Government's subpoena effort fails

It's always good to see this government lose a fight in court. Yesterday, they backed away from their attempt at prior restraint on publication through the use of subpoenas.

Federal prosecutors in New York yesterday withdrew a subpoena to the American Civil Liberties Union that had sought to retrieve all copies of a classified document.

In an opaque and defensive four-page letter to the judge in the case, the prosecutors said they were acting “in light of changed circumstances” and their determination that “the grand jury can obtain the evidence necessary to its investigation from other sources.”

Another factor may have played a role. A transcript of a closed hearing in the case that was unsealed yesterday suggested the government was going to lose.

"Another factor may have played a role." If that isn't an understatement, I don't know what is.

...The effort to retrieve all copies of the document was a novel and, according to many legal experts, improper use of a grand jury subpoena. The subpoena cited a provision of the espionage laws that requires people in possession of some sorts of national security information to return it to the government if asked. But the A.C.L.U. said that the document at issue did not qualify and that, in any event, a subpoena was the wrong way to enforce the law.

In a transcript of a closed hearing in the case on Dec. 11 that was unsealed yesterday, Judge Jed S. Rakoff of Federal District Court in Manhattan seemed to indicate grave reservations about the tactic.

“What’s the authority for saying that a subpoenaed party can’t keep a copy of any document that they produced to the grand jury?” Judge Rakoff asked Jennifer G. Rodgers, an assistant United States attorney. Ms. Rodgers did not provide a direct answer, and yesterday’s letter withdrawing the subpoena did not address the question.

Later in the hearing, Judge Rakoff compared the situation to the Nixon administration’s effort to stop The New York Times and The Washington Post from publishing a secret history of the Vietnam War.

“There seems to be a huge difference,” Judge Rakoff said, “between investigating a wrongful leak of a classified document and demanding back all copies of it, and I’m old enough to remember a case called the Pentagon Papers.”

In yesterday’s letter, Ms. Rodgers suggested that the A.C.L.U. had set up the government, creating a fight that could have been resolved informally.

Oh, don't you feel sorry for the poor government. They got set up.