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Defendant.  ------------------------------------------------------  TRANSCRIPT MOTIONS HEARING  
ISAAC ROSENBERG, ESQUIRE,  Office the General Counsel  
219 Cannon Building  Washington, 20515  
For the Defendant: KATHLEEN HARTNETT, ESQUIRE  Dep. Assistant Attorney General  
U.S. DOJ Civil Division  950 Pennsylvania Avenue  
Washington 20530  Barbara DeVico, FOCR, CRR, RMR  (202)354-3118 Room 6509  

 (202)354-3118 Room 6509
DEPUTY CLERK: Your Honor, calling Case
No. 12-CV-1332, Committee Oversight and Government
 Reform, United States House Representatives Eric
 Holder, Jr. Will arguing counsel please approach the
 lecturn, identify yourself and your colleagues for the
 record and the party parties that you represent.
MR. KIRCHER: Good morning, Your Honor. Kerry
 Kircher behalf the committee. I'm joined the
 counsel table colleagues Bill Pittard, Todd
 Tatelman, Mary Bette Walker, Eleni Roumel and Isaac
 Rosenberg. Mr. Rosenberg will argument the motion
 strike, you hear argument that piece.
THE COURT: All right. Thank you. Good
MS. HARTNETT: Good morning, Your Honor.
 Kathleen Hartnett from the Department Justice for the
 defendant. With counsel table also from the
 Department Justice are Eric Womack and Greg Dworkowitz.
THE COURT: Okay. Good morning. All right. noted the beginning the last hearing, we're here
 because the Committee Oversight and Government Reform the U.S. House Representatives has been engaged investigation Operation Fast and Furious since early
 2010. This was law enforcement operation launched
 (202)354-3118 Room 6509
the Bureau Alcohol, Tobacco, and Firearms and the U.S.
Attorney's Office Phoenix, Arizona, October 2009 confront the suspected illegal flow firearms from
 the United States drug cartels Mexico.
The tactics involved that operation, tactics
 which apparently had previously been used the ATF
 Phoenix 2006, have been the subject intense
 criticism. particular, during the course the
 operation, law enforcement officials permitted the guns
 walk. That is, let straw purchasers from the cartels
 carry the firearms across the border without being
 apprehended under the theory that the agents would then
 able track where the guns were ending up. feel the need point out, again, that
 neither this case nor this hearing are about the existence the operation the propriety those tactics. The
 facts have been revealed. The risks and flaws such
 operation, risks that were tragically realized when law
 enforcement officer was killed, have been the subject
 extensive public discussion, and the department has issued
 clear directives prohibiting the use the tactics the
The case also not about whether
 congressional investigation into the operation
 appropriate. The parties are agreed that, course, it's legitimate subject legislative inquiry.
During the early stages the investigation,
 though, February 2011, the Attorney General wrote
 letter the committee denying that gun walking had taken
 place. The letter not the subject this hearing
 either; nor the fact that the letter was wrong. The
 fact that was wrong not dispute. The Attorney
 General subsequently informed Congress that the letter was
 incorrect and the letter was officially withdrawn
 December the same year.
But the committee remains interested
 investigating how why the Department Justice gave
 inaccurate assurances and why they stood uncorrected for
 the time that they did. its investigation was expanded include this second focus, which the committee refers the obstruction portion the investigation.
We're not here this morning discuss whether
 that inquiry was necessary appropriate either. That's
 not being challenged the Attorney General. We're here
 because the committee seeking enforce the subpoena issued October 11, 2011, the Attorney General
 the United States. don't believe that there's any
 disagreement that despite the characterization the
 level effort the timeliness the effort, that
 subpoena has been complied with part.
Also, requests have been narrowed through
negotiation. However, among other records, the subpoena
 sought documents generated after February 2011, which believed would illuminate how was that the
 department came incorrectly deny from February
 2011, that the gun walking had taken place. There were
 many meetings and much correspondence back and forth about
 what needed produced and when. Many documents have
 been produced that relate the creation the letter.
But June 20, 2012, through letter signed
 the Deputy Attorney General Cole, the department declined produce the post-February documents question. The
 letter stated that the President had asserted the
 executive privilege over the documents because their
 disclosure would reveal the agency's deliberative
 processes. committee filed this action declare that
 assertion invalid and enforce the subpoena August
 2012. The complaint was amended January 2013 after the
 new Congress reissued the subpoena.
The Attorney General then moved dismiss the
 case the grounds that the committee had standing
 bring it, the Court had jurisdiction hear it.
 also argued that the Court should exercise its discretion decline hear it.
The Department Justice warned that would
threaten the constitutional balance powers between the
 three branches the Court waded into the merits
 political dispute and undertook assess for itself the
 comparative weight the legislature's stated need for
 the records versus the executive's interest
 confidentiality determine whether the parties had
 engaged sufficient negotiation and accommodation. response the committee took very clear and
 strong position that the case was definitely justiciable
 because involved discreet narrow pure question
 law: Could the Attorney General lawfully withhold
 documents the grounds executive privilege when the
 documents did not involve communications with the
 President the performance his core constitutional
And ultimately, other judges this court
 have found before me, and accordance with both Supreme
 Court and circuit precedent, agreed that deciding such
 legal question, the legitimacy claim executive
 privilege fell squarely within this Court's jurisdiction. United States Nixon the Supreme Court held that when
 the chief executive resists the production specified
 evidence privilege grounds, that traditionally
 justiciable controversy.
The Court said that our system government
actually requires federal courts interpret the
 Constitution and determine whether another branch has
 exceeded the authority that has been committed it.
"Any other conclusion would contrary the
 basic concept separation powers and the checks and
 balances that flow from the scheme tri-party
We're not here today reargue that issue.
 ruled, and there's opinion, explains why this Court has
 jurisdiction mediate this dispute. then directed the
 parties brief the merits what have been assured
 was pristine legal question, and we're now here their
 cross motions for summary judgment. have say found reading the briefs
 somewhat distressing. feel little bit like I'm the
 victim bait and switch because the committee's brief
 was exactly what assured wouldn't be. was
 length vituperative account the facts surrounding the
 operation itself and all the contentious back and forth
 between the parties, who was more reasonable, who was more
 accommodating, which wasn't supposed the issue,
 which had already been laid out full, and urged the
 plaintiff not repeat. gets the discussion the pristine legal issue page 21. The government noted
this disconnect its brief well.
Also, the committee's brief was pitched such accusatory level with such pejorative term seems have been directed more the press than me.
 just want state the outset that we're not press
 conference this morning. made through the avalanche outrage, and can assure the committee that I've
 received loud and clear the message that was meant
 convey, but I'm hoping that the presentation this morning
 will more tightly focused the legal question before
 us. also discovered dismay that the briefs
 were largely based such things OLC opinions, law
 review articles and pure argument rather than binding
 pertinent authority. That's not all the fault the
 lawyering, though, because appears, far can
 tell, that there very little case law help make
 this decision. This was fact, though, that neither side
 seemed quite ready admit and probably means that
 didn't need all the excess pages.
What have address the unique situation when the requester the legislature. particular, legislative committee engaged oversight, and the
 privilege involved that subset the executive
 privilege that involves executive branch deliberations and
not conversations with the President himself. can tell you that after reviewing all the
 materials, have concerns that both the defendants'
 showing harm and the plaintiff's showing need are
 weak. The explanation the need for confidentiality
 asserted the government very generalized, and it's
 weaker this case than much the authority
 provided. But the committee's need may also being
 understated, particularly given how far we've wandered
 from the core subject the committee's inquiry. The
 briefs are really more like ships passing the night
 than two parties wrestling with the single legal question.
The Attorney General relies heavily cases and opinions that relate specifically communications
 with the President himself. cites other documents which former executive official asserted the
 privilege authority for the existence the privilege.
Meanwhile, the committee acts this
 ordinary evidentiary privilege being asserted any old
 witness opposed the President the United
 States. both the situation that one side briefed and
 the situation that the other side briefed are
 distinguishable from the situation actually have.
The Attorney General says should uphold his
 assertion the privilege without looking behind the
assertion the records themselves, and the committee
says should accept their claim entitlement without
 closer examination the need for the records and the
 basis for rejecting the privilege. I'm not confident that
 either side right about that. think the cases
 clearly indicate that under these circumstances have beyond "because told you so." Even cases
 involving presidential communications, which are clearly
 privileged, Courts have reviewed the documents and engaged individualized determination.
Since the parties have filed cross motions, I'm
 going hear from one side and then the other without
 giving the moving side the last word we'll here all
 day. After we've talked about the motion strike, I'm
 going hear from each side briefly --after talked
 about the motion for summary judgment, I'm going hear
 from each side briefly the motion strike.
And I'd like hear from counsel for the
 committee first.
MR. KIRCHER: Thank you, Your Honor.
Let assure you the outset that the briefs submitted this Court were not intended press
 releases. They were intended serious legal
 documents address the legal issues that are presented this case. And you perceive them otherwise,
apologize behalf the committee. the Court aware, June 20, 2011, the
 Deputy Attorney General letter the committee
 stated that, quote/unquote, the President has asserted
 executive privilege over the relevant post-February
 2011, documents. you yourself just noted, Your Honor, the
 same letter, the Deputy Attorney General acknowledged "The
 committee's legitimate interest the department's
 management its response congressional inquiries into
 Fast and Furious." And that acknowledgment echoed
 June 2007 Attorney General opinion which cited both
 parties' briefs which states that "The department has
 recognized that Congress has interest investigating the
 extent which the department officials may have provided
 inaccurate incomplete information Congress." the one hand what have here have
 the department acknowledging the legitimacy --the
 Article legitimacy what the committee was doing here,
 which trying find out about the committee's --I'm
 sorry, the department's response the committee's
 underlying Fast and Furious investigation. the other hand, have the Attorney General
 doing everything can prevent the committee from
 doing exactly that; from initially December through the
assertion the privilege refusing produce documents
 dated created after February the assertion the
 privilege January itself.
THE COURT: the letter, believe, the
MR. KIRCHER: The privilege letter.
THE COURT: --the privilege letter --actually think it's the letter the President asking about
 the privilege, the day before, there's statement that
 even some post-February documents have been produced
 they relate the facts coming light that the
 February letter was false. that correct?
MR. KIRCHER: I'm not aware that that's correct,
 Your Honor. may that there are handful, two
 three four documents, post February that received,
 that the committee received during that time period prior the assertion the privilege. they were, they
 were minimis number.
THE COURT: All right. Well, let get the
 core what think the issue is. Your entire brief
 seems premised upon the argument that what well
 known the law the, quote/unquote, executive
 privilege. It's coextensive with that aspect the
 privilege, according presidential communications. And
 the deliberative materials fall completely outside its
And don't really see that the case law you
 provided. Are you relying any particular case for what
 appears your fundamental contention, which that
 the executive privilege means communications the
 President only and not the executive branch?
MR. KIRCHER: That's not our position, Your
 Honor. Our position that executive privilege
 umbrella notion. encompasses number different
 privileges that are asserted the executive branch.
 From state secrets and military secrets Presidential
 communications deliberative process, think there's recognition some quarters common-law law
 enforcement provision. All those are types
 executive privilege.
And what have asserted this brief when
 the Attorney General --or when the Deputy Attorney
 General asserted the privilege, executive privilege
 June 2012, that letter larded with references
 deliberative process.
Under the law that set forth the Espy
 case, the D.C. Circuit very carefully distinguished
 between the deliberative process aspect executive
 privilege and the presidential communications aspect
 privilege. when went into this lawsuit, our working
 assumption, not unreasonable assumption, was it's one
the other both those.
MR. KIRCHER: And that's why you got counter
 complaint from us.
THE COURT: But your position that just
 because we're talking about confidential deliberative
 material here that there are constitutional
 separation powers implications? realize that
 might down different track for how the interests are
 weighed and what the agency has prove, but don't the
 cases suggest --they don't really get the point that
 you got to, which saying, you know, don't even
 really need think about the Constitution separation powers here. It's just privilege being asserted
 witness and we, Congress, don't recognize privileges.
MR. KIRCHER: I'm not saying that don't
 recognize it, Your Honor. The D.C. Circuit circuit has
 not recognized deliberative process constitutional
 privilege. are
THE COURT: Well, says they are
 constitutional implications lot footnotes, and
 doesn't reach the question that quotes some Law Review
 articles say there is, some Law Review articles say there
 aren't. But you have the President the United
 States telling congressional committee asserting
privilege over these documents, are you really saying that
that just has separation powers constitutional
 implications all?
MR. KIRCHER: I'm saying, Your Honor, that first all, you have decide whether there privilege
 that applies here. And there are two possibilities.
THE COURT: That --that --I'm just talking
 about --let's --we're going get whether these
 documents are deliberative and whether the assertion has
 been properly asserted.
But question neither Espy nor any the
 other cases read seem indicate that only the
 communications privilege raises constitutional concerns.
 And even they are more deluded one situation than
 the other, there any specific case law that you're
 pointing that says that there's nothing
 constitutional about the deliberative process aspect
 the executive privilege?
MR. KIRCHER: do, fact, think that what
 Espy stands for, Your Honor. With all due respect,
 think that's what Espy stands for.
THE COURT: Can you direct particular
 page Espy that you think says that?
MR. KIRCHER: The entire beginning section that
 discusses the background the executive privilege goes
through constitutional piece that, which the
presidential communications piece, and distinguishes that
 very clearly from the common-law piece, which the
 deliberative process piece.
THE COURT: Well, there's sentence Espy
 where the Court says, "Although the deliberative process
 privilege most commonly encountered FOIA litigation, originated common-law privilege." But isn't that
 point that sentence distinguish the fact that before ever got embodied FOIA, was creature case
 law and not rule out constitutional implications?
MR. KIRCHER: don't read that way, Your
 Honor. The entire discussion separate out the
 presidential communications piece that case from the
 deliberative process. The whole point that case was
 whether the documents sought fell within the scope the
 former the latter. And the discussion, think, leads
 inevitably the conclusion that the D.C. Circuit
 concluded that the deliberative process common-law
 privilege. That privilege certainly that can
 asserted the executive branch many instances, but
 it's not constitutionally based like the presidential
 communications, which routed considerations that are
 peculiar the office the President.
THE COURT: Well, don't think they ruled
out completely. think they clearly indicated that the
constitutional implications are strong. think you're
 somewhat overstating the implications the distinction
 they drew Espy.
But one your arguments that this
 common-law privilege, Congress doesn't recognize
 common-law privileges, don't have to, you made the
 decision enforce the subpoena court law where
 the privilege unquestionably recognized. why
 bound your internal house rules instead legal
 precedent, whether it's rooted common law somewhere
MR. KIRCHER: You're not bound internal house
 rules, Your Honor. What have said was they asserted
 privilege against us, and came the Court find out
 whether that privilege could, fact, asserted against congressional subpoena.
They have --they have walked out that
 argument. They longer assert that the common-law
 deliberative process privilege --they have abandoned
 that argument. They say they might resurrect some
 later point this litigation, but they have not defended that ground. What --the ground which they have
 defended want you, the Court --and they acknowledge
 that there case law that accepts the justification
for constitutionally based congressional response
 related media's inquiries privilege. There case law
 that supports that constitutionally rooted privilege
 that nature. They admit that.
But what
THE COURT: don't think anybody has got case point. We're all dealing with another world between
 the cases that you provided and the cases --it's not FOIA
 either. We're somewhere else.
MR. KIRCHER: --I respectfully disagree, Your
 Honor. think where are they want you invent
 something new. The Supreme Court and the D.C. Circuit
 says we're not getting into the business inventing new
 privileges without either compelling empirical showing some clear and convincing showing. They can hardly
 make empirical showing need for new
 congressional response related media inquiries
 privilege when --when Congress has ventured into this
 area three four times most over the last years.
 And actually start going through their rationales
THE COURT: Well, think you are --I think
 they are trying put this squarely within the
 deliberative process privilege was defined Espy. don't think they are asking create new
And realize that your argument the
documents aren't privileged all and this isn't
 privilege that Congress needs recognize. But
 disagree with you about that and say the privilege
 exists, would you agree then that what I'd have
 then balance that privilege, which may not have strong
 constitutional underpinning against your need for
 the records, that have there?
MR. KIRCHER: Yes, believe you do. It's
 qualified privilege. Deliberative process itself
 qualified. This new thing that they are asking you
 invent, least our conception the world, also
 qualified privilege. They've admitted that. Qualified
 means could overcome. don't see how you avoid
 the question our need, assessing our need for the
THE COURT: Well, assess your need for the
 documents, they've told lot about your need for the
 documents, and wading right into the speech debate
 clause ask you more specific about your need
 for the documents?
MR. KIRCHER: don't think so. I'm here
 answer your questions, Your Honor.
THE COURT: All right. Well, one the things
 that Espy said that the deliberative process privilege, you say, qualified. can overcome, but
 doesn't give any kind clear standard apply the
 select committee case does the communications
 situation. says the determination supposed
 made flexibly, hoc. "Each time the privilege
 asserted, the District Court must undertake fresh
 balancing," and then lists number factors that I'm
 supposed consider.
Now, the last time around when talked about
 the ATT case, one the factors that looked
 determining whether this case was justiciable not was
 whether not there were clear standards apply. And
 now they are telling me, okay, flexible, hoc,
 basically make your own test, Judge. does the fact that the standards are
 elastic mean that were wrong the first place about
 whether the case justiciable not?
MR. KIRCHER: certainly don't think so.
 course, cannot answer for what the Court said about this
 flexibility. think the balancing has conducted
 anew each time, just virtue the nature that there
 are new cases. But think the standards are fairly
 clear. mean, you have --in the presidential
communications area, the standard demonstrably specific
need; right? Nixon says that. Espy says that. Judicial
 Watch says that. That --that appears the standard, least for the presidential communications privilege. least some sort hierarchical sense going here.
THE COURT: Right. has critical the
 committee's function.
MR. KIRCHER: Well, Senate Select uses that
 critical language. And you view that one the
 same, then agree. you view --I think the --I think
 the department argues that demonstrably critical some
 sort higher standard than demonstrated specific need. don't. But you viewed higher
 standard, then our argument that Senate Select doesn't
 apply here because, No. it's the presidential
 communications context. was pre-Nixon. You know, Espy
 went the other way. seems sort the starting point
 here the presidential communications standard, which demonstrably specific language. obviously think
 can satisfy that, and we've told you some length why
 think can satisfy that.
THE COURT: Well, not --I don't understand
 why critical the committee's function for you
 oversee not only executive decision-making but how the
executive responds congressional inquiries about
 executive decision-making. And even more so, how talks the media. How does that your core ability
 function legislative committee what they are saying the press?
MR. KIRCHER: What they are saying the press?
THE COURT: They are talking about --one the
 things they are saying privileged, and know you're
 saying isn't. But let's say think is. how
 we're going respond media inquiries, and there are
 presumably communications back and forth, but what about
 this? Let's try this. like this scenario. don't
 like this scenario. This what think could happen this. This what think could happen
 that. And ultimately whatever they say the press
 public. And you have that. And you can say was
 truth. was half truth. was lie. You have all
MR. KIRCHER: Uh-huh.
THE COURT: How the internal discussion about
 what they are going critical the committee's
 ability perform its constitutional function?
MR. KIRCHER: Well, again, just clear, not accept that the Senate Select
THE COURT: know that.
THE COURT: But you said you can meet it.
 want know how.
MR. KIRCHER: All right. What have here,
 Your Honor, here specific --we're talking about
 the specific context this case. All right? We've
 got --let back up.
The larger framework is, and I've tried
 explain our brief, Congress percent the time not interested how they respond Congress's
 inquiries. Congress wants know about operations and
 programs: Are they working? Are they being managed
 right? Are they being mismanaged? the money being
 spent well? need spend more money? That's what
 Congress principally interested in. But
THE COURT: Don't have least three
 investigations going right now where the house's focus how the executive responded Congress's inquiries? mean, that
MR. KIRCHER: Specifically? don't believe so.
THE COURT: Well, seems like the Benghazi one
 talks about that. The IRS one talks about that. seems
 like say that that's something that's going
 outweigh privilege claim, where does that end?
MR. KIRCHER: Well, the Benghazi committee was
just created couple days ago, don't think can
comment that. don't think that's where the IRS
 investigation has focused. There certainly issue
 with respect one particular witness has made the news.
 But don't think it's fair say that the committee's
 underlying focus how the IRS responded its
 inquiries what was going those parts the
 Internal Revenue Service.
This one quite different because you
 yourself pointed out, Your Honor, got, got --we got
 false information February got more false
 information May July the acting director
 the ATF told that internally the department trying push the --push the underlying investigation away from
 political appointees; right? Then get virtually
 information prior the issuance the Holder subpoena.
 Then get virtually information after the issuance
 the Holder subpoena. top that later have the
 inspector general telling that found, you know,
 inaccuracies and had serious questions about the way the
 May letter particular was drafted. takes ten months before the original false
 statement --is withdrawn. Now, that particular
 context the point I'm trying make here, Your Honor, can't investigate --if the committees Congress
can't after that kind stuff and find out about
deception --certainly allegations deception, false
 information, foot dragging, obstruction, can't look
 into that, can't find out how the executive branch
 delivers information that's relevant the underlying
 investigation, then can never effectively the
 underlying part the piece. can't the operations
 component Fast and Furious can't also the
 obstruction component when it's necessary that. have way check whether we're getting
 full and complete information the programs and the
 operations part what need do, which the most
 critical part what need do. Nobody wants
 doing what the committee having here. But the
 committee can't turn away the face information
 that --that's the nature what we've put our
 papers for you. just can't responsibly that.
THE COURT: one the things that concerns that balancing the kinds things you're asking balance, seems me, first all, you're
 specifically opening the substance and the legitimacy
 and the goals and the techniques the investigation -of your investigation scrutiny, and you're
 complaining about the timeliness and the quality their
 subpoena responses, the reasonableness their
negotiation positions. And aren't you drawing straight
into the intrabranch dispute that everybody told
 wasn't going have get into?
MR. KIRCHER: Well, your Honor, all fairness don't think ever told you that you might not have
 get into balancing --I think what told you was
 don't think the privilege they asserted should
 recognized all. And you agree with us, then you
 certainly don't have get into that. don't think ever said you disagree with
 that, you don't have the balancing piece.
 That --that --it's certainly not our
 complaint. I've gone back look the transcript.
 don't think ever made that kind representation
 the Court, that you disagreed with that the
 privilege itself should not recognized, that you
 wouldn't also --that we're just going home and say
 Well, thanks, don't need the documentation.
MR. KIRCHER: still need the documents.
THE COURT: But even your arguments about why
 the privilege should shouldn't recognized turn much
 more because we're investigating misconduct, because
 they dragged their feet, because they were --that's they
 were --that the privilege doesn't. the legal
question, before ever even get the balancing, you've
imported all that stuff into your --your first argument
 for why should reject the privilege because you are
 looking into misconduct. And part the misconduct that
 you're pointing the fact that they are withholding
 the documents that you're asking for.
MR. KIRCHER: Yeah. And don't think there's
 huge amount dispute that. don't think there's
 huge amount dispute what was going the
 department here. They have not really
THE COURT: It's hard read these briefs
 without feeling there's huge amount dispute about
 just about everything.
MR. KIRCHER: Well, don't think there's been
 any dispute about the February letter. don't think
 there's dispute about the February letter. don't
 think there's dispute about the Ken Melson
THE COURT: There's dispute --well,
 Mr. Melson's transcript that you gave was full his
 opinion, view, characterization, thought,
 views. don't know how much weight give that.
MR. KIRCHER: was acting director the
 Bureau Alcohol, Tobacco and Firearms.
THE COURT: Right. And giving you
MR. KIRCHER: was high ranking official.
THE COURT: --about what they are doing over
 DOJ. Putting that aside, don't put much weight
 that you do.
THE COURT: Plus you said there was question
 about the February letter, but you call lie
 throughout your --a lie, lie, lie, lie. They lied.
 They compounded the lie. When think the fact that
 whether was intentional falsehood the question. assuming the answer the question, then
 saying we're talking about misconduct, there's
 something circular your argument.
MR. KIRCHER: don't --I don't think we've
 reached --I don't think there's been any conclusion
 whether the inaccurate information the lie was
 intentional not. was false.
THE COURT: That's what lie is.
MR. KIRCHER: Well, actually checked the
 dictionary definition, Your Honor, and lie could
THE COURT: Come on.
MR. KIRCHER: Anyway, don't want quibble
 with you about that. But certainly, yes, intention
Something went wrong here. The wheels fell off
the bus the department's response the committee's
 underlying investigation one degree another here.
 And seems --and the Attorney General has
 acknowledged, you said the beginning your opening
 statement, has acknowledged the legitimacy the
 committee's investigation into that response process.
THE COURT: All right. Well, let ask you
 what think actually perfectly legal question.
THE COURT: Putting aside the question
 whether the deliberative process privilege can invoked
 before Congress, your view are there any differences
 between the elements and the definition the privilege
 under FOIA and the deliberative process privilege that
 arose matter common law under the auspices the
 executive privilege? Are talking about the same
 animal? think are, because everybody citing FOIA
 cases me, but just want make sure. has
 predecisional and has distributive.
MR. KIRCHER: Yes. think the exemption
 FOIA many cases, was intended import the
 deliberative process. So, yes, think it's the same
 deliberative process privilege, whether arises the
 ordinary context outside FOIA it's asserted -as privilege response FOIA request. One the
differences may that I'm not sure that balancing
 necessarily takes place the FOIA context.
THE COURT: Right. I'm just asking about the
 definition the privilege, not what happens after you
 find out that it's privileged.
Well, you lay out the limits the privilege,
 but what's your authority for the proposition that the
 decision that's being deliberated about has
 formal --a policy decision, sort operations, "this what we're going today" decision opposed
 any decision about how proceed some manner that the
 agency has make decision about? Why respond -how should respond Congress, how should respond the media, not decision that they are allowed
 shield their deliberations about? general, putting aside the question
 whether the misconduct that then outweighs it. What
 you're saying not even privilege the first place.
MR. KIRCHER: Right. you're going accept
 that there privilege here, then yes, think we're
 the decision --you know, it's predecisional and
 deliberative realm. mean, all the case law the
 deliberative process area has those two basic elements
 it. Now, may well that, again, you're going
 accept the fact that --the argument that there's
privilege here, that some these things that they did
 may predecisional and deliberative. I'm not --I'm not
 disputing that possibility. course
THE COURT: you're not saying, then, that the
 decision the documents have precede can only
 formal policy decision? Are you --I'm not sure what your
 answer question just was, but
MR. KIRCHER: Well, it's hard for talk
 about specific documents categories documents, Your
 Honor, given know nothing this date, two and half
 years after the subpoena was issued, still have nothing
 about what they have withheld.
THE COURT: have questions for them.
MR. KIRCHER: Okay. I'm sure you do.
THE COURT: All right. we're going get
But question you is, your position
 that they are literally deciding internally about what
 should say Congress, who should testify, what should say, what should say the press, what's the press
 release going say, who are going put
 talk about this, are those decisions which
 deliberation --about which deliberations could
MR. KIRCHER: Well, certainly --I'm sorry.
Certainly don't think that every single decision merits
 protection under the deliberative process protection.
 don't think that's where the case going. think they
 have policy-oriented kinds decisions. think
 that's what the case law says. So, yeah, we're going
 shaft the committee today, yeah, don't think that really
 qualifies policy decision, that's --if that's
 what you're asking me.
THE COURT: Well, I'm asking you where --where
 does this concept that has policy decision come
 from opposed decision about which people
 deliberate internally?
MR. KIRCHER: Well, think it's set forth --I
 cannot give you case right off the top head, Your
 Honor. did cite number cases our opening brief
 when thought were dealing with the common-law
 privilege. gave number cases our briefs which
 talk about the predecisional and deliberative pieces
 that, and would rely the cases that cited that
 part our brief.
THE COURT: All right. guess what concerns just the climate we're where the parties are
 polarized, and this may continue for some time, that -how respond the other side's inquiries and me,
 inquiries --something that there's going lot
internal discussion about. And the administration --the
administration saying want people candid.
 want people honest. want people frank.
 want them spit out all the various scenarios. And
 everything --if all you're talking about how
 respond Congress. that's just not covered the
 deliberative process all, could that chill people's
 candor saying, look, think you should say this,
 think you should say that, they think all it's going end Capitol Hill? mean, there some legitimacy their
 argument that some this might actually covered?
MR. KIRCHER: Maybe smidgen, Your Honor, but
 not much beyond that.
THE COURT: Smidgen.
MR. KIRCHER: Yeah, smidgen. And the reason this: told you before, Congress not
 principally interested doing what it's having
 here. It's principally interested getting the stuff
 needs get about operations and programs. the
 scenario that they are painting presupposes underlying
 investigation. get the stuff, the committees and
 the Congress get the stuff that they want and that they
 need, they have absolutely reason back and ask
 about how you did this. There
THE COURT: Well, whether you get what you need
can subjective
MR. KIRCHER: Granted. But I've also talked
 length earlier opinion about the structural
 limitations Congress's ability --it cannot
 everything. It's got two-year election cycle. It's
 responsible the voters. It's got limited resources.
 It's got limited staff.
The notion that somehow are going turn
 around every single time underlying investigation
 and then back and subpoena the department some other
 aspect the executive branch produce their
 information, you know, the records that relate their
 response laughable. It's laughable.
THE COURT: One the things you said
 they can't possibly assert this privilege omnibus
 basis. Everything from February forward. let's say agree with you about that. They can't. But you then
 said your complaint I'm supposed declare that they
 can't that and order them produce them all.
 can't declare them privileged omnibus basis, how can declare them not privileged and producible
 blanket basis? Doesn't there have be, before you can
 get what you want, even they are wrong, some sort
MR. KIRCHER: Well, the ordinary case, the
answer that would yes. don't think here since
 they haven't come forward with any justification their
 side the scale other than very, very generalized
 confidentiality type claim. That's it. That's all
 they've got. That's all that they have come forward.
We've been this for more than year and
 half now, going two years. And that's all that they
 have come forward. have laid out considerable
 detail why think the stuff important, why are
 asking for it, why --the things that could
 had, the possibility, the legislative possibilities, the
 impeachment possibility there was senate-confirmed
 individual who was directing the obstruction here. You
 know, have been very upfront, very clear about that,
 and you've got that now. the other side that, all you've got from
 them very, very, very generalized don't want
 turn this stuff over and might chill us. And that's
 it. And think under those circumstances you don't have get into privilege logs and elaborate descriptions and
 in-camera reviews and all that other stuff that sometimes
 flows this area. don't think that you have get
 into that here given what you have before you the
 briefs they are today.
THE COURT: Well, you seem have acknowledged couple questions ago that, yes, somewhere the pile
 there could things that legitimately fall under the
 deliberative process privilege. before order them,
 contrary the assertion privilege made the
 President the United States give you every single
 piece paper, don't have some obligation give them chance say Okay, well, we're withholding this for
 this reason, we're withholding that for that reason, and hear from you because it's hoc elastic flexible
 balancing test why, with respect these documents opposed the group whole, which you've already
 told you don't even know what they are, why you're
 entitled them.
MR. KIRCHER: Yes, but they do, Your Honor, and
 they've known since October 2011 when issued the
 subpoena and are now May 2014, and they still
 have yet say --to point any specific documents that
 raise the kinds questions that you're raising. Not
 single document have they focused any specific way.
 They've got the documents, and they've had them all
 this time and they have yet say word about those.
MR. KIRCHER: think it's too late. Let
 just --because can add one more piece the
THE COURT: That's it? That's why can't
 back them and say you need give something more
 particularized just because they've lost their chance?
MR. KIRCHER: That's why you should not back
 and let them
THE COURT: All right.
MR. KIRCHER: --have another chance. I'm not
 telling you what you can and you cannot do.
MR. KIRCHER: That's why you should not that.
THE COURT: the Miers case there was some
 issue about whether the Court could actually order the
 government produce Vaughn index. And Judge Bates
 said that even the plaintiffs had conceded there that
 there was law statute that authorized the Court that. Can that? Can tell them need index
MR. KIRCHER: Yes, course, you can. mean,
 Miers did that. mean, didn't call privileged
THE COURT: Right. couldn't figure out the
MR. KIRCHER: But was for all intents and
 privilege privileged log. That's what Miers did.
Let just back for one question just get
this off the table before disappears. this
 presidential assertion point, factually they have not
 established that the President actually asserted the
THE COURT: But you have the letter from the
 Department Justice the President saying
 Mr. President, would you authorize assert executive
 privilege? This why think should asserted.
And then you have letter from Mr. Cole, which
 I'm pretty sure says the President the United States
 asserting the privilege. not supposed take that face value from the Deputy Attorney General the
 United States?
MR. KIRCHER: No, you're not, Your Honor.
 Certainly context cross motions for summary judgment.
 They have the responsibility --that the predicate their entire argument, that the President the United
 States made this assertion personally. That's predicate their entire argument. It's not factually established.
The only things upon which they rely, you
 read their brief, the only things upon they relied
 establish that point they cite our amended
 complaint, the introduction our amended complaint where recite what the privilege letter says. The President's
 assertion, refer that. Right? They deny that
their answer. They deny --they deny the introductory
 paragraphs our complaint their answer. that
 hardly establishes that the President asserted matter fact.
Then they refer Exhibit the Caster
 declaration, which the privilege letter. Caster
 obviously could not testify --Caster committee
 staffer. Obviously had ability say whether the
 President asserted not. All was doing was saying
 this true and correct copy the letter that
 received about June 20. was nothing the
 Caster declaration that establishes that matter
THE COURT: Well, any case where there's
 privilege assertion, when the lawyer says client
 asserts this privilege, have bring the client swear
MR. KIRCHER: No. think they need
 the very least what was done Espy where the White House
 counsel filed affidavit say the President authorized assert privilege. There was
THE COURT: But those were White House
 documents. These are Department Justice documents.
 why can't Mr. Cole, who the Deputy Attorney General
 the United States overseeing the Department Justice,
whose documents you're asking for, say the President
 authorized assert this privilege?
MR. KIRCHER: Mr. Cole has not said that. There affidavit establishing factual matter
THE COURT: has swear the letter?
MR. KIRCHER: Yes. summary judgment
 matter, yes, course. Yes. They've got put
 facts. And that material fact upon which their
 entire argument rests, Your Honor. This was issue
 Espy. was also issue Judicial Watch, and it's
 issue here.
THE COURT: Well, let's say conclude that
 you're wrong about the general concept and the Attorney
 Genera general may, matter general principle,
 lawfully assert executive privilege over deliberative
 documents when dealing --when responding
 congressional subpoena. I'm not going issue
 declaratory judgment that says can't, and I'm not going order him turn over them all since some them may subject that privilege.
But also agree with you that can't wholesale basis without demonstrating that the
 particular documents withheld satisfy the particular legal
 requirements for the existence the privilege, and that agree with you that the privilege qualified.
can't enter judgment for the defendant and rule that
 doesn't have turn over anything because, even they
 are privileged, the privilege might outweighed your
 need. that's how feel, that you're both right
 and you're both wrong, what do? deny your
 motion for summary judgment and deny their motion for
 summary judgment, and just keep going and then enter
 some order requiring them particularize? enter
 judgment your --what's ruling that's how think
 this situation falls?
MR. KIRCHER: that's where you're going, Your
 Honor, think your ruling pretty much you enter
 order that says I've --you know, I've reviewed the
 motions and this finding about the existence the
 privilege, and therefore, there are further proceedings -and you where Judge Bates went Miers, which give privilege log but don't call privilege log and
 we'll start going document document.
THE COURT: And your motion essentially
 denied and their cross motion denied?
MR. KIRCHER: Well, for all intents and
THE COURT: All right. Now, I'm sure came surprise you that took you off your outline about
two minutes and asked you lot questions, but you
 also know that I'm going give you the chance,
 there's something that you feel haven't divined from
 your briefs and from this morning's argument that you
 wanted say, you should say it.
MR. KIRCHER: Well, let make clear that what
 the committee's position before stand before the
 Court today that this common-law deliberative
 process claim, and that's all is. That's all was
 asserted that June privilege letter. They have
 abandoned that and we're entitled judgment.
This new thing that they have brought 20, months too late. It's out time, and you should not
 even consider that basis alone, that was not
THE COURT: Okay. Can you explain why you
 keep telling that they've abandoned their deliberative
 process claim? I'm not sure understand that
MR. KIRCHER: The common-law part that.
 Because that's what they say. They say we're not
 defending it. They say this not about that; this
 about this other thing. But there's every reason --to
 construe that light Espy, there's every reason
 construe that
THE COURT: Well, all they are saying it's
 not common law the way you're describing it. They are
 saying it's under the umbrella executive privilege.
 It's not something else. It's form executive
They haven't abandoned the claim that this
 covered something called the deliberative process
 privilege under the umbrella the President the
 executive privilege that grew matter common law
 with some constitutional underpinnings possibly.
MR. KIRCHER: Which they have not identified.
THE COURT: That question has been left open,
 never been decided. And was ultimately embodied the
 FOIA statute which doesn't apply here. mean, aren't
 all talking about the same thing, just trying
 characterize differently?
MR. KIRCHER: Well, when say "abandoned,"
 mean briefed that --we briefed that issue
 because that's what understood they were claiming, and
 then didn't respond it. And they went off
 different direction. That seems fairly
 characterized under abandonment under the case law this
 circuit, and ought entitled judgment that.
And then this other thing that they've sort
 come with --I mean, remember how this thing has
proceeded, Your Honor, June after the privilege
letter was issued, wrote letter. The committee wrote letter the White House ask for clarification
 the privilege assertion. That letter the --is
 attachment the complaint. And explained the way
 understand the law, the way the committee understands the
 law the District Columbia be, that you've got the
 presidential communication's privilege over here and
 you've got the deliberative process common-law privilege
 over here. There was response that.
THE COURT: All right. Well, you're the one
 that keeps saying one over here and one over here.
 All the cases say they both are part the executive
 privilege, and that's the only thing that hear the two you saying that's different. And think the law
 clearly supports that they are both forms executive
 privilege. have, this case your request, asked
 them tell are talking about presidential
 communications. you're absolutely right. That more
 constitutionally based, more serious, higher standard
 needed breach privilege, form the executive
 privilege. It's not involved this case. There's
 dispute about that.
THE COURT: But nobody has stopped saying that
the deliberative process privilege involved this
 case. We're still talking about what we've been talking
 about since they wrote the letter, far could tell.
MR. KIRCHER: Well, disagree obviously.
THE COURT: All right. All right. Okay.
 that's what you mean abandoned.
What else you want tell that you didn't
 get tell me?
MR. KIRCHER: Well, let check notes real
THE COURT: Please do. Take your time.
MR. KIRCHER: could just briefly through
 the rationales that they have advanced justify this
 connection the Constitution here. talked about the
 presidential assertion piece it, which obviously the
 President himself doesn't get turn something into
 constitutional privilege just asserting it.
Then they say that their response
 congressional subpoena itself inherently
 constitutional, which obviously not. The fact that
 Congress has Article authority seek the kind
 information that's sought here doesn't convert their
 response into something that constitutionally
The adversary relationship notion, that somehow
because there was, you know, there was some political
 friction this and some sparks flying this case,
 there sometimes are but frequently are not, that somehow
 that makes this constitutionally based privilege.
I've talked about their generic confidentiality
 concerns and how those are misplaced. They talk about the
 distorting the negotiations process. concern with
 that rationale once --if they have this privilege,
 they will assert and will back --we'll actually
 have the opposite impact, which the recognition the
 privilege will distort the negotiations process. they
 have the privilege, will get asserted, and will not
 get things and will have come back here. That -that is, fact, what will the consequence the
 recognition here.
And their last justification has with
 general separation powers concerns, about the Court
 putting its finger one side the scale the other.
 The reality the Court --whatever the Court does here
 it's going put --it's going to, you know --it's going unbalance things little bit. light the
 fundamental and critical nature Congress's Article
 responsibility oversight and how critical that
 the very foundation our government, you're going
put your finger one side the scale, you ought put our side the scale and find that this privilege
doesn't exist.
Thank you, Your Honor.
THE COURT: All right. Thank you.
Let hear from the Department Justice.
MS. HARTNETT: Good morning, Your Honor.
 agree the proper question before the Court today the
 scope the constitutionally based executive privilege;
 and Your Honor has identified, the documents here that
 are issue are ones that were developed the course
 the department's deliberative process regarding its
 response congressional oversight, specifically the
 operation Fast and Furious and related media inquiries. just did want make clear that not all the
 documents --and we've tried that both our brief
 and our declaration that describes the documents
 category --that not every document itself
 deliberative, but they all are collectively part the
 department's deliberative process response
THE COURT: How can you possibly assert
 privilege over documents that you just told aren't
 deliberative, that one the two elements the
MS. HARTNETT: That's good question, Your
Honor, and would like explain that. The way that the
 department has understood this aspect the
 constitutionally based executive privilege was --is that covers the --essentially the department's work file matter when it's responding Congress. It's somewhat
 akin the Attorney Genera work product privilege where basically have the work file. It's not physically one
 file for the entire department, but each person that
 working the oversight investigation course has
 deliberative materials the type that you're describing.
THE COURT: What the case law that creates
 constitutionally based work file privilege that covers
 every single piece paper the work file
THE COURT: --whether it's deliberative not?
MS. HARTNETT: Your Honor, there case law
 supporting the --directly recognizing this work product
 privilege the context congressional investigation the executive branch because there are few cases
 about the Congress and the executive branch having
 dispute over documents. The cases that exist largely
 concern presidential communications, and Your Honor
 pointed out, there more robust case law generally
about the deliberative process from which this privilege
THE COURT: Well, neither the presidential
 communications privilege the deliberative process
 privilege has entire work file --is there any case
 anywhere that talks about that, even the presidential
 communications cases, the Espy, they said all right, now,
 yes, you have turn them over, but you have turn them
 over the court. You have give
 individualized explanation. don't know what you're talking about.
MS. HARTNETT: Your Honor, this something
 that's come more often recently where Congress has been
 seeking not only the underlying material about the vision
 but actually the work file the materials about how
 respond Congress. And this something that, Your
 Honor, correctly identified not just happening this
 case but actually becoming more routinely requested. would just make the point that this just
 not issue that was really teed for the courts the
 past. was not the subject extensive inquiry. There
 were two past executive privileges assertions that were
 based similar theory Congress response work
 product, and that was the administrations both parties,
 1996. There was assertion over some congressional
response work product under --and then following that
 there was assertion 2007 that was the subject
 part the Myers case with the U.S. Attorney Generas
And the theory there was that even addition the deliberative process and more well established
 the case law type privilege that was necessary
 protect the work file because that's the sphere
 confidentiality that lets each side meet each other
 equals the oversight process.
THE COURT: But there's Attorney Genera work
 product legal common law concept that I'm aware of,
 deliberative process under FOIA that I'm aware that
 says that made into the file, but itself
 contains deliberation, that it's covered. Where could
 that theory possibly come from?
That's like saying everything Attorney
 Genera's files covered the attorney-client privilege Attorney Genera work product, even has
 communications and thoughts impressions it. Court would accept that.
MS. HARTNETT: Your Honor, don't think we're
 going that broad. think the point that it's material
 protected --Attorney Genera work product would
 material prepared the direction Attorney Genera
anticipation litigation. And the extent that
 that can include factual material mental impressions
 that are not themselves deliberative the sense
 leading decision but that are within the scope
 preparing case for trial anticipated case for
 trial, and that's the analogy that the executive branch
 has drawn its public explanation asserting this
 privilege twice before, and this case. And believe
 that's important, separate but related component the
 deliberative process, particularly here where you have the
 two branches. It's not general work file privilege for
 any matter that the department might working on.
It's the work file when are actually meeting
 the Congress the context Congress seeking
 information from and trying preserve sphere
 allowing that investigation, regardless whether it's
 about particular deliberation leading particular
 decision, but the broader --the broader scope our
 confidential deliberations allowing meet the other
 branch equal.
And what --even some the information under
 that privilege, again, would be, example, meeting times
 how --who part the team working responding
 guess, all that type detail. Were that regularly
 available Congress investigation essentially investigation into the investigation, that would chill
 the ability the executive branch to, you know, with
 openness and candor discuss amongst itself how respond
 and would always this specter having your work
 file the matter that's being investigated actually
 itself subject congressional oversight. the past, that's been able resolved
 either because the material was not sought would
 able accommodate and negotiate with the branch and
 focus the inquiry where should be, the underlying
 oversight matter. And submit that supported
 these past assertions privilege, the same theory that
 applies both deliberative process does make sense
 recognize the work product privilege this limited
 context engaging with Congress oversight.
THE COURT: All right. Well, understood your
 brief saying we're asserting the deliberative
 process privilege, and under Espy, not just the FOIA
 casings, the deliberative process form the executive
 privilege has elements. One element that the document predecisional, and the second that
Are you saying that's not the test? You can -there's more that gets swept under this privilege than
 things that meet those two fundamental elements the
privilege that being asserted based that case that
 you cited me? We're not using that test anymore?
MS. HARTNETT: That test, that the
 appropriate test for deliberative process.
THE COURT: Okay. are you telling that
 everything that you've withheld from February forward
 both predecisional and deliberative? You've already told some isn't.
MS. HARTNETT: That's correct, Your Honor.
THE COURT: Okay. why don't you have turn over? How could date the defining determining
 factor whether things are predecisional and
 deliberative? What does the date have with whether
 they are deliberative not?
MS. HARTNETT: Your Honor, think it's the
 same. Just going back least the Nixon case, the
 Supreme Court case where was about presidential
 communications that case, but the Court explained the
 theory what --why there executive privilege.
 And that referred the notion of, you know, that
 actually recognized the element deliberative process,
 that those who expect kind public disclosure all
 their deliberations will less candid.
The same --I would submit, and this the
 rationale that's been provided the two privilege
assertions before this case that were based this work
product rationale. addition the deliberative
 process documents that would obviously part the work
 file that would chilling and disruptive the
 executive branch's ability independently respond
 congressional oversight had turn over every
 document its work file the matter.
Now, it's good question why they would even
 need those documents.
THE COURT: Does that mean they shouldn't have turn over any document? question is, are you
 telling that there's some test that applies other than
 the two elements predecisional and deliberative?
 the --are you saying that you can withhold documents even they don't meet that test?
MS. HARTNETT: Yes, Your Honor. believe
 can, under the theory executive privilege articulated
 here and those past examples. Again, would agree
 that it's unclear why they would even want that type
 material, but that within the scope what they were
 seeking from the time the executive privilege
 assertion which unfortunately, you know, necessitated
 privilege assertion protect that work file. It's very
 possible that they don't want forwards e-mails that
 have talk about news reports other documents that
may part the person's work file who working
the oversight matter. But again, when the --when came
 time --you know, moving toward contempt, there was
 question whether this material was properly protected
 under the executive privilege precedent that the executive
 branch turns when determines whether make
 assertion privilege.
And here, building those past assertions,
 which themselves built case law such Nixon,
 recognizing the need for that sphere confidentiality,
 that's why the assertion was made here.
THE COURT: But the need for confidentiality,
 even recognizing Nixon, and all the communications
 cases that followed, No. was qualified. ultimately
 the Court gets balance. And No. was individualized. Espy required individualized document-by-document
 procedure followed when dealing with what think
 you would agree are even more confidential and even
 more constitutionally fraught materials, which the
 communications, how could lesser process required
 now? How can you just say file, sorry, no?
MS. HARTNETT: Well, Your Honor, ideally that
 wouldn't what would say. would have continued
 dialogue with the --with the legislative branch.
THE COURT: But that's what you're asking
MS. HARTNETT: Well, right. Because we're here
 now. we're the process where have been unable
 accommodate that away and make clear that they don't
 actually need whatever would covered the edges
 the work file whatever. Because they actually --we
 were that point them seeking hold the Attorney
 General contempt and having decide whether that
 material properly subject claim privilege.
Ordinarily would not want this
 point, but able find accommodated resolution.
THE COURT: Well, both you are pointing
 what happened the interim. And don't think the time
 period that went compelling because everybody
 has told that process process you, Judge, really
 need stay out of. And agree that. I'm not going sit here we'll never finish this litigation and
 assess whether every single negotiating position was
 appropriate. You don't even agree what the
 negotiating positions are.
The point we're here now and your position
 still, it's after February it's privileged. The
 privilege I'm relying on, while derives, form executive privilege. It's something called the
deliberative process privilege. has elements. One
that it's predecisional. The second that it's
But you're also telling don't actually have demonstrate you that any the documents the
 file are actually predecisional deliberative.
MS. HARTNETT: may, don't --I think
 agree that should --we should tell the Court --make
 clear the Court that the documents that we're
 withholding under the claim executive privilege
 match the privilege that we're asserting. think
 the one place where may, and I'm hopefully trying
 communicate it, that don't believe that the
 deliberative process rationale that you articulated alone,
 that was not solely the basis for the constitutionally
 based privilege claim.
That claim derived from the separation powers
 and the need protect the independent functioning the
 executive branch, particularly this context here where
 we're responding Congress directly they seek
 conduct oversight. don't know this will helpful and certainly don't mean
THE COURT: Well, what --what case embraces
 deliberative process materials, deliberative materials
 under that separation power's theory that the case law
seems just step away from the question. says that
 the whole idea candor has constitutional function,
 and think --but they are very unclear and murky about
 the extent which the Constitution covers these
 materials. But the extent does, what it's trying
 cover candor deliberations. don't the materials have deliberative
 themselves for this privilege apply?
MS. HARTNETT: No, Your Honor. And think
 maybe one helpful example, again, because there limited
 judicial precedent the question the Congress trying seek our documents directly Court, and specifically
 this type document, there not case about these
 type documents that went merit's decision.
But, for example, point our brief the
 1954 assertion President Eisenhower. And that was
 the context him issuing directive across the
 executive branch not provide materials that were
 internal agency materials the --in the context the
 Army McCarthy hearings. There was not case that didn't generate case that then validated that privilege, but
 there broad --that's broad assertion and one
 that's our briefs described. And would commend that the Court's attention. Because does show that the
 privileged assertions the past, ones that have been few
and far between, but have happened, and there was
 specifically about the deliberative process was not
 neatly tied the definition deliberative process
 the common law but was broader assertion order
 preserve the executive independence that --in the
THE COURT: Well, parties can assert things.
 And the other side says I'm going respect that, that
 doesn't mean was legally required. just means that
 that's the way worked out.
People are less respectful each other's
 positions these days when comes asking for
 documents. And now you're asking me, third party,
 the third branch, get the middle. And don't
 need more than, well, the executive has done this before legal basis tell them you can't have it? That's
 what you're asking tell them. You can't have it.
Don't need more than, well, the past the
 executive has withheld this and they weren't upset?
MS. HARTNETT: Your Honor, think we've tried cite whatever --just clear, course, we're
 not --we were coming here seek your endorsement the
 privilege this case. believe that these have been
THE COURT: Okay. You moved for summary
MS. HARTNETT: Well, only after the case was
 brought against us. mean, have try find some
 way end the case. And believe that judgment
 the context the Court having assumed jurisdiction over
 the legal question issue, did move for judgment.
But guess broader point that are not
 trying seek gain something from this lawsuit,
 some --you know, something that didn't may have
 before. We, we've explained the Court, believe that
 the accommodation and negotiation process generally works.
 And, again, since Watergate there have been only
 assertions privilege, indicating that there's not
 rampant problem with overassertion the executive
 privilege. may, just back the work product notion.
 And appreciate the deliberative process core
 important privilege and one that will protect lot the
 executive's interests, might helpful think from
 the judicial perspective having your file clerk's
 work matter where --again, I'm not suggesting all
 that that would subject some sort judicial
 oversight disclosure, but just the idea having
 produce not only the core part the file that talks
 about the opinions the cases and the wrangling that
goes you work through case, but also just the
 edges when you were going talk your clerks about
 the case what someone else may have said about it,
 things that are not core the deliberations but are part the independence that you enjoy being judge.
And think the point what that we're trying make here it's similar chill that would happen knew that every investigation --because, again,
 this would something that would outside privilege
 and therefore not even subject showing need that
 they could regularly ask for and receive without any
 showing need, the material that collect have
 tried respond them co-equal. And that's the
 point are trying
THE COURT: Was that distinguishable from case
 where know that, when you responded them, you said didn't happen? The guns did not walk. The United
 States does not conduct itself that way. That turned out wrong.
And they want know why such blanket
 statement would made that was not true. And you've
 said, okay, well, we'll give you everything internal that
 led the creation that statement. We're willing
 give you. clearly you can that, why would your
internal conversations about afterwards when you said,
 oops, need fix that, how are going fix that,
 what are going say now, why that going inhibit
 candor deliberations and impair the executive's ability respond effectively oversight more than giving the
 documents that happened before? And why doesn't the fact
 that there trigger here, this misstatement, change
 the situation?
MS. HARTNETT: Your Honor, that's --I think
 that the point that the same chill the institutional
 interests would interest for all those documents,
 both the pre-February and post, and that's why they all, our view, you know, were properly subject --could
 subject congressional response work product. That's
 what those documents are. think the department explained the
 December letter when they conveyed the over 1300 pages documents about the creation the February letter,
 that they made exception their long-standing
 practice not providing their work product responding Congress order help explain and show how that
 misstatement that letter came be.
And that was seen accommodation, and
 one that think shows the responsible functioning the
 executive branch order meet demonstrated --a need
that was specifically identified the Congress
 understand how did that --or the committee about how understand why that misstatement came be. point that that level the
 confidentiality some level threatened --the
 candor the deliberations are affected any time you turn
 over some executive branch documents. But here decision
 was made the department and publically explained that
 that was --it was important help the committee
 understand how that misstatement came be.
But would submit that there --it doesn't
 open the door. And that's kind how the oversight
 process works generally, the extent you make
 accommodation for one thing where there's been specific
 explanation why they need and the parties have met and
 decided accommodate, that the extent that that would
 then open the door for any additional work product that
 generated would create very bad incentive that point make accommodation.
And here would submit the department did the
 right thing providing that material the committee
 help understand that, even though did have some
 confidentiality costs for the people that were identified the documents produced.
THE COURT: Well, all right. Well, your
introduction your initial brief, you stated that the
nature the nature the department's objection
 production that deliberative communications may
 implicate the agency's internal decision-making processes,
 foreign policy, and national security concerns.
Just want make clear, there's claim here
 that any particular documents being withheld implicate
 foreign policy national security concerns. that
MS. HARTNETT: I'd have look specifically
 because there's couple --one our categories
 documents that were like less central the actual
 assertion was that had some --there was some
 discussions. I'm looking the Colburn declaration
 involving foreign relations issues dealing with the
 government Mexico. Those are more
THE COURT: But weren't those carved out? They
 are not even part what they are talking about
MS. HARTNETT: They were --there are some that
 became --due the fact that they were connected the
 congressional response, few documents, believe, that
 the declaration explains that nature were there. But
 that wasn't the basis for the privilege assertion. The
 privilege assertion's basis was the need protect the -our response Congress and our response the documents
generated our deliberations about how respond
THE COURT: All right. Well, we've talked and
 talked and talked, think, about whether these documents
 are deliberative not and whether that matters. think clearly matters. And that Espy makes look that
 and makes look on, not wholesale basis, but
 individualized basis. don't see how can get around
 that even Espy says have that even for
There --wasn't one problem with the District
 Court's decision that led the reversional Espy the
 fact that the District Court ruled the documents
 unit and didn't make individualized decisions? Wasn't
 that one the things they were upset about?
MR. KIRCHER: Well, Your Honor
THE COURT: Why they said can't even give him
 any difference all because didn't anything?
 don't want opinion like that.
MS. HARTNETT: No. No. Understandably, Your
 Honor, but think just one key point Espy, just the
 extent that know you've referred the presidential
 communications privilege sort being the hot top the hierarchy this deliberative process privilege
 being possibly below that. From our conception
that one constitutional executive privilege when
assert against Congress, and therefore, they
 are both the same category. other words, the proper way concede the
 privilege that would get the way that the privilege
 would attach once the assertion was made. And
 doesn't matter --the rationale that supported the
 constitutional claim less important than the fact that was assertion privilege made the President
 with respect congress. And think that's --we
 just --I wanted make that point clear.
THE COURT: your view the showing that has
 that outweigh the senate collect committee's
MS. HARTNETT: Correct. Yes.
THE COURT: But all the cases you rely for
 that proposition are communications privilege questions
 that talk about national security and the President's
ability get the best advice from his aides.  How 
there's case that equates those Espy.  Certainly  
seems set out different tests for the two.  

Was Espy wrong?
MS. HARTNETT: Not all. mean, no. That's
 not our submission all. think Espy helpful two
 points this respect.
First, early the opinion, does note that
assertions against congress --they were discussing kind the historical assertion privilege describing the
 various elements. They said over time against Congress,
 and this quote from Espy 739, were most often
 essentially assertions the deliberative process
 privilege. think Espy itself was recognizing that
 there was that history different type assertion.
And then the most important part the Espy,
 believe, where does state expressly that the case
 should not read any way affecting the scope and
 the privilege the congressional executive context. And think first you might think which way does push
 you, guess the question.
The question there assertion whether
 the privilege should allow information not part
 the criminal justice process where you have individual
 person there, somebody submitted subject grand jury
 investigation from having that --and the idea somehow
 comprising the criminal justice process withholding
 information presented distinct concerns that the Court
 discussed Espy; whereas think
THE COURT: Right. that might mean greater
 need for disclosure Espy. the other hand, there's
 not constitutional imperative the other side Espy. the committee would say no, the need greater for
 because we're talking about constitutional function
 versus constitutional function. --but let's assume there's constitutional
 underpinnings what you're doing, and the committee
 doing, and there's also constitutional underpinnings
 the notion that the executive entitled candor its
 deliberations. The question then, what test have apply? And doesn't Espy suggest what you're talking
 about the deliberations within agency, opposed
 within the White House, you look the test for
 deliberative process. And then there's very flexible hoc balancing District Court. You figure out what the
 test test applied.
MS. HARTNETT: think that you're right. There not lot case law this point. Because, again,
 there's just few cases that have had the executive and
 the Congress going, you know, head-to-head the Court
 this question. Senate Select the one that has kind
 actually reached decision. You have other materials
 issue with ATT. That was national security information,
 and you have couple other cases that implicated
 different information. guess point that the extent this
 constitutionally based executive privilege, not common
law assertion. And the reason why the Court
THE COURT: Well, don't all the cases --I don't
 think they far the committee says rule out any
 constitutional basis for the deliberative process
 privilege. But don't they say that it's weaker? Don't
 they quote Law Review articles that say it's not the same,
 and say, well, we're not going that far, but this has been
 said. mean, don't they suggest that there are tiers
 here? T-i-e-r-s.
MS. HARTNETT: Yes. Both probably.
And think that Nixon really instructive
 here, Your Honor, because that was about tapes and about
 the presidential communications. But the principle that
 was recognized that case the Supreme Court was about
 those who expect public dissemination their remarks may
 well temper candor. It's the typical deliberative process
And don't think not only has not been
 ruled out that deliberative process equally weighty
 component executive privilege presidential
 communications when it's being asserted against Congress
 for all the separation power's reasons tried
 describe. think that that case actually supports the
 assertion here.
And again, Nixon itself had footnote
distinguishing the Congressional context. Not -remember, both Nixon and --you have the actual -in Espy you have the information being subject some
 disclosure. And think the point there being both
 cases that the criminal process need one where you may able allow the disclosure that wouldn't actually
 attach congressional dispute with the executive. think that --again, you can't --you
 don't want overread the cases, and appreciate that,
 but the other hand think gleaned from those cases
 that the point that have stronger basis for
 withholding when are trying meet our political
 branch coequal counterpart.
And, again, particularly here the context
 them trying figure out how are responding what
 they are trying figure out, which becomes even one step
 removed. mean, that really would start compromise
 our ability function independently and feel like
 have separate existence and one that allows meet
 them equal branch.
THE COURT: Well, we're going apply the
 privilege, we've talked about the deliberative element.
 The other element that the documents predecisional.
What the decision that these documents
MS. HARTNETT: think you --the discussion
 earlier kind suggested that there some restriction policy decision. don't think that's supported
 the case law. It's certainly not the scope the
 privilege that described here. Your Honor noted,
 there would many decisions made throughout the entire
 process figuring out how respond congressional
 oversight, including what witness send up, you know,
 how write letter, you know, various --you know,
 any --any number decisions come throughout
 department's response congressional oversight. And
 certainly those decisions and documents preceding those
 decisions would covered the assertion the
And then more broadly, and agree that it's
 more categorical sense the work file, but it's each the pieces, you take them out may not themselves
 reveal deliberation. Although, also pointed out,
 some them that may seem innocuous would. For example,
 how long did take someone open email? That could read receipt. Who the distribution line for certain letter? Some things that may seem less
 deliberative nature, but that would give overall
 picture the committee how conducted ourselves and
 how decided strategize and organize ourselves
response oversight, again, not particularly tied
 particular situation but the aggregate would reveal and
 chill our deliberative process were they have ready access that. And that's
THE COURT: Are different world?
 Haven't you agreed that how you responded their
 oversight this case legitimate subject inquiry
 for them?
MS. HARTNETT: think what --we certainly
 said was that the misstatement that was made the
 December letter raised legitimate concern for them --and don't want --I don't want beyond
 what was said the December letter, but --yes,
 that noted that because had had inaccurate letter
 that believed that was appropriate provide them
 with documents explaining that letter.
THE COURT: Right. And it's significant
 inaccuracy made very high official about very
 important matter.
THE COURT: everybody agrees that they have
 the right say how did that happen. And you agree
 that they have the right say how did that happen,
 how --but then you say everything after that happened
 going our work file, how can they their job that you
just said was legitimate job that they are allowed
MS. HARTNETT: Your Honor, think think
 they've done their job. Again, we're here before the
 Court, and the Court now has that under advisement. And the extent --and this does get little bit into the
 need balancing that Your Honor recognized that would uncomfortable place for the Court when
THE COURT: But inevitable.
MS. HARTNETT: mean, and certainly only
 once --I mean, Senate Select was the only case where you
 had Court the end the day actually doing the need
 balancing the context the two political branches
 going head head. That was the only one. And there
 was, not minimize the task that was before the Court
 there, but that was question whether the second copy the tapes was needed because Congress already had one.
And some level, even though, again there institutional question about how the Court balancing
 those needs makes difference, but there also did
 not --it would not emmesh the Court potentially the
 way that this would, which that they say they need
 more. say that they already have enough satisfy
 their obstruction investigation. And the extent that
they have
THE COURT: Were there any post-February
 materials presented? understood, believe from the
 letter the President, believe that's where got
 that. was statement that the President was told that
 how the facts unfolded and were discovered have been
 false, even though that was post-February that that's
 been produced. that correct?
MS. HARTNETT: think with respect the
 post-February documents that have been produced are
 largely those that are related the report. there
 are over 300 documents that were produced conjunction
 with our --the release the report highly
 unredacted form. And think provide further public
 explanation and the committee about what happened, and there would post-February documents those.
THE COURT: The report refers exhibits
 that aren't publically available with the report. Did
 they get the exhibits the report?
MS. HARTNETT: produced --I can clarify this needed, but produced 300 pages documents cited
 the report. they have those.
THE COURT: Are those all the exhibits cited
 the report? Some the exhibits cited? you gave
 them the report, did they get all the documents the
looked reaching his conclusions?
MS. HARTNETT: No, they did not get all the
 documents that the looked at. But what's important
 that the extent there's some additional need that
 they --first all, there question whether the
 need balancing should even before the Court now. And
 think what would submit --that they haven't really
 made tried make the Senate Select showing, and
 that would one way kind resolve this after
 finding privilege without having get into the need.
Another way would make ruling the
 legal question that was kind the crux what brought here, which was whether the privilege could extend
 beyond presidential communications, and then send the
 parties back mediation where have been some
 extent over the past several months.
THE COURT: You can mediation any time you
 want. You just call chambers and say want
 back mediation. will order you back mediation.
 Please that before write opinion. We've got other
 cases that are ready that would love focus on.
But let take you there. Because, think -and haven't decided this case, but think you can tell
 from questions both sides that I'm pretty confident
 that the law recognizes deliberative process privilege
for intraagency deliberations that form the
executive privilege that has some constitutional
 implications and underpinnings, even they are less
 compelling than those attached presidential
 communications. the Attorney General --the President
 and the Attorney General may, believe, I'm leaning
 determine that may assert executive privilege over
 deliberative documents response congressional
But for that privilege withstand test
 that's been brought this Court, cannot blanket
 omnibus this file privilege, but the individual
 materials have to, fact, meet the elements the
 privilege. The privilege does not apply box.
 applies the materials the box. you're right that the privilege exists. He's
 right that you can't say anything from February
 thereafter and that's all, Judge, don't have
 anymore. must demonstrated that the individual
 documents contain deliberative matter.
That has determined before balancing, but determine that they are --that any them are
 privileged, because you've made the showing that think
 you have make, that doesn't mean they win. It's
 qualified privilege, and then there's balancing test
that needs applied. think probably the Espy
test and not the Senate Select committee test, but there's balancing any event that has applied. that's what think, that you're right
 that some documents are privileged, that the committee
 right that this assertion privilege inadequate
 shield every single post-February document, that
 something further needs done.
I'm asking you the same question asked him.
 What does opinion look like? saying you lose,
 summary judgment for you, summary judgment for you, and
 then give you time let know you want mediate
 the next step, presumably the next step would
 this case still pending before me, they are asking for
 the documents. you're asserting privilege, you need
 give --you need substantiate that least
 categories documents, not every single page. There
 would some further showing you need make me. that what need next?
MS. HARTNETT: Your Honor, guess, may take
 one more run the congressional response work product
 portion because what you just described --because think
 you're describing more limited ruling about the
 privilege, and light some the other recent
 investigations and attempts get this material,
think that that ruling --it would important
 least recognize the availability the privilege for
 broader set documents. But don't want --I don't
 think that was your exact question.
THE COURT: Okay. But what you've told
 your authority for that that you've done before and
 there's actual case law that says there's something
 even broader under the executive privilege than the
 deliberative process privilege.
THE COURT: mean, there may more and
 greater constitutional dimension the deliberative
 process privilege, you've got coequal branch the
 other side. But that doesn't mean it's different
 documents are privileged. That just might mean you
 balance differently, does

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