Tom
Goldstein’s
life
was
almost
a
TV
show.
Now,
with
his
wild
trial
is
in
its
second
week,
the
drama
just
unveiled
a
First
Amendment
subplot.
As
Politico’s
Josh
Gerstein
flagged,
the
government
apparently
subpoenaed
Jeffrey
Toobin
and
fact-checker
Rudy
Lee
seeking
testimony
about
their
December
New
York
Times
Magazine
article
about
the
SCOTUSblog
founder-turned-defendant.
Toobin
and
Lee,
through
Ballard
Spahr,
moved
to
quash.
The
motion
makes
the
straightforward
case
that
dragging
journalists
onto
the
stand
accomplishes
nothing
beyond
chilling
future
journalism.
Which,
to
be
fair,
probably
suits
this
Department
of
Justice
just
fine.
The
DOJ
is
already
raiding
reporters’
homes,
so
courtroom
testimony
is
comparatively
mild.
But
it’s
still
unnecessary
and
constitutionally
dubious.
Why
did
Goldstein
sit
down
for
an
on-the-record
interview
while
facing
trial?
It
didn’t
seem
like
a
wise
decision,
but
anyone
who
read
the
original
indictment
knows
wise
decisions
might
not
be
Goldstein’s
strong
suit.
Earlier
this
month,
the
government
tried
to
admit
Toobin’s
article
into
evidence
because
it
contains
statements,
attributed
to
Goldstein,
relevant
to
the
Justice
Department’s
false
statements
charges.
Which,
again,
is
why
it’s
ill-advised
to
give
news
interviews
while
facing
trial.
Goldstein
argued,
correctly,
that
the
quotes
in
the
article
amount
to
inadmissible
hearsay
and
are,
in
any
event,
irrelevant
given
the
government’s
assertion
that
it
already
has
all
the
evidence
it
needs
to
prove
its
case.
When
the
Times
Magazine
piece
dropped
on
December
28,
Goldstein’s
whole
Rounders
II:
Mike’s
Relapse
saga
was
already
a
matter
of
public
record.
And
then
—
unable
to
quit
while
he
was
ahead
—
“Defendant
thus
argued
that,
because
of
these
potential
hearsay
issues
and
the
Confrontation
Clause,
‘[i]f
the
government
wishes
to
present
Mr.
Toobin’s
statements
as
evidence,
it
must
call
Mr.
Toobin
to
the
stand’
so
that
Defendant
could
cross-examine
him.”
The
court
took
Goldstein
up
on
this,
stating
at
the
hearing
“a
fair
question
about
whether
the
reporter
should
simply
be
called,
and
the
government
both
have
the
obligation
of
getting
the
evidence
in
that
way
and
also
giving
Mr.
Goldstein
the
chance
to
cross-examine
that
witness.”
And
the
government
apparently
wasn’t
actually
bluffing,
firing
off
the
requisite
subpoenas.
And
now
Toobin
and
Lee
have
to
litigate
this.
The
motion
to
quash
raises
legitimate
concerns
about
press
freedom.
While
the
law
in
the
Fourth
Circuit
doesn’t
set
up
a
formal
First
Amendment
privilege
for
the
journalists,
the
Circuit
has
recognized
the
need
to
consider
“interests
outside
of
the
scope
of
a
recognized
privilege.”
Judge
Wilkinson
observed
one
such
significant
interest
in
an
earlier
opinion,
noting
that
“reporters
facing
the
prospect
of
becoming
prosecution
witnesses
if
they
report
a
defendant’s
statement
may
think
twice
about
conducting
exclusive
interviews.”
The
Second
Circuit
likewise
noted
that
making
journalists
“appear
to
be
an
investigative
arm
of
the
judicial
system”
undermines
the
press’s
independence.
While
the
free
press
concerns
rightly
take
precedence,
don’t
sleep
on
the
sheer
irrelevance
of
these
requests.
What’s
in
the
article
that
the
government
doesn’t
already
have?
Other
than
Toobin’s
link
to
our
podcast,
of
course.
Indeed,
the
government’s
redacted
version
of
the
Article
includes,
inter
alia,
photographs
of
Defendant,
ECF
No.
327-2
at
4,
11,
15,
Defendant’s
descriptions
of
unnamed
other
poker
players’
demeanor,
id.
at
10
(“They’re
not
chatting.”),
and
a
parenthetical
aside
about
a
celebrity
who
stopped
by
one
of
Defendant’s
poker
games
in
Beverly
Hills,
id.
at
14
(“Al
Pacino
came
by
to
watch,
but
he
didn’t
play.”)
It
is
not
clear
how
any
of
that
material
could
be
relevant
to
the
government’s
case
or
whether
the
government
seeks
to
question
the
Journalists
on
these
points.
This
case
certainly
doesn’t
turn
on
whether
Al
Pacino
showed
up
or
not.
If
anything,
the
motion
notes
that
the
material
the
government
seeks
to
admit
could
undermine
its
case:
As
to
the
mortgage
fraud
counts…
“the
essential
elements
of
[that]
crime…
clearly
requir[e]
the
jury
to
convict
[defendant]
only
if
he
acted
with
the
specific
intent
to
influence
the
bank’s
action
on
his
loan.”…
Yet
the
government
has
sought
to
admit
into
evidence
Defendant’s
statement
in
the
Article
that
he
omitted
information
on
the
mortgage
applications
“because
he
wanted
to
keep
that
debt
secret
from
[his
wife],
as
he
had
kept
her
in
the
dark
about
most
of
his
poker
activity.”…
The
Journalists’
testimony
on
that
point
would
therefore
amount
to
evidence
that
Goldstein
potentially
lacked
the
specific
intent
necessary
to
convict
him
under
18
U.S.C.
§
1014.
Which
seems
stupid
for
a
prosecution,
but
this
DOJ
has
been
playing
on
tilt
since
the
beginning
of
the
administration.
(Motion
to
quash
on
the
next
page…)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
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Follow
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