EXCERPTS FROM 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
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….
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….
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 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….
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….
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….These communications ultimately resulted in the provision of fifteen boxes …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. …
“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.”… Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.”… 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….
DOJ sought access to the Fifteen Boxes in part “so that the FBI and others in the Intelligence Community could examine them.” … a representative of the former President requested an extension of the production date to April 29. See id….
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…. 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….
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. … 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.”…
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….
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….
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…. 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. …
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. …
on August 5, 2022, the government applied to Magistrate Judge Reinhart for a search and seizure warrant… 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…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….
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….
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…. 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….
The privilege review team identified only a limited subset of potentially attorney-client privileged documents….
Plaintiff asks for a special master and related relief in anticipation of moving for the return of property under Criminal Rule 41(g)….
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.”…
Plaintiff has no property interest in any Presidential records (including classified records) seized from the Premises….44 U.S.C. § 2202…
Neither of Plaintiff’s filings addresses or even cites that statutory provision. …
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….
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.”… 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)… Evidence of commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation….
they were commingled with documents bearing classification markings that were indisputably within the scope of the search warrant….
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….
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….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.”… a party’s failure to act with speed or urgency in moving for a preliminary injunction necessarily undermines a finding of irreparable harm.”… Typically, parties who seek the appointment of a special master following the execution of a search warrant make such requests immediately. … 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….
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.” …
Appointment of a special master to review potential privilege claims… 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….
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.”… vital Executive Branch needs far outweigh any limited burden on the general interests served by the executive privilege…
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…. 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….
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….
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.”…
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….
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,”…
“[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”…
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…. 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….
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…. The government’s seizure of these records through use of a search warrant is a direct result of Plaintiff’s own conduct…
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….
executive privilege exists not “for the benefit of the President as an individual, but for the benefit of the Republic,”…
“[I]t is well-established that filter teams—also called ‘taint teams’—are routinely employed to conduct privilege reviews.”… 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…. The former President analogizes searches of law offices to the present search… searches of law offices and the instant search do not at all involve similar privilege concerns….
courts have cited the complexities posed when materials are seized from attorneys involving multiple clients…. ‘[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’… 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.”)… “under certain exceptional circumstances, the appointment of a special master to review materials seized from an attorney may be appropriate. Those circumstances may exist where the search involves the files of a criminal defense attorney with cases adverse to the United States Attorney’s Office . . . .”)… “responsiveness and privilege issues raised” in the search of a law firm office as “exceptional”).
The attorney-client privilege issues in this case present none of the complexities associated with a search of a law firm…. Moreover, as noted above, the volume of documents is small, and the government’s filter team has already completed its review of them. …
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….
• 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…. 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….
• Any documents that reflect the special master’s rulings, including orders, privilege logs, or other records, should be preserved and filed under seal…
• 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….
• final decisions on all disputed documents to be made by September 30, 2022….
the Court should deny Plaintiff’s Motion for Judicial Oversight…
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NATIONAL ARCHIVES
Archivist of the United States
DAVID S. FERRIERO…
The Honorable Carolyn B. Maloney
Chairwoman
Committee on Oversight and Reform
U.S. House of Representatives…
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…
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….
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….
***
Notes:
1 Plaintiff also sought a more detailed receipt for the property seized during the August 8, 2022 execution of the search warrant. … 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…
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.”…
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….
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….
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)….
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…. the PRA provides for “presidential control of records creation, management, and disposal during the President’s term of office”…
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.