(The Return of) Ignatz, by Sam Heldman

Wednesday, August 07, 2002

Not liberal bias, just a bit of over-hype The Washington Post (here, according to blogger usage, I'm supposed to say "breathlessly") reports that the government has "defied" a District Judge's order to turn over documents regarding a detainee. Then the Post quotes a professor who says that such defiance of a court order is unprecedented.

This is over-hype, I think. The only way that any party to any case can get appellate review of an order to produce documents (or an order to give testimony, or the like) is to refuse to comply. For most of us, then comes the hard part: you can't appeal until you've actually been held in contempt, which often means going to jail. (Remember Susan MacDougal, whose name I have probably misspelled). Some government officials (remember Richard Nixon) have the luxury of the right to appeal without first being held in contempt. But if you comply with the trial court's order, and turn over the docs, then you generally can't appeal because the case is moot. Therefore -- unless there's something that the Post isn't making clear -- the goverment's "defiance" is simply what the government must do in order to appeal the order. I'm not saying that the government should appeal, or that the government's position is right; just that this is -- procedurally -- nothing too remarkable.

In this regard, orders to turn over documents (or give testimony) are unlike other sorts of court orders. When a court issues an injunction of some other sort -- e.g., "stop picketing,", or "desegregate the schools" -- the general rule is that you've got to comply with the order while it's on appeal. But not with orders to turn over documents. Why the difference? Lots of reasons, and no time to explain to the non-lawyers right now (going out of town soon).

Does this mean the dreaded "liberal bias" in the Post? Of course not. It means the general media preference for BIG story over run-of-the-mill explanation of legal arcana. Legal niceties like this always tend to get lost, no matter whether it's Republicans or Democrats who are the subject of the story.

posted by sam 9:06 AM 0 comments


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