Latest / The Epstein Chronicles / Todd Blanche Argues For A Stay In The Katie Phang Epstein Related Lawsuit (Part 1) (9/23/26)

Transcript

Todd Blanche Argues For A Stay In The Katie Phang Epstein Related Lawsuit (Part 1) (9/23/26) · 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 start taking
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  Speaker 1: a look at Todd Blanche and his argument as to
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  Speaker 1: why he should get that stay. Case number 126-CV-1417. Katie
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  Speaker 1: Fang Plaintiff vs. Todd Blanche in his official capacity as
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  Speaker 1: Attorney General of the United States, the Defendant. Defendants will
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  Speaker 1: apply in support for motion for a partial stay pending appeal.
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  Speaker 1: Plaintiff's opposition confirms that a stay pending appeal is warranted
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  Speaker 1: to preserve the status quo and facilitate appellate resolution of
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  Speaker 1: the important questions presented. Plaintiff seeks to prevent the D.C.
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  Speaker 1: court from addressing whether she can privately enforce the Epstein-Files
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  Speaker 1: Transparency Act. But in support of that position, plaintiff primarily
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  Speaker 1: relies on inapt procedural arguments. When it comes to the
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  Speaker 1: stay factors, plaintiff has little to offer. She does not
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  Speaker 1: dispute that denying a stay would require the review and
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  Speaker 1: production of documents and could therefore have the effect of
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  Speaker 1: mooting an appeal. That would severely and irreparably harm defendant,
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  Speaker 1: and on the merits plaintiff merely points to her prior argument.
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  Speaker 1: At a minimum, and especially given the Congress is considering
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  Speaker 1: amending the EFTA to add private right of action, plaintiff
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  Speaker 1: cannot dispute that defendant has raised serious questions that warrant
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  Speaker 1: a meaningful opportunity for appellate review. The court should grant
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  Speaker 1: the stay pending appeal. In any event, plaintiff does not
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  Speaker 1: address defendant's alternative request for a temporary stay while the D.C.
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  Speaker 1: Circuit considers a motion for a stay pending appeal. Consistent
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  Speaker 1: with the court's prior approach, that issue is conceded. ECF 16-36,
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  Speaker 1: treating defendant's merit arguments as conceded for purposes of plaintiff's
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  Speaker 1: motion for a prelim injunction, in reliance on DDC Local
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  Speaker 1: Rule 7b. Defendant previously sought a ruling by September 21, 2026,
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  Speaker 1: at 5 p.m. ET. In light of the briefing scheduled
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  Speaker 1: set by the court, defendant now requests a ruling as
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  Speaker 1: soon as practicable and by September 21, 2026, at 8 p.m. ET,
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  Speaker 1: so the defendant may file a motion in the D.C.
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  Speaker 1: Circuit in advance of this court's September 21 deadline. Argument 1.
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  Speaker 1: the relevant factors warrant a stay pending appeal. A. Defendant
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  Speaker 1: will suffer severe irreparable harm without a stay. The requirement
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  Speaker 1: that the defendant initiate review and production of foreign language
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  Speaker 1: documents by September 24th will have the effect of irreversibly
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  Speaker 1: altering the status quo. See Adams v. Vance, 1978. Indeed,
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  Speaker 1: failure to grant a stay could entirely destroy appellant's rights
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  Speaker 1: to secure meaningful review. Providence Journal reports, Company v. FBI,
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  Speaker 1: 1st Circuit, 1979, because the review and production of such
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  Speaker 1: documents would effectively moot any appeal, Center for National Security
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  Speaker 1: Studies v. U.S. Department of Justice, DDC, 2002. Plaintiff does
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  Speaker 1: not meaningfully argue otherwise. Instead, all plaintiff musters is that
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  Speaker 1: the court has left it to the defendant's discretion which
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  Speaker 1: documents in fact must be produced, ECF 47 at 10.
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  Speaker 1: It's unclear what plaintiff means by this. The court has
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  Speaker 1: ordered defendant to review and produce documents that may be
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  Speaker 1: subject to production under the EFTA. That the court has
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  Speaker 1: not specifically identified which documents in fact must be produced,
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  Speaker 1: ECF 47 at 10, does not change the fact that
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  Speaker 1: such production would moot appeal. Plaintiff also downplays the resources
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  Speaker 1: required to review and produce documents as administrative burdens, ECF
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  Speaker 1: 47 at 10, but that ignores the actual nature of
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  Speaker 1: the irreparable harm at issue. It's not just a matter
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  Speaker 1: of allocating resources, including to train new or existing staff,
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  Speaker 1: though those burdens are irreparable and severe. District of Columbia
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  Speaker 1: versus USDA, DDC 2020. Holding that state government entity showed
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  Speaker 1: irreparable harm on that basis. It is also that the
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  Speaker 1: government is harmed by an improper intrusion by a federal
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  Speaker 1: court into the workings of a coordinate branch of government.
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  Speaker 1: Make the road New York versus Mullen. Indeed. plaintiff's irreparable
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  Speaker 1: harm argument appears to contemplate a need for a close
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  Speaker 1: judicial oversight of the review and production process. The court has,
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  Speaker 1: for now, left it to defendant's discretion. That nod to
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  Speaker 1: judicial supervision of the executive branch is all the more
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  Speaker 1: reason to stay these proceedings pending appeal. B, defendant is
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  Speaker 1: likely to succeed on the merits, and at least raises
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  Speaker 1: serious questions. Given the severe irreparable harm that defendant faces,
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  Speaker 1: defendant need only to show that a serious legal question
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  Speaker 1: is presented on the merits. Respectfully, defendant is likely to
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  Speaker 1: succeed on the merits because the court's order rests on
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  Speaker 1: several legal errors. Plaintiff cannot enforce the EFTA. She lacks
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  Speaker 1: Article III standing and a right of action under the EFTA, APA,
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  Speaker 1: or otherwise. The court's order improperly gives plaintiff all the
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  Speaker 1: relief she seeks at the prelim injunction stage. And although
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  Speaker 1: a party cannot forfeit arguments at that stage, the order
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  Speaker 1: leads to the same result. The parties disagree about those errors,
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  Speaker 1: but at a minimum, the order implicates several novel issues
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  Speaker 1: of first impression that weigh in favor of a stay.
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  Speaker 1: Plaintiff does not meaningfully argue otherwise. Instead, plaintiff raises two
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  Speaker 1: merit points. Neither cuts against the stay pending appeal. First,
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  Speaker 1: plaintiff emphasizes that she's suing under the APA, ECF at 8.
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  Speaker 1: Defendant stay motion addresses that contention at length. If a
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  Speaker 1: general right of action were available to any interested person
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  Speaker 1: under the APA, it's unclear why Congress would be contemplating
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  Speaker 1: amending the EFTA to provide a narrower right of action
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  Speaker 1: for victims and certain officials. In plaintiff's view, FOIA cannot
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  Speaker 1: constitute an adequate remedy defeating any APA right of action
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  Speaker 1: because FOIA applicants have been directed to the EFTA, ECF
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  Speaker 1: 47 at 9. But that is not a discrepancy, let
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  Speaker 1: alone a material one. The EFTA required broader disclosure to
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  Speaker 1: the public than FOIA, which contains various exemptions. But FOIA's
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  Speaker 1: disclosure regime still offers relief of the same genre, which
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  Speaker 1: is all that matters. Garcia v. Vilsack, D.C. Circuit 2009.
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  Speaker 1: Plaintiff cannot use the absence of a right of action
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  Speaker 1: and the practical result that a private litigant is unable
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  Speaker 1: to obtain the EFTA records that she wants. To circularly
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  Speaker 1: argue that the APA must provide a right of action
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  Speaker 1: to obtain... Those same records. Second, plaintiff acknowledges the standard
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  Speaker 1: for relief under U.S. Code 5, Section 706-1, which empowers
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  Speaker 1: this court to compel agency action unlawfully withheld or unreasonably delayed.
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  Speaker 1: ECF at 9. Notably, plaintiff does not dispute that the
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  Speaker 1: 706 Section 1 standard as described in Norton v. Southern Utah, 2004,
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  Speaker 1: and Telecoms v. FCC, 1984, should apply to her APA claim. Instead,
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  Speaker 1: plaintiff says it's too late for the correct standard to
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  Speaker 1: be considered in the proceedings. EF 47 at 9, arguing
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  Speaker 1: that the defendant is improperly attempting to expand the record
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  Speaker 1: on appeal. But that is exactly the point. As defendant
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  Speaker 1: has explained, and plaintiff cannot dispute, a party addressing only
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  Speaker 1: issues of prelim relief should not ordinarily be bound by
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  Speaker 1: its abbreviated and only partially informed presentation of the merits.
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  Speaker 1: 11a Charles Allen Wright, and Arthur R. Miller Federal Practice,
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  Speaker 1: 3rd edition, April 2026. Yet if plaintiff obtains all the
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  Speaker 1: relief she seeks in this lawsuit, the prelim injunction stage,
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  Speaker 1: defendant will have effectively been bound to those arguments. To
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  Speaker 1: be sure, defendant has submitted additional points and explanations during
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  Speaker 1: the show cause phase of proceedings, but those unique proceedings
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  Speaker 1: all occurred against the backdrop of the court's June 25th order.
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  Speaker 1: Defendant should not be deemed to have waived or forfeited
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  Speaker 1: defendant's rights to a full merits presentation by engaging in
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  Speaker 1: a show cause process springing from that order. That result
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  Speaker 1: would undermine the court's collaborative spirit in engaging with the
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  Speaker 1: parties on these complex issues. And of course, plaintiff's argument
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  Speaker 1: that the June 25th order provided definitive injunctive relief requiring
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  Speaker 1: immediate compliance, ECF 47 at 5, is contrary to plaintiff's
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  Speaker 1: position that defendant has already had a genuine opportunity to
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  Speaker 1: present arguments regarding a foreign language document beyond those presented
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  Speaker 1: in its opposition of plaintiff's motion for a prelim injunction.
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  Speaker 1: Plaintiff can't have it both ways. 2. Any harm to
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  Speaker 1: plaintiff is outweighed by harm to defendant. The public interest
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  Speaker 1: favors a stay. Issuance of a stay will not substantially
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  Speaker 1: injure plaintiff. She argues that her profession and livelihood depend
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  Speaker 1: on receiving these documents. But to oppose a stay, pending appeal,
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  Speaker 1: which defendant will move to expedite, plaintiff must show harm
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  Speaker 1: resulting from the stay itself. Plaintiff does not even attempt
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  Speaker 1: to do so, nor could she, given her own delay
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  Speaker 1: of nearly four months before moving for a prelim injunction. Regardless,
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  Speaker 1: any unexplained harm plaintiff might suffer pales in comparison with
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  Speaker 1: the harm of defendant potentially losing defendant's appeal rights, among
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  Speaker 1: other harms. The record that plaintiff seeks, they're not going
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  Speaker 1: anywhere and can be reviewed by her in the future,
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  Speaker 1: but they cannot be unreviewed or unproduced, in the future.
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  Speaker 1: The public also has a strong interest in an appellate
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  Speaker 1: resolution of the issues presented. Defendant's only contrary argument invokes
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  Speaker 1: the need for a defendant to comply with the law,
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  Speaker 1: ECF 12. That puts the cart before the horse, because
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  Speaker 1: it emphatically, the province in duty of the judicial department
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  Speaker 1: to say what the law is. Marbury v. Madison 1
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  Speaker 1: Cranch 1803 In this case, the relevant law concerns the
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  Speaker 1: ability of private parties like plaintiff to enforce the EFTA.
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  Speaker 1: The D.C. Circuit should have an opportunity to say what
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  Speaker 1: the law is. All right, folks, we're going to wrap
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  Speaker 1: up right here. And in the next episode, we're going
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  Speaker 1: to finish this bad boy off. All the information that
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  Speaker 1: goes with this episode can be found in the description box.