OA401: Legal Eagle Sues the Trump Administration!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments, this is episode 401, I'm Thomas, that's Andrew, and you all just heard the new intro, and I can't wait to hear it myself. How is it going, Andrew?

0:01:28 Andrew: I'm shocked that you went with five Transformers quotes, but I'm pleased. That was great. Maybe.

0:01:34 Thomas: Someday, maybe on your birthday, or something.

0:01:37 Andrew: No one ever gets me anything for my birthday.

0:01:39 Thomas: Hey, well, now I have to do it for your birthday.

0:01:41 Andrew: I didn't get you anything for yours. But do randomly send you alcohol, so that should count.

0:01:44 Thomas: Yeah, that's true. Excited, that That's true, I'm excited for today's show, we are having Legal Eagle himself, back on Devin Stone, and uh, this time it's personal, this time he's suing the Trump administration, and I cannot wait to find out all about that. Maybe, um, it's the next step, I mean, we, we did the amicus brief recently, you know, this is just a uh, escalation in terms of getting involved and trying to sue Trump, so uh, this will be a lot of fun, I can't wait. Anything, any announcements, are we good to get straight to the interview? Well,

0:02:18 Andrew: No, I think we're good. Let's get to the interview.

0:02:23 Thomas: And we are joined by Legal Eagle himself, Devin Stone. Devin, how're you doing?

0:02:28 Devin: I am doing fantastic as as Andrew does apparently as well.

0:02:33 Thomas: And apparently,

0:02:34 Andrew: I mean, I mean you've stolen everything else from our show, so you might as well take that as well.

0:02:39 Devin: I'd like to think that I have adversely possessed it.

0:02:42 Thomas: Well, you can tell things are tense also because Devin is represented by counsel, so welcome counsel, Kelly McLennan, how are you doing. Pretty well fine I'm represented by council too mine is Andrew Torrez so let's let's proceed with the hearing

0:02:45 Andrew: Oh, this is going to go great.

0:02:54 Kel: Doing well, how are y'all doing? Well, that means that only he and I can talk, right? Well,

0:03:02 Andrew: Yeah, if yeah, the court reporter will identify themselves for the record, that would be fantastic. No, Devin, we were super excited to have you on to talk about how how Legal Eagle is doing political activism. So sued the Trump administration. Like, why? And how do we get in on this? Well,

0:03:25 Devin: Yeah, I do need to start a GoFundMe page or something, but yeah, Legal Eagle is branching out, no longer just on YouTube, but now IRL with with our very own lawsuit against large portions of the Trump administration. You know, like many people, I think we were all sort of aghast in January and February when John Bolton was supposed to testify with respect to the impeachment proceedings. And then unceremoniously declined and then decided to make what appears to be a cash grab in putting his information that he gleaned as a result of his position as the national security advisor into a book, which is in some form or another being published as we speak.

Week. And it seemed like the sort of thing that would be ripe for a FOIA suit, that the information and the process that went into the pre-publication review may not have been on the up and up. And so some friends and I got together and we filed suits to seek information related to the book itself, The original unredacted portions of the Bolton book, process that went into the pre-publication review that may or may not have removed unclassified or classified information from John Bolton's book, and in general, what process was used and whether there was political machinations with respect to what John Bolten can or cannot now publish.

0:05:09 Devin: So that is the high-level overview of the lawsuit that Legal Eagle has filed.

0:05:16 Andrew: Yeah, so let's unpack that. You did a video on this. We did an episode on Bolton's book. But to sort of summarize kind of the relevant background, it is very common, right? Right. Like you hear Trump and nondisclosure agreements, NDAs, and, you know, we all think to Stormy Daniels. We think to an administration and a person who, prior to taking office, was heavy handed in his use of NDA's to, you know, for what would charitably be described as nefarious purposes. But but I don't even think this is a devil's advocate argument. Right. Like it is it is sort of well established that lots of people work for the government and come out of high level positions and write books.

0:06:09 Andrew: Right. They write the kind of policy wonk. But look, I got Madeleine Albright's book on my shelf. Right. You know, it geeks like me who read books like that, you know, are the typical audience. And it's well-established practice, going back decades, half a century, that you sign on, for example, to be national security advisor, you sign a very detailed nondisclosure agreement that basically says, hey, before I publish my book, because I'm the kind of person that gets access to classified information, I'm agreeing to submit that book for pre-publication review by the agency so that they can make sure that I'm not inadvertently, like, while I'm telling stories, you know, oops, I're revealing top secret classified information.

0:07:04 Andrew: Right. So so within that context, right, it is, I mean, A, agree with that so far and B, did how did John Bolton follow or fail to follow that process?

0:07:16 Devin: Yeah, as you can imagine, there is real tension between the government's need to keep secret information secret and the First Amendment. And often don't necessarily want certain information to reach the public, while often having an informed democracy is, or an informed electorate is necessary for a functioning democracy. So there was a particular Supreme Court case called Snepp in 1980 that held that a pre-publication review process is a narrowly tailored way of dealing with balancing those two particular needs. There are certainly lots of limits associated with that, but one of the ways that the government deals with that particular difference in interest is to require certain government officials to sign non-disclosure agreements and to go through this particular pre-publication review process.

And, you know, I am not an expert in this particular area. And so I defer to my, in this case, actual lawyer, Kel McClanahan, who is, I he would never be so bold as to say, but I think one of the recognized experts in this field that, as it happens, around the time that Bolton was explaining that he may, in fact, be workshopping book. Kel, correct me if I'm wrong, but I think you wrote an open letter saying that he really, really needed pre-publication review counsel

0:08:53 Devin: Because of all of the pitfalls associated with this particular arcane part of First Amendment and national security law.

0:09:03 Kel: Calling it a letter might be a bit too generous, it was a tweet, or rather a tweet thread, but you know, I tagged him, so

0:09:08 Thomas: So you should call it an executive order then I guess and

0:09:13 Kel: To read it. Right, but yeah, back in January, I think January 26th, shortly after this happened, I did this whole, you know, here's what everybody's gonna get wrong about this, I'm just gonna get out in front of that, and say here are some issues and here are some really big issues that are going to come up, and at and John Bolton I respectfully suggest that you hire a pre-publication review specialist because you're going to need a pre-publication review specialist to do this because of all the sort of more art than science things that go into this, because it's really just you a kangaroo court star chamber or whatever analogy you want to use, it is not anything close to a well-defined system with well-defined rules. Oh.

0:09:38 Andrew: Well,

0:10:05 Thomas: Is that under normal circumstances, let alone with the Trump administration, in which there are no rules, it seems like.

0:10:11 Kel: Right, I mean, that the pre-public, the problems with the pre-publication review system, and there are myriad problems with the current system, transcend politics. And back in, the only reason that you see real case law about this back in the 80s with Snepp and another case called Marchetti and cases like that, is that back then the agencies thought they could get away with doing a lot more and sort of really, really strongly pushed the envelope on what they could do, and so they took that to the mat in court.

Now that it's pretty well established that this system exists and that it is judicially approved, at least you on paper, you never see it come up in much litigation anymore, and as a result, agencies get more and more arbitrary as they go along, and the only time that you really see it come up is either there's more of two situations, either when an author like Bolton or a guy named Mark Bismette does, they did here, and just goes ahead and publishes it without the pre-pub review, at which point they get hammered by the court system, or when someone affirmatively challenges it, like goes to court and files a first-minute lawsuit, suit like Tony Shaffer did for the No Easy Day book. And even then, the standard the courts employ is so differential to the agency that basically the agency just has to show we classified it and

0:11:52 Kel: Properly classified it because we properly classify things that we're supposed to classify properly. And the judge says, okay, sounds good to me. That's

0:12:00 Andrew: That's what I wanted to ask about, because it seems to me as a distinct non-expert in this area that we have – it is an obvious inference to draw that the government and executive agencies dealing with national security have used overly broad classifications sort of since time immemorial to try and shield things that are critical, right? Like, and so, you know, the classic example that our lay audience is familiar with is the Pentagon Papers case, right, like this was something that absolutely had no strategic value by the time that it came out, but it made the Kennedy and Johnson administrations look bad, and I guess the Nixon administration by implication for staying there, and we're familiar with it as an example of overreach.

0:12:57 Andrew: And so I guess there's kind of a two-part question there, right? So the first is, if that's our history of executive agencies, you know, connected to national security, being highly aggressive in designation, even pre-Trump, out of a sense of avoiding embarrassment, embarrassment, then how does any information get out from the government? How do these books not just contain 500 pages of blacked out, sorry, we've censored everything?

0:13:32 Devin: Am I, I would say that is part of the basis for this suit, is that, one, we're going after several different categories of documents, which probably is interesting in its own right. But also the purpose of the suit and the FOIA request in general is to aid in transparency, that this shouldn't really be something that is terribly partisan, that indeed the proper procedures were followed, then there's a great reason to rally around the flag and say that John Bolton did something wrong by going forward when he shouldn't have. On the other hand, if there is evidence that the pre-publication review process was abused, then perhaps we We should rally around, to a certain extent, John Bolton and show, you

0:14:26 Andrew: I mean, let's not be crazy here.

0:14:29 Thomas: Rally in another room, I guess. I'm not going to rally around him.

0:14:33 Devin: People contain multitudes. But, you know, things are in the dark, no one benefits. And to steal a phrase from Kel, we're talking about matters of public policy, there's no such thing as too much information. So it is possible that more information will reveal that the government did things correctly. I'm a little skeptical of that for reasons that we should probably discuss, given that in this particular instance, the timeline very suspicious. Circumstances, the government is not likely to reveal information that it doesn't want to reveal, and so it's incumbent upon us to go after that. And so that's one of the things that we hope to accomplish here.

0:14:35 Thomas: Can

0:15:15 Kel: Me last week right after this happened, and asked me, sort of, you know, what are you trying to get at? Why should this work? And I said, a case like this only works when the agency doesn't follow, or the government doesn't following the rules. If they do it properly, then they will be able to withhold the information as properly classified, and we won't get it. Uh, at least as far as like the first count, trying to get the actual information, they, they told him he couldn't publish. The only reason that we should be able to get information that they told him he could not publish in his first manuscript is if they told him he couldn't publish it because it was classified, and it was not classified.

0:15:59 Andrew: I want to return back to Devin's last comment and sort of talk about, you know, the nuts and bolts of what you've requested and what looks suspicious. But I want to follow up on what you just said, right? The way I read Snepp, Snepp not only protects against the disclosure of classified information, but also non-classified information that could nevertheless have intelligence value, right. So that seems to buttress the point that you were making that, you know, in other words, this process leans heavily in favor of the government in ordinary circumstances.

0:16:39 Kel: Something that I just said that sort of, you just sort of identified the issue with, with my statement. The are many issues with my statement. The The thing that's important to know about this particular case is that just because they did not properly classify it doesn't necessarily mean that we would get it, because forget about Snepp, it could be withheld under one of the other FOIA exemptions. Uh, so, but that information in and of itself would, in that case, be probative, because, because the agencies, the government can withhold information that is not classified in certain circumstances. And different agencies have different guidelines for doing that. And no court has ever ruled on whether or not that's allowed, because they've never admitted to doing it once it got to the point of litigation.

0:17:32 Kel: But newsworthy, I would say, point there would be if the agency redacts, and I keep saying the agency, the NFC, there's question about whether or not it's an agency, so I'll just keep saying agency. If the government redacts information from our response that has sort of five redactions on a page, and two of them are redacted and have B1 next to them, and three of them redact and have D3 next to them. Well, B1 is the classified information, and D3 is unclassified information, so we're withheld for some other reason. And And if that happens, that means that when they told John Bolton, you may not print these five things because they're classified, they were lying to him. And that is evidence of shenanigans in the process, and that's what we're trying to get at.

0:18:23 Kel: To say, was the process proper, as opposed to, you know, do we agree that it should have been classified or withheld?

0:18:32 Thomas: I step back and ask some basics and apologies if I should already know this, but is this entirely like, are we just speculating on what might be left out? Do we have reason or information that leads us to believe that lots of stuff was cut from his book? Or is this just, you know, trying to even establish that fact first and foremost?

0:18:33 Kel: No,

0:18:52 Devin: Well, in fact, we can look at the timeline of what happened in this particular case. There are all kinds of pitfalls associated with the pre-publication review process. But from what we know publicly, we know that Bolton attempted to provide his manuscript to the portion of the National Security Council that deals with pre-Publication Review in early February. And he was engaged with a government official named Ellen Knight, and over the course of the next roughly eight weeks, they went back and forth, which you would normally expect from the pre-publication review process, with give and take between Bolton and Miss Knight.

0:19:38 Devin: And by the way, one of the pitfalls that Bolton may have engaged here is that he may have shown his manuscript to his attorney, uh, Chuck Cooper, which, um, under the, this weird procedure may have been a no-no you, you, because it may or may not contain classified information and your, uh, your, your attorney may not be privy to, uh. What's actually in the manuscript, but by, My, which

0:20:02 Kel: Leah, no, no. I'll go out and say that. Publication means dissemination to anybody, even your lawyer.

0:20:08 Thomas: Even your lawyer? Andrew, I'm going to need to take back some of things I sent you. What'd

0:20:11 Kel: We

0:20:14 Andrew: I mean, that is, you know, You the kind of thing you never want to hear as a lawyer. Maybe it would be helpful, Devin, to describe kind of concretely the FOIA request that you made, the things that you requested, and the response that you received.

0:20:32 Devin: I mean, to, to put a pin in the timeline that I was discussing, I think it's interesting that by the end of April, it appears that, that Ellen Knight said John Bolton's book was okay for publication. And then in the beginning of May, political appointee Michael Ellis said, uh, set, came in with zero training on, uh, classification and then said the book was not okay for publication. So there, yeah, correct.

0:20:57 Andrew: We know that from press statements. Is that right?

0:21:00 Kel: Not our complaint, we know that from their complaint against Bolton in their case. So,

0:21:04 Devin: Correct. So, so that's, that's public information, um, and you can imagine with those particular circumstances that there's all kinds of shenanigans, not just in what might have been removed the first time around, but, But given that what Bolton is dealing with in his litigation, where he says that his book in its published form was OK and approved, but there were political reasons why they decided to renege on that particular request. But in terms of our FOIA requests, why don't I turn that over to my attorney who can go over what we have requested and what we think we're actually going to get as a result of those requests.

0:21:47 Kel: There are really four categories of FOIA requests at issue in this case, and I'm gonna leave off number four because it is of zero interest except to the super wonkiest of wonks. So the three requests, the three categories are really the big ones. One is basically, we want information that was in the first manuscript that you redacted. Or at the time that you were going to redact. When we first filed these requests, we didn't know for sure what had been done, because we only knew that the process was underway, and that there was something going on, and we didn't really, weren't privy to as much information as we have now. So we said, you know, what information are you prohibiting or attempting to prohibit him from publishing from the first manuscript?

0:22:38 Kel: And that's really to get at sort of the substantive thing of, as a case study, what information out there it line up? What we were talking about earlier, that if you told him it was classified, are you going to tell this judge that is classified since you have to justify each redaction specifically in FOIA. The second was more of a process issue where we wanted records about what was done. Not the actual documents, but, you know, we sent a request to NSC, to the Records Access and Information Security Management Directorate, which is Ellen Knight's office. We sent requests to CIA and DOD and DOJ and State Department, all for records about, you know, any records you have about the NSC, Ms.

0:23:32 Kel: Knight's office, consulting with you, which is normally done, to say, you know, that's informative about the process. If they withheld lots of information that was allegedly CIA information and didn't bother to check with CIA, that's a, that's not really the process. That was sort of the second category. And the third category was more big picture, fundamental, what process were they even, because there is no government-wide rule for how to do pre-pub review. Each agency has its own rules. Some of them follow their own rules, some of them don't, but they're all over the map.

0:24:17 Kel: Ms. Knight's office, its own admission, does not even have rules. That's something they said in their complaint against Bolton. So, we were going for what are the guidelines, the manuals, the provisions, the the templates you know anything that is used by somebody in this NSC office to tell them how to do pre-pub review because through a lawsuit by the the Knight Foundation not Knight Foundation Knight Institute First Amendment Center we have the guidelines and rules that almost all the other intelligence community components use but we don't have one for the NSC and so we went to the NSC for what are your rules?

0:24:58 Andrew: So you don't have to do that, but if you did, you know,

0:25:06 Kel: We went to the George W.

0:25:07 Andrew: If you didn't do it, but

0:25:08 Kel: Bush Presidential Library for what were the NSCs rules then?

0:25:08 Andrew: You did it, but you got it, and you got the word, and then you did the

0:25:14 Kel: We can't go to the Obama Library because there's a Presidential Records Act thing. You can't until five years after he leaves office.

0:25:14 Andrew: Thing that you got out of it, and you did what to do, and that's what when you do that.

0:25:20 Kel: We went the Office of Legal Counsel for what opinions have you written about pre-public view, with the idea that maybe one of these opinions over the last however many years might have been about the NSE or might have been rules in general or might have been important in our analysis for what happened and whether or not it was allowed. And between those, we're attempting to paint a picture of, from sort of general to specific, what rules do they do in the White House, how do they doing this case, and as a case study specifically.

0:25:21 Andrew: And so you've got to work on that.

0:26:01 Kel: What information did they withhold hold under it and

0:26:05 Andrew: Well, Well, that sounds really comprehensive. So what kind of response did you get?

0:26:10 Kel: The only responses we got were a bunch of agencies that denied our request for expedited processing, which is this thing that you do in FOIA when you say this is really newsworthy and you should put it at the top of the queue. And the NSC office just refused to process it completely because, because there is some, say, bad case law out there, but that's just my opinion, that the NSC writ large is not subject to FOIA. And we sort of hit that face on and said, we're not even saying you are. We're not going to fight that fight today. We're going to say that even by your analysis for why the NSP isn't subject to FOIA, this office is. So they're the only ones who have really just come out and said no. Everybody else has said, great, we've received your request, we'll get to it when we get to it. It

0:27:02 Devin: To piggyback On what Kel was saying, in termsof these three different categories of documents that we requested and were stonewalled on, I think that that's probably a good place to talk about what we expect to happen and what we think are reasonable outcomes in this particular case. Because with respect to the portions of Bolton's book that were removed in their entirety at the very beginning, it's important to note that under FOIA, and Kel hinted this, the response that you have to provide when you are redacting things is a lot more onerous on the government, at least, than when you're engaged in the pre-publication review process. And simply knowing more specificity as to why they are redacting things would be helpful.

If if the NSC continues to stonewall us, we've sought documents from other agencies that are likely to have on the pre-pub review process, and it's entirely possible that there's communications going back and forth that may not be on the up and up, that might indicate political reasons rather than confidential reasons and national security reasons as to why certain portions were removed or prevented from publication, and just simply getting more of a window into that thought process, I think will be very important. And in terms of what we might be able to accomplish, I think a great example of someone that's doing something similar and doing a really great job is Jason Leopold at BuzzFeed, who made FOIA requests to the unredacted Mueller report.

0:28:49 Andrew: Right.

0:28:49 Devin: And it appeared that the Department of Justice had redacted quite a lot of information for various reasons, and as a result of those FOIA requests and the litigation that they had to go through, some of that information was unredacted on the basis that it was never classified in the first place. And with respect to a lot of the other information, there was more specificity provided as to why it was redacted in the 1st place. And in fact, Quinta Jurecic at Lawfare just came out with basically a side-by-side comparison of the two different versions of the Mueller report to see what was initially released and what was released as a result of BuzzFeed's FOIA litigation.

0:29:35 Devin: And there are large swaths of information that we would not have been privy to had it not been for the hard work of Jason Leopold and BuzzFeed. So in terms of success, it's not like Legal Eagle is going to go through and be telling a judge that this particular information is unclassified. But by the same token, under Snepp courts can't necessarily take the word of the government entity that did the redacting in the first place, that they have an obligation to go through this information and often in an in-camera review, meaning that the judge will actually look at the particular information and may have to make a determination.

0:30:23 Devin: So that is one of the checks on this process may happen here. And

0:30:32 Andrew: So, yeah, let's let's drill down on that a little bit, right? Because what I hear you saying is that the way in which we protect the public against a government and executive agencies that tend to overreach when it comes to calling information classified or essential to national security interests is that there is some kind of independent review, view, right? And whether that is done by a judge in camera, where only the judge gets to look at it, or, you know, comes out through FOIA requests, that gives you some kind of a check. What's the standard for that, right, like what analysis is the court going to bring to bear to decide, you now, whether they're going to second guess a determination and how much much deference do they show to the agency?

0:31:23 Kel: Depends on the venue. Maybe not venue. It depends upon the nature of the case. For instance, in a pre-pub review case or even in a breach of contract pre-bub review case like John Bolton's, they will use a different standard than they would use in a FOIA case. And that's part of the reason that FOIA is so valuable, and part of the reason we're doing this, is that in one of those cases, as the court said in a case called McGehee, you know, the judge is not allowed to just take take a a conclusory conclusory statement statement from from the the judge.

0:31:57 Kel: CIA that something was classified because we said so, and they have to look at it, but you know know, they have to look at it extremely differentially, and whereas in a FOIA case there is a large amount of deference called substantial weight that they have to give to things like classification decisions, but there's a more of a burden of proof where there there is this, the court does a de novo review, and the agency has to provide this, called a Vaughn Index, in fact, after a case called Vaughan v. Rosen, that was the first one that established it, that goes through each redaction, and so for each page and says more information about that redaction and provides no factual information, not just conclusory assertions, that will support their argument that is properly classified or properly withheld under some other exemption, and that information is often something that you would never see outside of FOIA because they don't have to provide it in a pre-pub review case.

0:33:14 Kel: There's generally no discovery in a prepub review case because the only question is, did you sign a contract and did you breach it? They don't get to whether or not it was properly classified in many cases, so you don't get discovery. And you don't get discovery in FOIA either, but the court decided a long time ago that because you don't get discovery, the agency has to say something more than we withheld it because it was properly withheld, and that's where all the information comes in, and I've had several cases where we got no documents, but the information that we got in the agency declaration and in the Vaughn index was significantly more than we otherwise had, and that was enough for the reporter or academic to go and report about it as new information. So sometimes even losing you can win. It's

0:34:12 Devin: You can imagine that in this particular circumstance, where you have the back and forth between John Bolton and Ellen Knight, and then suddenly in May, the political appointee Michael Ellis comes in, that if information is revealed as to who was doing these redactions, that information alone could go a long way towards figuring out what happened and whether everything was on the up and up in this particular situation.

0:34:12 Andrew: Yeah.

0:34:37 Andrew: So let me make sure that I understand. First, I want to ask as a clarifying question, it sounds like in my head, I'm analogizing this Vaughn index to like a privilege log. Is that a fair analogy in my hand? Okay. So again, Again, you know, for our non-lawyer listeners, when in ordinary civil litigation, when one party declines to produce information on the grounds that it's privileged, right, like conversations between, you know, the party and their lawyers, right? Are responsive to discovery requests. But instead of producing those documents, because you don't have to give up valid requests for attorney-client advice, you then produce a privilege log that will say, hey, there are these 137 letters between the CEO and general counsel, and you list who the recipients are. You generally list the subject line of the document, unless there's reason not not to list the subject line.

0:34:54 Kel: Pretty close yeah that

0:35:44 Andrew: You list the date. And so I wanted to, A, make sure I understood the Vaughn Index and B, kind of provide that color for how you can have information even when you don't get either documents or a written response back. So I think that that's helpful. And then question that I had based on that is, it sounds like to somebody who's not an expert in this area of law, that the way in which you demonstrate lack propriety in the pre-publication review process focuses on that last one, really focuses on the procedural elements, right? It'd sort of be akin to like bringing an Administrative Procedure Act case or whatever. You would show strong deference to the substantive decisions, but you do have to show that there was some, some regularity in following the process, and if there wasn't, that that's what would lead a court to kind of be more skeptical about those determinations. And am I drawing the right lesson on that as well? Yeah.

0:36:47 Kel: In classification arguments, yes, that's, that's generally it, that as long as the agency can show that it followed the appropriate process for classifying something, then most judges are going to say, okay, I'm going to defer to the agency's decision about whether or not it should be classified. Now, you can fight that, and you can say, you know, when they say something in the Vaughan Index that, you know, this withheld item was the lunch menu that he, what he had for lunch, then you can say this is not classified material. And you can push back on that.

On other exemptions, there is often less deference, although still a decent amount of deference when it comes to things like intelligence sources and methods. But things like privilege, there's no difference, and so, you know, if they were to say, well, this is covered by executive privilege, then the court does not have to defer to their decision on that, and you can engage in the substance of that and say, you know, based on what they say in the Von Index, this information does not meet the test of B5 for executive privilege, or does not be the the test for

0:37:19 Andrew: Well

0:38:05 Kel: Sources and methods, and there have been cases where even on something like sources and methods, a court has said that no, your contract with a publisher to publish your your book is not an intelligent source and method just because the CA is one of the contracting party, and that's a real life example. And so it's not just procedural, it is generally just procedural when it comes to classification matters, but with everything else, no, they have to provide enough information that allows the judge doing a de novo review to make a decision as to whether or not he or she believes that this withholding fits the definition of what is covered by the privilege.

And if it's a close call, they'll do an in-camera review, and I have had in-cam reviews result in, I'm convinced, convinced, summary judgment for the agency, and I've had in camera reviews, uh, result in, I'm not convinced. And in one case, the judge was so annoyed by the fact that she had to do the in-camera review, that she stated the withheld information in the opinion and I was like, yeah, that's great, you know, know, I, I wholly endorse this approach, but

0:39:27 Kel: Right

0:39:26 Andrew: And and there's a hundred percent judicial immunity for for doing that so uh that's that's incredibly clever that's

0:39:30 Thomas: Jeez. Let's get on it, judges. Let's do that.

0:39:35 Kel: And It comes down to the fact that in FOIA cases, it is not the plaintiff's burden to prove anything, it is the agency's burden to prove by the standards of summary judgment that there is no question of material fact that would result in them not getting summary judgment. And they have to prove that they processed the flare properly. You don't have to proof that they didn't.

0:40:06 Thomas: All right, so as we're drawing to a pause here, what is your expected timeline? I think you did mention something about not getting an expedited review, potentially, but when might we expect something to happen on this

0:40:06 Andrew: And

0:40:18 Devin: Of the litigation is over the denial of expedited review. So the very first thing that needs to be settled is the fact that this is a matter of compelling national interest. And this is the sort of thing that might, I don't know, influence an impeachment trial or a democratic election. So, the very first things that needs happen is that there There needs to be a court order enforcing the fact that this is entitled to expedited review. But as

0:40:48 Andrew: In. Feel not to answer if it gives away litigation strategy, but it sounds like you feel pretty confident that the law is in your favor with respect to expedited review. Is that a fair assessment? I like it. Oh, that

0:41:01 Devin: Yeah,

0:41:02 Thomas: Sure

0:41:03 Kel: Won't tell you how exactly I'm going to argue that, but I can say as sort of the thousand-foot view, yes. Based on the law of expedited review, we have a very good case that these should have been expedited, And it only helps that the two DOJ components that we asked for expedited processing, National Security Division and Office of Legal Counsel, gave it to us.

0:41:32 Kel: And so while that's not probative in a legal sense, that's persuasive that the legal offices said, yeah, this is expedited. I'm

0:41:42 Andrew: Makes perfect sense. So anyway, Devin, I had interrupted you, So go

0:41:45 Devin: Well, no, I think I need to turn it over to Legal Eagle's lawyer for the timeline of the Legal Eagle litigation. Kel, do you think we'll get a substantive determination before or after we reach two million subscribers?

0:41:52 Andrew: I will point out your lawyer answered my question with yes. So, you know, and

0:42:03 Kel: Make subscribers well it depends on how many people listen to opening arguments and think I need to subscribe to this person. Far as the timeline goes, expedited processing is something that a judge generally moves on fairly quickly, cases treat it like a preliminary injunction, and so they sort of, pun intended, expedite the consideration of it. This is something that I am reasonably confident we would definitely get a decision on whether or not it should be expedited within the next handful of months. Now, that being said, as to records being withheld, FOIA is not fast, even expeditiously.

0:42:12 Thomas: This show yeah we're

0:43:00 Kel: Expeditiously, and I don't think that given the nature of these records, we're gonna get like any records that they want to fight us on before next year, but I do think that it's quite likely that we'll get records that we agreed to release to us in redacted form or unredacted form, uh, by, you know, by the fall. I

0:43:25 Andrew: You can? I mean, obviously, it's all speculation at this point. But in your experience in litigating these kinds of cases, what what are the sort of documents that, you know, you might that an agency might initially refuse to turn over, but might give up kind of in that first phase that you've described by the fall? Yeah,

0:43:46 Kel: Think that it's entirely likely that we will get from the intelligence agencies, and I'm setting NSC apart for a minute, from that, were basically redacted copies of pages that were sent to them from Bolton's book, and the redactions will probably be the things that they told Bolton he couldn't publish. They'll just be coded differently. I think that we'll probably get a lot of correspondence. Like here's an email, and it may be redacted what the correspondence is, but it will be like on January 25th someone from the NSC sent someone to the CIA five pages for review.

0:44:33 Kel: Or didn't. You know, that this office had one of the early requests that was processed in, I'll say, late February, early March. One of the few requests that we've actually gotten a response from, we have no responsive records about pages being sent to us. And that was DOD. And so, as of whenever that was process, DOD, nobody had sent DOD any pages, which was kind of interesting. Uh, we later filed a new request for new records to see if they sent them later, and we'll find out what happens to that later. I think we get a bunch of the legal documents, I think you get the OLC opinions, or we'll get acknowledgement of OLC opinions, and maybe redacted copies, but nothing earth shattering, you know, here is material that they prohibited Bolton from putting in.

It'll be more smoke to see that we can sort of pull on that string, to mix a bunch of metaphors, and see if there's fire later. If thing that we won't get, uh, I'm, I'm virtually certain of, uh, in the next, in the first trench, if anything, from the NSC, because, as I alluded to, NSC thinks that they are completely outside the scope of FOIA, and they're going to take that to the mat, and so we're going have to get a judge to order them to be subject to FOIA before they even agree to look at records for us.

0:46:03 Andrew: Well, it, it sounds like we have a lot of factual developments to follow. It sounds like there will be a lot of tough investigative journalism work to kind of put together and see, you know, read between the lines, read read between the redactions and, and see what's there, you know, if and when you do get documents. And so we're, we're very excited to, to follow this process. Is there anything that you wanted to add that we didn't ask about that you want to get out?

0:46:36 Devin: Don't think so. I think that, you know, this is a new thing for the channel. You know, I'm fulfilling the dream of being able to say I don't recall while being deposed personally. So that's going to be, that may be new for me. Me. Usually I'm on the other side of the table, but I think that a lot of different ways that we can move the ball in this litigation, and it's going to be a fun experiment. And I'm happy to be able to give a small window into the litigation process as it is unfolding, which a lot lawyers don't get a chance to do. So I'm happy to bring everyone along for the ride. God,

0:46:48 Thomas: Well, if you need anyone to write your amicus brief, you know, I'm your man, I can, I can do it, I've done it before, I'm real good at it, help you out, a little bit thank

0:47:24 Devin: I thomas I really did enjoy uh your amicus brief more than andrew's so I think you've got uh I think he's got a real future Thanks

0:47:29 Thomas: You genius lawyer devin stone on the show. Thank you so much for coming on, and Cal McClanahan, of course. Uh, I don't think we were hostile our witnesses. I think this went well.

0:47:43 Thomas: No need to have our mirrors present next time. No, I'm just kidding. Thanks so much for coming on, guys. Really appreciate it. And we will keep track of this and of course, if there are any updates, we can have you back on.

0:47:54 Devin: For having us

0:47:54 Kel: Thank you.

0:47:55 Clip: And thank you, Let's go!

0:47:57 Thomas: Now it's time to take our top patrons, our Hall of Famers, our all-time greats on patreon.com/law, enjoying all the goodies. Enjoy, by the way, uh, this very episode they probably got early because we're going to try to make sure the Tuesday episode comes at you a little early, maybe 24 hours earlier, because that's a benefit that we've been trying to, we want to get back to. That was another patron benefit, early Tuesday episode. So hope you enjoy that. Thank you to Bradford Keedy.

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0:49:13 Andrew: Yeah.

0:49:14 Thomas: Would love your advice on the best use of time and or donations to ensure Trump loses in November. Hmm, I would say find uh the the the flippable seats in the Congress. I think focus more on that, maybe, because that'll, hmm,

0:49:30 Andrew: And I would support organizations that are figuring out how to do get out the vote in this time of pandemic. Right. So organizations that are spearheading vote-by-mail drives, that kind of thing, anything that uh that drives up turnout. Yeah.

0:49:37 Thomas: Good point there You have it. Samuel Bland, My Call Nude and My Chill Y'all, Am Tam, this is not the greatest Patreon name in the world. No, this is just a tribute. Oh, I love God, I listened to that the other day for the first time in a while. I truly have fond memories of the Tribute music video, which is perfect. It's a perfect piece of art, that music video. Anyway, Dr. Chris vs. the Ghost of the Seattle Live Show. This episode brought to you by the letter Q for quarantine. Center Black Trans Sex Workers. The Books That Burn podcast, reviewing fictional depictions of trauma since 2019. A string of impeachable characters, each more impeachible than the last. Hornbook Law is a primer. That's pronounced primer, you ninny. It's not paint. Wear a mask. It's polite. Fly Like a Hot Dog Freedom Eagle.

0:50:32 Thomas: Angry Mac face. More code names, live streams. Damn it. Every time, Andrew, we say we should do that and then we forget. Say it with me, amicus. No, no. It's the What's It About podcast, a happy place for book reviews and author interviews. In Illinois, we pronounce it Illinois. Make Steve King an author again. Murray Gregerson. Come to Minneapolis for the future live show. Stay because of the seemingly inevitable second lockdown. Yeah. This is a paid message from the committee to get Lionel Hutz nominated to the U.S. Court of Appeals. The venerable Richard Milhouse Nixon. Woohoo. Finally on the top patron list. All right. Ben Ghazi and the Buttery Males. Went to Minneapolis George Floyd protest because I already lost one child to racist policy. Not again. 404, Patreon name not found error. Sorry, have to save money for HK protester legal defense fund. Oh, okay, Chris, do you think

0:50:38 Andrew: Yeah. I

0:51:28 Thomas: There's an even darker timeline where Trump is competent and has comically large hands. Jake Braun, give to modestneeds.org, give to modestneed.org. You come at the king, you best not miss. Conrad Michaels, a Omar Little, so good, are you still watching The Wire? Thought you started? Oh no, you, I'm sorry, you started Breaking Bad along with, gotcha,

0:51:42 Andrew: Have never watched the wire No. Yeah. Breaking Bad and Better Call Solve. So yeah.

0:51:49 Thomas: Okay. Well, next you should watch The Wire since you, since you've decided finally to watch good TV, you're like, oh, maybe I should watch good things, maybe to watch another good thing and but it's only like one of the best shows ever created in the history of TV. But yeah, Ian Buckley, Kristin, sorry, Kristian Daniel, OMG I Heard My Name, Apathy Is the Enemy, I'm Not Going to Get Plastered, Rimmer Just Nicely Drunk, Make Your New Business a Co-op and Give Democracy a Chance. Christopher Brown. Laughalcopter says Confederate monuments might be their heritage, but destroying the Confederacy is my heritage. I love that argument, by the way. It's good stuff. Brad in Texas. Zirkle. I was very, very drunk when I changed my patron name last week. My name this week is no better. Can we get cert to appeal all of Thomas's incorrect T3BE answers? Oh, finally made that not a relevant patron name. Odin Wants to Defund the Paw Patrol. Me too, I hate that show. Rob M. There's a goat.

0:51:49 Andrew: Right. Yeah. Yeah. Okay. OK.

0:52:45 Thomas: Why is there a goat? Emily Rainbow Spence, camp42.org, camp 42.org. Andrew Seidel's butt.

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0:53:28 Andrew: Yeah. And I have to say, I have been using Fly Like a Hot Dog, Freedom Eagle in all of my conversations lately. That is just such a great Patreon name. But thank you to Darth Mandy Pants, Nate Drex, Blue Horseshoe Loves Anacott Steel. Such a great movie. 13th Century Saxony, Gravel Truck Lawyer, 6200 Pennsylvania Avenue. I'm brewing. Save the U.S. Postal Service. They are essential for small businesses. That is true. Diogenes the cynic was right. Volunteer for your candidate today and take back your government. Tramp stamp in German is Arschgleweich, literally ass antlers. Well, there you go. Good to know. Oh, Jennifer Kratch, let's send unsolicited dicta pics to Naomi Rao. Yeah, but only of various dicta from opinions that are not holdings.

0:53:36 Thomas: Wow.

0:54:23 Andrew: Stephen Balticate Sandoval, Jay Cheever Leupold, civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Well, that's the end of the Republic so long, and thanks for all the memes. John Bilderbeck, wash your hands, then vote for Joe Biden.

0:54:47 Thomas: Are you

0:54:57 Andrew: Oh, that's so good. Superior may be going too far, but I'd like a show comparing civil law versus common law systems. You may get that. The Confederate monument that needs removal the most is Mitch McConnell. Therese Chan, oh gosh, I have a freeze-dried durian story that I need to tell about Therise Chan, but uh, not now. Napoleon Pain, Strumpet Trambolus, High Contrast Photography Is a Shadow Interest, Gay Frogs, Murder Hornets and Karaoke, The Wandering Gambler, Akatarawa, Akatarowa, Japan, I'm sorry if I uh mispronounced that. Join your labor union together, we bargain, alone we beg, yes a show on unions please, wait wrong list, these are the people that are suing us, James Call, check out the dicta on that mandamus.

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0:56:21 Thomas: Sure.

0:56:21 Andrew: Uh Tulsa, come for the one one-third full of arenas and stay for the COVID, Buttercup's Chutney, hey Thomas and Andrew, do you want some homemade peach chutney, I just made some chutney, uh, he's big, easy blasphemy. The odler is preparing for a fiery re-entry. Rhonda 2020, because why the F not? Malika Chandler, clown hornet. I started drinking again. Well, good for you. Um, soggy pants, put quack and tush. Matthew Vernon, David in Brooklyn. Adopt a homeless pet in a postie, clogging an ear docking. Don't take legal advice from laser beam monstrosity attorney at law. Sakashite Fukasumi, Heather L Jeremiah's Fancy Microwave Emporium Ian and Allie, Danny Rosari, Eli Bosnick Sam Donow, Emotionally I am a Poorly Folded Crunchwrap Well, that's sad. Sam Buck Mitchell, No Commute So Behind on Podcast John Roberts basically just said Lie better next time, okay? Alexandra Chalupa, a.k.a. Natasha Crunchwrapp Michael Conrad And of course, our all-time great Conrad Michaels Until

0:56:29 Thomas: Ah.

0:57:20 Thomas: Thanks, top patrons, so much, we love you all.

0:57:23 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:57:30 Thomas: Now it's time for T3BE answer time, Andrew, how did I mess up this one this time? No.

0:57:36 Andrew: All right, Thomas. So this question was about an accident at a medical facility. So, indigent patient who was institutionalized at a psychiatric facility pushed a nurse down a stairwell. And the nurse was paid employee. The nurse was experienced in caring for schizophrenic patients. And the bar does sometimes ask questions like this, was, which of the following facts will be least helpful to the patient's lawyer's argument defending herself against the negligence action brought by the nurse against the patient for pushing the nurse down the stairs. Think this is the first time you've done this.

0:58:23 Andrew: I really, really loved that you did this with the question. We had four sets of facts, and you ranked them in the order of helpfulness, right, which is above and beyond what the bar requires you to do.

0:58:33 Thomas: I tried. Well, it's kind of what you, what you have to do, to pick the least helpful one. I mean, I suppose you could say the other three were a tie or something, but yeah.

0:58:45 Andrew: That's right. So you eliminated A and B. A, that the nurse was a professional caregiver. Obviously, that is super helpful to the patient lawyer's argument, because if your defense is assumption of risk, for example, you would say, look, like you chose to take on this job. You know what happens when you work with schizophrenic patients, right? You also eliminated, was a professional caregiver, right, that is, and then B was specifically trained to care for patients with schizophrenia, right, so that is relevant not only for kind of the general principle of assumption of risk, would be relevant for an argument if this is a comparative negligence state, right, so you would want to know, did the nurse exercise the level of care that was appropriate for somebody who is required to care for schizophrenic patients, you could also argue, right, when you're thinking about the elements of the cause of action for negligence, you might want to argue whether this risk was the kind of risk that was foreseeable, right?

0:59:04 Thomas: Yeah.

1:00:01 Andrew: And you would say, again, you're a nurse, you work with patients, and therefore you should have known that this was was possible,

1:00:11 Thomas: That that was my reasoning. Uh-huh.

1:00:13 Andrew: So, nice job eliminating those two. So, then the question is, is it least helpful to know, see that at the time she pushed the nurse, the patient thought she was being attacked by an elephant? I love this because, as we've talked about before, the bar exam will often and phrase answers like that, right? Like, and just one of them, right, will be, you know, right.

1:00:17 Thomas: Yeah.

1:00:40 Thomas: That'll be elephant law? Well, it turns out there's a history in 13th century Saxony of elephant attacks that are accounted for by this law.

1:00:49 Andrew: Yeah. Or is it relevant that the patient was indigent and their care is being paid for by the government? And you, I'm happy to say, correctly decided that D was not relevant at all. So therefore, it couldn't possibly be right. Like the elephant thing, it tripped you up or it didn't trip you up. It gave you pause because

1:01:17 Thomas: Yeah, that frigging elephant tripped me. I'm being attacked as well.

1:01:22 Andrew: The fact pattern specifies that the jurisdiction follows the rule that a person with a mental deficiency is held to the standard of a reasonable person. And so you're sitting there thinking, yep.

1:01:34 Thomas: Right. But it does say generally. So, you know, I guess that would have been something I could have brought up too. Like if it says generally, that means, hey, maybe you can make the case that, look, this person thinks they're being attacked by an elephant. This is maybe a time to not hold them to a standard of a reasonable person.

1:01:51 Andrew: And so, I mean, to me, the question that that bears on, right, when you look at a question like this as a lawyer, what you do is you break the cause of action down into its elements and you see what of the facts relate to any of those elements of the cause of action of negligence.

1:02:12 Thomas: Yeah. Well, but that's why, so I was just really worried there could be some technicality, you know, like the, uh, well, it would remind me of the terminology, but there was going to be something like, well you can't sue the government unless it lets you. And because the patient is paid for by the government, it's essentially like, sorry, we're not going to, I thought it was going to be some technicality that would make it so that, you know D was slightly more relevant or something, but, but it, it still wouldn't really make sense for the patient's lawyer. Well, I don't know.

1:02:40 Andrew: Yeah. No, that's right. It's actually the opposite of a technicality. In other words, the law specifies that you can get a judgment against a plaintiff regardless of whether the plaintiff has the ability to pay that judgment, right? So yeah.

1:02:52 Thomas: Right. Okay. Okay, that's kind of what I was trying to get to just there. So you still would be able to make the argument and sue them or whatever, but then maybe they just wouldn't be able to pay you.

1:02:55 Andrew: Yeah, that

1:03:05 Thomas: Gotcha, gotcha.

1:03:05 Andrew: Is exactly right. And so patient's resources are completely irrelevant. The thought, the mental state evidence, in my view, becomes relevant when you are thinking about the question. So a negligence action requires, there are really five elements to negligence, right? The first is you have to prove that the person owed a duty to you, right. The second is that they then breached the the appropriate standard of care for somebody with that kind of duty, right? That is the act itself, right. So yeah, do you have a duty? Yes. You have a generalized duty not to shove people down the stairs, right, did this person breach that duty?

1:03:54 Andrew: Yes, they did by shoving the person down the stares. The third element of negligence is cause in fact, right? Was the plaintiff's injuries, did they in fact result from the actions of the defendant? Yes, they did. Um, and and here's where I think like the the potential sort of mental state comes up is the the question in addition to cause in fact, um, we also have a requirement that that causation be proximate to the defendant's actions, right?

So, for example, we talked about the case well-known to all the law students who listen to the show and lawyers of Paul Scraff versus Long Island Railroad, right, it's the one you learn in first-year torts, every law student learns it, it is, you know, woman is being pushed on board the train, It's overcrowded, it causes somebody else to get kicked off the train and they trip over somebody else who drops a package. And the package lands on the rails and it blows up and it knocks over a scale and it falls and it, you know, injures somebody right way down on the on the train station stand. And even though, right, like that sort of Rube Goldberg device chain of causes does link back to it used to be the case in the United States, sort of hard to imagine that like at train stations, there would be like designated pushers, right? Right. Like there

1:05:00 Thomas: I remember.

1:05:21 Thomas: Yeah, yeah.

1:05:22 Andrew: Would be railroad employees that would like cram you on board and shove you onto the train. So so that's How Long Island railroad got sued right there. Their designated pusher was, in fact, the start of the chain of the cause of events. And Long Island Railroad successfully argued, hey, man, like this, you know, yeah.

1:05:36 Thomas: Yeah. Hey, man, I'm a pusher. Pushers gotta push. A always, B, B. C, pushing. What I was taught.

1:05:46 Andrew: See, push it, yeah, you put the mouse

1:05:50 Thomas: Abp.

1:05:50 Andrew: In the pan, right, it goes down the little mousetrap thing, like, who could have possibly foreseen that ridiculous chain of events?

1:05:56 Thomas: Yeah, who could have foreseen that violently shoving a woman into a train would cause problems? Okay, not I it's a different time.

1:06:02 Andrew: Well, and that case is the one that people go to for proximate cause. And I think if I were to make an argument for how the elephant thing could potentially be relevant, right, you would say this is within the proximate zone of causation for dealing with a schizophrenic patient because, right? As a part of like, you know, they may tend to hallucinate, right. It's not a it's not a great fit, but but but it's it's better than one that definitely cannot at all apply to the torch.

1:06:35 Thomas: Zero. Well, I nailed it you know, I feel

1:06:40 Andrew: So you nailed it.

1:06:40 Thomas: Like I knew this was right. I, uh, but when you're on a skid, it's like, things can be, you grip that bat a little harder, you know, it doesn't, that's Oh, they say in hockey, when that used to exist, that you grip the stick a little tighter and it just doesn't, sometimes you, you miss even more shots because you're nervous about not scoring forever, so that's how I felt. But damn it, I got one right, so hop in your time machine, Andrew, and uh, tell us who I tricked into choosing C when really the answer was D and

1:06:48 Andrew: Yep. Open up your stance a little bit.

1:07:10 Andrew: All right, Thomas, this week's winner is Metal World RPG on Twitter, although, in fairness, they kind of cheated by linking, like, I don't know, 13 tweets embedded in an entire thread, but I have to tell you, those were a comprehensive analysis of the issues, really, really well done. Here's the last one in the chain, which says, "D doesn't aid the defense whatsoever because it can't speak to the defendant's liability, only whether or not he can pay," which is concise and exactly right. Metal World goes on to say, "I'll be listening Tuesday morning as I prepare for afternoon surgery to have my meniscus and torn ACL fixed." Clown horn, extension ladders, yeah, clown horn them indeed. Uh, hopefully this brightens up your uh prep for surgery a little bit, and everyone give at Metal underscore World underscore RPG a follow on Twitter, and uh, and check them out, they've been a long-standing friend of the show, and congratulations on being this week's winner of T3BE.

1:08:10 Thomas: You all right, well, that's the show. Thanks, everybody, for listening, and uh, thank you to Legal Eagle, uh, and counsel, by the way, and, and we will see you next time.

1:08:20 Andrew: Then He's not even a lawyer and he's kicking your ass.

1:08:53 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.