1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 3 - - - - - - - - - - - - - - - x AMERICAN OVERSIGHT, CA No: 4 1:19-cv-02934-CRC Plaintiff, Washington, D.C. Wednesday, October 23, 2019 1:07 p.m. 5 vs. 6 U.S. DEPARTMENT OF STATE, 7 8 Defendant. - - - - - - - - - - - - - - - x 9 ____________________________________________________________ 10 12 TRANSCRIPT OF MOTION HEARING HELD BEFORE THE HONORABLE CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE ____________________________________________________________ APPEARANCES: 13 For the Plaintiff: DANIEL ALEXANDER MCGRATH, ESQ. SARA KAISER CREIGHTON, ESQ. AMERICAN OVERSIGHT 1030 15th Street, NW, Suite B255 Washington, DC 20005 (202) 897-4213 daniel.mcgrath@americanoversight.org For the Defendant: JOSHUA CHARLES ABBUHL, ESQ. ELIZABETH SHAPIRO, ESQ. U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW Washington, DC 20005 (202) 616-8366 joshua.abbuhl@usdoj.gov 11 14 15 16 17 18 19 20 21 22 23 Court Reporter: Lisa A. Moreira, RDR, CRR Official Court Reporter U.S. Courthouse, Room 6718 333 Constitution Avenue, NW Washington, DC 20001 202-354-3187 24 25 Proceedings recorded by mechanical stenography; transcript produced by computer-aided transcription 2 1 2 P R O C E E D I N G S THE COURTROOM DEPUTY: Your Honor, we're on the 3 record for Civil Case 19-2934, American Oversight vs. 4 Department of State. 5 6 7 Counsel, if you can please approach the lectern and identify yourselves for the record. MR. McGRATH: Good afternoon, Your Honor; I'm 8 Daniel McGrath here for American Oversight, and I'm joined 9 by Sara Creighton and John Bies. 10 THE COURT: 11 MR. ABBUHL: Mr. McGrath. Everyone, welcome. Good afternoon, Your Honor; my name 12 is Joshua Abbuhl, and with me is Elizabeth Shapiro and 13 Elizabeth Loftus. 14 THE COURT: Mr. Abbuhl, how are you? 15 MR. ABBUHL: 16 THE COURT: 17 Good. 18 Mr. Abbuhl, before we get to the motion, I saw Thank you. How's everyone? 19 that you filed a sur-reply this morning updating the Court 20 on the progress of the search. 21 the same page as to what's been done and the results of the 22 preliminary search, could you explain a little more 23 precisely the search efforts to date. 24 MR. ABBUHL: 25 THE COURT: Just so that we're all on Yes, Your Honor. And specifically, I don't understand 3 1 the distinction between a repository and a component. 2 MR. ABBUHL: Sure, Your Honor. 3 So starting with that question, both are locations 4 where we will search for documents. 5 speaking, will be, for example, the Office of Legal Adviser 6 systems or the Bureau of Near Eastern Affairs where a 7 repository is something that can be searched centrally from 8 a particular office to task out searches to the components. 9 THE COURT: Okay. A component, generally As I understand the two 10 requests, sort of the thrust of both are communications 11 between or among -- or among or with certain State 12 Department personnel and Mr. Giuliani, Ms. Toensing, 13 Mr. diGenova, and wouldn't those communications, to the 14 extent, at least, they're reflected in emails, be a central 15 email system? 16 MR. ABBUHL: I believe, Your Honor, that many of 17 the emails are automatically drawn into a central system but 18 only, I believe, for either certain individuals or certain 19 components, and I don't know the exact breakdown yet. 20 But what I can say is that, as we've laid out, 21 we've done, you know, three of I think seven components for 22 the first request and four -- or, excuse me -- there are 11 23 requests of which some proportion of -- 11 components that 24 are being searched in the second request, and we have 25 already completed initial searches of some number of those. 4 1 THE COURT: But I guess my question is that when 2 you say three of seven or four of 11 components have been 3 searched, does there need to be a separate email search of 4 each component, or can emails in the State Department be 5 searched centrally? 6 been run for custodians listed in the request? 7 And has that -- have those searches MR. ABBUHL: I believe that email searches have 8 been run for some but not all -- I would want to double- 9 check that, Your Honor -- 10 THE COURT: 11 MR. ABBUHL: Okay. -- but I believe that some, 12 essentially, proportion of what you were discussing has been 13 run. 14 cases that -- excuse me, the documents that can be searched 15 from a local server just because that's obviously the 16 easiest to do rather than asking another person to gather 17 the documents and send them back. And I do think that we've begun with the more -- the 18 THE COURT: Okay. 19 Mr. McGrath, it's your motion. 20 MR. McGRATH: 21 American Oversight here is seeking records of Thank you, Your Honor. 22 extraordinary public importance. These records are of such 23 public importance that they concern matters that have led 24 the House of Representatives to initiate an impeachment 25 inquiry for one of the handful of times in our nation's 5 1 history. 2 they seek -- American Oversight's first request seeks 3 communications with Rudy Giuliani and other reported 4 personal attorneys to the President. 5 a central figure in reports about the alleged efforts to 6 pressure the Ukrainian government to investigate a political 7 opponent of the President. 8 also seeks communications about any other effort to pressure 9 the Ukrainian government to initiate such an investigation. 10 In particular, as Your Honor has acknowledged, Mr. Giuliani has been American Oversight's request And American Oversight's second request centers 11 around former Ambassador Yovanovitch, who has testified in 12 front of Congress and -- as a part of the impeachment 13 inquiry and was recalled around the time that these reported 14 efforts began. 15 So these records concern a matter of immense 16 public importance, and American Oversight would disseminate 17 them rapidly to the public to inform the public about the 18 merits of potential impeachment here or the merits of the 19 potential decision to remove the President from office, 20 matters that are -- it would be hard to imagine a matter 21 that would be more central to fulfilling the purpose of the 22 FOIA to inform the citizenry so that they can petition their 23 elected representatives to make important decisions in an 24 informed manner. 25 Plaintiff believes that we are nearly certain 6 1 particular -- we are nearly certain to succeed on the merits 2 of this case as State has not contested that American 3 Oversight lawfully submitted these FOIA requests a little 4 over five months ago, and American Oversight is almost 5 undoubtedly entitled to determinations on those requests and 6 production of nonexempt responsive records. 7 8 9 And as I was mentioning -- to what I was mentioning earlier -THE COURT: Now, the government obviously frames 10 the relief sought differently than you've just described. 11 The government frames it as seeking a determination that it 12 has not processed your expedited request as soon as is 13 practicable -- 14 MR. McGRATH: 15 THE COURT: Uh-huh. -- and that there is no evidence in 16 the record that the department has failed to live up to that 17 obligation because the request is still recent and the 18 department is, I'm sure they will tell me, exercising due 19 diligence to respond to the request consistent with its 20 other FOIA obligations and other requests in matters that 21 other plaintiffs view as urgent as well, including, at 22 least -- and I'll ask the government about this -- you know, 23 numerous other Ukraine-related requests. 24 25 Why is that not the correct way to frame the relief that you're seeking? 7 1 MR. McGRATH: Well, Your Honor, we have seen 2 regularly and the case law shows that after the statutory 3 limits imposed by the FOIA have passed, plaintiffs are 4 entitled to seek judicial supervision, and really the 5 question of what the date certain that Your Honor orders 6 production by is really a question to our minds of what 7 remedy is appropriate here. 8 9 It's absolutely routine in FOIA cases, where the parties cannot come to an agreement about a production 10 schedule, for the Court to issue an order for production. 11 And I think we have requested production by November 15th or 12 such date as Your Honor believes is certain, but to the 13 extent, also, that practicability concerns impact Your 14 Honor's decision, we have submitted these requests well over 15 five months ago. 16 available publicly of other requesters, many of them 17 submitted requests for very similar subject matter only in 18 late September of this year -- 19 THE COURT: 20 21 22 23 From our surveying of the public records You think you're first in the Ukraine line, in other words? MR. McGRATH: From what we've been able to see based on publicly available information. But also we think that because we have requested 24 records that are very central to the impeachment inquiry, 25 that other requesters are likely seeking many of the same 8 1 records, and the State Department would be able to make 2 those readily available to other requesters. 3 For example, communications between top State 4 Department officials and Rudy Giuliani or concerning any 5 effort to impact -- to encourage Ukraine to investigate a 6 political opponent of the President, we think that those 7 records are very likely to be responsive to many of the 8 other Ukraine requesters. 9 10 THE COURT: Now, you're obviously here on a PI request. 11 MR. McGRATH: 12 THE COURT: Uh-huh. There's been a lot of ink spilled on 13 the relationship between the preliminary injunction 14 requirements and FOIA cases. 15 Numerous other judges have. 16 those cases, what's occurred to me is that, you know, are we 17 just talking about sort of semantics here, right? 18 19 I've written on that. As I have gone back and read If the department had answered -- and I don't know when its answer deadline is. 20 MR. McGRATH: October 31st, I believe, Your Honor. 21 THE COURT: 22 -- or if I had ordered the department to answer by Okay, so next week. 23 today, and we were here on the merits, I clearly would have 24 supervisory authority to, you know, work with the parties on 25 an appropriate production schedule. I do that all the time. 9 1 2 Judges in this court do it all the time. Does it really matter what we call it? Is the 3 relief that you're seeking available -- would the same 4 relief be available on the merits? 5 MR. McGRATH: 6 THE COURT: So I think there's two -- And why does the Court need to grapple 7 with, you know, how to frame the violation in terms of 8 likelihood of success on the merits for purposes of a 9 preliminary injunction when I could exercise the same 10 11 oversight responsibility in the normal course? MR. McGRATH: Well, I think the overriding concern 12 in this particular case and why plaintiff has filed a 13 preliminary injunction motion is that, with the rapidly 14 proceeding impeachment inquiry, the chance of irreparable 15 harm in this case, if we wait for the Court to exercise 16 supervision after the defendant's -- 17 18 THE COURT: But I could take those same factors into account on the merits, correct? 19 MR. McGRATH: 20 THE COURT: You could take the factor of...? Of balancing the equities, how 21 important it is for the documents to be disclosed consistent 22 with the purposes of FOIA. 23 MR. McGRATH: Yes, because Your Honor can exercise 24 the Court's equitable powers in that case as well. But here 25 we are seeking the preliminary injunction because of the 10 1 great risk of irreparable harm if we do not have the Court's 2 supervision. 3 We also -- to the extent that defendant has 4 responded in both its sur-reply and in its opposition 5 motion, it has not indicated that it intends to challenge 6 the fact that American Oversight has submitted lawful FOIA 7 requests and has indicated that it is undertaking search 8 efforts. 9 10 THE COURT: Okay. Let's talk about irreparable harm. 11 The government makes the argument that many, if 12 not most, of the materials that you've requested would be 13 subject to valid exemptions; and, therefore, you're never 14 going to get this stuff anyway so you're not being harmed by 15 the delay attendant to their responding to your request. 16 least for some of the documents I think that's well-taken, 17 right? 18 At If there are classified materials -- for instance, 19 you've asked for diplomatic cables which are typically 20 classified -- why should I order State to take the time to 21 search for materials and then litigate and redact or 22 withhold and litigate the withholdings in the next month 23 when it's not likely you're going to get that stuff anyway? 24 And can we somehow identify materials that would not appear 25 subject to withholdings? 11 1 For instance, you know, correspondence with a 2 third party outside of the department. 3 the government this, but it's not self-evident what 4 exemptions might apply to those sort of materials. 5 know, can we, you know, narrow this request somehow and home 6 in on the stuff that is less likely to be withheld or 7 validly withheld and use the next 30 days a lot more 8 productively to just having State, you know, boil the ocean 9 for materials that are likely to be withheld pursuant to a 10 You know, I'll ask You valid exemption? 11 MR. McGRATH: To Your Honor's question, we 12 believe, in particular, that the first aspect of American 13 Oversight's first request seeks records reflecting 14 communications with Mr. Giuliani and other reported personal 15 attorneys of the President who have no official government 16 position. 17 have requested, just to ensure that we're correct in making 18 this assertion, any financial disclosures that Mr. Giuliani 19 may have with the State Department in case he was a special 20 government employee, for example, and received a response 21 that they did not have any such records. 22 those communications and records reflecting those 23 communications are very unlikely to be subject to 24 significant exemption. 25 We actually -- I believe we, as an organization, We think that And then there are other subsets of records here 12 1 that we think the segregable information will be extremely 2 valuable to the public, particularly in determining whether 3 the right people have been interviewed by Congress and 4 whether Congress has heard from all of the witnesses with 5 information about this matter. 6 first aspect of the first request is most likely to have the 7 most substantive information disclosable. 8 9 THE COURT: But we do believe that that And I take it you have not met and conferred with the department regarding what those 10 categories might or might not be. 11 MR. McGRATH: 12 information from the department. 13 THE COURT: We have not received significant Apart from correspondence with third 14 parties outside the department, are there any other, you 15 know, categories of requested materials that you believe are 16 unlikely to be the subject of a valid withholding? 17 MR. McGRATH: I think that there are two other 18 categories, Your Honor. One, the second aspect of the first 19 request, which is in Paragraph 7 of plaintiff's complaint, 20 seeks records reflecting communications about Mr. Giuliani 21 or about any effort to encourage Ukraine to investigate a 22 political opponent of the President. 23 have identified Secretary Pompeo and Counselor Brechbuhl, 24 both of whom -- Secretary Pompeo has confirmed that he was 25 on President Trump's July 25th call with the president of Within that request we 13 1 Ukraine, and Counselor Brechbuhl was also reportedly on that 2 call. 3 including handwritten notes and summaries of communications, 4 and the President has ordered that the contents of that call 5 be declassified and fully released to the public; and to the 6 extent that those individuals were creating records that 7 reflected the content of that call, it may be subject to 8 public disclosure. 9 We sought records reflecting communications, THE COURT: What's the authority for the 10 proposition that declassification of a transcript waives 11 assertion of any -- you know, the exemption -- what's the -- 12 Exemption 1. 13 MR. McGRATH: 14 THE COURT: Yes, Exemption 1. -- waives Exemption 1 with respect to 15 any communications regarding that declassified document, in 16 this case a transcript? 17 MR. McGRATH: So I think there would still be 18 substantially -- there still could be communications about 19 that call, surrounding that call, that would still be 20 exempt, but to the extent that those notes or summaries of 21 that call reflected the same information that has already 22 been declassified, I don't have the case cite handy but 23 official acknowledgement -- 24 THE COURT: Official acknowledgement, okay. 25 MR. McGRATH: Yes. -- of those particular facts, 14 1 and to the extent that in these impeachment proceedings the 2 administration may -- 3 THE COURT: But if the same facts have been 4 officially acknowledged, then I'm not -- that may undercut 5 your irreparable harm argument. 6 MR. McGRATH: Well, on that particular case that 7 may be true, but it is also possible and there are 8 administration statements that may suggest -- I don't have 9 them handy at this particular moment -- that perhaps the 10 validity of that call -- while not initially challenged when 11 officially acknowledged, the validity of the facts in that 12 call memorandum could be challenged at a later date and 13 substantiating documents that contain the same information 14 could -- 15 16 17 18 19 THE COURT: So correspondence regarding the President's call with the Ukrainian -MR. McGRATH: To the extent that it was summarizing the content that's already been released. There's a third category. We requested, in 20 American Oversight's second request, Ambassador 21 Yovanovitch's -- three items related to Ambassador 22 Yovanovitch. 23 House and the State Department regarding her early recall 24 from Ukraine. 25 the White House to the State Department recalling Ambassador One included communications between the White To the extent that there was a directive from 15 1 Yovanovitch, that she has been recalled is already public, 2 and that would be a final directive that would not be 3 deliberative or predecisional. 4 communication showed who made the decision to recall 5 Ambassador Yovanovitch, that would inform the public in a 6 manner that could -- 7 THE COURT: 8 MR. McGRATH: 9 questioned about this. And to the extent that that Okay. -- explain whether someone should be That may include the content of the 10 decision why that was made, whether that was made for a 11 reason related to the effort to encourage Ukraine to 12 investigate one of the President's opponents. 13 14 THE COURT: So discussions about the reasons for the decision -- 15 MR. McGRATH: 16 THE COURT: 17 MR. McGRATH: 22 Well, whether to do it or not would, but following the decision or reasons that they -- 20 21 -- whether to do it or not, that strikes me as subject to deliberative process privilege. 18 19 And if they follow -- THE COURT: How to implement a decision already made. MR. McGRATH: Yes. And also identifying the 23 individuals involved in conveying that directive, if that 24 directive occurred from the White House to the State 25 Department, would identify individuals who the public could 16 1 under -- better understand whether those individuals should 2 be interviewed or have information relevant to the 3 impeachment inquiry. 4 THE COURT: 5 MR. McGRATH: Okay. Anything else? I would just stress that we also 6 think here that the public interest weighs heavily in favor 7 of disclosure for reasons that overlap with why there will 8 be irreparable harm, and we'd emphasize that since the 9 filing of the instant motion the impeachment inquiry has 10 proceeded at a rapid pace with often more than one witness 11 testifying per day to Congress, and we're relying on the 12 statements of the congressional leaders with power over that 13 inquiry as to the time that we've requested production by. 14 To the extent Your Honor has practicability 15 concerns, we are more than willing to confer with State and 16 narrow, perhaps, to the documents that we think are most 17 likely to be subject to full disclosure or fuller 18 disclosure. 19 THE COURT: On that point, you have identified, I 20 think it is, somewhere in the neighborhood of 18 separate 21 officials with respect to Request 1 and 20 or more with 22 Request 2. 23 consider in your discussions is prioritizing those folks. 24 Who do you really think are most likely to have responsive 25 documents so that the burden on the agency is reduced? I mean, one of the things that you might want to 17 1 MR. McGRATH: Yes, Your Honor. And to that 2 point, at the time we drafted the request we had limited 3 public available -- publicly available information about 4 which officials would be most important to include, but we 5 would -- 6 THE COURT: 7 MR. McGRATH: 8 THE COURT: 9 And just to be clear -Yes. -- the request came significantly before the whistle-blower report and public disclosure of 10 the issue that's now subject -- that's driving the 11 impeachment inquiry; is that correct? 12 MR. McGRATH: Well, the request came about a week 13 after initial reports that were not fully confirmed that the 14 President's personal attorney was going to travel to Ukraine 15 to press the government there to investigate one of the 16 President's political opponents, but there was certainly not 17 fulsome reporting about those efforts at that time, and 18 that's -- but at the same time we made an effort, based on 19 guesswork, to determine the high-ranking officials who were 20 most likely to have responsive communications. 21 I would also -- to the practicability concerns 22 that Your Honor might have and that the State Department has 23 made assertions regarding, we are willing to work to narrow 24 in order to make production practicable, but we also -- it's 25 our understanding, though we have little information from 18 1 State about the hits that it identified in its sur-reply, 2 that because these are matters that have been covered 3 extensively in the news, it is extremely likely, in our 4 experience, that many, many publicly available news clips 5 are generating hits to the extent search terms are being 6 used across electronic records. 7 THE COURT: 8 And you're not looking for news stories. 9 MR. McGRATH: No. And those also, having perhaps 10 been a junior associate reviewing documents, can be marked 11 nonresponsive very, very quickly, and we -- I think we need 12 more information about what the pool of documents look like 13 to understand whether those numbers represent a true burden 14 or not. 15 And we also think that because we requested 16 records reflecting communications here, including 17 handwritten and hard copy documents, that custodial 18 inquiries may be appropriate, and those can be limited to, 19 like, the handful of senior officials who are likely to have 20 such documents, but we're not clear on whether, in tasking 21 out to these components, such inquiries have been 22 undertaken. 23 THE COURT: Great. 24 MR. McGRATH: 25 THE COURT: Thank you. Thank you, Your Honor. Mr. Abbuhl, how are you? 19 1 MR. ABBUHL: I'm good, Your Honor. How are you? 2 THE COURT: 3 So do you agree with me that it's more a matter of Good. 4 semantics as to whether this is decided on a PI or simply 5 decided based on a production schedule that the Court could 6 order in the normal course? 7 MR. ABBUHL: I think it's -- to the extent that 8 the end result is the same, yes, it's a matter of semantics. 9 We do think, as we laid out in our briefs, that the 10 preliminary injunction factors are not met, but at the end 11 of the day I think Your Honor is generally correct. 12 And I would also like to point out, Your Honor, 13 that we, of course, agree with many of the things that the 14 State Department said -- or, excuse me, that American 15 Oversight said. 16 17 THE COURT: I would expect for you to agree with your client. 18 MR. ABBUHL: I do agree with everything, in fact, 19 that the State Department said, but I would also say that 20 the State Department agrees with American Oversight to the 21 extent that this matter is, of course, of important public 22 interest. 23 granted expedited processing. 24 statutory definition of an urgent need to disseminate the 25 information, and we're moving very expeditiously to do so, We recognize that. We recognized that when we We realized and met the 20 1 including doing all these searches since last week to get 2 you this information for the sur-reply. 3 THE COURT: 4 MR. ABBUHL: 5 THE COURT: 6 9 But -- I would also -- I'm sorry. -- State has had the request for five months though. 7 8 Right. MR. ABBUHL: You're correct, Your Honor, that the THE COURT: Is that a longer-than-average time for request -- 10 State to have done, you know, the preliminary search that 11 resulted in these reported results, which I've got to say 12 are not terribly detailed, right? 13 MR. ABBUHL: You're right that they're not 14 detailed, Your Honor, but I think we do have as much 15 information as we can give you at this moment; and we're 16 certainly proceeding, and we'll get you as much information 17 as possible. 18 As to the timing, I think it's important to note 19 that although the request came in five-ish months ago, that 20 the request for expedition was only a matter of weeks, and 21 as we laid out, you know, getting into the expedited 22 process, that's, in fact, one of the grounds that American 23 Oversight moved on -- 24 THE COURT: 25 MR. ABBUHL: Fair enough. Fair enough. In the general context of this case 21 1 as well, Your Honor, I think it's important to note, in 2 light of the extreme amount of interest in these documents 3 and similar documents, that the State Department has 4 actually now gotten 60 requests related to Ukraine since May 5 1st. 6 THE COURT: Tell me about that. 7 Oversight's Ukraine request in that queue? 8 first one in? 9 MR. ABBUHL: Where is American Are they the I do not think they're the first to 10 actually get into litigation about Ukraine. 11 were toward the beginning of initial requests. 12 exactly sure where they are and when their request for 13 expedition was granted -- 14 THE COURT: 15 MR. ABBUHL: 16 I'm not Okay. -- but they are not the only ones who are in litigation. 17 18 I do think they THE COURT: Have any other cases been filed in this court; and if so, which judges are handling them? 19 MR. ABBUHL: Yes, Your Honor. I know of at least 20 one that's actually brought by American Oversight against 21 the State Department, and that's before Judge Berman 22 Jackson. 23 24 25 There may be others in this court, but -THE COURT: Do you know how the requests here relate to the requests in that case? MR. ABBUHL: I believe that the requests in the 22 1 case in front of Judge Berman Jackson do involve 2 communications with Mr. Giuliani, but I believe the focus is 3 on Mr. -- or, excuse me, Ambassador Volker, but I believe 4 that there is quite a bit of overlap in that case, and we do 5 think that, certainly for cases involving the Department of 6 State, it would make sense to be in front of the same judge 7 as a matter of efficiency. 8 THE COURT: Do you know which one was filed first? 9 MR. ABBUHL: I believe this one was filed first, 10 11 12 Your Honor, but I would have to confirm that. THE COURT: But the department didn't file a notice of related case? 13 MR. ABBUHL: We are happy -- 14 THE COURT: I'm just asking. 15 MR. ABBUHL: 16 THE COURT: We have not, Your Honor. Okay. Apart from that American 17 Oversight case, any other judges in this district dealing 18 with similar Ukraine requests? 19 MR. ABBUHL: I know that there are at least six 20 Ukraine-related cases in litigation, but as I look down I 21 only have the docket numbers and not the district courts. 22 But I'm happy to provide that information. 23 THE COURT: 24 MR. ABBUHL: 25 THE COURT: Okay. If you could give the Court -- Of course. I mean, obviously State shouldn't be 23 1 responding piecemeal to six different requests that are in 2 the same general time frame -- 3 MR. ABBUHL: 4 THE COURT: We certainly agree, Your Honor. -- or at least there's an argument 5 that could be made that State should not have to respond 6 piecemeal. 7 MR. ABBUHL: 8 And just for the Court's awareness, even last 9 Indeed, Your Honor. night I received another email from a different district -- 10 in a different district but of another -- the Protect 11 Democracy Project informed us they're going to move for 12 preliminary injunction, and I think it's just worth noting 13 that if all 60 requests that have been received by the State 14 Department so far were somehow brought forward on an 15 emergency posture, that really would just not make sense for 16 that emergency posture. 17 THE COURT: Okay. Respond to sort of the 18 practicability concerns that I raised with the plaintiffs. 19 Do you agree that it is unlikely that communications outside 20 the department with a third party who is not some special 21 government employee would not be exempt from disclosure? 22 MR. ABBUHL: With respect, Your Honor, we haven't 23 been able to look at the documents at all, and I really 24 cannot -- 25 THE COURT: I'm not asking about specific 24 1 documents -- 2 MR. ABBUHL: 3 THE COURT: 4 think of an exemption. 5 MR. ABBUHL: Sure. -- but am I wrong that -- I can't Can you? We really can't speculate. I mean, 6 there could be privacy information, but we really just are 7 not in a position to speculate about what exemptions may or 8 may not apply without seeing the documents. 9 10 THE COURT: Well, you see where I'm going. 11 MR. ABBUHL: 12 THE COURT: 13 All right. Yes. You can influence where I'm going or you can choose not to, right? 14 MR. ABBUHL: Your Honor, the department -- because 15 this was brought on an emergency motion, we have not been 16 asked to meet and confer. 17 prioritize any set of documents. 18 know -- 19 THE COURT: We've not been asked to The department does, you Let me come at it the other way. Do 20 you foresee that there are any documents that would almost 21 certainly be withheld based on a valid exemption such that 22 the plaintiffs have not shown irreparable harm from any 23 delay in processing them? 24 25 MR. ABBUHL: As Your Honor pointed out, diplomatic cables are one example of a class of documents that are 25 1 likely to be exempt. 2 THE COURT: 3 MR. ABBUHL: Do any others come to mind? Your Honor, I must emphasize the 4 earliness of this, and I cannot say to the -- I really am 5 not in a place to speculate about these -- the potential 6 exemptions until we look at them, and we wouldn't want to 7 tie ourselves down in that way. 8 9 But we are moving as expeditiously as possible. We've begun ingesting the documents. The search is ongoing, 10 and we recognize the strong interest in getting this out 11 quickly. 12 THE COURT: Okay. So the department takes the 13 position that its obligation, once expedited processing has 14 been granted, is to process the documents as soon as 15 practicable. 16 MR. ABBUHL: 17 THE COURT: That's correct. Now, I just read the Judicial Watch v. 18 DHS case that was before the Circuit earlier this year or 19 late last year, and it takes a somewhat different tack that 20 says the violation is failure to comply with the statutory 21 deadlines and to thereafter produce documents or process 22 documents promptly, which the Circuit categorized as 23 generally being days or a few weeks within that 20- or 30- 24 day determination, all right. 25 position of being obligated simply to do it whenever it's How do you square your 26 1 practicable versus the Circuit's position in that case? 2 MR. ABBUHL: I don't necessarily think there needs 3 to be much daylight between "prompt" and "as soon as 4 practicable," and it will defend inevitably on the actual 5 context of the -- 6 THE COURT: Well, if "as soon as practicable" only 7 triggers when you grant expedited processing, and "prompt" 8 applies in the normal nonexpedited case, wouldn't that 9 suggest that "as soon as practicable" is more quickly than 10 11 "prompt"? MR. ABBUHL: I don't know if I could read it that 12 way, Your Honor. As we pointed out in our briefs, numerous 13 cases have mentioned that the failure to give a 14 determination within the standard strategy time frames is 15 essentially an exhaustion requirement. 16 THE COURT: 17 MR. ABBUHL: 18 THE COURT: Right. But I do agree with Your Honor -And I agreed with you, but the 19 Circuit -- at least the two members of the majority on that 20 panel -- thought differently, correct? 21 MR. ABBUHL: Your Honor, I don't believe that the 22 panel would have said that regardless of the scope of the 23 request and regardless of the resources available to the 24 agency at issue that it would be within a matter of weeks. 25 I mean, it just is an impracticable impossibility. And the 27 1 State Department does have extremely limited resources, and 2 the request here could be voluminous. 3 total extent yet, but we are, again, going as quickly as 4 possible and fully recognize the important public interest 5 here. 6 THE COURT: We don't know the Remind me of what rate the department 7 was ordered to process documents related to former Secretary 8 Clinton's emails. 9 10 MR. ABBUHL: Honor. There were numerous cases, Your I believe that -- 11 THE COURT: 12 MR. ABBUHL: Judge Contreras had the main case. I think that's right, Your Honor, and 13 I think, if memory serves, he -- there was a total universe 14 of documents, and it wasn't a number per month but a 15 percentage of that universe. 16 working out to be in the thousands per month, Your Honor. 17 18 19 THE COURT: But I think it ended up Do you remember how many thousands per month? MR. ABBUHL: I believe it was between 5,000 and 20 10,000, but I do not know. 21 is currently ongoing, is 5,000 per month, but that has 22 resulted in the department having to take five FOIA 23 reviewers off lines from all of the requests. 24 THE COURT: 25 MR. ABBUHL: I know the Khashoggi case, which And who has the Khashoggi case? That's out of the Southern District 28 1 of New York. 2 THE COURT: Can you tell me whether the department 3 has begun to search for documents in response to the various 4 congressional subpoenas? 5 MR. ABBUHL: All I know, Your Honor, is that is 6 being treated differently than the FOIA request, and we 7 fully -- 8 THE COURT: 9 substantial overlap? 10 But you would agree that there's MR. ABBUHL: We think it's a fair characterization 11 to say that the documents requested here are a subset of the 12 documents that are -- of the subpoena. 13 THE COURT: And there's been no commitment to 14 actually produce documents in response to the congressional 15 subpoena; is that correct? 16 MR. ABBUHL: Your Honor, all I know for now is 17 they are being treated separately, though I do have with me 18 Elizabeth Shapiro, who, if you have further questions on the 19 subpoena, I would be happy to let her discuss them more. 20 THE COURT: Ms. Shapiro, anything to add on the 21 subpoena? 22 day, I mean, it's potentially relevant -- if documents that 23 Congress obtains eventually come to light, that is relevant 24 to the plaintiff's irreparable harm argument here. 25 And as I stated on the scheduling call the other MS. SHAPIRO: I understand, Your Honor. There's 29 1 not a lot of information to provide. 2 subpoena process happens on a separate track and is subject 3 to accommodation procedures. 4 application of redactions or anything like that. 5 process between Congress and the State Department. 6 The congressional It's not the same sort of FOIA It's a I think, you know, we would suggest that the Court 7 sort of not take into account what happens on the subpoena 8 front and sort of just assume that the FOIA case stands 9 alone. 10 11 THE COURT: Yes. I'm approaching it more from a practicable perspective. 12 MS. SHAPIRO: 13 THE COURT: Understood. You know, are we going to really 14 search the same email -- custodians' same email systems 15 twice? 16 or may be yes. 17 And what I'm hearing is the answer is probably yes, MS. SHAPIRO: Well, I think the issue is that we 18 just can't assume what happens on that other track, and so 19 it's probably not practical to take into account what 20 happens during the accommodation process. 21 THE COURT: 22 MS. SHAPIRO: 23 THE COURT: Thank you. 24 All right. That's all I have. 25 the plaintiffs? Very well. Thanks. Anything else from 30 1 2 MR. McGRATH: Yes, if I may, Your Honor? There are just a few points that I'd like to address. 3 First, to Your Honor's question about other 4 litigations in this district, American Oversight did file a 5 separate lawsuit for Mr. Volker's communications. 6 similar. 7 did not include that in this lawsuit partly because those 8 requests were filed significantly later, in August and early 9 September, based on public reporting -- They are The requests themselves are worded similarly. 10 THE COURT: 11 MR. McGRATH: We Is --- and also because Ambassador 12 Volker, after leaving the State Department, turned over 13 communications that he had to Congress which were then made 14 public; which there may be other communications there, but 15 perhaps irreparable harm in that case is lessened by his 16 cooperation with Congress in turning over those records. 17 THE COURT: 18 MR. McGRATH: 19 THE COURT: 20 21 Okay. So you didn't relate that case. No. And your view is that it's not related because it's a more limited request and different documents. MR. McGRATH: And he was in a separate office from 22 the custodians that we've listed here and separate 23 components from them. 24 representative for Ukraine negotiations -- 25 THE COURT: He was, I believe, a special Okay. 31 1 2 3 MR. McGRATH: -- and wasn't in any of the offices we've requested here. Also, to the practicability point here, as we 4 pointed out in our briefs, the State Department is a very 5 large department with -- I think we found publicly available 6 information suggesting there were 69,000 employees, and it's 7 plaintiff's position that for a matter of such urgent 8 national concern that a few people being allocated to 9 process these requests rapidly enough to prevent irreparable 10 harm to the public is practicable. 11 And we also -- to the irreparable harm point, 12 based on the representations here and also the publicly 13 available information we have found, it appears as though 14 the administration will refuse to comply with Congress's 15 subpoenas for overlapping documents at issue here, and, as a 16 result, Congress is likely to be unable to, even if it wants 17 to, make those public and allow the public to make informed 18 decisions about how they can lobby their elected 19 representatives in Congress. 20 And further, as opposing counsel mentioned, the 21 accommodations process between the branches may result in 22 documents being turned over, but those documents may be 23 turned over on the condition of confidentiality, and thus 24 Congress may get access to the documents but the public may 25 not get access to the documents. So we think that there's 32 1 clearly a high likelihood of irreparable harm here if these 2 records are not made public very promptly. 3 THE COURT: Okay. As my questions probably 4 suggested, I am generally skeptical of preliminary 5 injunction requests in FOIA cases, and -- but that said, 6 whether I grant the preliminary injunction or simply 7 exercise the Court's oversight authority as I would in any 8 other FOIA case, considering the equities on both sides, I 9 agree with the plaintiffs that these are documents and 10 records of critical importance that will inform, obviously, 11 a rare and important process. 12 together and figure out ways to narrow the request so that 13 the documents that the plaintiffs believe are least likely 14 to be subject to a valid withholding can be searched and 15 processed over the next 30 days and produced over the next 16 30 days. 17 And so I want you all to get And there are several ways that you all can work 18 together to do that, and I will trust that you will do so in 19 good faith. 20 happy to resolve any differences that may come up, but we'll 21 issue an order with some time periods and, you know, some 22 more specific instructions. 23 you know, I think it's important for these documents, to the 24 extent they are subject to FOIA and not subject to any 25 exceptions, be disclosed. And if you need my, you know, involvement, I'm But the bottom line is that, 33 1 I'm also, at the same time, concerned with the 2 intersection between this case and other cases so I think I 3 want a status report that gives me a little better sense of 4 whether State will be prejudiced by compliance with other 5 specific requests in the same time period. 6 I mean, we will craft an appropriate minute order 7 or paper order to give you folks some more guidance, but the 8 bottom line is that either in connection with this case or 9 in conjunction with other cases, we need to get a production 10 completed within the next 30 days so that it can inform the 11 public's knowledge about the ongoing impeachment process, 12 okay? 13 MR. McGRATH: 14 THE COURT: Anything from the government? 15 MR. ABBUHL: Nothing further, Your Honor. 16 THE COURT: 17 18 19 20 21 22 23 24 25 Thank you, Your Honor. Okay. Thank you, folks. Nats. (Whereupon the hearing was concluded at 1:50 p.m.) And let's go 34 1 CERTIFICATE OF OFFICIAL COURT REPORTER 2 3 I, LISA A. MOREIRA, RDR, CRR, do hereby 4 certify that the above and foregoing constitutes a true and 5 accurate transcript of my stenographic notes and is a full, 6 true and complete transcript of the proceedings to the best 7 of my ability. 8 Dated this 24th day of October, 2019. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /s/Lisa A. Moreira, RDR, CRR Official Court Reporter United States Courthouse Room 6718 333 Constitution Avenue, NW Washington, DC 20001