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UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA COMMITTEE OVERSIGHT AND No. 12-CV-1332 GOVERNMENT REFORM, UNITED STATES HOUSE REPRESENTATIVES Plaintiff, ERIC HOLDER, JR., Defendant. ------------------------------------------------------ TRANSCRIPT MOTIONS HEARING BEFORE THE HONORABLE AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE Thursday, May 15, 2014 APPEARANCES: For the Plaintiff: KERRY KIRCHER, ESQUIRE ISAAC ROSENBERG, ESQUIRE, Office the General Counsel 219 Cannon Building Washington, 20515 202-225-9700 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 BARBARA VICO, FOCR, CRR, RMR (202)354-3118 Room 6509 PROCEEDINGS 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 morning. 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 BARBARA VICO, FOCR, CRR, RMR (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 -of your investigation scrutiny, and you're complaining about the timeliness and the quality their subpoena responses, the reasonableness their negotiation positions. And aren't you drawing straight into the intrabranch dispute that everybody told wasn't going have get into? MR. KIRCHER: Well, your Honor, all fairness don't think ever told you that you might not have get into balancing --I think what told you was don't think the privilege they asserted should recognized all. And you agree with us, then you certainly don't have get into that. don't think ever said you disagree with that, you don't have the balancing piece. That --that --it's certainly not our complaint. I've gone back look the transcript. don't think ever made that kind representation the Court, that you disagreed with that the privilege itself should not recognized, that you wouldn't also --that we're just going home and say Well, thanks, don't need the documentation. 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 -as privilege response FOIA request. One the differences may that I'm not sure that balancing necessarily takes place the FOIA context. THE COURT: Right. I'm just asking about the definition the privilege, not what happens after you find out that it's privileged. Well, you lay out the limits the privilege, but what's your authority for the proposition that the decision that's being deliberated about has formal --a policy decision, sort operations, "this what we're going today" decision opposed any decision about how proceed some manner that the agency has make decision about? Why respond -how should respond Congress, how should respond the media, not decision that they are allowed shield their deliberations about? general, putting aside the question whether the misconduct that then outweighs it. What you're saying not even privilege the first place. MR. KIRCHER: Right. you're going accept that there privilege here, then yes, think we're the decision --you know, it's predecisional and deliberative realm. mean, all the case law the deliberative process area has those two basic elements it. Now, may well that, again, you're going accept the fact that --the argument that there's privilege here, that some these things that they did may predecisional and deliberative. I'm not --I'm not disputing that possibility. course THE COURT: you're not saying, then, that the decision the documents have precede can only formal policy decision? Are you --I'm not sure what your answer question just was, but MR. KIRCHER: Well, it's hard for talk about specific documents categories documents, Your Honor, given know nothing this date, two and half years after the subpoena was issued, still have nothing about what they have withheld. THE COURT: have questions for them. MR. KIRCHER: Okay. I'm sure you do. THE COURT: All right. we're going get 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 comprising the criminal justice process withholding information presented distinct concerns that the Court discussed Espy; whereas think THE COURT: Right. that might mean greater need for disclosure Espy. the other hand, there's not constitutional imperative the other side Espy. the committee would say no, the need greater for because we're talking about constitutional function versus constitutional function. --but let's assume there's constitutional underpinnings what you're doing, and the committee doing, and there's also constitutional underpinnings the notion that the executive entitled candor its deliberations. The question then, what test have apply? And doesn't Espy suggest what you're talking about the deliberations within agency, opposed within the White House, you look the test for deliberative process. And then there's very flexible hoc balancing District Court. You figure out what the test test applied. MS. HARTNETT: think that you're right. There not lot case law this point. Because, again, there's just few cases that have had the executive and the Congress going, you know, head-to-head the Court this question. Senate Select the one that has kind actually reached decision. You have other materials issue with ATT. That was national security information, and you have couple other cases that implicated different information. guess point that the extent this constitutionally based executive privilege, not common law assertion. And the reason why the Court THE COURT: Well, don't all the cases --I don't think they far the committee says rule out any constitutional basis for the deliberative process privilege. But don't they say that it's weaker? Don't they quote Law Review articles that say it's not the same, and say, well, we're not going that far, but this has been said. mean, don't they suggest that there are tiers here? T-i-e-r-s. MS. HARTNETT: Yes. Both probably. And think that Nixon really instructive here, Your Honor, because that was about tapes and about the presidential communications. But the principle that was recognized that case the Supreme Court was about those who expect public dissemination their remarks may well temper candor. It's the typical deliberative process rationale. And don't think not only has not been ruled out that deliberative process equally weighty component executive privilege presidential communications when it's being asserted against Congress for all the separation power's reasons tried describe. think that that case actually supports the assertion here. And again, Nixon itself had footnote distinguishing the Congressional context. Not -remember, both Nixon and --you have the actual -in Espy you have the information being subject some disclosure. And think the point there being both cases that the criminal process need one where you may able allow the disclosure that wouldn't actually attach congressional dispute with the executive. think that --again, you can't --you don't want overread the cases, and appreciate that, but the other hand think gleaned from those cases that the point that have stronger basis for withholding when are trying meet our political branch coequal counterpart. And, again, particularly here the context them trying figure out how are responding what they are trying figure out, which becomes even one step removed. mean, that really would start compromise our ability function independently and feel like have separate existence and one that allows meet them equal branch. THE COURT: Well, we're going apply the privilege, we've talked about the deliberative element. The other element that the documents predecisional. What the decision that these documents preceded? MS. HARTNETT: think you --the discussion earlier kind suggested that there some restriction policy decision. don't think that's supported the case law. It's certainly not the scope the privilege that described here. Your Honor noted, there would many decisions made throughout the entire process figuring out how respond congressional oversight, including what witness send up, you know, how write letter, you know, various --you know, any --any number decisions come throughout department's response congressional oversight. And certainly those decisions and documents preceding those decisions would covered the assertion the privilege. And then more broadly, and agree that it's more categorical sense the work file, but it's each the pieces, you take them out may not themselves reveal deliberation. Although, also pointed out, some them that may seem innocuous would. For example, how long did take someone open email? That could read receipt. Who the distribution line for certain letter? Some things that may seem less deliberative nature, but that would give overall picture the committee how conducted ourselves and how decided strategize and organize ourselves response oversight, again, not particularly tied particular situation but the aggregate would reveal and chill our deliberative process were they have ready access that. And that's THE COURT: Are different world? Haven't you agreed that how you responded their oversight this case legitimate subject inquiry for them? MS. HARTNETT: think what --we certainly said was that the misstatement that was made the December letter raised legitimate concern for them --and don't want --I don't want beyond what was said the December letter, but --yes, that noted that because had had inaccurate letter that believed that was appropriate provide them with documents explaining that letter. THE COURT: Right. And it's significant inaccuracy made very high official about very important matter. MS. HARTNETT: Yes. THE COURT: everybody agrees that they have the right say how did that happen. And you agree that they have the right say how did that happen, how --but then you say everything after that happened going our work file, how can they their job that you just said was legitimate job that they are allowed do? MS. HARTNETT: Your Honor, think think they've done their job. Again, we're here before the Court, and the Court now has that under advisement. And the extent --and this does get little bit into the need balancing that Your Honor recognized that would uncomfortable place for the Court when you're THE COURT: But inevitable. MS. HARTNETT: mean, and certainly only once --I mean, Senate Select was the only case where you had Court the end the day actually doing the need balancing the context the two political branches going head head. That was the only one. And there was, not minimize the task that was before the Court there, but that was question whether the second copy the tapes was needed because Congress already had one. And some level, even though, again there institutional question about how the Court balancing those needs makes difference, but there also did not --it would not emmesh the Court potentially the way that this would, which that they say they need more. say that they already have enough satisfy their obstruction investigation. And the extent that they have THE COURT: Were there any post-February materials presented? understood, believe from the letter the President, believe that's where got that. was statement that the President was told that how the facts unfolded and were discovered have been false, even though that was post-February that that's been produced. that correct? MS. HARTNETT: think with respect the post-February documents that have been produced are largely those that are related the report. there are over 300 documents that were produced conjunction with our --the release the report highly unredacted form. And think provide further public explanation and the committee about what happened, and there would post-February documents those. THE COURT: The report refers exhibits that aren't publically available with the report. Did they get the exhibits the report? MS. HARTNETT: produced --I can clarify this needed, but produced 300 pages documents cited the report. they have those. THE COURT: Are those all the exhibits cited the report? Some the exhibits cited? you gave them the report, did they get all the documents the looked reaching his conclusions? MS. HARTNETT: No, they did not get all the documents that the looked at. But what's important that the extent there's some additional need that they --first all, there question whether the need balancing should even before the Court now. And think what would submit --that they haven't really made tried make the Senate Select showing, and that would one way kind resolve this after finding privilege without having get into the need. Another way would make ruling the legal question that was kind the crux what brought here, which was whether the privilege could extend beyond presidential communications, and then send the parties back mediation where have been some extent over the past several months. THE COURT: You can mediation any time you want. You just call chambers and say want back mediation. will order you back mediation. Please that before write opinion. We've got other cases that are ready that would love focus on. But let take you there. Because, think -and haven't decided this case, but think you can tell from questions both sides that I'm pretty confident that the law recognizes deliberative process privilege for intraagency deliberations that form the executive privilege that has some constitutional implications and underpinnings, even they are less compelling than those attached presidential communications. the Attorney General --the President and the Attorney General may, believe, I'm leaning determine that may assert executive privilege over deliberative documents response congressional subpoena. But for that privilege withstand test that's been brought this Court, cannot blanket omnibus this file privilege, but the individual materials have to, fact, meet the elements the privilege. The privilege does not apply box. applies the materials the box. you're right that the privilege exists. He's right that you can't say anything from February thereafter and that's all, Judge, don't have anymore. must demonstrated that the individual documents contain deliberative matter. That has determined before balancing, but determine that they are --that any them are privileged, because you've made the showing that think you have make, that doesn't mean they win. It's qualified privilege, and then there's balancing test that needs applied. think probably the Espy test and not the Senate Select committee test, but there's balancing any event that has applied. that's what think, that you're right that some documents are privileged, that the committee right that this assertion privilege inadequate shield every single post-February document, that something further needs done. I'm asking you the same question asked him. What does opinion look like? saying you lose, summary judgment for you, summary judgment for you, and then give you time let know you want mediate the next step, presumably the next step would this case still pending before me, they are asking for the documents. you're asserting privilege, you need give --you need substantiate that least categories documents, not every single page. There would some further showing you need make me. that what need next? MS. HARTNETT: Your Honor, guess, may take one more run the congressional response work product portion because what you just described --because think you're describing more limited ruling about the privilege, and light some the other recent investigations and attempts get this material, think that that ruling --it would important least recognize the availability the privilege for broader set documents. But don't want --I don't think that was your exact question. THE COURT: Okay. But what you've told your authority for that that you've done before and there's actual case law that says there's something even broader under the executive privilege than the deliberative process privilege. MS. HARTNETT: Well THE COURT: mean, there may more and greater constitutional dimension the deliberative process privilege, you've got coequal branch the other side. But that doesn't mean it's different documents are privileged. That just might mean you balance differently, does


text:
Coverings — The Ultimate Tile + Stone Experience — has invited Michael P Johnson, Michael P Johnson Design Studio and Lira Luis, AIA, RIBA, LEED AP BD+C, ALLL to be speakers at its annual conference and exposition coming to Orlando, Florida, April 17-20, 2012. Michael and Lira's session entitled Tile: From Decorative to Sustainable will address ways to achieve a sustainable building by using tile beyond the decorative.
About Michael P. Johnson
Modern art is modern because it is critical. Michael's deep care for a solid, modern, ethical architecture is rooted in and draws from his ongoing care for the education of an architect. It may be that Michael's sophistication emerges from his ability to fathom the notion of educating an architect both on the macro scale of an overarching issue in the discipline, and on the micro scale of mentoring students. In other words, he is as good at addressing large issues of architectural education as clearly as he is able to help a beginning student navigate the way into the world of architecture. His intellectual dexterity in education stems from his dexterity in design, where he is not only clear but exceedingly specific about design details and material assemblies for the purpose of achieving a resolute whole moment of architecture. As such, when he mentors a student about something that in its context can be mistaken as inconsequential, Michael is fully aware of the role that small moments will play in the total development of that student. This palindromic understanding can just as easily start from a reference to the ethos of an architect, but it will fast become convincingly specific of the effect it has on a detail between two materials that troubles a student he mentors. Michael has build a formidable list of buildings, received numerous awards, lectured extensively in the United States and abroad, and his worked has been published in magazines and books.
About Lira Luis AIA, RIBA, LEED AP BD+C
Lira Luis is a global American architect specializing in organic architecture. She graduated with a Master of Architecture degree from Frank Lloyd Wright's Taliesin and a Bachelor of Science degree in Architecture, Cum Laude, from the University of Santo Tomas. She holds multiple licenses in Asia, North America, and a Chartered Architect designation in Continental Europe. She has designed an impressive army of diverse and socially-relevant building typographies in Asian and US markets that included the Fortune 100 companies in the US. A multi-awarded architect, she is named 2012 Top 20 Under 40 by ENR. She was National Geographic and The Aspen Institute's Environment Forum Scholar, the American Institute of Architects' AIA Athena Young Professional Award recipient, Tile of Spain's Reign In Spain competition winner, i4Design Magazine's 2011 Suite 16 Top Picks, and the 2011 AIA Knowledge Scholar on Practice Management. Award-winning architect and design correspondent, Lira contributes articles as a resident blogger in Chicago Tribune's ChicagoNow and one of Benjamin Moore's Expert Architects. She has been featured several times in the media in recent years, including interviews in Mashable.com, Greensource magazine, Discovery Channel's Travel Daily, and AZ Family Channel 3. Her work has been published in Architectural Record Magazine, Metropolis Magazine, Wisconsin River Valley Journal, Arizona Republic, Phoenix Magazine, Blueprint Magazine in Malaysia, and broadsheets in the Philippines.
Additional show highlights include:
- More Than 800 Global Exhibitors—In just one location over four action-packed days, you can discover the latest tile and stone trends and source the latest products from over 800 global exhibitors.
- Comprehensive Education Program—Coverings offers the most in-depth tile and stone education program in the Americas, and it's entirely free. With nearly 70 sessions to choose from, you'll walk away with the education you need to succeed in the industry.
- Special Programs and Events—From the Installation Design Showcase and the new Coverings Central, to the PROJECT: Green display and the Art Tile Village, Coverings covers it all.
About Coverings
Coverings is the premier international trade fair and expo dedicated exclusively to showcasing the newest in ceramic tile and natural stone. It has grown to be the largest and most important show of its kind in the U.S., featuring exhibitors from more than 50 countries and attracting thousands of distributors, retailers, fabricators, contractors and specifiers, architectural and design professionals, builders and real estate developers, plus the press and journalists who cover this vital and dynamic industry. Coverings is the stage for introducing some of the most innovative tile and stone products in the world. The exposition also serves as a valuable resource for continuing education for all categories of attendees, with informative, accredited seminars and live demonstration sessions conducted throughout the four days and all free of charge. Coverings 2012 is set for April 17-20, at Orange County Convention Center, Orlando, FL. For more information visit www.coverings.com or contact National Trade Productions, Coverings Show Management, 703-683-8500.
Michael P Johnson Design Studio: www.mpjstudio.com
ALLL (Atelier Lira Luis, LLC): www.liraluis.com
Filed under: AEC, Architects, Architecture & Design, Architecture and Planning, Design, Environment, Events, Interior Design, Natural Stone, Technology, Tile
Tags: Arizona, Cave Creek, Chicago, Coverings, Illinois, Lira Luis, Michael P Johnson, Orlando

subset: commoncrawl