Trump lashes out at Gov. Doug Ducey following certification

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Reply in Support of Its Motion to Stay Pending Appeal
by Juan Antonio Gonzalez, United States Attorney
Donald J. Trump, Plaintiff, v. United States of America, Defendant.
September 13, 2022

THE UNITED STATES’ REPLY IN SUPPORT OF ITS MOTION TO STAY PENDING APPEAL
DONALD J. TRUMP, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
September 13, 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.
________________________________/

THE UNITED STATES’ REPLY IN SUPPORT OF ITS MOTION TO STAY PENDING APPEAL

The United States’ motion for a stay pending appeal of this Court’s September 5, 2022 Order, Docket Entries (“D.E.”) 69, 64, seeks limited but critical relief. The government seeks a stay only as to a discrete set of just over 100 records marked as classified—that is, records that were specifically sought by a prior grand jury subpoena, whose unauthorized retention may constitute a crime, 18 U.S.C. § 793, and with markings signifying that their unauthorized disclosure “reasonably could be expected to result in damage to the national security,” including “exceptionally grave damage,” Exec. Order 13526 §§ 1.1(4), 1.2(1) (Dec. 29, 2009).1

The government’s stay motion demonstrates that the government is likely to succeed on the merits because Plaintiff cannot plausibly establish any property interest in or privilege claim as to the seized records marked as classified, that the government and the public are irreparably harmed while the Court’s Order as to those records remains in effect, and that a partial stay would impose no cognizable harm on Plaintiff. Plaintiff’s Response, D.E. 84, largely ignores those showings. Instead, Plaintiff principally seeks to raise questions about the classification status of the records and their categorization under the Presidential Records Act (“PRA”). But Plaintiff does not actually assert—much less provide any evidence—that any of the seized records bearing classification markings have been declassified. More importantly, the issues Plaintiff attempts to raise are ultimately irrelevant. Even if Plaintiff had declassified these records, and even if he somehow had categorized them as his “personal” records for purposes of the PRA—neither of which has been shown—nothing in the PRA or any other source of law establishes a plausible claim of privilege or any other justification for an injunction restricting the government’s review and use of records at the center of an ongoing criminal and national security investigation. And nothing in Plaintiff’s Response rebuts the compelling public interest in granting the limited stay the government seeks. DISCUSSION I. The Government Is Likely to Succeed on the Merits First, Plaintiff has failed to rebut the government’s showing that the Court lacks equitable jurisdiction as to seized records bearing classification markings because Plaintiff categorically has no “property” interest in those records and no “need for” their return. D.E. 69 at 6-7 (citing Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975)). Plaintiff instead references other seized records that contain personal information or could be subject to attorney-client privilege, none of which are at issue in this stay motion. D.E. 84 at 7-8. As to the records marked as classified, Plaintiff asserts that the government has not “proven” their classification status. Id. at 8. But even if Plaintiff had declassified any of these records while he was President—a proposition that Plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence—any record bearing classification markings was necessarily created by the government and, therefore, is not Plaintiff’s personal property. Furthermore, although Plaintiff observes that the PRA generally entitles him to access Presidential records created during his tenure, see id.; 44 U.S.C. § 2205(1), (3) (records “in the custody of the Archivist” “shall be available” to a former President or his designee), the PRA does not establish that a former President has any property right in Presidential records. To the contrary, it makes clear that “[t]he United States” has “complete ownership, possession, and control” of them. 44 U.S.C. § 2202. Plaintiff thus has no plausible property interest that would justify compelling this discrete set of records to be returned to him. The government is thus likely to succeed on jurisdictional grounds alone.

Second, Plaintiff has no viable claim of privilege as to the records bearing classification markings. He does not contest that he lacks a viable personal attorney-client privilege claim with regard to records marked as classified, because such records would not contain communications between Plaintiff and his personal attorneys. See D.E. 69 at 8. And Plaintiff offers no response to the government’s multiple arguments demonstrating that he cannot plausibly assert executive privilege to prevent the Executive Branch itself from reviewing records that Executive Branch officials previously marked as classified. The government explained that Nixon v. Administrator of General Services, 433 U.S. 425 (1977) (“Nixon v. GSA”), precludes a successful assertion of executive privilege against the Executive Branch; that any assertion here would in any event be overcome under United States v. Nixon, 418 U.S. 683 (1974), given the government’s compelling need for these records, the unauthorized retention of which is the very subject matter of the government’s criminal investigation; that any claim of privilege over these records is further foreclosed because the Constitution vests the incumbent President with the authority to control access to classified information; and that Plaintiff failed to raise any purported executive privilege claims when responding to a grand jury subpoena for all documents in his possession bearing classification markings. D.E. 69 at 8-12. Plaintiff does not address any of those arguments.

Instead, Plaintiff notes only that this Court “expressed skepticism” about the government’s executive privilege arguments in its prior Order. D.E. 84 at 10. But the Court’s observations focused on whether a former President is entirely foreclosed from asserting executive privilege against the Executive Branch. D.E. 64 at 17. The Court did not address the government’s arguments specifically establishing that no plausible assertion of privilege could bar the review by the Executive Branch of the discrete set of seized records bearing classification markings in the context of an ongoing criminal and national security investigation. In any event, it is Plaintiff—not the Court and not a special master—who would need to make an assertion of executive privilege and supply reasons supporting that assertion. He has provided none.

Plaintiff’s attempts to change the subject by holding out the possibility that he could have declassified some of the seized records and/or that he could have designated them as “personal” records, D.E. 84 at 11-15, fare no better. As already noted, Plaintiff has now filed multiple lengthy submissions with the Court that stop short of asserting that he in fact took any of these actions with respect to any of the seized records, including those at issue in the stay motion. In light of the classification markings, official cover sheets, and other indicia of classification attendant to these materials, see, e.g., D.E. 48-1, Attachment F, such possibilities should not be given weight absent Plaintiff’s putting forward competent evidence.

In any event, even if Plaintiff had declassified any of the approximately 100 seized records bearing classification markings while he was still in office, the government’s “demonstrated, specific need” for those records, United States v. Nixon, 418 U.S. at 713, would easily overcome any asserted claim of privilege. For obvious reasons, the Intelligence Community (“IC”) would have a compelling need to understand which formerly-classified records have now been declassified, why and how they were declassified, and the impact of any such declassification, including on the IC’s protection of its sources and methods and on the classification status of related records or information. The Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”) would also have a compelling need to review any purportedly declassified records as part of the government’s investigation into the adequacy of the response to the May 2022 grand jury subpoena, which sought “[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.” D.E. 48-1 Attachment C (emphasis added). Furthermore, the government would need to consider the records’ prior declassification as relates to the application of 18 U.S.C. § 793. See D.E. 69 at 14 (explaining the relevance of classification status in such matters).

Plaintiff’s suggestion that he “may have categorized certain of the seized materials as personal [records] during his presidency” pursuant to the PRA, D.E. 84 at 15, if true, would only supply another reason that he cannot assert executive privilege with regard to those records. If Plaintiff truly means to suggest that, while President, he chose to categorize records with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes of the PRA, then he cannot assert that the very same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of his official duties.” Nixon v. GSA, 433 U.S. at 447, 456; see 44 U.S.C. § 2201(3) (defining “personal records” as records “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”). In any event, whether Plaintiff declared documents with classification markings to be his “personal” records for purposes of the PRA has no bearing on the government’s compelling need to review them, both for national security purposes and as part of its investigation into the potentially unlawful retention of national defense information.2

More generally, Plaintiff’s Response disregards this Court’s acknowledgement of its “limited power in this domain” involving the exercise of equitable jurisdiction in connection with an ongoing criminal investigation. D.E. 64 at 8. The Court ordered the appointment of a special master solely to “manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” Id. at 23. The Court did not—and could not—appoint a special master to exercise roving “supervisory authority” over the government’s ongoing criminal investigation, contra D.E. 84 at 4, or to adjudicate matters ultimately irrelevant to Plaintiff’s potential privilege claims, such as whether Plaintiff might have declassified seized documents that bear classification markings or whether Plaintiff might have designated those documents as his “personal” records for purposes of the PRA. Because Plaintiff cannot plausibly assert executive privilege (or attorney-client privilege, see supra p. 3) as to any seized records bearing classification markings, the Court should not enjoin the government’s use of those records or order those records reviewed by a special master pending the government’s appeal.

II. The Government and the Public Will Suffer Irreparable Harm Absent a Stay

The Court’s injunction against the government’s review of seized records bearing classification markings for purposes of its criminal investigation has caused and will continue to cause irreparable harm. As the government has explained, the IC’s intelligence classification review and national security assessment—which the Court sought to allow to continue in recognition of the vital interests at stake—are closely linked to its criminal investigation, and therefore cannot proceed effectively while the injunction remains in place. D.E. 69 at 12-16; see generally D.E. 69-1 (Declaration of Alan E. Kohler, Jr.). Plaintiff suggests various potential methods for drawing a distinction, such as by allowing the government to use the records for “forward looking” assessments regarding the protection of “vital national interests” but not “backwards looking” inquiries into violations of law, D.E. 84 at 15-16, or by distinguishing between the government’s subjective “purpose” for reviewing or using the records, id. at 17. Plaintiff thus implicitly acknowledges that the government and the public would be irreparably harmed by an injunction that bars the effective conduct of a classification review and national security assessment. But as the government has demonstrated, its “forward looking” mission of protecting national security necessarily requires it to understand the extent to which classified information may have recently been compromised. D.E. 69 at 14-15. And to the extent the Court’s injunction were to turn on the subjective “purpose” motivating individual government personnel, such an injunction could be subject to serious challenge for failure to “state its terms specifically” and to “describe in reasonable detail . . . the act or acts restrained.” Fed. R. Civ. P. 65(d)(1). In attempting to draw what are ultimately unworkable distinctions, Plaintiff only underscores that the government’s national security and criminal investigative missions are overlapping and mutually reinforcing.

Furthermore, even if the IC, which includes the FBI, were permitted to resume its classification review and national security assessment in some limited manner, Plaintiff fails to address DOJ’s and the FBI’s inability, under the Court’s injunction, to use the seized records to investigate whether or to what extent the seized records were accessed by unauthorized individuals or whether other classified records remain missing. D.E. 69 at 14- 17. Those are criminal investigative functions, and the government is irreparably harmed while it is enjoined from using the seized records bearing classification markings for those purposes.

For that and other reasons, the delay of the government’s criminal investigation constitutes its own irreparable harm. The government and the public unquestionably have an interest in the timely enforcement of criminal laws, particularly those involving the protection of highly sensitive information, and especially where, as here, there may have been efforts to obstruct its investigation. The government’s ability to perform other investigative tasks that do not require its review or use of the records marked as classified does not “refute[]” this irreparable harm. D.E. 84 at 18. These records are at the core of the government’s investigation, and the government’s inability to review and use them significantly constrains its investigation. The compelled disclosure of records marked as classified to a special master further harms the Executive Branch’s interest in limiting access to such materials absent any valid purpose served by their review. See 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).

Finally, Plaintiff’s submissions to the Court indicate that Plaintiff contemplates a prolonged 90-day review period by the special master. Thus, even assuming that a special master begins that review immediately, the review would not be complete until December under Plaintiff’s proposed timeline. All the while, the Intelligence Community would (at best) be limited in its ability to address and fully mitigate any national security risks presented by the storage and handling of the classified records at issue here, and DOJ and the FBI would be unable to perform critical parts of their criminal investigatory functions.

III. Plaintiff Has Failed to Establish Any Cognizable Harm

Plaintiff has not described any cognizable harm that he would incur from a partial stay. He states only that “enhanced vigilance” in this investigation will serve a public interest in fairness and transparency, going so far as to suggest that this investigation “must be conducted in public view.” D.E. 84 at 19-20. But the public is best served by evenhanded adherence to established principles of civil and criminal procedure, regardless of the identity of the parties or the degree of public attention. Here, the seized records bearing classification markings are the government’s own documents and are evidence obtained pursuant to a duly authorized search warrant in the course of a criminal investigation. The government and the public have a compelling interest in that investigation continuing. And Plaintiff is not entitled to restrict the government’s investigation pending a review of these records for privilege claims that cannot prevail.

Conclusion

The Court should stay its September 5, 2022 Order pending appeal to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings and (2) requires the government to disclose those classified records to 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]

MATTHEW G. OLSEN
Assistant Attorney General
National Security Division
/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 on September 13, 2022, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF.

s/ Juan Antonio Gonzalez
Juan Antonio Gonzalez
United States Attorney

___________

Notes:

1 Plaintiff has characterized the government’s criminal investigation as a “document storage dispute” or an “overdue library book scenario.” D.E. 84 at 1; 9/1/22 Hrg. Tr. at 31:20-21. In doing so, Plaintiff has not addressed the potential harms that could result from mishandling classified information or the strict requirements imposed by law for handling such materials. See 32 C.F.R. § 2001.43 (describing detailed requirements for the storage of TOP SECRET information, including approved vaults, alarm systems, and construction specifications).

2 Plaintiff’s characterization of the discretion the PRA provides the President to categorize records as “Presidential” or “personal,” D.E. 84 at 14-15 (citing Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012)), is thus irrelevant here. In any event, the district court decision on which Plaintiff relies did not concern classified records and does not support his assertion that a court must accept a former President’s claim that records that indisputably qualify as Presidential records under the PRA are instead personal records. Instead, the court in Judicial Watch concluded that it could not compel the National Archives and Records Administration to revisit a President’s decision about such a categorization. 845 F. Supp. 2d at 300-301. More fundamentally, the district court’s analysis in Judicial Watch has no bearing on the application of criminal law regarding unauthorized retention of national defense information, unauthorized removal of government documents, or obstruction of justice. 18 U.S.C. §§ 793, 2071, 1519.

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'Outrageous And Stupid': Legal Experts Excoriate Trump Judge's New Ruling
by Lawrence O'Donnell
MSNBC
Sep 15, 2022

Legal experts Neal Katyal, Andrew Weissmann and Bradley Moss join MSNBC’s Lawrence O’Donnell to discuss why a Trump-appointed judge’s ruling that classified docs seized from Donald Trump’s Florida home are not classified is “the end of the rule of law.”



Transcript

[Lawrence O'Donnell] ANDREW WEISSMANN, LET ME BEGIN WITH YOU. I'M GOING TO GIVE EACH OF YOU JUST AN OPEN MIC TO GIVE US WHATEVER YOU ARE THINKING ABOUT WHAT YOU HAVE READ TONIGHT FROM THIS JUDGE.

>> [Andrew Weissmann] WELL, LAWRENCE, THERE IS SO MUCH TO CHOOSE FROM. I AM CERTAINLY GOING TO LEAVE A LOT ON THE TABLE FOR NEAL AND BRAD, BECAUSE THERE ARE SO MANY OUTRAGEOUS AND STUPID, FRANKLY, PIECES OF THIS DECISION. IT IS REMARKABLE BECAUSE YOU NEVER THOUGHT THAT [THERE COULD BE] SOMETHING WORSE THAN HER LAST DECISION, AND THIS ACTUALLY TOPPED IT. BUT LET ME FOCUS ON SOMETHING I THOUGHT WAS PARTICULARLY IMPORTANT, AND THEN ALSO GO TO SOMETHING THAT IS MAYBE POSITIVE. SO, ONE OF THE THINGS THAT I THOUGHT WAS PARTICULARLY EGREGIOUS IS THAT SHE COMES RIGHT OUT AND SAYS, AT THE END OF HER DECISION, THAT SHE IS GIVING EXTRA WEIGHT TO TRUMP BECAUSE HE WAS THE PRESIDENT. SHE JUST COMES RIGHT OUT AND SAYS IT. IF ANYONE WANTS TO SEE THE END OF THE RULE OF LAW, IT IS, JUST READ THE DECISION. IF JOHN LOCKE FAMOUSLY SAID, "WHERE LAW ENDS, TYRANNY BEGINS," YOU READ THIS DECISION AND WHAT SHE SAID, AND SHE IS ADMITTING THAT A POSITION THAT THE PERSON HELD IS GOING TO CARRY EXTRA WEIGHT IN TERMS OF HOW HE IS TREATED IN COURT. THAT IS A VIOLATION OF HER OATH AS A JUDGE, TO TREAT EVERYONE THE SAME. I FOUND THAT JUST SO SHOCKING. AND I WILL LEAVE TO NEAL AND TO BRAD, ALL SORTS OF OTHER THINGS, BUT NOW WE TURN TO SOMETHING POSITIVE, WHICH YOU MENTIONED, WHICH, IS BECAUSE SHE IS ALSO, FRANKLY, I THINK, A CHICKEN -- SHE COULD BE DOING ALL THIS REVIEW HERSELF, BUT SHE HAS DECIDED TO HAVE A SPECIAL MASTER. WELL, THAT IS A BIG PLUS FOR THE DEPARTMENT HERE, BECAUSE RAYMOND DEARIE IS A REAL STEP UP, IN A COMPLETE DIFFERENT LEAGUE THAN THIS JUDGE. AND SO BY HER SUBCONTRACTING OUT HER OWN DUTIES AND ACTUALLY, AND I THINK SHE IS THINKING, "LET HIM BE THE FALL GUY; LET HIM HAVE TO SAY THAT DONALD TRUMP IS WRONG," BECAUSE THEN HER HANDS ARE SOMEWHAT CLEAN. I THINK THAT IS WHAT IS GOING ON HERE. AND IT'S REALLY DISGRACEFUL, THAT THAT IS THE WAY SHE IS APPROACHING HER JOB. BUT FROM THE DEPARTMENT OF JUSTICE'S POINT OF VIEW, I THINK THAT THERE IS A LOT OF HOPE THAT THEY SHOULD HAVE, GIVEN JUDGE DEARIE'S TRACK RECORD, AND HIS COMMON SENSE AND INTEGRITY.

>> [Lawrence O'Donnell] NEAL KATYAL, GO.

>> [Neal Katyal] SO, LAWRENCE, YOU'VE HEARD OF OLIVER WENDELL HOLMES, JOHN MARSHALL, RUTH BADER GINSBURG. THIS IS LIKE THE POLAR OPPOSITE OF THEM. AND WE USED TO SAY AT THE SOLICITOR GENERAL'S OFFICE THAT SOME APPEALS WIRTE THEMSELVES. THIS IS ON., AND IT IS A TERRIBLE, TERRIBLE ABUSE OF OUR LEGAL SYSTEM, FOR REASONS THAT ANDREW JUST MENTIONED A MOMENT AGO. IT WAS ALSO ENTIRELY UNNECESSARY. THE JUSTICE DEPARTMENT GAVE THIS JUDGE AN OPPORTUNITY TO WALK BACK HER NOT-SO-EARLIER OPINION. AND INSTEAD, SHE CHOSE TO DIG HER HEELS IN. I MEAN, BILL BARR CALLED THIS REQUEST FOR A SPECIAL MASTER, "A CROC OF S-WORD". AND WHILE I THOUGHT THAT WAS KIND OF MEAN TO CROCS, THIS OPINION IS LIKE A CROC OF CROC OF THE S-WORD. AND THE JUSTICE DEPARTMENT GAVE HER A LIFELINE, AND SHE JUST BLEW IT OFF. AND I CAN TELL, YOU THIS DECISION SHOULD BE REVERSED WITHIN A WEEK. AND THE JUSTICE DEPARTMENT GAVE HER THAT SENSIBLE PROPOSAL SAYING, "LOOK, THERE'S 100 DOCUMENTS. HE HAS NO, TRUMP HAS NO PLAUSIBLE CLAIM TO OWNERSHIP OF THESE DOCUMENTS. THEY ARE OBVIOUSLY GOVERNMENT DOCUMENTS. AT LEAST SEPARATE THAT OUT." SHE HAS NO REAL ARGUMENT AGAINST THAT. SO IF I'M THE SOLICITOR GENERAL, WHAT I WOULD DO IS GO TO THE 11TH CIRCUIT TONIGHT, OR TOMORROW MORNING, SEEK AN EMERGENCY STAY OF THIS DECISION, AND I WAS ALWAYS RELUCTANT TO SEEK EMERGENCY STAYS WHEN I WAS AT THE JUSTICE DEPARTMENT, BUT IN RARE CIRCUMSTANCES YOU WOULD. THIS IS THAT CIRCUMSTANCE. YOU STAY THIS RULING ABOUT THE HUNDRED OR SO DOCUMENTS. YOU LET THE CRIMINAL INVESTIGATION PROCEED. AND THEN YOU APPEAL THE ENTIRE BALL OF WAX, WHICH IS CRAZY, JUST SLIGHTLY LESS CRAZY THAN THE OTHER PARTS OF HER DECISION. AND LET ME JUST ISOLATE ONE REASON WHY I THINK THAT STRATEGY MAKES SENSE. THERE IS A WHOLE THING IN THE LAW ABOUT IRREPARABLE HARM, WHICH IS, IF THIS INVESTIGATION GOES FORWARD, WHO IS HARMED? AND THE JUSTICE DEPARTMENT PROVIDED THIS AFFIDAVIT THAT SAID "JUDGE, YOUR SPECIAL MASTER RULING IS GOING TO ENDANGER NATIONAL SECURITY," AND SHE SAYS, IN HER RULING TONIGHT, "WELL, I JUST DON'T SEE THAT," BASED ON I GUESS, HER EXTENSIVE NATIONAL SECURITY EXPERIENCE. LET ME JUST SAY IN A CONCRETE WAY, EXPLAIN HOW THIS MATTERS. BECAUSE BEFORE I WAS ACTING SOLICITOR GENERAL, I WAS NATIONAL SECURITY ADVISER FOR THE JUSTICE DEPARTMENT. SOME OF THESE DOCUMENTS ARE MARKED WITH "HCS", THAT'S "HUMAN SOURCE MATERIAL." AND WHAT THAT IS, IS LIKE SOMEONE WHO IS A SPY, WHO IS MAYBE WORKING IN A FOREIGN GOVERNMENT SPYING. SOMETHING LIKE THAT. THEY ARE IN THE FIELD. NOW, IF YOU'RE THAT PERSON IN THE FIELD RIGHT NOW, YOU HAVE NO IDEA WHETHER THOSE DOCUMENTS THAT TRUMP BROUGHT TO HIS GOLF CLUB ARE ABOUT YOU, AND WHO GOT TO SEE THOSE DOCUMENTS. IF YOU'RE THAT PERSON, YOU'VE GOT TO BE FREAKING OUT RIGHT NOW. NOW WHAT KIND OF INTELLIGENCE DO YOU THINK WE'RE GOING TO BE GETTING FROM THAT PERSON IN THE INTERIM, WHILE WE WAIT FOR THE SPECIAL MASTER TO REACH HIS DECISION? AND WOULDN'T WE WANT TO REASSURE EVERYONE ELSE IN THE FIELD THAT, YOU KNOW, "LOOK, THESE DOCUMENTS AREN'T ABOUT YOU, THEY'RE ABOUT SOMETHING ELSE. AND YOU DON'T HAVE TO WORRY." WOULDN'T YOU WANT THAT ASSESSMENT TO HAPPEN RIGHT NOW? SHE JUST BLOWS IT OFF! EASY APPEAL, EASY STAY.

>> [Lawrence O'Donnell] BRADLEY MOSS, YOU'VE SERVED AS A DEFENCE CRIMINAL ATTORNEY IN CLASSIFIED DOCUMENTS CASES. THE PART OF THE ORDER THAT IS CURIOUS TO ME IS, WHEN THE JUDGE ORDERS THAT THE SPECIAL MASTER WILL SHOW ALL OF THE CLASSIFIED DOCUMENTS TO DONALD TRUMP'S LAWYER. NONE OF THEM HAVE EVER SEEN A CLASSIFIED DOCUMENT. NONE OF THEM HAVE ANY SECURITY CLEARANCES. HOW IS THAT DONE IN THAT SITUATION?

>> [Bradley Moss] YEAH, SO, THEY'RE GOING TO HAVE TO GET SECURITY CLEARANCE. THEY ARE GOING TO HAVE TO GO THROUGH THE PROCESS, WHICH CAN BE EXPEDITED, TO BE FAIR. THEY'LL HAVE TO FILL OUT THE STANDARD FORM 86. IT WILL GET A QUICK RUN THROUGH ASSUMING NO IMMEDIATE RED FLAGS SHOW UP. THEY WILL REVIEW AND INSPECT THE DOCUMENTS IN A SECURE FACILITY, IN THE PRESENCE OF THE SPECIAL MASTER. THEY WON'T BE ABLE TO TAKE ANYTHING OUT. ANY NOTES THEY TAKE WILL HAVE TO BE REVIEWED FOR DE- CLASSIFICATION, AND IF THEY ARE CLASSIFIED, THEY WILL STAY IN THE CUSTODY OF THE SPECIAL MASTER. BUT HERE IS THE PART THAT MAKES NO SENSE TO ME WHEN I AM READING THIS SPECIAL MASTER ORDER. WHAT IS THE SPECIAL MASTER GOING TO DO WITH THESE MARKED DOCUMENTS WITH CLASSIFICATION MARKS? HE'S GONNA LOOK AT THEM, HE'S GOING TO SAY OKAY, I SEE TOP SECRET, SCI, WITH HCS AS, NEIL SAID,.WHAT DO YOU WANT ME TO DO WITH THAT? THAT'S PROPER CLASSIFICATION MARKING. ALL DONALD TRUMP CAN THEORETICALLY SAY IS, "WELL, I VERBALLY DECLASSIFIED THEM." AND LET'S ASSUME, FOR THE MOMENT, HE GETS KASH PATEL, AND WHOEVER, TO SUBMIT A SWORN DECLARATION SAYING "YES, I STOOD THERE WHILE HE DECLASSIFIED THEM VERBALLY." SO WHAT? THE RELEVANT STATUTES DON'T CARE. THE ESPIONAGE ACT DOESN'T CARE! THE TWO OBSTRUCTION PROVISIONS DO NOT CARE IF THE DOCUMENTS WERE STILL CLASSIFIED. THEY STILL HAVE CLASSIFICATION MARKINGS. HE JERKED DOJ AROUND, AS NO OTHER THAN BILL BARR SAID. AND HE DIDN'T TURN OVER, AND MADE HIS LAWYERS LIE TO THE FBI. WHETHER OR NOT HE VERBALLY, OR IN HIS MIND, WHILE PLAYING GOLF, DECLASSIFIED THESE RECORDS, IS ULTIMATELY GOING TO BE IRRELEVANT. AND I DON'T KNOW WHAT THE SPECIAL MASTER IS SUPPOSED TO SAY THERE OTHER THAN "THESE CLASSIFICATION MARKINGS ARE VALID." END OF DISCUSSION!

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DOJ Has No Option But To Appeal’: Brandon Van Grack
by Nicole Wallace
MSNBC
Sep 16, 2022

Former senior national security official at the Department of Justice Brandon Van Grack reacts to Judge Aileen Cannon yet again denying the Department of Justice access to roughly 100 classified documents



Transcript

[Nicole Wallace] TAKE TRUMP OUT OF IT JUST FOR A SECOND. WHAT IS CANNON GETTING WRONG ABOUT THE MATERIAL THAT'S BEEN SEIZED?

>> [Brandon Van Grack] WELL, PART OF IT IS IN TERMS OF HER AUTHORITY TO DETERMINE WHAT THAT MATERIAL IS. IT IS IN TERMS OF DEFINING WHAT IS CLASSIFIED INFORMATION, WHAT IS NATIONAL SECURITY INFORMATION, THAT SHOULD BE RESTRICTED, THAT SHOULD BE CONTROLLED. THAT'S THE PURVIEW OF THE PRESIDENT OF THE UNITED STATES, BECAUSE HE OR SHE IS COMMANDER IN CHIEF. AND THE SUPREME COURT HAS CODIFIED THAT. THAT'S SORT OF A LONG-STANDING PRINCIPLE. AND IN HER OPINION, SHE CHALLENGES THE REPRESENTATION OF THE DEPARTMENT OF JUSTICE AND SAYS ULTIMATELY, "I DON'T KNOW IF I SHOULD TRUST THIS REPRESENTATION AND, THEREFORE, WE SHOULD PROVIDE THIS CLASSIFIED INFORMATION TO A SPECIAL MASTER. AND ULTIMATELY, AFFORD THIS JUDGE THE ABILITY TO DETERMINE WHAT IS CLASSIFIED." AND THAT'S JUST NOT THE ROLE OF THE JUDICIAL BRANCH. THAT'S NOT THE ROLE OF THIS JUDGE.

>> [Nicole Wallace] AND I SAID TAKE TRUMP OUT OF IT FOR A SECOND, BECAUSE I THINK, LIKE EVERYTHING INVOLVING TRUMP, IT MUDDLES EVERYTHING. BUT I THINK IT'S AN IMPORTANT DISTINCTION. YOU'RE SAYING CLASSIFIED INFORMATION BELONGS TO THE GOVERNMENT THAT CLASSIFIED IT. AND WHETHER TRUMP DECLASSIFIED CERTAIN THINGS OR NOT, IS IRRELEVANT TO WHAT HAS BEEN SEIZED. TALK ABOUT THE CHAIN OF CUSTODY NOW BEFORE IT COULD EVEN GET BACK INTO THE HANDS OF THE GOVERNMENT.

>> [Brandon Van Grack] RIGHT NOW THE GOVERNMENT STILL HAS THAT INFORMATION.

>> [Nicole Wallace] BUT CAN'T USE IT.

>> [Brandon Van Grack] IT CAN'T -- WELL, IT CAN'T USE IT FOR ITS CRIMINAL INVESTIGATION, AND THIS IS WHERE THE JUDGE SORT OF SPLIT HAIRS, AND SAID, "FOR THE NATIONAL SECURITY ASSESSMENT, TO DETERMINE WHAT DAMAGE HAS BEEN CAUSED, IT CAN BE USED." BUT THE GOVERNMENT'S POINT IS, YOU CANNOT SEPARATE THAT FROM THE CRIMINAL INVESTIGATION. WHAT THE FBI IS DOING RIGHT NOW IS ESSENTIAL TO DETERMINING WHAT DAMAGE MAY HAVE OCCURRED, AND HOW TO -- HOW TO MITIGATE IT. THEY NEED TO KNOW WHO MAY HAVE HAD ACCESS TO THAT CLASSIFIED INFORMATION. WHERE WAS IT STORED. THAT IS -- THAT IS ESSENTIAL, BECAUSE DAMAGE OCCURS IF THIS CLASSIFIED INFORMATION WAS -- SOMEONE HAD UNAUTHORIZED ACCESS TO IT. AND THE MORE SPECIFICITY THEY HAVE, THE BETTER THEY CAN DETERMINE THE DAMAGE, THE BETTER THEY CAN MITIGATE IT. AND RIGHT NOW THE GOVERNMENT DOES NOT HAVE THE ABILITY TO MAKE THAT DETERMINATION.

>> [Nicole Wallace] WHEN YOU WERE AT DOJ, THIS CASE WOULD HAVE BEEN SOMETHING YOU WOULD HAVE BEEN INVOLVED IN. HAVE THEY ARGUED THIS AS PLAINLY AS YOU THINK THEY CAN? WHAT IS THE BEST ARGUMENT TO MAKE?

>> [Brandon Van Grack] I THINK THE LAST TWO FILINGS THAT THE DEPARTMENT OF JUSTICE HAS MADE, IT'S ELEGANT IN TERMS OF ITS TONE AND SUBSTANCE, AND WHAT YOU HAVE HERE IS, EVEN THOUGH WE'RE TALKING ABOUT A SPECIAL MASTER, THEY HAVE SUBSTANTIALLY NARROWED THE QUESTION HERE. AND THAT'S WHAT MADE, TO USE YOUR WORDS, THE DECISION LAST NIGHT "ASTONISHING." THEY HAVE NARROWED IT IN SAYING, "EVEN THOUGH WE DISAGREE WITH THE IMPOSITION OF A SPECIAL MASTER -- IT'S UNNECESSARY, UNREASONABLE -- PUTTING THAT ASIDE, YOU CANNOT TELL THE EXECUTIVE BRANCH, AND BY EXTENSION THE PRESIDENT OF THE UNITED STATES, THEY CANNOT CONTROL ACCESS TO CLASSIFIED INFORMATION. THAT THEY" -- REMEMBER, THE SPECIAL MASTER, THE PURPOSE OF THE SPECIAL MASTER IS TO DETERMINE, "IS THERE INFORMATION THAT THE DEPARTMENT OF JUSTICE AND FBI SHOULD NOT HAVE." FOR EXAMPLE, ATTORNEY-CLIENT INFORMATION, SENSITIVE INFORMATION BETWEEN ATTORNEY AND HIS OR HER CLIENT.

>> [Nicole Wallace] TRUMP AND RUDY OR TRUMP AND WHOEVER --

>> [Brandon Van Grack] YOU KNOW, EVEN IN -- YOU'RE TAKING AWAY TRUMP FROM THE CONVERSATION. LET'S TAKE TRUMP AWAY FROM THE CONVERSATION. THE POINT IS THERE ARE COMMUNICATIONS BETWEEN AN ATTORNEY AND HIS OR HER CLIENT. THE GOVERNMENT SHOULD NOT HAVE ACCESS TO, AND A SPECIAL MASTER IS SUPPOSED TO DETERMINE THIS INFORMATION SHOULD NOT BE PROVIDED. AND THAT'S WHAT MAKES THIS DECISION SO ASTONISHING, WHICH IS IT SETS UP THE POSSIBILITY THAT THE SPECIAL MASTER AND THE JUDGE COULD SAY, "THE DEPARTMENT OF JUSTICE AND THE EXECUTIVE BRANCH CANNOT HAVE ACCESS TO THIS CLASSIFIED INFORMATION. I MEAN, IT IS -- IT'S AN UNTENABLE CIRCUMSTANCE. AND THE REASON WE'RE THERE, IS BECAUSE THE DEPARTMENT OF JUSTICE HAD NARROWED THE SCOPE OF THEIR REQUEST, AND PUT THE JUDGE IN A SITUATION TO PRESUMABLY NOT REACH THIS DECISION. BUT IT'S THE REASON WHY I THINK WE'RE GOING TO SEE AN APPEAL, YOU KNOW, ANY MINUTE NOW.

>> [Nicole Wallace] WHAT DO YOU THINK WILL HAPPEN ON APPEAL?

>> [Brandon Van Grack] WELL, I'M NOT NEAL KATYAL, SO I DON'T WANT TO TAKE TOO MANY STEPS AHEAD. I THINK WE WILL SEE THE DEPARTMENT OF JUSTICE SEEKING AN IMMEDIATE EMERGENCY APPEAL AS QUICKLY AS POSSIBLE. AND I THINK IN DOING SO, WE'RE PROBABLY GOING TO CONTINUE TO SEE A NARROWING OF THE ISSUE, AS OPPOSED TO A CHALLENGING THE PRINCIPLE OF A SPECIAL MASTER BEING OPPOSED. AND THEY WOULD HAVE THE RIGHT TO DO THAT, NARROWING IT TO JUST THE CLASSIFIED DOCUMENTS, JUST THIS LIMITED PRINCIPLE, BECAUSE I THINK IT IS -- AS MEMBERS OF THE EXECUTIVE BRANCH, IT'S NOT TENABLE.

>> [Nicole Wallace] WHAT'S NOT TENABLE? I WANT TO MAKE SURE I UNDERSTAND. WHAT'S NOT TENABLE IS A PRIVATE CITIZEN SAYING IT'S MINE, AND YOU CAN'T HAVE IT BACK, TO PROCEED WITH THE DAMAGE ASSESSMENT, OR PROCEED WITH THE CASE?

>> [Brandon Van Grack] I ACTUALLY --

>> [Nicole Wallace] WHAT I'M TRYING TO KNOW IS, WHY DO YOU HAVE EVERYONE, YOU KNOW, EVERYONE FROM THE LEFT, TO THE CENTER, TO JOHN YOO AND BILL BARR SAYING THAT TRUMP'S CASE IS GARBAGE?

>> [Brandon Van Grack] YOU'RE TALKING ABOUT A PRIVATE CITIZEN. I'M ACTUALLY SAYING THE JUDICIAL BRANCH IS NOT IN A POSTION, SHOULD NOT BE IN A POSITION, TO TELL THE EXECUTIVE BRANCH AND THE PRESIDENT HOW TO CONTROL ACCESS TO CLASSIFIED MATERIAL. THAT IS THE PURVIEW OF THE EXECUTIVE BRANCH. AGAIN, THAT'S THE REASON WHY THE DEPARTMENT OF JUSTICE HAS NO OPTION BUT TO APPEAL THIS. BECAUSE THERE ARE PRINCIPLES HERE THAT GO FAR BEYOND WHAT IS HAPPENING IN THIS CASE. SO I THINK YOU'RE GOING TO SEE A VERY VIGOROUS DEFENSE OF PRESERVING THE EXECUTIVE BRANCH'S ABILITY TO PROTECT AND CLASSIFY INFORMATION.

>> [Nicole Wallace] THAT'S INTERESTING. THAT'S A FIRST SORT OF WINDOW INTO UNDERSTANDING WHY YOU HAVE THE FAR RIGHT, LEGAL MINDS LIKE JOHN YOO AND BILL BARR, MAKING THE SAME ARGUMENT THAT SOME ON THE LEFT ARE. IS THAT THE PRINCIPLE?

>> [Brandon Van Grack] WHAT'S REMARKABLE IS LIKE, THERE IS NO RIGHT AND LEFT HERE.

>> [Nicole Wallace] RIGHT.

>> [Brandon Van Grack] THESE ARE NOT LEGAL PRINCIPLES THAT ARE IN DISPUTE. I MEAN, THERE'S A FAMOUS CASE FROM THE 1980s WHERE THE SUPREME COURT EXPLAINED ALL THIS. AND FOR YEARS, FOR DECADES, INCLUDING FILINGS I DID, EVERYONE JUST CITES TO THIS ONE CASE, BECAUSE IT HAS TO BE TRUE. AND I'LL SORT OF MAKE A FURTHER EXTENSION. THERE'S A PIECE IN THE OPINION WHERE THE JUDGE CHALLENGES THE REPRESENTATION OF THE DEPARTMENT OF JUSTICE WHEN THE DEPARTMENT OF JUSTICE SAYS THAT IT WOULD CAUSE IRREPARABLE HARM TO BE COMPELLED TO DISCLOSE THIS CLASSIFIED INFORMATION TO THE SPECIAL MASTER, BECAUSE IT'S HIGHLY CLASSIFIED.

>> [Nicole Wallace] RIGHT.

>> [Brandon Van Grack] AND THE EXECUTIVE BRANCH KNOWS WHAT IS CLASSIFIED. THEY KNOW -- THE JUDGE AND THE SPECIAL MASTER HAS NO WINDOW INTO THAT, HAS NO BACKGROUND. IT HAS TO BE THAT THE EXECUTIVE BRANCH CAN DETERMINE WHAT IS SENSITIVE, AND WHAT CAN BE DISCLOSED. AND THE JUDGE SAYS, "THAT POSITION IS MERITLESS."

>> [Nicole Wallace] HOW DID WE GET HERE? HOW DID -- HOW DID TRUMP END UP BEFORE THE ONE JUDGE THAT SEES THIS VERY BLACK AND WHITE, AS YOU JUST SAID, NONPARTISAN, NONPOLITICAL ISSUE ABOUT ACCESS TO CLASSIFIED INFORMATION, IN SUCH A TRUMP-FRIENDLY MANNER?

>> [Brandon Van Grack] IT IS NOT UNCOMMON FOR LITIGANTS TO TRY TO FIND FAVORABLE COURTS, AND FOR THE DEPARTMENT OF JUSTICE TO CHARGE CASES IN FAVORABLE COURTS. I THINK MORE SO THAN EVEN DETERMINING HOW -- LIKE WAS THIS STRATEGICALLY DONE AND HOW. WE'RE AT A POINT RIGHT NOW WHERE THERE ARE REALLY SERIOUS CONCERNS IN TERMS OF THE SEPARATION OF POWERS. THERE ARE REALLY SERIOUS CONCERNS ABOUT NATIONAL SECURITY BASED ON THIS OPINION. AND SO IT DOESN'T MATTER WHO SAID IT. IT DOESN'T MATTER WHO APPOINTED THAT? THE DEPARTMENT OF JUSTICE, AND BY EXTENSION ALL OF US, WHO NEED THIS INVESTIGATION TO BE CONDUCTED, THOROUGHLY AND COMPLETELY, AND QUICKLY, THIS OPINION, THIS ORDER, THIS LIMITATION, IT JUST CANNOT CONTINUE. IT HAS TO BE APPEALED AND OVERTURNED.

>> [Nicole Wallace] LET'S PULL TRUMP BACK INTO THE CONVERSATION. WHAT DOES IT SAY -- OBVIOUSLY IF YOU'RE STILL IN THE DEPARTMENT, AND IF YOU WERE WORKING ON THIS CASE YOU COULDN'T WEIGH IN ON THIS. BUT SORT OF INFORMED ANALYSIS. WHAT IS YOUR SENSE OF TRUMP'S END GAME? HE JUST WANTS TO HANG ON TO CLASSIFIED STUFF INDEFINITELY TO SHOW IT TO HIS FRIENDS?

>>[ Brandon Van Grack] YOU KNOW, I DON'T -- I DON'T THINK THE DEPARTMENT OF JUSTICE RIGHT NOW IS EVEN FOCUSING ON THE END GAME, BECAUSE IN TERMS OF THE NATIONAL SECURITY ISSUE, IT DOESN'T MATTER. WHAT MATTERS IS THAT FOR 19 MONTHS, HUNDREDS OF DOCUMENTS, OF SOME OF THE MOST HIGHLY CLASSIFIED AND SENSITIVE INFORMATION, HAVE BEEN UNSECURED AND UNMONITORED AND UNCONTROLLED. THAT IN AND OF ITSELF IS A SIGNIFICANT NATIONAL SECURITY ISSUE, EVEN IF THE MOTIVATION WAS SLOPPY RECORDKEEPING. EVEN IF IT IS THE MOST GENERAL --

>> [Nicole Wallace] YOU'RE SAYING, TAKE THE MOTIVE AND END GAME OUT, THE ALLEGED CRIMES HAVE ALREADY TAKEN PLACE?

>> [Brandon Van Grack] WHETHER THEY'RE CRIMES OR NOT, FROM A NATIONAL SECURITY PERSPECTIVE, IT IS -- WHILE IT'S RELEVANT, EVEN REGARDLESS OF WHAT THOSE MOTIVES ARE, IT IS SIGNIFICANT AND IT IS SERIOUS. AND for THE CHARGES THAT ARE BEING CONTEMPLATED, IT IS COMPLETELY IRRELEVANT WHAT THE MOTIVE IS. IN TERMS OF THE ESPIONAGE ACT, IT IS THE RETENTION, SOLELY THE RETENTION OF THAT INFORMATION THAT IS UNLAWFUL. THERE'S NOTHING -- THERE ARE LAWS THAT MAKE IT UNLAWFUL TO DISCLOSE AND TRANSMIT. THE DEPARTMENT OF JUSTICE HAS NOT INDICATED THAT THAT'S WITHIN THE PURVIEW OF THIS INVESTIGATION AT THIS TIME.

>> [Nicole Wallace] THEY'VE SENT A LOT OF TEA LEAVES, TEA LEAVES ISN'T THE RIGHT WAY TO DESCRIBE IT -- THE DEPARTMENT DOESN'T WRITE IN TEA LEAVES. BUT THERE'S A LOT OF PUBLIC-FACING EVIDENCE ABOUT OBSTRUCTION. HOW WOULD YOU EVALUATE WHAT'S IN THE PUBLIC SPHERE ABOUT THE OBSTRUCTION?

>> [Brandon Van Grack] THE OBSTRUCTION IS INEXTRICABLY LINKED TO THE FACT THAT RIGHT NOW WE HAVE THIS CRIMINAL INVESTIGATION. IT'S IMPORTANT TO CONTINUE TO TAKE A STEP BACK. THE FORMER PRESIDENT OF THE UNITED STATES HAD CLASSIFIED INFORMATION FOR OVER A YEAR, THEN TURNED IT OVER TO THE ARCHIVES. AND EVEN THOUGH WE KNOW RIGHT NOW THAT THE FBI, THERE WAS A REFERRAL MADE IN THE OPEN INVESTIGATION, I DON'T THINK WE WOULD BE TALKING ABOUT THIS IF ALL THE CLASSIFIED INFORMATION WAS SIMPLY PROVIDED TO THE DEPARTMENT OF JUSTICE THEN. AND THEN IN JUNE THE DEPARTMENT OF JUSTICE GOES DOWN TO MAR-A-LAGO, HAS A SUBPOENA, AND COLLECTS ADDITIONAL CLASSIFIED INFORMATION. IF ALL OF THE CLASSIFIED INFORMATION WAS PROVIDED AT THAT TIME, I DON'T THINK WE WOULD BE TALKING ABOUT CRIMINAL CHARGES. WE WOULD NOT BE HAVING THIS DISCUSSION. BUT SOMETHING HAPPENED, AND THAT'S WHERE THE OBSTRUCTION COMES INTO PLAY. THERE WERE REPRESENTATIONS MADE TO THESE -- THESE ATTORNEYS AND THESE AGENTS FROM THE DEPARTMENT OF JUSTICE. THEIR MISSION, THEIR -- THEY ARE TASKED TO PROTECT CLASSIFIED INFORMATION. THIS IS WHAT THEY DO. THIS IS -- AND THE OBSTRUCTIVE ELEMENT, IT WASN'T JUST OBSTRUCTING AN INVESTIGATION. LIKE SORT OF A -- THAT WAS, BUT IT WAS OBSTRUCTING AN INVESTIGATION TO ENSURE THAT CLASSIFIED INFORMATION THAT COULD DAMAGE NATIONAL SECURITY WAS OBTAINED AND ANY DAMAGE RECTIFIED. THAT'S THE OBSTRUCTIVE ACT. AND SO IT REALLY ELEVATES, I THINK, THE CONCERN. AND REALLY THE LEVEL OF SERIOUSNESS OF THE CONDUCT WE'RE TALKING ABOUT.

>> [Nicole Wallace] WHEN YOU LOOK AT THE PUBLIC-FACING EVIDENCE OF OBSTRUCTION, DO YOU SEE THINGS THAT A NORMAL PERSON WOULDN'T? I MEAN, DO YOU SEE THAT THERE'S SOMEBODY COOPERATING THAT HAD ACCESS TO THIS MISHANDLING OF CLASSIFIED DOCUMENTS? DO YOU SEE THAT THERE'S A FLOW OF INFORMATION TO DOJ?

>> [Brandon Van Grack] I WISH I COULD SAY I KNEW WHAT, YOU KNOW, REDACTED PARAGRAPH 65 REFERRED TO.

>> [Nicole Wallace] ME, TOO.

>> [Brandon Van Grack] I THINK MORE TO THE POINT, I THINK WHAT IT SHOWS THAT THERE ARE CERTAINLY KEY PEOPLE WHO ARE, IN FACT, COOPERATING, KEY WITNESSES WHO ARE PARTICIPATING. AND I THINK WHEN YOU TALK ABOUT SORT OF THE END GAME, WHAT THIS LOOKS LIKE, REALLY THE ULTIMATE QUESTION IS GOING TO BE WHO IS -- WHO WITH DIRECT KNOWLEDGE OF WHAT HAPPENED TO THIS INFORMATION, WHO HANDLED THE INFORMATION, WHO DIRECTED THAT CERTAIN INFORMATION BE PROVIDED TO THE ARCHIVES AND THE DEPARTMENT AND WHO DIDN'T -- IF THOSE INDIVIDUALS HAVEN'T, WITH THAT KNOWLEDGE, COOPERATED AND PARTICIPATED, THAT'S WHEN YOU WOULD SEEK CRIMINAL CHARGES.

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Order Denying Motion for Partial Stay Pending Appeal
by Judge Aileen M. Cannon, U.S. District Judge
Donald J. Trump, Plaintiff, v. United States of America, Defendant
September 15, 2022

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

CASE NO. 22-81294-CIV-CANNON

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

ORDER DENYING MOTION FOR PARTIAL STAY PENDING APPEAL

THIS CAUSE comes before the Court upon the Government’s Motion for Partial Stay Pending Appeal (the “Motion”) [ECF No. 69], filed on September 8, 2022. The Court has reviewed the Motion, the Response in Opposition [ECF No. 84], the Reply [ECF No. 88], and the full record. For the reasons discussed below, the Government’s Motion [ECF No. 69] is DENIED. Further, by separate order, and by agreement of the parties as a matter of selection [ECF Nos. 83, 86], the Honorable Raymond J. Dearie, Senior United States District Judge for the Eastern District of New York, is hereby appointed to serve as Special Master in this case. As further described in that order, the Special Master is directed to prioritize review of the documents at issue in the Motion and to issue interim reports and recommendations as appropriate.

RELEVANT BACKGROUND

Plaintiff Donald J. Trump initiated this action on August 22, 2022, seeking various forms of relief in connection with the search warrant executed on his residence on August 8, 2022 [ECF No. 1]. The Court held a hearing on Plaintiff’s requests on September 1, 2022 [ECF No. 62]. Thereafter, pursuant to its equitable jurisdiction and inherent supervisory authority, and in light of the extraordinary circumstances presented, the Court granted Plaintiff’s request for the appointment of a special master and temporarily enjoined the Government from further review and use of the seized materials for criminal investigative purposes only (the “September 5 Order”) [ECF No. 64]. The September 5 Order allows the Government to “continue to review and use the materials seized for purposes of intelligence classification and national security assessments” (the “Security Assessments”) [ECF No. 64 p. 24].

On September 8, 2022, the Government filed a notice of appeal [ECF No. 68] followed by the instant Motion [ECF No. 69].1 The Motion requests a stay of the September 5 Order to the extent it “(1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review” [ECF No. 69 p. 1]. The Motion is accompanied by the Declaration of Alan E. Kohler, Jr., Assistant Director of the Counterintelligence Division of the Federal Bureau of Investigation (the “Kohler Declaration”) [ECF No. 69-1]. The Kohler Declaration states that the Government’s Security Assessments are “inextricably linked” to the Government’s criminal investigation, and that it would be “exceedingly difficult” to bifurcate the personnel involved [ECF No. 69-1 pp. 3–4]. On September 12, 2022, Plaintiff filed a response in opposition to the Motion [ECF No. 84], and on September 13, 2022, the Government filed a reply [ECF No. 88].

The Government advises in the Motion that it will seek relief from the United States Court of Appeals for the Eleventh Circuit “f the Court does not grant a stay by Thursday, September 15” [ECF No. 69 p. 1]. Appreciative of the urgency of this matter, the Court hereby issues this Order on an expedited basis.

LEGAL STANDARD

In considering a motion to stay pending appeal, district courts must consider “(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). “The first two factors of [this] standard are the most critical,” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial discretion to stay an injunction].” Nken, 556 U.S. at 433–34.

DISCUSSION

The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. [i]In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)].2

In many respects, the Government’s position thus presupposes the content, designation, and associated interests in materials under its control—yet, as the parties’ competing filings reveal, there are disputes as to the proper designation of the seized materials, the legal implications flowing from those designations, and the intersecting bodies of law permeating those designations [see ECF No. 69 pp. 5, 8–12; ECF No. 84 pp. 11–15; ECF No. 88 pp. 3–7]. Under these circumstances, the Court declines to conduct a subset-by-subset, piecemeal analysis of the seized property, based entirely on the Government’s representations about what is contained in a select portion of the property. See United States v. Melquiades, 394 F. App’x 578, 584 (11th Cir. 2010) (explaining that, to have standing to bring a Rule 41(g) action, a movant must allege “a colorable ownership, possessory or security interest in at least a portion of the [seized] property” (quoting United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001)). Indeed, if the Court were willing to accept the Government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the Court would have denied Plaintiff’s special master request [see ECF No. 48 p. 3 (arguing that the “appointment of a special master is unnecessary” because the Government had already reviewed the materials and identified personal items and potentially privileged materials)].

Therefore, upon consideration of the full range of seized materials as described in the Government’s submissions, and for the reasons explained in the September 5 Order and supplemented in part below, the Court does not find the requested partial stay to be warranted under the circumstances. The Court offers the following limited analysis on three additional areas, mindful of the Government’s request for an expedited ruling.

I. The September 5 Order

First, accounting for the concerns raised in the Government’s submissions [ECF No. 69 p. 17; ECF No. 88 p. 8], the Court finds that further elaboration on the September 5 Order is warranted. The September 5 Order temporarily enjoins the Government—as a component of the special master process—only from further use of the content of the seized materials for criminal investigative purposes pending resolution of the Special Master’s recommendations. This includes, for example, presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation. The September 5 Order does not restrict the Government from conducting investigations or bringing charges based on anything other than the actual content of the seized materials; from questioning witnesses and obtaining other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents [ECF No. 69 p. 17]; from briefing “Congressional leaders with intelligence oversight responsibilities” on the seized materials [ECF No. 69 p. 17 n.5]; from reviewing the seized materials to conduct the Security Assessments; or from involving the FBI in the foregoing actions.3 Moreover, as indicated in the September 5 Order, the temporary restraint does not prevent the Government from continuing “to review and use the materials seized for purposes of intelligence classification and national security assessments” [ECF No. 64 p. 24]. Hence, as Plaintiff acknowledges, to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts concerning the content of the seized materials, the September 5 Order does not enjoin the Government from proceeding with its Security Assessments [ECF No. 84 p. 16; ECF No. 39 pp. 2–3].

Again, the September 5 Order imposes a temporary restraint on certain review and use of the seized materials, in natural conjunction with the special master process, only for the period of time required to resolve any categorization disputes and rule on Plaintiff’s Rule 41(g) requests. This restriction is not out of step with the logical approach approved and used for special master review in other cases, often with the consent of the government, and it is warranted here to reinforce the value of the Special Master, to protect against unwarranted disclosure and use of potentially privileged and personal material pending completion of the review process, and to ensure public trust.4

II. Irreparable Injury

The Court is not persuaded that the Government will suffer an irreparable injury without the requested stay. With respect to the temporary enjoinment on criminal investigative use, the Government’s main argument is that such use is “inextricably intertwined” with its Security Assessments and therefore the enjoinment at issue necessarily poses a risk to national security interests [ECF No. 69 pp. 3, 12–17]. Mindful of the traditional “reluctan[ce] to intrude upon the authority of the Executive in military and national security affairs,” Department of Navy v. Egan, 484 U.S. 518, 530 (1988), the Court nonetheless cannot abdicate its control over questions of privilege and does not find the Government’s argument sufficiently convincing as presented. First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure [see ECF No. 64 pp. 9–11 n.11]. Second, although it might be easier, in the immediate future, for the Government’s criminal investigative work to proceed in tandem with the Security Assessments, the Government’s submissions on the subject do not establish that pausing the criminal investigative review pending completion of the Special Master’s work actually will impede the intelligence community’s ability to assess “the potential risk to national security that would result from disclosure of the seized materials” [ECF No. 39 pp. 2–3]. The Kohler Declaration, for example, states that it would be “exceedingly difficult” to bifurcate the personnel involved in the described processes, and then it proceeds to posit hypothetical conflicts that could arise if the Security Assessments require criminal investigative efforts [ECF No. 69-1 ¶ 9; see also ECF No. 88 p. 9 (explaining that continued enjoinment of use and review of the seized materials for criminal investigative purposes would cause the intelligence community to “(at best) be limited in its ability to address and fully mitigate any national security risks presented”)]. The Government’s submissions, read collectively, do not firmly maintain that the described processes are inextricably intertwined, and instead rely heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury. Third, as noted above, to the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the September 5 Order does not enjoin the Government from taking actions necessary for the Security Assessments.5 And finally, in light of the Government’s stated concerns, the Court will direct the Special Master to prioritize review of the approximately 100 documents marked as classified (and papers physically attached thereto), and thereafter consider prompt adjustments to the Court’s Orders as necessary.

The Government also presents the argument, in passing, that making the full scope of the seized materials available to the Special Master would itself create irreparable harm [ECF No. 69 p. 18]. Insofar as the Government argues that disclosure to a Special Master of documents marked as classified necessarily creates an irreparable injury because the special master process in this case is unnecessary, the Court disagrees for the reasons previously stated. Separately, to the extent the Government appears to suggest that it would suffer independent irreparable harm from review of the documents by the Court’s designee with appropriate clearances and controlled access, that argument is meritless.

III. Relevant Principles

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved [ECF No. 88 p. 10]. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice. Based on the nature of this action, the principles of equity require the Court to consider the specific context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff. The Court thus continues to endeavor to serve the public interest, the principles of civil and criminal procedure, and the principles of equity. And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED that the Motion for Partial Stay Pending Appeal [ECF No. 69] is DENIED.

DONE AND ORDERED in Chambers at Fort Pierce, Florida this 15th day of September 2022.

_________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE
cc: counsel of record

_______________

Notes:

1 The Government’s appeal has been docketed as 11th Cir. No. 22-13005.

2 See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 178–79 (4th Cir. 2019), as amended (Oct. 31, 2019) (referencing sensible benefits, in certain circumstances, of adversarial, pre-review proceedings on filter protocols).

3 Separately, the Court also clarifies a scrivener’s error: the “January 2021” reference on page 2 of the September 5 Order should read “January 2022” [see ECF No. 64 p. 2 (“In January [2022], as a product of those conversations, Plaintiff transferred fifteen boxes (the “Fifteen Boxes”) from his personal residence to NARA [ECF No. 1 pp. 4–5; ECF No. 48 p. 5; ECF No. 48-1 p. 6].”)]. That typographical error did not affect the Court’s analysis.

4 In general, when courts appoint a special master to review seized materials for potential claims of privilege, the government naturally (and often voluntarily) is temporarily prevented from further review and use of the subject materials. See, e.g., United States v. Abbell, 914 F. Supp. 519, 521 (S.D. Fla. 1995) (appointing special master to review seized materials after government’s taint team had completed a privilege review of some of the seized materials, and enjoining government from further examining seized materials until the court approved the “recommendations made by the Special Master as to the responsiveness and privilege issues”); United States v. Stewart, No. 02-CR-395, 2002 WL 1300059, at *10 (S.D.N.Y. June 11, 2002) (requiring government to place seized materials under seal and not review them until special master completed his review); United States v. Gallego, No. CR-18-01537-001, 2018 WL 4257967, at *3–4 (D. Ariz. Sept. 6, 2018) (same). Cf. United States v. Ritchey, No. 21-CR-6, 2022 WL 3023551, at *9 (S.D. Miss. June 3, 2022) (enjoining government’s prosecution team from further review and use of seized materials until court approved a new filter review process to verify the filter review team’s initial screening process); In re Search Warrant dated November 5, 2021, No. 21-MC-00813-AT, ECF No. 5 (S.D.N.Y. Nov. 12, 2021) (indicating that government voluntarily paused its “extraction and review” of seized contents pending consideration and appointment of special master); In the Matter of Search Warrants Executed on April 9, 2018, No. 18-MJ-03161-KMW, ECF No. 16 (S.D.N.Y. Apr. 9, 2018) (same); In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425- MC-JPO, ECF No. 1 p. 2 (S.D.N.Y. May 4, 2021) (noting that government voluntarily did not begin review of seized materials pending consideration and appointment of special master).

5 Needless to say, the Court is confident that the Government will faithfully adhere to a proper understanding of the term “inextricable” and, where possible, minimize the use and disclosure of the seized materials in accordance with the Court’s orders. Because the Court is not privy to the specific details of the Government’s investigative efforts and national security review, the Court expects that the Government, in general, is best suited to assess whether contemplated actions are consistent with the standard described herein.

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Trump’s Team of Lawyers Marked by Infighting and Possible Legal Troubles of Its Own: Several of the former president’s lawyers are under scrutiny by federal investigators amid squabbling over competence.
by Maggie Haberman and Glenn Thrush
New York Times
Sept. 16, 2022

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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Eric Herschmann, a former White House lawyer for President Donald J. Trump, was a prominent witness in the House Jan. 6 hearings.Credit...Doug Mills/The New York Times

To understand the pressures, feuds and questions about competence within former President Donald J. Trump’s legal team as he faces potential prosecution on multiple fronts, consider the experience of Eric Herschmann, a former Trump White House lawyer who has been summoned to testify to a federal grand jury.

For weeks this summer, Mr. Herschmann tried to get specific guidance from Mr. Trump’s current lawyers on how to handle questions from prosecutors that raise issues of executive privilege or attorney-client privilege.

After ignoring Mr. Herschmann or giving him what he seemed to consider perplexing answers to the requests for weeks, two of the former president’s lawyers, M. Evan Corcoran and John Rowley, offered him only broad instructions in late August. Assert sweeping claims of executive privilege, they advised him, after Mr. Corcoran had suggested that an unspecified “chief judge” would ultimately validate their belief that a president’s powers extend far beyond their time in office.

Mr. Herschmann, who served on Mr. Trump’s first impeachment defense team but later opposed efforts to reverse the results of the 2020 election, was hardly reassured and sounded confused by the reference to a chief judge.

“I will not rely on your say-so that privileges apply here and be put in the middle of a privilege fight between D.O.J. and President Trump,” Mr. Herschmann, a former prosecutor, responded in an email, referring to the Justice Department. The exchange was part of a string of correspondence in which, after having his questions ignored or having the lawyers try to speak directly with him on the phone instead, Mr. Herschmann questioned the competence of the lawyers involved.

The emails were obtained by The New York Times from a person who was not on the thread of correspondence. Mr. Herschmann declined to comment.

Mr. Herschmann’s opinion was hardly the only expression of skepticism from current and former allies of Mr. Trump who are now worried about a turnstile roster of lawyers representing a client who often defies advice and inserts political rants into legal filings.

Mr. Trump’s legal team just won one round in its battle with the Justice Department over the seizure of documents from his residence and private club in Florida, Mar-a-Lago, and it is not clear whether he will face prosecution from the multiple federal and state investigations swirling around him even as he weighs another run for the presidency.

Mr. Trump has also just brought on a well-regarded lawyer, Christopher M. Kise, the former solicitor general of Florida, to help lead his legal team, after being rejected by a handful of others he had sought out, including former U.S. attorneys with experience in the jurisdictions where the investigations are unfolding.

Mr. Kise agreed to work for the former president for a $3 million fee, an unusually high retainer for Mr. Trump to agree to, according to two people familiar with the figure. Mr. Kise did not respond to an email seeking comment.

What to Know About the Trump Investigations

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.

But Mr. Trump’s legal team has been distinguished in recent months mostly by infighting and the legal problems that some of its members appear to have gotten themselves into in the course of defending him.

In a statement, a spokesman for Mr. Trump, Taylor Budowich, said that “the unprecedented and unnecessary weaponization of law enforcement against the Democrats’ most powerful political opponent is a truth that cannot be overshadowed and will continue to be underscored by the vital work being done right now by President Trump and his legal team.”

Two members of the Trump legal team working on the documents case, Mr. Corcoran and Christina Bobb, have subjected themselves to scrutiny by federal law enforcement officials over assurances they provided to prosecutors and federal agents in June that the former president had returned all sensitive government documents kept in his residence and subpoenaed by a grand jury, according to people familiar with the situation.

That assertion was proved to be untrue after the search of Mar-a-Lago in August turned up more than 100 additional documents with classification markings.

Investigators are seeking information from Ms. Bobb about why she signed a statement attesting to full compliance with the subpoena, and they have signaled they have not ruled out pursuing a criminal inquiry into the actions of either Ms. Bobb or Mr. Corcoran, according to two people briefed on the matter.

The attestation was drafted by Mr. Corcoran, but Ms. Bobb added language to it to make it less ironclad a declaration before signing it, according to the people. She has retained the longtime criminal defense lawyer John Lauro, who declined to comment on the investigation.

It is unclear whether the authorities have questioned Ms. Bobb yet or whether she has had discussions with Mr. Trump’s other lawyers about the degree to which she would remain bound by attorney-client privilege.

Mr. Corcoran and Mr. Rowley did not respond to emails seeking comment.

Mr. Corcoran, a former federal prosecutor and insurance lawyer, represented the former Trump aide Stephen K. Bannon in his recent trial for refusing to comply with a subpoena issued by the House committee investigating the Jan. 6 attack on the Capitol. In that case, Mr. Bannon claimed he believed he had immunity from testimony because of executive privilege; Mr. Trump later said he would not seek to invoke executive privilege for Mr. Bannon.

Mr. Corcoran, the son of a former Republican congressman from Illinois, has told associates that he is the former president’s “main” lawyer and has insisted to colleagues that he does not need to retain his own counsel, as Ms. Bobb has.

But several Trump associates have said privately that they believe Mr. Corcoran cannot continue in his role on the documents investigation. That view is shared by some of Mr. Trump’s advisers, who have suggested Mr. Corcoran needs to step away, in part because of his own potential legal exposure and in part because he has had little experience with criminal defense work beyond his stint as a federal prosecutor for the U.S. attorney in Washington more than two decades ago.

Mr. Trump has at least 10 lawyers working on the main investigations he faces. Mr. Corcoran, Ms. Bobb and Mr. Kise are focused on the documents case, along with James M. Trusty, a former senior Justice Department official. Three lawyers on the team — Mr. Corcoran, Mr. Rowley and Timothy Parlatore — represent other clients who are witnesses in cases related to Mr. Trump’s efforts to stay in power.

To the extent anyone is regarded as a quarterback of the documents and Jan. 6-related legal teams, it is Boris Epshteyn, a former campaign adviser and a graduate of the Georgetown University law school. Some aides tried to block his calls to Mr. Trump in 2020, according to former White House officials, but Mr. Epshteyn now works as an in-house counsel to Mr. Trump and speaks with him several times a day.

Mr. Epshteyn played a key role coordinating efforts by a group of lawyers for and political allies of Mr. Trump immediately after the 2020 election to prevent Joseph R. Biden Jr. from becoming president. Because of that role, he has been asked to testify in the state investigation in Georgia into the efforts to reverse Mr. Biden’s victory there.

Mr. Epshteyn’s phone was seized by the F.B.I. last week as part of the broad federal criminal inquiry into the attempts to overturn the election results and the Jan. 6 assault on the Capitol. That prompted alarm among some of Mr. Trump’s allies and advisers about him remaining in a position of authority on the legal team.

It is not clear how much strategic direction and leadership Mr. Kise may provide. But he is joining a team defined by warring camps and disputes over legal issues.

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

Mr. Herschmann made clear in the emails that absent a court order precluding a witness from answering questions on the basis of executive privilege, which he had repeatedly implored them to seek, he would be forced to testify.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment.

Nearly four weeks after Mr. Herschmann first asked for an instruction letter and for Mr. Trump’s lawyers to seek a court order invoking a privilege claim, the emails show that he received notification from the lawyers — in the early morning hours of the day he was scheduled to testify — that they had finally done as he asked.

His testimony was postponed.

Michael S. Schmidt contributed reporting.

Kitty Bennett contributed research.

Correction: Sept. 16, 2022
An earlier version of this article misstated a position once held by Eric Herschmann, the former White House lawyer. He was a prosecutor for New York State, not a federal prosecutor.

Maggie Haberman is a White House correspondent. She joined The Times in 2015 as a campaign correspondent and was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. @maggieNYT

Glenn Thrush covers the Department of Justice. He joined The Times in 2017 after working for Politico, Newsday, Bloomberg News, the New York Daily News, the Birmingham Post-Herald and City Limits. @GlennThrush

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Donald Trump is back at Mar-a-Lago and raging about FBI agents not taking off their shoes while searching his bedroom
by Cheryl Tehsep
Business Insider
SEP 19, 2022, 14:13 IST

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* Trump said on Truth Social that he's finally had a look around Mar-a-Lago.

* He complained that his Florida residence would "never be the same" after the FBI search.

On Sunday night, former President Donald Trump took to Truth Social to fume about the FBI's raid of Mar-a-Lago, accusing agents of not taking off their shoes when searching his bedroom.

Trump announced earlier on Sunday that he would "soon be heading" to Mar-a-Lago. He wrote that he wanted to see "the unnecessary ransacking of rooms and other areas of the house," adding that he felt "totally violated."

Several hours later, Trump said he had arrived at his Florida residence and "had a long and detailed chance" to look around the property. He claimed in his post that the FBI's lawful search of his property was a violation of his Fourth Amendment rights while lamenting that his home would "never be the same."

"It was 'ransacked,' and in far different condition than the way I left it," Trump wrote on Truth Social. "Many Agents - And they didn't even take off their shoes in my bedroom. Nice!!!"

This is not the first time Trump has expressed anger at the FBI agents who searched through his personal items. In August, Trump accused investigators of leaving former first lady Melania Trump's closet in a "mess" after the search. He also claimed the investigators searched his son Barron's room.

Earlier this month, Trump claimed the FBI made him look sloppy by purposely scattering documents on the ground to photograph them during Mar-a-Lago raid. This was after the Department of Justice shared a photo that showed classified documents strewn about on a carpet.

"They took them out of cartons and spread them around on the carpet, making it look like a big 'find' for them," he wrote on Truth Social. "They dropped them, not me — Very deceiving…" he added.

"Perhaps pretending it was me that did it!" Trump added in a separate post the same day.

During the Mar-a-Lago search, the FBI seized 11 sets of classified documents, including some marked "top secret" and some that may have concerned nuclear weapons. The DOJ is looking into whether Trump broke any of three federal laws — including the Espionage Act — by keeping the documents at his Florida residence.

Representatives for the DOJ and Trump's post-presidential press office did not immediately respond to Insider's request for comment.

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Trump openly embraces, amplifies QAnon conspiracy theories
by David Klepper and Ali Swenson
AP News
September 16, 2022

After winking at QAnon for years, Donald Trump is overtly embracing the baseless conspiracy theory, even as the number of frightening real-world events linked to it grows.

On Tuesday, using his Truth Social platform, the Republican former president reposted an image of himself wearing a Q lapel pin overlaid with the words “The Storm is Coming.” In QAnon lore, the “storm” refers to Trump’s final victory, when supposedly he will regain power and his opponents will be tried, and potentially executed, on live television.

-- Trump openly embraces, amplifies QAnon conspiracy theories, by David Klepper and Ali Swenson

-- Triumph of the Will, directed by Leni Riefenstahl

After winking at QAnon for years, Donald Trump is overtly embracing the baseless conspiracy theory, even as the number of frightening real-world events linked to it grows.

On Tuesday, using his Truth Social platform, the Republican former president reposted an image of himself wearing a Q lapel pin overlaid with the words “The Storm is Coming.” In QAnon lore, the “storm” refers to Trump’s final victory, when supposedly he will regain power and his opponents will be tried, and potentially executed, on live television.

As Trump contemplates another run for the presidency and has become increasingly assertive in the Republican primary process during the midterm elections, his actions show that far from distancing himself from the political fringe, he is welcoming it.

He’s published dozens of recent Q-related posts, in contrast to 2020, when he claimed that while he didn’t know much about QAnon, he couldn’t disprove its conspiracy theory.

Pressed on QAnon theories that Trump allegedly is saving the nation from a satanic cult of child sex traffickers, he claimed ignorance but asked, “Is that supposed to be a bad thing?”

“If I can help save the world from problems, I’m willing to do it,” Trump said.

Trump’s recent postings have included images referring to himself as a martyr fighting criminals, psychopaths and the so-called deep state. In one now-deleted post from late August, he reposted a “q drop,” one of the cryptic message board postings that QAnon supporters claim come from an anonymous government worker with top secret clearance.

A Trump spokesperson did not respond to a request for comment.

Even when his posts haven’t referred to the conspiracy theory directly, Trump has amplified users who do. An Associated Press analysis found that of nearly 75 accounts Trump has reposted on his Truth Social profile in the past month, more than a third of them have promoted QAnon by sharing the movement’s slogans, videos or imagery. About 1 in 10 include QAnon language or links in their profile bios.

Earlier this month, Trump chose a QAnon song to close out a rally in Pennsylvania. The same song appears in one of his recent campaign videos and is titled “WWG1WGA,” an acronym used as a rallying cry for Q adherents that stands for “Where we go one, we go all.”

Online, Q adherents basked in Trump’s attention.

“Yup, haters!” wrote one commenter on an anonymous QAnon message board. “Trump re-truthed Q memes. And he’ll do it again, more and more of them, over and OVER, until (asterisk)everyone(asterisk) finally gets it. Make fun of us all you want, whatever! Soon Q will be everywhere!”

“Trump Sending a Clear Message Patriots,” a QAnon-linked account on Truth Social wrote. “He Re-Truthed This for a Reason.”

The former president may be seeking solidarity with his most loyal supporters at a time when he faces escalating investigations and potential challengers within his own party, according to Mia Bloom, a professor at Georgia State University who has studied QAnon and recently wrote a book about the group.

“These are people who have elevated Trump to messiah-like status, where only he can stop this cabal,” Bloom told the AP on Thursday. “That’s why you see so many images (in online QAnon spaces) of Trump as Jesus.”

On Truth Social, QAnon-affiliated accounts hail Trump as a hero and savior and vilify President Joe Biden by comparing him to Adolf Hitler or the devil. When Trump shares the content, they congratulate each other. Some accounts proudly display how many times Trump has “re-truthed” them in their bios.

By using their own language to directly address QAnon supporters, Trump is telling them that they’ve been right all along and that he shares their secret mission, according to Janet McIntosh, an anthropologist at Brandeis University who has studied QAnon’s use of language and symbols.

It also allows Trump to endorse their beliefs and their hope for a violent uprising without expressly saying so, she said, citing his recent post about “the storm” as a particularly frightening example.

“The ‘storm is coming’ is shorthand for something really dark that he’s not saying out loud,” McIntosh said. “This is a way for him to point to violence without explicitly calling for it. He is the prince of plausible deniability.”

Bloom predicted that Trump may later attempt to market Q-related merchandise or perhaps ask QAnon followers to donate to his legal defense.

Regardless of motive, Bloom said, it’s a reckless move that feeds a dangerous movement.

A growing list of criminal episodes has been linked to people who had expressed support for the conspiracy theory, which U.S. intelligence officials have warned could trigger more violence.

QAnon supporters were among those who violently stormed the Capitol during the failed Jan. 6, 2021, insurrection.

In November 2020, two men drove to a vote-counting site in Philadelphia in a Hummer adorned with QAnon stickers and loaded with a rifle, 100 rounds of ammunition and other weapons. Prosecutors alleged they were trying to interfere with the election.

Last year, a California man who told authorities he had been enlightened by QAnon was accused of killing his two children because he believed they had serpent DNA.

Last month, a Colorado woman was found guilty of attempting to kidnap her son from foster care after her daughter said she began associating with QAnon supporters. Other adherents have been accused of environmental vandalism, firing paintballs at military reservists, abducting a child in France and even killing a New York City mob boss.

On Sunday, police fatally shot a Michigan man who they say had killed his wife and severely injured his daughter. A surviving daughter told The Detroit News that she believes her father was motivated by QAnon.

“I think that he was always prone to (mental issues), but it really brought him down when he was reading all those weird things on the internet,” she told the newspaper.

The same weekend a Pennsylvania man who had reposted QAnon content on Facebook was arrested after he allegedly charged into a Dairy Queen with a gun, saying he wanted to kill all Democrats and restore Trump to power.

Major social media platforms including YouTube, Facebook and Twitter have banned content associated with QAnon and have suspended or blocked accounts that seek to spread it. That’s forced much of the group’s activities onto platforms that have less moderation, including Telegram, Gab and Trump’s struggling platform, Truth Social.

***

MAGA’S 'Weaponized Lies': Trump Touts QAnon, Posing Danger For GOP Ahead Of Midterms
by Ari Melber
MSNBC
Sep 19, 2022



A bizarre Trump rally in Ohio for GOP Senate candidate, J.D. Vance is putting the GOP in a bind. The New York Times reports music Trump played resembled a QAnon song and the crowds reacted to it with a salute. It comes after Trump openly embraced QAnon conspiracy theories online and in recent actions. The Washington Post saying it amounted to Trump asking “QAnon to stand back and stand by.” MSNBC’s Ari Melber reports on the rally and “the main-lining of weaponized lies and hate in the GOP and America.”

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Trump Was Warned Late Last Year of Potential Legal Peril Over Documents: A former White House lawyer sought to impress on him the need to return material he had taken with him upon leaving office.
by Maggie Haberman
New York Times
Sept. 19, 2022

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Eric Herschmann, center, warned former President Donald J. Trump late last year of legal liability if he did not return government materials he had taken when he left office.Credit...Drew Angerer/Getty Images

A onetime White House lawyer under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said.

The lawyer, Eric Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.

The account of the conversation is the latest evidence that Mr. Trump had been informed of the legal perils of holding onto material that is now at the heart of a Justice Department criminal investigation into his handling of the documents and the possibility that he or his aides engaged in obstruction.

In January, not long after the discussion with Mr. Herschmann, Mr. Trump turned over to the National Archives 15 boxes of material he had taken with him from the White House. Those boxes turned out to contain 184 classified documents, the Justice Department has said.

But Mr. Trump continued to hold onto a considerable cache of other documents, including some with the highest security classification, until returning some under subpoena in June and having even more seized in a court-authorized search of his Mar-a-Lago residence and private club by F.B.I. agents last month.

The precise date of the late 2021 meeting between Mr. Trump and Mr. Herschmann is unclear. It was also unclear what, if any, awareness Mr. Herschmann had of what was in the boxes when the subject was discussed.

But by then, the National Archives had told associates of Mr. Trump that it was missing documents like original copies of his presidential correspondence with the North Korean dictator Kim Jong-un and the letter left for him by President Barack Obama. Archives officials said they had been told by then that there were roughly two dozen boxes of documents that had been in the White House residence and which qualified as presidential records, which had never been sent to the archives.

By the time of the meeting, Mr. Herschmann, a former prosecutor, was not working with or for Mr. Trump, from whom the National Archives had spent months trying to procure missing material.

Mr. Trump thanked Mr. Herschmann for the discussion but was noncommittal about his plans for returning the documents, the people familiar with the conversation said.

Mr. Herschmann, who defended Mr. Trump during his first impeachment trial but tried to stop several efforts by outside advisers aimed at keeping him in power after he lost the 2020 election, declined to comment. A spokesman for Mr. Trump did not immediately respond to a request for comment.

More on the Trump Documents Inquiry

Special Master: A federal judge granted former President Donald J. Trump’s request for an independent arbiter, known as a special master, to review the documents that the F.B.I. had seized from Mar-a-Lago, appointing Judge Raymond J. Dearie of the Federal District Court in Brooklyn.

Access to Sensitive Records: The same federal judge enacted, and later refused to lift, a temporary ban on the Justice Department’s ability to access classified documents seized from Mr. Trump’s home. On Sept. 16, the agency asked an appeals court to let the F.B.I. regain access to the documents.

Misleading Information: The National Archives told the Justice Department that a lawyer representing Mr. Trump indicated to the archives last year that boxes the former president had taken to Mar-a-Lago from the White House included only nonclassified material, according to a person briefed on the matter.

The meeting between Mr. Herschmann and Mr. Trump has not been previously reported, and it adds to the picture of Mr. Trump’s interactions with several people about returning the documents in the months before the National Archives retrieved 15 boxes of material in January of this year. When they went through the boxes, officials at the archives discovered that they contained nearly 200 individual classified documents.

It was not immediately clear if the meeting was solely related to the discussion about the documents, or if it was about other issues.

Some of Mr. Trump’s advisers, including informal ones such as Tom Fitton, of the conservative legal advocacy group Judicial Watch, have told the former president that he could hold onto the documents as personal records, according to people briefed on their discussions.

Mr. Trump is facing not just the investigation over potential mishandling of government records, but also a number of other inquiries, including a wide-ranging Justice Department investigation into what led to the Jan. 6, 2021, attack on the Capitol and a state investigation in Georgia into efforts to overturn the outcome of the 2020 election.

Lawyers for Mr. Trump turned over an additional set of classified documents in June. The F.B.I. then carried out a search warrant at Mar-a-Lago on Aug. 8 and retrieved more than 100 additional individual documents with classified markings.

A federal judge in Florida has at least temporarily barred the Justice Department from using the material seized in the search in pursuing its criminal investigation. On Friday, the department asked a federal appeals court to let the F.B.I. regain access to those 100 or so sensitive documents so it could continue the inquiry and assess the national security risks stemming from Mr. Trump keeping them in an unsecured location.

The special master appointed to determine whether the material seized in the search is subject to attorney-client privilege or executive privilege is scheduled to meet with lawyers for Mr. Trump and the Justice Department on Tuesday.

The first filings before Judge Raymond J. Dearie, the special master, suggested that the Trump legal team was not happy with early signs of how quickly he appears poised to try to resolve the matter.

Judge Dearie had invited the Justice Department and the Trump legal team to submit letters on Monday proposing what they should talk about at a first meeting in his courtroom in the federal courthouse in Brooklyn on Tuesday.

He also circulated a proposed calendar, which was not made public, for how the work flow could unfold.

In its submission, the Trump legal team complained about that calendar. For example, Judge Dearie apparently proposed that both sides complete their sifting of the documents and proposals for how to label them by Oct. 7. After that deadline, Judge Dearie would write a report to a Trump-appointed judge, Aileen M. Cannon, who named him special master and set an overall deadline of Nov. 30, recommending how she should rule about any disagreements.

The Trump legal team said Oct. 7 was far too early a date for that phase of the work to be done, writing: “We respectfully suggest that all of the deadlines can be extended to allow for a more realistic and complete assessment of the areas of disagreement.”

Mr. Trump’s team had recommended Judge Dearie as a possible special master, and the Justice Department agreed.

The website Axios reported that the Trump team did so because the lawyers believed that the judge shared their skepticism of the F.B.I., because he was one of the judges on the Foreign Intelligence Surveillance Court who approved of warrants to surveil a 2016 Trump campaign adviser named Carter Page. Two of the four warrants the court approved were later declared invalid.

Charlie Savage contributed reporting.

Maggie Haberman is a White House correspondent. She joined The Times in 2015 as a campaign correspondent and was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. @maggieNYT

A version of this article appears in print on Sept. 20, 2022, Section A, Page 24 of the New York edition with the headline: Trump Was Warned Late Last Year of Potential Legal Jeopardy Over Cache of Documents.

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Trump lawyers acknowledge Mar-a-Lago probe could lead to indictment: Explaining whether Trump declassified documents could be ‘a defense’ to a future criminal charge, attorneys say
by Perry Stein and Devlin Barrett
The Washington Post
September 19, 2022 at 10:12 p.m. EDT

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Special master Raymond J. Dearie — a former chief federal judge in New York — is scheduled to meet for the first time with Trump’s lawyers and Justice Department prosecutors on Tuesday. (Gregory P. Mango)

The Justice Department and lawyers for Donald Trump filed separate proposals Monday for conducting an outside review of documents seized at the former president’s Mar-a-Lago home, with key disagreements over how the process should work and Trump’s team acknowledging that the criminal probe could lead to an indictment.

Both sides referenced a “draft plan” given to them by Judge Raymond J. Dearie, the newly appointed special master. Trump’s lawyers expressed concern that Dearie posed questions about the documents that the judge who appointed Dearie has left unasked, arguing that Trump might be left at a legal disadvantage if he answered them at this stage of the process.

Specifically, the legal team objected to what it said was Dearie’s request that it “disclose specific information regarding declassification to the Court and to the Government.”

Judge Aileen M. Cannon, who is overseeing the special master and document-review process, has not asked Trump’s lawyers to address whether about 100 documents with classified markings that were seized by the FBI on Aug. 8 might in fact not be classified.

Trump’s lawyers have repeatedly suggested in court filings that the former president could have declassified the documents — but they have not actually asserted that he did so.

In Monday’s filing, Trump’s lawyers wrote that they don’t want Dearie to force Trump to “fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order” — a remarkable statement that acknowledges at least the possibility that the former president or his aides could be criminally charged.

The Justice Department is investigating the possible mishandling of classified documents at Mar-a-Lago, and the possible hiding or destroying of government records. A key issue in the probe is that even after Trump’s team responded to a grand jury subpoena requesting all documents with classified markings that were being kept at Mar-a-Lago, with aides reportedly saying all relevant material had been handed over, the FBI search turned up about 100 more such documents.

The government’s filing Monday evening did not address how Dearie should review the classified documents. Prosecutors said they were waiting to see if the U.S. Court of Appeals for the 11th Circuit in Atlanta would grant their request to stay Cannon’s decision to include the classified documents in the special master review — leaving about 11,000 nonclassified documents and other items.

Prosecutors have said the classified material is by definition the property of the government and cannot be shielded from them by privilege. Cannon’s order barred prosecutors from using the classified materials in their criminal probe until the outside review is complete.

Dearie — a former chief federal judge in New York — is scheduled to meet for the first time with Trump’s lawyers and Justice Department prosecutors Tuesday afternoon. The session, in Dearie’s courtroom in the Brooklyn federal courthouse, will focus on how to proceed.

The Justice Department’s filing said a third-party vendor should be hired to scan the seized documents into a secure software system. Trump’s lawyers would then review the nonclassified documents and decide which should be shielded from criminal investigators because of attorney-client or executive privilege. Prosecutors would note any disagreement with Trump’s defense team, and Dearie would settle any disputes.

“FBI agents will attend and observe the scanning process to maintain the chain of custody of the evidence,” the government wrote.

In earlier filings, the Justice Department had unsuccessfully argued that a special master was unnecessary and that, as a former president, Trump could not assert executive privilege in this investigation. Prosecutors also said that temporarily barring the government from using the documents in its investigation could pose a national security risk.

But Cannon disagreed.

She has ordered Dearie to complete his review by Nov. 30 and said he should prioritize sorting through the classified documents, though she did not provide a timeline as to when that portion must be completed. The Justice Department said it hopes its Monday proposal helps complete the review in an “efficient and timely manner.”

Trump’s team said in its filing that the government should begin to make the classified documents available for review as soon as next week by Dearie — who previously served on the Foreign Intelligence Surveillance Court, which handles sensitive national security cases.

The Justice Department urged Dearie in its Monday filing to check in with the National Archives and Records Administration — the federal agency charged with maintaining and tracking government records — as he conducts the review.

It also proposed that Dearie conduct weekly reviews with the parties by video or audio conference to resolve questions and ensure smooth operation of the review process.

The government has said that it already reviewed all the seized documents prior to Trump requesting a special master, to separate out any that should be shielded from investigators because of attorney-client privilege. That filter team, approved by the magistrate judge who also approved the search warrant, set aside 64 sets of documents — made up of some 520 pages — that might be considered protected by attorney-client privilege, the government has said.

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Trump team says it doesn’t want to immediately disclose certain ‘declassification’ information in special master review
by Tierney Sneed, Holmes Lybrand and Hannah Rabinowitz
CNN
Updated 10:26 PM EDT, Mon September 19, 2022

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CNN — Lawyers for former President Donald Trump signaled Monday that they oppose having to immediately make disclosures about declassification related to the Mar-a-Lago documents as part of the special master process ordered by a federal judge this month.

In a letter to US District Judge Raymond Dearie, who was tapped to serve as an independent third party to review the documents the FBI seized during a search of the former President’s residence and resort, Trump’s lawyers referenced a non-public draft plan for the review that Dearie circulated among the parties ahead of a status conference set for Tuesday.

The draft plan, according to Trump’s letter, “requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government.”

“We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property,” the letter said, referring to a type of motion that can be filed calling for the return of property that was unlawfully seized in a search.

“Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order,” the Trump team’s letter continued.

In her ruling denying prosecutors’ request for a stay last week, Judge Aileen Cannon ordered that the special master review – conducted by Dearie and involving approximately 11,000 documents – be finished by the end of November. The preliminary conference is scheduled before Dearie on Tuesday at the federal courthouse in Brooklyn, New York.

In their filing, the former President’s lawyers additionally flagged concerns with the draft plan’s apparent proposal to have the Rule 41 motions litigated in the docket before US Magistrate Judge Bruce Reinhart, the judge who approved the warrant for the FBI’s search. The Trump attorneys argued that Cannon, a Trump appointee who appointed the special master, intended for that litigation to happen through the special master process, with Dearie’s recommendations ultimately reported to her.

Trump’s lawyers, in their letter to Dearie, also suggested pushing back some of the interim deadlines that were laid out in the draft plan.

“While we have concerns about the inclusion of two aspects within the Draft Plan (timing of any declassification disclosures and briefing regarding reversion to the issuing magistrate), we are otherwise in general agreement with Your Honor’s proposed sequencing but suggest addressing the potential deadlines at tomorrow’s status conference,” the Trump attorneys wrote.

In a separate filing on Monday, the Justice Department proposed a system for the special master to review the documents seized from Trump’s Palm Beach residence and resort.

In order for both the Trump team and prosecutors to evaluate evidence at the same time, prosecutors suggested in the filing that the documents be uploaded to a third-party online platform.

The Justice Department suggested that the third-party vendor “batch out” documents on a rolling basis as they are scanned to both prosecutors and Trump’s defense team. The lawyers should plan to sort through about 500 documents every business day, DOJ said.

As the review begins, prosecutors suggested that Dearie host “weekly reviews” with both parties to “resolve questions and ensure smooth operation of the review process.”

The department also said it would propose a protective order for Cannon’s approval, which makes leaking details from the seized collection punishable by contempt of court “or any other legally available sanction that the Court deems appropriate.”

In its filing, the DOJ noted that if the 11th Circuit US Court of Appeals grants its request to block parts of Cannon’s order requiring a special master, Dearie would not be permitted to review the more than 100 documents marked classified.

“If the Eleventh Circuit does not stay the review of the documents with classification markings, the government will propose a way forward,” prosecutors wrote in the filing.

This story has been updated with additional developments Monday.