[00:00:00] Speaker 04:
Case number 21-5113.

[00:00:02] Speaker 03:
Today stands for Responsibility and Ethics in Washington versus United States Department of Justice Appellant.

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Ms.

[00:00:09] Speaker 03:
Harrington for the appellant, Ms.

[00:00:10] Speaker 03:
Wiseman for the appellant.

[00:00:13] Speaker 00:
Good morning, counsel.

[00:00:15] Speaker 00:
It's good to be back with you in person in the courtroom for arguments this morning.

[00:00:20] Speaker 00:
Ms.

[00:00:20] Speaker 00:
Harrington, please proceed when you're ready.

[00:00:23] Speaker 05:
Thank you, Chief Judge Srinivasan, and may it please the court.

[00:00:26] Speaker 05:
I'm Sarah Harrington for the Department of Justice.

[00:00:28] Speaker 05:
We asked this court to reverse the district court's order to release part two of the memo to Attorney General Barr because that memo is self-evidently privileged.

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This case implicates the government's important long-term institutional interests in protecting the integrity of agency decision-making.

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If agency advisors are chilled from giving principals their most candid advice.

[00:00:49] Speaker 00:
Can I just ask you to boost your decibel level just a little bit?

[00:00:52] Speaker 00:
Yes.

[00:00:52] Speaker 05:
Maybe lift the microphone or something.

[00:00:54] Speaker 05:
Yeah, of course.

[00:00:55] Speaker 05:
Sorry, there's the shield.

[00:00:56] Speaker 05:
I think it makes it harder.

[00:00:58] Speaker 05:
Much better.

[00:00:59] Speaker 05:
Okay, great.

[00:01:00] Speaker 05:
Thank you for letting me know.

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If agency advisors are chilled from giving their most candid advice to principals, that will lead to worse outcomes for agencies and for the public at large.

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We do not want agency lawyers to write advice in the most as if they are press releases, even and I would say particularly in high profile and politically sensitive matters, which is surely what was happening here.

[00:01:21] Speaker 03:
I know I stand the district court to have disagree with those general propositions.

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Do you?

[00:01:29] Speaker 05:
The district court thought that the government submissions were misleading and incomplete that they missed.

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But the propositions that you just presented to the court, I don't see that the district court did not agree with those general propositions.

[00:01:45] Speaker 03:
What she was dealing with was the record before her.

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Is that not correct?

[00:01:50] Speaker 05:
Well, Your Honor, what I'd say is she wasn't dealing with the full record before her.

[00:01:53] Speaker 05:
And we think that's where the real error in the district court's decision was.

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Because the district court thought that the government submissions were misleading and incomplete.

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And the remedy for that is not to grant summary judgment to the plaintiff, but to order in-camera review.

[00:02:05] Speaker 05:
And that's what the district court did.

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And once the district court reviewed the documents in-camera, then the document itself was part of the summary judgment record.

[00:02:13] Speaker 05:
And it was an error for the district court to grant summary judgment without regard to what the memo actually said.

[00:02:20] Speaker 00:
Can I ask you the following question?

[00:02:22] Speaker 00:
So suppose that what happened is that there's a conversation between the attorney general and superintendents.

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And the attorney general says, everybody knows there's not going to be a charge brought here.

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That's just forbidden.

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So no charge will be brought.

[00:02:38] Speaker 00:
But just as a thought experiment, I'm just curious about whether we think that were a charge possible, the evidence would support the bringing

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of a charge in that the evidence would show the commission of a crime, but it's a pure thought experiment.

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I'm not going to do anything with it.

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I'm just, I just want to sort of reach a decision on my own for my own self about whether that would be the case.

[00:03:00] Speaker 00:
Can you let me know your views?

[00:03:03] Speaker 05:
So I think in general, just a thought experiment memo wouldn't necessarily be a deliberative and pre-decisional.

[00:03:09] Speaker 05:
It may be deliberative, but it wouldn't be pre-decisional, but here it would not be pre-decision.

[00:03:13] Speaker 05:
Right.

[00:03:13] Speaker 05:
Or at least it would be a much harder case.

[00:03:15] Speaker 05:
And we're not asking you to.

[00:03:16] Speaker 05:
Why would it even be deliberate?

[00:03:18] Speaker 05:
I'm sorry, I couldn't hear you, Judge Seidel.

[00:03:19] Speaker 01:
Sorry.

[00:03:20] Speaker 01:
Why would it even be deliberative?

[00:03:22] Speaker 05:
Well, I mean, it would depend on what the content of the memo was.

[00:03:25] Speaker 05:
If it reflected some sort of back and forth in reaching a conclusion about that thought exercise, then it might be deliberative.

[00:03:32] Speaker 05:
But we're certainly not asking the court to rule on whether a thought exercise memo would be entitled to protection under Exemption 5.

[00:03:40] Speaker 00:
So can I just ask you, when you say that it would at least be a harder case, and I think it may not be the case that it would be pre-decisional, that's because there's no subsequent decision

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in play, because it's just essentially an academic thought experiment.

[00:03:56] Speaker 05:
Because it's expressly teed up as an academic thought exercise, as I understood your hypothetical.

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And so that's not to say that an agency couldn't say, well, let's decide this question.

[00:04:05] Speaker 05:
We're not sure what we're going to do with it, but it will be helpful to future decision making down the road.

[00:04:09] Speaker 05:
We don't know exactly what those decisions would be.

[00:04:11] Speaker 05:
I don't want to say that that couldn't be protected under exemption five.

[00:04:14] Speaker 00:
Right.

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Because there, there's a potential decision.

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I mean, you could, it could be a circumstance in which the principal would say, I don't think I'm going to do anything with this, but in order to make an informed assessment of whether I'm going to do something with it, let me know your views.

[00:04:26] Speaker 00:
I understand that, but I'm just positing a situation in which the way it's teed up is the principal says, we're not going to bring a charge.

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Everybody knows we're not going to bring a charge and there's no other particular reason I'd like this information.

[00:04:39] Speaker 00:
I'm just curious for my own,

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for my own kind of academic interest, what do you think about whether?

[00:04:47] Speaker 05:
I think that would not fall within Exemption 5.

[00:04:48] Speaker 05:
Of course, that's not what happened here.

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Here, the decision that's addressed in the memo is whether the evidence that's set out in Part 2 of the Special Counsel's report was sufficient to show that then President Trump had committed an obstruction of justice offense.

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And the reason that that decision was made was because the attorney general was deciding what, if anything, to say publicly about that determination.

[00:05:07] Speaker 00:
Right.

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So the second part of that, then, part of the construct that we've developed so far is essential.

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The first part of it alone wouldn't be enough because the first part of it might go to no end.

[00:05:18] Speaker 00:
And I think in the typical situation in which the deliberations are about whether the evidence shows the commission of a crime, it's going to be obvious what the reason is for that assessment because somebody might bring a charge.

[00:05:32] Speaker 00:
I mean, in the typical prosecutorial complex, I don't even know that you would need for deliberative process purposes a specification that the ultimate end is

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the potential bringing of a charge because it would just be self-evident if that's what prosecutors talk about.

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This case seems different because here that obvious option is just off the table by everybody's estimation.

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So then the question becomes, well, okay, then what's the purpose of what would otherwise be a thought experiment that wouldn't trigger the deliberative process privilege?

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What would be the purpose of that?

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And you've identified one and your briefing identifies that one, which is the potential public disclosure to Congress.

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And then I guess the question in my mind is,

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Where is that supported in the declarations?

[00:06:16] Speaker 05:
So I guess it was understood to be the backdrop to the FOIA request because it was the statements to Congress in the letter to Congress and in Attorney General Barr's later testimony the following month to Congress that prompted the FOIA request.

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The Attorney General announced that the decision he had made was about the sufficiency of the evidence in part two of the special counsel's report.

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That's the decision he said he made in the letter.

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That's the decision he said he had made in his testimony.

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That's the decision about which plaintiff crew sought information in its FOIA request.

[00:06:43] Speaker 05:
That's the decision that's identified in the decision line of the memo that was never redacted in the parts of the introductory paragraphs that were never redacted.

[00:06:52] Speaker 00:
When you say that's the decision, you're talking about?

[00:06:55] Speaker 05:
The decision about the sufficiency.

[00:06:57] Speaker 00:
But that could be a thought experiment.

[00:06:59] Speaker 05:
What the decision was announced, the decision came to light because it was announced in a public way to Congress, right?

[00:07:05] Speaker 05:
And so it's true that we could have been clearer about the reason that the decision was being made in our declarations and our summary judgment.

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And I want to say forthrightly, we regret that we caused confusion with the way that we wrote those.

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And we certainly didn't intend that.

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And we sincerely apologize for that result.

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But it's clear also now in part one of the memo, which we have released.

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We did not appeal the ordered release of that part.

[00:07:28] Speaker 05:
that that that sort of further explains the context for the decision.

[00:07:32] Speaker 00:
It's hard to it's hard to see part one of the memo as evidence submitted by the government that would show the purpose because part one only comes out after the district court issues its ruling.

[00:07:43] Speaker 00:
Right.

[00:07:43] Speaker 00:
And then you chose not to appeal on that.

[00:07:45] Speaker 00:
But in terms of in terms of whether the district court

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should have understood that the purpose for which the assessment was being made was with an eye towards public disclosure.

[00:07:56] Speaker 00:
It would have to precede the disclosure of part one because that wasn't out there yet.

[00:08:00] Speaker 05:
So there is one statement in the Colborne, the first Colborne declaration in paragraph 17 that mentions that the attorney general had made a public statement after making this decision.

[00:08:10] Speaker 05:
And that doesn't go all the way to what you're asking.

[00:08:12] Speaker 05:
It doesn't specifically say that was the reason, but there was an indication of that.

[00:08:15] Speaker 00:
Where is that?

[00:08:16] Speaker 05:
It's, it's, um, page 17 of the Colborne declaration, uh, paragraph 17.

[00:08:21] Speaker 05:
I'm sorry.

[00:08:22] Speaker 00:
Yeah.

[00:08:22] Speaker 05:
I don't have the appendix of the first, um,

[00:08:29] Speaker 05:
It is on Joint Appendix 51.

[00:08:31] Speaker 05:
It says, following receipt of the memorandum, the attorney general announced his decision publicly in a letter to the House and Senate Judiciary Committees.

[00:08:43] Speaker 05:
So that gives context for why the decision was made.

[00:08:45] Speaker 05:
It's on an express link, I think, which is what you're asking about.

[00:08:50] Speaker 05:
But the more important point is that once the district court ordered in-camera review, she had part one of the memo.

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She had the whole memo.

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And it was error for her to,

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order to grant summary judgment to the plaintiff based on her view of the pleadings and the declarations without regard to what was actually in the memo itself.

[00:09:06] Speaker 05:
So the remedy for incomplete pleading.

[00:09:08] Speaker 00:
Why?

[00:09:08] Speaker 00:
Because if there may be something that she could tease out from the materials that she reviews in camera, but unless the government is telling her that that's the basis for the assertion of the deliver process privilege, I don't know that a district judge is supposed to make arguments for the government.

[00:09:24] Speaker 00:
It would be one thing if the declarations were something for the briefing,

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pointed her to this as a potential point of the district court to this is a potential rationale.

[00:09:32] Speaker 00:
And then the district court sees the memo in camera and sees that it confirms an argument that the government's making.

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The question I'm trying to get at is what would give somebody that impression?

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Because typically when the assessment is whether the evidence shows the commission of a crime, it's self evident that the reason that's being asked is for purposes of determining whether to bring a charge that's off the table.

[00:09:54] Speaker 00:
But then the question becomes, well, OK, then why was that assessment being made?

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And I don't I didn't see anything in the declarations or in the briefing.

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that would give an indication that this is the reason the assessment was being made.

[00:10:06] Speaker 05:
So Chief Chief Chinnabasin, I don't think that the question, what is the reason this decision is being made is the essential question.

[00:10:13] Speaker 05:
The question is, what is the decision that's being made in the document that we say is privileged?

[00:10:18] Speaker 05:
The decision that's addressed in the document, the decision about which advice is given, is the sufficiency determination.

[00:10:25] Speaker 05:
It's not about whether to make a public statement.

[00:10:27] Speaker 05:
The reason that that decision was being made was because the attorney general was contemplating whether to make a public statement.

[00:10:34] Speaker 05:
But that's not the decision.

[00:10:35] Speaker 05:
That's not the actual decision that's being addressed in memorandum.

[00:10:39] Speaker 05:
And so I think there was confusion.

[00:10:40] Speaker 05:
The district court thought that we were trying to pretend

[00:10:43] Speaker 05:
or give the impression that the decision that's being teed up in the memo is whether to actually prosecute then sitting President Trump.

[00:10:52] Speaker 05:
Of course, that's not, we never said that.

[00:10:54] Speaker 05:
And we would have had no reason to suggest that that was the decision because first of all, nobody would have believed us.

[00:10:58] Speaker 05:
It was well known, as you say at the time, that that wasn't permitted.

[00:11:01] Speaker 00:
You couldn't- I would say, by the way, on that score, especially with the, and I appreciate and understand that the government has expressed regret for misimpressions caused by the documentation that was filed in the district court.

[00:11:13] Speaker 00:
If you only look at the reply brief and support a summary judgment, there's a lot of material in the reply brief that would lead, I think, a natural listener, a natural reader to assume that the decision that was on the table is whether to bring a charge.

[00:11:27] Speaker 00:
Because the way that's teed up is the opposing side files a document that tells the district court, well, this can't have been the decision.

[00:11:36] Speaker 00:
And the response wasn't the obvious one, which would have been, oh, you're right.

[00:11:39] Speaker 00:
Of course, that's not the decision.

[00:11:40] Speaker 00:
Something else was going on.

[00:11:41] Speaker 00:
It's to resist the argument that was being made and to say, no, that could have been the decision.

[00:11:47] Speaker 00:
And it says that a couple of occasions.

[00:11:48] Speaker 00:
So I can understand, I think, why the district court would have been operating under that impression.

[00:11:52] Speaker 05:
I don't disagree with anything you've said.

[00:11:55] Speaker 05:
I'll just offer it by way of explanation that our understanding of what the argument that the plaintiff was making was that there was no decision at all left for the attorney general to make.

[00:12:02] Speaker 05:
And that's the decision, because the special counsel had made all of the determinations and the attorney general hadn't sort of gone through the process necessary to challenge those.

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And so that was what we were resisting.

[00:12:12] Speaker 05:
And I will concede that we used language that was not as clear as it could have been.

[00:12:15] Speaker 05:
In particular, a repeated use of the adjective prosecutorial we see now caused great confusion.

[00:12:21] Speaker 05:
I want to say that I think a sufficiency determination is a prosecutorial determination because it is part of the process that a prosecutor would go through before deciding whether to bring charges.

[00:12:31] Speaker 05:
And on page three of our reply brief, we define the prosecutorial determination.

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This is on page 183 of the Joint Appendix.

[00:12:46] Speaker 05:
We define the prosecutorial

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The attorney general was making a decision about the prosecutor decision regarding whether the evidence developed by a special counsel Mueller's investigation was sufficient to establish that the president had committed an obstruction of justice.

[00:12:59] Speaker 05:
That is the decision that's addressed in the memo.

[00:13:01] Speaker 05:
And so we think that and other things give context to our use of the word prosecutorial to describe what was going on.

[00:13:08] Speaker 05:
We also think just the larger context, the backdrop of the request and the things that were happening in the world made clear that the attorney general could not have been contemplating

[00:13:17] Speaker 05:
an actual prosecution.

[00:13:18] Speaker 05:
And it wouldn't have made any sense.

[00:13:22] Speaker 00:
I'm sorry, Judge Rogers.

[00:13:24] Speaker 04:
Go ahead.

[00:13:27] Speaker 00:
It wasn't the prosecutorial.

[00:13:29] Speaker 00:
It wasn't the use of the word prosecutorial.

[00:13:30] Speaker 00:
Although I take your point, I appreciate the acknowledgement that the word prosecutorial could be misleading.

[00:13:39] Speaker 00:
It was other portions of the reply memorandum where it talked about the decision whether to initiate.

[00:13:45] Speaker 00:
a prosecution as if that were the decision on the table and I can point to those I think you probably know what those statements are but yes they are in there and that's the response to the argument that was put forward by crew and it didn't make the obvious response which is oh that that decision was never on the table and you may be right that based on everything we know about the world especially in hindsight what we know about the world now that that decision in fact wasn't on the table but the way that it was written

[00:14:14] Speaker 00:
could well lead a reader to assume that that decision in fact was on the table because that's the way the government was describing it in the reply memorandum.

[00:14:23] Speaker 05:
I understand.

[00:14:23] Speaker 05:
And all I can say, again, by way of explanation is that we were responding to what we viewed as Cruz's argument that there was no decision for the attorney general to make.

[00:14:31] Speaker 05:
And I understand, and I'm not going to fight what you're saying, that the language we used had the result of misleading people and causing confusion.

[00:14:40] Speaker 05:
But again, the remedy for district court for government pleadings in a FOIA case that are misleading or that are incomplete is to order in-camera review.

[00:14:47] Speaker 05:
And that's exactly what the district court did here.

[00:14:50] Speaker 05:
In her amendment order ordering in-camera review, she said she wanted to

[00:14:52] Speaker 05:
do it to help her make an informed de novo determination about the privileged nature of the document.

[00:14:58] Speaker 05:
And so once she has the document, that is part of the summary judgment record.

[00:15:02] Speaker 05:
And if at that point the district court wants to have more sort of adversarial process, once the district court can see the ways in which the district court, excuse me, the government pleadings fell short, then the court can order supplemental pleadings and supplemental briefing.

[00:15:16] Speaker 05:
But what it's not appropriate for the court to do is to grant summary judgment to the plaintiff based on

[00:15:22] Speaker 05:
the perceived failings of the government pleadings, even when the document itself, which is at that point part of the record, is self-evidently privileged.

[00:15:30] Speaker 03:
Well, let me ask you about the government's response to the district court's first order, where this was after in-camera review.

[00:15:40] Speaker 03:
And the district court made the statement that under the statutory scheme, the burden is on the government.

[00:15:48] Speaker 03:
And having read what the government presented it, the district court concluded that the government had not met its burden and that the district court was not obligated to try to parse out something, much less to fill in the blanks that either the government meets its burden or it does not.

[00:16:14] Speaker 03:
Then when she issued

[00:16:17] Speaker 03:
the opinion on the motion for stay, she repeated that.

[00:16:21] Speaker 03:
And what I didn't find is what your argument here has been in part, namely that the district court failed to appreciate that in-camera review was the solution to the government's deficiencies.

[00:16:41] Speaker 03:
where was that argument presented to the district court?

[00:16:48] Speaker 05:
Well, I don't have, and my red light is on, I assume.

[00:16:52] Speaker 05:
Oh yeah, please.

[00:16:53] Speaker 05:
I don't have our stay motion in front of me, and so I can't point you to the exact pages, but I believe we did say, you know, the document itself is self-evidently privileged.

[00:17:02] Speaker 05:
What document?

[00:17:04] Speaker 05:
That the memo, once she viewed the memo in camera.

[00:17:09] Speaker 03:
The entire memo.

[00:17:12] Speaker 03:
reading section one as well as section two or part one, as well as part two.

[00:17:18] Speaker 05:
Our view is that part one of the memo was also privileged, but we decided not to appeal with respect to part one.

[00:17:25] Speaker 03:
No, no, Council, understand my question.

[00:17:27] Speaker 03:
I understand you to say that the reason in-camera review is allowed is so the district court in part

[00:17:40] Speaker 03:
can understand what's going on, even if the district court has concluded that the declarations submitted by the government are insufficient to meet its burden of proof.

[00:17:59] Speaker 03:
Where was that argument presented to the district court?

[00:18:04] Speaker 03:
Because the way I read it, state order, it reaffirms

[00:18:10] Speaker 03:
that the government never made the argument that some obligation was on the district court having conducted in-camera review.

[00:18:21] Speaker 03:
In other words, just as you say it was self-evident, so too it seemed to me that the government's concern here, that argument would have been one that would have come to the government's attention in discussing how to respond

[00:18:38] Speaker 03:
to the district court's initial order.

[00:18:42] Speaker 03:
I don't find that, rather, as a district court's stay opinion suggests, what the government did was to, I think the district court used the words, double down on its argument.

[00:18:59] Speaker 05:
Right.

[00:18:59] Speaker 05:
So we don't agree with all the district court's characterizations of what we've argued in the case.

[00:19:04] Speaker 05:
It was a premise of the district court's request for in-camera review.

[00:19:09] Speaker 05:
The district court, in the minute ordering in-camera review, said that the court wanted to make a de novo determination based in part on the memo, that seeing the memo would help the court make a de novo determination.

[00:19:20] Speaker 05:
And so in our view, that's a fact.

[00:19:21] Speaker 03:
That is the government's position, and I understand the argument.

[00:19:24] Speaker 03:
What I'm asking is whether that argument was ever presented to the district court in Haikverba.

[00:19:32] Speaker 03:
In other words, whatever the deficiencies of the agency's declaration, if the district court, Sue Espante, decides to conduct in-camera review over the government's opposition, then that is the

[00:19:53] Speaker 03:
review that determines whether or not the government has met its burden of proof, or maybe your argument is only that that can give rise to an obligation, sua sponte, by the district court to seek further declarations from the government.

[00:20:15] Speaker 03:
Do you know what that argument presented?

[00:20:18] Speaker 05:
So again, it was said by the district court in her request for on camera review.

[00:20:22] Speaker 05:
And so it's not, you know, you wouldn't normally require a government lawyer to say, you have to look at this piece of evidence and that piece of evidence.

[00:20:30] Speaker 05:
It's just part of the summary judgment record and the district.

[00:20:34] Speaker 03:
That to my question is that the government never made that argument to the district court.

[00:20:41] Speaker 05:
I don't know if we said it expressly in our stay motion, to be honest.

[00:20:45] Speaker 03:
That's all I need to know.

[00:20:46] Speaker 05:
Thank you.

[00:20:47] Speaker 05:
I don't know if we said it expressly.

[00:20:51] Speaker 01:
Ms.

[00:20:51] Speaker 01:
Harrington, I want to ask you a different kind of question here.

[00:20:58] Speaker 01:
So in Sierra Club, your declaration say

[00:21:08] Speaker 01:
that the attorney general saw this document prior to sending his letter to Congress, right?

[00:21:16] Speaker 01:
And you cite that for the proposition that this is pre-decisional.

[00:21:20] Speaker 01:
But in Sierra Club, the court said that that's not enough, that the document has to, quote, help the head of the agency, whoever it is, here the attorney general, help the attorney general formulate his position.

[00:21:37] Speaker 01:
So, and it's your burden, it's the government's burden to show that.

[00:21:42] Speaker 01:
And if it isn't that, it's just explanatory, right?

[00:21:45] Speaker 01:
You agree with that.

[00:21:47] Speaker 01:
If it's just a memo that explains a previously made decision, then it's not pre-decisional, it doesn't qualify.

[00:21:54] Speaker 01:
It has to help him formulate his decision.

[00:21:57] Speaker 01:
And what can you point to in the record that suggests that that's what this was?

[00:22:01] Speaker 05:
I don't think it's quite right that the document itself has to help the Attorney General formulate his decision.

[00:22:07] Speaker 05:
It's the advice that is memorialized in the document that has to help the Attorney General.

[00:22:11] Speaker 01:
What's the difference between those two things?

[00:22:13] Speaker 01:
I point that out just because the advice, the document contains the advice that's in it.

[00:22:19] Speaker 05:
But this particular document, it became clear was finalized and signed two hours after the attorney general sent the letter.

[00:22:26] Speaker 05:
And so I don't want to answer your question and give the misleading impression.

[00:22:30] Speaker 01:
I have a different question about that.

[00:22:33] Speaker 01:
But I want to know what I mean, assuming assume I think that's what the law is.

[00:22:38] Speaker 01:
Can you point to anything in the record, anything at all that suggests that

[00:22:44] Speaker 01:
the Attorney General was formulating his position during this time.

[00:22:48] Speaker 01:
That is that it wasn't a memorandum drafted in support of a decision that had been made Friday night.

[00:22:54] Speaker 01:
That's what I'm looking for.

[00:22:55] Speaker 01:
Is there anything that suggests at all that as far as the Attorney General was concerned, this question was open at any time during those three days?

[00:23:06] Speaker 05:
And I think, yeah, so there are declarations that say it was pre decisional that the advice.

[00:23:11] Speaker 01:
But saying they're pre decisional is the conclusion.

[00:23:13] Speaker 01:
It doesn't tell us whether or not I mean, even even if I'm willing to accept.

[00:23:18] Speaker 01:
Well, I will.

[00:23:18] Speaker 01:
I accept the declarations proposition that he saw these ahead of time.

[00:23:23] Speaker 01:
That's what you say.

[00:23:25] Speaker 01:
But I don't think that answers our question about whether it's pre decisional to be

[00:23:29] Speaker 01:
He could have seen it ahead of time and it could have been a document that was simply drafted to explain the decision he had made Friday night.

[00:23:37] Speaker 01:
It seems to me you have to show something more and I'm asking whether there's anything I've missed here.

[00:23:44] Speaker 05:
But there's a couple of things.

[00:23:45] Speaker 05:
In the declarations, it describes that there were various earlier drafts of the memorandum.

[00:23:50] Speaker 05:
That they were what?

[00:23:51] Speaker 05:
There were earlier drafts of the memorandum that were given to the attorney general in the course of the weekend over which he wrote the letter to Congress and made.

[00:23:58] Speaker 01:
Is there anything about those memos that suggests that they weren't simply earlier drafts of an explanatory memo?

[00:24:05] Speaker 05:
I think if you look at the memo itself, it has all of the sort of indicia of being pre-decisional.

[00:24:10] Speaker 05:
It is written in the form of giving advice

[00:24:13] Speaker 05:
It is not a memo that says, here are the reasons you said you're making this decision, we're writing them down, right?

[00:24:18] Speaker 01:
It's- Well, I certainly wouldn't write it that way if I were trying to protect this from disclosure.

[00:24:23] Speaker 01:
I mean, why would anybody write a memo that way?

[00:24:26] Speaker 01:
I think if you're trying to memorialize- The question I'm trying to get at is, if you just look at the record we have before, just the existing record in this case, including your declarations and the document, what this looks like,

[00:24:44] Speaker 01:
is that the first draft of the letter to Congress was done Friday night.

[00:24:52] Speaker 01:
This memo didn't surface until sometime late the next.

[00:24:57] Speaker 01:
And it wasn't issued until after the Attorney General sent his letter to Congress.

[00:25:04] Speaker 01:
And in addition to that, in his letter to Congress, the Attorney General said, this is a decision made along with the Deputy Attorney General

[00:25:14] Speaker 01:
who was intimately involved in drafting this memo.

[00:25:17] Speaker 01:
So if you just sit back and look at the record we have, what it looks like is a memo drafted to justify or explain a decision immediately made.

[00:25:31] Speaker 01:
That's not a pre-decisional.

[00:25:35] Speaker 01:
That's not protected.

[00:25:39] Speaker 01:
And since it's the government's burden,

[00:25:42] Speaker 01:
To prove that this is covered by an exemption, I'm looking for any evidence to suggest that my impression from what I've said so far is wrong.

[00:25:53] Speaker 01:
Is there anything I've missed in describing my perception of what I see this?

[00:26:00] Speaker 01:
What have I missed?

[00:26:02] Speaker 05:
So I think part of your impression comes from the timing of the memo and the letter being written sort of simultaneously.

[00:26:07] Speaker 05:
Part of it, only part of it.

[00:26:08] Speaker 05:
But that happens all the time when you have something that's happening quickly.

[00:26:11] Speaker 05:
You could have a bench memo and a draft order come together to a judge.

[00:26:16] Speaker 05:
And it doesn't mean that the bench memo isn't advice giving and pre-decisional.

[00:26:20] Speaker 05:
It might just be that the timing is such that you need to draft them at the same time.

[00:26:23] Speaker 01:
Right, but if you look at the bench memos I get or the opinion letters I wrote in the many years I practiced law, you can see in both of them

[00:26:31] Speaker 01:
a discussion of what the options are, of what the position should be, a discussion of contrary evidence.

[00:26:42] Speaker 01:
And that's what I don't see here.

[00:26:46] Speaker 01:
And again, don't misunderstand what I'm saying.

[00:26:50] Speaker 01:
I'm simply stating to you as an observer here what the record looks like to me.

[00:26:56] Speaker 01:
And to me, the record, that impression I get,

[00:27:02] Speaker 01:
suggests that this document does not qualify.

[00:27:05] Speaker 01:
And what can you do to dispel that view I have?

[00:27:10] Speaker 01:
Is there anything in the declaration I've missed?

[00:27:13] Speaker 01:
I haven't seen it.

[00:27:14] Speaker 01:
There's no emails or anything.

[00:27:15] Speaker 01:
We don't know about that.

[00:27:18] Speaker 05:
I would say the best evidence is the memo itself, which, again, is written in the form of giving advice.

[00:27:23] Speaker 05:
It's written from subordinates to a superior.

[00:27:26] Speaker 05:
The authors of the memo didn't have decision-making authority.

[00:27:29] Speaker 05:
These are all things that this court has said are indicia of something being pre-decisional.

[00:27:33] Speaker 05:
It gave the attorney general the opportunity, the option at the end, to accept or reject the advice.

[00:27:39] Speaker 05:
And the substance of the advice was given to him before he made his decision.

[00:27:42] Speaker 05:
That we know from the declarations.

[00:27:46] Speaker 05:
To the extent you're suggesting that there's a suspicion that the attorney general said to the drafters of the memo, here's where I want to come out at the beginning of the process, that wouldn't be enough to make it not pre-decisional or deliberative.

[00:27:58] Speaker 01:
Well, but why not?

[00:28:00] Speaker 01:
Because it's the government's burden to prove this.

[00:28:03] Speaker 01:
I mean, you have to make your case that this is, in fact, pre-decisional.

[00:28:09] Speaker 01:
And it can't.

[00:28:10] Speaker 01:
We all know how opinion letters are written.

[00:28:12] Speaker 01:
I mean, you're totally right about this opinion letter.

[00:28:15] Speaker 01:
It says, you know, it's addressed to the attorney general.

[00:28:20] Speaker 01:
It's addressing the legal issue.

[00:28:21] Speaker 01:
I mean, law firms write opinions letters like this all the time.

[00:28:28] Speaker 01:
That's what they look like.

[00:28:29] Speaker 01:
And they're designed to support a decision that was already made.

[00:28:32] Speaker 01:
That's what this one looks like.

[00:28:33] Speaker 05:
But I don't think that there's any addition of that in this case.

[00:28:36] Speaker 05:
And there's no indication anywhere in the record, in particular in the memo, that the Attorney General adapted the reasoning of the recommendation memo as his own.

[00:28:45] Speaker 05:
I just want to say, I think it's particularly important when you have a decision maker say to his or her advice givers, like, here's sort of where I'm thinking we should go with this.

[00:28:53] Speaker 05:
It's particularly important to protect the ability of the advice givers to give candid advice, because you especially want them to be able to say, you said you wanted to do this.

[00:29:01] Speaker 05:
This is why we think it's not a good idea.

[00:29:02] Speaker 05:
Here are things you should think about for the long-term consequences of that.

[00:29:05] Speaker 05:
And so we want to be able to protect ex ante their ability to really give their candid advice, in particular when they're trying to talk someone out of something.

[00:29:13] Speaker 05:
And so I don't think the fact that you might think that the attorney general gave an indication of where he was heading would suggest that it's not pre-decisional.

[00:29:23] Speaker 00:
Let me make sure my colleagues don't have additional questions for you, Miss Harrington.

[00:29:28] Speaker 00:
Thank you.

[00:29:29] Speaker 00:
Thank you.

[00:29:29] Speaker 00:
We'll give you some rebuttal time.

[00:29:48] Speaker 02:
Good morning and may it please the court.

[00:29:51] Speaker 02:
The Department of Justice made a strategic decision in this case to defend withholding portions of the memo at issue as legal advice and prosecutorial analysis provided the Attorney General to make a prosecutorial decision.

[00:30:08] Speaker 02:
Pru challenged that characterization, arguing that the attorney general lacked the authority to prosecute the memo, prosecute the president, and that the memo's true purpose was to falsely shape public perception about the special counsel's obstruction of justice evidence in advance of the report's publication.

[00:30:34] Speaker 03:
So two things, just to be clear.

[00:30:37] Speaker 03:
One, you argue that the attorney general had delegated the prosecutorial authority here to the deputy attorney general earlier on.

[00:30:47] Speaker 03:
And I'd like to know whether you stick with that.

[00:30:51] Speaker 03:
And secondly, one of counsel's argument that we just heard in response to Judge Tatel's question, particularly

[00:31:02] Speaker 03:
the hypothetical that even if the attorney general said, here's what I want to say to Congress.

[00:31:08] Speaker 03:
Now, write the memo justifying that.

[00:31:11] Speaker 03:
And the memo is then written.

[00:31:14] Speaker 03:
But it comes in in saying, well, we've looked at this independently.

[00:31:19] Speaker 03:
And we think that's the way to go.

[00:31:22] Speaker 03:
Or here are some other options for you to consider.

[00:31:29] Speaker 03:
What's your response to that?

[00:31:31] Speaker 02:
Well, Judge Rogers, as to your first question, if I can.

[00:31:36] Speaker 02:
Yes, I'm sorry.

[00:31:38] Speaker 02:
Would you repeat your first question?

[00:31:40] Speaker 02:
I was caught up in your second one.

[00:31:41] Speaker 02:
I apologize.

[00:31:45] Speaker 03:
My first question.

[00:31:49] Speaker 03:
You state.

[00:31:51] Speaker 03:
That the attorney general.

[00:31:55] Speaker 03:
Oh, the authority before.

[00:31:59] Speaker 03:
these events that we're discussing this morning, had delegated to the deputy attorney general the decision whether to prosecute the president.

[00:32:12] Speaker 02:
Yes.

[00:32:14] Speaker 02:
Our argument, your honor, was actually that having appointed a special counsel, the matter resided with the special counsel.

[00:32:22] Speaker 02:
And under the department's regulations, they carve out a limited role for the attorney general.

[00:32:29] Speaker 02:
And where the attorney general disagrees with the decision that the special counsel makes, there is a process that the attorney general must follow.

[00:32:38] Speaker 03:
We did also understand it.

[00:32:40] Speaker 03:
What your doctor said was the decision to prosecute had been delegated that the deputy attorney general was to decide about the appointment of a special prosecutor.

[00:32:52] Speaker 03:
All right.

[00:32:52] Speaker 03:
All that is consistent with what you said, but I want to be clear.

[00:32:56] Speaker 03:
as to what is your position before this court?

[00:33:02] Speaker 02:
Well, we remain of the view that once the special counsel was appointed, the attorney general did not have the authority to prosecute the president.

[00:33:13] Speaker 02:
That was outside of his purview.

[00:33:15] Speaker 02:
But we also argued to the district court and would argue here today that separately under the department's own policy,

[00:33:25] Speaker 02:
about not prosecuting a sitting president, he couldn't have prosecuted the president either.

[00:33:31] Speaker 02:
I hope that answers your question.

[00:33:34] Speaker 01:
And now, yes, I'm sorry.

[00:33:37] Speaker 01:
Judge Rogers, I'm sorry, did you have a follow-up?

[00:33:39] Speaker 03:
Were you going to follow up?

[00:33:42] Speaker 03:
Well, I know you had a second part.

[00:33:44] Speaker 03:
I'm talking, I'm sorry, to my colleague.

[00:33:46] Speaker 03:
Was he going to follow up or was he going to ask a question on the subject?

[00:33:51] Speaker 01:
He's prepared to answer the second part of your question, so you just keep going.

[00:33:54] Speaker 02:
And the second part of your question was as to the memo and if the memo were phrased as the way you described.

[00:34:07] Speaker 02:
You know, there are a variety obviously of hypotheticals, some which could be covered by the privilege, some which could not.

[00:34:14] Speaker 02:
But we submit that the circumstances here

[00:34:17] Speaker 02:
it's clear that this was a process that was memorializing a preordained decision.

[00:34:25] Speaker 02:
And that's clear from the context.

[00:34:27] Speaker 02:
As the district court noted, when the department got the special counsel's report on March 22nd, the volume devoted to obstruction of justice was nearly 200 pages in length.

[00:34:41] Speaker 02:
And of course, beneath that report were hundreds if not thousands of pages of evidence.

[00:34:46] Speaker 02:
The department claimed that it looked at all that stuff and applied the principles across federal prosecution.

[00:34:53] Speaker 02:
And as the district court noted, the court, the department had barely had time to skim the report, much less analyze it.

[00:35:02] Speaker 02:
This is just further evidence that also was reinforced by the emails that were disclosed to crew on which the district court relied.

[00:35:10] Speaker 02:
The district court, as you know, prepared a whole chronology

[00:35:14] Speaker 02:
of how this played out.

[00:35:16] Speaker 02:
The memo came to the department sometime on March 22nd.

[00:35:20] Speaker 02:
By the evening, they had already put pen to paper to draft the letter to Congress that would set forth the attorney general's position that the evidence was not sufficient to prosecute the president for obstruction of justice.

[00:35:37] Speaker 01:
By the next morning... Suppose you're right about that.

[00:35:42] Speaker 01:
Why couldn't it be that?

[00:35:43] Speaker 01:
OK, so Friday night.

[00:35:46] Speaker 01:
Let's just assume yeah, maybe they had a pretty good view about what their position was Friday night.

[00:35:50] Speaker 01:
They could read the executive summary.

[00:35:51] Speaker 01:
Not so hard to even read the couple of hundred pages.

[00:35:55] Speaker 01:
Maybe they didn't have time to get into the.

[00:35:57] Speaker 01:
Underlying documents by that point, but so during the week and they evolve this opinion letter, which may well have dug much deeper and reaffirmed their original instincts.

[00:36:10] Speaker 01:
Why wouldn't that be?

[00:36:11] Speaker 01:
perfectly under the exemption.

[00:36:16] Speaker 02:
Well, you're right that there could have been more play in the decision-making process than I have suggested.

[00:36:22] Speaker 02:
Wait, say that again.

[00:36:24] Speaker 02:
What?

[00:36:24] Speaker 02:
There could have been more play in the decision-making process than I have suggested.

[00:36:31] Speaker 02:
But that said, what that would mean is that earlier version

[00:36:36] Speaker 02:
would be protected by the deliberative process privilege.

[00:36:40] Speaker 02:
But the timeline here shows that by the time the Attorney General got the memo, had already received all the advice,

[00:36:52] Speaker 02:
He had considered that advice.

[00:36:55] Speaker 02:
He had acted on that advice.

[00:36:56] Speaker 01:
Well, how do you know all that?

[00:36:57] Speaker 01:
That's not in the record.

[00:36:59] Speaker 02:
Yes, it is, because he wrote a final, he wrote a letter to Congress memorializing that.

[00:37:04] Speaker 02:
The group were working on those two documents in tandem.

[00:37:08] Speaker 02:
There's nothing to suggest any variance between the letter to Congress.

[00:37:14] Speaker 00:
But I don't understand.

[00:37:15] Speaker 00:
I'm sorry, go ahead.

[00:37:16] Speaker 01:
Just one moment.

[00:37:17] Speaker 01:
Do you think there are any circumstances under which

[00:37:21] Speaker 01:
The development of a memo simultaneously with the making of the decision could be pre-decisional, could be deliberative?

[00:37:28] Speaker 02:
I think there are circumstances, yes.

[00:37:30] Speaker 01:
Give me an example.

[00:37:31] Speaker 02:
This is not one of them.

[00:37:32] Speaker 01:
But just give me an example of one that would be.

[00:37:37] Speaker 02:
Well, it would have to be a case.

[00:37:40] Speaker 02:
It would have to be a case.

[00:37:41] Speaker 02:
Where the decisional process is

[00:37:44] Speaker 02:
was still an ongoing process at the time the memo was created, because it all goes back to the purpose of the deliberative process.

[00:37:52] Speaker 01:
So is that the defect here?

[00:37:54] Speaker 01:
Is the defect from your perspective that the government hasn't shown that?

[00:37:58] Speaker 02:
Yes.

[00:37:58] Speaker 01:
OK, but what about Ms.

[00:37:59] Speaker 01:
Harrington's answer to my question?

[00:38:01] Speaker 01:
She should just read the opinion letter.

[00:38:03] Speaker 01:
I'm sorry.

[00:38:04] Speaker 01:
Her answer to my question about that was the best evidence that this is deliberative is the opinion letter, is the memo itself.

[00:38:12] Speaker 02:
We don't.

[00:38:13] Speaker 02:
Well, the memo.

[00:38:14] Speaker 01:
Why is that wrong?

[00:38:16] Speaker 02:
It's not wrong, but here we have to be wrong for you to win your case.

[00:38:20] Speaker 02:
Well, no, here we have the added benefit of the timeline.

[00:38:24] Speaker 02:
We have external, we have evidence that was introduced in this record that came from the government in response to Cruz Foyer request emails that lay out and give much more detail to the process that produced this memo than anything the government presented to the district court.

[00:38:42] Speaker 00:
So I didn't understand the district court to accept the proposition that this was a fait accompli and that all the decision had already been made.

[00:38:50] Speaker 00:
And this was just papering over decision that had already been made.

[00:38:52] Speaker 00:
And the reason I didn't understand the district court

[00:38:54] Speaker 00:
to support that proposition is that the district court acknowledged that this actually might have been protected by the delivery process privilege if the right arguments had been made by the government, right?

[00:39:04] Speaker 00:
That's what the district court said on page 338.

[00:39:07] Speaker 02:
Yes, that is the application.

[00:39:08] Speaker 00:
And it couldn't have said that if it thought that this was just a fait accompli, right?

[00:39:13] Speaker 00:
So it was possibly protected by the delivery.

[00:39:15] Speaker 00:
If I can just finish, it was possibly protected by the deliberative process privilege.

[00:39:20] Speaker 00:
And even the district court understood that to be the case and accepted that proposition.

[00:39:24] Speaker 02:
You're correct.

[00:39:25] Speaker 02:
She did not go, the district court judge does not go as far to say this is a fait accompli.

[00:39:29] Speaker 00:
She did, however... But that is the argument that you're making, I think.

[00:39:32] Speaker 02:
Well, all we're suggesting is the evidence strongly suggests that this was not a true deliberative process, that it was prejudged from the outcome.

[00:39:40] Speaker 00:
I don't think she accepted that proposition either because she thought...

[00:39:43] Speaker 00:
I think it actually could have been a true deliberative process if the government had made the right arguments about what the deliberative process was going towards.

[00:39:52] Speaker 02:
Yes, but her her decision also notes how little time there was for the department to have truly engaged in a deliberative process.

[00:40:01] Speaker 02:
And that's when she's discussing the separate ground for her opinion, which is that the memo is not pre decisional.

[00:40:08] Speaker 02:
under, you know, given the timeline and the authority and the purpose of the deliberative process, which is to protect a deliberative process, not simply deliberations that are completed.

[00:40:23] Speaker 00:
But I mean, I think we have to be very careful about adopting any kind of doctrine that would prevent the following kind of dynamic from playing out in the government.

[00:40:32] Speaker 00:
The principal says to subordinates, I have a pretty good idea of where I'm going.

[00:40:36] Speaker 00:
I think I know where I'm going.

[00:40:38] Speaker 00:
Obviously, persuade me otherwise if you think otherwise, but let's start to write up the analysis.

[00:40:44] Speaker 00:
Give me a recommendation.

[00:40:45] Speaker 00:
Obviously, if you're thinking through it and you think differently, try to persuade me, but I've got a pretty good idea of where I'm headed.

[00:40:50] Speaker 00:
That still, I think, would fall within whatever recommendation ensued as a result of that would still fall within the delivery process.

[00:40:57] Speaker 02:
Certainly agree that had the government presented those facts, this would be a much stronger case for them.

[00:41:03] Speaker 02:
That, of course, is not the argument they made.

[00:41:06] Speaker 02:
That's not what the district court found.

[00:41:08] Speaker 02:
And the district court also noted that this was a process that all the parties were working in tandem, including the attorney general.

[00:41:16] Speaker 00:
But that part, I don't understand, that part of it doesn't seem to do a ton of work.

[00:41:21] Speaker 00:
because it would be natural for all the parties to be working in tandem if it was all part of the same decisional calculus, which I think everybody, including the government, agrees it was.

[00:41:30] Speaker 00:
It's just that the decision hadn't been finalized until the ultimate decision was made to send the letter to Congress.

[00:41:36] Speaker 02:
Again, I think it would raise the question of whether this was a true deliberative process.

[00:41:41] Speaker 02:
But as the district court pointed out in its state decision,

[00:41:46] Speaker 02:
The primary reason for her ruling was the arguments that the government had advanced as to why this memo was privileged were demonstratively false.

[00:42:00] Speaker 00:
I'm glad you went to that.

[00:42:02] Speaker 00:
Can I focus on that for a second?

[00:42:03] Speaker 02:
Yes.

[00:42:03] Speaker 00:
So if we're not talking about pre-decisional in terms of temporal sequence, if we're talking about whether the government pointed to the right decision,

[00:42:13] Speaker 00:
then I take your argument and I understand the district court's argument that the decision that was being pointed to was perceived to be an ultimate decision about whether to bring a charge.

[00:42:22] Speaker 00:
And the response to that is, well, that decision was never on the table.

[00:42:24] Speaker 00:
So that to the extent that that's the argument the government's making is just contradicted by the government's own acknowledgement at this point.

[00:42:31] Speaker 00:
So that one can't be it.

[00:42:33] Speaker 00:
So then the question becomes, well, what about this other purpose for having this assessment of whether the conduct constituted a crime?

[00:42:41] Speaker 00:
And the other purpose would be for purposes of determining whether to disclose to Congress.

[00:42:45] Speaker 00:
Now, as to that, the district court said that that could have been actually an appropriate occasion for assertion of the deliberate process privilege.

[00:42:54] Speaker 00:
The district court just didn't understand that to be an argument that the government was making.

[00:42:57] Speaker 00:
And my question about that is the memo to Congress

[00:43:02] Speaker 00:
says that it was informed by OLC's determination.

[00:43:09] Speaker 00:
So it's a matter of the public record, at least, that the memo that now is the subject of your FOIA request was in part going towards that purpose.

[00:43:19] Speaker 00:
And if that's the case, then does it matter that the declarations and the government submissions might not point to that?

[00:43:27] Speaker 02:
Yes, it matters because this is a FOIA case.

[00:43:30] Speaker 02:
And FOIA cases are unique in civil jurisprudence because the FOIA is a mandatory disclosure statute subject to narrow exceptions.

[00:43:41] Speaker 02:
And because of that, the government, even though it's the defendant, bears the burden of proof.

[00:43:48] Speaker 02:
And if it fails to meet that burden of proof, the presumption of disclosure prevails.

[00:43:53] Speaker 02:
So it was incumbent on the government, not the district court, as they argue, to provide its full arguments, to supplement them as necessary.

[00:44:04] Speaker 02:
The jurisprudence from this court teaches that.

[00:44:08] Speaker 02:
For example, in Von V. Rosen,

[00:44:11] Speaker 02:
the government tried to make a new argument on appeal to support its Exemption 5 claim.

[00:44:17] Speaker 02:
And this court said, you had ample opportunity in the district court.

[00:44:22] Speaker 02:
There was briefing on cross motions for summary judgment.

[00:44:26] Speaker 02:
The precise situation here, you failed to raise it, and you have waived the right to raise it now on appeal.

[00:44:33] Speaker 02:
The government here also had ample opportunities.

[00:44:36] Speaker 02:
There were multiple briefs filed on cross motions for summary judgment.

[00:44:40] Speaker 02:
The government submitted three separate declarations and at no time

[00:44:46] Speaker 02:
Either before or after the court ruled, did the government ask for an opportunity to supplement the record or better explain its arguments?

[00:44:55] Speaker 02:
It ignored completely rules 59 and 60, which were the obvious procedural vehicles for a party that believes that the district court just misunderstood their argument or overlooked something.

[00:45:09] Speaker 02:
So this is a case that, in the end, it was not decided as a sanction, as the government suggests.

[00:45:15] Speaker 02:
The order of disclosure flowed naturally from the fact that the government had failed to carry its burden of proof.

[00:45:24] Speaker 02:
And as important, the government talks about the importance of the deliberative process privilege.

[00:45:29] Speaker 02:
which of course the district court acknowledged and noted that her decision rested on the facts here and was in no way with any disregard to the importance of the privilege.

[00:45:42] Speaker 02:
But equally, if not more important, are the fundamental principles of FOIA.

[00:45:47] Speaker 00:
So let me ask this as a follow-up.

[00:45:50] Speaker 00:
If the declarations had said at some point the following, and I'm looking at JA 297, which is the unredacted portions of the memo,

[00:45:59] Speaker 00:
And section one is entitled, the department should reach a conclusion on whether prosecution is warranted based on the findings in volume two of the special counsel's report.

[00:46:09] Speaker 00:
If the declarations had said the memo was designed to assist with the determination of whether the department should reach a conclusion on whether prosecution is warranted, and the reason the memo was designed to do that is because it could result in public disclosure to Congress.

[00:46:29] Speaker 00:
Would that, at that point, even the district, I think the district court would have thought that the deliberative process privilege would apply.

[00:46:37] Speaker 00:
And I take it you wouldn't disagree with that proposition.

[00:46:39] Speaker 02:
I would not disagree.

[00:46:40] Speaker 02:
Although what the court, what the court actually said in her opinion at JA 250, which is footnote 11, the district court said the court recognizes that internal deliberations about public relations efforts

[00:46:58] Speaker 02:
could be covered by the deliberative process privilege.

[00:47:02] Speaker 02:
And I think it's very telling here that in its reply brief on appeal at page 11, the Justice Department expressly disavows that this was a public relations effort.

[00:47:16] Speaker 02:
So on the one hand, they're arguing that the district court failed to consider other reasons that might have supported its argument for privilege,

[00:47:26] Speaker 02:
And yet, at the same time, they're disavowing that this was at the bottom of page 11.

[00:47:31] Speaker 02:
Yes, correct.

[00:47:32] Speaker 00:
Although attorney general bars the civil process, cumulated in the issuance of public statement, the privilege advice that issue in this appeal, which the district court reviewed in camera is not about public relations.

[00:47:42] Speaker 00:
That's exactly.

[00:47:44] Speaker 02:
And I don't think you can reconcile that then with a claim that the court, whether it's framed as what to tell Congress or what to tell the public, it was in, as the district court viewed it, that was a matter of public relations.

[00:47:57] Speaker 02:
And that was the argument the district court identified that the government could have raised, but did not.

[00:48:04] Speaker 00:
So suppose that let's just disregard for arguments purposes, the sentence at page 11 of the reply brief and

[00:48:12] Speaker 00:
let's assume that a sentence along the lines of what I was hypothesizing was in the declarations, then at that point, you don't take issue with the proposition that the delivered process privilege would have been appropriately found to be.

[00:48:24] Speaker 02:
If the government had raised that argument, yes.

[00:48:26] Speaker 02:
But as the district court noted, it's not up to the court to tease out arguments for the government.

[00:48:33] Speaker 02:
The burden rests on the government to fully present its arguments.

[00:48:36] Speaker 02:
And it did not do that here.

[00:48:39] Speaker 02:
I do want to stress something that I think the government glosses over entirely, which is that the construction that Crew and the district court made of the government's arguments to be arguing that the attorney general was making a decision about whether to prosecute the president did not result from some careless slip of the tongue, so to speak.

[00:49:04] Speaker 02:
By my count, in the government's

[00:49:06] Speaker 02:
briefed and in their declarations filed below.

[00:49:09] Speaker 02:
The word prosecutor, some variation of it, was mentioned 74 times.

[00:49:15] Speaker 02:
In addition, the Justice Department repeatedly invoked the authority of the principles of federal prosecution as providing the analytical framework for its prosecutorial decision making.

[00:49:29] Speaker 02:
And the purpose section of that manual states expressly it's intended to guide the exercise of prosecutorial discretion with respect to commencing or declining prosecution.

[00:49:43] Speaker 02:
And as this court noted in its questions of the government, when we challenged the authority of the attorney general to prosecute the president, not only did the government double down, as the district court said, but it never even hinted that we had misunderstood its arguments.

[00:50:04] Speaker 02:
And in its summary judgment brief, it devoted nearly a full page to case sites standing for the proposition that when the department is deliberating over whether to prosecute, those deliberations are protected by the deliberative process privilege.

[00:50:20] Speaker 02:
So this was not an errant slip of the tongue.

[00:50:24] Speaker 02:
This was a repeated argument that the government made in the district court that misled both crew and

[00:50:33] Speaker 02:
and the court and the in-camera review, the government's position here, I'm not sure I quite understand it.

[00:50:40] Speaker 02:
We agree that having looked at the document in camera, that resolved the issue because what the court was facing was competing arguments, conflicting arguments about the nature and purpose of the memo.

[00:50:55] Speaker 02:
And it resolved that factual conflict by reviewing the memo.

[00:51:00] Speaker 02:
And what the court found from its in-camera review was that the memo did not say what the government said it said.

[00:51:09] Speaker 02:
Its purpose was not as identified by the government.

[00:51:12] Speaker 00:
Suppose that the memo, what's now unredacted, was what was disclosed at the outset.

[00:51:20] Speaker 02:
I think that would have made it a much harder case for us and an easier case for the government because I think it's clear from the district court's opinion that what troubled the court is that the government deliberately redacted any reference in the memo to its policy about prosecuting a president.

[00:51:40] Speaker 02:
And it's really inexplicable because here they have argued that that was such a central fact

[00:51:46] Speaker 02:
that was widely and publicly known, that it was just sort of baked in.

[00:51:51] Speaker 02:
If that's the case, why did they redact all references to that policy?

[00:51:57] Speaker 02:
Why did two declarants from the Justice Department assert under penalty of perjury that that was privileged deliberative material that couldn't be disclosed?

[00:52:09] Speaker 02:
And why did the Attorney General tell Congress in his March 24th letter

[00:52:14] Speaker 02:
that he made his decision that the evidence was not sufficient to prosecute the president without any regard for constitutional barriers, that it was a standalone decision.

[00:52:25] Speaker 02:
So I just don't think any of that can be reconciled with the government's position on appeal.

[00:52:35] Speaker 01:
Ms.

[00:52:35] Speaker 01:
Weisman, let me ask you how this case would come out in your mind if there were one slight different bet.

[00:52:44] Speaker 01:
Suppose the draft letter to Congress had not been prepared Friday, but wasn't prepared until Sunday after this opinion, after this memorandum was prepared and went through all the drafting.

[00:53:02] Speaker 01:
Would it come out differently?

[00:53:05] Speaker 02:
So your question is, if the memo was not prepared until Sunday?

[00:53:08] Speaker 01:
No, if the letter to Congress hadn't been prepared until Sunday.

[00:53:12] Speaker 01:
In other words, we know that they prepared a draft of the letter to Congress Friday night, right?

[00:53:17] Speaker 01:
Right.

[00:53:18] Speaker 01:
Suppose they hadn't done that.

[00:53:20] Speaker 01:
Suppose they had worked all weekend on the memo and then Sunday afternoon, after the attorney general saw the memo, they wrote the letter to Congress.

[00:53:30] Speaker 02:
I'm not sure it would necessarily change the equation, but it would be very different.

[00:53:34] Speaker 02:
I mean, that's obviously not what happened here.

[00:53:36] Speaker 02:
Yeah, I know.

[00:53:37] Speaker 02:
That's why I said.

[00:53:37] Speaker 02:
Right.

[00:53:38] Speaker 02:
I mean, I think, again, the question becomes, what role did the memo play in the decisional process?

[00:53:47] Speaker 02:
And as long as they're continued, when the memo was created, if it was created while there was an ongoing decisional process,

[00:53:58] Speaker 02:
then I think there's a strong argument that it's protected.

[00:54:02] Speaker 01:
Well, what would the government have had to show in this case to make that art?

[00:54:05] Speaker 01:
What would have satisfied you?

[00:54:07] Speaker 01:
Let's go back to the real facts.

[00:54:10] Speaker 01:
The letter to Congress was drafted on Friday.

[00:54:12] Speaker 01:
The memo comes up on Monday on Saturday.

[00:54:15] Speaker 01:
Just stick with the facts we've got.

[00:54:17] Speaker 01:
What what would the government have had to show here?

[00:54:20] Speaker 01:
As you point out, it has the burden to prove.

[00:54:22] Speaker 01:
Well, what would it have had to show to convince you that this was, in fact, deliberate?

[00:54:29] Speaker 02:
It would have had to show that at the time the memo was finalized, there was still an ongoing deliberation, which is not the fact here.

[00:54:39] Speaker 02:
Now, the government has responded that the Attorney General could have changed his mind, but that's very unrealistic.

[00:54:47] Speaker 02:
The Attorney General had publicly committed to Congress and the letter had become public.

[00:54:52] Speaker 02:
that he and the Deputy Attorney General, essentially acting on behalf of the department, had made this determination.

[00:55:00] Speaker 02:
I think there's no realistic expectation that he was going to change his mind.

[00:55:05] Speaker 02:
So again, I think what you have to look at is what role does a document play in a decision-making process?

[00:55:14] Speaker 02:
Because the whole point of the deliberative process privilege is to protect the integrity of the decision.

[00:55:20] Speaker 01:
I suppose it was evidence that when the attorney general got the draft of this memorandum for the first time, he convened a meeting of all his people, and they had a huge debate about whether this memo was, in fact, accurate.

[00:55:41] Speaker 01:
That is, whether the conclusion that there was insufficient evidence to charge the president, that was a debatable question at that point.

[00:55:49] Speaker 01:
Would that have been enough?

[00:55:53] Speaker 02:
I'm sorry, I couldn't hear all of it.

[00:55:55] Speaker 02:
If the conclusion was that there was insufficient evidence.

[00:55:59] Speaker 01:
No, if there was evidence that there had actually been a healthy debate around the Attorney General about whether there was or was not sufficient evidence.

[00:56:10] Speaker 02:
Well, that would be evidence that suggests that the document did in fact play a role in an active ongoing deliberative process.

[00:56:20] Speaker 01:
So that would be enough.

[00:56:21] Speaker 02:
That's one thing that would appear to be enough.

[00:56:23] Speaker 01:
Yes, because again, and so if so, if so, if the declaration had added a sentence.

[00:56:30] Speaker 01:
Which said the attorney general and I don't have the language in front of it says the declaration says that the attorney general saw reviewed a draft of this memorandum before Sunday.

[00:56:42] Speaker 01:
And then it had added another sentence which said and convened a meeting at which.

[00:56:48] Speaker 01:
there was a healthy debate about whether or not there was sufficient evidence to indict the president, then that would be enough for you, right?

[00:56:58] Speaker 01:
That's all it needs?

[00:56:59] Speaker 02:
No, because it wouldn't.

[00:57:01] Speaker 02:
You still have to look to the final memo itself.

[00:57:05] Speaker 02:
That would support the notion that earlier drafts of the memo were pre-decisional and should be protected by the deliberative process privilege.

[00:57:13] Speaker 02:
But if it's the case,

[00:57:14] Speaker 02:
That based on everything the attorney general received and that appears to be the case here.

[00:57:20] Speaker 02:
He made a decision.

[00:57:22] Speaker 02:
He considered that advice.

[00:57:23] Speaker 02:
He made a decision.

[00:57:25] Speaker 02:
He conveyed that decision to Congress and then he memorialized that that decision was more moralized in a memo.

[00:57:32] Speaker 02:
then earlier drafts might be protected, but it doesn't change the fact that at the end of the day, if the memo is just memorializing a position that the agency settled on, which is the language from Fish and Wildlife in the Supreme Court, then it is not pre-decisional.

[00:57:51] Speaker 00:
I want to follow up on a question Judge Tatel asked, but only if Judge Tatel's not going to follow up.

[00:57:55] Speaker 01:
No, I'm not.

[00:57:56] Speaker 01:
You should.

[00:57:57] Speaker 00:
OK.

[00:57:59] Speaker 00:
Then as I understood the question that he asked you,

[00:58:02] Speaker 00:
He said, what if the letter to Congress had post dated the approval of the memorandum so that it would have happened on Sunday?

[00:58:10] Speaker 00:
And you thought that would have been a different case.

[00:58:12] Speaker 00:
Um, you acknowledge that that might be, that would be a different case.

[00:58:15] Speaker 00:
I think.

[00:58:15] Speaker 00:
And my question is, is that not this case?

[00:58:18] Speaker 00:
Because on page 208 and the second Colburn declaration, the top of the page, it says, I recently been informed that prior to making his decision and sending the letter,

[00:58:29] Speaker 00:
the attorney general had received a substance of the advice contain a document number 15.

[00:58:33] Speaker 00:
So the advice part of the declaration did predate the sending of a letter that the fact that the advice might not have been memorialized until afterwards doesn't necessarily change anything.

[00:58:46] Speaker 00:
What matters is that the advice actually was given beforehand.

[00:58:50] Speaker 02:
No, I was, I respectfully disagree.

[00:58:52] Speaker 02:
Again, I think the fact that there might be earlier written version containing this advice,

[00:58:59] Speaker 02:
means that up until the point a decision was made, they would qualify as pre-decisional and may be protected by the privilege.

[00:59:08] Speaker 02:
But once the Attorney General made a decision, once he acted on that advice, then a memo that memorializes his decision, which is what we think happened.

[00:59:19] Speaker 00:
I mean, I think when you say the memo memorializes the decision, it depends on what you mean.

[00:59:23] Speaker 00:
If it memorializes the deliberations, and if it memorializes the recommendation, the fact that the memo isn't finalized until afterwards can't matter.

[00:59:31] Speaker 00:
I mean, what if the final memo just corrects a typo?

[00:59:34] Speaker 00:
And one of the drafts that you say would have been protected by the deliver process privilege and that came beforehand contained the typo.

[00:59:40] Speaker 00:
I don't think anybody would say that because a new memo was issued that corrected the typo after the decision was announced,

[00:59:46] Speaker 00:
That then is not protected by the process.

[00:59:48] Speaker 02:
Of course, we have no indication that that happened here.

[00:59:51] Speaker 02:
But again, I think you have to look at the role that a document plays in the decision making process.

[00:59:57] Speaker 02:
And if the attorney general, as all the evidence suggests, had settled on a position and that his decision was based on advice he had received,

[01:00:10] Speaker 02:
And then he basically adopts that as his final decision.

[01:00:14] Speaker 02:
A memo containing that adoption is not pre-decisional and not entitled to protection.

[01:00:22] Speaker 02:
And I just want to point out here, I mean, this is a situation where the special counsel did an investigation and made public a, in volume two, a nearly 200 page summary of the evidence that he had found.

[01:00:39] Speaker 02:
and his analysis of that evidence.

[01:00:41] Speaker 02:
The Department of Justice disagreed in some material ways with the special counsel's finding and memorialized its own view

[01:00:51] Speaker 02:
and its own analysis in a memo.

[01:00:53] Speaker 02:
And the idea that that should be protected as deliberative, I think is contrary to exemption five and its underlying purposes.

[01:01:02] Speaker 02:
And it's contrary to the whole point of the privilege, again, which is to protect this process.

[01:01:08] Speaker 00:
Let me just make sure my colleagues don't have additional questions for you, Ms.

[01:01:12] Speaker 00:
Lassner.

[01:01:12] Speaker 03:
Yes, I have one question.

[01:01:14] Speaker 03:
I was intrigued by some of the arguments presented by Amicus.

[01:01:19] Speaker 03:
And I wondered to what extent your argument embraces the notion that, very much as the Chief Justice's first question, the Council for the Government inquired, would this process be available under Exemption 5, where

[01:01:47] Speaker 03:
The only matter under consideration is a hypothetical.

[01:01:52] Speaker 03:
That there is no decision as such on the table applying the principles of prosecutorial decision making.

[01:02:03] Speaker 03:
Because that's already been decided.

[01:02:07] Speaker 03:
So that's why

[01:02:09] Speaker 03:
defining decisions so broadly as to encompass this type of hypothetical investigation, I don't know, bleeds into your argument about what is the whole purpose of the requirement that exemptions under FOIA be narrowly construed.

[01:02:33] Speaker 02:
Yes, I agree completely, Your Honor, because when you strip away as you must, the argument that

[01:02:39] Speaker 02:
The government made in the district court that this was intended to help the help the attorney general make a decision on prosecuting the president.

[01:02:47] Speaker 02:
You are left with this abstract hypothetical, you know, decision making on hypothetical questions with no real practical purpose.

[01:02:58] Speaker 02:
completely untethered from any agency action or even any potential agency action.

[01:03:05] Speaker 02:
And yes, the deliberative process privilege does not stretch that far.

[01:03:10] Speaker 02:
And again, as you point out in your question, it goes back to the purposes of the privilege.

[01:03:15] Speaker 03:
Let me just follow up, if I may, Judge Tatel.

[01:03:18] Speaker 03:
So I understand a lot of the discussion here this morning, including the court's questions.

[01:03:26] Speaker 03:
which I understand does not necessarily reflect its views, the suggestion is that even if here the government's declarations and other evidence presented to the district court did not make clear the nature of the decision actually being made, nevertheless, there was a decision to be made on the table, not whether to

[01:03:56] Speaker 03:
actually filed charges against the president for obstruction of justice.

[01:04:03] Speaker 03:
But rather, given as the attorney general said, the special prosecutor did not evaluate the sufficiency of the evidence that its investigation had uncovered regarding obstruction of justice.

[01:04:21] Speaker 03:
And therefore, it remained for the attorney general

[01:04:25] Speaker 03:
to address that.

[01:04:29] Speaker 02:
And that is as I understand the heart of the government's argument.

[01:04:34] Speaker 02:
The problem with that is it completely misses the question of why did that process have to be taken?

[01:04:43] Speaker 02:
There was no decision at the end of it.

[01:04:46] Speaker 02:
Again, it's reduced to a hypothetical because why was it necessary for the attorney general to make a decision about the sufficiency of the evidence if it was a given at the outset

[01:05:00] Speaker 02:
that the president could not be prosecuted because of constitutional considerations.

[01:05:05] Speaker 03:
So the court's questions have suggested, well, the declarations could have been more revealing.

[01:05:13] Speaker 03:
But I just want to be clear on your position.

[01:05:16] Speaker 03:
And maybe it's that we don't have to decide this question in this case.

[01:05:22] Speaker 03:
But you're going so far, or crew is going so far as to say,

[01:05:30] Speaker 03:
a decision as to what the Attorney General should say to Congress regarding the Inspector General's report is not the nature of a decision falling within the exemption under FOIA.

[01:05:50] Speaker 02:
No, that is not our position.

[01:05:51] Speaker 02:
And I'm sorry if I have suggested that.

[01:05:53] Speaker 02:
No, I'm just trying to be clear about my question.

[01:05:56] Speaker 02:
It is not our position.

[01:05:58] Speaker 02:
Our position is that, as the district court recognized, that could have been a potential argument the government could have raised, and it made the decision not to, and instead raised another argument that proved to be demonstrably false.

[01:06:11] Speaker 02:
So yes, had the government presented a full range of arguments

[01:06:16] Speaker 02:
You know, we might be in a different situation, but here, as I started out saying, we believe the government made a deliberate choice to defend this the way it defended it.

[01:06:27] Speaker 02:
And the facts didn't bear it out.

[01:06:29] Speaker 02:
It didn't meet its burden of proof.

[01:06:31] Speaker 02:
And therefore disclosure was the appropriate remedy.

[01:06:36] Speaker 02:
Thank you.

[01:06:38] Speaker 00:
Thank you, Ms.

[01:06:38] Speaker 00:
Weisman.

[01:06:41] Speaker 00:
Ms.

[01:06:41] Speaker 00:
Harrington will give you three minutes for rebuttal.

[01:06:48] Speaker 05:
Thank you, Chief Judge Srinivasan.

[01:06:50] Speaker 05:
I'd like to start, if I could, by sort of focusing the court on what I think is the central question in this case, which is what should happen in a FOIA case when a district court finds that the government's submissions are inadequate.

[01:07:00] Speaker 05:
And I think it's important to keep in mind how FOIA cases work.

[01:07:03] Speaker 05:
They're unlike other cases in that the government actually has the information that believes that it is entitled to keep it secret.

[01:07:10] Speaker 05:
And so the government has to submit declarations and send me judgment arguments

[01:07:14] Speaker 05:
that kind of talk around what the document is about.

[01:07:17] Speaker 05:
That's just baked into how FOIA works, because it wouldn't make any sense to require the government to come in and say what's in the privileged material, because we're trying to keep it secret.

[01:07:25] Speaker 05:
And so it happens not infrequently that the government's declarations and summary judgment briefs don't quite get the job done, that this court or the DDC finds that there isn't sufficient information to make a judgment about whether a document is entitled

[01:07:38] Speaker 05:
to be withheld under Exemption 5 or some other exemption.

[01:07:41] Speaker 05:
And so the remedy for that is either in camera review or asking the government to submit supplemental declarations or supplemental briefs.

[01:07:50] Speaker 05:
There are lots of examples of this court basically remanding a case to a district court.

[01:07:56] Speaker 05:
after finding that the government submissions gave no indication of what the decisional process was, or suggested that it was something maybe that it wasn't, or gave very- Let me be clear about your argument.

[01:08:06] Speaker 03:
You are stating, as I understand it, that the district court has a sua sponte obligation if it is tending to

[01:08:26] Speaker 03:
pending toward a decision that the agency's declarations are insufficient to request those declarations be supplemented by the agency.

[01:08:43] Speaker 03:
No request has to be made, but it's...

[01:08:49] Speaker 03:
finish my sentence so you understand what I'm concerned about.

[01:08:53] Speaker 03:
Because the way I heard your argument, and maybe I misunderstood it, was that even after the district court has conducted in-camera review and is satisfied that the government has, in its declarations to the district court, misrepresented what is the actual decision on the table

[01:09:21] Speaker 03:
then the district court still has an obligation, sua sponte, to request supplemental declarations.

[01:09:33] Speaker 03:
And that that process must be exhausted under FOIA before the district court can order the documents at issue be released to the public.

[01:09:46] Speaker 05:
That's not our argument, Judge Rogers, and thank you for the opportunity to clarify.

[01:09:49] Speaker 05:
Our view is that once the district court has conducted in-camera review, the district court can rule on whether the document is entitled to be withheld under one of the FOIA exemptions based on the document itself.

[01:10:00] Speaker 05:
The district court also has the option of ordering supplemental declarations and pleadings, and this court has indicated there's some virtue in that in some cases because it allows the adversary process to play out, gives the plaintiff a chance

[01:10:11] Speaker 05:
to sort of argue against the government's clarified arguments about why a document should be withheld.

[01:10:17] Speaker 05:
But once the district court, this is sort of our fundamental submission here.

[01:10:20] Speaker 05:
Once the district court reviews the documents in camera, the document is part of the summary judgment record.

[01:10:25] Speaker 05:
And if the document is self-evidently privileged, as we believe that part two of this memo is, then the district court, it's not available to the court to grant summary judgment to the plaintiff just because the district court thought that the submissions were inadequate.

[01:10:37] Speaker 00:
It has to be self-evidently privileged

[01:10:40] Speaker 00:
in a way that's commensurate with arguments that the government's making, either in its declarations or in its papers.

[01:10:47] Speaker 00:
And just to put ourselves in the shoes of the district court, what the district court saw was a memorandum from the government that said the following, and I'm looking at Jane 193 to 194, and this is the reply memorandum.

[01:10:58] Speaker 00:
On 193, the government says, moreover, as a memorandum containing analysis about whether evidence supports initiating or declining a prosecution,

[01:11:10] Speaker 00:
Document number 15 fits neatly within a broader category of documents that are generally protected by the Deloitte process privilege.

[01:11:16] Speaker 00:
And then the next, the next sentence.

[01:11:19] Speaker 00:
Kindness arguments and response rests only on its misinterpretation of the DOJ special counsel regulations and its own irrelevant speculation, unsupported by admissible evidence, that the attorney general was not engaged in a legitimate decision on whether to initiate or decline prosecution of the president for obstruction of justice.

[01:11:33] Speaker 00:
down at the bottom of the page.

[01:11:35] Speaker 00:
For all of these reasons, plaintiff's supposition, the document number 15, was not part of a deliberation about whether or not to prosecute the president and not overcome the deference to the agency's affidavits.

[01:11:46] Speaker 00:
So that's the picture that's been painted for the district court.

[01:11:48] Speaker 00:
So the district court is looking later in camera at the memorandum

[01:11:53] Speaker 00:
with the mindset that this is the position the government's put putting forward.

[01:11:58] Speaker 00:
And so the fact that the memorandum when reviewed in camera might support a different rationale that the government hasn't put forward.

[01:12:05] Speaker 00:
I don't think there's any law that suggests that the district court then has to look at the memorandum treated as itself evidence that supports a rationale that the government hasn't put forward to that point.

[01:12:18] Speaker 00:
Now you may think

[01:12:19] Speaker 00:
Either the government did put forward that rationale or that it was so self-evident that the government must have been putting forward that rationale that the district court should have seized on that part of the memo.

[01:12:28] Speaker 00:
But that's the context in which the district court conducted its in-camera review.

[01:12:32] Speaker 05:
Chief Judge Srinivasan, you have read the most damaging parts of our own pleadings to us, but those aren't the only things we said.

[01:12:38] Speaker 05:
We wish the district court had viewed them in context.

[01:12:42] Speaker 05:
of all the other places where we said specifically that the decision that's teed up in this memo is about the sufficiency of the evidence in part two of the special counsel's report and whether that would show an obstruction of justice offense.

[01:12:53] Speaker 05:
Again, we thought it was perfectly clear sort of in the world and against the backdrop of this litigation that there wasn't.

[01:12:59] Speaker 00:
But I don't think anybody disagrees that that's what the memo was designed to do and was always advertised as being designed to do.

[01:13:05] Speaker 00:
But I think we've already established that if that was only an academic exercise, that wouldn't be enough.

[01:13:10] Speaker 00:
So it had to be going towards something.

[01:13:11] Speaker 00:
And the one obvious thing that usually that assessment goes towards is off the table.

[01:13:17] Speaker 00:
But the government's submissions led to the natural impression that that was actually on the table, or else a court or anybody else reading it might think, well, then why else would someone have been engaging in that assessment?

[01:13:32] Speaker 00:
And if you look at the memo, you see why.

[01:13:36] Speaker 00:
But the government hadn't said that.

[01:13:38] Speaker 05:
I disagree with your assessment that it suggests that there was an actual prosecuting decision being considered because I just think it was perfectly clear that that was not available.

[01:13:46] Speaker 05:
And we would never have tried to convince anyone, let alone an Article 3 judge, that Attorney General Bill Barr was actually contemplating bringing criminal charges against then President Donald Trump.

[01:13:57] Speaker 05:
No one would have believed it because it was well known that we couldn't do that.

[01:14:01] Speaker 05:
But also, it wouldn't help us establish that this is a privileged document because the privileged nature of the document does not depend on whether there was an actual prosecution being contemplated.

[01:14:09] Speaker 00:
But then the question becomes, if that's off the table, and I will say again, and I know you're not really fighting this, that the government submissions made it look like it might not be off the table.

[01:14:18] Speaker 00:
But even if you put that to one side, then the natural question that arises, OK, then why is that assessment being undertaken?

[01:14:24] Speaker 00:
And as to that, now we know.

[01:14:26] Speaker 00:
because section one of the memo tells us.

[01:14:29] Speaker 00:
But at the time that the district court rendered its decision, that wasn't out there.

[01:14:33] Speaker 00:
That's something that the government was supporting.

[01:14:34] Speaker 05:
But it was known at that point that the attorney general had made public statements about this sufficiency determination.

[01:14:39] Speaker 05:
And so I think it was natural to understand that that's part of the reason that the decision was made.

[01:14:44] Speaker 05:
And that's what prompted, in fact, the FOIA request.

[01:14:47] Speaker 05:
Again, we think we have decided not to appeal withholding of part one.

[01:14:51] Speaker 05:
Part one actually doesn't talk about making public statements.

[01:14:54] Speaker 05:
It says it gives advice about why this decision should be made and said, you know, if part two of the Mueller report were to become public, we might want to sort of remove the cloud that could be hanging the cloud of acquisition that could be hanging over then President Trump.

[01:15:07] Speaker 05:
And so that is public now.

[01:15:09] Speaker 05:
The only, just to respond to the, there was some discussion about what we said on page 11 of our reply brief.

[01:15:15] Speaker 05:
That's specifically referring to the part of the memo that said issue in this appeal, which is part two of the memo, which is not about public relations.

[01:15:21] Speaker 05:
It's only about the sufficiency analysis.

[01:15:29] Speaker 01:
Feel free to tell me if you think I'm oversimplifying things here.

[01:15:32] Speaker 01:
Feel free to tell me if I am oversimplifying things here.

[01:15:39] Speaker 01:
We are looking at this case from a different perspective than the district court.

[01:15:43] Speaker 01:
It didn't evolve in stages here.

[01:15:46] Speaker 01:
We've read the memo, right?

[01:15:48] Speaker 01:
We've read the memo.

[01:15:50] Speaker 01:
You've told me that the best evidence that this memo is deliberative is the memo itself.

[01:15:57] Speaker 01:
So, and this is hypothetical, if I look at the memo, the timing of the memo in relation to the letter to Congress and who was involved in it and agree and think the district court was right that it's not pre-decisional, is that the end of the matter or are you saying we have to give the government another chance to convince us, in the words of Sierra Club, that the memo

[01:16:27] Speaker 01:
helped the attorney general formulate his position.

[01:16:30] Speaker 05:
Judge Shadow, I don't think there's a definite answer to that.

[01:16:33] Speaker 05:
We would appreciate another chance.

[01:16:35] Speaker 05:
But I think if you look at the evidence that's in the record and determine that it's not pre-decisional, and I'll just clarify, the district court didn't actually hold that it wasn't pre-decisional.

[01:16:42] Speaker 05:
She expressed doubts about that, but didn't make a holding on that.

[01:16:45] Speaker 05:
If you come to the conclusion that it's not pre-decisional based on what's in the record, I think you could rule on that.

[01:16:52] Speaker 05:
What this court more often does is remands to the district court to give the government another opportunity.

[01:16:57] Speaker 05:
And I think the reason... What would we remand for in this case?

[01:17:00] Speaker 05:
For the government to maybe submit a supplemental declaration giving greater context for how the decision was made.

[01:17:14] Speaker 01:
Why would we do that since the government already made its case that this was?

[01:17:21] Speaker 05:
That's why I started where I did in the rebuttal, because I just want to point to the court to how FOIA cases ordinarily work.

[01:17:26] Speaker 05:
And the fact that the government doesn't get it right in its first try of talking around a privilege document.

[01:17:31] Speaker 01:
I heard that point, yeah.

[01:17:32] Speaker 05:
It doesn't mean that it shouldn't.

[01:17:33] Speaker 01:
You're right.

[01:17:33] Speaker 01:
We do that quite frequently.

[01:17:35] Speaker 01:
But since you've told me that the best evidence that this is deliberative is the document itself, what is there?

[01:17:44] Speaker 05:
I mean, I think the document does show that it's pre decisional because it's again it's written as advice from a subordinate to superiors it gives the decision maker, the opportunity to accept or reject the advice.

[01:17:55] Speaker 05:
The cold one decorations describe that the substance of the memo was delivered to the attorney general before he made his decision.

[01:18:01] Speaker 05:
This court in Mead Data Central, which is an old FOIA case, said it would exalt form over substance to say that advice given to a decision maker is pre-decisional if it's written down beforehand, but not if it's recorded afterwards.

[01:18:12] Speaker 05:
And we think that absolutely applies here.

[01:18:16] Speaker 00:
Unless there are any further questions.

[01:18:19] Speaker 00:
Thank you, counsel.

[01:18:20] Speaker 00:
Thank you to both counsel.

[01:18:21] Speaker 00:
We'll take this case under submission.