morning you may perceive of when you're ready thank you your honor may please the court of michael body on behalf of the protect democracy project peach seventy eight of the joint appendix the district court noted that to stand and shares our concern there quote otherwise response of an unprotected materials maybe your corporate it into a document with material prints protected by the presidential communications privilege that's rendering the entire d protected from disclosure the court noted on the pages side it was venturing no opinion as to whether the information we seek here which was featured in the wall or report concerning a conversation between the president and  the director of human say was there was not protected by the president of communications group that is all we are asking for at this stage in the case is where the district court to be able to make a determination about whether the information disclosed in the mall or report as probable obstruction of justice by the president of the united states is were is not within the bounds of the problem or a probable what though what were described this is the  to the head of national security you remember we don't ask it is near is proper but i will say but it was it was a proper for the president the united states to inquire of the status of the investigation when he had in mind possibly firing the f b i director to to inquire observe inquire of the head of n s a which started the russia investigation everybody's on the same page that this memo was in fact just a portion of the conversation it's only documenting a you know one basically one interaction over russia and the president's perception that his interactions with russia were ho by what he thought was an illegitimate investigation so so i'm just not sure that i see why this is a good vehicle for probing more generally into the question whether one might for example have a memo that is free is far ranging and covers many different topics and the memo unit would be in some way unrelated to the material triggering the presidential pardon attorney's office that never went to the white no i'm thinking of a case that the parties didn't cite which is another judicial watch case from this court from two thousand and five enough for thirty two or three hundred and sixty six in holding that it's the nature of the privilege is a kind the contours of a work product not a presidential communications but the argument is that the work product doctrine shields the materials because of the nature of the you know the attorneys function and the analogy here would be that the presidential communications privilege shields the materials because of the nature of the president function and so once you've determined that that the document has that relationship to the basis for the privilege that segregate belittle the it's the scope of the privilege that the st instance the st historical instance of invocation of the presidential communications privilege did not make any distinction on the end of the  potter you seem to be so weaving together two different strands one to the misconduct cases and to segregate ability and is is the basis for your claim of segregate ability is that there is reason to think that part of this memo documents potential obstruction of justice and that to the extent that it may that is no longer a problem and if it is no longer privileged then it's as distinct portion of the memo that should be segregated and released we're not asking you or a rule that would allow us to get something the district were worse were to examine and say is that all the power but they are asking for something in a way that's more aggressive and that seems difficult to administer her in the sense that we wouldn't even recognize the privilege based on this court's kick characterization of the process privilege and here we're talking about presidential communications privilege which we know is different and more robust if if i'm just i mean if it's one thing if the basis for the privilege which here is communications about the footing on which the president is able to negotiate with another national government if that's one part and then if in another part of the same conversation the president says you know and how we come in with the you know cocaine trafficking operation out of the you know map that would be an easier call it seems to me to say well that's not an exercise of the president's article two authorities but here the notion that that the what you're referring to is the misconduct evidence by the within the memo versus the rest of it is it's also you know even are all right to my colleagues have further questions for mr pocky just one if i might with regard to presidential communications privilege does stiction five just example in five do anything that the constitution doesn't already  common law but the statute can obviously preempt common law so that you can't preempt constitutional law so as to your position and that this this question of presidential communications privilege is non good morning i had contacted the clerk's office because of an issue a connection issue and was hoping to be brought in on a different line that i communicated with the deputy is that possible i apologize f does not qualify for presidential communications privilege and imagine that the executive branch wants to nonetheless not disclose this not make you want to make sure this report is not disclosable under for you in the future so they add one sentence to that one thousand page report that clearly qualifies for the presidential communications privilege is it your position that looking awfully strong ground in this case but i am just trying to figure out what the what the breadth of this very broad privilege is understandably and justifiably brought privilege assume that the one thousand page report is one record  report for not talking about a conversation that the president is a part of a back and forth that means looking like the allegations of the bank that were your nd in under the by happening a about a conversation with the president but part of it is about you know baseball and part of it is about you know foreign relations the position of the government is that the part about baseball there's no obligation to segregate that as outside of what article two and the come the common law developing the privileged protect the supreme court in the next case for example was fronted with a question of what is the scope of the privilege and recognize that it did apply in the pardon cases you have materials that are have factual material in them that are not just necessarily precise subsequent cases referred to but that was in the context of distinguishing deliberative process which would cover the deliberate but not the facts and the presence of communications process which more akin to work product is covered facts that are part and parcel of the advice giving process that's the only issue that was before the court and that sealed was this is it just the deliberation or is it the does it include the intertwined factual material but none of these cases as i read them has gone broader to say where there is material that is neither factual nor d does it nonetheless somehow fall within the presidential communications privilege we're not suggesting here today that purely private conversations about baseball that the president has  place contrary to present with me patient privilege could you just hold it a little closer because your we're losing you even want to shift a few inches off but but in n y c old so what we do have here that would i think take us into a new terrain is a different kind of claim of the relationship between the privilege and misconduct in and rayfield we defended the preservation of the presidential communication privilege even in cases involving misconduct by explaining that it was really important that there be communications about the misconduct so that there could be effective supervisory branch control over officials that might be abuse in office but that justification would not seem to apply in this case where the allegation of misconduct by the president wrong to say that a for a case i don't know we have so so sad but to say that a for a case can never amount to a showing of need because people are just intitled to the information the why is the the policy behind that civil litigation stronger than the policy behind foyer which assigns to the public in title meant to the information well so question as written by congress for example five is whether the material is what we normally be available and so we don't get into the analysis of need and balancing and you know the it's not we're not cases where we're dealing with grand jury subpoenas trial subpoenas other you know criminal prosecutions or in the case of dellums civil litigation we're still dealing with requests for review not necessarily limited to the court in camera st another there's a little there's another answer that you're you're missing which is that when there's a for a request or and the for request or gets the information there's no obligation for that person to you can share it with another member of the public you can take that information tear it up and throw in the waste can there's there's absolutely no requirement whatsoever that is certainly true your honor but i think here part of the reason that there is such caution around the disclosure is because once something is this close under floyd you know from the government's perspective the egg has been crap and it's out there in the world you can't break the egg so to speak and material is is public whereas in these other cases where there is a balancing going on that's not true it's a different  privileged information that is the basic command for you know what i know is that you've briefed this and you've argued this is like i'm not really sure that i follow how words the president said in the context of the interplay between his interactions with a foreign government russia and the activities of domestic intelligence agencies is not under the presidential is not at least  your point that it wasn't just a question it was a it was and there was pressure whatever but but in terms of the logic of the privilege bracketing it's propriety or not just as a  to say hey could you go you know assassinate my enemy it's part of the leverage deliberation about how to run the country even if it might also be in europe to try to clarify this before  argument this is not privilege does not depend on whether it is or isn't this common it depends on whether is or isn't related to a decision a president must make and i will note again the government has not argued at any point in this case even though we've repeatedly brief eight refused to decide that question we believe we're entitled to a substantive examination of whether that ascii is indeed connected in a court review didn't care or we haven't seen it but we have serious concerns about the