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Case number 21-5254, Donald J. Trump in his capacity as the 45th president of the United States, a balance, versus Benny G. Thompson in his official capacity as chairman of the United States House Elect Committee to investigate the January 6th attack on the United States Capitol et al.

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Mr. Binal for the Donald Trump jurisdiction.

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Mr. Clark for the Donald Trump merits.

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Mr. Lutter for the Epoley Benny Thompson.

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Mr. Boynton for the Epoley National Archives and Records Administration.

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You may appreciate Mr Bina and welcome everybody.

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Good morning and may it please the court.

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Jesse been on behalf of President Trump.

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I'll be handling the jurisdictional issues this morning.

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Mr Clark will be handling the other issues in assessing the subject matter jurisdiction.

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This court has asked us to be prepared to answer two questions today.

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The first is whether this court and

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not withstanding the limitations of the Presidential Records Act.

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And the second is whether the court's jurisdiction over the remedies sought by the appellant remains in light of those jurisdictional limitations.

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The answer to both questions is yes.

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Congress adopted the Presidential Records Act to provide for government ownership of presidential records.

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In doing so, there were several concerns that they took into consideration.

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The first, one of those was executive privilege and the necessity for a former president to maintain the confidences of the records created during his term of office.

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And the second was the need of the archivist to be able to do the archivist job without opening the floodgates of FOIA litigation during the initial period of processing presidential records.

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In fact, the system created a

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the presidential records act created a buffer period starting at the conclusion of a president's term and extending for a period not to exceed.

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Can I just interrupt to try to get to the bottom line here?

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The bottom line is that you agree that that statutory language is language that limits subject matter jurisdiction.

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Judge Wilkins,

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The language in the statute only limits the subject matter jurisdiction of third persons.

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It does not limit the subject matter jurisdiction for a former president to be able to bring a bring an action on behalf of a

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the maintaining the confidentiality of the president's records.

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And that was very specific.

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And in fact, if you look at the legislative history for the adoption.

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Mr. Bonnell, before you get to the legislative history, can you just be clear about what language you're referring to in the statute?

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Yes, Judge Jackson, we're talking about the language in 22, 2204 B.

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And in that language, it takes and specifically limits the ability of third parties to challenge a decision of the archivist as to the designation of presidential records.

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And then after that designation, if there is a disagreement between third parties, members of the public who would otherwise be able to bring a FOIA claim, then they are limited to an administrative appeal.

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And that administrative appeal is then specifically provided for by regulations adopted by the National Archives.

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So are you talking about Section 2204B3?

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Because I don't see anything about third parties in that section, so I'm trying to understand where that's coming from.

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Yes, Your Honor, if you look at 2204 B3, what it talks about is limiting that the jurisdiction to challenge the designation of the archivist regarding a former president's records.

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And what that, and then immediately following that limitation of, that limitation in 2204B3, it then proceeds to talk about the administrative appeal process.

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And- But the statute says that the, at the first part of that sentence after the, during the period of restricted access,

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It says the determination whether access to a presidential record shall be restricted, shall be made by the archivist.

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So hasn't the archivist here made a determination that certain presidential records will not be restricted?

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Your honor, the designation regarding records here is not really under 2204-722-05.

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And that is the special requests of Congress that are at play here.

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But regardless, your honor, Congress specifically did not limit the abilities of former presidents

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to be able to challenge any decision regarding the confidentiality of their records.

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Well, Mr. Bernal, you say Congress didn't limit it.

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Ordinarily, when we're looking to determine whether someone has the authority to bring a lawsuit, we're actually trying to find in the statute language that gives the person that authority.

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The background rule is that Congress has to provide a cause of action for

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former presidents or anyone else to proceed.

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So where's the cause of action in this statute for the former president to be able to bring a claim protecting the confidentiality of records writ large?

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Where is that?

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Your Honor, so there's the the overall authority given by Congress, but to this court on an appeal of an injunction and over the federal question jurisdiction and as this court recognized in the natural coalition to save our mall case.

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there is a presumption of the ability to review those questions.

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That is especially important because there is not only a statutory issue here, but there's also the constitutional issue here.

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And that presumption then can only be rebutted by a clear and convincing evidence that Congress intended to

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divest the courts of specific authority and there is that no such.

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Are you arguing for that there's an implied cause of action somehow in this statute for the president to make this sort of claim I thought you were looking at section E or something at one point in your brief.

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Section E is not exclusive, and that's clear from Congress.

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Matter of fact, Congressman Pryor on the floor of the House of Representatives made it very clear when the Presidential Records Act was adopted that this was not an exclusive limit on a former president's ability to bring jurisdiction.

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In fact, he said that that subsection, speaking of 2204E, was not intended to increase, decrease,

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or otherwise modify the rights or privileges of a former president to bring an action.

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Congressman Pryor also specifically recognized that a former president may need to bring suit to challenge under another jurisdictional basis, such as a constitutional or other right.

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Can I just clarify?

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I'm sorry to interrupt you.

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Go ahead.

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Because there's two things here.

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I want to make sure we're clear.

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We had sent a letter asking you all to be ready to talk about jurisdiction.

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The existence of a cause of action is not jurisdictional and hasn't been raised by the other parties.

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So that's not even something we have to decide in this case.

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Am I correct?

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on that?

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That's correct, Your Honor.

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I'm specifically talking about the jurisdiction we report half to the side.

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I just want to distinguish between the jurisdiction and cause of action arguments, because it sounds like they're getting kind of woven together here.

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Your Honor, we're not woven those together at all.

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Instead, what we're doing is pointing out that specifically when Congress was deciding this act and specifying any limits of judicial review,

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Any limits to judicial review here are very narrow.

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It's only applying to third parties who, primarily for FOIA purposes, may wish to limit the or may want to challenge the decision of the archivist.

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So let's suppose, let's suppose I read

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I mean, your complaint cited 2204E, as Judge Jackson pointed out, as a basis for our jurisdiction.

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Your complaint cited that explicitly.

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Let's suppose we read that as saying that the only lawsuit that Congress gave the district court subject matter jurisdiction to hear

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is one made by a former president that his or her rights for privileges have been violated.

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Let's suppose that's how we read that statute.

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Doesn't some of your complaint go beyond making that argument?

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Your honor, our complaint is based not only on 2204E.

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Matter of fact, our complaint- Don't resist the hypothetical, though.

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Let's suppose the hypothetical is, suppose we believe that's the only basis for subject matter jurisdiction, and that's the only thing that the court has jurisdiction to hear.

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What then?

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Your honor, since 2204 E does specifically give rise to a former president being able to challenge the designation of his records, the court would still have subject matter jurisdiction.

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But in this case,

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subject matter jurisdiction goes beyond that, especially being that there is a constitutional privilege at stake and other constitutional concerns regarding separation of powers, and specifically since it arises out of 2255 and the regulations enabling 2255, specifically 1270.44, and the executive order 13489.

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Subsection four of that.

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All of those, in fact, all three branches of government have acknowledged that there's a right of former presidents to be able to challenge the designation and release of presidential records.

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Congress did it through the adoption of the statute.

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The executive branch did it through the promulgation of- I want to try one last time in the interest of time.

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But my question is, you say that there are other basis for jurisdiction.

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I take your point.

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But my question is, hypothetically speaking, if we were to conclude that the only basis of jurisdiction is 2204E, in that the only action that we have jurisdiction here is one

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that an action of the archivist violates the former president's rights or privileges.

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So if we're working within that framework, does any part of your reclaim for relief fall outside of that framework?

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Your Honor, no.

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read it as it should be, even if that was the only grant of subject matter jurisdiction, we would still be able to get the relief that we seek, specifically the injunction that we seek, and most importantly, the injunction that we seek against the archivist from producing the records at issue.

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Can I just be clear, because that's really important.

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looked up your P.I., which was not, or P.I.

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motion, which was not in the in the J.A., because I was trying to ascertain what relief are you actually seeking?

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Are you just trying to prevent the archivist from releasing the records that the former president has designated as privileged?

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Or are you saying

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that because of all of the other reasons that you put forward that this is illegitimate, this is partisan or whatnot, the request is overbroad, are you saying that we should enjoin the archivist from producing anything at all in response to Congress in this request?

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Your Honor, we're requesting that the archivist be enjoined from producing records designated as privileged.

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and or otherwise restricted under the Presidential Records Act.

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That is what we are requesting.

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Matter of fact, we have not objected to a number of documents being produced to the committee.

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It's only the subset that we have designated as being restricted or privileged.

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I see.

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So all the talk in your briefs about overbroad legislative

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action, the request is too much, that there's no purpose to it.

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All of that really isn't not the point.

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We're focused on the designation of executive privilege.

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Well, that's right, Your Honor, but that falls within a privilege and restricted.

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But that was made by restricted.

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Restricted is the language that the presidential record act uses in regards to the documents issue here, confidential communication so there's the statutory issue regarding the presidential records act, and then there's the constitutional issues regarding regarding privilege that are that largely over overlap.

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So to answer your question, Judge Jackson, most importantly, that all those issues that you brought up go into determining whether or not these particular records are privileged and whether they should be disclosed.

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Well, that might well be so, but that's actually not how you briefed it.

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So I was very confused.

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You seem to be making separate arguments about whether privilege applies and whether or not the legislature has the authority to proceed because it's overbroad or whatnot.

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You do have many places where you say, suggest at least, that even if this president cannot express privilege or whatnot, the court should still

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enjoying the archivist because the legislature is has acted inappropriately in this case.

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So I hear you taking that whole second set of claims off the table in the context of this argument.

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I'm not taking those claims off the table at all.

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Instead, what I'm trying to make clear is that those interests apply both to the statutory analysis under the Presidential Records Act, they apply to the separation of powers concerns under Mazars and other cases, and certainly executive privilege that we get through Nixon versus GSA.

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Just to be clear, when you say

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And no one's here to try to make you take anything off the table.

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Tell me if I'm wrong, just to make sure I understand your argument.

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Your argument is you have developed arguments about overbreath, overreach by Congress, lack of a legitimate legislative purpose for these requests.

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And you say all of those are part and parcel of your arguments that these documents that have been designated

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by former President Trump for withholding from disclosure to the committee.

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As to those documents, an analysis, the analysis about the legislative interests that you have spelled out is part of determining whether those documents should be withheld under either the constitutional executive privilege or the 2204A presidential communications.

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That's my understanding.

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That's my understanding.

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Correct.

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There's not a free standing objection.

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It's all funneled through as part and parcel of the analysis we need to undertake.

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That's right.

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It's the the the overbreath concern.

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The of all that the concerns that we raise go to each three of the basis is that we're asking that these records be withheld through an injunction.

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The statutory basis under the Presidential Records Act and its enforcing regulations, the separation of powers concerns that we have raised and the executive privilege matters that we concern.

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As for the statutory claims, my understanding is you're focused on the, I think you said this a minute ago, the confidential communications privilege under reference under 2204A5, correct?

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Correct.

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And that is there any daylight in your view between what 22 for a five protects and the executive privilege, the constitutional executive privilege.

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Your honor, that's something that is that we've thought a lot about and we've looked at.

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I think they were mainly meant to be overlapping the biggest concern and you can see this through the legislative history is the expiration date of 12 years.

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where Congress acknowledged that executive privilege makes them beyond 12 years.

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Other than that, the overlapping nature of the 1204A-5 and executive privilege is largely the same.

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I don't want largely, I guess, put aside the time limit.

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I have an agreement about that.

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But as to the content of documents, given the statute, it's clear.

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It's not contracting or expanding it.

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It's not giving you more or less executive privilege.

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And my understanding is presidential communications privilege has always been understood to be a component of executive privilege.

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That's right.

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And so it's- No, you're not arguing that it's broader.

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You don't get anything.

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If there's something you didn't get under executive privilege, you would get it under A5.

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You're not arguing that.

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No, no, you're on we're not arguing that.

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And, of course, as the constitutional privilege there there may be other parts of the analysis that go into the procedures for trying to get documents, but, you know that that is also largely covered by 2020 five.

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And we would also say that this is a question that regarding subject matter jurisdiction that should be fleshed out fully and we understand the court's position on that we would certainly be willing to do supplemental briefing on the issue subject matter

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our jurisdiction, going into the very important issues of, for instance, legislative history without the restrictions on time that we have here today, what we find that useful.

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But it is especially important to see that

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Under the National Coalition, to save our mall case, there is no specific statutory language or clear and convincing evidence of legislative intent to say that former presidents should not have the right to bring such actions such as these.

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In fact, it's very specific they were trying to preserve that right of former presidents.

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With that, I would, unless there are any further questions, I'll hand it over to Mr. Clark to handle the remainder of our issues.

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My colleagues have any more questions for Mr. Gunnell?

[00:21:02] Speaker 07:
Thank you.

[00:21:04] Speaker 03:
Thank you.

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Thank you, Your Honors.

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And I'll be mindful of everyone's time here, just because I know we went over on the jurisdictional question.

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But the merits of this.

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We'll give you the appropriate time for your issues, because they're very important, too.

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Thank you very much, Your Honor.

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The merits of this case really come down.

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And it's been well briefed.

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At its essence, this case comes down to whether a document or record is imbued with and maintains characteristics of privilege when it is made, or whether those characteristics are imposed on it, opposed upon it later.

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when an inquiry or dispute arises under the Presidential Records Act.

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If the former, then the process outlined in the Presidential Records Act works very well.

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If it's the latter, then privilege tends to fail and the concerns raised by Congress at the time of passage with respect to partisanizing presidential records and the process of executive privilege come into play.

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And that's really what it comes down to here.

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I'm sorry, I'm not quite sure I understand your paradigm.

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I apologize, but I didn't think there was any question that no one's disputing that the documents, when I talk about documents, given what Mr. Brown said, we're referencing here the ones

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as to which former President Trump has asserted, and I'll use executive privilege as the umbrella term here for presidential, the statutory and regulatory one as well, we'll just call it executive privilege.

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And as to which President Biden has concluded that executive privilege is not justified.

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And as to those documents, I hadn't heard any arguments from the other side that those things were not

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at least at this stage, were not subject to executive privilege at the time they were created.

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There's nothing about this PRA process that imposes, creates executive privilege.

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And I thought you were asking as your alternative that there's something about this process that

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imposes privilege.

[00:23:25] Speaker 07:
No, I could have been clearer I'm sure your honor, I get that often.

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The, the idea is that

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making a determination with respect to privilege is something that has to look at the characteristics of the document when they were made and when they were created.

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And calling balls and strikes on whether or not a document is privileged or not is really much more of a technical analysis than what I believe the archivist and the Biden administration have done here.

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Making a kind of post

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with respect to executive privilege, instead of looking at the doc.

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making claims over these.

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And just to be very clear about this, former President Trump asserted privilege over a handful of documents that we're talking about here.

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And the majority of documents, as Mr. Vannall referenced, are out the door.

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Congress can have them.

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So creating a determination as to whether or not privilege exists between the two

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the former president, the current president is really what's at stake here.

[00:24:40] Speaker 03:
I guess it's not I don't understand the decision made by President Biden to be that these are not the type of documents as to which executive privilege attaches, but simply like any privilege, it is a privilege that can be

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waived and that it was not into interest.

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He said it's not in the interest of the United States to be asserting it as to as to these documents as to this particular request by this particular committee for these particular reasons.

[00:25:15] Speaker 03:
So that's not saying that I've decided these are not

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eligible in their content for executive privilege, or that they weren't subject to executive privilege when created, but simply that President Biden has said, I'm not going to assert it as to these, I'm waiving it as to the documents.

[00:25:33] Speaker 03:
Isn't that, if we understand it that way, then it's not really a question of when you look at its content.

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It's simply a question, as I understand it in this case, of the current president has said,

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It's a qualified privilege, and it's not a permanent privilege, and it can be waived.

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And I'm making the decision that it is appropriate to share these documents with this committee, given the vital public interest of the United States in this investigation.

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Now, clearly, former President Trump can

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disagree with that and so the issue as I understood before us was not about the content of the documents or when you look at them, but simply what happens when a current incumbent president says I'm not going to

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invoke executive privileges to these documents with respect to this particular request.

[00:26:34] Speaker 03:
He might have a newspaper asked for them or something.

[00:26:37] Speaker 03:
I don't know.

[00:26:38] Speaker 03:
But as to this particular request by the committee, I'm not asserting it.

[00:26:42] Speaker 03:
And former President Trump has said, that's wrong.

[00:26:44] Speaker 03:
You should be asserting it.

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You're going to hurt the executive branch if you don't assert it here.

[00:26:51] Speaker 03:
And so what do we do with this dispute between a current and a former president?

[00:26:58] Speaker 03:
Is that how you understand it?

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Or is there another aspect layer here I'm missing?

[00:27:03] Speaker 07:
Well, I do think what we get into now is the process under the PRA, which I think is important to go through in that determination.

[00:27:12] Speaker 07:
But you're fundamentally right that the question before the court is, what rights do a former president have with respect to his or her documents with respect to executive privilege and an incumbent president?

[00:27:24] Speaker 07:
And how do those come about?

[00:27:27] Speaker 05:
How are we going to sort that out?

[00:27:29] Speaker 05:
So, Mr. Bonhoff, another way of saying exactly what Judge Millett has identified and what I think is the argument of the other side is that this all boils down to who decides.

[00:27:40] Speaker 05:
Who decides?

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when it's in the best interest of the United States to disclose presidential records.

[00:27:47] Speaker 05:
Is it the current occupant of the White House or the former who does have some interest in the confidentiality of the documents?

[00:27:58] Speaker 05:
And one of the things that I took away from their brief that I'd hope you respond to is that they said that they cannot think of any other circumstance in which

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the former president gets to have the final say on matters that relate to present interactions about the branches of government.

[00:28:21] Speaker 05:
So in reality, the decision is whether to accommodate the legislative branch or to resist, right?

[00:28:32] Speaker 05:
That's really what is at stake when they ask for records that are in the archives.

[00:28:37] Speaker 05:
And the administration or the government, current government is saying, we can't think of any other situation in which the former president gets to make that call.

[00:28:48] Speaker 05:
And so maybe you can start by asking whether you, or answering whether you know of any other situation in which the former president is the one who makes it.

[00:28:57] Speaker 05:
And similarly, why should the former president be the one to make that determination when you're talking about

[00:29:06] Speaker 05:
accommodating another branch of government, it would seem that the current president has not only the confidentiality factor that he's thinking about, but the current duty to the interests of the United States even broader than those that the former president would be concerned about.

[00:29:27] Speaker 05:
So if we are looking at this as a who decides kind of question,

[00:29:33] Speaker 05:
Is there a circumstance in which the former president ever gets to make this kind of call?

[00:29:38] Speaker 05:
And why should he under these circumstances?

[00:29:42] Speaker 07:
So I'm glad you brought that up, Your Honor, because I would point the court to 44 USC 2204 in terms of where a former president gets to make the final call with respect to documents.

[00:29:55] Speaker 07:
Write in A, prior to the conclusion of a president's term of office or last consecutive term, president shall specify durations not to exceed 12 years, or taxes shall be restricted with respect to information in a presidential record within one or more of the following categories.

[00:30:09] Speaker 07:
That determination is not subject to judicial review, and it's not subject to review by the former president or by the incumbent president under a statute.

[00:30:18] Speaker 07:
That's a final determination for that 12-year period of time that cannot be overturned by the incumbent president.

[00:30:24] Speaker 05:
But doesn't 2205 have an exception?

[00:30:27] Speaker 05:
I mean, isn't 2204 about the release of documents and the restriction and delay with respect to the public?

[00:30:35] Speaker 05:
But then we have 2205, I hope I'm getting the statutes correct, that says that when either House of Congress is asking for the records, then we don't have that kind of delay.

[00:30:49] Speaker 05:
Isn't that the circumstance we're in?

[00:30:52] Speaker 07:
Well, it is.

[00:30:52] Speaker 07:
I was really answering the question of when, at any other point, does a former president have rights

[00:31:01] Speaker 07:
is an example of that.

[00:31:04] Speaker 07:
That's why I was bringing that up.

[00:31:05] Speaker 07:
But I'm glad under 2205, that's correct.

[00:31:08] Speaker 07:
I think it's really important to realize though that Congress itself limited its own ability to get documents from the archivist under 2205.

[00:31:18] Speaker 07:
And it requires several, well, a few points, right?

[00:31:25] Speaker 07:
any cabinet congress to any committee or subcommittee if they can obtain it if such records contain information that is needed for the conduct of its business and that is not otherwise available so if it's needed for the conduct of its business that's where we get to it has a legislative purpose and the requests they're making are tied to that legislative purpose so

[00:31:48] Speaker 05:
Again, Mr. Clark, I guess I'm still confused as to why the president, the former president gets to make that decision.

[00:31:57] Speaker 05:
It seems to me that this exception applies to the archivist in terms of its determination, his determination that when Congress is presenting a request that it satisfies these requirements and therefore the incumbent president through the archivist is deciding

[00:32:17] Speaker 05:
that, okay, this is conduct of the business.

[00:32:20] Speaker 05:
It's not otherwise available.

[00:32:21] Speaker 05:
Why is it that the former president is the one who gets to decide whether or not the statutory criteria for appropriate legislative request is satisfied?

[00:32:36] Speaker 07:
Well, because I think, Your Honor, because it falls under the statute authorizing it and the subsequent regulations in EO and the GSA versus Nixon grant form president certain rights to make a first determination as to whether executive privilege exists.

[00:32:52] Speaker 07:
Then it goes to the archivist and the incumbent president to make their determination.

[00:32:57] Speaker 07:
What we're saying is that this is all either constitutional or statutory in nature.

[00:33:02] Speaker 07:
And when there's a disagreement between an incumbent president and a former president, both of whom have rights in this, it's incumbent upon the courts, Article III judges, to make a determination whether that privilege exists or not and whether the document should be released.

[00:33:18] Speaker 03:
Right.

[00:33:21] Speaker 03:
Can I ask?

[00:33:22] Speaker 03:
Statute sure says you get to come to court and ask us to make that decision.

[00:33:26] Speaker 03:
So you have that going.

[00:33:27] Speaker 03:
Under 2205, we've been talking about 1, or sorry, 2C, the congressional provision of documents to Congress.

[00:33:36] Speaker 03:
What about, I want to ask you about 2B, which says an incumbent president

[00:33:44] Speaker 03:
can have access to these documents if needed for the conduct of current business and not otherwise available.

[00:33:50] Speaker 03:
So it's the same sort of two prongs that Congress has needed for conduct of business and not otherwise available.

[00:33:57] Speaker 03:
Now, say the incumbent president is engaged in some extremely sensitive and difficult negotiations with a foreign government and wants to see

[00:34:09] Speaker 03:
the history of communications and discussions within by the former president who also dealt with the same difficult negotiations with a difficult foreign country and wants to see those documents to help inform.

[00:34:26] Speaker 03:
President Biden wants to, hypothetically here, this is all hypothetical, wants to use it to inform his ability to be effective in his negotiations.

[00:34:36] Speaker 03:
And so he says, I'm going to go look at those documents.

[00:34:40] Speaker 03:
Is it your position that a former president, in this case former President Trump, and hypothetically any former president, could also go to court and ask a court to enjoin the archivist from giving those documents to the incumbent president?

[00:35:00] Speaker 07:
That's GSA versus Nixon, Your Honor.

[00:35:02] Speaker 07:
That is, and too important.

[00:35:05] Speaker 03:
Okay, so if, so if, if we're sitting, we're sitting here as a court and your position is that the current president wants to see documents within the executive branch held by the archivist, a former president, and it needs them for pressing national security and foreign relations reasons, a former president

[00:35:28] Speaker 03:
can put a halt on that and take it into court to prevent the president from having access to information within the executive branch.

[00:35:36] Speaker 03:
I just want to crystal clear, that's your position.

[00:35:38] Speaker 07:
That's that's the position of GSA versus Nixon.

[00:35:41] Speaker 03:
And I was a different statute.

[00:35:43] Speaker 03:
It was a facial challenge simply to the processing.

[00:35:46] Speaker 03:
I'm asking you here on about twenty two oh five.

[00:35:50] Speaker 03:
And this may well be your position.

[00:35:52] Speaker 03:
I'm just asking to be absolutely clear.

[00:35:54] Speaker 03:
Your position is under the Presidential Records Act.

[00:35:57] Speaker 03:
Twenty two oh five's provision for a incumbent president to get access to these records is equally subject

[00:36:06] Speaker 03:
to litigation and courts would be called upon to decide that debate about whether an incumbent president really needs this information or should be using other sources to manage foreign affairs and national security.

[00:36:22] Speaker 07:
Well, not to manage foreign affairs and national security.

[00:36:24] Speaker 03:
That was my hypothetical to use.

[00:36:29] Speaker 07:
A former president could sue on this.

[00:36:31] Speaker 07:
I think it's really noteworthy that that has literally never happened before because this is the first time there's been a dispute with respect to that.

[00:36:38] Speaker 07:
And I don't know it hasn't happened.

[00:36:41] Speaker 03:
That's why I'm asking.

[00:36:42] Speaker 07:
I would say that one important part of GSA versus Nixon that is facial challenge statute.

[00:36:49] Speaker 07:
That's fine.

[00:36:50] Speaker 07:
We're talking about confidential information.

[00:36:52] Speaker 07:
In that instance, I would presume the incumbent president wouldn't be issuing this for public release or to another branch of government and that there would be

[00:37:00] Speaker 07:
a confidential review of these documents, I can't envision a situation where something that was truly pressing, foreign policy related, that was time sensitive, that wasn't going to be released to the public or wasn't going to be released to another branch outside of the White House and the executive branch, that that would arise because I believe that- You can envision that and I can envision other hypotheticals as well, but your point is that a court would still have to decide between incumbent president and former president on

[00:37:29] Speaker 03:
access to national security material and at a court, sorry, Judge Jackson.

[00:37:39] Speaker 03:
And if that in my hypothetical, the president, there was a very wounded feelings by this foreign country with which relations are extremely sensitive because that the leader of that foreign country said promises were made to me by the former president and

[00:37:58] Speaker 03:
this very serious ones, and there's going to be deep and serious consequences for formulations, military operations within our overflight rights in our country, because I think you're breaking that promise.

[00:38:10] Speaker 03:
And the foreign president for incumbent president wanted to go and look and see what promises were made, what communications there were at the time and discovered the leader of the foreign country.

[00:38:24] Speaker 03:
was not reporting truthfully what happened.

[00:38:26] Speaker 03:
And in fact, promises explicitly were not made.

[00:38:29] Speaker 03:
And so the president said, I need to make public, clear the air.

[00:38:35] Speaker 03:
Here's what was promised.

[00:38:37] Speaker 03:
There's no violation.

[00:38:39] Speaker 03:
I need to do this for the military and national security and foreign interests in the United States government.

[00:38:45] Speaker 03:
I need access to the transcript of that phone call.

[00:38:49] Speaker 03:
And I need to make it public.

[00:38:51] Speaker 03:
right, you were assuming it would have to be internal and confidential, not necessarily in my heart.

[00:38:56] Speaker 03:
I need to make it public to protect our interests.

[00:38:59] Speaker 03:
And to be clear, your position is the former president could come in and file a lawsuit.

[00:39:06] Speaker 03:
And well, I would challenge I know I'm not saying who would win or not.

[00:39:10] Speaker 03:
I'm just saying your position is the ability to file a lawsuit applies to this provision.

[00:39:15] Speaker 03:
And it would be up to the courts, then at that point to decide

[00:39:21] Speaker 03:
who would prevail on the claim as to what should happen with those executive privilege documents.

[00:39:29] Speaker 03:
That's your position.

[00:39:31] Speaker 07:
That is our position, Your Honor.

[00:39:32] Speaker 07:
Under 2205, the way it would go is the former president would just run into trouble.

[00:39:38] Speaker 03:
Sorry, because I'm going to just jump.

[00:39:42] Speaker 03:
I'm just testing what's going on here.

[00:39:46] Speaker 03:
GSA versus Nixon says you get to go to court.

[00:39:49] Speaker 03:
Statute says you get to go to court.

[00:39:51] Speaker 03:
Will you please tell me, under your theory of this statute and scheme, how are courts supposed to resolve the contest between the two?

[00:40:03] Speaker 03:
What is the legal test that we should apply?

[00:40:05] Speaker 03:
What standard of review, if any, do we apply to the incumbent president's determination?

[00:40:10] Speaker 03:
And how do we weigh the competing claims?

[00:40:14] Speaker 03:
What rule of law would you like this court to adopt to write into an opinion that says, here's going forward how, yes, you get to come to court.

[00:40:23] Speaker 03:
And here is how courts should resolve these very grave disagreements between a former president and existing president over executive privilege.

[00:40:34] Speaker 07:
I'm happy to address that, Your Honor.

[00:40:37] Speaker 07:
I would say that the process would start under 2205 in that instance where the archivist would- We're past that now.

[00:40:43] Speaker 03:
You're in court, okay?

[00:40:45] Speaker 03:
We're in court.

[00:40:45] Speaker 03:
We've gone through the process.

[00:40:47] Speaker 03:
The incumbent president said, I need it.

[00:40:50] Speaker 03:
I need to disclose this.

[00:40:51] Speaker 03:
I need to clear the air.

[00:40:53] Speaker 03:
Give it to me, archivists.

[00:40:56] Speaker 03:
You've notified and the former president comes to court and says, no.

[00:41:00] Speaker 03:
I get a right to come to court and protect executive privilege.

[00:41:03] Speaker 03:
Here I am.

[00:41:04] Speaker 03:
And nobody tells us what to do next.

[00:41:06] Speaker 03:
Tell me what to do next.

[00:41:07] Speaker 07:
So you'd apply a test, Your Honor.

[00:41:10] Speaker 07:
What test?

[00:41:11] Speaker 07:
Well, here's the test.

[00:41:12] Speaker 07:
You'd first make a determination whether there's a critical need for the documents for the conduct of its business, OK?

[00:41:18] Speaker 03:
It absolutely is under my hypothetical.

[00:41:20] Speaker 07:
OK.

[00:41:21] Speaker 07:
Number two, is the document available?

[00:41:23] Speaker 07:
You'd determine if the document is available elsewhere, and has Congress sought to be available again?

[00:41:27] Speaker 03:
It's not under my hypothetical.

[00:41:28] Speaker 07:
All right, then you look at the privilege, right?

[00:41:32] Speaker 07:
Does it meet the privilege standard?

[00:41:33] Speaker 07:
It's a privilege document.

[00:41:34] Speaker 07:
If the answer is yes, then you need to say that is the need such that the qualified privilege can be invaded, okay?

[00:41:41] Speaker 07:
Once you're past those first two tests, I would note in those first two prongs,

[00:41:49] Speaker 07:
are satisfied in your hypothetical, they're not satisfied here.

[00:41:52] Speaker 03:
I get that it's a hypothetical for a reason.

[00:41:54] Speaker 03:
I'm really interested in this test, so I wanna make sure I got it.

[00:41:57] Speaker 03:
So you say we've gone through it, the prongs are met, it's just we're at loggerheads between the former and the sitting president on this.

[00:42:06] Speaker 03:
And you say the test is the need such that the privilege is overcome?

[00:42:13] Speaker 03:
Is this like a US versus Nixon test?

[00:42:15] Speaker 03:
That would that's the final problem of the test, but yes, that would be the ultimate tiebreaker here right because in my situation, my hypothetical and I get you have arguments about the the elements not being met and see of legitimate need and alternative avenues.

[00:42:32] Speaker 03:
You're not taking anything off the table.

[00:42:33] Speaker 03:
My hypothetical says those are both satisfied under be And so now all we have is

[00:42:40] Speaker 03:
the two at loggerheads.

[00:42:41] Speaker 03:
And can you just tell me again, your test, is the need such that the privilege is open?

[00:42:46] Speaker 07:
First, in that third prong, is the document privileged?

[00:42:50] Speaker 07:
Does it meet the privilege standard?

[00:42:51] Speaker 07:
Is it a communication?

[00:42:52] Speaker 07:
Of course, yes.

[00:42:54] Speaker 07:
OK.

[00:42:54] Speaker 07:
In that instance, you would then need to look at if the need is such that the qualified privilege can be invaded.

[00:42:59] Speaker 07:
One of the factors in there is confidentiality.

[00:43:02] Speaker 07:
And I think that's really important to remember from GSA versus Nixon.

[00:43:06] Speaker 07:
And if there's a compelling need

[00:43:09] Speaker 07:
a critical need, rather, for it to come out that could overcome that privilege.

[00:43:17] Speaker 07:
But I would note in GSA and Nixon, those were going to be confidentially reviewed documents.

[00:43:23] Speaker 07:
So I just think that's really important to remember.

[00:43:24] Speaker 07:
In your hypothetical, obviously, that's different.

[00:43:27] Speaker 03:
So what would the answer be in my hypothetical?

[00:43:29] Speaker 03:
If you were a judge, what would you do?

[00:43:31] Speaker 03:
Would you think that situation of national security, military, foreign relations,

[00:43:39] Speaker 03:
angry, sensitive foreign government.

[00:43:41] Speaker 03:
Is that overcoming?

[00:43:43] Speaker 07:
I don't know, Judge.

[00:43:46] Speaker 07:
I would need to know a lot more about it.

[00:43:48] Speaker 03:
But I don't know what more you need to know.

[00:43:49] Speaker 03:
I've given you some.

[00:43:50] Speaker 03:
I'm not going to name a country.

[00:43:54] Speaker 03:
I don't think that would matter so much.

[00:43:56] Speaker 07:
I'm not here to make a determination on that.

[00:43:58] Speaker 07:
But what I'm here to do is tell you what I think the analysis is.

[00:44:01] Speaker 03:
Let me ask the question another way.

[00:44:03] Speaker 03:
And I apologize, Judge Jackson.

[00:44:05] Speaker 03:
I knew you had a question.

[00:44:05] Speaker 03:
I just want to drill this down.

[00:44:08] Speaker 03:
Is there any circumstance in which the privilege could be overcome, even though the information is not guaranteed to be kept confidential?

[00:44:20] Speaker 03:
Is there any circumstance or is your rule that there is not?

[00:44:24] Speaker 07:
Is there a circumstance?

[00:44:25] Speaker 07:
I'm sure there is, and there are going to be pressing matters where it could be, but we don't have any case law that confirms that.

[00:44:32] Speaker 03:
I know we don't have any case law, that's why I'm asking this question.

[00:44:34] Speaker ?:
I don't know.

[00:44:35] Speaker 07:
Calling balls and strikes on ethics, non-legal ethics things aren't my bailiwick.

[00:44:42] Speaker 03:
This is not non-legal ethics.

[00:44:45] Speaker 03:
To be crystal clear, I don't understand.

[00:44:46] Speaker 03:
This is not non-legal ethics.

[00:44:47] Speaker 03:
I'm talking about, can the privilege be overcome under your test?

[00:44:51] Speaker 03:
Can it be invaded, this qualified privilege be invaded?

[00:44:54] Speaker 03:
Sure.

[00:44:54] Speaker 03:
It was invaded in GSA.

[00:44:55] Speaker 03:
Even without confidentiality?

[00:44:58] Speaker 07:
Even without confidentiality, probably.

[00:45:00] Speaker 07:
I would say probably.

[00:45:00] Speaker 07:
I just can't think of a hypothetical off the top of my head where it would be.

[00:45:04] Speaker 03:
Did you ever ask the district court for an injunction, not against release, but an injunction against the house, requiring the house to keep these documents confidential?

[00:45:13] Speaker 07:
I don't have my docs in front of me.

[00:45:19] Speaker 03:
It's not in your preliminary injunction.

[00:45:22] Speaker 03:
Judge Jackson saw something I didn't in there.

[00:45:26] Speaker 03:
And I didn't get in the argument transcript.

[00:45:31] Speaker 03:
So you didn't ask for that limitation to the court.

[00:45:35] Speaker 07:
I mean, we couldn't really, Your Honor, because of the speech and debate clause in the Constitution.

[00:45:39] Speaker 07:
If Congress gets something, there's nothing a court can do to stop a member of Congress.

[00:45:43] Speaker 03:
No, no, no, no, no.

[00:45:44] Speaker 03:
Of course you couldn't do that.

[00:45:46] Speaker 03:
What you would do is you would say an injunction of the archivist only releases it to Congress under a read-only rule or a confidentiality rule.

[00:45:56] Speaker 07:
We did not ask for that, Your Honor, in large part because I don't believe it would be effective against Congress.

[00:46:02] Speaker 07:
Such an order wouldn't actually keep the documents confidential.

[00:46:06] Speaker 08:
You don't think that you could ask for a protective order and you don't think that Congress would have to be bound by a protective order?

[00:46:14] Speaker 07:
An individual member of Congress would not have to be bound by a protective order if they were to go to the House floor and read what they had just read in a confidential setting.

[00:46:27] Speaker 08:
So how is the test to be applied that you've suggested any different if the incumbent president

[00:46:41] Speaker 08:
also asserts privilege and there's no disagreement.

[00:46:45] Speaker 08:
Both the former president and the incumbent president say executive privilege and we're here in that posture.

[00:46:55] Speaker 08:
Is the test any different or is the test the same?

[00:46:59] Speaker 07:
Well, I don't think you have a test at that point.

[00:47:01] Speaker 07:
I don't think it would get to a court if an incumbent president and the former president agreed that a document was privileged.

[00:47:09] Speaker 07:
you wouldn't need to meet any of those factors because it wouldn't come to court.

[00:47:14] Speaker 07:
The archivist simply wouldn't release the documents at that point.

[00:47:18] Speaker 05:
Mr. Bonnell, I mean, excuse me, Mr. Clark, that actually strikes at the heart of the question that I had in listening to Judge Millett's hypothetical, which is the assumption for the purpose of the hypothetical in your discussion that

[00:47:39] Speaker 05:
there really is a cause of action either in GSA versus Nixon or in the statute for a former president to constrict the courts into resolving a dispute between him and the incumbent president over the invocation of executive privilege with respect to these records.

[00:48:01] Speaker 05:
And I need to say that I'm not quite sure, maybe not as sure as my colleagues,

[00:48:08] Speaker 05:
that that's actually present.

[00:48:12] Speaker 05:
As I read GSA versus Nixon, that case was not about the disclosure of records, whether it be to Congress, whether it be to the public.

[00:48:21] Speaker 05:
That case, it seems to me, was about whether the former president retained a confidentiality interest in records that the statute now says belongs to the United States.

[00:48:34] Speaker 05:
So it was sort of like a property thing.

[00:48:37] Speaker 05:
The new statute comes in, they say, these records no longer belong to you, President Nixon, they belong to the United States.

[00:48:44] Speaker 05:
And he wanted to maintain and exert his interest in confidentiality over those records, notwithstanding the fact that they now belong to the United States.

[00:48:57] Speaker 05:
And I read the Supreme Court as merely saying that,

[00:49:02] Speaker 05:
he has such a confidentiality interest, even though the records are in that state, that there's nothing unconstitutional about the statute that makes the records the property of the United States, that he still gets to raise it, but it's a diminished interest because he's no longer in possession of the records, that he's no longer the president.

[00:49:27] Speaker 05:
But it's really not about what happens when

[00:49:33] Speaker 05:
The current president says these records need to be released either because I want to use them, they're about a foreign government or whatever, or because Congress is asking for them and the conflicts between the two of them on the call of what happens to the record.

[00:49:52] Speaker 05:
So to the extent that you find in that case, the right to come to court

[00:49:57] Speaker 05:
to dispute the current president's ability to release the records.

[00:50:02] Speaker 05:
I don't see that in that case because that's not the circumstance.

[00:50:06] Speaker 05:
I also don't necessarily see it in the statute.

[00:50:10] Speaker 05:
So if you look at the E, which is what I thought was sort of where you were getting this 2204 E, it says that

[00:50:20] Speaker 05:
the former president can initiate, bring an action asserting that a determination made by the archivist violates the former president's rights and privileges.

[00:50:31] Speaker 05:
It doesn't say executive privilege.

[00:50:33] Speaker 05:
It doesn't say constitutional privilege.

[00:50:35] Speaker 05:
It says rights and privileges.

[00:50:37] Speaker 05:
And I think that at least one reasonable way to interpret that is that the statute itself gives the president lots of rights concerning this process.

[00:50:48] Speaker 05:
It says you get the right

[00:50:49] Speaker 05:
to review these documents.

[00:50:52] Speaker 05:
You get the right to prevent their release before you review them in the 30 day period.

[00:51:00] Speaker 05:
Personal records have to be segregated out by the archivist.

[00:51:03] Speaker 05:
And so that gives you the right to say, hey, wait a minute, this record is a personal record and not a presidential record.

[00:51:11] Speaker 05:
Those kinds of things could easily be litigated by the court when the president says, the archivist is about to release a record that violates my rights and privileges.

[00:51:22] Speaker 05:
I don't think it is necessarily the case that that language encompasses the right to oppose the current president's invocation of executive privilege in court concerning the records.

[00:51:39] Speaker 05:
There's a whole set of other rights that the president could litigate and I don't necessarily see that in this statute.

[00:51:46] Speaker 05:
So maybe you can talk about or explain to me why I am wrong

[00:51:52] Speaker 05:
that in a situation in which you have this kind of dispute between the current and the former president, there really is the right of the former president to go to court to do something about the current president's determination.

[00:52:11] Speaker 07:
I appreciate the question, Your Honor, and I understand where you're coming from on this.

[00:52:14] Speaker 07:
I think the disagreement that I have with you in my understanding is that if you read 2204,

[00:52:22] Speaker 07:
And you identified E. And we're getting down to the determination of what a right or a privilege is.

[00:52:31] Speaker 07:
I read GSA versus Nixon as creating a constitutional right of a former president to have certain rights over his or her documents when they were president.

[00:52:46] Speaker 07:
I believe codifies that right to be able to make that challenge to it.

[00:52:49] Speaker 05:
And 22- But to be clear, even in Nixon, that right was not sufficient to overcome the public interest as identified by the current president to have, maintain, and preserve those documents.

[00:53:03] Speaker 05:
I mean, if you're right, Nixon comes out a different way, Nixon versus GSA, because the former president in that case asserts

[00:53:14] Speaker 05:
the right of confidentiality in the documents.

[00:53:17] Speaker 05:
The Supreme Court says, yes, we see that you have some right, but the current president has made a determination that you can't just take those documents and destroy them.

[00:53:29] Speaker 05:
You can't use them for your own purposes.

[00:53:32] Speaker 05:
They're now in the archives.

[00:53:33] Speaker 05:
They're the property of the United States.

[00:53:35] Speaker 05:
And he's decided that they need to be preserved, that there are important governmental and historical reasons to preserve them.

[00:53:43] Speaker 05:
So even in that case, the determination of the current president overcomes whatever confidential rights or whatnot the former president has.

[00:53:55] Speaker 05:
So I'm not saying the former president doesn't have any right of confidentiality.

[00:53:59] Speaker 05:
What I'm saying is what do we do and where in the case does it suggest

[00:54:04] Speaker 05:
that whatever confidential right the former president has, it overcomes the determination of the current president that it's important that these documents be preserved in Nixon, and in our case, that they be released.

[00:54:21] Speaker 07:
I believe, and our position is that the law creates a situation where the former president's, all that matters is the disagreement between the former president and the incumbent president.

[00:54:33] Speaker 07:
Once that disagreement occurs, an Article III court has to make a determination.

[00:54:38] Speaker 07:
That's why the right to sue exists under the statute.

[00:54:42] Speaker 07:
That's why Nixon and GSA is there, and the court can give weight to

[00:54:47] Speaker 07:
but balancing that test that I outlined before and determining whether there's a critical need.

[00:54:54] Speaker 05:
You're rejecting my reading of the statute as giving the former president the right to make sure that the archivist is doing what the statute says concerning the processing of records, giving him the rights and privileges that the statute itself conveys, right?

[00:55:13] Speaker 05:
to him concerning this set of documents.

[00:55:16] Speaker 05:
That is a reading of the statute, that it doesn't say, I mean, I would expect if you will write a provision in the statute that addresses this very situation, when the incumbent president says, executive privilege is waived, I'm allowing these documents to go out, and the former president says, no, no, I have executive privilege and I'm asserting it,

[00:55:42] Speaker 05:
then the former president gets to come to court and the court would decide and in an ideal world the court would decide and here are the standards this is what Judge Millett was trying to get at here are the standards that the court would use none of that is in the statute and so as a result it makes me worry

[00:56:03] Speaker 05:
that the circumstance that you are trying to have the statute give you a cause of action to proceed under is really not what's going on here at all.

[00:56:13] Speaker 05:
That everybody, you know, we've looked at the legislative history.

[00:56:17] Speaker 05:
We see, for example, that executive orders, almost all of them have determined

[00:56:26] Speaker 05:
that when you have this kind of conflict between incumbent and former, incumbent gets to decide, right?

[00:56:34] Speaker 05:
So I just don't know that the statute is saying, no, incumbent doesn't get to decide.

[00:56:41] Speaker 05:
Instead, take it to the court and let them be the one to decide between current and former.

[00:56:47] Speaker 05:
I don't see that in the statute.

[00:56:49] Speaker 07:
I think you see the right to sue in the statute.

[00:56:52] Speaker 07:
And then I think the regulation at 36 CFR 1270, spot 44, section F3 outlines it a little bit more.

[00:57:02] Speaker 03:
Sorry, can you give me that side again?

[00:57:04] Speaker 03:
Just make sure.

[00:57:05] Speaker 07:
Yes, Your Honor.

[00:57:07] Speaker 07:
36 CFR 1270, spot 44, section F, subsection 3.

[00:57:16] Speaker 07:
If the incumbent president does not uphold the claim asserted by the former president fails to decide before the end of the 30 day period of this section or withdraws a decision upholding the claim, the archivist discloses the presidential record 60 calendar days after the archivist received notification of the claim.

[00:57:32] Speaker 07:
Unless a court order and an action in any federal court directs the archivist to withhold the record, including an action initiated by the former president under 44 USC 2204 E. And that action would be the one

[00:57:46] Speaker 03:
The one, I'm assuming that court action would be one referenced in E, which I assume was building on Nixon versus GSA, which rejected the argument that only an incumbent president may assert such claim of privilege and hold the appellant as a former president may also be heard to assert them.

[00:58:06] Speaker 07:
That's right, Your Honor.

[00:58:07] Speaker 07:
And that's part of the basis of our complaint under 2204, which is why it's referenced there, because this CFR references that and also references the exceptions to restricted access, which is in 2205.

[00:58:24] Speaker 07:
So that's how I think we get there.

[00:58:27] Speaker 07:
And that's kind of what fills in some of the blanks that Judge Jackson pointed out with respect to the statute in 2204.

[00:58:34] Speaker 08:
Can you also be citing 2208 C2C?

[00:58:42] Speaker 07:
Yes, and I don't have my copy of my statute in front of me.

[00:58:45] Speaker 07:
But yes, Your Honor.

[00:58:47] Speaker 08:
Because that's where it says, if the incumbent president determines not to uphold the claim of privilege,

[00:58:53] Speaker 08:
by the former president, then the archivist shall release the records at the end of this 90 day period, unless directed otherwise by a court order in an action initiated by the former president.

[00:59:09] Speaker 08:
So doesn't that language anticipate that the former president could bring an action like the one you brought here?

[00:59:19] Speaker 07:
Yeah, yes, your honor.

[00:59:21] Speaker 05:
And so then in the context of that action, um, what this is Judge Malek question, what is the court supposed to do?

[00:59:33] Speaker 05:
Do we start from scratch to determine which president has the right, um, view of this?

[00:59:42] Speaker 05:
Do we look at the records?

[00:59:44] Speaker 05:
Do we?

[00:59:45] Speaker 05:
Is it our determination or does it matter?

[00:59:48] Speaker 05:
that we have a current president who's made the decision, that doesn't matter.

[00:59:54] Speaker 05:
We treat them equally.

[00:59:55] Speaker 05:
There's no deference given to the current president because he's current.

[01:00:00] Speaker 07:
I don't believe so.

[01:00:01] Speaker 07:
I think there needs to be an objective test that the court would employ.

[01:00:04] Speaker 07:
First, looking at if there's a critical need for the documents.

[01:00:07] Speaker 03:
Sorry, can I just clarify your answer to Judge Jackson?

[01:00:10] Speaker 03:
When you said, I don't think so, does that mean you don't think there's any deference to the decision of the existing president?

[01:00:15] Speaker 03:
Is that what you weren't thinking so?

[01:00:16] Speaker 03:
I just want to make sure I understood that transition.

[01:00:18] Speaker 07:
Yeah, I don't believe there is.

[01:00:20] Speaker 07:
I believe that the court needs to employ an objective test to determine

[01:00:25] Speaker 07:
Which party is correct?

[01:00:27] Speaker 03:
The Supreme Court in Nixon versus GSA was explicit that when it comes to evaluating the interests of the executive branch, that when that call is made by the incumbent president,

[01:00:42] Speaker 03:
the counterargument, the interest asserted by the former president is diminished, which sounds to me like it counts for something.

[01:00:55] Speaker 07:
I don't disagree with that take on GSA v. Nixon at all.

[01:00:59] Speaker 07:
What I'm saying, though, is I think there are a few steps prior to

[01:01:02] Speaker 07:
that presidential determination in terms of privilege that a court would need to weigh.

[01:01:08] Speaker 07:
And that's with respect to Congress's business under under 2205.

[01:01:12] Speaker 05:
So analyzing, why is that?

[01:01:16] Speaker 07:
Well, the statute Congress limited its own ability to obtain documents under 2205 right and it limited it to to records that contain information that's needed for the conduct of its business and is not otherwise available.

[01:01:29] Speaker 07:
So I think a court needs to make a determination that there's a legitimate legislative purpose.

[01:01:36] Speaker 07:
in a meaningful way.

[01:01:38] Speaker 05:
And no deference is given to the incumbent who presumably has made that determination because the archivist has to decide in the first instance whether this is an appropriate request, right?

[01:01:49] Speaker 05:
So the incumbent president presumably, per the statute, has decided those two points.

[01:01:57] Speaker 05:
And so when it comes to the court now,

[01:02:00] Speaker 05:
You say that there is the opportunity for the court to make this determination.

[01:02:05] Speaker 05:
And I guess what I'm asking is, do we defer in any way to the incumbents determination that those criteria are satisfied.

[01:02:16] Speaker 07:
I actually don't think so.

[01:02:18] Speaker 07:
I mean, I don't think that runs in the face of GSA versus Nixon, because this is under a congressional request under the statute.

[01:02:25] Speaker 07:
So I think the demonstration of a critical need and looking at the connection between the legislative purpose and the actual request, whether they need those specific requests to answer their legislative need, is a job for an Article III court when there's a dispute.

[01:02:40] Speaker 03:
Well, in the court, the court says statutory criteria are satisfied.

[01:02:45] Speaker 03:
Court agrees.

[01:02:47] Speaker 03:
put deference aside for now.

[01:02:48] Speaker 03:
The court says, before or not, we would agree that they are met here.

[01:02:53] Speaker 03:
In hypothetical case, I'm not going to ask you direct questions about this case.

[01:02:57] Speaker 03:
In hypothetical, in some other case, the court agrees, the president decides, the incumbent president decides, the court agrees, the statutory criteria are met.

[01:03:07] Speaker 03:
And so once again, here we are, a court left with the incumbent president

[01:03:15] Speaker 03:
and the former president, really at loggerheads, only about one thing, and that is the interests of the executive branch, right?

[01:03:22] Speaker 03:
That's what President Trump, he's here in his official capacity.

[01:03:24] Speaker 03:
He's not asserting any personal confidentiality interests, anything like that.

[01:03:28] Speaker 03:
He's here asserting, and this is all your arguments have talked about, the interests of the executive branch in confidentiality.

[01:03:36] Speaker 03:
And so President Biden makes one call, the incumbent president makes one call, former president makes another on the same question.

[01:03:44] Speaker 03:
the interests of the executive branch, whether they will be able to weather the storm of this waiver of executive privilege.

[01:03:53] Speaker 07:
And GSA says... Well, I think you missed one part of the test, which is that is the document available elsewhere.

[01:04:05] Speaker 03:
I've told you the statutory criteria.

[01:04:08] Speaker 03:
Criteria, not un, plural, are met.

[01:04:11] Speaker 03:
Okay.

[01:04:11] Speaker 03:
I'm now at, those were past that, past statutory criteria.

[01:04:17] Speaker 07:
GSA would say to give weight to the incumbent president and their determination.

[01:04:23] Speaker 03:
And the former president's interest and ability to evaluate the interests of the executive branch is diminished.

[01:04:30] Speaker 03:
We have one president at a time under our constitution.

[01:04:33] Speaker 03:
That's what GSA is saying.

[01:04:35] Speaker 03:
And that the incumbent president has said,

[01:04:38] Speaker 03:
has made the judgment and is best positioned, and the Supreme Court has told us, to make that call as the interest of the executive branch.

[01:04:45] Speaker 03:
So just as between those two arguments, former president's view of the interest of the executive branch and confidentiality of these documents, incumbent president, the president, has made the decision about the interest of the executive branch and confidentiality, given all the statutory criteria are met.

[01:05:05] Speaker 03:
What then?

[01:05:07] Speaker 07:
We are in Nixon versus GSA, where- Right, and Nixon versus GSA says the incumbents carries more weight.

[01:05:15] Speaker 03:
So what happens then?

[01:05:15] Speaker 03:
You lose.

[01:05:16] Speaker 03:
The former president, not you, sorry, let me rephrase, the former president loses.

[01:05:21] Speaker 07:
Yes, if there is a question, if it only comes down to a question of the interests of the executive branch, if it only comes down to that, the court has to weigh it.

[01:05:31] Speaker 07:
And under GSA versus Nixon, the court gave more weight to a former president than the incumbent president than the former president.

[01:05:37] Speaker 03:
So if in some hypothetical case a court finds itself at that stage, gone through the statutory country, and I am not dismissing here for a second, you have your arguments about those statutory criteria.

[01:05:47] Speaker 03:
I hear those loud and clear.

[01:05:49] Speaker 03:
But if a court moves past those, here's the former president's arguments about the needs for confidentiality of the executive branch, and here's the incumbent president's determination, the incumbent president wins.

[01:06:00] Speaker 07:
Well, the incumbent president's determination gets more weight.

[01:06:04] Speaker 07:
I don't think they win.

[01:06:05] Speaker 03:
I wouldn't say that.

[01:06:06] Speaker 03:
Well, I thought that's what you just said.

[01:06:08] Speaker 03:
So then what happens?

[01:06:09] Speaker 03:
So then what?

[01:06:10] Speaker 07:
Well, then the court has to weigh everything.

[01:06:12] Speaker 07:
The court's got to weigh, does it meet a privilege standard?

[01:06:15] Speaker 07:
What are the contents of the documents and what are we talking about here?

[01:06:20] Speaker 03:
We're talking about presidential communications privileges.

[01:06:23] Speaker 07:
I mean, does it get into territory that Congress was concerned about, where they passed the law, where the archivist could be susceptible to possible pressure from the incumbent president to release embarrassing and inappropriate material concerning a predecessor arrival?

[01:06:37] Speaker 07:
And from the predecessor?

[01:06:38] Speaker 03:
All right, I'm sorry.

[01:06:40] Speaker 03:
Where are you reading from in the statute?

[01:06:41] Speaker 07:
I'm just reading from the Presidential Records Act debate on the floor, which we had in the legislative history.

[01:06:49] Speaker 07:
I mean, there are other possibilities that the court could weigh

[01:06:54] Speaker 07:
not just the incumbent president's termination.

[01:06:56] Speaker 03:
What else should be weighed in this case?

[01:06:58] Speaker 03:
If I assume we're there again, and this is getting, this is just assuming we get past your arguments about, I'm not saying that we do.

[01:07:06] Speaker 03:
I understand we have to go through, and your theory, we have to go through those statutory criteria.

[01:07:13] Speaker 03:
And if we say they're met, and this is all executive privilege material, you've asserted it,

[01:07:20] Speaker 03:
They aren't disputing.

[01:07:22] Speaker 03:
And you've got arguments about executive privilege.

[01:07:26] Speaker 03:
The incumbent president has made a judgment about needs of the executive branch.

[01:07:32] Speaker 03:
The incumbent president gets more points on the scoreboard on that question.

[01:07:37] Speaker 03:
What else in this case are we supposed to weigh at this point?

[01:07:43] Speaker 03:
in this case now, not hypothetical.

[01:07:45] Speaker 07:
Well, we're not there yet on this case, because you would actually have to look at the individual documents in question.

[01:07:50] Speaker 03:
Under what authority do you say we have to look at the individual documents?

[01:07:54] Speaker 07:
Well, I believe in a court in making a determination on this.

[01:07:58] Speaker 07:
Once we got to this final part of the test, we need to look at the documents to determine whether or not they should be released and whether or not the interests of Congress.

[01:08:07] Speaker 03:
How is the courts?

[01:08:08] Speaker 03:
So you have made no particularized arguments at all.

[01:08:13] Speaker 03:
Normally in a FOIA case, there's arguments focused on the particular document and the interest in it.

[01:08:20] Speaker 03:
And there's declarations from the government, at least, about their need for privilege.

[01:08:27] Speaker 03:
The person asserting privilege has provided a declaration that's particularized to the documents at issue.

[01:08:34] Speaker 03:
We have no declaration.

[01:08:35] Speaker 03:
We have no particularization.

[01:08:38] Speaker 03:
Your thought is that without any guidance from the former president,

[01:08:45] Speaker 03:
without any insights, any declaration, any argument even from the former president.

[01:08:51] Speaker 03:
The court itself is supposed to go through and make arguments that the former president hasn't as to individual documents.

[01:08:59] Speaker 03:
That's your position in this case.

[01:09:03] Speaker 07:
I'm not sure I follow you, Your Honor.

[01:09:06] Speaker 03:
What arguments has your client made or have you made in this case that says it's an individual document?

[01:09:13] Speaker 03:
This one really, really can't be disclosed because it's about X. And this one really, really put aside general interest in executive branch confidentiality.

[01:09:24] Speaker 03:
This one really is so sensitive.

[01:09:27] Speaker 03:
It outweighs the extra points on the scoreboard.

[01:09:31] Speaker 03:
for the incumbent president.

[01:09:32] Speaker 03:
Where is that in this record?

[01:09:34] Speaker 07:
Well, your honor, it's not there yet.

[01:09:36] Speaker 07:
And we're at the preliminary injunction.

[01:09:37] Speaker 03:
Not there yet.

[01:09:38] Speaker 03:
No, I know.

[01:09:38] Speaker 03:
Well, you have the burden of establishing your right to a preliminary injunction.

[01:09:42] Speaker 03:
And you want the court preliminary injunction stage, is that right, to go through these documents?

[01:09:49] Speaker 07:
I think the preliminary injunction is meant to withhold the documents until the court has the opportunity to go through and make a determination.

[01:09:55] Speaker 05:
But you're only entitled to that based on

[01:09:59] Speaker 05:
an assessment of whether you have a likelihood of success on the merits, which means that you have to point to evidence that would support your contention that these documents are subject to being withheld, not withstanding the determination of the incumbent that they should be released under these circumstances.

[01:10:21] Speaker 05:
Judge Bled is saying you have not gone through and looked at the particular documents with an eye toward

[01:10:28] Speaker 05:
giving the court the argument and the evidence as to why these particular documents, when we get to the final stage of this analysis, should be withheld, notwithstanding the incumbent's determination about what is in the best interest of the United States.

[01:10:45] Speaker 05:
And let me just add that what is in the best interest of the United States, I think, determination includes not just a look at how confidential these documents are,

[01:10:57] Speaker 05:
and what is in the best interest of the executive with respect to confidentiality, but also accommodations, which is the way this is normally worked.

[01:11:08] Speaker 05:
So what I mean by that is that the incumbent president, I would think, is making a decision about whether or not to cooperate with the legislature.

[01:11:20] Speaker 05:
And that encompasses not just how confidential these are and all of the concerns

[01:11:26] Speaker 05:
related to confidentiality, but also the process of negotiation back and forth, how we're going to behave with respect to these documents or other documents in light of legislative requests.

[01:11:42] Speaker 05:
It's the co-equal branches of government in operation.

[01:11:47] Speaker 05:
And so that's a pretty weighty concern, I would think, when the

[01:11:53] Speaker 05:
executive is making a decision that it should give or shouldn't give the records and it's a concern that is not on the table necessarily with respect to the former president.

[01:12:03] Speaker 05:
So if the former president wants to come back and say

[01:12:07] Speaker 05:
notwithstanding a determination that the executive incumbent has made about the release of these particular documents in light of all of the things that are going on, we still say that the document should be withheld.

[01:12:21] Speaker 05:
Judge Millett is pointing out that you really have to make a showing about these records and why that's so important under these circumstances.

[01:12:29] Speaker 05:
And so where in the record have you done that?

[01:12:32] Speaker 07:
We made our claims in the complaint and in our briefing that these documents fall under traditional categories of executive privilege.

[01:12:42] Speaker 07:
And we're talking about the privilege and what's in the individual documents, what those specifically are.

[01:12:49] Speaker 07:
There will be a line where you can't go over and then the documents are just kind of out in public in terms of what they are.

[01:12:55] Speaker 07:
But we've made

[01:12:57] Speaker 07:
And your comment about political accommodation is really important.

[01:13:02] Speaker 07:
In this instance, the former president has made really, I think, very consistent and honest attempts to make calls with respect to executive privilege.

[01:13:15] Speaker 05:
But that's not what your brief says, by the way.

[01:13:18] Speaker 05:
I'm surprised to hear that, because your briefs suggest, without evidence as far as I can discern,

[01:13:27] Speaker 05:
that the current president has not done?

[01:13:31] Speaker 05:
You think the former president has done?

[01:13:36] Speaker 05:
OK, so what is your view on whether the incumbent president has exercised his duty carefully and thoughtfully?

[01:13:45] Speaker 05:
That's not what your brief says.

[01:13:46] Speaker 07:
No, that's right.

[01:13:47] Speaker 07:
I stand by our brief and that one, because the incumbent president has simply said that,

[01:13:54] Speaker 07:
they are releasing all of the documents without a determination, or they disagree with the incumbent or the former president's determination on privilege and releasing all the documents.

[01:14:05] Speaker 08:
So I have a couple of questions here.

[01:14:08] Speaker 08:
The first one is, suppose in a hypothetical situation, Congress issues a subpoena to the archivist, and there's 10 categories

[01:14:25] Speaker 08:
10 document requests for the former president's records.

[01:14:32] Speaker 08:
And the incumbent president goes to Congress and says, you know, I'll waive privilege as to two of the 10 as an accommodation, but I'm not as to the rest.

[01:14:53] Speaker 08:
and I'll waive privileges to two of the 10 if you agree that you'll accept that and just withdraw the other eight requests so that we don't have any court battles.

[01:15:05] Speaker 08:
And Congress says, okay, fine, we'll take that deal.

[01:15:11] Speaker 08:
But the former president says, no, shouldn't make that deal, I'm objecting

[01:15:19] Speaker 08:
And I want to claim privilege to even those two categories.

[01:15:26] Speaker 08:
Your view would be that if the incumbent president has reached an accommodation that wouldn't require court involvement, the former president could bring an action and require the court to get involved anyway, right?

[01:15:48] Speaker 08:
Yes, your honor.

[01:15:49] Speaker 08:
Okay.

[01:15:51] Speaker 08:
And to, I guess, get back to the prior questioning about your argument for document by document review, it seems to me that your argument is inconsistent with our precedent, i.e.

[01:16:07] Speaker 08:
Senate Select Committee v. Nixon and Nixon v. Sirica.

[01:16:15] Speaker 08:
Because Senate Select Committee basically approved and kind of reaffirmed the prior on block decision from Nixon v. Sirica, which said that you can make the privilege determination kind of writ large against the whole class of documents.

[01:16:38] Speaker 08:
and say that the need overrides the privilege and therefore the privilege has to yield and the documents have to be produced.

[01:16:47] Speaker 08:
But there is a second step, which is that kind of akin to a Vaughan index and a FOIA case, and they cited EPA v. Mink, a Supreme Court case, they said that like, if as to a particular document,

[01:17:06] Speaker 08:
the president were to say, well, that one isn't really responsive to the request or it's really sensitive because it's got personal information or kind of there's some other kind of extraordinary circumstance or that document should be redacted or maybe a substitute should be produced.

[01:17:29] Speaker 08:
then you can make those individual requests, but you essentially have to prepare something like a privilege log or a Vaughn index where you say, as to these documents, they shouldn't be produced because they're not really responsive or there's personal information or some other kind of compelling reason why, even though that privilege has been overcome,

[01:17:53] Speaker 08:
We want you court to look at those in camera and here's our argument for why those shouldn't be produced.

[01:17:59] Speaker 08:
That's what Nixon v. Sirica said.

[01:18:02] Speaker 08:
That's our precedent.

[01:18:04] Speaker 08:
And you haven't done that.

[01:18:07] Speaker 08:
You're just saying the court just has to go through every document by document and determine individually whether the privilege should obtain.

[01:18:16] Speaker 08:
But that's not the way we say we do this, at least the way I read those cases.

[01:18:21] Speaker 08:
Tell me why that's wrong.

[01:18:23] Speaker 07:
I don't necessarily disagree with your reading of those cases, but what I would say is that this is the first time under this statutory scheme that we've dealt with this situation.

[01:18:34] Speaker 07:
And the only process I see in terms of being able to do this in an appropriate way is for a court ultimately to look at these documents.

[01:18:45] Speaker 07:
And here's why, Judge.

[01:18:48] Speaker 07:
Under the process of the PRA, the way it works is first the former president receives the documents to do a review and assert their privilege.

[01:18:57] Speaker 07:
I believe they're on NARA's website.

[01:18:59] Speaker 07:
I could be mistaken, but the letters are out there.

[01:19:02] Speaker 07:
The former president then sends a letter to the archivist

[01:19:05] Speaker 07:
outlining essentially what you disclosed.

[01:19:08] Speaker 07:
There are situations where something was withheld because it wasn't a presidential record.

[01:19:14] Speaker 07:
There were certain documents that a decision with respect to those were deferred, and those are outlined in that letter from the former president.

[01:19:23] Speaker 07:
The documents then, well, it's not one after the other, but at some point after the former president receives them, the incumbent president receives those documents and does their own review.

[01:19:35] Speaker 07:
and issues a letter after the former president does in response to that.

[01:19:38] Speaker 07:
And that's what we have here.

[01:19:40] Speaker 07:
The process then really turns to the former president going to court at that point.

[01:19:48] Speaker 07:
And so that's where we are in the process right now.

[01:19:52] Speaker 07:
And I don't necessarily disagree with you that a priv log

[01:19:56] Speaker 07:
or something like that would come up, but we're under a statutory scheme and kind of what we have.

[01:20:02] Speaker 08:
I don't see anything, I'm sorry, counsel, but there's nothing in the statute that says that the privilege determination has to be made on a document by document basis.

[01:20:12] Speaker 08:
What we have in our precedent, and the court didn't listen to the tapes before they determined that privilege had been waived in Nixon, didn't have to listen to the tapes to determine

[01:20:25] Speaker 08:
whether there was a privilege or the privilege was overcome.

[01:20:30] Speaker 08:
They knew basically what was the subject matter discussed in the tapes and they knew what the legislative or the purpose was for the grand jury to have the tapes and they made the call.

[01:20:44] Speaker 08:
And they made the call kind of on a categorical basis

[01:20:49] Speaker 08:
But they said, but look, to the extent that there's like a particular aspect of the tape or a particular aspect of a document, then you can raise whether that's really responsive to the request or whether you need the whole document or the whole tape or you redact it because of some sort of sensitive nature.

[01:21:11] Speaker 08:
But that's a second step.

[01:21:13] Speaker 08:
That's after the determination of whether or not

[01:21:18] Speaker 08:
privilege has been overcome.

[01:21:21] Speaker 08:
Because if the privilege hasn't been overcome, like it wasn't in Senate select committee, you don't get to that second step.

[01:21:29] Speaker 08:
You just say, ah, there's no, the privilege obtains and it hasn't been overcome.

[01:21:37] Speaker 08:
So Congress doesn't get the tapes in that case.

[01:21:41] Speaker 08:
So

[01:21:43] Speaker 08:
You seem to be blurring the kind of two steps and that's that's what my concern is.

[01:21:51] Speaker 08:
On to that, please.

[01:21:53] Speaker 07:
Yes, your honor.

[01:21:53] Speaker 07:
And I understand your concern on that.

[01:21:56] Speaker 07:
I just when you get down to there, there needs to be some

[01:22:02] Speaker 07:
review, whether it's a general view of the contents or something, of these documents by an Article III court to see whether it fits within a privilege category once you get to that third step of the analysis.

[01:22:14] Speaker 07:
I don't know how to- Can I clarify something?

[01:22:16] Speaker 03:
I don't mean to interrupt your response, but when you say whether it falls within a privilege category, are you asking the courts to look at them to see whether, to verify whether former President Trump was accurate in asserting executive privilege?

[01:22:31] Speaker 03:
That's all?

[01:22:32] Speaker 07:
I think you have to in that third step.

[01:22:36] Speaker 03:
OK, but assuming, let's say the court says, I'm going to give you.

[01:22:44] Speaker 03:
These are all executive privilege documents.

[01:22:48] Speaker 03:
But you said this comes after the income of president has waived executive privilege.

[01:22:55] Speaker 03:
And that doesn't make sense to me.

[01:22:58] Speaker 03:
And you agree that under Nixon versus GSA in that,

[01:23:02] Speaker 03:
you know, whether it's in the interests of the executive branch, the long-term interests, the interests of the United States, not to assert executive privilege here.

[01:23:10] Speaker 03:
Nixon versus GSA is quite explicit.

[01:23:13] Speaker 03:
More points on the scoreboard for the incumbent president in the Wayne analysis.

[01:23:19] Speaker 03:
And so,

[01:23:20] Speaker 03:
It doesn't matter at that point if we stipulate that these are executive privilege.

[01:23:26] Speaker 03:
I don't see where that gets you if the court looks and goes, yeah, they're executive privilege.

[01:23:30] Speaker 03:
We could look at them all.

[01:23:31] Speaker 03:
We could look at them all and say, yeah, they all fall within executive privilege.

[01:23:34] Speaker 03:
We'll credit former President Trump's assertion of that.

[01:23:37] Speaker 03:
But that doesn't change the balance that Nixon versus GSA already struck on that very issue.

[01:23:43] Speaker 07:
You have two steps prior to that that a court needs to review.

[01:23:47] Speaker 03:
Would before you get to that analysis, one is the critical need analysis in terms of stop, please stop, please stop because we're here's where we've been I thought through this argument.

[01:23:57] Speaker 03:
All right, we are assuming the statutory criteria have been met.

[01:24:03] Speaker 03:
We're assuming that they've been met.

[01:24:04] Speaker 03:
We're stipulating that those have been met, all right?

[01:24:08] Speaker 03:
And we're now in court, and I'm back where I was, the former president and president of our loggerheads, as to the interests of the executive branch of the United States, and the incumbent president wins that debate under Nixon versus GSA, right?

[01:24:21] Speaker 03:
Gets to make that call under Nixon versus GSA.

[01:24:24] Speaker 03:
The former president just isn't in a position to do that.

[01:24:27] Speaker 03:
And then you say, well, now let's look at the document to see if they really are executive privileged.

[01:24:30] Speaker 03:
It doesn't matter.

[01:24:31] Speaker 03:
because the incumbent president has said, I agree these are executive privilege.

[01:24:37] Speaker 03:
Or even if I agree or I agree, I am not choosing to exercise that privilege.

[01:24:43] Speaker 03:
So it changes the analysis, not a wit for a court to spend time going, yeah, executive privilege, not executive privilege.

[01:24:51] Speaker 03:
It's been waived.

[01:24:53] Speaker 03:
Is that what you want?

[01:24:53] Speaker 03:
You want the document review just to determine whether these are executive privilege documents or not?

[01:24:59] Speaker 07:
No, to make a determination as to whether the qualified privilege of executive privilege should be invaded.

[01:25:06] Speaker 03:
Okay, but so that's again where it seems like it's the burden is on the former president to come forward with some reason as to why not withstanding the extra points on the scoreboard for the incumbent president on making a judgment about waiving executive privilege.

[01:25:28] Speaker 03:
the former president's going to have to come back with some interest, something that's missed in that calculation, some supervening interest, and it won't be enough to go, see, I told you it was executive privilege.

[01:25:39] Speaker 03:
See, I told you it was an executive privilege document.

[01:25:42] Speaker 03:
You're going to have to come up with something more powerful that's going to outweigh the incumbent president's decision to waive, right?

[01:25:51] Speaker 03:
You're going to have to change the score on that scoreboard.

[01:25:54] Speaker 05:
So for example, Mr. Clark, you could say with respect to these particular documents, there's going to be some concrete harm to the executive that I'm identifying, presenting to the court, explaining, but it's sort of in the same vein as Judge Wilkins and Judge Millett have been talking about because you come back and you say, here it is.

[01:26:21] Speaker 05:
This is why, even though the incumbent president wants to waive the privilege, it needs to stay in place and I need to be able to prevent these documents from being released.

[01:26:34] Speaker 05:
Here's the concrete harm that this particular document will cause if it goes out to Congress.

[01:26:43] Speaker 07:
The harm here is the constitutional harm to the executive branch, which I know we've discussed.

[01:26:51] Speaker 07:
And I don't believe that I've raised this except at the beginning of my argument that the former president's determination with respect to privilege, in some instances, is going to be a more, a better determination with respect to privilege because of

[01:27:06] Speaker 07:
the context of conversations of documents and records, whatever, and the court needs to weigh those.

[01:27:12] Speaker 07:
I mean, again, in 2204, a former president can't wave, or sorry, I keep mixing those terms up, a incumbent president can't wave a former president's determination of privilege assertions to the public for a 12-year period of time.

[01:27:28] Speaker 07:
the archivist shall not disclose records.

[01:27:31] Speaker 07:
In that instance, we've said, yeah, former president not only has rights, but knows better.

[01:27:36] Speaker 03:
Sure, but 2205, where Congress or an incumbent president asked for them, says, notwithstanding 2204.

[01:27:44] Speaker 07:
But all I'm saying with this, Your Honor, is that it's evidence that there are going to be instances where a former president is going to know context and issues

[01:27:52] Speaker 07:
better than an incumbent president with respect to certain documents.

[01:27:57] Speaker 05:
Right.

[01:27:57] Speaker 05:
And Judge Wilkins points out, and as I tried to point out before, that the incumbent president will know better the needs of the executive branch with respect to accommodation of the legislature, right?

[01:28:11] Speaker 05:
The briefs from the appellees talk about the fact that the incumbent president has the current president relationship with Congress.

[01:28:20] Speaker 05:
and is taking into account not only the confidentiality interests as put forward or expressed by the former president, but also other things.

[01:28:31] Speaker 05:
Judge Wilson's hypothetical was exactly that.

[01:28:34] Speaker 05:
We're making a deal, says the current president, about the release of these records.

[01:28:39] Speaker 05:
So why then would it be

[01:28:43] Speaker 05:
that the court should preference the former president's concerns about confidentiality, even though he had may have the superior knowledge of what the documents were about or whatnot.

[01:28:56] Speaker 05:
We're in a different world today because we have a different president who's taking into account not only confidentiality, but other things.

[01:29:05] Speaker 07:
There are considerations such as, if we look at a document and it's going to be an embarrassment to a former president, if it's meant to cause political turmoil, it's what Congress itself was concerned about in its passage of the PRA when it passed it.

[01:29:21] Speaker 07:
There are factors and there are going to be factors that a court needs to weigh in determining whether a document or a series of documents need to be disclosed.

[01:29:29] Speaker 03:
and that's that's really what we're saying here in terms of the reviewing documents we're not talking about any but you've made no showing on this record in support of your preliminary injunction motion that the documents that issue on these first three tranches involved that any of those concerns

[01:29:49] Speaker 02:
if we've raised it specifically as to the category.

[01:29:54] Speaker 07:
Yeah.

[01:29:54] Speaker 07:
I mean, we've raised it with respect to the categories of documents that are there.

[01:29:58] Speaker 03:
You have no evidence.

[01:29:59] Speaker 03:
You have no evidence.

[01:30:00] Speaker 03:
I'm sorry.

[01:30:01] Speaker 03:
I'm sorry.

[01:30:01] Speaker 03:
You've raised what?

[01:30:02] Speaker 03:
That it'll be in the what?

[01:30:05] Speaker 07:
We've raised concern about categories of documents that were.

[01:30:10] Speaker 03:
You can have concerns, but you all have looked.

[01:30:13] Speaker 03:
You or someone on your side of the table has actually looked at these documents.

[01:30:19] Speaker 03:
And I've seen nothing in your briefs or arguments.

[01:30:24] Speaker 03:
There's certainly no declaration, but even in your briefs or arguments that says, look, as to five of these documents, they will do nothing but finish the sentence.

[01:30:34] Speaker 07:
That's fair, Your Honor.

[01:30:35] Speaker 07:
That is not specifically in the record with specificity on each document.

[01:30:41] Speaker 03:
Wait, did you say you have concerns?

[01:30:43] Speaker 03:
And your concerns have come up with, I think, generally in your

[01:30:46] Speaker 03:
about the global reach of this congressional request?

[01:30:49] Speaker 07:
Well, yes, because there are concerns with the breadth of the request, which I'm sure you'll get into with opposing counsel.

[01:30:55] Speaker 07:
But the concern here is we are on a timeline in terms of a 30-day timeline.

[01:31:02] Speaker 07:
And getting a preliminary injunction so we can hash out these issues is really important on our end.

[01:31:08] Speaker 03:
And that's where I think we are.

[01:31:15] Speaker 03:
Mr. Clark, please.

[01:31:16] Speaker 03:
kept you up a very long time.

[01:31:17] Speaker 03:
I'm sure you'd like a drink of water or something warm.

[01:31:19] Speaker 03:
But I have to say, I'm sorry, Judge Wilkins, I think I jumped in on the answer to your question.

[01:31:23] Speaker 03:
So I didn't know if you needed to follow up.

[01:31:25] Speaker 03:
I apologize.

[01:31:26] Speaker 03:
I was just trying to understand what you were saying.

[01:31:28] Speaker 08:
No, that's fine.

[01:31:29] Speaker 08:
I guess what I'm trying to get at counsel is we're kind of switching gears for a second.

[01:31:41] Speaker 08:
Any privilege can be waived.

[01:31:43] Speaker 08:
The attorney-client privilege can be waived.

[01:31:47] Speaker 08:
Um, so why is the executive privilege different in that you agree that the executive privilege can be waived as a general matter, right?

[01:32:06] Speaker 08:
Yes.

[01:32:08] Speaker 08:
So your argument is that the incumbent doesn't have the absolute right to waive the privilege.

[01:32:21] Speaker 08:
The former president can object and say, no, I don't want to waive the privilege.

[01:32:32] Speaker 08:
And then the court has to decide whether the incumbents

[01:32:38] Speaker 08:
desire to waive the privilege should be given effect.

[01:32:41] Speaker 08:
Is that the way we should look at this case?

[01:32:44] Speaker 08:
Yes, your honor.

[01:32:46] Speaker 08:
So in determining whether to give effect to the incumbent president's desire to waive privilege, you say that we should use a test that is essentially the same as the test that we would use if the incumbent president

[01:33:08] Speaker 08:
said, I'm not waiving privilege.

[01:33:11] Speaker 08:
And this were just a fight between Congress and the incumbent and former presidents over whether the executive privilege has been overcome.

[01:33:23] Speaker 08:
You're basically saying we should use the exact same test, aren't you?

[01:33:28] Speaker 07:
I think it's similar, for sure.

[01:33:31] Speaker 07:
I don't think it's the exact same, Your Honor, because you've got a statutory scheme in this instance that you follow.

[01:33:36] Speaker 07:
But boy, they're very similar to the Supreme Court's President Mazars and others with respect to a fight between the executive branch and Congress over the wave.

[01:33:46] Speaker 08:
The same test, as if the incumbent president's determination to waive privilege didn't happen at all.

[01:33:58] Speaker 08:
is irrelevant, doesn't matter.

[01:34:01] Speaker 08:
Why shouldn't we use the same kind of balancing test in this context?

[01:34:08] Speaker 07:
I think in many ways you are, but I don't think it's the exact same only because you've got statutory language here, Judge.

[01:34:13] Speaker 07:
That's the really big distinction here with respect to any test and release of documents.

[01:34:23] Speaker 03:
And I will just following up on an earlier exchange you have with Judge Jackson, I do think it is

[01:34:29] Speaker 03:
to the credit of former President Trump that he has been discerning and going through these documents and hasn't sort of done a global assertion of privilege.

[01:34:38] Speaker 03:
That means that these documents have all been carefully looked at and thought about.

[01:34:45] Speaker 03:
And that's good for the process.

[01:34:49] Speaker 03:
If my colleagues don't have any more questions at this stage, then I think we've held you a little bit over your time.

[01:34:55] Speaker 03:
But we will still give you, I promise we will still give you some rebuttal time.

[01:34:58] Speaker 07:
I appreciate that, Your Honor.

[01:35:00] Speaker 07:
Thank you, Your Honor.

[01:35:01] Speaker 03:
We'll hear from Mr. Letterman.

[01:35:09] Speaker 03:
Hang on, you're not muted yet, Mr. Clark, before you start whispering.

[01:35:20] Speaker 02:
May it please the court, I'm Douglas Leder, the General Counsel of the US House of Representatives.

[01:35:27] Speaker 02:
With me today, I was going to say in the courtroom, but in the room here are Eric Columbus and Stacey Fossil from the House General Counsel's Office, and Mary McCord, Annie Owens, and Joseph Mead from the Georgetown Law Center Institute for Constitutional Advocacy and Protection.

[01:35:47] Speaker 02:
What I wanted to do was just make a short point upfront and then I was planning to go through and respond to various questions that the court has posed, but obviously we'll interrupt that at any point with the other questions that you have.

[01:36:09] Speaker 02:
I think it is very important

[01:36:11] Speaker 02:
given the argument that has been made today to remember what Chief Justice Marshall said in the United States versus Burr, said the president, quote, is elected from the mass of the people.

[01:36:24] Speaker 02:
And on the expiration of the time for which he is elected returns to the mass of the people again."

[01:36:31] Speaker 02:
End quote.

[01:36:32] Speaker 02:
And Judge Chutkin's decision certainly picked up on that.

[01:36:37] Speaker 02:
And we really do have, as one of your honors observed a little while ago, we have one president at a time.

[01:36:44] Speaker 02:
And the argument being made here by Mr. Trump just doesn't give that sufficient weight.

[01:36:50] Speaker 03:
Well, I mean, to be fair, we do have one president at a time, but Supreme Court has told us that at least as to this question of executive privilege and confidentiality within the executive branch, that claim can be asserted by a former president, even when not asserted.

[01:37:11] Speaker 03:
by the incumbent president.

[01:37:14] Speaker 02:
That's absolutely right, Your Honor.

[01:37:16] Speaker 03:
It doesn't get us to that point.

[01:37:18] Speaker 02:
However, as we know, as I said, that's absolutely right, Your Honor, I was interrupting you to say.

[01:37:26] Speaker 02:
But as we know, as the Supreme Court set out in Nixon versus GSA, it is the views of the current president that are so obviously

[01:37:37] Speaker 02:
paramount in part because of the very hypothetical that you raise your honor, you can easily envision circumstances when the current president

[01:37:49] Speaker 02:
is making determinations about national security, foreign affairs, et cetera.

[01:37:54] Speaker 02:
And it has to be in that circumstance that we have the president.

[01:37:59] Speaker 03:
I get that, but here's what I find so difficult here because Nixon versus GSA said the former president can shoot the statute says even when the incumbent president is not asserting the privilege, the former president could go to court, right?

[01:38:14] Speaker 03:
There could be a court order that would interrupt disclosure

[01:38:20] Speaker 03:
And what I'm grappling with is assuming, and that's something to be talked about, I'm sure, but assuming statutory criteria are satisfied, in your view, what type of showing would a former president need to make to be able to prevail over the views of an incumbent president?

[01:38:46] Speaker 03:
Because it seems to me quite silly

[01:38:49] Speaker 03:
I don't think Springport was being silly in Nixon versus GSA.

[01:38:51] Speaker 03:
And I assume Congress wasn't being silly in recognizing that the incumbent president could persuade a court to stop a disclosure.

[01:38:59] Speaker 03:
So it can't be that we all go to court and we go, incumbent president wins.

[01:39:05] Speaker 03:
Thank you for playing.

[01:39:07] Speaker 03:
There'd be no point to a lawsuit.

[01:39:10] Speaker 03:
So what is envisioned?

[01:39:11] Speaker 03:
What type of showing is it that a former president can make that will overcome

[01:39:18] Speaker 03:
decision, or even the indecision, the staying silent of a former president, of an incumbent president, excuse me, on the privilege.

[01:39:28] Speaker 03:
What can overcome?

[01:39:29] Speaker 03:
And how do courts review those competing claims?

[01:39:31] Speaker 02:
Right.

[01:39:32] Speaker 02:
Your Honor, a couple of responses.

[01:39:34] Speaker 02:
One, an indecision case might

[01:39:37] Speaker 02:
raise totally different factors.

[01:39:39] Speaker 02:
It's not clear to me that maybe we can come up with a hypothetical where the current president is just extremely busy overseas, whatever.

[01:39:48] Speaker 02:
And so something raises a situation very different from this one, where the current president has looked at the very documents that are at issue and made a specific determination about them.

[01:40:04] Speaker 02:
In those circumstances, Your Honor, we have

[01:40:07] Speaker 02:
thrown around, various hypotheticals, et cetera, we find it very difficult to come up with anything that's realistic when the views of the current president, the determinations by the current president would not govern.

[01:40:22] Speaker 02:
I'm guessing that, again, that we can come up with some extremely strange hypotheticals that don't have much to do with reality.

[01:40:32] Speaker 03:
You're representing at least the House of Representatives, which is part half of the entity that enacted this statute.

[01:40:37] Speaker 03:
And it specifically envisions a former president being able to obtain a court order over the contrary views of the incumbent president.

[01:40:48] Speaker 03:
And I assume it wasn't because they were envisioning the sort of inconceivable hypotheticals that you're talking about.

[01:40:56] Speaker 03:
You see something realistic in this statute.

[01:41:00] Speaker 02:
A couple things, Your Honor.

[01:41:01] Speaker 02:
One is the former president could sue

[01:41:06] Speaker 02:
to challenge determinations made by the archivist about what is within the restrictions or not within the restrictions.

[01:41:15] Speaker 02:
So that's one thing that the former president could do without challenging some determination by the current president about executive privilege.

[01:41:27] Speaker 02:
Two, as I said, maybe there are some circumstances when

[01:41:33] Speaker 02:
the current president just has not weighed in at all.

[01:41:37] Speaker 02:
That could pose a difference.

[01:41:40] Speaker 03:
But that's not the statute.

[01:41:40] Speaker 03:
The statute is if the incumbent president determines not to uphold.

[01:41:44] Speaker 03:
So it's not my, I was giving you both options in case you have something to offer me.

[01:41:50] Speaker 03:
The statute itself is really talking about the two bandit loggerheads.

[01:41:55] Speaker 02:
Yes, and Your Honor, again, for example, I think we've

[01:42:01] Speaker 02:
mentioned, if there's some situation when the current president is acting in a way that is so far outside the realm,

[01:42:14] Speaker 02:
of how a president is supposed to act.

[01:42:19] Speaker 02:
And for whatever reason, if he's not being impeached, maybe the Congress is of the same party or one of the houses or something, but is acting so far outside the realm of what is reasonable.

[01:42:33] Speaker 03:
What about if it's January 21st and new president has come in and new president says,

[01:42:44] Speaker 03:
I won.

[01:42:46] Speaker 03:
And Congress is in control of the same party as the White House.

[01:42:51] Speaker 03:
They're all in the same party.

[01:42:52] Speaker 03:
And every committee of the House and the Senate and every subcommittee starts lobbying in document requests to the archivists for everything covering all four years of the prior president, so your eight years, whichever it was.

[01:43:13] Speaker 03:
And the current president and the new president says, I disagreed with everything that former president did, everything they stood for.

[01:43:22] Speaker 03:
I thought it was a travesty for the American people.

[01:43:27] Speaker 03:
And I think it's in the interest of the United States that every single executive privileged document be released to these committees and to the public.

[01:43:41] Speaker 03:
go do it and just because I disagree with everything that person did and stood for and said.

[01:43:47] Speaker 03:
And so it's in the interests of the United States in the new president's judgment to release everything.

[01:43:57] Speaker 03:
Needless to say, the former president comes to court, doesn't hang on.

[01:44:03] Speaker 03:
What happens?

[01:44:04] Speaker 02:
I think the current president would prevail in those circumstances, Judge Mallette, because the current president would have made what could be totally reasonable and rational judgments that what the current president, what the former president did is so outrageous, maybe fomented an insurrection

[01:44:24] Speaker 02:
against the Congress of the United States.

[01:44:27] Speaker 02:
No, no, no.

[01:44:28] Speaker 03:
We're not going to make it that easy.

[01:44:29] Speaker 03:
All right.

[01:44:29] Speaker 03:
So we're going to talk instead.

[01:44:31] Speaker 03:
No, it says it's in the interest.

[01:44:32] Speaker 03:
You know, I won my landslide.

[01:44:35] Speaker 03:
American people really are unhappy with what happened.

[01:44:39] Speaker 03:
And so I am going to avenge the people of the United States on this precedent.

[01:44:45] Speaker 03:
I'm going to avenge them.

[01:44:48] Speaker 00:
Yes, you are.

[01:44:49] Speaker 03:
So if the buyer is to see all these documents, they're all coming out.

[01:44:53] Speaker 05:
Excuse me, Judge Mollett, are you talking about in this hypothetical release to the public or release to the Congress?

[01:45:02] Speaker 03:
Both.

[01:45:02] Speaker 03:
Every committee asks, I'm going to give it to all the committees and I'm going to give it to the public.

[01:45:07] Speaker ?:
Both.

[01:45:07] Speaker 02:
Yeah, Your Honor, the way you've now framed the hypothetical, it seemed to me that the former president would have a strong argument that could be made.

[01:45:19] Speaker 02:
What would that argument be?

[01:45:21] Speaker 03:
Because the current president will have said it's in the interest of the United States and the people of the United States to see all this.

[01:45:27] Speaker 03:
I'm going to avenge their interests by this person that they

[01:45:32] Speaker 03:
resoundingly voted out of office.

[01:45:35] Speaker 03:
It was a complete electoral landslide in my hypothetical.

[01:45:38] Speaker 03:
And I've made that judgment.

[01:45:41] Speaker 03:
And so what's the court supposed to do?

[01:45:43] Speaker 03:
That's not look at motives?

[01:45:45] Speaker 03:
Are we supposed to say, well, you got the interests of the American people, the interests of the public wrong?

[01:45:52] Speaker 03:
You didn't, you weren't careful enough?

[01:45:53] Speaker 03:
What is the court supposed to say?

[01:45:55] Speaker 02:
Right.

[01:45:56] Speaker 02:
And that's why your hypothetical is frankly a very difficult one.

[01:45:58] Speaker 02:
Let me analyze to go through it.

[01:46:01] Speaker 02:
Remember that the Supreme Court recognized this in part by saying we assume that a current president will be aware

[01:46:12] Speaker 02:
of the institutional interests of the presidency, given that the current president realizes that at some point he or she is going to be a former president, and therefore that will act as some sort of break on that.

[01:46:25] Speaker 02:
Two, however, if in your hypothetical it's the current president saying, I want to punish that guy I beat, I just want to punish him,

[01:46:38] Speaker 02:
And so I'm going to make sure that everything is known.

[01:46:43] Speaker 03:
Well, I think it's in the United States to have this response.

[01:46:49] Speaker 02:
Right.

[01:46:49] Speaker 02:
And that and that's what makes it too easy.

[01:46:53] Speaker 02:
Right.

[01:46:53] Speaker 02:
That's right.

[01:46:55] Speaker 02:
But I was giving I was trying to say why Congress might have come up with this is a letter.

[01:47:02] Speaker 05:
I thought your answer was going to implicate the one situation that Mr. Clark pointed to.

[01:47:08] Speaker 05:
that is the difference between 2204 and 2205, which is in a situation like the one Judge Millett hypothesizes, Mr. Clark suggested that 2205 would give the former president the right to say these documents cannot be released to the public for a certain period of time.

[01:47:34] Speaker 05:
And that what we're dealing with here is the exception

[01:47:38] Speaker 05:
and the extent to which Congress gets the records, not withstanding that and different president determinations about whether to give them to Congress.

[01:47:48] Speaker 05:
And so to, am I wrong about like, could we accept Mr. Clark's reading of 2204 to be that in a situation in which there's a dispute between the former and current president over release to the public,

[01:48:07] Speaker 05:
Congress has made the determination that the former president would get to decide which records get released over time in the way that the statute says.

[01:48:18] Speaker 05:
Maybe the former president wins that battle, but that that's really not what's happening in a government request kind of situation.

[01:48:28] Speaker 02:
I think you're right, Judge Jackson, that those are two different situations, and it might therefore be that in a situation involving simply a release to the public, there might be circumstances when the former president could sue and could

[01:48:47] Speaker 02:
prevail hypothetically, again, there would be something so far outside our experience as a nation.

[01:48:57] Speaker 02:
But I think that you, as your hypothetical is coming up with, if instead this is a request from Congress, we believe that the 2204E provides that the former president can raise a claim about privilege.

[01:49:16] Speaker 02:
They can raise a claim, but overwhelmingly, the current president is going to prevail in that kind of circumstance.

[01:49:27] Speaker 03:
And as I say, my hypothetical was the answer with respect to the statutory claim as to public release.

[01:49:37] Speaker 03:
What's the answer to that?

[01:49:38] Speaker 03:
I will ask to release to the member to the committees of Congress from my hypothetical about it's in the interests of people in the United States to

[01:49:46] Speaker 03:
avenge ourselves on what happened for the last four years.

[01:49:50] Speaker 02:
And I'm sorry, Judge Malletta, I wasn't sure I heard you're saying this.

[01:49:54] Speaker 03:
They asked you what happens when he comes to court with respect to count one.

[01:49:59] Speaker 03:
Don't release them to the committees.

[01:50:01] Speaker 03:
I've asked for everything under the sun.

[01:50:03] Speaker 03:
Every committee has something in and they got all four years pretty well covered here.

[01:50:09] Speaker 03:
What's the response?

[01:50:11] Speaker 02:
So if it's a request by Congress,

[01:50:16] Speaker 02:
it seems to me that overwhelmingly the current president would prevail.

[01:50:25] Speaker 02:
But I'm willing to say, I don't want to say never.

[01:50:28] Speaker 02:
I don't want to get caught up.

[01:50:29] Speaker 03:
You can't conceive of an ever and you're not willing to say that my hypothetical would be an exception.

[01:50:35] Speaker 02:
Your honor, I can conceive.

[01:50:37] Speaker 02:
I don't think I can conceive of a realistic one.

[01:50:41] Speaker 08:
The council, whether or not

[01:50:44] Speaker 08:
the incumbent president would prevail doesn't really tell us how a court should determine whether the incumbent president would prevail.

[01:50:56] Speaker 08:
I mean, do we, you know, we don't just flip a coin or draw straws or something.

[01:51:03] Speaker 08:
What test are we supposed to use?

[01:51:07] Speaker 02:
And, Your Honor, putting aside the highly unrealistic hypothetical, I think the test is rather clear.

[01:51:18] Speaker 02:
It is the current president is in the best position, best by far, to determine what is in the interests of the executive branch at that time.

[01:51:28] Speaker 02:
The current president has weighed, as the Supreme Court indicated, we assume the current president takes into account

[01:51:37] Speaker 02:
that there are benefits provided by executive privilege.

[01:51:39] Speaker 02:
And so how those should be carried out.

[01:51:42] Speaker 02:
And then they put the current president makes a determination as this president did, bringing it back to this case.

[01:51:48] Speaker 02:
This president, as we know, said we have an extremely strong interest here in the select committee being able to carry out this investigation.

[01:52:00] Speaker 02:
as part of its legislative duties, responsibilities.

[01:52:04] Speaker 02:
And therefore in that situation, the courts, what the court should do is say the current president has spoken and that's it, we're done.

[01:52:15] Speaker 05:
Can I test something because I'm still, I'm still interested in the language of the statute and the provisions that my colleagues have pointed out with respect to the current, the former president's ability to bring a claim.

[01:52:30] Speaker 05:
What I'm noticing is that the statute, and I'm looking right now at 2208 C2C, which I think Judge Wilkins previously raised, it says, if the incumbent president determines not to uphold the claim of privilege asserted by the former president or fails to make a determination,

[01:52:56] Speaker 05:
the archivist shall release the presidential record subject to the claim at the end of the 90-day period unless otherwise directed by a court order.

[01:53:07] Speaker 05:
And then this is the part that I'm sort of homing in on, in an action initiated by the former president under Section 2204E of this title or by a court order in another action in any federal court.

[01:53:24] Speaker 05:
So to the extent that the former president is relying on the first part of that court order and an action initiated by the former president, I am wondering whether it is possible to interpret a court action initiated by the former president under that statute, not to actually be putting the two presidents at loggerheads on the broad question of executive privilege, but

[01:53:54] Speaker 05:
to be a claim about whether the archivist has followed the rules with respect to what the statute gives the former president in terms of the amount of time or whatever else.

[01:54:08] Speaker 05:
It seems like it's very qualified language.

[01:54:11] Speaker 05:
The Congress is saying an action initiated by the former president under that section

[01:54:18] Speaker 05:
and that section doesn't talk about constitutional rights or the extent to which the president can make a different call on executive privilege than the former.

[01:54:29] Speaker 05:
So in my hypothetical analysis of this, it would seem that the president can raise a constitutional claim, the former president, the incumbent president takes a look,

[01:54:43] Speaker 05:
says you know what for whatever reason accommodations or anything else i'm not going to invoke it i'm going to waive it and then to the extent that the current the former president still wants to say that those records should not be released he can make a claim under 2204e about

[01:55:07] Speaker 05:
the practices of the archivist or whatever else in the court can review that because then you'd have standards, right?

[01:55:13] Speaker 05:
The statute actually says what is supposed to be done in a circumstance procedurally related to the records.

[01:55:21] Speaker 05:
So if the president has claims about those sorts of things, notwithstanding the incumbent's view of executive privilege, then he can raise it.

[01:55:31] Speaker 05:
Now, I don't know what to do about the second part of this by a court order in another action.

[01:55:37] Speaker 05:
And maybe that's where we get to the former president raising the executive privilege claim in federal court.

[01:55:46] Speaker 05:
But I think I can still read 2204E as allowing the former president to make a kind of claim about the rights and privileges that the statute itself

[01:55:59] Speaker 05:
provides in an effort to prevent the release of documents that he believes are privileged or whatever else.

[01:56:07] Speaker 05:
Do you understand what I'm saying?

[01:56:08] Speaker 05:
That was a long-winded question, but what do you think about that?

[01:56:14] Speaker 05:
Am I misreading 2204?

[01:56:16] Speaker 05:
Do you concede that E allows for the executive privilege claim brought by the former president in contrast to what the incumbent president has said?

[01:56:29] Speaker 02:
As you recognize this one question, I can't give yes, no, but exactly.

[01:56:35] Speaker 02:
Yes, a lot of what you say is correct.

[01:56:38] Speaker 02:
But remember, 2208.

[01:56:41] Speaker 02:
is specifically the provision that talks about disclosure to the public.

[01:56:46] Speaker 02:
So 2208 does not apply to this case.

[01:56:51] Speaker 02:
But you've said if there were instead a claim under 2208, yes, that- That helps my scenario even more.

[01:57:01] Speaker 05:
So we don't even have the language of or another court order.

[01:57:04] Speaker 05:
We have only E,

[01:57:06] Speaker 05:
And if I'm reading E to mean, Mr. Former President, you can claim that the archivist didn't give you enough time that you, you know, as the statute requires, or that this is a presidential, a personal record, not a presidential record, and you can come to court.

[01:57:23] Speaker 05:
If I'm reading it that way, then we don't really have a world in which the court is

[01:57:30] Speaker 05:
resolving a direct confrontation between the two presidents on the question of executive privilege, right.

[01:57:38] Speaker 02:
I believe so, Your Honor, but again, I want to emphasize, yes, that we're under 2208, but that, so yes, there are hypothetical situations in which a court could rule on certain things depending on what the current and former president has down and said or nothing.

[01:57:59] Speaker 05:
That would mean that we don't have a situation that my colleagues are worried about, presumably, hypothetically.

[01:58:08] Speaker 05:
that the court is being called upon to decide who has the better of the executive privilege issue.

[01:58:15] Speaker 05:
The incumbent has been, because he's made the determination, and the only thing the former president can complain about in court is the whether and to what extent the rights and privileges that are listed in the statute have been followed.

[01:58:32] Speaker 02:
And again, Your Honor, I want to be very clear on this because this is very important.

[01:58:38] Speaker 02:
Yes, there may be claims that a former president can make in court under 2208 involving requests from the public for access.

[01:58:55] Speaker 02:
So yes, what we have though here is a request by Congress.

[01:59:01] Speaker 02:
So this is covered by 2204E,

[01:59:07] Speaker 02:
and 20, which must be read in conjunction with 2204C2, which as you know, says nothing shall be construed to confirm, limit, et cetera, expand the constitutionally based privileges available to a former president.

[01:59:23] Speaker 02:
So that is executive privilege.

[01:59:26] Speaker 02:
So it's an executive privilege claim that would be brought under 2204E.

[01:59:32] Speaker 02:
And remember that the statute, a different statute, but in many ways related, GSA contains similar language where the Supreme Court thought that privilege meant executive privilege.

[01:59:47] Speaker 02:
So if I may, just to summarize again, if we have a case like this one,

[01:59:54] Speaker 02:
where it's a disclosure to Congress that's governed by 2204E, 2204C2, et cetera.

[02:00:04] Speaker 02:
And that means that the former president can raise privilege claims, as we've said,

[02:00:15] Speaker 02:
the current president should overwhelmingly win any of those if they are indeed at loggerheads, as they argue.

[02:00:23] Speaker 03:
There's no question of the cause of action.

[02:00:25] Speaker 03:
And in fact, one of the statutory terms is the presidential communications privilege.

[02:00:29] Speaker 03:
So both as a statutory claim and a constitutional claim, they're both here under 2204E2.

[02:00:36] Speaker 03:
And as you said, all read in light of 2204C.

[02:00:41] Speaker 03:
We're not touching we're not we're not withdrawing anything under this statute that is constitutionally based, which Nixon versus GSA tells us includes the former incumbent has as one of right or privilege which everybody look at it to

[02:00:58] Speaker 03:
address and raise claims of executive privilege.

[02:01:02] Speaker 03:
So we do, in fact, the statute does create the very loggerheads, assuming we get past the statutory criteria that are argued about by your friends on the other side.

[02:01:12] Speaker 03:
But it doesn't tell us what to do.

[02:01:15] Speaker 03:
But it doesn't tell us what to do.

[02:01:19] Speaker 05:
What do we do?

[02:01:20] Speaker 02:
It doesn't.

[02:01:21] Speaker 02:
But that's where I'm sorry, Judge Wilkins, did I interrupt?

[02:01:26] Speaker 02:
I'm sorry.

[02:01:27] Speaker 02:
I thought I heard a voice.

[02:01:28] Speaker 02:
I may have been wrong.

[02:01:29] Speaker 04:
No, go ahead.

[02:01:30] Speaker 02:
OK, I'm hearing voices.

[02:01:31] Speaker 02:
That's the right.

[02:01:35] Speaker 02:
The statute doesn't tell you what to do.

[02:01:37] Speaker 02:
That's where I believe the Constitution tells you what to do, because the Constitution, for instance, as we cited our brief silo law says what many Supreme Court decisions have said.

[02:01:48] Speaker 02:
We have one president who runs the executive branch.

[02:01:52] Speaker 02:
Nixon versus GSA, I'm sure we've all read it backwards and forwards for this case by now at least six times, says, yes, the former president can raise that claim, but I want to come back to that in just a moment, can raise that claim, but the current president holds sway there certainly.

[02:02:14] Speaker 03:
Now, remember, they hold sway.

[02:02:18] Speaker 03:
I wish they had.

[02:02:20] Speaker 03:
But what they said is that the former president's claim is give greater weight.

[02:02:25] Speaker 03:
Yes, give greater weight, greater weight.

[02:02:26] Speaker 02:
Right.

[02:02:27] Speaker 03:
Maybe the diminished or something like that.

[02:02:28] Speaker 03:
And I suggest that there's still balancing to be done.

[02:02:31] Speaker 02:
And so and

[02:02:34] Speaker 02:
What?

[02:02:34] Speaker 02:
And there may very well be, Your Honor, in various cases.

[02:02:38] Speaker 02:
Because remember, Nixon versus GSA also was quite different from this case, because it was a broad challenge to a new brand of statute.

[02:02:47] Speaker 02:
In this situation, we have the current president.

[02:02:51] Speaker 02:
In those cases, in that earlier case, it was two former presidents who had said the statute.

[02:02:58] Speaker 03:
So back to my original hypothetical about the avenging one.

[02:03:03] Speaker 03:
So a former president comes into court and says, wait, you're releasing information.

[02:03:11] Speaker 03:
I have in these executive privilege documents the identities of foreign agents, agents of foreign governments who are adversarial foreign governments who are cooperating with us and helping us.

[02:03:26] Speaker 03:
And it's going to get out.

[02:03:27] Speaker 03:
And they're going to die.

[02:03:28] Speaker 03:
And we're going to lose all that information that we need.

[02:03:33] Speaker 03:
Yes, incumbent president, you have made this judgment about the executive branch's interests and the interests of the people of the United States, but, and so I'm lower on the scoreboard or lower on the scales, but I'm coming to tell you there are, you know, there's eight specific things that are so vital and are not reflected in this generalized

[02:04:00] Speaker 03:
assertion of the interests of the people of the United States that have yet to be taken into account that need to be weighed by a court, including people will die.

[02:04:11] Speaker 03:
Will the former president win then?

[02:04:13] Speaker 02:
At least those documents?

[02:04:15] Speaker 02:
I think yes, your honor, that may be a circumstance when the 25th Amendment would suddenly become relevant.

[02:04:22] Speaker 02:
I'm not sure but remember, I'm talking about the balancing the courts doing no no I understand but but but as we know, presidents.

[02:04:32] Speaker 02:
have to make determinations regularly when people will die.

[02:04:36] Speaker 02:
The president is the commander in chief and the president could, you know, a former president decides to send troops to a particular area.

[02:04:46] Speaker 02:
And then the new president, let's say that new president won on the basis, the key issue in the campaign was, I'm bringing the boys home.

[02:04:54] Speaker 02:
boys and girls.

[02:04:56] Speaker 02:
I'm bringing the troops.

[02:04:57] Speaker 02:
Thank you.

[02:04:57] Speaker 02:
I'm sorry, Your Honor.

[02:04:58] Speaker 02:
That was insensitive of me.

[02:05:01] Speaker 02:
I'm bringing the troops home.

[02:05:04] Speaker 02:
And that may mean that people will die.

[02:05:08] Speaker 02:
Nobody would possibly say that the current president is not the one who makes that determination.

[02:05:13] Speaker 03:
As we know- No, I'm only talking about the executive privilege as to documents, right?

[02:05:19] Speaker 02:
Well, documents, records, materials, obviously it can be tapes, et cetera.

[02:05:23] Speaker 02:
Yes, of course.

[02:05:24] Speaker 02:
But again, that's the decision by the current president, except in some,

[02:05:32] Speaker 02:
weird hypotheticals that maybe we can come up with, which is the same, might very well raise questions about the president's sanity or something, but certainly that's nowhere close to anything we've ever faced as a nation.

[02:05:45] Speaker 03:
The former president comes in and says, I beg to differ.

[02:05:52] Speaker 03:
on your judgment about the interests of the American people and the long-term, immediate, short-term, medium, and long-term impact on the executive branch of this sweeping waiver of executive privilege that you're doing.

[02:06:05] Speaker 03:
I think you're very wrong to do it.

[02:06:08] Speaker 03:
You're misguided.

[02:06:09] Speaker 03:
You're doing it for all the wrong political reasons.

[02:06:14] Speaker 03:
You really are going to end up hurting the executive branch, but nothing more particular than that.

[02:06:20] Speaker 03:
That tie under Nixon versus GSA goes to the incumbent president.

[02:06:24] Speaker 02:
Always, always, your honor.

[02:06:27] Speaker 02:
And the one other point I wanted to make about Nixon versus GSA is remember, too, that what that case was about, that was a situation where the, up until then, presidential records belonged with a personal property of the president.

[02:06:47] Speaker 02:
Sadly, many presidents destroyed their records.

[02:06:50] Speaker 02:
And the Supreme Court notes this in the GSA opinion.

[02:06:56] Speaker 02:
Congress then makes a major change and says, we need these records preserved because President Nixon otherwise is going to destroy these records.

[02:07:06] Speaker 02:
And so we are changing things.

[02:07:09] Speaker 02:
And so President Nixon was suing really in his personal capacity saying, no, no, these are my records.

[02:07:16] Speaker 02:
whatever, 180 or 70 degrees years of history show that.

[02:07:25] Speaker 02:
And this is a major change now as we, so his claim was really quite different from now.

[02:07:34] Speaker 08:
Council, I think though that there was a threshold issue that was raised at the Supreme Court decided that impacts how we should interpret

[02:07:47] Speaker 08:
what we're doing here today.

[02:07:50] Speaker 08:
There was a threshold issue made, argument made, that there was no separation of powers concern in Nixon v. GSA because you had bicameralism and presentment

[02:08:06] Speaker 08:
The Congress had passed this bill.

[02:08:08] Speaker 08:
President Ford had signed it.

[02:08:10] Speaker 08:
The incumbent president agreed with Congress on the action that should be taken with respect to these tapes.

[02:08:19] Speaker 08:
And so this didn't really present a separation of powers issue.

[02:08:23] Speaker 08:
And the Supreme Court flatly rejected that and said, it doesn't matter that the incumbent president agreed.

[02:08:33] Speaker 08:
with this action, the former president still has this right to raise executive privilege.

[02:08:41] Speaker 08:
And yes, we say that it gets less weight than the incumbent president's view on executive privilege.

[02:08:51] Speaker 08:
But to resolve the separation of powers concern there, they did a balancing test.

[02:08:59] Speaker 08:
They said, only where the potential for disruption to the executive is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.

[02:09:17] Speaker 08:
It's essentially the same sort of balancing test that was done in US v. Nixon that we did in select committee versus Nixon.

[02:09:27] Speaker 08:
that kind of is the overall kind of like balancing that was done by the Supreme Court in Mazars.

[02:09:37] Speaker 08:
You know, compelling need or the need of Congress, is it sufficient to override the privacy interests, the interests of the executive,

[02:09:54] Speaker 08:
You're saying that we don't do a balancing.

[02:09:56] Speaker 08:
We just say, you know, we weigh the incumbent more.

[02:10:03] Speaker 08:
So what if like there's four former presidents that say, say, these documents should remain privileged, it would be terrible, would destroy the office of the executive.

[02:10:20] Speaker 08:
to waive privilege, but the incumbent says, no, I think that privilege should be waived.

[02:10:29] Speaker 08:
The four former presidents, does that equal one incumbent president?

[02:10:34] Speaker 08:
We don't do a weighing.

[02:10:35] Speaker 08:
I mean, why don't we do a weighing of the interests?

[02:10:39] Speaker 08:
If Nixon VGSA did a weighing of the interests, why don't we do one here?

[02:10:44] Speaker 02:
Because your honor, there's a very key difference.

[02:10:46] Speaker 02:
First of all, the quick answer to the I think it was a rhetorical question, but for and cut for former presidents versus one incumbent.

[02:10:53] Speaker 02:
No, that's easy.

[02:10:54] Speaker 02:
The incumbent obviously wins.

[02:10:56] Speaker 02:
But what you the differences is a very central difference between the Nixon case and this case there.

[02:11:03] Speaker 02:
The president.

[02:11:05] Speaker 02:
The former president was suing and making an executive, making a, as you point out, a separation of powers claim and separately an executive privilege claim.

[02:11:16] Speaker 02:
And the Supreme Court said he loses on the separation of powers claim.

[02:11:21] Speaker 02:
This case, remember, is not about the president making a claim in his personal capacity saying, I own those records.

[02:11:29] Speaker 02:
We know he does not own those records.

[02:11:32] Speaker 02:
And by the way, remember, not only was Nixon making that argument, Nixon turned out to be right because he later obtained compensation from the United States government because he did own those records until Congress changed the law.

[02:11:45] Speaker 02:
Here, Mr. Trump has said absolutely clearly in his brief, he is suing in his official capacity.

[02:11:52] Speaker 08:
But I don't understand what difference that makes.

[02:11:57] Speaker 08:
My point is that the Supreme Court said that this statute raises a separation of powers concern.

[02:12:05] Speaker 08:
Right, and this does not.

[02:12:07] Speaker 08:
President Nixon isn't in office anymore.

[02:12:12] Speaker 02:
This case does not raise a separation of powers.

[02:12:15] Speaker 02:
issue because the president, President Biden, the head, the only head of the executive branch and the legislative branch are in complete agreement here.

[02:12:27] Speaker 02:
So there is no clash.

[02:12:29] Speaker 02:
There is no separation.

[02:12:31] Speaker 08:
That same word was made in Nixon v. GSA.

[02:12:34] Speaker 08:
They said there's no class clash because this statute, which is being challenged as spatially unconstitutional,

[02:12:42] Speaker 08:
was signed by the incumbent president and passed by Congress.

[02:12:46] Speaker 08:
So where's the clash?

[02:12:49] Speaker 02:
The report said there is still a clash.

[02:12:52] Speaker 02:
But again, remember, the clash there was because former President Nixon was saying, those papers are mine.

[02:13:00] Speaker 02:
President Trump is not saying that.

[02:13:02] Speaker 02:
He can't say that.

[02:13:03] Speaker 08:
But the personal, his argument that the papers are mine didn't present a clash between

[02:13:11] Speaker 08:
Congress and the office of the presidency, it presented a clash between his personal property rights and the law.

[02:13:19] Speaker 02:
Right.

[02:13:20] Speaker 02:
And let me, though, if I can just jump to I made the point, we think they are different.

[02:13:28] Speaker 02:
But in any event, hang on on that thing.

[02:13:30] Speaker 03:
Well, before you hang before you in any event us in part as part of the separation of powers analysis,

[02:13:39] Speaker 03:
It's a separation of powers analysis, notwithstanding the views of both President Ford and the Carter administration that defended the law.

[02:13:48] Speaker 03:
It seemed important to them that this law does not make the presidential materials available to the Congress.

[02:13:55] Speaker 03:
That was part, cited as part of their balancing of the separation of powers there.

[02:14:00] Speaker 03:
And this statute quite expressly does.

[02:14:06] Speaker 02:
That's right.

[02:14:07] Speaker 03:
That does not change.

[02:14:09] Speaker 03:
So for some reason they thought we're still going to balance separation of powers, even when the political branches incumbent political branches are in agreement, still going to balance here.

[02:14:19] Speaker 03:
And this time, balance.

[02:14:22] Speaker 03:
There's a different weight on the balancing because this does make documents available to Congress.

[02:14:28] Speaker 02:
Right.

[02:14:28] Speaker 02:
Then the fact that this does make them available to Congress, you're right, is a difference between the two.

[02:14:33] Speaker 02:
The fact remains that the only claim under the statute that the president can raise is his privileges.

[02:14:44] Speaker 02:
And so he can make an executive privilege claim and the current president, so there is no clash here between the branches.

[02:14:55] Speaker 02:
Mr. Trump says, I'm suing in my official capacity.

[02:15:01] Speaker 02:
And what we're saying is you really have basically no official capacity here, except under the statute, you are allowed to make

[02:15:12] Speaker 02:
an executive privilege claim, which again was allowed in Nixon versus GSA.

[02:15:18] Speaker 05:
In Nixon versus GSA, I guess I'm confused by your concession that this wasn't about Congress's needs or interests or whether or not Congress could have access to the documents because I had understood the Supreme Court, at least in part,

[02:15:38] Speaker 05:
uh, stating that adequate justifications were shown for the limited intrusion into executive confidentiality and that among those interests was, uh, Congress's interest in preserving the materials to restore public confidence.

[02:15:55] Speaker 05:
Congress's need to understand how political processes that in fact operated.

[02:16:00] Speaker 05:
And that's why the Supreme Court suggested, at least in this part of the opinion that

[02:16:07] Speaker 05:
The intrusion on confidentiality of the executive was justified because Congress had made the determination that these records needed to be preserved and treated as public records, not private records.

[02:16:26] Speaker 05:
because it may need them to facilitate a full airing of the events leading to his resignation, that there were important governmental and historical reasons for the preservation of the records.

[02:16:39] Speaker 05:
So it seemed to me that the Supreme Court was contemplating that Congress could access these records, the public may access these records, and that's why it was constitutional in the separation of powers balancing to

[02:16:56] Speaker 05:
have a statute that says these records are public records.

[02:17:00] Speaker 05:
They belong to the United States and not to the president.

[02:17:04] Speaker 05:
Am I wrong about that?

[02:17:05] Speaker 05:
I mean, there was a congressional interest in this.

[02:17:07] Speaker 02:
Your honor, you are exactly right.

[02:17:09] Speaker 02:
And Frank, I was about to make that point.

[02:17:11] Speaker 02:
Yes, you're exactly right.

[02:17:12] Speaker 02:
And in fact, let's look at the other highly relevant case here, US versus Nixon.

[02:17:18] Speaker 02:
Mr. Trump here makes the same claim.

[02:17:22] Speaker 02:
Well, US versus Nixon was about simply an in-camera inspection by a judge pursuant to a criminal trial subpoena.

[02:17:30] Speaker 02:
But remember, the whole point of the criminal trial subpoena was the court would then do an in-camera inspection

[02:17:39] Speaker 02:
Which would that could then lead to that it would be publicly disclosed as part of a criminal trial.

[02:17:45] Speaker 02:
So in both us versus the Nixon and in Nixon versus GSA.

[02:17:50] Speaker 02:
Both of those cases had as part of the background that can't be forgotten that it wasn't just about.

[02:17:58] Speaker 02:
disclosure within the executive branch, or disclosure simply to a judge to make a determination based on an in-camera inspection.

[02:18:10] Speaker 02:
It was about something much larger than that, as you have correctly pointed out.

[02:18:17] Speaker 02:
All I was gonna do, Judge Malletta is saying, make these points, but in any event, we and President Biden here win anyway.

[02:18:26] Speaker 02:
If you're gonna do any kind of balancing,

[02:18:30] Speaker 02:
The balance is the interest of the executive branch versus the interest of the legislative branch.

[02:18:37] Speaker 02:
And that's where I come back to and I will not be shaken from.

[02:18:42] Speaker 02:
There is no clash here between the branches.

[02:18:45] Speaker 02:
The president has made a decision that he explained about the important interests of the American people in having the select committee get to the truth here.

[02:18:58] Speaker 02:
And so the president is completely in agreement with Congress in this situation.

[02:19:05] Speaker 08:
So there simply is no separation of powers claim that a former president can make that could... But as part of evaluating the executive privilege, whether it is overridden, you typically do a balancing.

[02:19:24] Speaker 08:
just as was done in Nixon VGSA, that's what we did in Senate Select Committee.

[02:19:29] Speaker 08:
And when you do a balancing, you weigh considerations such as the scope of the requests, the necessity of the information, and indeed, because of ruling by our court, that there wasn't a necessity for the records

[02:19:53] Speaker 08:
The court upheld the executive privilege claim and since Senate Select Committee, right.

[02:20:00] Speaker 08:
If we if we start doing the balancing test don't we have to consider things like that scope of the request and necessity burden.

[02:20:12] Speaker 08:
et cetera.

[02:20:13] Speaker 02:
Your honor, remember, in Senate select committee was completely different.

[02:20:17] Speaker 02:
It was a sitting president.

[02:20:18] Speaker 02:
There was a clash between the branches.

[02:20:21] Speaker 02:
There was a separation of powers issue.

[02:20:23] Speaker 02:
There is none here.

[02:20:25] Speaker 02:
And so no, the I don't understand your argument, counsel.

[02:20:30] Speaker 08:
You're saying that that that if a

[02:20:35] Speaker 08:
former president raises executive privilege, you don't do a balancing test.

[02:20:41] Speaker 08:
But if an incumbent president raises executive privilege, you do do a balancing test.

[02:20:46] Speaker 02:
That's exactly right, Your Honor.

[02:20:49] Speaker 02:
And here's why that makes perfect sense under Supreme Court doctrine.

[02:20:53] Speaker 02:
Because we have one president, that one president is in charge of the executive branch.

[02:21:00] Speaker 02:
That one president, that president has done the balancing.

[02:21:04] Speaker 02:
It's up to that president to make the balance that president has made the balance.

[02:21:10] Speaker 02:
And he said part of what he said is the need here is is extremely pressing.

[02:21:16] Speaker 02:
It's so great.

[02:21:18] Speaker 02:
that this executive privilege is not appropriate here.

[02:21:22] Speaker 02:
As far as separation of powers, I'm going to say it one more time.

[02:21:26] Speaker 02:
Senate Select Committee is a completely different case.

[02:21:29] Speaker 02:
Just as Mazar's is a completely different case.

[02:21:33] Speaker 08:
There is no separation of different case because that involved a former president.

[02:21:38] Speaker 08:
I'm sorry, which did?

[02:21:39] Speaker 08:
Nixon VGSA involved a former president and they said there is a separation of powers concerned here.

[02:21:48] Speaker 02:
But again, they allowed, they recognized President, they dealt with President Nixon's argument, and what I'm suggesting is it was in a different context, especially because remember,

[02:22:02] Speaker 02:
Here we have the incumbent president has actually looked at the documents and done the balancing.

[02:22:11] Speaker 02:
This isn't a claim, a constitutional claim, facially against a brand new statute.

[02:22:19] Speaker 02:
This is about specific documents in a specific context.

[02:22:23] Speaker 05:
So Mr. Latter, at a minimum, even if you're right or Judge Wilkins is right,

[02:22:32] Speaker 05:
that, nevertheless, there's some balancing for the court to do in a situation like this.

[02:22:40] Speaker 05:
You say the incumbent president himself in a situation that we are in has done the balancing of the various factors that we would ordinarily do

[02:22:53] Speaker 05:
if it was actually a dispute between the legislature and the executive.

[02:22:58] Speaker 05:
So he's done it in this situation and he agrees with the legislature.

[02:23:02] Speaker 05:
So you say that should be enough.

[02:23:05] Speaker 05:
If Judge Wilkins is right that there's still something left for the court to do, at a minimum, would you say that we should give some deference to the incumbents determination of this?

[02:23:19] Speaker 05:
Even if he doesn't get to win it,

[02:23:21] Speaker 05:
right?

[02:23:22] Speaker 05:
Are we talking about, you know, either we have to give it all to the incumbent and we don't do any balancing, or I suppose there's a world in which we could say, okay, the court still has a role to play here in this current circumstance, but they have to give some deference, if not great deference, to the incumbent's determination of the balance.

[02:23:45] Speaker 02:
Yes, Your Honor, and indeed, I'm trying to think of what the court order would be like.

[02:23:51] Speaker 02:
In this case, the court would say, No, we know better than president, the current president does.

[02:24:01] Speaker 02:
that Congress is not entitled to this material.

[02:24:04] Speaker 02:
I don't know what the why would be.

[02:24:06] Speaker 02:
I think all you could do is say because the presidents, there's a strong interest in the presidency in confidentiality and having presidential advisors being able to give clear advice.

[02:24:19] Speaker 02:
When the current president has said that's outweighed here, and remember,

[02:24:24] Speaker 02:
That really is about the only argument they're making.

[02:24:27] Speaker 02:
And remember a very key point, Nixon versus GSA, U.S.

[02:24:31] Speaker 02:
versus Nixon and the practice of I think almost every modern president is they have disclosed to Congress and the public the advice they have gotten from high level officials in the White House.

[02:24:49] Speaker 03:
They haven't, I'm sorry, go ahead, Judge Wilk.

[02:24:52] Speaker 08:
The counsel, you would concede

[02:24:54] Speaker 08:
that in any kind of clash between Congress and the president, where the president has invoked privilege and Congress was saying, we should get these documents, not withstanding the executive privilege because our need outweighs the interests of the executive.

[02:25:19] Speaker 08:
And you came to court,

[02:25:21] Speaker 08:
you would want us to overrule the incumbent executive's determination about the interests of the executive there so that you could get the documents, right?

[02:25:31] Speaker 08:
Exactly as US versus Nixon.

[02:25:33] Speaker 08:
You would do exactly what she said.

[02:25:34] Speaker 08:
So you're saying that the court can overrule the incumbent president to give Congress documents, but the court can't overrule the incumbent president to say that Congress can't get documents.

[02:25:47] Speaker 08:
You want a one-way ratchet.

[02:25:49] Speaker 02:
Yes, Your Honor, because, again, remember, this is so essential.

[02:25:54] Speaker 02:
I cannot emphasize this enough.

[02:25:58] Speaker 02:
Remember that we're dealing with a question of are the branches in conflict with each other?

[02:26:05] Speaker 02:
In this case, the branches are not in conflict with each other.

[02:26:10] Speaker 02:
When the branches are not in conflict with each other, there is

[02:26:15] Speaker 02:
nothing really for this court to do as far as separation powers.

[02:26:19] Speaker 08:
If the president... The former president representing at least, you know, having some standing to speak up for the executive branch does say that there's a conflict.

[02:26:35] Speaker 02:
And no, no, no, he can't say there's a conflict.

[02:26:39] Speaker 02:
He can say,

[02:26:40] Speaker 02:
President Biden is wrong.

[02:26:42] Speaker 02:
President Biden doesn't know what he's doing.

[02:26:44] Speaker 02:
And so I want a court to tell President Biden, you are so far wrong.

[02:26:51] Speaker 02:
that this requires the Article III branch to step in and override both the Article I branch and the Article II branch.

[02:27:01] Speaker 02:
I find it very difficult to come up with, as we talked before, of a hypothetical that is anywhere close to realistic when this quarter, any court, would feel that it was appropriate to do that.

[02:27:15] Speaker 08:
Even if you had four former presidents, you would still say,

[02:27:21] Speaker 08:
they don't, the court could never find that they might have a better understanding or their views should merit more weight than the one incumbent president.

[02:27:35] Speaker 02:
Oh, obviously, your honor, because the only the current president knows

[02:27:40] Speaker 02:
the situation, only the current president knows what is in the national security interests of the United States.

[02:27:47] Speaker 02:
Former presidents have no special knowledge.

[02:27:51] Speaker 02:
As I started out with, Chief Justice Marshall said, they go back to the private sector.

[02:27:56] Speaker 08:
Well, I don't know why Nixon v. GSA was written the way that it was, why Public Citizen v. Burke was written the way that it was, why Nixon v. Freeman from our circuit was written the way that it was.

[02:28:09] Speaker 08:
because it might as well just say, you know, whatever the incumbent president says goes, and the former president's views have no weight.

[02:28:19] Speaker 02:
As we've been discussing, we probably can come up with some hypotheticals where the former president's views would have weight.

[02:28:29] Speaker 02:
We probably can.

[02:28:31] Speaker 02:
I'm not aware of any that are realistic.

[02:28:34] Speaker 02:
And, and it seems to me that therefore, and I'm fairly sure that you're going to hear the exact same thing from Mr Boynton.

[02:28:42] Speaker 02:
Therefore, there is no clash between the branches when there is no clash between the branches and no private interest.

[02:28:52] Speaker 02:
Remember, Nixon versus GSA, there was a private interest.

[02:28:56] Speaker 02:
In this case, Mr. Trump has said, I'm suing merely in an official capacity.

[02:29:01] Speaker 02:
So this isn't a question where the president and the Congress are getting together and ganging up on some private rights.

[02:29:09] Speaker 02:
So under those circumstances, this is not, there is, it would be astonishing

[02:29:16] Speaker 02:
for this court to override the current president and Congress.

[02:29:21] Speaker 02:
And I don't think that the Freeman case or the Burke case are in any way inconsistent with this.

[02:29:30] Speaker 02:
Those were cases involving what was to be done, how the former president's records were to be dealt with, what standards were to be applied within the executive branch.

[02:29:45] Speaker 02:
and private parties then were suing about that and arguing what should happen.

[02:29:51] Speaker 02:
And if I recall correctly, Nixon versus Freeman was about the very thing I was talking about before.

[02:29:56] Speaker 02:
President Nixon actually did have a private interest, and he got many millions of dollars from the United States government.

[02:30:04] Speaker 02:
But that has nothing to do with what we are talking about in this case.

[02:30:09] Speaker 02:
And obviously, in order to affirm

[02:30:12] Speaker 02:
the judgment below, this court does not have to say there are no circumstances we can conceive of when the former president might prevail.

[02:30:21] Speaker 02:
You don't have to do that.

[02:30:23] Speaker 02:
The key is here, did Judge Chutkin reach the correct results?

[02:30:28] Speaker 02:
And under the facts of this case, it seems to me that is indisputable.

[02:30:34] Speaker 02:
I had some notes here about some of the other questions that

[02:30:41] Speaker 02:
that were asked, if you give me a second, I just want to skim them to say, oh, I'm sorry, Judge Wilkins, you had asked my friend about

[02:30:53] Speaker 02:
Would there be a situation when the court could issue a protective order that would bind Congress as far as what it could do with the documents?

[02:31:02] Speaker 02:
This, as we cited in our brief, this circuit's precedent, Hearst versus Black, says that you cannot.

[02:31:08] Speaker 02:
Under separation powers, there is no Article 3 power for you to issue an injunction like that to Congress.

[02:31:14] Speaker 02:
So that's the law of the circuit.

[02:31:18] Speaker 03:
No, but if there's an injunction, if the injunction is the archivist to give it provided to a committee on these terms.

[02:31:25] Speaker 02:
Right, that that injunction wouldn't bind Congress then I'm not.

[02:31:30] Speaker 03:
That's not my question.

[02:31:31] Speaker 02:
I'm sorry.

[02:31:31] Speaker 03:
Yes, sorry junction would bind the person named it at the archives.

[02:31:37] Speaker 03:
What is, uh, are there rules, uh, within the house or for the committee, um, that would, maybe they can't be enforced in litigation because of the speech and debate clause, but other internal rules would be internally enforced.

[02:31:53] Speaker 03:
Um, that would give weight to that confidentiality agreement.

[02:31:59] Speaker 02:
Um, different.

[02:32:01] Speaker 02:
committees have different rules, Your Honor, about confidentiality.

[02:32:06] Speaker 03:
What does the select committee have?

[02:32:09] Speaker 02:
My understanding is the select committee has no rules about this on its own.

[02:32:14] Speaker 02:
The select committee is governed by the rules of the House.

[02:32:18] Speaker 02:
The rules of the House provide that records of a committee belong to the committee and they belong to the House.

[02:32:28] Speaker 02:
So the House could decide voluntarily if the archivist sent the records to Congress and said, I really, really hope you don't publicly disclose these.

[02:32:42] Speaker 02:
Congress, the House could make a determination of whether to abide by that or not, but that would be a decision by the House.

[02:32:51] Speaker 02:
I'm not aware that there's any rule that would govern what the select committee would do.

[02:32:57] Speaker 03:
Let's not have the archivist just say pretty please.

[02:33:00] Speaker 03:
Let's say the incumbent president's decision says, I'm making this decision based on

[02:33:10] Speaker 03:
accommodation between the branches.

[02:33:12] Speaker 03:
We've worked through this.

[02:33:13] Speaker 03:
We've had an agreement, and it is being provided subject to promises of confidentiality by the committee.

[02:33:25] Speaker 03:
And it's by the committee as an entity and each of its members.

[02:33:30] Speaker 02:
And, Your Honor, I think it is extremely likely that when accommodations like that are reached, Congress will abide by them.

[02:33:40] Speaker 02:
the president, neither the president nor the courts have any authority under the separation of powers to issue any kind of binding decision rule on Congress.

[02:33:50] Speaker 03:
I'm just asking what would happen in practice.

[02:33:51] Speaker 03:
In practice, would there be consequences if a member then breached that agreement?

[02:33:56] Speaker 03:
Would there be consequences for that member?

[02:33:58] Speaker 02:
There could be consequences, yes.

[02:34:00] Speaker 02:
Remember that the speech or debate clause does not apply to Congress itself.

[02:34:06] Speaker 02:
So Congress could discipline

[02:34:08] Speaker 02:
a member who violates House rules about confidentiality.

[02:34:14] Speaker 04:
That's essentially what I was getting at.

[02:34:18] Speaker 08:
Yeah, you can't issue a protective order that binds Congress, but you can issue a protective order that says that the archivist can't disclose this to Congress unless and until there's an agreement about confidentiality that says X.

[02:34:36] Speaker 08:
And then maybe it can't be enforced in court, but just like any member of Congress can't take like some classified document that they got in the Intelligence Committee and decide to go out on the House floor and disclose that document because they think that the American people need to know it and do that kind of without any consequence, you could construct a scenario here

[02:35:06] Speaker 08:
that would protect these documents in a similar fashion, couldn't you?

[02:35:13] Speaker 02:
Your Honor, I have to answer yes or no and say you could construct something like that and you presume, right under law, you presume that Congress acts in good faith and therefore it is, I would think, extremely likely that that agreement will be

[02:35:32] Speaker 02:
followed.

[02:35:34] Speaker 02:
If an individual member of Congress chooses to act in a renegade manner.

[02:35:40] Speaker 02:
As you know, there's nothing that the courts or the president can do about that that's the framers made that decision that's that's binding.

[02:35:50] Speaker 02:
Congress could discipline such a member.

[02:35:53] Speaker 02:
And so that is a way that Congress has of enforcing something like that.

[02:35:59] Speaker 02:
But I don't want to mislead you.

[02:36:01] Speaker 08:
Understood.

[02:36:01] Speaker 08:
But my point is that it's not inconceivable that the court could order

[02:36:11] Speaker 08:
terms of the disclosure by the archivists that would have some practical effect, even if they couldn't be enforced by contempt against Congress, but assuming that everybody is acting in good faith and abides by their agreements and isn't going to, you know, flout the law or the spirit of the agreement,

[02:36:35] Speaker 08:
that the court could place some limitations, one, the disclosure by the archivist that would, you know, likely or more than likely ensure

[02:36:51] Speaker 08:
some restrictions in confidentiality, right?

[02:36:55] Speaker 02:
Exactly.

[02:36:56] Speaker 02:
The way you framed it just then is key.

[02:36:59] Speaker 02:
And so, yes, I can agree with you on that.

[02:37:02] Speaker 02:
But remember, we're talking about a practical world here.

[02:37:05] Speaker 02:
The select committee, when it gets the material, it has to do something.

[02:37:10] Speaker 02:
It has to use these materials.

[02:37:11] Speaker 02:
That's the whole point of why these are being asked for.

[02:37:14] Speaker 02:
So the select committee would be looking at the materials.

[02:37:17] Speaker 02:
Their staff would be looking at the materials.

[02:37:20] Speaker 02:
Remember that that the select committee then is is making all sorts of recommendations to Congress as a whole, etc.

[02:37:27] Speaker 08:
But again, and I think our point with your friend on the other side just to kind of bring this to a close in the interest of time was that they never made any such request anyway, right, we don't.

[02:37:39] Speaker 08:
That issue isn't before us because they didn't ask for that limitation and say they would be fine with disclosure with that limitation or any other limitation.

[02:37:49] Speaker 08:
They just raised a broader objection to disclosure to Congress, right?

[02:37:56] Speaker 02:
That's exactly correct, Judge Wilkins.

[02:37:57] Speaker 02:
You're 100% right on that.

[02:37:59] Speaker 05:
Mr. Latter, in the interest of time, I actually have two just sort of quick other points if my colleagues will indulge them, which is,

[02:38:08] Speaker 05:
I'm trying to understand whether all of the PI factors at issue here actually turn on the likelihood of success on the merits.

[02:38:17] Speaker 05:
So that if we disagree with the former president's claim that he will win on the merits, does he necessarily lose the irreparable harm point because he's saying that he'll be harmed by the confidential nature

[02:38:36] Speaker 05:
by the release of confidential documents, but the merits is the determination about whether or not he has the right to withhold them.

[02:38:43] Speaker 05:
And then what about the public interest and, you know, the balancing of the equities here?

[02:38:51] Speaker 05:
If he can't succeed, does he necessarily lose on that as well?

[02:38:57] Speaker 02:
That's exactly your honor.

[02:38:58] Speaker 02:
I think your observations here are very perceptive.

[02:39:01] Speaker 02:
Yes, in determining the merits there, I believe you would automatically then have ruled on those other two factors.

[02:39:10] Speaker 02:
As you know, the Supreme Court and this court have said the public interest prong, it applies in a special way when you're dealing with the government, which we are dealing with here.

[02:39:23] Speaker 02:
in two branches.

[02:39:25] Speaker 02:
And yes, in order to have ruled that there was no likelihood or little likelihood of success, you would have held that there isn't an injury here to Mr. Trump, because that's not what executive privilege is not for Mr. Trump, it's for the presidency.

[02:39:44] Speaker 05:
All right.

[02:39:45] Speaker 05:
And then my only other question is about remedy.

[02:39:47] Speaker 05:
So if we were to affirm the district court's denial,

[02:39:52] Speaker 05:
I would think that the reasons for our administrative injunction preserving our jurisdiction would be resolved and there wouldn't be any present need from our perspective, jurisdictional perspective to maintain that temporary hold.

[02:40:12] Speaker 05:
So would we dissolve that injunction at that point?

[02:40:16] Speaker 05:
Would the records be released immediately?

[02:40:18] Speaker 05:
Should there be some consideration given to

[02:40:22] Speaker 05:
the right of the former president under that hypothetical situation for further review or how should we think about that.

[02:40:31] Speaker 02:
Your honor you.

[02:40:32] Speaker 02:
Yes, you would dissolve the injunction.

[02:40:35] Speaker 02:
On this, I think this question has to be asked to Mr. Boynton because as you know, the records are in the possession of the executive branch.

[02:40:46] Speaker 02:
We think that the stay or injunction pending appeal should be dissolved and that the records can and should be turned over immediately.

[02:40:55] Speaker 02:
But as I say, we don't have the records.

[02:40:58] Speaker 02:
And I'm going to definitely be quiet in a second.

[02:41:01] Speaker 02:
I just want to point out one other thing unless the court has other questions.

[02:41:05] Speaker 02:
There was talk about accommodations.

[02:41:07] Speaker 02:
Remember that in the LASTER declaration, Joint Appendix, page 128, paragraph 25, he points out that there have been accommodations that are already being made between the executive branch and the legislative branch.

[02:41:24] Speaker 02:
And so that is the requirement.

[02:41:26] Speaker 03:
There was a deferral request.

[02:41:28] Speaker 03:
What does the deferral of a request mean?

[02:41:30] Speaker 02:
It meant that

[02:41:33] Speaker 02:
As you know, there are many, many records involved here.

[02:41:37] Speaker 02:
The archivist has agreed to examine them and turn over records on a rolling basis.

[02:41:44] Speaker 02:
So what the archivist suggested was that on certain records, we could defer them so that that wouldn't get in the way of the archivist and the White House performing its function.

[02:41:57] Speaker 03:
I'm going back to where I started.

[02:42:00] Speaker 03:
What does defer mean?

[02:42:01] Speaker 03:
I take it that means the committee hasn't chosen not to pursue that claim or is it withdrawing as to those documents?

[02:42:08] Speaker 03:
No, there's no withdrawal.

[02:42:11] Speaker 02:
The what you just said.

[02:42:14] Speaker 02:
Yes, we're not.

[02:42:15] Speaker 02:
We're not.

[02:42:15] Speaker 02:
We're not withdrawing.

[02:42:17] Speaker 02:
We're saying, yes, those are put aside.

[02:42:20] Speaker 02:
So by agreement of the two branches, those are put aside.

[02:42:23] Speaker 02:
And it may very well be.

[02:42:25] Speaker 02:
Exactly.

[02:42:26] Speaker 02:
Yes, your honor.

[02:42:27] Speaker 02:
And it may be that that is permanent.

[02:42:29] Speaker 02:
Then when after this litigation is over, after the archivist has has for the president, Biden may not push come to shove.

[02:42:39] Speaker 03:
may decide to assert privileges to those.

[02:42:42] Speaker 02:
That can happen in any moment.

[02:42:44] Speaker 02:
Exactly, Your Honor.

[02:42:45] Speaker 02:
That can happen in any moment.

[02:42:46] Speaker 03:
Deferral reserves the ability to, I guess I should ask Mr. Boynton or he can tell me if I'm wrong, but deferral at this point certainly reserves the ability of the president, Biden, to assert privileges to those.

[02:42:56] Speaker 02:
Absolutely.

[02:42:57] Speaker 05:
So should we be concerned as a practical matter about the court sort of interfering with this process of

[02:43:06] Speaker 05:
release and accommodation that is ongoing?

[02:43:09] Speaker 05:
I mean, is there some aspect of this that is kind of akin to, you know, do we have a final order?

[02:43:16] Speaker 05:
Are we in a place where the court can review privilege in a meaningful way without interfering with the processes that are ongoing in the negotiations between the legislative and the executive

[02:43:33] Speaker 02:
Absolutely, Your Honor, and I believe Your Honor is very familiar with the Supreme Court decision in Eastland where the Supreme Court made clear.

[02:43:43] Speaker 02:
that the courts are to be extremely wary of issuing injunctions that interfere with an ongoing congressional investigation for legislative purposes.

[02:43:53] Speaker 02:
So yes, that's why we hope that this court will rule very expeditiously and will affirm Judge Chuckin and vacate the existing injunction because

[02:44:09] Speaker 02:
This is interfering with something that is going on right now with immense speed.

[02:44:16] Speaker 02:
And these are key documents, as President Biden recognized, these are key documents that the Congress should have and they should have them right now.

[02:44:24] Speaker 03:
The committee have a sort of may not have a formal time table, but a sense of when it needs to at least issue maybe a first report on this to allow legislation before the next election.

[02:44:36] Speaker 03:
I'm just trying to get a sense of the compressed time frame here.

[02:44:39] Speaker 02:
I have not heard Chairman Thompson or Vice Chair Cheney give any kind of dates.

[02:44:51] Speaker 02:
So I'm not aware of anything that I would feel comfortable saying to the court as far as timing.

[02:44:59] Speaker 02:
They're moving at breakneck speed.

[02:45:01] Speaker 02:
Thanksgiving has not slowed us down at all, sadly.

[02:45:05] Speaker 02:
And so the select committee is moving very, very rapidly.

[02:45:11] Speaker 02:
So no, to my knowledge, I'm not aware of any time guidelines, et cetera, that the chairman has announced.

[02:45:21] Speaker 03:
Do my colleagues have further questions?

[02:45:24] Speaker 03:
All right, thank you, Mr. Leder.

[02:45:25] Speaker 03:
We're just under an hour on you.

[02:45:27] Speaker 03:
So thank you for your time.

[02:45:30] Speaker 03:
Mr. Boynton, I hope you didn't make lunch plans.

[02:45:34] Speaker 01:
Thank you, Your Honor.

[02:45:36] Speaker 01:
I did not make any lunch plans.

[02:45:38] Speaker 03:
I apologize for the delay.

[02:45:41] Speaker 01:
No problem.

[02:45:41] Speaker 01:
I'm happy to launch right into things here.

[02:45:43] Speaker 01:
If the court wants to take a quick break, that's OK, too.

[02:45:47] Speaker 01:
However you prefer.

[02:45:48] Speaker 03:
I'm ready to proceed.

[02:45:49] Speaker 03:
Are my colleagues ready to proceed?

[02:45:52] Speaker 01:
Yeah.

[02:45:53] Speaker 03:
That's fine.

[02:45:55] Speaker 01:
Excellent.

[02:45:56] Speaker 01:
May it please the court, Brian Boynton from the Department of Justice.

[02:46:01] Speaker 01:
In light of the extraordinary events on January 6th and those surrounding it, President Biden made an affirmative determination that it would not be in the best interests of the United States to assert privilege with respect to the documents that are at issue here.

[02:46:16] Speaker 03:
That decision... Would it be clear the documents at issue here are the first three tranches?

[02:46:20] Speaker 01:
That's correct, your honor.

[02:46:21] Speaker 01:
That's all the dead issue in this PI.

[02:46:24] Speaker 01:
And that's what we're here talking about.

[02:46:26] Speaker 01:
There will be more tranches to come.

[02:46:28] Speaker 01:
And those will be reviewed by the administration carefully.

[02:46:34] Speaker 01:
And determinations will be made then about whether or not to assert privilege.

[02:46:38] Speaker 01:
The accommodations process will occur.

[02:46:41] Speaker 01:
It has already been occurring.

[02:46:43] Speaker 01:
And it will continue.

[02:46:45] Speaker 01:
There's every reason to think that some of the requests will be narrowed and that there may well be some assertions of privilege down the road.

[02:46:53] Speaker 01:
But at this point.

[02:46:55] Speaker 03:
And you retain the ability to assert, I just want to confirm that I'm correct in understanding that as to the documents that have already, there's already been a deferral on that preserves President Biden's ability to assert executive privilege at a later point.

[02:47:10] Speaker 01:
That's correct.

[02:47:11] Speaker 01:
That deferral was part of the accommodation process.

[02:47:13] Speaker 01:
It means the documents have been tabled.

[02:47:16] Speaker 01:
At some point, the committee could decide to withdraw the request.

[02:47:19] Speaker 01:
The administration could decide to assert privilege.

[02:47:21] Speaker 01:
No decision has been made yet.

[02:47:24] Speaker 01:
But with respect to the documents that are at issue here, where President Biden has made an affirmative determination that it would be in the best interest of the United States not to assert privilege,

[02:47:36] Speaker 01:
This really should be a straightforward case.

[02:47:39] Speaker 01:
There are lots of difficult issues that we've discussed and will discuss further, I'm sure.

[02:47:44] Speaker 01:
But in the circumstances of this case, given the greater weight that is owed to the incumbent president's determination, President Biden's decision not to assert privilege was eminently reasonable and ought to be controlled.

[02:48:02] Speaker 01:
The court has asked some questions about your decision.

[02:48:05] Speaker 03:
I don't mean to probe in a way that's inappropriate, but the former president raises concerns about the breadth of this request.

[02:48:15] Speaker 03:
And that, you know, it's the first three tranches seem pretty closely tied to January six and events between the election and January six itself.

[02:48:27] Speaker 03:
But that's certainly not the reach.

[02:48:29] Speaker 03:
of this congressional process.

[02:48:30] Speaker 03:
It is much, much broader and going all the way back to April 2020.

[02:48:36] Speaker 03:
In making decisions on executive privilege, does the president include in that a judgment about

[02:48:47] Speaker 03:
the sort of statutory factors that are referenced in 2205 the congressional need and the availability of alternative documents or is that something.

[02:48:59] Speaker 03:
The President, I guess, just leaves the archivist.

[02:49:05] Speaker 01:
Your honor, those same criteria in the statute track the kinds of things you would look at generally in assessing whether Congress has authority to make a request to the executive branch and the kinds of things that the executive branch would normally consider as part of the accommodations process.

[02:49:23] Speaker 01:
And so, yes, those are factors that will be considered

[02:49:28] Speaker 01:
in the ongoing discussions, you know, but is there a need for these documents?

[02:49:32] Speaker 03:
Were they considered in the decisions already made as to the first three tranches not to, if you can say, were they considered in determining not to exercise, invoke executive privileges to the first three tranches?

[02:49:48] Speaker 01:
What I can tell you is that the documents were carefully reviewed by the White House as reflected in the White House Council's letter.

[02:50:00] Speaker 01:
A determination was made that Congress had a compelling need for these particular documents that are at issue.

[02:50:08] Speaker 01:
And so, yes, there has been a determination about the needs for these particular documents.

[02:50:13] Speaker 03:
But what about the second part?

[02:50:15] Speaker 03:
I'm sorry, go ahead.

[02:50:16] Speaker 08:
But I thought that your brief was saying that kind of like a broader determination had been made by President Biden, which was that executive privilege was not going to be asserted for anything that fell within the scope of these requests, not just the first three tranches.

[02:50:40] Speaker 08:
Did I misread that?

[02:50:43] Speaker 01:
Your Honor, so far the determinations that have been made to date relate to the particular tranches of documents at issue.

[02:50:52] Speaker 01:
There has not been a determination that every document that falls within the breadth of the request would be disclosed or they would be in the interest of the United States not to assert privilege with respect to that broader set of documents.

[02:51:07] Speaker 01:
Those are determinations that will be made down the road.

[02:51:12] Speaker 03:
What about the second statutory factor on alternative sources?

[02:51:19] Speaker 01:
Your honor, that is something that generally is considered as part of the accommodations process.

[02:51:24] Speaker 01:
There have not been any arguments that I'm aware of that the particular documents at issue in these first three tranches are ones that are readily obtainable from some other source.

[02:51:36] Speaker 01:
The former president in his brief makes arguments generally about the availability of documents from other sources, but does not make any particularized arguments about the documents at issue in these first three tranches.

[02:51:48] Speaker 01:
down the road in future tranches if there are arguments about the availability of documents from other places.

[02:51:54] Speaker 01:
Yes, those are things that would be considered.

[02:52:00] Speaker 01:
I'm happy to continue along these lines.

[02:52:02] Speaker 01:
I'm also happy to discuss the jurisdictional and cause of action questions and then return to the executive privilege questions.

[02:52:09] Speaker 01:
However, the court would like to proceed.

[02:52:12] Speaker 03:
I'm going to ask you the same question I've asked everyone else and that is,

[02:52:18] Speaker 03:
What is the position of the executive branch with the United States government on?

[02:52:26] Speaker 03:
What courts are supposed to do if, assuming the statutory criteria are found to have been satisfied, at least as to these tranches?

[02:52:37] Speaker 03:
And we are left with the decision of the incumbent president that executive privilege is not warranted in this case, which Nixon versus GSA says

[02:52:49] Speaker 03:
And a minimum gets more points on the scoreboard.

[02:52:53] Speaker 03:
On the other hand, we have Nixon, who just talks about executive privilege.

[02:52:59] Speaker 03:
It diminishes over time.

[02:53:00] Speaker 03:
But this one is pretty quickly on the heels of former President Trump leaving office.

[02:53:08] Speaker 03:
So I think on his side of the scale, although they have not argued this point, on his side of the scale, the recency of it has to count

[02:53:17] Speaker 03:
for something on the nature of his interests.

[02:53:22] Speaker 03:
And so one, what is the legal test we should apply?

[02:53:26] Speaker 03:
Is it just the same balancing test we would do for Congress versus an incumbent president?

[02:53:32] Speaker 03:
And two, in whatever that test is, can you include what weight, deference, treatment, extra points is accorded to the incumbent president's decision?

[02:53:45] Speaker 01:
Yes, Your Honor.

[02:53:47] Speaker 01:
So let me start first by saying we don't think it's the same test that applies when an incumbent is asserting executive privilege.

[02:53:55] Speaker 01:
This is a unique situation.

[02:53:57] Speaker 01:
We're not aware of any case that has dealt with a situation where a former president has asserted privilege and the incumbent president has made an affirmative determination not to assert privilege.

[02:54:07] Speaker 01:
This is different from Nixon versus GSA for the reasons

[02:54:10] Speaker 01:
that have been discussed.

[02:54:11] Speaker 01:
In that case, President Carter was defending the constitutionality of the statute and the general scheme, but there was no individualized evaluation with respect to particular documents.

[02:54:21] Speaker 01:
So therefore, there's no test existent in the case law for how to deal with this situation.

[02:54:27] Speaker 01:
Nixon versus GSA lays out a whole bunch of reasons why the incumbents views ought to be given greater weight.

[02:54:34] Speaker 01:
The DC Circuit said the same thing in the Dellums case.

[02:54:39] Speaker 01:
One, this is a privilege that is held by the Republic, not by an individual.

[02:54:44] Speaker 01:
Two, the incumbent is in the best

[02:54:46] Speaker 01:
position to evaluate the cost and benefits of asserting privilege.

[02:54:50] Speaker 01:
Three, if there's a decision made not to assert privilege, the burdens of that fall on the incumbent.

[02:54:56] Speaker 01:
Four, the incumbent is the only politically accountable actor.

[02:55:01] Speaker 01:
And then fifth, it's the incumbent that is exercising the duties of the presidency.

[02:55:06] Speaker 01:
And in no other respect, this was discussed earlier, no other respect that we're aware of does a former president

[02:55:12] Speaker 01:
have the ability to block something the current president wants to do.

[02:55:15] Speaker 01:
The current president could decide to declassify information his predecessor had classified, withdraw state secrets privilege, withdraw from an executive agreement.

[02:55:24] Speaker 01:
It would be extraordinary in any of those circumstances to think that a former president could say, no, no, you cannot do that.

[02:55:32] Speaker 05:
So we think that whatever Mr Boynton, does that mean with all of those considerations taken into account, those aren't really particular to this set of records or this circumstance.

[02:55:44] Speaker 05:
They seem to suggest that in every situation, the incumbent would win.

[02:55:50] Speaker 05:
And is that your view?

[02:55:53] Speaker 05:
So we come to court, assuming the president, the former president has the right to bring an action saying my view is different

[02:56:01] Speaker 05:
than the incumbent presidents with respect to the exercise of executive privilege.

[02:56:07] Speaker 05:
Are you saying there really is no test to be applied in that circumstance?

[02:56:12] Speaker 05:
The court, based on the factors that you just articulated, says incumbent view wins.

[02:56:20] Speaker 01:
It may well be the case that the incumbent

[02:56:23] Speaker 01:
is going to win most of the time, perhaps all of the time.

[02:56:28] Speaker 01:
We don't think this court should make that determination.

[02:56:31] Speaker 01:
We don't think you need to or should issue a ruling that says the incumbent always wins because this is an unsettled area of the law and there's no need to reach that conclusion here.

[02:56:43] Speaker 01:
We think instead- What test did we apply?

[02:56:46] Speaker 03:
I'm back to where I started.

[02:56:47] Speaker 03:
So what test do you recommend we apply?

[02:56:49] Speaker 01:
I recommend that the court review deferentially the incumbents decision that it is in the interest of the United States, not to assert privilege.

[02:57:00] Speaker 01:
I think that would be an appropriate test if the court were to determine that some tests had to apply here.

[02:57:06] Speaker 03:
And that would mean- Reviewing the decision like an APA type review, the difference we're going to look and we're going to say, does this make sense to us?

[02:57:17] Speaker 03:
Or do we take that as a given and that judgment as a given, and then we just balance to see what's on the other side of the scales?

[02:57:24] Speaker 03:
Those are two different ways of analyzing this.

[02:57:27] Speaker 01:
I agree, Your Honor.

[02:57:28] Speaker 01:
And I don't think this would be like the APA.

[02:57:30] Speaker 01:
This is a very different context here.

[02:57:33] Speaker 01:
I think if there is any kind of review a court would engage in, it would have to be a highly deferential review that asks whether the decision

[02:57:44] Speaker 01:
could be objectively rational.

[02:57:48] Speaker 01:
It wouldn't be any inquiry into particular motivations.

[02:57:52] Speaker 01:
I don't think a court is in a position to do that.

[02:57:55] Speaker 01:
And it can't simply be some kind of de novo assessment of whether the court believes it's in the interest of the United States to disclose these documents.

[02:58:04] Speaker 01:
The president is uniquely, the incumbent president is uniquely well situated

[02:58:09] Speaker 01:
to make the determination about what's in the best interest of the United States.

[02:58:12] Speaker 01:
And so any kind of test here would have to be one that was extremely deferential and would only block an incumbent president in the most extreme cases.

[02:58:23] Speaker 01:
And I don't think the court should definitively hold that there are any cases in which

[02:58:27] Speaker 01:
the former's views should displace the incumbents, but I think the court could proceed under the assumption that there could be extreme circumstances in which the former would win, but then conclude that in the circumstances of this case,

[02:58:44] Speaker 01:
The incumbents claim is rational on its face and is not one that the court is in a position to second guess.

[02:58:52] Speaker 01:
I think that's largely what the district court did here.

[02:58:55] Speaker 01:
And it seems like the right rational on its face.

[02:58:58] Speaker 03:
So here we have a written explanation.

[02:59:00] Speaker 03:
The White House counsel.

[02:59:04] Speaker 03:
But what if the president gave no explanation, just said, I have determined in the exercise of my article two responsibilities under the constitution that this is not to be exercised in this case.

[02:59:18] Speaker 03:
Nothing else said.

[02:59:19] Speaker 01:
Yes.

[02:59:19] Speaker 01:
So I don't think this is like APA review.

[02:59:22] Speaker 01:
There is no requirement for a written record.

[02:59:25] Speaker 03:
There's no requirement that I would decide under your test that that decision is, I think what you said, objectively rational.

[02:59:34] Speaker 01:
It could be similar to the way courts review legislation under a rational basis test, asking whether there's any conceivable basis on which the president could have decided that this was in the interest of the United States.

[02:59:49] Speaker 01:
I don't think it would be a test that looks at particular motivations.

[02:59:54] Speaker 01:
That would be impractical and intrude too greatly into the presidency.

[03:00:00] Speaker 08:
You know, I'm sorry, Powell.

[03:00:03] Speaker 08:
In Dellums v. Powell, we said, and this involved records of a former president, we said the various decisions concerning the privilege reflect a balancing approach weighing the detrimental effects of disclosure against the necessity for production shown.

[03:00:24] Speaker 08:
And then after surveying the law on the record,

[03:00:27] Speaker 08:
We affirmed the district court and we said we were affirming a ruling of the district court that the plaintiff established a specific need for the requested information sufficient to overcome the rebuttable presumption of privilege of a former president assuming such a privilege exists.

[03:00:50] Speaker 08:
So the district court did a balancing test

[03:00:55] Speaker 08:
We affirmed their balancing test.

[03:00:58] Speaker 08:
And we said, generally speaking, in determining privilege questions, executive privilege questions, we do a balancing test of kind of need versus in determining whether that overcomes the kind of intrusion on the office.

[03:01:18] Speaker 08:
So I don't understand why you say there's no balancing test that we do here.

[03:01:27] Speaker 01:
Understood, Your Honor.

[03:01:29] Speaker 01:
I agree that if you were to determine that the former president has validly made an assertion of executive privilege, notwithstanding the fact that the incumbent has determined not to assert privilege, such that there was some executive privilege that had been validly asserted, then I think you would move to a balancing

[03:01:48] Speaker 01:
like in Dellums or Nixon versus GSA and it would be a different kind of balance than would occur if you have an incumbent who's asserting privilege because the former's assertion would be due less weight but there would be some kind of balance.

[03:02:04] Speaker 01:
What we're saying though is that in the circumstances of this case you don't even need to reach

[03:02:09] Speaker 01:
the balancing.

[03:02:10] Speaker 01:
Dellums was a case like Nixon versus GSA where the executive branch had not reviewed particular documents and made an affirmative determination not to assert privilege, that it's in the interest of the United States for the documents to be disclosed.

[03:02:25] Speaker 01:
In that case, the executive branch had resisted the subpoena but had not asserted privilege, had just raised relevance grounds.

[03:02:33] Speaker 01:
You didn't have the same kind of affirmative determination by the president that it's in the interests of the United States.

[03:02:39] Speaker 01:
to disclose the documents that's what we think makes this a different case where you don't even need to get to balancing of confidentiality versus need.

[03:02:48] Speaker 01:
We think that in this case the incumbents view with respect to the assertion of the privilege ought to prevail.

[03:02:54] Speaker 01:
But this court can and perhaps should reach both conclusions and conclude that if there is an interest here on the part of the former president, that the need that Congress has asserted outweighs that interest.

[03:03:09] Speaker 01:
And I think, Judge Wilkins, you were correct earlier in your assessment of the DC Circuit precedent that that kind of balancing would happen on a global scale, not on a document-by-document scale.

[03:03:20] Speaker 01:
and that in the circumstances of this case, the congressional need would overcome whatever residual confidentiality interests there were on the part of the former president.

[03:03:31] Speaker 05:
Mr. Boynton, can I just maybe say what I think I hear you saying in perhaps a different way, and you can help me to determine whether this is what you mean.

[03:03:41] Speaker 05:
That in a situation in which we have a determination by the incumbent president

[03:03:50] Speaker 05:
that the privilege is going to be waived, that these documents should be released.

[03:03:57] Speaker 05:
There is perhaps a separate separation of powers concern about the court coming in and making this decision to award it or to say the incumbent president has gotten it wrong and the

[03:04:19] Speaker 05:
former president's view should prevail consistent with some balancing test that we invoke that that even if we would ordinarily just balance everything out in a world in which we were called upon.

[03:04:34] Speaker 05:
By the separation of powers as between the two branches.

[03:04:40] Speaker 05:
If there was a conflict between the executive and the legislature and we were somehow called upon to resolve whether the document should be released, we under our precedent might do the balancing test or whatever is required to determine that outcome.

[03:04:58] Speaker 05:
But that in this situation,

[03:05:01] Speaker 05:
where there's not only the lack of a dispute between legislative and executive, we have the incoming executive having actually made a determination about whether the documents would be released.

[03:05:18] Speaker 05:
And so in this world, the court swooping in to do some sort of balancing test as we would in the other world actually raises its own separation of powers concerns.

[03:05:31] Speaker 05:
in terms of the power of the court to resolve or to second guess what this executive is saying.

[03:05:38] Speaker 05:
Is that your position?

[03:05:40] Speaker 01:
Yes, Your Honor, we agree that having a court trained referee this dispute between the incumbent and the former does raise those kinds of separation of powers concerns and

[03:05:52] Speaker 01:
We made that argument in our brief.

[03:05:54] Speaker 01:
It's one of the factors we think should lead the court to determining that if there is any review here, it would need to be highly deferential and give significantly greater weight to the incumbent than to the former.

[03:06:07] Speaker 01:
And it's a reason, I think, that the court ought to decide that the incumbent's view, at least in the circumstances of this case, is controlling

[03:06:17] Speaker 01:
and therefore that there's not a need for balancing.

[03:06:19] Speaker 01:
If you then go on to decide the balancing issue too that may well be something you decide to do and we would have no objection to that but we don't think you need to reach the balancing issue.

[03:06:30] Speaker 08:
There's your view or your response to my questions earlier about how to properly read Nixon v GSA because there again the claim was made that there was really no separation of powers issue raised because

[03:06:47] Speaker 08:
the then incumbent president agreed with Congress, won the statute.

[03:06:51] Speaker 08:
And so to the extent that there's a question as to whether the statute raised any separation of powers concerns, that's resolved.

[03:07:04] Speaker 08:
And the court said, no, not so fast, we disagree.

[03:07:09] Speaker 01:
Yes, your honor.

[03:07:10] Speaker 01:
I think there are two different things going on in Nixon versus GSA.

[03:07:14] Speaker 01:
There was a separation of powers challenge and there's also an executive privilege assertion.

[03:07:21] Speaker 01:
It is completely ordinary for a port to

[03:07:24] Speaker 01:
still consider a separation of powers challenge to a statute, even if the executive branch is defending the constitutionality of the statute, the executive branch doesn't get to simply acquiesce in something that otherwise would violate the separation of powers, the executive couldn't, for example, acquiesce to a line item

[03:07:43] Speaker 01:
veto power for for Congress, the court still has to evaluate that challenge executive privilege though we think is different executive privilege is something that is vested in the executive branch for the benefit of the executive branch.

[03:07:59] Speaker 01:
and that where the incumbent president has made a determination that it is in the public interest not to assert the privilege, we think that that ought to be controlling at a minimum in the vast majority of cases and potentially in all cases.

[03:08:13] Speaker 01:
But again, that's an issue we don't think you need to reach.

[03:08:15] Speaker 01:
And so I agreed the court in Nixon versus GSA did do that balancing.

[03:08:20] Speaker 01:
And it did it in the context of the separation of powers challenge.

[03:08:23] Speaker 01:
It also did it with respect to executive privilege.

[03:08:26] Speaker 01:
But with respect to executive privilege, our view is that the reason the court had to do that is because it wasn't a case like this where you were dealing with particular documents and the incumbent president had made a determination that they should be disclosed.

[03:08:41] Speaker 01:
There was a separate argument that was raised by the former president in his reply brief that we haven't touched on today, but I would like to just mention it briefly because we haven't had a chance to address it.

[03:08:53] Speaker 01:
The reply argues that the PRA itself limits the ability of the incumbent to second guess a privilege assertion by the former.

[03:09:05] Speaker 01:
The former president points to the language that's existed in 2208

[03:09:10] Speaker 01:
C2C and is also in the regs at 1270 44 F3 that talks about whether the incumbent president is going to not uphold a privilege assertion by the former and they argue that not uphold has a specific meaning and they say that that means the incumbent president can only assess whether the requirements for the invocation of privilege are met and doesn't allow

[03:09:39] Speaker 01:
an incumbent president to make a determination, as I've heard here, that it's not in the interest of the United States to assert privilege.

[03:09:47] Speaker 01:
We think that argument is waived because it was raised for the first time in the reply brief.

[03:09:51] Speaker 01:
We also think it's demonstrably wrong.

[03:09:54] Speaker 01:
It's inconsistent with the PRA, which makes clear that the statute is not limiting either president's constitutional authority.

[03:10:02] Speaker 01:
That's in 2204.

[03:10:06] Speaker 01:
C2, I believe.

[03:10:09] Speaker 01:
And there's also nothing in the text of the language not uphold that says that what the incumbent is allowed to do is only determine the legal validity of whether a document potentially could be subject to a claim of privilege.

[03:10:24] Speaker 01:
And there are no cases supporting this not uphold argument as well.

[03:10:29] Speaker 01:
And it's also contrary to the legislative history of 2208.

[03:10:33] Speaker 01:
There's a House report and a Senate report

[03:10:35] Speaker 01:
Neither of which give any indication that 2208 was designed to limit the authority of the incumbent president.

[03:10:43] Speaker 01:
In fact, it's to the contrary.

[03:10:45] Speaker 01:
They talk about how the process there mirrors the process in the Reagan and Obama executive orders, which gave more authority to the incumbent president by making disclosure the default.

[03:10:57] Speaker 01:
in a circumstance where the incumbent president has decided not to invoke the privilege.

[03:11:02] Speaker 01:
So that was just a new argument in the reply brief that I wanted to touch on.

[03:11:06] Speaker 01:
It relates.

[03:11:10] Speaker 03:
Did you want to finish up that point?

[03:11:11] Speaker 01:
No, I was done with that.

[03:11:12] Speaker 01:
I was going to transition to some of the other statutory issues.

[03:11:15] Speaker 01:
So I'm happy to pause for questions.

[03:11:17] Speaker 03:
Yes.

[03:11:20] Speaker 03:
Back to discussing sort of the court's role in this, can you help me understand from

[03:11:26] Speaker 03:
the executive branch's view, what the nature of a former president's continuing executive privilege interest is.

[03:11:39] Speaker 03:
It's not any personal interest in confidentiality.

[03:11:45] Speaker 03:
I promised someone I wouldn't say that.

[03:11:47] Speaker 03:
It's nothing personal like that.

[03:11:48] Speaker 03:
They've made it quite clear this is an official capacity privilege.

[03:11:55] Speaker 03:
And GSA says, and it's not to try to second guess or override the assessment of the interest of the United States or the executive branch because we nod to the incumbent on that.

[03:12:14] Speaker 03:
So what exactly is the interest?

[03:12:19] Speaker 01:
That's a good question.

[03:12:20] Speaker 01:
And you're exactly right that it is not a personal interest.

[03:12:24] Speaker 01:
Nixon versus GSA makes it very clear that it's an interest of the executive branch.

[03:12:29] Speaker 01:
There might be circumstances where the importance and confidentiality of particular documents is not apparent on their face.

[03:12:38] Speaker 01:
You could have documents that, in fact, are highly sensitive and should not be disclosed.

[03:12:43] Speaker 01:
And perhaps the incumbent wouldn't be in a position to recognize that.

[03:12:47] Speaker 01:
from the face of the documents.

[03:12:49] Speaker 01:
And the former might say, oh, no, you should be aware these are highly sensitive documents that you ought to consider very closely.

[03:12:57] Speaker 01:
So I think that's one reason to give a former president a role.

[03:13:01] Speaker 01:
It might be the most important reason, their familiarity with these particular documents.

[03:13:06] Speaker 01:
It gives them a way to make sure that the confidentiality interests are at least flagged and taken into account by the incumbent.

[03:13:13] Speaker 03:
That already happens in the

[03:13:15] Speaker 03:
I don't know whether to call it the administrative process here, but the archivist alerts the former president and the incumbent president and looks like at least gives the former president a little lead time.

[03:13:28] Speaker 03:
And so anything like that would have already been communicated under the statutory scheme here and under the regulations would have already been communicated.

[03:13:38] Speaker 03:
um to the incumbent and I guess when of course present assume that that was factored in when the incumbent president makes a decision so when the former president shows up in court what what interest do they if there is a balancing what interests are they supposed to put on the table

[03:14:04] Speaker 01:
So there is a question about the circumstances in which a former president can, in fact, come to court to assert privilege.

[03:14:13] Speaker 01:
But let's assume for our current purposes that 2204E does permit a former president to bring an action in court to challenge, to bring an executive privilege challenge.

[03:14:27] Speaker 03:
You haven't changed that thus far in this litigation.

[03:14:31] Speaker 03:
You guys at this stage are accepting the cause of action.

[03:14:36] Speaker 01:
Correct.

[03:14:36] Speaker 01:
That is correct with respect to an assertion of executive privilege.

[03:14:40] Speaker 01:
We have argued that there is no cause of action for the former president to bring a challenge either to the statutory requirements in 22052C or to the authority of the committee under the Constitution to bring the valid legislative purpose type arguments.

[03:15:01] Speaker 01:
But we do think that there is a cause of action recognized in 2204E to assert executive privilege.

[03:15:09] Speaker 01:
And in those sorts of cases, the former president could make these kinds of arguments I alluded to a minute ago that there are particular confidentiality interests inherent in particular documents.

[03:15:23] Speaker 01:
That has not occurred here.

[03:15:25] Speaker 01:
All right, there's been no particularized arguments with respect to specific documents.

[03:15:30] Speaker 01:
In theory, that could happen.

[03:15:33] Speaker 03:
I'm not saying that the former president is part whatever this residing of executive privilege is also assert that the appropriate thing for courts to do is a balancing test like Judge Wilkins has raised questions about.

[03:15:47] Speaker 03:
And that requires as part of that analysis, an inquiry into the nature of the legislative interests that may well parallel

[03:15:55] Speaker 03:
the 2205 factors.

[03:15:59] Speaker 01:
I agree that if a court concludes that there has been a valid assertion of executive privilege, even by the former and that balancing is appropriate, that balancing of the qualified privilege would look at some of the same issues with respect to the congressional need.

[03:16:17] Speaker 03:
Please finish the presentation.

[03:16:20] Speaker 01:
I was going to return, this is a related point, but you had asked some questions earlier about how could it possibly be that the incumbent always wins when we have a statutory scheme that seems to envision that the former president can go to court.

[03:16:37] Speaker 01:
to bring an executive privilege assertion.

[03:16:40] Speaker 01:
There are a couple of arguments there that I think are important to consider.

[03:16:46] Speaker 01:
One is that the only statutory provision that expressly seems to contemplate a challenge by the former president in a circumstance where the incumbent

[03:16:58] Speaker 01:
has either decided not to invoke privilege or state silence is 2208 C2C.

[03:17:05] Speaker 01:
But the way that statutory provision works is it actually allows the, it requires the archivist to disclose

[03:17:13] Speaker 01:
if either two things happen, either the incumbent decides not to assert privilege or the incumbent does nothing.

[03:17:20] Speaker 01:
And it says if either of those two things happen, then the former can go to court to assert executive privilege.

[03:17:25] Speaker 01:
So it may well be that Congress was contemplating the former would go to court when the incumbent is silent.

[03:17:32] Speaker 01:
It doesn't necessarily have to be the case that Congress believed that a former could displace an affirmative determination by the incumbent.

[03:17:43] Speaker 01:
It might all.

[03:17:43] Speaker 05:
And there are two different provisions.

[03:17:45] Speaker 05:
There are two different clauses in that statute, right?

[03:17:48] Speaker 01:
Yes.

[03:17:49] Speaker 05:
You're saying both of them mean the incumbent says nothing.

[03:17:53] Speaker 05:
But how can that be?

[03:17:54] Speaker 05:
Doesn't that render one of them superfluous?

[03:17:57] Speaker 01:
Yes, there are.

[03:17:58] Speaker 01:
Earlier, Judge Jackson, you had pointed to the second clause, which is, or by a court order in another action in any federal court.

[03:18:10] Speaker 05:
Oh, I'm sorry, before you get to that I'm talking about it says if incumbent president determines not to uphold the claim of privilege asserted by the former president, or fails to make the determination under this paragraph.

[03:18:25] Speaker 05:
I see I just understood you to say that both of those somehow encompass only the scenario in which the incumbent president doesn't speak.

[03:18:38] Speaker 05:
Isn't the first one, the incumbent president saying, I am not going to uphold this claim of privilege.

[03:18:44] Speaker 05:
I'm going to waive it.

[03:18:46] Speaker 05:
And then the second one is he's silent.

[03:18:48] Speaker 01:
Yes.

[03:18:49] Speaker 05:
If I'm right about that, what do we do with the first one and how is that consistent with what you've just said?

[03:18:54] Speaker 01:
Yes, so the way it's drafted, it may just be that the congressman, the former president could go to court in these general circumstances when one of these two things has happened.

[03:19:06] Speaker 01:
It may be that Congress envisioned that the former president could go to court even when

[03:19:11] Speaker 01:
when we're in that first clause, the incumbent has made a decision not to assert privilege.

[03:19:18] Speaker 01:
And that determination, I think, would be consistent with the general approach of the PRA, which was to leave executive privilege law where Congress found it.

[03:19:27] Speaker 01:
It was neither expanding nor contracting either president's rights to assert executive privilege.

[03:19:33] Speaker 01:
And so Congress was recognizing that a former president could go to court

[03:19:38] Speaker 01:
and make whatever arguments are available to the former president.

[03:19:41] Speaker 01:
It may well be that when you have a situation that the incumbent has made an affirmative decision not to assert that the former's right to assert executive privilege is either non-existent or quite minimal, but that's something that Congress left to the courts to sort out.

[03:19:59] Speaker 05:
So you're saying that we should not be reading this statutory circumstance as

[03:20:06] Speaker 05:
necessarily Congress saying that when both presidents are in court, because the incumbent has said, I'm not going to assert, I'm going to waive.

[03:20:19] Speaker 05:
And the former says, I really think we need to insert it here.

[03:20:23] Speaker 05:
And so I'm going to court.

[03:20:25] Speaker 05:
So both of them are there.

[03:20:27] Speaker 05:
You're saying this doesn't speak to or suggest that they have equal

[03:20:34] Speaker 05:
their position should be given equal weight by the court and that we should just do the same balancing test we would do in another circumstance as though the incumbent never said anything.

[03:20:47] Speaker 05:
Is that what you're saying?

[03:20:49] Speaker 05:
I say the same thing in different ways that I'm wasting everybody's time, but is that what you're saying?

[03:20:55] Speaker 01:
That is correct, Your Honor.

[03:20:57] Speaker 01:
I am saying that when they're both in court, it certainly is not equipoise where you look at both claims of privilege equally.

[03:21:04] Speaker 01:
Our view is that the incumbent's position is entitled to significantly greater weight.

[03:21:10] Speaker 01:
I was also making a point even a step further to say that the fact that the former can go to court doesn't even necessarily mean that the former can ever win in these circumstances where an incumbent

[03:21:21] Speaker 01:
has made an affirmative decision not to assert privilege.

[03:21:25] Speaker 01:
It may be that Congress left that as an open question.

[03:21:28] Speaker 01:
And as I said before, I think that's something this Court could leave as an open question as well.

[03:21:32] Speaker 03:
That's rather extraordinary.

[03:21:33] Speaker 03:
It seems rather extraordinary to go to the trouble twice of talking about these actions that a former president can bring.

[03:21:41] Speaker 03:
And for the Supreme Court to have expressly said

[03:21:45] Speaker 03:
In terms that the former president has an interest under executive privilege that can be enforced in court in terms in that case.

[03:21:55] Speaker 03:
when it was going to be an entirely empty exercise at the end of the day.

[03:22:00] Speaker 03:
But, you know, just to make things more interesting, let's bring Article III into the picture.

[03:22:06] Speaker 03:
That seems to me the exact opposite of how we should, you know, we don't assume Congress is creating constitutional problems with the statutes that it writes.

[03:22:17] Speaker 03:
And I'm certainly not going to assume that the Supreme Court thought it was creating, you know,

[03:22:23] Speaker 03:
more opportunities for the judiciary to step into fights between, or actually to unsettle agreements between the executive branch and Congress.

[03:22:33] Speaker 03:
And it seems to me that part of, I'm assuming what was going on, this is just assumption, is, and I assume you would agree on behalf of your current clients that

[03:22:43] Speaker 03:
that the executive privilege is really important.

[03:22:46] Speaker 03:
It's part of the lifeblood of the executive branch.

[03:22:50] Speaker 03:
And the ability to exercise Article II powers depends, or to do exercise them wisely, depends on having confidentiality.

[03:22:59] Speaker 03:
And if we have a constitutional scheme in which that privilege turns off at 12.01 PM, January 20th,

[03:23:08] Speaker 03:
it won't be a real privilege at all for the preceding four years.

[03:23:13] Speaker 03:
It just, it won't because everyone will know it's the clock is ticking.

[03:23:17] Speaker 03:
And, you know, God bless the president who tries to get confidential advice on something imperative on January 19th, because everyone's gonna know, well, tomorrow it's coming out.

[03:23:29] Speaker 03:
And so my sense is that since, you know, the Supreme Court was,

[03:23:33] Speaker 03:
was not playing games and was recognizing that there has to be the only way we can think to ensure that this executive privilege remains real and doesn't expire, it doesn't have a clock ticking on it the entire time is to allow for some way of vindicating executive privilege that goes beyond the minute a president becomes a former president.

[03:23:59] Speaker 03:
And that's why they talk about it dissipating over time.

[03:24:03] Speaker 03:
And if that's what the Supreme Court was conceptualizing there, maybe I'm all wrong.

[03:24:08] Speaker 03:
You can tell me that.

[03:24:09] Speaker 03:
But if that's sort of what they were concerned about there, I still haven't heard you or anyone address on Mr. Trump's side of the scale here that these requests are coming in pretty quickly on the heels of him having assumed the title of former president.

[03:24:28] Speaker 03:
And how does that factor in either into your

[03:24:33] Speaker 03:
defer to the executive analysis or incumbent analysis or a balancing test.

[03:24:41] Speaker 01:
This administration and the executive branch takes very seriously executive privilege and understands the value of it.

[03:24:49] Speaker 01:
And there's no indication that this administration or prior administrations has willy-nilly disclosed privileged information where there's not a basis to do so.

[03:25:02] Speaker 01:
Many prior administrations have made determinations in specific circumstances like Watergate or the Iran-Contra affair

[03:25:10] Speaker 01:
or 9-11 that the administration is not going to assert what would otherwise be a valid executive privilege because of the circumstances of the case.

[03:25:21] Speaker 01:
And that's what's happened here with respect to the January 6th investigation.

[03:25:26] Speaker 01:
There are other requests that Congress is making for information

[03:25:30] Speaker 01:
from the executive branch right now, where privilege is being asserted and the accommodations process is occurring.

[03:25:39] Speaker 01:
And this administration is not just handing over information to a supposedly friendly Congress.

[03:25:46] Speaker 01:
But the circumstances in this case are extraordinary and involving an attack on the Capitol and the events surrounding it.

[03:25:55] Speaker 03:
That sounds like a much more nuanced analysis than

[03:26:01] Speaker 03:
deferring because the decision is not irrational.

[03:26:06] Speaker 01:
Your Honor, I agree that this is a relatively straightforward case.

[03:26:12] Speaker 01:
We think the court ought to avoid deciding the really difficult cases where a decision not to assert might be more questionable than the decision here.

[03:26:22] Speaker 01:
It's very difficult to figure out in advance what that test would look like.

[03:26:26] Speaker 01:
And it's difficult to say with certainty that a former president in fact can

[03:26:31] Speaker 01:
displace the judgment of an incumbent.

[03:26:34] Speaker 01:
And so our view is that that's an issue that ought to be left open for the hard case that follows and doesn't need to be resolved in this comparatively more straightforward case.

[03:26:45] Speaker 08:
Suppose you have a congressional request for a former president's documents and the former president says, I'm not asserting privilege.

[03:26:58] Speaker 08:
Congress, you can have all of them.

[03:27:00] Speaker 08:
And the incumbent president says, no, I think that that's not in the best interest of the executive.

[03:27:11] Speaker 08:
I assert privilege as to all of the documents and Congress sues.

[03:27:19] Speaker 08:
We apply the same test in that case that you say we should apply in this case.

[03:27:27] Speaker 01:
No, for a couple of reasons.

[03:27:30] Speaker 01:
One, the incumbent's views are entitled to greater weight than the former's.

[03:27:38] Speaker 01:
Second, I don't think there's any indication in the PRA or in the executive orders that

[03:27:45] Speaker 01:
an incumbent's decision to assert executive privilege ought to be displaced by a former's decision not to assert executive privilege.

[03:27:54] Speaker 01:
The way they work is that if the incumbent asserts executive privilege, the document doesn't go out.

[03:28:01] Speaker 01:
And Congress could try to make arguments that it has a need for the documents, in which case, if Congress has an ability to bring that action in court, which is an open question in which we contest,

[03:28:14] Speaker 01:
But if they are allowed to bring that in court, they would have to satisfy the traditional balancing standard under the Senate Select Committee case.

[03:28:27] Speaker 05:
I was confused by.

[03:28:28] Speaker 05:
So in Judge Wilkins' hypothetical, I think Congress gets the documents, right?

[03:28:40] Speaker 05:
Or maybe they don't.

[03:28:41] Speaker 05:
The incumbent president

[03:28:44] Speaker 05:
is saying, I don't think we have an executive privilege issue.

[03:28:48] Speaker 05:
I'm going to waive.

[03:28:51] Speaker 05:
And the former president says, we shouldn't do that.

[03:28:56] Speaker 05:
Under the way the statutes and the law works now, absent a court order, those records would go out, right?

[03:29:04] Speaker 05:
So there would be no basis for

[03:29:07] Speaker 05:
the Congress to be suing?

[03:29:09] Speaker 08:
No, my hypothetical was that Congress wants documents.

[03:29:12] Speaker 08:
The former president says you can have them.

[03:29:14] Speaker 08:
The incumbent president says, no, I'm invoking privilege.

[03:29:19] Speaker 05:
I see.

[03:29:20] Speaker 08:
And Congress sues, and we have to decide whether Congress gets the documents.

[03:29:30] Speaker 05:
I see.

[03:29:31] Speaker 08:
And so, so your answer to my question is that ultimately, we would do the balancing like Senate select committee.

[03:29:41] Speaker 08:
We wouldn't just defer to the executive because we have to make make the call as to whether or not.

[03:29:51] Speaker 08:
Congress's need for the documents overrides the privilege, right?

[03:29:58] Speaker 01:
That's correct, Your Honor.

[03:29:59] Speaker 01:
It's a qualified privilege and can be overcome.

[03:30:02] Speaker 01:
And so the court would go through that exercise assuming there was a basis for the pass to go to court.

[03:30:08] Speaker 05:
And we would have a dispute between the branches in that situation.

[03:30:13] Speaker 08:
Correct.

[03:30:15] Speaker 08:
And so it's your position that

[03:30:20] Speaker 08:
that there is no dispute between the branches here and that's why we use a different test.

[03:30:28] Speaker 01:
That's correct, Your Honor.

[03:30:29] Speaker 01:
With respect to at least these first three tranches of documents, there is no dispute between the branches.

[03:30:36] Speaker 01:
There is a dispute between the presidents, the former, and the incumbent.

[03:30:41] Speaker 01:
But in our view, the incumbent's position is given significantly greater weight than the former's.

[03:30:47] Speaker 01:
And therefore, the traditional Senate select committee test is not appropriate in our view.

[03:30:54] Speaker 03:
Do my colleagues have any more questions?

[03:30:57] Speaker 04:
No.

[03:30:58] Speaker 03:
No.

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

[03:31:02] Speaker 03:
Mr. Clark, am I right in understanding that you're the one that's providing rebuttal?

[03:31:07] Speaker 07:
Yes, your honor.

[03:31:08] Speaker 07:
And I'll be very brief because I really only have one point I want to bring up that wasn't raised in our briefs.

[03:31:14] Speaker 03:
I have to give you some time first.

[03:31:16] Speaker 03:
So just for the record, if I can say, I will give you four minutes.

[03:31:20] Speaker 07:
I appreciate that, Your Honor.

[03:31:22] Speaker 07:
I want to address Judge Jackson's hypothetical regarding the current administrative stay that's in place and considering the weight of the issue that the former president would need and request some period of time, not a long period of time.

[03:31:33] Speaker 07:
to consider and request another administrative stay or injunction pending appeal.

[03:31:39] Speaker 07:
Again, we're not talking about a huge period of time, but some period of time if the court rules as in the hypothetical that Judge Jackson indicated.

[03:31:49] Speaker 03:
Period of time for what?

[03:31:53] Speaker 07:
Time to file an administrative stay pending appeal from this court in the event of a

[03:32:03] Speaker 07:
the government winning this appeal and the administrative state dissolving, there was a discussion about immediate release.

[03:32:12] Speaker 07:
I'm just saying we would request some period of time within which for us to file a motion for a stay, some other motion and to be able to- If you're requesting time, we don't need to give you time to file a motion for time.

[03:32:25] Speaker 03:
Normally what happens is someone requests time to

[03:32:30] Speaker 03:
a window to file a petition for certiorari.

[03:32:32] Speaker 03:
In a case like this where everything is very, very urgent on a very tight timeline, everyone needs to proceed as fast as possible.

[03:32:41] Speaker 03:
I know that's what happened in the Mazars case.

[03:32:46] Speaker 03:
They asked for a very concrete period of time to file certiorari petition or something like that.

[03:32:53] Speaker 03:
Is that what you're alluding to?

[03:32:54] Speaker 07:
That's what I'm alluding to.

[03:32:55] Speaker 07:
I just want to alert the court that we would.

[03:32:56] Speaker 03:
What kind of time?

[03:32:59] Speaker 07:
I mean, it would probably be.

[03:33:00] Speaker 03:
14 days, I think, in that case.

[03:33:02] Speaker 07:
Yeah, that's exactly what we were just, we were just nodding at each other about 14 days seems right.

[03:33:08] Speaker 07:
To be able to get a certain petition.

[03:33:10] Speaker 03:
We're not there yet.

[03:33:12] Speaker 07:
We're not there yet.

[03:33:14] Speaker 03:
Your first argument is we should win.

[03:33:17] Speaker 07:
That's right.

[03:33:18] Speaker 07:
I'd be remiss to not bring it up because it was discussed.

[03:33:22] Speaker 07:
But other than that, we're willing to rest on our briefs on this argument.

[03:33:28] Speaker 03:
Do my colleagues have any more questions?

[03:33:33] Speaker 04:
No.

[03:33:35] Speaker 03:
I have one short one.

[03:33:37] Speaker 03:
The statute and regulations allow asserting an acclaim, but not as to segregable portions of the record.

[03:33:48] Speaker 03:
So if you've got something that a portion is they could have privilege, but there's another portion that could be released, you have to do that.

[03:33:55] Speaker 03:
As to the three tranches

[03:33:58] Speaker 03:
that have been reviewed, and then as within those documents as to which former President Trump has asserted executive privilege in his official capacity, as to those documents, are you representing to this Court that

[03:34:18] Speaker 03:
the just does you have they have been carefully examined to determine not only that they qualify in former President Trump's judgment for executive privilege status, but there is nothing insegregable.

[03:34:35] Speaker 07:
Oh, within each within the document.

[03:34:38] Speaker 03:
Yes.

[03:34:39] Speaker 07:
Yes, that's right.

[03:34:39] Speaker 07:
Your honor.

[03:34:40] Speaker 07:
That's that's my understanding.

[03:34:42] Speaker 07:
And I believe that's correct.

[03:34:43] Speaker 03:
So okay.

[03:34:46] Speaker 03:
If there are no further questions, then the case is submitted.

[03:34:50] Speaker 03:
Our thanks to all counsel for your time and careful and thoughtful presentations.

[03:34:55] Speaker 03:
Very helpful to the court.

[03:34:57] Speaker 04:
Thank you.