Trump lashes out at Gov. Doug Ducey following certification

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New Reporting Paints Trump In Incriminating Role In Sensitive Documents Scandal
by Alex Wagner
MSNBC
Aug 23, 2022

Carol Leonnig, investigative reporter for the Washington Post, talks with Alex Wagner about new reporting that shows the extent, and sometimes even exclusivity of Donald Trump's role in misappropriating sensitive documents from the White House after he was voted out of office.



Transcript

0:00
last night we learned from the new york
0:01
times that the national archives
0:03
recovered more than 150 classified
0:06
documents from trump's florida home in
0:07
january which were squirreled away in 15
0:10
boxes of documents we also learned that
0:12
trump personally went through those
0:14
documents before he turned them over
0:17
in a bid to somehow help the former
0:19
president trump right-wing media ally
0:21
john solomon late last night published a
0:24
letter from the national archives to one
0:26
of trump's lawyers it's dated may 10th
0:29
now solomon hyped this letter as
0:31
evidence that somehow biden had sicked
0:33
the fbi on trump but as it turns out
0:37
solomon was really sort of shooting
0:38
himself or rather donald trump in the
0:40
foot
0:42
for starters this may letter from the
0:44
national archives confirms the new york
0:46
times reporting that over 100 documents
0:48
retrieved by the government in january
0:50
from mar-a-lago that they were marked
0:51
classified
0:53
the national archivist details that
0:55
specifically it was over 700 pages of
0:58
classified information just hanging out
1:00
at mar-a-lago
1:02
included in some of these were documents
1:04
with some of the very highest levels of
1:05
classification including special access
1:08
program materials which even if you have
1:10
top security clearance you still need
1:12
additional clearance to see that kind of
1:14
document
1:16
the letter again the letter somehow
1:18
meant to exonerate trump and implicate
1:20
biden it also confirms that trump and
1:22
his crew had been dragging their feet
1:24
for weeks asserting bogus claims of
1:27
executive privilege in an attempt to
1:29
delay the seized documents from being
1:31
handed over to the justice department
1:34
so while the archives retrieved the
1:35
boxes of documents in january the fbi
1:38
and the doj didn't get access to the
1:41
contents of those boxes until the month
1:43
of may
1:45
donald trump clearly has a different
1:46
definition of cooperation than most of
1:49
us do
1:50
but that is not all
1:52
in june when the justice department
1:53
officials went to mar-a-lago to ask
1:55
donald trump hey are there any more
1:56
classified documents lying around
1:59
trump's former crossfit lawyer
2:01
reportedly signed a statement saying
2:03
that trump had handed over all those
2:04
documents she signed a statement
2:06
affirming yes that is it nothing else to
2:09
see here folks
2:10
but even after that june visit even
2:13
after trump's attorney swore there were
2:15
no more classified documents in
2:16
mar-a-lago double pinky swear
2:19
the justice department wasn't convinced
2:21
so on august 8th the fbi executed a
2:23
search warrant where they found
2:26
you guessed it more documents at
2:28
mar-a-lago marked top secret
2:31
the new york times reported lot late
2:33
last night that in fact federal agents
2:35
in total have now retrieved over 300
2:38
classified documents which is hundreds
2:40
and hundreds of pages of classified
2:42
material from mar-a-lago
2:44
that record of obfuscation and foot
2:47
dragging and false statements is
2:48
apparently donald trump's definition of
2:50
complete cooperation
2:53
and we have breaking news tonight about
2:55
that supposed cooperation the washington
2:58
post reports what happened when archives
3:00
first received the documents in january
3:03
quote when archives employees began
3:05
opening up and sifting through the
3:07
material they noticed an immediate
3:08
problem the boxes arrived without any
3:11
kind of logs or inventories to describe
3:13
their content according to a person
3:15
familiar with the recovery instead they
3:17
contained a hodgepodge of documents
3:19
including some that didn't even come
3:21
from trump's time in the white house
3:23
but some of the white house records had
3:24
obvious markings indicating they were
3:26
classified
3:28
now nbc news has not yet confirmed this
3:30
reporting the washington post report
3:32
continues to chronicle how the fbi
3:34
conducted its investigation and just how
3:37
just precisely how involved donald trump
3:40
was personally with overseeing the
3:42
documents
3:43
quote as the fight with the archives
3:45
came to an uneasy conclusion the fbi
3:48
proceeded with interviews with others in
3:50
trump's orbit including vales and former
3:52
white house staffers agents were told
3:55
that trump was a pac rat who had been
3:57
personally overseeing his collection of
3:59
white house records since even before
4:01
leaving washington had had and had been
4:03
reluctant to return anything
4:06
the fbi became increasingly convinced
4:08
that the former president continued to
4:10
hold classified documents in florida it
4:12
could not be determined who was involved
4:14
with packing the boxes at mar-a-lago or
4:17
why some white house documents were not
4:18
sent to the archives though people
4:20
familiar with the episode said trump
4:22
oversaw the process himself
4:24
and did so with great secrecy declining
4:28
to show some items even to his top aides
4:32
some material recovered in the search is
4:34
considered extraordinarily sensitive
4:36
because it could reveal carefully
4:37
guarded secrets about u.s intelligence
4:40
gathering methods one of them said the
4:42
information is among the most sensitive
4:44
secrets we hold
4:46
around that time trump attorneys evan
4:49
corcoran and christina bob together
4:50
provided the justice department with a
4:52
written assurance about trump having
4:54
returned classified materials a person
4:56
familiar with the matter said the person
4:58
did not provide the specific wording of
4:59
the letter which was signed by bob a
5:02
person familiar with the matter said the
5:03
document is of interest to the fbi which
5:06
is investigating the veracity of its
5:08
claims joining us now is washington post
5:11
national reporter carol lenning who is
5:13
bylined on the story tonight carol thank
5:15
you so much for being here it is
5:17
breaking and it is
5:19
it is explosive i think the first thing
5:21
that at least grabbed me in reading this
5:23
article is just how deeply the former
5:26
president appears to have been in
5:28
selecting these documents what more can
5:30
you tell us about that
5:34
well what's clear in the both the
5:37
interviews we've done with sources and
5:39
also as revealed in a lot of new records
5:42
and letters that are coming out is that
5:44
the president was very involved the
5:46
former president was very involved in at
5:49
the last minute hastily and chaotically
5:52
packing up his his documents that he
5:55
thought were quote-unquote his to and
5:57
arranging for them to be taken to
5:59
mar-a-lago his private club and
6:01
part-time residents and that also
6:03
importantly alex despite the government
6:07
despite the the former president's claim
6:09
that all he's done has been cooperative
6:11
what we found is that
6:13
week after week he was the person
6:16
resisting providing records he was the
6:19
person along with his lawyers asking for
6:22
delay in allowing the fbi, for example, to
6:25
look over the classified records that
6:28
they found --
6:30
to their horror, to their shock --
6:32
in a group of 15 boxes of records that
6:35
they retrieved from mar-a-lago. and so
6:38
the president is really the former
6:40
president is very very much at the
6:42
center of this drama and now his own
6:46
um advisers legal and otherwise
6:50
are growing increasingly concerned, and
6:53
have been since june, that this is a
6:56
criminal
6:57
investigation in which the former
6:59
president is in legal jeopardy
7:01
ultimately of his own making. that if,
7:04
perhaps, he had turned over the records
7:06
willingly, and and forthrightly, right
7:09
away in january, or in decembe,r or in the
7:11
fall of 2021, all of these times that it
7:15
was asked for, that it might not have
7:17
morphed into a criminal investigation.
7:20
looking at the willful retention of
7:24
some of the highest and most sensitive
7:26
secrets our government holds
7:28
yeah i think we should focus on that a
7:30
little bit because this isn't like a
7:31
former president sitting at his kitchen
7:33
table leafing through memorabilia that
7:35
he mistakenly brought home right i mean
7:37
you you specifically say in the story
7:39
that he was going through these
7:40
documents with quote great secrecy
7:43
declining to show some items even to top
7:45
aides
7:46
and what are we talking about carol i
7:48
mean the some of the most sensitive
7:50
secrets
7:51
we hold
7:52
can you talk more about that? and just
7:55
the amount of, i mean not only the
7:57
recognition of that among the
8:00
people reporting on this story, but
8:01
within the trump circle, it sounds like
8:04
nobody really wanted to touch this case
8:05
with a 10-foot pole
8:09
oh such a good point and i promise we
8:12
will circle back to that alex about the
8:14
10-foot pole that a lot of people were
8:16
avoiding taking hold of um so your first
8:19
question about the sensitivity of this
8:21
material as described in the inventory
8:24
some of this material is top secret
8:27
secure compartmented information that
8:29
means that people have to as you
8:31
described earlier so well
8:33
people
8:34
who are in government have to have a
8:36
absolute reason to know
8:38
and access this information as part of
8:40
their job it has to be somebody who's
8:42
incredibly trustworthy and has this very
8:45
high security clearance and usually
8:47
secure compartmented information
8:50
involves intelligence gathering methods
8:52
the records that were seized on august
8:56
8th just as the fbi and the department
8:59
of justice feared
9:01
were some of those holiest of holy kinds
9:04
of records that if shared
9:06
indiscriminately or handled carelessly
9:09
in a private restaurant club
9:13
if ever on if other if ever disclosed
9:17
would cause immediate
9:19
grave danger to national security
9:21
because it would reveal how the us
9:24
gathers the intelligence that he that it
9:26
has that includes for example you know
9:30
how
9:31
which allies provide us special
9:33
intelligence that they don't share with
9:35
others
9:36
that includes for example uh
9:39
covert programs that we have that gather
9:41
intelligence and if those details were
9:44
revealed to a foreign adversary
9:46
our chances of protecting national
9:48
security would be greatly diminished
9:51
grave threats now you asked that good
9:54
question about people who during this
9:56
period who worked for donald trump or
9:58
were in the trump orbit trying to avoid
10:01
being involved in this case
10:03
starting in the fall of 2021 donald
10:06
trump was resisting turning over records
10:08
he believed were quote unquote mine
10:11
meaning his
10:12
and the archives knew
10:15
that he had a lot of records the things
10:17
were missing that they needed them
10:20
eventually donald trump's team turned
10:22
over 15 boxes of records the shocker for
10:25
people who had previously worked in
10:28
president trump's white house counsel's
10:30
office was that those records included
10:33
highly classified materials when they
10:36
were notified in particular deputy white
10:38
house counsel patrick philbin when he
10:40
was notified in april that the national
10:43
archives found that there was classified
10:45
information in these documents he was
10:48
stunned and
10:50
he was being asked at that time to help
10:53
team trump review the records to go up
10:56
to the national archives and review what
10:58
had been uh turned over and figure out
11:00
what's in what are in these boxes which
11:02
you would think they would have looked
11:04
before
11:05
but patrick philbin and others backed
11:07
away from this request by team trump
11:10
and pretty soon the fbi was knocking on
11:13
their doors asking the deputy white
11:15
house counsels
11:16
we need to interview you you're now a
11:19
subject witness you may be a witness for
11:21
us about what's going on in this
11:24
withholding of what appear to be
11:26
incredibly sensitive documents
11:29
at this point can you really blame any
11:31
lawyer who doesn't want to work for
11:33
donald trump carol lenning washington
11:35
post national reporter thank you so much
11:37
for joining us this evening and with
11:39
that breaking news to boot
11:48
[Music]
12:00
you

[admin]

‘This Is A Damning Letter’: Attorney Baffled By Trump Team’s Decision To Release Archives Letter
by Lawrence O'Donnell
MSNBC
Aug 23, 2022

I write in response to your letters of April 29, 2022, and May 1, 2022, requesting that the National Archives and Records Administration (NARA) further delay the disclosure to the Federal Bureau of Investigation (FBI) of the records that were the subject of our April 12, 2022 notification …

NARA had ongoing communications with the former President’s representatives throughout 2021… which resulted in the transfer of 15 boxes of records to NARA in January 2022… within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel’s Office—affirming a request from the Department of Justice supported by an FBI letterhead memorandum—formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes…

[T]he Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,… if such records contain information that is needed for the conduct of current business of the incumbent President’s office" … Those conditions are satisfied here. As the Department of Justice’s National Security Division explained to you on April 29, 2022:

There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials ... among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials … for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting…and take any necessary remedial steps…

We advised you in writing on April 12 that, “in light of the urgency of this request,” we planned to “provid[e] access to the FBI next week,” i.e., the week of April 18… In response to a request from another representative of the former President, the White House Counsel’s Office acquiesced in an extension of the production date to April 29…

It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes… Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then to consult with the former President “so that he may personally make any decision to assert a claim of constitutionally based privilege.”…

President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported “protective assertion of executive privilege.”…

The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.”…

[A] former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.”… [A]n “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.”…

The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” … [T]here is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking.” … Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” …

Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a “protective assertion of executive privilege”…

[T]here is no realistic basis that the requested delay would result in a viable assertion of executive privilege against the incumbent President that would prevent disclosure of records for the purposes of the reviews described above. Accordingly, the only end that would be served by upholding the “protective” assertion here would be to delay those very important reviews…

[T]here is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022…

[T]he former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance.

-- Full text of National Archives letter to Trump on classified documents

MSNBC’s Lawrence O’Donnell speaks to national security attorney Mark Zaid, former federal prosecutor Glenn Kirschner, and former U.S. Attorney Harry Litman about the decision by Donald Trump and his allies to release a letter they received from the National Archives that described the back and forth over the over 700 government documents that were taken to Mar-a-Lago at the end of Trump’s presidency.



Transcript

0:00
[lawrence o'donnell] mark, let me begin with you. from the
0:02
defense attorney's perspective, let's
0:04
assume that
0:06
somehow, donald trump found his way to
0:09
a competent criminal defense attorney in
0:11
this situation. uh, first of all, would you
0:16
have made that letter public? and then
0:18
secondly,
0:19
what does that letter tell you
0:22
about the challenges
0:24
facing donald trump's defense?
0:28
[mark zaid] i didn't understand from the moment i
0:30
read the letter,
0:31
why this was being released by the trump
0:35
team! you know, as you and
0:38
others have been describing, not by the
0:40
legal team, but by his supporters. like
0:42
john solomon. there's nothing in this
0:45
letter that -- as you've just laid out -- that
0:49
puts the president in any positive light
0:52
whatsoever. i don't particularly get
0:55
it. i agree with the legal analysis
0:57
that's in this letter. i will tell you, i
0:59
have worked with the national archives
1:01
many times over the years. i have helped
1:03
them recover stolen property. i have sued
1:05
the national archives many times. in fact,
1:08
i think i'm in
1:09
a couple of current lawsuits against
1:10
them now.
1:11
their top leadership
1:13
that has been there for many years, are
1:15
experts on classification. in fact, a
1:18
former classification czar is in the
1:21
leadership. their general counsel,
1:23
mentioned in the letter, has been there
1:24
for decades. these are people who know
1:28
what they are doing. they are neutral.
1:30
they are non-partisan. this is a damning
1:33
letter against president trump and his
1:36
legal team.
1:37
[lawrence o'donnell] uh, glenn kirschner -- so we've heard from the
1:39
defense.
1:42
that's as good a defense lawyer as you
1:44
can get. and he's not seeing exactly
1:46
where you go with this on the trump
1:48
defense side.
1:51
[glenn kirschner] yeah, there really is nowhere to go. there
1:53
is no safe haven for donald trump. um, no
1:57
matter what his attorneys try to throw
1:59
into the mix, lawrence, it only makes
2:01
matters worse. and you know as bad as
2:04
that letter from the national archives
2:06
is for him because it, you know, discloses
2:09
that there are some of our most
2:11
important national secrets that
2:14
apparently were residing at
2:16
mar-a-lago, being rummaged through by who
2:20
knows who, but you know i read
2:22
something recently that i think is
2:25
even worse for donald trump. and that was --
2:27
and you spent a lot of time on it last
2:29
night when the new york times reported
2:31
that mr trump went through the boxes
2:35
himself in late 2021. now first of all,
2:39
that means he was concealing these
2:41
documents on the property at mar-a-lago
2:44
for a very long time, from late 2021
2:48
until the search warrant was executed by
2:50
the fbi in august of 2022. but even more
2:53
importantly, that has both legal
2:55
consequences and even more importantly
2:57
practical consequences, the legal
3:00
consequences is when you have a crime
3:02
that involves possession, like
3:04
mishandling of classified documents, or
3:06
national defense information, prosecutors
3:08
have to prove that the defendant handled
3:11
them, and mishandled them. and you know,
3:14
the law has two kinds of possession:
3:16
actual possession -- when you're grabbing
3:18
hold of something, and constructive
3:20
possession-- like when donald trump said
3:22
they put those boxes in a storage shed, he
3:25
may never have touched the boxes. but he
3:27
directed that they'd be placed in a
3:29
location over which he had control and
3:32
access. that's the very definition of
3:34
constructive possession. but you know, we
3:36
prosecutors are a conservative bunch -- not
3:39
necessarily politically -- but we don't
3:41
like to take risks. we like to bring
3:42
really strong cases. and lawrence, once i
3:45
saw the reporting that donald trump went
3:48
through the boxes himself, that will give
3:51
prosecutors a real
3:53
comfort level about bringing charges
3:56
that involve donald trump personally
3:59
mishandling classified or national
4:02
defense information.
4:04
and harry litman, the times, when it
4:06
reported that line that "mr trump went
4:09
through the boxes himself", that's the
4:12
source, is that it's -- i'm going to read
4:14
the line again as they reported it: "mr
4:16
trump went through the boxes himself in
4:17
late 2021 according to multiple people
4:21
briefed on his efforts before turning
4:23
them over." so harry, that indicates
4:25
there are multiple potential witnesses
4:28
to this
4:30
piece of evidence that donald trump
4:32
actually went through the boxes himself.
4:34
[lawrence o'donnell] assuming he did, and let's make one more
4:36
assumption: let's assume donald trump
4:38
didn't have any idea that there was any
4:41
information at all at his home
4:44
until december of 2021. that's a big leap
4:47
in donald trump's favor. just for the
4:48
moment let's pretend he didn't know, and
4:51
he discovers them in december of 2021,
4:53
and as the times says, he went through the
4:55
boxes himself,
4:57
what is his obligation upon going
4:59
through those boxes, and seeing that they
5:02
are government documents, presidential
5:05
documents that belong to the government?
5:07
that's set one. and set two, within that
5:11
there are plenty of documents, hundreds
5:13
it turns out, labeled
5:15
classified? what is donald
5:18
trump's legal obligation when he looks
5:20
at those boxes?
5:22
[harry litman] well, i'll tell you one thing it isn't:
5:24
that's to conceal them and lie about
5:28
them. this letter is so damning for
5:31
the reasons you said. but two other
5:34
things to really point out. the first is,
5:37
you know, he's brazen, but he has a
5:40
really small playbook. he's a one-trick
5:42
pony. he's doing the exact same argument
5:46
now about executive privilege. so his
5:49
ally has just published an entire
5:52
legal analysis. and it's not just from
5:54
the archivist, by the way. she checks with
5:56
the doj, the office of legal counsel. so
5:59
it you know, completely trashes his
6:02
legal claim. that's for starters. and now
6:05
second, in this ongoing, what are
6:08
things going to look like thursday, he
6:10
has led with his chin
6:12
in a way that now the department can
6:14
come in and say, oh well, besides this
6:17
letter, let me tell you what really
6:19
happened. and there will now be the
6:22
public accounting of the most important
6:25
aspect that would ever come out in the
6:28
redacted
6:30
version, which is all the back and forth.
6:33
remember, this letter's from may --
6:35
four more weeks -- and then more and more
6:38
and more. so he's given the doj an
6:40
opportunity to just slap him around, and
6:44
make the magistrate come thursday say,
6:47
you know, this has been sort of revealed.
6:49
we can do it in a more eliptical way. so
6:52
that's a long-winded way of answering
6:53
your question. but the main point is
6:56
obligation -- you know, whether or not he
6:58
needs to return it right away, and any of
7:00
us would. glenn would affirm. you see
7:02
documents like that, your head spins if
7:04
they're outside of a skiff.
7:07
you may not continue to conceal them and
7:09
lie about them, and if you do,
7:12
you're looking at 20-year statute that
7:16
7:19
they found in the search warrant here,
7:21
which is obstruction. so once you have
7:24
his knowledge, the obstruction follows
7:27
much more clearly.
7:31
[lawrence o'donnell] and mark, another point on obstruction. this letter from the
7:33
archives specifies to donald trump's
7:36
lawyers that these documents need to be
7:39
handed over to the fbi
7:42
for a criminal investigation. this letter
7:45
is dated may 10th. here's donald trump's
7:47
lawyer holding this in his hands on may
7:50
10th. if he doesn't know it before, he
7:52
knows it now: the fbi is doing a criminal
7:54
investigation of donald trump's handling
7:57
of these documents. that's may 10th. june
7:59
2nd, fbi agents and justice department
8:02
lawyers, come down to donald trump's
8:04
house in florida.
8:06
and the lawyers, the lawyer who got that
8:08
letter, hands over more documents,
8:10
but keeps some that are not handed over
8:15
at that time.
8:17
what does that do to this case?
8:20
[mark zaid] well i think it shows, for one, that there
8:22
is more than just donald trump who's
8:24
potentially facing legal liability. it
8:27
may be some of the lawyers. it's going to
8:29
depend on what they knew when they
8:31
filed this attestation that there was no
8:34
longer any classified documents at
8:36
mar-a-lago, which clearly wasn't true
8:38
since we know by the fbi
8:40
seizure. so it brings in a lot of play.
8:43
but the other thing that this letter
8:44
shows,
8:45
people have been wondering about this motion
8:47
that donald trump and his legal team
8:49
filed yesterday, which is
8:52
horrible. quite frankly, i would fire
8:54
anyone who wrote it if they were working
8:56
for my firm. uh that letter, people
8:59
were saying, "why did it take two weeks to
9:01
file the motion, you know, if you're
9:03
asking for a special master to look at
9:04
this information? and we can talk about
9:06
that if you want, because it's a separate
9:07
issue also. but if you waited that long,
9:10
why? but this letter even shows more,
9:13
because here it is they're put on notice,
9:15
back in may, that actually the former
9:17
president has the right to have
9:19
representatives review the documents
9:22
that are in its possession, to to do its
9:25
own classification review if they wanted,
9:28
so long as they had the proper security
9:29
clearance. i believe that is even john
9:32
solomon that is being referred to in
9:34
this letter. have we heard? and kash
9:37
patel, the other one who's been speaking
9:38
about this, you know, "i wave my magic hand and
9:41
the documents are declassified," have we
9:43
heard them say anything about getting
9:45
access? no. and i would like to know why.
9:48
that is, have they made an effort to get
9:50
access? they were even offered access to
9:53
the unclassified information so that
9:55
they could do an inventory. we haven't
9:57
heard anything about that either. and i
9:59
think we can agree that if there's
10:01
silence from the trump camp, it's because
10:03
they actually think it doesn't help them.
10:05
that means, i really want to know what it
10:07
was, and what the answers are.


************************************

Full text of National Archives letter to Trump on classified documents

May 10, 2022

Evan Corcoran
Silverman Thompson
400 East Pratt Street
Suite 900
Baltimore, MD 21202

By Email

Dear Mr. Corcoran:

I write in response to your letters of April 29, 2022, and May 1, 2022, requesting that the National Archives and Records Administration (NARA) further delay the disclosure to the Federal Bureau of Investigation (FBI) of the records that were the subject of our April 12, 2022 notification to an authorized representative of former President Trump.

As you are no doubt aware, NARA had ongoing communications with the former President’s representatives throughout 2021 about what appeared to be missing Presidential records, which resulted in the transfer of 15 boxes of records to NARA in January 2022. In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel’s Office—affirming a request from the Department of Justice supported by an FBI letterhead memorandum—formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes.

Although the Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” such records “shall be made available . . . to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B). Those conditions are satisfied here. As the Department of Justice’s National Security Division explained to you on April 29, 2022:

There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch.

We advised you in writing on April 12 that, “in light of the urgency of this request,” we planned to “provid[e] access to the FBI next week,” i.e., the week of April 18. See Exec. Order No. 13,489, § 2(b), 74 Fed. Reg. 4,669 (Jan. 21, 2009) (providing a 30-day default before disclosure but authorizing the Archivist to specify “a shorter period of time” if “required under the circumstances”); accord 36 C.F.R. § 1270.44(g) (“The Archivist may adjust any time period or deadline under this subpart, as appropriate, to accommodate records requested under this section.”). In response to a request from another representative of the former President, the White House Counsel’s Office acquiesced in an extension of the production date to April 29, and so advised NARA. In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.

It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews. Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then to consult with the former President “so that he may personally make any decision to assert a claim of constitutionally based privilege.” Your April 29 letter further states that in the event we do not afford you further time to review the records before NARA discloses them in response to the request, we should consider your letter to be “a protective assertion of executive privilege made by counsel for the former President.”

The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported “protective assertion of executive privilege.” See 36 C.F.R. § 1270.44(f)(3). Accordingly, I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my “determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.” Exec. Order No. 13,489, § 4(a).

The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B).

To the contrary, the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. In Nixon v. GSA, the Court rejected former President Nixon’s argument that a statute requiring that Presidential records from his term in office be maintained in the custody of, and screened by, NARA’s predecessor agency—a “very limited intrusion by personnel in the Executive Branch sensitive to executive concerns”—would “impermissibly interfere with candid communication of views by Presidential advisers.” Id. at 451; see also id. at 455 (rejecting the claim). The Court specifically noted that an “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.” Id. at 452; see also id. at 441-46 (emphasizing, in the course of rejecting a separation-of-powers challenge to a provision of a federal statute governing the disposition of former President Nixon’s tape recordings, papers, and other historical materials “within the Executive Branch,” where the “employees of that branch [would] have access to the materials only ‘for lawful Government use,’” that “[t]he Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch”; and concluding that “nothing contained in the Act renders it unduly disruptive of the Executive Branch”).

It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are “sensitive to executive concerns.” Id. at 451. And on the other side of the balance, there is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking.” Id. at 450. To the contrary: Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” Id. at 449.

Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a “protective assertion of executive privilege,” which the Assistant Attorney General informs me has never been made outside the context of a congressional demand for information from the Executive Branch. Even assuming for the sake of argument that a former President may under some circumstances make such a “protective assertion of executive privilege” to preclude the Archivist from complying with a disclosure otherwise prescribed by 44 U.S.C. § 2205(2), there is no predicate for such a “protective” assertion here, where there is no realistic basis that the requested delay would result in a viable assertion of executive privilege against the incumbent President that would prevent disclosure of records for the purposes of the reviews described above. Accordingly, the only end that would be served by upholding the “protective” assertion here would be to delay those very important reviews.

I have therefore decided not to honor the former President’s “protective” claim of privilege. See Exec. Order No. 13,489, § 4(a); see also 36 C.F.R. 1270.44(f)(3) (providing that unless the incumbent President “uphold[s]” the claim asserted by the former President, “the Archivist discloses the Presidential record”). For the same reasons, I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.

Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance. Please contact my General Counsel, Gary M. Stern, if you would like to discuss the details of such a review, such as you proposed in your letter of May 5, 2022, particularly with respect to any unclassified materials.

Sincerely,

DEBRA STEIDEL WALL

Acting Archivist of the United States

[admin]

Paperless Order
by Judge Aileen M. Cannon
Trump v. United States (9:22-cv-81294)
Aug 23, 2022

https://storage.courtlistener.com/recap ... .1.0_6.pdf
Trump v. United States (9:22-cv-81294)
District Court, S.D. Florida
Last Updated: Aug. 24, 2022, 10:05 p.m. EDT
Assigned To: Aileen M. Cannon
Date Filed: Aug. 22, 2022
Date of Last Known Filing: Aug. 24, 2022
Cause: Motion for Judicial Review
Nature of Suit: 890 Other Statutory Actions
Jury Demand: None
Jurisdiction Type: U.S. Government Defendant

1
Aug 22, 2022
COMPLAINT/Motion for Judicial Oversight and Additional Relief against United States of America. Filing fees $ 402.00, filed by Donald J. Trump. (Attachments: # 1 Civil Cover Sheet, # 2 Text of Proposed Order)(jas) (Entered: 08/22/2022)
Main Doc­ument
Complaint
Attach­ment 1
Civil Cover Sheet
Attach­ment 2
Text of Proposed Order

2
Aug 22, 2022
Clerks Notice of Judge Assignment to Judge Aileen M. Cannon. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Bruce E. Reinhart is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (jas) (Entered: 08/22/2022)
Main Doc
Clerk's Notice of Judge Assignment

3
Aug 22, 2022
NOTICE OF CONVENTIONAL FILING of 1 COMPLAINT/Motion for Judicial Oversight and Additional Relief by Donald J. Trump. (jas) (Entered: 08/22/2022)
Main Doc
Notice of Conventional Filing

4
Aug 22, 2022
Clerk's Notice of Filing Deficiency Re: 1 Complaint filed by Donald J. Trump. Document(s) were filed conventionally that should have been filed electronically (CM/ECF Administrative Procedures). (jas) (Entered: 08/22/2022)
Main Doc
Clerk's Notice of Filing Deficiency

5
Aug 22, 2022
MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for M. Evan Corcoran. Filing Fee $200.00 Receipt # 15943 by Donald J. Trump. Responses due by 9/6/2022. (Attachments: # 1 Text of Proposed Order)(jas) (Entered: 08/22/2022)
Main Doc
Motion to Appear Pro Hac Vice
Att 1
Text of Proposed Order

6
Aug 22, 2022
MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for James M. Trusty. Filing Fee $200.00 Receipt #15943 by Donald J. Trump. Responses due by 9/6/2022. (Attachments: # 1 Text of Proposed Order) (jas) (Entered: 08/22/2022)
Main Doc
Motion to Appear Pro Hac Vice
Att 1
Text of Proposed Order

7
Aug 22, 2022
Clerks Receipt for Filing Fee, Two Pro Hac Vice Motions DE# 5, 6 received on 8/22/2022 in the amount of $802.00, receipt number 15943. (jas) (Entered: 08/22/2022)
Main Doc
Clerk's Receipt

9
Aug 22, 2022
Clerk's Notice of Filing Deficiency Re: 5 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for M. Evan Corcoran. Filing Fee $200.00 Receipt #15943 filed by Donald J. Trump, 6 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for James M. Trusty. Filing Fee $200.00 Receipt #15943 filed by Donald J. Trump. Document(s) were filed conventionally that should have been filed electronically (CM/ECF Administrative Procedures). (jas) (Entered: 08/23/2022)
Main Doc
Clerk's Notice of Filing Deficiency
Aug 22, 2022
Clerk's Notice of Judge Assignment and Optional Consent

8
Aug 23, 2022
PAPERLESS ORDER denying without prejudice 5 6 Motions to Appear Pro Hac Vice, Consents to Designation, and Requests to Electronically Receive Notices of Electronic Filing for M. Evan Corcoran and James M. Trusty. Local counsel is instructed to refile the motions in strict accordance with Local Rule 4(b) of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys. A sample motion can be found on the Court's website at https://www.flsd.uscourts.gov/pro-hac-vice-appearance. Signed by Judge Aileen M. Cannon on 8/23/2022. (dsy) (Entered: 08/23/2022)
Main Doc
Order on Motion to Appear Pro Hac Vice

10
Aug 23, 2022
PAPERLESS ORDER: The Court is in receipt of 1 Plaintiff's Motion for Judicial Oversight and Additional Relief. To facilitate appropriate resolution, on or before August 26, 2022, Plaintiff shall file a supplement to the Motion further elaborating on the following: (1) the asserted basis for the exercise of this Court's jurisdiction, whether legal, equitable/anomalous, or both; (2) the framework applicable to the exercise of such jurisdiction; (3) the precise relief sought, including any request for injunctive relief pending resolution of the Motion; (4) the effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart; and (5) the status of Plaintiff's efforts to perfect service on Defendant. Signed by Judge Aileen M. Cannon on 8/23/2022. (AMC) (Entered: 08/23/2022)
Main Doc
Order

11
Aug 23, 2022
MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for James M. Trusty. Filing Fee $200.00 Receipt #15943 by Donald J. Trump. Responses due by 9/6/2022 (Attachments: # 1 Text of Proposed Order. (jas) (Entered: 08/24/2022)
Main Doc
Motion to Appear Pro Hac Vice
Att 1
Text of Proposed Order

12
Aug 23, 2022
NOTICE OF CONVENTIONAL FILING of 11 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for James M. Trusty. Filing Fee $200.00 Receipt #15943 by Donald J. Trump. (jas) (Entered: 08/24/2022)
Main Doc
Notice of Conventional Filing

13
Aug 23, 2022
MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for M. Evan Corcoran. Filing Fee $200.00 Receipt #15943 by Donald J. Trump. Responses due by 9/6/2022 (Attachments: # 1 Text of Proposed Order)(jas) (Entered: 08/24/2022)
Main Doc
Motion to Appear Pro Hac Vice
Att 1
Text of Proposed Order

14
Aug 23, 2022
NOTICE OF CONVENTIONAL FILING of 13 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for M. Evan Corcoran. Filing Fee $200.00 Receipt #15943 by Donald J. Trump. (jas) (Entered: 08/24/2022)
Main Doc
Notice of Conventional Filing

15
Aug 23, 2022
Clerk's Notice of Filing Deficiency Re: 13 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for M. Evan Corcoran. Filing Fee $200.00 Receipt #15943 filed by Donald J. Trump, 11 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for James M. Trusty. Filing Fee $200.00 Receipt #15943 filed by Donald J. Trump. Document(s) were filed conventionally that should have been filed electronically (CM/ECF Administrative Procedures). (jas) (Entered: 08/24/2022)
Main Doc
Clerk's Notice of Filing Deficiency
Aug 23, 2022
Order on Motion to Appear Pro Hac Vice AND Order on Motion to Appear Pro Hac Vice
Aug 23, 2022
- Order (PAPERLESS or pdf attached)

16
Aug 24, 2022
PAPERLESS ORDER granting 11 13 the Motions to Appear Pro Hac Vice, Consents to Designation, and Requests to Electronically Receive Notices of Electronic Filing for Attorneys James M. Trusty and M. Evan Corcoran. The Court reserves the power to withdraw permission for special appearance at any time. Failure to abide by any court order or failure to appear at any scheduled matter may result in immediate revocation of counsels' pro hac vice status. Local counsel must be ready to adequately represent the party at any time. Signed by Judge Aileen M. Cannon on 8/24/2022. (dsy) (Entered: 08/24/2022)
Main Doc
Order on Motion to Appear Pro Hac Vice
Aug 24, 2022
Order on Motion to Appear Pro Hac Vice AND Order on Motion to Appear Pro Hac Vice

***************************

10
Aug 23, 2022
PAPERLESS ORDER: The Court is in receipt of 1 Plaintiff's Motion for Judicial Oversight and Additional Relief. To facilitate appropriate resolution, on or before August 26, 2022, Plaintiff shall file a supplement to the Motion further elaborating on the following: (1) the asserted basis for the exercise of this Court's jurisdiction, whether legal, equitable/anomalous, or both; (2) the framework applicable to the exercise of such jurisdiction; (3) the precise relief sought, including any request for injunctive relief pending resolution of the Motion; (4) the effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart; and (5) the status of Plaintiff's efforts to perfect service on Defendant. Signed by Judge Aileen M. Cannon on 8/23/2022. (AMC) (Entered: 08/23/2022)

Rule 2. One Form of Action
Primary tabs
There is one form of action—the civil action
https://www.law.cornell.edu/rules/frcp/rule_2

Rule 3. Commencing an Action
Primary tabs
A civil action is commenced by filing a complaint with the court.

Notes
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Notes of Advisory Committee on Rules—1937

1. Rule 5(e) defines what constitutes filing with the court.

2. This rule governs the commencement of all actions, including those brought by or against the United States or an officer or agency thereof, regardless of whether service is to be made personally pursuant to Rule 4(d), or otherwise pursuant to Rule 4(e).

3. With this rule compare [former] Equity Rule 12 (Issue of Subpoena—Time for Answer) and the following statutes (and other similar statutes) which provide a similar method for commencing an action:

U.S.C., Title 28:

§45 [former] (District courts; practice and procedure in certain cases under interstate commerce laws).

§762 [see 1402] (Petition in suit against United States).

§766 [see 2409] (Partition suits where United States is tenant in common or joint tenant).

4. This rule provides that the first step in an action is the filing of the complaint. Under Rule 4(a) this is to be followed forthwith by issuance of a summons and its delivery to an officer for service.

Rule 4. Summons
Primary tabs
(a) Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

(2) Amendments. The court may permit a summons to be amended.

(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served.

(c) Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.

[admin]

Memo Details Barr’s Justifications for Clearing Trump of Obstruction: A document released by court order showed how in 2019, Justice Department lawyers argued that President Donald J. Trump had not illegally impeded the Russia investigation.
by Mark Mazzetti, Michael S. Schmidt and Charlie Savage
New York Times
Aug. 24, 2022
Updated 9:13 p.m. ET

Memorandum for the Attorney General, From Steven A. Engel, Assistant Attorney General, Office of Legal counsel and Edward C. O'Callaghan, Principal Associate Deputy Attorney General Re: Review of the Special Counsel's Report, Dated March 24, 2019

WASHINGTON — The Biden administration released a Trump-era memorandum on Wednesday that provided the most detailed look yet at the Justice Department’s legal reasoning for proclaiming that President Donald J. Trump could not be charged with obstruction of justice over his efforts to impede the Russia investigation.

The March 2019 memo, delivered to the attorney general at the time, William P. Barr, concluded that none of Mr. Trump’s actions chronicled in the report by the special counsel, Robert S. Mueller III — from firing his F.B.I. director to pressuring the White House counsel to recant his testimony to prosecutors — could be shown beyond a reasonable doubt to be criminal acts.

Many of these actions, two senior Justice Department officials wrote, should be interpreted by an inference that Mr. Trump “reasonably believed” the investigations were impeding his government agenda, meaning he lacked the corrupt intent necessary to prosecute him for obstruction.

The Justice Department under both the Trump and the Biden administrations fought unsuccessfully in court to avoid releasing the full text of the memo, which was the subject of a Freedom of Information Act lawsuit by the government watchdog group Citizens for Responsibility and Ethics in Washington.

After losing in court on Friday, the Justice Department had the option to appeal the case. But the department’s senior leadership decided to release the document, according to a senior official in federal law enforcement. The leadership never opposed airing its contents, but had contested its release on narrower legal grounds, the person added.

The memo’s release in 2022 — long after the Mueller investigation and its aftermath — is largely significant for historical reasons. While Mr. Barr immediately pronounced Mr. Trump cleared of any obstruction of justice offense, he never discussed in detail his rationale for rejecting many of the episodes in the Mueller report.

The memo to Mr. Barr was signed by Steven A. Engel, the head of the Office of Legal Counsel, and Ed O’Callaghan, the principal associate deputy attorney general who had been the main liaison between the Justice Department and the special counsel’s office.

Outside specialists in white-collar law greeted the disclosure of the memo with some skepticism, describing its tone as essentially that of a defense lawyer in a trial rather than an even-handed weighing of the law and evidence.

“Not impressed,” said Samuel Buell, a Duke University law professor and former federal prosecutor. “It reads more like a defense lawyer’s brief than a full and balanced analysis citing the legal authorities.”

Among the most significant episodes of potential obstruction described in the Mueller report was Mr. Trump’s dangling of a potential pardon before witnesses like Paul Manafort, his former campaign chairman, while encouraging him not to cooperate with investigators. Mr. Manafort was convicted of financial crimes, and Mr. Trump pardoned him late in his administration.

The Trump Investigations
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Numerous inquiries. Since former President Donald J. Trump left office, he has been facing several civil and criminal investigations into his business dealings and political activities. Here is a look at some notable cases:

Classified documents inquiry. The F.B.I. searched Mr. Trump’s Florida home as part of the Justice Department’s investigation into his handling of classified materials. The inquiry is focused on documents that Mr. Trump had brought with him to Mar-a-Lago, his private club and residence, when he left the White House.

Jan. 6 investigations. In a series of public hearings, the House select committee investigating the Jan. 6 attack laid out a comprehensive narrative of Mr. Trump’s efforts to overturn the 2020 election. This evidence could allow federal prosecutors, who are conducting a parallel criminal investigation, to indict Mr. Trump.

Georgia election interference case. Fani T. Willis, the Atlanta-area district attorney, has been leading a wide-ranging criminal investigation into the efforts of Mr. Trump and his allies to overturn his 2020 election loss in Georgia. This case could pose the most immediate legal peril for the former president and his associates.

New York State civil inquiry. Letitia James, the New York attorney general, has been conducting a civil investigation into Mr. Trump and his family business. The case is focused on whether Mr. Trump’s statements about the value of his assets were part of a pattern of fraud or were simply Trumpian showmanship.

Manhattan criminal case. Alvin L. Bragg, the Manhattan district attorney, has been investigating whether Mr. Trump or his family business intentionally submitted false property values to potential lenders. But the inquiry faded from view after signs emerged suggesting that Mr. Trump was unlikely to be indicted.

The memo to Mr. Barr never mentioned the word “pardon,” instead characterizing that and similar episodes as Mr. Trump merely praising or condemning witnesses based on whether they cooperated with investigators. The memo argues that this could be interpreted as Mr. Trump merely not wanting the witnesses to lie and make up false claims against him.

To back up its assessments, the memo repeatedly stresses that Mr. Mueller’s investigation did not find sufficient evidence to charge any Trump campaign associate in a conspiracy with Russia.

“Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the president had committed a crime,” Mr. Engel and Mr. O’Callaghan wrote.

Ryan Goodman, a New York University law professor, called the memo a “get out of jail free” card, adding: “It’s hard to stomach a memo that amounts to saying someone is not guilty of obstruction for deliberately trying to induce witnesses not to cooperate with law enforcement in a major criminal investigation.”

The Biden administration released an unredacted memorandum from March 2019 that described the Justice Department’s legal reasoning for declining to charge President Donald J. Trump in the Russia investigation.

Mr. Barr has denounced the Russia investigation, saying it was cooked up by Mr. Trump’s opponents to upend his presidency and that Mr. Trump was well within his rights to push back against the sprawling inquiry and the negative media attention that came with it.

In his report, Mr. Mueller detailed numerous cases of possible obstruction, but chose not to render a judgment. Under Justice Department policy, he wrote, the department cannot indict a sitting president and therefore it would be unfair to accuse Mr. Trump of breaking the law while he was in office.

The memo shows that senior Justice Department officials seemed to be prepared to knock down arguments that Mr. Trump had obstructed justice. It is dated March 24, only two days after the special counsel’s office delivered a report of more than 400 pages to the attorney general.

“If the president were to perjure himself, tamper with witness testimony or corruptly destroy evidence, then such actions would violate well-established law,” the memo stated. “But we do not believe that any of the actions described in the report would meet such a standard.”

The Mueller report itself raised doubts about whether some of the highest-profile acts that could be considered potential obstruction of justice — like the firing of the F.B.I. director, James B. Comey Jr. — met all the required elements of that crime.

But the report’s analysis put greater emphasis on Mr. Trump’s attempts to have Mr. Mueller fired or the investigation’s scope gutted — which were thwarted when aides refused to carry out his instructions — and then his attempt to get his White House counsel, Donald F. McGahn II, to deny that Mr. Trump had pushed him to oust the special prosecutor.

The memo to Mr. Barr dismissed both aspects. While it acknowledged that an unsuccessful attempt to commit a crime is itself a criminal act, it stressed that Mr. Trump had backed down when his aides refused to carry out his orders. That could make it harder, it said, for prosecutors to prove he had the necessary criminal intent to charge him.

Legal specialists have pointed to Mr. Trump’s attempt to force Mr. McGahn to write a memo denying that Mr. Trump had pushed him to have Mr. Mueller fired as arguably an attempt to falsify written evidence that would undermine Mr. McGahn’s ability to testify as a witness in any later trial. Moreover, while Mr. Trump also wanted Mr. McGahn to issue a public statement, the written denial the president was seeking was not intended for release.

The memo does not address those arguments. Rather, it characterizes Mr. McGahn’s recollection of the president’s directions as ambiguous, apparently because Mr. Trump did not use the word “fire.” (According to Mr. McGahn’s sworn testimony to Congress, Mr. Trump called him at home and said, “Mueller has to go” and “call me back when you do it.”)

Glenn Thrush contributed reporting.

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US. Department of Justice

Washington D.C. 20530

March 24, 2019

MEMORANDUM FOR THE ATTORNEY GENERAL

THROUGH: THE DEPUTY ATTORNEY GENERAL

FROM: Steven A. Engel, Assistant Attorney General, Office of Legal Counsel
Edward C. O'Callaghan, Principal Associate Deputy Attorney General

SUBJECT: Review of the Special Counsel's Report

At your request, we have evaluated Volume II of the Special Counsel's Report on the Investigation into Russian Interference in the 2016 Presidential Election to determine whether the facts recited therein would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution, without regard to any constitutional barrier to such a prosecution under Article I of the U.S. Constitution. Over the course of the Special Counsel's investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report.

For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes.1 [Given the length and detail of the Special Counsel's Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding he Special Counsel's investigation.] In addition, we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.

I. The Department Should Reach a Conclusion on Whether Prosecution Is Warranted Based on the Findings in Volume I of the Special Counsel Report

The Special Counsel has investigated certain facts relating to the President's response to the FBI's Russia investigation and to the subsequent Special Counsel investigation. In so doing, the Special Counsel reached no conclusion as to whether the President had violated any criminal law or whether, if so, such conduct warranted prosecution. The Special Counsel considered evaluating such conduct under the Justice Manual standards governing prosecutions and declinations, but determined not to apply that approach for several reasons. The Special Counsel recognized that the Office of Legal Counsel (“OLC”) had determined that “a sitting President is constitutionally immune from indictment and criminal prosecution.” A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op O.L.C. 222, 260 (2000). Although the OLC opinion permitted the investigation of a siting President, the Special Counsel concluded that it would be unfair to reach any charging decision, because the President would not then be afforded any opportunity to clear his name before an impartial adjudicator. Accordingly, the Report identifies evidence on both sides of the obstruction question and leaves unresolved what it viewed as “difficult issues” concerning whether the President's actions and intent could be viewed as obstruction of justice.

Although the Special Counsel has declined to reach a conclusion, we think that the Department should reach a judgment on this matter. Under traditional principles of prosecution, the Department either brings charges or it does not. Because the Department brings charges against an individual only where the admissible evidence would support the proof of such charges beyond a reasonable doubt, any uncertainty concerning the facts or the law underlying a proposed prosecution ultimately must be resolved in favor of that individual. That principle does not change simply because the subject of the investigation is the President. Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report's failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public. Therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel's Report, the underlying law, and traditional principles of federal prosecution.

II. Prosecution Would Not Be Warranted Based on the Findings in Volume II of the Special Counsel's Report

A fair evaluation of the Special Counsel's findings and legal theories weighs in favor of declining prosecution. While cataloguing actions that the President took, many of which took place in public view, the Report identifies no actions that, in our judgment, constituted obstructive acts, done with a nexus to a pending proceeding, with the corrupt intent necessary to warrant prosecution under the obstruction-of-justice statutes. Based on the evidence described and the legal theories articulated in Volume II of the Special Counsel's Report regarding “whether the President had obstructed justice in connection with Russia-related investigations,” we believe that prosecution would not be warranted in these circumstances, wholly apart from constitutional considerations.

A. Principles of Federal Prosecution

The applicable Principles of Federal Prosecution articulated in the Justice Manual state that “a determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances — recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families, whether or not a conviction ultimately results.” Justice Manual § 9-27.001. This statement of principles advances "two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.” Id.

These principles must be applied by the Department to all prosecution decisions, no matter the status of the subjects or targets of the investigation. The Justice Manual instructs that, as a threshold matter, a prosecutor should only “commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual § 9-27.20 (emphasis added). The Comment to this section further clarifies, “both as a matter of fundamental fairness and in the interest of the efficient administration of Justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” id. If these threshold factors are satisfied, the prosecutor then should weigh other relevant considerations in deciding whether to commence or recommend a prosecution. See id. §§ 9-27.220 to 9-27.250.

Applying these principles, if the person's conduct under scrutiny is not a federal offense or the admissible evidence is not sufficient to obtain and sustain a guilty verdict, then the prosecution should be declined.

B. There Is No Precedent for an Obstruction Case on Similar Facts

To our knowledge, the Special Counsel's investigation of potential obstruction is not similar to any reported case that the Department has previously charged under the obstruction-of-justice statutes. The Report identifies no obstruction case that the Department has pursued under remotely similar circumstances, and we have not identified any either. Of course, any investigation concerning the President would be exceptional, but the President is hardly the only public official who could be subject to investigation. The Department has investigated the potential misuse of official authority, including the obstruction of official proceedings, in a host of different circumstances.

The Special Counsel's obstruction theory would not only be novel, but, based on his own analysis, it would also be unusual because Volume I of the Special Counsel's Report is conclusive: that the evidence developed “was not sufficient to charge that any member of the Trump Campaign [including the President] conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.” Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving the President toward which any obstruction or attempted obstruction by the President was directed. It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime. Moreover, much of the President's potentially obstructive conduct amounted to attempts to modify the process under which the Special Counsel investigation progressed, rather than efforts to impair or intentionally alter evidence (documentary or testimonial) that would negatively impact the Special Counsel's ability to obtain and develop evidence.

The Special Counsel's Report cites over a dozen federal obstruction decisions in the Report, yet in nearly every one, the charged conduct involved (i) inherently wrongful acts to destroy evidence, to create false evidence, or to tamper with witnesses or jurors, and (ii) an effort to prevent the investigation or punishment of a separate, underlying crime. We have identified only two cases that lack one of those elements. The first is Arthur Anderson LLP v. United States, 544 U.S. 696, 707-08 (2005), which concerned the destruction of evidence in advance of an expected SEC investigation. Although there was no evidence in that case of an underlying crime, the exception essentially proves the rule, because the Supreme Court vacated the conviction precisely because the prosecution could have covered innocuous conduct. When it comes to actions otherwise lawful in themselves, the Court emphasized the need to “exercise restraint in assessing the reach of a federal criminal statute,” because of the need to provide “fair warning.” Id. at 696, 703-04. The Court emphasized that such restraint is particularly appropriate where the “act underlying the conviction .... is by itself innocuous,” is not “inherently malign” and could be performed for appropriate, non-criminal reasons. Id. In construing the obstruction statute, the Supreme Court observed that “corrupt” and “corruptly” “are normally associated with wrongful, immoral, depraved, or evil” conduct, and the Court vacated the conviction because the jury instruction did not meet that demanding standard. Id. at 705.

The Report also cites United States v. Cueto, 151 F.34 620, 631 (7th Cir. 1998), which was a case that clearly involved an effort to protect an underlying crime—namely an illegal gambling operation—but that also involved actions that would have been lawful if undertaken for a non-corrupt purpose. The Seventh Circuit there affirmed the conviction of one of the owners of the gambling operation, because he had repeatedly abused state court processes in order to take discovery from grand jury witnesses in an effort to impede the federal investigation. Although the obstruction charge involved otherwise lawful conduct, we cannot describe it as in any way resembling the facts described in the Special Counsel's Report.2 [The Special Counsel also cites United States v. Cintolo, 818 F.24 980,992 (1st Cir. 1987), which recognized that “any act by any party—whether lawful or unlawful on its face -- may abridge § 1503,” but that case involved both an inherently wrongful act (tampering with a grand jury witness) and separate, underlying crimes (an illegal gambling and loan-sharking operation).]

In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel's Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018). Indeed, in seeking to identify cases in which the misuse of otherwise lawful authority established an obstruction case, the memorandum cited three charging documents, two of which arose from state court and thus did not involve federal criminal violations. See id. All three cases involved an effort to use official authority to prevent the prosecution or punishment of a distinct crime. The one federal case did not involve just the abuse of official authority, but rather witness tampering and manufacturing false evidence, concerns that go to the heart of the obstruction statutes. Accordingly, there simply does not appear to be any clear legal precedent similar to the kinds of conduct evaluated here.

C. The Report Does Not Identify Any Actions Rising To Obstruction of Justice

We have carefully reviewed Volume II of the Report and concluded that it does not identify sufficient evidence to prove any criminal offense beyond a reasonable doubt. Although Volume I makes no conclusions about the President's conduct, it adopts an expansive reading of 28 U.S.C. § 1512(c)(2) as prohibiting any act, including an otherwise lawful act, that impedes an official proceeding, so long as the act is done with a corrupt intent. According to the Special Counsel, there is no requirement that the act be inherently malign or impair the availability of witnesses or evidence. At the same time, the Report advances several definitions of “corruptly,” including one that would establish intent by proof of an “improper purpose.” The Report thus suggests that the President's exercise of executive discretion for any improper reason, including the prevention of personal embarrassment, could constitute obstruction of justice if it impeded a pending investigation. As we have discussed with you, we do not subscribe to such a reading of the obstruction-of-justice statutes. No reported case comes close to upholding a conviction of such breadth, and a line of Supreme Court precedent, including Arthur Anderson, weighs heavily in favor of objectivity and certainty in the federal criminal law. In order to reach the conclusions in this memorandum, however, we do not believe it necessary to address this disagreement further, because in our view, Volume II of the Report does not establish offenses that would warrant prosecution, even under such a broad legal framework.

The Report evaluates ten episodes involving the President's conduct. For many of those episodes, the Special Counsel advises that there is significant evidence to indicate that the President's actions would not meet one or more of the elements of the obstruction-of-justice statutes. For others, the Special Counsel's evaluation of the evidence is more equivocal, and he identifies evidence on both sides of the question. Having reviewed the Report in light of the governing legal principles, and the Principles of Federal Prosecution, we conclude that none of these instances would warrant a prosecution for obstruction of justice, without regard to the constitutional constraint on bringing such an action against a sitting President. Having discussed each of these episodes with you on multiple occasions, this memorandum summarizes the reasons for our conclusions, without analyzing each and every item described in the Report.

1. The President's Response to the FBI's Russia Investigation

The Special Counsel's Report divides the President's alleged obstructive conduct into two broad categories, one before he fired the former FBI Director, James Comey, when the President had been told that he was not personally under investigation; and the other after that firing, when the President learned that he was then under scrutiny for potential obstruction. The former category includes the President's private meetings with Comey concerning his “loyalty” and the investigation of Michael Flynn; the President's efforts to convince his senior national security officials to confirm publicly that he was not under investigation; and the events surrounding Comey’s termination.

We do not believe that any of these events establishes obstruction of justice. As the Report indicates, during this period, the President was repeatedly informed by Comey that he was not personally under investigation. There is no clear evidence that the President knew of Flynn's conversation with Kislyak or that he had misrepresented it to the Vice President, prior to McGahn informing him of those facts. At the same time, the President repeatedly demonstrated his belief that the Russia investigation had cast a cloud on his nascent Administration and that it was being exploited, if not outright conducted, by his political opponents to frustrate his efforts to implement his agenda. As the Report indicates, many of the President's actions in these matters can readily be explained by his desire to have the FBI Director or others in the Administration inform the public that he was not under investigation. Indeed, the Report identifies substantial evidence that the FBI Director's refusal to make such a public statement was the driving force in the President terminating him.

We also do not believe that the President’ actions regarding Michael Flynn present any case of obstruction of justice. The Special Counsel did not uncover any evidence that the President had any personal culpability in the Flynn investigation or that his actions were motivated by improper considerations. The President's expression of “hope” that Comey would “let this go” did not clearly direct a particular action in the Flynn investigation, and Comey did not react at the time as though he had received a direct order from the President. By the same token, as the Special Counsel acknowledges, the President's decision to remove the FBI Director did not constitute obstruction either. In our view, none of these actions constitutes a case of obstruction of justice, either as a matter of law or fact.

2. The Presidents Actions Concerning the Management of the Special Counsel's Investigation

The Report also discusses a second category of actions taken by the President after the appointment of the Special Counsel, most notably after he learned that the Special Counsel had opened an investigation into potential obstruction of justice. Most of the conduct identified consists of facially lawful actions that are part of the President's constitutional responsibility to supervise the Executive Branch. The Special Counsel considers, for example, whether the President obstructed justice by asking the White House Counsel to direct the firing of the Special Counsel; by asking Corey Lewandowski to contact the Attorney General and seek his assistance in narrowing the Special Counsel's investigation; and by asking the Attorney General to reverse his recusal and to supervise the Special Counsel's investigation.

We do not believe that the principles of federal prosecution support charges based upon any of those actions. As noted, the evidence does not establish that the President took any of these actions because he sought to prevent the investigation of an underlying criminal offense, separate and apart from the obstruction case, and the Department rarely brings obstruction cases absent a separate criminal offense. Such a prosecution is doubly inappropriate where, as here, the conduct under investigation is lawful on its face, and the evidence of any corrupt motive is, at the very least, questionable. Federal criminal statutes should be construed to avoid criminalizing generally innocent conduct. See, e.g., Arthur Anderson, 544 U.S. at 703-04; Ratzlaf v. United States, 510 USS. 135, 144 (1994). The standard for demonstrating that a public official acted with corrupt intent is demanding. And there is considerable evidence to suggest that the President took these official actions not for an illegal purpose, but rather because he believed the investigation was politically motivated and undermined his Administration's efforts to govern.

Moreover, in evaluating the nature of the President's conduct, it bears emphasis that none of his requests to change the supervision of the investigation were actually carried out. The conduct under investigation is based entirely upon “directions” by the President to subordinates to take actions on his behalf that they did not undertake. In each instance, if the President truly wanted to cause those actions, he could have done it himself (for instance, ordering the Deputy Attorney General to terminate the Special Counsel or directing the Attorney General to unrecuse or to resign). After the President provided his direction, in each instance, the orders were not carried out. Of course, it is true that an act may constitute an attempt or an endeavor, even if unsuccessful. But the facts that the President could have given these directions himself, and did not remove any subordinate for failing to convey his directions, weigh against finding an intent to obstruct justice.

3. Conduct Related To Witnesses

The Special Counsel's Report also describes a variety of other actions taken by the President that could have had some effect on potential witnesses to the investigation. Those actions include the President's public and private comments concerning the recollections and testimony of potential witnesses, including the President's effort to encourage the White House Counsel, Don McGahn, to deny the newspaper reports that the President had directed McGahn to fire the Special Counsel; his involvement in responding to media interest in the Trump Tower meeting; and his public and private statements concerning witnesses, whom he appeared to praise or condemn based upon whether they were fighting the charges against them or cooperating with the investigation.

The President's actions on these matters more directly implicate the concerns of the obstruction statute. If the President were to perjure himself, tamper with witness testimony, or corruptly destroy evidence, then such actions would violate well-established law. But we do not believe that any of the actions described in the report would meet such a standard. None of these instances indicate that the President sought to conceal evidence of criminal conduct nor is there sufficient evidence to prove beyond a reasonable doubt that he sought to provide false evidence to the investigators.

For instance, when it comes to the President's request that McGahn deny the newspaper accounts, the Special Counsel recognizes that there is evidence suggesting that the President believed the newspaper stories to be false. The President repeatedly protested both to McGahn and to other witnesses that he believed that he had asked McGahn to advise the Deputy Attorney General about the Special Counsel's conflicts of interests and thereby induce the appointment of an unconflicted special counsel. The President vehemently denied telling McGahn that he wanted to “fire” the Special Counsel, and McGahn recalled the President's direction to be more ambiguous. While other evidence cuts against this understanding, there is insufficient evidence to conclude beyond a reasonable doubt that the President sought to induce McGahn to lie. In addition, at the time of this discussion, McGahn had already provided his recollection to investigators, and the President's principal focus was on rebutting those media reports. Given the timing of this conversation, there is insufficient evidence to conclude that the President's actions toward McGahn, which were themselves ambiguous, were intended to affect the investigation itself. Therefore, the evidence, in our judgment, does not suffice to warrant any criminal prosecution.

We likewise do not believe that the President's public statements exhorting witnesses like Flynn, Manafort, Stone, or Cohen, not to “flip” should be viewed as obstruction of justice. The Report makes clear that the President equated a witness's decision to “flip” with being induced by prosecutors to manufacture false evidence against others. We cannot say that the evidence would prove beyond a reasonable doubt that the President's statements, most of which were made publicly, were intended to induce any of those witnesses to conceal truthful evidence or to provide false evidence. Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the President had committed a crime. The President's public statements could be viewed as efforts to defend himself from public criticism related to the Special Counsel’s investigation or to discourage the witnesses from making what the President believed might be false statements in exchange for a lesser sentence. Those statements do not warrant a prosecution for obstruction of justice.

D. Other Considerations

Although we have not identified any actions that present clear violations of the obstruction of justice statutes, there are other factors that would weigh against pursuing the President's actions as criminal violations. The Special Counsel's thorough investigation did not establish that the President committed any underlying crime related to Russian interference. As noted, in every successful obstruction case cited in the Report, the corrupt acts were undertaken to prevent the investigation and prosecution of a separate crime. The existence of such an offense is not a necessary element to proving an obstruction charge, but the absence of underlying guilt is relevant and powerful evidence in assessing whether otherwise innocent actions were undertaken with a corrupt motive. In the absence of an underlying offense, the most compelling inference in evaluating the President's conduct is that he reasonably believed that the Special Counsel's investigation was interfering with his governing agenda. Even if the President were objectively wrong about the intentions of the Special Counsel, many, if not all, of his actions could be viewed as lacking the intent element under the relevant statutes.

In addition, while our analysis would counsel against pursuing an obstruction charge against an ordinary party in the absence of any effort to impair evidence, there are additional prudential reasons that weigh against such an interpretation in these circumstances. Such a criminal prosecution would involve the application of a novel obstruction theory that arguably would apply to any official with the authority to take acts that could influence an investigation. Such an extension would involve serious questions of public policy and constitutional law that would weigh against pursuing criminal charges except under the clearest of cases.

RECOMMENDATION: We recommend that you conclude that, under the Principles of Federal Prosecution, the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

APPROVE: WP BARR 3/24/2019

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FBI: Trump mixed top secret docs with magazines, other items: The affidavit does not provide new details about 11 sets of classified records recovered during an Aug. 8 search at Mar-a-Lago but instead concerns a separate batch of 15 boxes the National Archives and Records Administration retrieved in January.
by Eric Tucker and Michael Balsamo
Associated Press
AUGUST 26, 2022 — 6:55PM

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WASHINGTON — Fourteen of the 15 boxes recovered from former President Donald Trump's Florida estate early this year contained classified documents, many of them top secret, mixed in with miscellaneous newspapers, magazines and personal correspondence, according to an FBI affidavit released Friday.

No space at Trump's Mar-a-Lago estate was authorized for the storage of classified material, according to the court papers, which laid out the FBI's rationale for searching the property this month, including "probable cause to believe that evidence of obstruction will be found."

The 32-page affidavit — heavily redacted to protect the safety of witnesses and law enforcement officials and "the integrity of the ongoing investigation" — offers the most detailed description to date of the government records being stored at Mar-a-Lago long after Trump left the White House. It also reveals the gravity of the government's concerns that the documents were there illegally.

The document makes clear how the haphazard retention of top secret government records, and the apparent failure to safeguard them despite months of entreaties from U.S. officials, has exposed Trump to fresh legal peril just as he lays the groundwork for another potential presidential run in 2024.

"The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records," an FBI agent wrote on the first page of the affidavit.

Documents previously made public show that federal agents are investigating potential violations of multiple federal laws, including one that governs gathering, transmitting or losing defense information under the Espionage Act. The other statutes address the concealment, mutilation or removal of records and the destruction, alteration or falsification of records in federal investigations.

Trump has long insisted, despite clear evidence to the contrary, that he fully cooperated with government officials. And he has rallied Republicans behind him by painting the search as a politically motivated witch hunt intended to damage his reelection prospects. He repeated that refrain on his social media site Friday, saying he and his representatives had had a close working relationship with the FBI and "GAVE THEM MUCH."

The affidavit does not provide new details about 11 sets of classified records recovered during the Aug. 8 search at Mar-a-Lago but instead concerns a separate batch of 15 boxes that the National Archives and Records Administration retrieved from the home in January. The Archives sent the matter to the Justice Department, indicating in its referral that a review showed "a lot" of classified materials, the affidavit says.

The affidavit made the case to a judge that a search of Mar-a-Lago was necessary due to the highly sensitive material found in those 15 boxes. Of 184 documents with classification markings, 25 were at the top secret level, the affidavit says. Some had special markings suggesting they included information from highly sensitive human sources or the collection of electronic "signals" authorized by a special intelligence court.

And some of those classified records were mixed with other documents, including newspapers, magazines and miscellaneous print-outs, the affidavit says, citing a letter from the Archives.

Douglas London, a former senior CIA officer and author of "The Recruiter," said this showed Trump's lack of respect for controls. "One of the rules of classified is you don't mix classified and unclassified so there's no mistakes or accidents," he said.

The affidavit shows how agents were authorized to search a large swath of Mar-a-Lago, including Trump's official post-presidential "45 Office," storage rooms and all other areas in which boxes or documents could be stored. They did not propose searching areas of the property used or rented by Mar-a-Lago members, such as private guest suites.

The FBI submitted the affidavit, or sworn statement, to a judge so it could obtain the warrant to search Trump's property. Affidavits typically contain vital information about an investigation, with agents spelling out the justification for why they want to search a particular location and why they believe they're likely to find evidence of a potential crime there.

The documents routinely remain sealed during pending investigations. But in an acknowledgment of the extraordinary public interest in the investigation, U.S. Magistrate Judge Bruce Reinhart on Thursday ordered the department by Friday to make public a redacted version of the affidavit.

In a separate document unsealed Friday, Justice Department officials said it was necessary to redact some information to "protect the safety and privacy of a significant number of civilian witnesses, in addition to law enforcement personnel, as well as to protect the integrity of the ongoing investigation."

The second half of the affidavit is almost entirely redacted, making it impossible to discern the scope of the investigation or where it might be headed. It does not reveal which individuals might be under investigation and it does not resolve core questions, such as why top secret documents were taken to Mar-a-Lago after the president's term despite even though classified information requires special storage.

Trump's Republican allies in Congress were largely silent Friday as the affidavit emerged, another sign of the GOP's reluctance to publicly part ways with the former president, whose grip on the party remains strong during the midterm election season. Both parties have demanded more information about the search, with lawmakers seeking briefings from the Justice Department and FBI once Congress returns from summer recess.

Though Trump's spokesman derided the investigation as "all politics," the affidavit makes clear the FBI search was hardly the first time federal law enforcement had expressed concerns about the records. The Justice Department's top counterintelligence official, for instance, visited Mar-a-Lago last spring to assess how the documents were being stored.

The affidavit includes excerpts from a June 8 letter in which a Justice Department official reminded a Trump lawyer that Mar-a-Lago did not include a secure location authorized to hold classified records. The official requested that the room at the estate where the documents had been stored be secured, and that the boxes that were moved from the White House to Mar-a-Lago "be preserved in that room in their current condition until further notice."

The back-and-forth culminated in the Aug. 8 search in which agents retrieved 11 sets of classified records.

The document unsealed Friday also offer insight into arguments the Trump legal team is expected to make. It includes a letter from Trump lawyer M. Evan Corcoran in which he asserts that a president has "absolute authority" to declassify documents and that "presidential actions involving classified documents are not subject to criminal sanction."

Mark Zaid, a longtime national security lawyer who has criticized Trump for his handling of classified information, said the letter was "blatantly wrong" to assert Trump could declassify "anything and everything."

"There are some legal, technical defenses as to certain provisions of the espionage act whether it would apply to the president," Zaid said. "But some of those provisions make no distinction that would raise a defense."

In addition, the affidavit includes a footnote from the FBI agent who wrote it observing that one of the laws that may have been violated doesn't even use the term "classified information" but instead criminalizes the unlawful retention of national defense information.

____

Associated Press writers Jill Colvin in New York and Nomaan Merchant, Michael Balsamo and Lisa Mascaro in Washington contributed to this report.

Follow Eric Tucker on Twitter at http://www.twitter.com/etuckerAP

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Redacted affidavit says documents at Mar-a-Lago could compromise human intelligence sources
by Glenn Thrush, Alan Feuer and Maggie Haberman
New York Times
Aug 26, 2022

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WASHINGTON — The Justice Department asked to search former President Donald Trump’s Florida residence after retrieving an initial batch of highly classified national security documents, out of concern that their disclosure could compromise “clandestine human sources” used in intelligence gathering, according to a redacted version of the affidavit used to obtain the warrant.

The affidavit — including more than three dozen pages of evidence and legal arguments presented by the Justice Department’s national security division plus supporting documents — describes the government’s monthslong push to recover highly classified materials taken from the White House by a former president who viewed state documents as his private property.

The heavily redacted affidavit was released Friday, 18 days after FBI agents descended on Trump’s Mar-a-Lago residence and private club with a court-authorized search warrant and carted off additional material marked as classified.

Under orders from the judge in the case, Bruce E. Reinhart, the Justice Department had proposed extensive redactions to the affidavit in an effort to shield witnesses from intimidation or retribution. The government did so to protect the broader integrity of its inquiry into whether Trump had violated the Espionage Act and other laws by willfully retaining national security records that he was required to turn over to the National Archives.

The search, the affidavit reveals, was prompted by an intensive FBI review of an initial 15 boxes of materials Trump turned over to the archives in January, after months of government pressure.

In those boxes, they found a total of 184 documents with classification markings, including 25 marked “top secret.”

But agents were most alarmed to discover that many of the materials included the highest national security restrictions, requiring they be held in controlled government storage facilities, and barring them from ever being shared with foreign governments, to protect “clandestine human sources” employed by the intelligence community to collect information around the world, according to the documents.

The affidavit does not disclose the nature of the material or why Trump chose to retain it.

Those concerns, and the continued unwillingness of Trump to return sensitive documents that the archives knew remained in his possession, prompted the department’s leaders to move quickly, according to officials.

The redactions, which blanket about half of the affidavit, covered many of the most sensitive details of the Justice Department’s investigation; whole swaths of the filing are blacked out, included most of pages 11 through 16. As a result, there are limited references to the witnesses or investigative methods that led to the findings laid out by lawyers with the department’s national security division, who persuaded Attorney General Merrick Garland to sign off on the highly unusual request for a search.

On Friday morning, before the documents were released, Trump attacked the department on Truth Social, the social media platform he uses to communicate since being banned from Twitter after the Capitol attack on Jan. 6, 2021. He called the Justice Department and the FBI “political Hacks and Thugs” who “had no right under the Presidential Records Act to storm Mar-a-Lago and steal everything in sight, including Passports and privileged documents.”

The fact that any of the affidavit was made public is a remarkable turn of events. Such documents are almost always left entirely sealed until criminal charges are filed, and even then they tend to emerge only as important legal issues in a case are litigated. There is no indication the Justice Department plans to file charges in the documents case anytime soon.

The partial release came after several news organizations, including The New York Times, filed a motion this month asking Reinhart to unseal the entire document, citing enormous public interest in the search of Mar-a-Lago.

The Justice Department responded by saying the affidavit, if unsealed, would provide a road map to its investigation and wanted Reinhart to keep it fully under wraps. Trump’s attorneys did not object, to the astonishment of Garland’s team, who believe the disclosures portray the former president’s actions in a deeply unflattering light.

At a hearing last week, Reinhart, apparently seeking a middle ground, floated the idea of releasing portions of the affidavit. He ordered the government to send proposed redactions to him by noon Thursday and issued his decision to release the redacted version within hours.

Justice Department officials had suggested they would push hard to scrub anything that could expose witnesses in the case. After the search at Mar-a-Lago, the FBI reported a surge in threats against its agents; an armed man tried to breach the FBI's Cincinnati field office before being killed in a shootout with local police.

The Trump team has sought to portray the search as unjust and unnecessary, claiming there were continuing talks between Trump’s side and the Justice Department that led to the first tranche of boxes of documents being returned to the archives in January.

But when archives officials retrieved the 15 boxes of material in January, they opened them to find mountains of paper, more than 700 pages of classified documents because some individual documents contained multiple pages, some the most sensitive and restricted that exist in government, known as Special Access Programs.

The archives alerted the Justice Department soon after with a referral, and a grand jury was convened.

The released affidavit does not reveal the amount of classified material turned over to federal officials during a June 3 meeting between Justice Department officials and Trump’s attorneys, which came after the grand jury had been formed.

Trump repeatedly resisted entreaties from several advisers to turn over the material, as early as last summer, according to multiple people briefed on the matter. “They’re mine,” he said of the boxes, according to three people familiar with what took place.

Trump went through at least some of the boxes in late 2021, although it is unclear if he went through them all.

His lead attorneys in the case met on June 3 with Jay Bratt, the chief of the counterespionage section of the national security division at the Justice Department. Shortly before that meeting, Evan Corcoran, one of Trump’s attorneys, went to the basement to search through the boxes for classified material, according to two people briefed on the matter.

The Justice Department also gathered information from at least one witness suggesting that there might be more presidential material at Mar-a-Lago. On June 22, the department subpoenaed surveillance footage from various places in the club, including the hallway outside a basement storage area where Corcoran and Christina Bobb, another of Trump’s attorneys, had led Bratt nearly three weeks earlier to show him where documents had been kept.

The video showed boxes being moved out of the storage room sometime around the contact from the Justice Department, people familiar with the tapes said. And it also showed boxes being slipped into different containers, which alarmed investigators.

On Aug. 8, investigators found additional material, presidential records and classified documents in the basement area, as well as in a container on the floor of Trump’s closet in his office, a former dressing room in the bridal suite above the club’s ballroom.

The closet had a hotel-style safe, but it did not contain the materials investigators sought, and was too small to hold the documents he had, according to several people familiar with the events.

This article originally appeared in The New York Times.

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Weeks before Mar-a-Lago search, ex-Trump DOD official vowed to publish classified documents from National Archives: Kash Patel said he planned to post documents from the National Archives online.
by Will Steakin, Alexander Mallin, and Katherine Faulders
August 17, 2022, 3:49 PM

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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[ALI VELSHI] DAMAGE ASSESSMENT. ARE WE TALKING ABOUT DONALD TRUMP AND THE DAMAGE HE'S DONE TO THE INSTITUTION BY TAKING THINGS LIKE THIS? OR ARE WE TALKING ABOUT WHAT MARK ZAID AND I WERE JUST TALKING ABOUT, THAT THERE ARE PEOPLE WHOSE LIVES MIGHT BE IN DANGER TONIGHT, BECAUSE INFORMATION THAT SHOULD HAVE NEVER BEEN ANYWHERE CLOSE TO THE PUBLIC WAS SITTING AROUND MAR-A-LAGO FOR 18 MONTHS, APPARENTLY?

[REP. ERIC SWALWELL] REAL LIVES ARE AT RISK. I'M TALKING U.S. TROOPS, MOST IMPORTANTLY, BECAUSE IN THE AFFIDAVIT, THEY REFERRED TO NATIONAL DEFENSE INFORMATION. THAT MEANS U.S. TROOPS, THEIR MOVEMENTS, THEIR LOCATIONS, AND THAT HAS BEEN JEOPARDIZED BY DONALD TRUMP. IT ALSO MEANS, AS WAS REFERENCED IN SOURCES, PEOPLE WHO HELPED THE U.S. GOVERNMENT OBTAIN OR ACHIEVE OUR NATIONAL SECURITY OBJECTIVES. AND JUST TONIGHT, THE NEW YORK TIMES IS OUT WITH A NEW PIECE ABOUT A CIA MEMO, REGARDING THE LOSS OF HUMAN SOURCES. I CAN'T COMMENT, YOU KNOW, ON THAT MEMO. BUT THE STORY, AT LEAST, HIGHLIGHTS THE CONCERN THAT IF DONALD TRUMP HAS THIS INFORMATION ABOUT U.S. SOURCES IT JEOPARDIZES THEIR LIVES. SO, THESE ARE REAL LIVES THAT ARE AT RISK. AND AGAIN, ALI, WHAT IS SO INTERESTING HERE, OR SO TELLING, DONALD TRUMP, FOUR YEARS AS PRESIDENT, WAS THE FIRST PRESIDENT IN MODERN HISTORY WHO CHOSE NOT TO RECEIVE AN INTELLIGENCE BRIEFING, WHEN EVERY OTHER PRESIDENT, AND JOE BIDEN DID, AND DOES RECEIVE INTELLIGENCE BRIEFINGS. SO, WHY WOULD HE TAKE THAT INFORMATION NOW? WE CAN ONLY CONCLUDE THE WORST, BECAUSE HE HAS ACTED THE WORST IN THE PAST. HE LEVERAGED U.S. MILITARY AID TO UKRAINE, TO GET DIRT ON JOE BIDEN. SO, YOU HAVE TO ASSUME HE ONLY WANTED THAT INFORMATION TO HELP HIMSELF, IF HE EVER NEEDED.

-- Trump Wanted Classified Info ‘To Help Himself,’ Says Rep. Swalwell, by Ali Velshi

donald trump jr suggested on monday that the united states would be safer if his father, former president donald trump, had stashed the nuclear codes at his mar-a-lago golf resort in palm beach florida. the eldest trump son shared his opinion, which resembled a stand-up comedy routine, at an event in support of florida republican congressman matt gaetzs's re-election campaign. let's take a look at don jr's remarks.

[Don Trump, Jr.] donald trump has the nuclear codes! [Applause] in the linen closet at mar-a-lago! i'm like, "really?" by the way, for the record i'd say that if donald trump actually still had the nuclear codes, it'd probably be good. enemies -- our enemies -- might actually be like, "okay, maybe let's not mess with them," unlike when they look at joe biden and they say, "you know what? we should attack now.

-- Donald Trump Jr says 'it would probably be good' if 'nuclear codes' were stashed at Mar a Lago

In June of this year, seven weeks before the FBI raided former President Donald Trump's Mar-a-Lago estate in search of classified materials, former Defense Department appointee and outspoken Trump loyalist Kash Patel vowed to retrieve classified documents from the National Archives and publish them on his website.

Trump had just issued a letter instructing the National Archives to grant Patel and conservative journalist John Solomon access to nonpublic administration records, according to reporting at the time.

Patel, who under Trump had been the chief of staff for the acting defense secretary, claimed in a string of interviews that Trump had declassified a trove of "Russiagate documents" in the final days of his administration. But Patel claimed Trump's White House counsel had blocked the release of those documents, and instead had them delivered to the National Archives.

"I've never told anyone this because it just happened," Patel said in an interview on a pro-Trump podcast on June 22. "I'm going to identify every single document that they blocked from being declassified at the National Archives, and we're going to start putting that information out next week."

Patel did not provide a clear explanation of how he would legally or practically obtain the documents.

"White House counsel and company disobeyed a presidential order and implemented federal governmental bureaucracy on the way out to basically send the stash to the National Archives, and now that's where it's at," Patel said in a subsequent interview on June 23 on a different pro-Trump internet show.

Trump and his allies have for years pushed aggressively to declassify materials related to the FBI's "Crossfire Hurricane" investigation that examined alleged ties between Trump's 2016 presidential campaign and Russia -- a probe that was later put under the control of Robert Mueller following his appointment as special counsel. Patel, who previously served under then-Rep. Devin Nunes (R-Calif.) during Nunes' time as chairman of the House Intelligence Committee, has claimed that nonpublic information provided to Congress undercut the Russia probe and helped support Trump's claim that the investigation lacked merit.

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Kash Patel participates in panel at CPAC Texas 2022 conference in Dallas, Aug. 5, 2022. Lev Radin/Sipa USA via AP

The day before he left office, Trump authorized the declassification of a set of documents related to the Russia probe. The memorandum, released in January 2021, acknowledged that "portions of the documents in the binder have remained classified and have not been released to the Congress or the public."

So according to Patel, Trump asked him to work on retrieving the classified documents from the National Archives and then release them to the public. "President Trump was like, 'Who knows those documents better than anyone?' And I was like, 'If you want me to go, I'll go,'" Patel said.

"I know what's there" in the Archives, said Patel. "I can't still talk about them, but the whole process is going to be: Identify the documents, whether it's Russiagate, Hunter Biden, impeachment, Jan 6th -- and put them out."

Erica Knight, a spokesperson for Patel, told ABC News that Patel was acting as "a representative on behalf of President Trump to work with the National Archives to get them to disclose information."

"The GSA has their own policies and procedures for how presidential records must be handled, which Patel is in full cooperation with," Knight said of the federal government's General Services Administration.

Patel's comments claiming that Trump had directed him to retrieve classified documents came in the middle of the former president's growing dispute with National Archives officials. By June, the National Archives had asked the Justice Department to investigate the former president's handling of White House records, after National Archives officials had in January retrieved 15 boxes of records that had been improperly taken to Trump's home in violation of the Presidential Records Act.

And while Patel has said the former president said to declassify "a mountain of documents," experts say there are protocols in place to ensure that national security is not harmed when information is declassified -- even by the president.

"[Patel] is lashing out at the bureaucracy, but it's that bureaucracy and those protocols that are in place to prevent damage to our national security by an inappropriate disclosure of national security information," said John Cohen, a former Department of Homeland Security official who is now an ABC News contributor.

"I can't stress how important those protocols are," Cohen said. "For everyone who has a clearance, it is ingrained in your brain that even an inadvertent disclosure of top secret information could cause great harm to national security."

According to Patel, the plan in June was to retrieve the documents from the National Archives and publish them on his website "for free," then "make a big announcement every time" a new document was published.

[x]
Former President Donald Trump's Mar-a-Lago estate stands in Palm Beach, Fla., Aug. 10, 2022. Steve Helber/AP

Patel, a former GOP congressional aide who worked on Trump's National Security Council before joining the Pentagon, was also involved in security preparations for the Jan. 6 counting of the electoral vote on Capitol Hill, according to the House committee investigating the Jan. 6 attack, citing records obtained from the Defense Department.

Last September, the Jan. 6 committee issued subpoenas to four former senior Trump administration officials, including Patel, who appeared before the committee for several hours in December.

This past April, Patel was brought on as a member of the board of directors for the former president's media company, Trump Media & Technology Group, which launched the "Truth Social" platform in February. Patel also published a pro-Trump children's book titled "The Plot Against the King."

As of last month, Patel was still pursuing his plan to publish documents currently in the National Archives.

"Now we're in this fight," Petal told conservative commentator Benny Johnson in a July 4 interview. "I'm working on it. And of course, the bureaucracy is getting in the way, but that's not going to stop us."

"I will be going to the National Archives in the coming weeks, I will be identifying those documents," he said.

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Laurence Tribe Twitter Thread
8/30/22
https://twitter.com/tribelaw/status/156 ... gr%5Etweet

Tweet
Conversation
Laurence Tribe
@tribelaw
The DOJ filing on 8/30/22 attached the grand jury’s May 2022 subpoena. It sought S/FRD documents. That refers to nuclear research that had been turned to military use. And that’s just one example of how deadly this breach by Trump has been.
3:46 PM · Aug 31, 2022·Twitter for iPhone

B.S. interpreter. I MAY AT TIMES.( push you )
@craig5759·1h
Replying to
@tribelaw
Lest we forget...
Twice impeached
Raided by FBI for hoarding Top
Secret docs
Perhaps obstruction/espionage
Incited and conspired in a coup
Admitted molesting women
Threatened to jail opponents
-PLACED 3 ON SUPREME COURT FOR A LIFETIME-

Barbara McNeill
@BarbaraAMcNeill·1h
He has not acted alone. Just as important as getting Trump will be to get all his co-conspirators. Otherwise they will put someone else in power that will pardon everyone. This must be a surgical strike that takes out all the cancer. IMO. #Justice #strategy #TrumpIsGoingToJail

NashvilleStacy
@nashvillestacy·1h
Replying to
@tribelaw
#TraitorTrump should have NEVER been allowed to run for President

Mary L Trump
@MaryLTrump·20h
This picture is harrowing.


Liz Cheney
@Liz_Cheney·13h
Yet more indefensible conduct by Donald Trump revealed this morning.


Andrew Weissmann
@AWeissmann_·18h
The Trump filings for a Special Master were a huge misstep. DOJ has used its response to disclose damning proof of a series of crimes, which it would not otherwise have been able to do. And one very compelling photo.

Rob Reiner
@robreiner·17h
I’ve refrained from saying this, but it’s time. LOCK HIM UP!!!

Jo
@JoJoFromJerz·12h
donald trump is days away from saying he hardly knows donald trump.

Peter Strzok
@petestrzok·21h
Feels like a good night to RT

Lindsey Graham
@LindseyGrahamSC · May 3, 2016
If we nominate Trump, we will get destroyed.......and we will deserve it.

Sara Azari
@azarilaw·19h
It’s past my bedtime but I’ll say this: I read the entire DOJ filing. I litigate against the government ever damn day so I know a few things beyond google lawyering and this platform. This is a robust well-substantiated brief. Trump is screwed.

Tom Watson
@tomwatson·11h
Let's be completely honest here: the entire White House press corps knew who he was - all four years, hell from the escalator on down - and pretended he was a legitimate political figure. The failure is astounding. Not of skill - but of character and ethics.

George Conway
@gtconway3d·18h
Ironic that Trump has done to himself exactly what so many people have been urging him to do to himself for years.

Andrew Weissmann
@AWeissmann_·13h
DOJ BIG PICTURE: you don’t make a filing this strong, bold, and factually accusatory if you don’t have every intention to indict.

George Conway
@gtconway3d
Not a parody. Evidence of guilt, and of a highly disordered personality.

Donald J. Trump
@realDonaldTrump 7m
Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see. Thought they wanted them kept Secret? Lucky I Declassified!

6:59 AM · Aug 31, 2022 from Washington, DC·Twitter for iPhone

Per Samuelsson
@1PerSamuelsson·10h
Replying to
@gtconway3d
Why haven’t Bedminster and T Tower been searched for government documents already?

Vivivachi
@Vivivachi·10h
Declassified the documents that don't exist because the search didn't turn up anything but also the FBI planted those documents that they didn't find but he's gonna need them back.

Hugo Lowell
@hugolowell·20h
NEW: DOJ suggests Trump counsel and Trump custodian — understood to be Christina Bobb — committed obstruction by representing that all docs from WH were in one storage location when they weren’t, and that all docs were turned over in response to subpoena when they weren’t

Jon Cooper
@joncoopertweets·11h
OMG — this!!!!

Anthony Citrano
@acitrano
It's almost impossible to believe he exists. It's as if we took everything that was bad about America, scraped it up off the floor, wrapped it all up in an old hot dog skin, and then taught it to make noises with its face.

CALL TO ACTIVISM
@CalltoActivism·9h
BREAKING: Steve Doocy STUNS his Fox News cohosts by denying Trump could have properly declassified documents and asked what secrets were doing in Trump’s desk: “these are the biggest secrets in the world!” Trump has lost Fox News.

Brian Tyler Cohen
@briantylercohen·8h
Imagine this was a photo of Obama’s living room and just try - TRY - to imagine what would be happening on Fox News right now.

MeidasTouch
@MeidasTouch·13h
The DOJ’s filing is simply damning. Donald Trump’s motion backfired. He is way in over his head. Not only is Trump virtually guaranteed to face charges, but his attorneys are facing serious prison time. This house of cards is collapsing before our eyes.

Asha Rangappa
@AshaRangappa_·5h
THREAD. The fact that Trump never formally declassified anything, and also never raised it to DOJ, but is asserting it (unofficially) now, is actually an incredibly damning admission by Trump. That's because it means that *he wanted these secrets to still have value*

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Part 1 of 2

United States' Response to Motion for Judicial Oversight and Additional Relief
Donald J. Trump, Plaintiff, v. United States of America, Defendant.
by Juan Antonio Gonzalez, United States Attorney and Jay I. Bratt, Chief, Counterintelligence and Export Control Section, National Security Division
08/31/2022

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

CASE NO. 22-CV-81294-CANNON

DONALD J. TRUMP,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
________________________________/

UNITED STATES’ RESPONSE TO MOTION FOR JUDICIAL OVERSIGHT AND ADDITIONAL RELIEF

On August 22, 2022, fourteen days after the Department of Justice executed a search warrant at the premises located at 1100 S. Ocean Blvd., Palm Beach, Florida 33480 (hereinafter, the “Premises”), a property of former President Donald J. Trump (“Plaintiff” or “the former President”), Plaintiff filed a “Motion for Judicial Oversight and Additional Relief.” Docket Entry (“D.E.”) 1. In his motion, Plaintiff requested, among other things, that the Court appoint a special master and that the government return to Plaintiff certain property. See id. The following day, this Court ordered Plaintiff to file a supplement to his motion addressing certain questions. D.E. 10. On August 26, Plaintiff filed such a supplement, D.E. 28, and on August 27, the Court entered a preliminary order on Plaintiff’s motion, D.E. 29. In compliance with this Order, the government hereby files its public Response to Plaintiff’s Motion and Supplement, including Plaintiff’s request for the appointment of a special master. See id.

The legal issues presented, and the relief requested in the filings, are narrow, notwithstanding the wide-ranging meritless accusations leveled against the government in the motion. See D.E. 1; D.E. 28. Plaintiff’s filings present three issues: whether Plaintiff is currently entitled to the return of any property, to injunctive relief, and to the appointment of a special master.1 Not only does Plaintiff lack standing to raise these claims at this juncture, but even if his claims were properly raised, Plaintiff would not be entitled to the relief he seeks.

Summary of Argument

Plaintiff’s motion to appoint a special master, enjoin further review of seized materials, and require the return of seized items fails for multiple, independent reasons. As an initial matter, the former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him. The Presidential Records Act makes clear that “[t]he United States” has “complete ownership, possession, and control” of them. 44 U.S.C. § 2202. Furthermore, this Court lacks jurisdiction to adjudicate Plaintiff’s Fourth Amendment challenges to the validity of the search warrant and his arguments for returning or suppressing the materials seized. For those reasons and others, Plaintiff has shown no basis for the Court to grant injunctive relief. Plaintiff is not likely to succeed on the merits; he will suffer no injury absent an injunction—let alone an irreparable injury; and the harms to the government and the public would far outweigh any benefit to Plaintiff.

Even if the Court had jurisdiction to entertain Plaintiff’s claims, appointment of a special master is unnecessary and would significantly harm important governmental interests, including national security interests. Appointment of a special master is disfavored in a case such as this. In any event, the government’s filter team has already completed its work of segregating any seized materials that are potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the remaining materials, including any that are potentially subject to claims of executive privilege. Appointment of a special master to review materials potentially subject to claims of executive privilege would be particularly inappropriate because binding Supreme Court precedent forecloses Plaintiff’s argument that review of these materials by personnel within the Executive Branch raises any such privilege concerns. Furthermore, appointment of a special master would impede the government’s ongoing criminal investigation and—if the special master were tasked with reviewing classified documents—would impede the Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused and from identifying measures to rectify or mitigate any damage that improper storage caused. Lastly, this case does not involve any of the types of circumstances that have warranted appointment of a special master to review materials potentially subject to attorney-client privilege.

Factual Background

Mindful that the Court ruling on the present motion is not the same Court that authorized the search warrant from which this civil action results, the government provides below a detailed recitation of the relevant facts, many of which are provided to correct the incomplete and inaccurate narrative set forth in Plaintiff’s filings.

A. NARA, upon Observing that It Was Missing Presidential Records from the Former President’s Administration, Attempted to Obtain the Missing Records Voluntarily from the Former President’s Representatives

Throughout 2021, the United States National Archives and Records Administration (“NARA”) had ongoing communications with representatives of former President Trump in which it sought the transfer of what it perceived were missing records from his Administration. See Letter from David S. Ferriero, Archivist of the United States, to the Hon. Carolyn B. Maloney (Feb. 18, 2022), available at https://www.archives.gov/files/foia/fer ... 8.2022.pdf (hereinafter, “Ferriero Letter”) (attached hereto as Attachment A), at 1; Letter from Debra Steidel Wall, Acting Archivist of the United States, to Evan Corcoran (May 10, 2022), available at https://www.archives.gov/files/foia/wal ... ncorcoran- re-trump-boxes-05.10.2022.pdf (hereinafter, “Wall Letter”) (attached hereto as Attachment B), at 1 (“As you are no doubt aware, NARA had ongoing communications with the former President’s representatives throughout 2021 about what appeared to be missing Presidential records.”). These communications ultimately resulted in the provision of fifteen boxes (hereinafter, the “Fifteen Boxes”) from former President Trump to NARA in January 2022. See Ferriero Letter at 1; Wall Letter at 1; see also In Re Sealed Search Warrant, Case No. 22-MJ-8332 (S.D. Fla.) (hereinafter, “MJ Docket”) D.E. 102-1 at ¶¶ 39, 47. When producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified. NARA asked representatives of the former President, as required by the Presidential Records Act, to continue to search for any additional Presidential records that had not been transferred to NARA. Ferriero Letter at 2.

B. Observing that the Fifteen Boxes Contained “Highly Classified Records,” NARA Sent a Referral to the Department of Justice

“In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery.” Wall Letter at 1. Specifically, on February 9, 2022, the Special Agent in Charge of NARA’s Office of the Inspector General sent a referral via email to the Department of Justice (“DOJ”) (hereinafter, the “NARA Referral”). MJ Docket D.E. 102-1 at ¶ 24. The NARA Referral stated that a preliminary review of the Fifteen Boxes indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and a lot of classified records. Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.” Id. (internal quotations omitted). The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.

C. The Former President Delayed the FBI’s Access to the Fifteen Boxes

As the NARA Referral stated, the Fifteen Boxes contained “highly classified records.” Upon learning this, DOJ sought access to the Fifteen Boxes in part “so that the FBI and others in the Intelligence Community could examine them.” Wall Letter at 1. DOJ followed the steps outlined in the Presidential Records Act to obtain access to the Fifteen Boxes. On April 12, 2022, NARA advised counsel for the former President that it intended to provide the FBI with the records the following week (i.e., the week of April 18). Id. at 2. That access was not provided then, however, because a representative of the former President requested an extension of the production date to April 29. See id.

As the Acting Archivist recounted, on April 29, DOJ advised counsel for the former President as follows:

There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch.

See id.

On the same date that DOJ sent this correspondence, counsel for the former President requested an additional extension before the materials were provided to the FBI and stated that in the event that another extension was not granted, the letter should be construed as “‘a protective assertion of executive privilege made by counsel for the former President.’” Id. In its May 10 response, NARA rejected both of counsel’s requests. First, NARA noted that significant time—four weeks—had elapsed since NARA first informed counsel of its intent to provide the documents to the FBI. Id. Second, NARA stated that the former President could not assert executive privilege to prevent others within the Executive Branch from reviewing the documents, calling that decision “not a close one.” Id. at 3. NARA rejected on the same basis counsel’s “‘protective assertion’” of privilege. Id. at 3-4. Accordingly, NARA informed counsel that it would provide the FBI access to the records beginning as early as Thursday, May 12, 2022. Id. at 4. Although the former President could have taken legal action prior to May 12 to attempt to block the FBI’s access to the documents in the Fifteen Boxes, he did not do so.

D. The FBI’s Review of the Fifteen Boxes Highlighted the National Security Implications of Their Improper Storage

Between May 16-18, 2022, after finally obtaining access to the Fifteen Boxes, FBI agents conducted a preliminary review of the documents and identified documents with classification markings in fourteen of the Fifteen Boxes. MJ Docket D.E. 102-1 at ¶ 47. A preliminary review revealed the following: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Id. Further, the FBI agents observed markings reflecting that the documents were subject to sensitive compartments and dissemination controls used to restrict access to material in the interest of national security. Id.

E. After Obtaining Evidence Indicating that Additional Classified Records Remained at the Premises, DOJ Initially Sought Their Return Through the Issuance of a Grand Jury Subpoena2

Through its investigation,3 the FBI developed evidence indicating that even after the Fifteen Boxes were provided to NARA, dozens of additional boxes remained at the Premises that were also likely to contain classified information. Accordingly, DOJ obtained a grand jury subpoena, for which the former President’s counsel accepted service on May 11, 2022. See Attachment C; see also D.E. 1 at 5. The subpoena was directed to the custodian of records for the Office of Donald J. Trump, and it requested “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings [list of classification markings].” Attachment C. DOJ also sent the former President’s counsel a letter that suggested they could comply by “providing any responsive documents to the FBI at the place of their location” and by providing from the custodian a “sworn certification that the documents represent all responsive records.” See Attachment D. The letter further stated that if no responsive documents existed, the custodian should provide a sworn certification to that effect. Id.

The subpoena’s return date was May 24, 2022. Counsel sought an extension for complying. After initially denying the request, the government offered counsel an extension for complying with the subpoena until June 7, 2022. Counsel for the former President contacted DOJ on the evening of June 2, 2022, and requested that FBI agents meet him the following day to pick up responsive documents.

F. In Response to the Subpoena, Counsel for the Former President Provided a Limited Number of Documents Accompanied by a Certification that All Responsive Documents Were Produced Following a Diligent Search

On June 3, 2022, three FBI agents and a DOJ attorney arrived at the Premises to accept receipt of the materials. In addition to counsel for the former President, another individual was also present as the custodian of records for the former President’s post-presidential office. When producing the documents, neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege. Instead, counsel handled them in a manner that suggested counsel believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents. The individual present as the custodian of records produced and provided a signed certification letter, which stated in part the following:

Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge.

See Attachment E.4

After producing the Redweld, counsel for the former President represented that all the records that had come from the White House were stored in one location—a storage room at the Premises (hereinafter, the “Storage Room”), and the boxes of records in the Storage Room were “the remaining repository” of records from the White House. Counsel further represented that there were no other records stored in any private office space or other location at the Premises and that all available boxes were searched. As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.

Once in a secure government setting, the FBI conducted a preliminary review of the documents contained in the Redweld envelope. That preliminary document review revealed the following: 38 unique documents bearing classification markings, including 5 documents marked as CONFIDENTIAL, 16 documents marked as SECRET, and 17 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting sensitive compartments and dissemination controls. Counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.

G. After Further Investigation Indicated that the Response to the Subpoena Was Incomplete, that Obstructive Conduct Occurred in Connection with the Response to the Subpoena, and that Classified Information Remained at the Premises, DOJ Obtained a Court-Authorized Search Warrant

Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3. In particular, the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation. See also MJ Docket D.E. 80 at 8 (“As the Government aptly noted at the hearing, these concerns are not hypothetical in this case. One of the statutes for which I found probable cause was 18 U.S.C. § 1519, which prohibits obstructing an investigation.”). This included evidence indicating that boxes formerly in the Storage Room were not returned prior to counsel’s review.

Against that backdrop, and relying on the probable cause that the investigation had developed at that time, on August 5, 2022, the government applied to Magistrate Judge Reinhart for a search and seizure warrant, which cited three statutes: 18 U.S.C. § 793 (Willful retention of national defense information), 18 U.S.C. § 2071 (Concealment or removal of government records), and 18 U.S.C. § 1519 (Obstruction of federal investigation).5 See MJ Docket, D.E. 57 at 3. On the same date, Judge Reinhart found that probable cause existed that evidence of each of the crimes would be found at the Premises, and he authorized the search warrant. MJ Docket, D.E. 17 at 2.

Pursuant to the search warrant, the government was permitted to search the “‘45 Office’ [the former President’s office space at the Premises], all storage rooms, and all other rooms or areas within the premises used or available to be used by [the former President] and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate” but not “areas currently (i.e., at the time of the search) being occupied, rented, or used by third parties (such as Mar-a-Largo Members) and not otherwise used or available to be used by [the former President] and his staff, such as private guest suites.” MJ Docket, D.E. 17 at 3. Judge Reinhart authorized the government to seize any evidence of the applicable crimes. Id. at 2, 4. Importantly, the government was authorized by the warrant to seize “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes” and any government or Presidential records created during the former President’s Administration. Id. at 4.

H. During the August 8 Execution of the Search Warrant at the Premises, the Government Seized Thirty-Three Boxes, Containers, or Items of Evidence, Which Contained over a Hundred Classified Records, Including Information Classified at the Highest Levels

Pursuant to the above-described search protocols, the government seized thirty-three items of evidence, mostly boxes (hereinafter, the “Seized Evidence”), falling within the scope of Attachment B to the search warrant because they contained documents with classification markings or what otherwise appeared to be government records. Three classified documents that were not located in boxes, but rather were located in the desks in the “45 Office,” were also seized. Per the search warrant protocols discussed above, the seized documents included documents that were collectively stored or found together with documents with classification markings.6

The investigative team has reviewed all the materials in the containers that the privilege review team did not segregate as potentially attorney-client privileged. Of the Seized Evidence, thirteen boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings—that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena—were seized. Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).

The classification levels ranged from CONFIDENTIAL to TOP SECRET information, and certain documents included additional sensitive compartments that signify very limited distribution. In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were permitted to review certain documents.

Notwithstanding counsel’s representation on June 3, 2022, that materials from the White House were only located in the Storage Room, classified documents were found in both the Storage Room and in the former President’s office. Moreover, the search cast serious doubt on the claim in the certification (and now in the Motion) that there had been “a diligent search” for records responsive to the grand jury subpoena. In the storage room alone, FBI agents found 76 documents bearing classification markings. All of the classified documents seized in the August 8 search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information. That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the “diligent search” that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.

I. The Privilege Review Team Has Completed Its Work

The privilege review team has completed its review of the materials in its custody and control that were identified as potentially privileged. The privilege review team identified only a limited subset of potentially attorney-client privileged documents. Pursuant to the court-approved filter protocols, the privilege review team was permitted to

(a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

MJ Docket D.E. 102-1 at ¶ 84.

Having completed its review of materials identified as potentially privileged, the privilege review team is prepared, pending direction from the Court, to proceed in accordance with the above procedures.

Argument

I. Plaintiff Lacks Standing to Seek Judicial Oversight and Related Relief in Relation to Any Presidential Records Seized from the Premises

Plaintiff asks for a special master and related relief in anticipation of moving for the return of property under Criminal Rule 41(g). As he asserted: “[T]he requested relief is necessary to ensure that Movant can properly evaluate and avail himself of the important protections of Rule 41 of the Federal Rules of Criminal Procedure, particularly the ability to move for the return of seized property under Rule 41(g).” D.E. 28 at 4.

But, “[ i]n order for an owner of property to invoke Rule 41(g), he must show that he had a possessory interest in the property seized by the government.” United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005); see also Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975) (court must consider “whether the plaintiff has an individual interest in and need for the material whose return he seeks”);7 3A Charles Alan Wright and Sarah N. Welling, Fed. Prac. & Proc. § 690, at 248 (4th ed. 2010).

Plaintiff has no property interest in any Presidential records (including classified records) seized from the Premises. The Presidential Records Act provides—under a heading entitled “Ownership of Presidential records”—that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records.” 44 U.S.C. § 2202; see Citizens for Responsibility & Ethics in Wash. v. Trump, 924 F.3d 602, 603 (D.C. Cir. 2019) (the PRA “establishes the public ownership of records created by . . . presidents and their staffs in the course of discharging their official duties” (brackets and internal quotations omitted)). And Presidential Records include any “documentary materials” that were “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” while “conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C. § 2201(2).

Neither of Plaintiff’s filings addresses or even cites that statutory provision. Nor does Plaintiff offer any other colorable argument that he has a property interest in any Presidential records seized. Plaintiff’s Motion, in fact, asserts that “[t]he documents seized at Mar-a-Lago on August 8, 2022 . . . were created during his term as President.” D.E. 1 at 15. These are precisely the types of documents that likely constitute Presidential records.

Because these records do not belong to Plaintiff, Rule 41(g) gives him no right to have them returned. And because Plaintiff has no such right, this Court should not appoint a special master to review Presidential records for the purpose of entertaining potential claims of executive privilege. At most, Plaintiff can seek return of his personal property.

II. Plaintiff Is Not Entitled to the Return of Property or to Injunctive Relief

A. Plaintiff Is Not Entitled to the Return of Any Property

As his last claim for relief, Plaintiff asks this Court to order “the Government to return any item seized pursuant to the Search Warrant that was not within the scope of the Search Warrant.” D.E. 28 at 10; see id. at 4. In Plaintiff’s view, retaining such material “would amount to a violation of the Fourth Amendment’s protections against wrongful searches and seizures.” D.E. 28 at 9. Although Plaintiff does not specify what material he contends was seized in excess of the search warrant, certain personal effects were commingled with classified material in the Seized Evidence, and they remain in the custody of the United States because of their evidentiary value. Personal effects without evidentiary value will be returned.

Nonetheless, contrary to Plaintiff’s contention, personal effects in these circumstances are not subject to return under Criminal Rule 41(g), for four independent reasons. First, the search warrant authorized seizing and retaining items in containers/boxes in which documents with classification markings were stored. See MJ Docket D.E. 17 at 4. Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.

Second, even if the personal effects were outside the scope of the search warrant (contrary to fact), their seizure and retention would not violate the Fourth Amendment because they were commingled with documents bearing classification markings that were indisputably within the scope of the search warrant. See, e.g., United States v. Wuagneux, 683 F.2d 1343, 1353 (11th Cir. 1982) (“It was also reasonable for the agents to remove intact files, books and folders when a particular document within the file was identified as falling with the scope of the warrant. To require otherwise ‘would substantially increase the time required to conduct the search, thereby aggravating the intrusiveness of the search.’” (citation omitted)).

Third, even if the personal effects were seized in excess of the search warrant—which Plaintiff has not established—Criminal Rule 41(g) does not require their return because that Rule was amended in 1989 to recognize that the United States may retain evidence collected while executing a warrant in good faith. See, e.g., Grimes v. CIR, 82 F.3d 286, 291 (9th Cir. 1996). As the Advisory Committee explained in connection with the 1989 amendment of Criminal Rule 41(e) (now subsection (g)), Supreme Court precedent permits “evidence seized in violation of the fourth amendment, but in good faith pursuant to a warrant,” to be used “even against a person aggrieved by the constitutional violation,” and “Rule 41(e) is not intended to deny the United States the use of evidence permitted by the fourth amendment and federal statutes.” The decoupling of Criminal Rule 41(g) from the Fourth Amendment also explains why a motion to return property provides no forum to litigate the scope of a search warrant: failure to comply with a search warrant or the Fourth Amendment is neither necessary nor sufficient to prove a movant’s entitlement to the return of property under Criminal Rule 41(g).

Fourth, and independent of the three foregoing reasons, the former President could obtain the return of his personal effects under Criminal Rule 41(g) only if he satisfies the four-part Richey test. That decision established four factors that inform whether courts should entertain a Criminal Rule 41 motion for return of property before the initiation of criminal proceedings: (1) whether the movant shows that government agents “displayed a callous disregard for . . . constitutional rights”; (2) whether the movant has an interest in and need for the material that he seeks; (3) whether he would be irreparably injured by denial of the property; and (4) whether he has an adequate remedy at law for his grievance. Richey, 515 F.2d at 1243-44 (cleaned up). Although the former President may have a property interest in his personal effects, he cannot demonstrate callous disregard of the Fourth Amendment considering the patient exhaustion of less-intrusive methods to obtain return of documents with classification markings from the Premises and FBI Special Agents’ scrupulous adherence to the terms of the search warrant, which permitted them to seize the entire “containers/boxes” in which the documents with classification markings were stored, as well as other containers/boxes stored collectively. Moreover, the former President has not established irreparable injury in the deprivation of his personal property.

B. Plaintiff Is Not Entitled to Injunctive Relief

To the extent Plaintiff seeks a preliminary injunction prohibiting the government from continuing to review seized materials while the Court considers his motion, see D.E. 1 at 14- 15, such relief is wholly unwarranted.8

“A party seeking a preliminary injunction must establish that (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Vital Pharmaceuticals, Inc. v. Alfieri, 23 F.4th 1282, 1290-91 (11th Cir. 2022) (internal quotations omitted). “A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites.” Id. at 1291 (internal quotations omitted).

For the reasons discussed below, the former President has not established a likelihood of success on the merits. As to the second condition for injunctive relief, the former President has failed to establish that he would suffer any injury absent an injunction—let alone an irreparable injury. First, any Presidential records seized pursuant to the search warrant belong to the United States, not to the former President. 44 U.S.C. § 2202. As such, the former President cannot claim that he is personally injured by a review of those records by personnel within the Executive Branch. See also Nixon v. Administrator of General Services, 433 U.S. 425, 451 (1977) (“Nixon v. GSA”) (review of Presidential records by “personnel in the Executive Branch sensitive to executive concerns” “constitutes a very limited intrusion” into confidentiality of former President’s records). Second, even if review of these materials by personnel within the Executive Branch constituted an injury to the former President, that injury would already be complete. As described above, personnel within the Case Team have already reviewed all of the seized materials except those withheld pursuant to the filter protocol. See supra at 3, 13. Moreover, as the government notified the Court yesterday, DOJ and the Office of the Director of National Intelligence (“ODNI”) are currently facilitating a classification review of these materials, and ODNI is leading an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of these materials. D.E. 31 at 2-3. Any possible injury is thus, at most, an incremental and theoretical “harm” based on further review of materials that the Case Team has already reviewed and inventoried.

Finally, the fact that the former President filed this motion two weeks after the search occurred—and only just effected service on the United States on August 29—“militates against a finding of irreparable harm.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016). “[T]he very idea of a preliminary injunction is premised on the need for speedy and urgent action to protect a plaintiff’s rights before a case can be resolved on its merits.” Id. That is why “district courts within this Circuit and elsewhere have found that a party’s failure to act with speed or urgency in moving for a preliminary injunction necessarily undermines a finding of irreparable harm.” Id. (citing cases). Although courts have generally considered delays of “a few months” or more as a factor against granting injunctive relief, id., a delay of two weeks in this particular context is significant. Typically, parties who seek the appointment of a special master following the execution of a search warrant make such requests immediately. For example, after FBI agents executed search warrants on April 9, 2018, at various properties belonging to Michael Cohen, who had served as private counsel to then-President Trump, Cohen’s counsel sent a letter on the same day to the United States Attorney’s Office requesting an opportunity to review the seized materials and contending that documents subject to attorney-client privilege “should be protected from government review.”9 After that request was denied, Cohen filed a motion for a temporary restraining order on April 12 or April 13, 2018.10 Then-President Trump himself moved to intervene in the proceedings on April 15, 2018—just six days after the search.11 The need for promptness when a party seeks appointment of a special master is obvious: the government may begin reviewing materials as soon as they are seized, and a delay of even two weeks may well mean—as it does here—that the government has reviewed all of the seized materials by the time relief is sought. The former President’s delay in filing this motion thus strongly “militates against a finding of irreparable harm.” Wreal, 840 F.3d at 1248.

As to the third requisite for injunctive relief, “the threatened injury to the movant” is far outweighed by the “damage the proposed injunction may cause” to the government. Vital Pharmaceuticals, 23 F.4th at 1291 (internal quotations omitted). DOJ is in the midst of an ongoing criminal investigation pertaining to potential violations of the Espionage Act, 18 U.S.C. § 793(e), as well as obstruction of justice, 18 U.S.C. § 1519, and unlawful concealment or removal of government records, 18 U.S.C. § 2071. The Intelligence Community is also reviewing the seized documents to assess the potential risk to national security that would result if these materials were disclosed while they were unlawfully stored at the Premises. An injunction barring any further review of these documents would therefore not only hinder an ongoing criminal investigation, but would also thwart entirely an ongoing and sensitive review of risks to national security. For the same reasons, an injunction would plainly be “adverse to the public interest.” Vital Pharmaceuticals, 23 F.4th at 1291.

III. Even if the Former President Had Standing, the Appointment of a Special Master Would Be Unnecessary and Would Interfere with Legitimate Government Interests

As described above, the government’s privilege review team has already identified any materials potentially subject to attorney-client privilege, and the government’s investigative team has already reviewed all of the materials that were not segregated by the privilege review team. Appointment of a special master to review potential privilege claims in either category is therefore unnecessary. It would do little or nothing to protect any legitimate interests that Plaintiff may have while impeding the government’s ongoing criminal investigation, as well as the Intelligence Community’s review of potential risks to national security that may have resulted from the improper storage of the seized materials.

A. Federal Rule of Civil Procedure 53 Counsels Against Appointment of a Special Master in Circumstances Such as These

In this procedural posture, a special master can be appointed, without the parties’ consent, only to address “pretrial and post-trial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C). “[R]eference to a master under Rule 53 is to be the exception and not the rule.” Hayes v. Foodmaker, Inc., 634 F.2d 802, 803 (5th Cir. Unit A 1981) (per curiam) (citing La Buy v. Howes Leather Co., 352 U.S. 249, 257-58 (1957)). Rule 53(a)(1)(C)’s “restrictive language”— limiting appointments to cases where judges cannot “effectively” or “timely” address issues themselves—“carries forward the traditional notion that masters are the exception, not the usual or common practice.” 9C Charles Alan Wright and Arthur R. Miller, Fed. Prac. & Proc. § 2602.1 (3d ed.).

B. Appointment of a Special Master Is Neither Necessary nor Appropriate to Address Executive Privilege in this Case

The former President asserts (D.E. 1 at 14-16) that review by a special master is necessary because the records at issue are presumptively subject to executive privilege. But even if the former President had actually asserted executive privilege with regard to any of the seized documents (which he has not), and even if he had statutory authority to do so (which is not established), such an assertion would fail here because this case involves the recovery and review of executive records by executive officials performing core executive functions. The Supreme Court has made clear that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Nixon v. GSA, 433 U.S. at 447-48. And even if there might be some extraordinary circumstance in which a former President could successfully assert executive privilege against the Executive Branch, this case plainly would not qualify: the seized materials—and, in particular, any such materials marked as classified—are essential to a criminal investigation into the handling of the records themselves, and the government is also reviewing those highly sensitive records to determine whether their handling created risks to national security. Those vital Executive Branch needs far outweigh any limited burden on the general interests served by the executive privilege. Finally, appointment of a special master in these circumstances would be inconsistent with basic principles of equity.

1. A former President cannot successfully assert executive privilege against the Executive Branch in its performance of executive functions.

Even if the former President had attempted to assert executive privilege (which he has not done),12 that assertion would not justify any restrictions on Executive Branch access to the documents here. Executive privilege is “inextricably rooted in the separation of powers under the Constitution,” United States v. Nixon, 418 U.S. at 708, and it “derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities,” Nixon v. GSA, 433 U.S. at 447. The privilege exists “not for the benefit of the President as an individual, but for the benefit of the Republic.” Id. at 449. Consistent with the privilege’s function of protecting the Executive Branch as an institution, it may be invoked in appropriate cases to prevent the sharing of materials outside the Executive Branch—i.e., with Congress, the courts, or the public. Cf. Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (per curiam) (noting unresolved questions about whether and under what circumstances a former President can invoke the privilege to prevent such “disclosure”—there, to Congress). Yet the former President cites no case—and the government is aware of none—in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch.

To the contrary, in what appears to be the only case in which such an assertion has ever been made, Nixon v. GSA, the Supreme Court rejected former President Nixon’s assertion that a statute requiring the General Services Administration13 to take custody of and review recordings and documents created during his presidency violated either the separation of powers or executive privilege. 433 U.S. at 433-36. Addressing the separation of powers, the Court emphasized that the Administrator of the GSA “is himself an official of the Executive Branch,” and that the GSA’s “career archivists” are likewise “Executive Branch employees.” Id. at 441. The Court rejected the former President’s invocation of privilege against the statutorily required review by the GSA, describing it as an “assertion of a privilege against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. The Court explained that the relevant question was whether review by Executive Branch officials within the GSA would “impermissibly interfere with candid communication of views by Presidential advisers.” Id. at 451. And it held that the question was “readily resolved” because the review in question was “a very limited intrusion by personnel in the Executive Branch sensitive to executive branch concerns.” Id.

Additionally, the framework set forth in the PRA and its implementing regulations providing for the assertion of privileges by a former President, including executive privilege, see 44 U.S.C. §§ 2205(2), 2208; 36 C.F.R. § 1270.44(a) and (d), is inapplicable here.14 First, Plaintiff did not convey the seized materials to NARA as required by the PRA. As such, he cannot now maintain that he has a statutory right to make privilege assertions pursuant to that law. Second, even if the PRA process were available to Plaintiff, it does not follow that he could successfully assert executive privilege against the Executive Branch. To the contrary, the PRA makes clear that it does not expand the scope of executive privilege. See 44 U.S.C. § 2204(c)(2) (“Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.”). As just discussed, the only time executive privilege was asserted against the Executive Branch by a former President, the Supreme Court rejected it. Nixon v. GSA, supra.

These principles resolve the former President’s request for a special master. As in Nixon v. GSA, this case involves potential assertions of executive privilege by a former President against the “Executive Branch in whose name the privilege is invoked.” 433 U.S. at 447- 48. This case does not implicate any disclosure outside the Executive Branch, and the review of the records at issue is being conducted “by personnel in the Executive Branch sensitive to executive concerns.” Id. at 451; see also id. at 444 (“t is clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function.”). Accordingly, [i]even in a case where records might be withheld from the public pursuant to a valid assertion of privilege, there would not be a basis for withholding them from review by the Executive Branch itself in pursuit of its core executive functions.

2. Even if a former President could in some circumstances assert executive privilege against the Executive Branch, no such assertion would be valid here.

In any event, even if there could be some extraordinary circumstance in which a former President could validly assert executive privilege against the Executive Branch itself, this case plainly would not qualify. The Executive Branch is reviewing the records at issue in furtherance of two core executive functions: investigating the potential unlawful handling of the records, including highly classified records, and assessing the resulting risks to national security. Access to the records is essential to the performance of those functions. And those vital Executive Branch interests far outweigh any burden on the institutional interests the privilege serves to protect—particularly where, as here, the former President has not even attempted to establish any particularized harm from the review of specific records.

In United States v. Nixon, the Supreme Court held that the need for evidence in a criminal trial outweighed even a sitting President’s assertion of executive privilege over presidential communications. The Court explained that, although the “[t]he interest in preserving confidentiality is weighty indeed and entitled to great respect,” 418 U.S. at 712, assertions of the privilege must also “be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer,” id. at 708-709 (internal quotations omitted). Ultimately, the Court concluded that “[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Id. at 713.

Similar logic applies here. The records at issue were seized pursuant to a search warrant reflecting a judicial finding of probable cause to believe that they constitute evidence of violations of statutes specifically governing the handling of government records in general and national defense information in particular. See supra at 11-12 (citing 18 U.S.C. §§ 793 and 2071, as well as 18 U.S.C. § 1519). The Executive Branch has a “demonstrated, specific need” for the records at issue, Nixon, 418 U.S. at 713, because the records—and particularly any records marked as classified—are central to the investigation. Indeed, they are the very subject of the relevant statutes. And, even more so than in United States v. Nixon, there is little risk that the possibility of review in the highly unusual circumstances presented here would materially chill communications by future presidential advisers. See 418 U.S. at 712 (presidential advisors would not likely “be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution”). To the contrary, the Executive Branch’s efforts here are designed to ensure the confidentiality and proper treatment of sensitive presidential records that were improperly stored—a process that should enhance, rather than undermine, future presidential communications.15

The Executive Branch’s review here also serves another compelling interest that was not at issue in Nixon: The records at issue include sensitive and highly classified documents. As the government has explained, the Intelligence Community, under the supervision of the Director of National Intelligence, is conducting a classification review of those documents and an assessment of the potential risk to national security that could result from their disclosure. D.E. 31 at 2-3. That additional vital purpose provides yet further reason to conclude that the Executive Branch’s interest in securing and reviewing the materials at issue here outweighs any limited burden on the confidentiality of presidential communications— and thus that the privilege would be overcome even if it were validly asserted. This Court should be particularly reluctant to order disclosure of highly classified materials to a special master absent an especially strong showing that such a step is necessary. Cf. United States v. Reynolds, 345 U.S. 1, 10-11 (1952) (courts should be cautious before requiring judicial review, even ex parte and in camera, of documents whose disclosure would jeopardize national security).

3. Appointment of a special master to review materials for claims of executive privilege would be inconsistent with principles of equity.

The former President has sought to invoke this Court’s equitable jurisdiction, see D.E. 1 at 14; D.E. 28 at 1, 6-8, but appointment of a special master to review the seized materials for claims of executive privilege would be fundamentally inequitable. First, to the extent the former President’s arguments rest on a claim that he has been deprived of his rights under the PRA to assert potential privilege claims, see D.E. 1 at 12, the former President forfeited the ability to rely on the PRA by failing to provide his records to NARA, as the law requires. Had the seized records been returned to NARA—upon the former President’s departure from office, or during the many months afterward in which NARA sought return of the missing records—Plaintiff could have at least tendered a claim of executive privilege to the Archivist with regard to any materials sought by DOJ. Indeed, that is precisely what occurred when DOJ sought access to the fifteen boxes that were returned to NARA in January 2022. See supra at 7.16 As described above, the government resorted to a search warrant only after the former President failed to return missing records as requested by NARA and then as required by a grand jury subpoena. See supra at 4-5, 8-10. The government’s seizure of these records through use of a search warrant is a direct result of Plaintiff’s own conduct, and this “inequitable conduct” “make[s] equitable relief inappropriate.” Ramirez v. Collier, 142 S. Ct. 1264, 1282 (2022).

Second, for the reasons described above, the government has an urgent interest in continuing its review of these materials, both for purposes of its criminal investigation and to assess potential national security risks caused by improper storage of classified records. Appointment of a special master would undoubtedly delay both processes—including because a special master would likely need to obtain a security clearance and specific authorization from relevant entities within the Intelligence Community to review particularly sensitive materials.

Third, appointment of a special master for purposes of reviewing executive privilege claims is not necessary to protect any personal rights belonging to the former President. Unlike possible assertions of attorney-client privilege by the former President with respect to his personal counsel, which is a personal right that belongs to the client, see, e.g., In re Special September 1978 Grand Jury (II), 640 F.2d 49, 62 (7th Cir. 1980), executive privilege exists not “for the benefit of the President as an individual, but for the benefit of the Republic,” Nixon v. GSA, 433 U.S. at 449. In any event, as discussed above, the investigative team has already reviewed all of the seized materials that were not segregated by the filter team. Restricting further review by the government—including by the Intelligence Community—would therefore do little to protect Plaintiff’s purported interests or rights.

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Part 2 of 2

C. This Case Does Not Involve the Search of an Attorney’s Office and the Attorney-Client Privilege Issues Presented Are Not Complex, Voluminous, or Novel

The appointment of a special master is not necessary to adjudicate potential attorney-client privilege issues. “[I]t is well-established that filter teams—also called ‘taint teams’—are routinely employed to conduct privilege reviews.” In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, No. 20-MJ-3278, 2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020) (citing multiple Eleventh Circuit cases approving the use of filter teams), aff’d, 11 F.4th 1235 (11th Cir. 2021). Tellingly, the cases relied upon by the former President that have employed special masters rather than filter teams invariably involve the search of law offices. See D.E. 1 at 18-19; D.E. 28 at 5-6. The former President analogizes searches of law offices to the present search by claiming that they are “contexts involving similar matters of privilege.” D.E. 1 at 18. Looking at the cases he cites, however, and the reasons why special masters have been appointed when law offices have been searched, it becomes clear that searches of law offices and the instant search do not at all involve similar privilege concerns.

The cases cited by the former President involve thorny issues presented by searches of law firms. In particular, courts have cited the complexities posed when materials are seized from attorneys involving multiple clients. See, e.g., In Re: Search Warrant Issued June 13, 2019, 942 F.3d 159, 166-67 (4th Cir. 2019) (“The electronically seized materials contained all of Lawyer A’s email correspondence, including email correspondence related to Client A and numerous other Law Firm clients. More specifically, Lawyer A’s seized email inbox contained approximately 37,000 emails, of which 62 were from Client A or contained Client A’s surname.”); see id. at 178 (“[T]he judge may well have rejected the Filter Team and its Protocol if the judge had known (1) that 99.8 percent of the 52,000 seized emails were not from Client A, were not sent to Client A, and did not mention Client A’s surname; and (2) that many of those seized emails contained privileged information concerning other clients of the Law Firm.”); id. at 181 (citing other cases involving the appointment of a special master, all of which involved searches of attorney offices); In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 2020 WL 6689045, at *2 (“As Judge O’Sullivan aptly noted, ‘[m]ost of the cases cited by the movants concern the searches of criminal defense attorneys or law firms that performed some criminal defense work’ . . . . Indeed, those cases involved different concerns than those posed by the case at hand, as there was a risk that the members of the filter team would at some point be involved in the criminal investigation and/or prosecution of other clients who were not the subject of the underlying investigation.”); United States v. Stewart, No. 02-CR-395, 2002 WL 1300059, at *3 (S.D.N.Y. June 11, 2002) (“Both parties also rightly agree that law office searches raise special concerns . . . .); In re Search Warrants Executed on April 28, 2021, No. 1:21-MC-425, D.E. 1 at 2 (S.D.N.Y. May 4, 2021) (“nder certain exceptional circumstances, the appointment of a special master to review materials seized from an attorney may be appropriate. Those [u]circumstances may exist where the search involves the files of a criminal defense attorney with cases adverse to the United States Attorney’s Office . . . .”); see also United States v. Abbell, 914 F. Supp. 519, 519 (S.D. Fla. 1995) (describing the “responsiveness and privilege issues raised” in the search of a law firm office as “exceptional”).17

The attorney-client privilege issues in this case present none of the complexities associated with a search of a law firm. This is not a case where a U.S. Attorney’s office has seized materials related to multiple clients who may also be under investigation by the same office. Moreover, as noted above, the volume of documents is small, and the government’s filter team has already completed its review of them. It is prepared to follow the procedures set forth in the warrant, and introducing a special master would only result in delay to the process.

D. The Court Should Not Appoint a Special Master, But if It Does, the Below Conditions Should Apply

For all the above reasons, the Court should not appoint a special master. If the Court decides to do so, as directed by the Court, the government proposes the following conditions.

First, the Court should direct the parties to confer and submit a joint list of proposed candidates by September 7, 2022.

Second, the special master should be required to submit an affidavit concerning any potential bases for disqualification before this Court issues an appointment order. See Fed. R. Civ. P. 53(b)(3)(A).

Third, the Court should specify the following duties and impose the following limitations:

• The special master’s duties should be limited to assessing Plaintiff’s claims of attorney-client privilege over the set of potentially privileged documents identified by the Privilege Review Team. Fed. R. Civ. P. 53(b)(2)(A). For the reasons articulated above, there is no precedent or basis for appointing a special master to review documents for executive privilege and barring current Executive Branch law enforcement officials or officers from continuing to access that material, including to assess national security risks.

• If the special master must be permitted to review classified documents, in order to avoid unnecessary delay, the special master should already possess a Top Secret/SCI security clearance.

• The special master should be allowed to communicate ex parte with the Court or either party to facilitate the review, although all final decisions must be provided to both parties to allow for either party to seek the Court’s review. Fed. R. Civ. P. 53(b)(2)(B).

• Any documents that reflect the special master’s rulings, including orders, privilege logs, or other records, should be preserved and filed under seal with the Court but made available to both parties. Fed. R. Civ. P. 53(b)(2)(C).

• The parties should have 10 days, after receiving notice of a final order or decision, to seek Court review, instead of the typical 21-day period. Fed. R. Civ. P. 53(b)(2)(D), (f)(2). As Rule 53 provides, the Court should review both legal and factual issues de novo, see Fed. R. Civ. P. 53(f)(3); because the central disputed issues concern privilege, an issue that courts traditionally decide, there is no need to apply any deferential standard of review to the special master’s determinations. The Court should also review procedural issues de novo for the same reason, contrary to the default rule provided by Rule 53(f)(5).

• The Court should impose a deadline for the special master’s review, with final decisions on all disputed documents to be made by September 30, 2022. As discussed above, the volume of material at issue is not large.

Conclusion

For the foregoing reasons, the Court should deny Plaintiff’s Motion for Judicial Oversight (D.E. 1) and decline to require the return of seized items, enjoin further review of seized materials, or appoint a special master.

Respectfully submitted,

/s Juan Antonio Gonzalez
JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY
Florida Bar No. 897388
99 NE 4th Street, 8th Floor
Miami, FL 33132
Tel: 305-961-9001
Email: [email protected]

/s Jay I. Bratt
JAY I. BRATT
CHIEF
Counterintelligence and Export Control Section
National Security Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Illinois Bar No. 6187361
Tel: 202-233-0986
Email: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused the attached document to be electronically transmitted to the Clerk’s Office using the CM/ECF system for filing and transmittal of a notice of electronic filing.

/s Juan Antonio Gonzalez
JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY
Florida Bar No. 897388
99 NE 4th Street, 8th Floor
Miami, FL 33132
Tel: 305-961-9001
Email: [email protected]

Attachment A

NATIONAL ARCHIVES
Archivist of the United States

DAVID S. FERRIERO
T: 202.357.5900
F: 202.357.5901
[email protected]
National Archives and Records Administration
700 Pennsylvania Avenue, NW
Washington, DC 20408
http://www.archives.gov

February 18, 2022

The Honorable Carolyn B. Maloney
Chairwoman
Committee on Oversight and Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, DC 20514

Dear Madam Chairwoman:

I write in response to your letter of February 9, 2022, in which you asked a number of questions relating to "the 15 boxes of presidential records that the National Archives and Records Administration (NARA) recently recovered from former President Trump's Mar-a-Lago residence." Please see our responses to each of your questions:

1. Did NARA ask the representatives of former President Trump about missing records prior to the 15 boxes being identified? If so, what information was provided in response?

Answer: NARA had ongoing communications with the representatives of former President Trump throughout 2021, which resulted in the transfer of 15 boxes to NARA in January 2022.

2. Has NARA conducted an inventory of the contents of the boxes recovered from Mar-a-Lago?

Answer: NARA is in the process of inventorying the contents of the boxes.

3. Please provide a detailed description of the contents of the recovered boxes, including any inventory prepared by NARA of the contents of the boxes. If an inventory has not yet been completed, please provide an estimate of when such an inventory will be completed.

Answer: NARA staff are in the process of inventorying the contents of the boxes, which we expect to complete by February 25. Because the records in the boxes are subject to the Presidential Records Act (PRA), any request for information regarding the content of the records will need to be made in accordance with section 2205(2)(() of the PRA.

4. Are the contents of the boxes of records recovered by NARA undergoing a review to determine if they contain classified information? If so, who is conducting that review and has any classified information been found?

Answer: NARA has identified items marked as classified national security information within the boxes.

5. Is NARA aware of any additional presidential records from the Trump Administration that may be missing or not yet in NARA's possession?

Answer: NARA has identified certain social media records that were not captured and preserved by the Trump Administration. NARA has also learned that some White House staff conducted official business using non-official electronic messaging accounts that were not copied or forwarded into their official electronic messaging accounts, as required by section 2209 of the PRA. NARA has already obtained or is in the process of obtaining some of those records.

6. What efforts has NARA taken, and is NARA taking, to ensure that any additional records that have not been turned over to NARA are not lost or destroyed?

Answer: NARA has asked the representatives of former President Trump to continue to search for any additional Presidential records that have not been transferred to NARA, as required by the Presidential Records Act.

7. Has the Archivist notified the Attorney General that former President Trump removed presidential records from the White House? If not, why not?

Answer: Because NARA identified classified information in the boxes, NARA staff has been in communication with the Department of Justice.

8. Is NARA aware of presidential records that President Trump destroyed or attempted to destroy without the approval of NARA? If so, please provide a detailed description of such records, the actions taken by President Trump to destroy or attempt to destroy them, and any actions NARA has taken to recover or preserve these documents.

Answer: In June 2018, NARA learned from a press report in Politico that textual Presidential records were being torn up by former President Trump and that White House staff were attempting to tape them back together. NARA sent a letter to the Deputy Counsel to the President asking for information about the extent of the problem and how it is being addressed. The White House Counsel's Office indicated that they would address the matter. After the end of the Trump Administration, NARA learned that additional paper records that had been torn up by former President Trump were included in the records transferred to us. Although White House staff during the Trump Administration recovered and taped together some of the torn-up records, a number of other torn-up records that were transferred had not been reconstructed by the White House.

Sincerely,

DAVID S. FERRIERO
Archivist of the United States

cc: The Honorable James Comer, Ranking Member

Attachment B

NATIONAL ARCHIVES
Archivist of the United States

DAVID S. FERRIERO
T: 202.357.5900
F: 202.357.5901
[email protected]
National Archives and Records Administration
700 Pennsylvania Avenue, NW
Washington, DC 20408
http://www.archives.gov

May 10, 2022

Evan Corcoran
Silverman Thompson
400 East Pratt Street
Suite 900
Baltimore, MD 21202
By Email

Dear Mr. Corcoran:

I write in response to your letters of April 29, 2022, and May 1, 2022, requesting that the National Archives and Records Administration (NARA) further delay the disclosure to the Federal Bureau of Investigation (FBI) of the records that were the subject of our April 12, 2022 notification to an authorized representative of former President Trump.

As you are no doubt aware, NARA had ongoing communications with the former President's representatives throughout 2021 about what appeared to be missing Presidential records, which resulted in the transfer of 15 boxes of records to NARA in January 2022. In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel's Office -- affirming a request from the Department of Justice supported by an FBI letterhead memorandum -- formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes.

Although the Presidential Records Act (PRA) generally restricts access to Presidential records in NARA's custody for several years after the conclusion of a President's tenure in office, the statute further provides that, "subject to any rights, defenses, or privileges which the United States or any agency or person may invoke," such records "shall be made available ... to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President's office and that is not otherwise available." 44 U.S.C. § 2205(2)(B). Those conditions are satisfied here. As the Department of Justice's National Security Division explained to you on April 29, 2022:

There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch.

We advised you in writing on April 12 that, "in light of the urgency of this request," we planned to "provid[e] access to the FBI next week," i.e., the week of April 18. See Exec. Order No. 13,489, § 2(b), 74 Fed. Reg. 4,669 (Jan. 21, 2009) (providing a 30-day default before disclosure but authorizing the Archivist to specify "a shorter period of time" if "required under the circumstances"); accord 36 C.F.R. § 1270.44(g) ("The Archivist may adjust any time period or deadline under this subpart, as appropriate, to accommodate records requested under this section."). In response to a request from another representative of the former President, the White House Counsel's Office acquiesced in an extension of the production date to April 29, and so advised NARA. In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.

It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews. Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes "in order to ascertain whether any specific document is subject to privilege," and then to consult with the former President "so that he may personally make any decision to assert a claim of constitutionally based privilege." Your April 29 letter further states that in the event we do not afford you further time to review the records before NARA discloses them in response to the request, we should consider your letter to be "a protective assertion of executive privilege made by counsel for the former President."

The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President's purported "protective assertion of executive privilege." See 36 C.F.R. § 1270.44(f)(3). Accordingly, I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my "determination as to whether to honor the former President's claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege." Exec. Order No. 13,489, § 4(a).

The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where "such records contain information that is needed for the conduct of current business of the incumbent President's office and that is not otherwise available." 44 U.S.C. § 2205(2)(B).

To the contrary, the Supreme Court's decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege "against the very Executive Branch in whose name the privilege is invoked." Id. at 447-48. In Nixon v. GSA, the Court rejected former President Nixon's argument that a statute requiring that Presidential records from his term in office be maintained in the custody of, and screened by, NARA's predecessor agency -- a "very limited intrusion by personnel in the Executive Branch sensitive to executive concerns" -- would "impermissibly interfere with candid communication of views by Presidential advisers." Id. at 451 ; see also id. at 455 (rejecting the claim). The Court specifically noted that an "incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations." Id. at 452; see also id. at 441-46 (emphasizing, in the course of rejecting a separation-of-powers challenge to a provision of a federal statute governing the disposition of former President Nixon 's tape recordings, papers, and other historical materials "within the Executive Branch," where the "employees of that branch [would] have access to the materials only 'for lawful Government use,"' that "[t]he Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch"; and concluding that "nothing contained in the Act renders it unduly disruptive of the Executive Branch").

It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to "conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps." These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are "sensitive to executive concerns." Id. at 451. And on the other side of the balance, there is no reason to believe such reviews could "adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decision-making." Id. at 450. To the contrary: Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to "receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends." Id. at 449.

Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a "protective assertion of executive privilege," which the Assistant Attorney General informs me has never been made outside the context of a congressional demand for information from the Executive Branch. Even assuming for the sake of argument that a former President may under some circumstances make such a "protective assertion of executive privilege" to preclude the Archivist from complying with a disclosure otherwise prescribed by 44 U.S.C. § 2205(2), there is no predicate for such a "protective" assertion here, where there is no realistic basis that the requested delay would result in a viable assertion of executive privilege against the incumbent President that would prevent disclosure of records for the purposes of the reviews described above. Accordingly, the only end that would be served by upholding the "protective" assertion here would be to delay those very important reviews.

I have therefore decided not to honor the former President's "protective" claim of privilege. See Exec. Order No. 13,489, § 4(a); see also 36 C.F.R. 1270.44(f)(3) (providing that unless the incumbent President "uphold[s]" the claim asserted by the former President, "the Archivist discloses the Presidential record"). For the same reasons, I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.

Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President's designated representatives can review the records, subject to obtaining the appropriate level of security clearance. Please contact my General Counsel, Gary M. Stern, if you would like to discuss the details of such a review, such as you proposed in your letter of May 5, 2022, particularly with respect to any unclassified materials.

Sincerely,

DEBRA STEIDEL WALL
Acting Archivist of the United States

Attachment C

AO 110 (Rev. 06/09) Subpoena to Testify Before a Grand Jury

UNITED STATES DISTRICT COURT
for the
District of Columbia

SUBPOENA TO TESTIFY BEFORE A GRAND JURY

To: Custodian of Records
The Office of Donald J. Trump
1100 South Ocean Blvd.
Palm Beach, FL 33480

YOU ARE COMMANDED to appear in this United States district court at the time, date, and place shown below to testify before the court's grand jury. When you arrive, you must remain at the court until the judge or a court officer allows you to leave.

Place: U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
U.S. Courthouse, 3rd Floor Grand Jury #21-09
333 Constitution Avenue, N.W.
Washington, D.C. 20001

Date and Time:
May 24, 2022
9:00 a.m.

You must also bring with you the following documents, electronically stored information, or objects:

Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings, including but not limited to the following: Top Secret, Secret, Confidential, Top Secret/SI-G/NOFORN/ORCON, Top Secret/SI-G/NOFORN, Top Secret/HCS- O/NOFORN/ORCON, Top Secret/HCS-O/NOFORN, Top Secret/HCS-P/NOFORN/ORCON, Top Secret/HCS-P/NOFORN, Top Secret/TK/NOFORN/ORCON, Top Secret/TK/NOFORN, 1- Secret/NOFORN, Confidential/NOFORN, TS, TS/SAP, TS/SI-G/NF/OC, TS/SI-G/NF, TS/HCS- O/NF/OC, TS/HCS-0/NF, TS/HCS-P/NF/OC, TS/HCS-P/NF, TS/HCS-P/SI-G, TS/HCS-P/SI/TK, TS/TK/NF/OC, TS/TK/NF, S/NF, S/FRD, S/NATO, S/SI, C, and C/NF.

Date: May 11, 2022

The name, address, telephone number and email of the prosecutor who requests this subpoena are:

Jay I. Bratt
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
[email protected]

Subpoena #GJ2022042790054
CO 293 (Rev. 8/91) Subpoena to Testify Before Grand Jury

RETURN OF SERVICE

[omitted here]

Attachment D

U.S. Department of Justice
National Security Division
Counterintelligence and Export Control Section
Washington, D.C. 20530

May 11, 2022

M. Evan Corcoran, Esq.
Silverman Thompson
400 East Pratt Street - Suite 900
Baltimore, Maryland 21202

Re: Grand Jury Subpoena

Dear Mr. Corcoran:

Thank you for agreeing to accept service of the grand jury subpoena on behalf of the custodian of records for the Office of Donald J. Trump.

As we discussed, in lieu of personally appearing on May 24, the custodian may comply with the subpoena by providing any responsive documents to the FBI at the place of their location. The FBI will ensure that the agents retrieving the documents have the proper clearances and will handle the materials in the appropriate manner. The custodian would also provide a sworn certification that the documents represent all responsive records. If there are no responsive documents, the custodian would provide a sworn certification to that effect.

Thank you again for your cooperation.

Very truly yours,

Jay I. Bratt
Chief
Counterintelligence and Export Control Section
[DELETE]
jav.bratt2@,usdoj.gov

Attachment E

CERTIFICATION

I hereby certify as follows:

1. I have been designated to serve as Custodian of Records for The Office of Donald J. Trump, for purposes of the testimony and documents subject to subpoena #GJ20222042790054.

2. I understand that this certification is made to comply with the subpoena, in lieu of a personal appearance and testimony.

3. Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge.

Dated: June 3, 2022

[DELETE]

[DELETE]

Attachment F



_______________

Notes:

1 Plaintiff also sought a more detailed receipt for the property seized during the August 8,  2022 execution of the search warrant. D.E. 1 at 19-21; see generally D.E. 28. The Court ordered  the government to file under seal “[a] more detailed Receipt for Property specifying all property seized pursuant to the search warrant.” D.E. 29 at 2. The government filed today under seal, in accordance with the Court’s order, the more detailed receipt. Although the receipt of property already provided to Plaintiff at the time of the search, see In Re Sealed Search Warrant, No. 22-MJ-8332 (S.D. Fla.) (hereinafter, “MJ Docket”), D.E. 17 at 5-7, is sufficient under Fed. R. Crim. P. 41, the government is prepared, given the extraordinary  circumstances, to unseal the more detailed receipt and provide it immediately to Plaintiff.
 
2 The former President disclosed this subpoena and a subpoena for video footage at the Premises in his filings to this Court. See, e.g., D.E. 1 at 5-6. Thereafter, on August 29, 2022, Chief Judge Howell in the District of Columbia authorized the government to disclose to this Court these grand jury subpoenas and material discussed herein.
 
3 Here and in other parts of this public filing, the government refers to evidence developed in its investigation in order to inform the Court of the relevant facts. Of necessity, however, the government cannot publicly describe the sources of its evidence, particularly while the investigation remains ongoing. As Judge Reinhart concluded, revealing this type of information could “impede the ongoing investigation through obstruction of justice and witness intimidation or retaliation.” MJ Docket D.E. 80 at 9.
 
4 According to Plaintiff’s filing, the former President had determined that the search for the materials should be conducted. D.E. 1 at 5.
 
5 Plaintiff states that “[t]here is no criminal enforcement mechanism or penalty” in the Presidential Records Act, and then suggests that DOJ may have “recognize[d] that deficiency, and then decide[d] to re-categorize this case as relating to national security materials[ ]simply to manufacture a basis to seek a search warrant” and may have “mischaracterize[d] the types of documents it sought.” D.E. 1 at 12. These accusations are belied by the statutes cited in the government’s search warrant, which make clear that this investigation is not simply about efforts to recover improperly retained Presidential records. Moreover, 18 U.S.C. § 2071 criminalizes the concealment or removal of government records, including Presidential records.
 
6 Plaintiff repeatedly claims that his passports were outside the scope of the warrant and improperly seized, and that the government, in returning them, has admitted as much. See  D.E. 1 at 2 & n.2; D.E. 28 at 3, 8, 9. These claims are incorrect. Consistent with Attachment  B to the search warrant, the government seized the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included two official passports, one of which was expired, and one personal passport, which was expired. The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information; nonetheless, the government decided to return those passports in its discretion.
 
7 Pre-October 1, 1981 Fifth Circuit decisions are binding precedent in this Circuit. Bonner v.  City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
 
8 Plaintiff’s motion cites Federal Rule of Civil Procedure 26(b)(5) and (c)(1) and this Court’s Local Rule 26.1(g) in support of this request. D.E. 1 at 15. These provisions relate to privilege claims during pre-trial discovery in civil cases, not privilege claims regarding materials seized pursuant to a search warrant. The former President’s request is more properly construed as a request for a preliminary injunction under Federal Rule of Civil Procedure 65.
 
9 Exhibit A to Decl. of Todd Harrison in Support of an Order to Show Cause, Cohen v. United States, No. 1:18-MJ-3161, D.E. 7-1 (S.D.N.Y. Apr. 13, 2018).
 
10 See Mem. of Law in Support of Michael D. Cohen’s Order to Show Cause and a Temporary Restraining Order, Cohen, No. 1:18-MJ-3161, D.E. 6 (S.D.N.Y. Apr. 13, 2018). Although this filing was docketed on April 13, 2018, the text of the motion is dated April 12, 2018, id. at 28, and a declaration from Cohen’s attorney asserts that counsel for Cohen notified the U.S. Attorney’s Office on April 12, 2018 that it intended to file the application, see Harrison Decl., Cohen, No. 1:18-MJ-3161, D.E. 7 at 7 (S.D.N.Y. Apr. 13, 2018).
 
11 See Letter Motion, Cohen v. United States, No. 1:18-MJ-3161, D.E. 8 (S.D.N.Y. Apr. 15, 2018).
 
12 Plaintiff’s motion does not purport to include any assertion of executive privilege by the former President; instead, it refers (at 15) to “potentially privileged materials” and appears to suggest that a special master should determine in the first instance whether the privilege applies. Plaintiff's assertion that because the documents “were created during his term as President,” they are “‘presumptively privileged’ until proven otherwise,” D.E. 1 at 15 (quoting United States v. Nixon, 418 U.S. 683, 713 (1974)), is therefore incorrect. That presumption arises only “[u]pon receiving a claim of privilege from the Chief Executive.”  United States v. Nixon, 418 U.S. at 713. Additionally, a former President can invoke executive privilege only with respect to communications made “‘in performance of [the President's] responsibilities.’” Nixon v. GSA, 433 U.S. at 449 (quoting United States v. Nixon, 418 U.S. at  711).
 
13 At the time Nixon v. GSA was litigated, the National Archives was a part of the General Services Administration. In 1985, Congress created the National Archives and Records Administration as a separate agency.
 
14 Plaintiff also cites Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) for the proposition that he has “virtually complete control” over Presidential records during his term of office, see  D.E. 1 at 12, but Armstrong is wholly inapposite. The court in that case was discussing control of Presidential records by a sitting President, not a former President. See id. As the sources relied upon by Armstrong make clear, that control terminates at the end of the  President’s time in office. Id. (citing H.R. Rep. No. 95-1487, 95th Cong., 2d Sess. 2 (1978), reprinted in U.S.C.C.A.N. 5732, 5733); see id. at 291 (explaining that the PRA provides for “presidential control of records creation, management, and disposal during the President’s term of office” and “public ownership and access to the records after the expiration of the President’s term.”) (emphases added).
 
15 Of course, as DOJ and other Executive Branch personnel conduct their review of the seized materials, they will continue to be “sensitive to executive concerns” regarding confidentiality.  Nixon v. GSA, 433 U.S. at 452.
 
16 Notably, however, the former President never interposed any executive privilege objection to returning the set of classified documents that was provided by his custodian of records on June 3.
 
17 The former President also cites to a Justice Manual provision, “9-13.420 § F,” for the  proposition that prosecutors must consider “[w]ho will conduct the review, i.e., a privilege team, a judicial officer, or a special master.” He fails to mention that this provision is under a provision that is specific to searches of attorney offices; Section 9-13.420 is titled “Searches  of Premises of Subject Attorneys.” This provision reinforces that searches of attorney offices are uniquely fraught and may require different procedures than the searches of non-attorney premises such as this one.