[00:00:00] Speaker 03: Case number 14-5174, Freedom Watch, Inc. [00:00:03] Speaker 03: Appellate vs. National Security Agency at Elle. [00:00:06] Speaker 03: Mr. Clayman for the appellate, Ms. [00:00:08] Speaker 03: Dorsey for the appellee. [00:00:34] Speaker 01: Good morning, Judge Rogers, Judge Keitel, and Judge Srinivasan. [00:00:39] Speaker 05: Srinivasan. [00:00:40] Speaker 01: I'm sorry. [00:00:42] Speaker 01: It's a pleasure to be here today. [00:00:45] Speaker 01: This is a case of the pinnacle of national importance. [00:00:48] Speaker 01: It deals with the integrity of the Freedom of Information Act. [00:00:52] Speaker 01: It deals with the integrity of what government agencies tell courts when they want to have cases dismissed on summary judgment. [00:00:59] Speaker 01: And it deals with an issue that I want to get to right now with regard to the emails that were not produced in all likelihood of Secretary Hillary Clinton at the time. [00:01:09] Speaker 01: This FOIA case involves Iran. [00:01:12] Speaker 01: This is an issue of extreme public interest. [00:01:15] Speaker 01: It deals with who leaked information three years ago, actually more than three years ago, with regard to Stuxnet, the cyber warfare against Iran's nuclear facilities, and Israeli-American war plans. [00:01:28] Speaker 01: We are not looking for classified information. [00:01:31] Speaker 01: We're looking for who leaked the information. [00:01:33] Speaker 05: How do you respond to the government's response to your request that information not previously? [00:01:42] Speaker 01: Yes, and I wanted to get to that. [00:01:43] Speaker 01: I want to give a little introduction, but this is the central issue. [00:01:46] Speaker 01: I agree with you, Your Honor. [00:01:47] Speaker 05: The court is interested in, or at least this judge, is interested in your response to the government's [00:01:56] Speaker 01: I am too, and that's what I was getting to. [00:02:00] Speaker 01: The government has conceded that this matter has to be remanded to the lower court. [00:02:05] Speaker 01: The reason it has to be remanded, if you look at the affidavits that were submitted that fraudulently induced summary judgment by the State Department, [00:02:13] Speaker 01: that they did not search any of the records of the secretary's office. [00:02:17] Speaker 01: They admit that they did not do that, yet they gave the impressions of the courts that they did. [00:02:21] Speaker 07: Mr. Clinton, let me just pursue Judge Rogers' question. [00:02:24] Speaker 07: If we agreed with the government for its request for limited remand, does that accomplish what you want here? [00:02:32] Speaker 07: Doesn't that give you everything you want? [00:02:34] Speaker 01: In part. [00:02:35] Speaker 07: Wait. [00:02:36] Speaker 01: And let me give you an example. [00:02:36] Speaker 07: How can it, in part, give you everything you want? [00:02:38] Speaker 01: What we don't want to see is other declarations come forth after another search is done. [00:02:44] Speaker 07: Right, but we can't control that now. [00:02:45] Speaker 07: They've said, the government has said, we're going to look at these. [00:02:49] Speaker 07: You want these emails searched, the government says we're going to search them. [00:02:54] Speaker 07: It's not in the government's offered remand that should be there. [00:02:59] Speaker 07: Why don't you tell us that? [00:03:00] Speaker 01: Thank you for asking the question. [00:03:02] Speaker 01: What we want to see are not affidavits. [00:03:04] Speaker 01: We want an opportunity for limited discovery of the people who signed the affidavits and the ones who will come forward next with a new search. [00:03:12] Speaker 01: There's case precedent for this. [00:03:13] Speaker 05: I know, but suppose, just hypothetically, this is partially remanded, as the government suggests, and they produce thousands of emails. [00:03:22] Speaker 05: And you're totally satisfied. [00:03:25] Speaker 05: Given what's happened in this... It would be premature for this court to say anything more, wouldn't it? [00:03:30] Speaker 01: No, it wouldn't, not in light of what's happened, Your Honor. [00:03:32] Speaker 01: We have a history here and we have moved to supplement the record of not telling the truth. [00:03:37] Speaker 07: But you have a district court. [00:03:39] Speaker 07: You sought discovery. [00:03:40] Speaker 07: The district court said, found, that there was no fraud. [00:03:47] Speaker 07: And he denied discovery. [00:03:48] Speaker 07: I mean, you've got a district court finding [00:03:50] Speaker 07: on discovery. [00:03:53] Speaker 07: You don't have any basis for arguing. [00:03:56] Speaker 01: The court did not know what we now know with regard to Mrs. Clinton's documents. [00:04:03] Speaker 07: But you'll find all that out on Rename and you can always renew your discovery request then. [00:04:09] Speaker 01: The reason that won't work, Your Honor, is that there's a history [00:04:15] Speaker 01: of not telling the truth, the freedom watching the American people here. [00:04:19] Speaker 01: The State Department issued three affidavits, which gave the impression to the court below, no fault of the court below, that all documents had been produced. [00:04:28] Speaker 01: But they weren't. [00:04:28] Speaker 01: In fact, they were on Mrs. Clinton's private email server. [00:04:31] Speaker 07: So what I'm suggesting is... Do you have any evidence now that the government knew that was false when it filed its affidavits? [00:04:38] Speaker 01: Well, they admit in their motion for partial remand that they did not search the Office of the Secretary. [00:04:43] Speaker 07: Well, that's because they, right, they do. [00:04:46] Speaker 00: I thought they were saying the opposite. [00:04:48] Speaker 00: I thought they said that they did search the Office of the Secretary, but then they neglected to include that within the fold of the affidavit. [00:04:55] Speaker 01: Well, that's convenient. [00:04:55] Speaker 01: Unfortunately, Your Honor, they did not submit another affidavit to that effect on the record. [00:05:00] Speaker 07: But that's one of the reasons why they've asked for a remand. [00:05:05] Speaker 07: is to supplement their affidavit. [00:05:07] Speaker 01: We live in a different time. [00:05:09] Speaker 01: I've been practicing law for 37 years. [00:05:15] Speaker 01: I was a Justice Department lawyer. [00:05:16] Speaker 01: I handled some of these cases. [00:05:18] Speaker 01: Years ago, you could actually believe what the government was telling you. [00:05:21] Speaker 01: Today you can't. [00:05:22] Speaker 01: And in this instance, clearly we can't. [00:05:24] Speaker 01: The government deceived, and I'm talking about the State Department, the judge. [00:05:29] Speaker 01: They withheld information from the judge. [00:05:30] Speaker 01: They came forward only after the information was disclosed publicly. [00:05:34] Speaker 01: They could have come forward months before with this and straightened this thing out. [00:05:37] Speaker 01: But now they want you to believe that they're going to go back and prepare correct affidavits than before. [00:05:42] Speaker 07: But that's why I ask you my question. [00:05:44] Speaker 07: Do you have any evidence that the government knew about this private server at the time it filed its affidavits in this case? [00:05:51] Speaker 01: That's why we need discovery, Your Honor, because the public reports, and we filed some of them as part of a supplement, show that the State Department knew about this and they withheld the information from the American people and the Court. [00:06:05] Speaker 01: You know, Hillary Clinton was intimately involved in this. [00:06:07] Speaker 01: There's a document which we attached to our briefs. [00:06:10] Speaker 01: which is written by high-level officials of the State Department, people communicating with the National Security Council and the White House. [00:06:17] Speaker 01: And it says, Sanger is writing a book on the Obama administration's foreign policy, which he published this June. [00:06:23] Speaker 01: He's talked to scores of people, including the Secretary, Bill, Jake, Kirk, Bob Einhorn, and over at NSC and other agencies. [00:06:30] Speaker 01: We have been cooperating with him on this project, and the chats have all been on background with anything on the record to be approved by us. [00:06:37] Speaker 01: Hillary Clinton was intimately involved in this leak. [00:06:38] Speaker 01: The reason for the leaks [00:06:40] Speaker 01: were because the administration was trying to justify what was perceived to be weak action towards Iran on the nuclear program. [00:06:47] Speaker 01: This was right before the elections. [00:06:49] Speaker 01: They wanted to show they were doing something. [00:06:51] Speaker 05: I guess what I'm concerned about is you would have the opportunity on remand to make all of these arguments and to file documents as you wish in response to whatever [00:07:10] Speaker 05: the government does. [00:07:11] Speaker 05: But at this point, what we have is a district court decision, and now we have this government's proposal for this partial remand. [00:07:23] Speaker 05: And that's what we're trying to address. [00:07:26] Speaker 01: And I believe that that's what we should address. [00:07:28] Speaker 01: But we have to take it in the context of what we know at this time, Your Honor. [00:07:33] Speaker 05: But that's my point. [00:07:35] Speaker 05: The appellate court is looking at the record that's before it. [00:07:39] Speaker 05: in the district court, you can make a new record. [00:07:44] Speaker 05: But you're asking us to make findings. [00:07:47] Speaker 01: We move to supplement the record based upon the admissions of Mrs. Clinton herself. [00:07:52] Speaker 05: I know. [00:07:53] Speaker 05: And that's why I started out by saying, what is your response to the government's response to your motion? [00:08:00] Speaker 05: And they say, in effect, I don't want to go too far here, but you're right. [00:08:06] Speaker 05: We ought to go back in the district court [00:08:09] Speaker 05: so they can supplement the record there and then you'll have a chance to respond. [00:08:15] Speaker 01: This is the highest court in the land short of the Supreme Court. [00:08:20] Speaker 01: We are under a time constraint here. [00:08:21] Speaker 01: The American people deserve to have this information now. [00:08:24] Speaker 01: We're in delicate negotiations with Iran. [00:08:27] Speaker 01: By the time this goes back to the lower court and comes back, this administration will already be out of office. [00:08:33] Speaker 01: And the Iran thing will actually be a federal complete at that point in time. [00:08:37] Speaker 01: Your Honor does have the power, all of you, to remand with instructions. [00:08:41] Speaker 01: And here's what we're recommending. [00:08:43] Speaker 01: We're recommending that they do a proper search this time. [00:08:47] Speaker 01: We're recommending that we take limited discovery into the individuals who sign the affidavits to start with Cheryl Walters or anybody else who sends a new affidavit. [00:08:57] Speaker 01: Limited discovery at that time to see if the adequate search was done and whether information is being withheld. [00:09:03] Speaker 05: And why couldn't you ask the district court? [00:09:07] Speaker 05: I just don't understand that. [00:09:10] Speaker 01: If you look at the district court's opinion, and this is no disrespect to the lower court judge, he took what the State Department said hook, line, and sinker. [00:09:17] Speaker 01: We actually asked for discovery there. [00:09:19] Speaker 01: And it was reasonable under the circumstances. [00:09:21] Speaker 07: But he said, the district court found that you have no evidence of bad filth at that time. [00:09:26] Speaker 01: Well, you know why we didn't have evidence? [00:09:28] Speaker 01: Because heads like wind tails, you lose, Judge Tatel. [00:09:31] Speaker 01: We don't have access to the information. [00:09:33] Speaker 01: The government does. [00:09:34] Speaker 01: That was a very disingenuous ruling by the lower court judge. [00:09:37] Speaker 07: Really? [00:09:38] Speaker 07: Why? [00:09:39] Speaker 07: What was disingenuous about it? [00:09:40] Speaker 01: How are we to be able to get into the files of the State Department and have evidence? [00:09:44] Speaker 01: How can we do that? [00:09:45] Speaker 07: Well, maybe you have to show bad faith, right? [00:09:50] Speaker 07: That's what our case law says. [00:09:52] Speaker 07: The district court can deny discovery. [00:09:55] Speaker 07: District court has a discretion in a FOIA case to deny discovery unless there's evidence of bad faith. [00:10:01] Speaker 01: We have more than bad faith here, Your Honor. [00:10:03] Speaker 01: We have likely obstruction of justice. [00:10:05] Speaker 07: I was asking about the situation. [00:10:07] Speaker 07: You just told me that the district judge who decided this case acted disingenuously. [00:10:12] Speaker 07: That's what you just said. [00:10:13] Speaker 01: No, not disingenuously. [00:10:14] Speaker 01: That's what you said. [00:10:15] Speaker 01: You used the word disingenuous. [00:10:16] Speaker 01: What I'm saying is I speak plainly, Your Honor, and I'm not trying to be disrespectful. [00:10:22] Speaker 01: I'm telling you by saying that we had to have information of the [00:10:27] Speaker 01: obstruction caused by Mrs. Clinton when no one else had that knowledge and we didn't have the ability to gain it and therefore he's going to grant summary judgment on that basis because we don't have information. [00:10:40] Speaker 01: That's why we asked for discovery and that is disingenuous. [00:10:42] Speaker 07: Do you disagree about the status of this circuit's case law? [00:10:45] Speaker 07: That is that the district court has discretion to deny discovery absent evidence of bad faith. [00:10:52] Speaker 07: That's this circuit's law, right? [00:10:56] Speaker 01: Not, it's not the absolute law. [00:10:59] Speaker 01: I can give you an example. [00:11:00] Speaker 01: Judge Royce Lambert, in a case that I handled for many years. [00:11:04] Speaker 05: Judge Tatel asked you about the law of this circuit. [00:11:07] Speaker 05: I just need to be clear with what we're talking about here. [00:11:10] Speaker 01: The law of this circuit, I'll cite the APPS decision, the American Physicians and Servants. [00:11:16] Speaker 01: That's not a FOIA case. [00:11:18] Speaker 01: That's in the briefs. [00:11:18] Speaker 05: It's not a FOIA case. [00:11:21] Speaker 01: Well, FOIA is part of FACA. [00:11:23] Speaker 01: as part of the Federal Advisory Committee Act, Your Honor. [00:11:27] Speaker 01: And what I'm asking for here, given what we now know, given what is a public record, given what this Court can take a judicial notice of and take into the record, we know that Mrs. Clinton withheld information from the State Department. [00:11:40] Speaker 01: The State Department did not advise either lower court or Your Honors. [00:11:45] Speaker 01: of the subterfuge until it became public. [00:11:48] Speaker 01: They have acted in more than bad faith. [00:11:50] Speaker 01: In my opinion, this is an obstruction of justice. [00:11:52] Speaker 01: And I'm going to also ask you to order the lower court to remand and order the lower court to take control of those hard drives so they're able to be given to a forensic expert and inspected to see whether, indeed, documents can be retrieved. [00:12:04] Speaker 01: Judge Lambert did that in a case that uncovered the sale of seats on trade missions. [00:12:09] Speaker 01: for large campaign contributions. [00:12:11] Speaker 01: And who was behind that? [00:12:12] Speaker 01: And that's a matter of the record. [00:12:13] Speaker 01: That was case number 960133 in the lower court, which came up to this court on appeal. [00:12:19] Speaker 01: Mrs. Clinton was behind that, too. [00:12:21] Speaker 01: There's a pattern and practice here of not providing the information to the American public under FOIA. [00:12:26] Speaker 01: That's one of the most famous FOIA cases in history. [00:12:28] Speaker 01: I'm also going to ask that this court remand with instructions to look at the documents in camera for any redactions, including the document that was held on Lomar. [00:12:37] Speaker 07: Hold on, wait, wait, wait. [00:12:40] Speaker 07: Glomar, does that have to do with the State Department? [00:12:44] Speaker 01: Yes, it did. [00:12:45] Speaker 01: There's a document. [00:12:46] Speaker 05: I thought that was NSA and CIA. [00:12:48] Speaker 07: That's not before us. [00:12:50] Speaker 07: The only case before us is the State Department, that's it. [00:12:55] Speaker 07: They didn't assert, that's why I was a little surprised what the government said in its brief. [00:13:00] Speaker 07: I didn't think the Glomar issue was before us. [00:13:04] Speaker 01: Well, it is to the extent that there are documents at State that we don't know of. [00:13:07] Speaker 07: The State Department didn't... It's NSA that asserted a Glomar response. [00:13:11] Speaker 01: No, you're right about that. [00:13:12] Speaker 01: You didn't appeal that. [00:13:12] Speaker 01: I'm talking about documents that may arise where they're going to claim Glomar on remand. [00:13:17] Speaker 07: Do you want us to issue some sort of order on assumption that the State Department might assert a Glomar response? [00:13:24] Speaker 01: I would like the lower court to review any documents in camera in light of... Well, you can ask the district court to do that. [00:13:30] Speaker 01: And here's the problem. [00:13:31] Speaker 01: You have the power to remand with specific instructions. [00:13:34] Speaker 01: You don't have to take exactly what the government is saying and say I agree with that and then send it back. [00:13:40] Speaker 01: You can send it back with specific instructions. [00:13:42] Speaker 01: We now have a public record of what likely amounts to an obstruction of justice by the State Department and Mrs. Clinton. [00:13:49] Speaker 05: So back to my question. [00:13:53] Speaker 05: The government has made a proposal and Judge Tatel followed up by saying [00:14:00] Speaker 05: Are you satisfied with it? [00:14:01] Speaker 05: And you said no. [00:14:03] Speaker 05: That you wanted us to issue some instructions to the district court. [00:14:07] Speaker 05: And I want to know exactly what these instructions are. [00:14:11] Speaker 01: Instructions are to provide for a new search. [00:14:15] Speaker 01: The instructions are to allow for receipt of Atta Davis. [00:14:19] Speaker 01: And given the fact that the prior affidavits were misleading, if not false, to allow for limited discovery into those people who signed those affidavits, to order that the hard drives of Mrs. Clinton, even though she says she's wiped them clean now after the fact, which in my view amounts to an obstruction of justice, be taken into court custody and sent to a forensic expert for analysis. [00:14:40] Speaker 01: that any documents that are identified be looked at in camera by the judge to make sure that improper redactions are not made or information is not being withheld under false claims of exemption. [00:14:51] Speaker 01: We have a pattern in practice here of falsifying information to the lower court. [00:14:56] Speaker 01: I'm not critical of the judge. [00:14:57] Speaker 01: I just made that one observation that to say that we should have information that we didn't have at that time is to look at it in the present-day context. [00:15:06] Speaker 01: as something which can obviously hold any weight. [00:15:09] Speaker 01: We now know. [00:15:10] Speaker 05: So my question is, why wouldn't the district court be in the same position you're in? [00:15:17] Speaker 05: Namely, you will have brought new information to the district court's attention, and you can ask the district court to reconsider rulings it made. [00:15:30] Speaker 05: That's all I want to be clear on, as opposed to us trying to guess what happens [00:15:37] Speaker 05: if there's a remand. [00:15:38] Speaker 01: The problem with that is that FOIA was designed, Your Honor, to provide information in the public interest timely so it can be disseminated to the American people. [00:15:46] Speaker 01: We're a public interest group. [00:15:47] Speaker 05: But we know from the history of FOIA, as the cases in this court demonstrate, that FOIA responses are not always timely, unfortunately. [00:15:58] Speaker 05: So we're moving quickly here. [00:16:00] Speaker 05: And let's just deal with this case. [00:16:02] Speaker 01: You are moving quickly, and I commend that, but the lower court did not move quickly. [00:16:07] Speaker 01: This case is now almost three years old. [00:16:10] Speaker 01: By the time information comes back to this court in any kind of an appeal, if necessary, this will be long since this administration is concluded and long since any nuclear negotiations and other dealings with Iran have become a fait accompli. [00:16:24] Speaker 01: The American people deserve the information now. [00:16:26] Speaker 01: What I'm saying is you have the power. [00:16:28] Speaker 01: you have the power to remand with specific instructions under the facts that we know at this time that are a matter of public record that Mrs. Clinton has admitted to, that the hard drive should be taken into custody. [00:16:40] Speaker 01: There should be limited discovery into who signs these affidavits, because the prior affidavits were plainly false and intentionally false. [00:16:48] Speaker 01: They made an effort not to search. [00:16:49] Speaker 05: Well, you made all these accusations, but Judge Tatel asked you the question, what evidence did you have that these clients knew [00:16:58] Speaker 05: at the time. [00:16:59] Speaker 05: And isn't that the type of inquiry that the district court would have to make? [00:17:04] Speaker 05: We can't make that. [00:17:06] Speaker 05: And you can renew all those matters before the district court in light of what the government has said here. [00:17:13] Speaker 01: What I'm saying, Your Honor, is that we have, as a matter of public record, the motion to supplement is pending. [00:17:18] Speaker 01: You could also take judicial notice of it. [00:17:21] Speaker 01: It is known that the State Department intentionally [00:17:24] Speaker 01: looked the other way, did not search Mrs. Clinton's files, much as occurred with Ron Brown in the Commerce Department back with Judge Ramworth. [00:17:31] Speaker 05: All right, Mr. Klayman, let's talk. [00:17:33] Speaker 05: Can we hear from the government and give you some rebuttal? [00:17:36] Speaker 01: Yes, may I have two minutes to reply to me? [00:17:38] Speaker 05: Sure. [00:17:46] Speaker 04: Good morning, Your Honors. [00:17:47] Speaker 04: May it please the Court, Katherine Dorsey on behalf of Defendants at Police, and with me at counsel table are Douglas Letter and Matthew Collette. [00:17:54] Speaker 05: Can I ask you one question? [00:17:55] Speaker 05: This document that counsel for appellant attached to his brief [00:18:03] Speaker 05: That's from Wendy Sherman to Michael Hammer. [00:18:08] Speaker 05: Was this part of the record before the District Court? [00:18:12] Speaker 04: It was not part of the record, Your Honor, I don't believe, but it was one of the documents that was released to plaintiff as part of the FOIA request. [00:18:19] Speaker 04: All right, thank you. [00:18:22] Speaker 04: Your Honors, as we have suggested in our filing yesterday, a partial remand here we think would be appropriate in order to give the State Department an opportunity to search the former secretary's emails that have been provided to the State Department, and also to ensure that the State Department's declarations about the searches that were conducted in this case are complete. [00:18:46] Speaker 07: Well, on your first point, Ms. [00:18:48] Speaker 07: Dorsey, wouldn't you say in your motion, in your filing, that the purpose of this remand is to determine whether any of these emails are responsive, right? [00:19:01] Speaker 07: That's what you say. [00:19:02] Speaker 03: That is correct, Your Honor. [00:19:03] Speaker 07: Why would the court or why would we or the court accept the idea that your two-step process here, that is, you say it's more efficient for the State Department to review all the emails and then publicize them and then you'll look to see whether they're any responsive to the FOIA request, right? [00:19:25] Speaker 03: Correct. [00:19:26] Speaker 07: Why don't you just, I mean, Mr. Klayman has a pending FOIA request. [00:19:30] Speaker 07: doesn't that FOIA request have priority? [00:19:32] Speaker 07: And your document essentially says there may be more responsive documents. [00:19:39] Speaker 07: And under that circumstance, isn't it the State Department's obligation to search to find documents that are responsive to this FOIA request? [00:19:49] Speaker 04: Well, a couple responses, Your Honor. [00:19:51] Speaker 04: One, the State Department, because as we indicated in our motion, that their response [00:19:58] Speaker 04: There has been a lot of interest, obviously, generated by the emails and State Department has committed. [00:20:03] Speaker 07: Yes, but Mr. Klayman has, unlike the public, he has a pending FOIA request. [00:20:08] Speaker 07: And FOIA requests impose a specific obligation on the government to search for responsive documents. [00:20:15] Speaker 07: I would think the proper approach under the Department's obligations would be the other way around. [00:20:23] Speaker 07: That is, to deal with pending FOIA requests first, [00:20:27] Speaker 04: Well, but I think, Your Honor, it's just the point that the State Department needs to be able to process those emails. [00:20:32] Speaker 04: And then once they have processed those, then they can look into this case to determine which of those are responsive. [00:20:39] Speaker 07: But given the way this case has narrowed down to basically one department, namely State, and one issue, namely David Sanger emails, and the fact that these are all emails. [00:20:52] Speaker 07: There's no paper. [00:20:53] Speaker 07: We're just talking about emails. [00:20:55] Speaker 07: Isn't it a relatively easy matter to search the documents for the name David Sanger? [00:21:01] Speaker 07: That's all you have to do. [00:21:04] Speaker 07: Not the documents, emails. [00:21:05] Speaker 07: That's all that has to be done and you'll either turn up emails or you won't. [00:21:09] Speaker 04: And we could certainly, I guess, consult with State Department whether that would be possible to do that, to do that first. [00:21:16] Speaker 04: I, of course, have to consult with my client about whether that would be a possibility. [00:21:20] Speaker 04: I mean, in this case also, the search plaintiff here has never even... In other words, this is, you go ahead, I'm sorry. [00:21:30] Speaker 00: It seems like it has to be a possibility because all we're talking about is, all Judge Tatel's talking about is sequencing, right? [00:21:35] Speaker 00: So what you're saying is that search would happen [00:21:37] Speaker 00: after the initial phase, which would be to publicize everything to be publicized. [00:21:42] Speaker 00: But the second phase would be to do exactly what's being talked about here, which is to do a search that uses the terms that are responsive to the FOIA request. [00:21:49] Speaker 00: So it seems like by your own forecast of what should happen, you're presupposing that the second phase can happen. [00:21:56] Speaker 00: The question is just whether the second phase should happen. [00:21:58] Speaker 04: That's correct, Your Honor. [00:21:59] Speaker 04: But I guess what I'd point out is that in this case, plaintiff has never [00:22:04] Speaker 04: in his challenge to the State Department's search, he has never even indicated that there were other offices or other keyword terms that the State Department should have used in its search. [00:22:17] Speaker 04: And so in this case, we are voluntarily offering to go back and search those emails – the secretary – former secretary's emails in case there might be something responsive. [00:22:29] Speaker 07: But again – But don't you – you say voluntary. [00:22:33] Speaker 07: It seems to me that [00:22:35] Speaker 07: I'm not sure this is really voluntary, given what you filed. [00:22:40] Speaker 07: You've acknowledged that the emails exist and that there might be, and that they need to be searched. [00:22:45] Speaker 07: And under FOIA, I mean, I think that's, you know, that's a responsible way for the agency to behave. [00:22:52] Speaker 07: In fact, it's quite analogous to what happened earlier in this case when State on its own came back to the court and said, oops, we forgot, we neglected to search, what was it, the head office of public affairs. [00:23:05] Speaker 07: Wasn't that what it was? [00:23:06] Speaker 07: The front office of public affairs. [00:23:09] Speaker 07: I mean, that was a very responsible thing for state to tell the court. [00:23:13] Speaker 07: And you asked for 60 days to do that and did it. [00:23:16] Speaker 07: And isn't this exactly the same situation? [00:23:18] Speaker 07: You've now discovered, not you but your client, has now discovered, just as you did then, that there may be more documents that need to be searched. [00:23:28] Speaker 07: And just as then, your obligation was to search it. [00:23:33] Speaker 07: You have the same obligation now. [00:23:35] Speaker 07: And whatever state wants to do with respect to broader public interest is up to state. [00:23:41] Speaker 07: But here, we have a FOIA case with obligations under FOIA. [00:23:46] Speaker 04: That is correct, Your Honor. [00:23:47] Speaker 04: Now that these documents have been provided to the State Department, they are agency records and State Department. [00:23:53] Speaker 04: But you're right that we [00:23:56] Speaker 04: It is similar to the previous circumstance, which is exactly why we are suggesting that a remand would be appropriate. [00:24:02] Speaker 07: Yeah, and I'm only focusing on the sentence in your filing that says it would be more efficient. [00:24:12] Speaker 07: It says your proposed suggestion is that you look at all the documents and make the public would be, quote, more efficient [00:24:20] Speaker 07: than reviewing documents piecemeal in response to specific FOIA requests. [00:24:24] Speaker 07: But your legal obligation in this case is to respond to specific FOIA requests. [00:24:31] Speaker 07: And I don't see anything in this that suggests why that would be more efficient. [00:24:37] Speaker 07: In fact, from the perspective of FOIA, it seems to me that it would be less efficient, since all you're looking for is one name, David Sanger. [00:24:46] Speaker 04: And your honor, I think we can do that. [00:24:49] Speaker 04: Of course, I'd have to consult with the Sage Department, but I don't think that would be a problem. [00:24:54] Speaker 04: But I mean, in terms of here, we're reviewing summary judgment determination for the state at the time. [00:25:02] Speaker 04: These weren't part of the agents that former Clinton's emails were a part of the state record. [00:25:07] Speaker 04: So at the time, we had conducted the search. [00:25:10] Speaker 00: And I take it there's other FOIA requests that are implicated by the gaining of knowledge that there's this additional email cache that needs to be sent. [00:25:19] Speaker 04: My understanding is there are additional FOIA requests, which is why the State Department has indicated that it would be faster to process the emails as a whole and then [00:25:32] Speaker 04: they would turn to individual FOIA cases. [00:25:35] Speaker 04: Because if the documents are already public, then individuals would have access to them. [00:25:42] Speaker 07: The other thing that I wanted to ask you about is, there's nothing in your filing about how much time this will take. [00:25:50] Speaker 04: And that I don't have an answer to, Your Honor. [00:25:53] Speaker 04: I would have to consult with the State Department about the timing on that. [00:25:57] Speaker 05: When I read your filing, I thought part of your concern might be that maybe some of these documents have to be reviewed in terms of whether they're classified, things like that. [00:26:10] Speaker 04: Exemptions, classified. [00:26:13] Speaker 05: And I understand sort of the approach. [00:26:21] Speaker 05: Is your position today that, I guess I need to understand what your position today is. [00:26:27] Speaker 05: You say you'll consult with your clients, but from the court's point of view, don't we need to know whether, I suppose, tell me what you think we need to know in terms of the government's response to this email, this FOIA request. [00:26:49] Speaker 04: Well, I think in the remand, I mean, we have indicated, you know, if this court does send it back, I think this court can decide the other issues in the case and then remand on the search issue. [00:27:00] Speaker 04: And the timing will be what it is there and all the issues can be litigated there before the district court. [00:27:11] Speaker 04: So I'm not sure how critical the timing of the State Department. [00:27:16] Speaker 05: But what I'm thinking of, and I just know this from reading the newspaper, and maybe it's not accurate information, but the Inspector General took three years to look at how emails were being handled at the State Department and issued a report. [00:27:31] Speaker 05: I guess that's the sort of sense of where you want to review everything first. [00:27:37] Speaker 00: And I just, I don't have an answer to that without talking. [00:27:54] Speaker 04: That's possible. [00:27:55] Speaker 04: I'm not aware of a timing statement that's been made on that. [00:27:59] Speaker 04: I could certainly check with the State Department and send a letter back to the court if that would be helpful. [00:28:05] Speaker 05: Well, at least your filing suggests that you do know about additional searches that have been made which are not fully described in the declarations that have been submitted to date. [00:28:21] Speaker 05: So presumably those could be updated. [00:28:25] Speaker 04: Yes, that's why another reason we thought the remand would be appropriate to send that back to this court so we can fully explain the additional search that was done. [00:28:34] Speaker 00: But I thought, am I wrong in this impression, that with respect to that additional search, that was already conducted. [00:28:38] Speaker 00: Right. [00:28:39] Speaker 00: Presumably there were no responsive documents found beyond that which has already been disclosed, or else you would have disclosed those. [00:28:45] Speaker 04: That is my understanding, Your Honor, but again, that's why we think a remand would be appropriate to just make sure the declaration is fully complete. [00:28:53] Speaker 00: On the searches that were conducted, but not on the documents that were, the catch of documents that were disclosed based on the searches that have already been conducted is complete. [00:29:02] Speaker 00: It's just describing the searches that were conducted. [00:29:04] Speaker 05: That is my understanding, Your Honor. [00:29:06] Speaker 05: I wasn't clear about that either. [00:29:09] Speaker 05: Yes. [00:29:10] Speaker 07: So I have a question. [00:29:11] Speaker 07: In all honesty, this question comes from a computer Luddite, OK? [00:29:16] Speaker 07: So maybe you can help me. [00:29:18] Speaker 07: Suppose someone in one of these three offices sent an email to Secretary Clinton and it went to her to the private server. [00:29:33] Speaker 07: That would have shown up in your search, wouldn't it, because it was sent from a government computer? [00:29:38] Speaker 02: I'm sorry, which three offices? [00:29:39] Speaker 07: The three offices that you searched. [00:29:41] Speaker 02: The original through the central file? [00:29:43] Speaker 07: I'm looking back. [00:29:43] Speaker 07: I just want to understand how this works. [00:29:44] Speaker 07: So if an assistant secretary sitting in her office sends the secretary an email, not to her official email address, but to her private email address, wouldn't that have shown up in the State Department search? [00:30:03] Speaker 07: Because it was sent from a government computer? [00:30:05] Speaker 04: That is my understanding as long as whatever file was searched included email documents. [00:30:10] Speaker 07: Correct. [00:30:11] Speaker 05: But let me just say that's what the Inspector General report questions as to whether department employees were saving their emails as they were supposed to. [00:30:22] Speaker 07: No, I agree. [00:30:23] Speaker 07: If they weren't saved, it wouldn't be there. [00:30:25] Speaker 07: But if it was, it would be there, correct? [00:30:28] Speaker 06: That is my understanding. [00:30:29] Speaker 07: And the same is true of the opposite. [00:30:32] Speaker 07: Correct. [00:30:33] Speaker 07: So the only emails that wouldn't appear are emails sent, like if an assistant secretary decided to send the secretary of state, [00:30:44] Speaker 07: an email from her own private Gmail account to the secretary's private account. [00:30:51] Speaker 07: That wouldn't show up anywhere, right? [00:30:53] Speaker 03: That is also correct in my understanding, Your Honor. [00:30:57] Speaker 07: Yeah. [00:30:57] Speaker 07: So the only, I realize, I'm just curious. [00:31:02] Speaker 07: This is nothing but curiosity, I assure you. [00:31:04] Speaker 07: So the only, notwithstanding the disclosure of all these emails to a private server, [00:31:15] Speaker 07: The only issue is still the issue that's been around all along, which is we're public, we're emails on government computers preserved. [00:31:26] Speaker 07: That's it. [00:31:28] Speaker 07: Right? [00:31:29] Speaker 03: I believe so, Your Honor. [00:31:30] Speaker 07: Yeah. [00:31:32] Speaker 07: Okay. [00:31:32] Speaker 04: Your Honor, I see I'm running out of time. [00:31:35] Speaker 04: I just would like to touch on the issues with the other agencies briefly. [00:31:39] Speaker 04: In this case, both the NSA and the CIA had issued Glomar responses to the FOIA request, which the District Court had dismissed plain as a challenge to those Glomar responses. [00:31:52] Speaker 07: So why is that before us here? [00:31:54] Speaker 07: The only thing before us is State. [00:31:56] Speaker 04: I don't believe that's correct, Your Honor, because plaintiff here challenged in his notice of appeal all the other included rulings, which seem to suggest, and in his brief, averted to the fact that he was appealing. [00:32:08] Speaker 07: So you think the district court's earlier judgments before us? [00:32:14] Speaker 04: That's what the notice of appeal purported. [00:32:17] Speaker 07: But do you believe that that's correct, just because he put in his notice? [00:32:20] Speaker 07: He didn't appeal. [00:32:21] Speaker 07: Well, he did. [00:32:23] Speaker 07: He didn't appeal. [00:32:26] Speaker 07: Judge Wilkins summary judgment order, correct? [00:32:31] Speaker 04: He raised no argument on appeal about the dismissal of the NSA and the CIA. [00:32:37] Speaker 07: No, but he didn't appeal that, did he? [00:32:39] Speaker 04: Well, I guess it depends on whether the all-inclusive rulings, the language he included in his notice of appeal. [00:32:47] Speaker 07: But the government thinks, I just want to be sure, you may be right, the government thinks that that's enough to bring up the previous case also. [00:32:54] Speaker 07: Is that your theory? [00:32:54] Speaker 04: I don't want to take a position on whether it is or not, Your Honor, but in the event the court should determine that it is in case, that's exactly right, Your Honor. [00:33:03] Speaker 05: Okay, I got it. [00:33:05] Speaker 04: In any event, Slingiff raises no argument on appeal as to the dismissal of the challenges against NSA or CIA, and again with the DOD's Glomar response, we believe that the District Court correctly granted summary judgment on that grounds, too, as well. [00:33:21] Speaker 04: If the court has no further questions. [00:33:24] Speaker 04: Thank you. [00:33:24] Speaker 04: Thank you. [00:33:29] Speaker 05: Council for Appellant. [00:33:31] Speaker 01: Thank you. [00:33:33] Speaker 01: Timing is very important. [00:33:34] Speaker 01: Judge Taylor touched on that, and you all did. [00:33:37] Speaker 01: Because the modus operandi here, with the procedure that's being suggested, which I would submit is calculated, is to have this case dragged out. [00:33:50] Speaker 01: well into the future beyond the next elections. [00:33:52] Speaker 01: The State Department is very loyal to Mrs. Clinton. [00:33:55] Speaker 01: I'm sure that most of the people that are involved would like to see her elected president. [00:33:58] Speaker 01: The American people need to know whether she produced the information she was required to produce and whether she leaked classified information to David Sanger before that time. [00:34:08] Speaker 01: That's a matter of public interest. [00:34:09] Speaker 01: I don't seek to influence any elections, but the American people need to know that now. [00:34:14] Speaker 01: And this procedure is designed to drag it out [00:34:17] Speaker 01: until after the 2016 elections. [00:34:19] Speaker 01: And that's why you need, in all due respect, to be very firm with the lower court and say, here's how it should proceed. [00:34:26] Speaker 01: With regard to the search, key word searches are not enough, is that there can be references in those documents to someone, to Mr. Sanger, without actually using his name. [00:34:36] Speaker 01: It's kind of like see no evil, hear no evil, do no evil. [00:34:38] Speaker 01: We're not going to look for anything except unless Sanger's name is used. [00:34:42] Speaker 01: Well, that's why all the documents need to be reviewed. [00:34:45] Speaker 01: And they need to review it in camera by the lower court judge. [00:34:49] Speaker 01: And the remand should make that clear as well. [00:34:51] Speaker 01: And to speed this up. [00:34:52] Speaker 05: In their brief, they argue you didn't make any challenge in the district court. [00:34:57] Speaker 01: That's incorrect. [00:34:58] Speaker 01: We did make challenges to it. [00:34:59] Speaker 01: In fact, it was an incorrect statement that we didn't put the document in the record at the lower court, but I read you that Mrs. Clinton was involved in talking to David Sanchez. [00:35:06] Speaker 00: No, but did you challenge the nature of the keyword search? [00:35:10] Speaker 00: It didn't sound like you'd ever challenge the particular word, the search terms. [00:35:16] Speaker 01: We did in the context [00:35:18] Speaker 01: of asking the court for discovery because we did not feel that that was adequate the way the search was done. [00:35:23] Speaker 01: So yes, generally speaking, we did challenge that. [00:35:26] Speaker 00: I thought your argument was that keyword searches generally are not adequate. [00:35:31] Speaker 00: Not that assuming keyword searches are okay, the particular terms used here were flawed. [00:35:37] Speaker 01: Well, yes, that was our argument. [00:35:39] Speaker 01: If you look at the documents... And as to that, can I just ask? [00:35:42] Speaker 00: Sure. [00:35:43] Speaker 00: How are you supposed to search online materials other than using keywords? [00:35:48] Speaker 00: you look at the actual documents themselves. [00:35:51] Speaker 00: And how would you define the field of documents you're supposed to look at? [00:35:54] Speaker 00: Every single email that anybody in the state has ever sent on any subject? [00:35:57] Speaker 01: There were only, no your honor, there were only two hundred and something pages of documents. [00:36:01] Speaker 01: I'm sorry, I didn't mean to interrupt you. [00:36:03] Speaker 00: So you have to narrow the field somehow, and I take it that the way you narrow the field is by identifying terms that would then allow you to look at a particular subsect of every subject. [00:36:12] Speaker 01: Well you can start with that, but there aren't that many documents [00:36:15] Speaker 01: with regard to this issue, presumably because we're dealing here with leaking information to David Sanger of the New York Times. [00:36:22] Speaker 01: How many documents can there be? [00:36:24] Speaker 01: Of the documents that were produced, there was only 200 and some pages. [00:36:27] Speaker 01: That's not hardly anything at all. [00:36:29] Speaker 01: This is not a great burden, and Judge Tatel hit the nail on the head. [00:36:32] Speaker 01: Our FOIA request should be dealt with first. [00:36:33] Speaker 01: This is a matter of tremendous public interest. [00:36:36] Speaker 01: This is a matter, as we stand here today, negotiators are trying to hammer out a deal with Iran. [00:36:42] Speaker 01: The leaks here were designed to have this administration show right before an election that they were being tough on Iran. [00:36:48] Speaker 01: Most people, even Democrats, believe that they're not being tough on Iran, that they're rolling over. [00:36:52] Speaker 01: The American people need to know why these leaks occurred. [00:36:56] Speaker 01: And you know, it's interesting. [00:36:58] Speaker 01: Edward Snowden, that's another case that we have in front of your honors today, the NSA case that we got an injunction on, a plenary injunction, it's on appeal. [00:37:06] Speaker 01: Someone like Snowden had to leave the country, and he was a whistleblower, and now he's subject to potential prosecution, likely prosecution. [00:37:15] Speaker 07: I've lost the relevance to this. [00:37:17] Speaker 01: The relevance is that the American people need to know if they're high officials like Mrs. Clinton and the people around her, like Cheryl Mills, people in the National Security Council, are leaking information and we're burning this guy at the stake named Snowden. [00:37:29] Speaker 01: Does that mean that the higher-ups in this town get off scot-free and the people that are actually trying to do the right thing get burned at the stake? [00:37:35] Speaker 01: That can't be what this government's about and it can't be what this Court allows. [00:37:39] Speaker 01: And that's why you have to exercise a firm hand here. [00:37:42] Speaker 01: nonpartisan firm hand with regard to how this administration has acted. [00:37:47] Speaker 01: And this Justice Department here, and I'm the former Justice Department lawyer, has played a role in covering up the information of this administration. [00:37:53] Speaker 05: I know, but we want to be careful, and you would want others to be careful when you were a Justice Department lawyer before you make accusations. [00:38:01] Speaker 05: And if you have anything further, by way of legal argument, [00:38:07] Speaker 01: This Attorney General of this administration has been held in contempt of court by Congress. [00:38:11] Speaker 05: By legal argument relevant to this case. [00:38:15] Speaker 01: I believe it is, Your Honor, and I'm not taking this out of context. [00:38:19] Speaker 01: It's a reality that Mr. Holder has been held in contempt of Congress for providing false information to Congress and withholding documents. [00:38:26] Speaker 01: He runs the Justice Department. [00:38:28] Speaker 01: Thank you. [00:38:29] Speaker 05: We will take the case under advisement.