Federal Judge Weighs Ordering DOJ to Release Millions of Epstein Documents

0:00Michael Popok:Welcome to a special edition of Legal AF. We're going to focus on the Epstein files because Judge Sullivan in the District of Columbia has focused on the Epstein files. We now have a confirmed attorney general in Todd Blanche, just gave his first set of press conferences and interviews over the weekend. And for some reason, I don't know why mainstream media did not get into why he's not following the orders and directions of a federal judge about the production of whole categories of Epstein files. But we're going to cover it, including what really went down in the courtroom in front of Judge Sullivan and why the judge's directions towards Katie Fang's side of the case.

0:45Michael Popok:Remember the intrepid journalist Katie Fang bringing the case along with Public Integrity Project. Why the comments about who's going to draft the next round of papers, why that indicates to me that the judge is siding and is going to ultimately side with Katie Fang against the Department of Justice and Todd Blanch. And I wanted to kick all this around with, couldn't think of anybody better. I mean, Katie Fang is good too, and I love having Katie on, but we're bringing back Brendan Ballou, whose Public Integrity Project are the lawyers for Katie in the case. Brendan was in the courtroom for the last hearing, so he'll give us that color that we may have missed from other reporting.

1:25Michael Popok:And let's bring on Brendan to talk about this case. Hi, Brendan. Hey, thanks so much for having me. Of course. Okay, so here's what I heard. Stop me if I'm wrong. I heard that Andrew Block, who had for the Department of Justice, who they trotted out the same guy in Judge Brinkham's courtroom in the Jan 6 case. He's the guy that my followers and listeners will remember. I said that Judge Brinkham started her hearing about the Jan 6 fund with, you're a very brave man, Mr. Block. He came in alone, usually the Department of Justice travels in packs. He came in by himself to make these arguments, and it all went downhill for him there.

2:06Michael Popok:Doesn't sound like it went much better for him in arguing about why he did not bring with him the documents and evidence that the judge required in order to complete his order to show cause inquiry. So why don't you frame it for like how you got there, the judge's order, I can read from it at the appropriate moment. And then what you observed went down as the judge made the comment that we've reported on, which is the judge saying two things to block. One, he's basically bringing up the specter of contempt, saying, it's a promise, not a threat, and look me up. It was almost that moment where the coach for Indiana said, you can Google me.

2:52Michael Popok:Look me up. I've held prosecutors in contempt before in my courtroom. And when Block said a version of, well, judge, if you could just issue an order, we would know what to do. He said, I already did that. Did you want me to also put in it, I mean it this time. Talk about what went down at that hearing. It was a pretty crazy two hours, you know, so just to set the baseline here, the department, you know, we want a preliminary injunction requiring DOJ to produce a whole bunch of information or show cause why they couldn't. DOJ has just repeatedly failed to comply with the court's order here and has failed to reply to comply with follow on orders.

3:29And so this was really a chance for the judge to bring the parties in and understand, OK, why Department of Justice are you not following these orders and what am I, Judge Sullivan, going to do about it? And to your point, you know, I want to be diplomatic here. I want to be respectful. But it was a shocking sort of experience for me having been at the Department of Justice to see the arguments that they were making or the arguments that they weren't making in that, you know, they really didn't seem to have a plan for the hearing or for what the judge's arguments were going to be or questions were going to be sort of basic questions about the case, what their responses were.

4:08there were just long periods of silence in the courtroom as the Department of Justice, I think, struggled to articulate why it couldn't follow the law here. So I had never really been in a hearing like that, where one side was just silent on their own arguments, just saying that they were going to do things and wouldn't explain why. And I think that made the follow-on conversation, which was Judge Sullivan's essentially half-hour-long description of having previously found the Department of Justice in contempt more than a decade ago, I think really chilling because I think he really made clear the profound professional consequences that follow you if you are in fact held in contempt.

4:47I am certain that Judge Sullivan does not want that to happen, but I am hopeful that his message resonated with the government lawyers.

4:56Michael Popok:What you described, I used to call in the business close shoelace examination. It's when your opponent is basically staring at his shoes for long periods of time, awkward silence filling the room. And it sounds like that's exactly what happened. I'm not that shocked, although I'm not as diplomatic as you. I have a working theory when they send in people like Drew Ensign or because Drew Ensign was the Andrew Block before Andrew Block in the immigration cases or others. I think they purposefully send in people who are willing to not show up prepared, who are willing to, despite their law licenses, to stand in the well of a federal court, look a federal judge in the eye and just say, I don't know.

5:43Michael Popok:I didn't look it up. I didn't bring it with me. I didn't do it. And Andrew Block, I mean, the first time I heard him being excoriated by a judge, I kind of felt slightly sorry for him, but I don't any longer. I think he's just the person that they send in to be the pinata of the moment. because the people that should show up in a courtroom like that and answer for it, like Todd Blanch or even Stan Woodward, refuse to show up. Yeah, you know, it's interesting. You know, independent of any one lawyer, one of the things that's been so shocking about this particular case is that the Department of Justice very clearly wants to win, but is very unwilling to make any arguments to win.

6:17You know, that was what was happening at the hearing today. It's also been what's happening across the entire case. You know, when we move for the preliminary injunction, and I should really call out my colleague Sam Ward-Packard, who really came up with the whole PI strategy, Emily Gilman, who argued the case in front of Judge Sullivan last week. The Department of Justice's response, at no point did they argue that they were complying with the law, which I thought was pretty shocking. You would think you would want to at least nominally say, look, Judge, we are actually following the law here.

6:50They didn't even try to do that. By and large, the same thing happened in this hearing. There really was not a sustained effort to argue that the Department of Justice was complying with the court's orders. Instead, there were sort of variations, and I don't think that they wanted to say this particularly explicitly, but there were variations on the theme of, we don't believe that we need to follow these orders, or we have reinterpreted them so that we don't need to follow them. Again, it's something that I've really never seen the Department of Justice personally upfront do before, and it was incredible to watch.

7:21Michael Popok:And Judge Sullivan, despite his giving a lecture, You know, I did compare it to the coach of Indiana when he was hired as a football coach. He said, why do you think you can turn the program around? This was before he won the national championship that year, going undefeated. He said, Google me. And then the judge spent a fair amount of time talking about the Ted Stevens case, the late senator from Alaska, and how he found federal prosecutors to be in contempt, as you said, as a life lesson for those like Andrew Block in the room. I also think the judge has been infinitely patient with him. I mean, there is at least twice as many orders as I think a lot of judges would have already issued before moving to either some version of contempt or this hearing.

8:05Michael Popok:Every time I think he's about to lower the boom, knowing Judge Sullivan, there always seems to be like yet another order that gives the Department of Justice one more chance. I mean, I think he could have shortened this whole thing. He could have been here a couple of orders ago. Yeah, you know, I think a lot of this can be understood as insulating any ultimate decision from subsequent appeals. So, you know, when we talk about this case, you know, in public and interviews on social media, understandably, a lot of people, you know, sort of throw up their hands in despair and say the government's never going to comply, the government's never going to comply.

8:39Well, two things to that. One is, actually, they are doing things that they weren't doing before. They actually have turned over documents to the court for review. They actually turned over more documents on the day of the hearing. So, you know, you're making incremental progress, but I think part of the reason why these sorts of cases in particular, the judges are giving the Department of Justice a fair amount of rope here or a fair amount of leeway is ultimately if, you know, to use your phrase, if you're going to lower the boom at some point, you want it done in a way where you've shown extraordinary opportunities for the Department of Justice to follow the law so that it will be very difficult for them to win on appeal and get any sort of sanctions or contempt citation overturned.

9:20Michael Popok:And the interesting thing, I totally agree with you. And the interesting thing for me is that what's missing from the order and therefore from the hearing, he's not asking them, he's not giving them another chance about the translation of the foreign language documents in this International Child Sex Trafficking Act, right? He's going to make a ruling about that. See, some people that read the order was like, this is very interesting. I'm like, because he's already got what he needs in broad categories. These are just the two or three that he wants the hearing over. But the Department of Justice should not be surprised when he whacks them for having failed to translate the documents despite court order.

10:03Yeah. And I think it's important to remind your audience here that this is the preliminary injunction and this is the order on the preliminary injunction. This is actually just about a small set of the overall documents that are at issue here. So I agree. I think Judge Sullivan is teeing up some sort of ultimate order on this sort of initial set. But ultimately, we're talking about millions of documents that need to be properly reviewed that we really can't trust the Department of Justice did a good job on or a complete job or an honest job on. And so I think what we need to be doing is getting to the substance of this case, get to what's called summary judgment, as you know, so that we can try to get the ultimate relief, which would be the appointment of something like a special master to oversee the Department of Justice work here, make sure that they're actually compliant.

10:47But I will say, you know, every time the Department of Justice evades, fails to comply, fails to be completely transparent, it's going to make it a lot easier for us to get that ultimate remedy. Absolutely.

11:01Michael Popok:And before we turn to how you get summary judgment and the missing answer, the missed deadline by the Department of Justice in a case as literally like they fell asleep under a tree like Rip Van Winkle and forgot that they had to answer your complaint. We'll talk about the procedural issues there, but talk about, because you and I talked before off in prep, something very interesting happened. And I've only had this happen to me in a couple of times in my career. One involving Kanye West, in which The judge turned to me and ignored the other side and said, you are going to draft some documents in this case for my review.

11:42Michael Popok:Should I show it to the other side, judge? That won't be necessary. Talk about what happened in terms of the final instructions of the judge about advancing this case. Yeah. So the judge has asked us to draft a proposed order here. As I understand it from the judge's oral ruling, we are not required to confer with the Department of Justice in drafting the proposed order here. So, you know, really he's leaning on us alone in order to figure out what his actions are here. Again, as the lawyer in the case, I want to be, you know, really diplomatic here, but I do think it speaks to just a breakdown in credibility, not of a specific lawyer, but of the Department of Justice in general in this case that he's asking just one side to craft the order.

12:24Obviously, I think that bodes pretty well for us. But I also think in a broader sense, it really bodes very poorly for DOJ across not just this case, but a lot of cases.

12:33Michael Popok:How can you trust them? I mean, for me, it shows that the judge sees one honest advocate in the room and it's not the Department of Justice. On the getting to the broader case, because you're right, myopically, and even the way we cover it here on the network, Sometimes we lose the sight of the forest for the trees. While this battle is about a small identifiable subset of categories of documents from the Epstein files, the larger war is to get, as you said, millions of pages through summary judgment. Sometimes in the reporting that gets lost. In order to get there, you got to get the other side generally to either, and I'll mention something because I'm not diplomatic, either get them to answer the suit because just for a tutorial for our audience, there's two major pleadings in the case.

13:27Michael Popok:There's the initial complaint that starts the case, which has causes of actions or claims, and then there's the answer of the defendant. And you normally have to have those two things in place in order to eventually move for summary judgment. Now, you were very nice on your side because I would have moved for a default and let them argue against the default instead of letting them file a Nunk Pro Tunk order. But that's me. It's easy for me to say F them. They missed their deadline, not by a little, but by a lot. File the default motion and let them explain what good cause they have. I'm sure you had your reasons for not doing it that way.

14:01Michael Popok:But explain the missed deadline, the opportunity to move for a default, and what you are asking the judge to order. So, you know, the basics in civil litigation is, you know, if you're the defendant, you have to answer the complaint. You have to admit or deny the allegations. The Department of Justice just straight up blew its deadline here. I mean, you have a very sophisticated viewer audience here. I'll just like super inside baseball sort of guessing here. I think what happened is the case got transferred to the associate attorney general's office, which has sort of been managing it. I imagine because that, you know, normally the associate attorney general doesn't really handle individual litigation.

14:39I'll bet you they just don't have a case management system. So, you know, they probably just don't have a calendar. So I'm not sure that this was a strategic move. I think it might have just been oversight on their part. But once they were made aware of the mistake, rather than being willing to promptly file an answer, they seem to be fighting it.

14:55Michael Popok:I was going to say, and rather than say, thank you for letting us know, we'll get our answer on file in the next day or so. They took a pot shot at you guys in their nunc pro tunc motion, which is an which is an admission that they've missed the deadline. They need the court to roll back the time machine on. And rather than say, thank you for bringing it to our attention, we'll answer. No, they're trying to get an advantage because they let it. I'm like, are you effing kidding me? Get your answer on file. So what are we just waiting for the judge to rule on that? Yeah. And the judge indicated that he's developing his opinion on that one.

15:26So we're just waiting there. Yeah.

15:27Michael Popok:So to just summarize here, Katie Fang's lawsuit is she's not hitting home runs with you guys. She's hitting doubles every day in that case on uninterrupted success, which we continue to wish you. You're certainly on the right side of the angels here in support of the survivors and of good and free journalism. And we're waiting on a judge's order on what just went down in your hearing after you guys submit some proposals and then an answer and likely a motion for summary judgment maybe in your future, if not a trial setting, right? Absolutely. And we'll keep you updated on all of it. It's always a pleasure to get to talk with you because you really get in the weeds on this stuff.

16:07It's a lot of fun to talk about. Thank you.

16:08Michael Popok:Brendan Ballou, Public Integrity Project. His group is representing Katie Fang in her suit on behalf of America and the world against Todd Blanche, Department of Justice, about the Epstein documents. Thank you for being with us, Brendan. Can't wait to have you back to update our audience again in the near future. Thank you. You're with Michael Popak. You're on Legal AF. Take a minute, hit that free subscribe button, help us to continue to grow our pro-democracy channel. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack.

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