[00:00:01] Speaker 00:
Case number 26-5009, Mark Esaiz, Esquire versus Executive Office of the President, et al. Appellant, Mr. Comblee for the appellants and Mr. Lowell for the appellant.

[00:00:18] Speaker 06:
Good morning again, Mr. Comblee. Morning, long time no see. Yes, please proceed when you're ready.

[00:00:23] Speaker 05:
Thank you, Your Honor. May it please the court, I'll be Shade Comblee on behalf of all defendants and I'll reserve five minutes for rebuttal. So plaintiff in this case is asking to grant relief that no circuit court, including this one, has ever granted, which was effectively restoring a security clearance after the president determined that it should be revoked. Plaintiff tries to get around this by referring to a security clearance revocation as a method, policy, or procedure, but a merits determination from the president that an individual should not have access to security clearance is none of those things.

[00:01:02] Speaker 05:
Plaintiff also grasped that straw by saying that because the revocation was accomplished by the president rather than an agency expert, or because the presidential memorandum uses the term national interest rather than national security, it somehow becomes reviewable. None of those arguments have merit. And in this case, we also do believe that we would succeed on the merits of the first amendment retaliation due process and the fifth amendment right to counsel claim. So when we talk about the plaintiff's first argument that it gears towards the methods that was used, I don't think you can describe the presidential memorandum as a method.

[00:01:38] Speaker 05:
It's just saying the following individuals should not have access to classified information and list the plaintiff as one of them. When you think of method, you're thinking of something like Greenberg where you're challenging the question on the security form or something like that. Here, I don't think there's any real argument that it was a merits-based determination by the president.

[00:01:59] Speaker 05:
Now, nor could it be said that it's a policy. Policy implies a broad set of generally applicable rules that apply beyond the security clearance determinations itself. Here, this presidential memorandum wasn't saying some broad policy, it just said, number of individuals, including Mr. Zaid, should not have access to security clearances. Now, to the extent that they're talking about some sprawling policy beyond that, that doesn't meet the that definition either, because if the ultimate injury arrives from the revocation itself and challenges the substantive basis, then you have to look at whether the president had good enough reasons to revoke Mr. Zaid's security clearance.

[00:02:40] Speaker 05:
And that is what the question that Lee and Garland, excuse me, Egan said is off limits. And then the procedural, the argument that they're challenging the process rather than the substantive determination or lack thereof, We believe that that's foreclosed by Ryan versus Reno, which held that you can't frame the denial of a security clearance as a challenge to the process. And Lee obviously expanded that framework to constitutional arguments. Nor is it.

[00:03:07] Speaker 05:
very meritorious to say that the political question doctrine, which revolved around the presidents for Article 2 powers to decide who gets to be classified information turns on whether it was a certain type of review done by an agency versus this president himself. That analysis would flip Article 2 on its head.

[00:03:27] Speaker 03:
On that question, what are we to make of the Statute 50 USC 3341B1, which requires the president to select a single department, agency, or element of the executive branch to be responsible for directing day-to-day oversight of investigations and adjudications for personnel security clearances, including for highly sensitive programs throughout the United States.

[00:03:52] Speaker 03:
Does this mean that the president is not authorized to make those determinations himself unilaterally?

[00:03:58] Speaker 05:
No, Your Honor. I don't take that to mean Congress is circumcising the president's authority to make that decision himself.

[00:04:05] Speaker 05:
And then Radigan, which is a case we didn't discuss earlier but came up in plaintiff's briefs, it does not apply here either because those claims were about persons that were outside of the security clearance review process. There's no argument that the president is not one of the ones that is inside the determination process and made the ultimate call here. And then we raised the point in the last argument, but I'll raise it again. The fact that it said national interests versus national security, that's something that every executive order has said. And so it doesn't turn on kind of one of those two.

[00:04:35] Speaker 06:
So can I ask a question about that? If this case is at least sets up a little bit differently because the only determination at issue is a security clearance determination. Yes. And is it your, when you say that there was a merits determination made by the president about national security, then is the way you're coming at that to say that anytime there's a determination that's about a security clearance, it's necessarily a national security determination. It's about a security clearance and only a security clearance.

[00:05:06] Speaker 06:
It's not necessarily a national security determination because of the context, or are you saying, no, that this was actually a national security determination based on traditional national security considerations that attend of the grantor denial of a security clearance.

[00:05:22] Speaker 05:
So, Your Honor, our argument would be the same as the argument that I made, is that the reviewability doesn't turn on how the president came to the decision.

[00:05:30] Speaker 06:
No, so I just went right past reviewability. So, because in this case, you also have a substantive defense. Yes. And I'm just asking, in the way you're characterizing the substantive defense, which goes to the grounds on which the president rested the security clearance determination here, is your point that it's necessarily a national security determination because it has to do with the denial of your security clearance? Or is your point that, no, it's more than that, that it was actually the kind of national security determination that is typically made when a security clearance is granted or denied?

[00:06:06] Speaker 05:
So, Your Honor, I'm not saying that it's necessarily followed a particular procedure that past cases have done. My point being that when you look at what a security clearance determination is, it's an affirmative finding that someone meets the character and a whole bunch of other attributes to gain access to classified information. But in here, the president ultimately just concluded that he does not believe that Mr. Zaid should have access to classified information, and that's the merits determination that's being challenged.

[00:06:35] Speaker 03:
So the district court made an explicit factual finding that there wasn't any review individually of the national security risks posed by Mr. Zaid.

[00:06:50] Speaker 03:
And so there's no individualized national security review, whether 13 factors or some other basis. And you have not argued that that finding was clear error.

[00:07:03] Speaker 05:
No, Your Honor, we're not. We're saying that that finding is irrelevant because it doesn't like when you're talking about individualized, it really depends on what you mean. Like if individualized means you name the person, then obviously you've met that. But if individualized is talking about some type of process behind that, we believe that that that's also non-justiciable, and that claim is foreclosed by Ryan v. Reno. You can't reframe a merits-based determination on a security clearance as one about process in order to make it justiciable.

[00:07:37] Speaker 06:
But why doesn't that matter if you get past, and I know you've got a justiciability argument, and take that seriously, but if you get past justiciability, and then you're talking about the merits of the claim, then why isn't the distinction that Judge Pillard made asked you about salient.

[00:07:52] Speaker 05:
So, Your Honor, yes, we do agree that it could, it depends on which claim you're talking about, because for First Amendment retaliation, for instance, there is still the but for causation requirement. And here it's a little bit different because this isn't the law from EOS, which had a lot of other facts that were listed in there. It is just a plain statement saying that, you know, I believe that his clearance should be suspended. And that might matter for the due process requirement, but for in terms of that claim, but in terms of the First Amendment retaliation, the order on itself is facially neutral.

[00:08:28] Speaker 05:
And Mr. Zaid is going back seven years or so to talk about comments that the president made about him. And even in the context of those comments, it's questionable how much value they have. But given that the face of the presidential memorandum is neutral, I don't see that being particularly relevant.

[00:08:47] Speaker 06:
But what about the district court finding?

[00:08:49] Speaker 05:
So that's that the district court finding is also another issue, because if we're piercing behind the motives and whether the president did a good enough review or whether it was a pretext, that is the type of question that leave are.

[00:09:00] Speaker 06:
So if you have to have it, if you pass this disability and you're on the substantive merits, then on the First Amendment issue, if the district court finding is in place and you haven't asked for it to be set aside, then where are we?

[00:09:11] Speaker 05:
So Your Honor, then they would have to meet the three factors for First Amendment retaliation. And given that the base of the memorandum is neutral and the comments that the plaintiff cites are from a number of years ago, we would have to demonstrate that he would have issued it just based on the fact that he didn't trust Mr. Zade with national security information. And to that, we believe that we would win on the merits.

[00:09:33] Speaker 02:
Mr. Conway, is there a Mississippi v. Johnson problem in this case, which makes the president has made an individual determination and then is enjoined from making that determination?

[00:09:47] Speaker 05:
Yes, we do believe that that's also a problem in terms of- Did you, I don't, the government didn't argue that though. No, we do believe that that, to the extent that it goes towards the looking behind the veil of why the president made the decision, but we didn't argue that specific thing.

[00:10:02] Speaker 03:
So back to, you were saying that when I was asking you about the district court's findings, you were saying, well, they're arguing about the process. But the district court found that the summary revocation of Zaid's security clearance was not based on any national security interests, which is not, I mean, I take that to be relevant to our determination, which is harder here than in the pardon context. that we're trying to determine whether the president has invoked his article to national security authorities.

[00:10:40] Speaker 03:
We do have a little more work that we have to do before we get to your nondiscriminatory argument. I take one of your arguments to be, no, not really, because if it's a security clearance determination, that is an exercise of national security judgment. Okay. I hear that argument and we have to take it seriously, but if we reject that argument and we say there may be certain security clearance determinations that although they are in the form of revoking security clearance are not based and that the that the president has disavowed or failed to claim anything, or a district court has found as a matter of fact, and there's no clearly wrongness challenge, that it is not based on any national security interest.

[00:11:31] Speaker 03:
Why isn't that something that puts us outside of the jurisdictional bar?

[00:11:36] Speaker 05:
Yes, Your Honor, because Lee is not limited to, obviously, my first point about, and then also define what matters, what security clearance determinations are. They're not saying a negative thing that you're a national security threat. It's saying that you don't meet the positive characteristics to be trusted with classified information. So we believe that the district court was asking the wrong question.

[00:11:56] Speaker 03:
Well, here's somebody who's had national security access to classified documents for 30 years. The only thing that's been pointed to is nothing concrete to have to do with his management of classified documents. And the district court finds that it wasn't actually based on any national security interest. So I'm not sure that the plaintiff has to show, you know, that they would get a security clearance.

[00:12:26] Speaker 03:
The plaintiff has had a security clearance.

[00:12:29] Speaker 05:
So your honor, we believe that that's more of a merits question rather than just disability because If the access to classified information generally is within the national security realm and the president has been exclusively exercising or excuse me, the executive branch has been exclusively exercising that power for over 100 years and not.

[00:12:49] Speaker 05:
circumscribed by Congress. So the just disability question turns on whether it's about access to classified, it's about who gets access to classified information.

[00:12:58] Speaker 03:
If the president said, I know I have control over security clearances, which are about access to classified information. Here's a lawyer who I don't like some of the people he's represented, I think are scum. And therefore, because he's their counsel, He's scum. And if he doesn't pay me a million dollars, I'm going to deny him his security clearance. The guy doesn't pay him a million dollars. The president denies the security clearance. And the president says, that's the only reason.

[00:13:28] Speaker 03:
I know the guy's had it. And if he went through the process, he probably could get it again. But I'm the head of national security.

[00:13:36] Speaker 03:
No justiciability.

[00:13:37] Speaker 05:
So, Your Honor, we believe that it would be one of the other three ways that I mentioned earlier that would result, that would have to address the issues such as Congress passing a statute, the impeachment power of Congress, or the election. Five. Or the election. So we don't believe that that justiciability turns on that. And this has been a problem that's been addressed in every single case. So Li had the Title VII Chinese ancestry equal protection argument. And it still said not justiciable. So it's not the first time that the court had to confront these issues.

[00:14:08] Speaker 05:
And the answer still remains the same, whether it's one person or a group of people.

[00:14:12] Speaker 06:
So we need to think about Lee in a way that's harmonious with Rawls. Yes. And so at least in Rawls, it sets up very similarly because the court drew a distinction in a similar context between the non-reviewability of the ultimate decision and reviewability as to the process leading to that decision. And it was also a political question issue. And the court said the political question doctrine didn't stand in the way.

[00:14:44] Speaker 06:
And therefore, we'll consider the procedural due process claim. We're not going to deem the procedural due process non-justiciable. And then went on and talked about whether the scope of process was sufficient. So why wouldn't that same kind of rubric apply here too with respect to at least the procedural due process part of the case?

[00:15:05] Speaker 05:
Yes, Your Honor, because one, we believe that the cases that plaintiff cited, we're talking about statutory review bars from Congress rather than a textual commitment to the president based on the Constitution. Two, when you look at those cases, you also have to marry them to Ryan versus Reno and Palmieri.

[00:15:26] Speaker 06:
I just want to make sure I understand the first point because on the first point, Rawls did consider whether there was a political question. Yes. So why wouldn't wasn't that already the textual commitment was already taken into account as part of the vote?

[00:15:39] Speaker 05:
It was on the. Yes, but it was in the context of a statutory bar. It wasn't in the context of something like security clearances, which this court has said is textually committed to the president and where Congress has not circumscribed that power. And then, too, it still has to be married with Ryan versus Reno and Palmieri. Palmieri talked or Ryan versus Reno talked about how you can't reframe a substantive decision as a procedural one in order to avoid the Egan bar. And then to Palmieri, it did involve a procedural due process claim that, you know, at that time, The court said it was a frivolous one, so they didn't need to consider the substance of it.

[00:16:16] Speaker 05:
But Judge Katz, in his concurring opinion, said, we need to address this issue at some point for a non-frivolous claim. And that came in Lee, which also had a substantive due process claim. But I don't think it really makes sense to separate substantive versus procedural, because procedure isn't procedure for its own sake. There has to be something substantive that underlies it.

[00:16:35] Speaker 06:
So you do understand the due process question in Rawls to, I mean, I'm sorry, in Lee to have been a substantive due process claim. Yes.

[00:16:42] Speaker 06:
But I don't think- You wouldn't draw a distinction, but that's how I understood it too, but I want to make sure you agree.

[00:16:50] Speaker 03:
It's been a long morning, so I'm sure you've been clear, but it would help me if you just go back over. In Rawls, you talked about one difference is that there was congressional statute, but didn't the court determine that it wasn't clear that Congress intended to foreclose review and therefore political question doctrine doesn't prevent the court from looking at a due process claim and whether the process given comports with due process, but it was a presidential order that deprived the plaintiff of property and the president on your article two theory could just say, you know, Sure, Congress didn't foreclose review, but I want to foreclose review.

[00:17:39] Speaker 03:
I am the king of national security, and I don't think the process is needed here. Why doesn't that same result follow in Rawls if you're right about the nature of the commitment of national security determinations to the president?

[00:17:56] Speaker 05:
Yes, because, Your Honor, it's dealing with separate questions. It's dealing with when a due process claim can be brought if Congress didn't sufficiently bar it. But it's different when you're talking about something that our case law says is textually committed by the Constitution to the president that Congress has not circumscribed.

[00:18:14] Speaker 03:
But the textual commitment is the same text. Not necessarily a national security determination that's at the heart both of the CFIUS determination in Rawls and at the heart of security clearance determination in our case?

[00:18:34] Speaker 05:
So Your Honor, that goes back to my original point, which is you still have to marry it with the security clearance context with Bryan versus Reno, Palmieri and Lee and read them all together. And when you read them all together, it would be odd to say that there is, you don't have a property interest in your security clearance But at the same time, you have a procedural due process claim in regards to that, because process isn't process for its own sake. And then Ryan versus Reno says you can't rebrand.

[00:19:00] Speaker 03:
But the corporation in Rawls doesn't have a property interest in being deemed to not be a national security risk. They have a property interest in a contract. And so, too, Mr. Zaid has a property interest or has a liberty interest in serving his clients, in not being barred, what is it, in Carte Seva, not being barred from a category of future work based on the government's action and Zaid would be barred from a category of future work.

[00:19:38] Speaker 05:
So your honor to that, I would have to say that in the security clearance context, Lee says that even constitutional claims, it didn't make a carve out for procedural due process. It still says that that's still not justiciable.

[00:19:50] Speaker 05:
The answer is because if you're looking at the process, then you also have to look at whether the determination was ultimately good enough because you have to have a good enough process to lead to that determination. So if you ultimately have to examine the president's motives in the end, and you have to examine his motives in order to determine whether the process given was good enough, if you think that, for instance, he engaged in First Amendment retaliation by not giving the process. So I don't think that that distinction is anything but illusory in this case.

[00:20:21] Speaker 05:
And I did want to talk about the substance of the due process claim a little bit while we're at that.

[00:20:25] Speaker 03:
I'm not sure that that distinction works for me. I mean, in Rawls, we said that they're The government argued that there was no property interest because Rawls knowingly entered into this contract knowing that it was contingent on CFIUS approval. And so no property interest there because it's contingent. Well, that argument was rejected there. And why wouldn't the same argument be rejected

[00:20:57] Speaker 05:
Because Lee already says that in the context of security clearances, which Congress has not circumscribed the authority of the president in that area, that all claims that are constitutional are foreclosed. And then you had Palmieri before that. which is the question that Lee was trying to answer, did have a procedural due process claim and Ryan versus Reno, which talks about how you can't reframe a merits determination as one of procedure in order to avoid the Regan's bar, because then anyone can really say that I didn't get enough process. So that's what I'm challenging.

[00:21:28] Speaker 05:
And especially here, I think the dividing line is also what remedy they're seeking. So for instance, if the remedy that they're seeking is is restoration of security clearances. And that's not really a procedural due process claim. That's a merit-based determination. And that's what the plaintiff was asking for here. So I think that if to the extent that there is any difference between process and procedure, it can be disposed of based on the remedy.

[00:21:51] Speaker 06:
Well, I think the claim is just that you don't get to take away my security clearance until I get fair process.

[00:21:57] Speaker 05:
Yes, Your Honor. But the end result was uh, revocation of the presidential memorandum that, um, took away his clearance. So that's what, and the relief that they were asking for was in J 39 saying rescind defendants revocation of a security clearance. So he wasn't saying that, you know, give me more process. He was saying, restore my security clearance. That's the relief that I think makes it a tough fit to make a justiciable.

[00:22:19] Speaker 02:
Mr. Conley, they'd also requested, um, I mean, he requested reinstatement of his clearance, but also requested the government to provide appropriate process. Do you think that would have been a remedy that the district court could order?

[00:22:34] Speaker 05:
Not under Lee, Your Honor, because Lee did just say that, If it's about your security clearance, it's just not reviewable. And there are other contexts which talks about how process is not process for its own sake. There still has to be something underlying it. So if the issue was you didn't get process for your security clearance, I don't think it would create a way to creatively plead around Lee, which I don't think was intended by Lee at all. But Lee was set to answer all the questions, especially given past cases did bring up the issue of procedural due process too.

[00:23:09] Speaker 02:
So all remedies are foreclosed. not just the very substantial remedy of reinstating a security claim.

[00:23:16] Speaker 05:
Yes, Your Honor. And there's out-of-circuit precedent that says differently on that issue, and I understand that. But within the D.C. Circuit, we do believe that Lee forecloses even a procedural remedy, especially when you understand that Ryan v. Reno, which was also cited within Lee, also had that.

[00:23:33] Speaker 06:
Which is you never get to remedy because it's not justiciable. Yes, Your Honor. That's the position.

[00:23:38] Speaker 05:
Yes, Your Honor. But the remedy sought and the remedy given can give a window into what the case is actually about and to determine whether it's justifiable or not. Because the dividing line is, is the injury that they suffered tied to the clearance determination? And are they asking to restore their clearance? So even if they weren't asking for their clearance to be restored, if their injury was tied to the lack of clearance, that's also another issue.

[00:24:03] Speaker 02:
That's the reason for emphasizing what the remedy in fact was.

[00:24:07] Speaker 05:
Yes.

[00:24:08] Speaker 05:
Yes, so I see that I'm way over my time limit, but I just wanted to quickly touch upon the merits of both the due process as well as the right to counsel before I step down.

[00:24:19] Speaker 06:
Yeah, I want to do that. Just take a minute and do it efficiently.

[00:24:22] Speaker 05:
Yes, so there is no liberty interest behind the security clearance because the ultimate deprivation lies in someone being deprived as one, and the plaintiff's chosen career argument is in opposite because The right to a chosen career means something broader than what he claims. It doesn't necessarily mean the right to practice as a national security lawyer with the security clearance.

[00:24:44] Speaker 03:
But Cartseva talks about a government action that formally excludes the plaintiff from some category of future contracts or employment. And here there's a formal exclusion. So it's not a form of practice that requires a security clearance, which this plaintiff has developed over decades.

[00:25:07] Speaker 05:
So your honor, formal exclusion, he can work on national security cases.

[00:25:11] Speaker 03:
He can't work on cases that require him to have a security clearance, including cases in which he already has a client.

[00:25:21] Speaker 05:
So your honor, if that were the case, then any plaintiff can plead around Lee and Egan by claiming that they're a lawyer whose livelihood depends on a security clearance. And I don't think that the right to a chosen career should be read that narrowly And then the reputation plus isn't terribly irrelevant because the presidential memorandum itself doesn't contain any language about Mr. Zaid. And a security clearance revocation is ultimately not a judgment on character. It's just a determination.

[00:25:46] Speaker 06:
The district court pointed to some other, not just the order itself, but some other aspects of how the order was implemented that,

[00:25:53] Speaker 05:
Sure, Your Honor, but those comments were made years before the security of the presidential memorandum came out, and then some of the- No, there was other, not just by the president himself, but there were comments made by others after the fact. So, Your Honor, if it's based on there were comments made after the presidential memorandum was came out. So I don't know how much value there are being the face of the memorandum itself doesn't say anything negative about Mr. Zaid. So at that point, the comments that were made were just government officials, characterizations of Mr. Zaid himself. They weren't on the presidential memorandum that took away security clearance, which is the document that he's challenging.

[00:26:28] Speaker 05:
And then in terms of the right to counsel, there is no Fifth Amendment right to counsel of your choice, which is the type of claim that the plaintiff is making here. That obviously is different in the Sixth Amendment, but the defendant isn't making a Sixth Amendment claim. So for those reasons, we believe, one, it's not just dishable. But if it is, we went on the merits and then the balance of equities favor us.

[00:26:50] Speaker 06:
Thank you, counsel. We'll give you a little time for rebuttal.

[00:26:59] Speaker 01:
Mr. Dole. Good afternoon. I was checking it was afternoon and not morning.

[00:27:03] Speaker 01:
And may it please the court.

[00:27:06] Speaker 01:
On March 22nd of 2025, President Trump issued a memorandum directing the agencies named in this suit to quote, take all additional actions as necessary and consistent with existing law to revoke any active security clearances of a group of individuals, including Mark Zaid. Instead, with what the district court concluded, that the government did not meaningfully rebut that the denial of providing Mr. Zaid with what it called the usual process was based on his prior work for clients who are adverse to the government.

[00:27:39] Speaker 01:
And the agencies therefore did no such thing, ignoring not just the policies and procedures to which they were bound under that existing law, but also the protections in three parts of the Bill of Rights. Facing the strength and the basically uncontested factual record supporting Mr. Zaid's First Amendment due process and right to counsel arguments. The appellates blur a proper reading of security clearance cases that distinguish between permissible judicial review of procedures and policies and impermissible merits second guessing by courts.

[00:28:18] Speaker 01:
And this would, as resulting here, turn the clearance process into a blank check for forbidden government retaliation. I'd like to point out that I've heard the court all morning talk about four cases. And I believe those four cases, Egan, Webster, Greenberg, and Lee, provide the basis to determine that Mr. Zaid's claims were and are justiciable in the following way. Together, they do draw that distinction between what is an attack on what Egan called the substance and versus what they call the procedures in which you get to the substantive decision.

[00:28:56] Speaker 01:
Egan starts when there was no procedural challenge to what happened to him. leading the court to determine that what Mr. Egan was doing was going right to asking a court to decide on what it called the substance. The Webster case shortly thereafter introduced the concept of a court looking as to whether there was an individualized review or whether there was something more like a blanket policy. which this court after the remand made very clear in its decision in Gates, where that distinction between policy and individualized is referenced 41 times, which led then to Greenberg.

[00:29:34] Speaker 01:
While it did not address whether or not the president took action, it did make a very clear statement that a president's action in a security clearance decision would and could be judicially reviewable. And that leads to Lee. And what Lee represents is that by reviewing why Mr. Lee's claims were not justiciable, it demonstrates why Mr. Zaid's are in the following way. Here, there has never been a merits decision. In fact, quite the opposite. In all of the first administration of President Trump, the only thing that's happened is that Mr. Zaid got an increase in his security clearance.

[00:30:10] Speaker 01:
Only changed after Mr. Zaid took on the government in representing those adverse to that same president.

[00:30:15] Speaker 06:
And you say there's never been a merits determination.

[00:30:19] Speaker 06:
There has been a denial of a security clearance, a revocation of a security clearance.

[00:30:24] Speaker 01:
There has been a revocation of the security clearance.

[00:30:26] Speaker 06:
That's what the presidential memorandum did, right? It did. And so what do you think needed to happen in order to distinguish it from Lee? Because the part of Lee I'd like your thoughts on is the last part where there's also, and I'm only talking about the First Amendment retaliation claim for right now.

[00:30:45] Speaker 06:
The last part of Lee specifically deals with the First Amendment retaliation claim and says, like the Fifth Amendment claims, this one also rests on injuries arising from the revocation and challenges its substantive basis. So it too is barred by Egan.

[00:31:02] Speaker 06:
What's the distinction from that with respect to the First Amendment retaliation claim?

[00:31:06] Speaker 01:
Let me address your first part of the question and then I'll answer the second.

[00:31:10] Speaker 01:
So for Mr. Zaid's case, to be the Lee case, the following would have had to happen in Mr. Lee's case. There would have been no notice, there would have been no investigation, no polygraph, no interview, no record, no process, no possibility of appeal. In that case, there would have not have to been an institution of a departure from policy, which I was going to express why In Mr. Zaid's case, there's a fundamental departure from policy as Webster indicates that that is a factor you should consider.

[00:31:40] Speaker 01:
And there was no individualized review.

[00:31:43] Speaker 06:
But does that go to the First Amendment retaliation claim or is that the procedural due process claim?

[00:31:48] Speaker 01:
First and foremost, it goes to why it is that Mr. Zaid's claim is justiciable so that I can then address the court on the First Amendment retaliation claim.

[00:31:57] Speaker 06:
But I'm asking which claim are you saying is justiciable with the points you just made? Are you saying- that both claims are justiciable or are those points going to the justiciability of the procedural due process claim?

[00:32:10] Speaker 01:
Those factors go to, again, I make the distinction because Your Honor's questions were saying, what gets Mr. Zaid into the front door of the courthouse? And what gets Mr. Zaid into the front door of the courthouse were what I was going to suggest were things that don't exist in Lee. If you'll forgive me for a second, let me just make sure I make sure the court knows those three things. Because again, looking at Webster and Gates, you have the following. You have a memo which is in effect stating a new policy. By that, it was the president telling the agencies that are charged to do something under existing law, don't do it, I've already made the decision.

[00:32:47] Speaker 01:
Second, in effect, answering Judge Pillard's question, it was in effect revoking the executive orders that were in effect in those 13 factors because they were no longer applicable. And in terms of a departure, This is one of your questions earlier in the day. It was that all those cases that we have talked about are when the agency starts the process of determining whether or not the factors apply and then raise it to the point of the president if necessary. Here was the reverse. By that, I mean none of those cases, not Gates, not Casey, not Rattigan, not any of them, have a case in which the president says, I am starting this process and the agencies have to carry it out the way I did.

[00:33:28] Speaker 01:
That's what gets us justiciability. Once we're in the court to have justiciability, then I think the court has to look at all three. Now, of course, on the merits, we can prevail on any of the three, but we have strong legs of that stool on all those three constitutional claims. And back to Lee then, I want to also point out, maybe this is the answer to Judge Rao's question.

[00:33:48] Speaker 02:
But just to that point, I mean, what if the president were to enact an executive order that said, you know, I revoke the other executive orders and their processes? And then he made an individualized revocation decision.

[00:34:02] Speaker 01:
So if there was no executive order and he makes an individualized assessment, you'd have to tell me, does he make the individualized assessment as follows? I hereby decide that Mark Zaid does not have a security clearance because I find, or doesn't even say I find, because his security clearance invades the national interest of the United States. If that's what happens, it still doesn't stop us from getting into the court because again, it's the president doing it, whether he evokes the executive order or not.

[00:34:33] Speaker 02:
And then once that has happened, the court- So it's more justiciable because the president makes the determination?

[00:34:40] Speaker 01:
No, it's not more.

[00:34:42] Speaker 02:
Not more justiciable, but it is more likely to be justiciable because the president makes the determination.

[00:34:48] Speaker 01:
If there had been no orders that the president revoked, the president doing it in this fashion still makes it judiciable because of Webster and Gates' determination that if a president does this in a non-individualized process, then I can come into court and say, there's something going on here that the court has the ability to review.

[00:35:07] Speaker 02:
Consistent with Lee, which says over and over again that the revocation decision itself is not something that courts can assess, that it's not justiciable, right? That it's sort of off limits. Like if the lawsuit is going to the substance of a revocation decision, It's just not for the Article III courts because it's been committed to the executive branch.

[00:35:30] Speaker 01:
I don't read Lee to say it the way you said it. I'd like to state what Lee actually said the way I read it, and then maybe I've got it wrong. But what the court said is dispute is not non-justiciable simply because it tangentially relates to security clearance. And then we didn't know what tangentially meant, but the court made that clear in the very next sentence when it quotes Greenberg and talks about the justiciability of the methods and process. So in this case, methods and process based on a group determination would be something that I could come to court and say, you need to take a closer look.

[00:36:02] Speaker 01:
It doesn't matter in that case that the president actually revoked the executive orders because in the context of this case, and I want to point to another important factor of Lee, Lee concludes its decision by quoting Baker and Carr versus Carr. And in that phraseology, it asks the court not to ignore what's obvious and look at the structure and context of the situation. And in a context and structure of the situation in which the president has made his decision based on what he says it is, doesn't make it non-reviewable. Because Lee also says, of course, not every case touching on national security lies beyond judicial cognizance.

[00:36:38] Speaker 01:
So I guess in your hypothetical to me, it doesn't depend that the president did it himself. It's still going to be how did he do it himself? And that's where some of the cases about the president having this textually committed power is true, but not to the exclusion of all constitutional boundaries.

[00:36:55] Speaker 06:
Because we have known- What would the president have to do? If the president makes the determination himself and it's targeted at Mr. Zaid and the result is a withdrawal of the security clearance, what do you think the president would have to say in the order in order to make use of the lead justiciability bar?

[00:37:22] Speaker 01:
If the president had, or does again, say I the president have for reasons that I have either stated because I have heard something, read something, considered something, I am looking at this person's individualized ability to hold a national security clearance and I do it in that fashion, then I would still say that I might be able to challenge that that's his stated reason. But if he also said, this guy's a sleazeball, he ought to be sued for treason, that he has one of his cabinet secretaries at the same time say, as it was in this case, that this is a person that is used to security clearance for political purposes, then I could come into court and say, I understand he says this, but in the context that Baker and Carr says I'm allowed to bring to the court's attention, Because if the case says, as Lee quotes that case, context matters, I don't think Lee stands for the proposition that context doesn't matter.

[00:38:18] Speaker 01:
So I can at least get here to say, look a little bit further. Once I got here, I might have a harder time to say that consideration was, in fact, pretextual. That consideration was not on the merits. That's on the merits, right?

[00:38:29] Speaker 06:
On the merits. So I'm just asking you, give me the example of the presidential determination as to Mr. Zaid that wouldn't get to the merits, what would the president have to say?

[00:38:42] Speaker 01:
That would, I'm sorry, that would still make it judiciable or would prevail on the merits or both?

[00:38:50] Speaker 03:
Would render non-justiciable.

[00:38:52] Speaker 01:
Oh, what would he have to say? He would have to say words to the effect that, without regard to all the collateral context, which undermines what he would say in his order. But if his order had said, I have reviewed the situation of a lawyer named John Doe, or in this case, Mark Zaid, on the basis of having reviewed the material that was put in front of me, I hereby declare that he should not have a security clearance. Then I'm in the position of asking a court to do what it's not allowed to do, which is to look and see what his underlying purpose might have been, or to test whether or not one of those factors was properly.

[00:39:28] Speaker 01:
That's where in Mr. Lee's case, we have an agreement. Think about what, think about what Mr. Sorry.

[00:39:33] Speaker 02:
Is the candor the problem? the candor of the president's orders and statements? I mean, is that the problem?

[00:39:41] Speaker 01:
Not the candor. So in my situation, I'm agreeing with at least the intent of the question in the following way. Maybe I could answer it this way. Consider what Mr. Lee was asking the court to do. Mr. Lee was asking the court to second guess what a blip on a polygraph exam meant. and to then require those that were administering it to go further and determine whether some discriminatory purpose might interpret that blip differently. That's not allowed. That goes to not that he got the process.

[00:40:11] Speaker 01:
Indeed, Mr. Lee got all the process that Mr. Zaid did not get. As opposed to Mr. Zaid saying you have the tools, as you've always had, to determine whether or not process due or otherwise, because in this case you get process to get your security clearance revoked, has been achieved or been instituted. So in that instance, the difference between Mr. Lee and Mr. Zaid is what they were both seeking the lower court and now this court to affirm that they did. The president could make the statement, Judge, that you said happened.

[00:40:43] Speaker 01:
And if he made it without the context that you could look at, then maybe I'd have a weaker argument.

[00:40:50] Speaker 06:
If the context is context that's not on the face of the order?

[00:40:54] Speaker 06:
I think you can look out of the context.

[00:40:56] Speaker 01:
Yes, so my friend says that you can only look at what the president said in his order, which was content neutral. I don't think that's true.

[00:41:03] Speaker 06:
So then in the example you gave us of the presidential order that would actually render a claim non-justiciable. Would be that.

[00:41:14] Speaker 01:
But here you have more.

[00:41:16] Speaker 06:
Let's just take that situation. I just want to understand the parameters of your argument. So in that situation, what you articulated to us as the kind of presidential language in an executive order that would render a challenge non-justiciable.

[00:41:33] Speaker 06:
If there were extra order contextual considerations that might afford a basis for making a claim that, hey, it's what he said in the order. But actually, if you look at this other stuff that's outside the order, we've got some pretty solid grounds to say that's actually not what was going on.

[00:41:50] Speaker 06:
Are you saying that as long, if there are those kinds of extra order contextual considerations, then there's nothing the president can say in an order that would render a challenge to his order non-justiciable?

[00:42:06] Speaker 01:
I'm not going that far. Okay. Okay. So how far I am going would start with the possibility, I'm not, first of all, talking about what the president actually says, but the president saying something could, as it did here, amount to the Webster Gates departure from an existing policy or instituting a new one. So it gives me the ability to say to the court, this is such a departure because it has never happened this way. As I said, every case that I looked at in this brief and coming to court today is a situation in which the process works intended.

[00:42:39] Speaker 01:
You have somebody challenging the possibility that somebody should have a security clearance. He gets the review, he gets the process, and then at some point it is revoked. And then somehow, let's say in the Rawls case, a president may have something to do about it thereafter. Wasn't a security clearance case, but it has an analogy. That policy departure, that change allows us to argue that there's something more going on. Then once that happens, I may, as I said, lose once I get into the courtroom.

[00:43:10] Speaker 01:
So you have the policy reason. But if the president said only what you said, then I'd have to point out that there was a policy difference itself that provides me the key to the courthouse door.

[00:43:21] Speaker 03:
Does it matter? I mean, does the And I should try to remember to ask Mr. Conley this question. As Mr. Clement correctly said, it's principally a question for the government. But is it your position that the president is bound by the executive orders so that if he wants to personally take on an exercise of his Article 2 national security powers with respect to a security clearance, he's departing from established policy if he just says like executive orders, hey, those come from the president and I'm the president and I don't think it applies here without, is that a problem or does he need to announce a revocation or exception from a standing executive order?

[00:44:05] Speaker 01:
I thought I heard my friend say that executive orders have a binding effect. What I know about the law- In the executive branch, but on the president? All I know is this, executive orders are written by the president and they are not revoked automatically when a new president comes in. That's established case law.

[00:44:24] Speaker 03:
So if that's established- The president is saying, right, that's for me, the unitary executive, to make sure everyone else is doing what the president wants. And if I think what the former president said was fine and I don't disturb it, then- treat that as what I want. But when the president does something in conflict with it, does that in any way affect or invite judicial review?

[00:44:48] Speaker 01:
I think it causes a plaintiff to come into court and say the president has done something that amounts to the kind of policy departure that courts have recognized are not going to be based, as in this case, the facts, an individualized review on a predictive future ability of somebody to hold an individualized assessed security clearance. Now, that gets me only so far.

[00:45:11] Speaker 03:
So if the president wants to do an individualized version, but he's not doing it pursuant to you know, some named agency person with a, with a set of processes. He says, I'm going to do the process myself. It's going to be fine. It's going to be like that, but I'm going to do it. If he's going to do that, he has to say that he's sidestepping an existing.

[00:45:32] Speaker 01:
He does not have to say that if he says I'm going to do it and he makes a statement as to what his basis was on, and it doesn't have the contextual issue that I can say that's not really what's going on, then it's the end of the inquiry.

[00:45:46] Speaker 03:
What if he's thinking what it's on, and he doesn't want to tell people because it's a threat to the national security, but he's thinking, geez, this person is really, you know, it's not...

[00:45:59] Speaker 03:
It's a really serious national security problem.

[00:46:03] Speaker 03:
He's selling classified documents to an enemy. I'm not going to announce that, but I'm just going to do it.

[00:46:11] Speaker 01:
Well, I don't think if someone were questions earlier that the president is a quick thinker and he has 13 factors in his mind and he did that. I don't think he's bound necessarily by those 13 factors. If he's taking those 13 factors outside by taking away the executive order. What I do think is if you have the context of this particular case with Mr. Zaid, for example, a president's first term deciding he was so trustworthy that they would increase the security clearance to the highest level.

[00:46:38] Speaker 03:
and that the intervening acts are only- Your context, I know you have the retaliatory context, but I'm just trying to put that aside and figure out how much your work, just your departure from process factor, how much work that's doing. And I'm not sure I'm hearing you say that it's doing any work on its own apart from the other Irregularities.

[00:47:03] Speaker 01:
I think they spill over on each other to a certain extent, Judge Pillard, because of the departure from a policy is tied to the things that this record shows. For example, the action being taken by a private versus a federal employee, because all those cases are federal employees. The action being taken against a private person was not just a private person, but as an attorney who's using his security clearance to represent and basically support the constitutional rights of all of his clients. If the person is doing it with it being a private person, who's an attorney with whom the record indicates that there was a change as to why his security clearance on its face looks like it can only be as the district court found for a retaliatory purpose, then I'm not relying on standing in the courtroom solely because he didn't invoke the executive order.

[00:47:53] Speaker 06:
Okay, can I ask you the question this way maybe?

[00:47:56] Speaker 06:
Lee holds that a First Amendment retaliation claim in that case is non-justiciable.

[00:48:03] Speaker 06:
That's just a holding of the case, right? You have a First Amendment retaliation claim that you want to be justiciable notwithstanding Lee. And let's assume that's possible. So if I were going to construct the opinion that said Lee holds a First Amendment retaliation claim non-justiciable, but this First Amendment retaliation claim nonetheless is justiciable because What's the because? What's the succinct because?

[00:48:30] Speaker 01:
Mr. Zaid is not coming to court to say, I can just assert that I have a retaliation claim. In this case, a much stronger retaliation claim than Mr. Lee did. And stating that without any other factor gets us into the court for justiciability.

[00:48:46] Speaker 01:
In Mr. Lee's case, he argued at the end of all the things I said, He had process. He got all the opportunity to appeal. It's an individualized system. It wasn't a departure from policy. It was actually the implementation of the policy that existed. By the way, I'm here in court because I can also now raise the fact that it's a First Amendment claim to get me into the court. That's not our key in this case. Mr. Zaid asked to be in court and to ask you to affirm what the district court did, because our key to the door of the court was, let me tell you what, it is not individualized.

[00:49:19] Speaker 01:
It is part of a departure of a policy. It is the basis of that that I am asking you now to evaluate my strength of a First Amendment retaliatory claim and my liberty interest claim and my right to counsel claim. It's kind of backwards. Mr. Lee tried to use retaliation as his vehicle. Mr. Zaid doesn't get there until he has a vehicle.

[00:49:39] Speaker 03:
You're saying that the problem is that it's not individualized.

[00:49:44] Speaker 03:
I'm not sure that the process is not individualized, but don't the official executive order procedures for security clearances authorize the DNI to revoke a clearance without any process if she deems that to be necessary and appropriate?

[00:50:07] Speaker 03:
Director of National.

[00:50:08] Speaker 01:
Yeah, I heard that part.

[00:50:10] Speaker 03:
That she can revoke a clearance without going through process if she deems that is necessary.

[00:50:18] Speaker 03:
I think. And would that be subject to your same, that would make it justiciable?

[00:50:23] Speaker 01:
I think if you're asking me whether an agency head can make a decision in this case herself without determining that there's without applying a process, then I would point to two things. I would point to the Webster case and it's remand where you had the most discretion in the hands of the director of the CIA and not withstanding that and the government alleging in that case that all agency employment decisions, even those Normally repugnant are given over to the absolute discretion.

[00:50:57] Speaker 01:
The court said a constitutional claim based on an individual discharge may be reviewed by the district court in that context. I think that if you're telling me that the DNI person does it outside of that, I would ask my friend to address what in a brief that started in the Egan case. The government pointed out very much that if an agency has a procedure for denying or revoking a clearance, then a court can review whether those procedures were followed. That's what the government said in that case.

[00:51:27] Speaker 01:
I would apply it to your hypothetical.

[00:51:29] Speaker 02:
Mr. Lowell, if the whole reason for justiciability and getting into the courthouse is the lack of following the procedures or changing the policies, then isn't the correct remedy to say that the executive must follow the procedures, not necessarily reinstating the security clearance, which has never previously been done in any case that has been cited. I mean, except for these four district court cases.

[00:51:55] Speaker 01:
Except let's talk about the difference between those four and our case. We're here at the end of a preliminary injunction, not on the end of the case having been decided. The standard review is different, as of course you know, And that's exactly what Mr. Zay is asking for and is what the district court said should happen. The district court went out of its way basically to restore the status quo is what preliminary injunctions do and said, nothing stops the executive branch from doing what it should have done in the first place.

[00:52:26] Speaker 01:
Make that individualized review based on a process that occurred even in Lee. And if they had done that judge, I might not be able to come back in a few months hence and stand at this podium and say something was done wrong. That's a fundamental difference, but you've been asking questions about the remedy and I was glad I can point out why the remedy we're seeking is different in the context in which we're having.

[00:52:48] Speaker 02:
So you think at the end of this, a permanent injunction that simply said, give Mr. Zaid the appropriate process would be sufficient?

[00:52:58] Speaker 01:
I think if we go back to the district court where we present those claims and also an additional claim that wasn't in the preliminary injunction addressing, for example, a bill of attainder claim that we didn't rely on, and we get through all that process in the district court, and we are not able to show after we were properly in the district court, that it was retaliatory and that there was a due process violation and that there isn't a right to counsel claim that we have, then we won't be able to come back because the process has worked the way it was. It is not the same as my friend says to lump our relief with what happened in the law firms.

[00:53:32] Speaker 01:
There are other differences, but that's one of the fundamental ones. If your question is, what is the remedy that the court did? The remedy said, I am not I am putting this back to the status quo. You have your security clearance and now I am not preventing the government. That's an important point to make sure the court's aware of. For now, four months, Mr. Zetas operated under that clearance with no harm to the national security because the government hasn't tried to now institute the process that it should have done in the first place. It didn't even ask for a stay.

[00:54:03] Speaker 01:
And in the meantime, Mr. Zade has proven what the last 30 years should prove, that there was not any decision based on a trustworthy basis for the process to have done. And you don't have to take my word for that, because that's one of the five factual findings of the district court, which one of you have pointed out, of which there is no clear error.

[00:54:23] Speaker 06:
To justiciability, so if the distinction with Lee is that here, unlike in Lee, there was not an individualized determination. Lee presupposes an individualized determination, so it's non-justiciability rule is contingent on that. If there was not an individualized determination, then the justiciability problem is overcome.

[00:54:43] Speaker 06:
When you say it's not an individualized determination, is it based on the notion that the presidential memorandum encompasses more than one individual?

[00:54:52] Speaker 06:
It lists off several individuals, or is it more than that?

[00:54:58] Speaker 06:
What does it have to be to be the kind of individualized determination that, in your view, would render the challenge non-justiciable?

[00:55:08] Speaker 01:
I think the first part of your question, and then I'll try to answer and see whether that finishes the second part. It is not simply that it was in a group, although that it's in a group ought to be a red flag. It ought to be a tell, it ought to be somebody saying, you should take a harder look. What makes those individuals common in that group is something that I believe a court as below should do. What made that group common was that they all who the president determined to be either his actual or perceived political adversaries or opponents, or what he calls his enemies.

[00:55:40] Speaker 01:
It is that grouping together that allows us to say there's something going on here which got us into court. Okay, so you could still make that exact same point with respect to an individual.

[00:55:51] Speaker 06:
And exactly right. So then if it's an individualized determination as to a particular person, but there are contextual considerations that would lead you to think that person is an enemy of the president, the president has tweeted about them countless times, you got to wonder whether really what's going on here is the security clearance is being denied because the president really dislikes this person and finds them to be an enemy as opposed to the normal stuff. If that happens, if that's the context, so it's not group, it's one individual, but there are contextual clues that would allow somebody to make a claim that the decision is based on something other than what it normally is in the security clearance context, it's actually because this person's an enemy.

[00:56:31] Speaker 06:
Is that claim justiciable?

[00:56:34] Speaker 01:
If, again, the president says, Mr. Zade, security clearance is not in the national interest full stop. And that's all we have in the record. And he hasn't done it with anybody else. And he hasn't stated anything other than that. I go back to the building blocks of judiciability. The first building block is to determine whether or not his doing that is something that departs from the process or policy that this court has said a court can look at. In this hypothetical, that still would be the case.

[00:57:04] Speaker 03:
So you're saying he hasn't, given any national security reason or even claimed that he's basing it on national security, that that opens it?

[00:57:15] Speaker 01:
Well, in this case, two things, Judge Biller. First, to answer, I think, one of your questions before, it is whether there's any magic between the president saying I'm doing this based on national interest versus national security. And I think I am informed by Judge Howell's decision below that while national security can be a part of national interest, as my colleague in the other case indicated, every president thinks what they do is in the national interest. And so that should give you a warning sign, a red flag to look below whether that is what's going on.

[00:57:46] Speaker 01:
So that, again, in this case, slightly different posture.

[00:57:49] Speaker 06:
That would be enough to render it just a challenge justiciable.

[00:57:53] Speaker 01:
not just those two exchanged words, but those words in the context again of his doing something of, I am going to tell you agencies, remember what he said. He didn't really revoke Mr. Zaid's clearance himself. He basically said, I revoke, but I am telling you agencies to take all additional actions consistent with existing law. That's what he said. He didn't do what our hypotheticals were saying. He basically delegated what should have been the proper process, but then he did something else.

[00:58:23] Speaker 01:
because you know he did something else because the agencies interpreted his decision just the way we are claiming is unconstitutional. They didn't do that process. They simply said, okay, we hereby revoke in minutes or days or hours. So it's not simply that. Now, if he had said that and he didn't delegate the authority to the agencies who didn't violate the, who did not follow the existing law, then we're back to the bear's bones. And in the bear's bones, all I can say that in this context, National interest should have been a warning sign that there's something else going.

[00:58:54] Speaker 01:
You then look, what else is going? What's going is the change in his clearance process from Trump one to Trump two. What you see is the contemporaneous. My friend says all those statements are before the process began, not true. First, the president announced in the newspapers that he wanted Mr. Zaid's clearance revoked. Then he had one of his cabinet people make a similar statement in tweeting it out, contemporaneous to the process that we are in. That is not necessarily something that you should avoid looking at in the context of what happened here.

[00:59:22] UNKNOWN:
Okay.

[00:59:24] Speaker 01:
Make sure my colleagues don't have additional questions for you. I would like to say one more thing, please. I don't know that you need me to address either deliberate answers, but it is because we talked about this textual delegation. And I'd like to make one other point and anything else you'll ask me.

[00:59:39] Speaker 06:
But that is, again- You can make this point efficiently, please. Sorry? You can make this one point efficiently, please.

[00:59:45] Speaker 01:
Okay. So what I would like to remind the court in the juxtaposition of Egan, Webster, and Greenberg and Lee is that Lee leaves all those cases undisturbed. But we're talking about the textual analysis. I do want to leave maybe with the most important thing I could say, given the question Judge Rao and others asked.

[01:00:03] Speaker 01:
And that is the quote. All questions of government are ultimately questions of ends and means. But this is the next sentence. The end may be legitimate. Its accomplishment may be entrusted solely to the president. Yet the judiciary still may properly scrutinize the manner in which that objective is to be achieved. If I had to...

[01:00:26] Speaker 01:
distill down to one sentence, why this case is both judiciable and why, based on our claims, they win on the merits, that would be the sentence.

[01:00:35] Speaker 06:
Okay. Thank you, counsel.

[01:00:40] Speaker 06:
Combley, we'll give you three minutes for a rebuttal in this case.

[01:00:43] Speaker 05:
Thank you, Your Honor, and I'll be very to the point. So I think the conversation that Your Honor's had with my colleague on the other side, spell how hard it is to separate Lee from what's happening here, because you're talking about when you can look under the hood, what you can look under, and When you talk about justiciability of security clearances in this context, it's ultimately him, Mr. Zade, that has to demonstrate even on appeal and has the burden that he should belong in the courtroom.

[01:01:13] Speaker 05:
And the court can conclude if he didn't meet that burden, that that alone is a reason to rule for us. I did want to touch briefly on the national interest versus national security. If the If the executive order simply swapped out the word interest for security, I don't think that that would make it necessarily turn on whether it's justiciable or not, because then that goes back to a magic words problem. And given that the executive orders have used the term national interest, I don't think that that's should be a defining factor one way or the other.

[01:01:44] Speaker 05:
Another thing I would point out on the due process issue on JA 113, it talks about how these executive orders are only designed to improve the internal management of the executive branch and is not intended to create any substantive or procedural right against the United States. So the process that's there in the executive order is more to manage the executive, not necessarily to bind the executive in any way. And then finally, I would say on the procedural due process, the district court in Palmieri cited Dorfman v. Brown, which states that a person does not have a liberty interest in their security clearance and that the right to earn a living does not extend to jobs requiring one.

[01:02:25] Speaker 05:
And a lot of circuits have held that you don't have a liberty interest in security clearances. So this court would be creating a circuit split if it did. And if the court does not have any, and finally, I would just make one final point, which is that the plaintiff's position that it was the president rather than the agency, I don't think given that the textual commitment is to the executive himself, I don't think it makes a difference whether he did it versus an agency. And unless the court has any further questions.

[01:02:53] Speaker 06:
I just want to follow up on one item, now that you've finished with the rebuttal. On the second point you were making, it gets to a question Judge Pillar just teed up a few times, which is, the the the binding or non-binding nature of an executive order vis-a-vis the president so if the president issues a determination that isn't in compliance with an executive order it's the normal understanding well the president issues executive order so it doesn't have to comply with an executive order so the the fact that the determination is made outside the auspices of an executive order doesn't itself raise a problem it just shows that the president chose not to

[01:03:28] Speaker 05:
Yes, Your Honor. And the executive orders themselves say that it's not intended to create a procedural right or anything of that sort. So by its own terms, I think that Your Honor is correct that the president can obviously go or is not bound by what it says in an executive order that he issues.

[01:03:44] Speaker 03:
But would he be bound by the substance of the requirements of what needs to be considered? No, Your Honor, we don't believe that. Even if it's not justiciable, a question of whether it actually... I don't believe that he would be, Your Honor, especially when the... He doesn't need to say, I'm acting outside of ex in so executor. So you're standing up here for the United States and saying... there is no such thing as the president acting lawlessly because he acts in contravention of an executive order.

[01:04:09] Speaker 05:
That's correct, especially when executive orders in the clearance context say it doesn't create a procedural or substantive right and is designed purely for the internal management of the executive branch. So maybe some hypothetical could exist, but not in the security clearance context.

[01:04:23] Speaker 03:
So if we disagree with you that it's magic words to require something more specific having to do with national security, and the national interest isn't enough. Like if someone says, if the president says, I'm gonna go lenient on you and doesn't invoke the pardon power, it seems like it's more than magic words to say that the president needs to invoke something that is tied to his national security powers when he's talking about?

[01:04:51] Speaker 05:
So Your Honor, our position is Lee doesn't require it to decide the justiciability issue. It just requires that the decision be made.

[01:05:00] Speaker 05:
But to the extent that it's tied to, for instance, if national interest was stricken out and replaced with national security and all that, that's all that says. I don't think the plaintiff would say that that's enough. So the courts, I don't think, can turn it based on just the term alone used. And I think that's why it goes back to the broader point that once the decision made, that's what's unreviewable.

[01:05:24] Speaker 06:
Thank you. Thank you, counsel. Thank you to both counsel. We'll take this case under submission.