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Judicial Watch • Fast & Furious Motion to Lift Stay

Fast & Furious Motion to Lift Stay

Fast & Furious Motion to Lift Stay

Page 1: Fast & Furious Motion to Lift Stay


Number of Pages:108

Date Created:June 6, 2014

Date Uploaded to the Library:June 09, 2014

Tags:Lift, Fast, Furious, Stay, motion, Obama, White House, Supreme Court, DOJ, FOIA, IRS

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Plaintiff,  Civ. No. 1:12-cv-1510 (JDB)  

Plaintiff Judicial Watch, Inc., counsel, respectfully requests that the Court lift the indefinite stay the proceedings and order Defendant U.S. Department Justice promptly produce Vaughn index. addition, pursuant LCvR 7(f), Judicial Watch requests oral hearing its motion. grounds therefor, Judicial Watch states follows: 

MEMORANDUM LAW June 20, 2012, response subpoena issued the Committee Oversight and 
Government Reform the U.S. House Representatives (the House Committee), Deputy 
Attorney General James Cole informed the House Committee that President Barack Obama had asserted executive privilege over specific set records. Memorandum Opinion, dated September 30, 2013, Committee Oversight Reform Eric Holder, Jr., No. 1:12-cv-1332ABJ (D.D.C.) (House Committee litigation)  The U.S. Department Justice (the Department) refused provide privilege log otherwise describe the withheld documents.  Id. Nor has the Department subsequently produced any the records.  The House Committee filed suit August 13, 2012.  Id. 
Pursuant the Freedom Information Act (FOIA), June 22, 2012, Judicial Watch submitted request the Office Information Policy, component the Department, seeking access the same records that were withheld from the House Committee pursuant the Presidents assertion executive privilege and that are now issue the earlier-filed House Committee litigation.  Defendants Motion Stay, Docket Entry Number 15, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510 JDB (D.D.C.) (Judicial Watch litigation) 
The Department denied Judicial Watchs FOIA request, and, September 13, 2012, Judicial Watch filed suit.  See Complaint, Docket Entry No. Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.).  The Department subsequently filed its Answer October 18, 2012.  See Answer, Docket Entry No. 10, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.).  There was dispute that Judicial Watch exhausted its administrative remedies.  Nor was there any dispute that records responsive Judicial Watchs FOIA request exist.  Therefore, the only issue before the Court whether the Department properly withholding records responsive Judicial Watchs FOIA request, which can resolved filing dispositive motions the merits. November 11, 2013, the Department sought stay the proceedings because, part, [the] principles comity and respect for orderly judicial process counsel strongly against addressing the privilege claims this FOIA suit while Judge Jackson actively considers the 
House Committee litigation.  Defendants Motion Stay  Specifically, the Department argued, Most significant, course, would any decision regarding the merits the executive
privilege assertion. Judge Jackson were reach the merits the assertion, such ruling would, the very least, relevant here. Likewise, however, any ruling this Court the merits the assertion would relevant the House Committee litigation. Id. 12. February 15, 2013, over Judicial Watchs objection, this Court granted the Departments motion stay.  See Order, Docket Entry No. 20, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.) (Stay Order). its order, the Court stated, Whats more, Judicial Watch has offered reason that delay would present hardship. sure, has right request the information.  But stay does not deny that right, simply delays  temporarily  adjudication the right.  Order, ECF No. (February 15, 2013), (emphasis added). addition, the Court explained, But the Department does not seek, and the Court will not award, indefinite stay pending ultimate resolution the House Committee litigation. Id.  The Court therefore concluded that a brief stay appropriate. Id. 
Subsequent the granting the motion stay February 15, 2013, the Court has repeatedly and routinely affirmed the stay six occasions: June 2013, September 2013, November 2013, January 13, 2014, March 27, 2014, and May 2014.  See June 2013 Minute Order, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.); September 2013 Minute Order, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.); November 2013 Minute Order, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.); January 13, 2014 Minute Order, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.); March 27, 2014 Minute Order, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB
(D.D.C.); and May 2014 Minute Order, Judicial Watch, Inc. U.S. Department Justice, No. 1:12-cv-01510-JDB (D.D.C.).  The next joint status report due July 31, 2014.  May 2014 Minute Order. 
Although the Department and the Court may have anticipated that the stay proceedings would temporary and brief, has become anything but that. three weeks, will have been two years since Judicial Watch sent its FOIA request, more than months since Judicial Watch filed its lawsuit, and months since the Court stayed the proceedings.  There dispute that Judicial Watch has statutory right request and receive all non-exempt records responsive its FOIA request. Stay Order (To sure, [Judicial Watch] has right request the information.); see also Taylor Sturgell, 553 U.S. 880, 885 (2008) (Under FOIA, any person has right request any records held federal agency.).  Nor there dispute that Judicial Watch has statutory right litigate the withholding any records.  Taylor, 553 U.S. 885 (If agency refuses furnish the requested records, the requester may file suit federal court.). Simply put, Judicial Watch has waited long enough have its day court. its order granting the stay proceedings, the Court stated, In the present circumstances, however, brief stay appropriate allow ongoing settlement discussions, and full settlement not reached, let the House Committee court rule the motion dismiss issue the April 24, 2013 hearing.  Stay Order date, the parties the House Committee litigation have not reached settlement.  Nor are they close reaching settlement. their latest Joint Status Report, the parties could not even agree whether Judge Jackson should refer the matter Judge Barbara Rothstein for further mediation.  Joint
Status Report, Docket Entry No. 78, Committee Oversight Reform Eric Holder, Jr., No. 1:12-cv-1332-ABJ (D.D.C.) (It defendants position that the parties should return mediation before Judge Rothstein discuss whether settlement now possible.  Plaintiffs position that further mediation will not helpful, and that settlement discussions directly between the parties are more likely productive.). addition, the Court the House Committee litigation did not grant the Departments motion dismiss.  The parties have subsequently completed briefing cross-motions for summary judgment, and the Court the House Committee litigation held hearing May 15, 2014. 
The indefinite stay proceedings should lifted for three reasons.  First, the reasons for which the motion stay was granted have passed.  The House Committee litigation was not dismissed due lack jurisdiction and the parties the House Committee litigation have not reached settlement nor are they any closer reaching settlement.  Second, any eventual decision the merits the House Committee litigation would have little, any, effect Judicial Watchs case.  Because Judicial Watch not party the House Committee litigation, Judicial Watch would not estopped from litigating its claim.  See Taylor, 553 U.S. 893-895.  Waiting for any eventual decision, therefore, would not bring this matter any closer resolution. Also, based Judge Jacksons comments from the bench during the May 15, 2014 hearing, the Court may not issue final judgment for quite some time.  See Transcript May 15, 2014 Motions Hearing, Committee Oversight Reform Eric Holder, Jr., No. 1:12-cv-1332-ABJ (D.D.C.), pp. 40-41.1 
The transcript attached Exhibit
Third, and most important, the issues the two cases, although related, are different. 
Playboy Enterprises, Inc. Department Justice, 677 F.2d 931, 936 (D.C. Cir. 1982) ([T]he 
issues discovery proceedings and the issues the context FOIA action are quite different. That for one reason another document may exempt from discovery does not mean that will exempt from demand under FOIA.). the instant matter, the issue before the Court whether the Department properly withholding records responsive Judicial Watchs FOIA request. the House Committee litigation, the issue before the Court whether the Department properly withholding records responsive Congressional subpoena.  See e.g., May 15, 2014 Transcript pp. 8-9 (Judge Jackson stated that she has to address the unique situation when the requester the legislature. particular, legislative committee engaged oversight. .); id. (Judge Jackson asked, Putting aside the question whether the deliberative process privilege can invoked before Congress .); id. 80. (The Departments attorney stated that the claimed privilege is special type privilege that really doesnt come pass except when were trying resist request from Congress.). 
The basic fact that claims privilege are different the FOIA context from the Congressional subpoena context undisputed.  During the May 15, 2014 hearing, the following Exchange occurred: 
THE COURT: mean, there may more and greater constitutional dimension the 
deliberative process privilege, youve got coequal branch the other side.  
But that doesnt mean its different documents are privileged.  That just might 
mean you balance differently, doesnt it?
MS. HARTNETT2: Thats right, Your Honor. may something --these are materials that the ordinary course they were sought some FOIA whatever, may very well that wouldn't important enough for the --as matter deliberation 
revealing something about deliberation for these documents attempt protected. But the context the Congress trying seek information from the 
context investigation about how were actually responding the investigation, that not made for this case. That something that there not judicial case for because has never been put Court before. Youre the first Court that Im aware that has had the question. 
May 15, 2014 Transcript pp. 78-79. Following this exchange, the attorney for the House Committee stated: Understand that the privilege that they are articulating here today, the committee will better under FOIA. will better issuing FOIA requests the 
Department Justice get this information than will pursuant Article Id. pp. 86-87. other words, the Department informed Judge Jackson that the Department could not withhold under FOIA all the records currently withholding the House Committee litigation. 
Significantly, there are recent examples where FOIA requester  Judicial Watch particular  has received records previously withheld response Congressional subpoena.  Both Judicial Watch and the House Committee sent requests for records related the September 11, 2012 terrorist attack Benghazi, Libya.  Judicial Watch requested records pursuant FOIA; the House Committee requested records under Congressional subpoena. The records released contained different information.  See Catherine Herridge, Discrepancies between 
Ms. Hartnett represented the Defendant during the hearing.  Mr. Womack, lead counsel the instant matter, was the counsel table during the hearing.
Benghazi emails released Congress, watchdog group, Fox News (May 2014), available  Judicial Watch received more information than the House Committee. other words, the government agency  the U.S. Department State, that case 
 determined that certain privileges asserted the Executive Branch response the Congressional subpoena were not applicable the request Judicial Watch under FOIA.  Similarly, response FOIA request Judicial Watch, the Internal Revenue Service provided more complete version record than was provided congressional committee. See May 14, 2014 Judicial Watch Press Release, available Whereas the Congressional subpoena process political process, FOIA legal process, established statute and case law. therefore surprise that responses the Executive Branch FOIA requests are more complete than those provided Congressional subpoenas. sum, Judicial Watch has patiently waited for its day Court.  The House Committee litigation progressing slowly.  The parties that litigation have not reached settlement, nor does appear though they will ever reach settlement.  There clear indication how and when that case will resolved.  However, clear that the instant matter should move forward.  The Department should required produce Vaughn index all records responsive Judicial Watchs FOIA request that continues withhold.  The Department should also produce all records that may properly withholding response the Congressional subpoena but are not being properly withheld under FOIA.  The parties should
then meet and confer, determine whether the issues before the Court may narrowed, and jointly propose briefing schedule for dispositive motions. 
Pursuant Rule 7(m) the Local Rules Civil Procedure, the undersigned counsel for Judicial Watch conferred with counsel for the Department.  The Departments counsel informed the undersigned counsel for Judicial Watch that his client opposes this motion. 
WHEREFORE, Judicial Watch respectfully requests that the Court lift the indefinite stay proceedings. Dated:  June 2014 Respectfully submitted, 
/s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, 20024 
(202) 646-5172 
Counsel for Plaintiff
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  future.  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  functions?  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  government."  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  scope.  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.  THE COURT: Right.  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  else?  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  privilege.  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  documents.  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  that.  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.  MR. KIRCHER: Okay.  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 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.  THE COURT: Right.  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.  MR. KIRCHER: Okay.  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  unintentional.  THE COURT: Come on.  MR. KIRCHER: Anyway, don't want quibble  with you about that. But certainly, yes, intention  issue.  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.  MR. KIRCHER: Okay.  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 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  that.  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  privileged?  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  individualized  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.  THE COURT: Right.  MR. KIRCHER: think it's too late. Let  just --because can add one more piece the  presidential  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.  THE COURT: Well  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  here?  MR. KIRCHER: Yes, course, you can. mean,  Miers did that. mean, didn't call privileged  log.  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  privilege.  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  fact.  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  purposes.  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  timely.  THE COURT: Okay. Can you explain why you  keep telling that they've abandoned their deliberative  process claim? I'm not sure understand that  characterization.  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  privilege.  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.  MR. KIRCHER: Right.  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  quick.  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  based.  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  Congress  THE COURT: How can you possibly assert  privilege over documents that you just told aren't  deliberative, that one the two elements the  privilege?  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.  Should  THE COURT: What the case law that creates  constitutionally based work file privilege that covers  every single piece paper the work file  MS. HARTNETT: There  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  comes.  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  matter.  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  deliberative.  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  do.  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.  But  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  deliberative.  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  area.  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  matters  THE COURT: Okay. You moved for summary  judgment.  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  right  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  Congress.  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  communications.  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  showing?  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