLUM's amicus brief lined up on the left behind Eamon Dornan, the lawyer arguing on behalf of Moloney and McIntyre. Ed Moloney and Carrie Twomey, Anthony McIntyre's wife, sat up front on the left, behind Dornan.

Two lawyers attended as observers for Boston College: Associate Counsel Nora Field, and Jeffrey Swope, the outside lawyer the university hired to contestulate(*) the Belfast Project subpoenas.

Field and Swope? They sat to the right of the government lawyers.

"A Little Odd"

Now, about that laughter in the courtroom: It was triggered by an observation from Judge Michael Boudin, in response to the government's claims that Moloney and McIntyre have no interests in the case that aren't already represented by Boston College: "It's a little odd to be hearing how well Boston College represents these interests when they're not seeking to appeal the order to turn over the documents." Boudin was talking about the university's decision not to appeal a district court's order to give the government a set of confidential interviews with former IRA member Dolours Price, and yes: That's a line that merits laughter. Moloney and McIntyre are appealing the order, and Boston College isn't, but somehow Boston College fully represents the interests of Moloney and McIntyre.

But then Boudin kept going, turning to Smith's efforts to push away constitutional questions with repeated references to the mutual legal assistance treaty between the US and the UK: "And then you say they can't -- assuming they really had very serious First Amendment interests, somehow those would disappear because the treaty doesn't allow them to be raised. If those interests really existed, you'd think there must be some way to have them protected, regardless of what the treaty said, wouldn't you?"

By my count, Smith responded to the question with four seconds of startled silence.

It was that kind of day for her.

Let's Keep This Between Sovereigns

Smith had opened with an attempt to restrict the arguments the court would consider. "The issue here is much narrower than the appellants have presented it," she began. In its brief, the government had similarly tried to wave off whole areas of argument, insisting that the lawsuit filed by Moloney and McIntyre against Attorney General Eric Holder need not be discussed; rather, they argued, the court only needed to validate the decision of the district court to refuse Moloney and McIntyre the right to intervene in an earlier case involving the subpoenas. "Resolution of the question of whether denial of intervention was proper is dispositive of this consolidated appeal," they wrote.

But Chief Judge Sandra Lynch forced open the frame, rejecting the government's efforts to have a limited discussion. "Miss Smith," she said, "it would help me if you would actually frame your argument not in terms of the intervention, but in terms of the original action that these individuals brought. Because it does not necessarily follow from non-intervention that they didn't have a right to file their own action."  

Two minutes into her argument, Smith had her first hint of possible defeat: The court thought it "did not necessarily follow" that the resolution of the intervention was dispositive.

And so, Lynch continued, "that then leaves the constitutional claims," which she asked Smith to address, putting aside the question of standing. "What are your arguments under the First Amendment, here?"

Smith responded that there "is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest -- constitutional, common-law, or statutory privilege."

Then she tried to pivot, shifting the argument away from the people in the courtroom: If anyone in the matter has a First Amendment interest at stake, Smith argued, it would be Boston College. In other words, this isn't the time for this discussion, and let's skip the First Amendment stuff for now, but go ahead and ask me again when Boston College is here in June to argue its own appeal of another order from the district court.

It didn't work, and Lynch quickly cut her off. "Frankly, that seems to go to the standing issue, as opposed to the merits of the First Amendment claim. It may be primarily Boston College's claim. But they [Moloney and McIntyre] claim they will also be injured under both the First and Fifth Amendment."

Smith tried to shift the discussion again, saying that Moloney's affidavit to the trial court had not offered a detailed description of the chilling effect on research that the subpoenas would have. So again, Smith -- who had opened with a statement about the narrowness of the issues at hand -- was trying to push aside a set of legal topics she didn't wish to address: It isn't in the affidavits, so let's skip this part.

Lynch, who had sounded carefully bored throughout the discussion, briefly adopted a sharper tone. "I asked you to make some assumptions arguendo, and then get to -- please... Assume they have a sufficient interest in this action to raise the constitutional claims. Just hypothetically assume that. What is your response as to why there are no constitutional claims that can be plausibly stated here."

Long silence. Then, from Smith: "Well, because there is not one that would override the purpose underlying a treaty between two sovereign nations."

Our treaty trumps your Constitution.

"It Might be Genocide"

And then came Boudin's questions about whether "there must be some way" to protect a researcher's constitutional rights, "regardless of what the treaty said." By this point, it was clear in the courtroom that Smith was on the dark side of Planet Success, and she did what government lawyers do when they're in trouble: She tried to dire things up a bit, saying that "this is a murder investigation, but it might be terrorism, it might be genocide, and to say that could be protected merely by a criminal confessing to an academic in an oral history project, the world will never get that evidence, and..."

She didn't get to finish, because a judge cut her off, but note the maneuver, here: In case of fire, pull genocide reference. But your honor, are you trying to create a category of legal privilege for the Holocaust!?!?

In any event, Smith had also invented her own reality: In the case of terrorism or genocide, as in the murder investigation at hand, the confession to academics doesn't mean "the world will never get that evidence." The evidence doesn't vanish into a vault; just a copy of it does. It still exists in the world where the academic researchers found it. The point is that government, rather than getting the evidence from the academics, can go get the evidence from the source. They can investigate, rather than borrowing an investigation from someone else.

Finally, again from Lynch, came the really crucial question, and academic researchers, watch this one closely: "Are you arguing then that there is a per se rule that it is never, when it involves a criminal prosecution, there is never any possibility of an academic privilege? ...It's not clear to me whether you are arguing that there is an automatic rule that the First Amendment can never trump a criminal prosecution, or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override any First Amendment claim being made." 

Bright flashing lights, here. Look closely at that question, and remember that this exchange will result in case law.

Smith's answer: "We're certainly saying that here there was nothing that could trump that, and also saying that in most cases it wouldn't. I can't think of where it would."

"There's Not a Privilege to Your Safety?"

 
Then Judge Juan Torruella got his turn to direct a few exasperated sounds at Smith, asking why the language of Rule 24 wasn't helpful to Moloney and McIntyre. Because, Smith said, they don't have "a recognized privilege" in the matter.

"There's not a privilege to your safety?" Torruella asked. A better writer could convey his tone of voice, but let's just say he didn't seem to be buying it.

And then Lynch noted that she had looked at the cases the government had cited in its brief, "and it seems to me almost all of them apply in the immigration context and have to do with plenary congressional power over who enters the country. This case is a little bit different. I found no case that established the sort of absolute rule that your briefing suggested the case law established."

Struggling to recover the narrow frame she wished to place around the case, Smith closed the insistence that, "under the MLAT, there's a very narrow inquiry."

Lynch sounded patient in the way a grade school teacher struggles for that effect at the end of a playground fight between children: "We're not under the MLAT. We're under the federal Constitution."

Then, with the court having refused her framing -- and with a judge telling her that the case law she cited doesn't support the argument she made -- Smith sat back down. As the court concluded the hearing, a cluster of lawyers and reporters gathered around Moloney, Dornan, and Twomey, who were all unmistakably pleased by the whole thing. They all spilled out into the hallway, then hung out in the hallway a bit, then went downstairs and took questions.

I looked around to see the demeanor of the lawyers from the U.S. Attorney's office and Boston College, but their demeanor was not in evidence: They were gone as soon as the gavel fell. They sat on the same side and hustled away as a unit, grouped at the beginning and linked at the end.

Appropriate.

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(*Contestulation: The blurry ground between contesting and capitulating. A useful word for observers of Boston College. In the contestulational paradigm, the word "quash" takes on a new meaning, as in, "We'll quash those interviews right over to the courthouse, your honor.")