The morning session of court in the East Potomac Golf Course lawsuit with President Donald Trump's administration welcomed Department of the Interior chief of staff Greg Wischer.
Wischer couldn't be found last Monday when Judge Ana Reyes demanded that National Park Service and DOI staff come to court to testify about what was going on. Last week, the judge was furious that her orders were being ignored. By Monday, it was clear she was just as annoyed with the government lawyers. However, she didn't yell at them in the way that she had during last week's hearing.
Wischer's testimony began, and Stanley Woodward, associate attorney general of the United States, objected to several questions from both the plaintiffs and the judge, saying the discussion was covered by attorney-client privilege.
A lawyer was ultimately added to several email exchanges, Lawfare's Roger Parloff revealed in his reporting on the Monday hearing.
"We are asserting privilege," Woodward said after everyone returned from a short break. He said that the matter was under litigation when the email exchanges and meetings took place.
"So, it was DOJ made the decision to notify the court about the tree plan on timing it did; not Interior?" the judge asked.
"I don't know. I can find out," Woodward responded.
"I do want to know," the judge said.
"So there was an understanding that [Tree Management Plan] TMP might be relevant to litigation?" the judge asked.
"Absolutely," Woodward replied. "Also the deliberative process privilege. There is a decision on Oct. 9. All decisions that lead up to that are deliberative. It's my understanding his testimony will be he was going fast and hard on all projects."
"Just a massive coincidence that all this happened?" the judge asked.
Woodward claimed both could be true.
"No, both can't be true. We're not dealing with quantum physics here," the judge said.
"There's an email that does not have attorneys on them. I don't know if that will satisfy counsel. He's not going to say TMP was to execute some broader golf course plan," Woodward said.
"There's no universe where all this happens [that way] ... there just isn't. If you're okay with him answering that question," the judge continued.
Woodward said he wanted to confer with the Justice Department counsel to make sure he's OK with having privileged discussions that he just had with the judge, explained Parloff.
Longtime lawyer Abbe Lowell explained that it's his understanding that "on the deliberative process privilege" that "privilege disappears if there is any reason to believe that government conduct has occurred."
Typically, attorney-client privilege would be between an attorney and their client. If the client is the American government, the question is whether that side-steps open-records laws meant to ensure government transparency.
The judge asked about it, but Lowell said he was only beginning to sort through the research. He thinks it's much broader than that.
Over the weekend, the Trump administration attempted to have the judge recuse herself from the case, saying that she was too overly emotional. It didn't go over well. In her response, she rebutted the argument line by line and refused to step down.
