[00:00:00] Speaker 01:
Face number 20-5364, Electronic Privacy Information Center, Jason Leopold and BuzzFeed Inc, A Balance, versus United States Department of Justice et al.

[00:00:11] Speaker 01:
Mr. Topic for the A Balance, Mr. Ross for the Apple Ease.

[00:00:15] Speaker 01:
Mr. Topic, good morning.

[00:00:17] Speaker 03:
Good morning, Matt Topic for Jason Leopold and BuzzFeed.

[00:00:22] Speaker 03:
May it please the court,

[00:00:24] Speaker 03:
The government is withholding not only the names of Trump campaign officials who were investigated by the special counsel's office and not charged, but also the justification for those decisions, claiming that this info information shows nothing about what the government was up to.

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I'd like to focus on why the privacy rights are diminished, at least briefly, and focus the public interest analysis on this court's decisions in the crude cases.

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This court has held repeatedly that privacy rights are diminished where the government has already disclosed the fact of a person's involvement in alleged criminal activity.

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And here the government affirmatively argues, quote, in fact, information about the potential criminal conduct of these uncharged individuals has already been disclosed.

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Unlike the material in Bast, the report is an authoritative confirmation that these individuals were investigated and not mere journalistic speculation.

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And as a result, the privacy rights are diminished.

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That takes us to the public interest analysis under CRU.

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And CRU recognizes several variations on a similar public interest.

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First, it talks about how prosecutors carried out substantive law enforcement policy and exercised their discretion.

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It discusses whether the government had the evidence but nevertheless pulled its punches.

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and whether prominent and influential officials were subjected to the same prosecutorial zeal as other people.

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And as to that last point, while it is true the crew was discussing public officials, it's a very short step from public officials to people in the inner circle of a presidency and people who are involved high up in a presidential campaign.

[00:02:09] Speaker 01:
What's your authority for that?

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I think it's really the logic of why the court reached that decision.

[00:02:16] Speaker 01:
How about case authority?

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So there are several cases that at least suggest that the public figure, nature of the person involved can diminish their authority.

[00:02:30] Speaker 01:
I thought we were talking about non-public officials.

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So we don't know

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Specifically, whether these people are or not government officials.

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So let's assume for the sake of argument, and I think it's clear from the context that many of them are not government officials.

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They were campaign officials.

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So the concern in CRU.

[00:02:51] Speaker 01:
They were, I don't know why you call them campaign officials.

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They were private individuals.

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We either have public officials or private individuals.

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So I think if we look at the reasoning in CRU, the concern was,

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that certain people might not be prosecuted or investigated with the same prosecutorial zeal as lesser known people.

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There was one public figure in there, Tom DeLay.

[00:03:22] Speaker 03:
Correct.

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There were no private citizens.

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That's correct, Your Honor.

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The point I'm making is that

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The concern that Tom Delay might not be prosecuted with the same zeal as a lesser known person, as this court articulated in Crew, is every bit as much true if the person is a member of the president's inner circle and might even be the president's son.

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The public's concern that those people might be treated differently by prosecutors than lesser known people, that was the concern as to that variety of public interest that the court discussed in Crew.

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So you're correct that the case does not hold that that doctor can be applied to people who are not public officials, but the reasoning would apply every bit as much here as it would if these people were public officials.

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That said, that's one of three different concerns that the court articulated in crew.

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And that discrepancy or that issue

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It doesn't bear on the two other forms of public interest and crew that are very much served.

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Um, the material here is both the names of people investigated and the actual declination analysis.

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So if we look at the passages that have been withheld, there are a number of, uh, declination decisions for false statements that are entirely redacted.

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We do not know anything about how the special counsel's office reached that decision.

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There's a section 10 30 charge for computer intrusion.

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where we know that the special counsel found that there was sufficient evidence to charge that person with a misdemeanor, but in the exercise of prosecutorial discretion elected not to do so.

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But all of the facts in that discussion have been redacted, making it exceedingly difficult for the public to understand how that decision was made.

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Do you agree that if there are situations in which there's redacted material,

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You're arguing the diminished interest as being terribly important in this case.

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But what about a situation in which the redacted material may refer to someone who's been identified in the public released papers, but there are different facts with respect to those persons that have not been identified.

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In that instance, this court's precedent would hold and has held that there remains a privacy interest for those additional facts, but the privacy right is diminished.

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And so we need to look at the public interest served by the disclosure of those additional facts.

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And if those additional facts are not elsewhere disclosed, it undermines the government's argument that we don't need any more information because we've already been told everything that matters.

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And if there are additional facts that haven't been disclosed and they bear on the exercise of prosecutorial discretion, then we get into the public interest under crew.

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And if that information would show what the government was up to, it would show how prosecutors exercise their discretion.

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It would show whether the prosecutors had the evidence and pulled- The individual may have very strong privacy interests with respect to certain facts that have not been publicly released.

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and that might bear on the declination decision.

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And what's your public interest in saying we're entitled to get that?

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You know, speculation might be grand jury, appearance before a grand jury, such things.

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Why do you think under the case law you're entitled to that?

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Where there hasn't been any release of certain facts supporting what was done with respect to certain individuals.

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In CRUDE, this court looked to whether individuals had previously been implicated in the investigation and then said for those individuals, we're going to use the analysis under CRUDE and whether it would show the exercise of prosecutorial discretion, et cetera, and not require showing under safeguard or under faddish or under fund for exceptional interests.

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So that's how

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Sorry.

[00:07:52] Speaker 04:
Go ahead, finish your answer.

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I just have a follow up question.

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Finish your answer.

[00:07:57] Speaker 03:
Go ahead.

[00:07:58] Speaker 03:
I lost my train of thought.

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I apologize.

[00:07:59] Speaker 04:
Well, let me just follow up with what Judge Edgewood was asking.

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So if you look at the unredacted report, there's a big difference between what's in those reports about

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the charging decisions regarding campaign offenses and those for false statements.

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There's a whole lot of information in the reports about the former, about the campaign related in the unredacted versions of the report, hundreds of pages, right?

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It's hundreds of pages about Russia's hacking activities, the links between Russia and the Trump campaign,

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But with respect to, as Judge Edwards pointed out, with respect to the false statements, there's absolutely no information in the unredacted report.

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And not only that, but the latter offenses were committed during the grand jury proceedings, not like the campaign offenses during the primary offenses that the special prosecutor was looking at.

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special counsel was looking at.

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So sorry to go on so long.

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But to me, those two categories seem quite different.

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The campaign related offenses and the false statement ones seem quite different to me in terms of the public-private balance.

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What's the matter with thinking about it that way?

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I don't think there is anything wrong with thinking of it that way.

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And we do not argue that every bit of information

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is precisely the same analysis.

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We obviously have not seen the unredacted report.

[00:09:37] Speaker 04:
So then let's just pursue that for a minute.

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So take, for example, the false statements cases.

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What's the possible argument for ordering those unredacted?

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There's no information in the unredacted versions about the underlying.

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That would all be new.

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That would be releasing

[00:10:01] Speaker 04:
charges about people who have not been indicted, not been charged, facts about their behavior that have not been, it sounds like, I mean, you know, it sounds like, yeah, we would be revealing a huge amount of information, well, I can't say a huge amount, but a lot of information about people who have not been charged, whereas that's not the case with the campaign offenses.

[00:10:25] Speaker 04:
So how do you do the public balance in that case?

[00:10:31] Speaker 03:
There is nothing that's been disclosed by the government showing that those particular individuals were investigated.

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And let's even say investigated specifically for false statements.

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Then I think under CRU, we would be looking at either an analysis under Favish or the exceptional interest standard under fund.

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And that takes us then to the Favish analysis.

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And we have a situation in which the president of the United States has repeatedly said that this was an illegal political witch hunt.

[00:11:07] Speaker 04:
I just want to drill down on this thing.

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The type of conduct I'm thinking about with the false statement thing kind of reminds me of Judicial Watch and the other cases we have, where we focused on the danger

[00:11:24] Speaker 04:
of disclosing unproven allegations against people who were never charged.

[00:11:29] Speaker 04:
That's this category.

[00:11:32] Speaker 03:
I think judicial watch is distinguishable for several reasons.

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And in fact, the information withheld here, which is the official discussion by the office, as opposed to staff written draft indictments,

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The fact that this is the actual analysis is opposed to a drafted diamond with no explanation.

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Those are facts that distinguish that information here from the information in judicial watch.

[00:12:03] Speaker 04:
And in fact, the information here is like- I agree that the facts are different, but isn't the principle the same?

[00:12:09] Speaker 04:
The principle, again, is the same.

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Whether they're allegations from investigators or allegations from the special counsel,

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Just repeat what the case says.

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The danger of disclosing unproven allegations against people who were never charged.

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Whatever the source of the allegation, that's the problem with the false statements claims, not the campaign ones.

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I'm separating those.

[00:12:43] Speaker 03:
I think the report here is like the

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the report that a special division of this court allowed released in the Judicial Watch case or in the Clinton investigation, which was the explanation of what had been investigated, what was being charged and what wasn't being charged.

[00:13:01] Speaker 03:
It is much more like that than it is like the draft indictment because this court held that Mrs. Clinton was without the benefit of

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any explanation from the independent counsel about what were these draft indictments?

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Why were they drafted and why were they not filed?

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And what is being withheld here is exactly that.

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It is the explanation from the special counsel's office as to why it decided not to bring charges against these individuals.

[00:13:27] Speaker 04:
What about the other distinction I made?

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What about the fact that the false statements, in terms of the public interest, the false statements were made to the grand jury.

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and their false statement to grand jury.

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I don't mean to minimize the seriousness of it, but those are a lot less serious than the basic offenses that the special counsel was investigating in terms of campaign violations.

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Isn't that a big difference?

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The public interest is less about what the offenses were.

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It's more about and exclusively about

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How did the special counsel go about its business in deciding that it would or would not bring them?

[00:14:05] Speaker 04:
I'm just talking about the public's need to know.

[00:14:08] Speaker 04:
Public obviously has a lot stronger need to know about Mr. Mueller's reasoning in connection with the core of his case, namely the campaign violations and the computer violations than

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than with respect to the fact that a couple of witnesses may or may not have lied to the grand jury.

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A couple of witnesses who may not have been involved in the, a couple of other witnesses who may not have been involved in the campaign issues, but were nevertheless questioned by the grand jury.

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Isn't that a big difference for the public interest?

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I mean, the seriousness of the crimes investigated

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has some bearing on that.

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But the fact that we cannot understand how those decisions were made is the core public interest under Section 7C.

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And from what the court has described here.

[00:15:07] Speaker 04:
But you agree in terms of the public's need to understand what was going on.

[00:15:11] Speaker 04:
It relates considerably to what the public already knows and to the position of the people involved, correct?

[00:15:23] Speaker 03:
Those are relevant factors, but it ultimately comes down to, would this information allow the public to understand how important decisions were made by the special counsel's office?

[00:15:35] Speaker 04:
What happens if we look at these materials on camera and find no evidence of government misconduct at all?

[00:15:44] Speaker 03:
That would matter under the, well,

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First, under Favish, the evidence of potential government misconduct need not come from the report itself.

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Under Crue, there need not be any showing whatsoever of any government misconduct.

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That's expressly what this court held in Crue.

[00:16:00] Speaker 03:
It's the public interest in understanding how prosecutorial discretion was exercised in whether punches were pulled, independent of any showing of wrongdoing under Favish.

[00:16:14] Speaker 03:
If there's no further questions, I'll reserve the remainder of my time.

[00:16:19] Speaker 01:
Right, Mr Ross.

[00:16:25] Speaker 01:
You need to unmute yourself, Mr Ross.

[00:16:29] Speaker 02:
Well, that should work.

[00:16:31] Speaker 01:
Okay, go ahead.

[00:16:33] Speaker 02:
Thank you, your honor, a case in Ross for the Justice Department, following a careful review of the information at issue, both in camera and following an ex parte hearing.

[00:16:42] Speaker 02:
In addition to a number of government declarations and governments, the government's discrete answers to questions posed by the district court itself.

[00:16:50] Speaker 02:
The court upheld the government's withholding of names and other personally identifiable information of individuals that the special counsel's office declined to prosecute.

[00:17:00] Speaker 02:
That was correct and this court should affirm.

[00:17:03] Speaker 02:
The public interest of the disclosure of this information is far outweighed by the privacy interests of these particular individuals.

[00:17:12] Speaker 00:
I don't know how you can say that with respect to a number of individuals

[00:17:15] Speaker 00:
who clearly have a diminished expectation of privacy because they've already been discussed in the public document.

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Their names have been revealed.

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They are clearly a part of whatever was going on.

[00:17:30] Speaker 00:
The facts about them have been revealed.

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It's distinguished from the question I gave the other council in situations where that is true and you have redacted the explanation

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for the government's decision.

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I don't understand, even under judicial watch, why that wouldn't be releasable material.

[00:17:52] Speaker 00:
Situations where it's clearly, it's gotta be a diminished expectation of privacy.

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Your name is public, it's clear, and the facts about you have been revealed.

[00:18:01] Speaker 00:
They're not hidden.

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We're not talking about a situation where there are new and additional facts.

[00:18:06] Speaker 00:
The facts have been revealed, and the only thing that's missing that you've redacted

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is the explanation for why the government took the position it took in the report.

[00:18:16] Speaker 02:
And two responses, Your Honor.

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First is that there's a material distinction between being involved with the investigation itself versus having charges contemplated against an individual.

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And that's a salient distinction here.

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The appendix D of the report lists a number of individuals who were involved in the special counsel's investigation.

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And that is certainly public knowledge that many of those individuals were interviewed

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their acts contemplated as part of that investigation.

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But that is a completely separate privacy interest as concerns prosecutorial declination decisions.

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This court has repeatedly held that a privacy interest or an individual's privacy interest is at its apex when a conviction or excuse me, charges are contemplated against an individual but not subsequently brought.

[00:19:07] Speaker 02:
The end, in fact, judicial watch arguably points in the opposite direction, where in that case, this court discussed Secretary Clinton's, in fact, augmented privacy interest with respect to an incredibly high profile investigation, further disclosure of which would, in fact, impede her own privacy interests, such that disclosure was not necessary in that case.

[00:19:30] Speaker 02:
The same is true here.

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In fact, not only is there a salient distinction between investigation versus an actual prosecution contemplation, but this court has also made a distinction between individuals who were actually charged versus those who were not convicted that in the crew cases.

[00:19:51] Speaker 02:
This court explicitly suggested that individuals who were not actually charged in association with the Tom Delay investigation, their names or personally identifiable information need not be disclosed.

[00:20:05] Speaker 02:
The same is true here.

[00:20:07] Speaker 02:
The individuals who are named in the report on the five pages that are at issue here

[00:20:12] Speaker 02:
have a substantial privacy interest in essentially being let be, and for that information not being disclosed.

[00:20:20] Speaker 00:
Plaintiffs here haven't- The problem is you have the case law that says the public has a right to understand what the government has done and why.

[00:20:28] Speaker 00:
And with respect to individuals who have been clearly identified and with respect to the facts about them that are already in the public record,

[00:20:38] Speaker 00:
The only thing we're talking about now is why did the government reach the conclusion it reached?

[00:20:44] Speaker 00:
And there is plenty of case law that suggests in that situation, if that's what you're talking about, that should be disclosed because there is a diminished interest in privacy in that situation.

[00:20:54] Speaker 00:
The individual has been identified.

[00:20:57] Speaker 00:
The facts with respect to that individual are in the public record.

[00:21:01] Speaker 00:
And the only question is whether or not the government's explanation for the decision it's made has been removed.

[00:21:09] Speaker 00:
And that was one of the things we said with respect to Hillary Clinton.

[00:21:13] Speaker 00:
She had that.

[00:21:15] Speaker 00:
And with the assumption that the argument certainly can be made.

[00:21:19] Speaker 00:
So we would assume that a person is entitled to get that.

[00:21:23] Speaker 00:
And the crew cases certainly suggest that someone seeking the information on the floor is entitled to information of that sort where the person has been already revealed.

[00:21:36] Speaker 02:
Again, two responses, Your Honor.

[00:21:38] Speaker 02:
First, the colloquy that Judge Tittle had with my opposing counsel suggests that there is actually new information in the redacted material that implicates those individuals' privacy interests involving- No, no, no, I'm not talking about that situation.

[00:21:52] Speaker 00:
That was the first question I asked the opposing counsel, if we're talking about new factual information.

[00:21:58] Speaker 04:
So the other- By the way, Mr. Counsel, I was only talking about one category of those.

[00:22:06] Speaker 04:
charges, namely the false statement ones, not the campaign ones.

[00:22:09] Speaker 04:
It seems to me that Judge Edwards' questions go straight to the heart of those.

[00:22:15] Speaker 04:
All of the facts surrounding that

[00:22:22] Speaker 00:
Are in the public record, hundreds of pages in the report about the only thing that's missing is the explanation is to are the government and that's that's essentially what this fight is about.

[00:22:32] Speaker 02:
I respectfully disagree your honor the disagree with disagree about what.

[00:22:37] Speaker 02:
I think what information we're referencing here.

[00:22:40] Speaker 02:
So if the section of the Mueller report detailing possible links between the Trump campaign and the Russian government is JA 636 to 743, which concerns the possible campaign violations that you were describing,

[00:22:57] Speaker 02:
The information at issue here is not in that section of the report and goes to different possible legal violations.

[00:23:03] Speaker 02:
But I think that the more important point that I was going to make in response to Judge Edwards is that releasing the information here would be an authoritative confirmation that possible charges were contemplated against these individuals.

[00:23:16] Speaker 02:
This court in Kimberlin said as much that with respect to charges contemplated against a federal prosecutor or in Bast against a federal judge,

[00:23:25] Speaker 02:
Excuse me, Your Honor?

[00:23:27] Speaker 02:
that the government's release of information that would confirm whether a prosecution decision was contemplated against those individuals is, again, a material distinction and relevant to that individual's privacy interests, such that the government could withhold the names and other personally identifiable information that concerned those.

[00:23:51] Speaker 00:
I was frozen out.

[00:23:52] Speaker 00:
I'm not sure how much I lost.

[00:23:54] Speaker 00:
I'll go ahead and listen and see whether there's something I'm missing.

[00:23:57] Speaker 02:
Sure.

[00:23:58] Speaker 02:
I was just referencing this court's decisions in Kimberland and Bass, Your Honor, where this court explained that the authoritative confirmation provided by releasing names is an additional calculus to consider for an individual's privacy interest.

[00:24:14] Speaker 02:
That's the statement I was making.

[00:24:17] Speaker 04:
Additionally, in- I just don't understand what you said about two minutes ago.

[00:24:22] Speaker 04:
I mean, with respect to the campaign violations,

[00:24:26] Speaker 04:
the Russian links and all that.

[00:24:29] Speaker 04:
The report already tells us who these people are, the fact that they were investigated, and the details.

[00:24:38] Speaker 04:
The only thing we don't know, the only thing the public does not know is the prosecutor's reasons for not indicting.

[00:24:48] Speaker 04:
If it doesn't know that, how can the

[00:24:51] Speaker 04:
public possibly know whether the government, as they say in one of our cases, quote, pulled its punches.

[00:24:57] Speaker 04:
We just, no matter how much is released about those matters, hundreds of pages, the one thing the public needs to know, it doesn't know now because the one thing that's not there is the prosecutor's reason.

[00:25:11] Speaker 02:
So, to the extent there is a concern that the special counsel Mueller pulled his punches.

[00:25:17] Speaker 02:
Again, I'll refer to you to Appendix D, which lists a whole host of prosecutions that the special counsel's office referred to other offices for further investigation.

[00:25:26] Speaker 04:
But it doesn't tell us about these prosecutions.

[00:25:28] Speaker 04:
They're not related to these cases.

[00:25:30] Speaker 02:
So to the extent their court is concerned in that respect, I urge you to review the report in camera, which we have provided for the court's review.

[00:25:39] Speaker 02:
Additionally, there's plaintiffs have provided no reason to suspect that the prosecutor here pulled his punches.

[00:25:45] Speaker 02:
There's no evidence suggesting that anyone in the special counsel's office acted improperly, which would provide reason for disclosure.

[00:25:53] Speaker 02:
But there's no evidence of that here.

[00:25:54] Speaker 00:
They don't have to prove that.

[00:25:58] Speaker 00:
It's not a question of proof, Your Honor, but they can rest on the argument that in certain circumstances, the public is entitled to know.

[00:26:07] Speaker 00:
Public is entitled to understand how the government operated.

[00:26:10] Speaker 00:
See, that's one of the baselines you want to conveniently ignore.

[00:26:14] Speaker 00:
That's what some of the cases are saying.

[00:26:17] Speaker 00:
Public is entitled to understand what went on, and especially where there's diminished expectation of privacy, as there is here with respect to a number of individuals who are all over the public record, and we know a ton of facts about them.

[00:26:31] Speaker 00:
And the only thing we don't know is what the case law says you're entitled to know is,

[00:26:35] Speaker 00:
So how did the government reach the conclusion it reached, given all the information that we're looking at, so that we the public can think about?

[00:26:43] Speaker 02:
The Supreme Court explained in Babish, Your Honor, that rather a clear evidentiary showing is required to establish government misconduct for purposes of... I'm not talking about misconduct.

[00:26:54] Speaker 00:
You're misreporting this rationale that says

[00:26:58] Speaker 00:
The public is entitled to understand what the government is up to.

[00:27:02] Speaker 02:
Absolutely.

[00:27:03] Speaker 00:
And but there's no, not only assumption that it was good, bad or otherwise, they're entitled to understand what's going on in our democracy, why certain decisions were made in light of all this information which we're looking at now.

[00:27:16] Speaker 00:
And some are scratching their head thinking it's easy, some are scratching their head thinking it's hard, and we don't have an answer.

[00:27:23] Speaker 00:
And the case law suggests that you have to provide that answer where there's a diminished expectation of privacy.

[00:27:29] Speaker 02:
So in this context, Your Honor, it's worth considering the amount of information that the government has already disclosed, both in the Mueller report and the Congress has released with respect to the facts surrounding this investigation.

[00:27:40] Speaker 00:
Let me make it very clear what I'm saying.

[00:27:44] Speaker 00:
What's missing here, at least in my review of the cases, and I have looked at the materials.

[00:27:49] Speaker 00:
The one crucial thing that's missing here and Judge Hadal and I seem to have been focusing on the same thing we haven't talked before is the bottom line.

[00:27:57] Speaker 00:
So why did you do what you did?

[00:27:59] Speaker 00:
All the other facts are there.

[00:28:00] Speaker 00:
You can't win any points by saying, but all the facts are there.

[00:28:05] Speaker 00:
And then say, we get a lot of points and we therefore don't have to explain to you why we did what we did.

[00:28:11] Speaker 00:
That's not what the case law says.

[00:28:13] Speaker 00:
In fact, the case law says quite the opposite.

[00:28:16] Speaker 02:
But in those circumstances, your honor, because the justice department determined that there is an interest in disclosing much of the information here, it is worth noting that the special counsel's report is traditionally a confidential document disclosed to the attorney general solely for making prosecutorial decisions and declination decisions.

[00:28:37] Speaker 02:
But obviously the attorney general determined that it was in the public interest to release much of this information, but that seeds in the very limited

[00:28:46] Speaker 00:
um information that's issued here to those individuals privacy and the independent council decided that it made sense to do it in part because the independent council announced that the attorney general's explanation of the report was not accurate all the more reason the public has an interest in seeing what's in the report when there is the diminished expectation of privacy you so you've released all these facts

[00:29:11] Speaker 00:
The independent counsel said, wait, the attorney general's explanation of what we did is not accurate.

[00:29:17] Speaker 00:
So the public has a whole lot of facts.

[00:29:19] Speaker 00:
And the only thing you don't have for the public is, well, how did you reach the conclusion you reached?

[00:29:25] Speaker 02:
That's not quite right, Your Honor.

[00:29:27] Speaker 00:
Which is not quite right.

[00:29:30] Speaker 02:
The special counsel disagreed to some extent.

[00:29:33] Speaker 00:
Well, we both know the passage.

[00:29:36] Speaker 02:
I was merely going to say that the process by which information was withheld from the public here and other redactions in the report itself, that was done by the Justice Department's Office of Information Policy in partnership with the special counsel's office.

[00:29:51] Speaker 00:
No, what I'm talking about is the public's need for understanding, which is consistent with some of what the case law says.

[00:29:59] Speaker 00:
The public's need for understanding is really high here.

[00:30:02] Speaker 00:
The president is saying it's a scam.

[00:30:05] Speaker 00:
It's a fraudulent situation.

[00:30:07] Speaker 00:
The independent counsel is saying the attorney general's report on our report is not accurate.

[00:30:14] Speaker 00:
And we're releasing lots of information.

[00:30:16] Speaker 00:
We're just not going to tell you why we did what we did.

[00:30:19] Speaker 00:
That makes no sense to me in light of the case law that I've been reading.

[00:30:23] Speaker 00:
That makes no sense when you have that combination of circumstances.

[00:30:27] Speaker 00:
50% of the people believed, that's what the appellants have put in the record, believe some of what the president was saying with respect to this being a sham procedure.

[00:30:38] Speaker 00:
That's exactly the kind of situation where the public interest is very, very high, it seems to me.

[00:30:43] Speaker 02:
But in this very small circumstance in which the information that's withheld is quite limited and specifically tailored to individuals names and personally identifiable information, their privacy interests must outweigh the public interest in the names are already released.

[00:31:02] Speaker 04:
Yeah, the names are out.

[00:31:03] Speaker 00:
The names are out.

[00:31:05] Speaker 00:
We're not talking about either names that have been withheld, nor are we talking about cases where there are new facts that are not in the public record.

[00:31:15] Speaker 00:
I have distinguished those categories.

[00:31:17] Speaker 00:
They're different cases.

[00:31:18] Speaker 00:
I'm talking about situations where the names are released and all the facts about those individuals have been released.

[00:31:24] Speaker 00:
And the only thing that's not there, which is what Tradition Watch says, Clinton had, the expectation being it would occur in any case.

[00:31:33] Speaker 00:
is why the government took the action they did.

[00:31:37] Speaker 02:
But in these circumstances, Your Honor, individuals have a substantial privacy interest in not being associated with possible charging decisions.

[00:31:45] Speaker 02:
Traditionally, if the Justice Department were to bring charges against a person, there would be a court of law in which due process attaches to the individuals such that they can defend themselves and clear their reputation and name in impartial proceedings.

[00:32:01] Speaker 02:
If the information is disclosed here, there would be no similar opportunity.

[00:32:05] Speaker 02:
These individuals would simply be named as having charges contemplated against them, but then in the special counsel.

[00:32:16] Speaker 04:
That makes sense to me with respect to the category of false statements, but not the campaign ones, as both Judge Edwards and I have pointed out.

[00:32:23] Speaker 04:
All the information about that and the names are spread all over the report.

[00:32:27] Speaker 04:
But let me ask you this.

[00:32:28] Speaker 04:
You said in response to one of our questions,

[00:32:31] Speaker 04:
when we were asking how the public would know.

[00:32:33] Speaker 04:
You said there's been enough released in any event for the public to know, to understand why the special counsel didn't prosecute.

[00:32:44] Speaker 04:
In other words, to judge the prosecutor's decisions in this case.

[00:32:48] Speaker 04:
So let's just take an example, okay?

[00:32:52] Speaker 04:
Section 1030.

[00:32:54] Speaker 04:
1030 violations.

[00:32:56] Speaker 04:
Just take those for example, okay?

[00:32:58] Speaker 04:
Show me where in the report that the public would be able to assess whether that particular declination decision was well-founded.

[00:33:07] Speaker 04:
Where would I find it?

[00:33:09] Speaker 02:
So I believe it is isolated.

[00:33:12] Speaker 02:
I don't believe it is described in other circumstances.

[00:33:15] Speaker 04:
That's the whole point.

[00:33:16] Speaker 04:
It isn't there.

[00:33:18] Speaker 02:
But I think the public's interest in understanding whether the special counsel's office pulled its punches with respects to that single possible charge is quite limited and is essentially limited to, as this court said in Schrecker, the name in a law enforcement investigatory file.

[00:33:35] Speaker 02:
And the public's interest in that circumstance is minimal and is actually far outweighed by that individual's privacy interest with respect to that possible charge.

[00:33:45] Speaker 02:
There is no compelling reason that the public would be interested in that single isolated contemplated charge in which there is a huge volume of information already available for the public to determine whether the special counsel acted properly.

[00:34:04] Speaker 02:
And plaintiffs have provided no evidence to suggest there was any improper conduct here.

[00:34:09] Speaker 02:
They don't have to.

[00:34:11] Speaker 02:
I respectfully disagree, Your Honor.

[00:34:13] Speaker 00:
No, they do not.

[00:34:14] Speaker 00:
The case law does not say in every situation they have to be able to show an impropriety.

[00:34:21] Speaker 00:
You really are misstating the law and it's really unfortunate because it's a piece of the law that really is very much about how our democracy works.

[00:34:30] Speaker 00:
And let's not undermine it.

[00:34:31] Speaker 00:
It's the public has a right to understand what's going on in the government.

[00:34:36] Speaker 00:
And those who are seeking information that they're entitled to get don't have to prove or even claim that someone committed wrong here.

[00:34:45] Speaker 00:
You know, the public has a right to be interested when the president says this is all a sham.

[00:34:50] Speaker 00:
And 50% of the public agreed with that.

[00:34:52] Speaker 00:
Well, there's a serious question in our democracy.

[00:34:55] Speaker 00:
How do we answer that question?

[00:34:57] Speaker 00:
We look to see what the government's answer was for the action that it took.

[00:35:02] Speaker 00:
That's what the cases say.

[00:35:04] Speaker 04:
And you know, even you yourself cited Favish.

[00:35:07] Speaker 04:
And Favish says, Favish says, it says, all it says is, it says it's a particular use of disclosure.

[00:35:14] Speaker 04:
if evidence would warrant a belief by a reasonable person, the alleged propriety might have occurred.

[00:35:23] Speaker 04:
And here we have the former president of the United States repeatedly accusing the special counsel of bias and impropriety.

[00:35:30] Speaker 04:
And we have the special counsel and the attorney general arguing that the other misrepresented each other.

[00:35:35] Speaker 04:
I mean, wouldn't you think that a reasonable person would worry about whether there was an impropriety here?

[00:35:40] Speaker 02:
I think two responses, your honor.

[00:35:45] Speaker 02:
I think for one, it's worth considering exactly the very minimal information that's at issue here, which was not implicated in either the president's statements or in the conversation.

[00:35:57] Speaker 02:
I guess you could call it a conversation or the competing letters between special counsel Mueller and the attorney general.

[00:36:02] Speaker 02:
That didn't implicate

[00:36:03] Speaker 02:
the very discrete declination decisions that's implicated by the information withheld here.

[00:36:10] Speaker 02:
Rather, that is on five separate pages of the report in a context of over 450 pages of material that was not implicated by those statements.

[00:36:23] Speaker 04:
I just have a little technical, I'm sorry, were you gonna, you go ahead, Harry.

[00:36:28] Speaker 01:
Sure, I was just going to say- Let me interject something here.

[00:36:33] Speaker 01:
First of all, I completely disagree with my colleagues that we can consider either political bombast or media hyperbole as supporting a reasonable belief.

[00:36:49] Speaker 01:
I don't believe there's a case anywhere

[00:36:52] Speaker 01:
that says that constitutes evidence in a court of law.

[00:36:59] Speaker 01:
But I'd like to ask you about Judge Walton, with respect to the 7C exemption, which is what we're talking about, simply says on page 266, because the plaintiffs have failed to satisfy their obligation,

[00:37:18] Speaker 01:
to show that the requested information advances the public interest in the disclosure of such information.

[00:37:26] Speaker 01:
He does not discuss and granted the plaintiffs made a very cursory or very cursory relied on it at the summary judgment stage.

[00:37:40] Speaker 01:
He does not discuss this law enforcement policy

[00:37:44] Speaker 01:
public interest that was so thoroughly discussed in Crew.

[00:37:51] Speaker 01:
Now, what I'm hung up in this case is that we're dealing with private individuals and Crew was one of the, involved one of the most powerful or significant public officials at the time.

[00:38:11] Speaker 01:
So what I'd like to ask you is, if we sent this back to Judge Walton to consider specifically per crew the law enforcement policy public interest that does not require any wrongdoing or allegation of any wrongdoing, what would be your position with respect to these

[00:38:39] Speaker 01:
private individuals that he'd be applying that to.

[00:38:45] Speaker 02:
So because they are private individuals, they do have a substantial privacy interest with respect to the information that's been withheld here, Your Honor.

[00:38:53] Speaker 02:
And in those circumstances, there is less of a public interest in understanding what

[00:38:58] Speaker 02:
the quote government is up to, as opposed to, for example, this course of regional nation magazine, in which the in that case, the plaintiff had sought records concerning possible privatization of government drug interdiction efforts.

[00:39:14] Speaker 02:
There's no similar demonstration of the public's right to understand exactly what the special counsel's office or the decisions the special counsel's office took with respect to these particular private individuals.

[00:39:29] Speaker 02:
Here, it's the public's right to know is minimal because it concerns, as your honor stated, private individuals who did not serve public functions.

[00:39:43] Speaker 01:
All right, are there any more questions?

[00:39:45] Speaker 04:
I just have a technical question.

[00:39:47] Speaker 04:
All right.

[00:39:49] Speaker 04:
Mr. Ross, I did look at the redacted.

[00:39:58] Speaker 04:
I did look at these.

[00:40:00] Speaker 04:
And I noticed that some of the materials are marked.

[00:40:07] Speaker 04:
I'm talking about in the false statement and obstruction offenses here.

[00:40:11] Speaker 04:
Some of them are marked.

[00:40:13] Speaker 04:
B3-1.

[00:40:16] Speaker 04:
That's grand jury material, at least, isn't it?

[00:40:21] Speaker 02:
I'm looking at the material right now, Your Honor, and I don't believe that the information that's

[00:40:25] Speaker 02:
Oh, yes.

[00:40:26] Speaker 02:
B3-1 is grand jury material.

[00:40:28] Speaker 04:
But you didn't say anything about that in your brief.

[00:40:29] Speaker 04:
Do we have to worry about that some of this might be grand jury material?

[00:40:33] Speaker 00:
I had the same question.

[00:40:34] Speaker 00:
And I was surprised when we saw nothing.

[00:40:36] Speaker 04:
Yeah.

[00:40:37] Speaker 04:
And you're saying right there, B3-1.

[00:40:38] Speaker 02:
Correct.

[00:40:39] Speaker 02:
So some of the material has been withheld for a number of reasons.

[00:40:45] Speaker 02:
A number of FOIA exemptions was applied to each some of the information at issue.

[00:40:51] Speaker 02:
Of course, plaintiffs have only challenged Exemption 7C.

[00:40:55] Speaker 02:
So to the extent that another FOIA exemption would apply to that material, were the court to reverse the distribution?

[00:41:02] Speaker 04:
I mean, it would have been helpful if you said something in your brief about that.

[00:41:06] Speaker 04:
If you just read your brief, the view from the brief is, OK, we just have to resolve.

[00:41:13] Speaker 04:
the exemption, the FOIA exemption question.

[00:41:15] Speaker 04:
And if we disagree with the government about the FOIA exemption, then the material has to be released.

[00:41:20] Speaker 04:
But then, but that's not true, right?

[00:41:22] Speaker 04:
Because some of this is grand jury material, correct?

[00:41:26] Speaker 02:
Yeah, that's correct, Your Honor.

[00:41:27] Speaker 02:
I apologize.

[00:41:29] Speaker 04:
It would have been really helpful if you told us that.

[00:41:33] Speaker 02:
We were simply responding to the arguments raised in plaintiffs opening brief.

[00:41:36] Speaker 02:
So my apologies.

[00:41:38] Speaker 04:
The plaintiffs asked for this material to be unredacted.

[00:41:43] Speaker 04:
Don't they?

[00:41:47] Speaker 04:
That's the relief they want.

[00:41:48] Speaker 04:
They want the material unredacted.

[00:41:50] Speaker 04:
Correct.

[00:41:52] Speaker 04:
And so you never said in the brief, I mean, if we hadn't looked at these in camera, we might've issued an order requiring them to be unredacted, not having any idea that they're grand jury materials.

[00:42:05] Speaker 02:
So I'm just reviewing the material right now, Your Honor.

[00:42:08] Speaker 02:
And it looks like the information that was withheld under Exemption 3 is limited to one particular passage.

[00:42:22] Speaker 04:
OK.

[00:42:23] Speaker 04:
So your position is, even if we disagree with you about the FOIA exemption question, that particular passage can't be unredacted because it's grand jury material, right?

[00:42:32] Speaker 02:
That's correct.

[00:42:33] Speaker 04:
OK.

[00:42:34] Speaker 04:
Thank you.

[00:42:35] Speaker 01:
All right.

[00:42:38] Speaker 01:
Mr. Toppick, why don't you take two minutes and answer any questions?

[00:42:43] Speaker 03:
Sure.

[00:42:44] Speaker 03:
I can clarify the grand jury point.

[00:42:46] Speaker 03:
If we look at JA 769, these are a series of false statement declination decisions.

[00:42:52] Speaker 03:
For some of those statements, the government asserted B3 for grand jury over the content.

[00:42:58] Speaker 03:
And we have not challenged the grand jury redactions.

[00:43:02] Speaker 03:
So those particular passages

[00:43:04] Speaker 03:
even if the court agreed with us on everything, would remain unredacted.

[00:43:09] Speaker 03:
Other ones of those false statement declination analyses are only withheld based on the privacy exemption or also on the B5 exemption, which has since gone away.

[00:43:20] Speaker 03:
The Judge Walton rule against the government and they did not change it.

[00:43:23] Speaker 01:
All right.

[00:43:24] Speaker 01:
Thank you.

[00:43:24] Speaker 01:
Thank you for that.

[00:43:26] Speaker 03:
Just briefly, on the false statement points,

[00:43:31] Speaker 03:
We were working from the government's response, which said that information about these individuals had elsewhere been disclosed.

[00:43:38] Speaker 03:
If that is not the case, then I would just ask that the court take a close look at whether there is at least some information about the false statement charges that can be released that would shed light on how the decision was made without revealing who the person was.

[00:43:54] Speaker 03:
So there may be a way to do that.

[00:43:56] Speaker 03:
There may not.

[00:43:57] Speaker 03:
But I think there could be something useful to the public that would not implicate those privacy concerns.

[00:44:07] Speaker 03:
And then on the public figure question, I didn't have a full answer in the first time around.

[00:44:17] Speaker 03:
There are a couple of cases.

[00:44:19] Speaker 03:
The Ross Perot case, which was Nation Magazine, he was a candidate for office.

[00:44:25] Speaker 03:
In Fund, there is language saying that corporate officials perhaps could be subject to diminished privacy interest.

[00:44:32] Speaker 03:
It is absolutely correct that no cases yet held that, but that door is at least open.

[00:44:38] Speaker 03:
Ultimately, I don't know that it's going to matter because regardless of who the person is, the information that would shed light on how these decisions were made is at the core

[00:44:47] Speaker 03:
FOIA public interest.

[00:44:50] Speaker 01:
Well, not at the total abandonment of privacy interests.

[00:44:57] Speaker 03:
Correct.

[00:44:57] Speaker 03:
But to the extent the privacy rights have been diminished and the information goes to the core of FOIA's purpose, then the public interest would outweigh the privacy interest.

[00:45:08] Speaker 03:
I mean, you could always in a situation like this find

[00:45:11] Speaker 03:
that there's going to be some invasion of privacy.

[00:45:14] Speaker 03:
Because if there wasn't, it would mean the information's already known, there's nothing new to be learned, and so no public interest would be served.

[00:45:21] Speaker 03:
And so you can't really get to accrue public interest analysis, which this court described as weighty, without recognizing that there may be at least some amount of invasion of privacy, albeit a diminished one.

[00:45:35] Speaker 01:
All right, any more questions?

[00:45:37] Speaker 01:
Thank you.

[00:45:39] Speaker 01:
All right, thank you.