Academic

The SEC, initially with Judge Jed Rakoff's agreement, has pushed its civil case against Galleon to occur before the criminal trial; they've also pushed the defendants for discovery of what I imagine to be the Brady disclosures made by the prosecutors. That's rare, and weird, because usually the criminal case comes first (UPDATE: the judge ultimately relented and moved it back), and we're one big government - why doesn't the SEC just ask the prosecutors for the wiretaps, rather than going through civil discovery against the defendants (the answer there may be that those kind of inter-government disclosures may be limited)?

It was too weird for the the Second Circuit, which just ruled against the SEC and Judge Rakoff.  There's a good writeup on the WSJ law blog here, and Peter Henning has some useful scene setting here.  They should be your next stops, but here's a little value added:

• This is a rare grant of mandamus in a discovery matter that hadn't proceeded to a final judgment, an emergency button that appellate courts rarely deign to push - especially over discovery orders.  The 2d Circuit notes that it is available only in ?exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion.?  So - and ouch - this fit within the terms "judicial usurpation of power."
• This was a matter of the government suing the government.  The USAO filed a brief in support of the Galleon defendants ... whom, of course, the office is prosecuting.  Not exactly the enemy of my enemy being my friend.
• The court told the SEC and judge to wait until there was a ruling on the legality of the wiretaps in the criminal trial, as, naturally, the Galleon defendants have moved to suppress them.  If they win that, it makes the criminal case much more difficult to win - the civil case too, now, as introducing into evidence illegally obtained wiretaps might not go over so well, so it was smart and aggressive of the SEC to try to get the wiretaps before a court had a chance to throw them out.  But still, probably, a good way to disorganize a process.
• The least persuasive part of the opinion, in my inexpert view, is part expanding on the privacy rights enjoyed by the Galleon defendants.  Their privacy interest has constitutional overtones, the court says, but it isn't constitutional.  It looks like a privilege, it observes, but you can't go around making up new privileges on the spot, as at least two recent presidents have learned to their chagrin.  It is informed by the privacy goals of the criminal statute that doesn't let the SEC conduct its own wiretaps, but this sort of penumbral interstitial rights-granting stuff drives people like Justice Scalia crazy.  This isn't my area, but I wasn't really convinced.
• Three law professors play roles here.  One is Judge Gerard Lynch, the well thought of former Columbia law professor (I think he still teaches crim there) - he wrote the Second Circuit's opinion.  Another is Craig Green, who filed a brief on behalf some of the John Does in the case.  And a third is Miriam Baer, who reminded the Glom just how interesting this case is.