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.

#Xinis: It’s because I take my job really seriously, that I am considering it. But I will not look to another case.

[think she’s implying, others are not so serious?]

#DOJ addresses some arguments made by plaintiff re #StateSecrets.

Guynn: They said that it doesn't apply to foreign affairs, but that's not true. They said only classified docs, but that's not right.

He points to a case that includes language on how to assess invocation of #privilege