[00:00:03] Speaker 03:
may please the Court.

[00:00:04] Speaker 03:
Alexander Robbins on behalf of the United States, and I would like to try to reserve five minutes of my time for rebuttal, but I will watch my own clock.

[00:00:14] Speaker 03:
Unless the Court wants to further discuss the jurisdictional issue, which I realize we have hashed out quite a bit in the papers, I'm happy to turn to the merits of this case.

[00:00:25] Speaker 03:
I'll start there.

[00:00:26] Speaker 03:
On the merits, Your Honor,

[00:00:34] Speaker 03:
to attack people physically in a protest, nor does being a right-wing extremist, because the First Amendment does not protect violence.

[00:00:43] Speaker 03:
It doesn't confer some sort of immunity from prosecution because the motives for your violent crime were political.

[00:00:51] Speaker 03:
And I think fundamentally that is the fundamental legal error that the District Court made in both prongs

[00:01:08] Speaker 03:
about the Attorney General's memorandum directing the Department of Justice to prioritize prosecution of politically motivated violence in the summer of 2020.

[00:01:18] Speaker 03:
And the memorandum, the bar memorandum that we set forth in our brief, it's two pages, very clearly distinguishes between rioting and violence on one hand and protest on the other.

[00:01:29] Speaker 03:
It was the district court that failed

[00:01:38] Speaker 03:
repeatedly conflated rioting and violence with First Amendment protected activity.

[00:01:43] Speaker 03:
And that mistake infected both prongs of the district court's analysis.

[00:01:47] Speaker 03:
It made the district court think that there was something suspicious about the federal government directing prosecutorial resources towards prosecuting violent, politically motivated crime at a time when it was widespread.

[00:02:28] Speaker 01:
to explore the idea that we've been singled out unfairly.

[00:02:33] Speaker 01:
And then selective prosecution, you can't do, you know that.

[00:02:36] Speaker 01:
So what was wrong with that?

[00:02:39] Speaker 01:
I'm a little put off by your suggesting this with the district court looking with the jaundiced eye.

[00:02:44] Speaker 01:
This is a motion by defendants for their own defense.

[00:02:48] Speaker 03:
This was a, we are attacking the district court's order and not the defense motion because the reason we're here is the district court adopted the defense reasoning and granted

[00:03:06] Speaker 03:
effect and discriminatory intent.

[00:03:08] Speaker 00:
On discriminatory effect, it seems like it comes down to how do you define the control group.

[00:03:13] Speaker 00:
So I'm curious, what's the government's position in terms of what's the proper control group here?

[00:03:18] Speaker 03:
The control group – the control group, as a factual matter, and I think on the facts of this case, I'm not sure there is one, which would put it under Aguilar, which says that there's no comparably situated

[00:03:29] Speaker 03:
a person, then the claim fails.

[00:03:33] Speaker 03:
But I think, as we point out in our brief, a possible control group might be a substantially similar individual burning a police car in a riot with a comparable criminal history who was not selected for prosecution.

[00:03:57] Speaker 03:
And that's also what the Supreme Court described in, I think it was Wait, where the Supreme Court said you have to take out all of the legitimate

[00:04:34] Speaker 00:
you need to define it some other way.

[00:04:37] Speaker 00:
Well, you would never know because it didn't happen.

[00:04:39] Speaker 00:
The fact that they... I assume that we're talking about hypotheticals.

[00:04:42] Speaker 00:
The government doesn't think that the district court did a close enough analysis of the control group, and so I'm trying to figure out how would you analyze, like, what is the proper control group that the district court should have focused on?

[00:04:53] Speaker 03:
The example we offered in our brief was anti-lockdown COVID protests, or had they

[00:05:11] Speaker 03:
defendants sought in the discord granted wide ranging discovery into the department's treatment of anti COVID lockdown protesters.

[00:05:20] Speaker 03:
So had there been some sort of right wing or different political

[00:05:36] Speaker 03:
chains between the individual defendants in our hypothetical anti-COVID lockdown riots and the riots in this case in the summer of 2020, including in Santa Monica.

[00:05:47] Speaker 03:
That would be at least a plausible group.

[00:05:49] Speaker 03:
Now, again, you still shouldn't operate at the level of groups.

[00:05:52] Speaker 03:
The Supreme Court's case law, Armstrong, Bass, Waite, very clearly require individual analysis.

[00:05:58] Speaker 03:
So even then, you would still have to look closer and look

[00:06:07] Speaker 03:
that we cited as a notice of related cases.

[00:06:09] Speaker 03:
But at the very least, you would need two groups that were comparable.

[00:06:14] Speaker 03:
And then you could take a further step and look and see if an individual was being treated differently.

[00:06:18] Speaker 03:
And I think the fact that we can't come up with one just shows how far afield the district court's order was here from

[00:06:32] Speaker 00:
Is there anything in the record that tells us whether the control group that the district court actually used included our sons that were not federally prosecuted, that arose in the context of a protest?

[00:06:45] Speaker 03:
No, there's not.

[00:06:46] Speaker 03:
The aggregate data that the district court relied on, I think from just internet sources and Department of Justice and other statistics about prosecution, had no information about riots, politically motivated violence, or anything of the sort.

[00:07:36] Speaker 00:
are symptoms that could have been

[00:08:25] Speaker 03:
the government.

[00:08:47] Speaker 03:
more.

[00:08:48] Speaker 03:
The discovery demands in this case are vastly overbroad and not something that defense even attempts to defend on the merits in their answering brief.

[00:08:56] Speaker 03:
But on the case of, I guess going back to Armstrong, in Armstrong you had a situation where

[00:09:20] Speaker 03:
actual merits showing of discriminatory selective prosecution based on race or political opinion before you get discovery because of the unique separation of powers concerns at issue here in a case like this where you have the judiciary essentially constitutionally second-guessing discretionary determinations by the executive to take care that laws be faithfully enforced and as a prep in your review you compare this to the January 6th

[00:09:52] Speaker 03:
one of those cases order discovery.

[00:09:55] Speaker 03:
No, Your Honor, no judge order discovery in those cases.

[00:09:57] Speaker 03:
And we cite it not so much to compare, say this is the same as that, but to illustrate the correct analysis that even in the context of the January

[00:10:43] Speaker 03:
decide where to prioritize federal resources and because of the fact that the district courts really are not well situated as a practical matter to make these

[00:11:11] Speaker 03:
discretionary determinations about who to prosecute, and unless we violate the Constitution somehow, that's allowed.

[00:11:18] Speaker 02:
My second question, in Steele there was two conducts at issue one was, you know, the census, I think burning.

[00:11:23] Speaker 02:
What did they do?

[00:11:23] Speaker 02:
Burn the card of an anti-census speech.

[00:11:28] Speaker 02:
So there's two separate incidences and that was why we were able to have a controlled group.

[00:11:32] Speaker 02:
What was the, what would be the two conducts

[00:11:40] Speaker 03:
I'm sorry to have made a misergy, Your Honor, but in Steele there was no burning.

[00:11:42] Speaker 03:
Steele was nonviolent.

[00:11:44] Speaker 03:
The point that they have briefed is that in Steele the census protesters did not burn the census taker's car.

[00:11:49] Speaker 03:
They simply refused to fill out the census.

[00:11:52] Speaker 03:
But Steele is a perfect example of, I think, the correct analysis here.

[00:12:08] Speaker 03:
going on the radio for actually separate, protected First Amendment activity on the discriminatory intent problem.

[00:12:15] Speaker 03:
Wait comes along a couple years later.

[00:12:49] Speaker 03:
in a riot itself, there is no protected, separate free speech conduct as there was in steel.

[00:12:54] Speaker ?:
I know.

[00:12:55] Speaker 00:
So you're skipping over the context, right?

[00:12:57] Speaker 00:
Like, they're present in the context of a protest activity, which has First Amendment implications.

[00:13:04] Speaker 00:
Correct.

[00:13:05] Speaker 00:
So just being there and being part of that movement is the only sort of the second thing that Judge Bumate is asking about, right?

[00:13:14] Speaker 03:
That's right, Your Honor, but it's not protected.

[00:13:17] Speaker 03:
I think that goes to my point about weight, comparing steel to weight.

[00:13:20] Speaker 03:
In steel, you had separate protected protest activity.

[00:13:23] Speaker 03:
In weight, the only expressive activity was people

[00:13:31] Speaker 03:
of defense saying, I refuse to register for the draft.

[00:13:34] Speaker 03:
And Waite talks about how you can consider expressive activity in the context that they crime when the protected activity and the non-protected activity are necessarily intertwined or inexorably intertwined.

[00:13:47] Speaker 03:
Steele involved a separate activity.

[00:13:49] Speaker 03:
Waite involved people who are just announcing their woeful refusal to register in the course of doing so and sending letters

[00:14:02] Speaker 03:
a conducted issue, as your honor pointed out, is showing up at a protest turned riot and burning a police car.

[00:14:10] Speaker 01:
With that, I will say the remainder of the panel.

[00:14:12] Speaker 01:
Before you sit down, just one last question.

[00:14:14] Speaker 01:
Yes, sir.

[00:14:14] Speaker 01:
You said earlier you thought the discovery requests were overbroad.

[00:14:19] Speaker 01:
Is there any portion of the request that you think might have gone forward without a problem?

[00:14:26] Speaker 03:
We did not attempt to sort of apply the Davis at Seventh Circuit and Davis

[00:14:44] Speaker 03:
We didn't do that because of

[00:15:22] Speaker 03:
that would shake out the district court.

[00:15:27] Speaker 00:
Thank you.

[00:15:36] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:15:38] Speaker 02:
So I appreciate the court's focus order, and I would like to speak about jurisdiction, if that's okay.

[00:16:18] Speaker 02:
vehicles, hotels, churches, all this sort of thing that you would expect affects interstate commerce or has some jurisdictional hook for the federal government.

[00:17:04] Speaker 02:
Not much to prove it.

[00:17:28] Speaker 00:
there's a statement in Armstrong that says that the standard for showing selective prosecution is a demanding one.

[00:17:34] Speaker 00:
And then with regard to discovery, it specifically says that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims, recognizing that that standard for even getting the discovery is also hard, and it's borne by the defense.

[00:17:49] Speaker 00:
And so I get this, like, we don't have the primary access to the information, but the Supreme Court didn't seem to

[00:17:57] Speaker 00:
Create a safety valve for that.

[00:18:57] Speaker 02:
intent showing a loan to obtain discovery.

[00:19:02] Speaker 02:
The court doesn't adopt that, and I just want to be clear, I'm not saying that that is law, but there is then a decision of this court, Sellers, and that's at 856, note 11, where this court recognizes that possibility as well.

[00:19:16] Speaker 02:
So I think here we have both prongs, and I think the evidence on discriminatory intent is pretty strong.

[00:20:06] Speaker 02:
perhaps the task force memo, it's available.

[00:20:26] Speaker 02:
and the former attorney general.

[00:20:28] Speaker 02:
And there are a few that kind of stuck out to me as I was re-reviewing everything.

[00:20:33] Speaker 02:
There was a specific reference… Well, before you get there, you agree with me that the government can have discriminatory intent against anti-government violent extremists, right?

[00:20:43] Speaker 02:
I think it depends on the context, but I could see a situation where that's correct.

[00:21:38] Speaker 02:
side of that protest in LA.

[00:21:41] Speaker 02:
Is there any evidence of that?

[00:21:42] Speaker 02:
Well, Your Honor, all I can give you are the public statements, because again, this is – this is a – this – we did our best with the public record.

[00:21:48] Speaker 02:
Everything else is in the hands of the government.

[00:21:50] Speaker 02:
And I'm – I'm telling – I do think it's quite extraordinary for a sitting president to say that he wants to do retribution with the legal system.

[00:21:59] Speaker 02:
So it's possible to – But again, if it's against violent anti-government extremists, so what?

[00:22:06] Speaker 02:
Understood, Your Honor, the district court didn't interpret the fact.

[00:22:48] Speaker 02:
I am not aware of anyone on the other side of the political spectrum at this protest, I think.

[00:22:55] Speaker 03:
Wasn't one of them of Bukalupu, which is considered extreme right-wing, and then Beasley was more left-wing?

[00:23:04] Speaker 02:
I think at this stage in the case, it's hard to say what their precise ideologies were.

[00:23:10] Speaker 02:
I think there were statements from Beasley that may be construed as anti-police officer or anti-law enforcement, and I think the same might be true of

[00:23:34] Speaker 02:
I'm arguing that the government is targeting left-wing extremists.

[00:24:39] Speaker 02:
right to protest.

[00:24:40] Speaker 02:
It's the proximity to the protest that's important.

[00:24:44] Speaker 02:
There were other cases, Your Honor.

[00:24:53] Speaker 02:
There were the Alvarado case, the Tillman case, and those were both people who I think were alleged to have committed arson at a restaurant.

[00:25:17] Speaker 02:
So, if we're just looking at people who are at the protest, which is what the government proposed below, we wouldn't be able to isolate that out.

[00:25:29] Speaker 02:
So that's why I think.

[00:25:49] Speaker 02:
taking it at face value on that.

[00:25:53] Speaker 02:
So they were supposed to take like the example you're giving, you know, vehicle passenger truck arson.

[00:25:59] Speaker 02:
That's our control group.

[00:26:00] Speaker 02:
I think you could look at police facility arsons.

[00:26:10] Speaker 02:
So and again, just to be clear, I want to make sure I say this again because I know we are very concerned about the merits and I think rightfully so, but we're still at the

[00:26:39] Speaker 02:
So I think it's hard for me to see how you can fault the district court for considering those statements.

[00:26:45] Speaker 02:
And if it's okay with the court, I'd really love to talk about jurisdiction.

[00:26:49] Speaker 02:
I had this whole spiel ready for you guys, but I only have about three and a half minutes left.

[00:26:54] Speaker 02:
So I think, of course, we have to consider Davis.

[00:27:20] Speaker 02:
talk about it in the time I have left.

[00:27:22] Speaker 02:
So the first point is obviously everyone knows this Davis is not an answered case, so it's not controlling here.

[00:27:28] Speaker 02:
This court has the freedom and discretion to switch the question of its own accord.

[00:27:35] Speaker 02:
But more fundamentally I think Davis gets the textual analysis wrong.

[00:27:42] Speaker 02:
I think Davis also

[00:28:21] Speaker 01:
We're only worried about double chapter.

[00:29:13] Speaker 02:
there's some jurisdictional manipulation here.

[00:29:16] Speaker 02:
And I think the, um, the on bond position in Armstrong, which of course was reversed by the Supreme Court on other grounds.

[00:29:21] Speaker 02:
But I think the back case,

[00:30:07] Speaker 00:
I don't know if you can say that because in this case the district court agreed and dismissed the indictment.

[00:30:12] Speaker 00:
And so the plain text of 3731, which says jurisdiction exists for the government to appeal if an indictment is dismissed, doesn't tell us that we need to parse that out.

[00:30:20] Speaker 00:
We just look.

[00:30:54] Speaker 02:
thinking about just contextual arguments.

[00:32:24] Speaker 02:
And then even when it certifies, the Court of Appeals can still say no.

[00:32:27] Speaker 00:
All right, counsel, do my colleagues have any other questions?

[00:32:31] Speaker 02:
No, thank you.

[00:32:31] Speaker 00:
Thank you.

[00:32:32] Speaker 00:
I'd like to go over, thank you for your argument.

[00:32:37] Speaker 00:
Three minutes for a button.

[00:32:41] Speaker 03:
Hello again, Your Honors.

[00:32:42] Speaker 03:
If I could maybe offer the Court three helpful citations on jurisdictional

[00:33:03] Speaker 03:
and the Supreme Court case of Waite at 604.

[00:33:07] Speaker 03:
In both cases, the government did the exact same thing, and the Supreme Court laid that out and didn't seem to have any – understood 371 means what it says and gives courts of appeals jurisdiction over orders dismissing an indictment.

[00:33:22] Speaker 03:
To turn back to the merits, I'd like to point this Court to two relevant, helpful parts of the Aguilar decision cited in our brief.

[00:33:31] Speaker 03:
At 7 of 6, the Aguilar Court says that the control group and the defendant must be the same in all

[00:33:45] Speaker 03:
that if there is no one to whom defendant could be compared in order to resolve the question of selection, it follows that defendant has failed to make out one of the elements of its case.

[00:33:57] Speaker 03:
The fact that there is no control group on the facts of this case doesn't help defendant, it hurts him.

[00:34:01] Speaker 00:
What do you do with the defense's argument that says that there's, if not binding authority, at least some indication in the case law that you could make it just on a showing of discriminatory intent?

[00:34:13] Speaker 03:
I think first I think that

[00:34:19] Speaker 03:
Well, all the Supreme Court cases and this court's cases that say that there are two separate requirements, both of which must be shown.

[00:34:25] Speaker 03:
I also think that as – I think discriminatory intent is completely absent here for the reasons that we've addressed earlier, because violent anti-government extremist organizations or individuals who are committing crime that's politically motivated are not in any way a suspect class.

[00:34:41] Speaker 03:
To the contrary, it was the district

[00:34:49] Speaker 03:
disparate impact discriminatory treatment data, which again fails for some reason.

[00:34:53] Speaker 03:
What does the district court think was the targeted group here?

[00:34:56] Speaker 03:
The district court – I prefer the honor to pages 26 and 27 – the district court seemed to think the targeted group was George Floyd protesters and repeatedly conflated George Floyd protesters with rioters like the two defendants in this case.

[00:35:09] Speaker 00:
So I want to – I mean, I wonder if something you've just said is a little too broad.

[00:35:19] Speaker 00:
front.

[00:35:21] Speaker 00:
So those protests were going on, you had sort of clashing interests at some times, and sort of like different political ideologies.

[00:35:28] Speaker 00:
If you had a situation where it was very clear that only one side of that ideology, ideological split, was getting prosecuted, even though both sides were engaging in the same kind of unlawful conduct, don't you think that you could make a showing for selective prosecution?

[00:35:41] Speaker 00:
Yes, I think even though both sides are engaging in unlawful

[00:35:47] Speaker 03:
again, to take as a hypothetical, if that were to happen, you would be able to find, point to, as was the case in Steele, you would be able to point to an individual who was beating someone over the head in a protest on one side, who was prosecuted, and a comparably situated individual on the other side who wasn't prosecuted.

[00:36:08] Speaker 03:
And they would be, because we have listed some factors in our brief, legitimate prosecutorial decisions, you have to look at criminal history, you have to look how well-organized

[00:36:20] Speaker 03:
But in your hypothetical, Your Honor, you would have comfortably situated individuals, some of whom were being prosecuted, some of whom were not.

[00:36:27] Speaker 03:
You don't have anything close to that in this case.

[00:36:29] Speaker 03:
And then, of course, you'd also need a tent as well.

[00:36:32] Speaker ?:
All right.

[00:36:33] Speaker 03:
Do we have any further questions?

[00:36:33] Speaker 02:
So is it true that one of them is left-wing and one of them is right-wing?

[00:36:36] Speaker 03:
Is that the wrong way to consider this?

[00:36:39] Speaker 03:
The district court and the defense proceeded on the assumption, as an imputed theory, that they were sort of left-wing or at least anti-government views

[00:36:56] Speaker 03:
factual matter, it's unclear exactly what their views were to the extent that they had any, which just goes to the fact that there wasn't really any separate view

[00:37:28] Speaker 00:
That's correct.