Latest / Beyond The Horizon / Katie Phang Responds To Todd Blanche's Latest Motion To Postpone (Part 2) (10/10/26)

Transcript

Katie Phang Responds To Todd Blanche's Latest Motion To Postpone (Part 2) (10/10/26) · Beyond The Horizon

• 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 the Katie Fang response to
• 0:10
  Speaker 1: Todd Blanche looking for another postponement. 3. The court should
• 0:14
  Speaker 1: deny that motion to postpone on its merits. Defendant's motion
• 0:19
  Speaker 1: to postpone would also be denied on its merits. Defendant
• 0:23
  Speaker 1: argues that the court should postpone the AR deadline because
• 0:26
  Speaker 1: his 12 Rule C motion for judgment on the pleadings
• 0:29
  Speaker 1: presents only legal questions and puts no material facts in dispute.
• 0:35
  Speaker 1: Not only is that patently wrong, but defendant understates the
• 0:38
  Speaker 1: showing he must make to excuse his obligation to produce
• 0:42
  Speaker 1: an administrative record. To obtain that relief, defendant must show
• 0:46
  Speaker 1: that the administrative record is unnecessary to resolve the current motion. C.U.G. U.S.
• 0:52
  Speaker 1: Inventor Incorporated v. U.S. Patent and Trademark July 12th, 2023,
• 0:59
  Speaker 1: to Horvey v. Blinken, March 28th, DDC, 2024. Defendant cannot
• 1:05
  Speaker 1: make a showing here for at least half a dozen reasons. First,
• 1:09
  Speaker 1: a record is necessary because defendant's Rule 12c motion makes
• 1:14
  Speaker 1: a series of fact-bound arguments. Specifically, the motion asks the
• 1:17
  Speaker 1: court to hold that plaintiff's APA claims fail because defendant's
• 1:21
  Speaker 1: redaction of non-victim information under the Privacy Act and withholding
• 1:26
  Speaker 1: of a foreign language material do not violate the Epstein Act.
• 1:30
  Speaker 1: Defendant is wrong on both accounts. But the court need
• 1:33
  Speaker 1: not decide those questions today. Any such ruling necessarily turns
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  Speaker 1: on facts only an administrative record can supply. For instance,
• 1:42
  Speaker 1: whether there are additional review protocols other than the one
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  Speaker 1: defendant relies on. Whether reviewers follow those protocols. Whether non-victim
• 1:51
  Speaker 1: information was redacted or withheld for reasons other than those
• 1:55
  Speaker 1: defendant now invokes. whether material referring to President Trump were withheld,
• 2:00
  Speaker 1: and what quality control measures were taken. When asked to
• 2:04
  Speaker 1: resolve these sorts of factual issues, courts may deny motions
• 2:08
  Speaker 1: for relief from LCVR 7 and 1, even where the
• 2:13
  Speaker 1: legal question is a threshold one like standing. Here, the
• 2:17
  Speaker 1: defendant's fact-bound arguments go straight to the merits. The need
• 2:21
  Speaker 1: for a record is plain. Second, and relatedly, The Rule
• 2:25
  Speaker 1: 12c motion relies on several characterizations of the department's conduct.
• 2:30
  Speaker 1: For instance, that it went to great lengths to comply
• 2:32
  Speaker 1: undertook extensive efforts or made a good faith effort, ECF 52-1,
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  Speaker 1: Act 1, 23-24. Those are sweeping factual assertions about the
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  Speaker 1: agency's overall process that again can't be tested, only against
• 2:48
  Speaker 1: a record. Third, the Rule 12c motion relies on documents
• 2:52
  Speaker 1: outside the complaint. the first-level attorney review protocol attached to
• 2:57
  Speaker 1: the answer, ECF 50-1, the Federal Register notice generated in
• 3:01
  Speaker 1: response to this very litigation, the Department's Section 3 report
• 3:06
  Speaker 1: and production letter posted on its website, and even a
• 3:10
  Speaker 1: news article, ECF 52-1 at 3 and 4. The law
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  Speaker 1: in this circuit is crystal clear. Defendant may not rely
• 3:18
  Speaker 1: on selected record and extra record documents while at the
• 3:22
  Speaker 1: same time denying plaintiffs access to a comprehensive record. See
• 3:26
  Speaker 1: Walter O. Boswell, D.C. Circuit, 1984. For a review to
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  Speaker 1: go forward on a partial record, we would have to
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  Speaker 1: be convinced that the selection of a particular portion of
• 3:36
  Speaker 1: the record was the result of a mutual agreement between
• 3:39
  Speaker 1: the parties after both sides have fully reviewed the completed record.
• 3:45
  Speaker 1: The court is not prepared to grant summary judgment at
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  Speaker 1: this time because it's not convinced that the entire record
• 3:50
  Speaker 1: is before the court. Vargas v. McHugh, 2015. Fourth, and relatedly,
• 3:57
  Speaker 1: without a complete record, neither plaintiff nor the court can
• 4:00
  Speaker 1: tell which agency documents were before which decision makers and when.
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  Speaker 1: An adequate administrative record here would include all documents and
• 4:09
  Speaker 1: materials directly or indirectly considered by agency decision makers, and
• 4:13
  Speaker 1: at the time, defendant determined that the department's production satisfied
• 4:18
  Speaker 1: its obligations under the Act. And importantly, insofar as the
• 4:23
  Speaker 1: Department at any point acted inconsistently with its review and
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  Speaker 1: quality control protocols, defendant must also produce records explaining any
• 4:32
  Speaker 1: resulting redactions and withholdings. Plaintiff is entitled to a record
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  Speaker 1: that's adequate in these respects before she responds to a
• 4:40
  Speaker 1: motion that seeks merit resolution. Fifth, the Rule 12c motion
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  Speaker 1: relies on a prior ex parte in-camera submission that plaintiff
• 4:50
  Speaker 1: has not yet seen. Specifically, defendant argues that plaintiff cannot
• 4:54
  Speaker 1: obtain relief from certain redactions, as demonstrated through the ex
• 4:58
  Speaker 1: parte in-camera productions made to comply with the preliminary injunction ordered.
• 5:04
  Speaker 1: But if the document substantiating defendant's redaction decision bears on
• 5:08
  Speaker 1: the motion, and plainly they do, since defendant is citing
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  Speaker 1: them to support it, They're a part of the record
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  Speaker 1: and must at least be identified, even if withheld. 6.
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  Speaker 1: Plaintiff's Count 2 alleges that defendant's determination that the department's
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  Speaker 1: production satisfied the act was arbitrary and capricious. As a
• 5:28
  Speaker 1: general rule, such claims cannot be evaluated without the record
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  Speaker 1: of the agency's decision-making. Defendant provides no reason to think
• 5:36
  Speaker 1: this case will be the very rare exception. To the contrary,
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  Speaker 1: the defendant has bemoaned time and time again Complying with
• 5:43
  Speaker 1: the Epstein Act was a complex and resource-intensive undertaking. The
• 5:48
  Speaker 1: idea that this court could resolve an arbitrary and capricious
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  Speaker 1: claim respecting such an undertaking without ever consulting the administrative
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  Speaker 1: record beggars belief. As a final note, Plaintiff will fully
• 6:01
  Speaker 1: address defendant's underdeveloped argument about the proper scope of the
• 6:05
  Speaker 1: record at the appropriate juncture after Plaintiff has reviewed the
• 6:09
  Speaker 1: certified list and, where necessary, the produced record itself. But briefly,
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  Speaker 1: counsel's unverified representation that he is now not aware of
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  Speaker 1: any record that would be part of the administrative record
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  Speaker 1: that are not already publicly available cannot substitute for a
• 6:26
  Speaker 1: certified index. Even assuming that all materials properly in the
• 6:31
  Speaker 1: record are already publicly available, a doubtful proposition, defendant is
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  Speaker 1: wrong to suggest that it's plaintiff's responsibility to comb through
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  Speaker 1: publicly available documents and divine which ones were directly or
• 6:43
  Speaker 1: indirectly considered, by agency decision makers. At the time, defendant
• 6:48
  Speaker 1: determined that the department's production completed its obligation under the Act.
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  Speaker 1: Common sense and precedent dictate that when compiling an administrative record,
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  Speaker 1: the agency that did the considering, and that therefore is
• 7:02
  Speaker 1: in a position to indicate initially which of the materials
• 7:05
  Speaker 1: were before it, namely, were directly or indirectly considered. If
• 7:11
  Speaker 1: defendant intends to claim that the department's decision makers relied
• 7:15
  Speaker 1: on each and every publicly available Epstein Library document, but
• 7:18
  Speaker 1: not a single non-public one, he still must formally certify
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  Speaker 1: that and provide an index. Much more could be said,
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  Speaker 1: and will be, when plaintiff opposes the Rule 12c motion
• 7:29
  Speaker 1: on its merits. But for the present purposes, the above
• 7:32
  Speaker 1: reasons suffice to illustrate why defendant's motion to postpone lacks
• 7:37
  Speaker 1: any merit. The administrative record is plainly necessary for plaintiff
• 7:42
  Speaker 1: to have a fair opportunity to oppose the motion in
• 7:44
  Speaker 1: full and for the court to resolve it. The only
• 7:47
  Speaker 1: issue raised is defendant's Rule 12c motion that may not
• 7:51
  Speaker 1: require a review or the administrative record are the same
• 7:55
  Speaker 1: threshold issues that this court already resolved at the prelim
• 7:58
  Speaker 1: injunction stage when it rejected defendant's jurisdictional arguments. To be sure,
• 8:03
  Speaker 1: defendant may attempt to re-litigate those issues at the merit stage.
• 8:07
  Speaker 1: but they cannot justify prejudicing plaintiff through further delay. Denying
• 8:12
  Speaker 1: defendant subsequent motion, practice on a motion to dismiss because
• 8:16
  Speaker 1: it would clearly prejudice plaintiff. Defendant's jurisdictional and standing arguments
• 8:22
  Speaker 1: may equally be considered after production of the administrative record. Accordingly,
• 8:28
  Speaker 1: defendant's last-minute request to excuse his noncompliance with LLC VR
• 8:33
  Speaker 1: 7 and 1 states, and extend the court-ordered deadline to
• 8:37
  Speaker 1: produce the administrative record should be denied. Conclusion Defendant's motion
• 8:43
  Speaker 1: to postpone should be denied. Defendant should be ordered to
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  Speaker 1: file the certified list of the contents of the administrative
• 8:50
  Speaker 1: record immediately, and defendant should be ordered to produce the
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  Speaker 1: administrative record by the existing deadline of October 15, 2026.
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  Speaker 1: This document was dated October 8, 2026, and it was signed...
• 9:05
  Speaker 1: by Emily D. Gilman. All right, folks. Well, this battle
• 9:10
  Speaker 1: is fully underway. And I expect Katie Fang to keep
• 9:14
  Speaker 1: her foot on the gas. Remember, she's an attorney herself.
• 9:18
  Speaker 1: So she knows all the ins and outs. She knows
• 9:20
  Speaker 1: the tricks. And she knows the kind of nonsense that
• 9:22
  Speaker 1: Todd Blanche is going to get up to. So I'm very,
• 9:26
  Speaker 1: very interested to see where this all ends up. And
• 9:29
  Speaker 1: I think it's a very important case moving forward. So
• 9:33
  Speaker 1: as soon as this information hits the docket, I'll make
• 9:35
  Speaker 1: sure that we add it to the catalog. All the
• 9:38
  Speaker 1: information that goes with this episode can be found in
• 9:41
  Speaker 1: the description box.