[00:00:00] Speaker 00: Case number 23-5173, America First Legal Foundation at Balance versus United States Department of Agriculture at L. Mr. Epstein for the at balance. [00:00:11] Speaker 00: Mr. Sandberg for the at police. [00:00:16] Speaker 01: Good morning. [00:00:17] Speaker 01: Mr. Epstein, you may approach the bench. [00:00:19] Speaker 01: And if you want to adjust the height, feel free. [00:00:23] Speaker 03: I think I'll work. [00:00:26] Speaker 03: Good morning, your honors, and may it please the court. [00:00:29] Speaker 03: My name is Daniel Epstein, and I'm counsel to America First Legal Appellant in this case. [00:00:35] Speaker 03: With me at co-counsel table is Michael Ding. [00:00:39] Speaker 03: I'd like to reserve one minute for rebuttal. [00:00:42] Speaker 03: This case concerns the tension between the president's confidentiality interests and the public's right to know about government's operations. [00:00:50] Speaker 03: This court should reverse the lower court or otherwise remand for a segregability analysis for three reasons. [00:00:56] Speaker 03: The first is that the plans submitted from the agencies under the executive order reveal nothing about presidential decision-making. [00:01:05] Speaker 03: Second, the White House affidavit pointed to by Appalese in this case interpreting the executive order in which is raised for the first time in litigation warrants no deference by this court. [00:01:17] Speaker 03: And lastly, failing to either reverse or remand spells terrible policy implications for the public. [00:01:24] Speaker 03: As to the first argument, that nothing the agencies created in response to the voting rights executive order reveals anything about presidential decision making. [00:01:34] Speaker 03: As this court well knows, the landmark case for the Presidential Communications Privilege is an unresealed case dealing with former Agriculture Secretary Mike Espy in a special counsel investigation. [00:01:46] Speaker 03: There, the core of the Presidential Communications Privilege applies to documents that reflect presidential decision-making and deliberations. [00:01:53] Speaker 03: Of course, that case limited the scope of PCP to internal White House communications. [00:01:59] Speaker 01: I'm not sure I follow because didn't we hold there that [00:02:03] Speaker 01: communications by presidential advisors in preparing the president to make a decision are privileged. [00:02:13] Speaker 03: Your honor, the issue in in resealed case actually dealt with who becomes a close presidential advisor. [00:02:20] Speaker 03: And so presumably before that, the assumption was that the president needed to be the one who was advised about something that needed to be confidential. [00:02:30] Speaker 03: Of course, what the circuit now recognizes is that you could have lower level individuals within the White House, like a special assistant president who nevertheless has official duties that relate to presidential [00:02:43] Speaker 01: Right. [00:02:44] Speaker 01: So that case, the main issue was about how far down the line the privilege extends. [00:02:49] Speaker 01: But I thought you were making a point that you had to reveal something about White House decision-making. [00:02:55] Speaker 01: So the inputs to decision-making are somehow not covered. [00:02:58] Speaker 01: But that seems pretty clearly established, that the inputs are covered. [00:03:02] Speaker 01: So I'm not sure. [00:03:02] Speaker 01: I just am probing what you mean by it doesn't reveal anything about decision-making, because we've held [00:03:09] Speaker 01: I think repeatedly that the kind of information that advisors believe is relevant or as here that the president himself solicits are actually revealing of the nature of the decision. [00:03:22] Speaker 03: Your honor, I think the answer is, is that it actually depends. [00:03:26] Speaker 03: So most of the times that this circuit has looked beyond internal White House communications and particularly lower courts in the circuit in the DDC have looked beyond White House communications to say, here we have a presumed solicitation. [00:03:39] Speaker 03: We have a presumed submission or communication from the agency. [00:03:44] Speaker 03: And the last factor is this relates to some presidential decision-making. [00:03:48] Speaker 03: Universally, that has either been internal White House communications, and those cases have not involved FOIA cases. [00:03:55] Speaker 03: Those are congressional oversight cases. [00:03:57] Speaker 03: Some of them were Federal Advisory Committee Act cases. [00:04:01] Speaker 03: But in the FOIA context, most of the time, what we're dealing with is one agency or one principal at an agency making a communication. [00:04:10] Speaker 03: Here, what I think is incredibly odd about this case is this is not a particularized solicitation of advice. [00:04:18] Speaker 03: This is an executive order, which goes to all agencies. [00:04:21] Speaker 03: And in fact, it should be kind of the reverse presumption, which to say, if you're truly interested as a close advisor to the president or the president himself in getting confidential communications, the executive order is an incredibly blunt tool to do that. [00:04:36] Speaker 03: you will often directly solicit communications. [00:04:40] Speaker 03: You don't effectively advertise your communications through an executive order. [00:04:45] Speaker 04: And I think that... To understand the legal rule you're proposing, if this EO had just said, all agencies send me a list of recommendations for me to make future decisions, are you disputing that that would be covered by the privilege? [00:05:02] Speaker 03: Again, Your Honor, I think it depends. [00:05:04] Speaker 03: First of all, as a rule, right, we know what the rule is, and I'm not disputing what the rule in this circuit is, is that you need the president or a close advisor to the president to specifically solicit and receive a communication that is relevant to presidential decision making. [00:05:20] Speaker 03: I think there's a number of issues here. [00:05:21] Speaker 03: One is the question of whether [00:05:23] Speaker 03: the responsive communications here, reveal anything about presidential decision-making. [00:05:27] Speaker 03: Recall, this case is not about internal White House deliberations. [00:05:31] Speaker 03: In fact, it's not about deliberations at all. [00:05:34] Speaker 03: Nothing in the record indicates that there was some give and take between the White House and the agency regarding these plans. [00:05:42] Speaker 03: In fact, when you look at special counsel Sauber's declaration, he specifically says that the purpose of these plans [00:05:51] Speaker 03: was so that the agencies can formulate the activities that they want to engage in. [00:05:55] Speaker 03: That's not, that's clear by its factual definition, something that's not related to presidential decision-making. [00:06:02] Speaker 04: I thought on pages 124 to 25 of the JA, [00:06:06] Speaker 04: special counsel sour pretty clearly says that these were solicited by the White House to be used or briefing and decisions by the president. [00:06:17] Speaker 04: That is that not the case. [00:06:18] Speaker 03: Well, you know, Judge Garcia, I think there's a lot of things to be said there and I want to go back to your prior point. [00:06:25] Speaker 03: But the first is is obviously we dispute that the executive order [00:06:30] Speaker 03: uh, said anything that even comes close to soliciting confidential communications. [00:06:37] Speaker 03: Um, and to the extent that the Dauber, uh, the Salber declaration rather, [00:06:42] Speaker 03: says anything about the purpose being to advise the president. [00:06:48] Speaker 03: That is nowhere in the text of Section 3B of the executive order. [00:06:52] Speaker 04: Absolutely. [00:06:52] Speaker 04: So I appreciate that argument. [00:06:53] Speaker 04: It's just that you had said there's nothing in the record that reflects it. [00:06:57] Speaker 04: And I would just say this framing of the case seems the way you would ask us to look at it is essentially Mr. Sauber says, [00:07:06] Speaker 04: the words that would qualify this for protection, but that's contradicted by other evidence in the record. [00:07:12] Speaker 04: And so you talk about the EO and the agency declarations, et cetera, et cetera. [00:07:16] Speaker 04: But that's really the argument, that we should find this is rebutted by contrary evidence. [00:07:23] Speaker 03: I think that's an alternative argument, Your Honor. [00:07:25] Speaker 03: And I think that if this court was to say, look, we have conflicting evidence, obviously, you're on the posture of a motion for summary judgment. [00:07:33] Speaker 03: And you're looking at a summary judgment standard. [00:07:35] Speaker 03: And I think that would warrant this court saying, look, there's actually some more fact finding that the district court needs to do. [00:07:42] Speaker 03: Let's remand kind of similar to what has happened in the parallel case in the Middle District of Florida. [00:07:48] Speaker 03: Let's do a potential segregability analysis. [00:07:50] Speaker 03: Let's look at the facts. [00:07:52] Speaker 03: But I want to go to your earlier point, Judge Garcia, and that is on the question of, well, isn't it well established that if you have these factors, solicitation, receipt in response solicitation, and it's for the purpose of presidential decision making, then we have a slam dunk answer that this is subject to the presidential communications privilege. [00:08:11] Speaker 03: And I don't think it's so clear in this circuit. [00:08:14] Speaker 03: First of all, we have a lot of case law that indicates that when you look at the situation of moving beyond the White House, [00:08:21] Speaker 03: And you're looking at the executive branch agencies. [00:08:24] Speaker 03: One of the core factors is, does this involve a non-delegable duty? [00:08:29] Speaker 03: Here, whether the president wants to be advised or to think about planning for voting rights is certainly not one of the core non-delegable duties of the president. [00:08:44] Speaker 01: Why does that matter? [00:08:45] Speaker 01: I mean, I understood that if you have a non-delegable [00:08:49] Speaker 01: duty that it's especially clear that whatever advice is being provided is provided to the president because no decision can be made or foregone without the president's having been the relevant actor. [00:09:04] Speaker 01: But I don't take anything in the logic of our cases about presidential decision making to limit it [00:09:12] Speaker 01: I recognize that's the strongest case. [00:09:14] Speaker 01: But for example, the president has the obligation to take care that the laws be faithfully executed. [00:09:20] Speaker 01: And if the president is fulfilling that obligation and authority, why isn't he entitled to confidentiality in the advice he receives on how to do that? [00:09:35] Speaker 03: You're right. [00:09:35] Speaker 03: Those are excellent questions. [00:09:36] Speaker 03: Let me address them in turn. [00:09:38] Speaker 03: First, I actually do think this circuit has a limiting principle and why the kind of non-delegable duty question does a lot of work in this circuit. [00:09:46] Speaker 03: And that is the language that you've seen in the Judicial Watch First Justice Department case and other cases that say that the assertion of the privilege must be narrowly circumscribed. [00:09:55] Speaker 03: Right. [00:09:55] Speaker 03: And so all of a sudden, if we expand it, [00:09:57] Speaker 03: with the agencies not only to non-delegable duties, or to delegable duties being covered by the privilege rather, and we apply it not just to a specific type of normal standard case of confidential communication, a presidential advisor to one agency individual. [00:10:15] Speaker 03: Let's say that it could be throughout the executive branch, through an executive order. [00:10:20] Speaker 03: That is certainly not narrowly circumscribed, and I think that has very serious implications. [00:10:25] Speaker 03: I think the second thing [00:10:26] Speaker 03: to address your point about, well, the president has to take care that the laws are faithfully executed. [00:10:31] Speaker 03: In order to do that, he has all of these needs for confidentiality. [00:10:34] Speaker 03: And I think it relates to the earlier point, which is that certainly the president doesn't take care that the laws are faithfully executed by going on a speakerphone and talking to all agency heads at the same time. [00:10:44] Speaker 03: And that is effectively the tool that the appellees argue is being used here and should be justified as presenting kind of confidential communications. [00:10:54] Speaker 01: I'm not sure I follow the logic of that. [00:10:56] Speaker 01: Because if a president comes into office and says, I'm on a listening tour for my first 100 days, I want to know from each agency what they think are the available policy options and what they would recommend. [00:11:14] Speaker 01: You could say that in a conference call and then say, when you respond to me, we'll have a confidential [00:11:22] Speaker 01: one-on-one phone conversation and it seems to me that that would be cover even though it has the wholesale rather than retail aspect. [00:11:38] Speaker 01: I don't think that vitiates it. [00:11:39] Speaker 01: So I'm just trying to figure out what the wholesale or the executive order aspect of this, what work you really think that's. [00:11:45] Speaker 03: I see my time is expiring. [00:11:47] Speaker 01: Can I answer this question? [00:11:48] Speaker 01: You may know we have a rule that as long as we have questions, we'll. [00:11:52] Speaker 03: So I think this hypothetical is actually perfect. [00:11:54] Speaker 03: Because what you've presented is a situation in which the president has a political or policy interest in announcing kind of his interests of getting educated by the agencies. [00:12:04] Speaker 03: And then second to that has his staff engage in one on one confidential communications. [00:12:10] Speaker 03: And that is precisely the sort of facts that the presidential communications privilege ought to protect. [00:12:15] Speaker 03: not the sort of thing that you announce something big in an executive order. [00:12:19] Speaker 03: And then only after the fact behind the scenes, do you develop a template and have a office of management and budget website to submit. [00:12:28] Speaker 03: That is not how you engage in the sorts of traditional cases of communications that this circuit has said should be presumed to be protected by the privilege. [00:12:38] Speaker 03: The last thing that I'll say about your point, your honor, is that one of the implications of saying that we can have an executive order. [00:12:47] Speaker 03: We don't need to rescind the executive order to change the meaning. [00:12:50] Speaker 03: We could just implement it through all sorts of other systems in which we've engaged in and which is in the record. [00:12:56] Speaker 03: is that the public doesn't know what the executive order means. [00:13:01] Speaker 03: Executive orders are published in the Federal Register. [00:13:03] Speaker 03: Executive orders lead to policymaking. [00:13:06] Speaker 03: There's a big presumption that if an executive order is going to say this is confidential information, it will say that. [00:13:11] Speaker 03: There's a reason why executive orders don't say this is confidential. [00:13:14] Speaker 03: information, because executive orders are really bad ways for presidents to get that information. [00:13:19] Speaker 03: And presidents typically don't want to publish policies in the Federal Register if they want responses to be confidential. [00:13:27] Speaker 03: And so with all of this, we can't just think of the implications for the FOIA requester community. [00:13:32] Speaker 03: We also have to think of the implications for Congress, which is. [00:13:35] Speaker 04: So Council, just on the meaning of the EO, because this is the focus of your argument, I think the government might say, [00:13:41] Speaker 04: What is public is the request for plans. [00:13:44] Speaker 04: And the question is, then, what is the plan that was submitted? [00:13:47] Speaker 04: And they just point to the language that says, essentially, please identify the ways that you can promote voter registration. [00:13:58] Speaker 04: And their view is that that's essentially asking for a list of options for the White House to then consider, give feedback, maybe take other action on. [00:14:07] Speaker 04: And that it's totally consistent with the district courts ruling that these were inputs into presidential decision making and just like to hear your direct response to that. [00:14:17] Speaker 03: Yeah. [00:14:18] Speaker 03: So, Your Honor, of course. [00:14:22] Speaker 03: You know what you have here is a series of public documents the plain text of the executive order the White House fact sheet typically executive orders come with an office of management and budget interpretive my question is on the plain text of the EO why should we read. [00:14:40] Speaker 04: submit a plan outlining the ways you can promote voter registration to mean, tell us all the ways you have decided to promote voter registration. [00:14:51] Speaker 03: Yeah. [00:14:51] Speaker 03: And sorry, Your Honor, two reasons. [00:14:52] Speaker 03: One is an agency plan for its agency purpose is not a White House purpose. [00:14:58] Speaker 03: If the language said, for the purpose of the president engaging in some policymaking decision, then we would have a clear industry in the executive order that there was a presumption of privilege. [00:15:09] Speaker 01: It's so interesting because I read it as distinct from recommendations asking for capabilities. [00:15:18] Speaker 01: What can each agency do? [00:15:21] Speaker 01: Tell us about how you interact with the public. [00:15:25] Speaker 01: Tell us about what kind of ID you issue. [00:15:28] Speaker 01: Tell us about [00:15:30] Speaker 01: what your websites are. [00:15:32] Speaker 01: And don't bother to stress about formulating recommendations. [00:15:38] Speaker 01: You're not voter participation experts. [00:15:42] Speaker 01: Just tell us about your capabilities, and we'll get all that. [00:15:46] Speaker 01: And then we'll try to come up with something that's coherent and cross-cutting and straightforward. [00:15:54] Speaker 01: That's worthwhile. [00:15:55] Speaker 01: So what about the executive order contradicts that understanding? [00:16:01] Speaker 03: Well, your honor, let's assume that your understanding is the right understanding. [00:16:05] Speaker 03: Then what we have there is we have all sorts of data that the agency produces to the White House. [00:16:10] Speaker 03: And to your point, that then leads to some give and take between the White House and the agency about let's try to formulate the plan. [00:16:17] Speaker 03: That give and take is presumed to be subject to the presidential communications privilege. [00:16:21] Speaker 03: What the agency produces for submission to the White House involves nothing about deliberations between the White House and the executive branch. [00:16:30] Speaker 03: And in fact, doesn't reveal anything about presidential decision-making. [00:16:34] Speaker 02: Let me just follow up on Hillary's question, if I may counsel. [00:16:38] Speaker 02: This is Judge Rogers. [00:16:41] Speaker 02: Is the court to ignore the context in which this executive order was issued? [00:16:51] Speaker 03: I'm not sure I understand your question. [00:16:53] Speaker 02: Well, let me be clear. [00:16:55] Speaker 02: Thank you. [00:16:55] Speaker 02: This is March of the president's first year after how many lawsuits were filed contesting the election results. [00:17:07] Speaker 02: All right. [00:17:09] Speaker 02: So the president is in office and by the time he gets his staff organized and all, it's March. [00:17:16] Speaker 02: And he says, one of the things we ought to do [00:17:19] Speaker 02: is check what the agencies are doing. [00:17:22] Speaker 02: So send out a notice to the agencies along the lines that Judge Pillard suggests. [00:17:32] Speaker 02: And while you contest, well, it shouldn't be done by executive order, maybe from points of efficiency, that was the better way, rather than send thousands of emails and letters to individual agencies. [00:17:48] Speaker 02: I'm not quite understanding your argument here as what I thought your argument in the brief was. [00:17:55] Speaker 02: And maybe the government's response persuaded you that there was no merit to the notion that here the executive order was as a result of soliciting information that could be deemed to be within the presidential communications privilege was too broad. [00:18:18] Speaker 02: because it was asking for things that A, the agencies had already done, which are a matter of public record, as well as what more they should do. [00:18:32] Speaker 02: So you reject entirely the notion that a president is entitled to ask the agencies for information about what they're doing. [00:18:47] Speaker 02: he can make a determination about A, what more should be done, what kind of coordination there should be, and what kind of oversight. [00:19:01] Speaker 03: Your honor, I think I understand your question. [00:19:05] Speaker 02: What don't you understand about it? [00:19:06] Speaker 03: No, I think I understand it. [00:19:08] Speaker 03: Sorry. [00:19:09] Speaker 03: I understand the question. [00:19:11] Speaker 03: And I think, of course, the president can solicit information that the executive branch agencies produce. [00:19:20] Speaker 03: The concern here is, what is the limiting principle? [00:19:23] Speaker 03: Can the president request that an agency, when it creates a record that might, at some point, be subject to a congressional subpoena, can the president say, please provide that record to me, and therefore, we're going to be able to assert privilege so that Congress can do that? [00:19:40] Speaker 01: That's not this case. [00:19:42] Speaker 01: Well, and a follow-up on that, unless Judge Rogers has one. [00:19:46] Speaker 01: Please. [00:19:48] Speaker 01: So am I wrong that if, [00:19:51] Speaker 01: A FOIA request were sought against the 14 agency defendants in this case, asking them, what actions have you taken to provide documents relating to actions that you have taken to increase public access to voter registration materials? [00:20:14] Speaker 01: Or do you have any policies on [00:20:18] Speaker 01: access to voter registration materials. [00:20:20] Speaker 01: Asked in that way, I would assume that it would be permissible. [00:20:25] Speaker 01: It's sort of like attorney-client privilege. [00:20:28] Speaker 01: You can ask facts. [00:20:30] Speaker 01: You just can't say, what did you talk about with your lawyer? [00:20:33] Speaker 01: And so here, I actually, so maybe I'm more useful, this is getting to my, trying to understand your concern that [00:20:45] Speaker 01: Sustaining the district court here could throw kind of a cloak of secrecy over a lot of materials. [00:20:52] Speaker 01: And I'm not understanding it that way, but maybe you can describe the fearsome situation. [00:20:59] Speaker 03: Yeah, and apologies if I wasn't so clear. [00:21:01] Speaker 03: I think to go to some of Judge Garcia's questioning is we could just look at the record and say some things are public, some things are not. [00:21:10] Speaker 03: It was not public that the White House created templates. [00:21:14] Speaker 03: It was not public that the White House created, or rather, Office of Management and Budget created a website for the agencies to submit information to. [00:21:22] Speaker 03: It was public that there was an executive order. [00:21:24] Speaker 03: It was public that there was a fact sheet. [00:21:27] Speaker 03: What is problematic is you could have a series of executive orders that look very similar to this one, but the public has no way to assess well, is this going to be one of those executive orders where at some point of time and by the way, we're not told in the declaration when that time was where all of a sudden the White House could develop a template. [00:21:45] Speaker 03: and develop a website and that therefore becomes the solicitation that prevents us from getting public access to records, that would be a very difficult policy for the transparency community because it would effectively chill them from seeking information. [00:22:04] Speaker 01: Is there an answer in that to the question that I posed about whether a FOIA request, even where under the district court's approach, could a FOIA request be made directly to an agency asking for particular kinds of information? [00:22:20] Speaker 03: Yes, Your Honor, a FOIA request could be made. [00:22:22] Speaker 01: And not be blocked by a presidential communication. [00:22:26] Speaker 03: Sure. [00:22:27] Speaker 03: So you could write a FOIA request that says, do emails exist between a confirm or deny the existence of emails between the agency and the White House, or some formulation like that. [00:22:41] Speaker 01: But I'm trying to get when you're talking about the information that would be shielded, when you're talking about communications with the White House, [00:22:50] Speaker 01: that is presumptively shielded. [00:22:53] Speaker 01: But I'm saying that if you wanted to know what the agencies themselves are actually doing on your presumption that this was saying, go forth and do all the things you can do, that the executive order meant to say, go forth, agencies, do all the things you can do, then is there anything to stop a FOIA request directly asking the agencies apart from any communication with the White House? [00:23:17] Speaker 01: And so it's [00:23:20] Speaker 03: I think the appellee's position would be whether those documents constitute a plan or whether they constitute what may look like a plan, the presidential communications privilege will apply so long as that data went to the White House and was then presented to a close advisor of the president. [00:23:38] Speaker 01: Maybe I'm not being clear, but the submissions, the template as filled out would not be [00:23:45] Speaker 01: obtainable under FOIA. [00:23:47] Speaker 01: But when you talk about secret law and the agencies actually doing things that the public doesn't know about, it's that aspect. [00:23:55] Speaker 01: If you're right that what the president was asking for was agencies have at it, go come up with a lot of stuff. [00:24:03] Speaker 01: And if the agencies then do that, putting aside the president's role and the submission of these templates, [00:24:12] Speaker 01: That activity is still presumably subject to FOIA. [00:24:17] Speaker 01: But that's not what you're interested in in this case. [00:24:20] Speaker 01: But I'm just trying to understand the claim that it casts this sort of secrecy cloak over a lot of functioning of government. [00:24:28] Speaker 03: Your Honor, I think to your hypothetical, I think the appellees would in fact say that everything that you're talking about would be subject to the presidential communications privilege. [00:24:39] Speaker 03: How do we know? [00:24:40] Speaker 03: Because when plans were released to another FOIA requester, the White House took the position that that was inadvertent. [00:24:49] Speaker 01: That's strategic plans, though, not policy actions. [00:24:51] Speaker 03: Well, but then what's the daylight between a strategic plan and then information that might be responsive to the executive order that wasn't put into the strategic plan document itself? [00:25:00] Speaker 03: And I think the test at this point. [00:25:02] Speaker 04: Counselor, I think the question is, could you have written a FOIA request to the agencies to describe all the final agency actions they took? [00:25:10] Speaker 04: in response to this executive order? [00:25:12] Speaker 04: And I believe the answer could be wrong, because that's not this case, but it's obviously yes. [00:25:16] Speaker 04: What you can't get are the deliberative documents within the agency, and maybe in this case, if they are deliberative, the documents between the agency and the wife. [00:25:25] Speaker 03: Your honor, that is a phenomenal question because my response is, is that in fact, our position is that the agency plans were final agency documents before they went to the transom of the White House. [00:25:36] Speaker 03: And the key question here is, is would producing that document, not any of the internal White House deliberations, not any of the back and forth with the agencies, is producing that plan going to interfere with presidential decision making? [00:25:48] Speaker 03: And the answer is obviously not. [00:25:50] Speaker 04: Thank you. [00:25:50] Speaker 04: I just had one final question, which is, you raised this argument about whether a quintessential and non-delegable power is involved. [00:26:00] Speaker 04: And either now or on rebuttal, I'd like to know if there's somewhere in your opening brief that you raised that argument. [00:26:06] Speaker 03: So to be frank, I think we didn't raise it specifically, other than the case law we cited deals with this issue repeatedly. [00:26:18] Speaker 04: Thank you. [00:26:19] Speaker 03: Thank you very much. [00:26:23] Speaker 04: I don't know if Judge Rogers or Judge Pillard has any final questions. [00:26:26] Speaker 01: My only question is, I saw that there's a template in the joint appendix that's called interim strategic plan. [00:26:39] Speaker 01: Do you know if there's a template that's non-interim in the record? [00:26:46] Speaker 01: Maybe a better question for the government. [00:26:48] Speaker 03: Yeah, I mean, my understanding based off my review of the Sabra Declaration is that there were just templates. [00:26:57] Speaker 03: But I believe that's that's how as far as I know. [00:27:00] Speaker 01: And the fact that it refers multiple times to it directs the agency to briefly describe potential agency actions. [00:27:10] Speaker 01: That doesn't [00:27:12] Speaker 01: contradict your reading of the executive order as effectively directing agencies to go ahead and take action, as opposed to wait for presidential policy. [00:27:25] Speaker 03: Yeah. [00:27:25] Speaker 03: I mean, I think the law of this circuit, Your Honor, ultimately looks also at the question of, what is the proposed use? [00:27:33] Speaker 03: And we have all sorts of cases in the circuit where this court has said that if you really want to manifest your intent to control or document or to otherwise make sure it remains confidential, you shouldn't manifest that clearly. [00:27:48] Speaker 03: We have all sorts of instances of the White House entering into memorandum of understanding. [00:27:54] Speaker 03: We've seen that with FBI background investigations, for instance. [00:27:58] Speaker 03: We've seen that with Secret Service records, for instance. [00:28:01] Speaker 03: And I think this court looks at the record and has to determine when we see use or agency purpose or anything like that, is it for a White House purpose where the White House has retained control over those deliberations or is it for an agency purpose? [00:28:15] Speaker 03: And it might be the case that this court decides, look, it may be for an agency purpose, but it nevertheless may be subject to deliberative process privilege. [00:28:24] Speaker 03: That is a different question than whether the presidential communications privilege applies. [00:28:32] Speaker 01: Judge Rogers, do you have any further questions? [00:28:34] Speaker 01: No, thank you. [00:28:36] Speaker 01: Thank you, and we'll give you your time. [00:28:38] Speaker 03: Thank you very much, Your Honors. [00:28:42] Speaker 01: All right, and now we'll hear from Mr. Samberg. [00:28:45] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:28:47] Speaker 05: Jeff Sandberg for the 14 agency defendants. [00:28:50] Speaker 05: As some of your honor's questions reflect, this case is about a very narrow class of documents. [00:28:58] Speaker 05: It is documents prepared at the president's express request submitted to his senior most domestic policy advisor, laying out a panoply of policy ideas and proposals for White House consideration. [00:29:10] Speaker 05: These are inputs into presidential and administration decision making. [00:29:15] Speaker 05: It is, in the words of the sealed [00:29:17] Speaker 05: In racial case, it is a comprehensive exploration of all policy alternatives and there as I think judge pillars question got that earlier there's no requirement that these inputs themselves reflect the outputs of presidential decision making the fact that they constitute advice to the president via his domestic policy advisor brings them within the heartland. [00:29:35] Speaker 05: of the presidential communications privilege. [00:29:38] Speaker 05: The executive order, I get that what feels different about this case for my opposing colleague is that the president conveyed his request via executive order rather than via speakerphone to all agencies, as he suggested. [00:29:49] Speaker 05: But I think if anything that furthers rather than inhibits transparency, the government has received many, many, many FOIA requests about implementation of this executive order. [00:29:58] Speaker 05: And we have responded with the documents that we can disclose that [00:30:01] Speaker 05: As Judge Garcia had asked about that don't reflect deliberative material and that don't reflect presidential communications. [00:30:07] Speaker 05: I think I'm actually in, we're in violent agreement with our opposing colleagues here that they are entitled to know about the operative commitments of the agencies and their effective policy. [00:30:17] Speaker 05: They just need to ask the agency for documents reflecting those policies. [00:30:20] Speaker 05: What they're not allowed to do is to say, [00:30:22] Speaker 05: Well, you know, that sounds like it might involve dozens of pages. [00:30:25] Speaker 05: I want one stop shopping and get a list of alternatives. [00:30:29] Speaker 05: And for most of these plans, they include ideas that never got off the drawing board or weren't implemented or were decided against or weren't implemented as proposed. [00:30:38] Speaker 05: And that is from the very outset of the presidential communications privilege. [00:30:41] Speaker 05: In the Nixon case, the Supreme Court said a president and those who assist him must be free to consider different policy alternatives without the public looking over their shoulder. [00:30:49] Speaker 01: What if? [00:30:49] Speaker 01: We read the executive order, as Mr. Epstein does, as telling the agencies not recommend things, but do everything you can along the following lines to increase access to voter registration and information about voter registration. [00:31:07] Speaker 01: And we'll stand ready, as the White House, [00:31:14] Speaker 01: do oversight, and if there's any additional policy tweaks needed, we'll respond to that. [00:31:21] Speaker 01: Would that change your analysis? [00:31:26] Speaker 05: Well, it certainly is not a plausible reading of the executive order, Your Honor. [00:31:29] Speaker 05: As the district court explained, the most reasonable reading of this is calling for what I think Your Honor termed capabilities of agencies, things that they can do rather than things that they will do. [00:31:42] Speaker 05: uh the fact that the executive order didn't use a magic word recommendations doesn't defeat that that's the most natural reading of that and then you have the salber declaration and the agency declarations that come in and confirm that that most that natural reading of the executive order is in fact the correct one that is the documents as they exist in the real world are uh lists of policy proposals rather than lists of final agency actions and of course we're not we're not focused here on what hypothetical documents might [00:32:06] Speaker 05: What other kinds of documents might hypothetically be responsive to the executive order? [00:32:10] Speaker 05: The question under FOIA is, look at these actual agency records. [00:32:13] Speaker 05: Are they or are they not privileged? [00:32:15] Speaker 05: And it's not post hoc or retroactive for the agency and White House declarants to come in and say, that is the character of these documents. [00:32:23] Speaker 04: That's just how FOIA works. [00:32:28] Speaker 04: the hypothetical, right? [00:32:30] Speaker 04: If the president had just asked agencies for all the things you've done over the past five years in this area, but then it was very obvious that the president and the White House actually used that to inform presidential decision-making, would that still be protected? [00:32:48] Speaker 04: In other words, it seems like the ultimate question is, is the document [00:32:54] Speaker 04: The ultimate question on your view is, is whatever the document is, used for presidential decision making? [00:32:59] Speaker 04: And in this case, the fact that you say they're potential and not final actions, it furthers that argument. [00:33:07] Speaker 04: But is it essential? [00:33:10] Speaker 05: I know this answer isn't satisfactory, but I would have to know more about the circumstances to know whether it really is reflective, as this court's precedent says, reflective of presidential decision-making and deliberations. [00:33:20] Speaker 05: We're not asking this court to address that question. [00:33:24] Speaker 05: We don't want this court to go down any slippery slopes here that is not comfortable going down. [00:33:28] Speaker 05: In re-sealed case, actually contemplate pretty clearly that certain kinds of post-decisional or factual information would be covered by the privilege where it is sufficiently connected to presidential decision-making. [00:33:38] Speaker 05: All this court needs to say is that the declarations confirm that these are inputs into presidential decision making and that they are lists of ideas, and you don't need to go any further than that. [00:33:47] Speaker 01: How, though, I mean, that seems like that could be potentially very broad. [00:33:51] Speaker 01: If a presidential decision includes a decision not to act, if presidential decisions include potential oversight with an uncertain prospect of policy, and the president asks for particular matters, raising red flags about [00:34:14] Speaker 01: potentially about the president's intent, whether it's a lawful or a Hatch Act violative concern. [00:34:22] Speaker 01: I mean, it's just sort of spinning out, I think, where the challenge is coming from. [00:34:27] Speaker 01: And what are the things you can point to that appropriately confine the privilege [00:34:36] Speaker 01: narrowly as our presidents emphasize. [00:34:41] Speaker 05: I think the limiting principle here is the one set forth in Judge Rogers' opinion for the court 20 years ago, which is that documents that are flowing in with advice to the president are protected by the privilege, but agency documents within the agency itself are not. [00:34:55] Speaker 05: And certainly, the documents flowing into the White House need to be connected to presidential decision-making and deliberations. [00:35:03] Speaker 05: And here, this court can just say that that's abundantly clear. [00:35:06] Speaker 05: It's abundantly clear the White House was involved. [00:35:08] Speaker 05: The fact sheet that was announced that reflected certain agency actions that had already been vetted with White House approval being announced reflects the White House's involvement here. [00:35:17] Speaker 05: This wasn't just a case of tell me everything you're doing, and I'll speak up if I want to say anything about it. [00:35:23] Speaker 05: I mean, the president said this is a core [00:35:25] Speaker 05: domestic policy goal of mine. [00:35:27] Speaker 05: I mean, announcing it to everyone. [00:35:29] Speaker 05: And get back to me with your ideas, and we'll take it from there. [00:35:32] Speaker 01: So am I right that it's the form of the document going to the White House, the fact that it's going to the White House, that's privileged as template because it's generated and solicited by the White House is privileged, but that the information contained, as I think you said when you started, is not [00:35:55] Speaker 05: Well, it's it's it's kind of a technical objection way around and they can't get that they can't get this document, but they can get all the information in the document if it's contained in some other agency document and a lot of this stuff has been made public in response to other requesters. [00:36:08] Speaker 05: Your honor asked about the final version of the template it's it's not in the record in this case, but it has been released. [00:36:13] Speaker 05: under FOIA. [00:36:15] Speaker 05: I believe at least the Heritage Foundation has a page that collects certain documents that were released under FOIA. [00:36:19] Speaker 05: And I haven't independently confirmed the authenticity, but there is a final strategic plan template on there. [00:36:24] Speaker 01: What's the role of the interim in the final? [00:36:28] Speaker 01: Just give us some context on that. [00:36:29] Speaker 05: My understanding is just that the White House, so the executive order calls for submission of a plan 200 days after the executive order. [00:36:37] Speaker 05: But there are many agencies who are really interested in these ideas and followed up immediately with the White House about different ideas. [00:36:43] Speaker 05: And so it ended up being that there was a lot of back and forth between the Domestic Policy Council and individual agencies. [00:36:48] Speaker 05: And at some point, an interim template was provided to them to help guide them in their initial spitballing of ideas, you might say. [00:36:57] Speaker 05: And not all agencies engaged in that early spitballing. [00:36:59] Speaker 05: I mean, some of these plans that came in after 200 days contain [00:37:02] Speaker 05: just lists of ideas that were never implemented, but other agencies that had been engaged with the White House. [00:37:07] Speaker 05: more ahead of time, more able to report on things that were announced around the same time. [00:37:12] Speaker 05: These plans are a snapshot in time of the status of the comprehensive efforts of the White House to explore different policy alternatives. [00:37:19] Speaker 01: So there weren't two waves of submissions. [00:37:21] Speaker 01: The interim was just like a worksheet for the agencies, and then they submitted on the final. [00:37:26] Speaker 05: I'm actually not sure, Your Honor. [00:37:27] Speaker 05: I'm not sure whether the interim templates reached the White House. [00:37:30] Speaker 05: Those weren't requested here. [00:37:32] Speaker 05: What was requested was the final documents submitted in September. [00:37:44] Speaker 05: If there are no further questions, we'd ask that the judgment be affirmed. [00:37:48] Speaker 01: So what about the Kaiser question that Mr. Epstein's briefing has raised? [00:37:55] Speaker 01: If we think that there is genuine ambiguity in the executive order about what it is requesting, would this be a case in which there's any kind of deference? [00:38:11] Speaker 01: How do we think about that? [00:38:12] Speaker 05: We don't see it as a Kaiser question, Your Honor, because we're not saying that the executive order is like the law that controls here. [00:38:19] Speaker 05: Rather, the law that controls here is this court's FOIA case law and presidential communications privilege case law. [00:38:25] Speaker 05: What the executive order is is a piece of evidence, factual evidence, that the precedent solicited these communications. [00:38:30] Speaker 05: And if the face of the executive order called for a submission of final agency plans reflecting actions already taken, [00:38:37] Speaker 05: And then the salver declaration said something contrary to that you would then have a contradiction between the declaration and the executive order, but here the salver declaration confirms rather than contradicts. [00:38:46] Speaker 05: The natural reading of the executive order so we're not we're not asking for deference word just saying that our declarations confirm what the actual you know character of these documents in the real world is and that's not inconsistent with what the executive order had called for. [00:39:00] Speaker 01: Does it matter for applicability or not of deference or of Kaiser whether the executive order regulates private conduct or is just a communication to other aspects of the government? [00:39:14] Speaker 05: I don't want to get out ahead of the Solicitor General on the potential application of Kaiser deference to the executive order. [00:39:20] Speaker 05: We just do not see the executive order as [00:39:23] Speaker 05: You know, a controlling legal document to which we are claiming deference here. [00:39:26] Speaker 05: It is playing a factual role here, which is showing very clearly that this was solicited by the president. [00:39:31] Speaker 05: You don't have to have any doubt that the president himself solicited the preparation of this advice here. [00:39:37] Speaker 05: But functionally, if this had happened by speakerphone, if it had happened by an internal memorandum, the outcome on privilege would be the same. [00:39:44] Speaker 05: It just, the public would not have known. [00:39:46] Speaker 05: as much that this was a priority of the president and likely not as many FOIA requests would have come in. [00:39:51] Speaker 05: But the fact that the president chooses voluntarily to announce something publicly that he doesn't have to doesn't mean that we have waived our right to assert privileges that would otherwise apply as to presidential communications. [00:40:06] Speaker 01: I had the impression that some of the agencies did go ahead and implement some aspects of the capabilities that they reported. [00:40:14] Speaker 01: Is that right? [00:40:15] Speaker 01: That's right. [00:40:17] Speaker 05: That's right. [00:40:18] Speaker 05: A lot of the ideas, frankly, though they were for many agencies, they were deliberative at the time that they were submitted to the White House. [00:40:25] Speaker 05: The White House ultimately said, OK, these sound like good ideas. [00:40:27] Speaker 05: You know, the president approved the [00:40:28] Speaker 05: the slate of ideas put before him, to the extent they were called to his attention. [00:40:32] Speaker 05: And so those things were then implemented. [00:40:34] Speaker 01: Were any of them implemented before they were reported? [00:40:39] Speaker 01: Is there anything in the record on that? [00:40:41] Speaker 05: Well, I believe the fact sheet that came out in September 2021 was more or less contemporaneous with the strategic plan. [00:40:49] Speaker 05: So yeah, there had been some back and forth ahead of the 200-day reporting requirement with the White House. [00:40:55] Speaker 05: As our brief states, that was done with White House knowledge and approval. [00:41:00] Speaker 05: Those things were announced because there had already been the back and forth exchange between the White House and the agency. [00:41:08] Speaker 05: So I think the best way to think of this is a snapshot in time. [00:41:11] Speaker 05: Some of the things listed in here are things that have just happened. [00:41:14] Speaker 05: Some of the things are ideas that the agency is just waiting for the White House to say yes to. [00:41:22] Speaker 05: Ambitious possibilities or off the wall ideas. [00:41:25] Speaker 05: One agency came up with ideas for another agency as to what they could do for voting access ideas. [00:41:35] Speaker 05: This was a comprehensive exploration of all policy alternatives. [00:41:37] Speaker 05: The strategic plans gave a snapshot in time. [00:41:39] Speaker 05: To the extent plaintiffs want to know about the operative commitments and effective policy of the agencies, they're welcome to ask the agencies, as many other organizations have done, if they can't already find that information on the agency websites. [00:41:50] Speaker 05: Because of course, the whole point of this is to help get the word out about voting access and voter participation. [00:41:56] Speaker 05: So much of the actions taken by the agency have been touted by the agencies themselves without the need for FOIA. [00:42:02] Speaker 05: Thank you. [00:42:06] Speaker 01: All right, Mr. Epstein, you have your rebuttal minute. [00:42:10] Speaker 03: Thank you, Your Honors. [00:42:11] Speaker 03: And I will be quick. [00:42:13] Speaker 03: The appellees have just told you that all that the executive order is is factual evidence. [00:42:18] Speaker 03: Well, that is precisely the policy argument that I think this court needs to move against, which is to say that executive orders are regulations. [00:42:25] Speaker 03: They have the force and effect of law. [00:42:27] Speaker 03: And when you issue them, you're issuing them as final to direct decision making by the agencies. [00:42:33] Speaker 03: If an executive order simply becomes factual evidence, then an executive order is not distinct template. [00:42:39] Speaker 03: It's not a public document published in the Federal Register is no longer distinct from a internal communication by the White House with the agencies. [00:42:46] Speaker 03: And this spells terrible policy consequences. [00:42:48] Speaker 03: In fact, we understand the policy consequence, which is that the police say that the remedy for the FOIA and transparency community [00:42:55] Speaker 03: is come up with a fishing expedition to all of the separate agencies. [00:42:59] Speaker 03: Make sure you tailor your FOIA requests differently for each agency to get all of the potential response of information. [00:43:05] Speaker 03: And of course, go and litigate that, because you don't know, in fact, what's there. [00:43:10] Speaker 03: Well, we do know what, in fact, is there, and that's what executive orders do. [00:43:14] Speaker 02: And that's why- Given the situation where we've heard a lot of argument already, I want to know [00:43:23] Speaker 02: what your position is now. [00:43:26] Speaker 02: I had originally thought that your organization would welcome an executive order that outlined exactly what the White House was seeking, all right? [00:43:39] Speaker 02: And then having that heads up, FOIA requests could be submitted to the agencies as to what they were doing, [00:43:51] Speaker 02: Oh, and maybe what they were thinking about doing and see what response you had. [00:43:57] Speaker 02: The other way, excuse my voice, by a microphone or emails would make your burden much more difficult in terms of knowing what is the White House doing. [00:44:19] Speaker 02: So it says, [00:44:22] Speaker 02: And as I understand your attack on what the White House is doing, as I understand your attack about it would be helpful if some words had been included, et cetera. [00:44:36] Speaker 02: But you don't really attack the declarations or the fact statement. [00:44:45] Speaker 02: And I need to understand what precisely [00:44:51] Speaker 02: is the injury that your organization is objecting to. [00:44:58] Speaker 02: Because I think questions by my colleagues have whittled away a lot of the broader challenges. [00:45:12] Speaker 02: So I want to be clear where you are now. [00:45:17] Speaker 03: Your Honor, I think, to answer your questions and concerns, our position is a plain reading of the executive order says, in certain sections, the president will receive recommendation. [00:45:29] Speaker 03: And there are, in fact, unlike my colleague, Apple Lee, there are magic words in the executive order. [00:45:36] Speaker 03: There's the magic word recommendation. [00:45:38] Speaker 03: It just so happens to not be in the sentence in section 3B. [00:45:43] Speaker 03: And for the public, [00:45:45] Speaker 03: there is an important need to know when is the executive the chief executive saying that he needs recommendations and advice to which we did not submit a FOIA request for and when is he saying then I need final agency plans and I think here the injury is is that if you look at all of the factual record [00:46:05] Speaker 03: The use of the documents, the standard is, what is the use when the document was created? [00:46:11] Speaker 03: And here, there's nothing to contradict that they use for these plans when they were created before they went through a series of back and forths with the agencies, which Appellee notes that there was spitballing. [00:46:27] Speaker 03: That initial use before it ever got submitted, that is an agency purpose. [00:46:32] Speaker 03: And that is not something that interferes with presidential decision-making. [00:46:37] Speaker 03: It's something that truly interferes. [00:46:40] Speaker 02: You know more about this than I do. [00:46:42] Speaker 02: But as you know, in this complex form of executive branch government we have, you're not sitting down face to face with the president of the United States [00:46:57] Speaker 02: for three or four days going through agency proposals. [00:47:03] Speaker 02: That's not the way it works. [00:47:06] Speaker 02: So you have this other system. [00:47:09] Speaker 02: And I want to understand, because I thought you made some good points, is what is the baseline objection here? [00:47:18] Speaker 02: I mean, you knew this is what the president wanted to do, the declarations that we have [00:47:26] Speaker 02: filled out, you know, I know it may not be in the record, about how the executive office of the president works in terms of gathering information, in terms of making decisions, whether it's on the budget, whether it's on foreign policy, whatever it is, there's a lot that comes in [00:47:54] Speaker 02: There's a lot that's winnowed through. [00:47:56] Speaker 02: And then there are things that are reviewed directly with the individual who is the president. [00:48:06] Speaker 02: So what is it that your organization thinks here? [00:48:15] Speaker 02: It was denied a legal way to get information. [00:48:22] Speaker 02: either directly from the agency or through these FOIA requests that were advised were filed at the White House to which it responded. [00:48:36] Speaker 03: Yes, Your Honor. [00:48:37] Speaker 03: Our injury was that we recently interpreted the executive order to state that agencies should create plans. [00:48:46] Speaker 03: Plans are normally thought to be final agency actions, [00:48:49] Speaker 03: A lot of FOIA requesters thought the same thing. [00:48:51] Speaker 03: And then in the middle of litigation, not before, not at the time of the executive order, we are told these are subject to presidential communications privilege on the basis of a lengthy affidavit by special counsel to the president. [00:49:05] Speaker 03: And our argument is, is that these documents are for primary, primarily agency use were created for the purpose of an agency use that subsequent deliberations between the agencies in the White House are presumed to be subject to PCP. [00:49:21] Speaker 03: But that ultimately to what sorry your honor presidential communications privilege, but that ultimately the release of these documents or at least saying that they're not subject to privilege under presidential communications privilege would not interfere with the president's ability to obtain confidential advice and make decisions. [00:49:42] Speaker 01: Mr. Epstein, you mentioned in your primary argument today the case in the middle district of Florida, and I thought you said something about remand for segregability analysis. [00:49:52] Speaker 01: The court has not remanded for any segregability analysis there, has it? [00:49:56] Speaker 03: Well, Sue, it's not yet in the appellate court. [00:49:58] Speaker 03: It's still in suspended animation before the district court. [00:50:02] Speaker 03: The judge has not issued any final rulings, but he has reviewed the documents in camera. [00:50:06] Speaker 01: Right. [00:50:07] Speaker 01: And so you've requested a segregability analysis, but there's no order there to that effect. [00:50:11] Speaker 03: No, and the lower court judge did not conduct an in-camera review. [00:50:21] Speaker 01: Thank you. [00:50:21] Speaker 03: Thank you very much. [00:50:22] Speaker 01: The case is submitted.