[00:00:01] Speaker 00: Case number 17-5142 et al. [00:00:04] Speaker 00: United States Department of Treasury appellant versus Dennis Black et al. [00:00:11] Speaker 00: Mr. Stern for the appellant. [00:00:12] Speaker 00: Mr. Kalia for the appellant. [00:00:24] Speaker 04: 63 documents as to which the district court in this case found to be covered by the Presidential Communications Privilege and on appeal the question is whether the court erred in concluding that the respondents had demonstrated that their [00:00:54] Speaker 04: principles that protect the Presidential Communications Privilege. [00:01:01] Speaker 04: At this point, respondents have received about a million pages of discovery from the Pension Benefit Guarantee Corporation, which is the [00:01:15] Speaker 04: they have obtained approximately 70,000 pages from Treasury, including the documents over which Treasury had claimed deliberative process privilege. [00:01:27] Speaker 04: And the only ones we are contesting are those last 63, which is more like 20, because a number of the documents are duplicative. [00:01:37] Speaker 01: What is the finding the trial judge has to make in order to overcome the privilege? [00:01:44] Speaker 04: The Court has to, at a minimum, find that the requirements of the Inray Sealed case are met. [00:01:55] Speaker 01: You know, the District Court said that, but, I mean, our... Is there enough in the record here for us to review his finding on that? [00:02:04] Speaker 01: Yeah, I mean, the Court... Shouldn't we remand it for him to give us a more well-developed record? [00:02:11] Speaker 04: I think that the Court could do one of two things. [00:02:16] Speaker 04: with instructions to actually do what an in-race sealed case requires. [00:02:24] Speaker 04: And alternatively, we think that the record is such that it's claimed that plaintiffs have not made their showing. [00:02:32] Speaker 04: This court, I believe, has. [00:02:35] Speaker 03: What's the showing they need to make? [00:02:36] Speaker 04: Well, the showing that they need to make is that there is information that is important to their underlying claim, and that the information cannot be taken elsewhere. [00:02:50] Speaker 03: Is it your contention they haven't made that showing? [00:02:52] Speaker 04: Absolutely, Your Honor. [00:02:53] Speaker 04: And that's why I was emphasizing the amount of discovery that's been obtained already. [00:03:00] Speaker 04: I mean, at this point, to come in to try and overcome the presidential communication [00:03:07] Speaker 04: when as the district court found it does apply, one would expect that there be some reasonably specific explanation of what it is that's been found to date that makes it likely that there will be documents among these documents that will actually fit into a case and provide some reasonably specific explanation of how this really works in terms [00:03:37] Speaker 04: terms of the theory of the case. [00:03:40] Speaker 04: Now up to now, as far as one can tell, I don't mean this in a negative way, but it really, I mean, I just want to sound negative, this really is a fishing expedition at this point. [00:03:52] Speaker 04: We don't have anything whatsoever to make one believe that it is likely that among these documents is [00:04:04] Speaker 04: sort of generalized way the plaintiffs have characterized what their claim in the underlying cases. [00:04:11] Speaker 03: If we disagreed with you on the need showing, is that the end of your argument? [00:04:17] Speaker 04: I mean, I don't really know how to totally answer that because the business about finding it alternatively [00:04:29] Speaker 04: One of the difficulties is that their argument for why they need this and why it's not available alternatively sort of tend to some extent blend together without knowing why they need it. [00:04:44] Speaker 04: hard to explain why it's not available elsewhere. [00:04:47] Speaker 04: What is clear is that to the extent that they're saying, I mean, when we look at, I mean, what they're trying to prove in Michigan in this count four of their complaint is that had the, had there been a judicial hearing on determination that [00:05:08] Speaker 04: would have met statutory criteria. [00:05:13] Speaker 04: So that's, in some way, that's what this is all about. [00:05:17] Speaker 04: At this point, and there's sort of a generalized statement that, well, maybe there was some sort of improper political influence. [00:05:28] Speaker 04: to demonstrate that to the extent that what they're saying is, well, maybe there were things that, there were options that PM could have considered, but there were other ways. [00:05:40] Speaker 03: Let me ask you, is there a different balancing that's to take place when we're in a civil procedure, civil litigation, as opposed to, you know, a sealed case was a criminal matter, Nixon [00:05:52] Speaker 03: tape's case where it's criminal matter, how's the district court or how are we supposed to balance the interest when it's a civil litigation? [00:06:02] Speaker 04: Well, I think what the Supreme Court's Cheney decision in [00:06:09] Speaker 04: strongly indicates, and it's basing, you know, goes back to Nixon, that in, and this was important, I think, in the Inray Sealed case, too, that there is a greater interest in disclosure in the context of a criminal case because of the interests of the criminal justice system, so that there is a competing constitutional concern that's in the balance. [00:06:37] Speaker 04: They remind me, was that discussed in the district court analysis? [00:06:53] Speaker 04: standard, or what we think should be sort of like a heightened standard beyond the Emory-Seeld case. [00:07:01] Speaker 04: It doesn't matter here, because in this case, if anybody can come in and say, I want presidential communications privileges, because they might [00:07:13] Speaker 04: sort of provide something for a lawsuit, but maybe they've got something that shows something improper. [00:07:20] Speaker 04: And this is after they've gotten all the documents from the actual defendant. [00:07:26] Speaker 04: So it's got to be something that never went anywhere else. [00:07:34] Speaker 04: Remember, there have been IG reports looking into this. [00:07:39] Speaker 04: There's nothing in all of this that would point to the idea that they've made showing that there is likely to be anything. [00:07:49] Speaker 04: Also, to the extent that the court has any additional concerns, I really would welcome [00:07:56] Speaker 04: asked the court to look at the documents, as the district court did. [00:08:02] Speaker 04: The district court said, I find that the privilege is outweighed for substantially the reasons offered by plaintiffs. [00:08:11] Speaker 04: Our submission is that that's just not good enough. [00:08:15] Speaker 04: Even if the court simply [00:08:22] Speaker 04: have got to take the presidential communications privilege more seriously than that, because otherwise it's really going to be a meaningless privilege. [00:08:31] Speaker 04: And we're really hoping that the court in this case will provide some guidance, whether it disposes of the case itself or remands. [00:08:58] Speaker 03: Good morning. [00:09:06] Speaker 03: My question is whether the district court, in fact, used the wrong standard here by failing to analyze this as a civil litigation matter, not a criminal matter. [00:09:16] Speaker 03: Isn't it much more difficult to get presidential communications privilege pierced [00:09:23] Speaker 03: in a civil matter, right, as opposed to a criminal, and it doesn't seem to me the district court took that into account at all. [00:09:30] Speaker 03: Am I reading him wrong, or? [00:09:32] Speaker 02: Your Honor, we think the district court did take it into account. [00:09:36] Speaker 02: be the court applied the standards and in racial case but also in Dellums. [00:09:41] Speaker 02: Dellums was a civil case and in the court's opinion and in racial the court noted that that in Dellums and in the Court of Federal Claims in the Sun Oil case have found that the [00:09:56] Speaker 02: The evidentiary demands in a civil context can overcome the presidential communications privilege. [00:10:04] Speaker 02: It's not wrong to say that the interest in disclosure is less in the civil context than in the criminal context. [00:10:10] Speaker 02: That's true. [00:10:12] Speaker 02: But as the Court has pointed out, there's a whole host of balancing factors that come into play. [00:10:18] Speaker 01: come into account the court do an adequate record balancing here for us to review rather i think it did what's his best statement as to why you have the need element for example certainly well uh... [00:10:34] Speaker 01: quote it to me, or give me a good paraphrase of it. [00:10:38] Speaker 02: Sure. [00:10:39] Speaker 02: So the district court said, looked at the briefing that was before it on the motion to compel. [00:10:48] Speaker 02: We had about eight pages of analysis on what the standard should be. [00:10:54] Speaker 02: We talked about the difference. [00:10:55] Speaker 01: And all he did was say, well, for the reasons stated by the [00:11:00] Speaker 02: He said that – he summarized it by saying, well, these – He didn't just summarize. [00:11:04] Speaker 02: That's all he said, wasn't it? [00:11:06] Speaker 02: Well, respectfully, Your Honor, he said that the documents in question could likely go to show whether the PBGC was improperly influenced by the Treasury. [00:11:15] Speaker 02: And then he said – he specifically quoted to a page of our brief. [00:11:17] Speaker 02: And then in response, what he had and what he noted was that the Treasury offered three paragraphs in opposition, did not contest that these documents were unavailable. [00:11:28] Speaker 02: from any other source, did not let the court of first instance know that that was a subject that was in dispute. [00:11:35] Speaker 02: And then if you look, the record that was before the court in this case was developed over five years. [00:11:42] Speaker 02: And the record was not lacking in evidence to support Judge Sullivan's determination here. [00:11:48] Speaker 02: He had evidence before him that showed that the Treasury was involved in daily briefing calls on Delphi issues. [00:11:54] Speaker 02: He had evidence that showed that the PBGC, prior to the involvement of the Auto Task Force, was actively working to use its liens and claims on Delphi assets to get GM to re-assume this plan. [00:12:05] Speaker 02: This had originally been a GM plan. [00:12:07] Speaker 02: These participants that were in this plan were all originally GM employees, spent their careers working for General Motors. [00:12:13] Speaker 02: It was undisputed that GM depended on the ability of Delphi Parks to make its cars, that the threat of those PVGC liens was a significant critical threat to the Obama administration's hope of a reemergent GM. [00:12:31] Speaker 02: And upon the emergence of the Auto Task Force and the Treasury negotiating on behalf of GM, that advocacy stopped overnight. [00:12:42] Speaker 02: And the – Mr. Stern had referenced the SIGTARP report. [00:12:48] Speaker 02: The Sigtarp report showed clearly that the Treasury was a driving force. [00:12:52] Speaker 02: I think Sigtarp testified to Congress that it was no question that the Treasury was deeply or closely involved in Delphi pension issues. [00:13:03] Speaker 02: This record was substantial. [00:13:07] Speaker 02: And the court's decision in Ray Seale's case makes clear that judicial deference to district court findings on things like [00:13:16] Speaker 02: need and availability is appropriate unless you have no explanation whatsoever of a court's legal reasoning. [00:13:22] Speaker 02: And here there is explanation of it. [00:13:24] Speaker 02: And as far as whether it is insufficient to just simply refer to sort of incorporate the respondent's reasons for the need as opposed to cutting and pasting those reasons and putting it in the opinion that there's [00:13:40] Speaker 02: And I point out that this court, just on Tuesday, issued an en banc opinion, did the same, used the same mechanism. [00:13:48] Speaker 02: It said that we, for substantially the same reasons cited in an opinion, a dissenting opinion from earlier, from the previous week, we reversed the order. [00:14:00] Speaker 02: And there's nothing wrong with that. [00:14:02] Speaker 02: That judicial economy is served by that. [00:14:04] Speaker 02: There's no, it's not hard to figure out what the district court was thinking. [00:14:07] Speaker 02: You just have to look at a separate document. [00:14:09] Speaker 02: You just have to go and look at the briefs, which again are voluminous. [00:14:12] Speaker 01: And as far as the treasuries of the problem, the briefs are voluminous and it's not [00:14:22] Speaker 01: quickly possible to take it and look back at a brief document, as was the case in the on-box you're referring to on Tuesday, that one of the people on the bench participated in, the other two didn't. [00:14:34] Speaker 01: Any event, it's rather different to incorporate a small document straightforward and a long set of briefing and expect us to go back and sort out what he was getting at, isn't it? [00:14:47] Speaker 02: Well, it is a little different, but again, [00:14:50] Speaker 02: In the context here, where the Treasury's burden is to demonstrate an abuse of discretion, and you've, I mean, we again, the district court judge had five years of briefing, 23 substantive briefs that went to issues including standing, relevance, and burden, the burdensomeness of the subpoena. [00:15:10] Speaker 02: It had multiple in-camera reviews of these documents. [00:15:14] Speaker 01: It had hearings, two hearings. [00:15:16] Speaker 01: Yeah, he had done everything he needed to do, but did he paper it the way he had to [00:15:19] Speaker 01: Well, think about the city of Bessemer in the Supreme Court, where the Fourth Circuit had said they didn't have to defer to a judge's findings because he just adopted the findings of the litigant. [00:15:33] Speaker 01: The Supreme Court said, yes you do, but in that case, Judge McMillan had detailed the findings [00:15:39] Speaker 01: He requested the plaintiffs to draw the findings, but he did detail them and set them forth instead of just saying, well, but for the reasons they want, we're doing it. [00:15:52] Speaker 01: Similarly, and I know this is not a for you case, but it's the same kind of thing. [00:15:56] Speaker 01: There's a summaries case in this court. [00:15:58] Speaker 01: I don't have the full name in front of me. [00:16:02] Speaker 01: where we said that although on a summary judgment the rules do not require the district court to make findings and conclusions on such things as uh... for you where it's fact intense in the interest of judicial economy the district judge should make findings or at least set forth can't make findings in summary judgment you should at least set forth [00:16:25] Speaker 01: the facts that he founds are undisputed, included or undisputed in the conclusions thereon, rather than three chambers have to search through it to review. [00:16:35] Speaker 01: Wouldn't that be instructive on this case? [00:16:38] Speaker 02: Well, it might be instructive, Your Honor. [00:16:40] Speaker 02: I don't disagree. [00:16:40] Speaker 02: But again, the context matters here. [00:16:42] Speaker 02: This is not a [00:16:45] Speaker 02: an issue where the judge just flippantly said, well, I'm just going to take a look at these documents, and I don't care about the president's privilege. [00:16:53] Speaker 02: To the contrary, again, he had this subpoena served in 2012. [00:16:57] Speaker 02: Five years, he afforded the Treasury multiple opportunities to supplement its privilege assertions. [00:17:04] Speaker 02: The diluted process assertions that were made, initially there was something like 900 assertions made. [00:17:11] Speaker 02: The district court found that they were all [00:17:15] Speaker 02: uh... miserably deficient were his words, and similarly the treasurer was afforded multiple opportunities to supplement these assertions of President's communications privilege. [00:17:26] Speaker 02: He did accommodate that concern. [00:17:29] Speaker 02: He found that the privilege applied, but then in a very narrow order, ordered that they would only be disclosed pursuant to protective order. [00:17:36] Speaker 02: I mean, you have to again ask what is the [00:17:39] Speaker 02: What is the threat to presidential confidentiality? [00:17:43] Speaker 02: Let alone the fact that the subject matter, these are age documents, which... Can I go back? [00:17:48] Speaker 03: Deleuze was different, wasn't it? [00:17:50] Speaker 03: Deleuze, you had... The former president wasn't assuring the privilege, just the current, right? [00:17:56] Speaker 03: And so isn't this, isn't the case for the presidential period much stronger here, where you have the former president and the current president both unitedly saying no? [00:18:06] Speaker 03: I don't know how much Dellums helps you. [00:18:08] Speaker 02: Well, I would first, Your Honor, I would say that [00:18:13] Speaker 02: It's not clear from the record that either President Obama or President Trump have asserted the privilege. [00:18:19] Speaker 02: The office of the president is said to assert the privilege. [00:18:23] Speaker 02: It's not clear who is making that assertion on behalf of the current office of the president. [00:18:29] Speaker 02: We have a letter in the record from the Department of Justice. [00:18:32] Speaker 03: But if you look at what... What would you require beyond that? [00:18:38] Speaker 03: uh... justice department is here saying that that you're going to see the president with office president what [00:18:46] Speaker 03: You're looking for a tweet? [00:18:51] Speaker 02: That might be instructive, Your Honor. [00:18:52] Speaker 02: But the previous case, as we noted in our briefs, starting with Chief Justice Marshall and the Burr case, he noted that this was a privilege, that because of the nature of the privilege, it was something that was unique to the president and could not be delegated to someone else. [00:19:09] Speaker 02: It had to be asserted by the president. [00:19:12] Speaker 02: It can't – he can't be deferred to someone else's judgment. [00:19:15] Speaker 02: It has to be in his judgment that the privilege is asserted. [00:19:17] Speaker 02: We have – the court in the Ray Seald case notes that it's an open question whether the president personally has to sign a letter that says he's asserting the privilege or whether someone on his behalf can say, oh, I've consulted the president and here's what he wants me to do. [00:19:33] Speaker 02: Here we have neither of those factors. [00:19:35] Speaker 02: Here we have – and this is an expansion of what has previously been recognized – that [00:19:42] Speaker 02: a – currently what's in the record is a Department of Justice attorney has asserted that the government continues to assert the privilege on behalf of the Office of the President, but it does not say who has authorized the Department of Justice to make that determination. [00:19:57] Speaker 02: And that may seem like hair splitting, but in terms of – It does. [00:20:01] Speaker 02: It does seem like hair splitting. [00:20:07] Speaker 02: If the argument is that there are strong constitutional imperatives that require these documents not be shown to anyone else outside the executive, the court's precedent suggests that that hairspring matters, because this is a constitutional power that belongs to the president. [00:20:26] Speaker 02: Now, we're not saying that you should overturn the finding that the presidential communications privilege applies. [00:20:31] Speaker 02: We're just saying if you're going to engage in a new round of balancing, we don't think you should. [00:20:34] Speaker 02: But if you're going to, and you're going to say, well, [00:20:36] Speaker 02: Delam's a little bit different because you need to look at the interest and confidentiality there. [00:20:42] Speaker 02: Well, there are a whole host of factors, like the age of the documents, like the nature of the documents. [00:20:48] Speaker 02: These are not revealing the plans for dealing with ISIS or anything. [00:20:52] Speaker 02: These are eight-year-old documents that talk about how the government was going to [00:20:56] Speaker 02: restructure General Motors. [00:20:58] Speaker 05: Can I back you up a minute? [00:21:00] Speaker 05: We used to have a practice in this court when we affirmed district judges who had written opinions, and they're not always required. [00:21:09] Speaker 05: In summary judgment, there's no requirement in a district court, right? [00:21:13] Speaker 05: But we would affirm, and the language that was used was substantially for the reasons given by the district court. [00:21:22] Speaker 05: And we discontinued that practice because it became clear that our affirmance would have precedential effect, but anybody reading that language wouldn't know exactly what part of the district court's opinion that we were agreeing with or refusing to agree with. [00:21:42] Speaker 05: Here, as I recall, the district judge didn't say for the reasons given by you. [00:21:49] Speaker 05: He said substantially for the reasons given by you. [00:21:54] Speaker 05: Now, how do we know what reasons that you gave were persuasive to the district court, given that language? [00:22:03] Speaker 02: I think that you raise a good point, Judge Randolph. [00:22:07] Speaker 02: It is difficult to ascertain precisely which reasons are persuasive. [00:22:11] Speaker 02: But again, on an abusive discretion standard, it is [00:22:18] Speaker 05: where the Treasury really did not... We thought it was an abuse of our discretion to affirm a district court substantially for the reasons. [00:22:26] Speaker 05: Why isn't it an abuse of discretion for the district court in this case to use the same language in terms of the presentation of counsel? [00:22:36] Speaker 02: Well, I guess it didn't only say substantially for the reasons that the respondents make. [00:22:43] Speaker 02: It said the court finds that these documents are likely to contain evidence that would go to a core issue in the Michigan litigation. [00:22:53] Speaker 05: Substantially for the reasons that the proponents of the discovery have stated. [00:23:01] Speaker 02: It incorporated, it certainly incorporated our reasoning rather than rearticulating it, but it did make clear what its reason was. [00:23:11] Speaker 02: And I'm inspired, thank you. [00:23:14] Speaker 03: Thank you very much. [00:23:25] Speaker 04: The third brief, the substantially for the reasons language appears at the April, of course, April opinion at page 11. [00:23:36] Speaker 04: That's what the court said is substantially for the reasons. [00:24:02] Speaker 04: all this sort of connects up to any prior showing to make this seem like anything other than a wishful request that who knows what will turn up is at footnote four of respondent's brief. [00:24:20] Speaker 04: That's the entire discussion. [00:24:21] Speaker 04: We responded to it in our reply brief. [00:24:24] Speaker 04: But the fact that [00:24:39] Speaker 03: Is there – could you address your friend's comment about that the presidential executive privilege has not been – or presidential communication privilege has not been asserted by the Obama administration and the Trump – by President Obama and President Trump? [00:24:55] Speaker 04: Well, I mean, to the extent that the council concedes that it was proper, I mean, that it doesn't challenge the fact that the district court correctly found. [00:25:11] Speaker 04: that the presidential communications privilege applies. [00:25:15] Speaker 04: That's not so there's no argument. [00:25:17] Speaker 03: That's what it would go to. [00:25:18] Speaker 03: No, but I think his answer was in response to my questioning about distinguishing this case from Delam's. [00:25:23] Speaker 03: I mean, one of the factors I thought was if you have past presidents who are exerting the privilege as well, that that's a factor to take into account. [00:25:34] Speaker 03: I think that's how that arrived. [00:25:35] Speaker 04: No, that's right, Your Honor. [00:25:36] Speaker 04: But the key point there is in Delam's, it was only asserted by a president who had [00:25:41] Speaker 04: already left office and this court said it wasn't even clear whether that really [00:25:52] Speaker 04: and proceeded to decide the case on that assumption. [00:25:56] Speaker 04: And what the court said was that it was an institutional privilege, which is why it cast doubt on the ability of a privilege when it had never been asserted by the White House. [00:26:08] Speaker 04: If it was asserted by the White House, we're here defending it. [00:26:11] Speaker 04: I don't think that the White House needed to file a new declaration saying that, by the way, this litigation is ongoing. [00:26:19] Speaker 04: We're represented by the Justice Department, but we want to just make [00:26:22] Speaker 04: clear to the court that we mean that. [00:26:25] Speaker 03: Thank you. [00:26:26] Speaker 03: The case is submitted.