“We invoked the #StateSecrets #privilege over many of the details—of course our officials discussed what should be divulged publicly. This just proves they are responsible public servants putting the safety of the American people first. The leakers of these emails, on the other hand, clearly do not care about public safety,” McLaughlin said.
Cooper: Only have ~30 docs that are relevant vs 500 that have been withheld based in part on #DeliberativeProcess #privilege
The final factor is harm to the govt, which I think is for the government to show. They haven't filed affidavits or explained why disclosure would harm process, etc
That's it from Cooper on deliberative process.
Guynn up to respond.
After Cooper argues that #DeliberativeProcess #privilege doesn't apply given #misconduct by the govt, he turns to another exception: the "compelling need" exception.
That squarely overrides the invocation of the privilege here, he tells Judge #Xinis.
Cooper: This discovery is relevant & important. Govt hasn't pointed to alternative sources of info. There's been no substance produced of information that's key & critical here.
Guynn: Think would need to brief that. But I don't want to concede that #intent is at issue.
#Xinis asks attorney for #KilmarAbregoGarcia to come up & address the "government misconduct" exception to #DeliberativeProcess #privilege.
[Because the privilege is not absolute & can be overcome by a showing of govt #misconduct]
Up for Abrego Garcia this time is Jonathan Cooper
Cooper: From the beginning this has been a case about govt misconduct
#Xinis: Intent to facilitate, intent to comply w/my order.
Guynn: When you refer to #intent, what are you referring to?
Xinis: Can give you cases I've been thinking about. There's a proposition that #DeliberativeProcess #privilege doesn't really apply when intent is at issue
Gives hypo: re discrimination claim by fired employee. if decision making is privileged, can never get to the issue of wrongful termination.
Guynn: That's why there are so many privileged documents here that's why hard to ID document custodians, etc.
#Xinis: Almost impossible to determine from the log on what basis you're claiming attorney client privilege. Eg, if you have 18 people CC'ed on an email. without more info, I can't assess.
I don't believe the #DeliberativeProcess #privilege is as broad in this case because the govt's intent is at issue.
Rossman: If I gave your honor what I have of meaningful #discovery, it'd be nothing
#Xinis announces that she wants to move on to discussion of the #DeliberativeProcess #privilege. Wants to talk about the #law on that, then move the hearing under seal to discuss further.
Guynn is up first to discuss.
Rossman: Knowing the stakes, we ask them to be kept on as short a leash as possible.
Now turns to #StateSecrets & what govt must show to properly invoke the #privilege.
Rossman: It was interesting to me that they aren't taking a categorical view that all steps they've taken to facilitate return are subject to state secrets.
#DOJ / Guynn continues: Not sure where we left off...I think one of the #StateSecrets factors.
Guynn: There are ZERO documents withheld based ONLY on state secrets #privilege. There are 43 based on deliberative process...
#Xinis: What am I looking at then? I see one of those privileges invoked 1400 times...
#DOJ: One reason why is because of how the plaintiffs set this up. They want categorical piercing of #privilege. They don't point to specific documents.
#Xinis: There's 3 questions. So why are you saying categorial?
Guynn: [Long pause.]
We're not saying ANY answer to those questions are state secrets...Guynn tries to go off on tangent about privilege log, but Xinis interjects.
Xinis: Can we just stay w/the affidavit?
#Xinis: So I need to understand that the executive believes there's a danger to diplomatic relations. But I need to know HOW it does. And I don't have that here.
#DOJ: You have the #Rubio declaration, which was modeled on successful declarations in other cases
Xinis: Walk me through it. Tell me why Rubio declaration satisfies.
Guynn: Cites 4th Circuit case. Court explained that gov needs to provide "formal" claim from high-ranking ofcl as to the invocation of #privilege.