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Judicial Watch • 2011 jw-v-nara-hearingtranscript-10142011

2011 jw-v-nara-hearingtranscript-10142011

2011 jw-v-nara-hearingtranscript-10142011

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL  WATCH  INC  Civil  Action  
Plaintiff  10-cv-1834  
NATIONAL  ARCHIVES  AND  October  2011  
RECORDS  ADMINISTRATION,  10:  a.rn.  

Defendant. Washington, D.C. 
TRANSCRIPT MOTION HEARING 
BEFORE THE HONORABLE AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE 
COURT REPORTER: 	PATRICIA KANESHIRO-MILLER, RMR Certified Realtirne Reporter Official Court Reporter Room 4704B, Courthouse Washington, D.C. 20001 202 -354-3 243 
APPEARANCES 

FOR THE PLAINTIFF: 
MICHAEL BEKESHA, ESQ. 
Judicial Watch 
425 Third Street, S.W. 
Suite 800 
Washington, D.C. 20024 

FOR THE DEFENDANT 
DANIEL SCHWEI, ESQ. 
ELIZABETH SHAPIRO, ESQ. 

U.S. Department Justice Civil Divis ion Massachusetts Avenue, N.W. Washington, D.C. 20001 
PROCEEDINGS 

THE CLERK: Your Honor, calling Civil Action 10-1834, Judicial Watch, Incorporated National Archives and Records Administration 
Will all counsel please approach the podium and identify yourselves for the record and the parties you represent 
MR. BEKESHA: Good morning, Your Honor. Michael Bekesha behalf the plaintiff, Judicial Watch. 
THE COURT Good morning 
MR. SCHWEI Good morning, Your Honor Daniel Schwei behalf the defendant the National Archives and Records Administration 
THE COURT Good morning SHAPIRO Good morning Your Honor Elizabeth Shapiro behalf the Archives THE COURT Good morning This the defendant's motion, think ought 
start with the defendant 
MR. SCHWEI Good morning, Your Honor, and may please the Court plaintiff's requested relief both extraordinary and unprecedented. Plaintiff attempting compel the National Archives physically seize and then publicly scrutinize the personal audio diary former president the United States This Court lacks the authority provide such relief Neither the Presidential 
Records Act nor the Administrative Procedure Act authorizes such order. Under those statutes, private litigant cannot compel the seizure and scrutiny potential presidential record. This fundamental defect underlies each the threshold reasons why plaintiff's complaint must dismissed 
First, plaintiff's alleged injury not redressable. Plaintiff's only alleged injury here lack access the audiotapes but the Court cannot require NARA seize those audiotapes and NARA does not currently possess the audiotapes; therefore, the injury cannot redressed under the PRA. Moreover, NARA's decision about how enforce the PRA cannot overruled this Court. 
THE COURT Can determine from the face the pleadings from the point where are the moment that you don' actually have them? 
MR. SCHWEI According the allegations plaintiff's complaint NARA does not currently possess the tapes 
THE COURT think says upon information and belief, the president took them with him. And think it's one your --the second letter, the appeal letter, Exhibit that the archivist says, don't have them. You would have thought that would have been the response the 
first the first letter, but that point they say, 

don't have them. that given for purposes this hearing? I'm going ask the plaintiff the same thing. Does everybody agree that they're not there? SCHWEI Yes Your Honor 
THE COURT All right SCHWEI think everybody does agree that they're not there That's based both the complaint and the letter that you referenced 
THE COURT Okay 
MR. SCHWEI --which incorporated into the complaint THE COURT Okay SCHWEI With those allegations because NARA does 
not possess the tapes and because the Court can't order NARA out and seize the tapes, there simply way redress the only injury alleged plaintiff's complaint, which lack access the audiotapes 
The second threshold reason which tied that same fundamental defect that the PRA the statute that precludes judicial review under the PRA. That's true both because the D.C. Circuit's Arms trong line decisions and because the particular action here, namely the classification particular records personal, precluded the PRA. 
The third threshold reason the lack final agency 

action. The letters that Your Honor referenced earlier were response FOIA appeal, not anything related the PRA. 
And the final reason, which not threshold reason why this Court must dismiss the complaint, that fails state claim upon which relief can granted. Even assuming all the factual allegations the particular records here were not --NARA' action responding those letters was not arbitrary and capricious action. 
THE COURT: Let start with kind the fundamentals here. Basically, you are beyond the redressability issue, which goes the scope the archivist's authority. guess your third position that --the second issue that you raised that the classification decision not reviewable the Court 
Who made the classification decision here? 
MR. SCHWEI think there are two classification decisions, only one which the plaintiff challenging. President Clinton initially classified the audiotapes -presumably classified the tapes personal records not transferring them the archives the conclusion his administration. 
There's then the second classification determination, setting aside the final agency action problem, course, but assuming that there final determination that issue, NARA then would presented with the issue: agree with the president classification? NARA does not agree, then they can invoke their enforcement mechanism, which discuss they agree then they are not required anything further. And there's really --there are two classification decisions, but the issue front this Court did NARA act arbitrarily capriciously making their own decision responding the plaintiff's own letter. 

THE COURT: Well, don' understand --the judicial review issue seems based the president classification decision. Once archives takes upon itself make its own classification decision, why isn't that reviewable? What was even doing that point? 
MR. SCHWEI: Because the issues are exactly the same, 

are these presidential records are these personal records 
and for this Court review the archivist decision, 

would necessarily have decide did the president correctly 
classify these materials. And plaintiff own complaint bears 

that out when they allege that President Clinton unlawfully 
retained these materials the rationale for why judicial review precluded, namely sensitivity for the president's personal papers, applies both the president's own classification decision well the archivist decision because that issue, the examination are these presidential personal that the rationale for precluding judicial 
review, and the Court would have answer that question 

regardless whether the archivist the president 

THE COURT: Well, all the arguments for why can't review decision the president don't apply the archivist, first question: What was --under what authority was the archivist even purporting reclassify classify all the tapes? mean the --the letter says have consider the nature the audiotapes, the purpose for which they were created, how they were utilized. Based the record before me, the opinion that the tapes are personal 
Now, under the statute, differentiation between presidential records and personal records made the president the close the presidency, the presidential records become --fall within the custody the archivist. What was the archivist doing when purported make classification decision? What portion the statute even permitted that exercise on? 
MR. SCHWEI: Right, think the statute would Section 2112 (c) which the enforcement mechanism, which allows the archivist after records that believes are improperly classified that are outside its control and that believes should within its custody and control, and that exactly what happened the Mcil veney decision, the United States Mcilveney lawsuit which the archivist and the Department Justice jointly brought lawsuit recover map Cuba that was annotated President Kennedy because they believed belonged the Kennedy Presidential Library 
THE COURT: the decision before this Court review, your view, the archivist refusal invoke the enforcement mechanism under 2112? that even alleged the complaint? 
MR. SCHWEI No, the action alleged the complaint arbitrary and capricious challenge the merits decision, are these presidential personal; but there's separate question redressability. And necessary action redress plaintiff' injury would order the archivist initiate this enforcement action even before deal with the complaint the actual claim the complaint, the Court needs examine the threshold inquiry redressability. Under that inquiry, the relevant decision did the archivist fail invoke the enforcement mechanism that something the Court can review. And the answer no. And it's not necessarily what alleged the complaint but separate inquiry under the redressability. And because this Court cannot review the archivist failure enforce the discretionary --or the failure bring the discretionary enforcement action, that why redressability fails here. 
THE COURT What your basis understand the
basis for saying can' review what the president did. What your basis for your claim that can't review the archivist decision whether not invoke the enforcement mechanism? 
MR. SCHWEI think starts with heck Heckl Chaney, the Supreme Court decision stating that presumptively, failure bring enforcement action not reviewable this Court And then the second thing when one looks the actual statutory text the enforcement mechanism, says that when the archivist considers the public interest, may initiate enforcement action. And that type language, when agency, individual, representative considers the public interest, has already been construed the D.C. Circuit constitute unreviewable discretion the agencies because there law apply for this Court determining whether the agency had properly determined whether something not the public interest. 
THE COURT: Can review under the APA arbitrary and capricious exercise the discretion? The discretion unfettered that can't even review under that standard? 
MR. SCHWEI: Correct, Your Honor, which what both Heckl Chaney and the line D.C. Circuit decisions hold, which that APA review has carve-out stating that this statute the APA does not apply agency action committed agency discretion law, and that exactly what the Supreme Court held Heckl Chaney; that agency's failure initiate enforcement action unreviewable because that decision committed agency discretion law. And the particular statutory text have here, the D.C. Circuit already construed nearly identical statutory text and also agreed that that language constitutes unreviewable 
discretion, APA review available. 
THE COURT: What you're saying makes --when you read the letter, doesn't give you any indication that what the archivist talking about whether not it's going invoke the enforcement mechanism sounds like the archivist making classification decision, which not committed the archivist the first place. 
MR. SCHWEI According the D.C. Circuit's case laws think and the reason why because part the decision whether enforce the antecedent judgment whether violation has even occurred, and those are the cases that cite our reply brief, such ock SEC, that even the Court --even the agency declines not enforce the basis there being violation, that antecedent determination whether there not violation part the decision enforce and thus cannot reviewed. And that's true both under the D.C. Circuit law and was the case Heckler Chaney.  THE  COURT  Well  doesn't  Arms trong  specifically  contemplate  that  the  one  thing  that  reviewable  the  classification  decision  what's  presidential  and what  not  MR.  SCHWEI:  Only  very  narrow  circumstances  which  
are  not  present  here  The  Arms trong  decision  creates  allows  for  review  gui delines  defining  what  constitutes  presidential  record but  only  there  Federal  Records  Act  Freedom  Information  Act  claim  issue.  And here  plainti ff,  their  brief  concedes  both  those  points  
Number  one  plaintiff  concedes  that  not  challenging  any  guidelines  and number  two  plaintiff  concedes  that  not  bringing  FAR  FOIA-based  claim  And  for  those  reasons  fails  under  both  preconditions  for  Arms trong  type  claim  The  Arms trong  type  claim would allow  
someone  under  the  APA  argue  that  bringing  FAR  claim  only,  not  PRA  claim,  which  the  only  statute  issue  

here, would allow someone bringing FAR claim argue 

that the guidelines defining what federal record are 
issue, and order determine whether those guidelines are accurate, the Court would also able determine whether  guidelines  defining presidential  record  are  accurate  and  conform  the  statute  THE  COURT  Right  mean  Arms trong  II,  the  holding  much  narrower  than  some  the  language  

Arms trong was dealing with situation where presidential 
agencies were trying sweep what are agency records otherwise covered FOIA and the FAR into the Presidential Records Act and, therefore, narrow access them; and Arms trong said, no, you can't that. But there are snippets there that this Court has read subsequently saying, well, the Court was concerned about over classifying general and there concern that president could shield all sorts things that should open the public simply designating them private. 
What the --what prevent president from frustrating the balance that the statute was trying strike between his privacy and public access and given the fact that the Court recognizes that just about nothing that president does private? Let say president kind maliciously over classifies, what the remedy? SCHWEI think there are three answers that Your Honor. The first one and the primary remedy that always lies with the archivist and the attorney general, who have the authority they believe that the president has misclassified something that they can invoke the discretionary enforcement mechanism and pursue recovery those records there's always the possibility for the archivist act the check, and that's what Congress chose, and that's the remedy that this Court bound by. The Congress did not choose allow private litigants try compel the 
archivist pursue those records Congress left the decision the archivist and the attorney general's hands 
The second answer
THE COURT that remedy that the archivist even has available once the president longer the president? And what says the Presidential Records Act you have the remedies available you under the records act. you the records act, and says you can ask the attorney general after agency But we're now talking about 
former president Can after former president? 
MR. SCHWEI: Yes, and that would very serious consideration for the archivist make, but that exactly what Congress intended, leaving the archivist and the attorney general decide when appropriate under serious considerations situations like that seek recovery those records very different situation what plaintiff attempting here, which private litigant trying compel the archivist sue former president and there are good reasons why Congress would leave the decision experts like the archivist and the attorney general 
And the second answer, think, going back Your Honor's earlier question about the checks the president, that Arms trong already addressed this issue and said, quote 
"Congress presumably relied the fact that subsequent presidents would honor their statutory obligations keep 

complete record their administration." And that page our initial brief, that the D.C. Circui Arms trong 
THE COURT Given some the litigation that's occurred subsequently, that may may not have been good thing do. 
MR. SCHWEI: Well, that was Congress's judgment, which the D.C. Circuit upheld Arms trong 
And the third check president always Congress, because Congress believes that president wildly misclassifying information, can pass law change the statutory structure seize some those records, which has done the past That exactly what happened with President Nixon and the Presidential Recordings and Materials Preservation Act, the PRMPA, which was the predecessor the Presidential Records Act Congress felt that there was real danger losing some these documents and they passed new statute seizing those documents 
THE COURT: Well, and the statute we're dealing with came after that, the whole point have avoid that, that's why have this statute. 
MR. SCHWEI: Correct. Hopefully, this statute will avoid that through enforcement mechanisms like the archivist but the event that does not, then always Congress. 
And second historical instance Congress acting with records relating President Kennedy's assassination, which Congress passed law 1992 preserve all those records and make them publicly available. even aside from the archivist's own enforcement discretion and the presumed good faith the president honor the PRA, there always the possibility that Congress could act correct instance where president not following the PRA. 
THE COURT: Well, what's --how you distinguish the American Historical Association case? 
MR. SCHWEI Right That case was really about whether after president's term ends the president still retains legal authority make certain classification decisions, and there the archivist had essentially delegated the authority the former president. And before the Court that case was the legality that agreement it's not really case like this one, where private litigant trying compel the archivist seize and reclassify certain records Peterson was simply case about who the relevant decision maker was, and that issue not present here because the archivist clearly the relevant decision 

maker here and plaintiff not alleging otherwise 
THE COURT Well but the Court said had the authority look what the archivist was doing, whether the archivist was doing what was doing because was bound contract with the former president because was just 

simply acceding the judgment former president The Court determined after reading Arms trong and Arms trong that there was little window open for look the classification process and review what the archivist was 
MR. SCHWEI Right THE COURT you think that that part the decision was wrong? 
MR. SCHWEI The part that read Arms trong and and concluded that the Court could enforce freestanding PRA claim under the APA, yes, believe that part the decision was wrong; but will also note that the Peterson decision involved guidelines And still whatever Arms trong and might mean whatever other courts have construed them mean, always the context reviewing guidelines defining presidential records, and here that not what plaintiff attempting do, they concede their brief. They are attempting reclassify particular records presidential records; and even under the Federal Records Act, which all accounts permits more judicial review, litigants are precluded from challenging particular classification decision, and the reason why because that the administrative enforcement mechanism that Congress chose. They chose give the archivist choose whether 
reclassify pursue the recovery missing records. They did not want private litigants control that, which consistent with the rationale Heckl Chaney, which that agencies are the best position determine how spend their resources and chose how enforce their 
statutes 
THE COURT: Well, if, fact, the president was not just chatting Taylor Branch and musing about why did what did but they literally kept the tapes running while went about conducting his business and talking the phone foreign leaders and he's making appointments, doesn't that sort take out the realm what you started with, which this personal audio diary? Aren't really talking about records, least part, that track his official presidency? 
MR. SCHWEI: Right, just clear, our position that Your Honor could only reach that issue Your Honor disagrees with all our threshold arguments but 
THE COURT: understand that, but it's interesting issue. SCHWEI Right But here those tapes that President Clinton allegedly recorded are the functional NARA rationally responded the plaintiff and said those tapes are the functional equivalent diary other 
personal notes because those tapes were not prepared for use official business, they were not communicated throughout 

the government They were simply President Clinton personal record THE COURT: How does the archivist know what they were 
without asking President Clinton? MR. SCHWEI Because based the facts provided the plaintiff the letter, and which are again alleged here the complaint, NARA responded rationally the letter saying, based the facts that you have provided your 
letter, those sound more like personal records rather than presidential records THE COURT: Even the ones where literally tape recording him the phone talking someone else opposed recording his expounding his presidency historian? MR. SCHWEI But that would different than 
the president sat down and simply wrote their diary, this what said telephone conversation earlier -19 THE COURT: Well, no, one filtered through 
someone memory and perception and the other raw tape MR. SCHWEI would the equivalent either the post hoc recollection personal notes, which are also included the statute, which the mere fact contemporaneousness would not take outside the realm 
personal records because, again, the statute recognizes that 
its diaries and papers and personal notes the functional 

equivalent thereof, and personal notes would likely created contemporaneously but
THE COURT: I'm not focusing the timing; I'm focusing the exact duplication, the capturing the conduct official business, different. The transcript that being created this moment different than the notes sitting there taking. 
MR. SCHWEI: Because the transcript public record that will communicated, you know --it might posted the docket and available everyone, but here the audiotapes were allegedly created solely President Clinton solely for his use after the presidency, solely act memory joggers about what happened during his presidency. 
THE COURT How can you say that? How you know was prepared solely memory jogger? Aren't you making factual findings about what was President Clinton's mind? 
MR. SCHWEI: No. It's based the facts provided the plaintiff their letter NARA rationally concluded that President Clinton created these solely memory joggers for his post-presidency. 
THE COURT The definition personal records includes diaries, journals, other personal notes serving the functional equivalent diary journal --yes -which are not prepared utilized for transacting government business --correct --but also says not communicated the course transacting government business 
Now, isn' pressing the ''on" button tape recorder while you pick the phone and talk foreign leader communicated the course transacting government business? 
MR. SCHWEI That was not plaintiff' argument their letter, and NARA could rationally conclude that was not communicated the course transacting government business, because the focus not the perhaps the audio President Clinton's voice, would the records themselves, the records were not communicated the course transacting government business 
THE COURT: think his letter clearly cites those instances where Taylor Branch pointed out that the president kept the tape running while conducted business, and they specifically asked the archivist segregate those portions don see how you can't say that's not the letter 
MR. SCHWEI But there allegation the letter the complaint that the records were communicated the course transacting government business, because the relevant record the audiotapes, not the sound President Clinton voice speaking 
THE COURT: Okay. the way you parse the statute had take the tape out the tape recorder after Branch made and hand someone the course official business make presidential record. The fact that captured the conduct official business doesn't bring under the statute. 
MR. SCHWEI Right and there are couple further points add that which that certainly reasonable reading the statute, and NARA would entitled deference that reading, which something that the plaintiff does not contest here. And the second point that presidential diaries have historically, and almost certainly will the future, contain information relating official business. The president busy that it's almost certain that every presidential diary will contain information about what the president did, and that's borne out President Reagan's diary, which almost exclusively about official business, and also the Supreme Court decision the Nixon case and the D.C. Circuit's subsequent decision where they say, simply because record has official business historical interest does not take outside the realm personal record. 
And Congress was very cautious drafting this protection for personal records think that goes one our other preclusion arguments about how Congress would not have intended allow private litigant challenge the classification particular record presidential personal and one the reasons why the history the president --that led the passage the Presidential 
Records Act the time when Congress passed this act the scope president personal privacy right was still undefined and was still being litigated President Nixon, and Congress, when drafting this statute, was very cautious avoid potential challenge personal privacy grounds, which was one the main arguments that President Nixon made the Supreme Court and then later the D.C. Circuit That's borne out both this expressed exemption for personal 
records, well the legislative history which talks about why important avoid some the challenges presented the Nixon litigation. 
THE COURT: Well, but all that goes back where started, which Congress and the Courts recognizing strong presumption that should --it committed the discretion the president say, this mine and this public, and that's why don't quite understand the way the archivist went about answering the letter. Instead saying the president designated these personal, said, think they 're personal And once the archivist purports acting, making this classification decision, then seems making decision that might reviewable agency action 
MR. SCHWEI But not reviewable because 
inherently part the enforcement decision, which delegated the archivist complete discretion And that why the archivist responded making --responding with its own independent evaluation and characterization, because the archivist could --could, theoretically, after records that believes are presidential records but not within its custody and control And there role for the archivist this statutory scheme, which what Congress intended, but there not role for the Court evaluate the archivist decisions within that statutory scheme. 
THE COURT: certainly didn't make clear any point its letter that that's what was doing. There might have been more helpful way get this teed the way you now read it. 
MR. SCHWEI: But not the way I'm reading it, and think lot the confusion because this entire case was initially teed FOIA case, which that the letters all were FOIA requests pursuant the PRA, and the genesis those letters led the archivist respond the way did, and then only when this complaint was filed does the plaintiff add these additional dimensions of, oh, the archivist required seize these tapes and provide access them. And the reason why the issues that we're discussing now are perhaps not completely borne out this letter because they were never raised the appeal plaintiff and, therefore, the archivist had occasion respond them, and think that goes the core our final agency action argument which that the letter that plaintiff focusing here was certainly final agency action with respect the FOIA appeal but did not present 
the PRA type issues that are now discussing and, therefore, did not create binding legal consequences under the PRA, and did not represent the consummation the agency's decision-making process under the PRA. THE COURT: Well, certainly seems final when you 
look it. The archivist says, I'm done, District Court now. And since now you've just explained that the whole point making the classification decision the letter was predicate whether was going invoke the 
enforcement mechanism not, why isn' the letter final 
decision that not going invoke the enforcement mechanism? understand you 're saying that even that not reviewable decision SCHWEI Right THE COURT: --but why doesn't the letter clearly say, 
we're done with this from the archive's perspective? MR. SCHWEI: Because only says are done with this with respect the FOIA claim that was actually presented the letter. says, first and most fundamentally, don't have these audiotapes, your FOIA 

claim over; but the way, here additional explanation about why not think --or not think that these --we probably view these records personal records rather than presidential 
THE COURT: Well, "probably" little softer than what they said. said, decide." 
MR. SCHWEI: They say, based the facts made available me, believe that these are personal records, which --which has nothing with the actual FOIA claim that was presented. 
THE COURT: tee the claim that you would ultimately standing here and telling unreviewable, they would have had write letter the archivist and say, please exercise your authority under 2112 ask the attorney general after the records, and the archivist write back and say no, and then they were supposed sue under the APA and say that was arbitrary and capricious that you could come back and say within its unfettered discretion you have dismiss this 
MR. SCHWEI: Which the point requirements like final agency action, give the agency the opportunity actually consider the issues that are going then litigated. makes sense give the agency the first opportunity consider those issues and resolve them before lawsuit filed against that agency. 
THE COURT: you're telling him that thinks 
can make better case than made already for the fact 

that these might presidential records and not personal records, can write another letter asking the archivist consider invoking the enforcement mechanism and the archivist hasn't already decided whether would wouldn' 
MR. SCHWEI think that lawsuit would present all the same
THE COURT not talking about the lawsuit. that letter dead arrival, that letter could write? 
MR. SCHWEI: can't speak whether that would dead arrival. It's the agency's decision. THE COURT But your position final agency action that that decision has not yet been made? MR. SCHWEI That the letter issue here does not represent final agency action with respect that decision. THE COURT: Okay. All right. Well, that's interesting MR. SCHWEI But that lawsuit, the eventual lawsuit would present all the same other threshold -THE COURT That would dead arrival, your view? 
MR. SCHWEI Yes, Your Honor 
THE COURT: All right. think you've covered all 
your points, but interrupted you too early and there 

something else you want cover, you can so. 
MR. SCHWEI: No, Your Honor, think we've covered all the issues 
THE COURT Okay Thank you very much 
MR. BEKESHA: Good morning, Your Honor. 
Since you guys just --since you just concluded with 
talking about the agency action, the first letter response our FOIA request did not say anything about don't have the records just said these are not presidential records wrote another letter and response received the same response. believe final agency action because you had first letter asked for --you know, provided more evidence, more guidance why believed the 
tapes were presidential records, and archives came back and still said, once again, final agency action, these are not presidential records 
THE COURT But your suit certainly premised the assumption that they not have them; that correct? 
MR. BEKESHA: don't know whether not they have them. assume that they don't have them information and belief because archives has told they don't have them. 
THE COURT: And I'm assuming the complaint true for purposes -MR BEKESHA Then
THE COURT: --it's not your allegation that they have them and they're hiding them from you MR. BEKESHA: Correct THE COURT --because you've asked order them get them? 

MR. BEKESHA: We've asked you determine that the records are presidential records; and once THE COURT Well you've asked order them get them. MR. BEKESHA extent asked the Court 
require them assume cus tody and control them 're not asking for seizure. mean sounds awful that they think we're asking for this Court bang down President Clinton's door and seize these audiotapes. mean archives could make phone call, they could write letter. There nothing 
the record stating that President Clinton wouldn't just give them the records we're asking that they assume custody and control them. We're not specifically saying they have seize. 
THE COURT: They can call and ask, but ultimately 
you're asking them assume control get something they don't have. MR. BEKESHA: That's correct, Your Honor. THE COURT: All right. What authority under the statute they have that? 
MR. BEKESHA: Under the Presidential Records Act, they 

are required assume custody and control the records and then make them immediately available. 
THE COURT They're required assume custody and control the presidential records after the president designates which are which? 
MR. BEKESHA: Possibly. THE COURT Where they have the authority behind that and demand something else? 
MR. BAKESHA: Well, first, not the record and one knows how President Clinton classified these records, nor that issue here today. But the second
THE COURT Why not? 
MR. BEKESHA: Why isn't issue? 
THE COURT Right Aren missing indispensable party here? 
MR. BEKESHA: We're not because the definition presidential records doesn't talk about how the president classifies the records; talks about the substance the records. regardless how the president classifies the records, presidential record based substance, they're still presidential records 
THE COURT: No, the president given the specific authority categorize the records presidential personal, and the ones that are personal are filed separately. 
Then when the presidency ends under the statute, the 

presidential records within the custody and the control the archivist where under that statutory scheme does the archivist have any control over something that has already been separated personal? 
MR. BEKESHA: Well, the plaintiff --we would argue that there that classification that goes initially, but that not that just help the White House and the president sort out which records going turned over archives It's not the final decision. It's not absolute The definition presidential record doesn't include presidential record what the president says is. presidential record 
THE COURT: Well, actually, think that's exactly what the statute says Where does the statute give the archivist the authority decide what presidential record is? 
MR. BEKESHA: The archivist --all the statute says that the archivist the United States shall assume responsibility for the custody, control, and preservation and access presidential records that president. 
Our argument that these records we've alleged, are presidential records and, therefore, archives assume custody and control the records
THE COURT That upon conclusion the president's 
term office. MR. BEKESHA: Correct, and has been out office. THE COURT Right And that Section (f). BEKESHA Correct THE COURT: But you Section (b), 

documentary materials produced received the president and his staff units individuals the executive office the president shall shall --to the extent possible, categorized presidential records personal records upon their creation receipt and filed separately. That's 
(b). That during the presidency. It's only after the presidency over and there category --you know, let's say had two boxes, he's leaving the White House; personal, presidential, personal, presidential They get this box, they don't get the other box This what they assume custody and 
control over where they get classify anything? MR. BEKESHA: Your Honor, you section 
subsection (b), says, shall the extent practical categorized. does not say that not categorized the president presidential record that not 
presidential record. For example, you the archive's website about the Clinton Library THE COURT says shall classified presidential personal and filed separately. 
MR. BEKESHA: Correct. The president supposed 

categorize his records but that doesn't make presidential record; that just how the president categorizes the record. THE COURT: Well, who exercises the authority classify? 
MR. BEKESHA: Archives, response two our letters states that has the authority make that determination 
THE COURT Well, and I'm not sure that does and I'm asking you where that authority found the statute. There reference presidential versus personal anywhere the statute except subsection (b) 

MR. BEKESHA: No, Your Honor, but the other parts the statute talk about presidential records
THE COURT Right 
MR. BEKESHA: --and once --a presidential record not because somebody classified but because fits 
the criteria. have alleged that these records are presidential records based the information and belief 
listing, you were speaking about before, you know, conversations with foreign dignitaries, conversations with congressmen, and the recording kept going. our position these records are clearly presidential records and they should made available the public quickly possible 
THE COURT Well, let say you 're right What 

authority have tell the archivist anything about it? And what authority you have sue, ask them anything about it? 
MR. BEKESHA: Well, first off, you look the enforcement mechanisms that the archives keeps talking about section 2112 (c) well the separate provision about the attorney general. 
THE COURT: Right. And 2112(c) states the archivist may 
MR. BEKESHA: Correct, but also talks about records being deposited with them. doesn't talk about necessarily enforcement actions get records they don't have think what 2112 (c) talks about is, once archives provided with personal records other records they may treat them though they were received presidential records which important when they're prior presidents, not much the case anymore, but mean prior the Presidential Records Act, they received these materials from former president what they with them. And all 2112 (c) talks about is, once they receive them, they can treat them presidential records 
And then regard the attorney general provision, that only applies the Federal Records Act. mean there statutory authority any case authority talking about 
THE COURT Well, the Presidential Records Act says they think the public interest, they can invoke the remedies available the Federal Records Act, and then you have and read the Federal Records Act see what they're talking about. But you're saying neither one 
those applies here, where the statutory authority let's put aside the question whether can even order them where the statutory authority that they get call we're not going knock the door now --and say, President Clinton you've got something that you shouldn't have? 
MR. BEKESHA: The authority would under the Presidential Records Act and the idea that the records --that archives required assume custody and control the records and make them available. they don't have the records they cannot make them available the public under FOIA under any other provision any other way. the authority rests with what the statute says; that they are required assume custody and control and then required make those available the public. this instance, they don't have the records, they will then have obligation try obtain and try get 
the records and that what 're asking 're asking for 
determination that the records are presidential records and 
that archives assumes custody and control the records 
THE COURT But you can only read that section the way 

you're reading that section you read that section without reading the rest the statute, that something happens before the end the presidency, and what happens before the end 
the presidency the president classifies his records BEKESHA Well, don know --that the other problem. don't know what the president did. not know President Clinton classified these records personal records presidential records. Archives doesn't know. Archives, the letter, assumed that these records were classified one way, but they don't know. mean there's 
THE COURT: why aren' --are missing party here? American Historical Association sued George Bush 
MR. BEKESHA: 're challenging --we don't think President Clinton necessary party because we're challenging the determination archives and archives that time didn' reference President Clinton They said, this Court has already stated, they said based information, determine 
Now, there may information that President Clinton has that may able provide the Court clarify how classified the records what happened the records maybe even where the records are; but the motion dismiss, that not issue Maybe need take the next step and see --have very limited discovery that issue the idea the classification important, let the case forward this point, and then figure out what the next step Limited discovery some sort may resolve those issues 
THE COURT: Well, what you with the holding CREW Chaney that there cause action against the archivist under this statute? 
MR. BEKESHA: would turn the Court's attention the Judi cial tch Commerce Departmen case about --which was FACA, slightly different --but how --you know, the prevention making this determination prevents any possible remedy, any action. mean this relies solely the determination that these were not presidential records Because they're not presidential records, archives argues, you know, outside the scope FOIA. There would --because outside the scope FOIA, couldn't bring FOIA lawsuit against the Court --I'm sorry --against archives we're stuck. have way challenge their determination. And believe this instance, which different circumstances, that APA allows, and this Court has authority, make determination under the APA about the decision that archives made this instance 
THE COURT What the decision that you 're asking review? The failure invoke the enforcement mechanisms the classification? 
MR. BEKESHA: Well, the determination that these 
records are not presidential records. 

action against them? How you distinguish CREW Chaney? What the Court found that situation she could mandamus 
the vice president, but there wasn't really anything she could about the archivist Why isn' that the answer here? 
MR. BEKESHA: recall correctly, CREW was CREW, very similar Arms trong, was during the presidency 
THE COURT Right. 
MR. BEKESHA: President Clinton longer office. These are different circumstances. There lot those issues talk about separation powers and courts and even Congress interfering with the president day-to-day activities while the president vice president office. don have that issue here 
THE COURT Right What she said CREW is, this point before the presidency over they don't have any authority. They don' get classify, the vice president doing all the classifying. there nothing the statute, there statutory hook for hold them responsible she lets them out the lawsuit. 
Here you're saying the presidency over, but see even less statutory hook this point because they get what's given them the end the presidency. They don't get anything else under the statute, and you're saying there something they didn't get that was misclassified and want 

MR. BEKESHA: Well, don't know they're 

misclassified. All know that archives does not have these audiotapes this moment And based their letters they made determination that they don have the audiotapes because they're not presidential records. That's all that's before the Court right now. You know, don't know they may have received the audiotapes one point don know that They haven alleged that they never received them; just that they don't have them right now. They may have been reviewed archives. don't know. We've alleged that these are presidential records, that they have requirement assume custody and control these records that they have responsibility and obligation make these records available the public Their response, archives response was they're not presidential records, you don't get them, and that's what we're stuck with, that's what we're faced with. 
THE COURT: Well, the Presidential Records Act, according Arms trong accords the president virtually complete control over his records during the term his office And the archivist and Congress can' even veto him actually starts disposing records, much less saying, you know, this private 
How you square that language with your claim that the decision classify these records subject judicial 
review? 

MR. BEKESHA: Well, both the Arms trong cases were extremely focused and they were during the presidency and now 're after the presidency; but how view Arms trong was the creation, the management, and disposal decisions; and we're not addressing any the creation, management, disposal decisions made President Clinton 
THE COURT But the only classification 
MR. BEKESHA: created 
THE COURT --decision Arms trong said the Court had able review was the decision essentially bring things under the Presidential Records Act that don belong there opposed excluding something from the Presidential Records Act that you think belongs there What right you have private party say, not particularly happy with the balance that has been struck under the Presidential Records Act here? 
MR. BEKESHA: Well, the Arms trong cases were during the presidency; and although won't concede that point, would say that under Arms trong, President Clinton was still office and making these audiotapes, this point, under Arms trong, may not able and ask the Court deal with the creation, the management, and the disposal the records But these are different times know these records exist know they 've been created. don know how they were necessarily managed during the presidency. don't know what happened them when President Clinton's term ended. All know that archives does not have the records and they don't believe they are presidential records and we're trying figure that out We're asking the Court make determination based the evidence provided that these records are presidential records, and once they're presidential records, other obligations take effect. 
THE COURT: How can make that decision without the information that would really only the president head, what they were created and utilized for? 
MR. BEKESHA: Well, that's the problem. Archives thinks they can still make that determination. They, fact, make that determination, we're challenging their determination We're challenging that their decision was arbitrary and capricious because they never reviewed the records, they never asked President Clinton about the records. They looked our letter and said, don' think these are presidential records, they're not subject FOIA, we're challenging that decision. 
THE COURT: Well, Court could review the decision presidential versus personal, how would about doing that? What the standard review? 
MR. BEKESHA: Well, first, the standard 
review --the Court would reviewing the determination. 

wouldn --and once you get that point
THE COURT Right But supposed defer? get novo? depends what was prepared utilized for. How would make that determination without input from the president? And doesn't the lack any mention any this the statute sort point the notion that once done, done? 
MR. BEKESHA: don't think so. once it's done, done, the president could classify not classify, nothing, and then take all his papers and records with him the last day. And archives would say, oh, well, can't anything about that don't believe that was the intent that Congress had mind. 
THE COURT All right Well, let say President Clinton took everything with him, and not just these tapes 
MR. BEKESHA: Uh-huh. 
THE COURT --and there was essentially abuse 
the Presidential Records Act, and was matter history, held press conference and said, taking every 
single piece paper the White House with me, there, 
and leaves What can the archivist under the statute? 
MR. BEKESHA: Under the statute, the archives 
required assume custody and control. Exactly how the 
archives goes about doing that part the discretion that 
archives has But we're not challenging the enforcement mechanism how they get somewhere they're trying get --if we're point and they're trying get point and and the middle, we're not challenging whether 
they choose point whether they choose point whether not they file court action, have the attorney general file 
court action, whether they try physically seize the 
records make phone call. All 're saying they have 
requirement so. How they about doing for the 
archives choose, but they're required so. 
THE COURT And you get all that out the sentence Section (f) mean doesn the fact that the Presidential Records Act itself specifies the administrative enforcement remedy available under the Federal Records Act indicate that that the enforcement mechanism and the only enforcement mechanism? 
MR. BEKESHA: don't believe so, Your Honor. mean also -THE COURT What does "assume custody and control" mean your view? What you want them 
MR. BEKESHA: Because they are also required make them available the public "assume custody and control" would take control the records have somebody else take control the records review the records because there personal information
THE COURT How they take control? got them have them. issues press release, I've got them. I'm taking them New York with Buddy. Then what? What are they supposed do? 
MR. BEKESHA: said, there are many options 
They 
THE COURT Tell one 
MR. BEKESHA: One option they can call President Clinton and ask There nothing the records 
THE COURT Okay says Now what? 
MR. BEKESHA: They write nice letter. They maybe use one these enforcement mechanisms Maybe they try something else. mean the idea is, also, you know, Section 2202 says, the United States shall reserve and retain complete ownership, possession, and control presidential records Under the Presidential Record Act, these records are United States property. They are supposed stay within the United 
States government you take everything combined and you 
take the Public Records Act and you look all those sections whole, archives required have custody and control presidential records because they're United States government property and they' supposed make them available the public, you know, years, years, years, years, its designated such, and they're supposed process them through FOIA, and they process 
them through FOIA, they can segregate. don't dispute that 
some these records could more audio diary; but whole, they're presidential records and archives required process them such 
THE COURT: Well, what your response the Court's holding the CREW opinion that there private right action under the PRA? 
MR. BEKESHA: have brought this claim under the APA THE COURT: Well, you've brought under both. Are only talking about APA? MR. BEKESHA: The decision whether not these are 
presidential records our focus 
THE COURT Okay 
MR. BEKESHA: our focus the APA and the 
determination that archives made. Where Presidential Records Act and where FOIA comes into play that the decision was based the Presidential Records Act; but the focus --our 
claim, our argument solely the APA, that was --that 
the determination was arbitrary and capricious and that these records are presidential records 
THE COURT: Well, why arbitrary and capricious? you say the final agency action the letter saying, opinion, based the record before me, these are private, and you say that that final decision, and you say that that reviewable decision, and that decision that the 
archivist was entitled make under the statute --which I'm not sure about but let's assume you're right about all those things and they made it, and agree with you that 
final --what measuring against find arbitrary and capricious? I'm using the APA, doesn't that mean that have give them deference? 
MR. BEKESHA: There deference involved but --and don want ahead and read our five-page letter --but the Court looks through the five-page letter that wrote appeal 

THE COURT: No, read it. 
MR. BEKESHA: --we pretty clearly establish that these were presidential records talk about all the instances that these are presidential records, about conversations President Clinton had with foreign dignitaries, with congressmen, with senators, talking about policies, trying determine who going his next secretary state, believe. These are all conversations about policy, even some instances where Taylor Branch went off foreign country and came back and reported the president about what saw there. These are all discussions that aren't like diary. diary something you usually write the end the day, the end the week your point view what --of what occurred. This actually what occurred was occurring. It's different than, you 
know this very similar --counsel was talking about this 

idea 
THE COURT Let say you 're right because think there something least the portions the tapes where he's doing something else other than just chatting with Taylor Branch. Taylor Branch watching him his job. It's record his doing his job. That still doesn necessarily fall within the definition because personal talks about what you with the record and whether you use the record the course your government business. And don believe there anything your letter that suggests used the recordings for anything other than personal purposes But let's say you are right and --after got off the phone took his tape with Taylor Branch and sent his chief staff and said, listen this great conversation just had with the foreign leader, wasn't brilliant, and you think made the right decision should call them back? let's say some portion them fall within presidential records Why your injury redressable? Why doesn't that just sort end the lawsuit? 
MR. BEKESHA: Well, under --going back the Judi cial tch Commerce case, the FACA case where talked about standing the FACA context, there --I mean think fall within there. Because the records were determined not presidential records, fail --archives doesn't have obligation process the records and because that don't have access the records think --if the system worked and you went through the checklist, once they're determined presidential records, archives assumed custody and control the records and then they make them available. Because the determination was these were not presidential records therefore they fall outside the context FOIA, don't get the records and that's our injury. Our injury that Judicial Watch well 
THE COURT But Judicial Watch said that the defendant that case was subject statutory obligations under the particular statute that were within the agency's power discharge 
MR. BEKESHA Yes 
THE COURT: And what they're saying just simply not within our power what you want assume custody and control the records and you keep repeating that phrase, and keep asking you what does that mean, what they have the statutory authority other than exercise their unfettered discretion ask the attorney general try get them, and you haven't pointed anything the statute that they have the authority do, and think that's kind where this sits the moment. 
What enforcement mechanism what thing what power can 
they exercise under the statute that can order them 

that makes your injury redressable? 

MR. BEKESHA: Once the records are determined presidential records, there obligation assume custody and control them. How --and will just say, once again, how they about doing that --Judicial Watch not challenging how. We're not challenging whether they use one enforcement mechanism another The statute
THE COURT just want you tel what they have other than the one that they have that they don have Under the APA, for instance, can only order agency what has do. 
MR. BEKESHA: Yes 
THE COURT And under the statute they don't have after misclassified records They can choose after misclassified records And that why want know what that you see that they have the statutory power 
that they also have the statutory obligation 
MR. BEKESHA believe they have --I keep repeating myself. THE COURT assume custody and control their records 
MR. BEKESHA: Yes, sound like broken record, but this obligation will exist You know, once determination that they are presidential records this obligation created; and once that obligation created, sets --there may other options --Judicial Watch harmed that determination because ends everything. It's final, it's determinative, and there redressability --I mean there other way challenge this determination. And once the determination made that's presidential records opens the door. leaves for the possibility that archives will out and get the records leaves the possibility that they'll use one their enforcement mechanisms they may use other avenues get them. 
We're challenging the determination. We're not challenging archives' failure bring enforcement action. didn't get there. That's not before the Court. What's before the Court 
THE COURT: Why isn't that what should happen next? 
MR. BEKESHA: this Court agreed and found that the records were presidential records and ordered archives the best abilities, seek assume custody and control the records, would bring next step. archives didn't use their --you know, all their powers the best their ability, there would 
THE COURT We're talking about very mushy unenforceable orders this point. mean just don't think could issue order that says try your best Then how would anybody able ascertain whether they've complied. 
MR. BEKESHA: archives did nothing, they wouldn't complying they asked President Clinton turn over 
the records and did, they would complying opens the door for Judicial Watch redressed, have the records determined presidential records and then properly processed presidential records are supposed be. Once again, you know, archives can pick and choose how they can about assuming custody and control, but they have under the statute 
THE COURT But the statute only has them assume custody and control what has been designated the president presidential records Earlier the statute the president who exercises the authority classify them one way the other and then they get what presidential, they don't get what's personal. And you're basically asking enforce the definition section opposed asking enforce the section that tells under which the archivist has authority one way the other. 
MR. BEKESHA: But once the definition section enforced, then the other sections fall into place record determined presidential record, archives can' sit back and nothing. mean these are United States government property. They are supposed made available the public. the definition important. The determination what presidential record important 

because leads everything else. 

THE COURT But the statute doesn't include private right action. The statute doesn't include judicial review provision. Doesn't all that suggest that misclassified records are only subject the enforcement --the one mechanism that set forth the statute, which that they can exercise their discretion ask the attorney general and Congress something about this? 
MR. BEKESHA: No, but also leaves open the opportunity bring APA claim for that because there remedy, there avenue vehicle bring such challenge specifically under the PRA, and that's why we're focusing the determination made archives its two letters 
THE COURT: Well, they say that the determination they make essentially invoke the enforcement mechanism not and that that discretion broad that unreviewable. What your response that? 
MR. BEKESHA: That they didn't make determination about the failure bring enforcement action; they made solely determination about whether not these records are presidential records, and their determination was that was not There nothing their determination saying --under their theory, they could have said, these are presidential records but don' invoke the enforcement mechanism. That would have been different determination and something else may have possibility --I don't know --to challenge, but 
that wasn their determination Their determination was only this --are these records presidential records 
THE COURT And what was the source their authority make that determination all? 
MR. BEKESHA: Their source would the PRA and their --the overall objective make presidential records available the public. 
THE COURT: What part the PRA accords the archivist opposed the president any authority whatsoever classify things presidential versus personal? Isn't that decision committed the president under the act? 
And agree with you, the letter purports make decision
MR. BEKESHA: Uh-huh. 
THE COURT: --and find that troubling, and see why you took the approach you took light receiving the 
letter you received. But where they have the authority any classifying reclassifying? mean initially thought this lawsuit was about your asking them sort reclassify. Now you're saying they went ahead and classified and think they 're wrong and that reviewable agency action 
MR. BEKESHA: Uh-huh. 
THE COURT: --and that has some force it. But 

don know that they had the power that all anywhere under this statute. don't see anywhere where Congress gave the archivist the opportunity decide what the president personal not 
MR. BEKESHA: During his term there --I mean they have --archivist has authority during the president's term make classification. That solely the president 
THE COURT: Well, after his term, how does that change? What's personal personal What used for, what thought was for, what created for, and that's why says, under Section (b), they should categorized presidential personal upon their creation receipt 
MR. BEKESHA: Yes The president required classify the records, possible. But does not --it does not say that only those records classified the president are presidential records. They're just saying he's supposed classify. holds one sheet paper up, puts one one box, one the other. That's what his requirement is. takes, for example, his daily calendars maybe his notes his speeches, speech that just --one his speeches and puts that the personal records box, that doesn't make personal record, that just means that President Clinton classified personal record. 
THE COURT Right And Armstrong says, while he's doing that, there judicial review whatsoever. What does has unfettered discretion 're going trust him right. Congress trusted him right. has unfettered discretion it, though the archivist allowed raise his hand and say, Mr. President, how about this, how about that, but very, very limited authority veto what doing. Even literally shredding presidential records may dispose presidential records and there nothing can about 
MR. BEKESHA: Correct. 
THE COURT: And that, seems me, even more troubling than what you're talking about. can that, why can't this? 
MR. BEKESHA: could classify them such and maybe did and maybe didn't. don't know. But still under the obligation --but archives still under the obligation take possession presidential records 
Now, they could --Congress could have easily the definition presidential records said presidential record this and list what makes presidential record and then said, and classified the president. But they didn' They didn focus the president classification the definition presidential record. They focused the substance 
THE COURT Well but they Section 2203 
specifically talk about the classification process taking place 
MR. BEKESHA: Well, that talks about the management and custody the records mean that the section in, section how manage these. Congress was concerned that 
THE COURT: Well, said, Section (b) the only section could find that talks about personal all other than the definition section, and they have the categorization presidential versus personal taking place during the presidency, which makes perfect sense. 
MR. BEKESHA: Right, but they didn' need say personal records there. They could have just said, falls the presidential mean not presidential record 
THE COURT Right 
MR. BEKESHA: --then personal record. 
THE COURT Right And that seems vest exclusive authority for saying this personal the person who would know 
MR. BEKESHA: gives him that ability classify that time, but doesn't mean that something classifies that time is, fact, personal presidential. just means needs classify make easier for management during his term and then after his term for archives the president didn't classify and didn't manage his records, 
didn't think about it, there was system set up, then you'd have problem. the end the term, you'd have big stack papers, one page personal, one page presidential, and archives would have sort out and figure out. Congress here was trying make easy for archives They were trying say the president needs classify records Just because classifies doesn't mean presidential record. 're also not asking for archives fishing expedition and try find records that may may not exist informed archives that these records exist. Based the 
letters, almost seems suggest that archives --I'm sorry --not letters, audiotapes --that these audiotapes 
exist 're not asking for fishing expedition 
THE COURT Well feel like your entire theory works ignore Arms trong completely, and you say can ignore Arms trong completely because that was during the presidency, and Arms trong during the presidency, and CREW during the presidency, and American Historical Association different Are you hanging your hat anything other than Judi cial tch Commerce, writing blank slate here? 
MR. BEKESHA: None these issues were before the 
Court And that happens Armstrong was the first time 

that was before the Courts.  THE COURT just want know I'm right that  you 're saying writing blank slate?  MR. BEKESHA Yes  THE COURT Okay  MR. BEKESHA Yes don think the current case  law discusses this issue all and that happens And  yes blank slate mind what the PRA says and the  obligations that archives has  THE COURT Okay let's back original  ques tion What the standard review applied  classification decision? Are you saying arbi trary and  capricious because getting through the APA?  MR. BEKESHA Yes mean that our argument that  the determination was arbitrary and capricious How review  the audiotapes mean would mean fficult answer  THE COURT important question  MR. BEKESHA and appreciate that just  thinking you know  THE COURT You 're telling Judge you absolutely  get review And saying okay, what the  MR. BEKESHA Right mean would arbitrary  and capricious because under the APA Our claim that  they acted arbitrarily and capriciously, and then you would take into account the facts alleged and whether not their decision was merited based the facts presented them the letters and also the complaint THE COURT: Well, and giving them Chevron 

deference because they're the agency given the authority implement this statute under the Presidential Records Act? MR. BEKESHA: think because the decision was arbitrary doesn't matter what standard you review under. The letters clearly establish that these records are 
presidential records; that even with some deference, which the agency doesn't even --I mean they don't even discuss the facts They just say these sound like personal diaries They don't even --it seems based the letters that they didn't 
even think about, well, this one end the 
conversation, you know, that recordings made the Oval Office? Those would presidential records but why not these. Oval Office operations helped set the meetings They were intimately involved the recordings They set the appointments Taylor Branch They escorted him 
sometimes into the Oval Office, sometimes into other rooms the White House. THE COURT: Well, let's say you're right about every single step this They were wrong. have the authority tell them that they were wrong have the authority 
say assume custody and control And they make phone call,  write  nice  letter  They  even  head  Observatory  Circle  and  knock  the  door  And  says  they're  records  and  closes  the  door  How  your  inj ury  something  can  redress  MR.  BEKESHA  The  inj ury  there  would  redressable  because making  determination  that  the  records  are  presidential records,  falls  under  FOIA,  and  there  would the  FOIA  statute  would  kick  THE  COURT  FOIA  only  has  give you what  they  have  MR.  BEKESHA  Yes  unless  it's  the  possess ion  another  agency 
THE  COURT  

MR. BEKESHA: could --and haven't 

THE COURT: private citizen. 
MR. BEKESHA: private citizen, but also  holds the  former  president  has  some  type  office  THE  COURT  Are  you  saying  that  order  them,  get  them,  binds  him  give  them  them  when  they  knock  the  door  MR.  BEKESHA  No,  your  order  would  not  bind  them  However  they  are  THE  COURT  even  you win  what  you  get  MR.  BEKESHA  get  the  possibility  discuss  that  when  the  time  comes  mean 've  been  redressed  mean  the  inj ury  the  determination  stops  the  proceedings  mean stops win now --we now have -THE COURT: The opportunity sue President Clinton, which you haven elected far? 
MR. BEKESHA haven elected far but that could possibility, the possibility could that turns over the records just opens the door having many --redressability could simply having them declared presidential records and then the ability have the further process under FOIA. You know, there are many different instances where agency could out and get records under FOIA 
THE COURT: This not one those. This just does not fall within --if they don't have them, FOIA doesn't help you 
MR. BEKESHA: Most likely, yes 
THE COURT Okay All right there anything else that you wanted say that took you off your outline and you didn' get say? 
You can take minute 
MR. BEKESHA: Thank you. think covered everything 
THE COURT All right Thank you very much 
MR. BEKESHA Thank you very much 
THE COURT: All right. Briefly, think understand 
all the arguments you made initially, and don't think need repeat them. The one thing that haven't really 
talked about the only thing talked about, which the mandatory nature Section (f) where says the archivist shall assume responsibility for access presidential records and says presidential records defined the definition section, these meet the definition, therefore you have duty that enforceable this Court reviewable this Court What you say that? 
MR. SCHWEI have two responses that The first that Your Honor alluded argue that whatever that duty within Section 2203 (f) is, only applies the specific collection presidential records designated the president Section 2203 (b) contemplates, which there are two pre-existing collections that get --one gets transferred the end the term; personal records not 
The second argument that even the language 2203 (f) does not actually impose duty to, quote, assume custody and control. What 2203 (f) actually says is, quote, assume responsibility for assume custody and control which very different, because the D.C. Circuit stated the American Friends Service Committee Webster case, when statute says --a statute there said NARA shall have responsibility conduct inspections records; and the 
D.C. Circuit, that case, stated NARA does not have mandatory duty conduct inspections NARA has the responsibility and the prerogative, but not the type mandatory duty and certainly not the type specific unequivocal command that required under the APA for this Court order NARA actually comply with that section. 
THE COURT: that cited your reply, the case you just cited me? SCHWEI Yes Your Honor 
THE COURT Okay right think you said you had two answers That was the second answer The first answer was Section (b) 
MR. SCHWEI Correct 
THE COURT that puts them the two boxes 
All right. there anything else you want say response what said? SCHWEI think 're content rest our briefs Your Honor 
THE COURT Okay Thank you very much very much appreciate the quality the arguments this morning. very interesting case. think, based upon everything read, that are writing relatively blank slate, which makes interesting, but also means need think about it, and I'm going take under advisement And thank you very much 
(Proceedings adjourned 11:31 a.m. 
CERTIFICATE OFFICIAL COURT REPORTER Patricia Kaneshiro-Miller, certify that the foregoing correct transcript from the record proceedings the above-entitled matter 
__-1) /3lL 1_________ 
PATRICIA KANESHIRO-MILLER DATE  34:22, 34:25, 35:2,  50:15 :16, 45:19, 45:21  12:14, 12:23, 12:25,  
35:3, 35: 12, 39:18,  agreement [1J 6:16  46:5, 58:12, 58: 15,  13:4, 14:23, 15:2, [1] -44:22 :31 [1] -63:24  40:12, 40:14, 40:17, 42:18, 43:13, 43:14, 44:15, 44:18, 45:16,  ahead 121 -46:8, 53:23 allegation 121 -21: 18, 28:25  58:23, 59:8 archive's 121 -25:20, 32:21  15:7, 17:3, 17:10, 17:14, 38:7, 39: 19, 40:2, 40:4, 40:10, [1] -44:23 1992 [1] -16:2  45:17, 59:6 act [8J -7:6, 13:22,  allegations [3J -4: 18, 5:14, 6:6  archives [48] -6:20, 10, 28: 14, 28:21,  40:18, 40:20, 40:22, 55:1, 57: 17, 57: 18,  
14:7, 14:8, 16:7,  allege 111 -7:18  29: 13, :9, :22,  57:19, 57:25  20:13, 23:2, 53:13  alleged 1121 -4:8, 4:9,  33:5, 34:5, 34:13,  arrival [3J -27:9,  
acted 111 -58:25  5:17, 9:6, 9:8, 9:19,  35:13, 35:24, 36:8,  27:12, 27:21 [2] -15:2, 44:23 [2] -9:6, 26:13 2112(c [5] -8: 19, 34:6, 34:8, 34:13, 34: 2202 [1] -44:13 2203 [1] -56: 2203(b [1] -62:13 2203(f[3] -62: 11, 62:17, 62:18  acting 121 -15:25, 23:21 action [33] -5:23, 6:1, 6:7, 6:8, 6:23, 9:8, 12, 9:13, 9:23, 10:7, 10:1 10:25, :3, 23:23, 25:2, 25:4, 26:20, 27: 13, 27:16, 28:7, 28:1 28: 15, 37:4, 37: 10,  19:7, 31:21, 33:17, 39:9, 39:11, 59:1 allegedly 121 -18:22, 20:12 alleging [1] -16:22 allow [4J -12:14, 12:17, 13:25, 22:23 allowed 111 -55:6 allows [3J -8:20, 12:6, 37:  36:9, 36:15, 37:12, 37: 16, 37:20, 39:3, 39:11, :3, 41:12, 42: 11, 42:22, 42:24, 42:25, 43:9, 44: 19, 45:2, 45: 15, 48:1, 48:5, 50:6, 50:16, 50: 18, 50:25, :6, :20, 52:13, 55:17, 57:1 57:6, 57:7,  ascertain 111 -50:24 aside [3] -6:23, 16:4, 35:6 assassination 111 16:1 Association [3J 16:10, 36: 12, 57:20 assume [26] -28:20, 29: 10, 29: 16, 29:20, 30:1, 30:3, :18,  
38:2, 43:5, 43:6,  alluded 111 -62:10  57: 10, 57: 12, 57: 13, :22, 32: 14, 35: 13,  
45:6, 45:22, 50: 11,  almost [4J -22:9,  58:9  35:18, 39:13, 42:23,  
52:2, 52:20, 53:24  22:11, 22:14, 57:  archives' 121 -39:15,  43:18, 43:21 46:2,  
4[1] -4:24  actions 111 -34:  American [4] -16: 10,  50:  48:17, 49:3, 49:20, activities 111 -38:  36:12, 57:20, 62:21  archivist [65] -4:24,  50:17, :9, 59:25,  
---------- actual [3] -9:14, 10:9, 26:8  annotated 111 -9:1 answer [8] -7:25,  7:15, 7:22, 8:4, 8:5, 8:14, 15, 8:20,  62:4, 62: 17, 62:19 assumed 121 -36:9,  
add 121 -22:5, 24:20 19, 14:3, 14:21,  8:24, 9:13, 9:17,  48:5 [1] -44:22  additional 121 -24:20,  38:5, 58:17, 63:9,  10:10, 11:11, :13,  assumes 111 -35:24  
25:25  63:10 :14, 13:18, 13:22,  assuming [4J -6:5,  addressed 111 -14:23  answering 111 -23:18  14:1, 14:4, 14:12,  6:24, 28:22,  
addressing 111 -40:6  answers 121 3:16,  14:13, 14:18, 14:20,  assumption 111  
a.m 111 -63:24 abilities 111 -50:17 ability [3J -50:20, 56:22, able !5J -12:20, 36:20, 40:11, 40:22, 50:24 above-entitled 111 64:5 absolute 111 -31 absolutely 111 -58:21 abuse 111 -42: acceding [1J -17:2 access [8J -4:9, 18, 13:3, 13: 12, 24:22, :20, 48:2, 62:4 according [3J -4: 18, :15, 39: accords 121 -39: 19, 53:10 account 111 -59: accounts 111 -17:21 accurate 121 -12:20, 12:21 Act [29J -4:2, 12:7, 12:8, 13:3, 14:6, 15:14, 15:15, 17:20, 23:2, 29:25, 34:17,  adjourned 111 -63:24 administration 121 6:21, 15:1 administrative 121 17:24, 43:13 Administrative 111 4:2 advisement 111 63:23 agencies (3] -10: 15, 13:1, 18:4 agency [30J -5:25, 6:23, 10:12, 10:16, 10:25, 11:1, 11:4, 11:20, 13:1, 14:9, 23:22, 25:2, 25:3, 26:20, 26:22, 26:24, 27:13, 27:16, 28:7, 28:1 28:15, 45:22, 49:11, 53:24, 59:5, 59:11, 60:11, 60:12, :10 agency's [4J -11 :2, 25:7, 27:12, 48: agree [7] -5:4, 5:7, 6:25, 7:1 7:3, 46:3, 53: agreed 121 -11 :7,  63:9 antecedent 121 :17, 11:21 APA[19J -10:19, 10:24, 10:25, :8, 12:15, 17:12, 26:16, 37:18, 37:19, 45:8, 45:10, 45:14, 45:18, 46:5, 49:10, 52:10, 58:13, 58:24, 63:3 appeal [5J -4:23, 6:2, 24:24, 25:4, 46: applied 111 -58:1 applies [4] -7:21 34:22, 35:5, 62:1 apply [3J -8:3, 10: 16, 10:25 appointments [2J 18:1 59: appreciate 121 -58:19, 63: approach 111 -53: appropriate 111 14:14 arbitrarily 121 -7:6, 58:25 arbitrary 1121 -6:8, 9:9, 10:19, 26:16,  15:22, 16:14, 16:18, 16:21, 16:24, 16:25, 17:5, 17:25, 19:4, 21: 16, 23: 18, 23:20, 24:2, 24:4, 24:6, 24:18, 24:21, 24:25, 25: 10, 26: 12, 26:14, 27:3, 27:4, :2, :3, :15, :17, :18, 34:1, 34:8, 37:5, 38:5, 39:21, 42:21 46:1, :17, 53:10, 54:4, 54:7, 55:5, 62:3 archivist's [8J -6: 9:5, 9:22, 10:3, 14:2, 16:4, 24:1, 24:8 argue [4] -12:15, 12:17, :5, 62:10 argues 111 -37: argument [6J -21 :6, 25:2, :21 45: 18, 58:14, 62:16 arguments [6J -8:2, 18: 18, 22:22, 23:7, :25, 63:18 Armstrong [28] -5:22, 12:1, 12:5, 12:13,  28: attempting [3J -14:17, 17:18, 17:19 attention 111 -37:6 attorney -13:18, 14:2, 14:8, 14:14, 14:20, 26:14, 34:7, 34:21, 43:5, 48:20, 52:7 audio [3] -18: 13, :9, 45:1 audiotapes [17J -4:10, 4:1 4:12, 5:18, 6:18, 8:7, 20:12, 21:21, 25:24, 29: 13, 39:4, 39:5, 39:8, 40:21, 57:14, 58:16 authority [38J -4: 11, 8:5, 13:19, 16:13, 16:15, 16:24, 26: 13, 29:23, 30:7, 30:23, 15, 33:3, 33:6, 33:9, 34:1 34:2, 34:23, 35:5, 35:7, 35:11, 35:17, 37:19, 38:1 48:19, 48:22, :12, :17, 53:5, 53:1 53:19,  
54:7, 55:7. 56:20,  58:14, 58:19, 58:23,  button [1J -21  18:3, 37:4, 38:2 12. 53:12, 54: 16,  
59:5. 59:23, 59:24  59:7, 60:5, 60:10,  change [2J -15:10,  54:19, 55:15, 56:22.  
authorizes [11 -4:2  60: 13, 60: 15, 60:20,  54:11  56:25, 57:2, 57:8  
available [19] -11 :8,  60:23, :4,   characterization [11  classifying [3J _13:6,  
14:5, 14:7, 16:3, :20. :23  24:3  38:18, 53:20  
20:11. 26:7. 30:2,  belief [3J -4:22. 28:21  calendars [1J -54:21  chatting [2J -18:8,  clear [2J -18:16, 24:10  33:23, 35:2, 35: 35:15, 35:19, 39:1 43:14, 43:21 44:22. 48:6, :22, 53:9 avenue [1J -52:11 avenues [1J -50:9 avoid [41 -15: 19, 15:22, 23:6, 23: awful [1J -29:1 [2] -32:10, 33:11 BAKESHA [1J _30:9 balance [2J -13:1 40: bang [1J -29:12 based [19J -5:8, 7:9, 8:8, 12:12, 19:6, 19:9, 20:18, 26:6, 30:20, 33:18. 36: 17. 39:4, :6, 45:17, 45:23, 57:12, 59:2. 59: 13, 63:19 basis [4] -9:25, 1o:1 10:2, 11:21 bears [11 -7:17 become [1J -8: behind [1J -30:8 BEKESHA [871 -28:5, 28: 19, 28:24. 29:2, 29:5, 29:9, 29:22, 29:25, 30:6, 30: 13, 30:16, :5, :17 32: 32:3, 32:16, 32:25, 33:5, 33:12. 33: 15. 34:4, 34: 35:11, 36:5, 36:13, 37:6, 37:24, 38:6, 38:9, 39:2, 40:2, 40:9, 40: 18, :12, :24, 42:8, 42: 16, 42:22. 43: 16, 43:20, 44:4, 44:7, 44:1 45:7. 45:1 45: 14. 46:7, 46:12, 47:21, 48:14, 49:2, 49: 12, 49: 18, 49:22, 50:15, 50:25, 18, 52:9, 52: 19, 53:7, 53: 16, 53:25, 54:6, 54: 15, 55: 11, 55: 15, 56:4, 56: 13, 56: 18, 56:22, 57:24, 58:4, 58:6,  33: believes [4J -8:20. 8:22. 15:9, 24:5 belong [1J -40:12 belonged [1J -9:2 belongs [1J -40:14 best [4J -18:4, 50:17. 50:19. 50:23 betteq11 -27:1 between [2J -8: 11, 13:12 beyond [1J -6:10 big [1] -57:5 bind [1J -60:20 binding [1J -25:6 bindS [1] -60: blank [41 -57:22, 58:3, 58:8, 63:21 Block [11 borne [31 -22: 13, 23:9, 24:23 bound [21 -13:24, 16:25 box [4J -32:13. 32:14. 54:20. 54:23 boxes [2J -32:12, 63:12 Branch [8J -18:8, 14, :24, 46:19, 47:6, 47:14. 59: brief [4J -11 :19, 12:9, 15:2, 17:18 briefly [1J -61 :24 briefs [1J -63: brilliant [11 -47: bring [101 -9:23, 10:7. 22:2, 37:15, 40:11, 50:11, 50:18, 52: 10, 52:1 52:20 bringing [3J -12:12, 12:15, 12:17 broad [1J -52:17 broken [1J -49:22 brought [3J -8:25, 45:7, 45:9 Buddy [1J -44:2 Bush [1J -36:12 business [16J 8:10, 19:1, 20:6, 21:1 :2, :5, :9, 21:12, :20, 22: 22:2, 22:1 22:15, 22:17, 47: busy [1J -22:11  cannot [71 -4:4, 4:1 4:12, 4:14, 9:21, 11:23. 35: capricious _6:8, 9:9, 10:20, 26:16, :16, 45:19. 45:21 46:5, 58: 13. 58: 15, 58:24 capriciously [2J _7:6, 58:25 captured [1J -22:2 capturing [1J -20:5 carve [1J -10:24 carve-out [1J -10:24 case [23J -11 :15, :25, 16:10, 16:11 16:16, 16:17. 16:19: 22:16, 24:15, 24:16, 27:1, 34:16, 34:23, 36:25, 37:7. 47:22. 48: 11, 58:6, 62:21. 62:24, 63:5. 63: cases [3J -11 :18, 40:2. 40: categorization [1] 56:11 categorize [2] -30:23, 33:1 categorized [41 _32:8, 32:18, 54:13 categorizes [11 _33:2 category [1J -32:11 cautious [2J -22:20, 23:5 certain [3J -16: 13, 16:19, 22: certainly [7J -22:5, 22:9, 24: 10, 25:3, 25:9, 28: 17, 63:2 CERTIFICATE [1J 64:1 certify [1J -64:3 challenge [71 _9:9. 22:23, 23:6, 37: 16, 50:4, 52: 12, 53:2 challenges [1] _23:11 challenging [141 6:17, 12:10, 17:22, 36: 13, 36: 15, :14, :15, :20, 42:25, 43:3, 49:6, 50:10, 50:11 Chaney [71 -10:6, 10:23, :2, :25,  47:5 check [2J -13:23, 15:8 checklist [1J -48:4 checks [1J -14:22 Chevron [1J -59:4 chief [1J -47: choose [7J -13:25, 17:25, 43:4, 43:9, 49:14, chose [4J -13:23, 17:24, 17:25. 18:5 Circle [11 -60:1 Circuit [8J -10:14, 10:23, :6, 15:2. 15:7, 23:8, 62:20 62:24 Circuit's [4] -5:22, :15, :24, 22:16 circumstances [3] 12:4, 37:18, 38:10 cite -11: cited [2J -63:5, 63:6 cites [1J -21 :13 citizen [2J -60: 14, 60:15 claim [20J -6:5, 10:2, 12:8, 12:12, 12:14, 12:15, 12:16, 12:17, 17:12, 25:22. 25:25, 26:8. 26:10, 39:24, 45:7, 45: 52:10, 58:24 clarify [1J -36:20 classification [271 5:23, 6:1 6:15, 6:16, 6:22, 7:5, 7:1 7:11. 7:22, 8:16, :13, 12:3, 16: 13, 17:5. 17:22, 22:24, 23:21 25:12, :6, 36:25. 37:23, 40:8, 54:8, 55:23, 56:2, 58:12 classified [13] -6:18, 6:1 8:21 30:10, 32:23, 33:1 36:7, 36: 36:21 53:23, 54: 17, 54:25, 55:22 classifies [6J -13:15, 30:18. 30:19, 36:4 56:23, 57:9 classify [17J -7: 17. 8:6, 32:15, 33:4, 38:17, 39:25, 42:9,  clearly [6J -16:21, 13. 25:19, 33:22, 46: 12, 59:9 Clinton [24J -6: 18, 18, 18:22, 19:5. 20:12. 20:20, 29:15, 30:10, 32:22, 35:9. 36:7, 36: 14. 36:16. 36: 19. 38:9, 40:7, 40:20, :17, 42:15, 44:8, 46: 15, 51: 54:25, Clinton's [61 -19:2, 20:17, :10, :22, 29:12, close [11 -8:13 closes [1J -60:3 collection [1J -62:12 collections [1J -62:14 combined [1J -44:17 command [1J -63:3 Commerce [2J -37:7, 57:22 commerce [1J -47:22 committed [5J _10:25, 11:4, :14, 23:15, 53: Committee [1J -62:21 communicated [71 19:1, 20: 10, 21:1, :5, 21:8. 21:1 :19 compel [4J -4:4, 13:25, 14:18, 16:18 complaint [17] -4:6, 19, 5:8, 12, 5:17. 6:4, 17, 9:7, 9:9. 9:14, 9:15. 9:20, 19:8, 21:19, 24:19, 28:22. 59:3 complete [4J 5:1, 24:1, 39:20, 44: completely [3J 24:23, 57:17, 57:18 complied [1J -50:24 comply [1J -63:4 complying [21 -51 concede [21 -17:18, 40:19 concedes [3J -12:9, 12:10, 12:11 concern [1J -13:7 concerned [21 _13:6,  

56:7 	8:22, 18:2, 24:6, 25:19, 26:4, 26:10, 8:22, 24:6, 29:10, declines [1J -11 :20 
conclude [1J -21 29:10, 29:17, 29:20, 26:25, 27:8, 27: 13, 29:16, 30:1, 30:3, defect [2J -4:5, 5:20 
concluded [3J -17: 11, 30:1, 30:4, :1, 27:17, 27:21, 27:24, 31:1, 31:19, 31:23, defendant[1J-48:10 
20:19, 28:6 31:3, 31:19, 31:23, 28:4, 28:17, 28:22, 	32:14, 35:13, 35:18, defer [1J -42:2 
conclusion [2J -6:20, 32:15, 35:13, 35:18, 28:25, 29:3, 29:7, 35:24, 39:13, 42:23, deference [5J -22:7, 
31:24 	35:24, 39:13, 39:20, 29:19, 29:23, 30:3, 43:18, 43:21, 44:19, 46:6, 46:7, 59:5, 
conduct [4J -20:6, 42:23, 43:18, 43:21, 30:7, 30:12, 30:14, 48:5, 48:17, 49:3, 59:10 
22:2, 62:23, 62:25 43:22, 43:23, 43:25, 30:22, :13, :24, 49:20, 50:17, :7, defined [1J -62:5 
conducted [1J -21 :15 44:14, 44:19, 48:5, 32:2, 32:4, 32:23, 51: 10, 56:5, 59:25, defining [4J -12:6, 
conducting [1J-18:10 48:17, 49:4, 49:20, 33:3, 33:8, 33:14, 62:18, 62:19 12:18, 12:21, 17:17 
50:17, :7, :10, 33:25, 34:8, 34:25, 
conference [1J -42:19 	definition [12J -20:22, 
59:25, 62:18, 62:19 35:25, 36: 11, 37:3, 
conform [1J -12:22 30:16, 31:10, 47:8, conversation [3J -37:21 38:1, 38:8, 
confusion [1J -24:15 51:15, 51:18, 51:23, 19:18, 47:15, 59:15 38:15, 39:18, 40:8, 
Congress [29J -13:23, 	55:20, 55:24, 56:10, 
D.C [12J -5:22, 10:14, conversations [4J -40:10, :9, :21 
13:24, 14:1, 14:13, 	62:6 
10:23, 11:5, 11:15, 33:20, 46:15, 46:18 42:2, 42: 14, 42: 17, 
14:19, 14:24, 15:8, delegated [2J -16:14, 11:24, 15:2, 15:7, 
core [1J -25: 43:10, 43:18, 43:25, 
15:9, 15: 15, 15:24, 	24:1 
22:16, 23:8, 62:20, 
15:25, 16:2, 16:6, demand [1J -30:8 

correct [14J -10:22, 44:6, 44:9, 45:4, 62:2415:21, 16:7, 21:1, 45:9, 45: 13, 45:21, 
17:24, 22:20, 22:22, 	Department [2J -8:25, 
daily [1J -54:21 
23:2, 23:5, 23: 14, 37:7

28:18, 29:2, 29:22, 	46:11, 47:3, 48:10, danger[1J-15:16 
32:1, 32:3, 32:25, 48:15, 49:8, 49:13, 
24:7, 38:12, 39:21, 	deposited -34: 
DATE [1J -64:9 34:10, 55:11, 63:11, 49:20, 50:14, 50:21, 
42:13, 52:7, 54:3, 	designated [4J 
day-to-day -38: 55:4, 55:19, 56:6, 23:19, 44:23, 51:10, 
64:4 :9, 52:1, 52:15, [1J -42:3 
57:7 	correctly [2J -7:16, 53:5, 53:10, 53:17, 62:12 
38:6 	54:1, 54:10, 55:1, dead [3J -27:9, 27:12, 
Congress's [1J -15:6 designates [1J -30:5 counsel [1J -47:1 55:12, 56:1, 56:8, 27:21
congressmen [2J -designating [1J -13:9 56:17, 56:19, 57:16, deal [2J -9:14, 40:23 
33:21, 46:16 country [1J -46:20 
determination [40J 58:2, 58:5, 58:10, dealing [2J -12:25, couple [1J -22:4 
consequences [1J	6:22, 6:24, :22, 
58: 18, 58:21, 59:4, 15:18 
25:6 	course [8J -6:23, 
33:7, 35:23, 36: 15, 59:22, 60:9, 60:12, decide[5J -7:16, consider [4J -8:7, 21:2, 21:5, 21:8, 
37:9, 37:11, 37:17, 60:14, 60:17, 60:22, 14:14, 26:5, 31:15, 21:11, 21:20, 21:25, 
26:21, 26:23, 27:4 37:19, 37:24, 39:5, :2, 61: 12, 61; 16, 54:4
47:10 
consideration -41:6, 41:13, 41:14, :22, :24, 63:5, decided [1J -27:5 
14:12 Court [49J -4:10, 4:14, 15, :25, 42:4, 63:8, 63:12, 63:17, decision [64J -4: 13, considerations [1J -5:15, 6:4, 6:14, 7:5, 45:15, 45:19, 48:6, 
64:1 	6:13, 6:15, 7:7, 7:10, 7:15, 7:25, 9:4, 9:15, 
14:15 	49:23, 50:2, 50:4, Court's [4J -10:6, 7:11, 7:15, 7:22, 8:3, 
9:18, 9:21, 10:8, 22:15, 37:6, 45:4 8:16, 8:23, 9:4, 9:10, 
considers [2J -1O:1 	50:5, 50: 10, :24, 
10:16, 11:2, 11:20, courts [2J -17:15, 9:17, 10:3, 10:6, 
10:13 	52:13, 52:15, 52:19, 
12:20, 13:5, 13:6, 
consistent [1J -18:3 	52:21, 52:22, 52:23, 
38:11 	11:4, 11:13, 11:17, 13:13, 13:24, 16:16, 
constitute [1J -10:14 53: 53:3, 53:6, 16:23, 17:3, 17: 11, 
Courts [2J -23: 14, :23, 12:3, 12:5, 
constitutes [2J -11 :7, 	58: 15, 60:6, 60:25 
58:1 	14: 14: 19, 16:20, 23:8, 24:8, 25: 11, 
12:6 	determinative [1J cover[1J -28:1 16:21, 17:9, 17:12, 
29:9, 29:12, 36:17, 
construed [3J -10: 14, 50:3 covered [4J -13:2, 17:13, 17:23, 22:15, 
36:20, 37:15, 37:18, 
11:6, 17:15 determine [7J -4: 15, 27:24, 28:2, :21 22:16, 23:21, 23:22, 
38:3, 39:7, 40:10, 
consummation [1J -12:19, 12:20, 18:4, 23:25, 25:8, 25:12, 
40:22, 41:5, 41:21, create [1J -25:6 
25:7 	29:5, 36:18, 46:17 25:15, 25:17, 27:12, :25, 46:9, 50:12, created [11J -8:8, 
contain [2J -22:10, 	determined [7J 
27:14, 27:16, 31:9, 50:13, 50:15, 57:25, 20:3, 20:7, 20:12, 
22:12 	10:17, 17:3, 47:25, 
62:7, 62:8, 63:4 20:20, 40:9, 40:25, 37:20, 37:21, 39:25, contemplate [1J -12:2 48:4, 49:2, :4, 
40:10, 40:11, 41:9, court [2J -43:5, 43:6 41:11, 49:25, 54:12 
contemplates [1J :20 
41:15, 41:20, 41:21, COURT[136J -4:15, creates [1J -12:5 
62:13 	determining [1] 
45:11, 45:16, 45:24, 4:21, 5:6, 5:10, 5:13, creation [5J -32:9, 
contemporaneously 	10:16
45:25, 47:17, 53:13, 6:9, 7:8, 8:2, 9:4, 40:5, 40:6, 40:23, 
[1] -20:3 	diaries [4J -20: 
53:15, 58:12, 59:2, 9:25, 10:19, 11:9, 54:14 
contemporaneousne 	20:23, 22:9, 59:12 
59:712:1, 12:23, 14:4, CREW [7J -37:4, 38:2, [1] -19:24 	diary [9J -18: 13, 
decision-making [1J 15:3, 15:18, 16:9, 38:6, 38:15, 45:5, 
content (1J -63: 	18:24, 19:17, 20:24, 
25:8
16:23, 17:8, 18:7, 57:19 contest [1J -22:8 22:12, 22:14, 45:1, decisions [8J -5:22, 
18:19, 19:4, 19: 12, criteria [1J -33: context [3J -17: 16, 46:226:17, 7:5, 10:23, 
19:19, 20:4, 20:15, Cuba [1J -9:1 
47:23, 48:8 

different [13] -14: 16, 16:14, 24:9, 40:5, 
20:22, 21:13, 21:23, current [1J -58:6 contract [1J -17:1 19:16, 20:6, 20:7,40:723:13, 24:10, 25:9, custody[30J -8:14, 37:8, 37:18, 38:10, control [37J -8:21, declared [1J -61 
40:24, 46:25, 53: 57:21, :9, 62:20 differentiation [1J 
8:1 difficult [1J -58: dignitaries [2J -33:20, 
46: dimensions [1J 
24:20 disagrees [1J -18:18 discharge [1J -48:13 discovery [2J -36:24, 
37:2 
discretion [16] 10:15, 10:20, 11:1, 11:4, 11:8, 16:5, 23:16, 24:1, 26:18, 42:24, 48:20, 52:6, 52:17, 55:3, 55:5 
discretionary [3J 9:22, 9:23, 13:20 discuss [3J -7:2, 
59: 11, 60:23 discusses [1] -58:7 discussing [2J 
24:23, 25:5 discussions [1J 
46:21 dismiss [3J -6:4, 
26: 18, 36:22 dismissed [1J -4:7 disposal [3J -40:5, 
40:6, 40:23 dispose [1J -55:9 disposing [1J -39:22 dispute [1J -44:25 distinguish [2J -16:9, 
38:2 District [1J -25:10 docket r1J -20:11 documentary [1J 
32:5 documents [2J 15:16, 15:17 
done [8J -15:12, 25:10, 25:20, 25:21 42:7, 42:8, 42:9 
door [BJ -29: 13, 35:8, 
50:6, :3, 60:2, 
duty [5J -62:7, 62:1 
62:17, 62:25, 63:2 
----------------- 
.-. . -------- --------.. 
early r1J -27:25 
easier [1J -56:25 
easily [1J -55: 
easy [1J -57:7 
effect [1J -41 
eitherr1J -19:21 
elected [2J -61 :3, 
end [9J -36:3, 38:23, 

46:23, 47:20, 57:4, 
59:14, 62:15 
ended r1J -41:3 
ends [3J -16: 12, 

30:25, 50:2 
enforce [9J -4: 13, 
9:22, 11:17, 11:20, 
11:23, 17:11, 18:5, 
51:15, 51:16 

enforceable [1J -62:7 
enforced [1J -51:19 
enforcement [36] 
7:2, 8:19, 9:6, 9:13, 9:17, 9:23, 10:4, 10:7, 10:9, 10:11, 11:3, 11:12, 13:21, 15:22, 16:4, 17:24, 23:25, 25:14, 25:15, 27:4, 34:5, 34:12, 37:22, 42:25, 43: 13, 
43: 15, 44: 11, 48:24, 49:7, 50:8, 50:1 52:5, 52:16, 52:20, 
52:25 
entire [2J -24: 15, 

57:16 
entitled [3J -22:6, 

46:1, 64:5 
equivalent [4] -18:24, 

19:21, 20:2, 20:24 
escorted [1J -59:19 
essentially [4J -16: 14, 

40:11, 42:17, 52:16 
establish [2J -46:12, 

examine [1J -9:15 example [2J -32:21, 
54:21 except [1J -33:11 excluding [1J -40:13 exclusive [1J -56:20 exclusively [1J -22:14 executive [1J -32:6 exemption [1J -23:9 exercise [6J -8: 17, 
10:20, 26:13, 48:20, 48:25, 52:6 exercises [2J -33:3, :12 Exhibit [1J -4:24 exist [5J -40:25, 
49:23, 57:11, 57:12, 
57: existing [1J -62: expedition [2J -57: 11, 
57:15 experts [1J -14:20 explained [1J -25: explanation [1J -26: expounding [1J 
19:14 expressed [1J -23:9 extent [3J -29:9, 32:7, 
32:17 extremely [1J -40:3 [1] -32:2 
FACA [3J -37:8, 47:22, 47:23 face [1J -4:15 faced [1J -39: fact [9J -13: 12, 14:24, 
18:7, 19:23, 22:1, 
27:1, 41:13, 43:12, 
56:24 
facts [7J -19:6, 19:9, 20:18, 26:6, 59:1, 59:2, 59: 
factual [2J -6:6, 20:17 fail [2J -9:17, 47:25 12:17, 13:2 
Federal [6J -12:7, 17:20, 34:22, 35:2, 35:3, 43: 
federal [1J-12:18 
felt[1J -15: 
figure [3J -37:1, :5, 
57:6 file [2J -43:5 filed [5J -24:19, 26:24, 
30:24, 32:9, 32:24 filtered [1J-19:19 final [18J -5:25, 6:3, 
6:23, 6:24, 25:2, 25:3, 25:9, 25:14, 26:20, 27:13, 27: 16, 28:11, 28:15, 31:9, 45:22, 45:24, 46:4, 
50:2 findings [1J -20:17 first [16] -4:8, 8:4, 
11:14, 13:17, 25:23, 26:22, 28:7, 28:12, 30:9, 34:4, :24, 57:25, 62:9, 63:9 
fishing [2J -57: 10, 
57:15 fits [1J -33: five [2J -46:8, 46:9 five-page [2J -46:8, 
46:9 
focus [5J -21 :9, 45:12, 45:14, 45:17, 
55:23 focused [2J -40:3, 
55:24 focusing [4J -20:4, 20:5, 25:3, 52:13 
FOIA[25J -6:2, 12:12, 13:2, 24: 16, 24:17, 25:4, 25:22, 25:24, 26:8, 28:8, 35:16, 37:13, 37:14, 37:15, :19, 44:24, 44:25, 
45: 16, 48:8, 60:7, 
60:8, 60:9, :9, 
61:11, 61:13 

FOIA-based [1J 
fails [3J -6:4, 9:24, 12:12 
60:3, 60:19, down [2J -19:17, 29:  evaluate [1J -24:8 evaluation [1J -24:3 event [1J -15:23  12:13 failure [7J -9:22, 9:23, 10:7, 11:3, 37:22,  following [1J -16:8 force [1J 54:1 foregoing [1J -64:4  
drafting [2J -22:20, 23:5  eventual [1J -27:19 evidence 121 -28: 13,  50:1 52:20 faith [1] -16:5  foreign [6J -18: 11, :4, 33:20, 46: 15, Freedom[1J-12:8 freestanding [1J 
17: 
Friends [1J -62:21 
front [1J -7:5 
frustrating [1J -13: 
functional [4J -18:22, 

18:24, 20:1, 20:24 
fundamental [2J -4:5, 

5:20 
fundamentally [1J 
25:24 
fundamentals [1J -6:9 
future -22: 

------- 
-...-----------.. 
general -13:7, 
13:18, 14:9, 14:14, 
14:20, 26: 14, 34:7, 
34:21, 43:5, 48:21, 

52:7 
general's [1J -14:2 
genesis [1J -24: 
George [1J -36:12 
given [6J -5:2, 13:12, 

15:3, 30:22, 38:23, 
59:5 
government 19:2, 20:25, :2, 
21:5, 21:8, 21:12, :20, 44:17, 44:21, 
47:10, :22 

granted [1J -6:5 
great [1J -47:15 
grounds [1J -23:6 
guess [1J -6: 
guidance [1J -28: 
guidelines [7J -12:6, 

12:11, 12:18, 12:19, 
12:21, 17:14, 17:16 
guys [1J -28:6 

--------.- 
hand [2J -21 :25, 55:6 
hands [1J -14:2 

hanging [1J -57:21 
happy[1J -40:15 
harmed [1J -50:1 
hat [1J -57:21 
head12J-41:10, 60:1 
duplication [1J -20:5 during [14] -20:14, 
32: 10, 38:7, 39:20, 40:3, 40:18, 41:1, 54:6, 54:7, 56:12, 
57:1, 57:18, 57:19 exact [1J -20:5 exactly [7J -7:13, 
8:23, 11:1, 14:12, 
15: 12, 31: 13, 42:23 examination [1J -7:23 
fall [7] -8:14, 47:8, 47:18, 47:24, 48:7, 51:19, 61:13 
falls [2J -56: 15, 60:7 far [2J -61 :3, FAR!4J -12:12, 12:15, 
46:20, 47:16 
former[BJ -14:10, 14:18, 16:15, 17:1, 17:2, 34:18, 60:16 
forth [1] -52:5 forward [1J -36:25 hearing [1J -5:3 heck [1J -10:5 Heckler[5J -10:5, 
10:23, :2, :25, 
18:3 held12J-11:2, 42:19 indispensable (1J 

30:14 individual [1J -1O:12 individuals [1J -32:6 information [10J 
4:21, 15:10, 22:10, 22:12, 28:20, 33: 18, 
36:17, 36:19, 41:10, 
43:24 Information [1J -12:8 informed [1J-57:12 inherently [1J -23:25 initial [1J -15:2 initiate [3J -9: 13, 
10:11, 11:3 
injury [12J -4:8, 4:9, 4:12, 5:17, 9:12, 47:19, 48:9, 49:1, 60:3, 60:5, 60:25 
input [1J -42:5 inquiry[3J -9:16, 9:20 inspections [2J 
62:23, 62:25 
instance [6J -15:25, 16:7, 35:20, 37: 17, 37:20, 49:10 
instances[4J-21:14, 
46:14, 46:19, 61:10 instead [1J -23:18 intended [3J -14:13, 
22:23, 24:7 intent [1J -42: interest [5J -10:1 
10:13, 10:18, 22:18, 
35: interesting [4J -18: 19, 
27:18, 63:19, 63:21 interfering [1J -38:12 interrupted [1J -27:25 intimately [1J -59: invoke [12] -7:2, 9:5, 
9:17, 10:3, 11:12, 13:20, 25:13, 25:15, 35:1, 37:22, 52:16, 
52:25 invoking [1J -27:4 involved [3J -17:14, 
46:7, 59:18 
issue [22J -6:10, 6:12, 6:24, 6:25, 7:5, 7:9, 7:23, 12:8, 12:16, 12:19, 14:23, 16:20, 18:17, 18:20, 27:15, 
30: 11, 30: 13, 36:23, 36:24, 38: 14, 50:23, 
58:7 
issues [10J -7:13, 24:22, 25:5, 26:21 26:23, 28:3, 37:2, 38:11, 44:1, 57:24 8:25, 26:24, 27:6, 
27:8, 27:19, 37:15, 
38:20, 47:20, 53:21 
leader r21 -21 :4, 
47:16 leaders [1J -18: leads [1J -51 :25 least[2J-18:14, 47:4 leave [1J -14:19 leaves [4J -42:21 
50:6, 50:7, 52:9 leaving [2J -14:13, 
32:12 led (2J -23:1, 24:18 left [1J -14:1 legal [2J -16:13, 25:6 legality [1J -16: legislative [1J -23:10 less [2J -38:22, 39:22 letter[42J -4:23, 5:1, 
5:9, 7:7, 8:6, 11: 10, 
19:7, 19:8, 19:10, 
20:19, 21:7, 21:13, 
21:17, 21:18, 23:18, 

24:1 24:24, 25:2, 
25:12, 25:14, 25:19, 
25:23, 26:12, 27:3, 
27:9, 27:15, 28:7, 
28:10, 28:12, 29:14, 
36:9, 41:18, 44:10, 
45:22, 46:8, 46:9, 
47:11, 53:14, 53:19, 

60:1 
letters [12J -6:1 6:7, 24:16, 24:18, 33:6, 39:4, 52:14, 57:13, 57:14, 59:3, 59:9, 
59: Library [2J -9:3, 32:22 lieS[1J-13:18 light[1]-53:18 likelyr21 -20:2, 61:15 limited [3J -36:24, 
37:2, 55:7 line [2J -5:22, 10:23 list [1J -55:21 listen [1J -47: listing [1J -33: literally [3J -18:9, 
19:12, 55:8 litigant [4J -4:3, 14:17, 16:17, 22:23 litigants [3J -13:25, 
17:21, 18:2 litigated [2J -23:4, 
26:22 litigation [2J -15:3, 
23:12 
look [5J	16:24, 17:4, 25:10, 34:4, 44:18 looked [1J -41 :18 looks [2J -10:9, 46:9 losing[1J -15:16 
main [1J -23:7 maker [2J -16:20, 
16:22 maliciously[1J -13:14 manage r21 -56:6, 
57:2 managed [1J -41:1 management [5J 
40:5, 40:6, 40:23, 
56:4, 56:25 mandamus [1J -38:3 mandatory [3J -62:3, 
62:25, 63:2 map[1J-9:1 Materials [1J -15:13 materials [4J -7: 17, 
7:19, 32:5, 34:18 matter [3J -42: 18, 
59:8, 64:5 Mcllveney 121 -8:23, 
8:24 
mean [34] -8:6, 12:23, 17:15, 17:16, 29:11, 29:13, 34:17, 34:23, 36:10, 37:10, 43:12, 43:16, 43:19, 44:12, 46:6, 47:23, 48:19, 50:3, 50:22, :21, 
53:21 54:6, 56:5, 
56:15, 56:23, 57:9, 
58:14, 58:16, 58:23, 

59: 11, 60:24, 60:25 means [3J -54:24, 
56:25, 63:21 measuring [1J -46:4 mechanism [20J -7:2, 
8:19, 9:6, 9:18, 10:4, 
10:10, 11:12, 13:21, 
17:24, 25:14, 25:16, 
27:4, 43:1, 43:15, 
48:24, 49:7, 52:5, 
52:16, 52:25 

mechanisms [5J 15:22, 34:5, 37:22, 
44:11, 50:8 meet [1J -62:6 meetings [1J -59:17 memory [4J -19:20, 
20:14, 20:16, 20:20 mention [1J -42:5 mere [1J -19:23 merited [1J -59:2 merits [1J -9:10 

middle [1J -43:3  54:15, 55:11, 55:15,  12:  54:4, 61:2  perhaps [2J -21 :9,  
might (5J 7:15,  56:4, 56: 13, 56:18,  opposed [4J -19:14,  24:23  
20:10, 23:22, 24:12,  56:22, 57:24, 58:4,  40:13, :16, 53:11  permits [1J -17:21  
27:2  58:6, 58: 14, 58:19,