Question: When a plaintiff tells a court that a privilege has never been properly invoked, what does the government do next?

Answer: It invokes it. On October 14, Joshua T. Hoyt, a Deputy Assistant to the President and Deputy Counsel to the President, filed a declaration in the Kennedy Center case stating that “at the direction of the President” he was “formally invoking the presidential communications privilege” over what Representative Joyce Beatty has sought in discovery. The same afternoon, Judge Christopher Cooper issued the scheduling order the parties had spent a week arguing about: Beatty’s opposition to the motion to lift the injunction is due October 30, the government’s reply November 6, and briefing on summary judgment is stayed until the court rules on the motion to lift. Discovery closes October 23. In the Epstein files case, the government spent the week arguing that no administrative record is needed, and on Friday morning it hand-delivered a binder of redacted interview notes that the court had asked for twice. In the third docket, the D.C. Circuit let the stay motion sit, now eighteen days past the last brief.

The week’s two developments look procedural and are not. Hoyt’s declaration puts a name and a signature on a privilege that Beatty’s motion to compel had called a blank assertion, and what it claims is wide: it reaches communications that do not include the President at all. The scheduling order does something similar with time. The government asked the court to keep October 16 for Beatty’s opposition, a date that would have required her to brief the equities of the closure before the discovery the court ordered about those equities had been produced. The court instead gave her October 30, and stopped the clock on summary judgment until it decides whether to lift the injunction. Both moves give the government room. What the room will be used for is the question the next three weeks will answer.

The week’s filings

Nine entries landed across the three cases. Seven are in the Kennedy Center case, six of them on October 14 alone, and two are in the district court Epstein case. The D.C. Circuit saw nothing for the second week running. October 14 is the week: the revised schedule, the government’s answer on privilege, and the sealed redactions the court ordered on October 7 all carry that date.

The schedule came from ECF 104. Filed October 13 under ECF 103, it is not one proposal but two, and the gap between them is the argument. The government asked the court to keep the dates it already had, October 16 for Beatty’s opposition and October 23 for its reply, writing that “any extension of the briefing schedule for the dissolution motion would significantly prejudice Defendants.” Beatty asked for October 30 and November 6, one week after discovery closes, and said why: “Defendants instead believe that Plaintiff should be required to file a response to the motion to vacate by October 16, even though discovery—including discovery this Court found to be directly relevant to the equities of that motion—will not be complete for another week thereafter.” She added that if the court took the government’s dates, she “would have no option but to move for an extension of that date based on the practical infeasibility of filing in three days.”

The court took hers. The October 14 minute order sets her opposition for October 30 and the reply for November 6, and it goes further than either party proposed on the second motion: “The Court hereby stays briefing on the summary judgment motion.” Both sides had agreed to defer summary judgment until the lift motion was resolved. They disagreed about whether the court should set the later schedule now. The court declined to, and will set it after it rules.

The other filing of the day is the government’s response to the motion to compel, twenty-one pages of it, and it is the week’s most consequential document. More on it below.

Kennedy Center: Beatty v. Trump, No. 1:25-cv-04480 (CRC), D.D.C.

  • October 13: ECF 104, the parties’ proposed briefing schedule, nine pages, carrying both sides’ competing dates.
  • October 14: a minute order modifying the scheduling order at ECF 82. Beatty’s opposition to the motion to dissolve or vacate is due October 30, the government’s reply November 6, and briefing on the summary judgment motion is stayed.
  • October 14: ECF 105, the transcript of the October 1 scheduling conference before Judge Cooper, forty-eight pages, with a redaction-request deadline of November 4. No copy is in the feed, so this report cannot quote it.
  • October 14: ECF 106, the government’s response to the motion to compel, with the declaration of Joshua T. Hoyt at 106-1 and a Rule 30(b)(6) deposition transcript at 106-2.
  • October 14: ECF 107, a sealed filing whose single exhibit is titled “Proposed Redactions to ECF No. 65-1.” The docket line is all this report has; no copy is in the feed, so what the defendants propose to withhold cannot be stated here.
  • October 14: two further minute entries reading only “Scheduling Order” and “Scheduling Order AND ~Util - Set/Reset Deadlines”. They record the same order under two labels.

Epstein files: Phang v. Blanche, No. 1:26-cv-01417 (EGS), D.D.C.

Epstein files appeal: Phang v. Blanche, D.C. Cir. No. 26-5299 (consolidated with 26-5334)

  • Nothing was filed in the window. The last entry remains the appellant’s reply of September 29.

The Kennedy Center: Beatty v. Trump

Where the case stands: Judge Cooper’s opinion of May 29 declared the board’s December 2025 renaming void and preliminarily enjoined the March 16 closure decision; his order of September 15 enjoined the August 13 inscription and the “President Donald J. Trump Plaza” renaming. The Board voted again to close the main building for two years, on August 13 and again on September 15, and moved to dissolve the injunction under Rule 60(b)(5) (ECF 88) and for partial summary judgment (ECF 89), arguing that the later votes rest on material the Board did not have in March: a project-development plan from the real estate firm JLL and a cost-benefit analysis from Delta Consulting Group. The building is still closed, and there is still no reopening date. Discovery runs to October 23.

ECF 106 answers Beatty’s five grounds in order, and the first is now moot. Beatty argued that under United States v. Navarro only the President or his designee may invoke the privilege, and that no designee had. Hoyt is the designee. “At the direction of the President, I submit this declaration formally invoking the presidential communications privilege with respect to information, documents, and communications requested in discovery by Plaintiff.”

What he invokes is the part worth reading slowly. The declaration covers information “shared between the President, his advisors (government and non-government), and Kennedy Center staff, pertaining to the management and operation of the John F. Kennedy Center for the Performing Arts.” It then makes explicit what that reaches: “This includes communications that do not include the President but are to or from his advisors and/or Kennedy Center staff and for the purpose of gathering information, exploring alternatives, and preparing recommendations for the President.” It enumerates ten requests for production, six interrogatories and eleven requests for admission, and it extends to designated passages of three deposition transcripts. It names a cabinet officer, covering “communications involving Secretary Howard Lutnick that relayed presidential decision-making or were intended to inform presidential deliberations.” And on confidentiality it says the obvious thing a declaration of this kind has to say: “These communications were intended to be confidential and have remained confidential.”

The breadth is the argument. Beatty’s motion had said the privilege protects the President’s Article II functions and that the Kennedy Center is not an Article II entity. The government’s answer is that the President’s role there is statutory before it is anything else: 20 U.S.C. § 76h(b) gives him the appointment of the general trustees, § 76h(c) gives him the Advisory Committee on the Arts, and the privilege reaches official action whether Congress or the Constitution supplies the authority. “That the President also serves as the Chairman of the Board is of no moment.”

The brief’s second half is about need, and there it argues that the discovery Beatty wants cannot bear on the only question left. The question, as the government frames it, is “whether the Board, in voting to temporarily close the Center for necessary renovations and restorations, complied with its fiduciary and statutory duties,” and the answer lives in the materials the Board had in front of it. Beatty “has already obtained extensive discovery—far more than needed—to address that narrow issue”: five depositions, twenty-five interrogatories, “approximately 6,800 pages [now more than 7500 pages] of documents and responses to 44 requests for admission.” Her remaining requests, the brief says, go to a conspiracy it calls unfounded, and its sharpest line is about the parties themselves: “Plaintiff, a dissenting ex officio trustee, opposes temporary closure. That is the dispute in front of the Court, and these requests quite simply are not relevant to it.”

On waiver, the government relies on In re Sealed Case for the proposition that a disclosure waives the privilege only as to “the information specifically released.” Its own summary judgment papers had disclosed that Floca spoke with the President several times in January 2026 and recommended a twenty-four-month closure. That disclosure, the brief says, is the outer limit of the waiver.

One line in the order that set this briefing deserves its own paragraph, because it is why the reply is due Wednesday rather than sooner. ECF 103 said the court “will await completion of the briefing on executive privilege before addressing Plaintiff’s objections concerning that issue.” The motion to compel is not pending in any active sense. It is waiting for Beatty’s reply, and then it is waiting for the court.

The redactions completed the day. ECF 99 gave the defendants until October 14 to propose narrowly tailored redactions to the JLL Plan, with Beatty’s response by October 19, and warned that any redaction “must be narrowly tailored and specifically supported.” They filed the proposal under seal on the 14th, as ECF 107, with one exhibit and no public copy. So the document on which the Board’s defense rests is one step closer to being readable, and the step that decides how readable is now the court’s alone.

The Epstein files: Phang v. Blanche

Where the case stands: Judge Sullivan granted a preliminary injunction on June 25, holding that the Epstein Files Transparency Act required disclosure and that the Department had argued procedure instead of substance. On September 16 he granted Phang’s motion to compel an answer, denied the government’s motion to stay his deadlines, and set the administrative record: a certified list by October 1, the record to Phang by October 15. The government answered on September 24, nearly three months late, and appealed both orders; the two appeals are consolidated at the D.C. Circuit. On October 1 it filed ECF 51, asking the court to postpone the record until its Rule 12(c) motion was resolved, and ECF 52, the motion that would make the record unnecessary. On October 9 the court ordered redacted versions of the underlying handwritten FBI interview notes behind three FD-302 reports, by noon on October 16.

This week the government argued, and then complied, and the two filings are worth reading together.

ECF 58 opens by dismissing the fight. “Despite all of the charged rhetoric throughout Plaintiff’s 12-page response to a 3-page procedural motion, the motion is just that: a routine procedural motion.” It then makes three moves.

The first is a reading of the local rule. LCvR 7(n) requires a certified list of the record within thirty days of the answer or simultaneously with the filing of a dispositive motion, whichever comes first, and the court moved the date up to October 1 at ECF 42. The government says its motion was filed concurrently with a Rule 12(c) motion that dispenses with the record, so the requirement is answered by the filing rather than the list. On the court’s standing order, which asks for conferral and agreed alternative dates, it says that “the government does not read the standing order the way Plaintiff has presented it,” because the order covers briefs and hearing dates and the like, and this motion is “different in nature.” And on the fact that it filed at 9:18 p.m. on the day of the deadline, while Phang’s response came in at 10:18 p.m.: “Of course, the deadline is the end of the day unless the Court orders otherwise.”

The second concerns what a record is meant to do. An administrative record, the government says, is the wrong instrument for testing redactions; the right one is a Vaughn index, and in camera review can stand in for that. It cites decisions from this district in which agencies were allowed to waive Rule 7(n) because the record was not necessary to the decision. It adds that the court can take judicial notice of anything already on the Epstein Library or the FBI Vault, and that the government “has already disclosed all disclosable information that could conceivably go in an Administrative Record.”

The third is a hedge, and it is easy to miss. Having argued that the record is unnecessary, the government adds that it “in no way waives the argument that the Court lacks jurisdiction to engage in such a review.” The position it has taken to the D.C. Circuit, that the statute “precludes judicial review,” is preserved here for the district court too.

Then Friday. ECF 59 is three pages and it begins with an arrival time: “At 10:55 a.m. on Friday, October 16, 2026, the Defendant submitted, via hand delivery to the Court’s chambers, a binder containing” the handwritten notes behind three FD-302 interview reports, redacted. The order was complied with, and comfortably inside the noon deadline.

The rest of the filing is an argument about what that compliance means, and it is the reason this document matters more than its length suggests. On why the redacted copies did not exist on September 24, when the court first asked, the government explains that it had concluded the notes were duplicative of the typed reports already on the library, and that the EFTA “does not require the production of duplicative records.” It reads the October 9 order as directing it “to add redactions to documents the United States had previously determined were duplicative.”

Then two sentences. First: the redaction work “should not be taken as a representative sample of what could be done, or what would happen, if the Department were required to redact and produce handwritten notes on a larger scale.” Second: to the extent the court is considering ordering the notes published, the government “would respectfully request that the Court stay any order requiring their production to allow the Government time to consider seeking appellate review.” A party that complies and asks for a stay in the same document has complied in the narrowest available sense.

Set against ECF 58, the shape is clear. The government’s position is that the record is unnecessary, that the vehicle for testing redactions is some other case, that its production is already complete in every sense that matters, and that if the court disagrees it should let the government appeal before anything moves. Nothing has yet been produced to Phang. The October 15 deadline for the administrative record came and went with no entry recording production, and the motion that would excuse it is still undecided, as is Phang’s request to move her own Rule 12(c) response.

The Epstein files on appeal

Where the appeal stands: the government moved on September 22 to stay the June 25 and September 16 orders and to expedite. A per curiam order of September 23, before Chief Judge Srinivasan and Judges Pillard and Pan, set Phang’s response for September 25 and any reply for September 29. Briefing is deferred pending further order, and dispositive motions in the consolidated appeals were due October 9.

This week the docket is empty for the second consecutive week, and the emptiness is now the finding. The stay motion has been fully briefed since September 29, which is eighteen days. The October 9 deadline for dispositive motions passed without an entry recording compliance or an extension. Nothing on the circuit’s docket says why, and this report will not guess at a reason.

What the silence is not is an administrative stay. This page corrected that misreading two weeks ago, and the correction still holds.

There is a symmetry worth naming. In the district court this week the government complied with an order while telling the court that its compliance was not a sample of what it would do at scale, and asked for a stay so that it could appeal before the notes move. On appeal it argues that the courts have no role in enforcing the statute. Those are the same position stated to two different judges: the Department will do what a court orders, one document at a time, and it would prefer that no court order anything.

What the coverage did not show

Two accounts of the week could be retrieved and read, and both are about the privilege. ABC News reported the Hoyt declaration on October 15 under the headline “Trump claims executive privilege to keep Kennedy Center conversations secret”. NBC News reported it the same day under the headline “Trump invokes executive privilege in Kennedy Center court fight”. Both are accurate about the filing, and both identify what makes it unusual: the reach beyond the President’s own conversations, and the government’s argument that his role at the Center is official because the statute gives him the appointments.

Neither reported the order that came the same day. The revised schedule, the three weeks it adds, and the stay of summary judgment briefing appear in neither account, and a search of the week’s reporting for those dates found nothing at all. That is the part of the ruling that determines when the court reaches the merits, and it is the part a reader would most want to know.

This is not a complaint about the outlets. A declaration from a White House lawyer stating that the President has claimed privilege is a story on its own, and it was filed at the same hour as a scheduling order that reads like bookkeeping. The point is the one this page keeps making: the docket is where these cases are decided, and the coverage is a partial view of it. On the Epstein docket, the week’s two filings appeared in no coverage this report could retrieve. Neither did the binder.

What to watch next week

Monday, October 19. In Beatty, Beatty’s response to the government’s proposed JLL Plan redactions is due, under ECF 99. The court will then rule by separate order. This is the last step before the document the Board’s defense rests on becomes readable in whatever form the court allows.

Wednesday, October 21. Beatty’s reply in support of the motion to compel. The court has said it will await the completion of this briefing before it addresses the privilege objections at all, so the reply is what starts that clock.

Friday, October 23. Discovery closes in the Kennedy Center case. It is two weeks later than the schedule the court set in September, and it is the date Beatty built her proposed briefing schedule around.

Friday, October 30. Beatty’s opposition to the motion to dissolve or vacate the preliminary injunction. The building stays closed while it is written.

Friday, November 6. The government’s reply in support of the motion to dissolve or vacate. After that the court can rule on whether the injunction stands.

Pending, any day. The D.C. Circuit’s ruling on the stay motion, now eighteen days past the last brief. In the Kennedy Center case, the revised schedule for summary judgment, which the court has stayed until it rules on the lift motion. And in the district court in Phang, three decisions that have been waiting: the motion to postpone the administrative record, the Rule 12(c) motion that would end the case, and what to do with Friday’s binder.

The thing to hold on to when reading next week’s version of this page: this week the government put a signature on a privilege it had asserted without one, and the court moved the merits three weeks down the road. Hoyt’s declaration reaches communications that do not include the President. In the other case, the government complied with an order and asked the court not to read much into the compliance. What remains open is not whether either statute means what it says. It is whether a court asked to review a decision can do so when the instructions behind it are the one part of the record the President has said it may not see.

Sources

  • ABC News. (2026, October 15). “Trump claims executive privilege to keep Kennedy Center conversations secret”. Steven Portnoy and Katherine Faulders. Coverage of the Hoyt declaration and the government’s response, cited here as coverage, with the record at ECF 106 and ECF 106-1.
  • Beatty v. Trump, No. 1:25-cv-04480 (CRC). CourtListener docket. Source of the filing list for the week, of the October 14 minute order setting the October 30 and November 6 dates and staying summary judgment briefing, and of the sealed entry at ECF 107 and its exhibit title.
  • Declaration of Joshua T. Hoyt. (2026, October 14). Declaration of Joshua T. Hoyt, ECF 106-1. Beatty v. Trump, No. 1:25-cv-04480 (CRC) (D.D.C.). Source of “At the direction of the President, I submit this declaration formally invoking the presidential communications privilege with respect to information, documents, and communications requested in discovery by Plaintiff”, “his advisors (government and non-government)”, “This includes communications that do not include the President but are to or from his advisors and/or Kennedy Center staff and for the purpose of gathering information, exploring alternatives, and preparing recommendations for the President”, “communications involving Secretary Howard Lutnick that relayed presidential decision-making or were intended to inform presidential deliberations”, “These communications were intended to be confidential and have remained confidential”, and the enumeration of the requests for production, interrogatories, requests for admission and deposition passages covered.
  • Defendant’s Notice of Compliance. (2026, October 16). Defendant’s Notice of Compliance with Court Order (Dkt. 57), ECF 59. Phang v. Blanche, No. 1:26-cv-01417 (EGS) (D.D.C.). Source of the 10:55 a.m. hand delivery on October 16, 2026, the binder’s contents, the duplicative-records explanation for the September 24 submission, the reading of the October 9 order as directing redactions to documents already deemed duplicative, “should not be taken as a representative sample of what could be done, or what would happen, if the Department were required to redact and produce handwritten notes on a larger scale”, and the request to stay any production order to permit appellate review.
  • Defendant’s Reply. (2026, October 13). Defendant’s Reply In Support of Motion for Leave of Court to Postpone Deadline, ECF 58. Phang v. Blanche, No. 1:26-cv-01417 (EGS) (D.D.C.). Source of “Despite all of the charged rhetoric throughout Plaintiff’s 12-page response to a 3-page procedural motion, the motion is just that: a routine procedural motion”, “the government does not read the standing order the way Plaintiff has presented it”, “different in nature”, “Of course, the deadline is the end of the day unless the Court orders otherwise”, “has already disclosed all disclosable information that could conceivably go in an Administrative Record”, and “in no way waives the argument that the Court lacks jurisdiction to engage in such a review”.
  • Defendants’ Response to Motion to Compel. (2026, October 14). Defendants’ Response to Motion to Compel, ECF 106. Beatty v. Trump, No. 1:25-cv-04480 (CRC) (D.D.C.). Source of “Requests for discovery that pertain to the President of the United States are no ordinary matter”, “whether the Board, in voting to temporarily close the Center for necessary renovations and restorations, complied with its fiduciary and statutory duties”, “has already obtained extensive discovery—far more than needed—to address that narrow issue”, “approximately 6,800 pages [now more than 7500 pages] of documents and responses to 44 requests for admission”, “Plaintiff, a dissenting ex officio trustee, opposes temporary closure. That is the dispute in front of the Court, and these requests quite simply are not relevant to it”, “That the President also serves as the Chairman of the Board is of no moment”, and the waiver argument resting on “the information specifically released”.
  • Huffman, P. (2026, October 10). Docket Report: October 10, 2026. The carry-forward posture for all three dockets: the operative orders, the state of discovery, and the state of the appeal.
  • NBC News. (2026, October 15). “Trump invokes executive privilege in Kennedy Center court fight”. Dareh Gregorian and Gary Grumbach. Coverage of the Hoyt declaration, cited here as coverage, with the record at ECF 106 and ECF 106-1.
  • Order. (2026, October 7). Opinion and Order on the motions to seal and unseal, ECF 99. Beatty v. Trump, No. 1:25-cv-04480 (CRC) (D.D.C.). Source of the October 14 deadline for proposed redactions, the October 19 deadline for Beatty’s response, “must be narrowly tailored and specifically supported”, and the identification of ECF 65-1 as the JLL Plan.
  • Order. (2026, October 9). Order on Plaintiff’s Position Statement on discovery, ECF 103. Beatty v. Trump, No. 1:25-cv-04480 (CRC) (D.D.C.). Source of “The Court will await completion of the briefing on executive privilege before addressing Plaintiff’s objections concerning that issue”, of the extension of discovery through October 23, and of the direction to the parties to propose a revised schedule.
  • Parties’ Proposed Briefing Schedule. (2026, October 13). Parties’ Proposed Briefing Schedule, ECF 104. Beatty v. Trump, No. 1:25-cv-04480 (CRC) (D.D.C.). Source of the government’s proposed October 16 and October 23 dates and its position that “any extension of the briefing schedule for the dissolution motion would significantly prejudice Defendants”, and of the plaintiff’s proposed October 30 and November 6 dates, “should remain due 1-week following the close of discovery on October 23, 2026”, and “would have no option but to move for an extension of that date based on the practical infeasibility of filing in three days”.
  • Phang v. Blanche, No. 1:26-cv-01417 (EGS). CourtListener docket. Source of the filing list, the absence of any minute entry in the week, and the absence of any order on ECF 51, ECF 52 or ECF 56.
  • Phang v. Blanche, Nos. 26-5299, 26-5334 (D.C. Cir.). CourtListener docket. Source of the entry list for the appeal, of the absence of any filing after September 29, and of the absence of any ruling on the stay motion.

PRH | huffmanwrites.org | © Philip Huffman