[00:00:01] Speaker 00: Case number 21-5243, head out. [00:00:04] Speaker 00: Georgi Skelatsi, a balance, versus Robert S. Miller III, special counsel for the investigation into Russian interference in the 2016 presidential election and United States Department of Justice. [00:00:17] Speaker 00: Mr. Madden for the agenda for the police. [00:00:21] Speaker 03: Good morning, counsel. [00:00:22] Speaker 03: Good morning, your honor. [00:00:23] Speaker 03: Mr. Madden, please proceed when you're ready. [00:00:26] Speaker 01: With respect to Article 3 standing, the court initially held that Mr. Scalazza had plausibly pled that the implications of footnote 112 caused him business and reputational harm. [00:00:41] Speaker 01: But then it turned around and said, [00:00:43] Speaker 01: The Senate report, which was issued 15 months later, constituted an independent injury and therefore for prospective relief, uh, the harm from the footnote was no longer traceable. [00:00:55] Speaker 01: And for damages, he couldn't cover damages after the release of the Senate report. [00:01:02] Speaker 01: The Senate report did not harm Mr Scalazza. [00:01:06] Speaker 01: There's no defamation in the Senate report. [00:01:09] Speaker 01: In fact, Mr Scalazza uses the Senate report to show how the implications of footnote 112 were so defamatory. [00:01:17] Speaker 01: Also, this was not an argument that DOJ made for the district court. [00:01:21] Speaker 01: This is something the court on its own came up with. [00:01:24] Speaker 01: There wasn't any briefing on the issue. [00:01:26] Speaker 01: And so it was surprising. [00:01:31] Speaker 01: the Senate report to constitute defamation by implication, it would have had to stated that he was a Russian businessman, which it did not. [00:01:41] Speaker 01: That he had personal knowledge, implied they had personal knowledge about these tapes, which he did not. [00:01:46] Speaker 01: And then he took active steps to suppress those tapes, before the election, which he did not. [00:01:52] Speaker 01: The Senate report does no such thing. [00:01:54] Speaker 01: First of all, it includes the full text, which Footnote 112 did not do. [00:01:59] Speaker 01: And when you, the context of the full text takes the implications of defamation away. [00:02:06] Speaker 01: For example, Footnote leaves out Mr. Collatz saying, not sure of the content. [00:02:14] Speaker 01: A person in Moscow bragging about tapes, I'm sure it's no big deal. [00:02:18] Speaker 01: That's in the Senate report. [00:02:19] Speaker 01: That is not in Footnote 112. [00:02:23] Speaker 01: The Senate report shows the context that all Mr. Scalazza had was a phone call from a friend to him in Connecticut saying that his friend was at dinner and overheard somebody talking about tapes. [00:02:37] Speaker 01: That's the only knowledge he had, and then he took no action. [00:02:39] Speaker 01: He had no personal knowledge, the Senate report says, he took no action. [00:02:43] Speaker 01: And with respect to the Crocus Group, which gets mentioned in the footnote, the Senate report shows that that was something that was made after the Steele dossier came out. [00:02:52] Speaker 01: which wasn't out at the time of the tax or the election. [00:02:55] Speaker 01: And so he just said, well, I told him there was maybe something there. [00:02:58] Speaker 01: And that's all. [00:02:59] Speaker 01: It's in the Senate report. [00:03:00] Speaker 01: So it's not defamatory. [00:03:03] Speaker 01: The independent harm argument is illogical. [00:03:05] Speaker 01: It's like saying the New York Times defamed my client. [00:03:10] Speaker 01: But the Washington Post, 15 months later, defamed my client. [00:03:13] Speaker 01: And therefore, you have to dismiss the case against the New York Times. [00:03:15] Speaker 01: That's just not plausible. [00:03:17] Speaker 01: Can I ask you? [00:03:18] Speaker 01: Yes, sir. [00:03:19] Speaker 02: Go ahead. [00:03:21] Speaker 05: Can I ask you about your desire for access to the transcript? [00:03:25] Speaker 05: Yes, sir. [00:03:26] Speaker 05: I think that Judge Cooper reviewed the transcript when he denied reconsideration. [00:03:33] Speaker 05: Is that correct? [00:03:34] Speaker 05: Yes, sir. [00:03:35] Speaker 05: So if that's the case, why is your desire for the transcript, why is that claim not moot? [00:03:44] Speaker 01: Because this case is like any other case the DC Circuit has addressed. [00:03:49] Speaker 01: This is a case where the Department of Justice itself put into the public forum in a highly media feeding frenzy part of the transcript. [00:04:02] Speaker 01: And when it did that, it misquoted the transcript and it left out material parts. [00:04:07] Speaker 01: And so DOJ's arguments about policy, they have been waived. [00:04:13] Speaker 01: Why do you want the transcript? [00:04:17] Speaker 01: transcript like the Senate report gives the full context of what Mr Scalazza knew. [00:04:23] Speaker 01: If you can't get that from footnote 112, in fact, the things of my application, but the transcript as a whole does not. [00:04:30] Speaker 01: And that's why we think it's only fair to release the transcript of Mr Scalazza. [00:04:35] Speaker 01: The Mueller Mueller investigation is over. [00:04:39] Speaker 01: Um, and there's [00:04:43] Speaker 01: I mean, this footnote destroyed my client's livelihood. [00:04:45] Speaker 01: All he wants is to be able to go to the public forum and say, look, this is what I actually said. [00:04:50] Speaker 01: That's all on that issue. [00:04:54] Speaker 03: The whole point of getting the transcript is to disclose it. [00:04:57] Speaker 03: Yes, sir. [00:05:00] Speaker 01: The Senate report is also irrelevant to a statutory cause of action, which we have here under the Privacy Act. [00:05:07] Speaker 02: In its book, you know, the court. [00:05:11] Speaker 02: Say we agree with you that [00:05:13] Speaker 02: your client had standing on these equitable relief claims. [00:05:17] Speaker 02: Can you address whether you've even stated a claim for equitable relief under the APA or under the Privacy Act? [00:05:26] Speaker 02: There are some hurdles there in terms of whether there was a final action under the APA and whether this was, I guess, a group of records under the Privacy Act. [00:05:40] Speaker 01: under up by 52 AG 1 a person makes a request for amendment and is denied persons title to sue in court if it's in a system of records and DOJ argues that it's not in a system of records. [00:05:56] Speaker 01: But that is [00:06:00] Speaker 01: System of Records in the Privacy Act is not meant to be set in stone. [00:06:05] Speaker 01: So all it has to be is something that the agency uses to acquire information about a person by some identifier. [00:06:13] Speaker 01: And this is not 1974 when the Privacy Act was enacted. [00:06:19] Speaker 01: And so it just stretches credulity for DOJ to argue that this is not an system of records, because I'm sure. [00:06:26] Speaker 02: If I may, isn't the definition, it's a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. [00:06:42] Speaker 02: Correct, Your Honor. [00:06:43] Speaker 02: What's the Mueller report? [00:06:48] Speaker 01: Again, if there were a four year request for this information, DOJ would not go through page by page. [00:06:54] Speaker 01: I'm certain they have a model program that goes through, picks out the name, picks out any information you want on an individual. [00:07:03] Speaker 01: They don't go through this page by page. [00:07:04] Speaker 01: This is not 1974. [00:07:06] Speaker 01: Technology has come a long way. [00:07:08] Speaker 01: And particularly, this court has said, when it's a formal investigation, the interests of privacy are at their highest. [00:07:15] Speaker 01: In any case, [00:07:19] Speaker 01: doesn't agree with us on that. [00:07:22] Speaker 01: He's entitled to really find the APA now. [00:07:27] Speaker 01: Violation of 52G1C says the agency must keep records that are accurate and complete so that there's no adverse determination. [00:07:41] Speaker 02: But there has to be a final agency action. [00:07:43] Speaker 01: Yes, your honor. [00:07:46] Speaker 01: DOJ argues that the final agency act is the Mueller report, but that's not what we're arguing. [00:07:50] Speaker 01: We're arguing that the decision by the attorney general who would announce that any information about a non-target that would be harmful would be redacted. [00:07:59] Speaker 01: It wasn't. [00:08:00] Speaker 01: And that's the final agency decision. [00:08:02] Speaker 01: It may use this discretion under CFR 28600 to do that. [00:08:10] Speaker 01: So now it's true that in an APA case under that section, [00:08:15] Speaker 01: There's no de novo review as there is for 552A failure to amend. [00:08:21] Speaker 01: It's abuse and discretion standard. [00:08:23] Speaker 01: But there's nothing in 552AG that says there's no equitable jurisdiction over a violation of C. It says if there's violation of C, the district court shall have a jurisdiction. [00:08:38] Speaker 03: Can I go back to the grand jury materials, the access to the transcript just for a second? [00:08:43] Speaker 03: So if I'm understanding your argument, [00:08:45] Speaker 03: you only want the transcript so that you can disclose it, so that your client can disclose it to correct the record in the eyes of the public. [00:08:54] Speaker 03: Yes, sir. [00:08:54] Speaker 03: So does that mean that there's no independent interest in actually having the transcript itself as opposed to being able to go in and look at the transcript unless you can disclose? [00:09:06] Speaker 03: I mean, in some other cases, for example, somebody may want the actual transcript so that they can [00:09:11] Speaker 03: refresh their memory and they want to make sure that they have it right. [00:09:16] Speaker 03: And then the question comes up, well, you can go in and make notes. [00:09:18] Speaker 03: What's the difference between taking notes on it and actually getting the physical transcript itself? [00:09:23] Speaker 03: So I understand your argument. [00:09:25] Speaker 03: You don't care about actually having your hands on the transcript unless it can be disclosed. [00:09:30] Speaker 01: That's right, we have looked at the transcript, we have taken notes, we filed a declaration. [00:09:35] Speaker 01: But the argument is when the government itself discloses part of the transcript and defames the non-target, [00:09:43] Speaker 01: The target is entitled to have the transcript to protect themselves. [00:09:46] Speaker 03: I mean, in other words, one way to think about this is we have our NRA grand jury case in which we talked about access to the transcript so that the witness can go in and look at the transcript. [00:09:57] Speaker 03: And then we specifically carved out whether the opportunity to go in and look at the transcript also means that you actually get a physical copy of the transcript. [00:10:06] Speaker 03: We weren't even talking about disclosure of anything, the notes or the transcript itself. [00:10:11] Speaker 03: But here, you're not worried about that distinction because it doesn't do you any good to get the transcript itself unless you can actually disclose it. [00:10:20] Speaker 03: That's right. [00:10:20] Speaker 03: Yes, sir. [00:10:21] Speaker 01: I may touch on the damages claim under the privacy. [00:10:24] Speaker 02: Can I ask is that preserved because it was not my understanding that you had asked the district court for access to the transcript so you could disclose it specifically asked for the transcript be produced without restriction. [00:10:39] Speaker 05: Can you, can you point us to where you did that? [00:10:41] Speaker 05: And I know it might be hard to name it off the top of your head, but maybe in your reply with. [00:10:46] Speaker 01: I'm trying to find that if I can't, I'll send it to H-28J immediately. [00:10:51] Speaker 01: You did request the transcript itself and understrict it. [00:10:55] Speaker 01: It was denied by. [00:10:56] Speaker 05: I think the question is you requested the transcript so that you could disclose it. [00:11:03] Speaker 05: Yes, we requested an unrestricted copy. [00:11:05] Speaker 01: That's what you said. [00:11:06] Speaker 05: You made that argument. [00:11:08] Speaker 01: Yes, sir. [00:11:09] Speaker 01: We certainly did. [00:11:10] Speaker 01: If I may just touch on the damages claim that the court went on and said, even though there's Article III jurisdiction for this damages claim under the Privacy Act, that my client hadn't plausibly pled that the defamation was willful or intentional. [00:11:27] Speaker 01: When it did that, it applied a different standard than it did for standing. [00:11:32] Speaker 01: For standing, it looked at the bullet as a whole, said, yes, I agree. [00:11:36] Speaker 01: The implications of this whatnot are defamatory. [00:11:40] Speaker 01: on the damages issue is that no, it looked at the Senate reports just sort of almost the same. [00:11:45] Speaker 01: That's not what we're arguing. [00:11:46] Speaker 01: Once you show in the court agreed that there is a defamation by implication in that kind of a case, intent is presumed. [00:11:56] Speaker 01: So dismissing the case on the pleadings as a matter of law was improper. [00:12:01] Speaker 01: Even true statements can be that defamatory by implication and intent is irrelevant to those cases. [00:12:08] Speaker 01: And of course, you don't even need to prove actual intent in a Privacy Act case. [00:12:12] Speaker 01: It's just a little more than gross negligence or reckless disregard. [00:12:17] Speaker 01: So the court deployed two standards for looking at the intentional willful part of the Privacy Act, which is clearly wrong based on our theory of the case. [00:12:27] Speaker 01: And of course, the record shows there is a clear conflict of interest with the chief prosecutor in this case. [00:12:36] Speaker 01: She did not tell Mr. Mueller about her connection to Hillary Clinton, and she certainly had control of the pen, and she had motive and opportunity to do what footnote 112 did for political reasons, and my client was caught in the crossfire. [00:12:55] Speaker 03: Thank you, counsel. [00:12:55] Speaker 03: We'll hear from the, unless my colleagues have other questions, we'll hear from the government now. [00:13:05] Speaker 04: Mr. Janda. [00:13:06] Speaker 04: Thank you, your honor, and may it please the court, Sean Janda for the federal government. [00:13:09] Speaker 04: I'm happy to address whatever questions the court might have. [00:13:13] Speaker 04: But in the absence of more specific direction, I think it might be most natural to start with standing. [00:13:18] Speaker 04: And to do that, I think it's helpful to take a step back and really focus in on these statements that the plaintiff here claims are defamatory or inaccurate and the ones that he isn't challenging, even in the Mueller report itself. [00:13:32] Speaker 04: And so the plaintiff, I think, has not disputed that he was in communication with Michael Cohen in 2015 and 2016 before the election, that there was communication about building a potential Trump Tower project in Moscow, that Michael Cohen contacted plaintiff because plaintiff had experience with business ventures in Moscow, that he discussed with Michael Cohen the possibility of a meeting between Mr. Trump and the highest level of the Russian government. [00:13:59] Speaker 04: that he suggested to Michael Cohen that they send a letter to the mayor of Moscow and sort of intimated that the mayor of Moscow knew about the project and would support it. [00:14:07] Speaker 04: And he doesn't dispute that he in fact was texting with Michael Cohen in October 2016 about the rumors of these tapes. [00:14:15] Speaker 04: And so I think against that extremely large amount of conceivably true and non-defamatory information in the Mueller report, it's just really hard to believe [00:14:25] Speaker 04: that the specific alleged inaccuracies or the asserted sort of defamatory implications of the footnote have caused the plaintiff any concrete reputational injury. [00:14:35] Speaker 04: And I don't think that there's anything in the complaint or in the declaration that was filed in district court that really does the work of homing in on the [00:14:45] Speaker 04: sort of civic distinction between the alleged commentary statements and all the other statements and demonstrating which has caused. [00:14:53] Speaker 03: Are you are you focusing on the idea? [00:14:55] Speaker 03: It seems to me you could be making two arguments here. [00:14:57] Speaker 03: Maybe you're both. [00:14:58] Speaker 03: But one of them is, look, don't worry about the stuff that. [00:15:02] Speaker 03: the plaintiff is focused on, because there's other stuff that corrects any misimpression. [00:15:08] Speaker 03: So this is kind of trivial, because anybody who reads the entire Mueller report will see that on page 1, it says x. On page 994, it says y. And if you put the two of them together, you'll see that the correct information is actually in there. [00:15:20] Speaker 03: That's one way to look at it. [00:15:21] Speaker 03: The other way to look at it is to say that the thing that you're focused on actually isn't all that big a deal, period, because it's just little subtle distinctions, like the addition of the word sum and adding [00:15:31] Speaker 03: And having Russian or not Russian in there itself is not a big deal, regardless of corrective information that's elsewhere. [00:15:36] Speaker 03: Are you focusing on the fact that there's the correct information somewhere else? [00:15:41] Speaker 03: Or are you focusing on the fact that actually this isn't all that big of a deal? [00:15:45] Speaker 04: So I think there's a little bit of the first one, particularly with the US-based executive of a Georgian company description versus the Russian businessman description. [00:15:53] Speaker 04: And I think that the first one is accurate and is in the Mueller report. [00:15:55] Speaker 04: But more fundamentally, it's the second. [00:15:58] Speaker 04: And I think there's just a lot of information in the report. [00:16:01] Speaker 04: And so as I understand the plaintiff's sort of theory, it's kind of a time-based theory that after the report came out, he lost various business opportunities or other opportunities. [00:16:12] Speaker 04: And because there's so much true information in the report, I think that sort of time-based theory doesn't get him home. [00:16:19] Speaker 04: I think he has to demonstrate that it's the stuff that he's actually challenging in the report. [00:16:23] Speaker 03: Yeah, I mean, that seems like, [00:16:25] Speaker 03: Taylor made stuff to win on causation on the merits. [00:16:30] Speaker 03: He just not suffered any damages. [00:16:32] Speaker 03: And actually, if you look at it, it's really hard to believe that you can construct a theory by which that he can make out a claim for relief, because there's so many other intervening causes, and there's so many other things that factor into it. [00:16:44] Speaker 03: At standing, it seems like asking a lot to say, there's some stuff that the district court thought was actually problematic. [00:16:52] Speaker 03: in theory, at least at the motion to dismiss stage, because it's plausible. [00:16:56] Speaker 03: And then to say, yeah, but then there's other stuff, you know, elsewhere in this report, and then other stuff elsewhere out in the world, that actually, if somebody was omniscient and read everything in the world, they would realize that this isn't that much of a big deal. [00:17:10] Speaker 03: It seems like asking a lot at the [00:17:12] Speaker 03: at the standing stage on a motion to dismiss? [00:17:15] Speaker 03: I don't think so, Your Honor. [00:17:16] Speaker 04: I would point the court to Ezell Trucking, which is one of this court's cases that we cite in our briefs, which makes clear that to really make out a concrete injury at the standing stage in this reputational injury context, you do need to at least have the plausible facts that would give rise to those allegations or to the conclusion that you are harmed by the thing that you're challenging. [00:17:37] Speaker 04: And it might be that there are facts that the plaintiff could have alleged and that he hasn't. [00:17:42] Speaker 04: But I think just like any other plaintiff, it is the plaintiff's burden to come in and allege the relevant facts to get home, even on the standing piece. [00:17:50] Speaker 04: I mean, they might also be very good causation arguments if you get past standing. [00:17:54] Speaker 04: But certainly, I don't think you can skip over the standing analysis on the basis that it's just sort of hard for the plaintiff to do the work that the plaintiff has to do to make outstanding. [00:18:04] Speaker 04: And then, you know, I think the other piece of it is that even if you assume that there was some injury, in fact, some number of years ago when the Mueller report was released, as this report found, it's sort of hard to understand how that would be redressable by a judgment today. [00:18:21] Speaker 04: the intervening Senate report, which contains a lot of discussion about the plaintiff. [00:18:27] Speaker 04: And I think I searched the relevant volume, and his name appears in it more than 100 times. [00:18:31] Speaker 04: There are very extended discussions of contacts with Russia, of contacts with Michael Cohen, of the text message exchange that's referenced in footnote 112. [00:18:40] Speaker 04: And I'm not entirely sure what the plaintiff's specific theory of addressability is. [00:18:46] Speaker 04: But it's hard to understand how a judgment [00:18:50] Speaker 04: particularly when he could sort of distribute the Senate report to business contacts if he thinks that they're refusing to do business with him because of misimpressions created by the Mueller report that would be corrected by the Senate report. [00:18:59] Speaker 02: But might there be people who might be aware of the report and haven't read the Senate report? [00:19:05] Speaker 04: You know, that might be possible. [00:19:07] Speaker 04: I have no idea. [00:19:09] Speaker 02: So that's standing, isn't it? [00:19:11] Speaker 04: I don't think so. [00:19:11] Speaker 04: I mean, the relevant kinds of people, I think, would be people who have read or are aware of the Mueller report, don't know anything about the Senate report. [00:19:19] Speaker 02: It's highly speculative, I think. [00:19:20] Speaker 02: I think anybody who might have read the Mueller report and wasn't aware of the Senate report, if you can see that he had standing just based on them [00:19:27] Speaker 02: Mueller report before the Senate report came out, there'd still be standing. [00:19:31] Speaker 02: It's any injury. [00:19:33] Speaker 04: So I don't think so. [00:19:34] Speaker 04: And one is there's the injury piece, which we are contesting. [00:19:37] Speaker 04: But then the stability piece is it's not just people who read the Mueller report but haven't read the Senate report. [00:19:42] Speaker 04: It's people in that category that would then be aware of the judgment and would sort of revise their impression or conduct in some way on the basis of this court's judgment. [00:19:52] Speaker 04: And I don't think the plaintiff has demonstrated that there is sort of some group of people out there that would be aware of the report and the judgment, but not the Senate report. [00:20:00] Speaker 03: So that would be true. [00:20:01] Speaker 03: Let's just assume that [00:20:03] Speaker 03: There's just a blasphemously defamatory document out there. [00:20:09] Speaker 03: And everybody agrees that it's totally false and it's totally defamatory. [00:20:14] Speaker 03: And then a couple of years later, a second document comes along that has a different rendition that corrects the record. [00:20:21] Speaker 03: There's no action. [00:20:21] Speaker 03: You only have standing to dispute the first one. [00:20:24] Speaker 04: I mean, I think this doesn't come up that often, Your Honor, and usually defamation is litigated in state court for damages where the redressability question isn't really live. [00:20:36] Speaker 04: But I think we're not asking the court to adopt any sort of bright line rule or broad principle. [00:20:41] Speaker 04: I mean, I think the [00:20:42] Speaker 04: legal rule is given by, for example, this court's decision in renal physicians, which is that to show redressability, it's the plaintiff's burden to sort of plausibly allege the facts that could lead to the plausible conclusion that plaintiffs, or sorry, the third parties will change the way that they are interacting with the plaintiff, or will stop injuring the plaintiff on the basis of the judgment. [00:21:01] Speaker 04: And I think just in this very fact-specific context, the plaintiff hasn't done the work to make that demonstration. [00:21:08] Speaker 05: Can I ask you about the second action for a teacher child unless you had more questions on the first? [00:21:13] Speaker 02: Well, I just had one question. [00:21:14] Speaker 02: If we disagree with you on this standing issue, do we have to remand to the district court or can we just hold? [00:21:20] Speaker 02: that there's a failure to state a claim on those issues? [00:21:24] Speaker 04: And I think the court certainly can hold that there's a failure to state a claim. [00:21:27] Speaker 04: I mean, the district court actually dismissed the Privacy Act damages action on the merits. [00:21:32] Speaker 04: And this court certainly could affirm that. [00:21:35] Speaker 04: For the equitable stuff, I think we didn't ask the court to amend the judgment in any way. [00:21:40] Speaker 04: I think we're fine with the dismissal without prejudice. [00:21:43] Speaker 04: And it would be fine for this court to affirm dismissal without prejudice on the alternative grounds, the alternative merits grounds that we presented. [00:21:49] Speaker 04: And I think are fully briefed. [00:21:50] Speaker 04: before this court. [00:21:52] Speaker 02: I know we can, but I guess the question is, should we? [00:21:55] Speaker 04: You know, I don't think those are pure questions of law. [00:21:58] Speaker 04: The question about certainly the final action question and the question about the system of records. [00:22:04] Speaker 04: I don't know that any further development in the district court would be helpful or useful in any way. [00:22:09] Speaker 04: And so certainly if this court thinks that we're right on those threshold issues, we presented them to the district court. [00:22:14] Speaker 04: The district court didn't feel the need to reach them because it agreed with us on standing. [00:22:19] Speaker 04: But I think they're fully out for this court's decision. [00:22:21] Speaker 03: But I hadn't thought completely about that without prejudice, with prejudice actually. [00:22:24] Speaker 03: So if the dismissal is without prejudice, if the merits are reached, is it not a dismissal with prejudice? [00:22:31] Speaker 04: So if the district court have reached the merits, it would have dismissed with prejudice. [00:22:35] Speaker 04: But my understanding is that it is appropriate for the court of appeals to affirm the dismissal without prejudice, even on merits grounds. [00:22:41] Speaker 04: I mean, we're not asking to amend or correct the judgment in any way. [00:22:45] Speaker 04: And certainly, sometimes you would have a dismissal of prejudice, even on a merits ground, if you were giving leave to amend or something of that nature. [00:22:52] Speaker 04: So I don't think there's any problematic thing about this court affirming on the grounds that we present. [00:23:01] Speaker 05: So let's say we do exactly that. [00:23:05] Speaker 05: We affirm the district court, what, judge, affirm Judge Cooper's judgment. [00:23:10] Speaker 05: Does that make Chief Judge Howe's case moot? [00:23:15] Speaker 04: So I'm not sure that it would make it moot, Your Honor. [00:23:18] Speaker 04: I think it would change the analysis. [00:23:20] Speaker 04: I mean, so to the extent that he, the plaintiff, is getting in to rule 6C under the exception for sort of disclosure in connection with another pending proceeding or another civil proceeding, it certainly would change the analysis. [00:23:33] Speaker 04: If there's no pending proceeding, I would think he would be able to get under that. [00:23:39] Speaker 04: Well, I can, yeah. [00:23:41] Speaker 03: Why wouldn't it be moot then? [00:23:42] Speaker 03: I mean, one argument would be that [00:23:45] Speaker 03: If that's true. [00:23:48] Speaker 03: Let's suppose that the transcript actually helps bolster some of the merits claims, including on the Privacy Act, because it can show the requisite degree of intentionality or something like that. [00:24:00] Speaker 03: And in that situation, getting the transcript actually would make a difference. [00:24:04] Speaker 04: So I think, as Judge Walker's question to be, if the dismissal of the civil action is affirmed, so there is no more civil action where the transcript could help on the merits at that point, then there's still the pending request. [00:24:18] Speaker 04: I mean, you can make an unmeritorious request or a request that doesn't comply with 60. [00:24:22] Speaker 04: And so I'm not sure that that would be moot. [00:24:24] Speaker 04: I think, were that all to happen, and were this court not to just affirm Chief Judge Howell's decision? [00:24:29] Speaker 05: I don't understand why it's not moot, actually, [00:24:32] Speaker 05: Either way, regardless of what we do in action one, I think his motion in action two before Chief Judge Powell about accessing the grand jury transcript, his motion was titled, he wants an order denying unrestricted access to the grand jury transcript, or alternatively, an order for the Department of Justice be directed to file the transcript under seal in the related case. [00:24:56] Speaker 05: And he got the alternative relief. [00:24:58] Speaker 05: So what's left? [00:25:00] Speaker 04: So I think we have understood the request to be primarily a request for unrestricted access, so we can get a copy of the transcript, so we can disclose a copy of the transcript. [00:25:08] Speaker 05: Sounds like he said, I'll take either. [00:25:10] Speaker 04: I mean, maybe, and I think a lot of the arguments he's now making in this court, now the transcript has been filed about sort of correcting the public record and sort of correcting whatever misimpression he thinks was left by the report weren't really aired in the district court. [00:25:24] Speaker 04: But we have understood Judge Howell's, then Chief Judge Howell's opinion as at least denying in some part the relief that he was requesting. [00:25:34] Speaker 04: If this court thinks it's moot, [00:25:35] Speaker 04: I'm not going to fight you too hard on that, but. [00:25:38] Speaker 05: You sort of are. [00:25:40] Speaker 04: It's certainly not how we have been thinking about the issue. [00:25:43] Speaker 04: And I think on the merits, again, it is quite easy for the court to affirm on the merits that there was really no articulated justification in front of Chief Judge Howe to support the need for unrestricted access, particularly in light of the ability to have taken notes and to have disclosed the notes and the impressions of the transcript in connection with the civil action. [00:26:02] Speaker 02: Can I ask, would it not be moot until the period for rehearing or for seeking cert expired? [00:26:09] Speaker 04: I mean maybe it certainly will be challenging at that point to even at this point right to put additional information into the record if that's kind of the hook for the liveness of the claim but I think to me that's a merits issue I mean it's a sort of question about whether one of the rule 60 prerequisites disclosure is satisfied then sort of opens the door for [00:26:33] Speaker 04: the district court to permit disclosure. [00:26:35] Speaker 04: I don't think it's a jurisdictional issue. [00:26:37] Speaker 04: I mean, if someone came into court and said, you know, I just really want a copy of my transcript. [00:26:42] Speaker 04: There's no pending civil proceeding, but I want a copy. [00:26:45] Speaker 04: I don't think we would say that's sort of a moot case. [00:26:47] Speaker 04: It was just going to fail on the merits because Rule 60 provides sort of the full set of circumstances in which the district court may authorize disclosure. [00:26:55] Speaker 03: What if the plaintiff voluntarily dismisses the underlying action? [00:27:00] Speaker 03: I mean, I think as long as the plaintiff [00:27:03] Speaker 04: sort of keeps the request in front of the district court, then I'm just not sure it's a mootness problem. [00:27:08] Speaker 04: I mean, if this court disagrees, we are perfectly happy, I think, for this court to say that it's moot at this point. [00:27:15] Speaker 03: But it's not how we've been thinking about it. [00:27:18] Speaker 03: Even if they dismissed it, then you think they could still take an appeal of the request for access to the transcript that is to be used in the action that they dismissed? [00:27:28] Speaker 04: I mean, I think they could take the appeal. [00:27:31] Speaker 04: If the court thought that the original denial was, on its own terms, an abuse of discretion, then maybe the court would send it back and the district court then, in re-evaluating the request, would take account of the change circumstances and say, well, now that there's no civil action pending, you have no need for the transcript or rule 60 is not satisfied. [00:27:51] Speaker 04: But I don't necessarily think that would move the appeal. [00:27:55] Speaker 03: Can I ask one question about the merits of the Rule 6E question? [00:27:59] Speaker 03: So if we're in a situation in which there's an entitlement to look at the transcript and to take notes and to basically transcribe the transcript by taking notes, then can I just hear your articulation of what the additional interest is in not disclosing the transcript itself? [00:28:20] Speaker 04: So I think there's a couple of things there. [00:28:22] Speaker 04: And so I think sort of number one and maybe the most important one is the one that was sort of articulated by Justice Brennan in dissent in the John Doe case and then was sort of picked up by this court and grand jury, which is that actually coming out with an official copy of the transcript and having the automatic right to that copy of the transcript does provide an opportunity for any individual that might have control over a witness to [00:28:45] Speaker 04: Forced the witness to come out with a copy of the transcript, check the witness's testimony to see what the witness said in a way that might well chill sort of free and candid testimony on the front end. [00:28:56] Speaker 03: So that person could still force the disclosure of the notes if they have access to the transcript to look at and take the notes. [00:29:02] Speaker 03: And I take it in that situation at least the person can protect themselves because [00:29:06] Speaker 03: they don't have to turn over the actual notes they can make up some other notes i mean there's there's at least a delta at least right some delta there and i'm not sure even that um immigrant jury stands for the proposition that you have to be able to disclose the notes i mean here the district court imposed restrictions on but if it's a pressure situation then the whole thing is about disclosure because if it's a third party who says hey go in and figure out what they're going to let me know [00:29:29] Speaker 03: then we're just assuming a circumstance in which that might come to pass. [00:29:33] Speaker 04: Right. [00:29:34] Speaker 04: But I think the district court could well say, you have no automatic right of access to the transcript. [00:29:39] Speaker 04: You can take your notes. [00:29:40] Speaker 04: But I'm going to tell you, you can't disclose them to anyone. [00:29:42] Speaker 04: And then that wouldn't cut off the potential pressure, even setting aside the ability to fund things in the notes or whatever that might exist there. [00:29:51] Speaker 03: And does that argument, if we rely on Justice Brennan's notion, [00:29:57] Speaker 03: Is that just something that's going to work in every case? [00:30:00] Speaker 03: So there's just a presumptive dis-entitlement to the transcript and the government doesn't, even for a witness, doesn't have to come forward with specific justification as to why. [00:30:11] Speaker 03: there shouldn't be disclosure of the transcript itself to the witness. [00:30:16] Speaker 04: I think probably, but that's just what rule 60 is. [00:30:19] Speaker 04: I mean, there's a strong bias in favor of grand jury secrecy and grand jury sort of Imre grand jury carves out that specific circumstance where the witness gets access. [00:30:29] Speaker 04: But I think as a general rule, any witness. [00:30:32] Speaker 04: right so so we're already we're in a land in which it's flipped a little bit because the person's actually the witness and they could go out on the courthouse steps and announce everything that just happened right so i think the court this court has carved out sort of an exception to the usual rules um but i'm not that that means that sort of the exception should expand and expand to swallow the usual rules and the usual rules here are very strongly biased in favor of secrecy um and [00:30:57] Speaker 04: You know, I think as we explained in the briefs, there is a pretty significant delta between the witness being able to just sort of say here are the kinds of things I talked about and the witness being able to obtain a copy and to show sort of here are the exact questions that were asked here is exactly what I said. [00:31:11] Speaker 04: There may well be sort of other individuals who [00:31:16] Speaker 04: who could understand from the transcript things that the witness themselves might not understand. [00:31:20] Speaker 04: There's always sort of the veneer of not being entirely sure how truthful or accurate the recollection of the witness is. [00:31:27] Speaker 04: And all of those just go away when you have a copy of the transcript to sort of waive around in public. [00:31:33] Speaker ?: OK. [00:31:35] Speaker 03: Make sure my colleagues don't have additional questions for you. [00:31:37] Speaker 03: Thank you. [00:31:38] Speaker 03: Thank you, Mr. Janin. [00:31:40] Speaker 03: Mr. Madden will give you two minutes for rebuttal. [00:31:42] Speaker 01: Thank you, Your Honor. [00:31:45] Speaker 01: Uh, with respect to the assertions, hard to believe there were damages. [00:31:49] Speaker 01: That's premature, first of all. [00:31:52] Speaker 01: And secondly, Mr Scalazza spotted declarations showing how he was damaged in that case. [00:31:57] Speaker 01: Uh, with respect to this, I can't believe it's really hard. [00:32:00] Speaker 01: All you have to do is look at Rachel Maddow's transcript from three to a couple days after the footnote was made public and said, [00:32:10] Speaker 01: So that means Trump knew that somewhere in the former Soviet Union, a business buddy of his had taken action to make sure tapes, supposedly from Trump's Republican Russia, those tapes weren't getting out. [00:32:21] Speaker 01: Don't worry. [00:32:22] Speaker 01: All taken care of. [00:32:23] Speaker 01: I took care of that for you, right? [00:32:25] Speaker 01: There's the damage. [00:32:26] Speaker 01: That was a feeding frenzy worldwide on that issue. [00:32:38] Speaker 01: failures to state a claim. [00:32:41] Speaker 01: Just to reiterate, we believe they're standing under for equitable relief under the Privacy Act damages under the Privacy Act and under the A. P. A. You're on you're on on the question of whether we asked directly for the transcript of made public. [00:33:00] Speaker 01: I know we did. [00:33:01] Speaker 01: I cannot find it. [00:33:01] Speaker 01: I will submit. [00:33:02] Speaker 05: I want to be clear about what my question for you is, though. [00:33:04] Speaker 05: I'll assume that you asked for the transcript [00:33:09] Speaker 05: with the authority to make it. [00:33:13] Speaker 05: I'll assume you asked for an access, unrestricted access to the transcript. [00:33:17] Speaker 05: But I'm wondering if you made the argument, we need unrestricted access to the transcript so that we can disclose it to the public. [00:33:24] Speaker 01: Yes, Your Honor. [00:33:25] Speaker 01: I'm certain we did. [00:33:26] Speaker 01: I will find that for you. [00:33:27] Speaker 01: We'll submit 28A either this afternoon or tomorrow morning. [00:33:34] Speaker 01: On the policy issue of disclosure, [00:33:36] Speaker 01: As the court has said, the testimony belongs to the witness. [00:33:39] Speaker 01: That's the first rule in this idea of policy. [00:33:42] Speaker 01: Well, if you get the transcript out, there's going to control the witness. [00:33:45] Speaker 01: That is not applicable in this case. [00:33:47] Speaker 01: Miller is long, long gone. [00:33:50] Speaker 01: Um, so we asked that this case be a nursery man and send back this report with instructions in this court. [00:33:57] Speaker ?: Thank you. [00:33:58] Speaker 03: Thank you, counsel. [00:33:58] Speaker 03: Thank you to both counsel. [00:33:59] Speaker 03: We'll take this case under submission.