As to the four housing finance reform documents over which defendant asserted the
presidential communications privilege (UST00500982, UST515290, UST521902, and
UST550441), this court found that none of them was protected by the privilege. Fairholme
Funds, 128 Fed. Cl. at 459-60. Despite the sworn declaration of Nicholas R. McQuaid, Deputy
White House Counsel, see id. at 438, this court found that (1) it could not “verify either the
authors or recipients of [the first of] the [four] draft document[s]”; (2) it could not ascertain the
title of one of the individuals listed on the second document; and (3) it could not verify that the
third document “was sent, let alone drafted by, Mr. Sperling[, the Director of the National
Economic Council].” Id. at 459. As to the fourth document, this court found that it was “subject
to the presidential communications privilege because it consist[ed] of a deliberative
communication between three of the President’s senior staff in the course of fulfilling their roles
as advisors on the timing of housing reform.” Id. This court proceded to conclude, however,
that because plaintiffs had made a sufficient showing that the evidence was both important and
unavailable from another source, all four documents had to be disclosed. Id. at 459-60. On
review, the Federal Circuit overturned this court’s ruling as to the application of the presidential
communications privilege to these four documents. In re. United States, 2017 WL 406243, at
*7-8. Having found that the presidential communications privilege barred disclosure, the Federal
Circuit declined to address whether or not the deliberative process privilege also applied to three
of the documents within this category. Id. at *7
