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Judicial Watch v USDOJ MH (07-08-14pm)

Judicial Watch v USDOJ MH (07-08-14pm)

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Number of Pages:34

Date Created:July 17, 2014

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UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INCORPORATED,
Plaintiff, )Civil Action
 )No. 12-1510
)July 2014

U.S. DEPARTMENT JUSTICE,		)4:00 p.m.

Defendant.
)Washington, D.C.
 
TRANSCRIPT STATUS CALL PROCEEDINGS
 BEFORE THE HONORABLE JOHN BATES,
 UNITED STATES DISTRICT COURT JUDGE
 
APPEARANCES:
 
For the Plaintiff:	 Michael Bekesha, Esq.
JUDICIAL WATCH, INC.
425 Third Street,
Suite 800
 Washington, 20024

(202) 646-5172
Fax: (202) 646-5199
Email: Mbekesha@judicialwatch.org 

Paul Orfanedes, Esq.

JUDICIAL WATCH, INC.
425 Third Street,
Suite 800
 Washington, 20024

(202) 646-5172
Fax: (202) 646-5199
 

For the Defendant: Eric Womack, Trial Attorney

U.S. DEPARTMENT JUSTICE
 Civil Division Massachusetts Avenue,
Washington, 20530

(202) 514-4020
Fax: (202) 616-8470
Email: Eric.womack@usdoj.gov 
APPEARANCES: (Cont.) behalf the John Russell Tyler, Trial Attorney 

Defendant:	 U.S. DEPARTMENT JUSTICE 
Civil Division Massachusetts Avenue, 
Washington, 20530 

(202) 514-2356 
Fax: (202) 616-8470 
Email: John.tyler@usdoj.gov 
Court Reporter:Scott Wallace, RDR, CRR
	Official Court Reporter
 Room 6503, U.S. Courthouse
 Washington, D.C. 20001
 202.354.3196
 scottlyn01@aol.com 
Proceedings reported machine shorthand, transcript produced computer-aided transcription.
 
AFTERNOON SESSION, JULY 2014  
00:00  (4:03 p.m.)  
00:00  THE COURTROOM CLERK: Your Honor, have civil action  
00:00 12-1510, Judicial Watch, Inc. versus Department Justice.  
00:00  Counsel, would ask that you please approach the bench  
00:00  and identify yourselves for the record, starting with the  
00:00  plaintiffs.  
00:00  MR. BEKESHA: Good afternoon, Your Honor. Michael Bekesha  
00:00 behalf Judicial Watch. Along with Tom Fitton,  
00:00  president and Judicial Watch representative representing Judicial  
00:00  Watch.  
00:00  THE COURT: All right. Good afternoon.  
00:00  MR. WOMACK: Hello, Your Honor. Eric Womack from the  
00:00  Department Justice behalf the defendant. With  
00:00  counsel table John Tyler.  
00:00  THE COURT: Good afternoon you, too. All right.  
00:00  don't think this going very long hearing because the  
00:00  papers aren't very long. The stay has been pretty long and it's  
00:00  lasting impact, but let's talk about whether should lifted,  
00:00  and think should hear from you first, Mr. Bekesha.  
00:01  MR. BEKESHA: Thank you, Your Honor. you just  
00:01  indicated, the stay has been ongoing for quite some time now.  
00:01  THE COURT: months.  
00:01  MR. BEKESHA: months. It's been two years since  
00:01  sent our FOIA request, about 18, months since filed the sheets  Page 07/17/2014 05:46:48  

00:01  complaint, and date still don't know how many records are  
00:01  responsive our requests, what types records, what the  
00:01  records are, and whether not any the records could  
00:01  segregated. this point believe the case should proceed.  
00:01  THE COURT: Well, what's changed between now and the last  
00:01  time the stay was entered which really was with your consent?  
00:01  MR. BEKESHA: What changed was there was hearing before  
00:01  Judge Jackson and during 
00:01  THE COURT: So?  
00:01  MR. BEKESHA: And during that hearing prior that  
00:01  was unclear whether not Judge Jackson was going have  
00:01  hearing she was going just rule the papers. was  
00:01  our belief that since she acted fairly quickly the  
00:02  jurisdictional issue, that she may rule quickly the merits  
00:02  the case.  
00:02  After sitting and listening and rereading the transcript  
00:02  from the hearing, seemed clear that decision won't  
00:02  all that soon, and even there decision, it's going  
00:02  complicated. Also, during the hearing, attorney for Attorney  
00:02  General Holder seemed suggest that some records may could  
00:02 available under FOIA that may not available the subpoena  
00:02  context.  
00:02  THE COURT: But that's true, that wasn't revelation  
00:02 you, was only revelation that they happened say it,  
00:02  right?  

00:02 
MR. BEKESHA: think it's always been our position that 

00:02 
that may the case, but it's the first time that believe the 

00:02 
Justice Department has acknowledged that there may 

00:02 
difference between the records and how they will respond 

00:02 
FOIA request versus congressional subpoena, and think this 

00:02 
point, light that, well the period time that we've 

00:02 
waived, it's appropriate for least Vaughn index 

00:03 
produced. lot FOIA litigation these days, work with 

00:03 
agencies prior briefing the merits but prior summary 

00:03 
judgment, receive draft Vaughn index, we're able analyze 

00:03 
which records are being withheld and decide whether not

00:03 
THE COURT: don't want accuse you being naive, but 

00:03 
they've been negotiating and talking about narrowing the other 

00:03 
case and maybe releasing some records for months and months and 

00:03 
months, you will acknowledge. What makes you think that 

00:03 
you're going make any progress with them? 

00:03 
MR. BEKESHA: think when you have two branches 

00:03 
government much it's the courtroom, it's political 

00:03 
battle. Neither side willing give in. 

00:03 
THE COURT: No, but they want avoid judicial 

00:03 
decision. They're not afraid judicial decision FOIA 

00:03 
case, they have that all the time, but the subpoena context 

00:03 
where Congress and the executive branch are going it, the 

00:03 
courts have recognized and, indeed, this Court has recognized and 

00:03 
the Department Justice and various administrations have 

00:04  recognized there advantage avoiding the issue being  
00:04  presented and decided the Court ultimately.  
00:04  MR. BEKESHA: That's correct, Your Honor, but I'm not  
00:04  quite sure that's present this case. They've gone  
00:04  settlement discussions, mediation numerous times, and there  
00:04  hasn't been any success, least that's available the public.  
00:04  About three weeks ago Judge Jackson indicated the parties that  
00:04  they should meet and confer again, and they don't succeed  
00:04  settling the dispute, that she would again send another  
00:04  judge handle the mediation.  
00:04  THE COURT: But you're right that we're long ways  
00:04  that case from merits resolution, then your request lift the  
00:04  stay and proceed with litigation this case inevitably going  
00:04 some duplication, not?  
00:04  MR. BEKESHA: may be. It's unclear. started off,  
00:05  Your Honor, don't know what records are being withheld.  
00:05  don't know how many records are being withheld. And also, based  
00:05 the other proceedings, seems though not all records are  
00:05  being withheld under the executive privilege now but under the  
00:05  deliberative process privilege, there are lot issues  
00:05  that 
00:05  THE COURT: nonconstitutional constitutional  
00:05  dimensions?  
00:05  MR. BEKESHA: little bit both according  
00:05  based the last hearing, and think that the best solution  

00:05  right now for Vaughn index provided can see how  
00:05  many records there are, see the claims exemption, and  
00:05  see what types records, and Judicial Watch can assess whether  
00:05 not it's appropriate brief the issue it's appropriate  
00:05  not brief the issues. lot times, Your Honor, I'll look  
00:05 Vaughn index and we'll recognize there proper claim  
00:05  exemption there, and once the government satisfies their burden,  
00:05  we're happy with dismissing the case. You know, that seems  
00:06  different from 
00:06  THE COURT: But that's not real advantage lifting the  
00:06  stay because that's the same posture we're currently; you  
00:06  don't have the records, there's real advantage there  
00:06  terms any avoiding any prejudice, the extent that you're  
00:06  not going get records. The only advantage, seems me,  
00:06  has your achieving the goal obtaining records.  
00:06  MR. BEKESHA: That's correct, Your Honor, but we're moving  
00:06  forward. mean, guess the problem we've been here now  
00:06  months, two years after, and there's been progress. sent  
00:06  FOIA request, have statutory right send FOIA request,  
00:06 receive response, litigate any denial records, and  
00:06  nothing's happened.  
00:06  THE COURT: The basic legal question with respect  
00:06  deliberative process privilege that two-part inquiry whether  
00:06  the documents are predecisional and deliberative.  
00:07  MR. BEKESHA: Yes, Your Honor. sheets  Page 07/17/2014 05:46:48  

00:07  THE COURT: And that's the same inquiry the case the  
00:07  House Committee case before Judge Jackson and before me, that  
00:07  inquiry just whether there's deliberative process privilege,  
00:07  correct?  
00:07  MR. BEKESHA: No, Your Honor. With all due respect, there  
00:07  are several issues the other litigation, one being whether  
00:07  not the Justice Department may claim deliberative process  
00:07  privilege response congressional subpoena. the Court  
00:07  finds that the Justice Department may so, then the analysis  
00:07  whether it's properly being withheld under the deliberative  
00:07  process, and both parties that case seem agree that  
00:07  deliberative process privilege the same that context  
00:07 FOIA. would respectfully disagree. think there's  
00:07  different standard, and think there are two separate issues  
00:07  before the Court.  
00:07  THE COURT: Different standard the nonconstitutional  
00:07  deliberative process privilege?  
00:07  MR. BEKESHA: Yes, Your Honor.  
00:07  THE COURT: How so?  
00:07  MR. BEKESHA: civil litigation Well, there's  
00:08  difference between "in theory" and "in practice." theory,  
00:08  deliberative process 
00:08  THE COURT: That's theoretical and itself, but  
00:08  ahead.  
00:08  MR. BEKESHA: FOIA litigation, Exemption Five  

00:08  supposed cover all civil discovery privileges and adopt them  
00:08  100 percent. The D.C. Circuit seems have separated from that,  
00:08  and there's little bit different argument and burden under  
00:08  deliberative process now under FOIA and under the civil context  
00:08  which would congressional subpoena.  
00:08  THE COURT: Well, we'll see. don't want opine  
00:08  what the correct standard this preliminary setting.  
00:08  Now, it's possible, course, that Judge Jackson could  
00:08  totally moot this case her rulings, correct?  
00:08  MR. BEKESHA: No, Your Honor. some point 
00:08  THE COURT: Well, couldn't she effectively she  
00:09  ordered release the vast trove documents that you're  
00:09  seeking they were released the Committee; presumably,  
00:09  not challenged, then there would objection releasing  
00:09  them you, effective mootness, even not technical  
00:09  mootness.  
00:09  MR. BEKESHA: don't think so, Your Honor. Judge Jackson  
00:09  would order release records the House Committee and the  
00:09  House Committee would then decide whether not the records  
00:09  should released the public. The House Committee may not  
00:09  release the records the public, Judge Jackson cannot order the  
00:09  House Committee release the records the public, and  
00:09  we're position where the records could released under  
00:09  that, and the Justice Department could take the position that  
00:09  that was one case, we're not going respond the same way sheets  Page 07/17/2014 05:46:48  

00:09  the FOIA context, withhold the records, and then the public 
00:09  THE COURT: think you could paint lots scenarios  
00:09  where wouldn't moot, but it's also possible that would moot  
00:10  because that might not happen.  
00:10  MR. BEKESHA: It's possible, yes.  
00:10  THE COURT: And again, that would way avoid  
00:10  unnecessary duplication. Now, tell me, the extent that you  
00:10  have crystal ball, were lift the stay and this matter  
00:10  were move forward, why expect that would reach  
00:10  decision before Judge Jackson would resolve the pending summary  
00:10  judgment motions?  
00:10  MR. BEKESHA: You may not, Your Honor, but you may. But  
00:10  again, Judicial Watch, believe have right move  
00:10  forward. believe that we've waited respectfully and patiently  
00:10  long enough and that should move forward, and some records may  
00:10 produced. Oftentimes during briefing, you know the FOIA  
00:10  context, records may released because they're analyzed and  
00:10  looked second time. really just want the process take  
00:10  place, the process believe we're entitled to, believe the  
00:11  law allows us, and 
00:11  THE COURT: So, Judge Jackson rules her case that  
00:11  the deliberative process privilege applies but that the documents  
00:11  are not protected the privilege either nonconstitutional  
00:11 some constitutional grounds, and orders the documents released  
00:11 the Committee, and the Department Justice decides take  

00:11 appeal, and let's say either Judge Jackson the D.C. Circuit  
00:11  enters stay pending appeal, likely happen that  
00:11  context, what should happen this case? Should this case,  
00:11  nonetheless, forward perhaps with this Court ordering release  
00:11 the documents?  
00:11  MR. BEKESHA: think this case this Court should move  
00:11  forward this case appropriate under FOIA. We're not  
00:11  party that case, we're not part the briefing. may see  
00:12  records, may not.  
00:12  THE COURT: But order release the records while  
00:12  was still pending the D.C. Circuit, would you agree that  
00:12  should, nonetheless, stayed pending appeal, this case, the  
00:12  order release should then stayed pending appeal?  
00:12  MR. BEKESHA: think the Department Justice that  
00:12  point would decide whether not they were going appeal your  
00:12  ruling and ask for stay.  
00:12  THE COURT: Let's assume that they did.  
00:12  MR. BEKESHA: that point, yes, because our case, you  
00:12  would this Court would make ruling, and the appeal process  
00:12  would take place. It's what happens the FOIA context every  
00:12  day. This ordinary run the mill FOIA case and should  
00:12  proceed such, and when the time comes, the time comes,  
00:12  can address then, but oftentimes the government the Court  
00:12  rules against the government, they appeal, and course they ask  
00:12  for stay because doesn't make sense appeal the disclosure sheets  Page 07/17/2014 05:46:48  

00:12 records they're already being produced. 

00:12 
THE COURT: this FOIA context, ultimately 

00:13 
reach Well, proceed this way? the first question 

00:13 
whether the deliberative process privilege applies, which the 

00:13 
two part inquiry, and then have grapple with some balancing 

00:13 
question the need Judicial Watch for the documents 

00:13 
versus any privilege assertion? 

00:13 
MR. BEKESHA: the D.C. Circuit it's two-part test. 

00:13 not believe, unfortunately, that there need-balancing 

00:13 
test with the deliberative process privilege under FOIA. 

00:13 
THE COURT: 

00:13 
MR. BEKESHA: 

00:13 
Honor. 

00:13 
THE COURT: 

00:14 
Mr. Womack. 

00:14 
MR. WOMACK: 

00:14 
THE COURT: 

00:14 
MR. WOMACK: 

00:14 
because

00:14 
THE COURT: 

00:14 
MR. WOMACK: 

All right. What else you want tell me? have nothing else this time, Your 

All right. Let's hear from the government. 

Thank you, Your Honor. months long time. months long time, but that's 

Fast approaching indefinite stay, isn't it? 
Actually, don't think is, Your Honor, 

00:14 
and think one the interesting things here that this 

00:14 
anything other than, your February 2012 order recognized, the 

00:14 
ordinary run the mill FOIA case. is, all know here, 

00:14 FOIA case that followed upon the dispute between the political 

00:14 
branches over congressional subpoena for records and the 

00:14 
President's assertion executive privilege, and what seeks 

00:14 
here disclose records the public that are being sought 

00:14 the underlying subpoena case. 

00:14 
THE COURT: But the extraordinary nature wouldn't 

00:14 
really reached unless and until ordered the documents 

00:14 
produced Judicial Watch. Everything else that point 

00:14 
just sort routine, except there's some interesting and, 

00:15 
perhaps, sensitive legal issues along the way, but nothing that 

00:15 
really impacts the executive branch's interests that led the 

00:15 
assertion the executive privilege the House Committee case. 

00:15 
Nothing will really threatened until order release. why 

00:15 
shouldn't move forward with this case now after this long 

00:15 
period waiting see the other case would get resolved 

00:15 
some expeditious manner, either the motion dismiss 

00:15 
jurisdictional grounds through settlement being reached 

00:15 
through prompt ruling summary judgement, none which has 

00:15 
happened? Why shouldn't least get the process going here 

00:15 
and move forward? There's harm the executive branch, 

00:15 
there? 

00:15 
MR. WOMACK: would actually take exception that, Your 

00:15 
Honor, and there's probably couple reasons why. First 

00:15 
that the same reasons that justify the entry the stay 

00:15 
originally, judicial economy, judicial efficiency, and respect 

00:16 for the negotiation accommodations for the political branches. 
00:16  THE COURT: Judicial economy and judicial efficiency are  
00:16 problem, not your problem.  
00:16  MR. WOMACK: Correct.  
00:16  THE COURT: That's not burden the executive branch.  
00:16  MR. WOMACK: Correct, but also think those  
00:16  interests actually did, your order, explain that what was  
00:16  happening the underlying case was that the Court, Judge  
00:16  Jackson, was eventually going have decide certain issues  
00:16  that were fundamental issues first impression, and this  
00:16  case actually does not, counsel for Judicial Watch  
00:16  suggests, raise only the issue nonconstitutional deliberative  
00:16  process. What Judge Jackson signaled oral argument and what  
00:16 heard after that that that case is, fact, proceeding  
00:16  pace. She actually asked the parties back negotiation.  
00:16  That ended the end June. are currently mediation  
00:16  until the end July. And Judge Jackson has signaled that after  
00:16  that she intends issue ruling the merits the case  
00:16 summary judgment, and there she has signaled, and is,  
00:17  course, not final until actually issued, but she has  
00:17  signaled that she going rule for the government part and  
00:17  rule for the Committee part, and what she intends recognize  
00:17 some form constitutional executive privilege grounded  
00:17  the deliberative process theory.  
00:17  Following that order, what she has signaled she will  
00:17  ask for the Department provide additional information, and  

00:17  Your Honor knows from the Myers case, difficult question  
00:17 what form that additional information would take, and that  
00:17  is, fact, issue that has been litigated Myers and may  
00:17  litigated the Jackson case, but there would order  
00:17  requiring additional information that would then be, believe,  
00:17  made available the public. that case she's actually  
00:17  already proceeding issue the Vaughn. this Court were now  
00:17 the eleventh hour lift the stay, then the past months  
00:17  have, fact, been meaningless.  
00:17  THE COURT: this really the eleventh hour? The  
00:17  eleventh hour phrase that indicates the twelfth hour soon  
00:17 come. don't think that's where are. Eleven hours may  
00:18  have passed, but who knows how many more are yet come?  
00:18  MR. WOMACK: Yes, Your Honor. have the summary  
00:18  judgment briefs fully briefed. have oral argument. have  
00:18  had negotiations following that that ends July, and the only  
00:18  point I'm trying make that this not something where the  
00:18  stay was entered, progress has been made here, and there's  
00:18  simply nothing going the underlying case.  
00:18  THE COURT: No, don't think nothing's going on. just  
00:18  think it's pretty darn slow, and I'm not throwing stones the  
00:18  government, the House Committee, the other party that case,  
00:18 Judge Jackson any way, shape form, but things are going  
00:18  slowly there.  
00:18  Now, those kinds cases involving executive privilege sheets  Page 07/17/2014 05:46:48  

00:18 
should cautiously and slowly, but here's concern, 

00:18 
Mr. Womack. This idea indefinite stay something that 

00:18 
resisted and, quite frankly, the Department Justice has said 

00:18 
no, no, no, that's not what we're after here, that's not what 

00:19 
should happen, but see certain point there's 

00:19 
reality test, and see happening, even not one step, 

00:19 
see happening series steps. It's already been 

00:19 
months. It's going several months more before Judge 

00:19 
Jackson issues ruling, trust me, least several months more. 

00:19 
When she issues that ruling, it's final appealable ruling, 

00:19 
and there may more steps yet come after that ruling, but 

00:19 
even it's final appealable ruling, guess one side 

00:19 
the other going take appeal. know you're going 

00:19 
standing front saying, continue the stay. Let's assume 

00:19 
that have kept the stay place. You're going say, 

00:19 
continue the stay during that appeal. That's another year 

00:19 
two. indefinite stay effect, not? 

00:20 
MR. WOMACK: were simply say let's not address 

00:20 
that when the point time comes, other words, when know 

00:20 
that Judge Jackson has issued ruling and that somebody has 

00:20 
taken up, and instead that time analyzing and saying, 

00:20 
What the posture, are both parties going up, has one 

00:20 
party decided now that her ruling will simply final and they 

00:20 
won't take her up, that the case, should decided 

00:20 
the time that that occurs. That's why this not indefinite 

00:20  stay, because each point significant moment the underlying  
00:20  House Committee litigation, this Court has done what  
00:20  responsibly duty bound, believe, its discretion when  
00:20  issuing stay this nature, which analyze the stay  
00:20  place the time and say, now appropriate lift. And  
00:20  with all due respect, Your Honor, think now would the worst  
00:20  time because have Judge Jackson signaling that she about  
00:20 take momentous step issuing ruling and requiring  
00:20  something akin Vaughn.  
00:20 this Court were order Vaughn prior ruling,  
00:21  could potentially affect the nature the ruling. Who knows  
00:21  what would happen she wanted the 
00:21  THE COURT: What's the harm ordering Vaughn issue  
00:21  [sic] impacting the nature her ruling? she looks and  
00:21  treats with respect, but conscientiously decides what she  
00:21  should do, don't see where the harm from that.  
00:21  MR. WOMACK: The only harm tends take different  
00:21  direction than Judge Jackson has taken the House Committee  
00:21  litigation, which 
00:21  THE COURT: Judge Jackson adult. She can decide  
00:21  whether speak wisely not. She's perfectly capable that.  
00:21  MR. WOMACK: Absolutely, Your Honor, and it's not just  
00:21  what you say, it's the nature producing Vaughn. you know  
00:21  from the Myers litigation, the executive branch has taken  
00:21  positions whether not appropriate produce sheets  Page 07/17/2014 05:46:48  

00:21 
Vaughn, whether court can order the production Vaughn 

00:21 
vis--vis

00:21 
THE COURT: What happens she says that let's first 

00:22 
look just the basis deliberative process privilege 

00:22 
without any constitutional elements. she says, yes, these 

00:22 
documents are covered deliberative process privilege, 

00:22 
that the end the inquiry before her? 

00:22 
MR. WOMACK: That not, Your Honor, how understand she 

00:22 
intends proceed, but you want talk about the 

00:22 
hypothetical, can. What she has indicated that she going 

00:22 recognize the constitutional deliberative process privilege 

00:22 
that form executive privilege and then analyze 

00:22 
according the case law that follows the

00:22 
THE COURT: let's say she does that and then she does 

00:22 
two-part inquiry whether the documents are deliberative and 

00:22 
predecisional, which the same nonconstitutional 

00:22 
deliberative process privilege, and then goes the balancing 

00:22 
for the constitutional privilege, she decides that the 

00:22 
documents are protected this constitutional deliberative 

00:22 
process privilege, does that moot this case, there the 

00:23 
possibility this case still going forward because the 

00:23 
constitutional balancing, which balancing the House 

00:23 
Committee's interests involving the House Committee's interests, 

00:23 
isn't really the assessment that would made here this FOIA 

00:23 
case? 

00:23  MR. WOMACK: No, it's not. The important thing what 
00:23  THE COURT: this case would forward, more less.  
00:23  MR. WOMACK: Importantly, what think counsel recognized,  
00:23 think correctly, that the FOIA context and wouldn't  
00:23  just simply deliberative process, would recognition  
00:23 the constitutional executive privilege. Under either  
00:23  situation the FOIA context, there isn't that same need  
00:23  balancing for either the constitutional executive privilege  
00:23 deliberative process, respectfully they would look it,  
00:23  and, frankly, there's valid assertion executive  
00:23  privilege, would raise that under and would claim that  
00:23  that satisfies 
00:23  THE COURT: But it's different balancing analysis  
00:23  because the House Committee and Judicial Watch are not the same.  
00:23  MR. WOMACK: they were balancing analysis, then  
00:24  perhaps Judicial Watch would have different and certainly  
00:24  would have different interests the documents, but that  
00:24  balancing analysis would not take place. The question for the  
00:24  Court here would be, that privilege that recognized  
00:24  ordinary civil discovery, and would say, due Judge  
00:24  Jackson's ruling, the answer would yes.  
00:24  THE COURT: What's the scenario terms Judge  
00:24  Jackson's rulings that this case mooted out and don't have  
00:24 proceed with deciding issues relating Judicial Watch's  
00:24  claim for documents? sheets  Page 07/17/2014 05:46:48  

00:24 
MR. WOMACK: think it's very possible and think highly 

00:24 
likely that she would issue ruling that could determinative 

00:24 executive privilege; however, would say

00:24 
THE COURT: Determinative you mean persuasive? 

00:24 
MR. WOMACK: would say determinative the existence. 

00:24 she finds that there constitutional and executive 

00:24 
privilege, think that would determinative the issue. 

00:24 
THE COURT: Determinative under what theory, res judicata, 

00:24 
collateral estoppel? 

00:24 
MR. WOMACK: No, under the theory no, not under the 

00:24 
terms you would not bound that holding. 

00:24 
THE COURT: Then why you use the word determinative? 

00:25 
MR. WOMACK: shouldn't use the term determinative. 

00:25 
Perhaps should say highly probative. think another court 

00:25 this circuit

00:25 
THE COURT: would still have forward with the 

00:25 
case and decide whether was persuaded? 

00:25 
MR. WOMACK: But you wouldn't actually, think, have 

00:25 through the same length analysis. You could simply point 

00:25 Judge Jackson and say this privilege constitutional 

00:25 
executive privilege that has been recognized ordinary civil 

00:25 
discovery and, therefore, believe it's valid

00:25 
THE COURT: And could use her the Vaughn index 

00:25 
provided that case. 

00:25 
MR. WOMACK: would there. 

00:25  THE COURT: there scenario which Vaughn index  
00:25  will provided her case?  
00:25  MR. WOMACK: understand how she intends proceed,  
00:25  Your Honor, there scenario which some form  
00:25  description the documents would not provided.  
00:25  THE COURT: And just the economy doing that reason  
00:25 continue the stay for lengthy potentially lengthy  
00:25  period won't use the term "indefinite" your view?  
00:25  MR. WOMACK: Absolutely, Your Honor. Speaking the line  
00:26  attorney, would like not twice, but addition  
00:26 
00:26  THE COURT: Well, you once and then the second time  
00:26 easy, Mr. Womack.  
00:26  MR. WOMACK: Well, the problem you never know what the  
00:26  second time going be, and that's the interesting thing,  
00:26  that Vaughn not simply Vaughn because this case  
00:26  first impression the House Committee litigation, will  
00:26  instructed Judge Jackson what form that description  
00:26  should take, and believe that that would then provide Judicial  
00:26  Watch with certain information that point.  
00:26  THE COURT: The Vaughn index may different that case  
00:26 that context that case than this case.  
00:26  MR. WOMACK: We're not certain exactly how it's going  
00:26  come out because she hasn't ordered 
00:26  THE COURT: Because you know what Vaughn index would sheets  Page 07/17/2014 05:46:48  

00:26  look like this case.  
00:26  MR. WOMACK: Yes, Your Honor. fact, think that she  
00:26 thinking along the lines she's indicated, the parties would  
00:26  have something similar Vaughn index. just don't know  
00:26  exactly what will until see her ruling.  
00:26  THE COURT: And again, know I'm repeating myself some  
00:26  extent, but tell why that the government would harmed  
00:27 opposed the inefficiency for the Court. Why would the  
00:27  government harmed remove the stay and let this case start  
00:27  forward least through Vaughn index and the discussions that  
00:27  the plaintiff's counsel wish have attempt narrow  
00:27  issues and, perhaps, have some documents released? What the  
00:27  harm that would experienced the executive branch 
00:27  MR. WOMACK: think 
00:27  THE COURT: other than your workload?  
00:27  MR. WOMACK: Thank you, Your Honor, appreciate that.  
00:27  think fundamentally, the House Committee litigation is,  
00:27  essence, dispute between the two political branches that raises  
00:27 question first impression that has never been decided any  
00:27  Federal Court and that, frankly, has involved massive  
00:28  negotiations settlement, well multiple briefings the  
00:28  nature and essence that privilege, well what information  
00:28  needs provided about the documents, and that has also been  
00:28  something that has been repeatedly raised the Committee not  
00:28  having been provided them ever, Vaughn description the  

00:28  documents. this Court were now say, Let's proceed  
00:28  despite having stay place for the past months, let's  
00:28  proceed and have Vaughn ordered just when Judge Jackson has  
00:28  signaled that she's about the same thing, consistent and  
00:28  accompanying ruling the merits the executive privilege,  
00:28 believe that that inappropriately taking step beyond and  
00:28 front the case that should driving this litigation which  
00:28 the House Committee litigation.  
00:28  THE COURT: Now, there's been some reliance comments  
00:28  made your colleague the Department Justice the  
00:28  hearing.  
00:28  MR. WOMACK: Yes.  
00:28  THE COURT: you want have any comment that?  
00:28  MR. WOMACK: would. think that counsel's  
00:28  representation counsel's comments the hearing are  
00:29  mischaracterizing those comments. What counsel intends say  
00:29  that there were other words, this were the  
00:29  ordinary course and there were FOIA request and there was  
00:29  political dispute between the legislative and executive branches,  
00:29  then possible just the commendation process  
00:29  with Congress for the executive branch make  
00:29  discretionally release. That not this case. This case  
00:29  situation where already have the president the United  
00:29  States asserting executive privilege over the subset documents  
00:29  that they now seek this FOIA case and that there preceding sheets  Page 07/17/2014 05:46:48  

00:29  litigation between the political branches that involves  
00:29  settlement negotiations over those very documents. And  
00:29  certainly this litigation we're not going turn around  
00:29  and something covered executive privilege, think  
00:29  would withholdable under this case.  
00:29  THE COURT: Why wouldn't one think that forcing some  
00:29  activity this case might have positive effect the parties  
00:30 the House Committee case deciding engage further  
00:30  discussions and, perhaps, reaching some accommodation partial  
00:30  accommodation?  
00:30  MR. WOMACK: think the danger 
00:30  THE COURT: It's those kinds events that usually  
00:30  prompt further discussions and, perhaps, fruitful discussions.  
00:30  MR. WOMACK: think the difference here, Your Honor,  
00:30  that once you light fire, you never really know how far it's  
00:30  going spread, just don't think you're able predict,  
00:30  once you order something that significant both cases  
00:30 Vaughn index, produced that provides extensive  
00:30  description the documents, that that will somehow weigh  
00:30  favor the parties coming closer resolution; could have  
00:30  the opposite affect. would caution Your Honor being able  
00:30 predict the way that would go. don't want get into  
00:30  the 
00:30  THE COURT: Just theoretically, why would have  
00:30  opposite effect?  

00:30  MR. WOMACK: Because certainly, Congress has said  
00:31  public statements all along, they have sought more information  
00:31  about the documents, they want public information about the  
00:31  documents. And they are getting that from this court,  
00:31  think definitely alters the calculus for settlement and  
00:31  potentially alters the way that Judge Jackson orders Vaughn  
00:31  the underlying House Committee litigation.  
00:31  THE COURT: anything that either side would get would  
00:31  only really Judicial Watch getting something out lifting  
00:31  the stay; you think the change, the sensitive calculus the  
00:31  parties the House Committee case because may that  
00:31  whatever that thing is, you mentioned getting the Vaughn index,  
00:31 part the negotiation process between the parties the  
00:31  House Committee case?  
00:31  MR. WOMACK: more eloquently than could have said,  
00:31  Your Honor. want add, Your Honor, that another issue  
00:31  that should not overlooked that and think Your Honor  
00:31  can understand this critically from your experience the Myers  
00:31  case the relations between the branches are very sensitive,  
00:32  and 
00:32  THE COURT: That's one word for these days.  
00:32  MR. WOMACK: That one word for it. And think that  
00:32  small impacts and small effects have very real consequences, and  
00:32 think that that should counted on. very delicate  
00:32  situation. sheets  Page 07/17/2014 05:46:48  

00:32  THE COURT: All right, Mr. Womack, what else would you  
00:32  like tell me?  
00:32  MR. WOMACK: Unless Your Honor has further questions,  
00:32  don't have anything further.  
00:32  THE COURT: All right. Thank you. And Mr. Bekesha,  
00:32  something further?  
00:32  MR. BEKESHA: Yes, Your Honor. When Mr. Womack was  
00:32  talking about potential Vaughn index something that Judge  
00:32  Jackson may order, kept saying something akin Vaughn  
00:32  index, some form Vaughn index, something describe the  
00:32  records, talks about the Myers case and talks about what  
00:32  can ordered, separation powers, that's only response  
00:32 congressional subpoena. Vaughn index this instance  
00:32  FOIA case proper, and their questions, even Judge  
00:33  Jackson orders the identification records, Your Honor seems  
00:33 indicate, that may not actually Vaughn index, may  
00:33 something else.  
00:33  So, there's difference there. Even what Judge Jackson  
00:33  orders may not sufficient under FOIA. FOIA allows for,  
00:33  requires Vaughn index, and that's what we're asking for this  
00:33  case.  
00:33  Mr. Womack talked about the House Committee keeps asking  
00:33  for Vaughn index and they haven't received one date, and the  
00:33  reason because it's political fight between two branches  
00:33  government and whether not constitutionally one branch  

00:33 
government can order another branch provide Vaughn index. 

00:33 
That's why this ordinary FOIA case where Vaughn index

00:33 
THE COURT: you're getting three branches involved 

00:33 
because it's the branch ordering Vaughn index 

00:33 
actually the judicial branch. 

00:33 
MR. BEKESHA: Yes, Your Honor, gets even more 

00:33 
confusing, and that's why we're standing here before you today. 

00:34 
We've patiently, respectfully waited months. When the stay 

00:34 
was first granted, believe proposed Vaughn index that 

00:34 
time, this isn't new concept that we're bringing the 

00:34 
Court's attention. It's our way trying move this case 

00:34 
forward, even it's little bit. It's significant step, and 

00:34 believe we've waited long enough. 

00:34 
THE COURT: Well, knew that Judge Jackson was issuing 

00:34 ruling that case some dimension I'm not clear whether 

00:34 resolves all issues; probably doesn't, but knew she 

00:34 
was going issuing ruling that case within the next 

00:34 
three four weeks, wouldn't wise for prudent, 

00:34 
least, hold off lifting the stay until after that happened 

00:34 
and see what happens there? 

00:34 
MR. BEKESHA: could be, but based what you've heard 

00:35 
today from the Justice Department, think even with some type 

00:35 
ruling, whatever is, it's going complicated, there's 

00:35 
going one branch government ordering one two other 

00:35 
branches government something

00:35 
THE COURT: Well, complicated doesn't mean that 

00:35 
shouldn't continue the stay, may mean that should, it's 

00:35 
going complicated, can see just what kind impact 

00:35 
has and what bearing might have here, rather than speculating. 

00:35 something complicated, means cautious, wait and see 

00:35 
what actually is. 

00:35 
MR. BEKESHA: think it's complicated not with respect 

00:35 
our case but the positions that both parties are taking the 

00:35 
other litigation, whether not the Justice Department, it's 

00:35 final order final judgment that's appealable, whether not 

00:35 
they appeal the jurisdictional issue; Judge Jackson orders the 

00:35 
production Vaughn index, whether not that interferes with 

00:36 has some constitutional questions it, there even 

00:36 
ruling Judge Jackson three four tweaks isn't going 

00:36 
the end it, which means could here again three 

00:36 
four weeks before Your Honor talking about the same issues. 

00:36 
Should you wait another three four weeks three four 

00:36 
months? 

00:36 
THE COURT: understand that continuing the stay involves 

00:36 
that. There's question about it. 

00:36 
MR. BEKESHA: just think we've this case being 

00:36 
ordinary FOIA case requesting subset records, don't even 

00:36 
know how many the records there are, that most likely these 

00:36 
records are sitting box somewhere the Justice Department, 

00:36 Vaughn index can created, you know, the appropriate 

00:36  amount time, and that point the parties can meet and confer  
00:36  and can move forward.  
00:36  THE COURT: Well, what did Mr. Womack say? And help  
00:36  out with remembering this. What the estimate when Judge  
00:36  Jackson going rule? She indicated some 
00:37  MR. BEKESHA: wasn't sure gave estimate.  
00:37  THE COURT: thought said something about July 
00:37  Mr. Womack, did you give some indication some likely point  
00:37 time that Judge Jackson likely rule?  
00:37  MR. WOMACK: Your Honor, not know from Judge Jackson  
00:37  when she intends rule. What know that mediation  
00:37  not never ending; mediation only scheduled the end  
00:37  July, and after that mediation ceases, she told she will then  
00:37 working the opinion.  
00:37  THE COURT: could many months?  
00:37  MR. WOMACK: could many months, but also might  
00:37 shorter period than that. And this Court felt that  
00:37  needed readdress the stay interim basis, it's been  
00:37  doing, then that seems like wise choice.  
00:37  THE COURT: Would you agree that she had done nothing  
00:37  over the next two years, that maybe the time would come lift  
00:37  the stay?  
00:37  MR. WOMACK: would think that there would still  
00:37  reason not lift the stay that case given the enormous  
00:38  importance the issues she's deciding. sheets  Page 07/17/2014 05:46:48  

00:38  THE COURT: And how about three years?  
00:38  MR. WOMACK: think, Your Honor, not dodge the  
00:38  question, there may issue prejudice we're talking  
00:38  about three four years, but that's not what we're talking  
00:38  about, we're talking about case that continued 
00:38  THE COURT: How about two why different, the  
00:38  prejudice question, different for two years versus three years?  
00:38  Why don't you come the microphone. I'm being unfair the  
00:38  court reporter questioning you standing counsel table.  
00:38  What I'm searching for is: point time, you're willing  
00:38  say, Oh, yes, there may some point time, multiple years,  
00:38  but why different with stay that goes for three  
00:38  four years than stay that goes for two three years  
00:38  stay that goes for two years? What's the difference?  
00:38  MR. WOMACK: think, Your Honor, that what did not mean  
00:38 say that it's not just simply matter counting days.  
00:38  don't think that's it. What understood Your Honor was  
00:38  suggesting was that Judge Jackson had simply heard oral  
00:39  argument, sent mediation, and then did nothing, and the  
00:39  case just lapsed into gray area.  
00:39  THE COURT: Right.  
00:39  MR. WOMACK: think that some point, looked like  
00:39  there wasn't actually activity occurring, then the interest  
00:39  economy, judicial efficiency, well the harm plaintiff,  
00:39 some point may become real, but that's not where are  

00:39 
right now. The Court actively trying decide very difficult 

00:39 
issues and, frankly, you know, that just takes time, and 

00:39 
don't think she should punished for needing the appropriate 

00:39 
amount time that. 

00:39 
THE COURT: None are punishing Judge Jackson. 

00:39 
Please. don't think that any rulings that are being 

00:39 
urged the Judicial Watch counsel that might 

00:39 
contemplating are any kind punishment for Judge Jackson. 

00:39 
What Judge Jackson stated publicly, intend rule 

00:40 August 2015." Would you say the day after that 

00:40 
public statement, Judge Bates, you should continue the stay 

00:40 
this case? 

00:40 
MR. WOMACK: think what would say, Your Honor, 

00:40 
that that the case that, frankly, drives the the 

00:40 
case that involves dispute between the political branches where 

00:40 
settlement discussions are ongoing and there are still reasons 

00:40 
not issue rulings that punishment was poor choice 

00:40 
word but has real effect the House Committee litigation, 

00:40 would still think there would reasons not lift the stay 

00:40 that point. But that order were issued, and certainly 

00:40 
think would appropriated for Your Honor call the parties 

00:40 here and discuss whether, light that order, the 

00:40 
circumstances have changed. might take the position has 

00:40 
not, but those right now are purely hypotheticals because she 

00:40 
proceeding

00:40  THE COURT: That's what judges do, ask hypothetical  
00:40  questions.  
00:40  MR. WOMACK: Yes, Your Honor.  
00:40  THE COURT: And that's what counsel try avoid  
00:41  answering them. bad reflection you. All right. Let  
00:41  let Mr. Bekesha continue his presentation briefly.  
00:41  MR. BEKESHA: just had one more point, Your Honor.  
00:41  There's lot concern about how this FOIA litigation will  
00:41  interfere cause complications with Congress. Quite frankly,  
00:41  all FOIA requests that Judicial Watch sends some degree has  
00:41  spurred action between the two branches government. Most  
00:41  recently had FOIA litigation separate case over some  
00:41  the Benghazi related materials, information was released  
00:41  Judicial Watch, and understanding is, because that,  
00:41  select committee was created the Hill. the standard  
00:41  now whether not Judicial Watch sending and litigating FOIA  
00:41  requests going interfere with the branches government,  
00:41  then Judicial Watch should give doing FOIA litigation.  
00:42  THE COURT: think the point that they're making  
00:42  little more refined than that, and that that this  
00:42  particularly sensitive context because involves the assertion  
00:42 executive privilege. Was executive privilege asserted  
00:42 the Benghazi 
00:42  MR. BEKESHA: not believe was, but when comes  
00:42 the FOIA litigation the case before you, it's executive  
00:42  privilege, it's deliberative process, it's Exemption under  
00:42  FOIA.  
00:42  THE COURT: agree with you with respect the FOIA  
00:42  case, but the sensitive they're expressing the relationships  
00:42  between the two branches government the context where  
00:42  executive privilege has been asserted reaction  
00:42  congressional subpoena.  
00:42  MR. BEKESHA:  That what that case about, and that's  
00:42  why that case complicated, and this case little bit  
00:42  cleaner, little bit clearer, and little bit more simple.  
00:42  That's why urge the Court respectfully lift the stay and  
00:42  order the production Vaughn index and allow the parties  
00:42  meet and confer after that.  Thank you, Your Honor.  
00:42  THE COURT:  All right.  Thank you, all, very much. will  
00:43  chew this and get out ruling the motion lift the stay  
00:43  some time the, hopefully, relatively near future, and  
00:43  appreciate the briefing and the argument all concerned.  Thank  
00:43  you.  
00:43  (Proceedings adjourned 4:46 p.m.)  

CERTIFICATE Scott Wallace, RDR-CRR, certify that
 the foregoing correct transcript from the record
proceedings the above-entitled matter.
 
Scott Wallace, RDR, CRR Date
	Official Court Reporter