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 free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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