Latest / The Epstein Chronicles / Katie Phang And Her Opposition To Todd Blanche Motion For A Stay (Part 2) (9/22/26)

Transcript

Katie Phang And Her Opposition To Todd Blanche Motion For A Stay (Part 2) (9/22/26) · The Epstein Chronicles

• 0:00
  Speaker 1: What's up everyone and welcome to another episode of the
• 0:03
  Speaker 1: Epstein Chronicles. In this episode, we're going to pick up
• 0:06
  Speaker 1: where we left off with Katie Fang and her motion
• 0:09
  Speaker 1: opposing Todd Blanche's motion for a stay. Five, defendant has
• 0:16
  Speaker 1: not otherwise established he's entitled to a stay. Even if
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  Speaker 1: defendant had properly conferred with plaintiff, even if the enforcement
• 0:24
  Speaker 1: order were immediately appealable, and even if the request for
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  Speaker 1: a stay had been timely, Defendant has failed to show
• 0:32
  Speaker 1: he's entitled to a stay. A stay pending appeal is
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  Speaker 1: an extraordinary remedy. MMV v. Barr, D.C., 2020. It's an
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  Speaker 1: intrusion into the ordinary process of administration and judicial review
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  Speaker 1: and accordingly is not a matter of right. I.D. quoting
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  Speaker 1: Neckin v. Holder, 2009. And the moving party bears the
• 0:54
  Speaker 1: burden of justifying why the court should grant this extraordinary remedy.
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  Speaker 1: In considering whether to grant a stay, courts consider four factors. One,
• 1:04
  Speaker 1: whether the stay applicant is made strong showing that he's
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  Speaker 1: likely to succeed on the merits. Two, whether the applicant
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  Speaker 1: will be irreparably injured absent of stay. And three, whether
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  Speaker 1: issuance of the stay will substantially injure the other parties
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  Speaker 1: interested in the proceeding. And four, where the public interest lies. I.D.
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  Speaker 1: the Attorney General fails on all of these factors. A.
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  Speaker 1: Success on the merits. Defendant has repeatedly failed to show
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  Speaker 1: that he's likely to succeed in opposing the PI order,
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  Speaker 1: nor in his latest brief has he shown that he
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  Speaker 1: is likely to succeed his opposition to the enforcement order,
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  Speaker 1: which at any rate, as explained above, is not immediately appealable.
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  Speaker 1: Nearly all of the arguments defendant now makes are ones
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  Speaker 1: that he made and lost in the prior briefing. See
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  Speaker 1: Opposition to Preliminary Injunction and number 12. raising cause of
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  Speaker 1: action and standing arguments. Response to PI order, ECF number 19, same.
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  Speaker 1: Plaintiff refers back to her prior responses on the issues.
• 2:08
  Speaker 1: Preliminary injunction, motion ECF number 9, reply on prelim injunction,
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  Speaker 1: motion ECF number 13. Response to court order, ECF number 20.
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  Speaker 1: To the extent the defendant raises new arguments on the
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  Speaker 1: substance of the case, those arguments are now waived, as
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  Speaker 1: arguments raised for the first time and a reply brief
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  Speaker 1: are forfeited. Media Matters for America v. Paxton, D.C. Circuit 2025. Here,
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  Speaker 1: we are long past the point of reply briefs. The
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  Speaker 1: time for non-jurisdictional arguments was at the prelim injunction stage. Nevertheless,
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  Speaker 1: despite the fact that defendant has obviously waived these arguments
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  Speaker 1: by bringing them months too late, it's worth addressing two points. First,
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  Speaker 1: the Attorney General continues to misstate the cause of action
• 2:56
  Speaker 1: in the case. Repeatedly, he argues that the Epstein File
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  Speaker 1: Transparency Act confers no private right of action, motion at
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  Speaker 1: 15 through 18, but plaintiff did not bring her case
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  Speaker 1: under the Epstein Act, but rather the Administrative Procedure Act, APA.
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  Speaker 1: The practical difference is that private rights of action typically
• 3:16
  Speaker 1: permit plaintiffs to seek damages, while the APA permits only
• 3:20
  Speaker 1: injunctive relief. Instead, and rather incredibly, Defendant argues that the
• 3:27
  Speaker 1: Freedom of Information Act is the exclusive means by which
• 3:31
  Speaker 1: plaintiff can seek files to be produced pursuant to the
• 3:34
  Speaker 1: Epstein Act motion at 16 and 17. But the Attorney
• 3:38
  Speaker 1: General is saying different things to different people. As plaintiff
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  Speaker 1: noted to this court, those who request Epstein Act files
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  Speaker 1: under FOIA are told that, in fact, it's the Epstein
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  Speaker 1: Act that's the exclusive means to getting these files. ECF
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  Speaker 1: number 14. When this court demanded an immediate explanation for
• 3:57
  Speaker 1: this discrepancy, the Attorney General never responded. See Minute Order,
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  Speaker 1: June 25, 2026. Second, defendant now makes an argument about
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  Speaker 1: the standard for relief under U.S. Code 5, Section 7061,
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  Speaker 1: Motion at 21, which empowers the court to compel agency
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  Speaker 1: action unlawfully withheld or unreasonably delayed. Plaintiff raised the possibility
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  Speaker 1: of relief under Section 7061. in her prelim injunction briefing,
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  Speaker 1: ECF number 9-1 at 22, 28, 30, and 31. But
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  Speaker 1: defendant failed to make any argument in his opposition or reply.
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  Speaker 1: See Opposition to Prelim Injunction, Motion ECF number 12, Response
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  Speaker 1: to PI, Order ECF number 19. Now he belatedly raises
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  Speaker 1: this concern, far too late to be considered. Instead, the
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  Speaker 1: Attorney General appears to blame the court for this error.
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  Speaker 1: saying that as a result of the unique posture of
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  Speaker 1: these proceedings, the court did not apply the factors he
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  Speaker 1: failed to raise. Motion at 23. But the factors for
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  Speaker 1: considering relief under Section 706 are the same at both
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  Speaker 1: the prelim injunction and merit stage. Defendant has only himself
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  Speaker 1: to blame for failing to make the argument earlier and
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  Speaker 1: should not be allowed to do so now. See Hall v. CIA, 538, DDC, 2008.
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  Speaker 1: Defendant had waived that argument by not timely raising it
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  Speaker 1: before the district court. Irreparable Harm, Part B The Attorney
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  Speaker 1: General will suffer no irreparable harm by following the law.
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  Speaker 1: In its enforcement order, the court directed defendant to initiate 1.
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  Speaker 1: Review and 2. Production of foreign language material that may
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  Speaker 1: be subject to production under EFTA and 3. Provide notice
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  Speaker 1: to the court and all parties that such review is underway.
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  Speaker 1: by no later than September 24, 2026, ECF No. 43,
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  Speaker 1: Enforcement Order at 19. The Attorney General asserts, without support,
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  Speaker 1: that merely reviewing the documents is an irreparable harm. Motion
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  Speaker 1: at 6. Of course having to devote scarce resources to
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  Speaker 1: reviewing the documents is quintessential irreparable harm. But requiring the
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  Speaker 1: government to spend resources to comply with the law is
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  Speaker 1: not irreparable harm. nor does the mere prospect of producing
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  Speaker 1: documents pursuant to the Epstein Act constitute any irreparable harm.
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  Speaker 1: The court's not directing that all foreign language documents be produced,
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  Speaker 1: but rather only those subject to production under the EFTA.
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  Speaker 1: ECF number 43, enforcement order at 19. Moreover, the court has,
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  Speaker 1: for now, left it to defendants' discretion which documents, in fact,
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  Speaker 1: must be produced. This is different from the Freedom of
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  Speaker 1: Information Act case's that defendant cites, in which the district
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  Speaker 1: court directed specific documents to be produced without discretion. Crucially,
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  Speaker 1: in the cases defendant cites, the government had no discretion
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  Speaker 1: about what to produce. Here the Attorney General still does,
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  Speaker 1: and thus suffers, no irreparable harm in complying with the
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  Speaker 1: court's order. C. Substantial Injury to Plaintiff In contrast to defendant,
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  Speaker 1: a stay of the enforcement order now would cause substantial
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  Speaker 1: injury to plaintiff. Katie Fang's a journalist who's covered the
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  Speaker 1: Epstein scandal for years, has interviewed survivors, and has published
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  Speaker 1: dozens of stories on the subject. Memorandum in support of
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  Speaker 1: motion for prelim injunction ECF number 9-1 at 20. Her
• 7:33
  Speaker 1: posts and videos covering the Epstein saga have generated significant
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  Speaker 1: web traffic and revenue, and she faces harm of her
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  Speaker 1: profession and livelihood if she can't get the information to
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  Speaker 1: which she is entitled. The court accepted this argument in
• 7:48
  Speaker 1: granting Fang's motion for a prelim injunction. In his latest motion,
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  Speaker 1: defendant raises again the argument that this court rejected, namely
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  Speaker 1: that Fang suffered a generalized grievance that is undifferentiated and
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  Speaker 1: common to all members of the public. Motion at 9.
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  Speaker 1: Fang has explained in detail the basis for her standing
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  Speaker 1: and the irreparable harm she'll face as a journalist by
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  Speaker 1: the Attorney General's failure to follow the law. Complaint ECF
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  Speaker 1: at 42 through 47. Memorandum in support of motion for
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  Speaker 1: prelim injunction. Nevertheless, it's helpful to distinguish the case defendant
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  Speaker 1: now cites. U.S. First Richardson concerned a taxpayer who sued
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  Speaker 1: to uncover the expenditures of the Central Intelligence Agency. His
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  Speaker 1: personal stake in the matter was limited to his interest
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  Speaker 1: as a taxpayer and a voter. Fang's take in the
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  Speaker 1: present litigation is very different, and she's not merely criticizing
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  Speaker 1: an undifferentiated member of the public, her profession and livelihood
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  Speaker 1: depends in part on review and, as appropriate, release of
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  Speaker 1: the information at issue in the enforcement order. In this way,
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  Speaker 1: she experiences precisely the kind of harm that Congress sought
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  Speaker 1: to prevent by passing the Epstein Files Transparency Act. Defendant
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  Speaker 1: has presented no new evidence to make this court reconsider
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  Speaker 1: its prior conclusions on the issue. D. PUBLIC INTEREST As
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  Speaker 1: this court previously explained, the public interest in the case
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  Speaker 1: weighs in favor of the government both releasing the relevant
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  Speaker 1: files and complying with the law, ECF No. 16 at 40. Here,
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  Speaker 1: the current level of interest in the Epstein files, combined
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  Speaker 1: with the upcoming midterm elections, amounts to a circumstance that
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  Speaker 1: itself constitutes irreparable harm, especially where the Attorney General has
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  Speaker 1: not disputed that he's in violation of the Epstein Act.
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  Speaker 1: To the extent that the defendant makes any argument against
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  Speaker 1: about public interest. And it is not clear that he does.
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  Speaker 1: It's that the improper for prelim injunction to work to
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  Speaker 1: give a party essentially the full relief she seeks on
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  Speaker 1: the merits. Motion at 19. The primary case on which
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  Speaker 1: defendant relies, however, Organization of American Historians, concerns the expedited
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  Speaker 1: processing of the entirety of plaintiff's FOIA requests. Here the
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  Speaker 1: court has directed defendant to follow the clear directive of
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  Speaker 1: the law, which defendant does not dispute, with respect to
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  Speaker 1: foreign language documents. And unlike Organization of American Historians, this
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  Speaker 1: directive concerns only a small portion of plaintiff overall requested relief,
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  Speaker 1: and as such is intended to preserve the relative positions
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  Speaker 1: of the parties until a trial on the merits can
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  Speaker 1: be held. A preliminary directive to follow the small portion
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  Speaker 1: of the law while the litigation is pending is clearly proper. Conclusion.
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  Speaker 1: For the reasons above, defendant's motion for a stay should
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  Speaker 1: be denied. This document was signed by Brendan Ballew and
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  Speaker 1: it was dated September 21st, 2026. All the information that
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  Speaker 1: goes with this episode can be found in the description box.