Latest / The Epstein Chronicles / DOJ Moves to End Katie Phang’s Epstein Files Lawsuit (Part 4) (10/4/26)

Transcript

DOJ Moves to End Katie Phang’s Epstein Files Lawsuit (Part 4) (10/4/26) · The Epstein Chronicles

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  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
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  Speaker 1: where we left off with a lawsuit filed by Katie
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  Speaker 1: Fang against Todd Blanche and Todd Blanche's memo in response. First,
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  Speaker 1: plaintiff's complaint does not even meaningfully identify what agency action
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  Speaker 1: she seeks to compel. She does not identify with any
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  Speaker 1: level of specificity what document she believes must be produced
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  Speaker 1: or unredacted. Instead, she asserts, broad grievances in an attempt
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  Speaker 1: to compel compliance with broad statutory mandates. Second, even if
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  Speaker 1: plaintiff's complaint were more specific, she cannot identify any specific
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  Speaker 1: statutory command that defendant has violated, let alone clearly violated.
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  Speaker 1: The EFTA does not contain detailed document production rules. It
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  Speaker 1: plainly left some aspects of the review and production process
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  Speaker 1: to the department's discretion, and matters committed to agency discretion
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  Speaker 1: are not subject to judicial review. Citizens for Responsible Ethics
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  Speaker 1: in Washington vs. Federal Election Committee, D.C., 2021, holding that
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  Speaker 1: the Federal Election Campaign Act did not govern the ways
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  Speaker 1: in which the Federal Election Commission could exercise its discretion
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  Speaker 1: and thus could not be subject to judicial review. Plaintiff
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  Speaker 1: disputes how the department carried out its statutory functions, without
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  Speaker 1: pointing to any unequivocal command that has been violated. For example,
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  Speaker 1: the EFTA- contains no specific command with respect to the
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  Speaker 1: review of production of foreign language documents specifically, which would
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  Speaker 1: require immense Department resources. Whether Congress intended the Department to
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  Speaker 1: engage in that effort is essentially a policy question best
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  Speaker 1: left to the political branches. Indeed, the Department advised Congress
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  Speaker 1: of its decision not to review and produce such documents
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  Speaker 1: because doing so is not practicable and responsiveness to the
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  Speaker 1: AFTA's requirement cannot be readily determined for these documents. Department
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  Speaker 1: of Justice Epstein Files Transparency Act Production of Department of
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  Speaker 1: Material at 5. And Congress took no action to in response,
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  Speaker 1: even in the proposed EFTA 2, does not address such documents,
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  Speaker 1: suggesting defendant has fulfilled his obligation in response to these
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  Speaker 1: foreign language documents. Yet plaintiffs demand would poise the court
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  Speaker 1: to assume the role of supervisor of the review and
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  Speaker 1: production of such documents. Third, To the extent plaintiff seeks
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  Speaker 1: to compel compliance with the Federal Register reporting requirement, the
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  Speaker 1: Department has published its notice in the Federal Register and
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  Speaker 1: therefore complied with the Act's requirement, mooting this aspect of
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  Speaker 1: plaintiff's claims. Additionally, to the extent plaintiff seeks to compel
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  Speaker 1: the Department to act on a particular time frame with
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  Speaker 1: respect to any form of the inactions she is alleging,
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  Speaker 1: her claim faces additional hurdles. In determining whether immediate action
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  Speaker 1: is legally required, Courts do not merely assess whether a
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  Speaker 1: defendant is compliant with the statutory obligation, instead resolving a
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  Speaker 1: Section 706-1 claim, which is a nuanced task, requiring consideration
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  Speaker 1: of the particular facts and circumstances before the courts. In
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  Speaker 1: the D.C. Circuit, courts evaluate six factors. 1. Time agencies
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  Speaker 1: took to make decisions must be governed by a rule
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  Speaker 1: of reason. 2. Where Congress has provided a timetable or
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  Speaker 1: other indication of the speed with which it expects the
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  Speaker 1: agency to proceed in the enabling statute, that statutory scheme
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  Speaker 1: may supply content for this rule of reason. 3. Delays
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  Speaker 1: that might be reasonable in the sphere of economic regulation
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  Speaker 1: are less tolerable when human health and welfare are at stake. 4.
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  Speaker 1: The court should consider the effect of expenditure delayed action
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  Speaker 1: on agency activities of a higher or competing priority. 5.
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  Speaker 1: The court should also take into account the nature and
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  Speaker 1: extent of the interest prejudicial by delay. 6. The court
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  Speaker 1: need not find any impropriety lurking behind agency lassitude in
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  Speaker 1: order to hold the agency action is unreasonably delayed. Here
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  Speaker 1: the track factor is cut against plaintiff. Although the EFTA
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  Speaker 1: contained a 30-day deadline for disclosure, the violation of statutory
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  Speaker 1: deadline is not this positive. Equitable relief does not necessarily
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  Speaker 1: follow a finding of violation. Respect for the autonomy and
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  Speaker 1: comparative institutional advantage of the executive branch has traditionally made
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  Speaker 1: courts slow to assume command over an agency's choice of priorities.
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  Speaker 1: In Barr Laboratories, Inc., 930 F. 2D 7274 D.C. Circuit Court 91,
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  Speaker 1: that is especially true in these circumstances. where Congress reporting
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  Speaker 1: requirements clearly contemplated an ongoing process that would involve give
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  Speaker 1: and take between the branches. See AM, Hospital Association v. Burwell, D.C.
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  Speaker 1: Circuit 2016. Deadlines should not be treated as mandatory when
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  Speaker 1: Congress appeared to contemplate additional decision-making following deadlines. Human health
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  Speaker 1: and welfare are not at stake in the relevant sense,
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  Speaker 1: and expediting action here, the review and production of thousands
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  Speaker 1: of documents, that are in different foreign languages, will detract
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  Speaker 1: from other department priorities. Although the track factors are often
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  Speaker 1: pertinent in the context of agency delay, rather than withholding
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  Speaker 1: of agency action, at a minimum, the factors should be
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  Speaker 1: considered before the departments required to immediately initiate review and production,
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  Speaker 1: the full relief that plaintiff seeks. 3. Defendant has not
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  Speaker 1: violated the EFTA by applying redactions. The department has undertaken
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  Speaker 1: extensive efforts to comply with the EFTA's statutory obligations in
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  Speaker 1: a manner that is both transparent and protective of victim privacy,
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  Speaker 1: and plaintiff's demands for the disclosure of redacted information and
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  Speaker 1: production of foreign language documents have no basis in law.
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  Speaker 1: The EFTA contemplates that the department may withhold or redact
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  Speaker 1: with segreble portions of records that contain the personally identifiable
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  Speaker 1: information of victims. EFTA at Section 2C. Consistent with the
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  Speaker 1: statutory authority, the department has sought to prevent victim P2
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  Speaker 1: from becoming public even in instances where the victims eventually
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  Speaker 1: became complicit or engaged in reprehensible activity or communication. The
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  Speaker 1: government appreciates the court's recognition that redactions protect victims. Information
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  Speaker 1: are appropriate, order number two. Further, the Privacy Act carries
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  Speaker 1: both civil remedies for people whose rights are violated under
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  Speaker 1: it at a monetary cost to the government and criminal
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  Speaker 1: penalties for those who willfully violate it. C5 U.S. Code
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  Speaker 1: Section 552A. Thus, in administering the EFTA consistent with the
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  Speaker 1: Privacy Act, the Department has left redacted individual email addresses
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  Speaker 1: to avoid clearly unwarranted invasion of personal privacy. Section 3
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  Speaker 1: Report 2. You must also redact P2 that may be
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  Speaker 1: present in the document. Yet, while the Department has made
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  Speaker 1: good faith efforts to comply with the requirements of this
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  Speaker 1: applicable statute, Plaintiff simply demands that the government disregard the
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  Speaker 1: Privacy Act's requirement without any supporting citations or even argument.
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  Speaker 1: Plaintiff has suggested that the EFTA was enacted later in time.
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  Speaker 1: It overrides the Privacy Act's protections, ECF number 20 at 7.
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  Speaker 1: But that's not the law. When confronted with the two
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  Speaker 1: acts allegedly touching on the same topic, the court must
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  Speaker 1: strive to give effect to both. In this circuit, there
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  Speaker 1: is a strong presumption that repeals, by implication, are disfavored
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  Speaker 1: and that Congress will specifically address pre-existing law when it
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  Speaker 1: wishes to suspend its normal operation in a later statute,
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  Speaker 1: should control. AM Forest Council v. U.S., 2023. Thus, without
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  Speaker 1: an express congressional command, the EFTA and Privacy Act must
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  Speaker 1: be read in concert, not conflict, and the court cannot
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  Speaker 1: presume that through enacting EFTA Congress waive the Privacy Act.
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  Speaker 1: For these reasons, plaintiff's claims fail. because it would require
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  Speaker 1: the exposure of appropriately redacted victim information under the EFTA,
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  Speaker 1: as well as contravene the requirements of the Privacy Act
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  Speaker 1: for non-victims. Section 4. The EFTA does not require the
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  Speaker 1: production of foreign language documents. As stated above, the EFTA
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  Speaker 1: contains no specific commands regarding the review and production of
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  Speaker 1: foreign language documents, and producing these documents would require immense
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  Speaker 1: department resources. Given that the very responsiveness of such documents
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  Speaker 1: cannot quickly be ascertained, the Department advised Congress that production
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  Speaker 1: of such foreign language documents is not practicable because it's
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  Speaker 1: beyond the capacity of first-level reviewers. Whether Congress intend to
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  Speaker 1: require the Department to translate, determine responsiveness, and produce such
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  Speaker 1: foreign language documents is a political question best left to
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  Speaker 1: the political branches. The fact that Congress has taken no
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  Speaker 1: additional action regarding the production of these foreign language documents
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  Speaker 1: suggests that it thinks the department has fulfilled its obligations
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  Speaker 1: with respect to the documents. Indeed, even the proposed EFTA 2,
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  Speaker 1: there is no mention of these foreign language documents, and
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  Speaker 1: the EFTA itself gives the Attorney General the discretion to
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  Speaker 1: withhold or redact certain categories of information. EFTA Section 2C1A-E.
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  Speaker 1: As such, defendant has complied with the EFTA's requirement regarding
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  Speaker 1: foreign language documents because the law is silent, on the
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  Speaker 1: issued documents and the vests the Attorney General, with discretion
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  Speaker 1: in redacting and withholding documents. For these reasons, the court
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  Speaker 1: should enter judgment for the defendant on the relevant claims
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  Speaker 1: in Counts 1 and 2. 5. The Department has fulfilled
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  Speaker 1: its reporting requirement under the EFTA. Section 3 of the
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  Speaker 1: EFTA requires the Attorney General to submit a report to
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  Speaker 1: Congress which lists all categories of records released and withheld,
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  Speaker 1: a summary of redactions made, including legal basis, and a
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  Speaker 1: list of all government officials and politically exposed persons within
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  Speaker 1: the files. EFTA Section 3. On February 14, 2026, the
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  Speaker 1: Department fulfilled this obligation by sending a letter to Congress
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  Speaker 1: which laid out the categories of records released and withheld,
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  Speaker 1: a summary of redactions made in legal basis for doing so,
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  Speaker 1: and a list of all government officials and politically exposed persons.
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  Speaker 1: Section 2 of the EFTA further requires the Department to
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  Speaker 1: submit a report to Congress listing all categories of records
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  Speaker 1: released and withheld and a summary of redactions made to
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  Speaker 1: the public and in a redaction log in the Federal Register.
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  Speaker 1: And on August 27, 2026, the Department likewise fulfilled these
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  Speaker 1: obligations by publishing in the Federal Register a report describing
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  Speaker 1: all categories of records released and withheld, a summary of
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  Speaker 1: the redactions made, including the legal basis, and a list
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  Speaker 1: of all government officials and politically exposed persons named or
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  Speaker 1: referenced in the reviewed material. Because defendant has fulfilled this
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  Speaker 1: reporting requirement under the EFTA, the court should enter judgment
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  Speaker 1: for the defendant on counts 1 and 2. Section 6.
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  Speaker 1: Plaintiff has failed to meet the high burden of an
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  Speaker 1: ultraveris claim. In her complaint, plaintiff also recasts her APA claims,
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  Speaker 1: but that effort similarly falters. An ultraveris claim is essentially
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  Speaker 1: a Hail Mary pass, and in court, as in football,
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  Speaker 1: the attempt rarely succeeds. To sufficiently allege a claim, the
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  Speaker 1: plaintiff must aver, 1. The statutory preclusion of review is
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  Speaker 1: implied rather than expressed, 2. There is no alternative procedure
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  Speaker 1: for review of the statutory claim, and 3. The agency
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  Speaker 1: plainly acts in excess of its delegated power and contrary
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  Speaker 1: to specific prohibition in the statute that is clear and mandatory.
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  Speaker 1: The third requirement is especially demanding. Only error that is
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  Speaker 1: patently a misconstruction of the pertinent statute that disregards a
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  Speaker 1: specific and unambiguous statutory directive or that violates some specific
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  Speaker 1: command of a statute will support relief. In other words,
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  Speaker 1: an agency violates a clear and mandatory statutory command only
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  Speaker 1: when the error is so extreme that one may view
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  Speaker 1: it as a jurisdictional or nearly so. Plaintiff cannot meet
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  Speaker 1: the demanding standard. Here, as discussed above, there is an
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  Speaker 1: alternative procedure for review of the statutory claim. See Ray 249.
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  Speaker 1: As a general rule, the FOIA is the exclusive remedy
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  Speaker 1: for obtaining improperly withheld agency records. Additionally, plaintiff acknowledges that
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  Speaker 1: the EFTA authorized the Attorney General to withhold or redact
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  Speaker 1: certain portions of records. Ultimately, plaintiff's claims amount to nothing
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  Speaker 1: more than a generalized grievance with the Attorney General's exercise
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  Speaker 1: of that authority. A disagreement with how the Attorney General
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  Speaker 1: exercised discretion granted by statute does not transform an otherwise
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  Speaker 1: lawful act into an ultraveris one. At a minimum, there
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  Speaker 1: is no clear and mandatory statutory command that defendant is violated. Accordingly,
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  Speaker 1: because plaintiff fails to come close to a meeting the
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  Speaker 1: high bar of an ultraveris claim, the court should enter
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  Speaker 1: a judgment for the defendant on count four. Part 7.
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  Speaker 1: Plaintiffs claim under the declaratory judgment act fails as a
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  Speaker 1: matter of law. Plaintiffs claim under the declaratory judgment act
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  Speaker 1: likewise fails as a matter of law, for the reasons
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  Speaker 1: stated above. Therefore, defendant's motion for judgment on the pleadings
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  Speaker 1: should be granted with respect to the Declaratory Judgment Act count. Conclusion.
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  Speaker 1: For the reasons above, defendant's motion for judgment on the
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  Speaker 1: pleadings should be granted. This document was signed by Stanley
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  Speaker 1: Woodward and Andrew J. Block and it was dated October 1st, 2026.
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  Speaker 1: All the information that goes with this episode can be
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  Speaker 1: found in the description box.