[00:00:00] Speaker 05: Case number 20-5131, Protect Democracy Project, Inc., a balance, versus National Security Agency. [00:00:08] Speaker 05: Mr. Abadi, for the balance, Ms. [00:00:10] Speaker 05: Haifez, for the appellee. [00:00:14] Speaker 01: Good morning. [00:00:15] Speaker 01: Good morning. [00:00:16] Speaker 01: Mr. Abadi, you may proceed when you're ready. [00:00:19] Speaker 04: Thank you, Your Honor. [00:00:20] Speaker 04: May it please the court, I'm Michael Abadi on behalf of the Protect Democracy Project. [00:00:26] Speaker 04: At page 78 of the joint appendix, the district court noted that it understands and shares our concern that, quote, otherwise responsive and unprotected materials may be incorporated into a document with material protected by the presidential communications privilege, thus rendering the entire document protected from disclosure. [00:00:46] Speaker 04: The court noted on that page of footnote five that it was venturing no opinion as to whether the information we seek here, which was featured in the Mueller report, [00:00:56] Speaker 04: concerning a conversation between the President and the Director of the NSA was or was not protected by the Presidential Communications Privilege. [00:01:06] Speaker 04: That is all we are asking for at this stage in the case is for the District Court to be able to make a determination about whether the information disclosed in the Mueller report as probable obstruction of justice by the President of the United States is or is not within the bounds of the President. [00:01:23] Speaker 03: A probable what? [00:01:26] Speaker 04: The Mueller report described this as the third instance of obstruction of justice by the President of the United States. [00:01:32] Speaker 03: The Mueller report also says that Admiral Rogers said that he's never been asked anything immoral or inappropriate or illegal. [00:01:43] Speaker 03: What do you do with that? [00:01:45] Speaker 04: Well, Your Honor, we believe that demonstrates why this wasn't, in fact, an exercise of the President's Article 2 decision-making responsibility. [00:01:52] Speaker 04: The Mueller report did in fact describe this as one of the bases on which obstruction of justice could be charged, and then went on to say if Mr. Mueller could have said that no charge was appropriate, he would have done so, but he couldn't. [00:02:07] Speaker 03: What did the Attorney General say? [00:02:11] Speaker 04: Well, Your Honor, the Attorney General's characterization of the Mueller report is in some sense is inconsistent with what the report itself says because [00:02:20] Speaker 04: Again, Mr. Mueller's report says, and we've cited this. [00:02:23] Speaker 03: The attorney general said there wasn't sufficient evidence to make out obstruction of justice. [00:02:29] Speaker 03: You say it's probable. [00:02:31] Speaker 03: The Mueller report didn't say that. [00:02:33] Speaker 03: The attorney general refuted it. [00:02:35] Speaker 03: So where do you get your idea from? [00:02:39] Speaker 04: Your honor, we do believe it's highly, whether it technically qualifies as the crime of obstruction of justice. [00:02:44] Speaker 04: We believe it will be highly inappropriate for the president of the United States [00:02:48] Speaker 04: to lean on the head of an intelligence agency in order to do what clearly seemed to be a personal favor to deal with trouble of an investigation into his own administration. [00:03:02] Speaker 03: The investigation was interfering with his foreign relations efforts with Russia. [00:03:09] Speaker 03: Was that proper for the president to make that statement to the head of national security? [00:03:17] Speaker 03: Your honor, we don't believe that the asking issue here is proper, but I will say- Was it proper for the president of the United States to inquire of the status of the investigation when he had in mind possibly firing the FBI director? [00:03:35] Speaker 04: To inquire, I'm sorry, your honor, to inquire of whom? [00:03:39] Speaker 03: Inquire of the head of NSA, which started the Russia investigation. [00:03:46] Speaker 03: The president has the authority to fire the FBI director, correct? [00:03:52] Speaker 04: The president did, in fact, fire the FBI. [00:03:54] Speaker 03: But he has the authority to do this, head of the executive branch. [00:03:58] Speaker 03: Yes, Your Honor. [00:03:58] Speaker 03: Again, we're not- Does he have the authority to make inquiries that relate to whether he should keep the FBI director on board? [00:04:06] Speaker 04: Your Honor, as we understand the conversation here, it was whether the president had the authority to ask the NSA director to make public statements refuting an ongoing investigation. [00:04:15] Speaker 04: Our argument is that this is not part of the president's article to responsibility, but we didn't get a determination on it. [00:04:21] Speaker 04: Our argument before this court this morning is we believe we're entitled to ask the court to take a look at that portion of the memo and determine whether it is or is not protected by the privilege. [00:04:31] Speaker 04: The district court did not disagree with us on the merits. [00:04:34] Speaker 04: It acknowledged our concern, but it said it was not going to reach that issue. [00:04:38] Speaker 04: And I will note the government [00:04:40] Speaker 01: Mr. Boddy, do you concede on appeal that at least some of some part of this memo is privileged? [00:04:48] Speaker 04: We're not disputing the district court's finding that there are some portions of the memo that apparently relate to Article 2 functions. [00:04:55] Speaker 01: And you say that this is a good vehicle to modify what you [00:05:02] Speaker 01: referred to as the blanket rule against segregability for presidential communications privileged documents. [00:05:10] Speaker 01: But I don't think you dispute that this memo really documented this one conversation. [00:05:17] Speaker 01: Is that right? [00:05:19] Speaker 04: Well, we don't dispute, Your Honor. [00:05:21] Speaker 04: Of course, our knowledge of the memo has evolved greatly throughout the case. [00:05:25] Speaker 04: Originally, the government refused to disclose its existence. [00:05:28] Speaker 04: And then in the series, after it had withdrawn the Glomar, [00:05:31] Speaker 04: claim in light of the Mueller report, it followed two declarations about the memo and we persuaded the court to look at it in camera. [00:05:38] Speaker 01: I understand that when the court looked at it in camera and made the comments that you referred to, but it seems that everybody's on the same page that this memo is in fact just a portion of the conversation. [00:05:51] Speaker 01: It's only documenting one [00:05:54] Speaker 01: basically one interaction over Russia and the president's perception that his interactions with Russia were hobbled by what he thought was an illegitimate investigation. [00:06:04] Speaker 01: So I'm just not sure that I see why this is a good vehicle for probing more generally [00:06:13] Speaker 01: into the question whether one might, for example, have a memo that is far-ranging and covers many different topics, and the memo unit would be in some way unrelated to the material triggering the presidential communications privilege. [00:06:30] Speaker 01: That doesn't seem to be this case. [00:06:33] Speaker 04: Well, Your Honor, we do not know, as this Court has said, from Vaughan on down, for it is a notoriously one-sided type of inquiry. [00:06:40] Speaker 04: Well, we haven't seen the memo, so I can't tell you whether or not I believe [00:06:44] Speaker 04: the memo in camera could be segregated quite easily. [00:06:46] Speaker 04: I mean, it was our view that it likely could be, and we say it would elevate form over substance to say what would matter here is if Mr. Leggett wrote one memo about the conversation or two, one memo that talked about the other aspects that the district court examined and found protected and a separate one about the unique part of the conversation that was the most unusual thing he had seen in 40 years of government service. [00:07:11] Speaker 04: He could quite easily have done that [00:07:12] Speaker 04: And then the government wouldn't be having, wouldn't be making the same argument. [00:07:16] Speaker 04: It's never made an argument about why this ask is protected by the presidential communications privilege. [00:07:22] Speaker 04: So we don't think it should matter whether there's one or two, but more to the point, your honor, this court has never considered in any of the cases talking about presidential privilege communication, the language of 552B from FOIA requiring segregability in all cases. [00:07:37] Speaker 04: And I don't believe it's ever had a vehicle. [00:07:39] Speaker 01: We considered that. [00:07:40] Speaker 01: I believe we considered that in, [00:07:44] Speaker 01: I know. [00:07:45] Speaker 01: We have definitely considered Judicial Watch 2, Sealed Case. [00:07:49] Speaker 04: No, Your Honor. [00:07:50] Speaker 04: Sealed Case was a grand jury case. [00:07:52] Speaker 01: Right. [00:07:53] Speaker 01: No foyer. [00:07:54] Speaker 01: Right. [00:07:55] Speaker 04: Judicial Watch 1, Your Honor, if I may, I'm sorry. [00:07:57] Speaker 04: I don't mean to cut you off. [00:07:58] Speaker 04: But Judicial Watch 1 was not about whether portions of the memo were protected or not. [00:08:04] Speaker 04: The question there was whether a memo was a pardon [00:08:08] Speaker 04: attorney's office that never went to the White House. [00:08:10] Speaker 01: No, I'm thinking of a case that the parties didn't cite, which is another judicial watch case from this court from 2005, and that's 432, Fed 3rd, 366, in which the court does tee up that very language about non-segregability and addresses it. [00:08:35] Speaker 01: holding that it's the nature of the privilege, in the context of a work product, not a presidential communications, but the argument is that the work product doctrine shields the materials [00:08:54] Speaker 01: Because of the nature of the you know the attorney's function and the analogy here would be that the presidential communications privilege shields the materials because of the nature of the president's function. [00:09:08] Speaker 01: And so once you've determined that [00:09:10] Speaker 01: that the document has that relationship to the basis for the privilege that segregability, it's the scope of the privilege that displaces the statutory requirement or that is commensurable with the statutory requirement of segregability. [00:09:36] Speaker 04: I'm sorry, Your Honor. [00:09:37] Speaker 04: I didn't mean to cut you off. [00:09:38] Speaker 04: Once again, [00:09:39] Speaker 04: We are not arguing here for a way to overcome the privilege. [00:09:43] Speaker 04: If the district court had been considering this portion of the memo and said, this is covered by the privilege connected to Article II decision-making, this material of privilege, we wouldn't be making the argument for it today. [00:09:55] Speaker 04: We're here because the court felt it couldn't do that. [00:09:59] Speaker 04: And it requires in all instances in 552 that any reasonably segregable portion of a record shall be provided to any person [00:10:09] Speaker 04: requesting such record after deletions of portion, which are exempt under the subsection. [00:10:15] Speaker 01: So are you arguing that this panel, consistent with Judicial Watch 2 and in-rate sealed case, could hold that on the facts here, the district court should have conducted a seguability analysis? [00:10:29] Speaker 01: Are you only preserving your argument for Ambach? [00:10:32] Speaker 04: Well, I would say two things, Your Honor. [00:10:34] Speaker 04: Although this court has said in Judicial Watch 1 and 2, [00:10:37] Speaker 04: that it applies to the whole document. [00:10:39] Speaker 04: It has never been called upon to apply that reasoning in a case. [00:10:44] Speaker 04: As the panel, this court could consider that and decide whether or not it is binding. [00:10:48] Speaker 04: Obviously the district court here felt it was. [00:10:51] Speaker 04: If this court feels it is so bound as well, we would eventually be likely to ask the court on Bonk to reconsider that. [00:10:59] Speaker 01: But I do- And what's your argument that it's not binding? [00:11:01] Speaker 04: Well, again, the court has never actually applied it. [00:11:04] Speaker 04: In judicial watch one, the court [00:11:06] Speaker 04: cited in race field case which was again a grand jury case and it was describing the nature of the presidential communications privilege and it said in passing it applies to the whole document it never again touches on that or applies that to the facts of that case and in fact if you look at in race field case in grand jury case the court there vacated and remanded and sent that case back to the district court [00:11:29] Speaker 04: for a determination on a line by line basis of whether a need can overcome any of the privileged information. [00:11:36] Speaker 01: But we do have a holding that the need is not relevant in a FOIA case. [00:11:39] Speaker 01: I know you've argued to the contrary, but that seems pretty clear. [00:11:43] Speaker 04: Well, but again, Your Honor, I'm not suggesting that's a direct application from Inray Sealed Casey here. [00:11:48] Speaker 04: We're not asking to overcome the privilege. [00:11:51] Speaker 04: We're asking for the routine of applicability of FOIA segregation analysis here. [00:11:56] Speaker 04: And my point is, to the extent judicial watch relied on a case that did, [00:11:59] Speaker 04: ultimately remand for a line by line that I don't think it was a fair extension of that doctrine to say. [00:12:06] Speaker 03: The first instance, the first historical instance of invocation of the presidential communications privilege did not make any distinction of the segregability of any of the material that the president refused to disclose. [00:12:27] Speaker 03: You know who the president was? [00:12:29] Speaker 04: Well, I know that the Nixon case is the first time that the Supreme Court considered. [00:12:34] Speaker 03: No, no, no, no. [00:12:35] Speaker 03: George Washington withheld from Congress all the material that resulted in the Jay Treaty, and he refused to provide any of it, segregable or not. [00:12:51] Speaker 04: Your Honor, again, we are not disputing that there are circumstances where [00:12:56] Speaker 04: the presidential communications privilege might apply broadly to an entire document. [00:13:01] Speaker 04: And had the district court determined that here, again, our argument would be very different right now, but we at least would have had the court consider the question of whether the specific information here, which again is so serious that it was featured in the Mueller report, whether that is in fact covered by the privilege that this court has said over and over, must be construed as narrowly [00:13:22] Speaker 04: as is necessary only to protect legitimate article two decision making and that there is a potential for serious abuse of this privilege to allow for the withholding of information that would show wrong during the high level executive branch. [00:13:37] Speaker 01: So Mr. Bhatta, you seem to be weaving together two [00:13:43] Speaker 01: different strands, one, the misconduct cases, and two, segregability. [00:13:50] Speaker 01: And is the basis for your claim of segregability is that there's reason to think that part of this memo documents potential obstruction of justice, and that to the extent that it may, that is [00:14:12] Speaker 01: no longer privileged, and if it is no longer privileged, then it's as distinct portion of the memo that should be segregated and released? [00:14:23] Speaker 04: No, Your Honor. [00:14:24] Speaker 04: Let me try to be as clear as I can about our position. [00:14:26] Speaker 04: We have a two-fold position, our primary argument and our alternate argument. [00:14:30] Speaker 04: Our primary argument comes directly from the text of FOIA, and it is that in all FOIA cases, regardless of the privilege, segregability is required. [00:14:39] Speaker 04: We think that's clear from 552. [00:14:41] Speaker 04: And we also believe, Your Honor, that it's clear from the Euphoria Improvements Act of 2016, which put an additional burden on agencies to release anything not inconsistent with the underlying exemption in book and to take additional acts to segregate and release information. [00:14:55] Speaker 01: That's a primary argument. [00:14:57] Speaker 01: And that seems foreclosed by precedent, unless I'm missing something. [00:15:00] Speaker 01: And your secondary argument? [00:15:02] Speaker 04: The secondary argument is that this court could [00:15:05] Speaker 04: recognized in a unique subset of cases that's never before been addressed by this court, that that segregability is allowed in the very narrow context where there's credible suggestion that non-privilege, not privileged material, but non-privilege material appearing in a document would document misconduct. [00:15:28] Speaker 04: This court under FOIA in various exemption contexts has grafted misconduct exceptions [00:15:34] Speaker 04: that allow for special rules, usually to overcome an exemption claim. [00:15:39] Speaker 04: We are asking for something narrowly. [00:15:41] Speaker 04: We are saying that if there is adequate basis for believing the documents would show, and that are nonprivileged and would show misconduct by high-level officials, that the normal rule of FOIA segregability, compelled by the plain language of the statute, would return. [00:15:59] Speaker 04: That's all we're asking for. [00:16:00] Speaker 04: We are not asking here for a rule that would allow us to get something the district court were to sit or to examine and say is validly covered by the privilege. [00:16:09] Speaker 01: You're asking for something in a way that's more aggressive and that seems difficult to administer in the sense that we wouldn't even recognize the privilege based on this court's [00:16:25] Speaker 01: characterization of the president's comments as potential obstruction of justice? [00:16:37] Speaker 04: Well, what this court has said in numerous other cases involving misconduct and how it implicates Florida, excuse me, what numerous district courts within this circuit have said applying this court precedent is that all that's required is a quote adequate basis for believing that [00:16:52] Speaker 04: material sought would shed light on government misconduct. [00:16:56] Speaker 04: And in such instances, again, under the deliberative process, for example, the privilege. [00:17:01] Speaker 01: Right. [00:17:01] Speaker 01: But that's been in the deliberative process privilege. [00:17:04] Speaker 01: And here we're talking about presidential communications privilege, which we know is different and more robust. [00:17:14] Speaker 01: I mean, it's one thing if [00:17:19] Speaker 01: the basis for the privilege, which here is communications about the footing on which the president is able to negotiate with another national government. [00:17:35] Speaker 01: If that's one part, and then if in another part of the same conversation, the president says, and how are we coming with the cocaine trafficking operation out of the [00:17:48] Speaker 01: you know, map rum, that would be an easier call, it seems to me, to say, well, that's not an exercise of the president's Article II authorities. [00:18:00] Speaker 01: But here, the notion that what you're referring to as the misconduct evidence within the memo versus the rest of it, it's also, you know, [00:18:17] Speaker 01: even granting that it's obstruction of justice, it's obstruction of justice that's intertwined with the exercise of Article II, topically Article II powers. [00:18:30] Speaker 01: And you can say, well, as a formal matter, once it's obstruction of justice, it's no longer a permissible Article II. [00:18:34] Speaker 01: But asking us at the threshold to make that determination seems extraordinary. [00:18:39] Speaker 04: Well, Your Honor, again, we're asking that the district court be allowed to consider [00:18:44] Speaker 04: whether the contents of the memo that relate to this conversation, which the government is officially disclosed through the Mueller report, which has been revealed, this is not trying to pry into some conversation that the public doesn't already know about, whether that has a nexus to an article two decision-making responsibility. [00:19:02] Speaker 04: I wanna be clear that if I answered your prior question, we are not asking that if it is obstruction, the privilege evaporates and it goes away. [00:19:11] Speaker 04: We are not disputing that there could be some things [00:19:14] Speaker 04: that we would characterize as misconduct but are legitimately privileged and are protected. [00:19:19] Speaker 04: That is why what we're asking for is very different than the misconduct exception in the deliberative process privilege. [00:19:25] Speaker 04: We think the normal default rule in all FOIA cases should apply here even with this privilege. [00:19:31] Speaker 04: If there are portions that are reasonably segregable that do not fall within the privilege, because for example, not every communication with the president, it's clear from this court's doctrine, [00:19:43] Speaker 04: is by definition always covered. [00:19:46] Speaker 04: It has to be have some nexus to a function or a decision that is committed to the president under article two. [00:19:53] Speaker 04: If the president is having conversations that relate to normal government operations that don't call for article two responsibilities, that is not within the scope of the privilege. [00:20:03] Speaker 04: And it has to be, there are other privileges that may protect it, deliberate process, it may be classified. [00:20:08] Speaker 04: There are all sorts of other ways that it might be protected, but the unique nature of this [00:20:12] Speaker 04: very powerful privilege is that there has to be a nexus to an Article II function. [00:20:18] Speaker 04: And here, we're simply asking for courts to be able to do what they do every day in cases that involve equally serious things, such as information classified under national security laws, information protected by mandatory withholding statutes, like sources and methods of intelligence gathering, all of those things courts routinely deal with and conduct segregability analysis, just as FOIA parties. [00:20:42] Speaker 01: All right, do my colleagues have further questions for Mr. Abbate? [00:20:46] Speaker 02: Just one, if I might. [00:20:49] Speaker 02: With regard to presidential communications privilege, does section five, does exemption five do anything that the constitution doesn't already do? [00:21:02] Speaker 04: Well, of course, this is incorporated into FOIA through exemption five, your honor, and there is no, [00:21:10] Speaker 04: Article two language, for example, that compels the privilege to work in a particular way. [00:21:15] Speaker 04: And so exemption five incorporates into FOIA the judicial and common law construction of the presidential communication privilege and allows agencies to assert that as an exemption under FOIA. [00:21:27] Speaker 04: I haven't heard, and I'm not aware of any authority saying that article two itself compels, for example, this whole document rule. [00:21:35] Speaker 04: There may well be separation of powers concerns that motivated the recognition of the privilege. [00:21:40] Speaker 04: But again, this derives from common law. [00:21:42] Speaker 04: And the important point here is Congress, of course. [00:21:46] Speaker 02: You say common law, but a statute can obviously preempt common law. [00:21:52] Speaker 02: Statute can't preempt constitutional law. [00:21:54] Speaker 02: So is it your position that this question of presidential communications privilege is non-constitutional common law? [00:22:02] Speaker 02: Or would you kind of concede that it's constitutional law? [00:22:06] Speaker 04: We concede it has its roots in separation of powers. [00:22:09] Speaker 04: No question here. [00:22:10] Speaker 04: but we do dispute the notion that the constitution specifically prescribes, for example, that the entire document has to be protected versus just portions of it that bear on Article II responsibilities. [00:22:21] Speaker 04: And our view is Congress is permitted in FOIA to override it to the extent that what Congress is doing doesn't violate Article II directly. [00:22:30] Speaker 02: Okay, that's all for me. [00:22:32] Speaker 04: Thank you, Your Honor. [00:22:33] Speaker 00: Judge Randolph? [00:22:37] Speaker 01: All right. [00:22:37] Speaker 01: We'll give you Mr. Abbate a couple of minutes for rebuttal and meanwhile we'll hear from Ms. [00:22:42] Speaker 01: Heifetz for the government. [00:22:49] Speaker 01: We're not hearing you. [00:22:54] Speaker 05: Good morning, Your Honors. [00:22:55] Speaker 05: I had contacted the clerk's office because of a phone issue, a connection issue. [00:23:01] Speaker 05: and was hoping to be brought in on a different line that I communicated with the deputy. [00:23:05] Speaker 05: Is that possible? [00:23:06] Speaker 05: I apologize for slowing the argument. [00:23:09] Speaker 00: Yeah, let's ask. [00:23:11] Speaker 00: She's listening, so I think she's going to hear this. [00:23:19] Speaker 05: If not, we can continue, and then I apologize. [00:23:25] Speaker 00: So you would want to be brought in? [00:23:30] Speaker 05: The 617 number, 617-794-2665. [00:23:33] Speaker 01: And how does it work from your end? [00:23:36] Speaker 01: They call you? [00:23:36] Speaker 01: You don't call in? [00:23:37] Speaker 05: No, I believe I have to be brought in. [00:23:41] Speaker 00: OK, so are you in a waiting room now? [00:23:43] Speaker 00: Did you call in to the call? [00:23:46] Speaker 05: No, I am here on this phone, but we put back in. [00:23:51] Speaker 03: We can hear you just fine. [00:23:53] Speaker 05: Yeah, you can. [00:23:54] Speaker 05: continue here i cut out uh... that i apologize and i'm sure that at that point they'll be able to bring it back here [00:24:29] Speaker 05: I think that I'm back. [00:24:31] Speaker 05: Yes. [00:24:33] Speaker 05: Okay. [00:24:34] Speaker 05: Wonderful. [00:24:34] Speaker 05: Thank you so much for your patience. [00:24:35] Speaker 05: I really appreciate it. [00:24:37] Speaker 05: It's been a morning of some technical struggles, but I very much appreciate your patience. [00:24:42] Speaker 05: Um, you know, as the court has noted this morning, this case is about a single conversation that took place between the president of the United States and the director of the national security agency. [00:24:56] Speaker 05: And in that back and forth, it's the district court stress. [00:25:00] Speaker 05: was about a set of, a central set of interrelated issues related to presidential deliberations, specifically matters of foreign relations and national security, namely intelligence gathering. [00:25:12] Speaker 05: So I think this court has accurately characterized this morning what this back and forth looked like, it's integrated and more banic feature. [00:25:21] Speaker 05: And as plaintiffs initial on bond petition recognize, this case really is governed by case law. [00:25:29] Speaker 05: under this court's decisions, under the Supreme Court's decision, set of decisions in the mixing cases, under this court's precedent, outside of FOIA, as well as in the FOIA cases, taking all of that together, there's nothing about the memo that takes it outside the presidential communications privilege. [00:25:49] Speaker 05: What Teresa is really asking the court to do is to take a conversation where, again, the president is asking the NSA director [00:25:59] Speaker 05: Essentially, as the Mueller report describes the key portion that scientists are focused on, about news stories linking with Russia and whether the NSA director can make a public statement about those. [00:26:15] Speaker 05: And obviously, presidents ask, heads of agencies ask, White House counsel ask, we'll see whether various courses of conduct [00:26:27] Speaker 05: are possible, and sometimes the answer is no, that something is inappropriate or even unlawful. [00:26:32] Speaker 05: And that's not what takes the conversation that the president himself or herself is holding with a top advisor outside the realm of the presidential communications privilege. [00:26:43] Speaker 05: We want the advisor to be able to answer those questions honestly, accurately, candidly, even when the answer is no, that something's unlawful or something's inappropriate or whatever the case may be. [00:26:54] Speaker 02: Let me ask you about a hypothetical. [00:26:58] Speaker 02: Imagine there's a thousand page report that does not qualify for any FOIA exemptions, including does not qualify for presidential communications privilege. [00:27:15] Speaker 02: And imagine that the executive branch wants to nonetheless [00:27:19] Speaker 02: not disclose, they want to make sure this report is not disclosable under FOIA in the future. [00:27:27] Speaker 02: So they add one sentence to that thousand page report that clearly qualifies for the presidential communications privilege. [00:27:37] Speaker 02: Is it your position that the entire thousand page report becomes privileged? [00:27:46] Speaker 05: Your Honor, the thousand page report [00:27:48] Speaker 05: you know, obviously many times council get in front of you stressed by that case is not the case. [00:27:54] Speaker 05: I just want to say at the outset, I know, I know very applicable here, but no, I think you're on there. [00:28:01] Speaker 05: I don't know that a thousand page report is even a single record. [00:28:04] Speaker 05: I mean, we need to step back and that's our other case. [00:28:08] Speaker 02: We have that case too. [00:28:09] Speaker 05: That's really an important point here. [00:28:11] Speaker 05: I mean, we have to recognize that there's no dispute here. [00:28:13] Speaker 05: The district court looked at this document named camera. [00:28:17] Speaker 05: and understood that we're not talking about a thousand page report, a 500 page report, anything like that. [00:28:22] Speaker 05: We're talking about a single conversation between the president and the head of MFA. [00:28:27] Speaker 02: I know, but Ms. [00:28:28] Speaker 02: Shapes, let me interrupt you. [00:28:31] Speaker 02: I know that this is not this case. [00:28:33] Speaker 02: It may not be outcome, my question may not be outcome determinative for this case. [00:28:37] Speaker 02: I think you're [00:28:38] Speaker 02: on awfully strong ground in this case. [00:28:41] Speaker 02: But I am just trying to figure out what the breadth of this very broad privilege is, understandably and justifiably broad privilege. [00:28:50] Speaker 02: Assume that the 1,000-page report is one record. [00:28:53] Speaker 02: If that case were before us, does the one sentence make the other 1,000 pages presidential communication privileged? [00:29:03] Speaker 05: Your Honor, I don't even know what that would [00:29:06] Speaker 05: really mean to a thousand page report or not talking about a conversation that the president is a part of a back and forth and organic. [00:29:15] Speaker 05: So that means looking more like the allegations of the blanket where you're talking about something thrown in utterly by happenstance. [00:29:23] Speaker 05: And again, that's not the case, but that's important because I'm not sure that in that circumstance, I think we would think about [00:29:35] Speaker 05: Whether or not the whole of the document is properly understood and if the district court had looked at a document like that Well, it said these are separate records This has nothing to do with the other part where this isn't a presidential communication. [00:29:51] Speaker 05: There is uh, you know here what about where there it is It is one record. [00:29:59] Speaker 01: It's one, you know written by one author and it's [00:30:02] Speaker 01: It flows. [00:30:03] Speaker 01: So in that sense, it's been in the colloquial census one record, and it's all about a conversation with the president, but part of it is about you know baseball and part of it is about, you know, foreign relations. [00:30:17] Speaker 01: the position of the government is that the part about baseball, there's no obligation to segregate that as outside of what Article II and the common law developing the privilege protects. [00:30:34] Speaker 05: The Supreme Court in the Nixon case, for example, touched on the fact that even in a conversation with the president, you can have [00:30:41] Speaker 05: casual references that are important. [00:30:43] Speaker 05: And nobody thinks that. [00:30:44] Speaker 01: It's actually pretty hard to hear. [00:30:46] Speaker 01: The sound is bad. [00:30:48] Speaker 01: I've missed that. [00:30:51] Speaker 01: In the Nixon case, is this any better? [00:30:54] Speaker 01: Much better. [00:30:54] Speaker 05: I apologize for the visual, but as long as the audio is good. [00:30:58] Speaker 05: In the Nixon case, there's mention of the fact that even where you have casual reference, idle conversation, when it's the president himself talking and having a conversation with his top advisor, there's never been a case in which a court has suggested [00:31:11] Speaker 05: that the proper approach to determining whether the item is privileged is to go through that conversation line by line and assess whether you agree with or have concerns about a particular line. [00:31:25] Speaker 01: Now, you know. [00:31:26] Speaker 01: Well, we haven't had very many cases. [00:31:28] Speaker 01: So we have what you're relying on for your opposition to segregability, I gather, is the second judicial watch case, loving and the in race field case, right? [00:31:39] Speaker 01: for the non-segregability? [00:31:43] Speaker 05: Yes, in the segregability claim, I think it's important to recognize that in Henry Steele's case, there were materials that were entirely factual. [00:31:50] Speaker 05: And so the court really was confronted with the question of what is the scope of the privilege and recognized that it did apply. [00:31:59] Speaker 05: In the pardon cases, you have materials that have factual material in them that are not just [00:32:06] Speaker 05: necessarily precise things that were being advised about the deliberations themselves that are all of a piece. [00:32:13] Speaker 05: And here we have a conversation where everything is of a piece. [00:32:17] Speaker 05: It's a back and forth, it's an organic discussion. [00:32:20] Speaker 05: Right, exactly. [00:32:21] Speaker 01: So in the [00:32:25] Speaker 01: In Ray Seald's case, the back and forth was about, and that's sort of the origin of this line that everyone, the sentence that everyone, the in their entirety phrase that the subsequent cases referred to, but that was in the context of distinguishing deliberative process, which would cover the deliberations, but not the facts, and the presidential communications process, which more akin to work product, [00:32:52] Speaker 01: is covers facts that are part and parcel of the advice giving process. [00:32:59] Speaker 01: That's the only issue that was before the court in race field was this. [00:33:04] Speaker 01: Is it just the deliberation or is it the does it include the intertwined [00:33:10] Speaker 01: factual material, but none of these cases, as I read them, has gone broader to say where there is material that is neither factual nor deliberative, does it nonetheless somehow fall within the presidential communications privilege? [00:33:29] Speaker 05: We're not suggesting here today that purely private conversations about baseball that the president has [00:33:36] Speaker 05: you know, are cases that call for the application of the privilege. [00:33:41] Speaker 05: Again, per the Nixon case, even when idle conversation, there may be something that comes up that does, you know, take it outside the realm of purely private conversation. [00:33:52] Speaker 05: And it was recognized in the in the grand jury proceedings cases during the Clinton administration, actually the Clinton administration that [00:34:01] Speaker 05: You know, no court has ever declined to treat the president's own communication as something other than presumptively privileged because of the specific topic. [00:34:12] Speaker 05: You know, the president may well address personal matters within the context of official decision-making. [00:34:18] Speaker 05: And I think the point, Your Honor's making, this court has never been asked to go further afield. [00:34:23] Speaker 05: We're not asking the court to do that today. [00:34:25] Speaker 05: The nature of the conversation that's at issue in this case doesn't take us into that terrain. [00:34:31] Speaker 05: plaintiff's argument, however, would take us into a very difficult place contrary to presidential communications privilege. [00:34:41] Speaker 01: Can you just hold it a little closer because we're losing you even when it's just a few inches off. [00:34:45] Speaker 01: But in In Re Sealed, so what we do have here that would, I think, take us into new terrain is a different kind of claim of the relationship between the privilege and misconduct. [00:34:56] Speaker 01: In In Re Sealed, we defended [00:34:58] Speaker 01: the preservation of the presidential communication privilege even in cases involving misconduct by explaining that it was really important that there be communications about the misconduct so that there could be effective supervisory branch control over officials that might be abusing office. [00:35:14] Speaker 01: But that justification would not seem to apply in this case where the allegation is misconduct by the president himself. [00:35:25] Speaker 05: We go back to the Supreme Court [00:35:27] Speaker 05: Nixon cases, discussing the application of the privilege. [00:35:31] Speaker 05: The Nixon cases, we have a desire for information because we have a number of people who've been indicted, presidential assistants who've been indicted for criminal conspiracy and testimony about what they expect to find on those cases. [00:35:46] Speaker 05: And the Supreme Court never suggests, and in Ray Seale's case, Judge Walz's decision in Ray Seale's case for this court emphasizes this. [00:35:53] Speaker 05: The Supreme Court discussion never suggests [00:35:56] Speaker 05: that that means that the presidential communications privilege doesn't apply. [00:35:59] Speaker 05: That never means that the materials are not privileged. [00:36:03] Speaker 05: The question it raises is one of balancing and whether there's a need for the materials that overcomes the privilege. [00:36:11] Speaker 05: And what we know in FOIA is that we don't do that balancing. [00:36:15] Speaker 01: And that's where FOIA diverges from those cases. [00:36:19] Speaker 01: Even if there were a civil case, right? [00:36:21] Speaker 01: We've held, even if it were a civil case, that the showing of need could trump. [00:36:27] Speaker 05: Absolutely. [00:36:29] Speaker 05: Yes, in civil litigation, that's certainly a possibility. [00:36:35] Speaker 01: Were we wrong to say that a FOIA case, and I know we have so said, but to say that a FOIA case can never amount to a showing of need because people are just entitled to the information. [00:36:49] Speaker 01: But why is the, why is the, [00:36:54] Speaker 01: the policy behind its civil litigation stronger than the policy behind FOIA, which assigns to the public entitlement to the information? [00:37:04] Speaker 05: Well, so to be fair to you, Corey, it's not the court that's saying that. [00:37:08] Speaker 05: It's the Supreme Court saying it is FTC versus Grawley or whatever aircraft time and time again. [00:37:14] Speaker 05: I mean, this is a principle established by the Supreme Court with regard to FOIA. [00:37:19] Speaker 05: And it's based on the fact that the question, as written by Congress, [00:37:24] Speaker 05: for exemption five is whether the materials will normally be available. [00:37:29] Speaker 05: And so we don't get into the analysis of need and balancing. [00:37:33] Speaker 05: And we're not here comparing civil litigation with FOIA. [00:37:40] Speaker 05: I'm suggesting other civil litigation is stronger. [00:37:42] Speaker 05: It's that FOIA is a statutory construction and has these rules because it provides for broad public disclosure. [00:37:50] Speaker 05: In these other cases where we're dealing with grand jury subpoenas, trial subpoenas, other criminal prosecutions, or in the case of Dellums, civil litigation, we're still dealing with requests for review in camera, not necessarily limited to the court in camera. [00:38:09] Speaker 03: There's another answer that you're missing. [00:38:13] Speaker 03: which is that when there's a FOIA requester and the FOIA requester gets the information, there's no obligation for that person to even share it with another member of the public. [00:38:26] Speaker 03: He can take that information, tear it up and throw it in the waste can. [00:38:30] Speaker 03: There's absolutely no requirement whatsoever. [00:38:37] Speaker 05: That is certainly true, Your Honor. [00:38:39] Speaker 05: But I think here, part of the reason that there's such caution around the disclosure is because once something is disclosed under FOIA, from the government's perspective, the egg has been cracked and it's out there in the world. [00:38:52] Speaker 05: You can't unbreak the egg, so to speak. [00:38:56] Speaker 05: And material is public. [00:38:59] Speaker 05: Whereas in these other cases where there's a balancing going on, [00:39:03] Speaker 05: That's not true. [00:39:06] Speaker 05: It's a different approach. [00:39:07] Speaker 05: The point really is that we're not suggesting that the privilege shields this information in all contexts. [00:39:12] Speaker 01: We're just talking about a FOIA request. [00:39:14] Speaker 01: Right. [00:39:15] Speaker 01: Right. [00:39:16] Speaker 01: So if my colleagues don't have further questions, I think we'll hear a brief rebuttal from Mr. Abbate. [00:39:24] Speaker 01: Thank you for your patience this morning. [00:39:27] Speaker 01: No problem. [00:39:28] Speaker 01: Thank you for your argument. [00:39:30] Speaker 04: Thank you, Your Honors. [00:39:31] Speaker 04: And I will attempt to be very brief. [00:39:34] Speaker 04: Need is not the issue that is present before the court this morning because contrary to the government's implication, we're not arguing to overcome privileged information. [00:39:42] Speaker 04: That's where the need calculus comes in. [00:39:45] Speaker 04: We are arguing for the right to seek the release of non-privileged information in a document that happens to contain privileged information. [00:39:52] Speaker 04: That is the basic command of FOIA always. [00:39:56] Speaker 01: I know that you've briefed this and you've argued this at length. [00:39:58] Speaker 01: I'm not really sure that I follow how [00:40:01] Speaker 01: Words the president said in the context of the interplay between his interactions with a foreign government Russia and the activities of domestic intelligence agencies is not under the presidential is not at least prima facie under the presidential communications privilege. [00:40:25] Speaker 04: I'll try to respond as directly as I can. [00:40:29] Speaker 04: Not every presidential conversation is protected by this privilege under this court's case law. [00:40:34] Speaker 04: There has to be a nexus to Article II decision-making. [00:40:37] Speaker 04: We believe that Admiral Rogers' statements in the Mueller report show that the president wasn't making a decision about how to handle the Russia investigation. [00:40:46] Speaker 01: The president was asking, can you do anything [00:40:51] Speaker 01: So, and the answer I gather was no, that's information that a president then uses in going forward, no? [00:41:03] Speaker 01: I mean, I understand, obviously I understand your point that it wasn't just a question, it was a nudge, it was pressure, whatever, but [00:41:13] Speaker 01: But in terms of the logic of the privilege bracketing its propriety or not, just as a prima facie matter to say, hey, could you go, you know, assassinate my enemy. [00:41:26] Speaker 01: It's part of deliberate deliberation about how to run the country, even if it might also be [00:41:33] Speaker 04: Your honor, I tried to clarify this before. [00:41:36] Speaker 04: Our argument, this is not privileged, does not depend on whether it is or isn't misconduct. [00:41:40] Speaker 04: It depends on whether it is or isn't related to a decision the president must make. [00:41:46] Speaker 04: And I will note, again, the government has not argued [00:41:49] Speaker 04: At any point in this case, even though we've repeatedly briefed that the ask was outside the privilege, they've never argued it was within it. [00:41:55] Speaker 04: They argued other parts of the document were within it. [00:41:58] Speaker 04: The district court did not resolve this issue. [00:42:02] Speaker 04: She acknowledged our concern and said she was troubled by it, but footnote five at page 78 refused to decide that question. [00:42:10] Speaker 04: We believe we're entitled to a substantive examination of whether the ask is indeed connected and the court reviewed it in camera. [00:42:18] Speaker 04: We haven't seen it. [00:42:19] Speaker 04: But we have serious concerns about the government's characterization given, one, its Glomar response, and then two, the district court's finding that it said things about the memo that were not accurate. [00:42:30] Speaker 04: The district court noted it was concerned with the mischaracterization of the memo. [00:42:34] Speaker 04: And so we believe that it is entirely appropriate for the court to be able to answer the question of whether this, this was not a routine discussion of what does the NSA capabilities allow us to do with foreign adversaries. [00:42:48] Speaker 04: The director said this is unusual. [00:42:51] Speaker 01: Other questions from my colleagues? [00:42:53] Speaker 02: Not from me. [00:42:54] Speaker 02: Nope. [00:42:56] Speaker 01: All right. [00:42:56] Speaker 01: Thank you very much. [00:42:59] Speaker 01: The case is submitted.