[00:00:01] Speaker 00:
Case number 20-5233, Campaign Legal Center versus United States Department of Justice, a balance.

[00:00:08] Speaker 00:
And case number 20-5234, Campaign Legal Center versus United States Department of Justice, a balance.

[00:00:15] Speaker 00:
Mr. Synstack for the balance, Ms.

[00:00:17] Speaker 00:
Olien for the appellee.

[00:00:20] Speaker 00:
Thank you, Mr. Synstack.

[00:00:21] Speaker 05:
Thank you, Your Honor, and may it please the court, Jerry Sinsdeck appearing on behalf of the Department of Justice.

[00:00:27] Speaker 05:
Plaintiff in this case seeks drafts and embedded editorial comments on a letter that was sent by the Department of Justice to the Department of Commerce in December of 2017.

[00:00:38] Speaker 05:
Those drafts and the embedded comments within them are both pre-decisional and deliberative and therefore squarely qualify as protected by the deliberative process privilege.

[00:00:49] Speaker 05:
They are pre-decisional as the declarations submitted make clear in the sense that they predate the final and official copy of the letter that was sent in December 2017.

[00:01:02] Speaker 05:
They are deliberative in that they reflect the give and take of the agency consultative process regarding what material should be included in the letter, what material should be excluded, comments and questions and analyses of the letter itself and so forth.

[00:01:16] Speaker 05:
and therefore they plainly fall within the deliberate process privilege.

[00:01:22] Speaker 05:
The district court concluded otherwise on the ground that they were not pre-decisional because they post-dated the decision to send a letter.

[00:01:31] Speaker 05:
That is incorrect.

[00:01:33] Speaker 05:
As I mentioned, the deliberative process here is the deliberative process that culminated in the final version of the letter that was sent, in the official version of the letter that was sent to the Department of Commerce in December of 2017.

[00:01:44] Speaker 03:
Once the letter itself was finalized, so events after that would not be protected

[00:01:52] Speaker 03:
At least it's relevant to them.

[00:01:54] Speaker 03:
The only relevant decision you've flagged here is.

[00:01:57] Speaker 05:
Yeah, I mean, there could be, as your honor is well aware, I mean, there could be, if there were press inquiries, that might kick off a new deliberative process about how to respond to those.

[00:02:05] Speaker 03:
But none of these documents are about that.

[00:02:06] Speaker 05:
No, they're not.

[00:02:07] Speaker 05:
They are drafts of the final letter and an embedded commentary from Department of Justice staff on the letter.

[00:02:16] Speaker 04:
On your view, what is the relevant,

[00:02:19] Speaker 04:
decision to which these documents are pre-decisional.

[00:02:26] Speaker 05:
It's the official version of the letter that was sent on December 2017.

[00:02:31] Speaker 05:
That final letter, that's the official letter from the agency embodying the decision.

[00:02:37] Speaker 04:
I'm not sure anything turns on this, but I'm just trying to get straight in my mind what the decision is.

[00:02:46] Speaker 04:
Should we say that

[00:02:49] Speaker 04:
the Attorney General's decision that DOJ would send the letter was a final decision, but then there was a second final decision about what the letter would say, or should we think of it as the Attorney General's direct decision to file something

[00:03:18] Speaker 04:
was not final because maybe he would have changed his mind.

[00:03:24] Speaker 05:
Your honor, I agree with you.

[00:03:25] Speaker 05:
I don't think anything turns on this.

[00:03:27] Speaker 05:
I think one could say there was a deliberative process that led to the decision to send a letter, as there often will be.

[00:03:33] Speaker 05:
But there was certainly a separate or an additional or one could think of it as all the same deliberative process over what the letter should say, what its content should be.

[00:03:42] Speaker 05:
And that culminated in the final letter.

[00:03:44] Speaker 05:
So I do think it's true.

[00:03:46] Speaker 05:
There was really no final official action here until the letter went out.

[00:03:50] Speaker 05:
And so in theory,

[00:03:52] Speaker 05:
attorney general could have changed his mind at any time and not sent the letter.

[00:03:57] Speaker 05:
But if one were to conclude that the attorney general had made up his mind and was not going to be convinced otherwise, there would still exist a deliberative process over what the contents of the letter should be and so forth and so on.

[00:04:13] Speaker 05:
And for that reason, these documents fall squarely within the deliberative process privilege.

[00:04:19] Speaker 02:
How do we think about finality for these purposes?

[00:04:23] Speaker 02:
What a final decision is.

[00:04:24] Speaker 02:
I mean, the Supreme Court's recent decision in the fish and wildlife case from earlier this year repeatedly suggests to the Bennett v. Spear test for finality.

[00:04:38] Speaker 02:
And I'm wondering whether you think that is the type of inquiry we should use in FOIA cases.

[00:04:46] Speaker 05:
I mean, Your Honor, I hesitate to say that, because I don't think it's the same test that might apply in an APA action.

[00:04:53] Speaker 05:
I mean, whether this letter has a real operative effect or creates legal rights, that's a separate issue.

[00:05:00] Speaker 05:
I don't know.

[00:05:01] Speaker 05:
But I think what this court has said in cases like the Dudman case, for example, which involves official history by the Air Force, that this is the official position of the agency.

[00:05:10] Speaker 05:
This is its sort of culmination

[00:05:15] Speaker 05:
you know, of its views or of the decision-making process.

[00:05:18] Speaker 05:
So I think in that sense, this letter was the official letter.

[00:05:20] Speaker 05:
I don't, you know, I don't know that it would meet the task for SPEAR in terms of at least it would in the sense of a combination of the decision-making process.

[00:05:28] Speaker 05:
I'm not sure it would, you know, for the purposes of whether it would be subject to APA review as a final agency action.

[00:05:34] Speaker 02:
So you don't think those tests are coterminous?

[00:05:38] Speaker 05:
I mean, I'm not, I don't think it,

[00:05:42] Speaker 05:
I guess the answer to that question, I mean, I'm hesitant to answer because I don't know what the department's official position would be on that.

[00:05:48] Speaker 05:
You know, I do think when you're talking about drafts of a document, whether that, when you have the final official document, that's relevant for purposes of FOIA, whether that document would in and of itself be final agency action for other purposes.

[00:06:02] Speaker 05:
I don't think that's necessarily the case.

[00:06:05] Speaker 04:
Couldn't possibly be.

[00:06:08] Speaker 04:
the final agency action under the APA it's just exactly Jay's advice to commerce, the final agency action is commerce, passing a reg or not, adding the.

[00:06:22] Speaker 04:
Are you a lawful resident or are you a citizen or not to the census?

[00:06:30] Speaker 05:
Exactly, yeah.

[00:06:31] Speaker 05:
So I don't think it would qualify in that sense, but I don't think that's the sense that this court has used the term.

[00:06:35] Speaker 02:
It's interesting that the Supreme Court repeatedly cites to the Bennett test in discussing that, so.

[00:06:41] Speaker 03:
Yes, and I think- And references legally offensive effects.

[00:06:46] Speaker 05:
Right.

[00:06:46] Speaker 05:
And I think one thing that's clear here, you know, whatever test one applies to the final letter, certainly the drafts of that letter weren't documents that the agency treated as the final word or the official word.

[00:06:59] Speaker 05:
These are drafts circulated by staff of the department and comments and so forth from those staff members.

[00:07:06] Speaker 05:
And certainly nothing, whatever the final letter might qualify, certainly these drafts weren't treated by the agency as final and not subject to further change.

[00:07:14] Speaker 03:
struggling with another Supreme Court decision in the Commerce Department case that said the decision to claim that this question would promote the enforcement of voting rights act was contrived in the Supreme Court's words, a contrived decision.

[00:07:40] Speaker 03:
If an agency head is

[00:07:43] Speaker 03:
Since I'm making stuff up, it's completely false.

[00:07:48] Speaker 03:
But I'm going to say it.

[00:07:49] Speaker 03:
I'm going to go out to reporters, and I'm going to lie through my teeth because I don't want to tell them the real reason.

[00:07:56] Speaker 03:
Draft me up some lies.

[00:07:59] Speaker 03:
Are you aware of any case in the common law that applied the deliberate process privilege

[00:08:09] Speaker 03:
to that, where it's not, you're not really making a decision.

[00:08:13] Speaker 03:
There's no decision to be made.

[00:08:14] Speaker 03:
The guys already said, I'm exaggerating here, of course.

[00:08:18] Speaker 03:
The Supreme Court was softening its language, but for hypothetical reasons, agency head says, I'm gonna lie, just for kicks, I'm gonna lie.

[00:08:26] Speaker 03:
I'm not making any decision here.

[00:08:28] Speaker 03:
Give me some lies.

[00:08:31] Speaker 03:
If that's the deliberative process that's protected by the common law privilege,

[00:08:37] Speaker 05:
Well, Your Honor, I'm not aware of cases either way.

[00:08:41] Speaker 05:
I'm not aware of a case court saying it is or isn't.

[00:08:44] Speaker 05:
I know they're, well, I guess, obviously, as Your Honor knows, that wasn't the circumstances here.

[00:08:49] Speaker 05:
And I think it would depend.

[00:08:51] Speaker 05:
When you look at the declarations and you look at who was involved in the drafting process, there's no reason to think that the individual staff members were anything but sincere in their efforts to deliberate about this letter, which could include

[00:09:04] Speaker 05:
you know, critical comments about the letter and its purpose.

[00:09:07] Speaker 03:
So from their perspective, I'm just asking you, though, like to have kind of reconcile the Supreme Court saying that this was a contrived decision with what with the coverage of the deliberative process.

[00:09:20] Speaker 03:
Well, first of all, I don't if I were to tell you that there were cases kind of going different ways.

[00:09:26] Speaker 03:
Some would say that's just not covered in common law by the deliberative process privilege.

[00:09:33] Speaker 03:
We supply those.

[00:09:35] Speaker 05:
No, your honor, because I think as this court has said in cases like National Security Archive, I mean, what the point of the privilege is to protect staff, for example, or individuals who are participating in the consultative process to be able to provide their candid advice and so forth.

[00:09:49] Speaker 03:
So was this letter providing advice to the attorney general?

[00:09:54] Speaker 03:
Or was it just, yeah, I mean, the attorney general, I think one way of looking at how to articulate the attorney general's conclusive determined position.

[00:10:02] Speaker 05:
One way to look at it is that Attorney General, even assuming he made the final decision, then he delegated to staff the equally important considerations about which arguments to make in support of that decision and what justifications to proffer and to get advice on how to do it and so forth.

[00:10:20] Speaker 03:
I think the substance that it was going to be to help enforce the Voting Rights Act, that was already predetermined as well.

[00:10:29] Speaker 03:
And so this feels more like how are we gonna message that?

[00:10:33] Speaker 03:
The decisions were made, how are we going to message it?

[00:10:38] Speaker 05:
But I think that is a common feature.

[00:10:39] Speaker 05:
I mean, if we just, to use the reporter's community case, for example, I mean, James Comey decides to send a letter to the editor and decides to defend the policies of the FBI, there still remains a deliberative process exactly how to go about doing that and what the content of those communications.

[00:10:54] Speaker 03:
And no one, I don't think- The deliberative process there was how do we

[00:10:58] Speaker 03:
Do we stick with our old policy that's under fire?

[00:11:00] Speaker 03:
If we want to keep it, how are we going to keep it?

[00:11:05] Speaker 03:
There wasn't a fake policy or anything like that.

[00:11:13] Speaker 05:
I think the Supreme Court actually said there was nothing inappropriate about any of the individual steps in the process.

[00:11:19] Speaker 05:
And so if we're talking about deliberations among staff of DOJ about what goes into this letter, I don't think there's any reason to assume the Supreme Court thought that the staff members were engaged in anything other than a sincere effort to provide their candid comments.

[00:11:37] Speaker 03:
I made it extreme to make sure I'm hypothetical and we're really not talking about that.

[00:11:40] Speaker 03:
Obviously the case in front of just to understand the contours of the process.

[00:11:44] Speaker 03:
And I think it's a privilege, but it's what they're really not doing.

[00:11:46] Speaker 03:
They're really not advising someone.

[00:11:48] Speaker 03:
Decisions have been made.

[00:11:50] Speaker 03:
Here's how you do it, voting rights.

[00:11:52] Speaker 03:
But they are sincerely trying to figure out how best to articulate that.

[00:11:57] Speaker 03:
I didn't see that in your affidavits.

[00:11:59] Speaker 03:
It just seemed to sort of say, pre-decisional.

[00:12:02] Speaker 03:
This was pre-decisional.

[00:12:03] Speaker 03:
It was draft.

[00:12:04] Speaker 03:
It counts as opposed to,

[00:12:06] Speaker 03:
explaining for us what kind of deliberations, substantive policy deliberations, still were to be made.

[00:12:13] Speaker 03:
I can imagine all kinds of them, but it's not my job to imagine them, because I could be wrong.

[00:12:18] Speaker 03:
They're supposed to be the declarations, but they're not.

[00:12:21] Speaker 05:
Well, I guess I would point, for example, the declarations for JA 406 to 410, for example, in which there are explanations of, you know.

[00:12:28] Speaker 03:
Hang on.

[00:12:29] Speaker 03:
Let me catch up with you.

[00:12:30] Speaker 05:
Sure.

[00:12:31] Speaker 03:
I'll close it with that.

[00:12:37] Speaker 03:
All it says is we're right in the draft.

[00:12:40] Speaker 05:
I think it says, it says, you know, we are offering analyses, suggested edits, contemplating strategies.

[00:12:51] Speaker 03:
It's just whether play language for any draft.

[00:12:53] Speaker 03:
I bet you that shows up in lots of affidavits.

[00:12:56] Speaker 03:
I think there are particular eyes helping us to understand what was still being deliberated, what the concerns were.

[00:13:04] Speaker 03:
Well, certainly that I mean, I think it is contained.

[00:13:09] Speaker 05:
Sure, and I can point to more examples, but I think what is being debated as explained here is what is the content of this letter?

[00:13:19] Speaker 05:
How can we make it more persuasive or stronger, or this is something that's going to be viewed by others?

[00:13:26] Speaker 05:
And you see it notes that it includes

[00:13:30] Speaker 05:
And I don't have the exact date for this but analysis by staff of the letter comments asking for clarification comments as raising questions, and so forth, and I think that that clearly indicates that you know they're still debating what this letter should say a redline proposed edits, what are the.

[00:13:48] Speaker 03:
I guess that there were drafts, right?

[00:13:51] Speaker 03:
I guess all it does is say these were drafts, right?

[00:13:54] Speaker 03:
Graphs have red lines, edits, comments, bubbles, myths, those types of things.

[00:13:58] Speaker 03:
But there's nothing here.

[00:13:59] Speaker 03:
Again, I can imagine a lot in my head as to what people would want to be careful about in articulating something like this for all kinds of strategic reasons.

[00:14:08] Speaker 03:
But I'm imagining that in my head because I didn't see anything in your affidavits.

[00:14:13] Speaker 03:
You could say safely without revealing content, what kind of concerns.

[00:14:18] Speaker 03:
were being balanced or addressed.

[00:14:21] Speaker 05:
I mean, perhaps they're not as clear as they could be, but I would- No, they're not beyond boilerplate.

[00:14:25] Speaker 03:
It's not clear.

[00:14:26] Speaker 03:
There's nothing there that wouldn't show up in every single affidavit for a draft something or other.

[00:14:32] Speaker 03:
And maybe there's a better rebuttal.

[00:14:34] Speaker 03:
There are particular parts of any of these affidavits, particularly the OIP one that you can point me to that helped me understand in this scenario,

[00:14:45] Speaker 03:
where a final decision had been made to ask for the question and to do for it on the grounds of voting rights after enforcement.

[00:14:57] Speaker 03:
If you can point to me, take those as a given.

[00:15:00] Speaker 00:
Mm hmm.

[00:15:02] Speaker 03:
Where there's something that doesn't show up in this particular case of these cases don't show up in every other affidavit like this.

[00:15:09] Speaker 03:
Every other draft document, FOIA affidavit.

[00:15:12] Speaker 03:
That would be really helpful.

[00:15:13] Speaker 03:
You can do that everybody.

[00:15:13] Speaker 03:
OK, I can do that on the break.

[00:15:16] Speaker 05:
But I do think the policy, you know, the justifications and contents of a policy announcement are as important as the, you know, they're integral to the policy itself.

[00:15:24] Speaker 05:
So a debate about what

[00:15:25] Speaker 05:
what should be included and what shouldn't be, do implicate policy concerns.

[00:15:31] Speaker 05:
And I'm happy to answer any further questions.

[00:15:33] Speaker 03:
My colleagues don't have questions.

[00:15:34] Speaker 03:
I have a particularized couple, but I don't want to keep them.

[00:15:39] Speaker 03:
On JA-608, to start, this is a civil rights divisions on index.

[00:15:50] Speaker 05:
Yes.

[00:15:52] Speaker 03:
So the dates go very sweeping here, December to December 2017.

[00:15:58] Speaker 03:
And we all know that at some point, anything after December 12th for sure, but certainly sometime during the day on December 12th, things stopped being pre-decisional, because that's when the letter was issued.

[00:16:13] Speaker 03:
And it describes in the end of that first paragraph there that a few emails discuss the logistics of transmitting the Gary letter by fax and email.

[00:16:26] Speaker 03:
Let me agree that once you've got final sign-off and someone's just figuring out whether to do fax or email, that's not pre-decisional part of the drafting process.

[00:16:40] Speaker 03:
Or if not, point me to an affidavit statement that explains how on earth that is part of the deliberative process.

[00:16:46] Speaker 05:
Yeah, I mean, if all we're talking about is the logistics of transmitting it, you know, unless there's some, you know, I suspect I'm not going to fight you on that point.

[00:16:53] Speaker 05:
And that may have been something that was released.

[00:16:56] Speaker 05:
Because these are just suggesting that parts of the emails, but to the extent it wasn't.

[00:17:00] Speaker 03:
Well, this is just great.

[00:17:02] Speaker 03:
I don't know.

[00:17:02] Speaker 03:
If they were withheld, though, that would be.

[00:17:04] Speaker 03:
It's not clear at all to me, because you don't have the unredacted documents that this was not redacted.

[00:17:10] Speaker 03:
So you're not saying that?

[00:17:12] Speaker 05:
No, to be clear, the thing we're defending here are the drafts of the letter, the comments included, the cover emails, which also included comments of a piece.

[00:17:21] Speaker 03:
Well, they do that.

[00:17:22] Speaker 03:
But you're not defending things that are just talking about the logistics, the timing, or the

[00:17:26] Speaker 03:
Which mechanism to use?

[00:17:29] Speaker 03:
Are we certain?

[00:17:31] Speaker 05:
I'm not certain.

[00:17:32] Speaker 05:
I would assume we're not, but if it's simply just send it by fax or not.

[00:17:36] Speaker 05:
I mean, I know I was reading the record and we're going to fax this was, I think, one of the emails that was disclosed.

[00:17:44] Speaker 05:
But I would assume that's not.

[00:17:47] Speaker 05:
In any event, I apologize for that, but the focus here is on... It shows up numerous times here.

[00:17:54] Speaker 03:
It shows up again on JA 615.

[00:17:56] Speaker 05:
Well, and we did disclose a number of things that are only partially redacted, for example.

[00:18:03] Speaker 05:
So I can check if... But the focus of the appeal is not on those.

[00:18:09] Speaker 03:
Yeah, okay, I was concerned about that.

[00:18:12] Speaker 03:
Okay, there are other ones that emails just seem to be talking about timing and then there's a block out and it's not at all clear to me given these one index descriptions, whether that what followed that was talking about timing fax email or whether that was talking about

[00:18:30] Speaker 03:
a whole new deliberative process, something that would fall with the deliberative process here.

[00:18:35] Speaker 03:
So it seems to me it's a little bit, there's a lot of confusion to me, at least, between these bond descriptions.

[00:18:39] Speaker 05:
And in the bond, indices covered a number of documents, but many of which were released, some of which were released in response to the district court's opinion in this case.

[00:18:50] Speaker 05:
And I did, just to go back to an earlier question, I mean, I think we see in,

[00:18:57] Speaker 05:
The following paragraph, you know, these emails discuss edits, comments, and revisions.

[00:19:01] Speaker 05:
The emails also discuss draft versions, formulation of additional questions to elicit relevant information, and numerous edits and changes.

[00:19:07] Speaker 05:
These emails contain questions and responses.

[00:19:10] Speaker 03:
I'm not just saying that.

[00:19:13] Speaker 03:
It's the weirdness of that other line.

[00:19:15] Speaker 03:
Everything else is describing stuff you're withholding.

[00:19:17] Speaker 03:
It would seem weird to have a sentence in there that describes something that you're releasing.

[00:19:23] Speaker 05:
Yeah, I agree with that.

[00:19:25] Speaker 05:
But I'm raising that paragraph in part to your response to your honest questions about descriptions of what's contained in these drafts and comments and edits.

[00:19:37] Speaker 03:
Yeah, but there's nothing particularized there.

[00:19:39] Speaker 03:
I think we can all agree that every time you claim the deliberate process for a drafting process of a document, because it was drafts, it was comments, it was questions, it was transmissions.

[00:19:54] Speaker 03:
But this one is an unusual case where the big decision's already been made, as well as at least some level of content decision.

[00:20:03] Speaker 03:
It'll be the Voting Rights Act.

[00:20:05] Speaker 03:
And so helping courts and the public understand, because the Vaughn Index serves a public accountability process to help us understand what the type of decisions making that was left to be done is.

[00:20:19] Speaker 03:
The policy decision making.

[00:20:21] Speaker 05:
Yeah, and I guess, you know, what I would say the policy is regarding the specific contents and justifications and so forth that appear in the final letter.

[00:20:31] Speaker 03:
Thank you very much.

[00:20:32] Speaker 03:
Thank you, Your Honor.

[00:20:39] Speaker 01:
Good morning, Your Honor.

[00:20:41] Speaker 01:
Elizabeth O'Lean for the Appellee Campaign Legal Center.

[00:20:46] Speaker 01:
The court should upload the district court's findings that the drafts and emails that issue in this unusual case are not pre-decisional and not privileged for three reasons.

[00:20:56] Speaker 01:
First, withholding the documents would undermine the aim of FOIA to open agency action to the life of public scrutiny and provide attack against corruption because the Gary Ladder sets forth the contrived and pretextual justification for an already made decision.

[00:21:13] Speaker 01:
Second, the documents are a functionally final decision in draft form and that's not pre-decisional.

[00:21:20] Speaker 01:
And third, disclosure will not harm or chill the internal agency process because the Department of Justice was not engaged in policymaking when it drafted the Gary letter.

[00:21:32] Speaker 03:
If there were- If the Attorney General had said, I am not sending a letter,

[00:21:41] Speaker 03:
I am not requesting a citizenship question.

[00:21:44] Speaker 03:
This is hypothetical, obviously.

[00:21:46] Speaker 03:
I think it would damage our enforcement of the Voting Rights Act or some other statute.

[00:21:52] Speaker 03:
We are not doing it.

[00:21:54] Speaker 03:
That is my final decision.

[00:21:57] Speaker 03:
And it's my final decision.

[00:21:58] Speaker 03:
I'm making it because it's going to harm civil rights enforcement.

[00:22:04] Speaker 03:
Go draft that letter from this team.

[00:22:09] Speaker 03:
With drafts of that letter also,

[00:22:11] Speaker 03:
be released?

[00:22:14] Speaker 01:
Yes, those drafts would also not be pre-decisional because in your example where the attorney general said not to, said to write a letter saying that we will not support this rationale is essentially the same as the facts that we have here.

[00:22:33] Speaker 03:
What happened in this- How do you distinguish that from Reporters Committee, right?

[00:22:38] Speaker 03:
I'm going to do an editorial.

[00:22:40] Speaker 03:
Let's get it written and do an editorial defending our practice.

[00:22:45] Speaker 03:
Let's get it written.

[00:22:47] Speaker 01:
Yes.

[00:22:47] Speaker 01:
So the distinguishing point between the reporter's case and this case, as you wrote Judge Malak, there is no allegation that Director Comey was providing any sort of direction.

[00:22:59] Speaker 01:
or explaining the basis for a final decision to his subordinate in these emails.

[00:23:04] Speaker 03:
Well, wait, that was sort of in the sentences and the details.

[00:23:07] Speaker 03:
But there was no question that he had made clear there's going to be an editorial, and it's going to defend our policy.

[00:23:13] Speaker 03:
That's a direction to them.

[00:23:14] Speaker 03:
They didn't have discretion to defend, to make that what the substance of it was going to be.

[00:23:20] Speaker 03:
It seems to me identical to my hypothetical.

[00:23:25] Speaker 01:
It is different, Your Honor.

[00:23:26] Speaker 01:
And the reason that it's different is in this case, not only did the attorney general direct his subordinates to write the Gary letter, he also directed them the rationale to provide.

[00:23:40] Speaker 01:
So unlike Director Comey, he did provide direction explaining the basis for the final decision.

[00:23:48] Speaker 03:
And we know that.

[00:23:50] Speaker 03:
What about when the Solicitor General authorizes an appeal?

[00:23:54] Speaker 03:
And that process will identify what issues can be raised on appeal, what cannot be raised on appeal, what arguments are made.

[00:24:02] Speaker 03:
Solicitor General signs off and says, appeal, which means to the litigating appellate staff, go write the brief consistent with the directions and the memos.

[00:24:14] Speaker 03:
So does that mean every draft of a Justice Department brief authorized by the Solicitor General is also post decisional?

[00:24:22] Speaker 01:
No, Your Honor.

[00:24:23] Speaker 01:
And I think a key difference here is that the attorney general did direct the staff to use a specific rationale, but he also was not engaged in policymaking and agency oriented policy judgment when he made that determination.

[00:24:44] Speaker 01:
At the very beginning of this matter, to take a slight step back, the secretary Ross had asked

[00:24:52] Speaker 01:
his staff to reach out to the Department of Justice and other agencies to find someone willing to support his position.

[00:25:00] Speaker 01:
The Department of Justice did engage in a deliberative process where they considered the voting rights rationale and the staff determined that that was not something that they could support.

[00:25:13] Speaker 01:
It then went back to Secretary Ross who said, I want this to happen.

[00:25:18] Speaker 01:
There was

[00:25:19] Speaker 01:
a call scheduled between Secretary Ross and Attorney General Sessions.

[00:25:23] Speaker 01:
Just prior to that call, the record reflects at 190 that there was an email between the Department of Justice staff and the Department of Commerce staff and the Department of Justice wrote, it sounds like we can do whatever you need us to do.

[00:25:38] Speaker 01:
The AG is eager to assist.

[00:25:41] Speaker 01:
So that email

[00:25:43] Speaker 01:
I'm sorry, your honor.

[00:25:44] Speaker 02:
Miss Celine, why does any of this, I mean, why does any of this matter to whether there's actual policy making?

[00:25:51] Speaker 02:
I mean, I understand your position is that something unsavory happened here because political appointees disagreed with the staff and made a decision about what should happen here.

[00:26:03] Speaker 02:
But so, I mean, in a context in which you think that the decision making is

[00:26:09] Speaker 02:
is not appropriate or is is somehow fudging I mean, are you suggesting that you get a kind of super foyer.

[00:26:16] Speaker 02:
In those cases, you get kind of extra foyer, even when when they are actually deliberating and going through a process just because the policy is ultimately not one that.

[00:26:28] Speaker 02:
is one that you agree with.

[00:26:30] Speaker 02:
I guess I'm not really sure what all of this is related to with respect to whether something is deliberative.

[00:26:35] Speaker 02:
I mean, people are deliberating, maybe not in the way that you think is appropriate, but I'm not sure how that takes it out of the deliberative and pre-decisional box.

[00:26:46] Speaker 01:
So to answer your first question, no, we are not advocating for a super FOIA.

[00:26:53] Speaker 01:
And I don't think that any sort of super FOIA

[00:26:57] Speaker 01:
is necessary here that emails and documents are properly disclosed under the law as it exists today.

[00:27:08] Speaker 01:
In order for something to be pre-decisional, which it was the only prong that the district court got to, it would be a document that was prepared to assist an agency decision maker in arriving at his decision rather than to support a decision

[00:27:25] Speaker 01:
already made.

[00:27:26] Speaker 01:
And here, based on the facts, we know, particularly as evidenced by the email from the Department of Justice staff to the Department of Commerce staff, that the decision for the content of the letter was already decided.

[00:27:41] Speaker 01:
There was already a decision from the highest level of the Department of Justice that a request would be made to the Census Bureau to add the citizenship question, and that the rationale for that

[00:27:54] Speaker 01:
would be enforcement of the voting rights acts.

[00:27:58] Speaker 02:
And so isn't that as Judge Mallette was also discussing with her example of the solicitor general, I mean, isn't that a very common feature of government decision making where a senior official decides, makes a decision about what's going to happen, maybe the, you know, the primary arguments that are going to be made, but there's still a lot to be worked out in the details.

[00:28:22] Speaker 01:
Your honor, this case is very different from, and it is very unusual, and it is not like any of the other cases in the existing precedent where that could be the case.

[00:28:36] Speaker 01:
The facts that we have here and the record that we have here includes a decision from the Supreme Court that was written by Chief Justice Roberts in which he characterized the Voting Rights Act rationale

[00:28:51] Speaker 01:
as pretextual.

[00:28:52] Speaker 01:
So it was not in fact the actual reason for the decision.

[00:28:57] Speaker 01:
Any discussion that would have been occurring in the drafting of the Gary letter would not have been about an agency policy decision.

[00:29:08] Speaker 03:
I didn't see this type of argument in here.

[00:29:12] Speaker 03:
brief.

[00:29:13] Speaker 03:
I saw you arguing that this decision had already been made, and the rationale had already been given.

[00:29:20] Speaker 03:
This was all post-decisional, and they weren't claiming that this was a messaging case.

[00:29:26] Speaker 03:
I didn't see you arguing that instead there's a question about whether the deliberative process privilege applies at all in the case of, for example, hypothetically, the false or fraudulent

[00:29:41] Speaker 03:
agency pronouncements.

[00:29:46] Speaker 03:
I just didn't see that.

[00:29:46] Speaker 03:
I didn't see any cases or discussion about the common law history, the deliver process privilege.

[00:29:51] Speaker 03:
So it sounds now that you're trying to say this sort of unique for precisely those reasons.

[00:29:57] Speaker 01:
So your honor, on page eight of our brief, we did address this briefly and we said that the Gary letter itself

[00:30:09] Speaker 01:
does not reflect a typical agency process for formulating a process.

[00:30:14] Speaker 03:
It may not be typical.

[00:30:15] Speaker 03:
You know, things aren't always typical.

[00:30:18] Speaker 03:
Editorial directions aren't always typical either.

[00:30:20] Speaker 03:
I didn't see you arguing that it's a matter of the common law, deliberative process privilege that Exemption 5 brings into the FOIA.

[00:30:28] Speaker 03:
It just doesn't apply.

[00:30:30] Speaker 03:
You take it as applying, but you just say the terms aren't satisfied here.

[00:30:35] Speaker 03:
You said this is post-decisional.

[00:30:38] Speaker 03:
Come on, this is post-decisional, and there's nothing really deliberative going on.

[00:30:43] Speaker 01:
Yes, Your Honor, yes.

[00:30:44] Speaker 01:
That's a different argument.

[00:30:48] Speaker 04:
I'll give you a hypothetical, which is the government is deciding whether or not to take an appeal involving the Department of Commerce.

[00:31:02] Speaker 04:
And a lot of the line lawyers in DOJ are recommending against appeal because they think the government's position is very difficult.

[00:31:17] Speaker 04:
Secretary of Commerce calls the Attorney General and says, this is really important to us.

[00:31:25] Speaker 04:
Please help me out.

[00:31:27] Speaker 04:
Attorney General says, I understand.

[00:31:28] Speaker 04:
I'll do it.

[00:31:30] Speaker 04:
The Attorney General tells the Solicitor General, this is really important.

[00:31:35] Speaker 04:
You need to do this.

[00:31:37] Speaker 04:
the Solicitor General authorizes the appeal and gives general direction, we're gonna take the following position, it's one sentence.

[00:31:49] Speaker 04:
On that hypo, would the draft DOJ briefs implementing that decision be protected?

[00:31:58] Speaker 01:
Yeah, the draft DOJ briefs would be protected.

[00:32:02] Speaker 04:
Okay, how is that different from this case?

[00:32:05] Speaker 01:
So that is different from this case, because in the hypothetical that you provided there would be latitude amongst the DOJ staff to craft the arguments.

[00:32:21] Speaker 01:
And the difference here is that there was not

[00:32:27] Speaker 04:
I think there's latitude from the Attorney General says we're going to send a letter, taking the position that this question would help voting rights enforcement.

[00:32:43] Speaker 04:
and the end product, which is a three-page letter that reads like a substantive, very substantive legal analysis.

[00:32:56] Speaker 04:
It could be like the summary of a brief and some lawyer in DOJ decided that

[00:33:06] Speaker 04:
Reyes versus City of Farmers branch was a good case to cite for some proposition about citizen voting age population.

[00:33:16] Speaker 04:
You don't think there are legal judgments in going from the direction of the attorney general to this final product?

[00:33:25] Speaker 01:
No, your honor.

[00:33:28] Speaker 01:
I'm sorry.

[00:33:29] Speaker 01:
Yes, but the distinguishing factor in this case

[00:33:35] Speaker 01:
is that the content of the Gary letter was not the actual reason, actual policy reason for the request for the citizenship.

[00:33:48] Speaker 01:
And it was not specifically called out in our brief, but it is in the record at page 376, there is a memorandum from the House of Representatives who

[00:34:01] Speaker 01:
has done an investigation and their investigation through the interviews revealed to them that the actual purpose of this request had to do with redistricting and an attempt to entrench a political party in power.

[00:34:19] Speaker 01:
So the Gary letter as the Supreme Court found was simply a pretext

[00:34:27] Speaker 01:
it was not describing an actual policy decision of the department.

[00:34:32] Speaker 01:
And this is further demonstrated by the fact that after the Census Bureau received the very letter, they reached out to the department to confer further, like in Fish and Wildlife, there was an expectation that the draft would be provided to EPA and they could discuss it back and forth before reaching a final

[00:34:54] Speaker 01:
final biological opinion.

[00:34:56] Speaker 01:
In this case, the Census Bureau reached out to the department, and the department, as the Supreme Court found, showed no interest in further discussing this matter.

[00:35:06] Speaker 02:
You are advocating for a different standard, right?

[00:35:10] Speaker 02:
Because if Judge Katz's hypothetical would be covered by the privilege, but this letter is not, then you are asking for a different standard in the context

[00:35:27] Speaker 02:
a different standard based on the substance of how the decision was made.

[00:35:36] Speaker 02:
Because you're saying in the one context where it's a brief, there's some kind of honest decision-making process, and that's covered.

[00:35:43] Speaker 02:
But if it's a pretextual decision-making process, or if someone thinks it's a pretextual decision-making process, that is not protected by the privilege.

[00:35:52] Speaker 02:
I mean, that's the distinction you're drawing, isn't it?

[00:35:56] Speaker 01:
Yes, and I would qualify that by saying that the purpose of the deliberative process privilege is to protect the agency decision-making process rather than to protect decisions that are already made.

[00:36:18] Speaker 03:
What if the

[00:36:22] Speaker 03:
State Department or the CIA for national security reasons said, we need to issue a letter that says the reason we are drawing down our embassy staff and country acts is because of COVID concerns inside the embassy.

[00:36:47] Speaker 03:
And in fact, the reasons are,

[00:36:52] Speaker 03:
much more complicated, and it is all the roots to cover up the fact that there is say an impending military action by the United States or an ally.

[00:37:02] Speaker 03:
So it's deliberately, sorry to use that word, pretextual explanation is going to be given by a national security agency or a foreign relations agency, because that's the best way to protect the interests of the United States of America.

[00:37:18] Speaker 03:
And they say, go draft that.

[00:37:21] Speaker 03:
with drafts of that because they're protectual, openly within the agency known to be protectual reasons.

[00:37:29] Speaker 03:
Would they be available?

[00:37:32] Speaker 01:
I'm sorry.

[00:37:34] Speaker 03:
No, would they be protected or not?

[00:37:36] Speaker 03:
You're saying they would not be protected because they're protectual.

[00:37:39] Speaker 01:
So I have to admit that I am not familiar with national security law.

[00:37:44] Speaker 03:
You don't have to be.

[00:37:44] Speaker 03:
This is FOIA law.

[00:37:46] Speaker 03:
So just FOIA.

[00:37:47] Speaker 03:
With the deliberate process for blue gender FOIA, your exception that you want to make for pretextual agency decision-making, would that apply to a press statement issued by the national security or foreign relations agency that was pretextual?

[00:38:06] Speaker 01:
So assuming that there is not some other statute of which I'm not familiar with it.

[00:38:11] Speaker 03:
We're assuming there's no other exemption applicable.

[00:38:13] Speaker 03:
This is all we got, one way or the other.

[00:38:16] Speaker 01:
Yes.

[00:38:16] Speaker 01:
So I think then the key place to focus is the three aims of the deliberative process privilege.

[00:38:23] Speaker 01:
And I think in your example and in this example, the three aims are instructive.

[00:38:32] Speaker 01:
And I think that you would reach the same

[00:38:35] Speaker 01:
outcome because the purpose of FOIA is to shed.

[00:38:39] Speaker 03:
Same outcomes as in as you're asking for here so we would release the drafts of those those drafts of that press release.

[00:38:46] Speaker 03:
Right and so the three even though those drafts would be saying things about here's the real reason we're doing it but we can't say that so here's let's try saying it this way.

[00:38:59] Speaker 03:
And then someone says, well, we can't say it that way because that's going to spill the beans on some other operation we have going somewhere else in the world.

[00:39:05] Speaker 03:
So let's rewrite it this way.

[00:39:06] Speaker 03:
All those things are going to come out because the enterprise, the exercise itself was contextual.

[00:39:14] Speaker 01:
Again, Your Honor, I think it would come down to, in your hypothetical, a question of whether the State Department was actually engaged in policymaking.

[00:39:27] Speaker 01:
And in your example, it sounds like there were real policy considerations and concerns.

[00:39:35] Speaker 01:
What would drive the analysis would be whether there was any danger that the subordinates would feel inhibited by their opinions.

[00:39:45] Speaker 01:
And in this case, the internal discussions there would not be because they had agreed upfront long before drafting started, months before drafting started,

[00:39:55] Speaker 01:
that they agreed to the decision and the voting rights rationale, there would be no danger of a premature disclosure of a policy that had not been finalized, because in this case, again, the decision was made up front, the rationale was decided up front.

[00:40:13] Speaker 01:
And there would also be no danger

[00:40:15] Speaker 01:
of confusing the public about the reasons or rationales in this case, again.

[00:40:21] Speaker 02:
So Miss Eileen, your position then as a legal matter is that a document is only deliberative and pre-decisional, not just because it's deliberative and pre-decisional, but if it's deliberative and pre-decisional and serves the policy purposes of that protection.

[00:40:41] Speaker 02:
So judges then have to determine not only whether something is in fact deliberative and pre-decisional, but also whether it meets the policy purposes behind that protection.

[00:40:54] Speaker 01:
I don't think that it necessarily matters as much whether the document meets the policy purposes.

[00:41:01] Speaker 01:
And maybe I'm misunderstanding your question as much as whether it reveals an agency's or an official's mode of formulating or exercising

[00:41:11] Speaker 01:
policy judgment, that was not the case here.

[00:41:14] Speaker 01:
Enforcement of the Voting Rights Act was not a policy of the Department of Justice.

[00:41:21] Speaker 01:
It was, as the Supreme Court found, a pretextual reason for a different policy, which was redistricting.

[00:41:29] Speaker 01:
And that was what was not described in the Gary letter.

[00:41:33] Speaker 01:
I think it would be a very different circumstance if the Gary letter described the actual policy.

[00:41:41] Speaker 01:
reason, which was the redistricting.

[00:41:45] Speaker 01:
Because it describes a pretextual reason that we now understand was not the reason for the letter, I think that's the difference.

[00:41:56] Speaker 04:
I don't understand the relevance of that.

[00:41:59] Speaker 04:
Because Supreme Court said that the Department of Commerce's decision

[00:42:09] Speaker 04:
while not itself unreasonable, was pretextual because the DOJ voting rights position didn't reflect the actual reasons why the Department of Commerce wanted to add the citizenship question.

[00:42:35] Speaker 04:
So, okay, maybe the Department of Commerce wasn't being as candid as it could, but I don't understand, why does that tend to suggest that within DOJ, when the attorney general says, we are gonna take the position that this question would be helpful for voting rights enforcement,

[00:43:02] Speaker 04:
Why would that tend to show that the DOJ lawyers who were left to operationalize that decision were doing anything other than what DOJ lawyers do every time they operationalize the appeal decision by working on the brief?

[00:43:24] Speaker 01:
So I think the answer to your question goes back to the first question that you asked Mr. Sendak, which is what is the operative decision here?

[00:43:35] Speaker 01:
And I disagree that the operative, my client disagrees that the operative decision is the decision to write the letter.

[00:43:44] Speaker 01:
The operative decision is the attorney general's decision to make the request and to use this

[00:43:53] Speaker 01:
rationale.

[00:43:54] Speaker 01:
So at that point, it has removed the discretion from the staff.

[00:44:01] Speaker 01:
And so that's the difference.

[00:44:08] Speaker 01:
I'm not sure I quite answered your question.

[00:44:12] Speaker 04:
I mean, that's an answer to my question, but it doesn't distinguish every single DOJ appeal where the SG does exactly the same thing on the front end.

[00:44:25] Speaker 01:
Again, Your Honor, I would submit that the key difference here is the fact that the decision and the rationale were not the actual policy of the Department of Justice.

[00:44:43] Speaker 01:
In the briefing that you've described, in your hypothetical, sensibly,

[00:44:51] Speaker 04:
the arguments that they are putting forth to the court would be the Department of Justice's actual- The voting rights angle was the actual position of the Department of Justice.

[00:45:04] Speaker 01:
The record reflects that it was a position that the department did not support.

[00:45:15] Speaker 04:
They had actually considered the staff- It was, but it was the decision of the Attorney General.

[00:45:20] Speaker 01:
That is correct.

[00:45:21] Speaker 01:
That is correct, Your Honor.

[00:45:23] Speaker 04:
And then the line attorneys were charged with operationalizing it.

[00:45:28] Speaker 01:
That is also correct, Your Honor.

[00:45:30] Speaker 01:
But the distinction is the decision point, because if the decision is the attorney general's decision to give this order to his staff, then the Gary letter is a post-decisional

[00:45:49] Speaker 01:
document and they had no discretion.

[00:45:54] Speaker 01:
Whereas if, as the department argues, the Gary letter is the decision and the contents of it are the decision, then it wouldn't be.

[00:46:05] Speaker 01:
But it's our position as the district court found that the operative decision is the attorney general's decision.

[00:46:14] Speaker 01:
So the Gary letter is necessarily post-decisional.

[00:46:21] Speaker 03:
I like so many for their questions.

[00:46:24] Speaker 03:
Thank you very much, Mr. Landville.

[00:46:25] Speaker 03:
I give Mr. Sendak two minutes.

[00:46:30] Speaker 05:
Thank you, Your Honor.

[00:46:32] Speaker 05:
I think the only thing I have really is a response primarily to your honor's earlier questions about.

[00:46:36] Speaker 05:
I have a number of pages to cite.

[00:46:45] Speaker 05:
I think they're of a piece with what I had quoted earlier in terms of on page 456 of the JA, drafts were circulated for additional review.

[00:46:55] Speaker 05:
Sorry about that.

[00:46:57] Speaker 03:
I know we need to speed your time up by turning pages.

[00:47:00] Speaker 03:
Okay.

[00:47:01] Speaker 05:
You know, this is the middle of page paragraph 30 or the end of it.

[00:47:05] Speaker 05:
You know, they contain questions to list relevant information, comment bottles, edits, regarding the final contents of the letter for determining the final contents.

[00:47:16] Speaker 05:
You know, the next page, 457, they talk about there being opinions, comments, edits, and recommendations.

[00:47:24] Speaker 05:
There's similar wording.

[00:47:26] Speaker 03:
I know your honor is going to say that was typical of other... If you can represent to me that that's atypical language as opposed to... Well, I think what's typical in every deliberative process affidavit, I'd love to hear it.

[00:47:40] Speaker 05:
Well, I think they are similar, in fact, very similar to...

[00:47:44] Speaker 05:
Declarations made for example in Machado Amadeus I think if I'm pronouncing it correctly, quoted language very similar to this as as being satisfactory.

[00:47:54] Speaker 05:
I think the implication here is that, you know, we have the final letter we know the arguments that were made in that letter and these are comments and suggestions and edits on

[00:48:03] Speaker 05:
and so forth questions about what those justifications should be and so forth.

[00:48:08] Speaker 05:
And that implicates policy because, of course, it's in the shadow.

[00:48:13] Speaker 03:
I'm saying that right in a lot more detail about the process.

[00:48:17] Speaker 03:
I guess there's a specific process and they named the process and how it all worked internally.

[00:48:23] Speaker 03:
That's not here at all.

[00:48:24] Speaker 03:
This is this could be.

[00:48:25] Speaker 03:
any FOIA affidavit for any agency?

[00:48:28] Speaker 03:
Do we know?

[00:48:28] Speaker 03:
Well, I guess, I mean, when an agency is settling on its official position and publishing its reasons for that position, for example, of course, I think- No, but here- Most of the drafts and deliberations going into that- It's still the same, but here what you had to do was sort of say, look, even when a decision's been made, they're gonna do this, and a rationale's been given, it's still important within the government, important decisions still have to be made.

[00:48:56] Speaker 05:
regarding what the justifications are, what the support for, so, you know, what the support for that position.

[00:49:02] Speaker 03:
I told you the justification, the Voting Rights Act, so.

[00:49:05] Speaker 05:
Well, what specific arguments, what material should be included, what material should be excluded, what facts, what cases should be cited, how long the letter should be, you know, how it should be phrased and so forth.

[00:49:15] Speaker 03:
I mean, you're a better talking affidavit than I got here.

[00:49:18] Speaker 05:
Well, I apologize that wasn't made clear.

[00:49:20] Speaker 05:
I think that's the implication of these comments.

[00:49:22] Speaker 05:
And, you know, we have a number of cases, for example, like Harkorian, where, you know, there are person drafts of a letter and those were considered deliberate.

[00:49:30] Speaker 03:
We know from Machado that agencies are actually fully capable of giving us more granular agency specific explanations and what we have here.

[00:49:39] Speaker 05:
I appreciate that, Your Honor.

[00:49:42] Speaker 03:
Any other questions for my colleagues?

[00:49:44] Speaker 04:
Are you content to have us decide both deliberation and foreseeable harm on the current affidavits?

[00:49:57] Speaker 04:
You didn't have the benefit of Machado when the affidavits were written.

[00:50:02] Speaker 05:
Yes, Your Honor.

[00:50:03] Speaker 05:
I mean, I would point out the unforeseeable harm issue hasn't been briefed by or decided by the district court or briefed by the parties, sir.

[00:50:10] Speaker 03:
Or it hasn't even been raised, I don't think.

[00:50:12] Speaker 05:
Or hasn't been raised.

[00:50:13] Speaker 05:
But yeah, I mean, I think the deliberative, we are comfortable with the deliberative.

[00:50:18] Speaker 05:
I mean, that was briefed.

[00:50:20] Speaker 05:
We did brief that.

[00:50:21] Speaker 05:
And the declarations are.

[00:50:23] Speaker 05:
We appreciate that.

[00:50:27] Speaker 03:
Great.

[00:50:27] Speaker 03:
Thank you.

[00:50:27] Speaker 03:
Thanks to all.

[00:50:28] Speaker 03:
The case is submitted.